Relates to requiring the video recording of interrogations of juveniles in juvenile delinquency proceedings in family court

This measure amends sections 305.2 and 344.2 of the Family Court Act to require video recording of entire interrogations of juveniles, including the provision of Miranda warnings and the waiver, if any, of rights by the juveniles. The requirement applies to interrogations that take place in law enforcement facilities which, pursuant to Family Court Act § 305.2(4) and section 205.20 of the Uniform Rules of the Family Court, must be in rooms that have been inspected and approved by the Chief Administrator of the Courts for the questioning of youth. The recording must ensure that all participants are identifiable, that the speech is intelligible and that it complies with rules to be promulgated by the New York State Division of Criminal Justice Services. As is applicable to other statements by juveniles, the recording would be subject to discovery pursuant to Family Court Act § 331.2. Further, like other factors in juvenile delinquency Huntley hearings, including the presence or absence of parents, location of questioning and the validity of any waiver of rights, the fact and quality of the recording would be among the factors comprising the totality of circumstances affecting the admissibility of accused juveniles' statements.

The emerging consensus favoring recording of interrogations in criminal proceedings has been particularly evident in all sectors of the State's justice system. The New York State Justice Task Force, established by former Chief Judge Jonathan Lippman and chaired by Hon. Janet DiFiore, in January, 2012, issued "Recommendations Regarding Electronic Recording of Custodial Interrogations" as one means of ameliorating the problem of false confessions that has led to wrongful convictions:

The reform most universally urged by academics and others and most commonly adopted in other jurisdictions to identify and prevent false confessions is electronic recording of interrogations. Indeed, there was unanimous agreement on the Task Force about the many benefits of recording interrogations. The Task Force agreed that recording can aid not only the innocent, the defense and the prosecution, but also enhances public confidence in the criminal justice system by increasing transparency as to what was said and done during the interrogation.

Indeed, among its many benefits, recording helps identify false confessions; provides an objective and reliable record of what occurred during an interrogation; assists the judge and jury in determining a statement's voluntariness and reliability; prevents disputes about how an officer conducted himself or treated a suspect, and serves as a useful training tool to police officers.

Id. at p. 2.

While urging that recording be mandatory at least in certain circumstances, the Task Force noted the voluntary guidelines adopted in December, 2010, by the New York State District Attorneys Association that were developed in conjunction with the New York City Police Department, the New York State Police, the New York State Chiefs of Police Association, and the New York State Sheriffs' Association. Id. at p. 2, note 2. These New York State Guidelines for Recording Custodial Interrogations of Suspects, inter alia, at pps 6-7, noted that questioning of accused juvenile delinquents should be recorded in court-approved juvenile questioning rooms upon compliance with parental notification requirements and suggested that simplified Miranda warnings be used. Since 2007, State funds have been made available to assist prosecutors and law enforcement in communities both large and small to expand their capacities to record interrogations. See T. Sullivan, "Arguing for Statewide Uniformity in Recording Custodial Interrogations," 29 Criminal Justice 21 (Spring, 2014); K. Hamann, "Outside Counsel: Police and District Attorneys Endorse Video Recording of Interrogations," N.Y.L.J., Aug. 8, 2011. In a press release, on July 15, 2013, announcing one million dollars in State funds to expand video recording throughout the State, Governor Cuomo indicated that 345 police agencies in 58 of the 62 counties were already video recording interrogations.{1}

The factors favoring video recording of interrogations of adults are magnified when applied to juveniles accused of acts of delinquency. The International Association of Chiefs of Police, in its publication, Reducing Risks: An Executive's Guide to Effective Juvenile Interview and Interrogation (IACP, Sept., 2012; www.iacp.org), recommended video recording of juvenile interrogations on the ground that the lack of full development of the pre-frontal cortex in adolescents, which governs judgment, decision-making and understanding of consequences, makes them more vulnerable to making false confessions.{2} These adolescent development factors were central to the decisions of the United States Supreme Court in the cases outlawing the juvenile death penalty, limiting life without parole and requiring age to be considered a factor in determining whether a school-based police interrogation was custodial for purposes of assessing the voluntariness of the juvenile's waiver of the right to counsel. See Roper v. Simmons, 543 U.S. 551 (2005); Miller v. Alabama, 132 S.Ct. 2455 (2012); J.D.B. v. North Carolina, 131 S.Ct. 2394 (2011); Graham v. Florida, 130 S.Ct. 2011 (2010).

