One way to prevent wrongful convictions

By Peter Vaira

A quarter of the criminal convictions that have been overturned by DNA evidence were based on false confessions or pleas, according to a study by the Innocence Project. But most laymen find it hard to believe someone would confess to a crime he didn't commit. Studies show jurors are usually persuaded by confessions even if they're repudiated or contradicted by other evidence at trial.

The simple practice of recording police interrogations could assure that fewer innocent people are convicted based on false confessions in Pennsylvania. The practice has been upheld in court and is already standard in hundreds of police departments, including Chicago's, Denver's, and Washington's.

Video or audio recordings of interrogations allow any allegations of improper police conduct to be easily verified or refuted. And they spare courts and juries the arduous task of trying to resolve conflicting testimony from police and defendants as to what occurred.

A recording provides a clear record of what questions were asked and what answers were provided. In the case of a video recording, the suspect's physical condition and demeanor during questioning are also visible. A properly recorded and conducted confession is nearly unassailable.

The practice also allows police interviewers to focus on their questions and suspects' answers without taking notes. And if a suspect does not confess, Pennsylvania law still allows incriminating admissions and conflicting statements made during an interrogation to be introduced at trial if the defendant takes the stand.

Recording of interrogations is gaining acceptance in Pennsylvania, and the Pittsburgh Police Department is among those that have instituted the practice. It hasn't spread quickly, though, partly because Pennsylvania's eavesdropping statute doesn't allow recording of a conversation without both parties' consent. Although suspects who agree to an interrogation will usually agree to recording, the consent requirement can impede questioning.

Routine recording also requires changing other old habits. The Philadelphia Police Department, for example, requires officers to take a written statement from a suspect before attempting to record a confession.

The legislature could hasten adoption of the practice. First, it should amend the eavesdropping statute to permit audio and video recording of interrogations without suspects' consent or knowledge, as the law allows in Illinois and Wisconsin. Once a person agrees to speak with the police and is warned that his statements could be used against him, he has effectively waived his right to privacy. (If a suspect insists that an interrogation not be recorded, the refusal should be recorded and the interrogation should proceed without taping.)

Second, the legislature should require that interrogations of anyone suspected of a homicide or other violent crime be electronically recorded from the beginning, as is required in Illinois, Wisconsin, and Washington, D.C.

Departments that don't abide by the requirement should get an opportunity to offer a compelling reason. Failing that, the evidence of a confession can be presented to jurors with a strongly worded cautionary instruction, advising them that interrogations are normally recorded and that they should judge its reliability accordingly. New Jersey requires such an instruction, and a national model statute on the subject is available.

The recording requirement may be implemented over time, perhaps starting with interrogations of homicide and rape suspects. Other violent crimes could be included gradually.

Such legislation would bring Pennsylvania police departments in line with hundreds nationwide. It would also simplify matters for departments that have already attempted to implement recording of interrogations.

The arguments against recording have been disproved by experience. Tom Sullivan, an experienced defense lawyer and former U.S. attorney from Chicago, has studied the issue and found that police forces familiar with the procedure endorse it. Not one such department has abandoned the practice. According to Sullivan, the departments that oppose recording usually have little experience with it, and their opposition is usually based on purely hypothetical concerns.

The argument that the practice is too costly has been largely put to rest by the availability of affordable recording equipment. However, any legislation should provide leeway in that regard for police forces in small communities.

Some law enforcement officials contend that recording will hamper questioning and the development of a rapport between the interrogator and the suspect. But experience has shown that recording does not in fact deter interrogations.

Judges, juries, and the public expect police interrogators to act like law enforcement officials and use proper interrogation techniques, and recording helps ensure that they do so. Any confession presented in court should be obtained the right way from a defendant who actually committed the crime.