In People v. Hammons (12/30/09) the Fourth Department held that the trial court "did not abuse its discretion in refusing to give an adverse inference charge concerning the failure of the police to record defendant's interrogation. It is well settled that the police have no obligation to record an interrogation (see People v Childres, 60 AD3d 1278, 1279, lv denied 12 NY3d 913), and that the failure to record a defendant's interrogation electronically does not constitute a denial of due process (see People v Lomack, 63 AD3d 1658, lv denied 13 NY3d 798; People v Malave, 52 AD3d 1313, 1315, lv denied 11 NY3d 790)."

Unless read carefully, the court's reasoning could be misleading. Neither police violation of an established obligation nor a denial of due process are prerequisites for a proper adverse inference charge - those criteria apply to the abuse of discretion standard applicable to the appellate court's consideration of the lower court's refusal to give such an instruction; i.e., if the police refusal to record defendant's interrogation violated defendant's due process rights, it would have been an abuse of discretion for the trial court to refuse to give an adverse inference instruction.

This analysis means a couple things: (1) the Appellate Division won't be doing anything to advance the recording of interrogations or confessions, and (2) application of the abuse of discretion standard facilitates an overly deferential approach to law enforcement procedures by insuring that juries will never be instructed that they may draw an adverse inference from the police election to deprive the fact finder of what would have constituted the best evidence of the circumstances and content of defendant's interrogation and confession.

Keep in mind that with or without an adverse inference instruction, a defendant can still comment on the police election not to record a defendant's interrogation and confession (see, People v. Harrison, 35 A.D.3d 52 [1st Dept. 2006] lv. denied 8 N.Y.3d 923 [2007]; People v. Wright, 41 N.Y.2d 172 [1976]).

Some further resources on this issue include:

● Police Experiences with Recording Custodial Interrogations, Thomas P. Sullivan, Northwestern University School of Law (Summer 2004).

● Practices of U.S. police departments regarding recording interrogations, Sullivan and Thomas (2003).

● Eye on Interrogations: How Videotaping Serves the Cause of Justice, Hennepin County Attorney website (2002).

● Report of the Governor’s Commission on Capital Punishment (Illinois, 2002).

● True Confessions, Margaret Talbot, http://www.truthinjustice.org/confessions.htm (2004).

● Statement of the District of Columbia Association of Criminal Defense Lawyers in Support of Bill 14-3 “The Miranda Codification Act of 2001”

There can be no legitimate reason not to record interrogations and confessions, nor have police or prosecutors ever suggested one. As Professor Yale Kamisar asks “Why should we assume that the police remember everything that happened?” (Illinois Will Require Taping of Homicide Investigations, New York Times, 7/16/03). In Illinois, Kankakee County State’s Attorney Edward Smith finds that a courtroom videotape is helpful given the popularity of home video cameras: “We feel that a common question in a juror’s mind might be: Why didn’t they tape it, if it’s so important?” (Cops Urged to Tape Their Interrogations, Chicago Tribune, 5/30/03).

The inescapable conclusion that flows from the refusal to record interrogations and confessions is that the interrogators have intentionally elected to deprive the fact-finder of the best evidence – a contemporaneous, verbatim recording of the suspect’s statements – in favor of a “sum and substance,” “I can’t recall” malleable recollection of events, impaired by imperfect memories and subject to the interrogators’ prism of prosecutorial bias. In short, some cops continue to refuse to resist recording interrogations because it eliminates the opportunity to lie later on about what took place during the interrogation, and what the defendant said in his confession. Slowly, courts and legislatures are beginning to agree.

The Massachusetts Supreme Court has ruled that when “interrogating officers have chosen not to preserve an accurate and complete recording of the interrogation, that fact alone justifies skepticism of the officers’ version of events, above and beyond the customary bases for impeachment of such testimony,” and ruled that juries must be so instructed by trial courts (Commonwealth v. DiGiambattista, 442 Mass. 423 [2004] [emphasis added]).

This level of professionalism and accuracy – rather than the “sum and substance” guesstimation that occurs in the absence of recording – is easily attainable, and should be, and is becoming, the expected, rather than the resisted standard by courts, legislatures, police agencies, and, perhaps most importantly, by juries. Evidence in a murder case is at least as important, and merits commemoration with at least the same level of accuracy and reliability as we routinely use to preserve our children's Christmas pageants and birthday parties.