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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) All or part of a custodial interrogation to which paragraph I of this section 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.
IV. 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 in need of audio and/or audiovisual equipment or additional support 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 that has neither audio nor audiovisual recording equipment shall have first priority.
(2) A law enforcement agency that has audio recording equipment but not audiovisual recording equipment shall have second priority.
(3) A law enforcement agency that has audiovisual recording equipment but insufficient storage capability for recorded files shall have third priority.
(c) A law enforcement agency that has both audio and audiovisual recording equipment and adequate storage capability for the recordings 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 (399) the following new subparagraph:
(400) 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 biennium ending June 30, 2027 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 9 months after its passage.
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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) All or part of a custodial interrogation to which paragraph I of this section 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.
IV. 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 in need of audio and/or audiovisual equipment or additional support 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 that has neither audio nor audiovisual recording equipment shall have first priority.
(2) A law enforcement agency that has audio recording equipment but not audiovisual recording equipment shall have second priority.
(3) A law enforcement agency that has audiovisual recording equipment but insufficient storage capability for recorded files shall have third priority.
(c) A law enforcement agency that has both audio and audiovisual recording equipment and adequate storage capability for the recordings 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 (399) the following new subparagraph:
(400) 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 biennium ending June 30, 2027 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 9 months after its passage.