The People, Respondent,v.Everett M. Durant, Appellant.BriefN.Y.October 20, 2015APL-2014-00121 Monroe County Indictment No. 12008-0949A Court of Appeals of the State of New York THE PEOPLE OF THE STATE OF NEW YORK, Respondent, – against – EVERETT M. DURANT, Defendant-Appellant. BRIEF OF THE INNOCENCE PROJECT AS AMICUS CURIAE IN SUPPORT OF DEFENDANT-APPELLANT Of Counsel: DAVID B. HIRD DANIEL RIEGEL JAMES SADLER VANSHIKA VIJ WEIL, GOTSHAL & MANGES LLP 1300 I Street, N.W., Suite 900 Washington, DC 20005 Tel.: (202) 682-7000 Fax: (202) 857-0940 STEVEN A. REISS MELODY E. AKHAVAN WEIL, GOTSHAL & MANGES LLP 767 Fifth Avenue New York, New York 10153 Tel.: (212) 310-8000 Fax: (212) 310-8007 Attorneys for Amicus Curiae The Innocence Project Date Completed: April 14, 2015 TABLE OF CONTENTS I. Interest of the Amicus Curiae .......................................................................... 1 II. Jurisdictional Statement and Statement of Facts ............................................. 3 III. Preliminary Statement ..................................................................................... 3 IV. Argument ......................................................................................................... 7 Point I. False Confessions Plague The Criminal Justice System And Are A Frequent Cause Of Wrongful Convictions .......................... 7 A. Factors Leading to False Confessions ................................. 10 1. Situational risk factors ............................................... 11 a. Police control of the interrogation environment ..................................................... 11 b. Presentation of false evidence ......................... 13 c. Minimization and maximization ..................... 15 d. Interrogation length ......................................... 17 2. Dispositional risk factors ........................................... 19 a. Age .................................................................. 20 b. Cognitive and intellectual disabilities ............. 20 3. Innocence as a risk factor .......................................... 23 B. Many Wrongful Convictions Based on False Confessions Result from "Contamination" by the Police Feeding Confidential Facts to a Suspect under Interrogation ......................................................................... 24 Point II. Recording Custodial Interrogations Mitigates The Problem Of False Confessions ..................................................................... 30 A. Courts and Scholars Have Recognized that Recording Custodial Interrogations Benefits Suspects, Trial and Appellate Courts, Police, Prosecutors, the State, and the Public ............................................................................. 30 1. Benefits to suspects ................................................... 30 2. Benefits to trial and appellate courts ......................... 32 1 WEIL:\95134130\24\99995.5097 TABLE OF CONTENTS (cont'd) 3. Benefits to police ....................................................... 35 4. Benefits to prosecutors .............................................. 38 5. Benefits to the State ................................................... 39 6. Benefits to the public ................................................. 39 B. Law Enforcement Increasingly Has Used Recording Equipment to Record Custodial Interrogations of Felony Suspects ................................................................... 40 1. Three State Supreme Courts have required that custodial interrogations be recorded in order for a defendant's statement to be admitted into evidence ..................................................................... 42 a. Alaska .............................................................. 43 b. Minnesota ........................................................ 44 c. Wisconsin ........................................................ 45 2. Three State Supreme Courts have adopted procedural or evidentiary rules requiring the recording of interrogations ....................................... .46 a. New Jersey ...................................................... 46 b. Arkansas .......................................................... 47 c. lndiana ............................................................. 47 3. Massachusetts High Court provides for a jury instruction in cases in which interrogations are not recorded ............................................................... 48 4. In Iowa the State Supreme Court issued a decision encouraging recording; thereafter, the Iowa Attorney General mandated that custodial interrogations be recorded ......................................... 51 5. Summary .................................................................... 53 Point III. Where Police Fail To Record A Custodial Interrogation Despite Having The Opportunity To Do So, The Defense Is Entitled To An Adverse Inference Instruction .............................. 53 11 WEIL:\95134130\24\99995.5097 TABLE OF CONTENTS (cont'd) A. Failure to Record Interrogations Is Identical to Other Actions in Which Failure to Preserve Evidence Results in an Adverse Inference Instruction ........................ 54 B. The Absence of a Recorded Interrogation is Akin to the Failure of a Party to Produce a Material Witness in Its Control ............................................................................ 55 C. Failure to Record Interrogations Is Identical to Other Actions in Which Courts and Juries Are Deprived of Necessary Evidence and An Adverse Inference Instruction Is Issued ............................................................. 56 1. Without A Recording, New York Courts Do Not Have the Evidence Necessary to Make CPL 60.45 Determinations of Voluntariness ............ 56 2. Without A Recording, Juries Do Not Have the Evidence Necessary to Evaluate the Reliability of Confessions ........................................................... 58 a. Jurors tend to overvalue confessions .............. 59 b. Jurors tend to believe a person who did not commit a crime would never falsely confess to the crime ......................................... 60 c. An adverse inference instruction would enable the jury to recognize how the loss of evidence impairs the jury's ability to assess the reliability of a confession ............... 62 V. Conclusion ..................................................................................................... 66 111 WEIL:\95134130\24\99995.5097 TABLE OF AUTHORITIES Page(s) Cases Bruno v United States, 308 us 287 [1939] .............................................................................................. 64 Carter v Kentucky, 450 us 288 [1981] .............................................................................................. 64 Clark v State, 374 Ark. 292, 287 S.W.3d 567 [2008] .............................................................. .47 Colorado v Connelly, 479 US 157 [1986, Brennan J., dissenting] ........................................................ 59 Commonwealth v Barbosa, 457 Mass 773, 933 NE2d 93 [2010] ................................................................... 50 Commonwealth v Brown, 82 Mass App Ct 1123, 978 NE2d 591 [2012], review denied 464 Mass. 1103, 982 NE2d 1187 [20 13] .................................... 50 Commonwealth v DiGiambattista, 442 Mass 423, 813 NE2d 516 [2004] .......................................................... passim Commonwealth v Drummond, 76 Mass App Ct 625, 925 NE2d 34 [2010] ........................................................ 50 Culombe v Connecticut, 367 us 568 [1961] ........................................................................................ 56, 57 Nassau County Dep't of Soc. Servs. ex rel. Dante M. v Denise J., 87 NY2d 72 [1995] ....................................................................................... 54, 55 Devito v Feliciano, 22 NY3d 159 [2013] ..................................................................................... 54, 55 Gordon v People, 33 NY 501 [1865] ............................................................................................... 54 lV WEIL:\95134130\24\99995.5097 Hendricks v Swenson, 456 F2d 503 [8th Cir 1972] ................................................................................ 35 In re Jerrell C.J., 283 Wis 2d 145, 699 NW2d 110 [2005] ........................................... 32, 34, 35, 45 In re Jimmy D., 15 NY3d 417 [2010] ............................................................................................. 9 Miranda v Arizona, 384 US 436 [1966] ....................................................................................... passim People v Bedessie, 19 NY3d 147 [2012] ................................................................................... 4, 9, 21 People v De Vito, 21 AD3d 696 [3d Dept 2005] ............................................................................. 51 People vErts, 73 NY2d 872 [1988] ..................................................................................... 54, 55 People v Gonzalez, 68 NY2d 424 [1986] ........................................................................................... 54 People v Jackson, 168 Mise 2d 182 [NY Sup Ct 1995] ................................................................... 63 People v Leyra, 302 NY 353 [1951] ............................................................................................. 51 People v Mateo, 2 NY3d 383 [2004] ............................................................................................. 33 People v Oliveras, 21 NY3d 339 [2013] ........................................................................................... 33 People v Sanchez, 61 NY2d 1022 [1984] ......................................................................................... 64 People v Thomas, 22 NY3d 629 [2014] .................................................................................... passim v WEIL:\95134130\24\99995.5097 People v Whalen, 59 NY2d 273 [1983] ........................................................................................... 65 Starr v United States, 153 us 614 [1894] .............................................................................................. 64 State v Barnett, 789 A2d 629 [NH 2001] ..................................................................................... 52 State v Jones, 203 Ariz 1, 49 P3d 273 [2002] ..................................................................... 31, 36 State v Scales, 518 NW2d 587 [Minn 1994] ....................................................................... passim Stephan v State, 711 P2d 1156 [Alaska 1985] ...................................................................... . passim Stoker v State, 692 NE2d 1386 [lnd Ct App 1998] .................................................................... 35 United States v Bland, No. 1:02-CR-93 [ND lnd Dec. 12, 2002] ........................................................... 34 Statutes and Rules 13 V.S.A., chapter 182 ............................................................................................. 41 Administrative Order No. 18, 2012 Ark 294 .......................................................... .47 Amendments to Ark R Crim P 8.2 ........................................................................... 4 7 Ark R CrimP 4.7 ..................................................................................................... 47 Cal Penal Code§ 859.5 ............................................................................................ 41 Cal Welfare & lnsts Code § 626.8 .......................................................................... .41 Conn Gen Stat § 54-1 ............................................................................................... 41 CPL 60.45 ................................................................................................ 3, 33, 56, 57 DC Code Ann§ 5-116.01 ........................................................................................ 41 Vl WEIL:\95134130\24\99995.5097 725 Ill Comp Stat Ann 5/103-2.1 ............................................................................ .41 Ind R Evid 617 ................................................................................................... 41, 47 Me Rev Stat Ann tit 25, § 2803-B .......................................................................... .41 Md Ann Code, Crim Proc § 2-401. .......................................................................... 41 Mich Comp Laws§ 763.7-11 .................................................................................. 41 Mo Rev Stat ch 590. 700 ........................................................................................... 41 Mont Code Ann § 46-4-406-46-4-411 .................................................................... .41 NC Gen Stat§ 15A-211 ........................................................................................... 41 Neb Rev Stat§ 29-4501-4508 .................................................................................. 41 NJ Ct Rule 3:17 ........................................................................................................ 46 NM Stat§ 29-1-16 ................................................................................................... 41 Ohio Rev Code Ann§ 2933.81 ............................................................................... .41 Or Rev Stat§ 133.400 .............................................................................................. 41 Wis Stat Ann§§ 968.073, 972.115 .................................................................... 41, 45 Other Authorities Custodial Interrogation Recording Compendium By State: Iowa, The Innocence Project [July 1, 2014], http://www.nacdl.org/usmap/crim///d/#IA [accessed Jan. 20, 2015] ..................................................................................... 51 The National Registry of Exonerations, http://www .law. umich.edu/special/exoneration/Pages/detaillist.aspx ?View= {FA F6EDDB-5A68-4F8F-8A52- 2C61F5BF9EA 7} &FilterField1=DNA&FilterV alue 1 =8_ Y &FilterField2=ST & FilterValue2=NY &FilterField3=FC&FilterV alue3=8_ Y [accessed Jan. 20, 2015] ..................................................................................... 62 Stephanie Clifford, Conviction to be Cleared in 1991 Brooklyn Murder Case, NY Times, Jan. 5, 2013, http://www .nytimes.com/20 15/0 l/06/nyregion/conviction- to-be-cleared-in-1991-brooklyn-murder-case.html ............................................ 15 Vll WEIL:\95134130\24\99995.5097 Steven A. Drizin & Richard A. Leo, The Problem of False Confessions in the Post DNA World, NC L Rev 891, 915 [2004] .......................................... 16 New York State Bar Association's Task Force On Wrongful Convictions, Final Report at 6 [2009] https :1/www .nysba.org/W orkArea/DownloadAsset.aspx ?id=26663 [accessed Jan. 20, 2015] ....................................................................................... 9 Supreme Court of Indiana, New Supreme Court Evidence Rule Favors Recording of Police Interrogations [Sept. 15, 2009], http://www.in.gov/ilea/files/ press_release_police_interrogations.pdf ........................................... 36, 38, 39, 48 Innocence Project, False Confessions & Recording Of Custodial Interrogations, http://www .innocenceproject.org/Content/False_ Confessions_Recording_ Of_ Custodial_Interrogations.php [accessed Jan. 20, 2015] ....................................... 