Justice prevails with recorded interrogations

March 26, 2006|By TOM SULLIVAN

The General Assembly is considering a bill requiring officials to electronically record police interrogations, which would be a major step forward for law enforcement in Maryland.

The legislation would apply to suspects in serious criminal investigations who are questioned in police facilities, and it includes an exception when extenuating circumstances justify not recording an interrogation.

A growing number of state legislatures and courts have required recordings like this because they've seen that it helps police, suspects, prosecutors and courts. All aspects of the system benefit when interrogations are recorded, and it's time for Maryland to benefit from this as well.

During the past several years, my associates and I have spoken with experienced detectives in more than 460 departments in 43 states from small, medium and large communities, including several in Maryland. We have yet to speak with a single one who, given the choice, would return to non-recorded interviews.

Their experience has shown that recording custodial interviews protects police officers from later claims by defendants that they were not given the Miranda warnings, without which suspects in custody may not lawfully be questioned, and from charges that improper coercive tactics were used to extract confessions.

A permanent record is created, which prevents courtroom controversy about how suspects were treated and what they said and did - law enforcement's version of the instant replay.

Police also have found recordings helpful in making an indisputable record of false exculpatory statements; in permitting them to concentrate on suspects' stories without the need to make extensive notes; in illustrating evasive conduct and body language, which is so difficult to portray through oral testimony; in discovering, through later review of the tapes, clues overlooked during the interview; and in training new detectives in effective techniques.

On the suspects' side, recordings prevent officers from failing to give the Miranda warnings, using improper tactics or later exaggerating or misstating what was said or done during the interview. Innocent suspects are afforded the opportunity to record their explanations and exculpatory leads.

When disagreement occurs, the judge or jury sees or hears the recording; little or no testimony is required from either side. Lengthy courtroom appearances by police officers are avoided, and defense lawyers and prosecutors are able to evaluate their cases in advance, often eliminating the need for lengthy judicial hearings.

Trial and reviewing court judges are no longer called upon to evaluate disputed testimony about what went on behind the closed doors of the police station and then wrestle with the question of where the truth lies.

The cost of providing recording equipment is relatively modest and is more than offset by savings. Police, prosecutors and defense lawyers (often appointed at public expense) do not have to prepare for and participate in court proceedings about what occurred, and judges do not have to hear and rule on the disputes. And litigation and potential judgments for alleged coerced confessions and wrongful conviction are avoided if the recorded police conduct is appropriate.

The detectives and supervisors to whom we've spoken consistently insist that their ability to obtain confessions is not impaired (in most felony investigations in Maryland, suspects need not be told that a recording will be made).

But if a suspect will not cooperate if recorded, the detectives turn the machine off and proceed with the old-fashioned "scribble-then-type" format.

Experience in police and sheriffs' departments throughout the United States confirms that police use of readily available, inexpensive modern recording technology works to the advantage of all concerned in the criminal process - law enforcement personnel, citizens who are questioned while in custody and their lawyers, prosecutors and courts.

Perhaps most important, recording interrogations increases public confidence in the state's criminal justice system. Passing this legislation in Maryland would substantially enhance the accuracy and fairness of the state's criminal justice system so that the guilty are convicted, the innocent not mistakenly charged and the perpetrators apprehended.

Tom Sullivan is a former U.S. attorney in Illinois. His e-mail is tsullivan@jenner.com.

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