Videotaped Interviews

Videotaped Interviews

 

For much of American (or even world) history, there was no way to accurately document law enforcement's interactions with either criminal suspects, or alleged victims/witnesses. With the former, it usually came down to a defendant's word against a cop's, which was really no contest. And with the latter, law enforcement's latitude to mold and shape testimony was virtually limitless. There was simply no possibility for accountability.

 

But beginning around 1990, affordable, portable video cameras became widely available. And, more to the point for our purposes here, audio/video recording systems were being installed in the ceilings of police interrogation rooms. Slowly but steadly, though some feared and resisted it, more and more police departments were videotaping interrogations and interviews. However, even by the year 2000, when 'Arthur' was interviewed and Nickel was interrogated, the Albany County Sheriff's Department was still operating as if it were 1950. It neither videotaped nor even audio recorded either Nickel's or 'Arthur's' statements. Why? What were they afraid such tapes might reveal?

One might well assume that, given the stakes involved, the videotaping of police and prosecution interviews of alleged victims and perpetrators alike would be a matter of routine. But it isn't. Although this is a regular practice for many law enforcement agencies, and a handful of states do actually mandate it (at least for some crimes), it is not the law nationwide. Because of the danger of suggestibility in allegations of child sexual abuse, the videorecording of interviews with alleged victims is particularly crucial.

The first part of this section addresses the importance of videotaping interviews of alleged child sexual abuse victims. When this does not happen, it may well be impossible to determine what -- if any -- abuse actually occurred, which frustrates justice and the fundamental fairness of trials. The failure to record also makes it impossible to evaluate possible interviewer bias , and hinders interviewer training in terms of best practices. Conversely, videorecording aids in the evaluation of the admissibility of children's testimony at trial, which judges favor, as do many prosecutors, child specialists, and numerous professional organizations.

The second portion concerns recording interviews of alleged perpetrators. Of primary concern here is making sure the interviewer is neither putting words in the suspect's mouth, nor using coercive or other illegal tactics in order to wring a confession out of him. As with interviews of children, these interrogation sessions need to be recorded from start to finish.

G23 [Even as late as 2015 , law enforcement in Albany County was still not regularly recording interviews of alleged child sexual abuse victims.] "[An acquitted defendant's attorney] said when the police interviewed the girl, it was not tape-recorded or videotaped."

B1 [272] "[T]he failure to record initial interviews with child witnesses rules out the possibility of ever reaching any firm conclusion as to whether any abuse actually occurred. In other words, the primary evidence has been destroyed."

M3 [385] "[T]he orthodox approach of waiting until the trial to elicit a child witness's memory of events long past has demeaned childen, denied them credibility, and frustrated justice. To permit adult witnesses to relate children's unrecorded hearsay from investigative interviews is to tolerate listener distortion, foster professional ineptitude, and again to frustrate justice. Unlike our ancestors, we have the means at hand to preserve a record of a child's account made while the events are relatively fresh and vibrant."

M17 [180] "[A] forensic interview of a child by a member of the prosecutorial team offers many opportunities for compromising the reliability of the child's remembered account. A vast volume of research data now exists that documents the conclusion that the forensic interviewing of children is a very delicate, sophisticated, and high-risk enterprise. Furthermore, there are so many additonal advantages from videotaping for the administration of the criminal justice system, far outweighing any suggested disadvantages, that videotaping of forensic interviews of children should become standard operating practice. But...videotaping is not universally required, and, indeed, off-the-record forensic interviews of children continue to be tolerated as 'good enough for government work.'"

[181] "The salient features of a forensic interview of a child are that the state arranges, directs, and otherwise controls the creation of the evidence; that there is an opportunity for interviewer distortion of the evidence; that once contamination occurs, the distortion may be irreversible; that the state agent (the interviewer) cannot himself produce a faithful alternative record of the myriad interactions that occur during the interview; that the defendant cannot replicate this evidence by any other means; and that this evidence is the most critical and may be the only evidence of proof of the accusation...The forensic interview of a child is such an important event in any child abuse prosecution that a record of the exchange is essential to an evaluation of the reliability of the key witness and of the sufficiency of any accusation."

C2 [242] "One might think that in such important criminal investigations as those described in this book, there would be electronic (video or audio) recordings of the initial interviews, as well as all subsequent interviews, with the children so that the court could hear the earliest versions of the child's stories in th child's own words and examine how the child's story changed over time. Such evidence is crucial to rule out the potential influences of coaching and interrogative suggestion. Although one would excuse such missing data when the allegation was first made to parents, one would hope that it would be normal procedure for the police, social workers, and therapists to have recorded all interviews with the children, if the purpose of the interview could -- even remotely -- be considered 'forensic'."

H1 [890] "Because of all the possible biasing effects of the interviewer, it is now generally argued by scientists working in this area that no interview of a child can be adequately evaluated without a tape recording."

Y1 [105] "In order to achieve the goals of an effective interview, the interview should be recorded. A video recording is preferred, together with an audio duplicate, as it is easier to make a transcript from an audio recording."

W6 [240] "All interviews of child witnesses should be videotaped...since a tape is the only means whereby the procedures and information obtained during the interview can be adequately documented."

M23 [1286] "Many scholars and practitioners agree that the best way to determine whether interviewers are using proper interviewing techniques is to document the interview so that other professionals can independently evaluate the interview...[V]ideotaping a child interview ensures that there is an accurate and complete record of the exchange between the interviewer and child. It also provides for better monitoring, supervision and training of the interviewers. And it has the added benefit of minimizing the number of times that child is subject to interviewing. If a qualified professional conducts a videotaped interview, police, prosecutors, and defense attorneys are less likely to request additional interviews of the child."

M5 [86] "Videotaping provides an incentive for interviewers to use proper interview technique. Videotaping puts the interviewer in the spotlight, increasing the incentive to use proper interview technique."

M3 [372] "In its appellate brief, defense counsel amassed compelling evidence documenting the likelihood that improper interviewing techniques will skew children's accounts. In their analysis of the audiotaped interviews in [State of New Jersey v. Kelly Ann] Michaels, they were also able to deminstrate that the investigative interviewers had repeatedly violated conventional interviewing protocols, such as the Guidelines published by the National Center for the Prosecution of Child Abuse. The existence of records of at east some of those interviews made these assertions plausible and ultimately persuasive. If the audiotapes (or transcripts) had not been available, would the court have been willing to conclude that coercive or suggestive interviewing had occurred? Left with only the self-interested (or naive) responses of the investigative interviewers and the children's own frayed memories of earlier interactions, there would have been little proof that the children's trial acconts had in fact been shaped or trained by these encounters."

M17 [181] "[A] pair of reforms consistently recommended by scholars, empiricists, and psychologists is that the initial interew be conducted by a trained professional and that the intervew session be videotaped so that other professionals can independently evaluate it. At least thirty-nine states now explicitly authorize at least some use of videotaped interviews of child victims, although no state as of [182] yet [the year 2002] mandates or provides significant incentives for videotaping forensic interviews."