9 Innocence Project, http://www .innocenceproject.org/Content/Douglas_ W arney. php [accessed January 20, 2015] ............................................................................... 26 Innocence Project, http://www .innocenceproject.org/Content/Frank_Sterling. php [accessed Jan. 20, 2015] ............................................................................... 17, 18 Innocence Project, http://www .innocenceproject.org/Content/Freddie _Peacock. php [accessed Jan. 20, 2015] ..................................................................................... 22 Innocence Project, http://www .innocenceproject.org/Content/J eff_Deskovic. php [accessed Jan. 20, 2015] ..................................................................................... 24 Innocence Project, http://www .innocenceproject.org/Content/J ohn_Kogut. php [accessed Jan. 20, 2015] ............................................................................... 13, 14 Jeremy W. Peters, Wrongful Conviction Prompts Detroit Police to Videotape Certain Interrogations, NY Times, Apr. 11, 2006, available at http://www.nytimes.com/2006/04/11/us/11detroit.html ?_r=O ........................... 37 Brandon L. Garrett, Judging Innocence, 108 Colum L Rev 55, 88 n 124 [2008] ................................................................. 9 Vlll WEIL:\95134130\24\99995.5097 Brandon L. Garrett, The Substance of False Confessions, 62 Stan L Rev 1051, 1066 [2010] ................................................................ passim Alan M. Gershel, A Review of the Law in Jurisdictions Requiring Electronic Recording of Custodial Interrogations, XVI Rich J L & Tech 9, 2 [2010] ....................................................................... 38 Linda A. Henkel, Jurors' Reactions to Recanted Cconfessions: Do the Defendant's Personal and Dispositional Characteristics Play a Role?, Psych, Crime & L 14, 565-578 [2008] .................................................................................................... 61 Sari Horwitz, Holder tells federal law enforcement agencies to record statements by suspects in custody, Wash. Post, May 22, 2014, available at http://www. washingtonpost.com/world/national-security /federal-law- enforcement-agencies-directed-to-record-statements-by-suspects-in- custody/2014/05/22/2b5b70fe-e1ca-11e3-810f-764fe508b82d_story.html [accessed Jan. 20, 2015] ..................................................................................... 41 SpencerS. Hsu, Police chiefs lead effort to prevent wrongful convictions by altering investigative practices, Wash. Post, Dec. 2, 2013, available at http://www.washingtonpost.com/local/crime/police-chiefs-urge-changes-to- photo-lineups-other-tools-to-prevent-wrongful-convictions/20 13/12/02/ 5d8e9af2-5b69-11e3-bf7e-f567ee61ae21_story.html [accessed Jan. 20, 2015] ..................................................................................... 41 Cynthia A. Jones, A Reason to Doubt: The Suppression of Evidence and the Inference of Innocence, 100 J Crim L & Criminology 415,421 [2010] ............ 63 Saul M. Kassin & Karlyn McNall, Police Interrogations: Communicating Promises and Threats By Pragmatic Inclusion, 15 L & Hum Behav 233, 234-35 [1991] ....................................................... 16, 17 Saul M. Kassin & Katherine Neumann, On the Power of Confession Evidence: An Experimental Test of the Fundamental Difference Hypothesis, 21 L & Hum Behav 5 [1997] .............................................................................. 59 Saul M. Kassin & Lawrence S. Wrightsman, Prior Confessions and Mock Juror Verdicts, 10 J Applied Soc Psych 133 [1980] .................................................... 61 Saul M. Kassin et al., Interviewing Suspects: Practice, Science, and Future Direction, 15 L & Criminological Psych 39,44 [2010] ..................................... 19 lX WEIL:\95134130\24\99995.5097 Saul M. Kassin et al., Police-Induced Confessions: Risk Factors and Recommendations, 34 L & Hum Behav 3 [20 1 0] ....................................... passim Richard A. Leo, The Decision to Confess Falsely: Rational Choice and Irrational Action, 7 4 Denv U L Rev 979, 985 [1997] ......................................................... 12 Richard A. Leo, The Impact of Miranda Revisited, 86 J Crim L & Criminology 621, 683 [1996] ..................................................... 36 Richard A. Leo & Richard J. Ofshe, The Consequences of False Confessions: Deprivations of Liberty and Miscarriages of Justice in the Age of Psychological Interrogation, 88 J Crim Law & Criminology 2 [1998] .................................... 61 C. T. McCormick, Handbook of the Law of Evidence, 316 [2d ed 1972] .............. 59 Tom Miller, Cautions Regarding Custodial Issues, 39 Iowa Police J 1, 15 [2007] ............................................................................. 51 Robert J. Norris et al., "Than That One Innocent Suffer": Evaluating State Safeguards Against Wrongful Convictions, 74 Alb L Rev 1301, 1330 [2011] ........................................................................ 12 Allison D. Redlich et al., Perceptions of Children During a Police Interview: A Comparison of Suspects and Alleged Victims, 38 J Applied Soc Psych 705 [2008] .................................................................... 61 John E. Reid & Assoc., Inc., The Importance of Accurate Corroboration within a Confession, available at http://www.reid.com/EDUCATIONAL_INFO/r_tips.html?serial=11020088204 55822 [accessed January 20, 2015] .................................................................... 25 Frances Robles, A Conflict Is Seen in a Review of a Detective's Conduct, available at http://www.nytimes.com/2013/05/16/nyregion/a-conflict-is-seen-in-a-review- of-a-detectives-conduct.html .............................................................................. 15 Thomas P. Sullivan, Police Experiences with Recording Custodial Interrogations, Northwestern Univ. School of Law Center on Wrongful Convictions Special Report, at 6 [Summer 2004] .................................................. ...................... passim Thomas P. Sullivan, A Compendium of Law Relating to the Electronic Recording of Custodial Interrogations, 95 Judicature 5 [Mar./ Apr. 2012] .................. passim X WEIL:\95134130\24\99995.5097 Thomas P. Sullivan, Andrew W. Vail, & Howard W. Anderson III, The Case for Recording Police Interrogations, available at http://www.wahltek.com/pdf/WahlTek-iRecord-Litigation-Magazine-2008- 05.pdf [accessed Jan. 20, 2015] .......................................................................... 30 Thomas P. Sullivan, Compendium Shows More Jurisdictions Recording Custodial Interrogations, Nat'l Ass'n of Criminal Defense Lawyers [Apr. 2014] ........... .40 Supreme Court of New Jersey Administrative Determination re: Report of the Special Committee on the Recordation of Custodial Interrogations, Appendix B [Oct. 15, 2005], available at https://www .judiciary .state.nj. us/notices/reports/recordation. pdf ...................... 4 7 Matthew D. Thurlow, Lights, Camera, Action: Video Cameras As Tools of Justice, 23 J Marshall J Computer & Info L 771 [2005] ................................................. 30 XI WEIL:\95134130\24\99995.5097 I. Interest of the Amicus Curiae The Innocence Project is a non-profit organization dedicated primarily to providing pro bono legal and related investigative services to indigent prisoners whose actual innocence may be established through post-conviction DNA evidence. The Innocence Project's focus is on exonerating long-incarcerated individuals through use of DNA evidence, including newly developed DNA testing methods. It also seeks to prevent future wrongful convictions by researching their causes and pursuing legislative and administrative reform initiatives designed to enhance the truth-seeking functions of the criminal justice system-including identifying those who actually committed crimes for which others were wrongfully convicted. Because wrongful convictions destroy lives and allow the actual perpetrators to remain free, the Innocence Project's objectives both serve as an important check on the awesome power of the state over criminal defendants and help ensure a safer and more just society. As perhaps the nation's leading authority on wrongful convictions, the Innocence Project and its founders, Barry Scheck and Peter Neufeld (both of whom are members of New York State's Commission on Forensic Science, charged with regulating state and local crime laboratories), are regularly consulted by officials at the federal, state, and local levels. WEIL:\95134130\24\99995.5097 In the Innocence Project's expenence, false confessions have played a significant role in the wrongful convictions of defendants who are later exonerated through DNA testing. Therefore, it has become increasingly important to implement safeguards into the criminal justice system to prevent convictions based on false confessions. The best safeguard is to require video recording of interrogations so that courts and juries may better understand the circumstances surrounding a confession and may use that information to evaluate the reliability of the confession. In New York, prosecutors and law enforcement personnel agree on the benefits of recording interrogations, and the Municipal Police Training Council's model policy states that whenever possible and practicable, an electronic recording of custodial interrogations should be made when the subject to be interviewed is reasonably suspected in the commission of a crime. However, the decision of whether or not to record a custodial interrogation ultimately falls within law enforcement's discretion as this practice is neither required by New York law nor is it universally followed throughout the state. Where the police choose not to record a custodial interrogation and the prosecution seeks to introduce a defendant's statement obtained during the unrecorded interrogation, an instruction should be given to the jurors that they may infer that the confession is unreliable. This instruction will encourage police to record interrogations so the court and juries may better assess the reliability of a confession, which will ultimately 2 WEIL:\95134130\24\99995.5097 decrease the number of convictions based on false confessions. The Innocence Project expects that such an instruction will rarely need to be given because all those involved in the criminal justice system will come to recognize the benefits of recording interrogations. II. Jurisdictional Statement and Statement of Facts The Innocence Project adopts and incorporates by reference the Jurisdictional Statement and Statement of Facts in the appellant's brief. III. Preliminary Statement Recording interrogations provides an essential tool for assessmg the voluntariness and reliability of confessions and other statements made by defendants in police custody. A recorded interrogation is imperative both to a court in deciding whether a defendant's statement is admissible under CPL 60.45, and to a jury in deciding what weight to give that evidence at trial. But when the police fail to record a custodial interrogation, they are not only depriving the court and jury of highly useful information for decision-making, but also creating a selective impression of critical evidence. Without a recording of the entire interrogation, the court and jury only hear the statement which presumably helps the prosecution's case and are denied information about the context in which the statement was drawn from the accused. 3 WEIL:\95134130\24\99995.5097 Thus, in cases like Mr. Durant's where the police fail to record a custodial interrogation, a trial court should instruct the jury that it may draw an adverse inference from that failure. This situation is functionally identical to other situations in which this Court has required adverse jury instructions, such as (i) where a party fails to produce evidence that would elucidate a transaction in issue or support a claim it has made when that party has it peculiarly within its power to produce such evidence; and (ii) where a party fails to produce a material witness to the events at issue. An adverse inference jury instruction is critical precisely because of the overwhelming evidentiary impact of a confession made during interrogation. A statement or confession made by a defendant to the police is perhaps the most compelling piece of evidence that can be offered against that defendant in a criminal case. But not all confessions are true, and empirical data has shown that false confessions are much more common than most people believe. False confessions were a significant cause of wrongful convictions in about 30% of the DNA exonerations nationwide and about 23% of the DNA exonerations in New York State. As this Court has observed, "[f]alse confessions that precipitate a wrongful conviction manifestly harm the defendant, the crime victim, society and the criminal justice system" (People v Bedessie, 19 NY3d 147, 161 [2012]). 4 WEIL:\95134130\24\99995.5097 Several factors can contribute to the risk that a particular confession is false. The police-controlled environment in which interrogations take place is a significant factor inducing false confessions. Other factors relate to the techniques used by police to obtain confessions, such as providing false information to the defendant or minimizing the consequences of the crime. Additional factors relate to the propensity for a particular defendant to be misled, such as age, intelligence, and educational level of the defendant. If an interrogation is recorded, then the information about these factors can be presented to a jury evaluating the reliability of any confession. But where the police decide not to record an interrogation, and the jurors are left to weigh only a transcript of the confession, these factors are unseen and unheard. Accordingly, many authorities have recognized the value of recording interrogations, not simply to defendants, but to police, juries, courts, and the criminal justice system itself. Twenty-one States and the District of Columbia have taken action requiring or encouraging the recording of interrogations through legislative or court action. Where courts have taken steps to encourage or require the recording of interrogations, they have adopted different approaches to addressing the problem. Alaska's courts have found a due process right under the State constitution. Courts in New Jersey, Arkansas, and Indiana have adopted procedural rules requiring that an interrogation be recorded in order for a 5 WEIL:\95134130\24\99995.5097 defendant's statement to be introduced. Courts in Minnesota and Wisconsin have exercised their general supervisory authority to require the recording of interrogations. In Iowa, the Supreme Court held that the recording of interrogations should be encouraged, and the State Attorney General announced that thereafter all interrogations would be recorded. For this case, the most significant precedent is the decision by the Supreme Judicial Court of Massachusetts to require that, where a confession is introduced but the interrogation leading up to the confession is unrecorded, the defense is entitled to a jury instruction explaining that the jury may draw an adverse inference. This case provides a clear example where such a jury instruction is most appropriate. Here, the Rochester Police Department controlled the timing, location, and methods of the defendant's interrogation. Although the Rochester Police Department