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Univ. of South Carolina School of Law

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Sunday, January 25, 2009

Rock, Chalk, Recorded Talk?: Kansas To Consider Bill Requiring Recording Of Interrogations Of Suspects

Under a new bill sponsored by Kansas State Senator David Haley, law enforcement officers across Kansas would have to videotape their interrogations of suspects, with any untaped statements being inadmissible at trial.  According to Haley, various police agencies in 48 states, including some in Kansas, videotape interrogations of people in custody.  Indeed, as I noted last year, Illinois has a law requiring officers to videotape their interrogations after Barack Obama was able to get legislation passed over severe opposition.

There is similar opposition in Kansas, and it comes from the expected source:  law enforcement officials and prosecutors.  They have claimed that the if the bill were passed, it would be costly and raise the issue of whether questioning someone before arrest could be used as evidence if not videotaped.

I tend to side, however, with those courts which have found that not recording interrogations increases costs, on balance.  For instance, the Supreme Judicial Court of Massachusetts found in Commonwealth v. DiGiambattista, 813 N.E.2d 516, 529 (Mass. 2004), that: 

     "As is all too often the case, the lack of any recording has resulted in the expenditure of significant judicial resources (by three courts), all in an attempt to reconstruct what transpired during several hours of interrogation conducted in 1998 and to perform an analysis of the constitutional ramifications of that incomplete reconstruction."

And as the Supreme Court of Iowa found in State v. Hajtic, 724 N.W.2d 449, 454 (Iowa 2006),

     "We are aided in our de novo review of this case by a complete videotape and audiotape of the Miranda proceedings and the interrogation that followed."

And while requiring that interrogations be recorded creates some problems, I agree with the Supreme Court of Arizona's conclusion in State v. Jones, 49 P.3d 273, 279 (Ariz. 2002), that:

     "[r]ecording the entire interrogation process provides the best evidence available and benefits all parties involved because, on the one hand, it protects against the admission of involuntary or invalid confessions, and on the other, it enables law enforcement agencies to establish that their tactics were proper."

-CM

http://lawprofessors.typepad.com/evidenceprof/2009/01/ks-video-interr.html

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Comments

This is consistent with the research, and is supported by the Sullivan Report --
Thomas P. Sullivan, Police Experiences with Recording Custodial Interrogations, Summer 2004. which can be found at:
http://www.law.northwestern.edu/wrongfulconvictions
/Causes/CustodialInterrogations.htm
As a practitioner I think there is a positive side to the video-taped interrogation. So long as the taping begins and continues while the suspect is in the room. I do see taping to be helpful in reducing the number of suppression motions. If nothing else it's easier to show the tape to the client and say, "see the judge ain't gonna believe you."

Posted by: Phil Cave | Jan 25, 2009 12:34:57 PM

As a prosecutor this is a great thing. This will take away almost all suppression hearings.

Posted by: Dreadnaught | Jan 28, 2009 8:17:27 AM

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