Custodial Interrogation Recording

Custodial Interrogation Recording Compendium By State

Alabama

Updated: 4/11/2014 - Print the Alabama entry.

Statutes and Court Rules

Alabama has no statute or court rule relating to recording.

Departments we have identified that presently record:
  • Baldwin CS
  • Daphne
  • Mobile
  • Mobile CS
  • Prichard

 

 

 

 

 

 

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Alaska

Updated: 4/9/2014 - Print the Alaska entry.

Statutes and Court Rules

Alaska has a 1985 Supreme Court rule relating to recording: Stephan v. State, 711 P.2d 1156, 1161 (Alaska (1985).

  • Since 1985, all departments are required to record custodial interrogations of suspects in a place of detention, during both felony and misdemeanor investigations, pursuant to the ruling of the Supreme Court in Stephan v. State, 711 P.2d 1156, 1162-65 (Alaska 1985). The Court held that the Due Process Clause of the Alaska Constitution requires that, if feasible, interviews of criminal suspects conducted in places of detention must be electronically recorded (711 P.2d at 1162- 65):

“It is not because a police officer is more dishonest than the rest of us that we…demand an objective recordation of the critical events. Rather, it is because we are entitled to assume he is no less human – no less inclined to reconstruct and interpret past events in a light most favorable to himself – that we should not permit him to be a ‘judge of his own cause.’” (Quoting Y. Kamisar, Forward: Brewer v. Williams - - A Hard Look at a Discomfiting Record, 66 Geo. L.J. 209 (1977-78)).

* * *

“In both of the cases before us, the police were engaged in custodial interrogations of suspects in a place of detention. A working recording device was readily available, but was used to record only part of the questioning. Compliance with the recording rule is not unduly burdensome under these circumstances. Turning the recorder on a few minutes earlier entails minimal cost and effort. In return, less time, money and resources would have been consumed in resolving the disputes that arose over the events that occurred during the interrogations.

“The only real reason advanced by police for their frequent failure to electronically record an entire interrogation is their claim that recordings tend to have a ‘chilling effect’ on a suspect’s willingness to talk. Given the fact that an accused has a constitutional right to remain silent, under both the state and federal constitutions, and that he must be clearly warned of that right prior to any custodial interrogation, this argument is not persuasive.

In summary, the rule that we adopt today requires that custodial interrogations in a place of detention, including the giving of the accused’s Miranda rights, must be electronically recorded. To satisfy this due process requirement, the recording must clearly indicate that it recounts the entire interview. Thus, explanations should be given at the beginning, the end and before and after any interruptions in the recording, so that courts are not left to speculate about what took place.

“Since its announcement, the Mallott rule has always included a proviso, ‘when feasible.’ The failure to electronically record an entire custodial interrogation will, therefore, be considered a violation of the rule, and subject to exclusion, only if the failure is unexcused. Acceptable excuses might include an unavoidable power or equipment failure, or a situation where the suspect refuses to answer any questions if the conversation is being recorded. We need not anticipate all such possible excuses here, for courts must carefully scrutinize each situation on a case-by-case basis. Any time a full recording is not made, however, the state must persuade the trial court, by a preponderance of the evidence, that recording was not feasible under the circumstances, and in such cases the failure to record should be viewed with distrust.

* * *

“… While other remedies may each have their merits, we believe an exclusionary rule will best protect the suspects’ constitutional rights, provide clear direction to law enforcement agencies and lower courts, and preserve the integrity of our justice system.”

* * *

“… The imposition of sanctions against an individual officer will not necessarily solve what appears to be a systemic problem. Agency policy and operations must change, not simply individual behaviors. Once they are fully aware of the consequences of unexcused violations of the Mallott rule, we are confident that law enforcement agencies will establish effective procedures to implement the rule and provide adequate training for their personnel. Suppression of statements taken in violation of the rule will, therefore, deter continued disregard of its requirements by officers, agencies and courts.

“Another purpose is also served by the rule that we now adopt. The integrity of our judicial system is subject to question whenever a court rules on the admissibility of a questionable confession, based solely upon the court’s acceptance of the testimony of an interested party, whether it be the interrogating officer or the defendant. This is especially true when objective evidence of the circumstances surrounding the confession could have been preserved by the mere flip of a switch. Routine and systematic recording of custodial interrogations will provide such evidence, and avoid any suggestion that the court is biased in favor of either party.

“Most importantly, an exclusionary rule furthers the protection of individual constitutional rights. Strong protection is needed to ensure that a suspect’s right to counsel, his privilege against self incrimination, and due process guarantees are protected. A confession is generally such conclusive evidence of guilt that a rule of exclusion is justified, when the state, without excuse, fails to preserve evidence of the interchange leading up to the formal statement. This is particularly true when, as in these cases, the defendant may have been deprived of potentially favorable evidence simply because a police officer, in his own discretion, chose to turn the recorder on twenty minutes into the interview rather than at the beginning. Exclusion is warranted under these circumstances because the arbitrary failure to preserve the entire conversation directly affects a defendant’s ability to present his defense at trial or at a suppression hearing. Moreover, exclusion of the defendant’s statement is the only remedy which will correct the wrong that has been done and ‘place the defendant in the same position he or she would have been in had the evidence been preserved and turned over in time for use at trial.’” (Harris, 678 P.2d at 413-14 (Singleton, J., concurring and dissenting) (emphasis added).)

    • Consequences of unexcused failure to record:


      “Thus, we conclude that exclusion is the appropriate remedy for an unexcused failure to electronically record an interrogation, when such recording is feasible. A general exclusionary rule is the only remedy that provides crystal clarity to law enforcement agencies, preserves judicial integrity, and adequately protects a suspect’s constitutional rights. The necessity for this strong remedy remains, even when we consider society’s interests in crime prevention and the apprehension of criminal offenders. Exclusion of reliable, yet unrecorded, statements will not occur frequently when compliance is widespread.

      * * *

      “Despite what we have said thus far, we recognize that nearly every rule must have its exception, and that exclusion of a defendant’s statements in certain instances would be wholly unreasonable. A violation of the Mallott rule does not, therefore, require exclusion of the defendant’s statements in all cases. Thus, the holding in this case does not bar the admission of statements obtained before a violation of the recording rule occurs. Where recording ceases for some impermissible reason, properly recorded statements made prior to the time recording stops may be admitted, even when the failure to record the balance of the interrogation is unexcused, since such prior statements could not be tainted by anything that occurred thereafter. Also, failure to record part of an interrogation does not bar the introduction of a defendant’s recorded statements, if the unrecorded portion of the interrogation is, by all accounts, innocuous. In such cases, there is no reason to exclude the defendant’s recorded statements, because no claim of material misconduct will be presented. See Rule 47(a), Alaska R. Crim. P. (errors which do not affect substantial rights shall be disregarded). For the same reason, a defendant’s unrecorded statement may be admitted if no testimony is presented that the statement is inaccurate or was obtained improperly, apart from violation of the Mallott rule.”  (Emphasis in original.)

       
    • Preservation: “[S]tate investigative agencies should have standard procedures for the preservation of evidence obtained during an investigation.” Stephan, 711 P.2d at 1159 n.10.

  • Other Alaska court cases: 

    • In Bright v. State, 826 P.2d 765, 773-74 (Alaska Ct. App. 1992), the defendant orally confessed during a custodial interrogation, but at trial it was revealed that a portion of the tape was missing, apparently recorded over by mistake; the trial judge found that the officers had acted in good faith. He prohibited the State from introducing testimony during its case in chief of what the defendant said during the entire (partially recorded) interview, and from using what the defendant said during the unrecorded portion for impeachment or in rebuttal. The Court of Appeals affirmed the conviction, finding these sanctions to be adequate, and also observing that the defendant did not claim any specific prejudice from the police failure to preserve the complete recording of his statement. To the same effect, Bodnar v. Anchorage, No. A-7763, 2001 WL 1477922 (Alaska Ct. App. Nov. 21, 2001) (tape failed to operate properly). 

    • In George v. State, 836 P.2d 960, 962 (Alaska Ct. App. 1992), officer Lower did not make a recording of defendant’s custodial interrogation because a functioning tape recorded was not available. The Court of Appeals said:

      “This fact excuses non-compliance with the Stephan rule. [Citation.] More importantly, Stephan does not prohibit admission of a defendant’s custodial statement ‘if no testimony is presented that the statement is inaccurate or was obtained improperly, apart from violation of the [taping] rule.’ [Citation.] On appeal, George does not contend that, apart from Lower’s failure to record the interview, there was any impropriety in his interview with Lower. Thus, George’s statements to Lower are admissible under Stephan.”

       
    • See also Butler v. State, No. A-7376, 2001 Alas. App. Lexis 84, at *12 (Alaska Ct. App. Apr. 25, 2001), in which an earlier recording of a custodial interrogation of Butler was not preserved, the Court of Appeals said, “Butler’s failure to allege any inaccuracy in the police investigator’s account of the [earlier] interview is fatal to Butler’s claim for relief.”

     

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Arizona

Updated: 7/1/2014 - Print the Arizona entry.

Statutes and Court Rules

Arizona has no statute or court rule relating to recording.

  • In 2000, the Attorney General appointed the State of Arizona Capital Case Commission, consisting of 15 members, charged with reviewing the capital punishment process in Arizona in its entirety to ensure that it works in a fair, timely and orderly manner.

    • The Commission filed its Final Report in 2001, which included the following with respect to electronic recording of custodial interrogations (§IV, page 22):

    “The Commission deliberated regarding the issue of electronic recording of police interrogations. Some states require audio or video recording of interrogations and confessions based on court decision or statute. While there was discussion as to whether the adoption of a recording requirement is best dealt with by voluntary action of law enforcement agencies, the Trial Issues Subcommittee concluded that routine electronic recording of all custodial interrogations and confessions would be a major improvement in criminal procedure and should be encouraged.

    “Upon recommendation of the Capital Case Commission, the Attorney General’s Office drafted a protocol that was considered and discussed by the Attorney General’s Law Enforcement Advisory Board, which represents police agencies across Arizona. The Advisory Board agreed to submit the protocol to the Arizona Criminal Justice Commission [ACJC] for consideration. The proposed protocol follows:

    ‘The Attorney General and the Capital Case Commission strongly recommend that law enforcement officers in Arizona record with audio tape or video tape the process of informing a suspect of his constitutional rights, the waiver of those rights by the suspect, and all questions and answers of that suspect during interrogation whenever feasible.

    ‘Under the protocol, if the questioning occurs in a place of detention such as a police department, a sheriff’s substation, or jail, the need for audio or video recording of the interrogation is even more pressing. However, even in these circumstances the discretion of the law enforcement officer is employed and recording should take place whenever feasible.’”

    • We have been informed by the Executive Director of the ACJC that there is no record of the protocol having been submitted by the Advisory Board to the ACJC during the period January 1, 2001 through November 2004.
     
  • In 2004, the Attorney General sent a written survey to Arizona law enforcement agencies to determine current procedures with regard to recording suspect interviews.  The introduction to the survey quotes the Board’s 2002 protocol.  Approximately half of Arizona law enforcement departments responded to the survey.  87% reported that all interrogations by detectives were audio recorded, while 10% said that all were not.  71% responded that they had no written rules and procedures regarding taping suspect interviews. 

  • In 2010, the Arizona Justice Project – a volunteer organization devoted to assisting in correcting errors and injustices in the criminal justice system – sent a survey to 40 Arizona law enforcement departments – less than half of the departments in Arizona – requesting information about their practices in recording custodial interrogations.  The results of this partial survey were mixed:  38% reported they record all, 40% record more than 75% of the time, and 18% record 50 to 75% of the time. 
     
  • In 2010 (HB 2327 and 2332) and 2011 (SB 1061), bills were introduced in the legislature requiring electronic recording of custodial interrogations of juveniles and homicide suspects.  None of the bills passed.
     
  • Commentary: The Attorney General's staff advises that they believe most law enforcement agencies in Arizona record custodial interrogations as recommended in the Attorney General's draft protocol described above. However, there is no official information available as to the recording practices followed in nearly half of Arizona's departments, to those that responded to the two surveys, many departments reported that they do not adhere to the draft protocol.
     
  • An Arizona court case:

    • In State v. Jones, 49 P.3d 273, 279 (Ariz. 2002), the  Supreme Court said:

    “We are, however, troubled by the fact that this reinitiated conversation was not recorded, while the interrogation that preceded it and the confession that followed were. The fact that the initial waiver was not taped subjected the state to unnecessary problems because it gives rise to suspicion. It would be a better practice to videotape the entire interrogation process, including advice of rights, waiver of rights, questioning, and confessions. This has been recommended by the Arizona Capital Case Commission and more recently by the Illinois Commission on Capital Punishment…. Recording the entire interrogation process provides the best evidence available and benefits all parties involved because, on the one hand, it protects against the admission of involuntary or invalid confessions, and on the other, it enables law enforcement agencies to establish that their tactics were proper.”

     
Arizona departments we have identified that currently record:
  • Apache Junction
  • Casa Grande
  • Chandler
  • Coconino CS
  • El Mirage
  • Flagstaff
  • Gila CS
  • Gilbert
  • Glendale
  • Marana
  • Maricopa CS
  • Mesa
  • Oro Valley
  • Payson
  • Peoria
  • Phoenix
  • Pima CS
  • Pinal CS
  • Prescott
  • San Luis
  • Scottsdale
  • Sierra Vista
  • Somerton
  • South Tuscson
  • State Dept of Corrections
  • Surprise
  • Tempe
  • Tuscson
  • Yavapai CS
  • Yuma
  • Yuma CS

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Arkansas

Updated: 4/9/2014 - Print the Arkansas entry.

Statutes and Court Rules

Arkansas has a 2012 Supreme Court rule relating to recording.

  • The rule was adopted in 2012, providing that whenever practical custodial interrogations of criminal suspects should be electronically recorded.  Following are the circumstances leading to the adoption of the rule, and a description of the rule.

    • In Clark v. State, 287 S.W.3d 567, 576 (2008), the Supreme Court, having rejected the defendant’s argument that she had a constitutional right to have the police make a complete electronic recording of her custodial interview, stated:

    “…we believe that the criminal-justice system will be better served if our supervisory authority is brought to bear on this issue. We therefore refer the practicability of adopting such a rule to the Committee on Criminal Practice for study and consideration.”

    • The Criminal Practice Committee Report. The Committee’s report to the Supreme Court in May 2011 recommended adoption of new Arkansas Rule of Criminal Procedure 4.7 regarding electronic recording of custodial interrogations.
       
    • The Supreme Court’s request for comments: In May 2011, the Supreme Court entered a Per Curiam order, 2011 Ark. 241, requesting comments on the proposed new Rule 4.7 rule to be submitted to the Court’s Clerk on or before July 1, 2011. Comments were submitted, and court took the matter under advisement.

      On June 22, 2012, the Supreme Court entered a Per Curiam Opinion, which recounts that the Committee on Criminal Practice made its proposal regarding recording of custodial interrogations, which was published for comment; that many comments were received; that the Court referred the matter back to the Committee for further study; that the Committee revised and resubmitted the proposed rule to the Court; that “the proposal does not mandate recording of all custodial interrogations; rather, it allows the trial court to consider the failure to record a statement in determining the admissibility of the statement.  We are in agreement with this approach, especially as a starting point. Accordingly, we adopt Rule 4.17, as set out below. The rule shall be effective September 1, 2012.”  (Emphasis added.)
     
  • Supreme Court Rule 4.17, “Recording Custodial Interrogations.”

    “(a) Whenever practical, a custodial interrogation at a jail, police station, or other similar place, should be electronically recorded.

    “(b) (1) In determining the admissibility of any custodial statement, the court may consider, together with all other relevant evidence and consistent with existing law, whether an electronic recording was made; if not, why not; and whether any recording is substantially accurate and not intentionally altered.

    “(2) The lack of a recording shall not be considered in determining the admissibility of a custodial statement in the following circumstances:”

    • Circumstances that excuse recording:  There follows six circumstances, including that making a recording “was not practical”; the suspect requests to respond “only if an electronic recording is not made”; and the “interrogation is conducted out-of-state.”
       
    • Recordings may be made by “audiotape or videotape, or digital recording,” and are to be preserved until any related convictions are “final and all direct and post-conviction proceedings are exhausted” or “prosecution for all offenses relating to the statement is barred by law” (c, d).
     

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California

Updated: 7/1/2014 - Print the California entry.

Statutes and Court Rules

California has a 2013 statute relating to recording, limited to custodial interrogations of juveniles in homicide investigations.

In 2013, a statute was enacted requiring that videotaped recordings must be made of custodial interrogations of juveniles suspected of homicide.  CAL Penal Code §859.5 and CAL. Welfare & INSTS. Code §626.8 (2013). 

The following findings and provisions are applicable through Section 859.5 of the Penal Code, and by incorporation into Section 626.8 of the Welfare and Institutions Code.

Findings: Section 1.  (a) The Legislature finds and declares the following:

"(1) According to a national study, false confessions extracted during police questioning of suspects have been identified as the second most frequent cause of a wrongful conviction. Although threats and coercion sometimes lead innocent people to confess, even the most standardized interrogations can result in a false confession or admission. Mentally ill or mentally disabled persons are particularly vulnerable, and some confess to crimes because they want to please authority figures or to protect another person. Additionally, innocent people may come to believe that they will receive a harsher sentence, or even the death penalty, unless they confess to the alleged crime.

"(2) Three injustices result from false confessions. First, a false confession can result in an innocent person being incarcerated. Second, when an innocent person is incarcerated, the criminal investigations end and the real perpetrator remains free to commit similar or potentially worse crimes. Third, victims’ families are subjected to double the trauma: the loss of, or injury occurring to, a loved one and the guilt over the conviction of an innocent person. Mandating electronic recording of custodial interrogations of both adults and juveniles will improve criminal investigation techniques, reduce the likelihood of wrongful convictions, and further the cause of justice in California.

"(3) Evidence of a defendant's alleged statement or confession is one of the most significant pieces of evidence in any criminal trial. Although confessions and admissions are the most accurate evidence used to solve countless crimes, they can also lead to wrongful convictions. When there is a complete recording of the entire interrogation that produced such a statement or confession, the factfinder can evaluate its precise contents and any alleged coercive influences that may have produced it.

"(b) For these reasons, it is the intent of the Legislature to require electronic recording of custodial interrogations of juveniles. Recording interrogations decreases wrongful convictions based on false confessions and enhances public confidence in the criminal process. Properly recorded interrogations provide the best evidence of the communications that occurred during an interrogation, prevent disputes about how an officer conducted himself or herself or treated a suspect during the course of an interrogation, prevent a defendant from lying about the account of events he or she originally provided to law enforcement, and spare judges and jurors the time necessary and the need to assess which account of an interrogation to believe."

General rule: Electronic recording by video shall be made of the entire custodial interrogation of a minor in a fixed place of detention who is suspected or accused of committing murder.  Sec. 859.5, 2(a) and (g)(4).

The electronic statement recorded as required creates a rebuttable presumption that the statement was given and was accurately recorded, and is otherwise admissible.  Sec. 2(a).

Exceptions: Recording is not required if the prosecution shows by clear and convincing evidence that electronic recording was not feasible owing to exigent circumstances, which shall be recorded in the police report; the person states he will speak only if the interrogation is not recorded, and if feasible that statement shall be recorded; the interrogation took place in another jurisdiction in compliance with the law of tat jurisdiction; the interrogation occurs when no law enforcement officer conducting the interrogation has knowledge that the person may have committed murder; an officer reasonably believes the recording will reveal the identity of a confidential informant or jeopardize the safety of the officer, the person being interrogated, or another person; the equipment malfunctioned and timely replacement or repair was not feasible.  Sec. 2(b)(c).

Unrecorded statements may be admitted into evidence if the court finds that the statement is admissible under applicable rules of evidence; and the prosecution proves by clear and convincing evidence that the statement was made voluntarily; and if feasible law enforcement personnel made a contemporaneous recording of the reason for not making a recording of the statements; and the prosecution shows by clear and convincing evidence that a statutory exception existed.  Sec.2(d).

Consequences of an unexcused failure to record:  All of the following remedies shall be granted as relief for noncompliance Sec. 3:  The unexcused failure to record shall be considered by the court in adjudicating motions to suppress the statement (1); the failure is admissible in support of claims that the statement was involuntary, or is unreliable (2);  the court shall instruct the jury with an instruction to be developed by the Judicial council that advises the jury to view with caution the statements made in the interrogation (3).  

Preservation:  The recording shall be maintained until a conviction is final and all direct and habeas corpus appeals are exhausted, or prosecution for the offense is barred by law.  Sec. 859.5(f).  In a juvenile court proceeding, the recording shall be preserved until the person is no longer subject to the jurisdiction of the juvenile court, unless the person is transferred to a court of criminal jurisdiction.  Sec. 626.8(b) of the Welfare and Institutions Code.

  • The California Commission on the Fair Administration of Justice, 2004-08.  The Commission was formed in 2004 pursuant to a resolution of the state Senate, to study the administration of criminal justice in California, and to make recommendation designed to ensure that the application and administration of criminal justice in California is just, fair and accurate. The members were persons from all sides of the criminal justice system. The Commission held public and private meetings, and rendered a series of interim reports for improvements in the California criminal justice system. The Commission ended its work with a final report in August 2008.

  • The Commission recommended that a statute be enacted requiring law enforcement agents to record custodial interrogations when interrogating persons suspected of committing serious felonies. The Commission report states:

“There are a number of reasons why the taping of interrogations actually benefits the police departments that require it. First, taping creates an objective, comprehensive record of the interrogation. Second, taping leads to the improved quality of interrogation, with a higher level of scrutiny that will deter police misconduct and improve the quality of interrogation practices. Third, taping provides the police protection against false claims of police misconduct. Finally, with taping, detectives, police managers, prosecutors, defense attorneys and judges are able to more easily detect false confessions and more easily prevent their admission into evidence.”

  • Pursuant to the Commission’s recommendation, the Assembly twice passed and sent to the Governor two different bills, one in 2006 and a revised bill in 2007, both requiring that law enforcement officers electronically record custodial interrogations of persons suspected of homicide or violent felonies. The Governor vetoed the 2006 bill (SB171) because it “does not specify what suspected means.”

  • The Commission then recommended a revised bill which contains a definition of the words “suspected of.” In February 2007, the revised bill was introduced in the Senate as SB 511,  which provides that any custodial interrogation that takes place in a fixed place of detention of a person suspected or accused of homicide or a violent felony as defined in the Penal Code “shall be electronically recorded in its entirety.” §2(a). The recording is to be by audio, although videotape is encouraged if the person is suspected or accused of homicide. §2(c)(2). The provision is inapplicable if the person agrees to speak only if not recorded; or if recording was not feasible, for example, recording equipment could not be obtained; the equipment malfunctioned; the equipment was inadvertently operated improperly; the interrogation took place in another jurisdiction in compliance with its law; or exigent circumstances existed which prevented the making of a recording. §§2(a)(2), 2(b)(1)-(7). Provisions are made for preservation of recordings. §2(a)(3).

  • Both the Senate and House passed SB 511, and sent it to the Governor, who vetoed the bill in October 2007.  The Governor’s 2007 veto messagereads in its entirety:

“I am returning SB 511 without my signature. While reducing the number of false confessions is a laudable goal, I cannot support a measure that would deny law enforcement the flexibility necessary to interrogate suspects in homicide and violent felony cases when the need to do so is not clear. Police interrogations are dynamic processes that require investigators to use acumen, skill and experience to determine which methods of interrogations are best for the situation. This bill would place unnecessary restrictions on police investigators.”

  • In 2012, SB 569 passed the Assembly and was sent to the Governor.  It requires electronic recording of custodial interrogations of juveniles suspected of homicide.

  • Commentary:

    • The reason the Governor gave for his veto in 2007 is neither correct nor appropriate. SB 511 would place no restrictions whatever on law enforcement officers conducting custodial interrogations. The bill contains exceptions that adequately excuse recordings, which have proven acceptable in the other states that have compulsory recording statutes and court rules.

      The Governor appears to be saying – although in carefully selected terms but which carry a clear implication and subtext – that some California law enforcement officers may use “methods of interrogation” during custodial interrogations that they do not want disclosed in contemporaneous recordings, and by logical extension in their written reports and courtroom testimony. This basis for rejecting recording legislation brings discredit on the Governor, and sullies the reputations of the many honorable California detectives and their supervisors. They are required to make accurate and complete written reports of what occurs during custodial interviews, and to give honest and complete courtroom testimony. They take a solemn oath to tell the truth, the whole truth, and nothing but the truth as to what was said and done during the closed-door sessions, including candid, unvarnished, accurate descriptions of the “methods of interrogation” they used. Those who file false official reports, or commit perjury, and those who encourage or participate knowingly in these practices, may violate the California Penal Code: §31- aid, abet, advise, encourage or command another’s crime; §118 - perjury; §118.1- false statements in peace officer’s crime reports; §127 - subornation of perjury.

      There is another sad side to the Governor’s vetoes. The large number of California police and sheriff departments (some named below) that currently record their custodial interrogations illustrates a widespread recognition on the part of California law enforcement of the value that results from adherence to the practice, with no restrictions placed upon their use of lawful, appropriate interrogation methods.
     
California departments we have identified that currently record:
  • Alameda CS
  • Arcadia
  • Auburn
  • Bishop
  • Butte CS
  • Carlsbad
  • Contra Costa CS
  • El Cajon
  • El Dorado CS
  • Escondido
  • Folsom
  • Grass Valley
  • Hayward
  • LaMesa
  • Livermore
  • Milpitas
  • Oceanside
  • Orange County Fire Authority
  • Orange CS
  • Placer CS
  • Pleasanton
  • Rocklin
  • Roseville
  • Sacramento CS
  • San Bernardino CS
  • San Diego
  • San Francisco
  • San Joaquin CS
  • San Jose
  • San Leandro
  • San Luis
  • Santa Clara
  • Santa Clara CS
  • Santa Cruz
  • Stockton
  • Sunnyvale DPS
  • Union City
  • Vallejo
  • Ventura CS
  • West Sacramento
  • Woodland
  • Yolo CS

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Colorado

Updated: 4/9/2014 - Print the Colorado entry.

Statutes and Court Rules

Colorado has no statute or courtrule relating to recording.

  • Colorado cases:

    • In People v. Raibon, 843 P.2d 46, 49 (Colo. 1992), the Court of Appeals, Division IV, said:

    “We recognize that the recording of an interview with either a suspect or a witness, either by audiotape or otherwise, may remove some questions that may later arise with respect to the contents of that interview. For that reason, it may well be better investigative practice to make such a precise record of any interview as the circumstances may permit. We decline, however, to mold our particular view of better practice into a constitutional mandate which would restrict the actions of law enforcement agents in all cases.”

    Dissenting, Judge Jean E. Dubofsky said (843 P.2d at 52-53):

    “In my view, the Due Process Clause of the Colorado Constitution requires that if, as here, a suspect is detained and questioned at a police station or similar detention place, then an electronic recording (or other comparably accurate recording process) of the conversation must be made or else the confession is inadmissible.

    * * *

    “… Even a few hours after hearing a conversation, it is difficult for a person to present precise and accurate testimony about those recent statements. Therefore, testimony about confessions/interrogatories made in court weeks or months afterwards is inevitably incomplete and at least partially inaccurate.

    * * *

    “… The present technology exists to record readily and accurately by both video and sound tapes the statements of witnesses and suspects.

    * * *

    “Furthermore, by confirming the content, legality, and voluntariness of a confession, a recording will, in many cases, actually aid law enforcement officers. In many situations, a recorded confession and advisement and waiver of constitutional rights will deter a defendant from changing his testimony or making false claims that his constitutional rights were violated. Certainly, such a recording will help the trial and appellate courts determine the truth and thus make more just decisions.

    * * *

    “… Furthermore, the court system is entitled to receive the best evidence available in order to resolve the serious criminal matters which come before it. A logical consequence of these principles is the need for the consistent systematic recording of all interviews conducted by police of a detained suspect.

    “Moreover, the concept of Due Process is not static. See Stephan v. State, supra. Due Process must change to accommodate ideas of what is necessary to provide fundamental fairness to a criminal defendant. In order to do this, the law must change to keep pace with new scientific and technological developments.”

    • In People v. Broder, 222 P.3d 323 (Colo. 2010). The Supreme Court held that a videotape of an interrogation of a fellow police officer showed that the officer did not make an unambiguous request for a lawyer, therefore the statement he made was admissible in his trial for attempted sexual assault.
     
Colorado departments we have identified that currently record:
  • Arvada
  • Aurora
  • Boulder
  • Brighton
  • Broomfield
  • Colorado Springs
  • Commerce City
  • Cortez
  • Denver
  • El Paso CS
  • Ft. Collins
  • Lakewood
  • Larimer CS
  • Logan CS
  • Loveland
  • Montezuma CS
  • SOuth Ute Gaming Div.
  • Sterling
  • Thorton

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Connecticut

Updated: 4/9/2014 - Print the Connecticut entry.

Statutes and Court Rules
  • Connecticut has a 2011 statute relating to recording, which provides for audiovisual recording to begin on January 1, 2014.  Conn. Gen. Stat. §54-1 enacted July 2011.

    • General rule: Custodial interrogations in a place of detention of persons under investigation for or accused of a capital or class A or B felony are to be recorded by an audiovisual recording made by use of an electronic or digital audiovisual device. §1(a) (b).
    • Exceptions: Electronic recording was not feasible; a voluntary statement that has a bearing on the credibility of the person; a spontaneous statement not made in response to a question; the person requests prior to making the statement that an electronic recording not be made, and the request is electronically recorded; an interrogation conducted out of state; any other statement that may be admissible under law. The State has the burden of proof by a preponderance of the evidence that an exception is applicable. §1(e)(f)(g).
    • Consequences of unexcused failure to record:  

    “If the court finds by a preponderance of the evidence that a person was subjected to a custodial interrogation in violation of this section, then any statements made by the person during or following that non-recorded custodial interrogation, even if otherwise in compliance with this section, are presumed to be inadmissible in any criminal proceeding against the person, except for purposes of impeachment.” §1(5)(d).

    “The presumption of inadmissibility may be overcome by a preponderance of the evidence that the statement was voluntarily given and is reliable, based on the totality of the circumstances.”  §1(8)(h).

    • Preservation: Recordings to be preserved until the conviction is final and all direct and habeas corpus appeals are exhausted, or prosecution is barred by law. §1(c).
    • Establishment of Standards and Training: The Chief State’s Attorney, in conjunction with the Police Officer Standards and Training Council and a representative of the CT Police Chiefs Association, shall not later than January 1, 2012, establish standards for the equipment to be used, and for the training of law enforcement personnel in the operation of the equipment. §2.
  • Connecticut court cases:

    • In State v. James, 678 A.2d 1338, 1360 (Conn. 1996), the majority, while declining to impose a recording requirement under the state constitution, stated:

    “…we agree with the defendant that the recording of confessions and interrogations generally might be a desirable investigative practice, which is to be encouraged…”

     

Dissenting, Justice Robert I. Berdon wrote (678 A.2d at 1364-65):

“In my view, as a matter of public policy the police should, from the time a citizen is first taken into the police station for investigative purposes, whether voluntarily or involuntarily, electronically record all that transpires with respect to the person as long as he or she is there. Such a procedure would benefit the police by dispelling any claims of coercion with respect to confessions and admissions obtained from the accused. Equally important, the suspect and the public would perceive that justice had been done. Lacking such independent verification, it strains credulity that the defendant would voluntarily go to the police station at 1:30 a.m. at the ‘invitation’ of the police and voluntarily remain there for fourteen hours. We cannot ignore as judges what we know as men and women.”

  • In State v. Lockhart, 4 A.3d 1176, 1205, 1210, 1212, 1219 (Conn. 2010), Justice Richard N. Palmer, while concurring that failure to record was not reversible error, wrote:

“I disagree with the majority’s refusal to exercise this court’s inherent supervisory authority over the administration of justice to establish a rule that, whenever reasonably feasible, police station interrogations of suspects shall be recorded electronically. The reasons favoring such a recording requirement are truly compelling, whereas the arguments against it are wholly unpersuasive. Indeed, each and every substantive argument that the state and the majority raise against a recording requirement has been discredited by the experience of those police departments, in this state and across the country, that record interrogations as a matter of policy. Contrary to the majority’s assertion that a rule requiring the recording of interrogations ‘could . . . have negative repercussions for the administration of justice’; footnote 17 of the majority opinion; there is no question that such a rule would promote the fair and impartial administration of justice in this state. Simply put, in this day and age, there is no legitimate justification to refuse to adopt the requirement under this court’s supervisory powers...

“The value in recording interrogations is so obvious as to require little discussion. When a confession is memorialized in such a matter, the fact finder need not rely exclusively, or even primarily, on the recollections and testimony of those present at the interrogation in order to determine precisely what occurred when the confession allegedly was obtained. …In all cases, a recording of the interrogation provides the fact finder with an objectively accurate picture of what transpired during the questioning, thereby greatly enhancing the fact finder’s ability to evaluate the voluntariness and validity of the confession. For that reason alone, the value of recording interrogations is immeasurable.

* * *

“The majority’s first assertion, namely, that the issue presented is not sufficiently serious to warrant this court’s use of its supervisory powers, cannot withstand even the most cursory examination. Indeed, I submit that there are few issues of greater importance to the perceived fairness and integrity of our criminal justice system than the voluntariness and reliability of confessions.

* * *

“Of course, recordings do not protect only the accused. ‘[A] recording also protects the public’s interest in honest and effective law enforcement, and the individual interests of those police officers wrongfully accused of improper tactics. A recording, in many cases, will aid law enforcement efforts, by confirming the content and the voluntariness of a confession, when a defendant changes his testimony or claims falsely that his constitutional rights were violated.’ (Stephan v. State, supra, 711 P.2d at 1161; see also Gasper v. State, 833 N.E.2d 1036, 1041 (Ind. Ct. App. 2005)).

* * *

“… Thus, as one practitioner with particular expertise in the field has explained, ‘[o]f the hundreds of experienced detectives to whom we have spoken who have given custodial recording a fair try, we have yet to speak to one who wants to revert to non-recording. They enthusiastically endorse the practice. The words they use vary, but their reasons are so repetitious they seem rehearsed. Over and over we have been told that recordings protect officers from claims of misconduct, and practically eliminate motions to suppress based on alleged police use of overbearing, unlawful tactics; remove the need for testimony about what was said and done during interviews; allow officers to concentrate on the suspects’ responses without the distraction of note taking; permit fellow officers to view interviews by remote hookup and [to] make suggestions to those conducting the interview; disclose previously overlooked clues and leads during later viewings; protect suspects who are innocent; make strong, often invincible cases against guilty suspects who confess or make guilty admissions by act or conduct; [and] increase guilty pleas…(Thomas Sullivan, The Time Has Come for Law Enforcement Recordings of Custodial Interviews, Start to Finish, 37 Golden Gate U.L.Rev. 175, 178-79 (2006).)

* * *

“. . . Among those who participated in this state’s recent recording pilot program, 100 percent reported that the use of recording equipment did not interfere in any way with their questioning of suspects or the outcome of interrogations.

“Finally even if there were some factual or experiential basis for the majority’s assertion that a recording requirement might inhibit police with respect to the techniques they use in obtaining confessions, ‘[t]his is an unacceptable objection. . . . [L]aw enforcement personnel [are expected] to give complete and truthful testimony, including candid descriptions of what occurred during custodial interrogations. Surely [it is] not suggest[ed] [that police] should be free to modify or omit facts when testifying under oath about what happened during unrecorded interviews.’” T. Sullivan, Center on Wrongful Convictions, supra, pp. at 22-23.

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Delaware

Updated: 4/30/2014 - Print the Delaware entry.

Statutes and Court Rules

Delaware has no statute or court rule relating to recording.

Departments we have identified that currently record:
  1. New Castle City
  2. New Castle County
  3. State Police

 

 

 

 

 

    

    

 

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District of Columbia

Updated: 4/9/2014 - Print the District of Columbia entry.

Statutes and Court Rules

The District of Columbia has a 2006 statute relating to recording.

    • The statute requires electronic recordings of custodial interviews of persons suspected of crimes of violence.  D.C. Code §§5-116.01-03 (2006).

