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Criminal Nuggets

Oct 20, 2014

A police interrogation in murder case is not recorded in Podcast Episode 021 of the Criminal Nuggets podcast. So what happens in Illinois when the video recorder breaks down and the interrogation is not recorded?

This is exactly what happened in People v. Green.

Facts of the Case

In that case, the police find a women violently beat to death in her home. Her family immediately tells the police that her boyfriend is violent towards her. In fact, he had recently sent her a threatening text message.

Guess who the police want to talk to? After some cat and mouse stuff, the police eventually find Defendant in a van driving quickly away from the police. Defendant still has blood on him. Guess, who gets a ride to the police station for some questions?

By all accounts, the recording equipment simply malfunctions. The interrogation is not recorded. Defendant, of course, makes some incriminating statements.

Police Interrogation in Murder Case in Illinois

The applicable law here falls under the Illinois Compiled Statutes Code of Criminal Procedure section 725 ILCS 5/ 103-2.1(b). Surprisingly, the code does not use the language we would expect. One would expect to find the language “shall be” somewhere in a “requirement” section of law.

That’s not how this law is written up. Here is exactly what the code says:

“An oral, written, or sign language statement of an accused made as a result of a custodial interrogation conducted at a police station or other place of detention shall be presumed to be inadmissible as evidence against the accused in any criminal proceeding brought under [listed] Section ...unless (1) an electronic recording is made of the custodial interrogation; and (2) the recording is substantially accurate and not intentionally altered.”

725 ILCS 5/ 103-2.1(b)

The law simply sets up a presumption of inadmissibility in all cases involving an interrogation of a murder suspect that is done without a recording. This presumption is slowly being broadened to include other listed charges.

This is not necessarily an outright ban of the interrogation as evidence.

What Happens When the Interrogation is not Recorded?

The code further states that:

“The presumption of inadmissibility of a statement made by a suspect at a custodial interrogation at a police station or other place of detention may be overcome by a preponderance of the evidence that the statement was voluntarily given and is reliable, based on the totality of the circumstances.”

725 ILCS 5/ 103-2.1(f)

So when a murder interrogation is not recorded, there is a presumption of inadmissibility as evidence  of that statement.

However, if the prosecution can establish that the statements made in the interrogation were still voluntary then the statements can be admitted in evidence despite the fact that they were not recorded.

Very Familiar Law

The good news here, is that we are all familiar with the standard for admitting an unrecorded murder interrogation.

This is the ordinary voluntariness standard that we litigate anytime the defense files a motion to exclude a confession procured by coeression. That is a common motion.

The motion has the effect of the shifting the burden of proof that the statement was voluntarily given over to the state.

We all know all the case law dealing with voluntarily given statements. Nothing new here.

"[T]he test for voluntariness of a statement is whether the defendant made the statement freely, voluntarily, and without compulsion or inducement of any sort, or whether the defendant’s will was overcome at the time he or she confessed." People v. Gilliam, 172 Ill. 2d 484, 500 (1996).

We all have cases listing some of the appropriate factors:

  • age
  • education
  • intelligence
  • mental capacity
  • physical condition at the time
  • drugged
  • the legality
  • duration and time frame
  • advised of rights
  • physical abuse
  • mental abuse
  • threats
  • promises
  • denial of family
  • denial of attorney

In the case of an unrecorded interrogation, the court will also very carefully look at the reason that the interrogation was not recorded. Intentional violations of the requirement will be treated more harshly. 

Results in This Case

The prosecution was able to overcome the presumption of inadmissibility against this defendant.

Question to Ponder

Hey, since the requirement of recorded interrogations is slowly being broadened to include other crimes such...

  • Predatory criminal sexual assault of a child
  • Aggravated arson
  • Aggravated Kidnapping
  • Aggravated Hijacking
  • Home Invasion
  • Aggravated Criminal Sexual Assault
  • Armed Robbery
  • Aggravated Battery

...isn't it time to broaden this rule to all felonies?

Digital data storage and video recording equipment are at all time lows in terms of cost and ease of using. Aggravated battery is in the list of crimes we must record! Why don’t we just expand the rule to all  felonies?