http://www.forensicpsychologyunbound.ws/ – 2009. 1:
E23-E43
The Evolution of Law Enforcement Attitudes to
Recording Custodial Interviews*
Thomas P. Sullivan,
330 N. Wabash Avenue, Chicago, IL
60611 TSullivan@jenner.com
This
material is excerpted, with the kind permission of the publisher, from a
forthcoming special issue of The
Journal of Psychiatry & Law that was guest edited by Gregory DeClue
and overseen by JP&L Editor-in-Chief Philip Witt.
OAJFP
readers will have an opportunity to earn Continuing Education (CE) credits when
the JP&L special issue is published in 2010. To be notified
when this has occurred, please click here and
see the 7/11/09 announcement. This CE course is provided by OAJFPÕs
sponsor, Professional
Resource Press, and will be accessible via the
OAJFP website.
Keywords: custodial interviews, police, sheriff,
law enforcement, recording, interrogation, confession
øøøøøøøøøøøøøøøøøøøøøøøøøøøøøøøøøøøøøøøøøøøøøøøøøøøøøøøøøøøøøøøøøøøøøøøøøøøøøøø
ÒLife is not what one
lived, but what one remembers and how one remembers it in order to recount it.Ó[1]
ÒThe first notion to get
rid of is that memory is primarily or literally reduplicative, or
reproductive.Éremembering appears to be far more decisively an affair of
construction rather than one of mere reproduction.Écondensation, elaboration
and invention are common features of ordinary remembering É. RememberingÉis an
imaginative reconstruction, or construction, built out of the relation of our
attitude towards a whole active mass of organized past reactions or
experiencesÉ.Ó[2]
Year in and year out, in
criminal trials throughout the country, trial court judges and juries listen to
police and defendants testify to conflicting versions of what occurred when the
defendants – then suspects – were brought to the stationhouse and
questioned about their alleged participation in crimes.
Detectives conduct
stationhouse interviews of persons arrested on suspicion of committing crimes
in rooms set aside for that purpose.
Most suspects are without funds to retain lawyers, and agree to proceed
without legal representation.
Later, after the suspects are indicted and have lawyers appointed,
questions are presented about what occurred: Were the required Miranda
warnings given at the outset?[3] Were the suspectsÕ requests for lawyers
ignored? Were coercive tactics
used? What was actually said and
done behind those closed doors?
A step removed from trial
court settings, reviewing court judges are required to read and ponder
transcripts of these same conflicting versions, to determine whether proper
procedures were followed by the police, and appropriate conclusions drawn by
the trial courts and juries.
A movement is underway
throughout the country to adopt a readily available and inexpensive method of
putting an end to these disputes:
making electronic recordings of the events that occur during the
interrogations. Law enforcement
agencies throughout the country have begun to install electronic equipment,
audio, video or both, to produce recordings of the entire sessions.
As recordings of custodial
interviews become more common, detectives, their supervisors and prosecutors
gain experience with the process and its results, and learn the tremendous
benefits they attain. They acknowledge
that recordings yield a far better record of what occurred than participantsÕ
testimony, even those who are doing their best to be honest and even handed.
The defense bar has for
years been urging that stationhouse interrogations be recorded, to prevent
detectives from using improper tactics to obtain confessions, or inaccurately
testifying about what suspects said and did during closed, unrecorded
sessions. They point out that
police have complete control over the rooms in which unrepresented suspects are
questioned, hence use of recording machinery is a matter of police choice. They
continue to be supportive of electronic recordings, even though in many
instances their clients make damaging admissions or confessions, leaving little
or no room for credible claims of innocence.
Members of the judiciary
support recordings of stationhouse questioning for obvious reasons: trial court
judges are relieved of evaluating conflicting testimony, and appellate judges
no longer pour over typewritten questions and answers when reviewing trial
court proceedings.
Recordings of custodial
interrogations almost always yield an incontestable record of what was said and
done. They are therefore becoming
recognized as a major improvement, which leads to more accurate and just
results, and cost savings to all concerned. As a result, an increasing number of state legislatures have
been enacting laws, and state supreme courts have begun issuing rulings which
either require or strongly urge that electronic recordings be made of custodial
interviews in major felony investigations. As Bob Dylan sang, the times they are aÕchangin![4]
My
interest in this subject was initially piqued by the strong opposition of the
Illinois police, sheriff and stateÕs attorney associations to proposed
legislation requiring recordings to be made of custodial questioning of
suspects in capital-eligible homicide cases. This proposal was made to the Illinois General Assembly in
2002, based on a recommendation of the Illinois GovernorÕs Commission on Capital
Punishment (I served as co-chair),
formed by gubernatorial Executive Order, after the 13th defendant on IllinoisÕ
death row was released, including several cases in which the defendant had
ÒconfessedÓ during police questioning.
After strenuous negotiations during the 2003 session of the
Illinois General Assembly, the Illinois mandatory electronic recording statute
was passed and approved by the governor.[5] This was the first time that recording
of custodial interviews was required by a state statute.[6]
Observing this contretemps, I became
perplexed as to why the Illinois law enforcement community was so vigorously
opposed to a reform that the Commission members thought was designed chiefly to
benefit law enforcement? Why would
police, sheriffs and prosecutors resist installation of recording facilities in
stationhouse rooms, and thus diminish unwarranted claims that Miranda warnings were not given, that
confessions had been obtained through unlawful tactics, or that the
investigators were testifying falsely as to what took place? Why would prosecutors oppose obtaining
exact evidence of what was said and done?
In 2003, my associates and I set out to
learn the answers to these questions.
We acted on our own, without outside funding (or interference).[7] Because there are thousands police and
sheriff departments in the United States, we did not attempt to conduct a
nationwide survey. Instead, we
began with a list of ten departments we were told recorded custodial
interviews, contacted them, asked whether they recorded custodial questioning
of suspects, and if so, what their experiences had been. If they did not record, we asked their
reasons. We asked them all to
identify other departments that recorded.
