Amicus Brief
of the
Center on Wrongful Convictions
Northwestern University School of Law

     Calls for electronic recording of interrogations are almost as old as the technology itself. For more than seventy years, reformers from all ranks, including some from law enforcement, have seen recording requirements as a way to eliminate secrecy in the stationhouse and to reduce reliance on "swearing contests" between police officers and suspects about what transpired during the interrogation process.(2) Despite these many calls, to date, only two courts have required that police electronically record custodial interrogations - the state supreme courts of Alaska(3) and Minnesota(4).

     In the post-DNA age, however, particularly in the past decade as the number of wrongful convictions based on false confessions has continued to climb, concerns about the reliability of confession evidence have led to a renewed push for recording requirements. These very concerns led the Illinois General Assembly to become the first legislature to require recording in 2003.5 More recently, the state Supreme Court of New Jersey has heard oral argument on the question of whether to require that law enforcement officers record interrogations,(6) the Massachusetts Supreme Court, on its own initiative, asked for briefing on the question of whether it should require recording and whether it should require greater corroboration of confessions before admitting confessions into evidence,(7) and the Wisconsin Supreme Court recently accepted oral argument on the question of whether to require recording of juvenile interrogations.(8)

     This new context - the problem of false confessions in the post-DNA age - only underscores the urgency of trying to improve the justice system's ability to make accurate assessments of confession evidence and the need for courts to rethink their reluctance to require police to electronically record interrogations, especially in capital cases. In light of these false confessions, it may no longer be fundamentally fair or comport with notions of due process to convict defendants solely on the basis of unrecorded confessions.

     In the instant case, the manner in which Debra Milke was interrogated, the failure I of Detective Saldate to record her interrogation or confession despite being instructed to do so, the fact that Detective Saldate did not memorialize the confession until several days after Debra was arrested, the fact that Detective Saldate destroyed the notes of his conversation with Ms. Milke, the complete lack of detail in Ms. Milke's confession, and the lack of corroboration of her confession, all raise serious concerns about the reliability of her confession and raise the specter that she may have been convicted of a crime she did not commit. To allow Ms. Milke's death sentence to stand under these circumstances would be to ignore the powerful lesson of the post-DNA age - that courts are courting disaster if they do not demand a more objective record of the interrogation process to enable them to make accurate decisions regarding voluntariness and reliability of confession evidence.

I. IN LIGHT OF THE FALSE CONFESSION PROBLEM, COURTS REVIEWING CAPITAL CASES CAN NO LONGER AFFORD TO RELY ON SWEARING CONTESTS BETWEEN DETECTIVES AND SUSPECTS TO DETERMINE IF CONFESSION EVIDENCE IS RELIABLE.

     To date, according to data collected and analyzed by the Innocence Project of Benjamin N. Cardozo Law School, 142 wrongly convicted people have been exonerated by DNA evidence.(9) Of these 142,35 or 25% have involved false confessions or admissions.(10) Of those who have been wrongfully convicted of murders, the percentage of false confessors is even higher. Of the first thirty-seven DNA exonerations in the U.S. for crimes involving murder, two-thirds of the suspects had been convicted at least partly based on incriminating statements or confessions made during interrogations.(11) In a soon to be released study of 125 "proven false confessions," Professors Steven Drizin and Richard Leo found that 81 % of these confessions involved murders, leading them to surmise that murder suspects are most at risk of falsely confessing because it is in these cases - where the pressure on the police to solve crimes is the greatest - that police are most likely to employ the full range of coercive psychological interrogation tactics.(12)

     If Illinois' experience is representative, false and coerced confessions are a particularly fertile source of error in capital cases. Of the first thirteen innocent men who were exonerated from Illinois' death row, seven were convicted on the basis of false confessions, false inculpatory statements, and false confessions of accomplices or co-defendants. Ronald Jones, Gary Gauger, and Rolando Cruz all purportedly confessed to murders they did not commit; Dennis Williams and Verneal Jimerson were convicted and sentenced to death based upon the coerced and false confession of Paula Gray;. Alejandro Hernandez, Rolando Cruz's co-defendant, was convicted on the basis of false inculpatory statements he gave to police, and Joseph Burrows was convicted largely on the false confession of an innocent co-defendant named Ralph Frye. The four remaining defendants who were pardoned by Governor George Ryan in the last days of his tenure on grounds of actual innocence - Leroy Orange, Stanley Howard, Madison Hobley, and Aaron Patterson - were tortured by Chicago police officers into confessing to murders they did not commit.(13) The central role of false confessions in Illinois capital cases led the Illinois Capital Case Commission to recommend that all custodial interrogations in capital cases be electronically recorded,(14) a recommendation which recently was enacted into law, when Governor Rod Blagojevich signed a bill which will require all custodial interrogations in homicide cases to be electronically recorded.(15)

