Record interrogations: Reduce false confessions

CBS News' 60 Minutes last night had a disturbing story on the subject of false confessions, honing in on police interrogation of juveniles in Chicago, which the story called the nation's false confession capital. In a bizarre twist, a Chicago prosecutor insisted she believed in the guilt of exonerated defendants even after DNA had cleared them and implicated a convicted rapist. She suggested the rapist who's DNA was discovered (who is now deceased) coincidentally wandered by an open field after the fact and had sex with the corpse of a 14 year old, AFTER the boys who'd confessed had committed the deed. The courts disagreed, though, based on a close analysis of the recorded confessions, and released them with an accompanying finding of actual innocence.

The story reminded me Grits failed to link to a recent story from the Texas Tribune about proposed legislation by state Sen. Rodney Ellis to require police to record custodial interrogations, which was one of the recommendations of the Timothy Cole Advisory Panel on Wrongful Convictions that the Texas Lege failed to act on last session. Critics of the bill rely on several highly questionable claims, but once you get past red herrings about cost and logistics, it comes down to these two: Criminals might "get off" if unrecorded confessions are suppressed and jurors would not understand often-aggressive interrogation techniques that may lead to an eventual confession.

As for the former, it's a phony argument. The bill explicitly allows un-recorded confessions to be admitted if police can show "good cause" why they weren't recorded, the definition of which includes all of the hypotheticals being tossed out by critics, and more. In any event, a disputed confession may later be retracted whether it's recorded or not. A recording, though, may help convince a jury the defendant is guilty anyway, or provide evidence that would otherwise not exist if the confession turns out to be false. The bill only requires interrogations to be recorded regarding serious crimes: murder, kidnapping, human trafficking, sexual assault and child abuse.

In some ways, the second reason - fear of public perception about police interrogation techniques - is based more in reality than the fear that confessed criminals will be releaesd, though Grits still doesn't consider it a particularly strong argument. American police tend to employ tactics derived from the Reid technique, which assumes guilt and relies on an accusatory style, cutting off denials and using psychological manipulation to secure confessions. European police, by contrast, tend to rely on an information gathering interview method, with the goal of interrogations more geared toward gathering data which can be confirmed or denied through investigation, as opposed to ending the investigation in the interrogation room. The Reid formula can appear coercive to an outside observer, and indeed the method was first developed in the 1940s as a substitute for overtly coercive "third degree" style interrogations.

OTOH, the accusatory style poses a greater risk of false confessions and thus merits greater skepticism when a confession is the only evidence, particularly in the most serious cases. Indeed, concerns with the Reid technique have troubled courts for years. New York magazine reported in 2010 that "The Supreme Court’s 1966 Miranda decision singled out the Reid method for creating a potentially coercive environment, citing it as one reason suspects needed to be informed of their right to remain silent." So it's understandable police might fear those methods would be viewed unfavorably, given that even the Supreme Court has openly expressed fear of its potentially coercive effects.

Even so, with recording interrogations now the law in 19 states, according to the Tribune, there's ample evidence that law enforcement can overcome such skepticism and still achieve convictions. And overall, the benefits of recording far outweigh the detriments. Former US Attorney Geoffrey Stone wrote last week that:

After some hesitation and resistance, law enforcement's reception of these statewide recording mandates has become extremely positive. They recognize the many benefits of recording confessions: detectives are better able to concentrate on the interview rather than on note taking; there are no longer disputes about what was said and done during the interrogation; officers who might otherwise be tempted to play fast-and-loose with the rules are deterred from doing so; it is more difficult for interviewed suspects to bring trumped-up charges against police officers for alleged misconduct; and public confidence in the fairness of the criminal justice system is enhanced. All in all, this common sense reform has worked extraordinarily well.

Nonetheless, there are still some national, state and local law enforcement organizations that vehemently oppose statewide laws or court rules on electronic recording. Although they no longer dispute that recording is, in theory, a good idea, they nonetheless insist that each police and sheriff department in the nation should be free to adopt its own "best practices," which means that every local department could decide for itself whether or not to record, and if so when and how. Their reasons for opposing statewide rules are sketchy, at best. For example, they argue that "every locale is different" and that defense lawyers will use recordings to "get guilty criminals off." These are simply unwarranted objections.

Which doesn't mean those objections won't be repeatedly trotted out by law enforcement and the media as Sen. Ellis' bill progresses. Similar objections were raised when the state required recordings at traffic stops after 2001, though none of the Chicken Little predictions were borne out in reality. Given the ubiquity and ease of recording in the 21st century, IMO the practice will inevitably become widespread and in the future will be considered a no-brainer. The question is whether Texas will wait for more tragedies and overturned convictions before acting to formally require it.

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