298 Conn. 537 | Conn. | 2010
Lead Opinion
Opinion
The defendant, Julian J. Lockhart, was convicted, following a jury trial, of murder in violation of General Statutes § 53a-54a (a), felony murder in violation of General Statutes § 53a-54c, robbery in the first degree in violation of General Statutes § 53a-134 (a) (1) and (3) and larceny in the third degree in violation of General Statutes § 53a-124 (a) (1). On appeal,
The jury reasonably could have found the following facts. In May, 2002, the twenty-two year old victim, Robert Glidden, lived in Wallingford and worked as a machinist in Durham. The victim had posted an advertisement in the newspaper offering to sell his 1989 Ford Mustang GT for approximately $6000.
In May, 2002, the defendant lived in Meriden with his mother, and made a living by selling crack cocaine. On May 9, 2002, the defendant and his friend, Leonard Bunch, went to look at the victim’s car. Maria Estrada, a friend of the defendant’s mother, agreed to give the defendant and Bunch a ride in exchange for crack cocaine. During the drive, the defendant or Bunch called the victim to make arrangements to meet and to get directions.
The defendant, Bunch and Estrada drove to the home of the victim’s parents where they met the victim’s mother, Elizabeth Glidden, and followed her down Saw Mill Road to the manufacturing company where the victim was working. Glidden left after introducing the defendant to the victim. After Bunch and the defendant examined the vehicle, the victim took the defendant for a test drive. Bunch and Estrada waited in the parking lot of the manufacturing company for fifteen to thirty minutes, and when the defendant had not returned, began to drive back down Saw Mill Road. As Bunch and
The next day, the defendant called Bunch and told him that he had hit the victim repeatedly and had left him in the woods. He asked for a ride so that he could look for his watch, which he had lost on Saw Mill Road. The defendant later borrowed a car from Bunch’s friend. On May 11, 2002, the defendant again called Bunch to ask for a ride, stating that he wanted to move the victim’s vehicle, which the defendant had parked one block from his mother’s house in Meriden. Bunch agreed and later followed the defendant as he moved the victim’s vehicle to a commuter lot in Cheshire. Bunch observed the defendant wipe his fingerprints off the vehicle with a towel.
On May 12, 2002, the state police received a call from a truck driver who had seen the victim’s vehicle in a news report about the missing victim. He had noticed the victim’s vehicle in the commuter lot, and had observed that it did not have a license plate and that its interior appeared to have been damaged by fire. The following day, the victim’s body was discovered in the woods on the side of Saw Mill Road. The police recovered the defendant’s watch at the crime scene. Following an autopsy, a deputy chief medical examiner for the state concluded that the victim had died as a result of blunt force trauma to the head. On May 13, 2002, after receiving a call from a state police detective, the defendant took a bus from Hartford to New York City.
On June 6, 2003, the defendant was arrested by Georgia authorities in Decatur, Georgia. Although he provided the authorities with a Georgia driver’s license bearing the name Frederick Kelly, they matched his fingerprints to records for Julian Lockhart. On June 18, 2003, two Connecticut state police detectives interviewed the defendant while he awaited extradition. The detectives did not electronically record the interview. The defendant was turned over to the Connecticut state police on July 15, 2003.
The state charged the defendant, by way of information, with one count of murder, one count of felony murder, one count of robbery in the first degree and one count of larceny in the third degree. The defendant entered a plea of not guilty to each count of the information. On April 17, 2006, the defendant filed a motion to suppress the statements he had made to the police while in custody, which the court denied. A jury trial commenced on May 10, 2006, and on June 1, 2006, the jury returned a verdict of guilty as to all counts. Subsequently, the court sentenced the defendant to a total effective term of eighty years incarceration. This appeal followed.
I
The defendant asks us to revisit and overrule our holding in State v. James, 237 Conn. 390, 434, 678 A.2d 1338 (1996), that the due process clause of our state constitution does not require confessions to be recorded in order to be admissible.
The following additional facts are relevant to our resolution of this issue. On April 17,2006, the defendant filed a motion to suppress the statements he had made while in custody on the grounds that they were obtained: (1) without proper advisement and waiver of his Miranda rights; (2) in violation of his right to counsel, which had attached by virtue of the extradition proceedings; and (3) in the absence of authority on the part of the officers who were transporting him to issue Miranda warnings or to conduct a custodial interrogation. On May 15, 2006, the defendant filed a motion in limine, seeking to preclude the state from introducing any oral statements that he had made while in police custody. The defendant argued that the state, by failing to record the defendant’s statement and introducing only portions of the statement, precluded him from offering additional portions of that statement pursuant to § 1-5 (b) of the Connecticut Code of Evidence,
Following a hearing, the court denied both of the defendant’s motions. The court first observed that, in
“[0]ur standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [When] the legal conclusions of the court are challenged, [our review is plenary, and] we must determine whether they are legally and logically correct . . . .” (Internal quotation marks omitted.) State v. Stenner, 281 Conn. 742, 761, 917 A.2d 28, cert. denied, 552 U.S. 883, 128 S. Ct. 290, 169 L. Ed. 2d 139 (2007).
As a preliminary matter, we review our decision in State v. James, supra, 237 Conn. 390. In James, the defendant claimed that the due process provision of article first, § 8, of our constitution requires the police, when feasible, to record electronically confessions, interrogations and advisements of Miranda rights that occur in places of detention in order for the resulting confession to be admissible at trial. Id., 428. We rejected this argument and concluded, on the basis of the factors enumerated in Geisler, that article first, § 8, of the constitution of Connecticut did not require a confession to be recorded as a prerequisite to admissibility. Id., 434. We first acknowledged that “[electronic recording devices are ... a relatively recent technological advancement, and [therefore] the absence of early historical support for their use in the receipt of confessions by the police is of little relevance to our inquiry.” Id., 429. We then noted that although “[o]ther analogous means of verifying the accuracy ... of confessions and waivers of constitutional rights were available . . . at the time of the adoption of our due process clause,” Chief Justice Swift’s commentary on the laws of evidence made no reference to a corroboration requirement for confessions to be admissible at trial. Id., citing Z. Swift, A Digest of the Law of Evidence (1810), p. 131.
Having found no authority to suggest that such a requirement existed at common law, we turned to recent decisions of this court, which revealed no cor
With regard to the decisions of other states, we found that of the states that had considered a similar claim, only two had adopted a recording requirement, and only one of those had adopted the requirement pursuant to the due process provision of its state constitution. Id., 431-32 and n.35; see Stephan v. State, 711 P.2d 1156, 1159 (Alaska 1985) (electronic recording of confessions is required, where feasible, under Alaska constitution’s due process provision); see also State v. Scales, 518 N.W.2d 587, 592 (Minn. 1994) (enacting electronic recording requirement pursuant to supervisory power).
We then considered the public policies relevant to the adoption of a recording requirement. State v. James, supra, 237 Conn. 432. Although we acknowledged that a recording requirement is a “desirable investigative practice, which is to be encouraged”; id., 434; we remained confident in the ability of the trial courts to evaluate the credibility and testimony of each witness with regard to what occurred during the interrogation
In the present appeal, the defendant asks us to revisit and overrule, in part, James and Lapointe. We do not lightly overrule our existing precedent. This court repeatedly has acknowledged that because the doctrine of “[s]tare decisis, although not an end in itself, serves the important function of preserving stability and certainty in the law”; (internal quotation marks omitted) Florestal v. Government Employees Ins. Co., 236 Conn. 299, 305, 673 A.2d 474 (1996); “a court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it.” (Internal quotation marks omitted.) Id. “Stare decisis is justified because it allows for predictability in the ordering of conduct, it promotes the necessary perception that the law is relatively unchanging, it saves resources and it promotes judicial efficiency. ... It is the most important application of a theory of decisionmaking consistency in our legal culture and ... is an obvious manifestation of the notion that decisionmaking consistency itself has normative value.” (Internal quotation marks omit
Turning to the present claim, we first consider “persuasive relevant federal precedents . . . .” (Internal quotation marks omitted.) State v. Rizzo, 266 Conn. 171, 212, 833 A.2d 363 (2003). As the defendant concedes, and our research reveals, there is no federal precedent in support of the proposition that the federal constitution imposes a recording requirement.
With respect to the privilege against self-incrimination within article first, § 8, of the Connecticut constitution, we have declined to construe this provision more broadly than the right provided in the fifth amendment to the United States constitution. State v. Asherman, 193 Conn. 695, 711-15, 478 A.2d 227 (1984) (reviewing history and common-law origins of right against self-incrimination in article first, § 8, of constitution of Connecticut and rejecting defendant’s argument for construing right more broadly than federal provision), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985); accord State v. Castonguay, 218 Conn. 486, 496, 590 A.2d 901 (1991) (declining to depart from Asherman).
The defendant also contends that the right to counsel as guaranteed by our state constitution, mandates that all custodial interrogations be recorded electronically. Because the defendant invokes the right to counsel safeguarded by Miranda, that is, his “right to consult with counsel prior to and during custodial interrogation,” he appears to rely on our state counterpart to the fifth amendment right to counsel.
Finally, with respect to the right to confrontation within article first, § 8, of our state constitution, its language is nearly identical to the confrontation clause in the sixth amendment to the United States constitution. The provisions have a shared genesis in the common law. See Crawford v. Washington, 541 U.S. 36, 43, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) (“[t]he founding generation’s immediate source of the concept [of the right of confrontation] . . . was the common law”); State v. Torello, 103 Conn. 511, 513, 131 A. 429 (1925) (purpose of confrontation clause in state constitution was “to mark, preserve, protect and perpetuate a right existing under the common law”). Moreover, we have acknowledged that the principles of interpretation for applying these clauses are identical. State v. Gaetano, 96 Conn. 306, 310, 114 A. 82 (1921). Therefore, we are not convinced that we should, in this context, construe the confrontation clause of our state constitution to provide greater protections than its federal counterpart.
