Videotaping Confessions: It's Time

• Author: Edward W. Berg
• Position: Judge Advocate, U.S. Army
• Pages: 253-274

2011] VIDEOTAPING CONFESSIONS 253

VIDEOTAPING CONFESSIONS: IT’S TIME

MAJOR EDWARD W. BERG

I. Introduction

A. Hypothetical

You are the chief of justice at a large Army installation. One of your

trial counsel has just brought you what looks like a confession in a

murder case that happened on the installation last weekend. A few things

immediately grab your attention. First, the accused signed the rights-

waiver form at 0100 and signed the confession at 0930. Second, the

narrative portion of the confession appears short and lacking in detail,

only three paragraphs long.1 Third, the statement’s question and answer

portion between the investigating agent and the accused mostly calls for

“yes” or “no” responses to the elements of the crime.2 When you ask if

the confession was videotaped, you find out it was not.3 When you

inquire why it took over eight hours to get this short confession, the

answer is that the agent used “rapport building techniques”4 for the first

few hours.

 Judge Advocate, U.S. Army. Presently assigned as Brigade Judge Advocate, 4-25th

Airborne Brigade Combat Team, Fort Richardson, Alaska. LL.M., 2010, The Judge

Advocate General’s School, U.S. Army, Charlottesville, Virginia, 2010. This article was

submitted in partial completion of the Master of Laws requirements of the 58th Judge

Advocate Officer Graduate Course.

1 “Narrative portion” refers to the part of the subject’s statement that is his or her own

account of what happened regarding the incident in question. This part of a statement

normally precedes the question and answer portion between the subject and the

investigating agent.

2 While there is nothing legally wrong with this questioning method, it often fails to

develop important facts. For example, instead of asking whether an alleged victim was

“incapacitated,” it would be more helpful to ask questions that uncover facts such as how

much the victim drank; whether the victim slurred her words; whether the victim could

have walked without stumbling; and whether the victim could have driven a car, given

her condition. While the first question calls for a conclusion, the second set of questions

draws out facts so that a judge or panel could make the ultimate conclusion.

3 See infra Part III.B (discussing the fact that there is currently no requirement that

custodial interrogations be videotaped in the Army).

4 See Thomas P. Sullivan, Recording Federal Custodial Interviews, 45 AM. CRIM. L. REV.

1297, 1321 (Fall 2008) (discussing that “rapport building techniques” refers to the

practice whereby government questioners “attempt to put suspects at ease by establishing

a congenial, cooperative relationship in a non-threatening atmosphere, which helps

suspects to relax and talk freely about the events under investigation as well as gently

persuading suspects not to invoke the right to remain silent or to have counsel.”). Id.

254 MILITARY LAW REVIEW [Vol. 207

B. The Issues

While the special agent and the trial counsel are relieved to have this

“confession,” you worry about the gaps. What exactly took place

between 0100 and 0930? Why is there so little paperwork resulting from

the interrogation? Does the defense have a solid basis upon which to

bring a motion to suppress the confession? How will the special agent

fare at a suppression hearing about what happened in those early

morning hours, especially when the hearing is likely months away?5

Furthermore, even if the confession comes into evidence at trial, what

will the fact-finder think about the manner in which the confession was

obtained? Additionally, if the government presents video footage of the

crime scene and other technologically advanced evidence at trial, will it

reflect poorly on the government that the confession was not recorded?6

C. A Way Ahead

One way to mitigate the concerns that arise from the scenario above

would be to have a videotape of the entire custodial interrogation.

Currently, no such policy is mandated across the uniformed services.7

This article will argue that the Department of Defense (DoD) should

adopt a unified policy requiring videotaping custodial interrogations of

felony level crimes by the criminal investigative branches of each

service, i.e. Criminal Investigative Division (CID) for the Army, Naval

Criminal Investigative Service (NCIS) for the Navy and Marine Corps,

and Office of Special Investigations (OSI) for the Air Force.8 This

requirement should extend to recording all aspects of the custodial

interrogation, including the initial rapport building phase, the rights-

warnings under Article 31, Uniform Code of Military Justice (UCMJ),

5 Id. at 1307 (discussing that a law enforcement officer may have difficulty recalling

details of what occurred during a custodial interview when later testifying about those

underlying events, without the benefit of a recording of the interview).

6 Regarding this type of scenario, defense attorney Charlie Gittins has said, “Well, I have

had some fun over the years with agents who didn’t record after establishing that they

had all the equipment available but simply chose not to use it.” Posting of Charlie Gittens

to CAAFlog, http://www.caaflog.com/2009/08/26/air-force-osi-to-record-interrogations/

(Aug. 27, 2009, 14:53 EST).

7 See infra Part III.B.

8 Because the Coast Guard falls under the Department of Homeland Security and not

Department of Defense, this article will not discuss the policies of the Coast Guard

Investigative Service (CGIS) regarding videotaping custodial interrogations.