December 2004, Page 24

The Police Experience: Recording Custodial Interrogations
By Thomas P. Sullivan

Asco-chair of Illinois Governor George H. Ryan’s Commission on Capital Punishment, I led the subcommittee charged with making recommendations to the full commission about police investigatory practices.  We found a major problem concerning disputes as to what occurred when suspects under arrest are brought to a police station for questioning. For example, (1) did the police give the Miranda warnings; (2) did the defendant ask for lawyer; (3) did the police use coercive tactics; and (4) did the defendant confess, made false exculpatory statements or damaging admissions?  Time and again, in courts throughout the United States, judges must hear and evaluate differing versions of what occurred behind closed doors in police stations.

The governor’s commission recommended that all questioning of homicide suspects in custody in police facilities be electronically recorded.  The legislature acted on this proposal: Illinois became the first state to statutorily require that custodial interrogations in homicide investigations be recorded.1

Literature on this subject has an invariable theme: recording custodial questioning is necessary to prevent police from using coercive tactics during unrecorded interrogations and misstating what the suspect said.2 I believe, however, that with few exceptions our police do not use illegal tactics or commit perjury. My associates and I set out to learn the experiences of police and sheriff’s departments that use electronic recordings in their interview rooms.3 We also contacted prosecutors to obtain their views. We did not use normal survey techniques. With few exceptions, we contacted departments we were informed were recording custodial interrogations. When this article was originally published (www.jenner.com/policestudy), we had spoken with over 230 police agencies in 38 states that record custodial interviews of suspects in felony agencies.  We have now identified over 260 in 41 states. The practice of recording custodial interrogations is undoubtedly followed by many other departments that our efforts failed to identify.
Variations in Recording Practices
We found significant differences among the various recording agencies. The departments are diverse in size, serving communities ranging from small suburban and rural towns to many of our largest cities. Most of the departments have no written regulations or guidelines that govern when and how recordings are to be conducted. Most record in “major” or “serious” felony investigations, such as those involving homicide, sexual assault, armed robbery, and other crimes against persons and involving weapons. However, most leave the recording decision to the discretion of the officer in charge, although recordings are customarily made by the detectives in cases covered by discretionary policies.

The departments use either audio and/or video recording devices to record interviews of arrested persons in a police facility from the Miranda warnings on, with no intentional breaks or omissions. We did not include departments that conduct unrecorded interviews followed by recorded confessions, or recordings made outside a police station or lockup.

State eavesdropping laws govern whether suspects must be told they are being recorded. Most states permit police to record without informing suspects (“one-party consent”), while some require the suspects’ consent (“two-party consent”). Some departments in one-party consent states nevertheless inform suspects, and of course sophisticated suspects and repeat offenders may be aware without being told.

Benefits of Recording for Police Officers and Prosecutors
A contemporaneous electronic record of suspect interviews has proven to be an efficient and powerful law enforcement tool. Recordings create a permanent record of exactly what occurred and prevent disputes about the treatment of suspects and what was said and done. Police are not called upon to paraphrase statements or try later to describe suspects’ words, actions and attitudes. An electronic record made in the station interview room is law enforcement’s version of instant replay.

• Virtually every officer with whom we spoke, having tried custodial recordings, enthusiastically favored the practice. For example:4

San Diego, California, Police Department — Recording is a great investigative device, which “eliminates the problem of suspects changing their stories when we get to court. . . . It marries them to their stories. I’ve never met a detective who didn’t like it.”

Bozeman, Montana, Police Department — One video showed a suspect giggling when he described beating children. Our experience is 100 percent positive.
Clackamas County, Oregon, Sheriff’s Office3 — “It’s been my experience that a video is worth ten thousand words.”

Houston, Texas, Police Department — “I love it — it’s the way to go. We can’t be accused of changing what the suspect said. It’s a great law enforcement tool, the best evidence.”

