The Volokh Conspiracy
Judge Kozinski on reforms that can help prevent prosecutorial misconduct
By Eugene Volokh July 17
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4. Video record all suspect interrogations. The surprising frequency of false confessions should make us deeply skeptical of any interrogation we cannot view from beginning to end. Suspects are frequently isolated and pressured in obvious and subtle ways, and when the process ends we often have very different accounts of what happened inside the interrogation room. In those circumstances, whom are we to believe? Most of the time, the judge and juries believe the police.
There may have been a time when we had to rely on such second-hand reports, but technology has now made this unnecessary: Video recording equipment is dirt cheap, and storage space for the resulting files is endless. No court should ever admit a confession unless the prosecution presents a video of the entire interrogation process from beginning to end. [Footnote: This practice has been adopted in England, Ireland and Australia, where the general rule is that all interrogations — and not just confessions — must be recorded on audio or video. However, Australia is the only country that explicitly provides that the consequence for failing to record is inadmissibility of the contents of the interrogation. In addition, a number of states, including Alaska, Arkansas, Minnesota, Montana and New Jersey, require all interrogations to be recorded and consider compliance with that requirement a factor in determining whether a statement made in an interrogation is admissible.]
It appears that change is underway. Just last year, the Justice Department reversed its century-old prohibition against recording interrogations and adopted a policy “establish[ing] a presumption that the Federal Bureau of Investigation (FBI), the Drug Enforcement Administration (DEA), the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), and the United States Marshals Service (USMS) will electronically record statements made by individuals in their custody.”
[Footnote moved: In fact, why don’t police officers wear body cameras at all times? It would protect the suspect and the police officer. See Steve Tuttle, Cambridge University Study Shows On-Officer Video Reduces Use-of-Force Incidents by 59 percent, TASER Int’l (Apr. 8, 2013) (the use of “officer worn cameras reduced the rate of use-of-force incidents by 59 percent” and “utilization of cameras led to an 87.5 percent reduction in complaints” by citizens against police officers); see also U.S. Dep’t of Justice, Implementing a Body-Worn Camera Program: Recommendations and Lessons Learned (2014).]
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If I ever get on a jury — which is so very unlikely when they ask you what bumper stickers you have on your car —then I would n’t believe anything a Gooferment employee says.
Show me the victim and the video tape, then I’ll convict.
Otherwise, you have an uphill trek to convince me.
Whatever happened to the ethos that better a 100 guilty men go free than one innocent man got to jail?
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