The Innocence Project, an organization dedicated to exonerating the wrongfully convicted by means of DNA testing, has to date been responsible for freeing 197 people from unjust imprisonment. By examining the particulars of wrongful conviction cases, the Innocence Project has also identified several factors contributing to these miscarriages of justice. One such factor is false confessions, which can occur when innocent suspects succumb to the intense psychological pressure that is a ubiquitous feature of today’s police interrogations in the United States. In fact, false incriminating statements made by suspects during detention played a role in more than 25% of the wrongful-conviction cases in which the Innocence Project has been involved. In response to these troubling facts, many scientific, legal, and political leaders have called for mandatory videotaping of custodial interrogations. Proponents argue that videotaping interrogations will discourage the police from using highly coercive techniques to elicit confessions, and the resulting audiovisual record will permit later trial fact finders to more accurately assess the voluntariness and veracity of suspects’ statements. However, policies requiring videotaping should be carefully considered so as to minimize the potential drawbacks of the procedure as suggested by psychological research.
Law Enforcement’s Mixed Reactions to Videotaping
Over the past 25 years, there has been considerable ambivalence within the law enforcement community concerning the videotaping of interrogations and confessions. Long before the first DNA exoneration case in 1989, the police in some jurisdictions took the initiative and began experimenting with the videotape recording of at least portions of the questioning of detained suspects. For example, by the early 1980s, the district attorney’s office in one borough of New York City had access to approximately 3,000 videotaped admission statements. According to statistics maintained by that office, videotaping produced an 85% guilty-plea rate and a nearly 100% conviction rate. In contrast, other jurisdictions have adamantly resisted the call for mandatory videotaping of custodial interrogations. Those in law enforcement opposing the videotaping movement have argued that the cost of equipment, storage, and transcription of videos is an undue burden for jurisdictions with limited budgets. Moreover, they fear that suspects will be hesitant to talk in the presence of a camera; judges and juries will disapprove of certain legally permissible interrogation tactics commonly used (e.g., lying about the amount and kind of evidence incriminating a suspect), thus rejecting the confession evidence as unreliable; and requiring videotaping will impugn the integrity of law enforcement agencies that have worked diligently to earn a reputation for honesty.
In the past 15 years, two large surveys have been conducted to assess the extent to which law enforcement agencies were videotaping at least some interrogations and/or confessions and their reactions to this procedural modification. The first was a report to the National Institute of Justice in 1992 by William Geller, who estimated that approximately one-third of law enforcement agencies serving populations of 10,000 or more recorded interrogations, or parts thereof, on some occasions in the late 1980s. Importantly, Geller found that the police, who had experience with videotaping, expressed strong support for the practice. As a member of the San Diego police put it, “Not using video would be like not using state-of-the-art fingerprint analysis equipment. If better technology comes along, and its cost is reasonable, the police should experiment with it if there is a reasonable chance that it can assist them in their work” (p. 153).
The second report by attorney Thomas Sullivan in 2004 similarly found positive responses from those departments videotaping custodial interrogations. The following are some of the reasons mentioned by officers in Sullivan’s report for embracing the videotape practice: It eases the public’s concerns for how suspects in custody are treated; it eliminates the need for extensive note taking, so that officers can better observe suspects’ nonverbal behavior; videotapes serve as a useful teaching tool for demonstrating appropriate interrogation techniques; and subsequent viewing of videotapes can reveal incriminating information missed during the live interrogations. Sullivan believes that once the police try videotaping, they will not want to go back to older methods, and he argues that the widespread acceptance of this practice will “benefit suspects, law enforcement, prosecutors, juries, trial and reviewing court judges, and the search for truth in our justice system” (p. 28).
Compelled Recording of Interrogations by Court Order or Legislative Statute
The electronic recording of interrogations was mandated for the first time in the United States by the Supreme Court of Alaska. The court’s ruling issued in 1985 was based on the state constitution’s due process clause. The justices reasoned that “recording…is now a reasonable and necessary safeguard, essential to the adequate protection of the accused’s right to counsel, his right against self-incrimination and, ultimately, his right to a fair trial” (Stephan v. State, 1985). Nine years later, the Supreme Court of Minnesota also ruled for compulsory videotaping, stating that “an accurate record makes it possible for a defendant to challenge misleading or false testimony and…protects the state against meritless claims” (State v. Scales, 1994). Decisions by state Supreme Courts in Massachusetts, New Jersey, and New Hampshire fell short of ruling that their state constitutions mandate recording of interrogations. Nevertheless, in each of these states, the highest court held that failure to offer a custodial recording at trial could be a basis for the presiding judge to suppress any purported confession offered by the prosecution. Furthermore, should the judge admit an unrecorded confession into evidence, it was held that the jury would be instructed to exercise great caution in the weight given to the prosecution’s claim that the defendant made self-incriminating statements. These decisions have generally led many police departments in these states to implement custodial recordings to avoid the possibility of their confession evidence being thrown out or having it greatly diluted by unfavorable jury instructions.
In 2004, Illinois became the first state to require by statute complete custodial recordings. Following Illinois’s lead, Maine, New Mexico, Wisconsin, and the District of Columbia have since enacted similar recording legislation. Several additional states have prorecording bills currently under legislative consideration.