During the past years, we have spoken with
over 800 officers employed in police and sheriff departments in every state
that make it a regular practice to record custodial interviews of felony
suspects. We have also talked to
about 200 that do not customarily record custodial interrogations. Our interviews have yielded amazingly
consistent responses:
á
Those
that make recordings a regular practice describe their experiences in glowing
terms. For a variety of reasons,
they enthusiastically support the practice.
á
Those that do not record express fears of
negative consequences arising from a litany of anticipated problems. The departments that have given
recording a fair try have not experienced these problems, and do not consider
them to be valid reasons for not recording.
We have published the results of our
inquiries in a number of law enforcement and legal journals.[8] Based on the first hand testimony of
experienced detectives and their supervisors, we have recounted how and why
electronic recordings, especially videotape, have proven a great boon to law
enforcement and the defense of innocent suspects. We have also made personal appearances to explain our
findings to police, prosecutors, defense lawyers and judges,[9] and legislative bodies and conferences.[10]
Slowly but inexorably, word has spread in
the law enforcement community and among members of state legislatures about the
positive results obtained from electronic recordings of custodial
interrogations. The evolution of
changed attitudes among law enforcement personnel, legislators and courts have
been interesting to observe, and impressive. At this writing:
á
Recording
statutes have been enacted in nine states[11] and the District of Columbia.
á
Recent
rulings of three state supreme courts[12] have resulted in statewide recordings.
á
Thus,
14 states now require that electronic recordings be made of custodial
interviews of felony suspects in various categories of felony
investigations.
á
In
addition we have identified over 580 police and sheriff departments in the
other 36 states that have voluntarily adopted the practice of using electronic
devices to record custodial interrogations.
á
A committee of the National Conference of
Commissioners on Uniform State Laws (ULC) has drafted a model state statute on
electronic recording of custodial interviews. If approved by the Conference, the statute will be presented
to all state legislatures with recommendations for enactment.
Appendix 1
contains a list of the statutes, court rulings and the departments that
voluntarily record all or a majority of their custodial interviews.[13]
As discussed above, when we first
ventured into this area, a majority of police and prosecutors opposed the
requirement that complete custodial interviews must be electronically
recorded. The reasons varied; most
were grounded upon fears that having a recording activated at the outset would
impair the ability of detectives to establish ÒrapportÓ with suspects before
they began pointed questioning about the crimes; that suspects would refuse to
speak if recorded; that various kinds of equipment malfunctions might occur
during questioning; and cost. In
short, mandatory recordings would require large expenditures and somehow create
risks that guilty criminals would go free.[14]
Since
we began our efforts in 2003, we have observed a dramatic evolution of
attitudes among police, sheriffs and prosecutors. From initial resistance to the notion of recording complete
custodial interviews of criminal suspects, there is now a widespread
acknowledgement by law enforcement personnel that electronic recordings, Miranda to the end, is a wise practice,
although – as discussed below in part 4e – in some quarters
opposition persists to legislation that provides sanctions for unexcused
failures to record.
An
apt example is contained in the affidavits filed by experienced Massachusetts
detectives when the Supreme Judicial Court of Massachusetts was asked to adopt
a statewide rule requiring recording.
The affidavits contained dire predictions of restraints that would be
put on detectives, and resulting doom for law enforcement, if beginning-to-end
custodial recordings were mandated.
The need for initial Òrapport buildingÓ sessions was described as crucial
to obtaining cooperation from guilty suspects. Mechanical problems and unacceptably high costs were
predicted, as well as lost opportunities to question suspects who declined to
speak if recorded. In its ruling,
the Court declined to require recordings, but jury instructions (described
below) were mandated when officers testified to unrecorded interviews.[15] This led state law enforcement
organizations to direct statewide recordings of Òall custodial interrogations
of suspects and interrogations of suspects conducted in places of detention.Ó[16] To their credit, several District
Attorneys and the General Counsel for the Massachusetts Chiefs of Police
Association conceded that their fears were unjustified, and that recordings
have worked to the benefit of police and prosecutors.[17]
We all tend to resent suggestions for
change, especially when presented by those who are Òoutsiders.Ó A pattern often emerges when new ideas
of how to Òdo businessÓ are presented to those who have been become accustomed
to their own Òtried and trueÓ methods: vigorous opposition gives way to
cautious consideration, followed by grudging agreement to give it a try, and,
if warranted by experience, by eventual acceptance and endorsement. It reflects credit on the many law
enforcement officers and prosecutors throughout the country who, following
initial opposition, now acknowledge the benefits of custodial recordings.
Please see the
full article in the upcoming issue of the Journal
of Psychiatry and Law for a rich discussion of these experiences. This article cannot be fully
appreciated without reading the section addressing these experiences.
There can be no doubt that making full
recordings of what goes on behind the doors of stationhouse interview rooms is
a boon to public perception of law enforcement. The degree of cynicism about law enforcement seems to be on
the rise, which is in some sense ironic, because so often the cause is the
misconduct of officers outside the stationhouse which happens to be captured on
video or audio tape. But when
detectives and prosecutors conduct themselves properly – which in my opinion
is almost always the case – and recordings prove that they acted
properly, there is a resulting increase in public confidence in our police and
our system of criminal justice.
As explained above, my views on this
matter have evolved: My first
model recording statute adopted the approach taken by the Illinois General
Assembly, containing a rebuttable presumption that testimony about interviews
that should have been recorded but were not, and none of the statutory
exceptions applied, is presumed inadmissible, unless the judge deems the
evidence reliable and otherwise admissible under the rules of evidence.[18] Since that model was originally
published in 2005, we have obtained a greater understanding of the attraction
that recordings have to law enforcement officers once they have adopted the
practice. But we have also learned
of problems potentially faced by detectives when conducting custodial
interviews, and observed first hand the vigor of law enforcement resistance to
a presumption of inadmissibility, with the threat of losing confessions and
admissions of suspects they believe guilty.
