What's happening
This bill requires video recording of certain custodial interrogations and eyewitness identification procedures to improve accuracy and transparency in New York's criminal justice system.
Why it matters
Reduces risk of false confessions and wrongful convictions. by requiring video recording of custodial interrogations and eyewitness identification procedures for serious crimes, providing a clear record of what actually occurred during these critical moments.
Strengthens defendants' rights and jury decision-making. by mandating that, when a required recording is missing, courts must consider this absence and instruct juries that lack of a recording can be weighed against the prosecution’s evidence.
Improves police practices and accountability. by standardizing evidence-based protocols for eyewitness identification, including “blind” administration (where the officer doesn’t know the suspect), to minimize suggestion and bias, and requiring comprehensive training for law enforcement.
Modernizes juvenile justice protections. by extending video recording and procedural safeguards to interrogations of children in designated facilities, aiming to prevent coerced or unreliable statements from vulnerable youth.
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Headline styles
Mandate Interrogation Video Recording
Plain English, a few words. Used as the page title.
Sponsors
1 Co-sponsor
History
- Referred to codes
- Referred to codes
Companion bill
The same bill in the other chamber. A bill becomes law when one version passes both houses and the governor signs it, so either number can carry it.
Require Video of Interrogations
In Assembly Committee · Codes · Sponsor Joseph Lentol
Full text
9 pagesUnderlined is new[Struck] is removedOfficial text on nysenate.gov ↗
STATE OF NEW YORK
4826
2017-2018 Regular Sessions
IN SENATE
March 2, 2017
Introduced by Sen. BAILEY -- read twice and ordered printed, and when printed to be committed to the Committee on Codes
AN ACT to amend the criminal procedure law, the family court act and the executive law, in relation to statements of those accused of crimes and eyewitness identifications, to enhance criminal investigations and prosecutions and to promote confidence in the criminal justice system of this state
The People of the State of New York, represented in Senate and Assembly, do enact as follows:
Section 1. Section 60.45 of the criminal procedure law is amended by adding a new subdivision 3 to read as follows:
3. (a) When a person is subject to interrogation by a public servant at a detention facility, and the public servant is aware or has reason to suspect that the person interrogated committed a crime under investigation by such public servant or a law enforcement entity associated with such public servant, the entire interrogation, including the giving of any required advice of the rights of the individual being questioned, and the waiver of any rights by the individual, shall be recorded by an appropriate video recording device, if the interrogation involves a class A-1 felony or a violent felony offense as defined in section 70.02 of the penal law. The interrogation shall be recorded in a manner such that the persons in the recording are shown and the speech is intelligible. Such recording may also be conducted outside of a detention facility. For purposes of this paragraph, the term "detention facility" shall mean a police station, correctional facility, holding facility for prisoners, prosecutor's office or other facility where persons are held in detention in connection with criminal charges that have been or may be filed against them.
(b) No confession, admission or other statement shall be subject to a motion to suppress pursuant to subdivision three of section 710.20 of this chapter based solely upon the failure to video record such interro-
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03939-02-7
S. 4826 2
gation in a detention facility as defined in paragraph (a) of this subdivision. However, when the people offer into evidence against a defendant a confession, admission or other statement made by a person with respect to an alleged offense specified in paragraph (a) of this subdivision that has not been video recorded, the court shall consider the failure to record as a factor, in accordance with paragraph (c) of this subdivision, in determining whether such confession, admission or other statement shall be admissible.
(c) Notwithstanding the requirement of paragraph (a) of this subdivision, following a written motion of the prosecutor asserting good cause pursuant to this paragraph, filed within the time periods specified in section 710.30 of this chapter, and after an opportunity for a hearing, upon clear and convincing proof of such good cause, the court may find that such interrogation need not have been recorded. Such good cause may include the following:
(i) The video recording equipment malfunctioned while the recording of the interrogation was attempted.
(ii) Video recording equipment was not reasonably available because it was being used to record other interrogations in accordance with this section, and no such interrogation could reasonably have been delayed.
(iii) The statement was made in response to pedigree questions that are reasonably and routinely asked during arrest processing.
(iv) The statement was made spontaneously by the individual and not in response to questioning by a public servant.
(v) The statement was made during an interrogation that was conducted when the interviewer was unaware and had no reason to suspect that a qualifying offense may have occurred.
