by Alexei Garick
Since recently relocating from Massachusetts to Seattle I have found learning the laws and procedures of a different jurisdiction fascinating. I’ve come across some practices used in King County, and elsewhere in the state, that I can’t believe aren’t followed back in my former home. However, one thing I will miss is watching and listening to the recorded interviews of my clients with police investigators. It’s not that I enjoyed the fact that my client agreed to speak with law enforcement, it was just the fact that, should he have made that decision, I can see and hear firsthand what was said and done during that important interview.
Since 2004, when Massachusetts’ highest court came out with the ruling in Commonwealth v. DiGiambattista, police departments have video recorded interrogations of suspects taken into custody. While the DiGiambattista ruling did not require the police to record interrogations, it did create the requirement that, should the government use a defendant’s statements to police against him at trial, and they did not either video record, or at least audio record, the entire interview, a jury instruction must be given instructing the jury to look very cautiously at any statements purportedly attributed to the defendant.
Given the prospect of that jury instruction, police departments now record interrogations as a matter of routine. While the court limited its ruling to custodial interrogations, the preference for recorded interviews has grown so much that the vast majority of interviews in police stations, even when the suspect is not in custody, are video recorded and those occurring elsewhere are audio recorded.
The importance of recording recently came up in a case I’ve been working on. Our client—let’s call him Tyler—had been accused of attempting Indecent Liberties while at work.
Before retaining the Marshall Defense Firm, Tyler agreed to speak with a King County Sheriff’s detective. They met, as the detective suggested, at a coffee shop in Shoreline. The detective told Tyler that she could record the conversation but that it was too loud to get a good recording. She didn’t suggest they move to a quieter spot. Tyler followed her lead and said she didn’t need to record.
In her report the detective paraphrased what Tyler said during the interview. As one can imagine, what the detective reported Tyler said does not match what Tyler says he told her.
If Tyler’s memory is right, does it mean he was talking to a crooked cop? Probably not. His case could illustrate problems that routinely occur when two people (especially strangers) talk with each other.
Oral communication begins when one person says something to another. That person may receive that message through hearing what the other person has said. But that is not the end. The communication is only complete, and can only be labeled effective, if the person, in addition to receiving the message, understands the message. Misunderstandings can happen in many ways. We all remember times we’ve been misunderstood or have misunderstood someone else.
When this miscommunication occurs in police interrogations and interviews, it is usually the police officer’s version that gets believed in court.
Recorded interviews make plain what was said. Not only are the suspect’s words preserved verbatim; the way he said them is preserved, too. Voice inflection and body language do a lot to convey the meaning of a message.
The benefits of recording interviews are many. It helps determine:
- whether the suspect was given appropriate explanation of his Miranda rights
- whether police interrogators used proper procedures and tactics
- whether the suspect spoke freely and voluntarily
- what was said and done by the participants in the interview
- how long the interview went on
Most important, recording interrogations reduces the risk of false confessions and conviction of innocent persons—nightmares for them, and a public safety failure because the true perpetrators remain free.
At first police and prosecutors in Massachusetts argued that the recordings would hamper the prosecution of crime and be too costly. But now they have become strong supporters of recording. They appreciate that the recordings eliminate accusations that the police are lying about what the suspect said or how the interview was conducted. Some police departments even use the recorded interviews of defendants who were successful in having their statements suppressed as training material on what interrogators should not do.
Washington State courts or the legislature should require that interviews be recorded. Public money should be provided for police to get the necessary equipment. Routine recording would protect citizens whose constitutional rights might not be respected otherwise. It also would build public confidence that police officers conduct themselves properly during custodial interviews.
The furor over recent police shootings of African-Americans shows, among other things, that video recording now goes on routinely throughout American life. It is silly that it not be routine in one of the places—police interrogation—where it could have the most value.