Summary
Vermont has a statute requiring recording of custodial interrogations.
Statute
Citation: 13 V.S.A., chapter 182, subchapter 3, Law Enforcement Practices, § 5581, Sections 4 and 5 (2014)):
General rule
An audio and video recording shall be made of the complete interrogation of persons in custody in a place of detention concerning the investigation of homicide or sexual assault. Law enforcement shall strive to simultaneously record both the interrogator and the person being interrogated. § (a)(b).
Circumstances that excuse recording
Exigent circumstances; the persons’ refusal to be recorded; a reasonable belief that the person did not commit a homicide or sexual assault; the safety of the person or protection of his or her identity; equipment malfunction. § (c)(1).
Consequences of unexcused failure to record
If the prosecution does not make a recording as required, the prosecution shall prove by a preponderance of the evidence that one of the exceptions applies. If the prosecution does not meet the burden of proof, the evidence is still admissible, but the court shall provide cautionary instructions to the jury regarding the failure to record the interrogation. § c(2).
Preservation
None given.
Discussion
The Law Enforcement Advisory Board (LEAB) plans for implementation: Effective upon passage, the LEAB shall develop a plan for implementation of the electronic recording act. §§ 5(a)6. The LEAB, in consultation with practitioners and experts in recording interrogations, shall inventory the current recording equipment available in Vermont; develop funding options regarding how to equip adequately law enforcement with necessary recording devices; and develop recommendations for expansion of recording to questioning by a law enforcement officer reasonably likely to elicit an incriminating response from the subject regarding any felony offense. § 5(b). On or before October 1, 2014, the LEAB shall submit a written report to the Senate and House Judiciary committees with its recommendations. § 5(c).
In January 2015, the LEAB issued its report in response to the legislature (Page 7):
No. 193. An act relating to law enforcement policies on eyewitness identification and bias-free policing and on recording of custodial interrogations in homicide and sexual assault cases, require that the LEAB develop a plan for the implementation of Sec. 4 of this Act (electronic recording of custodial interrogation) assess the scope and location of current recording inventory in Vermont, develop recommendations on how to adequately equip agencies with recording devices, and provide recommendations on the expansion of recordings for any felony offense….
Recommendation. The LEAB determined that recording equipment is inexpensive and should be considered essential equipment that is built into an agency’s budget. Given that the Act allows for audio recording alone if ‘…law enforcement does not have the current capacity to create a visual recording…’, an agency should, at a minimum, be audio recording custodial interrogations while building the capacity to add video recording.
The LEAB further recommends that a best practice would be for an agency to record all custodial interrogations regardless of offense.
