A Recorded Interrogation
Wis. Stat. 968.073 — a policy to record felony interrogations, and Wis. Stat. 972.115 — the jury instruction when none exists
The policy. It is the policy of the state to make an audio or audio and visual recording of a custodial interrogation of a person suspected of committing a felony, unless an exception applies or good cause is shown. The officer is not required to tell the person the interrogation is being recorded.
The instruction. If a defendant's statement from a custodial interrogation is admitted in a felony jury trial and no recording is available, on the defendant's request the court instructs the jury that it is the state's policy to record such interrogations and that the jury may consider the absence of a recording in evaluating the evidence.
- The person refused to respond if recorded, and the refusal was recorded or written down.
- The statement answered a routine processing question, or was spontaneous.
- The equipment failed or was inadvertently not operated, in good faith.
- Exigent public safety circumstances prevented recording.
Those are among the conditions under which the instruction is not given, if the state asserts and the court finds one applies.
Whether questioning was a custodial interrogation, and what follows from a missing recording in a particular case, are questions of fact and law for a licensed Wisconsin attorney. Miranda and the voluntariness of a statement are separate questions this page does not cover.
Sources for this section (2)
- Wis. Stat. 968.073 — Recording custodial interrogations
- Wis. Stat. 972.115 — The jury instruction when there is no recording
Legal information, not legal advice. Verified as of September 2026. Applying it to a particular situation is the work of a licensed Wisconsin attorney.