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 OAJFP’s sponsor, Professional Resource Press, and will be accessible via the OAJFP website.

Keywords:  custodial interviews, police, sheriff, law enforcement, recording, interrogation, confession

ÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝÝ

“Life is not what one lived, but what one remembers and how one remembers it in order to recount it.”[1] 

“The first notion to get rid of is that memory is primarily or literally reduplicative, or reproductive.…remembering appears to be far more decisively an affair of construction rather than one of mere reproduction.…condensation, elaboration and invention are common features of ordinary remembering …. Remembering…is an imaginative reconstruction, or construction, built out of the relation of our attitude towards a whole active mass of organized past reactions or experiences….”[2] 

Summary

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 suspects’ 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 participants’ 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 a’changin![4]

1. Introduction

My interest in this subject was initially piqued by the strong opposition of the Illinois police, sheriff and state’s 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 Governor’s Commission on Capital Punishment  (I served as co-chair), formed by gubernatorial Executive Order, after the 13th defendant on Illinois’ death row was released, including several cases in which the defendant had “confessed” 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:

 

Š          Those that make recordings a regular practice describe their experiences in glowing terms.  For a variety of reasons, they enthusiastically support the practice. 

 

Š          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.

2. The growing acceptance of electronic recordings

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:

 

Š          Recording statutes have been enacted in nine states[11] and the District of Columbia. 

 

Š          Recent rulings of three state supreme courts[12] have resulted in statewide recordings.

 

Š          Thus, 14 states now require that electronic recordings be made of custodial interviews of felony suspects in various categories of felony investigations. 

 

Š          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.

 

Š          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] 

3. The evolution of law enforcement attitudes

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 “rapport” 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 “rapport building” 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 “all custodial interrogations of suspects and interrogations of suspects conducted in places of detention.”[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 “outsiders.”  A pattern often emerges when new ideas of how to “do business” are presented to those who have been become accustomed to their own “tried and true” 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.

4. The experiences of those involved in state criminal justice systems with electronic recordings of custodial interrogations. 

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.

5. Public perception of law enforcement

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.

6. Sanctions for non-recorded custodial interviews

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] 

7. Unrecorded false confessions

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 coercion…. 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/confessor’s innocence was proven by an ironclad alibi, the detective reviewed the videotape of the interrogation, and saw how he and his fellow detectives had “unintentionally fed [the suspect] details” of the crime that the suspect “was able to parrot back” to the detectives.[24] 


8. Costs incurred and saved attributable to electronic recordings.

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 “on the books.” 

 

Here are the major costs:

 

Š          Purchasing, installing and maintaining audio and/or video equipment.

Š          Preparing/constructing interview rooms, perhaps with soundproof walls.

Š          Training officers in the use of equipment and techniques of conducting recorded interviews.

Š          Officers and prosecutors reading transcripts and/or viewing tape recordings.

Š          Preparing typewritten transcriptions of recordings.

Š          Preparing recordings for use/display in courtrooms.

Š          Storing cassettes, compact discs and related digital equipment.

Here are the major savings:

 

Š          Police preparing for, attending and testifying regarding unrecorded interviews at pretrial motions to suppress, trials, and post-conviction hearings.

Š          Prosecutors preparing police to testify regarding unrecorded interviews, and examining them at pretrial motions to suppress, trials and post-conviction hearings.

Š          Prosecutors preparing to cross examine, and cross examining, defense witnesses regarding unrecorded interviews.

Š          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.

Š          Avoiding state court appellate proceedings, and federal habeas corpus proceedings, related to the foregoing.

Š          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. 

Š          Saving premiums for law enforcement liability insurance.

9. Federal investigative agencies, still in the stone age

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 “recording” what was said and done during custodial interviews, clinging stubbornly to outmoded “scribble and type” 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 agencies’ 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 agents’ 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.

Conclusion

 

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 INTERROGATIONS
1

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

Broward CS

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 d’ 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

O’Fallon 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 author’s 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-Changin’ (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: Nat’l Ass’n 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 Officials’ 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); Nat’l Lawyers Ass’n Annual Convention and Educ. Conf., Chicago, IL (July 2003); Nat’l Defender Investigator Ass’n Midwest Reg’l Conf., St. Louis, MO (Sept. 2003); Wis. Avery Task Force (Apr. 2004); Ill. Defenders Ass’n Spring Seminar, Urbana, IL (May 2004); State Legis. Leaders Found., Chicago, IL (June 2004); Northwestern Univ. Sch. of Law, Short Course for Prosecuting Att’ys, Chicago, IL (July 2004); Nat’l Ass’n of Criminal Def. Lawyers, San Francisco, CA (July 2004) and Portland, OR (Aug. 2005); Justice Mgmt. Inst., Am. Judicature Soc’y (AJS), Chapel Hill, NC (Dec. 2004); Hennepin County Att’y’s 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); Nat’l Inst. of Justice Nat’l Conf., St. Petersburg, FL. (Sept. 12-14, 2005); Idaho Ass’n of Criminal Def. Att’ys Annual Meeting, Sun Valley, ID (Mar. 2006); Cyril H. Wecht Inst. of Forensic Sci. and Law and Duquesne Univ.’s Symposium, Pittsburgh, PA (Apr. 20-22, 2006); Cal. Comm’n on the Fair Admin. of Justice, Los Angeles, CA. (June 2006); Ctr. for Am. and Int’l Law and AJS Program, Plano, TX. (Aug. 17-18, 2006); Int’l Ass’n of Chiefs of Police, Annual Meeting (Oct. 2006); Nat’l State Legislators’ Conf., Washington, DC (Dec. 2006); Mich. Ass’n 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 Ass’n of Criminal Def. Lawyers Annual Conf., Des Moines, IA (Nov. 2007); Ctr. for Am. and Int’l Law, Plano, TX (Aug. 2008); Nat’l 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 “street crimes” suspects are indigent, and voluntarily waive these rights.

[15] Commonwealth v. DiGiambattista, 813 N.E.2d 516, 533-34 (Mass. 2004). 

[16] Mass. Dist. Att’ys Ass’n, 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 Officials’ 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 Don’t Tell Me It Doesn’t 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 “cooperating individuals” routinely use recorded personal and telephone conversations and videotapes to depict suspects’ 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 defendant’s argument that she had a constitutional right to have the police make a complete recording of her custodial interview.  However, the Court stated, “we 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.”  Clark, 374 Ark. at 304.

 

[iii] In 2008, the Connecticut General Assembly instructed the Advisory Commission on Wrongful Convictions to implement a “pilot program to electronically record the interrogations of arrested persons” 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 Comm’n 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: “The 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.”

 

[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 Association’s publication:  “Although the court stated that it is ‘encouraging’ the practice of electronic recording, the attorney general’s office believes that the Hajtic decision should be interpreted as essentially requiring this practice.”  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 “reasonable efforts” to create a recording of custodial interviews of suspects in connection with cases involving named felonies “whenever possible.”  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 Ass’n wrote in a Sept. 2006 Justice Initiative Report:  “Law enforcement officers shall, whenever it is practical and with the suspect’s knowledge, electronically record all custodial interrogations of suspects and interrogations of suspects conducted in places of detention.”  The Chiefs of Police Ass’n, District Attorneys Ass’n and State Police distributed a “Sample Policy and Procedure” (No. 2.17) to law enforcement agencies throughout the state, which states, “It 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.”

 

[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 defendant’s unrecorded oral statement is inadmissible unless the statement “contains assertions of facts or circumstances that are found to be true and which conduce to establish the guilt of the accused.”  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 suspects’ 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.