UNIFORM ELECTRONIC
RECORDING OF CUSTODIAL INTERROGATIONS ACT
GENERAL PROVISIONS
SECTION 1.
SHORT TITLE. This [act] may be cited as the Uniform Electronic
Recording of Custodial Interrogations Act.
Comment
This Act’s
title captures its subject matter concisely: the electronic recording of
custodial interrogations.
SECTION 2.
DEFINITIONS. In
this [act]:
(1) “Custodial interrogation” means questioning or
other conduct by a law enforcement officer which is reasonably likely to elicit an incriminating response from an individual and occurs when
reasonable individuals in the
same circumstances would consider themselves
in custody.
(2) “Electronic recording” means an audio
recording or an audio and video
recording that accurately records a
custodial interrogation.
(3) “Law enforcement agency”
means a governmental entity or
person authorized by a governmental entity or by state law to enforce criminal
laws or investigate suspected criminal activity. The term includes a
nongovernmental entity that has been delegated the authority to enforce
criminal laws or investigate suspected criminal activity.
(4) “Law enforcement officer” means:
(A) an individual:
(i) employed by a law enforcement agency; and
(ii) whose responsibilities include enforcing
criminal laws or investigating criminal activity;
or
(B)
an individual acting at the request or
direction of an individual described in subparagraph (A).
(5) “Person”
means an individual, corporation, business trust, estate, trust, partnership,
limited liability company, association, joint venture, public corporation,
government or governmental subdivision, agency, or instrumentality, or any
other legal or commercial entity.
(6) “Place of detention” means a
fixed location under the control of a law enforcement agency where individuals
are questioned about an alleged crime or [insert the state’s term for juvenile
delinquency]. The term includes a jail, police or sheriff’s station, holding
cell, and correctional or
detention facility.
(7) “State”
means a state of the United States, the District of Columbia, Puerto Rico,
the United States Virgin Islands, or any territory or insular possession
subject to the jurisdiction of the United States.
(8) “Statement” means a communication whether it is oral,
written, or electronic, nonverbal, or
in sign language.
A. The definition of “custodial interrogation”
is meant to track the United States Supreme Court’s understanding of the term’s
meaning in Miranda v. Arizona, 384 U.S. 436 (1966), as the term is
understood by the Court in Miranda’s
progeny as of the drafting of this Act.
Law enforcement has proven itself capable over more than four decades of
working effectively with the Miranda
test. Thus, whenever law enforcement
would be required to give the warnings established by Miranda, they would also be required to conform with this Act. When such warnings are not required by Miranda, however, this Act has no
application. However, the definition in the Act is still a statutory one,
making no express reference to Miranda,
to forestall difficulties that might arise under the Act should the Court in
the future abandon the Miranda rule
or substantially further alter its meaning.
B. The term “electronic recording” is broadly
defined to include any audio or audio and visual record of a custodial
interrogation, provided that the chosen means record accurately. Therefore,
whenever an electronic recording of custodial interrogation is required by Section
3 of this Act, that recording must necessarily be one that represents the
events that it purports to and must do so as those events actually unfolded and
without misleading omissions. The record
must also remain unaltered or it ceases to comply with the mandates of this
Act.
C.
“Law enforcement agency” is broadly
defined to include any agency whose responsibilities include investigating
suspected criminal activity or enforcing
the criminal law. Thus investigators in prosecutors’ offices; state,
county, and local police; and corrections officers are among the most salient
examples of entities subject to the electronic recording requirements of this
Act. This definition, like that of “statement,” is also a common-sense one
unlikely to raise difficult interpretive questions.
D.
The term “law enforcement officer” means
an individual employed by a law enforcement agency and whose responsibilities
include investigating criminal activity or enforcing the criminal law. Anyone
acting at such an individual’s request or direction is also a law enforcement
officer.
E.
The term “person” is a standard
definition that needs little explanation.
F. The term “place of detention” is meant to
include all fixed locations where persons
are questioned in connection with criminal charges or juvenile delinquency
proceedings. The definition specifies as
examples the most common such locations:
a jail, police or sheriff’s station, holding cell, and correctional or
detention facility. The definition
emphasizes that the location must be “fixed” and thus would not, for example,
include interrogations conducted in roving vehicles, such as a police car. Nor would the definition include places, such
as the suspect’s residence, that are not mobile but are nevertheless not
“fixed” as locations where interrogation frequently occurs. The definition therefore seeks to limit
itself to a relatively small number of locations in any jurisdiction where law
enforcement must equip that location with technology sufficient to
electronically record the entire custodial interrogation of a suspect, from
start to finish, by audio and visual means, in the manner specified by this
Act.
This
definition, of course, creates the danger that law enforcement will routinely
choose to interrogate in locations other than “place[s] of detention” should a
state mandate recording only at such places, one option that Section 3 permits
a state to choose. That danger is addressed in bracketed section 3(e) of this
Act, which requires law enforcement officers conducting custodial
interrogations outside a place of detention to prepare reports as soon as
practicable explaining why they have chosen so to interrogate and summarizing
the entire unrecorded custodial interrogation process. Such reports permit
review by superiors while creating an administrative hurdle that may alone
discourage efforts to circumvent the Act’s goals. Furthermore, Section 15 requires adoption of
rules that permit review by superiors of instances of a failure to record, while
Section 16 protects a state agency from civil liability if it adopts and
enforces reasonable rules to implement the Act. Sections15 and 16 together
thereby help in deterring intentional efforts to evade the Act’s requirements,
as well as discouraging careless inattention to the Act’s mandates.
G.
The term “state” is a standard
definition and needs no explanation.
H.
“Statement” is defined in common-sense
terms to include all verbal and non-verbal “communications,” written, oral or
otherwise. The definition thus includes
any human action intended to convey a message. The definition also extends to
sign language to be clear that accommodations must be made for the deaf.
Ordinarily, the time taken to obtain a translator to interrogate a deaf person should be no greater than the time
needed to travel to a place of detention, so it is likely to be the rare case
where there is a need to interrogate a suspect outside a place of detention.
SECTION 3.
ELECTRONIC RECORDING REQUIREMENT.
(a) Except as otherwise provided by Sections 5
through 10, a custodial interrogation [at a place of detention], including the
giving of any required warning, advice of the rights of the individual being
questioned, and the waiver of any rights by the individual, must be
electronically recorded in its entirety [by both audio and video means] if the
interrogation relates to a [felony] [crime] [delinquent act] [offense]
described in [insert applicable section numbers of the state’s criminal and
juvenile codes]. [A custodial interrogation at a place of detention must be
recorded by both audio and video means.]
(b) If a
law enforcement officer conducts a custodial interrogation to which subsection (a) applies without electronic recording, the officer shall prepare a written report
explaining the reason for not complying with this section and summarizing the
custodial interrogation process and the individual’s statements.
(c) A law enforcement officer shall
prepare the report required by subsection (b) as soon as practicable after
completing the interrogation.
[(d)
As soon as practicable, a law
enforcement officer conducting a custodial
interrogation outside a place of detention shall prepare a written
report explaining the decision to interrogate outside a place of detention and
summarizing the custodial interrogation process and the individual’s statements
made outside a place of detention.]
(e)
This section does not apply to a
spontaneous statement made outside the course of a custodial interrogation or a
statement made in response to questions asked routinely during the processing
of the arrest of an individual.
Legislative Note: In subsection (a), a state that wants to
require recording of all custodial interrogations, regardless of where they
occur, should omit the bracketed phrase “at a place of detention.” A state that
wants to limit the recording requirement to a place of detention should instead
keep that bracketed phrase. Each state must also decide whether it wants to
require video recording in addition to audio recording. If a state intends to
also require video recording, it should include the bracketed language “by both
audio and video means.” If a state elects to require recording of all custodial
interrogations, regardless of location, but wishes to require video recording
only of those occurring at a place of detention, the state should not adopt
that bracketed language (“by both audio and video means”) but should instead
adopt the bracketed sentence at the end of subsection (a). In a state that
elects this last option, and only in such a state, subsection (d) becomes
relevant. It is for this reason that subsection (d) is also bracketed.
A.
The Electronic Recording Mandate
Subsection (a)
requires electronic recording of the entire custodial interrogation process provided
certain triggering circumstances are met. Jurisdictions are offered a choice
between two types of triggering circumstance: (1) the type of wrong done; and
(2) the location of the custodial
interrogation. Specifically, the person interrogated must be suspected of a
crime specifically identified by statutory section and fitting a certain
category of legal wrong. The section offers four bracketed options as to the
category of wrong: “felony,” “crime,” “delinquent act,” or “offense.” Jurisdictions
can also choose a combination of these options. A jurisdiction’s choice of
felonies would limit the mandate to serious norm violations. Choosing “crime”
would instead extend the statute’s mandates to all crimes, increasing costs, at
least in time-investment, though each jurisdiction should be free to decide
whether this increased cost is outweighed by the benefits of broader scope. The
term “delinquent acts” extends the electronic recording mandate to acts by
juveniles that would constitute crimes were they committed by adults or that
otherwise fit a particular jurisdiction’s concept of delinquency or its
synonyms. The term “offenses” extends scope still further to include violations
of norms that are often deemed significant yet are not always labeled a “crime”
in each jurisdiction or may be considered a mere violation. For example, there
are jurisdictions where driving under the influence of alcohol would fit the
term “offenses” but not the term “crime.” This additional extension in scope
would, of course, potentially further expand costs, the brackets again leaving
it to each individual jurisdiction to decide whether the benefits nevertheless
outweigh that cost.
1. Should Audio, Video, or Both be Required?
Jurisdictions
vary on this question, but the combination of both is the most effective choice
for achieving the goals outlined above.
Absent video, demeanor cannot be observed, nor can the subtleties of
body language and position that can affect voluntariness and truthfulness. Absent audio, the important effects of tone
of voice, volume, and pace are lost.
Absent the combination, the overall goal of accurately preserving and
reconstructing the entire interrogation process is sacrificed. What is lost can harm the state’s efforts to
discourage frivolous suppression motions and to present its most powerful case
for conviction. Similarly, these lost
subtleties hamper each defendant’s efforts to prove his innocence or his subjection
to unconstitutional interrogation methods.
Moreover, social science research suggests that even subtle variations
in how interrogation evidence is preserved and presented can have large effects
on how it is perceived by factfinders. Saul
M. Kassin, Steven A. Drizin, Thomas Grisso, Gisli H. Gudjonsson, Richard A.
Leo, Allison D. Redlich, Police-Induced Confessions: Risk Factors and
Recommendations, 34 LAW & HUM BEHAV.
3, 23-27 (2010) (summarizing the research on the impact of confessions evidence
on juries and judges and noting in particular that even camera angle can affect
the ability of judges and jurors accurately to judge the truthfulness and
voluntariness of a confession).
Still,
the perfect should not be the enemy of the good. It is plausible that smaller and even medium
size agencies will not be able to afford audiovisual equipment outside places
of detention, particularly if recording is to be concealed from the suspect, or
may have insufficient serious crime to warrant the investment. The worry that equipment and methods that allow
concealment of recording are more expensive than are more open recording
methods is, however, easily addressed: choose not to conceal. Indeed, some
social science suggests, concealment will not usually reduce a suspect’s
willingness to talk, so why bother doing so?
See RICHARD A. LEO, POLICE INTERROGATION
AND AMERICAN
JUSTICE 303 (2008) (summarizing research,
noting that most suspects in states requiring consent to videotaping simply
consent and promptly forget they are being recorded, and declaring that “a
number of studies – including one by the International Association of Chiefs of
Police (1998) – have concluded that electronic recording does not cause
suspects to refuse to talk, fall silent, or stop making admissions.”). Moreover,
the costs of the necessary equipment are declining, including the costs of
storage, because digital formats rather than videotapes can be used. Furthermore, if the full audio-visual recording
requirement is limited to interrogations in police stations and similar venues
(a matter addressed below), the quantity of equipment required, and thus its
aggregate cost, declines. See also Thomas
P. Sullivan, Police Experience with
Recording Custodial Interrogations: A Special Report Presented by the
Northwestern University School of Law Center on Wrongful Convictions 23-24 (2004) (summarizing additional relative
costs and benefits and noting the declining nature of recording costs generally
over time and with increased experience recording).
The Innocence
Project estimates that, at current retail prices, the out-of-pocket costs for
recording equipment in a single room would roughly be $550. See Innocence
Project, The Recording of Interrogations:
A Range of Cost Alternatives 1 (2008).
The Special Committee on the Recordation of Custodial Interrogations, in
its report to the New Jersey Supreme Court, estimated that “for under a
thousand dollars a video system can be installed recording onto VHS tape.” Cook
Report, www.judiciary.state.nj.us/notices/reports/cookreport.pdf. Denver, Colorado, installed a 25-room system
that stores interrogations on a hard drive capable of burning them onto a CD
for $175,000 ($7000 per room), spending an additional $11,000 for a mainframe
computer to store all interrogation recordings.
See Innocence Project, supra, at 1‑2. Illinois embraced an integrated
state-of-the-art system that records investigator notes too and can allow each
investigator to retrieve interrogation recordings from any computer, thus
enabling detective case-collaboration, for $40,000, outfitting four rooms. Id. at 2.
A less sophisticated one-room system requiring CD burning costs
$8000. See Word Systems, http://www.systems.com.
Additionally,
how much expense is “too much” is subject to debate. Opposition to any recording requirement has
often been based on claims of undue expense.
The response of the technology’s defenders has been to argue that likely
cost savings far outweigh initial and continuing out-of-pocket costs, and
experience seems to be proving this true (departments of varied sizes adopting
recording requirements generally praise them across-the-board, rather than
bemoaning their existence). Perhaps legislation
should work to overcome cost short-sightedness by localities. Mandating both
video and audio recording, under this view, would help localities see the
low-cost forest through the high-cost trees.
Several
options may be chosen: (1) both
audio and video are presumptively mandated whenever recording is feasible but
audio is an acceptable second best choice where video is not reasonably
available in the particular case
(thus rejecting the idea that it can be rendered unavailable in every case
because of cost); (2) both means of recording are required for large
police departments but not smaller or medium ones (raising definitional
problems about how to define each of the categories); (3) either audio or
video is acceptable; or (4) audio is
acceptable but only for categories of cases for which the audio-visual
combination may be unduly expensive, specifically, for custodial interrogations
occurring outside places of detention.
The third option also raises the question of consistency. Should police have to use the same recording
method in each case, or do they have the discretion to choose? If so, is that delegating unwarranted
discretion to the police, thus giving free reign to subconscious racial bias or
permitting visually-aggressive interrogations to be audio taped, allowing gentler voices to distort the true intensity
of the interrogation?