    • General rule: The Metropolitan Police Department (MPD) shall electronically record, in their entirety, and to the greatest extent feasible, custodial interrogations of persons suspected of committing a crime of violence, when the interrogation takes place in MPD interview rooms equipped with electronic recording equipment. Recordings shall commence with the first contact between the suspect and law enforcement personnel once the suspect has been placed within the interview room, and shall include all subsequent contacts between the suspect and law enforcement personnel in the interview room. The recording shall include the giving of any warnings required by law, the response of the suspect, and the consent of the suspect, if any, to the interrogation. §5-116.01(a).

    • Exceptions: If the suspect announces that he/she will speak with law enforcement personnel only if the interrogation not be further recorded, the remainder of the interrogation need not be recorded. Law enforcement personnel shall not expressly or implicitly encourage the suspect to give conditional consent in lieu of a completely recorded interrogation. §5-116.01(b)-(c).

    • Consequences of unexcused failure to record: Any statement of a person accused of a criminal offense in the D.C. Superior Court obtained in violation of §5-116.01 shall be subject to the rebuttable presumption that it is not voluntary. The presumption may be overcome if the prosecution proves by clear and convincing evidence that the statement was voluntarily given. §5-116.03.

    • Miscellany: The Chief of the MPD may issue a General Order establishing additional procedures, not inconsistent with the statute. §5-116.02.

    • Preservation: None given.

    • The District of Columbia Metropolitan Police Department General Order 16, effective February 2006.

      Statement of purposes: The purposes of recording custodial interrogation conducted in MPD interview rooms equipped with electronic recording equipment are to create an exact record of what occurred; provide evidence of criminal culpability; document the suspect’s physical condition and demeanor; refute allegations of police distortion, coercion, misconduct, or misinterpretations; reduce the time to memorialize the interrogation; reduce the time to litigate suppression motions; enable the interviewer to focus completely on his/her questions and the suspect’s answers without the necessity of taking notes; and enable the investigator/detective to more effectively use the information obtained to advance other investigative efforts. §I.

      General rule: The MPD policy repeats the D.C. statutory language requiring recording of interrogations of persons suspected of committing crimes of violence, and provides that the policy applies also to “other crimes as listed in this directive.” §II. Crimes of violence are listed in §III-2, and additional offenses that require electronic recording are listed in §IV-B,C. Custodial interrogations are to be conducted by detectives/investigators, in an MPD interview room, and shall be video and audio recorded. §IV-E,F,I.

      The suspect’s consent to recording is not necessary. Interviewers shall not encourage a suspect to request that the recording equipment be turned off. §IV-O. The suspect is to be seated so that his/her face is visible on camera, and if possible the interviewer’s face should also be visible. §V-C-3. Provisions are made for non-English speaking and hearing-impaired suspects and juveniles. §V-D,E. Approval of audio recordings are provided for in §§IV-K-3 and V-H-2.

      Exceptions: If the equipment malfunctions or is inadvertently not turned on, or for some other reasons the recording cannot be made, the circumstances shall immediately be reported to the SDD Watch Commander, and documented in WACIIS. Each failure to electronically record a custodial interrogation due to equipment failure shall be explained and documented in a report to the Assistant Chief, Operational Support Command. §IV-L,M.

      If the video/audio recording equipment fails to operate properly before, or during, a recorded custodial interrogation, the individual may be transported to the nearest location equipped to handle video/audio recordings. §V-B.

      If the subject states that he/she will voluntarily speak with law enforcement personnel only if the custodial interrogation is not electronically recorded, then the recording equipment shall be turned off. The interviewer will record the subject making this request in order to document that the request was made. §IV-O.

      Preservation: “The detective who conducted the interview shall retain one copy for the case file, and provide the original and all other copies to a supervisor. The recording(s) shall be considered evidence, and shall be subject to all MPD policies, directives, and regulations pertaining to the storage and handling of evidence as outlined in General Order 601.1….” §V-6.
  • District of Columbia cases: 

    • In re D. W., 989 A.2d 196 (D.C. 2010), a15 year old mildly retarded male was questioned in the Youth Division regarding alleged sexual abuse of an 11 year old female. Following a bench trial and conviction, the D.C. Court of Appeals affirmed, holding that the defendant had knowingly and voluntarily waived his Miranda rights.  The Court said, “Especially in light of the [trial] court’s opportunity to view the video recording, we discern no basis to disturb the court’s conclusion that D. W. gave a valid waiver of Miranda rights.” (989 A.2d at 204.)
    • In Napper v. United States, 22 A.2d 758 (D.C. 2011), during a videotaped recorded interview in a police station, the officers left murder suspect alone in the room, and he made a cell phone call in which he made damaging admissions, while attempting to hide his phone from the video camera.  On appeal from a conviction for first degree murder, the D.C. Court of Appeals affirmed, ruling that the suspect-defendant had no expectation of privacy in the interview room, and his secretive behavior evidenced his knowledge that he was being recorded.
  • Public statement by a veteran detective in the D.C. Metropolitan Police Department, James Trainum: 

“I’ve been a police officer for 25 years, and I never understood why someone would admit to a crime she didn’t commit.  Until I secured a false confession in a murder case….I used standard interrogation techniques – no screaming or threats, no physical abuse, no 12-hour sessions without food or water.  Many hours later, I left with a solid confession.…At first, the suspect couldn’t tell us anything about the murder, and she professed her innocence.  As the interrogation progressed, she became more cooperative, and her confession included many details of the crime….Confident in our evidence and the confession, we charged her with first-degree murder. Then we discovered that the suspect had an ironclad alibi….the case was dismissed, but we all still believed she was involved in the murder.  After all, she had confessed….

“…we had videotaped the interrogation in its entirety.  Reviewing the tapes many years later, I saw we had fallen into a classic trap.  We ignored evidence that our suspect might not have been guilty, and during the interrogation fed her details of the crime that she repeated back to us in her confession. If we hadn’t discovered and verified her alibi – or if we hadn’t recorded the interrogation, she probably would have been convicted of first-degree murder and would be in prison today….

“Videotaping interrogations is proved to decrease wrongful convictions based on false confessions.  When the entire interrogation is recorded, attorneys, judges and juries can see exactly what led o a confession. …The only police officers I’ve met who don’t embrace recording interrogations are those who have never done it.  Too many police officers still wrongly believe that recording interrogations will be logistically difficult and expensive, and that guilty suspects won’t confess if they knew they are being recorded.”  Los Angeles Times, October 28, 2008.  See also http://www.thisamericanlife.org/radio-archives/episode/507/confessions?act=1 

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Florida

Updated: 5/5/2014 - Print the Florida entry.

Statutes and Court Rules

Florida has no statute or court rule relating to recordings.

  • In July 2010, the Supreme Court entered an Administrative Order establishing the Florida Innocence Commission “to conduct a comprehensive study of the causes of wrongful convictions and of measures to prevent such convictions.” The Commission has held a number of hearings and heard from witnesses.

    • On June 25, 2012, the Commission filed its Final Report with the Supreme Court.Relating to electronic recording of custodial interrogations, the Report stated:

    The Commission voted 12 to 7 “to recommend to the Florida Legislature that a statute under the Florida Evidence Code be enacted making it clear that law enforcement shall record suspect statements during a covered custodial interrogation,” and that “there should be an accompanying criminal jury instruction modeled after the New Jersey instruction” (page 38).

    • Appendices to the Report contain Standards for electronic recording of custodial interrogations (App. J); a letter to the President of the Florida Senate and the Speaker of the House of representatives (App. K); the proposed recording legislation (App. L); and a proposed jury instruction on failure to electronically record suspect statement (App. M), which the committee proposed the court forward to its “Committee on Standard Jury Instructions in Criminal Cases for its review and possible submission to the Court via a petition” (pp. 38-39).

    • In 2012, the Commission Chair wrote the President of the Senate and Speaker of the House, providing them with the Commission's recommendation, and copies of the proposed statute and jury instruction. The recommended statute provides that interrogations of persons arrested for “covered offenses” that occur in a place of detention must be electronically recorded in their entirety by audio or video, unless the questioning takes place under circumstances in which an electronic recording is impracticable or law enforcement has other good cause. Covered offenses are felonies specified in the bill.  Covert recordings may be made. Recordings shall be preserved until all legal proceedings are ended.  Failure to record as provided shall be a factor for consideration by the trial court in determining the admissibility of any statement made by the suspect, and by the jury in determining whether the statement was made, and if so what weight if any to give to the statement. In the absence of an electronic recording as required, the court shall provide the jury with a cautionary instruction. 

    • The recommended statute has not been introduced in the Florida legislature.
        
  • Commentary:

    The recording statute proposed by the Commission was opposed by some representatives of law enforcement.  It is relevant to contrast the Florida statute relating to the right of law enforcement officers during hearings that could lead to disciplinary action, suspension, demotion, or dismissal (Fla. Stat., §112.532(1)(g)):

“The formal interrogation of a law enforcement officer or correctional officer, including all recess periods, must be recorded on audio tape, or otherwise preserved in a manner to allow a transcript to be prepared, and there shall be no unrecorded questions or statements.”

  • Florida court cases.

    • In Smith v. State, 548 So. 2d 673 (Fla. Dist. Ct. App. 1987), the Court summarily affirmed a conviction without opinion. Concurring, Judge Hugh S. Glickstein quoted extensively from the opinion of the Supreme Court of Alaska in Stephan v. State, (discussed above) “…in order that we could share it with those reading this opinion – particularly in light of the officer’s testimony in this case.” The officer’s testimony was given in answer to the question, “And what did Mr. Smith exactly say, as best as you can recall?” The officer responded (548 So.2d at 673):

    “Well, as best as I can recall, I can’t recall. I can refer to the police report, and the police report is written in quotes where he said, ‘Sure.’ However, I cannot put myself back at the station that day and remember that he said ‘sure.’”

    • In State v. Sawyer, 561 So. 2d 278, 280 (Fla. Dist. Ct. App. 1990), the Court said:

    “In considering the admissibility of Sawyer’s admissions and confessions, the trial court not only had before it numerous witnesses who testified to the circumstances under which the confession was obtained, but the court also reviewed tape recordings of the actual sixteen-hour interrogation session. We wish to commend the Clearwater Police Department in its practice of maintaining a record of interrogations through the use of tape recording and express hope that this policy will continue. We also recommend this practice to all other law enforcement agencies so that challenges to future confessions can be exposed to the light of truth.”

    • A man and wife were murdered in their home in October 2006 in Masaryktown, Hernando County.  During the investigation by the sheriff’s office, two detectives interviewed the 18-year old great nephew of the deceased couple, who was 16 at the time of the killings.  A videotape of the interrogation showed the detectives badgering, accusing and threatening, for over 12 hours.  The boy was charged with the murders, and jailed for the next 20 days in the department of Juvenile Justice in Ocala.  Then a DNA match linked another person to the crime, and the nephew was released; eventually, the murder charges were expunged. After the actual killer was charged and convicted, an Assistant State’s Attorney said, “The bottom line is that the statement [the nephew] gave was not free and voluntary.”  http://www2.tbo.com/news/2011/jul/15/building-a-false-confession-ar-243948/ 
     
Departments we have identified that currently record:
  • Bradford CS
  • Broward CS
  • Cape Coral
  • Carrabelle
  • Clay CS
  • Clearwater
  • Collier CS
  • Coral Springs
  • Davie
  • Daytona Beach
  • Escambia CS
  • FL Attorney Genera, Tallahassee Div.
  • FL Highway Patrol
  • FL Inspector General (Dept of Financial Services)
  • Ft. Lauderdale
  • Ft. Myers
  • Gainesville
  • Hallandale Beach
  • Hialeah
  • Hollywood
  • Key West
  • Kissimmee
  • Lake Wales
  • Lee CS
  • Leon CS
  • Manatee CS
  • Margate
  • Miami
  • Miami-Dade County
  • Midway
  • Miramar
  • Monroe CS
  • Monticello
  • Mount Dora
  • Naples
  • Okaloosa CS
  • Orange CS
  • Orlando
  • Osceola CS
  • Palatka
  • Palm Beach
  • Palm Beach CS
  • Pembroke Pines
  • Pensacola
  • Pinellas CS
  • Port Orange
  • St. Lucie CS
  • St. Petersburg
  • Sanibel
  • Sarasota CS
  • Seminole CS
  • Sunrise
  • Tallahassee
  • Valparaiso
  • Walton CS
  • West Palm Beach

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Georgia

Updated: 4/30/2014 - Print the Georgia entry.

Statutes and Court rules

Georgia has no statute or court rule relating to recording.

Departments we have identified that currently record:
  • Atlanta
  • Centerville
  • Cobb County
  • DeKalb County
  • Fulton County
  • Gwinnett County
  • Houston CS
  • Macon
  • Perry
  • Savannah-Chatham
  • Warner Robins

 

 

 

 

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Hawaii

Updated: 7/1/2014 - Print the Hawaii entry.

Statutes and Court Rules

Hawaii has no statute or court rule relating to recording. However, four departments - Hawaii County PD, Honolulu PD, Kauai County PD, and Maui County PD - have jurisdiction over the islands which contain all of Hawaii's population. We have been told by knowledgeable officials of each of these departments that, for a varying number of years, each has made it a practice to record custodial interrogations of persons suspected of serious crimes. Honolulu and Maui have written regulations on the subject.

Hawaii Supreme Court cases:
  • In State v. Kekona, 886 P.2d 740, 746 (Haw. 1994), the Supreme Court said:

    “Undeniably, recording a custodial interrogation is important in many contexts. A recording would be helpful to         both the suspect and the police by obviating the ‘swearing contest’ which too often arises when an accused maintains that she asserted her constitutional right to remain silent or requested an attorney and the police testify to the contrary. A recording would also ‘help to demonstrate the voluntariness of the confession, the context in which a particular statement was made and of course, the actual content of the statement.’ Williams, 522 So.2d at 208. Consequently, although we decline to interpret the due process clause of the Hawaiˋi Constitution as requiring that all custodial interrogations be recorded, we nevertheless stress the importance of utilizing tape recordings during custodial interrogations when feasible.”

    Dissenting, Justice Steven H. Levinson wrote a lengthy opinion explaining why the Court should adopt the rule of the Alaska Supreme Court in Stephan v. Scales, 711 P.2d 1156, discussed above. He said (886 P.2d at 747-48, 752):

“… Despite the fact that ‘recording equipment was readily available’ at the La-haina police station on October 31, 1991, majority opinion at 4, Detectives Endo and Blair inexplicably failed to preserve Kekona’s statement to them verbatim. Thus, our ability to determine on review whether the circuit court’s FOFs [Findings of Fact] that ‘[Kekona] . . . never invoked his right to silence’ (FOF No. 6), ‘[n]o coercion, threats . . ., or improper inducements were utilized to elicit [Kekona’s] statement’ (FOF No. 8), and ‘[Kekona] at no time during the interrogation process . . . invoke[d] his right to terminate questioning’ (FOF No. 10) are clearly erroneous has been severely hampered. Or stated more aptly, the informational vacuum created by the lack of a verbatim rendition of Kekona’s interrogation substantially diminishes the reliability of an examination of ‘“the entire record and . . . an independent determination of the ultimate issue of voluntariness’ based upon . . . ‘the totality of the circumstances surrounding [the defendant’s] statement.”’ [Citing State v. Kelekolio, 849 P.2d 58, 69 (Haw. 1993)]

“And yet, had the investigating detectives merely pressed the ‘record’ button of the ‘readily available’ recording equipment, the record before us would reflect—to an objective certainty—whether, in the course of questioning, Kekona in fact declared that ‘I no like talk’ and whether Detective Endo thereafter represented to Kekona ‘that he knew various members of Kekona’s family well,’ majority opinion at 404, 886 P.2d at 741, and that ‘if [Kekona] did not talk, [Kekona] would end up like his brother.’ Id. at 404, 886 P.2d at 741….”

* * *

“Although there are undoubtedly cases where the testimony on one side or the other is intentionally false, dishonesty is not our main concern. Human memory is often faulty - people forget specific facts, or reconstruct and interpret past events differently.

* * *

“I can think of no possible justification as to why, given the dangers and potential abuses so thoroughly explored in Stephan, the police should be permitted to engage in unrecorded custodial interrogations when recording is otherwise feasible. I submit that the majority has been unable to think of any justification either. If I am correct, then there is everything to gain and nothing to lose by adopting the Stephan rule prospectively. That is precisely what makes the majority opinion so baffling to me, especially in the face of the majority’s acknowledgment of ‘the importance of utilizing tape recordings during custodial interrogations when feasible.’ Majority opinion at 409, 886 P.2d at 746.”

  • In State v. Crail, 35 P.3d 197, 206 (Haw. 2001), the Supreme Court said:

“This court has recognized that ‘having an electronic recording of all custodial interrogations would undoubtedly assist the trier of fact in ascertaining the truth.’ Kekona, 77 Haw. at 412, 886 P.2d at 749. Such a recording ‘would be helpful to both the suspect and the police by obviating the “swearing contest” which too often arises.’ (Id. at 409, 886 P.2d at 746.) Thus, in such situations, [a] “recording would also help to demonstrate the voluntariness of the confession, the context in which a particular statement was made and of course, the actual content of the statement.’ (Id.)”

Departments we have identified that currently record:
  • Hawaii County
  • Honolulu
  • Kauai County
  • Maui County

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Idaho

Updated: 4/9/2014 - Print the Idaho entry.

Statutes and Court Rules

Idaho has no statute or court rule relating to recording.

Departments we have identified that currently record:
  • Ada CS
  • Blaine CS
  • Boise City
  • Boise CS
  • Bonneville CS
  • Caldwell
  • Canyon CS
  • Cassia CS
  • Coeur d' Alene
  • Dept Fish & Games
  • Garden City
  • Gooding CS
  • Gooding
  • Hailey
  • ID Falls
  • Jerome
  • Jerome CS
  • Ketchum
  • Lincoln CS
  • Meridian
  • Nampa
  • Pocatello
  • Post Falls
  • State Dept of Corr.
  • State Police
  • Twin Falls

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Illinois

Updated: 4/9/2014 - Print the Illinois entry.

Statutes and Court Rules

Illinois has 2002, 2005 and 2013 statutes relating to recording.  The chronology is as follows:

  • 2000-2002:  The Illinois Governor’s Commission on Capital Punishment.

    In 2000, the Governor formed the Commission, with the mission of studying and making recommendations as to how the Illinois capital punishment system could be made more fair, equitable and just.  In its April 2002 Report, the Commission recommended electronic recording of custodial interviews of homicide suspects, the crime for which capital punishment was a potential sentence under Illinois law.

    The accompanying text contains examples of unrecorded “confessions” which were later determined to be untrue, and “academic literature...replete with descriptions of confessions that were obtained under circumstances that provide significant doubt as to their accuracy.” The text describes videotaping as “the very best evidence of what went on in the interrogation room – which will enable law enforcement agencies to establish interrogation tactics did not include physical coercion or undue influence.” The majority also recommended that if videotaping was not practical, a tape recording should be made of the interrogation. (Rec. 6, p. 29.) The Commission also recommended that the Illinois Eavesdropping Act be amended to permit law enforcement personnel to electronically record without the knowledge or consent of the suspect. (Rec. 7, pp. 29-30.)

  • In 2003, a statute was enacted requiring recording of custodial interviews of homicide suspects effective in July 2005.  This was the first state statute mandating custodial interrogations be recorded.  705 ILCS 405/5-401.5 (juveniles) and 725 ILCS 5/103-2.1 (adults).

  • The statute was amended in 2005 to require recording of custodial interrogations of suspects of vehicular homicide.  725 ILCS 5/103-2.1(b).

  • In 2013, the statute was amended to require recording of custodial interrogations of suspects of various serious felonies, to be phased in over a period of three years (705 ILCS 401.5(b-5) (juveniles), and 725 ILCS 103-2.1(b-5)(adults)).  The crimes added are:

    2014: Predatory criminal assault of a child, and aggravated arson.

    2015: Aggravated kidnapping, aggravated vehicular kidnapping, and home invasion.

    2016: Aggravated criminal sexual assault, armed robbery, and aggravated battery based on use of a firearm.

    • General rule: Custodial interrogations relating to specified felonies conducted at a place of detention shall be electronically recorded by motion picture, audiotape, videotape, or digital recording. §5/103-2.1(a)(b).

    • Exceptions: Nothing precludes the admission of unrecorded statements taken when electronic recording was not feasible; that constitute a voluntary statement that has a bearing on the credibility of the accused as a witness; if the suspect requests, prior to making the statement, to respond only if an electronic recording is not made, and a recording is made of the request; if the interrogation is conducted outside Illinois; or if the officers were unaware of facts and circumstances that would create probable cause to believe that the accused committed an offense required to be recorded.  The state has the burden of proving by a preponderance of the evidence that one of the exceptions is applicable. §5/103-2.1(e).

    • ..Consequences of unexcused failure to record: If the court finds by a preponderance of the evidence that the defendant was subjected to a custodial interrogation in violation of §5/103-2.1(b), any statements made by the defendant during or following that interrogation, even if otherwise in compliance with §5/103-2.1, are presumed to be inadmissible in any criminal proceeding against the defendant, except for purposes of impeachment. §5/103-2.1(b), (d).

    • The presumption of inadmissibility may be overcome by a preponderance of the evidence that the statement was voluntarily given and is reliable, based on the totality of the circumstances. §5/103-2.1(f).

    • Nothing in this section precludes admission of a statement, otherwise inadmissible under this section, that is used for impeachment and not as substantive evidence. §5/103-2.1(e).

    • Preservation: “Every electronic recording required under this Section must be preserved until such time as the defendant's conviction for any offense relating to the statement is final and all direct and habeas corpus appeals are exhausted, or the prosecution of such offenses is barred by law.” §5/103-2.1(c).

    • Miscellany: The Illinois Eavesdropping Act was amended to provide that, when questioning suspects under the foregoing provisions, officers do not have to advise suspects that they are being electronically recorded. 720 ILCS §5/14-3(k).
     
  • Illinois court rulings.

    • In People v. Quevedo, 932 N.E.2d 642, 652 (Ill. App.  2010), based upon a videotaped interrogation, the Illinois Appellate Court ruled that the defendant voluntarily waived his right to have an appointed attorney present during the interview. See also, to the same effect, People v. Polk, 942 N.E.2d 347 (Ill. App. 2011).

    • In People v. Kladis, 960 N.E.2d 1104, 1110 (Ill. 2011), the Illinois Supreme Court said:

    “Since [1974], the use of video recordings as evidence at trial has become a common practice to allow a defendant the opportunity to present an effective defense and to further the truth-seeking process. We recently reaffirmed the general admissibility of such evidence (People v. Taylor, 956 N.E.2d 431), and courts across the country are increasingly relying on video recordings to present an objective view of the facts in a case. See, e.g., Scott v. Harris, 550 U.S. 372 (2007) (relying on a squad car video recording, Supreme Court reversed lower court’s denial of summary judgment on claim against the officer for the use of excessive force; Court found that a videotape capturing the events in question clearly contradicted the version of the story told by the driver and adopted by the court of appeals, and stated that the court of appeals should have viewed the facts in the light depicted by the videotape); United States v. Prokupek, 632 F.3d 460 (8th Cir. 2011) (reversing the district court’s denial of the defendant’s motion to suppress on the basis that the officer’s testimony at the suppression hearing was clearly contradicted by his contemporaneous statements captured on the squad-car video recording).

    • People v. Rivera, 962 N.E.2d 53 (Ill. App. 2011), provides an example of an unrecorded written confession taken in 1992, which the reviewing court found to be unreliable and insufficient to provide support for a murder conviction.  He has been released after serving 20 years in prison.

    • People v. Harper, 969 N.E.2d 573 (Ill. App. 2012), the Appellate Court discussed the concluding provision of the Illinois statute, which provides, “The presumption of inadmissibility of a statement made by a suspect at a custodial interrogation at a police station may be overcome by a preponderance of the evidence that the statement was voluntarily given and is reliable, based on the totality of the circumstances.” 725 ILCS 5/103-2.1(f).

    • Harris v. Thompson, 698F.3d 609 (7th Cir. 2012).  A jury in an Illinois state court convicted Ms. Harris of murdering her four year old son, conviction affirmed, 904 N.E.2d 1077 (Ill.  App. 2009), leave to appeal to the IL Supreme Court denied.  Harris’ federal habeas corpus petition denied by the District Court, 2011 WL 6257143 (N.D. Ill., 2011).  The 7th Circuit Court of Appeals reversed  and remanded to the state court for a new trial, based upon prejudicial exclusion of a defense eyewitness.  As to Harris’ videotaped confession, the Court found that “the jury had reasons to question its reliability, too – reasons in line with leading research on false confessions.” The Court called attention to the length of the interrogation, “stretching over 27 hours” of “a mother who had just lost her son, she was under stress and stricken with grief,” who “did not have an attorney during this questioning,” and whose “initial, unwarned confession was inconsistent with the physical evidence…Only in later confessions (and after many more hours of interrogations) did she correct this curious discrepancy” relating to how the child’s death occurred.  (698 F.3d at 631). The State’s Attorney declined to re-prosecute Ms. Harris, and she has been released after serving over seven years in prison. 

    • In People v. Koh, No. 09-CR 9151, Circuit Court of Cook County, Criminal, Division (2012), the defendant was charged with first degree murder of his son.  The defendant was not proficient in English.  During a lengthy videotaped interrogation, he made statements which the prosecution claimed amounted to a confession.  After hearing the testimony of the detective, and viewing the videotape, the jury quickly acquitted the defendant. He was released after serving several years in prison awaiting trial.

    • People v. Travis, 985 N.E.2d 1019 (Ill. App. Ct. 2013).  Following a bench trial, Travis was convicted of first degree murder.  On appeal, the Appellate Court reversed and remanded for a new trial, holding that the recorded interview during which Travis confessed was involuntarily given, owing to the absence of a juvenile officer during the questioning of the 15 year old suspect, and the detective’s “misleading promises of leniency.”  (985 N.E.2d at 1034.)
     

Overview Page|States Map 

Indiana

Updated: 4/11/2014 - Print the Indiana entry.

Statutes and Court Rules

Indiana has a 2009 Supreme Court rule relating to recording.

  • In September 2009, under the Supreme Court’s “inherent authority to supervise the administration of all courts of this state,” the court added Indiana Rule of Evidence 617 - Unrecorded Statements During Custodial Interrogation.  The Court stated that it “finds that the interests of justice and sound judicial administration will be served by the adoption of a new Rule of Evidence to require electronic audio-video recordings of customary custodial interrogation of suspects in felony cases as a prerequisite for the admission of evidence of any statements made during such interrogation.”

    • General rule: All custodial interrogations conducted in a place of detention must be electronically recorded when the person being interrogated is charged with specified felonies. Electronic Recording is defined as “an audio-video recording that includes at least not only the visible images of the person being interviewed but also the voices of said person and the interrogating officers.” §(a) “The Electronic Recording must be a complete, authentic, accurate, unaltered, and continuous record of a Custodial Interrogation.” §(c)

    • Exceptions: Recording is excused if the suspect agreed to respond only if the interview was not recorded; the officers inadvertently failed to operate the equipment properly; the equipment malfunctioned; the officers reasonably believed the crime under investigation was not a felony; substantial exigent circumstances existed which prevented or made it not feasible to make a recording. §(a)(1)-(7).

    • Consequences of unexcused failure to record: “In a felony criminal presentation, evidence of a statement made by a person during a Custodial Interrogation in a Place of Detention shall not be admitted against the person unless an Electronic Recording of the statement was made, preserved, and is available at trial, except upon clear and convincing proof” that an exception is applicable. §(a).

    • Preservation: None given.
     
  • An earlier Indiana Court of Appeals opinion:

    • The Court of Appeals stated in Stoker v. State, 692 N.E.2d 1386, 1390 (Ct. App.1998):

      “Nevertheless, although we impose no legal obligation, we discern few instances in which law enforcement officers would be justified in failing to record custodial interrogations in places of detention. Disputes regarding the circumstances of an interrogation would be minimized, in that a tape recording preserves undisturbed that which the mind may forget.”

     

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Iowa

Updated: 7/1/2014 - Print the Iowa entry.

Statutes and Court Rules

Iowa has a 2006 court ruling that relates to but does not explicitly require recording: State v. Hajtic, 724 N.W.2d 449 (Iowa 2006).

  • In the Hajtic case, the Supreme Court held that a videotape of the defendant’s custodial interview demonstrated that he voluntarily waived his Miranda rights and knowingly confessed to the crime of burglary.  The Court added (724 N.W.2d at 454):

“We are aided in our de novo review of this case by a complete videotape and audiotape of the Miranda proceedings and the interrogation that followed. The videotape shows the officer with his side or back to the camera and Hajtic facing the officer and the camera. Hajtic’s sister sat about an arms’ length to his right. Their mother and Hajtic’s six-year-old brother sat behind them in the interrogation room. The officer read out loud a Miranda waiver form, and Hajtic read it for himself. Hajtic said he understood his rights and that he had no questions. He signed the waiver form, which stated that he could ‘read and understand the English language.’ His ability to understand English was confirmed by the videotape of the Miranda proceedings and the questioning that followed. He showed no reluctance to ask questions if he did not understand. When the officer asked a question confusing to Hajtic, he asked the officer to clarify it, and the officer did so. For the most part, however, the officer’s questions were answered responsively and without any reliance for interpretation by his sister. In fact, during the interview, Hajtic appeared almost oblivious to his sister’s presence. Judging by Hajtic’s actions and responses to the questions, he clearly understood the questions asked.

“This case illustrates the value of electronic recording, particularly videotaping, of custodial interrogations….”

The Court discussed the rulings of the Supreme Courts of Alaska and Minnesota which require electronic recording of custodial interrogations, and the American Bar Association resolution urging “all law enforcement agencies to videotape the entirety of custodial interrogations of crime suspects…or, where videotaping is impractical, to audiotape the entirety of such custodial interrogations,” and legislatures and courts to enact laws or rules requiring this practice (ABA Report to the House of Delegates, set forth in Part 4 below). The Court said (724 N.W.2d at 456): 

“We believe electronic recording, particularly videotaping, of custodial interrogations should be encouraged, and we take this opportunity to do so. In this case, the videotape of Hajtic’s confession and the Miranda warnings that preceded it clearly show that he understood the Miranda warnings given to him and the questions asked. Further, there is no indication the officer made improper promises or threats….”

  • In 2007, the Iowa Attorney General wrote in the State Police Association’s publication: “Although the court [in Hajtic] stated that it is ‘encouraging’ the practice of electronic recording, the attorney general’s office believes that the Hajtic decision should be interpreted as essentially requiring this practice.” (T. Miller, Cautions Regarding Custodial Issues, 39 Iowa Police J. 1, 15 (2007).)
  • The Iowa Department of Public Safety (DPS) issued a statewide directive, Identifier DOM 23-02-15, to all sworn officers of the State Police, effective January 11, 2007, as a proactive response to State v. Hajtic, which provides (General Order 07-27):

"The purpose of this directive is to establish guidelines and procedures for the electronic recording of custodial interrogations conducted in detention facilities and all [DPS] occupied buildings, including Division of the Iowa State Patrol (ISP) District Offices, and Division of Criminal Investigations (DCI), Division of Narcotics Enforcement (DNE), and Division of State Fire Marshal (SFM) field offices."

"III. Policy. It is the policy of this Department to require the electronic recording of all custodial interrogations conducted by its officers in detention facilities and all [DPS] occupied buildings, when feasible, in order to meet the recommendations set forth by the [Supreme] Court of Iowa. Such electronic recordings facilitate the judicial review process of evaluating the integrity, admissibility and content of conversations between suspects and officers by creating a comprehensive, unbiased and impartial evidentiary record of the interrogation process. This directive does not create statutory or constitutional rights, and the Department does not imply that exclusion of evidence is a remedy for any deviation from the purpose of this document.” 

"V. Procedure. A. General Requirements. Officers shall electronically record in their entirety custodial interrogations conducted in detention facilities and buildings occupied by the [DPS]. This includes off-site or other law enforcement agency-controlled buildings or task force offices. Video and audio recording is preferred. Audio-only recording is acceptable when video capabilities are unavailable." (Emphasis in original.)

  • In April, 2009, the DPS issued a second General Order Identifier 01-02.06, Order No. 09-44, relating to “Electronic Recording of Custodial Interrogations,” which reiterates that "Officers will video or audio" record custodial interrogations as defined in DOM 23-02.15. (Part IV.C.g and E.1.4.c.)

  • Neither the 2007 nor the 2009 General Orders of the Department of Public Safety are directed to or have a binding effect upon local police and sheriff departments.

  • In 2009, the Iowa State Bar Association (ISBA) held a meeting of stakeholders, including representatives of major law enforcement agencies, at which it was agreed that the ISBA Criminal Law Section Council would survey law enforcement agencies to assess policies, practices, and capabilities related to recording, using the assistance of law students from the University of Iowa.  The survey was made of 421 law enforcement agencies.  The results, published in December 2011, showed that responses were received from about half (201) of the 421 agencies contacted (using rounded percentages): 50% record all custodial interrogations; 40% do not require that any custodial interrogations be recorded, but instead leave the decision to the discretion of the interrogating officer; and 10% record interrogations of suspects of felonies that are specified by the local department; no information was obtained as to the crimes specified.

  • In May 2013, the Executive Director of the Iowa County Attorneys Association stated that his organization does not know which departments record and which do not.

    In January 2014, an electronic recording bill was introduced in the Iowa House as HSB 572. This bill, with some alterations and additions, is based on the Uniform Electronic Recordation of Custodial Interrogations Act, promulgated by the National Conference of Commissioners on Uniform State laws, discussed in Part 5 below. This bill failed to get out of committee.

Commentary:  

The Attorney General’s 2007 published article about the Hajtic case does not have a binding effect on any of the law enforcement agencies in Iowa. He encourages, but does not order, recording of custodial interrogations.

The Department of Public Safety, which issued the 2007 and 2009 General Orders, has control over state law enforcement agencies and officers. The DPS orders do not make provisions for consequences if departments either do not adopt the policies, or adopt them in part, or fail to follow whatever policy is adopted. Hence they amount to no more than recommendations, not mandates, thus leaving it to each department within the Department of Public Safety to determine whether to adopt recording policies, which to adopt, and if adopted the crimes to which the policies will apply.

The DPS does not have control over local police and sheriff departments. The surveys described above reveal that there is no official information as to the practices of over half of Iowa's local departments, and half of those that responded to the most recent survey acknowledged they do not record custodial interrogations as recommended by the Attorney General.

A post-Hajtic Iowa Supreme Court opinion: 

People v. Madsen, 813 N.W.2d 714 (Iowa 2012):

 “We reiterate our admonition in Hajtic encouraging videotaping of custodial interrogations.  Since Hajtic was decided, ‘the use of video recordings as evidence at trial has become a common practice…to further the truth-seeking process.’ [citing People v. Kladis, 960 N.E.2d 1104, 1110, Ill. App. 2011] (also recognizing that videotape ‘objectively document[s] what takes place by capturing the conduct and words of both parties.’)  We also encourage electronic recording of noncustodial interviews when it is practical to do so.” 

Departments we have identified that currently record:
  • Altoona
  • Ames
  • Ankeny
  • Arnolds Park
  • Benton CS
  • Bettendorf
  • Burlington
  • Cedar Rapids
  • Clarion
  • Clay CS
  • Colfax
  • Council Bluffs
  • Davenport
  • Des Moines
  • Des Moines CS
  • Fayette CS
  • Hancock CS
  • Iowa City
  • Iowa DPS
  • Johnson CS
  • Kossuth CS
  • Linn CS
  • Marion
  • Marshalltown
  • Mason City
  • Merrill
  • Missouri Valley
  • Muscatine
  • Nevada
  • Orange City
  • Parkersburg
  • Polk CS
  • Pottawattamie CS
  • Rock Valley
  • Sioux City
  • Storm Lake
  • Vinton
  • Washington CS
  • Waterloo
  • Waverly
  • West Burlington
  • Woodbury CS

Overview Page|States Map 

Kansas

Updated: 4/11/2014 - Print the Kansas entry.

Statutes and Court Rules

Kansas has no statute or court rule relating to recording. 

Departments we have identified that currently record:
  • A.G. Medical Fraud
  • Derby
  • Junction City
  • Kansas Dept. of Corr.
  • Kansas Univ.
  • Lenexa
  • Liberal
  • Newton
  • Olathe
  • Ottawa
  • Riley County
  • Saline CS
  • Sedgwick
  • Sedgwick CS
  • Shawnee CS
  • State Bur. Invtgn.
  • Topeka
  • Wichita

Overview Page|States Map 

Kentucky

Updated: 5/5/2014 - Print the Kentucky entry.

