Why Judges and Juries Should Have Access to Complete Electronic Recordings of Police Interrogations:
Following Illinois's Example

By GEORGE KANABE

Wednesday, Aug. 13, 2003

On July 17, Illinois became the first state to enact a law requiring police interrogations and confessions of murder suspects inside police facilities to be electronically recorded. Signed into law by Governor Rod Blagojevich as part of an effort to reform the state's death penalty system, the Illinois law provides that beginning in two years, failure to audio or video record custodial interrogations from beginning to end will render confessions inadmissible at trial.

Other states should now follow Illinois's lead - and not just in murder cases, but for all serious felony charges.

Confessions play an important role in the criminal justice system. They often lead to plea bargains or convictions in cases that would otherwise be difficult to prosecute. Accordingly, they can save courts, and prosecutor's offices, a lot of time and money.

Nevertheless, a fine line exists between the effective police tactics that can be used to obtain truthful confessions from guilty suspects, and the overzealous tactics that result in false statements of guilt. How can we make sure that interrogators don't step over the line - and that our criminal justice system doesn't convict innocent people?

One solution is to require all interrogations to be electronically recorded, in their entirety, and to make the recording available to the finder of fact. A judge deciding whether or not to suppress evidence of a confession should have that recording. So should a jury considering whether it believes the defendant's alleged confession was genuine.

The Trend Towards the Requirement that Custodial Interrogations Be Recorded

The phenomenon of false confessions has by now been well documented - with repeated revelations of defendants who were convicted largely based on a confession, later turning out to be innocent. This evidence has started a movement in the United States to require all custodial interrogations to be recorded. The recording would start with the reading of the suspect's Miranda rights, and proceed through any confession that was obtained.

For example, in 1985, in Stephan v. State, the Alaska Supreme Court exercised its inherent judicial supervisory power to require that, in places of detention, all custodial interrogations of individuals suspected of any major crime be electronically recorded. The ruling was based on the due process requirement in the state constitution.

Similarly, Minnesota also has a court-imposed rule, based on the 1994 decision in State v. Scales. That decision requires the electronic recording not only of a suspect's confession, but also of the reading of Miranda rights and the questioning leading up to the confession, whenever feasible.

Meanwhile, though they are not legally required to do so, police departments in Florida, New Jersey, California and other states have voluntarily adopted the practice of electronically recording complete interrogations. Abroad, Great Britain, Canada and Australia follow recording guidelines similar to Alaska's and Minnesota's.

Nevertheless, a majority of police departments and law enforcement agencies still are not required to, and have not adopted a practice of, recording custodial interrogations in their entirety. Federal agents are the most blatant example. They use video cameras and sophisticated audio recorders to gather evidence. Yet, inexplicably, the only record of their interviews is typically pen-to-paper.

The Need for the Recording Requirement: Studies on False Confessions

Studies have shown that as many as 80 percent of all suspects turn down their right to have a lawyer present during questioning - with innocent people being more likely to do so. Meanwhile, as many as 23 percent of the people who are exonerated after conviction turn out to have falsely confessed.

The idea of falsely admitting to a crime without being coerced may seem unfathomable to those of us whose understanding of interrogations is derived mainly from episodes of Law and Order. But in fact, numerous false confessions have been documented. Experts indicate that the young, the old, the mentally or emotionally disabled, and those who have a substance abuse problem are most susceptible to aggressive police interrogation tactics, though no individual is immune.

Suspects who initially proclaim their innocence often get the message that denial is not the escape, and they end up looking for an easy way out of the interrogation - sometimes via a false confession. Other suspects may actually stop believing in their own innocence, despite having committed no crime.

This is particularly likely to happen when the interrogator tells the suspect that incriminating evidence has been retrieved that undeniably identifies the suspect as the perpetrator of the crime in question - and when the interrogation is prolonged. (Prolonged interrogations can go on for 14 to 30 hours.)

For all these reasons, maintaining a complete and accurate record of custodial interrogations is necessary, in order to permit the fact finder to examine the confession in context.

Would Required Recording Impede the Ability to Obtain True Confessions?

While these are powerful arguments in favor of recording requirements, there is also an argument against them. This argument holds they would impede investigations, and make the jobs of police officers and prosecutors more difficult.

This is a legitimate concern, for several reasons. The knowledge that statements are being recorded may break the flow of questioning and thereby hinder its effectiveness. Criminal suspects may also become significantly less forthcoming when a recording device is conspicuously present.

In practice, however, the recording of complete interrogations has been found to produce solid evidence and to help, not hinder, the ability to secure convictions against the guilty. Prosecutors have also found that electronic recording, especially video recording, enables them to better assess the State's case and prepare for trial. It provides them with, among other things, information about the suspect's and police officer's demeanor during the interrogation that would otherwise be lost forever.

Recording custodial interrogations has also been found to strengthen cases, and promote guilty pleas in cases where the suspect is, in fact, guilty. It prevents frivolous allegations of misconduct and coercion by agents - and even protects the police from false claims of police brutality. In addition, it allows judges and jurors to see for themselves what actually transpired, thus rendering them more confident in reaching a decision.

Will Mandatory Recording Simply Shift the Legal Battleground?

Currently, defendants often claim their confessions were coerced, or fabricated. Recording will change that - but not entirely. Defendants can still claim they were coerced out of the camera's eye, by promises made in the police car prior to recording, or during a bathroom break. Claims of corruption may also follow interviews in which recording was either simply impossible under the circumstances, or impeded by a technological glitch.

At a minimum, though, electronic recording, according to legal experts, can reduce the scores of legal skirmishes in which defendants and agents dispute exactly what took place prior to and during a confession. In jurisdictions routinely using electronic recording of all custodial events, for example, Miranda issues much less frequently arise at trial - for the recording makes clear exactly if and when the defendant was Mirandized.

Finally, as technology evolves, electronic recording will only become more reliable and useful. For instance, technology that prevents recording devices from being turned on and off will likely soon be available (if it is not already), while automatic time and date stamping is already a standard feature on many recording devices. Soon, new technologies will make it more possible to ensure the authenticity of recordings.

The Benefits of Required Recording Far Outweigh the Potential Pitfalls

One innocent person punished, is one too many. To help prevent such injustice, every reasonable step must be taken to guard against false confessions, including the complete electronic recording of custodial interrogations.

There is no reason that judges and juries should not be able to hear or see for themselves what went on during and before a confession - including the tactics employed by the interrogator, the demeanor and body language of all the parties involved, and so on. Requiring electronic recording of the entire interrogation process would ensure that a simple, clear record of all custodial events is available.

Crafting the legal requirement for a given jurisdiction may be a challenge. The requirement must account for circumstances under which recording is impossible (such as when a suspect refuses to be recorded or when there simply are not recording devices available). It must also answer several questions: Will only current suspects - or also witnesses who may become suspects - be recorded? Will only custodial interrogation - or all interrogation - be recorded?

In addition, the requirement must impose reasonable penalties for violations. One possible rule is to bar a confession from being admitted in court when the violation of the recording rule is substantial in light of the surrounding circumstances.

Nevertheless, as technological limitations become less of an issue, the goal should be to electronically record all interrogations of potential suspects, regardless of their location or custodial status. In this way, we can hope to prevent false confessions, and to ensure that innocent persons are not convicted and imprisoned.


George Kanabe is a second-year student at Fordham Law School.

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