Washington,
DC’s statute seems to embrace option 1, declaring that custodial interrogations
must not only be recorded in their entirety but “to the greatest extent
feasible,” apparently meaning “to capture the most information feasible.” The General Order of the Chief of Police goes
still further, largely eliminating the feasibility requirement and flatly
declaring that all custodial interrogations “shall be video AND audio recorded,”
for emphasis reciting this requirement in bold and italicized letters. Illinois, Maine, Massachusetts, New Mexico,
North Carolina, and Wisconsin, and apparently New Jersey (the text of that
state’s rules is less than crystal clear), on the other hand, adopt option
three. None of the states seem yet to
have been willing to try option two.
Given that
local financial, human, and other resources may vary, and given the expectation
that jurisdictions that have not previously mandated recorded will want time to
experiment and learn from experience in implementing a recording mandate, this
Act offers three major bracketed options. First, a jurisdiction may choose to
require only audio recording. Second, a jurisdiction may choose instead also to
require video recording. Even if this option is chosen, the costs involved will
depend upon what wrongs the jurisdiction has chosen to cover and whether it is
limiting electronic recording to places of detention (costs are low if
electronic recording is limited to a small number of crimes at places of
detention, higher if there are fewer or no such
limitations). Third, a jurisdiction choosing to avoid any locational
limits on the recording mandate has the option of choosing audio and video as
both required but only at places of detention, while audio alone is acceptable
outside such locations.
These
variations in the means for recording recognize both real and perceived
differences in local cost-benefit analyses. But there is no serious doubt that
the benefits of electronic recording are maximized when that recording is done
by both audio and visual means.
2.
Temporal Triggers: When Should Recording
Be Required?
Police
departments embracing recording might someday decide that it is worth the cost
of installing portable audio-visual equipment in every police car and mandating
recording of every interrogation whenever practicable. For now, however, cost, practical, and
political concerns may in some jurisdictions limit the full-blown technology’s
availability to those situations where the dangers of not recording are at
their highest. Furthermore, police often
conduct interviews of numerous witnesses before focusing on, or questioning, a
suspect. Moreover, many such interviews
are informal or open to observation by persons other than the police, reducing
the chances of abuse. Mandating
recording all such interviews would be an enormous burden. One relatively easy time to start the
recording clock running is when police engage in “custodial interrogation,” as
that term is defined in Miranda and
its progeny, thus a definition with which police have long been familiar. Maine, for example, takes this approach,
defining “custodial interrogation” as occurring when “(1) a reasonable
person would consider that person to be in custody under the circumstances, and
(2) the person is asked a question by a law enforcement officer that is
likely to elicit an incriminating response.”
This definition is slightly narrower than Miranda’s (for example, Miranda
recognizes that police words or actions other than asking questions can be
likely to elicit an incriminating response) but tracks it closely. New Mexico, North Carolina, Illinois, and the
District of Columbia follow a similar approach.
3.
Locational Triggers
Limiting
the recording requirement solely to custodial interrogations at police
facilities is the cheapest, most operationally workable approach and the one
least likely to engender opposition. The
District of Columbia—limiting the mandate to properly-equipped police interview
rooms—takes this approach, with Alaska (“police station”) and Iowa (“station
house confession”) following similar approaches.
Illinois
reaches somewhat more broadly, including any building or police station where
police, sheriffs, or other law enforcement agencies may be holding persons in
connection with criminal or juvenile delinquency charges—a definition arguably
sufficient to include jails, but not necessarily prisons. Massachusetts takes a still broader approach,
requiring electronic recording of custodial interrogations at any “police
station, state police barracks, prison, jail, house of correction, or
. . . department of youth services secure facility where persons may
be held in detention in relation to a criminal charge. . . .” North Carolina limits the mandate in a
similar, though not identical, fashion.
New
Mexico’s statute is ambiguous but may be read quite broadly, for it at first
declares that “when reasonably able to do so, every state or local law
enforcement officer shall electronically record each custodial interrogation in
its entirety,” next going on to recount more specific requirements if the
interrogation occurs in a “police station.”
The in-police-station requirement is that electronic recording be done
“by a method that includes audio or visual or both, if
available. . . .” It is
unclear, however, how electronic recording can be done without either audio, or visual, so how the in-police-station
requirement differs from that outside the police station is hard to
fathom. Nevertheless, the statute’s
intent does seem to be that electronic recording be done wherever the interrogation takes place, so long as “reasonably”
feasible. Wisconsin seems to go still
further, placing no locational limitation on the mandate, though it applies
only to felonies.
Extending
the mandate beyond police stations to other law enforcement or correctional
facilities where persons are held in custody, as do Illinois and Massachusetts,
for example, raises costs modestly, but many investigations involve “jailhouse
informants,” who may finger other inmates, and it may be hard to justify giving
lesser protections to those already incarcerated or, even worse, to those who
are simply in jail awaiting trial but unable to make bond. The latter situation in particular makes a
person’s rights turn on income, surely not a desirable state of affairs. Extending protection in this fashion also
ameliorates the danger that police will sometimes (it would admittedly be
logistically difficult for police to do this routinely) switch interrogation
locations as a way of avoiding the recording requirement. As discussed in the
comment to Section 2, the Act also contains safeguards in other sections that
are designed to deter intentional evasion of the Act’s mandates or negligent
inattention to them.
That
danger still exists, of course, for any interrogation in a person’s home or
workplace, or those of his friends and family, if recording need be done only
in a “place of detention.” New Mexico’s
apparent omission of that or a similar requirement at first blush avoids the
problem. But recording, the New Mexico
rule continues, is unnecessary where police are not “reasonably” able to do
so—an exception that can be read so broadly as to swallow the apparent breadth
of the rule. It might (or might not),
for example, be reasonable not to purchase portable
video equipment or not to tape because the time for interrogation is short or
because taping in a particular location might be embarrassing.
Despite
such concerns, Massachusetts has gone even further, not creating even any
arguable locational limits.
Because of
these differences in real and perceived local costs in transitioning to a
regime of standard electronic recording of custodial interrogations, subsection
(a) offers states three options: (1) mandating recording wherever custodial
interrogation occurs; (2) doing so only in places of detention; (3) mandating
it everywhere custodial interrogation occurs, but permitting only audio
recording outside places of detention, while mandating audio and video
recording in such places.
4.
Subject Matter Limitations
To
what crimes should the mandate apply? Most
(though there are exceptions) jurisdictions with statutes have responded, “not
to all,” likely again because of time, money, and other cost
considerations. One option is to limit
the mandate to felonies, especially given the huge relative number of
misdemeanors. Other options are to limit
coverage still further, to “serious crimes,” “serious felonies,” or only
homicides. Drafting issues abound
here. A statute using vague terms like
“serious felonies,” even if defined, offers police little guidance. The solution is either for the statute itself
to list what precise crimes it covers or to mandate that the police, the Attorney
General, or some other governmental entity prepare such a list. Alternatively, the statute might retain a
broad, general term, such as extending the statute’s coverage to “all serious
violent felonies,” while leaving the precise specification of the felonies
included in that term to regulations, interpretations, or general orders by the
police, Attorney General, or other governmental authority. Because crime names and definitions vary among
the states, it is hard for a uniform statute to give much specificity, however,
unless the statute offers an illustrative list or addresses the matter in
commentary. Any distinction among crime
categories also creates some confusion at the margins, for police may be
uncertain early in an investigation whether a crime is, for example, a “felony”
or a “misdemeanor,” “serious” or not.
The
District of Columbia limits the rule to any “crime of violence,” a term defined
by statute to consist of a list of specified crimes, including arson,
aggravated assault, burglary, carjacking, child sexual abuse, kidnapping,
extortion accompanied by threats of violence, malicious disfigurement, mayhem,
murder, robbery, voluntary manslaughter, sexual abuse, acts of terrorism, and
any attempt or conspiracy to commit those offenses if the offense is punishable
by imprisonment for more than one year.
By regulation, the Metropolitan DC Police Department (MPD) extends the
requirement to additional offenses, including assaulting a police officer,
assault with intent to kill, any traffic offense resulting in a fatality,
unauthorized use of a vehicle, or suspected gang recruitment, participation, or
retention activities accomplished by the actual or threatened use of force,
coercion, or intimidation.
Illinois
avoids any general subject matter language, simply listing in its recording
statute the section numbers of those specific offenses defined elsewhere in the
criminal code that are covered by the recording mandate. Maine uses the term “serious crimes,” with a
police General Order listing those specific crimes, all of which involve
violence or its threat or sexual assault or its threat. Massachusetts places no limits whatsoever on
the categories of crimes covered, though the recording must be done only
“whenever practicable,” similar to the DC MPD’s “to the greatest extent
feasible” language. New Jersey covers
specifically listed crimes, listed by name, a list quite similar to that in
DC. New Mexico reaches any “felony.” Wisconsin’s statute also reaches any
“felony,” but offers a remedy only if the case is tried to a jury. North Carolina limits the recording
requirement’s scope to “homicide investigations.”
This
Act, to reduce ambiguity and to limit cost by limiting the recording mandate’s
scope, extends that mandate only to “felonies” (or, in bracketed language, to
crimes, offenses, or delinquent acts, or some combination of these options, as
each jurisdiction may choose) that are specifically listed in the Act by the
legislature. This approach also limits
the mandate to crimes that the people’s representatives consider serious enough
to warrant the cost of recording rather than leaving that judgment to police
discretion. On the other hand, this Act
sets a floor but not a ceiling on recording, requiring police to record at least where the specified crimes are
involved but leaving the police free to choose to record in other cases.
B.
Explanatory Reports Where Ordinarily
Mandated Recording Does Not Occur
Subsection 3(b)
requires a law enforcement officer conducting a custodial interrogation to
which subsection 3(b) applies without electronic recording to prepare a written
report explaining the reasons for not complying with the electronic recording
mandate. The report must also summarize the unrecorded custodial interrogation
process and the individual’s statements. Preparation of such a report permits
review by superiors to ensure that officers depart from recording mandates only
when permitted by the Act. A report that is created and preserved
electronically would satisfy the requirement of a “written” report.
C.
Prompt Report Preparation Where Recording
Does Not Occur
Subsection 3(c)
requires that the report mandated in subsection 3(b) be prepared promptly.
Prompt preparation ensures that the report is made when the events are fresh in
the officer’s mind and promotes timely review and evaluation by the officer’s
superiors.
D.
Report Preparation Where Recording Occurs
Outside a Place of Detention
Bracketed
subsection 3(d) requires a law enforcement officer conducting a custodial
interrogation outside a place of detention to prepare a written report as soon
as practicable explaining the decision to interrogate in such a location. That
report must summarize the custodial interrogation process and the individual’s
statements. This subsection is required only in jurisdictions that require
electronic recording solely in places of detention or that require it by video
and audio means in such places but permit audio means alone in other places.
Again, the report permits prompt review and action by superiors. As with
subsection 3(b), a report that is created and preserved electronically would
satisfy the requirement of a “written” report.
SECTION 4. NOTICE AND CONSENT
NOT REQUIRED. Notwithstanding [cite statutes], a law enforcement officer conducting
a custodial interrogation is not
required to obtain the individual’s consent to the recording nor to inform the individual being interrogated that
an electronic recording is being
made of the interrogation.
Legislative Note: The bracketed language refers to any state statute
requiring that an individual be informed of, or consent to, the recording of
the individual’s conversations. The “notwithstanding” clause makes clear that
the electronic recording of a custodial interrogation is exempt from all the
requirements of any such notice and consent statutes.
Comment
Subsection 4 declares
that law enforcement officers need not warn suspects being custodially
interrogated that their interrogation is being recorded. The available empirical data strongly
suggests that such warnings will not reduce the likelihood that a suspect will
talk, will waive Miranda, or will
agree to be recorded. Thus Professor Richard Leo, perhaps the leading psychological
expert in the country who specializes in the interrogation process, notes that
“a number of studies—including one by the International Association of Chiefs
of Police (1998)—have concluded that electronic recording does not cause
suspects to refuse to talk, fall silent, or stop making admissions.” Leo, supra, at 303. This is so, says Leo, both because most
states where recording does occur do not require prior notice to suspects and
because “even in those states where permission is required, most suspects
consent and quickly forget about the recording (which need not be visible)
. . . .” Id. Indeed, concludes Leo, “The irony of the
criticisms that electronic recording has a chilling effect on suspects is that
exactly the opposite appears to be true.”
Id.; see also Thomas Sullivan, Police
Experience with Recording Custodial Interrogations 22 (2004) (report
published by Northwestern University School of Law Center on Wrongful
Convictions) (“[T]he majority of agencies that videotape found that they were
able to get more incriminating information from suspects on tape than they were
in traditional interrogations.”); cf.
David Buckley & Brian Jayne, Electronic
Recording of Interrogations (2005) (report published by John E. Reid and
Associates) (observing that in a survey of Alaska and Minnesota police
conducting interrogations, 48 percent believed electronic recording benefits
the prosecution more than the defense, 45 percent believed recording benefits
both sides equally, and only 7 percent believed that recording gave the defense
the comparative advantage). Nevertheless, some law enforcement agencies are
unconvinced. This provision addresses
their concerns, unambiguously leaving it up to the interrogators to decide
whether they want to reveal the fact of the recording to the suspect or not.
Some
states prohibit recording conversations where only one party (for example, the
police) has agreed to the recording.
These statutes may fairly be interpreted as extending to custodial
interrogations within the meaning of this Act.
Accordingly, absent a special provision to the contrary, police in such
jurisdictions would be required both to reveal the fact of recording to the
suspect and to get his consent to being recorded. Section 4 addresses this problem by
specifically exempting custodial interrogations done within the scope of this
Act from any otherwise applicable statutory requirements that all parties to a
recorded conversation consent to the recording.
Other jurisdictions have followed analogous approaches.
DC,
for example, does not require that suspects be informed that they are being
taped. Illinois specifically amended its
Eavesdropping Act to permit taping without notifying the suspect of its
occurrence. The Massachusetts Municipal
Police Institute Model Policy, on the other hand, requires informing the
suspect that he is being recorded, as seems to be required by the Massachusetts
wiretap statute. Although the research
suggests that either approach is consistent with obtaining reliable confessions,
it is likely that law enforcement will prefer the freedom to choose
surreptitious taping whenever possible.
