# People v. Fike > Michigan Court of Appeals · May 22, 1998 · 228 Mich. App. 178 URL: https://www.frixlaw.com/law-library/cases/9686289 ## Case - **Full name:** People v. Fike - **Court:** Michigan Court of Appeals - **Decided:** May 22, 1998 - **Citations:** 228 Mich. App. 178; 577 N.W.2d 903 - **Precedential status:** Published - **Opinion:** Concurring in part by Fitzgerald - **Judges:** Fitzgerald, O'Connell, Whit-Beck, Whitbeck - **Cited by:** 163 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9686289 ## How later opinions describe it (automated extraction) - finding “a deficiency in the defendant that is not exploited by the police cannot annul the voluntariness of a confession unless there is evidence of police coercion.” - finding that the defendant failed to establish that he received ineffective assistance of counsel as his Fourth Amendment claim had no merit - explaining that “trial counsel cannot be faulted for failing to raise an objection or motion that would have been futile” - holding that the due process clause of the Michigan Constitution does not require the recording of custodial confessions ## Opinion text Fitzgerald, P. J. (concurring in part and dissenting in part). *187 I The majority concludes that the record does not support defendant’s contention that his statements were not voluntary or that he did not intelligently and knowingly waive his rights. As a result of this conclusion, the majority holds that a motion to suppress would have been futile and that counsel was therefore not ineffective in failing to move to suppress defendant’s statement. 1 1 disagree. Indeed, the lack of record support for defendant’s argument that his confession was coerced is attributable to the fact that defense counsel failed to move for a Walker 2 hearing regarding the voluntariness of defendant’s confession. Given defense counsel’s acknowledgment at sentencing that defendant has a less-than-average intelligence level, is easily confused, and is unable to read or write, together with the fact that defendant was subjected to a nearly three-hour interview after he initially denied any involvement in this incident, see People v DeLisle, 183 Mich App 713, 719, 721 ; 455 NW2d 401 (1990) (the length of the defendant’s interview strongly suggested that his statement was not voluntarily made), I can discern no trial strategy that would have prevented trial counsel from moving to suppress defendant’s confession. Because some record support exists for defendant’s contention, and because the record is inadequate to permit thorough review of defendant’s claim, I would remand for a Walker hearing and a Ginther 3 hearing. MCR 7.216(A)(7). *188 n I agree with the majority that the failure of the police to make an audio or visual recording of defendant’s interview did not violate defendant’s rights under the Due Process Clause of the Michigan Constitution. I write separately, however, to urge the Legislature to promulgate a statute mandating the electronic recording of prestatement conversation and actual interrogation and, unless and until that time, I urge law enforcement officers to make such recordings voluntarily. The failure of law enforcement officers to record and preserve an accused’s statements frequently results in the loss of essential parts thereof. See Miranda v Arizona, 384 US 436 ; 86 S Ct 1602 ; 16 L Ed 2d 694 (1966). Even a few hours after hearing a conversation, it is difficult for a person to present precise and accurate testimony about those recent statements. Therefore, testimony in court weeks or months after confessions and statements are made is inevitably incomplete and at least partially inaccurate. This inevitable fallibility of human memory can be rectified by a contemporaneous recording of the confession and related interrogation. In Stephan v State, 711 P2d 1156 (Alas, 1985), the Alaska Supreme Court stated that a recording requirement provides a more accurate record of a defendant’s prestatement conversation and interrogation and makes it possible for a defendant to challenge misleading or false testimony and, at the same time, minimizes the subsequent assertion of questionable claims of denial of constitutional rights as well as claims of unknowing or involuntary waiver of such rights. Id. at 1160-1162 . Further, recordation of all prestatement *189 conversations and interrogations will afford a reviewing court an objective record on which to rule. Thus, the court held that recording “is now a reasonable and necessary safeguard, essential to the adequate protection of the accused’s right to counsel, his right against self incrimination and, ultimately, his right to a fair trial.” 4 Id. at 1159-1160 . A recording requirement also discourages unfair and psychologically coercive police tactics and thus results in more professional law enforcement. 5 The technology presently exists to record readily and accurately by both video and sound tapes the statements of witnesses and accuseds. Indeed, when it is to the advantage of law enforcement officers to record the actions or statements of accuseds and witnesses, this is often done. See Stephan, supra. The courts are therefore presented with a situation in which the police, with only a minimal expenditure of effort and money, have the technical capability to preserve vital testimony to assure that the accused’s rights have been observed and to validate the integrity of the actual interrogation. Others have recognized the protections that a recording requirement would provide. See, e.g., Hendricks v Swenson, 456 F2d 503 (CA 8, 1972) (suggesting that videotapes of interrogations protected the defendant’s rights and are a step forward in the *190 search for truth); Ragan v State, 642 SW2d 489 (Tex Crim App, 1982); Tex Crim Proc Code Ann, art 38.22, § 3 (Vemon, 1979) (requiring that oral statements of the accused must be recorded in order to be admissible). Commentators have advocated a recording requirement. See, generally, Kamisar, Foreword: Brewer v Williams — A hard look at a discomfiting record, 66 Geo L J 209 (1977). The Uniform Rules of Criminal Procedure, R 243, p 57 (1974), provides that information about rights, any waiver thereof, and all questioning shall be recorded where feasible, and must be recorded when the questioning occurs at a place of detention. The Model Code of PreArraignment Procedure of the American Law Institute, § 130.4(3) (1975), also contains a recording requirement. The court system is entitled to receive the best evidence available in order to resolve the serious criminal matters that come before it. A logical consequence of this principle is the need for the consistent systematic recording of all interviews of a detained accused conducted by law enforcement officials. Thus, I am persuaded that the electronic recording of prestatement conversation and custodial interrogations, where feasible, and where made in a place of detention, is now a reasonable and necessary safeguard, essential to the adequate protection of the accused’s right to counsel, his right against self-incrimination, and his right to a fair trial. Defendant’s motion to remand for an evidentiary hearing was denied by this Court. People v Walker (On Rehearing), 374 Mich 331 ; 132 NW2d 87 (1965). People v Ginther, 390 Mich 436 ; 212 NW2d 922 (1973). The Stephan analysis is relevant despite the fact that the Alaska Supreme Court concluded that recording is a requirement of state due process. Id. at 1159-1160 . In this regard, I note that defendant was interviewed by Sgt. John J. Palmatier of the Michigan State Police. In DelAsle, supra, this Court held that defendant DeLdsle’s statement, which was made during a nearly 3V2-hour interrogation by Sgt. Palmatier, was inadmissible because it was, among other things, the product of coercive police activity. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9686289. Public record. Not legal advice.