The rights to remain silent and to counsel – the “Miranda Rights” frequently quoted in police procedurals – were established in the 1966 case Miranda v. Arizona, a decision that was meant to offer suspects an easy way to avoid police questioning and deter police from using psychological and physical pressure on suspects who did not invoke their rights.
Miranda has failed to live up to expectations. Despite being told they have a right to remain silent, suspects talk to the police in upwards of 80% of investigations, and they confess in 50-60% of them.
“While some suspects simply want to confess, most of these admissions occur because police violate either the letter or spirit of Miranda,” Christopher Slobogin writes in his book Rehabilitating Criminal Justice.
Police have manipulated or denigrated Miranda Rights in several ways. Interrogators continue questioning after counsel is requested, threaten suspects who refuse to talk, lead suspects to believe the police are on their side, or minimize the consequences of confession. Accountability for these tactics is minimal; courts have repeatedly permitted all but the most blatantly coercive efforts to elicit information from suspects.
Slobogin argues that defense attorneys are often handcuffed in making claims about the involuntariness of confessions because complete details of the interrogation are unavailable. Moreover, without verbatim transcripts, judges have to rely on potentially biased police reports in determining what truly happened in most interrogations. “While the suspect can counter the official account, that move is very likely to be viewed as less credible than the police version,” he says.
While 26 states, as well as the Federal Government, currently require the recording of interrogations, some states limit the requirement to homicides or other serious crimes, allow partial recordings, or provide no remedy when recordings aren’t conducted.
By contrast, interviews used to generate statements for civil disputes must be recorded in their entirety law. “There is no sound reason why the same should not be true in the criminal setting,” he argues.
Slobogin offers three distinct constitutional reasons to require complete tapings of interrogations.
The Due Process Argument for Recording of Interrogations
First, Slobogin contends that “taping is the only way the government can meet its obligation to preserve evidence that is exculpatory.” He concedes that the Supreme Court, in California v. Trombetta, limited that obligation to preventing bad faith destruction of evidence that is obviously helpful to the defense and that cannot be replicated in some way. He also acknowledges that lower courts have rejected Trombetta’s application to taping because police seldom know when questioning will produce such evidence, and that in any event, the suspect can always share their side of the story.
Slobogin points out, however, that “while many interrogations undoubtedly are conducted properly, we cannot be sure that conclusion is warranted with respect to a particular interrogation until a court says so.” And that conclusion cannot be reached without a verbatim record of pretrial statements, for the same reason civil courts require recordings.
The author also notes that, relying on similar reasoning, lower court cases have long required videotaping of the identification process. “If lineups must be recorded for the defense, certainly interrogations – which involve much more complex interactions and feature suspects likely to be considered less credible than eyewitnesses – should be.”
The Sixth Amendment Argument for Recording of Interrogations
The same cases allude to a second rationale for a recording requirement in the interrogation setting. In United States v. Wade, the Supreme Court held that suspects placed in lineups after indictment are entitled, under the Sixth Amendment, either to counsel or to an equally effective substitute that can ensure the accused is not “deprived of that right of cross-examination which is an essential safeguard to his right to confront the witnesses against him.”
“In essence, the Wade Court adopted in the lineup context the same two assumptions I have adopted for the interrogation context: the need for an accurate and detailed account of pretrial events and the inability of police accounts alone to provide it,” Slobogin writes.
“Interrogation is subject to even more vagaries than the lineup process. And counsel, or a substitute – taping – is necessary to ensure we know about those vagaries.”
The Fifth Amendment Argument for Recording of Interrogations
The Fifth Amendment provides two other bases for requiring interrogation taping. The Supreme Court has held that, to ensure the voluntariness of statements, the state must prove by a preponderance of evidence that the police gave warnings, the suspect understood them, and that any waiver of fifth amendment rights in those warnings is voluntary and knowing.
“If one assumes that voluntariness cannot be assessed without taping, the tapeless prosecutor cannot meet that burden, at least when defendants can plausibly assert they did not receive or understand warnings, were misled about them, or received improper threats, promises, and the like,” the book states.
Slobogin also argues there is an historically-based Fifth Amendment rationale for taping. Although the drafters of the Fifth Amendment obviously did not require taping of interrogations, they also were not familiar with interrogations by organized police. Rather, in their day all interrogations were conducted by judges in open court. The closest equivalent in the modern era, he argues, is presenting a recording to the judge.
“A historical perspective on the Fifth Amendment dictates that if the court is not going to conduct the questioning, it should at least receive a verbatim account of how the questioning went,” he writes.
Rehabilitating Criminal Justice, published by Cambridge University Press, publishes in March and is currently available for pre-order.
Christopher Slobogin is the Milton R. Underwood Chair in Law and Director of the Criminal Justice Program at Vanderbilt Law School.
