Primacy of Paratextual Confessions

The history of police interrogations and confessions is a tortured tale of "swearing contests" between the state and the criminally accused. Competing oral accounts of interrogations are presented to establish or deny the knowing and voluntary nature of a confession. In these exchanges, of course, the state often relies heavily on the defendant's written and signed confession. Mindful of the intractable character of these verbal contests, the author of a noted police investigation manual argued more than three decades ago that "[i]mportant interrogations and confessions should be [electronically] recorded." ¹⁷⁸ Likewise, Professor Yale Kamisar, the leading scholar in this field, has long maintained that police interrogations of isolated suspects must be audio­ and video­recorded when feasible. ¹⁷⁹ Currently, practice is finally catching up with theory: "Today, the commonest application of videotape in criminal cases is to record confessions." ¹⁸⁰

Paratexts, when fairly and accurately prepared, can be so critical to proving the existence of a knowing and voluntary confession that the government arguably has a duty to make paratexts of confessions whenever reasonably possible. In the contest between disputed oral testimony and the written confession, the electronically recorded confession emerges as the candidate for the best evidence. ¹⁸¹ Recognizing this, the Alaska Supreme Court has ruled that its state constitution requires the police to record electronically any police interrogation conducted in a place of detention. ¹⁸² The Court also found that any confession obtained without such a recording violates a suspect's right to due process and is inadmissible in a criminal prosecution. ¹⁸³ Writing for a unanimous court, Justice Edmond Burke declared: "[W]e are convinced that recording, in such circumstances, is now a reasonable and necessary safeguard, essential to the adequate protection of the accused's right to counsel, his right against self­incrimination and, ultimately, his right to a fair trial." ¹⁸⁴ Here, the future lies with Alaska.