In connection with some teaching that I have coming up, I’ve prepared a short outline summarizing the law of interrogation. It’s available as a PDF here. It covers voluntariness, Miranda, and the Sixth Amendment right to counsel, plus the recording requirements of G.S. 15A-211, including the statutory amendments that took effect on December 1. I wrote it with judges and lawyers in mind, but I tried to keep it free of mumbo jumbo so that officers would also be able to use it. As always, I welcome your feedback.
Tag Archives: recordation
It seems that video cameras are everywhere, these days: at the bank, at every youth soccer game, in jails and prisons, at Wal-Mart. One often-cited (but apparently questionable) statistic suggests that Londoners are caught on camera 300 times per day. Americans, too, are videotaped frequently. Some of the cameras belong to police departments, who often use federal homeland security money to purchase them, while others belong to businesses and individuals. And some events are required by law to be videotaped. For example, G.S. 15A-284.52(b)(14) requires that live lineups be recorded. Likewise, G.S. 15A-211 requires that custodial interrogations in homicide cases be recorded (though it allows audio or video recording).
Whatever your views about the prevalence of video cameras or the law’s recording requirements, one thing is clear: the number of cases in which recordings are important evidence will continue to increase. I may post later about the foundation that must be established in order for such evidence to be admissible, but today, because the Court of Appeals recently decided State v. Miller, a case on point, I’m going to write about the hearsay issues that arise when recordings are introduced.
Let’s start with an easy example: Ollie Officer suspects Dan Defendant of murder. Ollie asks Dan to come in for an interview, and Dan agrees. Ollie records the conversation. Dan makes incriminating remarks, and at his subsequent trial, the state seeks to introduce the recording. Dan objects, acknowledging that his statements fall within Rule 801(d)’s exception for statements by a party opponent, but arguing that Ollie’s questions are hearsay. How do you rule?
If you overruled the objection, give yourself a point. Ollie’s questions are not hearsay because (1) they are not “statements,” they’re questions, and (2) they are not offered to prove the truth of the matter asserted — they’re offered to explain and provide context for Dan’s responses.
The next question is harder. Suppose that during the conversation, Ollie asked Dan whether he had a blue car (the type of vehicle an eyewitness saw leaving the scene of the crime), Dan said no, and Ollie responded that he’d been by Dan’s house the day before and saw him washing a blue car. Dan then “remembered” that he did, indeed, own such a car. Dan objects to playing the portion of the video that includes Ollie’s statement about his trip to Dan’s house. What do you say, Your Honor?
If you overruled this objection, too, give yourself another point. Ollie’s statement (not a question, in this example) still isn’t being offered to prove the truth of the matter asserted, it’s just providing context for Dan’s response. If you issued a limiting instruction, advising the jury that any statements made by Ollie should not be considered as evidence of the truth of what he said, give yourself a bonus point.
Now we’re in advanced territory. What if Dan tells Ollie something that a third party said, e.g., “your girlfriend, Wanda Witness, says that you admitted the killing to her?” Now do we have a hearsay problem? The Miller court said no: “[T]he purported statements of co-defendants and others that were contained in the detectives’ questions were not offered to prove the truth of the matters asserted therein but to show the effect they had on defendant and his response.” There is some limit to this principle, though. If the state appears to be more interested in admitting the third parties’ statements than in Dan’s response, courts will find a hearsay problem. See, e.g., State v. Canady, 355 N.C. 242 (2002).
Finally, what if Ollie tells Dan something false, like “we have your fingerprints on the murder weapon”? Is the recording still admissible? Now the answer is probably no, at least not without redaction. This isn’t a hearsay problem — Ollie’s false statement certainly isn’t being offered for the truth of the matter asserted — but it is a prejudice problem under Rule 403. As the Miller court put it “the questions police pose during suspect interviews may contain false accusations, inherently unreliable, unconfirmed or false statements, and inflammatory remarks that constitute legitimate points of inquiry during a police investigation, but that [are] inadmissible in open court.” Such material should be redacted, or edited out, before a recording is presented to a jury.
Let me know if there are recurrent scenarios about hearsay and redaction that I didn’t address, and I’ll try to address them. And, as always, let me know if you disagree with my analysis.
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!