Summary
Colorado has a statute requiring recording of custodial interrogations.
Statute
Citation: Title 16, Article 3, Parts 6, § 16-3-601 (2016).
General rule: An audio-visual recording shall be made of the complete interrogation of persons in custody in a permanent detention facilities concerning the investigation of a class 1 or class 2 felony, or a felony sexual assault described in section 18-3-402, 404, 405 or 405.5. § (1). “’Electronic recording’ means an audio-visual recoding that accurately preserves the statements of all parties to a custodial interrogation.” § (6)(c).
Circumstances that excuse recording: The suspect requests that no recording be made, and the request is recorded or in writing; the equipment fails or is unavailable through damage or extraordinary circumstances; exigent circumstances relating to public safety prevent the preservation by electronic recording; or the interrogation occurs outside Colorado. § (2) (a)-(e). Nothing in this section prevents a court from admitting a statement made in a custodial interrogation in a permanent detention facility as rebuttal or impeachment testimony of the defendant. § (3).
Consequences of unexcused failure to record: If a recording is not made as required, the court may still admit evidence from the interrogation. If the prosecution fails to establish by a preponderance of the evidence that an exception applies, the court shall provide a cautionary instruction to the jury that the failure to record the interrogation is a violation of the law enforcement agency’s policy and state law, and that the violation may be considered by the jury in determining the weight to be given to any statement of the defendant in violation of this policy in the course of the jury’s deliberations. § (4).
Cases
In People v. Raibon, 843 P.2d 46, 49 (Colo. 1992), the Court of Appeals, Division IV, said:
We recognize that the recording of an interview with either a suspect or a witness, either by audiotape or otherwise, may remove some questions that may later arise with respect to the contents of that interview. For that reason, it may well be better investigative practice to make such a precise record of any interview as the circumstances may permit. We decline, however, to mold our particular view of better practice into a constitutional mandate which would restrict the actions of law enforcement agents in all cases.
Dissenting, Judge Jean E. Dubofsky said (843 P.2d at 52-53):
In my view, the Due Process Clause of the Colorado Constitution requires that if, as here, a suspect is detained and questioned at a police station or similar detention place, then an electronic recording (or other comparably accurate recording process) of the conversation must be made or else the confession is inadmissible.
… Even a few hours after hearing a conversation, it is difficult for a person to present precise and accurate testimony about those recent statements. Therefore, testimony about confessions/interrogatories made in court weeks or months afterwards is inevitably incomplete and at least partially inaccurate.
… The present technology exists to record readily and accurately by both video and sound tapes the statements of witnesses and suspects.
Furthermore, by confirming the content, legality, and voluntariness of a confession, a recording will, in many cases, actually aid law enforcement officers. In many situations, a recorded confession and advisement and waiver of constitutional rights will deter a defendant from changing his testimony or making false claims that his constitutional rights were violated. Certainly, such a recording will help the trial and appellate courts determine the truth and thus make more just decisions.
… Furthermore, the court system is entitled to receive the best evidence available in order to resolve the serious criminal matters which come before it. A logical consequence of these principles is the need for the consistent systematic recording of all interviews conducted by police of a detained suspect.
Moreover, the concept of Due Process is not static. See Stephan v. State, supra. Due Process must change to accommodate ideas of what is necessary to provide fundamental fairness to a criminal defendant. In order to do this, the law must change to keep pace with new scientific and technological developments.
Discussion
In 2015, the Colorado Best Practices Committee for Prosecutors presented Recording of Custodial Interrogations: A Report for Law Enforcement. In the report, the Committee stated:
The arguments in favor of recording have been supported by practical experience in the field. In studies and anecdotally, officers, prosecutors, defense attorneys and judges report that recording custodial interviews allows for objective and thorough documentation of suspect statements, fewer motions and hearings regarding the protection of suspects’ rights, better interviewing methods for officers, and the capacity for subsequent review of suspect statements to the benefit of all parties in the criminal justice process. Many of the concerns about recording have been alleviated by laws and policies that permit unrecorded statements to be taken in appropriate circumstances.
