Other Grounds for Suppressing Confessions

AuthorDeja Vishny
Other Grounds
For Suppressing Confessions
Most confession suppression litigation is centered on litigating violations of Miranda and voluntariness. There
are, though, some additional grounds to suppress confessions that should be considered when supported by the facts
or if you believe you are in the right court to advance new theories and (hopefully) create positive changes in the law.
These are discussed below.
In appropriate cases, consider moving to exclude your client’s confession because law enforcement failed to record
the interrogation in its entirety. You will have the best chances of success when the following three factors come together:
The prosecution evidence is weak enough to raise serious doubts about the truthfulness of the confession;
Your client is sympathetic; and
The trial judge is open-minded enough to doubt the police version of what occurred.
A. Governing Law
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Recording complete interrogations is becoming more common all the time. Two state Supreme Courts, Minnesota
and Wisconsin, used their supervisory authority to require electronic recording of all in custody interrogations in
order for a defendant’s statement to be admissible in court. See State v. Scales, 518 N.W.2d 587 (Minn. 1994); State
v. Jerrell C.J., 699 N.W.2d 110 (Wis. 2005). New Hampshire, in State v. Barnett, 789 A.2d 629 (N.H. 2001), went
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a recorded statement is only admissible if the interrogation is recorded in its entirety, after reading Miranda rights.
New Hampshire does not, however, suppress the statement; police testimony regarding what the defendant stated is
still admissible.
Several courts have rejected the Minnesota and Wisconsin approach of exercising supervisory authority to mandate
that custodial interrogations be recorded in order to be admissible. See, e.g., State v. Turner, 187 P3d. 185 (Wash. App.
2008) (holding that this issue would better be addressed by the legislature or a Supreme Court rule). However, in Clark
v. State, 287 S.W.3d 567 (Ark. 2008), while the court declined to immediately use its supervisory authority to suppress
an unrecorded confession, it noted that use of a court’s supervisory authority to bar unrecorded statements might be
appropriate and referred the issue to Court’s Committee on Criminal Practice for further consideration.
An increasing number of states are enacting legislative requirements that a custodial interrogation be recorded in
its entirety before a confession can be admitted into evidence. See e.g., D.C. Code § 5-116.01 (2006); 725 Ill. Comp.
Stat. Ann. 5/103-2.1 (West 2006); New Jersey Rules Governing Criminal Practice R. 3:17; Wis. Stat. Ann. § 972.115
(2006). Many of these jurisdictions limit the recordation requirement to certain case types, for example, homicides
in Illinois, and juvenile cases and adult felony cases in Wisconsin. Many have created a legislative remedy short of
suppression for failure to comply and require a jury to be instructed if police fail to record an interrogation.
In Alaska, interrogation recordation is a due process requirement under its state constitution for confessions to
be admissible. Stephan v. State, 711 P.2d 1156 (Alaska 1985). The list of state courts which have declined to mandate
recordation as being constitutionally required by their state constitutions is lengthy:
• Alabama Starks v. State, 594 So.2d 187, 196 (Ala. Crim. App. 1991)
Arizona State v. Jones, 49 P.3d 273 (Ariz. 2002)
• Arkansas Clark v. State, 287 S.W.3d 567 (Ark. 2008)
• California People v. Gurule, 51 P.3d 224 (Cal. 2002)
• Colorado People v. Raibon, 843 P.2d 46 (Colo. Ct. App. 1992)
• Connecticut State v. Lockhart, 4 A.3d 1176 (Conn. 2010)
• Florida State v. Dupont, 659 So.2d 405 (Fla. App. 1995)
Georgia Coleman v. State, 375 S.E.2d 663 (Ga. Ct. App. 1988)
• Hawaii State v. Kekona, 886 P.2d 740 (Haw. 1994)
Idaho State v. Rhoades, 809 P.2d 455 (Idaho 1991)
• Illinois People v. Pecoraro, 677 N.E.2d 875, (Ill. 1997)
Indiana Stoker v. State, 692 N.E.2d 1386 (Ind. Ct. App. 1998)
• Iowa State v. Morgan, 559 N.W.2d 603 (Iowa 1997)
• Kansas State v. Speed, 961 P.2d 13 (Kan. 1998)
• Kentucky Brashars v. Commonwealth, 25 S.W.3d 58 (Ky. 2000)
• Louisiana State v. Thibodeaux, 750 So.2d 916 (La. 1999)
Maine State v. Buzzell, 617 A.2d 1016 (Me. 1992)
• Maryland Baynor v. State, 736 A.2d 325 (Md. 1999)
• Massachusetts Commonwealth v. Diaz, 661 N.E.2d 1326 (Mass. 1996)
• Michigan People v. Fike, 577 N.W.2d 903 (Mich. Ct. App. 1998)
• Mississippi Williams v. State, 522 So.2d 201 (Miss. 1988)
Missouri State v. Blair, 298 S.W.3d 38 (Mo. App. 2009)
Montana State v. Grey, 907 P.2d 951 (1995)
Nevada Jimenez v. State, 775 P.2d 694 (Nev. 1989)
New Hampshire People v. Barnett,789 A.2d 629 (N.H. 2001)
New Jersey State v. Cook, 847 A.2d 530 (N.J. 2004)
New York People v. Martin, 294 A.D.2d 850 (N.Y. App. Div. 2002)
North Carolina State v. Thibodeaux, S.E.2d 501 (N.C. 1995)
North Dakota State v. Goebel, 725 N.W.2d 578 (N. D. 2007)
• Ohio State v. Smith, 684 N.E.2d 668 (Ohio 1997)
• Oklahoma Chambers v. State, 724 P.2d 776 (Okla. Crim. App. 1986)
• Pennsylvania Commonwealth v. Craft, 669 A.2d 394 (Pa. Super. Ct. 1995)
Rhode Island State v. Barros, 24 A.3d 1158 (R.I. 2011)
• Tennessee State v. Godsey, 60 S.W.3d 759 (Tenn. 2001)
• Utah State v. Villareal, 889 P.2d 419 (Utah 1995)
Vermont State v. Gorton, 548 A.2d 419 (Vt. 1988)
• Washington State v. Spurgeon, 820 P.2d 960 (Wash. Ct. App. 1991)
West Virginia State v. Kilmer, 439 S.E.2d 881 (W. Va. 1993)
• Wyoming State v. Evans, 944 P.2d 1120 (Wyo. 1997)
§12:02 In Federal Court
Federal courts also have rejected a recordation requirement to admit confessions. In United States v. Coades, 549
F.2d 1303, 1305 (9th Cir. 1977), the court held that any rule requiring recordation is a matter for Congress to legislate.
The following courts held that recording of police interrogations is not constitutionally required:
United States v. Meadows, 571 F.3d 131 (1st Cir.)
United States v. Tykarsky, 446 F.3d 458, 477 (3d Cir. 2006)
United States v. Montgomery, 390 F.3d 1013, 1017 (7th Cir. 2004), cert. denied, 544 U.S. 968 (2005)
Trice v. War d, 196 F. 3d 1151 (10th Cir. 1999)
United States v. Yunis, 859 F.2d 953 (D.C. Cir. 1988)

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