Another Call for Recording Interrogations: South Carolina

In another sign that resistance to better, science-based practices will eventually have to yield, a news report indicates that a member of the South Carolina has  introduced a bill that would require police to record interrogations of suspects.

The bill, proposed by Rep. Todd Rutherford of Columbia, “would require judges to instruct jurors that they could ‘draw an adverse inference’ if a law enforcement officer failed to record the questioning of a suspect unless there was an equipment failure.”  That required instruction would effectively require that the police record interrogations, because jurors would hear from the court that the interrogation might be suspicious.

Even if the bill does not pass, the significance of the proposal is hard to miss.  An increasing number of states and jurisdictions require recording of interrogations under various circumstances (see the Innocence Project’s map here), and the research shows that the recording requirement does not harm the investigation process.  In fact, recording turns out to be a great help to the police overall.  The research of Thomas Sullivan on the practical effects of recording has been particularly insightful and helpful on this issue, and academics such as Richard Leo, Saul Kassin, and Richard Ofshe have made tremendous contributions in the area of false confessions and why recording can help.

More to the point, South Carolina would not be viewed by anyone as a jurisdiction that has been particularly favorable to defendants on criminal justice issues.  The fact that the legislature in South Carolina now has a proposal to consider on recording interrogations means that, little by little, we are nearing a tipping point, which will bring us closer to what the scientific research shows us.

 

Recording Confessions: Prosecutor Says It’s a Good Idea, But Don’t Tell Us We Have To

There is more talk than ever about how to safegaurd the criminal justice system against false confessions.  One reform that can help avoid these catastrophic errors is for police to record in-custody confessions.  With a recording of the entire interrogation (not just the part where the subject admits his or her involvement), the worst abuses are curbed, the jury or judge can see and hear exactly what happened, and there are many fewer legal issues about whether Miranda warnings were properly given.  The results, according to the police departments that have been required under state law to do this for years (most notably, Minnesota since 1994 and Alaska even earlier) have been almost uniformly positive.

Thus I was encouraged by a news item I saw from Pennsylvania, my home state, in which a county prosecutor seemed to take a forward-looking stance: she was launching a pilot program in which county detectives will record interrogations of murder suspects:

“Police and prosecutors need to be on the front lines of making sure we are doing things the right way … It’s up to us to do our jobs with integrity and maintain integrity in our investigations,” Montgomery County District Attorney Risa Vetri Ferman said…[S]he said she was drawn to the issue after serving as a member of the Joint State Government Commission’s advisory committee on wrongful convictions. The committee issued a report in the fall of 2011.

Applause for Ms. Fermin…except for one thing.  She is against any requirement that recording  be mandatory.  Rather, police and prosecutors should get to decide for themselves whether they want to do this.

“When you’re working in law enforcement and you’re working on the street … you learn there are any number of ways to do” things, Ms. Ferman said. “Why would you try to hamstring police? The goal should be: do it right, do it properly, do it with integrity and do it fairly.”

I can’t agree.  First, police and prosecutors in Pennsylvania have the power, right now, to decide to make recording of interrogations standard practice.  Despite the fact that it is universally applauded by law enforcement in every jurisdiction in which it is required — see the many comments here and in Failed Evidence from police and prosecutors experienced with recording — most agencies still don’t do it.  Second, recording really does make for better law enforcement and better outcomes and fewer false confessions. So there comes a time when those resisting should not get to continue to resist, just because they think they know better.

If a doctor wanted to keep using leeches because he thought he knew better, would we let that continue?

 

 

Alleged Killer of Boy in NYC Cold Case Will Argue His Confession Was False

In a headline-grabbing New York murder case, we will soon get to see whether recording the interrogations of suspects will help cases stand up in court and persuade juries.

