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Summary

Iowa has no statute or court rule requiring recording of custodial interrogations.

Supreme Court Ruling

Citation:  State v. Hajtic, 724 N.W.2d 449 (Iowa 2006).

Discussion

In the Hajtic case, the Supreme Court held that a videotape of the defendant’s custodial interview demonstrated that he voluntarily waived his Miranda rights and knowingly confessed to the crime of burglary.  The Court added (724 N.W.2d at 454):

We are aided in our de novo review of this case by a complete videotape and audiotape of the Miranda proceedings and the interrogation that followed. The videotape shows the officer with his side or back to the camera and Hajtic facing the officer and the camera. Hajtic’s sister sat about an arms’ length to his right. Their mother and Hajtic’s six-year-old brother sat behind them in the interrogation room. The officer read out loud a Miranda waiver form, and Hajtic read it for himself. Hajtic said he understood his rights and that he had no questions. He signed the waiver form, which stated that he could ‘read and understand the English language.’ His ability to understand English was confirmed by the videotape of the Miranda proceedings and the questioning that followed. He showed no reluctance to ask questions if he did not understand.

When the officer asked a question confusing to Hajtic, he asked the officer to clarify it, and the officer did so. For the most part, however, the officer’s questions were answered responsively and without any reliance for interpretation by his sister. In fact, during the interview, Hajtic appeared almost oblivious to his sister’s presence. Judging by Hajtic’s actions and responses to the questions, he clearly understood the questions asked.

This case illustrates the value of electronic recording, particularly videotaping, of custodial interrogations….

The Court discussed the rulings of the Supreme Courts of Alaska and Minnesota which require electronic recording of custodial interrogations, and the American Bar Association resolution urging “all law enforcement agencies to videotape the entirety of custodial interrogations of crime suspects…or, where videotaping is impractical, to audiotape the entirety of such custodial interrogations,” and legislatures and courts to enact laws or rules requiring this practice (ABA Report to the House of Delegates, set forth in Part 4 below). The Court said (724 N.W.2d at 456):

We believe electronic recording, particularly videotaping, of custodial interrogations should be encouraged, and we take this opportunity to do so. In this case, the videotape of Hajtic’s confession and the Miranda warnings that preceded it clearly show that he understood the Miranda warnings given to him and the questions asked. Further, there is no indication the officer made improper promises or threats….

In 2007, the Iowa Attorney General wrote in the State Police Association’s publication: “Although the court [in Hajtic] stated that it is ‘encouraging’ the practice of electronic recording, the attorney general’s office believes that the Hajtic decision should be interpreted as essentially requiring this practice.”  (T. Miller, Cautions Regarding Custodial Issues, 39 Iowa Police J. 1, 15 (2007).)  The Attorney General’s 2007 article about the Hajtic case does not have a binding effect on any of the law enforcement agencies in Iowa. He encourages, but does not order, recording of custodial interrogations.

The Iowa Department of Public Safety (DPS) issued a statewide directive, Identifier DOM 23-02-15, to all sworn officers of the State Police, effective January 11, 2007, as a proactive response to State v. Hajtic, which provides (General Order 07- 27):

The purpose of this directive is to establish guidelines and procedures for the electronic recording of custodial interrogations conducted in detention facilities and all [DPS] occupied buildings, including Division of the Iowa State Patrol (ISP) District Offices, and Division of Criminal Investigations (DCI), Division of Narcotics Enforcement (DNE), and Division of State Fire Marshal (SFM) field offices.

III. Policy.  It is the policy of this Department to require the electronic recording of all custodial interrogations conducted by its officers in detention facilities and all [DPS] occupied buildings, when feasible, in order to meet the recommendations set forth by the [Supreme] Court of Iowa. Such electronic recordings facilitate the judicial review process of evaluating the integrity, admissibility and content of conversations between suspects and officers by creating a comprehensive, unbiased and impartial evidentiary record of the interrogation process. This directive does not create statutory or constitutional rights, and the Department does not imply that exclusion of evidence is a remedy for any deviation from the purpose of this document.

V. Procedure.  A. General Requirements.

Officers shall electronically record in their entirety custodial interrogations conducted in detention facilities and buildings occupied by the [DPS]. This includes off- site or other law enforcement agency-controlled buildings or task force offices.  Video and audio recording is preferred.  Audio-only recording is acceptable when video capabilities are unavailable. (Emphasis in original.)

