1 Del. Admin. Code § 801-27.0

Current through Reigster Vol. 28, No. 6, December 1, 2024

Section 801-27.0 - Electronic Recording of Custodial Interrogations

27.1 All Police Officers, as defined in 11 Del.C. § 8401(6), a sworn member of a police force or other law-enforcement agency of this State or of any county or municipality who is responsible for the prevention and the detection of crime and the enforcement of laws of this State or other governmental units within the State, certified by the Delaware Council on Police Training, shall be required to follow the prescribed regulations on the electronic recording of custodial interrogations.

27.2 It is the purpose of this subsection to establish guidelines and procedures for recording specific custodial interrogations and confessions in order to provide an evidentiary record of statements made of persons suspected of committing crimes. These recordings will help to protect both the rights of suspects and officers against accusations of coercion or other interrogation-related misconduct and will also assist in the likelihood of successful prosecution.

27.3 The following are defined for purposes of this subsection:

"Custodial interrogation" means questioning or other conduct by a law enforcement officer which is reasonably likely to elicit an incriminating response from an individual and occurs when reasonable individuals in the same circumstances would consider themselves in custody.

"Electronic recording" means an audio recording or an audio and video recording that accurately records a custodial interrogation.

"Place of detention" means a fixed location under the control of a law enforcement agency where individuals are questioned about alleged crimes or delinquent acts. Place of detention includes jails, police stations, holding cells, correctional or detention facilities, police vehicles, and schools (in cases where minor students are questioned).

"Statement" means communication whether oral, written, electronic, or nonverbal.

27.4 Recording Requirements

27.4.1 Officers shall electronically record custodial interrogations if the interrogation relates to a crime or delinquent act, is conducted in a place of detention, including the giving of any required warning, advice of the rights of the individual being questioned, and the waiver of any rights by the individual, in its entirety.

27.4.2 A custodial interrogation must be recorded if the custodial detention occurs at a jail, police station, or holding cell by audio and video means. If the custodial detention occurs in a police vehicle, at a school for a child, in a correctional or detention facility, or at any other place of detention by audio means or by the use of a body worn camera at a minimum.

27.4.3 If electronic recording cannot be conducted due to equipment failure, lack of suspect cooperation, or for other reasons deemed pertinent to the successful interrogation by the investigating officer, the basis for such occurrences shall be documented in writing. This includes but is not limited to spontaneous declarations or other statements not elicited by police questioning.

27.4.4 Officers shall prepare a written or electronic report as soon as practicable after completing the custodial interrogation that summarizes the process.

27.5 Recording Protocol

27.5.1 Recording may be overt or covert, as covert recording constitutes one-party consent monitoring which is permitted by Delaware state law.

27.5.2 Electronic recording should begin as soon as a subject enters the interrogation room or area and continue until the interrogation is completed. Officers shall not record private attorney-client or parent-juvenile conversations.

27.5.3 Electronic recording must be conducted through video means at a jail, police station, or holding cell, and when feasible that video recording must allow a viewer to see both the individual being interrogated and the individuals conducting the interrogation.

27.5.4 Each recording shall include the following:

27.5.4.1 Declaration of the time the recording began.

27.5.4.2 Declaration of the start of the interrogation.

27.5.4.3 Administration of Miranda warning, even if the recording is a follow up to a prior interrogation or the suspect has been previously Mirandized.

27.5.4.4 Notation of the time the interrogation ends.

27.5.5 Any lapse in the recording for comfort breaks or other reasons shall be accounted for on the recording. During a short recess the recording may continue without interruption.

27.6 Chain of Custody

27.6.1 Recordings of interrogations are considered evidence and shall be handled as such and in accordance with each law enforcement agency's departmental policies. In addition, the following shall apply:

27.6.1.1 The original recording media shall be protected from re-recording.

27.6.1.2 The recording shall be specifically marked and identified with its specific case number and information and shall be labeled as an original or a copy.

27.6.1.3 The officer's official report shall note how the interrogation was conducted.

27.6.2 Recordings shall be retained by the department in secure storage for a period as defined by state law, departmental policy or the office of the Attorney General of the State of Delaware. Guidelines for Body Worn Camera recordings are defined in Section 26.0.

27.7 Supervisory Responsibilities and Review of Electronic Recordings

27.7.1 Supervisors will follow their departmental polices to ensure that officers abide by these regulations.

27.7.2 Supervisors will review crime reports and recordings associated with interrogations through a random audit, or anytime information is presented that questions the content of a recording.

27.8 Training and Education. Training relative to these regulations and the recording of custodial interrogations shall be included in the interview and interrogation course curriculums at each of the approved Delaware police academies.

27.9 No Third-Party Rights and Penalties for Non-Compliance

27.9.1 Nothing in these regulations shall create a private right of action in any third party. These regulations set mandatory standards for implementation and enforcement of 11 Del.C. Ch. 20.

27.9.2 Officers who violate these regulations are subject to disciplinary action outlined by each departmental disciplinary policies and procedures, and may be subject to review by the COPT.

27.10 Exceptions (As set forth in greater detail in 11 Del.C. §§ 2005- 2009)

27.10.1 Exigent Circumstances. If the recording is not feasible because of exigent circumstances, then the recording need not take place. The officer conducting the interrogation shall record electronically, which may be through an electronic report, an explanation of the exigent circumstances.

27.10.2 Refusal by interviewee. If the interviewee is informed that the interrogation will be recorded and indicates that he or she is willing to give a statement but only if it is not electronically recorded, then a recording need not take place. Such a refusal should be electronically recorded if practical.

27.10.3 Public safety exception. If law enforcement officials are required, for immediate public safety reasons such as ascertaining the nearby existence of guns or drug paraphernalia, or the status of hostages or kidnapped persons, to conduct custodial interrogation without the use of otherwise required constitutional safeguards, then a recording need not take place.

27.10.4 With permission of DOJ attorney. A DOJ attorney may authorize a non-recorded interrogation for reasons that do not fall within the prior three exceptions when a significant and articulable law enforcement purpose justifies such an interrogation. Such authorization shall be in writing and shall explain the rationale for granting such permission.

27.10.5 All exceptions shall be thoroughly documented by the officer in a written or electronic report as soon as practical.

1 Del. Admin. Code § 801-27.0

26 DE Reg. 223 (9/1/2022) (final)