Memorialization of an Interview | Audio, Video, or Nothing?

One of the most common and most important tasks that a law enforcement officer will routinely perform while on duty is interview or interrogate witnesses, victims, and suspects. Good law enforcement officers must be able to quickly develop a rapport with the person they are interviewing, and must maintain control of the conversation as well as the environment in which the conversation is taking place. A good law enforcement officer must also realize that the substance of their interviews and interrogations whether they be friendly or hostile, may end up being scrutinized in a court of law.

With that being said, what tool should a law enforcement officer use to memorialize their interviews and interrogations? Is it enough to simply take notes during an interview and subsequently use those notes to write an investigative report detailing the substance of the interaction? Should law enforcement departments and agencies make it mandatory for their officers to record all interrogations either via audio, video, or both? Here we take a look at some of the advantages and disadvantages of the various methods of interview and interrogation memorialization and how several of the major potential issues regarding these methods can be avoided.

Notes or Memory: The Low Tech Methods

Before the invention and massive proliferation of the various recording devices available to law enforcement today, officers were forced to rely on handwritten notes, their own memories, or a combination of both to memorialize interviews or interrogations. While low-tech methods such as these may have sufficed and then became the norm for previous generations, most law enforcement officers today prefer to have their interactions recorded in some way. The single advantage for choosing not to record an interview or interrogation is that it gives the interviewing officer the ability to include or omit as much or as little about the interview or interrogation as they see fit. This will in turn save the officer the hassle of transcribing an entire interview or interrogation if the need arises at a later date. The investigator who chooses to use this method however, must be above reproach and must include any possible exculpatory material in his or her report even if said material is likely to hurt their case. Law enforcement officers who are less than 100% forthright when generating their reports risk putting their cases and worse their careers, in jeopardy.

Audio and/or Video Recordings

By far the preferred method of interview and interrogation memorialization for law enforcement officers and prosecutors in the United States is audio recording, video recording, or a combination of both. These types of recordings allow for little interpretation as to what the various parties involved with the interview or interrogation actually said and what tones and postures the law enforcement officers took with the subject. While these methods are widely preferred, law enforcement departments and agencies that authorize the use of audio and/or video recording devices during interviews or interrogations must be prepared to provide their officers with the appropriate training in using these devices as well as the appropriate digital evidence management infrastructure that is needed to store and maintain these recordings.

Does your department or agency have a dedicated and specific digital evidence management system or do you rely on your general evidence management system for storage of digital evidence? If your officers are using video to capture interviews or interrogations, does your department or agency have a video evidence management system capable of storing the large amounts of data that will be generated as a result of using video recording devices? Proper infrastructure must be put in place before any interviews or interrogations take place in order to ensure success.

Avoiding Common Pitfalls

Your law enforcement officers have been trained, the appropriate evidence management systems are in place, and your department or agency is now ready to begin using audio and/or video recording devices when conducting interviews or interrogations. What are some of the common mistakes that law enforcement officers make when using audio and/or video recording devices during interviews or interrogations? First and foremost, law enforcement officers must ensure that they are not breaking any laws if they are recording an interview or interrogation surreptitiously.

Currently, 12 states (California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington State) have laws prohibiting the recording of any conversation unless every single person in the conversation gives consent to be recorded. While a law enforcement officer acting in good faith is unlikely to face personal legal consequences for violating these laws, they may risk putting their case in jeopardy by doing so. Additional considerations must also be made when the subject of the interview or interrogation belongs to a vulnerable class such as when the subject is a minor or the victim of a crime. If necessitated, does your department or agency have access to audio redaction software or video redaction software? Are your officers trained in the use of this software? Preparing for these contingencies before they are encountered can stop many future headaches before they occur.

Further, does the digital evidence management system you have in place make ingestion of these interviews and interrogations seamless? Meaning, will the system automatically take in the recording as it happening live, and store it in the system, linking it to the relevant case? If not, then your system is creating more work for your personnel that distracts from their focus of getting truthful, transparent statements from people concerning the matter at hand, justice.

Conclusions

Proper memorialization of interviews and interrogations are musts for any successful prosecution. Law enforcement officers conducting and leading these conversations must decide if the best course of action is to rely on notes and/or their own memories’ to generate the investigative reports that must be written after an interview or interrogation, or if it is necessary and beneficial to use audio and/or video recording devices to do so.

Law enforcement departments and agencies who authorize their officers to use audio and/or video recording devices during the performance of their official duties must ensure that they provide their officers with proper training in the use of said devices, and must also ensure that the proper infrastructure capable of storing and managing any digital evidence generated as a result is in place. Law enforcement officers who choose to use audio and/or video recording devices must be sure that they are complying with all applicable laws when doing so, and considerations and potentially additional accommodations must be made when dealing which subject belonging to a vulnerable class. By being aware of the potential issues and taking affirmative steps to reduce the likelihood of problems before they happen, law enforcement departments and agencies can be sure that they have given their officers the tools they need to do their jobs successfully.