Electronic Recording of Custodial Interrogations: Everybody Wins
Sullivan, Thomas P., Journal of Criminal Law and Criminology
According to Alan Harris, a veteran prosecutor in Minnesota, it was "the best thing we've ever had rammed down our throats." (1) He was referring to a practice that the Minnesota Supreme Court imposed on the state's police officers more than a decade ago--the electronic recording of custodial interrogations in felony investigations from the time that the Miranda warnings are given until the end of the interviews. (2)
Harris is hardly alone in his opinion. In the past few years, the many benefits of complete audio or video recording of custodial interviews have become increasingly apparent to all parties. For suspects, recordings expose abusive tactics and falsehoods about confessions. For law enforcement officials, recordings spare them from defending unfair charges of using heavy-handed methods or misstating what occurred. Furthermore, prosecutors and defense lawyers no longer engage in courtroom disputes as to what took place: the interviews may contain exculpatory statements favorable to the defense, or admissions which strengthen the prosecution's case, but in either event, the record is clear and conclusive. Trial judges and reviewing courts no longer have to evaluate conflicting versions of what happened. Unlike the customary interview during which the police make handwritten notes and later prepare a typewritten report, electronic recordings contain a permanent record of the event, leaving no room for dispute as to what officers and suspects said and did.
Historically, the absence of audio or video recordings has led to widespread problems arising from disputes over what was said and done during custodial interrogations. I began focusing on this matter when, as Co-Chair of Illinois Governor George H. Ryan's Commission on Capital Punishment, I led a subcommittee charged with making recommendations to the Commission about police investigatory practices. The subcommittee and Commission ultimately recommended that all questioning of homicide suspects in custody in police facilities be recorded electronically. (3) The General Assembly acted on the proposal, making Illinois the first state to require complete custodial recordings by statute. (4)
During the course of the subcommittee's investigation, I discovered that a number of police agencies were already recording custodial interrogations. After the Commission concluded its work in 2002, my associates and I set out to locate these departments and learn about their experiences. We now know of more than 300 police and sheriff's departments in forty-three states--plus all departments in Alaska and Minnesota--that record full custodial interviews in various kinds of felony investigations, all of whom enthusiastically support this practice. (5)
This article will summarize what our inquiries have revealed and explain why I conclude that recording custodial interrogations is of great importance, and is best instituted through legislation.
I. OUR FINDINGS: POLICE EXPERIENCES WITH RECORDING CUSTODIAL INTERROGATIONS
We located departments in the largest and smallest cities in the United States that routinely record full custodial interviews. The following points outline what we were repeatedly told by police officers, sheriff deputies and their supervisors, and veteran prosecutors:
* Recording custodial interviews is a tremendous benefit to the criminal justice system. A permanent record is created of what was said and done, how suspects acted, and how officers treated suspects. Officers are no longer subjected to unwarranted allegations about abusive conduct; those who may be inclined to use improper tactics cannot do so because their actions and words are being recorded.
* Voluntary admissions and confessions are indisputable. Defense motions to suppress based on alleged coercion and abuse drop off dramatically, and the few that are filed are easily resolved by the recording.
* Without the need to make detailed notes, officers are better able to concentrate on suspects' demeanors and statements. …