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The defendant in this case, Charles Zuffante, was riding in a car that was stopped by the Hawai鈥榠 Police Department (HPD). Officers found methamphetamine and took Mr. Zuffante to a police station for questioning. The two HPD officers who conducted the traffic stop were equipped with body-worn cameras and, consistent with HPD policy, recorded it. But when another HPD officer interrogated Mr. Zuffante at the police station, the officer did not record it or take notes. At Mr. Zuffante鈥檚 trial, the interrogating officer testified that Mr. Zuffante had waived his Miranda rights and confessed to drug trafficking.

The ACLU鈥檚 State Supreme Court Initiative and the ACLU of Hawai鈥榠 filed an amicus brief arguing that the failure to record the interrogation was both unfair and unconstitutional.

With respect to due process, the brief makes three points. First, the Court鈥檚 prior decision in Kekona is out of step with the Court鈥檚 current case law, which stresses the state鈥檚 affirmative obligation to demonstrate that a confession was voluntary, and which stresses outcomes that are good for all Hawaiians. That case law is relevant here because recording protects suspects and officers alike. Second, the Court鈥檚 decision in Kekona has been overtaken by technology, which has made recording far easier for everyone and for police in particular. Thus, here, the police had the wherewithal to record Mr. Zuffante during a traffic stop but argued that it could not do so鈥攄ue to broken equipment鈥攚hen he was in the controlled environment of the police station. That doesn鈥檛 make sense. Third, the Court鈥檚 decision in Kekona has been overtaken by the law, because courts or legislatures in roughly 30 states now require recording of at least some custodial interrogations.

With respect to the Court鈥檚 supervisory power, the brief explains that requiring recording鈥攐r, at a minimum, requiring trial courts to give an appropriately stern jury instruction when police fail to record鈥攊s well within the Court鈥檚 authority to supervise the judiciary. The brief also discusses some decisions of other state supreme courts that have exercised their supervisory powers to require or encourage the recording of custodial interrogations.

Given the high stakes, it does not make sense to excuse the police from recording custodial interrogations especially where a defendant鈥檚 words can mean the difference between conviction and acquittal.