Written policies should set out the procedures for the recording of questioning, and for the disclosure and the retention of recorded evidence, and should provide that:
- (a) absent exigent circumstances, officers should record questioning of suspects in its entirety;
- (b) officers should record questioning of witnesses whenever feasible; and
- (c) in situations in which recording is not conducted, officers should document questioning, taking notes contemporaneously when possible, and memorializing conversations immediately thereafter.
a. Recording questioning of suspects. A suspect, or a person who police have reason to believe committed a crime being investigated, may be questioned in a manner that is inherently more accusatory and coercive than the manner in which police question a witness, or a person who police believe has information about a crime. Police may not know whether a person is a witness or also a suspect when they initiate questioning, and when in doubt, they should therefore err on the side of providing the procedures available to suspects. Unless exigent circumstances make it impossible, questioning of suspects should be recorded, in its entirety, including the provision and waiver of Miranda rights. This is essential to ensure a complete record and to prevent any doubt about what happened outside the record. Video recording is preferable. Exigent circumstances might include equipment failure combined with a pressing public-safety need to conduct questioning without delay. Recording may be less feasible in the field, though body-worn cameras may be available for recording purposes. Cost considerations also are relevant, both for police and legal actors, particularly if recording is extended beyond questioning of suspects.
Suspects should be told that they are being recorded. For some suspects who are not willing to speak if recorded, procedures should make available the option of not recording or using methods to redact video or audio to mask the identity of the witness. Policy and procedure should make available and define such special precautions to officers. Video cameras should be positioned so that the field of view includes both the officer and the person being questioned. Policies, at the agency level or preferably at the state level, should provide procedures for recording interrogations. Such policies should provide clear instructions for stopping and starting the recording. Governments should make resources available to agencies to purchase and maintain equipment needed to record the questioning of individuals.
b. Recording questioning of witnesses. Questioning of witnesses may sometimes be conducted in less formal settings, but such questioning should be recorded whenever feasible. Witnesses should be told that they are being recorded. As with suspects, there may witnesses who are not willing to speak if recorded and there may be safety and security concerns that counsel redacting video or audio to mask the identity of the witness. Policy and procedure should make available and define such special precautions to officers. When such a recording is not conducted, officers should take notes contemporaneously to provide as accurate and timely a record as possible of what transpired. If there is not a recording, any reporting or memorialization of those conversations similarly should occur immediately after questioning.
c. Disclosure. Agency policies should set out rules for disclosure of recordings to lawyers in discovery and for storage of archived records.
d. Retention. As discussed elsewhere in these Principles, clear policies should set out the rules for retention of recorded statements. Such evidence should be retained in a manner designed to be usable in the future, and should not be dependent on technology that is proprietary or likely to be obsolete in a way that might hamper future access.
A large body of high-profile exonerations of innocent persons have occurred in cases in which false confessions were obtained during interrogations that were not recorded. Absent a recording, officers asserted that suspects had volunteered “inside” information or details about a crime that only the culprit and the investigators had known. With the benefit of DNA testing, the public learned years later that the suspects were in fact innocent and that such details must have come from police. The problem is known as “confession contamination.” Brandon L. Garrett, Convicting the Innocent: Where Criminal Prosecutions Go Wrong 21-44 (2011).
Recording police questioning assists law-enforcement agencies and furthers the important goal of documenting evidence and ensuring the conviction of those who commit wrongdoing. Orin Kerr, Fourth Amendment Seizures of Computer Data, 119 Yale L. J. 700, 715 (2010) (“To create a record of the event, the officer might record a suspect’s confession.”).
Video recordings also empower judges to better assess the reliability of interrogation evidence, both to reject false claims of police overreaching and to examine potential wrongful convictions. Paul Cassell, Protecting the Innocent from False Confessions and Lost Confessions—and from Miranda, 88 J. Crim. L. & Criminology 497, 503 (Winter 1998); Richard A. Leo, Peter J. Neufeld, Steven A. Drizin & Andrew E. Taslitz, Promoting Accuracy in The Use of Confession Evidence: An Argument for Pretrial Reliability Assessments to Prevent Wrongful Convictions, 85 Temp. L. Rev. 759 (2013). Agencies have reported positive experiences with recording interrogations because it provides powerful documentation that interrogations are conducted professionally and non-coercively. Thomas P. Sullivan & Andrew W. Vail, The Consequences of Law Enforcement Officials’ Failure to Record Custodial Interviews as Required by Law, 99 J. Crim. L. & Criminol. 215, 220-221, 228-234 (2009). Fears that “few would allow themselves to be interviewed or interrogated” if it were known that interviews and interrogations are recorded have not been realized in jurisdictions in which recording has been introduced. Nathan J. Gordon & William L. Fleischer, Academy For Scientific Investigative Training, Effective Interviewing & Interrogation Techniques 209 (2d ed. 2006). That said, some flexibility with reluctant witnesses may be important. In addition, it may be increasingly feasible to conduct video recording in the field, as body-worn cameras are utilized more widely by agencies.
