No one can say that Long Island isn’t on the cutting edge anymore. Not that anyone cared much before, but Newsday announced that the Nassau County Police Department, with Suffolk County taking up the rear, has jumped on the videotape bandwagon. As anticipated, the simplistic assumptions brought smiles to the editorial board’s faces:
For suspects, it will most certainly help ensure that the wrong person isn’t convicted while the guilty one slips away. And for those who are wrongdoers, the documentary evidence will enhance the chances of conviction, because jurors are less likely to be swayed by false claims of police misconduct if they can see what actually took place.
That this will “most certainly” prevent the wrong person from being convicted is a very strong statement. And no doubt it will help in some cases, where the existing method of telling the jury “what really happened” is the cop’s memory of what a defendant said. Assuming the best of cops, memories can be flawed. Assuming the worst, words can be change, or even fabricated from whole cloth.
A common complaint of defendants is that “I never said that.” Well, now we may know. But “may” is the operative word, as cops will tell you that suspects say things all the time in all different places, some of which will still lack the video camera to record the Hallmark moment. Whether it’s at a crime scene, or where the cops first confront the suspect, or in the back seat of a cruiser, those statements will still be admissible in evidence because it’s not the cops’ fault that the suspect spilled his guts at a time when there was no camera available.
But the trick will be capturing statements from the defendant who enjoyed a little speech while riding to the precinct. Remember the Christian Burial case? When the suspect arrives at the station, having already spilled the beans upon artful questioning in the cruiser, the videotaped confession will appear pristine and overwhelming. No need to persuade the defendant to talk in front of the camera when he’s already let the cat out of the bag when there was no camera around.
From the lawyer’s point of view, there’s little we can do with a videotaped confession. It’s all there in living color. There will be nothing left to say. When it was the cop’s word against the defendant’s, we had options. With a video, there are none.
Is the idea a terrible one? No. It will likely work well in some case, and when defendants either fall short of confession, police overreach or the words spoken are in question, a videotape could spell the difference between a jury having to choose between a cop’s memory of the statement and a definitive video of the statement.
Does this put an end to the problems with statements? No. There will still be a list of problems, ranging from coercion outside the camera’s view to videotaping of only a portion of significant communications between police and suspects, to creating conclusive proof of guilt while concealing the methodology of how a defendant was moved to speak. There will still be problems.
But no experienced lawyer doubts the impact of a video, especially in our TV society when we put absolute faith in what we can see and hear for ourselves, and discount anything that might have happened off-camera. Some will point to the occasions when it helps to prove this is a great idea. Some will point to the occasions when it hurts to prove otherwise. Some, like me, will see it as a new toy in the arsenal of law enforcement, and believe that it’s only a matter of time before law enforcement perfects its manipulation of this new weapon to turn it on its head whenever it can.
While some call me a pessimist, and argue that I would rather curse the darkness than try new technologies which, while imperfect, hold great potential to do better than we are doing now, you’re not entirely wrong. Taping statements likely can and will help more than it will hurt, and for that reason it is worth a try. Still, I feel compelled to pound the table a bit to remind people that this is not a magic bullet and will create new problems while simultaneously creating irrefutable proof against defendants.
As long as the imperfections remain part of the discussion, and people aren’t sold, as the Newsday editors apparently are, on this new toy being the panacea, then I support the idea. But when I read an editorial so clearly misapprehending this imperfect tool, I can’t help but harbor fears that the public will deem these videos indisputable, and that will be the end of the discussion, and the case.
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I Know that this is fantasy land, but I would, if I were in charge, make all confessions inadmissible. There is too much danger of false confessions, there is too much danger of hidden coercion, and confessions are taken much too strongly – they just about guarantee conviction.
I’d say that if you want a confession in evidence, the only place it is admissible is if it comes out of the defendant’s mouth while he is testifying. Anything else is just plain inadmissible. Yeah, I know, I’m dreaming.
Well, it is fantasyland, but it’s not a new fantasy; goes back to the Mishnah, I think. (And since no man can bear witness against himself . . . )
To undigress . . . while I think that ubiquitous taping is likely to do more good than bad (from my own perspective), Scott isn’t necessarily looking into the future when he argues that there will be costs; looks into the past work just fine, too.
When did POST Skills training start teaching baby cops to shout, “Stop resisting!” for example?
Troopers in Alaska record ‘all’ encounters using a small audio recording device in their front shirt pocket. The first thing the defense gets is the police report and a copy of the tape – sometimes oddly truncated? All in all I really liked the system. With our current 4th amendment jurisprudence, listening to the tapes was like a little crim pro issue spotter: there always seemed to be at least one colorable 4th amendment issue if you listened hard enough. The tapes certainly hurt when clients went on rants and raves, or confessed, but I think on the whole they’re good for defendants.
That’s an interesting variation on the theme. Are there claims of unrecorded communications? What happened when the “oddly truncated” tapes show up? If the cops adhere to the policy, this may be a better solution than just recording stationhouse interrogations.
There is no per se rule excluding unrecorded evidence or creating presumptions against officers when their tapes run short (most typically starting late). Instead the sanctions are to be determined by the trial judge after considering the surrounding circumstances. While this standard is flimsy, judges are receptive to arguments of impropriety – largely I think because the audio recorders are nearly foolproof and officer excuses therefor seem disingenuous. In example, I had an audio begin with miranda, followed by some damaging admissions. I argued that this looked (sounded) a lot like midstream miranda, and the judge threw out the admissions.
The tapes are more often than not complete and, I think, appreciated on the whole by both sides.
We have two departments who have similar policies/devices here; one willingly and one by consent decree. I think they are extremely helpful and also believe that because of the belt recorders, the officers of those two departments are _FAR_ more likely to do things properly than officer’s of other departments who learn they can cut corners and fudge things for efficiency or the strength of the case with impunity.