In order to accommodate the legitimate
concerns of law enforcement personnel, we have altered our position as to consequences
of failures to record when required by statute or court decision. The revised model code, published in a
recent edition of the Journal of Criminal Law and Criminology, provides that
testimony about unrecorded sessions is admissible, but unexcused failures to
record are dealt with through the following jury instructions:
The law of this state required that the interview of the
defendant by law enforcement officers which took place on [insert date] at
[insert place] was to be electronically recorded, from beginning to end. The purpose of this requirement is to
ensure that you jurors will have before you a complete, unaltered, and precise
record of the circumstances under which the interview was conducted, and what
was said and done by each of the persons present.
In this case, the interviewing law enforcement agents failed
to comply with that law. They did
not make an electronic recording of the interview of the defendant. No justification for their failure to
do so has been presented to the court.
Instead of an electronic recording, you have been presented with
testimony as to what took place, based upon the recollections of law
enforcement personnel [and the defendant].
Accordingly, I must give you the following special
instructions about your consideration of the evidence concerning that
interview.
Because the interview was not electronically recorded as
required by our law, you have not been provided the most reliable evidence as
to what was said and done by the participants. You cannot hear the exact words used by the participants, or
the tone or inflection of their voices.
Accordingly, as you go about determining what occurred
during the interview, you should give special attention to whether you are
satisfied that what was said and done has been accurately reported by the
participants, including testimony as to statements attributed by law
enforcement witnesses to the defendant.[19]
These instructions are similar to those
required by the New Jersey Supreme Court.[20]
Recent in-depth research into adjudicated
cases has disclosed that many of the persons who have been exonerated through
DNA have confessed, thus establishing without doubt that people occasionally
confess to committing crimes they did not commit.[21] The authors of one of the studies have
stated:
Without equivocation, our first and most essential
recommendation is to lift the veil of secrecy from the interrogation process in
favor of the principle of transparency.
Specifically, all custodial interviews and interrogations of felony
suspects should be videotaped in their entirety and with an equal focus on
suspects and interrogator.[22]
The author of another study had this to
say:
Absent a recording of the
interrogation, courts were faced with a swearing contest between the defendant
alleging coercion and law enforcement denying coercionÉ. A complete
interrogation record enables meaningful reliability review and could help to
prevent the problem of confession contamination through disclosure of key facts.[23]
An inevitable result of not recording
custodial interviews is that detectives, unintentionally or deliberately, will
fail to give an accurate, fair description of what occurred. There is also a risk that detectives
may inadvertently induce confessions that are untrue. One veteran detective has candidly admitted that he obtained
a confession from an innocent suspect, and explained how it occurred: After the suspect/confessorÕs innocence
was proven by an ironclad alibi, the detective reviewed the videotape of the
interrogation, and saw how he and his fellow detectives had Òunintentionally
fed [the suspect] detailsÓ of the crime that the suspect Òwas able to parrot
backÓ to the detectives.[24]
There are costs incurred and costs saved
when custodial interviews are recorded.
Analysis shows that savings far outstrip the expenditures, although many
of the savings result from money, time and effort not expended, which do not appear Òon the books.Ó
Here are the
major costs:
á
Purchasing,
installing and maintaining audio and/or video equipment.
á
Preparing/constructing
interview rooms, perhaps with soundproof walls.
á
Training
officers in the use of equipment and techniques of conducting recorded interviews.
á
Officers
and prosecutors reading transcripts and/or viewing tape recordings.
á
Preparing
typewritten transcriptions of recordings.
á
Preparing
recordings for use/display in courtrooms.
á
Storing
cassettes, compact discs and related digital equipment.
Here are the major savings:
á
Police
preparing for, attending and testifying regarding unrecorded interviews at
pretrial motions to suppress, trials, and post-conviction hearings.
á
Prosecutors
preparing police to testify regarding unrecorded interviews, and examining them
at pretrial motions to suppress, trials and post-conviction hearings.
á
Prosecutors
preparing to cross examine, and cross examining, defense witnesses regarding
unrecorded interviews.
á
Avoiding
the risk of judges and jurors accepting defense versions of what was said
and/or done during unrecorded interviews, leading to suppression of unrecorded
confessions and admissions, and/or acquittals.
á
Avoiding
state court appellate proceedings, and federal habeas corpus proceedings,
related to the foregoing.
á
Avoiding
risk of civil suits for damages for alleged improper conduct of detectives
during interviews, including cost of preparing a defense and trials, and risk
of verdicts for money damages.
á
Saving
premiums for law enforcement liability insurance.
It is sad but true that federal agencies
resist using in their interviews of suspects the very same recording devices
they employ on a daily basis for other investigative purposes.[25] While agents from these fine organizations, both civil and
criminal, routinely use the most modern electronic equipment in many aspects of
their work they continue to use primitive methods of ÒrecordingÓ what was said
and done during custodial interviews, clinging stubbornly to outmoded Òscribble
and typeÓ practices.[26] Almost all federal agents, both civil
and criminal investigative agents, make handwritten notes of their interviews,
and later prepare typewritten summaries.
These summaries are, of course, incapable of accurately and completely
capturing precisely what was said and done during the interviews; they are a
far cry from what would be shown by electronic recordings of the events they
purport to portray.
Federal agenciesÕ adherence to outdated
methods of chronicling interviews is of particular significance because, under
federal law, it is a crime to make a material misstatement of fact when being
interviewed by a federal agent.[27] The context and accuracy of
interviews with federal agents thus becomes of critical importance –
precisely what was asked and answered?
The only records usually made are the agentsÕ typed reports. Persons interviewed are thus at a
serious risk that the reports may inaccurately summarize what they were asked
and answered, which is no small matter because of the deference often given to
federal agents by courts and juries.
As observed above, now President Barack
Obama, as a Senator in the Illinois General Assembly, was a leading proponent
of the bill to require electronic recordings of custodial interviews of
homicide suspects, and Illinois became the first state to enact a mandatory
recording statute. As President,
he has power by issuance of an Executive Order[28]
to require federal investigative agencies to make electronic recordings of all
custodial interviews.
When federal
agencies come to adopt electronic recording – which they inevitably are
destined to do – whether voluntarily, or as a result of a statutory
mandate or Executive Order – it will be a major step forward for the
accuracy and integrity of federal law enforcement.
