DOCKET NO. CR07-0241859 Judiotal District of New Have. SUPERIOR COURT. SUPERIOR COURT STATE OF CONNECTICUT : FILED JUDICIAL DISTRICT i Vv. AG 08 2010 OF NEW HAVEN STEVEN HAYES “HEF CLERK'SOFT auGusT 3, 2010 MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT’S AMENDED MOTION TO SUPPRESS STATEMENTS ‘This memorandum of law is respectfully submitted in support of defendant's motion to suppress potential testimony and other evidence of certain statements made by the defendant, as well as to respond to the arguments in the state's memorandum in opposition filed on July 20 2010. It is important to delineate what is and is not at issue, ‘The defense withdraws any claims regarding the verbal statement made by the defendant on July 23, 2007, at approximately 10:15 A.M., delineated #2 in the defendant's Amended Motion to Suppress Statements, filed July 13, 2010. Upon the disclosure of log book pages, the defense additionally expects to withdraw claims regarding verbal statements made by the defendant on July 6, 2008, at approximately 1:30 P.M., delineated #4 in the defendant's Amended Motion. This memorandum of law will not refer to the facts addressed during the evidentiary hearings regarding these matters, In addition, the state has represented on the record that it will not seek to introduce in its case in chief the following evidence, presumably as a result of issues raised in this motion and the facts developed during the evidentiary hearing held on July 14th and 16th 1) The signed handwritten notes of Detective Anthony Buglione which encompass in part verbal inculpatory statements made by Steven Hayes during his interview at the Cheshire Police Department between 1:10 and 2:20 P.M. on July 23, 20072) Any testimony of either Detective Buglione or Detective Christopher Consorte that Mr. Hayes reviewed Det. Buglione’s notes and adopted them as accurate by signing them. 3) Any testimony by either Detectives Buglione or Consorte following the completion of the verbal interview, that Mr. Hayes requested to consult with an attorney upon being told by Det. Buglione that they wanted to begin taking a written statement. 4) Any testimony by either Detective Buglione or Consorte following the completion of the signed Miranda form waiver that Mr. Hayes, upon being told by Det. Buglione that they would tape record this interview, again requested to consult with an atlomey. While the above facts are not being introduced by the state during the wial, the defendant will refer to them in this memorandum of law given their relevance to the issues raised. ISSUES RAISED 1) The failure to electronically record the deféndant’s interrogation and oral statements violates his due process rights under the state and federal Constitution requiring suppression of his oral statement.! 2) The failure to electronically record the defendant’s interrogation and oral statement violate his due process right under the state and federal constitution requiring suppression of his oral statements during any penalty phase hearing, 3) The Miranda notice of rights end waiver form should encompass as a matter of state constitutional protection the following language: "The state makes reference to an in-chamnbers discussion that the defense will withdraw its claims regarding two of the presented issues, namely the Miranda waiver validity and the voluntariness issues. (State’s Momorandumn at 5-6) However, the defense indicated it would wait until receipt and review of the evidentiary hearing transcripts and has decided to pursue the claims raised in this memorandum of law. The defense has communicated that there would be no objection to the state's filing an additional memorandum in response to the claims raised herein,You have a right to have any statement you make to be electronically recorded. 4) When the police fail to electronically record a suspect/defendent’s interrogation or statement, the burden of proof to show a knowing, voluntary, and intelligent waiver of Miranda rights must be established by proof beyond reasonable doubt. 5) The State failed to prove that the defendant’s executed written waiver of rights was knowing, voluntary, and intelligently made. FACTUAL BASIS Around noon on July 23, 2007, Connecticut state police detectives Anthony Buglione and Christopher Consorte were assigned to interview the defendant, Steven Hayes, at the Cheshire Police Department. Hayes was removed from the celiblock and taken to an interview room in the detective bureau (7/14 Tr. at 35). The interview room was approximately eight by ten feet in size, according to Det. Buglione (7/14 Tr. at 36). Det. Consorte testified this room was “a fairly decent size” and contained a “circular table” with “four to five” seats around it (7/16 Tr. at 20). At about 1:10 P.M., Hayes was Mirandized and signed a “Notice and Waiver of Rights” form (Exhibit A). Det. Buglione questioned the defendant for an hour and ten minutes without using a tape recorder (7/14 Tr. at 52-53). During this period of time, Mr. Hayes made numerous statements regarding the Cheshire incident (7/14 Tr. at 50). Det. Buglione then wanted to take a written statement from the defendant, but the defendant refused and asked for an attorney (7/14 Tr. at 42), Afier Hayes requested an attorney, Det. Buglione asked Hayes to review the interview notes and sign the last page “iff he agreed that they were an accurate depiction” of the last hour and ten minutes of his responses to the questioning (7/14 Tr. at 43). Hayes reviewed the notes and then signed the last page. (Id.) After seizing Hayes’ clothing as evidence, Det, Buglione asked Hayes which attorney he wanted to call (7/14 Tr. at 43). Hayes asked if the attorney would cost him anything and Det.Buglione responded that he did not know (7/14 Tr. at $8). According to Det. Buglione, the defendant then decided not to consult an attorney. Det. Buglione asked Hayes if he wanted to continue the interview and Hayes assented (7/14 Tr. at 43). The defendant then signed another Notice and Waiver of Rights form at 2:50 P.M. (7/14 Tr, at 45; Exhibit B). At this point, Det. Buglione stepped out of the room and spoke with State's Attomey Michael Dearington, who was present at the time and who told him to tape the interview (7/14 Tr. at 45, $2, 60). When Det, Buglione informed the defendant that the interview would now be recorded the defendant again invoked his right to consult an attorney and the interview ended (7/14 Tr. at 47), When asked why he chose not to record the questioning of the defendant in a multiple aurder case, Det, Buglione testified that he did not know whether there was a tape recorder available (7/14 Tr. at 51). However, Det. Bugiione was instructed to ape record the defendaat’s statements after the defendant's rights were read to him a second time at 2:50 P.M, (7/14 Tr. at $2-53). In addition, Det. Buglione agreed on cross-examination that the interview room was spacious enough to accommodate a video camera or a cassette “without any real difficulty” (7/14 Tr. at 55). At some point in time, Det. Buglione was aware that the codefendant’s statement was being tape-recorded (7/14 Tr. at 56). Det. Buglione also explained that he has never tape recorded an interview since the beginning of his career in 1987 (7/14 Tr. at 52). Det, Consorte had never tape recorded an interview either (7/16 Tr. at 31). In addition, Det. Buglione pointed to the lack of a state police policy requiring tape recording, even though he agreed that every state police vehicle records driving under the influence incidents (7/14 Tr. at 56). In this case, he claimed that “I never even think about tape recording because I have never done it” and “i]t never even crossed my mind.” (7/14 Tr. at 53). Several years prior, Det. Buglione acknowledged being cross examined in courtabout another interview he failed to record, which case is currently before the Conn. Supreme Court (7/14 Tr. at 54; see State v. Lockhart, Conn. Supreme Court docket # 17773). Because the interview with the defendant was not recorded, there is no neutral and complete record of how the defendant sounded, what questions were asked by which detective, and how the defendant answered the questions (7/14 Tr. at 53). There is no verbatim account of the precise questions, or the precise responses. Det. Consorte did not take notes (7/14 Tr. at 53) though he did review Det, Buglione’s report “the next day or whenever [Det. Buglione] printed it out” (7/16 Tr. at 36). Det. Buglione does not remember whether or when he or Det. Consorte left the interview room during the hour and’ten minute interview (7/14 Tr. at 56). Det. Consorte does recall Det. Buglione leaving the room (7/16 Tr. at 23). Though Det. Buglione denies putting pressure on or threatening the defendant, (7/14 Tr. at 58), this is not corroborated with a tape recording, LEGAL ANALYSIS AND ARGUMENTS REGARDING FAILURE TO RECORD STATEMENTS ELECTRONICALLY? I. _ The unrecorded statements must be suppressed under the state and federal constitutions to protect the defendant’s right to due process, including his privilege against self-incrimination, right to consult with counsel, and right to present a defense. The defendant contends that the United States and Connecticut constitutions require law enforcement agents to electronically record all custodial interrogations, advisements of Miranda rights, and any resulting statements, when the interrogations are conducted in a place of detention, and recording is otherwise feasible. ‘The failure of the Connecticut state police to electronically record the defendant’s interrogation and statements, requires suppression of the statements. Phe ensuing legal analysis, in large measure, but not its entirety, is drawn from the appellate brief in Lockhart, supra.Electronic Recording: The State Constitutional Claim ‘The defendant claims that electronic recording of interrogations, advisements of rights, and statements, is constitutionally required when the interrogation occurs at a place of detention and recording is otherwise feasible. While the primary focus of this claim is the state constitution, the defendant also raises a federal constitutional claim. To avoid unnecessary duplication, certain sections of the memorandum will allude to both constitutions ‘The defendant recognizes that in order to prevail on his state constitutional claim, this court would have to consider, and would be bound to follow, State v. James, 237 Conn, 390, 428-34, 678 A.2d 1338 (1996) until a decision in Lockhart, supra is released, While Lockhart, supra raises the identical claim, the defense from this case has raised additional legal issues onsidered, about recording that have not previously been determined. In asking that James be r the Lockhart brief was pointedly aware of the important role of “stare decisis, which counsels that a court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it.”” State v. Warholic, 278 Conn. 354, 384, 897 A.2d 569 (2006). The court has noted, however, that “[s}tare decisis... is not an end in itself... Experience can and often does demonstrate that a rule, once believed sound, needs modification to serve justice better .. . Indeed, [i]f law is to have current relevance, courts must have and exert the capacity to change a rule of law when reason so requires.”” Id., 385; State v. Lawrence, 282 Conn, 141, 170, 920 A.2d 236 (2007) (same). Moreover, “claims of stare decisis are at their weakest in thle] field” of constitutional interpretation, “where [the court’s] mistakes cannot be corrected by” a legislature. (Emp. added) Vieth v. Jubelirer, 541 U.S. 267, 305,124 S.Ct. 1769, 158 L.Ed2d 184 (2004). See Payne v. Tennessee, 501 U.S, 808, 828-29, 111 $.Ct. 2597, 115 L.Ed.2d720 (1991) (noting “that the Court has during the past 20 Terms overruled in whole or in part 33 of its previous constitutional decisions”). “It is more important that the court should be right upon.