New Rule: Arkansas Rule of Criminal Procedure 4.7

22 06 2012

The Arkansas Committee on Criminal Practice proposed Rule 4.7 and the Arkansas Supreme Court adopted it.  It states that all interrogations at a jail or police station should be recorded.  The penalty for not recording them is that the judge is now permitted by the rule to take this into consideration in determining the admissibility of a statement.

Although I do not doubt the good intentions and hard work performed by the committee, Rule 4.7 might be the most useless rule of them all.  I have no doubts that it will be frequently cited by defense attorneys, but the practical ramifications will be nil for a few reasons.  First, if judges are not already considering the failure to record interrogations then they have been neglecting their oath for years.  Second, the rule does nothing to inform judges how they are to consider the failure to record the interrogation.  Does failure to record alone permit a judge to suppress the statement?  How about if the officer is credible in his testimony but he did not record the statement, does that suppress the statement?  The failure to give any guidance at all will render this rule either arbitrary in its application or useless.  Finally, the rule is simply stating the obvious.  It is tantamount to stating the court should consider the abuse the police officer inflicted in determining the admissibility.

This rule will change nothing.  It is expressing a public policy statement preferring that interrogations be recorded; however, it has no enforcement.  Without enforcement it is the equivalent to having the Fourth Amendment without the exclusionary rule.  It just won’t help.


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