Wednesday, March 11, 2009

Why police interrogations should be recorded

For an excellent example of why all police interrogations should be recorded, check out this heartbreaking case of the wrongful conviction of a 12-year old accused of murdering a five year old girl and the herculean efforts required to hold police and prosecutors accountable for egregious misconduct. It really shouldn't be this hard to clear the name of an innocent child.

Sen. Rodney Ellis has filed SB 116 to require recording police interrogations in Texas.

36 comments:

Anonymous said...

After reading this story of Anthony Harris' wrongful conviction, anyone opposed to supporting Senator Ellis' SB 116 has to be subhuman. To record the police interrogation is the only way to have objective evidence-so any abuse of power would be noted. The prosecutor in his case was a disgrace, in her unprofessional and unethical treatment of the entire farce. It seems, to me, a parents' right to sit in on the interrogation and questioning of the minor child. This is a 12 year old young boy we are talking about, and where was the protection for him as well? I thought in our country, it is innocent until proven guilty. There should have also been a jury to hear ALL of the evidence, and decide on the verdict.Also, the trial in front of the judge should have remained private, and not televised. This judge, police interrogator, and prosecutor are the criminals here. Not the other way around. Thank God Anthony was able to fulfill his dream of serving our country in the military.

TxBluesMan said...

There is a lot of differences in the way that Harris' case was handled and the checks and balances that are already in the system in Texas.

For one thing, the police in Texas can't take the confession of a child - only a judge can do that. Are you saying that in this case that the judge would have been in on it too?

This is typical misdirection and BS. You're using a situation that doesn't match the facts or the law in Texas to attempt to go after the nasty police again.

For shame, Grits, for shame...

Anonymous said...

Why are the police so afraid to either video tape or record an interrogation? It would seem to me, after having been in the field as long as I have, a video tape or tape recording of the confession or interview itself would be a tool to be used for future evidence that the defendant did actually confess and was not coerced or physically abused into making his/her confession!

Juveniles are easily led into confessing to crimes or coerced into submission at times when they are naive and immature and unaware of their surroundings. I find law enforcements stance on this to be, quite honestly, mind boggling! Not all police are nasty, and I don't believe for one minute that Grits said that, but not all children and not all suspects are guilty either!

Anonymous said...

The problem is that federal agencies (FBI, ICE, etc...) adamantly refuse to record their interviews. What happens to Postal Inspector, FBI, etc... investigations that are submitted to local prosecutors for review and prosecution? Are they prohibited from using unrecorded confessions given to federal agents under this statute?

libertarianlady said...

Hey TxBlues,
In this case the original judge was "in on it." She didn't extract the "confession" but she didn't follow the law and was biased from the start. She was as guilty as everybody else on the state's side.

Gritsforbreakfast said...

Bluesman, how is it "going after" police to want interrogations recorded?

Stop being so defensive. Not every proposed reform is an attack on you and yours. Sometimes it's just good public policy.

123txpublicdefender123 said...

You know, everyone always talks about wanting to require that a parent be present for a juvenile interrogation, but my experience in juvenile court makes me skeptical about the usefulness of such a thing. On one hand, it would prevent the police from using the line about "If you just tell us you did this, we'll let you see your mom" to get the kid to confess. But, on the other hand, the majority of parents I've dealt with in juvenile court aren't that functional, and would be more likely to tell their kid to confess than to act as an advocate for them against the police. Not to mention the fact that if the parent is abusive (and a lot of my clients in juvie court have abusive parents), the kids may view their parents' presence as a more coercive influence than even the cops' presence.

All that said, all interrogations should be recorded; the officers, prosecutor, and judge in the case should be ashamed; cheers to the lawyers who fought for Anthony for years; and I wish Anthony all the best. The kid got a multi-million dollar settlement and he still joined the military in the middle of two wars.

TxBluesMan said...

Grits,

I'll tell you what. If you can get the Lege to change CCP Art. 38.23 to meet the same standard as the Federal government and the rest of the nation (i.e., all 49 other states), I'll support it.

But with the way 38.23 is now written, I won't. It just provides the criminals with another loophole to exploit.

