Requirement That Interrogations Be Recorded Is the Best Way To Preserve Integrity Of Confessions


By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair


The New York-based Innocence Project reports that as of September 10, 2010 there have been 258 DNA exonerations in this country. The project says that 25 percent of them involved false confessions and incriminating statements.


So why would a person confess to somewhat he didn’t do?


“The interrogation itself is stressful enough to get innocent people to confess,” Saul Kassin, psychology professor at John Jay College of Criminal Justice in New York told the Chicago Tribune this past July. “But add to that a layer of grief and shock and perhaps even some guilt—‘I should have been there’—and then that the parent is trying like hell to be cooperative because they want the murder of their child solved.”


Professor Kassin was referring to a case like that of Kevin Fox who, according to the Tribune, spent 14 hours in a small, windowless interrogation room before he “simply gave up” and confessed to the murder and sexual assault of his three-year old daughter. The detectives handling the interrogation denied Fox’s request for an attorney; threatened to have it arranged so other inmate could rape him; repeatedly screamed at him while showing him pictures of his daughter bound and gagged with duct tape; and told him that his wife was going to divorce him.


Fox needed relief—any kind of relief. He finally agreed with the detectives’ “hypothetical account” of how his daughter had died in an accident. He believed the “phony details” would not match the evidence ultimately developed by the police. He was wrong. Tribune reporters Steve Mills and Lisa Black said the police kept him in jail 8 months before DNA evidence excluded him as a suspect, This past May, the newspaper reported, another man was arrested for the rape/murder of Fox’s three-year-old daughter.


“Trauma, lack of sleep and highly manipulative interrogation techniques are a few factors that can cause the most level-headed people to falsely confess to a crime,” Mills and Black wrote, “even one as heinous as a child’s murder.”


Added to these factors Psychology Today reported in 2003 that children, the mentally handicapped, or individual’s whose recollections are clouded by drugs or alcohol, are “particularly vulnerable” to begin doubting their own memory. The Innocence Project lists the following factors the group says contributes to false confessions:


  • Duress
  • Coercion
  • Intoxication
  • Diminished capacity
  • Mental impairment
  • Ignorance of the law
  • Fear of violence
  • The actual infliction of harm
  • The threat of a harsh sentence
  • Misunderstanding the situation


The Innocence Project agrees with Psychology Today that confessions from juveniles are particularly unreliable because children can be so easily manipulated. Children tend to believe they can “go home” as soon as they admit guilt. Likewise, the group agrees with Psychology Today that “people with mental disabilities have often falsely confessed because they are tempted to accommodate and agree with authority figures.”


These disadvantaged individuals are really at the mercy of police interrogators who have no “special training on questioning suspects with mental disabilities” and who tend to view mental impairment as an opportunity to secure a confession with little or no regard for its veracity. And it should be stressed that the same manipulative interrogation techniques used on these vulnerable individuals can also prompt “mentally capable adults” to give false confession as well because, as the Innocence Project suggests, they are often subjected to lengthy interrogations under harsh physical conditions; brow-beaten into mental, physical and psychological exhaustion; or led to believe they will be released after confessing and can then prove their innocence.


That’s why more than 500 jurisdictions nationwide, according to the Innocence Project, “regularly record police interrogations.” The group cited a 2004 Illinois study of 200 locations that recorded police interrogations and found law enforcement officials embracing the concept “as good law enforcement whose time has come.” In fact, as least two state supreme courts, Alaska and Minnesota, have ruled that their constitutions provide criminal defendants with a due process right to have their “custodial interrogations recorded.” Illinois in 2003 became the first state require by law the recording of all custodial interrogations. To date, according to the Timothy Cole Advisory Panel on Wrongful Convictions (Panel) Report,  17 states and the District of Columbia, require custodial interrogations be recorded either through state law or court decisions.