Let us hope that this evolutionary
process will continue, so that within a few years all police and sheriff
departments in the United States, including federal investigative agencies,
will routinely record their custodial interviews of arrested suspects.
APPENDIX 1
DEPARTMENTS
THAT CURRENTLY
RECORD A MAJORITY OF CUSTODIAL INTERROGATIONS1
PD stands
for Police Department, DPS for Department of Public Safety,
and CS for County Sheriff.
Alabama
Mobile CS
Mobile PD
Prichard PD
Alaska
All departments - Supreme
Court ruling[i]
Arizona
Casa Grande PD
Chandler PD
Coconino CS
El Mirage PD
Flagstaff PD
Gila CS
Gilbert PD
Glendale PD
Marana PD
Maricopa CS
Mesa PD
Oro Valley PD
Payson PD
Peoria PD
Phoenix PD
Pima CS
Pinal CS
Prescott PD
Scottsdale PD
Sierra Vista PD
Somerton PD
South Tucson PD
Surprise PD
Tempe PD
Tucson PD
Yavapai CS
Yuma CS
Yuma PD
Arkansas[ii]
AR State PD
Eureka Springs PD
Fayetteville FD
Fayetteville PD
14th Judicial District
Drug Task Force
Washington CS
Van Buren PD
California
Alameda CS
Arcadia PD
Auburn PD
Bishop PD
Butte CS
Carlsbad PD
Contra Costa CS
El Cajon PD
El Dorado CS
Escondido PD
Folsom PD
Grass Valley PD
Hayward PD
LaMesa PD
Livermore PD
Oceanside PD
Orange CO Fire Authority
Orange CS
Placer CS
Pleasanton PD
Rocklin PD
Roseville PD
Sacramento CS
Sacramento PD
San Bernardino CS
San Diego PD
San Francisco PD
San Joaquin CS
San Jose PD
San Leandro PD
San Luis PD
Santa Clara CS
Santa Clara PD
Santa Cruz PD
Stockton PD
Sunnyvale DPS
Union City PD
Vallejo PD
Ventura CS
West Sacramento PD
Woodland PD
Yolo CS
Colorado
Arvada PD
Aurora PD
Boulder PD
Brighton PD
Broomfield PD
Colorado Springs PD
Commerce City PD
Cortez PD
Denver PD
El Paso CS
Ft. Collins PD
Lakewood PD
Larimer CS
Logan CS
Loveland PD
Montezuma CS
Sterling PD
Thornton PD
Connecticut[iii]
Bloomfield PD
Cheshire PD
CT State PD Internal
Affairs Unit
Delaware
DE State PD
New Castle City PD
New Castle County PD
District of Columbia
All departments - statute[iv]
Florida
Cape Coral PD
Collier CS
Coral Springs PD
Daytona Beach PD
Ft. Lauderdale PD
Ft. Myers PD
Hallandale Beach PD
Hialeah PD
Hollywood PD
Key West PD
Kissimmee PD
Lee CS
Manatee CS
Margate PD
Miami PD
Monroe CS
Mount Dora PD
Orange CS
Osceola CS
Palatka PD
Pembroke Pines PD
Pinellas CS
Port Orange PD
Sanibel PD
St. Petersburg PD
Georgia
Atlanta PD
Centerville PD
Cobb County PD
DeKalb County PD
Fulton County PD
Gwinnett County PD
Houston CS
Macon PD
Perry PD
Savannah-Chatham PD
Warner Robins PD
Hawaii
Honolulu PD
Idaho
Ada CS
Blaine CS
Boise City PD
Boise CS
Bonneville CS
Caldwell PD
Canyon CS
Cassia CS
Coeur dÕ Alene PD
Garden City PD
Gooding CS
Gooding PD
Hailey PD
ID Dept Fish & Games
ID Falls PD
ID State PD
Jerome CS
Jerome PD
Ketchum PD
Lincoln CS
Meridian PD
Nampa PD
Pocatello PD
Post Falls PD
Twin Falls PD
Illinois
All departments -
homicides
- statute[v]
Other felonies -
Bloomington PD
Cahokia PD
Carlinville PD
Caseyville PD
Dixon PD
DuPage CS
East St. Louis PD
Fairview Heights PD
Galena PD
IL Gaming Board
Kankakee CS
Kankakee PD
Lincoln PD
Macon CS
Naperville PD
OÕFallon PD
Rockton PD
Springfield PD
St. Clair CS
Swansea PD
Troy PD
Winnebago CS
Indiana[vi]
Albion PD
Allen CS
Atlanta PD
Auburn PD
Carmel PD
Cicero PD
Clark CS
Clarksville PD
Columbia City PD
Dyer PD
Elkhart CS
Elkhart PD
Elwood PD
Fishers PD
Floyd CS
Fort Wayne PD
Greensburg PD
Hamilton CS
Hancock CS
Hartford PD
IN State PD
Jeffersonville PD
Johnson CS
Kendallville PD
LaGrange CS
Lowell PD
Montpelier PD
Nappanee PD
Noble CS
Noblesville PD
Pendleton PD
Schererville PD
Sheridan PD
Shipshewana PD
Steuben CS
Tipton PD
Wells CS
Westfield PD
Iowa[vii]
Altoona PD
Ames PD
Ankeny PD
Arnolds Park PD
Benton CS
Bettendorf PD
Cedar Rapids PD
Clarion PD
Colfax PD
Council Bluffs PD
Davenport PD
Des Moines PD
Fayette CS
Fayette County PD
Iowa City PD
Iowa DPS
Johnson CS
Kossuth CS
Linn CS
Marion PD
Marshalltown PD
Mason City PD
Merrill PD
Muscatine PD
Nevada PD
Parkersburg PD
Polk CS
Pottawattamie CS
Sioux City PD
Storm Lake PD
Vinton PD
Washington CS
Waterloo PD
Waverly PD
West Burlington PD
Woodbury CS
Kansas
Junction City PD
Kansas Univ. DPS
Liberal PD
Ottawa PD
Sedgwick CS
Sedgwick PD
Shawnee CS
Topeka PD
Wichita PD
Kentucky
Elizabethtown PD
Hardin CS
Jeffersontown PD
Louisville Metro PD
Louisville PD
Oldham CS
St. Matthews PD
Louisiana
Lafayette City PD
Lake Charles PD
Oak Grove PD
Plaquemines Parish CS
St. Tammany Parish CS
Maine
All departments - statute[viii]
Maryland
All departments - statute[ix]
Massachusetts[x]
Barnstable PD
Boston PD
Bourne PD
Brewster PD
Cambridge
Chatham PD
Dalton PD
Dennis PD
Easton PD
Edgartown PD
Fall River PD
MA State PD
North Central Correctional
Inst.
