Eyewitness misidentification and false confessions are leading causes of wrongful convictions. Reforms like blind lineup administration, proper filler selection, and recording interrogations can help reduce wrongful convictions while strengthening cases. Voluntary adoption of best practices has worked in some states, but legislation provides uniformity and a legal remedy to ensure statewide compliance. While upfront costs exist, recording interrogations saves money long-term by improving efficiency and reducing civil lawsuits. Legal remedies have not been a problem in states with recording laws.
2. Eyewitness Misidentification & Wrongful Convictions
Exonerations since 1989
1,913= Number of DNA and non-DNA exonerations in U.S.
347= Number of DNA exonerations in US.
13= Number of DNA + non-DNA exonerations in Iowa
Eyewitness ID Exonerations
71% = Percentage of nation’s 347 DNA exoneration cases
involving eyewitness misidentification.
96= # of mis-ID cases where real perpetrator was later identified.
102= # of additional crimes committed by real perpetrators in
mis-ID cases, including 64 rapes and 17 murders.
3. Eyewitness Misidentification & Wrongful Convictions
Wrongful Convictions involving Mis-ID
Illinois: 55
Wisconsin: 13
Missouri: 12
Iowa Examples of Problematic Eyewitness IDs
“Take Home Test”
Davenport, 2009
“All the Suspect was Missing was His Two Front (Gold) Teeth”
Des Moines 2007
4. Why is Eyewitness Memory Unreliable?
Estimator Variables: Factors at the crime scene
that cannot be controlled.
•Lighting
•Distance
•Presence of a weapon
•Own-race bias
System Variables: Factors that law enforcement
can control such as lineup procedures.
5. Evidence-Based Practices
• National Academy of Sciences
• International Association of Chiefs of Police
• American Bar Association
Endorsed
By:
‘Core Four’ Reforms
1. Blind or Blinded Administration
2. Witness Instructions that Perpetrator May or May Not Be
Present
3. Proper Fillers that Match Witness Description of Perp
4. Witness Confidence Statements
6. Benefits of Reform
For Law Enforcement
• Fewer filler picks & fewer witnesses “burned for future use.”
• Focuses law enforcement resources on the right person during
investigations.
• Protects officers against defense challenges.
For the Public
• Improved public safety by helping to convict the guilty and
protect the innocent.
• Increases public confidence in the criminal justice system.
• Avoiding civil payouts stemming from wrongful convictions.
7. National Picture
• 3 States
• MA, NJ, OR
State High Courts
• 11States
• CT, CO, GA, MD, NE, NC, OH, TX,
VT, WI, WV
Legislation
• 5 States
• HI, MI, MT, NV, RI
Substantial Voluntary
Compliance
(75% + agencies)
19 States Uniformly Adopted “Core Four” Best Practices
8. • Prescriptive Statute: North Carolina (2007), Connecticut (2011),
Georgia (2014)
• Model Policy Statute: Colorado (2014), Nebraska (2016), Maryland
(2014), Texas (2011), Vermont (2014), West Virginia (2014)
Wisconsin (2006)
• Remedy: Only OH & NC statutes have legal remedies.
• Manson v. Brathwaite: Built-in constitutional protection against
unreliable eyewitness IDs.
9. Elements of Successful
Statewide Voluntary Adoption
Require Written Policies/Development of Model Policy:
Requirement that all agencies have a written policy that
minimally comports with best practices.
Training in best practices for new recruits & veterans.
Tracking Compliance: In the absence of a law, need an entity
that will collect and review agency policies to ensure they are
in compliance with best practices.
Roadmap & Timeline for implementation.
10. Resources Provided by Innocence Project
1. Statewide training sessions.
1. Mailing model policy & implementation tools to agencies.
1. Mailing & assessing compliance surveys.
11. Case Studies on Successful Reform
Montana (2016): Interim Study & Substantial Voluntary
Adoption
Nebraska (2016): Statute & State Model Policy
Colorado (2014): Best Practices Committee for Prosecutors
issued model policy and legislation.