     A recording requirement would drastically reduce the likelihood that false or manufactured confessions would make it into the courtroom unchecked. Only by viewing the entire interrogation process can factfinders reliably determine whether a particular suspect confessed, if the suspect's confession was voluntary, and if the confession is true or false. Without an objective record, usually the only evidence of what occurred in the room is what the officers later put in their reports. Invariably, suspects dispute the accounts contained in these reports. Yet, in nearly every case, these "swearing contests" are resolved in favor of the officers. The version offered by the officer is often found to be more credible because, unlike the suspect, the officer is assumed to have no personal stake in the outcome of the case, and therefore has nothing to lose by being honest.(16)

     According to Yale Kamisar, swearing contests should be rejected not because officers are prone to lie about what transpired in the interrogation process; it is because "that [officer] is not less human - no less inclined to reconstruct and interpret past events in a light most favorable to himself - that we should not permit him to be 'a judge of his own cause."(17) Psychological research over the past fifty plus years supports the claim that human memory is not an accurate source of objective information.(18)

     In a study of rumor transmission conducted over half a century ago, hearsay evidence was determined to only be about seventy percent accurate in reporting the original information given to the subject.(19) Furthermore, the information being recalled was found to "become twisted in such a way as to render the story more coherent, plausible, and well-rounded."(20) And ultimately, hearsay information is reformed by one's memory, unconsciously modified to come into sync with the subject's expectations.(21) By relying only on testimony to determine what was said during an interrogation, the court is accepting a biased account as the truth. Even with the best intentions, an officer's bias will color his memory of the interrogation, and be expressed through his testimony in the courtroom. What makes this inherent memory bias especially dangerous is that recent studies have revealed an inability of interviewers to accurately remember statements. Inaccurate recall of questions and answers removes any ability of the fact-finder to independently interpret the meaning of incriminating statements. Woodall and Warren conducted a study focusing on the legitimacy of hearsay testimony.(22) Twenty-seven experienced professionals were asked to interview preschool children about two events the children had experienced.(23) Researchers found that, when questioned three or four days later, the interviewers were only twenty percent accurate in the recall of specific questions they asked and the answers they were given.(24) The interviewers were almost never able to accurately restate the exact words that the children had used.(25) These results are worrisome since, in order to properly evaluate statements made outside of the courtroom, "jurors and fact finders need to hear not only what the child said ..., but how it was said (a verbatim account including specific questions and answers)."(26) In the arena of criminal interrogations, such a low accuracy rate means that the meanings of all statements, including those which officers misinterpret or which are ambiguous, are only subject to the officer's interpretation. Without knowing exactly what the suspect said, i and in response to exactly what question, the fact-finder has no independent ability to assess the meaning of the suspect's statements.(27)

     In the instant case, the way in which Detective Saldate memorialized the interrogation of Ms. Milke should give this Court little comfort about the accuracy of his C account of her interrogation. Not only did he not tape the interrogation, but whatever notes he took of the interview he later destroyed. When he sat down two or three days after the interrogation to summarize the "confession," there was simply no way he could remember with accuracy what he said to Ms. Milke and what she told him. This Court need not find that Detective Saldate is lying about whether or not Debra Milke confessed in order to reject Detective Saldate's testimony about what transpired during the interrogation process. It need only recognize that as a human being, he suffers from the same inability to recall information accurately as any other human being and is "no less inclined to reconstruct and interpret past events in a light most favorable to himself."(28)

II. FUNDAMENTAL FAIRNESS AND DUE PROCESS DEMAND THAT DEBRA MILKE'S CONVICTION AND DEATH SENTENCE BE VACATED AND THAT SHE BE GIVEN A NEW TRIAL

     Even more serious than the problem of false confessions, however, is the problem of coerced confessions. The false confession cases' have not only demonstrated that judges and juries are often poor at assessing the trustworthiness of confessions, they have also underscored the inaccuracy of judicial determinations of voluntariness. In many, if not most, of the wrongful convictions based on false confessions, judges determined that the confessions were voluntary, juries convicted the defendants, and appellate courts affirmed these findings. Again, these mistakes were made because in the absence of a tape of the interrogation process, factfinders have had to determine the historical facts of the interrogation - the "totality of the circumstances" - based on swearing contests.

     The requirement that a confession must be voluntary in order to be admissible is rooted in the due process clause.(29) Recognizing how potent incriminating statements are to a suspect's ability to defend himself and the inherent unreliability of assessing confession evidence based on swearing contests, courts and legal scholars view the need for an objective record of interrogations as an increasingly significant concern. These courts and legal scholars are recognizing that videotaping is more than good policy. The creation of this type of objective record of interrogations must be viewed as a right of due process.

