This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 166
The People &c.,
            Respondent,
        v.
Everett M. Durant,
            Appellant.




          Janet C. Somes, for appellant.
          Geoffrey Kaeuper, for respondent.
          The Innocence Project and District Attorneys
Association of the State of New York, amici curiae.




ABDUS-SALAAM, J.:
          The increasing availability of electronic recording
technology raises many complex questions of law and policy in the
realm of criminal justice, most of which we cannot and do not
resolve in this case.   Instead, we are confronted here with a
single narrow question: does the common law invariably require a

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court to issue an adverse inference instruction against the
People at trial based solely on the police's failure to
electronically record the custodial interrogation of a defendant?
We answer this question in the negative.   Leaving aside whether a
trial court has the power to deliver such an instruction based on
the unique facts of a particular case, the court does not
necessarily abuse its discretion or otherwise commit legal error
by declining to issue the charge in every case in which the
police fail to record a custodial interrogation.   Thus, although
the better practice would be for the police to use the equipment
at their disposal to record interrogations, their failure to take
such action does not, as a matter of law, automatically compel a
trial court to deliver an adverse inference charge to a
deliberating jury.
                                I.
           Defendant Everett M. Durant was arrested and tried on a
single count of robbery in the second degree (see Penal Law §
160.10 [1]) based on his alleged robbery of Emmett Hunter.     The
People's evidence at trial showed that, on the night of November
28, 2008, Hunter walked past defendant and a group of other young
men near a street corner on the east side of Rochester.
Defendant placed Hunter in a choke hold, possibly rendering him
briefly unconscious.   Hunter then saw defendant holding his
wallet.   As the group started walking away, Hunter called the
police on his cell phone to report the robbery.    Upon observing


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Hunter making the call, defendant approached Hunter again and
took his phone.   Defendant and the other young men then started
punching and kicking Hunter.   After a struggle, Hunter broke away
from the group and ran to a nearby fire station, where he pressed
an emergency alarm button, causing his assailants to scatter.
Soon thereafter, the police arrived, and they chased down and
apprehended defendant.
          The police transported defendant to the east side
police station because, as Police Investigator Trevor Powell
later explained at trial, it was "common practice when a crime
occurr[ed] on the east side to go to the east side office,"
whereas, "[i]f it [wa]s a homicide [one would] take the [suspect]
back to the Public Safety Building."    In that sense, Powell
observed, "this crime required" the officers to transport
defendant to the east side station.    Significantly, Powell
explained that the officers at the east side station "didn't have
any access" to recording equipment; although the Public Safety
Building, which was roughly a 10-minute drive from the east side
station, had video recording equipment, no recording equipment of
any kind was kept at the east side station.1
          At the east side station, defendant was placed in an
interview room and handcuffed to a table.    Powell entered the
room and issued Miranda warnings to defendant (see Miranda v


     1
         The west side station had a tape recorder but no video
recording devices.

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                                 - 4 -                       No. 166

Arizona, 384 US 436 [1966]), and defendant agreed to speak to
Powell and answer his questions.    When Powell inquired about the
reason for defendant's arrest, defendant initially stated that he
and his sister had happened upon the scene of a fight in progress
earlier that night, and that he had punched Hunter in order to
break up the fight.   At Powell's request, defendant provided
Powell with his sister's phone number, but when Powell called the
number, no one answered.
          Next, Powell "told [defendant] that it [wa]s time to
tell the truth and to man up."    In response, defendant changed
his narrative of the crime, saying that he had seen Hunter "being
crowded by this guy Little C and his brothers" and had joined
those individuals in assaulting Hunter.    Defendant denied taking
anything from Hunter.   After defendant made this oral statement,
Powell wrote out a version of that statement for defendant to
sign, making a few changes to the written version at defendant's
request before he signed it.
          Due to the lack of a recording of the interrogation,
the People's trial proof of the events that unfolded in the
interview room consisted solely of Powell's testimony and written
summary of defendant's statement.    In response to the People's
proof, defendant called his sister to the stand, and she
testified consistently with his final statement to Powell,
alleging that he had merely assaulted, but not robbed, Hunter.
          Prior to summations, defense counsel requested that the


