Rules of Evidence

URE 0616. Statements Made During Custodial Interrogations. New. Outlines the requirements for admissibility of statements made during custodial interrogations and provides exceptions.

Utah Courts

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13 thoughts on “Rules of Evidence
  1. Mark Flores

    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.

  2. William J. Carlson

    This proposal threatens to gut Rule 801(d)(2) and eliminate the admissibility of statements made by defendants. In short, it requires the audio (and video) recording and long term storage of every interaction with every individual who considers himself or herself to be in custody. There are several problems with this rule.
    First, subsection A defines a “law enforcement agency” so broadly that any shopkeeper who detains someone for retail theft is included. See Utah Code 77-7-12. That shouldn’t be much trouble for WalMart, but smaller retailers will have to install recording equipment if they ever intend to detain suspected shoplifters. Also, “Place of detention” includes the entire building, so audio recording equipment must be installed throughout.
    Second, the presumption that without a recording, any statement is inadmissible will result in statements made to law enforcement agencies with fewer resources being admitted as evidence less often than statements made to better funded agencies.
    Third, the exceptions for broken recording equipment or even just a recording that doesn’t pick up everything require officer ignorance or “substantial exigent circumstances.” That’s simply unrealistic.

  3. Samuel D. McVey

    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?

  4. Ryan Peters

    I disagree with this proposed rule in its entirety and urge you that it not be adopted. It suggests that law enforcement officers cannot be trusted…in an environment and time when that should not be suggested. It has no root whatsoever in either the State or Federal Constitution. I’m troubled as to what the impetus for this rule would be. It is in effect an exclusionary rule under the 5th amendment. The exclusionary rule is to curb bad, undesirable, and unconstitutional behavior on the part of law enforcement officials. This would have no such effect. What undesirable behavior would it curb? Only the non-recording of an interview…something that on its face is neither bad nor undesirable nor unconstitutional. It has the effect of suppressing the truth, simply because it wasn’t recorded. I believe this is bad public policy. An unrecorded statement is already something that is suspect and is easily attacked by the defense bar for the mere reason that it wasn’t recorded. We don’t need yet another rule to memorialize something that is already occurring. Further, I think the language, prohibiting the use of the statement in “a criminal prosecution,” is highly over-broad. Does that make it inadmissible at a preliminary hearing, despite the use of reliable hearsay under rule 1102. If the Supreme Court is determined to adopt such a rule, at the very least, the language should be limited to a criminal trial, preserving the reliable hearsay exception for a preliminary hearing. Without that, preliminary hearings will now have the possibility of bogging a court’s calendar down with having to listen to entire interviews of defendants at the mere whim of a defense attorney. Further, what about the non-hearsay rule in 801(d)(2)? The proposed restriction seems to swallow the opposing party’s statement rule but for the fact that the statement is recorded. Basically, if the statement is not recorded, the parties are unable to use this long standing, non-hearsay rule, something that seems to fly in the face of long standing jurisprudence. I urge the Supreme Court to reject this rule in its entirety.

  5. Thomas P. Sullivan

    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

  6. Thomas Thompson

    This comment relates to the proposed Rule 616.
    Under Rule 616 as presently proposed, there is an underlying tension between the definition of “custodial interrogation” and the determination of admissibility of statements made during any such custodial interrogation.
    Preliminarily, it is suggested that the term “reasonable individuals” in subsection (a)(1) may lead to interpretive confusion and I recommend substituting the term “a reasonable person” for “reasonable individuals.”
    I also suggest that the term “place of detention” should be more broadly stated to include anyplace where a law enforcement officer is — explicitly or implicitly — detaining an individual. The term should not be limited to “a law enforcement agency station, jail, holding cell, correctional or detention facility, police vehicle or any other stationary or mobile building owned or operated by a law enforcement agency,” because that restriction could suggest that law enforcement officers may engage in virtually any questioning they want, even where they have come into the home of the person they wish to question, or when those officers have detained a person simply walking along the street. The common understanding of a reasonable person would be that, if a law enforcement officer has detained them in either of those two locations, then as a practical matter, they are “in custody,” particularly where the law enforcement officer is armed.
    Notably, subsection (a)(1) defines a custodial interrogation as virtually any questioning by a law enforcement officer “when reasonable individuals in the same circumstances would consider themselves in custody.” The problem is that in subsection (b), even if the individual reasonably concludes he or she is in “custody,” no protection is afforded to their statements under Rule 616 unless, in addition to the existence of a “custodial interrogation” that interrogation is also conducted “in a place of detention.” People being questioned by law enforcement officers should be protected by Rule 616 at any time they reasonably conclude that they are in fact in “custody.” Where such officers are armed, it is very likely that a reasonably prudent person would consider themselves to be in “custody” whether or not they happen to be located in one of the places defined in subsection (a)(5).
    In short, the rule should be modified to require that all statements made while a reasonable person has concluded he or she is “in custody” should be inadmissible.

