The Consequences of law enforcement officials' failure to record custodial interviews as required by law

Journal of Criminal Law and Criminology

Volumn 99, Issue 1, 2009, Pages 215-234

  Sulliva, Thomas P ^a   Vail, Andrew W ^a  

^a Jenner and Block LLP   (United States)

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EID: 77950921577     PISSN: 00914169     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (53)

1. Thomas P. Sullivan, Electronic Recording of Custodial Interrogations: Everybody Wins, 95 J. CRIM. L. & CRIMINOLOGY 1127, 1141-44 (2005).
2. We have also made several editorial changes to the model statute, which are designed to bring more clarity to its provisions, but which do not alter its substance.
3. Thomas P. Sullivan, Electronic Recording of Custodial Interrogations: Everybody Wins, 95 J. CRIM. L. & CRIMINOLOGY, 1142.
4. Thomas P. Sullivan, Electronic Recording of Custodial Interrogations: Everybody Wins, 95 J. CRIM. L. & CRIMINOLOGY. 1142-44.
5. 705 ILL. COMP. STAT. ANN. 405/5-401.5 (West 2007) (relating to investigations of first degree murder suspects); 725 ILL. COMP. STAT. ANN. 5/103-2.1 (West 2007) (same). The statute took statewide effect in July 2005.
6. Thomas P. Sullivan, Andrew W. Vail & Howard W. Anderson III, The Case for Recording Police Interrogations, 34 LITIGATION, Spring 2008, at 30, 35.
7. D.C. CODE ANN. §§ 5-116.01-03 (LexisNexis Supp. 2008); ME. REV. STAT. ANN. tit. 25, § 2803-B (2007); MD CODE ANN. CRIM. PROC. § 2-402 (LexisNexis 2008); NEB. REV. STAT. § 29-4501-4508 (effective July 18, 2008); N.M. STAT. § 29-1-16 (Supp. 2008); N.C. GEN. STAT. § 15A-211 (2007); WIS. STAT. ANN. § 972.115 (West 2007). As to the Texas statute, TEX. CODE CRIM. PROC. ANN. art. 38.22 (Vernon 2005), see infra App. B, n.48. N.J. R. CT. R. 3:17.
8. Commonwealth v. DiGiambattista, 813 N.E.2d 516, 533-34 (Mass. 2004).
9. A ruling of the New Hampshire Supreme Court in State v. Barnett, 789 A.2d 629 (N.H. 2001), is discussed in Appendix B. See infra App. B, n.44. The decision of the Supreme Court of Iowa in State v. Hajtic, 724 N.W.2d 449 (Iowa 2007), is discussed infra in Part IV.
10. See Stephan, 711 P.2d at 1162; Scales, 518 N.W.2d at 592. The ruling in Scales is limited to "substantial" violations. Scales, 518 N.W.2d at 592.
11. See Thomas P. Sullivan, Electronic Recording of Custodial Interrogations: Everybody Wins, 95 J. CRIM. L. & CRIMINOLOGY, at 1137 n.38 (collecting cases).
12. D.C. CODE ANN. § 5-116.03 (LexisNexis Supp. 2008).
13. 705 ILL. COMP. STAT. ANN. 405/5-401.5(d)(f) (West 2007) (relating to minors); 725 ILL. COMP. STAT. ANN. 5/103-2.1(d)(f) (West 2007) (relating to adults).
14. N.J. R. CT. 3:17(d), (e). The instructions state in part: Where there is a failure to electronically record an interrogation, you have not been provided with a complete picture of all of the facts surrounding the defendant's alleged statement and the precise details of that statement. By way of example, you cannot hear the tone or inflection of the defendant's or interrogator's voices, or hear first hand the interrogation, both questions and answers, in its entirety. Instead you have been presented with a summary based upon the recollections of law enforcement personnel.... The absence of an electronic recording permits but does not compel you to conclude that the State has failed to prove that a statement was in fact given and if so, was accurately reported by State's witnesses. N.J. Judiciary, Criminal Practice Div., Criminal Model Jury Charges, http://www.judiciary.state.nj.us/criminal/juryindx.htm (follow "Statements of Defendant-Police Failed to Electronically Record" hyperlink) (last visited Feb. 3, 2009). These instructions have formed the basis for the instructions we propose in our revised model bill.