| i | | [ H | | | later and more elaborate consideration of the cases than consistent with previous declarations.” Barden v. Northern Pacific R. Co., 154 U.S. 288, 322 14 S.Ct 1030, 38L.Ed 992 (1894); White v. Burns, 213 Conn. 307, 336, 567 A.2d 1195 (1990) (quoting same). ‘This trial court is not bound by issues not previously raised and should take a fresh look at these issues in light of James, supra; Lockhart, supra, and everything leading up to the decision to be rendered in this case. The Conn. Supreme Court already has acknowledged that electronic recording of interrogations “'would, in many cases, be a helpful too! in evaluating the voluntariness of confessions”, and “generally might be a desirable investigative practice, which is to be encouraged”. State v. James, at 432, 434. As argued in Lockhart, supra and here, there are compelling reasons for the court to reexamine James, and to take the progressive next step from “encouragement” t0 “requirement” 1. The Sources of the Constitutional Right There are several state constitutional provisions and theories that support a recording, requirement. The first is the privilege against self-incrimination, protected by article first § 8 of the Connecticut constitution (and the Fifth and Fourteenth Amendments to the United States constitution), and the associated Miranda right to consult with counsel prior to and during custodial police interrogation. See Stephan v. State, 711 P.2d 1156, 1159-61 (Alaska 1985) (a recording requirement is “essential to the adequate protection of the aceused’s right to counsel, [and] his right against self-inctimination”). Miranda, of course, is not just a “prophylactic” rule, but is a constitutional mandate; see Dickerson v. United States, $30 U.S. 28 428, 432, 444, 120 S.Ct, 2326, 147 L.Ed 2d 405 (2000); Missouri v. Seibert, 542 U.S. 600, 609, 124 $.Ct, 2601, 159 L.Ed.2d 643 (2004); and this state's commitment to Miranda is discussed, infra. A second source is the right to due process of law, protected by article first §§ 8 and 9 of. the Connecticut constitution (and the Fourteenth Amendment to the United States constitution),See Stephan y. State, supra, 1159-61 (electronic recording “is a requirement of state due process when the interrogation occurs in a place of detention and recording is feasible” such recording is “essential” to the “tight to a fair trial”). Due process embodies the notion of fundamental fairness. See Wojculewicz v. Cummings, 145 Conn. 11, 19, 138 A.2d 512 (1958). (“A fair trial is implicit in the term “due process of law’”,); State v. Morales, 232 Conn. 707, 723 n. 18, 657 A.2d 585 (1995) (same); Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 86 L-Ed.166 (1941) (“{D]enial of due process is the failure to observe the fundamental fairness essential to the very concept of justice”,). A due process claim under the Connecticut constitution requires this court to “consider three factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail”. State v. Morales, 721; State v. Patterson, 236 Conn, 561, 572, 674 A.2d 416 (1996) (same) A third source is the right to present a defense, protected by article first § 8 of the Connecticut constitution (and the Sixth and Fourteenth Amendments to the United States constitution). See State v. Miller, 186 Conn, 654, 660, 442 A.2d 1327 (1982); State v. Tutson, 278,Conn. 715, 748, 899 A.2d 598 (2006) (°”The federal constitution require{s] that criminal defendants be afforded a meaningful opportunity to present a complete defense, which includes the right to present the defendant's version of the fiets as well as the prosecution’. ..””); State v. John M., 285 Conn, 822, 831, 942 A.2d.323 (2008) (same); Holmes v. South Carolina, 547 ULS. 319, 324, 126 $.Ct. 1727, 164 L.Fd.2d 503 (2006) (“Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants “a meaningful 8opportunity to present a complete defense.””) In Stephan v. State, 711 P.2d 1164, the Supreme Court of Alaska held that an exclusionary remedy for failure to record an interrogation was warranted because “the arbitrary failure to preserve the entire conversation directly affects a defendant's ability to present his defense at trial or at a suppression hearing”. (Emp. added). A final source is the right of confrontation, protected by article first § 8 of the Connecticut constitution; State v. Torello, 103 Conn, 511, 513, 131 A.429 (1925) (purpose of state constitutional confrontation provision was “to mark, preserve, protect and perpetuate” common aw rights); and the Sixth and Fourteenth Amendments to the United States constitution. See Crawford v. Washington, 541 U.S. 36, 42, 124 S.Ct. 1354, 158 L.Bd.2d 177 (2004) (this guarantee “applies to both federal and state prosecutions”); Davis v, Alaska, 415 U.S. 308, 315, 945 S.Ct, 1105, 39 L.Ed, 347 (1974), “The primary interest secured by confrontation is the right to cross-examination . . . Compliance with the constitutionally guaranteed right to cross- examination requires that the defendant be allowed to present the jury with facts fom which it could appropriately draw inferences relating to the witness’ reliability ....” State v. Decaro, 280 Conn. 456, 465 n.5, 908 A.2d 1063 (2006). As one commentator has argued, recording of interrogations should be required because its absence impairs a defendant's ability effectively to cross-examine and chailenge the state’s witnesses. Slobogin, Toward Taping, 1 Ohio ‘ee, State v. Harris, 227 Conn. 751, 777, 631 A.2d 309 (1993) StJ.Crim.L. 309, 320-21 (2003 (Berdon, J., dissenting) (the state confrontation clause “prevents the state from interfering with the right to effective cross-examination”); Pennsylvania v. Ritchie, 480 U.S. 39, 71, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987) (Brennan, J,, dis.) (“The creation of a significant impediment to the conduct of cross-examination thus undercuts the protections of the Conirontation Clause, even if that impediment is not erected at the trial itself”),| | | | With this in mind, it bears emphasis that “a violation of constitutional magnitude may be established even though there has not been a complete abridgment or deprivation of the right. A constitutional violation may result, therefore, when a constitutional right has been impermissibly burdened or impaired by virtue of state action that unnecessarily chills or penalizes the free exercise of the right”. (Emp. added) State v. Jenkins, 271 Conn. 165, 189, 856 A.2d 383 (2004). 2. The Geisler Analysis “The analytical framework by which [this Court] determine[s] whether, in any given instance, our state constitution affords broader protection to our citizens than the federal constitutional minimum is well settled.” State v. Rizzo, 266 Conn, 171, 207-08, 836 A.2d 224 (2003). “in order to construe the contours of our state constitution and reach reasoned and principied results, the foliowing toois of analysis should be considered to the extent applicable: (1) “the textual approach. ..”; (2) “holdings and dicta of this court, and the Appellate Court ..; (3) “federal precedent. ..”; (4) “sister state decisions or sibling approach. . . .”; (5) “the historical approach, including the historical constitutional setting and the debates of the framers ”; and (6) “economic/ sociological considerations.” (Emp. in original.) State v. Geisler, 222 Conn, 672, 684-86, 610 A.2d 1225 (1992). This last factor is recognized as focusing on “relevant public policies” and “policy considerations”. State v. Ledbetter, 273 Conn. 534, 561, 881 A.2d 290 (2005); Rizzo, at 208, 220. Although the defendant has “compartmentalized the factors below,” some of the factors “may be inextricably interwoven”. State v. Morales, 232 Conn. 716 n.10. a. The Textual Approach With respect to the privilege against self-incrimination, there is a difference in the textual language of article first § 8, and the Fifth Amendment, but this court has refused to construe the state provision more broadly. Siate v. Asherman, 193 Conn. 695, 711-15, 478 A.2d 227 (1984). 10As for due process, there is no material difference in the text of the state and federal due process clauses. This court has frequently stated, however, that “[t]he due process clause of the Connecticut constitution shares but is not limited by the content of its federal counterpart”. Fasulo v. Arafeh, \73 Conn, 473, 475, 378 A.2d 553 (1977). Our due process provisions in §§ 8 and 9, “are inherently ‘open textured provisions’ that ‘in no way [compromise] {this Court's] obligation independently to construe’ them’. State v. Rizzo, 266 Conn. at 213. “Therefore, the absence of any persuasive language neither precludes nor favors a determination that they impose any burden higher than the federal constitution.” Id, Italso appears that the similarity of language in the federal and state confrontation clauses, would yield a similar construction. See State v. Gaetano, 96 Conn. 306, 310, 114 A.2d 82 (1921) (“The underlying reasons for the adoption of this right (of confrontation] in the Federal Constitution and in State constitutions, and the principles of interpretation applying to this provision, are identical.”). The same is apparently true with respect to compulsory process. See State v, Estrella, 277 Conn. 458, 488-89, 893 A.2d 348 (2006). Historical Approach As noted in State v. James, supra, 429, “[ellectronic recording devices are, of course, 2 relatively recent technological advancement, and the absence of early historical support for their use in the receipt of confessions by the police is of little relevance to our inquiry.” Tae James majority also noted that “Chief Justice Swift’s commentary on the laws of evidence does not indicate that any form of corroboration of the existence and circumstances of statements made by criminal defendants to police traditionally was required in order for such statements to be admissible at trial.” (Emp. added) /d., 429, citing to Z. Swift, A DIGEST OF THE LAWS OF EVIDENCE (1810) pp. 131, 133, 149-50. WWThe historical record can actually be viewed as supporting the claim for electronic recording. At the time of Chief Justice Swift's writing, there apparently were no police in Connecticut to take statements-at least in the form of professional law enforcement officers that we have today.’ Furthermore, in the colonial and early Connecticut constitutional period, interrogations of suspects apparently were not conducted by constables, but were conducted, if at all, by the magistrates before whom suspects were brought. See, e.g., LUDLOW'S CODE (1650), p. 40 (authorizing constables to make arrests, “to apprehend and keep[é] in safe custody, till opportunity serves to bring them before one of the next magistrates, for further examination") (Emp. added); THE GENERAL LAWS AND LIBERTIES OF CONNECTICUT COLONIE (Hartford 1865; reprint of 1673 edition), p.15 (same); Swift, supra, 131 (“[I]n prosecutions for crimes, the voluntary confession of a prisoner, made to a private person or a magistrate, may be given in evidence against him; and if proved by legal testimony, though uncorroborated by any other evidence, is sufficient to convict him’). Professor Slobogin makes this point with respect to the Fifth Amendment: “The drafters of the Fifth Amendment obviously did not contemplate that suspect questioning be taped. But their conception of interrogation and the method for proving what it produced involved something quite similar. Because organized police forces did not exist at the time, interrogations in colonial times were always conducted by judges, during preliminary examinations in open court.” (Emp. in original; footnotes omitted.) Slobogin, Toward Taping, p.320. “{C}riminal investigation by the police, with its concomitant of police interrogation, isa product of the late nineteenth century*; in eighteenth-century America as in eighteenth-century England “there were no police [in the ‘modern sense] ...” (Brackets in original.) Kamisar, Equal Justice in the Gatehouses and Mansions of American Criminal Procedure (1965), reprinted in Kamisar, POLICE INTERROGATION AND CONFESSIONS (1980), 1.36. Even major cities did not have organized police departments in the early 1800s. “In Boston, a police force appeared in 1838 ..; before that, there was the usual haphazard collection of constables and night watchmen Friedman, A HISTORY OF AMERICAN LAW (nd eil, 1985), p. 287. “New York's police force ... emerged in 1845." id. For comparative purposes, the New Haven Police Department was organized in 1861, up:/www cityofnewhaven.com/ Police/Hisiory/index.asp; and New London organized its police department in 1864, http/fei.new-london.ct.us The Connecticut State Police was formed in 1903, and it was “the frst state police department in the country.” hitpy/wvww.ct.gov/dns 12Another important historical point is that Chief Justice Swift was concemed about improper influences in the obtaining of a confession, and about accuracy in the reporting ofa confession, and he expressed those concerns in his legal and evidence c, Federal and Sister State Precedent i. The status of recording requirements, in federal and state courts: 1. The United States Supreme Court has not directly addressed the question of whether electronic recording is required by any provision of the federal constitution. 2. ‘The federal courts of appeals have uniformly rejected electronic recording claims on ‘the assumption that the Supreme Court would not impose a recording requirement.* 3. Approximately thirty-four states including Connecticut have rejected electronic recording claims based on federal or state constitutional provisions, or on other grounds.* * *IcJonfessions are from their ature liable to suspicions . .. so likely to be influenced by hope, or fear, and so Uable, like all hearsay evidence to be misrepresented, and changed in the narration, thatthe law does not sufter them (o be received except under peculiar circumstances .... [T]he confession must be perfectly voluntary: for ifthe least degree of influence appear to be exercised over the prisoner's mind, to induce him to disclose his guitt, the ‘whole will be rejected.” (Emp. added) Swift, A DIGEST OF THE LAWS OF THE STATE OF CONNECTICUT (1823) p. 408. “[There is, perhaps, no part of evidence in which there is so much misrepresentation and fabrication, as in testifying to the confession of a party.” (Emp. added) Swi, A DIGEST OF THE LAWS OF EVIDENCE (1810)p. 149. “see, eg. United States v. Torres-Galindo, 206 F.3d 136, 144 (Ist Cit. 2000); Mastin v. Senkowski, 297 F.Supp. 24 558, 606 (W.D.N.Y. 2003); United States v. Tykarshy, 446 F.3d 458, 477 (3rd Cir, 2006); United States v. Cardenas, 410 F.3d 287, 296 (Sth Cir, 2005); Brown v. McKee, 231 Fed. Appx. 469, 475 (6th Cir. 2007); United States v Montgomery, 390 F.3d 1013, 1017 (7th Cit. 2004); United States v, Williams, 429 F.3d 767, 772 (8th Cit. 2005); United States v. Coades, 549 ¥.24 1303, 1305 (9th Cir. 1977), United States v. Baltiher, 424 F.3d 913, 925- 26 (9th Cit. 2005); Trice v. Ward, 196 F:3d 1151, 1170 (10th Cir. 1999); United States v. Boston, 249 Fed. Appx. 807, 810 (11th Cit. 2007); United States v. Yunis, 859 F.24 953, 961 (D.C. Cir, 1988); United States v. Bourdet, 477 F. Supp. 24 164 (D. C. 2007); United States v. Jarvis, 2007 CCA LEXIS 283, p.10 (USAF Ct.Crim.App. 2007). © Alabama: Dill v. State, 600 So.2d 343 (Ala, Crim. App. 1991), aff'd, 600 So.2¢ 372 (Ala. 1992); Arizona: Siate v. Jones, 49 P34 273, 279 (Ariz. 2002); California: People v. Holt, 937 P.2d 213, 241-43 (Cal.); People v. Gurule, 51 P.34 224, 256 (Cal. 2002); Colorado: People v. Raibon, 843 P.2d 46, 48-49 (Colo. App. 1992); People v. Johnson, 987 P.24 855, 860 (Colo. App. 1998) (same); People v. Casias, 59 P.3d 853, 856-57 (Colo. 2002); Georgia: Coleman v. State, 375 S.E.24 663, 366 (Ga. App. 1988); In the Interest of R-1.C., 435 S,E.2d 759, 76] & n.2 (Ga App. 1993); State v. Hardy, 636 S.B.24 36, 38 (Ga. App. 2006), cert. denied, 2007 Ga. LEXIS 96 (Ga. 2007); Hawaii: Stare. Kekona, 886 P.2d 740, 744-46 (Haw. 1994); Idaho: State v. Rhoades, $09 P.2d 455, 462 (Ida, 1991); State v. Rhoades, 820 P.2d 665 (Idabo 1991); State v. Rhoades, 822 P.2d 960, 970 (1991); State v. Lewis, 156 P.3d $65, 567 (Ida. 2007), State v. Meister, 2007 Kda, App. LEXIS 91 (2007); Utinois: People v. Bverette, 543 'N.E.2d 1040, 1047 (Ill, App. Ct. 1989), rev'd on other grounds, S65 N.E.24 1295 (Ul. 1990); Indiana: Stoker v. Siate, 692 N.F.24 1386, 1388-90 (Ind. App. 1998); Gasper v. State, 833 N.E.2d 1036, 1039-41 (Ind. App. 2005); 134. Nine states, and the District of Columbia, have recording requirements. Two states, Alaska and Minnesota, have adopted recording requirements by court decision.’ New Jersey has done so by court rule.* Six other states and the District of Columbia have enacted recording statutes or codes. 5. Ina few states that have declined to require electronic recording, the courts have nevertheless adopted some measures related to electronic recording. For example, the Supreme Court of New Hampshire, “steer{ing] a narrow course between Alaska and Minnesota,” adopted a supervisory rule that prevents “selective recording” of post-Miranda statements: “a tape recorded interrogation will not be admitted into evidence unless the statement is recorded in its Jowa: State v. Morgan, 559 N,W.24 602, 609 (lowa 1997); Kansas: State ». Wheeler, 772 P-2d 819 (Kan, 1989} (per curian; State v. Speed, 961 P.2d 13, 24 (Kan. 1998); State v. Torres, 121 P-34 429, 439 (Kan. 2005); Kentucky: Brashars v. Commonwealth, 25 $.W 3d 58, 61-63 (Ky. 2000); Louisiana: State v. Thibodeaux, 750 S0.2d 916, 922-24 (La. 1999); Maine: State v. Buzzell, 617 A.2d 1016, 1018 n4 (Me. 1992): Maryland: Bayror v ‘State, 736 A.24 325, 331-32 (Md. 1999); Massachusetts: Commonwealth v. Fryar, 610 N.E.2d 903, 909 n.8 (Mass. 1993); Commonwealth v. Diaz, 661 N.E.24 1326, 1329-30 (1996); Commonwealth v. DiGiambatista, 813 NE24 516, 529 (Mass. 2004); Commonwealth v. Burton, 876 NE.2d 411, 417 (Mass. 2007); Michigan: People v. Fie, 577 N.W.2d 903, 906-07 (Mich. Ct. App. 1998); People v, Geno, 683 N.W.2d 624, 627-28 (Mich. App. 2004); Mississippic Williams v. Stare, 522 So.2d 201, 208 (Miss, 1988); Montana: State v. Grey, 907 P.2d 951, 955-56 (Mont, 1995); Nevada: Jimenez v. State, 775 P.24 694, 696-97 (Nev. 1989); New Hampshire: State v. Barnett, 789 A,2d 629, 631-33 (N.H. 2001); New Jersey: Siaie v. Cook, 847 A.2d $30, 533, 543 (NJ. 2004); New York: People ¥, Falkenstein, T32 N.Y S.24 817, 818-19 (N.Y. App. Div. 2001); People v. Martin, 741 N.Y S.24 763, 764 (N.Y. App. Diy. 2002), North Carolina: State v. Thibodeaux, 459 8.E 24 501, 507 (N.C. 1995); North Dakota: State v Goebel, 725 N.W.2d 578, 584 (N.D. 2007); Ohio: State v. Smith, 684 N.E.2d 668, 686 (Ohio 1997); Oklahoma: Chambers v. State, 724 P24 776, 779 (Okla. Crim. App. 1986); Pennsylvania: Commonwealth v. Craft, 669 A.2d 394, 395-97 (Pa, Super. 1995); Tennessee: State v. Godsey, 60 $.W.3d 759, 770-72 (Tenn. 2001); State v. Rollins, 188 $.W.3d 553, 564-65 (Tenn. 2006); Utah: Stae v, Villarreal, 889 P.2 419, 426-27 (Utah 1995); Stare v. Tt, 101 P.3d 838, 841-42 (Utah. App. 2004); State v. James, 858 P.2d 1012, 1017-18 (Utah App. 1993); Vermon State ¥. Gorton, 548 A.2d 419, 421-22 (Vt, 1988); Stare v. Dimick, 790 A.2d 435, 436 n. 1 (Vt. 2001); Washington: ‘State v. Spurgeon, 820 P.2d 960, 963 (Wash. App. 1991); State v, Stewart, 2008 Wash. App. LEXIS 126 (Wash. App. 2008); West Virginia: Stare v. Kilmer, 439 S.E.2d 881, 892-93 (W.Va. 1993); State v. Whittaker, 650 $.E.2d 216, 231-32 (W. Va 2007); and Wyoming: Lee v. Saie, 2 P'3d 517, 527 (Wyo. 2000); State v. Evans, 944 P.2d 1120, 1128 (Wyo. 1997). "in Stephan v, State, supra, the Alaska Supreme Court held that electronic recording is required, where feasible, under the due process clause ofthe state constitution. fn Sate v. Seales, 18 N.W.2d 587 (Minn. 1994), the Minnesota Supreme Court adopted a recording requirement pursuant to its supervisory power. NJ. Sup. Ct. R. 3:17 (eff. Jan. 1, 2006 for homicide offenses, and Jan. 1, 2007, for other specified felonies). ° D.C. Code Ann. §§ 5-116.01-5-116.03 (Supp. 2007) (eff April 13, 2005); 705 Ill. Comp. Stat. § 405/5-401.5 (re minors); 725 Ill, Comp. Stat. § 5/103-2.1 (re adults) (eff. 2003); Mo, Rev. Stat. tit. 25 § 2803-B.1.K and 2803-C: N.Mex. Stat, ch, 29-1-16 (2007 Cum, Pamphlet No. 49) (eff Jan. 1, 2006); N.C. Gen, Stat. § 154-211 (eff. March I, 2008); Tex. Code Crim. Pro., art. 38.22 § 3 (Vernon 2005); Wis. Stat, § 968.073 (Jan. 1, 2007), 4entirety.” State v. Barnett, at 631-33. See State v. Velez, 842 A.2d 97, 99-100 (N.H. 2004) (discussing Barnett rule). In Massachusetts, the state’s highest court recently held that “a defendant whose interrogation has not been reliably preserved by means of a complete electronic recording should be entitled, on request, to a cautionary instruction concerning the use of such evidence.” State v. DiGiambattista, 33-34. And the Supreme Court of Wisconsin exercised its supervisory power” to require that all custodial interrogations of juveniles in future cases be electronically recorded where feasible, and without exception when questioning occurs at 2 place of detention.” Zn the Interest of Jerrell C.J., 699 N.W.2d 110, 113, 120-23 (Wis. 2005). Persuasiveness of the precedents In terms of precedent, numbers do not and should not tell the whole story. Although the Geisler opinion listed “federal precedent” and “sister state decisions” as relevant “tools of analysis,” subsequent opinions have characterized those factors as needing to be “persuasive.” (Emp. added) State v. Ledbetter, 275 Conn. 561; State v. Rizzo, 208. That is an important distinction, since much of the adverse precedent is not persuasive. In 1998, after reviewing electronic recording decisions from around the country, the Indiana Court of Appeals concluded that “seven different rationales” have been used by courts when rejecting recording claims. Stoker v. State, 1388 n.5. Some of those rationales are at odds with Connecticut jurisprudence. (1) For example, several courts have rejected a recording requirement primarily because their states’ jurisprudence follows federal law, specifically, California v, Trombetta, 467 U.S. 479, 104 S.Ct, 2528, 81 L-Ed. 2d 413 (1984) and Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct 333, 102 L.Bd.2d 281 (1988),"° with regard to “evidence preservation.” Stoker v. State, 1389-90 “in Trombetta, the court held that police need not preserve breath samples obiaincd in a drunk driving prosecution because they are not “material.” In Youngblood, the court held that a defendant must show bad faith on the part of the police in failing to preserve potentially exculpatory evidence. 15(since the “standard for evidence preservation under the Indiana Constitution is consistent with the federal analysis,” recording of custodial interrogations is not required); Commonwealth v. Craft, 396-97 (Pa.) (“The nule regarding breathalyzers controls the issue of recorded interrogations.”); State v. Spurgeon, 820 P.2d 963 (Washington’s holding regarding breathalyzer samples is “strong indication that [the Washington] constitution does not require tape-recorded interrogations”). (2) Some courts have rejected recording claims with little or no substantive analysis or discussion, See Dill v, State, at 368 (Ala.) (simply stating “[t]here is no right or requirement that a statement be tape recorded”); Coleman v. State, at 664 (Ga.) (claim is “extremely interesting,” but has “no merit”); State v. Rhoades, 820 P.2d 675 (Idaho) (“We decline to adopt Alaska's standard in Idaho.”); State v. Speed, at 24 (Kan.) (“we adhere to and follow the majority rule”); Williams v. State, at 208 (Miss.) (“this Court has never held nor does our constitution require that the mere absence of a tape recording renders such statements inadmissible”); State v. Smith, at 686 (“Neither the Ohio Constitution nor the United States Constitution requires that police interviews, or any ensuing confessions, be recorded by audio or video machines.”); People ¥: Falkenstein, at 818 (NY) (“There is no Federal or State due process requirement that interrogations and confessions be electronically recorded.”) (3) Some courts have concluded that the imposition of a recording requirement should be left to the legislature, See, e.g., People v. Raibon, 48-49 (Colo.); People v. Everette, 1047 (IIL; Brashars v. Commonwealth, 63 n.19 (Ky.); Baynor v. State, 332 (Md); People v. Fike, 906-07 (Mich); State v. Grey, 956 (Mont.); State v. Godsey, 772 (Tenn); State v. James, 1018 (Utah), State v. Gorton, 422 (Vt.); State v. Spurgeon, 820 P.2d 963 (Wash); or to “individual law enforcement agencies.” State v. Grey, 956 (Mont) (4) Some courts have rejected the claim where that state's supreme court “has never: held that the procedural due process protections of [the state constitution] extend beyond the protections of the” federal constitution. (Emp. added) Brashars v. Commonwealth, 61 (Ky.). See 16State v. Buzzell, 1018 n.4 (Me.) (“We have traditionally exercised great restraint when asked to interpret our state constitution to afford greater protections than those recognized under the federal constitution.”); People v. Fike, 906-07 (Mich.) (adopting a recording rule would represent an “unprincipled creation of state constitutional rights that exceed their federal counterparts”). (5) Atleast one court has followed the rationale of State v. James to the effect that recording is not required in the absence of a showing that “traditional” methods of determining reliability are inadequate. See Brashars v. Commonwealth, 25 8,W.3d 63 (Ky.). (6) Inat least one state, creation of an exclusionary rule for non-recorded interrogations, would be prohibited by another provision of that state's constitution. See People v. Holt, 241-43 (Cal.) (“We are not at liberty to create [exclusionary] rules which exclude relevant evidence that is not made inadmissible by the federal Constitution.”), ally, itis significant that in many of the cases that have rejected electronic recording claims, the courts have readily acknowledged the many benefits that would acerue to the criminal justice system from electronic recording''. In pursuit of those benefits, many of the same decisions strongly encourage or recommend that police electronically record interrogations and statements.’* One court observed that, “to the best of our knowledge, no court in any "B.¢., United States v. Torres-Galindo, 206 F.3d 144 n3 (Torruella, C.J.) (“This writer feels there is little doubt that accurate, contemporaneous recording of custodial statements would facilitate the truth-seeking aims of the justice system, and it would also facilitate review on appeal.”); Commonwealth v. DiGiambastisia, $29-30 (Mass. (“this court has repeatedly recognized the many benefits that flow from recording of interrogations"; noting that other ‘courts have found that recording “would act asa deterrent to police misconduct, reduce the number and length of ‘contested motions to suppress, allow for more accurate resolution of the issues raised in motions to suppress, and, at trial on the merits, provide the fact finder a complete version of precisely what the defendant did (or did not) say in any statement ot confession”); Gasper v. State, at 1040 (Inc. (“we fully acknowledge the many benefits that would flow from recording interrogations); Brashars v. Commonwealth, at 62 (Ky.) (“We agree with the view that widespread electronic recording has its benefits"); Siate v. Buzzel, at 1018 (Me.) (“there are obvious benefits to be realized when statements are recorded”); Baynor ¥, State, at 332 (Mad.) (“most courts acknowledge the usefulness of rule requiring the police to electronically record al statements obtained during custodial interrogations"); State v, Godsey, at 772 (Tean.) (citing benefits of recording); Jimenez v. State, at 696 (Nev.) (recordings “would alleviate the problems of credibility of police officers who claim a defendant made incriminating statements”); State v Kilmer, at 893 (W.Va) (recording would benefit “law enforcement,” “the suspect and the court”). "bg, Stoker v, State, at 1390 (Ind.) (“it is strongly recommended, as a matter of sound policy, that law enforcement officers adopt this procedure”); State v- Kekona, at 746 (“we nevertheless stress the importance of utilizing tape 7jurisdiction has ever concluded that the tape recording of custodial interrogations in places of detention would be detrimental.” (Emp. added) Stoker v. State, 1390 n,10 (Ind.), In addition, several hundred law enforcement agencies in this country voluntarily record interrogations, and the number is increasing, "* d. Holdings and Dicta: Related Connecticut Precedents Since this court decided State v. James, supra, in 1996, a number of Connecticut decisions have rejected similar claims on the strength of James.'