Recording Interrogations and Confessions
Many law enforcement agencies continue to resist suggestions to videotape suspects' interrogations and confessions, however as the benefits of recording become apparent, courts and legislatures are beginning to mandate such recording or, at minimum, penalize law enforcement for choosing not to record. Some of the arguments for and against, as well as law enforcement experiences with recording are discussed below.
There is extensive literature including research studies, legislative memoranda, and other information relating to the efficacy of recording of interrogations and confessions. Some resources include:
• Police Experiences with Recording Custodial Interrogations, Thomas P. Sullivan, Northwestern University School of Law (Summer 2004).
• Practices of U.S. police departments regarding recording interrogations, Sullivan and Thomas (2003).
• Eye on Interrogations: How Videotaping Serves the Cause of Justice, Hennepin County Attorney website (2002).
• Report of the Governor’s Commission on Capital Punishment (Illinois, 2002).
• True Confessions, Margaret Talbot, http://www.truthinjustice.org/confessions.htm (2004).
• Statement of the District of Columbia Association of Criminal Defense Lawyers in Support of Bill 14-3 “The Miranda Codification Act of 2001”
• Pathways to Better Police-Community Relations in Rochester, Commission on Police- Community Relations, Rochester, New York (August 24, 2004, updated October 2004). The Commission recommends, at page 153 of its report that “the City, Rochester Police Department, the County and the District Attorney’s office, along with the local courts, consider investing in a pilot project to test the benefits and any concerns about the use of videotaped interrogations.”
• Resolution of the New York State Bar Association House of Delegates (June, 2004). The Criminal Justice Section of the Association, comprised of both prosecutors and defense counsel adopted, and the House of Delegates overwhelmingly approved, a resolution recommending the videotaping of all custodial interrogations. The resolution goes on to urge legislatures and courts to mandate such recording, provide necessary funding, and impose sanctions for noncompliance.
• The Police Experience: Recording Custodial Interrogations, Thomas P. Sullivan, The Champion (December, 2004). This article summarizes the results and law enforcement responses to recording custodial interrogations described in more detail in the Northwestern University School of Law report Police Experiences with Recording Custodial Interrogations (Summer 2004), above.
Law enforcement agencies that have not recorded interrogations and confessions have almost uniformly resisted it – until it’s been tried. In those jurisdictions that have implemented taping, either voluntarily or by statute or court order, law enforcement response has been uniformly favorable. Thomas P. Sullivan, a lawyer and former U.S. Attorney in Chicago who has studied police experience with videotaping, found that “I never talked to a police department chief who had started to tape who had not come to like it. Not learned to live with it, but authentically came to like it” (The Police Like Taped Interrogations, Too; Syracuse Post Standard, 6/21/04).
Chelsea, Massachusetts Police Chief Frank Garvin commented on his experience recording interrogations as follows: “There was nothing more devastating than to play a tape of that in court. It was so dramatic to hear the person’s own voice say what happened . . . I always thought it was the best thing to do and still do” (Boston Globe, 8/17/04, Mass Supreme Judicial Court Rules on the Use of Confessions). Captain Michael Martin, commander of the Central Investigation Division for the Minneapolis Police Department went further in his endorsement of videotaping:
If I could talk to cops from all over the country, I would tell them start doing this as soon as you can. You will find that this is the best thing that ever happened to you, and if you ever wanted to stick it to a defense attorney, this is the way to do it, because you take away every defense that they use against you right now.
(Videotaping Police Interrogations of Murder Suspects, NPR: Morning Edition, 3/4/03). At the same time, the concerns expressed about videotaping – cost, reduction in number of confessions, challenges to taping procedures – have not been borne out. Some of those concerns are addressed below.
Suspects won’t confess, or are less likely to confess if they’re being videotaped
Experience has shown that not only do suspects confess when being recorded, but do so with a frequency virtually identical to confessions that are not recorded (Police Experiences with Recording Custodial Interrogations, 19-23). Lt. Dan Grout, who heads the Minneapolis Police Department Homicide Unit notes that “we’re still getting as many confessions and convictions as we used to get” (Secret Interrogation Still the Norm, Democrat and Chronicle, 5/29/99). Even in those jurisdictions unlike New York that require consensual recording, suspects overwhelmingly consent to recording, then go on to confess. In New York, which allows surreptitious recording, the added impediment of obtaining suspect consent to recording is not present.
Incomplete recording or failure to record can be challenged
Since there is no obligation to record interrogations or confessions, no adverse inference could result from the inability to record where recording is not possible or practical (confession is obtained outside of the police station, recording not started until after questioning has begun, etc.). In these circumstances, a “good faith” exception, including a judicial instruction to juries that no adverse inference may be drawn from the failure to record might be expected, as it is consistent with the present state of the law. Of course, selective recording, or refusal to record at all is already challengeable and is routinely challenged; officers are by now familiar with this line of cross-examination, and would be in no worse position if some but not all interrogations (or some part but not the entire interrogation) were recorded.