often records interrogations in other cases, it chose not to record its interrogation of this defendant. Nonetheless, at trial, the prosecution introduced the statement signed by the defendant after that unrecorded interrogation. These decisions by the prosecution and the police deprived the jury of the information necessary for it to properly evaluate whether the defendant's statement is reliable. In such a situation, it is wholly appropriate that the jurors receive an instruction, advising them that they may make an adverse inference that, had the interrogation 6 WEIL:\95134130\24\99995.5097 been recorded, the circumstances surrounding the interrogation would have shown that the defendant's statement was unreliable. Requiring such an adverse jury instruction is consistent with this Court's own jurisprudence recognizing the dangers presented by the risk of false confessions. Such an instruction would serve two important functions. First, the instruction would provide the jury with an important reminder that the reliability of a defendant's statement depends very much on the circumstances under which it is given, and that without a recording, the jury does not have the information necessary to determine a statement's reliability. Second, because prosecutors and police departments would prefer not to have such an instruction read to a jury, they will have a significant incentive to record all interrogations. Point I. IV. Argument False Confessions Plague The Criminal Justice System And Are A Frequent Cause Of Wrongful Convictions. An adverse inference jury instruction is necessary where the police fail to record an interrogation. Because custodial interrogations occur in environments and circumstances totally under police control, there is a substantial risk that interrogations may lead to false confessions. A recording of the interrogation would be the best evidence available for a jury to assess the circumstances present during the interrogation and thereby determine the voluntariness and reliability of a confession. Where police fail to record interrogations, however, they deprive the 7 WEIL:\95134130\24\99995.5097 jury of the ability to assess the subtleties surrounding an interrogation and the jury is therefore left to evaluate an accused's statement without being fully informed of the situation that yielded the confession. This Court's recent decision in People v Thomas (22 NY3d 629 [2014]) demonstrates just how important a piece of evidence the recording of an interrogation can be. In that case, this Court unanimously decided to vacate a murder conviction based on the defendant's confession because the video recording of the entire interrogation demonstrated that the confession was involuntary as a matter of law (id. at 646). From its review of the recorded interrogation, this Court determined that "[t]he various misrepresentations and false assurances used to elicit and shape defendant's admissions manifestly raised a substantial risk of false incrimination" (id.). If there had been no recording of the interrogation in the Thomas case, it would have been much more difficult for the Court to reach the conclusion that it did. Empirical studies have shown that false confessions are a leading cause of wrongful convictions both nationally and in New York. Nationwide, approximately 30% of wrongful convictions overturned by DNA evidence involve some form of a false confession.1 In New York, the data is highly comparable. In According to the Innocence Project, there have been over 300 wrongful convictions overturned by DNA evidence. In approximately 30% of the wrongful convictions overturned with DNA evidence, defendants made false confessions, 8 WEIL:\95134130\24\99995.5097 2009, the New York State Bar Association's Task Force on Wrongful Convictions found that 23% of the accused in 53 recent wrongful convictions had falsely confessed. 2 The consequences of false confessions are alarming. As this Court has concluded, "[f]alse confessions that precipitate a wrongful conviction manifestly harm the defendant, the crime victim, society and the criminal justice system" (Bedessie, 19 NY3d at 161 [ruling that "[i]n a proper case expert testimony on the phenomenon of false confessions should be admitted"]). In another recent case, this Court stated, "[s]o long as juveniles cannot be altogether preserved from rigors of police interrogation it would behoove us not to minimize the now well- documented potential for false confessions when suggestible and often impulsive admissions or statements to law enforcement officials or pled guilty (The Innocence Project, False Confessions & Recording Of Custodial Interrogations, http://www .innocenceproject.org/ContentJFalse_ Confessions_Recording_ Of_ Cus todial_Interrogations.php [accessed Jan. 20, 2015]). In another study of the first 200 cases involving convicted individuals exonerated by DNA evidence, 16% of cases had false confessions and another 6.5% involved allegedly self-incriminating statements that were short of a full confession (Brandon L. Garrett, Judging Innocence, 108 Colum L Rev 55, 88 n 124 [2008]). 2 In its report, the Task Force identified false confessions as one of the six leading causes of wrongful convictions in New York (New York State Bar Association's Task Force On Wrongful Convictions, Final Report at 6 [2009], available at https:/ /www .nysba.org/W orkArea/DownloadAsset.aspx ?id=26663 [accessed Jan. 20, 2015]). 9 WEIL:\95134130\24\99995.5097 and impaired children are ushered into the police interview room" (In re Jimmy D., 15 NY3d417, 431 [2010]). The risk that false confessions would lead to wrongful convictions only increases in cases in which the interrogation is unrecorded. Without a recording, courts and juries do not have the information needed to determine whether a confession is voluntary or reliable. Therefore, in those circumstances in which the police have failed to record a custodial interrogation, it becomes even more essential to tell the jury that the police have deprived it of the information needed to evaluate the reliability of the confession, and that the jury may draw an adverse inference for the failure to record. As discussed in more detail below in Point III, the failure to record an interrogation has the same type of impact as the prosecution's failure to call a critical witness or to produce evidence about the events at issue that is in the prosecution's control. A. Factors Leading to False Confessions. To fully comprehend the magnitude of the false confessions problem recognized by this Court, it is first necessary to understand the factors that may lead to false confessions. Researchers have identified three categories of factors that influence confessions: (i) situational factors-those pertaining to the context and custodial nature of the interrogation itself; (ii) dispositional factors-those pertaining to the suspect that render him or her particularly vulnerable to coercive 10 WEIL:\95134130\24\99995.5097 interrogation tactics and therefore susceptible to falsely confessing; and (iii) innocence factors (see Saul M. Kassin et al., Police-Induced Confessions: Risk Factors and Recommendations, 34 L & Hum Behav 3 [2010]). Within these three broader categories, specific factors consistently appear in cases involving proven false confessions. The presence of each of the following factors is subtle and particularly difficult for jurors to appreciate based solely on a transcript or verbal account of a confession. A recording of the confession, on the other hand, can help capture these nuances and allow courts and juries to better assess whether a statement was coerced or otherwise elicited improperly. 1. Situational risk factors. a. Police control of the interrogation environment Perhaps the most critical situational risk factor is the intimidating effect that comes from the police's absolute control of the circumstances and environment of the interrogation. These interrogations occur at police stations or other locations controlled by the police, in rooms from which the putative defendant has no right to leave, but from which the police may come and go during the interrogation. Research has shown that a police-controlled interrogation environment is a factor leading to false confessions (see e.g. Kassin et al., Police-Induced Confessions at 6). To ensure privacy and control, police are trained to remove suspects from 11 WEIL:\95134130\24\99995.5097 familiar surroundings and question them in police stations (id.). Interrogations in this police-dominated atmosphere are "stress-inducing by design" and can lead to "compliant false confessions," in which the defendant acquiesces to the demand for a confession to escape the stressful environment (id. at 14). The interrogation is "structured to promote a sense of isolation and increase the anxiety and despair" arising from continued assertions of innocence (id. at 6). Social scientists have also found that "[a]n interrogator strives to neutralize the person's resistance [to confessing] by convincing him that he is caught and that the marginal benefits of confessing outweigh the marginal costs" (Richard J. Of she & Richard A. Leo, The Decision to Confess Falsely: Rational Choice and Irrational Action, 74 Denv U L Rev 979, 985 [1997]). To accomplish this tactic, interrogators "manipulate the individual's analysis of his immediate situation" so that suspects are "confined in an unfamiliar setting, isolated from any social support, and perceive themselves to be under the physical control of the investigator" (id. at 985, 997). These strategies are explained in police manuals, the most prominent of which is Inbau & Reid, Criminal Interrogations and Confessions, published in 1962, revised over the years, and still in print (see Kassin et al., Police-Induced Confessions at 6 [describing the Reid Technique first published in Criminal Interrogation and Confessions as "the most influential approach" to criminal interrogation]). The Reid Technique has been widely 12 WEI L:\95134130\24\99995.5097 adopted by police departments (see Robert J. Norris et al., "Than That One Innocent Suffer": Evaluating State Safeguards Against Wrongful Convictions, 74 Alb L Rev 1301, 1330 [2011]; see also infra IV.Point I.B.). b. Presentation of false evidence Another factor consistently present in false confession cases is the police tactic of presenting the suspect with false evidence during the interrogation. Police may resort to this deception and outright lying-a tactic the suspect may not know police are legally permitted to do-by confronting the suspect with false fingerprints, nonexistent eyewitnesses, fake polygraph results, or fabricated recordings in an effort to make the suspect feel so hopeless that he or she decides that confession is in his or her best interest (id. at 915). Outright lies can put innocent people at risk to confess by leading them to feel trapped by the inevitability of conviction based on the fabricated evidence against them (Kassin et al., Police-Induced Confessions at 28). In some cases, this technique can even persuade the suspect that the evidence is so overwhelming that he or she must have committed the crime but simply does not remember doing so (id. at 17). John Kogut's case illustrates the impact that this interrogation tactic can have on an innocent suspect. In an investigation of a 1984 rape and murder of a 16-year-old girl, the Nassau County Police Department turned its attention to John Kogut, Dennis Halstead, and John Restivo as potential perpetrators (The Innocence 13 WEIL:\95134130\24\99995.5097 Project, http://www .innocenceproject.org/Content/John_Kogut.php [accessed Jan. 20, 2015]). Mr. Kogut was brought to police headquarters for a polygraph examination (id.). After three polygraphs, a detective analyzed Mr. Kogut's "polygraph charts" and determined that Mr. Kogut was lying when he denied any involvement in the crime (id.). Multiple officers interrogated Mr. Kogut for more than eighteen hours, repeatedly telling him that he had failed the lie detector tests despite Mr. Kogut's insistence that he was innocent (id.). Eventually, Mr. Kogut signed a confession that an officer wrote out, which allegedly contained the sixth version of facts that Mr. Kogut conveyed (id.). In June 2003, the convictions of Dennis Halstead, John Restivo, and John Kogut were vacated, and the three defendants were released after a series of post-conviction DNA tests excluded all three men as the rapists and proved that semen from the victim's body had come from an unknown assailant (id.). Similarly, the video recording of the interrogation in the Thomas case exposed how the police used "various misrepresentations and false assurances" to elicit an involuntary confession from Mr. Thomas that he had slammed his infant child against a mattress (Thomas, 22 NY3d at 636-637, 645-646). These misrepresentations included deceptions about whether the child was alive, the need for information to treat the child, threats to arrest his wife, and false assurances that his child's injury was regarded as an accident (id. at 645-646). 14 WEIL:\95134130\24\99995.5097 Another example of how police conduct may result in false or involuntary confessions can be found in the Brooklyn District Attorney's Office's recent investigation into confessions obtained by former Brooklyn homicide detective Louis Scarcella. In at least five murder cases, suspects questioned by Mr. Scarcella began their confessions with either "you got it right" or "I was there" (see Frances Robles, A Conflict Is Seen m a Review of a Detective's Conduct, NY Times, May 5, 2013, available at http://www .nytimes.com/20 13/05/ 16/nyregion/a-conflict-is-seen-in-a-review-of-a- detectives-conduct.html). The Brooklyn District Attorney's office is in the process of reviewing approximately 70 trial convictions involving confessions obtained by Mr. Scarcella. On January 5, 2015, the Brooklyn district attorney's office moved to clear the conviction of Derrick Hamilton, who was wrongfully convicted in 1991 for a murder to which he allegedly confessed during an interrogation with Mr. Scarcella (see Stephanie Clifford, Conviction to be Cleared in 1991 Brooklyn Murder Case, NY Times, Jan. 5, 2013, available at http://www.nytimes.com/2015/01/06/nyregion/conviction-to-be-cleared-in-1991- brooklyn-murder-case.html). c. Minimization and Maximization While certain interrogation tactics are geared towards increasing the suspect's sense of hopelessness, interrogators are also trained to provide the 15 WEIL:\95134130\24\99995.5097 suspect with moral justifications and excuses so that confession seems like an expedient means of escape (Kassin et al., Police-Induced Confessions at 18). Minimization, a tactic that downplays the seriousness of a crime, is designed to lull suspects into confessing to that crime. The interrogator may minimize a crime by making suggestions that the suspect's actions were spontaneous, accidental, provoked, peer-pressured, drug-induced, or otherwise justifiable by external factors. Because the seriousness of the crime is played down, the suspect may believe charges will be reduced or otherwise infer leniency in his treatment if he cooperates (Steven A. Drizin & Richard A. Leo, The Problem of False Confessions in the Post DNA World, NC L Rev 891, 915 [2004]). In this way, "minimization provides police with a loophole in the rules of evidence by serving as the implicit but functional equivalent to a promise of leniency (which itself renders a confession inadmissible)" (Kassin et al., Police-Induced