  7. Dustin Parmley

    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.

  8. Nathan Evershed

    One of the problems I have behind this rule is the underlying distrust of law enforcement. It implies that the an interrogation by a detective is not believable unless it is recorded. While our jury instructions say that a law enforcement officer’s testimony should be weighed like any other witness, now a proposed rule of evidence suggests not to trust the word of an officer unless recorded. This rule implies that taking an oath and swearing to tell the truth, whether in court or as part of one’s duties, is not enough for law enforcement. No, we need recordings in order to believe them.
    Of course, it is preferable to record the interview, just like it is preferable to have DNA or fingerprint evidence. Unfortunately, a case may not have everything that one would like, but there are means to address such “weaknesses.” A defense attorney could highlight missing evidence on cross-examination or in closing argument, for example. Additionally, if there is a claim that the statement was not voluntary, under a history of long established case law, the statement could be suppressed. Thus, there are already a myriad of ways to address unrecorded interrogations and even potentially remove them from evidence. However, instead of using the scalpel already in place, this rule appears to prefer the club.

  9. Judge Derek P. Pullan

    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.

  10. Clint Heiner

    I would suggest that two changes be made to the rule:
    (1) Do not outright preclude the statement – allow the Judge to exercise discretion to determine what remedy is appropriate, and
    (2) Do not require the State to give notice of its intent to use the non-recorded statements
    (1) Do not outright preclude the statement
    True, it is best practice to record any statement of a defendant when in a custodial and detention type setting; however, to preclude the statement rather than simply give a cautionary instruction is bad public policy. The better policy would be to give the jury a cautionary instruction about the inherent risks that come with not recording a statement. This still allows the statement to come in for evidentiary purposes (being mindful that the statement still has to pass the “Miranda” and “Voluntary” tests) and be subject to an effective cross examination about why the statement was not recorded and the reliability of the statement in general. This is what other States have done. See, Commonwealth v. DiGiambattista, 442 Mass. 423 (2004).
    Credibility is always an issue whether the witness is a police officer or a civilian. We put a great deal of trust in our officers and to determine that statements must be recorded or precluded all together undermines their authority as well as other rules of evidence (i.e. credibility in general). Officers, like any other witness, take an oath to tell the truth, the proposed rule assumes that the officer is not being truthful if the statement is not recorded. If a biased spouse takes the stand and testifies about a statement made by the Defendant, it is admitted even if uncorroborated! But if an objective officer under oath testifies to the same type of evidence, and does not record it, it is precluded? This is simply bad policy. We already instruct juries that they are to evaluate the testimony of law enforcement the same as any other witness, this rule places a higher and unreasonable burden upon the State and its witnesses. The proposed rule punishes the public, the rule assumes that officers are not being truthful and precludes statements which could otherwise result in convictions. Additionally, this sends the wrong message to the community at large… this rule as drafted would reinforce a negative public view of all officer as opposed to the few that abuse their power.
    Other remedies (no penalty, cautionary jury instructions and preclusion)
    Utah Law and Federal Law have always held that such evidence, or lack thereof, should be weighed and considered by the “totality of the circumstances” test, relevance, and other rules. Currently, the lack of a recorded statement goes to the weight not admissibility. Certainly, greater weight should be given to statements corroborated by intrinsic or extrinsic evidence as opposed to confessions which are not corroborated. But to preclude them all together because they are not recorded is not consistent with other rules, mechanisms to determine admissibility, and is bad public policy.
    The State would always like to have “the smoking gun”, the DNA, the fingerprints, or the recorded statement but that is not always possible. There are mechanisms already in place to preclude the “fruit of the poisonous tree” by allowing a judge to exercise his/her discretion and look at the “totality of the circumstances” as to whether the proffered evidence should be precluded. Why change that now by creating a new rule. Simply apply an already existing mechanism to the evidence at hand. Allow the judge to apply the Rules of Evidence to the statements (i.e. is it relevant both logically and legally, what other 403 factors weigh in favor or against the evidence being admitted, etc.?) to determine if a jury instruction is appropriate or whether based on the “totality of the circumstances” the evidence should be precluded.
