- Published: 03 March 2013
- Written by Bill Branham
New 'videotaping of custodial interrogation' laws are one of the many responses coming out of what we have learned from documented wrongful convictions. It is alarming how many wrongful convictions have been based on "confessions" made by innocent suspects which were later recanted, but which seem to carry an inordinate amount of weight with jurors. 16% of wrongful convictions include "false confessions", but a closer look reveals that if you are a youth, your chances are 5 times more likely you will make a false confession and 9 times more if you are mentally challenged. So, this law will most help those groups of people who are susceptible to manipulation by authority figures. Juries can't seem to get past "Why would a person confess to something, unless they did it?". They never see all that led up to that 'moment of truth'. But what if a jury were allowed to see videotape, not just of the "confession" but the entire interrogation that led up to the confession? Video tape would not only help demonstrate whether or not a confession was voluntary, but also shed light on the more subtle, more important question, "Is it reliable?". How does a law like this shape expectations in a courtroom and what are the consequences if the police fail to follow the law?
As do most new videotaping laws, Michigan's covers the basics: it requires that law enforcement videotape ALL custodial interrogation for major crimes. In Michigan "major crimes" are defined as anything punishable for 20 years or more. It sets a standard for equipment which must supply a time stamp and have certain anti-tampering features. It includes a process for the state commission to inform the legislature about the need for funds to help agencies to purchase quality equipment. Funds can also be provided for training and there are appropriate time periods for equipment to be purchased and people to be trained before the law is applied to them.
Most believe that the benefits of videotaping will early on demonstrate it's worth to police and prosecutors to convict the guilty. They also know that inconsistencies in following this law will create suspicion and, if they want to secure a conviction, it will be in their best interest to videotape right from the beginning according to the law.
I'm going to use as a benchmark the Uniform Law Commission's (ULC) version of it's Electronic Recordation of Custodial Interrogations Act, which it sent to all 50 states in the fall of 2010. Much of my information comes from Andrew Taslitz, in his article High Expectations and Some Wounded Hopes: The Policy and Politics of a Uniform Statute on Videotaping Custodial Interrogations. I have included it as a download for those who want to go more in depth. We would also like to refer you to our section on false confessions.
It is a good thing that Michigan has joined an increasing number of states requiring videotaping of the entire custodial interrogation. But by comparing it to the ULC's version and several other states that have adopted such a law, we can get a better perspective on how far the law has taken us and how far we still have to go. Laws without consequences rarely have much effect. So what are the possible consequences if these laws are not followed and in particular what are the consequences which Michigan has chosen?
There are four: three in the courtroom and one at the police station.
1. The confession is suppressed. If a self-incriminating confession is one of the most persuasive pieces of evidence a prosecutor can have, then to suppress that evidence so that the jury does not even know one was made, is the worst thing that can happen. As of spring, 2012, only three states had taken this "no exceptions" approach: Alaska, Indiana and Minnesota. If the videotaping law is not complied with, any confession taken will be suppressed, period. Most states, however, leave some room for the prosecution to explain and justify why they did not comply with the law. A few must meet a very high standard in explaining why this was not done with corroborating evidence that would support that the confession was made; not just that the person is guilty. The continuum goes all the way to the most lenient, which includes Michigan, where a failure to comply with the law does not stop the prosecution from testifying that the person made a confession and the content of that confession, "if the court determines that the statement is otherwise admissible." In other words, pre-trial suppression of a confession can be based on already existing law, but not because the police failed to comply with the videotaping law. This law raises the bar in promoting better police methods for those who follow it. But if a department fails to comply, the bar is exactly in the same place. The first line dealing with the consequences of "a failure to record a statement as required" states that it "[Does] not prevent any law enforcement official present during the taking of the statement from testifying in court". The law essentially goes out of its way to say that there will be no consequences for the prosecution for failing to comply with the law - a law designed to protect people's constitutional right against self-incrimination. Hmmm....
It has been common place for a couple of decades now for the actual confession to be videotaped and presented to the jury. The purpose of these laws are so the jury will not be dependent upon the interpretation of events by the police and prosecutor that led up to the confession. It follows that in order to change common practice, such a law would also include some penalties or counteracting measures when the law is not complied with but the judge still allows the confession to be presented as evidence. The idea of not completely trusting the police is a foreign concept to most jurors, who have never been in this kind of position before and probably never will again. These next two measures are designed to be a crash course, a quick education, to give jurors some perspective in areas they have no experience in.
2. Cautionary Jury instructions. An objective, unbiased view will quickly conclude that this situation puts a tremendous amount of trust in the prosecution to tell the truth. Sometimes, however, they do not tell the whole truth and it comes down to the prosecution's word versus the defense. Juries will most always trust the prosecutor over the accused. Sometimes the problem is not that the police are lying. They may not understand that their tactics can produce falsehoods, instead of the truth, because intimidated suspects may give in and say what they think the police want to hear in order to get out of the immediate situation.
Without the jury being able to see for themselves what happened as a safeguard, the second level of consequence is for the jury to be instructed by the judge as to the law and how this non-compliance by the police should caution them in their consideration of such testimony.
There are many different viewpoints on the effect of jury instructions. The first effect is on the police and prosecutors long before the trial. Knowing what will be said to the jury, should they not comply with the law, is a strong motivator. It is a deterrent to police non-compliance. Some state laws include the actual instructions the judge is to give. These tend to heavily favor the defense because the lawmakers don't want anything to be lost on the jury as to the severity of the prosecution failing to comply. Other states, such as Michigan, simply require that the judge deliver instructions to the jury, which include the fact that videotaping the entire interrogation is the law and that the jury is to consider this lack of compliance in their deliberations. This leaves a lot of discretion up to the judge. Michigan's language is especially weak in that it only requires the judge to instruct the jury that they may consider the absence of recordings when listening to the prosecution's testimony of the alleged confession; not that they have to.