Confessions at 19). Because people are highly influenced by perceived reinforcements, suspects infer leniency in treatment from minimizing remarks and "[t]he net result is to put innocents at risk to make false confessions" (id.). Alternatively, interrogators may employ the tactic of maximization-a similarly effective technique whereby police exaggerate the strength of the evidence and magnitude of the charges against the suspect-to elicit a confession from a suspect (see Saul M. Kassin & Karlyn McNall, Police Interrogations: 16 WEIL:\95134130\24\99995.5097 Communicating Promises and Threats By Pragmatic Inclusion, 15 L & Hum Behav 233, 234-35 [1991]). Maximization leads suspects "by implication" to infer more severe sentencing and suspects confess in order to demonstrate a willingness to cooperate and thereby help their cause (id. at 236). d. Interrogation length Studies have demonstrated that false confessions often come after prolonged interrogations (see e.g. Brandon L. Garrett, Convicting th~_ Innocent: Where Criminal Prosecutions Go Wrong 38 [2011]). In Garrett's analysis of the first 250 exonerations based on DNA evidence, interrogations lasted longer than three hours in ninety percent of the false confession cases (id. ). In another study of 125 proven false confessions, researchers found that more than eighty percent of the interrogations in which the length of time was recorded lasted for more than six hours (Drizin & Leo at 946). Lengthy interrogations have led to false confessions in the City of Rochester, in particular. In 1992, Frank Sterling was convicted of murder in the second degree almost exclusively based on a false confession he gave to police more than two and a half years after the crime had been committed (The Innocence Project, http://www .innocenceproject.org/Content/Frank_Sterling. php [accessed Jan. 20, 2015]). When the crime was originally investigated, Mr. Sterling voluntarily submitted to multiple interviews with the police, consistently denied 17 WEIL:\95134130\24\99995.5097 any involvement in the crime, and provided an airtight alibi (id.). Two and a half years later, a new investigative team approached Mr. Sterling after he returned from a thirty-six-hour trucking job (id.). Mr. Sterling agreed to an interview, which began in the afternoon and continued overnight into the following morning (id.). After more than eight hours of interrogation in which the police used several suggestive techniques, such as presenting Mr. Sterling with pictures of the crime scene, suggesting particular details of the crime, and hypnosis, Mr. Sterling finally "tightened up, began to shake, and blurted out 'I did it, I need help'" (id.). Despite numerous inconsistencies between Mr. Sterling's confession and the evidence, and despite his immediate recantation of the confession, Mr. Sterling was charged with and convicted of murder (id.). He ultimately served more than seventeen years in prison before DNA testing obtained by the Innocence Project led to his exoneration in 2010 (id.). Only a video recording could have adequately captured the gradual physical and psychological demise of a suspect like Mr. Sterling over the course of a prolonged interrogation and allowed the fact finders to better assess the reliability of the statement that such conditions yielded. Perhaps the frequency with which these confessions have come after lengthy interrogations is not surprising given the design of modem interrogation tactics. Modem police interrogation is often a two-step process of psychological manipulation (Ofshe & Leo at 985-986). The interrogator's first step is to reject 18 WEIL:\95134130\24\99995.5097 any denials, explanations, or alibis the suspect may offer in order to convince the suspect that he has been caught, that he is powerless to change his situation, and that arrest is inevitable (id. at 1004-1050). Once the interrogator has made the suspect feel hopeless, the second step is to offer him inducements that are designed to persuade the suspect into confessing (id. at 1050-1106). As psychologist Saul Kassin observed, "prolonged isolation constitutes a form of deprivation that can heighten a suspect's distress and incentive to remove himself or herself from the situation" (Saul M. Kassin et al., Interviewing Suspects: Practice, Science, and Future Direction, 15 L & Criminological Psych 39, 44 [2010]). However, most interrogation training manuals do not identify or include safeguards to prevent innocent suspects from falsely confessing under this coercive pressure, but rather proceed from the unfounded assumption that innocent people do not confess falsely (Drizin & Leo at 917). 2. Dispositional risk factors. Dispositional risk factors are those which render the particular individual vulnerable to coercive interrogation techniques and susceptible to confessing (see id. ). Studies of dispositional risk factors common amongst false confessors show that these individuals tend to be young and possess some form of mental impairment (id.). "Notwithstanding the role of psychological coercion as the primary cause of interrogation-induced false confession, some individuals- 19 WEIL:\95134130\24\99995.5097 particularly the mentally retarded and juveniles-are more vulnerable to the pressures of interrogation and therefore less likely to possess or be able to muster the psychological resources or perspective necessary to withstand accusatorial police questioning" (Drizin & Leo at 919). a. Age Children and adolescents are cognitively and psychosocially less mature than adults, and this immaturity manifests itself in impulsive decision-making, decreased ability to consider long-term consequences, engagement in risky behaviors, and increased susceptibility to negative influences (Kassin et al., Police- Induced Confessions at 19). Ultimately, this increases the potential for juveniles to falsely confess as they are less likely than adults to comprehend legal terms, to help in their own defense, and to understand and appreciate the substance of their Miranda rights (id.). In Drizin and Leo's study, the vast majority of the false confessors were young adults in their twenties or thirties with more than half under the age of 25 and 35% younger than 18 (Drizin & Leo at 945). Similarly, in Garrett's study of the first 250 DNA exonerees, 13 of the 40 individuals who falsely confessed were juveniles (Garrett, Convicting the Innocent at 21). b. Cognitive and intellectual disabilities For many of the same reasons that juveniles are vulnerable to coercive interrogation tactics and therefore at risk to give a false confession, persons with 20 WEIL:\95134130\24\99995.5097 cognitive and intellectual disabilities are similarly at risk (see Bedessie, 19 NY3d at 159 [noting that "individuals who are highly compliant or intellectually impaired or suffer from a diagnosable psychiatric disorder, or who are for some other reason psychologically or mentally fragile" are "more likely to be coerced into giving a false confession"], citing Chojnacki, Cicchini & White, An Empirical Basis for the Admission of Expert Testimony on False Confessions, 40 Ariz St LJ 1, 15-17 [2008]). Individuals with mental disabilities tend to be highly submissive, suggestible, and compliant as they are eager to please authority figures (Drizin & Leo at 920). Further, studies of Miranda comprehension have consistently shown that persons with mental retardation have significant deficits in their understanding and appreciation of Miranda warnings (Kassin et al., Police-Induced Confessions at 21). Studies of false confession cases have shown that a disproportionate number of confessors are either developmentally disabled or have a mental illness. In Garrett's study, 14 of the 40 false confessors were developmentally disabled and 3 were mentally ill (Garrett, Convicting the Innocent at 21), and in Drizin and Leo's study, 22% of the false confessors were developmentally disabled and 10% had a diagnosed mental illness (Drizin & Leo at 917). False confessions have led to wrongful convictions of persons with cognitive and intellectual disabilities in the City of Rochester. In 1976, Freddie Peacock, 21 WEIL:\95134130\24\99995.5097 who suffered from severe mental illness and had been hospitalized for it several times, was convicted of first-degree rape and sentenced to up to 20 years imprisonment on the basis of a confession, which was later determined to be false and coerced (The Innocence Project, http://www.innocenceproject.org/Content/ Freddie_Peacock.php [accessed Jan. 20, 2015]). On a July night in 1976, a Rochester woman was attacked and raped when she returned home after work (id.). The victim initially struggled to convey details of the crime to the superintendent and police officers, but then told them that she believed a neighbor had been the perpetrator (id.). The superintendent asked if she meant "Freddie," and she said yes (id.). Within hours, Peacock was arrested at his apartment, where he was asleep, and then interrogated for two and a half hours (id.). He initially denied any involvement in the crime and told the detective handling the interrogation about his mental illness and his frequent hospitalizations (id.). In his alleged confession, Peacock could not tell officers where, when or how the victim was raped (id. ). An officer wrote out the details of the alleged confession, but Peacock was never asked to sign it. Peacock was convicted by a jury and served five years in New York prisons (id.). DNA testing obtained by the Innocence Project led to his exoneration in 2010-nearly three decades after his release on parole (id.). 22 WEIL:\95134130\24\99995.5097 3. Innocence as a risk factor The influence that innocence itself has on the interrogation process may also increase the risk of a false confession. Innocent people tend to feel reassured that their innocence will set them free (Kassin et al., Police-Induced Confessions at 23). As a result, these people often waive their right to silence and their right to have lawyer present during any questioning (id.). The feeling of reassurance that accompanies innocence may stem from the "illusion of transparency," which is a tendency for people to overestimate the extent to which their true thoughts, emotions, and other inner states can be seen by others (id. ). As a result, they cooperate fully and speak freely with police, often failing to realize that they are suspects, not witnesses. As Kassin observed, "it is clear that Miranda warnings may not adequately protect the citizens who need it most-those accused of crimes they did not commit" (id.). The case of Jeffrey Deskovic is a particularly illustrative example of not only innocence as a risk factor but also of situational and dispositional risk factors at work. In November 1989, Peekskill, New York police found the body of a fifteen-year-old girl in a wooded area of a local park (see Garrett, Convicting the Innocent at 14). The police focused their investigation on Mr. Deskovic, a sixteen- year-old classmate of the girl, because he had been absent from school at the time of her death, and because he seemed overly distraught-he attended all three 23 WEIL:\95134130\24\99995.5097 wakes for the girl and had been observed crying (see The Innocence Project, http://www .innocenceproject.org/Content/J eff_Deskovic. php [accessed Jan. 20, 2015]). Mr. Deskovic spoke with police eight times between December 1989 and January 1990 and agreed to submit to a polygraph test (id.). His alleged confession, which was never recorded, occurred after six hours, three polygraph sessions that he was told he failed, and extensive questioning by detectives in between sessions (id.). Despite the fact that DNA evidence was known to actually exonerate Mr. Deskovic before his trial even started, he was convicted of murder and rape based almost entirely on his unrecorded false confession (id.). He served nearly 16 years before semen from the victim's rape kit was tested with newer technology and matched to a convicted felon who ultimately confessed (id. ). Following his release, Mr. Deskovic stated, "Believing in the criminal justice system and being fearful for myself, I told them what they wanted to hear" (Garrett, Convicting the Innocent at 18). B. Many Wrongful Convictions Based on False Confessions Result from "Contamination" by the Police Feeding Confidential Facts to a Suspect under Interrogation. Police are aware of the phenomenon of false confessions and know that the best way to assess the reliability of a suspect's general acknowledgement of guilt is to have the suspect provide a detailed narrative in which he provides facts about the crime that only the perpetrator would know. Therefore, to assess the reliability 24 WEIL:\95134130\24\99995.5097 of confessions, police follow protocols called the "Reid Technique" that are outlined in the leading manual on police interrogations (see Brandon L. Garrett, The Substance of False Confessions, 62 Stan L Rev 1051, 1066 [2010]). The Reid Technique requires police to hold back certain details about the crime scene from the press and public, so that when a suspect volunteers them they will be powerful evidence that the confession is true and reliable. This process is called "dependent corroboration" (see John E. Reid & Assoc., Inc., The Importance of Accurate Corroboration within a Confession, http://www .reid.com!EDUCATIONAL_INFO/r_tips.html ?serial= 11020088204558 22) [accessed Jan. 20, 2015]). For the same reason, police are trained to avoid feeding the details of the commission of the crime to the suspect during the interrogation in order to prevent contaminating the confession. The most convincing evidence that a confession is reliable is "independent corroboration"- evidence that the police did not know about prior to the confession (see id. ). While the Reid Technique may lead to reliable confessions, it can also be abused to result in false confessions. Many false confessions have the ring of truth because the defendants have been fed non-public details of the crime by the police. Police "contamination," either deliberate or accidental, is highly detrimental since the level of accurate detail in contaminated confessions has led many juries to find false confessions believable. Contamination occurs when suspects are told 25 WEIL:\95134130\24\99995.5097 confidential information during the course of an interrogation resulting in a speciously persuasive confession. While contamination should not occur, because it destroys a key indication of reliability, it happened in nine out of ten false confession cases in New York studied by Professor Brandon Garrett. And of the 38 cases Professor Garrett studied nationwide, 36 false confessions were the product of police contamination (Garrett, The Substance of False Confessions at 1066). The case of Douglas W arney, who had a history of delusions, an eighth- grade education, and advanced AIDS, provides an example of a convincing, detailed confession that was contaminated by information supplied by the police. Mr. W arney initially told the detective that he had stabbed the victim once (The Innocence Project, http://www .innocenceproject.org/Content/Douglas_ W arney .php [accessed January 20, 2015]). The detective, aware that there were multiple stab wounds, subsequently asked Mr. Warney, "how many times did you stab him?" (id.). Mr. Warney's confession also contained the detail that the victim had been cooking chicken. In the closing argument, the prosecutor told the jury, "[t]he [d]efendant says he's cooking dinner, and