August 26, 2019

HB 16-1117: Requiring Recording of Certain Custodial Interrogations

On January 20, 2016, Reps. Daniel Kagan & Lori Saine and Sens. Irene Aguilar and John Cooke introduced HB 16-1117Concerning a Requirement That Custodial Interrogations Related to Investigations for Certain Serious Felonies Be Electronically Recorded. The bill was assigned to the House Judiciary Committee. It passed through that committee, amenb

This bill, if adopted, would require all law enforcement agencies to have audio-visual recording equipment available as well as policies and procedures in place for preserving custodial interrogations by January 1, 2017. Additionally, a peace officer must record the custodial interrogations occurring in a permanent detention facility if the peace officer’s investigation relates to a class 1 or 2 felony or a felony sexual assault.

The proposed bill would not require a peace officer to record the interrogation if:

  • The defendant requests that the interrogation not be recorded and the defendant’s request is preserved by electronic recording or in writing;
  • The recording equipment fails;
  • The recording equipment is unavailable, either because of extraordinary circumstances or because the equipment is damaged;
  • Exigent circumstances related to public safety prevent recording; or
  • The interrogation takes place outside the State of Colorado.

Furthermore, the bill proposes that a court may admit evidence from a custodial interrogation that has not been recorded. If the prosecution, when offering evidence from an unrecorded interrogation, can show by a preponderance of the evidence that one of the exceptions apply or that the evidence is offered as rebuttal or impeachment evidence, the court may admit the evidence without a cautionary instruction. If the prosecution does not meet that burden, however, the court shall issue a cautionary instruction to the jury after admitting the evidence.

Mark Proust is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

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