     In Stephan v. State,(30) the Alaska Supreme Court has already recognized the due ; process necessity of electronically recording all interrogations. The Court came to this conclusion after considering two separate cases in which detectives used audio or video ... recorders at their own discretion during the custodial interrogations, resulting in large portions of the interrogations left unrecorded. In both cases there was conflicting testimony regarding what occurred when the electronic devices were turned off.(31) The Court expressed frustration and suspicion when the officers could offer "no satisfactory excuse" for their discretionary use of the recording devices, especially because such recording had been repeatedly encouraged by the Court in the past.(32) Because of the apparent apathy the officers were showing toward the earlier orders to record interrogation, and the burdensome swearing matches which always resulted without this objective record, the Court held that mandated recording is now "a reasonable and necessary safeguard, essential to the adequate protection of the accused's right to counsel, his right against self incrimination and, ultimately, his right to a fair trial."(33) To be sure that officers followed the decision, an exclusionary rule was imposed when no reasonable excuse can be given for the failure to record an interrogation.(34)

     The Court viewed recording as necessary for the determination of the voluntariness of a suspect's statements. Relying on the swearing matches to determine whether the defendant was given the Miranda warning, understood these warnings, and knowingly waived them, is wasteful, inaccurate and unnecessary.(35) With an objective recording, the fact-finder will have a reliable source from which to make that determination.(36) Suspects will also be able to present a more complete defense, for rather than hopelessly watching the fact-finders rely on the policeman's testimony over his own, an electronic recording will provide "an objective means for him to corroborate his testimony concerning the circumstances of the confession."(37)

     The Stephan Court also pointed to other current problems that will be eliminated with mandated electronic recordings. The incompleteness and subjectivity inherent in relying on human memory will be avoided.(38) Lifting the shroud of secrecy surrounding interrogations will increase the public's confidence in law enforcement officials.(39) And police officers who are "wrongfully accused of improper tactics" will be protected.(40) The Minnesota Supreme Court, in State v. Scales, has also acknowledged the necessity of electronic records of interrogations.(41) While choosing to rely on their "supervisory power to insure the fair administration of justice," rather than due process, this court used similar reasoning to Stephan for holding that "all custodial interrogation including any information about rights, any waiver of those rights, and all questioning shall be electronically recorded where feasible and must be recorded when questioning occurs at a place of detention."(42) Like the Stephan Court, the Minnesota Supreme Court expressed frustration that its frequent warnings to use electronic recordings whenever feasible were not being heeded.(43) Recording interrogations serves many purposes which will reduce wasted resources and encourage a "more professional law enforcement;" there will be less disputes over whether rights were violated, the state will be protected r from having to address meritless claims, and coercive tactics will be discouraged in the interrogation room.(44) Also, because "the trial and appellate courts consistently credit the recollections of police officers regarding the events that take place in an unrecorded interview," an accurate and objective record will allow a defendant more power "to challenge misleading or false testimony."(45)

     In a recent law review article, Professor Christopher Slobogin has laic! out succinctly the argument for resting the recording requirement in the due process clause.(46) Because an accurate record of an interrogation cannot be made based on testimony alone, Slobogin finds that the discretionary failure of police to create an objective record of an interrogation is a failure to preserve crucial evidence.(47) The government has the duty to preserve all exculpatory evidence, and by arbitrarily choosing not to tape an interrogation and therefore depriving the suspect of potentially integral evidence for his defense, the government is not meeting its obligation.(48) Furthermore, considering that the government has the burden of proving voluntariness, without more than conflicting testimony to base their argument on, the prosecutor should lose whenever the defendant reasonably claims that his rights were somehow violated.(49)

     Following Professor Slobogin's reasoning, Detective Saldate's decision to not record Ms. Milke's interrogation should be viewed by this Court as a failure to preserve potentially exculpatory evidence, especially given that he disobeyed direct orders to tape the interrogation. As a result of Saldate's failure to tape the interrogation, the trial court was forced to resolve the issues of whether Ms. Milke was read her Miranda rights, whether she asked for an attorney, whether she confessed and whether she did so voluntarily, on the basis of nothing more than the conflicting testimony of Ms. Milke and Det. Saldate. The prejudice to Debra Milke from Detective Saldate's failure to tape the interrogation is clear. Because there was no evidence to corroborate Ms. Milke's confession, her conviction, and ultimately her life, rested entirely on the Court's ability to ferret out the truth among these competing accounts of what transpired in the interrogation process. Due process and fundamental fairness should not permit a defendant's life to be on the line on the basis of such an unreliable way of determining the truth, especially where, as in this case, recording equipment was readily available to Detective Saldate and he ignored his supervisor's instructions to tape the interrogation.