(vi) The statement was made after the individual voluntarily, and without express or implied encouragement by a public servant, refused to participate in the interrogation if recorded, and the circumstances of the refusal were recorded or, if such a record of the refusal was refused as well, reasonably contemporaneous documentation of the circumstances of the refusal was made.
(vii) It was the reasonable belief of the appropriate law enforcement official or officials that a video recording would jeopardize the safety of a specific person or persons or reveal the identity of one or more specific confidential informants, and reasonably contemporaneous documentation of the circumstances of such belief was made.
(viii) Such statement was made at a location not equipped with an appropriate recording device, it was not reasonably possible, under the circumstances, to bring equipment to such location or transfer the individual to a detention facility for interrogation, and the reason for using such location was not to subvert the intent of the law. For purposes of this section, the term "location" shall include those locations specified in paragraph (b) of subdivision four of section 305.2 of the family court act.
(d) In the event that an interrogation that qualified for recording under paragraph (a) of this subdivision was not recorded and the court determines that the non-recorded, alleged confession, admission or other statement is lawfully admissible, then, upon request of the defendant, the court must instruct the jury that the law generally requires recording under such circumstances and that the people's failure to record the defendant's alleged confession, admission or other statement may be considered in its deliberations, including, but not limited to, in determining whether such alleged confession, admission or other statement was voluntarily made, is accurate or truthful, or was made at all.
S. 4826 3
When so instructing the jury, if the court has found that good cause for non-recording existed in accordance with paragraph (c) of this subdivision, the court, at the request of the people, shall advise the jury of the factor or factors set forth in paragraph (c) of this subdivision that the court found to be proved, without disclosing the court's finding with respect thereto, and advise the jury that it may make an independent determination concerning what weight, if any, to give to the failure to record.
(e) Video recording as required by this section shall be conducted in accordance with standards consistent with this subdivision established in regulations by the division of criminal justice services.
§ 2. Subdivision 8 of section 305.2 of the family court act, as amended by chapter 398 of the laws of 1983, is amended and a new subdivision 5-a is added to read as follows:
5-a. When at any time a child is subject to interrogation by a public servant at a facility designated by the chief administrator of the courts as a suitable place for the questioning of juveniles pursuant to subdivision four of this section, and the public servant is aware or has reason to suspect that the child interrogated committed an act that would be a crime if committed by an adult and which is under investigation by such public servant or a law enforcement entity associated with such public servant, the entire interrogation, including the giving of any required notice to the child as to his or her rights and his or her waiver of any rights, shall be video recorded and governed in accordance with the provisions of subdivision three of section 60.45 of the criminal procedure law. The interrogation shall be recorded in a manner such that the persons in the recording are shown and the speech is intelligible. A copy of the recording shall be subject to discovery pursuant to section 331.2 of this article. This subdivision shall not apply to a statement made to the probation service, in accordance with subdivision seven of section 308.1 of this part, except when such statement may be admissible under such subdivision seven of section 308.1.
8. In determining the suitability of questioning and determining the reasonable period of time for questioning such a child, the child's age, the presence or absence of his or her parents or other persons legally responsible for his or her care [and], notification pursuant to subdivision three and, where the child has been interrogated at a facility designated by the chief administrator of the courts as a suitable place for the questioning of juveniles, whether the interrogation was in compliance with the video-recording and disclosure requirements of subdivision five-a of this section shall be included among relevant considerations.
§ 3. Subdivision 3 of section 344.2 of the family court act is renumbered subdivision 4 and a new subdivision 3 is added to read as follows:
3. When at any time a child is subject to interrogation by a public servant at a facility designated by the chief administrator of the courts as a suitable place for the questioning of juveniles pursuant to subdivision four of section 305.2 of this article, and the public servant is aware or has reason to suspect that the child interrogated committed an act that would constitute a crime if committed by an adult and which is under investigation by such public servant or a law enforcement entity associated with such public servant, the entire interrogation, including the giving of any required notice to the child as to his or her rights and his or her waiver of any rights, shall be video recorded and governed in accordance with the provisions of subdivision three of section 60.45 of the criminal procedure law. The inter-
S. 4826 4
rogation shall be recorded in a manner such that the persons in the recording are shown and the speech is intelligible. A copy of the recording shall be subject to discovery pursuant to section 331.2 of this article. This subdivision shall not apply to a statement made to the probation service, in accordance with subdivision seven of section 308.1 of this article, except when such statement may be admissible under such subdivision seven of section 308.1.
