Federal agents are not required to notify or obtain consent from persons who are being recorded. 18 U.S.C. §2511, (2)(c)-(e) (2002).
- Air Force
- Army and Military Police
- Homeland Security
- Inspector General
- Internal Revenue Service
- Marine Corps
- Veterans Affairs
Citation: Instruction 71-118V4 of the Air Force Office of Special Investigations (AFOSI) Manual, General Investigative Methods (AFOSIMAN 71-124), effective October 2009. “This manual provides policy, guidance, and procedures necessary to comply with laws and higher directives, ensure health and safety, standardize investigative operations, and insure investigate sufficiency for general investigative methods common to the [AFOSI]. It pertains to all AFOSI personnel. Compliance is mandatory.”
The Air Force Judge Advocate General’s Online News Service stated on August 26, 2009: “AFOSI will begin recording all subject interviews beginning 1 October 2009. The current draft policy requires DVD recording of all subject interviews, with limited exceptions, and the optional recording of witness and victim interviews.”
The Department of the Air Force Regulations provide: “Electronically recording interviews refers to both video and audio recording.” § 4.18. Interview rooms in AFOSI facilities shall be equipped with the capability to electronically record interviews. § 4.18.1. “Electronic recording equipment will include audio and video recording capabilities, and this equipment must meet the minimum technical standards contained in paragraph 5.16.9.” § 126.96.36.199. “Recording equipment should be left on throughout the entire interview session.” § 188.8.131.52. “While Federal law allows for recording interviews made without the expressed consent of the interviewee, not all states allow for the use of such recordings. Coordinate with the local SJA or, depending on circumstance, with the civilian prosecuting authority to ensure compliance with local laws….at a minimum, signs shall be posted in the waiting areas and outside of interview rooms. Signs will provide sufficient notice of electronic monitoring. The signs should read: All persons are subject to audio or audio and video monitoring while in this facility.” § 4.18.4.
Circumstances that excuse recording
Consequences of unexcused failure to record
“If an interviewee requests electronic recording be stopped, agents will comply with the request; however, before stopping the recording, agents will advise the interviewee that recording ensures an objective, true, and accurate record of the interview, and therefore, continuing to record may be to the interviewee’s benefit. If the interviewee still indicates he or she wants the equipment turned off, the recording equipment will be turned off.” § 184.108.40.206.
“Consistent with existing evidence disposition procedures, the original and all copies of recorded interviews shall be destroyed after the case is adjudicated. Copies of recorded interviews will not be sent to the AFOSI File Repository,” except they may be retained for training purposes. § 4.18.8
“Equipment and Interview Room Requirements. AFOSI will use recording equipment that yields high quality visual and audio recordings. The systems shall be closed circuit systems; wireless systems will not be used.” § 4.18.9. “Cameras must have a lens size that allows for a clear and undistorted view of the interviewee. The camera will be positioned at an angle that allows for a frontal view of the interviewee. The camera distance and image will allow for easy observation of an interviewee’s facial expressions and body language.” § 220.127.116.11.
In April 2010, Major Lynn Schmidt of the U.S. Air Force submitted a report titled Examining the Content and Implementation of the New U.S. Air Force Policy of Recording Suspect Interviews to the faculty of Air University at Maxwell Air Force Base in Montgomery, Alabama. The report summarized results from focus groups involving Judge Advocates and AFOSI agents, in which participants were asked to evaluate the Air Force’s policy of recording suspect interviews. Id. at 6.
When asked to discuss whether the Air Force’s recordation policy “is a good or bad thing,” the report noted, “[t]he responses from both mid-level and senior Judge Advocates were overwhelmingly positive while the responses from mid-level and senior AFOSI agents were somewhat mixed.” Supportive participants felt the “new policy was a good idea because the recorded interview will serve as a factual record of the interview with the exact words spoken by the suspect and the agents as well as the demeanor of the suspect and the agents involved . . . all of which would be beneficial during pre-trial motion hearings and actual trial proceedings.” (7). On the other hand, “[a]gents who were reluctant to embrace the policy seemed to focus on how the actions of agents would be perceived by external audiences.” (7).
Focus group participants were also asked to discuss whether “AFOSI should record all suspect interviews or . . . only record suspects accused of the more serious offenses.” (9). According to the report, “[e]veryone who responded to this question . . . agreed that all suspect interviews should be recorded.” Focus group participants thought that “giving AFOSI agents the discretion on recording only ‘serious’ offenses would open up such decisions to scrutiny and would raise the questions of what, exactly is a ‘serious’ felony and what isn’t and, ultimately, a ‘Why was suspect A recorded and not suspect B’ dilemma.” (9).
The Code of Federal Regulations governing Military Police Investigation provides (32 C.F.R. § 637.21):
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Recording interviews and interrogations. The recording of interviews and interrogations by military police personnel is authorized, provided the interviewee is on notice that the testimony or statement is being recorded. This procedure is a long accepted law enforcement procedure, not precluded by DA policies pertaining to wiretap, investigative monitoring, and eavesdropping activities.
In an article published in The Army Lawyer, DA PAM 27-50- 173, (May 1987), entitled Will the Suspect Please Speak Into the Microphone? (pages 46-51), Captains R. Troxell and T. Bailey of the U. S. Army Trial Defense Service proposed enactment of a rule applicable to military police and the Criminal Investigation Division:
Many court-martial convictions are based in large part upon confessions or admissions obtained by the military police or the Criminal Investigation Division (CID). These confessions or admissions appear in court, at best, as written statements explained by the recollections of the participants, and at worst, as simply recollections. These recollections often create inaccurate, incomplete, and conflicting accounts, which in turn lead to disputes regarding rights warnings, waiver, voluntariness, and the contents of the interview. These disputes can, in large part, be eliminated by the objective record of a tape recording of the entire interview, including rights warnings. More importantly, a tape recording will provide the court-martial with a much better opportunity to determine the truth. Consistent with our search for the truth, the following rule is proposed:
Rule. Tape Recording Suspect Interviews.
(a) All interviews of suspects by members of the military police or the Criminal Investigation Division, including rights advisement and waiver of rights, shall be tape recorded, unless there exist exigent circumstances which would prevent recording. Such recordings will be preserved for trial.
The proposed rule will aid the courts in accurately determining whether there has been compliance with the warning and waiver requirements of Article 31 and Miranda v. Arizona; aid the courts in accurately determining the contents of an admission or confession; save the government time, effort, and expense; allow statements to be redacted prior to trial so as not to prejudice the members; and aid in effective interviewing of suspects.
The first two advantages are by far the most important. They demonstrate that tape recording creates truth where there was uncertainty by replacing the uncertain medium of biased human perception with the objective record of a tape recorder. All evidence regarding rights warnings, waiver, subsequent invocation or lack thereof, coercion, promises, contents of statements, etc., will be accurately recorded, thus providing a court with a complete record for dispute resolution. Without question, the reliability and credibility of a confession or admission are better judged by listening to a tape than by listening to the recollections of participants. This accuracy is especially important in the case of a suspect interview because an objective electronic recording best protects a suspect’s constitutional and statutory rights. Clearly, a tape recording is a substantial advantage in a court’s search for truth.