12. Iowa Eyewitness ID Reform
2013 Survey by Dr. Neil McNabb, Buena Vista University
•198 agencies surveyed; 116 responded.
•58% of respondents did not have written eyewitness identification
policies and procedures.
•96% selected fillers based on resemblance to the suspect, not
perpetrator.
•53% indicated that they were aware of an investigation conducted
by their agency where an eyewitness picked an individual who was
not the suspect or perpetrator.
13. Iowa Eyewitness ID Reform: Next Steps
1. Develop state model policy.
2. Distribute model policies and implementation toolkits.
3. Coordinate training sessions.
4. Conduct compliance survey.
14. False Confessions & Wrongful Convictions
•Nationally, 29% of 347 DNA exonerations involved a false confession.
• In Iowa 9 of 13 wrongful convictions involved false confession in
which innocent person implicated himself or someone else.
Terry Harrington & Curtis McGee:
•17-year-olds wrongfully convicted of murdering retired police captain
in Council Bluffs.
•Spent 25 years in prison.
• Conviction based on false confession by a friend during police
interrogation.
•Settled with Council Bluffs for $6.2 million and Pottawattamie County
for $12 million.
15. Benefits of Recording Interrogations
For the Innocent
• Safeguards against wrongful convictions stemming from false
confessions.
• Deters against coercive or illegal interrogation tactics.
• Alerts factfinders to vulnerabilities such as mental illness or
intellectual disabilities.
For Law Enforcement
• Strengthens cases by removing doubt about voluntariness of
statement.
• Reduces motions to suppress confessions/statements and
increases guilty pleas.
• Protects officers against frivolous claims of misconduct.
16. National Landscape
• Court Action: 6 states
• Statute: 15 states + D.C.Mechanism
• All crimes: 3 states.
• Specified Felonies: 12 states.
• All felonies: 5 states
• Homicide only: 1 state
Crime Categories
• Presumed Inadmissibility: 6 states
• Possible inadmissibility/jury instruction: 3 states.
• Jury instruction: 7 states
• Possible withholding of state funds: 1 state
Remedy
21 states + District of Columbia require recording of certain
interrogations. Federal law enforcement agencies have a policy of
recording interrogations for all crimes.
17. Iowa Recording of Interrogations Practices
2006: State v. Hajtic strongly encouraged recording custodial
interrogations.
2007: Iowa Attorney General issues statement that Hajtic should be
interpreted as a mandate.
•Department of Public Safety adopted a general order to record
interrogations for ALL crimes in DPS facilities.
2011: Iowa State Bar Association surveys law enforcement agencies
and receives responses from 205 of 421 agencies.
•All but one agency had access to recording equipment & record
interrogations in some form.
•Nearly 60% do not have written policies.
•38% record at discretion of officer.
18. Why is legislation the most effective option?
Legal remedy is necessary to ensure
compliance. No built-in protection against
unrecorded confessions.
Guidelines are voluntary.
Legislation creates uniformity.
19. Why is legislation the most effective option?
Legal remedy is necessary to ensure
compliance. No built-in protection against
unrecorded confessions.
Guidelines are voluntary.
Legislation creates uniformity.
20. Cost Concerns
The Innocence Project surveyed 100 agencies in MA and WI.
Recording Devices:
• $50 for handheld digital cameras.
• Closed circuit systems $500 or more
• Body cameras.
Storage: 70% use existing computer servers; 60% burn recordings
onto DVDS.
Installation & Maintenance: 71% said equipment was self-installed;
63% reported no maintenance costs.
Transcription: 70% do not transcribe interviews.
Small Agencies: Majority use handheld digital recorders. 22%
reported equipment sharing arrangements with other agencies.
21. Long-Term Savings
• Improved court efficiency with fewer pretrial
motions to suppress statements and confessions, and
more guilty pleas.
