Crimes, Truth and Videotape: Mandatory Recording of Interrogations at the Police Station
by Walter F. Bugden, Jr. & Tara L. Isaacson
It is time for the Utah Supreme Court to exercise its supervisory power to require videotaping of custodial interrogations of juvenile and adult crime suspects. This requirement should be imposed when the questioning occurs at a place of detention where videotaping equipment is available. If video recording is unavailable, an audio recording should be required. The videotaping requirement should only be excused when impracticable, and the failure to do so, excusable. Requiring electronic recording when the questioning occurs at a place of detention will provide courts the means to develop a complete, accurate, and objective record on the voluntariness of a confession. With the simple flip of a switch, the courts can be provided with a record of everything that transpires during a custodial interrogation. Recording is a reasonable safeguard which will ensure the protection of an accused's right to counsel, right against self-incrimination, and his or her right to a fair trial. Recording will also protect law enforcement from false claims of coercion and improper conduct.
I. FALSE CONFESSIONS
Confessions by juveniles and adults are "universally treated as damning and compelling evidence of guilt [that] is likely to dominate all other case evidence and lead a trier of fact to convict the defendant."1 It is difficult for most people to understand why an innocent person would falsely confess to a crime. However, a combination of interrogation techniques, overzealousness, the length of the interrogation, isolation, police trickery and deception, and threats and promises can manipulate a rational person to rethink his denial of criminal responsibility and falsely admit guilt. Juveniles and mentally challenged suspects are the most vulnerable to psychological interrogation techniques.2 When police induced false confessions occur, they can lead to miscarriages of justice.
The Central Park jogger case brings home the stark reality of false confessions. People v. Wise, 752 N.Y.S.2d 837(N.Y. Sup. 2002). All five defendants implicated themselves as accomplices to a rape that was committed by someone else. Id. at 843. In this infamous case, five juveniles were convicted and sent to prison for the brutal rape of a young woman jogging through Central Park. Id. at 840. "Police interrogated each of the five youths separately, keeping them in custody at the Central Park Precinct for more than twenty hours before turning on the cameras for their confessions."3 All five teens were convicted despite the fact that neither the blood nor the semen found on the victim matched any of the juveniles. Id. at 845. Each juvenile confessed after several hours of interrogation. However, in each case the confessor pointed the finger at one of the other teen co-defendants rather than implicating himself. Id. at 845-846. Moreover, none of the juveniles provided accurate descriptions of where the attack took place. Id. at 846. Even though there was no physical evidence and there were inconsistencies and gaps in the "confessions," the jury convicted the juveniles.
More than twelve years later, the Manhattan District Attorney, Robert Morgenthau, asked the court to overturn the convictions after a convicted rapist, Matias Reyes, confessed. Id. at 843-44. Reyes' confession was corroborated by DNA evidence proving that he was the rapist. Id. at 844.
The convictions are a prime example of the compelling and damning impact of a confession on a jury. A jury easily overlooks discrepancies between the evidence and the confession. False confessions are real and can result in miscarriages of justice.
II. ADMISSIBILITY OF CONFESSIONS
The State bears the burden of showing that an accused gave a valid waiver of his Miranda rights prior to making incriminating statements during custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 475 (1966). In making this determination, courts look at the totality of the circumstances. State v. Hunt, 607 P.2d 1297, 300 (Utah 1980). On appeal, a trial court's finding of a valid waiver of Miranda rights is granted some degree of discretion. State v. Leyva, 951 P.2d 738, 741 (Utah 1997).
