Senate Bill S4764A

                                
 
BILL NUMBER: S4764A

SPONSOR: AVELLA
 
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 fami-
ly 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 increasing recognition of the value of video recording the state-
ments of an accused in enhancing the accuracy and reliability of crimi-
nal proceedings, and with proliferation of inexpensive recording tech-
nology, there has been a growing national consensus in favor of
recording interrogations. Coupled with advancing knowledge regarding the
still-developing adolescent brain, the consensus has been particularly
strong for interrogations of youth. We, therefore, propose this measure
to require 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 to them and any waiver of their
rights. The requirement would apply to interrogations that take place in
law enforcement facilities which, pursuant to section 305.2(4) of the
Family Court Act 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 Administrative Judge for the questioning of youth. The recording
must ensure that all participants are identifiable, that it is intelli-
gible and that it complies with rules to be promulgated by the Division
of Criminal Justice Services (DCJS). As is applicable to other state-
ments by juveniles, the recording would be subject to discovery pursuant
to section 331.2 of the Family Court Act. 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. As provided in chapter 59, the failure to
record would not, by itself, be a ground for granting a suppression
motion.

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 record-
ing 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 transpar-
ency 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 circum-
stances, the Task Force noted the voluntary guidelines adopted in Decem-
ber, 2010, by the NYS District Attorneys Association that were developed
in conjunction with the NYC Police Department, the NYS Police, the NYS
Chiefs of Police Association, and the NYS 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 question-
ing 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.

Significant State and federal funds have already been invested in equip-
ment to enable law enforcement agencies statewide to record interro-
gations, both of adults and juveniles. 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 interro-
gations. 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 July, 2013
press release, 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} In a July, 2016 press release, characterizing video
recording as "widely recognized as a best practice for enhancing the
fairness and effectiveness of the criminal justice system," Governor
Cuomo and Manhattan District Attorney Cyrus Vance, Jr., announced a
$500,000 grant to expand the program, with preference accorded to agen-
cies that had not received funds in 2013.{2} More than one million
dollars in State funds have thus been expended to date, resulting in at
least one law enforcement facility in every one of the State's 62 coun-
ties equipped to record interrogations.{3}

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 - the part of the
brain governing judgment, decision-making and understanding of conse-
quences - makes adolescents more vulnerable to giving false
confessions.' 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 that
age be considered when determining whether a school-based police inter-
rogation 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 juve-
niles has been advancing nationally. By 2012, when the IACP report was
issued, 16 States 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.{5} Addi-
tionally, 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 enhancing the requirements established in chapter 59 for video
recording of 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 Family Court to evaluate the validity of a juve-
nile's waiver of rights as well as the substance of his or her state-
ments. 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 a court can deter-
mine the accuracy of witnesses' testimony will be invaluable. It will
protect 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 compliance with statu-
tory requirements and protocols. Further, it is likely to reduce the
number of contested suppression hearings, thus facilitating expeditious
resolution and timely adjudication of 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 prosecu-
tors' 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 effec-
tive date; provided, further, that the DCJS shall promulgate rules
necessary to implement this act in advance of its effective date.

 
2017-18 LEGISLATIVE HISTORY:

Senate 4764 (Sen. Avella) (referred to Children and Families)

Assembly 7690 (M. of A. Harris) (ordered to 3rd Rdg., Cal. 541)

 
2016 LEGISLATIVE HISTORY:

Senate 7082-A (Sen. Avella) (recommitted to Rules)
Assembly 9770-A (M.  of A. Harris) (ordered to 3rd Reading, Cal. 356)


{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} Press release, "Governor Cuomo, Manhattan DA Vance Announce $500,000
for Law Enforcement to Purchase Equipment to Video Record Interro-
gations," (July 6, 2016). See also, "Editorial: Interrogation Tapings
are About Fairness," Schenectady Daily Gazette, July 11, 2016; "Police
Get Funds to Record Suspect Interviews," Journal News, Oct. 25, 2016;
"Police Get $250G to Record Interrogations," Newsday, Oct. 25, 2016
(Nassau County).

{3} Id.

{4} 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, "Exon-
erations in the United States 1989-2003," 95 J. Of Crim. Law & Criminol-
ogy 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)).

{5} 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).