Whether or not the failure to record violates constitutional or military due process, requiring suspect interviews to be tape recorded seems consistent with the prevailing notions of fundamental fairness on which the due process clause is based. Therefore, tape recording of suspect interviews should be required.
The proposed rule is designed to offer the court a complete look at the circumstances and statements made in a suspect interview, the crucial evidence upon which many convictions are based. It is not designed to allow an accused the opportunity to lie on the witness stand. Therefore, consistent with Military Rule of Evidence 304(b)(1), the rule would permit a statement to be used to impeach by contradiction the in-court testimony of the accused and in a later prosecution against the accused for perjury, false swearing, or for making a false official statement.
With modern technology available to tape record all suspect interviews, there appears no strong argument against, and many for, adoption of a rule requiring such recording…To fail to adopt this rule is to choose uncertainty over certainty, to choose possible injustice over justice. ‘For any time an officer unimpeded by an objective record distorts, misinterprets, or overlooks one or more critical events, the temple may fall. For it will be a house built upon sand.’ (Citing Kamisar (1977), see Part 6 below).
On May 10, 2010, the Deputy Secretary of Defense issued a DTM 09-031 Directive-Type Memorandum entitled “Videotaping or Otherwise Electronically Recording Strategic Intelligence Interrogations of Persons in the Custody of the Department of Defense,” applicable to Department of Defense agencies.
It is DoD policy that, “Subject to the waiver and suspension provisions in Attachment 2 of this DTM, an audio- video recording of each strategic intelligence interrogation of any person who is in the custody or under the effective control of the Department of Defense or under detention in a DoD facility, conducted at a theater-level facility.” The DTM is to be implemented by the Heads of DoD Components “as soon as possible but not later than 180 days of its issuance.” Attachment 3, par. 3a.
Applicable to “OSD [Office of the Secretary of Defense], the Military Departments, the Chairman of the Joints Chiefs of Staff, the Combatant Commands, the Office of the Inspector General of the [DoD], the Defense Agencies, the DoD Field Activities, and all other organizational entities within the [DoD]”; to “DoD military personnel, DoD civilian employees, and DoD contractor personnel…who conduct or support strategic intelligence interrogations”; to “Non-DoD personnel who agree, as a condition of permitting them access to conduct strategic intelligence interrogations, to comply with its terms, including other U.S. Government agency personnel, interagency mobile interrogation teams, and foreign government personnel”; and to “DoD and non-DoD law enforcement personnel and counterintelligence personnel who conduct or support strategic intelligence interrogations.”
Circumstances that excuse recording
The DTM “excludes from [its] requirement[s] members of the Armed Forces engaged in direct combat operations and DoD personnel conducting tactical questioning.” The DTM contains provisions relating to equipment failures, and [to] waivers and suspensions of the requirement. Attachment 2, pars. f, i and j.
Consequences of unexcused failure to record
Electronic recordings “shall be disposed of only in accordance with a disposition schedule deployed by the USD [Under Secretary of Defense for Intelligence] and approved by the Archivist of the United States. If a recording contains any credible evidence of a suspected or alleged violation of applicable law or policy, it shall be retained as evidence to support any investigation and disciplinary or corrective action.”
DTM 09-031 expired effective May 2012, and has not been renewed.
An article by Major Edward W. Berg, Judge Advocate, U.S. Army, Videotaping Confessions: It’s Time, 207 Military Law Review 253 (2011) (footnotes omitted):
This article will argue that the Department of Defense (DoD) should adopt a unified policy requiring videotaping custodial interrogations of felony level suspects by the criminal investigative branches of each service, i.e., Criminal Investigative Division (CID) for the Army, Naval Criminal Investigative Service (NCIS) for the Navy and Marine Corps, and Office of Special Investigations (OSI) for the Air Force. This requirement should extend to recording all aspects of the custodial interrogation, including the initial rapport building phase, the rights-warning under Article 31, Uniform Code of Military Justice (UCMJ), and Miranda v. Arizona, as well as the entire interview session. Where military exigencies do not permit videotaping, other means of electronic recording should be used. Such a policy should also be coupled with appropriate funding for the required equipment and training. (Pages 254-55.)
The evolution in civilian criminal law toward videotaping interrogations supports the proposition that DoD can and should adopt such a policy. (Page 260.)
The DoD should adopt a unified policy requiring videotaping custodial interrogations of felony-level crimes by the criminal investigative branches of each service, i.e., CID, NCIS, and OSI. This requirement should extend to recording all aspects of the custodial interrogation, to include the initial rapport building phase, the rights-warning under Article 31, UCMJ, and Miranda v. Arizona, as well as the entire interview session. Where military exigencies do not permit videotaping, other means of electronic recording should be used, such as audio recording with a voice-recorder. A policy mandating videotaping should be coupled with the appropriate funding for the required equipment and training.
[In addition to the benefits mentioned above], there are additional and more specific benefits to mandated videotaping of custodial interrogations.
These benefits include efficiency, improving investigative agents’ techniques, enhancing agents’ testimony, and ease of implementation. (Page 267.)
In response to my FOIA request, in August 2012 an officer of the U. S. Immigration and Customs Enforcement produced a cover page entitled Department of Homeland Security, U. S. Immigration and Customs Enforcement, Office of Investigations,Interviewing Techniques Handbook, OI HB 10-03, April 28, 2010. Pages 30 to 34 contain the following provisions, among others:
16.1. Custodial Interviews. Electronic recording of custodial (see Section 4.5) interviews may further an investigation and facilitate the successful outcome of a prosecution because they may obviate challenges to the voluntary character of self-incriminating statements. They further establish that the interviewing SA properly advised the individual being interviewed of his or her rights against self-incrimination (Statement of Rights) and that the individual understood such advisement and waived his or her right without coercion or duress. ASAs should be mindful that all such recordings are discoverable. Therefore, electronic recordings of custodial interviews should be controlled, stored, handled, transmitted, distributed, and disposed of in accordance with OI’s policy on evidence handling.
Confidential consultations between the individual being interviewed and his or her attorney must not be recorded.
16.1.1 When Custodial Interviews May Be Recorded. Electronic recordings of custodial interviews may be used on a case-by-case basis when a determination has been made that special circumstances (see Subsection B below) exist or when otherwise determined to be in the best interest of ICE, subject to authorization of the SAC. SAC’s are authorized to delegate this authority to subordinate officials within their AOR.
The approving official may authorize the electronic recording of custodial interviews in any of the following instances:
- The approving official has made a determination that an electronic recording is in the best interest of ICE; and/or
- The approving official recognizes that one or more of the following special circumstances exist:
- A juvenile (defined in Section 4.14) needs to be interviewed;
- The individual refuses to be interviewed unless the interview is recorded;
- The individual’s apparent ability to comprehend is questionable;
- The individual cannot read or write, or his or her knowledge of the language used to conduct the interview may be challenged;
- An investigation has produced limited evidence and the statements by the individual being interviewed are likely to be essential to the prosecution; and/or
- Local U.S. Attorney policies require the electronic recording of interviews.