After determining a valid Miranda waiver has occurred, the courts are then called upon to determine whether a confession was involuntary, unreliable, and a product of coercion. If a confession was involuntary, its admission violates the defendant's due process rights under the Fourteenth Amendment of the United States Constitution, and Article I, Section 7 of the Utah Constitution. Under the totality of circumstances test, courts must consider such external factors as the duration of the interrogation, the persistence of the officers, police trickery, absence of family and counsel, as well as threats and promises made to the defendant by the officers. Moreover, the defendant's mental health, mental deficiency, emotional instability, education, age, and familiarity with the judicial system are additional factors which must be considered.4
Coercive police activity is a necessary predicate to a finding that a confession is involuntary. Colorado v. Connelly, 479 U.S. 157, 167 (1986). However, police do not need to engage in flagrant misbehavior in order to be coercive. "Rather, subtle pressures are considered to be coercive if they exceed the defendant's ability to resist. Accordingly, pressures that are not coercive in one set of circumstances may be coercive in another set of circumstances if the defendant's condition renders him or her uncommonly susceptible to police pressures." In Re Jerrell, 699 N.W.2d 110, ¦19 (Wis. 2005) (citation omitted). Since the police conduct itself is inextricably intertwined with the determination of the voluntariness of a statement, it should hardly be surprising that the police are not likely to admit that they engaged in a host of coercive tactics.
III. CREDIBILITY CONTESTS; DEFENDANTS LIE, POLICE OFFICERS TELL THE TRUTH
Motions to suppress are seldom won when the defendant must persuade the trial court that he, and not the police officer, has told the truth. Instead, when defendants prevail at motion hearings, they do so most often when the judge accepts as true every word spoken by the police, but still concludes that the undisputed facts permit ruling in favor of the accused.
The judicial pronouncement delivered to the jury during voir dire that the testimony of a police officer is to be given no greater weight than the testimony of any other witness is seldom observed by the same judge when called upon to decide a suppression motion.5 Instead, there is an unspoken bias that guides the judge when he or she serves as the trier of fact in the credibility contest between the testimony of a police officer and the testimony of the accused. Could it really be true that the testimony of a police officer is invariably more credible than the testimony of the defendant? One only needs to remember the words of Justice Jackson in Johnson v. United States, 333 U.S. 10 (1948), to recognize that police have both a bias and an investment "in the often competitive enterprise of ferreting out crime." Id. at 14. Both police officers and defendants have an investment in the outcome of a criminal proceeding.
Without a recording to resolve the credibility conflicts between a defendant and his interrogators, the trial court is left to evaluate the credibility of these witnesses and choose which version of the unrecorded events to believe. It should surprise no one that in almost every case, the recollections and testimony of police officers will be chosen over the contradictory recollections of the defendant:
Without a full recording to resolve the conflict, the superior court was required to evaluate the credibility of the witnesses and choose which version of the unrecorded events to believe. In each case, the court chose the police officers' recollections and determined that the confession was voluntary and, thus, admissible at trial.
Stephan v. State, 711 P.2d 1156, 1158 (Alaska 1985).
The contents of an interrogation are obviously material in determining the voluntariness of the confession. But the task of deciding what transpired in the interrogation room is a challenge:
The difficulty in depicting what transpires at such interrogations stems from the fact that in this country they have largely taken place incommunicado.
. . . .
. . . Interrogation still takes place in privacy. Privacy results in secrecy and this in turn results in a gap in our knowledge as to what in fact goes on in the interrogation rooms.
Stephan, 711 P.2d at 1161 (quoting Miranda v. Arizona, 384 U.S. 436, 445, 448 (1966).
Because police officers interrogate suspects in isolated settings, without independent witnesses, a tape recording is the only effective way a defendant can level the credibility playing field. In light of the deference given to a police officer's account of what a defendant said during an interrogation, the tape recording is the essential unbiased witness.
