The topic of electronically recording interviews and interrogations comes up frequently during our seminars. Clearly, there is a national trend in which through state court decisions or legislative efforts police officers are required to electronically record their interrogations and confessions. Recognizing the benefits to the investigator, many departments and agencies have decided, on their own volition, to electronically record interrogations and confessions.

It has always been our recommendation that if an investigator chooses to electronically record an interview or interrogation session that everything be electronically recorded. This includes the initial introduction of the investigator to the suspect, the administration and waiver of Miranda or Article 31 advisements, the entire interview, interrogation and confession. On the other hand, if only the suspect's confession is electronically recorded the defense may attack the interrogation. The argument is as follows: Obviously the investigator had access to recording equipment but chose not to record the interrogation because he did not want the jury to see or hear the threats and promises made to the defendant.

Despite this potential danger, there remain many investigators who only electronically record confessions. Furthermore, many prosecutors prefer a summary account of the suspect's confession, even when the entire interview and interrogation that led up to the confession was recorded. Quite simply, it is easier for juries to absorb a concise confession lasting several minutes than an interview and interrogation that lasting several hours. If obtained properly, the electronically recorded confession has tremendous persuasive impact at trial. Conversely, if the recorded confession is not done properly it affords a defense attorney with tremendous ammunition to attack the validity of the confession.

This web tip offers guidelines for obtaining an electronically recorded confession either as a stand-alone document or as a summary account within an electronically recorded interview and interrogation. For illustrative purposes, a burglary investigation will be used.

Introducing the recorded confession to the suspect

In situations where the investigator has not been electronically recording the interrogation the following approach has been used successfully to get a suspect to agree to have a confession electronically recorded:

"Jim, at this point I need to document what you've told me because I need to make sure that I understand everything correctly and that no one later says that you said something that you did not say. So this is for your protection as well as mine. Now we have a couple of choices. You could write out what you've told me or I could just ask you about what happened on tape. What are you most comfortable with?"

Almost all suspects will agree to the easier procedure, which is to have the conversation electronically recorded. This places the investigator in a desirable position when testifying. If the defense attorney asks why only the confession was recorded and not the entire interrogation, the investigator can respond by saying that it is not the department's policy to electronically record the interrogation but that in this particular case the defendant preferred that his confession be electronically recorded.

If the investigator has already been electronically recording the entire interview and interrogation session, he may introduce the summary account as follows:

"Jim, I really respect you for getting this clarified this afternoon. As you know, I have to submit a report which will reflect the findings of our investigation as well as the explanation that you have just given me about why you did this. My boss is going to review everything and he likes to have a real quick summary of things to review. So what I'm going to do is to work with you to summarize everything that has happened this afternoon."

Start by documenting the date, time, location and people present

The electronically recorded confession should start with a brief statement explaining who is present as well as the current date and time. To instill the sense of accuracy, times should be given to the nearest minute. It is appropriate to identify the positions or titles of people present such as investigator, attorney, human resource specialists, union representative, etc. The suspect's name should be given but he or she should not be referred to as a suspect (the people hearing the confession will know his role in the conversation). The following is an example of such an introduction:

"My name is Brian Jayne, an investigator with John E. Reid and Associates. With me is Mike Masokas who is also an investigator as well as James Smith. The date is Friday, February 9th, 2007 and the current time is 3:07 PM. We are inside an interview room located at 209 W. Jackson Boulevard, in Chicago Illinois."

Document Miranda (Article 31) advisements and waiver

For a suspect to give a knowing and voluntary waiver of his constitutional right advisements the investigator must document that the suspect was truthfully told about the issue under investigation and that the warnings were administered properly. While not legally necessary, a written waiver that was read out loud and which the suspect subsequently signed is probably the best documentation for this purpose. Furthermore, for the waiver to be valid the suspect must be an adult and in adequate physical and mental health. For example:

"At 1:00 PM this afternoon I met with Mr. Smith at our office on 209 W. Jackson Blvd. At that time I told him that I wanted to talk to him about some thefts from a home on Madison St. in Chicago and advised Mr. Smith of his Miranda rights orally and in writing. At 1:11 PM Mr. Smith waived those rights and agreed to answer my questions without having an attorney present.

(I) 'Is that correct, Jim?'

(S) 'Yes.'

(I) 'Jim, what is your date of birth?'

(S) 'June 21, 1982'

(I) 'So you are presently 24 years old?'

(S) 'That's right.'

(I) 'Do you have any mental health problems?'

(S) 'Not that I know of.'

(I) 'Are you under a psychologist or psychiatrist's care?'

(S) 'No'

(I) 'How would you describe your physical health today?'

(S) 'I feel good. I'm in good health.'

Introduce the confession and develop details of the crime

An investigator should not expect a suspect to spontaneously generate a perfectly court-admissible confession. Rather, the investigator should introduce this area with a summary of the suspect's confession and then request details of the crime:

"During our conversation, Mr. Smith told me that he broke into the home located at 419 Madison street in Chicago and that he stole money, a lap top computer, and some jewelry from the home. I would like to review the details of that statement.

(I) 'Jim, how did you get into the home?'

