Rules of Evidence

The Rule takes a tremendous and overdue step in protecting against the injustice caused by false or coerced confession, or the mistakes or misrepresentation of overzealous law enforcement officers. Exceptions set forth in subparagraphs (3), (5) and (9), however, will only dissolve the protections intended by the rule.
Subparagraph (3) will allow overzealous, or dishonest law enforcement officers to simply bypass the rule by claiming the recording device was working but did not work on that occasions, or the officer believed he had turned on the machine and only learned later that he had failed to do so. This is a common occurrence with body cams, dash cams, and audio recording devices inside patrol vehicles and on uniforms. While the majority of law enforcement officers would not seek to skirt the Rule in this fashion, the real benefit of the Rule is to protect against those officers who would.
Subparagraph (5) rewards an officer who would bypass the Rule. The trustworthiness inherent to the Rule is the objective nature of the recording. It is an opportunity for the trier of fact to hear the cadence, tone, tenner, volume and aggressiveness of the participants’ speech objectively rather than colored by the description of the officer’s testimony. An overzealous or dishonest officer who is willing to exaggerate or manufacture the incriminating nature of an alleged confession, is an officer who is both willing and likely to describe his or her own conduct as non-coercive and provide “guarantees of trustworthiness.” While I can imagine circumstances were independent and objective persons and facts could provide substantial guarantees of trustworthiness, as written the exception is just too general and too broad to provide the protection intended by the Rule. Again, from defense counsel’s perspective, we do not need protection against the majority of officers who would follow that Rule but against those officer and those instance when there is motivation to ignore the Rule.
Subparagraph (9) serves only to undermine the protections offered by the Rule. The reliability, accuracy, or truthfulness of an alleged confession is not dependent upon when it is offered into evidence. Similarly, the credibility, reliability, accuracy, or truthfulness of the witness giving testimony of the confession is not dependent upon whether that witness testifies in the prosecution’s case-in-chief or in rebuttal. What singularly matters is the circumstances eliciting the alleged confession. If the confession is coerced, or if the testifying officer misrepresents, exaggerates or is simply mistaken about the defendant’s alleged statements, those ills are not cured simply because the statement is offered in rebuttal.
Moreover, it would seem the exception itself is rooted in the belief that any defendant who testifies in contradiction to the alleged confession or statement is lying, and the officer’s assertion the statement was made or not coerced is truthful, and the alleged confession or statement must be allowed into evidence to right that wrong committed by the defendants untruthful testimony.

Is this rule necessary given the wide body of applicable case law already in existence and the potential inability of this rule to cover every factual scenario?

Honorable Justices: I submit my enthusiastic support of URE 616. For over a decade I have advocated for legislation or court rules that require custodial interrogations of felony suspects to be electronically recorded from the Miranda warnings on. 38 Champion 48 June 2014) contains a listing of states that now mandate statewide recording. The U. S. Dept. of Justice recently adopted a recording policy for its agents. Respectfully, Thomas P. Sullivan

I wholeheartedly endorse the proposed rule. While such a rule is not required by Constitutional principles, it would serve to make sure such principles are protected. The rule would incentivize the recording of confessions which would bring greater transparency to law enforcement practices and create a clear record of what the defendant actually said, in his own words. This has the dual benefit of ensuring confessions are truly voluntary and reported accurately, and of preserving strong evidence that would convict a guilty defendant with his own voice.
I agree that technical wording changes must be made. The fact is, a person can be “in custody” nearly anywhere, including sitting on the curb in handcuffs while officers search his car, surrounded by officers with weapons in a public school where he is told he is not free to leave, or even detained in his own home while officers execute a search warrant. Police ownership or operation of a building is not a necessary condition to custody, and “place of detention” should not be limited to police buildings. With the ready availability of recording technology, including audio recorders on most cell phones carried by law enforcement, there is no reason not to extend the rule to custodial situations occurring in places ordinarily outside of police control.

