Fault Lines
22 May 2017

False Confessions? There’s No Excuse For Unrecorded Interrogations In 2016

Mar. 14, 2016 (Mimesis Law) — Next time you are walking down the street in your local business district, take a look around and count how many cameras are watching your every move. In urban areas, the entire city is a patchwork of surveillance.  From the corner in front of the corner store to the bagel shop down the street, you are being watched.  Every time you get money out of the ATM or walk into a Target to peruse their enticing dollar bin, you are on camera.  But there is still one place in America where you can avoid being captured by any recording device – the interrogation room of a police precinct.

If you are one of the willfully ignorant whose thought process on false confessions starts and stops with, “well I would never confess to a crime I didn’t commit,” please press the pause button. Go educate yourself and then come back.  There is important work to do and we can no longer argue about objective fact.

The Innocence Project would be a great place to start.

False confessions are a particularly troubling aspect of criminal justice. “Criminal (In)Justice” researchers say that it’s “impossible” to know how often defendants confess to crimes they never committed, but that there is a “growing awareness” that false confessions occur across “a wide variety of cases.”

The Innocence Project analyzed hundreds of cases around the nation stretching back to 1989, and found false confessions to be a primary cause of wrongful convictions. Overall, about 31 percent of wrongful conviction cases included a false confession. For homicides, that number balloons to 63 percent.

For more anecdotal evidence, look at the Central Park Five case. For a step by step process of how false confessions happen, watch the hours or police interrogating Brendan Dassey on Netflix’s Making A Murderer series if you happen to be one of the three people who have not yet seen it.

False confessions are very real, this we know. The confounding question we are left with is what do we do about them?  Or perhaps a more direct question, how do we stop false confessions from happening?

As with many of the diseases plaguing our criminal justice system, from bail to mass incarceration to prosecutorial misconduct, there is no silver bullet fix. Part of what bogs us down in our attempt to reform this broken system is that far too many people see merely advocating the eradication of a recognized problem as tantamount to a valid solution.  But when the power goes out in your neighborhood, everyone knows what the problem is.  The lights don’t come back on without trained professionals from the power company.

So, in searching for a way to take a significant chunk out of the issue of false confessions, how about this? 24/7 surveillance in every police interrogation room in America.  If the bodega down the street has it, why not police precinct?  Crime certainly happens everywhere, but no rooms in America seal the fate of more people than police interrogation rooms.  Is it too much to ask that judges, juries and criminal defense attorneys get a chance to see how this evidentiary sausage is made?

The lack of precinct recording devices is not due to budgetary constraints. With a $5 billion annual operating budget, the NYPD could put cameras in every interrogation room with the leftover change found in between the break room couch cushions. Most police departments could easily peel off enough from their civil forfeiture slush fund to install a state-of-art A/V system.

But instead, nothing. While police departments spend millions upon millions of dollars on body camera pilot programs to attempt to bring some semblance of truth and accountability to the public actions of police officers, once the door to that interrogation room closes, everything goes dark.  Except for the times when the police decide they want to record, and then they have no problem getting a camera in there.  But this only happens when they want, either when a suspect is guilty and willing to confess or after they have tuned the suspect up, either physically or psychologically, and he is ready to perform.

Out of the well over a thousand confessions I have dealt with, either in my own cases or peripherally with other attorneys, here in New York state court, the number that are recorded on video or audio would make up the scantest crumbs of a pie chart. The vast majority of confessions here in New York City involve the officer merely telling the prosecutors, judges and defense attorneys what the suspect purportedly said.  Sometimes, the confession is written down, and sometimes, that confession is even written in the defendant’s own handwriting.  Audio or video, though, is incredibly rare.

None of this is incompatible with the fact that many confessions are valid. But getting it right some, or even most, of the time is not good enough, especially with stakes so high.  So, in this day and age of billion dollar budgets and technological availability, why are the police failing to record the one piece of evidence that they and prosecutors always say is the linchpin of the case.

The answer is simple. Because they don’t want to.

In a criminal case, context is everything. If the actual context is stripped away from a case (as it so often is), then the ones who stripped it out (the police) are often the ones who get to recreate the context.  How would it impact a jury if, instead of merely hearing about the “I did it” confession that was oh-so-voluntarily uttered by the defendant, the jury got to see the seven hours prior to that statement where the defendant was told time and time again that if he only confessed, he would get to go home?

For many precincts, it would be as easy as hooking new cameras into the current systems that are currently recording the areas of the precinct that truly need surveillance – public waiting areas and prisoner holding cells. But the IT logistics are also not the obstacle.  The friction comes from a police culture that presents as honest, but likes to have the option of using dishonest means to justify certain ends.

But unlike the complex issues swirling around things like body cameras and use of force, there is no legitimate “con” to give pause for constant interrogation room surveillance. If the confessions that come out of those rooms are vital to determining whether a person is guilty (they are), then why should we continue to allow all logical objection to be erased with a shiny badge and a “trust me”?  Correcting this gaping hole in our justice system is imperative as we finally start to legitimately grapple with the tarnished trustworthiness of our police.

Luckily, this enormously important problem has an enormously easy solution. Lawmakers across the country have the power and authority to make the police put 24/7 audio and video surveillance in every interrogation room in every precinct.  Make it the law.  Granted, constant surveillance in interrogation rooms will not erase false confessions from existence.  But it will easily cure part of the problem.

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