IV. DETERMINING VOLUNTARINESS WITH AND WITHOUT A VIDEOTAPE; PICTURES DON'T LIE
Juxtaposing the determination of voluntariness in State v. Dutchie, 969 P.2d 422 (Utah 1998), where there was no videotape, with State v. Rettenberger, 1999 UT 80, where there was a videotape, demonstrates who unfailingly wins the credibility contest between a police officer and a defendant.6 In Dutchie, the Supreme Court applied the totality test to a fifteen year old with attention deficit hyperactive disorder, a developmental expressive language disorder, oppositional defiant disorder, and four different psychotic disorders, one of which caused auditory hallucinations. Dutchie, 969 P.2d at 428. Dutchie read on the second or third grade level while the language contained in the Miranda warnings is equivalent to a fifth or sixth grade reading level. Id. Notwithstanding the foregoing, the defense expert was unable to render an opinion of whether Dutchie understood the Miranda warnings. Id. The expert was unable to make this determination largely because of Dutchie's ability to parrot back portions of Miranda warnings made by the interrogating detective. Id. at 429. In essence, although Dutchie had a below-average intelligence and psychological problems, his memory of the Miranda warnings were sufficient to lead the defense expert to conclude that he might have understood his Miranda rights. Id. In contrast, the State presented the testimony of the interrogating detective that Dutchie did not appear to be intoxicated or under the influence during the questioning. The detective further testified that Dutchie was responsive to the interrogator's questions, "did not appear confused or afraid, and appeared to be relaxed." Id.
Without a recording to resolve the conflict, the trial court sided with the detective and concluded the defendant was able to understand the Miranda warning. While acknowledging that the expert's testimony suggested that Dutchie's intelligence was below average and that he had psychological problems, the Supreme Court nonetheless concluded, "we think that his ability to parrot back portions of the warnings and his understanding of their meaning is sufficient to support the trial court's conclusion [that he knowingly, intelligently, and voluntarily waived his Miranda rights before giving a reliable, trustworthy, and voluntary statement to the detective]. Id. at 429. Moreover, in considering what weight should be given to Dutchie's "young and immature age" of fifteen, the court noted that Dutchie may have been more "experienced and brazen" than others of his age. Id. at 427.
The Utah Supreme Court's analysis one year later in State v. Rettenberger, 1999 UT 80, was decidedly different. In Rettenberger, the two interrogations of the eighteen year old defendant were videotaped in their entirety. There was no guesswork. This allowed both the trial court and the Supreme Court to review the actual interrogation without having to rely upon the competing memories of the defendant and the interrogating officers.
A. Susceptible Suspect
Rettenberger had attention deficit disorder, below average IQ, the maturity level of a fifteen-year-old, and symptoms of depression, anxiety disorder, thought disorder, schizophrenia and a dependent personality disorder. Rettenberger, 1999 UT at
B. Lies by Police About Evidence
The police made thirty-six false statements to the defendant during his interrogation. Id. at ¦21. "The overwhelming majority of these misrepresentations were not merely 'half-truths' but were complete fabrications about testimonial and physical evidence of Rettenberger's guilt. Id. In sum, although the State, in fact, had no physical evidence implicating Rettenberger, the officer sought to convince Rettenburger that the State had an air-tight case against him." Id.
C. The Mr. Rogers Technique
The police also utilized an interrogation technique called the "false friend technique" whereby they represented to Rettenberger that they were his friends and that they were acting in his best interest. Id. at ¦24.
D. Stick and Carrot
The Supreme Court also reviewed the threats and promises made to the defendant. The record was replete with "significant references to defendant being charged with capital murder, the lethal consequences of being charged with capital murder, and the possibility of lesser charges being brought, depending upon defendant's cooperation." Id. at ¦29-31.
E. Video Tells the Truth
Perhaps most compelling about the suppression of Rettenberger's statement were the details of the interrogation readily available on the videotape. What is the likelihood that a police interrogator would acknowledge making thirty-six false statements to a suspect at an evidentiary hearing when there is no record of the interview? The Supreme Court decided numerous issues by quoting the actual exchanges that took place between the interrogator and the suspect. The court also determined that the trial court had "glossed over the several occasions in which the officer strongly suggested that Rettenberger would not face the death penalty as long as he confessed to the crime." Id. at ¦29. Finally, the court was also able to question the reliability of Rettenberger's statements since the police, and not Rettenberger, were the general source of so many of the details of his confession. Thus, the Utah Supreme Court determined,
[A]t times the information that the officers gave Rettenberger took the form of outright instructions or demands. . . . When the officers changed the facts that they had provided Rettenberger, his story also changed. . . . By the close of the second day, the officers had directly or indirectly given Rettenberger virtually all of the facts that he used in his confession.
