One would think there would be no need for the New York Times to publish an op-ed arguing for the virtue of recording police interrogations. After all, the problems of false confessions as proven by subsequent DNA exonerations, exposing the manipulative questioning using the highly effective Reid Technique, have left us without any doubt of the need.
With the ubiquitous presence of cellphones, that record every burp of humanity, how can there be any doubt that recording interrogations, and the confessions that follow, is critical to sound evidentiary practice and the legitimacy of the confession? Indeed, there isn’t. And there wasn’t a decade ago.
Except, of course, the one aspect that troubled law enforcement, that the public might not appreciate the means necessary to compel a defendant to admit his guilt. To cops, it was what needed to be done. To the unwary lay juror, it might look a bit too unsavory for their untrained tastes. Almost a decade ago, when Prawf Brandon Garrett explained the necessity of recording interrogations in the New York Times, this was laid bare.
Yet, here we are, a decade later, and it’s déjà vu all over again.
New York now requires the police to record the entire interrogation for serious crimes. But half the states have no such requirement, leaving the most critical of police procedures a mystery to prosecutors, judges, juries and the public alike.
Justice requires that all police interrogations — the entire process, not just the final confession — should be recorded on video.
Why interrogations should be recorded no longer requires an impassioned argument about “justice.” We know why. We know that false confessions happen. We know how cops feed information about crimes to the people being interrogated, who then regurgitate it as if to show they possess secret information about the offense which only the perp could know. We know how they wear people down, particularly vulnerable people, and get them to admit to things just to get out of the windowless room.
And didn’t New York reform its law to require the recording of interrogations? Kinda, but not really. This is the buried lede here. Not that recording is good and necessary, which hasn’t been an issue in a long time, but that the claim of reforms, as if we’ve solved the problem at least in New York, presented as if it’s a done deal, reflects the lies reformers tell themselves and why today, a decade later, little has changed.
Note the link in the blockquote above, which goes to Gov. Andy Cuomo’s self-serving press released about what a great crim law reformer he is.
“Recording interrogations can be critical in helping convict the guilty, free the wrongly accused and uphold faith and confidence in our criminal justice system,” Governor Cuomo said. “I’m proud that this hard-fought reform is now in effect, bringing us one step closer to a more fair and more just New York for all.”
Makes one’s chest swell with pride at the sheer justice of it all. Except the actual law, Criminal Procedure Law § 60.45, isn’t linked, either in Saul Kassin’s op-ed or Andy Cuomo’s self-congratulation. The problem is that the law, the reform, this great accomplishment worthy of celebration and congratulations, isn’t remotely what it purports to be.
Where a person is subject to custodial interrogation by a public servant at a detention facility, the entire custodial interrogation, including the giving of any required advice of the rights of the individual being questioned, and the waiver of any rights by the individual, shall be recorded by an appropriate video recording device….
It only covers custodial interrogations made at a “detention facility.” Most custodial interrogations happen on the street or in the back of the RMP. That’s not covered.
…if the interrogation involves a class A-1 felony, except one defined in article two hundred twenty of the penal law; felony offenses defined in section 130.95 and 130.96 of the penal law ; or a felony offense defined in article one hundred twenty-five or one hundred thirty of such law that is defined as a class B violent felony offense in section 70.02 of the penal law.
It only covers a handful of “violent” class A or B felonies, leaving the vast majority of felonies out of the mix. Granted, we tend to get far more worked up over spectacular murder convictions, but the guy who confessed and ended up with the same sentence for a drug A-1 felony doesn’t feel better about it.
But then comes the real kick in the pants.
No confession, admission or other statement shall be subject to a motion to suppress pursuant to subdivision three of section 710.20 of this chapter based solely upon the failure to video record such interrogation in a detention facility as defined in paragraph (a) of this subdivision. However, where the people offer into evidence a confession, admission or other statement made by a person in custody with respect to his or her participation or lack of participation in an offense specified in paragraph (a) of this subdivision, that has not been video recorded, the court shall consider the failure to record as a factor, but not as the sole factor, in accordance with paragraph (c) of this subdivision in determining whether such confession, admission or other statement shall be admissible.
Forgot to record that murder confession made in a “detention facility”? Oopsy. But don’t get too bent out of shape, as it doesn’t mean the suppression must be suppressed. It’s a factor, but not the sole factor, and doesn’t mean the confession won’t be admissible.
Then comes a laundry list of good excuses for failing to record.
Good cause shall include, but not be limited to:
(i) If electronic recording equipment malfunctions.
(ii) If electronic recording equipment is not available because it was otherwise being used.
(iii) If statements are made in response to questions that are routinely asked during arrest processing.
(iv) If the statement is spontaneously made by the suspect and not in response to police questioning.
(v) If the statement is made during an interrogation that is conducted when the interviewer is unaware that a qualifying offense has occurred.
(vi) If the statement is made at a location other than the “interview room” because the suspect cannot be brought to such room, e.g., the suspect is in a hospital or the suspect is out of state and that state is not governed by a law requiring the recordation of an interrogation.
(vii) If the statement is made after a suspect has refused to participate in the interrogation if it is recorded, and appropriate effort to document such refusal is made.
(viii) If such statement is not recorded as a result of an inadvertent error or oversight, not the result of any intentional conduct by law enforcement personnel.
(ix) If it is law enforcement’s reasonable belief that such recording would jeopardize the safety of any person or reveal the identity of a confidential informant.
(x) If such statement is made at a location not equipped with a video recording device and the reason for using that location is not to subvert the intent of the law. For purposes of this section, the term “location” shall include those locations specified in paragraph (b) of subdivision four of section 305.2 of the family court act.
Yet, here we are, making the same grand arguments for why recording interrogations is a good idea, using New York’s “requirement” as the poster boy for how reform should be done, without so much as a mumble to note that this monumental reform is a huge, steaming pile of crap, even if the activists threw themselves a big party for accomplishing it.