[183] "All players, including, ultimately, the trier of fact [i.e., jury or bench trial judge], need to be able to assess the delicate interaction between the interviewer and the child, and to view the body language of both. In studies of children's interviews conducted by veteran investigators, researchers found that, even immediately after the encounter, important content was omitted in the interviewers' recall and that most of the verbatim information -- the content of pivotal questions and answers -- was lost. In sum, 'interviewers, like all other adults, have limited memories.'...Thus, videotaping...provides a complete, accurate record of the interchange, freeing the interviewer to relate to the child without the distraction of memory recall.

"Videotaping provides for 'increased transparency of the interviewing process.' The issue is whether we know precisely what transpired at forensic interviews or whether we must only guess about it. A record of the exchange between interviewer aned child is more important than a record of an adult's interrogation because a young child rarely can recall experiences without assistance from an adult, and often requires an interlocutor using prompts and cues. The moment an adult strides into the picture, even a helpful adult motivated only to obtain a complete and accurate account of an event, the risk of adult distortions is considerable. Although there remains some disagreement about the rationale, social scientists concur that young children are more suggestible than adults and are more likely to accept and incorporate information into their memories when interacting with an authoritative adult. The fifth benefit of videotaping is that it permits an assessment of the likelihood of interviewer distortion."

[201] "[E]arly in the investigation, when the child's remembered account is likely to be at the height of its vibrancy, the state enjoys the unilateral advantage of evaluating the child's credibility. Such an interview is a unique encounter, a nonreplicable interaction between two human beings. Without a verbatim record, there is no way to test the validity of the claim that the forensic interview of a child was neutrally conducted and faithfully recalled."

[204] "[W]ithout a videotape it is impossile to review and assess the impact of the interviewer's role during the twists and turns of a child's disclosures."

[207] "With so many possibilities for contamination, the videotape of the forensic interview is the benchmark that is essential for tracing and then unraveling the child's independent reminiscences from the suggested gloss or misinterpretations of well-meaning adults."

S30 "[One] systematic problem that hinders the assessment of evidence is that factfinders are largely uninformed, or ill-informed, about the manner in which the evidence was collected...Factfinders would gain much by being able to compare witnesses' courtroom testimony with the exact statements they initially gave the police. It would also be helpful to provide factfinders with a complete record of the investigative procedures used to elicit their testimony, such as...the verbatim recording of the interview ,and the pressures applied in the interrogation room.

"This information is typically unavailable to the factfinder, as the investigative process is rarely recorded...Due to the limitations of memory, recalling every detail from a comprehensive investigation is simply impossible. The research shows that investigators forget much of the relevant information before the interview is over...[E]xperienced forensic and child protective interviewers recalled twenty-two percent of the questions they asked in a simulated interview. Amye R. Warren et al., Assessing the Effectiveness of a Training Program for Interviewing Child Witnesses, 3 Applied Developmental Sci. 128 (1999)."

C2 [248] "[V]ideotapes may povide an important incentive for investigators to carry out proper interviews because they know that they will be scrutinized by the defense team."

I2 [335] "[W]hile the court directed that all interviews of [the alleged child victim] be videotaped...this order was inexplicably and unjustifiably disregarded. The extant record provides no opportunity for independent review of those interviews, or any way to determine if they were tainted, as is often the case due to the innate suggestibility of children, and particularly, as here, where one of the subject children has a complex set of psychiatric problems. The court was left without a means of making any independent assessment of the methodology and fairness of the interviews, and respondent's counsel was deprived of an opportunity to cross-examine pettioner's witnesses on the issue of the manner in which the interviews were conducted."

[It was also true of the Nickel case that 'one of the subject children had a complex set of psychiatric problems.']

U17 [6] "Herbert, Grams, and Goranson (1987) state that video- or audiotape recordings are essential for adequate knowledge of what went on in an interview. Wthout them, the conclusions drawn about the interview by the interviewer are likely to contain significant factual distortions. They report that without video or audio taping, interviewers reflect their bias by giving inaccurate and mistaken reports about the interview.

"In interviews, the bias of the interviewer can affect both the selection of the information to be recorded [i.e., written down] and the substance of the information itself."

Throughout this site, for purposes of brevity sources are abbreviated ('A1' etc.). However the titles of some are so good, they bear repeating outside of the 'Bibliography' itself. The following is one of them:

"Why Judges Must Insist on Electronically-Preserved Recordings of Child Interviews"

C31 [11] "[S]erious errors occur in recall of conversations and interviews with children. These errors are made by interviewers with various levels of training and also various levels of familiarity with the child. The errors include the omission of details (inserting facts that were not stated), as well as misreporting the degree to which the child's answers were spontaneous or the result of suggestive techniques."

M2 [87] "Some investigators choose to make notes following the interview. Although this procedure may be appropriate for clinical purposes, it is inappropriate for forensic investigations. Even if the investigator sits down immediately after the interview to make notes, the record is likely to be biased by omissions. Any personal biases of the interviewer may result in selective recording and the record is likely to have inadequate details to allow the investigator to recall why a particular question was asked at a particular time.

"If notes are taken during the interview, the entire interview shoud be recorded, not just selective parts, because selective recording may bias the types of information provided by the child.

"Some investigators make audiotapes of the interview and thus preserve an accurate record of all verbal exchanges. Like written notes, audiotapes do not allow others to determine how the interviewer's [88] gestures and other nonverbal interactions may have impacted the interview process."

M17 [201] "Summaries of unrecorded interviews are subject to any number lf distractions. It is a well documented fact in the psycholinguistic literature that when asked to recall conversations, most adults may recall the gist, but they cannot recall the exact words used, nor the sequences of interactions between speakers...[I]nterview information of the most critical kind is lost when a verbatim recording is not made...Of course, the number of questions, their wording, their nature, and the tone of the interviewer questions are precisely what is needed to evaluate the effect of the interviewers' questions on the children. This linguistic information rapidly fades from memory, minutes after the interactions have occurred. Futhermore, in contrast with other types of offenses, the only source of evidence in child sexual abuse cases is tyically the accusation of the child."

[207] "There simply is no substitute for a videotaped record of a forensic interview with a child."

C2 [243] "[W]ritten summaries are no substitute for electronic recordings of these interviews, particularly in legal proceedings. Written summaries of unrecorded interiews are subject to a number of distortions, especially if the interviewer is questioning a number of children and parents daily...If the investigator has a bias that the child was sexually abused, this can color his interpretations of what the child said or did; it is this interpretation that can appear in the summary in lieu of a factual account of what transpired."

[244] "The investigator cannot talk to the child and at the same time take verbatim notes of everything the child says. When later reconstructing these reports from notes or memory, the investigator may use his own words or, at times, intrude details from other interviews that had been conducted around the same time."

