It is playing Hamlet without the ghost to discuss police questioning without knowing what such questioning is really like.1

Ten years ago, the Massachusetts high court declared that it was dissatisfied with hearing “repeated pronouncements” about the benefits of recording stationhouse interrogations of suspects while seeing no changes in practice.2 It acidly noted that despite the readily available means for recording, the prosecution continued to proffer nothing but the interrogating officer’s personal recollection which, even if supplemented by contemporaneous notes, was “woefully incomplete and inherently unreliable.” Not only is the officer testifying about something that occurred months or years ago, his recollection is limited to what he himself considered significant. The issue was not the good or bad faith of the police, but whether the prosecution can be said to have met its obligation to prove the resulting confession voluntary beyond a reasonable doubt when it proffers such unnecessarily partial and inferior evidence:

Put simply, a judge may reasonably conclude that when the party with the burden of proof beyond a reasonable doubt on the issues of voluntariness and waiver deliberately fails to utilize readily available means to preserve the best evidence of what transpired during the interrogation, it has not met that very high standard of proof. 3

The court reasoned that regardless of what it could or could not require of the police, there was no question that it had the authority to regulate the presentation of evidence in court. Accordingly, it held that when the prosecution proffers a confession without at least an audio recording of the complete interrogation, the defendant is entitled to have the court instruct the jurors that they should weigh the alleged statement with great caution and that “the absence of a recording permits (but does not compel) them to conclude that the [prosecution] has failed to prove voluntariness beyond a reasonable doubt.” 4

As a result, recording interrogations became the norm in Massachusetts.

The New York Court of Appeals recently had the opportunity to do the same in People v. Durant.5 Instead it merely added to the accumulation of “repeated pronouncements.”

Twenty-two-year-old Everett Durant, accused of robbery, was taken to the stationhouse and handcuffed to a table in a five by nine foot interrogation room.6 The only evidence of what was said came from the interrogating officer.

According to the officer, Durant waived his Miranda rights after what he said was five or 10 minutes of conversation about whether Durant had children. Durant then made an exculpatory statement. The officer, however, told him it was “time to tell the truth and man up.” Durant said, “okay,” and gave an inculpatory statement.

On cross-examination, the officer admitted that it had not been quite so simple, and that there had been “a fair amount of discussion” that was never memorialized. He remembered telling Durant that he was facing serious charges, that it could be in his best interest to talk and that he could help himself by telling the truth. He denied making any threats or promises.

Defense counsel proposed a jury instruction that the failure to record was among the factors to be considered when deciding what weight, if any, should be given to Durant’s alleged statement.7 The charge explained that the absence of an electronic recording meant that the jury did not have a complete picture of what was said, but only “a summary of the interrogation based upon the recollections of a law enforcement officer.” Therefore, the jury should weigh the proffered statement with great caution.

The proposed charge concluded:

The absence of an electronic recording permits but does not compel you to conclude that the prosecution has failed to prove that a statement was either actually or voluntarily made, or if made, was accurately reported by the state’s witnesses.

If, after consideration of all of the evidence, you determine that the prosecution has failed to prove to your satisfaction, beyond a reasonable doubt, that the statement attributed to the defendant was actually made, or that it was a voluntary statement as I have defined that term for you, then you should disregard it completely.

The trial court denied the request without explanation.8 After Durant was convicted of robbery, the Appellate Division summarily affirmed the denial of the charge. The Court of Appeals granted leave to appeal, receiving amicus curiae briefs from the Innocence Project and the District Attorneys Association of the State of New York (DAASNY). There was no amicus brief from the defense bar.

The Court of Appeals decision framed the issue as whether there should be “a categorical mandate” whereby a court is “automatically” and “invariably” “compelled” “as a matter of law” to issue an “adverse inference” charge “in every case where the People fail to record a custodial interrogation.”

The court reasoned that there were only two circumstances where a charge against the People is mandatory: where there was “governmental malfeasance” such as destroying evidence; or where the failure to proffer a material witness suggests a dishonest motive. Thus, the issue was diverted from whether the People could meet their burden of proof without a recorded interrogation, into whether the defendant could prove that the police had nefarious motives for not recording.

