Summary
Alaska has a Supreme Court ruling requiring recording of custodial interrogations.
Supreme Court Ruling
Citation: Stephan v. State, 711 P.2d 1156 (Alaska 1985).
General rule: If feasible, all interrogations that occur in a place of detention of persons suspected of committing a felony or misdemeanor, are required by the Due Process Clause of the Alaska Constitution to be electronically recorded. “Before the confession will be admitted, the prosecution must show a knowing and intelligent waiver of the defendant’s federal privilege against self incrimination and his right to counsel….To satisfy this due process requirement, the recording must clearly indicate that it recounts the entire interview.” (711 P.2d at 1159-60, 1162.)
Circumstances that excuse recording: “ …The failure to electronically record an entire custodial interrogation will, therefore, be considered a violation of the rule, and subject to exclusion, only if the failure is unexcused. Acceptable excuses might include an unavoidable power or equipment failure, or a situation where the suspect refused to answer any questions if the conversation is being recorded. We need not anticipate all such possible excuses here, for courts must carefully scrutinize each situation on a case-by-case basis. Any time a full recording is not made, however, the state must persuade the trial court, by a preponderance of the evidence, that recording was not feasible under the circumstances, and in such cases the failure to record should be viewed with distrust.” (711 P.2d at 1162-63, emphasis in original.)
Despite what we have said thus far, we recognize that nearly every rule must have its exceptions, and that exclusion of a defendant’s statements in certain instances would be wholly unreasonable. A violation of the [recording] rule does not, therefore, require exclusion of the defendant’s statements in all cases. Thus, the holding in this case does not bar the admission of statements taken before a violation of the recording rule occurs. Where recording ceases for some impermissible reason, properly recorded statements made prior to the time recording stops may be admitted, even when the failure to record the balance of the interrogation is unexcused, since such prior statements could not be tainted by anything that occurred thereafter. Also, failure to record part of an interrogation does not bar the introduction of a defendant’s recorded statements, if the unrecorded portion of the interrogation is by all accounts, innocuous. In such cases, there is no reason to exclude the defendant’s recorded statements, because no claim of material misconduct will be presented. [Citing authority.] For the same reason, a defendant’s unrecorded statement may be admitted if no testimony is presented that the statement is inaccurate or was obtained improperly, apart from a violation of the [recording] rule. (711 P.2d at 1165, emphasis in original.)
Consequences of unexcused failure to record: “… we adopt a general rule of exclusion. While other remedies may each have their merits, we believe an exclusionary rule will best protect the suspects’ constitutional rights, provide clear direction to law enforcement agencies and lower courts, and preserve the integrity of our justice system…We believe that a strong and certain remedy will have a considerable deterrent effect in future cases. Compliance imposes such minimal costs and burdens on law enforcement that they will have little to gain from noncompliance.” (711 P.2d at 1163.)
Preservation: “…state investigative agencies should have standard procedures for the preservation of evidence obtained during an investigation.” (711 P.2d at 1159 n.10.)
Discussion: Explaining its adoption of an exclusionary remedy for noncompliance, the Alaska Supreme Court said (711 P.2d at 1162-65):
it is not because a police officer is more dishonest than the rest of us that we…demand an objective recordation of the critical events. Rather, it is because we are entitled to assume he is no less human – no less inclined to reconstruct and interpret past events in a light most favorable to himself – that we should not permit him to be a ‘judge of his own cause.’ (Quoting Kamisar, Forward: Brewer v. Williams - - A Hard Look at a Discomfiting Record, 66 Geo. L.J. 209 (1977- 78)).
In both of the cases before us, the police were engaged in custodial interrogations of suspects in a place of detention. A working recording device was readily available, but was used to record only part of the questioning. Compliance with the recording rule is not unduly burdensome under these circumstances. Turning the recorder on a few minutes earlier entails minimal cost and effort. In return, less time, money and resources would have been consumed in resolving the disputes that arose over the events that occurred during the interrogations.
The only real reason advanced by police for their frequent failure to electronically record an entire interrogation is their claim that recordings tend to have a ‘chilling effect’ on a suspect’s willingness to talk. Given the fact that an accused has a constitutional right to remain silent, under both the state and federal constitutions, and that he must be clearly warned of that right prior to any custodial interrogation, this argument is not persuasive.
