From the President: Mandatory videotaping of interrogations

From the President Lawrence S. Goldman From the President December 2002 4   Mandatory videotaping of interrogations At the close of every legislative session, I breathe a sigh of relief. I know then that, barring unusual circumstances, for at least a few months there will be no laws enacted esta

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At the close of every legislative session, I breathe a sigh of relief. I know then that, barring unusual circumstances, for at least a few months there will be no laws enacted establishing new crimes, expanding the death penalty, or changing the rules of evidence to favor the prosecution further. I know then that the efforts to push, or pierce, the constitutional envelope are temporarily at bay.

Virtually every legislative development in the criminal law in the last few years has been designed to criminalize more behavior, punish defendants more severely, or make the chances of conviction greater. Considerations of fairness are an afterthought, if a thought at all. The role of the criminal defense bar and our allies has been defensive, to oppose or limit these encroachments on liberty. Only occasionally do we propose affirmative legislation to reflect our vision of due process and justice. And only rarely is such legislation enacted.

The reason for our relative lack of success in the legislative arena is obvious. “Crime” is an issue about which there are no political differences. All citizens want less crime. Legislators are reluctant to vote for, let alone push, legislation opposed by “law and order” groups because of fear that such positions would be detrimental to them politically.

Reasonable minds

There are many legislative issues about which reasonable minds may differ, depending on their viewpoints and goals. There are some issues, however, about which I believe reasonable minds cannot differ. Among these are legislative and other efforts to enhance the accuracy of the fact-finding process at trial (such as the Innocence Protection Act now gaining momentum in Congress).

In the lead article in this issue of The Champion, Daniel Donovan and John Rhodes make a persuasive case for mandatory recording of police interrogations. As they point out, recording “provides a neutral, objective account of what transpired .... [W]hether the issue is the admissibility of statements, the reliability of the statements, or what was said, recording will advance the truth-finding process and justice.”

By rulings of their highest courts, Alaska and Minnesota require the police to electronically record custodial interrogations. Texas, Great Britain, Canada and Australia have similar requirements. Illinois Governor Ryan's Committee on Capital Punishment has also made a recommendation for mandatory videotaping. Some legislatures and some police departments are considering establishing such a policy. NACDL has written the Director of the Federal Bureau of Investigation and the Commissioners of the New York City and Los Angeles Police Departments urging them to adopt such procedures.

Police coercion

At a conference in Beijing last month with Chinese legal officials and attorneys and NACDL representatives, a Chinese judge expressed his difficulty in deciding whether to credit a prisoner's claim that his confession was false and a result of police coercion. The testimony of the police and the accused were, as expected, diametrically opposite, and there was no physical evidence. The Chinese judge asked, “Would not mandatory videotaping be helpful?”

The obvious answer is “yes.” Mandatory videotaping (or even audiotaping) would be helpful to judges deciding the difficult “he said, she said” swearing contest between the police and the defendant about whether a statement was coerced. It would be equally helpful to a jury deciding whether the defendant in fact made an admission and, if so, under what circumstances.

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To be sure, video (or audio) recordings are often devastating to a defendant's contention that he or she was coerced or did not in fact make the statements the police claim. Defense lawyers will sometimes be unable to make plausible arguments that a confession was forced or that the police testimony was untrue. On the other hand, and more importantly, mandatory videotaping will limit (but not eliminate) police coercion or police perjury concerning defendants' statements. And, in the interest of society, it will lead to a more accurate determination by the trier of fact.


I can think of no substantial argument against the requirements of mandatory taping of custodial interrogation. Law enforcement authorities may argue that such a requirement would require additional funding, but the cost of necessary equipment is small. They may argue that any additional requirement imposed upon the police might lead to the preclusion of relevant and trustworthy evidence when the police even in good faith fail to tape interrogations, but *8 that is an argument only for sound legislative and judicial lawmaking. Society should not fail to enact reasonable rules because state officers will sometimes violate them.

They may also argue that mandatory taping will lead to fewer statements, and consequently fewer convictions because it will hamper police techniques and stress to detainees the gravity of making admissions, but such an expectation is contrary to past experience with police taping (and with Miranda warnings, about which a similar argument has been made) and, in any case, is a strong reason for its institution. They will not argue the principal reason some oppose mandatory taping: that it will hinder the police from lying with impunity.

Mandatory videotaping of police interrogations is an idea whose time has come. It is a sound improvement in criminal justice that benefits the system, and not only one side, and that public officials can support without fear of losing votes. It is part of NACDL's State Legislative Network program. As criminal defense lawyers, and as citizens, we should push for its establishment by our legislatures, our city councils, our local police departments and our courts.

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Lawrence S. Goldman is the 44th President of NACDL. Previously he was Secretary, Treasurer, First and Second Vice-President and President-Elect. A Life Member of NACDL, he received the Robert C. Heeney Award in 1998. A veteran criminal defense lawyer of more than 30 years, he is a Past President of the New York State Association of Criminal Defense Lawyers (NYSACDL) and the New York Criminal Bar Association.

Lawrence S. Goldman
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