Arkansas

Criminal Procedure

Criminal Procedure

Rule 4.7 – Recording Custodial Interrogations

(a) Whenever practical, a custodial interrogation at a jail, police station, or other similar place, should be electronically recorded.
(b)

(1) In determining the admissibility of any custodial statement, the court may consider, together with all other relevant evidence and consistent with existing law, whether an electronic recording was made; if not, why not; and whether any recording is substantially accurate and not intentionally altered.
(2) The lack of a recording shall not be considered in determining the admissibility of a custodial statement in the following circumstances:

(A) a statement made by the accused in open court at his or her trial, before a grand jury, or at a preliminary hearing,
(B) a statement made during a custodial interrogation that was not recorded because electronic recording was not practical,
(C) a voluntary statement, whether or not the result of a custodial interrogation, that has a bearing on the credibility of the accused as a witness,
(D) a spontaneous statement that is not made in response to a question,
(E) a statement made after questioning that is routinely asked during the processing of the arrest of the suspect,
(F) a statement made during a custodial interrogation by a suspect who requests, prior to making the statement, to respond to the interrogator’s questions only if an electronic recording is not made of the statement, provided that an electronic recording is made of the statement of agreeing to respond to the interrogator’s question, only if a recording is not made of the statement, or
(G) a statement made during a custodial interrogation that is conducted out-of-state.
(3) Nothing in this rule precludes the admission of a statement that is used only for impeachment and not as substantive evidence.
(c) An electronic recording must be preserved until the later of:

(1) the date on which the defendant’s conviction for any offense relating to the statement is final and all direct and post-conviction proceedings are exhausted, or
(2) the date on which the prosecution for all offenses relating to the statement is barred by law.
(d) In this rule, “electronic recording” includes motion picture, audiotape, or videotape, or digital recording.

Ark. R. Crim. P. 4.7

Reporter’s Notes, 2012: This rule was added in 2012 in response to the decision in Clark v. State, 374 Ark. 292, 287 S.W.3d 567 (2008). The rule does not mandate the recording of all custodial statements. Instead, it allows the trial court to consider the failure to record a statement in determining the admissibility of the statement.