Police arguments against recording interrogations allow fear to impede self-interest

Some law enforcement interests, to me, inexplicably, have come out against legislation carried by Rep. Pete Gallego and Sen. Rodney Ellis requiring police to record interrogations in serious violent crimes. The DAs are split - some want interrogations recorded because for them it's more and better evidence - but police unions and a handful of law-enforcement agencies have been adamant against the legislation.

The complaints are familiar: Police think the purpose of the video is to play "gotcha," to try to accuse officers of misconduct, that the public is too unsophisticated to understand the techniques used in interrogation (such as lying to suspects or attempting to intimidate them), and secondarily, that the expense and practical requirements of recording would be too onerous.

I say they're familiar because in 2001, (for the most part) the exact same people made the identical arguments against requiring law enforcement agencies to record police-citizen interactions involving patrol officers with dashcams, arguably the most important measure in landmark racial profiling legislation passed that year carried by state Sen. Royce West. Back then, Texas cops portrayed recording street encounters as "Big Brother" looking over their shoulder, as an attack on police offficers, creating a record which, in their minds, served no other purpose than accusing police of misconduct.

In actual practice, though, exactly the opposite turned out to be the case. Dashcam video did and does occasionally catch instances of police misconduct, but MUCH more often it debunks complaints against officers, providing irrefutable proof against false or inflated allegations. Dashcams protect officers in the street, or at least the vast majority of them who are doing their job the way they should. And when they don't, video gives police supervisors an excellent training tool, allowing them to identify areas where specific improvements may be needed or where officers made poor decisions that otherwise might not be apparent. In most cases the public never sees such video, but it provides excellent evidence in court, enhances both police training and oversight, and protects good cops from false allegations.

Today, even former critics of the 2001 legislation now say dashcams have been far more boon than bane for Texas law enforcement, particularly in DWI cases where video of intoxicated suspects have become a staple in drunk driving prosecution.

So given how utterly and profoundly wrong they were about video in patrol cars, I don't understand why the same law enforcement interests can't see that recording interrogations would provide the same benefits. Right now under Texas law, confessions must be recorded (or written) but not the interrogation that led to them. So inevitably, a common-as-dirt tactic by defense lawyers is to claim that unseen misconduct in the interrogation room led to a false or coerced statement. Recording interrogations in most cases will take that issue completely off the table. In the Brownsville Herald today there's a typical example from a capital murder case where a recorded interrogation would have been helpful:

In a pretrial hearing last year, a video statement [Ernesto] Martinez gave to Brownsville police was aired in which Martinez admitted to killing [Barry] Horn
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Martinez said he was drunk and angry when he killed Horn. He said he stabbed Horn several times because he was upset over an assault at Horn’s home on Flor de Mayo two weeks earlier.

“I got very drunk because he raped me a couple of weeks before,” Martinez said in one of two video statements he made to Brownsville police on Oct. 26, 2009. “I did it. I did it, sir, because he raped me.”

Martinez’s attorneys had tried to get the statements suppressed, but 404th state District Court Judge Elia Cornejo Lopez denied the motion.

Martinez had claimed he was coerced into making the statements and did not understand his Miranda rights when he spoke to police.

Claims of coercion, inadequacy of Miranda, etc., are common, but if interrogations are recorded, there will usually be no need for such pretrial suppression hearings. As it stands, this defendant will likely continue to appeal based on an allegedly coerced confession, and there's no hard evidence besides the officers' say-so to prove to a certainty there wasn't coercion. Why not gather evidence up front that coercion didn't occur, since it's alleged so frequently? Even though most judges and juries tend to give officers the benefit of the doubt, as happened in this case, it'd be better to take the issue off the table entirely. And there would, of course, be a small minority of cases where misconduct is recorded. But by the same token, it would also serve as a preventive and perhaps there'd be fewer such incidents if police knew their actions would be caught on tape.

