Senator Daniel McCay proposes the following substitute bill:




Chief Sponsor: Daniel McCay

House Sponsor: Lee B. Perry


8     General Description:
9          This bill modifies provisions related to law enforcement use of body-worn cameras.
10     Highlighted Provisions:
11          This bill:
12          ▸     modifies the list of circumstances in which an officer may deactivate a body-worn
13     camera;
14          ▸     defines terms;
15          ▸     requires a police officer to document reasons why the officer failed to comply with
16     requirements related to body-worn cameras; and
17          ▸     allows a presiding judge to provide an adverse inference instruction to a jury of a
18     criminal trial if an officer failed to comply with requirements related to body-worn
19     cameras, under specified circumstances.
20     Money Appropriated in this Bill:
21          None
22     Other Special Clauses:
23          None
24     Utah Code Sections Affected:
25     AMENDS:

26          77-7a-104, as last amended by Laws of Utah 2018, Chapters 285 and 316
27     ENACTS:
28          77-7a-104.1, Utah Code Annotated 1953

30     Be it enacted by the Legislature of the state of Utah:
31          Section 1. Section 77-7a-104 is amended to read:
32          77-7a-104. Activation and use of body-worn cameras.
33          (1) An officer using a body-worn camera shall verify that the equipment is properly
34     functioning as is reasonably within the officer's ability.
35          (2) An officer shall report any malfunctioning equipment to the officer's supervisor if:
36          (a) the body-worn camera issued to the officer is not functioning properly upon initial
37     inspection; or
38          (b) an officer determines that the officer's body-worn camera is not functioning
39     properly at any time while the officer is on duty.
40          (3) An officer shall wear the body-worn camera so that it is clearly visible to the person
41     being recorded.
42          (4) An officer shall activate the body-worn camera prior to any law enforcement
43     encounter, or as soon as reasonably possible.
44          (5) An officer shall record in an uninterrupted manner until after the conclusion of a
45     law enforcement encounter, except as an interruption of a recording is allowed under this
46     section.
47          (6) When going on duty and off duty, an officer who is issued a body-worn camera
48     shall record the officer's name, identification number, and the current time and date, unless the
49     information is already available due to the functionality of the body-worn camera.
50          (7) If a body-worn camera was present during a law enforcement encounter, the officer
51     shall document the presence of the body-worn camera in any report or other official record of a
52     contact.
53          (8) When a body-worn camera has been activated, the officer may not deactivate the
54     body-worn camera until the officer's direct participation in the law enforcement encounter is
55     complete, except as provided in Subsection (9).
56          (9) An officer may deactivate a body-worn camera:

57          (a) to consult with a supervisor or another officer;
58          (b) during a significant period of inactivity; [and]
59          (c) during a conversation with a sensitive victim of crime, a witness of a crime, or an
60     individual who wishes to report or discuss criminal activity if:
61          (i) the individual who is the subject of the recording requests that the officer deactivate
62     the officer's body-worn camera; and
63          (ii) the officer believes that the value of the information outweighs the value of the
64     potential recording and records the request by the individual to deactivate the body-worn
65     camera[.]; or
66          (d) during a conversation with a victim of a sexual offense, as described in Title 76,
67     Chapter 5, Part 4, Sexual Offenses, or domestic violence, as defined in Section 77-36-1, if:
68          (i) the officer is conducting an evidence-based lethality assessment;
69          (ii) the victim or the officer believes that deactivating the body-worn camera recording:
70          (A) will encourage complete and accurate information sharing by the victim; or
71          (B) is necessary to protect the safety or identity of the victim; and
72          (iii) the officer's body-worn camera is reactivated as soon as reasonably possible after
73     the evidence-based lethality assessment is complete.
74          (10) If an officer deactivates or fails to activate a body-worn camera in violation of this
75     section, the officer shall document the reason for deactivating or for failing to activate a
76     body-worn camera in a written report.
77          (11) (a) For purposes of this Subsection (11):
78          (i) "Health care facility" means the same as that term is defined in Section 78B-3-403.
79          (ii) "Health care provider" means the same as that term is defined in Section
80     78B-3-403.
81          (iii) "Hospital" means the same as that term is defined in Section 78B-3-403.
82          (iv) "Human service program" means the same as that term is defined in Section
83     62A-2-101.
84          (b) An officer may not activate a body-worn camera in a hospital, health care facility,
85     human service program, or the clinic of a health care provider, except during a law
86     enforcement encounter, and with notice under Section 77-7a-105.
87          (12) A violation of this section may not serve as the sole basis to dismiss a criminal

88     case or charge.
89          (13) Nothing in this section precludes a law enforcement agency from establishing
90     internal agency policies for an officer's failure to comply with the requirements of this section.
91          Section 2. Section 77-7a-104.1 is enacted to read:
92          77-7a-104.1. Adverse inference jury instruction.
93          (1) As used in this section, "adverse inference instruction" means an instruction that:
94          (a) is provided to a jury in accordance with Utah Rules of Criminal Procedure, Rule 19;
95     and
96          (b) directs the jury that an officer's failure to comply with a requirement of Section
97     77-7a-104 may give rise to an adverse inference against the officer.
98          (2) (a) A court presiding over a jury trial may provide an adverse inference instruction
99     if the defendant seeking the adverse inference instruction establishes by a preponderance of the
100     evidence that:
101          (i) an officer intentionally or, with reckless disregard of a requirement of Section
102     77-7a-104, failed to comply with a requirement of Section 77-7a-104; and
103          (ii) the officer's failure to comply with the requirement of Section 77-7a-104 is
104     reasonably likely to affect the outcome of the defendant's trial.
105          (b) In considering whether to include an adverse inference instruction under Subsection
106     (2)(a), the court shall consider:
107          (i) the degree of prejudice to the defendant as a result of the officer's failure to comply
108     with Section 77-7a-104;
109          (ii) the materiality and importance of the missing evidence in relation to the case as a
110     whole;
111          (iii) the strength of the remaining evidence;
112          (iv) the degree of fault on behalf of the officer described in Subsection (2)(a)(i) or the
113     law enforcement agency employing the officer, including whether evidence supports that the
114     officer or the law enforcement agency displays a pattern of intentional or reckless disregard of
115     the requirements of Section 77-7a-104; and
116          (v) other considerations the court determines are relevant to ensure just adjudication
117     and due process.
118          (c) If a court includes an adverse inference instruction, the prosecutor shall, after the

119     conclusion of the trial, send written notice of the instruction to the law enforcement agency that
120     employed the officer described in Subsection (2)(a)(i) at the time of the offense, including:
121          (i) the written order or a description of the order allowing for the instruction;
122          (ii) the language of the instruction; and
123          (iii) the outcome of the trial.