If jurors see the ploys used to get confessions, they won’t convict
The overwhelming percentage of confessions don’t require resort to those tactics which, although permitted by law, may be offensive to a jury (lying about presence of suspect’s fingerprints on a murder weapon or the presence of a non-existent eyewitness identification, for example). Beyond that, concerns about the jury’s ability to appreciate the use of lawful interrogation techniques have proven to be unfounded. Margaret Talbot (True Confesssions), reports:
Whenever prosecutors in Hennepin County, Minnesota, use an interrogation tape that shows officers resorting to what might look like unorthodox methods, they have the officers take the stand and explain that their actions are accepted law-enforcement techniques. “Jurors understand,” says Amy Klobuchar, the county attorney. “And you have to balance the risk with the great advantage to the prosecution of having jurors be able to see a person confessing on videotape and see his demeanor right after the crime, which may be a lot different from his cleaned-up appearance in court.”
Sometimes, she adds, there are advantages she would never have imagined: “My favorite story is of the time when we had a suspect who claimed to be blind. The police left the interrogation room for a few minutes, and the videotape caught him picking up a paper and starting to read it.” (A recent editorial in the Chicago Tribune noted a similar case in Kankakee County, Illinois, where the videotaping of interrogations is routine. A suspect who had repeatedly denied that he had killed a young woman was left alone in the room for a few minutes, during which he seemed to forget about the video camera and began singing, “Ding, dong, the wicked witch is dead ...”).
Equipment is too expensive or too cumbersome
Margaret Talbot observes that “these objections are largely unfounded. Videotaping is cheap: cameras cost a few hundred dollars, and whatever expense a police department incurs in videotaping is considerably less than the multimillion-dollar awards some states have paid for wrongful convictions” (True Confesssions ). This argument cannot seriously be credited when video recorders are already installed in every New York State Police cruiser and every grammar school Christmas pageant is videotaped by dozens of cameras simultaneously.
In fact, officers already videotape when they perceive it to be in their interest to do so (e.g., cameras in State Police cruisers). In Rochester, New York the D.W.I. interview room in the booking area of the jail was formerly equipped with a video camera to record the question and processing of suspects, which yielded recordings of suspects vomiting on the booking officer, singing nursery rhymes, and attempting to urinate in the emergency eye-wash sink. Those cases ended quickly. The video camera was subsequently removed from the D.W.I. booking room not because it wasn’t effective, but because officers began to face cross-examination about why videotaping wasn’t used in other more serious cases, such as robberies and homicides.
At the same time, there are compelling reasons to videotape interrogations and confessions.
Recording interrogations and confessions saves law enforcement resources
Recorded interrogations and confessions virtually eliminate the need for police officer testimony at suppression hearings on the issue of voluntariness of the confession; the prosecution could simply admit the videotape and the hearing judge could review it. Recording also saves law enforcement testimony at trial in many cases – a good recorded confession signals the end of a prosecution, long before trial.
Videotaping or digitally recording eliminates false claims of police misconduct or abuse. It also eliminates the argument that officers intentionally deprived the hearing court or jury of the best evidence of how the interrogation and subsequent confession actually occurred, as both the officer’s and the suspect’s exact words are there for all to see. Viewing a recording immediately and conclusively resolves issues of whether the officer struck or threatened the defendant, whether the defendant was intoxicated, cooperative, or belligerent, did or didn’t say something, or what tone of voice or manner was used by the officer or the defendant.
In cases where statements are videotaped or recorded, if a defendant goes to trial the jury will see him testify, if not live, then on videotape (where his “testimony,” demeanor, and actions can’t be added to or explained without testifying and being subjected to cross-examination).
False confessions hurt everyone
The victim’s family, the community (since the real perpetrator goes free to re-offend, and the reliability of the public’s perception of the reliability of the criminal justice system is adversely affected), the innocent person who is punished, and the judicial and law enforcement resources that are needlessly wasted are all casualties when a conviction rests on a false confession.
In December, 2002, a Marion County, Indiana judge threw out the confession of Charles Daugherty who supposedly told police he raped and killed 11-year-old LaShonna Bates in 1994. After being questioned by the police for 13 hours, Daugherty gave two taped statements. However, his admission never matched the facts of the case, and the mentally retarded man was freed. Just a week earlier, the New York Court of Appeals threw out the convictions of the five men who confessed and were found guilty of raping the Central Park jogger in 1989 after DNA evidence fingered a serial rapist.
“Taping [interrogations and confessions] would eliminate a lot of miscarriages of justice, a lot of frivolous claims of police misconduct,” says Richard Ofshe, University of California professor and expert on false confessions. “False confessions are a major contributor to miscarriages of justice and . . . probably the most easily fixed problem in the criminal justice system.” Such precautions might have headed off the dismissal of murder charges against Daugherty. The suppression of his statements may taint the case forever, leaving attorneys for any other suspect in the killing able to use Daugherty’s false confession to raise doubts with a jury.