Whenever possible, SAs should seek advice from their local OCC prior to conducting an electronic recording of an interview in an investigation that has no involvement by the U.S. Attorney’s Office. In cases where the investigation has been assigned an AUSA, SAs should seek advice from the assigned AUSA.
There follow in paragraphs 16.1.2 through 16.2, and section d of paragraph 16.3, instructions as to the preamble to recordings; handling objections to recordings; and concluding recordings.
In response to my FOIA request, in August 2012 an officer of the Department of Homeland Security, United States Secret Service produced, a document headed United States Secret Service, Directives Division, Subject: Suspect Interviews and Statements. The document stated: “This directive is in effect until superseded.” The attached two redacted pages contain the following:
Audio and Video Monitoring Devices.
Interview rooms equipped with audio and/or video monitoring devices will be posted with warning signs in English, and Spanish if appropriate, advising subjects of the presence of these devices. Subjects who do not speak or understand English must be given this advisory statement in a language understandable by them… Offices needing warning signs or replacement warning signs should contact ISD with their request. Since the intended purpose of these devices is for SAFETY REASONS, no Attorney-client conversations should be monitored….
Use of Video Recorded Statements.
Unless authorized by INV or OPO [Office of Protective Operations] depending on the type of interview, no statements will be recorded using video.
Use of Audio Recorded Statements. Audio recorded statements may be taken with a suspect’s permission without prior approval.
In the publication of the Office of Inspector General, under the subject Frequently Asked Questions About OIG Investigations, it is stated:
Under the Inspector General Act of 1978, as amended, OIG is authorized to carry out both investigations and audits to ‘promote economy, efficiency, and effectiveness in the administration of, and … prevent and detect fraud and abuse in … [the Department’s] programs and operations.’ Through its investigative and audit findings and recommendations, OIG helps protect and strengthen Departmental programs and operations.
As part of our mission, we conduct investigations that involve employees, management officials, and affected Departmental programs and operations. Investigations are typically administrative in nature, though a small proportion pose criminal implications for employees.
This set of Frequently Asked Questions (FAQs) is intended to provide Department of Commerce employees and managers with helpful information regarding the nature and scope of OIG investigative activities, as well as their obligations and rights in connection with OIG investigations. In the interest of transparency, we’re providing these FAQs to promote greater understanding of our processes.
Q. How is an OIG interview memorialized?
A. Under Departmental directives DAO 207-10 and DOO 10-13, OIG investigators have authority to take sworn written statements (i.e., affidavits). Additionally, pursuant to OIG policy, investigators may audio or video-record interviews. Recording is to the benefit of all parties, as it ensures a definitive record exists of both what was asked and the information provided in response. Pursuant to the above-referenced directives, employee cooperation extends to participating in audio/video-recorded interviews. As noted above, an employee's management can become involved if the employee declines to participate in a recorded interview.
The Office of Inspector General (OIG) is a generic term for the oversight division of a state or federal agency aimed at preventing inefficient or illegal operations within their parent agency. Such offices are attached to many federal executive departments, independent federal agencies, as well as state and local governments. Each office includes an Inspector General and employees charged with identifying, auditing, and investigating fraud, waste, abuse, embezzlement and mismanagement of any kind within the parent agency. In addition to representing departments within the United States Government, some OIG's exist to investigate specific offenses (exp. Small Business Loans Office of Inspector General).
In the United States, the first Office of Inspector General (OIG) was established by act of congress in 1976 under the Department of Health and Human Services to fight waste, fraud and abuse in Medicare, Medicaid and more than 100 other HHS programs. With approximately 1,600 employees, the OIG performs audits, investigations, and evaluations to establish policy recommendations for decision-makers and the public.
There are 73 federal offices of inspectors general, a significant increase since the statutory creation of the initial 12 offices by the Inspector General Act of 1978. The offices employ special agents (criminal investigators, often armed) and auditors. In addition, federal offices of inspectors general employ forensic auditors, or "audigators," evaluators, inspectors, administrative investigators, and a variety of other specialists. Their activities include the detection and prevention of fraud, waste, abuse, and mismanagement of the government programs and operations within their parent organizations. Office investigations may be internal, targeting government employees, or external, targeting grant recipients, contractors, or recipients of the various loans and subsidies offered through the thousands of federal domestic and foreign assistance programs.
Some inspectors general, the heads of the offices, are appointed by the president and confirmed by the senate. For example, both the inspector general of the U.S. Department of Labor and the inspector general of the U.S. Agency for International Development are presidentially appointed. The remaining inspectors general are designated by their respective agency heads, such as the U.S. Postal Service inspector general. Presidentially appointed IGs can only be removed, or terminated, from their positions by the President of the United States, whereas designated inspectors general can be terminated by the agency head. However, in both cases Congress must be notified of the termination, removal, or reassignment.
Presidentially appointed inspectors general
- Agency for International Development
- United States Department of Agriculture
- Central Intelligence Agency
- United States Department of Commerce
- Corporation for National and Community Service
- Office of the Inspector General, Department of Defense
- United States Department of Education
- United States Department of Energy
- Environmental Protection Agency
- Export-Import Bank of the United States
- Federal Deposit Insurance Corporation
- General Services Administration
- United States Department of Health and Human Services
- Department of Homeland Security Office of Inspector General
- United States Department of Housing and Urban Development
- United States Department of the Interior
- United States Department of Justice Office of the Inspector General
- United States Department of Labor
- National Aeronautics and Space Administration
- Nuclear Regulatory Commission
- United States Office of Personnel Management
- Railroad Retirement Board
- Small Business Administration
- Social Security Administration
- United States Department of State — Office of Inspector General (OIG) for the U.S. Department of State and the Broadcasting Board of Governors (BBG)
- Tennessee Valley Authority
- Office of Inspector General for the Department of Transportation
- United States Department of the Treasury
- Treasury Inspector General for Tax Administration of the Department of the Treasury
- United States Department of Veterans Affairs
Designated federal entity inspectors general
- National Railroad Passenger Corporation (Amtrak)
- Appalachian Regional Commission
- Commodity Futures Trading Commission
- Consumer Product Safety Commission
- Corporation for Public Broadcasting
- Denali Commission
- Election Assistance Commission
- Equal Employment Opportunity Commission
- Farm Credit Administration
- Federal Communications Commission
- Federal Election Commission
- Federal Housing Finance Board
- Federal Labor Relations Authority
- Federal Maritime Commission
- Federal Reserve Board
- Federal Trade Commission
- United States International Trade Commission
- Legal Services Corporation
- National Archives and Records Administration
- National Credit Union Administration
- National Endowment for the Arts
- National Endowment for the Humanities
- National Labor Relations Board
- National Science Foundation
- Peace Corps
- Pension Benefit Guaranty Corporation
- Postal Regulatory Commission (formerly Postal Rate Commission)
- United States Postal Service Office of Inspector General
- Securities and Exchange Commission
- Smithsonian Institution
Special inspectors general
- Special Inspector General for Afghanistan Reconstruction - appointed by the president
- Special inspector general for Iraq reconstruction - appointed by the secretary of defense in consultation with the secretary of state
- Special inspector general for the Troubled Asset Relief Program - appointed by the president with Senate confirmation
Legislative agency inspectors general
- Architect of the Capitol
- United States Capitol Police
- Government Accountability Office
- Government Printing Office
- Library of Congress
On May 15, 2008, the Internal Revenue Service added § 18.104.22.168 to the Internal Revenue Manual, under the section entitled “Criminal Investigations”:
Right to Record Interview.
