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Barth: Another Supreme Court's missed opportunity 

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Even when blockbuster decisions are not being handed down almost daily by the U.S. Supreme Court, rules of procedure passed down by Arkansas's top court typically gain little attention. Most outside of the legal profession don't even know the state Supreme Court's power to remake important rules in the Arkansas justice system — rules that fundamentally shape whether the justice system provides accurate and fair rulings on matters criminal and civil. While a start towards the goals of accuracy and fairness, an amendment to the Arkansas rules of criminal procedure handed down by the Court last week promoting the recording of interrogations by Arkansas police was a missed opportunity for the Court.

Stating that recordings should be done "whenever practical," the new rule does not require that all interrogations carried out by police officials in Arkansas be recorded from start to finish. Instead, the new rule allows trial courts to consider whether a failure to record a statement undermines the value of the evidence provided by the interrogation. Moreover, the rule is silent on whether video recording should be employed; other states have adopted videotaping as the preferred method of recording because of the information inherent in seeing the face of the person being interviewed across the hours.

As in many criminal justice matters in the contemporary era in Arkansas, there is a link between this rule and the West Memphis Three case. In Jessie Misskelley Jr.'s 1996 appeal of his conviction in the case, his attorneys cited the fact that the infamous lengthy interrogation of Misskelley was not recorded in its entirety as one justification for a reconsideration of the verdict. The Supreme Court rightly noted that "No Arkansas law requires this."

While less well known than the interrogation central to the WM3 case, the case of Thomas Cogdell from Camden is just as troubling. As a 12-year-old, Cogdell was convicted of killing his younger sister based solely on his confession. Police began video-recording his interrogation, during which he adamantly and tearfully denied all wrongdoing in his 11-year-old sister's death. After the boy broke down under strenuous questioning, police turned off the camera. Several hours later, the camera was turned back on and the boy calmly confessed to his sister's murder. After the confession, Cogdell's mother was brought in and Thomas whispered she shouldn't worry because fingerprint evidence would prove his innocence. Later, Cogdell said that during the lengthy gap in the recording, he was threatened with the death penalty if he failed to confess. Ultimately, the conviction was reversed because of the police's failure to adequately inform the boy of his right to remain silent. Under a mandatory recording rule, of course, police would never have been permitted to create the mysterious gaps in the recorded interrogations of Misskelley and Cogdell.

For advocates of fairness and accuracy in the criminal justice system, the new rule was not the desired outcome. In their comments to the Court leading up to this final action, those promoting required taping of such interviews noted the ease of such recordings in an era when technology is cheap and omnipresent. Indeed, over 15 other states have created such requirements through court rules or through legislation. In addition, advocates of a change argued that videotaping is decidedly preferable to audio recordings because of all the information provided by those pictures. (Indeed, on the same day that the new interrogation rule was issued, the Court showed its own awareness of the importance of such visual information in a new rule allowing videoconferencing in pretrial hearings; in that rule the Court affirmed that the video quality must "allow the participants to observe each other's demeanor and nonverbal expressions as well as the demeanor and nonverbal expressions of any witnesses who testify in the proceeding.")

While less than perfect, the new rule is, as the Court put it, a "starting point." The power is now in the hands of police and sheriff officials in Arkansas to do the right thing and always videotape interrogations, prosecutors to encourage them to do so enhancing the likelihood that they will get their prosecutions right, and local circuit judges to challenge any interrogation presented as evidence that cannot be seen and heard from start to finish.

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