AN ACT TO AMEND TITLE 11 OF THE DELAWARE CODE RELATING TO ELECTRONIC RECORDATION OF CUSTODIAL INTERROGATIONS.

Confessions are powerful evidence of guilt. This Act adopts the Uniform Law Commission's Uniform Electronic Recordation of Custodial Interrogations Act to promote truth-finding, promote efficiency, and protect constitutional values. The scope of recording required under the Uniform Act, and the exceptions to the recording requirement, are consistent with the requirements set by the Attorney General in the Attorney General’s Custodial Interrogation Model Policy, available at: https://attorneygeneral.delaware.gov/law-enforcement/custodial-interrogation-policy-2018/. Specifically, this Act mandates audio recording or audio and video recording of the custodial interrogation process by law enforcement when the interrogation relates to a crime, as crime is defined under the Delaware Criminal Code. Recognizing that a blanket requirement of recording electronically all interrogation is not feasible, this Act provides 6 exceptions to the recording mandate: (1) exigent circumstances, (2) an individual's refusal to be recorded, (3) interrogations occurring in other jurisdictions, (4) when the interrogator reasonably believes that the offense involved is not one the Act mandates must be recorded, (5) when the interrogator or interrogator's supervisor reasonably believes electronic recording would reveal a confidential informant's identity or jeopardize the safety of the officer, the person interrogated, or another individual, and (6) equipment malfunctions. Further, this Act requires the prosecution to notify the defense of an intention to introduce an unrecorded statement and of the exception that permitted the lack of recording. This Act requires the prosecution to prove by a preponderance of the evidence that an exception applies. This Act also prescribes remedies for violations of the electronic recording requirement, including the giving of a cautionary instruction to the jury. Finally, this Act requires the Attorney General to adopt rules to implement this Act, which are to be enforced by each law enforcement agency.