New Hampshire has no statute or court rule requiring 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.
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.
In State v. Velez, 150 N.H. 589, 592, 842 A.2d 97, 100 (2004), the New Hampshire Supreme Court neglected to extend its Barnett ruling, and stated the following:
We see no need to extend our recording rule in Barnett to encompass the full recording of both post-Miranda and pre-Miranda statements as a prerequisite for the State’s introducing a complete recording of a defendant's post-Miranda statement . . . The Miranda warnings provide a logical dividing line for our requirements as laid out in Barnett, because such warnings afford the defendant an objective awareness that anything he says can and will be used against him in court, see State v. Roache, 148 N.H. 45, 48, 803 A.2d 572 (2002), and because, for example, it would be impractical to require the police to record every interaction with every potential defendant in the wide variety of non-custodial situations that arise daily in law enforcement.
Departments we have identified that presently record:
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