- An interrogation or conference may be recorded only by a stenographer who is an employee of the IRS. This rule may be waived by the special agent’s SSA. At the request of the IRS or witness, which includes a subject, the SSA may authorize the use of a stenographer employed by a US Attorney, a court reporter of the US district court, a reporter licensed or certified by any state as a court reporter or to take depositions for use in a US district court. . . . If no stenographer is readily available, mechanical or electronic recording devices may be used to record statements by advising the witness, in advance, of the use of the device (implied consent). If the witness objects, the interrogator will refrain from mechanically or electronically recording the statement. If the witness elects to mechanically or electronically record the conversation, the IRS will make its own recording.
- A witness or subject will be permitted to hire a qualified reporter as described above to be present at his/her expense to transcribe testimony, provided that the IRS can secure a copy of the transcript at its expense or record the testimony using a mechanical or electronic recording device or its own stenographer or reporter. However, the IRS retains the right to refuse to permit verbatim recording by a non-IRS reporter or stenographer on the grounds that disclosure would seriously impair Federal tax administration.
This provision does not mandate recordings of interrogations, but rather makes them permissible, and it does not provide consequences if an agent fails to record an interview.
On May 12, 2014, the Director of the Executive Office for United States Attorneys sent a memorandum to all United States Attorneys, all First Assistant U.S. Attorneys, Criminal Chiefs and Appellate Chiefs, titled Subject: New Department Policy Concerning Electronic Recording of Statements. The full memorandum states:
Attached is a Memorandum from the Deputy Attorney General, outlining a new Department of Justice policy with respect to the electronic recording of statements. The policy establishes a presumption in favor of electronically recording custodial interviews, with certain exceptions, and encourages agents and prosecutors to consider taping outside of custodial interrogations. The policy will go into effect on Friday, July 11, 2014. Please distribute the Deputy Attorney General's Memorandum to all prosecutors in your office.
This policy resulted from the collaborative and lengthy efforts of a working group comprised of several United States Attorneys and representatives from the Office of the Deputy Attorney General, EOUSA, the Criminal Division, and the National Security Division, as well as the General Counsel, or their representatives, from the Federal Bureau of Investigation, the Bureau of Alcohol, Tobacco, Firearms and Explosives, the Drug Enforcement Administration, and the United States Marshals Service.
Earlier today during a conference call with all United States Attorneys, the Deputy Attorney General discussed the background of the policy and explained its basic terms. The policy will be the subject of training provided by the Office of Legal Education, including 2014 LearnDOJ training videos.”
The Subject of the memorandum is “Policy Concerning Electronic Recording of Statements.” The memorandum is in full as follows:
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
This policy is solely for internal Department of Justice guidance. It is not intended to, does not, and may not be relied upon to create any rights or benefits, substantive or procedural, enforceable at law or in equity in any matter, civil or criminal, by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person, nor does it place any limitation on otherwise lawful investigative and litigative prerogatives of the Department of Justice.
- Presumption of Recording. There is a presumption that the custodial statement of an individual in a place of detention with suitable recording equipment, following arrest but prior to initial appearance, will be electronically recorded, subject to the exceptions defined below. Such custodial interviews will be recorded without the need for supervisory approval.
- Electronic recording. This policy strongly encourages the use of video recording to satisfy the presumption. When video recording equipment considered suitable under agency policy is not available, audio recording may be utilized.
- Custodial interviews. The presumption applies only to interviews of persons in FBI, DEA, ATF or USMS custody.
Interviews in non-custodial settings are excluded from the presumption.
- Place of detention. A place of detention is any structure where persons are held in connection with federal criminal charges where those persons can be interviewed. This includes not only federal facilities, but also any state, local, or tribal law enforcement facility, office, correctional or detention facility, jail, police or sheriff s station, holding cell, or other structure used for such purpose. Recording under this policy is not required while a person is waiting for transportation, or is en route, to a place of detention.
- Suitable recording equipment. The presumption is limited to a place of detention that has suitable recording equipment. With respect to a place of detention owned or controlled by FBI, DEA, ATF, or USMS, suitable recording equipment means:
- an electronic recording device deemed suitable by the agency for the recording of interviews that,
- is reasonably designed to capture electronically the entirety of the interview. Each agency will draft its own policy governing placement, maintenance and upkeep of such equipment, as well as requirements for preservation and transfer of recorded content. With respect to an interview by FBI, DEA, ATF, or USMS in a place of detention they do not own or control, but which has recording equipment, FBI, DEA, ATF, or USMS will each determine on a case by case basis whether that recording equipment meets or is equivalent to that agency's own requirements or is otherwise suitable for use in recording interviews for purposes of this policy.
- Timing. The presumption applies to persons in custody in a place of detention with suitable recording equipment following arrest but who have not yet made an initial appearance before a judicial officer under Federal Rule of Criminal Procedure 5.
- Scope of offenses. The presumption applies to interviews in connection with all federal crimes.
- Scope of recording. Electronic recording will begin as soon as the subject enters the interview area or room and will continue until the interview is completed.
- Recording may be overt or covert. Recording under this policy may be covert or overt. Covert recording constitutes consensual monitoring, which is allowed by federal law. See 18 U.S.C. § 2511(2)(c). Covert recording in fulfilling the requirement of this policy may be carried out without constraint by the procedures and approval requirements prescribed by other Department policies for consensual monitoring.
- Exceptions to the Presumption. A decision not to record any interview that would otherwise presumptively be recorded under this policy must be documented by the agent as soon as practicable. Such documentation shall be made available to the United States Attorney and should be reviewed in connection with a periodic assessment of this policy by the United States Attorney and the Special Agent in Charge or their designees.
- Refusal by interviewee. If the interviewee is informed that the interview will be recorded and indicates that he or she is willing to give a statement but only if it is not electronically recorded, then a recording need not take place.
- Public Safety and National Security Exception. Recording is not prohibited in any of the circumstances covered by this exception and the decision whether or not to record should wherever possible be the subject of consultation between the agent and the prosecutor. There is no presumption of electronic recording where questioning is done for the purpose of gathering public safety information under New York v. Quarles. The presumption of recording likewise does not apply to those limited circumstances where questioning is undertaken to gather national security-related intelligence or questioning concerning intelligence, sources, or methods, the public disclosure of which would cause damage to national security.
- Recording is not reasonably practicable. Circumstances may prevent, or render not reasonably practicable, the electronic recording of an interview that would otherwise be presumptively recorded. Such circumstances may include equipment malfunction, an unexpected need to move the interview, or a need for multiple interviews in a limited timeframe exceeding the available number of recording devices.