[247] "There are other reasons for requiring electronically preserved interviews with the children. These have to do with the fact that it is crucial not only to have a record of the 'gist' of the conversations (which we have reason to believe were not accurately preserved in many instances), but to have a verbatim record of the adult's words and the child's words...Written reports that contain statements such as 'The child said that Mr. Bob told them secrets' are meaningless. We need to know whether this was a spontaneous remark, whether this was prompted by an open-ended question...or whether this was merely the interviewer's memory of the gist of a conversation in which the interviewer asked, 'Did Mr. Bob tell you to keep secrets?' and the child may have reluctantly replied, 'Yes.' Some summaries of the interviews are written in such a way as to make one believe that children made spontaneous and detailed statements about sexual abuse. However, in the few instances where we have transcripts of some other interviews, it is clear that the child only responded 'yes' or 'no' to a barrage of leading questions.

"Although some interviewers may defend the accuracy of their own reports by stating that they remembered the exact wording of their questions [248] and of the child'sanswers, there is a substantial literature to document the fact that when adults are asked to recall conversations or passages that they have just heard, their verbatim memory fades within seconds...[I]n a long interview, it is not possible to remember the forms of all of the questions and answers, their context and antecedents, and the emotional tone of the participants."

W25 [61] "In [some] cases, psychologists have actually falsified case notes and reports...Following accusations by a disturbed neighbor child, a four-year-old girl was questioned repeatedly...[H]er psychologist wrote in her case notes that her mother had told her to say that 'Daddy didn't do it.' The psychologist later testfied to this in court...Two years later, we reviewed the audiotape of the session. The psychologist asked the child sixteen different times whether it was true that 'Mommy told her to say that Daddy didn't do it.' The child repeatedly denied this and never acknowledged this claim. She did not say anyting remotely resembling what the psychologist claimed.

"A psychologist wrote in a report that in...a supervised visit with the father, the child had confronted the father and said, 'Yes, you hurt me because you did it!' This report and the conclusion that the father had abused his daughrer were admitted into evidence in several hearings. Two years later...the father, his lawyer, and we viewed the videotapes in the presence of the psychologist and her lawyer. The child did not say it. It simply was not there.

"White (1986) also stated that she has [62] found similar discrepancies between what is reported and what is found in recordings of the sessions when they are available.

"We have observed where the case notes, reports, and testimony do not reflect what actually went on in the session when we are able to examine the audiotape or videotape.

"Interviews which are not videotaped or adequately documented are more likely to contain errors and falsifications about what actually transpired."

[63] "Audio- or videotapes frequently disclose that adults lie to children in order to obtain responses."

L13 [699] "The accuracy of 'verbatim' contemporaneous notes was assessed in the present [700] study by comparing them with transcribed audio recordings of the same interviews."

[703] "[T]he investigators failed to report in their notes many of the details provided by the children and many of the utterances used to elicit them. They also misrepresented the structure of the interviews. Specifically, first of all, the investigators' notes recorded significantly fewer informative details provided by the children than the audio recordings did...The notes reported a total of 3,993 informative details...compared with 5,301 details in the audio recordings...Thus, 1,308 (25%) of the substantive (i.e., forensically relevant) details provided by the children were not represented in the investigators' notes.

"Second, the investigators' notes reflected a total of 806 substantive interviewer utterances...whereas the audio recordings of the same interviews included 1,889 utterances...leaving 103 utrerances (57.3%) not accounted for in the investigators' supposedly verbatim notes."

[704] "The analyses revealed that the investigators' notes misrepresented both the information elicited from the young interciewees and the way the information was elicited...Such errors appear very likely to distort judgments abut the extent of interviewer contamination, the accuracy of children's testimony, the validity of childrens allegations, the severity of alleged abuse, and perhaps even children's credibility."

[705] "[I]nterviewers cannot be expected to provide complete and accurate accounts of their interiviews without electronic assistance. Even when they made conemporaneous verbatim notes, these investigators tended to understate their role in eliciting the information and to ignore many of the details, including central details, reported...The American Prosecutors' Research Institute actively discourages the electronic recording of investigative interviews...The results reported here make clear that electronic recording may constitute the only means of memorializing the structure and content of investigative interviews accurately. Indeed, even audio recordings, though manifestly superior to verbatim contemporaneous notes, as demonstrated in this study, may ignore some nonverbal gestures and cues, rendering video recordings superior."

M5 [83] "[J]udges who [84] evaluate the admissibility of children's out-of-court statements have long considered videotaping a factor in evaluating reliability. Moreover, an increasing number of judges favor videotaping, at least under some circumstances...Academic discussion of the advantages and disadvantages of videotaping will become less important as judges send the signal that videotaping is desirable."

M3 [382] "To obtain real-world professional assessment of the utility of videotaping, the California Child Victim Witness Judicial Advisory Committee recommended in 1998 that pilot programs should be created to evaluate the effectiveness of a multidisciplinary team approach to recorded pretrial interviews with potential child witnesses."

C2 [249] "[S]urvey data from a pilot project on the taping of investigative interviews suggest that the benefits of videotaping far outweigh the drawbacks (Child Victim Witness Investigative Pilot Projects, 1994). Most of the professionals (law enforcement agents, district attorneys, and social service workers) were enthusiastic about the implementation of videotaping; these professionals expressed the wish to have these procedures continue in the future."

M5 [85] [from FN390:] "When it comes to videotaping interviews in the future, the professional group that most strongly favors routine videotaping is the Deputy [i.e., Assistant] District Attorneys."

[from FN383:] "A Deputy District Attorney writes that videotaping 'is the most effective way of preserving a victim's initial comprehensive statement regarding abuse. The emotional response during this interview can never be duplicated.'...One of the child interiew specialists put it bluntly when she wrote that videotapes are 'insurance for interiewers.' The same interview specialist adds that 'When there is no videotape, the interview (which is the foundation of the case) is left wide open for criticism...'" *

M3 [380] "[E]ven without...an enabling statute, some state prosecutors are producing videotapes and seeking to introduce them at trial."

[383] "The [California Child Victim Witness Judicial Advisory] Committee's recommendations were adopted, and the pilot programs were established...Each interview was videotaped and the audiotape was used, when possible, in lieu of additional interviews. The purpose of the pilot program evaluation was (among other objectives) to discover the reactions of prosecutors, defense counsel, police, and social services agency personnel to the videotaping protocols that were developed. Overall, '[A] clear picture emerges: Professionals are enthusiastic about videotaping.'"

[386] "[M]ost professionals involved in the pilots believe videotaping should be routine...[T]he specter of injustice that is feared by opponents of videotaping did not materialize. What emerged instead is a clear consensus that videotaping helps lower trauma for children and contributes to the search for truth."

M17 [190] "Prosecutorial resistance to videotaping is surely not surprising and, indeed, it is reminiscent of resistance to [pre-trial] discovery [of exculpatory, or 'Brady' evidence] a half-century ago...Then, as now, the arguments conjure up the specter of abusive defense practices, whine about the unfairness of the unilateral protections of the accused in the American constitutional system, and argue that the success of videotaping in other countries is idiosyncratic and not transferable here."

