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COA decides on adverse inference without recordings

New York’s highest court is considering whether judges must tell jurors they can make an adverse inference when police don’t make audiovisual recordings of their interrogations.

Janet C. Somes, an assistant Monroe County public defender, argued before the Court of Appeals last week that, when police have the ability to record, but they don’t do so, defendants should be entitled to an adverse inference charge, telling the jury that they may consider the failure to record in their determinations about the statement.

The question arose from a 2008 robbery on North Clinton Avenue in Rochester, for which Everett Durant was charged. Durant waived his Miranda rights; police had recording equipment at the city’s public safety building, but not at the East Side station, where an investigator wrote Durant’s statement, and Durant signed it.

At trial, Durant’s attorney asked for an adverse inference charge because there was no recording of the interrogation, but the court refused.

“If the crime is important enough for the police to interrogate, it should be important enough for the police to record,” Somes said Oct. 20 in the Court of Appeals.

Somes argued that when police don’t record their interrogations, the written statements created can’t be reviewed like a video or audio recording. “That puts the defense at an incredible disadvantage,” she said.

“So if they don’t record it, they can’t use it?” Chief Judge Jonathan Lippman asked. “Or they can use it, but, they a get a natural inference against it?”

“We are asking for the natural inference against it,” Somes replied. “This court has found an adverse inference instruction to be appropriate in cases where evidence has been withheld from one party by another, something that the other party has done. It’s been to mitigate the harm or the damage done.”

Judge Sheila Abdus-Salaam noted that more police agencies have been obtaining recording equipment in recent times.

“Doesn’t that suggest that what you’re asking for will happen, or is happening?” Abdus-Salaam asked.

“Absolutely not,” Somes replied. “It would still be up to the police to say when they’re going to record, when they’re not. We’re asking for a rule that would incentivize recording in all cases.”

Judge Jenny Rivera asked that if the court decides in Durant’s favor, would that mean future criminal trials might include a “mini-trial” of government policy choices about recording equipment placement and usage. “They would have to put forth evidence as to why they didn’t act badly,” Rivera said.

Monroe County Assistant District Attorney Geoffrey Kaeuper argued that although recording interrogations is beneficial, the problem was complicated because of the money and work it would take to record and store all of the interrogations.

“There’s no dispute that recording interrogations is a good thing. And there’s been massive efforts undertaken by law enforcement, by the judicial task force, to bring this about. But it’s a complicated problem,” Kaeuper said.

Judge Eugene F. Pigott responded that making recordings didn’t seem very complicated to him.

“There are serious problems with resources,” Kaeuper countered.

“Well I know enough about Rochester to know that the East Side down to the public safety building is not that far,” Pigott said.

“Right, but there are a limited number of interrogation rooms that have recording equipment,” Kaeuper said.

“Got a cellphone?” Pigott asked. “You can give a dozen reasons why you can’t do it in high-fidelity but it seems to me that when you’ve got a situation like in this one, when the interrogator was asked about the interrogation that he undertook … that he condensed what the guy said, wrote it down, and then had the guy sign it. Well, who gets to decide what gets condensed? Who gets to decide, ‘this is an important fact, and this one isn’t, in a situation like that?’”

“Isn’t the general consensus today that it doesn’t cost very much because of the modern advances in equipment?” Lippman asked. “I mean, the question is … how fast you move to, you know, that place where maybe all interrogations would be videotaped, but it is not that big a deal today, right?”

“It’s becoming much less of a big deal,” Kaeuper replied. “That’s one of the reasons that this is moving forward, and I think that’s a good reason to allow the legislature set the appropriate parameters.”

Lippman said: “We’re moving in that direction, clearly. Should we be saying in a case as a matter of law that if you don’t do it, there’s an adverse inference? Is that the way we should be going, or is it more a policy issue, and the trend of it is all very clear? … Why go that route instead of letting it evolve?”

“Because the human cost of wrongful convictions is too high,” Somes replied.

The case is People v. Everett M. Durant.