St. Paul, Minnesota, Police Department — The judge and jury experience the full oral and visual impact of a suspect’s changed story, rather than having an officer try to capture the contradictions in a few sentences.

Cobb County, Georgia, Police Department — Perspectives about what occurred during interrogations are “incredibly unreliable” when compared to what is shown on the tapes.

• Recordings dramatically reduce the number of defense motions to suppress statements and confessions. The record is there for defense lawyers to see and evaluate: Officers are spared having to endure hostile cross examinations about coercion, trickery and perjury.

Denver, Colorado, Police Department — The department’s regulations state, “Claims of improper conduct by the police, such as brutality, intimidation, threats, promises or the failure to advise of constitutional rights can be judged first hand by the viewer. . . . The videotape is also available for the appeals process and Supreme Court review.”

Mesa, Arizona, Police Department — “The act of recording automatically brings with it the air of disclosure and avoids accusations of impropriety during the interview.”

El Dorado County, California, Sheriff’s Office — “A motion to suppress is a swearing match between the suspect’s word and the officer’s word. Now we play the tape and the judge says, ‘It’s right there! Motion denied.’”

International Association of Chiefs of Police5 — “[W]hen asked about the effectiveness of CCTV [closed circuit television], the overall response [from more than 200 law enforcement agencies] indicates that there have been marked improvements in police operations: fewer frivolous lawsuits because defendants are unable to contradict taped evidence. . .protection against claims of abuse or coercion during interrogation procedures, [and] reduced court time for officers because defendants are unwilling to dispute charges when faced with taped evidence.”


• Recordings permit detectives to focus on suspects rather than taking notes, which distracts both officers and suspects.

• Gilbert, Arizona, Police Department — “In addition to the detective not having the distractions of note- taking, the absence of notes frequently makes the subjects more at ease and does not alert them to key phrases which may be of special interest at a later time.”

Omaha, Nebraska, Police Department — “It works out great due to the fact you do not have to write anything down, which can make the suspect nervous and clam up . . . they clam up more when you write a lot of notes during the interview.”

Corpus Christi, Texas, Police Department — “Officers have found that they especially like the recording process because it is much faster and easier for them to simply record a suspect’s interview, rather than the old method of interviewing the suspect, writing down his version of events, having the writing typed up and having the typing signed by the suspect.”

• Later review of recordings often reveals previously overlooked inconsistencies and evasive conduct.

Stockton, California, Police Department — During interviews the officers often become fixated on the facts and overlook subtle changes in the suspect’s story, or his eye and body movements, which they observe when tapes are reviewed.

• Full custodial recordings make it unnecessary for detectives to struggle to recall details when writing reports or testifying about past interviews.

Savannah, Georgia, Police Department — Detectives frequently prepare reports or testify weeks or months after the interviews, and in the interim they have conducted many other interviews. Recollections of details fades. Recordings allow officers to be accurate and complete.

• Prosecutors encourage complete recordings because they reinforce their cases, resulting in more guilty pleas, and greater prosecutional bargaining power in sentencing. In the cases that go to trial, recordings are readily accepted by judges and juries.
San Diego, California, Prosecutor — “Consider . . . the immeasurable value of giving the eventual jury the opportunity to hear, if not see, the defendant before he has thought to temper his attitude, clean up his language . . . and otherwise soften his commonly offensive physical appearance, and you begin to appreciate the tremendous value of a taped interview. . . .”


Hennepin County, Minnesota, State Attorney — “A videotaped interrogation . . . provides irrefutable evidence that we can use with a jury in the courtroom.”