* This court also has upheld a trial court's refusal to instruct a jury that, in evaluating the credibility of a defendant's confession, the jury could consider the fact that the police had the means and opportunity to electronically record the interrogation, but failed to do so. See State v. Corbin, 260 Conn, 730, 734-35, 740-43, 799 A.2d 1056 (2002) (‘I'he instruction “was not necessary because it overemphasized one piece of evidence, namely, the confession”). Cf, State v. DiGiambattista, recordings during custodial interrogations when feasible”); State v. Godsey, 772 (Tena,) (“sound policy considerations support its adoption as a law enforcement practice”); People v. Casias, at 857 (Cole,) (“we want to encourage, not discourage, the police from recording their interviews with suspects"); State 38 v. Kilmer, at 893 (W.Va, (“it would be the wiser course for law enforcement officers to record, either by videotape or by electronic recording device, the interrogation of a suspect where feasible and where such equipment is available”); State v. Hajtlc, 724 N.W.2d 449, 456 (Lowa 2006) ("We believe electronic recording, particularly videotaping, of custodial interrogations should be encouraged, and we take this opportunity to do so," Lara v: State, 25 P.3d 507 (Wyo. 2001) (“we agree with the district court that tape-recorded interviews do leave far fewer loose ends to be tied up and ‘in many, if not most, instances would be a well-advised protocol ta fallow"); State v. Sawyer, 561 So.2d 278, 280 Gla. App. 1990) (commending police departunent “in its practice of maintaining a record of interrogations through the use of tape recording and express hope that this policy will continue,” and “recommend{ing} this practice to all other law enforcement agencies so that challenges to future confessions can be exposed to the light of truth”). See also, State v. Farrell, 766 A.24 1057, 1063 (NH. 2001) (“In light of the benefits associated with videotaping, we suggest that, to the extent possible, custodial interrogation of juveniles be videotaped." "Sullivan, The Time Has Come for Law Enforcement Recordings of Custodial Interviews, Start to Finish, 37 Golden Gate U. L. Rey. 175, 178, 182-87 (2006) (list of more than 450 police end sheriff departments that routinely record a majority of custodial interrogations). Justa few years earlier, the number was closer to 300. See Sullivan, Electronic Recording of Custodial Interrogations: Everybody Wins, 951. Crim. L. &e Criminology 1127, 1128 (2008), “Sec, State v. Lapointe, 237 Conn, 694, 735, 678 A.2d 942 (1996) (rejecting state due process claim); State ¥ Jones, 44 Conn. App. 476, 484, 691 A.2d 14 (1997) (same); Jn re Jonathan M., 46 Conn. App. $45, 582-53, 700 ‘A.24 1370 (1997)(same); State v, Fernandez, S2 Conn, App. 599, 614-15, 733 A.2d 229 (1999) (rejecting supervisory authority claim); State v. Rizzo, 2005 Conn. Super. LEXIS 1685 (Mem, Dec. June 29, 2005, Prescat 4J,), 28-33 (recording requirement in capital felony cases rejected), 18| | | 533-34 (Mass.) (defendants are entitled to a cautionary instruction regarding unrecorded interrogations). In addition to these Connecticut holdings, it should be noted that three years after James, a former member of this court endorsed a recording requirement. State v, Fernandez, 249 Conn. 913, 916-17 (1999) (Berdon, J, dissenting from the denial of certification: “In my view, such a [recording] regime would go a long way toward assuring that the accused actually made a disputed statement”). More recently, a member of this court observed that “videotaping confessions would greatly aid both the trial court and the jury in evaluating the voluntariness and, ultimately, the reliability, of those confessions.” State v. Lawrence, 282 Conn. at 185 (Palmer, J., concurring). Apart from the Connecticut decisions directly addressing the recording issue, there are several state-specific factors favoring adoption of a recording requirement. i. This State’s Commitment to Miranda First, and foremost, this state has a proud history of commitment to the principles of Miranda, Long before the rest of the country knew for sure that the Miranda decision was constitutionally-based; see Dickerson v. United States, supra, this court had held that the warnings “have independent significance under our state constitution”; State v. Ferrell, 191 Conn. 37, 41, 463 A.2d 573 (1983); and are “independently required under the due process clause of article first § 8, of the Connecticut constitution.” State v. Barrett, 205 Conn. 437, 447, 534 A.2d 219 (1987). “The essential aim of the Miranda rule is to ensure that a suspect is properly and fully advised of the panoply of rights afforded by the state and federal constitutions and to guarantee that any waiver of those rights is knowing, intelligent, and voluntary.” State v. ‘Stoddard, 206 Conn. 157, 170, 537 A.2d 446 (1988). As stated in both Ferrell, at 41, and Barrett, at 447, “{t}he warnings represent the belief, deep-seated in the Anglo-American legal 19tradition, that a person accused of a crime may be convicted only if exacting measures have been taken to assure that the accused has been treated with the most scrupulous fairness by agents of the government”, Consistent with that concern for faimess, on at least two occasions this Court has invoked state due process principles to provide enhanced protection of Miranda-related rights for custodial suspects. In Ferrell, the Court found a violation of article first § 8, when police were allowed to testify at trial about conversations they overheard while the defendant, who was in custody at the police station, was speaking by telephone to an attomey. Five years later, in Stoddard, this court refected the restrictive view of a custodial suspect's access to counsel, that had been adopted in Moran v. Burbine, 475 U.S. 412, 106 8.Ct. 1135, 89 L.Ed. 24 410 (1986). Instead, this court held that the due process clause of article first § 8, requires that a custodial “suspect must be informed promptly of timely efforts by counsel to render pertinent legal assistance.” State v, Stoddard, 166, Notably, after reviewing the state history of the ‘right to counsel that attaches afier the initiation of adversary judicial proceedings,” the court noted that the same history “also informs the due process concerns raised by police interference with counsel’s access to a custodial suspect.” (Emp. added) Jd. The Stoddard court also “recognized, once again, the” “unique ability” of counsel to protect the rights of a client undergoing, or confronting the imminent possibility of, interrogation.” Id. See State v. Barrett, at 447-48, Inasmuch as there is no formal right to counsel at a pre-arraignment interrogation, under the federal or state constitutions, it is all the more important that this court adopt every reasonable "See State v. Pierre, 277 Conn, 42, 89-99, 890 A.2d 474, cert denied 126 S.Ct. 2873 (2006) (Sixth Amendment right to counsel not triggered until after the initiation of adversarial judicial proceedings; reaffirming that rule of Kirby v. Minots, 406 US. 682, 688, 92 S.Ct. 1877, 32 LEd.2d 411 (1972) applies); State v. tenner, 281 Conn. 757- 67 (saane rules apply for attachment of right to counsel under article frst § 8). 20/ / safeguard-such as electronic recording of custodial interrogations and advisements of rights-to insure that the Miranda right to consult with an attorney during interrogation, is being honored. Ferrell and Stoddard demonstrate the court’s commitment to making sure Miranda works. A recording requirement would complement and reinforce that commitment;'® and be consistent with carly Connecticut precedent that approved of the practice of giving “warnings" to individuals being questioned by government officials.'” ii, The Standards and Burdens for Proving Miranda Waivers A second state-specific factor is that Connecticut continues to adhere to the minimal constitutionally-acceptable standard of proof-preponderance of the evidence-for proving a Miranda waiver and the voluntariness of a confession. See State v, Lawrence, 282 Conn 141 (rejecting claim that voluntariness should be proved beyond a reasonable doubt). Protections. must come from somewhere. In light of this court's unwillingness to hold the state to a higher standard of proof, it should adopt a recording requirement that would help insure that trial court and appellate court review of Miranda and voluntariness claims~—under the lowest permissible burden of proof—is as accurate as possible, A recording requirement would thus aid this court in discharging its “constitutional fact-finding” fonction when reviewing suppression rulings, where the court's “usual deference to factfinding by the trial court is qualified . . . by the necessity for an independent and scrupulous examination of the entire record to ascertain whether the trial court's finding[s] [are] supported by substantial evidence.” State v. Smith, 200 Conn. 465, 478, "In Stoddard, former Chief Justice Peters wrote: “We do not lightly undertake to impose additional responsibilities upon the law enforcement officials of this state but will do so where constitutional rights are squarely implicated.” I, 167. "see State v. Coffee, 56 Conn. 399, 16 A.151 (1888) (prior to testifying at coroner's hearing, defendant was cautioned by coroner that “he need not say anything unless he chose; that he could not compel him to make any statement, but that if he desired he might make any statement; that he, the coroner, would take it, and that he noed aot say anything unless he had a mind to”; State v. Willis; 71 Conn. 293, 313-14, 41 A.820 (1898) (defendant made admission in the presence of the sherif, “after the accused had been duly warned” that any statement might be used against him); Stare v. Castelli, 92. Conn. 58, 66-67, 101 A.476 (1917) (“the notary warned Castelli in writing that anything he signed might be used against himm;" his confession to coroner was “prefaced by a written warning in the form approved by this court in” Coffee and Willis) 21512 A.2d 189 (1986); State v. Reynolds, 264 Conn, 1, 43, 836 A.2d 224 (2003). Without a recording, this court can scrupulously examine only an incomplete record. See State v. Kekona, 7AI (Haw.) (Levinson, J., concurring and dissenting) (“the informational vacuum created by the lack of a verbatim rendition of [a defendant's] interrogation diminishes the reliability of an “appellate court’s examination of the record), iii. The Preservation of Evidence A recording requirement would promote this court‘s commitment to the preservation of evidence, It is no secret that “evidence of a defendant's alleged statement or confession is one of the most significant pieces of evidence in any criminal trial,” Commonwealth v. DiGiambattista, 532 (Mass.); Gasper v. State, 833 NE. 2d 1041 (same), “and its potent quality is only magnified when the statement or confession is presented to the fact-finder through the testimony of the interrogating officers.” Id., 1041. See People v. Combest, 828 N.B.2d 583, 587 (NY 2005) (‘Itis, beyond dispute that a defendant's own statements to police are highly material and relevant to a criminal prosecution.”). In fact, statements made in response to police interrogation would qualify as “testimonial” statements for Confrontation Clause purposes. See Crawford v. Washington, 541 U.S. 52-53, 68; Davis v. Washington, $47 U.S. $13, 822, 126 S.Ct. 2266, 165 L.Bd.2d 224 (2006); Siate v. Kirby, 280 Conn. at 380-81. A recording of any police interrogation would also constitute a “statement” under P.B.§ 40-15, and a defendant would be entitled, upon request, to obtain a copy of the recorded statement under PB. § 40-11(a)(1), if it was exculpatory, or under §(a)(6)(i), if it was not. See also Gen. Stat. § 54-86b. In rejecting a recording requirement in Stare v. James, the Court concluded that “corroboration” of confessions, statements, or waivers of rights, traditionally has not been required in this state. State v. James, 237 Conn. 429-31. A contemporaneous electronic recording of an oral statement is, however, not just “corroborative” of the statement or 22is the statement or confession—because recording is the only way we currently confession; have of directly capturing the content and tone of the uttered, evanescent words. That is why lence, rather than as electronic recording can be described as “ereating” or “preserving” e\ simply “corroborating” evidence, See, Commonwealth v. DiGiambattista, at 533-34 & n,23 (repeated references to recording as “preserving” critical evidence); State v. Spurgeon, 962 (Wesh.) (“it is not technically a matter of preservation of evidence but rather the creation of additional evidence in the form of a tape of the interview”). Given the significance and primacy of a defendant's “testimonial” statements to the police, should not the Connecticut constitution insist on the “best” evidence of the defendant's words? See Sumlin v. State, 587 S,W.2d 571, 577 (Ark. 979) (“the tape [of defendant's statement] was the best evidence of the confession”) (Emp, added); State v. Jones, at 279 (Ariz.) (“Recording the entire interrogation process provides the best evidence available"); Metcalf v. Commonwealth, 158 $.W.3d 740, 747 (Ky. 2005) (“it ‘would be ideal for the trial court to have perfect evidence in the form of a recording when determining the voluntariness of a confession”). A recording requirement would be consistent with Connecticut precedent governing “the Jailure of the police to preserve evidence that might be useful to the accused,” namely, State v. Morales, 232 Conn. 726-27. (Emp. in original.) In Morales, this court held that in determining whether a defendant's rights were violated by the failure of the police to preserve potentially exculpatory evidence, a defendant need not show bad faith by the police, which is an essential prerequisite under Arizona v. Youngblood, 488 U.S. 1051, 109 S.Ct. 333, 102 L.Ed.2d 281 (1989). Bschewing the federal “litmus test of bad faith,” the court held that Connecticut citizens ‘were entitled to greater protection under our state due process clause, and that the Asherman'® "Under the balancing test of State v. Asherman, 193 Conn. 695, whether a defendant has been deprived of his right to due process under the state constitution “depends upon the materiality of the missing evidence, the likelihood of ‘mistaken interpretation of it by witnesses or the jury, the reason for its nonavailability to the defense and the 23balancing test was “dictate[d]" by “[AJaimess.” Id., 723, 726-27. See State v. Estrella, supra, 488-89 (applying Asherman test). iv. Conneticut Supreme Court’s Experience with Recorded Interrogations Electronic recording has a track record. More than thirty years ago, interrogations and statements were being tape-recorded, on an ad hoc basis, by state and local police.'