Good Day For Justice: DOJ Reverses Ban On Recording Of Post-Arrest Interrogations
For more than a century, the United States Department of Justice has barred electronic recording of post-arrest interrogations. Under the old policy, when a defendant was arrested by the FBI, DEA, ATF or U.S. Marshal Service, an agent would take handwritten notes during the course of the interview. Those notes would later be collected into a formal report and the original notes would be destroyed. This system prevented the judge or jury from directly observing the process by which a confession was obtained.
Under the new policy that will go into effect on July 11, there is a presumption that all post-arrest custodial interrogations for all federal crimes will be recorded. Video recording will be required, if possible, and audio-only recording will be allowed only if video equipment is not available. The policy requires that recording begin as soon as the subject enters the interview area and continue until the interview is completed.
This new policy is a huge advance for justice because:
The amount of information captured from interviews will be greatly expanded;
Video recordings will increase the reliability of confessions;
Video recordings will increase the public confidence in the accuracy and fairness of the criminal justice process.
A Picture Is Worth A Thousand Words
Federal law enforcement agents could never capture even a fraction of the vast amount of information conveyed during the course of an interrogation. Agents were not supposed to act as stenographers, but instead take notes that would capture the key information conveyed by the defendant. Of course, immediately after arrest, the agent might not know what information would later prove to be the most important. And agents had to rely upon their ability to accurately hear and understand the words used by the defendant. Moreover, even a stenographer would not capture the non-verbal information conveyed by facial expressions, tone of voice, volume and body language. The length of a pause between a question and an answer sometimes is the crucial evidence to distinguish a statement from a guess. A video recording puts the judge or jury in the interview room with the defendant and the agents.
Video Recordings Will Increase The Reliability Of Confessions
Under the current system, if a defendant confesses during interrogation, that confession must be conveyed to the judge or jury by the interviewing agent. This requires the judge or jury to assess the credibility and capability of the agent. Faced with a confession, defendants frequently allege that (1) they were not properly informed of their Miranda rights to remain silent and to have an attorney, (2) that they were physically coerced during the course of the interrogation, (3) they did not have the mental capability or language skills to understand the questions being asked, (4) the interrogation process was so lengthy that they were overwhelmed, (5) the interviewing agent provided details of the crime during the course of the interrogation that later became part of a false confession or (6) they simply did not make the confession, which has been falsely attributed to them. A video recording will provide the judge or jury an objective record to evaluate the voluntariness and reliability of a confession.
The use of video recordings will also improve the reliability of confessions because law enforcement officials will know that their interrogation techniques will be subject to public scrutiny. Obviously, a videotape makes forbidden physical coercion of a defendant impossible to hide. It also helps limit the permissible psychological tactics that law enforcement utilize. For example, as the Supreme Court held in Frazier v. Cupp, police may decieve a defendant (by falsely stating that a co-defendant had confessed) during the course of an interrogation.
Video Recordings Will Increase Public Confidence In The System
Federal trials, unlike most state trials, are not televised. When a confession is the key evidence against a defendant, the public (outside of those who actually attend the trial) never has the opportunity to evaluate the reliability of that evidence. At most, the public can read an account of the agent's testimony about the confession. A video recording that has been admitted into evidence, on the other hand, will be available for the public to evaluate.