Statutes and Court Rules

Kentucky has no statute or court rule relating to recording.

Departments we have identified that currently record:
  • Elizabethtown
  • Hardin CS
  • Jeffersontown
  • Louisville
  • Louisville Metro
  • Oldham CS
  • St. Matthews

 

 

 

 

 


Overview Page|States Map 

Louisiana

Updated: 4/11/2014 - Print the Louisiana entry.

Statutes and Court Rules

Louisiana has no statute or court rule relating to recording.

  • In a development that received national publicity, the New Orleans Police Department entered into a consent decree to end a lawsuit filed by the United States Department of Justice, which among many other reforms, provides (par. 164):

    “All custodial interrogations that take place in a police facility, and all interrogations that involve suspected homicides or sexual assaults, shall be video and audio recorded. All recorded interrogations shall be recorded in their entirety.”

     
  • Commentary.  This is an ironic penalty for the DOJ to impose, because, as pointed out in Part 3 below, its investigative agencies (ATF, DEA and FBI) have come under increasing judicial criticism because they are not required to record custodial interrogations, and indeed are thought to discourage recording in favor of making handwritten notes later reduced to typewritten reports.
Departments we have identified that currently record:
  • Lafayette City
  • Lake Charles
  • Oak Grove
  • New Orleans
  • Plaquemines Paris CS
  • St. Tammany Parish CS

Overview Page|States Map 

Maine

Updated: 4/11/2014 - Print the Maine entry.

Statutes and Court Rules

Maine has a 2004 statute relating to recording.

  • The statute requires all departments to adopt written policies regarding the recording of custodial interrogations of persons suspected of specified “serious crimes.”   The Criminal Justice Academy is given supervisory authority to assure compliance.  ME Rev. Stat. Ann., title 25, §2803-B(1)(K).

    The statute provides:

    “1. All law enforcement agencies shall adopt written policies regarding procedures to deal with the following …

    “K. Digital, electronic, audio, video or other recording of law enforcement interviews of suspects in serious crimes and the preservation of investigative notes and records in such cases.”

    “2. The board [of Trustees of the Maine Criminal Justice Academy] shall establish minimum standards for each law enforcement policy…; policies for the recording and preservation of interviews of suspects in serious crimes under subsection 1, paragraph K, must be established no later than June 1, 2005 …”

    “3. The chief administrative officer of each law enforcement agency shall certify to the board…that the agency has adopted written policies consistent with the minimum standards established by the board pursuant to subsection 2…; certification to the board for the adoption of a policy for the recording and preservation of interviews of suspects in serious crimes under subsection 1, paragraph K, must be made to the board no later than June 1, 2005…The chief administrative officer of each agency must certify to the board…that the agency has provided orientation and training with respect to expanded policies…; certification for orientation and training with respect to policies regarding the recording and preservation of interviews of suspects in serious crimes under subsection 1, paragraph K must be made to the board no later than January 1, 2006…”

    “5. The board shall review annually the minimum standards for each policy to determine whether changes in any of the standards are necessary to incorporate improved procedures identified by critiquing known actual events or by reviewing new law enforcement practices demonstrated to reduce crime, increase officer safety or increase public safety.”

    “6. Procedure regarding the preservation of notes, records and recordings…“7. A requirement that an officer of the agency record a custodial interrogation when conducted at a place of detention when the interrogation relates to a serious crime.

    “8. The requirement to record a custodial interrogation does not apply to [situations set forth in the statute].”

     
  • Title 25, §2803C provides that an agency that fails to comply with these provisions –

    ‘…commits a civil violation for which the State or local government entity whose officer or employee committed the Violation may be adjudged a fine not to exceed $500.”

     
  • In March 2006, the Maine Criminal Justice Authority issued Minimum Standards for “Recording of law enforcement interviews of suspects in serious crimes and the preservation of investigative notes and records in such cases policy.” These standards require each agency to have a written policy to address recording of suspects in serious crimes, and reservation of records, to include at a minimum “a policy statement that recognizes the importance of recording custodial interrogations of persons involved in serious crimes when such interrogations are conducted in a place of detention; definition of recording that encompasses digital, electronic, audio, video or other recording; definitions of custodial interrogations, detention, and serious crimes; provisions regarding preservation of records; “a requirement that an officer of the agency record a custodial interrogation when conducted at a place of detention when the interrogation relates to a serious crime”; and the statutory exemptions.

    • From time to time, the Maine State Police and the Maine Chiefs of Police Association adopted general orders designed to carry the statutory provisions into effect. On August 18, 2011, the Chiefs of Police Association adopted General Order M-11, which in all material respects is the same as the Criminal Justice Authority Order 1-7 of January 11, 2012, discussed below, except for the provision that “This General Order is for use of the Maine State Police and not for any other agency.”
  • On January 11, 2012, the Maine Criminal Justice Authority adopted Mandatory Policy Number 1-7, regarding Recording of Suspects in Serious Crimes & the Preservation of Notes & Records. The Mandatory Policy contains the following Advisory:

    “This Maine Chiefs of Police Association model policy is a generic policy provided to assist your agency in the development of your own policies. All policies mandated by statute contained herein meet the standards as prescribed by the Board of Trustees of the Maine Criminal Justice Academy. The Chief Law Enforcement Officer is highly encouraged to use and/or modify this model policy in whatever way it would best accomplish the individual mission of the agency.”

    The Mandatory Policy provides:

    I. Policy. “This agency recognizes the importance of recording custodial interrogations related to serious crimes when they are conducted in a place of detention. A recorded custodial interrogation creates compelling evidence. A recording aids law enforcement efforts by confirming the content and the voluntariness of a confession, particularly when a person changes his testimony or falsely claims that his or her constitutional rights were violated. Confessions are important in that they often lead to convictions in cases that would otherwise be difficult to prosecute. Recording custodial interrogations is an important safeguard, and helps to protect a person’s right to counsel, the right against self-incrimination and, ultimately, the right to a fair trial. Finally, a recording of a custodial interrogation undeniably assists the trier of fact in ascertaining the truth.

    “Given that this is a statutorily mandated policy, officers must abide by this agency’s policy as it applies to all standards of the Maine Criminal Justice Academy Board of Trustees.”

    II. Purpose. “To establish guidelines and procedures for law enforcement officers (LEO’s) of this agency regarding the recording of certain custodial interrogations of persons and preservation of these recordings and the notes and other records related to the recordings.”

    III. Definitions. The Order defines Custodial Interrogation, Recording (“audio, video or other recording”), Place of Detention, and Serious Crimes:

    “Serious Crimes:  Means Murder, and all Class A, B and C offenses listed in Chapters 9, 11, 12, 13 and 27 of the Maine Criminal Code and the corresponding juvenile offense.  Excluded are Class D and E crimes in the applicable chapters that are increased to a felony crime by virtue of 17-A MRSA §1252”

    IV. Procedure. “D. Unless exempted by this policy, a recording shall be made of any custodial interrogation conducted by an LEO of this agency at a place of detention when the interrogation relates to any of the serious crimes listed in this policy.”

    Section IV E contains provisions for preservation of recordings and notes. Section IV G contains the exemptions to the recording requirement.

  • The Director of the Maine Criminal Justice Academy wrote in June 2012:

    “In Maine, each law enforcement agency must adopt a policy that meets all minimum standards outlined above that are approved by the MCJA Board of Trustees. However, an extremely high percentage of LE agencies adopt the Maine Chiefs Model Policy verbatim because they do not want to reinvent the wheel ‘so to speak.’ A committee made up of chiefs and sheriffs write the model policies which are then reviewed by someone in the AG’s office before final adoption by the Maine Chiefs Board of Directors. Each agency must attest that it has one in place and must send me a copy. Maine LE agencies are 100% compliant.”

     

Overview Page|States Map 

Maryland

Updated: 5/2/2014 - Print the Maryland entry.

Statutes and Court Rules

Maryland has a 2008 statute relating to recording.

  • The statute provides (MD. Code Ann., Crim. Proc. §§2-402-403):

    Ҥ2-402. Public policy. It is the public policy of the State that:

    “(1) a law enforcement unit that regularly utilizes one or more interrogation rooms capable of creating audiovisual recordings of custodial interrogations shall make reasonable efforts to create an audiovisual recording of a custodial interrogation of a criminal suspect in connection with a case involving murder, rape, sexual offense in the first degree, or sexual offense in the second degree, whenever possible, and

    “(2) a law enforcement unit that does not regularly utilize one or more interrogation rooms capable of creating audiovisual recordings of custodial interrogations shall make reasonable efforts to create an audio recording of a custodial interrogation of a criminal suspect in connection with a case involving murder, rape, sexual offense in the first degree, or sexual offense in the second degree, whenever possible.”

    §2-403. “An audio or video recording made by a law enforcement unit of a custodial interrogation of a criminal suspect is exempt from the Maryland Wiretapping and Electronic Surveillance Act.

    §2-404. “Report. On or before December 31, 2009, and annually thereafter, the Governor’s Office of Crime Control and Prevention shall report to the House Judiciary Committee and the Senate Judicial Proceedings Committee, in accordance with §2-1246 of the State Government article on the progress of jurisdictions and the Department of State Police in establishing rooms capable of creating audiovisual recordings of custodial interrogations.”

     

The statute contains no provisions for exceptions to the recording requirement, nor consequences for unexcused failures to record, or for preservation of recordings that are made.

  • At the same time, the legislature enacted Section 2, chs. 359 and 360, providing in part that “the Governor’s Office of Crime Control and Prevention [GOCCP] shall:…(2)  develop a program to assist State and local law enforcement agencies in funding the establishment and operation of interrogation rooms capable of creating audiovisual recordings of custodial interrogations; and (3) monitor and report during State meetings on the progress of jurisdictions and the Department of State Police in establishing interrogation rooms capable of creating audiovisual recordings of custodial interrogations.”

    • The GOCCP has filed annual reports with the legislature each December 2009. The December 2013 report states that of the 131 agencies in the state, 63 agencies have at least one interrogation room containing both audio and video recording capability. Therefore:

      * Under §2-402(1), each of those 63 agencies is required whenever possible to make reasonable efforts to create audiovisual recordings of custodial interrogations of criminal suspects in cases involving murder, rape, sexual offense in the first degree, or sexual offense in the second degree.

      * Under §2-402(2), each of the other 68 agencies is required whenever possible to make reasonable efforts to create audio recordings of custodial interrogations of criminal suspects in connection with cases involving murder, rape, sexual offense in the first degree, or sexual offense in the second degree.

     
  • A Maryland Supreme Court case:

    In Wimbish v. State, 29 A.3d 635, 646 (Md. Ct. Spec. App. 2011), the trial court denied the defendant’s motion to suppress his custodial statements after reviewing a videotape made of the interview.  The Court of Special Appeals affirmed, based upon its independent review of the recording, saying: “We agree with the circuit court’s finding that, here, appellant did not make an unequivocal statement expressing a desire to have a lawyer present.”

     

Overview Page|States Map 

Massachusetts

Updated: 7/1/2014 - Print the Massachusetts entry.

Statutes and Court Rules

Massachusetts has a Supreme Judicial Court ruling that relates to but does not require custodial recording: Commonwealth v. DiGiambattista, 813 N.E.2d 516 (Mass. 2004).

  • In the DiGiambattista case, the Court declined to require law enforcement officials to electronically record custodial interviews under the Court’s supervisory powers or the state Constitution, but added, “this court has repeatedly recognized the many benefits that flow from recording of interrogations,” and that “we are not, however, satisfied with preservation of the status quo, which amounts only to repeated pronouncements from the court about the potential benefits of recording interrogations.” The Court went on to say (813 N.E.2d at 529, 532-35.)

    “We believe that a defendant whose interrogation has not been reliably preserved by means of a complete electronic recording should be entitled, on request, to a cautionary instruction concerning the use of such evidence.

    “Thus, when the prosecution introduces evidence of a defendant’s confession or statement that is the product of a custodial interrogation … and there is not at least an audio-tape recording of the complete interrogation, the defendant is entitled (on request) to a jury instruction advising that the State’s highest court has expressed a preference that such interrogations be recorded whenever practicable, and cautioning the jury that, because of the absence of any recording of the interrogation in the case before them, they should weigh evidence of the defendant’s alleged statement with great caution and care. Where voluntariness is a live issue and the humane practice instruction is given [see Mass. Criminal Model Jury Instruction No. 3.560], the jury should also be advised that the absence of a recording permits (but does not compel) them to conclude that the Commonwealth has failed to prove voluntariness beyond a reasonable doubt.

    “…the instruction aptly focuses the jury’s attention on the fact that the Commonwealth has failed to present them with evidence of the ‘totality’ of the circumstances, but has instead presented that with (at best) an abbreviated summary of those circumstances and the interrogating officers’ recollections of the highlights of those circumstances. Jurors should use great caution when trying to assess the ‘totality of the circumstances’ when they have before them only a highly selective sliver of those circumstances, and they may properly decide that, in the absence of that ‘totality,’ they cannot conclude that the defendant’s statement was voluntary.

    “…It is of course permissible for the prosecution to address any reasons or justifications that would explain why no recording was made, leaving it to the jury to assess what weight they should give to the lack of a recording. The mere presence of such reasons or justifications, however, does not obviate the need for the cautionary instruction.

    “As is all too often the case, the lack of any recording has resulted in the expenditure of significant judicial resources…all in an attempt to reconstruct what transpired during several hours of interrogation conducted [months or years beforehand] and to perform an analysis of the constitutional ramifications of that incomplete reconstruction.”

     
  • In September 2006, the Attorney General and District Attorneys Association issued a Justice Initiative Report, which states in part:

    “Law enforcement officers shall, whenever it is practical and with the suspect’s knowledge, electronically record all custodial interrogations of suspects and interrogations of suspects conducted in places of detention.”

     
  • The same month, the Chiefs of Police Association, District Attorneys Association, and State Police distributed to all state law enforcement agencies “Sample Policy and Procedure” (No. 2.17), containing the Report of the Justice Initiative: Recommendations of the MA Attorney General and District Attorneys to Improve the Investigation and Prosecution of cases in the Criminal Justice System. The Sample Policy and Procedure states in part:

    “It is the policy of the [police] department [instituting the policy], to electronically record all custodial interrogations of suspects or interrogations of suspects conducted in places of detention whenever practical.”

     
  • In April 2007, an article was published in Lawyer’s Weekly, entitled Tale of the Tape: Recorded Interrogations Level the Playing Field, Despite Initial Fears, by N. Schaffer, which contains the following quotations from several experienced Massachusetts law enforcement personnel and defense lawyers:

    • Hampden County District Attorney, concerning his adverse reaction to the DiGiambattista ruling:

      “I felt that to record all the statements would result in a number of defendants refusing to give statements. They might be willing to speak to the police, but they’d be hesitant and reluctant to be recorded. I was wrong.”

       
    • Berkshire County District Attorney:

      Police departments that were reluctant at first are now pleased that claims of improperly obtained confessions can be proven false by turning on a tape. He says police “have long been annoyed” by claims of misconduct during the interview process. “Having the recorded statement has proved very effective at trial. It eliminates the suggestions that the police aren’t telling the truth, that [the defendant] never said it, or that there are other circumstances under which the statement was given. It has made a big difference in our ability to get a number of convictions, because it gives a lot of credibility to the prosecution of the case, and it in the defendant’s own words.” He has seen a decrease in motions to suppress being allowed. When recorded evidence results in a motion or verdict for the defense, his department often uses the video as an opportunity “for training.”

       
    • General Counsel of the MA Chiefs of Police Association:

      “We were worried at the beginning that [suspects] would shut up and not confess it they were being recorded. Before there were a lot of bogus claims. Now, when someone claims that they were surrounded by four officers standing over them and that the door was bolted, you can look at the video and see that they were being questioned by one person sitting behind a desk.”

       
    • Essex County District Attorney:

      “[Taping custodial interviews] has shown judges and juries that the police are good at what they do. It has improved the quality of justice.”

       
    • Westchester defense lawyer from Worchester:

       “[Taping] helps everyone get to the bottom of important issues in cases. When the police have done their job and observed the Constitution, it’s a boon to the prosecution. And when they haven’t, it levels the playing field for the defendant.”

       
    • A Boston defense lawyer:

      Taping statements helps motions to suppress “because you’ll have some real evidence about whether the police complied with Miranda warnings” and whether the defendant truly volunteered the information.

             
     
  • On October 1, 2008, the President of the Boston Bar Association (BBA) appointed a Task Force to Prevent Wrongful Convictions, in order to study the problem of wrongful convictions, and to make recommendations to reduce the number of wrongful convictions. The Task Force’s Report includes a chapter on Interviews of Suspects and Witnesses (pages 28-47), which contains the following recommendations:

    “1. All law enforcement agencies should video-record the entirety of all custodial interrogations of suspects in serious felony cases commonly prosecuted in Superior Court, unless strong countervailing considerations make such recording impractical or the suspect refuses to be recorded.

     

* * *

“4. The Massachusetts Legislature should be encouraged to create a fund allowing all state and municipal police departments to apply for grants to purchase video equipment.”

  • In February 2010, the MA District Attorneys issued a White Paper on Public Safety and Criminal Justice Policy, which contains the following statement relating to recommendation 1 of the BBA Task Force (pages 6-7):

    “Having seen the benefits of the DiGiambattista ruling over the last six years, we agree that video recording poses significant benefits to both the accuracy of the investigation and the persuasiveness of the evidence at trial, and accordingly endorse this BBA recommendation.”

         At my request, in January 2014, the third vice president of the Chiefs Association distributed a survey to all 360 chiefs statewide, requesting information about their practices and experiences with electronic recording of custodial interrogations in their departments. Of the 100 responses received, almost all responded that they make recordings of custodial interrogations of felony suspects except those that object, and virtually all reported positive experiences. They were not asked to describe the crimes that trigger recording, the factors that excuse recording, and related matters. No responses were received from the other more than 250 departments.
  • Commentary; We have been advised by a representative of the Chiefs of Police Association that state law enforcement authorities believe the directives have been very effective, and that electronic recording of custodial interviews is widespread throughout the state. However as noted above there is no official information available as to the details of the recording practices of the 100 departments that responded to the recent survey, and as to the remaining 250-plus departments, there is no official information whatsoever as to their compliance with the Supreme Judicial Court's admonition in the DiGiambattista case, the Justice Initiative Report, or the Attorney General's recommendations. 

Massachusetts cases: 

  • In Commonwealth v. Kee, 870 N.E.2d 57, 65 n.9 (Mass. 2007), the Court said:

    “Commonwealth v. DiGiambattista . . . cited by the defendant in a footnote, is inapposite. There, we held that, where the Commonwealth presents evidence of a defendant's confession without introducing an electronic recording of the interrogation, the defendant is entitled, upon request, to a cautionary instruction. However, while the requirement was created pursuant to our supervisory powers only, that case has its genesis in the constitutional privilege against self-incrimination, see Fifth Amendment to the United States Constitution, and art. 12 of the Massachusetts Declaration of Rights. The considerations relevant to a missing evidence instruction, by contrast, do not implicate the privilege against self-incrimination.”

     
    • In Commonwealth v. Francis, 891 N.E.2d 717 (Mass. App.  2008) , the court said:

      “DiGiambattista . . . does not require the judge to ‘point out to the jury that the party with the burden of proof has, for whatever reason, decided not to preserve evidence of that interrogation in a more reliable form, and to tell them that they may consider that fact as part of their assessment of the less reliable form of evidence that the Commonwealth has opted to present.’ Defendant's brief at 29.”

       
    • Commonwealth v. Barbosa, 933 N.E.2d 93,117 (Mass. 2010):

      “We agree that the judge erred in giving only the second part of the requested instruction. DiGiambattista is clear that, where the defendant requests the instruction, the judge must tell the jury both that (1) the State's highest court prefers that custodial interrogations be tape recorded, whenever practicable, and (2) where there is not at least an audiotape recording of the complete interrogation, the jury should weigh the defendant's statements with great caution and care. We do not consider the first part of this instruction to be extraneous.”

       
    • Commonwealth v. Drummond, 925 N.E.2d 34, 38 (Mass. App. Ct. 2010):

      “Particular reasons why an interrogation was not recorded are for the jury to weigh when they consider, after hearing the instruction, evidence of what the Commonwealth contends the defendant said to police. As the court [in DiGiambattista] explained, ‘it is of course permissible for the prosecution to address any reasons or justifications that would explain why no recording was made, leaving it to the jury to assess what weight they should give to the lack of a recording. The mere presence of such reasons or justifications, however, does not obviate the need for the cautionary instruction.’ The judge's limiting language ignored this clear directive and stripped the instruction of at least some of its force.  As given, the instruction was incorrect.”

       
    • In Commonwealth v. Troung, 28 Mass. L. Rep. 223(2011),the trial judge relied upon audio and video recordings of custodial interviews of a 16 year old girl. The judge found that the interviews were undertaken without affording her an opportunity to consult with her mother, that the girl did not give a valid waiver of her Miranda rights, and that her statements to the police officers were not voluntary. The trial judge said:

      “When, as here, there exists a combination of trickery and implied promises, together with Nga’s young age, lack of experience and sophistication, her emotional state, as well as the aggressive nature of the interrogation, the totality of the circumstances suggests a situation potentially coercive to the point of making an innocent person confess to a crime. [Citing case.] When such a situation exists, the Commonwealth has failed to meet its burden of establishing beyond a reasonable doubt that Nga’s statement was voluntary and the statement must be suppressed. [Citing DiGiambattista.]”

       
    • In Commonwealth v. Hoyt, 958 N.E.2d 834, 838 (Mass. 2011), during a recorded interview, a rape suspect said, “I’d like an attorney present.  I mean I can’t afford one.  So I guess I’ll speak to you now.  I don’t have an attorney.”  The trial court ruled that the suspect’s later incriminating statements were admissible because he had not made an unequivocal invocation of his right to counsel.  On appeal from a conviction, the Supreme Judicial Court reversed, based upon a review of the video tape, which the court held established that the defendant did unequivocally request a lawyer, hence his incriminating statements were inadmissible.

    • In Commonwealth v. Baye, 967 N.E.2d 1120 (Mass. 2012), a videotape was made of the interrogation of a lengthy interrogation of an arson suspect.  Following indictment, the trial court denied the defendant’s  motion to suppress incriminatory statements he had made during the interview.  On interlocutory appeal, the Supreme Judicial Court, having analyzed the videotape, reversed the denial of the  motion to suppress his statements, saying (p.1135):

      “The troopers’ minimization of the defendant’s crimes, their implied assurances of leniency, and their suggestion that such leniency was a ‘now or never’ proposition reinforced their insistence that, in admitting to involvement in the fires, the defendant would not necessarily be admitting to having committed any serious felonies. These misrepresentations, in combination with the troopers’ attempts to persuade the defendant not to obtain the advice of counsel on whether to exercise his right to remain silent, constituted an affirmative interference with the defendant’s understanding of his fundamental constitutional rights. On this record, the Commonwealth has not shown beyond a reasonable doubt that the defendant’s statements were nevertheless freely and voluntarily made.”  (967 N.E.2d at 1135.)

       
    • Commonwealth v. Brown, 978 N.E.2d 591 (Mass. App. Ct. 2012):

      “The DiGiambattista case counsels that a defendant who is the subject of an unrecorded police interrogation is entitled, upon request, to a cautionary jury instruction concerning the use of such evidence. The instruction may be given even when the defendant declines to have the statement recorded.”

       
    • In Commonwealth v. Clarke, 969 N.E.2d 749 (Mass. App. Ct. 2012), the court held that the trial court did not violate the defendant’s privilege against self incrimination by allowing the state to prove that he refused to submit to have his interview recorded:

      “The Supreme Judicial Court has ‘expressed a preference’ that a defendant's statements during a police interview should be recorded. Where there is no such recording, the defendant is entitled to an instruction informing the jury of the court's preference and cautioning the jury to use great care in weighing such evidence. It is, however, ‘permissible for the prosecution to address any reasons or justifications that would explain why no recording was made, leaving it to the jury to assess what weight they should give to the lack of a recording.’”

       
    • In Commonwealth v. Portillo, 968 N.E.2d 395 (Mass. 2012), the defendant’s tape recorded custodial interrogation was conducted entirely in Spanish. The defendant moved to suppress on the ground that he was not given Miranda warnings.  The prosecutor provided the defense lawyer with a copy of the audiotape, but did not provide a copy of the English language translation which the prosecutor intended to introduce into evidence at the hearing on the motion to suppress.  The trial court granted the defendant’s motion to suppress the audio recording.  The Supreme Judicial Court held:

      “Where an audio recording of a defendant’s statements is in the possession or control of the Commonwealth and is audible, the fair administration of justice requires that the Commonwealth prepare a translated transcript of the statements the Commonwealth intends to offer in evidence at trial or any pretrial evidentiary hearing, and provide the transcript to defense counsel, leaving sufficient time to resolve in advance of trial any questions regarding the accuracy or the translation….If the commonwealth chooses not to invest the time, money or effort needed to prepare a translated transcript, it must pay the price of exclusion of the defendant’s recorded statements.”  (968 N.E.2d at 402.)

       
    • In Commonwealth v. Bermudez, 980 N.E.2d 462 (Mass. App.  Ct. 2012), two officers questioned a 17 year old male for 70 minutes in a police station interview room that was equipped with video equipment, about his involvement in a shooting.  He waived his Miranda rights and answered all questions without hesitation.  The trial judge ruled the statements inadmissible because the defendant did not knowingly waive his Miranda rights.  The Appeals Court reversed, based upon the “objective circumstances depicted in the interrogation videotape,” as well as that the defendant was “on the cusp of majority…far removed from the tender years of early adolescence.”  (980 N.E.2d at 468.)

    • In Commonwealth v. Ashley, 978 N.E.2d 576 (Mass. App. Ct. 2012), the defendant was convicted of murder, based in part upon a recording of the interview in which the defendant implicated himself in the murder.  Following a hearing on defendant’s motion to suppress, the trial judge, after reviewing the recorded interview, admitted part and suppressed part of the recorded interrogation.  On appeal, the Appeals Court affirmed, after reviewing holding the defendant knowingly waived his Miranda rights, and implicated himself without police misconduct.  The Appeals Court also rejected the argument that the videotaping violated the state wiretapping statute, which the Supreme Judicial court did not address in the DiGiambattista case.  The Appeals Court held that the detectives made it clear that they wanted to know and understand and get “down on paper” the defendant’s version of events, and that he “did not intend to keep his statements private, “recording of the interrogation does not amount to surreptitious eavesdropping; even if…a literal interpretation of the statute might imply a violation, we do not view the statute as intended to apply in such circumstances as these.”  (978 N.E.2d at 587.)

    • In Commonwealth v. Rousseau,990N.E.2d 543, 560 (Mass. 2013) 

      “The defendant contends that the emphasized portion of the above instruction vitiated the DiGiambattista instruction by informing the jury that they could consider the fact that the defendant was given the opportunity to have the interrogation recorded, but declined. As an initial matter, we find nothing wrong with the gist of the judge's additional language, which we think ‘hews to the lines laid out in DiGiambattista.’The additional instruction merely alerted the jury to a factor they were entitled to consider in assessing why the conversation was not recorded, while leaving intact the instruction's cautionary force.”

      “However, while the use of an additional instruction such as given here is permissible, the use of the term ‘waived’ is problematic.”

      The court found that the error was not prejudicial. 

       
     
Departments we have identified that currently record:
  • Amherst
  • Assumption College Campus
  • Auburn
  • Ayer
  • Barnstable
  • Boston
  • Bourne
  • Brewster
  • Cambridge
  • Dalton
  • Darmouth
  • Dennis
  • Easton
  • Edgartown
  • Fall River
  • Great Barrington
  • Holyoke
  • Hudson
  • Lenox
  • Longmeadow
  • Nantucket
  • North Central Correctional Inst.
  • Northeastern Univ.
  • Oak Bluffs
  • Orleans
  • Pittsfield Quinsigamond College
  • Revere FD
  • Sheffield
  • Somerset
  • Somerville
  • State Police
  • Tewksbury
  • Truro
  • West Brookfield
  • West Tisbury
  • Westfield
  • Yarmouth

Overview Page|States Map 

Michigan

Updated: 4/11/2014 - Print the Michigan entry.

Statutes and Court Rules

Michigan has a 2012 statute relating to recording.

  • The statute provides (Mich. Comp. Laws §§763.7-11 (2013)).

    • General rule: Audiovisual recordings shall be made of the entire interrogations of arrested persons in custodial detention in a place of detention regarding involvement in the commission of “a felony punishable by imprisonment for life, for life or for any term of years, of for a statutory maximum of 20 years or more, or a violation of section 520d of the Michigan penal code” relating to criminal sexual conduct in the third degree. §§7(d), 8(2).

    °  Exception: The person objects to recording the interrogation. §8(3).

    • Consequences of unexcused failure to record: Failure to record as required “does not prevent any law enforcement official present during the taking of the statement from testifying in court as to the circumstances and content of the individual’s statement if the court determines that the statement is otherwise admissible,” but “the jury shall be instructed that if is the law of this state to record statements of an individual in custodial detention who is under interrogation for a major felony and that the jury may consider the absence of a recording in evaluating the evidence relating to the individual’s statement.” Failure to comply does not create a civil cause of action. §§9, 10.

    • Effective date: The statutory requirements take effect in each law enforcement agency within either 60 or 120 days after the agency obtains appropriate audiovisual recording equipment or funds for the equipment. §§8(1), 11(3)(4).

    • Miscellany: Within 120 days after the effective date of the act, the commission on law enforcement standards “shall set quality standards for the audiovisual recording of statements,…and for the geographic accessibility of equipment in the state”; and “conduct an assessment of the initial cost necessary for law enforcement agencies to purchase audiovisual recording equipment,” and conduct assessments regarding the costs of purchasing, upgrading, or replacing the equipment every two years.” §11(1) The commission shall annually recommend to the legislature an annual appropriation amount , and the legislature shall annually appropriate funds, in addition to other appropriations provided to the commission, for distribution to agencies throughout the state to allow them to purchase audiovisual recording equipment. §11(2).

    °  Preservation: None given.

     
  • A Supreme Court of Michigan case:  

Chief Justice Marilyn Kelly of the Michigan Supreme Court, dissenting in State v. Parks, 797 N.W.2d 136, 137-38 (Mich. 2011):

“Although most courts have concluded that a failure to electronically record police interrogations does not violate their state constitution, many have recognized the benefits of such recordings to all parties. Consequently, many states now require them. A few courts have adopted mandatory recording requirements as part of their supervisory powers. They have held that the proper remedy for a violation of that requirement is suppression at trial of the statement made to the police. Other courts imposing a recording requirement have adopted the remedy of a cautionary jury instruction when that requirement is violated. Still other courts that have not yet adopted a recording rule have directed further study on the merits of adopting such a rule.

“Several state legislatures have passed statutes requiring electronic recording of police interrogations. In Michigan, the House of Representatives passed a bill requiring electronic recording of interrogations in 2010, but the legislative session ended before the Senate took it up. The Michigan Senate unanimously passed a similar bill in April of this year, and the measure is currently pending in the House.

“Given these developments, I would grant defendant’s application for leave to appeal. The issue that defendant presents involves legal principles of major significance to this state’s jurisprudence. The Court should determine whether, in the exercise of its supervisory powers, it should require that all custodial police interrogations in Michigan be electronically recorded. If so, it should determine the appropriate remedy for a violation of that requirement.” (Footnotes omitted.)

Overview Page|States Map 

Minnesota

Updated: 5/5/2014 - Print the Minnesota entry.

Statutes and Court Rules

Minnesota has a 1994 Supreme Court case relating to recording.

  • In State v. Scales, 518 N.W.2d 587, 591-92 (Minn. 1994), the Supreme Court held that all departments in Minnesota must record all custodial interrogations. 

    • General rule (pp. 591-93):

      “In previous cases, we have been concerned about the failure of law enforcement officers to record custodial interrogations.”

       * * *

“…in the exercise of our supervisory power to insure the fair administration of justice, we hold that all custodial interrogations including any information about rights, any waiver of those rights, and all questioning shall be electronically recorded where feasible and must be recorded when questioning occurs at a place of detention. If law enforcement officers fail to comply with this recording requirement, any statements the suspect makes in response to the interrogation may be suppressed at trial...suppression will be required of any statements obtained in violation of the recording requirement if the violation is deemed ‘substantial.’ This determination is to be made by the trial court after bearing on substantiality, including those set forth in §150.3(2) and (3) of the Model Code of Pre-Arraignment Procedure [see Part 4 below]. If the court finds a violation not to be substantial, it shall set forth its reason for such finding.”

  • Preservation: None given.

  • Minnesota Supreme court cases:

    • In 2009, Justice Paul H. Anderson, concurring in State v. Sanders, 775 N.W.2d 883, 889-90 (Minn. 2009), wrote:

      “…When we adopted the Scales rule in 1994, we were only the second state in the nation to adopt this approach. Our decision to adopt the Scales rule was greeted with considerable skepticism and dissent. Over the years, the wisdom of our decision has been proven and many law enforcement officials now heartily endorse recorded interrogations as an effective law enforcement tool.

      Scales has significantly reduced the number of law enforcement issues confronting the courts. When I first joined our court, we were still dealing with many pre-Scales cases challenging Miranda warnings given by police officers. It was fairly routine for a defendant to question the propriety of an officer’s Miranda warning. The use of Scales has revealed, in the vast majority of cases, the competence and general conscientiousness with which police officers in Minnesota advise defendants of their rights under Miranda. As a result, in recent years, we have very few valid Miranda challenges that have come to our court. This is a good development.

      “Further, the use of Scales has in many cases eliminated frivolous and unfounded objections by defendants as to the circumstances surrounding their interrogation. While law enforcement initially feared that by having interrogations recorded it would lose an effective component of its interrogation of defendants, the opposite is true. Not only has Scales revealed that in almost all cases law enforcement does a conscientious job when conducting an interrogation, the recorded interrogation frequently turns out to be some of the best evidence against the defendant. In essence, Scales has resulted in the best of both worlds. The defendant’s rights are protected and law enforcement is more effective.”

       
    • In State v. Chavarria-Cruz, 784 N.W.2d 355 (2010), the defendant was indicted and tried for murder argued that his confession should have been suppressed because during his custodial interrogation, which was audio recorded,  he invoked his constitutional right to a lawyer.  The interrogation was audio taped.  The trial court and Court of Appeals rejected the defendant’s argument.  The Supreme Court wrote that the tape recording revealed the defendant said something that sounded like, “I’m cooperating here.  I could just be like, you know, get me a lawyer.”  The Supreme Court ruled that “Chavarria-Cruz’s reference to wanting a lawyer can clearly be head – a fact that [detective] Hanson himself later conceded upon listening to the tape.”  The Court concluded that the defendant “expressed himself sufficiently clearly that a reasonable officer would have heard his request for a lawyer,” therefore the questioning should have ceased, and since it did not, the courts below erred in denying the motion to suppress the confession, and ordered a new trial. (784 N.W.2d at 365.)

    • Commentary:

      The proliferation of cases interpreting the recording requirement recounted above is evidence of the superiority of legislation and supreme court rules on the subject of recording, compared to recording rules imposed in supreme court opinions.  Legislation and court rules deal in advance with many of the issues that have been decided on a case by case basis in the two states governed by supreme court opinions, Alaska and Minnesota.

       
     

Overview Page|States Map 

Mississippi

Updated: 5/5/2014 - Print the Mississippi entry.

Statutes and Court Rules

Mississippi has no statute or court ruling relating to recording.

•  A Mississippi Supreme Court case.

In Williams v. State, 522 So.2d 201, 208 (Miss. 1988), the Court said:

“We accept that whether or not a statement is electronically preserved is important in many contexts. If a recording does exist it will often help to determine the voluntariness of the confession, the context in which a particular statement was made, and of course, the actual content of the statement.”

Departments we have identified that currently record:
  • Biloxi
  • Cleveland
  • Gulfport
  • Harrison CS
  • Jackson CS

 

 

 

Overview Page|States Map 

Missouri

Updated: 7/1/2014 - Print the Missouri entry.