SECTION 5. EXCEPTION FOR EXIGENT CIRCUMSTANCES. A custodial interrogation to which Section 3 otherwise applies need
not be electronically recorded if recording
is not feasible because of exigent circumstances. The law enforcement officer conducting the interrogation shall electronically
record an explanation of the exigent circumstances before conducting the
interrogation, if feasible, or as soon as practicable thereafter.
A.
Exceptions Overview
Some
of the statutes, like DC’s, contain no exceptions but include catchall language
that can serve as an exception, such as DC’s requirement that recording occur
“to the greatest extent feasible,” suggesting that in some circumstances
recording is not feasible. Illinois’ statute contains a long list of
“exemptions,” many of which seem to be included for emphasis or clarity because
they are unlikely to involve “custodial interrogation” (at least as defined in Miranda) in the first place. These exemptions focus on listening to,
intercepting, or recording conversations or other communications, including
some that may involve undercover agents or police officers. New Jersey’s court rule lists exceptions,
including (1) whenever recording “is not feasible”; (2) the statement
is made spontaneously outside the course of the interrogation; (3) the
statement is made during routine arrest and processing (“booking”); (4) the
suspect has, before making the statement, indicated refusal to do so if it were
taped (although the agreement to participate if there is no recording of the
interrogation must itself be recorded); (5) the statement is made during a
custodial interrogation out-of-state; (6) the statement relates to a crime
for which recording would be required but for which the defendant was not then
a suspect and is made during interrogation for a crime that does not require
recordation; (7) the interrogation occurs at a time during which the
interrogators had no knowledge that a crime for which recording would be
required had occurred.
This
seems like a sensible list of exceptions.
For ease of reference by law enforcement, this Act separates variants on
these exceptions into separate sections numbered 5 through 10.
B.
Exception for Exigent Circumstances
New Jersey’s simple
broad exception to the electronic recording mandate when it is “not feasible”
is likely to engender interpretive disputes over what it means to say that
recording was “not feasible.” This
feasibility exception thus has the potential to swallow the rule.
Nevertheless,
it is hard to foresee every eventuality in which an exception may wisely be
needed, and a catchall exception may allay fears of undue rigidity. But, to avoid circumventing the statute, the
catchall must be narrowly
construed. It should, for example, be
noted that a similar statement in another context—the legislative history to
the Federal Rules of Evidence—urging narrow interpretation of the catchall
exception to the hearsay rule has apparently not achieved the desired effect.
See, e.g., Myrna Raeder, The Hearsay Rule at Work: Has It Been
Abolished De Facto by Judicial Discretion?, 76 MINN. L. REV. 507 (1992)
(noting that from the enactment of the Federal Rules of Evidence in 1975
through mid-1991 there were 400 reported residual exception opinions, with a
prosecution success rate at admitting residual hearsay of eighty-one percent, despite the Senate Judiciary Committee’s Report
cautioning that the exception should be used only “in exceptional
circumstances” and should not establish a “broad license for trial judges to
admit hearsay statements that do not fall within one of the other
exceptions.”). This observation
might counsel placing limiting language in the rule itself. The term “exigent
circumstances” was thought to be less likely to be as capaciously interpreted as
might “infeasibility” and thus unlikely to swallow the basic rule, while still
permitting exceptions from recording for pressing circumstances specific to an
individual case and perhaps not foreseen by the Act’s drafters. Thus the
exception serves an important purpose while including limiting language to
avoid the rule-swallowing breadth of leaving limitations to legislative history
that the residual hearsay exception befell.
Moreover, the
term “exigent circumstances” has been well-defined by extensive case law in
other areas of criminal procedure, including particularly under the Fourth
Amendment, providing a ready source for analogies and a term familiar to courts
and law enforcement. That familiarity should diminish the scope of interpretive
disputes and provide an effective means for resolving them. Accordingly,
Section 5 of this Act excepts from the electronic recording requirement
situations of non-recording stemming from exigent circumstances.
SECTION 6. EXCEPTION FOR INDIVIDUAL’S REFUSAL TO BE
ELECTRONICALLY RECORDED.
(a) A custodial
interrogation to which Section 3 otherwise applies need not be
electronically recorded if the
individual to be interrogated indicates that the individual will not participate in the interrogation if it is
electronically recorded. If feasible,
the agreement to participate without
recording must be electronically recorded.
(b) If, during a custodial interrogation to which
Section 3 otherwise would apply, the individual being interrogated indicates
that the individual will not participate in further interrogation unless
electronic recording ceases, the
remainder of the custodial interrogation need not be electronically recorded.
If feasible, the individual’s agreement to participate without further
recording must be electronically recorded.
(c) A law enforcement officer may not encourage,
with intent to avoid the requirement of electronic recording, an individual to
request that a recording not be made.
Comment
The exception recited
in Subsection 6(a) is based on the sound idea that doing some interrogation is
better than none if a suspect will not cooperate in recording. Although the suspect has no “right” to be
recorded or to avoid recording, as a practical matter the only way to obtain an
otherwise voluntary and reliable confession where the suspect refuses to speak
if recorded is to comply with his wishes. Because it his wishes that lead to
non-recording, not prompting by law enforcement, it also seems entirely fair to
dispense with recording under those circumstances. At the same time, the
requirement that his refusal to be recorded must itself be recorded where
feasible,” avoids factual disputes over whether he did indeed so refuse.
Subsection 6(b)
mirrors subsection 6(a) but extends its approach to where electronic recording
has begun but during the course of it the suspect declares that he will not
speak further unless recording ceases. Subsection 6(a) thus applies when no
electronic recording occurs at all, while subsection 6(b) applies when
recording is begun but not completed.
Subsection
6(c), again in an effort to prevent the exception from swallowing the rule,
prohibits a law enforcement officer, acting with the intent to avoid the
requirement of electronic recording, from encouraging a suspect to request that
an electronic recording not be made.
SECTION 7. EXCEPTION FOR INTERROGATION CONDUCTED BY
OTHER JURISDICTIONS. If a custodial interrogation occurs in
another state in compliance with that state’s law or is conducted by a federal
law enforcement agency in compliance with federal law, the interrogation need
not be electronically recorded unless the interrogation is conducted with
intent to avoid the requirement of electronic recording in Section 3.
Comment
SECTION 8. EXCEPTION
BASED ON BELIEF THAT RECORDING IS NOT REQUIRED.
(a) A custodial interrogation to which Section 3
otherwise applies need not be electronically recorded if the interrogation occurs when no law enforcement officer conducting the
interrogation has knowledge of facts and circumstances that would lead a
reasonable officer to believe that the
individual being interrogated may have committed a [felony] [crime] [offense] for which Section 3 requires that a custodial
interrogation be recorded.
(b) If, during a custodial interrogation, the individual reveals facts and circumstances giving a law enforcement officer conducting the
interrogation reason to believe that a [felony] [crime] [offense] has been
committed for which Section 3 requires that a custodial interrogation be
electronically recorded, continued custodial interrogation concerning
that [felony] [crime] [offense] must be electronically recorded, if
feasible.
Comment
Section 8 of
this Act addresses some drafting problems by not expecting the police to record
in instances where it is so early in the investigation that they do not know
that an offense for which recording is required is involved. The only difference between subsections (a)
and (b) is that the former addresses the initial decision not to record, while
the latter requires an officer who initially reasonably believed that no
offense was involved that triggers this Act’s electronic recording requirement
discovers during the course of custodial interrogation that in fact a
triggering offense is involved. Once the officer discovers that, contrary to
his reasonable initial beliefs a triggering offense is involved, the officer
must electronically record the remainder of the custodial interrogation, if
feasible.
SECTION 9. EXCEPTION FOR SAFETY
OF INDIVIDUAL OR PROTECTION OF IDENTITY. A custodial interrogation to which Section 3
otherwise applies need not be
electronically recorded if a law enforcement officer conducting the interrogation or the officer’s
superior reasonably believes that electronic recording would disclose the identity of a
confidential informant or jeopardize the safety of an officer, the individual being interrogated, or
another individual. If feasible and consistent with the safety of a
confidential informant, an explanation of
the basis for the belief that electronic recording would disclose the
informant’s identity must be electronically recorded at the time of the interrogation. If contemporaneous
recording of the basis for the belief is not feasible, the recording must be
made as soon as practicable after the interrogation is completed.
Comment
The exceptions
created by Section 8 recognize that the safety of various criminal justice
system actors must be paramount where genuinely endangered by the ultimate
public nature of the recording requirement. Thus if information contained in a
recording creates a substantial risk that the safety of a witness or a
confidential informant will be endangered, recording should not be mandated.
Rather, in such circumstances, law enforcement should have the discretion to
decide whether, in the particular case, the risk of physical harm to an
individual is so great as to require not electronically recording part or all
of a custodial interrogation. This discretion may not be granted, however,
based upon mere speculation as to danger. Rather, the law enforcement officer
conducting the interrogation or his superior must have adequate information
establishing reasonable grounds for believing, and the officer must actually
believe, that electronic recording endangers another’s safety. Such
circumstances are likely to be rare, and the expectation is that this exception
will be used sparingly.
In the case of
confidential informants, revealing their identity may endanger not only their
physical safety but also their further usefulness to law enforcement. Yet,
because the informants’ identity is secret, it is too easy to claim reliance on
protecting such an informant as the basis for nonrecording. Accordingly, where
feasible and consistent with the confidential informant’s safety, an
explanation for the belief that electronic recording of the custodial
interrogation would reveal the confidential informant’s identity must itself be
made electronically contemporaneously with the custodial interrogation. If
contemporaneous recording of the explanation is not feasible, the explanation
must be electronically recorded as soon as practicable after the interrogation
is completed.
[(a)] All or part
of a custodial interrogation to which Section 3 otherwise applies need not be electronically recorded
to the extent that recording is not feasible because the available electronic
recording equipment fails, despite reasonable maintenance of the equipment, and timely repair or replacement
is not feasible.
[(b) If both audio and video recording of a
custodial interrogation are otherwise required by Section 3, recording may be
by audio alone if a technical problem in video recording equipment prevents video recording, despite
reasonable maintenance efforts of
the equipment, and timely repair
or replacement is not feasible.]
[[(b)][(c)] If
both audio and video recording of a custodial interrogation are otherwise
required by Section 3, recording may be by video alone if a technical problem
in the audio recording equipment prevents audio recording, despite reasonable
maintenance of the equipment, and timely
repair or replacement is not feasible.]
Legislative Note: Section (b) and (c) need be considered only in
jurisdictions that choose to mandate both audio and video recording in Section
3.
Comment
Subsection
10(a) excludes from the electronic recording mandate all or any part of a
custodial interrogation that is not feasible because the available recording
equipment has failed, despite reasonable maintenance, where timely repair or
replacement is not feasible. Because the subsection applies only where
equipment failure occurred despite reasonable maintenance efforts, law
enforcement has every incentive to do all it reasonably can to keep its
electronic recording equipment in good shape.
Subsections
10(b) and (c) apply only in jurisdictions that have chosen to mandate both
audio and video recording, at least in certain locations. Subsection (b) allows
for mere audio recording even in places of detention, instead of audio and
video recording, where technical breakdown in video recording capabilities has
occurred. Similarly, under subsection
(c), mere video recording is acceptable where audio capabilities break down. However,
in both subsections, the breakdown must once again have occurred despite
adequate maintenance efforts, thus providing an incentive for devising sensible
maintenance protocols.
Section 10[(b)][(c)]
is bracketed because some members of the drafting committee believed that a
failure of audio recording is so egregious as to render the purely visual
recording virtually useless. The Committee concluded that the full body should
decide whether the failure of audio recording due to maintenance issues should
ever be an acceptable exception.
SECTION 11. BURDEN
OF PERSUASION. If the prosecution relies on an exception in Sections 5
through 10 to justify a failure to make an electronic recording of a custodial
interrogation, the prosecution must prove by a preponderance of the evidence
that the exception applies.
Comment
There
can, of course, be disputes over whether the
facts existed to establish a type of exception, including credibility
disputes. New Jersey addresses this
problem by requiring notice, including of the witnesses the state plans to
call, and a hearing at which the state must prove the applicability of an
exception by a preponderance of the evidence.
Sections
11 of this Act adopts a similar approach.
The section places on the prosecution the burden of proving the applicability
of an exception by a preponderance of the evidence. Although some proposed
statutes suggest a clear and convincing evidence standard, that imposes an undue burden on the prosecution.
The preponderance standard is also consistent with that embraced in much of the
law of constitutional criminal procedure. Yet the burden is not so low that the
state can readily use the exceptions to nullify the electronic recording rule.
SECTION 12. NOTICE OF INTENT TO
INTRODUCE UNRECORDED STATEMENT. If the prosecution intends to introduce in
its case in chief a statement made during a custodial interrogation to which
Section 3(a) applies which was not electronically recorded, the prosecution,
not later than the time specified by [insert citation to statute or rule of
procedure], shall serve the defendant with written notice of that intent and of
any exception on which the prosecution intends to rely.
Comment
Whenever
the prosecution plans to offer into evidence a statement subject to this Act
but relying on an exception, Section 12 requires the prosecution to notify the
defendant of its intention so to rely. This notice provision is modeled on New Jersey
Supreme Court Rule 3:17(c), governing electronic recordation of custodial
interrogations. Sections 11 and 12 of this Act jointly contemplate a hearing,
after notice, if the prosecution relies upon an exception. The notice and
hearing requirements have two major advantages. First, they prevent the
numerous exceptions from swallowing the general rule of electronic recording of
custodial interrogations at places of detention. Law enforcement officers will
know that they must justify their reliance on any exception not only to their
superiors but to a court. Moreover, they must be able to state with specificity
what exceptions they rely upon. Furthermore, they will understand that they
will have to testify at a hearing to support their reliance on an exception – a
hearing at which the state will face a burden of persuading the court by a
preponderance of the evidence that the facts exist justifying the officer’s
decision not to record. Similarly, the provision is likely to motivate
supervisors to ensure that their officers think carefully about whether to rely
on an exception and are able to justify it in a way that will be convincing to
a trial judge.
Second,
these provisions ensure minimally fair process. This Act generally leaves
discovery matters to the law of the individual states. But the default position
underlying the Act is that it is in society’s best overall interest that
electronic recording occur. Although there are sound reasons for creating
exceptions to that mandate, given that default position, the state should have to
justify its deviation from such mandates. The defendant is the person with the
greatest motivation to test the government’s capacity convincingly to make its
case for such deviation. The defendant needs the minimal tools necessary to
fulfilling this function. But, equally importantly, the electronic recording
requirement is designed in part to protect the defendant’s freedom from
coercion and from mistaken conviction. The recording requirement thus helps to
protect against convicting an innocent person while aiding in protecting that
person’s fundamental constitutional rights. Without at least notice of the
nature of the state’s claim that an exception applies, and without provision of
a hearing at which the state must meet the burden of proof by an appropriate
level, a defendant will have little ability to protect his rights and to reduce
the chances of his facing wrongful conviction.
