By John M. (Jack) Collins, General Counsel, Massachusetts Chiefs of Police Association, Shrewsbury, Massachusetts
olice interrogations, especially those that produce incriminating evidence or even a confession, may need to be recorded in order to withstand increased judicial or legislative scrutiny in the coming years. Courts in two states, Alaska and Minnesota, have man dated the recording of interrogations by use of the exclusionary rule.1 Three states and the District of Columbia have, by legislation, imposed a recording requirement for certain types of cases and interrogations.2 Legislation is pending in at least 18 other states and the District of Columbia requiring some or all such interrogations to be recorded. The Massachusetts courts imposed a requirement that stops short of excluding all unrecorded interrogations.3 But defendants in that state are entitled to a jury instruction that casts significant doubt on a statement’s credibility or the voluntariness of any confession.
Judicially imposed rules often require years of litigation before their requirements are clearly understood. Some states, such as New Jersey, have opted for a committee or more broad-based rule-making approach.4 Representatives of the prosecution, defense, and law enforcement communities and others are convened to help draft a more workable rule. This is similar to the legislative process, where public hearings and studies are often involved.
Courts look to recordings as one way to reduce judicial workload, while at the same time gaining a more accurate picture of what actually took place. Court challenges to the admissibility of unrecorded statements often arise in the context of motions to suppress confessions that are allegedly involuntary. The initial determination is made by a judge in connection with a criminal trial.
Appellate courts traditionally rely heavily on determinations of credibility made by such motion judges. Nevertheless, this rarely prevents lengthy appeals, where what actually took place during an interrogation is contested by the prosecution as well as the defense. Where a recording is available, a reviewing court may no longer feel bound by credibility or other findings by a motion or trial court judge.
Although most courts have been reluctant to require recordings, as a matter of constitutional law, many have asserted that recording interrogations would act as a deterrent to police misconduct, reduce the number and length of contested motions to suppress, allow for more accurate resolution of the issues raised in motions to suppress, and, at trial on the merits, provide a fact finder with a complete version of precisely what the defendant and the police did and said during an interrogation.5
Effect on Interrogations
Some police investigators are concerned that recording might deter confessions and cause some persons to refuse to speak freely with police officers. Interestingly, at least some journalists reportedly find this to be true. An article in one of their professional journals There states, is great debate among reporters about tape recording interviews. One school of thought says tape recorders detract from the interview, making the subject more reluctant to talk.6
A 2004 study by former U.S.Attorney Thomas P. Sullivan7 and a 1993 study by the U.S. Department of Justice8 appear to conclude that most law enforcement agencies endorsed the practice once they gained experience with it.
- Departments should investigate the available forms of electronic recording devices (audio, visual, analog, digital, and so on). Vendors are pleased to demonstrate the ease of use of newer devices. Speaking with investigators from other departments will often help demystify the use of such equipment. Handheld digital recorders sell for less than $100. Basic video recorders, even digital versions, are now available for hundreds, not thousands, of dollars. For departments that conduct a larger number of interrogations, sophisticated digital video recorders with helpful annotation features are available for less than $10,000. Some are capable of simultaneous multiple-room recordings.
- Investigators should share anecdotal results of the effect of the use of electronic recording devices on interrogations. Are suspects more reluctant to speak with officers, and are traditional investigation techniques less effective?
- Larger departments or groups of smaller ones might consider more formal testing, involving university-based researchers as appropriate, to measure the effects of recording interrogations. The more departments involved the better. Some grant funding may be available for such studies.
- Where courts announce they are considering imposing an exclusionary rule or similar form of mandatory electronic recording, state and regional associations of chiefs of police should join with prosecutors and others to submit amicus briefs urging courts to establish a broad-based rulemaking committee or at least adopt the cautionary instruction approach followed by Massachusetts, rather than the exclusionary rule adopted in some other states.
- If legislation is proposed, state and regional associations of chiefs of police should adopt a similar committee approach and combine it with an independent study.
- Where no court action is imminent, and no legislation is pending, state and regional associations of chiefs of police should still consider a proactive approach. In addition to learning about and experimenting with various forms of electronic recording technology, police chief associations could commission studies that will help alleviate unwarranted fears and document legitimate concerns or advocate for legislation that supports a more balanced approach than judicially imposed rules.■
1Stephan v. State, 711 P. 2d 1156 1158 (Alaska 1985); State v. Scales, 518 N.W. 2d 587, 592(Minn. 1994).
2See 725 Ill. Comp. Stat. Ann. 5/103-2.1 (West 2003); Me. Rev. Stat. Ann. Tit. 25, s. 2803B(1) (J), 2004 Me. Legis. Serv. 780 (West 2004); Texas Code Crim. Proc. Ann. Art 38.22, s. 3(West 1999).
3Com. v. DiGiambattista, 442 Mass. 423, 813 N.E. 2d 516 (2004).
4State v. Cook, 179 N. J. 533, 562, 847 A. 2d 530(2004).
5See People v. Raibon, 843 P. 2d 46, 49 (Colo. Ct. App. 1992); State v. James, 237 Conn. 390, 432, 434, 678 A. 2d 1338 (1996); State v. Kekona, 77 Hawaii 403, 409, 886 P. 2d 740 (1994); Stoker v. State, 692 N.E. 2d 1386, 1390 (Ind. Ct. App. 1998) (J. Fitzgerald, concurring in part and dissenting in part); Williams v. State, 522 So. 2d 201, 208 (Miss. 1998); State v. Godsey, 60 S.W. 3d 759, 772 (Tenn. 2001); State v. James, 858 P. 2d 1012, 1018 (Utah Ct. App. 1993); State v. Kilmer, 190 W. Va. 617, 629 439 S.E. 2d 881 (1993).
6See Sutherland, "Techniques Improving Interviewing," Editorially Speaking 53 (1999).
7Northwestern University School of Law, Center on Police Wrongful Convictions, Experiences with Recording Custodial Interrogations,” by Thomas P. Sullivan(2004).
8U.S. Department of Justice, National Institute of Videotaping Justice, Interrogations and Confessions, Research in Brief, by Geller (March 1993).