• Many trial and appellate judges, dismayed at repeatedly being required to review transcripts of conflicting versions of what took place during unrecorded custodial questioning, have urged law enforcement officers to make recordings when feasible.6

An exasperated trial judge recently told a police witness: “I don’t know why I have to sit here and sort through the credibility of what was said in these interviews when there’s a perfect device available to resolve that and eliminate any discussion about it.”7

In May 2004, the Supreme Court of New Jersey wrote, “we perceive benefits to all involved if custodial interrogations are recorded electronically.” The court appointed a committee “to examine and make recommendations on the use of electronic audio and video recording of custodial  interrogations so that the court may “evaluate fully the protections that electronic recordation affords both to the state and to the criminal defendants.”8

In August 2004, the Supreme Judicial Court of Massachusetts observed, “Despite initial reluctance on the part of law enforcement personnel, actual experience with recording of interrogations has confirmed that the benefits expected from the procedure have indeed materialized, and most of those benefits ultimately inure to the prosecution, not to the defendant.” The court ruled that if unrecorded statements are offered into evidence, the jury should be instructed that “the state’s highest court has expressed a preference that [custodial] interrogations should be recorded whenever practicable.” If the defendant denies the statement was made voluntarily, the jury must be instructed that it may conclude from the failure to record that the state has not met its burden of proof that the statement was voluntary.9 

• We heard reports of initial negative reactions to recording, and how experience changed these attitudes. Detectives with reservations became solid supporters after receiving training and observing firsthand the benefits of an indisputable record.

Anchorage, Alaska, Police Department — Many detectives were skeptical when told that they must record, but after techniques were taught and positive results obtained, recordings became part of everyday station routine. “Recordings . . . have proven beneficial to law enforcement, and ease public concern about how our officers treat people who are in police custody.”

Stockton, California, Police Department — We observed the same kind of apprehension when cameras were put in patrol cars. Now the recordings are routine and accepted.
Broward County, Florida, Sheriff’s Office — A 17-year detective: “Initially I was very apprehensive, but after observing and being involved in interrogations I see how the use of video is much better than the old fashioned method. . . it has fostered new techniques. At the beginning it was somewhat intimidating, but once you become accustomed to the procedure it is second nature.”

• Many experienced officers said they would not consider returning to non-recorded sessions, and expressed surprise when told that most police in the United States do not record in serious felony investigations.

Juneau, Alaska, Police Department — “I can’t understand why every department doesn’t record.”

Maricopa County, Arizona, Sheriff’s Office — “I’m surprised there are any police agencies that do not make recordings in serious cases. Every detective should want to have a record made of his questioning sessions.”

Hobbs, New Mexico, Police Department — “I find it hard to believe that all police do not record.”

• Recordings deter officers who might engage in improper tactics or misstate what was said or done by the suspect.

Kentwood, Michigan, Police Department — “As the investigator, it keeps you in check knowing the video may be seen by a judge or jury.”

• Another benefit is increased public confidence and approval of police practices.
El Paso County, Colorado, Sheriff’s Office — Recording “improves the professional image of the police in the eyes of the public. They see the fallacies shown on television are not what happens in real life.”

• Recordings are useful in teaching interrogation techniques to detectives.

Mesa, Arizona, Police Department — “Electronic recording of custodial interrogations has actually improved our profession and has raised our level of sophistication in interview and interrogation techniques.”

Coeur d’Alene, Idaho, Police Department — “There is no better training technique than to watch and review your interrogation.”

* * *

A number of departments record suspects’ final statements or confessions but not the preceding questioning. While it is debatable whether this is better than having no recording, the information we received in our survey indicates that for several reasons this practice is clearly inferior to recording the entire interrogation:

• Detectives remain subject to challenges regarding what was said and done during the initial unrecorded questioning, which usually lasts far longer than the final recorded statement.

• We were repeatedly told that when detectives review recordings they often discover significant matters they overlooked during the sessions.

• Recordings have proven to be of great benefit for training and self-evaluation.

