Recent Developments in Criminal Investigation and Discovery: Access, Disclosure and Use of Information in the Criminal Defense Realm
by Ann Marie Taliaferro
The past year has brought with it both increased questions and additional obstacles for criminal defense practitioners concerning the investigation, discovery, and ultimate presentation of the facts of their cases at a criminal trial. Changes have emerged in how criminal defense practitioners may investigate their cases. Questions have been raised regarding exactly what information discovered by a criminal defense attorney must be disclosed to prosecutors. Finally, how and when a criminal attorney makes use of that discovered information has also been the subject of recent appellate discussion. While there have been several notable and far-reaching decisions issued by Utah courts this past year, this summary of developments is narrowed to those recent court decisions which have commented upon and affected the investigational techniques and overall practice of the criminal bar.
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Crimes, Truth and Videotape: Mandatory Recording of Interrogations at the Police Station
by Walter F. Bugden, Jr. & Tara L. Isaacson
It is time for the Utah Supreme Court to exercise its supervisory power to require videotaping of custodial interrogations of juvenile and adult crime suspects. This requirement should be imposed when the questioning occurs at a place of detention where videotaping equipment is available. If video recording is unavailable, an audio recording should be required. The videotaping requirement should only be excused when impracticable, and the failure to do so, excusable. Requiring electronic recording when the questioning occurs at a place of detention will provide courts the means to develop a complete, accurate, and objective record on the voluntariness of a confession. With the simple flip of a switch, the courts can be provided with a record of everything that transpires during a custodial interrogation. Recording is a reasonable safeguard which will ensure the protection of an accused's right to counsel, right against self-incrimination, and his or her right to a fair trial. Recording will also protect law enforcement from false claims of coercion and improper conduct.
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