(a) Unless
the court finds that an exception in Sections 5 through 10 applies, the court
shall consider the failure to make an electronic recording of all or part of a
custodial interrogation to which Section 3 applies [as a factor] in determining
whether a statement made during the interrogation is admissible, including
whether it was voluntarily made [or is reliable].
(b) If the
court admits into evidence a statement made during a custodial interrogation
that was not electronically recorded in compliance with Section 3, the court,
upon request of the defendant, shall give cautionary instructions to the jury.
Comment
A. Pretrial Motions
1.
General
Scope and Nature of This Remedy and of Its Justification
This Act does not mandate exclusion of evidence as a
remedy. But it does recognize in
subsection (a) that the failure to comply with the terms of this Act may be
considered relevant in resolving a motion to suppress a confession, including
(but not limited to) doing so on the grounds of its involuntariness or
unreliability. In doing so, this Act
navigates among the inflexible rule of per se exclusion in some states, the
presumed inadmissibility in other states, the overly-complex balancing
approaches recommended by some law reformers, and the complete abandonment of
even the possibility of an exclusionary remedy in one state.
The most likely
grounds for suppression are that the accused gave his statement involuntarily,
that it was unreliable, or that it violated Miranda.
The Act emphasizes the first two grounds as most relevant and important, where
the need for recording is at its highest, but it uses the word “including” to
acknowledge that nonrecording may further be relevant to pretrial suppression on
other grounds, including other federal constitutional ones, but also various
state grounds, particularly in states that have exercised their authority
(either on statutory or state constitutional grounds) to specify additional
grounds for suppression of statements generally. Where this occurs, however,
unjustified nonrecording would still need to be “considered” in the pretrial
motion but would not necessarily result in exclusion of the evidence. Even the
possibility of non-recording’s being a consideration in suppression motions, of
course, generally arises only when Miranda
warnings would also be required (the existence of a “custodial
interrogation” being a necessary trigger for the Act’s provisions), the offense
is one covered by this Act (in most states, this is likely initially to be a
relatively small subset of all crimes), and
one of the Act’s extensive set of exceptions does not apply. That is likely
to be the unusual case, albeit an important situation in which the exclusionary
possibility should be contemplated.
Indeed,
at least seven states and the District of Columbia have adopted, by statute,
court rule, or judicial decision, some version of the exclusionary rule. These states are in widely disparate areas of
the country: Alaska (the Northwest);
Minnesota, Indiana, and Illinois (the Midwest); New Hampshire, New Jersey, and
DC (the Northeast); North Carolina (the South), and arguably Montana – there is
some statutory ambiguity for this state (the West).
Moreover,
although a per se rule of inadmissibility might have the greatest deterrent
effect and be easily administrable, such a rule’s inflexibility is also why it
is the version of the exclusionary rule most likely to face resistance. Such resistance stems from the sense by some
lawmakers that exclusion is a harsh remedy to be deployed only where truly
needed. Alaska, Indiana, and Minnesota (in Minnesota, for “substantial
violations only) have adopted just such
a simple, rigid rule, showing that its adoption is nevertheless not beyond
political reach in at least some states that apparently rejected the
characterization of exclusion as “unduly harsh.”
Nevertheless,
exclusion is generally understood as a remedy turning on a cost-benefit
analysis. Among the primary social benefits of an exclusionary remedy for
violation of this Act’s electronic recording mandate are deterring future
violations, protecting accuracy in fact-finding, protecting against false
confessions occurring in the first place, and adding a statutory layer of
protection to other relevant constitutional rights, such as the due process
right to be free from coercive interrogations and the Fifth Amendment right to
be free from compelled custodial interrogations, including the Miranda prophylactic protection of that
right. But where violation of the Act has only minimally implicated these
social interests, the cost of suppression may not be worth the benefits.
Therefore, the Act merely requires the trial court to consider the relevance
and weight of violation of the electronic recording mandate in pretrial
suppression motion decisions. Merely stating that the unjustified lack of
recording should be “considered” simply leaves its weight undefined, perhaps
suggesting that a trial judge should be free to give the lack of recording decisive weight. Some jurisdictions may
trust the trial court to make precisely just such decisions as among those
commonly made in pretrial motions. For jurisdictions seeking to make it clear,
however, that nonrecording should never alone be sufficient to justify
exclusion, bracketed language declares that the trial judge may consider
exclusion as only “a factor” in the suppression balancing analysis. On the
other hand, rendering violation of the Act irrelevant to pre-trial suppression
motions would not adequately serve the Act’s goals in cases where the interests
the Act serves are substantially implicated, a point explained more fully
below.
Statutory
mandates for decision-makers to consider factors without requiring that they
thereby decide a particular way are common. In the area of constitutional law,
one well-known such statute was unsuccessfully challenged as violating free
speech rights in NEA v. Finley, 524
U.S. 569 (1998). There, Congress
amended the statute governing National Endowment of the Arts (NEA) procedures
for awarding grants to encourage proposed artistic endeavors. The amended
statute directed the NEA chairperson, in establishing procedures for
determining the artistic merit of grant applications, to “take into
consideration general standards of decency and respect for the diverse beliefs
of the American public.” Several grant-applicants denied funding sued the NEA,
claiming that the statute as applied had violated their First Amendment right
to free speech by directing funding-denial for projects espousing a particular
viewpoint.
The United
States Supreme Court, however, rejected this reading of the statute. First, explained
the Court, mandating that an agency “consider” a matter in its deliberations decidedly
does not categorically require funding denial. Second, the legislative history
expressly revealed that Congress rejected any categorical consequences of such
consideration, noting, for example, that an independent Commission advising
Congress on the matter declared in its report that new grant-selection criteria
“should be incorporated as part of the selection process … rather than isolated
and treated as exogenous considerations.” The Court therefore viewed the statutory
provision in Finley as “aimed at
reforming procedures rather than precluding speech,” thereby undermining
“respondents’ argument that the provision inevitably will be utilized as a tool
for invidious viewpoint discrimination.”
Relatedly, the
Court rejected the claim that if the mandate to “consider” a factor does not
require a particular result on the statute’s face, it will render the statute
so impermissibly vague and subjective as to allow the agency to be thoroughly
unconstrained, again permitting invidious discrimination to occur below the
radar. A mandate to “consider” a factor is no more vague, however, concluded
the Court, than the ultimate question to which this consideration contributes
to an answer: whether the grant application is for a project that is likely to
exemplify “artistic excellence.” Only a case-by-case consideration of a wide
array of information can lead to a decision on such a question in an individual
case.
Here, as in Finley, this Act imposes a procedural,
not substantive, requirement that breach of the Act’s recording mandate be
considered in deciding suppression motions on other grounds. The word
“consider,” again as in Finley, thus
does not imply or require a result in a particular case. To the extent that
these comments are considered “legislative history,” they too support such an
interpretation. Furthermore, the word “consider” is no more vague than, for
example, the word “involuntariness,” one ultimate ground for suppression to
which consideration of these Act’s mandates applies, and a test that has long
survived judicial scrutiny. Granted, Finley
involved an agency rather than a court. This is a distinction without a
difference, for legislative mandates for courts to “consider” certain factors
in making case-specific judgments are likewise common, and, in any event,
nothing in the Finley Court’s reading
of text or the rest of its rationale sensibly limits it to the agency context.
It also might
be argued that a statute may not “mandate” that anything be considered in
making a constitutional decision because constitutions trump statutes. This
argument fails for several reasons. First, the constitutional question whether
a confession is “voluntary” is to be made based upon the “totality of the
circumstances.” Among the recording mandate’s purposes is to give the courts a
fuller picture of the circumstances relevant to a confession’s voluntariness
(by recording the events fully and as they actually unfolded) and a stronger
appreciation of the significance for the voluntariness determination of the
absence of that fuller picture. That absence occurs where recording that should
have taken place did not. Violation of the Act’s recording mandate thus
logically entails its consideration in the “totality of the circumstances” test
of voluntariness. For similar reasons, violation of the Act’s recording mandate
should be relevant in determining “reliability.” Violation of the Act’s
mandates should, of course, always be relevant to any pretrial motion in the
sense that the court is deprived of the best evidence of just what the facts
were, including subtleties of tone, voice, and expression. Moreover, the mere
fact of such unjustified nonrecording may be relevant in resolving credibility
disputes. The Act does spell out this logic and its consequences by mandating
that courts consider the Act’s violation in the voluntariness and other
relevant inquiries. But doing so does not require any outcome concerning
whether the confession in the particular case was indeed constitutional or not.
That decision remains the judge’s. There is thus no conflict between statute
and constitution, and other jurisdictions, to be discussed shortly, have seen
no such conflict.
Furthermore,
even were a court to disagree, this Act can and should be understood as
creating a statutory ground for suppression of a confession on grounds of
involuntariness (if bracketed language is adopted, also on grounds of
unreliability, explained in more detail shortly), albeit, given such a ruling, a ground that is
co-terminus with the constitutional due process involuntariness doctrine, with
the sole exception that violation of the Act’s recording mandates must be
considered in the voluntariness determination, even if such consideration is
not otherwise constitutionally required. Indeed, to avoid any confusion on this
ground, the Act spells out involuntariness (and, for jurisdictions adopting
bracketed language, unreliability) as a specifically-identified ground for
suppression.
2.
A
Comparison to Other Jurisdictions in Greater Detail
Remember
that Alaska and Minnesota have adopted a simple, rigid rule of per se exclusion
for violation of their recording mandates. Washington, DC creates a softer rule
of presumed inadmissibility that can be rebutted by clear and convincing prosecution
evidence that the statement was nevertheless voluntary. Illinois also creates a rule of presumed
inadmissibility that can be rebutted but differs from the DC rule in two ways: (1) the prosecution must prove not only
that the statement was voluntarily given but
also that it is reliable, given the totality of the circumstances; and (2) the
prosecution’s burden of proving these matters is only a preponderance of the
evidence. Montana seems to follow a variant of the Illinois rule. Thus the
Montana statute declares that a judge “shall admit statements or evidence of
statements that do not conform to … [the recording mandate] if, at hearing, the
state proves by a preponderance of the evidence that … the statements have been
voluntarily made and are reliable” or that certain exceptions apply.
The
Illinois and Montana rules in particular permit trial use of statements
inexcusably obtained in violation of the recording mandate if the reliability
concerns arising from the recording’s absence are allayed by other evidence,
thus accepting the idea that a remedy for violation of recording requirements
must aim at fact finding accuracy, not only at deterrence. Because the prosecution has the opportunity to
prove that its non-compliance has created no harm, exclusion will be applied
less frequently under this approach than under a per se rule of inadmissibility
and will kick in primarily where there is substantial reason to worry that we
are in danger of convicting the wrong man.
Other
states have created still softer versions of the exclusionary rule. New Jersey, for example, provides that an
unexcused failure to record is a factor
for the court to consider in deciding whether to admit a confession. Where, as in New Jersey, non-recording is but
one factor in a case-specific weighing process, there is ample room for a
statement obtained in violation of recording mandates nevertheless to be
admitted. Yet the uncertainty—the
remaining possibility of exclusion in
a particular case—still provides an incentive for police compliance.
On
the other hand, if the confession is
admitted, New Jersey then requires that a cautionary jury instruction be given.
Exclusion and jury instructions can thus
be seen, as they are in New Jersey, as complementary rather than alternative
remedies. North Carolina follows a
similar approach, making an unexcused failure to record admissible to prove
that a statement was involuntary or
unreliable but, if the confession is nevertheless admitted, requiring a jury
instruction warning that the jury may consider evidence of non-compliance in
deciding whether a statement was voluntary and reliable. Montana likewise
provides for a cautionary instruction if a motion to suppress a non-compliant,
unrecorded statement is denied.
Indeed,
of the states that have enacted recording statutes with remedies, apparently only
Wisconsin (arguably) and Nebraska (definitely) explicitly limit the remedy solely to a cautionary jury instruction
or, in a bench trial in Wisconsin, permits the judge to consider the weight of
the recording requirement violation in judging the worth of the confession. Maine, Maryland, and New Mexico are simply
silent about remedies, which may or may not preclude the courts from crafting
their own.
Although
not yet adopted by any state, there is still another approach to the
exclusionary rule: that proposed by the
Constitution Project, which itself adopted a variant of an early proposal by
the American Law Institute. The
Constitution Project brings together, in a search for common ground, groups
with opposing views on issues central to maintaining liberty in a
constitutional republic. The Project’s
Death Penalty Initiative recommended electronic recording of the entire
custodial interrogation process in capital cases and also recommended a unique
exclusionary remedy for violations of that mandate. See The Constitution
Project, Mandatory Justice: The Death
Penalty Revisited 50 (2006). Both
the Constitution Project and ALI versions of an exclusionary remedy, however,
relied on a detailed, complex balancing process to guide judges, a process
unnecessarily complex and therefore not adopted here. Instead, this Act, while
sharing balancing of interests with the Constitution Project and ALI approaches
to exclusion, trusts judges to be capable of making this sort of judgment, one
with which they are well familiar in other areas, without the need for greater
specificity or undue limitation on their factfinding and balancing discretion.
3. This Act’s Approach Redux: Unreliability as a Ground for
Pretrial Motions
The
approach of this Act is to fuse aspects of the Illinois and New Jersey
approaches. Illinois requires that the
prosecutor prove by a preponderance of the evidence both that an unrecorded statement was voluntary and that it was reliable – an approach
seemingly adopted by Montana as well. Absent
such proof, exclusion of the confession is mandated. North Carolina similarly recognizes both
involuntariness and unreliability as grounds for suppressing a confession. This
Act, unlike that in Illinois, never mandates the exclusionary remedy but makes
violation of the Act one factor in the admissibility decision. In this respect, this Act’s approach mirrors
New Jersey’s, which also makes the failure to record but one factor in the
admissibility decision. But, unlike New
Jersey, but like Illinois, Montana, and North Carolina, this Act expressly recognizes two potential grounds for excluding
a confession based at least partly on the failure to record: that failure’s relevance to proving the
confession’s involuntariness and its
relevance to proving the confession’s unreliability.
