Criminal investigations must be recorded

Megan J. Davies

Confessions are powerful and often essential evidence that can determine the guilt or innocence of an accused in court. However, if a confession is forced it can put an innocent person behind bars for years with devastating consequences for the individual as well as a loss of confidence in the criminal justice system. For every person wrongly incarcerated, there is a victim who does not receive justice and a criminal who is released.

Across the country, 33% of the country’s 367 or so wrongful convictions overturned by DNA evidence involved some form of false confession. It is extremely difficult for jurors to understand why a person would admit to a crime that they did not commit. In addition, most police interrogations that lead to false confessions are not recorded in audio or video. If an officer uses coercive techniques to obtain a confession and chooses to record only the confession and not the entire interrogation, the prosecutor could still decide that this is strong evidence. Then the judge and jury would hear only the confession and ignore the circumstances that led to it.

This week, the Delaware House of Representatives brought us closer to 29 other states and the District of Columbia to record the interrogations in custody. By a unanimous 41-0 vote, House Bill 215, which would require police to record interrogations of suspects in custody, was passed. If the legislation is passed by the state Senate, Delaware would join with 29 other states and the District of Columbia in recording interrogations while in custody. Although Delaware has a registration policy in place, no law requires it and it is mostly voluntary. Without law, there is no consistent state-wide practice or legal enforcement mechanism.

The Department of Justice and even critics of a requirement readily admit that recording interrogations is “agreed good practice”. Failure to ensure that this best practice is available to all defendants is a tacit acceptance of unequal justice over the small inconvenience of implementing a new policy.

Critics argue that the requirement to record interrogations could make it more difficult to prosecute serious crimes. However, where we need record protection the most is in serious crime, where police-induced confessions occur most often. In an analysis of 125 recent false confessions, over 80% occurred in homicide cases. Too often, when the stakes are high, human nature takes precedence and the desire to “get the bad guy” outweighs good practice. In a system that is supposed to seek and protect the truth, the recording of interrogations is the simplest and most effective safeguard we can have.

HB 215 would protect not only the defendant, but also the state and law enforcement. For the innocent, the recording of interrogations would create a recording of the interaction leading up to the confession, ensuring that a suspect’s rights are protected and that protections are in place for those with limited mental capacity or other vulnerabilities. that make them more susceptible to false confessions. For law enforcement, the tapes provide the strongest evidence to secure convictions, reduce defense requests to suppress statements and confessions, and protect officers from frivolous allegations of misconduct. For the justice system, this improves efficiency by reducing the time and resources spent arguing what happened in the interrogation room since everything is recorded.

Another concern we often hear about is the cost of registration. But we can look to other states that do. As investigated by Project Innocence in 2015, agencies in Massachusetts and Wisconsin have used portable digital video cameras that sell for between $ 50 and $ 100, while several others said they use body cameras to record interrogations. As illustrated by Alaska, which has required interview recording since 1985, states with large rural communities have proven that this practice can be adopted by agencies large and small. In addition, law enforcement officials already have privileged access to advanced and expensive technologies, including cell phone tracking devices and facial recognition software. body worn camera.

Experience from other states also shows that registrations would actually reduce costs, saving taxpayers millions of dollars in lawsuits arising from unfounded allegations of misconduct. The tapes also reduce removal motions based on these allegations and reduce the time officers have to spend in a courtroom to testify about what happened. The only party that does not benefit from the recorded interrogations is the real culprit.

We have the opportunity this year, with the HB 215, to influence structural change. The practice of recording interrogations is the most widely recommended safeguard against wrongful convictions involving false confessions and has been endorsed by national law enforcement groups such as the Major Cities Chiefs Association, the International Association of police chiefs and the American Bar Association.

As early as 1948, the United States Supreme Court recognized that law enforcement is engaged in the competitive business of finding crime, and that it is important to inject neutrality when we can. In 2021, we can codify more neutrality in our police services by adopting HB 215. We should all want a system that leaves us less questions about an individual’s true guilt or innocence. The recording of interrogations allows us to do this.

Megan J. Davies is the Executive Director of Innocence Delaware.

Mark M. Gagnon