By Jack Hanna, Director, ABA Criminal Justice Section and
Tiffany Willey, Program Manager and Editor, ABA Public Education Division
For lawyers, law students and teachers to teach to middle school students. The lesson components can either stand alone or serve as an enhancement to readers of the book
Leapholes . Action steps form the lesson will require more than one class visit. A careful selection process should occur concerning which steps to implement should there be only one visit. The lesson can supplement the impact of the book or singularly serve as background for student understanding of the law and the process of policy development.
1.
Ask the teacher and students in the class to read the book
Leapholes . In the event that the class is unable to read the
book, the lessons may be taught independently.
2. The teacher, lawyer and or law students should read the ABA policy on video taped confessions located at the end of this lesson.
3. The teacher will distribute and go over Handout One the vocabulary list at least once prior to your class visit.
4. Have students look for and bring into class local and national newspaper articles about
false confessions.
5. Make 30 copies of Handouts 2 and 3, and six copies of Handout 4

Estimated Time: 20-30 minutes
again with students and answer any questions they may have about the concepts on the list.
and discuss the importance of accused persons knowing their rights. Make connections to Miranda Warnings in popular culture—students will be familiar with “You have the right to remain silent” from television and movies.
This is checking for student understanding—they must comprehend Miranda
Warnings, and restate them in practical terms, in preparation for later activities.
If you are familiar with Miranda v. Arizona, you might want to share the story with students. In considering the consequences of not knowing Miranda rights, students should arrive at the risk of false confessions, a nice segue into…
Ryan thinks his father is lying to him about not committing the crime. Of course, only do this if the class has read the book.
Discuss. This could be a bit risky, so ask the teacher’s advice first.
Allow a few examples. Again, this is a bit risky so ask the teacher’s advice first.

Estimated Time: 45 minutes
Ask for a volunteer to make a chart on the board for the class, perhaps two students—one for each column of “true” and “false.” This will facilitate brainstorming with the class.
Draw attention to the last paragraph of the handout, particularly the last two sentences explaining that false confessions happen despite Miranda warnings, and despite the decline of extreme interrogation tactics; and that false confessions are highest for those “vulnerable to suggestion.”
Students should brainstorm for a minute, and possibly segue into extreme interrogation tactics. If not, refer back to the document to do so, and move on to the next question. These questions are quick, to make sure students understand these main points, and get them ready for the more complicated small group activity.
Again, students should brainstorm quickly, and possibly segue into the power of suggestion. If not, refer back to the document to do so, and move on to the next question.
Students should brainstorm age, race, gender, ethnicity, disability, poor, homeless, unemployed, rural, urban, religion, geographic location, IQ, emotional state, exhausted, scared, compliant personality, etc.
4.
: Identify ways to ensure that false confessions are not given by those wrongly accused.
Identify the signs that police and or prosecutors could look for that

indicate that a confession may be false.
Identify the signs that police and or prosecutors could look for that indicate that a confession is true.
Identify what could be done to reduce the number of false confessions and increase the number of true ones.
5.
Have a student write each recommendation on the board. Discuss each recommendation with the entire class. If no group came up with the idea to audio or video tape confessions, then suggest that alternative and discuss. Refer to any existing TV programs that video tape confessions.

Estimated Time: 45 minutes
Designate one actor to be a police officer who will describe the other person’s confession, and perhaps even read it. Designate another actor to be the suspect, and have them tell their confession. Ask the two students to use Handout
4 to understand the crime scenario that the one will confess to, and the other will describe as outlined above. Have both students act their parts in front of the rest of the class. Ask the class which confession they thought was more true—the officer telling what happened, or the suspect telling what happened. Discuss.
Designate a third actor to confess to the crime outlined in Handout 4. Position the student so their face is hidden from the class, but their voice may be heard. Have them confess to the crime so the class may hear it. Reposition the student in front of the class so students may both see and hear him/her. Have the student repeat their confession to the class. Ask the class which confession they found more true—the audio confession—hearing the confession, or the visual confession— seeing the suspect confessing. Discuss.
Designate the remaining two students: one as a suspect, with the other as a police officer. Ask them to prepare the crime scenario using Handout 4, and have the officer get some questions ready, and bring the students back to class. Seat the suspect in front of the class as though they are being questioned by the police officer. For the first part of the simulation, position the police officer “off camera,” or out of sight of the class, but still able to be heard by the class and the suspect. Have the police officer question the suspect “off camera,” with the suspect answering the questions in front of the class. The class will only see the suspect answering. Move the police officer to the table, so both the officer and the suspect are at the table, having a conversation. Repeat the questioning with the officer and suspect in front of the class, so both may be seen by the jury.
Ask the class which confession they found to be more true—suspect alone talking, or the officer and suspect in questioning. Discuss.

