-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.
Regarding juvenile witnesses, I would NEVER interview them w/o a parent present, an attorney if they wished, and I would have the parents also sign off on the statement.
I agree w/ OS on the videotaping of interviews in criminal cases involving juveniles. The vast majority of statements of which I spoke were civil matters, although sometimes originating from criminal convictions, DUI, arson, homicide and rape being the most common.
kay, You are certainly an iconoclast.
The FBI love total control. With the archaic 302’s they have had it for decades longer than is warranted. However, you know they will come kicking and screaming into the new millenium.
I have taken thousands of statements. You must realize, that even a recorded statement is not w/o controversy. In more than just a few cases the witness has recanted recorded statements I took w/ the boilerplate statement, “That’s what I said, but that’s not what I meant.” Now, that is almost always bullshit. But, I can remember maybe 2-3 times where I think the witness was righteous in saying that. These involved nuanced issues on complicated cases. The one most recent was a very complicated product liability case.
Some of my clients wanted recorded statements. I would tell them, based on my “that’s not what I meant” experiences, the proper procedure would be for me to record the statement, go back to my office and transcribe it, return to the witness, have them read it over, make any changes they wanted, and then sign/date it. That costs money..I charge by the hour. So, the way I took @ least 90% of all the statements was good old fashioned handwritten. I would write as the witness gave me the facts. I would read back every sentence after I wrote it. After it was complete, we would read it aloud together. Often there were changes that were made and initialled by the witness. The witness would initial each page in the margin indicating they had read it. Understand, some witnesses would say, “I know what’s there, I’ll just sign it.” I wouldn’t allow that because I would end each statement w/ a boilerplate,”I have read the above 5 page statement and I am signing it only because it is true and correct.” So I made them read it, then sign/date it. If they wanted a copy I would make one in my office and mail it to them promptly. In over 30 years I only had one witness try and recant. It was also a product liability suit involving a major gun manufacturer. This witness was a friend of he plaintiff. The information he gave me turned out to be very harmful to his friend’s case. I was called to the stand to explain what I just described here, only w/ a real grilling from the plaintiff’s attorney. There were no holes because it is very basic and righteous procedure.
Most of the work I did was insurance defense. But, like many professions I did everything including quite a few plaintiff cases in my early years as a PI. And, prior to civil work, I did criminal work for a prosecutors office. Those aforementioned written were the statements I took.
What Tony C. said, with one clarification. These days, one might want a lawyer at one’s side even when reporting a crime, depending on the crime.
Unless you are reporting a crime, never, ever, ever answer questions without a lawyer by your side, and if you can help it never, ever, ever allow your child to be interrogated by police without their counsel by their side.
BarkinDog wrote in to say that he is in Den Haag with his half blind guy working on some project for Cardinal Nation at the World Court and that the Cathouse for dogs was sublime and he will be back in Florida tonight.
Every defendant should state that he invoked the privilege against self incroimination when interviewed by Agent 99.
Why dont you have a recording of the interview Agent 99?
FBI policy.
Oh. You deny that he invoked his right not to talk?
Yes.
What would be the best evidence of that?
His own statement.
But its not recorded by you there at FBI headquarters, you had the means. Your recollection and your notes are all we have and you cant tell us what you had for breakfast that day or what the bumper sticker on Al Kida’s car said about Romney and Tricky Dick.
That was Agent 99 not Agent 9. Err in spulling again by this Dogalogue Machine.
Deposition of Agent #9:
Morning Agent #9 how are ya?
Fine.
I know its early, have you had your breakfast?
Yes.
The one provided here in the facility out in the hall?
Yes. Recall what you ate?
Obj but go ahead and answer.
Two eggs over easy.
I see. And back in January you took the statement of sorts of my client. Yes.
On January 19th?
Yes.
What did you have for breakfast?
I dont know.
Why not? I did not write it down.
Ok.
Now did you record on tape what my client said and what your client said? No.
Why not?
Against agency policy.
What did my client tell you about Al Kida, the guy who works the front desk at the hotel?
I dont recall.
Did you write it down?
No.
No recording?
None.
You interviewed Al Kida later on that same day?
Yes.
What did he say about my client?
I dont recall.
Did you write it down?
No.
Now, Al is number 2 in Cardinal Nation, is he not?
Yes.
And you allege in the government Complaint that Cardinal Nation is a conspiracy to form a Nation State in Saint Louis and throw out all the Cub fans?
Yes.
So, your statements here din court today about the subject matter are not complete as to what was said that day by my client or Al Kida?
Correct.
At Court: Move to strike the evidence of the interrogation under the best evidence rule and the Rule of Completeness. Objection to what my client said as hearsay. Objection to what client said as right against self incrimination as he involked that right that day and schmucko Agent #99 did not give a full report or record my client’s invocation of the right. Rule Against Perpetuity. Rule Against Cancer on the Government. Rule in Favor of Cardinal Nation.
