Texas has two statutes requiring recording of custodial interrogations.
Citations: Tex. Crim. Proc. Code § 2.32; Tex. Crim. Proc. Code § 38.22; and Tex. Fam. Code § 51.095.
Tex. Crim. Proc. Code § 2.32 directs law enforcement officers to make electronic recordings of specified crimes; Tex. Crim. Proc. Code § 38.22 describes what is required for a recording of a custodial interrogation to be admissible; and Tex. Fam. Code § 51.095 outlines Texas’ requirements for the recordation of custodial statements of children.
Tex. Crim. Proc. Code § 2.32
Unless electronic recording is “infeasible,” law enforcement agents must make “a complete and contemporaneous electronic recording of any custodial interrogation that occurs in a place of detention” when the crime in question is: murder, capital murder, kidnapping, aggravated kidnapping, trafficking of persons, continuous trafficking of persons, continuous sexual abuse of young children, indecency with a child, improper relationship between educator and student, sexual assault, aggravated sexual assault, or sexual performance with a child.
Circumstances that excuse recording
Electronic recording is considered “infeasible” when 1) “the person being interrogated refused to respond or cooperate in a custodial interrogation at which an electronic recording was being made”; 2) “the statement was not made as the result of a custodial interrogation, including a statement that was made spontaneously by the accused and not in response to a question by a peace officer”; 3) “the peace officer or agent of the law enforcement agency conducting the interrogation attempted, in good faith, to record the interrogation but the recording equipment did not function, the officer or agent inadvertently operated the equipment incorrectly, or the equipment malfunctioned or stopped operating without the knowledge of the officer or agent”; 4) “exigent public safety concerns prevented or rendered infeasible the making of an electronic recording of the statement” ; or5) “the peace officer or agent of the law enforcement agency conducting the interrogation reasonably believed at the time the interrogation commenced that the person being interrogated was not taken into custody for or being interrogated concerning the commission of an offense listed in Subsection (b).”
Tex. Crim. Proc. Code § 38.22
No statement made during a custodial interrogation is admissible against the accused in a criminal proceedings unless: “1) an electronic recording . . . is made of the statement; 2) prior to the statement but during the recording the accused is given the warning in Subsection (a) of Section 2 above and the accused knowingly, intelligently, and voluntarily waives any rights set out in the warning; 3) the recording device was capable of making an accurate recording, the operator was competent, and the recording is accurate and has not been altered; 4) all voices on the recording are identified; and 5) not later than the 20th day before the date of the proceeding, the attorney representing the defendant is provided with a true, complete, and accurate copy of all recordings of the defendant made under this article.” § 3(a).
Circumstances that excuse recording
“Nothing in this article precludes the admission of a statement made by the accused…of a statement that is the res gestae of the arrest or of the offense, or of a statement that does not stem from custodial interrogation, or of a voluntary statement, whether or not the result of custodial interrogation, that has a bearing on the credibility of the accused as a witness, or of any other statement that may be admissible under law.” § 5. “Notwithstanding any other provision of this article, a written, oral or sign language statement of an accused made as a result of a custodial interrogation is admissible against the accused in a criminal proceeding in this state if the statement was obtained in another state in compliance with the law of that state or this state, or the statement was obtained by a federal law enforcement officer in this state or another state and was obtained in compliance with the laws of the United States.” § 8.
“Every electronic recording of any statement made by an accused during a custodial interrogation must be preserved until such time as the defendant’s conviction for any offense relating thereto is final, all direct appeals therefrom are exhausted, or the prosecution of such offenses is barred by law.” § 3(b).
Tex. Fam. Code § 51.095
The statement of a child made “while the child is in a detention facility … in the custody of an officer . . . [or] during or after the interrogation of the child by an officer if the child is in the possession of the Department of Family and Protective Services and is suspected to have engaged in conduct that violates a penal law of this state,” is admissible in a future proceeding if “the statement is recorded by an electronic recording device, including a device that records images.”