officers, courts, or prosecutors
state legislature, police
local, state or federal;
who, when, where, what, why and how of taping specifics; and
especially in rural areas.
Have a student write each on the board.
Discuss each recommendation with the entire class. Be sure to discuss the pros and
cons of video taping confessions and how this would impact the ability of the jury to
evaluate the confession. Point out to students the difference between having a police
officer re-tell the story of a confession made to her and having the jury view a video
tape of the confession.
Discuss the differences and similarities
between ABA policy on video taping and the written
policies of each group. Discuss how these policies will
impact false confessions. Discuss what the students have
learned about the rule of law, especially with regard to
confessions and trials, and its place in American society.
1.
Invite an individual from the local police office or sheriff’s department, local prosecutor’s office, or local public defender’s office to class to discuss the issue of true and false confessions.
2.
Discuss controversial confessions in history—i.e. Salem witches, Sacco and Vanzetti, Lee Harvey Oswald, Lindbergh baby kidnapping initial 200 confessions—and discuss how confession recording policies may have affected those cases’ outcomes.
3.
Research possible wrongful convictions in your community, and advocate for DNA testing.

Ad Hoc Committee : a committee created in the spur of the moment to focus on a particular pressing issue. The committee exists outside the normal structure of the organization.
Client Confidentiality : the responsibility of attorneys not to reveal to others what the client tells the lawyer in private to maintain the confidences of their clients. Statements made to one’s attorney can not be used as evidence against the client in court
False Confession : agreeing to guilt for a crime one did not commit; wrongly acknowledging one’s guilt for a crime
Habeas Corpus : a written order from a judge to bring an individual before the court to determine if the person is being lawfully held. The person seeking habeas corpus relief is asking the court to free them from confinement.
Innocence : absence of guilt; blamelessness, freedom from illegality
Manslaughter : killing a person without planning to do so ahead of time but while acting recklessly, such as driving while drunk.
Miranda Warnings : reminders that the police must give to anyone they arrest about the rights of the person arrested to remain silent and to have a lawyer with him/her while the police are questioning him/her. The person under arrest must, before the police ask him questions, be clearly told that he or she has the right not to answer any questions and the right not to say anything to the police, and that anything the person says may used against him or her in court. The person arrested must be clearly told that he or she has the right to talk to a lawyer and to have that attorney with him or her while the police are questioning him/her, and that, if the person cannot afford to pay a lawyer, a lawyer will be appointed at no cost to represent him or her.
Presumption : a belief that is presented with a great degree of likelihood that it is correct and should be accepted.
True Confessions : asserting or agreeing to guilt for a crime that one did commit.
Wrongful Convictions : successfully convicting an individual of a crime they did not commit.

E DITED F ROM THE
E XECUTIVE S UMMARY OF THE
A MERICAN B AR A SSOCIATION C RIMINAL JUSTICE S ECTION BOOK ,
F REEING THE I NNOCENT : C ONVICTING THE G UILTY
I. I NTRODUCTION
The number people released from prison because of DNA indicating they did not do it, now over 160, reduces our nation’s pride in the criminal justice systems ability to protect the innocent.
1 A recent study identified 340 convictions of people who had not committed the crime,
196 of which did not involve DNA evidence.
2 Most troubling, many of these involved death penalty cases.
Based on this the American Bar Association Criminal Justice Section reviewed the causes for wrongful convictions, to recommend policies to better ensure that individuals will not be convicted of crimes they did not commit, and to compensate those who are exonerated. The
Section’s Ad Hoc Innocence Committee included defense counsel, prosecutors, judges, academics, and representatives from the forensic and law enforcement communities. The
Committee worked for 3 years drafting resolutions that have now been adopted by the ABA
House of Delegates. They include resolutions on:
1. Systemic Remedies,
2.
False Confessions,
3.
Eyewitness Identification Procedures,
4.
Forensic Evidence,
5.
Jailhouse Informants,
6.
Defense Counsel Practices,
7.
Investigative Policies and Personnel,
8.
Prosecution Practices, and
9.
Compensation for the Wrongfully Convicted.
After the ABA began its work, Congress enacted the Innocence Protection Act of 2004, 3 and the
Supreme Court agreed to review a case involving claims of “actual innocence” in habeas corpus proceedings.
4 New York’s highest court has already cited one of the ABA resolutions.
5
Prosecutors and police are also rethinking current practices.
6
This Executive Summary provides background on the problems addressed by each resolution and the ABA’s proposed remedies.
1
DNA has also been a powerful tool for convicting the guilty. Numerous “cold hits” (i.e., cases without suspects) have resulted in the apprehension of dangerous offenders. Moreover, since DNA analysis is now available at the inception of an investigation, the police have a much better chance of identifying the true perpetrator.
The ABA is currently in the process of developing standards for DNA evidence. See ABA S TANDARDS FOR C RIMINAL
J USTICE , DNA E VIDENCE . Once the proposed Standards have been approved by the Standards Committee, they will be available on the Criminal Justice Section’s website as “draft standards.” Only after they are approved by the Criminal Justice Section Council and ABA House of Delegates will they become ABA policy and represent the ABA’s position on the subject. See http://www.abanet.org/crimjust/home.html.
2 Samuel R. Gross et al., Exonerations in the United States 1989 Through 2003 , 95 J. C RIM .
L.
& C RIMINOLOGY 523, 524
(2005).
3 18 U.S.C. § 3600 (2004). The Act attempts to encourage specific state practices by the conditions it places on federal grants. Yet, it does not displace the need for the specific ABA resolutions, which are directed to a much broader spectrum of innocence issues.
4
5
See
See
House v. Bell, 125 S. Ct. 2991 (2005).
People v. Combest, 828 N.E.2d 583, 589 n.5 (N.Y. 2005) (“We note that an increasing number of jurisdictions are now mandating that police questioning of arrestees be recorded, and that a resolution calling for all law enforcement agencies to videotape in their entirety the custodial interrogations of crime suspects has recently been adopted by the New York State and American Bar
Associations.”).
6 See, e.g., Task Force Recommendations on Eyewitness Identification, 39-APR Prosecutor 16 (2005) (recommending changes in eyewitness and forensic practices).