M3 [372] "Prosecutors, wary of defense challenges to improper interviewing, might well be tempted to instruct interviewers not to record pretrial sessions with a potential child witness. This is not as far-fetched or cynical a prediction as it may seem. In the infamous Jordan (Scott County), Minnesota, child sex abuse investigation, one 9-year-old girl was interewed by law enforcement authorities approximately 20 times, although only four written reports were ever found and others were destroyed. In a Tennessee prosecution, investigative interviewers were instructed by a prosecutor to 'prepare narratives to tape recorded interviews with the child victims and then reuse the tapes of these children so that the tapes will not be available for discovery by the defense.'

"Ironically, the Michaels [New Jersey] decision may well induce [373] prosecutors to take the path of least resistance: to avoid making any record of pretrial interactions."

[However, at least in New Jersey, the latter is no longer an option:]

S43 "Interviews of young victims of sexual assault and custodial interrogations of suspects must now be recorded."

M17 [179] "In a Memphis, Tennessee day-care investigation, police investigators made videotapes of their interviews with young alleged victims. As might be expected, some of the children gave inconsistent accounts. Quite unexpected, even shocking, is the fact that, after reviewing the interviews, an assistant district attorney instructed the investigators to destroy the tapes so that they would not be available for discovery [by the defense]. No verbatim transcripts were made, and the tapes were reused for other investigations. The Tennessee Supreme Court held that such behavior constitutes willful prosecutorial misconduct in violation of Brady v. Maryland..."

G2 [142] "One of the most valuable measures that has been introduced in the courtroom is the use of videotaped disclosure interviews of children... All disclosure interviews, not just the final one, should be videotaped and made available to the court. The defendant should have the opportunity to have this material examined by an independent expert to assess the likelihood of the interview process having created or distorted the child's story." [Emphasis original.]

F2 [254] "It is questionable whether the court may force the interviewing agencies to conform to a policy of documentation. If it can be done, it would be the court's refusal to admit this type of testimony without proper documentation."

[Since 1987, when the above was written, several states and jurisdictions have in fact instituted videotaping requirements.]

"This might be accomplished through a number of legal frameworks. The court might adopt an exclusionary rule similar to that adopted in some states regarding hypnotically refreshed testimony, refusing admission without adherence to predetermined standards, including documentation, during the interviewing process.

"In some states, the court might...use [Federal] Rule [of Evidence] 602 to force documentation as the only means sufficient to meet the state's burden for proving actual knowledge."

M17 [180] "Any prosecutor concerned with cobntrolling the flow of evidence would quickly appreciate the lesson of this Tennessee case [where the prosecutor ordered the tapes to be reused so they wouldn't be available for defense discovery]: Destruction of a record is verboten, but if no record is ever made, there is nothing to disclose. Can the Constitution be so easily sidestepped? Is there a constitutional duty cast upon a prosecutor to preserve evidence, that is, to videotape a forensic interview of a child?"

[203] "Like a lineup [of suspects], the forensic interview of a child is instigated, organized, and orchestrated by the state for use at trial. There are undeniable parallels between the state's role in constructing a lineup and conducting a forensic interview with a child victim. Furthermore, the potential unreliability of investigative interviewing is clearly analogous to the notorious unreliability of eyewitness identificaton which the [U.S. Supreme] Court acknowledged in Wade. As the Wade court observed, '[a] major factor contributing to the high incidence of miscarriage of justice from mistaken identification has been the degree of suggestion inherent' in the encounter. Suggestion in constructing a lineup or showup can be created 'intentionally or unintentionally in many subtle ways.' Identification is a critical issue in any prosecution and, 'in practice, the issue of identity [and the elements of the crime] may (in the absence of other relevant evidence) for all practical purposes be determined [205] there and then, before the trial.' As with constructing lineups, there are possibilties for skewing the reliability of the child's account during an investigative interview. Even if most investigators do not intentionally subvert the accuracy of a child's memories, obtaining detailed and reliable ibformation from a child is a much more delicate task, with a higher risk of contamination, than setting up an identification lineup.

"And, finally, as the Court underscored in Wade, replication of the lineup evidence may be impossible: '[T]he accused's inability effectively to reconstruct at trial any unfairness that occurred at the lineup may deprive him of his only oppiortunity meaningfully to attack the credibility of the witness's courtroom identification.'

"To redress the grave potential for the production of unreliable and undiscoverable identification evidence from a lineup, the Wade court required that counsel be present for any confrontation involving a formally accused defendant. If counsel were not provided, the lineup idetification evidence could not be used by the state to convict the accused."

[205] "In sum, a forensic interview of a child is so fraught with potential for distortion by the interviewer, both as to the accusation of a crime and to the identification of the perpetrator, that there is a substantial risk of irredemiable mistake and of an unfair trial if the interview is not recorded and made avalabke to the defense in advance of trial."

G2 [140] "All interviews should be videotaped and the alleged offender as well as non-accused caregivers should have access to the tapes."

M3 [from FN42:] "Without a statute, the closest any state appellate court has come [as of 1995] to requiring videotapes of child victim interviews is the Supreme Court of Florida. Though stopping short of mandating videotaping as a command of due process, the court observed in dictum ** : 'Experts generally agree that contacts between a child and an expert evaluating the child for sexual abuse should be videotaped to ensure that the expert did not lead the child during the evaluation. . .In rendering this decision, we can only hope that in the future greater care will be taken to properly preserve testimony in this type of case and that judges will carefully adhere to the trustworthiness and reliability requirements set forth in [our statutes].'" *** [379] "Clear authorization for pretrial videotaping (and the use of qualifying videotape at trial) [380] now [i.e., as of mid-1995] exists in 12 states: Arizona, Hawaii, Indiana, Kansas, Kentucky, Louisiana, Minnesota, Missouri, Oklahoma, Texas, and Utah.

"England has now adoped a videotaping statute as well as standard interviewing protocols."

[from FN56:] "[I]n its only opinion acknowledging modern videotaping practices, Idaho v. Wright, the [U.S. Supreme] Court implies some support for the wisdom of precautionary videotaping."

[386] "The Michaels decision should be heralded by professionals concerned about child victims and child witnesses. Its documentation serves as a stern reminder of the costs of slipshod interviewing techniques and overzealous advocacy. It should provide mometum for the implementation of interviewing and videotaping reforms that will improve the quality of child abuse investigations, the reliability of child witness' testimony, and ultimately, the justice of the American criminal trial."

R9 [288] "Although the U.S. Supreme court has not ruled that states must require interviews of child victims or witnesses to be videotaped, some states have developed their own satutes to facilitate implementation of the procedures (McGough, 1995)."

[248] "Another advantage of the use of videotape is that it preserves the evidence of abuse -- it provides a record of both the child's verbal and nonverbal behavor during the interviews and subsequent disclosures. This is particularly important when there are long delays between disclosure and trial."

