This week, the New York Times ran a story highlighting the clash between one recently “released” US attorney’s push to record all interviews/confessions with suspects and the FBI’s adamant refusal to comply. As a general rule, my gut wants to fight against anything that prosecutors rally for. But in this case, my gut would end up on the side of the FBI. And then my gut gets very confused.
Paul K. Charlton was, until recently, a US attorney in Arizona and grew concerned about the fact that individuals suspected of committing crimes that occurred on the state’s numerous Indian reservations were not being recorded, per the FBI’s policy, whereas those that occurred on non-federal land were routinely being recorded. And this was apparently forcing him to plea out cases where a recorded confession could have provided him with a guilty verdict.
“A defendant’s admission regarding his own criminal conduct is often the most single powerful piece of evidence in a case,” he wrote, in explaining the new policy. The F.B.I. agent in charge in Arizona offered some flexibility, approving the uniform taping of interviews with child victims of sexual crimes. But the agency made clear that mandatory taping of all suspects’ statements was a nonstarter.
[…]
They disputed Mr. Charlton’s claim that he lost cases, or was forced to offer plea bargains, because of the failure to tape convictions. Officials also questioned the cost of a broad recording and transcription effort and the likelihood that defendants might decline to offer statements if they knew they were being recorded.
But most disturbingly, the FBI didn’t want jurors seeing their use of law enforcement “techniques”:
“Perfectly lawful and acceptable interviewing techniques do not always come across in recorded fashion to lay persons as proper means of obtaining information from defendants,” said one of the once-secret internal Justice Department communications made public as part of the investigation into the dismissals of the United States attorneys.
As a defense attorney, I don’t really want my client’s calm, coherent, factually accurate confession to be recorded. But I want the reading of (and potential waiver or lack thereof) the Miranda warnings recorded. And I want to know if he was drunk. And I want to know if his “confession” started one way and ended up sounding different due to some “suggestions” by police. And I certainly want to know if the police threatened him, or hit him, or in any other way violated his rights or the law.
In 2004, the Massachusetts Supreme Judicial Court decided a case called Commonwealth v. DiGiambattista, holding that the defense is entitled to a jury instruction that any non-recorded confession/custodial interrogation statement introduced at trial should be viewed with “particular caution.” Defense attorneys hailed the decision as a rare victory, but prosecutors feared it would cause juries to doubt credibly police testimony. But it has proved, according to this week’s Massachusetts Lawyer’s Weekly, just to have “leveled the playing field.”
In fact, Bennett and several other DAs say the taped confessions have proven so beneficial for the prosecution that they’ve spent tens of thousands of dollars equipping police departments with recording equipment.
And while defense lawyers maintain that DiGiambattista can be used to aid their clients’ cases in many ways,…the decision’s legacy may be more about the fairness it has brought to disputes involving what transpired during police interrogations.
“It has made life easier for all concerned,” says John A. Baccari of Wakefield, the defense lawyer who won the DiGiambattista case before the SJC.
Not surprisingly, the now more regularly recorded interviews have revealed that some interviews are conducted properly and without misconduct…and others still ignore basics like honoring the right to an attorney and to remain silent. So it can be really good for defendants (whose credibility doesn’t stand a chance against that of the police) or it can be really bad. On a case-by-case basis, it will certainly vary. But I have to be in favor of anything that makes the police more accountable for their actions.
