New Proposal To Avoid Wrongful Convictions

Defense attorneys want the right to record witnesses without consent

Thursday, December 5, 2013

By Hamed Aleaziz
Daily Journal Staff Writer

Thanks to an exemption from certain state privacy laws, police and prosecutors are able to record witnesses’ statements without their knowledge or consent. People are less candid when they’re aware their words are being recorded, the reasoning goes, and having a statement on tape can prevent a witness from denying his or her earlier claims.

Defense attorneys currently don’t share the same privilege. Like any other civilians, they must inform individuals when their words are being recorded. But with recently drafted legislation, a team from Loyola Law School’s Project for the Innocent hopes to change that.

Brentford Ferreira, a former Los Angeles County prosecutor, and professor and project head Laurie Levenson recently penned language for a bill that would provide defense attorneys and their investigators with the ability to secretly record conversations with witnesses in criminal cases. The idea is that surreptitiously recording witnesses could help defense attorneys recognize and prove that a witness has given conflicting testimony. That could pave the way for defendants to prove their innocence or help wrongfully incarcerated defendants clear their names.

“Faulty eyewitness identifications result in the convictions of innocent people,” the authors note in the would-be bill’s statement of purpose. “Witnesses often recant their previous identifications.”

Ferreira and a group of Loyola law students hope to convince a lawmaker to introduce the draft bill in next year’s legislative session.

As currently written, the proposal would prevent the recording of an individual who requests notice and withholds consent. Aside from that exception, however, the draft legislation insulates criminal defense attorneys and investigators from state Penal Code restrictions that ban surreptitious recording of witnesses.

“The proposed law would create an exception to the prohibition so it becomes legal again,” said Gabriel J. Chin, a UC Davis School of Law professor.

“For defendants who are unjustly charged, being able to get verbatim statements of inconsistent witnesses is going to help them get charges dropped or get acquitted at trial,” he said.

In general, defense attorneys would use the tactic during interviews with certain witnesses after an arrest or indictment of their client. But San Francisco Public Defender Jeff Adachi, who supports the draft bill, said he’d avoid secretly recording conversations of every witness.

“If you’re interviewing a friendly witness, you don’t want them to become upset if they later learn that you recorded their conversation,” he said.

For other witnesses, such as those known to have made inconsistent statements in the past, a secret recording could be significant, he said. Defense investigators currently keep track of testimony through written statements. But recordings would be more persuasive in court to impeach witnesses who deny having given particular statements or, before trial, help convince prosecutors that an inmate’s innocence claim is true.

Under Ferreira’s proposal, attorneys could rely on audio or video recordings to complete the impeachment instead of calling the defense investigators to the stand.

“It would be seen as much more reliable and less easily discounted,” said Andrea Roth, a UC Berkeley School of Law professor and former public defender.

Ferreira, who worked on and off for the Los Angeles district attorney’s office for roughly 30 years, spent his final 10 years there as part of the office’s team of attorneys who respond to post-conviction innocence claims.He believes prosecutors hearing post-conviction innocence claims would give more weight to a recorded conversation with a recanting witness than a written one. “It wouldn’t be just words on a page,” he said.

That could help expedite the path to freedom for wrongfully imprisoned inmates, he said. The faster prosecutors believe a prisoner’s claim of innocence, the faster he or she can secure release.

Some prosecutors and criminal justice experts, however, question the expansion of surreptitious recording due to its potential impact on individuals’ privacy rights.

The fact that defense attorneys have a duty to defend their client, Contra Costa County prosecutor Harold Jewett said, simply isn’t “sufficient justification for an exception to these privacy protections.”

Levenson at Loyola, however, countered that the defense should have the same abilities as the prosecution when it comes to questioning witnesses.

“If law enforcement’s taping is focusing on ongoing criminal activity, then it might make some sense as to why they have additional investigative powers,” she said. “However, if all they are doing is secretly taking witness statements, then it is unclear why they should have a tool that the defense does not have. Both sides should want to get the true testimony of the witness.”

Concerns over privacy could force lawmakers into a difficult balancing act.

“It seems to me the questions are whether the additional intrusions into privacy are justified by the gains that would come from leveling the playing field,” said David Sklansky, a professor at UC Berkeley School of Law.

The idea has already gained some backing in the capital. Sacramento-based California Attorneys for Criminal Justice, a group that represents private criminal defense lawyers in the state, said it supports the concept.

“The proposal acknowledges a real problem in our criminal justice system – sometimes prosecutors go after the wrong person or rely on bad facts,” said Ignacio Hernandez, the group’s lobbyist, via email. “This bill idea could help prevent wrongful prosecutions due to witnesses who withhold the truth.”