Confessions are among the most compelling and critical pieces of evidence in a criminal trial. Even without any physical evidence tying a defendant to a crime, a few simple words can be enough for a conviction.
Words like “Something just took over me and I just choked him.” That is what Pedro Hernandez told police investigators after they arrested him in 2012 in connection with the 1979 disappearance and presumed murder of 6-year-old Etan Patz.
This part of his confession was videotaped; the tape was played in open court for the first time this week. But nearly eight hours of interrogation that came before this confession were not recorded.
Mr. Hernandez’s lawyer says the confession was false or coerced, and wants it thrown out because, he says, Mr. Hernandez’s history of mental illness and intellectual disability made him unable to understand his right to remain silent. The confession included many precise details describing the boy’s abduction and murder, but several statements contradict established facts in the case.
This is the problem with unrecorded interrogations. Without a full record of the interaction between Mr. Hernandez and the police, how can a judge or jury decide whether he was coerced or not?
In fact, false or coerced confessions are disturbingly common. In almost 30 percent of cases where convictions were later overturned because of DNA evidence, the defendant gave a false confession or other statement. Police and other law enforcement officials have long resisted recording interrogations, but that resistance is ebbing as the benefits become clear.
For police, it is insurance against claims of coercion or mistreatment. For prosecutors, it saves resources by encouraging plea deals. For innocent defendants, it can prevent wrongful convictions. And, of course, it protects the public by ensuring that the right people are charged and convicted.
About 850 police agencies around the country now voluntarily record most or all interrogations, according to the Innocence Project. Fourteen states and the District of Columbia have passed legislation requiring recording, and courts in seven more have either required or encouraged it. In May, the Justice Department announced that the F.B.I. and other federal law enforcement agencies would begin recording interrogations in most cases.
Yet in New York City, videotaping such sessions has long been frustratingly scattershot. That seemed to change in 2012, when Raymond Kelly, then the police commissioner, adopted a policy to videotape all interrogations in cases of murder, serious sex crimes and felony assaults. Yet a year later, only a third of detective squads were recording interrogations. The department now says 48 of the city’s 77 precincts are equipped for recording, with the remainder to be ready by 2015.
While upstate police agencies have lately been much better about adopting recording policies, the best solution would be legislation mandating recording uniformly across the state. Such a law has been endorsed by Gov. Andrew Cuomo and many law enforcement officials, but it has died repeatedly in Albany.
If the police are confident they have their man, then why not be transparent on questioning? In the 21st century, the failure to record an entire interrogation — particularly in a high-profile murder case — is inexcusable.
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