Police recording of custodial interrogations
| DOI | 10.1177/1461355717750172 |
| Author | Mary K Stohr,Brandon L Bang,Craig Hemmens,Duane Stanton |
| Published date | 01 March 2018 |
| Date | 01 March 2018 |
| Subject Matter | Articles |
Article
International Journal of
Police Science & Management
Police recording of custodial interrogations:
2018, Vol. 20(1) 3–18
ª The Author(s) 2018
A state-by-state legal inquiry
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DOI: 10.1177/1461355717750172
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Brandon L Bang
Department of Criminal Justice, West Texas A&M University, USA
Duane Stanton
Department of Criminal Justice and Criminology, Washington State University, USA
Craig Hemmens
Department of Criminal Justice and Criminology, Washington State University, USA
Mary K Stohr
Department of Criminal Justice and Criminology, Washington State University, USA
Abstract
The Supreme Court of the United States recognized in its seminal case Miranda v Arizona, 384 US 436 (1966) that police
used overly coercive techniques during custodial interrogations to obtain confessions. Yet, post Miranda, police officers
still utilize legal coercive and deceptive techniques during custodial interrogations. Unfortunately, some of these
techniques have proven to be so coercive that they lead to false confessions and innocent people being convicted for
crimes they did not commit. Some states have taken measures to protect the accused during custodial interrogations and
require the police to record custodial interrogations under certain conditions. The policies and procedures that mandate
interrogation recording vary in scope and by state. This article sheds light on the different statutes and policies
implemented at the state level that regulate custodial interrogation recording.
Keywords
Police, interrogation, confession, recording, statute
Submitted 11 Jul 2017, accepted 28 Nov 2017
Introduction
away and label the person a criminal. Considering such
serious consequences, finding a person guilty or accepting
The burden of proof required to convict a defendant in crim-
a guilty plea is a serious matter and it is important that the
inal court is proof beyond a reasonable doubt. This is the
court gets it “right”. Despite the high burden of proof, the
highest level of proof used in the United States and means
large number of guilty pleas, and the constitutional safe-
the jury should vote to convict only if they have achieved
guards in place, court rulings are sometimes flawed.
“near certainty” of the defendant’s guilt (Jackson v Virginia,
With the advent of DNA testing we know for certain that
1979: 315). However, only a small portion of convictions are
courts do not always get it right. The number of
reached via trials in the United States. In approximately 95%
of criminal cases the defendant pleads guilty (Covey, 2008).
When a defendant pleads guilty, the judge must determine if
Corresponding author:
the plea is given knowingly, voluntarily, and is based on
Craig Hemmens, Department of Criminal Justice and Criminology,
ascertainable facts (Dressler and Michaels, 2006). When
P.O. Box 644872, Washington State University, Pullman, WA 99164, USA.
someone is convicted, the state may take his or her liberty
Email: craig.hemmens@wsu.edu
4
International Journal of Police Science & Management 20(1)
exonerations has risen dramatically since the first reported
reform and for police to legally be required to record all
DNA exoneration in 1989 (Garrett, 2011). As of November
custodial interrogations as a means of documenting police
2017, the Innocence Project has reported 351 exonerations
interrogation techniques and tactics. Some state courts and
through DNA testing (Innocence Project, n.d.a). According
legislatures have responded to the problem of false confes-
to Zalman et al. (2008), estimates of wrongful convictions
sions by mandating that the police record custodial inter-
range from 0.5% to as high as 15% of cases, with most
rogations under certain conditions. The statutes that require
studies suggesting a rate between 1% and 3%. This may
electronic recording during interrogation vary in scope. In
not sound like an alarming percentage; however, after con-
this article we review state statutes and court decisions,
sidering America’s incarceration addiction, the problem is
which serve to regulate police interrogations by requiring
clear. There were 1.132 million Americans convicted of a
some form of audio- and video-recording.
felony in state court in 2006 (Rosenmerkel et al., 2009).