In my September 2 op-ed piece in the New York Daily News, I discussed the case against the killer of Etan Patz, a young boy murdered over three decades ago in New York City.   The investigation had been dormant until this past spring, when the NYPD announced the arrest of Pedro Hernandez, a New Jersey resident.  The NYPD said that Hernandez had confessed, and — because the interrogation took place in New Jersey and not New York — the NYPD had a recording of the confession.  This recording would likely not have been made in New York, because — at least at that time — the NYPD continued to refuse to record interrogations, as it had for many years.  (The rule changed in September, when NYPD Commissioner Ray Kelly announced that the NYPD would begin to implement a plan to record interrogations in all murder and sexual assault cases.

At the end of last week, Hernandez appeared in court for a hearing.  According to multiple media accounts, Hernandez will plead not guilty.  The reason: according to his lawyer, Hernandez had confessed falsely because he is mentally ill, and there was no other evidence that implicated him aside from the conviction.

The case will thus make for an interesting test of the utility of recording.  Back in May, when Commissioner Kelly announced Hernandez’s arrest, he made a special point of saying that the NYPD had the interrogation recorded.  For those who had long advocated recording as fundamental to better interrogation practice, the reaction was at once “great!” and “so why are you still resisting the idea of doing this regularly, if it was a good enough idea to do in this important case?”

Whether the defense team will be able to prove that Hernandez was mentally ill at the time of the interrogation, and if he was to prove also that his illness made a difference in the interrogation, remains to be seen.  Even persons with long histories of mental illness aren’t necessarily incapacitated or hurt by these illnesses in every circumstance in which they find themselves.   My guess, without having seen the recording, is that the recording will make it easier for the prosecution to convict.  And that, I hope, will increase the momentum behind making recording of interrogations standard best practice in law enforcement.

Where is Minnesota on Failed Evidence? Part 2 — Today’s Star Tribune

In connection with my talk on Failed Evidence at U. Minnesota Law School Thursday, Nov. 8, take a look at my Commentary piece in today’s Minneapolis Star Tribune, “In Some Areas, Law Enforcement Still Resists Science.”  Here’s a sample:

Everywhere you look, law enforcement and science seem to have formed a partnership. Look at the headlines on any given day, and there’s something like “DNA convicts killer in 1992 cold case.” Turn on the television, and there are the police in “CSI” and its innumerable clones solving cases with high-tech gadgets and test tubes and computers. The message is clear: The bad guys don’t stand a chance against the police officer and the scientists working together.

There is some truth to this: DNA has become an identification tool of unequaled power. But look beyond DNA, and you’ll see something different: When the science concerns eyewitness identification, suspect interrogations, or more traditional, non-DNA forensic testing, law enforcement doesn’t embrace science. Most police agencies and prosecutor’s offices in the United States actively resist the scientific findings on these common types of police investigation.

Where is Minnesota on Failed Evidence? Part I — Recording Interrogations

I’ll be speaking about my book Failed Evidence: Why Law Enforcement Resists Science (2012) this Thursday, Nov. 8 at the University of Minnesota Law School at 4:30 pm in Mondale Hall.  My talk will be followed by a panel that includes Ramsay County Attorney John Choi and John Harrington, former chief of police in St. Paul and currently the police chief of the Metro Transit Police Department.  The event is free and open to the public.  The Law School is located at 229 19th Avenue South, Minneapolis, MN 55455.

Because I’ll be in the Twin Cities speaking about the book, let’s ask: how does Minnesota stand on the issues covered in Failed Evidence: faulty eyewitness identifications, false confessions, and basic types of forensic evidence?

A good place to start is with interrogations and false confessions.  Minnesota was one of the first two states to require its police officers to record interrogations. Here’s the story.

In 1994, the Minnesota Supreme Court decided the case of State v. Scales.  The evidence of the defendant’s guilt, including statements he made to the police, was overwhelming, and the Supreme Court did not overturn his conviction.  But the justices used the case to require  recording of interrogations in all future cases.

…[W]e hold that all custodial interrogation including any information about rights, any waiver of those rights, and all questioning shall be electronically recorded where feasible and must be recorded when questioning occurs at a place of detention.  If law enforcement officers fail to comply with this recording requirement, any statements the suspect makes in response to the interrogation may be suppressed at trial.

