by Sagi Schwartzberg

The Supreme Court of Hawaii held that the due process clause of the Hawaii Constitution requires law enforcement to record all custodial interrogations conducted inside police stations and, when feasible, all custodial interrogations conducted outside of stations. The Court defined “recording” to mean a simultaneous video-and-audio recording of the custodial interrogation. In announcing this new constitutional rule, the Court overruled State v. Kekona, 886 P.2d 740 (Haw. 1994), which had declined to mandate recording as a constitutional requirement.

The Court reasoned that recording safeguards the right against self-incrimination under article I, section 10 of the Hawaii Constitution because the absence of a recording forces defendants into an unconstitutional choice between waiving the right not to testify or allowing unverified police testimony about their alleged statements to go unchallenged. Recording also advances the article I, section 14 right to confrontation by enabling meaningful cross-examination, the Court explained. The new rule carries “pipeline” retroactive effect, applying to all cases on direct review or not yet final as of the decision date, and violations result in exclusion of unrecorded statements but not derivative evidence.

Background

In October 2021, police officers in Kona, Hawaii, stopped a vehicle with an expired registration. Charles Zuffante occupied the passenger seat; his girlfriend was the driver and vehicle owner. After officers observed a glass pipe in the front cupholder, they arrested both occupants, found methamphetamine on Zuffante, and later recovered additional methamphetamine from the vehicle pursuant to a warrant. The officers documented the encounter with body-worn cameras.

The following day, a detective interrogated Zuffante inside the Kona police station’s interrogation room. Zuffante signed an advisement form, waiving his right to counsel and his right against self-incrimination. Although the room was equipped with video recording equipment, no recording was made. The detective attributed this to the equipment being “inoperable.” The detective took no contemporaneous notes and prepared a written report one week after the interrogation. Zuffante later testified he assumed the encounter had been recorded because he could see the camera in the room.

Before trial, Zuffante moved to exclude the detective’s testimony about statements allegedly made during the unrecorded interrogation, arguing that admission would violate his right to a fair trial. He urged the circuit court to adopt the recording requirement from Stephan v. State, 711 P.2d 1156 (Alaska 1985), which Kekona had previously rejected. The circuit court denied the motion.

At trial, the detective testified that Zuffante confessed that “everything” belonged to him, that “all the meth was his,” and that he sold methamphetamine. During this testimony, Zuffante interrupted from the defense table, declaring “That’s a lie.” Zuffante subsequently testified and contradicted the detective’s account, denying that he confessed ownership of the methamphetamine found in the vehicle and stating that no questions were asked about specific items containing drugs. The jury convicted Zuffante of promoting a dangerous drug in the first and second degrees. The court imposed a 20-year prison term. The Intermediate Court of Appeals (“ICA”) affirmed, and Zuffante petitioned for certiorari.

Analysis

The Court observed that Hawaii’s due process clause offers protections exceeding those provided by the federal constitution and operates independently of federal precedent. State v. Bowe, 881 P.2d 538 (Haw. 1994); State v. Matafeo, 787 P.2d 671 (Haw. 1990). No United States Supreme Court decision has addressed recording requirements for custodial interrogations, but even if one existed, Hawaii courts examine state constitutional provisions first. State v. Wilson, 543 P.3d 440 (Haw. 2024).

The Court identified three constitutional interests advanced by mandatory recording. First, recording protects the right against self-incrimination by relieving defendants of an unfair burden in deciding whether to testify. Second, recording furthers the right to confrontation by providing objective evidence for meaningful cross-examination. Third, recording promotes accurate fact-finding and judicial efficiency by reducing credibility contests between officers and defendants.

The Court stated that the decision to testify constitutes “the biggest decision a defendant makes at trial.” When no recording exists, the only evidence a jury receives about an interrogation comes from law enforcement, unless the defendant testifies. This creates what the Court characterized as a constitutional bind: remain silent while damaging testimony goes unchallenged, or waive the right not to testify. The Court determined that this choice undermines the freedom that article I, section 10 guarantees.