Accordingly, because the text of the provisions on which the defendant relies makes no reference to a corroboration requirement for the admissibility of confessions and because, according to our case law, those provisions do not provide broader protections than their federal counterparts, these factors do not support the defendant’s claim that a recording requirement is mandated by article first, §§ 8 and 9, of the constitution of Connecticut.
This fifth Geisler factor requires us to examine the persuasive precedents of other state courts. See State v. Rizzo, supra, 266 Conn. 214. Virtually every state that has considered an argument similar to the defendant’s claim has concluded that due process does not require the recording of custodial interrogations.
In rejecting the argument that the due process provision of their state constitution mandates a recording
In light of our conclusion that the similarities between the due process provisions of our state constitution and the federal constitution support a common interpretation; State v. Ledbetter, supra, 275 Conn. 562; we also find persuasive decisions concluding that a recording requirement is not mandated by a state due process clause because the protections of that clause mirror those of the federal counterpart. In rejecting the defendant’s argument that the due process clause of the Kentucky constitution mandated a recording requirement, the Supreme Court of Kentucky noted that it “has never held that the procedural due process protections of [the state constitution] extend beyond the protections” of the federal constitution. Brashars v. Commonwealth,
Finally, we find persuasive the reasoning of courts that have determined that, where a recording requirement is not mandated by the state constitution, the legislature is better suited to decide whether to establish a recording policy. The Supreme Court of Vermont, for example, concluded that “[t]he most appropriate means of prescribing rules to augment citizens’ due process rights is through legislation. ... In the absence of legislation, we do not believe it appropriate to require, by judicial fiat, that all statements taken of a person in custody be tape-recorded.” (Citation omitted.) State v. Gorton, 149 Vt. 602, 606, 548 A.2d 419 (1988). The Supreme Court of Tennessee expressed a similar view, reasoning that because historically, “[t]he determination of public policy is primarily a function of the legislature . . . the issue of electronically recording custodial interrogations is one more properly directed to the General Assembly.” (Citations omitted; internal quotation marks omitted.) State v. Godsey, 60 S.W.3d 759, 772 (Tenn. 2001); see also People v. Raibon, 843 P.2d 46, 49 (Colo. App. 1992) (“[w]e decline . . . to mold our particular view of better practice into a constitutional mandate which would restrict the actions of law enforcement agents in all cases”), cert. denied, 1993 Colo. LEXIS 15 (January 11, 1993); State v. Grey,
Conversely, only the Supreme Court of Alaska has concluded that electronic recording is mandated by the due process clause of its state constitution. In Stephan v. State, supra, 711 P.2d 1159, the court concluded that all custodial interrogations must be electronically recorded whenever feasible, noting that the United States constitution imposes a “heavy burden”; id., 1160; when a defendant claims that his confession is involuntary. The court observed that “[t]he contents of an interrogation are obviously material in determining the voluntariness of a confession”; id., 1161; and reasoned that “recording, in such circumstances, is now a reasonable and necessary safeguard, essential to the adequate protection of the accused’s right to counsel, his right against self incrimination and, ultimately, his right to a fair trial.” Id., 1159-60.
Three other courts have established a recording requirement, in some circumstances, pursuant to their supervisory powers. In State v. Scales, supra, 518 N.W.2d 591-92, the Minnesota Supreme Court
In State v. Cook, 179 N.J. 533, 847 A.2d 530 (2004), the Supreme Court of New Jersey took yet another route. The court first rejected the defendant’s argument that due process requires the recording of all custodial interrogations, stating “[b]ecause there is otherwise fair-minded disagreement concerning the appropriateness of imposing a sweeping requirement of electronic [recording] of custodial statements we hold that [the] defendant’s point of error is not of constitutional dimension.” (Internal quotation marks omitted.) Id., 559. The court then established a committee to study electronic recording of custodial interrogations and to make recommendations regarding a recordation rule; id., 562;
The last Geisler factor requires an examination of the relevant economic and sociological factors as well as public policy. State v. Geisler, supra, 222 Conn. 685; see State v. Stenner, supra, 281 Conn. 762 (sixth Geisler factor focuses on public policy considerations). The defendant, well supported by the amici curiae, contends that electronic recording of interrogations, by creating an accurate and neutral record of what occurred in the interrogation room, would have benefits across the criminal justice system, including protecting defendants from the admission of involuntary confessions and conserving judicial resources by reducing the need
First, and perhaps foremost in the minds of the defendant and amici curiae, recorded interrogations would protect the rights of the accused by creating an objective, renewable record of the interrogation. Commentators argue that an electronic recording is a court’s “best tool” in its voluntariness determination; D. Donovan & J. Rhodes, “Comes a Time: The Case for Recording Interrogations,” 61 Mont. L. Rev. 223, 227 (2000); because “recordings are the only way in which the actual words, actions, tones and other details of interviews may be preserved.” T. Sullivan, “Recording Federal Custodial Interviews,” 45 Am. Crim. L. Rev. 1297, 1306 (2008). Proponents of mandatory electronic recording argue that, particularly in light of the fact that the memory of each witness fades with time, a recording would provide judges and juries with a more
Proponents also argue that a recording would benefit police and prosecutors in cases where the defendant made a valid confession or inculpatory statements. As the Supreme Court of New Hampshire observed, “[listening to a defendant be inculpated by his or her own voice has a persuasive power unrivaled by contradictory testimonial evidence.” State v. Barnett, 147 N.H. 334, 337, 789 A.2d 629 (2001); see T. Sullivan, “The Time Has Come for Law Enforcement Recordings of Custodial Interviews, Start to Finish,” 37 Golden Gate U. L. Rev. 175, 179 (2006) (prosecutors have reported that “proof of confessions or admissions, or evasions and signs of guilty conscience, is immeasurably stronger when established by electronic recordings, rather than by police testimony based on notes, typewritten reports, and testimonial descriptions,” increasing both guilty pleas and prosecutor’s bargaining power with respect to sentencing).
Additionally, advocates of a recording requirement maintain that electronic recordings would protect police officers from false allegations of misconduct or
Commentators also argue that recording interrogations would benefit police by allowing them to focus on the suspect during the interview rather than take notes and because such a practice would provide a record for officers to refer to during an ongoing investigation. See L. Lewis, “Rethinking Miranda: Truth, Lies, and Videotape,” 43 Gonz. L. Rev. 199, 222 (2007-2008). Advocates of recording requirements note that videotaped recordings of interrogations would provide an opportunity for supervisors to evaluate officers and to discipline officers when necessary, and could serve as examples in officer training. M. Thurlow, “Lights, Camera, Action: Video Cameras as Tools of Justice,” 23 J. Marshall J. Computer & Info. L. 771, 811 (2005). Recordings could also help law enforcement officers identify and eliminate interrogation methods that are more likely to lead to false confessions. W. White, “False
Significantly, courts have identified the additional benefit that recording interrogations would conserve judicial resources by assisting in the timely resolution of motions to suppress. More specifically, a recording requirement would reduce the number of pretrial suppression motions based on claims that the Miranda waiver or confession was involuntary. See Commonwealth v. Diaz, 422 Mass. 269, 272, 661 N.E.2d 1326 (1996) (recording would eliminate certain challenges to admissibility and aid in resolution of those challenges). “[C]ourts spend an inordinate amount of time and resources wrestling with such slippery matters.” In re Jerrell C.J., supra, 283 Wis. 2d 170; see also State v. Godsey, supra, 60 S.W.3d 772 (“[t]here can be little doubt that electronically recording custodial interrogations would reduce the amount of time spent in court resolving disputes over what occurred during the interrogation”). Supporters claim that electronic recordings would also be a significant aid to appellate courts dealing with the same nuanced and fact specific issues. See L. Lewis, supra, 43 Gonz. L. Rev. 221 (arguing that increased accuracy at trial level will lessen workload of appellate courts).
There are, however, drawbacks to a recording requirement. The financial cost of purchasing, installing and maintaining electronic equipment, as well as training officers on the proper use of the equipment, would be a significant expenditure. “Police departments,
We reaffirm our statement in James that “the recording of confessions and interrogations generally might be a desirable investigative practice, which is to be encouraged”; State v. James, supra, 237 Conn. 434; particularly in light of the fact that, by creating an objective, complete reviewable record of the interrogation and Miranda warnings, an electronic recording could aid courts in evaluating the reliability and trustworthi
Similarly, the lack of uniformity among the rules created by high courts of other states, either by way of constitutional interpretation or pursuant to their supervisory power, illustrates the variety of ways in which such a policy may be implemented. See, e.g., Stephan v. State, supra, 711 P.2d 1162 (due process clause of state constitution requires that entire custodial interrogation, including advisement of Miranda rights, be recorded); State v. Barnett, supra, 147 N.H. 337-38 (establishing pursuant to supervisory authority that electronic recordings of custodial interrogations are only admissible when defendant’s statement has been recorded in its entirety); State v. Cook, supra, 179 N.J. 562 (establishing committee to study electronic recording of custodial interrogations); In re Jerrell C.J., supra, 283 Wis. 2d 172 (establishing recording requirement for custodial interrogations pursuant to supervisory authority).
In sum, we acknowledge, as does the state, that a requirement that the police record all interrogations could benefit the criminal justice system.
Therefore, we reject the defendant’s claim.
