NJ to Require Recording of Interrogations

Very interesting. According to this article from The Star Ledger, new rules adopted by the New Jersey Supreme Court will require recording of interrogations - either audio or videotaping - from the Miranda reading forward.

I think this is great. We know that so many of our clients' confessions come after hours and hours of interrogation, then the videocamera is finally turned on, and all the jury sees is our client blurt out, "Yes, I did it!" Maybe if the jury saw how that confession was reached, they would be more skeptical of it's veracity.

The article states that there will be sanctions for failure to comply with the new rule. Courts can choose to preclude any confession where the entire interrogation was not recorded, or can caution jurors about the reliability of such confessions.

It may be interesting to those outside the criminal defense sector to learn that many of the wrongful convictions that have been overturned involved a confession by the defendant. For a number of reasons, people sometimes confess to crimes they are not guilty of. Videotaping those confessions in their entirety can help identify and prevent those situations.

Finally, the article mentions that the new rule will be phased in, first requiring recording of interrogations in homicide cases by January 2006, then in felonies where the defendant faces more than 5 years in prison by January 2007, and then (presumably, although it is not mentioned in the article) eventually to all interrogations.

I'll be most interested in hearing whether this will come as a mixed blessing for public defenders in that area. Perhaps it will lead to damning recorded confessions in more cases, or limit the defenses available at trial because a defendant already chose their defense before speaking to a lawyer. I would expect that it would lead to New Jersey public defender's wishing more clients knew -and understand- that they had the right to remain silent. Will the absence of a videotape hold a new inference for a jury to draw against a defendant?

Only time (and hopefully some NJ public defender bloggers) will tell.

8 comments:

  1. NJ PD here. Let us just say the last set of rules similar to this one, witness id, and the one prior to that, racial profiling, are followed more by judges out of state than in state. Our state policy pretty much prevents us from blogging work, but.....

    I suspect I know where you got the story and I think you might see more there, if they don't can his ass first.

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  2. uh oh, didn't mean to encourage anything that will cost anyone their job.

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  3. MA also 'requires' recording interrogations. Interrogations that are not recorded are presumed unreliable.

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  4. Minnesota and Alaska have been requiring taped interrogation for over ten years. Cops and prosecutors in these states absolutely love it. The only drawback is the cost of keeping the system running, but those costs are often covered by the administrative savings. There are excellent resources about taped interrogation at www.neilnelson.com/pages/2/index.htm

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  5. I have never understood why people confess to any crime without first talking to a lawyer. How do these interrogaters keep suspects detained for hours and hours without the suspect ever asking for a lawyer?

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  6. In Virginia they do it by only stopping the interrogation if you specifically and in very clear terms state that you will not talk to the officer without a lawyer. Saying things like "Can I have a lawyer?" or "I should probably have a lawyer in here." get blown past by officers who quickly change the subject and/or distract the suspect so that he will not phrase it correctly. As well, many people just won't ask for an attorney because they think it makes them look guilty.

    Ironically, the only group of people whom I see consistently asserting their right to a lawyer is frequent flyers, because they know they have to specifically say "I will not talk to you about anything without my lawyer."

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  7. "How do these interrogaters keep suspects detained for hours and hours without the suspect ever asking for a lawyer?" The guilty are afraid of appearing guilty and therefore often do not assert their rights.

    "How do these interrogaters keep suspects detained for hours and hours without the suspect ever asking for a lawyer?" Many think they can lie their way out of it as they have most of their lives. The key is to let them tell their lies and commit to a set of assertions that can be disproven. After they tell the first version of the truth you just hit them with the facts that prove they are lying. 90% will come back with a second version of "the truth" that they hope will explain away the facts that you used. After they tell that version you hit them with additional facts that prove the second story a lie. Usually the third go round is as close to the truth as most criminals can bring themselves to tell.

    "...only stopping the interrogation if you specifically and in very clear terms state that you will not talk to the officer without a lawyer." Well, if they never assert their right why would we acknowledge it?

    I've had crooks ask me "do you think I need an attorney", to which I would honestly answer "If you're guilty then hell yes you do and every attorney in the world's first inclination would be to tell you to shut up." And then I hit them with the second part of that response..."But, if you're innocent as you claim, then why not tell me your version of what happened and we can clear this up and get on with our lives." I've locked up thousands of guys based on them grasping at the straw I offered with that.

    As much as you all like to think that most cops play fast and loose with the rules, the fact is that we don't have to stretch the boundaries of our ethics to snag your clients into confessing. They're too easy to catch the right way.

    We do push the envelope of the law only to the extent that we (and the prosecutors advising us) think meets what statute and case law provides for. Being imaginative and daring is not wrong, just bold. And I am batting a 1,000 on appeals - having only lost one time and that was reversed en banc (along with the original panel being ridiculed by the majority for trying to create bad law).

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  8. For anyone interested in taped interrogation resources, http://en.wikipedia.org/wiki/Interrogate

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