In the court of law, the difference between guilt and innocence can often be no thicker than the edge of a dime. Many times, claims that the defendant confessed are a key part of the prosecutor's case. Unfortunately, under current Florida law, the court's determination about whether a confession was illegally forced from a suspect, or whether the suspect ever really confessed at all can be no more accurate than flipping that thin dime.
Contrary to what most Floridians think, the law does not require police to record their interrogations of felony suspects. Instead of listening to an audio recording or watching a video, judges have to listen to hours of conflicting testimony about what happened during the interrogation process. Often, the court's ruling about whether a suspect was given his rights; whether a police officer intimidated him into confessing; or whether the confession ever really occurred amounts to little more than an educated guess. This diminishes the reliability of the criminal justice system, wastes tax dollars, and ties up judges, lawyers and police officers in court.
The Florida Legislature has a unique opportunity to enhance the integrity of the criminal justice system while saving the taxpayers money, by enacting legislation requiring the recording of felony interrogations by law enforcement. House Bill 721 and its companion, Senate Bill 1434, would require just that.
We know that false confessions occur. In 26 percent of cases where DNA later exonerated a wrongfully convicted person, police claimed that person confessed, even though science later proved he could not have committed the crime. Research shows murder cases make up 81 percent of the total number of crimes in which defendants falsely confessed. This doesn't just mean that innocent people are going to prison for murder, it means that murderers are remaining free, because investigations are being closed after the wrong person is arrested.
Police interrogations often involve extreme intimidation and persist for several hours. Under these conditions, people undergoing interrogations may become weary, and can convince themselves that if they just confess, they can go home and fix everything later. This is especially true of innocent people, because their innocence gives them a false sense of security. The elderly, juveniles and the mentally ill are also especially vulnerable.
But recording interrogations doesn't just benefit suspects; it helps law enforcement. For example, John Couey's confession in the Jessica Lunsford murder case in Citrus County was thrown out of court because the judge decided that he may have asked for a lawyer during questioning, something the police swore he never did. Had that interrogation been recorded, the judge wouldn't have had to guess who was right. He would have been able to review an actual recording of the interrogation.
With mandatory recording of interrogations, most suspects' claims of improper police conduct disappear. The courts have to conduct fewer suppression hearings, and those few remaining hearings are shorter. When criminal defendants are confronted with a recording of their confession, more of them plead guilty rather than insisting on jury trials. The FBI recommends felony interrogations be recorded, saying that electronic recordings "help enhance an officer's credibility" and "increase public confidence in police practices."
More than 11 states and 5,000 local jurisdictions require interrogations to be recorded, and prosecutors and police in those jurisdictions believe that the recordings are an asset to their cases. Not one jurisdiction that has adopted mandatory recording of felony interrogations has ever repealed the legislation.
It's clear that recording felony interrogations makes the courts more reliable, saves money, and benefits both law enforcement and those accused of crimes. Nonetheless, the Florida Sheriffs Association opposes the bill. This opposition is especially hard to understand when we consider that the same Florida Sheriffs Association fought for and won passage of a law that requires all internal investigations of police officers to be recorded.
I believe that all Floridians deserve the same rights as cops accused of wrongdoing, and that they want our courts to have the information they need to make the right decision in every case. Judges, not cops, should control the evidence in criminal cases, and our juries should hear what happens during interrogations for themselves. The criminal justice system works best when we all have access to that one thing the courts are always looking for: the truth.
A. Russell Smith, Esq., is president of the Florida Association of Criminal Defense Lawyers.