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School of Law
1045 W. Maple St.
Robert A. Leflar Law Center
Waterman Hall
University of Arkansas
Fayetteville, AR 72701

Phone: (479) 575-5601

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Wrongful Convictions: If Mandatory Recording Is the Antidote, Are the Side Effects Worth It?

Michael Kiel Kaiser

The author thanks Brian Gallini, Associate Professor of Law, University of Arkansas School of Law, for his encouragement and sound advice throughout the editorial process.

I. INTRODUCTION

[[167]]In 1966, the United States Supreme Court handed down one of the most controversial opinions in the history of its jurisprudence, Miranda v. Arizona. 1 The public’s reaction was both instantaneous and enduring. 2 In his dissent, Justice White predicted that the majority’s ruling would “return a killer, a rapist or other criminal to the streets and to the environment which produced him, to repeat his crime whenever it pleases him.” 3 Several figures in law enforcement and politics openly predicted Miranda’s detrimental effect on law enforcement. 4 Many citizens believed that Miranda “seriously undermined the ability of law enforcement to protect the public from criminals” and “created a door through which scores of criminals could [[168]]avoid prosecution through technicalities.” 5 They argued that providing warnings to suspects would jeopardize the effectiveness of the interrogation process and drastically reduce the number of confessions. 6

Yet these fears proved to be largely unfounded. Nearly fifty years later, the Miranda exclusionary rule has only minimally impacted criminal prosecutions 7 because law enforcement has remained able to obtain confessions during custodial interrogations. 8 Indeed, the Miranda dissenters’ fears of harm to law enforcement were unjustified. 9 Today, some argue that Miranda has strengthened the interrogation process or, at least, failed to protect criminal suspects like the Court intended. 10 For example, law enforcement’s mere utterance of the Miranda warnings gives any subsequent statement made by a suspect “a virtual ticket of admissibility.” 11 Once police issue the familiarwarnings and obtain a waiver of a suspect’s rights, “Miranda is virtually irrelevant to the subsequent interrogation process or as a safeguard against false confessions.” 12 When a [[169]]suspect falsely confesses, his or her Miranda waiver often impedes any later attempt to challenge that confession. 13

Today, a similar debate surrounds the recording of custodial interrogations. 14 Typically, proponents of mandatory recording argue that it will decrease the number of wrongful convictions. 15 Opponents’ arguments against mandatory recording are reminiscent of the initial reaction to Miranda;they believe it will: (1) hinder law enforcement’s effectiveness; 16 and (2) create a new loophole through which guilty defendants may escape the penal system without punishment. 17 And just like with Miranda, these concerns appear unfounded. 18 Although several states have instituted mandatory-recording requirements in recent years, 19 the debate persists in many jurisdictions. 20

Arkansas recently chose a middle-of-the-road approach. In response to Clark v. State, Arkansas added Rule 4.7 to its Rules of Criminal Procedure in 2012, 21 requiring that “[w]henever [[170]]practical, a custodial interrogation…should be electronically recorded.” 22 In determining the admissibility of an unrecorded testimonial statement, courts may consider why law enforcement failed to make a recording; 23 however, courts cannot consider the lack of a recording in seven specific situations. 24 Early scholarly commentary describes Rule 4.7 as a philosophical shift in the right direction but notes that the Rule does not sufficiently protect the rights of criminal defendants. 25 This view is understandable given the pervasiveness of the wrongful-conviction argument in the contemporary legal environment; 26 however, mandatory recording may harm the very people it seeks to help and create unintended consequences for others.

The wrongful-conviction argument for mandatory recording fails to account for how such a requirement affects the vast majority of criminal suspects. Relatively few criminal suspects make false confessions that lead to subsequent wrongful convictions. 27 Although mandatory recording may [[171]]decrease this number, 28 it has several other effects that benefit law enforcement more than criminal suspects. Moreover, mandatory recording may not cure false confessions as proponents of the wrongful-conviction argument predict. The wrongful-conviction argument is incomplete and potentially damaging to criminal suspects. Further, it may even fail to address the very problem that mandatory-recording proponents hope to resolve. 29 Thus, Arkansas’s new recording rule may fall short on at least one of its idealistic goals.

Part II of this comment discusses the history of the movement to record and the contemporary debate surrounding mandatory recording. It also surveys several types of recording requirements and the typical arguments for and against them. Next, Part III examines the potentially negative effects of mandatory recording for criminal suspects. It then prescribes ways to improve existing recording requirements. Lastly, Part IV argues that although mandatory recording benefits the criminal-justice system generally, these benefits accrue disproportionately to law enforcement at the expense of criminal suspects.

II. RECORDING REQUIREMENTS

A. History

For more than seventy years, progressive elements of the legal community have called for more accurate recordkeeping during law-enforcement interrogations — more specifically for electronic recording. 30 But the United States Supreme Court has yet to weigh in on this issue. 31 This section highlights the history of the movement for recording requirements. Next, it outlines several current recording requirements throughout the United States, both judicially mandated and statutory.

1. The Movement to Record

[[172]]Although the mandatory-recording debate has gained notoriety in recent years, “[c]alls to electronically record interrogations are almost as old as the technology itself.” 32 In the first published interrogation manual in the United States, W. R. Kidd called for the verbatim recording of custodial interrogations through either sound recording or a stenographer. 33 He also advocated the use of “sound movies.” 34 Although some 1950s training manuals echoed Kidd’s push for recording, law enforcement remained split on the issue. 35

In the 1960s and 1970s, several legal scholars advocated for electronic recording as a means of regulating custodial interrogations. 36 In 1961, Bernard Weisberg became the first modern legal reformer to argue for electronic recording, contending that it could provide a necessary check on virtually unfettered police discretion in the interrogation room. 37 Scholars such as Yale Kamisar and Philip Zimbardo echoed Weisberg’s call. 38 However, throughout the next four decades, law-enforcement “trainers and leaders would almost universally oppose any taping requirements.” 39

2. Recording Requirements

a. Judicially Created Recording Requirements

The movement for “electronic recording of interrogations was all but dead until 1985” 40 when Alaska — seeing the potential for unrecorded statements to lead to wrongful [[173]]convictions — became the first state to require the recording of all custodial interrogations that occur in a place of detention. 41 The Alaska Supreme Court held that “an unexcused failure to electronically record a custodial interrogation conducted in a place of detention violates a suspect’s right to due process, under the Alaska Constitution.” 42 Alaska remains the only jurisdiction to recognize a due-process right to electronic recording. 43 And no jurisdiction has found that the U.S. Constitution gives criminal suspects such a right. 44 In 1994, Minnesota became the second state to impose a judicially created recording requirement. 45 Both Alaska and Minnesota’s high courts held that: (1) with some exceptions, the court would suppress products of an unrecorded interrogation at trial; 46 and (2) law enforcement must record specified parts of the interrogation in order to comply with the new requirements. 47 But neither court mandated a specific medium for electronic recording. 48