And if recommendations handed down by the Panel last month are adopted, custodial interrogations in the State of Texas will be recorded “from delivery of Miranda warnings to the end” of the interrogation process. The Panel, however, qualified its recommendation with the caveat that “the policy should include a list of exceptions to recording and the judicial discretion to issue a jury instruction in the case of an unexcused failure to record.”


These exceptions would include:

  • Equipment malfunction,
  • Uncooperative witnesses,
  • Spontaneous statements,
  • Public safety exigencies, or
  • Instances where the investigating officer was unaware that a crime required recorded interrogations had been committed.


But the Panel was firm on the principle that all custodial interrogations be mandatory in the following cases:


  • Murder,
  • Capital murder,
  • Kidnapping,
  • Aggravated kidnapping,
  • Continuous sexual abuse of a child,
  • Indecency with a child,
  • Sexual performance by a child,
  • Sexual assault, and
  • Aggravated sexual assault.


The Panel, citing the Washington, D.C.-based The Justice Project’s study Convicting The Innocent, found that “false convictions have contributed to wrongful convictions in Texas.” The Panel place false confessions in three categories: voluntary, coerced-compliant, and coerced-internalized. The Panel described each category as follows: “In a voluntary false confession, an innocent person may offer a false confession without being questioned by investigators. The two types of coerced confessions are elicited through the process of interrogation. In coerced-compliant false confessions, the suspect confesses for a functional purpose, such as to escape a situation or avoid a threat. Those who give coerced-internalized false confessions, however, ‘come not only to capitulate in their behavior, but also to believe that they committed the crime in question.’”


Citing a North Carolina Law Review article titled “The Problem of False Confessions in the Post-DNA World” by Steven A. Drizin and Richard A. Leo, the Panel found that a “large proportion of documented false confessions” come from young suspects, 35 percent of whom are under age 18 and 50 percent under age 25. The studies also show that a high percentage of proven false confessions occurred after unusually long interrogations, an average of 16.3 hours with two lasting between 48 and 96 hours.


More recently The New York Times reported about a study conducted by Brandon L. Garrett, a law professor at the University of Virginia, which found that more than 40 persons since 1976 gave false confessions only to later be exonerated by DNA evidence—many of whom, as the Times reported, were “pressed beyond endurance by persistent interrogators. Peter J. Neufeld, founder of the Innocence Project, found the results of Garrett’s study disturbing. “In the past, if somebody confessed, that was the end,” Neufeld told the Times. “You couldn’t imagine going forward.”


Recording custodial interrogation eliminates the kind of law enforcement abuses cited in these studies and lends integrity to the front end of the custodial process. The Panel, and other reliable authorities, point out that “confessions have a significant impact on jury verdicts and sentencing. Studies have found that confession evidence has a greater impact on jurors and is seen as having a greater impact by jurors than any other type of evidence.”


That’s why the New York County Lawyers’ Association and the American Bar Association’s Section of Criminal Justice, Report to the House of Delegates 15, have strongly recommended that there be a complete recording of all custodial interrogations. We join in with that recommendation. It is a recommendation shared by many—some who have advocated it for years. For example, one 1993 study by William A. Geller found 2400 police and sheriff departments across the country that videotaped at least some of their interrogations with 84 percent of them finding the practice improved the quality of custodial interrogations.


There are more than 1000 law enforcement agencies in Texas. In 2009 the Justice Project conducted a survey of 441 of these departments and found that 380 of them “indicated that they either routinely record custodial interrogations, record interrogations for certain classes of felonies, or record interrogations at the discretion of the lead investigator.” Police departments in Houston, Dallas, San Antonio, Austin, Amarillo, Corpus Christi, El Paso, Irving, and Pasadena provide what the Panel called “more robust recording of interrogations.”


We agree with the Panel that false confessions will never be completely eliminated from our justice process, but a mandatory, statewide statutory requirement that all custodial interrogations be recorded is the best way to document and preserve the integrity of confessions so that judges and juries can make the most reliable decisions about them.