Principles of the Law, Policing

The following entry is the Black Letter and Comments of Tentative Draft No. 2, 11.02. Recording of Police Questioning.

The full draft contains Reporters’ Notes. This draft will be presented to membership at the 2019 Annual Meeting for approval. Until approved, this is not the position of The American Law Institute and should not be represented as such.

§ 11.02. Recording of Police Questioning

          Written policies should set out the procedures for the recording of questioning, and for the disclosure and the retention of recorded evidence, and should provide that:

                    (a) absent exigent circumstances, officers should record questioning of suspects in its entirety;

                    (b) officers should record questioning of witnesses whenever feasible; and

                    (c) in situations in which recording is not conducted, officers should document questioning, taking notes contemporaneously when possible, and memorializing conversations immediately thereafter.

Comment:

          a. Recording questioning of suspects. A suspect, or a person who police have reason to believe committed a crime being investigated, may be questioned in a manner that is inherently more accusatory and coercive than the manner in which police question a witness, or a person who police believe has information about a crime. Police may not know whether a person is a witness or also a suspect when they initiate questioning, and when in doubt, they should therefore err on the side of providing the procedures available to suspects. Unless exigent circumstances make it impossible, questioning of suspects should be recorded, in its entirety, including the provision and waiver of Miranda rights. This is essential to ensure a complete record and to prevent any doubt about what happened outside the record. Video recording is preferable. Exigent circumstances might include equipment failure combined with a pressing public-safety need to conduct questioning without delay. Recording may be less feasible in the field, though body-worn cameras may be available for recording purposes. Cost considerations also are relevant, both for police and legal actors, particularly if recording is extended beyond questioning of suspects.

          Suspects should be told that they are being recorded. For some suspects who are not willing to speak if recorded, procedures should make available the option of not recording or using methods to redact video or audio to mask the identity of the witness. Policy and procedure should make available and define such special precautions to officers. Video cameras should be positioned so that the field of view includes both the officer and the person being questioned. Policies, at the agency level or preferably at the state level, should provide procedures for recording interrogations. Such policies should provide clear instructions for stopping and starting the recording. Governments should make resources available to agencies to purchase and maintain equipment needed to record the questioning of individuals.

          b. Recording questioning of witnesses. Questioning of witnesses may sometimes be conducted in less formal settings, but such questioning should be recorded whenever feasible. Witnesses should be told that they are being recorded. As with suspects, there may witnesses who are not willing to speak if recorded and there may be safety and security concerns that counsel redacting video or audio to mask the identity of the witness. Policy and procedure should make available and define such special precautions to officers. When such a recording is not conducted, officers should take notes contemporaneously to provide as accurate and timely a record as possible of what transpired. If there is not a recording, any reporting or memorialization of those conversations similarly should occur immediately after questioning.

          c. Disclosure. Agency policies should set out rules for disclosure of recordings to lawyers in discovery and for storage of archived records.

          d. Retention. As discussed elsewhere in these Principles, clear policies should set out the rules for retention of recorded statements. Such evidence should be retained in a manner designed to be usable in the future, and should not be dependent on technology that is proprietary or likely to be obsolete in a way that might hamper future access.

Barry Friedman

Reporter, Policing Principles

Barry Friedman is the Jacob D. Fuchsberg Professor of Law and Affiliated Professor of Politics at NYU Law.  He is one of the country’s leading authorities on constitutional law, policing, criminal procedure, and the federal courts. He is the author of the critically-acclaimed The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (2009), and the forthcoming book on policing and the Constitution, Unwarranted: Policing without Permission(February 2017). He is the founding director of NYU Law’s Policing Project.

Brandon L. Garrett

Associate Reporter, Policing Principles

Brandon L. Garrett is the L. Neil Williams, Jr. Professor of Law  at Duke Law School. His research and teaching interests include criminal procedure, wrongful convictions, habeas corpus, corporate crime, scientific evidence, civil rights, civil procedure and constitutional law. Garrett’s recent research includes studies of DNA exonerations and organizational prosecutions. In addition to numerous articles published in leading law journals, he is the author of five books, including: The Death Penalty: Concepts and Insights (West Academic, 2018) (with Lee Kovarsky); and End of its Rope: How Killing the Death Penalty Can Revive Criminal Justice (Harvard University Press, 2017).

Rachel A. Harmon

Associate Reporter, Policing Principles

Rachel Harmon is the F.D.G Ribble Professor of Law at the University of Virginia School of Law.  She teaches in the areas of criminal law, criminal procedure and civil rights, and her scholarship focuses on policing and its regulation. From 1998 to 2006, Harmon served as a prosecutor at the U.S. Department of Justice. After a brief stint at the U.S. Attorney’s Office in the Eastern District of Virginia, Harmon worked in the Civil Rights Division, Criminal Section, prosecuting hate crimes and official misconduct cases, many of which involved excessive force or sexual abuse by police officers.

Tracey L. Meares

Associate Reporter, Policing Principles

Tracey L. Meares is the Walton Hale Hamilton Professor of Law at Yale Law School. She has worked extensively with the federal government, having served on the Committee on Law and Justice, a National Research Council Standing Committee of the National Academy of Sciences from 2004–2011. Additionally, she has served on two National Research Council Review Committees: one to review research on police policy and practices, which produced the book, Fairness and Effectiveness in Policing: The Evidence and another to review the National Institute of Justice, Strengthening the National Institute of Justice. In November of 2010, she was named by Attorney General Eric Holder to sit on the Department of Justice’s newly-created Science Advisory Board; and in December 2014, President Obama named her as a member of his Task Force on 21st Century Policing.

Christopher Slobogin

Associate Reporter, Policing Principles

Christopher Slobogin is the Milton R. Underwood Chair in Law; Director, Criminal Justice Program; and Affiliate Professor of Psychiatry at Vanderbilt Law School. He has authored more than 100 articles, books and chapters on topics relating to criminal law and procedure, mental health law and evidence, and is one of the five most cited criminal law and procedure professors in the country.  Particularly influential has been his work on the Fourth Amendment and technology and his writing on mental disability and criminal law.

Jennifer Morinigo

The American Law Institute

0 Comments

Submit a Comment

Your email address will not be published.