Recording federal custodial interviews

American Criminal Law Review

Volumn 45, Issue 4, 2008, Pages 1297-1346

  Thomas, P Sullivan ^a  

^a NONE

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EID: 59249087604     PISSN: 01640364     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (247)

1. People v. Shirley, 723 P. 2d 1354, 1378 (Cal. 1982) (citations omitted) (quoting SIR FREDERIC C. BARTLETT, REMEMBERING 204-05; 213 (1964 ed.)).
2. See Letter from Paul K. Charlton, U.S. Attorney, Dist. of Ariz., to Timothy Landrum, Special Agent in Charge, DEA, Phoenix, Ariz. (Feb. 9, 2006) [hereinafter Charlton Letter] (on file with author).
3. The agencies are the Federal Bureau of Investigation (FBI), the Drug Enforcement Agency (DEA), and the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).
4. In this article, I use the words "police" and "officer" to include both state and local police officers and sheriffs' deputies; "department" to include both state and local police departments and county sheriffs' offices; "suspects" to refer to persons who are under arrest and suspected of committing felonies; "custodial" to refer to questioning that occurs inside police detention facilities; and "recording" to include audio, video or both.
5. See Charlton Letter, supra note 2.
6. See Memorandum from Kurt M. Altaian, Assistant U.S. Attorney, Dist. of Ariz., to Paul K. Charlton, U.S. Attorney, Dist. of Ariz. (Nov. 21, 2005) (on file with author); Memorandum from Dyanne C. Greer, Assistant U.S. Attonry, Dist. of Ariz. To Paul K. Charlston, U.S. Attorney, Dist. of Ariz. (Mar. 6, 2006) (on file with author).
7. See Memorandum from Kimberly M. Hare, Assistant U.S. Attorney, Dist. of Ariz., to Paul K. Charlton, U.S. Attorney, Dist. of Ariz. (Mar. 3, 2006) (on file with author).
8. E-mail from Michael Elston, Office of Deputy Attorney General (ODAG), to Paul K. Charlton, U.S. Attorney, Dist. of Ariz., (Feb. 28, 2006 22:05) (on file with author).
9. Letter from Paul K. Charlton, U.S. Attorney, Dist. of Ariz., to Paul J. McNulty, Acting Deputy Attorney Gen., (Mar. 8, 2006) (on file with author).
10. E-mail from Ronald J. Tenpas, Assoc. Deputy Attorney Gen., (June 2, 2006 14:55) (on file with author).
11. A representative of the United States Marshals Service responded that the agency did not take a position because their agents do not normally conduct interviews seeking confessions from suspects and that the occasional confessions obtained are usually made spontaneously in vehicles or remote locations. E-mail from Steve Rogue, U.S. Marshals Serv., to Ronald J. Tenpas, Assoc. Deputy Attorney Gen., (June 13, 2006 12:54) (on file with author).
12. Letter from Valerie Caproni, Gen. Counsel, FBI, to Ronald J. Tenpas, Assoc. Deputy Attorney Gen., (June 13, 2006) (on file with author). In her letter, the General Counsel wrote that, in her view, the absence of recordings was not the decisive factor in the three cases cited by the Arizona U. S. Attorney, although she conceded that in two of the cases the agents' reports (known as 302s) were deficient: "[T]he claim by the defendant that he needed an interpreter during the interview [was omitted from the 302]," and "the probationary agent's FD-302 was lacking in detail." Id. at 3-4.
13. Memorandum from Office of the Gen. Counsel, FBI, Electronic Recording of Confessions and Witness Interviews (Mar. 23, 2006), available at http://www.nytimes.com/packages/pdf/national/20070402-FBI-Memo.pdf [hereinafter FBI Gen. Counsel Memo].
14. See id.; In an internal DOJ memoranda prepared during the later internal evaluation of the pilot program proposal, the following comment was made concerning the FBI's policy: The FBI's current policy creates a presumption that recording confessions is an unwise law enforcement technique. The FBI's decision to vest the discretion in the SAC to create 'exceptions' to its policy, moreover, makes it difficult for any agent (or even the agent's immediate supervisor) to exercise his or her discretion to record a confession in any particular case or circumstance in which a recording may be warranted. Accordingly, although the FBI argues that it allows its agents the flexibility to record confessions, the practical effect of allowing only the SAC to grant an exception to its policy is the creation of a heavy presumption against taping. Memorandum from Mythili Raman, Senior Counsel to the Deputy Attorney Gen., to William Mercer, Principal Assoc. Deputy Attorney Gen. (June 20, 2006) (on file with author).
15. Memorandum from Thomas Harrigan, Chief of Enforcement Operations, DEA, to Ronald J. Tenpas, Assoc. Deputy Attorney Gen. (June 13, 2006) [hereinafter DEA Memo] (on file with author).
16. E-mail from Thomas J. Jaworski, Office of Chief Counsel, ATF, to Ronald J. Tenpas, Assoc. Deputy Attorney Gen. (June 13, 2006, 14:59) [hereinafter ATF 2006 Memo] (attaching Memorandum from the Bureau of Alcohol, Tobacco, Firearms and Explosives on Electronic Recording of Interrogations and Confessions (2005) [hereinafter ATF 2005 Memo]) (on file with author).
17. E-mail from Rich Murphy, Assistant U.S. Attorney, N. D. Iowa, to Ronald J. Tenpas, Assoc. Deputy Attorney Gen. (June 13, 2006, 18:22) (on file with author).
18. At the end of June, 2006, Mr. Charlton wrote Mr. Mercer that he had heard the agencies opposed the pilot program. E-mail from Paul K. Charlton, U.S. Attorney, Dist. of Ariz., to Bill Mercer (June 19, 2006, 12:30:50) (on file with author). Mr. Mercer responded that one basis for opposition was lack of an "evaluation plan." E-mail from Bill Mercer, to Paul K. Charlton, U.S. Attorney, Dist. of Ariz. (June 22, 2006, 8:34) (on file with author). Several days later, Mr. Charlton sent his suggestions for evaluating the success of the project: During the year the program was in effect, one squad of each agency would record in accordance with the new policy, and another would follow existing non-recording policy. The results would be compared to determine whether the cases in which statements were recorded resulted in better guilty pleas and more convictions, and savings in resources, compared to cases in which no recordings were sought; that following jury trials, the trial judges would be asked to allow the Assistant United States Attorneys (AUSAs) to poll jurors to determine whether it made a difference if a confession had or had not been taped; and that at the end of the program a questionnaire would be distributed to participating AUSAs and agents for their comments and anecdotal impressions regarding taping. E-mail from Paul K. Charlton, U.S. Attorney, Dist. of Ariz., to Bill Mercer (June 25, 2006, 20:54:40) (on file with author).
