Legislative Memo: An Act to Amend the Criminal Procedure Law, in Relation to the Electronic Recording of Interrogations

This bill would require that custodial interrogations be electronically recorded in order to eliminate disputes in court as to what actually occurred during the interrogation, thereby affording protection to the innocent and improving prosecution of the guilty.

The legislation would make inadmissible any statements made during a custodial interrogation unless such interrogation was electronically recorded, and would require the recording to be retained for a period of ten years measured from the date of judgment.

In addition to helping to reduce the risk of wrongful convictions of innocent persons and to ensure that the highest quality evidence possible is obtained from custodial interviews, NYCLU also believes that recording of interrogations will also provide persuasive documentary evidence of police misconduct.

Because we believe that electronic recordings of custodial interrogations will reduce the potential for coerced confessions and police misconduct, the NYCLU strongly supports this legislation and urges its swift passage.

As the New York State Bar Association stated in its recently released report on wrongful convictions, national research shows that false confessions contribute to almost 25% of the known cases of wrongful conviction. Indeed, since 2000, ten individuals convicted of felony crimes in New York City have been exonerated by DNA evidence, five of whom allegedly confessed to the crime.

Perhaps as a result of the increasing realization of the dangers of false confessions and coercive interrogations, many communities in New York, as well as New York’s sister states, have begun to videotape custodial interrogations. Indeed, in 2005, the New York Court of Appeals stated:

We note that an increasing number of jurisdictions are now mandating that police questioning of arrestees be recorded, and that a resolution calling for all law enforcement agencies to videotape in their entirety the custodial interrogations of crime suspects has recently been adopted by the New York State and American Bar Associations.

Currently, Alaska, Illinois, Maine, Minnesota, Texas and the District of Columbia have, by statute or case law mandated the electronic recording of certain custodial interrogations. As of summer 2004, law enforcement agencies in at least 238 cities and counties, including Los Angeles, San Francisco, San Diego and Houston, regularly record custodial interviews of suspects in felony or other serious investigations.

Most recently, the Indiana Supreme Court added a rule to the Indiana Rules of Evidence barring statements made during custodial interrogations from being introduced at trial unless the statements are videotaped (with exceptions for exigent circumstances).

While the NYCLU’s support for electronic recording is rooted in the elimination of police misconduct and the inviolability of criminal suspects’ constitutional rights, other organizations, with far different motivating interests, have also come out in support of broad-based use of recording technology.

For example, the National District Attorneys Association encourages police departments to videotape interrogations. Even police officers, who were initially skeptical about electronic recording, have eventually decided that the recording was in their best interest as well. As Schenectady County District Attorney Robert Carney told the NYSBA’s Task Force on Wrongful Convictions:

Police officers told us that when the District Attorney asked them to begin recording interrogations, they were concerned, believing that this would tend to compromise their methods, make them overly self-conscious, or embarrass them by revealing to juries the kinds of statements that interviewers sometimes make in order to build bonds of identification with the subject of an interview.

Instead, they found that the preservation of the actual interrogations provided their best defense against false claims in subsequent legal proceedings. None of the [] police officers we talked to wanted to return to the days when they did not have the ability to record interrogations.

In response to potential concerns regarding the challenges of implementing electronic recording in a state with as large a police force as New York, other jurisdictions that are comparable in size have been able to successfully implement such a practice.

Indeed, the nation’s second largest police force, the Chicago Police Department, has successfully implemented videotape interrogations in conjunction with a 2005 state law, as has Washington D.C.’s Metropolitan Police Department, which began videotaping the interrogation of suspects in 2006.

The electronic recording of custodial interrogations has the potential to help root out police misconduct and eliminate wrongful convictions secured by coerced confessions. For these reasons, the NYCLU urges New York State’s legislature to adopt A.5213-A; S.7877-A.