You asked whether the following states require, either by statute or court decision, that custodial interrogations be taped: Alaska, the District of Columbia, Illinois, Maine, Massachusetts, New Hampshire, New Jersey, New Mexico, and Wisconsin.

SUMMARY

By statute, the District of Columbia, Maine, New Mexico, and Wisconsin require custodial interrogations to be taped (audio or video) under certain circumstances. The laws vary in whether they apply to all cases or just serious crimes (usually violent offenses). The District of Columbia statute establishes a rebuttable presumption that unrecorded interrogations are inadmissible in court. All of the laws have exceptions to the recording requirement, most commonly when recording is infeasible or the suspect declines to have an interrogation recorded. Illinois does not require that interrogations be taped, but in cases involving murder and related offences, the law establishes a rebuttable presumption that unrecorded interrogations are not admissible in court. Wisconsin's law codifies a state supreme court decision that required taping of interrogations of juveniles conducted in places of detention.

In addition to these states, under Texas law (Tex. Code Crim. Proc. Ann. art. 38. 22, § 3), oral statements made in a custodial interrogation are inadmissible in court unless an electronic recording is made. The recording must include the Miranda warning. It must be accurate and unaltered with all of the voices identified. The tape must be preserved until the case is finally adjudicated. North Carolina passed legislation this year (Session Law 2007-434) to require that custodial interrogations in homicide cases be electronically recorded. Recording may be audio or video and must be in its entirety, including a reading of the person's Miranda rights. Video recordings must show both the interrogator and person in custody. If an interrogation is not properly recorded, the court must consider this in adjudicating motions to suppress a defendant's statement, and the failure is admissible in supporting claims that the statement was involuntary or is unreliable. In addition, legislation was passed this session in California to require taping of custodial interrogations, but was vetoed.

Several state supreme courts have established rules regarding taping. The Alaska Supreme Court held that the unexcused failure to record interrogations conducted in places of detention violates due process clause of the state constitution and any statement made in an unrecorded interrogation is generally inadmissible in court. The court placed the burden of showing that recording was infeasible on the law enforcement agency. Massachusetts does not require that interrogations be taped, but its supreme court has held that a defendant whose confession is not electronically recorded is entitled to have a cautionary instruction with respect to confession read to the jury. While the New Hampshire Supreme Court has not required that interrogations be taped, it has mandated that, in order to be admissible in court, any tape recording of an interrogation following the Miranda warning must be complete. New Jersey has adopted a court rule that generally requires recording in cases involving violent and other serious offenses. It makes a failure to record a factor for the court and jury to consider in determining its admissibility and veracity. In the absence of the recording the court must, if requested by the defendant, provide the jury with a cautionary instruction.

STATUTES ON ELECTRONIC TAPING

District of Columbia

D. C. Code Sec. 5-116. 01 et seq. requires the Metropolitan Police Department to electronically record, in their entirety, and to the greatest extent feasible, custodial interrogations of persons suspected of committing a violent crime, when the interrogation takes place in a department interview rooms equipped with electronic recording equipment.

The recording must begin with the first contact between the suspect and law enforcement personnel once the suspect has been placed in the interview room. It must include all subsequent contacts between the suspect and law enforcement personnel in the interview room. The recording must include the giving of any warnings as to rights required by law, the suspect's response, and his consent, if any, to the interrogation. If the required warnings were given before the suspect was placed in the interview room, the suspect must asked to affirm that he was informed of and waived those rights. Law enforcement personnel can record the suspect's actions while they are not in the interview room.

If a suspect who has been given the required warnings and voluntarily waives them announces that he will voluntarily speak with law enforcement personnel only on the express condition that the interrogation not be further recorded, the remainder of the interrogation does not have to be recorded. But, the giving of any warnings, the suspect's response, his conditional consent, and all events preceding the conditional consent must be recorded. Law enforcement personnel may not expressly or implicitly encourage the suspect to give this conditional consent in lieu of a completely recorded interrogation.

Any statement of a person accused of a criminal offense in the district's Superior Court that is obtained in violation of these provisions is subject to the rebuttable presumption that it is involuntary. This presumption may be overcome if the prosecution proves by clear and convincing evidence that the statement was voluntarily given.

Illinois

Under 725 Ill. Comp. Stat. 103-2. 1, an oral, written, or sign language statement made as a result of custodial interrogation conducted at a police station or other place of detention is presumed to be inadmissible in criminal proceedings for people accused of murder, homicide, and other offenses involving death including vehicular homicide while intoxicated unless (1) an electronic recording is made of the custodial interrogation and (2) the recording is substantially accurate and not intentionally altered.

