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Recorded interrogations protect defendant’s rights

| Feb 14, 2018 | Criminal Defense

Journalist Robert Draper writes in the current issue of National Geographic about “surveillance creep,” the seemingly unchecked proliferation of closed-circuit cameras by municipalities for law enforcement and security purposes.

According to Draper, New York has 20,000 cameras monitoring public spaces in Manhattan alone. Chicago has deployed 32,000 closed-circuit TVs to help in its fight against a well-publicized homicide epidemic.

Other U.S. cities that do not have Chicago’s crime problem or New York’s history of terrorist attacks are embracing the use of surveillance technology. Houston, a city that as recently as 2005 did not have a single closed-circuit TV in operation, now has 900 in place and another 400 in reserve.

Jameel Jaffer, the founding director of Columbia University’s Knight First Amendment Institute, told Draper we are only starting to grapple with the implications of surveillance creep. “Before we adopt new technologies or before we permit new surveillance forms to entrench themselves in our societies, we should think about what the long-term implications of those surveillance technologies will be,” he says.

One Place Cameras Are Necessary

While increased use of surveillance cameras in public areas is a concern, one place where the use of electronic recording by law enforcement is welcomed – and mandated in Wisconsin for all juveniles and adult felony suspects- is in law enforcement interrogation rooms.

I was privileged to serve on a task force more than a decade ago that proposed a new state requirement that police interrogations of all juveniles and adult felony suspects be recorded. In October 2005, lawmakers passed what became known as the Criminal Justice Reform Act, which did just that.

Up until the law went into effect, unrecorded interrogations were commonly used as evidence in court, and there were often disputes between the police and defendant as to what was said and how it was said. Some departments did voluntarily record interrogations, and these were admissible in court even though it was not required to show the entire police questioning that preceded the admissions of guilt. There was no way to know if they were the product of coercion that had not been recorded.

The Benefits Of Recording Cut Both Ways

Those who have seen the Netflix documentary “Making A Murderer” know the recorded interrogation of then-16-year-old Brendan Dassey is vital to the fight to reverse his conviction. The taped confession made it clear to viewers that Brendan’s statement was the product of detectives who coached him, fed him “facts,” and pushed until he said what they wanted to hear. Brendan’s interrogation came just six months after recording became mandatory.

Some law enforcement agencies have resisted mandatory recording, arguing implementation is logistically difficult and that juries might not accept the interview techniques employed. Yet, technology has proliferated so rapidly in society that recording capability is now simple. And if the techniques police use are unacceptable to juries, then police should abandon them. Juries must decide the facts and a recording of a suspect’s interrogation is unquestionably the best evidence.

In 2005, as our task force worked to shape the law in Wisconsin, there was initially great resistance from law enforcement. However, visiting law enforcement officials who had already implemented mandatory recording in their departments told task force members that recorded interrogations often work in investigators’ favor as well. In addition to curtailing pretrial hearings on the admissibility of statements, recorded interrogations help debunk false accusations of coercion and misconduct against police.

Are Recorded Interrogations Mandated In Your State?

And yet, despite obvious advantages to both police and defendants, 28 states in America do not mandate police interrogation, either by statute or court rule. The federal Department of Justice (including the FBI, DEA and ATF) previously discouraged agents from recording, but in 2014 changed policy and reversed a presumption against recording.

We have written on our blog about the problem of false confessions and why they occur. Simply stated, a recording of every police interrogation – the entire interrogation from beginning to end without breaks in the recording- is the most verifiable means of preventing false confessions from leading to wrongful convictions.

The explosive growth of state-sponsored surveillance around the world proves that law enforcement is ready and willing to record an individual’s public behavior, yet they remain resistant to recording their agents’ private encounters with a citizen in an interrogation room. Requiring in-custody police interrogations to be electronically recorded turns the camera around and protects everyone’s civil liberties.

Citizens in those states which do not mandate recording should demand their legislatures enact such protections immediately. To see if your state is lacking, check the map and list on the NACDL website: https://www.nacdl.org/criminaldefense.aspx?id=31573&libID=31542

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