On Sunday, my op-ed article, “NYPD, Record Your Interrogations” appeared in the New York Daily News. Adapted from my book, Failed Evidence: Why Law Enforcement Resists Science (NYU Press, 2012), the article points out that when the NYPD announced the recent arrest in the cold-case murder of young Etan Patz, they mentioned that the confession of the alleged killer had been recorded. They neglected to say that this happened because the interrogation had taken place in New Jersey, and not in New York. The piece also points out that there are at least seven good reasons to record interrogations.
NYPD, record your interrogations
Catch the guilty, protect the innocent
By David Harris/ NEW YORK DAILY NEWS
Sunday, September 2, 2012, 4:23 AM
When police officials charged Pedro Hernandez with murder in the 1979 death of 6-year-old Etan Patz, they announced that they had a videotaped confession from Hernandez.
The recording will be vital, since, according to media reports, the confession appears to be almost the only evidence implicating Hernandez.
Good thing the interrogation took place in New Jersey — where police record confessions regularly. If it had happened in New York City, where the NYPD rarely records interrogations in homicides or any type of case, there’d probably be no recording. That needs to change.
We used to think that, absent mental illness, lack of sobriety or abuse by police, no one would confess to a serious crime he or she did not commit. We know now that people do confess falsely. Of the nearly 300 DNA-based exonerations now on record, fully 25% feature a false statement of guilt by the defendant.
The NYPD has seen its share of false confessions. For example, in the notorious 1989 Central Park jogger rape case, multiple defendants said they committed the brutal assault together. Those confessions sent five young men to jail for between six and 13 years each — before DNA evidence led to their convictions being vacated. The crime turned out to have been the work of another man entirely.
Such cases have begun to change police thinking. Hundreds of police departments in 18 states now record police interrogations. It is routine in New Jersey. But the NYPD has been slow to respond.
In March 2011, the NYPD began a limited pilot program: the recording of interrogations in two precincts, and only in felony assault cases.
Recently, the department expanded the program — but to only three additional precincts. And according to published reports, the NYPD has done little to track the effort thus far: how many interrogations have been recorded, dispositions of those cases or comparisons of conviction rates.
Why this reluctant response, when recording interrogations is proving to be a crucial tool not only to protect the innocent but to convict the guilty?
Commissioner Ray Kelly has voiced concerns over the logistics of recording interrogations in such a large police department. And the Detectives’ Endowment Association, a key NYPD union, has voiced fears that when juries see the sometimes crafty tactics that police employ to get confessions, they might vote to acquit. In addition, the DEA fears that criminals will use these recordings as training videos.
Kelly makes a fair point; recording interrogations will be a considerable endeavor that will require equipment, training and logistical coordination.
But surely a police department that has risen to myriad post-9/11 security challenges, and that itself uses electronic recording at events like public demonstrations, can handle it.
As for the idea that jurors will punish the police for tough but legal tactics, or that criminals will study the recordings like NFL players studying game film, there’s no evidence these things have happened where recording is now required.
Thanks to the fact that many jurisdictions have used recordings for some time, we have evidence about how well it works. The key to breaking through the NYPD’s resistance is to get leadership to understand that departments that record reap substantial benefits.
The most comprehensive study of the recording of police interrogations, by Thomas Sullivan, Andrew Vail and Howard Anderson III, said that officers in departments that record “enthusiastically favored the practice.”
Among the pluses:
n Recording protected officers from claims of misconduct, abuse or failing to give Miranda warnings.
n Some defendants confessed more easily when recorded.
n Recording results in fewer motions to suppress, because questions about Miranda warnings or the voluntariness of a confession become incontestable.
n Recording of interrogations increases the number of guilty pleas.
n The number of guilty verdicts increases, because the recordings eliminate avenues for defense attacks.
n Recordings help to increase public trust in the police because they show that police conduct themselves properly.
n Recordings deter police abuse that sometimes takes place in interrogation rooms.
This is what is at stake: a new and better practice that will do much to help our police lock up bad guys. The focus should be not on what police might lose (which is largely an illusion); rather, it should be on what they can gain. Failing that, it’s time for New York’s legislature to step in.
Recording interrogations benefits everyone, and the NYPD needs to move to where the research points us.