Under the proposed rule, the admissibility of custodial interrogations will turn on a number of preliminary questions of fact. These will be 104(a) determinations.
Under Rule 104(a) the case law interpreting that rule, the proponent of the evidence has the burden of proving preliminary questions of fact by a preponderance of the evidence.
Given this well-established rule, there is no need to set forth the standard of proof in section (d)(1)(B) of the rule. Inserting this burden of proof in this rule but not in the many other rules which require preliminary fact determinations suggests that this is some new thing. It is not.
Compare the notice provisions in Rule 404(b) and 404(c). These rules raise preliminary questions under Rule 104(b) (as to whether the accused actually committed the other crime, wrong, or act), but the rule does not detail the burden of proof. The privilege rules, 801(d) statements, and many of the hearsay exceptions are all grounded in preliminary questions, but do not include a burden of proof statement. That is because Rule 104(a) provides the rule of decision on all such matters.
For these reasons, I recommend deleting subsection d(1)(B) of the proposed rule.

Questions of Admissibility, related to section (b), with the following language, “…and is available at trial.”:
1) Does the recording have to be admitted as evidence for the defendant’s statements to come in? Or, if the recording is available, can the officer still testify as to his personal recollection and knowledge of the conversation? [Allowing the defendant to impeach with the recording, if necessary.]
2) If the defendant’s statements only come in through admitting the recording at trial, can the defendant strategically look for other reasons to exclude the the recording (i.e., hearsay, irrelevant, overly duplicative, overly prejudicial, etc.), and thereby preclude the prosecution from admitting the statement altogether?
3) Some recorded interviews include conversations between multiple individuals and sometimes stray into subject matters not relevant to the case. Is the entirety of the custodial interrogation to be admitted? Or just relevant and non-objectionable soundbites?
4) What about recorded interviews that go on for hours, or across several days? Are they going to have to be admitted and listened to in their entirety at trial? [Is the non-admitting party entitled to require the full recording be played and not just portions?]
5) How is otherwise inadmissible hearsay to be addressed in such recordings?
The notice requirement in section (d) would appear to require an additional procedural/evidentiary hearing in many criminal cases, for the prosecution to prove an exception for admissibility of the statement by a preponderance of evidence. This seems to add an additional step and time delay in criminal prosecutions, creating an unnecessary additional burden on the prosecutor, the courts, and their staff — unnecessary in that the issue of reliability of the defendant’s statement is already addressed in other ways (as mentioned by prior comments).
This rule does appear to gut the effect of the Non Hearsay rule of Rule 801(d)(2).
I would echo the comments previously made about treating law enforcement non-hearsay testimony differently or less reliable than the non-hearsay testimony of others. The Rules of Evidence already provide the necessary guidelines for addressing issues of reliability and credibility. Why is this rule treating the personal knowledge and recollection of law enforcement differently than other lay witnesses? Furthermore, case law appears to already address the issues and concerns of custodial interrogations.