* * *

Law enforcement personnel who oppose recording custodial interviews speculate about hypothetical problems they have never encountered because they haven’t given recordings a try. Those who have recorded for years do not express similar misgivings. Experienced officers from all parts of the United States support recording custodial interrogations in felony investigations from the time the Miranda warnings are given until the suspect leaves the room.10



Recordings Do Not Affect the Ability to Obtain Cooperation, Admissions and Confessions
The most common objection to recording custodial interviews is that suspects will “clam up” and refuse to cooperate, resulting in the loss of damaging admissions, false exculpatory statements and confessions. Numerous veteran detectives have found these fears unfounded:

Most states permit covert recording. Suspects who do not think they are being recorded obviously will not be affected. This applies to most custodial interrogations.

There are times when suspects know or believe that interviews are recorded. A few states require that suspects be told and prior consent obtained, and even in one-party consent states suspects may be informed or realize their interviews are being recorded. However, research by respected organizations confirms that suspects’ knowledge usually is not an impediment to obtaining cooperation. In a research paper entitled “Policy Review,” published in 1998 by the International Association of Chiefs of Police (“IACP”) and the National Law Enforcement Policy Center (“NLEPC”)11 (“1998 Policy Review”), the author concluded: “There is little conclusive evidence to show that the use of videotape has any significant effect on the willingness of suspects to talk. While some are willing to talk or even play to the camera, others are reluctant. But the majority of agencies that videotape found that they were able to get more incriminating information from suspects on tape than they were in traditional interrogations.”

Most detectives we spoke with concur: suspects’ knowledge or belief that interviews are to be recorded is not a hindrance, because when they get underway any initial hesitation fades and suspects focus on the subject under decision. But if a suspect balks because a recording will be made and is reluctant to proceed, the solution is simple: if necessary to obtain cooperation, stop the recording device and proceed with the interview with handwritten notes. 12


* * *

We were told that some detectives oppose recording interrogations because they believe judges and juries may be offended if they heard or saw their interrogation techniques (e.g., shouting at suspects; using foul language and street talk; suggesting leniency; expressing sympathy for suspects; blaming victims; falsely asserting that incriminating evidence has been obtained). Departments that adopt recordings usually provide their detectives’ training in acceptable techniques. They have found that judges and juries understand that devious tactics are sometimes needed to induce suspects to confess. In any event, officers take an oath to give complete and truthful testimony. Candid descriptions of what occurred during custodial interrogations lend strong support to officers’ credibility, while evasions and fabrications undermine confidence in their testimony and put their careers at risk.


The Relative Costs and Savings Associated with Recording
We spoke with very few officers who mentioned cost as a burden; none said cost warranted abandoning recordings. While many believe that, whatever the cost, full custodial recordings should be made because they help convict the guilty and avoid convicting the innocent, it is nevertheless instructive to compare expenses with savings.

Expenses include purchase of equipment; restructuring interview facilities; training personnel in equipment use and interrogation techniques; salaries of equipment operators and transcribers; tape and disc storage; and the time and expense of police and prosecutors viewing or listening to playbacks and then preparing excerpts and making copies.

Cost savings and related benefits include no need to prepare reports from handwritten notes, which risks important omissions; protection against claims of coercion and perjury; saving time and costs of hearings about what occurred during interrogations; stronger prosecution evidence resulting in more pleas and guilty verdicts; reduction in risk of innocent persons being convicted and guilty persons acquitted; stronger prosecution records on appeal; reduction in post-conviction claims of false confessions and wrongful convictions; avoidance of investigations into charges of police misconduct and civil damage awards; and deterrent effect on officers who might use improper tactics or misstate what suspects said or did.

Most costs come on the front end and diminish when equipment and facilities are in place and training given. Savings continue as long as recordings continue. The IACP survey cited above states (p. 6) “CCTV becomes cost effective as its use increases; the videotape cost offsets litigation and settlement costs.”

