CT Considers Bill to Exclude Unrecorded Confessions

By TChris, Section Legislation
Posted on Tue Mar 31, 2009 at 06:27:00 AM EST
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A police procedural reform, long advocated by TalkLeft and by a variety of organizations and concerned citizens who want to reduce the risk of mistaken accusations and convictions, continues to gain steam. The Judiciary Committee of Connecticut's General Assembly is considering a bill that would render confessions obtained in a custodial interrogation presumptively inadmissible as evidence unless the interrogation has been electronically recorded. The bill should gain support in light of a court decision that granted a new trial to a mentally disabled man whose unrecorded confession became the most powerful evidence in a murder prosecution that lacked physical evidence tying the man to the crime.

In the 1992 trial, there was no expert witness to explain the manipulative methods that detectives use to wheedle confessions. [Richard] Lapointe's attorneys were overly confident that the jurors would acquit after seeing him on the witness stand revealing his vulnerability to suggestion and his child-like desire to please authority figures.

TalkLeft wrote about the Lapointe case here. [more ...]

Mandating recorded interrogations -- particularly in a custodial setting (a police department interrogation room or a jail cell, for instance) -- is a no-brainer.

Yet for a dozen years, the resistance to recording legislation ("Don't tell us how to do our job!") has been ferocious. Our top cops and prosecutors have used every argument to block this entirely beneficial reform. Convictions of the guilty are made more certain. The innocent are protected. The savings in court costs are immense. And every major study of police experience with recording says it is a law enforcement tool enthusiastically embraced once police try it.

If trials are a search for the truth (as prosecutors like to proclaim in their arguments to the jury), why should we conceal the truth about the tactics that a police detective used to obtain a confession?

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CT Considers Bill to Exclude Unrecorded Confessions | 20 comments (20 topical)

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mandating recorded confessions (none / 0) (#1)
by diogenes on Tue Mar 31, 2009 at 09:03:33 AM EST

Does this mean that the prosecution can introduce a recorded confession no matter what the defense says? The end of the fifth amendment--no jury would acquit after hearing a confession on videotape, whereas people can now insinuate that other confessions were obtained in a coercive manner, that the jurors can't trust the cops, etc.
On balance more guilty defendents will be convicted although the occasional one who makes the innocence project news will avoid conviction. Good deal for everyone.

: no (none / 0) (#2)
by Bemused on Tue Mar 31, 2009 at 09:41:25 AM EST

All the rules pertaining to the admissibility of confessions would still apply. A confession could be recorded and inadmissible. In fact, a primary purpose of the law is to make it easier for courts to determine if a confession should be ruled admissible or inadmissible because it has the recording as the best evidence of of the circumstances surrounding the obtaining of the confession.
Questions relating to custodial status, whether the statementwas a product of interrogation or a spontaneous utterance, informing and waiving of rights, coercive environment, ability of defendant to understand, and voluntariness generally will more often be easier for a court to decide correctly when he has a recording in addition to the testimony of the cops and defendant concerning the circumstances surrounding the confession.

[ Parent ]

Have to say (none / 0) (#3)
by Patrick on Tue Mar 31, 2009 at 03:59:26 PM EST

I've never heard

Trials are a search for the truth

From either side, especially the defense. It sure would be nice if they were.

Hate to disappoint you, (none / 0) (#4)
by Bemused on Tue Mar 31, 2009 at 05:30:36 PM EST

but it's the court's function to try to make a trial a search for the truth within the parameters of due process, etc., not mine.

A defense lawyer's job is to get the best result for his client withing legal and ethical boundaries. A prosecutor has a duty to society to uphold justice, but a defense lawyer in a criminal case has a paramount duty to his client.

[ Parent ]

so tapes are great (none / 0) (#5)
by diogenes on Tue Mar 31, 2009 at 05:46:44 PM EST

Tell me again how a defense lawyer will be able to convince a jury that his client "didn't mean it" when he confessed without resorting to insinuations about police brutality/manipulation (hard to do since the confession is on tape).
Recording all confessions in the long run is the best way to reduce mistaken acquittals.

[ Parent ]

recordings (none / 0) (#6)
by Bemused on Tue Mar 31, 2009 at 06:12:29 PM EST

The primary benefit I see from recording is DETERRING the cops from violating suspects' rights and then lying about it in court. When cops know the defense and the judge will see and hear with their own eyes and ears they will be less likely to coerce suspects than they now are. I think that would be a good thing. Actually, I know it's a good thing because some law enforcement agencies do record now (sometimes unbeknownst to the suspect) even though not required.

Obviously, if cops document through recording the fact that they obtained a confession in accordance with law that will be more than helpful to establishing admissibility. Equally true, a jury would be more likely to give more weight to a confession it can hear and see than one related to it by an interested party.