- Residual exception. The presumption in favor of recording may be overcome where the Special Agent in Charge and the United States Attorney, or their designees, agree that a significant and articulable law enforcement purpose requires setting it aside. This exception is to be used sparingly.
- Extraterritoriality. The presumption does not apply outside of the United States. However, recording may be appropriate outside the United States where it is not otherwise precluded or made infeasible by law, regulation, treaty, policy, or practical concerns such as the suitability of recording equipment. The decision whether to record an interview - whether the subject is in foreign custody, U.S. custody, or not in custody - outside the United States should be the subject of consultation between the agent and the prosecutor, in addition to other applicable requirements and authorities.
- Administrative Issues.
- Training. Field offices of each agency shall, in connection with the implementation of this policy, collaborate with the local U.S. Attorney's Office to provide district-wide joint training for agents and prosecutors on best practices associated with electronic recording of interviews.
- Assignment of responsibilities. The investigative agencies will bear the cost of acquiring and maintaining, in places of detention they control where custodial interviews occur, recording equipment in sufficient numbers to meet expected needs for the recording of such interviews. Agencies will pay for electronic copies of recordings for distribution pre- indictment. Post-indictment, the United States Attorneys' offices will pay for transcripts of recordings, as necessary.
- Effective Date. This policy shall take effect on July 11, 2014.
Announcing the new policy, Attorney General Eric Holder released a video message containing the following statement:
Every day, in big cities and small towns across the country, hardworking prosecutors, agents, and investigators perform exceptional work in order to combat violent crime and other threats to the public. They approach this high-stakes work with the utmost integrity and dedication.
The professionalism of our personnel gives us the confidence to be as transparent as possible about how we perform our work. We at the Department of Justice are committed to ensuring accountability and promoting public confidence in the institutions and processes that guide our law enforcement efforts. Doing so not only strengthens the rule of law; it also enhances public safety – by building trust and fostering community engagement.
That’s why we are announcing a new step to raise our already high standards of accountability. The Department of Justice is instituting a sweeping new policy pertaining to interviews of individuals in law enforcement custody. This new policy, which will take effect on July 11th,  creates a presumption that statements made by individuals in federal custody, after they have been arrested but before their initial appearance, will be electronically recorded. The policy applies in a place of detention that has suitable recording equipment, and it encourages video recording whenever possible and audio recording when video is unavailable. The policy also encourages agents and prosecutors to consider electronic recording in investigative or other circumstances not covered by the presumption.
This presumption in favor of recording applies to statements made by individuals in the custody of the FBI, the DEA, the ATF, and the United States Marshals Service. It allows for certain exceptions—such as when the interviewee requests that the recording not occur or when recording is not practicable.
Creating an electronic record will ensure that we have an objective account of key investigations and interactions with people who are held in federal custody. It will allow us to document that detained individuals are afforded their constitutionally-protected rights. And it will also provide federal law enforcement officials with a backstop, so that they have clear and indisputable records of important statements and confessions made by individuals who have been detained.
This policy will not – in any way – compromise our ability to hold accountable those who break the law. Nor will it impair our national security efforts. On the contrary: it will reduce uncertainty in even the most sensitive cases, prevent unnecessary disputes, and improve our ability to see that justice can be served.
Federal agents and prosecutors throughout the nation are firmly committed to due process in their rigorous and evenhanded enforcement of the law. This new recording policy not only reaffirms our steadfast commitment to these ideals – it will provide verifiable evidence that our words are matched by our deeds. And it will help to strengthen the robust and fair system of justice upon which all Americans depend – and which every American deserves.
Criticisms of the previous DOJ-FBI non-recording policy.
A substantial number of knowledgeable commentators, including federal and state court judges, have lodged severe criticisms of the previous FBI policy that discouraged - indeed, virtually eliminated - recording of custodial interviews. The following examples are arranged chronologically.
United States v. Azure, No. CR-99-30077, 1999 WL 33218402, at *1-2 (D.S.D. 1999). Federal Magistrate Judge Mark Moreno and District Court Judge Charles B. Kornmann both denied the defendant’s motion to suppress a statement taken by an FBI agent. However, in his opinion, Judge Kornmann wrote:
The Court has conducted a de novo review of the motion to suppress a statement (Doc. 25), the report and recommendations from Judge Moreno (Doc. 43), to transcripts (Docs. 33 and 42), and the exhibits (Doc. 39).
This is another all too familiar case in which the F.B.I. agent testifies to one version of what was said and when it was said and the defendant testifies to an opposite version or versions. Despite numerous polite suggestions to the F.B.I., they continue to refuse to tape record or video tape interviews. This results, as it has in this case, in the use, or more correctly, the abuse of judicial time, both from the U.S. Magistrate Judge and from the U.S. District Court, which should not occur. Private investigators routinely tape interviews and statements. All South Dakota Highway Patrol officers have tape recorders in their vehicles and tape all interviews conducted in a patrol vehicle. The taping is done by the Highway Patrol Officer without the suspect even being aware that the interview is being taped. Psychologists interviewing children in suspected child abuse cases are told by their professional societies to video tape all such interviews to ensure as far as possible that no suggestive or leading questions are being asked of the child. All jails in larger towns and cities in South Dakota video tape people arrested and brought to the jail. There is no good reason why F.B.I. agents should not follow the same careful practices unless the interview is being conducted under circumstances where it is impossible to tape or record the interview. These disputes and motions to suppress would rarely arise, given careful practices by F.B.I. agents. The present practice of the F.B.I. enables the agent to take notes and then type a Form 302, a summary of the interview, written entirely by the agent. The agent chooses, in some cases, the proper adjectives. The F.B.I. agent knows in advance of his or her plans to interview a criminal suspect and thus has full opportunity to prepare for the interview. The prosecutor then questions the defendant at trial by showing the defendant a copy of the 302, a document that is unsigned by the defendant and not written by the defendant. The prosecutor then attempts to show that the 302 is equivalent to a statement given by the defendant. It is not equivalent, of course. Both Chief Judge Piersol and this Court have repeatedly expressed our displeasure with F.B.I. tactics as to not taping or otherwise recording statements. Chief Judge Piersol has even spoken with F.B.I. Director Freeh about the problem and the Director was unaware of any such F.B.I. ‘policy.’ The argument that too much secretarial time would be required to type the transcript is a specious argument. First, there is no need to ever type anything in the case of a video tape since the tape is simply preserved until the case is concluded. It can then be used again. Second, there is no need to type or transcribe an electronic tape unless the same is possibly needed at a hearing or at trial. The tape could simply be played to the judge or to the jury or both without typing anything. Tapes cost very little, given all the money spent on law enforcement activities by the federal government. In addition, justice requires the practice whenever possible and cost should not determine the measure of justice and fair treatment of all persons accused of a crime.
