Huge Shift: FBI to Record Most Custodial Interrogations

Some very welcome news: The FBI's longstanding policy against recording interrogations of suspects will change in July.

Here is the May 12, 2014 memo sent to federal prosecutors and DOJ agencies by Deputy AG James Cole explaining the policy change. [More...]

Why is the failure to record so objectionable? The Arizona Central article lists several reasons. Recording interrogations is beneficial to both the accused and law enforcement. It provides protection against police misconduct, coerced false confessions and Miranda violations, while also protecting law enforcement against false allegations. It can also help investigators by allowing them to go back later and review a suspect's statements for inconsistencies or details that didn't seem important at the time. Recordings provide an "instant replay" of what was done and said, enabling court rulings to be based on fact rather than credi. Judges can render decisions based on facts, rather than having to make a credibility determination of which competing version to believe.

Here is how one brief from 2010 I recently came across describes the problem with not recording interviews:

"In an age in which electronics have reduced both the size and cost of recording devices, it is inconceivable that FBI agents would examine critical witnesses on vital subjects without making any effort to obtain an actual recording of what was said. Indeed the only purpose for not recording interviews with witnesses like [name deleted] would seem to be to assure that the only record of what was stated comes from the Agents. The problem with that is not that Agents are dishonest or prone to making things up but that at that stage of the proceeding they are hardly neutral. They believe criminal conduct has occurred and they are attempting to show that the defendant with whom they are speaking is criminally culpable.

They have a bias. The raw notes of [an] interview do not purport to be a verbatim transcript of what is said, but rather those things which the Agent considers important. They generally do not record the questions asked or the context in which they are given. Moreover, they do not record the tone or the pacing of the witness’s remarks, all of which are critical to an understanding of whether the witness was making a false statement or simply reflecting an inability to recall that which was said.

The FBI 302 is used to allow Agents to refresh their recollection of what transpired and accordingly actually becomes a foundation for part of the evidence in the case, whether it is actually admitted or not. The Agent, if challenged on his recollection of events that occurred years earlier, can always say that he prepared a report of interview within a few days of the interview occurring and that he was thus able to refresh his recollection about what transpired by reviewing such a document. By conducting an interview with a person who they reasonably perceive as being a potential target and not recording those statements, the Agents have effectively destroyed evidence. After all, the “evidence” of guilt or innocence in regard to this charge is what in fact [the] defendant actually said at that time. That will never be known because the Agent took no steps to preserve the actual words. Moreover, the only record provided is the final product of a process, an edited version of the original notes.

In the 21st Century, it is time for the Bureau to accept the reality that its process of one-sided gathering of witness statements is outdated, inappropriate and a violation of defendant’s Constitutional rights. The process destroys all defendants’ rights to due process of law, guaranteed under the Fifth and Sixth Amendments of the United States Constitution.

The new policy applies to the FBI, DEA and ATF, BOP and the U.S. Marshals Service. The memo says there will be a presumption in favor of recording custodial interviews. It also encourages agents and prosecutors to record non-custodial interrogations. There are some exceptions, and the memo notes that it is internal guidance and not enforceable by others. DOJ will be providing training to prosecutors on the new policy.

Again, this is a very welcome change and one that's long overdue. Also see BMaz's post at Empty Wheel.

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    Be careful what you wish for... (5.00 / 1) (#2)
    by thomas rogan on Thu May 22, 2014 at 07:25:20 PM EST
    Now it will be impossible for defense attorneys to say that the jury should doubt the confession because "it didn't happen", "was coerced" or "was misconstrued".  It will be much harder for defendants to backtrack on a story as well.  And can you imagine a jury being presented with a videotape (instead of a transcript) of Amanda Knox incriminating Patrick Lumumba in the Meridith Kercher murder?  A jury wouldn't trust anything she said if they saw her sincerely blaming Lumumba, who had nothing to do with it.

    Remember the guy... (5.00 / 2) (#3)
    by unitron on Fri May 23, 2014 at 01:21:51 AM EST
    ...connected somehow with the Boston Bombers who was being interviewed in his apartment and all of a sudden they had to shoot him dead because of (see what week it is to determine which story to use)?

    Audio and video of that should have either exonerated the shooter(s) if they deserved exoneration, or revealed that they didn't, and either way we'd know for sure.

    There will be a presumption (none / 0) (#1)
    by Militarytracy on Thu May 22, 2014 at 03:45:16 PM EST
    In favor of recording?

    Because of Talkleft, I came to decide that any questions any of the above agencies would ever need to ask me could only happen with my attorney present and recorded.

    It is a shift, but this presumption thing?  And too many past abuses on their part so, any questions any of the above agencies could ever desire or need to ask me is going to have to happen in the presence of my attorney while being recorded by self.  They can bring their own recording device too.  I'm fine with two copies :). It could really suck if they lost their copy :)

    This is an important improvement (5.00 / 4) (#4)
    by Peter G on Sat May 24, 2014 at 03:46:05 PM EST
    so far as custodial interrogation is concerned.  But the failure to extend it to non-custodial "interviews" -- where recording is merely to be "encouraged" -- falls far short of real reform.  In federal cases, it is in those unrecorded, non-custodial "interviews," as later recounted by the agents in court, without fear of contradiction, that suspects are turned into convicts based on selective interpretations of their unwary responses to surprise, tricky questioning.

    This is why (5.00 / 4) (#5)
    by Zorba on Sat May 24, 2014 at 05:14:02 PM EST
    everyone should have a lawyer present before even giving the Feds the time of day.