The recordings must be preserved until any adjudication of the minor for any offense relating to the statements is final and all direct appeals and habeas corpus proceedings are exhausted or the prosecution of the offense is barred by law. Any recording made to comply with these requirements is confidential and exempt from public inspection and copying under of the Freedom of Information Act, and the information may not be transmitted to anyone except as needed to comply with the law.

If the court finds, by a preponderance of the evidence, that the minor was subjected to an interrogation that violates these requirements, then any statements the minor made during or after the non-recorded interrogation are presumed to be inadmissible in criminal or juvenile proceedings, except for the purpose of impeachment. However, unrecorded statements can be admitted under certain circumstances, including interrogations made when electronic recording was not feasible or that are spontaneous and not made in response to a question. Unrecorded statements made during custodial interrogations are also admissible if the suspect requests, before making the statement, to respond to the interrogator's questions only if an electronic recording is not made of the statement. In this case an electronic recording must be made of the statement of agreeing to respond to the interrogator's question, only if a recording is not made of the statement.

The presumption of inadmissibility may be overcome by a preponderance of the evidence that the statement was voluntarily given and is reliable, based on the totality of the circumstances.

Under 705 Ill. Code § 405/5-401. 5, the above provisions also apply to the admissibility in juvenile proceedings of non-recorded statements made by minors in custodial interrogations. This provision applies to offenses (1) committed a person who was under the age of 17 when the offense is committed and (2) the offense would have considered one of the covered crimes if committed by an adult.

Maine

The Board of Trustees for the state criminal justice academy must adopt minimum policy standards for the recording and preserving of interrogations of suspects of specified serious crimes (primarily violent offenses). Law enforcement agencies were required to certify to the board by June 1, 2005, that they had adopted policies consistent with the minimum standards. 25 Me. Rev. Stat. 2803-B.

The standards (attached) generally require that a recording be made of any custodial interrogation related to a serious crime conducted by a law enforcement officer at a place of detention. The officer must note in the incident report that a recording was made and whether notes relating to the recording were also made. The officer must also note in the report if a custodial interrogation was not recorded and the reason for not doing so. The law enforcement agency must preserve the recording until the case is finally adjudicated.

The recording requirement does not apply when recording is not feasible or when the suspect refuses, in writing or on tape, to have the interrogation taped. The requirement also does not apply to (1) spontaneous statements that are not made in response to questions, (2) statements that are made in response to questions normally made in the arrest process, and (3) statements made when the questioner is not aware that a serious crime has occurred.

New Mexico

New Mexico requires state or local law enforcement officers to do the following, when reasonably able to do so, when conducting a custodial interrogation of someone suspected of committing a felony:

1. electronically record the custodial interrogation in its entirety;

2. if conducted in a police station, electronically record the custodial interrogation by a method that includes audio or visual or both, if available; and

3. include in the electronic recording the advice of constitutional rights required by law.

A law enforcement officer must comply with these requirements unless he or she has good cause not to electronically record the entire custodial interrogation and makes a contemporaneous written or electronic record of the reasons for not doing so. Good cause includes:

1. the electronic recording equipment was not reasonably available;

2. the electronic recording equipment failed and obtaining replacement equipment was not feasible;

3. the individual refused to be recorded; or

4. the statement was made in a court proceeding or a grand jury proceeding.

However, these requirements do not apply within a correctional facility or to (1) statements that are spontaneously volunteered and not the result of custodial interrogation, (2) custodial interrogations conducted outside of New Mexico, or (3) statements used for impeachment purposes. The provisions may not be construed to exclude otherwise admissible evidence in any judicial proceeding. N. M. Rev. Stat. Sec. 29-1-16.

Wisconsin

In 2005, the Wisconsin Supreme Court exercised its supervisory authority over the court system to require that law enforcement agencies electronically record custodial interrogations of juveniles if they are conducted at a place of detention and to require that, if feasible, law enforcement agencies also electronically record custodial interrogations of juveniles that are conducted at a place other than a place of detention. (See State v. Jerrell, 2005 WI 105 (2003). )

Wis. Rev. Stat. Sec. 938. 195 et seq. codifies these requirements. It generally mandates that a law enforcement agency make an audio or audio and visual recording of any custodial interrogation of a juvenile that is conducted at a place of detention. If feasible, a law enforcement agency must make an audio or audio and visual recording of any custodial interrogation of a juvenile that is conducted elsewhere. A law enforcement officer or agent of a law enforcement agency conducting a custodial interrogation is not required to inform the subject of the interrogation that he or she is making the recording.