In all future cases in the Northern and Central Divisions of the District of South Dakota in which statements taken after November 1, 1999, are not tape or video recorded and there is no good reason why the taping or recording was not done and there is disagreement over what was said, this Court intends to advise juries of exactly what is set forth in this Order and explain to the jury that F.B.I. agents continue to refuse to follow the suggestions of Judge Piersol and the presiding judge in the Northern and Central Divisions of the District of South Dakota and why, in the option of the court, they refuse to follow such suggestions. The prosecutor will also not be allowed to question defendants about the 302’s in the absence of a cautionary instruction and explanation by the Court to the jury. Fair warning has now been provided and it is expected that the United States Attorney will communicate all of this to the Federal Bureau of Investigation so they can decide what to do in the future.
Footnote 3 is as follows:
This writer feels there is little doubt that accurate, contemporaneous recording of custodial statements would facilitate the truth-seeking aims of the justice system, and it would also facilitate review on appeal. Given the inexpensive means readily available for making written, audio, and video recordings, the failure to use such devices may raise some interesting issues. Absent a proven violation of rights in this case, however, it is not a matter within our power to pass upon.
An article co-authored by a Special Agent, published in 2006 in an FBI publication, outlined the advantages of recording custodial interrogations: B. Boetig, et al., Revealing Incommunicado: Electronic Recording of Police Interrogations, pp. 1-8, FBI Law Enforcement Bulletin (Dec. 2006):
Testimony regarding what transpired inside the interrogation room can become tainted if only the participants witnessed what occurred. Conflicting statements by the police and defendant regarding the presentation and waiver of Miranda warnings, requests for an attorney, the use of coercive tactics, and the mere presence of a confession expose the spectrum of issues that can arise.
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Many law enforcement agencies and courts have recognized and accepted electronic recording as a just and viable manner to collect and preserve confession evidence, the single most valuable tool in securing a conviction in a criminal case.
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…As the most accurate and efficient method of collecting and preserving confession evidence, the benefits of recording to the criminal justice system and community are unequivocal.
Following a 2006 trial in a Chicago federal District Court, in which defense lawyers dissected agents’ reports of unrecorded interviews of the defendants, an FBI agent is reported to have said (Chicago Sun-Times, July 17, 2006):
I think we are going to see more interviews recorded at the FBI. If a person hears that tape, it’s going to be hard to argue with that tape.
Transcript from United States v. Cook, 3:10-CR-522, N. D. Ohio, (Sept. 8, 2011):
Judge James G. Carr: “Twice in my career I’m faced with the fact that had the Bureau recorded the conversation, we wouldn’t be here. I find it a shabby and unjustified practice. Recording is ubiquitous. They videotape with TPD.
Assistant U.S. Attorney: “You’re preaching to the choir. But, that having been said, this is a procedural thing that the government -- when I say the government, I mean my office has no control over.
Judge Carr: “I understand that. Somebody has to tell the Bureau, enough is enough. This kid is looking at 15 years, if I understand correctly. A 20 year old eagle scout. I don’t know whether he’s telling the truth. But I think this matters… I’m sitting here listening to that kid and wondering, you know, maybe he’s telling the truth. Implausible as it seems, incredible as it is; nonetheless, we wouldn’t be here…It’s not necessary for us and the jurors and everybody else to take the time and money when the Bureau, as far as I’m concerned, has absolutely no reason not to do it. It gives the Bureau an edge. These guys come in here with their badge, their experience, their professional demeanor in testifying, and it’s impossible not to believe them. It’s impossible. It really is.
Assistant: “So you’re doing this in order to get them to change their policies?
Judge Carr: “No, I’m doing it because it’s fundamentally unfair. It is fundamentally unfair. They do it deliberately because they know it gives them an edge. And that’s not right. It’s not the way the government should function. It recorded . . . hundreds of hours of [name] . . . the plant in the terrorism case. Hundreds of hours. Peep hole cameras, gym bags; they can do it. There’s no excuse not to. Highway patrol does it. I’d be willing to bet every major police department in this state does it. There’s no excuse. I’m yelling at you, I’m sorry, but I’m really upset. This is 15 years of the kid’s life. He may deserve it. The stuff we saw yesterday is appalling. He deserves a stiff sentence if he did it. And we could know one way or another what the truth was about what happened in that closed interrogation room. I don’t like thinking that an FBI agent might lie, but there’s a sure and certain way I would know whether that’s true or not. This case wouldn’t be here. If they had a recording, [defense lawyer] would have pled, or you wouldn’t have indicted. End of discussion.
“…And we all know and the last five years have shown us there are plenty of false confessions. People who are totally innocent. Has it happened in this case? Who knows. That’s for the jury to decide. But I am sick and tired of the Bureau coming in here and taking that edge. It’s a violation of fundamental due process as far as I’m concerned.
“ … I paused for a moment and said, you may step down. At that moment I thought about saying, well, agent, you didn’t record it, did you? No. Why not? Bureau policy. Does the Lima P D record? Does the Allen County sheriff? Do you know whether the Toledo police department records? The Ohio state patrol when they have a traffic stop?
“I’m going to be very candid. Agent [name], I know it’s not your job to change policy. But as [the Assistants] probably told you, I am deeply disturbed that the FBI continues its incomprehensible policy of not recording interviews. We spent this week for one reason and one reason only in this case, because the Bureau does not record interviews. Shame on the Bureau. It makes no sense. It gives the Bureau an unfair advantage. You come in here in your coat and tie and say I’m from the FBI and I do not lie, and everybody believes it. You already come in with an overwhelming advantage because of the Bureau you work for and the esteem and respect in which we all hold it, myself included. I’ve worked with your agents for more than 30 years. And quite candidly, rarely, if ever, have I had a question about their veracity. But it enhances the advantage you already have and the government already has not to record interviews. They tape record, they videotape them across the street, across the mall in Toledo police department. You have an undercover operation, you wire the informant for every single drug transaction. Why do you do it? Best possible record. That’s why. But you get in an interrogation room with nobody else except a 20 year old defendant, and you -- your Bureau sees fit at that moment, the most crucial moment of any investigation, not to record what he says and what you say. You collectively incorporated. And that’s shameful. It’s intolerable in any society under any government that values the rights of its citizens to a fair trial. I know my saying this is out of role and perhaps out of place. I know that there is nothing you can do about it. But quite simply, somebody has to tell the Bureau, there’s at least one federal judge in whose estimation the FBI diminishes when it comes in the courtroom and it says, we didn’t record the statement. I was tempted to ask the simple question, what would have been the indisputable proof of what was said in that room? And you would have had to answer, a recording. I was that close to doing it. But I decided not to put my thumb on the scales. I’m not so sure next time it happens I will be quite so discreet. This young man is looking at 15 years in prison if he gets convicted. If he did what he did, it’s appalling. It’s insufferable. He deserves to go to prison. But he also deserves the fairest possible trial our government can give him. And every time the FBI does not show up with a recording device, it cheats that suspect and ultimately that defendant. It’s not playing fair. I expect more from our government law enforcement agents. You send in an undercover agents, peephole cameras, you wire rooms, you record by law every conversation that’s heard on a Title 3. But it comes to the occasion when most cases are determined, namely when you sit down in a closed interview room with a suspect. That is the most crucial moment of almost every case in an investigation, the one-on-one interrogation. And you take advantage of that by not recording it. Shame on the Bureau, and tell them I said so. Tell them they can do better. We deserve better. I’ve said enough.