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court issue a permissive adverse inference charge against the
People based on the police's failure to record defendant's
interrogation.   Counsel gave the court a written copy of his
suggested instructions.   In sum and substance, counsel proposed
that the court tell the jurors that: they could consider the
police's failure to record the interrogation in determining the
voluntariness of defendant's alleged statement to the police and
the weight to be given to it; in the absence of a recording, they
did not have reliable and complete evidence of the contents of
defendant's alleged statement to the police or whether he had
made the statement at all; they should weigh the evidence of the
alleged statement with great caution; if the People did not prove
beyond a reasonable doubt the existence and voluntariness of the
statement, the jurors should disregard it entirely; and "[t]he
absence of an electronic recording permits, but does not compel,
[the jurors] to conclude that the prosecution has failed to prove
that a statement was either actually or voluntarily made, or, if
made, that it [was] accurately reported by the State's
witnesses."   Defense counsel did not request a standard jury
instruction regarding the voluntariness of defendant's statement
in general, nor did he specifically ask the court to submit the
issue of voluntariness to the jury (see CJI2d [NY] Statements
[Admissions, Confessions]).   The court denied defense counsel's
request for an adverse inference charge and related instructions
on the jury's consideration of the police's failure to record


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defendant's interrogation.
           During summations, the court permitted defense counsel
to argue that the jurors could not know what actually happened in
the interrogation room because the police had failed to record
the interrogation.   After summations, the jurors deliberated and
returned a verdict convicting defendant of second-degree robbery.
At a subsequent sentencing proceeding, the court sentenced
defendant, as a second felony offender, to a determinate five-
year prison term, to be followed by five years of postrelease
supervision.   Defendant appealed.
           The Appellate Division unanimously affirmed the
judgment of conviction and sentence, rejecting defendant's
contention that the trial court had been legally required to
issue an adverse inference instruction based on the police's
failure to generate an electronic recording of his interrogation
(see People v Durant, 112 AD3d 1366, 1367 [4th Dept 2013]).     A
Judge of this Court granted defendant leave to appeal (23 NY3d
962 [2014]), and we now affirm.
                                  II.
                                   A
           As noted previously, the issue before us is a narrow
one.   On this appeal, defendant does not contend that the
police's decision not to record his interrogation warranted the
suppression of his statement on constitutional or other grounds,
and therefore we do not opine on questions of suppression and


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admissibility which are not before us.   Nor are we called upon to
define the boundaries of the trial court's power and discretion,
if any, to provide the jury with an adverse inference instruction
or other guidance on its consideration of the significance of the
police's failure to record an interrogation on a case-by-case
basis.   Rather, this appeal presents only the issue of whether,
in every case where the police could have, and failed to, make an
electronic recording of an interrogation, the trial court must,
as a matter of law, invariably issue a permissive adverse
inference charge.
           To resolve that issue, we must examine the
circumstances that have previously been held to warrant an
adverse inference instruction in criminal cases.   In that regard,
the common law permits, and sometimes compels, a trial court to
instruct the jurors that they may draw an inference unfavorable
to the People based upon the government's failure to present,
preserve or disclose certain evidence, and the court's decision
to issue such a charge is reviewable in this Court for abuse of
discretion as a matter of law (see People v Martinez, 22 NY3d
551, 567 [2014]; People v Savinon, 100 NY2d 192, 197 [2003]).     A
permissive adverse inference instruction typically serves as
either: (1) a penalty for the government's violation of its
statutory and constitutional duties or its destruction of
material evidence; or (2) an explanation of logical inferences
that may be drawn regarding the government's motives for failing


