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Abstract
Drawing on empirical research into audio-visually recorded interrogation in New South Wales, this article comments on the implications for criminal justice in jurisdictions facing problems and controversies in the questioning of suspects. It considers whether the various benefits and harms that were predicted to flow from audio-visual recording have eventuated, focusing on two issues: the interpretation of images and unrecorded questioning. Its conclusion is that audio-visual recording offers significant benefits to criminal justice, but is no panacea (and can even be counterproductive if treated as such). Audio-visual recording has to be part of a comprehensive regulatory regime; this article concludes by arguing for a renewed commitment to the legal regulation of policing.
Notes
1. Miranda vs. Arizona, 384 US 436 (1966).
2. Police and Criminal Evidence Act 1984.
3. Governor Rod Blagojevich, quoted in “Ill. Law 1st to order taping murder confessions”, USA Today, 18 July 2001, p. 3A. See also “Illinois will require taping of homicide interrogations”, New York Times, 17 July 2003. Taping is required in Alaska and Minnesota as a result of court rulings.
4. An earlier version of this paper was presented at the International Conference on Police Interviewing, École Nationale de Police du Québec, 9–11 February 2004.
5. A private lawyer was present in just two of the 262 interviews in our samples of recorded interviews (see below for further details). In four others, there was a representative of an Aboriginal legal organization: such organizations must be informed when an Aboriginal person is detained. For details, see Dixon & Travis 2006.
7. An admission made in the course of official questioning relating to an indictable offence (other than one that can be dealt with summarily without the consent of the accused person) is not admissible unless a tape recording of the interview is available to the court (unless the prosecution establishes that there was a reasonable excuse as to why a recording could not be made): Criminal Procedure Act 1986, s.108; this section was introduced as Crimes Act 1900, s.424A as part of the reform of the law of evidence in 1995.
8. The main exception is the bizarre case of Evan Pederick. Even here, most attention has been on other aspects of the case and the authorities continue to treat Pederick's confession as genuine (Anderson, 1992).
9. Support by an Australian Research Council/ NSW Police Linkage Grant is gratefully acknowledged. The success of the project depended on Gail Travis, my excellent research assistant. For details, see Dixon & Travis 2006.
10. The issue of preparatory or rehearsal questioning has attracted considerable attention in England. With exception of Irving and McKenzie (1989), “all of the major post-PACE studies have found substantial evidence that informal interactions have a significant role in police investigations” (Leng, 1994: 174).
11. The police force was experimenting with the use of audio-visual recording. In England and Wales, a system based on audio-taping was introduced in the later 1980s: as noted above, there has been sporadic interest in videotaping and its use was recently re-evaluated (Newburn et al., 2004).
12. The officers “appeared to forget” that they were being recorded (McConville, 1992a: 533)
13. It should also be made clear that we are not claiming that NSW officers engage in the practices reported by McConville: our point is that research has not been conducted on investigative practice before ERISP in NSW, and we make no claim to knowledge about the full process.
14. Kelly vs. R., [2004] HCA 12. By contrast, the High Court took a much more realistic view of police practices in Nicholls & Coates vs. R [2005] HCA 1.
15. See Kelly vs. R., [2004] HCA 12.
16. Unreported, Leeds Crown Court, 1 November 1993; see Dixon (1997: 172–176); Gudjonsson (2003: 96–106).
17. [1993] 97 Cr App R 99; Sekar (1997); Gudjonsson (2003: 515–516).