M3 [385] "[T]he California [Pilot project] experiment yielded little to confirm fears or dissuade public policy planners from implementing videotape procedures. Instead, the Pilot Project confirmed six advantages of videorecording: It can reduce the number of interviews (and interviewers); it provides an incentive for interviewers to use proper techniques; it preserves the child's exact stateents, emotion, and demeanor at the moment of disclosure; it encourages capitulation by the accused, either through a confession or guilty plea; it is useful in assessing the strength of the key witness for the prosecuton and thus facilitates decisons about whether to pursue a prosecution; and by refreshing memory, it aids in preparing the child for testimony at trial."

M17 [182] "As a means for ensuring that the trial will result in a fair and accurate determination of guilt, pretrial videotaping should be required because it enhances the reliability of the child's evidence. Research demonstrates that the accuracy of children's memories declines more quickly over time than that of adults. Videotaping preserves the account while fresh before memories fade and internal and external interferences take place. It minimizes the need for multiple interviews and lessens the possibility of contamination of the child's reminiscences. Of course, a videotape may be a wasted opportunity unless the investigative interview is conducted by a skilled professional. Those indoviduals on the sidelines -- judges, lawyers, and scholars -- should acknowledge that interviewing a child requires a sophisticated set of skills and on-the-spot adaptability. A vdeotaped forensic interview coducred by a well-trained interviewer captures a more coherent and complete account of the child's experience than any elicited by an untrained prosecutor or defense counsel on cross-examination.

"A second benefit, which is of only slightly lesser importance, is the opportunty videotaping provides to enhance the child's credibility. The more relaxed, out-of-court process permits the child to recall her or his experiences in an informal, relatively private setting. Moreover, there is empirical evidence that memory is enhanced when children are interiewed in relaxed surroundings. Videotaping captures [183] the child's memories and enables the child to refresh his or her memory before making a trial appearance."

[184] "[Another] benefit of videotaping is that it enables investigators to become more proficient future interviewers. The record permits review, monitoring, retraining, and enhanced self-awareness. Videotaping produces a better interview: Awareness of monitoring sharpens the interviewer's skills, and review of constructive criticism educates and makes improvement possible. [Also,] videotaping improves the quality of professional pretrial decisions and conserves valuable trial time, providing direct as well as indirect benefits to the criminal justice system. Both the prosecutor's staff and defense counsel can evaluate the child's [185] accusation before deciding whether to go to trial. Videotaping also conserves valuable professional time before trial. Rather then scheduling and conducting independent interviews of the child, counsel, agency staff, and consultants can view the preserved account."

C2 [249] "Children quickly acclimate to recording equipment in the interview room, and forget its presence."

M2 [88] "Because of the need to maintain a comprehensive and accurate record, a growing number of interviews are being videotaped, and in some jurisdictions videotaping is required. Although videotaping may result in some initial clowning or resistance by the child, children do become accustomed to having a video camera present and will settle into the interviewing process. Videotaping provides the most comprehensive record of the interview process."

M3 [383] "The desire to protect a child cannot justify the suppression of information simply because it might somehow detract from the child's credibility. The court is entitled to know all versions of a child's account, including denials or subsequent reetractions, in making its judgment about the reliability of any statement.

"The California Pilot Project Report notes that it found little to support the fear that defense attorneys received 'too much ammunition' to attack the child. The professionals surveyed believed that fact finders [i.e., jury members or bench trial judges] were fully capable of understabding minor discrepancies and confusion in a child's account and that when interviews are conducted competently, there is nothing to hide."

[384] "The Pilot Program found that once the interview was underway, the taping did not effect the children's willingness to respond."

V2 [1388] "[O]f the thirty-one St. Mary County [Michigan] children [in a study publihed in August of 1997], 83% found that videotaping the initial interview was either helpful to them or had no effect on them."

M17 [183] "[Another] benefit is that videotaping reduces the stress that the legal system might otherwise extract from a child. This stress has been memorably termed the 'secondary abuse' of children by the criminal justice system. It minimizes the number of times the child will have to retell the account and dampens the child's anxieties that reinterviewing means disbelief. Videotaping can even reduce or eliminate altogether the stress of direct or cross-examination. Because videotaping eases the child's stress, parents will be more willing to cooperarte with the prosecution in supporting the need for the child to serve as a witness."

[208] "Doubts about the reliability of a child's accusation can ultimately destroy confidence in any verdict and in the fundamental fairness of the trial. Consequently, whatever justification may have once existed for ignoring the special needs and fragility of child witnesses, interviewing them like adult witnesses is no longer 'good enough for government work.' If legislatures fail to impose a statutory requirement for videotaping of forensic interiews of children, courts should acknowledge the constitutional duty of the government to preserve that critical evidence."

M3 [380] "Other countries of the world have embraced recording of investigative interviews with children. In Denmark and Sweden, the precautionary audiotapng of children's interviews has been standard practice for more than 20 years [i.e., since at least the early 1970s].

"Furthermore, England has now adopted a videotaping statute as well as standard interviewing protocols."

L13 [705] "Recognizing the superiority of electronic recordings, both Israel and the United Kingdom have required that forensic interviews be electronically recorded for about a decade [i.e., since approximately 1990], and these policies have been viewed favorably by law enforcement and child advocates."

M17 [181] "Proposals calling for the videotaping of investigative interviews of child abuse victims are no longer novel and are barely innovative. In Scandinavia, videotaping has been the norm for the past forty years."

[190] "The United States has not followed the path of other countries in either standardizing interviewing protocols or universally enacting startutes authorizing and regulating child witness videotaping. We have so far lacked the political will to implement reforms, even though public attitudes about the value of videotaped records have clearly changed, thanks to the Rodney King beating, the Central Park melee after the National Puerto Rican Day Parade, and instant replay in sports."

S35 [457] "[I]nvestigators who fail to follow best practice procedures are least likely to document their investigations, just as investigators who do not record their work are least inclined to adhere to meticulous investigative pprocedures."

N7 [23] "[P]articipants [at the National Summit on Wrongful Convictions] urged law enforcement leaders across the country to...identify statewide protocols for...recording victim, witness, and suspect interviews..."

R7 [897] "[T]here should be complete recording of every minute of every contact with suspects, including arrestees."

N4 [108] "Of course, other benefits will flow from a policy of electronic recording. Electronic recording ensures the integrity of the process by accurately recording the entire interrogation. Recording should therefore help resolve disputes regarding alleged statements. Recording should reduce later false denials that incriminating statements were actually made. As a matter of judicial economy, recording would likely reduce the time necessary to resolve suppression issues. With an accurate record of the interrogation, courts should be better equipped to [109] determine whether constitutional or other procedural protections were honored. Recording is also likely to discourage the police from treating suspects inappropriately and from using interrogation methods likely to lead to untrustworthy confessions. On the other hand, recording will provide strong evidence to counter false complaints of physical or psychological abuse."

R11 [from Abstract:] "Drawing on a sample of 798 Ohio criminal justice professionals (police, prosecutors, defense attorneys, and judges), the authors examine respondents' perceptions regarding the frequency of system errors...and wrongful felony conviction."