19. Mr. Charlton was informed on December 7, 2006 that he was to be dismissed. He announced his resignation on December 19, 2006. Allegra Hartley, Timeline: How the U.S. Attorneys Were Fired, US NEWS & WORLD REPORT, Mar. 21, 2007, http://www.usnews.com/usnews/ news/articles/070321/21attorneystimeline.htm. In September 2008, the DOJ Offices of the Inspector General and Professional Responsibility published a report containing a review of the circumstances surrounding Mr. Charlton's efforts to institute the pilot recording program in Arizona. UNITED STATES DEPARTMENT OF JUSTICE, OFFICE OF THE INSPECTOR GENERAL AND OFFICE OF PROFESSIONAL RESSPONSIBILITY, AN INVESTIGATION INTO THE REMOVAL OF NINE U.S. ATTORNEYS IN 2006 223-26 (2008), http://www.usdoj.gov/oig/special/s0809a/final.pdf The authors concluded that Mr. Charlton's conduct in regard to the tape recording matter was a "significant factor" in the decision of the Attorney General's Chief of Staff to include Mr. Charlton's name on the list of United States Attorneys targeted for removal. Id. at 35-53, 71-73, 242-45.
20. Consideration of Issuing Subpoenas to Former United States Attorneys: Hearing Before the Subcomm. on Commercial and Admin. Law of the H. Comm. on the Judiciary, 110th Cong. 86-88 (Mar. 6, 2007) (statement of Paul K. Charlton).
21. Id.
22. Brian P. Boetig et al., Revealing Incommunicado; Electronic Recording of Police Interrogations, FBI L. ENFORCEMENT BULL., Dec. 2006. The article stated the following: Testimony regarding what transpired inside the interrogation room can become tainted if only the participants witnessed what occurred. Conflicting statements by the police and defendant regarding the presentation and waiver of Miranda warnings, requests for an attorney, the use of coercive tactics, and the mere presence of a confession expose the spectrum of issues that can arise. Many law enforcement agencies and courts have recognized and accepted electronic recording as a just and viable manner to collect and preserve confession evidence, the single most valuable tool in securing a conviction in a criminal case.... As the most accurate and efficient method of collecting and preserving confession evidence, the benefits of recording to the criminal justice system and community are unequivocal. Id. at 1-8 (citations omitted).
23. See generally THOMAS P. SULLIVAN, CENTER ON WRONGFUL CONVICTIONS, NORTHWESTERN UNIVERSITY SCHOOL OF LAW, POLICE EXPERIENCES WITH RECORDING CUSTODIAL INTERROGATIONS 1 (2004), http://www.jenner.com/policestudy; Thomas P. Sullivan, Electronic Recording of Custodial Interrogations: Everybody Wins, 95 J. CRIM. L. & CRIMINOLOGY 1127 (2005);
24. Thomas P. Sullivan, The Time Has Come for Law Enforcement Recordings of Custodial Interviews, Start to Finish, 37 GOLDEN GATE U. L. REV. 175 (2006);
25. Thomas P. Sullivan, Electronic Recording of Custodial Interrogations, THE CHIEF OF POLICE: NAT'L ASS'N OF CHIEFS OF POLICE, Nov.-Dec. 2005, at 17;
26. Thomas P. Sullivan, Federal Law Enforcement Should Record Custodial Interrogations, FED. LAW., Sept. 2006, at 44;
27. Thomas P. Sullivan, Police Experience with Recording Custodial Interrogations, JUDICATURE, Nov.-Dec. 2004, at 132;
28. Thomas P. Sullivan, Recording Custodial Interrogations: The Police Experience, FED. LAW., Jan. 2005, at 20;
29. Thomas P. Sullivan, Andrew W. Vail, Howard W. Anderson, The Case for Recording Police Interrogations, LITIG., Spring 2008, at 30;
30. Thomas P. Sullivan, The Police Experience: Recording Custodial Interrogations, CHAMPION, Dec. 2004, at 24.
31. As to how I became involved: From 2000 to 2002, I served as co-chair of the Illinois Governor's Commission on Capital Punishment, convened to study and make recommendations for reforms to the Illinois capital punishment system. In our final report, we recommended that all questioning of homicide suspects in police facilities, from the Miranda warnings to the end, be recorded electronically unless an exception applied, and a statute to that effect was thereafter enacted. STATE OF ILLINOIS, GOVERNOR'S COMM'N ON CAPITAL PUNISHMENT, 24-28 (2002), available at http://www.idoc.state.il. us/ccp/ccp/reports/commission-report/complete-report.pdf; see 725 ILL. COMP. STAT. ANN. 5/103-2.1 (2008);
32. 705 ILL. COMP. STAT. ANN. 405/5-401.5 (2003). My interest was piqued when Illinois police and sheriff associations appeared before the Illinois legislature to oppose the proposed law; whereas I believed recording would serve the interests of the law enforcement community-the police appeared to be taking a position inconsistent with their own best interests. To attempt to resolve this apparent anomaly, I decided to locate departments that recorded custodial interviews and learn firsthand of their experiences. I received support from my law firm in the form of associate and paralegal assistance, and payment of telephone and mailing charges. It was during the course of this project that I obtained the documents concerning the proposed Arizona pilot program described in Part I above. The Illinois-based firm of Wicklander-Zulawski & Associates, which trains law enforcement officers, assisted by asking their trainees to complete my survey form as to their recording practices.
33. See Stephan v. State, 711 P. 2d 1156, 1162 (Alaska 1985) (requiring that custodial interrogations in a place of detention, including the giving of the accused's Miranda rights, must be electronically recorded); State v. Scales, 518 N.W. 2d 587, 591 (Minn. 1994) ("The recording of custodial interrogations 'is now a reasonable and necessary safeguard.... '") (citations omitted).
34. After each telephone interview, I have written a personal letter to the officer with whom we spoke, with our memorandum attached, requesting that inaccuracies and omissions be brought to my attention. The memoranda, letters, and responses (including those from departments that do not record), and the forms obtained by the Wicklander firm, have been carefully indexed and filed, together with regulations on recording we have obtained from dozens of police and sheriff departments.
35. See infra pp. 1337-1341.
36. We have a lengthy and ever-growing list of leads still to be contacted.
37. See generally, Sullivan, Police Experiences with Recording Custodial Interrogations, supra note 23, at 17-18;
38. Sullivan, The Case for Recording Police Interrogations, supra note 23, at 34-36.
39. Direct quotations from police located throughout the country may be found in previous articles. See generally Sullivan, Electronic Recording of Custodial Interrogations, supra note 23;
40. Sullivan, Police Experiences with Recording Custodial Interrogations, supra note 23, at 6-17;
41. Sullivan, Recording Custodial Interrogations:. The Police Experience, supra note 23.
42. See Sullivan, Electronic Recording of Custodial Interrogations, supra note 23, at 17;
43. Sullivan, Police Experiences with Recording Custodial Interrogations, supra note 23, at 7-9.
44. See Jim Trainum, I Took A False Confession-So Don't Tell Me It Doesn't Happen!, THE CALIFORNIA MAJORITY REPORT, Sep. 20, 2007, http://www.camajorityreport.com/index.php? module=articles&func=display& aid=2306. The author, a veteran District of Columbia detective, explains in candid and dramatic terms how he obtained a videotaped confession he was convinced was true. When evidence of the suspect's ironclad alibi was discovered, the detective reviewed the tape, and saw how he and his fellow detectives had "unintentionally fed [the suspect] details that [the suspect] was able to parrot back to [them]," thus extracting a false confession. Id.