Attorney Peter Neufeld, cofounder of the Innocence Project, speaking at Monroe County Bar Association Legal Service Providers Luncheon in November, 2004 noted that in 30% of the 150 cases where wrongfully convicted persons were exonerated by DNA evidence, the innocent person had falsely confessed; false confessions and misidentifications are the most common factors in cases of wrongful conviction.
In 2001, after the number of wrongfully-convicted inmates released from Illinois’ death row surpassed the number of capital defendants executed, the Governor convened a commission to study the causes of wrongful convictions. This commission found that one of the two pre-eminent contributors to wrongful convictions were misidentifications and false confessions. The committee recommended the recording of all interrogations and confessions in homicide cases, and in order to facilitate this process, further recommended amending Illinois law be changed so that such recordings may be made surreptitiously (Report of the Governor’s Commission on Capital Punishment, pp. 24-30).
Reliable confessions lead to reliable determinations of guilt or non-guilt at the earliest stage of the proceedings, finality of convictions through elimination of appellate litigation concerning the voluntariness of confessions and propriety of police actions, and wise allocation of judicial resources, since the defendant’s statement and the voluntariness or reliability of it is often the only trial issue.
Videotaping or digital recording is becoming the accepted standard
Another reason to record confessions and interrogations is that it is the developing consensus of legislatures and law enforcement agencies that recording is beneficial. For example, Illinois, Maine, Texas, Alaska, the District of Columbia, and dozens of local jurisdictions have laws or regulations that mandate the recording of some or all interrogations and confessions. William J. Bratton, former Police Commissioner for New York City and Boston, in “A Law Enforcement View of Confessions” (CourtTV.com, 2000) commented:
Some police have been reluctant to videotape interrogations and confessions. I believe that is a mistake. We have become a society that accepts and relies upon technology. A properly conducted interrogation, leading to a videotaped confession, significantly bolsters the prosecution. Videotape is a significant improvement over audio recordings, which, in turn, are better than a signed statement or copies of police interrogation notes. Videotape minimizes the likelihood of a suspect’s recantation or allegations of police impropriety.
On January 31, 2003, the Ft. Lauderdale, Florida Police Department issued the following press release:
Effective immediately the Fort Lauderdale Police Department will begin videotaping interviews and confessions of homicide suspects.
This change in policy is as a result of extensive research by members of the Criminal Investigations Division of the Fort Lauderdale Police Department of departments both locally and nationally that do and do not videotape confessions. Detectives found that the advantages of taping far outweighed any perceived disadvantages. In a recent Department of Justice survey, 80% of departments that videotape confessions stated that it helped them make their case.
This change in policy will also allow juries to see the professionalism of our Detectives in conducting their interviews with suspects. Broward County State Attorney Michael Satz has stated that he favors Departments videotaping confessions and is pleased with Fort Lauderdale’s initiative in this area.
There is no legitimate reason not to record interrogations and confessions
Given the ubiquitousness of video technology (including cameras children can easily operate) and the experience of the ever-growing number of law enforcement agencies that videotape interrogations and confessions that these practices do not reduce the number of suspects willing to confess, it is becoming increasingly clear that there is no legitimate reason not to record interrogations and confessions. As Professor Yale Kamisar asks “Why should we assume that the police remember everything that happened?” (Illinois Will Require Taping of Homicide Investigations, New York Times, 7/16/03). In Illinois, Kankakee County State’s Attorney Edward Smith finds that a courtroom videotape is helpful given the popularity of home video cameras: “We feel that a common question in a juror’s mind might be: Why didn’t they tape it, if it’s so important?” (Cops Urged to Tape Their Interrogations, Chicago Tribune, 5/30/03).
The inescapable conclusion that flows from the refusal to record interrogations and confessions is that the interrogators are intentionally electing to deprive the fact-finder of the best evidence – a contemporaneous, verbatim recording of the suspect’s statements – in favor of a “sum and substance,” “I can’t recall” malleable recollection of events, impaired by imperfect memories and subject to the interrogators’ prism of prosecutorial bias. Slowly, courts and legislatures are beginning to agree.
In August, 2004, the Massachusetts Supreme Court ruled that when “interrogating officers have chosen not to preserve an accurate and complete recording of the interrogation, that fact alone justifies skepticism of the officers’ version of events, above and beyond the customary bases for impeachment of such testimony,” and ruled that juries must be so instructed by trial courts (Commonwealth v. DiGiambattista, 442 Mass. 423  [emphasis added]). The Massachusetts Supreme Court chose to recognize what every criminal practitioner knows – often the real reason officers chose not to record the interrogation process is to insure the swearing contest between law enforcement and the criminally accused concerning what exactly occurred, a contest in which the officer has a built-in credibility advantage with courts and most jurors.
The level of professionalism and accuracy demanded by the Massachusetts Supreme Court – rather than the “sum and substance” approximation that now takes place in New York – is easily attainable, should be, and is becoming the expected, rather than the resisted standard by courts, legislatures, police agencies, and perhaps most importantly, by juries. Evidence in a murder case is at least as important, and merits commemoration with at least the same level of accuracy and reliability as we routinely use to preserve our children’s Christmas pageants and birthday parties.