Jury instructions may give jurors a "heads up", but there is little evidence that instructions increase the accuracy of the jury's powers of discernment. However, there is evidence that when a jury sees a video of the entire process, that they have a better gage on whether the confession was voluntary and whether it is reliable. (These two factors are beyond the scope of this article. Suffice to say that the law has interpreted "voluntariness" primarily in terms of coercion by the authorities. In other words, a mentally challenged person might easily want to say what the police want to hear and the voluntariness of the confession will not be in question, but the reliability of it should be.) It is anticipated that a culture which assumes the videotaping of interrogations will develop. However, since Michigan provides no direct consequences for not following the law, it is easy to conceive that the police and prosecution will make a calculated decision on whether videotaping will increase or decrease their chances for a conviction. They personally have nothing to lose.(see #4)
3. The use of expert testimony in the area of false confessions.This consequence is considered to be more extreme. To date, no state has opted for this as an appropriate consequence of non-compliance. Even the Uniform Act does not recommend this, though a very vocal minority of the committee felt it was absolutely necessary, which is why I decided to include this as a consequence for consideration. Taslitz states "the expert testimony provision adds deterrent value because police and prosecutors will fear that the expert testimony will make jurors more skeptical than they otherwise would be about the weight of the unrecorded confession." It has long been a favorite of police to videotape the actual confession. It is against the law to destroy evidence, so prior to passing this law, it was typical for the videotape not to be turned on until the suspect agrees to repeat his/her confession for the camera. Because confessions, true or false, have such weight with juries, some believe that a confession which has no video record of the events preceding it, has to be countered with expert testimony on the topic of "false confessions". The jury needs to understand what causes false confessions and how prevalent they are in given situations. Michael Palladino, the head of the NYPD Detectives Union, said, “I think once a jury sees what goes on in an interrogation – the tricks of the trade that are legal, such as trickery and deceit – there will be sympathy for criminals."! It is not a world the average juror understands. Expert testimony would not be designed to create sympathy, but to give the jury a sober understanding of the conditions that can cause a person to confess to something they did not do. The judiciary tends to feel that expert testimony has too much influence on juries. However, Taslitz points out that empirical studies have shown this concern to be largely unfounded. Jurors who are exposed to expert testimony spend more time deliberating and are more sensitive to certain aspects, but few jurors take expert testimony uncritically (Taslitz, p. 433).
The case of Davontae Sandford is a prime example of the practice. They want to prove beyond a doubt that this 14 year old, mentally challenged boy confessed, and that is exactly what was presented. What was not shown are all the steps that led to the "confession," which included over two days of hanging out at the police station, playing video games with no lawyer present because his parents did not know he was a suspect! And yet Judge Sullivan allowed this "confession" as evidence. See the video for yourself!
4. Disciplinary action being taken if the police do not comply with the law. The consequences of not videotaping mentioned so far have all been in the courtroom. Another possible consequence is disciplinary action which would be taken toward those individuals involved and in authority who allowed the law not to be followed. The Uniform Act requires mandatory administrative discipline. Indeed, if the interrogation does not produce a confession which the prosecution chooses to offer as evidence, without some sort of administrative discipline there will be no consequences whatsoever for the police failing to videotape interrogations. There are many things that can go on in an interrogation that don't have anything to do with the suspect's innocence or guilt. Videotaping is a way of reminding the police that they will be held accountable for how they interrogate suspects. It cannot be 'videotaping by choice', unless the suspect chooses to not be videotaped. (The police can note the objection and videotape anyway if they think it best.) Unlike outcomes in the courts, which no one can ever guarantee, some sort of administrative discipline must be in place that the police know will be acted upon if they do not follow the law. Regrettably, there is no provision for administrative discipline in Michigan's law.
We are all glad that Michigan has put into place such a law. Hopefully, adhering to this law will become routine because it is best for all concerned. The problem is, it has no bite, little consequence if not followed. It is the exceptions, the times when the law is not followed, that may be the very occasions when it would have saved someone from being wrongfully convicted. Additionally, with no consequences, there may end up being a disparity in how strictly it is followed in different parts of the state.
Evaluating MI's Videotaping Law
|That it exists||Not to be underestimated. Beginning steps to establishing new practices.|
|Provision to suppress confession||Non-existent. Must rely on other laws to suppress.|
|Cautionary Jury Instructions||Yes, but very weak.|
|Use of Expert Testimony||No, but no state has adopted this.|
|Disciplinary Action for non-compliance||
Non-existent. Departments may develop their own disciplinary rules,
The thing that I found most disturbing in Michigan's version of this law is that it categorically denies that videotaping has anything to do with one's rights.
What they fail to understand is that this technology, while not being a right in itself, is the best means today of protecting that right.Really? "But that's not what I said! Why won't you record what I said?..." Is it not a right to insist that any words used to incriminate me are actually my words and not something others made up????? Perhaps they thought that videotaping cannot be construed as a fundamental right because we lived without it up until now. What they fail to understand is that this technology, while not being a right in itself, is the best means today of protecting that right. In essence, they are saying "We are going to say it is your 5th Amendment right not to incriminate yourself, but when it comes to the means to safeguard that right, well, that's going too far!" So, to make a point declaring that videotaping our interrogations is not a right, it feels like we have taken two steps backwards. I hope I'm wrong or that this statement will soon be taken out of the law as well as strengthening the repercussions so that the police and prosecutors cannot afford the luxury of selecting when they comply.
*"Videotaping is the old term, which has tended to be carried through even though recording tape is no longer involved.
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