Beyond Police Compliance With Electronic Recording of Interrogation Legislation: Toward Error Reduction

• Published date: 01 May 2019
• Date: 01 May 2019
• Author: Marvin Zalman,Laura L. Rubino,Brad Smith
• DOI: 10.1177/0887403417718241
• Subject Matter: Articles

https://doi.org/10.1177/0887403417718241

Criminal Justice Policy Review

2019, Vol. 30(4) 627 –655

© The Author(s) 2017

Article reuse guidelines:

sagepub.com/journals-permissions

DOI: 10.1177/0887403417718241

journals.sagepub.com/home/cjp

Article

Beyond Police Compliance

With Electronic Recording

of Interrogation Legislation:

Toward Error Reduction

Marvin Zalman1, Laura L. Rubino2, and Brad Smith1

Abstract

Video recording police interrogations is a widespread reform designed to reduce

false confessions. An exploratory survey of Michigan police departments following

the adoption of a video recording law indicates that the policy is uniformly

followed. A significant number of agencies go beyond the law’s requirements by

video recording in the investigation of all crimes and not only major felonies. Most

recording captures both the interrogator and suspect. Prior to passage, half of the

agencies supported the law and half were neutral. The law stimulated a quarter of

the agencies to video record interrogations. A literature review and policy analysis

suggests that video recording is a necessary but not a sufficient reform to reduce

false confessions and wrongful convictions. Progress toward less confrontational

investigative interviewing, used in several European countries and gaining a foothold

in the United States, is recommended.

Keywords

interrogation, video recording, false confessions, innocence policies

On March 28, 2013, Michigan Act No. 479 of 2012 went into effect, providing that “A

law enforcement official interrogating an individual in custodial detention regarding

the individual’s involvement in the commission of a major felony shall make a time-

stamped, audiovisual recording of the entire interrogation” (Act 479, 2012, Sec. 8;

1Wayne State University, Detroit, MI, USA

2University of Cincinnati, OH, USA

Corresponding Author:

Marvin Zalman, Criminal Justice Department, Wayne State University, Detroit, MI 48202, USA.

Email: aa1887@wayne.edu

718241CJPXXX10.1177/0887403417718241Criminal Justice Policy ReviewZalman et al.

research-article2017

628 Criminal Justice Policy Review 30(4)

Heinlin, 2013). This law was not unique. When it passed, Michigan joined at least 10

other states and the District of Columbia requiring electronic recording of police inter-

rogations by statute or court decision. In addition, hundreds of police departments

across the nation had voluntarily adopted electronic recording by department policy.

Several military branches and Intelligence services adopted electronic recording of

detainees; the prestigious Uniform Law Commission (ULC) adopted a model statute

for state legislatures to emulate (Taslitz, 2012).

Electronically recording interrogations, advocated for a century, is a popular crimi-

nal justice reform that “has become pervasive nationwide” (Wynbrandt, 2016, p. 560).

It was opposed by law enforcement until the reality of false confessions became better

known (Leo, 2008, pp. 291-296; Trainum, 2016). By yearend 2016, at least 14 states

and the District of Columbia joined the electronic recording bandwagon by legislation,

another seven by court action, and a reported 1,000 police jurisdictions voluntarily

implemented recording (Innocence Project, 2016).1 The states that now require elec-

tronic recording are found in all regions of the country except (with one exception) the

South. New York and California have not adopted this reform statewide. Yet New York

authorities reported that “341 of the state’s 509 police agencies are recording suspect

interviews in some crimes” (Innocence Project News, 2012) and 42 California depart-

ments video record interrogations (Sullivan, 2010). Simply requiring electronic

recording, however, does not eliminate all policy issues. First, legislation can increase

or reduce pressure on police departments to rigorously follow requirements by allow-

ing exceptions and by the firmness of sanctions imposed for noncompliance.

Furthermore, the test is not that legislation is written but that it is followed in practice.

Finally, even though electronic recording is a necessary reform, it may not be suffi-

cient to prevent false confessions or wrongful convictions. Embarrassing failures to

record in two high profile New York Police Department (NYPD) investigations

emphasize the need for effective and not just paper reform.2

The present exploratory survey research study explores Michigan law enforcement

agencies’ policies and practices related to audiovisual recording during custodial inter-

rogations soon after legislation mandated the practice. We sought to determine whether

the agencies conducted audiovisual recordings of custodial interrogations, whether

they had formal written policies related to recording of custodial interrogations, their

level of awareness of and support for Act 479 prior to passage, and how Act 479

affected practices and policies. This study begins to move analysis of law enforcement

interrogation reform from the rule-adoption phase to the practice-and-attitude-change

stage, and is placed in the context of wrongful conviction, psychology, law, and public

policy studies.

Literature Review and Analysis

Before the 1990s, electronic recording of police interrogations was seen as a potential

improvement of police efficiency and legitimacy; preventing false convictions was

only one goal among others (Geller, 1992). The growing realization that false confes-

sions occur regularly and can contribute to wrongful convictions made the policy of