Principles of the Law, Policing

The following entry is the Black Letter and Comments of Tentative Draft No. 2, 11.02. Recording of Police Questioning.

The full draft contains Reporters’ Notes. This draft will be presented to membership at the 2019 Annual Meeting for approval. Until approved, this is not the position of The American Law Institute and should not be represented as such.

§ 11.02. Recording of Police Questioning

          Written policies should set out the procedures for the recording of questioning, and for the disclosure and the retention of recorded evidence, and should provide that:

                    (a) absent exigent circumstances, officers should record questioning of suspects in its entirety;

                    (b) officers should record questioning of witnesses whenever feasible; and

                    (c) in situations in which recording is not conducted, officers should document questioning, taking notes contemporaneously when possible, and memorializing conversations immediately thereafter.

Comment:

          a. Recording questioning of suspects. A suspect, or a person who police have reason to believe committed a crime being investigated, may be questioned in a manner that is inherently more accusatory and coercive than the manner in which police question a witness, or a person who police believe has information about a crime. Police may not know whether a person is a witness or also a suspect when they initiate questioning, and when in doubt, they should therefore err on the side of providing the procedures available to suspects. Unless exigent circumstances make it impossible, questioning of suspects should be recorded, in its entirety, including the provision and waiver of Miranda rights. This is essential to ensure a complete record and to prevent any doubt about what happened outside the record. Video recording is preferable. Exigent circumstances might include equipment failure combined with a pressing public-safety need to conduct questioning without delay. Recording may be less feasible in the field, though body-worn cameras may be available for recording purposes. Cost considerations also are relevant, both for police and legal actors, particularly if recording is extended beyond questioning of suspects.

          Suspects should be told that they are being recorded. For some suspects who are not willing to speak if recorded, procedures should make available the option of not recording or using methods to redact video or audio to mask the identity of the witness. Policy and procedure should make available and define such special precautions to officers. Video cameras should be positioned so that the field of view includes both the officer and the person being questioned. Policies, at the agency level or preferably at the state level, should provide procedures for recording interrogations. Such policies should provide clear instructions for stopping and starting the recording. Governments should make resources available to agencies to purchase and maintain equipment needed to record the questioning of individuals.

          b. Recording questioning of witnesses. Questioning of witnesses may sometimes be conducted in less formal settings, but such questioning should be recorded whenever feasible. Witnesses should be told that they are being recorded. As with suspects, there may witnesses who are not willing to speak if recorded and there may be safety and security concerns that counsel redacting video or audio to mask the identity of the witness. Policy and procedure should make available and define such special precautions to officers. When such a recording is not conducted, officers should take notes contemporaneously to provide as accurate and timely a record as possible of what transpired. If there is not a recording, any reporting or memorialization of those conversations similarly should occur immediately after questioning.

          c. Disclosure. Agency policies should set out rules for disclosure of recordings to lawyers in discovery and for storage of archived records.

          d. Retention. As discussed elsewhere in these Principles, clear policies should set out the rules for retention of recorded statements. Such evidence should be retained in a manner designed to be usable in the future, and should not be dependent on technology that is proprietary or likely to be obsolete in a way that might hamper future access.