Yesterday, I posted about lawprof Charles Weisselberg’s new article, Mourning Miranda.  Gideon  also posted about it, and brought up the subject of videotaping confessions.  This has been the growing trend to resolve the issues of improper confessions, and many have viewed this as a panacea.  I don’t.

The initial resistance to videotaping confessions comes from law enforcement.  The primary problem there is logistical; they will need to pay the cost for the equipment and its maintenance and they will need to adjust their approach to actually use the equipment.  There is the institutional resistance to change, and there is the hard problem of putting every perp in a room with a camera to record the statement.  They don’t have that many rooms, and when the perp wants to talk, who are they to tell them, “No, no.  You have to wait until we can videotape you.”

My problem is different.  As with Miranda, not to mention so many other safeguards for the preservation of constitutional rights that have been turned upside down to be used as a weapon against defendants, I can see the use of videotaped confessions as a nightmare, easily manipulated and nearly impossible to overcome. 

First, we have to bear in mind that any effort to protect defendants from abusive tactics will be met with a vigorous effort to circumvent the protection, and then develop ways to use it as a tool against the defendant.  Videotapes seem particularly susceptible to this, even more so than Miranda warnings.

The interrogation begins the moment the cop faces the defendant.  It starts on the street, in the cruiser, during the walk into the precinct.  It goes on during booking and fingerprinting. It happens while they get the defendant a glass of water, a cheese sandwich, or let him use the bathroom.  Interrogation is far more than the old Q&A under a hot white light. Every aspect of police-civilian interaction is designed to make a defendant talk.  And talk they do.

By the time a defendant is seated in a room with a video camera rolling, the cops have long-since completed the psychological pressure necessary to undermine the defendant’s free will.  In many cases, they have already obtained the statement, and the video will record it’s repetition, but without the manipulative aspect.  But no one will ever see that part of it, and the cop will deny any effort to get the defendant to talk. 

When a defendant is sitting in that video room in the precinct, 5 hours after his arrest, he’s not going to look very good.  We may dress him up for trial, perhaps just like he was dressed up the moment before the cops pinched him, but nobody ever looks good in a police precinct (except Tom DeLay).

Appearances aside, the defendant’s mind is racing.  What should he do?  If he says the right thing, maybe they will let him go.  Maybe because he’s innocent.  Maybe because he’s not.  But who knows?  There will be no video of the psychological pressure put on the defendant as he is walked from the police cruiser or holding cell into the interrogation room.  Did the cop tell him, “Hey, just admit to it and we’ll let you go right away.  We want the big guy, not you.”  In that moment of desperation, will the defendant buy it?  They often do.

But the flip side of the videotaped statement is that part that puts the final nail in the coffin.  We are a TV culture.  We are moved by the sight and sound of what really happened at the end of every hour-long drama.  Our doubts are put to rest, and we believe whatever is on the tape.  Testimony is crap; the tape tells all.

Do you doubt this?  In a recent trial, the police taped the third contact with a defendant, stating that the first was initiated by the defendant (and hence not taped), the second wasn’t taped because they had no machine, and the third was taped when the machine was finally available.  By the time the third contact was taped, everything was said and done, and it was now just a matter of creating confirmatory evidence.

It was argued to the jury that the tape not only failed to confirm what had already happened, but was affirmatively misleading.  It provided nothing to show how the defendant was manipulated in the first place, or how the defendant’s purpose shifted after he had already been subject to the manipulation, fell into the trap, and now sought to obtain the benefit promised by the cops to get him to succumb in the first place.  The third tape was ugly and incredibly damaging. 

In post-trial discussion, the jurors acknowledged that there was likely something to the defendant’s point, but they just couldn’t ignore the tape.  There was a tape!  They couldn’t get past it.

If videotaped statements become the rule, there are a few things we can bank on.  First, the cops will be on their best behavior on camera.  Second, it’s their house and their rules, and they will set it up to serve their purposes.  Third, it will never show everything that matters.  Fourth, it will be nearly impossible to overcome.

Sure, there will be the occasional cop who does something mind-boggling stupid on camera, just as they do now.  But with more practice, they’ll get better at it.  And if videotapes become the norm, we’ll never get rid of them and find ourselves arguing the same points of impropriety, but the harm will be much worse.  No, I don’t think videotaping statements is the answer.

Updated:  Gideon disagrees with me, and thinks that videotaping, while not perfect, is still better than we have now.