I called the FBI yesterday to report a federal crime by a DOJ employee. They said they are deluged with reports of crimes and that they would let me know if they decide to prosecute.
I am on a DOJ email list. I got an email regarding a federal crime for which the defendant pled guilty. I went to the Court and paid PACER to download the indictment, which was of a local government law enforcement officer. I copied the statements in the complaint and compared them to what the DOJ official did — create false records in order to avoid an investigation — and I emailed to the DOJ attorney listed on that case with the evidence that the DOJ employee committed felonies but the DOJ lawyer refused to acknowledge my email.
There isn’t a way to file a written crime report with DOJ and get an acknowledgment that you filed a reprot of a crime.
The crime I reported was that Charlene Todd, a USMS internal investigator, created a false record that I was a federal prisoner for prostitution in order to close an investigation for unlawful imprisonment. I was never charged with prostitution and prostitution isn’t a federal crime.
DOJ is just a corrupt overly politicized agency. We can’t count on DOJ to prosecute crimes and we need to worry about them prosecuting without probable cause as well as kidnapping citizens like myself and locking them up without an evidentiary hearing or criminal charge.
This is but one example of how every day folks are disadvantaged by manipulation of the “law”. It makes perfect sense to those who dwell in the legal world, but is eye opening to others. Maybe it should be that way, maybe not. Here’s the bottom line: pay the price of not talking if you want to protect the rights granted to you by the Constitution. Tough to do if you are a regular person who knows that you did nothing wrong, since you will be detained for a long period and subjected to psychological abuse, just for the privilege to which you are entitled. The fight is on from the get go, and most cannot stand the fight.
I missed the kitteh….
Excellent Nal….. And who is the judge or jury going to believe …. Of course the well coached lying SAS agents or cops…..
Another of my beefs. When kids who allege abuse are taken to a counselor (or anyone else) for an interview about the abuse, the session(s) should not only be audio recorded, but video as well. It is unbelievably easy to screw up a child interview. Children can be lead easily, and their understanding of language is different from adults.
Most people holding themselves out to be experts are not. I have a friend who recently retired as a private investigator. He made a good living helping defend people accused falsely of abuse. Most these allegations popped up in the middle of child custody cases. He asked me to analyze a number of cases where there were recordings available. Some of the worst interviews I have ever seen or heard. Even to the point where a child is browbeaten into making an accusation after denying anything happened. We would never have known were it not for the Court ordering all the interviews be recorded.
For any lawyer working on any case involving statements by children, I recommend Handbook On Questioning Children : A linguistic Perspective by Anne Graffam Walker. Dr. Walker is a forensic linguist, and specializes in working with children.
The link takes you to one of her handouts (PDF file).
http://www.ou.edu/cwtraining/assets/pdf/handouts/1012/A%20Few%20Suggestions%20for%20Questioning%20Children,%20WP.pdf
This is worse than I ever imagined. ” I’m from the FBI and I am here to make you guilty.”
What would happen if the unrepresented interviewee insisted on a recording? Is there another statute that deals with that issue or do the agents just bully the witness?
This is so depressing and infuriating.
This is an amazing story. The best way to cover their own behinds is to make no record of the interview. I guess the FBI doesn’t really care about the truth.
Good one Nal!
This is egregious in the extreme. I was in juvenile court a few years go. It was as transfer hearing to determine if the teenage defendant was going to be transferred to criminal court, for trial as an adult. The prosecutor put two city detectives on the stand, who testified as to what the youngster said to them. The judge asked them for a copy of the recorded interview (at my suggestion). They did not have one. The judge wanted to know why, and they claimed they could not afford a recorder and tapes.
The judge had heard enough. He lit into them and told him he was going to personally buy them a digital recorder, and they should NEVER come into his courtroom again without recording any interview the did with a kid. I know all caps is shouting, but that is exactly what the juvenile court judge did.
The prosecutor made several excuses, and the detectives tried every way they could to avoid admitting they had been told they should never record any interview.
The state of Tennessee requires psychologists and psychiatrists who are going to be conducting court ordered mental exams to attend an all-day seminar in ordered to be “certified by the state.” One of the things the state employee presenter emphasizes is that the interview should never be recorded because, “You might be cross examined on it, and it could cause problems.”
Really?
Good points Nal. The video is quite telling as well.
In the absence of a plausibly objective record of what an interviewee actually said, in the actual context in which it was said, to an interviewer, the opportunity to convict an actually-innocent person may be severely impaired.
To what extent is the proclaimed efficacy of law enforcement practices critically dependent upon the use of deception as an essential aspect of getting “good” scores for apparent law enforcement social utility?
Well, isn’t that sweet? How the hell can we abide by this sort of behavior? Its practically an admission that they are afraid to show what they do in order to obtain a confession. To pull a line often thrown around by the people demanding more surveillance in our lives “If you have nothing to hide you have nothing to fear from this recording process”