Record Juvenile Interrogations

This measure amends sections 305.2 and 344.2 of the Family Court Act to require video recording of the entirety of interrogations in all juve- nile cases, including the provision of Miranda warnings and the waiver, if any, of rights by the juveniles. As in chapter 59 of the Laws of 2017, the measure requires that recording procedures be consistent with regulations to be promulgated by the Division of Criminal Justice Services. The measure 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. All persons in the recording must be identifiable and the speech must be intelligible. As is applica- ble 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 factors comprising the totality of circumstances affecting admissibility of accused juveniles' statements. As provided in chapter 59, failure to record would not, by itself, be a ground for granting a suppression motion.

The widespread recognition of the value of recording interrogations reflects its advantages in enhancing the accuracy of the criminal proc- ess, advantages that may be even more compelling in juvenile cases. Our Justice Task Force, in January, 2012, issued "Recommendations Regarding Electronic Recording of Custodial Interrogations" as one means of amel- iorating 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 record- ing 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 transpar- ency 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 circum- stances, the Task Force acknowledged 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 Depart- ment, 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 Interro- gations of Suspects, inter alia, at pps 6-7, noted that questioning of accused juvenile delinquents should be recorded in court-approved juve- nile questioning rooms upon compliance with parental notification requirements, and suggested that simplified Miranda warnings be used.

Significant State and Federal funds have already been invested in equip- ment enabling law enforcement agencies statewide to record interro- gations, both of adults and of juveniles. Since 2007, State funds have been made available to assist prosecutors and law enforcement in commu- nities both large and small to expand their capacities to record inter- rogations. In a July, 2013 press release, 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. In a July, 2016 press release, characterizing video recording as "widely recognized as a best practice for enhancing the fairness and effectiveness of the criminal justice system," Governor Cuomo and Manhattan District Attorney Cyrus Vance, Jr., announced a $500,000 grant to expand the program, with preference accorded to agencies that had not received funds in 2013. Over one million dollars in State funds have thus been expended to date, result- ing in at least one law enforcement facility in every one of the State's 62 counties equipped to record interrogations.

The factors favoring video recording of interrogations of adults are even more present when such recording is utilized for 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 lack of full development of the pre-frontal cortex in adolescents, which governs judgment, decision-making and understanding of consequences, makes them more likely to give false confessions. These adolescent development factors were central to decisions of the United States Supreme Court in cases outlawing the juvenile death penalty, limiting life without parole and requiring age to be considered a factor in determining whether 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).

Significantly, the juvenile justice chapter of the comprehensive report, Reforming Criminal Justice, recently issued by the Academy for Justice, noted a consensus in favor of recording juvenile interrogations reached by "legal scholars, psychologists, law enforcement, and justice-system personnel," noting that it "reduces coercion, diminishes dangers of false confessions and increases reliability:"

Recording creates an objective record and provides an independent basis to resolve credibility disputes about Miranda warnings, waivers, or statements. It enables a judge to decide whether a statement contained facts known to a guilty perpetrator or whether police supplied them to an innocent suspect. Recording protects police from false claims of abuse, enhances professionalism and reduces coercion. It enables police to focus on suspects' responses, to review details of an interview not captured in written notes, and to test them against subsequently discov- ered facts. Recording avoids distortions that occur when interviewers rely on memory or notes to summarize a statement.

There is a national movement toward requiring video recording of inter- rogations of juveniles. By 2012, when the IACP report was issued, there were 16 States mandating recording by statute or case law, with many other states having legislation pending. Particularly noteworthy among these statutes are those in Illinois and North Carolina. 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 juveniles, but also to the justice system, of enhancing the requirements established in chapter 59 for video recording of interrogations of juveniles in New York are substantial. Requiring a transparent interrogation process will not only render false confessions and wrongful adjudications less likely but will provide an objective basis for 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 accura- cy of witnesses' testimony will be invaluable. It protects the juve- niles' statutory and constitutional rights, while at the same time protecting law enforcement by providing a reliable record of the circum- stances 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 resol- ution 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 prosecu- tors' agencies.

This measure would take effect November first in the year next succeed- ing the year of enactment.

Legislative history

OCA 2017-14. S4764 (2017-18); A.7690 (2017-18)