? And this court has occasionally relied on such recordings when reviewing claims on appeal. A prime example is State v. Frazier, 185 Conn, 211, where the defendant claimed on appeal that the trial court erred in finding a valid Miranda waiver, The availability of the recording enatiled this court: (1) to determine when the interrogation began, id., 223 (“The tape indicates that as soon as the waiver form had been initialed and signed by the defendant, officer "Aiuto began to question the defendant”); (2) to identify “misstatements” by the police, id., 223-224 (“Detectives D‘Aiuto and Smith before the tape was played said they did not think the defendant had told them he was illiterate as the tape recording demonstrates he did”) (Emp. added); and (3) to evaluate the merits of the defendant's claim, id., 226 (factors indicating an effective waiver included defendant's “excellent comprehension of the questions asked of him and insistence upon clarification of them, his reasonably articulate responses, and his artfulness prejudice to the defendant caused by the unavailability of the evidence.” Id., 724; State v. Morales, supra, 727; State v. Estrella, 277 Conn, at 483, “The first factor serutinizes the state's involvement, and the remaining three examine the impact on the trial.” fd. "State police: State v, Derrico, 181 Conn, 151, 154-56, 434 A.2d 356 (1980) (taped interrogation on Tune 19, 1976, at Hartford state police barracks); State v. Osiroski, 186 Conn, 287, 290, 518 A.2d 915 (1982) (tape recorded interrogation on April 16, 1977, at Litchfield state police barracks); State v. Acguin, 187 Conn. 649, 652 (tape recorded interview of defendant on July 22, 197, at Bethany state police barracks). See also, State v. Lorain, 141 Conn, 694, 697-701, 109 A.2d 504 (1954) (defendant's tape recorded statement, given to Connecticut stale police, in Rhode Island, on August 20, 1952); Local police: State v. Frazier, 185 Conn. 211, 219-226, 440 A.2d 916 (1981) (tape recorded interrogation on November 17, 1974, at Westport police station); State v. Krajger, 182 Conn. 497, 498-99, 438 A.2d 745 (1980) (tape recorded questioning on Feb. 26, 1975, at Bridgeport police headquarters); Talton v. Warden, 171 Conn. 378, 379-80, 383, 370 A.2d 965 (1976) (interrogation tape recorded at New Haven police department on unspecified date); State v Falby, 187 Conn. 6, 9, 444 A.2d 213, (1982) (defendant's murder ‘confession “was recorded on tape” at Westport police station on June 16, 1978); Stare ». Young, 191 Conn. 636, 469 A.2d 1189 (1983) (defendant's confessions were tape recorded at New Haven police department on March 4, 1979); State v, Mercer, 208 Conn. 52, 66 (“a video camera was set up to tape the interview” at Stemford police department in December 1984). See also, Kilpatrick v. Kilpatrick, 123 Conn. 218, 223-25, 193 A.2d 765 (1937) (“speak-o phone” discs admitted in evidence) 2%in denying the more reprehensible acts charged against him, as evidenced by the tape recording.” (Emp. added). See aiso, State v. Ferrell, supra, 39-40 (although a state trooper testified that he overheard the defendant say to his lawyer, ““I killed him,” a tape recording of the conversation revealed that the defendant made “no arguably inculpatory statements” during his conversation with that lawyer) (Emp. added); State v. Acquin, 187 Conn, 647, 652-54 & n.3, 448 A.2d 163 (1982) (taped interview suggested an "attempt by officers to explain away the import of the fundamental constitutional rights contained in the Miranda warnings"); State v. Roman, 224 Conn. 63, 68, 75-77, 616 A.2d 266 (1992) (reviewing Miranda claim, and noting the defendant's "acknowledgment, in Spanish, toward the end of the taped recording of his interview, that he had fully understood what had transpired"); State v. Roseboro, 221 Conn. 430, 443, 604 A.2d 1286 (1992) (“Our independent review of the record, the exhibits, and the tapes of tie interviews with the defendant persuades us that, as a matter of federal constitutional law, the trial court's finding of voluntariness was not clearly erroneous.”); State v. Turner, 267 Conn, 414, 418-19, 838 A.2d 947 (2004) (“interrogation [at Bridgeport police department on March 8, 1998) lasted about thirty or forty minutes, three to four minutes of which were recorded”; “we have reviewed the transcript of the defendant's recorded police interview” in evaluating his Miranda claim). e. Sociological and Economie Factors: Policy Considerations Electronic recording of interrogations would benefit all segments of the criminal justice system-jurors, defendants, police, prosecutors, defense lawyers, trial and appellate judges, and the public. The benefits would include: "The United States Supreme Court also has relied on a tape recording to resolve a Miranda claim, See California v. Prysock, 453 US. 355, 356-61, 101 $.Ct. 2806, 69 L.Ed 2d 696 (1981) (tape of warnings), 25. Existence of a verbatim and objective account of the confession This would provide a verbatim, accurate, neutral and objective account of what took place in the otherwise secret” interrogation room.” Although police occasionally lie, or exaggerate, as this Court has acknowledged, “a more basic factor animates the need and provides the justification for a recording requirement-the fallibility of human memory."* The problem is especially acute in the context of oral statements, because earwitnesses may be worse than eyewitnesses.” “[A]ecuracy and reliability together ought to be the defining purpose-the **“Interragation still mikes place in privacy, Privacy results in seerecy and this in turn results ia a gap in our knowledge as to what in fact goes on in the interrogation rooms.” Miranda v. Arizona, 384 US. at 448. $vephan v. State, at 1161 (recording “provides an objective means for evaluating what occurred during interrogation”); State v. Cook, at 555-56 (NI) (“Paramount isthe obvious benefit derived from a recording that ‘creates an objective, reviewable record."); State vs Kekona, at 746 (*hawing an electronie recording ofall custodial interogations would undoubtedly assist the trier of fat in ascertaining the tu"; it would “obviat(e the ‘swearing contest” which too often arises when an accused maintains tha she asserted her constitutional right to remain silent or zoquested an attomey and the police testify tothe contrary,” show “te actual content of the statement™); Drizin & Le0, The Problem of False Confessions in the Post-DNA World, 82 N.C.L.Rev. 891, 997 (2004) (“taping imerrogations creates an objective, comprehensive and reviewable tevord of the interrogation”), Sackman, False Confessions: Rethinking a Contemporary Problem, 16 Kan 1L. & Pub,Policy 208, 229 (2006-07) ("The video medium will preserve the nuances in voice inflection and body language that are absent from a writen confession."); Soree, When the Innocent Speak: False Confessions, Constitutional Safeguards, and the Role of Expert Testimony, 32 Am. J. Crim. L, 191, 258 (2005) (“an audio or videotape of the confession would provide the immense benefit of an impartial, undisputed version of what reaily occurred within the confines of the interrogation room") 2 State v. Willis, 71 Conn. at 307 (noting “ie Hibilty of inferior police officers to report untrly or inaecurately the chance expressions or conversetions of prisoners in their charge”); Stare», DiBatista, 110 Conn. 549, 63, 148 ‘A.2d 664 (1930) (acknowledging “the occasional liability ofa police officer dhrough his eal, to report inaccurately the statements of an accused, orto exaggerate them") See Stephan v. State, 711 P.24 1161 (“Human memory is often faully-people forget specific facts, or reconstruct and interpret past events differently."); Commonwealth v. DiGiambattsta, at $33 (even when “aided by a contemporaneous written statement or summary report, the officer ean at best reconstruct only a portion of what was said over the course of an interrogation conducted months and oftentimes years prior to the time the officer testifies”); Leo & Ofthe, Missing the Forest forthe Trees: A Response to Paul Cassell's ‘Balanced Approach’ to the False Confession Problem, 74 Denv. U. L. Rev. 1135, 1137 (1987) (“Any attempt to reconstruct what occurred during an interrogation and what a suspect independently knew is necessarily undermined by the lack ofa record hhumen memory for conversation is limited an¢ recall is selective due to the position bias of the participant.”); Drizin &: Leo, The Problem of False Confessions, pp.995-97 (“Unlike the testimony of two disputants, the videotape does not suffer from the falibilty and biases of humen memory and judgment, bu, instead, preserves a record of the interrogation that is complete and factually accurate.) Conviction or acquittal may tum on the precise wording of out-of-court [oral] statements.” Duke, Lee & Pager, A Picture’s Worth a Thousand Words: Conversational Versus Eyewitness Testimony in Criminal Cases, 44 Am. Crim. L. Rey, 1 (2007). “Studies have unanimously demonstrated that surface memory [a person's recall of “the actual words, phrases, intonation and gestures used in the conversation”|, in particular, is amazingly short-lived. In fact, 26lodestar and raison d “etre-of a moral and efficacious criminal justice system.” Milhizer, Rethinking Police Interrogation: Encouraging Reliable Confessions While Respecting Suspects’ Dignity, 41 Val.U.LRev. 1,77 (2006). By providing an accurate account of an interrogation session, a recording requirement would provide the most satisfactory evidence for resolving the questions that routinely arise in interrogation cases, such as: (@) Whether a defendant was “in custody,” and therefore entitled to Miranda ‘warnings, an issue on which the defendant has the burden of proof. See State v. Tomasko, 238 Conn, 253, 269, 681 A.2d 922 (1996); (b) Whether the Miranda warnings were given, and whether their content was sufficient to make the defendant aware of his constitutional rights. See, e.g., State v. Ferrell, supra, 41 (“The primary purpose of the Miranda warnings is to ensure that an. acoused is aware of the constitutional right to remain silent before making statements to the police.”) (Emp. added); State v. Gray, 200 Conn. 523, 530, 512 A.2d 217 (1986); (©) Whether the warnings were understood. State v. Shiffleit, 199 Com. 718, 731, 508 A.2d 748 (1986) (“the state must demonstrate: ... the defendant understood his rights”) (Emp. in orig.); (@ Whether “the defendant's course of conduct indicated” that he waived his rights under Miranda, See Shifflett, 731-32; (©) Whether, if the defendant invoked his right to counsel, the request was honored, State v. Barrett, 205 Conn. 448-49; (® Whether the defendant confessed or made admissions. See, e.g., State v. Fernandez, $2 Conn. App. 602-04 (one officer testified that defendant made an oral surface memory begins fading within 80 syllables of hearing.” /4., 14-15, The authors argue that testimony about prior conversations is “more likely to be inaccurate, more likely to be believed by jurors, and more likely to produce imeversible errors than eyewitness testimony.” Id, 8.9. 27| statement, but another officer who was present “did not recall whether the defendant made any statements prior to being read his Miranda rights”), and id., 249 Conn. at 914 (Berdon, J, dissenting from denial of certification) (one officer testified that the defendant confessed; the defendant denied confessing, and two other police officers who were present “did not corroborate the allegation made by their fellow officer”). (g) Whether any statement given was voluntary under the “totality of the circumstances,” an issue that focuses not only on what the defendant is experiencing, but ‘on what interrogators are doing and saying; (b) Whether police have crossed the line between the permissible use of deceit and deception, and the prohibited use of coercion. See Commonwealth v. Scoggins, 789 N.E.2d 1080, 1084 n. 4 (Mass. 2003) (“Because the interrogation was recorded, we were able to confirm the precise words used when the defendant was confronted with the evidence against him. Given the fine line between proper and improper interrogation techniques, the ability to reproduce the exact statements made during an interrogation is of the utmost benefit.”). See also, State v, Lawrence, 282 Conn.176 (“although ‘some types of trickery can entail coercion . .. trickery is not automatically coereion’™); State v. Stoddard, 206 Conn.170 (“police misconduct can figure importantly in the assessment of waiver, particularly when allegations of threats, promises and untoward inducements are made”).26 See also, Thomas, Regulating Police Deception During Interrogation, 39 Tex.Tech.L. Rev.1293, 1294 (2007) ‘Any regulation we place on police ean be effectively enforced only by having a tape thatthe suppression hearing judge can view"); Magid, Deceptive Police Interrogation Practices: How Far is Too Far?, 99 Mich, L. Rev. 1168, 1169 (2001) (“Because most deception is employed only after the suspect executes a valid waiver of Miranda rights, Miranda offers suspects litle protection fiom deceptive interrogation techniques.”); Mosteller, Police Deception Before Miranda Warnings: The Case for Per Se Prohibition of an Entirely Unjustfied Practice at the Mast Critical Moment, 39 Tex.Tech.L-Rev. 1239 (2007) (discussing use of deception prior to administration of warnings), Gohara, 4 Lie for a Lie: False Confessions and the Case for Reconsidertng the Legality of Deceptive Interrogation Techniques, 33 Fordham Urb.L.J. 791 (2006). 