Id. at ¦41-44.
The Supreme Court noted that the district court judge reviewed the videotaped interrogations in their entirety at least four times and catalogued the numerous times that officers provided misleading information to the defendant. Id. at ¦8, n.2. Of course, the tapes were available to the appellate court as well. The availability of a recording permitted careful and precise review of both objective events in the interrogations and subjective characteristics that made the defendant more susceptible to manipulation by the interrogating officers. Id. at ¦34. The Supreme Court was particularly concerned that "Rettenberger was eighteen years old, had the maturity level of a fifteen-year old and had a below average I.Q. [since]... 'a case involving a defendant of subnormal intelligence is one of suggestibility.'" Id. at ¦37 (citing Jurek v. Estelle, 623 F.2d 929, 938 (5th Cir., 1980). The Supreme Court also noted that concerns about suggestibility were heightened by Rettenberger's symptoms of depression, anxiety and other mental disorders, which might make "him overly compliant and particularly vulnerable to psychological manipulation." Id.
V. SUPERVISORY POWERS OF THE SUPREME COURT
The powers of the Utah Supreme Court are defined in the Utah Constitution and by statute, and the Court has broad supervisory powers to control the course of litigation. This authority stems from Article VIII, ¤ 4 of the Utah Constitution, which mandates that the Utah Supreme Court "shall adopt rules of procedure and evidence to be used in the courts of the state and shall by rule manage the appellate process." Utah Const. Art. VIII, ¤ 4. The Court has interpreted this section of the Utah Constitution to grant it inherent supervisory power and defines it as "that which is necessary to protect the fundamental integrity of the judicial branch... This power enables a court to ensure that the judicial process is not abused." State v. Maestas, 2002 UT 123, ¦81 (Durrant, dissenting) (quoting In re Criminal Investigation, 754 P.2d 633, 642 (Utah 1988)(citations omitted)). The Court has created a process "for the adoption, repeal, and amendment of rules of procedure and evidence." Utah Code for Judicial Admin. 11-101(1)(A). Under this process,
. . . advisory committees propose changes to the rules, which are then made available for public comment prior to adoption. The process even provides an opportunity for this court, in our discretion, to adopt rules of procedure or evidence ... upon [our] own initiative and without proposals by the committees. Such rules, however, still must "be published for a 45-day public comment period."
Maestas, 2002 UT at ¦81 (Durrant, dissenting).
Thus, the Utah Supreme Court has the authority, through the Utah Constitution, to adopt new or modified rules of evidence, either upon its own initiative or through a notice and comment process.
In fulfilling its supervisory role over the admissibility of evidence and the fair operation of our courts, the Utah Supreme Court has imposed exclusionary rules in a variety of circumstances. The Utah Supreme Court has ruled that hypnotically enhanced witness testimony is inherently unreliable and inadmissible. State v. Tuttle, 780 P.2d 1203, 1207-11 (Utah 1989). Similarly, the Utah Supreme Court has also ruled that absent stipulation, polygraph test results are not reliable and are inadmissible. State v. Eldredge, 773 P.2d 29 (Utah 1989), overruled in part by State v. Pecht, 2002 UT 20 (overruled portion of case unrelated to polygraph test).