Statutes and Court Rules

Missouri has a 2009  statute relating to recording. (Mo. Rev. Stat. ch. 590.700.) 

    • General rule: All custodial interrogations of persons suspected of committing or attempting to commit the listed felony offenses shall be recorded when feasible. The offenses are first and second degree murder; first degree assault, elder abuse, robbery; statutory rape, and statutory sodomy; arson; forcible rape and sodomy; kidnapping; and child abuse. §2.

    • Recording includes any form of audiotape, videotape, motion picture or digital recording. §2.

    • Each law enforcement agency shall adopt a written policy to record custodial interrogations of persons suspected of committing or attempting to commit the [listed] felony crimes.” §4.

    • Exceptions: Law enforcement agencies are not required to record an interrogation if the suspect requests that the interrogation not be recorded; the interrogation occurs outside the state; exigent public safety circumstances prevent recording; the recording equipment fails, or is not available at the location where the interrogation takes place. §3.

    • Consequences of unexcused failure to record: “If a law enforcement agency fails to comply with the provisions of this section, the governor may withhold any state funds appropriated to the noncompliant law enforcement agency if the governor finds the agency did not act in good faith in attempting to comply with the provisions of this section.” §5. However, nothing in this statute shall be construed as a ground to exclude evidence, and a violation of this section shall not have impact other than that provided in section 5 of this section. Compliance or noncompliance with this section shall not be admitted as evidence, argued, referenced, considered or questioned during a criminal trial.”

    • Miscellany: Recordings may be made with or without the knowledge or consent of a suspect. §3.

    • Preservation: None given.

      In January, 2014, SB 732 was introduced in the General Assembly which includes a replacement for the existing recording statute described above. Among other changes, it includes a provision that a statement made by a suspect that a failure to make a recording as required, unless a statutory exception is applicable, shall be presumed inadmissible, and the state shall bear the burden of proving the applicability of an exception; that the presumption may be overcome by a preponderance of evidence taht the statement was voluntary and is reliable; and that when evidence of compliance or noncompliance is presented, the jury shall be instructed that it may consider that evidence to determine whether the statement was voluntary and reliable. The bill, which contains other changes as well, is pending before the Senate.
  • Commentary: The enforcement mechanism in the existing statute, relating to funding, is weaker than those in several other states.

Overview Page|States Map 

Montana

Updated: 4/11/2014 - Print the Montana entry.

Statutes and Court Rules

Montana has a 2009 statute relating to recording.  Mont. Code Ann. §§406.4 - 406.11 (2009).

    • The statute contains the following Statement of Purpose:

      “The legislature intends to require the electronic recording of custodial interrogations in felony cases based on the finding that properly recorded interrogations (1) provide the best evidence of the communications that occurred during an interrogation; (2) prevent disputes about a peace officer’s conduct or treatment of a suspect during an interrogation; (3) prevent a defendant from lying about the account of events originally provided to law enforcement by the defendant; (4) spare judges and juries the time necessary to assess which account of an interrogation to believe; (5) enhance public confidence in the criminal process; and (6) have been encouraged by the Montana Supreme Court in a written opinion of that court.”  §46-4-406.

       
    • Definitions.  The statute defines the terms “Custodial interrogation,” “Electronic recording” (audio, visual, or audiovisual), “Place of detention,” and “Statement.” §46-4-407.

    • General rule: “Except as provided in 46-4-409, all custodial interviews must be electronically recorded. The recording must contain a peace officer advising the person being interviewed of the person’s Miranda rights, a recording of the interview, and a conclusion of the interview.” §46-4-408.

    • Exceptions: §46-4-409: A judge shall admit evidence of unrecorded statements if, at hearing, the state proves by a preponderance of the evidence that the statements have been made voluntarily and are reliable; or the person unambiguously declared that he/she would respond only if the statements were not recorded; or the failure to record the interrogation in its entirety was the result of unforeseeable equipment failure, and obtaining replacement equipment was not practicable; or exigent circumstances prevented the making of a recording; or the statements were surreptitiously recorded by or under the direction of law enforcement personnel; or the statement was made during a custodial interrogation conducted in another state by officers of that state in compliance with the laws of that state.

    • Consequences of unexcused failure to record:  “If the defendant objects to the introduction of evidence under 46-4-408, and the court finds a preponderance of the evidence that the statements are admissible, the judge shall, upon motion of the defendant, provide the jury with a cautionary instruction.” §46-4-410.

    • Montana Criminal Jury Instruction 1-119 (2009): Following is the pattern jury instruction to be given when a defendant’s unrecorded statement is introduced into evidence without proof of a statutory excuse:

      “A statement made by a Defendant other than at this trial may be an admission or a confession:

      “A confession, as applied in criminal law, is a statement by a person made after the offense was committed that he/she committed or participated in the commission of a crime. An admission is a statement made by the accused, direct or implied, of facts pertinent to the issue, and tending, in connection with proof of other facts, to prove his/her guilt. A conviction cannot be based on an admission or confession alone.

      “The circumstances under which the statement was made may be considered in determining its credibility or weight. You are the exclusive judges as to whether an admission or a confession was made by the Defendant, and if so, whether such statement is true in whole or in part. If you should find that any such statement is entirely untrue, you must reject it. If you find it is true in part, you may consider that part which you find to be true.

      “Evidence of an unrecorded oral admission or oral confession of the defendant should be viewed with caution.”

       
    • Preservation: §46-4-411: Preservation is required until defendant has exhausted his/her appeals. Upon motion by the defendant, the court may order that a copy of the electronic recording be preserved for any period beyond the expiration of all appeals.

    • Montana Supreme Court cases:  

    • In State v. Grey, 907 P.2d 951, 952, 955-96 (Mont. 1995), Grey argued that his videotaped confession, made during a custodial interrogation, should be suppressed because he was not advised of his Miranda rights . The officer who questioned Grey testified that he gave Grey the Miranda warnings before he took Grey to the interrogation room where the videotape was made; that he “chose not to use a [written] waiver form because he did not want to jeopardize the interrogation”; and that Grey orally waived his rights. The Supreme Court reversed Grey’s conviction because of the police use of deceptive tactics and failure to prove that the Miranda warnings were given. The Court said:

      “The State simply did not prove by a preponderance of the evidence that Grey voluntarily confessed. It is immeasurably more difficult for the State to sustain its burden to prove the voluntariness of a confession when there is no record of the Miranda warnings other than the officer’s testimony that he gave them.

      “We do not hold that the police must tape record or create an audio-visual record of Miranda warnings and the detainee’s waiver, as Grey urges we should and as some jurisdictions have. See, for example, Stephan v. State (Alaska 1985), 711 P.2d 1156 and State v. Scales (Minn. 1994), 518 N.W.2d 587. Although that may be the better practice and would help assure that the accused receives a constitutionally adequate Miranda warning while, at the same time, enhancing the prosecution’s ability to meet its burden to prove voluntariness, we leave the imposition of any such procedural requirement to the legislature and to individual law enforcement agencies…

      “…We do hold that, in the context of a custodial interrogation conducted at the station house or under similarly controlled circumstances, the failure of the police to preserve some tangible record of his or her giving of the Miranda warning and the knowing, intelligent waiver by the detainee will be viewed with distrust in the judicial assessment of voluntariness under the totality of circumstances surrounding the confession or admission. That is all the more so where the evidence demonstrates that, as here, the police officer made a conscious decision not to secure a written waiver or otherwise preserve his giving of the Miranda warning and the detainee’s waiver on the premise that to do so would alert the accused to exercise his rights and, thus, jeopardize the interrogation.”

       
    • In State v. Cassell, 932 P.2d 478, 482-83 (Mont. 1996), Cassell appealed his conviction on the ground that his tape recorded confession should have been suppressed because (among other reasons) he was not advised of his Miranda rights. The officers testified that Cassell was informed of and waived his Miranda rights, and that they did not have him sign a written waiver because it was not he common practice in the county to do so, and the tape recording did not reveal the warnings. The majority of the Supreme Court affirmed the trial judge’s ruling that Cassell was given and waived his Miranda rights, and no impermissible tactics were used.

    Justices Terry N. Trieweiler and William E. Hunt, Sr. wrote a special concurring opinion, in which they said (932 P.2d at 482-83):

    “In this case, Cassell was interviewed on three separate occasions. Portions of two interviews were recorded, including his incriminating statements. However, for some reason, when he was advised of his rights pursuant to the Fifth Amendment to the United States Constitution during the first interview, and when he was reminded of those rights during the second interview, the recorder had not been turned on. Therefore, there is no record that Cassell was informed of his rights, and there is no record that he waived those rights.

    “The investigating officers contend that Cassell was advised of his rights and did waive them, but that that part of the conversation was not recorded because during that time they were establishing rapport with the suspect. Cassell denies that he was given any warning, and denies that he waived his rights. The trial court, and this Court on review, are required to speculate about what actually transpired, based on the relative credibility of the witnesses to the conversation. It is no secret that law enforcement will nearly always win that contest. Therefore, they have no incentive to record that part of the conversation, and it follows, they have little incentive to actually give the required advice.

    “On the other hand, assuming the advice was given, that it was understood, and that the rights were waived, why not record the conversation and avoid the inevitable challenge to the admission or confession? That simple practice would have saved time for the prosecuting attorney, the defense attorney, the trial court, and this Court because it would have established with certainty that Cassell’s statement was either voluntary or that it should be suppressed, in compliance with the Constitution, as applied in Miranda v. Arizona.

* * *

“The excuse given for not recording Cassell’s waiver of his Fifth Amendment rights is equally inadequate. In this case, his interrogators wanted to establish a rapport with him. However, that apparently having been accomplished, nothing prevented them from obtaining an acknowledgment from Cassell, once the recorder had been turned on, that he had been advised of his rights and had waived them. Certainly, that kind of acknowledgment could not have been any more disturbing to him than being asked during a tape recorded interview whether he committed deliberate homicide.

“This is now the second case in which we have dealt with the issue of whether it is necessary to record Miranda warnings and Fifth Amendment waivers, where feasible. I would conclude, as the Minnesota Supreme Court did in State v. Scales (Minn. 1994), 518 N.W.2d 587, that following two such admonitions, further refusal to record custodial interrogations is unreasonable and should result in suppression of any incriminating statements made during those interrogations….

“When the means is available, as it was in this case, there is no practical justification for the State’s failure to record a custodial interrogation. By its failure to do so, it jeopardizes the prosecution by risking suppression of incriminating statements which have been legally obtained. Just as importantly, it makes any determination that detainees have been illegally questioned virtually impossible. Neither outcome is acceptable when the means to avoid it is readily available.

“Therefore, in the future, I will follow the rule from [State v.] Scales [Minnesota] and vote to suppress all criminal admissions made during custodial interrogations when there is neither a written waiver of the detainee’s rights, nor an electronic record of the State’s advice and the detainee’s response, assuming it is feasible to do one or the other.”

    • In State v. Worrall, 976 P.2d 968, 978 (Mont. 1999), the Supreme Court made the following observations about the police failure to use easily available electronic recordings to memorialize their contacts with suspects:

      “…this problem simply does not have to exist at all. We doubt that there is a police station or sheriff’s office in Montana that does not have …a tape recorder for recording those [custodial statements], and, in many cases, audio-visual recording equipment. Memorializing the reading of an accused’s rights, or an accused’s confession or, as in the case at bar, a citizen informant’s statement in the controlled environment of the station house, absent exigent circumstances, is neither onerous nor a high-tech enterprise. Importantly, doing so avoids the sort of ‘who said what to whom’ challenges that require trial courts to be arbiters of the credibility disputes that are nearly always resolved against the defendant.”

       

Overview Page|States Map 

Nebraska

Updated: 7/1/2014 - Print the Nebraska entry.

Statutes and Court Rules

Nebraska has a 2008 statute relating to recording.

  • The statute provides that all departments are required to record certain custodial interviews.  Neb. Rev. Stat. Ann. §§29-4501-4508(2008).

    • Legislative findings: The legislature finds that electronically recording statements made during custodial interviews is an effective way to document suspects’ waivers of rights to remain silent, or requests to have an attorney present or appointed; to reduce speculation as to the content of statements made during custodial interviews; to aid law enforcement in analyzing and reflecting untruthful statements; and to aid the fact finder in determining whether a statement was freely made.  §4501.

    • Definitions: “Custodial interrogations,” “Electronically record” (audio, digital or video recording device) “Place of detention,” and “Reasonable exception.”  §4502. 

    • General rule: Electronic recordings are required of custodial interviews in a place of detention of suspects relating to crimes resulting in death, or felonies involving sexual assault, kidnapping, child abuse or strangulation, and statements regarding the suspect’s rights described in section 29-4501 or the waiver of those rights. §4503.

    • Exceptions: A statement made when it was not practicable to electronically record the statement; recording equipment could not be reasonably obtained; the suspect refused to have the statement electronically recorded; equipment used to electronically record the statement malfunctioned; law enforcement officers reasonably believed that the crime for which the person was taken into custody was not designated in the statute; statements obtained in another state in compliance with the law of that state; and statements obtained by a federal law enforcement officer in compliance with federal law, not in an attempt to circumvent this statute. §§4502(4), 4507.

    • Impeachment: If a defendant testifies contrary to a statement he/she made during an unrecorded custodial interview, the statement may be used for purpose of impeachment if it is shown that the statement was freely, knowingly, voluntarily and intelligently made. §4505(1).

    • Consequences of unexcused failure to record: Except as otherwise provided in sections 29-4505 to 4507, if a law enforcement officer fails to comply with section 29-4503, a court shall instruct the jury that they may draw an adverse inference for the law enforcement officer’s failure to comply with such section.” §4504. However, “A jury instruction shall not be required if the prosecution proves by a preponderance of the evidence that there is a reasonable exception for there not being an electronic recording.” §4505(2).

    • Use of derivative evidence: If a law enforcement officer fails to make a recording as required, “such failure shall not bar the use of any evidence derived from such statement if the court determines that the evidence is otherwise admissible.” §4506.

    • Preservation: None provided.
In United States v. Prokupek, 632 F.3d 460 (8th Cir. 2011), the defendants were stopped by a Nebraska state trooper, who searched the car and found illegal drugs. In the federal criminal case, the defendants moved to suppress the evidence. The issue turned upon whether the traffic stop was for the driver's failing to signal his exit from the interstate (in which case the stop was illegal), or for his failure to signal his turn on to a county road after he left the interstate (in which case the stop was legal). The Court of Appeals for the Eighth Circuit reversed the District Court's denial of the motions to suppress, because a recording device in a camera mounted in the trooper's squad car recorded the trooper saying he stopped the car because of the driver's failure to signal his exit from the freeway. Circuit Judge Raymond W. Gruender wrote for the panel (632 F.3d at 463):
"...In the recording made by the dashboard camera, trooper Estwick can be heard saying to Prokupek...that 'you signaled your turn,' which we are convinced can refer only to the vehicles's turn from the exit ramp on to the county road. This plainly contradicts trooper Estwick's suppression-hearing testimony that Prokupek failed to signal his turn on to the county road.
"...Because Trooper Estwick's testimony at the hearing is so clearly and affirmatively contradicted by his own statement at the time of the events, in the absence of any explanation for this contradiction that is supported by the record, we conclude that Trooper Estwick's after-the-fact testimony at the suppression hearing is 'implausible on its face,' [citing case], and we are left with the 'firm and definite conviction that a mistake has been made.' [citing case]...
"...Therefore, the stop violated the Fourth Amendment, [citing case], and the drugs and drug paraphernalia that eventually were seized are tainted fruit of this violation and must be suppressed, [citing case]."

Overview Page|States Map 

Nevada

Updated: 4/11/2014 - Print the Nevada entry.

Statutes and Court Rules

Nevada has no statute or court rule relating to recording.

  • A Nevada Supreme Court case:  In Jimenez v. State, 775 P.2d 694, 696 (Nev. 1989), while ruling that the state constitution did not require electronic recording of custodial interviews, the Supreme Court stated, “…requiring recordings of statements would alleviate the problems of credibility of police officers who claim a defendant made incriminating statements…”
Departments we have identified that currently record:
  • Boulder City
  • Carlin
  • Douglas CS
  • Elko
  • Elko CS
  • Henderson
  • Lander CS
  • Las Vegas Metro
  • Nevada DPS
  • North Las Vegas
  • Reno
  • Sparks
  • Washoe CS
  • Wells
  • Yerington

Overview Page|States Map 

New Hampshire

Updated: 5/5/2014 - Print the New Hampshire entry.

Statutes and Court Rules

New Hampshire has a Supreme Court case dealing with recording, but it does not require recording of custodial interrogations.

    • In State v. Barnett, 789 A.2d 629, 632-33 (N.H. 2001), the Supreme Court, using its supervisory powers, ruled:

       “In order to admit into evidence the tape recording of an interrogation, which occurs after Miranda rights are given, the recording must be complete. The police need not tape the administration of a defendant’s Miranda rights or the defendant’s subsequent waiver of those rights. However, immediately following the valid waiver of a defendant’s Miranda rights, a tape recorded interrogation will not be admitted into evidence unless the statement is recorded in its entirety. Unlike Stephan [Alaska] and Scales [Minnesota], failure to record the complete interrogation will not result in the wholesale exclusion of the interrogation. [Citing Stephan and Scales] Rather, where the incomplete recording of an interrogation results in the exclusion of the tape recording itself, evidence gathered during the interrogation may still be admitted in alternative forms, subject to the usual rules of evidence.”

  • Commentary: The net result of the Barnett ruling is that if a recording is made of part but not all of a custodial statement, the partial recording is not admissible.  However, oral testimony is admissible concerning the entire interview, including testimony concerning the portion that was recorded. Therefore in New Hampshire there is no limitation on the introduction into evidence of oral testimony as to what was said during a custodial interview, The only compulsion on law enforcement to record custodial interviews is that, if the prosecution wishes to introduce a part of a recorded custodial interview, the entire interview must be recorded.
Departments we have identified that presently record:
  • Carroll CS
  • Concord
  • Conway
  • Enfield
  • Keene
  • Laconia
  • Lebanon
  • Nashua
  • Plymouth
  • Portsmouth
  • State Police
  • Swanzey

Overview Page|States Map 

New Jersey

Updated: 4/11/2014 - Print the New Jersey entry.

Statutes and Court Rules

New Jersey has a 2005 Supreme Court rule relating to recording.

  • The chronology is as follows:

    • In August 2004, as a result of its consideration of State v. Cook, 847 A.2d 530 (N.J. 2004), the Supreme Court appointed the Special Committee on Recordation of Custodial Interrogations, which was charged with examining the policy and financial implications arising from electronic recordation of custodial interviews, and to recommend how and when any type of electronic recordation of custodial intervie3ws should be implemented.

    • The Committee issued its report in 2005, which included recommendations that the court urge law enforcement agencies to make electronic recordings of custodial interrogations in specified felony investigations; and that in the event a custodial interrogations should have been recorded but was not, the trial judge should give the jury a cautionary jury instruction.

    • General rule: Later in 2005, the Supreme Court adopted Rule 3:17, which provides that, unless a specified exception is present, all custodial interrogations conducted in a place of detention must be electronically recorded when the person is charged with one of the specified felonies. §(a).

    • Exceptions: Recording is not required when electronic recording is not feasible; the suspect indicated he/she would participate only if not recorded; and the interrogators have no knowledge that a crime for which a recording is required has been committed. In a pretrial hearing, the State has the burden of proving by a preponderance of the evidence that an exception applies. §(b).

    • Consequences of unexcused failure to record: “The failure to electronically record a defendant’s custodial interrogation in a place of detention shall be a factor for consideration by the trial court in determining the admissibility of a statement, and by the jury in determining whether the statement was made, and if so, what weight, if any, to give to the statement.” §(d). “In the absence of an electronic recordation required under paragraph (a), the court shall, upon request of the defendant, provide the jury with a cautionary instruction.” §(e).

    • The jury instructions set forth in an appendix to the rule, include the following:

      “Our rules require the electronic recording of interrogations by law enforcement officers when a defendant is charged with [insert applicable offenses]. This is done to ensure that you will have before you a complete picture of the circumstances under which an alleged statement of a defendant was given, so that you may determine whether a statement was in fact made and accurately recorded. Where there is failure to electronically record an interrogation, you have not been provided with a complete picture of all the facts surrounding the defendant’s alleged statement and the precise details of that statement. By way of example, you cannot hear the tone or inflection of the defendant’s or interrogator’s voices, or hear first hand the interrogation, both questions and responses, in its entirety. Instead you have been presented with a summary based upon the recollections of law enforcement personnel. Therefore, you should weigh the evidence of the defendant’s alleged statement with great caution and care as you determine whether or not the statement was in fact made and if so whether it was accurately reported by State’s witnesses, and what, if any, weight it should be given in your deliberations. The absence of an electronic recording permits but does not compel you to conclude that the State has failed to prove that a statement was in fact given and if so, accurately reported by State’s witnesses.”

       
    • Preservation: None given.
     

Overview Page|States Map 

New Mexico

Updated: 4/11/2014 - Print the New Mexico entry.

Statutes and Court Rules

New Mexico has a 2006 statute relating to recording. N.M. Stat. Ann. §29-1-16.

    • The statute provides that when state and local law enforcement officers conduct custodial interrogations in New Mexico involving persons suspected of committing a felony, they shall record the interrogation in its entirety. If conducted in a police station, the interrogation shall be recorded by “audio or visual or both, if available.” §16-A, D.

    • Exceptions: Officers shall make recordings unless there is “good cause not to electronically record the entire custodial interrogation and [the officer] makes a contemporaneous written or electronic record of the reasons for not doing so.” Examples of good cause are that electronic recording equipment was not reasonably available; the equipment failed and obtaining replacement equipment was not feasible; and the suspect refused to be recorded. Recordings are not required of statements used for impeachment purposes. §16-B,F.

    • Consequences of unexcused failure to record: “This section shall not be construed to exclude otherwise admissible evidence in any judicial proceeding.” §16-I.

    • Preservation: None given.
  • Commentary: There is at present no consequence provided for a law enforcement agency failing to follow the statutory recording statute. While I have no information as to the degree of compliance with the statutory mandate by New Mexico law enforcement agencies, I assume statewide compliance. I have made a written recommendation to the members of the Supreme Court that they instruct the Court’s pattern jury instruction committee to prepare a jury instruction dealing with the consequences attendant upon a failure to record a custodial interrogation without a statutory excuse for failing to do so.

  • A New Mexico Supreme Court case: 

In State v. King, 300 P.3d 732, 763 (N.M. 2013), a defendant indicted for first degree murder, moved to suppress statements he made to police officers during a videotaped interrogation. The trial court granted the motion because the defendant unambiguously invoked his right to remain silent.  Based upon the videotape, the New Mexico Supreme Court affirmed, saying,

“The district court’s grant of King’s motion to suppress is affirmed because King unambiguously invoked his right to remain silent and law enforcement did not scrupulously honor his right to remain silent by immediately ceasing the interrogation.” 

Overview Page|States Map 

New York

Updated: 7/1/2014 - Print the New York entry.

Statutes and Court Rules

New York has no statute or court rule relating to recording.

A number of different organizations in New York have been involved in the subject of recording custodial interviews, hence the following discussion is presented by organization rather than chronologically.

  • 2003:  Recommendation of the State Defenders Association:

    “…in order to promote the orderly and fair resolution of criminal prosecutions, supports the passage of a rule of law mandating uninterrupted electronic recording throughout the interrogation process of individuals by law enforcement personnel.”

     
  • 2007:  Recommendation of the committee to review the conviction of Jeffrey Deskovic:

    • In 1991, 17 year old Jeffrey Deskovic was convicted by a Westchester County jury for rape and murder. The trial judge, expressing concern as to Deskovic’s guilt, imposed the minimum sentence of Deskovic was sentenced to 15 years to life imprisonment. The conviction was affirmed by the New York reviewing courts, and certiorari denied in 2001 by the U. S. Supreme Court.

    • Years later, a newly elected Westchester District Attorney agreed to test DNA samples from the case against State and federal databases. The test established a match with a man then serving a life sentence for an unrelated murder, who then confessed to the rape and murder for which Deskovic had been convicted. On motion of the District Attorney, the case against Deskovic, then 33 years old, was dismissed on the ground of actual innocence.

    • The District Attorney appointed a committee to inquire into the circumstances surrounding Deskovic’s conviction. The Committee members were two retired state court judges, a former Richmond County District Attorney, and a Supervising Attorney, Criminal Appeals Bureau, The Legal Aid Society of New York City. 

    • The Committee’s report was filed in June 2007. The conviction was based upon statements attributed to Deskovic by several police officers, some of which were recorded, but the portions in which the officers testified Deskovic made damaging admissions and his confession were not recorded, with no explanation given for not recording. Thus, the Report states (pages 14-15, 33):

      “Deskovic’s January 25th statement was far and away the most important evidence at the trial. Without it, the State had no case against him. He would never have been prosecuted for killing Correa. He would never have been convicted. He would have never have spent a day – let alone 16 years – in prison. Reasonable minds can differ about the credibility of the police explanations for sporadically recording Deskovic’s January 10th statement. No similar controversy exists about the police rationale for failure to record any of the January 25th polygraph examination. The police simply offered none….The unexcused and inexcusable failure to provide jurors with this essential tool looms large in explaining Deskovic’s wrongful conviction….

      “The Deskovic case unmistakably demonstrates the desirability of videotaping the entire interrogation of all persons suspected of all persons suspected of involvement in a violent felony.”

       
     
  • 2009 State Bar Association, House of Delegates resolution:

    “…that the New York State Bar Association urges all law enforcement agencies videotape the entirety of custodial interrogations of crime suspects in the most serious cases at police precincts, courthouses, detention centers, or other buildings where suspects are held for question; and be it

    “Further resolved that the [NYSBA] urges the New York State Legislature to enact laws requiring the videotaping of the entirety of custodial interrogations of crime suspects in the most serious cases at police precincts, courthouses, detention centers, or other buildings where suspects are held for questioning, or, where videotaping in impractical, to require the audio taping of the entirety of such custodial interrogations, and to provide appropriate remedies for non-compliance, and to appropriate funds to implement this legislation.”

     
  • 2009:  Report of the Bar Association Task Force on Wrongful Convictions:

    “custodial interrogations or all felony-level crime suspects should be electronically recorded in their entirety.”

     
  • 2010 Bar Association Committee on Criminal Justice Operations announced support of bills introduced in the General Assembly to require recording of custodial interrogations. (A.5213 and S.7877, neither bill passed.)

  • State Associations of District Attorneys, Sheriffs, Chiefs of Police and State Police, and NY City Police Department:

    • 2010: At a press conference, these organizations announced support for “the practice of video recording interrogations of suspects who are in custody in their entirety,” embodied in “New York State Guidelines for Recording Custodial Interrogations of Suspects,” described below. The press release identifies 33 counties outside of New York City which have a video program, and six others in process of developing programs. The release also contains the following quotations:
    • President, State District Attorneys Association:

      “The more than 40 counties that have voluntarily adopted the video recording of interrogations demonstrate law enforcement’s commitment to a program that will benefit public safety and safeguard the rights of the accused…The additional funding pledged by DCJS today will be critical in helping us to move forward in recording statements around the state.”

       
    • Commissioner, NY City Police Department:

      “As technology improved and better equipment became available, it made sense for the department to test video recording of custodial interrogations. Anything that supports the integrity of a criminal confession and ensures justice should be thoroughly evaluated, which is what we intend through this pilot program.”

       
    • Acting Commissioner, Department of Criminal Justice Services:

      “Governor Paterson’s administration has made a commitment to funding effective, proven programs that reduce crime and enhance the integrity of the criminal justice system. This initiative certainly meets both those aims…it is my hope that [these funds] will help keep the momentum going so that law enforcement can make statewide video recording a reality.”

       
    • Acting State Police Superintendent:

      “We believe that the videotaping of interrogations, where possible and practical, is an effective law enforcement tool.”

       
    • President, Sheriffs’ Association:

      “The Sheriffs of New York are pleased to have joined with our partners in law enforcement across this state to develop best practices for video recording of custodial interrogations.”

       
    • President, Association of Chiefs of Police:

      “Electronic recordings of custodial interrogations enhance the investigative process and assist in the investigation and prosecution of criminal cases. As additional funding and resources become available to assist those agencies who are not already utilizing electronic recordings, the ability to conduct electronic recorded interrogations will expand throughout the state.”

       
    • President-Elect, State Bar Association:

      “The New York State Bar Association has, for more than five years, urged that custodial interrogations be recorded. It has collaborated with several District Attorneys in granting them funds for a pilot program project. We are pleased that well over half of the state’s District Attorneys and many others in the law enforcement community now believe that this practice promotes justice in the prosecution of criminal cases.”

       
  • 2010 State Department of Criminal Justice Services, Guidelines for Recording Interrogations of Suspects:

    “On a voluntary basis, where resources permit, law enforcement agencies around the State are embracing video recording of interrogations as an enhancement to the criminal justice system. Video recordings of interrogations are currently being conducted in over 30 counties in New York State, with more counties soon to join in. With additional funding and resources, the ability to conduct video recorded interrogations will grow throughout the State.

    “Purpose: The purpose of this policy is to establish broad guidelines for the electronic recording of suspects’ statements in custodial interrogations and the associated use, management, storage and retrieval of such recordings. While these guidelines endorse the practice of recording custodial interrogations, they also recognize the dynamics of police work, field operation and suspect encounters. These guidelines provide latitude for officer in conducting interrogations at times that may not lend themselves to the availability or recording equipment.

    “Variations by County and Department: …Police and district attorneys are encouraged to modify these protocols to conform to their specific needs, while being mindful of the intent of the procedures...

    “Intent: It is expected that electronically recording custodial suspect interrogations will enhance the investigative process and assist in the investigation and prosecution of criminal cases. Critical evidence can be captured through the recording of interrogations. The recording will also preserve information needed regarding a person’s right to counsel and the right against self-incrimination and it can be used to resolve a person’s claim of innocence. Similarly, the electronic recording of custodial interrogations will assist in defending against civil litigation and allegations of officer misconduct.”

     

* * *

“Electronic Recording: A digital, electronic video or other recording on electronic media. (Definitions §2.)

* * *

“Qualifying Offense: (List crimes that the Department requires officers to record, at a minimum, if an interrogation is conducted). (Definitions §8.)

“When to Record: All members of the (name) Department shall, whenever possible and practicable, utilize the electronic recording system located at (location of interview) when conducting a custodial interrogation of someone suspected of a qualifying offense.” General §1.

The suspect need not be informed of the recording. If the suspect inquires, the officer “should answer truthfully and continue the interrogation.” General §3.

“The recording equipment should be turned on prior to the suspect being placed within the interview room and should be turned off only after the suspect has left the room after the interrogation is completed.” Recording the Interrogation §3.

    • Exceptions: Examples are the equipment malfunctions; equipment is not available; the officer is not aware that a qualifying offense occurred; statements are made during an interrogation conducted at a location not equipped with recording devices, and the reason for using that location is not to subvert the policy; statements made after the suspect has refused to participate in the interrogation if it is recorded – the refusal should be recorded, and the interrogation continued without recording; inadvertent error or oversight occurs that was not the result of intentional conduct of the officer. General, §2. After the interrogation is completed, a written statement may be obtained, and that should be recorded. §6.

    • Preservation: The recording shall be labeled and copies made according to Department protocols; the original should be appropriately vouchered in accordance with Departmental evidence procedures, and the original retained according to the Department’s retention policy. §§1-4.

    • Consequences of unexcused failure to record: None given.

  • 2011:  Division of Criminal Justice Services (DCJS) Video Recording of Statements Program:

    • In May 2011, the DCJS announced that “it has invested more than $2 million in federal Byrne JAG [Justice Assistance Grant] money to assist local law enforcement” to “support video recording of custodial interrogations” because “Recordings capture critical evidence needed in the investigation and prosecution of criminal cases and preserve information used to resolve a person’s claim of innocence.”
     

    • The DCJS press release contains statements in support of recording by the DCJS Acting Director (“Video recording custodial interviews allows local law enforcement to preserve evidence, safeguard the rights of the accused and protect police officers from false claims. I commend police and prosecutors from agencies large and small for embracing this important public safety initiative”); the President of the State Association of District Attorneys (the Association “embraces the video recording of interrogations. These generous grants from DCJS will go a long way in helping to support law enforcements’ efforts to instill and enhance the technology needed to implement the goal of video recording interrogations”); the President of the Chiefs of Police (“Electronic recordings of custodial interrogations enhance the investigative process and assist in the investigation and prosecution of criminal cases” which “not only promotes safe communities but builds the public’s confidence in the criminal justice system as well”); the President of the State Sheriffs Association (“Video recording of custodial interviews creates a permanent record of exactly what occurred, and prevents disputes about officer conduct, the treatment of suspects and statements they made”); and the President of the State Bar Association (“Recording an interrogation on videotape can expose a false confession – or remove doubt about the fairness of the interrogation process. In either case, justice is served”).
    • The DCJS statement concludes, “With the awarding of these grants, 58 of the state’s 62 counties will have video recording capabilities.”

    • The DCJS Program directive provides that the Byrne Justice Assistance funds are distributed to the county District Attorneys, who “will work with all law enforcement agencies, as appropriate, to select the agencies who will receive the video recording equipment. Each county should strive for maximum coverage within its jurisdiction. The District Attorney in each county will be responsible for the overall management of the project…Grant funds from this initiative can be used for equipment and installation costs only.”
  • 2009:  State Justice Task Force on Criminal Justice Reform:

    • In 2009, the Chief Judge of the New York Court of Appeals announced the creation of the Justice Task Force, whose mission is to analyze the causes of wrongful convictions, and to recommend measures to guard against future recurrences. He appointed members from a diverse group of knowledgeable persons, including judges, lawmakers, prosecutors, police officials, scientists, defense lawyers, academics, and others. Among other subjects, the Task Force heard presentations and considered recommendations on recording custodial interrogations.

    • 2012 Task Force Recommendations Regarding Recording of Custodial Interrogations. The chief points are:

      “…unless an exception applies, all custodial interrogations of suspects of qualifying offenses occurring at a place of detention must be recorded…in an appropriate setting suitable for video recording of such interrogations.”

      “…the recording requirement apply to interrogations of suspects relating to the investigation of all A-1 non-drug felonies, all violent B felonies…(homicide and related offenses), and all violent B felonies…(sex offenses).”

       
    • A list of exceptions is provided, for example, the suspect asks not to be recorded, equipment malfunctions, equipment is unavailable because already in use, etc.

      “…the hearing court consider failure to record as a factor in determining the admissibility of the relevant statement at trial.” If an unrecorded statement is admitted, “a cautionary jury instruction must be given by the trial court.”

      “…any legislation requiring the recording of custodial interrogations must be accompanied by a declaration regarding the need for adequate funding.”

       
    • In a veiled reference to the Guidelines proposed by state law enforcement agencies, described above, the Task Force wrote:

      “…the Task Force ultimately determined that electronic recording of interrogations was simply too critical to identifying false confessions and preventing wrongful convictions to recommend as a voluntary rather than mandatory reform.”

       
  • 2013 State funding for recording equipment:

    • In July 2013, the Governor announced that $1 million was to be made available to law enforcement agencies to fund the purchase and installation of equipment for video recording of interrogations.  The announcement acknowledged the inevitability of variations in the cases in which recordings will be made among the counties:

      “In addition to administering the grant funds, district attorneys must partner with police agencies in their counties to develop video recording protocols to detail, among other things, the type of crimes with which an individual is charged that would require the interview to be recorded.”

       
    • The funding will be allocated by grants; one of the prerequisites is that the agency provide existing or planned protocols regarding recording of statements; and an example protocol is attached to the grant application.  The application instructions make it clear that the protocols are not required or expected to be uniform:

      “Each recipient agency will collaborate with the District Attorney’s office to develop and implement a departmental protocol regarding the recording of statements.”

       
     
  • The State Assembly:

    Bills requiring electronic recording of custodial interrogations have been introduced in various sessions of the General Assembly, but none has passed.