28(i) Whether the police have engaged in perjury which (in some jurisdictions) ‘occurs most often in suppression hearings;”” and G) Whether potice have engaged in creative attempts to evade Miranda's commands, such as the “question-first” technique denounced in Missouri v. Seibert, 542 U.S. 600; see English, You Have the Right to Remain Silent. Now Please Repeat Your Confession: Missouri v. Seibert and the Court's Attempt to Put an End to the Question- First Technique, 33 Pepp. L. Rev. 423 (2006); or have tried to dissuade a suspect from consulting with counsel, White, Deflecting A Suspect from Requesting an Attorney, 68 U. Pitt. L. Rev. 29 (2006). ii, Aid to Jurors “[A}liow{ing} jurors to make a more informed evaluation of the quality of the interrogation and the reliability of the defendant's confession, and thus to make a more informed Accision about what weight to place on confession evidence. “State v. Kekona, 745-56 (Haw.) (having an electronic recording of all custodial interrogations would undoubtedly assist the trier of fact in ascertaining the truth"); Commonwealth v, DiGiambattista, supra, $32 (when fact finder has to rely on the “selective and biased” testimony of a police officer and the defendant, “the fact finder has a woefully incomplete and inherently unreliable version of what everyone recognizes as critical evidence in the case”); State v. Cook, 556 (NJ) (recording would provide “juries with a more accurate picture of what was said, as words can convey different meanings depending on the tone of voice or nuance used”); People v. Combest, 828 N.E.2d at $89 (“a jury's assessment of the voluntariness of defendant's statements may, . . . involve more than an "See Chin & Wells, The "Blue Wall of Silence” as Evidence of Bias and Motive to Lie: A New Approach to Police Perjury, 59 U. Pitt L. Rev. 233, 234, 237, 248 (1998) (“A more common motive for police perjury is to evade the exclusionary rule by Lying in a suppression hearing."; “Perhaps the most common form of police perjury occurs in suppression hearings. ..."}; Zeidman, Policing the Police: The Role of the Courts and the Prosecution, 32 Fordham ‘Usb. L. J. 315, 323-24 (2005) (“Testimonial perjury-false testimony under oath-rears its head particularly in suppression hearings.”) 29| | | | analysis of the words spoken to and by him”; only a recording can “establish those intangibles that might properly be considered”). See Drizin & Leo, at 998. Prevention or reduetion of the incidence of false confessions Helping to prevent or reduce the incidence of false confessions, a problem that recognized in the nineteenth century” and one that has received much recent attention, particularly in light of DNA exonerations in cases in which defendants had falsely confessed.” iv. Aid to appellate review Enhancing trial court and appellate court review of cases involving those for whom Miranda‘s words have less or little meaning-the mentally retarded and juveniles.” See State v. Coffee, 56 Conn. 399, 414, 164.151 (1888) (“A person may be induced by hope or fear to confess guilt when he is in fact innocent, hoping thereby to escape some of the consequences of an unfortunate combination of circumstances.”); State v. Wills, 7t Conn. 307 (noting "the liability of accused persons after their arrest, upon promise of favor from those having contro} of the prosecution, to untruly admit guilt or misstate criminatory acts for the purpose of securing immunity through the promised favor") 29500 Staie v. Lawrence, 282 Conn. 185 (Palmer, J., concurring} (“recording confessions would dramatically reduce, ifnot eliminate, any possible likelihood of an erroncous conviction predicated on an involuntary confession”); id 186, 197, 198 (Katz, J, dissenting) (noting "the growing body of evidence tht has come to light since James demonsitating the problem of erroneous convictions generally and false confessions specifically"), Stave v. Willis, at 307; Stephan v. State, supra, 1161 (electronic recording “protects the defendants constitutional rights, by providing an objective means for him to corroborate his testimony conceming the circumstances of the [possibly False") confession”); Drizin & Leo, supra,995-97 (‘“The risk of harm caused by false confessions could be greatly reduced if police were required to electronically record the entirety ofall custodial interrogations of suspects.”); Sackman, False Confessions, at 228 (“{t]he first step in climinating false confessions is to open the interrogation room" through mandatory recording); Hirsch, Threats, Promises, and 50 False Confessions: Lessons of Slavery, How. LJ. 31, 32 (2005) (“Based on statistics and other data, there is reason to believe that false confessions occur with stogeetng frequency.”); Scheck, Neufeld & Duyer, ACTUAL INNOCENCE (Doubleday 2006) p. 92, 256 ("Among DNA exonerations studied by the Innocence Project, 23 percent of the convictions were based on false confessions or admissions”; recommending “[ojne simple rule: Videotape, oF at least audiotape, all interrogations so ‘there is an objective record.”). Sec State v. Lawrence, 283 Conn. 185 (Palmer, J., concurring) (since “the risk of a false confession is appreciably sreater in cases of juveniles end persons with mental disabilities... videotaping confessions by such persons would serve an especially salutary purpose”); Morgan Cloud et. al, supra, 501 1¢ [test] results indicate that mentally retarded people simply do not understand the Miranda warnings,” and the warnings “also are incomprehensible to people whose mental retardation i classified as mild, as wel as some people whose ‘intelligence quotient (1Q) scores exceed 70, the number typically use to demarcate mental retardation.”), "Some studies have indicated children do not understand their rights under Miranda.” Matrus, Can 1 Talk Now?: Why Miranda Does Not Offer Adolescents Adequate Provection, 79 Temp. L. Rev. 515, 325-26 (2006); Boyd, "T didn't do it, Twas forced 10 say ‘hat did": The Problem of Coerced Juvenile Confessions, and Proposed Federal legislation to Prevent Them, 87 How, L. 1.395 2004), 30v. Conservation of legal and judicial resources This would conserve legal and judicial resources, while improving the reliability of appellate review. For example, in jurisdictions where recording is required, prosecutors have reported that “[dJefense motions to suppress based on alleged coercion and abuse drop off. dramatically, and the few that are filed are easily resolved by the recording,” Sullivan, Everybody Wins, 1129. It must not be overlooked that Connecticut prosecutors enjoy a unique role in the criminal process.” Given that role, a persuasive argument can be made that “officers of the court” and “ministers of justice” have a professional responsibility to promote electronic recording. See Nelson, Preserving the Public Trust: Prosecutors’ Professional Responsibility to Advocate for the Electronic Recording of Custodial Interrogations, 44 Willamette LRev. 1 (2007) {in the absence of recording, “those responsible for checking the integrity of interrogations-such as prosecutors-can do little except trust the word of the interrogator”). As for judicial resources, the best “proof that a recording requirement saves time and effort, comes from the Supreme Court of Minnesota, which stated in 2002: Although no empirical studies have been published assessing the impact of the Scales decision, from our vantage point the recording requirement has had positive effects. We take judicial notice of the fact that fewer cases come before us in which a key issue is whether a suspect waived his or her constitutional rights during interrogation. The apparent reduction in appellate cases challenging Miranda warnings and waivers suggests that Scales has succeeded in providing an objective record to answer the contentious disputes around those issues (Emp. added) State v. Conger, 652 N.W.2d 704, 707 & n.1 (2002). See Stephan v. State, 1162 (Alaska) (less time, money and resources would have been consumed in resolving the disputes that arose over the events that occurred during the interrogations”); Commonwealth v: DiGiambattista, 813 N.E.24 529 (Mass.) (“As is all too often the case, the lack of any recording *See, State v. Ferrone, 96 Conn. 160, 168-69, 113 A.2d 452 (1921) (state's attorney is “a high public offices”); Massameno v. Statewide Grievance Committee, 234 Conn. $39, 555, 663 A.2d 317 (1995) ("Because prosecutors {are} viewed as ministers of justice, their duties [are] considered quasi-judicial and ‘not purely those of an executive officer.” 31has resulted in the expenditure of significant judicial resources (by three courts), all in an attempt to reconstruct what transpired during several hours of interrogation conducted in 1998 and to perform an analysis of the constitutional ramifications of that incomplete reconstruction”); State v, Lapointe, 237 Conn. 703 (to resolve confession claims, “{tJhe trial court conducted a suppression hearing over the course of twenty-four days, during which it heard testimony from thirty-one witnesses”); Kamisar, Foreword: Brewer v. Williams-A Hard Look at a Discomfiting Record, 66 Geo.L Rev. 209, 238 (1977) (“In all likelihood the use of a recording device, a tiny administrative and financial burden, would have spared the state the need to contest the admissibility of Williams’ disclosures in five courts for eight years.”). As for facilitating judicial review, a recording requirement “will help trial and appellate courts to ascertain the truth”. Stephan v. State, 1161 (Alaska). See Commonwealth v. Jackson, 855 NE.2d 1097, 1106 n.18 (Mass. 2006) (“The videotapes were invaluable to our review of [the defendant}’s confession and the motion judge’s rulings that it was voluntary and preceded by a series of knowing, voluntary, and intelligent waivers.”) vi. Aid (0 law enforcement This would “aid[ ] law enforcement efforts, by confirming the content and the voluntariness of a confession, when a defendant changes his testimony or claims falsely that his constitutional rights were violated.” Stephan v. State, 711 P.2d 1161. “[A]ctual experience with recording of interrogations has confirmed that the benefits expected from the procedure have indeed materialized, and most of those benefits ultimately inure to the prosecution, not to the defendant.” DiGiambattista, 531. This would also protect the police from unjustified claims of abuse, mistreatment, or violation of constitutional rights. Stephan, 1161 32| | | I} | vii. The public’s interest in honest and effective law enforcement This would also “protect the public's interest in honest and effective law enforcement,” Stephan v. State, 1161, and, through transparency, improve public confidence in the integrity of our law enforcement and judicial systems.” On the other side of the ledger are the “costs” associated with a recording requirement, and which the court discussed in State v. James, 237 Conn, 390. First, the court noted the possibly “substantial” costs of purchasing and maintaining recording equipment. /d., 433. However, rapid advances in technology have made recording easier and less expensive, in terms of equipment and storage. See United States v. Torres- Galindo, supra, 144 n.3 (Torruella, C.J.) (noting the “inexpensive means readily available for making written, audio, and video recordings"); Commonweaith v. DiGiambattista, 531 n.2I (the n to the costs of having officers spend “minimal” financial cost is “dwarfed by compari countless hours testifying at hearings and trials in an attempt to reconstruct the details of unrecorded interrogations"), Itis difficult to conceive of a police department in Connecticut not already owning at least a tape recorder, and probably a video camera, and a single office computer is capable of storing many years worth of interrogation sessions. Furthermore, any startup costs for equipment or training would be more than offset by “saving the time and costs of lengthy contested pretrial and trial hearings as to what occurred during custodial interrogations, because recordings make extensive testimony unnecessary.” Sullivan, Northwestern Univ. School of Law Special Report, Police Experiences with Recording Custodial Interrogations 23 (2004). “Sullivan, Everybody Wins, p.1130 (Public confidence in police practices increases, because recordings «demonstrate that officers conducting closed custodial interviews have nothing to hide from public view."); Stephan », State, 711 P.2d 1164 (“The integrity of our judicial system is subject to question whenever a court rales on the admissibility ofa questionable confession, based solely upon the court's acceptance ofthe testimony of an interested Party, whether i be the interrogating officer or the defendant.” 33‘The James court also believed that a recording requirement “might severely inhibit the police in pursuing, by constitutionally valid methods, confession evidence.” 237 Conn. at 433. Similar concems were expressed many years earlier, when it was thought that Miranda would seriously impede the questioning of suspects, but that has not been the case.