For years, one of the rallying cries of the defense bar and criminal justice advocates has been to require recording of interrogations. That would prevent a laundry list of ailments, from coercive questioning that led to false confessions to revelation of police duress that would show how a defendant’s free will was overcome. The jury would then be able to see how the sausage was made, for better or worse. Yes, that would fix the problems.
I was never quite so sanguine.
Whether it’s videotaped confessions, or double-blind sequential line-ups, we insist that this will “fix” the system. They may well improve things, at least until law enforcement figures out a way to use it against us. But our expectations in magic bullets has no better chance of being the fix than did those 9 squad car cameras have of showing the reporter being subjected to excess force.
It’s not the procedures or the equipment that makes things go terribly wrong. It’s the people, the judges, prosecutors and police. It’s the criminal defense lawyers as well, who lack the nerve to fight the good fight. No one has come up with a magic bullet that will change the people.
As usual, I was excoriated for being the wet blanket on an idea that everyone decided was fabulous. But I saw the devil in the details, how this panacea for the defendant could be used as a sword instead of a shield. Threaten and beat him first, off camera, until you get what you want, then record a second, sanitized version to spoon feed the jury. It will be impossible to refute, because there it is, in all its video glory, the confession, clean as a whistle.
After years of complaining about the FBI’s hated policy not to record interrogations, they flip-flopped and will now record them. Hooray for us? Because the FBI would never alter its policy that served it so well because they finally figured out how to use it for their own advantage?
But science has a way of teaching us simpletons that not even our fertile imaginations can capture the full scope and depth of problems we ignored when we advocated for a change. And as it turns out, this is just as true for recorded interrogations as it is for, say, duct tape analysis. From the New York Times:
Supporters of the practice present recordings as a solution for a host of problems, from police misconduct to false confessions. But while there are lots of good reasons to require them, they are hardly a panacea; in fact, the very same qualities that make them useful — their seeming vividness and objectivity — also risk making them misleading, and possibly even an inadvertent tool for injustice.
Given this chorus of support, what’s not to like?
The short answer is that, according to recent research, interrogation recording may in fact be too vivid and persuasive. Even seemingly neutral recordings still require interpretation. As advertisers and Hollywood directors know well, camera angles, close-ups, lenses and dozens of other techniques shape our perception of what we see without our being aware of it.
And testing was done to ascertain how the perception of recordings could be altered or manipulated by the manner in which it was done.
Professor Lassiter and other psychologists have consistently shown this “camera perspective bias” across a substantial series of experiments, finding in one study that even professionals like judges and police interrogators are not immune.
Experiments like these feed a larger concern: whether the police, prosecutors, defense lawyers, judges or jurors can actually tell the difference between true and false confessions, even with the more complete record of interactions that recorded interrogations provide.
Before interrogations were recorded, we have the ability to argue that the testimony being offered the jury was through the filter of law enforcement. It wasn’t much, but it was a rational argument that the police, if not liars, were at least biased in their view, understanding and perceptions. Now that we have recordings, the jury can see it for themselves. Who you gonna believe, the defense or your lying eyes?
Radley Balko took this research a bit orthogonal in considering its implications for other problems we’re busily trying to solve.
There’s an interesting question here in what we do with this sort of research. The criminal justice system has long been slow to recognize and account for cognitive bias. For example, scientific research dating back more than a century has shown that eyewitness testimony is heavily susceptible to suggestion, misinformation and other errors. A few simple steps police and prosecutors can take drastically improve eyewitness testimony, at little to no added cost. But implementing those reforms will almost certainly mean fewer eyewitnesses testifying in court, which would make it more difficult to win convictions. Consequently, it’s been a chore getting police agencies and DA offices to adopt them. The U.S. Supreme Court hasn’t helped. In 2012, the court declined to make the reforms mandatory.
Despite having written of a parade of horribles, from puppycide to chicken-killing tanks, there is still a charming naiveté in Radley’s writing, as if the government wants to show greater concern for protection of wrongly prosecuted individuals than the efficacy of its prosecution. When the FBI agrees to acquiesce in recording interrogations, could it be because they have come to realize that they can artfully use them more effectively?
This isn’t to suggest that recording interrogations is a bad thing, but just not the magic bullet that too many have believed it to be. As with every fix, it carries with it the risk of new, perhaps worse, problems when not comprehensively considered and fully conceived to overcome the latest and greatest mechanisms for abuse and mistake.
There is a saying, “perfect is the enemy of the good.” The argument is that recording interrogations may not be perfect, but it’s better than not recording them. Fair enough. But this is just the start of the battle for a more accurate, more truthful, solution. We have not yet won the war against coercive interrogations and false confessions. The battle goes on.