In the absence of certain specific facts (e.g., a drunk, stoned, or mentally challenged confessor) a recording of a non-coerced confession to the crime charged is close to slam dunk evidence. I'm willing to accept that aspect of the law helping prosecutions in exchange for the benefits I see.

[ Parent ]

another issue (none / 0) (#7)
by Bemused on Tue Mar 31, 2009 at 06:19:21 PM EST

is why if you are so sure that recordings would inure to the benefit of the prosecution the vast majority of the time, why do so many police agancies not do it without being required? Moreover, why do law enforcement types speak and write of the burden such requirements would create (as if a cheap recorder and the ability to turn it on is an obstacle) so frequently.

Finally, why do so many agencies now record the statements of witnesses so they are available for court but chooose not to record the statements of suspects?

[ Parent ]

I think (2.00 / 0) (#9)
by Patrick on Tue Mar 31, 2009 at 06:44:55 PM EST

I can address that. Many suspect statements are not taken at "convenient" times. Sure it's easy to turn on a digital recorder, but some cops don't carry them. For serious crimes, or crimes where there is time to arrange an interview, recording is absolutely the best avenue. But to exclude all suspect statements blindly, unless recorded seems a bit over the top. What if a recording fails? I've had that happen more than once. Should that confession be inadmissible? And if you agree there should be exceptions, bad cops will make sure the exception applies if they are going to take a coerced statement. You will never make a human system infallible. Another common scenario is taking a statement from someone you don't know is a suspect, what happens then?

[ Parent ]

the laws (none / 0) (#11)
by Bemused on Tue Mar 31, 2009 at 06:50:44 PM EST

such as exist and are being proposed don't blindly exclude non recorded confeessions. they create a rebuttable presumption against admissibility which may be overcome by showing, generally, extenuating circumstances justifying a failure ot record and that the confessions can be shown to contain the indicia of reliability broadly required, i.e, voluntary by a person capable of understanding what he is doing.

[ Parent ]

: Then (none / 0) (#12)
by Patrick on Tue Mar 31, 2009 at 07:23:53 PM EST

I withdraw my objection.

[ Parent ]

Then (none / 0) (#8)
by Patrick on Tue Mar 31, 2009 at 06:37:22 PM EST

why do they refer to it as an adversarial system instead of a truth seeking one? If it was a true search for the truth, a whole lot more information would be allowed to be presented to the jury, prejudicial or not.

[ Parent ]

the theory, (none / 0) (#10)
by Bemused on Tue Mar 31, 2009 at 06:46:37 PM EST

and I see you don't agree, is that the adversarial process is the best way of divining the truth even more than that the two are not mutually exclusive.

Also I don't think many of the exclusionary and inadmissibility rules which you dislike are confined only to adversarial as opposed to inquisirorial systems. you could have an adversarial system without our exlusionary and inadmissibility rules or an inquisitorial system with them.

I don't necessarily (none / 0) (#13)
by Patrick on Tue Mar 31, 2009 at 07:29:12 PM EST

disagree, but I do have a different perspective and I admit I have yet to see a better system. Here's the problem i have with it. A guy is on parole for possession w/intent to sell. He has a couple priors convictions for the same thing...SO it's well established that he's a drug dealer. You catch him dealing again, and you can't tell the jury about that unless he testifies? And the defense gets to agrue that becuase he didn't have pay and owe sheets that he wasn't dealing....When I know well and good that he's learned from his past mistakes and knows that those are damning evidence so he doesn't use them anymore.

[ Parent ]

Yeah (none / 0) (#14)
by squeaky on Tue Mar 31, 2009 at 09:28:32 PM EST

But what really sucks imo, is that someone like Charles Lynch goes to federal trial while legally selling MJ under CA laws, but cannot mention anything about CA state law in the trial.

That is absurd.

[ Parent ]

that's not necessarily the case (none / 0) (#15)
by Bemused on Wed Apr 01, 2009 at 07:05:54 AM EST

Courts very frequently (too frequently from the perspective of the defense bar) allow admission of evidence of similar bad acts under Rule 404 (b)
to show motive, intent, absence of mistake, knowledge, etc.

Quite often a court will allow evidence of the acts (i.e., the dealing, he sold drugs to Mr. X on past occasions) which formed the basis of the prior conviction just not admission of the fact of the conviction. In fact, courts very often admit evidence of similar bad acts which did not result in conviction or have never been charged. so, if you have evidence the defendant is a deaer and a good prosecutor you can very often get it in.

Also if the defendant were to offer evidence of a pertinent trait of his charater, even through evidence other thn his own testimony, he can open to door for rebuttal evidence concerning that trait. So, a defendant who offers "law abiding" character evidence on his behalf invites "not so fast, lawbreaker" evidence.

There's a very very very good reason not allow you to testify that you know a defendant doesn't keep ledgers, etc. becauuse he's learned from experience the peril. You don't "know" that. You would be engaging in speculation. Maybe accurate speculation but pure speculation unless he told you that, and if he told you that it's his statement and you can use THAT.

