When police interrogate a witness or suspect, who should know what is said? How should that exchange between law enforcement and interview subject be recorded, represented and shared?

This is a question of great weight. One of the key components of any law enforcement investigation is the interrogation of witnesses. Police can interview suspects and witnesses alike as a fact-gathering tool. Often that information forms the basis of the theories of a crime, the narrative of what happened and the supporting evidence to prove it. So accurate representation of what someone has said is paramount to a strong investigation. It has only been recently, though, that a new movement is afoot: one demanding mandatory electronic recording of all custodial interrogations in serious cases. 

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Why?

As awareness has increased that innocent people can be - and are convicted of crimes they didn’t commit, there has been a growing interest in understanding how this happens. One area of deep concern is what transpires in an interrogation room behind closed doors between cops and interview subjects since research into wrongful convictions shows that some people have been jailed on the basis of false or coerced confessions or misrepresentations of what witnesses or suspects have said to police. 

One easy way to eliminate any dispute concerning what happens during an interrogation is to electronically record it, either with audio or even better, video equipment. This is, by far, the most accurate way to preserve what transpired, what was said, or not, and by whom. There is, simply, no other means to precisely and faithfully record the interview. 

Alaska, Illinois, Maine, Minnesota, Wisconsin and New Jersey require taped interrogations and with good reason. A special report by the Northwestern University School of Law Center on Wrongful Convictions found that police departments that routinely use electronic recordings of interrogations were overwhelmingly positive about the benefits of the practice. Those police departments reported that it enhanced investigations, did not deter confessions and, overall, eliminated court time resolving disputes of who said what to whom. 

Recording custodial questioning is necessary to prevent police from using coercive tactics or misstating what has been said. It creates a permanent record and prevents later strife about the police treatment of subjects, whether Miranda rights were given, and what actual statements were made. This is a law enforcement version of an instant replay. 

With electronic recordings of interrogations, witnesses or suspects can’t change their version of events, and neither can police or prosecutors. Which makes one wonder why Assistant Attorney General Karen Huntress ordered that no recording be taken of admitted killer and key witness Michael Benton, according to a deposition taken of New Hampshire State Police Frederick Lulka on June 17, 2008? Or why New Hampshire State Police Scott Gilbert claims in a deposition on June 27, 2008 that during two days of interviews with one of the actual killers, Michael Benton, the interviews were NOT recorded because it’s never been done when an attorney has been present - especially suspect when it is likely the time that Benton and his attorney worked out some deal in exchange for his testimony and SHOULD HAVE BEEN RECORDED.

The reason this is critical in the case of Jesse Brooks is that it’s impossible to know what version of police and prosecutor interviews accurately reflect what the key witness Benton told them and whether any part of the story was encouraged by authorities rather than what the “cooperating” witness purportedly remembered. And actually, there’s much cause to doubt the version of police and prosecution interviews that has been offered in the case. The lead investigator NH State Police Sgt. Robert Estabrook said in a June 27, 2008 deposition that it was only in the second interview with Benton, WHICH WAS NOT RECORDED, when Benton first mentioned Jesse’s name in a very vague and tenuous connection to the case. 

The New Hampshire Supreme Court has already weighed in on this topic in State v. Barnett in 2001 and recommends that law enforcement record ALL interviews WITH WITNESSES AND SUSPECTS.