New Mexico has a statute requiring recording of custodial interrogations.
Citation: N.M. Stat. Ann. § 29-1-16 (2006).
State and local law enforcement officers conducting custodial interrogations in New Mexico involving persons suspected of committing a felony, when reasonably able to do so, shall record the interrogations in their entirety. If conducted in a police station, interrogations shall be recorded by “audio or visual or both, if available.” §16-A, D.
Circumstances that excuse recording
Officers shall make recordings unless there is “good cause not to electronically record the entire custodial interrogation and [the officer] makes a contemporaneous written or electronic record of the reasons for not doing so.” Examples of good cause are that electronic recording equipment was not reasonably available; the equipment failed and obtaining replacement equipment was not feasible; and the suspect refused to be recorded. Recordings are not required of statements used for impeachment purposes. §16-B,F.
Consequences of unexcused failure to record
“This section shall not be construed to exclude otherwise admissible evidence in any judicial proceeding.” § 16-I.
There is at present no consequence provided for a law enforcement agency failing to follow the statutory recording statute. I have made a written recommendation to the members of the Supreme Court that they instruct the Court’s pattern jury instruction committee to prepare a jury instruction dealing with the consequences attendant upon a failure to record a custodial interrogation without a statutory excuse for failing to do so.
In State v. King, 300 P.3d 732, 763 (N.M. 2013), a defendant indicted for first degree murder, moved to suppress statements he made to police officers during a videotaped interrogation. The trial court granted the motion because the defendant invoked his right to remain silent. Based upon the videotape, the New Mexico Supreme Court affirmed, saying:
The district court’s grant of King’s motion to suppress is affirmed because King unambiguously invoked his right to remain silent and law enforcement did not scrupulously honor his right to remain silent by immediately ceasing the interrogation.
A Defender’s Guide to Federal Evidence: A Trial Practice Handbook for Criminal Defense Attorneys
This Guide to Federal Evidence is the only federal evidence handbook written exclusively for criminal defense lawyers. The Guide analyzes each Federal Rule of Evidence and outlines the main evidentiary issues that confront criminal defense lawyers. It also summarizes countless defense favorable cases and provides tips on how to avoid common evidentiary pitfalls. The Guide contains multiple user-friendly flowcharts aimed at helping the criminal defense lawyer tackle evidence problems. A Defender’s Guide to Federal Evidence is an indispensable tool in preparing a case for trial.
Modern Digital Evidence & Technologies in Criminal Cases
Modern cases need modern defenses, and modern lawyers can't practice with an outdated playbook. This program is a contemporary training that identifies emerging technologies and digital evidence encountered in today's criminal cases and arms you with the tools necessary to combat expert witnesses, prosecutorial overreach, and an uneducated judge and jury. This comprehensive CLE program covers both general aspects of new technologies as well as practical courtroom application and legal challenges to the use of these new technologies.
Top Shelf DUI Defenses: The Law, The Science, The Techniques (2021)
If you are serious about being an effective DUI defense advocate, or if you’re considering adding DUI defenses to your portfolio, you need to know the latest scientific and legal strategies to optimize your success at trial. Learn from the best-of-the-best in the field in this unique CLE Program, updated for 2021.
Defending Modern Drug Cases (2021)
From challenging the arrest and seizure to picking a jury and cross-examining police officers, defense attorneys handling drug cases must be able to construct a defense that will increase the chances of the client getting a positive result for your client.
Effective motion practice, juror selection, and storytelling have never been more important. This seminar will introduce defense counsel to techniques that have been used at recent drug trials to rebut specific claims and overcome the emotion created in today’s criminal legal system.