Wanna Use My Confession? Then Record It.
If you want to short the circuits of an FBI agent, agree to talk to him, but only on the condition that you are permitted to tape record, or, even better yet, video record, your converation. Odds are, the agents will flush a deep red, stammer something about that not being possible, and then bluster with some veiled threat or another. The feds, like most law enforcement agencies, have a policy against electronic recording of statements. There is no good foundation for that policy in law or in fact.
It used to be that officers claimed the technology to record statements was not available. Why that was the case when radio shack carried analog recorders that cost no more than a couple of dozen donuts was a mystery to me, and many are the lawmen I have challenged on cross-examination about why the piddling expense of a recording device was too much to bear in the search for the truth. The fallback position was the law enforcement version of the Nuremberg defense: "I am just following orders. Departmental policy does not require recording. I don't know why the policy exists."
This silliness is even less sustainable in the digital era. Now, most folks carry a recording device on them at all times. Most cell phones have the capacity to record audio; the better ones can even record video. There's really no factual excuse for failing to record.
Yesterday's New York Times reminded us yet again of why recordings are necessary: Innocent men and women are persuaded by police officers to confess to crimes they did not commit. It happens with disturbing regularity. Men and women spend decades behind bars for these crimes. And still there is no hue and cry among law men about the injustice of it all. The Times reports on a study by University of Virginia School of Law Professor David Garrett that demonstrates dozens of defendants have been exonerated of crimes they confessed to once the DNA evidence in their case was tested. Innocent men, I repeat, confess, and they do so after being left along with police officers who "tune them up" to tell the truth.
Left alone with defendants, and especially the mentally infirm, the young and the vulnerable, law men can easily contaminate an interview by providing inculpatory information to people being interrogated. At trial, these isolated facts are often dressed up as facts that only the perpetrator would know. In an ideal world, a witness's statement is paraded before the jury with great solemnity: No innocent man confesses, the prosecutor intones. Of course, the jury never gets to see the pre-interview shakedown, a process that can often last for hours and during which officers use the skills they have been trained to use to break down a person's will to resist. Those techniques rarely involve the physical bruising "third degree." Today the force used is more subtle; it leaves no scars that can be seen. The methods used to break a person down are psychological, and without a recording, no juror ever gets to see what really goes on at the police station.
On the federal level the game has a name: I call it the 302 Blues. You speak to federal agents. There is always a federal agent sitting by taking detailed notes. When the interview is over, this agent writes up a typed report summarizing what you have said. The agent then is ready to testify live and in person against you if you offer testimony at variance with the 302. Just which version of fool's paradise requires us to trust our liberty to the integrity of the FBI? It is a felony under federal law to give a false statement to the feds, whether that statement is under oath or not. Edgar, Edgar, why has thou forsaken me?, many a man cried from a cross when wicked lawmen bent the truth to crucify them.
Confession evidence is powerful and damning. A person can be convicted based solely on their confession. Because the risk of a false confession is so great, it seems to me that the state ought to be given a choice: If you want the opportunity to use a person's words against them, you must record the entire interview you conduct with that person: not just the pretty part you rehearsed and want the fact finder to see.
I like this rule as it avoids the inflexibility of a categorical rule requiring confessions in all cases: There may be circumstances in which a tape recording cannot be obtained, but exigency requires a confession, such as, let's say, in Alan Dershowitz's "ticking time bomb" hypothetical. Save the world if you must, but please, not at the expense of the presumption of innocence.
I say give lawmen choices. But let's protect the accused, too. If the police want to use a confession against a person, then require them to record it. There is no excuse to do otherwise.
In the meantime, don't be bullied. If the cops want to talk, press the record button on your telephone. If the cops flee and refuse to talk to you with a recording device on, save that tape. It might just save you from a lengthy prison term when Agent Feel Good has to explain to a jury why he was afraid of a simple recording of the means he uses to search for the truth.