Senate Bill S7082A

                                 BILL NUMBER:  S7082A

 TITLE OF BILL :

An act to amend the family court act, in relation to video recording
of interrogations of juveniles in juvenile delinquency proceedings in
family court

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of his Family
Court and Rules Advisory Committee.

With the increasing recognition of the value of video recording of
statements of the accused in enhancing the accuracy and reliability of
criminal proceedings and with the proliferation of inexpensive
recording technology, there has been a growing national consensus in
favor of recording interrogations. Coupled with the advancing
knowledge regarding the still-developing adolescent brain, the
consensus has been particularly strong with respect to interrogations
of youth. We, therefore, now propose a measure requiring video
recording of all interrogations of accused juvenile delinquents where
such interrogations take place in law enforcement facilities approved
for the questioning of youth.

This measure amends sections 305.2 and 344.2 of the Family Court Act
to require video recording of entire interrogations of juveniles,
              

including the provision of Miranda warnings and the waiver, if any, of
rights by the juveniles. The requirement 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. The recording must ensure that all participants are
identifiable, that the speech is intelligible and that it complies
with rules to be promulgated by the New York State Division of
Criminal Justice Services. As is applicable 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 the
factors comprising the totality of circumstances affecting the
admissibility of accused juveniles' statements.

The emerging consensus favoring recording of interrogations in
criminal proceedings has been particularly evident in all sectors of
the State's justice system. The New York State Justice Task Force,
established by former Chief Judge Jonathan Lippman and chaired by Hon.
Janet DiFiore, in January, 2012, issued "Recommendations Regarding
Electronic Recording of Custodial Interrogations" as one means of
ameliorating 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
recording 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 transparency 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
circumstances, the Task Force noted 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 Department, 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 Interrogations of Suspects, inter alia, at pps
6-7, noted that questioning of accused juvenile delinquents should be
recorded in court-approved juvenile questioning rooms upon compliance
with parental notification requirements and suggested that simplified
Miranda warnings be used. Since 2007, State funds have been made
available to assist prosecutors and law enforcement in communities
both large and small to expand their capacities to record
interrogations. See T. Sullivan, "Arguing for Statewide Uniformity in
Recording Custodial Interrogations," 29 Criminal Justice 21 (Spring,
2014); K. Hamann, "Outside Counsel: Police and District Attorneys
Endorse Video Recording of Interrogations," N.Y.L.J., Aug. 8, 2011.
In a press release, on July 15, 2013, 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.{1}

The factors favoring video recording of interrogations of adults are
magnified when applied to 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 the lack of
full development of the pre-frontal cortex in adolescents, which
governs judgment, decision-making and understanding of consequences,
makes them more vulnerable to making false confessions.{2} These
adolescent development factors were central to the decisions of the
United States Supreme Court in the cases outlawing the juvenile death
penalty, limiting life without parole and requiring age to be
considered a factor in determining whether a 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).

The movement toward requiring video recording of interrogations of
juveniles has been advancing nationally. By 2012, when the IACP report
was issued, there were 16 States that mandated recording by statute or
case law, in addition to the many states with legislation pending.
Particularly noteworthy among these statutes are those in Illinois and

North Carolina.{3} 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 the juveniles, but also to the justice
system, of enacting a mandate to record interrogations of juveniles in
New York are substantial. Requiring a transparent interrogation
process will not only assist in preventing false confessions and
wrongful adjudications but will provide an objective basis for the
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 accuracy of witnesses' testimony will be invaluable. It protects
the juveniles' statutory and constitutional rights, while at the same
time protecting law enforcement by providing a reliable record of the
circumstances 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 resolution 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 prosecutors' agencies.

This measure, which would have no fiscal impact on the State, would
take effect on the first of November in the year next succeeding the
year in which this act shall have become a law; and shall apply only
to confessions, admissions or other statements made on or after such
effective date; provided, further, that the Division of Criminal
Justice Services shall promulgate rules necessary to implement this
act in advance of its effective date.

 LEGISLATIVE HISTORY :

Senate 7082 (Senator Avella) (reported and committed to Finance)
Assembly 9770 (M. of A. Harris) (reported referred to Codes)

{1} Press release, "Governor Cuomo Announces One Million Dollars to
Help Law Enforcement Purchase Equipment to Video Record
Interrogations" (July 15, 2013). Also, the New York State District
Attorneys Association indicated that as of June, 2013, there were
already more than 380 video recording facilities in counties
throughout the State.  See Letter in support of S 4484-a/A 6800.,
dated June 21, 2013, from Cyrus Vance, then-President, New York State
District Attorneys Association.

{2} The report cited three studies: a study of 340 wrongful
convictions in which 42% of the juveniles falsely confessed, as
compared to 13% of the adults; a study of 125 proven false
confessions, in which 32% involved youth under 18; and a study of
juvenile wrongful convictions that found that youth "were almost twice
as likely as adults to falsely confess." IACP, supra, p. 6, notes 7-9
{citing S. Gross, et al, "Exonerations in the United States
1989-2003," 95 J. Of Crim. Law & Criminology 2:523-560 (2005); S.
Drizin and R. Leo, "The Problem of False Confessions in a post-DNA
World," 82 N.C.L.Rev. 891 (2004); J.  Tepler, L. Nirider and
L.Tricarico, "Arresting Development:  Convictions of Innocent Youth,"
62 Rutgers L.Rev. 4:887 (2010)}.

{3} West's Smith-Hurd Illinois Compiled Stats. Ann., ch. 705 §
5-5-401.5 (effective July 16, 2014); West's N.C. Stats. Ann. § 15A-211
(effective Dec, 1, 2011).