Summary
Maryland has a statute requiring recording of custodial interrogations.
Statute
Citation: MD. Code Ann., Crim. Proc. §§ 2- 402-403 (2008).
General rule
§ 2-402. Public policy. It is the public policy of the State that:
(1) a law enforcement unit that regularly utilizes one or more interrogation rooms capable of creating audiovisual recordings of custodial interrogations shall make reasonable efforts to create an audiovisual recording of a custodial interrogation of a criminal suspect in connection with a case involving murder, rape, sexual offense in the first degree, or sexual offense in the second degree, whenever possible, and
(2) a law enforcement unit that does not regularly utilize one or more interrogation rooms capable of creating audiovisual recordings of custodial interrogations shall make reasonable efforts to create an audio recording of a custodial interrogation of a criminal suspect in connection with a case involving murder, rape, sexual offense in the first degree, or sexual offense in the second degree, whenever possible.
§ 2-403. An audio or video recording made by a law enforcement unit of a custodial interrogation of a criminal suspect is exempt from the Maryland Wiretapping and Electronic Surveillance Act.
§ 2-404. Report. On or before December 31, 2009, and annually thereafter, the Governor’s Office of Crime Control and Prevention shall report to the House Judiciary Committee and the Senate Judicial Proceedings Committee, in accordance with § 2-1246 of the State Government article on the progress of jurisdictions and the Department of State Police in establishing rooms capable of creating audiovisual recordings of custodial interrogations.
Circumstances that excuse recording
None given.
Consequences for unexcused failure to record
None given.
Preservation
None given.
Discussion
The legislature enacted Section 2, chs. 359 and 360, providing in part that “the Governor’s Office of Crime Control and Prevention [GOCCP] shall:…(2) develop a program to assist State and local law enforcement agencies in funding the establishment and operation of interrogation rooms capable of creating audiovisual recordings of custodial interrogations; and (3) monitor and report during State meetings on the progress of jurisdictions and the Department of State Police in establishing interrogation rooms capable of creating audiovisual recordings of custodial interrogations.”
The GOCCP has filed annual reports with the legislature each December. The December 2014 report states that of the 131 agencies in the state, 81 agencies have at least one interrogation room containing both audio and video recording capability. Therefore:
*Under § 2-402(1), each of those 81 agencies is required whenever possible to make reasonable efforts to create audiovisual recordings of custodial interrogations of criminal suspects in cases involving murder, rape, sexual offense in the first degree, or sexual offense in the second degree.
*Under § 2-402(2), each of the other 50 agencies is required whenever possible to make reasonable efforts to create audio recordings of custodial interrogations of criminal suspects in connection with cases involving murder, rape, sexual offense in the first degree, or sexual offense in the second degree.
A Maryland Case
In Wimbish v. State, 201 Md. App. 239, 259, 29 A.3d 635, 646 (2011), the trial court denied the defendant’s motion to suppress his custodial statements after reviewing a videotape made of the interview. The Court of Special Appeals affirmed based upon its independent review of the recording, saying: “We agree with the circuit court’s finding that, here, appellant did not make an unequivocal statement expressing a desire to have a lawyer present.”