The latter
ground for suppression is not one routinely recognized in constitutional law or
in most state statutory law as a ground for suppression of confessions, though,
as noted above, several states have recently done so in the precise context of
nonrecording. Accordingly, in many
states this Act might create a new basis for potential exclusion of a
confession—and it is worth emphasizing again that this is only potential exclusion via a multi-factor
weighing process and only if none of the exceptions to the Act are met. Because of the novelty of this approach in
many, though by no means all, states, further comment on the role of
reliability in suppression motions is warranted. Relative novelty is also why
the language of reliability in this section is bracketed.
The
most common constitutional grounds for suppression of confessions are
violations of the Miranda rule and
the involuntariness of the confession under the due process clauses of the
United States Constitution. A confession
is “involuntary” only if coercive police activity has overborne the suspect’s
will.
A complex of
values underlies this involuntariness rule. The rule’s most obvious concern seems to be
with the suspect’s autonomy, that is, with preventing his decision to confess
from being the result of his voluntary choice. Yet the rule aims in part to deter the state
from being the cause of such involuntariness, so the rule applies only when the
state has placed undue pressure upon a suspect to confess. Thus, in Colorado
v. Connelly, 497 U.S. 157 (1986),
Connelly on his own approached a police officer, confessed that he had murdered
someone, and asked to talk about it. The
trial court suppressed Connelly’s confession, however, on involuntariness
grounds after hearing expert testimony concluding that Connelly suffered from a
psychosis at the time of his confession that compromised his ability to make
free and rational choices. The Colorado
Supreme Court affirmed, but the United States Supreme Court reversed, holding
that there was no coercive police activity that rendered his confession one not
freely made. Mental illness, not the
state, was at fault. Accordingly, no due
process violation had occurred. In
reaching this conclusion, the Court famously said, “‘The aim of the requirement
of due process is not to exclude presumptively false evidence, but to prevent
fundamental unfairness in the use of evidence, whether true or false.’” Id.
at 167 (quoting Lisenba v. California, 314 U.S. 219, 233‑36 (1941)).
Read
in isolation, this quote might suggest that the majority was thoroughly
unconcerned with “reliability,” that is, with whether there is good reason to
trust that the confession was truthful, the defendant therefore guilty. But that impression would be misleading, for
in other cases the Court, lower courts, and commentators have recognized that
one important function of the voluntariness test is to reduce the chances of
convicting the innocent. The Court’s
point was that the danger of wrongful convictions is not alone sufficient to violate due process. The exclusionary rule’s purpose in this area
is to deter police overreaching. Where
there is no such overreaching to deter, the due process clauses are irrelevant,
despite the risk to the accuracy of the adjudication of guilt. Yet the Court recognized that a fundamental
purpose of a criminal trial is to admit “‘truthful
and probative evidence before state juries. . . .’” Id. at
166 (quoting Lego v. Twomey, 4044 U.S. 4477, 488‑89 (1972)). The Court additionally recognized that, even
where coercive police activity is lacking, “this sort of inquiry . . .
[may] be resolved by state laws governing the admission of evidence. . . .
A statement rendered by one in the
condition of respondent might be proved to be quite unreliable, but this is a matter to be governed by the evidentiary
laws of the forum.” Id. at 167 (emphasis added).
Justice
Brennan, joined by Justice Marshall, squarely addressed the reliability
question. Brennan’s main point of
disagreement with the majority was that he thought that free will and
reliability, not overreaching by police officers, should be the sole
constitutional due process inquiries. See id. at 174, 181 (Brennan, J.,
dissenting). Explained Brennan:
Since the Court redefines voluntary
confessions to include confessions by mentally ill individuals, the reliability
of these confessions becomes a central concern. A concern for reliability is inherent in our
criminal justice system, which relies upon accusatorial rather than
inquisitorial practices. While an
inquisitorial system prefers obtaining confessions from criminal defendants, an
accusatorial system must place its faith in determinations of “guilt by
evidence independently and freely secured.”
Id. at 181 (quoting in part Rogers
v. Richmond, 365 U.S. 534, 541 (1961)). Furthermore, said Brennan, “We have learned
the lessons of history, ancient and modern, namely, that “a system of law
enforcement which comes to depend on the ‘confession’ will, in the long run, be
less reliable and more subject to
abuses” than a system dependent upon skillful independent investigation. Id.
at 181 (quoting Escobedo v. Illinois,
378 U.S. 478, 488‑89 (1964))(emphasis added). Indeed, Brennan was particularly concerned
about false or unreliable confessions because of their “decisive impact on the
adversarial process.” Id. at 182. He explained, “Triers of fact accord
confessions such heavy weight in their determinations that ‘the introduction of
a confession makes other aspects of a trial superfluous, and the real trial,
for all practical purposes, occurs when the confession is obtained.’” Id. at
182. Thus, he concluded, “[b]ecause the
admission of a confession so strongly tips the balance against the defendant in
the adversarial process, we must be especially careful about a confession’s
reliability.” Id. at 182.
In
other areas of due process, the Court has reaffirmed that police overreaching
is indeed a requirement for a due process violation. But the Court has also made its continuing
concern with the reliability of factfinding under the due process clauses
evident. A particularly apt example is
the Court’s due process analysis of eyewitness identifications, such as lineups
or photospreads. See Andrew E. Taslitz,
Margaret L. Paris, & Lenese Herbert, Constitutional Criminal Procedure
910-912 (4th ed. 2010). The Court will
not suppress an identification resulting from a suggestive identification
procedure unless that suggestion was unnecessarily created by the police. See id. at
910-11. But if the police have
overreached in this area, the sole remaining question for the Court in deciding
the admissibility of the out-of-court identification procedure is reliability. See id. at 912. Indeed, says the Court, reliability is the
“linchpin” of the analysis. The Court
will go even further and under certain conditions suppress an in-court
identification if it is the fruit of an unreliable out-of-court one. The reason for this is that the reliability of
the in-court identification then itself becomes suspect.
Custodial
interrogations by definition involve state action. Similarly, motions to suppress confessions
resulting from such interrogations necessarily involve claims of police
overreaching. Therefore, the logic of
the Court’s due process jurisprudence should permit an inquiry into
reliability, including as part of the decision whether to suppress a confession
on grounds of involuntariness. But the
involuntariness test still contains the danger of admitting unreliable
confessions—ones that may convict the innocent—that are nevertheless not the
result of an “overborne will.” Moreover,
the Court’s due process jurisprudence is rarely muscular, generally setting a
very low floor of reliability. Accordingly,
it is wise to craft other mechanisms for making suppression on the grounds of
unreliability alone a basis for
suppression. One such mechanism is the
inherent supervisory power of the courts. See,
e.g., Commonwealth v. DiGiambattista, 442 Mass. 423, 440‑49 (2004)
(holding, via its supervisory power, that a sanction must be imposed on the
state whenever it fails electronically to record the entire custodial
interrogation process, though creating the sanction of a jury instruction
rather than suppression, while rejecting claims that this approach violated the
separation of powers.) Explained the DiGiambattista court,
The issue is not what we “require”
of law enforcement, but how and on what conditions evidence will be admitted in
our courts. We retain as part of our
superintendence power the authority to regulate the presentation of evidence in
court proceedings. The question
before us is whether and how we should
exercise that power with respect to the introduction of evidence concerning
interrogations.
Id. at 444‑45. The
Massachusetts court’s primary reason for taking this action was this: where there are “grounds for [doubting the] reliability
of certain types of evidence that the jury might misconstrue as particularly
reliable,” curative action is required. Id. at 446.
Another
basis for more muscular protections can be state due process clauses. This approach indeed was followed by Alaska’s
highest court in Stephan v. Harris, 711 P.2d 1156, 1159‑63 (1985). There, the Court created an exclusionary
remedy under its state constitution’s due process clause for the failure
electronically to record custodial interrogations in their entirety. Said the Court, “[s]uch recording is a
requirement of state due process when the interrogation occurs in a place of
detention and recording is feasible.” Id. at 1159. “We reach this conclusion,” the Court
explained, “because we are convinced that recording, in such circumstances, is
now a reasonable and necessary safeguard, essential to the adequate protection
of the accused’s right to counsel, his right against self incrimination and,
ultimately, his right to a fair trial.” Id. at 1159‑60. Due process, the court added, is not a
“static” concept but “must change to keep pace with new technological
developments.” Id. at 1161. The
technological feasibility of electronic recording of the entire custodial
interrogation process was just such a development. Finally, the court concluded:
In the absence of
an adequate record, the accused may suffer an infringement upon his right to
remain silent and to have counsel present during the interrogation. Also, his right to a fair trial may be
violated, if an illegally obtained, and possibly
false, confession is subsequently admitted. An electronic recording, thus, protects the
defendant’s constitutional rights, by providing an objective means for him to
corroborate his testimony concerning the circumstances of the confession.
Id. at 1161 (emphasis added).
Commentators
have also argued that Federal Rule of Evidence (“FRE”) 403 and its state law
equivalents already authorize suppression of evidence, including
interrogations, that is unreliable. The argument is straightforward. Rule 403
gives the trial judge discretion to exclude even relevant evidence if its
probative value is substantially outweighed by a variety of countervailing
concerns, including the dangers of unfair prejudice and misleading the jury.
Given the psychological data showing the powerful tendency of even false confessions
to induce juries to convict, argue these commentators, a confession obtained
under circumstances having strong indicia of unreliability will mislead the
jury. Accordingly, the trial court has the discretion to exclude such evidence.
See
RICHARD
LEO, POLICE INTERROGATION
AND AMERICAN
JUSTICE 288 (2008).
These
same commentators also point out that some courts have embraced a reliability
rule on a variety of grounds but under the rubric of “trustworthiness.” Law
professor and cognitive psychologist Richard Leo made the point thus:
Several state
courts and the federal district courts have chosen to adopt a … rule of
corroboration, most often termed the “trustworthiness standard”….In marked
contrast to the corpus delecti rule [requiring merely proof independent of the
confession that some crime indeed occurred], the trustworthiness standard
requires corroboration of the confession itself …. Under the trustworthiness
standard, before the state may introduce a confession it “must introduce
substantial independent evidence which would tend to establish the
trustworthiness of the [confession]…. In effect, the trial court judge acts as
a gatekeeper and must determine, as a matter of law, that a confession is
trustworthy before it can be admitted. In making the trustworthiness
determination, the judge is to consider “the totality of the circumstances”….
Only after a confession is deemed trustworthy by a preponderance of the
evidence may it be admitted into evidence.
See id. at 284.
Leo
outlines a variety of factors courts should consider, based upon the empirical
evidence, in making this trustworthiness or reliability determination, while
also offering his own variant on the reliability test. What matters here are
not the details of any particular approach but rather the recognition that the
unreliability of a confession – one bearing hallmarks raising a risk of the
confession’s falsity, or lacking any evidence suggesting the alleviation of
such a risk, should be an independent ground for suppression from involuntariness.
Several states, and a growing number of proposals, would indeed more broadly
embrace the reliability standard as one governing a wide array of evidence
raising the risk of wrongful convictions, including, for example, “snitch”
testimony and that of questionable experts. See
ALEXANDRA NATAPOFF, CRIMINAL INFORMANTS AND THE EROSION
OF AMERICAN JUSTICE 191, 194-95 (2009). In the interrogation context, Leo and others have recognized,
furthermore, that electronic recording is essential to sound fact-finding
concerning a confession’s reliability. This Act thus recognizes that violation
of the Act’s recording mandates should be one factor in a motion to suppress a
confession as unreliable but rejects the draconian solution of per se exclusion
under such circumstances.
State
constitutional due process clauses as interpreted by their courts and those
courts’ interpretations of the scope of their inherent supervisory power over
the admission of evidence will vary widely. Reliance on state equivalents to FRE 403 as
grounds for exclusion based upon unreliability is uncertain, given the dearth
of court decisions on the point. Some courts articulate fuzzy grounds for their
approach to reliability questions, and some approaches are too inflexible and
harsh. Legislative action, by contrast, brings a democratic imprimatur and the
significant investigative resources of the legislature to bear on designing
appropriate remedies. A Uniform Act’s
attention to remedies thus promises sounder and more uniform approaches to the
remedies question. At the same time,
this Act’s approach does not even arguably intrude in any significant way upon
judicial prerogatives because the Act merely makes violation of its provisions one factor for courts to consider in
making the admissibility decision.
Finally,
some commentators have argued that even the prospect of exclusion is
unnecessary to deter police resistance to recording requirements because the
virtues of the procedure will quickly become evident to police once they start
recording. Whether this is so is a subject of some
controversy, but even if it is true, deterring police overreaching is not the sole goal of the recording
requirement. One of its primary goals is
to prevent conviction of the innocent and thus to promote conviction of the
guilty. Admitting an unreliable
confession creates precisely the risk of wrongful conviction that the Act seeks
to prevent. The case law summarized
above and ample psychological research demonstrate the grave risk of
unreliability of unrecorded confessions and the equally grave risk that jurors
are not well-equipped to spot such unreliability. See Richard
Ofshe & Richard A. Leo, The Decision
to Confess Falsely: Rational Choice and
Irrational Action, 74 Denv. L. Rev.
979, 1120‑22 (1997); Mark A. Godsey, Reliability
Lost, False Confessions Discovered, 10 Chapman
L. Rev. 623 (2007).
The only fully
effective remedy for an innocent person who has given an unreliable confession
is to exclude it as evidence entirely. But
the failure to record does not alone, of course, establish such unreliability
but rather turns on a case-specific judgment by the trial court. Accordingly, the Act leaves that judgment to
the trial court while making plain that it is a judgment that the court must
make and that the failure to record is a relevant factor in making this
judgment. Like Illinois, therefore, this
Act adopts exclusion of unreliable confessions as an option, albeit applying a
much softer version of the exclusionary rule than did Illinois.
B. Jury Instructions and Their Relative Efficacy
1.
The
Virtues of Instructions Where Videotaping Inexcusabily Fails to Occur
Thomas
Sullivan, one of the leading national advocates for electronic recording of
custodial interrogations, and his co-author, Andrew Vail, have strongly
endorsed cautionary jury instructions as a remedy for violation of recording
mandates. See Thomas P. Sullivan and
Andrew W. Vail, The Consequences of Law
Enforcement Officials’ Failure to Record Custodial Interviews as Required by Law,
99 J. CRIM. L. & CRIMINOLOGY 215 (2009). Sullivan and Vail argue
that fear of such instructions will provide a significant deterrent to law
enforcement violations of the provisions of mandatory recording acts. They
further argue that jury instructions will help to improve the reliability of
jury fact finding when the jury is faced with mere oral testimony rather than
having a verbatim recording of the entire custodial interrogation process. New
Jersey has followed just such an approach, declaring in its recording rule
that, “in the absence of electronic recordation required … [under this Rule],
the court shall, upon request of the defendant, provide the jury with a
cautionary instruction.” See New
Jersey Supreme Court Rule 3:17. Pursuant to that mandate, the New Jersey
judiciary has prepared fairly lengthy model jury charges as a remedy for
violation of the statute. Instructions are already an available remedy in
several other jurisdictions, including Montana, Nebraska, Wisconsin, and
Massachusetts, highlighting the urgency of getting the instructions right.
