National Organizations

The following national organizations, listed alphabetically, have taken formal positions regarding the practice of electronic recording of custodial interrogations.

American Bar Association
American Civil Liberties Union
American Federation of Police and Concerned Citizens
American Judicature Society
American Law Institute
Center For Policy Alternatives
Constitution Project
Innocence Project
International Association of Chiefs of Police
Justice Project
National Association of Criminal Defense Lawyers
National Conference of Commissioners on Uniform State Laws
National District Attorney's Association 

American Bar Association

In February 2004, the House of Delegates approved a resolution urging “all law enforcement agencies to videotape the entirety of custodial interrogations of crime suspects at places where suspects are held for questioning, or, where videotaping is impractical, to audiotape the entirety of such custodial interrogations.” The House of Delegates also urged “legislatures and/or courts to enact laws or rules of procedure” to the same effect. ABA Resolution 8A - Videotaping Custodial Interrogations.

American Civil Liberties Union

Members of the ACLU work “in courts, legislatures and communities to defend and preserve the individual right and liberties that the Constitution and laws of the United States guarantee everyone in this country.”

In May 2008, the Director and Legislative Counsel of the ACLU sent a memorandum to members of the United States House of Representatives urging them “to support the video recording amendment” to the defense authorization bill, which “would make an important – and extraordinarily practical - change to Defense Department interrogation practices by requiring the recording and retention of videos of strategic interrogations of persons under the custody or control of the Defense Department.”

American Federation of Police and Concerned Citizens

This is a national organization, founded in 1966, among other purposes, to assist family members and children of officers killed in the line of duty, and promotes the training of police reserves. In November 2011, the Executive Director wrote to the author on behalf of the national President:

“Over the years we have been instrumental in promoting not only safety in law enforcement but also advocating for the wellness and welfare of departments and their individual officers. We believe that the use of recording devices during interrogation and during other crucial times of an investigation provides a great measure of safety to the interrogating officers and to the departments as well, especially when trying to meet certain legal guidelines and stave off potential litigation. Therefore we endorse your writings pertaining to the promotion of recording devices to be utilized whenever possible.”

American Judicature Society

The Society is an independent, non-partisan, membership organization working nationally to protect the integrity of the American justice system. A 2006 editorial in the Society’s publication, entitled Systemic flaws on our criminal justice system, states (89 Judicature 244 at 246):

Confessions. DNA exonerations have shown what many are not willing to believe: that even in the Miranda era, some confessions are still coerced, and some are simply false, due to police manipulation of suspects who are misled into confessing to crimes they did not commit. To avoid over-reaching and impermissible psychological ploys, all station house interrogation could be videotaped from start to finish (not just the formal statement of the suspect).”

American Law Institute

The Institute is an independent organization producing scholarly work to clarify, modernize, and otherwise improve the law. In 1975, the Institute adopted its Model Code of Pre-Arraignment Procedure §130.4 (3) (c) (1975), which provides that law enforcement agencies should make a sound recording of “any questioning of the arrested person and any statement he makes in response thereto.” The purpose is “to aid the resolution of factual disputes which may subsequently arise concerning what happened to an arrested person in custody. Such a provision is central to the Code’s attempt to provide clear and enforceable rules governing the period between arrest and judicial appearance” (Note, page 39).

Center For Policy Alternatives

The Center is an independent, nonpartisan, nonprofit organization working to strengthen the capacity of state legislators to lead and achieve progressive change. In 2005, the Center recommended that states enact The Electronic Recording of Interrogations Act, which requires that any custodial interrogation conducted by police must be electronically recorded in its entirety.

Constitution Project

Founded in 1996, the Project enlists experts and practitioners from across the political spectrum in order to promote and safeguard the Constitution, America’s founding charter, reform the nation’s broken criminal justice system, and strengthen the rule of law through scholarship, consensus policy reforms, and public education. Its report, Mandatory Justice: The Death Penalty Revisited(2005), contains the following recommendation (No. 23, p. xx; see also pp.75 -84,131-133):

“Custodial interrogations of a suspect in a homicide case should be videotaped or digitally recorded whenever practicable. Recordings should include the entire custodial interrogation process. Where videotaping or digital video recording is impracticable, an alternative uniform method, such as audiotaping, should be established. Where no recording is practicable, any statements made by the homicide suspect should later be repeated to the suspect and his or her comments recorded. Only a substantial violation of these rules requires suppression at trial of a resulting statement.”