Agency policy and operations must change, not simply individual behaviors. Once they are fully aware of the consequences of unexcused violations of the [recording] rule, we are confident that law enforcement agencies will establish effective procedures to implement the rule and provide adequate training for their personnel. Suppression of statements taken in violation of the rule will, therefore, deter continued disregard of its requirements by officers, agencies and courts.
Another purpose is also served by the rule that we now adopt. The integrity of our judicial system is subject to question whenever a court rules on the admissibility of a questionable confession, based solely on the court’s acceptance of the testimony of an interested party, whether it be the interrogating officer of the defendant. This is especially true when objective evidence of the circumstances surrounding the confession could have been preserved by the mere flip of a switch. Routine and systematic recording of custodial interrogations will provide such evidence, and avoid any suggestion that the court is biased in favor of either party.
Most importantly, an exclusionary rule furthers the protection of individual constitutional rights. Strong protection is needed to insure that a suspect’s right to counsel, his privilege against self-incrimination and due process guarantees are protected. A confession is generally such conclusive evidence of guilt that a rule of exclusion is justified, when the state, without excuse, fails to preserve evidence on the interchange leading up to the formal statement. This is especially true when, as in these cases, the defendant may have been deprived of potentially favorable evidence simply because a police officer, in his own discretion, chose to turn the recorder on twenty minutes into the interview rather than at the beginning. Exclusion is warranted under these circumstances because the arbitrary failure to preserve the entire conversation directly affects a defendant’s ability to present his defense at trial or at a suppression hearing. Moreover, the exclusion of the defendant’s statement is the only remedy which will correct the wrong that has been done and ‘place the defendant in the same position he or she would have been in had the evidence been preserved and turned over in time for use at trial.’ [Citing case.]
Thus, we conclude that exclusion is the appropriate remedy for an unexcused failure to electronically record an interrogation, when such recording is feasible. A general exclusionary rule is the only remedy that provides crystal clarity to law enforcement, preserves judicial integrity, and adequately protects a suspect’s constitutional rights. The necessity for this strong remedy remains, even when we consider society’s interests in crime prevention and the apprehension of criminal offenders. Exclusion of reliable, yet unrecorded, statements will not occur frequently when compliance is widespread.
Other Alaska Cases
In State v. Amend, 250 P.3d 541, 543, 545 (Alaska Ct. App. 2011), the Court of Appeals of Alaska considered whether a police officer violated the Stephan rule when he failed to record a conversation with a suspect in which the suspect admitted he intended to illegally sell OxyContin tablets. The court held the officer did not violate the Stephan rule, because the Stephan rule requires recordation of custodial interrogations only in places of detention, and the conversation in question took place at the scene of the arrest.
In Bright v. State, 826 P.2d 765, 773-74 (Alaska Ct. App. 1992), the defendant orally confessed during a custodial interrogation, but at trial it was revealed that a portion of the tape was missing, apparently recorded over by mistake; the trial judge found that the officers had acted in good faith. He prohibited the State from introducing testimony during its case in chief of what the defendant said during the entire (partially recorded) interview, and from using what the defendant said during the unrecorded portion for impeachment or in rebuttal. The Court of Appeals affirmed the conviction, finding these sanctions to be adequate, and also observing that the defendant did not claim any specific prejudice from the police failure to preserve the complete recording of his statement. To the same effect, Bodnar v. Anchorage, No. A-7763, 2001 WL 1477922 (Alaska Ct. App. Nov. 21, 2001) (tape failed to operate properly).
In George v. State, 836 P.2d 960, 962 (Alaska Ct. App. 1992), officer Lower did not make a recording of defendant’s custodial interrogation because a functioning tape recorded was not available. The Court of Appeals said:
This fact excuses non-compliance with the Stephan rule. [Citation.] More importantly, Stephan does not prohibit admission of a defendant’s custodial statement ‘if no testimony is presented that the statement is inaccurate or was obtained improperly, apart from violation of the [taping] rule.’ [Citation.] On appeal, George does not contend that, apart from Lower’s failure to record the interview, there was any impropriety in his interview with Lower. Thus, George’s statements to Lower are admissible under Stephan.
See also Butler v. State, No. A-7376, 2001 Alas. App. Lexis 84, at *12 (Alaska Ct. App. Apr. 25, 2001), in which an earlier recording of a custodial interrogation of Butler was not preserved, the Court of Appeals said, “Butler’s failure to allege any inaccuracy in the police investigator’s account of the [earlier] interview is fatal to Butler’s claim for relief.”