Appellate Courts Should ‘Roll the Tape,’ Regardless of Review Standard
Appellate review of the tape is necessary to evaluate sufficiency of the evidence. We continue to believe viewing the primary evidence, the source itself, is necessary and appropriate.
In January, 2012, we stated our agreement with the dissent in State v. Diaz-Bridges, 208 N.J. 544 (2012). Justice Barry Albin, joined by Chief Justice Stuart Rabner, concluded that the entire statement of the 19-year-old defendant in that case, given during a custodial interrogation, should have been suppressed. The conclusions of both the majority and dissent in Diaz-Bridges were based on their review of a videotape of the interrogation. While our editorial at the time addressed the merits—agreeing with the dissent that it was “regrettable that the vigor of this examination of an unrepresented defendant was not accompanied by concern about the protection of his rights,” (see “The Right to Remain Silent,” January 26, 2012)—the impact of the interrogation videotape was significant.
In concluding that the defendant’s request to speak with his mother did not constitute “an invocation of the right to silence,” the Diaz-Bridges majority applied a de novo standard of review, stating that “when the trial court’s sole basis for its findings and conclusions is its evaluation of a videotaped interrogation, there is little, if anything, to be gained from deference. In that circumstance … appellate courts are not confined to a review of a transcript nor obligated to defer to the trial court’s findings, but may consider the recording of the event itself… . When the trial court’s factual findings are based only on its viewing of a recorded interrogation that is equally available to the appellate court and are not dependent on any testimony uniquely available to the trial court, deference to the trial court’s interpretation is not required. Appellate courts need not, and we will not, close our eyes to the evidence that we can observe in the form of the videotaped interrogation itself.” Stated differently, the majority found that appellate judges cannot simply ignore what they can see and hear for themselves, and that they are quite competent to evaluate audio and video tapes when reviewing motions to suppress from the trial courts. The Albin dissent, however, believed that even a de novo review of the tape supported the trial judge’s decision to suppress the statement and reflected that the state had not met “its burden of proving beyond a reasonable doubt the voluntariness of defendant’s confession.. .”
In State v S.S, 229 N.J. 360 (2017), the Supreme Court recently revisited and overruled the de novo standard of review it had adopted in Diaz-Bridges. The trial court in S.S. had granted defendant’s motion to suppress based on its review of a videotape of the interrogation. A panel of the Appellate Division reviewed the videotape, applied the Diaz-Bridges de novo standard of review, and reached the opposite conclusion, holding that defendant never revoked the waiver of his right to remain silent. The Supreme Court reversed. With Justice Albin now writing for a unanimous court, it held that “a trial court’s factual findings should not be overturned merely because an appellate court disagrees with the inferences drawn and the evidence accepted by the trial court or because it would have reached a different conclusion. An appellate court should not disturb a trial court’s factual findings unless those findings are ‘so clearly mistaken that the interests of justice demand intervention and correction.’” In reaching that conclusion, the S.S. court reviewed federal and state precedent, and found that de novo review would “undermine the legitimacy” of trial courts that have a different role and function than appellate courts have in the system.
The S.S. decision expressly preserves the role of the appellate court to take “corrective action when factual findings are so clearly mistaken—so wide of the mark—that the interests of justice demand intervention” in the absence of “sufficient credible evidence in the record.” That standard, at least academically, is quite different from having a difference of view or opinion as to the evidence. However, we have difficulty accepting that if an appellate panel unanimously believes that a waiver was involuntary, the panel will not find that the “interests of justice” require correction. In that context we emphasize that S.S. does not preclude appellate review of the tape. In many cases in which the interview or interrogation is recorded, as the Supreme Court has said it must be, appellate review of the tape is necessary to evaluate sufficiency of the evidence. In some cases, the testimony may suffice to determine sufficiency of the evidence without watching the tape, but we continue to believe viewing the primary evidence, the source itself, is necessary and appropriate to determine whether a trial court decision is based on sufficiency of the evidence in the record or “constitutes a manifest injustice.”
Source: Law Journal Editorial Board