Electronic recording of custodial interrogations: everybody wins.

• Author: Sullivan, Thomas P.

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.

1. 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. They no longer have to attempt to recall details about the interviews days and weeks later when recollections have faded.

   * In most instances, the ability to obtain confessions and admissions is not affected by recording. Most states permit police to record covertly. But if a suspect realizes a recording is to be made and refuses to cooperate if recorded, the officers simply make a record of the suspect's refusal, and proceed in the "old-fashioned" manner with handwritten notes.

   * Later review of recordings affords officers the ability to retrieve leads and inconsistent statements overlooked during the interviews.

   * Recordings are valuable for training new officers in proper interrogation techniques and for experienced officers to self-evaluate and improve their methods.

   * Public confidence in police practices increases, because recordings demonstrate that officers conducting closed custodial interviews have nothing to hide from public review.

   With respect to the drawbacks of recording, very few officers mentioned cost as a concern. They said that front-end expenses (e.g., equipment, set up, training) were more than offset by saving officers' time in court, reducing motions to suppress, increasing the incidence of guilty pleas, saving defense costs in civil suits based on police coercion and perjury, and avoiding civil judgments based on wrongful convictions traced to false or coerced confessions.

   Trial and reviewing courts often comment on the benefits of an objective record of what occurred at the station. Many courts, while declining to hold that police must record custodial questioning, urge that the practice be adopted. For example, an Indiana reviewing court commented:

   [W]e discern few instances in which law enforcement officers would be justified in failing to record custodial interrogations in places of detention. Disputes regarding the circumstances of an interrogation would be minimized, in that a tape recording preserves undisturbed that which the mind may forget. In turn, the judiciary would be relieved of much of the burden of resolving disputes involving differing recollections of events which occurred. Moreover, the recordings would serve to protect police officers against false allegations that a confession was not obtained voluntarily. Therefore, in light of the slight inconvenience and expense associated with the recordings of custodial interrogations in their entirety, it is strongly recommended, as a matter of sound policy, that law enforcement officers adopt this procedure. (6) An exasperated state trial judge recently told a police witness:

   If you've got audio and videotape there, I think you ought to use it. 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) II. THE PREFERRED SOLUTION: LEGISLATION

   There are three ways in which recording of custodial interrogations may be implemented: by legislation, by action of the jurisdiction's highest court, or by adoption of recording policies by individual law enforcement departments. I believe legislation is the best method because it is inherently more comprehensive. Statutes are more likely to spell out in detail when and where recordings shall be required, the exceptions to the requirement, the consequences of failing to record, how the equipment will be funded and where it will be stored, how officers will be trained, and, where necessary, when recordings may be exempt from applicable eavesdrop/wiretap laws. (8) In contrast, when custodial interrogations are implemented by an action of the court, they have been framed in general mandatory terms, and have not taken into account funding or other practical problems that police may encounter during the recording process. With regard to the adoption of recording policies by individual law enforcement departments, it would take decades to persuade all departments in the United States to adopt voluntary recording policies, and those that did would have widely varying procedures, with no official sanction for noncompliance.

   Thus far, Illinois, Maine, New Mexico, and the District of Columbia, have enacted recording legislation. The Illinois statute, which makes the practice mandatory by July 2005, serves as a model for other legislatures to follow. (9) It provides that any statement made by the accused during a custodial interrogation is presumed inadmissible in a homicide trial, unless the entire interrogation is electronically recorded and accurately preserved. (10) A number of exceptions are included (11); the prosecution has the burden of proving the occurrence of an exception by a preponderance of the evidence. The Illinois Eavesdropping Act was amended to permit the recordings to be made covertly. (12)

   The Maine statute, enacted in 2004, compels the Board of Trustees of the Maine Criminal Justice Academy to establish minimum standards for a law enforcement policy of "digital, electronic, audio, video or other recording of law enforcement interviews of suspects in serious crimes and the preservation of investigative notes and records in such cases." (13) The Academy Board and the Board of Directors of the Maine Chiefs of Police Association have adopted a model policy that requires police to conduct recordings of custodial interrogations in serious felony investigations in police facilities. (14) By June 1, 2005, the chief administrative officers of all Maine law enforcement agencies must certify to the Academy Board that they have adopted policies...