°? So too with recording requirements. “Based on experience to date in other jurisdictions, those fears [that suspects will refuse to talk if they know they are being recorded] appear exaggerated.” DiGiambattista, 813 NE.2d 531. The available studies suggest that, like Miranda itself, a recording requirement does not appreciably diminish the police ability to engage in questioning, or obtain confessions, In fact, the opposite may be true." Former United States Attorney Thomas P. Sullivan, a Co-Chair of the Illinois Governor's Commission whose recommendations led to enactment of the Lllinois recording statute, is a leading expert on the practical effects of recording requirements. Having interviewed many Statistical analyses conducted by Miranda’s critics and supporters indicate that waivers are secured in an overwhelming majority of custodial interrogations.” Cloud, et al., Words Without Meaning: The Constitution, Confessions, and Mentally Retarded Suspects, 69 U. Chi. L. Rev. 495, 497 & n.11 (2002) (iting studies showing that about 75-80 percent of custodial suspects waive Miranda rights); O'Neil, Why Miranda Does Not Prevent. Confessions: Some Lessons from Albert Camus, Arthur Miller and Oprah Winfrey, 51 Syracuse L. Rev. 863, 864 & 1.9 (2001) (°78% of suspects waive their rights and agree to be interrogated by police without the assistance of a lawyer"); Thomas, Miranda's Illusion: Telling Stories in the Police Interrogation Room, 81 Tex. 1. Rev. 1091, 1092 (2003) 4.1992 report to the National Institute of Justice found that almost 60% of the police or sheriff's departments that recorded interrogations reported an increase in the amount of ineriminating information obtained from suspects. Geller, Police Videotaping of Suspect Interrogations and Confessions: A Preliminary Examination of sues and Practices 106, 108 (NJ. 1992). More recent studies seem to confirm this. See Sullivan, Police Experiences with Recording, at 19-23 (2004) (hitp://www jenner.com/policestudy) (“There i litle conclusive evidence to show that the use of videotape has any significant effect on the willingness of suspects to talk... the majority of agencies that videotape found that they were able to get more incriminating information from suspects on tape than they were in traditional interrogations.” (quoting from 1998 “Policy Review” published by the International Association of Chiefs of Potice and the National Law Enforcement Poliey Center); Thurlow, Lights, Camera, detion: Video Cameras as Tools of Justice, 23 1. Marshall 3, Computer & Info. L. 771, 800-01 (2005) (studies indicate that “recordings have no impact on the likelihood of confession,” end “recording did not interfere with police officer's use of standard interrogation techniques”); Oliver, Mandatory Recording of Custodial Interrogations Nationwide Recommending a New Model Code, 39 Suffolk U. L. Rev. 263 (2005) (“Contrary to stated concerns, in jurisdictions that routinely record interrogations, recording has not led to 2 decrease in confessions or productivity."); Slebogin, An Empirically Based Comparison of American and European Regulatory Approaches to Police Investigation, 22 Mich J. LL. 423, 450 (2001) (“Reports on the English experience similarly indicate that, at worst, taping has not diminished the confession rate". 34police officials and prosecutors around the country, he found that” [t]he usual opponents [of recording] are law enforcement officers who insist they do not use improper tactics and do not misstate what occurred, and argue that there is no need to require them to use this expensive, cumbersome method of recording custodial interviews.” Sullivan, The Time Has Come, at p.177. However, once police officers have been exposed to recording, they “enthusiastically endorse” it and “become outspoken supporters”; and Sullivan has “yet to speak with one who wants to revert to non-recording.” /d., 178-79. As one “veteran prosecutor in Minnesota” told Sullivan, the recording requirement was “the best thing we've ever had rammed down our throats.” Sullivan, Everybody Wins, 1127. In James, the court also observed that “the cost of noncompliance with the [recording] mule advanced by the defendant, due to negligence or for other reasons, is the loss of otherwise admissible, probative evidence of guilt.” 237 Conn, at 434. ‘That cost has not proved to be significant elsewhere, because jurisdictions with recording requirements have allowed for certain “excusable” violations of a recording rule.* £. Concluding Thoughts “The only people who like change are babies with wet diapers.”** But we inhabit a rapidly changing society where recording is easy and ubiquitous. Crime scenes often are videotaped, and our civil and criminal rules permit judges to allow depositions to be recorded by videotape rather than by stenographic means. See P.B, § 13-27(1)(1), (0)(2); P.B. § 40-49. Our laws permit the use of videotaped testimony in certain circumstances; see State v. Jarzbek, 204 See e.g., Stefan v. State, supra, 1162, 1165 (“Acceptable excuses might include an unavoidable power or equipment failure, or a situation where the suspect refused to answer any questions if the conversation is being recorded") State v. Seales, $18 N.W.2d 592 (Minn) (suppression required only ifthe violation ofthe recording requirement is deemed “substantial, State .Iuman, 692 NW 266,81 (Minn, 2005) (one factor in termining "Substantalty” of violation s wheter it was prejudicial fo the defendan “Remark attibuted to unnamed detective, in Geller, Videotaping Interrogations and Confessions, NIJ Research in Brief (March 1983) p.11. 35Conn. 683, 704, $29 A.2d 1245 (1987); Gen. Stat. § 54-86g; and many police cruisers have dashboard-mounted cameras to record motor vehicle stops of suspected drunk drivers. Camera cellular phones are everywhere, and we are all often “on camera” when we enter public buildings, including many police departments. Iis self-evident that “(t]he police already make use of recording devices in circumstances when it is to their advantage to do so.” (Emp. added) Stephan v. State, 711 P.2d 1162, This court should reject such an ad hoe, discretionary approach, under which the police unilaterally decide when and whom to record. A systemic solution is needed, This court should not be averse to “separating [itself] from the pack when it [is] the right thing to do.” State v. Kekona, supra, 751 n.5 (Levinson, J., concurring and dissenting). And no one seriously disputes that recording is the right thing to do. Its scholarly proponents have been many, ever since ions.” Professor Borchard suggested in 1932 the use of “phonographic records” to record conte Distinguished organizations also have supported it. In 1975, the American Law Institute called for “sound recordings” of Miranda warnings and interrogations; MODEL CODE OF PRE- "See, Borchand, CONVICTING THE INNOCENT, p.371 (advocating that “all questioning of the accused shall be cartied on orly before a magistrate and witnesses, perhaps in the presence of phonographie records, which shall alone be introdueible as evidence of the prisoner's statements”); Pound, Legal Interrogation of Persons Accused or Suspected of Crime, 24 J. Cri. L, & Criminology 1014, 1017 (1934) (advocating that suspects be brought before a ‘magistrate for “examination,” and that “provisions should be made for taking down the evidence s0 as to guarantee accuracy}; O” Hara, FUNDAMENTALS OF CRIMINAL PROCEDURE (1956), p.127-32 (“The ideal solution isthe sound motion picture, that combination of sound and sight which most neatly represents (othe sense the event itselé"); Scheck, etal, Aciual Innocence, p.256 (‘One simple rule: Videotape, or at least audiotape, all interrogations so there is an objective record"); Donovan & Rhodes, Comes a Time: The Case for Recording Interrogations, 61 Mont, L. Rev. 223, 245 (2000); Drizin & Reich, Heeding the Lessons of History: The Need for Mandatory Recording, 52 Drake L-Rev. 619 (2008) (reviewing 70-year history of recording efforts); Drizin & Colgan, Let the Cameras Roll: Mandatory Videotaping of Interrogations Is the Solution to Ilinois' Problem of | False Confessions, 32 Loyola Univ. Chicago L. J.337 (2001); Linkins, Satisfy the Demands of Justice: Embrace Electronic Recording of Custodial investigative Interviews Through Legislation, Ageney Poliey, or Court Mandate, 44 Am, Crim, L. Rov. 141, 173 (2007); Johnson, False Confessions and Fudamental Fairness: The Need For Electronic Recording Of Custodial Interrogations, 6 Boston Univ. Pub. Interest I. J.719, 721 (1997) \errogations should be recorded in order to prevent wrongful convictions based upon false confessions"); Westling & Waye, Videotaping Police Interrogations: Lessons from Australia, 25 Amer. Crim. L. Rev. 493, 497 (1998) “(Recording is either commonplace of mandatory in countries as far flung as England, Australia, and Canada."); Westling, Something Is Rotten In The Interrogation Room: Let's Try Video Oversight, 34 John Marshall L. Rev. 537 (2001), 36| j ! | | | | | ARRAIGNMENT PROCEDURE § 130.43) (ALI 1975); and a similar provision is found in the Uniform Rules of Criminal Procedure, R. 243(b). In 2004, the American Bar Association adopted a resolution recommending taping,” and editorial writers in Connecticut also have called for it. See Hartford Courant, “Videotape Homicide Confessions” (Aug. 4, 2003) & Jd.” “Limit Wrongful Convictions” (March 18, 2008). As Professor Kamisar has noted, “[i]t is not because a police officer is more dishonest than the rest of us that we should demand an objective recordation of the critical events. Rather, it is because we are entitled to assume that he is no less human-no lesé inclined to reconstruct and interpret past events in a light most favorable to himself-that we should not permit him to be ‘a judge of his own cause.’" Kamisar, Foreword, 242-43. Until all interrogations are recorded, our trial and appellate courts will continue to decide suppression issues in most”? cases based on “secret proceedings absent any objective recordation of the facts.” Jd., 233. This “Court-and all our courts-deserve better and should demand more.” /d. In urging adoption of a constitutionally-based recording requirement, the defendant has not overlooked the fact that during the past decade, our legislature has considered a number of bills that would have required electronic recording. The legislature’s reticence to impose a *®rhe resolution states in part thatthe ABA “urges all law enforcement agencies to video-tape the enttety of ‘estodial interrogations of crime suspects at police precinets, courthouses, detention centers, or other places where suspects are held for questioning, or, where video-taping is impractical, to audiotape the entirety of such custodial interrogations.” It also “urges legislatures and/or courts to enact laws or rules of procedure requiring videotaping” or audio-iaping of custodial interogations at such locations. American Bar Association Report to the House Delegates (Feb. 2004), www.abanet.ore/leadership/2004/recommendations/¥a.pdf *A 2003 report by the General Assembly's Office of Legislative Research found that wo police departments (Redding and Ridgotield) routinely videotaped custodial interrogations, while twenty other departments videotaped some custodial interrogations. O.L.R, Report 2003-R-0190 (Feb. 14, 2003). This means that a small number of Connecticut defendants (whose interrogations are taped), are afforded better judicial review (by trial snd appellate courts) of voluntariness and Miranda claims, than is available for the majority of defendants whose interrogations are not recorded. The result: an unequal protection of the laws. Eg, Bill 5490 (1996), Raised Bill 6631 (1999), Committee Bill 149 (Jan. Sess. 2007); Raised Bill No. 608 (Feb. ‘Sess, 2008). In addition, a study of the death penalty in this state made the following recommendation: “Questioning in a police facility of people suspected of murder should be recorded. Videotaping is recommended. If that is not 37| recording requirement, makes it all the more imperative for this court to attain the objective through judicial means. “Where legislatures fail to act, state supreme courts should take action ..” Sullivan, Everybody Wins, 1133. Judicial action is appropriate because “safeguarding the rights of criminal defendants is a historical and constitutional function of the judicial branch.” State v. Chauvin, 773 N.W.2d 20, 26 (Minn. 2006). Miranda and its exclusionary rule were, moreover, judicial, not legislative, creations; the judiciary is therefore the mast logical branch of government to enforce and protect Miranda's principles. (On many occasions, the Connecticut Supreme Court has extended greater protection to Connecticut citizens, under the state constitution, than is mandated by the federal constitution. See, e.g., State v. Stoddard, supra; State v. Marsala, 216 Conn, 150 (1990); State v. Oquendo, 223 Conn, 635 (1992). ‘The court should interpret our constivution so that it continues to inave “contemporary effectiveness for all of our citizens.” State v. Dukes, 209 Conn. 98, 115, 547 A.2d 10 (1988); Oquendo, at 649. The court should hold that the state’s failure to record the defendant's advisement of rights, interrogation, and statements violated his state constitutional rights to due process of law, his privilege against self-incrimination, his right to present a defense, and his right of conftontation. ‘The court should further hold that the only effective remedy is suppression of the defendant’s statements. See Stephan v. State, supra, 1163-64 (an “exclusionary rule is the only remedy that provides erystal clarity to law enforcement agencies, preserves judicial integrity, and adequately protects @ suspect's constitutional rights.”) The Federal Constitutional Claim Although there is no precedent to support the defendant’s federal constitutional claim, the defendant maintains that a recording requirement is mandated by the federal constitutional practical, audiotaping should be used.” State of Connecticut Commission on the Death Ponalty, Study Pursuant to Public Act No. 01-151 of the Impasition of the Death Penalty in Connecticut (Jan. 8, 2003). “In 2004-05 alone, {twenty-five states] proposed legislation seeking to mandate the recording of custodial interrogations.” Oliver, Mandatory Recording of Custodial Interrogations, at 275. 