II
The defendant also claims that the trial court improperly allowed the state to elicit testimony from a detec
The record reveals the following additional facts. At trial, Detective Anthony Buglione of the Connecticut state police testified that he and Detective Robert Johnson, also a member of the Connecticut state police, interviewed the defendant on June 18, 2003. Buglione testified that the interview took place at a jail in Atlanta, Georgia, where the defendant was being held. Buglione explained that he had read the defendant his Miranda rights from a blue card, that both he and Johnson had
Buglione further testified that when he asked the defendant if he wanted to speak with the detectives, the defendant stated that he did not know anything about a murder in Connecticut and was not in the state on May 9, 2002, a date that the detectives had not yet mentioned. Buglione testified that the defendant had proceeded to ask and answer questions regarding the murder investigation. According to Buglione, after the defendant stated that if anybody saw him at the crime scene or killing anyone, they would be lying, the interviewed ended. Buglione testified that he had asked the defendant if he would provide a written statement, which the defendant declined to do.
The prosecutor then asked Buglione if the defendant had asked the detectives about the status of the investigation. Buglione testified that the defendant had asked whether Bunch had been arrested, that he then told the defendant that Bunch was only a suspect at that time, and asked the defendant if he had any information about Bunch. Buglione explained that the defendant had stated that “he wasn’t a snitch . . . [and] wouldn’t say anything else.”
The prosecutor asked Buglione to characterize the defendant’s demeanor as well as his own demeanor and that of Johnson during the interview. Buglione testified that the defendant was “arrogant” and that he and John
Because the defendant’s claim is unpreserved, he seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).
“In Doyle [v. Ohio, supra, 426 U.S. 610] . . . the United States Supreme Court held that the impeachment of a defendant through evidence of his silence following his arrest and receipt of Miranda warnings violates due process. The court based its holding [on] two considerations: First, it noted that silence in the wake of Miranda warnings is insolubly ambiguous and consequently of little probative value. Second and more importantly], it observed that while it is true that the Miranda warnings contain no express assurance that
This court has recognized that it is also fundamentally unfair and a deprivation of due process for the state to use evidence of the defendant’s post-Miranda silence as affirmative proof of guilt; State v. Kirby, 280 Com. 361, 400, 908 A.2d 506 (2006); and has noted that post-Miranda silence mder Doyle “does not mean only muteness; it includes the statement of a desire to remain silent, as well as of a desire to remain silent mtil an attorney has been consulted. Wainwright v. Greenfield, supra, 474 U.S. 295 n.13.” (Internal quotation marks omitted.) State v. Cabral, supra, 275 Com. 524.
This court has also recognized that “[references to one’s invocation of the right to remain silent [are] not always constitutionally impermissible . . . [and are] allowed ... in certain limited and exceptional circumstances.” (Citation omitted; internal quotation marks omitted.) State v. Alston, supra, 272 Com. 441. Specifically, the state is permitted “some leeway in
The defendant claims that Buglione’s testimony regarding his refusal to sign the blue card constituted an impermissible reference to his assertion of his right to remain silent. Specifically, the defendant relies on the decisions of this court in which we have concluded that the invocation of the right to remain silent includes conduct that conveys silence. See, e.g., State v. Jones, 215 Conn. 173, 183-84, 575 A.2d 216 (1990) (defendant invoked right to remain silent when, after receiving Miranda rights, he refused to sign previously transcribed statement). In the present case, however, the defendant’s refusal to sign the blue card was not an invocation of his right to remain silent. Significantly, the defendant refused to sign the card, but then began speaking with the detectives. As a result, “[t]he Doyle decision ... is not applicable to [these] facts .... The crucial distinction is that, here, the defendant did not remain silent after he was . . . advised of his rights. After being given Miranda warnings, the defendant clearly chose to [forgo] his right to remain silent.” State v. Talton, 197 Conn. 280, 295, 497 A.2d 35 (1985); see also State v. Kirby, supra, 280 Conn. 401 (testimony that defendant stated that he did not want to deal with filling out paperwork and that he “ ‘knew what he had done was wrong’ ” did not constitute Doyle violation because defendant did not invoke right to remain silent); State v. Joly, 219 Conn. 234, 257, 593 A.2d 96 (1991) (“[A] defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent. . . . Rather than relying on the implicit
We similarly may resolve the defendant’s claim that Buglione’s testimony that, when asked about Bunch, the defendant had stated that he was not a “snitch” and “wouldn’t say anything else” was an impermissible reference to the defendant’s post-Miranda silence. Specifically, the defendant argues that these statements were part of his assertion of his right to remain silent by ending the interrogation. The record, however, is unclear as to when during the interview the defendant made these statements. The testimony about which the defendant complains was elicited as follows:
“[The Prosecutor]: And did [the defendant] say anything else about the case?
“[Buglione]: At that particular point, we really didn’t talk about it anymore. I asked him if he’d want to provide a written statement. He said no, he wouldn’t provide anything in writing.
“[The Prosecutor]: How long did that conversation last?
“[Buglione]: Ten minutes.
“[The Prosecutor]: Did he ask you about the status of your investigation?
“[Buglione]: He asked us if [Bunch] was also getting arrested. We told him no, he was the only suspect in the matter at this time.
“ [The Prosecutor]: And was there a further discussion about [Bunch]?
“[Buglione]: We asked him if he had information about [Bunch], if he played a part in this crime. [The*584 defendant] said he wasn’t a snitch, he wouldn’t say anything else.”
“By speaking, the defendant has chosen unambiguously not to assert his right to remain silent. He knows that anything he says can and will be used against him and it is manifestly illogical to theorize that he might be choosing not to assert the right to remain silent as to part of his exculpatory story, while invoking that right as to other parts of his story. While a defendant may invoke his right to remain silent at any time, even after he has initially waived his right to remain silent, it does not necessarily follow that he may remain selectively silent.” (Internal quotation marks omitted.) State v. Bell, 283 Conn. 748, 767, 931 A.2d 198 (2007), quoting State v. Talton, supra, 197 Conn. 295. Because we do not know when, during the course of the interview, the defendant made these statements, we cannot treat them as an assertion of his right to remain silent in view of the fact that he initially waived his Miranda rights by speaking with the detectives. See State v. Lytell, 206 Conn. 657, 662-63, 539 A.2d 133 (1988) (no Doyle violation when detective testified regarding defendant’s refusal to provide names of alibi witnesses because refusal occurred after defendant had waived Miranda rights and spoken to police, but prior to defendant’s termination of interrogation). Moreover, because the defendant may not remain “ ‘selectively silent’ State v. Bell, supra, 767; testimony describing his refusal to discuss Bunch did not violate his constitutional rights.
The defendant further argues that the state violated Doyle when Buglione testified that the defendant had declined to give a written statement and thereafter ended the interview. We disagree. In State v. Kirby, supra, 280 Conn. 397, a police officer testified that after the defendant had made a statement, the officer again explained the Miranda rights form to him. In response, the defendant “just bowed his head and closed his
Finally, the defendant argues that the state improperly elicited testimony that the defendant’s demeanor during the interview was arrogant because this description was an impermissible use of the defendant’s invocation of his right to remain silent. The defendant relies on our conclusions in State v. Montgomery, 254 Conn. 694, 759 A.2d 995 (2000), and State v. Plourde, 208 Conn. 455, 545 A.2d 1071 (1988), cert. denied, 488 U.S. 1034, 109 S. Ct. 847, 102 L. Ed. 2d 979 (1989), that the state had violated Doyle by introducing testimony describing a defendant’s nonverbal actions and demeanor. Those cases, however, are distinguishable from the matter before us.
In Montgomery, the state introduced testimony that the police officer’s interview of the defendant ended when tears welled up in the defendant’s eyes and he signaled for a nurse to terminate the interview. State v. Montgomery, supra, 254 Conn. 712. Similarly, in Plourde, a detective testified that he ceased interrogation when the defendant became visibly shaken and stated that he wanted to call his attorney. State v. Plourde, supra, 208 Conn. 464-65. In both of these cases,
The judgment is affirmed.
In this opinion ROGERS, C. J., and ZARELLA and GRUENDEL, Js., concurred.
The defendant appealed directly to this court pursuant to General Statutes § 51-199 (b), which provides in relevant part: “The following matters shall be taken directly to the Supreme Court ... (3) an appeal in any criminal action involving a conviction for a capital felony, class A felony, or other felony, including any persistent offender status, for which the maximum sentence which may be imposed exceeds twenty years . . . .”
See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1996).
In James, the defendant had claimed that his right to due process under the constitution of Connecticut was violated by the admission of his written confession. State v. James, supra, 237 Conn. 428. Our ruling, however, encompassed all interrogations and confessions, and is therefore applicable to the present case, in which the defendant challenges the admission of the statements he made orally during his interrogation. See id., 434.
Article first, § 8, of the constitution of Connecticut provides in relevant part: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel ... to be confronted by the witnesses against him; to have compulsory process to obtain witnesses in his behalf .... No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law . . . .”
Article first, § 9, of the constitution of Connecticut provides: “No person shall be arrested, detained or punished, except in cases clearly warranted by law.”
Section 1-5 (b) of the Connecticut Code of Evidence provides: “When a statement is introduced by a party, another party may introduce any other part of the statement, whether or not otherwise admissible, that the court determines, considering the context of the first part of the statement, ought in fairness to be considered with it.”
Our conclusion that federal precedent does not support a mandatory recording requirement is dispositive of the defendant’s claim that the fifth, sixth and fourteenth amendments to the United States constitution require that all interrogations, advisement of Miranda rights and resulting statements made by the defendant be recorded. Ordinarily, we would not consider this claim because the defendant has failed to provide an analysis separate from his state constitutional claim. Because the federal constitutional guarantees always serve as a floor below which we cannot go, however, our analysis of the defendant’s state claim logically includes consideration of any federal claim the defendant may have raised. See State v. Ledbetter, supra, 275 Conn. 560.