45. See, e.g., United States v. Hensley, No. 2:06-CR-168-PS, 2007 WL 518780 (N.D. Ind. 2007) (suppressing a defendant's confession because a videotape showed that an FBI agent ignored a suspect's request for a lawyer).
46. In Part VI. A, we refer to recent jurors' comments about the desirability of recordings, similar to those cited by Mr. Charlton in support of his proposed recording program. In the recent O.J. Simpson prosecution, jurors found recorded evidence more reliable than the testimony of witnesses who were given plea deals. See OJ jury relied on secret recordings, ASSOC. PRESS, Oct. 6, 2008, available at http://entertainment.aol.co. uk/film/oj-juryrelied-on-secret-recordings/article/200810060132110664641.
47. Commonwealth v. DiGiambattista, 813 N.E. 2d 516, 529 (Mass. 2004).
48. State v. Hajtic, 724 N.W. 2d 449, 454 (Iowa 2006).
49. Noah Schaffer, Legacy of Supreme Judicial Court's Decision about Confessions to Police that are not Tape-Recorded, MASS. LAW. WKLY., Apr. 2, 2007 (quoting Brian J. Buckley).
50. See D.C. CODE §§ 5-116.01 (2005);
51. ME. REV. STAT. ANN. tit. 25, § 2803-B(1)(K) (2007);
52. MD. CODE ANN., CRIM. PROC. § 2-402 (West 2008);
53. R.R.S. Neb. § 29-4501-4508 (2008);
54. N.M. STAT. ANN. § 29-1-16 (West 2006);
55. N.C GEN. STAT. § 15A-211 (2008);
56. WIS. STAT. §§ 968.073, 972.115 (2005);
57. see also State v. Jerrell, 699 N.W. 2d 110, 123 (Wis. 2005) (requiring police to electronically record all custodial interrogations of juveniles "where feasible, and without exception when questioning occurs at a place of detention"). This ruling was incorporated, in part, in the Wisconsin statute. See WIS. STAT. §§ 968.073, 972.115 (2005).
58. See Sen. B. 371, 2008 Sen., (N.J. 2008);
59. Ass. B. 8806, 2007-2008 State Ass. (N.Y. 2008);
60. H.B. 6183, 2008 H. Rep. (Mich. 2008);
61. S.B. 358, 127th Gen. Assem., Reg. Sess. (Ohio 2008);
62. S.B. 1590, 2007-2008 Sen. (Cal. 2008).
63. The ULC is a non-profit organization that drafts statutes in areas of the law where uniformity among the states is deemed desirable. When the Conference approves a draft statute, the commissioners advocate its enactment in their home states. The Conference has drafted more than 200 laws on numerous subjects in various fields of law.
64. See Stephan v. State, 711 P. 2d 1156, 1162 (Alaska 1985);
65. State v. Scales, 518 N.W. 2d 587, 591 (Minn. 1994).
66. State v. Hajtic, 724 N.W. 2d 449, 455-58 (Iowa 2006).
67. Commonwealth v. DiGiambattista, 813 N.E. 2d 516, 533-34 (Mass. 2004). Following this ruling, the Massachusetts Attorney General and District Attorneys Association wrote in a September 2006 Justice Initiative Report: "Law enforcement officers shall, whenever it is practical and with the suspect's knowledge, electronically record all custodial interrogations of suspects and interrogations of suspects conducted in places of detention." MASSACHUSETTS DISTRICT ATTORNEYS ASSOCIATION, REPORT OF THE JUSTICE INITIATIVE 14 (2006), http://www.mass.gov/Dmdaa/docs/justice-iniative-report/justice-initiative- report.pdf.
68. N.J. SUP. CT. R. 3:17 (2008);
69. see also State v. Cook, 847 A. 2d 530 (2004) (establishing a committee to study and make recommendations on the use of electronic recordation of custodial interrogations). A Special Committee appointed, by the New Jersey Supreme Court published a report explaining at length the value to all concerned yielded by custodial recordings. See REPORT OF THE SUPREME COURT SPECIAL COMMITTEE ON THE RECORDATION OF CUSTODIAL INTERROGATIONS (2005), http://www.judiciary.state.nj.us/notices/reports/cookreport.pdf [hereinafter NEW JERSEY SUPREME COURT REPORT];
70. see also REPORT ON THE IMPLEMENTATION OF THE REQUIREMENT FOR RECORDATION OF CUSTODIAL INTERROGATIONS (2007), http://www.judiciary.state.nj.us/notices/ reports/report070802.pdf (providing information on implementation of custodial recording requirement).
71. Hajtic, 724 N.W. 2d at 456.
72. DiGiambattista, 813 N.E. 2d at 530.
73. See, e.g., State v. Jones, 49 P. 3d 273, 279 (Ariz. 2002);
74. People v. Raibon, 843 P. 2d 46, 49 (Colo. Ct. App. 1993);
75. State v. James, 678 A. 2d 1338, 1360 (Conn. 1996);
76. Smith v. State, 548 So. 2d 673, 673-74 (Fla. Dist. Ct. App. 1989);
77. State v. Crail, 35 P. 3d 197, 206 (Haw. 2001);
78. Stoker v. State, 692 N.E. 2d 1386, 1390 (Ind. Ct. App. 1998);
79. State v. Buzzell, 617 A.c 2d 1016, 1018 (Me. 1992);
80. Williams v. State, 522 So. 2d 201, 208 (Miss. 1988);
81. State v. Worrall, 976 P. 2d 968, 977 (Mont. 1999);
82. State v. Godsey, 60 S.W. 3d 759, 772 (Tenn. 2001);
83. State v. James, 858 P. 2d 1012, 1018 (Utah Ct. App. 1993);
84. State v. Kilmer, 439 S.E. 2d 881, 893 (W. Va. 1993). I believe that other state reviewing courts, when next presented with this issue, will follow the reasoning of the Supreme Courts of Alaska, Minnesota, and Wisconsin and order that custodial interviews be recorded, or (more likely) direct that cautionary jury instructions be given about non-recorded interviews, as directed by the highest courts of Massachusetts and New Jersey.
