equipment. If better technology comes along, and its
cost is reasonable, the police should experiment with it
if there is a reasonable chance that it can assist them in
their work” (p. 153).
The second report by attorney Thomas Sullivan in
2004 similarly found positive responses from those
departments videotaping custodial interrogations. The
following are some of the reasons mentioned by officers
in Sullivan’s report for embracing the videotape prac-
tice: It eases the public’s concerns for how suspects in
custody are treated; it eliminates the need for extensive
note taking, so that officers can better observe suspects’
nonverbal behavior; videotapes serve as a useful teach-
ing tool for demonstrating appropriate interrogation
techniques; and subsequent viewing of videotapes can
reveal incriminating information missed during the live
interrogations. Sullivan believes that once the police try
videotaping, they will not want to go back to older
methods, and he argues that the widespread acceptance
of this practice will “benefit suspects, law enforcement,
prosecutors, juries, trial and reviewing court judges, and
the search for truth in our justice system” (p. 28).Compelled Recording of
Interrogations by Court
Order or Legislative Statute
The electronic recording of interrogations was man-
dated for the first time in the United States by the
Supreme Court of Alaska. The court’s ruling issued in
1985 was based on the state constitution’s due process
clause. The justices reasoned that “recording...is now
a reasonable and necessary safeguard, essential to the
adequate protection of the accused’s right to counsel,
his right against self-incrimination and, ultimately, his
right to a fair trial” (Stephan v. State, 1985). Nine years
later, the Supreme Court of Minnesota also ruled for
compulsory videotaping, stating that “an accurate
record makes it possible for a defendant to challenge
misleading or false testimony and...protects the state
against meritless claims” (State v. Scales, 1994).
Decisions by state Supreme Courts in Massachusetts,
New Jersey, and New Hampshire fell short of ruling
that their state constitutions mandate recording of inter-
rogations. Nevertheless, in each of these states, the
highest court held that failure to offer a custodial
recording at trial could be a basis for the presiding
judge to suppress any purported confession offered by
the prosecution. Furthermore, should the judge admitan unrecorded confession into evidence, it was held that
the jury would be instructed to exercise great caution in
the weight given to the prosecution’s claim that the
defendant made self-incriminating statements. These
decisions have generally led many police departments
in these states to implement custodial recordings to
avoid the possibility of their confession evidence being
thrown out or having it greatly diluted by unfavorable
jury instructions.
In 2004, Illinois became the first state to require by
statute complete custodial recordings. Following
Illinois’s lead, Maine, New Mexico, Wisconsin, and
the District of Columbia have since enacted similar
recording legislation. Several additional states
have prorecording bills currently under legislative
consideration.Possible Drawbacks of the
Videotaping Practice
As the foregoing discussion suggests, all indications are
that the videotaping of in-custody interrogations will
become a standard law enforcement practice. It is there-
fore prudent to consider any possible downsides associ-
ated with the videotaping procedure or with the manner
in which it might be specifically implemented.RReeccaapp BBiiaass
One concern is the potential prejudicial effect of the
police choosing to record the suspects’ final confession
but not any of the interrogation that preceded it. Both
Geller and Sullivan noted in their survey reports that
such “recap videotapes” are not unusual. Recap video-
tapes are potentially problematic for two reasons. First,
recaps may convey to trial fact finders that the confes-
sion was more voluntary than they would otherwise
perceive it to be if the interrogation in its entirety was
available for them to observe. Second, recaps often are
recorded after suspects have been asked to recount their
stories multiple times. By the time the camera is
rolling, their statements may be accompanied by little
of the emotion and agitation that might have been pre-
sent the first time they revealed the self-incriminating
information. Recap videotapes, then, may make sus-
pects appear far more callous and unremorseful than is
in fact the case, which in turn could bias the jury against
them. Awareness of this issue has led most courts and
legislative bodies that have made custodial recordingsVideotaping Confessions——— 845V-Cutler (Encyc)-45463.qxd 11/18/2007 12:44 PM Page 845