BILL NUMBER: S6533

SPONSOR: MONTGOMERY
 
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 Advisory and Rules Committee.

Enactment of a requirement for video recording interrogations of
suspects in certain cases, both adult and juvenile, as part of the FY
2017-2018 budget was a major step forward, consistent with recommenda-
tions of the Unified Court System's Justice Task Force and reflective of
the increasing national recognition of the value of video recording an
accused's statements in enhancing the accuracy of criminal proceedings.
With proliferation of inexpensive recording technology, 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 with respect to inter-
rogations of youth. However, because of restrictions in the enumerated
crimes requiring recording and numerous exceptions to the recording
              

mandate even in cases where it is applied, the new statute has almost no
applicability to suspects who need it most, i.e., those accused of juve-
nile delinquency whose cases are prosecuted in Family Court. The new law
only applies to Class A-1 felonies (not including controlled substances
offenses), predatory sex offenses (Penal Law §§ 130.95 and 130.96) and
Class B violent felony homicide and sex offenses  
PENAL LAW ARTICLES 125
AND 130 DEFINED IN PENAL LAW § 70.02 - rare crimes by juveniles, almost
all of which are prosecuted in adult criminal courts as juvenile
offenses. See Penal Law § 10.00(18); CPL § 1.20(42). Accordingly, we
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 the entirety of interrogations in all juve-
nile cases, including the provision of Miranda warnings and the waiver,
if any, of rights by the juveniles. As in chapter 59 of the Laws of
2017, the measure requires that recording procedures be consistent with
regulations to be promulgated by the Division of Criminal Justice
Services. The measure 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. All persons in the recording
must be identifiable and the speech must be intelligible. As is applica-
ble 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
factors comprising the totality of circumstances affecting admissibility
of accused juveniles' statements. As provided in chapter 59, failure to
record would not, by itself, be a ground for granting a suppression
motion.


The widespread recognition of the value of recording interrogations
reflects its advantages in enhancing the accuracy of the criminal proc-
ess, advantages that may be even more compelling in juvenile cases. Our
Justice Task Force, in January, 2012, issued "Recommendations Regarding
Electronic Recording of Custodial Interrogations" as one means of amel-
iorating 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 acknowledged 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 Depart-
ment, 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 Interro-
gations of Suspects, inter alia, at pps 6-7, noted that questioning of
accused juvenile delinquents should be recorded in court-approved juve-
nile 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 enabling law enforcement agencies statewide to record interro-
gations, both of adults and of juveniles. Since 2007, State funds have
been made available to assist prosecutors and law enforcement in commu-
nities both large and small to expand their capacities to record inter-
rogations. 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. 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 agencies that had not received funds in 2013.  Over one
million dollars in State funds have thus been expended to date, result-
ing in at least one law enforcement facility in every one of the State's
62 counties equipped to record interrogations.

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

Significantly, the juvenile justice chapter of the comprehensive report,
Reforming Criminal Justice, recently issued by the Academy for Justice,
noted a consensus in favor of recording juvenile interrogations reached
by "legal scholars, psychologists, law enforcement, and justice-system
personnel," noting that it "reduces coercion, diminishes dangers of
false confessions and increases reliability:"

Recording creates an objective record and provides an independent basis
to resolve credibility disputes about Miranda warnings, waivers, or
statements. It enables a judge to decide whether a statement contained
facts known to a guilty perpetrator or whether police supplied them to
an innocent suspect. Recording protects police from false claims of
abuse, enhances professionalism and reduces coercion. It enables police
to focus on suspects' responses, to review details of an interview not
captured in written notes, and to test them against subsequently discov-
ered facts. Recording avoids distortions that occur when interviewers
rely on memory or notes to summarize a statement.

There is a national movement toward requiring video recording of inter-
rogations of juveniles. By 2012, when the IACP report was issued, there
were 16 States mandating recording by statute or case law, with many
other states having legislation pending. Particularly noteworthy among
these statutes are those in Illinois and North Carolina. 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 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 render false confessions
and wrongful adjudications less likely but will provide an objective
basis for 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 accura-
cy of witnesses' testimony will be invaluable. It protects the juve-
niles' statutory and constitutional rights, while at the same time
protecting law enforcement by providing a reliable record of the circum-
stances 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 resol-
ution 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 prosecu-
tors' agencies.

This measure would take effect November first in the year next succeed-
ing the year of enactment.

 
LEGISLATIVE HISTORY:

OCA 2017-14. S4764 (2017-18); A.7690 (2017-18)