 

Safety Valves for
When Things Go Wrong
Glitches will inevitably occur: the operator may forget to turn the machine on, it may not operate properly, the tape may run out, etc. Although only a handful of those with whom we spoke mentioned this as a concern, nevertheless, legislation, court orders and police regulations should provide that recording is excused if the failure to record was due to inadvertent error or oversight and not the intentional conduct of law enforcement personnel.13



Past Events in Real Time

Law enforcement agencies and detectives have traditionally embraced improved technology for investigating and solving crimes. Today, we routinely use recordings to record traffic stops, solve disputes in sports events, and memorialize telephone calls, business meetings and conferences, births, birthdays, weddings, holidays and vacations. Recordings enable us to observe past events in real-time, yielding a far more accurate and complete understanding of what occurred than oral recountings. These reasons apply with equal force to the questioning of suspects in police custody. Recording custodial interrogations has been a long time coming, but as shown by my informal survey, the practice has been adopted by a significant number of law enforcement agencies throughout the country, and has proven to be a wise and effective police practice. Jurors are now coming to expect recordings when questioning takes place in police station interview rooms. When recordings are not made, defense lawyers are quick to argue that unfavorable inferences should be drawn. Two recently issued reports of well respected organizations have endorsed the practice:

• The IACP-NLEPC 1998 Policy Review concludes: “ . . .on the whole, videotape appears to be a valuable investigative resource when structured through sound policies and procedures. Videotape in these contexts tends to protect the rights of defendants while ensuring a factual and often fair presentation of evidence and criminal liability. It is a persuasive tool for prosecutors and juries alike.
In 2003, John E. Reid & Associates, Inc. commissioned a survey of officers in Alaska and Minnesota who attended a Reid training seminar to determine their experiences with recording custodial interviews. The survey concluded: “This reform in interviewing and interrogation practices suggests that the overall benefit of electronic recording in custodial cases is not only feasible, but may have an overall benefit to the criminal justice system. In an era where academicians generalize from laboratory studies and use anecdotal accounts to support claims that police routinely elicit false confessions, electronic recordings may be the most effective means to dispel these unsupported notions.”14

Recordings benefit law enforcement officers, suspects, prosecutors, juries, trial and reviewing court judges, and the search for truth in our justice system. Legislatures, courts and law enforcement agencies — state and federal alike — should consider requiring that all in-custody interviews in major felony investigations be recorded from the Miranda warnings to the conclusion.

Notes
1. 725 ILCS 5/103-2.1; 705 ILCS 405/5 - 401.5; 720 ILCS 5/14-3(k). The supreme courts of Alaska and Minnesota require recording of custodial questioning. Stephan v. State, 711 P.2d 1156, 1158 (Alaska 1985); State v. Scales, 518 N.W.2d 587, 592 (Minn. 1994).

2. See, e.g., Steven A. Drizin and Beth A. Colgan, Let the Cameras Roll: Mandatory Videotaping of Interrogations is the Solution to Illinois’ Problem False Confessions, 32 Loy. U. Chi. L.J. 337, 345-78 (2001); Gail Johnson, False Confessions and Fundamental Fairness: The Need For Electronic Recording of Custodial Interrogations, 6 B.U. Pub. Int. L.J. 719, 735-41 (1997); Wayne T. Westling, Something is Rotten in the Interrogation Room: Let’s Try Video Oversight, 34 J. Marshall L. Rev. 537, 547-52 (2001).

3. My thanks for their assistance to my associates and staff at Jenner & Block: Zachary V. Moen, Lauren E. Moy, Karen V. Newbury, Syed Mohsin Reza, Alexandra E. Shea, Jo Stafford, Laura A. Thomas, Wade A. Thomson, Andrew W. Vail and Hillary A. Victor.

4. I have used just a few representative examples. The words within quotation marks are those of law enforcement personnel; the remainder contains the essence of what we were told. Additional quotes are contained in the originally published version and in my files.

