Suspects Must Be Recorded
Justices Tell Police to Start Tape at First Interrogation
Oct. 18, 2005
Star-Ledger (New Jersey)
By Robert Schwaneberg
Police will be required to electronically record interrogations from the moment a suspect has been informed of his rights, under new rules adopted by the state Supreme Court yesterday. That puts New Jersey among only a handful of states where the courts require audio- or videotaping when a suspect is questioned.
"The New Jersey Supreme Court is really at the forefront of where the rest of the country ought to be on this issue," said Public Defender Yvonne Smith Segars.
Attorney General Peter Harvey said he believes the new rule, which is more extensive and tougher than one he already imposed, will be "helpful to law enforcement and the public." He said most police and prosecutors already have taping equipment -- to comply with his directive -- and "it's not that expensive to go and buy it if you don't have it."
Steven Drizin, legal director of the Center on Wrongful Convictions at Northwest University School of Law in Chicago, called the court's action "a giant leap forward in the area of preventing wrongful convictions."
In adopting the new rule, the justices accepted recommendations made last April by a committee of judges, lawyers, prosecutors, public defenders and police. Members of that panel said requiring an audio or video recording of an interrogation should benefit both defendants and prosecutors.
"Up to now, it was one person's memory against another person's memory," said Assistant Deputy Public Defender Marcia Blum, a member of the committee.
Said Ocean County Prosecutor Thomas Kelaher, who also served on the committee: "Trials are a search for the truth. By doing this electronically, there's no question this is what the guy said."
Drizin said the most significant aspect of the rule is that it requires police to start taping an interrogation earlier than they must under guidelines handed down in 2004 by Harvey's office.
Those guidelines require only that the suspect's "final statement" or confession be taped. Now the taping must start much earlier -- as soon as the person being questioned at a place of detention, such as a police station, is advised of his rights.
"One can't really assess the truth or falsity of a confession without seeing the entire process," Drizin said. He added that only a tape of the entire interrogation would reveal whether "details of the crime that only the true perpetrator would know" came from the suspect or were "inadvertently or intentionally" supplied by his interrogators.
Harvey said he expects to amend his guidelines to include the court's ruling.
Kelaher said some veteran detectives fear that seeing them befriend a suspect in order to get a confession might alienate jurors, but prosecutors in the few states with taping requirements have not found that to be a problem.
"The juries understand that's the way you do business," Kelaher said.
Unlike Harvey's guidelines, the court rule also carries sanctions. Failure to record an interrogation could lead a judge to exclude any ensuing confession from use at trial. At the least, jurors would be told they had been deprived of the full interrogation and should regard any confession "with great caution."
The rule allows some exceptions, such as when tape-recording is not feasible or when a person blurts out a confession to a crime of which he is not suspected.
The new taping requirements will be phased in, starting in January with homicide interrogations. They will expand in January 2007 to include interrogations involving arson, robbery, burglary and sex, drug or weapons crimes punishable by more than five years in prison.
Robert Schwaneberg covers legal issues. He may be reached at rschwaneberg@starledger.com or (609) 989-0324.