85. See MODEL CODE OF PRE-ARRAIGNMENT PROCEDURE § 130.4 (1975), available at http://www.nacdl.org/sl-docs.nsf/a1bf9dda21904164852566d50069b69c/ e1a4d2c7cf86cbed852570820072a805/$FILE/ALI-Model-Recording-Code-1975.pdf;
86. REPORT OF THE EYEWITNESS IDENTIFICATION AND CUSTODIAL INTERROGATIONS STUDY COMM. 5 (2007), http://www.leg.state.vt.us/reports/2008ExtemalReports/228563.pdf;
87. THE JUSTICE PROJECT, ELECTRONIC RECORDING OF CUSTODIAL INTERROGATIONS: A POLICY REVIEW (2007), http://www.thejusticeproject.org/wp- content/uploads/polpack-recording-fin2.pdf;
88. THE CTR. FOR POLICY ALTERNATIVES, ELECTRONIC RECORDING OF CUSTODIAL INTERROGATIONS (2005), http://www.stateaction.org/ issues/issue.cfrn/issue/ElectronicRecording.xml;
89. New York State Bar Association, NYSBA Memorandum #11 (2007), available at http://www.nysba.org/AM/Template.cfm?Section=Home§ion= Legislanve-Memoranda-2007-2008&template=/CM/ContentDisplay. cfm&ContentFileID=2009;
90. State Bar of Michigan, Resolution Adopted by the Representative Assembly Concerning the Recording of Custodial Interrogations (2005), available at http://www.michbar.org/generalinfo/pdfs/9-22Custodial2.pdf;
91. New York County Lawyers' Association, Criminal Justice Section, Report to the House of Delegates, NYCLA's Videotaping Report Recommendation Adopted by the ABA (Feb. 9, 2004), available at https://www.nycla.org/siteFiles/ Publications/Publications64-0.pdf;
92. American Bar Association, Resolution 8A, Videotaping Custodial Interrogations (2004), available at http://www.abanet.org/crimjust/ policy/revisedmy048a.pdf;
93. New York State Defenders Association, Resolution Supporting Mandated Electronic Recording of Custodial Interrogations in Criminal Cases (2003), available at http://www.nysda.org/About-NYSDA/03-Board-Resolution-on- Recorded-Interrogations.pdf;
94. National Association of Criminal Defense Lawyers, Resolution of the Board of Directors Supporting Mandatory Videotaping of Law Enforcement Interrogations (2002), available at http://www.nacdl.org/public.nsf/ resolutions/7cac8b149d7416a385256d97005c81bb?OpenDocument.
95. See Daniel Donovan & John Rhodes, Comes a Time: The Case for Recording Interrogations, 61 MONT. L. REV. 223, 245-46 (2000);
96. Steven A. Drizin & Beth A. Colgan, Let the Cameras Roll: Mandatory Videotaping of Interrogations is the Solution to Illinois'Problem of False Confessions, 32 LOY. U. CHI. L.J. 337 (2001);
97. Steven A. Drizin & Marissa J. Reich, Heeding the Lessons of History: The Need for Mandatory Recording of Police Interrogations to Accurately Assess the Reliability and Voluntariness of Confessions, 52 DRAKE L. REV. 619 (2004);
98. Gail Johnson, False Confessions and Fundamental Fairness: The Need For Electronic Recording of Custodial Interrogations, 6 B.U. PUB. INT. L.J. 719, 735-41 (1997);
99. Richard A. Leo, The Impact of Miranda Revisited, 86 J. CRIM. L. & CRIMINOLOGY 621, 681-82 (1996);
100. Richard A. Leo & Richard J. Ofshe, The Consequences of False Confessions: Deprivations of Liberty and Miscarriages of Justice in the Age of Psychological Interrogation, 88 J. CRIM. L. & CRIMINOLOGY 429 (1998);
101. Erik Lillquist, Improving Accuracy in Criminal Cases, 41 U. RICH. L. REV. 897 (2007);
102. Christopher Slobogin, Toward Taping, 1 OHIO ST. J. CRIM. L. 309 (2003);
103. M. D. Thurlow, Lights, Camera, Action: Video Cameras as Tools of Justice, 23 J. MARSHALL J. COMPUTER & INFO. L. 771 (2005);
104. Wayne T. Westling, Something is Rotten in the Interrogation Room: Let's Try Video Oversight, 34 J. Marshall L. Rev. 537 (2001);
105. Welsh S. White, False Confessions and the Constitution: Safeguards Against Untrustworthy Confessions, 32 HARV. C.R.-C.L. L. REV. 105, 153-55 (1997);
106. Heath S. Berger, Comment, Let's Go to the Videotape: A Proposal to Legislate Videotaping of Confessions, 3 ALB. L.J. SCI. & TECH, 165, 169 (1993);
107. W.F. Bugden, Jr. & T. L. Isaacson, Crimes, Truth and Videotape: Mandatory Recording of Interrogations at the Police Station, UTAH BAR JOURNAL, Sept.-Oct. 2006, at 28.
108. American Bar Association, supra note 48.
109. See generally Crimes Act, 1914, § 23U, 23V (Austl.) (amend. 1991);
110. Police and Criminal Evidence Act, 1984, c. 60, § 60 (Eng.); Criminal Justice Act, 1984 (Electronic Recording of Interviews) Regulations 1997 (S.I. No. 74 of 1997) (Ir.), available at http://193.178.1.79/1997/en/si/0074. html.
111. See generally CAROLE F. WILLIS, THE TAPE-RECORDING OF POLICE INTERVIEWS WITH SUSPECTS: AN INTERIM REPORT, HOME OFFICE RESEARCH STUDIES (1984);
112. FPT HEADS OF PROSECUTIONS COMMITTEE, WORKING GROUP ON THE PREVENTION OF MISCARRIAGES OF JUSTICE, REPORT ON THE PREVENTION OF MISCARRIAGES OF JUSTICE (2004) (Can.), http://www.justice.gc. ca/eng/dept-min/pub/pmj-pej/pmj-pej.pdf;
113. ROGER EDE, THE LAW SOCIETY, STUDY OF THE LAWS OF EVIDENCE IN CRIMINAL PROCEEDINGS THROUGHOUT THE EUROPEAN UNION (2004), http://www.sq3.it/enlsc/docs/materials/LawEvidenceEU.pdf;
114. David T. Johnson, You Don't Need a Weather Man to Know Which Way the Wind Blows: Lessons from the United States and South Korea for Recording Interrogations in Japan, 24 RITSUMEIKAN L. REV. 13, 30 (2007);
115. China promotes recording, videotaping of interrogations, May 16, 2006, http://news.xinhuanet.com/english/2006-05/16/content-4554452.htm; Japan Federation of Bar Associations, President's Comment and the Opinion on the Investigation Process (2003), http://www.nichibenren.or.jp/en/activiries/ meetings/20030718.html.
116. International Criminal Court, Rules of Procedure and Evidence, Pt. A, Ch. 5, Article 112 (2002) (requiring questioning of suspects to be recorded), available at http://www.icc-cpi.int/library/about/officialjournal/Rules- of-Proc-and-Evid-070704-EN.pdf; International Criminal Tribunal for the Former Yugoslavia, Rules of Procedure and Evidence, Pt. 4, § 1, available at http://www.un.org/icty/legaldoc-e/basic/rpe/IT32-rev36.htm#43 (1994) (requiring questioning of suspects to be recorded).
117. See Stephan v. State, 711 P. 2d 1156, 1159 (Alaska 1985).
118. See Letter from Steve Drizin to Author (Jan. 29, 2004) (on file with author).
119. Id.
120. See State v. Scales, 518 N.W. 2d 587, 592 (Minn. 1994).
121. See Shannon Prather, Lights, Camera, Confession, ST. PAUL PIONEER PRESS, July 17, 2006, at Al.
122. Id.
123. See Amy Klobuchar, Eye on Interrogations: How Videotaping Serves the Cause of Justice, WASH. POST, June 10, 2002, at A21.
124. 20 ILL. COMP. STAT. 3929/2(b) (2006).
