Connecticut has a statute requiring recording of custodial interrogations.
Citation: Conn. Gen. Stat. § 54-1o (2014).
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. §§ 54-1o(a)(b).
Circumstances that excuse recording: An unrecorded statement made in a custodial interrogation is still admissible in court if the statement was: 1) “made by the person in open court at his or her trial or at a preliminary hearing”; 2) made during a custodial interrogation for which “electronic recording was not feasible”; 3) a “voluntary statement . . . that has a bearing on the credibility of the person as a witness”; 4) a “spontaneous statement that is not made in response to a question”; 5) a “statement made after questioning that is routinely asked during the processing of the arrest of the person”; 6) a statement made during a custodial interrogation by a person who agreed to speak to the interrogator “only if a recording [was] not made of the statement”; 7) a “statement made during a custodial interrogation that [was] conducted out-of-state”; or 8) was “[a]ny other statement that may be admissible under law.” § 54-1o (e).
Consequences of unexcused failure to record: An unrecorded statement made in a custodial interrogation “shall be presumed to be inadmissible as evidence against the person in any criminal proceeding.” § 54-1o (b). However, the presumption of inadmissibility of an unrecorded statement made in a custodial interrogation “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.” § 54-1o (h).
Preservation: “Every electronic recording required under this section shall be preserved until such time as the person's conviction for any offense relating to the statement is final and all direct and habeas corpus appeals are exhausted or the prosecution is barred by law.” § 54-1o (c).
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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