II. F ALSE C ONFESSIONS
7
For some reason many innocent persons have confessed to crimes that they did not commit. Those confessions routinely result in convictions because of the dramatic impact at trial of a suspect who seemingly admits guilt openly to the police. Indeed, one research team concluded that “placing a confession before a jury is tantamount to an instruction to convict.” 8
Estimates of the extent to which false confessions contribute to wrongful convictions vary, with some estimates attributing close to one-fourth of all convictions of the innocent partly to false confessions. False confessions take place despite Miranda warnings and despite the modern decline of extreme interrogation tactics like those of the “third degree.” Studies reveal that the risk of the innocent confessing is highest for those most vulnerable to suggestion, or where deceptive or manipulative interrogation techniques are used.
7 See chapter 2.
8 Richard J. Ofshe & Richard A. Leo, The Decision to Confess Falsely: Rational Choice and Irrational Action , 74 D ENVER
U.
L.
R EV . 979, 1118 (1997).

Edited from Freeing the Innocent; Convicting the Guilty
FALSE CONFESSIONS 9
R ESOLUTION
RESOLVED, That the American Bar Association urges all law enforcement agencies to videotape the entirety of custodial interrogations of crime suspects at police precincts, courthouses, detention centers, or other places where suspects are held for questioning, or, where videotaping is impractical, to audiotape the entirety of such custodial investigations.
FURTHER RESOLVED, That the American Bar Association urges legislatures and/or courts to enact laws or rules of procedure requiring videotaping of the entirety of custodial interrogations of crime suspects at police precincts, courthouses, detention centers, or other places where suspects are held for questioning, or, where videotaping is impractical, to require the audiotaping of such custodial interrogations, to provide necessary funding, and to provide appropriate remedies for non-compliance.
I.
I NTRODUCTION
False confessions by suspects are among the major causes of wrongful convictions within the criminal justice system. Research indicates that about one-fourth of cases involving conviction of an innocent defendant include, among other things, false confessions.
10 Such confessions include a suspect’s incorrect statements of involvement in any or all facets of the crime being investigated. These statements can mislead police, prosecutors, defense attorneys, judges, and juries into focusing the case on the suspect, too often resulting in an erroneous conviction. An additional negative consequence is that the focus of the investigation is diverted away from the true perpetrator, allowing that perpetrator to continue criminal activity.
Recent reports of innocent defendants convicted largely because of false confession have been followed by calls for electronically-recorded interrogations.
11 The practice of electronically
II.
recording complete custodial interrogations has increased both in this country and throughout the world. Statutes requiring the recording of interrogations in their entirety have been introduced in a number of legislatures and enacted in the District of Columbia and Illinois. Police departments are increasingly adopting the practice, finding it beneficial to law enforcement.
F ALSE C ONFESSIONS
When a court tries to determine whether a suspect’s statements are false, the overarching problem is the difficulty in recreating who said what, who did what, and what body language and facial expressions accompanied these statements and actions. While videotaping or audiotaping
9 The ABA House of Delegates adopted Resolution 8A at its 2004 midyear meeting. It was sponsored by the New York
County Lawyers’ Association and the Criminal Justice Section. This chapter is based on the report that was written by Norman L.
Reimer, President-elect, New York County Lawyers’ Association, Neal R. Sonnett, Section Delegate, and Victor Streib. It has been updated.
10 C. Ronald Huff, Wrongful Conviction: Causes and Public Policy Issues , 18 ABA C RIMINAL J USTICE 14 (Spring 2003);
B ARRY S CHECK ET AL ., A CTUAL I NNOCENCE : F IVE D AYS TO E XECUTION AND O THER D ISPATCHES FROM THE W RONGLY C ONVICTED
246 (2000).
11 “Videotaping” encompasses any electronic method of preserving an audio-visual record of the interrogation.