The court found that Durant could not meet his newly-acquired burden. It reasoned that the police could not be accused of destroying evidence, because they had not made any recording to destroy. Moreover, when they decided not to record, they had “no idea” that the interrogation would create material evidence for trial. Thus, their failure to record was “likely to stem from an innocent oversight or a legitimate adherence to a neutral departmental policy.”

Finally, the court feared that the defendant’s “proposed categorical mandate,” if approved, could be applied to an unspecified “multitude of scenarios,” so that “courts might frequently issue adverse inference instructions that may not be supported by law or logic.” The decision ends by acknowledging the benefits of recording, such as preventing wrongful convictions, but leaves the matter to the Legislature.

The court’s reasoning is based on a mischaracterization of the issue. The argument was not that the police are withholding favorable evidence, but that the prosecution cannot claim, let alone prove beyond a reasonable doubt, that the resulting confession is voluntary based on nothing but the subjective recollection of the interrogating officer. The proposed instruction is not, as the People’s brief hotly alleges, “nothing more than a baseless invitation for the jury to speculate about institutional corruption.”9

Rather, the instruction correctly informs the jurors that they have been presented only with “a summary of the interrogation based upon the recollections of a law enforcement officer,” which they are entitled to view as insufficient proof of the voluntariness of the resulting confession. As the Massachusetts court observed, this is no different in principle from any other cautionary instruction regarding certain types of evidence that a jury might otherwise misconstrue as being particularly reliable.10

There is nothing new in requiring the People to provide “facts, not assurances.” When determining whether the People have met their burden to prove that an arrest was supported by probable cause, the Court of Appeals has long held that this is a matter for the court not the police to decide, and that “summary statements that the police had arrived at a conclusion that sufficient cause existed will not do.”11

For the same reason, an interrogating officer’s assurances that he made no threats or promises does not suffice to prove that the resulting confession was voluntarily made. The People must provide the necessary facts to enable the fact finder to decide this.

To see the difference between interrogators’ conclusions and actual facts, one need only look to last term’s decision in People v. Thomas. This was a purported shaken baby case where the father was charged with murder based on a confession elicited after eight hours of videotaped interrogation. The Appellate Division, relying mainly on the officers’ testimony at the Huntley hearing, interpreted their questioning of Thomas as legitimately “appealing to his parental concerns” and putting a “reasonable focus” on his wife’s potential culpability.”12 The Court of Appeals, relying on the videotape, found the same questioning to constitute coercive threats and falsehoods.13

The lesson of Durant is that defense attorneys should continue to argue that the People cannot prove beyond a reasonable doubt that a stationhouse confession is voluntary when they fail to provide a complete recording of the interrogation. We should not, as the court did, let the issue be diverted into whether the police have a tape recorder at the stationhouse or what their policies are, or their motives for not recording. The excuse that the police lack the technical capacity is nonsense: stationhouse interrogations have been recorded in New York since at least as far back as the 1970′s.14 When a suspect such as Durant begins by denying guilt and ends up confessing, the fact finder is entitled to know how it happened.


1. Bernard Weissberg, “Police Interrogation of Arrested Persons: A Skeptical View,” 52 J. Crim L. Criminology & Police Science 21 (1961).

2. Commonwealth v. DiGiambattista, 442 Mass. 423, 445-446 (2004).

3. Id. at 441.

4. Id. at 447-448.

5. People v. Durant, 2015 WL 7355935 (NY 2015).

6. These facts are taken from the decision, the trial record and the briefs of the parties and amici curiae, available from “Courtpass” on the Court of Appeals website at www.nycourts.gov/ctapps/courtpass/Public_search.aspx.

7. See Court Exhibit 1 on Courtpass supra.

8. People v. Durant, 112 AD3d 1366 (4th Dept. 2013).

9. People’s brief at 11.

10. DiGiambattista at 447.

11. People v. Dodt, 61 N.Y.2d 408, 415 (1984).

12. People v. Thomas, 93 AD3d 1019, 1027-1028 (3rd Dept. 2012).

13. People v. Thomas, 22 NY3d 629, 643 (2014). Mr. Thomas was acquitted on re-trial.

14. See, e.g., People v. Sunset Bay, 76 AD2d 592 (1st Dept. 1980) appeal dismissed 54 NY2d 808 (1981); People v. Leonard, 59 AD2d 1 (2nd Dept. 1977).