§ 4. Section 60.25 of the criminal procedure law, subparagraph (ii) of paragraph (a) of subdivision 1 as amended by chapter 479 of the laws of 1977, is amended to read as follows: § 60.25 Rules of evidence; identification by means of previous recogni-
tion, in absence of present identification.
1. In any criminal proceeding in which the defendant's commission of an offense is in issue, testimony as provided in subdivision two may be given by a witness when:
(a) Such witness testifies that:
(i) He or she observed the person claimed by the people to be the defendant either at the time and place of the commission of the offense or upon some other occasion relevant to the case; and
(ii) On a subsequent occasion he or she observed, under circumstances consistent with such rights as an accused person may derive under the constitution of this state or of the United States, a person or, where the observation is made pursuant to a blind procedure as defined in paragraph (c) of this subdivision, a pictorial, photographic, electronic, filmed or video recorded reproduction of a person whom he or she recognized as the same person whom he or she had observed on the first or incriminating occasion; and
(iii) He or she is unable at the proceeding to state, on the basis of present recollection, whether or not the defendant is the person in question; and
(b) It is established that the defendant is in fact the person whom the witness observed and recognized or whose pictorial, photographic, electronic, filmed or video recorded reproduction the witness observed and recognized on the second occasion. Such fact may be established by testimony of another person or persons to whom the witness promptly declared his or her recognition on such occasion and by such pictorial, photographic, electronic, filmed or video recorded reproduction.
(c) (i) For purposes of this section, a "blind procedure" is one in which the witness identifies a person in an array of pictorial, photographic, electronic, filmed or video recorded reproductions under circumstances that comply with the applicable provisions of section 60.80 of the criminal procedure law and the protocols promulgated in accordance with subdivision twenty-one of section eight hundred thirtyseven of the executive law and where, at the time the identification is made, each public servant administering such procedure and with whom the witness communicates with respect to the conducting of such procedure does not know which person in the array is the suspect.
(ii) The failure of a public servant to follow such a procedure shall result in the preclusion of testimony regarding the identification procedure as evidence in chief, but shall not, in and of itself, constitute a legal basis to suppress evidence in response to a motion made pursuant to subdivision six of section 710.20 of this chapter. This paragraph, in and of itself, neither limits nor expands subdivision six of section 710.20 of this chapter.
2. Under circumstances prescribed in subdivision one of this section, such witness may testify at the criminal proceeding that the person whom
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he or she observed and recognized or whose pictorial, photographic, electronic, filmed or video recorded reproduction he or she observed and recognized on the second occasion is the same person whom he or she observed on the first or incriminating occasion. Such testimony, together with the evidence that the defendant is in fact the person whom the witness observed and recognized or whose pictorial, photographic, electronic, filmed or video recorded reproduction he or she observed and recognized on the second occasion, constitutes evidence in chief.
§ 5. Section 60.30 of the criminal procedure law, as amended by chapter 479 of the laws of 1977, is amended to read as follows: § 60.30 Rules of evidence; identification by means of previous recogni-
tion, in addition to present identification.
Reflowed for reading: line numbers and page breaks removed. Cite the official text.
Sponsor's memo
Title of bill
An act to amend the criminal procedure law, the family court act and the executive law, in relation to statements of those accused of crimes and eyewitness identifications, to enhance criminal investigations and prosecutions and to promote confidence in the criminal justice system of this state
Summary of provisions
Bill section one would require that certain interrogations of suspects conducted in a detention facility be video-recorded. Recording would be required when the public servant conducting the interrogation is aware or has reason to suspect that the person interrogated committed a crime under investigation by such public servant or a law enforcement entity associated with him or her. Recording would be required if the interrogation involves a class A-1 felony or a violent felony offense as defined in section 70.02 of the Penal Law.
If an interrogation that was required to be recorded was not recorded, but it is determined to be otherwise admissible, the jury would be instructed about the recording requirement and that it may consider the failure to record as a factor in determining whether the unrecorded statement was voluntarily made, is accurate or truthful or was made at all. Further, if the prosecutor has demonstrated good cause as described in the bill for the failure to record, the jury would the instructed concerning such good cause factor or factors. Bill sections two and three extend a similar recording requirement to interrogation of children in juvenile delinquency cases brought under Article 3 of the Family Court Act. These provisions are similar to a proposal offered by the Family Court Advisory and Rules Committee of the Chief Administrative Judge of the Courts of the State of New York. (See A. 9770 of 2016.)