Sullivan
and Vail’s proposed instruction would caution jurors that the officers in the
case before them inexcusably failed to comply with a recording requirement—one
designed to give jurors a complete record of what occurred; that the jurors
consequently have been denied “the most reliable evidence as to what was said
and done by the participants” so that the jurors “cannot hear the exact words
used by the participants or the tone or inflection of their voices.” Id.
at 7. The proposed instruction would
conclude as follows: “Accordingly, as
you go about determining what occurred during the interview, you should give
special attention to whether you are satisfied that what was said and done has
been accurately reported by the participants, including testimony as to
statements attributed by law enforcement witnesses to the defendant.” Id.
Here
is a variant, prepared by this Act’s Drafting Committee, of their complete
instruction, which might serve as the basis for a model instruction:
State law required
that the interview of the defendant by law enforcement officers which took
place on [insert date] at [insert place] be electronically recorded, from
beginning to end. The purpose of this requirement is to ensure that you jurors
will have before you a complete, unaltered, and precise record of the
circumstances under which the interview was conducted, what was said, and what was done by each person present.
In
this case, the law enforcement officers
did not comply with that law. They did not make an electronic recording
of the interview of the defendant. [They made an electronic recording that did
not include the entire process of interviewing the defendant, from start to
finish.] The prosecution has not presented to the court a legally sufficient
justification for not complying with that
law. Instead of an electronic recording, you have been presented with
testimony about what took place
during the custodial interrogation, based upon the recollections of the law enforcement officers [and the defendant]. [Instead
of a complete record of the entire process of interviewing the defendant, they
have left you with only a partial record of the events.]
Therefore,
I must give you the following special instructions about your consideration of
the evidence concerning that interview.
Because
the interview was not electronically recorded as required by our law, you have
not been provided the most reliable evidence about what was said and what
was done by the participants. You cannot hear the exact words used by
the participants, or the tone or inflection of their voices. [Because the
interview process was not electronically recorded in its entirety as required
by law, you have not been provided with the most reliable and complete evidence
of what was said and done by the participants].
Accordingly,
as you go about determining what occurred during the interview, you should give
special attention to whether you are satisfied that testimony of the participants
accurately [and completely] reported what was said and what was done, including testimony about statements attributed by law
enforcement witnesses to the defendant. It is for you, the jury, to decide
whether the statement was made and to determine what weight, if any, to give to
the statement.
These proposed
model instructions combine elements of Sullivan’s proposed federal instructions
and of his later-proposed and similar state-level instructions, with
modifications made to adjust the instructions to a uniform act recommended for
adoption at the state level.
Sullivan and
Vail at least implicitly argue that many jurisdictions might give cursory
cautionary instructions without a fairly detailed model. Specifically, many
courts might give standard instructions about treating a confession with
caution without specifying the reasons why jurors should do so in a way that
will enable the jurors truly to understand the dangers to reliability created
by the failure to record. There is also an argument to be made that more
detailed instructions explaining precisely why caution is needed may more
effectively improve the jury’s ability fairly to assess the evidence given the
powerful impact that confessions have on juries See Richard A. Leo and Steven Z. Drizin, The Three Errors: Pathways to Wrongful Conviction, in POLICE INTERROGATIONS
AND FALSE
CONFESSIONS: CURRENT RESEARCH, PRACTICE, AND
POLICY RECOMMENDATIONS
21, 27 (G. Daniel Lassiter and Christian A. Meissner ed.s 2010) (“People find
detailed, vivid, and plausible confessions to be persuasive evidence of guilt,
even when they turn out to be false.”). Given such an impact, there may be a
risk that brief jury instructions will be ignored or have little effect,
particularly given the often weak or perverse effects of jury instructions in
many contexts (see the more detailed discussion of this last point below). That
reason is likely why Sullivan and Vail counsel providing a fairly lengthy standard
instruction in the recording statute itself. Sullivan has been more explicit on
this point in drafting a model federal statute that includes standard jury
instructions on the ill consequences of the unexcused failure to record. Thomas
P. Sullivan, Recording Federal Custodial
Interviews, 45 AM. CRIM. L. REV. 1297 (2008). On the other hand, the
length of this sample instruction is unusual in comparison to many sorts of
common instructions, and some observers may fear that a lengthy instruction
will lead jurors to give undue weight
to the failure to record by over-emphasizing it or, alternatively, that a
lengthy instruction may backfire, either confusing jurors or further impressing
in their mind the fact that a confession was made rather than that it was
inexcusably unrecorded (if there were a recognized excuse, no jury instruction
would be given).
The Act, in
subsection 13(b), leaves trial judges ample discretion in crafting instructions
meeting the needs of each individual case. Consequently, the Act mandates only that
remedial instructions be given, leaving the details and length of those
instructions to the trial court. Nevertheless, the sample instructions provided
here may help to inform trial judges’ decisions on this question.
2.
The
Limitations of Sole Reliance on Instructions as a Remedy
Nevertheless,
it is important to explain why such instructions will not suffice as a sole
remedy. Notably, there is no empirical data on whether the availability of jury
instructions will be an adequate deterrent to violations of recording mandates.
Opinions differ on the point, raising cause for concern were such instructions
to be the sole available judicial remedy. Furthermore, jury instructions will
also be unavailable in bench trials.
More
specifically, research has shown that jurors are not good at separating true
from false confessions—in fact do no better than chance—but do improve their
ability to judge confession accuracy when the entire interrogation process is
videotaped and proper camera angles are used, that is, angles not focusing
solely on the suspect. See Leo and Drizin, supra, at 25 (“[F]alse
confessors whose cases are not dismissed pretrial will be convicted (by plea
bargain or jury trial) 78% to 85% of the time, even though they are completely
innocent.”); G. Daniel Lassiter, Lezlee J. Ware, Matthew J. Goldberg, and Jennifer
J. Ratcliff, Videotaping Custodial
Interrogations: Toward a Scientifically Based Policy, in POLICE INTERROGATIONS
AND FALSE CONFESSIONS: CURRENT RESEARCH, PRACTICE,
AND POLICY RECOMMENDATIONS 143, 143-57 (G. Daniel Lassiter
and Christian A. Meissner ed.s 2010) (collecting research and concluding that
jurors are best at differentiating true from false confessions when the camera
focuses solely on the interrogator, second best when it focuses equally on the
interrogator and the suspect, but suspect-focus camera angles alone “appears to
actually diminish the capability of decision makers to arrive at objectively
correct assessments.”). Jury instructions alone are thus unlikely to improve
jurors’ accuracy where they are denied recordings of the entire interrogation
process. Moreover, where there is no
excuse for the police failure to record, there seems little justification for
ignoring this risk to the innocent.
Ample
social science concerning wrongful convictions in other areas (albeit analogous
ones) than custodial interrogations also supports the conclusion that jury
instructions will do too little to improve jurors’ ability accurately to assess
credibility and correctly to determine whether a confession was true or voluntary. (The social science supporting the arguments
made in this paragraph is concisely summarized at Andrew E. Taslitz, Memorandum
to Drafting Committee on Electronic Recordation of Custodial
Interrogations, Social Science
Memorandum on the Impact of Cautionary Jury Instructions Concerning the
Unexcused Failure to Record the Entire Custodial Interrogation Process, October 8, 2008, posted
in pdf on the Uniform Law Commission Website). The effect of
instructions on jurors varies with the subject matter of the instruction, and
some can be modestly effective. See id. Yet,
overall, instructions are frequently either ineffective in changing jurors’
reasoning or have unintended effects. See id. Research examining jury
instructions in the most thoroughly-examined cause of wrongful convictions,
namely, unreliable eyewitness identification procedures, has particularly shown
cautionary instructions to be of little, if any, help to jurors in making good
judgments about whether the police had the right man. See id. 6-7.
This
risk is indeed no minor matter, for innocence concerns were among the primary
forces motivating the movement for electronic recording in the first place, and
errors can result in an innocent person being sentenced to the death penalty or
to life in prison—errors hard to correct where confessions rather than DNA are
the primary evidence offered. These
worries are important, therefore, even if it is correct that violations of
recording mandates will be relatively rare.
In other words, deterrence is not the only function to be served by an
exclusionary rule in this context.
Indeed, critics of the exclusionary rule, including those on the Court,
have focused their ire on the rule’s application to Fourth Amendment violations
while generally embracing the rule’s wisdom where the reliability of fact
finding is at stake. See Andrew E. Taslitz, Temporal
Adversarialism, Criminal Justice, and the Rehnquist Court: the Sluggish Life of Political Factfinding,
94 GEO. L.J. 1589 (2006).
The point of
stressing the limitations of cautionary jury instructions as a remedy is not to
deny that they may be likely to have some, perhaps substantial, deterrent value
or that they may modestly improve jury reasoning. Logic suggests that
cautionary instructions should help at least somewhat on both these scores.
There is indeed a significant likelihood that they will do both. Furthermore,
cautionary instructions are a modest and traditional judicial remedy. Moreover,
a court may conclude that, though suppression is not justified, some remedy is
needed to reduce the risk of error – of convicting an innocent man – given the
absence of the best evidence of the confession’s voluntariness and reliability,
namely, the absence of electronic recording. The availability of jury instructions
should also ally (unjustified) concerns that suppression may prove to be too
“draconian” because suppression will not be the only remedial option available
to the trial judge.
But the
limitations of cautionary instructions counsel against relying on them too
heavily as the sole judicial remedy. For example, analogous data suggests that
jury instructions’ impact can be weak or perverse, at least if not given in
conjunction with other remedies, such as expert testimony alerting jurors to
the reliability problems with certain evidence and to jurors’ own reasoning
problems that may interfere with their ability to give evidence its appropriate
weight. Cf. ANDREW E. TASLITZ, RAPE AND THE CULTURE
OF THE COURTROOM 131-33 (1999)
(defending the use of such experts concerning rape victim behavior and jury
reasoning processes in rape cases); Jennifer Devenport, Christopher D.
Kimbrough, and Brian L. Cutler, Effectiveness
of Traditional Safeguards Against Erroneous Conviction Arising From Mistaken
Eyewitness Identification, in EXPERT
TESTIMONY ON THE PSYCHOLOGY OF EYEWITNESS IDENTIFICATION 51, 61-64 (Brian L. Cutler ed.
2009) (concluding that jury instructions currently relied upon by the courts
concerning eyewitness identification accuracy “either have no effect or enhance
juror skepticism rather than juror sensitization to eyewitnessing and
identification conditions,” leading the authors to suggest that “the courts may
benefit from a set of cautionary instructions that more closely resemble expert
psychological testimony,” though the authors concede that expert testimony in
the eyewitness area might, in the view of some commentators, itself raise
different problems). The case for the admissibility of expert testimony in the
area of custodial interrogations is even stronger, however, than the case for
using social science experts in these analogous areas. See RICHARD A. LEO, POLICE
INTERROGATION AND AMERICAN JUSTICE
314-16 (2009) (arguing that a “substantial and widely accepted body of
scientific research” supports using experts on the factors affecting confession
accuracy at trial and that such social scientist testimony is needed because
traditional safeguards, including cautionary jury instructions, “are not
sufficient to safeguard individuals against the likelihood of wrongful
convictions based on unreliable confession evidence”); Solomon M. Fulero, Tales from the Front: Expert Testimony on
the Psychology of Interrogations and Confessions Revisited, in POLICE INTERROGATIONS
AND FALSE
CONFESSIONS: CURRENT RESEARCH, PRACTICE, AND
POLICY RECOMMENDATIONS
211, 211-22 (G. Daniel Lassiter and Christian A. Meissner ed.s 2010) (arguing
that such expert testimony is scientifically valid and reliable, useful to
juries, and admissible under existing evidence rules governing experts). Furthermore, in some cases the
reliability of the confession may be so in doubt, and the jury’s ability
adequately to grasp that point so insufficient, that suppression of the
confession in its entirety is required to protect against the risk of wrongly
convicting the innocent. This circumstance might be sufficiently
rare that suppression should neither be routine nor presumptive. Nevertheless,
its consequences when it does occur are sufficiently grave that this Committee
has incorporated into this Act a provision permitting trial judges to take into
account as one factor in deciding suppression motions the risks that
confessions obtained in violation of this Act will be more likely to be
involuntary or unreliable. Cf. LEO, supra,
at 286-91 (arguing for suppression of confessions where the risk of their
inaccuracy is unacceptably high).
SECTION 14. HANDLING AND
PRESERVATION OF ELECTRONIC RECORDING. Each law enforcement officer agency shall
establish and enforce procedures to ensure that the electronic recording of any
or all of a custodial interrogation is identified, accessible, and preserved in
the manner required by [cite statutes, court rules, or other state authority
generally governing the manner in which evidence in criminal cases is to be
preserved].
Comment
Section 14
requires each law enforcement agency to establish procedures to ensure that
electronic recordings of custodial interrogations are properly identified and
accessible for later trial and pretrial use by law enforcement, defense
counsel, prosecutors, and the judiciary. Section 14 further requires that the
recording be preserved in accordance with any state law generally governing the
manner in which, and length of time in which, evidence in criminal cases is
generally treated.
(a) [Each law
enforcement agency in this state] [insert name of the appropriate state
authority] [insert name of the state agency charged with monitoring law
enforcement’s compliance with this act] shall adopt and enforce rules
to implement this [act].
(b)
The rules adopted under subsection (a)
must address the following topics:
(1) the manner in which an electronic recording of
a custodial interrogations must be made;
(2) the collection and review of electronic recording data, or the absence
thereof, by superiors within the law
enforcement agency;
(3)
the assignment of supervisory responsibilities and a chain of command
to promote internal accountability;
(4)
a process for explaining noncompliance with procedures and imposing administrative sanctions for
failures to comply that are not justified;
(5)
a supervisory system expressly imposing
on specific individuals a duty to
ensure adequate staffing,
education, training, and material resources to implement this [act]; [and]
(6)
a process for monitoring the chain of custody of electronic
recordings of custodial interrogations[.][;
and]
[(7)
insert other topic]
[(c)
The
rules adopted under subsection (a) for video recording must contain standards for the angle,
focus, and field of vision of a
recording device which reasonably promote accurate recording of a custodial interrogation at a place of detention and reliable
assessment of its accuracy and completeness.]
