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Summary

Florida has no statute or court rule requiring recording of custodial interrogations.

Discussion

In July 2010, the Supreme Court entered an Administrative Order establishing the Florida Innocence Commission “to conduct a comprehensive study of the causes of wrongful convictions and of measures to prevent such convictions.” The Commission has held a number of hearings and heard from witnesses.

On June 25, 2012, the Commission filed its Final Report with the Supreme Court.  Relating to electronic recording of custodial interrogations, the Report stated:

The Commission voted 12 to 7 “to recommend to the Florida Legislature that a statute under the Florida Evidence Code be enacted making it clear that law enforcement shall record suspect statements during a covered custodial interrogation,” and that “there should be an accompanying criminal jury instruction modeled after the New Jersey instruction” (page 38).

Appendices to the Report contain Standards for electronic recording of custodial interrogations (App. J); a letter to the President of the Florida Senate and the Speaker of the House of representatives (App. K); the proposed recording legislation (App. L); and a proposed jury instruction on failure to electronically record suspect statement (App. M), which the committee proposed the court forward to its “Committee on Standard Jury Instructions in Criminal Cases for its review and possible submission to the Court via a petition” (pp. 38-39).

In 2012, the Commission Chair wrote the President of the Senate and Speaker of the House, providing them with the Commission's recommendation, and copies of the proposed statute and jury instruction. The recommended statute provides that interrogations of persons arrested for “covered offenses” that occur in a place of detention must be electronically recorded in their entirety by audio or video, unless the questioning takes place under circumstances in which an electronic recording is impracticable or law enforcement has other good cause. Covered offenses are felonies specified in the bill.  Covert recordings may be made. Recordings shall be preserved until all legal proceedings are ended.  Failure to record as provided shall be a factor for consideration by the trial court in determining the admissibility of any statement made by the suspect, 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 an electronic recording as required, the court shall provide the jury with a cautionary instruction.

The recommended statute has not been introduced in the Florida legislature.

The recording statute proposed by the Commission was opposed by some representatives of law enforcement.  In this respect, it is relevant to contrast the Florida statute relating to the right of law enforcement officers during hearings that could lead to disciplinary action, suspension, demotion, or dismissal (Fla. Stat., § 112.532(1)(g)):

The formal interrogation of a law enforcement officer or correctional officer, including all recess periods, must be recorded on audio tape, or otherwise preserved in a manner to allow a transcript to be prepared, and there shall be no unrecorded questions or statements.

Recent Proposed Legislation

On December 6, 2017, a representative in the Florida House of Representatives filed H.B. 929, a bill that would have required law enforcement officers to record custodial interrogations taking place at detention centers if those interrogations related to murder, manslaughter or sexual battery. Recording of Custodial Interrogations, H.B. 929, FL Legis. Assemb. § 925.13 (2017). The bill was later introduced, but ultimately died in the Criminal Justice Subcommittee. See H.B. 929, Florida Senate Website, (7/1/2018) https://www.flsenate.gov/Session/Bill/2018/00929.

Cases

In Smith v. State, 548 So. 2d 673 (Fla. Dist. Ct. App. 1987), the Court summarily affirmed a conviction without opinion. Concurring, Judge Hugh S. Glickstein quoted extensively from the opinion of the Supreme Court of Alaska in Stephan v. State, (discussed above) “…in order that we could share it with those reading this opinion – particularly in light of the officer’s testimony in this case.” The officer’s testimony was given in answer to the question, “And what did Mr. Smith exactly say, as best as you can recall?” The officer responded (548 So.2d at 673):

Well, as best as I can recall, I can’t recall. I can refer to the police report, and the police report is written in quotes where he said, ‘Sure.’ However, I cannot put myself back at the station that day and remember that he said ‘sure.’

In State v. Sawyer, 561 So. 2d 278, 280 (Fla. Dist. Ct. App. 1990), the Court said:

In considering the admissibility of Sawyer’s admissions and confessions, the trial court not only had before it numerous witnesses who testified to the circumstances under which the confession was obtained, but the court also reviewed tape recordings of the actual sixteen-hour interrogation session. We wish to commend the Clearwater Police Department in its practice of maintaining a record of interrogations through the use of tape recording and express hope that this policy will continue. We also recommend this practice to all other law enforcement agencies so that challenges to future confessions can be exposed to the light of truth.

Miscellaneous

A man and wife were murdered in their home in October 2006 in Masaryktown, Hernando County.  During the investigation by the sheriff’s office, two detectives interviewed the 18-year old great nephew of the deceased couple, who was 16 at the time of the killings.  A videotape of the interrogation showed the detectives badgering, accusing and threatening, for over 12 hours.  The boy was charged with the murders, and jailed for the next 20 days in the department of Juvenile Justice in Ocala.  Then a DNA match linked another person to the crime, and the nephew was released; eventually, the murder charges were expunged.  After the actual killer was charged and convicted, an Assistant State’s Attorney said, “The bottom line is that the statement [the nephew] gave was not free and voluntary.” https://infoweb.newsbank.com/apps/news/document-view?p=WORLDNEWS&docref=news/138818542FF12D98&f=basic

Departments we have identified that presently record:

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