The case for recording interrogations

Posted: August 27, 2008 2:25 pm

In a forthcoming article in the California Law Review entitled “Mourning Miranda,” professor Charles D. Weisselberg argues that the safeguards guaranteed by the U.S. Supreme Court’s landmark Miranda v. Arizona decision (which requires law enforcement officers to read a suspect his or her rights before detaining them) have become ineffective and even detrimental to the criminal justice system. Law enforcement officers, Weisselberg writes, have learned how to skirt Miranda and interrogate a suspect without a lawyer present.

Blogger Grits for Breakfast wrote yesterday about Weisselberg’s findings, saying that recording interrogations would be a step toward more just police procedures. About 25% of the 220 wrongful convictions overturned by DNA testing involved a false confession or admission, and very few of these were recorded.

From the Tuscaloosa news (via Grits):

The F.B.I., in documents defending its policy [not to require taped interrogations], argued that taping was not always possible, particularly when agents were on the road, and that it was not always appropriate. Psychological tricks like misleading or lying to a suspect in questioning or pretending to show the suspect sympathy might also offend a jury, the agency said.

“Perfectly lawful and acceptable interviewing techniques do not always come across in recorded fashion to lay persons as proper means of obtaining information from defendants,” said one of the once-secret internal Justice Department communications made public as part of the investigation into the dismissals of the United States attorneys.

That's not an acceptable reason to oppose taped interrogations, particularly in circumstances where a suspect has been isolated and read their Miranda rights. Just like cockroaches scatter when you turn on a light, my guess is that recording and thus exposing these tactics to scrutiny by judges and juries would, in the long run, result in their defenestration. At a minimum, recording would allow more comprehensive post-investigative analysis by researchers to identify unproductive approaches and best practices. Until then, for the foreseeable future, coercive tactics will remain a routine part of American police interrogation.