• Time savings for officers who no longer need to
review and piece together notes from interviews.
• Reduction in lawsuits stemming from frivolous
claims of officer misconduct during custodial
interviews.
• Protecting taxpayers from civil settlements. For
example, Terry Harrington and Curtis McGee
settlement cost Council Bluffs $6.2 million &
Pottawamie County $12 million.
22. Legal Remedy Concerns
Dupage County State Attorney’s Office (Chicago) &
Vermont Law Enforcement Advisory Board:
• “Prosecutors support the use of videotape. We have all
become accustomed to having videotaped statements.”
• Very rare that interrogations are not recorded in violation
of the statute.
• Law enforcement is able to explain why recording was
not feasible under the law’s exceptions.
• No additional litigation on suppressing unrecorded
statements.
Editor's Notes
Thank you for inviting me here today.
My name is Michelle Feldman and I’m a State Policy Advocate at the Innocence Project, a national organization that works to exonerate the wrongfully convicted and we work with our local partners across the country, including the Iowa Innocence Project, on policies to prevent and address wrongful convictions.
Two of the leading contributing factors to wrongful convictions nationally are eyewitness misidentification and false confessions.
I’m going to discuss how evidence-based practices can mitigate the risk of these factors, how other states have implemented reform, and what can be done here in Iowa.
First, some numbers on wrongful convictions nationally.
According to the National Registry of Exonerations there have been over 1900 wrongful convictions overturned with both DNA and non-DNA evidence since 1989.
There are 347 DNA-based exoneration cases.
Here in Iowa there have been 13 exonerations, all non-DNA.
Eyewitness misidentification is the leading contributing factor in DNA exoneration cases, playing a role in 71% of cases.
Not only does eyewitness misidentification impact the wrongfully convicted, it threatens public safety because the real perpetrator may be free to harm others.
Nationally, real perpetrators in DNA exoneration cases involving misidentification went on to commit and be convicted of 102 additional crimes including 64 rapes and 17 murders.
While none of the Iowa exonerations involved witness misidentification, neighboring states have had many wrongful convictions based on mistaken identifications including 55 in Illinois, 13 in Wisconsin and 12 in Missouri.
I asked Iowa public defenders for examples of problematic eyewitness identifications. Here are two examples I’d like to highlight:
“Take home test”- Davenport detectives investigating the felony theft of a bulldog puppy in 2009 and emailed a “photo lineup” to the victim with two photos and a caption ‘dog napper.’
The people in the two photos were not similar in appearance and the suspect’s photo was a mugshot that included his name and criminal history.
The victim responded that she and her grandson ‘thought’ it was the second picture, but expressed some doubt because the perpetrator had a towel over his head.
The email exchange was not part of the police report.
Later the detective emailed a 6 person photo lineup to the victim which included the two photos that were previously sent. This time the victim said that she was positive that the suspect photo was the perpetrator, even though she had previously expressed doubts.
The positive identification was in the police report.
2. “All the suspect was missing was his two front teeth.”
In Des Moines, a suspect called C.B. was charged with a bank robbery.
The eyewitness attended the preliminary court hearing of the two defendants suspected in the case and afterwards said that her recollections were confirmed and C.B. was the perpetrator wearing a black hat.
However, surveillance video showed the robber wearing the black hat had two gold front teeth and C.B. had no teeth.
The public defender had DNA testing performed on the black hat and it did not match C.B.
Charges against C.B. were dismissed after he had already spent 6 months in jail for a crime he did not commit.
Why do so many eyewitnesses get it wrong? Memory is not like a video that plays back events exactly as they occurred. It is a reconstruction that is impacted by a variety of factors.
Estimator Variables
Memory can be affected by “estimator variables” at the crime scene including lighting, distance, presence of a weapon and cross-racial issues.
There’s a phenomenon called “own-race bias” which is means that people can more easily recognize faces of their own race than of other races.
