Summary
Arkansas has a Supreme Court rule requiring recording of custodial interrogations.
Supreme Court Rule
Citation: Ark. R. Crim. P. 4.7.
General Rule: “(a) Whenever practical, a custodial interrogation at a police station, or other similar place, should be electronically recorded.” Recordings may be made by “audiotape or videotape, or digital recording,” and are to be preserved until any related convictions are “final and all direct and post-conviction proceedings are exhausted” or “prosecution for all offenses relating to the statement is barred by law” (c, d).
Circumstances that excuse recording:
The lack of a recording shall not be considered in determining the admissibility of a custodial statement in the following circumstances.
(2) (A) a statement made by the accused in open court at his or her trial, before a grand jury, or at a preliminary hearing, (B) a statement made during a custodial interrogation that was not recorded because electronic recording was not practical, (C) a voluntary statement, whether or not the result of a custodial interrogation, that has a bearing on the credibility of the accused as a witness, (D) a spontaneous statement that is not made in response to a question, (E) a statement made after questioning that is routinely asked during the processing of the arrest of the suspect, (F) a statement made during a custodial interrogation by a suspect who requests, prior to making the statement, to respond to the interrogator’s questions only if an electronic recording is not made of the statement, provided that an electronic recording is made of suspect’s agreeing to respond to the interrogator’s question, only if a recording is not made of the statement, or (G) a statement made during a custodial interrogation that is conducted out-of-state. (3) Nothing in this rule precludes the admission of a statement that is used only for impeachment and not as substantive evidence.
Consequences of unexcused failure to record: “(b) (1) In determining the admissibility of any custodial statement, the court may consider, together with all other relevant evidence and consistent with existing law, whether an electronic recording was made; if not, why not; and whether any recording is substantially accurate and not intentionally altered.”
Discussion: On June 22, 2012, before Rule 4.14 was adopted, the Supreme Court entered a Per Curiam order which recounts, among other things, that the Committee on Criminal Practice had made a proposal to the Court for a recording rule which “does not mandate recording of all custodial interrogations; rather, it allows the trial court to consider the failure to record in determining the reliability of the statement. We are in agreement with this approach, especially as a starting point. Accordingly we adopt Rule 4.7 as set out [above].”
An Arkansas Case
Fricks v. State, 2016 Ark. App. 415, 8, 501 S.W.3d 853, 858 (Ark. Ct. App. 2016): The appellant argued statements he made during a jailhouse interview should have been suppressed because they were not recorded pursuant to Ark. R. Crim. P. 4.7. The Court of Appeals of Arkansas declined to consider the issue since the appellant did not obtain a ruling on it at trial, but noted that Ark. R. Crim. P. 4.7 “does not mandate the recording of all custodial interviews—it says ‘whenever practical.’”