See, e.g., United States v. Meadows, 571 F.3d 131, 147 (1st Cir.) (“no federal constitutional right to have one’s custodial interrogation recorded”), cert. denied, 558 U.S. 1018, 130 S. Ct. 569, 175 L. Ed. 2d 394 (2009); United States v. Tykarsky, 446 F.3d 458, 477 (3d Cir. 2006) (“[w]hatever the merits of the policy arguments in favor of requiring the recording of interrogations may be, it is clear that such recording is not mandated by the United States [constitution”); United States v. Williams, 429 F.3d 767, 772 (8th Cir. 2005) (constitution does not mandate that police record advisement and waiver of Miranda rights); United States v. Cardenas, 410 F.3d 287, 296 (5th Cir. 2005) (“[n]either this court nor the Supreme Court . . . has ever held that such a requirement is necessary to comply with the [f]ifth [a]mendment’s protection against seh-incrimination”); United States v. Montgomery, 390 F.3d 1013, 1017 (7th Cir. 2004) (Miranda does not require electronic recording of all interrogations), cert. denied, 544 U.S. 968, 125 S. Ct. 1750, 161 L. Ed. 2d 614 (2005); United States v. Torres-Galindo, 206 F.3d 136, 144 (1st Cir. 2000) (no merit to defendant’s claim that fifth amendment rights were violated by law enforcement’s practice of not recording confessions); Trice v. Ward, 196 F.3d 1151, 1170 (10th Cir. 1999) (no Supreme Court precedent or any other court precedent to support defendant’s argument that police were required to electronically record entire interrogation), cert. denied, 531 U.S. 835, 121 S. Ct. 93, 148 L. Ed. 2d 53 (2000); United States
The fifth amendment to the United States constitution provides in relevant part: “No person shall be . . . compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, orproperty, without due process of law . . . .”
The fourteenth amendment to the United States constitution, § 1, provides in relevant part: “No State shall . . . deprive any person of life, liberty or property, without due process of law . . . .”
Article first, § 8, of the state constitution; see footnote 4 of this opinion; safeguards, inter alia, the right to counsel and has its counterpart in the rights to counsel guaranteed by the fifth and sixth amendments to the federal constitution. The United States Supreme Court has explained that the sixth amendment right to counsel is analytically distinct from the fifth amendment right created by Miranda. Rhode Island v. Innis, 446 U.S. 291, 300 n.4, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980). In his motion to suppress the statements
On appeal, however, the defendant appears to rely solely on the state constitutional right to counsel insofar as it safeguards his Miranda right to consult with counsel prior to and during custodial police interrogation. In other words, the defendant relies on the state constitutional right to counsel that corresponds to the fifth amendment right to counsel. Accordingly, we address the merits of the defendant’s claim that his right to counsel derived from the state counterpart to the fifth amendment right to counsel mandates a recording requirement.
To the extent that the defendant’s argument on appeal could be construed as raising a claim pursuant to the state constitutional right to counsel that corresponds to the sixth amendment right to counsel, that claim would be unavailing. The trial court properly concluded that the defendant’s sixth amendment right to counsel had not attached at the time that the defendant made the statements because adversarial proceedings had not begun until the defendant had been presented in court. Although the defendant did not file a motion for reconsideration or a motion for articulation following the court’s ruling, his claim would be reviewable pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), because the record is adequate for review and the claim is of constitutional magnitude. As we already have stated, however, the trial court properly concluded that the sixth amendment right to counsel had not yet attached. See Kirby v. Illinois, supra, 406 U.S. 689; State v. Stenner, supra, 281 Conn. 766.
Those states are: Alabama; Arizona; Arkansas; California; Colorado; Florida; Georgia; Hawaii; Idaho; Illinois; Indiana; Iowa; Kansas; Kentucky;
The rule established by the New Jersey Supreme Court also provides that the trial court should consider the unexcused failure to record a custodial interrogation when determining whether the state may introduce testimony describing the interrogation. N.J. Court Rules 3:17 (d). Additionally, the court is required to give the jury a cautionary instruction in such cases; N.J. Court Rules 3:17; and a report issued by the New Jersey Supreme Court Special Committee on Recordation of Custodial Interrogations in 2005 recommended an instruction that the jury has “not been provided with a complete picture of all of the facts surrounding the defendant’s alleged statement and the precise details of that statement.”
Similarly, the Supreme Judicial Court of Massachusetts, after declining to make the electronic recording of the defendant’s interrogation a prerequisite to the admissibility of his statement, concluded that defendants are entitled to a cautionary instruction regarding the use of an interrogation when the interrogation was not reliably preserved by a complete electronic recording. Commonwealth v. DiGiambattista, 442 Mass. 423, 447-49, 813 N.E.2d 516 (2004).
At least one commentator has argued, however, that a fact finder can no better “ ‘see’ ” coercion in a filmed confession than when that confession is described by testimony. J. Silbey, “Videotaped Confessions and the Genre of Documentary,” 16 Fordham Intell. Prop. Media & Ent. L.J. 789,802 (2006).
The concurrence makes an impassioned plea for the point that no one in the majority disagrees with, namely, that the recording of confessions is desirable as an aid in evaluating the reliability and trustworthiness of confessions to increase the accuracy and efficiency of judicial proceedings, which we would welcome. State v. James, supra, 237 Conn. 434. The concurrence supports its argument, in part, with material not in the record, much of which would be inadmissible hearsay, from the Internet and other sources such as the Chicago Tribune, MSN.com and AOL.com. The disagreement then is whether this court should mandate recording and under what terms and conditions. For the reasons set forth fully in this opinion, we believe that this is not an appropriate use of our supervisory powers at this time and a potential usurpation of a legislative initiative presently under way. See Public Acts 2008, No. 08-143, § 2 (a) (2) (P.A. 08-143) (pilot program to record interrogations). In February, 2009, the Advisory Commission on Wrongful Convictions filed a report, pursuant to P.A. 08-143, with the General Assembly regarding the pilot program to electronically record interrogations. See State of Connecticut Advisory Commission on Wrongful Convictions, Report of the Advisory Commission on Wrongful Convictions (February, 2009), available at http://www.jud.ct.gov/Committees/wrongfulconviction/ WrongfulConvictionComm_Report.pdf (last visited September 29,2010). The General Assembly has not yet acted on the report.
The discussion of the Supreme Judicial Court of Massachusetts concerning the complexity of deciding the parameters of a recording requirement illustrates the point: “Although appealing in its superficial simplicity (and unquestionably an effective method of convincing law enforcement officials to adopt recording as a standard practice), we still decline to impose such a rule. Among other problems, adoption of a rule excluding evidence of unrecorded interrogations necessitates precise identification of what interrogations will be subject to that rule — does it cover only custodial interrogations, or should it also cover any noncustodial interrogation conducted in particular locations (e.g., at police stations)? If the requirement were to be premised on the custodial (as opposed to noncustodial) nature of the interrogation, what do we do with interrogations that start out as noncustodial but arguably become custodial at some later (and often disputed) point during questioning? A rule of exclusion would also have to allow for justifiable failures to record — e.g., equipment malfunction, or the suspect’s refusal to allow recording (or insistence that the tape recorder be turned off at a particular point during the interrogation). . . . With regard to a suspect
The Supreme Court of New Hampshire, in contrast, responded to the defendant’s claim that interrogations must be electronically recorded by using its supervisory authority to impose a rule that tape-recorded interrogations are admissible only when the defendant’s statement is recorded in its entirely “[t]o avoid the inequity inherent in admitting into evidence the selective recording of a post-Miranda. interrogation . . . ." State v. Barnett, supra, 147 N.H. 337.
As we have discussed previously, the requirement might be imposed only with respect to defendants charged with particular classifications of crimes, such as felonies. In the alternative, such a rule could apply in all circumstances.
Such a rule could also, as we have discussed, have negative repercussions for the administration of justice. In this regard, we emphasize the important difference between a constitutionally mandated rule that all interrogations must be recorded, and a policy, adopted by the police departments of this state, that recordings must be made whenever feasible and whenever such recording would not inhibit law enforcement agents from obtaining a confession by other constitutionally permissible means.
Pursuant to State v. Golding, supra, 213 Conn. 239-40, a defendant can prevail on an unpreserved claim of constitutional error only if each of four conditions are met: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.”
The defendant relies on State v. Jones, supra, 215 Conn. 183, in which the state elicited testimony that on the day of the defendant’s arrest, he gave a statement to a police officer claiming that he did not attack the victim. The statement was transcribed and presented to the defendant the next day. Id. The officer read the defendant his rights, and the defendant signed an acknowledgment of those rights, but he refused to sign the transcribed statement. Id. In addition to this testimony, the prosecutor referred to the defendant’s refusal to sign the statement twice in his closing argument in order to impeach the defendant and attack his credibility. Id. We concluded that the testimony regarding the defendant’s refusal to sign the statement was elicited in violation of Doyle because when, after receiving his Miranda rights, the defendant “chose not to sign his statement . . . [h]e . . . clearly manifested his exercise of his right to remain silent.” Id., 184. In contrast, the defendant in the present case waived his right to remain silent by speaking with the detectives and, thereafter, refused to sign a written statement, invoked his Miranda rights and ended the interview. The testimony regarding the defendant’s refusal to sign the statement was elicited to explain the course of events and investigative efforts of the police. The prosecutor referred to the blue card generally in his closing argument and subsequently suggested that the defendant had been untruthful when speaking with the police, but did not specifically comment on the defendant’s refusal to sign a written statement. In contrast, the impermissible testimony in Jones was not elicited to explain the course of events following the defendant’s admissible statements. Id., 183. Moreover, the testimony was not an isolated reference to the defendant’s post-Miranda silence, rather it was used during the closing argument to suggest that the defendant was not credible. Id., 183-84. It is therefore inapposite to the present case.
