A Sept. 21 article in the Law Journal, “NYPD Adds Taping, Sparking Discussion of Further Initiatives,” described Commissioner Raymond Kelly’s plan to expand the videotaping of interrogations to all 76 precincts. Although the New York County Lawyers’ Association (NYCLA) supports the NYPD’s plan, the association calls for legislation to mandate law enforcement agencies to videotape in their entirety the custodial interrogations of crime suspects, or audiotape if videotaping is impractical.

NYCLA has called for the recording of police interrogations since it believes that by recording interrogations, definitive records will be created that will help ensure confessions are obtained without coercion or inappropriate conduct by law enforcement officers. While Kelly’s new program is a welcome expansion of the recordation practice, it is no substitute for legislation. A state law requiring the recordation of the entirety of a custodial interrogation is the only way to ensure uniform, enforceable procedures that can truly promote fairness and accuracy, and minimize the risk of wrongful conviction.

It has been recognized throughout the country that while such voluntary programs by police departments are encouraging, they are no substitute for legislation or compulsory court rule. These programs, including the one announced by Kelly, lack formal protocols, do not include enforcement mechanisms, provide no remedy for non-compliance, and only apply to homicides and sexual assault cases. More importantly, law enforcement tends to use the establishment of these programs to defeat legislative efforts to formalize the practice and establish the necessary protocols, enforcement and remedies.

The New York State Justice Task Force, established by Chief Judge Jonathan Lippman, adopted Recommendations Regarding Electronic Recording of Custodial Interrogation in which the task force noted admirable efforts by some law enforcement throughout the state to implement recording but stated that this should be a mandatory reform. NYCLA also issued a report, “The Report on the Electronic Recording of Police Interrogations,” researched and written by its Civil Rights Committee in 2003. The report, which was later approved by both the New York State Bar Association and the American Bar Association, was based on research of more than 200 law enforcement agencies in 38 states. It found that recording interrogations saves time and money and serves as compelling evidence. The survey, which was conducted by the Center for Wrongful Convictions at Northwestern University, found that the taping of interrogations is relatively uncommon, with 238 police departments taping entire interrogations in serious cases out of 18,000 state and local law enforcement units nationwide.

Stewart D. Aaron
The author is president of the
New York County Lawyers’ Association.