HB 636-FN – AS INTRODUCED
2005 SESSION
09/01
HOUSE BILL 636-FN
AN ACT requiring the electronic recording of statements by persons subject to custodial interrogation.
SPONSORS: Rep. T. Robertson, Ches 3
COMMITTEE: Criminal Justice and Public Safety
This bill requires the electronic recording of statements by persons subject to custodial interrogation.
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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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
05-0671
09/01
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Five
AN ACT requiring the electronic recording of statements by persons subject to custodial interrogation.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Section; Arrests in Criminal Cases; Electronic Recording of Statements. Amend RSA 594 by inserting after section 15 the following new section:
594:15-a Mandatory Electronic Recording of Statements By Those Subject to Custodial Interrogation.
I. No statement made by an arrested person during custodial interrogation shall be admissible in evidence against the arrested person in a criminal proceeding unless:
(a) A complete and authentic electronic recording, which may include motion picture, video tape, or other visual recording, or an audio tape recording, is made of the statement and the interrogation in its entirety;
(b) Prior to the statement but during the recording the person is informed of the right to remain silent and the right to counsel as set forth in warnings commonly known as Miranda warnings, and the accused knowingly, intelligently, and voluntarily waives all rights set out in the warning;
(c) The recording device was capable of making an accurate recording, the operator was competent, and the recording is accurate and has not been altered;
(d) All voices on the recording that are material to the custodial interrogation are identified; and
(e) Not later than the 30th day after arraignment or on such other date as set by the court, the defendant or the defendant’s attorney is provided with a true, complete, and accurate copy of all recordings of the defendant made under this section.
II. For the purpose of this section, the phrase, “statement made by an arrested person as a result of custodial interrogation” shall be broadly construed in order to effectuate this section’s legislative purpose which is to enhance the quality of the prosecution of those who may be guilty while affording protection to the innocent. It is intended to create a verbatim record of the entire custodial interrogation for the purpose of eliminating disputes in court as to what factually occurred during the interrogation.
III. Nothing in this section precludes the admission of a statement made by the defendant in open court at his or her trial or other hearing in open court, or of a statement that is the res gestae of the arrest or of the offense, or of a statement that does not stem from custodial interrogation.
IV. Notwithstanding the provisions of paragraph I, a written, oral, or sign language statement of an arrested person made as a result of a custodial interrogation is admissible against the accused in a criminal proceeding in this state if:
(a) The statement was obtained in another state and was obtained in compliance with the laws of that state or this state;
(b) The statement was obtained by a federal law enforcement officer in this state or another state and was obtained in compliance with the laws of the United States; or
(c) The custodial interrogation took place somewhere other than a police station or office of a law enforcement agency and the requisite recording equipment was not reasonably available at that location.
V. Nothing in this section shall be construed to prevent the arrested person from making a knowing, intelligent, and voluntary waiver of his or her right to have the custodial interrogation electronically recorded.
VI. In the event that an unrecorded custodial statement of an arrested person is offered as evidence against that person at trial, the state shall be required to prove, by a preponderance of the evidence, that the arrested person made a knowing, voluntary, and intelligent waiver of the right to have the custodial interrogation recorded or that the unrecorded custodial statement falls within an exception set forth in paragraph IV and was not the result of an effort to avoid the requirements of this section.
2 Effective Date. This act shall take effect January 1, 2006.
LBAO
05-0671
2/1/05
HB 636-FN - FISCAL NOTE
AN ACT requiring the electronic recording of statements by persons subject to custodial interrogation.
FISCAL IMPACT:
Due to time constraints, the Office of Legislative Budget Assistant is unable to provide a fiscal note for this bill at this time. When completed, the fiscal note will be forwarded to the House Clerk's Office.