Anonymous said...

May I mention that Ohio is one of the states that TYC was encouraged to emulate when we were casting about for a role model for juvenile justice reform?

May I also just theorize that children are likely to be led into making false allegations as false confessions when interviewed with similar techniques?

XTYC

Anonymous said...

Section 38.23 of the CCP merely excludes from trial any evidence that was obtained in violation of the law. Why would a person who is charged with upholding the law be in favor of violating the law? One would imagine that police officers would be in favor of compliance with the law.
Oh, and the exclusionary rule does apply to all the states and the feds.

TxBluesMan said...

Anon 9:01,

I am very aware that the other states and federal system have the exclusionary rule. It is just not as limiting as the Texas rule is.

Delete the words "any other person" and you'll match the rest of the nation.

Let me give you an example.

A college student was concerned that his dorm roommate was viewing kiddie porn, based on the labels on diskettes... He took the diskettes to the police and explained his concern.

The police looked at the disks and found numerous images of child pornography. They took this evidence to a judge and got a search warrant, where they discovered additional child pornography and correspondence with other children. The suspect, a child psychology major, was arrested.

The court held that since the original student had 'stolen' the diskettes, the material was obtained in violation of the law and must be suppressed. The suspect walked. There was no police misconduct, the typical reason for suppression.

In 49 other states and the federal system, the evidence would not have been suppressed.

By the way, he was able to continue his major and able to continue to work with children.

If 38.23 applied only to officer misconduct, and had a good faith exception like federal law, then I could see backing the other laws.

In its current state, it just serves to put possible child molesters back on the street to work with and molest other kids.

Anonymous said...

I am aware of the "any person" provision. Anecdotal stories do not good laws make. It is quite true that there might be isolated instances where persons considered "guilty" by police might not be convicted because of the exclusion illegally obtained evidence. We as a society have made the choice that rights are more important than an occasional occurrence where some evidence might be excluded.
"Conviction at any cost" smacks too much like "the end justifies the means" which is not how Americans prefer their system of justice at this juncture. It does always seem that those who are hell-bent on strangling the individual's rights vis-a-vis the government are quick to make a "for the children" argument and throw in a random "child molester" boogyman reference for good measure. For some reason, that tiresome argument doesn't work too well around here; but then the group here isn't composed of average Texas voters. I won't go pedantic here by inserting the full quote, but I would reference the "men of zeal" attack on liberty comment of Justice Brandeis as being particularly appropriate here.

sunray's wench said...

Here in the UK (cue sounds of people clicking away from the page...) if you want to interview a minor you must have an 'apropriate adult' present. It doesnt have to be the parent, often it is a social worker or whoever the police can track down that the child knows.

ALL interviews are recorded here and have been for years. Police are not even allowed to start asking questions of a suspect or witness until they are declared fit by a medical doctor (so no interrogating anyone high on drugs and getting them to confess to things they have no idea if they did or not). It doesnt have to be video'd, it is usually just a tape recording.

But here, we are more interested in getting to the truth than we are putting people away. Perhaps it's time for a moratorium on what the word "justice" means in the US and in particular, Texas?

Gritsforbreakfast said...

Bluesy, you're completely full of it. We're talking about recording POLICE INTERROGATIONS. The extra phrase "any other person" in 38.23 is entirely a red herring and irrelevant to this discussion. "Other" people don't conduct police interrogations.

Anonymous said...

I'm still stuck on the role this supposed "officer of the court" prosecutor had. It is high time that the laws reflect some control over their "above the law" actions. I have seen it time and time again. Conviction at any cost is as far from the the Constitutional rights we hope to have as you can get. The office of prosecutor is in serious need of oversight.

doran williams said...

Tx, it would be clarifying if you would explain and substantiate with cites your statement that only judges can take confessions from juveniles.

Anonymous said...

Why is it cops guards and prosecutores are strongly opposed to having thier actions when acting on behalf of the state recordeded on a permanet record . Thwey must have something to hide as they say to civilains .

Grits is right how is recording them going after any of the above ? Unless they are doing something wrong and have soemthing to hide .