Oak Bluffs PD
Orleans PD
Pittsfield PD
Revere Fire Dept.
Somerset PD
Tewksbury PD
Troro PD
West Tisbury PD
Yarmouth PD
Michigan
Auburn Hills PD
Benzie CS
Big Rapids DPS
Cass County Drug
Enforcement Team
Cass County CS
Charlevoix CS
Detroit PD (homicides)
Emmet CS
Farmington DPS
Gerrish Township PD
Gladwin PD
Huntington Woods DPS
Isabella CS
Kent CS
Kentwood PD
Lake CS
Ludington PD
Manistee CS
Mason CS
Mecosta CS
MI State PD
Milford PD
Mt. Pleasant PD
Niles City PD
Novi PD
Oak Park DPS
Onaway PD
Paw Paw PD
Redford Township PD
Scottville PD
Troy PD
Waterford PD
West Branch PD
Wyoming PD
Minnesota
All departments - Supreme
Court ruling[xi]
Mississippi
Biloxi PD
Cleveland PD
Gulfport PD
Harrison CS
Jackson CS
Missouri
All departments - statute[xii]
Montana
All departments - statute[xiii]
Nebraska
All departments - statute[xiv]
Nevada
Boulder City PD
Carlin PD
Douglas CS
Elko CS
Elko PD
Henderson PD
Lander CS
Las Vegas Metro PD
Nevada DPS
North Las Vegas PD
Reno PD
Sparks PD
Washoe CS
Wells PD
Yerington PD
New Hampshire[xv]
Carroll CS
Concord PD
Conway PD
Enfield PD
Keene PD
Laconia PD
Lebanon PD
Nashua PD
NH State PD
Plymouth PD
Portsmouth PD
Swanzey PD
New Jersey
All departments - Supreme
Court Rule[xvi]
New Mexico
All departments - statute[xvii]
New York
Binghamton
PD
Broome CS
Cayuga Heights PD
Delaware CS
Deposit PD
Dryden PD
Endicott PD
Greece PD
Glenville PD
Irondequoit PD
NY State PD - Ithaca
NY State PD - Oneonta
NY State PD - Sidney
Rotterdam PD
Schenectady PD
Tompkins CS
Vestal PD
North Carolina
All departments -
homicides - statute[xviii]
Other felonies -
Burlington PD
Concord PD
Wilmington PD
North Dakota
Bismarck PD
Burleigh CS
Fargo PD
Grand Forks CS
Grand Forks PD
Valley City PD
Ohio
Akron PD
Brown CS
Cincinnati PD
Columbus PD
Dawson CS
Dublin PD
Franklin PD
Garfield Heights PD
Grandview Heights PD
Grove City PD
Hartford PD
Hudson PD
Millersburg PD
OH Board of Pharmacy
OH State Univ. PD
Ontario PD
Reynoldsburg PD
Springboro PD
Upper Arlington PD
Wapakoneta PD
Warren CS
Westerville PD
Westlake PD
Worthington PD
Oklahoma
Moore PD
Norman PD
Oklahoma CS
Tecumseh PD
Oregon
All departments - statute
(effective Jan. 1, 2010)[xix]
Bend PD
Clackamas CS
Coburg PD
Corvallis PD
Douglas CS
Eugene PD
Lincoln City PD
Medford PD
Ontario PD
OR State PD, Springfield
Portland PD
Roseburg PD
Salem PD
Toledo PD
Warrenton PD
Yamhill CS
Pennsylvania
Bethlehem PD
Tredyffrin Township PD
Whitehall PD
Rhode Island
RI Dept of Public Safety
(capital offenses)
Woonsocket PD
South Carolina
Aiken CS
Aiken DPS
N. Augusta DPS
Savannah River
Site Law Enf.
South Dakota
Aberdeen PD
Brookings PD
Brown CS
Clay CS
Lincoln CS
Minnehaha CS
Mitchell PD
Rapid City PD
Sioux Falls PD
SD State Div. of Criminal
Investigations
SD State Univ. PD
Vermillion PD
Tennessee
Blount CS
Bradley CS
Brentwood PD
Chattanooga PD
Cleveland PD
Goodlettsville PD
Hamilton CS
Hendersonville PD
Loudon CS
Montgomery CS
Murfreesboro PD
Nashville PD
Texas[xx]
Abilene PD
Andrews PD
Arlington PD
Austin PD
Burleson PD
Cedar Hill PD
Cedar Park PD
Cleburne PD
Collin CS
Corpus Christi PD
Dallas PD
Duncanville PD
Florence PD
Frisco PD
Georgetown PD
Granger PD
Harris CS
Houston PD
Hutto PD
Irving PD
Johnson CS
Kileen PD
Knox CSO
Leander PD
Midland PD
Parker CS
Plano PD
Randall CS
Richardson PD
Round Rock PD
San Antonio PD
San Jacinto CS
Southlake DPS
Sugar Land PD
Taylor PD
Travis CS
Webster PD
Williamson CS
Utah[xxi]
Layton PD
Salt Lake City PD
Salt Lake CS
Utah CS
Vermont
Burlington PD
Norwich PD
Rutland PD
Virginia
Alexandria PD
Chesterfield County PD
Clarke CS
Fairfax PD
Loudoun CS
Norfolk PD
Richmond PD
Stafford CS
Virginia Beach PD
Washington
Adams CS
Arlington PD
Bellevue PD
Bothell PD
Buckley PD
Columbia CS
Ellesburg PD
Federal Way PD
Kennewick PD
Kent City PD
King CS
Kirkland PD
Kittitas CS
Klickitat CS
Lewis CS
Marysville PD
Mercer Island PD
Mount Vernon PD
Pierce CS
Prosser PD
Snohomish CS
Thurston CS
Univ. WA PD
Walla Walla PD
WA State Patrol
Yakima CS
West Virginia
Charles Town PD
Monongalia CS
Morgantown CS
Morgantown PD
Wheeling PD
Wisconsin
All departments - statute[xxii]
Wyoming
Cheyenne PD
Cody PD
Gillette City PD
Laramie CS
Laramie PD
Lovell PD
Polk CS
Thomas P. Sullivan
August 2009
*The author
thanks Andrew W. Vail, Jennifer S. Senior, Jo Stafford and Maggie A. Webb for
their valuable assistance in the preparation of this article.