the interrogation does not do much to alleviate problems at other stages of the criminal justice process, such procedures do seem to be the best aid to the later in-court determinations of reliability, as recognized by even the most conservative of researchers and analysts: “[T]here seems to be total agreement among those who have reviewed the problem that videotaping interrogations is an effective solution to the false confession problem.” 12
However unlikely it may appear that an innocent person who has not been physically coerced would confess to a crime, numerous false confessions have been documented. Various cases are collected and described in a 1997 law review commentary.
13 A 1998 article by Ofshe and Leo identified thirty-four confessions proven false through other evidence and eighteen confessions that appear false because of exonerating evidence and the lack of corroboration.
14
Many sources report other apparently false confessions.
15
Certain interrogation techniques, designed to elicit a true confession from a suspect who denies culpability, can have the effect of inducing a false confession. Ofshe and Leo describe these techniques in detail.
16 In essence, “interrogators manipulate the individual’s analysis of his immediate situation and his perceptions of both the choices available to him, and of the consequences of each possible course of action. An interrogator’s goal is to lead the suspect to conclude that confessing is rational and appropriate.” 17 An innocent person who is convinced that he will be arrested, tried, and convicted may rationally decide to confess if persuaded that confessing may reduce punishment, terminate the interrogation, or otherwise be of benefit.
Innocent suspects can be convinced that they will be convicted by interrogators’ false assertions that there is strong evidence against them. Such false assertions are legal and constitutional.
18
During police interrogations, investigators try to determine what information is available to the suspect, manipulate his perception of his situation, and usually offer some form of incentive to elicit a confession.
19 On the other end of the spectrum from positive incentives, police interrogators also may imply a wide variety of threats: “The modern equivalent to the rubber hose is the indirect threat communicated through pragmatic implication.” 20 Not surprisingly, one of the conclusions from the American Judicature Society’s January 2003
Conference on Wrongful Convictions of the Innocent was that misconduct (including suggestive, coercive, or misleading theories, as well as subconscious biases) is a primary systemic cause of wrongful convictions.
21
There are certain categories of persons who are particularly susceptible to aggressive interrogation techniques. Suspects who falsely confess to crimes that they did not commit tend to be particularly vulnerable, such as those intoxicated by alcohol or other drugs, or those overly eager to appear cooperative. The largest category of falsely confessing suspects consists of those with mental deficiencies or unusual cultural backgrounds. Additionally, juveniles tend to be unsophisticated in dealing with police interrogation tactics, more trusting of adult authority figures, and less informed about criminal law and the criminal justice process. Recent research also indicates that the race of a suspect correlates with his eagerness to cooperate and his
12 Paul G. Cassell, Balanced Approaches to the False Confession Problem: A Brief Comment on Ofshe, Leo, and Alschuler ,
74 D ENVER U.
L.
R EV . 1123, 1132 (1997).
13
Gail Johnson, False Confessions and Fundamental Fairness: The Need for Electronic Recording of Custodial
Interrogations , 6 B.U.
P UB .
I NT .
L.J. 719 (1997).
14 Richard A. Leo & Richard J. Ofshe, The Consequences of False Confessions: Deprivations of Liberty and Miscarriages of
Justice in The Age of Psychological Interrogation, 88 J.
C RIM .
L.
& C RIMINOLOGY 429 (1998).
15
See, e.g.
, B ARRY S CHECK ET AL ., supra note 2; Cops Urged to Tape Their Interrogations , C HICAGO T RIB ., Jan. 6, 2002
(after a lengthy unrecorded interrogation, Corethian Bell’s confession was videotaped); April Witt, Md. Weighs Taping Police
Interviews; Videos Dispel Questions on Tactics , W ASH .
P OST , Feb. 12, 2002; April Witt,
Pr. George’s Police to Videotape Interviews:
Interrogation Tactics Have Been Criticized , W ASH .
P OST
, Feb. 1, 2002 (four questionable confessions in Prince George’s County,
Maryland).
16 Richard J. Ofshe & Richard A. Leo, The Decision to Confess Falsely: Rational Choice and Irrational Action , 74 D ENVER
U.
L.
R EV . 979, 1114 (1997).
17
Id.
at 985.
18 Police interrogation tactics can and do include intentional trickery; lying to the suspect about nonexistent evidence or incriminating statements by other suspects and witnesses; strongly suggesting known elements of the crime to the suspect; and implied promises of leniency or harshness stemming from the suspect’s decision whether or not to confess.
See generally F RED I NBAU &
J OHN E.
R IED , C RIMINAL I NTERROGATION AND C ONFESSIONS (4th ed. 2001). While not necessarily clear violations of the suspect’s legal rights, such interrogation tactics can result in false confessions. See Ofshe & Leo, supra note 8, at 1114.
19 Ofshe & Leo, supra note 8, at 1114-15.
20 Id . at 1115.
21
See Symposium, Wrongful Convictions of the Innocent , 86 J UDICATURE 67-120 (Sept.-Oct. 2002).