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to present certain evidence at trial (see generally People v
Handy, 20 NY3d 663, 667-669 [2013]; People v Martinez, 71 NY2d
937, 940 [1988]).   For example, the trial court typically must
issue an adverse inference charge as a penalty where the State,
through its agents, has destroyed existing material evidence in
its possession, such as an existing video recording that has been
requested by the defense (see Handy, 20 NY3d at 667-669 [2013]).
And, where the State violates its disclosure obligations, an
adverse inference charge, and sometimes more severe penalties,
are authorized (see Martinez, 22 NY3d at 560-565; People v Haupt,
71 NY2d 929, 931 [1988]).
          In addition, as a matter of logic rather than
punishment for the violation of a legal duty, the trial court
must usually issue a permissive adverse inference instruction
where the People fail to present the testimony of a witness and
the following three conditions are met:
          "First, the witness's knowledge must be
          material to the trial. Second, the witness
          must be expected to give noncumulative
          testimony favorable to the party against whom
          the charge is sought. . . . Third, the
          witness must be available to that party."
          (Savinon, 100 NY2d at 197; see also People v
          Hall, 18 NY3d 122, 131-132 [2011]).
"This instruction, commonly referred to as a 'missing witness
charge', derives from the commonsense notion that the
nonproduction of evidence that would naturally have been produced
by an honest and therefore fearless claimant permits the
inference that its tenor is unfavorable to the party's cause"

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(People v Gonzalez, 68 NY2d 424, 427 [1986] [internal quotation
marks and citation omitted, emphasis in original]).
          In describing the missing witness rule, the U.S.
Supreme Court has analogized it in some respects to the best
evidence rule.   Specifically, the Court has explained that, under
both rules, a party's decision to present secondary or less
reliable evidence at trial, despite the party's "possession or
power" over "greater" proof, logically suggests that "if the more
perfect exposition had been given it would have laid open
deficiencies and objections which the more obscure and uncertain
testimony was intended to conceal." (Clifton v United States, 45
US 242, 247-248 [1846] [emphases added, internal citations
omitted]).   Accordingly, a missing witness charge describes the
logical inference that a party who possesses and yet withholds
superior evidence probably intends to conceal the fact that the
superior evidence is unfavorable to it.
          Here, as noted, because no existing case law or statute
requires a trial court to instruct jurors that they may draw an
adverse inference from the police's decision not to record an
interrogation, defendant was not entitled to his proposed adverse
inference instruction on force of any established legal mandate,
and thus the court had to grant his charging request only if the
failure to record his interrogation gave rise to circumstances
similar to those that have previously been held to necessitate an
adverse inference charge.   As will be explained, however, none of


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the traditional rationales for an adverse inference instruction
compelled the trial court in this case to deliver such a charge
based solely on the police's failure to electronically record the
interrogation of defendant.
                               B
          To begin, no adverse inference instruction could lie in
this case based on the government's alleged dereliction of a
legal duty, for generally there exists no legal duty which may be
breached by the failure to make an electronic recording of an
interrogation.   No statute requires the police to generate a
video or audio recording of their interrogation of a suspect, and
leaving aside any suppression matters, our case law has not
recognized a constitutional duty to record interrogations.     Thus,
while our precedent does permit -- and sometimes requires -- a
court to issue an adverse inference instruction as a penalty for
the government's failure to satisfy applicable legal duties, the
rationale of that precedent does not support the issuance of an
adverse inference instruction based on the police's failure to
satisfy a non-existent duty to record an interrogation (see
People v Moore, 112 AD3d 981, 982 [3d Dept 2013]; see also United
States v Meadows, 571 F3d 131, 146-147 [1st Cir 2007]).
          Additionally, this case does not present a situation,
like the one in People v Handy (20 NY3d at 663), where the trial
court had to, and failed to, give the jury an adverse inference
charge in response to the police's decision to destroy existing


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                               - 11 -                         No. 166

material evidence.   In Handy, a police surveillance system
created a series of images depicting a portion of the defendant's
alleged jailhouse assault on some sheriff's deputies, and those
images remained in the possession of the police (see id. at 666).
After the defendant had been charged with the crime in a felony
complaint, the defendant filed an omnibus motion, in which he
demanded all evidence generated by electronic surveillance of the
incident (see id. at 666).    Despite the defendant's demand for
such evidence, the police destroyed the surveillance images
sometime between the defendant's arraignment on the complaint and
the filing of the indictment (see id. at 666).    At trial, the
defendant requested an adverse inference instruction, and the
court denied his request.    Thereafter, the jury convicted the
defendant of the assault (see id. at 667).    On appeal, we
concluded that the trial court had committed reversible error by
denying the defendant's request for an adverse inference
instruction, and we held that "when a defendant in a criminal
case, acting with due diligence, demands evidence that is
reasonably likely to be of material importance, and that evidence
has been destroyed by the State, the defendant is entitled to an
adverse inference charge" (id. at 666).    We pointed out that the
trial court should have issued an adverse inference instruction
because such an instruction "gives the State an incentive to
avoid the destruction of evidence" and contains fair permissive
language based on the failure to present existing evidence, just