In 44 percent of DNA exoneration cases involving misidentification, a witness incorrectly identified a person of a different race.
We don’t completely understand causes of own-race bias. It may have to do with people having more familiarity and exposure to faces of their own race, and may involve stereotyping.
System Variables: Factors that can impact eyewitness memory and can be controlled by law enforcement, including the way that lineups are conducted.
In the two Iowa case examples, there was suggestiveness in the police procedures.
In the “Take Home Test” case, the victim was shown a mugshot and criminal history of the suspect. She was also shown the suspect’s photo twice in two lineups, which creates a commitment effect, meaning that the identification may be based on the memory of the previous procedure rather than the memory of the actual event.
Suggestiveness and commitment effect likely also impacted the second example, where the eyewitness incorrectly identified the suspect after seeing him at a court hearing related to the case.
While we cannot control estimator variables that impact memory, law enforcement control system variables.
There are a set of evidence-based procedures that have been proven to reduce the risk of eyewitness misidentification.
At minimum, we recommend the ‘core four’ best practices,
1. Blind or blinded administration of lineups, meaning the person conducting the lineup is unaware of the identity of the suspect, or if that isn’t practical, a “blinded” technique such as the folder shuffle method is used where the suspect and filler photographs are placed in folders, shuffled, and handed to the eyewitness one at a time so the administrator cannot see which one is being viewed at a given time. Blind and blinded administration of the procedure are critical to removing any suggestiveness in the procedure.
2. Instructions to the eyewitness that the perpetrator may or may not be present in the procedure, so he or she doesn’t feel compelled to make an identification.
3. Using fillers that generally match the eyewitness’s description of the perpetrator, rather than matching the description of the suspect and do not make the suspect noticeably stand out.
4. Eliciting an eyewitness confidence statement immediately after an identification is made in his or her own words. This captures the witness’s level of certainty at the time of the procedure, since confidence tends to artificially inflate over time as witnesses deal with investigators, attorneys and media exposure.
These practices have been endorsed by the National Academy of Sciences, the nation’s leading independent scientific entity, the International Association of Chiefs of Police, the American Bar Association and many others.
The National Academy of Sciences issued a report with these recommendations in 2014 that was really a game-changer because it was the first comprehensive study of 30 years of eyewitness ID research, and settled the science behind best practices.
Benefits to Law Enforcement
Fewer filler picks and fewer witnesses “burned” for future use, because once a witness makes a bad ID it calls into doubt future identifications they might make.
Focuses law enforcement resources on the right person.
Protects against defense challenges
For the Public
Avoiding civil payouts stemming from wrongful convictions. There have been multimillion dollar payouts to exonerees in eyewitness mis-ID cases nationally.
Enhances public safety by ensuring the real perp is detected.
Increased public confidence in the criminal justice system.
The goal is uniform adoption of the ‘core four’ best practices by every agency in the state, but there are different ways to achieve that.
Nationally 19 states have achieved uniform adoption of key reforms in different ways.
3 states achieved reform through state high courts (Massachusetts, New Jersey and Oregon).
11 states enacted statutes that require law enforcement to use best practices (Connecticut, Colorado, Georgia, Maryland, Nebraska, North Carolina, Ohio, Texas, Vermont, Wisconsin, West Virginia).
5 states achieved reform through substantial voluntary adoption of best practices by law enforcement agencies, or a combination of legislation and voluntary compliance (Hawaii, Michigan Montana, Nevada, Rhode Island)
Voluntary adoption is considered “substantial” when agencies covering at least 75% of the state’s population submit written policies that contain best practices.
Legislation is the quickest way to achieve uniformity.
Some statutes are more prescriptive and lay out every step of the procedure that law enforcement has to follow.
Others are more flexible and are keyed to model policies developed with law enforcement.
Most of the statutes do not include a legal remedy- only OH and NC have a jury instruction as the remedy.
