Admissibility of Statements from Custodial Interrogations
On October 28, 2015, the Utah Supreme Court announced the promulgation of a new evidentiary rule, governing the admissibility of statements made during custodial interrogations in Utah felony cases. The rule places significant restrictions on the use of such statements, unless police make a recording of the statement available to defense counsel and at trial. The rule took effect January 1, 2016.
Summary of Rule 616
Rule 616 of the Utah Rules of Evidence provides generally that in felony prosecutions, a statement made by a criminal defendant during a custodial interrogation that occurs in a “place of detention” is not admissible against the defendant unless an electronic recording of the statement was created and is made available at trial.
Subsection (b) of the rule makes it clear that this rule “is in addition to” and is not intended to diminish any other requirements of a defendant’s admissions or statements. The “other requirements” referred to should be interpreted as including other rules of evidence as well as Fifth Amendment constitutional protections as interpreted by case law, including the United States Supreme Court decision in Miranda and its progeny.
The rule states, “Except as otherwise provided in Subsection (c) of this rule, evidence of a statement made by the defendant during a custodial interrogation in a place of detention shall not be admitted against the defendant in a felony criminal prosecution unless an electronic recording of the statement was made and is available at trial. This requirement is in addition to, and does not diminish, any other requirement regarding the admissibility of a person’s statements.”
Exceptions that Can Swallow the Rule
While Rule 616 appears to create a broad prohibition on the use of unrecorded statements made during custodial interrogations, the rule also provides a number of exceptions that severely limit the effect of the rule. These exceptions include:
- Statements that were made prior to January 1, 2016;
- Statements that were made during a custodial interrogation that occurred outside Utah and was conducted by officers of a jurisdiction outside Utah;
- Statements that are is offered for impeachment purposes only;
- Statements that were spontaneously made outside the course of a custodial interrogation or made during routine processing or booking of the person;
- Statements made when, before or during a custodial interrogation, the person agreed to respond to questions only if his or her statements were not electronically recorded, provided that such agreement is electronically recorded or documented in writing;
- Statements made when the law enforcement officers conducting the custodial interrogation in good faith failed to make an electronic recording because the officers inadvertently failed to operate the recording equipment properly, or without the knowledge of any of the officers the recording equipment malfunctioned or stopped operating;
- Statements made when the law enforcement officers conducting or observing the custodial interrogation reasonably believed that the crime for which the person was being investigated was not a felony under Utah law;
- Statements made when substantial exigent circumstances existed that prevented or rendered unfeasible the making of an electronic recording of the custodial interrogation, or prevented its preservation and availability at trial.
One More (Very Big) Exception
Rule 616 further provides that the court may allow unrecorded statements to be used at trial if the court finds: first, that the statement has “substantial guarantees of trustworthiness and reliability equivalent to those of an electronic recording;” and, second, that “admitting the statement best serves the purposes of [the rules of evidence] and the interests of justice.”
This final exception is potentially broad enough to eclipse the general rule that unrecorded statements should be excluded. The rule does not define or otherwise explain what kinds of guarantees of trustworthiness and reliability are “equivalent to those of an electronic recording.” The rule also gives no guidance as to how to determine when the admission of an unrecorded statement “best serves . . . the interests of justice.”
Conclusion
The apparent purpose of this rule appears to be to reduce uncertainty relating to the reliability of alleged confessions in criminal cases. But the way that courts choose to interpret this rule could greatly limit its ultimate effect in the criminal justice system.
