Friday, October 31st, 2014

The Obameter

Encourage videotaping of interrogations in capital cases


Will encourage states to adopt a law similar to one he shepherded through the Illinois legislature, "requiring videotaping of interrogations and confessions in capital cases to ensure that prosecutions are fair."


Updates

Obama administration goes beyond its original promise

Last year, we gave President Barack Obama a Promise Kept for encouraging states to establish policies requiring law enforcement officers to videotape interrogations and confessions in capital cases.

Now, the administration has exceeded its original goals, with some federal agencies now taking on recording policies -- even beyond capital cases.

On May 22, Attorney General Eric Holder announced that the FBI and several other federal law enforcement agencies will soon be expected to electronically record interviews with suspects in most instances.

"Creating an electronic record will ensure that we have an objective account of key investigations and interactions with people who are held in federal custody," Holder said in a news release. "It will allow us to document that detained individuals are afforded their constitutionally protected rights. And it will also provide federal law enforcement officials with a backstop, so that they have clear and indisputable records of important statements and confessions made by individuals who have been detained."

This is a major change for the FBI, whose policy previously prohibited recording unless authorized by a supervisor, according to a 2006 memo. The change also affects the Bureau of Alcohol, Tobacco, Firearms and Explosives, the Drug Enforcement Agency and the Marshals Service.

This move goes beyond Obama's promise, which had only said that the federal government would encourage states to adopt such policies.

Laws similar to one Obama spearheaded in Illinois as a state senator spread to a number of states during his first few years as president. By December 2013, 19 states and the District of Columbia had created such laws—some of which require recording in nearly all serious crimes, not just capital ones.

Discussions about recording interrogations at a federal level have been in the works for most of the Obama administration, NPR reported. Law enforcement officials learned of the policy change in a May 12 memo.

Under the law, which will take effect July 11, recording is not required in cases of national security or public safety, as well as when recording equipment is not available in time and if the suspect asks not to be recorded. However, the recording may be covert.

The Obama administration has gone above and beyond its original goals, so we are keeping this at Promise Kept.

Sources:

Justice Department, memo from Deputy Attorney General James Cole, May 12, 2014

Justice Department, news release from Attorney General Eric Holder, May 22, 2014

FBI, memo from Office of the General Counsel, March 23, 2006

NPR, "New DOJ Policy Urges Agents to Videotape Interrogations," May 21, 2014

John E. Reid and Associates, Inc., list of states with interrogation recording statutes, December 2013

New York Times, "In Policy Change, Justice Dept. to Require Recording of Interrogations," May 22, 2014

State laws now often go beyond just capital cases

When Barack Obama was an Illinois state senator, he authored a law that required the videotaping of interrogations and confessions in capital cases. In the last few years, the support for that approach has grown so much that that most new state laws address all serious felony cases, rather than just capital crimes.

The growth in this approach is worth noting as we look at whether Obama has kept his promise to encourage states to adopt laws "requiring videotaping of interrogations and confessions in capital cases to ensure that prosecutions are fair."

According to the Innocence Project -- a group that works to overturn wrongful convictions -- 17 states plus the District of Columbia now have reasonably strong laws requiring videotaping of interrogations, typically for serious felonies beyond capital crimes. The states with such laws are Alaska, Connecticut, Indiana, Iowa, Maine, Maryland, Massachusetts, Minnesota, Missouri, Montana, Nebraska, Nevada, New Jersey, New Mexico, Oregon, Rhode Island and Wisconsin.

"The policy has been spreading widely over the last couple years,” said Barry Scheck, co-founder and co-director of the Innocence Project.

For instance, New York City Police Commissioner Ray Kelly announced in September 2012 that his officers will begin expanding their videotaping efforts, due in part to the expectations of a public that flocks to police shows like CSI.

"We believe there's a growing expectation on the part of juries that interviews will be recorded -- call it part of the 'CSI' effect," Kelly said in a speech at the Carnegie Council, ABC News reported.

Such practices likely would have spread without federal encouragement. The International Association of Chiefs of Police has been promoting practices such as videotaping that are designed to minimize wrongful convictions.

Still, Obama's Justice Department has played a role encouraging the practice.

Three Justice Department offices -- the Bureau of Justice Assistance, the National Institute of Justice and the Office for Victims of Crime -- co-sponsored an August 2012 National Summit on Wrongful Convictions hosted by the police chiefs' association.

In an address to the conference, Mary Lou Leary, the acting assistant attorney general, said the department has been supporting "training and technical assistance to improve the investigation and litigation of these cases” in cooperation with the National Association of Criminal Defense Lawyers and other groups, including three national training sessions attended by a total of 520 people nationwide.

Meanwhile, a bill sponsored by retiring Sen. James Webb, D-Va., could have led to a spread of videotaping laws, among other criminal-justice reforms. But the measure has languished in the Senate. The bill would have created a National Criminal Justice Commission to review and make recommendations on all areas of the justice system, including federal, state, local, and tribal governments' criminal justice costs, practices, and policies. The commission was modeled on one under the late Robert F. Kennedy that helped change how bail and indigent representation are handled.

Despite garnering 31 co-sponsors in the most recent Congress, however, the bill did not make it out of a Senate committee.

Even so, the Justice Department has spent money and lent rhetorical support to reforms to stem wrongful convictions, including the videotaping of interrogations. We rate this a Promise Kept.

Sources:

Mary Lou Leary (acting assistant attorney general), remarks to the National Summit on Wrongful Convictions, Aug. 22, 2012

Innocence Project, "A Plea to Pass Federal Criminal Justice Reform,” Sept. 15, 2011

Text of S. 306, (the National Criminal Justice Commission Act of 2011)

ABC News, "'CSI' Inspires NYPD to Video Tape Interrogations, Commissioner Says," Sept. 19, 2012

Email interview with Eugene O'Donnell, lecturer in Law, Police Science and Criminal Justice Administration at the John Jay College of Criminal Justice, Jan. 3, 2013

Email interview with David A. Harris, law professor at the University of Pittsburgh, Jan. 3, 2013

Email interview with Paul Cates, communications director for the Innocence Project, Jan. 4, 2013

Interview with Barry Scheck, co-founder and co-director of the Innocence Project, Jan. 4, 2013

No sign of action

During the presidential campaign, Barack Obama promised that he would encourage states to adopt reforms "requiring videotaping of interrogations and confessions in capital cases to ensure that prosecutions are fair."

While an Illinois state senator, Obama authored a law that required the videotaping of interrogations and confessions in capital cases. The goal was to ensure fairness and accountability in interrogations. The law passed on a unanimous vote and many said helped put Obama on the map for his skill in working with Republicans, Democrats, police and prosecutors.

But there's no sign he's pursued such laws since becoming president. Searches of the Web sites of the White House, U.S. Department of Justice, National Governor's Association, and many other sites failed to turn up any tangible progress on this promise.

Perhaps the administration will be pursuing this in the future, but so far we see no progress. So we're rating this one Stalled.

Sources:

Extensive searches of Whitehouse.gov, the U.S. Department of Justice and other Web sites.