The federal and state constitutions provide a series of protections for individuals when they interact with law enforcement officers. Those protections include the right to remain silent and the right to counsel during a custodial interrogation. A custodial interrogation generally means any non-routine questioning, actions, or words by a law enforcement officer designed to elicit an incriminating response from a person after the person has been taken into custody or otherwise been deprived the freedom of action in any significant way.
Prior to engaging in a custodial interrogation of a person, an officer must provide a Miranda warning to advise the person of the person's constitutional rights and ability to invoke those rights at any time during the interrogation. A person may waive those rights, provided the waiver is voluntary, knowing, and intelligent. A waiver is voluntary if it is the product of a free and deliberate choice rather than intimidation, coercion, or deception. A waiver is knowing and intelligent if it is made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.
If an officer fails to give a person an effective Miranda warning or fails to obtain a valid waiver prior to engaging in a custodial interrogation, a court may rule any incriminating statements made by the person during the interrogation inadmissible as evidence. Courts consider the totality of the circumstances in evaluating whether a waiver is valid.
The Uniform Law Commission (ULC) is a state-supported, nonpartisan, nonprofit organization that drafts and proposes specific statutory language that may be adopted by states. In 2010 the ULC drafted the Uniform Electronic Recordation of Custodial Interrogations Act, which requires law enforcement to electronically record the entirety of custodial interrogations.
Requirements for Electronic Recordings of Custodial Interrogations.
Law enforcement officers must electronically record custodial interrogations that occur at a place of detention if the interrogation is of a juvenile or related to a felony, unless an exception applies. Electronic recordings must include both audio and video.
An officer who conducts a custodial interrogation of a person at a place of detention without electronically recording it must, as soon as practicable, prepare a report that explains the reason for failing to record the interrogation and summarizes the interrogation process and the person's statements.
An officer who conducts a custodial interrogation of a person outside a place of detention must, as soon as practicable, prepare a report that explains the decision to interrogate outside a place of detention and summarizes the interrogation process and the person's statements.
Law enforcement agencies must establish and enforce procedures to ensure electronic recordings of custodial interrogations are identifiable, accessible, and preserved throughout the duration of any related criminal cases through final discharge. Law enforcement agencies must adopt and enforce rules that address the following:
Exceptions to Requirements for Electronic Recordings.
A prosecuting attorney may introduce a person's statement made during an unrecorded custodial interrogation of a juvenile or related to a felony if one of the following exceptions applies:
The prosecuting attorney relying on an exception to introduce the person's unrecorded statement must: (1) prove the exception applies by a preponderance of the evidence; and (2) serve the person with written notice of the intent to introduce the statement and identify the exception the attorney intends to rely upon. Unless a court finds that an exception applies, the court must consider the failure to electronically record all or part of a custodial interrogation in determining whether a statement is admissible. If the court admits a person's unrecorded statement into evidence, the court must, upon the person's request, give a cautionary instruction to the jury.