That’s because there is already a built-in constitutional protection against unreliable eyewitness identifications.
In the Manson case, the U.S. Supreme Court determined that unreliable eyewitness identifications violated due process.
Defense attorneys can already argue for suppression of unreliable eyewitness identifications that were the result of unscientific practices.
Even though legislation is the quickest way to reform, the Innocence Project has found that the best approach is to begin by working with law enforcement on a plan for voluntary statewide adoption.
There are four key elements of every successful voluntary compliance effort.
1. Requirement for written policies and development of state model policy.
2. Statewide training for current officers, provided for free by the Innocence Project.
3. Tracking compliance through a statewide entity that collects and reviews agency policies.
4. Establishing a roadmap and timeline for reform.
The Innocence Project can provide free resources to help with statewide voluntary adoption efforts that make the entire effort cost-free.
1. We offer free statewide trainings for law enforcement led by Chief Bill Brooks, a certified eyewitness ID trainer and police chief outside of Boston.
2. Mailing “implementation toolkits” to every agency in the state.
3. We can fund and coordinate compliance surveys and analyze policies, we just need a local entity to be the face of the effort to get better response rates.
Montana (Voluntary Adoption):
In 2012 the Montana Law Enforcement Academy, which trains new recruits, developed a state model policy with the ‘core four’ best practices.
In 2015 the Montana legislature passed a resolution to study statewide implementation of eyewitness identification reform, which was supported by the Montana County Attorneys Association, Montana Police Officers Association and other law enforcement groups.
As a result of the interim study, the Montana Innocence Project and law enforcement developed a timeline for voluntary statewide reform.
Over 6 months we conducted statewide trainings and distributed the model policy and implementation tools to every agency in the state.
There are 125 agencies in the state and compliance surveys found at agencies covering 80% of the state’s population had adopted the model policy or their own written policy.
Nebraska:
In Nebraska we worked with the state’s Crime Commission on a plan for voluntary compliance. However a year later only half of agencies adopted best practices.
To achieve statewide uniformity, in 2016 the legislature enacted a statute that required all agencies to adopt minimum standards set by the Crime Commission.
The Nebraska Innocence Project, Attorney General and Commission developed minimum standards and a model policy that included key best practices.
Colorado: The Colorado Attorney General and Colorado District Attorneys Association formed the Colorado Best Practices Committee for Prosecutors, which worked collaboratively with the Innocence Project to examine eyewitness identification best practices.
The committee issued a model policy that includes the ‘core four’ best practices and supported a law that was enacted in 2015 to require every agency to implement these procedures.
In 2013 Dr. Neil McNabb, a Criminal Justice professor at Buena Vista University and Iowa Innocence Project board member conducted a survey of sheriffs and police agencies and got 116 responses.
The survey did not ask about all of the key reforms, but it did find some areas that should be improved.
Nearly 60% of agencies do not have written eyewitness ID policies and procedures.
Almost all agencies selected fillers based on their resemblance to the suspect as opposed to their resemblance to the witness’s description of the perpetrator.
53% were aware of investigation where the witness picked a fillers.
To ensure uniform statewide adoption of best practices, we recommend developing a timeline for voluntary adoption including.
Establishing a state model policy.
Distributing model policies and implementation tools to all agencies, which the Innocence Project can pay for.
Setting up training which the Innocence Project can also coordinate and fund.
Conducting a compliance survey to assess level of adoption.
Nationally, 29% of nation’s DNA exonerations involved a false confession.
In 9 of the 13 wrongful conviction cases involved either a false confession in which the innocent person implicated himself, or was falsely implicated by others.
Terry Harrington and Curtis McGee were 17-years-old and wrongfully convicted of murdering a retired police captain in Council Bluffs in 1977. At the time, Harrington was captain of his high school football team and was being recruited by Yale.