In response to the problem of false confessions, and to better document professionally conducted questioning, law-enforcement agencies themselves have shifted to requiring recordings. Saul M. Kassin et al., Police Interviewing and Interrogation: A Self-Report Survey of Police Practices and Beliefs, 31 Law & Hum. Behav. 381, 382 (2007). Most prominently, videotaping evidence during interviews and interrogations is increasingly ubiquitous. Doing so provides a complete record of who said what during an interrogation. Richard A. Leo, False Confessions: Causes, Consequences, and Implications, 37 J. Am. Acad. Psychiatry & L. 332, 337 (2009) (“Interrogators help create the false confession by pressuring the suspect to accept a particular account and by suggesting facts of the crime to him, thereby contaminating the suspect’s postadmission narrative . . . . If the entire interrogation is captured on audio or video recording, then it may be possible to trace, step by step, how and when the interrogator implied or suggested the correct answers for the suspect to incorporate into his postadmission narrative.”); see also Christopher Slobogin, Toward Taping, 1 Ohio St. J. Crim. L. 309, 311 (2003) (arguing that due process requires recording interrogations).
State statutes increasingly have required recording at least some categories of police questioning. Ann. Cal. Penal Code § 859.5 (West 2014) (requiring recordings for juveniles suspected of murder; exception for “exigent circumstances”); Conn. Gen. Stat. § 54-10 (West 2014) (requiring recordings for suspects of capital or class A or B felonies; statements made during or after unrecorded interrogations presumptively inadmissible); D.C. Code § 5-116.01 (2009) (requiring police to record all custodial investigations); 725 Ill. Comp. Stat. Ann. 5/103-2.1 (West 2009) (requiring police to record interrogations in all homicide cases); 705 Ill. Comp. Stat. Ann. 401.5(b-5) (expanding range of felonies for which recording is required for juvenile suspects); 725 Ill. Comp. Stat. Ann. 103-2.1(b-5) (expanding range of felonies for which recording is required for adult suspects); Me. Rev. Stat. Ann. tit. 25, § 2803-B (2009) (mandating recording “interviews of suspects in serious crimes”); Md. Code Ann., Crim. Proc. § 2-402 (2009) (requiring that law enforcement make “reasonable efforts” to record certain felony interrogations “whenever possible”); Mich. Comp. Laws Ann. §§ 763.8, 763.9 (West 2013) (requiring recordings for individuals suspected of major felonies); Mo. Rev. Stat. ch. 590.700 (Vernon 2013) (requiring recording for certain felonies); Mont. Code Ann. § 46-4-408 (West 2009) (requiring the recording of all custodial interrogations); Neb. Rev. Stat. Ann. §§ 29-4503, 29-4504 (West 2008) (requiring recording for interrogations relating to certain offenses and providing for jury instructions in the event of failure to do so); N.M. Stat. Ann. § 29-1-16 (West 2006) (requiring recordings of all custodial interrogations); N.C. Gen. Stat. § 15A-211 (2009) (requiring complete electronic recording of custodial interrogations in homicide cases); Ohio Rev. Code Ann. § 2933.81 (Baldwin 2010) (providing for a presumption of voluntariness for recorded statements made in response to interrogation); Or. Rev. Stat. § 133.400 (West 2009) (requiring the recording of interrogations of suspects for aggravated murder, crimes requiring imposition of a mandatory minimum sentence, or adult prosecution of juvenile offenders); Wis. Stat. Ann. §§ 968.073, 972.115 (West 2009) (requiring recording of felony interrogations and permitting jury instruction if interrogation not recorded); 13 V.S.A. § 5581 (2014) (requiring recording of entire interrogations in homicide and sexual-assault investigations, with a burden on prosecutors to show by a preponderance of the evidence that an exception justified failure to comply); see also Tex. Code Crim. Proc. Ann. art. 38.22, § 3 (Vernon 2007) (rendering unrecorded oral statements inadmissible unless the statements contain “assertions of facts or circumstances that are found to be true . . . .”).
Many state courts also have required recordings of police questioning. See Stephan v. State, 711 P.2d 1156, 1158 (Alaska 1985) (“[A]n unexcused failure to electronically record a custodial interrogation conducted in a place of detention violates a suspect’s right to due process. . . .”); State v. Hajtic, 724 N.W.2d 449, 456 (Iowa 2006) (“[E]lectronic recording, particularly videotaping, of custodial interrogations should be encouraged, and we take this opportunity to do so.”); State v. Scales, 518 N.W.2d 587, 592 (Minn. 1994) (“[A]ll questioning shall be electronically recorded where feasible and must be recorded when questioning occurs at a place of detention.”); State v. Cook, 847 A.2d 530, 547 (N.J. 2004) (“[W]e will establish a committee to study and make recommendations on the use of electronic recordation of custodial interrogations.”); In re Jerrell C.J., 699 N.W.2d 110, 123 (Wis. 2005) (“[W]e exercise our supervisory power to require that all custodial interrogation of juveniles in future cases be electronically recorded where feasible, and without exception when questioning occurs at a place of detention.”); see also Commonwealth v. DiGiambattista, 813 N.E.2d 516, 535 (Mass. 2004) (allowing defense to point out failure to record interrogation and calling unrecorded admissions “less reliable”); State v. Barnett, 789 A.2d 629, 663 (N.H. 2001) (“immediately following the valid waiver of a defendant’s Miranda rights, a tape recorded interrogation will not be admitted into evidence unless the statement is recorded in its entirety”); N.J. Supreme Court Rule 3:17 (following Cook, requiring electronic recording of custodial interrogations).