[1] Gabriel Garcia
Marquez, Living to Tell the
Tale, (Knopf 2003), Prologue. The
authorÕs observations were playfully illustrated by Lerner and Loewe in the
musical Gigi: He: We met at nine.
She: We met at eight. I was on time. No, you were late. We dined with friends. We dined alone. A tenor sang. A baritone.
That carriage ride. You
walked me home. You lost a
glove. I lost a comb. Ah yes! I remember it well.
[2] People v. Shirley, 723 P.2d 1354, 1378
(Cal. 1982) (citations omitted) (quoting Frederic
C. Bartlett, Remembering: A Study in Experimental and Social Psychology
204-05, 213 (Cambridge Univ. Press 1932).
[3] See Miranda v. Arizona, 384 U.S. 436
(1966).
[4] Bob Dylan,
The Times They Are A-ChanginÕ (Columbia 1964).
[5] 705 Ill.
Comp. Stat. Ann. 405/5-401.5 and 725 Ill.
Comp. Stat. Ann. 5/103-2.1 (West 2009), effective July 2005. These statutes are limited to custodial interviews of homicide
suspects. Then Illinois Senator
Barack Obama was chief sponsor and a leader of the negotiations.
[6] The supreme courts of Alaska and
Minnesota had earlier ruled that custodial interviews must be recorded under
the laws of those states. See Stephan
v. State, 711 P.2d 1156, 1162 (Alaska 1985); State v. Scales, 518 N.W.2d 587, 591 (Minn. 1994).
[7] The firm of
Wicklander-Zulawski & Associates of Downers Grove, Illinois, which trains
law enforcement officers, assisted us by asking their trainees to complete a
survey form as to their recording practices.
[8] Thomas P. Sullivan, Ctr. on Wrongful
Convictions, Northwestern Univ. Sch. of Law, Police Experiences with
Recording Custodial Interrogations 1 (2004), http://www.jenner.com/policestudy;
Sullivan, Police Experiences with Recording Custodial Interrogations, 88
Judicature 132 (2004); Sullivan, The
Police Experience: Recording Custodial Interrogations, 28 Champion 24 (2004); Sullivan, Recording
Custodial Interrogations: The Police Experience, 52 Fed. Law. 20 (2005); Sullivan, Recording Custodial
Interrogations, 53 L. & Ord. 46 (2005);
Sullivan, Electronic Recording of Custodial Interrogations: Everybody Wins,
95 J.
Crim. L. & Criminology 1127 (2005); Sullivan, Electronic
Recording of Custodial Interrogations, The
Chief of Police: NatÕl AssÕn of Chiefs of Police Nov.-Dec. 2005, at 17
(2005); Sullivan, The Time Has Come for Law Enforcement Recordings of
Custodial Interviews, Start to Finish, 37 Golden
Gate U. L. Rev. 175 (2006); Sullivan, Federal Law Enforcement Should
Record Custodial Interrogations, 53 Fed.
Law. 44 (2006), reprinted in
31 Champion 8 (Apr. 2007);
Sullivan, Andrew W. Vail & Howard W. Anderson, The Case for Recording Police Interrogations, 34 A.B.A. Litig. 30 (2008); Sullivan, Recording Federal Custodial Interviews,
45 Am. Crim. L. Rev. 1297 (2008);
Sullivan & Vail, The Consequences of
Law Enforcement OfficialsÕ Failure to Record Custodial Interviews as Required
by Law, 99 J. Crim. L. &
Criminology 215 (2009).
[9] For example, Am. Acad. of Psychiatry and Law, Midwest Chapter Annual Conf., Chicago, IL, (Apr. 2003); NatÕl Lawyers AssÕn Annual Convention and Educ. Conf., Chicago, IL (July 2003); NatÕl Defender Investigator AssÕn Midwest RegÕl Conf., St. Louis, MO (Sept. 2003); Wis. Avery Task Force (Apr. 2004); Ill. Defenders AssÕn Spring Seminar, Urbana, IL (May 2004); State Legis. Leaders Found., Chicago, IL (June 2004); Northwestern Univ. Sch. of Law, Short Course for Prosecuting AttÕys, Chicago, IL (July 2004); NatÕl AssÕn of Criminal Def. Lawyers, San Francisco, CA (July 2004) and Portland, OR (Aug. 2005); Justice Mgmt. Inst., Am. Judicature SocÕy (AJS), Chapel Hill, NC (Dec. 2004); Hennepin County AttÕyÕs Office, Conf., Minneapolis, MN. (Feb. 2005); State Bar of Tex. Individual Rights and Responsibilities Section, Symposium, Austin, TX. (Feb. 2005); Ill. State Appellate Defender Conf., Chicago, IL. (Mar. 2005); NatÕl Inst. of Justice NatÕl Conf., St. Petersburg, FL. (Sept. 12-14, 2005); Idaho AssÕn of Criminal Def. AttÕys Annual Meeting, Sun Valley, ID (Mar. 2006); Cyril H. Wecht Inst. of Forensic Sci. and Law and Duquesne Univ.Õs Symposium, Pittsburgh, PA (Apr. 20-22, 2006); Cal. CommÕn on the Fair Admin. of Justice, Los Angeles, CA. (June 2006); Ctr. for Am. and IntÕl Law and AJS Program, Plano, TX. (Aug. 17-18, 2006); IntÕl AssÕn of Chiefs of Police, Annual Meeting (Oct. 2006); NatÕl State LegislatorsÕ Conf., Washington, DC (Dec. 2006); Mich. AssÕn of Chiefs of Police Mid-Winter Meeting (Jan. 2007); Univ. of Richmond Law Sch., Symposium, Richmond, VA. (Apr. 2007); John Jay College of Criminal Justice, Conf., New York, NY (Mar. 2007); Univ. of Tex. El Paso, El Paso, TX (Sept. 2007); Iowa AssÕn of Criminal Def. Lawyers Annual Conf., Des Moines, IA (Nov. 2007); Ctr. for Am. and IntÕl Law, Plano, TX (Aug. 2008); NatÕl Inst. of Military Justice Comm., Washington, DC (June 2009).