5. Int’l Ass’n of Chiefs of Police, Executive Brief: The Use of CCTV/Video Cameras in Law Enforcement 5-6 (March 2001).

6 See, e.g., People v. Raibon, 843 P.2d 46, 49 (Colo. Ct. App. 1992); State v. Crail, 97 Haw. 170, 179, 35 P.3d 197, 206 (2001); Stoker v. State, 692 N.E.2d 1386, 1390 (Ind. Ct. App. 1998); State v. Worrall, 293 Mont. 439, 453-454, 976 P.2d 968, 977 (1999); Order entered by District Judge Charles B. Kornmann in United States v. Azure, No. CR 99-30077, 1999 WL 33218402, at *1 (D.S.D. Oct. 19, 1999) (criticizing FBI agents’ repeated failure to record custodial interviews).

7. Tr. of motion to suppress hearing at 72, United States v. Bland, No. 1: 02-CR-93 (N.D. Ind. Dec. 13, 2002).

8. State v. Cook, 179 N.J. 533, 847 A.2d 530 (2004)

9. Commonwealth v. DeGiambattista, 442 Mass. 423, 813 N.E.2d 516 (2004)

10. Departments in the United Kingdom (England, Wales, Scotland and Northern Ireland), Ireland, Canada, Australia and New Zealand record custodial interviews in serious felony investigations, and echo these favorable endorsements.

11. In 1987, the IACP entered into an agreement with the U.S. Justice Department Bureau of Justice Assistance to establish the NLEPC, whose objective is to assist U.S. law enforcement agencies in developing and refining law enforcement policy.

12.The courts in Alaska and Minnesota and the new Illinois statute excuse recording if the suspect objects. Similar exceptions are contained in regulations adopted by various departments.

13. Courts in Alaska and Minnesota have upheld the admissibility of statements made when no operative recording device was available, when by mistake no recording was made, and when the recording was inadvertently erased or destroyed. State v. Schroeder, 560 N.W.2d 739, 740-41 (Minn. Ct. App. 1997); State v. Miller, 573 N.W.2d 661, 674-75 (Minn. 1998); George v. State, 836 P.2d 960, 962 (Alaska Ct. App. 1992); Bodnar v. Anchorage, No. A-7763, 2001 WL 1477922, at *2 (Alaska Ct. App. Nov. 21, 2001); Bright v. State, 826 P.2d 765, 773-74 (Alaska Ct. App. 1992).

14. Brian C. Jayne, et al., Empirical Experiences of Required Electronic Recording of Interviews and Interrogations on Investigators’ Practices and Case Outcomes 9 (2003).  n
In a comment  letter to the Bureau of  Prisons  Office of  General Counsel – Rules Unit, NACDL President Barry Scheck emphatically states, “The placement opportunities for convicted criminal defendants sentenced to terms of imprisonment is a major concern for NACDL’s members, as it profoundly affects both our individual clients and their families. Accordingly, NACDL respectfully opposes the proposed modification to the Federal Bureau of  Prisons’ policies and rules governing the use of Community Corrections Centers as places of imprisonment, either for purposes of direct designation following sentencing or as a placement option for those nearing the end of their time in custody, to the extent the proposal undermines the Bureau’s obligations to make individualized, discretionary, prisoner-specific designations.”

The notice filed with respect to the proposed community confinement rule change, BOP Docket No. 1127-P, advances several considerations as “most significant,” all  of which are included in the full text of the letter found on the NACDL Web site at  nacdl.org under “Prison Reform.”

NACDL believes that BOP should revert to its pre-December 2002 Community Corrections Center policy, making only those changes necessary to eliminate unwarranted disparity, while leaving intact the opportunity for placement at any portion, or for all, of a prisoner’s sentence based on that prisoner’s individual characteristics and needs and taking into account any applicable judicial recommendation.


National Association of Criminal Defense Lawyers (NACDL)
1150 18th St., NW, Suite 950, Washington, DC 20036
(202) 872-8600 • Fax (202) 872-8690 • assist@nacdl.org