susceptibility to confusion and misinformation.
22 Those vulnerable and mentally-impaired suspects may provide particularly unreliable statements in response to the isolation, fear, and intimidation of police interrogation settings, particularly if prompted by explicit or implied promises or threats, such as being freed to go home or getting a better or worse result at trial.
Some scholars have compiled checklists to assess the trustworthiness of a confession.
One, apparently prepared by Professor Saul Kassin, reads:
Consider the defendant’s background: IQ, mental disability, personality, compliant personality, exhausted or terrified, etc.
Assess the circumstances of police questioning: length of interrogation, tactics employed, claims about existing evidence, express or implied threats or promises, offers to let them go home if they would confess, etc.
Was the confession the defendant’s own statement or simply an acceptance of police suggestions? Did the defendant’s statement lead to new evidence that the police did not know of prior to the defendant’s statement?
Was it the defendant or the police who first stated key facts?
23
Any of these factors should cause heightened concern about the trustworthiness of a confession, but undoubtedly interrogations with none of the factors could nonetheless still result in false confessions.
R ECORDING C ONFESSIONS
In some jurisdictions, New York among them, substantial numbers of confessions are preserved on videotape. Interrogations are not. Under current practice, subjects are interviewed by detectives and, if a major crime is admitted, a prosecutor will capture the confession on a videotape, which will be very convincing evidence at trial. We understand that every New York
City precinct’s detective bureau possesses at least a single set of videotaping equipment and separate audio-tape recording equipment.
An ever-increasing number of jurisdictions record interrogations. A comprehensive study, published in March 1993 under the auspices of the U.S. Department of Justice, Office of
Justice Programs, National Institute of Justice (“Geller” study), 24 found that videotaping was used to some extent by one third of all police departments in jurisdictions with populations over
50,000. According to this study, those jurisdictions that did videotape overwhelmingly found that it improved the quality of police interrogations – nearly 50% reported that it helped a lot and over
35% reported that it helped somewhat. The benefits included (1) better preparation work by detectives, avoidance of distractions (typewriters, notebooks or extra personnel) at the interrogation, (2) easy monitoring of interrogations by supervisors through closed-circuit television to assess performance, (3) use of taped interrogations for training, and (4) use of taped confessions to elicit a confession from suspected accomplices. In addition, as a result of videotaping, there were fewer allegations by defense attorneys of coercion or intimidation.
Prosecutors likewise “were in virtually unanimous agreement” that videotaping helped them assess the State’s case and prepare for trial. The prosecutors also credited videotapes for providing details otherwise unavailable, including the suspect’s and officer’s physical condition and demeanor.
The Geller study made several important findings. First, the study quoted defense attorneys as more opposed to videotaping, because it gave the prosecutor a strategic edge.
Nevertheless, defenders still found the tapes useful for “client control” and evaluating the case with the client, and occasionally useful in conveying non-verbal information. Second, the study compared the practices of taping full interrogations with that of taping only “recaps,” reporting
22 C YNTHIA K.
L EE , M URDER AND THE R EASONABLE M AN : P ASSION AND F EAR IN THE C RIMINAL C OURTROOM (2003).
23 See Welsh White, False Confessions in Criminal Cases , 17 ABA C RIMINAL J USTICE 4, 5 (Winter 2003).
24 W ILLIAM G ELLER , N AT
’
L I NSTITUTE OF J USTICE , U.S.
D EP
’
T J USTICE , V IDEOTAPING I NTERROGATIONS AND C ONFESSIONS
(1993).

that full interviews averaged two to four hours, while recap interviews averaged 15 to 45 minutes.
The study also revealed some extra costs that arise in videotaping full interrogations due to the increased use of tape and extra transcription costs. The study’s discussion of the favorable comments about videotaping by prosecutors and police officers did not distinguish between those who record only recaps and those who record complete interviews. In sum, the study found that
97% of departments that have ever videotaped suspects’ statements find videotaping to be useful.
Minnesota requires electronic recording but not necessarily videotaping. Hennepin
County Attorney Amy Klobuchar wrote: “At the time of the decision to require recording in
Minnesota, most police and prosecutors in the state feared the new rule would make their jobs harder and undermine the cause of justice. But during the past eight years it has become clear that videotaped interrogations have strengthened the ability of police and prosecutors to secure convictions against the guilty. At the same time, they have helped protect the rights of suspects by ensuring the integrity of the criminal justice process.” 25
III.
T REND T OWARD R ECORDING OF I NTERROGATIONS
Recording interviews has been required by judicial opinion in Alaska since 1985 26 and
Minnesota since 1994.
27 The practice has been requested via suppression motion in numerous other jurisdictions, including New York State.
28 State courts have responded that, although recording complete interrogations would be a good idea, it was not required by due process and should be addressed by the legislature.
Two jurisdictions, the District of Columbia and Illinois, have recently enacted statutes requiring the recording of full interrogations for certain crimes.
29 The District of Columbia statute 30 requires the Chief of Police to adopt a General Order requiring the police to
“electronically record, in their entirety, and to the greatest extent feasible, interrogations of persons suspected of committing a dangerous crime or a crime of violence” if the interrogation is conducted in interview rooms with recording equipment. The Order addresses such issues as (1) when the suspect should be advised of the recording, (2) what questioning on lesser crimes should be recorded, and (3) how to ensure recording of interrogations in locations other than equipped interview rooms. The statute provides for maintaining relevant statistics and for reports, including an evaluation of the benefits of videotaping.
The Illinois statute 31 provides that, in homicide cases, statements made as a result of custodial interrogation in a police station or place of detention are presumptively inadmissible if not electronically recorded. This presumption can be overcome by proof, by a preponderance of the evidence, that the statement was voluntary and reliable based on the totality of the circumstances. In addition, the State can use the statement after proving, by a preponderance of the evidence, any of the following exceptions:
(1) the statement was made in open court, before a grand jury, or at a preliminary hearing;
(2) the statement was not recorded because it was not feasible to do so;
(3) the statement was voluntary and bears on the credibility of the defendant as a witness;
(4) the statement was spontaneous and not in response to a question;
(5) the statement was made after routine questioning for processing;
(6) the suspect requested that there be no recording, if the request is recorded;
(7) the statement was made out of state;
(8) the statement was made when the interrogator was unaware that a death had in fact occurred;
25 Amy Klobuchar, Eye on Interrogations: How Videotaping Serves the Cause of Justice , W ASH .
P OST , June 10, 2002, at A21
(Hennepin County includes Minneapolis and 44 suburban communities).
26 Stephan v. State , 711 P.2d 1156 (Alaska 1985).
27
State v. Scales, 518 N.W. 2d 587 (Minn. 1994).
28 People v. Owens, 713 N.Y.S.2d 452 (Sup. Ct. 2000).
29
These statutes, like the decisions in Alaska and Minnesota, do not specifically require videotaping.
30 D.C.
C ODE § 5-133.20 (2003).
31
725 I LL .
C OMP .
S TAT .
A NN . 5/103-2.1; 705 I LL .
C OMP .
S TAT .
A NN . 405/5-401.5 (2004).

