Satisfy the demands of justice: embrace electronic recording of custodial investigative interviews through legislation, agency policy, or court mandate.

Author:Linkins, Julie Renee

Three young black men are picked up at a fast food restaurant in connection with the shooting of a white couple in a nearby park. Under pressure to resolve a highly charged situation, the police inadvertently provide information about the crime to one of the men during the interrogation. Using this information, he confesses and implicates the other two, who steadfastly maintain their innocence. Although the confession will later be proven false, the defendants take highly unfavorable plea agreements. (1)

When disputes over police interviews of suspects arise, few cases include a clear record of what occurred during the interrogation at the police station; thus, they cannot include clear evidence of whether claims against the police are true or false nor whether the rights of the accused have been adequately protected. Arguably, if the parties were to possess such dispositive evidence when considering the interview, the focus could remain on questions of truth and fact regarding the crime, rather than on the actions and procedures followed by law enforcement during the interview. (2)

Similarly, unscrupulous defendants can allege that their rights were violated and, in the absence of any evidence to the contrary, can distract judges, juries, and law enforcers from their duties. As Bernard Weisberg, former general counsel of the Illinois Division of the American Civil Liberties Union wrote, "It is secrecy, not privacy, which accounts for the absence of a reliable record of interrogation proceedings in a police station." (3) Thus, without a reliable record, courts across the country expend vast amounts of time and resources trying to figure out just what occurred in an interrogation room. (4) Police and defendants often become drawn into swearing matches over who said or did what before or during a custodial investigative interview (5) instead of focusing on the substance of the criminal acts at issue. Judges and juries must make tough calls with only fragments of information about complex situations affecting rights guaranteed in the Constitution and affecting people's lives.

This practice seems a poor way to protect rights, investigate crime, or administer justice. Participants in the criminal justice system must ask themselves whether there is a better way to resolve the controversies that arise over statements and actions typically hidden from view in the police interrogation room. For the criminal justice system to work well, all participants, especially the fact finders, should have the best possible information about what took place during an investigative interview.

Therefore, this Note proposes that through legislation, agency policy, or court action the American criminal justice system mandate the electronic recording of all custodial investigative interviews. Part I establishes the rationale for using such measures. Part II addresses legislation as a method of mandating recording, which arguably would ensure uniformity and consistency, as the practice of a few states shows. Congress and the remaining states could emulate the best practices among those states and effect positive change legislatively. Part III presents policy-oriented issues and recommendations that law enforcement agencies could adopt in the absence of legislative action. Already, several hundred agencies independently have instituted recording procedures that protect both the constitutional rights of the accused as well as the investigative and liability interests of the police. Other agencies at the local, state, tribal, and federal levels can and should devise similar policies tailored for their particular working environments. Part IV suggests that courts presented with appropriate fact patterns should not hesitate to mandate the recording of investigative interviews. Alternatively, courts could act independent of case-specific contexts and establish administrative rules governing the admissibility of unrecorded statements. Any of these approaches would represent a vital step towards protecting the rights of the accused and the police, alike, while preserving critical evidence and significantly enhancing the daily operation of our criminal justice system.


    A small but growing body of academic literature, case law, and legislation advocates or requires electronic recording of investigative interviews. Courts have begun to expect law enforcement to use readily available technology to record evidence as important as an interview or confession. In expressing its displeasure with the FBI's failure to record interviews, for example, the United States District Court in South Dakota noted that taping is commonly used by other actors in similar situations, including private investigators, highway patrol officers, psychologists interviewing children, and jailers in larger towns and cities in the state. (6) Indeed, William A. Geller, then associate director of the Police Executive Research Forum, conducted a survey of videotaping practices in local law enforcement agencies in 1990, revealing that police themselves used video technology, at least occasionally, to document crime scenes, record victim testimony, record sobriety tests of drunk driving suspects, conduct surveillance and document undercover operations, document vehicle accident scenes, monitor prisoners, record crime re-enactments by suspects, record eyewitness testimony, record in-progress events from cameras mounted in police vehicles, and document lineups. (7) In addition to the state cases mentioned elsewhere, federal case law shows that at least some district courts are holding federal agents accountable for failure to record investigative interviews. For example, in United States v. Lewis, (8) when DEA agents failed to record the interviews of suspects even though recording equipment was available, motions to suppress arose. The district court found the failure significant in holding that the government failed to meet its burden of proof as to a waiver of rights during the interviews. (9) The court found that the agents' written summary and their memories of the interview were insufficient to establish that they gave the required Miranda warnings in the face of contrary testimony from the defendant. (10) Thus, failure to record can affect the outcome of a case.

    The courts cited above expressed a sentiment that seems likely to become more widespread as recording technology pervades our society: if people from all walks of life in diverse and legally insignificant circumstances (babies' first steps, children playing in the backyard, local sporting events, weddings and anniversaries, or even a trip to the mall) can record their own activities, why should courts allow the state to claim an inability to record its most legally significant activities?

    While the literature and studies often focus on the critical protection of a defendant's fights, recordings can also protect police against false accusations. Logic and experience suggest other benefits will accrue to the quality of investigations in general and to law enforcement's ability to monitor and improve police practices in particular. Moreover, recordings may enable litigants and courts to resolve issues surrounding custodial interviews more efficiently.

    1. Protecting Rights

      Many questions about the protection of the defendant's rights may surround custodial interviews. Some include provision of Miranda warnings, proper invocation or waiver of constitutional rights, and voluntariness.

      The U.S. Supreme Court in 1966 recognized the risks of coercion and distortion inherent in investigative interviews when it established a set of four now-familiar warnings designed to ensure that suspects in custody being questioned by police know that they can remain silent, their statements can be used against them in court, they may consult with an attorney, and they may request appointment of an attorney prior to any questioning if they cannot afford to hire one. (11) These "prophylactic rules" or "procedural safeguards" set forth in Miranda v. Arizona were designed to protect and reinforce the Fifth Amendment right against compulsory self-incrimination. (12) Absent other effective measures to inform the accused of their rights and assure their continuous ability to exercise those rights, the police must give the Miranda warnings prior to in-custody investigative interviews; without such measures or warnings coupled with the knowing, intelligent, and voluntary waiver of rights, the prosecution may not use any statements made by the accused under questioning by the police. (13)

      In developing these rules, the Miranda Court worried about the atmosphere created by interrogations conducted by the police incommunicado, (14) an environment "created for no purpose other than to subjugate the individual to the will of his examiner." (15) Grave concern for the effect of this intimidating practice on "one of our Nation's most cherished principles--that the individual may not be compelled to incriminate himself" (16) led the Court to establish its safeguards for this constitutional right.

      In addition to setting out the required warnings, the Court also specified the burden of production and persuasion for the waiver of constitutional tights:

      Since the State is responsible for establishing the isolated circumstances under which the interrogation takes place and has the only means of making available corroborated evidence of warnings given during incommunicado interrogation, the burden is rightly on its shoulders. (17) The State, then, has a vested interest in providing the court with clear evidence of proper warnings and adequate waiver of rights so it can use whatever statements the defendant made to the police. Currently, in most state and local jurisdictions across the country and in nearly every federal one...

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