It is troubling enough that news of individuals set free after years of imprisonment for crimes they did not commit has become routine, but it is unacceptable when efforts to improve the system that has allowed their wrongful convictions to occur are thwarted by those with power to reform the system.
The New York State Bar Association recently faced the harsh reality that at least 53 defendants have been convicted and imprisoned in New York for crimes they did not commit. The bar association convened a Task Force on Wrongful Convictions comprised of district attorneys, defense lawyers, judges and law professors to review these cases to determine the causes of these wrongful convictions and to recommend reforms to prevent similar injustices in the future. I have had the privilege of serving on the task force, but now am speaking in my individual role as an attorney who is concerned that we will fail to seize the opportunity to implement necessary reforms recommended by the task force to minimize the chances of future wrongful convictions.
The task force has proposed video recording of police interrogations of a suspect in their entirety in all felony cases. There are some, mostly in law enforcement, who do not want to make videotaping a requirement. They would prefer to leave it to the police to determine if video recording is appropriate on a case-by-case basis. This approach guarantees the continuation of well documented false confessions that account for a significant percentage of wrongful convictions. To limit videotaping to the whim of police and to begin recording only after the suspect has been broken by questionable police tactics is not a change that will eliminate false confessions. Videotaping the interrogation process from the beginning is the only way to ensure that a jury will be able to determine if a confession is voluntary and not the product of the interrogator’s improper practices.
Some New York state prosecutors have already spoken out in favor of this practice, as a method to minimize the chance of a false confession and as a powerful prosecutorial tool for convicting the guilty. At the recent public hearing, Schenectady Count District Attorney Robert Carney and Greene County District Attorney Gerald Mollen testified about their experiences administering a pilot program in their jurisdictions in which police videotaped all questioning of criminal suspects from the beginning of the interrogation. These prosecutors agreed that video recording of interrogations was the preferred way to memorialize a suspect’s statements to police because it protects police from false claims of coercion, and also provides the jury access to all of the circumstances of the interrogation, making for compelling evidence at trial.
The task force has also recommended that eyewitness identification procedures be videotaped and that they be conducted by a person who does not know the identity of the suspect in the lineup. This “double-blind” method has been shown to prevent an eyewitness from being influenced by both intentional and unintentional hints by the person in charge of the identification procedure. Faulty eyewitness identifications account for a staggering 36 percent of the wrongful convictions examined by the task force. Leaving it to the police to decide whether to record and how to conduct the procedure does not remedy the problem of faulty eyewitness identifications.
It is time to mandate, by law, that these procedures must be implemented by the police. Failure to videotape all interrogations and eyewitness identification procedures, and the failure to conduct double-blind eyewitness procedures must result in sanctions strong enough to compel all law enforcement agencies to conduct enlightened criminal investigations. Our Legislature should adopt laws that provide that law enforcement’s failure to use these procedures would require a judge to instruct the jury that the confession or identification was obtained using unreliable methods, or, in cases of intentional failure to use these procedures, to exclude the evidence altogether.
Just as the U.S. Supreme Court’s ruling requiring that Miranda warnings be given before interrogating a suspect has not impeded law enforcement’s ability to apprehend and convict the guilty, I strongly believe the same will be the legacy of mandated videotaping of interrogations and eyewitness procedures.
Those who have voiced resistance to these reforms point to the costs involved and highlight burdens they might place on smaller or rural police departments, but these concerns are not supported by the evidence or today’s technological realities. While video recordings in every precinct house may have been prohibitively expensive decades ago, this technology is readily affordable today. Videotaping of all interrogations is already successfully underway in Schenectady and Broome counties as well as a number of jurisdictions nationwide. A study conducted by the Innocence Project, perhaps the leading authority on the problem of wrongful convictions, shows that the audiovisual equipment needed to record interrogations and identification procedures is available at minimal cost. Even in belt-tightening budgetary times, the price is minor, especially when compared with the benefit it brings – a reduction in cases where the “wrong man” is charged, convicted and jailed.
No one should fear that implementing these reforms will reduce the chances of convicting the guilty. On the contrary, with greater documentation of the investigation of crimes and greater accuracy in questioning and identifying suspects, it is expected that prosecutors will be more successful in convicting those who actually commit crimes. As a defense attorney who in the past has tried to cast doubts on how the police obtained a confession or whether an eyewitness’ identification was accurate, I believe that recording these procedures will more often than not strengthen the prosecution against my clients.
The bar association’s House of Delegates, its governing body, is set to vote on the task force’s recommendations in April. Voices undoubtedly will be raised before then urging the rejection and dilution of the most significant recommendations that would mandate law enforcement to change its practices in interrogating and identifying suspects. Unjustified fears will be raised that the police will be handcuffed in doing their important work. The only fear that is warranted is that failure to mandate these reforms will prolong this nation’s disgraceful dirty secret of permitting too many innocent people to be convicted and jailed, leaving the guilty free and unpunished.
Robert C. Gottlieb is a member of The Law Offices of Robert C. Gottlieb.