Summary
Wisconsin has a Supreme Court ruling and a statute requiring recording of custodial interrogations.
Discussion
Citations: State v. Jerrell, 699 N.W.2d 110 (Wis. 2005) (juveniles); Wis. Stat. Ann. §§ 968.073 & 972.115 (2005) (juveniles and adults).
Statement of policy
It is the policy of this state to make an audio or audio – visual recording of a custodial interrogation of a person suspected of committing a felony, unless a condition specified in the statute applies, or good cause is shown for not making an audio or audio and visual recording of the interrogation. § 968.073(2).
General rule
Custodial interrogations regarding felonies shall be electronically recorded by both audio and video. “Custodial interrogation” means an interrogation by a law enforcement officer or an agent of a law enforcement agency of a person suspected of committing a crime from the time the suspect is or should be informed of his or her rights to counsel and to remain silent until the questioning ends, during which the officer or agent asks a question that is reasonably likely to elicit an incriminating response and during which a reasonable person in the suspect's position would believe that he or she is in custody or otherwise deprived of his or her freedom of action in any significant way.” The officer is not required to obtain the suspect’s consent to having a recording made. § 972.115(2)(a)-(b).
Circumstances that excuse recording
The conditions which excuse recording include: the suspect refused to respond or cooperate if a recording was made, and the officer made a recording of the suspect’s refusal; the officer in good faith failed to make a recording because the equipment did not function; the officer inadvertently failed to operate the equipment properly; without the officer’s knowledge, the equipment malfunctioned or stopped operating; exigent public safety circumstances existed that prevented the making of a recording, or rendered making a recording infeasible; the officer conducting or observing the interrogation reasonably believed at the outset that the offence for which the suspect was taken into custody or was being investigated was not a felony. § 972.115 (2)(a)(1)-(6).
Consequences of unexcused failure to record
If a statement made by a defendant during a custodial interrogation is admitted into evidence in a felony jury trial, and the court finds that none of the statutory conditions applies that excuse recording, or that no good cause exists for not providing an instruction, “the court shall instruct the jury that it is the policy of this state to make an audio or visual recording of a custodial interrogation of a person suspected of committing a felony, and that the jury may consider the absence of an audio or visual recording of the interrogation in evaluating the evidence relating to the interrogation and the statement in the case..” In a felony bench trial, the court may consider the absence of a recording in evaluating the evidence relating to the interrogation and the statement. § 972.115 2(a)-(b).
Preservation
None given.
Note
As to juveniles, the Jerrell case requires recording when the questioning relates to either felonies or misdemeanors. See State v. Fairconatue, 773 N.W.2d 226 ¶22 n.6 (Wis. Ct. App. 2009). The statute requires electronic recording of both adults and juveniles when custodial interrogations relate to felonies. Both the Jerrell case and the statute require that, to trigger the recording requirement, the person be in custody when the questioning occurs, but neither requires that the person be in a place of detention.
