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Video Recording of Confessions: When Interrogation Goes too Far

By Rick Collins and Lucas Kessler*

videocameraIn the recently decided case of People v Thomas, the New York State Court of Appeals held that police questioning had gone too far.  The defendant’s confession was not his own; the police essentially put words in his mouth and forced him to confess.  The court reversed the conviction, ruling that the confession should have been suppressed, and ordered a new trial.

The facts of the case:  The defendant’s baby had been found gravely injured one morning and later died at the hospital.  The doctors concluded that the child had been killed by blunt force trauma.  The police suspected that the defendant had killed his child, and they began to interrogate him in custody.  The interrogation began with a 9-hour session.  Then, after the defendant had been involuntarily hospitalized in a mental institution for 15 hours and then arraigned, the interrogation resumed.  The interrogation involved multiple deceptions and coercive tactics, and eventually led to a confession.  The jury, presented with evidence including the confession, convicted the defendant of murder. The defendant was found not guilty after a two-week re-trial.  The jury deliberated for 7 hours over two days before reaching its verdict of acquittal.  Thomas spent nearly six years in jail before the acquittal.

In general, police are legally permitted to lie to and deceive their suspects as long as the resulting confessions are voluntary.  They can falsely say, for example, that co-conspirators confessed or that fingerprints were recovered.   But there is a point at which deceptions can render the confession involuntary.  Here, the police told the defendant that if he did not confess, his wife would be arrested.  They told him that if he admitted he hurt his child, he would spare his wife, not be in trouble, and get to go home.  The interrogators also falsely told the defendant that his deceased son was still alive, and that by confessing to exactly what happened, crucial information would be revealed to enable doctors to save the child’s life. The totality of the lies – in nature and volume – was enough to convince the court that the defendant’s resultant statement was not voluntary.

Perhaps the most significant factor leading to the court’s ruling was that the interrogations had been recorded on video.  The videotaped custodial interrogation provided an unambiguous recording of exactly what happened.  It minimized reliance on recollection or written notes and avoided a “he said, she said” dispute between the suspect and the police.  The court could clearly see the process by which the confession was extracted.

Nationwide, an increasing number of jurisdictions are making custodial interrogation video recordings mandatory.  However, the majority of states, including New York, still have not.  At the local level, individual county law enforcement agencies have begun to adopt mandatory video recording policies.  Rochester, Binghamton and Columbia are a few jurisdictions in New York that have implemented regulations to record custodial interrogations.

There are many benefits to electronically recording custodial interrogations.  In the Thomas case, it worked to the favor of the accused.   However, a videotaped confession is more often a devastating piece of evidence against a defendant.   Having a visual record to review can also help exonerate the police from false claims of coercion or abusive interrogation, especially if the recording runs the entire length of the questioning – from Miranda Warnings to the very end.   Overall, it’s not surprising that resistance to mandatory video recording of custodial interrogations is diminishing, and we can expect to see the implementation of this policy in more and more jurisdictions.   For more information, see https://www.nacdl.org/criminaldefense.aspx?id=31573&libID=31542.

*Lucas Kessler is a law student intern with Collins, McDonald & Gann.

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