Courts generally consider the evidentiary power of confessions to be uniquely persuasive of guilt. In 1991, the U.S. Supreme Court Arizona v. Fulminante found that a confession is unlike any other evidence, saying “the defendant’s own confession is probably the most probative and damaging evidence that can be admitted against him … Certainly, confessions have profound impact on the jury, so much that we may justifiably doubt its ability to put them out of mind if told to do so.”
The problem with this observation is that it is dicta, not clearly established federal law, drawn mostly from a dissenting justice in an earlier case. The reality is that the lower courts have been left to make their own determinations about whether a given confession is involuntary based on the “totality of the circumstances,” which includes the defendant’s characteristics and the nature of the interrogation. The determination of voluntariness will almost always turn of whether the “nature of the interrogation” coerced the defendant to the point that it impaired his ability for self-determination.
And that’s why prosecutors and courts have developed a profound love for videotaped confessions. In a July 13, 214 Op-Ed piece in The New York Times, University of California law professor Jennifer L. Mnookin explained why there is so much support for videotaped confessions in our criminal justice system:
“Support for electronic recording has been accelerating in recent years, and its backers now come from all sides of the criminal justice process. Though some in law enforcement remain critical of the idea, firsthand experience with recording tends to turn law enforcers into supporters—it eliminates uncertainty about police conduct and lets investigators focus on the interrogation rather than taking detailed notes.
“Likewise, criminal prosecutors find that when a defendant confesses or provides incriminating information, the video offers vivid and powerful evidence. At the same time, it aids defendants because the very presence of the camera is likely to reduce the use of coercive or unfair tactics in interrogation, and documents illegitimate behavior if and when it does occur. And a recording provides judges and juries with information about what took place in a more objective form.”
As of December 2013, 19 states and the District of Columbia created statutes, rules, or court decrees mandating that virtually all police interrogations be recorded, according to PolitiFact. The New York-based Innocence Project reports that nationwide there are over 850 jurisdictions that regularly record police interrogations. Just this past May, U.S. Attorney General Eric Holder announced that the FBI and other federal law enforcement will be required to record interrogations, except in national security cases.
So, with so much support, what could be wrong with videotaped confessions?
Professor Mnookin informs us that recent research reveals that “interrogation recording may in fact be too vivid and persuasive. Even seemingly neutral recordings still require interpretation. As advertisers and Hollywood directors know well, camera angles, close-ups, lenses and dozens of other techniques shape our perception of what we see without our being aware of it.”
The research compiled by psychologist C. Daniel Lassiter of Ohio University is certainly impressive, if not compelling. He showed mock juries the same recorded interrogation of a defendant. Professor Mnookin pointed out that some juries were shown only the defendant while the other juries were shown a “wider-angle view that included the interrogator.” Astonishingly, the jurors who saw the recording with just the defendant were less likely to find the interrogation “coercive” and more likely “to believe in the truth and accuracy of the confession that they hear—even when the interrogator explicitly threatens the defendant.”
That’s scary. It raises the concern expressed by Professor Mnookin: whether jurors, prosecutors, judges, the police, and even defense attorneys “can actually tell the difference between true and false confessions, even with the more complete record of interactions that recorded interrogations provide.”
The Innocence Project reports that 30% of the nation’s 317 exonerations involve cases in which the innocent person made incriminating statements to the police.
But why? Why would someone confess to any crime, much less a horrible crime, he or she did not commit?
Reputable psychologists have studied this question for years. Rick Nauert, Senior News Editor with PsychCentral wrote a September 12, 2013 piece about a report by Drs. Max Guyll and Stephanie Madon published in the journal Law and Human Behavior. The doctors pointed out that stress levels increase in all people accused of a crime, but the levels in wrongly accused persons were significantly lower than those who actually committed their crimes.
“The innocent are less stressed because they believe their innocence is going to protect them and they think everything is going to be OK, so there is no reason to get worked up over the accusation,” Madon said. “But if you’re going into a police interrogation and you’re not on your guard, then you could make decisions that down the line will put you at risk for a false confession. Because once you talk to police, you’re opening up the chance that they are going to use manipulative and coercive tactics.”
That’s why our advice has always been, and will remain so: do not talk to the police. Before the electronic recording is ever turned on, the police will use deceit and lies and manipulation to minimize the severity of the situation in order to get the accused to admit, even on camera, that he did the crime. Once the accused admits to that, jurors will then determine why he did it – and the police will not be on the witness stand trying to minimize the crime to them.
Videotaped confessions are better than the standard written or verbal confession, but that does not mean they are infallible. Defense attorneys must study videotaped confessions for hidden cues and be prepared to thoroughly cross-examine the officers who took the recorded confession. As the old saying goes, the devil is in the details.