What's The Real Cost of Not Recording Confessions?
According to The Innocence Project, in about 25% of DNA exonerated cases, Defendants made incriminating statements, confessed to the crime, or pled guilty to the charges against them. [FN 1]. So, what would prompt an innocent individual to confess to a crime in which scientific evidence proves he or she did not commit, and how do we protect the truly innocent that are led down a pathway to a false confession?
Currently, in the State of Florida, there is no constitutional or statutory requirement that compels law enforcement agencies to record custodial interrogations. One might wonder why that is, especially in light of the wide availability of recording devices in today’s technological era.
The truth be told, criminal practitioners understand the “skills, methods, and tactics” employed by law enforcement during interrogations are in many situations nothing more than coercive and in many cases blatantly deceptive tactics employed for one simple purpose – to lead a suspect down the road to a confession. Many times law enforcement officials will put a spin on a suspects words or ask the same question multiple times in different ways to obtain a particular answer. Other times law enforcement will employ tactics to convince a suspect they have evidence of guilt, or witnesses who are ready to come forward and testify against the suspect – even when they have neither. However, suspects who are subject to these tactics are placed in a compromised position, and told that “if he or she cooperates, the officer can help with a lesser charge or sentence.” These tactics often lead to false confessions.
Does this seem fair to the typical person? Of course not! Unfortunately, however, the rules of evidence and the law regarding the admissibility of confessions, even in light of these tactics, is extremely favorable to law enforcement. For that reason, seeking to suppress a confession based on improper tactics by law enforcement is extremely difficult if not impossible.
A proposed law making its way through the State legislature is Florida’s first attempt to allow others – including a jury – to review a suspects alleged confession to determine if it was false or improperly obtained. House Bill 1095 is a proposed law that would require law enforcement to electronically record statements of suspects. While it is a good first attempt at such a requirement, there are three major weaknesses with the proposed bill.
First, the requirement only applies to “covered custodial interrogations” of “covered offenses.” While the list of “covered offenses” is not exhaustive of Florida criminal offenses, it does cover the more serious offenses contained in the Florida criminal code. There may be a valid argument against requiring recorded interrogations for lesser crimes, but to someone charged with a lesser crime, such a requirement may be important to that person.
Second, the proposed legislation makes an exception to the recording requirement if “the questioning takes place under circumstances in which an electronic recording is impracticable or unless law enforcement has other good cause.” With such an exception written into the law, the possibility of litigation as to what is “impracticable” or “other good cause” is endless. The law should set a requirement, and any deviation from that requirement should be resolved against the government, by suppressing the alleged statements.
Finally, the proposed legislation does attempt to establish a remedy for a suspect whose statements are not recorded. Subsection (6) provides that the failure to record statements “shall be a factor for consideration by the trial court in determining the admissibility of any statement” and by the “jury in determining whether the statement was made.” The latter is already a means by which defense attorneys can attempt to discredit an investigating officer related to statements allegedly made by a suspect and not recorded. So the only additional safeguard provided by the proposed legislation is allowing a trial court to determine the admissibility of the statements, and if the court finds a recording was “impracticable” or “good cause” existed not to record, the statement can be used against the suspect at trial with no remedy.
With the wide array of electronic recording devices available, there is no good reason for law enforcement not to record all custodial interrogations. While the proposed legislation is a solid first attempt to impose such a requirement, it should go further. The legislation should set forth a bright line rule requiring custodial interrogations to be recorded, and if not, they will not be admitted.
So, what is the real cost of not recording confessions? The real costs are the false confessions obtained by law enforcement and the sentences imposed upon those individuals who are innocent of the crimes to which they have confessed.