As criminal attorneys if we’ve heard it once, we’ve heard it a million times, “the defendant spontaneously admitted to the crime and also told me who is responsible for John F. Kennedy’s assassination.” Ok, maybe not to that extent, but I can’t tell you how many times I’ve read police reports, be it a DUI allegation or a Federal Wire Fraud report, where there is language that my client made admissions. Obviously many people get scared when they’re arrested and sing like canaries, but what about those that may be a little more “experienced” with the system and would never utter a peep to a police officer? What about those instances where a person “spontaneously” told the officer during a traffic stop that they have 14 tons of cocaine stashed in their garage 40 miles away? How can we as attorneys, or a jury really know what happened or what was said between the officer and the defendant without hearing a recording of the conversation?
I recently tried a Federal drug case where a DEA agent recorded in his written report that my client made certain statements that could be viewed as admissions and he later testified as to the same. Despite working for a Federal law enforcement agency with more than enough resources to buy recording equipment, this conversation was not recorded. As an attorney, without the luxury of any audio or video recordings to review, all you can do is try to chip away at the Agent or Officer for not making an effort to record despite the means to do so and attempt to the point across that one who is investigating a case certainly has an interest in the outcome and therefor has some bias. Unfortunately, often a showing of bias from the standpoint of a law enforcement officer and the fact that he didn’t record the conversation isn’t enough to combat Big Badge’s testimony. This happens every day in Courtrooms all across the country and the only way to combat it is to attempt to cross examine the witness and hope that they are taking their oath seriously. Sometimes they do, sometimes they don’t. I’m not alleging that this agent wasn’t truthful in his testimony, however had the conversation been recorded my job would have been that much more difficult as it’s a hell of a lot harder to impeach a recorded conversation than a conversation that’s retold by a witness.
So, why in this day and age of Big Brother, iPhones, and instant news haven’t we demanded that the police record their interactions with us? No doubt this would not only benefit at times the defendant, but also when those admissions are flowing like wine it seems to me like it would benefit a prosecutor or officer looking to get a conviction. At the end of the day it’s the only way to get completely objective evidence for a defense attorney to evaluate or for a jury to consider when rendering a verdict. Same goes for a prosecutor. When the admission has to be regurgitated by a testifying witness it’s naturally subject to his or her subjective opinion of what was said and the jury is stripped of their right to make a judgment based on the best evidence possible. I don’t buy the argument that money is an issue. Nearly every officer I’ve come across in the last 3 years has a smart phone. Nearly every smart phone I’ve come across in the last 3 years has a recording function and a camera. We can record field sobriety tests and bug phones but we can’t push a button on a phone to record a convo? Seems odd. I also don’t buy the nonsense that during consensual encounters it’s not practical. I can’t imagine anyone feeling that their conversation with an officer being recorded would be invasive. If anything, wouldn’t the fact that you’re being recorded cause pause to not say anything incriminating and in essence protect you? What about officer safety? Nope. They can push a button to record a DUI investigation. What’s different when it’s not a DUI? If it’s a sit down meeting are they risking more by pushing “record” than not? Ultimately it just seems to me that justice would be better served across the board if police interrogations were required to be recorded. At the end of the day opinions will differ and an opinion is everyone’s right.
Jason Mayberry is a Federal criminal attorney in the Tampa area. If you’ve been charged with a crime contact our office at 813-444-7435 or at 727-771-3847.