USDOJ Reverses Policy on Videotaping Interrogations

The United States Department of Justice has announced that effective July 11, 2014, it will institute a new policy on recording interrogations. The policy, which will apply to the Federal Bureau of Investigation as well as other federal law enforcement agencies, will require most interviews with witnesses to be videotaped. This represents a break in policy for the DOJ, whose senior officials had previously opposed the change, taking the position that recording interrogations would reveal the tactics of the agencies and discourage witnesses from making statements.

The trend across the country has clearly been to require recording of interrogations, and the new policy brings the feds in line with about 20 states, as well as the District of Columbia, which have passed laws along the same lines.

Some may be curious about the background of the issue, and why some people seem to be so fervent in their desire for recordings. The answer is simple. Since the advent of DNA testing, hundreds of convictions have been overturned based upon irrefutable scientific evidence. In those cases, we have been able to examine in detail the reasons for the wrongful convictions. What has been found is that there are numerous flaws that have contributed to these miscarriages of justice. They include false eyewitness identification, unreliable informant testimony, police and prosecutorial misconduct, and others. Nationwide, in about 28% of DNA exonerations, however, the cause of the wrongful conviction has been false confessions. The reasons for the false confessions vary, but they include psychological problems, intoxication, and coercive interrogation techniques. Videotaping the interrogations will undoubtedly improve the reliability of confessions.

But before you stand up and applaud, remember that all we’ve seen so far is a policy decision. We don’t have to look far to for an example of such a decision leading to little change in the field. In 2012, then New York Police Commissioner Ray Kelly announced the proposed installation of videotaping equipment in every precinct in the city; he also indicated that videotaped interrogations would become standard NYPD procedure in serious cases. Two years later, only about a third of New York’s 76 detective squads even have interrogation rooms with recording equipment. New York remains one of just over half the states without a law requiring the procedure, although Governor Cuomo has pushed for legislation addressing the issue.

The NYPD lack of action on this issue is even more disturbing since in New York State, false confessions (and false statements) were the reasons for 44% of wrongful convictions recently discovered as the result of DNA evidence.

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