Concurrence Opinion
concurring. I disagree with the majority’s refusal to exercise this court’s inherent supervisory authority over the administration of justice
I
The value in recording interrogations is so obvious as to require little discussion. When a confession
In recent years, the critical importance of recording interrogations has become even clearer due to an increasing awareness of the phenomenon of false confessions. According to the Innocence Project, a national litigation and public policy organization affiliated with the Benjamin N. Cardozo School of Law of Yeshiva University, “[f]or many reasons — including mental health issues and aggressive law enforcement tactics— innocent people sometimes confess to crimes they did not commit.” Innocence Project, “False Confessions and Mandatory Recording of Interrogations,” available at http://www.innocenceproject.org/fix/False-Confes-sions.php (last visited September 27, 2010). “While it can be hard to understand why someone would falsely confess to a crime, psychological research has provided some answers — and DNA exonerations have proven that the problem is more widespread than many people think. In approximately 25 [percent] of the [cases
Although falsely confessing to a crime seems highly counterintuitive to most people, “[a] variety of factors can contribute to a false confession during a police interrogation.” Innocence Project, “False Confessions,” available at http://www.innocenceproject.org/under-stand/False-Confessions.php (last visited September 27, 2010). They include duress, coercion, intoxication, diminished capacity, mental impairment, ignorance of the law, fear of violence, the actual infliction of harm, the threat of a harsh sentence, and a misunderstanding of the situation. Id. “Confessions obtained from juveniles are often unreliable — children can be easy to manipulate and are not always fully aware of their situation. [Sometimes] [c]hildren and adults both are . . . convinced that that they can ‘go home’ as soon as they admit guilt.” Id. “People with mental disabilities . . . often falsely [confess] because they are tempted to accommodate and agree with authority figures.” Id. “Regardless of the age, capacity or state of the confes
“One of the most publicized examples of the system’s failure to protect innocent confessors is the [New York City] Central Park jogger case. Five young men between the ages of fourteen and sixteen were convicted of the 1989 beating and rape that left the twenty-eight-year-old victim hospitalized for six weeks. Because the victim was incapable of identifying her attackers, the prosecution’s case relied primarily on the youths’ confessions .... [I]n January of 2002, Matías Reyes, while serving time for another 1989 rape and murder, confessed to the brutal attack, and DNA testing confirmed his story.
“So why, one might ask, did five innocent teenagers confess to a crime they didn’t commit? Perhaps twenty-eight hours of custodial detention, coupled with a host of interrogation techniques were at the root of the teenagers’ decision to confess.”
Thus, as one authoritative source has explained, “[s]ocial psychologists, criminologists, sociologists, legal scholars, and independent writers have documented so many examples of interrogation-induced false confession in recent years that there is no longer any dispute about their occurrence. Nevertheless, there is good reason to believe that the documented cases of interrogation-induced false confession understate the true nature and extent of the phenomenon. Most false confessions are not easily discovered and are rarely publicized: they are likely to go unnoticed by researchers, unacknowledged by police and prosecutors, and unreported by the media. As many have pointed out, the documented cases of interrogation-induced false confession are therefore likely to represent only the tip of a much larger iceberg.
“Indeed, the data . . . suggest that interrogation-induced false confession may be a bigger problem for the American criminal justice system than ever before. Although we do not presently know the frequency with which police elicit confessions from the innocent, researchers have discovered and documented far more cases of false confession in recent years than in any previous time period.” S. Drizin & R. Leo, “The Problem of False Confessions in the Post-DNA World,” 82 N.C. L. Rev. 891,921 (2004); see id., 891-92 (analyzing “demographic, legal, and case-specific descriptive data from . . . 125 [documented] cases” of interrogation induced false confessions and recommending mandatory elec
It is apparent, therefore, that a recording requirement would dramatically reduce the number of wrongful convictions due to false confessions, and it also would protect against the use of confessions that are involuntary and, therefore, inherently unreliable. Because a confession constitutes such persuasive evidence of guilt, the value of having a recording of that confession and the interrogation that leads to it cannot be overstated.
II
The majority makes several arguments in support of its rejection of the defendant’s claim that this court should adopt a recording requirement under its supervisory powers. They are: (1) this court’s supervisory authority is reserved for issues of the “ ‘utmost seriousness,’ ”
The majority’s first assertion, namely, that the issue presented is not sufficiently serious to warrant this court’s use of its supervisory powers, cannot withstand even the most cursory examination. Indeed, I submit that there are few issues of greater importance to the perceived fairness and integrity of our criminal justice system than the voluntariness and reliability of confessions. As this court has observed, confessions represent “the most damaging evidence of guilt . . . .” (Citation omitted.) State v. Ruth, 181 Conn. 187, 199, 435 A.2d 3 (1980); see also State v. Patterson, 276 Conn. 452, 473, 886 A.2d 777 (2005) (“evidence regarding an accused’s admission of guilt generally is extremely important to the state and damaging to the accused”); Commonwealth v. DiGiambattista, 442 Mass. 423, 446, 813 N.E.2d 516 (2004) (“[t]here is no dispute that the evidence of a defendant’s alleged statement or confession is one of the most significant pieces of evidence in any criminal trial”); B. Garrett, supra, 62 Stan. L. Rev. 1054-57, 1068-90 (discussing numerous cases of false confessions that represented central evidence at trial, which resulted in conviction). “Studies suggest that police-induced false confessions appear to occur primarily in the more serious cases, especially homicides and other high-profile felonies . . . .” (Internal quotation marks omitted.) B. Garrett, supra, 1065. It therefore is critically important, both to the state and to the defendant, that the fact finder be provided with an accurate depiction of all of the relevant circumstances surrounding the confession. “When there is a complete recording of the entire interrogation that produced such a statement or confession, the fact finder can evaluate its precise contents and any alleged coercive influences that may have produced it. ” Commonwealth v. DiGiam-battista, supra, 446.
The dismissive view of the majority notwithstanding, it is impossible to ignore the seriousness of the issue.
“Although there are undoubtedly cases [in which] the testimony on one side or the other is intentionally false, dishonesty is not our main concern. Human memory is often faulty — people forget specific facts, or reconstruct and inteipret past events differently.
“It is not because a police officer is more dishonest than the rest of us that we . . . demand an objective recordation of the critical events. Rather, it is because we are entitled to assume that he is no less human— no less inclined to reconstruct and interpret past events in a light most favorable to himself — that we should not permit him to be a judge of his own cause. [Y. Kamisar, “Forward: Brewer v. Williams—A Hard Look at a Discomfiting Record,” 66 Geo. L.J. 209, 242-43 (1977).] . . .
“In the absence of an accurate record, the accused may suffer an infringement [on] his right to remain silent and to have counsel present during the interrogation. Also, his right to a fair trial may be violated, if an illegally obtained, and possibly false, confession is subsequently admitted. An electronic recording, thus, protects the defendant’s constitutional rights, by providing an objective means for him to corroborate his testimony concerning the circumstances of the confession.” (Citations omitted; internal quotation marks omitted.) Stephan v. State, 711 P.2d 1156, 1161 (Alaska 1985). Furthermore, “[without a contemporaneous record of the interrogation, judges are forced to rely
Of course, recordings do not protect only the accused. “[A] recording also protects the public’s interest in honest and effective law enforcement, and the individual interests of those police officers wrongfully accused of improper tactics. A recording, in many cases, will aid law enforcement efforts, by confirming the content and the voluntariness of a confession, when a defendant changes his testimony or claims falsely that his constitutional rights were violated.” Stephan v. State, supra, 711 P.2d 1161; see also Gasper v. State, 833 N.E.2d 1036, 1041 (Ind. App.) (“[t]here can be little doubt that the electronic recording of a custodial interrogation benefits all parties involved”), transfer denied, 841 N.E.2d 190 (Ind. 2005); R. Leo, “The Impact of Miranda Revisited,” 86 J. Crim. L. & Criminology 621, 692 (1996) (“[Electronically recording custodial interrogations promotes the goals of truth-finding, fair treatment, and accountability in the legal process. By
It is readily apparent, therefore, that the important issue presented by the defendant’s claim is precisely the kind of issue that warrants the invocation of this court’s supervisory powers. “We ordinarily invoke our supervisory powers to enunciate a rule that is not constitutionally required but that we think is preferable as a matter of policy.” State v. Ledbetter, 275 Conn. 534, 578, 881 A.2d 290 (2005), cert. denied, 547 U.S. 1082, 126 S. Ct. 1798, 164 L. Ed. 2d 537 (2006). “Under our supervisory authority, we have adopted rules intended to guide the lower courts in the administration of justice in all aspects of the criminal process”; (internal quotation marks omitted) State v. Valedon, 261 Conn. 381, 386, 802 A.2d 836 (2002); and on the civil side, as well. Thus, this court has exercised its supervisory authority over a wide variety of matters,
The majority next asserts that, because a recording requirement would affect the conduct of nonjudicial actors, that is, the police, adopting such a rule might exceed the proper scope of this court’s supervisory powers. This claim also lacks merit. As the Supreme Judicial Court of Massachusetts has explained, “[t]hose opposing the imposition of any requirement that interrogations be recorded contend that, whatever the benefits of recording, it is beyond [a] court’s power to regulate the activities of law enforcement [officials], and that attempts to do so would violate the separation of powers. . . . The issue, however, is not what we ‘require’ of law enforcement [officials], but how and on what conditions evidence will be admitted in . . . [court], [The court] retain[s] as part of [its] superintendence power the authority to regulate the presentation of evidence in court proceedings. The question ... is whether and how [the court] should exercise that power with respect to the introduction of evidence concerning interrogations.” (Citation omitted.) Commonwealth v. DiGiambattista, supra, 442 Mass. 444-45; see also In re Jerrell C.J., supra, 283 Wis. 2d 168 (“[The petitioner] is not asking [the] court to regulate police practice. Rather, he is requesting a rule governing the admissibility of a . . . confession into evidence. This would not make it illegal for [the] police to interrogate [suspects] without a recording. Instead, it would render the unrecorded interrogations and any resultant written confession inadmissible as evidence in court [under certain
In light of the nature of the interests involved, the fact that a recording requirement will affect the conduct of the police in no way militates against adopting such
The majority further asserts that its refusal to adopt a recording requirement is justified due to the financial costs of “purchasing, installing and maintaining [the necessary] electronic equipment” and “training officers on the proper use of [that] equipment . . . .” This contention also is meritless. Many police departments already have the necessary recording equipment but choose to use it only selectively. With respect to those departments that would have to purchase recording equipment, however, the cost of doing so would be extremely modest, and when that cost is considered in light of the substantial benefits, both quantifiable and otherwise, that result from a recording requirement, it is de minimis. “The issue of financial cost . . . has not been identified as a significant obstacle to recording interrogations. To the extent that there are some police departments or law enforcement agencies that do not already have recording equipment, the cost of the equipment is minimal, and that cost is dwarfed by . . . the
If the use of audio and video recording equipment was commonplace in Alaska in 1985, it is positively ubiquitous in Connecticut today. Indeed, there is hardly a teenager who does not have some type of electronic recording device available to him or her at virtually every moment of the day.