The recording requirement does not apply if:

1. the juvenile refused to respond or cooperate in the interrogation and an audio or audio and visual recording was made of the interrogation and the law enforcement officer or agent of a law enforcement agency made a contemporaneous recording or written record of the juvenile's refusal;

2. the statement was made in response to a question asked as part of the routine processing after the juvenile was taken into custody;

3. the law enforcement officer or agent of a law enforcement agency conducting the interrogation in good faith failed to make an audio or audio and visual recording of the interrogation because the recording equipment did not function, the officer or agent inadvertently failed to operate the equipment properly, or, without the officer's or agent's knowledge, the equipment malfunctioned or stopped operating;

4. the statement was made spontaneously and not in response to a question by a law enforcement officer or agent of a law enforcement agency; or

5. there were exigent public safety circumstances that prevented the making of a recording or made recording infeasible.

Under Wis. Rev. Stat. 938. 31(3)(b) a statement made by the juvenile during a custodial interrogation is not admissible in evidence against him or her in any court proceeding alleging the juvenile to be delinquent unless a recording of the interrogation was made. But a juvenile's statement is admissible in evidence if a recording was not required under the above exceptions or if other good cause exists for not suppressing the statement.

COURT CASES

Alaska

In Stephan v. State, 711 P. 2d 1156, 1158 (Alaska 1985), the state Supreme Court held that the unexcused failure to record custodial interrogation violates due process clause of the state constitution and any statement made in an unrecorded interrogation is generally inadmissible in court. In an earlier case (Mallott v. State, 608 P. 2d 737 (Alaska 1980), the court informed law enforcement officials that was incumbent on them to tape record, when feasible, any questioning of criminal suspects, as part of their duty to preserve evidence. The court stated that this was particularly true when the interrogation occurs in a place of detention.

In Stephan, a tape recorder was available when the defendants were questioned, but only used to tape part of the interrogation. The defendants moved to suppress the confessions made during the interrogations, in one instance asserting that he was not given his Miranda rights. The appellate court upheld the subsequent convictions, concluding that the sanction for not recording an interrogation should be determined on a case-by-case basis.

The Supreme Court held that recording is required when an interrogation occurs in a place of detention and recording is feasible. It concluded that recording in such cases was essential to protect the accused's right to counsel, his right against self-incrimination, and ultimately his right to a fair trial, based solely on the state constitution. It specifically required that the recording cover the entire interrogation, including the Miranda warning. It required that the recording be made if feasible, and required the state to show, by a preponderance of the evidence, that recording was not feasible under the circumstances. Unless the failure to record the interrogation is found to be excusable, the Supreme Court required that resulting evidence be inadmissible in court.

Massachusetts

In Commonwealth v. DiGiamattista, 813 N. E. 2d 516 (Mass. 2004) the Massachusetts Supreme Court held that a defendant whose confession is not electronically recorded is entitled to cautionary instruction with respect to the confession. In this case, DiGiambattista was convicted of burning a dwelling, with the conviction resting in large part on his confession to the police during an unrecorded interrogation at a fire station. On appeal, he contended that his motion to suppress the confession because it was not recorded should have been allowed, and that, even with the introduction of the confession, the evidence against him was insufficient because the state failed to present evidence corroborating the confession.

In addressing the recording issue, the Court began by noting that it had previously held that while failure to record an interrogation would not result in automatic suppression of a defendant's statement, the lack of a recording was itself a relevant factor to consider on the issues of voluntariness and waiver. Commonwealth v. Diaz, 422 Mass. 269, 273, 661 N. E. 2d 1326 (1996). It stated that recording all interrogations would improve the “efficiency, accuracy, and fairness” of criminal proceedings. While it declined to mandate recording, it concluded that:

…when the prosecution introduces evidence of a defendant's confession or statement that is the product of a custodial interrogation or an interrogation conducted at a place of

detention (e. g. , a police station), and there is not at least an

audiotape recording of the complete interrogation, the defendant

is entitled (on request) to a jury instruction advising that the

State's highest court has expressed a preference that such interrogations be recorded whenever practicable, and cautioning

the jury that, because of the absence of any recording of the interrogation in the case before them, they should weigh evidence

of the defendant's alleged statement with great caution and care. Where voluntariness is a live issue and the humane practice instruction is given, 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.