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                              - 12 -                          No. 166

as a missing witness instruction does (id. at 669-670).
          Thus, in Handy, the need for an adverse inference
charge arose only after the police had finished their
investigation, the People had charged the defendant with a crime
and the police had already acquired evidence which was likely to
be material to the defendant's upcoming trial.   In that context,
the police's wrongful destruction of the evidence and the
People's failure to preserve it, while not illegal per se,
necessitated an adverse inference charge to, among other things,
deter the authorities from affirmatively destroying evidence that
they knew, at the time of the destruction, was reasonably likely
to be material.   However, where the police do not create an
electronic recording of an interrogation in the first instance,
much less destroy it, they do not know the contents of the
potential recording or whether those contents will be material at
trial, and there is no deliberate destruction of potentially
material evidence that would warrant the deterrent of an adverse
inference instruction.   Therefore, here, the court was not
required to deliver an adverse inference charge to penalize the
People for the police's decision not to electronically record
their interrogation of defendant.
                                 C
          Furthermore, the court did not, as a matter of law,
have to provide the jury with an adverse inference instruction to
explain the inferences which might logically flow from the


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evidence.   Contrary to defendant's assertion, the rationale
behind a missing witness instruction does not require a court to
issue an adverse inference charge in this context because a
missing witness instruction is supported by a natural inference
about a party's motives in declining to call a particular
witness, which is an inference that does not typically apply in
cases where the police decline to record an interrogation.
            As previously discussed, in cases where a missing
witness charge is required, it has already been established at
the time of trial that the witness in question: (1) has knowledge
material to the trial; (2) would be expected to give non-
cumulative testimony favorable to the People; and (3) is
available to the People (see Hall, 18 NY3d at 131-132).    Given
those conditions, it is clear that, if the People have chosen not
to call the witness, they have made that choice with full
awareness of what the witness knew and would be expected to say,
and hence one may fairly conclude that, at the time the People
decided to withhold the witness's testimony, they had learned
that the testimony would not be as favorable as expected and
suppressed it for that reason.    Indeed, the People would seldom
have any other reason not to call such an important and readily
available witness.    Under those particular circumstances, then,
the court usually must issue an adverse inference instruction
based on "the commonsense notion that the non-production of
evidence that would naturally have been produced by an honest and


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                              - 14 -                         No. 166

therefore fearless claimant permits the inference that its tenor
is unfavorable to the party's cause" (Gonzalez, 68 NY2d at 427).
           By contrast, the police's failure to record an
interrogation does not necessarily suggest that they declined to
make the recording because they wished to avoid supplying
unfavorable proof at an eventual trial of the suspect.   When the
police fail to electronically record an interrogation, they do
not yet know whether the defendant will speak to them at all, and
they have no expectation that he or she will make a statement
favorable to them or the People in a future prosecution, as the
defendant might freely confess, might stay silent, or might deny
the allegations of wrongdoing.   In other words, unlike the People
in the missing witness scenario, the police do not already know
that the recording is more likely to be unfavorable than it is to
be favorable.   Rather, at the time the police decide whether to
record the interrogation, the potential recording is just as
likely to be favorable (a conclusive record of a voluntary
confession) or neutral (a clear record of a refusal to speak to
the police) as it is to be unfavorable (a clear record of either
a denial of the charges or a confession blatantly coerced by the
police).
           Given this uncertainty, one cannot conclude that the
police must have acted out of a specific desire to prevent the
creation of an objective record of unfavorable facts, and the
police's choice is just as likely to stem from an innocent


