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Due process does not require police to videotape custodial interrogations, but the judiciary could decide to mandate the practice in the exercise of its supervisory authority over the administration of justice, the state Supreme Court has ruled. “The proverbial ‘time has arrived’ for this Court to evaluate fully the protections that electronic recordation affords to both the State and criminal defendants,” Justice Jaynee LaVecchia wrote last Monday in State v. Cook, A-66-02 . To that end, the Court said it would name a committee to recommend “whether and how to implement the benefits of recording electronically part, or all, of custodial interrogations.” The ruling came four weeks after Attorney General Peter Harvey announced that an advisory committee formed with county prosecutors had adopted an interim policy of taping final statements by murder suspects “whenever feasible.” [ See full text here. ] The Court voted, 5-1, to uphold the 1998 murder conviction of Thomahl Cook, rejecting defense arguments that his untaped confession should have been excluded on due process grounds. After considering the policies and practicalities of a taping requirement, the majority concluded that because of “fair-minded disagreement concerning the appropriateness of imposing a sweeping requirement of electronic recordation of custodial statements we hold that defendant’s point of error is not of constitutional dimension.” The adequacy of “current standards for voluntariness and trustworthiness” to assess admissibility of confessions also militates against a due process requirement, the Court said. The Court noted that only one other state’s high court, Alaska, has held that due process requires electronic recording of interrogations. Stephan v. State, 711 P.2d 1156 (1985). Minnesota’s Supreme Court imposed a recording requirement but acted on the basis of its supervisory power over the courts rather than on due process grounds. State v. Scales, 518 N.W.2d 587 (1994). Two other states, Illinois and Texas, have passed taping legislation. The overwhelming majority have declined to make taping mandatory. The New Jersey Court, like Minnesota, invoked its supervisory role and its “responsibility to guarantee the proper administration of justice” in deciding that the taping issue merits a broader inquiry. It would be “inappropriate” to impose such “sweeping changes in law enforcement practices . . . without notice and without permitting thorough consideration of the policy and financial implications of those changes,” said the Court. Among the issues the committee will address is whether to create a presumption against admitting unrecorded statements or to encourage recording through other means. The committee should balance the benefits of taping against “the legitimate needs of law enforcement,” wrote LaVecchia. Reality TV Justice Virginia Long, the lone dissenter, preferred an immediate declaration that all criminal interrogations are to be recorded but thought a committee was a good idea to work out the details. “Why we should suffer, for one more day, the funneling of the reality of an interrogation through the lenses of partisans, with the concomitant frailty of language and recollection, when a true recording could be made is simply beyond me,” Long wrote. Justice Barry Albin did not take part in the case. The attorney general’s interim policy requires a documented reason for not taping, a committee recommendation in six months on whether to expand taping to other crimes and earlier stages of interrogation, and the institution of procedures to keep track of the costs and benefits of electronic recording. Burlington County Prosecutor Robert Bernardi says his county recently taped its first confession under the program, with police bringing the suspect to his office to use the equipment. The Cookdecision “reaffirms what we thought all along, that there is no constitutional right to videotaped statements,” says Bernardi, president of the county prosecutors association. Though Bernardi agrees that the time for videotaping has probably come, he lauds the Court’s recognition of the complexities that first need to be explored. He mentions technical hurdles like lost tapes, equipment failure, dead batteries and officers without proper training. Division of Criminal Justice Director Vaughn McKoy likewise applauds the Court’s take-it-slow approach. “Let’s do the analysis first,” he says. He is uncomfortable with the idea of a presumption against admitting untaped confessions, asserting it could bog down the process. Police station interrogations are one thing, he says. But “what if you have a defendant in custody who wants to confess right now?” for example, at home or in the police car. “Are you going to require every cop to carry a video camera in his car?” He and Bernardi acknowledge that taping is a double-edged sword that can prove a confession was not coerced and deter baseless challenges to admissibility. The benefits for law enforcement were reinforced during a meeting last week where a Minnesota colleague told them of that state’s 10-year-old experience with videotaping. A suspect denied committing serial murders, claiming he could not have done them because he was blind. But when prosecutors took a break and left him in the room, a camera caught him reading. Legislation also is pending that would establish a broader pilot program to encompass more crimes and cover the entire interrogation process. S-287, introduced by Sen. Nia Gill, D-Essex, on Jan. 13, would require an electronic record in the form of a motion picture, videotape, audiotape or a digital recording of police questioning for a panoply of violent crimes. It would apply to any interrogation in which a reasonable person would consider himself to be in custody and “during which a question is asked that is reasonably likely to elicit an incriminating response.” A report on the program would be required within two years. The measure has languished in the Senate Judiciary Committee, drawing neither additional sponsors nor a companion Assembly bill, but Gill says it will come up for a hearing before the summer recess. The attorney general’s pilot program does not render S-287redundant because the program does not require taping the questioning process that leads to a confession, says Gill. She hopes that the testimony educed at the hearing can help inform the Court committee. Though the Court took note of S-287and Harvey’s initiative as welcome steps, it said “this issue deserves the involvement of all stakeholders and, importantly, must involve the judiciary.” Assistant Deputy Public Defender Marcia Blum, who argued the case, declines comment but a statement by Public Defender Yvonne Smith Segars called the ruling a disappointment with regard to Cook’s conviction but “encouraging in the long run” because of the hope the committee would lead to “meaningful long-term changes in the way law enforcement conducts custodial interrogations.” Leslie Stolbof Sinemus, who argued the appeal for the Association of Criminal Defense Lawyers of New Jersey, an amicus, is also optimistic, viewing Cookas a step toward an eventual taping requirement. Meanwhile, the South Orange solo practitioner adds, prosecutors’ voluntary taping of final statements alone is “worse than nothing” because “it lends a false sense of security.” She sees the taping policy as a pre-emptive political move taken after oral argument in Cookwhere the thrust of the justices’ queries showed “the handwriting on the wall.” Sinemus is also pleased with footnote 3, in which the Court disapproved of the common police practice of destroying interrogation notes once they draft a report. The rationale is to avoid having to turn them over to defense counsel, and the Court’s criticism sends a “clear message” to halt the practice, she says. McKoy and Bernardi do not intend to change their procedures, absent a more definitive prohibition. Referring to notes as “work product,” Bernardi says, “We recognize the more material that’s out there, the more potential for well-trained defense lawyers to try to make something out of nothing.” The footnote is not binding or precedential, says McKoy, who points out case law supporting the practice, State v. Dreher, 302 N.J. Super. 408 (App. Div. 1997). The footnote merely puts law enforcement officers on notice of how the Court will likely rule if the issue comes before it, he says. The confession in Cookwas elicited after the defendant was grilled for roughly 15 hours over two days, following initial denial of the charges. Cook was provided with food, bathroom breaks, sleep and even cigarettes, the Court pointed out. Though the police would normally tape a confession, they claimed they did not because of Cook’s emotional state, disjointed answers and repeated recanting and changing of his story. In upholding the conviction, the Court also found no violation of Cook’s Mirandarights and no error in the exclusion of evidence about a similar murder while Cook was behind bars. Cook is serving a 60-year sentence. Deputy Attorney General Paul Heinzel argued for the state.

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