Michigan has a statute requiring recording of custodial interrogations.
Citation: Mich. Comp. Laws §§ 763.7-11 (2012).
Audiovisual recordings shall be made of the entire interrogations of arrested persons in custodial detention in a place of detention regarding involvement in the commission of “a felony punishable by imprisonment for life, for life or for any term of years, of for a statutory maximum of 20 years or more, or a violation of section 520d of the Michigan penal code” relating to criminal sexual conduct in the third degree. §§ 7(d), 8(2). The statutory requirements take effect in each law enforcement agency within either 60 or 120 days after the agency obtains appropriate audiovisual recording equipment or funds for the equipment. §§ 8(1), 11(3)(4).
Circumstances that excuse recording
The person objects to recording the interrogation. § 8(3). However, “a major felony recording may be made without the consent or knowledge of, or despite the objection of the individual being interrogated.”
Consequences of unexcused failure to record
Failure to record as required “does not prevent any law enforcement official present during the taking of the statement from testifying in court as to the circumstances and content of the individual’s statement if the court determines that the statement is otherwise admissible,” but “the jury shall be instructed that it is the law of this state to record statements of an individual in custodial detention who is under interrogation for a major felony and that the jury may consider the absence of a recording in evaluating the evidence relating to the individual’s statement.” Failure to record does not create a civil cause of action. §§ 9, 10.
Within 120 days after the effective date of the act, the Commission on Law Enforcement Standards “shall set quality standards for the audiovisual recording of statements,…and for the geographic accessibility of equipment in the state”; and “conduct an assessment of the initial cost necessary for law enforcement agencies to purchase audiovisual recording equipment,” and conduct assessments regarding the costs of purchasing, upgrading, or replacing the equipment every two years.” § 11(1) The commission shall annually recommend to the legislature an annual appropriation amount , and the legislature shall annually appropriate funds, in addition to other appropriations provided to the commission, for distribution to agencies throughout the state to allow them to purchase audiovisual recording equipment. § 11(2).
A Michigan Case
Chief Justice Marilyn Kelly of the Michigan Supreme Court, dissenting in State v. Parks, 797 N.W.2d 136, 137-38 (Mich. 2011):
Although most courts have concluded that a failure to electronically record police interrogations does not violate their state constitution, many have recognized the benefits of such recordings to all parties. Consequently, many states now require them. A few courts have adopted mandatory recording requirements as part of their supervisory powers. They have held that the proper remedy for a violation of that requirement is suppression at trial of the statement made to the police. Other courts imposing a recording requirement have adopted the remedy of a cautionary jury instruction when that requirement is violated. Still other courts that have not yet adopted a recording rule have directed further study on the merits of adopting such a rule.
Several state legislatures have passed statutes requiring electronic recording of police interrogations. In Michigan, the House of Representatives passed a bill requiring electronic recording of interrogations in 2010, but the legislative session ended before the Senate took it up. The Michigan Senate unanimously passed a similar bill in April of this year, and the measure is currently pending in the House.
Given these developments, I would grant defendant’s application for leave to appeal. The issue that defendant presents involves legal principles of major significance to this state’s jurisprudence. The Court should determine whether, in the exercise of its supervisory powers, it should require that all custodial police interrogations in Michigan be electronically recorded. If so, it should determine the appropriate remedy for a violation of that requirement. (Footnotes omitted.)
A Federal Case
In Giles v. Wolfenbarger, No. 03-74073, 2006 WL 176426 (E.D.Mich. Jan. 24, 2006), rev’d. and vacated on other grounds, 239 Fed. App.145, 2007 WL 1875080 (6th Cir. 2007), a federal habeas corpus petitioner challenging a state court conviction for murder, Wolfenbarger was questioned in a hospital where he was recovering from surgery for two gunshot wounds. At the evidentiary hearing, the officer testified that in his 14 years in the Homicide Section, neither audio or video recording was done of suspect custodial questionings. District Court Judge Tarnow stated, “Respondent’s case is weakened by the lack of an audio or video record.” He then quoted with approval from an article written by the author of this Compendium:
In the past few years, the many benefits of complete audio or video recording of custodial interviews have become increasingly apparent to all parties. For suspects, recordings expose abusive tactics and falsehoods about confessions. For law enforcement officials, recordings spare them from defending unfair charges of using heavy-handed methods or misstating what occurred. Furthermore, prosecutors and defense lawyers no longer engage in courtroom disputes as to what took place: the interviews may contain exculpatory statements favorable to the defense, or admissions which strengthen the prosecution’s case, but in either event, the record is clear and conclusive. Trial judges and reviewing courts no longer have to evaluate conflicting versions of what happened. Unlike the customary interview during which the police make handwritten notes and later prepare a typewritten report, electronic recordings contain a permanent record of the event, leaving no room for dispute as to what officers and suspects said and did.
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