For members of law enforcement well-versed in the practice, it may come as a surprise to learn that, as of 2017, only 25 states (including Washington, D.C.) are legally required to record their custodial interviews, with two others having adopted statewide policies voluntarily.
The number of states with interrogation recording requirements has increased dramatically since 2003 (when only Alaska and Minnesota required it) because research proves time and again that it’s a valuable investment for both law enforcement agencies and the communities they protect. Though state-mandated requirements have come largely in response to the problem of people falsely implicating themselves in a crime—a surprising but not entirely uncommon occurrence—the benefits of interview recording extend far beyond preventing false confessions.
While a little over 50 percent of the country has passed legislation or voluntarily committed to recording custodial police interviews, when and why they record varies significantly by state. Of those 27 states, only four—Alaska, Arkansas, Minnesota, and Montana require that all interviews for all offenses be recorded while Indiana, New Mexico, Utah, and Wisconsin require it only for all felony charges. The majority of the remaining states (Colorado, Connecticut, Illinois, Kansas, Maine, Maryland, Michigan, Missouri, Nebraska, New Jersey, New York, North Carolina, Texas, Vermont, and Washington, D.C.) reserve recording requirements for specific, major offenses, such as capital murder and rape charges, as well as certain other sex crimes, aggravated crimes, and other serious or violent offenses. Finally, California and Oregon have limited their legal requirements with extreme specificity. California only mandates recording if a juvenile is suspected of murder, and in Oregon, only when a) someone is suspected of aggravated murder, is b) facing a mandatory minimum offense, or is c), a juvenile who will be processed in adult criminal court.
As far as states that have voluntarily committed to recording, Rhode Island records for all capital offenses while Hawaii records for all serious crimes. Additionally, Idaho, which has no formal statewide recording commitment reports that 22 percent of its law enforcement agencies record, while a Supreme Court ruling in Massachusetts, expressing a preference for all interrogations to be recorded, has led to an unofficial statewide mandate. As of 2014, even the U.S. Department of Justice requires interview recording by many of its law enforcement agencies.
Because of its ability to better convict the guilty, protect the innocent, shield law enforcement from false claims of misconduct, and save time and money, the future of mandatory interview recording nationwide seems a wise and advantageous choice. And a federal interview recording policy wouldn’t be unprecedented; other countries, including the United Kingdom, Canada, New Zealand, and Australia already require it.
A federal mandate here in the U.S. is just as feasible. Not only is the recording technology relatively inexpensive to implement, but a mandate has wide support from both inside and outside of law enforcement (including from a diverse range of organizations such as the American Bar Association, ACLU, and the International Association of Chiefs of Police, among many others). Of course, the recording process isn’t perfect, and there are a number of important factors to consider, such as what offenses should require recording, how long recordings should be preserved, and how recording violations ought to be remedied, before a far-reaching policy can be effectively adopted.
In the meantime, law enforcement agencies can still take advantage of the benefits of recording—whether or not their home state requires it. Interview recording promotes integrity, transparency, accuracy, and fairness—all core values to any defender of justice.
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