     
  • Commentary: Thus, despite many recommendations for statewide recording of custodial interrogations, the necessary legislation has not been enacted by the General Assembly.  Instead, funds have been allocated to various departments, with the understanding that each department may refuse the funding, and if accepted, each may adopt its own unique oral or written rules, thus inviting statewide disparity. No official information as to the recording practices of New York's departments exists. Disparities in guidelines among departments that record are explicitly invited. No agency is tasked with tracking compliance with regulations or protocols that have been adopted. 
Departments we have identified that currently record:
  • Binghamton
  • Brockport
  • Broome CS
  • Cayuga Heights
  • Chautauqua
  • Chenango
  • Clinton
  • Columbia
  • Deposit
  • Dryden
  • Dutchess
  • Endicott
  • Franklin
  • Fulton
  • Genesee
  • Glenville
  • Greece
  • Greene
  • Herkimer
  • Irondequoit
  • Jefferson
  • Madison
  • Monroe CS
  • Niagara
  • Oneida
  • Ontario
  • Orange
  • Otsego
  • NY State - Ithaca
  • NY State - Oneonta
  • NY State - Sidney
  • Rensselaer
  • Rochester
  • Rotterdam
  • Schenectady
  • Sullivan
  • Tioga
  • Tompkins CS
  • Troy
  • Ulster
  • Vestal
  • Washington
  • Wyoming

Overview Page|States Map 

North Carolina

Updated: 7/1/2014 - Print the North Carolina entry.

Statutes and Court Rules

North Carolina has 2007 and 2011 statutes relating to recording.

  • The statute enacted in 2007 required recording of custodial interviews of homicide suspects. In 2011, an amendment was enacted expanding the recording requirement to custodial interviews of all interrogations of juveniles, and suspects in “Class A, B1, or B2 felony, and any Class C felony of rape, sex offense, or assault with a deadly weapon with intent to kill inflicting serious injury.” And all interviews of juveniles. N.C. Gen. Stat. §15A-211.

    • Statement of legislative purpose: The purpose of this Article is to require the creation of an electronic record of an entire custodial interrogation in order to eliminate disputes about interrogations, thereby improving prosecution of the guilty, while affording protection to the innocent and increasing court efficiency. §(a).
    • General rule: A law enforcement officer conducting a custodial interrogation at a place of detention of a juvenile, and of persons suspected of committing any of the felonies shall make an electronic recording of the interrogation in its entirety. §§(b), (d). Recordings must begin with the Miranda advice of rights, and end when the interview has completely finished, except for brief periods of recess upon request of the suspect or interrogator. The recording may be either video or audio, provided that “A video and audio recording shall be simultaneously produced whenever reasonably feasible, provided that a defendant may not raise this as a grounds for suppression of evidence.” §(c)(1). “If the record is a visual recording, the camera recording the custodial interrogation must be placed so that the camera films both the interrogator and the suspect.” §(c)(2). A statement made by a defendant in the course of a custodial interrogation may be presented as evidence against the defendant if an electronic recording was made of the custodial interrogation in its entirety, and the statement is otherwise admissible. §(e).
    • Exceptions: The statute does not apply to statements made during an interrogation conducted in another state by officers of the other state, or statements obtained by federal law enforcement officers; statements given when the officers are unaware that the person is suspected of homicide; or statements used only for impeachment purposes and not as substantive evidence. §(g).
    • The state may establish through clear and convincing evidence that an unrecorded statement was both voluntary and reliable, and that law enforcement officers had good cause for failing to electronically record the interrogation in its entirety. Good cause includes, but is not limited to, that the suspect refused to have the interrogation recorded, and the refusal was recorded; or the failure to record an interrogation in its entirety was the result of unforeseeable equipment failure, and obtaining replacement equipment was not feasible. §(e).

    • Consequences of unexcused failure to record: A failure to record as required by the statute shall be considered by the court in adjudicating motions to suppress a statement of the defendant made during or after a custodial interrogation. The failure to record as required shall be admissible in support of claims that the defendant’s statement was involuntary or is unreliable, provided the evidence is otherwise admissible. When evidence of compliance or noncompliance with the statute has been presented at trial, the jury shall be instructed that it may consider credible evidence of compliance or noncompliance to determine whether the defendant’s statement was voluntary and reliable. §(f).

    If the judge finds that the defendant was subjected to a custodial interrogation that was not electronically recorded in its entirety, any statement made by the defendant after the non-electronically recorded custodial interrogation, even if made during an interrogation that is otherwise in compliance with this statute, may be questioned with regard to the voluntariness and reliability of the statement. §(e).

    • Preservation: “The State shall not destroy or alter any electronic recording of a custodial interrogation of a defendant convicted of any offense related to the interrogation until one year after the completion of all State and federal appeals of the conviction, including the exhaustion of any appeal of any motion for appropriate relief or habeas corpus proceedings. Every electronic recording should be clearly identified and catalogued by law enforcement personnel.” §(h).

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North Dakota

Updated: 7/1/2014 - Print the North Dakota entry.

Statutes and Court Rules

North Dakota has no statute or rule relating to recording.

  • In 2010, the North Dakota Commission on Uniform State Laws recommended introduction in the 2011 legislative session the Uniform Electronic Recording of Custodial Interrogations Act, which was drafted by the National Conference of Commissioners on Uniform State Laws (ULC), and adopted by the ULC in July 2010.

    • The Uniform Act was introduced in 2011 (SB 2125). The Senate and House Judiciary Committees held hearings, during which testimony in support of and opposition to the bill was heard.

    • A statute was enacted providing that “the legislative management shall consider studying the feasibility and desirability of adopting the Uniform Electronic Recording of Custodial Interrogations Act. The legislative management shall report its findings and recommendations, together with any legislation necessary to implement the recommendations, to the sixty-third [2013] legislative assembly.”

    • The Legislative Management Report, filed in January 2013, states (page 236), “The committee makes no recommendation regarding the adoption of the Uniform Electronic Recording of Custodial Interrogations Act.” 

    • No electronic recording bill was introduced in the 2013 legislative session.
Departments we have identified that currently record:
  • Bismarck
  • Burleigh CS
  • Cass CS
  • Devils Lake
  • Dickinson
  • Fargo
  • Grand Forks
  • Grand Forks CS
  • Hazen
  • Jamestown
  • Minot PD
  • ND Bureau of C.I.
  • ND Highway Patrol
  • Richland CS
  • Valley City
  • Ward CS
  • West Fargo

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Ohio

Updated: 4/30/2014 - Print the Ohio entry.

Statutes and Court Rules

Ohio has a 2010 statute that authorizes but does not require recording of custodial interrogations.

    • General rule: Statements made by a person suspected of a felony described in the statute during a custodial interview that takes place in a place of detention are presumed voluntary if the statements are electronically recorded by audio or video, from the Miranda warnings until the questioning has completely finished.  The person who has made a recorded statement has the burden of proving that the statements were not voluntary. Ohio Rev. Code Ann. §2933.81(A)(3),(B).
    • Consequence of unexcused failure to record:

      “A failure to electronically record a statement as required by this section shall not provide the basis to exclude or suppress the statement in any criminal proceeding, delinquent child proceeding, or other legal proceeding.” §2933.81(C):

       
    • Preservation: §2933.81(C): Required through exhaustion of appeals.

       
  • Commentary: This statute does not mandate that electronic recording be made of custodial interviews, nor provide a meaningful incentive to police to record custodial interviews.
Departments we have identified that presently record:
  • Akron
  • Attorney General
  • Blanchester
  • Bratenahl
  • Cadiz
  • Cincinnati
  • Columbus
  • Darke CS
  • Dept. of Natural Resources
  • Dublin
  • Franklin
  • Frankin CS
  • Garfield Heights
  • Grandview Heights
  • Grove City
  • Hartford
  • Hudson
  • Miami CS
  • Millersburg
  • OH DPS
  • OH Pharmacy Board
  • Ontario
  • Reynoldsburg
  • Sinclair
  • Springsboro
  • State Highway Patrol
  • State University
  • Troy
  • Upper Arlington
  • Wapakoneta
  • Warrent CS
  • Westerville
  • Westlake
  • Worthington

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Oklahoma

Updated: 4/30/2014 - Print the Oklahoma entry.

Statutes and Court Rules

Oklahoma has no statute or rule relating to recording.

In 2010, the Board of Governors of the Oklahoma Bar Association established a "Commission dedicated to enhancing the reliability and accuracy of convictions." The Commission's report of February 2013 includes the following recommendation:

"The Commission urges the Legislature to enact a video-taping law modeled on laws in force in other states . . . The legislation should require law enforcement agencies to video-tape the entirety of custodial interrogations conducted at a place of detention in connection with the investigation of any crime which falls under 21 O.S. 13.1," involving major felonies.

Departments we have identified that currently record:
  • Moore
  • Norman
  • Oklahoma CS
  • Tecumseh

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Oregon

Updated: 4/11/2014 - Print the Oregon entry.

Statutes and Court Rules

Oregon has a 2010 statute relating to recording.

    • The statute provides that electronic recordings shall be made of custodial interviews of suspects of aggravated homicides, and offenses requiring imposition of mandatory minimum sentences) or adult prosecution of 15-17 year old offenders. Or. Rev. Stat. §133.400.

    • Exceptions: Statements made in another state in compliance with the laws of that state; a custodial interview conducted by a federal law enforcement officer in compliance with federal laws; statements made to a law enforcement agency that employs five or fewer peace officers; custodial interviews in connection with an investigation conducted by a corrections officer, a youth corrections officer, or a staff member of the Oregon State Hospital; a custodial interview for which the state demonstrates good cause for the failure to electronically record the interview. §2. Good cause includes but is not limited to the defendant’s refusal or unwillingness to have the interview recorded; the failure to record was the result of equipment failure and a replacement device was not immediately available; the operator believed in good faith that the equipment was recording the interview; electronically recording the interview would jeopardize the safety of a person or the identity of a confidential informant; exigent circumstances prevented recording the interview; the officer conducting the interview reasonably believed at the time the interview began that it was conducted in connection with a crime not covered by the statute. §7 (b).

    • Consequences of unexcused failure to record.

      “If the state offers an unrecorded statement made under the circumstances described in subsection (1) of this section in a criminal proceeding alleging the commission of aggravated murder or a crime listed ORS 137.700 or 137.707 and the state is unable to demonstrate, by a preponderance of the evidence, that an exception described in subsection (2) of this section applies, upon the request of the defendant, the court shall instruct the jury regarding the legal requirement described in subsection (1) of this section and the superior reliability of electronic recordings when compared with testimony about what was said and done.”  §3(a).

       
    • Oregon Uniform Criminal Jury Instruction No. 1007:

      “You have heard testimony in this case that [person making statement] made a statement to [name of peace officer] at [location]. The state was legally required to record that statement electronically, but did not. If the state had electronically recorded the statement, you would have been able to hear or see the actual recording of [person making statement] making the statement, rather than hear testimony about a witness’s recollection of what occurred.

      “An electronic recording of a statement is more reliable evidence of what someone said and how [he / she] said it, than is the testimony of an individual regarding [his / her] recollection of what someone said and how [he / she] said it.

      “Even though the statement was not electronically recorded, you may consider the testimony regarding the statement for what you deem it to be worth.”

       
    • Miscellany:

      If each of the statements made by the defendant that the state offers into evidence is recorded, the court may not give a cautionary instruction regarding the content of the defendant’s statements. §3(c).

      The State shall provide an electronic copy of the interview to the defense lawyer; the State is not required to provide a transcript. Unless the court orders otherwise, the defense lawyer may not copy, disseminate or republish the electronic copy except to provide a copy to the lawyer’s agent for the limited purpose of case preparation. §5.

      In pretrial and post-trial hearings, a certification that the electronic recording and transcription of the recording certified as containing a complete recording or transcription of the entirety of the interview, is admissible for the purpose of establishing the contents of a statement made in the recording, and the identity of the person who made the statement. §6.

       
    • Preservation: “A law enforcement agency that creates an electronic recording of a custodial interview shall preserve the recording until the defendant's conviction for the offense is final and all direct, post-conviction relief and habeas corpus appeals are exhausted, or until prosecution of the offense is barred by law.” §4.

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Pennsylvania

Updated: 7/1/2014 - Print the Pennsylvania entry.

Statutes and Court Rules

Pennsylvania has no statute or rule relating to recording.

  • In November 2006, the Senate of the General Assembly passed Resolution 381, “to establish an advisory committee to study the underlying causes of wrongful convictions and to make findings and recommendations to reduce the possibility that in the future innocent persons will be wrongfully convicted.” The official name is the PA State Senate Judiciary Committee – Joint State Government Commission to Study Wrongful Convictions, consisting of members of the House and Senate.

    • The resolution directs the Commission “to establish an advisory committee to study the underlying causes of wrongful convictions so that the advisory committee may develop a consensus on recommendations intended to reduce the possibility that in the future persons will be wrongfully convicted in this Commonwealth.”

    • The Advisory Committee, chaired by Duquesne University Law Professor John T. Rago, held a number of hearings at which many witnesses testified concerning potential reforms in several areas of criminal practice and procedure, including the electronic recording of custodial interrogations of felony suspects. The Advisory Committee made its report to the full Commission.

    • In September 2011, the Commission delivered to the Senate Judiciary Committee a lengthy, comprehensive report, proposing reforms to the state criminal justice system in eight areas, (http://jsg.legis.state.pa.us/publications.cfm?JSPU_PUBLN_ID=212) including the following relating to electronic recording (pages 5 and 127):

      “A statute should require custodial interrogations to be electronically recorded with a coextensive wiretap exception for law enforcement.”
      The Commission’s discussion of this proposal is contained at pages 83 to 127 of the Report, and a proposed recording statute is contained in Appendix A, pages 169 to 172; the comments of the members who dissented from the recording recommendation appear at pages 310-12.

       
    • An Independent Report, prepared by the Law Enforcement and Victim Group Representatives, dated September 2011, expressed opposition to mandating the use of electronic recording without first implementing a pilot project monitored by the PA Commission on Crime and Delinquency.

    • The General Assembly has not yet acted on the Commission or the Law Enforcement reports.

    • In November 2011, several senators introduced SB 1338, which contains many of the Commission’s recommendations, including that dealing with recording of interrogations (Ch. 83, Subchapter A). These provisions track those of the Uniform Law Commission Act, except the proposal extends the recording requirement from arrested suspects held in a place of detention to arrested suspects wherever they may be. The bill was referred to the Senate Judiciary Committee, which took no action.

       
    • Allegheny County. In 2014, a document entitled Electronic Recording of Custodial Interrogation Procedures was published by the Allegheny County Criminal Justice Advisory Board (CJAB), in partnership with the Allegheny County District Attorney's Office. This report relates to interrogations persons who are in police custody suspected of "the commission of serious crimes." The report was facilitated by the CJAB co-chairs, Judge Jeffrey Manning, President Judge of Allegheny County (5th Judicial District), and Rich Fitzgerald, Allegheny County Executive, as well as members of the county law enforcement community and Professor Rago. Many of the elements in this 2014 report appear in the 2011 Advisory Committee report discussed above.
    The introductory sections of the document state:

    "The purpose of this policy is to establish the practice for the electronic recording of custodial interrogations of adults and juveniles along with the associated use, management, storage and retrieval of such recordings. It is recognized that under current Pennsylvania law consent must be obtained from the subject prior to audio recording but not prior to video recording of custodial interrogations.

    "The use of electronic recording during custodial interrogations is intended to enhance the investigative process and assist the prosecution of criminal cases. The recording of custodial interviews will assist the department in demonstrating the interrogation process, preserving the statements of the accused, and defending against claims such a deprivation of the right to counsel and the right against self-incrimination. While serving to enhance public confidence in the integrity of our investigations and prosecutions, this policy is mindful of these and other benefits of recordings balanced with the overwhelming public policy demands upon the police in solving crimes."
The draft policy requires recording by audio or video of custodial interrogations of persons suspected of "serious crimes," which include homicide, sexual assault, aggravated assault, burglary, and intent to commit those crimes.
I have been advised this policy, still in the drafting phase, is the result of a collaboration among the Office of the Allegheny County Police, the Allegheny County Municipal Chiefs Association, and the City of Pittsburgh Police. Allegheny County's law enforcement community consists of 4,100 sworn officers at 166 police departments/agencies, and its population is over 1.2 million. 
  • Philadelphia Police Department. I have been advised that the city police department currently records custodial interrogations of homicide suspects, and has recently received private grants of $85,000 for additional video recording equipment, to enable expansion of recording to other crimes. The Philadelphia Police Department has 6.600 sworn officers, and the City has a population of 1,500,000.
Departments we have identified that currently record:
  • Bethlehem
  • Bradford Twp.
  • Philadelphia
  • Pittsburgh
  • Tredyffrin Twp.
  • Whitehall

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Rhode Island

Updated: 7/1/2014 - Print the Rhode Island entry.

Statutes and Court Rules

Rhode Island has no statute or court rule relating to recording. However a model electronic recording policy promulgated by the Rhode Island Police Accreditation Commission in 2013. The policy requires that recordings be made of custodial interrogations of persons suspected of capital offenses. The policy has been agreed to by all 43 police departments and will therefore result in statewide compliance with recording of custodial interrogations of persons suspected of capital felonies.  The chronology is as follows:

•  2009 and 2010:  The legislature passed bills requiring electronic recording of certain custodial interviews, but both bills were vetoed by the Governor. (2009: H5134A, S0212A; 2010: H7380, S2228.)

•  June 2011:  A statute was enacted establishing a Task Force which, “in consultation with whatever experts it may deem appropriate, shall study and make recommendations concerning the establishment of a statewide law enforcement practice of electronically recording custodial interrogations in their entirety.” R.I. Gen. Laws §12-7-22. 

The Task Force was created “In order to minimize the likelihood of a wrongful conviction caused by a false confession,” and to “Further improve the already high quality of criminal justice in our state.” §(a), (d). The Task Force’s 11 members include several from the State’s law enforcement community, the Public Defender, the Presidents of the Rhode Island Bar Association and Criminal Defense Lawyers Associations, and the Executive Director of the State Commission for Human Rights. §(b). The Task Force was directed to submit its report to various state officials no later than February 1, 2012, with recommendations concerning the investigation and development of policies and procedures for electronically recording custodial interrogations in their entirety. §(e),  

•  February 1, 2012:  The Task Force filed its Final Report with the following recommendations (pages 9-19):

No later than July 1, 2013, every law enforcement agency should adopt uniform written policies and procedures requiring electronic recording of custodial interrogations in their entirety.  The policies should be consistent with (1) the Task Force recommendations, (2) training afforded law enforcement personnel by specified state police agencies, (3) oversight by the Attorney General, (4) standards promulgated by the Accreditation Commission Standards Committee of the Police Chief’s Association, “which will be used to implement a uniform statewide written policy” regarding electronic recordings.” The interrogations should be recorded using audio-visual equipment, but if that is impossible or impractical, by audio recording. If a suspect refuses to be recorded, the refusal be memorialized electronically or in writing, and signed by the officer, suspect, or both. The written policy should provide that the requirement of recording is dispensed with when exigent circumstances are present (examples given). At a minimum, the written policies should require recording during the interrogation of suspects for a crime for which a life sentence is a potential penalty.

•  May 2013, revised December 2013:  As recommended by the Task Force, the Rhode Island Police Accreditation Commission (RIPAC) included in its Accreditation Standards Manual - which contains mandatory requirements for accreditation of state police departments - §8.10 (pages 45-46), which requires that each department adopt “a written directive that all custodial interrogations in capital cases be electronically recorded in their entirety using audio-visual equipment.”  An explanatory paragraph entitled “Guidance” states (page 45):

“In addition to guarding against false confessions, the electronic recording of custodial interrogationshas many positive benefits for law enforcement in prosecuting the accused. For example, recordings make law enforcement officers more efficient and effective while questioning suspects, permitting officers conducting interrogations to focus more on a suspect’s responses rather than taking written notes of such responses. Recordings also make it unnecessary for officers to struggle to recall details when later writing reports and testifying about what occurred during interrogations. Additionally, recordings offer prosecution and defense attorneys a reliable way of determining whether custodial interrogations were conducted consistent with legal requirements.”   

•  October 2013:  RIPAC, in cooperation with the Rhode Island Police Chiefs Association, adopted and distributed to the state’s 43 police departments (Rhode Island has no sheriffs) an “Electronic Recording of Custodial Interrogations” model policy. 

The model policy provides: 

ₒ  General rule:  Custodial interrogations of persons suspected of committing a capital offense will be recorded by audio and video, or by audio if video recording is impossible or impractical, from the Miranda warnings to the end.  Capital offenses are the listed 25 crimes which carry a maximum penalty of life in prison.  §II, IVA, G1.

ₒ  Exceptions:  Exigent circumstances preclude recording; the suspect refuses to be recorded.  §IVF, H.

ₒ  Consequences of unexcused failure to record:  The recording standard is mandatory, therefore failure to adopt or comply with the policy may result in loss of RIPAC accreditation..

ₒ  Preservation:  A copy of each recording will be preserved in accordance with the department’s protocols for property and evidence.  §VI.

ₒ  Miscellany:  I have been advised by a representative of RIPAC:  All 43 Rhode Island police departments have agreed to adopt and comply with the model policy.  To achieve implementation of the recording policy, training is in preparation by representatives of RIPAC, the Attorney General, the municipal police academy, and various law enforcement officers from around the state.  The training is expected to be completed early in 2014.  A police department’s failure to adopt or comply with RIPAC’s accreditation standards, which includes the model policy, may result in loss of RIPAC accreditation.  The Accreditation Standards Manual has a separate section relating to issues that may arise relating to interrogations of juveniles. §9.4.

  • An earlier Supreme Court ruling  

In State v. Barros, 24 A.3d 1158 (R.I. 2011), the Supreme Court rejected the argument that the Due Process Clause of either the federal or state Constitutions require electronic recording of custodial interrogations, and the Court declined to exercise its supervisory authority to mandate a recording requirement. Concurring, Chief Justice Paul A. Suttell stated (24 A.3d at 1184):

“…[I write] separately to signify my earnest endorsement of Justice Flaherty’s comments concerning the myriad benefits to the criminal justice system resulting from the electronic recording of police interrogations. It is a practice greatly to be encouraged.”

Justice Francis X. Flaherty, dissenting in part and concurring in the result, said:

“The challenge of balancing the rights of defendants, the evidence-collecting responsibilities of law enforcement and prosecutors, and the truth-seeking goals of judges and juries has been a moving target. Since Brown v. Mississippi, 297 U.S. 278 (1936) (and without doubt before Brown), courts have struggled to maintain an appropriate balance between these interests in myriad contexts. The increased availability and ease of use of advanced technology has altered that balance still more.”

* * *

“It is significant that most courts that have considered the merits of electronic recording have concluded that adopting the practice significantly improves the criminal justice system, and specifically, the ability of judges and juries to get to the truth….

“There can be no question that as courts and legislatures engage in the continuing work of providing for a just determination in every criminal proceeding, there has been a concomitant trend to require that the interrogations of suspects be recorded. Indeed, since Alaska’s adoption of the practice a quarter of a century ago, fourteen states and the District of Columbia now require law-enforcement personnel to record some or all custodial interviews. The legislatures and the courts of our sister states that have traveled that path have expressed a preference that confessions be recorded through the development of sundry procedures that encourage or mandate such recordings. Those preferences have ranged from (1) a statement by the court of its preference for electronic recording of detention-based custodial interrogations, (2) a statute requiring a jury instruction that a jury may presume involuntariness from the absence of a recording, complete or otherwise, (3) a presumption of inadmissibility when the custodial interrogation is not recorded in its entirety, (4) a presumption of admissibility when the custodial interrogation is recorded in full, (5) a jury instruction conveying that a jury should evaluate with particular caution an alleged statement or confession made at a place of detention and derived from an unrecorded interrogation. Significantly, many law enforcement agencies across the country record such interviews as a matter of sound policy and best practice. (Footnotes omitted.)

* * *

“There is no question that there may be a multitude of valid reasons why law enforcement does not record a suspect’s confession. These may range from an experienced interrogator’s judgment that the suspect will not talk if he is being recorded, to the flat refusal of a person being interrogated to give a recorded statement. However, despite such valid potential reasons, it is the fact-finder who carries the burden of adjudging the voluntariness of the statement, and the fact-finder is entitled to the best and highest quality of evidence, or an explanation why it was not presented to it. And it is this Court’s responsibility, under its supervisory authority, to aid the fact-finder in its search for the truth.”

Regarding the so-called “Humane Practice Rule” – requiring the trial judge and the jury to make separate and independent determinations of the voluntariness of the defendant’s custodial statements – Justice Flaherty said (24 A.3d at 1190):

“… the Humane Practice Rule’s dual-tier review of voluntariness is not in and of itself a sufficient prophylactic to the extent that we can confidently ignore the additional protections provided by the widespread availability and ease of use of highly reliable recording technologies.

* * *

“…By encouraging recordings of custodial, detention-centered interrogations, this Court would not undermine the Humane Practice Rule, but would in fact enhance it by providing judges and juries with the most accurate representation of a defendant’s proffered confession.”

See also the views expressed by federal District Court Judge (now Chief Judge) William E. Smith, in the discussion of the Department of Justice, Part 3 below: United States v. Mason, 497 F. Supp. 2d 328, 335-36 (D.R.I. 2007).

Overview Page|States Map 

South Carolina

Updated: 5/5/2014 - Print the South Carolina entry.

Statutes and Court Rules

South Carolina has no statute or court rule relating to recording.

  • In December 2010, H. 3126 was introduced in the House, and referred to the Judiciary Committee. In March 2012, Senate Bill S. 1304 was introduced in the Senate, and referred to a committee. Both bills are based on the Uniform Electronic Recordation of Custodial Interrogations Act.  Neither bill passed.
Departments we have identified that currently record:
  • Aiken CS
  • Aiken DPS
  • City of Charleston
  • Florence CS
  • N. Augusta DPS
  • N. Charleston
  • Savannah River Site
  • Law Enf.

 

 

 

 

Overview Page|States Map 

South Dakota

Updated: 7/1/2014 - Print the South Dakota entry.

Statutes and Court Rules

South Dakota has no statute or court rule relating to recording.

 

  • A South Dakota Supreme Court case:

    In May, 2014, the court affirmed the conviction of a juvenile which involved a series of custodial interrogations that were partially recorded. In a footnote, the Court said (South Dakota v. Diaz, 2014 S.D. 27):

    "Amici curiae urge this Court to adopt a rule requiring all juvenile interrogations to be electronically recorded. Although we recommend electronically recording juvenile interrogations because it helps judges resolve admissibility issues, it protects police from frivolous claims in misconduct, and protects juveniles' rights, In re Jerrell C.J., 699 N.W.2d 110, 122-23 (Wis. 2005), we reserve the analysis of such requirement for a case where the issue squarely presents itself. Here, the video and audio recording captured all but one hour of questioning. Although the confession and the half hour preceding it are missing, the crucial Miranda warnings and responses to those warnings are captured."

 

Departments we have identified that currently record:
  • Aberdeen
  • Belle Fourche
  • Brandon
  • Brookings
  • Brown CS
  • Clay CS
  • Lincoln CS
  • Minnehaha CS
  • Mitchell
  • Pierre
  • Rapid City
  • Sioux Falls
  • State Div. of Criminal Inv.
  • State Univ.
  • Vermillion
  • Yankton

Overview Page|States Map 

Tennessee

Updated: 4/11/2014 - Print the Tennessee entry.

Statutes and Court Rules

Tennessee has no statute or court rule relating to recording.

    • In April, 2002, the General Assembly passed a joint resolution directing the Law Enforcement Advisory Council (LEAC) “to study and evaluate all issues relevant to the electronic recording of custodial interrogations of criminal defendants, including current practices and procedures of law enforcement agencies in Tennessee.” (JR 862.)

    • In May 2003, LEAC reported on its study and evaluation, including discussions of concerns about cost; investigative effectiveness (“…balancing the evidentiary value of the tape against the potential that the equipment would intimidate a defendant and prevent a confession from occurring”); lack of policy and procedure; and creation of statutory right (“As a general rule, the Council feels that the Federal and State constitutions provide sufficient protection of defendants’ civil rights, and the creation of additional statutory rights is unnecessary”).  The report concluded:

      “At present, the point that is clearest to the members of the [LEAC] is that enough concerns have been identified about an absolute requirement to record all custodial interrogations to make immediate action on the point without further review premature. The Council…urges the Committees to delay action on the matter until such time as the pros and cons can be more fully developed…”

       
    • In 2005, a recording bill, was introduced in the Senate (SB 108), but was not enacted.

    • In 2011, companion bills were introduced, based upon the Uniform Electronic Recordation of Custodial Interrogations  Act (SB511 and HB572).  The House bill failed in committee, and no further action was taken.
  • An opinion of the Supreme Court: 

In State v. Godsey, 60 S.W.3d 759, 772 (2001), the court said:

“There can be little doubt that electronically recording custodial interrogations would reduce the amount of time spent in court resolving disputes over what occurred during interrogation. As a result, the judiciary would be relieved of much of the burden of resolving these disputes. In light of the slight inconvenience and expense associated with electronically recording custodial interrogations, sound policy considerations support its adoption as a law enforcement practice. However, ‘[t]he determination of public policy is primarily a function of the legislature.’ [Citing cases]”

Departments we have identified that currently record:
  • Bell Meade
  • Benton CS
  • Blount CS
  • Bradley CS
  • Brentwood
  • Bristol
  • Chattanooga
  • Cleveland
  • Franklin
  • Gallatin
  • Goodlettsville
  • Hamilton CS
  • Hendersonville
  • Highway Patrol
  • Knox CS
  • Knoxville
  • Loudon CS
  • Montgomery CS
  • Murfreesboro
  • Nashville
  • Shelby CS
  • White CS

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Texas

Updated: 4/11/2014 - Print the Texas entry.

Statutes and Court Rules

Texas has a statute relating to recording, but it has been construed to admit written statements that result from unrecorded oral interrogations, and under certain circumstances unrecorded custodial statements.  Tex. Code Crim. Proc., Ann., art. 38.22.

  • The Texas statute relating to adults does not require that custodial interrogations be recorded. 

    • With respect to written statements, the Texas statute permits their introduction if the suspect received and waived the Miranda rights before the written statement was made, even though the statement was made during or after an unrecorded oral interrogation. §2. 

    • As to oral statements made during custodial interrogations, the general rule is that they are inadmissible unless the Miranda rights were explained and waived at the outset, and the entire interrogation was recorded. §3.

    • Exceptions:

      (1)  Oral, unrecorded statements of an accused are admissible if the statement “contains assertions of facts or circumstances that are found to be true and which conduce to establish the guilt of the accused, such as the finding of secreted or stolen property or the instrument with which he states the offense was committed.” §3(c).

      (2)  The prohibition against admission of unrecorded statements does not apply to “a voluntary statement, whether or not the result of a custodial interrogation, that has a bearing upon the credibility of the accused as a witness, or of any other statement that may be admissible under law.” §5.

      (3)  A suspect’s unrecorded statement is admissible if obtained outside Texas in compliance with the law of the state where obtained, or was obtained by a federal law enforcement officer in compliance with federal law. §8.

       
    • Preservation: “Every electronic recording of any statement made by an accused during a custodial interrogation must be preserved until such time as the defendant's conviction for any offense relating thereto is final, all direct appeals there from are exhausted, or the prosecution of such offenses is barred by law.” §3(b).
     
  • The Texas statute relating to juveniles. 

Texas has a statute relating specifically to the admissibility of statements taken from juveniles.  Tex. Fa. Code, §51.095.  This is explained in a report issued by the Justice Project of Austin, Texas issued in May 2009 (cited in Part 5 below), (page 2):

“The Family Code offers slightly more protection for juveniles than the CCP [Code of Criminal Procedure] and indicates that statements made by juveniles are admissible if they are made in writing after a magistrate is satisfied that the child understands his or her rights, if statements are made orally regarding circumstances that are found to be true, if the statement was res gestae of the delinquent conduct, if the statement is made in open court or before a grand jury, or if the statement is made orally and electronically recorded while the suspect is in custody. The Family Code, like the CCP, however does not require that complete interrogations be recorded. “

  • The Timothy Cole Advisory Panel on Wrongful Convictions

The Panel – named for the first Texan to be posthumously exonerated of a crime through DNA testing – was created in 2009 by the Texas legislature (H.B. 498, 81st Leg.), with directions to advise the Texas Task Force on Indigent Defense in the preparation of a study regarding the causes and prevention of wrongful convictions, including (among others) recording of custodial interrogations. The Committee's report, issued in August 2010, included the following:

“The State of Texas should adopt a mandatory electronic recording policy, from delivery of Miranda warnings to the end, for custodial interrogations in certain felony crimes. The policy should include a list of exceptions to recording and the judicial discretion to issue a jury instruction in the case of an excused failure to record.”

“Creating a complete, accurate, and reviewable document that captures the entirety of a custodial interrogation will help prevent wrongful convictions. The Panel therefore recommends that electronic recording be made mandatory in Texas for custodial interrogations in cases of murder, capital murder, kidnapping, aggravated kidnapping, continuous sexual abuse of a child, indecency with a child, sexual performance by a child, sexual assault, and aggravated sexual assault.”

“The Panel also recommends that exceptions to electronic recording be allowed for good cause, such as equipment malfunction, uncooperative witnesses, spontaneous statements, public safety exigencies, or instances where the investigating officer was unaware that a crime that required recorded interrogations had been committed. This takes into consideration the contingencies that investigating officers may face when dealing with a witness or suspect in the field.”

“The final recommendation from the Panel is that in instances where the Court determines that unrecorded interrogations are not the result of good faith attempts to record or that none of the exceptions to recoding apply, the Court may deliver an instruction to the jury that it is the policy of the State of Texas to record interrogations, and they may consider the absence of a recording when evaluating evidence that arose from the interrogation.”

    • The Texas legislature has not yet acted on the Panel's recommendations.
  • In 2013, SB 87 was introduced, based upon the Uniform Electronic Recordation of Custodial Interrogations Act, approved by the National Conference of Commissioners on Uniform State Laws, described in Part 4 below.  The bill was not adopted.

  • Commentary 

    • Several cases have held that the statute does not prohibit introduction into evidence of a defendant’s written statement made following and as a result of an unrecorded custodial interview. See, e.g., Franks v. State, 712 S.W.2d 858, 860-61 (Tex. Crim. App. 1986); Rae v. State, No. 01-98-00283-CR, 2001 WL 125977, at *3 (Tex. App. 2001).   

    • The Texas statute does not require all custodial interrogations of criminal suspects to be electronically recorded from the Miranda warnings to the end.  Suspects’ written statements may be obtained after the Miranda warnings are given and waived without any electronic recording whatever; the written statements are admissible under §2.  Further, law enforcement officers may, without recording, conduct custodial statements of adults suspects, then electronically record the Miranda warnings and waiver, and take a recorded oral statement or confession which is admissible under §3.

    In addition, the exception contained in §3(c) has been expanded by the holding in Moore v. State, 999 S.W.2d 385, 400 (Tex. Crim. App. 1999), that this provision includes “oral statements asserting facts or circumstances establishing the guilt of the accused if at the time they were made they contained assertions unknown by law enforcement but later corroborated.” 

    The court also held that (1) the statement need only circumstantially demonstrate the defendant’s guilt, and (2) if this provision is applicable, the defendant’s entire unrecorded statement is admissible, not only the portion that was previously unknown. 

    • The Justice Project report summarizes the status of Texas law as to adults in custody as follows (page 1):

      “Although at first glance it may seem as though the existing Texas statute mandates recorded interrogations, the key to understanding the statute is the phrase ‘statement of an accused made as a result of custodial interrogation.’ In other words, the only component of an interrogation that must be recorded in order to be admissible is the final statement, or the confession itself. Even then, only ‘oral or sign language statements’ must be recorded. Signed written statements, which are overwhelmingly relied upon, have no electronic recording requirement whatsoever. While recording of oral confessions is valuable because it presents the jury with the suspect’s final statement, it can be misleading because it does not show jurors all of the conversation and questions that lead up to that statement; recorded confessions are ultimately statements taken dangerously out of context.”

       
  • Rulings of the Texas courts:

    • In Ragan v. State, 642 S.W.2d 489, 492 (Tex. Crim. App. 1982),the Court said:

      “Section 3 of Article 38.22 shows a legislative recognition that electronically recorded statements are more trustworthy than unrecorded oral statements.” (Citing to footnote 5)

      Footnote 5: “See also Kamisar, ‘Foreword: Brewer v. Williams –A Hard Look at a Discomfiting Record,’ 66 Geo. LJ. 209, 236-242 (1977), reprinted in Y. Kamisar, Police Interrogations and Confessions, 113, 132-135 (1980) (noting preferences for tape recordings in the Model Code of Pre-Arraignment Procedure and the Uniform Rules of Criminal Procedure, and proposing that no claim of a Miranda waiver be accepted unless all interrogations after the initiation of judicial proceedings have been tape recorded).”