(S) 'They left the back patio door unlocked. I just opened it and went in.'

(I) 'About what time was that?'

(S) 'Around 9:15 or 9:20 that morning.'

(I) 'Which morning was that?'

(S) 'It was last Thursday morning. Two days ago.'

(I) 'How much money did you steal from the home?'

(S) 'Only about 75 dollars.'

(I) 'Where did you steal that money from?'

(S) 'It was in a desk drawer in the kitchen.

(I) 'What else did you steal from that house?"

(S) "I stole a Toshiba lap top computer that was on the kitchen counter.'

[This dialogue would continue to cover all aspects of the crime to include development of dependent and independent corroboration]

The following guidelines relate to questions asked about the suspect's crime:

Do not ask questions you do not already know the answer to: Prior to any attempt to summarize a confession or obtain an electronically recorded confession, the suspect should have already fully confessed to the investigator. Clearly the investigator wants to avoid having to re-confront a suspect whose memory is all of a sudden foggy. Similarly, the investigator does not want to be surprised by learning new information about the suspect's crime, e.g.:

(I) "Now you were alone when you entered the home?"

(S) "No, actually I was with two friends. They were the ones who actually took the stuff. I just waited outside for them.

Do not include information about past crimes: One of the reasons prosecutors like to have a separate summary account of the suspect's confession is that there may be statements or information developed during the interrogation that are inadmissible as evidence. A common example is a remark about the suspect's prior convictions or arrests. Similarly, courts consider information that the suspect refused to take, or failed a polygraph examination as highly prejudicial.

Clarify ambiguous responses: If the suspect's response to the investigator's question is not clear or is possibly misleading, the investigator should ask follow-up questions, e.g.:

(I) 'About what time was that?'

(S) 'Around 9:15 or 9:20 that morning.'

(I) 'Which morning was that?'

(S) 'It was last Thursday morning. Two days ago.'

The investigator should introduce descriptive terminology when asking questions: The suspect's confession needs to acknowledge personal responsibility for committing the crime and satisfy the elements of the crime. Consequently, the statement, "I took a laptop computer from a home on Madison St. in Chicago." does not satisfy the legal elements of theft. The statement should be, "I stole a laptop computer from a home on Madison St. in Chicago." Guilty suspects do not feel comfortable using descriptive language when discussing their crime. Therefore, the investigator should introduce this language when asking the suspect questions, e.g.:

(I) "John about what time was it when you killed Sarah?

(I) "What did you use to intentionally start this fire?"

(I) "What did you have in your hand when you robbed the clerk?"

(I) "Approximately how long did your hand rub her bare vagina?"

It is better to elicit behaviors than opinions: Opinions are subject to interpretation and can introduce irrelevant information within a confession. The following examples illustrate how a question that addresses the suspect's behavior is more likely to lead to relevant information:

Opinion Behavior

"Why did you do this?" vs. "What did you do with the money you stole?"

"Whose idea was it to start the fire?" vs. "Who lit the cigarette lighter used to start the fire"

"Did you get this job so you could vs. "When did you first divert stock funds to

embezzle stock funds?" your personal account?"

Do not ask leading questions

Leading questions are designed to elicit agreement from the suspect and represent one way to elicit a confession, e.g.:

"So you are the person who broke into that home?"

"You stole money, a computer and jewelry from the home, correct?"

"You broke into the home the morning of February 9^th, right?"

However, such leading questions are also easy to attack in court where the defense attorney argues that the investigator spoon-fed the confession to his client who felt compelled to agree with the investigator's assertions. A confession has much more persuasive impact if the suspect spontaneously volunteers detailed information about his crime. Consequently, leading questions like those illustrated above should be avoided.

Use simple terminology:

(I)"So you are the person you illegally entered the domicile located at 914 Madison St.?"

(S) "huh?"

Many suspects who commit crimes do not possess a genius IQ or an extensive education. If an investigator uses unfamiliar words in asking the suspect a question, an affirmative response to that question is meaningless in a court of law. Also, a jury may resent an investigator's unnecessary use of "police-speak."

Conclude the statement by documenting the suspect's treatment

(I) "Jim is everything you told me today the complete truth?"

(S) "Yeah."

(I) "Have you been offered any promises of leniency?"

(S) "What do you mean?"

(I) "Did anyone make any promises about what would happen to you if you admitted breaking into the home?"

(S) "No. Nothing was said about that."

(I) "Were you threatened in any way today?"

(S) "No. You've treated me real good."

(I) "Jim, is there anything else that you would like to include in this recorded document?"

(S) "Just that I'm sorry I did this and I can guarantee that I will never do that again."

(I) "Thank you. That concludes this recording. The current time is 3:22 PM.

In conclusion, even though an entire interrogation has been electronically recorded, it is often beneficial for the investigator to conclude the recording session with a summary account of the suspect's confession. In all likelihood, this summary account will be played for the jury and will represent the strongest single piece of evidence against the defendant. Consequently, the investigator must make certain that the summary account includes all of the elements of the crime and addresses issues frequently attacked by the defense such as the validity of the Miranda waiver, the duration of the interview/interrogation and whether the defendant was offered any promises of leniency or threatened in any way.