Innocence Project

The Project is a national litigation and public policy organization dedicated to exonerating wrongfully convicted individuals through DNA testing and reforming the criminal justice system to prevent future injustice. In 2011, the Project published its model state statute, an Act Directing the Electronic Recording of Custodial Interrogations. In an accompanying statement, the Project wrote, “Mandating the recordation of custodial interrogations has long been identified as a reform that shields the innocent from wrongful convictions by creating a record of the questioning that yields a confession.” The Project also recounted benefits that the practice offers law enforcement: capturing details that may be lost if unrecorded which aids better investigations; creating a record of the suspect’s statements, making it difficult for him/her to change the account; permitting officers to concentrate on the interview without the distraction of note taking; providing a record of how the officer acted and treated the suspect during the interview; protecting officers from false claims of coercion; enhancing public confidence in law enforcement; and reducing citizen complaints against the police.

International Association of Chiefs of Police

The IACP is the world’s oldest and largest nonprofit membership organization of police executives, with over 20,000 members in over 100 different countries. In 2006, the IACP issued its Model Policy on Electronic Recording of Interrogations and Confessions.

Policy. “It is the policy of this law enforcement agency to electronically record specific custodial interrogations and confessions in order to provide an evidentiary record of statements made by suspects of major crimes. Such electronic recordings can help protect both the suspect(s) and interviewing officers against potential assertions of police coercion or related interrogation misconduct, and may increase the likelihood of successful prosecution.” §II.

General Rule: “Officers shall electronically record interrogations conducted in a place of detention involving major crimes as defined by this department.” §IV.A.1.
“Interrogations and confessions shall be recorded in their entirety starting with the interrogator’s entrance into the interview room and concluding upon departure of the interrogator and suspect.” §IV.B.4.

Exceptions: If electronic recordings cannot be conducted due to equipment failure, lack of suspect cooperation, or for other reasons deemed pertinent to successful interrogation by the case manager, the basis for such occurrences shall be documented. This includes but is not limited to spontaneous declarations or other statements not elicited by the police questioning. §IV.A.4.

Preservation: All recordings shall be governed by this department’s policy and procedures for the handling and preservation of evidence. Recordings shall be retained by the department in secure storage for a period of time as defined by state law or the office of the prosecutor. §IV11-12.

In February 2007, the IACP National Law Enforcement Policy Center issued a Concepts and Issues Paper, to accompany the Model Policy. Included in this document are the following:

I.  INTRODUCTION. 

B.  Background

“Video technology has become widely accepted among law enforcement agencies and today is used routinely for a variety of purposes.  These include, among other adaptations, documentation of crime scenes, recording victim and witness statements, sobriety tests, traffic stops, surveillance, accident scenes, and crime scenes.

“Electronic recording—defined in the model policy as the use of any audio or video recording whether using magnetic tape, digital means, or other recording media—of interrogations and confessions is also now used by a substantial number of law enforcement agencies in both large and small jurisdictions.”

* * *

II.  PROCEDURES. 

A. General Requirements.

* * *

“The intent of the model policy is that custodial interrogations be recorded at a place of detention; detention meaning, for example, a police station, jail, or holding facility where electronic recording capabilities are present.  Once an individual has been arrested and given Miranda rights a custodial interrogation takes place by ‘words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.’  This would not include simple fact finding interviews that are conducted at police stations when an individual is not the focus of suspicion, is not in custody, and officers are not attempting to elicit incriminating responses.”

Full Interrogations versus recaps.

* * *

“All things considered, full recording of interrogation sessions and confessions are generally preferable. This is the only positive means by which police can demonstrate that interrogations were conducted properly and confessions elicited legally.

* * *

“Electronic Recordings and Quality of Interrogations. There is little conclusive evidence to show that the use of recordings has any significant effect on the willingness of suspects to talk. While some are willing to talk or even play to the camera, others are reluctant. But the majority of agencies that use recordings have found that they were able to get more incriminating information from suspects who were recorded than they were in traditional interrogations.

“Possibly of more interest to investigators who routinely conduct interrogations are study findings that recordings do not noticeably inhibit the interrogation practices of officers over the long run.

