Rhode Island’s police departments’ policies require recording of custodial interrogations.
Supreme Court Rulings
State v. Robinson, 989 A.2d 965, 977–78 (R.I. 2010): Leroy Robinson was convicted of sexual assault of a minor after he made an unrecorded confession to a police officer. At trial, he made a motion to suppress his confession, which the trial court denied. He appealed, claiming “the trial justice’s analysis of the voluntariness issue failed to give sufficient weight to the fact that [the police officer] did not take notes or use an audio or video recording device while interviewing [me].” The Supreme Court of Rhode Island denied Robinson’s appeal, and held “[i]t is not a constitutional requirement that, in order for a confession obtained during a custodial interrogation to be deemed voluntary, it must have been contemporaneously recorded.”
State v. Barros, 24 A.3d 1158, 1164 (R.I. 2011): “The defendant’s first contention on appeal is that custodial interrogations conducted in a place of detention should be electronically recorded from start to finish and that his confession should have been suppressed due to the fact that the interrogations that he underwent were not recorded in toto . . . While we acknowledge the thoughtful nature of the arguments presented by defendant and amici concerning the merits of fully recording custodial interrogations, it is our considered view that neither the federal due process clause nor the Rhode Island criminal due process clause provides a criminal suspect with a right to have his or her custodial interrogation electronically recorded in toto.”
A Federal Case
United States v. Mason, 497 F. Supp. 2d 328, 335-36 (D.R.I. 2007). District Court Judge William E. Smith was dealing with law enforcement officers from Providence, Rhode Island, but, in denying defendant’s motion to suppress, he sent a message to both federal and state law enforcement personnel (497 F.Supp.2d at 335-36):
Courts and commentators have consistently struggled to understand the resistance of some in law enforcement to certain practices that offer the possibility of increasing the reliability of evidence in criminal cases. [Citing authorities.]. And, although some states and communities have taken steps to improve these practices, [citing and summarizing from Sullivan article (2004), see Part 5 below], the majority of departments and jurisdictions continue to eschew specific procedures (in reality, reforms) that would help safeguard against the use of unreliable evidence. Id.
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Consider this case as an object lesson on the need for contemporaneous recording of surveillance activities. Here we have an extraordinary set of accusations that are tightly interwoven with indicted allegations against the defendant’s own former counsel and staff. Invocation of the Fifth Amendment as to explosive questions directed at police involvement in the corrupt conspiracy lends oblique but highly inconclusive support for the defendant’s accusations. So there are two possibilities: (1) the defendant has concocted an exceptional weave of the allegations contained in the Cicilline/Torres indictment, his own actual experiences, and some newly-minted fabrications into an alleged scheme worthy of a crime novel; or (2) the allegations of the defendant are true. At this stage, there has been no concrete evidence to support a finding that the allegations are true; however (and regardless of how insulted Sergeant Partridge may be by the suggestion) the former seems hard to fathom as well. If the Providence Police had followed the best practices associated with undercover investigations, including documenting the undercover surveillance and the controlled buys and recording their initial interview with co-defendant Isom, there would be no question or doubt about the veracity of the affidavit-and possible no suppression motion. [Here is the reference to footnote 8, quoted below.] When defendants face possible sentences of up to mandatory life in prison, one would think that the quality of the police work would be better. It is for this reason that continued indifference (or resistance) by the Providence Police Department to practices aimed at curbing the problems discussed above risks this Court’s use of corrective measures.
These could take the form, for example, of a finding that an officer’s testimony be excluded because its reliability, and therefore probative value, is too low compared to its prejudicial effect, see Fed.R.Evid. 403; or in the form of an instruction to the jury, as part of this Court’s usual instruction on how to judge witness credibility, that such undocumented evidence may be disregarded or that the jury may consider the lack of contemporaneous notes or other evidence in determining whether the officer’s testimony is credible. Where simple and efficient reforms of the investigative and information-gathering stages offer the possibility of increasing the accuracy of criminal convictions, law enforcement agencies should move swiftly toward their implementation. Failure to take action effectively pits these agencies against the truth-seeking process, imperils an already vulnerable criminal justice system and will be met with corrective action by this Court.