Minnesota thus became the first state with a large population to require recording.

How did this mandate go over with law enforcement?  By all reports, not so good at first; predictably, there was resistance and widespread prediction of a public safety crisis.  But a funny thing happened on the way to this apocalypse: the police became big believers in recording interrogations when they figured out that doing so helped them get convictions and did away with bogus claims of constitutional violations by defendants.  One quote, attributed to Neil Nelson, a former St. Paul police commander, shows up again and again: Nelson called recording of interrogations “the best tool ever shoved down our throats.”

If you are or were part of law enforcement in Minnesota, what are your thoughts about recording? Your experience gives your comments great value.

 

Richard Lapointe, Convicted Based on a False Confession, Gets a New Trial

Readers of the Failed Evidence blog will recall the story of Richard Lapointe, the Connecticut man who was convicted for the murder of his wife’s grandmother.  Lapointe, who suffers from mental and physical disabilities, has been serving a sentence of life in prison without the possibility of parole.  He was arrested after a nine and one-half hour interrogation.  According to an op-ed column in The Middletown Press:

The interrogation wasn’t recorded. Detectives’ notes quote him as saying: “If the evidence shows that I was there, and that I killed her, then I killed her, but I don’t remember being there.” Many of the statements he made, about how Martin was assaulted and murdered, were contradicted by the facts in the case.

If ever a case called out for recording, it was this one.  And it was not done.

Now, an appellate court in Connecticut has granted a new trial, based on prosecutorial failure to disclose evidence to the defense.  This will give Lapointe a chance to present evidence uncovered since the trial, including DNA that does not support Lapointe’s conviction.

Stay tuned.

Failed Evidence on WYPR Public Radio’s “Midday” Program

I was a guest on WYPR Public Radio’s “Midday” program today, discussing Failed Evidence.  Today was the monthly “Midday on Science” show, and host Dan Rodicks and regular science contributor John Monahan asked great questions on everything from DNA to more traditional forensic sciences to eyewitness identification and false confessions.  Listeners asked terrific questions too.

You can hear the whole show by clicking here and clicking on the audio button.

A False Confession Was the Only Evidence: the 300th DNA Exoneration

My last post asked why anyone would ever confess to a crime that they did not commit, and it explained how false confessions happen.  I used the example of the case of Richard Lapointe, a man who is still incarcerated but who will now receive a new trial. (The NPR story on Lapointe is here.)

In late September, Damon Thibodeaux was released for the Louisiana State Penitentiary in Angola, where he had spent the past fifteen years, most of it on death row, for a rape and murder he confessed to — but did not commit.  (In fact, the DNA work revealed that no rape actually occurred at all.)  It was his confession that doomed him — in fact, it was virtually the only evidence that connected him with the crime.  When he was released, he became the 300th person released after conviction in the U.S. through DNA work — the 18th from death row.  Thibodeaux’s case is one of the approximately 25 percent of the exonerations that have contained a false confession or false statement.

It’s worth noting that Thibodeaux’s case shares many of the characteristics that the cases of so many others do:

1) prolonged interrogations — in Thibodeaux’s case, nine hours;

2) a defendant who was threatened with the death penalty if he did not confess;

3) details of the confession that do not match the physical details of the case (such as in the notorious Norfolk Four case, which you can read about in The Wrong Guys: Murder, Confessions, and the Norfolk Four, by Tom Wells and Richard Leo); and

4) no recording of the interrogation, in which Thibodeaux says detectives fed him details of the crime so that he could parrot them back, and put enormous pressure on him (including the threat of death by lethal injection).

That Thibodeaux is now alive and free might cause some to re-think the wisdom of the death penalty.  But whether it does or not, it should cause every law enforcement agency, and every legislative body, to begin video recording interrogations from beginning to end.  A recording might have caused prosecutors to question just how good a piece of evidence this confession was.  Or it may have raised questions in the minds of some of the jurors.