* * *

"Once investigators became accustomed to working in front of the camera, they typically reverted to traditional tactics. The use of profanity and street language by interrogators, for example, was a matter that caused initial concern. But, interrogators found that 'as long as they [were] following up on the suspect's choice of words to communicate clearly rather than gratuitously or in an intimidating manner, it [did] not seem to bother judges or juries."

“Finally, in terms of the quality of confessions, the survey of agencies using recordings confirmed that defense attorneys lodged fewer allegations of coercion or intimidation after the agencies began to record. Administrations of Miranda warnings on camera are a primary reason for this, as well as the straight-forward record of the interrogation or confession or both provided by the recording.

* * *

“Prosecutor's Views. Prosecutors surveyed indicate that the use of videotape has little or no bearing on their decision to charge suspects. But they almost unanimously agree that recordings help them assess the strengths and weaknesses of the state’s case and help them prepare for trial. Recordings, they say, provide the details of the interrogation (such as the sophistication of the suspect, how he answers questions, body language and intonation) that are not possible to capture on audiotape alone or through transcripts but are important to case preparation.

“Electronic recordings can also be of value to prosecutors in negotiating acceptable pleas. If the recording shows a particularly strong case for the state, a plea bargain would normally favor the prosecution. On the other hand, should there be weaknesses with the case that are revealed on the tape, a reasonable plea bargain may be struck that averts more serious prosecutorial dilemmas should the case proceed to trial.”

Justice Project

The Justice Project consists of two non-partisan organizations dedicated to combating injustice and to creating a more humane and just world. In 2007, the Project issued a policy review entitled Electronic Recording of Custodial Interrogations, A Policy Review, which includes a summary of the benefits to be obtained by both law enforcement and suspects from recording custodial interviews, and detriments resulting from failure to record (pages 2-7, 15-21). A Model Bill for Electronic Recording of Custodial Interrogations is included (pages 22-23).

National Association of Criminal Defense Lawyers

The NACDL is a nationwide organization of lawyers who specialize in the defense of person accused of violations of state and federal criminal laws. In 2002, the Board of Directors adopted a resolution supporting “the videotaping of law enforcement interrogations from beginning to end and calls upon Congress and state legislatures to pass legislation mandating this practice.”

National Conference of Commissioners on Uniform State Laws

The Conference, commonly known as the Uniform Law Commission (ULC), established over 115 years ago, is a state- supported organization which provides non-partisan, well-conceived and well-drafted legislation, in order to bring clarity and stability to critical areas of state statutory law. Commissioners are lawyers appointed by state governments, the District of Columbia, Puerto Rico and the U. S. Virgin Islands, to research, draft and promote enactment of uniform state laws where uniformity among the states is desirable and practical. The Commissioners donate thousands of hours every year as a public service, and receive no salary or compensation for their work.

  • In 1987, the ULC approved and recommended for enactment in all states Uniform Rules of Criminal Procedure, which included the following Comment to Rule 243, relating to questioning of arrested persons in custody: “The informing of rights, any waiver thereof, and any questioning must be recorded upon a sound recording device whenever feasible or if questioning occurs at a place of detention.”
  • In July 2010, the ULC approved and recommended for enactment in all states the Uniform Electronic Recordation of Custodial Interrogations Act, which is a comprehensive uniform state statute on electronic recording of custodial interrogations. The Prefatory Note explains the need for a uniform state law on the subject of recording custodial interviews in felony investigations, as well as the benefits to be derived from the practice of making electronic recordings of interviews from beginning to end (pages 6-11). The “Justifications for Electronic Recording” are:

    Three broad types of justifications have been offered for electronic recording of interrogations: promoting truth-finding, promoting efficiency, and protecting constitutional values. See generally LEO, supra, at 296-305 (elaborating on the justifications noted here).The list below summarizes the major ways in which electronic recording furthers these goals.

    • Promoting Truth-Finding

    Truth-finding is promoted in seven ways:

    1. Reducing Lying: Neither defendants nor police are likely to lie about what happened when a tape recording can expose the truth.
       
