The opposition of Department of Justice officials toward requiring electronic recordings of interviews of felony suspects is extremely puzzling.
They are well aware of the widespread agreement among state police, sheriffs and prosecutors, based on years of experience, that electronic recording of suspect interviews is a tremendous boon to law enforcement. What then seems to be the problem with the ranking DOJ officials, who usually lead in the use of the newest and best law enforcement tactics? Why do top DOJ officials persist in opposing electronic recordings?
To put this discussion into perspective, I will first explain the process, then recount the experiences of a vast number of state law enforcement agencies, and finally take a critical look at the DOJ position.
Definitions: We are dealing with interviews of persons under arrest (not free to leave), being questioned by an FBI, DEA or ATF agent in a detention facility, for example, a federal or state building, a police station, and the like. The equipment should be turned on before the reading of the suspect’s rights (the Miranda warnings), and turned off when the session is finished. The DOJ investigative agencies – FBI, DEA and ATF – as other federal agencies, have access to the most current, sophisticated recording equipment, which agents use on a daily basis, for example, to record conversations between confidential informants and those suspected of violating federal laws. They have both the means and the expertise,
Experiences of others. During the past eight years, my colleagues and I have spoken to and received written reports from over 1,000 officers in every state who record suspect interviews in a variety of felony investigations, as well as many local prosecutors. They unanimously favor the practice. Not one expressed a desire to return to non-recorded interrogations. Why? Because recordings show exactly what occurred, cement confessions and admissions of guilty suspects, often indicate when suspects are innocent, and prevent later claims of use of improper tactics or failure to give the required advice of right (the Miranda warnings).
When we began our inquiries in 2003, recordings were required by state supreme court rulings in two states (AK, MN), none by statute. Since then, nine states have enacted mandatory recording legislation (IL, ME, MD, MT, NE, NM, NC,. OR, WI) , and the supreme courts of two others have adopted rules requiring recordings (IN, NJ). Other states are in process of considering mandating electronic recording of custodial interviews (AR, CT, MI, RI, VT), and the National Conference of Commissioners on Uniform State Laws last July adopted a model state recording statute, for submission to legislatures throughout the country.
Our inquiries have disclosed that police, sheriffs and prosecutors throughout the country now realize that recordings of suspect interviews are a terrific law enforcement tool. Why then has the Department of Justice not adopted the practice?
The DOJ litany of horrors. In 2006, DOJ officials asked the FBI, DEA and ATF to submit written responses as to their positions with respect to mandatory recording of felony suspects who are in custody. Their responses, all negative, conjure a parade of disasters if they were required to record. Here are the reasons they gave for opposition, and a shorthand version of real world reality:
- In the past, agents’ testimony has been accepted by most judges and juries.
For obvious reasons, judges and jurors understand the superiority of oral and visual recordings over verbal recounting of past events based upon scribbled notes, later typewritten reports, and efforts at later recall. They are increasingly skeptical of agents’ failure to activate accessible recording equipment. The days of automatic acceptance of agents’ testimony are over.
- Recordings may interfere with agents’ rapport building methods, some of which may be deemed inappropriate by judges and jurors.
This is a disturbing rationale for not recording, because it implies that agents, having sworn to tell the whole truth, should omit complete and candid testimony about what occurred during interrogations. If they deliberately do so, they may commit perjury, and those who engender perjury commit subornation. In any event, the objection is fanciful. Many detectives have told us that, when being recorded, they are careful about what they say and do, in order to avoid using tactics or language that may be deemed coercive. But they do not complain that recordings have inhibited effectively conducting interviews.
- Suspects will “clam up.”
DOJ agents are not required to advise suspects that interviews are being recorded. Moreover, detectives often say that suspects expect to be recorded; few object. If and when they do, the solution is simple: record the refusal, and turn off the equipment.
- The equipment may not operate properly, etc.
This objection covers a host of supposed practical difficulties or oversights that may prevent a recording from being made. Most statutes and court rules exempt unintentional or mistaken failures to record, and when exigent circumstances make recording impractical.
- Valid confessions may be refused admission into evidence.
The preferred consequence of an unexcused failure to record is that the judge should admit testimony of the suspect’s statement into evidence, and give a cautionary instruction to the jury, for example, that the interview was supposed to be recorded in order to provide an exact recounting of what took place, hence jurors should weigh the testimony with great care.
- Costs will be prohibitive.
Throughout the country, in large, medium and small departments, costs have not posed an impediment to recordings. Audio equipment is acceptable, although video is preferable and readily accessible to DOJ agencies. Savings from recordings far exceed whatever costs are involved: drastic reduction in pretrial motions to suppress; more pleas of guilty, hence fewer trials, appeals and post-conviction procedures; less time spent during pretrial motions and at trials about what occurred during unrecorded interviews; and fewer damage suits for using improper tactics during questioning.
Long story short – the objections interposed by the DOJ do not withstand scrutiny. They appear grounded in stubborn adherence to outdated methods, and unaccountable refusal to accept the benefits of current technology.
President Barack Obama – who was chief sponsor of the 2003 recording bill in the Illinois Senate – has power by issuance of an Executive Order to require all federal investigative agencies to make electronic recordings of custodial interviews. It is high time for him to do so.
Thomas P. Sullivan, a partner at Jenner & Block LLP in Chicago, was the U.S. Attorney for the Northern District of Illinois from July 1977 to April 1981. He has been chairman of the Northwestern University Law School Center on Wrongful Convictions advisory board since 2004. From 2004 to 2010 he chaired the Ilinois Capital Punishment Reform Study Committee.