Circumstances that excuse recording
“This section and Section 51.09 do not preclude the admission of a statement made by the child if: (1) the statement does not stem from interrogation of the child under a circumstance described by Subsection (d); or (2) without regard to whether the statement stems from interrogation of the child under a circumstance described by Subsection (d), the statement is: (A) voluntary and has a bearing on the credibility of the child as a witness; or (B) recorded by an electronic recording device, including a device that records images, and is obtained: (i) in another state in compliance with the laws of that state or this state; or (ii) by a federal law enforcement officer in this state or another state in compliance with the laws of the United States.”
“An electronic recording of a child's statement made under Subsection (a)(5) or (b)(2)(B) shall be preserved until all juvenile or criminal matters relating to any conduct referred to in the statement are final, including the exhaustion of all appeals, or barred from prosecution.”
Several cases have held that Texas’ statutes do not prohibit introduction into evidence of a defendant’s written statement made following and as a result of an unrecorded custodial interview. See, e.g., Franks v. State, 712 S.W.2d 858, 860-61 (Tex. Crim. App. 1986); Rae v. State, No. 01-98-00283-CR, 2001 WL 125977, at *3 (Tex. App. 2001).
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The Texas statute does not require all custodial interrogations of criminal suspects to be electronically recorded from the Miranda warnings to the end. Suspects’ written statements may be obtained after the Miranda warnings are given and waived without electronic recording; the written statements are admissible under Article 38.22 § 2. Further, law enforcement officers may, without recording, conduct custodial statements of adults suspects, then electronically record the Miranda warnings and waiver, and take a recorded oral statement or confession which is admissible under § 3.
The exception contained in § 3(c) as to unrecorded oral statements has been expanded by the holding in Moore v. State, 999 S.W.2d 385, 400 (Tex. Crim. App. 1999); this provision includes “oral statements asserting facts or circumstances establishing the guilt of the accused if at the time they were made they contained assertions unknown by law enforcement but later corroborated.” The court also held that (1) the statement need only circumstantially demonstrate the defendant’s guilt, and (2) if this provision is applicable, the defendant’s entire unrecorded statement is admissible, not only the portion that was previously unknown.
Ragan v. State, 642 S.W.2d 489, 492 (Tex. Crim. App. 1982): “Section 3 of Article 38.22 shows a legislative recognition that electronically recorded statements are more trustworthy than unrecorded oral statements.” (Citing to footnote 5)
In Turner v. State, 252 S.W.3d 571, 583 (Tex. App. 2008), the defendant, charged with aggravated sexual assault, moved to suppress incriminating statements he made on videotape at a police station. The trial judge denied the defense motion to suppress. The reviewing court affirmed, stating: “. . . appellant was not in custody when he made his videotaped statements, appellant's argument regarding his failure to waive his Miranda rights is without merit. Assuming, for the purposes of this issue only, appellant was in custody, his argument is still without merit. The record establishes before appellant made his incriminating statements, [detective] Wienel read appellant his Miranda rights, and appellant indicated he understood his rights. Appellant then proceeded to answer Wienel’s questions. It is undisputed appellant failed to expressly waive his rights; however, we hold appellant implicitly waived his rights.”
In Joseph v. State, 309 S.W.3d 20 (Tex. Crim. App. 2010), a defendant convicted of murder argued on appeal that, during a custodial interrogation, he did not knowingly and intelligently waive his rights under a provision of the Texas Code of Criminal Procedure. In affirming, the Court of Criminal Appeals recounted in detail that the video showed the defendant was treated properly by the police officers, understood his rights, and freely waived his rights and voluntarily made incriminating statements.
In Woodall v. State, 376 S.W.3d 122 (Tex. App. 2012), a defendant convicted of indecency with a child argued on appeal that he was suffering from a mental disorder that prevented him from fully understanding his rights and knowingly and voluntarily waiving them. The Court of Appeals affirmed the trial court’s ruling as consistent with the evidence presented relating to the defendant’s mental state, the circumstances of his interrogation, and the videotape of the interrogation.
