Taping police interrogations may end the lies with...: Irrefutable EvidenceAuthor(s): MICHAEL HIGGINSSource: ABA Journal, Vol. 84, No. 5 (MAY 1998), pp. 18-19Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/27840226 .

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NEWS

Taping police interrogations may

end the lies with ...

Irrefutable

Evidence BY MICHAEL HIGGINS

To the jurors at his capital mur

der trial, Gary Gauger looked like a desperate liar.

Police said Gauger had con fessed to killing his parents in 1993 at their farm near Richmond, 111. Now Gauger claimed he only said ?hypothetically?that if he had killed anyone, it must have been during a blackout.

The jury found Gauger guilty, and he was sentenced to death.

But Gauger's story looks much different today. In 1996, an Illinois appeals court overturned his con viction for lack of evidence and freed him from prison. Then last June, federal prosecutors charged two members of the Outlaws motor cycle gang with the murders.

To Tape or Not to Tape Many now point to Gauger's

case and others like it as proof that law enforcement officers should be required to tape-record or video tape all suspect interrogations.

"All the jury had to decide in Gary's case was, 'Do I believe what Gary said or what the cops said?'

"

says his attorney, Larry Marshall, a law professor at Northwestern

University in Chicago. If police taped all interrogations, "We would not have those issues anymore."

Currently, only Alaska and Minnesota require taping, says Wayne Westling, a University of Oregon law professor who has stud ied the issue. In Texas, evidence rules strongly encourage taping.

Some police departments re quire officers to tape interrogations that they conduct at the police sta tion. But law enforcement agencies generally seem to balk at an across the-board taping mandate.

The FBI, for example, is often cited as a law enforcement agency that routinely does not tape inter rogations. That policy got some at tention last year, when it was re vealed that agents did not record their interview with Oklahoma City bombing conspirator Terry Nichols.

Nichols did not testify at trial, so he never directly challenged the FBI agents' version of his state ments. But some observers still puzzled over why, when talking to a key figure in a case of such magni tude, the FBI would choose to have no exact record of what was said.

Officials with the

FBI refused to comment on their taping policy. An FBI spokesperson did say the policy was under review.

A suspect's statements were also at issue last year in the trial of Louise Woodward, the British au pair who was convicted of killing an 8-month-old baby.

Police in Massachusetts said Woodward admitted being "rough"

with the child, but she chai lenged their account in court. Police had only notes of the interview.

The International Asso ciation of Chiefs of Police in Alexandria, Va., developed a model policy on interroga tions in 1995. It encour ages officers to use video- ^^^^^^ tape and audiotape, but leaves it to the lead inves-

^^^^^H tigative officer to decide ^^^^^H when taping may be ap

Why shy away from ^^^^^H a hard-and-fast taping re- ^^^^^H quirement? The real world ^^^^^H is messy, answers George ^^^^^H Franscell, an attorney in

Pasadena. Calif., who. as i^L^L^L^H a member of the ad viso- j^^^^^H ry board of the National ̂̂ ^^^^J Law Enforcement Policy Center, ̂ ^^^^^J helped draft the model policy for ̂̂ ^^^^J the international police chiefs.

Tape recorders may not be available, Franscell says. They ^^^^B can break. Tapes can be misfiled ̂ ^^^^^H or accidentally erased. And if |^^|HH taping advocates expand the pol- ̂ ^^H|9 icy to cover interrogations in the ̂ ^^H|H field, the costs could quickly ̂ ^^^HH grow prohibitive. ^^^^^H Yet after noting these con-

^H^^H| cerne, Franscell acknowledges H^^HH that at least for stationhouse in- ̂ ^^BMj terrogations, arguments for tap- |^M^^W ing are strong. If his board takes ^^^^^H up the issue again, he says, he ^ ^ ^? would be "strongly tempted" to

vote for a mandatory rule. :

;^^?'rf:?^

Arguments a Smoke Screen? To defense attorneys, argu- m??f* ments about broken tape re- mf'

corders and cost are disingenu- g mm ous. They see only one reason m

Jp for police not to tape: to hide mf trickery and bullying. m mm

18 ABA JOURNAL / MAY 1998 ILLUSTRATION BY JEFF DIONJSE

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that there cannot be a running tape in the interrogation room is just a

complete fallacy," Marshall says. "They don't want jurors and judges to see what happens.... It's not that they don't have $12 tape recorders."

In other cases, a failure to tape might hide coercion. In 1985, for ex

ample, a Chicago man claimed po lice beat him to obtain his confes sion to rape and murder. But Ronald Jones couldn't convince a

jury, and he was sentenced to die. Years later DNA testing showed

conclusively that the semen in the victim's body came from some one other than Jones. In July, the Illinois Supreme Court vacated his conviction. Prosecutors are de

who intimidates suspects is found far more often on prime-time TV than in real life.

Perhaps a bigger reason that many police departments don't tape is simple inertia. In swearing con tests with defendants over what was said in an interrogation, police normally win. So officials see no reason to change the system.

But that view may be short sighted, says Clifford Fishman, a former prosecutor in New York City and now a law professor at Catholic University in Washington, D.C.

Police who rely too much on the goodwill of juries can get burned. After O.J. Simpson's ac

quittal in his criminal trial, it is no

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ciding whether to retry him. A tape of Jones' entire interro

gation could have made a huge dif ference, says his appellate attorney, Richard Cunningham of Chicago. Either it would have shown the beating, he says, or it would have stopped it from happening.

But outright coercion of a wit ness is rare. And police advocates such as Franscell argue that even the rough, foul-mouthed detective

secret that jurors in some jurisdic tions strongly distrust the police.

"As a prosecutor, I always pre ferred for the interview to be on

tape," Fishman says. "That was one less credibility issue that the jury

might find against my side." A taping requirement would

raise several legal issues. For starters, even taping advo

cates concede there would have to be exceptions. Fishman says police

should not have to tape-record when a suspect initiates the conver sation, say, from the back of the squad car. "I don't think the officer should be required to say, 'Shut up until we get back to the station,'

"

he says. There's also the question of the

penalty for failing to tape. Defense attorneys favor an exclusionary rule that would keep untaped state ments out of court.

Franscell says that goes too far. He would simply let the jury know that police violated the rule? perhaps with an instruction from the judge?and give them the right to draw a negative inference.

Another issue: Should police be able to tape suspects secretly? Fishman, the former prosecutor, says yes. The rule should be de signed to preserve evidence accu

rately, not to discourage defen dants from talking, he argues.

And in a final twist, law pro fessor Paul Cassell at the Uni versity of Utah has argued that videotaping confessions would deter police misconduct enough that officers could then dispense with Miranda warnings. Defense

H attorneys abhor that suggestion.

Pj Even if those issues are re Hf solved, taping won't be a pana li ; cea. There will still be questions

about what happened before the recorder was turned on. Sus

pects can still claim they felt in timidated or their words were

misunderstood.

But it is better than no tape at all, advocates argue. "So much of what we're dealing with in the interrogation is nuance," Fish

man says. "What precisely did the defendant say? In response to precisely what question did he say it? ... [With taping] the jury doesn't have to guess."

Law professor Westling co wrote an upcoming article about taped interrogation in Australia. He says that 10 years ago, police there also voiced concerns that

taping would cost too much and dis courage confessions. But a decision by the Australian Supreme Court in 1991 made it desirable to tape in terrogation. And since then, West ling says, police in Australia have found their concerns unwarranted.

"This is something that is in

evitably going to happen [in the United States] over the next 20

years," Westling says. "We're just taking baby steps."

ABA JOURNAL / MAY 1998 19

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