Other Grounds for Suppressing Confessions
| Author | Deja Vishny |
| Pages | 579-610 |
SUPPRESSING CRIMINAL EVIDENCE12-1 §12:01
CHAPTER 12: Other Grounds For Suppressing Confessions
I. Introduction
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.
II. Failure to Record Interrogation
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
§12:01 State Courts Take Different Approaches
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
a different direction and used its supervisory authority to bar the admission of selective recordings of statements;
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:
• Arkansas Clark v. State, 287 S.W.3d 567 (Ark. 2008)
OTHER GROUNDS FOR SUPPRESSING CONFESSIONS 12-2§12:02
• Colorado People v. Raibon, 843 P.2d 46 (Colo. Ct. App. 1992)
• Idaho State v. Rhoades, 809 P.2d 455 (Idaho 1991)
• Michigan People v. Fike, 577 N.W.2d 903 (Mich. Ct. App. 1998)
• Missouri State v. Blair, 298 S.W.3d 38 (Mo. App. 2009)
• Montana State v. Grey, 907 P.2d 951 (1995)
• New Hampshire People v. Barnett,789 A.2d 629 (N.H. 2001)
• North Carolina State v. Thibodeaux, S.E.2d 501 (N.C. 1995)
• Oklahoma Chambers v. State, 724 P.2d 776 (Okla. Crim. App. 1986)
• Tennessee State v. Godsey, 60 S.W.3d 759 (Tenn. 2001)
• 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:
SUPPRESSING CRIMINAL EVIDENCE12-3 §12:04
• 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)
• United States v. Yunis, 859 F.2d 953 (D.C. Cir. 1988)
B. Litigating the Recordation Requirement
1. Ground Rules
§12:03 Don’t be Dissuaded by Prior Adverse Rulings
Even if your jurisdiction previously has ruled against mandating recorded interrogation, raise the issue again.
Nationally, there is a trend towards recording. Many courts, while declining to mandate recording, have opined
that it should be done. The following language, in Stoker v. State, 692 N.E.2d 1386, 1930 (Ind. 1998) (citations and
footnotes omitted), is typical.
“…although we impose no legal obligation, we discern few instances in which law
places of detention. Disputes regarding the circumstances of an interrogation would
be minimized, in that a tape recording preserves undisturbed that which the mind may
forget. In turn, the judiciary would be relieved of much of the burden of resolving disputes
involving differing recollections of events which occurred. Moreover, the recording would
voluntarily. Therefore, in light of the slight inconvenience and expense associated with
the recording of custodial interrogations in their entirety, it is strongly recommended, as a
Courts that previously rejected a recording requirement, but urged police departments to record because it is a better
practice and/or recommended state legislatures to enact a mandatory recordation requirement, may be disturbed by
the lack of recommended actions by these bodies. The makeup of courts shifts over time, and previous precedents
may be distinguished or overruled. Thus, the issue is worth litigating, even if your state’s highest court has ruled
adversely to the defense in the past.
§12:04 Making an Argument Under Your State’s Constitution
To raise a due process argument under your state’s constitution, argue that by failing to record the entire interrogation,
the police violated the law under California v. Trombetta, 467 U.S. 479 (1984), and your state’s corresponding case
law. Trombetta held that due process under the Fourteenth Amendment does not require police to preserve physical
evidence unless Id. at 488. The evidence “must
both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that
In Arizona v. Youngblood, 488 U.S. 51 (1988), the court held that police are not constitutionally required to preserve
evidence which, if tested, might exonerate the accused unless the defendant could show bad faith on the part of law
enforcement in destroying the evidence. If your court has adopted Youngblood, you must show bad faith in the
failure to record the interrogation. However, a number of states have rejected Youngblood, holding that their state’s
constitution confers greater rights to the accused and a showing of bad faith is not required. States rejecting, at
least to some degree, absolute adherence to the bad faith standard under their state constitutions or rules of criminal
procedure include:
• Alaska Thome v. Dep’t. of Pub. Safety, 774 P.2d 1328 (1989)
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