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oversight or a legitimate adherence to a neutral departmental
policy.   Indeed, this case illustrates that very point; as
Investigator Powell testified without contradiction, the police
department policy which dictated the detention of defendant at a
location that lacked recording equipment was based on the
geographical location and severity of the offense, and not on any
apparent desire to suppress statements that the police believed
would be unfavorable in a future prosecution.   Thus, unlike the
People's choice not to call a missing witness, the police's
decision not to record an interrogation raises a number of
equally plausible inferences of the police's intent, and the
court need not issue a special instruction to the jurors
informing them that such a decision may indicate that the police
wanted to withhold potentially unfavorable evidence.
          It is for this reason that, contrary to defendant's
suggestion, the U.S. Supreme Court's discourse on the missing
witness rule in Interstate Circuit, Inc., v United States (306 US
208 [1939]) cannot afford him relief here.   In that antitrust
case, the Supreme Court decided that the fact finder could have
drawn an adverse inference against the corporate defendant due to
the corporation's decision to call low-level employees, rather
than executives, to the stand to testify about the contested
corporate policies that had been ordered by those executives (see
id. at 215-220, 225-226).   In describing the basis for the
adverse inference, the Court stated that "[t]he production of


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                               - 16 -                         No. 166

weak evidence when strong is available can lead only to the
conclusion that the strong would have been adverse" (id. at 226).
            In context, the Supreme Court's statement that a fact
finder may fault a party for the "production" (id.) at trial of
weak evidence in lieu of strong evidence did not constitute a
declaration that an adverse inference charge may stem from a
party's failure to "produce," i.e., create or generate (see
Black's Law Dictionary, Produce, [10th ed. 2014] ["produce" can
mean "to create"]), a stronger form of evidence which did not
exist before.    Instead, the Court was commenting on the situation
where: weak and strong evidence of a fact already exist; a party
possesses both forms of evidence; and yet the party "produces"
only the weak evidence, in the sense of presenting that weak
proof at trial (see Black's Law Dictionary, Produce, 10th ed.
2014 ["produce" can mean "[t]o provide (a document, witness,
etc.)"]).   In that scenario, the Court reasoned, a party's
decision to present the weaker of the two existing forms of
evidence indicates that the party knows that the stronger proof
is unfavorable to its case (see Interstate Circuit, Inc., 306 US
at 225-226).    Here, unlike in Interstate Circuit, Inc., the
police did not possess a pre-existing superior form of proof, nor
did they suppress such proof in a manner suggestive of their
intent to avoid the revelation of clearly unfavorable facts.
Instead, the police simply failed to create a superior form of
proof in the first place, and they did so at a time when they had


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                              - 17 -                         No. 166

no idea what that proof would show.
                                  D
          The foregoing discussion suffices to demonstrate that
no existing legal principle or logical extension thereof requires
a trial court to issue an adverse inference charge whenever the
police could have, but failed to, electronically record an
interrogation.   Furthermore, defendant relies only on his
proposed categorical mandate for an adverse inference charge,
without pointing to any unique factor in his case that might have
permitted or compelled the court to issue an adverse inference
instruction in the exercise of its discretion.   As a result, the
trial court did not abuse its discretion or otherwise err, as a
matter of law, by refusing to deliver an adverse inference charge
to the jury.
          We also note that, beyond the legal infirmity of
defendant's position, the rationale behind his argument has the
potential to create practical problems because, by logical
extension, his rule would apply to numerous cases in which the
police have the power to memorialize certain events in a more
reliable way and fail to do so.   In particular, defendant's
central premise is that the police's failure to create strong
objective evidence of a fact material to the defendant's guilt --
in this case an electronic recording of defendant's statement
about the crime -- shows that the police determined that an
objective record of the fact would be unfavorable to them.     That


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premise would logically apply to any case where the police fail
to memorialize the existence of some fact via some method other
than the memory of the witnesses.     Given the multitude of
scenarios in which defendant's proposed rule would arguably
apply, our acceptance of his position could entangle the courts
in protracted litigation over the boundaries, if any, of
defendant's rule, and the courts might frequently issue adverse
inference instructions that may not be supported by law or logic.
                                  E
          Finally, while we do not adopt defendant's proposal to
issue a judicial mandate for adverse inference instructions in
all cases involving the failure to record interrogations, we
recognize the broad consensus that electronic recording of
interrogations has tremendous value, and we note the commendable
efforts of the bar, the judiciary and the Legislature to address
the complexities of this relatively new frontier of the criminal
justice system.   Certainly, there is widespread agreement that
electronic recording of custodial interrogations promotes the
fair administration of justice.   Because an electronic recording
of a custodial interrogation yields a reliable, objective record
of the police's interview with a defendant, the recording ensures
that the jury at the defendant's trial may evaluate every aspect
of the defendant's demeanor, his or her statement and his or her
treatment at the hands of the police, thereby enabling the jury
to make a fully informed determination of the voluntariness and


