A new rule that might have saved the West Memphis Three—and a plea to strengthen it

Jessie Misskelley at his trial

On May 26, the Arkansas Supreme Court issued an opinion stating that, “Whenever practical, a custodial interrogation at a jail, police station, or other similar place, should be electronically recorded.” The opinion proposes changes to the court’s Rules of Criminal Procedure and gives the public until June 30 to comment on what it has proposed.

This is good news—to a point. The opinion announces that courts will no longer automatically accept interrogations that are not electronically recorded or that were only recorded in parts—as in the case of Jessie Misskelley, Jr. The word “should” in the opinion carries some weight, which is an improvement over current practice.

But the court’s proposal falls short of the “best practices” for electronic recording that have long been recommended by professional groups, including the American Bar Association. Instead of “should,” the new rule should read: “shall.”

Without that change, the proposed rule provides no penalty if officers fail to record. To actually have teeth, the rule must stipulate that, barring extraordinary circumstances, unrecorded interrogations will not be admitted in court.

[private] The proposed rule also fails to define “interrogation.” Could officers argue, for instance, that the first four hours or so they spent in a room at the police station with Misskelley were only “questioning”—not an interrogation?

 Finally, the proposal states that a court could accept an unrecorded custodial statement if “electronic recording was not feasible.” But what does that mean? If an officer thinks that the person being questioned might clam up if a recording device were turned on, would that be enough to support a claim that recording was not “feasible”?

 A group of Arkansans, including me, has worked for months to encourage the supreme court to adopt a rule on electronic recording that will be clear and strong enough to serve police, prosecutors and defendants well into the future. We applaud the state supreme court for taking action on this important subject, but we also urge Arkansans to tell the court we want better recommendations.

 Letters from individuals living outside Arkansas will probably have little impact—and might even annoy the court. If you don’t live in Arkansas but know someone here, consider asking them to write. And find out what, if anything, the court in your state requires regarding electronic recording of interrogations.

If you do live in Arkansas, please draft a personal letter from the information below. There is an overview of the need, a very brief statement and a longer letter. Adapt the information as you see fit and send your letter, no later than June 28, to:

Mr. Leslie Steen

Clerk to the Arkansas Supreme Court

Justice Building
625 Marshall Street
Little Rock, AR 72201

 Damien Echols, Jason Baldwin and Jessie Misskelley have spent 18 years in prison, based almost entirely on one error-filled and convoluted confession that was recorded only in part. What might have happened differently for all of them if a recorder had been running the whole time Misskelley was questioned?

 What happened to the West Memphis Three cannot be undone. But similar injustices can be avoided in the future.

 OVERVIEW

It has been three years since the Arkansas Supreme Court requested that the Committee on Criminal Practice study and consider whether police should record interrogations. This request came about in Clark v. State, where the defendant argued that when police interrogated him, they coerced him into confessing to a crime he did not commit. Only the police and the defendant know what truly happened in that interrogation room.

It’s hard to imagine confessing to a crime you did not commit but, in about 25% of DNA exoneration cases, innocent defendants made incriminating statements or confessed to a crime they were later proven not to have committed. Christopher Ochoa and Richard Danziger both spent 12 years in prison for a rape and murder they did not commit. Jurors in their case felt robbed when they did not have a recording of the interrogation, especially since the “confession” was the only evidence against the defendants.

It is crucial that the Supreme Court of Arkansas join the 18 other states that have adopted a rule that requires police to record interrogations of suspects. Most police stations in Arkansas already have recording equipment but there are no standard policies about when they turn the recording devices on. 

Your letter to the Arkansas Supreme Court should ask it to improve the accuracy, fairness, and reliability of trials by requiring recorded interrogations.

MODEL SHORT LETTER

The Arkansas Committee on Criminal Practice has issued a recommendation to the Arkansas Supreme Court regarding electronic recording of interrogations. The committee’s recommendation fails to meet best practice standards and falls short of protecting citizens from wrongful convictions because they do not require police to fully record interrogations, they merely suggest recordation.  I/we request that the Arkansas Supreme Court adopt a rule that would require police to electronically record interrogations in their entirety.

MODEL LONGER LETTER

Dear Justices of the Arkansas Supreme Court:

I am writing to urge you to create an evidentiary rule requiring custodial interviews to be video recorded from start to finish. My interest in this issue arises from a desire to improve accuracy, fairness, and reliability of the fact-finding mechanisms within the criminal justice system.

Legal scholars and professional organizations recommend complete recording of interrogations in order to provide decision makers with the tools that will allow them to accurately ascertain the facts surrounding criminal offenses in order to correctly identify perpetrators so that they may be punished and the community may be safe. Having a complete audiovisual record not only protects the rights of suspects, but it also protects municipalities from false claims of police misconduct.  Most importantly, it enhances public trust by adding transparency and accountability to the process of investigating and prosecuting crimes.  

It has been three years since Clark v. State wherein which you referred the issue of electronic recording to the Committee on Criminal Practice for study and consideration. Since that decision, additional states have joined in requiring recordation, including Indiana, whose Supreme Court created this requirement for evidentiary rules.

More than 500 jurisdictions have voluntarily adopted recording policies with 84 percent believing that videotaping improved the quality of police interrogations. A study of the law enforcement perspective on the practice found that “virtually every officer who has had experience with custodial recordings enthusiastically favors the practice.”  The number of police departments that record will only increase over time, and we believe that Arkansas has the opportunity to demonstrate leadership by requiring custodial interviews to be video recorded. 

In short, I ask you to approve a rule that requires recording of police interrogations to create uniformity in the system. As a citizen and potential juror, I urge you to give me access to all the facts of a case by requiring recordation of the interrogation.

Sincerely,

 [Your name][/private]

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