    2. Compensating for Bad Witness Memories: Witness memories are notoriously unreliable. Video and audio recording, especially when both sorts of recording are combined, potentially offer a complete, verbatim, contemporaneous record of events, significantly compensating for otherwise weak witness memories.
    3. Deterring Risky Interrogation Methods: “Risky” interrogation techniques are those reasonably likely to elicit false confessions. Police are less likely to use such techniques when they are open for public scrutiny. Clearly, harsh techniques that police understand will elicit public and professional disapproval, even if only rarely used today, are ones that are most likely to disappear initially. But more subtle techniques creating undue dangers of false confessions of which the police may indeed be unaware will, over time, fade away if exposed to the light of judicial, scientific, and police administrator criticism—criticism that electronic recording of events facilitates. Electronic recording thus most helps precisely the vast bulk of interrogators, who are hardworking, highly professional officers, to improve the quality of their interrogations and the accuracy of any resulting statements still further.
    4. Police Culture: Taping enables supervisors to review, monitor, and give feedback on detectives’ interrogation techniques. Over time, resulting efforts to educate the police in the use of proper techniques, combined with ready accountability for errors, can help to create a culture valuing truth over conviction. Police tunnel vision about alternative suspects and insistence on collecting whatever evidence they can to convict their initial suspect (the “confirmation bias”) have been shown to be major contributors to wrongful convictions. Tunnel vision and confirmation bias are not the result of police bad faith. To the contrary, these cognitive patterns are common to all humans but can be amplified by stress, time pressure, and institutional cultures that encourage zealous pursuit of even the loftiest of goals – factors often present in law enforcement organizations. Moreover, these cognitive processes work largely at a subconscious level, thus requiring procedural safeguards and internal organizational cultures that act as counterweights. A more balanced police culture of getting it right rather than just getting it done would be an enormously good thing.
    5. Filtering Weak Cases: By permitting police and prosecutors to review tapes in a search for tainted confessions, prosecutions undertaken with an undue risk of convicting the innocent can be nipped in the bud—before too much damage is done—because the tapes can reveal the presence of risky interrogation techniques that may ensnare the innocent.
    6. Factfinder Assessments: Judges and juries will find it easier more accurately to assess credibility and determine whether a particular confession is involuntary or untrue if these factfinders are aided by recording, which reveals subtleties of tone of voice, body language, and technique that testimony alone cannot capture.
    7. Improving Detective Focus: A detective who has no need to take notes is better able to focus his attention, including his choice of questions, on the interviewee if machines do the job of recording. Such focus might also improve the skill with which detectives can seek to discover truth by improving interrogation-technique quality.
     

There are also essential economic efficiency benefits to recording.

  • Promoting Efficiency

Efficiency is promoted in these four ways:

  1. Reduced Number of Suppression Motions: Because the facts will be little disputed, the chance of frivolous suppression motions being filed declines, and those that do occur can be more speedily dispatched, perhaps not requiring many, or even any, police witnesses at suppression hearings.
  2. Improved Police Investigations: The ability of police teams to review recordings can draw greater attention to fine details that might escape notice and enable more fully-informed feedback from other officers. Police can thus more effectively evaluate the truthfulness of the suspect’s statement and move on to consider alternative perpetrators, where appropriate.
  3. Improved Prosecutor Review and Case Processing: For guilty defendants, an electronic record enhances prosecutor bargaining power, more readily resulting in plea agreements. Prosecutors can more thoroughly prepare their cases, both because of the information on the tape and because of more available preparation time resulting from the decline in frivolous pretrial motions.
  4. Hung Juries Are Less Likely: For guilty defendants who insist on trials, a tape makes the likelihood of a relatively speedy conviction by a jury higher, while reducing the chances that they will hang. The contrary outcome—repeated jury trials in the hope of finally getting a conviction—is extraordinarily expensive. But, as I now explain, videotaping not only saves money while protecting the innocent but also enhances respect for constitutional rights.

Protecting Constitutional Values

Constitutional values are protected in six primary ways:

