An unrecorded police interrogation—inside and outside the station—violates Due Process in Hawaii.

 State v. Zuffante (HSC September 17, 2025). Charles Zuffante and his girlfriend were pulled over by the police for driving around Kona with expired registration. The car was registered to his girlfriend. The officers saw a glass pipe in the center cupholder and arrested them. The police searched Zuffante and found 3.5 grams of methamphetamine in his pocket. The event was recorded on their body worn cameras (BWC). Then they got a warrant to search the car and seized 130 grams of methamphetamine found in a handbag, a black and white polka dot coin purse, a sunglasses case, and a fanny pack.

 

The next day, a detective interrogated Zuffante after Zuffante waived his right to remain silent and his right to have an attorney present during the interrogation. The interrogation occurred in the Kona station interrogation room. The detective later claimed that the audio and video recording devices in the room were inoperable. Zuffante assumed it was working because “they have a camera right there[.]” And the detective took no notes. His report came out a week later paraphrasing Zuffante’s purported confession.

 

Zuffante filed a motion in limine asking the court to preclude the confession. According to Zuffante, allowing the jury to hear uncorroborated testimony from the detective about what was said violated his right to a fair trial. And he urged the court to adopt Stephan v. State, 711 P.2d 1156 (Alaska 1985), where the Alaska Supreme Court interpreted its state constitution’s due process clause to require recorded confessions. Stephan was rejected by the HSC in State v. Kekona, 77 Hawaii 403, 886 P.2d 740 (1994). The motion was denied.

 

At trial the detective testified that Zuffante confessed. In the interrogation room, Zuffante admitted to possessing all of the methamphetamine from his girlfriend’s car. The detective told the jury that he said that “all the meth was his” and that “he sells the crystal methamphetamine.” In the middle of the detective’s examination, Zuffante said, “that’s a lie.”

 

Zuffante decided to testify and “tell the Court what happened.” He denied confessing to possessing all of the methamphetamine. He said there were no questions about the meth found in the handbag, the coin purse, sunglasses case, and the fanny pack. He told the detective that he sold methamphetamine to protect his girlfriend. The jury found Zuffante guilty as charged. The court sentenced him to prison for twenty years. He appealed, the ICA affirmed, and the HSC granted his petition.

 

An unrecorded interrogation violates the right against self-incrimination. The HSC found that the circuit court plainly erred in allowing the detective to testify about the unrecorded confession. “The right to testify, or not, is the biggest decision a defendant makes a trial.” State v. Hirata, 152 Hawaii 27, 34, 520 P.3d 225, 232 (2022). And the failure to record a custodial interrogation put Zuffante “in a constitutional bind.” He could have let the detective’s testimony go uncontested or waive the right to not testify. “Once the detective testified to his alleged confession, Zuffante had no real choice but to testify himself. This illusory choice—either remain silent and let decisive evidence go unchallenged, or testify to refute the testimony—dents the right against self-incrimination.” This bind is untenable.

 

Citing cases that have “crafted constitutional rules to advance article I, section 10’s right against self-incrimination,” the HSC adopted a new rule: “law enforcement is required to record all in-station custodial interrogations, and all outside-the-station custodial interrogations when feasible.” The right against self-incrimination is part in parcel of the due process right to a fair trial.

 

Hawaii’s Due Process Clause also requires recordings. “No person shall be deprived of life, liberty or property without due process of law[.]” Haw. Const. Art. I, Sec. 5. And while the language is identical to the due process clauses found in the Fifth and Fourteenth Amendments, it operates differently. The HSC held that recording a defendant’s custodial interrogation “animates the right to confrontation and the right against self-incrimination.”

 

The HSC noted that the State’s due process clause is different from the federal counterpart. It is “agile. Norms, values, and experiences change over time. A constitution adapts.” Accordingly, due process matures with technological advancements to protect constitutional rights. That is why in Hawaii, “due process is flexible and calls for such procedural protections as the particular situation demands.” State v. Bani, 97 Hawaii 285, 296, 36 P.3d 1255, 1266 (2001). The HSC observed that modern technology has made video and audio recordings “feasible in virtually all settings. Officers wear high-quality cameras. The widespread use of recording devices checks any claim that recording is unworkable outside police stations.”

 

And so, the HSC overruled Kekona and fashioned a new rule to comport with Hawaii’s Due Process Clause:

 

We hold that article I, section 5 of the Hawaiʻi Constitution requires not only that all custodial interrogations in police stations be recorded, but that all custodial interrogations no matter the place, be recorded.

This rule is a reasonable and necessary safeguard, essential to the protection of the accused’s right to confrontation, right against self-incrimination, and right to a fair trial.

We hold that unless the State establishes by a preponderance of the evidence that recording a custodial interrogation outside the station is infeasible under the circumstances, the failure to record results in the exclusion of the unrecorded statement.

Feasibility quells worries that evidence of otherwise constitutional interactions will be inadmissible at trial. If outside-the-station recording is not feasible, the statements obtained are admissible.

 

But there are limits. The HSC expressly held that the remedy for the unrecorded custodial interrogation is the unrecorded statement itself. Derivative evidence is not covered by the rule. That’s because this is a procedural rule “not a direct constitutional violation like a coerced confession.” The HSC offered no citation for this limitation.

 

The new rule has limited retroactive effect. Finally, the HSC noted that the new rule has a “pipeline” retroactive effect. That means the rule applies to the parties in the case and “all cases that are on direct review or not yet final as of the date of the decision;[,]” September 17, 2025. Lewi v. State, 145 Hawaii 333, 349 n. 21, 452 P.3d 330, 346 n. 21 (2019).

 

Chief Justice Recktenwald’s concurrence and dissent. The CJ agreed with the problems that arise with unrecorded confessions. And he agreed that the time has come to revisit a new rule mandating recording interrogations in the police station. But the CJ disagreed with the way the majority handled it.

 

He believed that the recording rule requires a more nuanced approach balancing law enforcement’s need to investigate and the criminal defendant’s rights. The rule, wrote the CJ, does not take into account exigent circumstances, equipment malfunctions, or spontaneous statements. It does not take into account how feasibility should be determined and that will lead to more litigation.

 

The CJ agreed with Justice Ginoza that a special rule should be fashioned by “bringing stakeholders together” and come up with a more nuanced and balanced rule. The CJ would have overruled Kekona, adopt a prospective-only rule because it overruled precedent, and urged “stakeholders” to get together and fashion a more nuanced and balanced rule. In the meantime, he would have adopted a jury instruction cautioning the jury to carefully evaluate the reliability of an unrecorded custodial statement given in the police station.

 

Justice Ginoza’s dissent. Justice Ginoza would have rejected Zuffante’s due process claims. She wrote that the majority imposes “a harsh exclusionary rule” without “actual information about the ability of law enforcement to meet the majority’s new mandates.” It would have been better for “key stakeholders—including law enforcement, the attorney general, prosecutors, the public defender, and others—because there is too much this court does not know about on-the-ground ability and resources to effectuate this new rule.”