PEOPLE v. PARKS, 489 Mich. 929 (2011)

797 N.W.2d 136

NO. 142051.Supreme Court of Michigan.
May 20, 2011.

Court of Appeals No. 292547.

Leave to Appeal Denied May 20, 2011.

MARILYN KELLY, J. (dissenting).

I dissent from the order denying defendant’s request for leave to appeal. The application raises a jurisprudentially significant issue regarding the legal implications of the police failing to make an audio or visual recording of a custodial interrogation. This issue has received increased attention nationwide in recent years as more and more states implement some form of electronic recording requirement.

In Stephan v State, [1] the Alaska Supreme Court held that a failure to electronically record a custodial interrogation conducted in a place of detention violates a suspect’s right to due process under the state constitution. In Alaska, any statement thus obtained is generally inadmissible at trial. However, all other courts that have opined on the issue of whether the failure to record a custodial interrogation violates their state constitution have found it unmeritorious.[2] Among them is our own Court of Appeals.[3] This Court has not yet considered the issue.

Although most courts have concluded that a failure to electronically record police interrogations does not violate their state’s constitution, many have recognized the benefits of such recordings to all parties.[4]

Consequently, many states now require them. A few courts have adopted mandatory recording requirements as part of their supervisory powers. They have held that the proper remedy for a violation of that requirement is suppression at trial of the statement made to the police.[5] Other courts imposing a recording requirement have adopted the remedy of a cautionary jury instruction when that requirement is violated.[6] Still

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other courts that have not yet adopted a recording rule have directed further study on the merits of adopting such a rule.[7]

Several state legislatures have passed statutes requiring electronic recording of police interrogations.[8] In Michigan, the House of Representatives passed a bill requiring electronic recording of interrogations in 2010, [9] but the legislative session ended before the Senate took it up. The Michigan Senate unanimously passed a similar bill in April of this year, and the measure is currently pending in the House.[10]

Given these developments, I would grant defendant’s application for leave to appeal. The issue that defendant presents involves legal principles of major significance to this state’s jurisprudence. The Court should determine whether, in the exercise of its supervisory powers, it should require that all custodial police interrogations in Michigan be electronically recorded. If so, it should determine the appropriate remedy for a violation of that requirement.