15. N.C. GEN. STAT. § 15A-211 (2007).
16. WIS. STAT. ANN. § 972.115(d)(2) (West 2007).
17. NEB. REV. STAT. § 29-4505 (effective July 18, 2008).
18. Commonwealth v. DiGiambattista, 813 N.E.2d 516, 533-34 (Mass. 2004).
19. Commonwealth v. DiGiambattista, 813 N.E.2d 516, 533-34 (Mass. 2004).
20. Following this ruling, the state 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." MASS. DIST. ATTORNEYS ASS'N, REPORT OF THE JUSTICE INITIATIVE 14 (2006). The Massachusetts Chiefs of Police Association, District Attorneys Association, and State Police distributed a sample "Policy and Procedure" to law enforcement agencies throughout the state. The sample reads: "It is the policy of the department to electronically record all custodial interrogations of suspects or interrogations of suspects conducted in places of detention whenever practical." MUN. POLICE INST., POLICY & PROCEDURE NO. 2.17, ELECTRONIC RECORDINGS OF INTERROGATIONS 1, http://www.municipalpoliceinstitute.org/page.php?pageid=68 (follow "2.17 Electronic Recordings of Interrogations.doc" hyperlink) (last visited Feb. 3, 2009).
21. 25 ME. REV. STAT. ANN. tit. 25, § 2803-B(1)(K) (2007); MD CODE ANN. CRIM. PROC. § 2-402 (LexisNexis 2008); N.M. STAT. § 29-1-16 (Supp. 2008).
22. We have spoken with more than 600 law enforcement officers-most of them detectives and their supervisors-from police and sheriff departments that make it a practice to record custodial interviews in varying felony investigations. Their enthusiasm and support for the practice is virtually unanimous. Our current list of these departments is attached, infra, as Appendix B
23. Legislative: State Legislative Leaders Found., Univ. of Chi. (June 2004); D.C. City Council Judiciary Comm. (Nov. 2004); Mo. General Assembly Comm. (Nov. 2005); Md. House of Delegates Comms. (Mar. 2006, Jan. 2007); Cal. Comm. on Fair Admin. of Justice (June 2006); Nat'l State Legislators' Conf. (Dec. 2006); New Eng. Legislative Comm. (Feb. 2007); Tenn. Legislative Comm. (Dec. 2007); N.Y. Assembly Comms. (Oct. 2005, Apr. 2008); Tenn. Gen. Assembly Study Comm. (Dec. 2007); Pa. Joint State Gov't Comm'n (Mar. and Aug. 2008); Mont. House Judiciary Comm. (Feb. 2009).
24. Law Enforcement: Short Course for Prosecuting Att'ys (July 2004); Nat'l Ass'n of Criminal Defense Lawyers, Conf. (July 2004); Hennepin County Att'y, Minn. Conf. (Feb. 2005); Int'l. Ass'n. of Chiefs of Police, Annual Meeting (Oct. 2006); Mich. Ass'n. of Chiefs of Police Mid-Winter Meeting (Jan. 2007).
