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Summary

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

Statute

Citation:  Ohio Rev. Code Ann. § 2933.81(B) (2010).

General rule

Statements made by a person suspected of a felony described in the statute during a custodial interview that takes place in a place of detention are presumed voluntary if the statements are electronically recorded by audio or video, from the Miranda warnings until the questioning has completely finished. The person who has made a recorded statement has the burden of proving that the statements were not voluntary.

Consequence of unexcused failure to record

“A failure to electronically record a statement as required by this section shall not provide the basis to exclude or suppress the statement in any criminal proceeding, delinquent child proceeding, or other legal proceeding.” § 2933.81(C):

Preservation

§ 2933.81(C): Required through exhaustion of appeals.

Discussion

The Ohio Supreme Court held (5-2) this statute unconstitutional as applied to juveniles because it impermissibly eliminates the state’s burden of proving voluntariness of custodial statements and places the burden on juvenile defendants to prove that the statements were involuntary.  State v. Barker, 149 Ohio St. 3d 1, 12–13, 73 N.E.3d 365, 377 (2016). The Court stated in its Conclusion:

The statutory presumption of voluntariness created by R.C.2933.81(B) does not affect the analysis of whether a suspect knowingly, intelligently, and voluntarily waived his Miranda rights prior to making a statement to police.  As applied to juveniles, that presumption is unconstitutional…the burden rested squarely on the state to demonstrate both that Barker knowingly, intelligently, and voluntarily waived his Miranda rights and that his statements to the police were voluntary.

The Supreme Court has not yet ruled on the constitutionality of the statute as applied to adults.

In United States v. Younis, 890 F. Supp. 2d 818, 823 (N.D. Ohio 2012), Senior District Judge James G. Carr said of an Ohio state trooper:

As I also expressed at the conclusion of the hearing, I am deeply concerned about the failure of Trooper Stanbaugh to record his interrogation. I neither know of nor can perceive any valid reason for any law enforcement agency or officer, where the means to do so are readily at hand, not to record his or her activities, whether during a traffic stop or in an interrogation room. Officers sworn to uphold not just the laws, but also the Constitutions of the United States and the State of Ohio have the most important of all motives – fidelity to that oath – for recording such encounters.

During the hearing on the motion to suppress, Judge Carr made the following statement:

We’re here for one simple reason that I find inexplicable, and that is the failure to use readily available equipment permanently to record each and every important incident in the chain of events that brings us here.  I do not understand why the trooper can leave his machine running for however long it took to head down the road to the turn around, apparently three or four minutes, I don't know’ but he couldn’t turn it on at least after he saw the first incident.  We wouldn’t be here if he had done so.  And I haven’t heard a good reason why he did not do so.  And I trust that the government will notify the posts in this region that this federal judge expects better of the people whom I and every other citizen of this area are paying to do their job.  If nothing else we’ve wasted his time today, time that he could have been spent making the turnpike and I-75 safer for us to travel, for want of four or five minutes of recording.  I mean, it was at least, I infer, three hours left on the recording device.  He indicated this was his first traffic stop.  His time being on duty had been spent conveying an earlier arrestee to and from the Lucas County Jail.  There is no excuse for that kind of activity.  Likewise, we wouldn’t be here wondering just how well Mr. Younis can or cannot understand English and what was said between Mrs. Younis and her husband in the course of translation if Inspector Stanbaugh had, as apparently many other inspectors state highway patrol and every local agency that I’m aware of, routinely records everything that happens during an interrogation.  It is inexplicable.  It is inexcusable.  It is no way to treat citizens.  It is no way to treat a court of law.  It is no way to treat the Constitution of the United States.  And if it is the ATF policy as it is the FBI policy deliberately not to record its interrogations, then I suggest you talk with the U.S. Attorney’s Office about how I will handle that in the future in any case that goes to a jury in front of me.  There is no reason for that practice, none whatsoever.  And we would not be here unless that practice had not been involved.  I am inclined to find that there’s insufficient evidence in this record to find it more likely than not that those traffic offenses occurred.  And if I find that the stop was illegal and everything that happened thereafter was illegal.  I take the record as I find it.  And I simply am not persuaded by the existence of a routine practice not to do something that is easy.  It’s not innovative.  The equipment is in those cars, it can be turned on and off.  If you’re running out of space on the recording chip, you’re in the vicinity of a patrol post, go in, download it, clean it up, and record.

Supreme Court Case

State v. Osie, 16 N.E.3d 588, 612 (Ohio 2014): Gregory Osie appealed his conviction for aggravated murder, arguing “the trial court should have suppressed his confession because the detectives who obtained it recorded only part of the interrogation.” The Supreme Court of Ohio denied his appeal, and held that “[n]othing in the federal or Ohio Constitution requires that confessions or police interviews be recorded.”

Miscellaneous

Departments we have identified that presently record:

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