Try telling someone that the FBI does not, as a matter of policy, record interrogations. They’re incredulous. After all, the technology to record sound, not to mention images, has been around a long time, so why would the FBI actively refuse to use it? Are they crazy?
Crazy like a fox, to be trite. Without a recording, the only means by which a jury learns of an interrogation is through the lips of an agent. A rambling, incoherent, ambiguous, vague hour-long interrogation is magically transformed into a cogent and concise confession. Bad questions leading to ambiguous answers are filtered through the myopic interests of law enforcement so that they mean exactly what the agent wants them to mean.
Nuance is lost. Details omitted. Sometimes, a statement was never said at all. Sometimes, it was said, but differently, with one meaning intended and another received. No matter, the only way to clear up the misconception is for the defendant to testify, shifting the risk to the defense. Even so, juries believe well-groomed, sincere, articulate agents. Defendants have a reason to lie, but FBI agents would never do that. “Why would they?”, the prosecutor will argue, and the only real answer is because they do, sometimes.
As of May 12th, that’s changed, according to a report by AZ Central. An internal memo by Jim Cole, Deputy Attorney General, not only allows the FBI and other federal law enforcement agencies to record interrogations, but creates a presumption that all in-custody interrogations are to be recorded.
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 in the circumstances set forth below.
This policy also encourages agents and prosecutors to consider electronic recording in investigative or other circumstances where the presumption does not apply. The policy encourages agents and prosecutors to consult with each other in such circumstances.
While the policy notes exclusions (of course) and conditions, such as the availability of “suitable” recording devices (because almost every man, woman and child in this country doesn’t have a cellphone capable of digital recording at will), and creates no private right against the FBI for failure to record, this shift in policy is huge. No, monumental.
Not only has the FBI come into the 20th Century, but it has given the court, the jury and the defense the means by which the smallest degree of integrity is returned to custodial interrogations.
Historically, the response to the question of “is there a recording of this statement you say the defendant made?” was “FBI policy forbids the recording of interrogation.” You couldn’t blame the agent for complying with FBI policy, and as much as the jury might be shocked and disappointed to learn about this policy, they rarely held the government to account. After all, as much as a recording would help, the nice agent was still before them to explain in dulcet tones about the evil defendant’s confession.
That answer no longer flies. If there is no recording, it’s because an agent chose not to record, and he bears the brunt of responsibility for depriving the jury of the ability to see it, hear it, assess it, for themselves. And it opens a wealth of arguments to the defense should the recorded confession vary from the government’s claims.
The memo offers no explanation of why this change in policy. Perhaps someone believes it’s time for some integrity-creep in federal law enforcement methods. Perhaps someone figured out that juries won’t buy the “no recording policy” anymore, despite its resounding success for generations. But regardless of why, change has come.
The policy takes effect on July 11, 2014, in order to give the FBI time to train its agents to do what every 14-year-old in America does with banal expertise. But once in full force, this changes everything. It’s about time.
H/T Bmaz
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I have seen a couple of people, one from the ACLU, carp that the policy is not enough. Frankly, I’m not sure what they want. For the initial memo out of the blue, I found it to be tight and thorough, pretty close to as much as you could hope for out of DOJ. I am just stunned. I came close to getting a court to consider an injunction to mandate recording in D-AZ back in the 90s (and we did get a consent agreement out of the sheriff’s office out of the same series of cases), but DOJ leadership went apeshit. They have protected this for so long, and to the detriment of justice. Wow, yesterday was a good day.
Things could always be better (as in mandate that all interactions be recorded, a la body cams on agents), but without any clout to compel the feds to record at all, it’s still rather astounding that this happened. Of course, it’s also astounding the juries haven’t rejected agents’ testimony for years for the failure to record, but juries…
And I can’t tell you how meaningful your story from the Arizona in the 90’s is to me. It rocks my world.
Well it ain’t a mystery as to why…they killed a guy in an interrogation in Florida in the fallout from the Boston bombing. Bad PR.
I’m fairly certain that had nothing whatsoever to do with the decision.
Yeah, I agree, this had nothing to do with Todashev.
I was skeptical until I read Cole’s bio, and it seems he may be the real deal. In private practice from 1995-2010, representing mainly white-collar defendants, he’s seen first-hand the underhanded tactics employed by the government. He’s big on ethics and is former chairman of the American Bar Association’s White Collar Crime Committee. Finally someone is appointed to a position where they may affect great change. But since he’s an outsider, I wonder if his appointment and the changes he institutes will be met with disdain from FBI agents who have made a career of twisting facts to gain convictions. His tenure could be rife with resistance to any new policies.
You show an outsider’s misunderstanding of Cole’s background. He was a long-time AUSA, 13 years in the prosecution trenches, until he cashed out:
This is not criminal defense as you think. This is private-side prosecution, corporate investigations and compliance. Jim Cole is no outsider. Not at all.
The police desire to not have anything recorded is always surprising to me.
Minnesota started requiring interrogations be recorded, or they would not be admitted. (The Mn Supreme Court found that the defendant has a right to a recorded interrogation) Minnesota has also banned consent searches and dui checkpoints). The prosecutors and police went nuts, for while, then they realized that being able to play a confession to a jury was an amazingly powerful tool.
There is no reason for an *ahem* honest, law enforcement agency to not record everything.
I would like to take this moment to welcome the USA to the 20th century and state that it is with open arms that the rest of the civilised world when it comes to any and all interrogations that are to be used as evidence in a criminal, administrative, or even civil situation are audio recorded by LEO’s of Federal/State/otherwise roles..
Soon though we expect you all to enter the 21st Century like us where not only does the LEO & the court receive a copy of the audio recording but the person being interviewed does as well. Yes a triplicate is made in digital awomeness, how amazing is that?
In fact…. and we know this might take your breath away, but we even VIDEO record the interview from a variety of angles so that nothing is left to the imagination. We, the rest of the world, call this procedural fairness.
Sure, they just agree to record at all, and now you expect 21st Century technology. Is nothing we do good enough for you?
It seems to me that all of this recording business is just an irresponsible questioning of the Good Faith doctrine. Gideon’s been stirring up trouble over at A Public Defender. Some Andrew Cohen rascal seems to think our public officials aren’t deserving of the presumption of truth — or at the very least, that such presumption shouldn’t trump a defendant’s presumption of innocence. (Link omitted per rules.)
I suppose when you’ve got such miscreants casting doubt on the virtue of our judicial system, all we can do is provide the evidence to prove them wrong. So tragic that we should bear the costs of their skepticism.
So be it. What’s the worst that could happen?
Though your comment is significantly off-topic, it’s worth one quick round of discussion. I think Cohen (and therefore Gid, by extension), conflated two distinctly different issues, the legal presumption of good faith and inherent systemic bias. The presumption of good faith is not only appropriate, but necessary to the functioning of any government. Just like its counterpart, the presumption of regularity, there must be a rebuttable baseline of normalcy, for nothing else is conceptually possible. Their issue is with systemic bias, not the presumption, and I found Cohen’s post simplistic, silly and far below my expectations of him.
I was deeply disappointed that Cohen failed to recognize the distinction, or appreciate the error of his reasoning. And I continue to be disappointed by those who follow his lead. Sorry, but you asked.
I apologize for the digression. I had felt that the ideas were sufficiently related that it wouldn’t be considered off-topic. I see you disagree and so I will be more selective in my future references.
Thank you for the response.
You made a valiant effort to connect the dots. Had it not been for my poor reaction to Andrew Cohen’s article, you probably would have gotten away with it. So it’s more my fault than yours.