SB 80-FN-A - AS INTRODUCED

 

 

2023 SESSION

23-0981

04/05

 

SENATE BILL 80-FN-A

 

AN ACT requiring the recording of custodial interrogations and making an appropriation therefor.

 

SPONSORS: Sen. Abbas, Dist 22; Rep. Roy, Rock. 31; Rep. Rhodes, Ches. 17; Rep. Lynn, Rock. 17

 

COMMITTEE: Judiciary

 

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ANALYSIS

 

This bill requires that custodial interrogations be recorded, establishes a fund to make grants to state law enforcement agencies to purchase equipment to enable such recordings, and makes an appropriation therefor.

 

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

23-0981

04/05

 

STATE OF NEW HAMPSHIRE

 

In the Year of Our Lord Two Thousand Twenty Three

 

AN ACT requiring the recording of custodial interrogations and making an appropriation therefor.

 

Be it Enacted by the Senate and House of Representatives in General Court convened:

 

1  Short Title.  This act may be known and cited as the uniform electronic recordation of custodial interrogations act.

2  New Chapter; Recording of Custodial Interrogations.  Amend RSA by inserting after chapter 594 the following new chapter:

CHAPTER 594-A

RECORDING OF CUSTODIAL INTERROGATIONS

594-A:1  Definitions.  In this chapter:  

I.  "Custodial interrogation" shall have the same meaning as established in case law by the New Hampshire supreme court.

II.  "Electronic recording" means an audio recording or audio and video recording that accurately records a custodial interrogation.  "Record electronically" and "recorded electronically" shall have the same meaning.

III.  “Law enforcement agency” means any entity or part of an entity that employs a law enforcement officer.

IV.  “Law enforcement officer” means any officer of the state or political subdivision of the state who is empowered by law to conduct investigations of or to make arrests for offenses enumerated in this chapter.

V.  "Person" means an individual, corporation, business trust, statutory trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, or government; political subdivision, agency, or instrumentality; or any other legal or commercial entity.

VI.  "Place of detention" means a fixed location under the control of a law enforcement agency where individuals are questioned about alleged crimes or status offenses.  The term includes a jail, police or sheriff's station, holding cell, or correctional or detention facility.

VII.  "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.

VIII.  "Statement" means a communication whether oral, written, or electronic.

594-A:2  Electronic Recording Equipment.  

I.  Except as otherwise provided in RSA 594-A:4, a custodial interrogation at a place of detention, including the giving of any required warning, advice regarding the rights of the individual being questioned, and the waiver of any rights by the individual, shall be recorded electronically in its entirety.  A custodial interrogation at a jail, police or sheriff's station, holding cell, or correctional or detention facility shall be also recorded.  A custodial interrogation at any other place of detention shall be recorded by audio means at minimum.

II.  This section shall not apply to an administrative disciplinary hearing in a state correctional facility or to a parole violator not charged with a new offense.

594-A:3  Exceptions.

I.  If a custodial interrogation occurs in another state in compliance with that state's law or is conducted by a federal law enforcement agency in compliance with federal law, the interrogation shall not be recorded electronically unless the interrogation is conducted with intent to avoid the requirement of electronic recording in RSA 594-A:2.

II.  If an individual to be interrogated requests that the interrogation not be recorded, or if the individual being interrogated indicates that the individual will not participate in further interrogation unless electronic recording ceases, the interrogation shall not be recorded electronically provided that this request is preserved by electronic recording or in a written document that is signed by the individual.  A law enforcement officer with intent to avoid the requirement of electronic recording in RSA 594-A:2 shall not encourage an individual to request that a recording not be made.

III.  A custodial interrogation to which paragraph I of this chapter otherwise applies shall not be recorded electronically if a law enforcement officer conducting the interrogation or the officer's superior reasonably believes that electronic recording would disclose the identity of a confidential informant or jeopardize the safety of an officer, the individual being interrogated, or another individual.  If feasible and consistent with the safety of a confidential informant, an explanation of the basis for the belief that electronic recording would disclose the informant's identity shall be recorded electronically at the time of the interrogation.  If contemporaneous recording of the basis for the belief is not feasible, the recording shall be made as soon as practicable after the interrogation is completed.

IV.(a)  All or part of a custodial interrogation to which paragraph I of this chapter otherwise applies shall not be recorded electronically to the extent that recording is not feasible because the available electronic recording equipment fails, despite reasonable maintenance of the equipment, and timely repair or replacement is not feasible.

(b)  If both audio and video recording of a custodial interrogation are otherwise required by paragraph I of this section, recording may be by audio alone if a technical problem in the video recording equipment prevents video recording, despite reasonable maintenance of the equipment, and timely repair or replacement is not feasible.

(c)  If both audio and or video recording of a custodial interrogation are otherwise required by paragraph I of this section, recording may be by video alone if a technical problem in the audio recording equipment prevents audio recording, despite reasonable maintenance of the equipment, and timely repair or replacement is not feasible.

(d)  If an electronic recording is not feasible under subparagraphs (a)-(c) of this section, the police shall document in writing the reasons for the failure of the recording equipment as soon as feasible.  Such documentation shall include the most recent maintenance actions relating to the electronic equipment.

V.  Paragraph I of this section shall not apply to a spontaneous statement made outside the course of a custodial interrogation or a statement made in response to a question asked routinely during the processing of the arrest of an individual.

594-A:4  Presumption of Inadmissibility.  Except as provided in RSA 594-A:3 and RSA 594-A:5, all statements made by a person during a custodial interrogation that are not electronically recorded shall be inadmissible as evidence against the person in any criminal or juvenile delinquency proceeding brought against the person.