The majority also contends that “[requiring the police to record all confessions and interrogations in places of detention might severely inhibit the police in pursuing, by constitutionally valid methods, confession evidence”; (emphasis added; internal quotation marks omitted); including the use of trickery and deceit when necessary to induce a confession.
Thus, “[d] espite initial reluctance on the part of law enforcement personnel, actual experience with recording of interrogations has confirmed that the benefits expected from the procedure have indeed materialized, and most of those benefits ultimately inure to the prose
Indeed, “[t]he law enforcement personnel who oppose recording custodial interviews are almost invariably those who have never attempted to do so. They speculate about potential, hypothetical problems, whereas those who have recorded for years do not express similar misgivings.
Finally, even if there were some factual or experiential basis for the majority’s assertion that a recording requirement might inhibit police with respect to the techniques they use in obtaining confessions, “[t]his is an unacceptable objection. . . . [L]aw enforcement personnel [are expected] to give complete and truthful testimony, including candid descriptions of what occurred during custodial interrogations. Surely [it is] not suggested] [that police] should be free to modify or omit facts when testifying under oath about what happened during unrecorded interviews.” T. Sullivan,
The majority further contends that this court should refrain from adopting a recording requirement because of the purported difficulty in establishing the parameters of any such rule. Of course, not all states that mandate the recording of interrogations take precisely the same approach with respect to the requirements of the rule, including which portions of the interrogation procedure must be recorded
Finally, the majority argues that the legislature, not this court, should decide whether to adopt a recording requirement in this state. Of course, the legislature has every right to make that decision, and, in fact, it has considered proposals for such a requirement since at least 1996.
Despite the majority’s unwillingness to do so, it is time for this court to impose a recording requirement with respect to police interrogations of suspects that occur at a police station.
Nevertheless, in the present case, the failure of the police to record the defendant’s interrogation' was harmless; as the record makes clear, the evidence of the defendant’s guilt was overwhelming and included the testimony of two eyewitnesses who observed the defendant commit the crimes of which he was convicted. Accordingly, I respectfully concur insofar as the majority affirms the judgment of conviction.
“Appellate courts possess an inherent supervisory authority over the administration of justice. . . . The standards that [are] set under this supervisory authority are not satisfied by observance of those minimal historic safeguards for securing trial by reason which are summarized as due process of law .... Rather, the standards are flexible and are to be determined in the interests of justice. . . . [0]ur supervisory authority [however] is not a form of free-floating justice, untethered to legal principle. . . . [T]he integrity of the judicial system serves as a unifying principle behind the seemingly disparate use of our supervisory powers. . . . [0]ur supervisoiy powers are invoked only in the rare circumstance where [the] traditional protections are inadequate to ensure the fair and just administration of the courts . . . .” (Internal quotation marks omitted.) State v. Connor, 292 Conn. 483, 518-19 n.23, 973 A.2d 627 (2009). Thus, “[s]upervisoiy powers are exercised to direct trial courts to adopt judicial procedures that will address matters that are of [the] utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system as a whole.” (Internal quotation marks omitted.) State v. Ouellette, 271 Conn. 740, 762 n.28, 859 A.2d 907 (2004).
The statement that the defendant, Julian J. Lockhart, gave to the police in the present case occurred at a police station following the defendant’s arrest, and the defendant claims only that custodial interrogations conducted at a police station must be recorded. I see no reason, however, why such a rule should not be extended to include all interrogations of suspects that the police conduct at a police station or some other similar location. In addition, when I refer to electronic recordings, I am referring to recordings that contain both audio and video components.
As I explain more fully hereinafter, “there can be little doubt that recording confessions would dramatically reduce, if not eliminate, any possible likelihood of an erroneous conviction predicated on an involuntary [or false] confession. Indeed, videotaping confessions would greatly aid both the trial court and the jury in evaluating the voluntariness and, ultimately, the reliability of those confessions.
“Moreover ... it is apparent that the risk of a false confession is appreciably greater in cases of juveniles and persons with mental disabilities. Because children and mentally disabled persons are especially vulnerable to police overreaching — and because it appears that they also are more likely than others to confess falsely even in the absence of improper government coercion — videotaping confessions by such persons would serve an especially salutary purpose.” State v. Lawrence, 282 Conn. 141, 185, 920 A.2d 236 (2007) (Palmer, J., concurring).
In this state, the police record interrogations only when they choose to do so in the exercise of their discretion. Although some confessions are recorded, it appears that the vast majority are not.
As the majority has explained, this court never has considered whether to adopt a recording requirement for police interrogations under our supervisory authority. Although the claim was raised by the defendant in State v. James, 237 Conn. 390, 678 A.2d 1338 (1996), we concluded that the claim had not been adequately briefed and, therefore, declined to address it. Id., 434-35 n.36.
I agree with all aspects of the majority opinion other than the majority’s treatment of the defendant’s supervisory authority claim.
I use the term “confession” for ease of reference only. Police interrogation of suspects sometimes results in a confession, sometimes in an incriminating statement short of a full confession, and sometimes in an exculpatory statement. For purposes of this opinion, the recording requirement applies to all such statements obtained from a suspect by the police at the police station.
I note that the majority takes me to task for relying on certain sources of information containing material that it characterizes as inadmissible hearsay. See footnote 13 of the majority opinion. This criticism is unfounded because this court routinely relies on such sources when the information is helpful to the court in ascertaining the content of law and policy. See, e.g., Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 201-202, 957 A.2d 407 (2008); see also Moore v. Moore, 173 Conn. 120, 122, 376 A.2d 1085 (1977) (legislative facts, that is, facts that “help determine the content of law and policy,” can be “judicially noticed without affording the parties an opportunity to be heard”). Moreover, the majority does not point to any particular facts or information in this opinion with which it takes issue; indeed, the majority acknowledges that a recording requirement would be a “welcome” development. Footnote 13 of the majority opinion.
Indeed, just a few months ago, the Chicago Tribune chronicled the story of two men who, according to recently obtained DNA evidence, falsely confessed to the murder of their children. “After [fourteen] hours of interrogation in a small, windowless room, Kevin Fox simply gave up. He knew
“The distraught father later testified that detectives also screamed at him, showed him a picture of his daughter, bound and gagged with duct tape, and told him that his wife was planning to divorce him, the records show.
“Fox finally agreed to a detective’s hypothetical account of how his daughter, Riley, died in an accident, thinking investigators would realize that the phony details didn’t match up with the evidence, his lawyer said. Instead, he remained in Will County jail for [eight] months, released only after DNA evidence excluded him as a suspect. In May, another man was charged with the crime.
“What could be a similar story is now unfolding in Lake County, where Jerry Hobbs HI ... is accused of murdering his [eight]-year-old daughter and her [nine]-year-old friend. Hobbs, who had a criminal record, has been in jail five years, in large part because of a confession that emerged after hours of high-pressure interrogation. Prosecutors planned to seek the death penalty in his . . . trial, even though his DNA did not match semen found on his daughter’s body.
“Authorities recently matched the DNA with another man accused of rape and robbery in Arlington, [Virginia], offering Hobbs a chance at exoneration and once again raising the possibility that police coerced a suspect to falsely confess.
“Both cases raise a question: Why would [any person] confess to such horrific crimes — especially involving [his] own child or loved one — if [he] didn’t commit them? Seemingly unfathomable, it happens far more often than most people believe, experts say.” L. Black & S. Mills, “Why Do People Falsely Confess?,” Chicago Trib., July 11, 2010, § 1, pp. 1, 12.