Minnesota

In State v. Scales, 518 N. W. 2d 587, 592 (Minn. 1994), the state supreme court mandated suppression of unrecorded custodial interrogations. The court declined to find that a criminal suspect has a due process right under the Minnesota Constitution to have his or her custodial interrogation recorded. Instead, the court exercised its supervisory power to insure the fair administration of justice by requiring that all custodial interrogations be recorded, including any information about rights and any waiver of those rights. The court predicated the suppression of all statements made during custodial interrogation upon a case-by-case determination that the violation of the recording requirement was substantial. If the court does not find that a violation is substantial, it must articulate its reasoning.

New Hampshire

In State v. Barnett, 789 A. 2d 629 (2001), the state supreme court held that in order to be admissible, a taped recording of an interrogation that occurs after Miranda rights are given must be complete. In this case, the suspect initially denied that he had sexually molested two girls. After approximately 45 minutes of questioning, the suspect admitted that he had purposefully fondled the breast of one girl and purposefully rubbing the clothing covering the genitalia of another. At the request of the police, he agreed to repeat his admissions so they could be recorded on audiotape. During the taped interview, he repeated his confession and he was placed under arrest. He was subsequently convicted of sexual assault.

On appeal, Barnett argued that the trial court erroneously admitted the tape recording of his confession because his prior exculpatory statements were not also recorded. He contended that the selective recording of his statements violated his due process rights under the state and federal constitutions. The court established a rule to avoid the inequity inherent in admitting into evidence the selective recording of a post-Miranda interrogation. Under this rule, to be admissible a taped recording of an interrogation, which occurs after Miranda rights are given, the recording must be complete. The police need not tape the administration of a defendant's Miranda rights or the defendant's subsequent waiver of them. But, immediately following the valid waiver of a defendant's Miranda rights, a tape recorded interrogation will not be admitted into evidence unless the statement is recorded in its entirety.

Under this rule, the failure to record the complete interrogation will not result in the wholesale exclusion of the statements made during interrogation. Instead, where the incomplete recording of an interrogation results in the exclusion of the tape recording itself, evidence gathered during the interrogation may still be admitted in alternative forms, subject to the usual rules of evidence.

New Jersey

In the exercise of its supervisory authority, the Supreme Court of New Jersey established a committee in 2004 to investigate whether to encourage electronic recording of interrogations by imposing a presumption against admissibility of a non-recorded statement. It subsequently adopted Rule 3: 17.

This rule requires all custodial interrogations conducted in a place of detention to be electronically recorded when the person being interrogated is charged with various violent crimes, any crime involving the possession or use of a firearm, other specified offenses. The requirement does not apply if:

1. a statement made during a custodial interrogation is not recorded because electronic recording is not feasible;

2. a spontaneous statement is made outside the course of an interrogation;

3. a statement is made in response to questioning that is routinely asked during the processing of the arrest of the suspect,

4. a statement is made during a custodial interrogation by a suspect who indicated, prior to making the statement, that he or she would participate in the interrogation only if it were not recorded (the agreement to participate under this condition must be recorded);

5. a statement is made during a custodial interrogation that is conducted out of state;

6. a statement is given when the accused is not a suspect for the crime to which that statement relates while the accused is being interrogated for a different crime that does not require recording; or

7. the interrogation during which the statement is given occurs when the interrogators have no knowledge that a crime for which recording is required has been committed.

The state has the burden of proving, by a preponderance of the evidence, that one of the exceptions applies. If the state intends to rely on any of these exceptions in offering a defendant's unrecorded statement into evidence, it must give a notice of intent to rely on the unrecorded statement, stating the specific place and time at which the defendant made the statement and the specific exception or exceptions upon which the state intends to rely. The prosecutor must give the defendant or his attorney the names and addresses of the witnesses it intends to use to establish one of the exceptions. The trial court must then hold a hearing to determine whether one of the exceptions applies.

The failure to record a defendant's custodial interrogation in a place of detention is a factor for the trial court to consider in determining the admissibility of a statement, and by the jury in determining whether the statement was made, and if so, what weight, if any, to give to the statement. In the absence of the recording, the court must, if requested by the defendant, provide the jury with a cautionary instruction.

KM: ts