Why Would Anyone Confess to Something They Didn’t Do? Some Answers

Like most people, for years I believed no person would ever confess to a serious crime that the person did not commit, except if there was abuse in the interrogation room.  It just seemed implausible: admitting to a crime meant you were subjecting yourself to punishment — maybe decades in prison or even death.  There’s no way you’d do that unless it was true (or you were forced into it).

Of course, with DNA on the scene for more than 20 years, we know better: people do confess to crimes they did not commit, usually because of the huge pressures brought to bear on them in the interrogation room.  According to the Innocence Project, about a quarter of the post-conviction DNA-based exonerations on record featured a false confession, or a false statement of guilt of some kind.

Here’s a story that you can listen to or read that makes a good example of how and why this can happen.  In this case, a man named Richard Lapointe confessed falsely to a rape and murder and has served 23 years in prison.  A court has now ruled that he must receive a new trial.  This story puts many of  the major causes of false confessions on display:

* The interrogation was not recorded.  Recording of interrogations can reduce false confessions and supply an indisputable record of what was said in the interrogation room.

* The police lied to Lapointe about falsified scientific evidence.  Police are allowed to lie in interrogations, but lies about scientific and forensic testing make prison seem inescapable, forcing the suspect to tell the police what they want to hear in order to stop the pressure.

* The interrogation continued for about nine hours, far longer than average.  This increases the chances of a false confession.

* Lapointe was brain damaged, and the police knew it.  Mental disabilities make false confessions more likely.

Lapointe’s case is an object lesson in what can go wrong, and what we should be doing to make sure this doesn’t happen.  We should record all interrogations, front to back;  prohibit lying to suspects about test results; and limit interrogation times to two hours, with extensions (perhaps to four hours) only with a supervisor’s permission.  These simple steps can keep us from hearing more stories like Lapointe’s in the future.

Are Police Concerns With NYPD Recording Interrogations Valid?

At the roll out event for Failed Evidence at John Jay College in New York on Thursday, Sept. 20, I spoke about the book, and a star-studded faculty panel, moderated by former U.S. Attorney Zachary Carter, gave the audience astute and insightful comments.  The event took place just after NYPD Commissioner Ray Kelly announced an expansion of the Department’s very small pilot program of recording interrogations, so police will record all interrogations in cases of murder or sexual offenses, in every precinct.  This change in NYPD policy came up in my presentation, and in the panel’s comments.  I favor recording of interrogations and said so, but panel member Eugene O’Donnell, a former NYPD officer who now teaches at John Jay, voiced reservations. ( The recording of the event  is not yet available, so I am working from memory;  if I get this wrong, I hope that Professor O’Donnell or someone else who was there will correct me.)  Professor O’Donnell’s main concern with recording seemed to be that detectives performing interrogations would curtail their questioning, or even not attempt much questioning, if they knew they were being recorded.  I heard this same concern raised the next day, in an email I got from another attendee.  This gentleman, who like Professor O’Donnell is also a former NYPD officer, said that he had raised the issue of recording interrogations with a friend who is an active NYPD detective, and that the friend said the same thing Professor O’Donnell had:  that he would do fewer interviews if he was going to be recorded.

I disagree; the experience of police departments that have recorded for years (beginning with Alaska in 1985 and Minnesota in 1984) doesn’t support this fear.  “The Case for Recording Police Interrogations,”  published in 2008 by Thomas P. Sullivan and colleagues, carefully works through all of the objections police have raised to recording.  According to Sullivan, none of them hold water, but more interestingly, the idea that detectives faced with a recording requirement will somehow hold back or stop interrogating suspects does not even come up when talking to police who record.  On the contrary, the article contains a long list of the benefits that police get from recording interrogations: a complete record; protection against bogus charges of misconduct or illegalities like failure to administer Miranda warnings; fewer motions to suppress and more guilty pleas, to name just a few.  I have had the privilege of meeting a lot of police officers and detectives, and it is my strong impression that a recording requirement will not deter them from doing their jobs.