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Videotape Interrogations

The voluntariness of every confession in a criminal case is a question first for the trial judge and ultimately for the jury. Voluntariness and credibility are questions of degree. They depend on the suspect’s intelligence, maturity, and experience of the criminal justice system. They also depend on the means used by the police to persuade the suspect to talk. Promises of leniency, threats to others, emotional blackmail, psychological gamesmanship of the good cop/bad cop variety, hunger, thirst, fatigue, isolation and plain shouting and bullying can all raise reasonable doubt that an incriminating statement was made of the suspect’s free will. Unfortunately, the prosecution that is proffering a confession and the defendant who is repudiating it can have radically different accounts of what went on in the interrogation room.

The best and indisputable evidence of how the confession was obtained would be a timed and dated video record of the entire interrogation, from the first question to the eventual redaction of the statement. Such a record would allow the jury to see exactly how the confession was obtained, how the suspect was treated, and how he or she understood and responded to the process of questioning. Whether taping of interrogations should be required, at least in homicide cases, is now before the Supreme Court in State v. Cook.

In a previous editorial [" Better Than a Thousand Words," 173 N.J.L.J. 390, Aug. 4, 2003], we urged that the Attorney General establish a task force to promulgate a policy on the recording of interrogations and confessions. Attorney General Harvey undertook a joint study with the County Prosecutor’s Association; no members of the defense bar were involved. Not surprisingly, the joint “ Interim Policy Statement” of the attorney general and the association is utterly one-sided, and it falls far short of what is required.

The Interim Policy Statement piously recites that its authors “are aware of no case in New Jersey where an innocent person has confessed to a crime as a result of police misconduct.” These are, of course, the same authorities who were for so long unaware of racial profiling by the State Police. Having declared that there is no real problem, the Interim Policy Statement then proceeds to recommend a solution that protects only the interests of the police and prosecution. In order to cut off claims that the accused did not actually make the statement attributed to him, it recommends that, when the suspect is asked to make a final written statement, the statement itself or the suspect’s acknowledgement of the statement should be electronically recorded when feasible. This may be done openly or “surreptitiously at the discretion of the investigating officer.” There is no reference at all to recording the interrogation that led up to the statement.

Taping the confession without taping the interrogation is worse than nothing. The jury will see a cleaned up and refreshed defendant unquestionably saying what the prosecution claims he said. It will see nothing of the sometimes-unlovely process that got the defendant to admit his guilt. It will not see whether the defendant was cocky and streetwise or naïve, trusting and bewildered. It will not see whether he wanted a lawyer and was talked out of it. It will not see whether he was promised or threatened with anything, or whether he was lied to about the strength of the police case. It will not see if he was fresh and alert, drooping with fatigue, or perhaps in pain or drug withdrawal. The prosecution will have the incontrovertible tape of the defendant confessing his guilt. The defendant will have only his own self-interested and dubiously credible story of why he said what he said.

There is no legitimate reason why all stationhouse interrogations, at least in homicide cases, should not be recorded and used to establish whether a confession was voluntary. If the attorney general is recommending that confessions should be taped, the cost of the equipment is not at issue. Nor could it be, in an age when every police car has a video camera to record traffic stops.

We suspect that the real reason not to record interrogations is the fear that jurors might not understand or accept how confessions are sometimes obtained. That is not legitimate. The jurors are the ultimate judges whether a confession was given out of the defendant’s free will. That makes them, in practice, the ultimate judges of whether the police acted fairly when they questioned him. What constitutes “police misconduct” in questioning is ultimately for the citizens who pass on the guilt or innocence of the accused.

We are confident that in the overwhelming number of cases, a complete record of the interrogation will vindicate the questioners and put the confession’s voluntariness beyond doubt. We are equally sure that in a few cases, a full video record of how the suspect was questioned will raise reasonable doubt that it was voluntary. With modern video technology as cheap and reliable as it is, defendants are entitled to have the best evidence of the interrogation process preserved and produced.

Confusing Message and Mission

Seton Hall University Law School celebrated its 50th anniversary last week and has a lot to be proud of. It has become a very competitive institution with a diverse and talented faculty, active clinics and a first-class space in downtown Newark.

It was therefore disconcerting to hear once again that the law school was rebuked by the Newark Archdiocese for honoring two prominent jurists because of their stance on abortion in their rulings. The recent appearance of Justice Sandra Day O’Connor and the presentation of an award in her name by three Law School organizations to Judge Maryanne Trump Barry was sharply criticized by Archbishop John Myers of Newark as “offensive and contrary to the Catholic mission and identity of Seton Hall Law School.” A school spokesperson stated there would be a review of these types of awards.

No one can deny the law school has the right and ability to maintain a Catholic mission and identity. However, the mission of a law school is to provide sufficient academic freedom to allow diversity in thought as well as in the student body. One could hardly imagine officials of the diocese monitoring or censoring a constitutional law class discussing Roe v. Wade. It is not the church teaching such a class but a professor. Similarly, it is not the university or the diocese or even the law school giving an award to jurists whose opinions did not decry abortion, it is law students through the law school’s Law Review, the Women’s Law Forum and the Legislative Bureau.

In 2000, Justice O’Connor sided with a 5-4 majority that struck down a Nebraska law forbidding partial-birth abortion, on the grounds it could criminalize other types of abortion and did not make an exception when a woman’s health was at stake. Judge Barry wrote a 2000 decision striking down New Jersey’s law that banned partial-birth abortions, saying it was too vague. In 1998, a similar award ceremony for former Gov. Christie Whitman was ordered held off-campus because she had vetoed a bill banning late-term abortions. The late U.S. Supreme Court Justice William Brennan, one of the most prominent Catholic jurists in this nation’s history, was denied any honor at the law school, presumably because of his vote on Roe v. Wade.

Archbishop Myers stated that Justice O’Connor and Judge Barry “have demonstrated a lack of support for pro-life issues.” Justice O’Connor’s vote was based on her interpretation of previous Supreme Court decisions and the Constitution. Judge Barry as an intermediary court judge is bound by Supreme Court and Third Circuit precedents. Moreover, no one can seriously argue that either was honored solely because of these votes. Each has a legacy of decision making on myriad subjects.

It is a shame that the difference between the church’s imprimatur and sponsorship by student organizations cannot be identified and stressed by the diocese and the law school so that the law school can stress support for its Catholic mission and at the same time allow the same freedom of expression that it teaches in its classrooms, rather than impose a litmus test for honorees by student organizations.

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