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Electronically recorded confessions

Provided by John E. Reid & Associates

The topic of electronically recording interviews and interrogations comes up frequently during our seminars. Clearly, there is a national trend in which through state court decisions or legislative efforts police officers are required to electronically record their interrogations and confessions. Recognizing the benefits to the investigator, many departments and agencies have decided, on their own volition, to electronically record interrogations and confessions. 

It has always been our recommendation that if an investigator chooses to electronically record an interview or interrogation session, everything should be electronically recorded. This includes the initial introduction of the investigator to the suspect, the administration and waiver of Miranda or Article 31 advisements, the entire interview, interrogation and confession. 

On the other hand, if only the suspect’s confession is electronically recorded the defense may attack the interrogation. The argument is as follows: Obviously the investigator had access to recording equipment but chose not to record the interrogation because he did not want the jury to see or hear the threats and promises made to the defendant.

Despite this potential danger, there remain many investigators who only electronically record confessions. Furthermore, many prosecutors prefer a summary account of the suspect’s confession, even when the entire interview and interrogation that led up to the confession was recorded. Quite simply, it is easier for juries to absorb a concise confession lasting several minutes than an interview and interrogation that lasting several hours. 

If obtained properly, the electronically recorded confession has tremendous persuasive impact at trial. Conversely, if the recorded confession is not done properly it affords a defense attorney with tremendous ammunition to attack the validity of the confession.

Following are guidelines for obtaining an electronically recorded confession either as a stand-alone document or as a summary account within an electronically recorded interview and interrogation. For illustrative purposes, a burglary investigation will be used. 

Introducing the recorded confession to the suspect

In situations where the investigator has not been electronically recording the interrogation the following approach has been used successfully to get a suspect to agree to have a confession electronically recorded:

“Jim, at this point I need to document what you’ve told me because I need to make sure that I understand everything correctly and that no one later says that you said something that you did not say. So this is for your protection as well as mine. Now we have a couple of choices. You could write out what you’ve told me or I could just ask you about what happened on tape. What are you most comfortable with?”

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