Daily Archives: April 21, 2007

Videotaped interrogations gets pilot program

Connecticut is set to join several other states considering videotaping interrogations. Only four states thus far require it (AK, MN, ME and DC). The appropriations committee has set aside 100K a year for ’08 and ’09 to test it out. Videotaping of interrogations has become increasingly important what with the explosion of false confession claims over recent years.

“Electronic recording of interrogations will assure protections to the innocent,” said Amanda Melpolder, a policy advocate for the Innocence Project, which has helped exonerate 198 people since it was established in 1992.”Less than ideal interrogation procedures have contributed to or been the main factor in nearly one in five wrongful convictions of individuals later exonerated through DNA evidence,” Melpolder said. “In each of these cases, the true perpetrator remained at large. … The mandatory recording of interrogations is a reform whose time has come.”

Of course, not all agree, especially law enforcement. Their main concern is that it will “hinder the investigators’ interview techniques”. As opposed to ensuring there are no false confessions.

Public Safety Commissioner John A. Danaher III said in his testimony for a recent legislative hearing on the matter. “Defense attorneys may use the tape in an attempt to divert the focus of the jury’s attention in a criminal trial from the accused to criticism of an investigator’s interrogation techniques.”

Good job by the legislature and I hope the pilot program will convince them that this needs to become law in Connecticut.

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“tender years” and Crawford

Karl of CDW helpfully points out that there is a a big Constitutional roadblock to the tender years exception statutes: Crawford v. Washington, 541 U.S. 36 (2004) [pdf]. He directs me (and those interested) to State v. Snowden, [pdf] a Maryland case which is on point and oft-cited.

The statements that “tender years exceptions” typically seek to make admissible are testimonial in nature and made outside the presence of the defendant or defense counsel. This is clearly a Crawford violation. Crawford held generally that testimonial statements may not be admitted in evidence through non-declarant witnesses unless the declarant is unavailable and there is a prior opportunity for cross-examination. For the purposes of CT’s statute, testimonial means:

[3] “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.

In fact, Maryland’s tender years statute looked rather similar to that of Connecticut. Connecticut permits testimony by the victim outside the presence of the defendant, if the court finds that there is a compelling need to do so. This is not exactly on point, so I think the tender years statute should be rejected under Crawford.

The Confrontation Blog has mountains of coverage on post-Crawford decisions.

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