“…I will not tolerate the fundamental unfairness of what the FBI does day in and day out, trial in and trial out, interrogation in and interrogation and interrogation after another. It is unpardonable. In this courtroom in front of this judge it is unacceptable. And it will not happen again or if it does I will give a strongly worded instruction. I will exercise my right to question the agent. And I will also exercise my right to comment on the evidence. Enough said.”
Dueling recorded confessions show FBI agents induced a false confession
In 2011, two children were found murdered in their home on an Indian Reservation in Spirit Lake, North Dakota. This was a federal crime. FBI agents suspected the children’s father, whom they interviewed. After lengthy sessions, the father insisted he couldn’t recall committing the murders, but he finally confessed. Subsequently, DNA was discovered which matched a male baby-sitter; the same agents interviewed him, and he too confessed, but unlike the father, he provided details of the crime previously unknown to the agents. The interrogations took place in a local police station in North Dakota in a room equipped with recording equipment; both interviews were videotaped. At the 2013 federal court trial of the sitter, the defense lawyer played the father’s taped confession, and argued he was the killer, while the Assistant United States Attorney argued the father’s confession to the FBI agents was false. The jury convicted the sitter. After the jury convicted, the United States Attorney stated that he favored electronic recording of all custodial interrogations.
The tape made of the father’s “confession” illustrate how law enforcement agents – including federal agents –may inadvertently suggest to those they interrogate how crimes occurred, and pressure suspects for admissions of guilt. Without the videotapes that graphically revealed the exact evolution of the two interrogations – which agents’ brief written reports customarily do not – the father rather than the sitter may have been convicted of killing his children, and a serious injustice perpetrated. Criticisms of the Drug Enforcement Agency previous non- recording policy
United States v. Plummer, 118 F. Supp. 2d 945 (N.D. Iowa 2000). The defendant was interviewed by state officers and DEA agents. Chief District Court Judge Mark W. Bennett granted the defendant’s motion to suppress his statement on the basis that the defendant made “an unequivocal decision to invoke his right to remain silent.” (118 F. Supp. 2d at 953). In a footnote, he wrote (F. Supp. 2d at 951, n.6):
The court again notes that this factual conflict, indeed the entirety of Plummer’s motion, could have been easily resolved if the officers had videotaped or otherwise recorded their interaction with defendant Plummer.
In the body of his opinion, Judge Bennett wrote (118 F. Supp. 2d at 946-47):
This motion to suppress reminds the court of one of Akira Kurosawa’s classic films, RASHOMON, where the director takes an apparently simple story and complicates it by filtering it through the perceptions of four different witnesses. Here, four state law enforcement officers working with the Tri-State Drug Task Force testified to four slightly altered versions of the events surrounding the defendant’s being informed of his constitutional rights as required by Miranda v. Arizona…while the defendant provided the court with a contrasting account. Resolution of this factual conflict, indeed the entirety of the motion to suppress, would be unnecessary if the officers had videotaped or otherwise recorded their interaction with the defendant. The interview room where the questioning took place had videotaping capability. Their failure to videotape the events surrounding the interrogation of the defendant was done pursuant to an edict of the United States Drug Enforcement Agency which proscribes its officers from recording the questioning of suspects.
The continued failure of federal law enforcement agencies to adopt a policy of videotaping or otherwise recording interviews leads invariably to the proliferation of motions such as the one currently pending before the court. The court, therefore, is considering adopting policies similar to those implemented by Judge Kornmann in Azure.
The room has no two-way mirror but does have the capacity for audio and video monitoring. The room also has videotaping capabilities but no videotaping occurred here pursuant to the United States Drug Enforcement Agency’s (‘DEA’) policy of not recording or videotaping interrogations. (Footnote 2)
Officer Cheshier testified at the evidentiary hearing that it was his understanding that the reason underlying the DEA’s policy for not videotaping interrogations was to preserve uniformity in the evidence of all interrogations. As explained by Officer Cheshier, the DEA believes that because not all questioning that occurs in the field can be recorded or videotaped then no interrogations should be videotaped. This explanation is at least suspicious and at worst ludicrous. The court notes that Iowa State Troopers have videotape recorders in their patrol cars and the capacity to make audio recordings of conversations that occur in those patrol cars. Moreover, small audio tape recorders have been widely available for a great many years and small hand held videotape recorders are now available. Indeed, State law enforcement officers have previously testified before this court about their ability to record statements. There is simply no good reason why DEA agents could not make audio or video recordings of virtually all interrogations that occur. Even if occasionally a law enforcement officer in the field were unable to record his or her questioning of a suspect because of environmental factors or mechanical malfunctions, this does not support the officer’s failure to record statements under the conditions which existed here. Indeed, Officer Fellin actually used the audio video monitor in the interview room here to watch portions of the interrogation but simply elected not to use it to record the interrogation. Thus, left with no rational explanation for the DEA’s policy against videotaping or recording on interrogations, the court is left with the inescapable conclusion that DEA’s offered reason for not videotaping or recording statements is totally pretextual.
United States v. Thornton, 177 F. Supp. 2d 625 (E.D. Mich. 2001): The defendant was interviewed by DEA agents, and signed a written confession. District Court Judge Arthur J. Tarnow granted the defendant’s motion to suppress both her oral and written statements, saying (177 F. Supp. 2d at 627-28):
The court finds, after considering all of the circumstances surrounding the confession, that Ms. Thornton’s confession was involuntary and must be suppressed.
The Court notes that neither the interrogation nor confession were audio or video taped. While electronic recording is not a constitutional requirement, there is a ‘heavy burden’ on the government to show a suspect’s waiver of rights was knowing and intelligent. Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). To that end, several jurisdictions in the United States have instituted mandatory taping of confessions, waivers of Miranda rights, and interrogations, such as Alaska and Minnesota, while many more tape voluntarily. It certainly harms the prosecution in a close case when the court cannot evaluate the actual confession. The Court recommends that the DEA electronically record future interrogations and confessions so a reviewing court can full evaluate whether a confession violates Fifth or Fourteenth Amendment.
United States v. Mansker, 240 F. Supp. 2d 902, 910-11 (N.D. Iowa 2003): Chief Judge Bennett upheld a jury verdict of guilty, but in the course of his opinion he referred again to the DEA policy of not recording custodial interviews:
Nevertheless, the court is troubled by the agents’ practice of destroying their notes after typewritten summaries have been prepared because it is a subversion of the truth-finding process, which this court refuses to sanction as a tolerable practice. This court criticized a parallel law enforcement practice in United States v. Plummer, 118 F. Supp. 2d 945 (N.D. Iowa 2000). In Plummer, the issue before the court on a motion to suppress revolved around whether and how a defendant was Mirandized. Had the interrogation been videotaped, resolution of the factual dispute would have been unnecessary. But, an edict of the United States Drug Enforcement Agency proscribed its officers from recording the questioning of suspects. Id. at 947. In Plummer, the court cautioned that, if law enforcement officers refused to adopt a policy of videotaping or otherwise recording interviews, it would likely adopt Judge Kornmann’s approach in the District of South Dakota:…
When questioned, neither the case agent nor the prosecutor could articulate any legitimate justification for destroying handwritten notes after they had been reduced to a finalized report. Because there is no legitimate reason for destroying rough notes and because of the danger their destruction poses to the integrity of the criminal justice system, the court is seriously contemplating entering an administrative order that no federal law enforcement officer or state officer working with the Task Force in the Northern District of Iowa, absent a satisfactory explanation for the destruction of their rough notes, will be allowed to testify if the officer destroyed his or her notes after preparing a finalized report.