Just as importantly, when innocent people do falsely confess - which happens perhaps more commonly than one might expect, particularly in high-profile crimes - recording interrogations provides a record that can later help exonerate them. A terrific example was cited in the House Criminal Jurisprudence Committee last week by Mike Ware from the Dallas DA's Conviction Integrity Unit: The case of Stephen Brodie, a deaf man who falsely confessed after 18 hours of interrogation, much of it with no interpreter present. After discovering physical evidence in the old case pointing to another suspect (a fingerprint from a man who later actually confessed to the crime for which Brodie was convicted in an unrelated plea deal), the Integrity Unit closely reviewed a recording of Brodie's interrogation and found more than 40 instances where his statements failed to match other evidence and known facts. His recorded confession, of course, was more truncated and didn't betray those same inconsistencies, but because they'd saved the video record of the interrogation, Brodie was able to be exonerated despite the lack of DNA.

That right there is worth the cost of admission, and it's why groups like my employer, the Innocence Project of Texas, are pushing for recorded interrogations. But as a practical matter cases like Stephen Brodie's are much less common than are accusations of coercive interrogation in the face of a vacuum of evidence, as in the capital murder case in Brownsville. That's why, according to the national Innocence Project: "To date, Illinois, Maine, Maryland, Missouri, Montana, Nebraska, New Mexico, North Carolina, Oregon, Wisconsin, and the District of Columbia have enacted legislation requiring the recording of custodial interrogations.  State supreme courts have taken action in Alaska, Iowa, Massachusetts, Minnesota, New Hampshire and New Jersey.  Approximately 500 jurisdictions have voluntarily adopted recording policies."

This bill would simply require recording in serious violent crimes (so-called 3g offenses). If interrogators failed to record, and if their reason for not recording doesn't fall under a lengthy list of allowed exceptions, the confession would still be admissible, but with a jury instruction informing jurors that police should have recorded the interrogation, but didn't. Nobody's confession would ever be excluded just because police failed to follow this statute.

Finally, I find the cost issue a red herring. On dashcams, I was much more sympathetic. Those really are expensive systems and the state issued $18 million in bonds to finance them for local police agencies. (The very largest - Dallas and Houston - didn't get cameras for all their cars because the state ran out of money, but smaller agencies did if they applied.) But for recording interrogations, these days the equipment is cheap. Sure, you can spend thousands to outfit an interrogation room with hidden cameras and recorders, but you can also spend $40 at Radio Shack to buy an audio recorder capable of many hours of uninterrupted recording. For that matter, any laptop or desktop computer can be outfitted to record, and storage of digital recordings these days is electronic, requiring little physical space or ongoing maintenance. Most agencies already have audio and/or video recording capacity in some form or fashion. And if some podunk department is so small it can't afford such technology - and I don't doubt they're out there given that Texas has more than 2,500 law enforcement agencies, some of them truly minute and obscure - maybe they shouldn't be the ones investigating serious violent felonies in the first place! That's what the Texas Rangers are for. Call 'em in, or else hand off such cases to agencies with sufficient resources to properly investigate.

Other than issues of cost, fear (sometimes bordering on paranoia) of the new and unknown seems to be what's driving opposition to recording interrogations, perhaps influenced by recent negative experiences Houston PD has had with video evidence of police misconduct in the field. I not only think those fears are overblown, I strongly suspect that once recording interrogations becomes the norm, just as with dashcams, this tool will quickly come to be viewed as all-but indispensable, providing stronger evidence in court, plus protecting good cops doing their jobs and innocent suspects who falsely confess. I just don't see the downside.

See related Grits coverage:

• Latest exoneration highlights problem of false confessions
• Are false confessions 'coerced' or 'persuaded'?
• CCA orders Yogurt Shop retrial based on possibility of false confessions
• Jurors from false confession case call for recorded interrogations
• Recording interrogations makes loads of sense
• Expert: Yogurt Shop case a prime example of false confessions
• False confessions a "systematic feature of American justice"
• Recording confessions saves much grief for police
• Police interrogation a 'guilt presumptive' process
• Would you confess to a crime you didn't commit to save your life?
• If CIA can record interrogations, so can police
• Abilene PD requires recording interrogations
• El Paso conference brought together top minds to prevent false confessions
• Why record interrogations?
• Juries need more, better information to prevent false convictions