PROVIDENCE — State Supreme Court Justices Francis X. Flaherty and William P. Robinson III have a message: It’s time for Rhode Islanders to require police to electronically record their questioning of suspects.
Flaherty and Robinson issued a strongly worded ruling Tuesday, calling on Rhode Island to join 25 other states and the District of Columbia in requiring, or at least encouraging, police to record custodial interrogations.
“I take this opportunity to restate my unyielding belief that this state should join the majority of our sister states that either require custodial interrogations to be recorded or that inform factfinders of the failure to do so,” Flaherty wrote. “With the stakes as high as they are, there remains no cogent reason for such a a shortcoming.”
Flaherty’s views, which Robinson endorsed, came at the tail end of ruling upholding a Providence man’s conviction for first-degree child molestation.
The high court upheld Superior Court Judge Netti C. Vogel’s refusal to suppress the audio recording of Hasim Munir’s May 2015 questioning by Providence Detectives Christopher Rotella and Joseph Hanley. Munir argued that the statements should be inadmissible at trial because the detectives violated his rights under the Fourth and Fourteenth Amendments during the course of the interview.
The recording revealed, according to the court, that the detectives frequently swore, sometimes raised their voices, and subjected Munir, 39, of Providence, to a “barrage of questions” as he remained handcuffed to the wall. The police indicated, too, that his DNA might be found on the victim’s body, even though no DNA was found at the scene.
In refusing to suppress the audio recording, Vogel observed, according to the ruling, that she was “totally unimpressed by the police tactics in this case,” but that police are permitted under the law to use vulgarity, deception, robust questioning, and to make a suspect “uncomfortable.” She concluded that although she found the motion to suppress “troubling,” the state had provided clear and convincing evidence that Munir’s statement was knowing and voluntary and not the product of threats or coercion.
″[W]e are certainly not favorably impressed by the tone of the interrogation or some of the tactics employed by the detectives. ... Nevertheless, we too reach the same conclusion as the trial justice i.e., that Mr. Munir’s statements were voluntary,” Robinson wrote for the Supreme Court.
The court found that Munir did not unequivocally invoke his right to remain silent during the course of the interview.
In his concurring decision, Flaherty lamented that Vogel and the jury were deprived of the ability to assess the facial expressions and body language of those involved in the questioning because the detectives failed to capture it on video. Flaherty noted that Rotella recorded the interrogation with his own device, and could have propped his smartphone up to videotape it as well.
“I find it bewildering that depositions in civil cases are recorded with increasing frequency, but an interrogation with a defendant’s liberty on the line need not be,” Flaherty said.
Flaherty said that, in the absence of a video recording, a defendant should be entitled to an instruction informing the jury that it can consider the police department’s failure to videotape a suspect’s question when it assesses whether the statements was voluntary.
Vogel sentenced Munir, 39, of Providence, to serve 35 years, with 23 years, in prison.
A task force created by state lawmakers to study police recommended in 2012 to then-Gov. Lincoln Chafee, Chief Justice Paul A. Suttell and other state leaders that police departments statewide adopt policies requiring officers to videotape interviews with suspects of crimes that could land them in jail for life. Several departments, including the state police and Woonsocket, already have such policies in place.
Rhode Island’s accreditation standards direct all police departments to put policies in place mandating that officers videotape the entire interrogation of suspects accused of capital crimes and facing life in prison.