Arizona has no statute or court rule requiring recording of custodial interrogations.
In 2000, the Attorney General appointed the State of Arizona Capital Case Commission, consisting of 15 members, charged with reviewing the capital punishment process in Arizona in its entirety to ensure that it works in a fair, timely and orderly manner. The Commission filed its Final Report in 2001, which included the following with respect to electronic recording of custodial interrogations (§IV, page 22):
The Commission deliberated regarding the issue of electronic recording of police interrogations. Some states require audio or video recording of interrogations and confessions based on court decision or statute. While there was discussion as to whether the adoption of a recording requirement is best dealt with by voluntary action of law enforcement agencies, the Trial Issues Subcommittee concluded that routine electronic recording of all custodial interrogations and confessions would be a major improvement in criminal procedure and should be encouraged.
Upon recommendation of the Capital Case Commission, the Attorney General’s Office drafted a protocol that was considered and discussed by the Attorney General’s Law Enforcement Advisory Board, which represents police agencies across Arizona. The Advisory Board agreed to submit the protocol to the Arizona Criminal Justice Commission [ACJC] for consideration. The proposed protocol follows:
The Attorney General and the Capital Case Commission strongly recommend that law enforcement officers in Arizona record with audio tape or video tape the process of informing a suspect of his constitutional rights, the waiver of those rights by the suspect, and all questions and answers of that suspect during interrogation whenever feasible.
Under the protocol, if the questioning occurs in a place of detention such as a police department, a sheriff’s substation, or jail, the need for audio or video recording of the interrogation is even more pressing. However, even in these circumstances the discretion of the law enforcement officer is employed and recording should take place whenever feasible.
We have been informed by the Executive Director of the ACJC that there is no record of the protocol having been submitted by the Advisory Board to the ACJC during the period January 1, 2001 through November 2004.
In 2004, the Attorney General sent a written survey to Arizona law enforcement agencies to determine current procedures with regard to recording suspect interviews. The introduction to the survey quotes the Board’s 2002 protocol. Approximately half of Arizona law enforcement departments responded to the survey. 87% reported that all interrogations by detectives were audio recorded, while 10% said that all were not. 71% responded that they had no written rules and procedures regarding taping suspect interviews.
In 2010, the Arizona Justice Project – a volunteer organization devoted to assisting in correcting errors and injustices in the criminal justice system – sent a survey to 40 Arizona law enforcement departments – less than half of the departments in Arizona – requesting information about their practices in recording custodial interrogations. The results of this partial survey were mixed: 38% reported they record all, 40% record more than 75% of the time, and 18% record 50 to 75% of the time.
The Attorney General’s staff advises that they believe most law enforcement agencies in Arizona record custodial interrogations as recommended in the Attorney General’s draft protocol described above. However, there is no official information available as to the recording practices followed in nearly half of Arizona’s departments, and to those that responded to the two surveys, many departments reported that they do not adhere to the draft protocol.
Strong support for Arizona requiring electronic recording of custodial interrogations in serious felony investigations is found in the opinions in the Debra Jean Milke case. See Mroz v. State, Arizona Court of Appeals, No. 1 CA-SA-14-0108 (Dec. 11, 2014), and Milke v. Ryan, 711 F3d 998 (9th Cir. 2013).
In State v. Jones, 49 P.3d 273, 279 (Ariz. 2002), the Supreme Court said:
We are, however, troubled by the fact that this reinitiated conversation was not recorded, while the interrogation that preceded it and the confession that followed were. The fact that the initial waiver was not taped subjected the state to unnecessary problems because it gives rise to suspicion. It would be a better practice to videotape the entire interrogation process, including advice of rights, waiver of rights, questioning, and confessions. This has been recommended by the Arizona Capital Case Commission and more recently by the Illinois Commission on Capital Punishment…. Recording the entire interrogation process provides the best evidence available and benefits all parties involved because, on the one hand, it protects against the admission of involuntary or invalid confessions, and on the other, it enables law enforcement agencies to establish that their tactics were proper.
Departments we have identified that presently record:
|Apache Junction||Mesa||Sierra Vista|
|Casa Grande||Oro Valley||Somerton|
|Coconino CS||Peoria||State Dept of Corrections|
|Gila CS||Pinal CS||Tucson|
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