I was prosecuting a criminal case once and my witness, a state trooper, had done a good job testifying on direct examination.
The defense attorney was a hard charging guy who had taught me some valuable lessons when I was a new lawyer. During an uncustomarily gentle cross-examination of my trooper, the attorney strolled over to his briefcase and brought out a small tape cassette & player and laid them on the defense table.
Then he asked:
Now Trooper, my client didn’t agree to let you search his car, did he?”
“Yes, he did,” the trooper said.
“Are you sure?“
“Yes.” The trooper got a funny look on his face as he (and everyone in the room) wondered where this was going.
“Isn’t it true,” the attorney persisted, “that he told you ‘NO’ and you said you would search anyway?“
“No,” the trooper said again. The attorney picked up the tape and began to load it into the player.
“Are you sure?” the attorney said, as he waived the cassette player around in front of the witness. This was about the time that my witness directed that what-do-I-do-now look to me sitting at the prosecution table.
Naturally, I looked away from the Trooper (giving him the universal “you’re on your own now” signal).
Seeing no aid coming from me, the trooper squared his shoulders, looked the attorney in the eye and said “Your client gave me permission to search.” The defense attorney stared hard at him. The trooper gave him a cast-iron stare back.
Then the attorney switched to another line of questioning as he slipped the recorder back into his briefcase. The match was over and his client was quickly convicted.
I believed the trooper that day; and not just because the lawyer blinked and the trooper didn’t. The trooper had always been a straight shooter and I expect he still is. But at that moment, he and I both wished that WE had a tape to prove what had been said.
Now comes this story of a New York police detective being charged with 12 counts of perjury because a teenager was smart enough to record his interrogation using an MP3 player. Unfortunately, the detective swore under oath that the interrogation had not occurred at all.
A dirty cop is more damaging to the criminal justice system than anything I can imagine. If he lies, it may take a long while before prosecutors and the courts catch on. Meanwhile, innocent people are charged, perhaps convicted.
Once the perjurer is caught, the public looses confidence in the system and juries are less likely to convict the guilty, thus turning the entire system on its head.
Perhaps it is time for Missouri to join those states that have required audio and/or video recording of all custodial interrogations of suspects.
These days high quality digital audio recorders that fit unseen in a pocket, record for 36 hours straight, and costs fifty bucks are available at any Walmart. If I was a police officer, I’d carry one for the whole shift, if only for my own protection.
It could be mandated that recording must begin at–and include the reading of–the suspect’s Miranda rights and continue, uninterrupted, until the end of the interview. This would end a common practice of obtaining a confession (by unknown means), then smoothing out the rough spots with the suspect; and only then turning on the camera for the jury.
It may be appropriate to require video recording at the police station, but allow audio-only in the field.
There could be reasonable exceptions for unusual situations where the police make a good faith effort to follow the rules, but otherwise, statements of the defendant while in custody would not be admissible unless recorded.
It hard to see the downside of such a rule. It protects the accused. It protects the police from false accusations. I suspect police and prosecutors would integrate the practice very easily. Courts and juries would love it. So why not do it?