Drawing on its precedent recognizing the powerful effect of confessions, the Court noted that a defendant’s own statements represent “probably the most probative and damaging evidence that can be admitted against them.” Arizona v. Fulminante, 499 U.S. 279 (1991). The Court traced Hawaii’s history of crafting procedural safeguards to protect the right against self-incrimination, including mandatory colloquies regarding the right to testify, exclusion of statements obtained through coercive tactics, and requirements that Miranda warnings be administered when probable cause arises.

Applying plain error review, the Court ruled that the lack of recording undermined Zuffante’s ability to freely and voluntarily choose between testifying and remaining silent. The admission of the detective’s testimony about the unrecorded interrogation “seriously affected the fairness” of the trial, according to the Court.

Recording advances article I, section 14’s promise of meaningful cross-examination, the Court reasoned. When prosecution witnesses testify about alleged confessions, defense counsel must confront not only an officer’s recollection of the defendant’s words but also the circumstances under which those statements were obtained. Recording preserves the precise content, context, and tone of the interrogation, enabling effective challenge to otherwise uncorroborated evidence.

The Court stated that neutral, unfiltered evidence enhances the truth-detecting function of cross-examination. Recording provides the factfinder “the best evidence available.” State v. Jones, 49 P.3d 273 (Ariz. 2002). Rather than evaluating competing characterizations of what occurred, judges and juries can assess the “precise contents” of the interrogation, the Court explained. Commonwealth v. DiGiambattista, 813 N.E.2d 516 (Mass. 2004).

Beyond constitutional rights, the Court identified practical advantages. Recording creates an objective account that can verify proper administration of Miranda warnings and validate knowing, intelligent, and voluntary waivers. Human memory, by contrast, is “often faulty,” the Court noted, as “people forget specific facts, or reconstruct and interpret past events differently.” Recording reduces litigation over voluntariness and largely eliminates “swearing contests” that defendants, by status alone, tend to lose, the Court stated.

The Court also recognized that recording promotes transparency and protects officers from false accusations of coercion or misconduct.

The Court declined to limit the requirement to police stations. Modern technology has made recording feasible in virtually all settings, with officers now routinely wearing high-quality body cameras. Every county police department in Hawaii employs body-worn cameras, and departmental policies already instruct officers to record enforcement-related encounters. The pressures inherent in custodial interrogations and the need for objective evidence exist regardless of location, according to the Court. Restricting the requirement to stations might create “a perverse incentive for law enforcement to conduct interrogations elsewhere,” a concern Kekona itself had expressed.

Three decades earlier, Kekona acknowledged that recording custodial interrogations is “important in many contexts” but held that no constitutional provision required the practice. The Court determined that subsequent developments warranted departure from that precedent. DNA evidence has demonstrated how false confessions contribute to wrongful convictions: approximately one-third of 375 DNA exonerations between 1989 and 2020 involved false confessions. Recording technology has become ubiquitous and inexpensive. Federal law enforcement agencies, 30 states, and the District of Columbia now mandate recordings as standard protocol. Given these changes and Hawaii’s “dynamic tradition of rights protection,” the Court concluded that stare decisis must yield.

The Court established that unrecorded custodial statements must be excluded unless the State demonstrates by a preponderance of the evidence that recording an out-of-station custodial interrogation was infeasible under the circumstances.

Applying its retroactivity framework, the Court weighed the purpose of the new rule, law enforcement’s reliance on prior standards, and effects on judicial administration. Lewi v. State, 452 P.3d 330 (Haw. 2019). The Court rejected both purely prospective and fully retroactive application, selecting “pipeline” retroactivity, meaning the rule applies to the parties before the Court and all cases on direct review or not yet final as of the decision date. Full retroactivity was inappropriate given law enforcement’s decades-long reliance on Kekona, but purely prospective application would undermine constitutional rights the Court deemed sufficiently important to warrant limited retroactive effect.

Conclusion

Accordingly, the Court vacated the ICA’s judgment and the circuit court’s judgment of conviction and sentence, remanding for proceedings consistent with its opinion. See: State v. Zuffante, 576 P.3d 243 (Haw. 2025).

Editor’s Note: Anyone with an interest in the requirement that law enforcement record all custodial interrogations is encouraged to read the Court’s full opinion.  

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