Read the full memo (1,152 words)
Bill sections four, five, eight, nine and ten would enact a significant change in the admissibility of certain photographic identification procedures in New York. Under current law, an eyewitness can offer testimony in court identifying the person she believes she observed committing the crime, or at some other time relevant to the crime charged. The eyewitness may also testify in the prosecution's case in chief that she identified that same person (i.e., the defendant) at an earlier time during an in-person identification procedure (such as a line-up). But current law does not allow third-person testimony during the prosecution's case in chief that the eyewitness previously identified this same person in a photographic array or photographic lineup. (Such testimony concerning a previous photographic identification may be heard in the prosecution's rebuttal case or redirect, if, for example, the defendant claims recent fabrication.)
The reasons for the current rule were stated by Judge VanVoorhis for a unanimous Court of Appeals in People v. Caserta, 19 NY2d 18 (1966):
Where the opportunity for observation is limited and the opportunity and ability of the witness to identify the defendant is questionable, it is all too easy to bolster such testimony by calling a succession of witnesses who swear that they saw and heard him identify the same person upon previous occasions. This tends to give the idea to a jury that there is an impressive amount of testimony to identification when such is really not the fact. As for previous identification from photographs, not only is it readily possible to distort pictures as affecting identity, but also where the identification is from photographs in the rogues' gallery (even though the name or number on the picture has been exscinded) the inference to the jury is obvious that the person has been in trouble with the law before.
These bill sections would overrule Caserta to allow testimony by another person, concerning an eyewitness's previous photographic identification of the defendant, as a part of the prosecution's case in chief, where such earlier identification procedure complied with the improved identification procedures enacted in other sections of this bill.
Bill section six establishes requirements for photographic arrays and live-lineup procedures, designed to protect against suggestiveness and help assure the accuracy of these eyewitness identification procedures. Bill section eight provides that, when considering a motion to suppress eyewitness testimony, the court may consider as a factor any failure to comply with these requirements and the implementing protocols adopted and distributed by the NYS Division of Criminal Justice Services (see bill sections eleven and twelve), but that such noncompliance shall not, standing alone, constitute a legal basis to suppress evidence under Criminal Procedure Law § 710.20 (6). These various provisions apply equally in juvenile delinquency proceedings, in accordance with section 330.2 (1) of the Family Court Act.
Bill section thirteen provides that the, provisions of the shall take effect in ninety days.
Purpose or general idea of bill
To improve the system of criminal justice investigations and prosecutions in the state by ensuring the integrity and fairness.
Justification
New York State ranks second in the nation for the number of persons exonerated of crimes for which they had been wrongfully convicted. While advances in forensic science and the presence of committed and able innocence advocates may account for our high ranking, so, too, does the failure of New York's criminal justice system. Although technological achievements in DNA testing have resulted in many exonerations, the reality is that most criminal cases do not have DNA evidence available.
The large numbers of exonerations over the last several years has created a crisis in confidence in the criminal justice system which undermines our courts and the rule of law. These shortcomings will continue to plague our criminal justice system unless we enact major structural reforms to help ensure that our criminal procedures are fair and produce just and reliable outcomes. A failure to act will haunt us until we enact meaningful and comprehensive changes.
Studies have shown that false confessions and eyewitness misidentifications are among the leading the causes of wrongful convictions. Two reforms that have proven effective in reducing the incidence of wrongful convictions are the recording of interrogations and the modernization of eyewitness identification procedures that incorporate advances in eyewitness memory science. Therefore, this bill would require the recording of interrogations in certain cases and enact a series of new requirements for photographic arrays and live-lineup procedures designed to protect against suggestiveness and help assure the accuracy of these eyewitness identification.
Any potential costs associated with the implementation of these new provisions pale in comparison to the wrongs committed when innocent men and women are imprisoned. Enacting reforms to reduce the likelihood of wrongful convictions means that more crimes will be solved, the truly guilty perpetrators will be caught and localities and the state will no longer be required to pay out millions of tax
dollars in judgments to exonerees. These reforms will also help to renew faith in a criminal justice system.
Legislative history
2015-16: A8157-B(Lentol)- Referred to Codes
Fiscal implications
Undetermined.
Effective date
The provisions of the bill shall take effect in ninety days.
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