125. CAPITAL PUNISHMENT REFORM STUDY COMMITTEE, THIRD ANNUAL REPORT 8 (2007), http://www.icjia.state. il.us/public/index.cfm?metasection=dpsrc (describing benefits of recording complete custodial interviews in homicide investigations). Some the benefits identified by the report include: an increase in the quality of interviews, a reduction in the number of motions to suppress, "incontestable evidence as to what was said and done during interviews; and more pleas of guilty." Id.
126. Schaffer, supra note 37 (noting that police departments were "reluctant at first [but] are now pleased that claims of improperly obtained confessions can be proven by turning on a tape").
127. I have omitted reference to several objections that relate to problems uniquely presented by the proposed Arizona pilot program because it was to be restricted to a single state. I have also omitted several objections that relate to issues outside the scope of my research, for example, whether recordings should be required when interviews take place on the street, or in a car coming to a detention facility.
128. FBI Gen. Counsel Memo, supra note 13.
129. Id.
130. Id. at 2: [A]gents testifying to statements made by criminal defendants have increasingly faced intense cross-examination concerning this policy [not to record custodial interviews without approval of the SAC] in apparent efforts to cast doubt upon the voluntariness of statements in the absence of recordings or the accuracy of the testimony regarding the content of the statement.
131. See Boetig et al., supra note 22, at 6.
132. See Natasha Korecki, FBI to tape more interrogations: Defense strategy spurs move after increase in false-statement cases, CHI. SUN-TIMES, July 17, 2006 [hereinafter Korecki, FBI to tape more interrogations]. According to the agent, William Monroe, "I think we are going to see more interviews recorded at the FBI. If a person hears that tape, it's going to be hard to argue with that tape." Id. According to the author, Monroe also acknowledged that "expanding the practice is in line 'with the 21st century' in an era when video cameras are showing up on street corners and local authorities are pushed to record audio and video of interrogations." Id.
133. David B. Caruso, FBI's policy against taping interviews key in acquittal, PITTSBURGH POST-GAZETTE, Feb. 6, 2005, at B1.
134. *1 (D.S.D. Oct. 19, 1999).
135. Id.
136. *2.
137. United States v. Plummer, 118 F. Supp. 2d 945 (N.D. Iowa 2000).
138. Id. at 949 n. 2.
139. Id.
140. Id.
141. United States v. Mansker, 240 F. Supp. 2d 902, 910-11 (N.D. Iowa 2003) ("[T]he court is troubled by the agents' practice of destroying their notes after typewritten summaries have been prepared because it is a subversion of the truth-finding process, which this court refuses to sanction as a tolerable practice."). Further, the court noted that it had previously criticized the DEA's refusal to record the questioning of suspects in United States v. Plummer, 118 F. Supp. 2d 945, 947 (N.D. Iowa 2000). In Plummer, "the court cautioned that, if law enforcement officers refused to adopt a policy of videotaping or otherwise recording interviews, it would likely adopt Judge Kornmann's approach in the District of South Dakota [in Azure]." Mansker, 240 F. Supp. 2d at 11.
142. See United States v. Lewis, 355 F. Supp. 2d 870, 871-72 (E.D. Mich. 2005) (discussing the conflicting testimony of the parties).
143. Id. at 873 (citations omitted).
144. Id. at 872.
145. Giles v. Wolfenbarger, No. 03-74073, 2006 WL 176426 (E.D. Mich. Jan. 24, 2006), rev'd and vacated on other grounds, 239 Fed. App'x. 145, 2007 WL 1875080 (6th Cir. June 26, 2007).
146. *4.
147. Transcript of Motion to Suppress Hearing at 4-5, United States v. Bland, No. 1:02-CR-93 (N.D. Ind. Dec. 13, 2002).
148. United States v. Mason, 497 F. Supp. 2d 328, 335 (D.R.I. 2007).
149. More specifically, the court stated: Courts and commentators have consistently struggled to understand the resistance of some in law enforcement to certain practices that offer the possibility of increasing the reliability of evidence in criminal cases. And, although some states and communities have taken steps to improve these practices, the majority of departments and jurisdictions continue to eschew specific procedures (in reality, reforms) that would help safeguard against the use of unreliable evidence.... Where simple and efficient reforms of the investigative and information-gathering stages offer the possibility of increasing the accuracy of criminal convictions, law enforcement agencies should move swiftly toward their implementation. Failure to take action effectively pits these agencies against the truth-seeking process, imperils an already vulnerable criminal justice system and will be met with corrective action by this Court. Id. at 335-36 (citations omitted).
150. *3-5 (D. Kan. Dec. 7, 2006).
151. Id. Another example of how video recordings aid law enforcement (not involving custodial interviews) is illustrated by the Supreme Court's opinion in Scott v. Harris, 127 S. Ct. 1769 (2007), a civil suit against police officers. A majority of the Court relied upon videotapes taken from a police vehicle of a police-suspect car chase in ruling that summary judgment was correctly entered in favor of the defendants. Id. at 1765-77.
152. NEW JERSEY PATTERN JURY INSTRUCTIONS (CRIMINAL CASES), STATEMENTS OF DEFENDANT: WHEN COURT FINDS POLICE INEXCUSABLY FAILED TO ELECTRONICALLY RECORD STATEMENT (2005), available at http://www.judiciary.state.nj. us/criminal/charges/non2c041.pdf.
153. See 18 U.S.C § 2511(2)(c) (2008) ("It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire, oral, or electronic communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.").
154. Letter from Stephen P. Friot, U.S. Dist. Judge, to Thomas P. Sullivan (Dec. 30, 2004) (on file with author).
155. FBI Gen. Counsel Memo, supra note 13, at 3. The FBI Memo also states: "In theory, surreptitious recording would not affect this approach. However, if recording became routine practice, it would not take long before that practice became well known-especially among members of organized crime." Id. at 3, n. 5 ATF makes the same point. See ATF 2006 Memo, supra note 16 ("If suspects are recorded covertly, once this tactic becomes known through the trial process, any usefulness it [recording] had will be lost."). Although federal law permits agents to make surreptitious recordings of custodial interviews in government facilities, it is likely that a mandated agency practice of recording will become known to many suspects; this subject is dealt with in Part VI.C infra.
156. Commonwealth v. DiGiambattista, 813 N.E. 2d 516, 531 (2004).
157. Id. (citations omitted).
158. T. Mullins & A.D. Farinacci, A Trial Lawyer's Guide to Surreptitious Audio Evidence, LITIGATION, Spring 2005, at 27. A listing of state eavesdropping laws may be found at 50 State Statutory Surveys Utilities/Telecommunications, Telecommunications, State Stat. Surveys Elec. Surv. (West, 2007).
