A Compendium of Law Relating to the Electronic Recording of Custodial Interrogations

Article excerpt

"The recording of custodial interrogations is not,..a measure intended to protect only the accused; a recording also protects the public's interest in honest and effective law enforcement, and the individual interests of those police officers wrongfully accused of improper tactics. A recording, in many cases, will aid law enforcement efforts, by confirming the content and the voluntariness of a confession, when a defendant changes his testimony or claims falsely that his constitutional rights were violated. In any case, a recording will help trial and appellate courts to ascertain the truth."1

On the American Judicature Society website, I have placed a Compendium summarizing my understanding of the current status of the law and practice of state and local governments and federal agencies in making electronic recordings of custodial interrogations of suspects in felony investigations, from the Miranda warnings to the end.

The Compendium is divided into the following five parts, described in more detail below:

Part 1 - Why electronic recordings are beneficial for all concerned.

Part 2 - State -by-state analysis.

Part 3 - Federal investigative agencies.

Part 4 - National organization endorsements.

Part 5 - Bibliography.

Our nine year study of custodial recording law and practices

Since 2003, my associates and I have been studying the practice of state and local law enforcement personnel who use electronic recording devices when interviewing suspects under arrest in police detention facilities in felony investigations, from the Miranda warnings to the end of the interviews. In place of standard survey techniques, we make personal "cold" telephone calls to police and sheriff departments that we have reason to believe routinely make electronic recordings during custodial interviews, although we often speak with departments where recording is not customary.

We have been aided by a firm that trains federal and state law enforcement personnel in interview techniques, Wicklander-Zulawski & Associates, Inc., of Downers Grove, IL. Survey forms are distributed at its training seminars, asking attendees for information relating to their practices and experiences with electronic recordings; the completed surveys are sent to us.

We have now spoken with and received completed survey forms from over one thousand police and sheriff departments, located in every state and the District of Columbia, and ranging in size from large [over 500 officers), to medium (50 to 500], to small (1 to 50). We have collected written protocols and regulations from scores of departments throughout the country, which outline the procedures and methods to be followed when conducting recorded interviews.

As noted, our aim is to identify departments that, as a matter of policy, electronically record by audio, video, or both, the complete questioning of felony suspects from the Miranda warnings to the very end of the interviews. We seek no information relating to interviews conducted outside an official fixed detention facility, for example, those taking place on the street or in a police car. We have no litmus paper test as to the felonies which trigger the recording requirement; this varies widely among states that mandate custodial recordings, and among departments that record voluntarily. We do not list departments that conduct preliminary unrecorded interviews, and then record final statements or confessions. Nor do we include those that use recording on a selective rather than a regular basis. We do allow for exceptions caused by unanticipated and exigent circumstances, for example, equipment failure, refusal of suspects to be recorded, and the like.

We prepare typewritten summaries of all telephone interviews, whether or not the department's practice is to record complete custodial interviews. I then write a personal letter to the person with whom we have spoken or who has completed the survey form, to which is attached our memorandum of the conversation, or the form, with a request for corrections, additions and comments. …