(9) multiple suspects were questioned, and all available recording equipment was being utilized for other suspects; or
(10) the statement was otherwise admissible under law.
These two statutes are cautious starts that may serve as models for jurisdictions concerned that requiring recording in all cases will jeopardize prosecutions of the guilty or be unduly burdensome. There are proposals for similar legislation in a number of states, and some police departments are acting on their own. For example, at the end of January 2003, the Fort
Lauderdale Police Department announced its plan to videotape all homicide interrogations from start to finish. Interestingly, this department adopted the practice after studying other police agencies and concluding that “the advantages of taping far outweighed any perceived disadvantages.” 32 In 2005, the highest court in New York cited the ABA resolution in summarizing the developing trend toward recording:
We note that an increasing number of jurisdictions are now mandating that police questioning of arrestees be recorded, and that a resolution calling for all law enforcement agencies to videotape in their entirety the custodial interrogations of crime suspects has recently been adopted by the New York State and American
Bar Associations. Currently, Alaska, Illinois, Maine, Minnesota, Texas and the
District of Columbia have, by statute or case law, mandated the electronic recording of certain custodial interrogations . . . . As of summer 2004, law enforcement agencies in at least 238 cities and counties, including Los Angeles,
San Francisco, San Diego and Houston, regularly record custodial interviews of suspects in felony or other serious investigations (see Thomas P. Sullivan, Police
Experiences with Recording Custodial Interrogations, Northwestern University
School of Law, Center on Wrongful Convictions, at 4, A1-A10 [2004] . . .).
33
IV.
I NTERNATIONAL E XPERIENCE
Recording of interviews is commonplace in a number of countries. It has been required in Great Britain since 1984.
34 In Australia, police interrogations must generally be tape recorded where practical, and, in Australian federal prosecutions, the Federal Crimes Act requires that where a contemporaneous recording cannot be made, there must be an electronic recording of the written statement being read back to the suspect, with the suspect given an opportunity to refute anything in the written record.
35 In Tasmania, Evidence Act 2001 § 85a provides that, in a prosecution of a serious offense, evidence of an admission is not admissible unless a videotape of the interview is available. This requirement may be avoided:
(1) if the prosecution provides a reasonable explanation as to why there is no videotape and there is a videotaped interview of the defendant about the making and terms of the admission; or
(2) the prosecution provides a reasonable explanation for the lack of either video tape; or
(3) the court finds exceptional circumstances that justify admissibility.
A “reasonable explanation” is defined to include the impracticality of taping the admission when made, the unavailability of videotaping equipment, the defendant’s refusal to consent to the videotaping, or an equipment malfunction.
Hong Kong, in a report to the United Nations Committee Against Torture under the
Convention Against Torture, advised that the Hong Kong Immigration Department and the
Customs and Excise Department, which have the power to arrest and detain suspects, will
32
Wanda J. DeMarzo & Daniel de Vise, Ft. Lauderdale to Videotape All Homicide Interrogations , M IAMI H ERALD , Feb. 1,
2003, at 1A.
33
People v. Combest, 828 N.E.2d 583, 589 n.5 (N.Y. 2005). See also Thomas P. Sullivan, Electronic Recording of
Custodial Interrogations: Everybody Wins , 95 J.
C RIM .
L.
& C RIMINOLOGY 1127 (2005).
34 Police and Criminal Evidence Act of 1984.
35 See A USTRALIA
’
S T HIRD R EPORT UNDER THE I NTERNATIONAL C OVENANT ON C IVIL AND P OLITICAL R IGHTS art. 14 par.
816 (Mar. 1987 – Dec. 1995). http://www.law.gov.au/agd/Department/
Publications/publications/ICCPR3/Welcome.html.

