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

• Author: Sullivan, Thomas P.

1. INTRODUCTION

   In an Article published in this Journal in 2005, we advocated the enactment of state statutes requiring that interviews of suspects held in custody at police facilities be electronically recorded, and we attached a proposed model statute. (1) After several years of additional research and discussions with numerous law enforcement and legislative personnel, we have revised our proposed statute in one important substantive respect. We have deleted the provision that evidence of an unrecorded interview is presumed inadmissible into evidence when no statutory exception to the recording requirement applies. Instead, we now recommend that the trial judge permit the prosecution to introduce evidence of all unrecorded interviews; if the failure to record is not justified under the law, and if the case is heard by a jury, the judge must give instructions explaining the greater reliability of electronic recordings of custodial interviews as compared to witnesses' testimony about what occurred.

   The new model statute is contained in Appendix A. (2) In this Article, we explain the reasons for the change.

2. THE PROVISIONS OF OUR PRIOR MODEL STATUTE

   As relevant here, our 2005 model statute contains the following provisions.

   Section 2 provides that all statements made by persons suspected of designated felonies during custodial interviews must be electronically recorded. (3) Section 3 provides that unless recording is excused under the provisions of [section][section] 4 or 5, unrecorded statements "shall be presumed inadmissible as evidence against the person in any juvenile or criminal proceeding brought against the person." (4) Sections 4 and 5 describe a variety of circumstances under which the recording of custodial interviews is not required. In these cases, the presumption of inadmissibility is overcome, and unrecorded statements may be admitted into evidence. (5)

   The presumption of inadmissibility in [section] 3 was based upon a similar provision contained in the Illinois recording statute, (6) enacted in 2003, which requires, with certain exceptions, that custodial interviews of suspects in first-degree murder investigations be electronically recorded. This was the first mandatory recording law to be enacted by a state legislature. (7)

3. A SUMMARY OF STATUTES AND COURT RULINGS REQUIRING RECORDED CUSTODIAL INTERVIEWS AND THE CONSEQUENCES OF FAILURE TO RECORD AS REQUIRED

   The earliest requirements that custodial interviews be recorded by state law enforcement officials came in a 1985 ruling by the Supreme Court of Alaska, followed almost a decade later by a 1994 decision by the Supreme Court of Minnesota. (8) After the Illinois statute was enacted in 2003, the District of Columbia and six other states--Maine, Maryland, Nebraska, New Mexico, North Carolina, and Wisconsin--have adopted mandatory recording laws applicable to custodial interviews in a variety of felony investigations. (9) In addition, the New Jersey Supreme Court has by rule provided that recordings be made of custodial interviews in named felony investigations, (10) and an opinion of the highest court of Massachusetts (11) has resulted in statewide adoption of the practice of recording custodial interviews. (12)

   These statutes and court rulings contain a variety of provisions dealing with when custodial interviews must be recorded, what circumstances excuse the need for recordings, and the consequences of unexcused failures to record. They may be roughly categorized as follows.

   1. INADMISSIBILITY INTO EVIDENCE

      The supreme courts of both Alaska and Minnesota have ruled that testimonial evidence of what occurred during a custodial interview will be excluded from evidence if the prosecution is unable to establish a valid excuse for not making an electronic recording. (13) Later decisions of both courts have adopted exceptions that justify non-recording, (14) but neither court has altered its position on inadmissibility.

   2. PRESUMED OR POTENTIAL INADMISSIBILITY

      The District of Columbia Code provides that a statement of an accused taken without the required electronic recording is subject to a rebuttable presumption that the statement was involuntary; the presumption may be overcome if the prosecution proves by clear and convincing evidence that it was voluntary. (15)

      In Illinois, custodial statements that are not recorded as required are presumed inadmissible, but the presumption of inadmissibility may be overcome if the prosecution establishes by a preponderance of the evidence that the statement was voluntarily given and is reliable, based upon the totality of the circumstances. (16)

