By Steve Thorpe
A Michigan law took effect earlier this year that requires police agencies to make video and audio recordings of statements of those arrested for major crimes. A wide range of prosecutors and defense lawyers hope that the measure will improve the quality and efficiency of justice in Michigan. Attorney Valerie Newman of the State Appellate Defender’s Office in Detroit was committee co-chairwoman of the State Bar of Michigan’s Custodial Interrogation Task Force.
Thorpe: In 2010, the Uniform Law Commission (ULC) sent to the 50 state legislatures a proposed Uniform Electronic Recordation of Custodial Interrogations Act suggesting a framework requiring police to record the process of interrogating suspects. How closely does the Michigan law hew to that framework?
Newman: The Michigan law closely follows the framework of the Uniform Act. The Michigan law has all the major provisions of the Uniform Act.
Thorpe: A number of states and the U.S. Navy Criminal Investigative Service have required video records of interrogations for a while now. What has been their experience?
Newman: The experience of other jurisdictions has been uniformly positive. In today’s world where every detail of one’s life is subject to being recorded there is no doubt that juries expect to see the police interaction with a suspect recorded. Further, there is no better way to avoid courtroom challenges to statements than by having the entire process recorded. Recording adds transparency to the process, which is an essential component of fairness and trust in the system.
Thorpe: The Michigan law says, in part, “A major felony recording shall include the law enforcement official’s notification to the individual of the individual’s Miranda rights.” So arguably, this technology protects law enforcement, too, doesn’t it?
Newman: Absolutely. The law enforcement community is protected by video cameras in cars, audio microphones on their person and cameras in the interrogations rooms. The insurers for police departments have been very supportive of our efforts to record interrogations.
Thorpe: In Great Britain it’s against the law for a police officer to lie to a suspect during an interrogation. Not so here. Will recording interrogations discourage these “tricks of the trade?”
Newman: It is certainly possible that interrogation techniques may be altered in light of the recording but I would think the alterations would not be significant at first. Law Enforcement interrogation techniques are the result of years of studies. The ultimate decision maker on change will likely be juries. If acquittals occur as a result of juries rejecting the techniques utilized to obtain a confession or incriminating statement that will force a change in technique.
Thorpe: How will the equipment needed for the systems be paid for?
Newman: Paying for the equipment was and continues to be a difficult question. Police agencies are losing funding at rapid rates and buying new equipment is not likely to be a priority. MCL 763.11 is the funding mechanism for the bill and requires MCOLES to recommend a funding appropriation each year to the Legislature and for the Legislature to appropriate such funds. However, there is nothing that mandates that the Legislature appropriate the entire amount of funds recommended.
Thorpe: What will be the role, if any, of these recordings in a courtroom situation?
Newman: The recordings are likely to be very powerful evidence in the courtroom and therefore, a powerful incentive to enter a plea. So, it is yet to be determined what will be the impact of the recordings.
Thorpe: Some have criticized the new law for not having a harsh enough penalty for noncompliance. What is that penalty?
Newman: The penalty for noncompliance is set forth in MCL 763.9 and is a jury instruction telling the jury that recording is the law and that the failure to do so may be used in evaluating the evidence relating to the person’s statement. There were some on the committee who called for a harsher penalty, such as preclusion of the statement, but such a harsh penalty for a procedural failure is not warranted. The statement is subject to the constitutional requirements and recording or failing to record does not diminish those constitutional prerequisites to admittance of the statement.
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