In footnote 8, Judge Smith wrote:
Lurking in the shadows of this case are other disturbing practices. There is not a single contemporaneous incriminating statement by either defendant (Mason or Isom) that is either recorded or in their own hand. Instead, the only direct evidence linking Mason to the drugs found at 214 Pavilion Avenue (he was not present in the residence immediately before the search) are statements alleged to have been made by Isom during an unrecorded interview in January of 2004 with Partridge. These statements corroborate almost every aspect of the alleged crime but conflict diametrically with Mason’s, Mason’s father’s and Isom’s testimony about the use of the 214 Pavilion Avenue residence. In addition, Isom, who on the stand admitted to a number of incriminating actions including drug dealing, testified emphatically that he never made these statements. That perhaps the only direct link between the drugs and Mason could rest on this unrecorded, and disputed, account raises serious concerns….Although at this point the issue is premature, the reliability and propriety of Partridge’s witness statement recounting Isom’s supposed incriminating statements (and possible other evidence) may at some future point necessitate a more thorough analysis, especially in light of recent empirical research discussing the nature and effect of unrecorded testimony.
Judge Smith wrote an email to the author on January 24, 2009, explaining that the government eventually dismissed the Mason-Isom indictment. He added:
Over the last several years, since the Mason case, I have begun to use a jury instruction that essentially tells the jury that statements from law enforcement officers regarding defendant’s statements, which are not recorded when recording equipment is available, must be viewed with particular caution…I have let it be known that in due course I am going to move to a stronger instruction which includes that language that agencies have refused to adopt a policy of recording in spite of strong encouragement by the court to do so…I continue to believe that federal trial judges will have an important role in influencing the DOJ and the agencies to move in the right direction on this issue.
A model electronic recording policy was promulgated by the Rhode Island Police Accreditation Commission in 2013, which requires that recordings be made of custodial interrogations of persons suspected of capital offenses. The policy has been agreed to by all 43 police departments, and therefore appears to confirm statewide compliance with recording of custodial interrogations of persons suspected of capital felonies.
The chronology is as follows
June 2011: A statute was enacted establishing a Task Force which, “in consultation with whatever experts it may deem appropriate, shall study and make recommendations concerning the establishment of a statewide law enforcement practice of electronically recording custodial interrogations in their entirety.” R.I. Gen. Laws § 12-7-22. The Task Force was created “In order to minimize the likelihood of a wrongful conviction caused by a false confession,” and to “Further improve the already high quality of criminal justice in our state.” § (a), (d). The Task Force’s 11 members include several from the State’s law enforcement community, the Public Defender, the Presidents of the Rhode Island Bar Association and Criminal Defense Lawyers Associations, and the Executive Director of the State Commission for Human Rights. § (b). The Task Force was directed to submit its report to various state officials no later than February 1, 2012, with recommendations concerning the investigation and development of policies and procedures for electronically recording custodial interrogations in their entirety. § (e).
February 1, 2012: The Task Force filed its Final Report with the following recommendations (pages 9-19): No later than July 1, 2013, every law enforcement agency should adopt uniform written policies and procedures requiring electronic recording of custodial interrogations in their entirety. The policies should be consistent with (1) the Task Force recommendations, (2) training afforded law enforcement personnel by specified state police agencies, (3) oversight by the Attorney General, (4) standards promulgated by the Accreditation Commission Standards Committee of the Police Chief’s Association, “which will be used to implement a uniform statewide written policy” regarding electronic recordings.” The interrogations should be recorded using audio-visual equipment, but if that is impossible or impractical, by audio recording. If a suspect refuses to be recorded, the refusal be memorialized electronically or in writing, and signed by the officer, suspect, or both. The written policy should provide that the requirement of recording is dispensed with when exigent circumstances are present (examples given). At a minimum, the written policies should require recording during the interrogation of suspects for a crime for which a life sentence is a potential penalty.
May 2013, revised December 2013: As recommended by the Task Force, the Rhode Island Police Accreditation Commission (RIPAC) included in its Accreditation Standards Manual - which contains mandatory requirements for accreditation of state police departments. (Pages 6-8; § 8.10, pages 45-46; § 9.4, pages 47-48; pages 82-83, and 89-91.) Each department is required to adopt “a written directive that all custodial interrogations in capital cases be electronically recorded in their entirety using audio-visual equipment.” An explanatory paragraph entitled “Guidance” states (page 45): “In addition to guarding against false confessions, the electronic recording of custodial interrogations has many positive benefits for law enforcement in prosecuting the accused. For example, recordings make law enforcement officers more efficient and effective while questioning suspects, permitting officers conducting interrogations to focus more on a suspect’s responses rather than taking written notes of such responses. Recordings also make it unnecessary for 133 officers to struggle to recall details when later writing reports and testifying about what occurred during interrogations. Additionally, recordings offer prosecution and defense attorneys a reliable way of determining whether custodial interrogations were conducted consistent with legal requirements.”