he's particular about it, cooking chicken . . . . Now, who could possibly know [those] things if you hadn't been inside [that] house, inside that kitchen?" (id.). Judge Smith asked the same question in his concurring opinion in the decision overturning Mr. Warney's conviction: 26 WEIL:\95134130\24\99995.5097 "How indeed could he have known all these facts? It is hard to imagine an answer other than that he learned them from the police. In short, the details set forth in Warney's 41-page statement of his claim, with 58 pages of annexed exhibits, point strongly to the conclusion that the police took advantage of Wamey's mental frailties to manipulate him into giving a confession that contained seemingly powerful evidence corroborating its truthfulness-when in fact, the police knew, the corroboration was worthless." (Wamey, 16 NY3d at 438). After he was exonerated by DNA evidence, Mr. W arney stated that he was told by the interrogator many details, including what was cooking in the hot pot (see id. at 438-439 (Smith, J. concurring)). Judge Smith concluded that "a confession cannot fairly be called 'uncoerced' that results from the sort of calculated manipulation that appears to be present here-even if the police did not actually beat or torture the confessor, or threaten to do so" (id.). In Thomas, too, the police employed a series of "highly coercive deceptions" and fed the accused "various misrepresentations and false assurances" to elicit a confession from Mr. Thomas that he had slammed his infant child against a mattress (Thomas, 22 NY3d at 636-637, 645-646). The Thomas Court, which had access to a video recording of the interrogation, noted that the police told the accused "67 times that what had been done to his son was an accident, 14 times that he would not be arrested, and 8 times that he would be going home" (id. ). With the benefit of the recording, which memorialized such crucial details, the Court ultimately found that "[i]t [was] plain that defendant was cajoled into his inculpatory demonstration by these assurances-that they were essential to 27 WEIL:\95134130\24\99995.5097 neutralizing his often expressed fear that what he was being asked to acknowledge and demonstrate was conduct bespeaking a wrongful intent" (id.). In this fashion, a recording of an interrogation allowed the arbiters to assess critically the circumstances that led to the accused's statement and served as objective evidence that led this Court to expose a situation in which the police improperly contaminated an interrogation. C. Application of Factors to this Case. Several of the risk factors consistently associated in false confession cases were present in Mr. Durant's case. However, because the interrogation was not recorded and Mr. Durant invoked his right not to testify at his trial, the actual substance of the interrogation is only known to the extent of the interrogator's testimony and the one-page, written statement signed by Mr. Durant. At the time of the interrogation, Mr. Durant was only 22 years old and had never graduated high school (tr at 225). According to Investigator Powell, the officer who conducted the interrogation, Mr. Durant was handcuffed and confined in a five foot by nine foot room when the interrogation began shortly after midnight on the night of the incident (id. at 224). Mr. Durant had been in the room alone for "probably 15 minutes or so" (id.). The interrogator introduced himself, asked Mr. Durant if needed to use the bathroom or wanted anything to eat or drink, and gave Mr. Durant a cigarette (id.). After "5 to 10 minutes" of discussing Mr. 28 WEIL:\95134130\24\99995.5097 Durant's children, Investigator Powell read Mr. Durant his Miranda rights, which Mr. Durant waived (id. at 226). Investigator Powell asked Mr. Durant if he knew what he was there for and Mr. Durant responded that he was walking with his sister when he saw a fight and "became involved to try to break up the fight and punched the alleged victim" (id. at 229). After Investigator Powell called Mr. Durant's sister without her answering, Investigator Powell then "told [Mr. Durant] that it is time to tell the truth and to man up (id. at 230). Mr. Durant then said the alleged victim was walking northbound on North Clinton and he was being crowded by this guy Little C and his brothers. So he went over there and punched the alleged victim and kicked him several times" (id. at 231). After "about 15 or 20 minutes" of interrogation, Investigator Powell wrote out Mr. Durant's statement, which Mr. Durant signed (id. at 234). The entire interrogation lasted "about 40 minutes" (id. at 231). Thus, Mr. Durant's age and background made him susceptible to giving a false confession and the circumstances of the interrogation made it all the more likely that a false confession could be elicited. Rather than arguing over a cold record whether these situational and dispositional risk factors led to a false confession, a recording would have enabled the jury to evaluate first hand their true impact on the interrogation process and whether a false confession actually occurred. Without that critical piece of 29 WEIL:\95134130\24\99995.5097 evidence, the jury should be alerted to the perils of a false confession and evaluate the cold record through the lens of an adverse inference instruction. Point II. Recording Custodial Interrogations Mitigates The Problem Of False Confessions. A. Courts and Scholars Have Recognized that Recording Custodial Interrogations Benefits Suspects, Trial and Appellate Courts, Police, Prosecutors, the State, and the Public. 1. Benefits to suspects. Recording custodial interrogations lessens the likelihood that an individual will be convicted based on a false confession. "For innocent suspects, video recordings may explain what precipitated a false confession" (Matthew D. Thurlow, Lights, Camera, Action: Video Cameras As Tools of Justice, 23 J Marshall J Computer & Info L 771, 807 [2005]). "In cases in which the suspect is young, mentally ill, intoxicated, or retarded a videotaped record allows judges and jurors the opportunity to see for themselves how the interrogator may have influenced the suspect" (id.). "[l]f detectives have conducted themselves in a manner that goes outside the law, and impinge on the rights or overcome the willpower of suspects, the judge and jury will have a first-hand look, and the advantage shifts to the defense" (Thomas P. Sullivan, Andrew W. Vail, & Howard W. Anderson III, The Case for Recording Police Interrogations, 34 Litigation 3, 5 [Spring 2008], available at http://www.wahltek.com/pdf/WahlTek-iRecord- Litigation-Magazine-2008-05.pdf [last accessed Jan. 20, 2015]). Moreover, if 30 WEIL:\95134130\24\99995.5097 police disclose facts during a recorded interrogation, either intentionally or unintentionally, then any contamination of the confession is documented (Garrett, The Substance of False Confessions at 1113). "[A]n accurate record makes it possible for a defendant to challenge misleading or false testimony" (State v Scales, 518 NW2d 587, 591 [Minn 1994]). With a recording, a defendant can demonstrate that a police officer is "testifying incompletely or inaccurately about their own and the suspects' statements and actions during the interrogation" (Thomas P. Sullivan, A Compendium of Law Relating to the Electronic Recording of Custodial Interrogations, 95 Judicature 5, at 213 [Mar./ Apr. 2012]). "Tapes capture the tone of the suspect's voice and her demeanor. While the transcript of a suspect's confession might convey the appearance of guilt, a videotape of the same confession may reveal that the suspect was slumping into a chair or barely coherent from sleep deprivation. Even the emphasis a suspect places on different syllables in a phrase may convey a materially significant difference." (Thurlow at 807.) Moreover, recording custodial interrogations protects suspects' constitutional rights by "protect[ing] against the admission of involuntary or invalid confessions" (State v Jones, 203 Ariz 1, 7, 49 P3d 273, 279 [2002] supplemented, 205 Ariz 445, 72 P3d 1264 [2003]). As the Alaska Supreme Court found, 31 WEIL:\95134130\24\99995.5097 "In the absence of an accurate record, the accused may suffer an infringement upon his right to remain silent and to have counsel present during the interrogation. Also, his right to a fair trial may be violated, if an illegally obtained, and possibly false, confession is subsequently admitted. An electronic recording, thus, protects the defendanfs constitutional rights, by providing an objective means for him to corroborate his testimony concerning the circumstances of the confession.,, (Stephan v State, 711 P2d 1156, 1161 [Alaska 1985].) Similarly, the Minnesota Supreme Court found that recording "provides a more accurate record of a defendanf s interrogation and thus will reduce the number of disputes over the validity of Miranda warnings and the voluntariness of purported waivers,, (Scales, 518 NW2d at 591, citing Stephan, 711 P2d at 1160-62); see also Sullivan, A Compendium of Law at 213 [stating that with recordings "innocent or mistreated suspects are able to demonstrate if detectives failed to give Miranda warnings,,]). 2. Benefits to trial and appellate courts. Recording custodial interrogations will reduce the number of disputes over the voluntariness of the confession and whether the suspect received Miranda warnings before questioning (see In re Jerrell C.J., 283 Wis 2d 145, 170, 699 NW2d 110, 122 [2005] [noting that "courts spend an inordinate amount of time and resources wrestling with such slippery matters,, especially when the suspect is a juvenile]). "It will also enable judges to conduct nuanced reviews to resolve admissibility issues, (In re Jerrell C.J., 283 Wis 2d at 169, 699 NW2d at 122). 32 WEIL:\95134130\24\99995.5097 In New York, under CPL 60.45, a defendant's statement "may not be received in evidence against him in a criminal proceeding if such statement was involuntarily made." This statute requires courts to act as gatekeepers to assess the voluntariness of confessions before they are presented to the jury at trial. "To determine voluntariness, courts review all of the surrounding circumstances to see whether a defendant's will has been overborne" (People v Mateo, 2 NY3d 383,413 [2004], citing People v Anderson, 42 NY2d 35, 41 [1977]).3 Recordings "enable meaningful reliability review" (Garrett, The Substance of False Confessions at 1113). By viewing a recorded interrogation, courts would be able to assess the defendant's physical, mental, and emotional state, as well as the demeanor and tactics of the police officers conducting the interrogation (see Thurlow at 807). As seen from this Court's recent decision in the Thomas case, a recording of the interrogation can be an indispensable tool for determining whether a confession is voluntary (22 NY3d at 637, 645-646). Recordings mitigate the problem of confession contamination by allowing the judge to '"analyze whether the suspect could have gained knowledge of key details from facts released to the public by the media"' (Garrett, The Substance of 3 In People v Oliveras (21 NY3d 339, 337-338 [2013]), this Court overturned a conviction base on the ineffective assistance of counsel because counsel failed to investigate facts about the defendant's mental infirmities that might have supported an argument that the defendant's confession was involuntary. 33 WEIL:\95134130\24\99995.5097 False Confessions at 1113, quoting Richard A. Leo et al., Bringing Reliability Back In: False Confessions and Legal Safeguards in the Twenty-First Century, 2006 Wis L Rev 479, 523). Courts have recognized that the lack of recordings results in the expenditure of significant judicial resources, at both the trial and appellate levels, in an attempt to reconstruct what transpired during hours of interrogation and to perform an analysis of the constitutional ramifications of that incomplete reconstruction (see Commonwealth v DiGiambattista, 442 Mass 423, 440, 813 NE2d 516, 529 [2004]). As a federal judge stated, "I don't know why I have to sit here and sort through the credibility of what was said in these interviews when there's a perfect device available to resolve that and eliminate any discussion about it" (tr of mot to suppress hearing at 72-73 in United States v Bland, No. 1:02- CR-93 [ND Ind Dec. 12, 2002]). Finally, "a recording will help trial and appellate courts to ascertain the truth" (Stephan, 711 P2d at 1161 [internal footnote omitted]). A recording requirement provides courts with a "more accurate and reliable record" of interrogations, which "eliminate[s] conflicts in evidence that are attributable to flaws in human memory" (In re Jerrell C.J., 283 Wis 2d at 169, 699 NW2d at 122; see also Stephan, 711 P2d at 1161 [noting that human memory is often faulty because people forget specific facts or reconstruct and interpret past events differently]). Acknowledging that the defendant's confession is one of the most 34 WEIL:\95134130\24\99995.5097 significant pieces of evidence in a criminal trial, the Supreme Judicial Court of Massachusetts stated that when the fact finder is presented only with officers' testimony as to what happened in the interrogation, the fact finder has a "woefully incomplete and inherently unreliable" version of what is clearly recognized as crucial evidence in the case (DiGiambattista, 442 Mass at 446, 813 NE2d at 532). As the Eighth Circuit Court of Appeals stated, "We must recognize that the capacity of persons to observe, remember and relate varies as does their ability and desire to relate truly. For jurors to see as well as hear the events surrounding an alleged confession or incriminating statement is a forward step in the search for the truth. And after all, the end for which we strive in all trials is that the truth may be ascertained and the proceedings justly determined." (Hendricks v Swenson, 456 F2d 503, 507 [8th Cir 1972]). 3. Benefits to police. "[R]ecording will protect the individual interest of police officers wrongfully accused of improper tactics" (In re Jerrell C.J., 283 Wis 2d at 170, 699 NW2d at 122; see also Stoker v State, 692 NE2d 1386, 1390 [lnd Ct App 1998] [stating that a recording can "serve to protect police officers against false allegations that a confession was not obtained voluntarily"]). "A recording, in many cases, will aid law enforcement efforts, by confirming the content and the voluntariness of a confession, when a defendant changes his testimony or claims falsely that his constitutional rights were violated" (Stephan, 711 P2d at 1161; see also Press 35 WEIL:\95134130\24\99995.5097 Release, Supreme Court of Indiana, New Supreme Court Evidence Rule Favors Recording of Police Interrogations [Sept. 15, 2009], http://www.in.gov/ilea/files/ press_release_police_interrogations.pdf [stating that an electronic recording can "confirm police gave suspects all required warnings,,]; Garrett, Convicting the Innocent at 43 [stating that "police have embraced recording interrogations so they can show a judge that the confession was reliable and voluntary,]). Specifically, "[r]ecordings prevent disputes about officers, conduct, the treatment of suspects and statements they made, (Thomas P. Sullivan, Police Experiences with Recording Custodial Interrogations, Northwestern Univ. School of Law Center on Wrongful Convictions Special Report, at 6 [Summer 2004]; see also Jones, 203 Ariz at 7, 49 P3d at 279 [stating that recording the entire interrogation process "enables law enforcement agencies to establish that their tactics were proper,]). "By video recording interrogations, police create an objective, reviewable record of custodial questioning that protects them against false accusations-accusations such as "softening up,, a suspect prior to Miranda, failing to correctly read the Miranda warnings, or eliciting a confession through improper inducements,, (Richard A. Leo, The Impact of Miranda Revisited, 86 J Crim L & Criminology 621, 683 [ 1996]; see also Garrett, Convicting the Innocent at 248 [stating that a "videotape can simplify disputes over whether facts were fed or a confession coerced,]). As Detroit Police Chief Ella Bully-Cummings commented, "from a 36 WEIL:\95134130\24\99995.5097 chief's point of view, I think the greatest benefit [of recording] is to police because what it does is provide documentation that they didn't coerce" (see Jeremy W. Peters, Wrongful Conviction Prompts Detroit Police to Videotape Certain Interrogations, NY Times, Apr. 11, 2006, available at http://www .nytimes.com/2006/04111/us/11 detroit.html? _r=O). 