159. See, e.g., D.C. CODE § 5-116.01(c)(1) (Supp. 2008);
160. 725 ILL. COMP. STAT. ANN. 5/103-2.1(e)(vi) (West 2006);
161. ME. REV. STAT. ANN. tit. 25, § 2803-B(1)(K) (2007);
162. N.M. STAT. § 29-1-16(B)(3) (Supp. 2008);
163. WIS. STAT. § 972.115(2)(a)(1) (2007);
164. 2007-434 N.C. Adv. Legis. Serv. 1 (LexisNexis 2008);
165. N.J. SUP. CT. R. 3:17(b)(iv) (2008);
166. see also Stephan v. State, 711 P. 2d 1156, 1159 (Alaska 1985): State v. Scales, 518 N.W. 2d 587, 592 (Minn. 1994);
167. *4-8 (Minn. Ct. App. March 30, 2004);
168. Me. CHIEFS OF POLICE GENERAL ORDER No. 2-23A, § IV(G)(5) (2005).
169. This practice was criticized by the Arizona Supreme Court in State v. Jones: The fact that the initial waiver was not taped subjected the state to unnecessary problems because it gives rise to suspicion. It would be a better practice to videotape the entire interrogation process, including advice of rights, waiver of rights, questioning, and confessions.... Recording the entire interrogation process provides the best evidence available and benefits all parties involved because, on the one hand, it protects against the admission of involuntary or invalid confessions, and on the other, it enables law enforcement agencies to establish that their tactics were proper. 49 P. 3d 273, 279 (Ariz. 2002).
170. ATF 2006 Memo, supra note 16, at 2.
171. 813 N.E. 2d 516, 541-42 (Mass. 2004) (Spina, J., dissenting) ("[V]eteran police investigators argue that tape recording will result in far fewer confessions, because many suspects are unwilling to speak if their conversation is to be recorded. They contend that a tape recording requirement will compromise an investigator's ability to build trust with a suspect....") (citations omitted).
172. See Schaffer, supra note 37 (quoting Hampden County District Attorney William M. Bennett, who was surprised that defendants were not hesitant and reluctant to be recorded).
173. Id. The article also explains that prosecutors have benefitted from the practice of recording confessions: "[S]everal other DAs say the taped confessions have proven so beneficial for the prosecution that they've spent tens of thousands of dollars equipping police departments with recording equipment." Id.
174. FBI Gen. Counsel Memo, supra note 13, at 2. The same reason for FBI agents not recording was cited by an FBI spokesperson: "[L]ike any interrogators, FBI agents use psychological techniques such as 'good cop/bad cop' that might not always come across well on tape [FBI spokesperson William] Cotter said." Korecki, FBI to tape more interrogations, supra note 69.
175. ATF 2005 Memo, supra note 16, at 2.
176. ATF 2006 Memo, supra note 16, at 1.
177. FBI Gen. Counsel Memo, supra note 13, at 2.
178. 18 U.S.C. § 2(a) (2000) (aiding and abetting); 18 U.S. C. § 1503 (2000) (obstruction) "A defendant's [or "witness's"] intentionally evasive testimony, designed to conceal his true knowledge of the facts from the jury, may be sufficient to support a conviction for obstruction of justice.... Furthermore, encouraging a prospective witness to render false testimony has been held to violate §1503." Jeremy McLaughlin and Joshua M. Nahum, Obstruction of Justice, 44 AM. CRIM. L. REV. 793, 805 (2007);
179. see also 18 U.S.C. § 1512 (2000 & Supp. 2005) (tampering); 18 U.S.C. § 1621 (2000) (perjury); 18 U.S.C. §1622 (2000) (subornation).
180. See Timothy Williams, Recorded on a Suspect's Hidden MPS Player, a Bronx Detective Faces 12 Perjury Charges, NY TIMES, Dec. 7, 2007, at B7, available at http://www.nytimes.com/2007/12/07/nyregion/ 07cop.html?ex=1354770000&en=ae2f67e4d893c61d&ei=5124&partner= pennalink&exprod=permalink.The prosecutor has stated that any plea offer would include a felony conviction and jail time. See Denise Buffa, "Lying" Cop Facing Jail, N.Y. POST, Feb. 21, 2008.
181. Thomas P. Sullivan, Notes from New Jersey Supreme Court Special Committee Conference on the Recordation of Custodial Interrogations (Jan. 13, 2005) (on file with the author).
182. Devious tactics are permissible as long as, given the totality of the circumstances, the will of the defendant was not overborne. See Frazier v. Cupp, 394 U.S. 731, 739 (1969) (interrogator's misrepresentation to suspect that his co-suspect had already confessed did not render suspect's subsequent confession involuntary); Johnson v. Harkleroad, 104 Fed. Appx. 858, 865 n. 3 (4th Cir. 2004) ("[I]t is well-settled that police may engage in some misrepresentation without rendering a suspect's resulting confession involuntary or coerced."); Lucero v. Kerby, 133 F. 3d 1299 (10th Cir. 1998) (officer's false statement that defendant's fingerprint had been recovered at the crime scene did not render an otherwise voluntary statement involuntary); United States v. Broussard, 80 F. 3d 1025 (5th Cir. 1996) (officer's statement that prosecutor would be apprised of defendant's cooperation did not constitute a promise of leniency rendering statement involuntary); Ledbetter v. Edwards, 35 F. 3d 1062 (6th Cir. 1994) (holding officer's false statements that police had matched defendant's fingerprints to fingerprints found in victim's van and that two witnesses had identified defendant did not render defendant's confession involuntary); United States v. Omelas-Rodriguez, 12 F. 3d 1339 (5th Cir. 1994) (advising defendant that there are advantages to cooperating does not render confession involuntary), cert, denied, 513 U.S. 830 (1994);
183. Jenner v. Smith, 982 F. 2d 329, 334 (8th Cir. 1993) ("[Q]uestioning tactics such as a raised voice, deception, or a sympathetic attitude on the part of the interrogator will not render a confession involuntary unless the overall impact of the interrogation caused the defendant's will to be overborne."); Holland v. McGinnis, 963 F. 2d 1044, 1051 (7th Cir. 1992) ("Of the numerous varieties of police trickery... a lie that relates to a suspect's connection to the crime is the least likely to render a confession involuntary."); Evans v. Dowd, 932 F. 2d 739, 742 (8th Cir. 1991) (officer's misstatement of the purpose of the interrogation, statements of disbelief, untrue suggestions of eyewitnesses, and statement that Evans would be "returned to his cell" did not amount to "unconstitutional coercion"); Martin v. Wainwright, 770 F. 2d 918 (11th Cir. 1985) (confession voluntary even though police misrepresented evidence).
184. See State v. Scales, 518 N.W. 2d 587 (Minn. 1994).
185. NEW JERSEY SUPREME COURT REPORT, supra note 44, at 29.
186. FED. R. CRIM. P. 30(a);
187. see, e.g., Quercia v. United States, 289 U.S. 466, 469 (1933);
188. United States v. James, 576 F. 2d 223, 228-29 (9th Cir. 1978);
189. Kyle v. United States, 402 F. 2d 443, 444-45 (5th Cir. 1968).
190. "[T]echnical malfunctions of equipment may create doubts in jurors' minds about what happened after the taping ceased." ATF 2005 memo, supra note 16, at 2.