[463] "[Some] suggestions revolved around the need to videotape all police interrogations and confessions. One defense attorney noted,

'Supposed "confessions" are often summaries prepared by the police and signed by an undereducated, unsophisiticated client who is assured of leniency for cooperating and giving a statement. In this day and age, all statements should be videotaped. When police video or audio an interview, they frequently do a "run-through" ahead of time. What is not on the tape is the 3 hours of interviews where the accused is told he "will fry" if he doesn't confess or some other such nonsense.'

"A judge remarked, 'Require the video-taping of a defendant from the moment police contact begins, not just 30 seconds of "confession".'"

S24 [314] "Miranda [i.e., 'You have the right to remain silent...'] provides little aid in figuring out how police and suspects interact during interrogation. Taping is one obvious solution to that problem. Taping has other advantages as well. It can provide proof against false accusations aimed at the pilice, professionalize the interrogation process, and preserve the details of statements that might come in handy later, all of which has been shown to increase guilty pleas."

N6 [1336] "Electronically recording interrogations has several benefits. Frst and foremost, a full recording provides an accurate, objective account of the process that led to the incriminating statements. Furthermore, electronic recording may discourage interrogating officers from using impermissibly coercive tactics. Recording interrogations does not only benefit suspects. Cameras may assist law enforcement officers in obtaining voluntary confessions and protect them from allegations of abuse. The practice allows interrogators to focus on suspects and the content of their statements, rather than note-taking, and enabes investigators to make a detailed later review of statements for information they may have not recognized as important during the initial questioning. Other benefits to the police include increased accountability and public trust in law enforcement, and reduced time spent having to defend interrogation practices in court. Importantly, the electronic recording of interrogations has not proven to be prohibitively costly, and does not appear to decrease the wllingness of suspects to speak with interrogators."

F9 [161] "Electronic recording of interrogatons...protects the innocent by deterring overbearing and unlawful police coercion and by making a record for fact-finders when police push too hard...At the same time, electronic recording aids fact-finders by providing a clear record to resolve otherwise insoluble swearing contests between interrogators and the [162] interrogated about what happened in the interrogation room and what the suspect said and meant by the responses.

"Electronic recording also serves the needs of law enforcement in multiple ways. It protects police from spurious claims of abuse or misconduct during interrogations. It advances crime control by increasing the efficiency with which the system convicts the guilty. For example, when a person is captured on tape voluntarily and without coercion confessing to a crime, suppression motions and trials disappear. With an unassailable confession on the tape, the defendant can usually do little but plead guilty. And when cases do go to trial, electronic recording gives prosecutors the most powerful evidence they could hope for.

"Even crime control critics of Miranda, like Paul [163] Cassell, advocate electronic recording as a better alternative to Miranda. After considering the experiences of jurisdictions that record, Cassell concludes 'that such a requirement would not significantly harm police efforts to obtain confessions' and that tape recording in the police station has proved to be a strikingly successful innovation providing better safeguards for the suspect and police officer alike...A clearer merger of crime control and due process values is hard to imagine. Recording is an area where the Innocence Movement has shown that reforming an administrative investigative process can have the best potential for serving defendants' due process interests while also advancing crime control goals."

M23 [from FN58:] "('Virtually every officer enthusiastically favored the practice, citing benefits such as being able to focus on suspects rather than note-taking, observing inconsistencies in statements and evasive contact upon reviewing the recordings, obtaining more guilty pleas and greater prosecuton bargaining power, and the ready acceptance of recordings by judges and juries).'"

S60 [1127] "According to Alan Harris, a veteran prosecutor in Minnesota, it was 'the best thing we've ever had rammed down our throats.' He was referring to a practice that the Minnesota Supreme Court imposed on the state's police officers more than a decade ago [i.e., before ca. 1995] -- the electronic recording of custodial interrogations from the time that the Miranda warnings were given until the end of the interviews.

"Harris is hardly alone in his opinion. In the past few years, the many benefits of complete audio or video recording of custodial interviews have become increasingly apparent to all parties. For suspects, recordings expose abusive tactics and falsehoods about confessions. For law enforcement officials, recordings spare them from defending unfair charges [1128] of using heavy-handed methods or misstating what occurred. Furthermore, prosecutors and defense lawyers no longer engage in courtroom disputes as to what took place: the interviews may contain exculpatory statements favorable to the defense, or admissions which strengthen the prosecution's case, but in either event, the record is clear and conclusive. Trial judges and reviewing courts no longer have to evaluate conflicting versions of what happened. Unlike the customary interview during which the police make handwritten notes and later prepare a typewritten report, electronic recordings contain a permanent record of the event, leaving no room for dispute as to what officers and suspects said and did."

"We now know of more than 300 police and sheriff's departments in forty-three states -- plus all departments in Alaska and Minnesota -- that record full custodial interviews in various kinds of felony investigations, all of whom enthusiastically support this practice."

H14 "The Best Practices Committee [of the New York Sate Defenders Association] then moved on to review whether to record interrogations of suspects in custody. We learned tha over the last two decades [i.e., since ca. 1992], video recording of investigations was adopted by a few district attorneys and police departments in various parts of New York State. In the past seven years, the practice was further encouraged by funding from the state DCJS [Department of Criminal Justice Services] and the New York State Bar Association. When the entire police interrigation is recorded, no words will be forgotten, no nuances will be lost, and the conduct of the questioner and the questioned can be fully evaluated. As we learned more, the committee quickly agreed that video recording custodial interrogations benefited the accused as well as the police, and should be strongly promoted.

"On December 14, 2010, at a press conference led by Derek Champagne, district attorney of Franklin County and the 2010 president of the DAASNY [District Attorneys Association of New York], the state's district attorneys and the state's police agencies endorsed the Best Practices Committee protocols...and committed to moving forward with video recording of interrogations."

N6 [1336] "Various organizations also have endorsed the practice of recording interrogations. The ABA [American Bar Association] has recommended that law [1337] enforcement agencies should videotape entire custodial interrigations...The Justice Project also advocates that interrogations be video-recorded in their entirety...Finally, recordings of statements are to be preserved until all post-conviction and habeas corpus proceedings have become final. Similar recommendations have been made by the Innocence Project."

N7 [14] "[National] Summit [on Wrongful Convictions] recommendations, and standing IACP [International Association of Chiefs of Police] model policies, support audio and/or video recording of all major crime interviews with suspects. Recording protects everyone in the room. While it can be argued that recorded evidence opens a door to critique, it also raises the level of transparency of the department to aid in the cultural shift across the justice system focusing on rightful arrests and rightful convictions."

S17 [675] "The Model [Penal Code] Act...will require videotaping of all interviews or interrogations in their entirety of potential or established suspects...Furthermore, the video recording may prevent the most coercive methods from even being used. Equally important, because anything done during the interrogations will be accessible to lawyers and judges, the videotape will ensure that the voluntariness and validity of the interrogation and any resulting confession can be assessed.

"Given the reliablity test of admissibility and the importance of the videotapes in evaluating the reliability, the absence, for any reason, of a videotape creates extreme difficulties for the judge called upon to evaluate admissibility. Consequently, for interrogations that take place in a police station, the absence of a substantially complete videotape will render that confession inadmissible."

