New Jersey has a Supreme Court rule requiring recording of custodial interrogations.
Supreme Court Rule
Citation: New Jersey Supreme Court Rule 3:17 (2005).
Unless a specified exception is present, all custodial interrogations conducted in a place of detention must be electronically recorded when the person is charged with one of the specified felonies. § (a).
Circumstances that excuse recording
Recording is not required when electronic recording is not feasible; the suspect indicated he/she would participate only if not recorded; and the interrogators have no knowledge that a crime for which a recording is required has been committed. In a pretrial hearing, the State has the burden of proving by a preponderance of the evidence that an exception applies. § (b).
Consequences of unexcused failure to record
“The failure to electronically record a defendant’s custodial interrogation in a place of detention shall be a factor for consideration by the trial court in determining the admissibility of a statement, and by the jury in determining whether the statement was made, and if so, what weight, if any, to give to the statement.” § (d). “In the absence of an electronic recordation required under paragraph (a), the court shall, upon request of the defendant, provide the jury with a cautionary instruction.” § (e).
The jury instructions set forth in an appendix to the rule include the following:
Our rules require the electronic recording of interrogations by law enforcement officers when a defendant is charged with [insert applicable offenses]. This is done to ensure that you will have before you a complete picture of the circumstances under which an alleged statement of a defendant was given, so that you may determine whether a statement was in fact made and accurately recorded. Where there is failure to electronically record an interrogation, you have not been provided with a complete picture of all the facts surrounding the defendant’s alleged statement and the precise details of that statement. By way of example, you cannot hear the tone or inflection of the defendant’s or interrogator’s voices, or hear first hand the interrogation, both questions and responses, in its entirety. Instead you have been presented with a summary based upon the recollections of law enforcement personnel. Therefore, you should weigh the evidence of the defendant’s alleged statement with great caution and care as you determine whether or not the statement was in fact made and if so whether it was accurately reported by State’s witnesses, and what, if any, weight it should be given in your deliberations. The absence of an electronic recording permits but does not compel you to conclude that the State has failed to prove that a statement was in fact given and if so, accurately reported by State’s witnesses.
State v. Anthony, 443 N.J. Super. 553, 557, 558, 562, 570-73, 129 A.3d 1085, 1087, 1088, 1091, 1096–97 (App. Div. 2016): Reginald Anthony was convicted of second-degree conspiracy to commit burglary. At trial, a police officer testified Anthony made an unrecorded, incriminating statement while in custody for an active warrant unrelated to the burglary charge. Anthony appealed his conviction, claiming the trial court “erred by concluding the interrogation did not need to be recorded pursuant to Rule 3:17 . . . until defendant uttered the [incriminating] phrase.” The Superior Court of New Jersey considered how trial courts should determine whether a defendant “was ‘a suspect for the crime to which th[e] statement relates,’ so as to trigger [Rule 3:17’s] recordation requirement.” The court stated “the judge must apply an objective standard that takes into account the totality of the circumstances then known to the interrogator, and decide whether a reasonable police officer in those circumstances had a reasonable basis to believe a defendant was a ‘suspect’ in the crime about which he was being questioned.” The court affirmed Anthony’s conviction, concluding the trial court judge had “implicitly” applied an objective standard.
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