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Rule 616. ?Statements Made During CustodialInterrogations.


(a)      Definitions.


(1)   "Custodialinterrogation" means questioning or other conduct by a law enforcementofficer that is reasonably likely to elicit an incriminating response from a personand occurs when reasonable persons in the same circumstances would considerthemselves in custody.


(2)   "Electronicrecording" means an audio recording or an audio-video recording thataccurately records a custodial interrogation.


(3)  "Lawenforcement agency? means a governmental entity or person authorized by agovernmental entity or by state law to enforce criminal laws or investigatesuspected criminal activity.? The termincludes a nongovernmental entity that has been delegated the authority toenforce criminal laws or investigate suspected criminal activity.


(4)   "Lawenforcement officer" means a person described in Utah Code ? 53-13-103(1).


(5)??? ?Place of detention? means a facility orarea owned or operated by a law enforcement agency where persons are detainedin connection with criminal investigations or questioned about alleged criminalconduct.? The term includes a lawenforcement agency station, jail, holding cell, correctional or detentionfacility, police vehicle or any other stationary or mobile building owned oroperated by a law enforcement agency.


(6) ??Statement? means the same as in Rule 801(a).


(b)      Admissibility.? Except asotherwise provided in Subsection (c) of this rule, evidence of a statement madeby the defendant during a custodial interrogation in a place of detention shallnot be admitted against the defendant in a felony criminal prosecution unlessan electronic recording of the statement was made and is available at trial.? This requirement is in addition to, and doesnot diminish, any other requirement regarding the admissibility of a person?sstatements.


(c)      Exceptions.  Notwithstanding subsection (b), the court may admit astatement made under any of the following circumstances if the statement isotherwise admissible under the law:?


(1) Thestatement was made prior to January 1, 2016;


(2)? The statement was made during a custodialinterrogation that occurred outside Utah and was conducted by officers of ajurisdiction outside Utah;


(3)? The statement is offered for impeachmentpurposes only;


(4)? The statement was a spontaneous statementmade outside the course of a custodial interrogation or made during routine processing or booking of the person;


(5)   Beforeor during a custodial interrogation, the person agreed to respond to questionsonly if his or her statements were not electronically recorded, provided thatsuch agreement is electronically recorded or documented in writing;


(6)  The law enforcement officers conducting the custodial interrogation in goodfaith failed to make an electronic recording because the officers inadvertentlyfailed to operate the recording equipment properly, or without the knowledge ofany of the officers the recording equipment malfunctioned or stopped operating;


(7)  The law enforcement officers conducting or observing the custodialinterrogation reasonably believed that the crime for which the person was beinginvestigated was not a felony under Utah law;


(8)? Substantial exigent circumstances existedthat prevented or rendered unfeasible the making of an electronic recording ofthe custodial interrogation, or prevented its preservation and availability attrial; or


(9) ???The court finds:

(A)? The statement has substantial guarantees oftrustworthiness and reliability equivalent to those of an electronic recording;and

(B) Admitting thestatement best serves the purposes of these rules and the interests ofjustice.?? ?


(d)??? Procedure to determine admissibility.


(1)  Notice. If the prosecutionintends to offer an unrecorded statement under an exception described inSubsection (c)(4) through (9) of this Rule, theprosecution must serve the defendant with written notice of an intent to relyon such an exception not later than 30 days before trial.


(2)  Instruction.? If the court admits into evidence a statementmade during a custodial interrogation that was not electronically recordedunder an exception described in Subsection (c)(4) through (9) of this Rule, thecourt, upon request of the defendant, may give cautionary instructions to thejury concerning the unrecorded statement.

2015Advisory Committee Note ? In 2008, the Utah Attorney General's Office, incooperation with statewide law enforcement agencies, drafted a Best PracticesStatement for Law Enforcement that recommended electronic recording ofcustodial interrogations. Since then, most agencies have adopted the Statementor their own policies to record custodial interviews. This rule is promulgated tobring statewide uniformity to the admissibility of statements made duringcustodial interrogations. See State v. Perea, 2013 UT 68, ? 130, 322 P.3d624.?

Several states have adopted requirements forrecording custodial interviews, and the National Conference of Commissioners onUniform State Law has approved and recommended for enactment a UniformElectronic Recordation of Custodial Interrogations Act.

The benefits of recording custodialinterrogations include ?avoiding unwarranted claims of coercion?; preventingthe use of ?actual coercive tactics by police?; and demonstrating ?thevoluntariness of the confession, the context in which a particular statementwas made, and . . . the actual content of the statement.? State v. James, 858 P.2d 1012, 1018(Utah Ct. App. 1993) (internal quotation marks omitted). Recordingsassist the fact-finder and protect police officers and agencies from falseclaims of coercion and misconduct. Perea, 2013 UT 68, ? 130 n.23.

The rule addresses direct custodialquestioning by law enforcement as well as other conduct during custodialquestioning. It is intended to ensure that the custodial interrogation,including any part of the interrogation that is written or electronicallytransmitted, is fully and fairly recorded.?Also, the admissibility of evidence under this rule is a preliminaryquestion governed by Rule 104.