Recording Interrogations

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A couple of sessions ago, the General Assembly enacted G.S. 15A-211, which requires that custodial interrogations in homicide cases be recorded. The idea is to “eliminate disputes about interrogations,” id., and particularly, to prevent and record any coercion by law enforcement that might result in a false confession, and to prevent false claims of coercion. It was probably inspired in part by some high-profile false confession cases around the country, including the Central Park jogger case, which you can read about here. Although some experts believe that false confessions are particularly common in homicide cases, because the pressure on both the police and the suspect is so high in such cases, the Central Park jogger case wasn’t a homicide. That raises the question, if recording is a good idea for homicides, isn’t it a good idea for other crimes, too?

Apparently at least some members of the General Assembly think that the answer is yes, because they’ve just introduced a bill that would expand the recordation requirement to include all B1, B2, and C felonies. See HB 162. Also pending before the General Assembly is proposed legislation that would require recordings in homicide cases to be audiovisual, where currently, they may be “audio” or “visual.” G.S. 15A-211(c)(1); see HB 33. Collectively, these two bills suggest that current G.S. 15A-211 is just the tip of the wedge, and that we may see continued expansion of the recordation requirement over time.

The purpose of this blog, like the purpose of the School of Government generally, isn’t to take sides on controversial and unsettled issues. Rather, it’s to provide information and context (and to provide a forum for discussion, but more on that in a minute), and there are at least two pieces of context worth thinking about in connection with the recording of interrogations. First, a number of other states require at least some interrogations to be recorded. Whether by statute or court decision, about a dozen other states have some such requirement, though the scope of the requirement varies widely from jurisdiction to jurisdiction. Second, there is not a great deal of empirical information available about false confessions, and the information that is available is not consistent. The Innocence Project says here that “some form of a false confession” has been present in about 25% of the DNA exoneration cases they’ve handled, while conservative scholar and former federal judge Paul Cassell argues here that the frequency of false confessions is overstated, and that such confessions are concentrated among people with mental disabilities.

I’m especially curious to have some feedback from people who have had some experience with the current recordation law. Is it being followed? Are suspects less likely to talk because of it? How is it playing out in court? How the current law is working should be an important piece of the discussion about the new proposed legislation, but I’m not aware of any attempt to collect that information systematically. Not that asking for comments on this blog is “systematic,” either, but at least it’s a start!

One comment on “Recording Interrogations

  1. There is nothing known to man that will make a criminal defendant less likely to confess. The video recording is no different.

    The recording is being followed, at least in the cases I’ve worked on.

    Here’s my 2 cents (from Defense perspective):

    Positives: (1) Perhaps detectives are more likely to follow the rules when the camera is on, but its pretty easy to turn it off or soften up a defendant before the video and its the same he-said she-said, criminal defendant versus police officer (so criminal defendant loses) story that has always been there. (2) The nice things are the gems that nobody was bothering to write down before. Cops putting words in the defendant’s mouth, mischaracterizing what is said, or explicitly making offers are right there on tape, which is very nice.

    Negatives: (1) the amount of time necessary to view and transcribe (so they can be usefully used) these statements is enormous. In one case, I got 40+ hours of video interrogation. Also, there are constant formatting problems, and some video’s I’ve seen were placed into an inscrutible, difficult to use format. For example, one case there was a digital video that you could press play and watch from beginning to end, but couldn’t pause, rewind, fast forward, or go to a later point. This made it impossible to transcribe and impossible to use in court, creating additional discovery fights and the need to employ computer experts to transform this into a useful form. (2) Nothing worse than a jury seeing your client confess to doing something horrible with no emotion.

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