By Rhea S. Arledge, Legislative Counsel

Mandatory Recording of Police Custodial Interrogations: the Past and the Current Trend

In 2004 the National District Attorneys Association adopted the following policy on the electronic recording of statements:

The National District Attorneys Association opposes the exclusion of otherwise truthful and reliable statements by suspects and witnesses simply because the statement was not electronically recorded.

Background

America’s prosecutors encourage police agencies to record statements by suspects and witnesses but recognize that there are circumstances in which the statements are not or could not be recorded. In a truth-based justice system we should always want juries to have as much truthful information as possible.

The use of juries as the trusted finders of fact in criminal trials throughout the courts of the United States provides the best assurance that true and correct verdicts will be found.

Every concern raised by proponents of mandatory electronically recorded statements is properly resolved by motions to suppress, jury trials, or appellate action. Virtually every jurisdiction in the United States requires prosecutors not only to prove the accuracy of a confession, but also to prove that it was freely, voluntarily, and knowingly given.

Exclusion of reliable evidence harms the truth seeking process and increases the risk of miscarriages of justice.

Adopted by the Board of Directors, October 23, 2004 (Monterey, CA)

To date there are approximately eleven states that mandate the recording of custodial police interrogations. These mandates have originated either through state court decisions or state legislation. The mandates are diverse and vary as to the crimes to which the recording requirement applies, the method of recording, the exceptions to the recording mandate, the consequences for failure to comply with the requirements, the definition of custodial interrogation, and the definition of law enforcement officer.

This article is not intended as a comprehensive study of all state mandates but simply as an overview of the number of states with such mandates and the increasing tendency of state legislatures to consider bills requiring the recording of custodial police interrogations. The following chart provides a summary of those states and their mandates. Detailed information for each state is available on the National District Attorneys Association’s Web site at www.ndaa.org.

Judicial Mandates

Approximately five states currently require the recording of custodial police interrogations as the result of judicial mandate.

The mandates in Alaska, Massachusetts, Minnesota and Wisconsin were a result of specific court decisions while the mandate in New Jersey was effectuated through the adoption of Rule 3:17, Electronic Recordation by the New Jersey Supreme Court.

Massachusetts, Alaska and Minnesota do not specify the crimes for which the recording requirement is applicable. Wisconsin requires recording in juvenile interrogations and New Jersey requires recording in a variety of crimes from murder to any crime involving the possession or use of a firearm.

Consequences for failing to comply with the recording mandate vary from inadmissibility of evidence to the reading of a cautionary instruction to the jury.

Fairly recently the Iowa Supreme Court in State v. Hajtic, 724 N.W. 2d 449, encouraged the recording of custodial interrogations without making the process mandatory. The case, in part, centered on the voluntariness of a waiver of Miranda rights by a 17-year-old burglary suspect. The court in the instant case had the benefit of a videotape of the suspect’s waiver of Miranda rights and his subsequent statement. After a fairly extensive discussion of the existing state court decisions mandating the electronic recording of custodial interrogations the court stated, “We believe electronic recording, particularly videotaping, of custodial interrogations should be encouraged, and we take this opportunity to do so.”

Legislative Mandates (Pre-2007 Legislative Session)

Prior to the 2007 state legislative session there were approximately seven states with legislation mandating the recording of custodial police interrogations.

While Texas law is applicable to any crime, Illinois recording requirements are applicable to only homicide and aggravated DUIs involving a fatality. The remaining states of Maine, New Mexico, North Carolina, Wisconsin, along with the District of Columbia, require recording in “serious crimes,” felony offenses, homicide, and “crimes of violence” respectively.

Consequences for failing to record the interrogations range from imposition of a civil violation against the law enforcement agency to the presumption that the statement given was involuntary to inadmissibility of the evidence.

2007 State Legislative Session

During the 2007 state legislative session approximately 23 state legislative bodies considered bills concerning the mandatory taping of police custodial interrogations. Of those states, two enacted legislation touching on the issue.

In North Carolina, House Bill 1626 requires that an electronic recording be made of all police custodial interrogations in their entirety during homicide investigations. Failure to comply with the mandate will:

• Result in subsequent statements being questioned by the court with regard to the voluntariness and reliability of the statements;
• Be considered by the court when ruling on motions to suppress the defendant’s statement made during the custodial interrogation or afterwards; and
• Result in an instruction to the jury providing that evidence of noncompliance with the recording requirements may be considered in determining the voluntariness/reliability of the defendant’s statements.

The legislation does provide that in certain situations the mandate of recording is not applicable. Those situations include the following:

• The statement was made in open court during a preliminary hearing, grand jury or trial.
• The statement was made spontaneously.
• The statement was made during the course of routine police processing.
• The statement was obtained by a federal law enforcement officer or the interrogation was conducted in another state without a recording mandate.
• The statement is used for impeachment purposes only.
• The law enforcement officer was not aware that a homicide was involved at the time of the interrogation.

In addition, if the statement does not fit into one of the above categories, the legislation provides that the state may prove by clear and convincing evidence that there was “good cause” for the law enforcement officer to not have recorded the interrogation. All electronic recordings must be saved in their present state for a period of one year following the completion of all state and federal appeals.

Vermont Senate Bill 6 signed by the governor on May 30, 2007, establishes a 12-member committee to study federal and state models for the recording of interrogations and to develop best practices for the audio and audiovisual recording of custodial interrogations during felony investigations. In addition, the legislation requires the committee to research state and local policies concerning the electronic recording of interrogations and to report the committee’s finding and recommendation to the judiciary committees.

NCCUSL: National Conference of Commissioners on Uniform State Laws

While state legislatures no doubt will continue to consider mandated recording of custodial police interrogations in future sessions, the National Conference of Commissioners on Uniform State Laws has begun work on this issue.

The NCCUSL Study Committee on Electronic Recording of Custodial Interrogations, met on May 3 at the offices of the American Bar Association in Washington, DC, to discuss and recommend whether the NCCUSL should appoint a drafting committee to develop a uniform state statute on the mandatory recording of custodial police interrogations. The May 3 meeting was followed on May 22 with a conference call during which it was agreed that the committee would recommend that a drafting committee be appointed. The Executive Committee of NCCUSL accepted this recommendation in August.

NDAA staff will make all efforts to notify its membership of the conference’s continuing activities.

*Special thanks to Jennifer Torre for her research of state legislation during the 2007 session.