Montana Code 46-4-409. Exceptions to custodial recording requirements
46-4-409. Exceptions to custodial recording requirements. A judge shall admit statements or evidence of statements that do not conform to 46-4-408 if, at hearing, the state proves by a preponderance of the evidence that:
Terms Used In Montana Code 46-4-409
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Judge: means a person who is vested by law with the power to perform judicial functions. See Montana Code 46-1-202
- Person: includes a corporation or other entity as well as a natural person. See Montana Code 1-1-201
- State: when applied to the different parts of the United States, includes the District of Columbia and the territories. See Montana Code 1-1-201
- Statement: means :
(a)a writing signed or otherwise adopted or approved by a person;
(b)a video or audio recording of a person's communications or a transcript of the communications; and
(c)a writing containing a summary of a person's oral communications or admissions. See Montana Code 46-1-202
(1)the statements have been made voluntarily and are reliable; or
(2)one or more of the following circumstances existed at the time of the custodial interrogation:
(a)the questions put forth by law enforcement personnel and the person‘s responsive statements were part of the routine processing or booking of the person;
(b)before or during a custodial interrogation, the person unambiguously declared that the person would respond to the law enforcement officer’s questions only if the person’s statements were not electronically recorded;
(c)the failure to electronically record an interrogation in its entirety was the result of unforeseeable equipment failure and obtaining replacement equipment was not practicable;
(d)exigent circumstances prevented the making of an electronic recording of the custodial interrogation;
(e)the person’s statements were surreptitiously recorded by or under the direction of law enforcement personnel;
(f)the person’s statement was made during a custodial interrogation that was conducted in another state by peace officers of that state in compliance with the laws of that state; or
(g)the person’s statement was made spontaneously and not in response to a question.