The integrity of the judicial system is brought into question whenever a court rules on the admissibility of a challenged confession based solely upon the court's acceptance of the testimony of one of the interested parties, regardless of whether that is the interrogating officer or the defendant. Certainly, there are numerous cases where the testimony from one side or the other is intentionally false, misleading, and self-serving. But inaccurate testimony about what happened in an interrogation room is not always the product of intentional perjury. Human memory is notoriously frail and faulty. Police officers and defendants alike forget specific facts, circumstances and statements. All witnesses remember events through the filter of their own interest in the outcome. In the absence of an electronic recording of an interrogation, it is only natural that people will interpret, reconstruct and remember events differently:
It is not because a police officer is more dishonest than the rest of us that we . . . demand an objective recordation of the critical events. Rather, it is because we are entitled to assume that he is no less human - no less inclined to reconstruct and interpret past events in a light most favorable to themselves - that we should not permit him to be a "judge of his own cause."
Yale Kamisar, Forward: Brewer v. Williams - A Hard Look at a Discomfiting Record, 66 Geo. L.J. 209, 242-43 (1977).
VI. TECHNOLOGY READILY AVAILABLE
Police departments have long kept pace with advances in technology. The use of audio and videotapes in police interrogation rooms is the norm rather than the exception in today's society. It is to the advantage of police, citizens and the judiciary to record interrogations.
The videotaping of the field sobriety tests of a suspected drunk driver is a routine matter for the Utah Highway Patrol and some of the police departments along the Wasatch Front. The gap between an arresting officer's description of field sobriety tests and what can actually be observed on the videotape is startling in many cases. On the other hand, a videotape that shows a defendant stumbling and slurring his speech tends to eliminate every vestige of reasonable doubt. The use of technology assists the defense and prosecutor and ultimately serves the interest of justice. Police interrogations of juveniles and adults at a place of detention can easily utilize readily available recording devices.
VII. SWELL OF SUPPORT FOR RECORDING
The veritable cornucopia of reasons in favor of recordation has prompted the American Bar Association to unanimously adopt a resolution urging legislatures or courts to enact laws or rules:
Requiring videotaping of the entirety of custodial interrogations of crime suspects at police precincts, courthouses, detention centers, or other places where suspects are held for questioning, or, where videotaping is impractical to require the audio taping of such custodial interrogations.
A.B.A., N.Y. Country Lawyer's Ass'n, Criminal Justice Section, Report to the House of Delegates (Feb. 2004), available at http://www.abanet.org/leadership/2004/recommencations/8a.pdf.
The supreme courts in Minnesota, Alaska, and Wisconsin have utilized their supervisory authority to mandate an electronic recording requirement. Stephan v. State, 711 P.2d 1156 (Alaska 1985); State v. Scales, 518 N.W.2.d 587 (Minn. 1994); and In Re Jerrell, 699 N.W.2d 110 (Wis. 2005) (in cases involving juveniles). The Alaska Supreme Court states that "[a] general exclusionary rule is the only remedy that provides crystal clarity to law enforcement agencies, preserves judicial integrity, and adequately protects a suspect's constitutional rights." Stephan, 711 P.2d at 1164. The Supreme Court of Minnesota exercised its "supervisory power to require that all custodial interrogation of juveniles in future cases be electronically recorded where feasible and without exception when questioning occurs at a place of detention." Jerrell, 699 N.W.2d at 173.
In New Jersey, the Supreme Court adopted the recommendations of its Special Committee on the Recordation of Custodial Interrogations on October 14, 2005. All homicide cases must be recorded beginning January 1, 2006, and by January 1, 2007 recordings must be made when suspects are charged with crimes like murder, sexual offenses, aggravated assault and crimes involving firearms.7
Twenty-one states had one or more bills introduced in 2005 to require interrogations to be recorded.8 New laws were passed in the District of Columbia9 and New Mexico.10 And in Illinois, an existing law was expanded.11
A contemporaneous electronic recording of suspect interviews at places of detention is an easy and efficient mechanism to provide the courts with an accurate and reliable record of interrogations. Recordings will prevent disputes about officer conduct, the treatment of suspects, and the statement itself. Recordation will also enable judges to conduct the nuanced reviews that the Rettenberger court was able to complete in resolving the admissibility issues of a challenged confession. With today's technology, the simple flip of a switch will generate a reliable record of everything that occurred during an interrogation. The quest for the "ground truth" (what actually happened) and the pursuit of justice demand nothing less.