In 2004, the Massachusetts Supreme Judicial Court adopted what amounts to a recording requirement, but it lacks the exclusionary component of Alaska and Minnesota’s rules. 49 [[174]]The Massachusetts rule does not formally require law enforcement to electronically record all custodial interrogations; however, the failure to do so entitles the suspect to a favorable jury instruction. 50 In 2005, the New Jersey Supreme Court mandated, via court rule, the electronic recording of all custodial interrogations involving a list of violent crimes. 51 Four years later, the Indiana Supreme Court mandated the practice for all felony cases by amending its rules of evidence. 52

b. Statutory Recording Requirements

In 2004, Illinois became the first state to mandate electronic recording by statute, requiring it for all custodial interrogations in homicide cases. 53 In 2005, the District of Columbia, Maine, and New Mexico enacted recording requirements for all custodial interrogations involving certain offenses. 54 Several other states enacted similar laws and court rules in the following years. 55 In 2008, Maryland made it [[175]]“public policy” for law enforcement to make an audiovisual recording of custodial interrogations involving certain felonies, although it did not go so far as to mandate recording. 56 Ohio’s recording statute went into effect in mid-2010, creating a presumption of voluntariness for all statements made during custodial interrogations by people suspected of violating one of several enumerated felonies, if the statement was electronically recorded. 57 In late 2012, Michigan enacted a recording requirement for felonies punishable by twenty or more years imprisonment. 58 In early 2014, California’s Senate Bill 569 went into effect, requiring law enforcement to electronically record custodial interrogations of juveniles suspected of homicide. 59

B. The Contemporary Debate

Proponents of a mandatory recording requirement for all custodial interrogations typically argue along wrongful-conviction lines. First, this section explores the argument for a mandatory recording requirement within this narrow context of wrongful convictions. Next, it surveys the traditional [[176]]objections to electronic recording. This section then discusses the argument for mandatory recording in the broader context of the criminal-justice system. Finally, it examines the contemporary debate on mandatory recording, using the ongoing Florida debate as the primary illustration.

1. Typical Arguments

a. The Wrongful-Conviction Argument

A veritable swarm of legal scholars and practitioners argue that the mandatory recording of all custodial interrogations is necessary to curtail the number of false confessions leading to wrongful convictions. 60 This section outlines the essentials of this wrongful-conviction argument for mandatory recording.

Almost invariably, the argument begins by noting the high number of wrongful convictions in this country: Since 1989, DNA evidence has exonerated hundreds, perhaps even thousands, of convicts. 61 The argument notes that a large portion of these wrongful convictions involved defendants who made false confessions, and that several key features abound in these cases. 62 First, law enforcement typically elicited the suspect’s false confession through psychologically coercive interrogation methods. 63 Next, the suspect and the police often disagreed on the facts of the case and/or on what occurred during the interrogation. 64 Then, in virtually all of these wrongful-conviction cases, police failed to electronically record the interrogation; although in some cases the police recorded a “recap” of the interview, it only included the suspect’s post-interrogation confession. 65 Lastly, the wrongful-conviction argument identifies several features of the typical law-enforcement interrogation that raise the chances of innocent people confessing to crimes they did not commit. 66 These [[177]]features include: (1) high-pressure interrogation techniques; (2) promises of leniency and other benefits to the suspect; and (3) threats of harm if the suspect refuses to confess. 67

According to the argument, electronic recording makes officers aware that their behavior in the interrogation room will be scrutinized, thus compelling them to avoid the use of improper tactics. 68 Further, since electronic recording will provide the factfinder with a complete record of an interrogation, factfinders can more easily determine when a confession is false and/or a product of coercion. 69 The argument concludes that law enforcement could prevent “[m]ost of the wrongful convictions caused by false confessions” if they would electronically record all custodial interrogations in their entirety. 70 Proponents often insist that recording interrogations would help police departments and prosecutors recognize false confessors and permit factfinders to assess the reliability of confession evidence more accurately. 71

To illustrate their argument, these proponents typically highlight examples where people avoided conviction — despite having confessed — thanks to the healing power of electronic recording. 72 They also point out notable examples of people who were wrongfully convicted and later exonerated by DNA evidence and who could have benefitted from the electronic recording of their interrogation in its entirety (or at all). 73 [[178]]Further, the argument emphasizes that wrongful convictions cause more harm than the wrongfully convicted individuals by permitting potentially violent offenders to remain at-large. 74

b. Traditional Objections to Mandatory Recording

Traditional objections to mandatory recording echo the initial reaction to Miranda. 75 Similarly, most of these objections come from within the law-enforcement community. 76 Opponents have two primary concerns: (1) that criminal suspects will know police are recording them and will, thus, be unwilling to talk with interrogators, which will reduce the confession rate; 77 and (2) that law-enforcement implementation and execution will be too costly. 78 Others argue that recording is simply unfeasible in the interrogation context. 79 These opponents believe exposing the inner workings of a criminal interrogation may be too “messy” for some factfinders to stomach. 80 Another concern is that mandatory recording will allow criminals to learn what to expect from law enforcement during an interrogation, in essence creating “training film for criminals.” 81 Like the initial reaction to Miranda, most of the [[179]]concerns fall within the broader category of reducing law enforcement’s effectiveness. 82

2. Recent Developments Regarding Mandatory Recording

The recording debate often flares up when: (1) a jurisdiction realizes that it has a high rate of false confessions and/or wrongful convictions; 83 (2) DNA evidence disproves a wrongful conviction where the suspect confessed or a convict from a well-known case maintains his or her innocence despite having confessed; 84 or (3) a new jurisdiction joins the ranks of those that require electronic recording. 85 Further, the several non-profit legal organizations that work on overturning wrongful convictions based on false confessions ensure that the issue of mandatory recording remains salient in the public consciousness. 86

Florida offers an interesting test case. The Florida Supreme Court established the Florida Innocence Commission in July 2010 to make policy recommendations on how to [[180]]eliminate or reduce the amount of wrongful convictions. 87 In October 2011, a Commission member recommended a proposed statute mandating electronic recording for custodial interrogations involving certain crimes. 88 Trial courts would factor any failure to record into their determinations on the admissibility of statements. 89 Further, any such failure to record would entitle the suspect to a favorable jury instruction similar to that of New Jersey’s. 90

Seven of the Commission’s nineteen members voted against recommending the proposed statute. 91 Three members argued that the proposed statute did not go far enough, contending that unrecorded statements should be presumed inadmissible. 92 Three others did not believe that a recording requirement was necessary to combat a problem that affected so few. 93 The seventh opponent would have amended an existing Florida jury instruction rather than adopt New Jersey’s instruction. 94

More than two years have passed since the Commission made this recommendation, but the Florida legislature has yet to act on it. Even with the administrative authority of the state’s high court, the Commission was unable to sway the state legislature to consider several of its reforms, including the recording requirement. 95 The Commission chairman explained the recommendation’s failure as due to a lack of funding. 96 Currently, the Florida House of Representatives is considering a statutory recording requirement that would create a presumption of inadmissibility for unrecorded statements 97 — although a [[181]]similar bill failed to pass in 2006. 98 As of April 2014, Florida still does not require its law enforcement to electronically record custodial interrogations.

Other states recently embroiled in the debate reached different outcomes. In 2008, the Arkansas Supreme Court referred the practicability of mandatory electronic recording to its Committee on Criminal Practice for consideration. 99 Four years later, in June 2012, the court adopted a new rule of criminal procedure — Rule 4.7 100 — that compels law enforcement to electronically record “[w]henever practical.” 101 Later that year, Michigan enacted a statutory recording requirement for interrogations involving major crimes. 102 Somewhat surprisingly, the statute received the support of both defense attorneys and prosecutors. 103 Several other state courts have declined to mandate electronic recording absent legislative action condoning the practice. 104

3. Mandatory Recording Benefits the Criminal-Justice System Generally

Outside the narrow wrongful-conviction argument, mandatory recording offers several general benefits for the criminal-justice system. First, it saves the court system a lot of time. 105 By deterring the use of coercive police tactics during custodial interrogations and providing a complete and objective record of the interrogations, 106 electronic recording reduces the [[182]]number of defense claims of coercion during interrogations, pretrial motions to exclude custodial statements, and trials. 107 Second, courts do not have to call as many witnesses to evaluate the voluntariness of a confession because they can view the interrogations directly. 108 Third, by removing secrecy from the custodial-interrogation context, mandatory recording should improve the public’s perception of the criminal-justice system. 109 Specifically, it should improve public relations between police and the general public. 110 Mandatory recording also has several benefits for both law enforcement and prosecutors.