   3. POTENTIAL INADMISSIBILITY COUPLED WITH ALTERNATIVE CAUTIONARY INSTRUCTIONS

      The New Jersey Supreme Court Rule provides that an unexcused failure to record a custodial interview is a factor for the trial court to consider in determining the admissibility of testimony describing the interview. If testimony of a defendant's unrecorded statement is admitted, the trial judge is required to give the jury strongly-worded cautionary instructions. (17)

      The North Carolina statute requires, with certain exceptions, that custodial interviews in homicide investigations shall be electronically recorded in their entirety, unless the State establishes by clear and convincing evidence that there was good cause for failing to record. (18) An unexcused failure to record shall be considered by the court in deciding a motion to suppress and by the court or jury in support of a claim that the defendant's statement was involuntary or is unreliable. If testimony about the unrecorded interview is admitted before a jury, the judge shall instruct the jurors that they may consider evidence of non-compliance with the recording requirement in determining whether the statement was voluntary and reliable.

   4. CAUTIONARY JURY INSTRUCTIONS

      The Wisconsin statute provides that, in a jury case, when an exception to the recording requirement is not applicable, the jurors are to be instructed that it is state policy to make recordings of custodial interviews, and that they may consider the absence of a recording in evaluating the reliability of testimony as to what occurred during the unrecorded interviews. Similarly, in non-jury hearings, the judge may Consider the absence of a recording in evaluating the evidence relating to the unrecorded interview. (19)

      The Nebraska statute provides that "if a law enforcement officer fails to comply with [the recording law], a court shall instruct the jury that they may draw an adverse inference for the law enforcement officer's failure to comply with" the law. (20)

      In Commonwealth v. DiGiambattista, the Supreme Judicial Court of Massachusetts ruled that when prosecution testimony regarding a non-recorded custodial interview is admitted into evidence, the jury is to be instructed that "the State's highest court has expressed a preference that interrogations be recorded whenever practicable." (21) The court also held that if the defendant claims the statement was made involuntarily, "the jury should also be advised that the absence of a recording permits (but does not compel) them to conclude that the Commonwealth has failed to prove voluntariness beyond a reasonable doubt." (22)

   5. NO ADVERSE CONSEQUENCES

      The Maine, Maryland, and New Mexico statutes provide no adverse consequence for a failure to follow their statutory recording mandates. (23)

4. OUR REASONS FOR REVISING OUR MODEL STATUTE BY REMOVING THE PRESUMPTION OF INADMISSIBILITY, AND PROVIDING INSTEAD FOR CAUTIONARY JURY INSTRUCTIONS

   Since drafting our original model statute, we have observed the results of these statutes and court rulings on the practices of law enforcement officials in each of the states discussed above, and we have talked with law enforcement officers, prosecutors, and defense lawyers in all fifty states. (24) We have also appeared before several state legislative committees, law enforcement bodies, and legal organizations to discuss why we favor electronic recordings of custodial interviews and state legislation requiring recordings. (25)

   Based upon the information we have gathered through these contacts, we have concluded that it is neither wise nor necessary to provide that testimony is inadmissible, or presumed or potentially inadmissible, when a custodial interview should have been, but was not, electronically recorded. The better approach is to allow testimony by both prosecution and defense as to what occurred during the unrecorded interviews, but require that trial judges give jury instructions about the legal requirement of electronically recording custodial interviews, and the superior reliability of recordings as compared to testimony about what was said and done.

   Our reasons are these.

   First, we have concluded that provisions that threaten admissibility of testimony about unrecorded interviews are not necessary in order to achieve compliance with recording laws. So far as we are able to determine, the differences in the consequences for failing to make electronic recordings have not had an impact upon law enforcement agency practices in the states mentioned in Part III.

   This is consistent with the enthusiastic support for recording custodial interviews we have heard in our conversations with detectives and their supervisors from small, medium, and large police and sheriff departments in every state. The hundreds of law enforcement officers we have spoken with say that, having given recordings a try, they become enthusiastic supporters of the practice. They...