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Summary

Washington has a statute permitting, but not requiring, recording of custodial interrogations.

Statute

Citation: Wash. Rev. Code § 9.73.090.

General Rule

Video and/or sound recordings may be made of arrested persons by police officers responsible for making arrests or holding persons in custody before their first appearance in court. Such video and/or sound recordings shall conform strictly to the following:

1. The arrested person shall be informed that such recording is being made and the statement so informing him or her shall be included in the recording;

2. The recording shall commence with an indication of the time of the beginning thereof and terminate with an indication of the time thereof;

3. At the commencement of the recording the arrested person shall be fully informed of his or her constitutional rights, and such statements informing him or her shall be included in the recording;

4. The recordings shall only be used for valid police or court activities.

Cases

State v. Mazzante, 86 Wash. App. 425, 428, 936 P.2d 1206, 1208 (1997): “Generally, recordings that fail to comply strictly with statutory requirements are inadmissible . . . In order to satisfy [Wash. Rev. Code § 9.73.090], a recorded statement must contain a full statement of the defendant’s Miranda rights.”

State v. Cunningham, 93 Wash. 2d 823, 829, 613 P.2d 1139, 1143–44 (1980):

Insofar as we are here concerned, RCW 9.73.090 is specifically aimed at the specialized activity of police taking recorded statements from arrested persons, as distinguished from the general public. While mere consent may be wholly sufficient to protect members of the general public whose statements have been recorded under noncustodial conditions, such is not true when dealing with persons whose statements have been taken while under custodial arrest. In the latter situation, consent alone has been deemed insufficient. The legislature has authorized police to make sound recordings of statements made by arrested persons only under carefully circumscribed conditions. The recordings are required to ‘conform strictly’ to rules which ensure that waiver by consent authorized by RCW 9.73.030 is capable of proof by the recording itself thereby avoiding a ‘swearing contest.’

The . . . statutory provisions, when adhered to strictly, will establish within the recording itself that a defendant’s consent was given only after being informed the statement would be recorded; that the consent and resultant statement were given only after being fully informed of one’s constitutional rights, including the exact information imparted; and that the statement was not obtained by means of oppressively long interrogation or interrogation that occurred at unreasonable times or in unreasonable sequences.

Miscellaneous

Departments we have identified that presently record:

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• Custodial Interrogation
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