High Expectations and Some Wounded Hopes: The Policy and Politics of a Uniform Statute on Videotaping Custodial Interrogations

Abstract

Much has been written about the need to videotape the entire process of police interrogation of suspects. Videotaping discourages abusive interrogation techniques, improves police training in proper techniques, reduces frivolous suppression motions, and improves jury decision making about the voluntariness and accuracy of a confession. Despite these benefits, only a small number of states have adopted legislation mandating electronic recording of the entire interrogation process. In the hope of accelerating legislative adoption of this procedure and of improving the quality of such legislation, the Uniform Law Commission (ULC) ratified a uniform recording statute for consideration by the states. I was the Reporter for this ULC effort. This Article focuses on the Act’s most interesting and novel provisions: those affecting remedies for police failure to record when required. The Act creates two remedies: suppression of confessions rendered “unreliable” by the failure to record and a cautionary jury instruction. This Article explains and defends both options. In addition, it challenges ULC’s choice to exclude expert testimony as another remedial option. Furthermore, this Article defends the Act’s exemption of police departments from civil liability if they enforce well-drafted rules to promote the Act’s purposes. Ultimately, this Article concludes that, though the Act is not perfect, from a policy perspective, it is an excellent step forward.

Keywords: interrogation, recording, electronic, law enforcement, police, videotaping, electronic, audio, reliability, accuracy, confession, rulemaking, guideline, civil liability, immunity, accountability, transparency, suppression, exclude, jury, instructions, Miranda, ULC, Uniform Law Commission, cautionary

JEL Classification: H10, H80, K10, K14, K40, K42, Z00