Pappalardo Law Explains the New York Law Requiring Videotaping of Interrogations

By Jill K. Sanders, Esq.

As of April 1, 2018, law enforcement in New York must now electronically record custodial interrogations with individuals accused of serious crimes. The law was passed with its purpose being to eliminate disputes in court as to what actually occurred during the interrogation, thereby improving prosecution of the guilty while affording protection to the innocent. New York State has ensured that all 62 counties have at least one agency capable of video recording interrogations.

What Is a “Custodial Interrogation”?

A “custodial interrogation” is a legal term which, in some cases, can be disputed by defense attorneys and prosecutors. When a person is subject to custodial interrogation, he or she is entitled to be advised of his or her rights pursuant to Miranda v. Arizona.

A custodial interrogation is when questioning is initiated by investigators after the person is either taken into custody, arrested, or otherwise deprived of his or her ability to leave the scene freely. If a reasonable person would have felt he or she was not at liberty to stop the questioning and leave, this would be a custodial interrogation.

What Must Be Recorded?

Law enforcement investigators are required to video record interrogations of individuals accused of most serious non-drug felonies, including homicides and violent felony sex offenses. The requirement applies only to custodial interrogations at a police stations, correctional facilities, holding facilities for prisoners, prosecutor’s offices, or other facilities where persons are held in detention in connection with criminal charges.

Failure to record interrogations in applicable cases could result in a court determining that a confession is inadmissible as evidence, according to the new law, unless good cause is shown why the statement was not recorded.

Will Recording Statements Make a Difference?

Recording statements will go far in ensuring that statements are properly obtained. Such recordings will be vital in prosecutions of those who confess to crimes, and may also help to prevent unjustified prosecutions or wrongful convictions.

There are still some flaws in the plan, however. The new law does not apply to those accused of drug crimes, many violent felonies and all non-violent felonies, or misdemeanors. The law applies only to class A-1 felonies (except drug offenses), predatory sexual assault, or other homicide and sex offenses which are B violent felonies.

There are also several ways for a confession to still be admissible even when it was not electronically recorded. These exceptions include when the electronic recording equipment is unavailable because it is otherwise being used, if the statement is made to an investigator who is unaware that a qualifying offense has occurred, if the person making the statement is in the hospital or questioned outside of New York, or if “such statement is not recorded as a result of an inadvertent error or oversight, not the result of any intentional conduct by law enforcement personnel.” Many of these exceptions rely on the good faith of law enforcement personnel.

Several other steps could be taken to improve the reliability of statements made during interrogations, but none of these steps are required by law. These steps include recording when Miranda warnings are given, using an age-appropriate setting for the questioning of juveniles, using a date and time stamp on the recording, and identifying the parties present at the time of the questioning. Making these additional steps mandatory would only enhance the reliability of these statements.

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