Mandatory recording of police custodial interrogations: the past and the current trend.

• Author: Arledge, Rhea S.

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...