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                              - 19 -                         No. 166

meaning of the defendant's statement.   Importantly, according to
experts and stakeholders in the field of criminal justice,
recordings can reveal circumstances that may have prompted
suspects to make false confessions, which are a leading cause of
wrongful convictions (see New York State Bar Association's Task
Force on Wrongful Convictions, Final Report at 6 [April 2009]
[available at
https://www.nysba.org/WorkArea/DownloadAsset.aspx?id=26663, last
visited 11/4/15]; see also Steven A. Drizin and Marissa J. Reich,
Heeding the Lessons of History: The Need for Mandatory Recording
of Police Interrogations to Accurately Assess the Reliability and
Voluntariness of Confessions, 52 Drake L Rev 619, 622-624
[2004]).
           Fortunately, in recognition of those widely-
acknowledged benefits of recording interrogations and the need
for a legal framework governing this area, stakeholders in the
criminal justice system and government have come together to
begin addressing this critical issue.   Many bar groups, district
attorneys, defense lawyers, judicial task force members and
legislators have already crafted worthy proposals to balance
various policy interests and create what, in their judgment, is a
fair, practical and enduring framework for electronic recording
of interrogations (see e.g. New York State Justice Task Force,
Recommendations Regarding Electronic Recording of Custodial
Interrogations at 3-4 [2012] [available at


                              - 19 -
                              - 20 -                         No. 166

http://www.nyjusticetaskforce.com/ElectronicRecordingOfCustodialI
nterrogations.pdf, last visited 11/4/15]; Steven Banks, The Legal
Aid Society, Testimony Before the Council of the City of New York
at 7-10 [Feb 12, 2013] [available at
http://www.legal-aid.org/media/171367/2013.02.12.pdf, last
visited 11/4/15]; District Attorneys Association of the State of
New York, New York State Guidelines for Recording Custodial
Interrogations of Suspects at 1-8 [2010] [available at
http://www.daasny.com/wp-content/uploads/2014/08/Video-Recording-
Interrogation-Procedures-Custodial-FINAL-12-8-10.pdf, last
visited 11/4/15).   The Legislature is currently considering the
enactment of laws based on the important work of those
stakeholders (see 2015 NY Senate Bill S2419; 2015 NY Assembly
Bill A7063).   By drawing policy-based lines that need not follow
the open-ended logic of defendant in this case, the Legislature
can craft legal principles governing recording and adverse
inference charges that realize all of the benefits, and none of
the drawbacks, of defendant's proposed judicial rule-making.
Consequently, in the absence of existing law compelling a trial
court to issue an adverse inference charge in every case in which
the police have failed to take available measures to record an
interrogation, we leave it to the Legislature to consider whether
or not to change the law on this particular issue.
                               III.
          Because defendant's proposed jury instruction was


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                              - 21 -                       No. 166

neither required as a penalty for governmental malfeasance nor
akin to a missing witness charge, the Appellate Division properly
determined that the trial court did not commit legal error or
abuse its discretion as a matter of law by declining to deliver
the charge to the jury.   Since we agree with the lower courts'
handling of defendant's sole contention on appeal to us, we need
go no further to dispose of this appeal.   Accordingly, the order
of the Appellate Division should be affirmed.




