Current through Register Vol. 28, No. 3, September 1, 2024
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.