    The best practice is for an officer to record statements. However, when an officer uses good faith, does not violate Miranda, or obtains the statements voluntarily, then the officer and the State should not be penalized. In such cases the statement should be allowed without any penalty. As many of the exceptions point out, this accomplishes the rules intent (i.e. equipment failure, reliability, exigent circumstances).
    However, in some circumstances a cautionary jury instruction may be appropriate. For example, in Arizona there is a jury instruction that is given to juries when officers recklessly lose, destroy, or fail to preserve evidence, the jury can infer that the evidence had it not been lost, destroyed, or preserved would have been favorable to the defendant and the lack of such evidence should weigh in the defendant’s favor. See, State v. Willits, 96 Ariz. 184, 393 P.2d 274 (Ariz. 1964). Certainly in the situation where a Defendant is in custody at a place of detention a statement should be preserved.
    However, when an officer’s failure to record the statement (based on the “totality of the circumstances”) demonstrates that (s)he intentionally or knowingly did not record the statement when a “reasonable officer” would have, then allow for preclusion. But to preclude it out right… Does not conform with the other rules of evidence. (Obviously, the statement is precluded if not voluntary under any circumstances without the possibility of rebuttal; whereas, if there is a Miranda violation then the State can still use the statement in rebuttal). This would allow for additional evidence to be admitted against the officer such as his reputation or prior practice for recording such statements, other Brady/Giglio issues, etc. (Note: this may need to have a start date of the passage of such law since there currently is no requirement to record such statements).
    You could even give this proposed rule under any of the three remedy options more teeth by making it a “rebuttable presumption” weighing against issuance of Miranda, voluntariness, or reliability, should the defendant raise any of these issues.
    (2) Do not require the State to file a notice of intent
    Statements of a Defendant have always rested on defendants raising the issue of a “Miranda”, “Voluntariness” or reliability, now this rule requires the State to file a notice of its intent to use the non-recorded statement, this is an exercise in futility. The Statements if they are going to be offered by the State are already memorialized in a report and disclosed to Defendant, to place an added Burden upon the State to declare its intent to use these statements at trial is inconsistent with other rules. In fact, mere disclosure of such statements should be sufficient. The rule should remain consistent with all other similar type rules (i.e. “Miranda” or “Voluntariness” violations). The State puts the defendant on notice by disclosing the police reports, if the defendant believes that “Miranda” was not given or the statements were not voluntary then they have the right to file a motion to preclude those statements from being used. Statements that are gathered that raise no such objection, recorded or not, should be allowed; where those that are not recorded carry with it the cautionary jury instruction that tells the jury to cautiously consider such statements.
    Other Potential areas of concern
    Furthermore, the proposed rule fails to address other issues that may arise as a result of preclusion. For example, if a confession is made and an officer fails to issue a “Miranda” warning then the statement is precluded; however, if the defendant testifies and does so in opposition to the statement, then the State may offer in Rebuttal those statements that were taken in violation of “Miranda”. On the other hand, if a confession is made and the statement is determined not to be voluntary then there is no remedy for the State, that statement is precluded from evidence and should the defendant testify the State cannot offer the statement taken involuntarily to rebut that testimony. This proposed rule fails to adequately address the remedy, if any; other than to say an exception exists if the statement is going to be used for impeachment? But to what end? Can the State offer it as impeachment against other witnesses or only against the defendant should he testify? What if the defendant offers a defense (whether in opening statements, cross examination, his/her own witness, or closing) that contradict or are inconsistent with statements previously made by the defendant, but not recorded?
    Exception 4 states: “The law enforcement officers conducting or observing the custodial interrogation reasonably believed that the crime for which the person was being investigated was not a felony under Utah law”. This exception has too many potential issues and would open the flood gates to litigation. Within Utah’s statutes there are many crimes that are misdemeanor in nature; however, based on some ability for the State to enhance that crime based on priors, severity or injury, other’s involvement increases the level of the crime (i.e. Domestic Violence, severity of injury, gang enhancement, etc.). Then the issue comes into play about what information did the officer know, when did (s)he know it, etc.

  11. Kent A. Burggraaf

    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.

  12. Adam

    Subsection (c) refers to “the person” while subsections (b) and (d) refer to “the defendant”. These terms are not equivalent. If they are intended to be equivalent, that should be made clear by defining them in subsection (a).

  13. Statewide Association of Prosecutors

    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: 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.