[(d)
Each law enforcement agency shall adopt
and enforce rules providing for administrative discipline of a law enforcement
officer found by a court or a supervisor of the agency to have violated the
terms of this [act]. [The rules must provide a range of disciplinary sanctions
reasonably designed to promote compliance with this [act].]]
Legislative Note: Subsection (a) offers three
bracketed choices. The first choice requires each local and state law
enforcement agency to draft its own rules. The second choice leaves it to a
single state authority to draft rules to govern all state and local law
enforcement agencies, though that single state authority is assigned no
obligations relevant to this Act other than drafting the rules. The third
choice assigns the rule-drafting task to a new or existing agency that is not
assigned an additional responsibility, that is, monitoring all state and local
law enforcement agencies’ compliance with the terms of this Act. The third choice thus differs from the
second in that the specified agency would have both rule-drafting and
Act-implementation monitoring responsibilities, but the intention would still
be that that agency would draft rules meant to govern all state and local law
enforcement. Subsection (b)(7) is bracketed, applying if a jurisdiction chooses
to add to the topics that the rules discussed in subsection (b) must address.
Subsection (c) is necessary only in a jurisdiction that requires both audio and
video recording under subsection 3 (a). In collective bargaining states, subsection
(d) would not apply. Instead, the matter would be controlled by collective
bargaining agreements. Thus subsection (d) is bracketed.
A.
Monitoring
and Guiding Police Performance
1.
The
Need for Rules Designed to Implement This Act
Building
into a statute some means of monitoring police performance is highly
desirable. Ample empirical literature
demonstrates that transparency and accountability improve police performance. See generally DAVID A. HARRIS, GOOD COPS:
THE CASE
FOR PREVENTIVE POLICING (2005). At its best, these
mechanisms function both internally—enabling police administrators to monitor
their line officers’ efforts—and externally, enabling outside political bodies
and the citizenry more generally to provide further layers of review. Cf. Andrew
E. Taslitz, Eyewitness Identification, Democratic Deliberation, and the
Politics of Science, 4 CARDOZO
J. PUB. L., POL’Y, & ETHICS 271 (2006) (explaining the importance of
internal/external review processes, albeit in another context). Furthermore,
systematic data collection improves law enforcement’s ability to see the big
picture, enhancing the quality of its services over time and highlighting areas
in which further internal regulation or legislative control may be necessary.
Regulations also provide clear guidance to line officers charged with
implementing the provisions of this Act, anticipating potentially problematic
situations, reducing transition costs, and improving police efficacy and
efficiency. It is for similar reasons that subsection 14(a) requires adoption
and enforcement of rules designed to implement this Act.
Washington,
D.C.’s statute provides that police “may” adopt an implementing general
order. The police have done just that,
by adopting a general order requiring commanders or superintendents of
detectives’ divisions to approve requests for deviations from standard
recording procedures; ensure that adequate manpower and material resources for
recording are made available; ensure that prosecution requests for original and
backup recordings are timely met; and compile statistics that include the
number of custodial interrogations conducted, the number required to be
recorded, the subset of these not recorded, the reasons for not doing so, and
the sanctions imposed for failing to record when required. Commanders and superintendents of detectives’
divisions must also forward the compiled statistics to the Assistant Chief of
the Office of Professional Responsibility by a specified date each month;
ensure Detective Unit maintenance of an electronic recordings logbook
containing detailed information and documenting a chain of custody; and ensure
that all officers are aware of and comply with the general order. That order further requires the Assistant
Chief of the Office of Professional Responsibility to submit annually to the
Chief of Police a report of relevant statistics that includes, but is not
limited to, the data categories compiled by commanders. A model statute need not be as detailed as an
implementing police general order, but the D.C. order reflects some basic
requirements that a sound statute should contain, including:
1. mandates for detailed
data collection within, and review by superiors within, each police department;
2. clear, specific
assignments of supervisory responsibilities to specific individuals and a clear
chain of command to promote internal accountability;
3. a mandated system of
explanation for procedural deviations and administrative sanctions for those
that are not justified;
4. a mandated supervisory
system expressly imposing on specific individuals a duty of ensuring adequate
manpower, education, and material resources to do the job; and
5. a mandated system for
monitoring the chain of custody and responding to prosecutor evidence and
informational requests to ensure responsiveness to the needs of the judicial
branch, and to translate police action
into reliable evidence ready for efficient use by the courts and by lawyers in
both trial and pre-trial proceedings.
More generally, D.C.’s approach
suggests a statutory mandate for police to draft detailed internal regulations
for implementing general statutory requirements. Subsection 14(a) of this Act
accordingly outlines the minimum important subjects to be included in police
regulations but leaves those details to other entities. The Act offers states
three bracketed options concerning who should draft those details: “[e]ach law
enforcement agency in [the] state”; an “appropriate state authority” to be
identified by name in the state’s version of this Act; or the “state agency charged with monitoring
law enforcement’s compliance with this Act.” The first option leaves drafting
to local law enforcement, the second to an existing state agency without otherwise
substantially changing its responsibilities, the third to an existing or new
state agency where the state chooses to identify a specific state-level entity
charged with monitoring state and local law enforcement’s compliance with the
Act. There are scores of existing model regulations from police departments
already mandated to, or voluntarily choosing to, record upon which drafting
entities may draw for models. See Police
Department Regulations: Custodial Interrogation (unpublished looseleaf
collection of all such regulations, collected by, and available from, Thomas P.
Sullivan or Andrew W. Vail, attorneys, Chicago, Illinois).
Although the
District of Columbia’s statute merely authorized police to adopt implementing
regulations, it is worth noting that Maine, for example, by statute requires all law enforcement agencies
indeed to adopt written policies concerning electronic recording procedures and
for the preservation of investigative notes and records for all serious
crimes. Furthermore, the chief administrative
officer of each agency must certify to the Board of Trustees of the Maine
Criminal Justice Academy of the State Department of Public Safety that attempts
were made to obtain public comment during the formulation of these
policies. The statute also requires this
same Board, by a specified date, to establish minimum standards for each law
enforcement policy. The chief
administrative officer for each law enforcement agency must likewise certify to
the Board by a specified date that the agency has adopted written policies
consistent with the Board’s standards and, by a second specified date,
certifying that the agency has provided orientation and training for its
members concerning these policies. The
Board must also review the minimum standards annually to determine whether
changes are needed as identified by critiquing actual events or reviewing new
enforcement practices demonstrated to reduce crime, increase officer safety, or
increase public safety. The chief
administrative officer of a municipal, county, or state law enforcement agency
must further certify to the Board by a specified date that the agency has
adopted a written policy regarding procedures for dealing with freedom of
access requests and that he has designated a person trained to respond to such
requests—a system that can help to balance privacy concerns of interviewees
facing potential trials with the need for public access and evaluation.
Maine’s
Board, pursuant to this statute, indeed drafted a requirement of a written
policy, including at least certain minimum subject matters. More specifically, the Board required written
policies to address at least thirteen specific items, including:
a. recognizing the
importance of electronic recording;
b. defining it in a
particular way;
c. defining custodial
interrogation in a particular way;
d. doing the same in
defining “place of detention” and “serious crimes”;
e. reciting procedures for
preserving notes, records, and recordings until all appeals are exhausted or
the statute of limitations has run;
f. recognizing a specified
list of exceptions to the recording requirement;
g. outlining procedures for
using interpreters where there is a need;
h. mandating officer
familiarity with the procedures, the mechanics of equipment operation, and any
relevant case law;
i. mandating the
availability and maintenance of recording devices and equipment;
j. outlining a procedure
for the control and disposition of recordings; and
k. outlining procedures for
complying with discovery requests for recordings, notes, or records.
The
Maine Chiefs of Police Association further drafted a generic advisory model
policy to aid local agencies in drafting their own individual policies to
comply with the statute’s and the Board’s mandates. That model policy included a statement
disclaiming its creating a higher legal standard of safety or care concerning
third party claims and insisting that the policy provides the basis only for
administrative sanctions by the individual agency or the Board.
Again,
this Act leaves details to each state, but the Maine approach is offered as an
example of a state approach far more detailed to that specified in this Act but
that may be useful in generating ideas about what details and mechanisms for
creating and implementing them a particular state might choose to follow.
2.
Delegation Concerns
Many
state courts will invalidate statutes that delegate rule-making power without
“adequate” guidance to regulatory agencies. But it is unlikely that this
provision will prove troublesome in this regard. Illinois’ requirements offer a
helpful example. In Illinois, a legislative delegation of regulatory authority
will be valid if the legislature meets three conditions: first, it identifies
the persons and activities subject to regulation; second, it identifies the
harm sought to be prevented; and third, it identifies the general means
intended to be available to the administrator to prevent the identified harm. See Stofer v. Motor Vehicle Cas. Co., 68 Ill. 2d
361, 12 Ill. Dec. 168, 369 N.E.2d 875 (1977). The statute must also
create “intelligible standards” to guide the agency in the execution of its
delegated power, but these criteria need not be so narrow as to govern every
detail necessary in the execution of the delegated power. Forest Preserve
Dist. of Du Page County v. Brown Family Trust, 323 Ill. App. 3d 686 (2d Dist.
2001).
This
Act, read as a whole, clearly identifies law enforcement agencies and officers
as the “persons” regulated by the Act, while further identifying the “activity
subject to regulation” as custodial interrogation as defined in Miranda, a definition with which law
enforcement have been familiar for over four decades. The statute further clearly
declares that this activity is regulated in one specific way: it must be
electronically recorded, a term defined in the text of the Act. Similarly, the
Act clearly aims at preventing three sorts of harms: the creation of
involuntary confessions or of false or unreliable ones and the maximization of
the factfinder’s ability to identify involuntary, false, or unreliable
confessions. Moreover, the means for law enforcement agencies to carry out
their responsibilities are identified in numerous provisions: those describing
when recording is necessary and when it is not (the various exceptions), those
identifying what paperwork must be prepared and when, those addressing remedies
that include internal discipline being but a few of the provisions offering detailed
guidance. Finally, for similar reasons, the Act provides easily intelligible
standards to guide the law enforcement agency, for it will know with some
specificity when, where, and how it must tell officers to record. It will do so, however, with specificity sufficient to offer law enforcement agencies
guidance but not so detailed as to straightjacket their choice of
specifics. The delegation doctrine
should, therefore not be cause for concern.
C. Numbers of Cameras and Angle
Most
statutes and regulations ignore these details.
But North Carolina
recognizes their importance, declaring that, if a visual record is made, “the
camera recording the interrogation must be placed so that the camera films both
the interrogator and the suspect.”
Thomas Sullivan, in his latest proposed statute, also addresses this
matter, declaring that, “If a visual recording is made, the camera or cameras
shall be simultaneously focused on both the law enforcement interviewer and the
suspect.” The Innocence Project of Cardozo University Law School, in its
proposed model statute, makes a similar recommendation.
D. Internal Discipline
Violations
of recording mandates that do not produce confessions or that produce
confessions that seem obviously to violate constitutional or other
admissibility requirements and thus that are not offered as evidence at a
criminal trial cannot be remedied by the criminal justice system. Yet no civil
liability may be available either if the law enforcement agency has adopted and
enforced reasonable regulations concerning recording, and often potential
litigants will not file suit because of minimal recoverable damages. In such
cases, the only effective deterrent to an individual officer’s future mistakes
will be administrative discipline. Moreover, while court remedies may be
uncertain, vigorously enforced administrative sanctions are relatively certain
and thus likely to deter future error. Furthermore, the mere knowledge that
such sanctions may be available can lead officers to act with great care and
deliberation concerning recording procedures. For these reasons, section 14(d)
mandates that law enforcement agencies adopt rules imposing graded system of
sanctions on individual officers, sanctions reasonably designed to promote
compliance with this Act. The subsection is bracketed, however, because in
collective bargaining states, the subject matter of subsection (d) would be
controlled by collective bargaining agreements.
SECTION 16. LIMITATION OF
ACTIONS.
(a)
A
law enforcement agency [in this state] that has adopted and enforced rules reasonably designed to ensure
compliance with the terms of this [act]
is not subject to civil liability for damages arising from a violation
of this [act].
(b)
The only sanction that may be imposed on a law enforcement officer for
failure to comply with Section 3(b)
[and (d)] is administrative discipline.
(c)
This [act] does not create a cause of
action against a law enforcement officer.
Comment
Section
16 addresses civil liability. Subsection 16(c) unequivocally states that this
Act does not by its terms create a cause of action against an individual law
enforcement officer. Subsection (b) adds further clarity by declaring that the
only sanction that may be imposed upon an individual officer who violates this
Act is administrative discipline, though it does not mandate such discipline.
However, the Act recognizes the possibility, without mandating it, that courts
or legislatures in individual states might find under legal principles other
than those stated in this act a civil cause of action against a law enforcement
agency that violates the provisions of this Act. Subsection (a) gives law
enforcement agencies a safe harbor against such liability for agencies that
adopt and enforce rules reasonably
designed to ensure compliance with this Act. Subsection 16(a) is thus closely
linked with Section 15: a law enforcement agency adopting and enforcing the
rules provided for in section 15 will be protected from civil liability should
individual officers nevertheless violate the Act despite the reasonable efforts
of the law enforcement agency.
The major justification for this provision is that it will provide an
incentive to law enforcement agencies to vigorously implement the mandates of
this Act, including providing adequate resources to get the job done. If a law
enforcement agency creates and enforces procedures designed to, and likely to,
result in vigorous enforcement of this Act, there seems little justification in
exposing it to civil liability for the occasional error by an individual
officer. At the same time, however, because the primary responsibility and
power to ensure compliance with this Act rests with the law enforcement agencies,
little is gained in terms of fairness or deterrence by exposing individual
officers to civil liability.
One helpful analogy
occurs in the federal law concerning Title VII hostile environment sexual
harassment cases. An employer is vicariously liable for its supervisory
employees’ actions in such cases but can raise as an affirmative defense that
the employer both exercised reasonable care to prevent and correct any sexually
harassing behavior and that the plaintiff employee failed to take advantage of
any preventative or corrective opportunities provided by the employer or to
avoid harm otherwise. E.