The experts that the authors interviewed for this article offer various explanations for false confessions. “ ‘We know that for certain kinds of people, particularly those with mental illness and mental deficiencies, but other people as well, the psychological intensity of an interrogation can prove absolutely as torturous as physical pain,’ said Lawrence Marshall, a Stanford University law professor who co-founded Northwestern University’s Center on Wrongful Convictions.” Id., p. 12. “Dr. Robert Galatzer-Levy, a psychiatrist on the faculty of the University of Chicago and the Chicago Institute for Psychoanalysis, said interrogations are designed ‘not simply to get information,’ as the police often portray them. Instead, he said, interrogations are ‘well-thought-through psychological manipulations to get a confession.’
“Police do that by first developing a rapport with suspects. They then give them their Miranda rights, though in such a way that suspects feel they are being uncooperative if they invoke them. Finally, he said, police confront a suspect, saying they know he committed the crime but offering a way out that acknowledges guilt but to something less heinous.
“ ‘People all say, “I’d never confess. Not in a million years,” ’ said Galatzer-Levy. ‘But it turns out that people who are vigorously interrogated will confess — even if they’re innocent. The terrified but rational person might give police a story just to end the interrogation, or because they think it might improve their situation.’ ” Id.
See footnote 1 of this opinion.
This apparently is no less true in Connecticut. As amicus curiae, the Connecticut Criminal Defense Lawyers Association, notes, since this court’s decision in State v. James, 237 Conn. 390, 428-29, 678 A.2d 1338 (1996), in which we rejected the claim that, under the due process clause of the Connecticut constitution, confessions obtained through police interrogation are inadmissible unless they are recorded, courts regularly, if not invariably, have credited the testimony of the police over that of the defendant in evaluating the voluntariness of a confession. See, e.g., State v. Lapointe, 237 Conn. 694, 731-33, 678 A.2d 942, cert. denied, 519 U.S. 994, 117 S. Ct. 484, 136 L. Ed. 2d 378 (1996); State v. McColl, 74 Conn. App. 545, 565-66, 813 A.2d 107, cert. denied, 262 Conn. 953, 818 A.2d 782 (2003); State v. Stevenson, 70 Conn. App. 29, 53, 797 A.2d 1 (2002), rev’d on other grounds, 269 Conn. 563, 849 A.2d 626 (2004); State v. Spyke, 68 Conn. App. 97, 102-103, 792 A.2d 93, cert. denied, 261 Conn. 909, 804 A.2d 214 (2002); State v. Banks, 58 Conn. App. 603, 614, 755 A.2d 279, cert. denied, 254 Conn. 923, 761 A.2d 755 (2000); State v. Rodriguez, 56 Conn. App. 117, 119-22, 741 A.2d 326 (1999), cert. denied, 252 Conn. 926, 746 A.2d 791 (2000); State v. Fernandez, 52 Conn. App. 599, 611-14, 728 A.2d 1, cert. denied, 249 Conn. 913, 733 A.2d 229, cert. denied, 528 U.S. 939, 120 S. Ct. 348, 145 L. Ed. 2d 272 (1999); State v. Rivera, 52 Conn. App. 503, 509-10, 728 A.2d 518, cert. denied, 249 Conn. 906, 733 A.2d 226 (1999); State v. DaEria, 51 Conn. App. 149, 167, 721 A.2d 539 (1998). In citing the foregoing cases, I do not suggest that the trial court in each such case did not make the correct decision concerning the admissibility of the confession. Rather, I refer to them simply to underscore the fact that, without a recording requirement, it is exceedingly unlikely that a defendant will be able to establish that his or her confession is unreliable.
See, e.g., State v. Ouellette, 295 Conn. 173, 191-92, 989 A.2d 1048 (2010) (when state attests to witness’ cooperation at witness’ sentencing hearing, sentencing court must “inquire into the nature of any plea agreement between the state and the witness, and any representations concerning that agreement made during the trials at which the witness testified”); State v. Connor, 292 Conn. 483, 518-19, 973 A.2d 627 (2009) (upon finding that mentally ill or incapacitated defendant in criminal case is competent to stand trial and to waive right to counsel at that trial, court must make additional determination that defendant is competent to conduct trial proceedings without counsel); State v. Gore, 288 Conn. 770, 778, 955 A.2d 1 (2008) (when criminal defendant seeks to waive right to trial by jury without written waiver, court must canvass defendant to ensure that waiver is knowing, intelligent and voluntary); State v. Camacho, 282 Conn. 328, 385 n.38, 924 A.2d 99 (new trial may be ordered due to deliberate prosecutorial impropriety when such impropriety, although not sufficiently serious to constitute due process violation, is so offensive to sound administration of justice that only new trial can effectively deter such misconduct in future), cert. denied, 552 U.S. 956, 128 S. Ct. 388, 169 L. Ed. 2d 273 (2007); State v. Ledbetter, supra, 275 Conn. 578-79 (requiring jury instruction concerning certain risks inherent in eyewitness identification procedures); State v. Padua, 273 Conn. 138, 178-79, 869 A.2d 192 (2005) (reviewing court first must address defendant’s insufficiency of evidence claim, if claim is properly
“Proponents of recording correctly point out that other critical evidence is ordinarily preserved with far greater care — e.g., crime scenes are photographed or even . . . videotaped, not just described from the witness stand by the responding officers.” Commonwealth v. DiGiambattista, supra, 442 Mass. 446 n.22.
The Minnesota Supreme Court took judicial notice of the fact that, since its adoption of a recording rule in 1994 pursuant to its “supervisory authority to [en]sure the fair administration of justice”; State v. Scales, supra, 518 N.W.2d 592; “fewer cases [had] come before [it] in which a key issue [was]
According to one study, slightly more than 82 percent of Americans owned cell phones in 2007; see T. Stevens, “82% of Americans Own Cell Phones” (November 14, 2007), available at http://www.switched.com/2007/ 11/14/82-of-americans-own-cell-phones/ (last visited September 27, 2010); many of which came equipped with some type of camera or video capability. “This is impressive growth from a merely [twenty]-something-year-old industry. Back in 1987, a little over [one] million Americans had cell phones. In 1997, the figure was 55 million. [In 2007, it was] 250 million and climbing. Also climbing is data use on cell phones — in 2006, 22 [million] people subscribed to some sort of high-speed mobile data plan — the kind that lets you use your [cell phone] to surf the [Internet], download music and videos, and send pictures. This is an increase of 600 [percent] over the previous year alone.” Id. “Personal computers [similarly] have grown increasingly ubiquitous. Where[as] fewer than 20 [percent] of homes had them in 1992, nearly 60 [percent] did in 2002 Christian Science Monitor, “Poverty Now Comes With a Color TV,” available at http://articles.moneycentral.msn.com/Investing/Extra/PovertyNowComesWithAColoiTV.aspx (last visited September 27, 2010). By 2008, approximately 80 percent of homes in the
As Cornelia Grumman aptly explained in her 2002 editorial for the Chicago Tribune, “[v]ideo cameras cost a few hundred bucks. Sony sells digital video cameras starting at $500 retail. The entire setup, including cassettes, could reach [$1000], That’s cheaper than the alternative financial burden, shelling out millions in civil liabilities for false confessions. DuPage County paid $3.5 million to exonerated [d]eath [r]ow inmates Rolando Cruz and Alejandro Hernandez; Cook County paid $38.5 million to the four released [d]eath [r]ow inmates known as the Ford Heights Four. Cook [County] taxpayers are destined to shell out millions more in legal fees and settlements for mishandling interrogations and confessions of four men wrongfully convicted of murdering medical student Lori Roscetti. Then there are the two young boys initially charged in the Ryan Harris case after their questionable confessions.” C. Grumman, Editorial, “No More Excuses. Go to the Tape,” Chicago Trib., April 21, 2002, § 2, p. 6; see also id. (debunking the “[d]ozens of excuses, from the picayune to the far-fetched, [that] have been thrown out by police departments terrified by the idea of pulling back the curtain to the interrogation room”).
Courts invariably have concluded that interrogation methods involving trickery and deception are permissible unless the technique is so extreme or inappropriate as to render the confession involuntary. See, e.g., State v. Lapointe, 237 Conn. 694, 731-33, 678 A.2d 942 (rejecting defendant’s claim that confession should be suppressed because police falsely told him that his fingerprints had been found on handle of knife used to stab victim, and setting forth cases in which use by police of similarly deceptive tactics was held not to support finding that confession was involuntary), cert. denied, 519 U.S. 994, 117 S. Ct. 484, 136 L. Ed. 2d 378 (1996).
At oral argument, the state remarked that judges and juries might look “askance” at certain lawful police interrogation techniques, and, consequently, the police might be reluctant to employ those techniques with the knowledge that they were being recorded. The state explained: “We want our law enforcement officers to ferret out crime, consistent with due process, to do things we might not do as lawyers and judges. . . . They might have to do things that we might look askance at in hindsight.”
In Miranda v. Arizona, supra, 384 U.S. 436, the United States Supreme Court explained what occurs when the police question a suspect in custody. The court first observed that detenmning what takes place during such questioning is not always easy, noting that “[t]he difficulty in depicting what transpires at such interrogations,” which, as the court noted, frequently take place in a “police-dominated” setting, “stems from the fact that in this country they have largely taken place incommunicado.” Id., 445. After noting that police use of “physical brutality” to obtain confessions, although the exception, had not been eliminated completely; id., 446-47; the court further explained “that the modem practice of in-custody interrogation is psychologically rather than physically oriented. . . . [Cjoercion can be mental as well as physical, and that the blood of the accused is not the only hallmark of an unconstitutional inquisition. . . . Interrogation still takes place in privacy. Privacy results in secrecy and this in turn results in a gap in our knowledge as to what in fact goes on in the interrogation rooms.” (Citations omitted; internal quotation marks omitted.) Id., 448. Relying on “various police manuals and texts [that] document procedures employed with success in the past . . . and [that] recommend various other effective tactics”; id.; the court described the various psychological ploys that the police use to extract a confession, including, among other things, isolating the suspect in unfamiliar surroundings; id., 449-50; maintaining ah “air of confidence in the suspect’s guilt”; id., 450; “minimiz[ing] the moral seriousness of the offense”; id.; and questioning the suspect about the reasons why he committed the crime rather than asking him whether he did it. Id. “[PJatience and perseverance” are described as “the major qualities an interrogator should possess . . . .” Id.
