-Submitted by David Drumm (Nal), Guest Blogger

At a time when recording a conversation is as easy as whipping out a cellphone or iPod, the FBI policy on electronic recording of witness interviews is: “agents may not electronically record confessions or interviews, openly or surreptitiously, unless authorized by the SAC or his or her designee.” Instead FBI agents take notes and later type up a summary report called a form 302. The interview takes place with two FBI agents and the single interviewee. The FBI has eschewed the objective for the subjective.

This policy has proved problematic in numerous cases. District court judge Charles B. Kornmann in South Dakota lamented that he was forced to hear: “another all too familiar case in which the FBI agent testifies to one version of what was said and when it was said[,] and the defendant testifies to an opposite version or versions.”

Former U.S. attorney for Arizona, Paul Charlton, was forced to resign when he tried unsuccessfully to order the FBI to record confessions. Charlton recalls that “We lost cases, we had to plead down cases, we had to drop cases just because of this policy.” In a beating case on a Navajo reservation, the defendant had been charged with assault with intent to commit murder for the attack on his live-in girlfriend. After the victim refused to cooperate, the form 302 was the critical piece of evidence. However, the form 302 didn’t even indicate if the defendant was intoxicated or if the interrogation was in English or Navajo.

In an internal memo, the FBI listed its arguments supporting its non-record policy:

First, the presence of recording equipment may interfere with and undermine the successful rapport-building interviewing technique which the FBI practices. Second, FBI agents have successfully testified to custodial defendants’ statements for generations with only occasional, and rarely successful, challenges.

Thomas P. Sullivan, et. al., have spoken with officers from over 600 police and sheriff departments and found “None of the officers who had experience with electronic recordings would voluntarily return to reliance on handwritten notes.”

The memo offers another FBI argument is:

[A]s all experienced investigators and prosecutors know, 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.

What happened to the “successful rapport-building interviewing technique?” With the frequency of false confessions, one would think that the FBI valued ascertaining the actual guilty party and not just obtaining a confession that looks good to a jury. Playing to the jury is the FBI’s stated motivation. Juries tend to believe the two FBI agents, and the form 302, and this advantage would be lost if a recording was used.

The real reason the FBI doesn’t want to record interviews is Title 18 of the United States Code, section 1001, the so-called federal false statements law. Without recordings, the sole arbiter of what an interviewee says, is the FBI and its form 302. The threat of a charge if the interviewee is called to testify before a grand jury, or at trial, ensures testimony that is favorable to the prosecution. As noted by Harvey Silverglate:

Thus, the 302 reports are not there just to help the FBI report on interrogations; they are key tools for later manipulating witness testimony in a courtroom.

New York attorney Eric Dixon writes:

If the FBI wants to talk to you, they may be setting a trap for you where you walk into the interview totally innocent, and are totally vulnerable to being charged with a crime afterwards, no matter what you say.

H/T: Mano Singham, Brendan McCarthy (Times-Picayune), Steve Chapman, Eric Lipton and Jennifer Steinhauer (NY Times), Colin Ross.