The recording of police questioning is required or recommended in many respected quarters. The U.S. Department of Justice has a memorandum setting out a policy for recording interrogations. See Memorandum from James M. Cole, Deputy Attorney Gen., Dep’t of Justice, Policy Concerning Electronic Recording of Statements 1 (May 12, 2014), http://archive.azcentral.com/ic/pdf/DOJ-policy-electronic-recording.pdf (creating a presumption that statements by individuals in federal custody, following arrest but prior to a first court appearance, will be electronically recorded). The International Association of Chiefs of Police recommends recording “all interviews involving major crimes” and prefers video recordings. International Association of Chiefs of Police, National Summit on Wrongful Convictions: Building a Systemic Approach to Prevent Wrongful Convictions 18 (August 2013); see also International Association of Chiefs of Police, Interviewing and Interrogating Juveniles Model Policy (May 2012); International Association of Chiefs of Police, Electronic Recording of Interrogations and Confessions Model Policy (February 2006). Scholars have advocated videotaping interrogations for some time. Andrew E. Taslitz, High Expectations and Some Wounded Hopes: The Policy and Politics of a Uniform Statute on Videotaping Custodial Interrogations, 7 Nw. J. L. & Soc. Pol’y 400, 427 (2012); Richard A. Leo et al., Bringing Reliability Back In: False Confessions and Legal Safeguards in the Twenty-First Century, 2006 Wis. L. Rev. 479, 520-535.
Although these Principles take no position on the admissibility of unrecorded statements, others have. The Alaska Supreme Court has ruled that judges should suppress unrecorded statements unless failure to record is excused by good cause. Stephan v. State, 711 P.2d 1156 (Alaska 1985). The Restatement of the Law, Children and the Law, calls for the exclusion of unrecorded statements in court. Restatement of the Law, Children and the Law § 14.23, Reporters’ Notes (Am. L. Inst., Tentative Draft No. 1, 2018) (citing authority including State v. Scales, 518 N.W.2d 587, 592-593 (Minn. 1994); In re Dionicia M., 791 N.W.2d 236, 241 (Wis. 2010); State v. Barnett, 789 A.2d 629 (N.H. 2001); Ind. R. Evid. 617; Wis. Stat. Ann. §§ 938.195, 938.31; Wis. Stat. Ann. §§ 968.073, 972.115; Tex. Fam. Code Ann. § 51.095; Mont. Code Ann. § 46-4-409(1); 725 Ill. Comp. Stat. Ann. 5/103-2.1 (same)). See also Thomas Sullivan, Video Recording of Custodial Interrogation: Everybody Wins, 95 J. Crim. L. & Criminol. 1127 (2005) (proposed model statute presumptively excluding unrecorded interrogation statements). Many state statutes also retain exceptions for exigent circumstances, such as for equipment malfunctions. See, e.g., N.C. Gen. Stat. Ann. § 15A-211(e); Vt. Stat. Ann. tit. 13, § 5585(c)(1); N.J. Ct. R. 3:17(b); Ind. R. Evid. 617(a); Wis. Stat. Ann. § 972.115(2)(a); Mont. Code Ann. § 46-4-409(1). Others create an exception for a spontaneous statement that could not be recorded in time. See, e.g., Ark. R. Crim. P. 4.7(b)(2); Conn. Gen. Stat. Ann. § 54-1o(e); 725 Ill. Comp. Stat. Ann. 5/103-2.1(b-10); Ind. R. Evid. 617(a); N.C. Gen. Stat. Ann. § 15A-211(g); N.J. Ct. R. 3:17(b); N.M. Stat. Ann. § 29-1-16(C); Mont. Code Ann. § 46-4-409(1); Mo. Ann. Stat. § 590.700(3); Or. Rev. Stat. Ann. § 133.400(2); Tex. Crim. Proc. Code Ann. art. 38.22, § 5; Wis. Stat. Ann. § 972.115(2)(a). Some statutes include a “good cause” provision like that stated in this Section. See, e.g., N.M. Stat. Ann. § 29-1-16(F); N.C. Gen. Stat. Ann. § 15A-211(e); Or. Rev. Stat. Ann. § 133.400(2); Wis. Stat. Ann. § 968.073(2). This Section also adopts the approach of Restatement of the Law, Children and the Law § 14.23 (Am. L. Inst., Tentative Draft No. 1, 2018), except that it extends the same rule to adult interrogations and not just to juvenile interrogations. Through their grant programs, governments should make resources available to agencies to purchase and maintain the equipment needed to record questioning of individuals. The equipment needed to record police questioning is increasingly inexpensive; however, resources also should be made available to facilitate the storage of data from recordings, as well as to reproduce those recordings in a form that is easily accessible to attorneys and judges.