The Justice Project of Austin, Texas has published an interpretation of the Texas’ recording statute
Although at first glance it may seem as though the existing Texas statute mandates recorded interrogations, the key to understanding the statute is the phrase ‘statement of an accused made as a result of custodial interrogation.’ In other words, the only component of an interrogation that must be recorded in order to be admissible is the final statement, or the confession itself. Even then, only ‘oral or sign language statements’ must be recorded. Signed written statements, which are overwhelmingly relied upon, have no electronic recording requirement whatsoever. While recording of oral confessions is valuable because it presents the jury with the suspect’s final statement, it can be misleading because it does not show jurors all of the conversation and questions that lead up to that statement . . . (B)
The Timothy Cole Advisory Panel on Wrongful Convictions
The Panel, named for the first Texan to be posthumously exonerated of a crime through DNA testing, was created in 2009 by the Texas legislature (H.B. 498, 81st Leg.), with directions to advise the Texas Task Force on Indigent Defense in the preparation of a study regarding the causes and prevention of wrongful convictions, including (among others) recording of custodial interrogations. The Committee's report, issued in August 2010, included the following (page 18):
The State of Texas should adopt a mandatory electronic recording policy, from delivery of Miranda warnings to the end, for custodial interrogations in certain felony crimes. The policy should include a list of exceptions to recording and the judicial discretion to issue a jury instruction in the case of an excused failure to record.
Creating a complete, accurate, and reviewable document that captures the entirety of a custodial interrogation will help prevent wrongful convictions. The Panel therefore recommends that electronic recording be made mandatory in Texas for custodial interrogations in cases of murder, capital murder, kidnapping, aggravated kidnapping, continuous sexual abuse of a child, indecency with a child, sexual performance by a child, sexual assault, and aggravated sexual assault.
The Panel also recommends that exceptions to electronic recording be allowed for good cause, such as equipment malfunction, uncooperative witnesses, spontaneous statements, public safety exigencies, or instances where the investigating officer was unaware that a crime that required recorded interrogations had been committed. This takes into consideration the contingencies that investigating officers may face when dealing with a witness or suspect in the field.
The final recommendation from the Panel is that in instances where the Court determines that unrecorded interrogations are not the result of good faith attempts to record or that none of the exceptions to recoding apply, the Court may deliver an instruction to the jury that it is the policy of the State of Texas to record interrogations, and they may consider the absence of a recording when evaluating evidence that arose from the interrogation.
Although the Texas legislature enacted many of the Cole Advisory Panel’s recommendations, it did not enact the foregoing relating to electronic recording of custodial interrogations.
The Timothy Cole Exoneration Review Commission
In 2015, the legislature passed and the Governor signed HB 48, establishing the Timothy Cole Exoneration Review Commission (TCERC), which has 11 members and 4 advisory members representing a cross section of Texas criminal justice experts. The statute provides that the TCERC “may review and examine all cases in this state in which an innocent defendant was convicted and then, on or after January 1, 2010, was exonerated,” in order to, among other things, “suggest ways to prevent future wrongful convictions and improve the reliability of the criminal justice system” (Sec. 8(a)(1); “consider suggestions to correct the identified errors and defects through legislation or procedural changes” (Sec. 8(a)(3); ”review and update the research, reports, and recommendations of the Timothy Cole advisory panel…and shall include in its report under Section 9 the degree to which the panel’s recommendations were implemented” (Sec.8(c). The TCERC is to issue a detailed report of its findings or recommended policy changes” not later than December 1, 2016 (Sec. 11). ..Efforts are underway to persuade the TRERC to again recommend that the legislature enact a statute containing a statewide requirement that electronic recordings be made of custodial interrogations of felony suspects as specified in the Advisory Panel’s prior recommendation. The legislature’s next session is in 2017.