FBI Joins The 20th Century, Will Begin Using Recording Equipment During Custodial Interviews

(Mis)Uses of Technology

from the already-in-progress... dept

No, that’s not a typo. The FBI has finally reached the 20th century when it comes to advancements in recording technology. No longer will records of custodial questionings be limited to agents’ handwritten notes — the sort of thing that’s impossible to independently verify and prone to “spin” by the transcriptionist. (via emptywheel)

There was no news release or news conference to announce the radical shift. But a DOJ memorandum obtained by The Arizona Republic spells out the changes that will begin July 11.

“This policy establishes a presumption that the Federal Bureau of Investigation (FBI), the Drug Enforcement Administration (DEA), the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and the United States Marshals Service (USMS) will electronically record statements made by individuals in their custody,” says the memo from James M. Cole, deputy attorney general, to all federal prosecutors and criminal chiefs.

“This policy also encourages agents and prosecutors to consider electronic recording in investigative or other circumstances where the presumption does not apply,” such as in the questioning of witnesses.

As you can see, there’s still a loophole for these agencies to exploit. They’ll be “encouraged” to record non-custodial questioning, but there’s no direct stipulation requiring it. On the plus side, this is a huge improvement over the previous method: handwritten notes taken by agents on a “302 form.” Not only were the notes highly subjective, but they also tended to be destroyed as soon as possible. Others weren’t even transcriptions of interviews, but were written after the fact using nothing more than an agent’s power of recollection. This has obviously led to abuse, as well as to plain old carelessness.

The failure to maintain electronic records of interrogations also created gaps in FBI intelligence gathering, especially involving terrorism cases. Instead of maintaining an accurate and largely indisputable record, agents on the witness stand for decades have relied on their memories, interpretations and handwritten notes transcribed into a form known as the 302.

Critics have said that flawed system results in botched investigations, lost evidence, unprofessional conduct and false convictions. They noted that the historic DOJ practice was problematic in trials of suspects like terrorist Osama bin Laden, TV star Martha Stewart and Oklahoma City bombing defendant Terry Nichols, along with thousands of defendants with no public exposure.

Of course, those who prefer the old, unaccountable way are still raising objections, despite the fact that recording custodial interviews has been common practice in less-cutting edge local law enforcement agencies for decades.

Nancy Savage, executive director at the Society of Former Special Agents of the FBI, said there’s probably no unilateral view from field agents. Although tape recorders sometimes intimidate suspects, she added, the change was probably inevitable because juries have come to expect audio and video evidence.

The FBI’s other rationale for pen-and-paper-only has been that jurors might be persuaded to acquit someone if they were made aware of tactics used by agents to secure a confession.

In 2006, the New York Times uncovered another explanation for the DOJ policy, spelled out in an internal FBI memorandum. Basically, it argued that jurors might be offended, possibly to the point of acquitting defendants, if they observed the deceit and psychological trickery legally employed by agents to obtain information and confessions.

This would seem to be a problem the FBI needs to solve, rather than just expect the public to go along with its your-word-against-ours policy. The fact that the DOJ’s several agencies need to be pushed into providing something more verifiable than an agent’s slanted recollection of an interview is a sad statement on the mentality of those employed by these agencies. For them, it’s been a long, easy ride, where any abuse under the old system could be mitigated by the agencies’ “fighting the good fight” excuse. After all, they’re chasing down drug dealers and terrorists. Who are we to question their methods?

Well, we’re the public and we’ve been expecting accountability from our government agencies for a long time. And they’ve been in no hurry to provide it. By “boldly” pushing the ATF, DEA and FBI into the last half of the 20th century, Deputy AG James Cole is finally nudging his charges in the right direction. To be sure, recording devices can be tampered with, misplaced or simply never activated, but it’s still a huge step forward from the agencies’ long-held preference for pen, paper and subjective portrayals.

Filed Under: fbi, interrogations, interviews, law enforcement, recording