III. The Dark Side of Electronic Recording for Criminal Suspects

A. Potentially Negative Effects for Criminal Suspects

The wrongful-conviction argument often ignores the potentially detrimental effects such a provision would have on criminal suspects generally, and even on those who confessed despite their innocence. First, the manner in which law enforcement records custodial interrogations can affect a factfinder’s subsequent evaluation of voluntariness. 111 Second, video recording exacerbates certain human psychological flaws in detecting when a confession is false, thereby making a difficult task that much harder. 112 Finally, law-enforcement and prosecutorial experience with electronic recording suggests that the practice benefits these groups far more than it benefits suspects. 113

1. Manner of Recording Can Have Profound Effects on the Voluntariness Evaluation

[[183]]The manner in which law enforcement records an interrogation profoundly affects a factfinder’s evaluation of whether a suspect’s confession was voluntary. Most videotaped interrogations and confessions include only the suspect in the frame. 114 Positioning the camera this way seems natural since the factfinder will evaluate the voluntariness of a suspect’s statements. 115 However, this default camera perspective may have an unintended prejudicial effect on that very evaluation. Other common law-enforcement recording practices may muddle this evaluation even further.

Multiple studies confirm a “camera perspective bias,” where people judge a videotaped confession that includes only the suspect in the frame to be less coercive than the same interaction with both the suspect and interrogator(s) in the frame. 116 The bias cuts the other way as well: People rate video confessions that include only the interrogator(s) in the frame as more coercive than the same interaction with both the suspect and interrogator(s) in the frame. 117 The bias is generalized across different crimes and creates higher perceptions that the suspect’s confession was voluntary than either audio or transcript versions of the same confessions. 118 Lastly, the “equal-focus” perspective — showing both the interrogator(s) and suspect — yields similar perceptions of [[184]]voluntariness as both audio and transcript versions of the same confession. 119

Further, law enforcement often records a suspect’s final confession without recording any of the preceding interrogation. 120 Such “recap” recordings potentially convey to factfinders that a confession was more voluntary than it would have seemed had they watched the entire interrogation. 121 Law enforcement often records these recaps after asking suspects to recount their story multiple times. 122 Thus, by the time the camera is recording, the suspect’s statements may contain little of the emotion and agitation that may have been present initially, making the suspect appear more callous and unremorseful than he or she actually may be. 123 Recording in this manner “may actually lead to the wrongful conviction of more false confessors.” 124

2. Recording’s Inability to Overcome General Human Biases

As noted previously, one of the primary rationales behind the electronic-recording argument is that it permits factfinders to evaluate more accurately the voluntariness and veracity of a confession. 125 However, this may not be the case. Generally, people are not very good at distinguishing truth from untruth, 126 [[185]]and they become even worse when viewing a video statement instead of listening to a recording or reading a transcription. 127 A factfinder has a better chance of flagging a false confession when examining an audio or transcript version of a confession rather than a video version. 128 The differing results could derive from peoples’ tendencies to think that they can tell whether someone is lying from closely observing that person’s face. 129 However, most scientific evidence discredits this logic. 130 Thus, not all forms of electronic recording appear equal: Video recording exacerbates the general human inability to distinguish fact from fiction.

Further, people tend to attribute another’s actions to internal causes even when external pressures could readily account for them. 131 This phenomenon is known as the “fundamental attribution error.” 132 In assessing the voluntariness of a confession, people are more likely to attribute a confession to the suspect’s dispositions and intentions rather than any coercive conduct on the part of law enforcement. 133 Confession evidence seems so powerful that people do not fully discount the information contained within a confession, even when doing so may be logical or legally appropriate. 134 Video recording can intensify the effect of the fundamental-attribution error because external pressures, such as coercive interrogation [[186]]tactics, become less salient when a videotaped interrogation includes only the suspect in the frame. 135

The power of confessions, even if false, to influence the trier of fact is undeniable both in the archives of wrongful convictions and in the laboratory. 136 When police videotape interrogations in the typical manner, they can strengthen the effects of the fundamental-attribution error. People are generally bad at detecting false confessions in the first place, 137 but video recording appears to make their abilities even worse. 138 At the very least, the “application of videotaping to solve the problem of…false confessions slipping through the system is not as clear-cut as it might first seem.” 139

3. Police and Prosecutorial Experience with Electronic Recording Dispels the Traditional Objections

Today, law-enforcement agencies in every state, the District of Columbia, and some federal agencies record the majority of their custodial interrogations. 140 Although law-enforcement agencies often oppose the introduction of recording requirements, 141 police officers’ reactions are remarkably positive after field use. 142 In 2005 — eleven years after the Minnesota Supreme Court mandated recording 143 — a [[187]]state prosecutor referred to the practice as “the best thing we’ve ever had rammed down our throats.” 144 Further, some law-enforcement and prosecutorial organizations have come out in support of electronic recording. 145 Much of law-enforcement opposition to electronic recording appears unwarranted 146 and is often “born of police inexperience or ignorance” with the practice. 147 Contrary to the traditional law-enforcement objections, 148 electronic recording is a very useful law-enforcement tool. 149

First, recording does not diminish the ability to obtain confessions, 150 and no one has ever empirically verified that it does. 151 In fact, the very opposite may be true. 152 Next, electronic recording saves both time and money. 153 The argument that electronic recording is prohibitively expensive 154 simply does not hold up to a long-term cost-benefit analysis. 155 Any front-end costs stemming from the purchase and installation of recording equipment “will be repaid many times [[188]]over by the savings in the time and resources of police, prosecutors, judges, and jurors.” 156

Additionally, electronic recording reduces the amount of time that law-enforcement personnel must spend reconstructing and testifying about interrogations and confessions in court. 157 Less time in court means that law enforcement can devote more time to other investigations. 158 Further, police departments no longer need an additional officer present during interrogations to take notes, which saves time by freeing up an officer to focus on other investigations, and money in the form of salary paid for unnecessary work. 159 By creating an unadulterated record of the entire interrogation, electronic recording reduces meritless claims of police coercion, which often concern Miranda violations. 160 This reduction helps save “defense costs in civil suits based on police coercion and perjury.” 161

Electronic recording also has tactical advantages for law enforcement. It allows law enforcement to assess more accurately whether a suspect participated in a crime. 162 Officers, aside from any interrogator who is physically present, get to assess the accuracy of a suspect’s statement for themselves. 163 Further, having a complete, objective record of the interrogation reduces disputes at trial about law enforcement’s treatment of the suspect and what the suspect actually said, which can jeopardize an otherwise solid case. 164 Lastly, electronic recording allows law-enforcement supervisors to monitor custodial interrogations and “give feedback on proper techniques, thereby improving training.” 165

[[189]]Electronic recording can even help prosecutors secure convictions. 166 With recordings, prosecutors can “evaluate and prepare their cases more thoroughly.” 167 This benefit allows more bargaining power during plea negotiations, which leads to more guilty pleas. 168 Further, the successful recording of a suspect’s custodial interrogation removes any basis for a defense attorney to challenge an interrogator’s behavior or the admissibility of any statement, 169 resulting in fewer defense motions to suppress custodial statements based on involuntariness or Miranda violations. 170 Lastly, if a case ends up going to trial, judges and juries are more likely to convict based on a recorded confession rather than on a police officer’s summary of an interrogation that yielded the suspect’s confession. 171 In conclusion, recorded confessions make very powerful trial evidence. 172

B. Prescriptions for More Effective Recording Requirements

Although mandatory recording has several general advantages for the criminal-justice system, it is “not a panacea for the problem of false confession[s].” 173 Law enforcement can easily circumvent improperly structured or monitored recording requirements. 174 Moving forward, recording requirements must: (1) require video recordings to include both suspects and interrogators in-frame; and (2) electronically record the entire custodial interrogations, rather than just the [[190]]confession. Wrongful-conviction proponents should adjust their arguments accordingly.

