Friday, March 04, 2011

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
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:


Anonymous said...

Grits, Love your Blog! It is on my daily must read! Could you examine the current issues regarding the PUBLIC recording police officer conduct. I know it is in the courts at this time, but I am unaware as to how smaller counties in the rural areas handle the issue. Harris county has their stance (against it). I am wondering if you know of any arrest stats (regarding public filming of police actions) for the remainder of Texas. Thanks for keeping us informed.

Hook Em Horns said...

It's not fear it's resentment of anyone having authority OVER the police. Cops hate anyone in charge. They loathe their own Chiefs of Police, and any government entity that tries to hold them accountable. It's the nature of the badge err uhm beast!

Anonymous said...

How could it possibly be illegal to record police behavior in public? That would never make it past a judge.

And, I know Shreveport, LA police record everything that happens in the interrogation rooms. Even at that, they got sued several years ago for beating on a suspect in an interrogation room! It was on video!

Anonymous said...

I agree with GFB here. I think that with the ability of the officers at times to fabricate stories, push the arrestee to the limit with few breaks and long interrogations, would be beneficial in some cases. It would allow for those to be seen who are fully coerced and ones that are not. Grisham's "The Confession" backs up the need in a fictional, but easily true East Texas way of justice. I like the idea. It protects both sides and relies less on eyewitnesses which are poor choices or jailhouse snitches.

Anonymous said...

Objectivity is important regarding this issue. People who have made a career of making negative, one-sided comments about the police may not be an objective source.

Gritsforbreakfast said...

2:10, perhaps not, but that's not an argument against recording interrogations. Do you have any?

Angee said...

The accused does not have to write out a confession. Some very nice police officer will type it in a very slanted way. All the accused must do is sign it. The accused is not even encouraged to read it because it has been a long day. Everyone is tired and wants to go home and by now they are all best buddies. It makes be want to gag and I don't think it is unusual. I feel certain that a judge that looks at a typed confession is aware is aware that it was not the words of the accused and that no attorney was present. Try getting such a confession thrown out of court. They are taken anyway they can get them.

rodsmith said...

the problem about the money grits would be because of one thing

any setup to record this type of thing could NOT use normal video. It would need to be a ONE TIME use item that is unchangeable by anyone other wise it's just a waste of time.

If you think you can't play with a recording jsut watch any sci-fi show!

Gritsforbreakfast said...

Rod, fwiw, it doesn't have to be video under the bill, audio will do. And a cop would need editing software to alter a recording. If there are procedures and documentation for uploading/downloading and no access to editing software for the cops making the recordings, I've little doubt that problem could be managed without every department setting up a high-end sound room.

Besides, departments already must have capability to record confession statements, and testimony in committee was that 97% of confessions these days are recorded statements, not written. So to the extent departments need the capability you describe, they already have it in place for recording confessions, and the same protocols could be applied to interrogation recordings.

Anonymous said...

Next up, Charlie Sheen and Lindsay Lohan.

WEHII said...

It would be adamantLY against, in the first paragraph, wouldn't it?

rodsmith said...


" If there are procedures and documentation for uploading/downloading and no access to editing software for the cops making the recordings,"

this would be the same type of procedures and documentation that is supposed to get them to do the job right in the first place that isn't working? NEXT!

"I've little doubt that problem could be managed without every department setting up a high-end sound room."

as for this what high end sound room? would be simple enough to setup a video camers that covers whole room that runs into a dvd recorder that will ONLY use ONE-TIME disks! No editing allowed period. It turns on when someone goes in the room and turns off when nobody is in the room.

as for just audio sorry we're not in the 1950's this is the 21st century 10 year olds can make videos why can't 20-60 year old police?

plus of course with just audio individuals who might want to fake the system have way too many ways to do it and not been seen.

Gritsforbreakfast said...

Rod, cynicism is not argument. And you may think the type of automatic system you describe is preferable to audio only, etc., but that's simply not what's required in the bill.

Anonymous said...

In England the cops are required by statute/code to make two copies of the recorded interview - one is handed straight over to the defense lawyer who, in the English system, is required to go to the police station at any time, day or night, if the suspect wants counsel. That takes care of tampering problems. And the suspect is also entitled to an "appropriate adult" i.e. a social worker/guardian ad litem in attendance at the interview, if the suspect has mental health problems or is a juvenile. Does this mean that nobody in England gets convicted? No - it just means that the statements obtained by the cops are much harder to challenge, but on the other hand, false confession cases are increasingly few and far between. The police hated these rules when they were first introduced in the mid-1980s - I think that now they mostly welcome them as a safeguard against false allegations that they improperly coerced a confession.

Anonymous said...

Some dork said, "It would be adamantLY against, in the first paragraph, wouldn't it?"

This is what she meant to say - Weeee look at me, I'm a spell checker. Look how I put the l and y in upper case so everyone can see how smart I am. Look you can click on my image and see how proud of myself I am. I'm a dork.

Thomas R. Griffith said...

Hey Grits, (hope I spelled it right?)

The Houston Police Chief said that "videotaping cops is provocation and will lead to assaults on cops."

We all know he's full of shit and now we learn that the fight to keep interrogations un-documented is being lead by police unions and a few L.E. agencies.

Police unions are comprised of police and have lawyers on retainers. Law Enforcement agencies consists of those with policing powers. Both are chocked full of lobbyist.

Thus, leaving the dumb-ass taxpayers to pick up the tab regardless of what decision is made. Now we know why the rest of the country thinks we are a bunch of hicks.

Folks will you join me in calling Gallego & Ellis and let them know you support them and their endeavors or will you simply pay your taxes and go back to bed / the barn. Thanks.

rodsmith said...

then on offense grits but the bill is not only RETARDED but also a USELESS waste of time and money.

Would be kind of like a bill being passed that orders law enforcment on patrol to use payphones only. Even though we have radio and cell phones.

If it is passed you can be CERTAIN a few years down the road it will all be back in the air again once someone proves the cops coached them to confess using key cards and baseball bats that didnt' show on the AUDIO!

Anonymous said...

I was informed my miranda rights, placed under arrest, handcuffed and transported to a Police Dept. in Oregon. After being being placed in an area posted as being under surveillance by audio and video the officer then started questioning me.
Surveillance videotapes are classified as a form of photographic evidence under Federal Rule of Evidence 1001 and parallel provisions in most states.
I requested a copy of the footage relating to my questioning by the officer in a timely manner to be used as evidence by U S Postal service.
This request was not provided. Requests as to public information relating to policies, procedures and protocol used in conjunction with the surveillance equipment have failed, unless you consider a purchase order, sales slip, operation instruction and warranty information for a TV/ VCR combo as being connected.
Implementing an effective program requires more than simply purchasing and installing surveillance equipment. A comprehensive video management plan must be in place. AS we enter the digital age, planning for a system should be devoloped from the back-end (storage, filing and retrieving images) to ensure that technology will support the system selected. In addition, the plan begins with a broad assessment of an agencys video evidence needs and should bring together all parties with an interest in the success of the program.Prosecutors are integral to this process. Ultimately, they will have to defend the video medium.