Harvey Silverglate of Three Felonies A Day fame has an op-ed in the Boston Globe to remind us of why the FBI does not subscribe to the meme of without pics, it didn’t happen. This will come as a shock to many, but the FBI has a policy, an actual written policy , forbidding agents from recording interrogations.
FBI agents always interview in pairs. One agent asks the questions, while the other writes up what is called a “form 302 report” based on his notes. The 302 report, which the interviewee does not normally see, becomes the official record of the exchange; any interviewee who contests its accuracy risks prosecution for lying to a federal official, a felony. And here is the key problem that throws the accuracy of all such statements and reports into doubt: FBI agents almost never electronically record their interrogations; to do so would be against written policy.The 2006 memo is an update to an earlier policy from the ’90’s, when electronic recording devices weren’t as readily available as they are today. They were, of course, still more than sufficiently available, but the lie made enough sense to outsiders that they could pass it off as plausible.The memo in part attempts to defend the policy as logistically necessary, but given that virtually every cellphone today has sound recording capabilities, any “inconvenience” or “non-availability” excuse for not recording seems laughably weak. The more honest — and more terrifying — justification for non-recording given in the memo reads as follows: “. . . perfectly lawful and acceptable interviewing techniques do not always come across in recorded fashion to lay persons as proper means of obtaining information from defendants. Initial resistance may be interpreted as involuntariness and misleading a defendant as to the quality of the evidence against him may appear to be unfair deceit.” Translated from bureaucratese: When viewed in the light of day, recorded witness statements could appear to a reasonable jury of laypersons to have been coercively or misleadingly obtained.
But the FBI leaves out the even more potent criticism of its practice — that such interview tactics seem virtually geared toward establishing as fact what the FBI wanted to hear from the witness. Frightened and confused interviewees, who, if they deny they said what any 302 report claims they uttered, can then be indicted for making false statements. The FBI is thus able to put words into a witness or suspect’s mouth and coerce him to adopt the FBI’s version as his own. The FBI thus establishes the official version of what a witness said, and the pressure on the witness to adhere to the 302 version is enormous. Any deviation, after all, raises the question: “Were you lying during your FBI interview, or are you lying now?”
This is where an appreciation of what happens is a bit more difficult to appreciate. We can picture, for example, an old time steno sitting there, taking copious notes to precisely record what’s being said, but that’s not the case. There are two agents, one doing the talking and one doing the writing. The one doing the writing puts on paper the things he decides he wants to put on paper. It goes something like this:
Q: We found files on your computer showing that you went to a website with instructions on how to make a bomb, so we know you did it. When did you first go to the bomb website?
A: I surf the web constantly and go through, like, a million pages. I have no idea what pages I searched or when. How could I possibly know?
Notated in 302: D cannot recall when he first went to bomb website. Went “constantly.”
See what he did there? Funny, right? Unless you happen to be the person being interrogated, in which case there’s nothing funny about it. I have a permanent bruise just below the elbow where clients squeeze while whispering in my ear, “that’s a lie, that’s not what I said.” Ah, reality versus truth. It may not be what really happened, but whatever is written on a 302 is truth in a United States Courthouse.
And if it’s bad in more pedestrian cases, it’s worse where the subject matter is sophisticated or industry jargon is involved. The substance flies over the agent’s head, so that the only thing understood, and written in permanent ink, is “guilty, guilty, guilty!” There is no nuance on a 302.
A recording can be subject to dispute. A 302 is not. The defendant is placed in the untenable position of engaging in the proverbial “pissing match” with the agent over what words were spoken, and the spray stings. Whether it’s a 1001 violation or obstruction of justice enhancement, there is a price to be paid for dispute. Sometimes it’s worth the risk, but only because the option of letting it slide is so onerous that there is no choice.
As Harvey concludes, the FBI’s choice of not recording interrogations shouldn’t entitle them to a presumption of credibility. Indeed, it flies against everything that we know to be true, that they can easily record and thereby provide the court, defense and jury with an indisputable record of what was said.
And yet, they don’t and it doesn’t seem to bother much of anybody. Well, except the defendant. But then, it’s not like he matters, since he’s “guilty, guilty, guilty!” After all, the 302 says so.
H/T Radley Balko
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One of the most striking comments from readers at the Globe was the man who would like Silverglate as his defense attorney, if needed–but he expects never to need him because he fully supports the FBI doing what it has to do to convict.
Clearly, he has not read “Three Felonies a Day,” or he would know anyone, any time can be a suspect and that almost surely turns the suspect into a defendant.
I’m not sure I would characterize such a comment as striking. Obvious, perhaps. Maybe pedestrian. But not striking, unless it was meant in an irrelevant sort of way.
It in indeed shocking, and abhorrent. This practice combined with the crime of “lying to a federal agent” makes talking to the FBI a seriously foolish thing to do.
If only it would really backfire on them like as it should. Alas…
Not a whole lot scares me, but this does.
As well it should. It scares me too.