       
    • In Turner v. State, 252 S.W.3d 571, 583 (Tex. App. 2008), the defendant, charged with aggravated sexual assault, moved to suppress incriminating statements he made on videotape at a police station.  The trial judge denied the motion to suppress.  The review court affirmed, stating: “. . . appellant was not in custody when he made his videotaped statements, appellant's argument regarding his failure to waive his Miranda rights is without merit. Assuming, for the purposes of this issue only, appellant was in custody, his argument is still without merit. The record establishes before appellant made his incriminating statements, [detective] Wienel read appellant his Miranda rights, and appellant indicated he understood his rights. Appellant then proceeded to answer Wienel’s questions. It is undisputed appellant failed to expressly waive his rights; however, we hold appellant implicitly waived his rights.”

    • In Joseph v. State, 309 S.W.3d 20 (Tex. Crim. App. 2010), a defendant convicted of murder argued on appeal that, during a custodial interrogation, he did not knowingly and intelligently waive his rights under a provision of the Texas Code of Criminal Procedure. In affirming, the Court of Criminal Appeals recounted in detail that the video showed the defendant was treated properly by the police officers, understood his rights, and freely waived his rights and voluntarily made incriminating statements.

    • In Woodall v. State, 376 S.W.3d 122 (Tex. App. 2012), a defendant convicted of indecency with a child argued on appeal that he was suffering from a mental disorder that prevented him from fully understanding his rights and knowingly and voluntarily waiving them.  The Court of Appeals affirmed the trial court’s ruling as consistent with the evidence presented relating to the defendant’s mental state, the circumstances of his interrogation, and the videotape of the interrogation.
     
Departments we have identified that currently record:
  • Abilene
  • Alamo Heights
  • Andrews
  • Arlington
  • Austin
  • Burleson
  • Cedar Hill
  • Cedar Park
  • Cleburne
  • Collin CS
  • Corpus Christi
  • Dallas
  • Dallas CS
  • Duncanville
  • Eagle Lake
  • Eustace
  • Florence
  • Fort Worth
  • Frisco
  • George West
  • Georgetown
  • Granger
  • Harris CS
  • Hays CS
  • Houston
  • Hutto
  • Irving
  • Jim Wells
  • Johnson CS
  • Killeen
  • Leander
  • Midland
  • Midland CS
  • Murphy
  • Parker CS
  • Plano
  • Randall CS
  • Richardson
  • Round Rock
  • San Antonio FD
  • San Antonio
  • San Jacinto CS
  • Southlake DPS
  • Sugar Land
  • Taylor
  • Thrall
  • Travis CS
  • Univ. of Texas
  • Upton CS
  • Webster
  • Williamson CS

Overview Page|States Map 

Utah

Updated: 7/1/2014 - Print the Utah entry.

Statutes and Court Rules

Utah has no statute or court rule relating to recording.

Utah has 118 police departments and 29 sheriff departments, 5 departments or public safety, and the Attorney General's Investigative Division.

  • A Utah statute. A statute provides that the Attorney General has authority to "exercise supervisory powers over the district and county attorneys of the state in all matters pertaining to the duties of their office." Utah Code Ann. §67-5-1 (6). However, we have been told that this provision has been viewed as imposing a cooperative rather than hierarchical relationship. Hence, the Best Practices Statement, referred to below, appears to be advisory, without legally binding effect.

     
  • The Attorney General's Best Practices Statement. In 2008, with the endorsement of the Chiefs of Police and Sheriffs Associations, the Attorney General issued a Best Practices Statement (BPS) for Law Enforcement: Recording of Custodial Interviews, October 2008, which provides:

    "1. Any custodial interrogation of a person who is in a fixed place of detention and who, at the time of the interrogation, is suspected of having committed any violent felony offense, as defined in Utah Code §76-3-203.5(1)(c)(i), should be electronically recorded in its entirety."

    • Title 76, Chapter 3, Section 203.5(1)(c)(i) of the Utah Code lists the many crimes that are included within the definition of 'Violent felony.'"

       
    • Exceptions: The BPS does not apply if: (a) the suspect refused to speak to law enforcement if the interrogation was electronically recorded; (b) access to recording equipment required to electronically record an interrogation is not reasonably available during the period of time that the suspect was lawfully detained; (c) the equipment malfunctioned and replacement equipment is not reasonably available; (d) the law enforcement officers, in good faith, fails to record the custodial interrogation because they inadvertently failed to operate the recording equipment properly, or without their knowledge the recording equipment malfunctions or stops operating; (e) the officers conducting the custodial interrogation reasonably believe that the crime of which the person is suspected is not among those statutorily defined as a violent felony; or (f) exigent circumstances make electronic recording impossible or impractical.

       
    • §4. Preservation is required until defendant has exhausted direct and collateral appeals, or until the prosecution of the offense is barred by law.

       
    • No consequences are contained in the BPS for failure to adopt the Best Practices Statement, or for failure to follow them if adopted.

       
    • The following caveat is attached to the BPS:

      "This document provides recommendations for electronic recording of custodial questioning. No document can address all the circumstances and exigencies which officers may encounter, and this model is not intended to be a comprehensive treatment of all the factors involved in criminal investigations. While its is a general guide outlining methods for custodial questioning, the recommendations are intended to be used as guidelines, and are not intended to create any substantive or procedural rights."
     
  • The Utah Attorney General's Investigative Division. This division's officers handle serious criminal investigations statewide, with assistance from local departments. Regarding their practices when conducting custodial interrogations, the supervising officer advised me that they have a long standing practice of electronically recording all custodial interrogations, pursuant to the terms of a written policy, prepared by the Division's risk management firm, which provides for recording of custodial interrogations conducted in a fixed place of detention of persons "suspected of having committed any violent felony offense." The officer wrote:

"For my own agency, I am convinced that we do better interrogations because the investigator knows that several people will review his of her work product, almost always including one or two prosecutors and a supervisor. I can't begin to count the times that we have had defense attorneys view our digital video recordings and offer to plead. Suppression hearings almost never happen. We offer very clear and simple Miranda warnings and out interrogations are very professional."

  • The written survey of Utah's police, sheriff and public safety departments. At my request, in 2013 the supervising officer of the AG division sent a written survey to the 153 police, sheriff and public safety departments, to ascertain their practices when conducting custodial interrogations. The survey asked, "In what categories of investigations do your agency electronically record interrogations from the provisions of Miranda warnings to the conclusion of the interrogations?"
    Responses were received from representatives of about 60% of Utah departments, who reported that they record custodial interrogations in felony investigations as proposed in the Attorney General's Best Practices Statement. Some include laudatory comments about the benefits of recording interrogations.
  • Commentary. From the information available at this time about 60% of Utah's law enforcement departments have reported that they record custodial interrogations in accordance with the Attorney General's best Practices Statement, but the practices of the remaining departments are unknown.
  • Opinions of Utah reviewing courts:

    • In State v. Carter, 776 P.2d 886, 891 (Utah 1989):

      “While we hold that admission of the confession was not prejudicial error, we do not sanction the particular manner in which it was recorded in this case. In Bishop, 735 P.2d 439, 460 (1988), that defendant’s confession, together with statements made by the police officers, was recorded verbatim. This process not only helped insure that the defendant’s confession was not coerced, but also provided both the trial court and this court with the correct tools for effectively and efficiently reviewing the defendant’s contentions, as well as the totality of the circumstances of his confession. Such a process guarantees that constitutional rights are protected and justice is effected.  Nevertheless, while the dictation process that occurred in this case could conceivably amount, in other instances, to deprivation of a defendant’s constitutional rights, that was not the case here.”

       
    • In State v. James, 858 P.2d 1012, 1018 (Utah Ct. App. 1993):

      “Although, in accord with other courts, we refrain from requiring recording of interrogations under the Utah Constitution, we note several policy reasons for recording interrogations. These include avoiding unwarranted claims of coercion and avoiding actual coercive tactics by police. In addition, recording an interrogation may show the ‘voluntariness of the confession, the context in which a particular statement was made, and … the actual content of the statement.’”

       
    • In State v. Villarreal, 889 P.2d 419, 426-27 (Utah 1995):

      “We have previously addressed the importance of making a contemporaneous record of a defendant’s confession, whether by written or electronic means. See State v. Carter, 776 P.2d 886, 891 (Utah 1989). In Carter, we criticized the failure of investigating officers to record the defendant’s confession verbatim and endorsed the practice of tape recording confessions, at least when possible. Such practice better ensures that the confession is accurate when presented to the finder of fact and removes some of the errors that naturally occur in the memories of all persons in recalling events, especially precise words. If an officer’s memory of a confession is distorted, inaccurate, or incomplete, whether because of the lapse of time or a variety of psychological factors, the defendant may be forced into the dilemma of having to waive his right not to testify or allowing an erroneous account of the confession to go to the jury. Recording confessions ‘guarantees that constitutional rights are protected and justice is effected.’ Id. Thus, electronic or other recording of a confession is a simple and inexpensive means of preserving critical evidence in an accurate form and should be implemented wherever possible.

* * *

“Notwithstanding the desirability of recording confessions, it is neither practicable nor possible to require contemporaneous recordings in all instances. When a formal confession is given in a police station, it could, and should, be recorded. But confessions, and admissions short of a confession, can be made anywhere at unexpected times and places where formal recording is impossible. Barring all such evidence would deprive the courts of much evidence that is generally reliable. Thus, we hold that contemporaneous recording of a confession is not mandated by the Utah Constitution.”

Departments we have identified that currently record, most based upon unverified responses to the survey mentioned above:
  • American Fork
  • Atty G. Invtgn. Div.
  • Beaver CS
  • Box Edler CS
  • Brian Head
  • Brigham City
  • Cedar City
  • Centerville
  • Clearfield City
  • Cottonwood Heights
  • Davis CS
  • Draper City
  • DPS Highway Patrol
  • Duchesne CS
  • East Carbon
  • Emery CS
  • Enoch City
  • Farmington
  • Garfield CS
  • Garland
  • Grand CS
  • Granite School Dist.
  • Grantsville
  • Harrisville
  • Heber City
  • Hurricane City
  • Iron CS
  • Ivins PD
  • Kanab City
  • Kane CS
  • Kaysville
  • Layton City
  • Lehi City
  • Lindon City
  • Logan City
  • Lone Peak
  • Mapleton
  • Millard CS
  • Morgan CS
  • Mount Pleasant
  • Murray
  • Naples
  • Nephi
  • North Park
  • North Ogden
  • North Salt Lake
  • Orem DPS
  • Park City
  • Parowan
  • Pleasant Grove
  • Pleasant View
  • Price City
  • Provo City
  • Rich CS
  • Riverdale
  • Roosevelt
  • Roy City
  • Saint George
  • Salt Lake City
  • Salt Lake City Airport
  • Salt Lake CS
  • San Juan CS
  • Sandy
  • Saratoga Springs
  • Sevier CS
  • South Jordan
  • South Ogden
  • South Salt Lake
  • So. Utah Univ. DPS
  • Spanish Fork
  • Springville
  • Summit CS
  • Syracuse
  • Tooele City
  • Tooele CS
  • Transit Auth. DPS
  • Tremonton City
  • Uintah CS
  • Univ. of Utah DPS
  • Utah Atty General's Office
  • Utah CS
  • Utah Highway Patrol DPS
  • Utah Transit Auth. PSD
  • Vernal City
  • Washington DPS
  • Wayne CS
  • Weber CS
  • Weber State Univ.

Overview Page|States Map 

Vermont

Updated: 7/1/2014 - Print the Vermont entry.

Statutes and Court Rules

Vermont has a statute requiring electronic recording of custodial interrogations. 

Citation: 13 V.S.A., chapter 182, subchapter 3, Law Enforcement Practices, §5581, Sections 4 and 5 (2014).

General Rule: An audio and video recording shall be made of the complete interrogation of persons in custody in a place of detention concerning the investigation of homicide or sexual assault.  Law enforcement shall strive to simultaneously record both the interrogator and the person being interrogated. §(a)(b).

Exceptions: Exigent circumstances; the persons’ refusal to be recorded; a reasonable belief that the person did not commit a homicide or sexual assault; the safety of the person or protection of his or her identity; equipment malfunction. §(c) (1).

Consequences of unexcused failure to record: If the prosecution does not make a recording as required, the prosecution shall prove by a preponderance of the evidence that one of the exceptions applies.  If the prosecution does not meet the burden of proof, the evidence is still admissible, but the court shall provide cautionary instructions to the jury regarding the failure to record the interrogation. §( c)(2).

Preservation: None given.

Effective date: July 1, 2015. §6.

Law Enforcement Advisory Board (LEAB). Effective upon passage, the LEAB shall develop a plan for implementation of the electronic recording act. §6. The LEAB, in consultation with practitioners and experts in recording interrogations, shall inventory the current recording equipment available in Vermont; develop funding options regarding how to equip adequately law enforcement with necessary recording devices; and develop recommendations for expansion of recording to questioning by a law enforcement officer reasonably likely to elicit an incriminating response from the subject regarding any felony offense. §5(b). On or before October 1, 2014, the LEAB shall submit a written report to the Senate and House Judiciary committees with its recommendations. §5(c).

    Background Information:

    • In December 2007, a Report of the Eyewitness Identification and Custodial Interrogation Study Committee was submitted to the Vermont House and Senate Committee on Judiciary. The committee's recommendations relating to custodial interrogations were (Part IV, p. 5):
      • The Committee recommends that custodial interrogations in felony investigations, wherever practicable, should be video and audiotaped.

      • The Committee recommends that custodial interrogations in felony investigations, wherever at all possible shall at a minimum, be audiotaped. This recommendation takes into account the reality that a person of interest in an investigation may have to be interviewed out in the field.

      • The Committee realizes that not all the law enforcement agencies in Vermont currently have video and audiotaping capabilities. A funding source needs to be found to enable all agencies to have and maintain audio and audio-videotaping capacity for custodial interrogations in felony investigations.

    • In June 2010, the Vermont legislature adopted H. 470 §238d, containing the following resoultion:

      “(a) It is the intent of the general assembly that on and after July 1, 2012, a law enforcement agency shall make an audio or an audio and visual recording of any custodial interrogation of a person when it is conducted in a place of detention after the person is arrested in relation to the investigation or prosecution of a felony.

      “(b) The Vermont Law Enforcement Advisory Board [LEAB] shall develop a proposal for implementation of this section and present it to the senate and house committees on judiciary, the house committee on corrections and institutions, and the senate committee on institutions no later than January 15, 2011. The proposal shall address the costs associated with purchasing, installing, and maintaining audio and visual recording as required by this section.

      “(c) In the first year of the 2011-2012 biennium, the senate and house committees on judiciary shall consider the proposal required by subsection (b) of this section for the purpose of enacting statutes by the date of adjournment in 2012 to implement a plan for audio and visual recording of any custodial interrogation of a person when it is conducted in a place of detention after the person is arrested in relation to the investigation or prosecution of a felony.”

       
    • The Law Enforcement Advisory Board’s Summary Report:

      The LEAB consists of various state and local public officials, and a representative of the United States Attorney for Vermont. The Board appointed a Working Group, consisting of representatives of the state and local police and the Attorney General, to make recommendations regarding Section 238d. In January 2011, the Board sent its Summary Report to the Commissioner of Public Safety, the Governor, and the General Assembly. (Summary Report 2010, January 18, 2011.)

       
    • The Working Group’s findings and recommendations as to Section 238d.  The Board’s Report includes the findings and recommendations of the Working Group, and a Best Practices Statement, as to recording custodial interrogations. The Working Group found –

      “Audio and visual recording of custodial interrogations   whenever practicable is a best practice that should be adopted by all VT law enforcement agencies.”

       

    The Group also found that information obtained from an unrecorded custodial statement:

    “…should not be summarily excluded from evidentiary admissibility but should be retained for its probative value…and subject to court review at hearing on a defense motion to exclude, if appropriate, to ensure the integrity of the interrogation process and the preservation of rights.”

    • The Working Group’s proposed Best Practices Statement, Appendix D to the Report, provides:

      General rule: “Any custodial interrogation of a person, who is in a fixed place of detention and who, at the time of the interrogation, is suspected of having committed a felony offense should be electronically recorded in its entirety.” §1. Where practicable, any custodial interrogation of a felony suspect outside a fixed place of detention should be electronically recorded in its entirety. §2. The recording may be either audio or audio-video. “The latter is recommended. Law enforcement officers are encouraged, if videotaping, to position the camera to capture the suspect’s face.” §5a, 6. “Law enforcement officers should continue to prepare written summaries of custodial questioning, and continue to obtain written statements from suspects.” §6.

      Exceptions: The suspect refuses to speak if recorded, and the refusal should be documented by electronic recording or a signed written statement; access to recording equipment is not reasonably available while the suspect is detained; the equipment malfunctions and replacement equipment is not reasonably available; the officers in good faith fail to record because they inadvertently fail to operate the equipment properly, or without their knowledge the equipment malfunctions or stops operating; the officers reasonably believe the crime is not a felony; or exigent circumstances make electronic recording impossible or impractical. §4.

      Consequences of failure to record: There is no enforcement mechanism provided, or consequence for failure to adopt or to comply with the Statement.

      Preservation: The recording should be preserved until a conviction is final and all direct and collateral appeals are exhausted, or prosecution for the offense is barred by law. §3.

       
    • The legislature has not taken further action with regard to the LEAB Report.
       
    • Several years ago a training manual dealing with electronic recording of custodial interrogations was prepared for Vermont agencies by an outside agency.   Officials of the Vermont Police Academy (VPA) and Vermont Criminal Justice Training Council (CJTC) have held training sessions for Vermont police and sheriff officers regarding recording custodial interrogations, in accordance with the manual.  Officials of the CJTC and VPA are not aware of a mechanism in place to track compliance with the manual, or of any survey seeking information about compliance, hence they do not know which departments record and which do not, or the crimes that trigger recording, or related regulations.  A state official has informed us that recording practices in Vermont vary from county to county, including agencies that do not record their interviews unless an oral confession is obtained, whereupon  the confession is recorded.

  • Commentary: Because the Vermont legislature did not take further action pursuant to its June 2010 resolution, there is no requirement that law enforcement personnel make electronic recordings of custodial interrogations of suspect of crimes other than homicides and sexual assaults.
     
  • A Vermont Supreme Court case:

In State v. Gorton, 548 A.2d 419 (1988), the Supreme Court said:

“Defendant also argues that this Court should interpret Chapter 1. Article 10 of the Vermont Constitution to require police officers to tape-record inculpatory statements that a criminal suspect makes while in custody….This Court has never previously held that the Vermont Constitution mandates tape-recording of a suspect’s voluntary statements as a requirement of due process, nor does our reading of the Vermont Constitution find an support for the defendant’s position.  The most appropriate means of prescribing rules to augment citizens’ due process rights is through legislation. [Citing case.]  In the absence of legislation, we do not believe it appropriate to require, by judicial fiat, that all statements taken of a person in custody be tape-recorded.” 

Departments we have identified that presently record custodial interrogations of suspects of crimes other than homicides and sexual assaults:
  • Bennington
  • Norwich
  • Rutland
  • Rutland CS

Overview Page|States Map 

Virginia

Updated: 4/11/2014 - Print the Virginia entry.

Statutes and Court Rules

Virginia has no statute or court rule relating to recording.

Departments we have identified that currently record:
  • Alexandria
  • Blacksburg
  • Campbell CS
  • Chesterfield County
  • Clarke CS
  • Fairfax County
  • Loudoun CS
  • Norfolk
  • Patrick CS
  • Radford City
  • Richmond
  • South Boston
  • Stafford CS
  • Virginia Beach
  • Virginia Tech

Overview Page|States Map 

Washington

Updated: 4/11/2014 - Print the Washington entry.

Statutes and Court Rules

Washington has no statute or court rule relating to recording.

Departments we have identified that currently record:
  • Adams CS
  • Arlington
  • Bellevue
  • Bellingham
  • Bothell
  • Buckley
  • Clark CS
  • Columbia CS
  • Cowlitz CS
  • Ellensburg
  • Enumclaw
  • Everett
  • Federal Way
  • Ferndale
  • Grandview PD
  • Kennewick
  • Kent City
  • King CS
  • Kirkland
  • Kittitas CS
  • Klickitat CS
  • Lewis CS
  • Lynden
  • Mercer Island
  • Mount Vernon
  • Pierce CS
  • Port Angeles
  • Prosser
  • Quincy
  • Redmond
  • Snohomish CS
  • State Patrol
  • Sunnyside
  • Thurston CS
  • Toppenish
  • Univ. WA
  • Walla Walla
  • Washougal
  • Whatcom CS
  • Yakima CS
  • Yakima

Overview Page|States Map 

West Virginia

Updated: 4/11/2014 - Print the West Virginia entry.

Statutes and Court Rules

West Virginia has no statute or court rule relating to recording.

  • A Supreme Court of Appeals case.

In State v. Kilmer, 439 S.E.2d 881, 893 (W. Va. 1993), the court said:

“… In refusing to expand the Due Process Clause of the West Virginia Constitution, we reiterate our position espoused in Nicholson [174 W.Va. 573, 328 S.E.2d 180 (1985)], that it would be the wiser course for law enforcement officers to record, either by videotape or by electronic recording device, the interrogation of a suspect where feasible and where such equipment is available, since such recording would be beneficial not only to law enforcement, but to the suspect and the court when determining the admissibility of a confession. However, we decline to establish an absolute rule requiring such recording.”

Departments we have identified that presently record:
  • Charles Town
  • Clarksburg
  • Huntington
  • Monongalia CS
  • Morgan CS
  • Morgantown
  • Wheeling

Overview Page|States Map 

Wisconsin

Updated: 7/1/2014 - Print the Wisconsin entry.

Statutes and Court Rules

Wisconsin has both a 2005 court rule and a statute on recording.

  • In 2005, the Wisconsin Supreme Court exercised its supervisory power to require that all custodial interrogations of juveniles be recorded. State v. Jerrell, 699 N.W.2d 110,120-33 (Wis. 2005).

  • Shortly thereafter, the Wisconsin legislature enacted a statute requiring that all departments record custodial interviews of persons suspected of felonies. Wis. Stat. Ann. §§968.073 & 972.115 (2005).

    • Statement of policy: It is the policy of this state to make an audio or audio – visual recording of a custodial interrogation of a person suspected of committing a felony, unless a condition specified in the statute applies, or good cause is shown for not making an audio or audio and visual recording of the interrogation. §968.073(2).

    • General rule: Custodial interrogations regarding felonies shall be electronically recorded by both audio and video. "Custodial interrogation" means an interrogation by a law enforcement officer or an agent of a law enforcement agency of a person suspected of committing a crime from the time the suspect is or should be informed of his or her rights to counsel and to remain silent until the questioning ends, during which the officer or agent asks a question that is reasonably likely to elicit an incriminating response and during which a reasonable person in the suspect's position would believe that he or she is in custody or otherwise deprived of his or her freedom of action in any significatn way." The officer is not required to obtain the suspect’s consent to having a recording made. §972.115(2)(a)-(b). 

    • Exceptions: The conditions which excuse recording include: the suspect refused to respond or cooperate if a recording was made, and the officer made a recording of the suspect’s refusal; the officer in good faith failed to make a recording because the equipment did not function; the officer inadvertently failed to operate the equipment properly; without the officer’s knowledge, the equipment malfunctioned or stopped operating; exigent public safety circumstances existed that prevented the making of a recording, or rendered making a recording infeasible; the officer conducting or observing the interrogation reasonably believed at the outset that the offence for which the suspect was taken into custody or was being investigated was not a felony. §972.115 (2)(a)(1)-(6).

    • Consequences of unexcused failure to record: If a statement made by a defendant during a custodial interrogation is admitted into evidence in a felony jury trial, and the court finds that none of the statutory conditions applies that excuse recording, or that no good cause exists for not providing an instruction, “the court shall instruct the jury that it is the policy of this state to make an audio or visual recording of a custodial interrogation of a person suspected of committing a felony, and that the jury may consider the absence of an audio or visual recording of the interrogation in evaluating the evidence relating to the interrogation and the statement in the case..” In a felony bench trial, the court may consider the absence of a recording in evaluating the evidence relating to the interrogation and the statement. §972.115 2(a)-(b).

    • Preservation: None given.
     
  • Commentary

    The statute requires electronic recording of both adults and juveniles when custodial interrogations relate to felonies. However, as to juveniles, the Jerrell case requires recording when the questioning relates to either felonies or misdemeanors. See State v. Fairconatue, 773 N.W.2d 226 ¶22 n.6 (Wis. Ct. App. 2009). Both the Jerrell case and the statute require that, to trigger the recording requirement, the person be in custody when the questioning occurs, but neither requires that the person be in a place of detention.

Overview Page|States Map 

Wyoming

Updated: 4/11/2014 - Print the Wyoming entry.

Statutes and Court Rules

Wyoming has no statute or court rule relating to recording.

    • The Gillette, Wyoming News Record, April 28, 2010:

      “The Campbell County Sheriff’s Office has begun recording interrogations, a move agency officials say was influenced by the outcome of a molestation trial.  Video cameras have been installed in the agency’s four interview rooms and a polygraph room...In the past, the Sheriff’s Office has come under fire for not taping interviews.  In many cases, there was no video or audio recording of what was said during an interview – a practice defense attorneys often attacked to try to discredit deputies’ testimony.  The issue came to the forefront in September 2008 when a Gillette woman was found not guilty of molestation charges after testifying that her confession had been coerced…The verdict forced the Sheriff’s Office to re-examine its policy.  After months of internal discussion, officials issued a directive requiring deputies to record every interview when practical,…”  It’s kind of a trend in law enforcement,” [a Sheriff’s Department Lt.] said.  “It’s what the courts want.  It’s what the prosecutors want…In a poll of the state’s 23 sheriff’s offices, The News Record found that Campbell County was the only department that didn’t regularly record what suspects say….Campbell County Sheriff … hopes the new video system will eliminate any questions jurors have about what was said during an interview. I think they’re a great addition to the department, [the Sheriff] said.”

       
  • A Supreme Court of Wyoming case.

In Lara v. State, 25 P.3d 507, 511 (Wyo. 2001), the Supreme Court said:

“The district court noted that the problems that came up in the suppression hearing, as well as in this appeal, could be avoided if tape recorders were used in interviews. The district court also noted that the county attorney’s office repeatedly had been reminded that it would be a good idea to tape interviews:

‘Instead they want to do it some other way and they expose themselves in every case to the–to the allegations that–that something was left out or misinterpreted or incorrectly emphasized, and they have to end up explaining to me and to the jury why they don’t do it. Their explanations don’t make sense to me, but I don’t–it’s not my prerogative to tell them they have to do that.’

“…we agree with the district court that tape-recorded interviews do leave far fewer loose ends to be tied up and in many, if not most, instances would be a well-advised protocol to follow.”

Departments we have identified that currently record:
  • Campbell CS
  • Casper
  • Cheyenne
  • Cody
  • Gillette City
  • Laramie
  • Laramie CS
  • Lovell
  • Park CS

Overview Page|States Map 

Federal

Updated: 7/2/2014 - Print the Federal entry.

Federal agents are not required to notify or obtain consent from persons who are being recorded. 18 U.S.C. §2511, (2)(c)-(e) (2002).

Air Force

Citation: Instruction 71-118V4 of the Air Force Office of Special Investigations (AFOSI) Manual, General Investigative Methods (AFOSIMAN 71-124), effective October 2009. “This manual provides policy, guidance, and procedures necessary to comply with laws and higher directives, ensure health and safety, standardize investigative operations, and insure investigate sufficiency for general investigative methods common to the [AFOSI]. Compliance is mandatory.”

General rule: The Air Force Judge Advocate General’s Online News Service, August 26, 2009, states: “AFOSI will begin recording all subject interviews beginning 1 October 2009. The current draft policy requires DVD recording of all subject interviews, with limited exceptions, and the optional recording of witness and victim interviews.” The regulation provides that required recordings of subject interviews shall be electronically recorded by audio or video equipment (§4.18); the entire interview session must be recorded (§4.18.2.4); the recorders must utilize DVD recording media that yields high quality video and audio recordings (§4.18.9); the consent of the subject is not required if the interview takes place in a police station or an AFOSI interview room or vehicle; signs must be posted in AFOSI waiting areas and outside interview rooms, stating that all persons are subject to electronic monitoring (§4.18.4); and if the person requests electronic recording be stopped, agents “will advise the interviewee that recording ensures an objective, true and accurate record of the interview, and therefore, continuing to record may be to the interviewee’s benefit,” but if the interviewee persists in the request, the recording equipment is to be stopped (§4.18.4).

The Department of the Air Force Regulations provide: “Electronically recording interviews refers to both video and audio recording.”  §4.18.  “Electronic recording equipment will include audio and video recording capabilities, and this equipment must meet the minimum technical standards contained in paragraph 5.16.9.” §4.18. “Recording equipment should be left on throughout the entire interview session.” §4.18.2.4  “While Federal law allows for recording interviews made without the expressed consent of the interviewee, not all states allow for the use of such recordings. Coordinate with the local SJA or, depending on circumstance, with the civilian prosecuting authority to ensure compliance with local laws….at a minimum, signs shall be posted in the waiting areas and outside of interview rooms.  Signs will provide sufficient notice of electronic monitoring.  The signs should read:  Attention:  All persons are subject to audio or audio and video monitoring while in this facility.” §4.18.4.

Consequences of unexcused failure to record: None given.

Exceptions: ”If an interviewee requests electronic recording be stopped, agents will comply with the request; however, before stopping the recording, agents will advise the interviewee that recording ensures an objective, true, and accurate record of the interview, and therefore, continuing to record may be to the interviewee’s benefit.  If the interviewee still indicates he or she wants the equipment turned off, the recording equipment will be turned off.  §4.18.4.2.

Preservation: All copies of recorded interviews shall be destroyed after the case is adjudicated. Copies of recorded interviews will not be sent to the AFOSI File Repository, except they may be retained for training purposes. §4.18.8

Army and Military Police

The Code of Federal Regulations governing Military Police Investigation provides (32 C.F.R. §637.21):

“Recording interviews and interrogations. The recording of interviews and interrogations by military police personnel is authorized, provided the interviewee is on notice that the testimony or statement is being recorded. This procedure is a long accepted law enforcement procedure, not precluded by DA policies pertaining to wiretap, investigative monitoring, and eavesdropping activities.”

In an article published in The Army Lawyer, DA PAM 27-50-173, (May 1987), entitled Will the Suspect Please Speak Into the Microphone? (pages 46-51), Captains R. Troxell and T. Bailey of the U. S. Army Trial Defense Service, proposed enactment of a rule applicable to military police and the Criminal Investigation Division:

“Many court-martial convictions are based in large part upon confessions or admissions obtained by the military police or the Criminal Investigation Division (CID). These confessions or admissions appear in court, at best, as written statements explained by the recollections of the participants, and at worst, as simply recollections. These recollections often create inaccurate, incomplete, and conflicting accounts, which in turn lead to disputes regarding rights warnings, waiver, voluntariness, and the contents of the interview. These disputes can, in large part, be eliminated by the objective record of a tape recording of the entire interview, including rights warnings. More importantly, a tape recording will provide the court-martial with a much better opportunity to determine the truth. Consistent with our search for the truth, the following rule is proposed:

Rule. Tape Recording Suspect Interviews.

"(a) All interviews of suspects by members of the military police or the Criminal Investigation Division, including rights advisement and waiver of rights, shall be tape recorded, unless there exist exigent circumstances which would prevent recording. Such recordings will be preserved for trial.

* * *

“The proposed rule will aid the courts in accurately determining whether there has been compliance with the warning and waiver requirements of Article 31 and Miranda v. Arizona; aid the courts in accurately determining the contents of an admission or confession; save the government time, effort, and expense; allow statements to be redacted prior to trial so as not to prejudice the members; and aid in effective interviewing of suspects.

“The first two advantages are by far the most important. They demonstrate that tape recording creates truth where there was uncertainty by replacing the uncertain medium of biased human perception with the objective record of a tape recorder. All evidence regarding rights warnings, waiver, subsequent invocation or lack thereof, coercion, promises, contents of statements, etc., will be accurately recorded, thus providing a court with a complete record for dispute resolution. Without question, the reliability and credibility of a confession or admission are better judged by listening to a tape than by listening to the recollections of participants. This accuracy is especially important in the case of a suspect interview because an objective electronic recording best protects a suspect’s constitutional and statutory rights. Clearly, a tape recording is a substantial advantage in a court’s search for truth.

* * *

“Whether or not the failure to record violates constitutional or military due process, requiring suspect interviews to be tape recorded seems consistent with the prevailing notions of fundamental fairness on which the due process clause is based. Therefore, tape recording of suspect interviews should be required.

* * *

“The proposed rule is designed to offer the court a complete look at the circumstances and statements made in a suspect interview, the crucial evidence upon which many convictions are based. It is not designed to allow an accused the opportunity to lie on the witness stand. Therefore, consistent with Military Rule of Evidence 304(b)(1), the rule would permit a statement to be used to impeach by contradiction the in-court testimony of the accused and in a later prosecution against the accused for perjury, false swearing, or for making a false official statement.

“With modern technology available to tape record all suspect interviews, there appears no strong argument against, and many for, adoption of a rule requiring such recording…To fail to adopt this rule is to choose uncertainty over certainty, to choose possible injustice over justice. ‘For any time an officer unimpeded by an objective record distorts, misinterprets, or overlooks one or more critical events, the temple may fall. For it will be a house built upon sand.’” (Citing Kamisar (1977), see Part 6 below).

Commerce

In the publication of the Office of Inspector General, under the subject Frequently Asked Questions About OIG Investigations, it is stated:

“Under the Inspector General Act of 1978, as amended, OIG is authorized to carry out both investigations and audits to ‘promote economy, efficiency, and effectiveness in the administration of, and … prevent and detect fraud and abuse in … [the Department’s] programs and operations.’ Through its investigative and audit findings and recommendations, OIG helps protect and strengthen Departmental programs and operations.

“As part of our mission, we conduct investigations that involve employees, management officials, and affected Departmental programs and operations. Investigations are typically administrative in nature, though a small proportion pose criminal implications for employees.

“This set of Frequently Asked Questions (FAQs) is intended to provide Department of Commerce employees and managers with helpful information regarding the nature and scope of OIG investigative activities, as well as their obligations and rights in connection with OIG investigations. In the interest of transparency, we’re providing these FAQs to promote greater understanding of our processes.”

* * *

“Q.  How is an OIG interview memorialized?

“A.  Under Departmental directives DAO 207-10 and DOO 10-13, OIG investigators have authority to take sworn written statements (i.e., affidavits). Additionally, pursuant to OIG policy, investigators may audio or video-record interviews. Recording is to the benefit of all parties, as it ensures a definitive record exists of both what was asked and the information provided in response. Pursuant to the above-referenced directives, employee cooperation extends to participating in audio/video-recorded interviews. As noted above, an employee's management can become involved if the employee declines to participate in a recorded interview."

Defense

DOD Directive No. 3115,09, dated October 11, 2012, with change effective November 15, 2013, is in part as follows: 

        Subject:: DoD Intelligence Interrogations, Detainee Debriefings, and Tactical Questioning References: See Enclosure 1

1. PURPOSE. In accordance with the authority vested in the Secretary of Defense (SecDef)  under titles 10 and 50 of the United States Code (U.S.C.)…to reflect changes in the law and DoD policy concerning the electronic recording of strategic intelligence interrogations, the use of contract interrogators, and the reading of Miranda warnings to foreign nationals who are captured or detained outside the United States as enemy belligerents.