Possible Drawbacks of the Videotaping Practice
As the foregoing discussion suggests, all indications are that the videotaping of in-custody interrogations will become a standard law enforcement practice. It is therefore prudent to consider any possible downsides associated with the videotaping procedure or with the manner in which it might be specifically implemented.
One concern is the potential prejudicial effect of the police choosing to record the suspects’ final confession but not any of the interrogation that preceded it. Both Geller and Sullivan noted in their survey reports that such “recap videotapes” are not unusual. Recap videotapes are potentially problematic for two reasons. First, recaps may convey to trial fact finders that the confession was more voluntary than they would otherwise perceive it to be if the interrogation in its entirety was available for them to observe. Second, recaps often are recorded after suspects have been asked to recount their stories multiple times. By the time the camera is rolling, their statements may be accompanied by little of the emotion and agitation that might have been present the first time they revealed the self-incriminating information. Recap videotapes, then, may make suspects appear far more callous and unremorseful than is in fact the case, which in turn could bias the jury against them. Awareness of this issue has led most courts and legislative bodies that have made custodial recordings compulsory to spell out clearly that the entire interrogation must be recorded—from the Miranda warning to the end of the session.
Fundamental Attribution Error
Even if judges and jurors have the opportunity to view an entire interrogation videotape, it may still be an extremely difficult task for them to accurately assess whether or not a confession was voluntarily given. A vast amount of research on social judgment demonstrates that observers tend to attribute people’s actions to internal causes (i.e., to their dispositions or intentions) even when external forces or pressures in the situation (e.g., orders from an authority figure) could readily account for their actions—a phenomenon known as the fundamental attribution error. The U.S. Supreme Court in Lego v. Twomey (1972) expressed the view that jurors are readily capable of differentiating voluntary from involuntary confessions and thereby discounting the latter. However, the pervasive tendency for people to commit the fundamental attribution error should serve as a warning that the task of evaluating the voluntariness of suspects’ statements made during an in-custody interrogation designed explicitly for the purpose of extracting a confession is not necessarily as straightforward as it might seem. Consistent with this point, laboratory research has shown that mock jurors asked to consider a suspect’s self-incriminating statements, which came on the heels of very obvious high-pressure tactics on the part of an interrogator (e.g., he waved his gun in a menacing manner), were unable to completely discount the confession in rendering their verdict.
Differentiating True From False Confessions
As noted at the outset, one of the primary reasons why proponents of the videotaping practice are so insistent about the need to adopt this approach is their belief that a videotape record of an interrogation will make it possible for judges and juries to more readily catch false confessions that make their way into the system. Years of scientific studies on people’s ability to accurately distinguish truthful from untruthful statements, however, indicate once again that commonsense notions may be largely incorrect. The consensus among researchers who study the detection of falsehoods is that people generally do little better than chance when it comes to separating lies from the truth. Even those who receive special training to increase lie-detection skills seldom show significant improvement; alarmingly, they sometimes perform worse after training than before.
An especially disturbing implication of the literature on lie detection for the videotaping practice is that people perform relatively worse when they rely primarily on visual cues, particularly those emanating from a person’s face, when trying to make veracity judgments. Consistent with this pattern, a recent study found that people were better at differentiating true from false mock confessions when they listened to an audio recording or read a transcript of an interrogation than when they viewed a full videotape version that featured a close-up of the suspect’s face. People tend to believe that they can tell from closely observing another Peterson’s face whether he or she is speaking untruths, but the scientific evidence suggests otherwise.
Camera Perspective Bias
A final issue concerning the videotaping practice that should be taken into account is the perspective of the camera when the interrogation is initially recorded. This may appear at first to be an inconsequential factor, but a growing body of research indicates that it may have profound effects on the conclusions drawn by triers of fact who later evaluate videotaped confessions. A considerable body of research indicates that an observer attributes unwarranted causality (influence) to objects and other people when they stand out in his or her visual field or are the focus of his or her attention—a phenomenon referred to as illusory causation.
Based on such demonstrations, Lassiter and his colleagues (2006) hypothesized that videotaped confessions recorded with the camera focused on the suspect would lead observers to assess that the suspect’s statements were more voluntary and conclude that the suspect was more likely to be guilty than if the camera focused on the interrogator or on both the suspect and the interrogator equally. Two decades of research have confirmed this hypothesis. Videotapes that show both the suspect and the detective in profile (an equal-focus camera perspective) produce evaluations that are comparable with those based on more traditional presentation formats—that is, audiotapes and transcripts. Lassiter and his colleagues have therefore recommended that any legislation requiring videotaping of custodial interrogations should also specify that an equal-focus camera perspective be used at the time of the initial recording.
- Geller, W. A. (1992). Police videotaping of suspect interrogations and confessions: A preliminary examination of issues and practices (A report to the National Institute of Justice). Washington, DC: U.S. Department of Justice.
- Lassiter, G. D., Ratcliff, J. J., Ware, L. J., & Irvin, C. R. (2006). Videotaped confessions: Panacea or Pandora’s box? Law and Policy, 28, 192-210.
- Lego v. Twomey, 404 U.S. 477 (1972).
- State v. Scales, Minn. 518 N.W.2d 587 (1994).
- Stephan v. State, Alaska, 711 P.2d 1156 (1985).
- Sullivan, T. P. (2004). Police experiences with recording custodial interrogations. Chicago: Northwestern University School of Law, Center on Wrongful Convictions.