The March/April issue of Judicature, the publication of the American Judicature Society, contains the article, "A Compendium of law relating to the electronic recording of custodial interrogations," by Thomas P. Sullivan. He's a partner at Jenner & Block in Chicago, and former U.S. Attorney.
Here's the introduction:
This compendium has been assembled in order to summarize in a single document the information my associates and I have collected during the past eight years relating to federal and state law and practices concerning electronic recording of custodial interviews of felony suspects.
When we began to investigate this topic in 2003, there were two supreme courts which previously ruled that state law enforcement officials must make electronic recordings of custodial interviews of felony suspects, Alaska and Minnesota. That year, Illinois became the first state to enact a mandatory electronic recording statute, limited to suspects in homicide investigations. Since then the legislatures of ten other states1 and the District of Columbia have enacted recording statutes concerning electronic recording of custodial interrogations involving a variety of crimes. The supreme courts of two other states have adopted rules requiring recording.2 In nine other states, the supreme courts and legislatures are considering whether to require electronic recording of custodial interviews of felony suspects.3
Following several years of study, conferences and drafting, the National Conference of Commissioners on Uniform State Laws in July 2010 adopted a comprehensive uniform state mandatory recording statute. Representatives of the Conference will work with the state uniform law commissions and interested stakeholders in those states that do not already have mandatory legislation or court rules, to pursue introduction and enactment of the uniform statute.
During the past seven years, my associates and I have made calls to over 1,000 police and sheriff departments throughout the United States to inquire about their practices in recording custodial interviews from beginning to end. With few exceptions, in the many police and sheriff departments we have contacted – those in states in which recording is required, and those in which recording is a voluntary practice – we have received enthusiastic support for recording expressed by experienced law enforcement personnel. We have obtained similar favorable endorsements from prosecutors and members of the judiciary. Those who do not record often warn of hypothetical dangers and downsides that are not mentioned by those that have experience with recording.
This Compendium describes our findings about the practices of the states and certain federal agencies with respect to recording custodial interrogations. It is divided into the following five parts:
Part 1 contains a summary of the benefits of electronic recordings of custodial interviews.
Part 2 contains a summary of the law and practice of each state with recording custodial interviews of suspects in felony investigations.
In the states in which recording of suspects is not clearly required by statute or court rule in a defined categories of felonies, I have listed the departments that record on their own initiative. Those named are police departments unless otherwise indicated. CS refers to county sheriff departments, FD to fire departments, and DPS to departments of public safety. Some states have statutes regarding the need for all parties to a conversation to consent to an electronic recording, and/or have statutes relating to the use of hidden cameras in public places; most, but not all, exempt the police. Hence, local law on these subjects should be ascertained when drafting electronic recording statutes and rules.
We have not conducted a traditional survey. Rather, we have obtained information about the listed departments from (1) telephone calls to police and sheriff departments we believe record a majority of their custodial interviews; (2) from leads to departments provided by personnel in those departments; and (3) from completed forms distributed by an Illinois firm that trains police investigators. We have on file contemporaneous memoranda of the contents of every call, and the completed survey forms. I am confident that there are thousands more that currently record, but which we have not identified owing to the resources available during the past seven years to make calls; our calls continue. Readers are encouraged to send me additions or corrections to the lists.
Part 3 summarizes what we have learned regarding the recording practices of federal investigative agencies.
Readers will observe that many of the primary federal agencies do not record custodial interrogations as a matter of course, most notably those of the Department of Justice - the Federal Bureau of Investigation (FBI), the Drug Enforcement Agency (DEA), and the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). Those agencies still adhere to traditional methods of recording their interviews, using handwritten notes or unaided recollection, later transferred to typewritten reports. Their continued failure to adopt the far more complete and accurate method of recording flies in the face of the experiences of detectives and supervisors from throughout the country. They have and routinely use the most sophisticated electronic devices in their investigations, but not in custodial settings when the agents have complete control of the surroundings and easy access to the equipment. In my opinion, it is inevitable that these agencies - and, for that matter, the balance of state law enforcement agencies - will adopt the use of electronic recordings of all custodial interrogations in felony investigations.
Part 4 recounts the positions announced by national organizations in support of electronic recording of custodial interviews.
Part 5 contains a listing of articles and books about electronic recording of custodial interviews.
The Uniform Electronic Recordation of Custodial Interrogations Act, adopted in 2010 by the National Conference of Commissioners on Uniform State Laws, is also available.