There are moments of the two-day police interrogation that led to Christopher Ochoa’s wrongful conviction — which resulted in his spending 12 years in prison before a 2002 exoneration — that will never be known. Not all of the interrogation that preceded Ochoa's false confession to the murder of Pizza Hut employee Nancy DePriest in Austin — and implication of his roommate, Richard Danziger — was recorded.
Some advocates argue that such false confessions could be prevented if police interrogations were recorded. SB 87, by state Sen. Rodney Ellis, D-Houston, would require police to record the questioning of suspects in cases involving murder, kidnapping, human trafficking and some sex crimes.
“Recording an interrogation is the most accurate means of preserving what happened in an interrogation room and what a suspect actually said,” Ellis said in an email.
Texas law already requires in most cases that investigators tape the confession itself. But in the wake of a handful of exonerations involving false confessions, defense attorneys and other advocates worry that without a recording of the entire interrogation, they may never know how a false confession occurred. Nineteen other states and the District of Columbia already require such recordings.
While some prosecutors and police support the idea, others worry that it could be used to unfairly target law enforcement officers and that it would make it harder to convince a jury that a confession was valid in the absence of a recording. The bill includes a variety of exceptions to the rule, allowing for spontaneously given confessions and faulty equipment, and advocates hope those will make police officers comfortable that the recording requirement would not undermine their work.
Requiring recorded interrogations was a suggestion of the 2010 Timothy Cole Advisory Panel on Wrongful Convictions, which made policy recommendations based on its review of overturned convictions. Among the panel's other suggestions was reforming eyewitness identification practices, and lawmakers approved legislation that aligned with that recommendation in 2011.
Kathryn Kase, director of the Texas Defender Service, an organization that represents death row inmates, said that two years ago she worked closely with the Texas Police Chiefs Association on a bill that narrowed the number of crimes for which an interrogation recording would be required. Police cars already have recording equipment for routine traffic stops, she said, so “why can't the police record this information?”
Jurors often “overvalue” confessions, Kase said. "They think, 'Well, I would never falsely confess to something I didn't do.’ But we know from DNA exonerations that this simply is not true."
She was surprised when several law enforcement and prosecution groups in 2011 testified against requiring recordings.
Mark Clark, executive director of the Houston Police Officers’ Union, testified against the 2011 bill and said his organization still opposes the requirement. He said that the Houston Police Department had identified only two murder cases over the last 20 years in which a suspect falsely confessed.
“It's our opinion that there is not a problem in Texas related to false confessions,” Clark said in an email. “We believe the proposed legislation is about putting hard working and honest law enforcement officers on trial.”
Lon Craft of the Texas Municipal Police Association said the bill was “another attempt for the defense bar to find new ways to object to lawfully obtained confessions.”
Murray Newman, a former prosecutor in the Harris County district attorney’s office, said that in the past recording technology was expensive, and police interviews might “ramble on for hours and hours” as officers gained the trust of suspects and then turned on a recorder or asked the person to write a statement at the very end. Police and prosecutors worried that juries and attorneys would not understand or be willing to listen to hours of “inane” conversation that often precede a confession.
“There are pros and cons from every angle,” Newman said, comparing the suggested interrogation recordings to the installation of recording equipment in Texas police cars, which began in 2001 with the federal End Racial Profiling Act. The recordings could protect police officers from charges of wrongdoing, particularly racial profiling, but they could also document mistakes that could be used against officers in court.
“Prosecutors have mixed opinions about the concept of recording interrogations,” said Shannon Edmonds, legislative director of the Texas District and County Attorneys Association. Having a record of an interrogation might allow prosecutors to rebut charges that a confession was coerced, he said. But “if recording is mandated by law, then a failure to record in violation of that law makes an otherwise lawful and voluntary confession inadmissible in court. That’s troubling to some prosecutors.”
In a debate over a similar bill in 2009, state Sen. Dan Patrick, R-Houston, said he worried it would create “a big loophole that you could drive a truck through to get people off” of criminal charges.
Legislators could consider exceptions to the recording requirement in circumstances where police could not get a recording, said Richard Leo, a professor at the University of San Francisco School of Law who studies police interrogation methods.
“You can water it down or qualify it in a way that makes it okay with police groups,” he said. In civil cases, he said, depositions of witnesses have to be recorded, and the same standard should exist in criminal cases when the punishment could be the death penalty or life in prison. He added that when juries see a debate between defendants and police officers over what occurred during an unrecorded interrogation, police “tend to be more believable.”
“You have to trust what the police officer says,” said Brian Stull, an attorney with the American Civil Liberties Union who represents death row inmates. Without recordings, he said, even well-intentioned police officers may forget exactly what happened during an interrogation and give incomplete information to a jury.
“They may be telling the truth, but there are things that could just be lost," Stull said.
Ellis’ bill would allow unrecorded confessions to be used in court if they are made “spontaneously,” if the suspect refuses to be recorded, or if the officer makes a "good faith" effort but there is a problem with the recording device. The bill does not require video recording.
"My hope is that those that have opposed it in the past will come around," Ellis said.