  1. Suppression Motion Accuracy: Valid claims of Miranda, Sixth Amendment right to counsel, and Due Process voluntariness violations will be more readily proven, creating a disincentive for future violations, when such violations, should they occur, are recorded.
  2. Brady Obligations: Brady v. Maryland, 373 U.S. 83 (1963), requires prosecutors to produce to the defense before trial all material exculpatory evidence. Some commentators argue that Brady does more than this: it implies an affirmative duty to preserve such evidence. Electronic recordings further this preservation obligation.
  3. Police Training: Recordings make it easier for superiors to train police in how to comply with constitutional mandates.
  4. Restraining Unwarranted State Power: Recordings make it easier for the press, the judiciary, prosecutors, independent watchdog groups, and police administrators to identify and correct the exercise of power by law enforcement.
  5. Race: Racial and other bias can play subtle but powerful roles in altering who the police question and how they do so. Electronic recordings make it easier to identify such biases and to help officers avoid them in the future, difficult tasks without recordings precisely because such biases are often unconscious, thus operating outside police awareness.
  6. Legitimacy: Recordings can help to improve public confidence in the fairness and professionalism of policing. By ending the secrecy surrounding interrogations, unwarranted suspicions can be put to rest, warranted ones acted upon. Enhanced legitimacy is a good in itself in a democracy, but it has also been proven to reduce crime and enhance citizen cooperation in solving it.

A detailed explanation accompanies each section of the ULC uniform statute (pages 12 -53).

The ULC uniform statute has been used as the basis for bills introduced in and enacted by several state legislatures. The effort to obtain passage of the ULC statute will continue in coming years in states that do not yet have mandatory recording legislation or court rules.

National District Attorney’s Association

The NDAA is the oldest and largest professional organization representing criminal prosecutors in the world. NDAA serves as a nationwide, interdisciplinary resource center for training, research, technical assistance, and publications reflecting the highest standards and cutting-edge practices of the prosecutorial profession.

  • In 2004, the NDAA Board of Directors adopted a Policy on Electronic Recording of Statements. The policy states:

The National District Attorneys Association opposes the exclusion of otherwise truthful and reliable statements by suspects and witnesses simply because the statement was not electronically recorded.

“America’s prosecutors encourage police agencies to record statements by suspects and witnesses but recognize that there are circumstances in which the statements are not or could not be recorded. In a truth-based justice system we should always want juries to have as much truthful information as possible. The use of juries as the trusted finders of fact in criminal trials throughout the courts of the United States provides the best assurance that true and correct verdicts will be found. Every concern raised by proponents of mandatory electronically recorded statements is properly resolved by motions to suppress, jury trials, or appellate action. Virtually every jurisdiction in the United States requires prosecutors not only to prove the accuracy of a confession, but also to prove that it was freely, voluntarily, and knowingly given. Exclusion of reliable evidence harms the truth seeking process and increases the risk of miscarriages of justice.”

  • In 2009, the NDAA also endorsed a series of proposals contained in a document entitled “Expanding Electronic Recording of Statements by Law Enforcement: An Incentive-Based Approach,” which was submitted to the Uniform Law Commissioners. The first paragraph of the Executive Summary states (page i):

“The benefits of electronic recording of statements obtained by law enforcement officers through custodial interviews have been widely recognized by various commentators and courts. Electronic recording provides an objective record of what happened during the interview. By preserving the actual words as they were spoken during police/suspect encounters, electronic recording can reveal the content and context of the statements, demonstrate police compliance with Miranda, assist courts in determining the voluntariness of a statement, and disproving unfounded defense claims that coercion, duress, entrapment or other types of misconduct occurred.”

The Summary continues by pointing out various costs associated with electronic recording, in particular for equipment, and clerical and record keeping support. The Summary continues (page i):

“The biggest cost from recording, however, would come if rule makers were to put in place some sort of ‘exclusionary rule’ that would bar prosecutors from presenting reliable but unrecorded statements from defendants. Such an exclusionary rule would obviously provide an incentive to law enforcement agencies to adopt electronic recording, but at the excessive cost of depriving juries of extremely important information about the guilt of a suspect. Moreover, because of these potential costs, a rulemaker considering mandating electronic recording might be required to keep the mandate narrow (by, for example, limiting the recording requirement to custodial interviews for a few serious crimes conducted at police stations).

“Rather than pursuing this ‘stick’ approach to encouraging electronic record, a far better idea would be to use a ‘carrot’ or incentive. Law enforcement and prosecuting agencies should be provided an incentive to use electronic recording. In particular, given the objective record that recording provides of what happened during a custodial interview, the recording should be automatically admissible in evidence without the need to call the police officer who made the recording in all proceedings – with the exception of a trial, where the defendant has a constitutional right to confront the witnesses against him. Accordingly, if a police officer certifies under penalty of perjury that the recording is accurate, then the recording should be admissible at pre-trial and post-trial hearings unless the defendant can make a substantial preliminary showing that there is some reason to disbelieve the officer. Such an approach would provide substantial incentives to law enforcement agencies to record custodial interrogations, by allowing agencies to avoid the need to send officers to testify at preliminary hearings recording the statements that they have obtained.”