   *    *    *

2. APPLICABILITY. This Directive applies to:

 a. OSD, the Military Departments, the Office of the Chairman of the Joint Chiefs of Staff (CJCS) and the Joint Staff, the Combatant Commands, the Office of the Inspector General of the Department of Defense (DoD IG), the Defense Agencies, the DoD Field Activities, and all other organizational entities within the DoD (hereinafter referred to collectively as the “DoD Components”).

b. DoD military personnel, DoD civilian employees, and DoD contractor personnel to the extent incorporated in their contracts, who conduct or support intelligence interrogations, detainee debriefings, or tactical questioning.

c. Non-DoD personnel who agree, as a condition of permitting them access to conduct intelligence interrogations, debriefings, or other questioning of persons detained by the DoD, to comply with its terms.

d. Law enforcement, counterintelligence, and credibility assessment personnel who conduct interrogations or other forms of questioning of persons in DoD custody primarily for foreign intelligence collection purposes…

*    *    *

4. POLICY. It is DoD policy that:

a. DoD military personnel, DoD civilian employees, and DoD contractor personnel shall conduct intelligence interrogations, detainee debriefings, and tactical questioning of individuals in U.S. or foreign custody in accordance with applicable law, the requirements in this Directive, and implementing plans, policies, orders, directives, and doctrine developed by the DoD Components and approved by the Under Secretary of Defense for Intelligence (USD(I)).

   *    *    *

REQUIREMENTS FOR VIDEOTAPING OR ELECTRONICALLY RECORDING STRATEGIC INTELLIGENCE INTERROGATIONS

1. The requirements set forth in this enclosure pertain only to strategic intelligence interrogations conducted at a theater-level detention facility. DoD Components that elect to record intelligence interrogations, detainee debriefings, or other questioning not subject to the requirements of this enclosure are responsible for marking, protecting, storing, and disposing of these electronic recordings in accordance with the requirements of section 12 of Enclosure 4.

2. The requirement to videotape or otherwise electronically record strategic intelligence interrogations shall be implemented in accordance with the standard operating procedures outlined in Army Memorandum (Reference (ao)) that were developed pursuant to section 10 of Enclosure 2 of this Directive; the implementing plans, policies, orders, directives, and doctrine developed by the DoD Components; the material above the signature of this Directive; and the requirements in this enclosure.

a. Use of Standardized Procedures. Disparate standard operating procedures could create interoperability issues and data storage and retrieval problems. Therefore, each theater-level detention facility will use the standard file-naming convention and standard archiving procedures specified in Reference (ap) to ensure consistency.

b. Equipment Failures. Recording technicians will inspect the recording equipment prior to each interrogation session to ensure that it is functioning properly. If the recording equipment fails for any reason (e.g., mechanical malfunction, power outage), backup equipment (e.g., a battery-powered camcorder) will be used. If the backup equipment fails, the interrogation center commander may authorize the unrecorded interrogation of individual detainees on a case-by-case basis when the information expected to be collected from the detainee is necessary to support ongoing or imminent military operations or to save human life.

Background information 

In the fiscal year 2010, the National Defense Authorization Act providedthat “each strategic intelligence interrogation of any person who is in the custody or under the effective control of the Department of Defense or under detention in a [DoD] facility is videotaped or otherwise electronically recorded.” The “term ‘strategic intelligence interrogation’ means an interrogation of a person . . . conducted at a theater-level detention facility.” The DoD Judge Advocate General is directed to develop related guidelines.  (Public Law 111-84, Section 1080.)

On May 10, 2010, the Deputy Secretary of Defense issued a Directive-Type Memorandum entitled “Videotaping or Otherwise Electronically Recording Strategic Intelligence Interrogations of Persons in the Custody of the Department of Defense,” applicable to Department of Defense agencies. (DTM 09-031.) The expiration date was extended to May 2012.

General rule: It is DoD policy that, “Subject to the waiver and suspension provisions in Attachment 2 of this DTM, an audio-video recording of each strategic intelligence interrogation of any person who is in the custody or under the effective control of the Department of Defense or under detention in a DoD facility, conducted at a theater-level facility.” The DTM is to be implemented by the Heads of DoD Components “as soon as possible but not later than 180 days of its issuance.” Attachment 3, par. 3a.

Applicability.  Applicable to “OSD [Office of the Secretary of Defense], the Military Departments, the Chairman of the Joints Chiefs of Staff, the Combatant Commands, the Office of the Inspector General of the [DoD], the Defense Agencies, the DoD Field Activities, and all other organizational entities within the [DoD]”; to “DoD military personnel, DoD civilian employees, and DoD contractor personnel…who conduct or support strategic intelligence interrogations”; to “Non-DoD personnel who agree, as a condition of permitting them access to conduct strategic intelligence interrogations, to comply with its terms, including other U.S. Government agency personnel, interagency mobile interrogation teams, and foreign government personnel”; and to “DoD and non-DoD law enforcement personnel and counterintelligence personnel who conduct or support strategic intelligence interrogations.”

Exceptions: “…excludes from this requirement members of the Armed Forces engaged in direct combat operations and DoD personnel conducting tactical questioning.” The DTM contains provisions relating to equipment failures, and for waivers and suspensions of the requirement. Attachment 2, pars. f, i and j.

Consequences of unexcused failure to record: None given.

Preservation: Electronic recordings “shall be disposed of only in accordance with a disposition schedule deployed by the USD [Under Secretary of Defense for Intelligence] and approved by the Archivist of the United States. If a recording contains any credible evidence of a suspected or alleged violation of applicable law or policy, it shall be retained as evidence to support any investigation and disciplinary or corrective action.”

Expiration: DTM 09-031 expired effective May 2012, and has not been renewed.

•  An article byMajor Edward W. Berg, Judge Advocate, U.S. Army, Videotaping Confessions: It’s Time, 207 Military Law Review 253 (2011) (footnotes omitted):

“This article will argue that the Department of Defense (DoD) should adopt a unified policy requiring videotaping custodial interrogations of felony level suspects by the criminal investigative branches of each service, i.e., Criminal Investigative Division (CID) for the Army, Naval Criminal Investigative Service (NCIS) for the Navy and Marine Corps, and Office of Special Investigations (OSI) for the Air Force. This requirement should extend to recording all aspects of the custodial interrogation, including the initial rapport building phase, the rights-warning under Article 31, Uniform Code of Military Justice (UCMJ), and Miranda v. Arizona, as well as the entire interview session.  Where military exigencies do not permit videotaping, other means of electronic recording should be used.  Such a policy should also be coupled with appropriate funding for the required equipment and training.” (Pages 254-55.)

“The evolution in civilian criminal law toward videotaping interrogations supports the proposition that DoD can and should adopt such a policy.”  (Page 260.)

“The DoD should adopt a unified policy requiring videotaping custodial interrogations of felony-level crimes by the criminal investigative branches of each service, i.e., CID, NCIS, and OSI.  This requirement should extend to recording all aspects of the custodial interrogation, to include the initial rapport building phase, the rights-warning under Article 31, UCMJ, and Miranda v. Arizona, as well as the entire interview session.  Where military exigencies do not permit videotaping, other means of electronic recording should be used, such as audio recording with a voice-recorder.  A policy mandating videotaping should be coupled with the appropriate funding for the required equipment and training.”  (Page 267.) 

“[In addition to the benefits mentioned above], there are additional and more specific benefits to mandated videotaping of custodial interrogations.  These benefits include efficiency, improving investigative agents’ techniques, enhancing agents’ testimony, and ease of implementation.”  (Page 267.)

Federal Commission on Military Justice

In October 2009, the Commission released a report containing recommendations “to advance principles of justice, equity, and fairness in American military justice.” http://www.wcl.american.edu/nimi/cox_commission.cfm. The report includes the following recommendation (pp. 3,12):

“Require military law enforcement agencies to videotape the entirety of custodial interrogations of crime suspects at law enforcement offices, detention centers, or other places where suspects are held for questioning, or, where videotaping is not practicable, to audiotape the entirety of such custodial interrogations.” 

Homeland Security

•  Immigrations and Customs Enforcement 

By letter dated August 7, 2012, in response to my FOIA request, an officer of the U. S. Immigration and Customs Enforcement produced a cover page entitled Department of Homeland Security, U. S. Immigration and Customs Enforcement, Office of Investigations,  Interviewing Techniques Handbook, OI HB 10-03, April 28, 2010, and pages 30 to 34, whichcontain the following provisions, among others:

“16.1.  Custodial Interviews.  Electronic recording of custodial (see Section 4.5) interviews may further an investigation and facilitate the successful outcome of a prosecution because they may obviate challenges to the voluntary character of self-incriminating statements.  They further establish that the interviewing SA properly advised the individual being interviewed of his or her rights against self-incrimination (Statement of Rights) and that the individual understood such advisement and waived his or her right without coercion or duress.  ASAs should be mindful that all such recordings are discoverable.  Therefore, electronic recordings of custodial interviews should be controlled, stored, handled, transmitted, distributed, and disposed of in accordance with OI’s policy on evidence handling.

“Confidential consultations between the individual being interviewed and his or her attorney must not be recorded.

“16.1.1  When Custodial Interviews May Be Recorded.  Electronic recordings of custodial interviews may be used on a case-by-case basis when a determination has been made that special circumstances (see Subsection B below) exist or when otherwise determined to be in the best interest of ICE, subject to authorization of the SAC.  SAC’s are authorized to delegate this authority to subordinate officials within their AOR.

“The approving official may authorize the electronic recording of custodial interviews in any of the following instances:

A. The approving official has made a determination that an electronic recording is in the best interest of ICE; and/or

B. The approving official recognizes that one or more of the following special circumstances exist:

1) A juvenile (defined in Section 4.14) needs to be interviewed;

2) The individual refuses to be interviewed unless the interview is recorded;

3) The individual’s apparent ability to comprehend is questionable;

4) The individual cannot read or write, or his or her knowledge of the language used to conduct the interview may be challenged;

5) An investigation has produced limited evidence and the statements by the individual being interviewed are likely to be essential to the prosecution; and/or

6) Local U.S. Attorney policies require the electronic recording of interviews.

“Whenever possible, SAs should seek advice from their local OCC prior to conducting an electronic recording of an interview in an investigation that has no involvement by the U.S. Attorney’s Office.  In cases where the investigation has been assigned an AUSA, SAs should seek advice from the assigned AUSA.

There follow in paragraphs 16.1.2 to through 16.2, and section d of paragraph 16.3, which contain instructions as to the preamble to recordings; handling objection to recordings; and concluding recordings.

•  Secret Service 

By letter dated August 24, 2012, in response to my FOIA request,  an officer of the Department of Homeland Security, United States Secret Service produced, a document headed United States Secret Service, Directives Division, “Subject: Suspect Interviews and Statements.  “This directive is in effect until superceded.”  The attached two redacted pages contain the following:

“Audio and Video Monitoring Devices. 

“Interview rooms equipped with audio and/or video monitoring devices will be posted with warning signs in English, and Spanish if appropriate, advising subjects of the presence of these devices. Subjects who do not speak or understand English must be given this advisory statement in a language understandable by them…  Offices needing warning signs or replacement warning signs should contact ISD with their request.  Since  the intended purpose of these devices is for SAFETY REASONS, no Attorney-client conversations should be monitored….”

“Use of Video Recorded Statements.

“Unless authorized by INV or OPO [Office of Protective Operations] depending on the type of interview, no statements will be recorded using video.”

“Use of Audio Recorded Statements.

“Audio recorded statements may be taken with a suspect’s permission without prior approval.”

Internal Revenue Service

On May 15, 2008, the Internal Revenue Service added §9.4.5.8 to the Internal Revenue Manual, under the section entitled “Criminal Investigations”:

“Right to Record Interview.

“1. An interrogation or conference may be recorded only by a stenographer who is an employee of the IRS. This rule may be waived by the special agent’s SSA. At the request of the IRS or witness, which includes a subject, the SSA may authorize the use of a stenographer employed by a US Attorney, a court reporter of the US district court, a reporter licensed or certified by any state as a court reporter or to take depositions for use in a US district court. . . . If no stenographer is readily available, mechanical or electronic recording devices may be used to record statements by advising the witness, in advance of the use of the device (implied consent). If the witness objects, the interrogator will refrain from mechanically or electronically recording the statement. If the witness elects to mechanically or electronically record the conversation, the IRS will make its own recording.

“2. A witness or subject will be permitted to hire a qualified reporter as described above to be present at his/her expense to transcribe testimony, provided that the IRS can secure a copy of the transcript at its expense or record the testimony using a mechanical or electronic recording device or its own stenographer or reporter. However, the IRS retains the right to refuse to permit verbatim recording by a non-IRS reporter or stenographer on the grounds that disclosure would seriously impair Federal tax administration.”

http://www.irs.gov/irm/part9/irm_09-004-005.html.

  • Commentary: This provision does not mandate recordings of interrogations, but rather makes them permissible, and it does not provide consequences if an agent fails to record an interview.
Justice

Until recently, the Department of Justice (DOJ) investigatory agencies –Federal Bureau of Investigation (FBI), Drug Enforcement Agency (DEA), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) – did not require their agents to make electronic recordings of custodial interrogations of felony suspects.

On May 12, 2014, the Director of the Executive Office for United States Attorneys sent a memorandum to all United States Attorneys, all First Assistant U.S. Attorneys, Criminal Chiefs and Appellate Chiefs, Subject: New Department Policy Concerning Electronic Recording of Statements.  The full memorandum states:

Attached is a Memorandum from the Deputy Attorney General, outlining a new Department of Justice policy with respect to the electronic recording of statements. The policy establishes a presumption in favor of electronically recording custodial interviews, with certain exceptions, and encourages agents and prosecutors to consider taping outside of custodial interrogations. The policy will go into effect on Friday, July 11, 2014. Please distribute the Deputy Attorney General's Memorandum to all prosecutors in your office.

This policy resulted from the collaborative and lengthy efforts of a working group comprised of several United States Attorneys and representatives from the Office of the Deputy Attorney General, EOUSA, the Criminal Division, and the National Security Division, as well as the General Counsel, or their representatives, from the Federal Bureau of Investigation, the Bureau of Alcohol, Tobacco, Firearms and Explosives, the Drug Enforcement Administration, and the United States Marshals Service.

Earlier today during a conference call with all United States Attorneys, the Deputy Attorney General discussed the background of the policy and explained its basic terms. The policy will be the subject of training provided by the Office of Legal Education, including 2014 LearnDOJ training videos.

The attachment to this memorandum is a memorandum from the Deputy Attorney General, addressed to the Associate Attorney General and the Assistant Attorneys General for the Criminal Division, National Security Division, Civil Rights Division, Antitrust Division, Environment and Natural Resources Division, Tax Division, Civil Division, Director, Federal Bureau of Investigation, Administrator, Drug Enforcement Administration, Director, United States Marshals Service, Director, Bureau of Alcohol, Tobacco, Firearms and Explosives, Director, Bureau of Prisons, and all United States Attorneys.

The Subject of the memorandum is “Policy Concerning Electronic Recording of Statements.” The memorandum is in full as follows:

This policy establishes a presumption that the Federal Bureau of Investigation (FBI), the Drug Enforcement Administration (DEA), the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), and the United States Marshals Service (USMS) will electronically record statements made by individuals in their custody in the circumstances set forth below.

This policy also encourages agents and prosecutors to consider electronic recording in investigative or other circumstances where the presumption does not apply. The policy encourages agents and prosecutors to consult with each other in such circumstances

This policy is solely for internal Department of Justice guidance. It is not intended to, does not, and may not be relied upon to create any rights or benefits, substantive or procedural, enforceable at law or in equity in any matter, civil or criminal, by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person, nor does it place any limitation on otherwise lawful investigative and litigative prerogatives of the Department of Justice.

  • Presumption of Recording. There is a presumption that the custodial statement of an individual in a place of detention with suitable recording equipment, following arrest but prior to initial appearance, will be electronically recorded, subject to the exceptions defined below. Such custodial interviews will be recorded without the need for supervisory approval.

    • Electronic recording. This policy strongly encourages the use of video recording to satisfy the presumption. When video recording equipment considered suitable under agency policy is not available, audio recording may be utilized.
       
    • Custodial interviews. The presumption applies only to interviews of persons in FBI, DEA, ATF or USMS custody. Interviews in non-custodial settings are excluded from the presumption.
       
    • Place of detention. A place of detention is any structure where persons are held in connection with federal criminal charges where those persons can be interviewed. This includes not only federal facilities, but also any state, local, or tribal law enforcement facility, office, correctional or detention facility, jail, police or sheriff s station, holding cell, or other structure used for such purpose. Recording under this policy is not required while a person is waiting for transportation, or is en route, to a place of detention.
       
    • Suitable recording equipment. The presumption is limited to a place of detention that has suitable recording equipment. With respect to a place of detention owned or controlled by FBI, DEA, ATF, or USMS, suitable recording equipment means:

      • an electronic recording device deemed suitable by the agency for the recording of interviews that,
         
      • is reasonably designed to capture electronically the entirety of the interview. Each agency will draft its own policy governing placement, maintenance and upkeep of such equipment, as well as requirements for preservation and transfer of recorded content. With respect to an interview by FBI, DEA, ATF, or USMS in a place of detention they do not own or control, but which has recording equipment, FBI, DEA, ATF, or USMS will each determine on a case by case basis whether that recording equipment meets or is equivalent to that agency's own requirements or is otherwise suitable for use in recording interviews for purposes of this policy.
       
    • Timing. The presumption applies to persons in custody in a place of detention with suitable recording equipment following arrest but who have not yet made an initial appearance before a judicial officer under Federal Rule of Criminal Procedure 5.

       
    • Scope of offenses. The presumption applies to interviews in connection with all federal crimes.
       
    • Scope of recording. Electronic recording will begin as soon as the subject enters the interview area or room and will continue until the interview is completed.
       
    • Recording may be overt or covert. Recording under this policy may be covert or overt. Covert recording constitutes consensual monitoring, which is allowed by federal law. See 18 U.S.C. § 2511(2)(c). Covert recording in fulfilling the requirement of this policy may be carried out without constraint by the procedures and approval requirements prescribed by other Department policies for consensual monitoring.
     
  • Exceptions to the Presumption. A decision not to record any interview that would otherwise presumptively be recorded under this policy must be documented by the agent as soon as practicable. Such documentation shall be made available to the United States Attorney and should be reviewed in connection with a periodic assessment of this policy by the United States Attorney and the Special Agent in Charge or their designees.

    • Refusal by interviewee. If the interviewee is informed that the interview 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.
       
    • Public Safety and National Security Exception. Recording is not prohibited in any of the circumstances covered by this exception and the decision whether or not to record should wherever possible be the subject of consultation between the agent and the prosecutor. There is no presumption of electronic recording where questioning is done for the purpose of gathering public safety information under New York v. Quarles. The presumption of recording likewise does not apply to those limited circumstances where questioning is undertaken to gather national security-related intelligence or questioning concerning intelligence, sources, or methods, the public disclosure of which would cause damage to national security.
       
    • Recording is not reasonably practicable. Circumstances may prevent, or render not reasonably practicable, the electronic recording of an interview that would otherwise be presumptively recorded. Such circumstances may include equipment malfunction, an unexpected need to move the interview, or a need for multiple interviews in a limited timeframe exceeding the available number of recording devices.
       
    • Residual exception. The presumption in favor of recording may be overcome where the Special Agent in Charge and the United States Attorney, or their designees, agree that a significant and articulable law enforcement puipose requires setting it aside. This exception is to be used sparingly.
     
  • Extraterritoriality.  The presumption does not apply outside of the United States. However, recording may be appropriate outside the United States where it is not otherwise precluded or made infeasible by law, regulation, treaty, policy, or practical concerns such as the suitability of recording equipment. The decision whether to record an interview - whether the subject is in foreign custody, U.S. custody, or not in custody - outside the United States should be the subject of consultation between the agent and the prosecutor, in addition to other applicable requirements and authorities.
     
  • Administrative Issues.

    • Training. Field offices of each agency shall, in connection with the implementation of this policy, collaborate with the local U.S. Attorney's Office to provide district-wide joint training for agents and prosecutors on best practices associated with electronic recording of interviews.
       
    • Assignment of responsibilities. The investigative agencies will bear the cost of acquiring and maintaining, in places of detention they control where custodial interviews occur, recording equipment in sufficient numbers to meet expected needs for the recording of such interviews. Agencies will pay for electronic copies of recordings for distribution pre-indictment. Post-indictment, the United States Attorneys' offices will pay for transcripts of recordings, as necessary.
     
  • Effective Date.  This policy shall take effect on July 11, 2014.

Announcing the new policy, Attorney General Eric Holder released a video message containing the following statement:

“Every day, in big cities and small towns across the country, hardworking prosecutors, agents, and investigators perform exceptional work in order to combat violent crime and other threats to the public. They approach this high-stakes work with the utmost integrity and dedication.

“The professionalism of our personnel gives us the confidence to be as transparent as possible about how we perform our work. We at the Department of Justice are committed to ensuring accountability and promoting public confidence in the institutions and processes that guide our law enforcement efforts.  Doing so not only strengthens the rule of law; it also enhances public safety – by building trust and fostering community engagement.

“That’s why we are announcing a new step to raise our already high standards of accountability.  The Department of Justice is instituting a sweeping new policy pertaining to interviews of individuals in law enforcement custody. This new policy, which will take effect on July 11th, creates a presumption that statements made by individuals in federal custody, after they have been arrested but before their initial appearance, will be electronically recorded. The policy applies in a place of detention that has suitable recording equipment, and it encourages video recording whenever possible and audio recording when video is unavailable. The policy also encourages agents and prosecutors to consider electronic recording in investigative or other circumstances not covered by the presumption.

“This presumption in favor of recording applies to statements made by individuals in the custody of the FBI, the DEA, the ATF, and the United States Marshals Service. It allows for certain exceptions—such as when the interviewee requests that the recording not occur or when recording is not practicable.

“Creating an electronic record will ensure that we have an objective account of key investigations and interactions with people who are held in federal custody. It will allow us to document that detained individuals are afforded their constitutionally-protected rights. And it will also provide federal law enforcement officials with a backstop, so that they have clear and indisputable records of important statements and confessions made by individuals who have been detained.

“This policy will not – in any way – compromise our ability to hold accountable those who break the law. Nor will it impair our national security efforts. On the contrary: it will reduce uncertainty in even the most sensitive cases, prevent unnecessary disputes, and improve our ability to see that justice can be served.

“Federal agents and prosecutors throughout the nation are firmly committed to due process in their rigorous and evenhanded enforcement of the law. This new recording policy not only reaffirms our steadfast commitment to these ideals – it will provide verifiable evidence that our words are matched by our deeds. And it will help to strengthen the robust and fair system of justice upon which all Americans depend – and which every American deserves.”

  • Background to the adoption of the new policy.

     
  • The 2006 DOJ proposed recording pilot program.  

°  In 2006, the DOJ investigatory agencies were asked to submit their recommendations to DOJ headquarters regarding the advisability of a one year pilot program of recording custodial interrogations in the District of Arizona, recommended by the United States Attorney for Arizona. His office had suffered a series of acquittals in cases in which alleged confessions had been taken by agents, using the customary method of note taking, followed by preparation of typewritten reports known as 302s, without making electronic recordings. All three agencies, FBI, DEA and ATF, responded that for various reasons they were opposed to the program.

°  In an article published in 2008, I analyzed their reasons for opposition, and found none to be a valid justification for not making electronic recordings, and one to be of questionable propriety and legality.  Recording Federal Custodial Interviews, 45 Am. Crim. L. Rev. 1297, 1315-35 (2008).

°  The members of the Department’s Criminal Chiefs Working Group – experienced Assistant United States Attorneys selected by the Attorney General from various U. S. Attorney’s offices – were asked their opinions about the pilot program. Their response was:

“Paul [Hahn, USAEO] forwarded your e-mail to me and I circulated it to the Criminal Chiefs Working Group for response. The Criminal Chiefs that replied (about 6) were unanimously in favor of Arizona’s proposal. Our group has met with the FBI within the past year on this issue. I think it is safe to say that there is strong sentiment within the group, and among criminal chiefs nationally, that there should [be] much wider, if not regular, use of recording equipment to record confessions and certain witness interviews.”  Email from R. Murphy, USAIAN, to R. Tenpas, ODAG, June 13, 2006.

°  While the pilot program was still under consideration, a memorandum authored by a member of the Office of the FBI General Counsel pointed out dangers faced by agents in not utilizing readily available electronic equipment to record interviews of suspects in custody:

“[A]gents testifying to statements made by criminal defendants have increasingly faced intense cross-examination concerning this policy [not to record custodial interviews without approval of the SAC] in apparent efforts to cast doubt upon the voluntariness of statements in the absence of recordings or the accuracy of the testimony regarding the content of the statement.” Memorandum Mar. 23, 2006 at p. 2.

  • The previous FBI policy 

FBI regulations have long affirmatively prohibited agents from recording their interviews without permission of the Special Agent in Charge (SAC) of the local FBI office (MIOG, Part II, Section 10-10(2). The deterrent effect of this policy was explained by a Senior Counsel to the Deputy AG to the Principal Associate Deputy AG:

“The FBI’s current policy creates a presumption that recording confessions is an unwise law enforcement technique. The FBI’s decision to vest the discretion in the SAC to create ‘exceptions’ to its policy, moreover, makes it difficult for any agent (or even the agent’s immediate supervisor) to exercise his or her discretion to record a confession in any particular case or circumstance in which a recording may be warranted. Accordingly, although the FBI argues that it allows its agents the flexibility to record confessions, the practical effect of allowing only the SAC to grant an exception to its policy is the creation of a heavy presumption against taping.”  Memorandum from M. Raman to W. Mercer, June 20, 2006, on file with author.

In 2011, FBI regulations were revised to authorize the Assistant Special Agent in Charge (ASAC) to give permission for electronic recording, and to add other related provisions (FBI Domestic Investigations and Operations Guide, 18.5.6.4.16 (U) Electronic Recording of Interviews, pp. 18-34 to 35):

“Special Agents must obtain ASAC approval (which may not be delegated) prior to recording interviews. The requirement to obtain approval is not intended to discourage recording or to indicate that the FBI disfavors recording. Indeed, there are many circumstances in which audio or video recording of an interview may be prudent. Approval to electronically record an interview must be documented on an FD-759. When recording a custodial interview, the recording should include an advice and waiver of Miranda rights, as well as a question and answer segment designed to demonstrate that the interviewee’s statements are voluntary and not the product of coercion.

“After completing the recorded interview, the agent must document the fact that the interview took place in an FD-302, noting the identity of the individual recorded and the details of the recording session (e.g., date, time, start and stop periods, reasons for stopping). FBI employees may include a summary of the recording in the FD-302 if doing so will aid them in the management of the investigation. Transcription of the recording is optional.

“Establishing within a field office reasonable standards for the types of investigations, crimes, circumstances, and subjects for which recording may be desirable will help maintain internal consistency. The following factors will assist the ASAC in determining whether to approve a request to record interview or interviews. These factors should not be viewed as a checklist; they are not intended to limit the discretion of the approving official and are not intended to suggest that there is a presumption against recording.

“A) Whether the purpose of the interview is to gather evidence for prosecution, or intelligence for analysis, or both;

“B) If prosecution is anticipated, the type and seriousness of the crime, including, in particular, whether the crime has a mental element (such as knowledge or intent to defraud), proof of which would be considerably aided by the defendant’s admissions in his own words;

“C) Whether the defendant’s own words and appearance (in video recordings) would help rebut any doubt about the voluntariness of his confession raised by his age, mental state, educational level, or understanding of the English language; or is otherwise expected to be an issue at trial, such as to rebut an insanity defense; or may be of value to behavioral analysts;

“D) If investigators anticipate that the subject might be untruthful during an interview, whether a recording of the false statement would enhance the likelihood of charging and convicting the person for making a false statement;

“E) The sufficiency of other available evidence to prove the charge beyond a reasonable doubt;

“F) The preference of the USAO and the Federal District Court regarding recorded confessions;

“G) Local laws and practice-particularly in task force investigations where state prosecution is possible;

“H) Whether interviews with other subjects in the same or related investigations have been electronically recorded; and

“I) The potential to use the subject as a cooperating witness and the value of using his own words to elicit his cooperation.” (Emphasis in original.)

Criticisms of the previous FBI non-recording policy 

A substantial number of knowledgeable commentators, including federal and state court judges, have lodged severe criticisms of the FBI policy that discourages - indeed, virtually eliminates - recording of custodial interviews. The following examples are arranged chronologically.

°  United States v. Azure, No. CR-99-30077, 1999 WL 33218402, at *1-2 (D.S.D. 1999). Federal Magistrate Judge Mark A. Moreno and District Court Judge Charles B. Kornmann both denied the defendant’s motion to suppress a statement taken by an FBI agent. However, in his opinion, Judge Kornmann wrote:

“The Court has conducted a de novo review of the motion to suppress a statement (Doc. 25), the report and recommendations from Judge Moreno (Doc. 43), to transcripts (Docs. 33 and 42), and the exhibits (Doc. 39).

“This is another all too familiar case in which the F.B.I. agent testifies to one version of what was said and when it was said and the defendant testifies to an opposite version or versions. Despite numerous polite suggestions to the F.B.I., they continue to refuse to tape record or video tape interviews. This results, as it has in this case, in the use, or more correctly, the abuse of judicial time, both from the U.S. Magistrate Judge and from the U.S. District Court, which should not occur. Private investigators routinely tape interviews and statements. All South Dakota Highway Patrol officers have tape recorders in their vehicles and tape all interviews conducted in a patrol vehicle. The taping is done by the Highway Patrol Officer without the suspect even being aware that the interview is being taped. Psychologists interviewing children in suspected child abuse cases are told by their professional societies to video tape all such interviews to ensure as far as possible that no suggestive or leading questions are being asked of the child. All jails in larger towns and cities in South Dakota video tape people arrested and brought to the jail. There is no good reason why F.B.I. agents should not follow the same careful practices unless the interview is being conducted under circumstances where it is impossible to tape or record the interview. These disputes and motions to suppress would rarely arise, given careful practices by F.B.I. agents. The present practice of the F.B.I. enables the agent to take notes and then type a Form 302, a summary of the interview, written entirely by the agent. The agent chooses, in some cases, the proper adjectives. The F.B.I. agent knows in advance of his or her plans to interview a criminal suspect and thus has full opportunity to prepare for the interview. The prosecutor then questions the defendant at trial by showing the defendant a copy of the 302, a document that is unsigned by the defendant and not written by the defendant. The prosecutor then attempts to show that the 302 is equivalent to a statement given by the defendant. It is not equivalent, of course. Both Chief Judge Piersol and this Court have repeatedly expressed our displeasure with F.B.I. tactics as to not taping or otherwise recording statements. Chief Judge Piersol has even spoken with F.B.I. Director Freeh about the problem and the Director was unaware of any such F.B.I. ‘policy.’ The argument that too much secretarial time would be required to type the transcript is a specious argument. First, there is no need to ever type anything in the case of a video tape since the tape is simply preserved until the case is concluded. It can then be used again. Second, there is no need to type or transcribe an electronic tape unless the same is possibly needed at a hearing or at trial. The tape could simply be played to the judge or to the jury or both without typing anything. Tapes cost very little, given all the money spent on law enforcement activities by the federal government. In addition, justice requires the practice whenever possible and cost should not determine the measure of justice and fair treatment of all persons accused of a crime.

“In all future cases in the Northern and Central Divisions of the District of South Dakota in which statements taken after November 1, 1999, are not tape or video recorded and there is no good reason why the taping or recording was not done and there is disagreement over what was said, this Court intends to advise juries of exactly what is set forth in this Order and explain to the jury that F.B.I. agents continue to refuse to follow the suggestions of Judge Piersol and the presiding judge in the Northern and Central Divisions of the District of South Dakota and why, in the option of the court, they refuse to follow such suggestions. The prosecutor will also not be allowed to question defendants about the 302’s in the absence of a cautionary instruction and explanation by the Court to the jury. Fair warning has now been provided and it is expected that the United States Attorney will communicate all of this to the Federal Bureau of Investigation so they can decide what to do in the future.”

°  United States v. Torres-Galindo, 206 F.3d 136, 144 (1st Cir. 2000), by Chief Judge Juan Torruella:

“Finally, appellants argue almost in passing that their Fifth Amendment rights were violated by the FBI’s practice of not recording confessions, preferring instead to rely on the testimony of the interviewing agent. While the Court recognizes that this practice is susceptible to abuse, the appellants have offered us no evidence or argument that would indicate any impropriety in this case. Nor have they articulated how such impropriety, were it present, might constitute a violation of their Fifth Amendment rights. Even if we shared appellants’ frustration with the FBI’s practice, the claim is without merit.”

Footnote 3 is as follows:

“This writer feels there is little doubt that accurate, contemporaneous recording of custodial statements would facilitate the truth-seeking aims of the justice system, and it would also facilitate review on appeal. Given the inexpensive means readily available for making written, audio, and video recordings, the failure to use such devices may raise some interesting issues. Absent a proven violation of rights in this case, however, it is not a matter within our power to pass upon.”

°  In a case tried in 2005 in a Philadelphia federal court which resulted in an acquittal of a defendant who had given a lengthy unrecorded interview, a juror was quoted as saying, “My advice to the FBI would be to tape their interviews.”  D. Caruso, Policy against taping interviews key in acquittal, Pittsburgh Post-Gazette, Feb. 6, 2005, at B1.

°  An article co-authored by a Special Agent, published in 2006 in an FBI publication, outlined the advantages of recording custodial interrogations:  B. Boetig, et al., Revealing Incommunicado: Electronic Recording of Police Interrogations, pp. 1-8, FBI Law Enforcement Bulletin (Dec. 2006).

“Testimony regarding what transpired inside the interrogation room can become tainted if only the participants witnessed what occurred. Conflicting statements by the police and defendant regarding the presentation and waiver of Miranda warnings, requests for an attorney, the use of coercive tactics, and the mere presence of a confession expose the spectrum of issues that can arise.

* * *

“Many law enforcement agencies and courts have recognized and accepted electronic recording as a just and viable manner to collect and preserve confession evidence, the single most valuable tool in securing a conviction in a criminal case.

* * *

“…As the most accurate and efficient method of collecting and preserving confession evidence, the benefits of recording to the criminal justice system and community are unequivocal.”

°  Following a 2006 trial in a Chicago federal District Court, in which defense lawyers dissected agents’ reports of unrecorded interviews of the defendants, an FBI agent is reported to have said (Chicago Sun-Times, July 17, 2006):

“I think we are going to see more interviews recorded at the FBI. If a person hears that tape, it’s going to be hard to argue with that tape.”

°  In State v. Sanders, 775 N.W.2d 883 (Minn. 2009), an FBI agent testified at a state court criminal trial about his lengthy, unrecorded interrogation of a felony suspect. The defendant claimed he did not waive his Miranda rights. The majority held that admission into evidence of the agent’s unrecorded interrogation taken outside Minnesota was harmless error. “The FBI agents did not record the session, because it is national FBI policy not to audiotape or videotape interviews. [Agent] Burke was unaware of the recording policy in Minnesota.” (775 N.W.2d at 885.) The Court did not reach the question whether the rule of State v. Scales applies to statements taken outside the state (“Sanders was not prejudiced by the district court’s admission of Burke’s testimony.” (775 N.W.2d at 888.) Justice Paul H. Anderson, concurring in the result, stated (775 N.W.2d at 889-90):

“The [State v.] Scales opinion was issued by our court on June 30, 1994, one day before I joined the court. When we adopted the Scales rule in 1994, we were only the second state in the nation to adopt this approach. Our decision to adopt the Scales rule was greeted with considerable skepticism and dissent. Over the years, the wisdom of our decision has been proven and many law enforcement officials now heartily endorse recorded interrogations as an effective law enforcement tool.

Scales has significantly reduced the number of law enforcement issues confronting the courts. When I first joined our court, we were still dealing with many pre-Scales cases challenging Miranda warnings given by police officers. It was fairly routine for a defendant to question the propriety of an officer’s Miranda warning. The use of Scales has revealed, in the vast majority of cases, the competence and general conscientiousness with which police officers in Minnesota advise defendants of their rights under Miranda. As a result, in recent years, we have very few valid Miranda challenges that have come to our court. This is a good development.

“Further, the use of Scales has in many cases eliminated frivolous and unfounded objections by defendants as to the circumstances surrounding their interrogation. While law enforcement initially feared that by having interrogations recorded it would lose an effective component of its interrogation of defendants, the opposite is true. Not only has Scales revealed that in almost all cases law enforcement does a conscientious job when conducting an interrogation, the recorded interrogation frequently turns out to be some of the best evidence against the defendant. In essence, Scales has resulted in the best of both worlds. The defendant’s rights are protected and law enforcement is more effective.