                              - 21 -
People v Durant
No. 166




LIPPMAN, Chief Judge (concurring):
           I agree with the majority that the trial court did not
abuse its discretion as a matter of law by denying defendant's
request for an adverse inference instruction based on the failure
of the police to electronically record his interrogation.    I
further agree that there is currently no requirement that such
instructions need be given in all cases where a recording was not
made.   However, I write separately to emphasize that things have
changed in many respects since defendant was questioned by the
police in 2008.   Technology has advanced and significant
resources have been expended to equip law enforcement with the
ability to video interrogations in the effort to increase
transparency and prevent wrongful convictions.   Indeed, the
overwhelming national trend is toward requiring video recording
of custodial interrogation of suspects, either as a matter of a
State's duty of fairness or to protect the rights of defendants.
Therefore, going forward, trial courts should give serious
consideration as to whether adverse inference charges are
indicated and, at least in cases involving serious felonies, it
may well be that the grant of a defendant's request and the


                               - 1 -
                               - 2 -                         No. 166

delivery of the charge is, as a matter of law, the only
appropriate course.
          The many benefits of recording custodial interrogations
are essentially uncontested.   The practice holds significant
advantages for the entire criminal justice system.   First and
foremost, recording interrogations reduces the instances of false
confessions and, by extension, wrongful convictions.   A video
recording of the entire proceeding can also obviate any claim
that a suspect's confession has been obtained through improper
police tactics.   The jury's ability to see exactly what
transpired during an interrogation will improve the accuracy of
the fact-finding process and facilitate appellate review.     The
increased transparency will also promote public confidence in the
administration of justice.   As the majority observes, there is no
dispute that the recording of interrogations is the better
practice (see majority op. at 2).
          In accordance with the national trend, courts in other
states have grappled with the absence of recorded statements and,
in the face of legislative inaction, have drawn upon their
supervisory authority to fashion remedies.   For instance, New
Jersey's high court established a committee to study and make
recommendations on the electronic recording of interrogations
(see State v Cook, 179 NJ 533, 847 A2d 530 [2004]) and ultimately
adopted a rule, generally requiring electronic recording of
interrogations that are conducted in police stations or other


                               - 2 -
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"places of detention," for individuals who are charged with
serious felonies (see New Jersey Rules Governing Criminal
Practice R 3:17; see also Ind R Evid 617).   The failure to record
allows the trial court to consider whether the statement should
be admissible and is a factor for the jury to consider in
determining whether the statement was actually made and, if so,
what weight it should be accorded (Rule 3:17 [d]; see also Ark R
Crim P 4.7).   Where the statement was not recorded, the defendant
is entitled to a cautionary instruction upon request (see Rule
3:17 [e]).
          The Massachusetts Supreme Court has similarly
determined that a cautionary jury instruction is appropriate at a
defendant's request, where the prosecution introduces evidence of
an unrecorded custodial interrogation (see Commonwealth v
DiGiambattista, 442 Mass 423, 447, 813 NE2d 516, 533 [2004]).
The instruction advises the jury "that the State's highest court
has expressed a preference that such interrogations be recorded
whenever practicable, and caution[s them] that, because of the
absence of any recording of the interrogation in the case before
them, they should weigh evidence of the defendant's alleged
statement with great caution and care" (442 Mass at 447-448, 813
NE2d at 533-534).
          Other state high courts have determined, also in the
exercise of their supervisory authority, that custodial
interrogations must be recorded and that the failure to do so can


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result in the suppression of the statement at trial (see State v
Scales, 518 NW2d 587, 592 [Minn 1994]; In re Jerrell C.J., 283
Wis 2d 145, 172, 699 NW2d 110, 123 [2005] [applicable only to
juveniles, but the Wisconsin Legislature subsequently enacted
separate legislation providing for a jury instruction for felony
suspects (Wis Stat Ann §§ 968.073, 972.115)]).        Finally, Alaska
has held that it is a state due process violation for law
enforcers to fail to record a custodial interrogation, where such
recording is feasible (see Stephan v State, 711 P2d 1156, 1159
[Alaska 1985]).
            Despite the availability of these types of remedies in
states as diverse as Alaska and Arkansas, there is currently no
such measure in place in New York.        However, electronic recording
only becomes easier all the time and there is no legitimate
argument why this best practice should not become universal in
the interest of a fair and impartial justice system.          Looking
ahead, then, when a law enforcement agency has the capability,
but fails to create a video record of a custodial interrogation,
a judicial response will be warranted.
*   *   *    *    *   *   *   *    *      *   *   *   *   *     *     *   *
Order affirmed. Opinion by Judge Abdus-Salaam. Judges Pigott,
Rivera and Stein concur. Chief Judge Lippman concurs in result
in a separate concurring opinion. Judge Fahey took no part.

Decided November 23, 2015




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