Companion bills H.4630 and S.906 would require that any interrogation conducted on a person in custody, and related to a felony or Class A misdemeanor, be recorded in its entirety by both audio and video means. If a police officer conducts such an interrogation without recording it, he will be required to prepare a report which explains why the recording wasn’t made and summarizes the interrogation process. A custodial interrogation doesn’t have to be recorded if there are exigent circumstances, but in this case the interrogating law enforcement officer must record an explanation of the exigent circumstances.
Under the bill, the recording requirement is waived if the individual being interrogated asks that the interrogation not be recorded.
If the state intends to use a statement made during an interrogation that wasn’t recorded in a judicial proceeding it would have to notify the defendant of its intent and the recording exemption the state plans to rely on. Unless the court finds an exception applies it shall consider the failure to record an interrogation when determining whether a statement is admissible evidence. If such a statement is admitted as evidence the defendant may request the court give cautionary instructions to the Jury.
The State Law Enforcement Division (SLED) would also be required by S.906 to promulgate regulations for the implementation of this recording requirement by all law enforcement agencies. Every law enforcement agency would also have to adopt rules providing for administrative discipline of officers who violate this law.
Although it contains a number of exceptions this would be a step forward in protecting the rights of suspects and defendants. Every attempt should be made to ensure that coerced statements or outright fabricated statements are not used against individuals in a judicial proceeding. S.906 would help protect the rights of the accused in South Carolina, and therefore would serve the cause of justice and due process in the same.