A BILL TO BE ENTITLED
AN ACT to provide that A custodial interrogation in a homicide case must be electronically recorded in its entirety.
The General Assembly of North Carolina enacts:
SECTION 1.  Chapter 15A of the General Statutes is amended by adding a new Article to read:
"Article 8.
"Electronic Recording of Interrogations.
"§ 15A‑211.  Electronic recording of interrogations.
(a)	Purpose. – The purpose of this Article is to require the creation of an electronic record of an entire custodial interrogation in order to eliminate disputes about interrogations, thereby improving prosecution of the guilty while affording protection to the innocent and increasing court efficiency.
(b)	Definitions. – The following definitions apply in this Article:
(1)	Custodial interrogation. – An interview that occurs in a place of detention during which a reasonable person in the subject's position would consider himself or herself in custody and that involves  questioning by law enforcement personnel that is reasonably likely to elicit incriminating responses.
(2)	Electronic recording. – An audio recording that is an authentic, accurate, unaltered record; or a visual recording that is an authentic, accurate, unaltered record.
(3)	Place of detention. – A jail, police or sheriff's station, correctional or detention facility, holding facility for prisoners, or other place where persons are held in connection with criminal charges.
(4)	In its entirety. – A record that begins with and includes a law enforcement officer's advice to the person in custody of that person's constitutional rights, ends when the interview has completely finished, and clearly shows both the interrogator and the person in custody throughout. If the record is a video recording, the camera recording the custodial interrogation must be placed so that the camera films both the interrogator and the suspect.
(c)	Electronic Recording of Interrogations Required. – During the prosecution of any homicide, an oral, written, nonverbal, or sign language statement of a defendant made in the course of a custodial interrogation may be presented as evidence against the defendant, as long as the statement is otherwise admissible, if an electronic recording was made of the custodial interrogation in its entirety. If the court finds that the defendant was subjected to a custodial interrogation that was not electronically recorded in its entirety, then any statements made by the defendant following that custodial interrogation, even if otherwise in compliance with this section may also be questionable with regard to the voluntariness and reliability of the statement. The State may establish through clear and convincing evidence that the statement was both voluntary and reliable, and that law enforcement officers had good cause for failing to electronically record the entire interrogation. Examples of good cause include all of the following:
(1)	The accused refused to have his or her interrogation electronically recorded, and the refusal itself was electronically recorded.
(2)	The failure to electronically record an entire interrogation was the result of unforeseeable equipment failure, and obtaining replacement equipment was not feasible.
(d)	Remedies for Noncompliance. – All of the following remedies shall be granted as relief for noncompliance with the requirements of this section:
(1)	Failure to comply with any of the requirements of this section shall be considered by the court in adjudicating motions to suppress a statement of the defendant made during or following a custodial interrogation.
(2)	Failure to comply with any of the requirements of this section shall be admissible in support of claims of the voluntariness and reliability of the defendant's statement, as long as such evidence is otherwise admissible.
(3)	When evidence of compliance or noncompliance with the requirements of this section has been presented at trial, the jury shall be instructed that it may consider credible evidence of compliance or noncompliance to determine the voluntariness and reliability of a defendant's statement.
(e)	Article Does Not Preclude Admission of Certain Statements. – Nothing in this Article precludes the admission of any of the following:
(1)	A statement made by the accused in open court at his or her trial, before a grand jury, or at a preliminary hearing.
(2)	A spontaneous statement that is not made in response to a question.
(3)	A statement made after questioning that is routinely asked during the processing of the arrest of the suspect.
(4)	A statement made during a custodial interrogation that is conducted out‑of‑state.
(5)	A statement obtained by a federal law enforcement officer in a federal place of detention.
(6)	A statement given at a time when the interrogators are unaware that the person is suspected of a homicide.
(7)	A statement, otherwise inadmissible under this Article of the General Statutes that is used only for impeachment and not as substantive evidence.
(f)	Destruction or Modification of Recording After Appeals Exhausted. – The State shall not destroy or alter any electronic recording made of a custodial interrogation of a defendant who is convicted of any offense relating to the interrogation until one year after the completion of all State and federal appeals regarding the conviction, including the exhaustion of any appeal of any motion for appropriate relief or habeas corpus proceedings. Every electronic recording should be clearly identified and catalogued by law enforcement personnel."
SECTION 2.  This act becomes effective July 1, 2008, and applies to interrogations occurring on or after that date.