Much has been written about the need to videotape the entire process of police interrogating suspects. Videotaping discourages abusive interrogation techniques, improves police training in proper techniques, reduces frivolous suppression motions because facts are no longer in dispute, and improves jury decision making about the voluntariness and accuracy of a confession. Despite these benefits, only a small, albeit growing, number of states have adopted legislation mandating electronic recording of the entire interrogation process. In the hope of accelerating legislative adoption of this procedure and of improving the quality of such legislation, the Uniform Law Commission (ULC), formerly the National Conference of Commissioners on Uniform State Laws, ratified a uniform recording statute for consideration by the states. I was the Reporter for this ULC effort. This article, after briefly summarizing the need for the uniform Act and its major provisions, focuses on its most interesting and novel provisions: those affecting remedies if police fail to record when required.

The Act creates a suppression remedy if the failure to record renders the confession “unreliable,” that is, involving too great a risk of its falsity for a jury to rely upon it. Although this remedy is not unheard of, it is unusual, and this article explains and defends this remedial choice. Suppression is, however, not automatic but is subject to a balancing process. The Act also provides for a cautionary jury instruction. This article discusses the strengths and weaknesses of that model, including the unlikelihood that a jury instruction alone can adequately protect the innocent. This article argues for the importance of the availability of the suppression remedy – an option most of the small pool of state legislation has generally rejected – and for the importance of admitting expert testimony on the risks of error inherent in custodial interrogation, especially when it is not recorded. A draft of the Act included such a provision, and this article challenges the policy wisdom of the final Act’s not addressing expert testimony. The Act also mandates police preparation of regulations that must address certain specified subjects and provides mechanisms for police transparency and accountability in the recording process. The Act contains a novel provision protecting police departments from civil liability in this area if they promulgate and adequately enforce reasonable regulations designed to implement the Act but an individual officer nevertheless strays from those mandates. This article defends that choice.

Ultimately, this article concludes that, though the Act is not perfect from a policy perspective, it is an excellent step forward. Moreover, it was drafted via a process involving many stakeholders, paying particular attention to the concerns of law enforcement. The focus here on remedies when police fail to comply with the Act may wrongly create the impression that the Act embodies distrust of law enforcement. To the contrary, the Act is designed to improve law enforcement’s ability to catch the guilty while acquitting the innocent, and many of its novel provisions stem from law enforcement suggestions. Though the Act may be flawed, it offers the best opportunity thus far for promoting continued and wider reform efforts in the states.

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