Summary
Utah has a Supreme Court rule requiring recording of custodial interrogations.
Supreme Court Rule
Citation: Utah Supreme Court Rule of Evidence 616 (2015).
General rule
“Except as otherwise provided in subsection (c) of this rule, evidence of a statement made by the defendant during a custodial interrogation in a place of detention shall not be admitted against the defendant in a felony prosecution unless an electronic recording of the statement was made and is available at trial.” § b. “Custodial interrogation” means questioning likely to elicit an incriminating response from a person who is in custody.” § a(1). “Electronic recording” means an audio or audio-video recording. § a(2). “Place of detention…includes a law enforcement agency station, jail, holding cell, correctional or detention facility, police vehicle or any other stationary or mobile building owned or operated by a law enforcement agency.” § a(5).
Circumstances that excuse recording
Statements made prior to January 1, 2016; statements made outside Utah conducted by officers of another jurisdiction; statements offered solely for impeachment purposes; spontaneous statements made outside of a custodial interrogation or during routine processing or booking or before or during a custodial interrogation, if the persons agreed to respond only if no recording was made, provided the agreement is electronically recorded or documented in writing; the officers in good faith failed to make a recording because they inadvertently failed to operate the recording equipment properly, or without their knowledge the equipment malfunctioned; the officers reasonable believed the crime under investigation was not a felony under Utah law; substantial exigent circumstances existed that prevented or rendered unfeasible the making of an electronic recording or prevented its preservation and availability at trial; or the statement has substantial guarantees of trustworthiness and reliability equivalent to those of an electronic recording, and admitting the statement best serves the purposes of these rules and the interests of justice. §§ c(2)-(9). Not later than 30 days before trial, the prosecution must serve notice of intent to offer an unrecorded statement under an exception described in Subsection (c) (4) through (9). § d(1).
Consequences of unexcused failure to record:
“Except as otherwise provided in Subsection (c) of this rule, evidence of a statement made by the defendant a custodial interrogation in a place of detention shall not be admitted against the defendant in a felony criminal prosecution unless an electronic recording of the statement was made. This requirement is in addition to, and does not diminish, any other requirement regarding the admissibility of a person’s statements.” § b.
If the court admits into evidence a statement made during a custodial interrogation that was not electronically recorded under an exception described in Subsection (c)(4) through (9) of this Rule, the court, upon the request of the defendant, may give cautionary instructions to the jury concerning the unrecorded statement. § d(2).
Cases
State v. James, 858 P.2d 1012, 1018 (Utah Ct. App. 1993): “Although, in accord with other courts, we refrain from requiring recording of interrogations under the Utah Constitution, we note several policy reasons for recording interrogations. These include avoiding unwarranted claims of coercion and avoiding actual coercive tactics by police. In addition, recording an interrogation may show the ‘voluntariness of the confession, the context in which a particular statement was made, and … the actual content of the statement.’”
State v. Villarreal, 889 P.2d 419, 426-27 (Utah 1995): “We have previously addressed the importance of making a contemporaneous record of a defendant’s confession, whether by written or electronic means. See State v. Carter, 776 P.2d 886, 891 (Utah 1989). In Carter, we criticized the failure of investigating officers to record the defendant’s confession verbatim and endorsed the practice of tape recording confessions, at least when possible. Such practice better ensures that the confession is accurate when presented to the finder of fact and removes some of the errors that naturally occur in the memories of all persons in recalling events, especially precise words. If an officer’s memory of a confession is distorted, inaccurate, or incomplete, whether because of the lapse of time or a variety of psychological factors, the defendant may be forced into the dilemma of having to waive his right not to testify or allowing an erroneous account of the confession to go to the jury. Recording confessions ‘guarantees that constitutional rights are protected and justice is effected.’ Id. Thus, electronic or other recording of a confession is a simple and inexpensive means of preserving critical evidence in an accurate form and should be implemented wherever possible.
Notwithstanding the desirability of recording confessions, it is neither practicable nor possible to require contemporaneous recordings in all instances. When a formal confession is given in a police station, it could, and should, be recorded. But confessions, and admissions short of a confession, can be made anywhere at unexpected times and places where formal recording is impossible. Barring all such evidence would deprive the courts of much evidence that is generally reliable. Thus, we hold that contemporaneous recording of a confession is not mandated by the Utah Constitution.