191. "[A]lthough the policy contains an exception for cases '[w]here a taped statement cannot be reasonably obtained', [sic] there are no criteria or guidance provided on what is 'reasonable.'" DEA Memo, supra note 15, at 2. This is a baseless concern. Judges and jurors are routinely called upon to evaluate conduct against a "reasonable person" standard. Indeed, in every criminal case, the test is whether the prosecution has proven its case beyond reasonable doubt, which the courts have held ought not to be further defined. See United States v. Taylor, 997 F. 2d 1551, 1558 (D.C. Cir. 1993) ("[T]he greatest wisdom may lie with the Fourth Circuit's and the Seventh Circuit's instruction to leave to juries the task of deliberating the meaning of reasonable doubt.").
192. "A requirement to record all custodial interviews throughout the agency would ... create unnecessary obstacles to the admissibility of lawfully obtained statements, which through inadvertence or circumstances beyond control of the interviewing agents, could not be recorded." FBI Gen. Counsel Memo, supra note 13, at 3.
193. These citations detail the various exemptions to required recordation of custodial interrogation [hereinafter Support for Exemptions of Recordations of Custodial Interrogations]. Alaska: Stephan v. State, 711 P. 2d 1156, 1162, 1165 (Alaska 1985) (recording requirement excused if failure to record is due to equipment malfunction, suspect's refusal to be recorded, or the unrecorded portion is "innocuous"); Suiter v. State, 785 P. 2d 28, 31 (Alaska Ct. App. 1989) (partially inaudible tape recording admissible if the probative value of the tape outweighs the potential for unfair prejudice and the inaudible portions do not render the recording unreliable). District of Columbia: General Order from the D.C. Metropolitan Police Department (Feb. 2, 2006) § IV (K, L, M), V(B(1)) (detailing provisions concerning malfunctioning of equipment which interferes with or prevents recordings of custodial interviews). Illinois: 725 ILL. COMP. STAT. 5/103-2.1(b), (e)(ii), (f) (2006) (mandating that presumption that unrecorded custodial statements are inadmissible is inapplicable if "electronic recording was not feasible"; presumption also "may be overcome by a preponderance of the evidence that the statement was voluntarily given and is reliable, based on the totality of the circumstances"). Maine: General Order from the of Board of Trustees of the Maine Criminal Justice Academy, (Feb. 11, 2005) § IV(D)(G(1)) (pursuant to the Maine statute, creating exemptions to the recording requirement "when the recording is not feasible, including, but not limited to, when recording equipment malfunctions"). Massachusetts: Mass. Municipal Police Institute Model Policy, § G (adopting, in response to me DiGiambattista ruling, detailed provisions relating to malfunctioning of equipment that precludes recordings of custodial interviews). Minnesota: State v. Miller, 573 N.W. 2d 661, 674-75 (Minn. 1998) (court ordered exceptions to the recording requirements in the event of equipment malfunction and inadvertent failure to operate the equipment properly); State v. Schroeder, 560 N.W. 2d 739, 740-41 (Minn. Ct. App. 1997). New Jersey: Supreme Court Rule 3:17(b)(i) provides recordings need not be made if "electronic recording of the interrogation is not feasible." N.J. SUP. CT. R. 3:17(b)(i) (2008). New Mexico: N.M. STAT. § 29-1-16 B(1),(2) (Supp. 2008) (providing good cause for not recording includes that "electronic recording equipment was not reasonably available," and that "the recording equipment failed and obtaining replacement equipment was not feasible"). North Carolina: 2007-434 N.C Adv. Leg. Serv. 219 § 15A-211(e)(2) (Lexis Nexis 2007) (providing exceptions when there was good cause for the failure to record, including unforeseeable equipment failure, and obtaining replacement equipment was not feasible). Wisconsin: WIS. STAT. § 972.115 (2)(a)(3), (5) (2006) (allowing good cause for not recording includes that "[t]he law enforcement officer or agent of a law enforcement agency conducting the interrogation in good faith failed to make an audio or audio and visual recording of the interrogation because the recording equipment did not function, the officer or agent inadvertently failed to operate the equipment properly, or, without the officer's or agent's knowledge, the equipment malfunctioned or stopped operating" and that "[e]xigent public safety circumstances existed that prevented the making of an audio or audio and visual recording or rendered the making of such a recording infeasible").
194. According to the ATF "failure to record an interrogation or confession may result in additional 'legal technicalities' that could lead to jury instructions harmful to the case at trial or even summary dismissal of criminal charges." ATF 2005 memo, supra note 16, at 2. Similarly, the DEA argued that "it is likely that defendants will raise alleged violations of the USAO policy in seeking to suppress statements in pre-trial hearings, or in seeking acquittal at trial. At a minimum, this risks introducing the policy requirements into criminal trials." DEA Memo, supra note 15, at 2.
195. See sources cited supra note 116.
196. The model recording act I proposed, attached as an Appendix to the articles Electronic Recording of Custodial Interrogations: Everybody Wins, supra note 23, at 1141-44 and The Time Has Come for Law Enforcement Recordings of Custodial Interviews, supra note 23, at 188-90 may be embodied in either a statute or agency regulations. Recordings are not mandatory under all circumstances. In addition to excusing recordings in the event of equipment failures and inadvertent errors by the interviewing officers, exceptions are designed to accommodate unusual situations encountered by police, and to afford broad discretion as to whether they should record. For example, the requirement is excused if suspects decline to respond if the interviews are recorded; if the police reasonably believe making recordings will jeopardize the safety of others or the identities of confidential informants; or if exigent circumstances exist which prevent the making of recordings, or render it not feasible to make recordings. The provisions in my original model statute for presumed inadmissibility have been shown to be unnecessary. Police are recording custodial interviews on a regular basis even though the consequence of unexcused recording carries no sanction (Maine, New Mexico, Iowa, and Maryland), or cautionary jury instructions (Massachusetts and New Jersey). Accordingly, I have rewritten my model statute to delete the presumption of inadmissibility, and substitute cautionary jury instructions, based in part on those contained in Supreme Court of New Jersey Rule 3:17. See infra app. B § 4.
197. The FBI: "[T]here are 56 field offices and over 400 resident agencies in the FBI. A requirement to record all custodial interviews throughout the agency would ... involve massive logistic and transaction support...." FBI Gen. Counsel Memo, supra note 13, at 3. The ATF: "This also raises the logistical questions of... what are the costs involved; ... tape retention and storage issues, and what uniform training is to be provided and by whom." ATF 2005 Memo, supra note 16, at 2;
198. see also ATF 2006 Memo, supra note 16, at 1 (expressing concern over a budget for recording interrogations).
199. The FBI, DEA, and ATF numbers are based on their estimated 2007 budgets. Current budgets are available for download from the website of the Office of Management and Budget (OMB). See Office of Management and Budget, http://www.whitehouse.gov/omb/budget/fy2008/budget.html (last visited Nov. 10, 2008).
200. For many years, the CIA's budget has not been made publicly available. In October 1997 and 1998, the CIA released "the aggregate amount appropriated for intelligence and intelligence-related activities," which was $26.6 billion for Fiscal Year 1997 and $26.7 billion for Fiscal Year 1998. See Press Release, CIA, Disclosure of the Aggregate Intelligence Budget for FY98 (Mar. 20, 1998), available at https://www.cia.gov/news-information/press-releases-statements/ press-release-archive-1998/ps032098.html.