[ Parent ]

somewhat off topic (none / 0) (#16)
by Bemused on Wed Apr 01, 2009 at 08:42:13 AM EST

What are your thoughts about courts allowing cops to be qualified as experts in the operation of drug trafficking and give opinion testimony regarding common MOs, the signifinance of "tools of the trade," user v. seller amounts, street prices, etc.?

[ Parent ]

Well since (none / 0) (#17)
by Patrick on Wed Apr 01, 2009 at 10:58:59 AM EST

the definition of expert is quite lenient in my opinion, in California it's any level of knowledge above that of the average citizen, I would say it should be allowed until the definition is changed. I've qualified as an expert many times on drugs, and testified against defense experts in almost every jury trial I've ever testified in. Who knows better how drug dealers operate in a particular area then the police who work that area, (Other than the other local drug dealers, and I think they probably have Brady issues.

[ Parent ]

Actually (none / 0) (#18)
by Bemused on Wed Apr 01, 2009 at 11:31:40 AM EST

I have sought to have a drug-dealer called against my client qualified as an expert when after asking them a question and getting an objection that it calls for opinion or speculation. The court did not formally rule on that but did allow the witness to answer my questions and contradict some of what the cop expert had claimed. Most importantly, that some buyers do in fact buy 8-balls or 1/4s for personal use because it's cheaper. My guy was acquitted, too, and I think the cop expert's BS being exposed by the government's star witness may have helped.

You are right about the lenient standard but some of what cops testify is not really matters beyond the knowledge of the average juror and is not offered for "educational" purposes. Its intent is to tell the jury these specific facts in this particular case means this defendant is guilty.

It gets to the point of absurdity at times. e.g., drug dealers often use locations other than their personal residence to distribute; they use cellphones; they carry cash...

[ Parent ]

Yeah (none / 0) (#19)
by Patrick on Wed Apr 01, 2009 at 01:15:31 PM EST

they do use quantity to get a discount. I've testified to that many times. I usually use a costco analogy.

If the prosection was basing their sales case on quantity only, I suspect it was a pretty weak case. I think the most valuable impact an expert witness can have is making a connection with the jury. You can't use technical terms, you'll bore and confuse the jury. Also most jurors won't have purchased quantities of a controlled substance, but they will have bought bulk toilet paper or something like that.

I tend to agree that it's gone to point of absurdity, since you can almost always find two conflicting examples of a behavior to fit a particular set of circumstance. But it goes both ways. I've had a defense expert testify that 4' tall outdoor marijuana plant (Still early in the season) would only produce 4 ounces of marijuana. It was complete hooey. These plants likely would have produced a pound or more. It's the same as claiming more than 50% plant demise based on disease and predators. I've never in my entire career seen that. Perhaps with sexing plants if the grower started from seed, but disease and predation don't take that many, not with today's advancements. So, I wouldn't mind seeing "expert" qualifications being tightened to some extent.

I once gave an opinion that I later found out was improper. I could have let it ride because it wasn't that big of an issue. The next Chance I had to talk to the DA, I told her, and had her ask me the same question, (the hearing ended up lasting more than 1 day so thankfully I had a chance to fix it.) I fessed up to my mistake on the stand in front of the judge. I don't think many people would do that, but I bet that judge remembered it.

[ Parent ]

: It was a very weak case (none / 0) (#20)
by Bemused on Wed Apr 01, 2009 at 02:13:22 PM EST

and a piddling case, and against a first-time non-violent offender (in state court not federal).
Basicaly my guy was standing on the corner minding his own business until a patrol car drove by. then he "looked nervous" and started walking the other way "briskly" and looked over his shoulders. The cops pulled a U-Turn and he ran. He wasn't that fast and they caught him and did a Terry frisk finding a 1/4 oz and a couple of hundred bucks. The money was obviously not the kind of amount that means much, so they were basing the whole intent to distribute on some really lame 404 (b) the and amount (which luckily was in one chunk).
Even when the court ruled most of their lame 404 (b) was inadmissible the prosecutors refused to let him plead to a misdemeanor under the first offender section (expunged here) so we went to trial. They had one snitch who claimed to be kid's supplier and the dope. No controlled buys and their snitch ended up helping me more than the state. Then for reasons i still don't understand they didn't even ask for lesser included of simple possession so it was a straight up acquittal.
a huge waste of everyone's time, driven largely by a too gung ho drug unit cop with weak willed prosecutors who didn't want to do the smart thing over his objection.
Your plant story reminds me of how years ago the cops here would testify that EVERY plant had a street value of $2000. A foot tall, with a few leaves and no buds, outside, in September, grown by some rube =$2000. Top grade sinsemilia, laden with huge buds grown hydroponically with and top quality lighting and thermal/moisture control = $2000. they've gotten smarter since then.

[ Parent ]