STORY: "Videotapes can be misleading," by reporter Jennifer L. Mnookin, published by the New York Times on July 13, 2016. (Jennifer L. Mnookin is a professor of law at the University of California, Los Angeles.)
SUB-HEADING: Can a jury believe what it sees?
GIST: "Last week the F.B.I., the Drug Enforcement Administration and other federal law enforcement agencies instituted a policy of recording interrogations of criminal suspects held in custody. Only a minority of states and local governments have a similar requirement, but the new rule, which applies to nearly every federal interrogation, will most likely spur more jurisdictions to follow suit. It’s not far-fetched to think that such recordings may soon become standard police practice nationwide. Supporters of the practice present recordings as a solution for a host of problems, from police misconduct to false confessions. But while there are lots of good reasons to require them, they are hardly a panacea; in fact, the very same qualities that make them useful — their seeming vividness and objectivity — also risk making them misleading, and possibly even an inadvertent tool for injustice. Support for electronic recording has been accelerating in recent years, and its backers now come from all sides of the criminal-justice process. Though some in law enforcement remain critical of the idea, firsthand experience with recording tends to turn law enforcers into supporters — it eliminates uncertainty about police conduct and lets investigators focus on the interrogation rather than taking detailed notes. Likewise, criminal prosecutors find that when a defendant confesses or provides incriminating information, the video offers vivid and powerful evidence. At the same time, it aids defendants because the very presence of the camera is likely to reduce the use of coercive or unfair tactics in interrogation, and documents illegitimate behavior if and when it does occur. And a recording provides judges and juries with information about what took place in a more objective form. Given this chorus of support, what’s not to like? The short answer is that, according to recent research, interrogation recording may in fact be too vivid and persuasive. Even seemingly neutral recordings still require interpretation. As advertisers and Hollywood directors know well, camera angles, close-ups, lenses and dozens of other techniques shape our perception of what we see without our being aware of it......... We know that false confessions really do occur, even in very serious crimes, and probably more frequently than most people expect. But why? We know something about certain interrogation techniques, as well as defendant vulnerabilities like youth or mental disability, that may create heightened risks for false confessions. But we don’t yet know enough about the psychology of false confessions to be able to accurately “diagnose” the reliability of a given confession just by watching it. The problem is that many of the red flags that frequently occur in false confessions — like unusually long interrogations, the inclusion of inaccurate details, or the police “feeding” some crime-related information to the suspect — can also occur in the confessions of the guilty. This means there’s no surefire way to tell false confessions and true confessions apart by viewing a recording, except in extreme cases. And yet by making confessions so vivid to juries, recording could paper over such complications, and sometimes even make the problem worse. The emotional impact of a suspect declaring his guilt out loud, on video, is powerful and hard to dislodge, even if the defense attorney points out reasons to doubt its accuracy.........This doesn’t mean that mandating recording of interrogations is a bad idea. Routine recording will serve to make them fairer and less coercive — and this might well help reduce the number of false confessions. But we need to recognize that by itself, video recording cannot stop all the problems with interrogations, prevent false confessions or guarantee that we will spot them when they do occur. We are still a long way from fully understanding why the innocent confess during interrogations, and why we believe them when they do — regardless of what we see on camera."
Jennifer L. Mnookin is a professor of law at the University of California, Los Angeles.http://www.nytimes.com/2014/07/14/opinion/videotaped-confessions-can-be-misleading.html?_r=0
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