Recording events will have at least a permanet record of it. How does gettingaconviction at all cost even if the person is innocent keep any one safe? The guilty paarty is now free to do as they please .

Maybe it is something else all together . They are doing things they should not be making that public could be very damaging to thier careers and poltical ambtions . Maybe even land them in prison ?

Anonymous said...

How does one overcome the fact the DA's office takes the recording and leaves out portions of the recording so the person being interrogated says exactly what the DA wants the jury to hear?

This happens in Harris Co and was the way cases were handled in the past. The Judicial System, especially in Harris Co. is so corrupt it is no wonder they win so many cases and send so many people to prison; anyone can rig a case and the court system in Harris Co. has had plenty of practice.

Maybe with the new DA, things will get better here, pray the change works; she has to be better than the previous DA.

Anonymous said...

Here is a better idea. Scrap the whole thing and pass a law mandating that before a confession from anyone be taken a lawyer MUST be present, either paid for by the person in custody, or court appointed.

This would buttress Miranda, could avoid the cops don't like to be recorded issue, and allows the person of interest be able to know what is really going on. In the case of a child it should be an attorney AND a parent of legal guardian.

as fa as TXBlues statement"But with the way 38.23 is now written, I won't. It just provides the criminals with another loophole to exploit."

Where is there a loophole in ANY law? Rights not specifically stated in the Constitution are reserved for the individual, and thus they are protected from police procedures that harm the rights and freedoms that our elected officials are so happy to take away.

TxBluesMan said...

Grits,

My reference to CCP 38.23 is completely relevant, more so than the Harris case is to Texas. If your bill becomes law and there is not a video, then the confession is excluded under 38.23. If the officer did everything correctly but the tape broke, it doesn't matter, it is still excluded. No credit for good faith, no concern for justice for the victims, just exclude it and let them walk.


Doran,

It is covered under the Family Code, Sec 51.095 (Admissibility of a Statement of a Child). That is why the Harris example, although it plays on the emotions of the public, did not occur here and is not an example of what could happen in Texas. Here, the police would have had to taken Harris to a judge and then leave. If the judge was concerned for his safety, then an unarmed bailiff could be present, but no other LEOs or prosecutors. The judge has to certify that he explained the Miranda rights to the child and that the child understood them. The judge also has to certify that he believes that the child understands the nature and content of the statement. This law was effective in 1997.

The Harris case in Ohio (1998), although clearly a miscarriage of justice, couldn't have happened in Texas. It is a clear play to emotions, and unless Grits is saying that judges can't be trusted, serves no purpose in the argument for or against SB 116.


It would be really nice if every once in a while y'all would be in support of these officers that protect us.

Lucille said...

TBM:

Go read the article again. This time, note what it says about the judge in the Harris case. It makes it clear that the judge was a huge part of the problem.

After studying the confession, Hale requested another hearing. ... Judge Linda Kate denied the motion.

In a highly unusual move, Judge Kate gave the press full access, and let them take photographs in the courtroom. She even let the trial be broadcast over the radio.

Because this was a juvenile proceeding, there was no jury. Judge Kate would decide Anthony's fate.

Hale asserted in an affidavit that before the defense had started its case, Kate had walked into a defense conference and pushed for the case to be "resolved" to avoid having some children testify as witnesses. Kate did not dispute this

Judge Kate rejected a defense motion to suppress Anthony's confession.

Judge Kate found Anthony guilty.


The miscarriage of justice INVOLVED and was, in large part, CARRIED OUT BY the judge in the Harris case, so I don't know why relying on the integrity of judges would be a foolproof measure.

Lucille said...

And human nature is still fallible in Texas, just as it is in PA, so yes, it could easily happen in your neck of the woods.

Lucille said...

But then again, maybe you can explain how having judges hear confessions would have altered the outcome of the Harris case. I'm all ears. :)

doran williams said...

Tx, you should read 51.095 a bit more closely. There is no requirement that a judge "take" the confession of a child, as you put it. And, there are provisions for a voluntary statement of a child to be used, even if it does stem from an interrogation, and especially if the statement does not stem from an interrogation.