October 2013: RIPAC, in cooperation with the Rhode Island Police Chiefs Association, adopted and distributed to the state’s 43 police departments (Rhode Island has no sheriffs) an “Electronic Recording of Custodial Interrogations” model policy. The model policy provides:
Custodial interrogations of persons suspected of committing a capital offense will be recorded by audio and video, or by audio if video recording is impossible or impractical, from the Miranda warnings to the end. Capital offenses are the listed 25 crimes which carry a maximum penalty of life in prison. § II, IVA, G1.
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Exigent circumstances preclude recording; the suspect refuses to be recorded. § IVF, H.
Consequences of unexcused failure to record
The recording standard is mandatory, therefore failure to adopt or comply with the policy may result in loss of RIPAC accreditation..
A copy of each recording will be preserved in accordance with the department’s protocols for property and evidence. § VI.
We have been advised by a representative of RIPAC: All 43 Rhode Island police departments have agreed to adopt and comply with the model policy. A police department’s failure to adopt or comply with RIPAC’s accreditation standards, which includes the model policy, may result in loss of RIPAC accreditation. The Accreditation Standards Manual has a separate section relating to issues that may arise relating to interrogations of juveniles. § 9.4.
An earlier Supreme Court ruling. In State v. Barros, 24 A.3d 1158 (R.I. 2011), the Supreme Court rejected the argument that the Due Process Clause of the federal or state constitutions require electronic recording of custodial interrogations; the Court declined to exercise its supervisory authority to mandate a recording requirement.
Concurring, Chief Justice Paul A. Suttell stated (24 A.3d at 1184):
…[I write] separately to signify my earnest endorsement of Justice Flaherty’s comments concerning the myriad benefits to the criminal justice system resulting from the electronic recording of police interrogations. It is a practice greatly to be encouraged.
Justice Francis X. Flaherty, dissenting in part and concurring in the result, said:
The challenge of balancing the rights of defendants, the evidence-collecting responsibilities of law enforcement and prosecutors, and the truth-seeking goals of judges and juries has been a moving target. Since Brown v. Mississippi, 297 U.S. 278 (1936) (and without doubt before Brown), courts have struggled to maintain an appropriate balance between these interests in myriad contexts. The increased availability and ease of use of advanced technology has altered that balance still more.
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It is significant that most courts that have considered the merits of electronic recording have concluded that adopting the practice significantly improves the criminal justice system, and specifically, the ability of judges and juries to get to the truth…. There can be no question that as courts and legislatures engage in the continuing work of providing for a just determination in every criminal proceeding, there has been a concomitant trend to require that the interrogations of suspects be recorded. Indeed, since Alaska’s adoption of the practice a quarter of a century ago, fourteen states and the District of Columbia now require law-enforcement personnel to record some or all custodial interviews. The legislatures and the courts of our sister states that have traveled that path have expressed a preference that confessions be recorded through the development of sundry procedures that encourage or mandate such recordings. Those preferences have ranged from (1) a statement by the court of its preference for electronic recording of detention-based custodial interrogations, (2) a statute requiring a jury instruction that a jury may presume involuntariness from the absence of a recording, complete or otherwise, (3) a presumption of inadmissibility when the custodial interrogation is not recorded in its entirety, (4) a presumption of admissibility when the custodial interrogation is recorded in full, (5) a jury instruction conveying that a jury should evaluate with particular caution an alleged statement or confession made at a place of detention and derived from an unrecorded interrogation. Significantly, many law enforcement agencies across the country record such interviews as a matter of sound policy and best practice. (Footnotes omitted.)
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There is no question that there may be a multitude of valid reasons why law enforcement does not record a suspect’s confession. These may range from an experienced interrogator’s judgment that the suspect will not talk if he is being recorded, to the flat refusal of a person being interrogated to give a recorded statement. However, despite such valid potential reasons, it is the fact-finder who carries the burden of adjudging the voluntariness of the statement, and the fact-finder is entitled to the best and highest quality of evidence, or an explanation why it was not presented to it. And it is this Court’s responsibility, under its supervisory authority, to aid the fact-finder in its search for the truth.
Regarding the so-called “Humane Practice Rule” – requiring the trial judge and the jury to make separate and independent determinations of the voluntariness of the defendant’s custodial statements – Justice Flaherty said (24 A.3d at 1190):
… the Humane Practice Rule’s dual-tier review of voluntariness is not in and of itself a sufficient prophylactic to the extent that we can confidently ignore the additional protections provided by the widespread availability and ease of use of highly reliable recording technologies.
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…By encouraging recordings of custodial, detention-centered interrogations, this Court would not undermine the Humane Practice Rule, but would in fact enhance it by providing judges and juries with the most accurate representation of a defendant’s proffered confession.