ALBANY – As a former district attorney in Rochester, Michael Green knows first-hand the benefits of videotaping interrogations, both in aiding the prosecution in convicting the guilty and assisting the jury when a defendant claims his confession was false.
"There is no question the best evidence is a full recording, both video and audio, of the entire interrogation," said Green, now executive deputy commissioner of the state Division of Criminal Justice Services (DCJS). "It is a great tool in terms of convicting those people who should be convicted, and a great safeguard in terms of making sure the system is as fair and accurate as it can possibly be."
With Governor Andrew Cuomo's announcement this week that the administration is making $1 million in video recording grants available through DCJS, Green figures he can dramatically expand the number of agencies that routinely record interrogations of suspects in major crimes.
"Hopefully, it will be enough to provide every agency that wants recording equipment with that equipment," said Green, who was the Monroe County district attorney for eight years and an assistant prosecutor for 17 years. Cuomo appointed him to the DCJS post last year.
According to the state, 345 law enforcement agencies in 58 of the state's 62 counties are currently videotaping interrogations.
But there are more than 500 law enforcement agencies in the state, and many of the smaller police departments and sheriff's offices in rural counties like Hamilton, Seneca, Schoharie and Tioga do not have the equipment. Officials said that with the new round of grants—the state has already provided more than $3 million to support video recording—the smaller counties will be able to record interrogations at least in major cases.
Cuomo, in a statement, said the state is "committed to providing local law enforcement with the resources necessary to improve the effectiveness of the process." He said "the new equipment that will result from this funding will improve the strength of New York's criminal justice system, making all New Yorkers safer as a result."
Top law enforcement officials said the grants will further the parallel goals of criminal justice in convicting the guilty and exonerating the innocent.
"By allowing prosecutors to know exactly what the defendants say during interrogations, video recordings help us convict the guilty and better evaluate claims of involuntary confessions," Manhattan District Attorney Cyrus Vance Jr. , president of the District Attorneys' Association of New York State, said in a statement.
Monroe County Sheriff Patrick O'Flynn, president of the New York State Sheriff's Association, and New Windsor Police Chief Michael Biasotti, president of the New York State Association of Chiefs of Police, also praised the initiative.
O'Flynn noted that the sheriffs had previously joined with other law enforcement officials to develop best practices for the recording of custodial interrogations.
"Since developing these best practices, many sheriffs have found video recordings to be a useful tool to effectively and accurately gather all the facts needed in a criminal investigation, both to apprehend and prosecute those responsible for crimes, and to protect those accused of a crime," O'Flynn said.
Criminal defense attorney Terence Kindlon of Kindlon Shanks & Associates in Albany said all police interrogations should be videotaped.
"It works to everyone's advantage," Kindlon said. "On the one hand, it virtually eliminates the age-old problems of a coerced written confession or an interrogator falsely claiming that an accused has given an imaginary oral confession. Conversely, if a client has voluntarily given a genuine confession on video, the question of guilt or innocence is removed from the case and his defense counsel can focus on sentencing advocacy."
A Factor in Several Cases
Videotaping interrogations, although a relatively new practice, has figured prominently in some high-profile cases, including two about to be argued before the Court of Appeals, People v. Thomas out of Rensselaer County and People v. Aveni from Westchester County. Both appeals center on confessions obtained after police deceived the suspects. In both cases, the interrogations were preserved on tape.
In the Rensselaer County case, defendant Adrian Thomas claims he was psychologically coerced into falsely confessing to murdering his baby.
Thomas was repeatedly lied to during a nearly 10-hour interrogation by Troy police and made incriminating statements after authorities falsely told him they needed to know exactly what happened so doctors could save the baby's life. At the time, police knew the baby was dead or was about to be removed from life support.
The Appellate Division, Third Department, upheld the conviction, noting that the "video confirms that the defendant was never…handcuffed or restrained, frisked or placed under arrest, physically or verbally abused, threatened or mistreated" (NYLJ, March 23, 2012).
In the Westchester case, defendant Paul Aveni is challenging his murder conviction, claiming he was coerced into confessing after police falsely told him his girlfriend, who had been injected with heroin, was still alive and he could save her life by revealing what had happened.
The Second Department reversed the conviction because a videotaped interrogation clearly showed police had deceived and threatened Aveni (NYLJ, Oct. 18, 2012).
Also, in Onondaga County, prosecutors agreed to suppression of a confession where the defendant repeatedly mentioned the word "lawyer" during a six-hour, videotaped interrogation. Even without the confession, however, Craig Owens was convicted of murder.
Early this year, in his annual State of the State address, Cuomo endorsed an initiative strongly supported by Chief Judge Jonathan Lippman that would require videotaping of interrogations of individuals suspected of the most serious offenses (NYLJ, Jan. 10). A few months earlier, New York City Police Commissioner Raymond Kelly announced that the NYPD would expand videotaping to all 76 precincts (NYLJ, Sept. 21, 2012).
But videotaping remains optional and legislation that would require recording custodial interrogations has stalled. Some legislators have expressed concerns that statements might be suppressed if a valid confession was not recorded because of an equipment malfunction or other glitch.
The proposal advanced by Lippman and his Justice Taskforce, however, addresses that issue and would relieve authorities of their obligation to videotape for "good cause."
David Schraver, president of the New York State Bar Association, said videotaping should be mandatory.
"What is needed is a state law that requires videotaping of custodial interrogations," said Schraver, of Nixon Peabody in Rochester, adding that the bar group has long advocated mandatory video recording of interrogations. "Funding the purchase of video recording equipment will provide law enforcement agencies with a powerful tool. But if it is not used, it cannot exonerate the innocent or convict the guilty."
Green said he expects video recording to become routine, whether it is mandated or not, as juries increasingly expect to view confessions.
"My personal experience is that jurors are now used to absorbing things visually, through a television screen or computer monitor," Green said. "If you have a choice of having jurors listen to an investigator describe what happened for four hours, or have them watch four hours of videotape showing exactly what happened, my personal experience is they get much more out of it when they are watching it on a TV screen."
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