The movement toward requiring video recording of interrogations of juveniles has been advancing nationally. By 2012, when the IACP report was issued, there were 16 States that mandated recording by statute or case law, in addition to the many states with legislation pending. Particularly noteworthy among these statutes are those in Illinois and

North Carolina.{3} Additionally, the Wisconsin Supreme Court, in In Re Jerrell C.J., 699 N.W. 2d 110 (Wis., 2005), used its supervisory authority to require video recording of juvenile interrogations.

The benefits not only to the juveniles, but also to the justice system, of enacting a mandate to record interrogations of juveniles in New York are substantial. Requiring a transparent interrogation process will not only assist in preventing false confessions and wrongful adjudications but will provide an objective basis for the Family Court to evaluate the validity of a juveniles' waivers of rights as well as the substance of the statements themselves. Judges have reported frequent cases involving disparities in testimony between witnesses to the interrogation, e.g., parents and police officers. Having an objective basis upon which the Court can determine the accuracy of witnesses' testimony will be invaluable. It protects the juveniles' statutory and constitutional rights, while at the same time protecting law enforcement by providing a reliable record of the circumstances surrounding interrogations and their compliance with statutory requirements and protocols. Further, it is likely to reduce the number of contested suppression hearings, thus facilitating expeditious resolution and timely adjudication of juvenile delinquency cases. Finally, enactment of this measure would not only be beneficial; it would also be practical and non-burdensome, as inexpensive and unobtrusive recording equipment is already widely available to law enforcement and prosecutors' agencies.

This measure, which would have no fiscal impact on the State, would take effect on the first of November in the year next succeeding the year in which this act shall have become a law; and shall apply only to confessions, admissions or other statements made on or after such effective date; provided, further, that the Division of Criminal Justice Services shall promulgate rules necessary to implement this act in advance of its effective date.

Legislative history

Senate 7082 (Senator Avella) (reported and committed to Finance) Assembly 9770 (M. of A. Harris) (reported referred to Codes)

{1} Press release, "Governor Cuomo Announces One Million Dollars to Help Law Enforcement Purchase Equipment to Video Record Interrogations" (July 15, 2013). Also, the New York State District Attorneys Association indicated that as of June, 2013, there were already more than 380 video recording facilities in counties throughout the State. See Letter in support of S 4484-a/A 6800., dated June 21, 2013, from Cyrus Vance, then-President, New York State District Attorneys Association.

{2} The report cited three studies: a study of 340 wrongful convictions in which 42% of the juveniles falsely confessed, as compared to 13% of the adults; a study of 125 proven false confessions, in which 32% involved youth under 18; and a study of juvenile wrongful convictions that found that youth "were almost twice as likely as adults to falsely confess." IACP, supra, p. 6, notes 7-9 {citing S. Gross, et al, "Exonerations in the United States 1989-2003," 95 J. Of Crim. Law & Criminology 2:523-560 (2005); S. Drizin and R. Leo, "The Problem of False Confessions in a post-DNA World," 82 N.C.L.Rev. 891 (2004); J. Tepler, L. Nirider and L.Tricarico, "Arresting Development: Convictions of Innocent Youth," 62 Rutgers L.Rev. 4:887 (2010)}.

{3} West's Smith-Hurd Illinois Compiled Stats. Ann., ch. 705 § 5-5-401.5 (effective July 16, 2014); West's N.C. Stats. Ann. § 15A-211 (effective Dec, 1, 2011).