During the next Virginia General Assembly session at the beginning of next year, I propose to offer legislation requiring audio-visual (A/V) recordings in custodial interrogations of juveniles suspected of felony crimes. High ranking members of the House Courts of Justice Committee have stated publicly that a problem exists in the process of interrogating juveniles. My legislation could make Virginia a leader in assuring the integrity of juvenile interrogations, while reducing the serious potential for false confessions.
Ten states — Illinois, Michigan, Maine, Wisconsin, Alaska, Minnesota, the District of Columbia, Texas, New Jersey, and just recently, California — are using A/V regularly in interrogations, due to new state laws or court decisions.
National consensus is building to bring the interrogation process into the modern era particularly in relation to juveniles. Yet only 4 percent of Virginia law enforcement agencies use A/V recordings regularly in interrogations, although A/V technology, with the camera focused on the suspect and the detective is readily available at low cost. Most of the other agencies rely on note-pad scribbling and "remembered" exchanges to inform prosecutors about results of the interrogations. Such practices lead to prolonged arguments among the parties involved, as they wrangle over who said what to whom. Using A/V recordings of interrogations are akin to an "instant replay," which Major League Football uses routinely. The camera doesn’t lie.
Of course, the process to determine who has committed a crime is not a game. The issue is about ensuring that justice does not go awry. Fortunately, Virginia has mostly managed to avoid the awful experiences of states like New York, where five teenagers were falsely convicted of savagely beating a woman jogger in Central Park, or the 38 false or questionable murder confessions in Broward County, Fla., thrown out by county courts, or rejected by juries, or the 42 wrongful murder convictions in Illinois — 60 percent of which involved false confessions.
Yet Virginia is not immune from vulnerability to false confessions. The state’s failure to use A/V technology routinely in interrogations is injustice waiting to happen. Juveniles are highly susceptible to the interrogation process, enhancing the likelihood of false confessions, due to the fact that juveniles are not fully-formed adults, and thus often ill-equipped to defend themselves in the interrogation environment. The U.S. Supreme Court’s ruling striking down juvenile executions, echoed by the Virginia General Assembly, reinforces the reality that juveniles still maturing can be incapable of making fully formed, appropriate decisions.
Northwestern University conducted the most comprehensive study of exonerations ever done. It found alarming results. Of 340 U.S. exonerations between 1989 and 2003 the youngest suspects, those aged between 12 and 15, confessed falsely 69 percent of the time. Older juveniles gave false confessions almost half the time.
More than half of those falsely convicted spent more than 10 years in prison for crimes they did not commit, enduring a total of 3,400 years of irreparable incarceration. Between 1982 and 1990, eleven individuals in Virginia were exonerated after their wrongful convictions for serious felonies. Two were based on false confessions. Virginians spent more than $2 million to imprison these innocent individuals. Meanwhile, for each false confession leading to a conviction there is a real criminal still at large.
William J. Stejskal, Ph.D., director of the Psychology Institute of Law, Psychiatric and Public Policy at the University of Virginia stated, "When the only records of custodial interrogations consist of the variable recollections of the participants, or some handwritten notes that were produced under ambiguous or dubious circumstances, unjust and undesirable outcomes can occur."
A confession is the most powerful piece of evidence in the law enforcement arsenal. Yet, experience shows that confessions are not infallible. Juveniles as well as adults without adequate mental capacity or defense are open prey to an ill-equipped interrogation process. Just ask Earl Washington, an innocent Virginia man with an IQ rating in the 60s, convicted by a false confession, and just days away from execution. Unless Virginia and other states recognize the gaps in how law enforcement interrogates juveniles and adults with few inner capacities, others will be subject to the same outrage.
In the last two years, eight states including Virginia, Florida, Arizona, Iowa, Indiana, Maryland, Missouri, and Pennsylvania, had bills submitted in their legislatures requiring A/V use in custodial interrogations.
American justice is based on ensuring that the real criminals are apprehended and punished. My bill would help Virginia move more effectively toward this goal. Using available, economical technology together with appropriate interrogation practices, detectives, prosecutors and judges will recognize and dispense justice more effectively. The financial cost of justice will diminish and the public will have greater faith that justice is being done.