201. ATF Memo, supra note 16, at 2 n. 4. The ATF Memo cites Commonwealth v. DiGiambattista, 813 N.E. 2d 516 (Mass. 2004), where the court held that when police fail to record an interrogation, defendants are entitled to an instruction that the jury should weigh unrecorded statements with "great caution and care." DiGiambattista, 813 N.E. 2d at 534.
202. 18 U.S.C. § 3109 (2007).
203. *14 (6th Cir. Aug. 10, 2007);
204. United States v. Tykarsky, 446 F. 3d 458, 477 (3d Cir. 2006);
205. United States v. Williams, 429 F. 3d 767, 772 (8th Cir. 2005);
206. United States v. Smith-Baltiher, 424 F. 3d 913, 925-26 (9th Cir. 2005);
207. United States v. Montgomery, 390 F. 3d 1013, 1017 (7th Cir. 2004), cert. denied, 544 U.S. 968 (2005);
208. Reinert v. Larkins, 379 F. 3d 76, 94 n. 4 (3d Cir. 2004), cert. denied, 546 U.S. 890 (2005);
209. *8 (10th Cir. Apr. 26, 2000);
210. United States v. Yunis, 859 F. 2d 953, 961 (D.C. Cir. 1988);
211. Mastin v. Senkowski, 297 F. Supp. 2d 558, 606 (W.D.N.Y. 2003).
212. 956 F. 2d 843 (8th Cir. 1992)
213. See NEB. REV. STAT. § 29-411 (2007) (permitting an officer to enter a dwelling or other building "without giving notice of his authority and purpose, if the judge or magistrate issuing a search warrant has inserted a direction therein that the officer executing it shall not be required to give such notice").
214. 956 F. 2d at 847 (footnote omitted).
215. Id. at 847, n. 4 (citing United States v. Mitchell, 783 F. 2d 971, 973-74 (10th Cir.), cert. denied, 479 U.S. 860 (1986);
216. United States v. Andrus, 775 F. 2d 825, 844 (7th Cir. 1985);
217. Simons v. Montgomery County Police Officers, 762 F. 2d 30, 32 n. 1 (4th Cir. 1985), cert. denied, 474 U.S. 1054 (1986);
218. United States v. Jefferson, 714 F. 2d 689, 693 (7th Cir. 1983);
219. United States v. Valenzuela, 596 F. 2d 824, 829-30 (9th Cir. 1979), cert. denied sub nom., Lizarraga v. United States, 441 U.S. 965 (1979);
220. United States v. Daoust, 728 F. Supp. 41, 47 (D. Me. 1989), aff'd, 916 F. 2d 757 (1st Cir. 1990)).
221. See United States v. Gatewood, 60 F. 3d 248, 249 (6th Cir. 1995) ("The statute in question regulates only federal officers, however, and has no application when state officers, acting totally without federal involvement, seize evidence that is later offered in a federal prosecution") (citations omitted); United States v. Stiver, 9 F. 3d 298, 301-02 (3d Cir. 1993);
222. United States v. Sagaribay, 982 F. 2d 906, 910-11 (5th Cir. 1993).
223. The FBI General Counsel Memo raises the obverse problem: "[I]n some task force cases that result in state prosecution, FBI state or local partners have been precluded from using FBI agent testimony of the defendant's confession because of restrictive state law or policy." FBI Gen. Counsel Memo, supra note 13. Citations are not given. The cases may have involved federal agents who, while actively collaborating with state officers, took unrecorded custodial statements in violation of state recording law or policy.
224. The District of Columbia statute limits its requirements to members of the Metropolitan Police Department. D.C. Code § 5-116.01(a)(1) (2008).
225. The Maine statute is binding on "a municipal, county or state law enforcement agency." ME. REV. STAT. ANN. tit. 25, § 2803-B(6) (2007).
226. The New Mexico statute requires compliance by "a state or local law enforcement officer." N.M. STAT ANN. § 29-l-16A (2008).
227. The North Carolina statute does not preclude admission of a statement obtained by a federal law enforcement officer. N.C. GEN. STAT. ANN. § 15A-211(g)(5) (2007).
228. The Wisconsin statute applies to officers employed by the state or a subdivision of the state. Wis. STAT. §§ 968.073(1)(b)(c); 165.83(1)(b); 165.85(2)(c) (2007).
229. State court rulings concerning jury instructions-for example, Commonwealth v. DiGiambattista, 813 N.E. 2d 516, (Mass. 2004), cited by the DEA, and the New Jersey Supreme Court Rule-apply only to cases heard in those states' courts. Under the Supremacy Clause of the federal Constitution, state courts and legislatures have no authority to dictate jury instructions to be given in federal trials. See Nat'l City Bank v. Nat'l Sec. Co., 58 F. 2d 7, 9 (6th Cir. 1932).
230. Thus, federal trial judges are not bound by state statutes or court rulings that require state court trial judges to warn jurors about the diminished reliability of unrecorded custodial statements attributed to the defendant.
231. DEA Memo, supra note 15.
232. 28 U.S.C. §§ 1346(b), 2671-2680 (2000).
233. The DEA explained further that "at a minimum ... in all civil cases, alleged violations of the [pilot program] policy would be admissible against the United States and federal employees in civil cases." DEA Memo, supra note 15.
234. 28 U.S.C. § 1346(b). The Supreme Court has applied this provision precisely as it is written. See FDIC v. Meyer, 510 U.S. 471, 477 (1994).
235. 28 U.S.C. § 2680(a) (2006).
236. Id.
237. See supra note 116.
238. See infra Appendix B, Section 3 for the list of exceptions contained in the model federal statute.
239. O'Ferrell v. United States, 253 F. 3d 1257, 1267 (11th Cir. 2001).
240. 295 U.S. 78, 88 (1935).
241. See the response to Mr. Charlton's proposal by members of the DOJ Criminal Chief's Working Group, supra note 17.
242. See Lars Nelson, Preserving the Public Trust: Prosecutors' Professional Responsibility To Advocate for the Electronic Recording of Custodial Interrogations, 44 WILLAMETTE L. REV. 1 (2007) (arguing that prosecutors must advocate for electronic recording because of their unique position of trust).
243. Stephan v. State, 711 P. 2d 1156, 1161 (Alaska 1985).
244. Hendricks v. Swenson, 456 F. 2d 503, 507 (8th Cir. 1972).
245. The President's constitutional authority to issue executive orders includes providing supervision to secure unitary and uniform execution of the law. Bldg. and Constr. Trades Dep't, AFL-CIO v. Allbaugh, 295 F. 3d 28, 32 (D.C. Cir. 2002) (citing Sierra Club v. Cosde, 657 F. 2d 298, 406 n. 524 (D.C. Cir. 1981)).
246. If fewer than all felonies are to be covered, this provision should be revised by inserting statutory citations to the felonies to be covered.
247. If it is intended to expand the reach of this bill to include interviews of persons who are in custody outside a Place of Detention, delete Section 1(b), and delete the words "in a Place of Detention" for Sections 1(a) and 2.