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 nonroutine 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 if the interrogation is of a juvenile or related to a felony, unless an exception applies. Electronic recordings of qualifying interrogations that take place at a jail, police or sheriff's station, holding cell, or correctional or detention facility must include both audio and video. Electronic recordings of qualifying interrogations at any other place of detention must include audio, at minimum.
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 written or electronic 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 written or electronic 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 an unrecorded statement made during a custodial interrogation into evidence, the court must afford the defendant the opportunity to present to the jury the fact that the statement was not electronically recorded.
(In support) Confessions are often electronically recorded in Washington, but the custodial interrogations that produce those confessions are typically unrecorded. Law enforcement officers sometimes intentionally or inadvertently engage in interrogation methods that wear down a suspect over time and coerce a false confession. As an investigation proceeds, confirmation bias may cause officers to ignore other evidence of a suspect's innocence. These factors ultimately lead to wrongful convictions and public distrust of the criminal justice system. In Washington, one out of every four wrongful convictions that have been overturned involved a false confession. Even when people who are wrongfully convicted are later exonerated, their lives have already been irreversibly damaged.
This bill establishes a uniform and predictable policy for the electronic recordation of custodial interrogations. Recent advancements in technology make it more feasible to capture and preserve electronic recordings, which has led to over 24 other states mandating electronic recordings of custodial interrogations to some degree. An electronic recording ensures that, at trial, the finder of fact does not have to depend solely on the memories of law enforcement officers and other witnesses. Having the ability to see and hear a custodial interrogation puts the trier of fact in the best position to determine what happened during the interrogation and whether a subsequent confession is legitimate. An electronic recording may corroborate other incriminating evidence and facilitate a rightful conviction, or it may reveal coercive tactics that evince a false confession. In either scenario, electronic recordings allow prosecutors and defense counsel to better understand and prepare their cases, reducing the judicial resources needed to address pretrial issues and lowering the frequency of wrongful convictions. Additionally, the added transparency and accountability that comes from electronic recordings will improve public trust in the integrity and credibility of the criminal justice system.
(Opposed) The circumstances where electronic recordings are required by this bill should be further limited. In effect, this bill requires every law enforcement agency to utilize body and dashboard cameras. Although comprehensive electronic recordation is a best practice, some law enforcement agencies do not have practical access to the needed technology. Electronic recordings should only be required in a true place of detention, such as a jail or other detention facility which can be reliably equipped with recording devices.
(In support) There was a case, not in Washington, some years back where a young man about 18 years old with an intelligence quotient of 60 was accused of a horrific crime. The police in that jurisdiction felt they had the person and they coerced a confession and ultimately a written confession out of this young man. The confession stood up in court, there was no recording of the interrogation and no recording of the process. Meanwhile, the actual perpetrator of the crime committed more horrific crimes and was finally caught; the first young man was exonerated after spending well over 20 years in prison. We want to avoid this for our legal system, for our law enforcement agencies, and certainly for innocent citizens in the State of Washington. This is not a bill to mandate the wearing of body cameras. Ideally, in a perfect world, with unlimited resources, all of our officers wearing body cameras would be a policy that we might want to pursue. Instead the amendment would mandate, at a minimum, an audio recording in places of detention that might be in the field, for instance, in the back of a police cruiser, in the principal's office at the school, and other instances where a person believes that they are in custody when these interrogations and investigations start. The best example out in the field would be when you are in the back of the police car handcuffed and prior to Miranda rights. This will protect law enforcement from undue accusations and protect the citizens.
(Opposed) This bill does not simply require electronic recording in a place of detention. It requires electronic recording any time that an officer by their questions or actions attempts to solicit a potentially incriminating response from somebody who considers themselves in custody, an entirely subjective determination. A recent court of appeals decision determined that a person was in custody in a voluntary, prearranged meeting in a shopping mall parking lot to discuss an incident with an law enforcement officer. While it may not be intended to require body cameras, the fiscal notes accurately reflect that the most effective way to accommodate the requirements of the bill is to deploy body cameras on all officers any time that they are in the field. The scope of the bill should be narrowed to simply limit the requirements to a place of detention and an appropriate place of detention. We would not consider a school as a place of detention. This is certainly best practice. Even in the field, it is best practice to have these interactions recorded. Agencies do not do this now because they do not have the resources.