4 Furthermore, "[ o ]fficers and detectives who know they will be videotaped are more likely to prepare their strategies beforehand and to be more self-conscious about their conduct during questioning. Videotaped interrogations can also be used in training courses to educate police about which methods are most effective, as well as those methods which are ethically and legally impermissible" (Leo at 683; see also Sullivan, Police Experiences at 16 [noting that many police departments "use recordings in teaching interrogation techniques to their detectives"]). Recordings "are also an aide in self-evaluation of interrogation methods" (Sullivan, A Compendium of Law at 213). As a representative from the Coeur d'Alene, Idaho Police Department stated, "'[t]here is no better training technique than to watch and review your interrogations"' (see Sullivan, Police Experiences at 17). 4 For police officers who do engage in improper tactics, "videotaping offers police management a tool with which to rein in officers and detectives who may be exercising their discretion inappropriately" (Leo at 683). 37 WEIL:\95134130\24\99995.5097 "Videotaping interrogations is also likely to improve the quality of police work and thus contribute to more professional and more effective interrogation practices" (Leo at 683). "Recordings permit detectives to focus on the suspect rather than taking copious notes of the interview. When officers later review the recordings they often observe inconsistencies and evasive conduct which they overlooked while the interview was in progress." (Sullivan, Police Experiences at 10.) Upon watching a recorded interrogation, officers can "observe the suspect's responses and attitudes" and may "notice missed clues" (Sullivan, A Compendium of Law at 213). Detectives are "better able to develop rapport with suspects by maintaining eye contact, making it more likely that they will receive responsive information" (Sullivan et al. at 4). 4. Benefits to prosecutors. Recording custodial interrogations benefits prosecutors throughout the criminal justice process. Recording interrogations results in an increased number of guilty pleas, thus saving prosecutors' time and resources (see Sullivan, Police Experiences at 10; Press Release, Supreme Court of Indiana, New Supreme Court Evidence Rule Favors Recording of Police Interrogations [Sept. 15, 2009], http://www .in.gov /ilea/files/press_release _police_interrogations. pdf; Alan M. Gershel, A Review of the Law in Jurisdictions Requiring Electronic Recording of Custodial Interrogations, XVI Rich J L & Tech 9, 2 [2010]). "The recordings are 38 WEI L:\95134130\24\99995.5097 also likely to lessen factual disputes in court and reduce the number of motions to suppress evidence" (Press Release, Supreme Court of Indiana, New Supreme Court Evidence Rule Favors Recording of Police Interrogations [Sept. 15, 2009], http://www .in.gov /ilea/files/press_release _police _interrogations. pdf; see also Gershel at 2). In cases that go to trial, judges and juries tend to more readily accept recorded confessions rather than the defendant's written statement or a police officer's recollection of a confession (Sullivan, Police Experiences at 10). Recording interrogations also gives the prosecutor greater bargaining power during sentencing hearings (id.). 5. Benefits to the State. Recording interrogations also protects the State from civil liability. An accurate record "protects the state against meritless claims" (Scales, 518 NW2d at 591). "Claims for civil damage awards brought by allegedly abused suspects and exonerated defendants are avoided" (Sullivan, A Compendium of Law at 213). 6. Benefits to the public. Recording interrogations enhances public confidence in the criminal justice system and "protects the public's interest in honest and effective law enforcement" (Stephan, 711 P2d at 1161; see also Gershel at 2). A recording requirement discourages unfair and psychologically coercive police tactics, resulting in more professional law enforcement, which is an undeniable benefit to the public (see 39 WEIL:\95134130\24\99995.5097 Scales, 518 NW2d at 591). "Videotaping interrogations thus lends credibility to police work-especially in urban communities . . . where police are likely to be distrusted by large segments of the population-by demonstrating to prosecutors, judges, and juries both the fairness of police methods and the legality of any statements they obtain" (Leo at 683). As a representative from the El Paso County, Colorado Sheriff's Office stated, "Recording 'improves the image of the police in the eyes of the public. They see the fallacies shown on television are now what happens in real life."' (See Sullivan, Police Experiences at 16.) And, "Overall, recordings provide a substantial measure of assurance that it is the guilty, and not the innocent, who are charged and convicted, thus helping to ensure accuracy in the criminal process, and heightening the confidence of the judiciary, the bar, the media and the public in our system of criminal justice" (Sullivan, A Compendium of Law at 213). B. Law Enforcement Increasingly Has Used Recording Equipment to Record Custodial Interrogations of Felony Suspects. In the past decade, there has been a nationwide trend toward using electronic recording devices to record custodial interrogations of felony suspects. "In 2003, two state supreme court rulings and one state statute required recording of custodial interrogations" (Thomas P. Sullivan, Compendium Shows More Jurisdictions Recording Custodial Interrogations, Nat'l Ass'n of Criminal Defense 40 WEIL:\95134130\24\99995.5097 Lawyers, at 46 [Apr. 2014]). Currently, 19 states and the District of Columbia have "adopted electronic recording as a statewide practice" (id. at 47).5 Though some states have chosen to address the issue legislatively,6 many state high courts have recognized the myriad benefits of recording custodial 5 The trend toward electronic recording of custodial interrogations has continued at the national level as well. In December 2013, the International Association of Chiefs of Police "recommended recording all major interviews with crime suspects." Spencer S. Hsu, Police chiefs lead effort to prevent wrongful convictions by altering investigative practices, Wash. Post, Dec. 2, 2013, available at http://www. washingtonpost.comllocal/crime/police-chiefs-urge-changes-to- photo-lineups-other -tools-to-prevent-wrongful-convictions/20 13/12/02/5d8e9af2- 5b69-11 e3-bf7 e-f567 ee61 ae21_story .html [accessed Jan. 20, 20 15]). In July 2014, the U.S. Department of Justice instructed federal law enforcement officers to "electronically record all statements by suspects in federal custody before they appear in court" (Sari Horwitz, Holder tells federal law enforcement agencies to record statements by suspects in custody, Wash. Post, May 22, 2014, available at http://www. washingtonpost.com/world/national-security /federal-law-enforcement- agencies-directed-to-record-statements-by-suspects-in- custody/2014/05/22/2b5b70fe-e1ca-11e3-810f-764fe508b82d_story.html [accessed Jan. 20, 2015]). 6 The States that have enacted legislation regarding the recording of custodial interrogations are as follows: Connecticut, Illinois, Maine, Maryland, Michigan, Missouri, Montana, Nebraska, New Mexico, North Carolina, Ohio, Oregon, Vermont, and Wisconsin, as well as the District of Columbia (see Conn Gen Stat § 54-1; DC Code Ann§ 5-116.01; 725 Ill Comp Stat Ann 5/103-2.1; Me Rev Stat Ann tit 25, § 2803-B; Md Ann Code, Crim Proc § 2-401; Mich Comp Laws § 763.7-11; Mo Rev Stat ch 590.700; Mont Code Ann§ 46-4-406-46-4-411; Neb Rev Stat§ 29-4501-4508; NM Stat§ 29- r-16; NC Gen Stat§ 15A-211; Ohio Rev Code Ann§ 2933.81; Or Rev Stat§ 133.400; 13 V.S.A., chapter 182, subchapter 3, Law Enforcement Practices, § 5581, Sections 4 and 5; Wis Stat Ann §§ 968.073, 972.115). In addition, California enacted a statute in 2013 requiring videotaped recordings of custodial interrogations of juveniles suspected of homicide (see Cal Penal Code§ 859.5; Cal Welfare & Insts Code§ 626.8). 41 WEIL:\95134130\24\99995.5097 interrogations and chosen to address problems caused by a failure to record. Some state courts have explicitly required recording, while others have incentivized recording by creating a judicial penalty (possible exclusion of evidence or a jury instruction allowing for an inference adverse to the prosecution) where an interrogation is not recorded. Still other state high courts have adopted rule changes that require or encourage the recording of interrogations, after seeking public comment or asking for reports from committees. In all these situations, these courts have noted the significant benefits of recording to the defendant, the police officers, and the public. Furthermore, in those states in which high courts have expressed their support for recording interrogations, prosecutors and law enforcement have instituted policies of requiring the recording of interrogations. This Court should join the states that have moved towards requiring or incentivizing electronic recordation by requiring recording under its supervisory authority, or providing for a cautionary jury instruction in situations where there is a failure to record. 1. Three State Supreme Courts have required that custodial interrogations be recorded in order for a defendant's statement to be admitted into evidence. Three State Supreme Courts have required the recording of custodial interrogations as a necessary condition before a defendant's statement may be admitted in evidence. In one state, Alaska, the Supreme Court has held that a 42 WEIL:\95134130\24\99995.5097 defendant has a due process right under the state constitution to the recording of a custodial statement. In two other states, Minnesota and Wisconsin, the Supreme Courts have exercised their supervisory authority to require the recording of custodial interrogations as a condition of the admissibility of a defendant's statement. a. Alaska Nearly thirty years ago, in Stephan v State, the Alaska Supreme Court found that recording of a custodial interrogation at a place of detention was a requirement of due process under the state constitution (711 P2d at 1159). And, where there is an unexcused failure to record, a due process violation of the suspect's rights has occurred, and any statement thus obtained is generally inadmissible (id. at 1158). The Alaska Court particularly stated that it was convinced that recording, where feasible, was "a reasonable and necessary safeguard, essential to the adequate protection of the accused's right to counsel, his right against self-incrimination and, ultimately, his right to a fair trial" (id. at 1159-60). Where law enforcement fails to comply with this requirement, the state has the burden of showing, by a preponderance of the evidence, that recording was not feasible under the circumstances and, in these cases, the failure to record should be viewed with distrust (id. at 1162-63). 43 WEIL:\95134130\24\99995.5097 Writing that "the concept of due process is not static; among other things, it must change to keep pace with new technological developments," the Court noted that it had previously been thought that preserving breath samples from a breathalyzer was impracticable, but now when it became technologically feasible, many states began to require it under due process, or used reasoning similar to a due process analysis (id. at 1161-62). The Alaska Court emphasized that the contents of an interrogation are obviously material in determining the voluntariness of a confession, and the prosecution usually tries to show voluntariness through the interrogating officer's testimony that the defendant's constitutional rights were protected, while the defendant often testifies to the contrary (id. at 1161). The Court found that the undesirable result was essentially a "swearing match" between the law enforcement official and the defendant, which the courts must resolve (id.). b. Minnesota Although the Minnesota Supreme Court declined to address whether it is a state due process violation not to record an interrogation, that court required, in the exercise of its supervisory power to insure the fair administration of justice, that all custodial interrogations be recorded where feasible, and that all interrogations be recorded when questioning occurs at a place of detention (Scales, 518 NW2d at 592). In the event of a failure to comply with this requirement, the court held that 44 WEIL:\95134130\24\99995.5097 any statements the suspect makes in response to interrogation may be subject to suppression at trial (id.). c. Wisconsin Like Minnesota, the Wisconsin Supreme Court exercised its supervisory authority to insure the fair administration of justice and held that any custodial interrogation of juveniles must be electronically recorded where feasible and without exception at a place of (In re Jerrell C.J., 283 Wis 2d at 172, 699 NW2d at 123). Stating that it was "time for Wisconsin to tackle the false confession issue," the Court particularly noted that such a rule would not be regulating police practice, but rather be delineating a rule governing the admissibility of a confession into evidence (id. at 283 Wis 2d at 173, 699 NW2d at 123). Later that year, the Wisconsin legislature enacted a statute that expanded the recording requirement to custodial interviews of all persons suspected of felonies and created a jury instruction that it was the State's policy to record interrogations of felony suspects and that the jury may consider the absence of a recording while evaluating the evidence, unless subject to one of several exceptions (Wis Stat Ann §§ 968.073, -- 972.115). And, in a felony bench trial, the court can consider the absence of a recording when evaluating the evidence relating to the interrogation and the statement (id.). 