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No tap dancing allowed

By Robert C. Phillips

Robert C. Phillips

If you haven’t already, seeing the musical movie production “Chicago” should be high on your list of things to do. Particularly note the telling symbolism as Richard Gere, playing the part of an unscrupulous, yet eminently successful criminal attorney, literally and figuratively tap dances his way through closing arguments in defense of a pouty-faced, scheming murderess, appropriately played by Rene Zellweger. In what should have been a sure conviction, the jury is dazzled by Gere’s footwork. Zellweger is acquitted.

But if you think the fictional “Chicago” reflects poorly on America’s criminal justice system, then you should also note the more recent real-life commutation of the death sentences of some 167 condemned murderers in Illinois by the outgoing governor, George Ryan. This wholesale emptying of Illinois’ death row occurred closely on the heels of the governor’s earlier outright pardoning of four other death row defendants who were alleged to have been “tortured” into confessing to crimes they did not commit.

In a speech that conjured up images of Richard Gere’s now infamous tap dance argument in “Chicago,” the governor attempted to justify this controversial use of his executive commutation and pardoning power, arguably throwing the baby out with the bath water, by accusing Illinois’ criminal justice system of being “haunted by the demon of error; error in determining guilt, and error in determining who among the guilty deserves to die.”

But the saga does not end there. In a recent Illinois legislative move, touted by some to provide the rest of the nation with a blueprint for reform, Illinois’ new governor, Rod Blagojevich, signed a bill mandating the taping of all interviews, from the Miranda (Miranda v. Arizona (1996) 384 U.S. 436) warning to completion, in any homicide interrogation conducted at a police station, at least when it is feasible to do so.

A law enforcement interrogator’s failure to comply with the dictates of this statute raises a presumption of inadmissibility, putting the burden on the prosecution to justify an exception to the rule.

While Illinois is the first state to successfully enact actual legislation, the idea that there is a need for some outside body to be meddling in law enforcement’s interrogation practices is not new. As far back as 1985, the Alaska Supreme Court, in Stephan v. Alaska ((1985) 711 P.2nd 1156), determined that the failure to record an interrogation potentially violates Alaska’s state (as opposed to federal) constitutional “due process” protections.

Less than a decade later, the Minnesota Supreme Court, in State v. Scales ((1994 518 N.W. 2nd 587), while declining to follow Alaska’s use of their own state’s due process clause, instead invoked the court’s “supervisory power to insure the fair administration of justice” and held that failing to electronically record an interrogation might, depending upon the circumstances, subject the resulting statements to suppression.

California’s courts have yet to go so far. To the contrary, citing federal case authority (see Arizona v. Youngblood (1988) 488 U.S. 51, and California v. Trombetta (1984) 467 U.S. 479), the California Supreme Court in People v. Holt ((1997) 15 Cal.4th 619, 664), and even more recently in People v. Gurule ((2002) 28 Cal.4th 557, 603), has determined that absent a bad faith destruction of evidence, federal due process does not require the taped preservation of a criminal suspect’s statements to the police.

And because any suppression remedies, per the “Truth in Evidence” provisions of California’s Proposition 8, would have to be based upon federal, as opposed to state, constitutional principles, Holt eliminates the possibility of a judicially created mandatory taping requirement as is now the rule in Alaska and Minnesota. If such a requirement is ever to come to California, it will have to be in the form of a United States Supreme Court mandate, or a state statute similar to that as enacted in Illinois.

However, while law enforcement is likely to argue that neither the judiciary nor the legislature needs to be interfering in local police interrogation practices, a voluntary audio and/or video-taping police policy has to be recognized as generally a good thing. Aside from the simple fact that a tape-recording of a criminal suspect’s interrogation provides the most accurate and complete record of what was said and done, establishing local audio and videotaping requirements for themselves in their interrogations is probably the most effective way for the police to convince the courts and politicians that they don’t need to be writing the rules for them.

Also, when you balance the number of actual police abuses in the interrogation room with the number of false accusations of police abuse, you can’t help but see how audio or video recording an interview is most often to the police officer’s benefit.

Consider with this the immeasurable importance of giving the eventual jury the opportunity to hear, if not see, the defendant before he has thought to temper his attitude, clean up his language, wipe the drool off his chin, and otherwise soften his commonly offensive physical appearance, and you begin to appreciate the tremendous value of a taped interview. When this occurs, not even Richard Gere will be able to tap dance his way around the truth that an audio or videotape recording so obviously displays.

Robert C. Phillips is a deputy district attorney in San Diego

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