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THE NEW YORK COUNTY LAWYERS’ ASSOCIATION AND AMERICAN BAR ASSOCIATION SECTION OF CRIMINAL JUSTICE REPORT TO THE HOUSE OF DELEGATESRECOMMENDATIONRESOLVED, That the American Bar Association urges all law enforcement agencies to videotape the entirety of custodial interrogations of crime suspects at police precincts, courthouses, detention centers, or other places where suspects are held for questioning, or, where videotaping is impractical, to audiotape the entirety of such custodial interrogations. 1 2 3 4 5 6 7 8 9 10 11
FURTHER RESOLVED, That
the American Bar Association urges legislatures and/or courts to enact laws or rules of procedure requiring videotaping of the entirety of custodial interrogations of crime suspects at police precincts, courthouses, detention centers, or other places where suspects are held for questioning, or, where videotaping is impractical, to require the audiotaping of such custodial interrogations, to provide necessary funding, and to provide appropriate remedies for non-compliance. --------------------------------------------------------------------------------
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1 REPORTINTRODUCTION False confessions by suspects appear to be among the major causes of wrongful convictions within the criminal justice system. To reduce the number of convictions of innocent persons and ensure the integrity of the criminal justice process it is imperative to reduce the number of false confessions. Research indicates that about one-fourth of cases of conviction of innocent defendants have included, among other things, false confessions.1Such false confessions include a suspect’s incorrect statements of involvement in any or all facets of the crime(s) being investigated. These incorrect statements by a suspect can mislead police, prosecutors, defense attorneys, judges and juries into focusing the case on the suspect, too often resulting in an erroneous conviction. An additional negative consequence is that the focus is away from the true perpetrator of the crime, too often resulting in that perpetrator’s freedom to continue criminal activity. Recent reports of innocent defendants convicted largely because of false confession have been followed by individuals and groups calling for electronically recording interrogations. The practice of electronically recording complete custodial interrogations has been on the increase both in this country and throughout the world. Statutes requiring the recording of interrogations in their entirety have been introduced in a number of legislatures and enacted in the District of Columbia and Illinois. Police departments are increasingly adopting electronic recording of complete 1C. Ronald Huff, Wrongful Conviction: Causes and Public Policy Issues, 18 (1) (ABA) CRIMINAL JUSTICE 15 (Spring 2003). BARRY SCHECK, PETER NEUFELD & JAMES DWYER, ACTUAL INNOCENCE: FIVE DAYS TO EXECUTION AND OTHER DISPATCHES FORM THE WRONGLY CONVICTED (2000).
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2 interrogations, and those that have done so have found the practice beneficial to law enforcement. We believe it is time the practice of videotaping complete interrogations is mandated in all state andfederal jurisdictions. 2False ConfessionsThe overarching problem at in-court determinations of the falseness of the suspect’s statements is the difficulty in recreating who said what, who did what, and what body language and facial expressions accompanied these statements and actions. While videotaping or audiotaping the interrogation does not do much to alleviate the problems at other stages of the criminal justice process, it does seem to be the best solution to the subsequent in-court determinations, as recognized by even the most conservative of researchers and analysts: “... there seems to be virtual unanimity among those who have reviewed the problemthat videotaping interrogations is an effective solution to the false confession problem.”3However unlikely it may appear that an innocent person who has not been physically coerced would confess to a crime, numerous false confessions have been do***ented. Various cases are collected and described in a 1997 law review commentary, False Confessions and Fundamental Fairness: The Need for Electronic Recording of Custodial Interrogations, 6 B.U. Pub. Int. L.J. 719 (1997). A 1998 article by Ofshe and Leo, The Consequences of False Confessions: Deprivations of Liberty and Miscarriages of Justice in The Age of Psychological Interrogation, 88 Journal of Criminal Law and Criminology 429 (1998), identified 34 confessions proven false through other evidence, and 18 confessions which appear false because of the lack of corroboration and the 2“Videotaping” shall encompass any electronic method of preserving an audio-visual record of the interrogation. 3Paul G. Cassell, Balanced Approaches to the False Confession Problem: A Brief Comment on Ofshe, Leo, and Alschuler, 74 DENVER UNIVERSITY LAW REVIEW 1123, 1132 (1997).
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