North Carolina has two statutes requiring recording of custodial interrogations.
Citation: N.C. Gen. Stat. § 15A-211 (2007, 2011).
General rule: The statute enacted in 2007 required recording of custodial interviews of homicide suspects. In 2011, an amendment was enacted expanding the recording requirement to custodial interviews of all interrogations of juveniles, and all suspects in “Class A, B1, or B2 felony, and any Class C felony of rape, sex offense, or assault with a deadly weapon with intent to kill inflicting serious injury.” A law enforcement officer conducting a custodial interrogation at a place of detention of a juvenile, and of persons suspected of committing any of the felonies shall make an electronic recording of the interrogation in its entirety. §§ (b), (d). Recordings must begin with the Miranda advice of rights, and end when the interview has completely finished, except for brief periods of recess upon request of the suspect or interrogator. The recording may be either video or audio, provided that “A video and audio recording shall be simultaneously produced whenever reasonably feasible, provided that a defendant may not raise this as a grounds for suppression of evidence.” § (c)(1). “If the record is a visual recording, the camera recording the custodial interrogation must be placed so that the camera films both the interrogator and the suspect.” § (c)(2). A statement made by a defendant in the course of a custodial interrogation may be presented as evidence against the defendant if an electronic recording was made of the custodial interrogation in its entirety, and the statement is otherwise admissible. § (e).
Statement of legislative purpose: The purpose of this Article is to require the creation of an electronic record of an entire custodial interrogation in order to eliminate disputes about interrogations, thereby improving prosecution of the guilty, while affording protection to the innocent and increasing court efficiency. § (a).
Circumstances that excuse recording: The statute does not apply to statements made during an interrogation conducted in another state by officers of the other state, or statements obtained by federal law enforcement officers; statements given when the officers are unaware that the person is suspected of homicide; or statements used only for impeachment purposes and not as substantive evidence. § (g).
The state may establish through clear and convincing evidence that an unrecorded statement was both voluntary and reliable, and that law enforcement officers had good cause for failing to electronically record the interrogation in its entirety. Good cause includes, but is not limited to, that the suspect refused to have the interrogation recorded, and the refusal was recorded; or the failure to record an interrogation in its entirety was the result of unforeseeable equipment failure, and obtaining replacement equipment was not feasible. § (e).
Consequences of unexcused failure to record: A failure to record as required by the statute shall be considered by the court in adjudicating motions to suppress a statement of the defendant made during or after a custodial interrogation. The failure to record as required shall be admissible in support of claims that the defendant’s statement was involuntary or is unreliable, provided the evidence is otherwise admissible. When evidence of compliance or noncompliance with the statute has been presented at trial, the jury shall be instructed that it may consider credible evidence of compliance or noncompliance to determine whether the defendant’s statement was voluntary and reliable. § (f).
If the judge finds that the defendant was subjected to a custodial interrogation that was not electronically recorded in its entirety, any statement made by the defendant after the non- electronically recorded custodial interrogation, even if made during an interrogation that is otherwise in compliance with this statute, may be questioned with regard to the voluntariness and reliability of the statement. § (e).
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Preservation: “The State shall not destroy or alter any electronic recording of a custodial interrogation of a defendant convicted of any offense related to the interrogation until one year after the completion of all State and federal appeals of the conviction, including the exhaustion of any appeal of any motion for appropriate relief or habeas corpus proceedings. Every electronic recording should be clearly identified and catalogued by law enforcement personnel.” § (h).
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