45 WEIL:\95134130\24\99995.5097 2. Three State Supreme Courts have adopted procedural or evidentiary rules requiring the recording of interrogations. Three States-New Jersey, Arkansas and Indiana-have adopted rules of court requiring that interrogations be recorded. a. New Jersey In State v Cook, the New Jersey Supreme Court announced that it was going to evaluate whether it should encourage recording through the use of a presumption against admissibility of confessions or other means (179 NJ 533, 562 847 A2d 530, 546-47 [2004]). As a result, in 2005, the New Jersey Supreme Court enacted Rule 3: 17, which requires that unless a specified exception is present, all custodial interrogations conducted in a place of detention must be electronically recorded when the person is charged with one of several specified felonies (NJ Ct R 3: 17). If there is an unexcused failure to record, that shall be a factor for consideration by the trial court in determining the admissibility of a statement, and for the jury in determining whether the statement was made, and if so, what weight, if any, to give to the statement (id.). And, in the case where there is a failure to record, the defendant may request a cautionary jury instruction that permits the jury to draw an adverse inference as to the state's presentation of evidence regarding the interrogation or confession (Supreme Court of New Jersey Administrative Determination re: Report of the Special Committee on the Recordation of Custodial Interrogations, Appendix B [Oct. 15, 2005], available at 46 WEIL:\95134130\24\99995.5097 https:/ /www .judiciary .state.nj. us/notices/reports/recordation. pdf). If no recording is made, in the pretrial hearing, the State has the burden of proving by a preponderance of the evidence that an exception applies (id.). b. Arkansas Similar to New Jersey, the Arkansas Supreme Court recognized the benefits of a rule requiring recording and referred the practicability of adopting such a rule to the Committee on Criminal Practice for study and consideration (Clark v State, 374 Ark. 292, 304, 287 S.W.3d 567, 576 [2008]). As a result, in 2012, the Arkansas Supreme Court enacted Rule of Criminal Procedure 4. 7, regarding the recording of custodial interrogations. The Rule states that custodial interrogations should be recorded "wherever practical," and, in determining the admissibility of any custodial statement, a court can consider whether an electronic recording was made and the reasons for doing so or declining to do so (In re Adoption of Arkansas Rule of Criminal Procedure 4. 7; Amendments to Ark R Crim P 8.2; Administrative Order No. 18, 2012 Ark 294 [per curiam]). c. Indiana In 2011, the Supreme Court of Indiana enacted Rule of Evidence 617, which prohibits the admission into evidence (subject to certain exceptions), in a felony criminal prosecution, of a statement made by a person during a custodial interrogation if that interrogation and statement was not recorded (lnd R Evid 617). 47 WEIL:\95134130\24\99995.5097 In 2009, at the request of the Supreme Court, the Court's Committee on Rules of Practice and Procedure asked the public to comment on the practice of recording custodial interrogations (Press Release, Supreme Court of Indiana, New Supreme Court Evidence Rule Favors Recording of Police Interrogations [Sept. 15, 2009], http://www.in.gov/ilea/files/press_release_police_interrogations.pdf). After the court reviewed this information and the substantial body of existing legal and scientific research, it found that such a change would serve the interests of justice and sound judicial administration and amended the rule (id.). Stating that this rule change was enacted with the goal of helping police, prosecutors, courts, and juries in their search for "truth, justice, and due process of law," the Court also noted that an audio-video recording that captures the voice, facial expressions, and body language of both the suspect and the interrogator is a powerful tool for law enforcement, courts, and the public (id.). 3. Massachusetts High Court provides for a jury instruction in cases in which interrogations are not recorded. While the Massachusetts Supreme Judicial Court has not adopted a rule requiring the police to record custodial interrogations, that Court has held that the defense is entitled to a mitigating jury instruction when the police has failed to do so. In Commonwealth v DiGiambattista, the Court held that where police could have recorded a confession but failed to do so, the defendant could request a jury instruction indicating that the police's failure to record may be considered in 48 WEIL:\95134130\24\99995.5097 determining whether the State has met its burden of establishing voluntariness of the confession or statement beyond a reasonable doubt, and particularly that the statement may be evaluated "with particular caution" (442 Mass at 425, 813 NE2d at 518). Having previously stated that the lack of recording of an interrogation was a factor to consider in voluntariness, the Court emphasized that a judge could "reasonably conclude that when the party with the burden of proof beyond a reasonable doubt on the issues of voluntariness and waiver deliberately fails to utilize readily available means to preserve the best evidence of what transpired during the interrogation, it has not met that very high standard of proof' (id. at 442 Mass at 441, 813 NE2d at 529). The Court then specifically noted, "Even assuming the most conscientious and good faith efforts of an interrogating officer, and even aided by a contemporaneous written statement or summary report, the officer can at best reconstruct only a portion of what was said over the course of an interrogation conducted months and oftentimes years prior to the time the officer testifies. Those contemporaneous written reports and statements can only reflect what the officer at the time perceived to be of significance to the case, which may not include issues that emerge only later during the investigation or at trial. The failure better to preserve this critical evidence in the first place, a failure that is often attributable to the strategic decision of the interrogating officer, merits the fact finder's express consideration." (ld. 442 Mass at 446, 813 NE2d at 533.) The Court ultimately decided that juries should receive the same advice as judges on the significance they should attach to the lack of a recording, and thus 49 WEIL:\95134130\24\99995.5097 provided for a cautionary jury instruction on the weight the jury should give to evidence of the confession (id. at 442 Mass at 449, 813 NE2d at 534). In later cases, the Court indicated its clear preference for recording. It emphasized that the instruction had two parts, both of which were necessary to give to the jury, stating that "DiGiambattista is clear that, where the defendant requests the instruction, the judge must tell the jury both that (1) the State's highest court prefers that custodial interrogations be tape recorded, whenever practicable, and (2) where there is not at least an audiotape recording of the complete interrogation, the jury should weigh the defendant's statements with great caution and care" (Commonwealth v Barbosa, 457 Mass 773, 801, 93 3 NE2d 93, 117 [2010]). The Court also stated that where there is no audio recording, the instruction is "mandatory" (id. ). While the prosecution is free to present reasons that an interrogation was not recorded and the jury may consider it, those reasons or justifications do not obviate the need for an instruction (Commonwealth v Drummond, 76 Mass App Ct 625, 629, 925 NE2d 34, 38 [2010]). In fact, the judiciary's preference for recording was so great that in 2012, the Appeals Court of Massachusetts stated that, "the instruction may be given even when the defendant declines to have the statement recorded" (Commonwealth v Brown, 82 Mass App Ct 1123, 978 NE2d 591 [2012], review denied 464 Mass. 1103, 982 NE2d 1187 [2013]). 50 WEI L:\95134130\24\99995.5097 Law enforcement in Massachusetts responded to these rulings by promulgating internal policies to mandate recording of interrogations. For example, the state Attorney General and District Attorneys Association wrote in a Justice Initiative Report that "law enforcement officers shall, whenever it is practical and with the suspect's knowledge, electronically record all custodial interrogations of suspects and interrogations of suspects conducted in places of detention" (Thomas Sullivan & Andrew Vail, The Consequences of Law Enforcement Officials' Failure to Record Custodial Interviews as Required By Law, 99 J Crim L & Criminology 215, 219, n. 22 [2008-2009]). And, the Massachusetts Chiefs of Police Association, District Attorneys Association, and State Police circulated sample policies and procedures to law enforcement agencies throughout the state, reiterating that the policy of law enforcement should be to record interrogations (id.). 4. In Iowa the State Supreme Court issued a decision encouraging recording; thereafter, the Iowa Attorney General mandated that custodial interrogations be recorded. In State v Hajtic, while the Supreme Court of Iowa declined to require recording of interrogations, it recognized the many advantages of recording and stated, "[ w ]e believe electronic recording, particularly videotaping, of custodial interrogations should be encouraged, and we take this opportunity to do so" (724 NW2d 449, 456 [Iowa 2006]). Following this judicial statement, the Iowa 51 WEIL:\95134130\24\99995.5097 Attorney General wrote in the State Police Association's publication: "Although the court stated that it is 'encouraging' the practice of electronic recording, the attorney general's office believes that the Hajtic decision should be interpreted as essentially requiring this practice" (Tom Miller, Cautions Regarding Custodial Issues, 39 Iowa Police J 1, 15 [2007]). Subsequently, the Iowa Department of Public Safety issued an internal directive stating that it was the policy of the Department to "require" electronic recording of custodial interrogations, and later reiterated that officers "will" record interrogations (Custodial Interrogation Recording Compendium By State: Iowa, The Innocence Project [July 1, 2014], http://www.nacdl.org/usmap/crim/30262/48121/di#IA [accessed Jan. 20, 2015]). In 2012, the Iowa Supreme Court reiterated its preference for recording in People v Madsen, stating that "since Hajtic was decided, the use of video recordings as evidence at trial has become a common practice . . . to further the truth-seeking process" and encouraged the recording of non-custodial interviews where practical (813 NW2d 714, 721-22 [Iowa 2012] [internal quotation marks omitted]).7 7 Similarly, the New Hampshire Supreme Court emphasized the benefits of recording, stating that "[a] recording speaks for itself literally on questions concerning what was said and in what manner. Listening to a defendant be inculpated by his or her own voice has a persuasive power unrivaled by contradictory testimonial evidence" (State v Barnett, 789 A2d 629, 632-33 [NH 2001] [ruling that in order to admit a recording of an interrogation or confession into evidence, the recording must be complete and a partial recording is not admissible] [citation omitted]). 52 WEIL:\95134130\24\99995.5097 5. Summary. As states continue to reform practices in court and for law enforcement, this Court should join the States that are leading the country in this move toward requiring and encouraging electronic recording of interrogations and confessions. The benefits to law enforcement and prosecutors, the court system, the public, as well as defendants are well-documented by many state courts themselves. This Court should take steps to require electronic recording of interrogation, either acting pursuant to its supervisory authority, or, alternatively, following the approach taken by the Supreme Judicial Court of Massachusetts in Commonwealth v DiGiambattista (442 Mass. at 425, 813 N.E.2d at 518), to incentivize electronic recording in New York State by requiring a cautionary jury instruction in the absence of recording. Point III. Where Police Fail To Record A Custodial Interrogation Despite Having The Opportunity To Do So, The Defense Is Entitled To An Adverse Inference Instruction. Where police have the ability to record an interrogation but fail to do so, the defendant should be entitled to an instruction advising the jury that the failure to record is a factor it may consider in determining whether the statement was actually and voluntarily made. This Court has issued adverse inference instructions in situations where (i) a party fails to produce evidence that would elucidate a transaction in issue or support a claim it has made when that party has it 53 WEIL:\95134130\24\99995.5097 peculiarly within its power to produce such evidence (People v Gonzalez, 68 NY2d 424, 427 [1986]; Gordon v People, 33 NY 501 [1865]); and (ii) where the Court and where a party fails to call a material witness in its control (Devito v Feliciano, 22 NY3d 159 [2013]; Nassau County Dep't of Soc. Servs. ex rel. Dante M. v Denise J., 87 NY2d 72, 79 [1995]; People v Erts, 73 NY2d 872 [1988]). The circumstances here are functionally identical to both of those situations. Where the police fail to record an interrogation, both the court and the jury are deprived of necessary evidence to ensure a fair trial. A. Failure to Record Interrogations Is Identical to Other Actions in Which Failure to Preserve Evidence Results in an Adverse Inference Instruction. This Court has issued adverse inference instructions where a party has the peculiar power to produce evidence that would elucidate a transaction in issue or support a claim it has made, but fails to do so (Gordon, 33 NY 501). The same rationale applies in instances where police have failed to record custodial interrogations. When the police decide to conduct a custodial interrogation, the police have complete control of the situation. The interrogation occurs m a location chosen by the police and on a timetable designed by the police. The police have the power to record the entire the interrogation and thereby preserve evidence of the entire process. If the police and the prosecution choose instead only to preserve a statement favorable to the People's case-and not the entire 54 WEIL:\95134130\24\99995.5097 interrogation-that is no different from a party choosing to preserve a document that supports its case while other related documents are destroyed. Under these circumstances, an adverse inference instruction is fully appropriate. B. The Absence of a Recorded Interrogation is Akin to the Failure of a Party to Produce a Material Witness in Its Control This Court has approved the use of adverse inference jury instructions in cases in which a party has failed to produce a material witness to the event at issue who is in its control (Nassau County, 87 NY2d at 79 ["A trier of fact may draw the strongest inference that the opposing evidence permits against a witness who fails to testify in a civil proceeding"]). In fact, this Court has ordered new trials when material witnesses do not testify and such an instruction is not given (Devito, 22 NY3d 159; Erts, 73 NY2d 872). The failure to record a police interrogation is akin to a failure to produce a material witness to the transaction at issue-the interrogation itself. Therefore, the same rationale supports the use of an adverse inference jury instruction where the prosecution seeks to introduce a confession or statement, but fails to provide the recording that would reveal the circumstances under which the confession or statement was obtained. 55 WEIL:\95134130\24\99995.5097 C. Failure to Record Interrogations Is Identical to Other Actions in Which Courts and Juries Are Deprived of Necessary Evidence and An Adverse Inference Instruction Is Issued. Where police have the ability to record an interrogation but do not do so, the Court and the jury are deprived of perhaps the most probative evidence surrounding the reliability of a confession ( Culombe v Connecticut, 367 US 568 [ 1961] [holding a confession must be voluntary and not coerced, as determined by the "totality of the relevant circumstances"]). Indeed, a recording would be the most material, most relevant evidence of the voluntariness, accuracy, and credibility of a confession-issues with which both the Court and the jury must grapple-but here, that evidence simply does not exist. Like other instances in which the tribunal is not presented with a complete picture of the relevant evidence, an adverse inference instruction is appropriate here, too, in order to ensure the defendant a fair trial. 