Delaware has no statute or court rule requiring recording of custodial interrogations.
Harris v. State, 116 A.3d 1243, 1243 (Del. 2015): Harris was placed in custody and read his Miranda rights while he was seated in his living room. Harris then admitted a gun found in his apartment belonged to him. Later, Harris argued his statement should be suppressed, since the officer that interrogated him did not record the interview. The Supreme Court of Delaware ruled against Harris, and held “there is no requirement that a police officer must record a defendant’s post-Miranda statements.”
State v. Mills, No. 1510004179, 2016 WL 4502807, at *1, 2, 12 (Del. Super. Ct. Aug. 25, 2016): The defendant moved to suppress statements given during a custodial interview in which the police officers neglected to read him his Miranda rights until one hour into the interrogation. The Superior Court of Delaware granted his motion to suppress, and stated that “[i]n reviewing the Statement Transcript, the Court noted several discrepancies and therefore used the audio recording of the interview to reconcile the Statement Transcript,” demonstrating the value of having electronic recordings of custodial interrogations.
State senators in the Delaware General Assembly introduced SB 162 on March 20, 2018, which, if passed, will mandate audio or audiovisual recordation of custodial interrogations related to specified violent felonies and delinquent acts. The act proposes exceptions to the recordation mandate for the following reasons: 1) exigent circumstances; 2) a suspect’s refusal to be recorded; 3) the interrogation occurs in another jurisdiction; 4) the interrogator reasonably believes the offense involved is not one the act mandates must be recorded; 5) when the interrogator or interrogator's supervisor reasonably believes electronic recording would reveal a confidential informant’s identity or jeopardize the safety of the officer, the person interrogated, or another individual; and 6) equipment malfunctions. See Senate Bill 162, Delaware General Assembly Website (3/20/2018) https://legis.delaware.gov/BillDetail/26401.
SB 162 would also direct the Attorney General of Delaware to adopt rules to implement SB 162’s prescriptions, which would have to include directives on the manner in which custodial interrogations should be made; the manner in which recordings of custodial interrogations should be collected and reviewed; a process for explaining noncompliance with the recordation mandate; and a process for monitoring the chain of custody of recordings of custodial interrogations, among other things. See An Act to Amend Title 11 of the Delaware Code Relating to Electronic Recordation of Custodial Interrogations, S.B. 162, 149th Delaware General Assembly, § 2015 (2018).
Law Enforcement Guidelines
In December 2015, the Attorney General of Delaware announced guidelines for video recording of custodial interrogations, from the Miranda warnings to the end of the interviews, applicable to all law enforcement agencies in Delaware. He stated, “Increasingly, both at the federal and state levels, it seems to be recognized as a good practice. Having a recording is always better than not having one.” The Guidelines state:
Scope and Effect. This policy establishes the position of the Delaware Department of Justice (DOJ) with respect to the electronic recordation of statements by of individuals in the custody of Delaware Iaw enforcement agencies. DOJ does not have authority to mandate the manner in which statements are recorded by law enforcement agencies, or whether they are recorded. However, DOJ does make discretionary decisions regarding the charging and prosecution of criminal cases, and those decisions are guided by the strength and reliability of the evidence gathered by law enforcement agencies. Adherence to the practices outlined in this policy, which are designed to ensure strong and reliable evidence, will in some instances affect the strength of a case from DOJ’s perspective.
Recording As Default Option. The custodial interview of an individual in a place of detention with suitable recording equipment should be electronically recorded, subject to the exceptions defined below. No supervisory approval should be required for recording such custodial interviews…
- Electronic recording. When necessary equipment is available, electronic recording should be done through video recording, and wen necessary equipment is available that video should allow a viewer to see both the individual being questioned and the individual(s) asking the questions. When video recording is not available, audio recording may be utilized.
- Scope of offenses. If otherwise required by this policy, recording should be done for custodial interrogations relating to all alleged criminal offenses, misdemeanor and felony.
- Scope of recording. Electronic recording should begin as soon as a subject enters the interview room or area and continue until the interview is completed.
- Recording may be overt or covert. Recording may be covert or overt, as covert recording constitutes one-party consent monitoring which is permitted by Delaware state law….
Circumstances that excuse recording: The draft excepts instances in which the interviewee is willing to give an unrecorded but not a recorded statement; if law enforcement officials are required for immediate public safety reasons a recoding need not take place.; a recording is not reasonably practical, for example, owing to equipment malfunction, an unexpected need to move an interview room, or a need for multiple interviews in a limited time period exceeding available recording devices. A DOJ attorney may authorize a non-recorded interview for reasons that do not fall within the prior exceptions when a significant and articulable law enforcement purpose justifies, and the rationale is written.
The draft guidelines are under review by police chiefs and police union leaders.
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