No existing American recording requirement prescribes a method of recording beyond identifying what media are appropriate. 175 As previously mentioned, most videotaped interrogations include only the suspect in the frame, 176 which creates a camera-perspective bias in a factfinder’s subsequent evaluation of the confession’s voluntariness. 177 To mitigate these effects, recording statutes need to include a provision requiring that videotaped interrogations include the suspect and any interrogator(s) present in the frame. Adding this requirement may also reduce the effect of the fundamental-attribution error associated with the camera-perspective bias. 178 Since the 1990s, New Zealand’s public policy has called for law enforcement to record interrogations from an equal-focus perspective. 179 Proponents of the wrongful-conviction argument should advocate for more than electronic recording; they need to specify the manner in which law enforcement should make such mandatory recordings.

Further, any subsequent recording requirement should specify that the recording must cover the entire custodial interrogation — from the utterance of the Miranda rights to the very end of the interrogation. Although virtually every recording requirement specifies as much, 180 several police departments that record interrogations at their own discretion do not record in this manner. 181 Rather, they record a “recap” of the interview that typically includes only the suspect’s confession. 182 This method of electronic recording can be very damaging to criminal suspects, especially the innocent ones. 183

IV. CONCLUSION

[[191]]Although proponents of the wrongful-conviction argument point to electronic recording as the antidote for this country’s wrongful-conviction epidemic, it is more like a long bout of chemotherapy. The side effects are severe, and it may not even treat the very problem that it was implemented to address. While electronic recording may benefit the relative few who falsely confess to crimes they did not commit, it hurts a greater number of defendants who can no longer challenge the circumstances of their custodial confessions. Further, video recording in particular can exacerbate several human psychological frailties that make the already difficult task of determining voluntariness even more onerous. Finally, the fact that police and prosecutors familiar with the practice have cozied up to it should alert wrongful-conviction proponents that they should perhaps rethink their position. As it exists, their argument is far too narrow.

The wrongful-conviction argument is, at best, incomplete, and at worst, it goes against the interests of the very people electronic recording intends to protect. Electronic recording — at least in its current form — is not as bad for police as opponents believe, and it is not as good for suspects as proponents of the wrongful-conviction argument hope it will be. Like Miranda before it, the electronic recording of custodial interrogations benefits police and prosecutors despite their initial reluctance to the practice. Arkansas’s new Rule 4.7 is not an adequate protection against the admission of false confessions, and it may even exacerbate the problem.

