A Sure Way to Improve Criminal Justice: Record Confessions

In 2003, following an exposé of several questionable "confessions" obtained by Illinois police which resulted in murder convictions and in some cases death sentences for persons who were later exonerated, legislation was proposed in the Illinois legislature to require custodial interrogations in homicide investigations to be electronically recorded. Barack Obama, then a little-known member of the Illinois Senate, took the lead in negotiating with members of the law enforcement community who opposed electronic recording.

After lengthy give and take, Illinois enacted a law requiring that custodial interrogations of individuals suspected of murder must be recorded from beginning to end. This was the first law of its kind in this country. Now, ten years later, legislation and court rules provide for electronic recording of custodial interviews in Alaska, Arkansas, Connecticut, District of Columbia, Illinois, Indiana, Maine, Maryland, Minnesota, Missouri, Montana, Nebraska, New Jersey, New Mexico, North Carolina, Oregon, and Wisconsin. Other state legislatures and supreme courts are considering adopting similar laws. And exercising sound judgment, many police and sheriff departments throughout the nation now electronically record custodial interviews even when they are not legally required to do so.

The particular requirements vary somewhat from state to state. There are differences, for example, as to which suspected felonies trigger the recording requirement, what exigent circumstances can excuse non-recording, whether the recording must be audio or video, and whether a violation of the requirement mandates the presumed inadmissibility of the confession or merely a cautionary jury instruction. Although there may be one, uniform, ideal approach to these questions, there are also reasonable arguments to support the different approaches taken in various states.

After some hesitation and resistance, law enforcement's reception of these statewide recording mandates has become extremely positive. They recognize the many benefits of recording confessions: detectives are better able to concentrate on the interview rather than on note taking; there are no longer disputes about what was said and done during the interrogation; officers who might otherwise be tempted to play fast-and-loose with the rules are deterred from doing so; it is more difficult for interviewed suspects to bring trumped-up charges against police officers for alleged misconduct; and public confidence in the fairness of the criminal justice system is enhanced. All in all, this common sense reform has worked extraordinarily well.

Nonetheless, there are still some national, state and local law enforcement organizations that vehemently oppose statewide laws or court rules on electronic recording. Although they no longer dispute that recording is, in theory, a good idea, they nonetheless insist that each police and sheriff department in the nation should be free to adopt its own "best practices," which means that every local department could decide for itself whether or not to record, and if so when and how. Their reasons for opposing statewide rules are sketchy, at best. For example, they argue that "every locale is different" and that defense lawyers will use recordings to "get guilty criminals off." These are simply unwarranted objections.

As a practical matter, wholly localized rules would produce a hodgepodge of different requirements and procedures within a single state and a complete lack of statewide uniformity. The result would be dramatically unequal treatment for individuals who are brought in for questioning, for their rights would vary from one station house to the next based entirely on the fortuity of which department is undertaking the investigation. That is incompatible with elemental notions of fairness and sound law enforcement policy. And beyond that, such a melange of localized rules would produce no coherent mechanism to insure compliance. If the "rules" have no legally binding effect, then individual suspects would be left to the very discretion of investigating officers that a uniform, mandatory recording policy is meant to constrain.

In New York State, the Chief Judge of the New York Court of Appeals established a Task Force on Criminal Justice Reform made up of judges, prosecutors, police officials, defense lawyers, and academics. In recommending statewide legislation rather than optional "best practices" as determined by each local department, the Task Force determined that "electronic recording of interrogations was simply too critical to identifying false confessions and preventing wrongful convictions to recommend as a voluntary rather than mandatory reform."

This is a simple problem, with a simple solution. The use of electronic recordings has resulted in increased police professionalism, preclusion of testimonial disputes about what took place during closed-door interrogations, fewer motions to suppress confessions, more pleas of guilty, fewer false confessions, fewer wrongful prosecutions and unjust convictions, and substantial savings of time and money. The time has come for all law enforcement organizations to support mandatory state laws that require the use of electronic recording systems during custodial interviews. This is a simple, sensible and effective way to improve our nation's system of criminal justice.

This article was co-authored by Thomas Sullivan, a lawyer with Jenner & Block, Chicago (1954-77, 1981-present) and former United States Attorney for the Northern District of Illinois (1977-1981).