25. Other: N.C. Leadership Summit (Mar. 2003); Am. Judicature Soc'y (Jan. 2003, Dec. 2004, Aug. 2006); Am. Acad. of Psychiatry and Law, Midwest Conf. (Apr. 2003); Midwest Sociological Soc'y, Annual Meeting (Apr. 2003); Nat'l Lawyers Ass'n., Annual Convention (July 2003); American Bar Ass'n, Midyear Meeting (Feb. 2004); Center for Policy Alternatives (Dec. 2004); State Bar of Tex. (Feb. 2005, Feb. 2006); Nat'l Ass'n of Criminal Defense Lawyers, Annual State Legislative Conf. (Aug. 2005); Nat'l Instit. of Justice (Sept. 2005); Innocence Project Confs. (Mar., 2006, Mar. and June 2007); Cal. Innocence Project, UCLA (Apr. 2006); Pa. Bar Institute, Annual Symposium (June 2006); John Jay School of Criminal Justice (Mar. 2007); Center for Am. and Int'l Law (Aug. 2008); Uniform Law Comm'rs, Drafting Comm. Meeting (Oct. 2008); Ill. Institute for Continuing Legal Educ. Conf., Defending Ill. Death Penalty Cases in 2008 (Nov. 2008).
26. At the 2007 mid-winter conference of the Michigan Association of Chiefs of Police, we heard their lawyer endorse recordings of custodial interviews as a way of reducing the threats of civil damage claims that impact the cost of the municipal risk pool. See Gene King, Why Michigan Police Agencies Should Embrace a Policy to Record Certain Custodial Interrogations, LAW ENFORCEMENT ACTION F. (Mich. Mun. League, Ann Arbor, Mich.), Oct. 2006, available at http://www.mmlpool.org/shared/public/publications/leaf_newsletter/recording_interrogations.pdf?PHPSESSID=efac3ddef2879a36efff464d9937eaf8.
27. See State v. Hajtic, 724 N.W.2d 449 (Iowa 2006).
28. Id. at 456. The court also stated: We are aided in our de novo review of this case by a complete videotape and audiotape of the Miranda proceedings and the interrogation that followed. This case illustrates the value of electronic recording, particularly videotaping, of custodial interrogations. Id. at 454.
29. Tom Miller, Cautions Regarding Custodial Issues, 39 IOWA POLICE J. 15, (2007).
30. This calls to mind Justice Benjamin Cardozo's oft-quoted lament, "The criminal is to go free because the constable has blundered." People v. DeFore, 150 N.E. 585, 587 (N.Y. 1926).
31. If fewer than all felonies are to be covered, this provision should be revised by inserting statutory citations to the felonies to be covered.
32. 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 § 1(b), and delete the words "in a Place of Detention" from §§ 1(a) and 2. 5/103-2.1 (West 2007); 720 ILL. COMP. STAT. ANN. 5/14-3(k) (West Supp. 2008).
33. Stephan v. State, 711 P.2d 1156, 1162 (Alaska 1985).
34. In Clark v. State, the Arkansas Supreme Court rejected the defendant's argument that she had a constitutional right to have the police make a complete recording of her custodial interview. However, the court stated, "[W]e believe that the criminal-justice system will be better served if our supervisory authority is brought to bear on this issue. We therefore refer the practicability of adopting such a rule to the Committee on Criminal Practice for study and consideration." No. 07-1276, 2008 WL 4378096 (Ark. Sept. 25, 2008) (citing State v. Cook, 847 A.2d 530 (N.J. 2004))
35. In 2008, a Connecticut statute was enacted establishing a Commission on Wrongful Convictions, which is to report its findings and recommendations by July 1, 2009 to the General Assembly, including an evaluation of the implementation of "the pilot program to electronically record the interrogations of arrested persons." 2008 Conn. Legis. Serv. P.A. 08-143 (H.B. 5933) (WEST)
36. D.C. CODE ANN. §§ 5-116.01-03 (LexisNexis Supp. 2008).
37. 705 ILL. COMP. STAT. ANN. 405/5-401.5 (West 2007); 725 ILL. COMP. STAT. ANN. 5/103-2.1 (West 2007); 720 ILL. COMP. STAT. ANN. 5/14-3(k) (West Supp. 2008).
