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Recording Custodial Interrogations: 2007 Update

Significant progress has been made in state legislatures and the courts over the past few years to require the recording of custodial interrogations. Statutes have been passed or case law decided in 12 jurisdictions to require or encourage custodial interrogations to be recorded in certain cases. The jurisdictions include: Alaska, the District of Columbia, Illinois, Iowa, Maine, Massachusetts, Minnesota, New Jersey, New Mexico, North Carolina, Texas, and Wisconsin.¹ 

In 2007, interrogation recording bills were introduced in 19 states. Here are some highlights from the state legislatures and courts over the past year.

California  

For the second time in two years, Gov. Schwarzenegger has vetoed legislation that would require custodial interrogations to be recorded in California. On Oct. 13 he vetoed SB 511, which would have required the recording of interrogations of people suspected of committing a homicide or violent felony. The governor stated in his veto message, “While reducing the number of false confessions is a laudable goal, I cannot support a measure that would deny law enforcement the flexibility necessary to interrogate suspects in homicide and violent felony cases when the need to do so is not clear.”

Iowa  

On Dec. 1, 2006, the Iowa Supreme Court issued its opinion in State v. Hajtic² which, in part, encouraged the police to begin videotaping custodial interrogations.

The case involved a juvenile of Bosnian descent, accused and later convicted of burglary and robbery. On appeal, the defendant claimed that he did not knowingly, intelligently, and voluntarily waive his Miranda rights and confess to the crime. According to the justices, however, the videotape of the defendant’s questioning showed otherwise, and they noted how useful the tape was in making their ruling. The decision includes a discussion of cases from Alaska and Minnesota that required electronic recording of custodial interrogations, as well as the American Bar Association’s endorsement of the policy. While the decision did not include a requirement to record, the justices did write, “We believe electronic recording, particularly videotaping, of custodial interrogations should be encouraged, and we take this opportunity to do so.”

Shortly after the decision, the Iowa County Attorneys Association sent an e-mail to all county attorneys, noting, “While the court says that it is ‘encouraging’ the practice of electronic recording, the Attorney General’s office believes that this decision should be read as essentially mandating the practice from this time forward.”

North Carolina 

In addition to passing a groundbreaking eyewitness identification law, North Carolina also passed a law (HB 1626; Session Law 2007-434) to require custodial interrogations in homicide cases to be electronically recorded. Recording may be via audio or video and must be “in its entirety,” including a reading of the person’s constitutional rights. Video recordings must show both the interrogator and person in custody.

Failure to properly record an interrogation “shall be considered by the court in adjudicating motions to suppress” a defendant’s statement, and “shall be admissible in support of claims that the defendant’s statement was involuntary or is unreliable.”

Vermont 

While Vermont did not pass legislation requiring the police to record custodial interrogations, it did enact a comprehensive law in 2007 to prevent wrongful convictions. SB 6 contained provisions on post-conviction DNA testing; compensation for the wrongfully convicted; a preservation of evidence study committee; and an eyewitness identification and custodial interrogations recording study committee. The second study committee will examine best practices in eyewitness identification procedures and recording custodial interrogations. It will be comprised of various criminal justice stakeholders and must report its findings and recommendations to the legislature by December 15, 2007.

National 

In addition to the various state-level efforts to require the recording of custodial interrogations, there are efforts at the national level as well. The National Conference of Commissioners on Uniform State Laws has approved the formation of a Drafting Committee on Electronic Recordation of Custodial Interrogations to “draft an act addressing the issue of the use of audio and/or video electronic devices to record law enforcement officers’ interviews of criminal suspects who are in custody.” In Congress, Rep. Keith Ellison (D. Minn.) on July 12 introduced HR 3027, the “Effective Law Enforcement Through Transparent Interrogations Act of 2007.” The bill would require custodial interrogations in federal felony cases to be recorded.

Notes

1. Stephan v. State, 711 P.2d 1156, 1162 (Alaska 1985); D.C. Code §§ 5-116.01 to 5-116.03 (West 2007); 725 Ill. Comp. Stat. Ann. § 405/5-401.5 (West 2007), § 5/103-2.1 (West 2007); State v. Hajtic, 724 N.W.2d 449 (Iowa 2006); Me. Rev. Stat. Ann. tit. 25 § 2803-B (West 2007); Commonwealth v. DiGiambattista, 813 N.E.2d 516 (Mass. 2004); State v. Scales, 518 N.W.2d 587, 591 (Minn. 1994); N.J. Sup. Ct. R. 317 (2005); N.M. Stat. Ann. § 29-1-16 (West 2007); N.C. Session Law 2007-434; Tex. Code Crim. Pro. Art. 38.22 (West 2007); Wis. Stat. Ann. § 972.115 (West 2007).
2. 724 N.W.2d 449 (Iowa 2006).

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