The Solution: Our Reform Agenda

Electronic Recording of Custodial Interrogations

In Electronic Recording of Custodial Interrogations: A Policy Review (pdf), The Justice Project details best practices, a comprehensive rationale for changes in procedure, as well as background information on false confessions, costs and benefits, a model policy, and the experiences of jurisdictions that currently record interrogations. Hardcopies of the policy review are available on request. If you are working directly on this issue in your state, or you would like additional information, please contact info@thejusticeproject.org

Electronic recording of custodial interrogations has emerged as a powerful innovation and fact-finding tool for both sides of the criminal justice system. A central objective of the criminal justice system is to accurately ascertain the facts surrounding criminal offenses in order to correctly identify perpetrators so that they may be punished. The virtue of electronic recording of custodial interrogations, and its strength as a public policy, lies not only in its ability to help guard against false confessions, but also in its ability to develop strong evidence to help convict the guilty.

Confessions are often viewed as the most powerful evidence at trial, and can even overcome other types of evidence pointing to the defendant’s innocence, such as forensic proof. Studies suggest that false confessions played a significant role in 15% - 25% of wrongful conviction cases. Electronic recording of custodial interrogations, however, provides an objective record with which to effectively evaluate the voluntariness and reliability of a suspect’s statement.

Some liken creating an objective record of the interrogation to the use of DNA evidence. In some cases, DNA will provide compelling evidence of guilt, and in others it can exonerate the innocent. Likewise, an electronic recording of an interrogation provides an objective record of a critical phase in the investigation of a crime – tangible evidence that can be carefully reviewed for inconsistencies or to evaluate the suspect’s demeanor and appreciate the context in which a statement is provided.

Many law enforcement personnel, scientists, legal scholars, and policymakers agree – in order to reap the benefits that electronic recording affords police, prosecutors, suspects, and the system as a whole, the entire custodial interrogation must be recorded in criminal cases.

Recording should begin at and include the delivery of the suspect's Miranda rights and continue, unaltered and uninterrupted, until the end of the interview.

In addition, a number of other considerations factor into a model policy:

Though state practices vary, electronic recording in all cases involving serious felonies promises the greatest benefits to law enforcement. In addition, it is especially urgent to record interrogations involving juvenile suspects and those whom authorities have reason to believe are mentally retarded or mentally ill. These populations are particularly vulnerable to interrogation tactics and significantly more likely to falsely confess.
Effective recording policies include reasonable exceptions to the recording requirement, so as not to place an undue burden on law enforcement and to allow for the admission of voluntary statements that went unrecorded for valid reasons. For example, a suspect's statement should be admissible if officers made a good faith effort to record but were unable to do so because of equipment malfunction or power outage.
States should have remedies available when no electronic recording is made of an interrogation and when the circumstances do not fall within reasonable exceptions.
Electronic recording policies should include provisions to ensure electronic evidence is handled and preserved properly, and to prevent loss or premature destruction. Recordings need to be clearly identified and catalogued by law enforcement personnel. Most importantly, the recording must be preserved until all appeals, including post-conviction and habeas proceedings, are final or until federal or state statutes of limitations bar prosecution.
While video recording devices are preferable in order to capture a full and accurate account of the circumstances surrounding a confession for judges and juries, some departments have expressed concern about the costs of implementation. Audio recording is an acceptable alternative that can be implemented at negligible cost.
Though the evidence that disclosure of electronic recording does not inhibit effective interrogations, many agencies prefer the option of inconspicuous recording devices in interrogation rooms, and statutes can be tailored to accommodate this preference.

The most compelling arguments for recording custodial interrogations come from detectives and prosecutors who have experience working under a recording policy and enthusiastically embrace the practice. A number of states, including Maine, Minnesota, Illinois, and Alaska, as well as the District of Columbia, have statewide policies requiring electronic recording of custodial interrogations in certain types of cases. What’s more, to date, more than 450 police departments in 50 states have independently adopted the policy.

As education on the inherent benefits of electronic recording continues, the momentum for procedural reforms also continues to build. In 2004-2005, state legislators in 25 states introduced legislation seeking to mandate the recording of custodial interrogations. In addition, editorial boards and criminal justice commissions across the country continue to hail electronic recording of interrogations as good policy for law enforcement.

The Justice Project has published a comprehensive briefing book, Electronic Recording of Custodial Interrogations: A Policy Review (pdf), which details best practices, a comprehensive rationale for changes in procedure, as well as background information on false confessions, costs and benefits, a model policy, and the experiences of jurisdictions that currently record interrogations. An issue overview (pdf) is also available.

Hardcopies of the policy review are available on request. If you are working directly on this issue in your state, or you would like additional information, please contact info@thejusticeproject.org

Related Studies:

The following materials are essential reading for individuals interested in further study of the issue of electronic recording of custodial interrogations.

Electronic Recording of Custodial Interrogations: Everybody Wins

FBI Law Enforcement Bulletin (pdf)

American Bar Association Section of Criminal Justice and The New York County Lawyers’ Association Report to the House of Delegates on Videotaping Interrogations

Richard Leo and Steve Drizin, The Problem of False Confessions in the Post-DNA World

Related Cases:

Earl Washington, Jr.
In 1984, a Virginia jury convicted a mentally-retarded man of rape and murder and sentenced him to death based almost entirely on a false confession elicited after two days of interrogation. In October 2000, after DNA testing had provided unassailable proof of his innocence, Washington received a full pardon, and in 2006, a federal jury awarded him $2.25 million in damages.

Gary Gauger
In 1994, Gary Gauger was wrongfully convicted and sentenced to death for the murder of his parents at their McHenry County, Illinois farm. No physical evidence linked Gary to the crime, but after an all-night interrogation, he made unrecorded statements that police and prosecutors claimed constituted a confession. In 1996, Gary’s conviction was reversed by an appellate court. When evidence emerged implicating members of a notorious motorcycle gang in the murders, the prosecution decided to drop all charges against him. The next year, the gang members were convicted in federal court.