New Mexico has a statute requiring recording of custodial interrogations.
Citation: N.M. Stat. Ann. § 29-1-16 (2006).
General rule: 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.
Preservation: None given.
Discussion: 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:
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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.
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