[10] Maryland (Mar.
2006, Jan. 2007), Missouri (Nov. 2005), Montana (Feb. 2009), Nebraska (Feb.
2007), New York (Oct. 2005 and Apr. 2008), Oregon (Mar. 2009), Pennsylvania
(Mar. and Aug. 2008), Tennessee (Dec. 2007), Wisconsin (Apr. 2004), District of
Columbia (Nov. 2004).
[11] Illinois,
Maine, Maryland, Montana, New Mexico, Nebraska, North Carolina, Oregon,
Wisconsin.
[12] Iowa,
Massachusetts and New Jersey. See State
v. Hajtic, 724 N.W.2d 449 (Iowa 2006); Commonwealth
v. DiGiambattista, 813 N.E.2d 516, 533-34 (Mass. 2004); N.J. Ct. R. 3.17 (2005) (West 2009). As noted, the supreme courts of Alaska
and Minnesota ordered statewide custodial recordings years before enactment of
the Illinois statute. See above
text and cases cited accompanying note 6.
[13] We continue to
place calls to a growing list of departments we have been told record on a
voluntary basis, and to urge legislatures to adopt recording statutes.
[14] Similar doom
and gloom predictions were voiced by law enforcement when the United States
Supreme Court ruled in the Miranda case that arrested suspects could not be
questioned about crimes until after they were told of their rights to remain
silent and to legal representation.
As it has turned out, most Òstreet crimesÓ suspects are indigent, and
voluntarily waive these rights.
[15] Commonwealth v. DiGiambattista, 813
N.E.2d 516, 533-34 (Mass. 2004).
[16] Mass. Dist.
AttÕys AssÕn, Report of the Justice Initiative 14 (Sept. 2006).
[17] See Noah Schaffer, Tale of the Tape: Recorded Interrogations Level the Playing Field, Despite Initial Fears, Mass. Law. Wkly., Apr. 2, 2007, available at http://www.nacdl.org/sl_docs.nsf/freeform/Mandatory:028?OpenDocument.
[18] See Electronic
Recording of Custodial Interrogations: Everybody Wins, above note 8, at 1142.
[19] The Consequences of Law Enforcement
OfficialsÕ Failure to Record, above
note 8, app. A at 226.
[20] N.J. Ct. R. 3:17(d), (e) (West 2009). See
also the statutes enacted in Nebraska, Neb.
Rev. Stat. ¤ 29-4505 (West 2009); North Carolina, N.C. Gen. Stat.
¤ 15A-211 (West 2009); Oregon, Act of Jan. 24, 2009, ch. 488, 2009 Or. Laws ch.
488 (West 2009); Wisconsin, Wis. Stat. Ann.
¤ 972.115(d)(2) (West 2009).
[21] Saul M. Kassin
et al., Police-Induced Confessions: Risk Factors and Recommendations,
Law & Hum. Behav. (forthcoming Jan. 2010) (manuscript on file with author);
Brandon L. Garrett, The Substance of
False Confessions, 62 Stan. L. Rev. (forthcoming 2009), available at http://bepress.com/uva/wps/uva_publiclaw/art136.
[22] See Kassin et al., above note 54 (manuscript at 23) (emphasis omitted).
[23] See The
Substance of False Confessions, above
note 54, at 53-54.
[24] See Jim Trainum, I Took A False Confession—So DonÕt Tell Me It DoesnÕt Happen!, The California Majority Report, Sept. 20, 2007, http://www.camajorityreport.com/index.php?module=articles&func=display&aid=2306.
[25] For example, undercover agents and Òcooperating individualsÓ routinely
use recorded personal and telephone conversations and videotapes to depict
suspectsÕ conduct.
[26] The bases for
their opposition, summarized by three Department of Justice investigatory
agencies, have been found baseless by experienced detectives throughout the
country. See Recording Federal
Custodial Interviews, above note
8, at 1315-35.
[27] 18 U.S.C.A. ¤ 1001(a)(2) (West
2009).
[28] 10 U.S.C.A.
¤ 836 (West 2009).
1 In August
2007, the National Conference of Commissioners on Uniform State Laws approved
formation of a drafting committee to formulate a uniform state statute on
electronic recording of custodial interrogations.
[i] Stephan v. State, 711 P.2d 1156, 1162
(Alaska 1985).
[ii] In Clark v.
State, 374 Ark. 292, 302 (2008), the Arkansas Supreme Court rejected the defendantÕs
argument that she had a constitutional right to have the police make a complete
recording of her custodial interview.
However, the Court stated, Òwe believe that the criminal justice system
will be better served if our supervisory authority is brought to bear on this
issue. We therefore refer the
practicability of adopting such a rule to the Committee on Criminal Practice
for study and consideration.Ó Clark, 374 Ark. at 304.
[iii] In 2008,
the Connecticut General Assembly instructed the Advisory Commission on Wrongful
Convictions to implement a Òpilot program to electronically record the
interrogations of arrested personsÓ and report findings and recommendations by
July 1, 2009. Act of June 5, 2008, Pub. Act No. 08-143, sec. 2-4, 2008
Conn. Legis. Serv. (West), effective June 5, 2008. The Commission
reported that of the ninety-nine custodial interviews recorded under the
pilot program, eighty-four interviews were covert, fifty-five resulted in
confessions, and three resulted in statements of criminal involvement.
