Saturday, July 05, 2008

Recording police interrogations makes loads of sense

I'm increasingly convinced that recording police interrogations would be a win-win idea for everyone in the process. It would provide a lot more certainty when police obtain confessions that the result will stand up in court, plus it prevents or documents unscrupulous police tactics. When a false confession does occur, recordings allow investigators, defense counsel, and most importantly jurors to later identify when, how and why it happened.

The New York Times' City Room blog argued this week for recording interrogations, supplying this anecdote related to a false confession in a high-profile NY arson case:

As an example of how the police can coax false confessions, the commission made available a videotape of Frank Esposito, who as a 17-year-old was arrested and charged with arson in a fire at Bergen Beach Stables, which killed 21 horses in 2000.

He was later acquitted in a jury trial when the defense showed cellphone records that indicated he was nowhere near the stable at the time of the fire.

The taped confession shown in the video came at the end of a 18-hour interrogation where Mr. Esposito was told he had failed a polygraph test, said Nicholas A. Gravante Jr., a trial lawyer at Boies, Schiller & Flexner who represented Mr. Esposito. The police officers told him that the best way to help himself was to confess, say it was an accident and be very remorseful. “He believed that once he confessed to starting the fire accidentally, he would be released,” Mr. Gravante said. Instead, he was arrested and charged with arson. “No one gets charged with intentional arson for accidentally starting a fire.”

Mr. Gravante said that videotaping the interrogation process would document how such confessions were arrived at. “You don’t have to tell the suspect that the interrogation is being recorded. But there should be a camera in every police precinct recording every minute of an interrogation so that later on, if there’s a dispute about what happened, both the police and the suspect are protected.”

Mr. Gravante said he thought the defense case would be immensely difficult to make once he saw the taped confession. Mr. Esposito, however, turned down a plea bargain of probation because, he said, he was innocent.

His parents mortgaged their house to pay for this defense — about $150,000. In reality the defense cost the firm, with the experts and lawyers’ time, about $500,000.

Mr. Gravante said that once the phone records came back showing Mr. Esposito was not near the stable at the time of the fire, the head of the law firm, David Boies, did not hesitate. Mr. Gravante said that Mr. Boies’s instruction was: “I don’t care what kind of resources you put into the case. Win that case.”

Most people would have taken the plea deal, Mr. Gravante said. “How many people have $150,000 to spend on a defense? How many people are savvy enough to hire a top trial firm, which actually provided a $500,000 defense for $150,000?”

Esposito got lucky, but the tactics that caused his false confession are common as dirt and used in police departments everywhere in the United States. The key to the interrogation error appears to be that police told him what to say instead of asking him what happened. If it's true that "The police officers told him that the best way to help himself was to confess, say it was an accident and be very remorseful," then it would be possible to go back later and identify such moments to the jury to explain an otherwise inexplicable statement against one's own interests.

The tactic in this case is a core component of the so-called Reid technique which defines the epitome of modern American police interrogation practices: Convince the suspect they have no other choice but to confess, even if in order to do so police must lie, threaten or bully the suspect when they try to exercise other options (like refusing to answer questions).

Recording interrogations would discourage disreputable interrogation tactics, protect real confessions from challenge in court, and help identify false ones after the fact - there's really very little downside beyond the possible (and de minimus) expense. While there may be some opposition up front, my guess is that - just like with the dashcams and body mics used by most Texas officers performing traffic stops - once recordings become common detectives would appreciate and rely on them. Indeed, there's a good argument that recording interrogations would more frequently harm the defendants' interests than the police - it would certainly make it more difficult to claim confessions were coerced, e.g., if it wasn't true.

Improving accuracy and evidence preservation does not benefit either the prosecution or the defense per se, it just enhances the integrity of the system and the accuracy of its results.

BLOGVERSATION: Scott Greenfield correctly points out that it wasn't just "luck" that got an acquittal for Esposito, it was top flight legal representation.


Anonymous said...

The basic strategy for getting a false confession is to convince the accused that the police have enough evidence to get a conviction -- despite the fact that he's innocent -- so that his choice is between getting convicted on all possible charges or admitting guilt to fewer and lesser charges.

This is not so different from getting a confession at gunpoint or holding his head underwater.

If the police are denied this strategy, they will have to find a workaround. What's scary is that they will likely succeed.

Anonymous said...

The police won't succeed if there is enough pressure put on them. The problem with this in Texas is our District Attorney's and Judges, they just want to win and the DA can maneuver the tape however it makes the person look guilty. This is done often and if there are not changes made and soon, the people of Texas are going to rise up and revolt and a lot of people are affected by the unscruplous acts commited by police, deptuties and Distric Attorneys with the full cooperation of the Judges.

Anonymous said...

Is there a way to look up how many people were forced to give blood on a suspected third DWI this weekend in Williamson County?

Sam said...
This comment has been removed by the author.
Sam said...

When i was on the bench we had a capital murder case where the defendants had been arrested in San Francisco. This was "way back in 1999, I think, anyway the interrogation rooms had video tape recorders and it, IMHO, kept things on the level.

I don't know why this isn't done on a routine basis. It would seem to make sense to me.

Anonymous said...

Record Interrogations? What happens when those recordings are "lost" or somehow damaged. Injustice can always find its way around things with very little accountability when it is coming from inside the system.

Again, it is all about convictions (or plea agreements) at any price. Doesn't matter if the accused is guilty or not. Elected officials need convictions to look good in the public eye.

As a law abiding citizen it scares me. All it takes is to be in the wrong place at the wrong time. We've seen it over and again.

Chris Halkides said...

Great post. Not only does it again illustrate the problem of false confessions, but it also illustrates the problem that a good defense costs more money than most of us have. I have read that public defenders are often just plea facilitators because they lack the resources to put on a credible defense. That is just not right.