The Statewide Association of Prosecutors (SWAP), which includes all County Attorneys, City Prosecutors, and the Utah Attorney General, opposes the adoption of proposed rule 616, which excludes unrecorded confessions to police except under certain circumstances. First, we question the appropriateness of using a court rule to impose a nonconstitutionally-required procedure on police. Second, we believe that a rule is unnecessary where cross-examination provides a more than adequate procedure for testing the reliability of unrecorded police confessions. Finally, if the Court is going to adopt a rule requiring that custodial interviews be recorded, exclusion for failing to record goes too far. Any remedy should permit admission with a cautionary jury instruction if requested by the defense.
SWAP supports recording custodial interviews. As a threshold matter, SWAP agrees that law enforcement should, whenever possible, record custodial interviews. Recording benefits the entire criminal justice system. To that end, in October 2008, the Utah Attorney General’s Office, in conjunction with statewide law enforcement agencies, drafted a best practices statement recommending recording custodial interrogations in their entirety in felony cases. See Office of the Utah Attorney General, Best Practices Statement for Law Enforcement: Recommendations for Recording of Custodial Interviews (Oct. 2008) (available online at: http://www.utahchiefs.org/wp-content/uploads/2012/07/Recording-of-interrogations-best-practive-08.pdf). Despite the experience in State v. Perea, 2013 UT 68 (which apparently prompted proposed rule 616), we believe that most Utah law enforcement agencies currently record custodial interviews, at least in felony investigations.
This Court should not use court rule to regulate police procedure. That said, SWAP questions whether it is appropriate for the Court to regulate police procedure when no constitutional right is at stake. We recognize that the proposed rule is a rule of evidence and that the Court has the authority to decide what evidence is and is not admissible. But the rule itself appears to be more about imposing a procedure on when and under what circumstances law enforcement must record custodial interviews than it is about whether evidence of unrecorded interviews is sufficiently reliable to be admissible. While the United States Supreme Court did this in the context of Miranda warnings, the right at issue there was a constitutional one: the 5th Amendment privilege against self-incrimination. But neither the federal nor state constitutions required a police interview to be recorded before it may be admitted. See United States v. Montgomery, 390 F.3d 1013, 1017 (7th Cir. 2004), cert. denied, 544 U.S. 968 (2005) (recording of police interrogations not “constitutionally required”); State v. Villarreal, 889 P.2d 419, 427 (Utah 1995) (“[C]ontemporaneous recording of a confession is not mandated by the Utah Constitution.”). Rather, a failure to record goes only to the weight that should be given evidence of the unrecorded interrogation. This run-of-the-mill evidentiary concern does not warrant regulating police procedure by court rule.
The proposed rule is unnecessary. Moreover, current constitutional and procedural rules render this rule unnecessary. As stated, the issue here is really the reliability of—or weight to be given to—evidence of unrecorded police interviews. As the United States Supreme Court recently held, “the potential unreliability of a type of evidence does not alone render its introduction at the defendant’s trial fundamentally unfair.” Perry v. New Hampshire, 132 S. Ct. 716, 729 (2012). Rather, the federal constitution’s Due Process Clause “protects a defendant against a conviction based on evidence of questionable reliability, not by prohibiting introduction of the evidence, but by affording the defendant means to persuade the jury that the evidence should be discounted as unworthy of credit.” Id. at 723. These tools include the right to counsel, compulsory process, confrontation, and cross-examination. Id. And, as the Utah Supreme Court held in Perea, reliable expert testimony on the phenomenon of false confessions is also admissible in appropriate cases. See Perea, 2013 UT 68, ¶71. Thus, there is no need for a special rule addressing the treatment of evidence of unrecorded police interviews. Rather, they should be admitted and tested for the factfinder, just like any other evidence.
Exclusion is not an appropriate consequence. But if a rule governing the admissibility of custodial statements is inevitable, proposed rule 616 goes too far by presumptively excluding unrecorded interviews. The rules of evidence should not presume that law enforcement officers are incapable of accurately, reliably, and truthfully recounting a defendant’s custodial statements. There is no support—legal or otherwise—for such a presumption. In fact, such a presumption contradicts well-established rules of evidence. For example, rule 801(d)(2)(A) makes a defendant’s statements presumptively admissible whether or not recorded, regardless of who recounts them. See Utah R. Evid. 801(d)(2)(A) (opposing party’s statement offered against that party is not hearsay). The proposed rule would carve out an exception to rule 801(d)(2)(A)’s presumption for law enforcement officers alone.
