Recording of custodial interrogations.

WORKING DRAFT
2009
STATE OF
WYOMING
09LSO-0318

HOUSE BILL
NO.
HB0116

Recording of custodial interrogations.

Sponsored by:
Representative(s) Mercer, Bagby, Cohee, Gingery, Hallinan, Landon and Thompson and Senator(s) Dockstader and Hastert

A BILL

for

AN ACT relating to
criminal procedure; requiring electronic recording of custodial interrogations as specified;
establishing procedures for interrogations of suspects;
prohibiting the admission in court of statements that were not recorded as specified;
providing exceptions;
providing
definitions;
and providing for an effective date.

Be It Enacted by the Legislature of the State of
Wyoming
:

Section 1.

W.S. 7
‑
2
‑
109 is created to read:

7
‑
2
‑
10
9
.

Custodial interrogations, recording required; definitions.

(a)

As used in this section:

(i)

"Electronic recording"
means
the complete and authentic reproduction of the entire custodial interrogation of a criminal suspect, created by motion picture, videotape,
audiotape
or digital media;

(ii)

"Custodial interrogation" means the questioning by law enforcement personnel or others acting in concert with or on behalf of law enforcement personnel, which is conducted in a police station, police vehicle, courthouse, correctional facility, community correct
ion
al center, detention facility or other secure environment
or any place a person has been deprived of his freedom of action in any significant way
.

(b)

An oral, written or sign-language state
ment
of a
n

accused
made
during
a custodial interrogation shall be presumed inadmissible as evidence against the
accused
in
a criminal
proceeding unless:

(i)

The interrogation is
electronically
recorded in its entirety;

(ii)

Prior to the statement, but during the recording, the accused is given the requisite
advisement about his
constitutional
rights as an accused under law enforcement custody and the accused knowingly, intelligently and voluntarily waives any rights set out in the advisement;

(iii)

The recording device was capable of making an accurate recording, the operator was competent to operate the device and the recording was not altered;

(iv)

All voices on the recording that are material to the custodial interrogation are identified;

(v)

During discovery, but in no circumstances later than the twentieth day before the date of the proceeding in which the prosecution intends to offer the statement, the
accused
or the attorney representing the
accused
is provided a true, complete and accurate copy of all recordings of the
accused
made under this section.

(c)

The state may rebut a presumption of inadmissibility through clear and convincing evidence that:

(i)

The statement was both voluntary and reliable;

(ii)

The law enforcement officers had good cause not to tape the entire interrogation, which may include the
following
circumstances:

(A)

The interrogation took place at a location not identified in paragraph (a)(ii) of this section and under exigent circumstances where the requisite recording equipment was not readily available and there was no opportunity to move the accused to a location identified in paragraph (a)(ii) of this section or where the requisite recording equipment was readily available;

(B)

The accused
refused to have his interrogation electronically recorded and the refusal
itself
was electronically recorded;

(C)

The failure to electronically record an entire interrogation was the result of equipment failure and obtaining replacement equipment was not feasible; or

(D)

The statement was obtained in the course of electronic eavesdropping which was being conducted pursuant to a properly obtained and issued warrant.

(
d
)

Notwithstanding any other provision of this section, a written, oral or sign-language statement of the accused made as a result of a custodial interrogation is admissible against the accused in a criminal proceeding in this state if:

(i)

The statement was obtained in another state and was obtained by law enforcement personnel of that state, acting independently of law enforcement personnel from Wyoming, in
compliance
with the laws of that state; or

(ii)

The statement was obtained by a federal law enforcement officer in this state or another state during
a lawful federal criminal investigation and was obtained in compliance with federal law.

(e)

Every electronic recording made of a custodial interrogation shall be preserved until such time as the accused's conviction for
any offense
relating to the interrogation is final and all direct and
habeas
corpus appeals are exhausted, or the
prosecution
of such offenses is barred by law.

(f)

This section shall not preclude the admission of a statement by an accused:

(i)

At his trial or other hearing in open court;

(ii)

Before a grand jury;

(iii)

That is
a spontaneous declaration by the accused at the time
of the arrest or the offense; or

(iv)

That does not stem from custodial interrogation.

Section
2.

This act is effective July 1, 2009.

(END)

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HB0116