The court quoted one authority as advising that, when the suspect is resistant to cooperating, the questioner “must rely on an oppressive atmosphere of dogged persistence. He must interrogate steadily and without relent, leaving the subject no prospect of surcease. He must dominate his subject and overwhelm him with his inexorable will to obtain the truth. He should interrogate for a spell of several hours pausing only for the subject’s necessities in acknowledgment of the need to avoid a charge of duress that
The court then summarized what it had discerned about the way interrogations are conducted: “From these representative samples of interrogation techniques, the setting prescribed by the manuals and observed in practice becomes clear. In essence, it is this: To be alone with the subject is essential to prevent distraction and to deprive him of any outside support. The aura of confidence in his guilt undermines his will to resist. He merely confirms the preconceived story the police seek to have him describe. Patience and persistence, at times relentless questioning, are employed. To obtain a confession, the interrogator must patiently maneuver himself or his quarry into a position from which the desired objective may be attained. When normal procedures fail to produce the needed result, the police may resort to deceptive stratagems such as giving false legal advice. It is important to keep the subject off balance, for example, by trading on his insecurity about himself or his surroundings. The police then persuade, trick, or cajole him out of exercising his constitutional rights.
“Even without employing brutality, the third degree or the specific stratagems described [previously], the very fact of custodial interrogation exacts a heavy toll on individual liberly and trades on the weakness of individuals.” (Internal quotation marks omitted.) Id., 455. “It is obvious that such an interrogation environment is created for no purpose other than to subjugate the individual to the will of his examiner. This atmosphere carries its own badge of intimidation. To be sure, this is not physical intimidation, but it is equally destructive of human dignity. The current practice of incommunicado interrogation is at odds with one of our [n]ation’s most cherished principles — that the individual may not be compelled to incriminate himself. Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from [a] defendant can truly be the product of his free choice.” Id., 457-58.
Another reason sometimes “advanced by police for their frequent failure to electronically record an entire interrogation is their claim that recordings
I note that, at the time Miranda was decided, critics of the court’s holding expressed the concern that advising suspects of their rights, including the right to remain silent, prior to custodial interrogation would severely impede police investigations. See, e.g., M. Cloud et al, “Words Without Meaning: The Constitution, Confessions, and Mentally Retarded Suspects,” 69 U. Chi. L. Rev. 495, 496 and n.5 (2002). That concern has proven to be unfounded. “Statistical analyses conducted by Miranda’s critics and supporters indicate that waivers are secured in an overwhelming majority of custodial interrogations . . . .” Id., 497; see also S. Chanenson, “Get the Pacts, Jack! Empirical Research and the Changing Constitutional Landscape of Consent Searches,” 71 Tenn. L. Rev. 399, 442 (2004) (noting that approximately 84 percent of suspects who have been advised of their rights in accordance with Miranda nevertheless waive their right to remain silent and comply with request for statement). Similarly, in Schneckloth v. Bustamonte, 412 U.S. 218, 229-32, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973), the United States Supreme Court declined to adopt a rule requiring that suspects be informed of their right to withhold consent to an officer’s request to conduct a warrantless consent search because, among other reasons, the court was concerned that requiring such a warning could jeopardize the continued viability of consent searches. These concerns also appear to have been misplaced, however, because empirical studies indicate that individuals give consent at roughly the same rate regardless of whether they are informed of their right to refuse consent. See, e.g., I. Lichtenberg, “Miranda in Ohio: The Effects of Robinette on the
In 2008, the legislature enacted Public Acts 2008, No. 08-143, § 2 (P.A. 08-143), which, among other things, directed the advisory commission on wrongful convictions (advisory commission) “[to] monitor and evaluate the implementation of . . . [a] pilot program to electronically record the interrogations of arrested persons . . . .” Pursuant to P.A. 08-143, § 2, the advisory commission was “[to] report its findings and recommendations to the [judiciary] committee of the General Assembly” no later than January
Despite the success of the pilot program, the state division of criminal justice opposes legislation mandating a recording requirement. In its view, each police department should be permitted to consider the results of the pilot program and to decide for itself whether to adopt a policy of recording interrogations. See, e.g., Testimony in Opposition of Senate Bill No. 230 (March 10, 2010), available at http://www.ct.gov/csao/cwp/view.asp?A= 1802&Q=456774 (last visited September 27, 2010). Kevin Kane, the chief state’s attorney, testifying on behalf of the state division of criminal justice, stated that, although “the recording of interrogations might be a desirable investigative practice that is to be encouraged, such recording is not a requirement under the constitutional guarantee of due process” and suggested, therefore, that such a practice should not be mandatory.
“For example, Minnesota requires that all custodial interrogations, including any information about rights, waiver of those rights, and all questioning, be recorded electronically when feasible and whenever questioning occurs at a place of detention. State v. Scales, supra, [518 N.W.2d 592], In contrast, New Hampshire does not require a recording of the administration of a defendant’s Miranda rights or the defendant’s subsequent waiver of those rights, but it does require a complete recording following the waiver of a defendant’s Miranda rights. State v. Barnett, [147 N.H. 334, 338, 789 A.2d 629 (2001)].” Clark v. State, 374 Ark. 292, 304, 287 S.W.3d 567 (2008).
In many jurisdictions, the failure to record a confession as required results either in the exclusion of the confession; see, e.g., Texas Code Crim. Proc. Ann. art. 38.22, § 3 (a) (Vernon 2005); Stephan v. State, supra, 711 P.2d 1163-64; State v. Scales, supra, 518 N.W.2d 592; or arebuttable presumption of involuntariness, which the state can overcome by establishing, under the totality of the circumstances, that the confession or statements were voluntary and are reliable. See, e.g., D.C. Code Ann. § 5-116.03 (LexisNexis 2009); 725 111. Comp. Stat. Ann. § 5/103-2.1 (b) (1) (West 2006).
Since 1996, the judiciary committee has considered a number of bills that would have required electronic recording of custodial interrogations; see, e.g., Senate Bill No. 230 (2010); Senate Bill No. 608 (2008); House Bill No. 1281 (2005); House Bill No. 6631 (1999); House Bill No. 5490 (1996); only one of which made it out of committee. The bill that made it out of committee, namely, House Bill No. 6631, was not acted on by the full legislature. Because these proposed bills never were considered by the full legislature, no inference can be drawn that the bills were rejected on their merits. See, e.g., State v. Salamon, 287 Conn. 509, 526 n.14, 949 A.2d 1092 (2008)
Of course, as this court has recognized, “the rules of evidence . . . have never in this state been regarded as exclusively within the judicial domain. Over a period of many years, the legislature has enacted various statutes modifying the rules of evidence prevailing at common law .... These changes have been accepted by our courts and have never been challenged as violating the principle of separation of powers." (Emphasis added.) State v. James, 211 Conn. 555, 560, 560 A.2d 426 (1989); accord State v. DeJesus, supra, 288 Conn. 462 n.31. Because the issue of whether to impose a recording requirement involves an important issue of public policy, and not merely an issue pertaining to the orderly dispatch of judicial business in our courts, there is no reason why the legislature would not be free to alter or even to abolish any such requirement that this court might adopt. See State v. James, supra, 560; see also McDougall v. Schanz, 461 Mich. 15, 30-31, 597 N.W.2d 148 (1999) (statutory rule of evidence violates state constitutional separation of powers principles only when “no clear legislative policy reflecting considerations other than judicial dispatch of litigation can be identified,” and, therefore, “[i]f a particular court rule contravenes a legislatively declared principle of public policy, having as its basis something other than court administration . . . the [court] rule should yield” [internal quotation marks omitted]). Consequently, there is no reason why this court should decline to consider the issue merely because the legislature also has an interest in it.
The majority nevertheless asserts that, because the legislature has not taken any action in response to the report recounting the success of the
I note that an increasing number of courts have been persuaded to adopt arecording requirement. For example, in September, 2009, the Indiana Supreme Court expressly found that “the interests of justice and sound judicial administration will be served by the adoption of a new [r]ule of [ejvidence to require electronic audio-video recordings of customary custodial interrogation of suspects in felony cases as a prerequisite for the admission of evidence of any statements made during such interrogation.” Indiana Supreme Court, Order No. 94S00-0909-IVKM (September 15, 2009) (adopting rule 617 of the Indiana Rules of Evidence, which precludes admissibility of unrecorded confessions with certain exceptions), available at http://indianalawblog.com/documents/Evidence%20Rule%20617s.pdf (last visited September 27, 2010); see also, e.g., Clark v. State, 374 Ark. 292, 302, 304, 287 S.W.3d 567 (2008) (rejecting defendant’s claim that recording of custodial interrogation was constitutionally mandated but concluding that “criminal-justice system will be better served if [the court’s] supervisory authority is brought to bear on this issue”); In re Jerrell C.J., supra, 283 Wis. 2d 173 (exercising supervisory authority to adopt rule requiring recording of custodial interrogation of juvenile suspects).
The majority characterizes this concurrence as an “impassioned plea for the point that no one in the majority disagrees with, namely, that the recording of confessions is desirable as an aid in evaluating the reliability and trustworthiness of confessions [and would] increase the accuracy and