Harrington’s friend Kevin Hughes implicated the two men while he was being interrogated for a separate crime. During the interrogation, police fed Hughes details about the crime and promised reward money and dismissal of the charges against him. The interrogation was not recorded.
Based largely on Hughes’s statements, Harrington was convicted and sentenced to life in prison without parole. McGee was also convicted and received a life sentence.
In 2003, a lawyer reinvestigated the crime, and tracked down Hughes, who recanted his statements. The investigation also uncovered a police report stating that a witness saw a white male running from the crime scene.
The Iowa Supreme Court overturned the convictions, ruling that prosecutors committed misconduct by concealing the report.
Harrington and McGee sued prosecutors for framing them, and the lawsuit reached the U.S. Supreme Court, but was dismissed after a settlement was reached with Pottawattamie County for $12 million. Also won $6.2 million from Council Bluffs.
This case shows the heavy price of wrongful convictions not just for the innocence but for taxpayers.
Recording interrogations helps investigators, judges and juries more accurately assess what went on during closed-door interrogations.
Benefits to Law Enforcement
Fewer filler picks and fewer witnesses “burned” for future use.
Focuses law enforcement resources on the right person.
Protects against defense challenges
For the Public
Avoiding civil payouts stemming from wrongful convictions.
Enhances public safety by ensuring the real perp is detected.
Increased public confidence in the criminal justice system.
21 states + District of Columbia require recording of certain interrogations.
Federal law enforcement agencies have a policy of recording interrogations for all crimes.
Mechanism by which recording interrogations is required
Court action: 6 states (AK, IN, MA, MN, NJ, UT)
Statute: 15 states + District of Columbia (CA, CO, CT, IL, MN, MD, MI, MO, MT, NE, NM, NC, OR, VT, WI)
Crime Categories
Some of the states require recording interrogations for all crimes, others only for the most serious crimes.
Remedies: The vast majority of states that mandate recording of interrogations provide remedies for noncompliance which fall into the following categories (ME, MD & NM do not offer remedies):
Presumed inadmissibility: 6 states (AK, CT, IL, IN, MN, UT)
Possible inadmissibly and jury instruction: 3 states (CA, NC, NJ)
Jury instruction: 7 states (CO, MI, MT, NE, OR, VT, WI)
Possible withholding of state funds: 1 state (MO)
2006: In State v. Hajitic (HIGH-TEACH) the Iowa Supreme Court encouraged agencies to electronically record interrogations.
Attorney General Tom Miller stated that the Hajtic decision should be interpreted as essentially requiring agencies to record.
The Iowa Department of Public Safety (DPS) adopted a general order requiring the electronic recording of all custodial interrogations conducted by DPS officers in detention facilities.
I reviewed the policy and it’s an excellent model.
Requires recording of all custodial interrogations conducted at DPS facilities
Requires recording interrogations in their entirety, beginning with reading of Miranda rights.
States a preference for video recording.
Lists good cause exceptions to the recording requirement and requires them to be documented.
2013-2014 Iowa Bar Association Board of Governors decided to move ahead with legislation mandating recording with a remedy of suppression, despite the fact that the Criminal Law Advisory Committee wanted a jury instruction.
2011:
The Iowa State Bar Association surveyed Iowa’s 421 law enforcement agencies.
Half of the state’s 421 police and sheriff agencies responded.
99% reported recording interrogations at least in some circumstances. All but one agency reported owning or having access to recording equipment.
However there was little consistency in agency policies or practices.
Less than half of respondents reported having written policies and 26% had no policy.
More than one-third of agencies leave the decision to record to the investigating officer.
Mandate to record interrogations is the most effective way to achieve reform.
1. Legal remedy is necessary to ensure compliance
The major different between eyewitness ID reform and recording interrogations is that there is no built-constitutional safeguard against an unrecorded statement, like there is against an unreliable witness identification. The constitutional test for admitting a confession is voluntariness and courts don’t have to consider whether or not the interrogation was recorded.
