Ten years ago the Massachusetts high court, fed up with hearing “repeated pronouncements” about the fabulous benefits of recording police interrogations, decided to do something about it. Commonwealth v. DiGiambattista (2004). Cops don’t record interrogations? Fine. But if the prosecution comes waltzing into court with nothing but Detective Blow’s “recollection” that the defendant (after some conversation) confessed to the crime — then they haven’t met their burden of proof.
In Massachusetts, as in New York, a confession is inadmissible unless the prosecution proves that it’s voluntary beyond a reasonable doubt. When a suspect starts out denying guilt and ends up confessing, the obvious question is, what did Detective Blow say or do to make him change his mind? The detective may swear up and down that he didn’t make threats or promises, and maybe he really believes that, but as the NY Court of Appeals said in the context of proving probable cause to arrest, the prosecution has to provide “facts, not assurances.” And the only way to provide complete, reliable facts about the interrogation is by recording it.
The Baked Beans stopped short of holding that unrecorded confessions are inadmissible. Instead they ruled that the defendant is entitled to have the court tell the jurors that they could, if they wished, conclude from the absence of a recording that the prosecution had failed to prove voluntariness beyond a reasonable doubt, and therefore not consider the confession.
And you know what, Ladies and Gentlemen? The police started videotaping interrogations!
The NY Court of Appeals recently had the chance to do the same and blew it. People v. Durant (NY 2015). The decision, taken almost entirely from the amicus brief of the NY State District Attorney Junta, mischaracterizes the defendant’s argument as a proposal to “invariably” “compel” a court to “automatically” give an adverse inference charge “in every case” without a recorded confession. It then diverts the issue into the cops’ motives for not recording. According to the court, the cops had “no idea” that they were creating evidence for the prosecution when they isolated 22-year old Everett Durant in the interrogation room, handcuffed him to the table, told him he was facing serious charges, responded to his denials by saying it could be in his best interest to talk, and that if he didn’t, his side of the story would never come out. (The latter facts being omitted from the decision). Therefore, says the court, the cops’ failure to record was simply “an innocent oversight” or “a legitimate adherence to a neutral departmental policy.” For which it would be terribly unfair to “penalize” the People.
If the court had taken its nose out of the DA Junta’s brief long enough to fairly consider the defense argument, it would have seen that it’s not about what the cops do or don’t do, but about the People’s meeting their burden of proof. For all we care, the cops can sit around conducting unrecorded interrogations til the cows come home. The issue is whether the People can claim, let alone prove beyond a reasonable doubt, that the resulting confession was voluntarily made, based on nothing but Detective Blow’s word for it.
The decision concludes with assurances that there are many “worthy proposals” kicking around for the recording of police interrogations. But not even the Junta’s brief describes any actual practice of recording police interrogations except to say that police agencies have swallowed over $3 million to buy equipment. The court thinks we should wait for the passage of Assembly Bill A7063 requiring the cops to record interrogations if it’s not too inconvenient. If you look up the bill, you’ll see it’s designated as “referred to Codes” –legislative-speak for stuck in the Sargasso Sea.
Years of worthy proposals and “repeated pronouncements” are all the more reason for the NY high court to say, as their Massachusetts brethren and sistren did, enough with the chin music. Maybe we can’t tell the cops what to do, but we can certainly tell the jury how to weigh dubious evidence that it might otherwise overestimate.
Still, the decision leaves open the argument that in your case, if Detective Blow doesn’t remember everything that was said, his testimony doesn’t amount to a hill of beans, let alone proof beyond a reasonable doubt that the confession was voluntary. Move for suppression, and if you don’t get it, move for that jury instruction. As our yoga tape advises, “The key to lasting success is to keep at it.”