Wednesday, April 22, 2009

Strange debate on recording interrogations

The Senate this afternoon passed Sen. Ellis' SB 116 encouraging police to record custodial interrogations on a 28-2 vote. The debate over the bill, though, was bizarre, with opponents raising strange objections that simply ignored what the bill actually does. According to the Austin Statesman:

The approved measure provides that, when practical, a custodial interrogation should be recorded, in its entirety, using audio-visual equipment or audio equipment. It requires the Texas Department of Public Safety to adopt rules for providing funds or electronic recording equipment to law enforcement agencies.

Ellis called the change, headed to the House, “a very modest step in the right direction.”

Senators acted after Ellis fielded questions from Sen. Dan Patrick, R-Houston, who expressed concern that the failure of a police officer to record an interview might be exploited by defense attorneys.

“I don’t want this to be a big loophole that you could drive a truck through to get people off” from criminal charges, Patrick said. He added that he supports Ellis’s intent.

Sen. Joan Huffman, R-Houston, aired similar concerns.

Patrick and Huffman voted against the bill (though doing his best John Kerry impression, Sen. Patrick voted for the bill in committee before he was against it).

Both senators kept saying that confessions might be excluded or defense attorneys might "get people off" because an interrogation wasn't recorded, ignoring explicit language in the bill stating that "Nothing in this article affects the admissibility of a statement that is otherwise admissible as evidence in a criminal proceeding."

So even if an interrogation is not recorded, all the evidence gained from it still would get into court. Sen. Ellis kept reading that language to him over and over, but Sen. Patrick wouldn't take "yes" for an answer.

I don't know if Patrick and Huffman simply didn't read the bill (it's only a one-pager and not very complex) or were misled by critics in the law enforcement lobby, but the whole conversation was odd and off point. Congrats to Sen. Ellis, in any event, for getting his bill through.

The legislation now heads to the House where Rep. Jessica Farrar is carrying companion legislation.

MORE: From the Texas Observer's Floor Pass blog.

See prior, related Grits posts:


123txpublicdefender123 said...

I feel like I'm missing something. How does this measure help if the confession/statement is admissible whether they record the interrogation or not?

Gritsforbreakfast said...

Perhaps what you're missing is that the TX Senate is a very conservative body and that's the best Sen. Ellis could get through the process. His original bill would have applied the exclusionary rule, but the post-compromise bill more modestly aims to change police practices instead of giving attorneys more tools in court.

Rep. Farrar's version in the House is a compromise between those extremes, requiring agencies to have a policy on recording interrogations and giving a jury instruction if it's not done (with a list of reasonableness/res gestae exceptions). Neither version of the bill would exclude non-recorded interrogation info from court. At the moment, it's just not politically possible in the current environment.

Anonymous said...

can't imagine anyone more stupid than these senators from Houston. As a voting Houstonian I'll remember the idiocy at election time.

TxBluesMan said...

If the bill does not exclude evidence that is not recorded, whether by machine error, human error, or whatever, then I wouldn't have a problem with a bill that basically just suggests that interrogations be recorded.