Nearly every state that requires recording of interrogations provides direction to the courts about what to do if an interrogation is unrecorded. States either allow for suppression, a jury instruction or a combination of both.
The legal remedy incentivizes law enforcement to comply with the law.
2. Guidelines are voluntary meaning that agencies can choose which aspects to adopt if any at all. Individual officers can start and stop recording whenever they want which provides little protection to the innocent.
3. Legislation leads to uniform practices throughout the state of recording interrogations for certain crimes. The Bar Association survey demonstrated that that although all but one of 205 responding agencies had access to recording equipment, there was no consistent policy or practices among the agencies.
Mandate to record interrogations is the most effective way to achieve reform.
1. Legal remedy is necessary to ensure compliance
The major different between eyewitness ID reform and recording interrogations is that there is no built-constitutional safeguard against an unrecorded statement, like there is against an unreliable witness identification. The constitutional test for admitting a confession is voluntariness and courts don’t have to consider whether or not the interrogation was recorded.
Nearly every state that requires recording of interrogations provides direction to the courts about what to do if an interrogation is unrecorded. States either allow for suppression, a jury instruction or a combination of both.
The legal remedy incentivizes law enforcement to comply with the law.
2. Guidelines are voluntary meaning that agencies can choose which aspects to adopt if any at all. Individual officers can start and stop recording whenever they want which provides little protection to the innocent.
3. Legislation leads to uniform practices throughout the state of recording interrogations for certain crimes. The Bar Association survey demonstrated that that although all but one of 205 responding agencies had access to recording equipment, there was no consistent policy or practices among the agencies.
One concern we often hear about legislation is costs.
The Bar Association survey found that only 1 of the 205 responding agencies had access to recording equipment.
Last year the Innocence Project conducted a survey of law enforcement agencies in Massachusetts and Wisconsin, where the practice has been required for over a decade, to better understand the costs of implementation. We received over 100 responses.
Costs for recording devices:
Ranged from $50 to $100 for handheld digital cameras.
Some used closed circuit interview management systems that cost $500 or more.
Some agencies reported using body cameras.
Storage: The majority of agencies said they used existing computer servers to storage recordings, most also burn recordings onto DVDS which frees up storage space.
Installation and Maintenance: A majority of agencies said that equipment was self-installed and reported no maintenance costs.
Transcriptions: Most agencies said they do not transcribe interviews and those that do transcribe on a case-by-case basis.
Small agencies: About 13% of respondents had 10 or fewer officers and most reported using handheld digital recorders.
22% said they have equipment sharing arrangements with other agencies.
Recording custodial interviews can result in long-term savings that will outweigh the initial costs of implementation. In 2004, former U.S. Attorney Thomas Sullivan issued a report in which law enforcement identified the following benefits associated with the practice:
Improved court efficiency with fewer pretrial motions to suppress statements and confessions, and more guilty pleas.
Time savings for officers who no longer need to review and piece together notes from interviews.
Fewer lawsuits stemming from frivolous claims of officer misconduct during custodial interviews.
Protecting taxpayers from civil settlements. For example, Terry Harrington and Curtis McGee settlement cost Council Bluffs $6.2million and Pottawattamie County $12 million.
Other concerns we often hear are that mandates with legal remedies will lead to good confessions being suppressed, or lead to more litigation around suppression issues.
Most states only have a jury instruction for non-recording, and all have good cause exceptions that excuse unrecorded statements.
The Kansas Judicial Council has been looking at this issue for the past couple of months and they got in touch with a State Attorney’s office in IL and the Vermont Law Enforcement Advisory Board to ask about these issues.
Both said that law enforcement was able to explain why recording was not feasible in court without a remedy.
Both said that it was rare that interrogations were not recorded in violation of the statute.
Neither reported additional litigation around the issue of suppressing an unrecorded statement. The VT statute specifically says that unrecorded statements that are in violation of the law can still be admitted.
