Marissa Bluestine and Brandon L. Garrett
William Kelly gave a written confession statement to police and pleaded guilty to murder of a woman whose body was found in 1990 in a landfill near Dauphin County. The case seemed straightforward, and it was closed. However, Kelly had an IQ of 69 and suffered from manic depression, alcoholism, and a history of blackouts.
He only agreed to plead guilty when the trial judge concluded that the confession statement would be admitted at trial. There was no recording of the police interrogation.
Three years later, Kelly was exonerated when another person facing trial for several other murders led investigators to the landfill where the victim’s body was found, along with the remains of two other people. DNA tests identified him as the culprit. Kelly had his conviction reversed. He is just one of 15 Pennsylvanians exonerated who falsely confessed.
Nationwide, recording police interrogations is an emerging best practice that creates a record of what happens behind the closed doors of an interrogation room. Too often, police engage in coercive conduct that can lead innocent people to falsely confess to crimes they did not commit. 30 states, along with Washington, D.C. and the federal government now require police to record custodial investigations.
This simple policy has the support of the American Bar Association, the American Law Institute, the National District Attorney’s Association, the International Association of Chiefs of Police, and many others. Pennsylvania, however, remains an outlier.
A new study jointly conducted by Penn Carey Law’s Quattrone Center and Duke Law’s Wilson Center found that out of 1,000 law enforcement agencies across the state, only 217 had written policies on recording interrogations. Every police department should have clear written rules on how to properly interrogate those in custody, and these results show an overhaul of policy and practice in Pennsylvania is necessary.
The need in Pennsylvania is great, but there has been little movement toward making this necessary improvement. Two bills regarding electronic recording of interrogations were introduced in the 2021-2022 session but failed to pass.
First, PA House Bill 2005 would require law enforcement agencies to make a complete and contemporaneous electronic recording of each custodial interrogation in the investigation of all offenses.
Second, PA Senate Bill 328 would require a complete and contemporaneous electronic recording of each custodial interrogation for certain offenses. Neither bill advanced during the last session and it’s imperative they be reintroduced as the new term begins this month.
In addition to preventing wrongful convictions due to false confessions, legislation requiring recording can powerfully benefit law enforcement. Retired Washington, D.C. Police Detective James L. Trainum, put it this way: “Law enforcement agencies have no reasonable justification not to videotape, especially since the practice not only helps to protect the innocent, but also prevents good confessions from being challenged in court.”
The needs in Pennsylvania run deeper. We found that many agencies lack custodial interrogation policies entirely or have done no more than set out the Miranda warnings required by the U.S. Constitution.
Confessions are important. Everyone assumes that only a guilty person would confess, but police can place enormous pressure on people in the interrogation room.
Even innocent people eventually give up hope and confess. Juveniles and people with behavioral health needs, like William Kelly, give in especially quickly.
Sound policy, to make sure police conduct these interrogations professionally, is crucial. Videotaping is an ideal start, but a focus on best practices to avoid undue coercion and false confessions would go a long way to improve the quality of justice in Pennsylvania.
Marissa Bluestine is an Assistant Director of the Quattrone Center for the Fair Administration of Justice at the University of Pennsylvania Carey Law School.
Brandon Garrett is the L. Neil Williams Professor of Law, at Duke University School of Law and the faculty director of the Wilson Center for Science and Justice at Duke Law.