Order                                                                         Michigan Supreme Court
                                                                                    Lansing, Michigan

  May 20, 2011                                                                         Robert P. Young, Jr.,
                                                                                                 Chief Justice

  142051                                                                               Michael F. Cavanagh
                                                                                             Marilyn Kelly
  PEOPLE OF THE STATE OF MICHIGAN,                                                     Stephen J. Markman
                                                                                       Diane M. Hathaway
            Plaintiff-Appellee,                                                            Mary Beth Kelly
  v                                                        SC: 142051                      Brian K. Zahra,
                                                           COA: 292547                                Justices
                                                           Wayne CC: 08-014892-FC
  VALERIE MARIE PARKS,
             Defendant-Appellant.
  _________________________________________/

        On order of the Court, the application for leave to appeal the September 21, 2010
  judgment of the Court of Appeals is considered, and it is DENIED, because we are not
  persuaded that the questions presented should be reviewed by this Court.

          MARILYN KELLY, J. (dissenting)
          I dissent from the order denying defendant’s request for leave to appeal. The
  application raises a jurisprudentially significant issue regarding the legal implications of
  the police failing to make an audio or visual recording of a custodial interrogation. This
  issue has received increased attention nationwide in recent years as more and more states
  implement some form of electronic recording requirement.
          In Stephan v State,1 the Alaska Supreme Court held that a failure to electronically
  record a custodial interrogation conducted in a place of detention violates a suspect’s
  right to due process under the state constitution. In Alaska, any statement thus obtained
  is generally inadmissible at trial. However, all other courts that have opined on the issue
  of whether the failure to record a custodial interrogation violates their state constitution
  have found it unmeritorious.2 Among them is our own Court of Appeals.3 This Court
  has not yet considered the issue.
          Although most courts have concluded that a failure to electronically record police
  interrogations does not violate their state constitution, many have recognized the benefits




  1
      711 P2d 1156 (Alaska, 1985).
  2
      See, e.g., State v Lockhart, 298 Conn 537, 557 n 10 (2010) (collecting cases).
  3
      People v Fike, 228 Mich App 178, 184 (1998).
                                                                                                                  2

of such recordings to all parties.4 Consequently, many states now require them. A few
courts have adopted mandatory recording requirements as part of their supervisory
powers. They have held that the proper remedy for a violation of that requirement is
suppression at trial of the statement made to the police.5 Other courts imposing a
recording requirement have adopted the remedy of a cautionary jury instruction when that
requirement is violated.6 Still other courts that have not yet adopted a recording rule have
directed further study on the merits of adopting such a rule.7
        Several state legislatures have passed statutes requiring electronic recording of
police interrogations.8 In Michigan, the House of Representatives passed a bill requiring
electronic recording of interrogations in 2010,9 but the legislative session ended before
the Senate took it up. The Michigan Senate unanimously passed a similar bill in April of
this year, and the measure is currently pending in the House.10
        Given these developments, I would grant defendant’s application for leave to
appeal. The issue that defendant presents involves legal principles of major significance
to this state’s jurisprudence. The Court should determine whether, in the exercise of its
supervisory powers, it should require that all custodial police interrogations in Michigan
be electronically recorded. If so, it should determine the appropriate remedy for a
violation of that requirement.


4
    See, e.g., id. at 188-190 (FITZGERALD, J., concurring).
5
  State v Scales, 518 NW2d 587, 592 (Minn, 1994); State v Barnett, 147 NH 334, 338
(2001) (a recorded interrogation is inadmissible unless the defendant’s statement is
recorded in its entirety); In re Jerrell CJ, 283 Wis 2d 145 (2005) (juvenile interrogations
only).
6
  Commonwealth v DiGiambattista, 442 Mass 423, 445-446 (2004); NJ Crim Prac R
3:17.
7
   See, e.g., Clark v State, 374 Ark 292, 304 (2008) (“[W]e believe that the criminal
justice system will be better served if our supervisory authority is brought to bear on this
issue. We therefore refer the practicability of adopting such a [recording] rule to the
Committee on Criminal Practice for study and consideration.”).
8
 DC Code 5-116.01; 725 Ill Comp Stat Ann 5/103-2.1; Me Rev Stat Ann tit 25, § 2803-
B(1)(K); Tex Code Crim Proc Ann art 38.22, § 3; Wis Stat § 972.115.
9
    HB 5763.
10
     SB 152.



                            I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
                      foregoing is a true and complete copy of the order entered at the direction of the Court.
                            May 20, 2011                        _________________________________________
          p0517                                                                 Clerk