Conn. Advisory CommÕn on Wrongful Convictions, Report, at 4 (Feb.
2009). A substantial majority of detectives reported positive
opinions of the recording program, and a remainder expressed neutral
opinions. Report at app. B. The detectives reported that the
use of recording equipment did not interfere with questioning or
outcomes. Report at app. B.
[iv] D.C. Code ¤¤ 5-116.01-03 (West
2009), effective Apr. 13, 2005.
[v] 705 Ill. Comp. Stat. Ann. ¤ 405/5-401.5
and 725 Ill. Comp. Stat. Ann. ¤ 5/103-2.1
(West 2009), effective July 18, 2005.
[vi] In March
2009, the Indiana Supreme Court Committee on Rules of Practice and Procedure
distributed an announcement which states: ÒThe Indiana Supreme Court is
interested in receiving comments from the bench, bar and public concerning
(1) whether it should adopt a rule requiring that custodial interrogations
in criminal investigations be electronically recorded in some circumstances,
and (2) if so, the appropriate content of such a rule. To that end, the Court asked the
Committee on Rules of Practice and Procedure to develop and publish such a
rule.Ó
[vii] Following
the ruling of the Iowa Supreme Court in State
v. Hajtic, 724 N.W.2d 449 (Iowa 2006), the Attorney General wrote in the
State Police AssociationÕs publication:
ÒAlthough the court stated that it is ÔencouragingÕ the practice of
electronic recording, the attorney generalÕs office believes that the Hajtic decision should be interpreted as
essentially requiring this practice.Ó
Tom Miller, Cautions Regarding
Custodial Issues, Iowa Police J.,
vol. 39, no. 1, at 15 (2007).
[viii] Me Rev. Stat. Ann. Title 25,
¤ 2803-B(1)(K) (West 2009), effective Jan. 1, 2005.
[ix] The
Maryland Code of Criminal Procedure requires that law enforcement units shall
make Òreasonable effortsÓ to create a recording of custodial interviews of
suspects in connection with cases involving named felonies Òwhenever
possible.Ó MD. Ann. Code, Crim. Proc. ¤ 2-402 (West 2009),
effective Oct. 1, 2008.
[x] Commonwealth v. DiGiambattista, 813 N.E.2d
516, 533-34 (Mass. 2004).
Following this ruling, the state Attorney General and District Attorneys
AssÕn wrote in a Sept. 2006 Justice Initiative Report: ÒLaw enforcement officers shall,
whenever it is practical and with the suspectÕs knowledge, electronically
record all custodial interrogations of suspects and interrogations of suspects
conducted in places of detention.Ó
The Chiefs of Police AssÕn, District Attorneys AssÕn and State Police
distributed a ÒSample Policy and ProcedureÓ (No. 2.17) to law enforcement
agencies throughout the state, which states, ÒIt is the policy of the
department, whenever it is practical, to electronically record all custodial
interrogations of suspects or interrogations of suspects in places of
detention.Ó
[xi] State v. Scales, 518 N.W.2d 587, 591
(Minn. 1994).
[xii] Mo
Rev. Stat. ch. 590, sec. 701.
[xiii] The
Montana statute requires recording of custodial interviews of felony
suspects. Act of Apr. 15, 2009,
ch. 214, 2009 Mont. Laws (West), effective Oct. 1, 2009 (to be codified at
Mont. Code Ann. tit. 46, ch. 4).
[xiv] Neb. Rev. Stat. Ann. ¤ 29-4501-4508
(West 2009), effective July 18, 2008.
[xv] In State v. Barnett, 789 A.2d 629, 632-33
(N.H. 2001), the New Hampshire Supreme Court held that if an electronically
recorded statement is offered into evidence, the recording is admissible only
if the entire post-Miranda
interrogation interview was recorded.
The ruling does not require that custodial interviews be recorded either
in whole or in part. If a
partially recorded statement is excluded from evidence because the entire
interview was not recorded, testimonial evidence is nevertheless admissible as
to what occurred before, during and after the custodial interview, including
the portion that was recorded.
[xvi] N.J. Ct. R. 3.17 (2005).
[xvii] N.M. Stat. Ann. ¤ 29-1-16 (West
2009), effective Jan. 1, 2006.
[xviii] N.C. Gen. Stat. Ann. ¤ 15A-211 (West 2009), effective Mar. 1, 2008.
[xix] The
Oregon statute requires recording of custodial interviews of suspects of
aggravated homicides and crimes with mandatory minimum sentences. Act of Jan. 24, 2009, ch. 488, 2009 Or.
Laws ch. 488 (West 2009), effective July 1, 2010 and July 1, 2011 (to be
codified at Or. Rev. Stat.
¤ 165.540).
[xx] The Texas
Code of Criminal Procedure provides that a defendantÕs unrecorded oral
statement is inadmissible unless the statement Òcontains assertions of facts or
circumstances that are found to be true and which conduce to establish the
guilt of the accused.Ó Tex. Code Crim. Proc. Ann. art.
38.22 (Vernon 2009) (effective Sept. 1, 1989, amended 2001); see Moore v. State, 999 S.W.2d 385,
400 (Tex. App. 1999). The statute
does not require recording of custodial interviews preceding recorded
statements, nor exclusion of suspectsÕ unrecorded written statements. See
Rae v. State, No. 01-98-00283-CR, 2001 WL 125977, at 3 (Tex. App.
2001); Franks v. State, 712 S.W.2d
858, 860 (Tex. App. 1986).
[xxi] The Utah
Attorney General has adopted a Best Practices Statement, endorsed by all state
law enforcement agencies, recommending that custodial interrogations in a fixed
place of detention of persons suspected of committing a statutory violent
felony, should be electronically recorded from the Miranda warnings to the end in their entirety. Various exceptions to the requirement
are included. Office of the Utah
Attorney General, Best Practices
Statement for Law Enforcement:
Recommendations for Recording of Custodial Interviews (Oct. 2008).
[xxii] Wis.
Stat. Ann. ¤¤ 968.073, 972.115 (West 2009), effective Dec. 31, 2005.