Case law likewise undermines any presumption that law enforcement officers cannot reliably recount a defendant’s custodial statements. As stated, neither the federal nor the state constitutions require police to record interrogations in order to admit a defendant’s statements during interrogation.
Finally, the presumptive admissibility of jailhouse informant testimony underscores the lack of any justification for the proposed rule’s presumption. A defendant’s unrecorded statements to a jailhouse informant are presumptively admissible, despite well-founded suspicion of such witnesses. See People v. Belknap, 23 N.E.3d 325 (Ill. 2014) (“[W]hile it is true that the testimony of jailhouse informants must be viewed with caution, the credibility of a government informant, as with any other witness, is a question for the jury.”); Darryl K. Brown, The Decline of Defense Counsel and the Rise of Accuracy in Criminal Adjudication, 93 Cal. L. Rev. 1585, 1597 (2005) (jailhouse informants “are, as a class, less reliable”). But the proposed rule inconsistently treats a jailhouse informant’s testimony with more dignity than a sworn law enforcement officer’s.
Even if an officer’s recounting of an unrecorded custodial statement were of questionable reliability, presumptively excluding such testimony still goes too far. As stated, “the potential unreliability of a type of evidence does not alone render its introduction at the defendant’s trial fundamentally unfair.” Perry v. New Hampshire, 132 S. Ct. 716, 729 (2012). Again, our constitutional procedures and rules protect a defendant against conviction based on questionably reliable evidence, not by excluding the evidence, but by giving defendant the tools—such as cross-examination—to test the evidence before the jury. Id. at 723.
Significantly, research shows that exclusion is not necessary to encourage recording. See Thomas P. Sullivan & Andrew W. Vail, The Consequences of Law Enforcement Officials’ Failure to Record Custodial Interviews as Required by Law, 99 J. Crim. L. & Criminology, 215, 221 (2009). Although Mr. Sullivan originally advocated for presumptive exclusion, he has now concluded that presumptive exclusion is “not necessary to achieve compliance with recording laws.” Id. He arrived at this conclusion after exhaustive study and research, including observing the results of recording statutes and “court rulings on the practices of law enforcement officials,” and interviewing prosecutors, defense lawyers, and over “600 law enforcement officers” in all fifty states. Id. at 220-21 & n.24. Mr. Sullivan reasons that exclusion is unnecessary for achieving compliance for two reasons. First, in Mr. Sullivan’s experience, once they try it, officers generally “become enthusiastic supporters of the practice” given its benefits. Id. at 221. Second, he finds “merit” in concerns that exclusion will allow guilty defendants to escape punishment either because they are not charged, or because they are acquitted for lack of sufficient evidence. Id. at 222-23.
This second concern is well-taken, particularly because the constitution does not require recording. “The principal cost of applying any exclusionary rule ‘is, of course, letting guilty and possibly dangerous criminals go free.’” Montejo v. Louisiana, 556 U.S. 778, 796 (2009) (quoting Herring v. United States, 555 U.S. 135 (2009)). The exclusion of a defendant’s uncoerced statements does not prevent the factfinder from hearing merely relevant evidence. Rather, voluntary confessions are arguably the most desirable and helpful evidence in the search for truth. See Hopt v. Utah, 110 U.S. 574, 584 (1884) (“A confession, if freely and voluntarily made, is evidence of the most satisfactory character.”). In fact, confessions “are essential to society’s compelling interest in finding, convicting, and punishing those who violate the law.” Moran v. Burbine, 475 U.S. 412, 426 (1986). “Without [uncoerced] confessions, crimes go unsolved and criminal unpunished.” Montejo, 446 U.S. at 796. Presumptive exclusion is therefore too drastic a consequence because it would frustrate, rather than further, justice.
A cautionary instruction is a better alternative consequence. Rather than exclusion, Mr. Sullivan now concludes that the “better approach” to handling unrecorded interrogations is to admit the evidence with a cautionary instruction to the jury. Sullivan & Vail, supra, at 221
If a rule is adopted, SWAP agrees with Mr. Sullivan that a cautionary instruction is the best-tailored approach for addressing the competing policy concerns. On the one hand, it puts unrecorded custodial interviews on the same footing as any other evidence of a defendant’s unrecorded statements—it allows the factfinder to consider the evidence and determine the reliability of the defendant’s statements in light of all the evidence, including the failure to record. On the other hand, a cautionary instruction would give law enforcement a significant incentive to record whenever possible.