Notes

  1. 384 U.S. 436, 444 (1966) (requiring law enforcement to provide warnings to suspects subject to custodial interrogation).
  2. See Welsh S. White, Miranda’s Waning Protections: Police Interrogation Practices After Dickerson 57 (2001) (“[F]or at least two years after the Miranda decision, conservative criticism of the Supreme Court was not only intense and passionate but often near the center of the political debate.”).
  3. Miranda, 384 U.S. at 538, 542 (White, J., dissenting) (decrying the majority opinion as a “judicial judgment that evidence from the accused should not be used against him in any way, whether compelled or not”). Justice Harlan’s dissent criticized the ruling as “poor constitutional law” and warned that it “would markedly decrease the number of confessions.” Id. at 504, 516 (Harlan, J., dissenting). Justice Clark also dissented in part. Id. at 499 (Clark, J., concurring in part and dissenting in part) (disagreeing with “the Court’s criticism of the present practices of police and investigatory agencies as to custodial interrogation”).
  4. Preceding the 1968 presidential election, eventual victor Richard M. Nixon attacked the Miranda ruling in several campaign speeches. 2 Stephen E. Ambrose, Nixon: The Triumph of a Politician 1962–1972, at 154 (1989). Further, the Boston Police Commissioner predicted that “[c]riminal trials no longer will be a search for the truth, but a search for technical error,” while the Philadelphia Police Commissioner described the opinion as “protect[ing] the guilty.” Fred P. Graham, Survey Shows Court Rule Curbs Police Questioning, N.Y. Times, July 20, 1966, at 1; More Criminals to Go Free? Effect of High Court’s Ruling, U.S. News & World Rep., June 27, 1966, at 32.
  5. Roscoe C. Howard, Jr. & Lisa A. Rich, A History of Miranda and Why It Remains Vital Today, 40 Val. U. L. Rev. 685, 695 (2006); see also S. Rep. No. 1097, at 37 (1968) (“[C]rime will not be effectively abated so long as criminals who have voluntarily confessed their crimes are released on mere technicalities.”).
  6. See White, supra note 2.
  7. Janet E. Ainsworth, In a Different Register: The Pragmatics of Powerlessness in Police Interrogation, 103 Yale L.J. 259, 299 n.200 (1993) (“Most later commentators have agreed…that Miranda has had little negative effect on criminal prosecutions.”); see also Paul G. Cassell, Miranda’s Social Costs: An Empirical Reassessment, 90 Nw. U. L. Rev. 387, 390 (1996) (noting “wide agreement that Miranda’s effects are negligible”).
  8. White, supra note 2, at 60; see also Lawrence Herman, The Supreme Court, the Attorney General, and the Good Old Days of Police Interrogation, 48 Ohio St. L.J. 733, 737 n.31 (1987);Irene Merker Rosenberg & Yale L. Rosenberg, A Modest Proposal for the Abolition of Custodial Confessions, 68 N.C. L. Rev. 69, 114 n.259 (1989).
  9. See Yale Kamisar, Remembering the “Old World” of Criminal Procedure: A Reply to Professor Grano, 23 U. Mich. J.L. Reform 537, 585 (1990).
  10. See Brandon L. Garrett, The Substance of False Confessions, 62 Stan. L. Rev. 1051, 1093-94 (2010) (“Th[e] use of Miranda to short-circuit a meaningful inquiry into the voluntariness of a confession supports scholarship questioning whether Miranda remains relevant and, indeed, whether its influence can be harmful.”); see also Saul M. Kassin et al., Police-Induced Confessions: Risk Factors and Recommendations, 34 Law & Hum. Behav. 3, 23 (2010) (“Whatever the mechanism, it is clear that Miranda warnings may not adequately protect the citizens who need it most — those accused of crimes they did not commit.” (citation omitted)).
  11. Missouri v. Seibert, 542 U.S. 600, 609 (2004) (plurality opinion) (noting that any “litigation over voluntariness tends to end with the finding of a valid [Miranda] waiver”).
  12. Richard A. Leo et al., Bringing Reliability Back In: False Confessions and Legal Safeguards in the Twenty-First Century, 2006 Wis. L. Rev. 479, 498; see also Richard A. Leo, Miranda and the Problem of False Confessions, in The Miranda Debate: Law, Justice, and Policing 271-72 (Richard A. Leo & George C. Thomas III eds., 1998) (“Miranda does not dispel, or arguably even affect, the conditions of modern interrogation that lead to false confessions from the innocent.”).
  13. See Garrett, supra note 10, at 1092.
  14. See infra Part II.B.
  15. See, e.g., Richard A. Leo & Kimberly D. Richman, Mandate the Electronic Recording of Police Interrogations, 6 Criminology & Pub. Pol’y 791, 791 (2007) (“Most of the wrongful convictions caused by false confession could have been prevented had police recorded the (entire) interrogation that produced the false confession.”).
  16. See, e.g., Commonwealth v. DiGiambattista, 813 N.E.2d 516, 531 (Mass. 2004) (“The principal objection to recording of interrogations springs from the fear that suspects will refuse to talk at all, or will decline to make a full confession, if they know they are being recorded.”); see also Colin Poitras, Interrogations May Be Recorded, Hartford Courant, Apr. 21, 2007, at B1, available at http://articles.courant.com/2007-04-21/news/0704210638_1_interrogations-innocence-project-videotaping (noting the Illinois Public Safety Commissioner’s disquiet that mandatory recording would “hinder the investigators’ interview techniques” and allow defense attorneys to “divert the focus of the jury’s attention…from the accused to criticism of an investigator’s interrogation techniques.” (internal quotation marks omitted)).
  17. See Maurice Chammah, Bill Would Require Police to Record Interrogations, Tex. Trib. (Dec. 5, 2012), http://www.texastribune.org/2012/12/05/bill-would-require-police-record-interrogations (noting a Texas state senator’s concern that a mandatory-recording provision would create “a big loophole that you could drive a truck through to get people off of criminal charges” (internal quotation marks omitted)).
  18. See infra Part III.A.3.
  19. See infra Part II.A.2.
  20. See infra Part II.B.2.
  21. Ark. R. Crim. P. 4.7 reporter’s notes;374 Ark. 292, 304, 287 S.W.3d 567, 576 (2008) (referring the “practicability of adopting” a rule requiring electronic recording to the Committee on Criminal Practice for consideration).
  22. Ark. R. Crim. P. 4.7(a).
  23. Ark. R. Crim. P. 4.7(b)(1).
  24. Ark. R. Crim. P. 4.7(b)(2)(A)–(G).
  25. See Jacob M. DeYoung, Arkansas Rule of Criminal Procedure 4.7: A Squandered Opportunity or a Step in the Right Direction?, 67 Ark. L. Rev. 147, 166 (2014) (“If courts apply the Rule merely on its face, they will waste a tremendous opportunity for advancement in the Arkansas criminal-justice system.”).
  26. See, e.g., Kassin et al., supra note 10, at 3-4; Leo & Richman, supra note 15; Richard J. Ofshe & Richard A. Leo, The Social Psychology of Police Interrogation: The Theory and Classification of True and False Confessions, 16 Stud. L. Pol. & Soc’y 189, 238 (1997).
  27. According to the Innocence Project — a non-profit legal organization dedicated “to assist[ing] prisoners who could be proven innocent through DNA testing” — “there have been 312 post-conviction DNA exonerations in the United States” since 1989. Fact Sheet, Innocence Project, http://www.innocenceproject.org/Content/351PRINT.php (last visited Mar. 18, 2014); Mission Statement, Innocence Project, http://www.innocenceproject.org/about/Mission-Statement.php (last visited Mar. 18, 2014). Other studies put the number at just over 2000 during the same period. David G. Savage, Registry Tallies Over 2,000 Wrongful Convictions Since 1989, L.A. Times (May 20, 2012), http://articles.latimes.com/2012/may/20/nation/la-na-dna-revolution-20120521.Although some scholars place the number of wrongful convictions in the American legal system in the thousands per year, this total represents only a small segment of the roughly one million felony convictions in the United States each year. See Marvin Zalman, Qualitatively Estimating the Incidence of Wrongful Convictions, 48 Crim. L. Bull. 221, 225-26 (2012). Further, only as much as one-quarter of wrongful convictions involve false confessions. Jon B. Gould & Richard A. Leo, One Hundred Years Later: Wrongful Convictions After a Century of Research, 100 J. Crim. L. & Criminology 825, 844 (2010).
  28. See infra notes 128-29 and accompanying text.
  29. Clark v. State, 374 Ark. 292, 303, 287 S.W.3d 567, 575 (2008) (“[T]he benefits of requiring a complete recording include…protection against admission of involuntary or invalid confessions and enhancement of the reliability of confessions.”).
