Michigan Supreme Court Lansing, Michigan

Robert P. Young, Jr., Chief Justice

Michael F. Cavanag h Marilyn Kell y Stephen J. Markma n Diane M. Hathawa y Mary Beth Kell y Brian K. Zahra,
J ustices 

# Order

May 20, 2011

142051

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v SC: 142051 COA: 292547 Wayne CC: 08-014892-FC VALERIE MARIE PARKS, Defendant-Appellant.

________________ _______________ __________/

On order of the Court, the application fo r leave to appeal the September 21, 2010 judgment of the Court of Appeals is consid ered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

M ARILYN K ELLY , J. ( dissenting ) I dissent from the order denying defenda nt’s request for leave to appeal. The application raises a jurisprude ntially significant issue regardin g the legal implications of the police failing to make an audio or visual recording of a custodia l interrogation. This
issue has received increased attention nationwide in recent years as more and more states implement some form of electr onic recording requirement.

In Stephan v State

, 1 the Alaska Supreme Court held that a failure to electronically record a custodial interrogatio n conducted in a place of de tention 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 reco rd a custodial interrogation vi olates 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 c onstitution, many have re cognized the benefits

1 711 P2d 1156 (Alaska, 1985).

2 See, e.g., State v Lockhart , 298 Conn 537, 557 n 10 (2010) (collecting cases).

3 People v Fike , 228 Mich App 178, 184 (1998).I, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

_______________________________________ __ Clerk May 20, 2011

p0517 2

of such recordings to all parties. 4 Consequently, many states now require them. A few courts have adopted mandatory recording re quirements as part of their supervisory powers. They have held that the proper re medy 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 adop ted the remedy of a cautionary jury instructi on when that requirement is violated. 6 Still other courts that have not yet adopted a recording rule have directed further study on the me rits of adopting such a rule. 7 Several state legislatures have passed statutes requiring electronic recording of police interrogations. 8 In Michigan, the House of Repr esentatives 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 sim ilar bill in April of this year, and the measure is currently pending in the House. 10 Given these developments, I would gran t defendant’s appli cation for leave to appeal. The issue that defend ant presents involves legal prin ciples of major significance to this state’s jurisprudence. The Court should determine wh ether, in the exercise of its supervisory powers, it should re quire that all custodial polic e interrogations in Michigan be electronically recorded. If so, it should determine the appropriate remedy for a violation of that requirement.

4 See, e.g., id . at 188-190 (F ITZGERALD , J., concurring).

5 State v Scales , 518 NW2d 587, 592 (Minn, 1994); State v Barnett , 147 NH 334, 338 (2001) (a recorded interroga tion is inadmissible unless the defendant’s statement is recorded in its entirety); In re Jerrell CJ , 283 Wis 2d 145 (2005) (juvenile interrogations only).

6 Commonwealth v DiGiambattista, 442 Mass 423, 445-446 ( 2004); NJ Crim Prac R
3:17.

7 See, e.g., Clark v State , 374 Ark 292, 304 (2008) (“[W]e believe that the criminal justice system will be better serv ed if our supervisory authority is brought to bear on this issue. We therefore refer the practicability of adopting such a [recording] rule to the
Committee on Criminal Practice fo r study and consideration.”).

8 DC Code 5-116.01; 725 Ill Comp Stat Ann 5/1 03-2.1; Me Rev Stat Ann tit 25, § 2803- B(1)(K); Tex Code Crim Proc Ann ar t 38.22, § 3; Wis Stat § 972.115.

9 HB 5763.

10 SB 152.