46-4-409 . Exceptions to custodial recording requirements. A judge shall admit statements or evidence of statements that do not conform to 46-4-408 if, at hearing, the state proves by a preponderance of the evidence that: (1) the statements have been made voluntarily and are reliable; or (2) one or more of the following circumstances existed at the time of the custodial interrogation: (a) the questions put forth by law enforcement personnel and the person's responsive statements were part of the routine processing or booking of the person; (b) before or during a custodial interrogation, the person unambiguously declared that the person would respond to the law enforcement officer's questions only if the person's statements were not electronically recorded; (c) the failure to electronically record an interrogation in its entirety was the result of unforeseeable equipment failure and obtaining replacement equipment was not practicable; (d) exigent circumstances prevented the making of an electronic recording of the custodial interrogation; (e) the person's statements were surreptitiously recorded by or under the direction of law enforcement personnel; (f) the person's statement was made during a custodial interrogation that was conducted in another state by peace officers of that state in compliance with the laws of that state; or (g) the person's statement was made spontaneously and not in response to a question.
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