In April, 2009, the DPS issued a second General Order Identifier 01-02.06, Order No. 09-44, relating to “Electronic Recording of Custodial Interrogations,” which reiterates that “Officers will video or audio” record custodial interrogations as defined in DOM 23-02.15.” (Part IV.C.g and E.1.4.c.)

Neither the 2007 nor the 2009 General Orders of the Department of Public Safety are directed to or have a binding effect upon local police and sheriff departments.

In 2009, the Iowa State Bar Association (ISBA) held a meeting of stakeholders, including representatives of major law enforcement agencies, at which it was agreed that the ISBA Criminal Law Section Council would survey law enforcement agencies to assess policies, practices, and capabilities related to recording, using the assistance of law students from the University of Iowa.  The survey was made of 421 law enforcement agencies.  The results, published in December 2011, showed that responses were received from about half (201) of the 421 agencies contacted (using rounded percentages): 50% record all custodial interrogations; 40% do not require that any custodial interrogations be recorded, but instead leave the decision to the discretion of the interrogating officer; and 10% record interrogations of suspects of felonies that are specified by the local department; no information was obtained as to the crimes specified.

In May 2013, the Executive Director of the Iowa County Attorneys Association stated that his organization does not know which departments record and which do not.

The Department of Public Safety, which issued the 2007 and 2009 General Orders, has control over state law enforcement agencies and officers.  The DPS orders do not make provisions for consequences if departments either do not adopt the policies, or adopt them in part, or fail to follow whatever policy is adopted. Hence they amount to no more than recommendations, not mandates, thus leaving it to each department within the Department of Public Safety to determine whether to adopt recording policies, which to adopt, and if adopted the crimes to which the policies will apply.

The DPS does not have control over local police and sheriff departments.  The surveys described above reveal that there is no official information as to the practices of over half of Iowa’s local departments, and half of those that responded to the most recent survey acknowledged they do not record custodial interrogations as recommended by the Attorney General.

Another Iowa Case

State v. Madsen, 813 N.W.2d 714 (Iowa 2012):

We reiterate our admonition in Hajtic encouraging videotaping of custodial interrogations.  Since Hajtic was decided, ‘the use of video recordings as evidence at trial has become a common practice…to further the truth-seeking process.’ [citing People v. Kladis, 960 N.E.2d 1104, 1110, Ill. App. 2011] (also recognizing that videotape ‘objectively document[s] what takes place by capturing the conduct and words of both parties.’)  We also encourage electronic recording of noncustodial interviews when it is practical to do so.

Pending Legislation

On January 1, 2018, Iowa State Senator Joe Bolkcom introduced An Act Relating to Recording Custodial Interrogations in a Criminal or Juvenile Case, S.F. 2024, Ia. Legis. Assemb. § 823 (2018), which was then referred to the Iowa Senate’s Judiciary Committee. If enacted, S.F. 2024 will require the following: 

General rule: “[A] custodial interrogation at a place of detention . . . shall be recorded electronically in its entirety by both audio and video means if the interrogation relates to any crime or delinquent act.” § 823.2.

Circumstances that excuse recording: A custodial interrogation is not required to be recorded electronically where recording is not reasonably feasible; the statement in question is spontaneously made; the suspect refuses to be participate in a recorded interview; the interrogation is conducted in another state in compliance with that state’s law; the law enforcement officer conducting the interrogation reasonably does not believe the individual being interrogated committed an act requiring the interview be recorded; recording the custodial interrogation would jeopardize the safety of a law enforcement officer or put a confidential informant at risk; or there is an equipment malfunction. §§ 823.4-9.

Consequences of an unexcused failure to record: “[T]he court shall consider the failure to record electronically all or part of a custodial interrogation in compliance with section 823.2 as a factor in determining whether a statement made during the custodial interrogation is admissible, including whether it was voluntarily made. If the court admits into evidence a statement made during a custodial interrogation that was not recorded electronically in compliance with section 823.2, the court, on request of the defendant, shall give a cautionary instruction to the jury, unless such an instruction would be confusing or not beneficial to the jury.” § 823.12.

Preservation: “Each law enforcement agency in this state shall establish and enforce procedures to ensure that the electronic recording of all or part of a custodial interrogation is identifiable, accessible, and preserved for a period of three years after the date of the limitation for the commencement of a criminal action as set forth in chapter 802.” § 823.13.

Miscellaneous

Departments we have identified that presently record:

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