How to Prevent Wrongful Convictions: Mandatory Recording of Interrogations

We have all seen it before. Someone gets convicted of a crime they say they didn't commit, yet they confessed. The confession acts as the strongest piece of evidence that outweighs any reasonable evidence to the contrary. Then, sometimes years later, 20/20 or Dateline NBC or 60 Minutes profiles the case because the person was released after post-conviction DNA testing conclusively proved that they didn't commit the crime.

The question still remains, however, why did this person confess if they didn't do it? Then these television investigative programs present evidence of long, coercive interrogations which, in many cases, didn't come out at the time of trial. Instructive is the case of Chris Ochoa, who confessed to a rape and murder that he didn't commit, after police told him he would get the death penalty otherwise:

Ochoa and his lawyers insist that his confession and his testimony were a fabrication coerced by police who had given him a Hobson's choice. "He was made to feel that he was doomed one way or the other," says Keith Findley, a lawyer with the Wisconsin Innocence Project who is working on the case. "His doom could either be death or it could be [life in] prison."

But with a life sentence came another ugly reality. The police were convinced that Ochoa and Danziger had committed the crime together, and in exchange for avoiding a death sentence, Ochoa had to take Danziger down with him. "That was part of the plea bargain. He had to testify against [co-defendant] Danziger," Findley said

. . .

But if Ochoa's confession and his testimony at Danziger's trial were all lies, where did he get the facts -- and the story line -- that allowed him to appear completely credible to the judge and jury? . . . Ochoa's lawyers say he got his story line and the key crime scene facts from the police. "There isn't any way [Ochoa] would have known the facts about the case unless they told him the facts about the case," says Bill Allison, an Austin attorney representing Ochoa.

Allison doesn't believe the police necessarily fabricated their case against Ochoa, but that they "violated every rule of taking down a statement that you can violate." Ochoa asked for a lawyer the first day he was interrogated but was denied one on the ground that he hadn't been charged with anything. "The invocation of asking for a lawyer should have stopped the interrogation at that point," says Allison, who claims the police were "feeding him [Ochoa] facts about the case" as they questioned him.

Cases like that of Chris Ochoa are the reason why Florida needs to make it the obligation of every law enforcement agency in the state to record the entirety of every interrogation, from the moment they begin speaking with the suspect until the end of the interrogation, including the confession if there is one. On April 1, 2008, Russell Smith, President of the Florida Association of Criminal Defense Lawyers authored an op-ed in the St. Petersburg Times on this very issue:

Often, the court's ruling about whether a suspect was given his rights; whether a police officer intimidated him into confessing; or whether the confession ever really occurred amounts to little more than an educated guess. This diminishes the reliability of the criminal justice system, wastes tax dollars, and ties up judges, lawyers and police officers in court.

The Florida Legislature has a unique opportunity to enhance the integrity of the criminal justice system while saving the taxpayers money, by enacting legislation requiring the recording of felony interrogations by law enforcement. House Bill 721 and its companion, Senate Bill 1434, would require just that.

We know that false confessions occur. In 26 percent of cases where DNA later exonerated a wrongfully convicted person, police claimed that person confessed, even though science later proved he could not have committed the crime. Research shows murder cases make up 81 percent of the total number of crimes in which defendants falsely confessed. This doesn't just mean that innocent people are going to prison for murder, it means that murderers are remaining free, because investigations are being closed after the wrong person is arrested.

But this won't just help prevent wrongful convictions, it is squarely a pro-law enforcement measure that prevents real evidence of guilt from being thrown out of court because of false, but successful claims of police misconduct in performing the interrogations. Smith highlights one important instance where video recording would have helped law enforcement immensely:

John Couey's confession in the Jessica Lunsford murder case in Citrus County was thrown out of court because the judge decided that he may have asked for a lawyer during questioning, something the police swore he never did. Had that interrogation been recorded, the judge wouldn't have had to guess who was right. He would have been able to review an actual recording of the interrogation.

With mandatory recording of interrogations, most suspects' claims of improper police conduct disappear. The courts have to conduct fewer suppression hearings, and those few remaining hearings are shorter. When criminal defendants are confronted with a recording of their confession, more of them plead guilty rather than insisting on jury trials. The FBI recommends felony interrogations be recorded, saying that electronic recordings "help enhance an officer's credibility" and "increase public confidence in police practices."

More than 11 states and 5,000 local jurisdictions require interrogations to be recorded, and prosecutors and police in those jurisdictions believe that the recordings are an asset to their cases. Not one jurisdiction that has adopted mandatory recording of felony interrogations has ever repealed the legislation.

Although it does not appear that House Bill 721 and its companion, Senate Bill 1434 are going to pass this year, we must pass these important measures to inject a dose of reliability into our criminal justice process.

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