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Supreme Court rule would not mandate recording 

MISSKELLEY: Serving a life sentence at the Varner Unit near Grady.
  • MISSKELLEY: Serving a life sentence at the Varner Unit near Grady.

The Arkansas Supreme Court Committee on Criminal Practice has proposed a rule that would encourage, but not require, the electronic recording of police interrogations. The panel, which is made up of judges, prosecutors and defense lawyers, has opened the proposed ruling for public comment until Friday, July 1.

Seventeen other states require taping of interrogations, according to the Innocence Project, a group that tries to assist prisoners who might be freed through DNA testing.

The proposed rule states that "whenever practical, a custodial interrogation at a jail, police station, or other similar place, should be electronically recorded." The admissibility of any custodial statement will be determined based on the "totality of the evidence," meaning it will be considered alongside other factors, such as why a recording was not made, if it has been clearly altered, the length of the interrogation, age of the suspect and if the suspect is particularly vulnerable for any reason known to the police.

The proposal's language concerns some defense attorneys.

Jeff Rosenzweig is a Little Rock attorney who represents Jessie Misskelley, a member of the West Memphis Three who was jailed for life based on a confession he made at the age of 17. Only parts of that confession were taped. Rosenzweig said he could not talk about the Misskelley case, but could comment generally on the proposed rule.

"It has so many caveats, like 'where feasible,' 'it's just one thing to consider,' etc., etc.," he says. "In terms of its ultimate impact — I'm glad we have it as opposed to not having it. But a lot of its ultimate impact will come down to how the Supreme Court actually interprets it."

Felicia Epps is a professor of law and associate dean at the Bowen School of Law in Little Rock. She says the rule contains a few "wiggle words."

"For example," she says, "'whenever practical.' What does that mean? The court will tell us that. There's another one: 'when feasible.' That's one of the exceptions in the rule, when it wasn't feasible for a recording to be made. Well, what does that mean? Now you can just pick up a phone and make a recording."

When asked if the rule would apply to Misskelley's case, Epps says it would not because there's nothing retroactive about the rule.

In 2009, the state legislature passed Act 759, which would allow courts to consider whether a confession or waiver of counsel was recorded when determining if either was given "freely, voluntarily and intelligently," but only in the case of juveniles. No such law exists for those over 18 years of age.

Paul Kelly, a senior policy analyst at Arkansas Advocates for Children and Families, worked to pass the 2009 law. He has concerns about the proposed Supreme Court rule.

"We are working to try to get it to where they require taping," Kelly says. "The current proposal is even weaker than what we set in 2009. I don't think it would change behavior much. There's no consequence for not doing it, so there's no real motivation."

But Rosenzweig says it's not likely the rule will be made stronger, although it is possible.

Bob McMahan, prosecutor coordinator for the state of Arkansas, says the Arkansas Prosecuting Attorneys Association has not yet taken a position on the rule change, though it will be discussed by the group's board later in the week.

Epps says the rule should not hurt prosecutors.

"When I first looked at this I can see where it's an advantage to the defense," she says. "The prosecutors aren't losing anything because we're still applying that totality of the circumstance test. It would be different if the Supreme Court was trying to say, 'If you don't record it, it will be excluded.'"

However, Epps can imagine some scenarios where taping might have a chilling effect on getting confessions for crimes. Suspects are much less willing to confess when they know they're being taped, she says. For that reason, law enforcement concerns that taping suspects would affect their rapport may be justified.

For others, the real question is: Why not?

"The only reason that you wouldn't want to record is that you want to give yourself — and I'm talking about the police here because they're the ones that have the recorders — you want to have the flexibility to lie if you want to," Rosenzweig says. "In other words, if you're taking a statement, the accuracy of what is being said is extremely important. You can pick up the nuances. Different people talk different ways. You want to know whether a particular statement is a particular statement. For instance, 'I did the burglary' is different from, 'I did the burglary?'

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