Published on: Thursday, September 08, 2011

By: Tom Ryan

There are a number of television shows in the “true crime” vein that show videos of suspects being chased, arrested, and/or interrogated by the police. This may lead to the question of whether the person charged has a right even to be told that their statements are being video and audio recorded. While remembering Warner Wolf’s former catchphrase “let’s go to the videotape” clearly dates me, this very question was answered just this week by the Maryland Court of Special Appeals in a case called Michael Donaldson, Jr. v. State.

Mr. Donaldson was charged with first degree murder in the execution style killing of a good friend, allegedly because he learned the friend had a sexual relationship with Donaldson’s girlfriend. The State charged that Donaldson recruited two other friends to commit the murder. He then lured his friend under false pretenses into a dark alley, where his accomplice appeared and fired six shots at the victim, who later died of his wounds.

The police conducted three interviews of Donaldson. In the first, he was only a witness and not a suspect, but gave conflicting stories of his whereabouts the night of the murder. The girlfriend then gave information implicating Donaldson in the murder, and when he came in for a second interview he was read his Miranda rights, including the right not to say anything or to have an attorney. Donaldson waived his rights and agreed to an interview. The third interview occurred after he was arrested for the murder, in which the detective confronted him with the evidence. A shouting match ensued in which Donaldson loudly and with profanity denied involvement in the crime.

All three interviews were video and audio taped, without Donaldson’s knowledge or consent. At trial, over objection the judge allowed the videos to be played to the jury. It convicted him of first degree murder and related crimes, and he was sentenced to life without parole. On appeal he challenged only the admission in evidence of the video interviews, claiming that his demeanor and appearance on film was prejudicial to his case.

The appellate court upheld the conviction. It noted that the defendant admitted he was read and waived his rights, and even that the content of his statements was admissible. The Court found that under the law, the police were not required to advise the suspect that the interview was being recorded, nor get his consent. It noted that if the police had lied to him about recordings being made, or had they said they were off the record, that would raise different issues about whether he knowingly waived his rights.

Clearly a picture (or audio recording) can be worth a thousand words, and in this day and age those involved in interactions with the police should expect that the video may come back to haunt them.

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Thomas Patrick Ryan is a partner in the Rockville law firm of McCarthy Wilson, which specializes in civil litigation.