  30. See, e.g., Richard A. Leo, Police Interrogation and American Justice 293 (2008) (noting that in 1932, Edwin Borchard argued that law enforcement should conduct interrogations “in the presence of phonographic records, which shall alone be introduced as evidence of the prisoner’s statements” (internal quotation mark omitted)).
  31. However, the Court noted that tape or video recording might be a good means of assessing the accuracy of hypnotically refreshed testimony. Rock v. Arkansas, 483 U.S. 44, 60 (1987).
  32. Steven A. Drizin & Marissa J. Reich, Heeding the Lessons of History: The Need for Mandatory Recording of Police Interrogations to Accurately Assess the Reliability and Voluntariness of Confessions, 52 Drake L. Rev. 619, 620 (2004).
  33. Leo, supra note 30.
  34. Id. (internal quotation marks omitted).
  35. Id. at 294.
  36. Id.
  37. Id.
  38. See Yale Kamisar, Equal Justice in the Gatehouses and Mansions of American Criminal Procedure, in Criminal Justice in Our Time 86-88 (A. E. Dick Howard ed., 1965); see also Philip G. Zimbardo, The Psychology of Police Confessions, Psychol. Today, June 1967, at 16, 17, 25.
  39. Leo, supra note 30, at 294.
  40. Id.
  41. Stephan v. State, 711 P.2d 1156, 1162 (Alaska 1985).
  42. Id. at 1158.
  43. See Marjorie A. Shields, Annotation, Criminal Defendant’s Right to Electronic Recordation of Interrogations and Confessions, 69 A.L.R.6th 579, 604-25 (2011).
  44. Matthew D. Thurlow, Lights, Camera, Action: Video Cameras as Tools of Justice, 23 J. Marshall J. Computer & Info. L. 771, 772 (2005).
  45. State v. Scales, 518 N.W.2d 587, 592 (Minn. 1994) (quoting Stephan, 711 P.2d at 1150-60).
  46. Stephan, 711 P.2d at 1162, 1165 (limiting the exclusion of unrecorded statements to cases where the failure to record was “unexcused” and the violation of the recording requirement was substantial). In State v. Scales,the Minnesota Supreme Court required law enforcement to electronically record custodial interrogations, yet the court never explained what that requirement entails. 518 N.W.2d at 592.
  47. Stephan, 711 P.2d at 1162 (noting that the recording must include “the giving of the accused’s Miranda rights” and “must clearly indicate that it recounts the entire interview”); Scales, 518 N.W.2d at 592 (noting that a recording must include “any information about rights, any waiver of those rights, and all questioning”).
  48. See Stephan, 711 P.2d at 1159 n.11 (“While we assume that most law enforcement agencies will employ audio or video tape recordings…the use of alternative methods, such as the preparation of a verbatim transcript by a certified shorthand reporter, in lieu of an electronic device, would also satisfy the requirements…”); Scales, 518 N.W.2d at 592.
  49. Commonwealth v. DiGiambattista, 813 N.E.2d 516, 533-35 (Mass. 2004) (“Despite our view that recording all interrogations would improve the efficiency, accuracy, and fairness of criminal proceedings, we still decline at this time to make recording of the interrogation a prerequisite to the admissibility of a defendant’s statement.”).
  50. See id. at 533. The instruction advises the jury “that the State’s highest court has expressed a preference that such interrogations be recorded whenever practicable.” Id. Further, it cautions the jury “that, because of the absence of any recording of the interrogation in the case before them, they should weigh evidence of the defendant’s alleged statement with great caution and care.” Id. at 533-34. Where the suspect’s voluntariness is in question, the instruction advises them “that the absence of a recording permits (but does not compel) them to conclude that the [prosecution] has failed to prove voluntariness beyond a reasonable doubt.” Id. at 534.
  51. N.J. R. C.R. R. 3:17(a) (adopted Oct. 14, 2005).
  52. See Order Amending Rules of Evidence, No. 94S00-0909-MS-4 (Ind. 2009), available at http://www.in.gov/ilea/files/Evidence_Rule_617.pdf (requiring audio and visual recording of custodial interrogations, with limited exceptions); see also Ind. R. Evid. 617(a) (the amended rule).
  53. Thomas P. Sullivan, Electronic Recording of Custodial Interrogations: Everybody Wins, 95 J. Crim. L. & Criminology 1127, 1128 (2005); see also 725 Ill. Comp. Stat. Ann. 5/103-2.1(b) (West 2013) (stating that an accused’s statement during a custodial interrogation is “presumed to be inadmissible” unless law enforcement electronically recorded the interrogation).
  54. See D.C. Code §§ 5-116.01–.03 (West 2013) (requiring law enforcement to record “custodial interrogations of persons suspected of” one of several enumerated “crime[s] of violence,” and making any unrecorded statement presumptively involuntary); Me. Rev. Stat. Ann. tit. 25, § 2803-B(1)(K) (West 2013) (mandating the recording of law-enforcement interviews of suspects accused of “serious crimes”); N.M. Stat. Ann. § 29-1-16(A) (West 2013) (requiring audio and/or visual recording of all custodial interrogations in their entirety).
  55. See Mont. Code Ann. §§ 46-4-406 to -411 (West 2013) (mandating audio, visual, or audiovisual recording of custodial interrogations in felony cases in their entirety — with a few narrow exceptions — and entitling suspects to a cautionary jury instruction when their unrecorded statements are admitted at trial); Neb. Rev. Stat. Ann. §§ 29-4501 to -4508 (West 2013) (mandating electronic recording for custodial interrogations involving certain felonies and entitling a criminal suspect to a favorable jury instruction when law enforcement fails to comply); N.C. Gen. Stat. Ann. § 15A-211 (West 2013) (mandating electronic recording of interrogations related to several classes of felonies, entitling a suspect to a favorable jury instruction when law enforcement fails to comply, and making the lack of an electronic recording a factor in the voluntariness evaluation); Wis. Stat. Ann. §§ 968.073, 972.115 (West 2013) (requiring audio or audiovisual recording of all custodial interrogations involving felonies, with limited exceptions, and entitling suspects to a favorable jury instruction if their unrecorded statements are admitted).
  56. Md. Code Ann., Crim. Proc. § 2-402 (West 2013). The Maryland legislature further showed its commitment to electronic recording by empowering the Governor’s Office of Crime Control and Prevention to develop a program to assist law-enforcement agencies with funding for outfitting interrogation rooms for recording. Md. Code Ann., Crim. Proc. § 2-404 (West 2013).
  57. Ohio Rev. Code Ann. § 2933.81 (West 2013). However, the Ohio statute does not penalize law enforcement for failing to electronically record interrogations. Ohio Rev. Code Ann. § 2933.81(B).
  58. Mich. Comp. Laws Ann. §§ 763.7–.11 (West 2013) (mandating audiovisual recording for all custodial interrogations involving a “major felony” and entitling a suspect to a cautionary jury instruction if his or her unrecorded statement is admitted at trial).
  59. Ted W. Lieu, Protecting the Rights of Juveniles, Santa Monica Daily Press (Dec. 20, 2013), http://smdp.com/protecting-the-rights-of-juveniles/130552.
  60. See supra note 26.
  61. See supra note 27 and accompanying text.
  62. See, e.g., Leo & Richman, supra note 15 (noting “15-20% of…wrongful convictions were caused by police-induced false confessions”); Andrew E. Taslitz, High Expectations and Some Wounded Hopes: The Policy and Politics of a Uniform Statute on Videotaping Custodial Interrogations, 7 Nw. J. L. & Soc. Pol’y 400, 404 (2012).
  63. Leo & Richman, supra note 15.
  64. See Kassin et al., supra note 10, at 25.
  65. See infra notes 121-22 and accompanying text.
  66. See White, supra note 2, at 182-83, 203-15.
  67. Taslitz, supra note 62, at 405 (pointing to “high-pressure interrogation techniques, such as suspect-isolation, time-limited leniency offers, repeated aggressive attacks on suspect guilt-denials, and aggressive confrontation”).
  68. Leo & Richman, supra note 15, at 795.
  69. Kassin et al., supra note 10, at 26. Some courts have echoed this argument. See Commonwealth v. DiGiambattista, 813 N.E.2d 516, 532 (Mass. 2004) (“When there is a complete recording of the entire interrogation that produced such a statement or confession, the fact finder can evaluate its precise contents and any alleged coercive influences that may have produced it.”).
  70. Leo & Richman, supra note 15.