In the next section of the document, the benefits of electronic recordings of custodial interviews are expanded upon (page 1):

“The benefits of electronic recording of custodial interviews have been widely discussed in the literature and need only be briefly reviewed here. In particular, recording of interviews of a suspect provides an objective record of what has happened during police interrogations, eliminating ‘swearing contests’ about who said what to whom. For example, by demonstrating exactly what happened during questioning, claims by suspects that they have been mistreated to extract a confession are often effectively rebutted by a recording.

“Recording has other benefits for police officers. By maintaining a recording of what is happening during questioning, the recording permits the interrogating officer to focus on questioning the suspect rather than writing notes. The recording also eliminates the need for a detailed report from officer about precisely what was said during the interview. The officer is also free to go back to review the recording to see whether any details about the investigation might have been overlooked. Later hearings about the interrogation are also simplified, as the recording usually eliminates debate about what happened during the recorded interview.

“Defendants and the courts also benefit from recorded statements. Because the officer is aware that an objective record is being made of the interview, there is a clear disincentive for the officer to use improper questioning techniques. Also, in highly unusual cases where a mentally disabled suspect has ‘confessed’ to a crime that he did not commit, the recording will provide an opportunity for a reviewing court to identify the problem. More generally, recorded statements provide clear evidence to judges and juries of what was said during an interview – including the demeanor and physical appearance of those involved.”

The document goes on to recount that proponents of recording have proposed the imposition of sanctions in the event a recording should have been but was not made, namely:

“…suppression of the statement from the defendant that law enforcement agent has obtained, regardless of how reliable the statement may be and how important it is to obtaining the conviction of a guilty criminal. In other cases, the sanction may be a jury instruction, cautioning the jury that it should not readily credit the law enforcement officer’s testimony about the circumstances surrounding the interrogation.”

Then follows an explanation as to why it is unwise to mandate electronic recording of custodial interviews, and why a “carrot” rather than a “stick” approach ought to be used. Instead of sanctioning an unexcused failure to record (the “stick”), there should be no requirement imposed that recordings must be made (pages 3-6). Instead, provisions should be to reward law enforcement agencies for making electronic recordings – “the ‘carrot’ of giving a presumption of admissibility to any recorded custodial interview in a pre-trial or post-trial proceeding” (page 6). A proposed model statute is included, which embodies the “carrot” approach (pages 6-8), followed by an analysis of the proposed statute (pages 8-16). The Conclusion states:

“Recording of custodial interviews by law enforcement officers is desirable objective to encourage. At the same time, however, that objective is better accomplished by providing incentives to law enforcement agents to record such interviews, rather than drawing up a set of rules to punish them for failing to do so by excluding reliable confessions. A proposed model statute creating a presumption of admissibility for recorded statements effectively accomplishes this goal.”

  • The NDAA Executive Director has said of electronic recordings, “It’s more compelling, powerful evidence.” B. Warren, Scripps Howard News, Jan. 13, 2012.

     
  • Commentary: The so-called “carrot” suggested by the NDAA is of little or no real value to prosecutors. In the usual pretrial hearing, the admissibility of the recordings are usually stipulated, thus rendering testimony by a participating officer unnecessary. As the NDAA acknowledges, in trials in criminal cases, consistent with the constitutional right to confront government witnesses – contained in the Sixth Amendment to the federal Constitution, and virtually all state constitutions – there is serious doubt that a statute may authorize introduction of a tape recording without presenting a witness who has personal knowledge of the circumstances under which the recording was made. In any event, the calling of an officer to testify to the foundation for a recording is routine, and normally takes but a few minutes.

◦  Commentary:  The fundamental problem with the NDAA proposal has been explained in the Commentaries to the Guidelines and Best Practices Statements in Part 2. They lack the force of law, contain no requirement that they either be adopted or followed, and provide no sanction for non-compliance. While better than nothing, they are in no way the equivalent of a statewide statutory mandate that contains some provision for enforcement by, for example, a presumption of inadmissibility or a cautionary jury instruction.

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