Interrogations.  The federal and state constitutions provide a series of protections for individuals when they interact with law enforcement officers, including 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 any time during the interrogation.  A person may waive those rights if:

• the waiver is the product of a free and deliberate choice rather than intimidation, coercion, or deception; and
• the waiver is made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.

Use of Statements Obtained During Interrogation.  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 when evaluating whether a waiver is valid.

Uniform Law Commission.  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.  The provisions have been adopted by Vermont in statute and Indiana by court rule.

Electronic Recording.  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.  Both audio and video recording must be used for custodial interrogations occurring at a jail, police or sheriff's station, holding cell, or correctional or detention facility.  Custodial interrogations at other places of detention must be recorded by audio means at a minimum.   Consent is not required before electronically recording a custodial interrogation, but the individual must be informed that an electronic recording is being made.

An officer conducting a custodial interrogation at a place of detention without electronically recording it, or outside a place of detention, must prepare a report as soon as practicable explaining:

• the reason for failing to record the interrogation or conducting the interrogation outside a place of detention; and
• summarizing the interrogation process and the person's statements.

Exceptions.  The requirement for electronic recording does not apply if:

• exigent circumstances exist, and an officer electronically records an explanation of the exigent circumstances as soon as is practicable;
• the individual indicates they will not participate in the interrogation if it is electronically recorded;
• the interrogation occurs in another state or is conducted by a federal law enforcement agency;
• no officer knows facts or circumstances indicating the interrogation is of a juvenile or related to a felony;
• an officer reasonably believes an electronic recording would disclose the identity of a confidential informant or jeopardize the safety of an officer, the person being interrogated, or another individual; or
• the electronic recording equipment malfunctions despite reasonable maintenance, and timely repair of the equipment is not feasible.

Use of Unrecorded Statements.  The prosecuting attorney must provide a defendant with notice of intent to introduce an unrecorded statement made during custodial interrogation and prove any exception to the recording requirement applies by a preponderance of the evidence.  The court must consider the failure to electronically record all or part of a custodial interrogation in determining whether a statement is admissible unless it determines an exception applies.  If a person's unrecorded statement is admitted into evidence, the court must, upon the person's request, give a cautionary instruction to the jury.

Rulemaking.  Each law enforcement agency must adopt and enforce rules and procedures that address the following:

• identification, accessibility, and preservation of recorded interrogations;
• standards for electronic recordings, including the angle, focus, and field of vision for recording devices to promote accurate recordings and assessment;
• the collection and review of electronic recordings by supervisors;
• supervisory responsibilities and a chain of command to promote internal accountability;
• explaining noncompliance with procedures and imposing administrative sanctions for unjustified noncompliance;
• a supervisory system expressly imposing on individuals in specific positions a duty to ensure adequate staffing, education, training, and material resources; and
• a process for monitoring chain of custody.