  71. See, e.g., Leo et al., supra note 12, at 530; Taslitz, supra note 62, at 405.
  72. See Thurlow, supra note 44, at 807 (noting that the electronic recording of Richard Bingham’s interrogation and drunken confession to the rape and murder of a seventeen-year-old in Alaska likely prevented his wrongful conviction in 1997).
  73. A frequently cited example is the “Central Park Jogger” case. See Leo et al., supra note 12, at 479-84. In 1989, following the rape of a jogger in New York City’s Central Park, police arrested five juvenile males and obtained videotaped confessions from four of them. Id. at 479-81. Law enforcement failed to record the hours of preceding interrogations in all four cases. Id. at 481. Despite the fact that DNA at the scene of the crime did not match any of the five boys, all were convicted. Id. at 482. More than a decade later, a convicted serial rapist admitted to the crime, and all five defendants’ convictions were vacated. Id. at 482, 484.
  74. See, e.g., Leo, supra note 30, at 268; Thurlow, supra note 44, at 812 (noting that Jerry Frank Townsend’s false confession to the murder of a young girl distracted Illinois law enforcement from the true perpetrator, who went on to kill two more girls).
  75. See supra notes 1-6, 16-17 and accompanying text.
  76. See Leo, supra note 30, at 303.
  77. See Stephan v. State, 711 P.2d 1156, 1162 (Alaska 1985) (“[R]ecordings tend to have a ‘chilling effect’ on a suspect’s willingness to talk.”); Clark v. State, 374 Ark. 292, 304, 287 S.W.3d 567, 575 (2008) (expressing concern that recordation will “hamper police interrogation techniques”);Brian C. Jayne, Empirical Experiences of Required Electronic Recording of Interviews and Interrogations on Investigators’ Practices and Case Outcomes, John E. Reid & Associates, Inc.,http://www.reid.com/pdfs/Videotaping_study.pdf (last visited Mar. 18, 2014).
  78. See Clark, 374 Ark. at 304, 287 S.W.3d at 575 (noting that the “cost in the purchase and maintenance of recording equipment…would be a financial burden for some municipalities” (citing State v. Cook, 847 A.2d 530, 544 (N.J. 2004))); Leo, supra note 30, at 303-04 (explaining why the cost argument is unfounded).
  79. Leo, supra note 30, at 303-04.
  80. Robert Kolker, I Did It: Why Do People Confess to Crimes They Didn’t Commit?, N.Y. Mag, Oct. 11, 2010, at 22, available at http://nymag.com/news/crimelaw/68715.
  81. Id.
  82. See supra note 6 and accompanying text.
  83. See, e.g., Steven A. Drizin & Beth A. Colgan, Let the Cameras Roll: Mandatory Videotaping of Interrogations Is the Solution to Illinois’ Problem of False Confessions, 32 Loy. U. Chi. L.J. 337, 382-84 (2001) (pointing to six recent examples of false confessions in Illinois cases involving capital crimes to illustrate the need for mandatory recording in that state).
  84. See, e.g., Maurice Chammah, ’80 Murder Confession Raises Calls to Require Police to Record Interrogations, N.Y. Times, (Dec. 27, 2012), http://www.nytimes.com/2012/12/28/us/murder-confession-prompts-calls-in-texas-for-recording-interrogations.html?_r=0; Laura H. Nirider, Recorded Interrogations Should Be the Norm, azcentral.com, (Apr. 22, 2013, 8:03 AM), http://www.azcentral.com/opinions/articles/20130419recorded-interrogations-should-norm.html (arguing for mandatory recording after an Arizona woman, who denied confessing to the murder of her son, was released because the interrogator who testified that she confessed had a long history of misconduct); Beth Warren, 12-Year-Old’s Homicide Confession Is Case for Debate on Recorded Interrogations, Com. Appeal (Jan. 8, 2012, 12:00 AM), http://www.commercialappeal.com/news/2012/jan/08/breaking-thomas-they-wouldnt-believe-me.
  85. See, e.g., Clark v. State, 374 Ark. 292, 304, 287 S.W.3d 567, 576 (2008) (noting other states’ approaches to recording requirements in referring the practicability of adopting a similar rule to the Committee on Criminal Practice).
  86. For example, the Innocence Project argues that the “electronic recording of interrogations…is the single best reform available to stem the tide of false confessions.” False Confessions & Mandatory Recording of Interrogations, Innocence Project, http://www.innocenceproject.org/fix/False-Confessions.php (last visited Mar. 18, 2014).
  87. Fla. Innocence Comm’n, Interim Report-June 2011, at 1-2 (2011), available at http://www.flcourts.org/publications-reports-stats/publications.
  88. Fla. Innocence Comm’n, Final Report to the Supreme Court of Florida 37-38 (2012) [hereinafter Final Report], available at http://www.flcourts.org/publications-reports-stats/publications.
  89. Id. at 39.
  90. Id.
  91. Id. at 38.
  92. Id. at 40.
  93. Final Report, supra note 88, at 40.
  94. Id.
  95. Editorial, Justice Denied in Cash-Strapped Courts, Miami Herald (July 5, 2012), http://portfolio.du.edu/downloadItem/215858.
  96. Judge Belvin Perry, Jr., chairman of the Commission, explained that the Commission could not “avoid the reality that a number of the problems in our system of justice deal with the issue of adequate funding.” Id.
  97. See H.B. 393, 2013 Leg., Reg. Sess. (Fla. 2013).
  98. See HB 681 – Electronic Recording of Custodial Interrogations, Fla. House Representatives, http://myfloridahouse.org/Sections/Bills/billsdetail.aspx?BillId=32623& (last visited Mar. 18, 2014) (died in committee). Two earlier bills also failed in 2003 and 2005, respectively. Thurlow, supra note 44, at 788 & n.148.
  99. Clark v. State, 374 Ark. 292, 304, 287 S.W.3d 567, 576 (2008).
  100. Ark R. Crim. P. 4.7
  101. See In re Adoption of Ark. Rule of Criminal Procedure 4.7, 2012 Ark. 294, at 1-2 (per curiam) (calling the rule a “starting point”), available at http://opinions.aoc.arkansas.gov/WebLink8/0/doc/305899/Electronic.aspx.
  102. Jameson Cook, Michigan Law to Require Police to Video Record Interviews, Oakland Press (Mar. 24, 2013, 12:00 AM), http://www.theoaklandpress.com/general-news/20130324/Michigan-law-to-require-police-to-video-record-interviews.
  103. Id. (noting supporters’ claims that mandatory recording has a “dual positive effect of strengthening prosecutions’ cases when the defendant is guilty but also of protecting against wrongful convictions through coerced or misinterpreted statements”).
  104. Taslitz, supra note 62, at 408.
  105. Leo, supra note 30, at 302.
  106. See id. at 299.
  107. Id. at 302.
  108. Id.
  109. Id. at 303.
  110. Leo, supra note 30, at 303. Improved public relations “lends greater credibility to detective work — especially in urban communities where police may be distrusted by large segments of the populations — by demonstrating to prosecutors, judges, and juries the lawfulness of police methods and the confessions they obtain.” Id. at 302; see also Taslitz, supra note 62, at 407 (“A recording could reveal racial bias and encourage means for correcting it and can…promote law enforcement legitimacy by improving its public accountability.”).
  111. G. Daniel Lassiter et al., Videotaped Confessions: Panacea or Pandora’s Box?, 28 Law & Pol’y 192, 195 (2006) [hereinafter Panacea or Pandora’s Box?].
  112. G. Daniel Lassiter & Matthew J. Lindberg, Video Recording Custodial Interrogations: Implications of Psychological Science for Policy and Practice, 38 J. Psychiatry & L. 177, 185 (2010).
  113. See infra note 142 and accompanying text
  114. See Panacea or Pandora’s Box?, supra note 111.
  115. Id.
  116. See, e.g., G. Daniel Lassiter & Audrey A. Irvine, Videotaped Confessions: The Impact of Camera Point of View on Judgments of Coercion, 16 J. Applied Soc. Psychol. 268 (1986); see also Panacea or Pandora’s Box?, supra note 111, at 196, 199-200 (“[J]udges may be no better in resisting the contaminating effects of the confession-presentation format than individuals who are without benefit of extensive legal training and experience.”).
  117. Panacea or Pandora’s Box?, supra note 111, at 196.
  118. Id.; see also G. Daniel Lassiter et al., The Potential for Bias in Videotaped Confessions, 22 J. Applied Soc. Psychol. 1838, 1839-40 (1992) (discussing the perception of coercion created by video interrogations).
  119. Panacea or Pandora’s Box?, supra note 111, at 196.
  120. Thomas P. Sullivan, Nw. Univ. Sch. of Law Center on Wrongful Convictions, Police Experiences with Recording Custodial Interrogations 17 (2004); Saul M. Kassin, The Psychology of Confession Evidence, 52 Am. Psychol. 221, 230 (1997).