1. Without A Recording, New York Courts Do Not Have the Evidence Necessary to Determine Whether a Confession Was "Involuntarily Made" under CPL 60.45. As a testament to the power of confessions, New York imposes a high standard before confessions or statements can be introduced as evidence in trial (Criminal Procedure Law § 60.45 (McKinney) ["Evidence of a written or oral confession, admission, or other statement made by a defendant with respect to his participation or lack of participation in the offense charged, may not be received in 56 WEIL:\95134130\24\99995.5097 evidence against him in a criminal proceeding if such statement was involuntarily made."]; People v De Vito, 21 AD3d 696 [3d Dept 2005] [noting the admissibility of a defendant's statement poses a question of law for the trial court to determine after conducting a hearing]). CPL 60.45 directs courts to exclude confessions or statements that were "involuntarily made." In order to determine whether a confession or statement was "involuntarily made," New York courts must undertake two analyses. First, New York Courts must examine the totality of the circumstances that produced the confession to determine whether the confession was the product of either physical or psychological coercion (see Miranda v Arizona, 384 US 436, 448 [1966]), or, in other words, that the confession was given as a result of a "free and unconstrained choice by [its] maker" (Culombe v Connecticut, 367 US 568, 602 [1961]). For, "an involuntary confession is by its very nature evidence of nothing" (People v Leyra, 302 NY 353, 364 [1951]). Second, New York courts must consider the evidence of a confession's reliability. CPL 60.45 states that a confession or statement was "involuntarily made," and therefore inadmissible, where the government obtained the confession "by means of any promise or statement of fact, which promise or statement creates a substantial risk that the defendant might falsely incriminate himself." Hence, CPL 60.45 requires judges, as gatekeepers of trial evidence, to evaluate the government's actions that brought about the 57 WEIL:\95134130\24\99995.5097 confession and decide whether it would be so unreliable that the jury should not hear it. A recording is necessary for New York courts to perform both analyses. A recording would capture all the nuances of a custodial interrogation that may have a bearing on the voluntariness of a confession: the number of times a question was posed, subtle attacks on character, body language, and even contamination all constitute relevant situational factors that comprise the "totality of the circumstances" and the evidence of a confession's reliability (e.g. Thomas, 22 NY3d at 642). Thus, only a complete interrogation record can afford meaningful "involuntariness" review, and enable the court to understand the situational and dispositional risk factors that may have colored the interrogation, such as in this Court's review of the interrogation recording in the Thomas case. Without a recording, however, courts are deprived of these facts and are left with little more than the confession itself and the self-serving statements of police officers and the defendant upon which to base their determination of voluntariness. 2. Without A Recording, Juries Do Not Have the Evidence Necessary to Evaluate the Reliability of Confessions. The failure to record deprives not only the Court, but also the jury, of the necessary evidence to evaluate the reliability of confessions. After the Court decides a confession can be admitted into evidence, the jury, then, must assess its accuracy, voluntariness, and otherwise validity to determine what weight to assign 58 WEIL:\95134130\24\99995.5097 the confession when reaching a verdict. Without a recording, the jury is left to grope blindly in the dark, relying upon the self-serving testimony of the police and the defendant, as well as perhaps the jurors' own preconceptions regarding confessions, however misinformed those preconceptions may be. But juries have less experience to guide them in deciding whether confessions are false or otherwise unreliable. a. Jurors tend to overvalue confessions. Confessions affect the decision-making processes of jurors more so than any other piece of evidence (C. T. McCormick, Handbook of the Law of Evidence, 316 [2d ed 1972] ["the introduction of a confession makes the other aspects of a trial in court superfluous, and the real trial, for all practical purposes, occurs when the confession is obtained"]). "No other class of evidence is so profoundly prejudicial," and because it "so strongly tips the balance against the defendant . . . we must be especially careful about a confession's reliability" (Colorado v Connelly, 479 US 157, 182 [1986, Brennan J., dissenting] [internal citations omitted]). Scientists have tested the accuracy of these legal scholars' assertions by performing a series of laboratory experiments to illustrate the power of confessions. Studies that systematically compared eyewitness, character, and confession evidence, found that confessions produced the highest conviction rate among mock jurors (Saul M. Kassin & Katherine Neumann, On the Power of 59 WEIL:\95134130\24\99995.5097 Confession Evidence: An Experimental Test of the Fundamental Difference Hypothesis, 21 L & Hum Behav 5 [1997] [finding confessions have more impact on verdicts than other potent forms of evidence]). Extending this basic finding, Kassin and another colleague found that even when mock jurors recognized that confessions were coerced, they were not able to discount them when reaching a verdict (Saul M. Kassin & Holly Sukel, Coerced Confessions and the Jury: An Experimental Test of the "Harmless Error" Rule, 21 L & Hum Behav 1 [1997]). b. Jurors tend to believe a person who did not commit a crime would never falsely confess to the crime. The dangers of overweighing confessions when reaching a verdict are exacerbated by the tendency that most jurors have to believe that an innocent person would never falsely confess to that crime (see Kassin et al., Police-Induced Confessions at 24 [noting "generalized common sense leads people to trust confessions the way they trust other behaviors that counter self-interest"]). This preconceived notion is entirely untrue, yet it is nevertheless woven into the fabric of the storyline that jurors create to assess a confession and reach a verdict. For many people, it is hard to fathom that an innocent person would confess to a crime she did not commit, yet for numerous reasons, false confessions occur at surprising rates. Reasons a person might provide a false confessions range from intimidation factors to offers of leniency to cognitive disabilities (see supra Point I.A.). Jurors are simply not adept at assessing these situational and pre- 60 WEIL:\95134130\24\99995.5097 dispositional risk factors. Study after study shows that, even where the confessions are shown to be false, jurors do not discount the confession fully, demonstrating that confessions, regardless of their validity, have a tremendous impact on the verdict of a case, but perhaps more importantly that jurors have trouble accepting the fact that false confessions occur (see e.g. Richard A. Leo & Richard J. Ofshe, The Consequences of False Confessions: Deprivations of Liberty and Miscarriages of Justice in the Age of Psychological Interrogation, 88 J Crim Law & Criminology 2 [1998]; Drizin & Leo at 891 [finding when false confessors have pled not guilty and proceeded to trial, the jury conviction rates have ranged from 73% to 81 %]). Even when confessions are shown to be the result of coercion, jurors still do not fully discount the confessions (Kassin & Sukel; Saul M. Kassin & Lawrence S. Wrightsman, Prior Confessions and Mock Juror Verdicts, 10 J Applied Soc Psych 133 [1980]; Allison D. Redlich et al., Perceptions of Children During a Police Interview: A Comparison of Suspects and Alleged Victims, 38 J Applied Soc Psych 705 [2008]). Similarly, jurors tend to credit a confession even when they are told that the confessor suffered psychological illness or interrogation-induced stress (Linda A. Henkel, Jurors' Reactions to Recanted Cconfessions: Do the Defendant's Personal and Dispositional Characteristics Play a Role?, Psych, Crime & L 14, 565-578 [2008]). 61 WEIL:\95134130\24\99995.5097 Jurors have been willing to convict defendants on the basis of false confessions even where there is no corroborating evidence or where other evidence excluded the defendants. 8 Perhaps the best known instance of this happening in New York State is the case of the Central Park Five, who each confessed falsely but were convicted of rape despite exculpatory DNA results known at the time of their conviction (Center on Wrongful Convictions, "Other convictions in the face of exculpatory DNA" [2010]).9 It is clear from these circumstances that jurors' preconceptions about confessions are often inaccurate. c. An adverse inference instruction would enable the jury to recognize how the loss of evidence impairs the jury's ability to assess the reliability of a confession. An adverse inference instruction is an essential tool that can provide guidance to juries evaluating confessions without recordings and ultimately ensure 8 In an analysis of 125 false confessions, Drizin and Leo found that most innocent confessors who went to trial were convicted despite that either there was no further corroboration of the defendant's guilt or that the confession was contradicted by other evidence (Drizin & Leo; see also Kassin et al., Police-Induced Confessions). 9 The National Registry of Exonerations, a joint project between the Center on Wrongful Convictions and the University of Michigan, also identified 14 other persons who wrongfully confessed to rapes or murders in New York State and were convicted despite the availability of exculpatory DNA evidence (The National Registry of Exonerations, http://www .law. umich.edu/special/exoneration/Pages/detaillist.aspx ?View={ F AF6 EDDB-5A68-4F8F-8A52- 2C61F5BF9EA 7} &FilterField1=DNA&FilterV alue 1=8_ Y &FilterField2=ST &Filt erV alue2=NY &FilterField3=FC&FilterV alue3=8_ Y [accessed Jan. 20, 2015]). 62 WEIL:\95134130\24\99995.5097 a fair trial for defendants. In other instances where the jury is deprived of necessary evidence, this Court has no qualms about issuing adverse inference instructions (see e.g. People v Jackson, 168 Mise 2d 182 [NY Sup Ct 1995] [issuing adverse inference instruction in the context of a Brady violation ]).10 As such, trial judges, pursuant to their broad discretionary authority to manage a case, should redress the problem that arises where there is a failure to record and juries are deprived of necessary evidence similarly and issue an adverse inference instruction to the jury (see e.g. Cynthia A. Jones, A Reason to Doubt: The Suppression of Evidence and the Inference of Innocence, 100 J Crim L & Criminology 415, 421 [2010]). The adverse inference instruction is perhaps more appropriate here in light of jurors' tendencies to overweigh confessions coupled with their preconceived notions about the occurrence of false confessions. When no objective recording of a confessions exists to test the confession's validity, these tendencies play an even more emphasized role in the jurors' decision-making process: where the defense is 10 This Court should consider the analogy between failure to record despite having the ability to do so and Brady violations: the evidence at issue (i.e., the recording) is most often favorable to the accused, or at the very least material evidence, yet remains suppressed by virtue of the police's election to avoid creating that evidence (i.e., the recording). Thus, where recordings are not mandated and police fail to record custodial interrogations despite having the ability to do so, prosecutors enjoy a safe-harbor from the terms of the Brady rule when defendants crave its protection most, i.e., in determining the validity of a confession. 63 WEIL:\95134130\24\99995.5097 unable to point to any facts surrounding the circumstances that yielded a confession because no recording exists, jurors are left to fill that void by relying more heavily on their errant beliefs about the nature of confessions. Under these circumstances, juror biases are at their height and an adverse inference instruction would be most appropriate and valuable. Jury instructions are an essential instrument of a fair trial, which should be used to ensure substantive fairness and, among other functions, neutralize biases (e.g. Bruno v United States, 308 US 287, 293 [1939] [noting that, in the context of the accused's failure to testify, the trial judge must guide the jury by issuing instructions regarding considerations relevant to the verdict in order to manage "against the psychological operation of the jury's mind"]; Starr v United States, 153 US 614, 626 [1894] ["It is obvious that under any system of jury trials the influence of the trial judge on the jury is necessarily and properly of great weight, and that his lightest work or intimation is received with deference, and may prove controlling."]). Hence, where police fail to record a custodial interrogation despite having the ability to do so, a trial judge should have no hesitation about wielding her own "powerful tool" and issuing a jury instruction to correct the imbalance between the deficient facts and the jurors' over- emphasized biases (Carter v Kentucky, 450 US 288, 303-04 [1981] [trumpeting instructions as a protective device to reduce juror speculation and functionally effectuate the determination of guilt "from the evidence alone"]; see also People v 64 WEIL:\95134130\24\99995.5097 Sanchez, 61 NY2d 1022, 1024 [1984] [issuing specific instructions where proof is wholly circumstantial]; People v Whalen, 59 NY2d 273, 278-279 [1983] [issuing specific instructions where there is reason to question the reliability of evidence the jury might misconstrue as particularly reliable]). Similarly, an adverse inference jury instruction would serve the interest of justice in situations in which the People were attempting to introduce a statement made by a defendant during a custodial interrogation, but failed to record the entire interrogation. 65 WEIL:\95134130\24\99995.5097 V. Conclusion For the foregoing reasons and those stated in Mr. Durant's brief, this Court should reverse the decision of the Appellate Division, and remand this case to the Supreme Court with instructions to hold a new trial with an adverse inference jury instruction. Date: April14, 2015 Respectfully submitted, 3;L;!J., L ~. Steven A. Re1ss Melody E. Akhavan WElL GOTSHAL & MANGES LLP 767 Fifth Avenue New York, N.Y. 10153-0119 (212) 310-8000 Of Counsel: David B. Hird Daniel Riegel James Sadler Vanshika Vij WElL GOTSHAL & MANGES LLP 1300 Eye Street, N.W., Suite 900 Washington, D.C. 20005 (202) 682-7000 Attorneys for Amicus Curiae11 The Innocence Project 11 The Attorneys for Amicus Curiae thank former associate Amanda Norton for her contributions to the brief. 66 WEIL:\95134130\24\99995.5097