Summary
The District of Columbia has a statute requiring recording of custodial interrogations.
Statute
Citation: D.C. Code §§ 5-116.01-03 (2006).
General rule: The Metropolitan Police Department (MPD) shall electronically record, in their entirety, and to the greatest extent feasible, custodial interrogations of persons suspected of committing a crime of violence, when the interrogation takes place in MPD interview rooms equipped with electronic recording equipment. Recordings shall commence with the first contact between the suspect and law enforcement personnel once the suspect has been placed within the interview room, and shall include all subsequent contacts between the suspect and law enforcement personnel in the interview room. The recording shall include the giving of any warnings required by law, the response of the suspect, and the consent of the suspect, if any, to the interrogation. § 5-116.01(a).
Circumstances that excuse recording: If the suspect announces that he/she will speak with law enforcement personnel only if the interrogation not be further recorded, the remainder of the interrogation need not be recorded. Law enforcement personnel shall not expressly or implicitly encourage the suspect to give conditional consent in lieu of a completely recorded interrogation. § 5-116.01(b)-(c).
Consequences of unexcused failure to record: Any statement of a person accused of a criminal offense in the D.C. Superior Court obtained in violation of § 5-116.01 shall be subject to the rebuttable presumption that it is not voluntary. The presumption may be overcome if the prosecution proves by clear and convincing evidence that the statement was voluntarily given. § 5-116.03.
Note: The Chief of the MPD may issue a General Order establishing additional procedures, not inconsistent with the statute. § 5-116.02.
Cases
In In re D. W., 989 A.2d 196 (D.C. 2010), a 15 year old mildly retarded male was questioned in the Youth Division regarding alleged sexual abuse of an 11 year old female. Following a bench trial and conviction, the D.C. Court of Appeals affirmed, holding that the defendant had knowingly and voluntarily waived his Miranda rights. The Court said, “Especially in light of the [trial] court’s opportunity to view the video recording, we discern no basis to disturb the court’s conclusion that D. W. gave a valid waiver of Miranda rights.” (989 A.2d at 204.)
In Napper v. United States, 22 A.2d 758 (D.C. 2011), during a videotaped recorded interview in a police station, the officers left murder suspect alone in the room, and he made a cell phone call in which he made damaging admissions, while attempting to hide his phone from the video camera. On appeal from a conviction for first degree murder, the D.C. Court of Appeals affirmed, ruling that the suspect-defendant had no expectation of privacy in the interview room, and his secretive behavior evidenced his knowledge that he was being recorded.
Miscellaneous
The District of Columbia Metropolitan Police Department General Order 16, effective February 2006.
Statement of purposes: The purposes of recording custodial interrogation conducted in MPD interview rooms equipped with electronic recording equipment are to create an exact record of what occurred; provide evidence of criminal culpability; document the suspect’s physical condition and demeanor; refute allegations of police distortion, coercion, misconduct, or misinterpretations; reduce the time to memorialize the interrogation; reduce the time to litigate suppression motions; enable the interviewer to focus completely on his/her questions and the suspect’s answers without the necessity of taking notes; and enable the investigator/detective to more effectively use the information obtained to advance other investigative efforts. § I.
General rule: The MPD policy repeats the D.C. statutory language requiring recording of interrogations of persons suspected of committing crimes of violence, and provides that the policy applies also to “other crimes as listed in this directive.” § II. Crimes of violence are listed in § III-2, and additional offenses that require electronic recording are listed in § IV-B,C. Custodial interrogations are to be conducted by detectives/investigators, in an MPD interview room, and shall be video and audio recorded. § IV-E,F,I.
The suspect’s consent to recording is not necessary. Interviewers shall not encourage a suspect to request that the recording equipment be turned off. § IV-O. The suspect is to be seated so that his/her face is visible on camera, and if possible the interviewer’s face should also be visible. § V-C-3. Provisions are made for non-English speaking and hearing-impaired suspects and juveniles. § V-D,E. Approval of audio recordings are provided for in §§ IV-K-3 and V-H-2.
Circumstances that excuse recording: If the equipment malfunctions or is inadvertently not turned on, or for some other reasons the recording cannot be made, the circumstances shall immediately be reported to the SDD Watch Commander, and documented in WACIIS. Each failure to electronically record a custodial interrogation due to equipment failure shall be explained and documented in a report to the Assistant Chief, Operational Support Command. § IV-L,M.
If the video/audio recording equipment fails to operate properly before, or during, a recorded custodial interrogation, the individual may be transported to the nearest location equipped to handle video/audio recordings. § V-B.
If the subject states that he/she will voluntarily speak with law enforcement personnel only if the custodial interrogation is not electronically recorded, then the recording equipment shall be turned off. The interviewer will record the subject making this request in order to document that the request was made. § IV-O.
Preservation: “The detective who conducted the interview shall retain one copy for the case file, and provide the original and all other copies to a supervisor. The recording(s) shall be considered evidence, and shall be subject to all MPD policies, directives, and regulations pertaining to the storage and handling of evidence as outlined in General Order 601.1….” § V-6.
Public statement by a veteran detective in the D.C. Metropolitan Police Department, James Trainum:
I’ve been a police officer for 25 years, and I never understood why someone would admit to a crime she didn’t commit. Until I secured a false confession in a murder case….I used standard interrogation techniques – no screaming or threats, no physical abuse, no 12-hour sessions without food or water.
Many hours later, I left with a solid confession.… At first, the suspect couldn’t tell us anything about the murder, and she professed her innocence. As the interrogation progressed, she became more cooperative, and her confession included many details of the crime….Confident in our evidence and the confession, we charged her with first-degree murder. Then we discovered that the suspect had an ironclad alibi….the case was dismissed, but we all still believed she was involved in the murder. After all, she had confessed….
…we had videotaped the interrogation in its entirety. Reviewing the tapes many years later, I saw we had fallen into a classic trap. We ignored evidence that our suspect might not have been guilty, and during the interrogation fed her details of the crime that she repeated back to us in her confession. If we hadn’t discovered and verified her alibi – or if we hadn’t recorded the interrogation, she probably would have been convicted of first- degree murder and would be in prison today….
Videotaping interrogations is proved to decrease wrongful convictions based on false confessions. When the entire interrogation is recorded, attorneys, judges and juries can see exactly what led to a confession. …The only police officers I’ve met who don’t embrace recording interrogations are those who have never done it. Too many police officers still wrongly believe that recording interrogations will be logistically difficult and expensive, and that guilty suspects won’t confess if they knew they are being recorded. (Los Angeles Times, October 28, 2008. See also http://www.thisamericanlife.org/radio-archives/episode/507/confessions?act=1.)