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Taslitz Social Science Memorandum 1 (October 8, 2008)

handle is hein.nccusl/nccpub01026 and id is 1 raw text is: MEMORANDUM TO: Drafting Committee on Electronic Recordation of Custodial Interrogations Members, Advisors, and Observers FROM: Andrew E. Taslitz, Reporter DATE: October 8, 2008 RE: Social Science Memorandum on the Impact of Cautionary Jury Instructions Concerning the Unexcused Failure to Record the Entire Custodial Interrogation Process I. Introduction This memorandum will briefly review the relevant social science concerning the likelihood that cautionary jury instructions can improve jurors' ability to determine the credibility, voluntariness, accuracy, and weight of a confession where there was an unexcused police failure to record the entire interrogation process. This memorandum concludes that jury instructions are unlikely effectively to remedy the harm to the accuracy of the fact-finding process stemming from the unexcused failure to record. Instead, jurors are likely to give even false and involuntary confessions substantial weight, creating a grave risk of convicting the innocent. Although I know of no published studies directly addressing the impact on jurors of cautioning them that the police were obligated to record, inexcusably failed to do so, and, therefore, deprived the jury of important information, such as tone of voice and demeanor, in determining the truthfulness and voluntariness of the confession or addressing some similar cautionary instruction for failing to record, there is ample empirical data in three other relevant, informative areas: (1) the effectiveness of cautionary instructions in general; (2) the effectiveness of cautionary instructions in an

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