Nebraska has a statute requiring recording of custodial interrogations.
Citation: Neb. Rev. Stat. §§ 29- 4501-08 (2008).
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.
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.
Circumstances that excuse recording: 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.
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: 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. 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 (sic) for there not being an electronic recording.” § 4505(2).
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Preservation: None given.
State v. Loyuk, 289 Neb. 967, 968, 980-81, 857 N.W.2d 833, 838, 845-46 (2015): Anoroy Loyuk was convicted of first degree sexual abuse of a parolee after he made statements to a Nebraska State Patrol officer dressed in plainclothes in a conference room in an administrative building on the Lincoln Regional Center campus. Loyuk was not restrained during the interview, and the officer read Loyuk a Miranda warning prior to his statement. Loyuk appealed his conviction, claiming the officer failed to record the interview in violation of Neb. Rev. Stat. § 29–4503. The Supreme Court of Nebraska denied his appeal. It noted that only “statements made during a ‘custodial interrogation’ . . . must be electronically recorded,” and to determine whether a defendant was in custody during an interview, “the test is whether a reasonable person in the defendant’s position would have felt free to leave.” According to the Court, a reasonable person in Loyuk’s position would have felt free to leave since the interview took place in a “strictly administrative building”; “Loyuk was not handcuffed or otherwise restrained during the interview”; and “the officer advised him that he did not have to answer questions and ‘didn’t have to be there with [him].’” The Court concluded Loyuk was not in custody at the time of the interview, therefore Neb. Rev. Stat. § 29–4503 did not apply.
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 resulting 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 vehicle’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].
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