  121. See Kassin, supra note 120; Lassiter & Lindberg, supra note 112, at 181.
  122. Lassiter & Lindberg, supra note 112, at 181.
  123. Id.
  124. Thurlow, supra note 44, at 813 (emphasis added); see also Jay Barth, Another Supreme Court’s Missed Opportunity, Ark. Times (July 4, 2012), http://www.arktimes.com/arkansas/another-supreme-courts-missed-opportunity/Content?oid=2321970 (noting that law enforcement recorded only a small segment of the interrogation that included Misskelley’s confession). Jessie Misskelley, Jr., one of the “West Memphis Three,” is a good example. See Campbell Robertson, Deal Frees ‘West Memphis Three’ in Arkansas, N.Y. Times (Aug. 19, 2011), http://www.nytimes.com/2011/08/20/us/20arkansas.html?_r=0&pagewanted-print (noting that law enforcement interrogated Misskelley for nearly twelve hours before he confessed).
  125. See supra note 72 and accompanying text.
  126. See Charles F. Bond & Bella M. DePaulo, Accuracy of Deception Judgments, 10 Personality & Soc. Psychol. Rev. 214, 230 (2006) (“[T]he average person discriminates lies from truths at a level slightly better than he or she could achieve by flipping a coin…”); Lassiter & Lindberg, supra note 112, at 184 (“[P]eople generally do little better than chance when it comes to separating lies from the truth.”).
  127. Lassiter & Lindberg, supra note 112, at 184-85.
  128. Id.
  129. Id. at 185.
  130. See, e.g., id. This evidence is particularly troubling in the confession context given that the verbal content of a suspect’s statement is likely a more reliable source for distinguishing true and false confessions. See id.
  131. Lassiter & Lindberg, supra note 112, at 181.
  132. Id.; Kassin, supra note 120, at 229. The “fundamental attribution error” is a commonsense principle in lay attribution and law that one can trust statements a suspect makes against his self-interest; consider the more specific variant of this principle: “I would never confess to a crime I did not commit.” See Kassin et al., supra note 10, at 24. This principle is also evident in the rules of evidence and criminal procedure. See, e.g., Fed. R. Evid. 804(b)(3) (excepting statements made against one’s self-interest from exclusion by the hearsay rule because they go “so contrary to the declarant’s proprietary or pecuniary interest”).
  133. See Lassiter & Lindberg, supra note 112, at 181.
  134. See id. at 181-82.
  135. See G. Daniel Lassiter et al., Videotaped Confessions: Is Guilt in the Eye of the Camera?, in 33 Advances in Experimental Social Psychology 189, 195-97 (Mark P. Zanna ed., 2001). See supra notes 114-18 and accompanying text (discussing the “camera-perspective bias” that results from including only the suspect in the frame).
  136. See Kassin et al., supra note 10, at 24. In 1988, an Oklahoma jury convicted Robert Lee Miller, Jr., of two rapes and two murders and sentenced him to death after viewing his twelve-hour taped interrogation that culminated in his confession. Robert Miller, Innocence Project, http://www.innocenceproject.org/Content/Robert_Miller.php (last visited Mar. 18, 2014). In 1998, DNA evidence exonerated Miller. Id. His case is a prime example of the power that confessions have as evidence of guilt, even when false. See id.
  137. See supra note 61-62 and accompanying text.
  138. See supra notes 126-27 and accompanying text.
  139. Panacea or Pandora’s Box?, supra note 111, at 204.
  140. Thomas P. Sullivan, The Evolution of Law Enforcement Attitudes to Recording Custodial Interviews, 28 J. Psychiatry & L. 137, 168-72 (2010).
  141. See supra note 75-82 and accompanying text.
  142. See Sullivan, supra note 120, at 6 (“Virtually every officer with whom we spoke, having given custodial recordings a try, was enthusiastically in favor of the practice.”); see also Jayne, supra note 77 (noting that forty-eight percent of investigators in a two-state study believed that electronic recording favors the prosecution and that most did not think that it benefits the defense).
  143. State v. Scales, 518 N.W.2d 587, 592 (Minn. 1994).
  144. Sullivan, supra note 53, at 1127 (internal     quotation marks omitted).
  145. See Press Release, N.Y. State Dist. Attorneys Ass’n, New York State Law Enforcement Agencies Endorse Video Recording of Interrogations, Statewide Guidelines to Ensure Integrity of the Practice (Dec. 14, 2010), available at http://www.daasny.org/Press%20Release%2012-14-10.pdf (noting that all levels of New York’s state and local law enforcement endorse the electronic recording of custodial interrogations).
  146. Jayne, supra note 77. This part of the mandatory-recording debate is reminiscent of the initial backlash against Miranda and subsequent research dispelling many of the initial concerns regarding its effect on obtaining confessions. See supra notes 7-14 and accompanying text.
  147. Leo, supra note 30, at 304.
  148. See supra Part II.B.1.b.
  149. See Sullivan, supra note 120, at 6 (referring to electronic recording as “law enforcement’s version of instant replay”).
  150. Sullivan, supra note 53, at 1129. In a 2003 survey of 112 investigators from Alaska and Minnesota, seventy-four percent reported that mandatory recording did not affect their ability to obtain confessions. Jayne, supra note 77.
  151. Leo, supra note 30, at 303 (“[E]lectronic recording does not cause suspects to refuse to talk, fall silent, or stop making admissions.”).
  152. Sullivan, supra note 120, at 22 (“[T]he majority of agencies that videotape [interrogations] found that they were able to get more incriminating information from suspects on tape than they were in traditional interrogations.” (emphasis added)).
  153. Leo, supra note 30, at 302.
  154. See supra note 78 and accompanying text.
  155. Leo & Richman, supra note 15, at 793.
  156. Leo, supra note 30, at 302: see supra Part II.B.3. According to the Massachusetts Supreme Judicial Court, the cost of electronic recording equipment is “minimal.” Commonwealth v. Diaz, 661 N.E.2d 1326, 1328 (Mass. 1996).
  157. Leo & Richman, supra note 15, at 793.
  158. Leo, supra note 30, at 302.
  159. Id.; Leo & Richman, supra note 15, at 793. An Arizona police officer noted that the absence of a note taker has the additional benefit of making suspects “more at ease.” Nirider, supra note 84.
  160. Leo, supra note 30, at 302. The president of John E. Reid & Associates — a leader in police-interrogation methods — noted that “[w]hen somebody claims there was coercion, the [electronic] record speaks for itself.” Kolker, supra note 80, at 89-90 (internal quotation marks omitted).
  161. Sullivan, supra note 53, at 1130.
  162. Leo, supra note 30, at 300.
  163. Id. at 301.
  164. Sullivan, supra note 120, at 6.
  165. Taslitz, supra note 62, at 405.
  166. See Leo, supra note 30, at 303; Thurlow, supra note 44, at 810 (“The greatest beneficiaries of a mandatory video recording rule are not criminal suspects and defense attorneys, but police and prosecutors.”).
  167. Leo, supra note 30, at 301.
  168. See id.
  169. Id.
  170. Leo, supra note 30, at 297 (noting that electronic recording “prevents suspects from falsely accusing police of failing to give them Miranda warnings or using coercive interrogation methods”); Thomas P. Sullivan et al., The Case for Recording Police Interrogations, Litig., Spring 2008, at 30, 34 (“[Recording] relieves detectives from having to engage in courtroom swearing matches” about what occurred during the interrogation.); see Leo & Richman, supra note 15, at 793.
  171. Leo, supra note 30, at 301. Simply put, “videotapes sway juries.” Thurlow, supra note 44, at 812.
  172. See Thurlow, supra note 44, at 811-12 (noting that a recorded confession is “often irrefutable” as trial evidence).
  173. Id. at 812.
  174. Id. at 812-13.
  175. See supra Part II.A.2.
  176. See supra note 111 and accompanying text.
  177. See supra notes 116-19 and accompanying text.
  178. See supra notes 131-32 and accompanying text.
  179. See G. Daniel Lassiter et al., Accountability and the Camera Perspective Bias in Videotaped Confessions, 1 Analyses Soc. Issues & Pub. Pol’y 53, 65 (2001) (noting that New Zealand based its policy decision on earlier research by G. Daniel Lassiter identifying the camera-perspective bias).
  180. See supra notes 53-59 and accompanying text.
  181. See supra note 120 and accompanying text.
  182. See supra notes 120-21 and accompanying text.
  183. See supra notes 121-25 and accompanying text.