About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

Sullivan and Vail Manuscript 1

handle is hein.nccusl/nccpub01023 and id is 1 raw text is: THE CONSEQENCES OF LAW ENFORCEMENT OFFICIALS' FAILURE TO RECORD CUSTODIAL INTERVIEWS AS REQUIRED BY LAW THOMAS P. SULLIVAN & ANDREW W. VAIL I. INTRODUCTION In an article published in this Journal in 2005, we advocated the enactment of state statutes requiring that interviews of suspects held in custody in police facilities be electronically recorded, and we attached a proposed model statute.' After several years of additional research, and discussions with law enforcement and legislative personnel, we have revised our proposed statute in one important substantive respect. We have deleted the provision that evidence of an unrecorded interview is presumed inadmissible in evidence when no statutory exception to the recording requirement applies. Instead, we now recommend that the trial judge permit the prosecution to introduce evidence of all unrecorded interviews, and if the failure to record is not justified under the law, and if the case is heard by a jury, the judge must give instructions explaining the greater reliability of electronic recordings of custodial interviews, as compared to witnesses' testimony about what occurred. 2 The new model statute is contained in Appendix A. In this article, we explain the reasons for the change. I. THE PROVISIONS OF OUR PRIOR MODEL STATUTE. As relevant here, our 2005 model statute contains the following provisions: Section 2 provides that all statements made by persons suspected of designated felonies during custodial interviews must be electronically recorded. Section 3 provides that unless recording is excused under the provisions of Sections 4 or 5, unrecorded statements shall be presumed inadmissible as evidence against the person in any juvenile or criminal proceeding brought against the person. Sections 4 and 5 describe a variety of circumstances which excuse the requirement that custodial interviews be recorded, thus overcoming the presumption of inadmissibility and permitting unrecorded statements to be admitted into evidence. The presumption of inadmissibility in Section 3 was based upon a similar provision contained in the Illinois recording statute,3 enacted in 2003, which requires, with certain exceptions, that custodial interviews of suspects in first degree murder investigations be electronically recorded. This was the first mandatory recording law to be enacted by a state legislature. III. A SUMMARY OF STATUTES AND COURT RULINGS REQUIRING RECORDED CUSTODIAL INTERVIEWS, AND THE CONSEQUENCES OF FAILURE TO RECORD AS REQUIRED. The earliest requirements that custodial interviews be recorded by state law enforcement officials came in a 1985 ruling of the Supreme Court of Alaska, followed almost a decade later by a 1994 decision 1 Electronic Recording of Custodial Interrogations: Everybody Wins, 95 J. Crim. L. Criminology 1127 at 1141-44 (2005). 2 We have also made editorial changes to the model statute, designed to bring more clarity to its provisions, but which do not alter the substance. 3 705 ILCS §405/5-401.5 and 725 ILCS §5/103-2.1, relating to investigations of first degree murder suspects (the statute took statewide effect in July 2005). Error! Unknown document property name.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most