594-A:5  Overcoming the Presumption of Inadmissibility.  The presumption of inadmissibility of statements provided in 594-A:4 may be overcome, and statements that were not electronically recorded may be admitted into evidence in a criminal or juvenile delinquency proceeding brought against the person, if the court finds:

I.  That the statements are otherwise admissible under applicable rules of evidence; and

II.  That law enforcement personnel provide a reasonable justification, including a summary and documentation of the surrounding facts and circumstances, explaining the lack of recording.  

594-A:6  Electronic Equipment Acquisition Fund; Allocation.

I.  There is hereby established in the state treasury a nonlapsing fund to be known as the electronic equipment acquisition fund (EEAF) which shall be administered by the department of safety.  The department shall credit all state appropriations and all federal moneys to the fund for the purposes of this chapter.

II.  Grant moneys from the EEAF shall be available to a state law enforcement agency which does not already have audio and/or audio/video equipment to comply with the requirements of this chapter to acquire such equipment.  The department of safety shall:

(a)  Notify all state law enforcement agencies of the availability of such funds within 60 days of the effective date of this chapter and impose a deadline of 60 days after that date for the filing of an application for said funds.

(b)  Prioritize the allocation of any funds as follows:

(1)  A law enforcement agency which has neither audio nor audio/visual recording equipment shall have first priority.

(2)  A law enforcement agency which has audio recording equipment but not audio/visual recording equipment shall have second priority.

(c)  A law enforcement agency which has both audio and audio/visual recording equipment as of the effective date of this chapter shall not be eligible for funds under this chapter.

(d)  The commissioner of the department of safety shall adopt rules, pursuant to RSA 541-A, relative to application procedures, forms, deadlines, notification, and disbursement of funds to grant applicants.  

3  New Subparagraph; Application of Receipts; Electronic Equipment Acquisition Fund.  Amend RSA 6:12, I(b) by inserting after subparagraph (387) the following new subparagraph:

(388)  Moneys credited to the electronic equipment acquisition fund established in RSA 594-A:6.

4  Electronic Equipment Acquisition Fund; Appropriation.  There is hereby appropriated $50,000 for the fiscal year ending June 30, 2024 to the department of safety which shall be credited to the electronic equipment acquisition fund established in RSA 594-A:6.  The governor is authorized to draw a warrant for said sum out of any money in the treasury not otherwise appropriated.

5  Effective Date.  This act shall take effect 60 days after its passage.

 

LBA

23-0981

Revised 2/6/23

 

SB 80-FN-A- FISCAL NOTE

AS INTRODUCED

 

AN ACT requiring the recording of custodial interrogations and making an appropriation therefor.

 

FISCAL IMPACT:      [ X ] State              [ X ] County               [ X ] Local              [    ] None

 

 

 

Estimated Increase / (Decrease)

STATE:

FY 2023

FY 2024

FY 2025

FY 2026

   Appropriation

$0

$50,000

$0

$0

   Revenue

$0

Indeterminable

Indeterminable

Indeterminable

   Expenditures

$0

Indeterminable

Indeterminable

Indeterminable

Funding Source:

  [ X ] General            [    ] Education            [ X ] Highway           [ X ] Other - Electronic Equipment Acquisition Fund

 

 

 

 

 

COUNTY:

 

 

 

 

   Revenue

$0

Indeterminable

Indeterminable

Indeterminable

   Expenditures

$0

Indeterminable

Indeterminable

Indeterminable

 

 

 

 

 

LOCAL:

 

 

 

 

   Revenue

$0

Indeterminable Increase

Indeterminable Increase

Indeterminable Increase

   Expenditures

$0

Indeterminable Increase

Indeterminable Increase

Indeterminable Increase

 

METHODOLOGY:

This bill requires that custodial interrogations be recorded, establishes a fund to make grants to

state law enforcement agencies to purchase equipment to enable such recordings, and makes an

appropriation therefor.

 

The Department of Safety estimates it will need either a part-time Program Specialist I position (LG 19), or additional overtime funds for existing staff in order cover the administrative costs associated with awarding the grants.  The Department has no way to determine how much revenue will be generated for the Electronic Equipment Allocation Fund and cannot project the expenditures that will be made from the fund.  The Department does have information on the cost of the part-time position working approximately 25 hours per week.  The cost of salary and benefits for the part-time Program Specialist position would be $33,000 in FY 2024, $35,000 in FY 2025 and $36,000 in FY 2026.

 

The New Hampshire Municipal Association indicates municipal police departments will need to purchase additional equipment in order to comply with the requirements of this bill.  Each department will purchase equipment based on its individual need. Departments already utilizing existing systems, such as body camera equipment and software, will likely purchase additional equipment as necessary to comply with the statute.  It is not possible to estimate the need for additional hardware at this time.  In addition to hardware, police departments would be required to retain evidentiary recordings generated under existing court rules, and, depending on the type  and format of the recording, departments will likely need to purchase additional storage capacity.  At this time, it is not possible to estimate the need for additional storage capacity, including software subscriptions at this time.  The Association states it is unclear whether the $50,000 appropriation in the bill for grant funding will be sufficient to fund the requirements of the legislation.

 

The New Hampshire Association of Counties indicates this bill would increase county expenditures for the purchase and maintenance of recording equipment for county facilities. Each county would likely need multiple devices to ensure availability at all locations, but the Association is not able to calculate how many devices each county would require.

 

It is assumed that any fiscal impact would occur after FY 2023.

 

AGENCIES CONTACTED:

Department of Safety, New Hampshire Municipal Association and New Hampshire Association of Counties