“I agree with the dissent that the rationale underlying Scales should and does apply with equal force to interrogations conducted both within and outside Minnesota. I do not understand the FBI’s failure to use this proven procedure [electronic recording] especially in light of the FBI’s history in the middle of the 20th Century. During that time period, the FBI frequently took the lead nationally in advising defendants of their rights under the Constitution….”

Justice Alan Page, joined by Justice Helen M. Meyer, dissented, saying (775 N.W.2d at 890-92):

“I respectfully dissent. In State v. Scales, 518 N.W.2d 587, 592 (Minn.1994), we held that ‘all custodial interrogations . . . shall be electronically recorded where feasible and must be recorded when questioning occurs at a place of detention.’ We further held, under our ‘supervisory power to insure the fair administration of justice,’ that courts must suppress any statement ‘obtained in violation of the recording requirement if the violation is deemed “substantial”’ Id. Our purpose in so holding ‘was to prevent factual disputes about the existence and context of Miranda warnings and any ensuing waiver of rights’ by providing courts with an objective record of custodial interrogations. [Citing case.] We were concerned that courts tended to credit statements by law enforcement and, without more, conclude that the defendant waived his or her rights. Scales, 518 N.W.2d at 591 (‘trial and appellant courts consistently credit the recollections of police officers regarding the events that take place in an unrecorded interview’). Even though law enforcement officers testified that the defendant in Scales waived his rights, we were persuaded that recording custodial interrogations was ‘a reasonable and necessary safeguard, essential to the adequate protection of the accused’s right to counsel, his right against self incrimination and, ultimately, his right to a fair trial.’ Id. at 592 (quoting Stephan v. State, 711 P.2d 1156, 1159-60 (Alaska 1985)). Thus, the recording requirement is intended to provide an objective record of what takes place during custodial interviews and to eliminate the need for courts to decide factual disputes about a defendant’s waiver of rights. [Citing case.]

* * *

“…My reading of Scales and its progeny leads me to conclude that the district court and the court of appeals’ holdings are wrong and that we should squarely address the issue. My reading of the record before us leads me to conclude that it cannot be said with any certainty that the verdict was surely unattributable to the error in admitting the unrecorded testimony of the FBI agent.

“The Scales recording requirement is a necessary safeguard, essential to the protection of a defendant’s right to counsel, right against self-incrimination, and right to a fair trial. Scales, 518 N.W.2d at 592. Because we have never limited our concern for a defendant’s rights solely to cases involving Minnesota law enforcement or events occurring solely within Minnesota’s geographical borders, I conclude that the rationale underlying the Scales decision applies with equal force to interrogations conducted both within and outside of Minnesota.

“…Sanders was arrested by FBI agents and was taken to a place of detention and interrogated. The interview was not recorded. By definition, therefore, the Scales requirement was violated. See Inman, 692 N.W.2d at 80. Whether that violation requires suppression of Sanders’ FBI interrogation turns on whether the failure to record the interrogation was a substantial violation of the Scales rule.

* * *

“The admission of the agent’s statement was also prejudicial. In this case, Sanders was not able to defend against the challenge to his credibility resulting from the State’s use of his alleged statements made during the unrecorded interrogation. This credibility battle between an officer and a defendant is precisely the situation we sought to avoid in Scales.

“Here, the State, in its effort to show that the violation was neither substantial nor prejudicial, offered testimony from the FBI agent that Sanders was advised of his rights against self-incrimination, waived those rights, and agreed to be interviewed. This testimony does not address, much less meet, the State’s burden. It, instead, attempts to show that a Miranda warning was given and that Sanders waived his right to remain silent. If a law enforcement officer’s testimony about a defendant’s waiver is enough to meet the State’s burden of showing that a Scales violation is not substantial, then the Scales requirement is meaningless. The note to Model Code §150.3 explains that placing upon the State the burden of showing a violation is not substantial ‘alleviate[s] the dilemma of a court which is confronted with conflicting versions of what took place during the custody of an arrested person.’ The note further states that if a court finds an ‘agency has not taken reasonably adequate steps in good faith to assure compliance . . ., it should give special credence to the account of the defendant.’ Model Code, §150.3 note. In this case, the Scales requirement was violated because there was no recording. Nothing in this record suggests that the State took any steps, much less reasonably adequate steps, in good faith to assure compliance with the Scales recording requirement. Indeed, the record is silent on the actions taken by the State. On that basis, I can only conclude that the unrecorded interrogation constituted a substantial Scales violation warranting suppression of any statements from that interrogation. Therefore, I would end the analysis here, concluding that the district court erred in admitting the FBI agent’s testimony, and grant Sanders a new trial.”

° United States v. Cook, 3:10-CR-522, N. D. Ohio, (Sept. 8, 2011), Judge James G. Carr:

“Twice in my career I’m faced with the fact that had the Bureau recorded the conversation, we wouldn’t be here. I find it a shabby and unjustified practice. Recording is ubiquitous. They videotape with TPD.

Assistant U.S. Attorney: “You’re preaching to the choir. But, that having been said, this is a procedural thing that the government -- when I say the government, I mean my office has no control over.

Judge Carr: “I understand that. Somebody has to tell the Bureau, enough is enough. This kid is looking at 15 years, if I understand correctly. A 20 year old eagle scout. I don’t know whether he’s telling the truth. But I think this matters... I’m sitting here listening to that kid and wondering, you know, maybe he’s telling the truth. Implausible as it seems, incredible as it is; nonetheless, we wouldn’t be here…It’s not necessary for us and the jurors and everybody else to take the time and money when the Bureau, as far as I’m concerned, has absolutely no reason not to do it. It gives the Bureau an edge. These guys come in here with their badge, their experience, their professional demeanor in testifying, and it’s impossible not to believe them. It’s impossible. It really is.

Assistant: “So you’re doing this in order to get them to change their policies?

Judge Carr: “No, I’m doing it because it’s fundamentally unfair. It is fundamentally unfair. They do it deliberately because they know it gives them an edge. And that’s not right. It’s not the way the government should function. It recorded …hundreds of hours of [name] … the plant in the terrorism case. Hundreds of hours. Peep hole cameras, gym bags; they can do it. There’s no excuse not to. Highway patrol does it. I’d be willing to bet every major police department in this state does it. There’s no excuse. I’m yelling at you, I’m sorry, but I’m really upset. This is 15 years of the kid’s life. He may deserve it. The stuff we saw yesterday is appalling. He deserves a stiff sentence if he did it. And we could know one way or another what the truth was about what happened in that closed interrogation room. I don’t like thinking that an FBI agent might lie, but there’s a sure and certain way I would know whether that’s true or not. This case wouldn’t be here. If they had a recording, [defense lawyer] would have pled, or you wouldn’t have indicted. End of discussion.

* * *

“…And we all know and the last five years have shown us there are plenty of false confessions. People who are totally innocent. Has it happened in this case? Who knows. That’s for the jury to decide. But I am sick and tired of the Bureau coming in here and taking that edge. It’s a violation of fundamental due process as far as I’m concerned.

* * *

“ … I paused for a moment and said, you may step down. At that moment I thought about saying, well, agent, you didn’t record it, did you? No. Why not? Bureau policy. Does the Lima P D record? Does the Allen County sheriff? Do you know whether the Toledo police department records? The Ohio state patrol when they have a traffic stop?

* * *

“I’m going to be very candid. Agent [name], I know it’s not your job to change policy. But as [the Assistants] probably told you, I am deeply disturbed that the FBI continues its incomprehensible policy of not recording interviews. We spent this week for one reason and one reason only in this case, because the Bureau does not record interviews. Shame on the Bureau. It makes no sense. It gives the Bureau an unfair advantage. You come in here in your coat and tie and say I’m from the FBI and I do not lie, and everybody believes it. You already come in with an overwhelming advantage because of the Bureau you work for and the esteem and respect in which we all hold it, myself included. I’ve worked with your agents for more than 30 years. And quite candidly, rarely, if ever, have I had a question about their veracity. But it enhances the advantage you already have and the government already has not to record interviews. They tape record, they videotape them across the street, across the mall in Toledo police department. You have an undercover operation, you wire the informant for every single drug transaction. Why do you do it? Best possible record. That’s why. But you get in an interrogation room with nobody else except a 20 year old defendant, and you -- your Bureau sees fit at that moment, the most crucial moment of any investigation, not to record what he says and what you say. You collectively incorporated. And that’s shameful. It’s intolerable in any society under any government that values the rights of its citizens to a fair trial. I know my saying this is out of role and perhaps out of place. I know that there is nothing you can do about it. But quite simply, somebody has to tell the Bureau, there’s at least one federal judge in whose estimation the FBI diminishes when it comes in the courtroom and it says, we didn’t record the statement. I was tempted to ask the simple question, what would have been the indisputable proof of what was said in that room? And you would have had to answer, a recording. I was that close to doing it. But I decided not to put my thumb on the scales. I’m not so sure next time it happens I will be quite so discreet. This young man is looking at 15 years in prison if he gets convicted. If he did what he did, it’s appalling. It’s insufferable. He deserves to go to prison. But he also deserves the fairest possible trial our government can give him. And every time the FBI does not show up with a recording device, it cheats that suspect and ultimately that defendant. It’s not playing fair. I expect more from our government law enforcement agents. You send in an undercover agents, peephole cameras, you wire rooms, you record by law every conversation that’s heard on a Title 3. But it comes to the occasion when most cases are determined, namely when you sit down in a closed interview room with a suspect. That is the most crucial moment of almost every case in an investigation, the one-on-one interrogation. And you take advantage of that by not recording it. Shame on the Bureau, and tell them I said so. Tell them they can do better. We deserve better. I’ve said enough.

* * *

“…I will not tolerate the fundamental unfairness of what the FBI does day in and day out, trial in and trial out, interrogation in and interrogation and interrogation after another. It is unpardonable. In this courtroom in front of this judge it is unacceptable. And it will not happen again or if it does I will give a strongly worded instruction. I will exercise my right to question the agent. And I will also exercise my right to comment on the evidence. Enough said.”

•  Criticisms of the Drug Enforcement Agency previous non-recording policy 

°  United States v. Plummer, 118 F. Supp. 2d 945 (N.D. Iowa 2000). The defendant was interviewed by state officers and DEA agents. Chief District Court Judge Mark W. Bennett granted the defendant’s motion to suppress his statement on the basis that the defendant made “an unequivocal decision to invoke his right to remain silent.” (118 F. Supp. 2d at 953). In a footnote, he wrote (F. Supp. 2d at 951, n.6):

“The court again notes that this factual conflict, indeed the entirety of Plummer’s motion, could have been easily resolved if the officers had videotaped or otherwise recorded their interaction with defendant Plummer.”

In the body of his opinion, Judge Bennett wrote (118 F. Supp. 2d at 946-47):

“This motion to suppress reminds the court of one of Akira Kurosawa’s classic films, RASHOMON, where the director takes an apparently simple story and complicates it by filtering it through the perceptions of four different witnesses. Here, four state law enforcement officers working with the Tri-State Drug Task Force testified to four slightly altered versions of the events surrounding the defendant’s being informed of his constitutional rights as required by Mirandav. Arizona…while the defendant provided the court with a contrasting account. Resolution of this factual conflict, indeed the entirety of the motion to suppress, would be unnecessary if the officers had videotaped or otherwise recorded their interaction with the defendant. The interview room where the questioning took place had videotaping capability. Their failure to videotape the events surrounding the interrogation of the defendant was done pursuant to an edict of the United States Drug Enforcement Agency which proscribes its officers from recording the questioning of suspects.

* * *

“The continued failure of federal law enforcement agencies to adopt a policy of videotaping or otherwise recording interviews leads invariably to the proliferation of motions such as the one currently pending before the court. The court, therefore, is considering adopting policies similar to those implemented by Judge Kornmann in Azure.

* * *

“The room has no two-way mirror but does have the capacity for audio and video monitoring. The room also has videotaping capabilities but no videotaping occurred here pursuant to the United States Drug Enforcement Agency’s (‘DEA’) policy of not recording or videotaping interrogations.” (Footnote 2)

Footnote 2. “Officer Cheshier testified at the evidentiary hearing that it was his understanding that the reason underlying the DEA’s policy for not videotaping interrogations was to preserve uniformity in the evidence of all interrogations. As explained by Officer Cheshier, the DEA believes that because not all questioning that occurs in the field can be recorded or videotaped then no interrogations should be videotaped. This explanation is at least suspicious and at worst ludicrous. The court notes that Iowa State Troopers have videotape recorders in their patrol cars and the capacity to make audio recordings of conversations that occur in those patrol cars. Moreover, small audio tape recorders have been widely available for a great many years and small hand held videotape recorders are now available. Indeed, State law enforcement officers have previously testified before this court about their ability to record statements. There is simply no good reason why DEA agents could not make audio or video recordings of virtually all interrogations that occur. Even if occasionally a law enforcement officer in the field were unable to record his or her questioning of a suspect because of environmental factors or mechanical malfunctions, this does not support the officer’s failure to record statements under the conditions which existed here. Indeed, Officer Fellin actually used the audio video monitor in the interview room here to watch portions of the interrogation but simply elected not to use it to record the interrogation. Thus, left with no rational explanation for the DEA’s policy against videotaping or recording on interrogations, the court is left with the inescapable conclusion that DEA’s offered reason for not videotaping or recording statements is totally pretextual.”

°  United States v. Thornton, 177 F. Supp. 2d 625 (E.D. Mich. 2001). The defendant was interviewed by DEA agents, and signed a written confession. District Court Judge Arthur J. Tarnow granted the defendant’s motion to suppress both her oral and written statements, saying (177 F. Supp. 2d at 627-28):

“The court finds, after considering all of the circumstances surrounding the confession, that Ms. Thornton’s confession was involuntary and must be suppressed.

* * *

“The Court notes that neither the interrogation nor confession were audio or video taped. While electronic recording is not a constitutional requirement, there is a ‘heavy burden’ on the government to show a suspect’s waiver of rights was knowing and intelligent. Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). To that end, several jurisdictions in the United States have instituted mandatory taping of confessions, waivers of Miranda rights, and interrogations, such as Alaska and Minnesota, while many more tape voluntarily. It certainly harms the prosecution in a close case when the court cannot evaluate the actual confession. The Court recommends that the DEA electronically record future interrogations and confessions so a reviewing court can full evaluate whether a confession violates Fifth or Fourteenth Amendment.”

°  United States v. Mansker, 240 F. Supp. 2d 902, 910-11 (N.D. Iowa 2003). Chief Judge Bennett upheld a jury verdict of guilty, but in the course of his opinion he referred again to the DEA policy of not recording custodial interviews:

“Nevertheless, the court is troubled by the agents’ practice of destroying their notes after typewritten summaries have been prepared because it is a subversion of the truth-finding process, which this court refuses to sanction as a tolerable practice. This court criticized a parallel law enforcement practice in United States v. Plummer, 118 F. Supp. 2d 945 (N.D. Iowa 2000). In Plummer, the issue before the court on a motion to suppress revolved around whether and how a defendant was Mirandized. Had the interrogation been videotaped, resolution of the factual dispute would have been unnecessary. But, an edict of the United States Drug Enforcement Agency proscribed its officers from recording the questioning of suspects. Id. at 947. In Plummer, the court cautioned that, if law enforcement officers refused to adopt a policy of videotaping or otherwise recording interviews, it would likely adopt Judge Kornmann’s approach in the District of South Dakota:…

“When questioned, neither the case agent nor the prosecutor could articulate any legitimate justification for destroying handwritten notes after they had been reduced to a finalized report. Because there is no legitimate reason for destroying rough notes and because of the danger their destruction poses to the integrity of the criminal justice system, the court is seriously contemplating entering an administrative order that no federal law enforcement officer or state officer working with the Task Force in the Northern District of Iowa, absent a satisfactory explanation for the destruction of their rough notes, will be allowed to testify if the officer destroyed his or her notes after preparing a finalized report.”

°  United States v. Lewis, 355 F. Supp. 2d 870, 871-73 (E.D. Mich. 2005), involved a defendant who was questioned at the local DEA headquarters. The defendant’s oral statement to the agents was summarized on DEA Form 6 Report of Investigation. In his opinion granting the defendant’s motion to suppress the statement, District Judge Avern Cohn said:

“While video equipment and audio cassette equipment was available at the DEA headquarters, as a matter of policy interviews such as those which occurred on June 5, 2003 are not recorded. The assistant United States Attorney prosecuting the case has advised the Court:

‘DEA policy does not prohibit the recording of statements. Rather, the policy requires the recording of statements if the agents request that the interview be recorded and the defendant consents to the video or audio recording. While the recording of interviews would certainly make for less litigation over suppression issues, the government continues to believe that case law does not require suppression simply because the agents chose not to record the interview.’

“The notion of recording interrogations is not new, nor is it uncommon. Indeed, less than a decade after Miranda the American Law Institute proposed recording of interrogations as a way to eliminate disputes over statements made during interrogations. American Law Inst., A Model Code of Pre-Arraignment Procedures §130.4(3) (1975).

* * *

“. . . Additionally, the American Bar Association unanimously accepted a regulation in early 2004 that urges law enforcement agencies across the country to videotape interrogations. Id. at 640. On a global scale, Great Britain, Canada, and Australia all require either audio or video recordings of interrogations. Daniel Donovan & John Rhodes, Comes a Time: The Case for Recording Interrogations, 61 Mont. L.Rev. 223, 231 (2000). If law enforcement officers in Australia fail to comply with the requirement, the jury will receive an instruction suggesting any police testimony about a confession may be unreliable. Id. 

“Affording the Court the benefit of watching or listening to a videotaped or audiotaped statement is invaluable; indeed, a tape-recorded interrogation allows the Court to more accurately assess whether a statement was given knowingly, voluntarily, and intelligently. One legal commentator has noted that ‘some of the most detailed assessments of voluntariness have come in cases of recorded interrogations, which permit judges to parse implicit promises and threats made to obtain an admission.’ Paul G. Cassell, Miranda’s Social Costs: An Empirical Reassessment, 90 Nw. U.L.Rev. 387, 487 (1996). ‘Taping is thus the only means of eliminating “swearing contests” about what went on in the interrogation room.’” Id. 

One of the reasons Judge Cohn gave for his ruling was that (355 F. Supp. 2d at 873):

“the interviews were not memorialized by video or audio recording, notwithstanding that equipment to do so was available, and notwithstanding the fact that one of the officers had previously been involved in an interview situation where the failure to record was criticized, see United States v. Thornton, 177 F. Supp. 2d 625, 628 (E.D.Mich. 2001).”

•  Criticisms of the Alcohol, Tobacco, Firearms, and Explosives previous non-recording policy 

◦ In United States v. Younis, 890 F. Supp. 2d 818 (N.D. Ohio 2012), Senior District Judge James G. Carr granted the defendant’s motion to suppress evidence seized during a traffic stop, and ordered further hearings with regard to the defendant’s subsequent statements. Judge Carr said:

“As I also expressed at the conclusion of the hearing, I am deeply concerned about the failure of Trooper Stanbaugh to record his interrogation. I neither know of nor can perceive any valid reason for any law enforcement agency or officer, where the means to do so are readily at hand, not to record his or her activities, whether during a traffic stop or in an interrogation room. Officers sworn to uphold not just the laws, but also the Constitutions of the United States and the State of Ohio have the most important of all motives – fidelity to that oath – for recording such encounters.”

During the hearing on the motion to suppress, Judge Carr made the following statement:

“We’re here for one simple reason that I find inexplicable, and that is the failure to use readily available equipment permanently to record each and every important incident in the chain of events that brings us here. I do not understand why the trooper can leave his machine running for however long it took to head down the road to the turn around, apparently three or four minutes, I don’t know, but he couldn’t turn it on at least after he saw the first incident. We wouldn’t be here if he had done so. And I haven’t heard a good reason why he did not do so. And I trust that the government will notify the posts in this region that this federal judge expects better of the people who – whom I and every other citizen of this area are paying to do their job. If nothing else we’ve wasted his time today, time that he could have been spent making the turnpike and I-75 safer for us to travel, for want of four or five minutes of recording. I mean, it was at least, I infer, three hours left on the recording device. He indicated this was his first traffic stop. His time being on duty had been spent conveying an earlier arrestee to and from the Lucas County Jail. There is no excuse for that kind of activity. Likewise, we wouldn’t be here wondering just how well Mr. Younis can or cannot understand English and what was said between Mrs. Younis and her husband in the course of translation if Inspector Stanbaugh had, as apparently many other inspectors state highway patrol and every local agency that I’m aware of, routinely records everything that happens during an interrogation. It is inexplicable. It is inexcusable. It is no way to treat citizens. It is no way to treat a court of law. It is no way to treat the Constitution of the United States. And if it is the ATF policy as it is the FBI policy deliberately not to record its interrogations, then I suggest you talk with the U.S. Attorney’s Office about how I will handle that in the future in any case that goes to a jury in front of me. There is no reason for that practice, none whatsoever. And we would not be here unless that practice had not been involved. I am inclined to find that there’s insufficient evidence in this record to find it more likely than not that those traffic offenses occurred. And if I find that the stop was illegal and everything that happened thereafter was illegal. I take the record as I find it. And I simply am not persuaded by the existence of a routine practice not to do something that is easy. It’s not innovative. The equipment is in those cars, it can be turned on and off. If you’re running out of space on the recording chip, you’re in the vicinity of a patrol post, go in, download it, clean it up, and record.”

  • General federal court criticisms of DOJ previous non-recording policies 

°  Some years ago, a federal District Court judge from Oklahoma wrote me, "I came to the bench three years ago after 29 years in civil practice. I find it ironic that if the cost of repairing a car is at stake in a civil case, the defendant's account of the matter (i.e., his deposition) is meticulously recorded, but agencies with ample opportunity and resources to do so fail to record statements where liberty or perhaps even life are at stake."

°  In Giles v. Wolfenbarger, No. 03-74073, 2006 WL 176426 (E.D.Mich. Jan. 24, 2006), rev’d. and vacated on other grounds, 239 Fed. App.145, 2007 WL 1875080 (6th Cir. 2007), a habeas corpus petition challenging a state court conviction for murder, Wolfenbarger was questioned in a hospital where he was recovering from surgery for two gunshot wounds. At the evidentiary hearing, the officer testified that in his 14 years in the Homicide Section, neither audio of video recording was done. District Court Judge Tarnow (author of the Thornton opinion, above) stated, “Respondent’s case is weakened by the lack of an audio or video record.” He then quoted with approval from an article written by the author of this Compendium:

“In the past few years, the many benefits of complete audio or video recording of custodial interviews have become increasingly apparent to all parties. For suspects, recordings expose abusive tactics and falsehoods about confessions. For law enforcement officials, recordings spare them from defending unfair charges of using heavy-handed methods or misstating what occurred. Furthermore, prosecutors and defense lawyers no longer engage in courtroom disputes as to what took place: the interviews may contain exculpatory statements favorable to the defense, or admissions which strengthen the prosecution’s case, but in either event, the record is clear and conclusive. Trial judges and reviewing courts no longer have to evaluate conflicting versions of what happened. Unlike the customary interview during which the police make handwritten notes and later prepare a typewritten report, electronic recordings contain a permanent record of the event, leaving no room for dispute as to what officers and suspects said and did.”

°  United States v. Mason, 497 F. Supp. 2d 328, 335-36 (D.R.I. 2007). District Court Judge Smith was dealing with law enforcement officers from Providence, Rhode Island, but, in denying defendant’s motion to suppress, he sent a message to both federal and state law enforcement personnel (497 F.Supp.2d at 335-36):

“Courts and commentators have consistently struggled to understand the resistance of some in law enforcement to certain practices that offer the possibility of increasing the reliability of evidence in criminal cases. [Citing Mansker and Azure, above, and Lillquist article (2007), see Part 5 below]. And, although some states and communities have taken steps to improve these practices, [citing and summarizing from Sullivan article (2004), see Part 5 below], the majority of departments and jurisdictions continue to eschew specific procedures (in reality, reforms) that would help safeguard against the use of unreliable evidence. Id.

* * *

“Consider this case as an object lesson on the need for contemporaneous recording of surveillance activities. Here we have an extraordinary set of accusations that are tightly interwoven with indicted allegations against the defendant’s own former counsel and staff. Invocation of the Fifth Amendment as to explosive questions directed at police involvement in the corrupt conspiracy lends oblique but highly inconclusive support for the defendant’s accusations. So there are two possibilities: (1) the defendant has concocted an exceptional weave of the allegations contained in the Cicilline/Torres indictment, his own actual experiences, and some newly-minted fabrications into an alleged scheme worthy of a crime novel; or (2) the allegations of the defendant are true. At this stage, there has been no concrete evidence to support a finding that the allegations are true; however (and regardless of how insulted Sergeant Partridge may be by the suggestion) the former seems hard to fathom as well. If the Providence Police had followed the best practices associated with undercover investigations, including documenting the undercover surveillance and the controlled buys and recording their initial interview with co-defendant Isom, there would be no question or doubt about the veracity of the affidavit-and possible no suppression motion. [Here is the reference to footnote 8, quoted below.] When defendants face possible sentences of up to mandatory life in prison, one would think that the quality of the police work would be better. It is for this reason that continued indifference (or resistance) by the Providence Police Department to practices aimed at curbing the problems discussed above risks this Court’s use of corrective measures. These could take the form, for example, of a finding that an officer’s testimony be excluded because its reliability, and therefore probative value, is too low compared to its prejudicial effect, see Fed.R.Evid. 403; or in the form of an instruction to the jury, as part of this Court’s usual instruction on how to judge witness credibility, that such undocumented evidence may be disregarded or that the jury may consider the lack of contemporaneous notes or other evidence in determining whether the officer’s testimony is credible. Where simple and efficient reforms of the investigative and information-gathering stages offer the possibility of increasing the accuracy of criminal convictions, law enforcement agencies should move swiftly toward their implementation. Failure to take action effectively pits these agencies against the truth-seeking process, imperils an already vulnerable criminal justice system and will be met with corrective action by this Court.”

In footnote 8, Judge Smith wrote:

“Lurking in the shadows of this case are other disturbing practices. There is not a single contemporaneous incriminating statement by either defendant (Mason or Isom) that is either recorded or in their own hand. Instead, the only direct evidence linking Mason to the drugs found at 214 Pavilion Avenue (he was not present in the residence immediately before the search) are statements alleged to have been made by Isom during an unrecorded interview in January of 2004 with Partridge. These statements corroborate almost every aspect of the alleged crime but conflict diametrically with Mason’s, Mason’s father’s and Isom’s testimony about the use of the 214 Pavilion Avenue residence. In addition, Isom, who on the stand admitted to a number of incriminating actions including drug dealing, testified emphatically that he never made these statements. That perhaps the only direct link between the drugs and Mason could rest on this unrecorded, and disputed, account raises serious concerns….Although at this point the issue is premature, the reliability and propriety of Partridge’s witness statement recounting Isom’s supposed incriminating statements (and possible other evidence) may at some future point necessitate a more thorough analysis, especially in light of recent empirical research discussing the nature and effect of unrecorded testimony.”

°  Judge Smith wrote an email to the author on January 24, 2009, explaining that the government eventually dismissed the Mason-Isom indictment. He added:

“Over the last several years, since the Mason case, I have begun to use a jury instruction that essentially tells the jury that statements from law enforcement officers regarding defendant’s statements, which are not recorded when recording equipment is available, must be viewed with particular caution…I have let it be known that in due course I am going to move to a stronger instruction which includes that language that agencies have refused to adopt a policy of recording in spite of strong encouragement by the court to do so…I continue to believe that federal trial judges will have an important role in influencing the DOJ and the agencies to move in the right direction on this issue.”

•  A recording by an FBI agent used to support guilt 

°  In United States v. Jacques, 784 F. Supp. 2d 48 (D. Mass. 2011).  Jacques was interrogated for 6 1/2 hours in an interview room by an FBI agent and a Massachusetts state trooper, during which Jacques admitted committing an arson.  The interview was videotaped.  In ruling of Jacques’ pretrial motion to suppress, the trial judge ruled in the government's favor on two contentions:

First, Jacques was not under the influence of narcotics (pp. 53-54):

“On the videotaped interrogation, which includes the time during and subsequent to the signing of the [Miranda] waiver, Defendant shows no visible or audible signs of impairment whatsoever.  His demeanor and mannerisms appear perfectly normal, and his answers are both cogent and responsive.

* * *

“The videotaped interrogation only reinforces Nurse Passa’s conclusions.  As at the outset of the interrogation when he signed the Miranda waiver, Defendant remained cogent and responsive throughout the questioning, up to and including his confession.  Defendant’s answers were grammatical, pertinent, articulate, and, in some cases, eloquent.  Simply put, he did not show any signs of a weakened mental or physical condition that would make him in any way vulnerable to aggressive interrogation.”

Second, that Jacques was not coerced (pp. 54-56):

“...while the questioning was vigorous and persistent, neither Trooper Mazza nor Agent Smythe took any action that could be deemed a constitutionally offensive method of coercion.

“Significantly, though Defendant stated he well knew he had the option, he never once expressed a wish to terminate the interrogation, or even to take a break from it.  He never said he was tired or ill.  In addition, Defendant requested and was granted three cigarette/bathroom breaks.  Defendant’s age (twenty-four years old) and familiarity with the criminal justice system also weighed against a finding of involuntariness.

* * * 

“...Defendant clearly waived his right to remain silent, both by his conduct and by signing a written statement to that effect.  Thus, even if Trooper Mazza’s comments could be deemed an implied threat, that threat was directed not at Defendant’s invocation of his Miranda rights, but at his steadfast refusal to provide honest answers (In Trooper Mazza’s eyes) to the investigators’ questions.

* * * 

“...Informing a suspect of this intuitive, widely known policy does not constitute coercion.”  

•  Dueling recorded confessions show FBI agents induced a false confession 

In 2011, two children were found murdered in their home on an Indian Reservation in Spirit Lake, North Dakota.  This was a federal crime. FBI agents suspected the children’s father, whom they interviewed.  After lengthy sessions, the father insisted he couldn’t recall committing the murders, but he finally confessed.   Subsequently, DNA was discovered which matched a male baby-sitter; the same agents interviewed him, and he too confessed, but unlike the father, he provided details of the crime previously unknown to the agents.  The interrogations took place in a local police station in North Dakota in a room equipped with recording equipment; both interviews were videotaped.  At the 2013 federal court trial of the sitter, the defense lawyer played the father’s taped confession, and argued he was the killer, while the Assistant United States Attorney argued the father’s confession to the FBI agents was false.  The jury convicted the sitter. After the jury convicted, the United States Attorney stated that he favored electronic recording of all custodial interrogations.

The tape made of the father’s “confession” illustrate how law enforcement agents – including federal agents – may inadvertently suggest to those they interrogate how crimes occurred, and pressure suspects for admissions of guilt.  Without the videotapes that graphically revealed the exact evolution of the two interrogations – which agents’ brief written reports customarily do not – the father rather than the sitter may have been convicted of killing his children, and a serious injustice perpetrated.

  • Commentary re past DOJ non-recording policy 

The DOJ policy which discourages agents from recording their custodial interrogations is difficult to square with the truism contained in Senior District Judge Robert Van Pelt’s opinion in Hendricks v. Swenson, 456 F.2d 503, 507 (8th Cir. 1972):

“We must recognize that the capacity of persons to observe, remember and relate varies as does their ability and desire to relate truly. For jurors to see as well as hear the events surrounding an alleged confession or incriminating statement is a forward step in the search for truth. And after all, the end for which we strive in all trials is ‘that the truth may be ascertained and the proceedings justly determined.’”

It is also difficult to reconcile the DOJ refusal to have its agents record their custodial interrogations with the awards made recently by the Department’s Office of Justice Programs, Bureau of Justice Assistance, to eight state agencies (CA, CT, LA, MS, MO, NM, NC, TX) for the purchase of video recording equipment to support their recording of custodial interrogations; and to the injunction imposed by the federal court in Detroit at the urging of DOJ lawyers, requiring Detroit police to record custodial interrogations of persons suspected of serious felonies.  Harlin v. City of Detroit, No. 04 70922, Dkt. 110 (E.D. Mich. Jun. 22, 2006).

Quoted above are Judge Van Pelt’s astute observations in Hendricks v. Swenson, about the accuracy of electronic recordings, compared with the limitations and fallibility of human memory. That case involved a defendant who was convicted in state court, who argued that his constitutional rights were violated by the local law enforcement officials by video recording his confession. Judge Van Pelt observed (506-07):

“…a video tape is protection for the accused. If he is hesitant, uncertain, or faltering, such facts will appear. If he has been worn out by interrogation, physically abused, or in other respects is acting involuntarily, the tape will corroborate him in ways a typewritten statement would not. Instead of denying a defendant his rights, we believe it is a modern technique to protect of defendant’s rights.

Marine Corps

Citation:  Marine Corps Inspector General Program, Investigations Guide, August 2009.

“Section 6-2, Categories of Evidence.  4. Oral Statements.

“a. Testimony.  (1) Testimony is defined as a sworn and recorded oral statement…Testimony is the primary means of gathering evidence in investigations, and IGs may use it in inquiries....(2)  Verbatim testimony may not always be practical. If assets or time are limited, take sworn and recorded testimony and initially prepare a summary in Memorandum for Record (MFR) format.  …Keep in mind that the purpose for recording is to make an accurate record of the interview.  For accuracy, you may record interviews even if you do not intend to prepare a verbatim transcript.  When in doubt, record!”

Navy

Citation: U.S. Naval Criminal Investigations Manual, Dec. 2008, Chapter 36-11.

General rule: “The recording of interrogations by overt video or audio means within the confines of an NCIS [Naval Criminal Investigations Service] facility having the technical capabilities for such recordings shall be accomplished in all investigations involving crimes of violence…” §36-11.1.

“…It is envisioned that all NCIS components will eventually become technically capable to record interrogations, consistent with the guidance provided below” §36-11.2.

“The entire sessions, except for when a person is conferring with their lawyer or with a chaplain, shall be recorded from the time the person being interrogated enters the room until the time he/she departs, to include the statement taking process” §36-11.3e.

“Agents should consider use of this investigative tool in all investigations.” §36-11.10.

Signs shall be posted at each entrance to rooms used for interrogations. “Room subject to audio/video recording at all times,” translated in foreign countries into the native language §36-11.3a.

Exceptions: “A decision not to record may be made by the SAC [Special Agent-in-Charge], or the supervisory designee, when circumstances of investigative environment dictate that recording would be counterproductive or otherwise impede the interrogation” §36-11-1. If the decision not to record interrogations relating to crimes of violence, the rationale for that decision and the identity of the supervisor who made the decision shall be annotated in the case agent report. “If the person interrogated objects to being recorded, the recording equipment shall be immediately turned off and remain off throughout the interrogation and statement taking process” §36-11-3c. Polygraph examinations are exempted from the recording requirement §36-11.7.

Miscellany: Factors for consideration by SACs when considering whether to record interrogations are listed in Appendix (3), including “Whether the subject’s own words and appearance (in video recordings) would help rebut any doubt about the voluntariness of the statement raised by a person’s age, mental state, educational level or understanding of the English language; or is otherwise expected to be an issue at trial, such as to rebut an insanity defense; or perhaps be of value to behavior analysis” §4; “The preference of the Military Trial Counsel, the U.S. Attorney’s Office, or federal District Court regarding recorded statements” §5; and “Local laws and practice – particularly in task force investigations where state prosecution is possible” §6.  If the decision is made not to record interrogations relating to crimes of violence, the rationale for that decision (e.g., the office interview room was not equipped for recording) and the identity of the supervisor making that decision shall be annotated in the CAR [Case Action Report].” §36-11.4. In joint investigations with another agency that has primary jurisdiction, the other agency’s policy prevails §36-11.9.

Consequences unexcused failure to record: None given.

Preservation: “The master recording shall be maintained as evidence until the case is fully adjudicated including the appeals process. A ROI shall reflect where the recording was placed into evidence, to include the date and evidence log number. A log shall be established to document any reproductions or copies of recordings. The log shall be maintained in the case file and shall reflect the name of the requestor, the date copies were made, and to whom the copies were provided. A copy of the recording shall not be submitted as part of the closed file.” §36-11.5

State

The Attorney-Advisor at the Office of the Legal Advisor of the Department of State informed us that State Department personnel do not conduct custodial interrogations or interviews. Some personnel conduct non-custodial interviews as part of official investigations and those interviews may be recorded, but only with the consent of the interviewee.

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