[676] "Since enforcement of any set of specific rules regarding the humane treatment of suspects will be difficult or impossible, and because our concern is coercion of innocent suspects, members of the seminar believe that prevention of the worst coercive treatment will best be accomplished by the requirement of videotaping the entire interrogation. At the same time, requiring videotaped interrogations will also protect the police, since a videotape can provide evidence to defend against claims of brutality and other unlawful conduct."

N4 [108] "Custodial interrogations of all felony-level crime suspects should be electronically recorded in their entirety. By far the most common reform recommended by those who study the phenomenon of false confessions is the electronic recording of custodial interrogations in their entirety. Indeed, this very recommendation was adopted by the New York State Bar Associaton's House of Delegates at its meeting in June 2004. The House, the policy-making arm of the Association, adopted a resolution at that time providing:

'Resolved, that the New York State Bar Association urges all law enforcement agencies to videotape the entirety of custodial interrogations of crime suspects in the most serious cases at police precincts, courthouses, detention centers, or other buidings where suspects are held for question, and be it

'Further resolved, that the New York State Bar Association urges the New York State Legislature to enact laws requiring the videotaping of the entirety of custodial interrogations of crime suspects in the most serious cases at police precincts, detention centers, or other buildings where suspects are held for questioning, or, where videotaping is impractical, to require the audio taping of the entirety of such custodial interrogations, and to provide appropriate remedies for non-compliance, and to appropriate funds to implement this legislation.'

"Proponents of this reform assert that recording the entire interrogation provides the best means by which a finder of fact can evauate whether the techniques employed produce a reliable statement from the accused."

N4 [13] [One recommendation from the Report of the New York State Task Force on Wrongful Convictions:]

"Custodial Interrogatons of all Felony-Level Crime Suspects Should Be Electronically Recorded In Their Entirety."

P24 [2] "Legislation passed as part of the state budget...requires police to video record custodial interrogations in some types of cases.

"Starting April 1, 2018, law enforcement must record custodial interrogations at detention facilities, including police stations, holding facilities, and prosecutor's offices, that 'involve' class A-1 (non-drug) felonies, Penal Law 130.95 and 130.96 felonies, and felonies defined in Penal Law Articles 125 and 130 that are defined as class B violent felony offenses in Penal Law 70.02...However, a confession or admission is not subject to suppression based solely upon the failure to record the interrogation."

[Well, that last part pretty much makes this new law meaningless ; i.e., if confessions are not going to be thrown out because they were not videotaped, the police have little incentive to videotape them. And even this milquetoast law does not require that all felony-level interrogations be videotaped, which is what the New York State Task Force on Wrongful Convictions recommended. (See above.)]

S24 [314] "[P]romises, cajolery and deception...can dehumanize everyone involved in the interrogation, whether they are guilty, innocent, or the police themselves."

[216] "[A]n exact accounting of interrogation events -- from the way the warnings are given to the precise nature of any threats, promises, and deceptions that occur -- is needed to determine whether statements are voluntary in the totality of the circumstances...[T]his kind of record is very difficult to generate solely from testimony by the police and the suspect, even if we assume that they try to be honest.

"The most direct support for the conclusion that voluntariness can only be assessed through a recorded account of the interrogation is the fact that we insist on transcripts in the analogous civil context. Prolonged face-to-face questioning of one party by the opposing party that is conducted with the goal of producing evidence for trial virtually always takes place at a deposition, and a deposition that is not recorded in some fashion is always inadmissible as evidence. With this truism about [317] interrogation in civil cases in mind, it is stunning that we do not require verbatim transcripts of criminal interrogations, where the stakes are so much higher, access to information about psychological pressures so much more important, and legal representation (of either party) so much less likely."

[The civil requirement for at least transcripts , whereas there is no such universal requirement in criminal law, is similar to the bizarre phenomenon of civil discovery being far broader than criminal discovery. (See Brady section of this site.)]

"The due process argument for taping is that it is the only way the goovernment can meet its obligation to preserve evidence that is exculpatory."

[318] "While many interrogations undoubtedly are conducted properly, we cannot be sure that conclusion is warranted with respect to a particular interrogation until a court says so. And given the assumptions made above -- which together hold that verbatim records are necessary for voluntariness assessments -- a court cannot say so until it has viewed the tape. Accordingly, failing to tape a confession is worse than destroying forensic evidence that has been tested...At least in the latter situation an objective analysis of the blood, semen or hair has taken place before the evidence is destroyed; when an interrogation is not taped, in contrast, objective voluntariness can never occur. In short, failure to tape an interrogation is failure to preserve evidence which is crucial to determining the outcome of the trial, and when intentional (as it will be if taping is possible) should be considered bad faith. [Emphases original.]

"Absent a tape, courts are forced to rely on the incomplete and biased accounts of the parties, which is an insufficient basis for assessing voluntariness."

[321] "[T]he taping requirement should be sacrosanct because government should want to know precisely what happens in the interrogation room as a means of protecting the accuracy and fairness of the criminal process."

[314] "[M]ost police departments still [as of mid-2003] do not tape interrogations. Those that do use it sporadically and at their discretion, and very often tape only the end result of the interview process -- the admission. Even the FBI, normally the epitome of professionalism, has refused to adopt a taping requirement."

[315] "Given the benefits of recording, it is hard to shake the feeling that this reticence about taping stems from the desire to hide something from the courts."

"[A]ll questioning in the stationhouse [should] take place on tape (as is mandated by English law) and...only statements that are made on tape [should be] admissible (which is the rule in some Australian jurisdictions)."

N4 [109] "[A] growing number of jurisdictions across the country require the electronic recording of interrogations...[These include] [as of early 2009] Maine, Nevada, New Mexico, North Carolina, Texas, Wisconsin, the District of Columbia, Alaska, Massachusetts, Minnesota, New Hampshire, and New Jersey."

M23 [from FN58:] "See Thomas P. Sullivan et al., 'The Police Experience: Recording Custodial Interrogations, The Champion, Dec. 2004, at 24 (interviewing over 260 police agencies in forty-one states that record custodial interrogation of suspects in felony cases...)"

N6 [1304] "[P]olice interrogations are recorded in more than 600 local and county jurisdictions yet only 19 states have some level of statewide requirement [as of late 2010]."

N4 [109] "[A] growing number of jurisductions across the country require the electronic recording of interrogations. At present [early 2009], 12 states and the District of Columbia require that interrogations be electronically recorded. Eight of those jurisdictions require recording by statute: Illinois, Maine, Nevada, New Mexico, North Carolina, Texas, Wisconsin, and the District of Columbia. Five states require recording by judicial decree: Alaska, Massachusetts, Minnesota, New Hampshire, and New Jersey. These jurisdictions impose different sanctions for noncompliance. Five states impose the penalty of suppression for a willful falure to record (Alaska, Minnesota, and New Hampshire by judicial decree, Illinois and Texas by statute). Three jurisdictions do not impose any penalty (Maine, New Mexico, and the District of Columbia). Five states require recording for all crimes (Alaska, Massachusetts, Minnesota, New Hampshire, and Texas)."