Jacob Lindstrom, All Carrots And No Sticks: Moving Beyond The
Misapplication Of Burlington Industries, Inc. V. Ellerth, 21 HASTINGS WOMEN'S L.J. 111 (2010) (summarizing the law, though criticizing
lower courts for giving it an overly expansive application). The result of this defense has been for many employers to adopt and
implement anti-harassment policies. See Jonathan D. Hoag, Textual
Harassment Trends Particularly Troubling for Illinois Employees, 22 DCBA Brief 14 (2010).
Critics have charged that courts are often too deferential to employers
in upholding defenses based on weak policies – policies unlikely to correct bad
behavior and in fact not doing so. See Lindstrom, supra. But even many critics agree that helpful policies can and have been
designed by employers eager to take advantage of the reasonable care defense. See Joanna Grossman, Sexual Harassment in the Workplace: Do Employers Efforts Truly
Prevent Harassment, Or Just Prevent Liability?, http://writ.news.findlaw.com/grossman/20020507.html
(posted May 7, 2002) (praising Mitsubishi’s recent policies for managing to
“change its workplace culture to stem the proliferation of harassment.”). Furthermore,
there is significant evidence that effective training programs are the most
valuable mechanism for improving compliance, and these policies have sometimes
promoted such programs. See id. (citing social science research
demonstrating the effectiveness of certain anti-sexual-harassment training
programs in actually reducing sexual harassment). These programs are likely to
be most effective when they also contain an individualized component addressing
the training needs of particular employees. See id. At the same time, critics emphasize the need for employers to track
their programs and tinker with them to improve their actual effectiveness,
based upon performance, in reducing sexual harassment. See id. Such tracking is needed to avoid prevention programs becoming more
publicity stunts than serious efforts to resolve the harassment problem. See id. These are reasons enough to provide a similar defense to law
enforcement agencies under this Act. Indeed, there is substantial evidence that
properly designed rules, including training programs, detailed guidance on
procedures, and effective internal sanctioning measures are significantly
effective in improving police performance in a range of areas. See generally DAVID HARRIS, GOOD COPS (2005) (articulating an extended defense of this point); SAMUEL L. WALKER, THE NEW WORLD
OF POLICE ACCOUNTABILITY (2005) (similar). Proper program design
is key; that is why Section 14 of this Act – seeking to learn lessons from the
experience under Title VII – stresses that rules address training and
education. It is also why the rules mandated by that section require a process
for explaining noncompliance. Ample social science demonstrates that the mere
knowledge that one must explain his or her actions improves performance,
including that of the police. See Andrew E. Taslitz, Police Are
People Too: Cognitive Obstacles to, and Opportunities for, Police Getting the
Individualized Suspicion Judgment Right, __ OHIO ST. J. CRIM. L. __ (forthcoming 2010). Moreover, the
availability of other potential remedies – not simply a defense against civil
liability – provided for in this Act should provide an even greater incentive
for creating sound regulatory policies and zealously enforcing them than is
true in the case of sexual harassment.
Some commentators have
indeed argued that the United States Supreme Court has, in its constitutional
criminal procedure jurisprudence, been moving toward recognizing a “reasonable
care” defense to suppression motions based on constitutional violations,
perhaps doing so as well in civil actions for such violations. See Andrew E. Taslitz, The Expressive Fourth Amendment:
Rethinking the Good Faith Exception to the Exclusionary Rule, 76 MISS. L.J. 483 (2006). That movement is likewise based on an
implicit analogy to the law of entity liability in the area of sexual
harassment. Although this Act may not be constitutionally mandated, the logic
of improving deterrence while avoiding penalties where there is minimal entity
or individual culpability makes much sense and is followed here.
SECTION 17.
SELF-AUTHENTICATION.
(a)
In any pretrial or post-trial
proceeding, an electronic recording of a custodial interrogation is self
authenticating if it is accompanied by a certificate of authenticity sworn
under oath or affirmation by an
appropriate law enforcement officer.
(b) This [act] does not limit the
right of a defendant under law other than this [act] to challenge the
authenticity of an electronic recording of a custodial interrogation.
Comment
Among the anticipated
efficiency benefits of electronic recording of custodial interrogations is that
it minimizes disputes over what in fact happened during the custodial
interrogation process. In many, perhaps most, instances, the recording “speaks
for itself.” There will be little that officers’ testimony can add.
Indeed, where there is no arguable ground for
suppression apparent from the recording, suppression motions become unlikely
and, if made, can be disposed of quickly. Lacking grounds for suppression, many
defendants will have a greater incentive to plead guilty and to do so at an
earlier stage of the prosecution than might otherwise be the case. Time, money,
and inconvenience are thus saved by police having less frequent need to
testify.
Even where suppression motions are made, the
only likely grounds for the motion would be that: (1) what is shown in the
recording constitutes a violation of some statutory or constitutional provision;
(2) the recording is inaccurate, not showing what really happened, thus not
being properly authenticated; or (3) the
recording is not complete, omitting important portions of the custodial
interrogation process. Ground number one implicitly concedes the authenticity
of the recording, so there is no real need for officer testimony; placing the
burden of nevertheless proving
authentication on the state would therefore needlessly reduce cost-savings.
Ground number two is likely to arise rarely and to be a meritorious claim still
more rarely given various technological and procedural safeguards provided in
this Act. Accordingly, it may be
appropriate to place the burden of proving inauthenticity
on the defendant, though the Act ultimately leaves it to each individual’s
state’s law to determine how to treat challenges to the presumptive
self-authenticating nature of the electronic recording that is created by this
Act. Ground number three does not
challenge the accuracy of what the recording reveals but rather argues that it
does not reveal the whole picture, requiring further witness testimony
concerning what else happened. It therefore makes sense to presume the
authenticity of the electronic recording, but to allow the defendant to rebut
that presumption by evidence that it is flawed in an individual case. That is
precisely what Section 17 does.
Nor would a presumption of authenticity
likely raise federal Confrontation Clause concerns. See Melendez-Diaz v. United States, __ U.S. __ (2009) (suggesting
in dicta that a mere certification for use at trial of the authenticity of a
pre-existing document would not likely violate the Confrontation Clause).
Nevertheless, state constitutional equivalents to the federal Constitution’s
Confrontation Clause, and judicial interpretations of those state equivalents,
vary widely. It may therefore happen that in some, likely few, states Section
17 may be held inconsistent with a state constitution. In that event, 21 on
severability should preserve the effectiveness of the remainder of the Act.
Section 17 is divided into subsections (a)
and (b) to make clear the relationship between this section and other
provisions of state law governing the authenticity of evidence. Subsection (a)
of the Act renders the electronic recording self-authenticating. But should a
defendant have a good faith basis for nevertheless challenging that
authenticity under state laws other than this Act, subsection (b) permits the
defendant to do so under those laws.
(a)
This [act] does not create a
right of an individual being
interrogated to require electronic recording of the custodial interrogation.
(b) This [act] does not require preparation of a
transcript of an electronic recording of a custodial interrogation.
Comment
Section 18 declares that no right to
electronic recording is created by this Act. Vesting a “right” to recording in
the individual interrogated would create insuperable problems for crafting an
effective statute. For example, were a suspect to have such a right, he could
“waive” it, undermining many of the benefits of recording. Although this Act
creates an exception permitting non-recording where a suspect refuses to talk
if recorded, that exception recognizes a specific sort of necessity, one
granting police discretion whether to record. But the exception does not entitle the suspect to speak without
being recorded. Indeed, the whole tenor of the Act is to encourage recording
absent good reason to do otherwise.
Similarly, were there a right to recording,
it could not be done without the suspect’s knowledge. Law enforcement officers
have stressed the need to have the flexibility for covert recording to address
situations where they believe overt recording might lead the suspect to alter
what he has to say. Covert recording also reduces the likelihood that a suspect
will refuse to speak at all if recorded, a circumstance that, again, undermines
the Act’s goal of encouraging recording of crimes within the Act’s mandates, regardless of the desires of the suspect.
Recording benefits society as a whole through its efficiency gains,
improvements in fact-finding accuracy and assessment, and enhancement of police
training, among the other advantages discussed in the Prefatory Note. These
social benefits favor recording even if contrary to any individual’s wishes.
Miranda
v. Arizona, 384 U.S. 486
(1966), provides a helpful analogy.
The Fifth Amendment to the United States Constitution prohibits compelling
someone to be a witness against himself. Because the United States Supreme
Court concluded that custodial interrogations were “inherently” compelling, the
Court created two procedural safeguards to dispel compulsion: first, a
requirement of the presence of counsel during custodial interrogation; second,
a set of warnings to advise the suspect of that right and of his core Fifth
Amendment right to silence. However, the suspect’s only “right,” at most, is to
be free from compulsion while
interrogated. The suspect, therefore, has no right to Miranda warnings themselves. If he had such a right, he could sue
for not being warned, even if he was ultimately never interrogated and thus
never gave a statement. But that is not likely true. See United States v. Patane, 542 U.S. 630, 642 (2004) (plurality
opinion of Thomas, J.) (noting that a “mere failure to give Miranda warnings does not, by itself,
violate a suspect’s constitutional rights or even the Miranda rule”). Similarly, a defendant can waive his rights to
silence and to counsel during custodial interrogation, yet he is not entitled
to counsel during that waiver decision, and the courts readily find knowing,
voluntary, and intelligent waivers without counsel’s presence (were counsel
present, he or she would, absent the most unusual of circumstances, undoubtedly
advise his or her client not to talk or waive any rights whatsoever).
Miranda,
as later interpreted by the
Court, thus recognized that a procedural safeguard (Miranda) of a recognized right (the privilege against self-incrimination)
need not itself be a right. As applied here, that would mean that the
procedural safeguard of electronic recording, if that is how the recording
mandate is characterized – a mandate which some might view as protecting some
constitutional rights, such as the privilege against self-incrimination and the
due process protection against coerced statements, as well as serving other
purposes – need not itself be a constitutional right or indeed a right of any
kind. Yet a better way to view mandated electronic recording of custodial
interrogations is not as specifically protecting any constitutional right at
all. Rather, it is better understood as a code governing police procedures
concerning one police investigative technique: interrogation. The Act aims at
guiding the police to achieve a variety of societal benefits, not at protecting
the individual suspect’s interests, though the latter result may often obtain.
Of course, Miranda arguably gives a nod toward its creating a personal right
simply by allowing the defendant to waive Miranda’s
protections, thus perhaps suggesting that he is in control of that decision
because the rule is designed to work for his benefit. (That is not the only
possible interpretation; he might also simply be seen as the person with the
most incentive to act to promote enforcement of a rule that benefits society;
see below). To the extent that this argument might be accepted as a correct
statement of the Miranda Court’s
intentions, this Act disclaims any similar intentions here. Here, unlike this
more capacious interpretation of Miranda, the suspect cannot choose to waive
recording because recording is not his
right to waive.
Yet the Act does permit the defendant to seek
remedies for the Act’s violation. In this respect, he acts as a sort of private
Attorney General, his ability to seek remedies being deemed essential to
deterring violations of the Act and to minimizing the harms such violations do
to society. Another analogy, this time
to Fourth Amendment case law, sharpens the point.
The Fourth Amendment declares that the right
of the People to be free from unreasonable searches and seizures shall not be
infringed. One well-known remedy for violation of this right of the People is
the suppression of evidence obtained because of the violation. The defendant is
granted the authority to file a motion to suppress evidence, and should he win
that motion, he will of course benefit from it. But recently, in Herring v. United States, 129 S. Ct. 695 (2009), the Court unequivocally stated that “the exclusionary rule is not an individual right and
applies only where it ‘result[s] in appreciable deterrence.’ ” Id. at 700 (quoting in part Leon
v. United States, 468 U.S. 897,
909 (1984), itself quoting United States v.
Janis, 428 U.S. 433 (1976)). The
right was to be free from unreasonable searches and seizures. But the remedy
was one created for deterring violations of the substantive right. The remedy
was meant to apply when its social benefits for the People, not its private
benefits for the defendant, outweighed its costs to finding truth at trial.
Nevertheless, as a practical matter, the remedy would rarely, if ever, be
sought were the defendant not empowered to seek it and permitted to benefit
from it. So empowering him gives him the incentive to act on society’s behalf
by seeking a remedy that deters future violations of the People’s substantive
right.
With electronic recording, however, no
substantive constitutional right is involved in the first place. If a remedy
that a defendant is empowered to exercise to protect a substantive
constitutional right is nevertheless not itself a right, then surely a merely
statutory procedure governing an aspect of police investigations can likewise
empower a defendant to seek remedies for its violation without thereby vesting
in him a “right.” As in Herring, the
question is one of the balance of social costs and benefits, not the rights of
the accused.
SECTION 19.
UNIFORMITY OF APPLICATION AND CONSTRUCTION. In applying and
construing this uniform act,
consideration must be given to the need to promote uniformity of the law with
respect to its subject matter among states that enact it.
Comment
This section’s narrow purpose is to emphasize that
this is a uniform act and thus should, absent good reason, be interpreted
consistently with the interpretations given by other jurisdictions adopting the
Act and with the uniformity goals of the Uniform Law Commission and the
National Conference of Commissioners on Uniform State Laws.
SECTION 20.
RELATION TO ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT. This [act] modifies, limits, and supersedes
the federal Electronic Signatures in Global and National Commerce Act, 15
U.S.C. Section 7001, et seq., but does not modify, limit, or supersede Section
101(c) of that act, 15 U.S.C. Section
7001(c), or authorize electronic delivery of any of the notices described in Section
103(b) of that act, 15 U.S.C. Section
7003(b).
Comment
This is a standard provision of
uniform acts and needs no explanation.
SECTION
21. SEVERABILITY. If any provision of this [act] or its application to
any person or circumstance is held invalid, the invalidity does not affect
other provisions or applications of this [act] which can be given effect
without the invalid provision or application, and to this end the provisions of
this [act] are severable.]
Legislative
Note: Include this
section only if this state lacks a general severability statute or a decision
by the highest court of this state stating a general rule of severability.
Comment
This
section is designed to make clear the state legislature’s intention that the
remaining provisions of the Act continue in effect even if a court should hold
any single provision or small set of provisions unconstitutional.
SECTION 22.
REPEALS. The following are repealed: [insert title and
section numbers].
Comment
Section 22 serves as a reminder
to legislators in each jurisdiction adopting the Uniform Act to repeal with
specificity any other applicable statutes that might be inconsistent with the
terms of this Act.
SECTION 23.
EFFECTIVE DATE. This [act]
takes effect . . . .
Section 23
simply requires the recitation of a specific date on which this Act shall take
effect.
