Accused killer Steven Hayes is attempting to get a judge to rule that his “confession” to police should be excluded from his trial. Hayes is claiming that the failure to tape record the interrogation in a death penalty case presents a major constitutional impediment to the admission of the statement before his jury.
The Fourth Amendment to the Constitution protects against unreasonable searches and seizures. The Fifth Amendment guarantees the right to be free from self-incrimination; while the Sixth Amendment guarantees the right to counsel at all critical stages of the proceedings. In short, interrogations of prisoners in police custody must follow the proscriptions of these three Amendments. The so-called Miranda warnings require police to inform suspects that they need not answer questions, and have access to a lawyer. If police fail to abide by these dictates the accused can seek to have the court suppress or exclude the confession from evidence in the case.
For decades the courts have examined cases where an accused claims that his confession was given involuntarily. We have come a long way from the days of rubber hose interrogations. Custodial interrogations can overwhelm the innocent at times. Threats, deprivations, long exhausting hours all can combine to overbear the will of the weak minded. Our case-law is replete with instances where judges have invalidated a confession because of the manner in which it was obtained. Amnesty International USA published an extensive critique of police interrogation practices, chronicling a number of cases where police used questionable tactics to extract confessions from suspects who were ultimately found to have been wrongfully convicted. The article, entitled “False Confessions: Scaring Suspects to Death” appeared in a 2007 issue of Amnesty International Magazine (http://www.amnestyusa.org/amnestynow/false_confessions.html). The author describes something called the Reid Technique, an interrogation tool designed to cause increasing tension and disorientation.
In recent years there has been a growing movement to record interrogations, particularly in a murder case where the death penalty is a possibility. In Australia, for example, an unrecorded confession will not be admissible, ” . . .if the confession or admission was made in circumstances where it was reasonably practicable to tape record [it].”
Recording interrogations allows a reviewing court to see firsthand the manner in which a statement was obtained. It can eliminate the need for countless court hours spent reviewing witness testimony about the questioning process. It protects the police as well as the accused. Over 450 law enforcement agencies are now recording interrogations. Eight states are now mandating such recordings. In death penalty cases where there is a “confession” a lawyer who fails to challenge the confession, including whether it was given voluntarily, falls short of the Sixth Amendment’s requirement for effective assistance of counsel.
The F.B.I. prohibits the recording of interrogations as a matter of policy. This practice has lately come under fire, highlighted by the recent firing of Arizona U.S. Attorney Paul Charlton. Charlton became a vocal critic of this policy following a plea bargain in a brutal murder investigation. Apparently the F.B.I. believes that recordings would dissuade suspects from talking and reveal interrogation practices that may adversely affect jurors’ perceptions of the process. When an accused claims his confession has been obtained involuntarily he can seek to have a court suppress it. If the judge rules that it is admissible then the accused can attempt to persuade the jury to ignore it as involuntarily given. Congress is now reviewing the F.B.I. policy.
While recording of such interviews has merit, presently the failure to do so does not rise to the level of a constitutional defect in the process. Nevertheless, the issue will ultimately be addressed by our Supreme Court if Hayes is convicted.
Rich Meehan is a senior partner in the law firm of Meehan, Meehan & Gavin, LLP, Bridgeport, Conn. For more information on Rich or his firm go to www.meehanlaw.com or www.ctdentalmalpracticelawyer.com, or e-mail Rich at rtm@meehanlaw.com