Using the most conservative estimate of wrongful convic-
tions, 0.5%, this indicates that in 2006 there were an esti-
Literature review
mated 5,660 people who were wrongfully convicted. If we
There is an extensive body of literature examining police
consider prison rates, in 2013 there were 631,200 people
interrogation techniques and practices. In this section, we
admitted to state or federal prison (Carson, 2014). Again,
provide an overview of this research as it relates to the
using the conservative estimate of 0.5%, 3,156 people in
recording of suspects during police interrogation.
the United States were sent to prison for a crime they did
not commit. Although this represents a small portion of the
Policy considerations
people convicted and/or imprisoned in a year, it is clear
wrongful convictions pose a real challenge to the criminal
Technology use has been central to discussion surrounding
justice system.
investigative techniques involving audio- and video-
The reason why wrongful convictions happen are many,
recording, and innocent defendants who have been wrongly
but include: eyewitness misidentification, the use of infor-
convicted as a product of false confessions, manipulative
mants, perjury, overreliance on expert witnesses, poor for-
and harsh interview and interrogation strategies, eviden-
ensics or “junk” science, suggestive lineup techniques,
tiary errors, and training and recording-induced bias. Eva-
prosecutorial and judicial misconduct, ineffective assis-
luations have also been conducted regarding policy-making
tance of counsel, police misconduct, and false confessions
initiatives and reforms, and their impact on law enforce-
(Benforado, 2015; Garrett, 2011; Mays and Ruddell, 2015;
ment and courtroom practices (Kassin, 2014; Snyder et al.,
Zalman, 2009; Zalman et al., 2008). The issue of people
2009; Sullivan and Vail, 2009). Because of these assess-
falsely implicating themselves of a crime has been realized
ments, several recommendations have been offered that
since the early 1900s (Borchard, 1932). The U.S. Supreme
support the creation of legislative uniformity in electronic
Court recognized the issue surrounding false confessions in
recording practices. Although not an all-inclusive list, some
the seminal case of Miranda v Arizona (1966). In Miranda,
of the more prominent proposals include: mandatory elec-
the Court noted the existence of interrogation techniques in
tronic recording (e.g., audio, video, or both) for all
police manuals that were used to intimidate and coerce
offenses; recording parameter stipulations (e.g., custodial,
confessions. Acknowledging the inherently coercive nature
non-custodial, camera angle, video image size); limitations
of police interrogations, the Court ruled that to protect
on coercive interview and interrogation practices; the elim-
people suspected of committing a crime, before custodial
ination of “recap video recordings” (Lassiter and Lindberg,
interrogation can take place, the suspect must be informed
2010: 181); recording exemption allowances and non-
of his or her Miranda rights, including the right to remain
compliance consequences; and, the exclusion of recording
silent and the right to have a lawyer present during ques-
waivers (Gershel, 2010; Kassin, Appleby, and Torkildson,
tioning (Dressler and Michaels, 2006).
2010; Lassiter, 2010b; Linkins, 2007; Slobogin, 2003).
Despite the Miranda warning, police still use coercive
These recommendations for improvement notwithstanding,
interrogation techniques, and although contrary to common
supporters of electronic recording highlight a number of
sense, people do falsely implicate themselves in crimes. Of
advantages associated with video-recorded versus tradi-
the first 325 wrongful conviction cases overturned by the
tional non-electronic recording methods (e.g., transcrip-
Innocence Project, 88 cases (27%) involved a suspect
tions, notes, written statements). For example, Sullivan’s
making a false confession or incriminating statement
(2005) surveys involving municipalities of various sizes
(Innocence Project, 2016). Many justice system organiza-
revealed that electronic recordings resulted in permanent
tions practice these firmly entrenched interrogation meth-
records that were available for subsequent review. In addi-
ods that foster harmful results (McGrath, 2013).
tion, public confidence increased due to the transparency
Documentation of these injustices has led to calls for
associated with recorded interviews and interrogations, and
Bang et al.
5
audio–video footage was valuable for law enforcement
interrogation methods are at much higher risk of initiating
training purposes related to teaching appropriate interroga-
false confessions. Moreover, Kassin and colleagues (2005),
tion practices.
in their research regarding investigator accuracy in deter-
mining truthful from false confessions, observed that even
in the absence of intimidating, accusatory, and persuasive
Interrogation practices
statement tactics, the “interrogation [process] is psycholo-
Among the strongest arguments for videotaping during
gically coercive, and . . . innocent people sometimes con-
interviews and...
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