Police Experiences with Recording Custodial Interrogations
Sullivan, Thomas P., Judicature
Police, prosecutors, and defense lawyers often become embroiled in disputes as to what may have occurred when suspects are brought to a police station for questioning and no recording is made of the interview. For example, did the police give the Miranda warnings; did the suspect ask for a lawyer; did the police use coercive tactics; did the suspect confess or make false exculpatory statements or damaging admissions?
Time and again, judges and juries are called upon to hear testimony as to what occurred behind closed doors in police stations, and to evaluate conflicting statements by police, defendants, family members, and sometimes the lawyers. The stakes are high for both sides. If a defendant's alleged admissions or confession are suppressed or discredited, the state's case is often impaired or decimated. Conversely, if the police version is accepted, the defendant's risk of being convicted is increased.
By using audio and/or video equipment to record everything that occurs during custodial interviews, prosecutors and law enforcement agencies have the ability to put an end to these disputes and remove the risk of losing critical evidence. But the vast majority of law enforcement agencies in the United States do not record custodial interrogations (some record suspects' final statements or confessions following unrecorded questioning), because detectives and their supervisors fear that recordings will interfere with custodial interviews, are too costly, etc.
Change is in the wind from both within and without the law enforcement community. Pressure is building to require police to make complete electronic recordings when they question suspects who are in custody in major felony investigations. For example:
* In 2003, pursuant to the recommendation of the Illinois Governor's Commission on Capital Punishment, the Illinois legislature enacted a statute providing that unrecorded custodial interrogations in homicide investigations are presumed inadmissible unless a statutory exception applies.1 Police and sheriff's departments in Illinois are preparing to begin recording when the law takes effect in summer 2005.
* Bills have been introduced in a number of other states that would mandate electronic recordings of custodial interviews in felony investigations.
* In May 2004, the Supreme Court of New Jersey appointed "a committee to examine and make recommendations on the use of electronic audio and video recording of custodial interrogations," in order for the court "to evaluate fully the protections that electronic recordation affords to both the state and to criminal defendants. [The committee's] inquiry should include whether to encourage electronic recordation through the use of a presumption against admissibility of a nonrecorded statement, or otherwise." The court observed, "We perceive benefits to all involved if custodial interrogations are recorded electronically."2 Without awaiting the results of the committee's work, one prosecutor has arranged for the 50plus police departments in his county to begin recording custodial questioning in homicide investigations starting January 1, 2005.
* 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 they may conclude from the failure to record that the state has not met its burden of proof that the statement was voluntary. …