Montana has a statute requiring recording of custodial interrogations.
Citation: Mont. Code § 46-4-406 – § 46-4-411.
“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.
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; prevent disputes about a peace officer’s conduct or treatment of a suspect during an interrogation; 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.
Circumstances that excuse recording
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. § 46-4-409
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.
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. § 46-4-411.
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 the 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 of Montana 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.
In State v. Nixon, 369 Mont. 359, 360, 366, 374, 298 P.3d 408, 410, 414, 419 (2013), Jeffrey Nixon was convicted of accountability for homicide, robbery, and burglary after he made statements during a videotaped custodial interrogation about which an officer testified at Nixon’s trial. Nixon appealed, claiming the trial court should have suppressed the statements from his custodial interrogation, arguing that “he invoked his right to remain silent or, in the alternative, that he did not voluntarily waive his rights.” The Supreme Court of Montana denied Nixon’s appeal after reviewing the videotape of his interrogation. The Court stated that the “video recording of Nixon's interview reveals that [the police officer] read the Miranda warnings to Nixon and provided him with a written copy of his rights, which Nixon read and signed. At the suppression hearing, Nixon testified that he understood each of those rights.” Further, the Court noted, “[t]here is no evidence in the record of any coercive or other improper conduct by the police that would render Nixon’s waiver involuntary. In fact, Nixon cannot point to any moment during the custodial interrogation when his state of intoxication, his lack of sleep, the supposed psychological coercion he experienced, or the confusing waiver form actually affected his ability to voluntarily, knowingly, and intelligently waive his Miranda rights.”
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In State v. Kasparek, 375 P.3d 372, 374, 375, 378 (Mont. 2016), Jason Kasparek was arrested on suspicion of burglary and placed in a holding cell. A police officer testified at trial that Kasparek confessed to the crime while in the holding cell, in an unrecorded statement. Kasparek was convicted. He appealed, claiming the police officer’s failure to record his statement violated § 46–4–408, MCA. The Supreme Court of Montana ruled against Kasparek. It noted that “the record shows that Kasparek’s statements were voluntary and reliable; Kasparek was read his rights immediately after he began to speak and he was not coerced or otherwise induced to speak [and] . . . [the police officer] testified that he memorialized the interrogation shortly after its conclusion to ensure its accuracy and reliability.” The court concluded that “[t]he State established by a preponderance of the evidence that Kasparek’s statements were voluntary and reliable; as such they qualify for the exception for the electronic recording of custodial interrogations pursuant to § 46–4–409, MCA. And, since Kasparek's interrogation was conducted in a manner consistent with his substantial rights, the lack of a recording will not alone warrant a suppression of his statements.”
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.