May 19, 2005
Public Hearing on “Electronic Recording Procedures and Penalties Act of 2005,” Bill 16-138
As we move forward, I think it is critical that the underlying law on electronic recordings be clarified and standardized. I want to reiterate that our Department generally supports the “Electronic Recording Procedures and Penalties Act of 2005.” It would provide for one clear set of standards governing electronic recording of custodial interrogations. At the same time, the proposed legislation would remove some provisions of the Electronic Recording Procedures Act of 2004 that our Department has opposed on policy and operational grounds.
Specifically, the 2004 law creates an evidentiary presumption that certain statements, if not electronically recorded, are involuntary. This presumption would apply regardless of the reason the statement was not recorded -- whether due to equipment failure, inadvertent operator error, etc. The statute further provides that this presumption can be overcome only if the prosecution proves, by clear and convincing evidence, that the statement was, in fact, voluntarily given. This is an unreasonable burden that has the potential to undermine criminal prosecutions and further victimize crime victims, their families and communities for circumstances that are largely beyond anyone’s control.
We believe that it is a judge who should ultimately decide – and always has decided – whether a confession or defendant statement is to be allowed at trial. The existing statute unnecessarily restricts that judicial discretion, while creating an unreasonably high evidentiary hurdle for prosecutors to overcome. Law enforcement, prosecutors, victims and the community should not be penalized simply because a recording device broke in the middle of an interrogation.
The “Electronic Recording Procedures and Penalties Act of 2005” removes this provision from the 2004 law, and replaces it with one that would instead penalize individual MPD members who knowingly and willfully violate the law on electronic recordings. As I mentioned at the beginning of my statement, our Department supports the overarching policy of recording custodial interrogations, and we will not tolerate members who knowingly violate the law in this area. In fact, General Order 304.16 specifies that members who knowingly violate the law or the Order shall be subject to administrative sanctions ranging from suspension to termination. Holding these individuals accountable for clear and blatant violations of the law seems to make a lot more sense than penalizing victims and communities for inadvertent police errors or circumstances beyond our control, as the current law does.
In closing, let me repeat that electronic recording of custodial interrogations is good public policy and sound police practice. It is not weakening our Department’s ability to conduct criminal investigations, and it is providing important protections to both police personnel and criminal suspects. The MPD is committed to fully implementing DC law, as well as internal policies and procedures, in the most effective and efficient manner possible.
To support our efforts, however, we need one clear set of legal standards to follow. We believe that the proposal before the Committee improves upon existing law and provides the type of guidance we need to move forward in this area.
Thank you again. My staff and I would be happy to address any questions you may have.
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