Electronic Recording of Interviews and Interrogations
It has long been recognized that a confession is the strongest piece of evidence a prosecutor can produce against a defendant in a court of law. Consequently, any competent defense attorney will attempt to have a confession suppressed by attacking his client’s Miranda waiver or the police interrogation tactics. Historically, these efforts have not proven to be very successful. However, over the last fifteen years there have been a number of well publicized cases in which verified innocent suspects did confess during a police interrogation. The legal tide of credibility has clearly shifted in that a police officer’s testimony is no longer accepted at face value. In an effort to verify what actually occurred during a police interrogation, a number of states have required that, under certain circumstances, police interviews and interrogations must be electronically recorded. As an example, this year the state of Illinois required that all custodial homicide interviews and interrogations be electronically recorded.
While the law enforcement community was initially skeptical about electronic recording, over time procedures were developed to accommodate this new practice. A 2004 survey of investigators from the states of Alaska and Minnesota, which require that all custodial interviews and interrogations be electronically recorded, found that most investigators had favorable experiences with electronic recording. Recognizing these benefits, many law enforcement agencies have taken the initiative to create their own internal policies requiring electronic recording of interviews and interrogations. A recent survey found that 238 of departments in the United States electronically record interviews and interrogations.
Despite the impressive numbers cited in the Sullivan survey, the fact remains that most law enforcement agencies do not electronically record interviews or interrogations. Recent trends across the United States suggest that an increasing number of states will require electronic recording of interviews and interrogations. Would your department be prepared to enact a policy that required all future custodial interviews and interrogations be electronically recorded? Even if your investigators are conducting text-book perfect interviews and interrogations, there are a multitude of other issues a department has to consider with respect to electronic recording. Examples of these issues include:
What is the best camera angle for recording?
Where should the microphone be located?
What recording medium (VHS, DVD) should be used?
What recording equipment is needed?
How should back-up tapes be made and stored?
Should the suspect be notified that a recording is being made?
What procedural changes need to be made to accommodate recording?
How should the investigator describe various interrogation techniques in court?
Over the past several years, two of our staff (Dave Buckley and Brian Jayne) have researched electronic recording practices among police agencies. In addition to reviewing literature, prosecutors were interviewed to gain insight on their experience with electronically recorded interrogations, inter-department policies and budgets relating to electronic recording were reviewed and experts who installed recording equipment for police departments were interviewed. All of this information is compiled in a book titled Electronic Recording of Interrogations.
We believe that if done properly, electronic recording of interviews and interrogations can serve to maintain the integrity of confession evidence in a court of law. However, the same video tape that refutes the defendant’s claim that he was never advised of his Miranda rights and that the investigator punched him in the stomach can also be used to argue that the investigator offered an implied promise of leniency or threatened the suspect with inevitable consequences. In other words, the electronic recording is a double edged sword that requires investigators to not only know which interrogation practices and techniques are considered proper or improper, but also to be able to educate a court during testimony to explain why a particular statement was made and why the statement would not be apt to cause an innocent person to confess.