Hawaii’s police departments’ policies require recording of custodial interrogations.
In State v. Kekona, 886 P.2d 740, 746 (Haw. 1994), the Supreme Court said:
Undeniably, recording a custodial interrogation is important in many contexts. A recording would be helpful to both the suspect and the police by obviating the ‘swearing contest’ which too often arises when an accused maintains that she asserted her constitutional right to remain silent or requested an attorney and the police testify to the contrary. A recording would also ‘help to demonstrate the voluntariness of the confession, the context in which a particular statement was made and of course, the actual content of the statement.’ Williams, 522 So.2d at 208. Consequently, although we decline to interpret the due process clause of the Hawaiˋi Constitution as requiring that all custodial interrogations be recorded, we nevertheless stress the importance of utilizing tape recordings during custodial interrogations when feasible.
Dissenting, Justice Steven H. Levinson wrote a lengthy opinion explaining why the Court should adopt the rule of the Alaska Supreme Court in Stephan v. Scales, 711 P.2d 1156, discussed above. He said (886 P.2d at 747-48, 752):
… Despite the fact that ‘recording equipment was readily available’ at the La-haina police station on October 31, 1991, majority opinion at 4, Detectives Endo and Blair inexplicably failed to preserve Kekona’s statement to them verbatim. Thus, our ability to determine on review whether the circuit court’s FOFs [Findings of Fact] that ‘[Kekona] . . . never invoked his right to silence’ (FOF No. 6), ‘[n]o coercion, threats . . ., or improper inducements were utilized to elicit [Kekona’s] statement’ (FOF No. 8), and ‘[Kekona] at no time during the interrogation process . . . invoke[d] his right to terminate questioning’ (FOF No. 10) are clearly erroneous has been severely hampered. Or stated more aptly, the informational vacuum created by the lack of a verbatim rendition of Kekona’s interrogation substantially diminishes the reliability of an examination of ‘“the entire record and . . . an independent determination of the ultimate issue of voluntariness’ based upon . . . ‘the totality of the circumstances surrounding [the defendant’s] statement.’ [Citing State v. Kelekolio, 849 P.2d 58, 69 (Haw. 1993)]
And yet, had the investigating detectives merely pressed the ‘record’ button of the ‘readily available’ recording equipment, the record before us would reflect—to an objective certainty—whether, in the course of questioning, Kekona in fact declared that ‘I no like talk’ and whether Detective Endo thereafter represented to Kekona ‘that he knew various members of Kekona’s family well,’ majority opinion at 404, 886 P.2d at 741, and that ‘if [Kekona] did not talk, [Kekona] would end up like his brother.’ Id. at 404, 886 P.2d at 741….
Although there are undoubtedly cases where the testimony on one side or the other is intentionally false, dishonesty is not our main concern. Human memory is often faulty - people forget specific facts, or reconstruct and interpret past events differently. . . .
I can think of no possible justification as to why, given the dangers and potential abuses so thoroughly explored in Stephan, the police should be permitted to engage in unrecorded custodial interrogations when recording is otherwise feasible. I submit that the majority has been unable to think of any justification either. If I am correct, then there is everything to gain and nothing to lose by adopting the Stephan rule prospectively. That is precisely what makes the majority opinion so baffling to me, especially in the face of the majority’s acknowledgment of ‘the importance of utilizing tape recordings during custodial interrogations when feasible.’ Majority opinion at 409, 886 P.2d at 746.
In State v. Crail, 35 P.3d 197, 206 (Haw. 2001), the Supreme Court said:
This court has recognized that ‘having an electronic recording of all custodial interrogations would undoubtedly assist the trier of fact in ascertaining the truth.’ Kekona, 77 Haw. at 412, 886 P.2d at 749. Such a recording ‘would be helpful to both the suspect and the police by obviating the “swearing contest” which too often arises.’ (Id. at 409, 886 P.2d at 746.) Thus, in such situations, [a] “recording would also help to demonstrate the voluntariness of the confession, the context in which a particular statement was made and of course, the actual content of the statement.’ (Id.)
Four departments – Hawaii County PD, Honolulu PD, Kauai County PD, and Maui County PD – have jurisdiction over the islands which contain Hawaii’s residents. We have been told by knowledgeable officials of each of these departments that for a number of years each has made it a practice to record custodial interrogations of persons suspected of serious crimes. Honolulu and Maui have written regulations on the subject.
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