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Albany Times Union

Videotape interrogations, confessions

By KATHRYN GRANT MADIGAN

First published: Monday, February 25, 2008

In appointing state Attorney General Andrew Cuomo to investigate the 1988 murders of Seymour and Arlene Tankleff, Gov. Eliot Spitzer has taken an important step forward in the search for justice in this much-publicized case.

And while, for the moment, Martin Tankleff is a free man, far too many questions remain about the initial investigation and prosecution that landed this 17-year-old behind bars for almost 20 years on charges that he murdered his parents.

Paramount among these questions is the dubious, unsigned -- and swiftly recanted -- confession he allegedly made after hours of unrecorded interrogation. Tankleff is not alone in this ordeal. Last May, the state Assembly held a hearing concerning whether the state should pass a law requiring that interrogations by law enforcement personnel be videotaped. Testifying at the hearing were four men who served a combined 63 years in prison for crimes they did not commit.

In each case, no recorded evidence of their "confessions" exists.

Such miscarriages of justice could easily be avoided if New York mandated that all interrogations of criminal defendants be videotaped -- a position long-held by the New York State Bar Association. Alaska, Illinois, New Jersey, Maine, Minnesota and Texas currently require electronic records of custodial interrogations in murder cases.

An innovator in so many criminal justice reforms, it's unfathomable that New York is in the Dark Ages in this arena.

Almost without exception in cases where the defendant makes a statement to law enforcement personnel, the admissibility of the statement is litigated at a pre-trial hearing. The purpose of the hearing is to determine whether or not the statement was properly taken.

For instance, was the suspect advised of his or her rights? Did the suspect request a lawyer? Was the suspect coerced -- physically or otherwise? Did the police wear down the suspect through hours and hours of questioning, resulting in a false confession?

Having an electronic record of a suspect's statement -- particularly in the case of a young or otherwise vulnerable individual -- would give prosecutors and defense attorney a reliable record of how the confession developed and ensure the integrity of the fact-finding process.

Inappropriate treatment of detainees would be documented. Complaints by suspects of physical or psychological abuse at the hands of their interrogators would be easily proved -- or disproved. And most critically, it would reduce the risk of innocent persons being convicted and the guilty going free.

Last year, Assemblyman Joseph Lentol of Brooklyn sponsored a bill that would have required electronic taping of interrogations. The bill, which included language drafted by the State Bar Association's Criminal Justice Section, passed in the Assembly but stalled in the Senate.

With the stakes so high and with the technology so readily available, doesn't it make sense to create a recorded account of what actually takes place in the interrogation room? The right to one's personal freedom is our most basic constitutional right. Shouldn't we be as certain as possible before we take action to deny any individual his or her freedom from forced incarceration?

Because the right to a fair trial should never be compromised, the New York State Bar Association supports the enactment of legislation that would mandate the electronic recording of interrogations and other common sense initiatives that preserve justice. The four innocent men who lost 63 years of their lives and now, Mr. Tankleff who adds 21 more, deserve certainty, as do those who will be accused in the future, and who might meet similar fates.

Kathryn Grant Madigan of Binghamton is the president of the New York State Bar Association.