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

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.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Anonymous Coward, May 27th, 2014 @ 4:40pm

    All this will amount to is lead back to cover up when the going gets sticky for less than honest or legal methods.

     

    reply to this | link to this | view in thread ]

  2.  
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    Anonymous Coward, May 27th, 2014 @ 8:09pm

    technical issues everywhere

    I bet the agents will have constant technical issues with it not working. Then again, just like the torture videos, I guess the tapes can always just magically disappear if it shows the agents committing crimes against people.

    10 years ago I would have sang the praises and defended any federal agents and the work they do. Now, I would have a hard time swerving to miss one. How far we have come.

     

    reply to this | link to this | view in thread ]

  3.  
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    Mark Noo, May 27th, 2014 @ 11:24pm

    cell phones record interviews

    botched investigations, lost evidence, unprofessional conduct and false convictions


    Sweet Jesus, my cell phone has the ability to record conversations. But that won't be good enough for any federal agency. We are going to need to buy some big budget items.

     

    reply to this | link to this | view in thread ]

  4.  
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    Ninja (profile), May 28th, 2014 @ 3:07am

    Couple this with their awesome information gathering and processing... Next the FBI will be breaking the news: "Iraq has mass destruction weapons and Saddan Hussein must be dealt with!"

    Or is it too up to date for them?

     

    reply to this | link to this | view in thread ]

  5.  
    identicon
    Anonymous Coward, May 28th, 2014 @ 4:08am

    "Doctor, Doctor, it hurts when I do that!"

    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.
    Then don't do that.

     

    reply to this | link to this | view in thread ]

  6.  
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    Gwiz (profile), May 28th, 2014 @ 8:42am

    Sound Advice

     

    reply to this | link to this | view in thread ]

  7.  
    identicon
    Anon, May 28th, 2014 @ 10:40am

    Odd..

    "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."

    You mean, just because it's legal does not mean it's ethical?

    Of course, if the FBI tortured suspects to get confessions, then maybe the public would respond with the same disapproval. You can lie to a suspect and tell him that his partner ha sold him out, or if he doesn't confess the DA will go for extra charges and 138 years in solitary, but confess and get only 5 years. Would I believe a confession made under those circumstances? Probably not.

     

    reply to this | link to this | view in thread ]

  8.  
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    Groaker (profile), May 28th, 2014 @ 10:41am

    There is no obligation to talk to the FBI. So don't. The power differential is incredible. I wouldn't take on the world heavyweight professional in a boxing match. It would make as much sense to try and outwit agents in a verbal duel no matter how bright and educated one is. Unless one has (not just is) an attorney.

    And, this applies only to those in custody, and I would be fairly sure that there are far more interviews with people who are not in custody than in custody.

    And what does in custody mean to the FBI in this circumstance? A person being detained in the field, or a person under arrest being questioned in a formal FBI holding facility?

     

    reply to this | link to this | view in thread ]

  9.  
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    btr1701 (profile), May 28th, 2014 @ 6:16pm

    Bin Laden

    > 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.

    I'm not sure how much credibility I give to a news organization (in this case, the Arizona Republic) that doesn't realize bin Laden was never put on trial. He was shot dead in Pakistan. Therefore the practice of using 302s couldn't have impacted his trial as the Republic claims, since that trial never occurred.

     

    reply to this | link to this | view in thread ]

  10.  
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    Lisa Westveld (profile), May 29th, 2014 @ 4:45am

    If they reached the 20th century, they're still a century behind the rest of us. Today, we're living in the 21th century! :-)

     

    reply to this | link to this | view in thread ]


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