1. Richard A. Leo and Richard J. Ofshe, The Consequences of False Confessions: Deprivations of Liberty and Miscarriages of Justice in the Age of Psychological Interrogation, 88 J. Crim. L. & Criminology 429, 431-32 (1998).
2. For a thorough overview of coerced juvenile confessions, see, Nashiba F. Boyd, Comment, "I Didn't Do It, I was Forced to Say that I Did:" The Problem of Coerced Juvenile Confessions, and Proposed Legislation to Prevent Them, 47 How. L.J. 395 (2004). The author identifies the Central Park Jogger case and others to demonstrate that false confessions by juveniles are a significant problem in this country. Id. at 403-405.
3. Michael Powell, Reversal Sought in Central Park Jogger Case, Wash. Post, December 6, 2002, at A1; Christine Haughney, Central Park Rape Case Convictions In Question: Man with DNA Match Confessed Attorneys Say, Wash. Post, Sept. 6, 2002, at A3.
4. State v. Dutchie, 969 P.2d 422 (Utah 1998); State v. Rettenberger, 984 P.2d 1009 (Utah 1999).
5. The FBI is well aware of the bias in favor of the credibility of the law enforcement officer. Notwithstanding that the FBI is touted as the most sophisticated police agency on the planet, the FBI reportedly prohibits the use of recording equipment without approval of the agent in charge of the local office. Thomas P. Sullivan, Electronic Recording of Custodial Interrogations: Everybody Wins, 95 J. Crim. L. & Criminology 1127, 1137-39, n.41 (2005) (citing Fed. Bureau of Investigation, U.S. Dep't of Justice, Legal Handbook for Special Agents 14 (1987)). Many federal judges have expressed their frustration with this policy. For a more detailed criticism of the FBI practice and comments from federal judges on the practice, see, Sullivan, 95 J. Crim. L. & Criminology 1127, 1137-39 (2005).
6. See, Troy L. Booher, Note, Youth Interrogations and the Utah Constitution, 2001 Utah L. Rev. 777. The author asserts that failing to record interrogations of juveniles violates Due Process under Article I, Section 7 of the Utah Constitution. Id. at 780. In support of his argument, the author compares the outcome in State v. Dutchie with State v. Rettenberger to support his position that recording of juvenile interrogations should be mandated. Id. at 785-88.
7. Report of Supreme Court Special Committee on Recordation of Custodial Interrogations, October 14, 2005, available at http://www.judiciary.state.nj.us/notices/reports/recordation.pdf.
8. Scott Ehlers, State Legislative Affairs Update, The Champion, Dec. 2005, at 49.
9. In the District of Columbia, the City Council gave the police department an opportunity to develop their own guidelines for recording custodial interrogation in 2003. When the department failed to implement such guidelines, the City Council passed legislation to require recordings in cases involving violence. See, Scott Ehlers, State Legislative Affairs Update, The Champion, Dec. 2005, at 49. Although the legislation was vetoed by the Mayor, the City Counsel overrode the Mayor's action. Id.; see, D.C. Code ¤¤ 5-116.01 (2006). A non-recorded statement is subject to a rebuttal presumption that it is involuntary. D.C. Code 116.03 (2006).
10. In New Mexico, the legislature passed H.B. 382. This law requires the electronic recording (audio and/or video) of custodial interrogations in felony cases. The Miranda warning must also be included in the recording. N.M. Stat. Ann ¤ 29-1-16 (2006).
11. In 2003, the Illinois legislature passed legislation requiring electronic recording of custodial interrogations of juvenile and adult suspects in homicide and certain sex offenses. 725 Ill. Comp. Stat. ¤ 5/103-2.1 (2005). The recording requirements took effect on July 18, 2005. In 2005, the legislature added DUI cases resulting in death to the list of crimes where suspects must be recorded. 725 Ill. Comp. Stat. ¤ 5/103-2.1(b) (2005).