Here is the irony of 51.095: A child is considered to have the intellectual capacity to understand his or her rights, and to waive that child's right to remain silent -- that is, to make a statement that will put that child in a lockup for years, or even submit the child to a term in prison. But at the same time, the Texas Legislature, which is responsible for the foregoing assessment of a child's capacity to make a decision affecting that child's freedom, has also determined that the same child does not have the capacity to agree to sexual intimacy.

Take an example. A 12 year old girl is not considered by the law in Texas to have the capacity to agree to engage in sex with a 13 year old boy. If she does, the 13 year old could be subject to the juvenile justice system. But if the 12 year old girl, a day after the sexual activity, robs the 13 year old at gunpoint, that 12 year old is assumed to have the capacity to understand her rights under the Constitution and Laws of Texas, to understand the consequences of waivng those rights, and to, in fact, waive them and make incriminating statements.

This dis-connect in cognitive capacity is not that of the child, it is that of the Texas Legislature. The intellectual incongruity of the Family Code provisions regarding statements by children, and the Penal Code and Family Code provisions regarding the juvenile justice system, reflect the sexual hangups, and tough on juvenile crime hangups, of a majority of the Texas Legislature.

It is just pure hell, representing kids, because the statutory schemes for dealing with them are so screwed up.

doran williams said...

I could have pointed out, that the 13 year old boy who had sex with the 12 year old girl, and the 12 year old who subsequently robbed the 13 year old, could find themselves in the same juvenile courtroom on the same day, in some of our smaller counties.

The boy, who let us say waived his rights, will be found by the court to have made an intelligent waiver, while the 12 year old, who also waived her rights, while being found to have made an intelligent waiver of her rights, will not be allowed to testify that she agreed to sex with the 13 year old, because she is assumed not to have that capacity.

Damned strange.

TxBluesMan said...

Lucille,

Maybe you can explain how SB 116 would have helped Harris?

The bill covers interrogations by police. Had the Harris case been in Texas, he would have made his confession to a judge, not the police. How would video-taping police interrogations have helped him?

It is a clear play to emotions, and SB 116 would not have helped him in Texas. The bill doesn't require that judges be taped when they take a confession.


Doran,

To get a confession admitted in Texas, there has to be a record of it, either in writing or electronically (I would have really thought that you would have known this) or it has to meet certain exceptions (such as the defendant told me where to find the body and it was at the location he described...).

Until the child signs the confession in front of the judge, there is no confession. It can't be admitted.

No judge, no confession. It's a fairly simple concept...

Todd said...

sunray's wrench said "But here, we are more interested in getting to the truth than we are putting people away. Perhaps it's time for a moratorium on what the word "justice" means in the US and in particular, Texas?"

After reading some of the articles on UK police blogs such ashttp://inspectorgadget.wordpress.com/ and http://pcbloggs.blogspot.com/, it sounds like your system has absolutely no interest in putting people in jail. Perhaps that explains the soaring crime rate in your country. No thanks.

anon wrote, "Scrap the whole thing and pass a law mandating that before a confession from anyone be taken a lawyer MUST be present, either paid for by the person in custody, or court appointed."

Then there will never be any confessions. A lawyer will not let the person confess to the crime. I know it pains you to hear this but there are situations where a person is guilty and getting a confession is the only way to get a conviction. CSI Miami is a fine show but lab work very rarely secures enough for a conviction. I shudder to think of how many murders would go unsolved if you wrote policy.

With that being said, I have no problem with interrogations being videotapes as long as juries understand the interrogation tactics police use.

doran williams said...

Tx. Nice try, but no cigar.

You originally wrote that a judge has to "take the confession." That is not the law and you know it. A child can be kept incommunicado from an attorney and parent, and subjected by the interrogator to all kinds of subtle pressures to confess. After the child does that, out of confusion, fear, exhaustion, a desire to please an authority figure, because his or her parents have always preached that the police are our friends and you should always cooperate with them --- for whatever reason other than being actually guilty --- the "confession" is reduced to writing and a judge reads it. The judge interviews the same exhausted, confused, perhaps slightly slow child, who again goes along with the authority figure, and signs. That is one way a false confession from a child can be had.