introduce tape recording and video recording of interviews as equipment becomes available.
36
Also in Hong Kong, a Law Reform Commission Report on the Procedure Governing the
Admissibility of Confession Statements in Criminal Proceedings (July 2000) 37 reported favorably on the greatly increased use of videotapes in interrogations since 1985, police satisfaction with the use of videotapes, and the decrease in challenges to the admissibility of confessions as a result of videotaping. A group of 52 individuals and organizations commented on this Law Reform
Commission Report, recommending the greater use of audio or videorecording of interviews.
Non-governmental and international organizations have many times suggested recording of interrogations as a safeguard of compliance with treaty obligations under the Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and under the
International Covenant on Civil and Political Rights. For example, the United Nations Human
Rights Committee, in its 64th Session, responded to the report submitted by Austria on its compliance with the International Covenant on Civil and Political Rights by recommending implementation of audio-recording of interrogations in all Austrian jurisdictions.
38 In 1998, the
United Nations Special Rapporteur on Torture strongly recommended that the Spanish government give serious consideration to the video recording of police interrogations as a means of protecting both detainees and law enforcement officers who may be falsely accused of torture or ill-treatment.
39 The European Committee for the Prevention of Torture’s (“CPT”) 12th Annual
Report noted the increased trend of electronically recording police interviews:
The electronic (i.e. audio and/or video) recording of police interviews represents an important additional safeguard against the ill-treatment of detainees. The CPT is pleased to note that the introduction of such systems is under consideration in an increasing number of countries. Such a facility can provide a complete and authentic record of the interview process, thereby greatly facilitating the investigation of any allegations of ill-treatment. This is in the interest both of persons who have been ill-treated by the police and of police officers confronted with unfounded allegations that they have engaged in physical ill-treatment or psychological pressure. Electronic recording of police interviews also reduces the opportunity for defendants to later falsely deny that they have made certain admissions.
40
V.
P RACTICAL C ONCERNS
There are practical issues. Even if each police department has a videotape-equipped interrogation room, the many cases involving multiple suspects would present difficulties or delays in videotaping each suspect’s statement, and may require the purchase of additional video equipment. The need for a video camera operator in addition to the interrogator may increase the personnel burden. The minority view in the report of the Illinois Governor’s Commission on
Capital Punishment argued that mandatory videotaping would put an “unacceptable burden on law enforcement” and “significantly lower the successful clearance rate in investigations of serious crime.” 41 That opinion pointed out that in the early stages of an investigation the police may not have a clear understanding of the case or even know who the suspects are. Videotaping the questioning of all interviewees would significantly slow many investigations. In addition, the minority pointed out the potentially burdensome expense on law enforcement. Nevertheless, the minority still stated that videotaping should be encouraged, endorsing it. We believe that the economic considerations cannot outweigh both the practical benefit to law enforcement and the increased confidence in the outcome of criminal prosecutions.
36 Report on the Hong Kong Special Administrative Region under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, available at http://www.info.gov.hk/hab/paper/human1.htm.
37 http://www.info.gov.hk/hkreform/reports/rconfess-e.pdf.
38 http://www1.umn.edu/humanrts/hrcommittee/austria1998.html.
39 UN Documents E/CN.4/1998/38.
40 http://www.cpt.coe.int/en/annual/rep-12.pdf.
41 R EPORT OF THE G OVERNOR
’
S C OMM
’
N ON C APITAL P UNISHMENT (April 2002).

VI.
C AMERA F OCUS
One study found a very strong correlation between a jury’s determination that a statement was voluntary and the focusing of a videotaped statement exclusively on the subject, as compared to a tape showing both the subject and interrogator, an audio recording, or a transcript. In one trial-simulation study, the conviction rate doubled when the tape was changed from an equalfocus confession to a suspect-focused confession.
42 It seems clear that videotaping should be done with a focus on both the suspect and the interrogator. A 1992 study from England expressed a preference for videotaping both the suspect and the questioner, but also found a decrease in image quality from a picture including only the suspect.
43 In addition, that study found a significant number of camera failures and problems with sound quality. All of these practical obstacles are susceptible to straightforward solution. It would be indefensible to hold justice hostage to administrative ignorance of basic recording procedures, especially in an age that offers simple technical methods to provide accurate and reliable information about important evidence of guilt or innocence.
VII.
C ONCLUSION
The benefits of recording interviews are obvious and widely recognized. Where the practice has been implemented, law enforcement organizations, even those initially opposed, have almost universally found the practice beneficial. Some law enforcement concerns, such as the exposure of interrogation tactics and the fear that some juries might find them unacceptable, should not be given any weight in a democratic and open society. Likewise, defense objections that defendants will lose some tactical advantage in raising claims of coerced confession should be given no weight if the reason that advantage is lost is that clear evidence shows that there was no coercion. If the purpose of a trial is the determination of the truth, there can be no legitimate objection to a jury or the public learning the complete, relevant facts. Clearly, the full course of an interrogation is relevant to the truthfulness, accuracy, or voluntariness of a statement.
Legislation or court rule should require videotaping of all custodial interrogations in their entirety.
44 If it is not practicable to videotape an interrogation, it should be audiotaped in its entirety. The legislation or court rule should define the circumstances in which recording is required, and it should extend to questioning in police stations, courthouses, detention centers, and any location where suspects are held for questioning or detention. The rule may allow for exceptions in circumstances where the production of a recording is not feasible, such as where (1) the suspect refuses to be recorded, (2) properly maintained recording equipment has malfunctioned, or (3) equipment was, for good reason, unavailable. Legislation or court rule should provide for appropriate remedies for non-compliance and should also provide meaningful disclosure of the recording to criminal defendants, destruction of the recording when criminal charges are dismissed, and preservation of the recording at least until the conclusion of all direct appeals.
42
G. Daniel Lassiter et al., Videotaped Interrogations and Confessions: A Simple Change in Camera Perspective Alters
Verdicts in Simulated Trials , 87 J.
A PP .
P SYCHOL . 867 (2002). See also G. Daniel Lassiter, Illusory Causation in the Courtroom, 11
C URRENT D IRECTIONS IN P SYCHOL .
S CI . 204 (2002).
43 John Baldwin, Videotaping Police Interviews with Suspects – An Evaluation (Police Research Series No. 1, Home Office
Police Research Group 1992).
44 Although legislative action is preferable, the resolution calls for adoption of a recording requirement through either legislation or court rule, recognizing that some state courts have the power to do so, as evidenced by Alaska and Minnesota. See supra notes 18 & 19.