38,| provisions discussed in § D.1., supra. ‘The various arguments set forth in connection with the state constitutional claim, are hereby incorporated into the federal claim, I. The unrecorded statements must be suppressed in any penalty phase hearing because a capital defendant's constitutional right to due process merits higher procedural safeguards.” Itis particularly important to ensure the voluntariness of a confession in a capital case, and therefore the unrecorded statements at issue should be suppressed in the penalty phase to safeguard the defendant’s constitutional rights. Generally, the admission of a coerced confession can never be harmless error because it involves constitutional rights that are basic to a fair trial; Connecticut v. Johnson, 460 U.S. 73, 81, 103 S. Ct. 969, 74 L. Ed. 2d 823 (1983); however, in capital cases, the Supreme Court has “required additional protections because of the nature of the penaity at stake.” Herrera v. Coilins, 506 U.S. 390, 399, 113 8, Ct, 853, 122 L. Bd. 2d 203 (1993); see also Turner v. Murray, 476 U.S. 28, 35, 106 S. Ct. 1683, 90 L. Ed, 2d 27 (1986) (“The Court, as well as the separate opinions of a majority of the individual Justices, has recognized that the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination.”), When a capital defendant’s confession is improperly admitted in the penalty phase, a death sentence imposed as a result must be vacated. Johnson v. Mississippi, 486 U.S. 578, 590, 108 S. Ct, 1981, 100 L. Bd. 2d 575 (1988) (holding that a death sentence imposed in part on the basis of inadmissible evidence must be vacated). The Supreme Court has explicitly stated that it is a violation of due process to use a coerced confession to “send any accused to his death.” Payne v. Arkansas, 356 U.S. 560, 568, 78 S. Ct. 844; 2 L. Ed, 2d 975 (1958) (citing Chambers v. Florida, 309 U.S. 227, 241, 60 S. Ct. 472, 84 L. Ed. 71 (1940)). In one death penalty confession case, the majority wrote: “[w]hen the penalty is death, we :. . are tempted to strain the evidence "The defendant incorporates arguments made in Section J of the memorandum and supplements these arguments based upon this being a capital case. 39and even, in close cases, the law to give a doubtfully condemned man another chance." Stein v. New York, 346 U.S. 156, 196, 73 8. Ct, 1077; 97 L. Bd, 1522 (1953) ‘Taping of confessions in death penalty cases has been recognized as particularly necessary, in part because of the increased potential for false confessions in capital cases. See, e.g., Jim Dwyer, Cornered Minds, False Confessions, N.Y. Times, Dec. 9, 2001, at 14 (stating that as of 2001, false confessions played a part in producing twenty-two of the ninety-eight cases in which wrongfal convictions were since established). Connecticut’s own Commission on the Death Penalty has endorsed a recording requirement. Comm'n on the Death Penalty, State of ‘Conn., Study Pursuant to Public Act No. 01-151 of the Imposition of the Death Penalty in Connecticut 61 (Jan. 8, 2003). One bill introduced in the Illinois House of Representatives mandated videotaping specifically for death penaity cases. H.B. 722, 9st Gen. Assem., Reg. Sess, (Ill. 1999). Because capital cases can put police officers under tremendous pressure to solve the crime, creating an incentive to put pressure on the suspect, the Governor’s Capital Case Commission in Minois recommended that police be required to videotape interrogations in all homicide cases. See Governor's Comm'n on Capital Punishment, Report of the Governor's Commission on Capital Punishment 24-28 (Apr. 15, 2002).* Recognizing the importance of police transparency in the capital context more broadly, six states now require open file discovery in capital cases.“* ® Available at htp//www.cga-ct,gov/olr/Death®%20Penalty%20Commission%20Final%20Report pdf. Also see footnote 40, © While this bill did not pass, Illinois has since enacted recording statutes. 705 Ill, Comp. Stat. § 405/5-401.5; 725 Til, Comp. Stat. § 5/103-2.1 (eff. 2003). mp. “Available at httpd /www state il us/dlefender/reporvcomplete report pdf. “ These states are Maryland, Florida, Colorado, Oregon, New Hampshire, and Alabama, Richard A. Rosen, Reflections on Innocence, 2006 Wis. L. Rev. 237, 290. 40Just as death penaity cases require a greater degree of scrutiny, Turner v. Murray, supra, 476 US. at 35, the Supreme Court has also emphasized the need to exercise special caution ‘when assessing the voluntariness of a juvenile confession. Jerrell C.J., supra, 699 N.W.2d at 116 (citing In re Gault, 387 US. 1, 45,87 S.Ct. 1428, 18 L. Ed. 2d 527 (1967)). Noting the need for caution in this area and reasoning that a reliable record would help courts resolve voluntariness and Miranda issues and protect juvenile rights, the Wisconsin Supreme Court ruled all unrecorded juvenile confessions inadmissible. Id. at 121-23. Similarly, suppressing the unrecorded statements in the penalty phase of this case would be an appropriate measure to protect the defendant's due process rights, given the qualitative difference of his possible punishment, The state cites Sate v. James as iegal authority against a recording requirement, (State’s Memorandum at 7.) While our Supreme Court chose not to impose a recording requirement on the basis of the due process clause under the state constitution, the instant case can be distinguished. State v. James, 237 Conn. 390, 434, 678 A.2d 1338 (1996). First, the James court relied on the Geisler analysis to consider, inter alia, sister state decisions and public policy concems. Id. at 413-14 (1996). Fourteen years later, the same Geisler analysis necessitates the opposite conclusion. Second, as argued infra, because James was not a capital case, the additional protection a recording requirement would have imposed limited to the death penalty phase hearing was not at issue UL. The defendant's due process right under the state constitution must be protected with a recording requirement or another additional procedural safeguard. This state has demonstrated a commitment to Miranda's essential aim — to ensure that a suspect is properly and fully advised of the panoply of rights afforded to him and to guarantee that any waiver of those rights is knowing, intelligent and voluntary. State v. Ferrell, 191 Conn, 4137, 42, 463 A.2d 573 (1983). In State v. Stoddard at 164, our Supreme Court relied on the independent meaning of article first, § 8, of the state constitution to protect an accused person's access to counsel. Though the U.S. Supreme Court had “recently refused to impose a similar duty upon the police under the federal constitution,” the Stoddard court held that police “have a duty to act reasonably, diligently and promptly to provide counsel with accurate information {about the suspect] and to apprise the suspect of the efforts by counsel.” Id, at 164-67. In doing so, the court invoked state due process to provide broader procedural protections for suspects than required by the federal constitution. Id. As the Supreme Court of Alaska recognized, “{tJhe concept of due process is not static; among other things, it must change to keep pace with new technological developments." Stephan v. State, 711 P.2d 1156, 1161 (Alia. 1985), Recording a custodial interrogation would be a reasonable safeguard to ensure a valid Miranda waiver, especially in a death penalty case. The tisk of constitutional violation exists “when a constitutional right has been impermissibly burdened or impaired by virtue of state action that unnecessarily chills or penalizes the free exercise of the right.” State v. Jenkins, 271 Conn. 165, 190, 856 A.2d 383 (2004), In this case, the detectives’ refusal to record the defendant's interview, even though they had the room and the equipment to do so, unnecessarily curtailed the defendant's exercise of his privilege against self-incrimination, right to consult with counsel, and right to present a defense. The rights of the accused are more likely to be infringed in the absence of an accurate record. Stephan v. State, 711 P.2dat 1161. A recording requirement for admissibility, or the inclusion of the words “you have a right to have any statement you make to be electronically recorded” as components of the Miranda notice of rights and waiver forms process, is in keeping with state due process and Comneeticut’s commitment to Miranda’s protection and purposes. 42As an alternative procedural safeguard for the proffered use of unrecorded interrogations, the prosecution should be required to establish a knowing, voluntary, and intelligent waiver of Miranda rights by a proof beyond a reasonable doubt standard. Currently, the prosecution must meet only a burden of preponderance of the evidence, not reasonable doubt, when showing a knowing and voluntary waiver of Miranda rights. See State v. Lawrence, 282 Conn. 141. While imposing a recording requirement would be the best way to ensure that the defendant's statements were preserved in a manner for alto assess independently, when law enforcement fails to electronically record, requiring that the state meet a burden of proof beyond a reasonable doubt“* would make the determination of a knowing, voluntary and intelligent Miranda waiver more reliable in keeping with “our due process tradition.” Stoddard, supra, 206 Conn. at 167. It is asserted that such burden was not achieved by the state under the facts and circumstances of this case, (See argument under Miranda waiver issues.) MIRANDA WAIVER ISSUE The statements were made without a voluntary, knowing and intelligent waiver of the defendant’s rights to remain silent and to counsel, as demonstrated by the defendant’s eventual refusal to record his statement, To use a defendant's statements against him, as a result of custodial interrogation, "a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-inerimination and his right to retained or appointed counsel." Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 16 L, Ed. 2d 694 (1966). The United States Supreme Court has reaffirmed this heavy burden to find a Miranda waiver, requiring, first, that such waiver was “voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception” and, second, made “with a full awareness both of the nature of the right being abandoned and the consequences of the decision “Short of requiring proof beyond a reasonable doubt the court should require the burden of clear and convincing evidence, 43to abandon it.” Moran v, Burbine, 475 U.S. 412, 421, 106 8. Ct. 1135, 1141, 89 L. Ed. 24410 (1986). The state has agreed that the defendant in this case was clearly subject to a custodial interrogation before he made the statements at issue, (State’s Memorandum at 3.) ‘The state must demonstrate: "(1) that the defendant understood his rights, and (2) that the defendant's course of conduct indicated that he did, in fact, waive those rights.” State v. Shifflett, 199 Conn, 718, 732, 508 A.2d 748 (1986) (citing State v. Wilson, 183 Conn, 280, 285, 439 A.2d 330 (1981)) (Emphasis in original). Waiver validity cannot be presumed simply because a confession was in fact eventually obtained. State v. Wilson, supra, 183 Conn. at 284. While the defendant's signature on a waiver form is relevant, it is not a controlling factor in determining the validity of a waiver. State v. Gray, 200 Conn. 523, 534, 512 A.2d 217 (1986). In this case, Hayes did not knowingly, voluntarily and intelligently waive his rights to ‘counsel and to remain silent. We agree with the state that “it may be significant that the defendant, when asked, refused to give an electronically recorded statement.” (State's Memorandum at 8.) The defendant's repeated invocation of his rights in response to two requests to formalize his statements indicates the defendant's lack of understanding of the significance of his actions. First, after completion of the one hour and ten minute unrecorded interrogation, Det. Buglione informed Mr. Hayes that he would now prepare a written statement. Upon hearing this, Mr. Hayes invoked his right to counsel, Later on after Mr. Hayes again signed a Miranda form purportedly indicating an informed voluntary decision to waive the right to counsel, he was told by Det. Buglione that the statement would be tape recorded. Before answering another question, Mr. Hayes once again invoked his right to counsel. A reasonable inference can be drawn that this demonstrates that Mr. Hayes had no understanding that oral statements could be used against him in a court of law. It demonstrates that had sueh information been given to him immediately, the invocation of his right to counsel would have 44CERTIFICATION Thereby certify that a copy of the foregoing motion was served to all counsel of record ia hand delivery, first class mail, electronic mail, and/or facsimile transmission on this 3" day of August, 2010. Michael Dearington Gary Nicholson State’s Attomey Assistant State's Attorney New Haven Superior Court ‘New Haven Superior Court 235 Church Street 241 Chuirch Street New Haven, CT 06510 ‘New Haven, CT 06510 ee ‘Thorfias Ullmann 2 Public Defender 47