An oral confession does not have to be signed by a judge.

The inculpatory statement of a child is not precluded from admission if it is not the result of interrogation. This is the "riding around" or the "lets go get some ice cream" exception to the exclusionary rule.

And a statement that does result from interrogation is admissible if it is voluntary and has a bearing on the credibility of the child.

You can read, Tx. Stop with the crap about confessions not being admitted unless signed by a judge. Some obviously can be admitted.

Gritsforbreakfast said...

Bluesy, false confessions happen with adults instead of juvenilesand the exact same issues arise in those cases.

As for your response to Doran, the issue is recording the WHOLE INTERROGATION, not just the confession secured potentially after hours of coercion or manipulation.

As is often the case with your comments here, you're obfuscating, but in this case not doing a very good job of it.

Todd, I'm glad to hear you don't mind recording interrogations. IMO, no honest cop has any reason to oppose recording and there are many reasons to think it's a beneficial thing for police, not the attack on them that Bluesman perceives.

123txpublicdefender123 said...

TxBluesMan, it doesn't matter if the confession is signed or recorded or done in front of the judge and a million witnesses. What we need recorded is the interrogation, so that the judge ruling on the voluntariness/reliability issue and/or the jury deciding whether to rely on it as evidence can see the type of coercion that took place to get the defendant, be it an adult or a child, to that point.

TxBluesMan said...

Thankfully it will be a moot point, since if it does get past the Lege, the Gov will likely veto it...

Anonymous said...

doran williams said...

Tx. Nice try, but no cigar.

You originally wrote that a judge has to "take the confession." That is not the law and you know it. A child can be kept incommunicado from an attorney and parent, and subjected by the interrogator to all kinds of subtle pressures to confess.

A child can be kept incommunicado from an attorney and parent? Last I time looked children had the same rights as adults provided by the U.S. Constitution. No where does it say you must be a certain age for the Constitution to apply to a citizen. Parents need to teach their children not to talk to police officers. A child should be taught to always ask for their parents or a lawyer when in the presence of a police officer.

todd said...

"Parents need to teach their children not to talk to police officers."

Children are already taught this. That is why the "no snitching" culture is so big in the hood. The effect is that nobody wants to give the police any information that would help solve murders and robberies.

That also means that since people are willing to be witnesses and give statements, the only way police can solve these case if they are lucky enough to develop a suspect is through interrogations and confessions.

Kinda ironic huh?

sunray's wench said...

In Todd's post:
"anon wrote, "Scrap the whole thing and pass a law mandating that before a confession from anyone be taken a lawyer MUST be present, either paid for by the person in custody, or court appointed."

Then there will never be any confessions. A lawyer will not let the person confess to the crime. I know it pains you to hear this but there are situations where a person is guilty and getting a confession is the only way to get a conviction. CSI Miami is a fine show but lab work very rarely secures enough for a conviction. I shudder to think of how many murders would go unsolved if you wrote policy."

Not so, at least not over here. Lawyers often advise their clients to confess, if they commited the crime of course, because confessional of guilt work in the defendent's favour at sentencing.

The crime rate in the UK is not 'soaring'. It is going up, linked to the current economic climate, just as in every other westernised country. We still send plenty of people to prison, but as our prisons are as full as Texan ones are, there is a move here to find alternatives to incarceration and we have a system of parole that works on the assumption of release unless there are factors to say otherwise, not a system that refuses to parole an inmate despite that inmate doing everything the law and the BPP have previously said they must.

Anonymous said...

Heck, I would be in favor of video and audio recorded confessions.

On one condition, due to the fact that these confessions are now video taped, there need not be a judge present during juvenile interrogations. It is an extra step that was created to assure the rights of the child are protected, the video and the trial courts could act as the judge based on the video.

Just an idea from a Criminal Investigator that works juvenile crimes.

RJason21 said...

I think that if the police will use new equipment to record your interrogation, that those work will be more efficient. Look at this site http://www.irecord.tv/