Use the facts below to develop your crime confession. One of you will be the accused criminal, the other the police officer. In the first part of the exercise, the police officer will either read the accused criminal’s confession, or describe the accused criminal’s confession to the class, while the accused criminal stays out of sight of the class. In the second part, the accused criminal will confess to the crime described below “on camera” in front of the class. The class will decide whose confession is more believable.

Last Friday, your teacher sat on a tack that had been placed on his/her chair. It was painful, and the teacher screamed.

The tack was strategically placed, with the point pointing upward.

The tack did not match of the teacher’s tacks, so he/she knows it had to have been brought into the classroom by an outsider.

One student’s family runs an office supply store, so that student would have had easy access to tacks.

Prior to the teacher sitting on the tack, that same student had been left alone in the classroom during lunch detention, while the teacher ran to the school office, and the other students were in the cafeteria.

The teacher is still looking for the culprit. So far, no one has confessed to putting the tack on the chair.
Use the facts below to develop your crime confession. You will be confessing to the crime twice: first “off camera” out of sight of the class but within their earshot; and secondly “on camera” with the class seeing and listening to your confession. The class will discuss which confession is more believable.

This morning, your school principal found a music video on YouTube, entitled, “My Principal’s Funny
Announcements,” showing images of your principal, and sound clips of the morning announcements at your school, set to a rap.

The voice in the video, singing the rap, sounded young, like a student.

The images in the video were school images, taken from the school website, but only available to students and faculty that would have the password to access the site.

One student in this class is very tech savvy, has video editing software at home, and knows just how to create such music videos.

The same student is often caught rapping to him/herself in the bathroom, alone at his/her locker, and while walking home.

After the YouTube video was posted, “My Principal’s Funny Announcements” became an instant hit, and even made the local news.

Your principal is very upset, wants to know who is responsible, but so far, no one has come forward.
Use the facts below to develop your

crime confession and questioning. One of you is the accused criminal, the other the police officer doing the questioning. The accused criminal should use the facts to prepare a confession, while the police officer should use the facts and example questions to create interrogation questions. For the first part of the simulation, the police officer will be questioning the suspect “off camera,” and the class will only see the suspect answering the questions. For the second part of the exercise, both the accused criminal and police officer will be seated in front of the class, “on camera,” asking questions and giving answers. The class will then decide which method—suspect only on camera or suspect and officer on camera—is most believable.
 Yesterday someone threw eggs at the head football coach’s car. Since yesterday was sunny and warm, and the football team was practicing after school, the coach did not discover his car until long after school had ended, and the eggs were all dried onto his vehicle.

The coach knows that the culprit had to have done this after school, as he’d stopped by his car before football practice to grab a towel, and everything was egg-free.

The coach is not sure if the culprit is on his football team or not. All of the football players were at practice at the time of the egging, said the coach.

One of the football players lives on a farm, where chickens produce many eggs.

There are other students not on the football team that also live on such farms.

Next to his car, on the ground, the coach found a copy of your latest school yearbook, championship basketball team t-shirt, and two footprints. The coach took a picture.

The coach believes that the culprit was tall, because he drives a tall vehicle, and the culprit reached the roof with the eggs.

The editor of the school newspaper received a Lost ad from a student, looking for their yearbook and championship basketball t-shirt.

The coach is searching for the culprit, who will be responsible for washing the coach’s car, making sure that all of the egg is gone. Do you know who is responsible? So far, no one has confessed.

Where were you yesterday after school?

Do you live on a farm, or have access to eggs?

Do you know the football coach?

Do you know what kind of car he drives?

Do you know where your yearbook is?

How about your championship basketball t-shirt?

May I take a look at your footprints?

How tall are you?