"The growing trend in New York State is one of voluntarily implementing recording programs. New York does not currently require electronic recording by statute, but 26 of the [110] 62 counties in the state have voluntarily adopted some form of recording. The New York State Bar Association currently is monitoring pilot electronic recording programs in four counties (Broome, Greene, Schenectady and Westchester) through a grant of state-appropriated funding."

W26 [537] "[A]ttempts to recreate events that occurred during an incommunicado interrogation through memory and testimony result in 'swearing contests' between police [538] interrogators and suspects. Traditionally, police were the invariable winners in these swearing contests. This fact is somewhat surprising particularly in light of the documented cases of physical torture and abuse, psychological torture and abuse, and police perjury.

"Most police departments in the United States, most prosecutors advising their local law enforcement officials, and most courts deciding pre-trial questions of admissibility, persist in the antiquated practice of pretrial swearing contests...The simple straightforward precaution of videotaping the interrogation sessions is steadfastly rejected by police and courts in most American jurisdictions. This policy is [539] foolish and counterproductive."

[540] "A large body of American law has emerged concerning the types of conduct that may render a confession admissible or inadmissible...[541] During the resulting interrogation certain types of conduct, such as physical violence, threats, and promises of leniency, are impermissible. However, other types of conduct, including misrepresentation about available evidence and several types of promises, are permissible.

"But the entire set of rules (governing the relationship berween a suspect and the state regarding confessions) is built on a house of cards. Its frailty lies in the assumption that the public has the ability to know, with historical accuracy and precision, what transpired during incommunicado police interrogation."

[552] "What are they trying to hide? There must be something they do not want us to know...It may be that the judge's quest to determine 'the facts' of police interrogation is being deliberately frustrated by false police testimony concerning precisely what occurred in that incommunicado interrogation session. Something of this sort seems to be the only practical reason for not routinely videotaping the interrogation process."

[553] "Professor Barry Feld, former prosecutor and now law professor at the University of Minnesota, commenting on his state's mandatory videotape requirement, said:

'These types of court rules work to the benefit of both the prosecution and the defense by providing an obective record of exactly what happened. And to the extent that criminal justice process is supposed to determine the truth, it's hard to see how anybody could be opposed to having an objective record of the entire process.'" *****

[555] "Monroe Freedman, a professor at Hofstra University Law School, said...'I think that jurors are quite properly skeptical if confessions are introduced and there isn't videotaped evidence,' he said. 'It's not as if it's some kind of new, novel device." @

S10 [1159] "[W]e are convinced that recording, in such circumstances [interrogations of suspects], is a reasonable and necessary safeguard, essential to the adequate protection of the accused's right to counsel, his right against self-incrimination [1160] and, ultimately, his right to a fair trial."

[1161] "Although there are undoubtedly cases where the testimony on one side or the other is intentionally false, dishonesty is not our main concern. Human memory is often faulty -- people forget specific facts, or reconstruct and interpret past events differently.

"'It is not because a police officer is more dishonest than the rest of us that we. . .demand an objective recordation of the critical events. Rather, it is because we are entitled to assume that he is no less human -- no less inclined to reconstruct and interpret past events in a light most favorable to himself -- that we should not permit him to be a "judge of his own cause."' (Kamisar...at 243-44.)

"In the absence of an accurate record, the accused may suffer infringement upon his right to remain silent and to have counsel present during the interrogation. Also, his right to a fair trial may be violated, if an illegally obtained, and possibly false, confession is subsequently admitted.

"The recording of custodial interrogations is not, however, a measure intended to protect only the accused; a recording also protects the public's interest in honest and effective law enforcement, and the individual interests of those police officers wrongfully accused of improper tactics. A recording, in many cases, will aid law enforcement efforts, by confirming the content and the voluntariness of a confession, when a defendant changes his testimony or claims falsely that his constitutional rights were violated. In any case, a recording will help trial and appellate courts to ascertain the truth. [from FN16:] As the Colorado Supreme Court has stated: 'The trial of a criminal case is not a game of fox and hounds in which the state attempts to outwit and trap a quarry. It is, instead, a sober search for truth, in which not only the resources of the defendant, but those readily available to the state must be put to work in aid of that search.'" @@

"The concept of due process is not static; among other things, it must change to keep pace with new technological developments...[1162] The use of audio and video tape is...commonplace in today's society. The police already make use of recording devices in circusmtances when it is to their advantage to do so. Examples would be the routine video recording of suspect behavior in drunken driving cases and, as was done in these cases, the recording of formal confessions. Furthermore, media reports indicate that many Alaska police officers have purchased their own recorders, carry them while on duty and regularly record conversations with suspects or witnesses, in order to protect themselves against false accusations. When a portable recorder has not been available, some officers have even used their patrol car radio to record conversations through police dispatch center.

"The only real reason advanced by police for their frequent failure to electronically record an entire interrogation is their claim that recordings tend to have a 'chilling effect' on a suspect's willingness to talk. Given the fact that an accused has a constitutional right to remain silent, under both the state and federal constitutions, and that he must be clearly warned of that right prior to any custodial interrigation, this argument is not persuasive. [from FN20:] Also relevant to this argument, perhaps, is the fact that, when the interrogation occurs in a place of detention and the suspect knows or has reason to know that he is speaking to a police officer, there is no constitutional requirement that the suspect be informed that the interview is being recorded..."

[1163] "While other remedies [for failure to record interrogations] may each have their merits, we believe an exclusionary rule [i.e., refusing to admit contents of confessions unless they have been recorded] will best protect the suspects' constitutional rights, provide clear direction to law agencies and lower courts, and preserve the integrity of our justice system."

[1164] "Thus, we conclude that exclusion is the approoriate remedy for an unexcused failure to elecrronically record an interrogation, when such recording is feasible. A general exclusionary rule is the only remedy that provides crystal clarity to law enforcement agencies, preserves judicial integrity, and adequately protects a suspect's constitutional rights. The necessity for [1165] this strong remedy remains, even when we consider society's interests in crime prevention and the apprehension of criminal offenders."

-----

* California Attorney General's Office, Child Victim Witness Investigative Pilot Projects: Research and Evaluation Final Report (1994), at 69-70.

** An opinion voiced by a court that has only incudental bearing on the case in question, and therefore, is not binding.

*** State v. Townsend, 635 So.2d 949, 959-960 (1994).

**** Thomas P. Sullivan et al., "The Police Experience: Recording Custodial Interrogations," The Champion, Dec. 2004, at 24.

***** [FN90:] Maurice Possley & Ray Long, Bill Seeks Statewide Taping of Suspects, Chi. Trib., Feb. 8, 2000, available at 2000 WL 3634325.

@ [FN96:] David Rhode, Juror Faulted Police Work in Murder of a Teacher, available at http://www.texas-justice.com/nytimes/confession990213.htm (last visited March 23, 2001).

@@ Garcia v. District Court, 197 Colo. 38, 589 P.2d 924 (1979).