38. Following the ruling of the Iowa Supreme Court in State v. Hajtic, 724 N.W.2d 449 (Iowa 2006), the Attorney General wrote in the State Police Association's publication: "Although the court stated that it is 'encouraging' the practice of electronic recording, the attorney general's office believes that the Hajtic decision should be interpreted as essentially requiring this practice."
39. Tom Miller, Cautions Regarding Custodial Issues, 39 IOWA POLICE J. 15, 15 (2007), at 15.
40. ME REV. STAT. ANN. title 25, § 2803-B(1)(K) (2007).
41. The Maryland Code of Criminal Procedure directs that law enforcement units shall make "reasonable efforts" to create a recording of custodial interviews of suspects in connection with cases involving named felonies "whenever possible." MD CODE ANN. CRIM. PROC. § 2-401-04 (LexisNexis 2008).
42. Commonwealth v. DiGiambattista, 813 N.E.2d 516, 533-34 (Mass. 2004). Following this ruling, the state 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." MASS. DIST. ATTORNEYS ASS'N, supra note 22, at 14.
43. The Chiefs of Police Association, District Attorneys Association, and State Police distributed a sample "Policy and Procedure" to law enforcement agencies throughout the state, which states: "It is the policy of the department to electronically record all custodial interrogations of suspects or interrogations of suspects conducted in places of detention whenever practical." MUN. POLICE INST., supra note 22, at 1.
44. State v. Scales, 518 N.W.2d 587, 591-92 (Minn. 1994).
45. NEB. REV. STAT. § 29-4501-4508 (effective July 18, 2008).
46. In State v. Barnett, 789 A.2d 629, 632-33 (N.H. 2001), the New Hampshire Supreme Court held that if an electronically recorded statement is offered into evidence, the recording is admissible only if the entire post-Miranda interrogation interview was recorded. The ruling does not require that custodial interviews be recorded either in whole or in part. Id. At 632. Further, if a partially recorded statement is excluded from evidence because the entire interview was not recorded, testimonial evidence is nevertheless admissible as to what occurred before, during, and after the custodial interview, including the portion that was recorded. Id. at 632-33.
47. Court held that if an electronically recorded statement is offered into evidence, the recording is admissible only if the entire post-Miranda interrogation interview was recorded. The ruling does not require that custodial interviews be recorded either in whole or in part. Id. at 632. Further, if a partially recorded statement is excluded from evidence because the entire interview was not recorded, testimonial evidence is nevertheless admissible as to what occurred before, during, and after the custodial interview, including the portion that was recorded. Id. at 632-33.
48. N.J. R. CT. 3:17.
49. N.M. STAT. § 29-1-16 (Supp. 2008).
50. N.C. GEN. STAT. § 15A-211 (2007).
51. The Texas Code of Criminal Procedure provides that a defendant's oral statement is inadmissible if it is not recorded, unless the statement "contains assertions of facts or circumstances that are found to be true and which conduce to establish the guilt of the accused...." TEX. CODE CRIM. PROC. ANN. art. 38.22 (Vernon 2005); see Moore v. State, 999 S.W.2d 385, 400 (Tex. Crim. App. 1999). The statute requires neither recording of custodial interviews preceding recorded statements nor exclusion of suspects' unrecorded written statements. See Rae v. State, No. 01-98-00283-CR, 2001 WL 125977, at *3 (Tex. App. Feb. 15, 2001); Franks v. State, 712 S.W.2d 858, 860 (Tex. App. 1986).
52. The Utah Attorney General has adopted a Best Practices Statement, endorsed by all state law enforcement agencies, recommending that custodial interrogations in a fixed place of detention of persons suspected of committing a statutory violent felony should be electronically recorded from the Miranda warnings to the end in their entirety. Various exceptions to the requirement are included.
53. OFFICE OF THE ATTORNEY GEN., STATE OF UTAH, BEST PRACTICES STATEMENT FOR LAW ENFORCEMENT (2008), available at http://attorneygeneral.utah.gov/cmsdocuments/Electronic_Recording.pdf.