United States v. Lewis, 355 F. Supp. 2d 870, 871-73 (E.D. Mich. 2005), involved a defendant who was questioned at the local DEA headquarters. The defendant’s oral statement to the agents was summarized on DEA Form 6 Report of Investigation. In his opinion granting the defendant’s motion to suppress the statement, District Judge Avern Cohn said:
While video equipment and audio cassette equipment was available at the DEA headquarters, as a matter of policy interviews such as those which occurred on June 5, 2003 are not recorded. The Assistant United States Attorney prosecuting the case advised the Court:
‘DEA policy does not prohibit the recording of statements. Rather, the policy requires the recording of statements if the agents request that the interview be recorded and the defendant consents to the video or audio recording. While the recording of interviews would certainly make for less litigation over suppression issues, the government continues to believe that case law does not require suppression simply because the agents chose not to record the interview.’
The notion of recording interrogations is not new, nor is it uncommon. Indeed, less than a decade after Miranda the American Law Institute proposed recording of interrogations as a way to eliminate disputes over statements made during interrogations. American Law Inst., A Model Code of Pre-Arraignment Procedures § 130.4(3) (1975).
. . . Additionally, the American Bar Association unanimously accepted a regulation in early 2004 that urges law enforcement agencies across the country to videotape interrogations. Id. at 640. On a global scale, Great Britain, Canada, and Australia all require either audio or video recordings of interrogations. Daniel Donovan & John Rhodes, Comes a Time: The Case for Recording Interrogations, 61 Mont. L. Rev. 223, 231 (2000). If law enforcement officers in Australia fail to comply with the requirement, the jury will receive an instruction suggesting any police testimony about a confession may be unreliable. Id.
Affording the Court the benefit of watching or listening to a videotaped or audiotaped statement is invaluable; indeed, a tape-recorded interrogation allows the Court to more accurately assess whether a statement was given knowingly, voluntarily, and intelligently. One legal commentator has noted that ‘some of the most detailed assessments of voluntariness have come in cases of recorded interrogations, which permit judges to parse implicit promises and threats made to obtain an admission.’
One of the reasons Judge Cohn gave for his ruling was that (355 F. Supp. 2d at 873):
the interviews were not memorialized by video or audio recording, notwithstanding that equipment to do so was available, and notwithstanding the fact that one of the officers had previously been involved in an interview situation where the failure to record was criticized, see United States v. Thornton, 177 F. Supp. 2d 625, 628 (E.D.Mich. 2001).
Commentary re past DOJ non-recording policy:
The DOJ policy which discouraged agents from recording their custodial interrogations is difficult to square with the truism contained in Senior District Judge Robert Van Pelt’s opinion in Hendricks v. Swenson, 456 F.2d 503 (8th Cir. 1972). That case involved a defendant who was convicted in state court, who argued that his constitutional rights were violated by the local law enforcement officials by video recording his confession. Judge Van Pelt observed (506-07):
…a video tape is protection for the accused. If he is hesitant, uncertain, or faltering, such facts will appear. If he has been worn out by interrogation, physically abused, or in other respects is acting involuntarily, the tape will corroborate him in ways a typewritten statement would not. Instead of denying a defendant his rights, we believe it is a modern technique to protect a defendant’s rights.
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We must recognize that the capacity of persons to observe, remember and relate varies as does their ability and desire to relate truly. For jurors to see as well as hear the events surrounding an alleged confession or incriminating statement is a forward step in the search for truth. And after all, the end for which we strive in all trials is ‘that the truth may be ascertained and the proceedings justly determined.’
It is also difficult to reconcile the previous DOJ policy which discouraged agents from recording their custodial interrogations, with the awards made by the Department’s Office of Justice Programs, Bureau of Justice Assistance, to eight state agencies (CA, CT, LA, MS, MO, NM, NC, TX) for the purchase of video recording equipment to support their recording of custodial interrogations; and to the injunction imposed by the federal court in Detroit at the urging of DOJ lawyers, requiring Detroit police to record custodial interrogations of persons suspected of serious felonies. Harlin v. City of Detroit, No. 04 70922, Dkt. 110 (E.D. Mich. Jun. 22, 2006).
Citation: Marine Corps Inspector General Program, Investigations Guide, August 2009.
Section 6-2, Categories of Evidence. 4. Oral Statements.
- Testimony. (1) Testimony is defined as a sworn and recorded oral statement . . . . Testimony is the primary means of gathering evidence in investigations, and IGs may use it in inquiries . . . . (2) Verbatim testimony may not always be practical. If assets or time are limited, take sworn and recorded testimony and initially prepare a summary in Memorandum for Record (MFR) format. …Keep in mind that the purpose for recording is to make an accurate record of the interview. For accuracy, you may record interviews even if you do not intend to prepare a verbatim transcript. When in doubt, record!
Citation: U.S. Naval Criminal Investigations Manual, Dec. 2008, Chapter 36-11.
“The recording of interrogations by overt video or audio means within the confines of an NCIS [Naval Criminal Investigations Service] facility having the technical capabilities for such recordings shall be accomplished in all investigations involving crimes of violence…” § 36-11.1.
…It is envisioned that all NCIS components will eventually become technically capable to record interrogations, consistent with the guidance provided below” § 36-11.2.
The entire sessions, except for when a person is conferring with their lawyer or with a chaplain, shall be recorded from the time the person being interrogated enters the room until the time he/she departs, to include the statement taking process” § 36-11.3e.
Agents should consider use of this investigative tool in all investigations.” § 36-11.10.
Signs shall be posted at each entrance to rooms used for interrogations. “Room subject to audio/video recording at all times,” translated in foreign countries into the native language § 36-11.3a.
Circumstances that excuse recording: “A decision not to record may be made by the SAC [Special Agent-in-Charge], or the supervisory designee, when circumstances of investigative environment dictate that recording would be counterproductive or otherwise impede the interrogation” § 36-11-1. If the decision not to record interrogations relating to crimes of violence, the rationale for that decision and the identity of the supervisor who made the decision shall be annotated in the case agent report. “If the person interrogated objects to being recorded, the recording equipment shall be immediately turned off and remain off throughout the interrogation and statement taking process” § 36-11-3c. Polygraph examinations are exempted from the recording requirement § 36- 11.7.
Factors for consideration by SACs when considering whether to record interrogations are listed in Appendix (3), including “[w]hether the subject’s own words and appearance (in video recordings) would help rebut any doubt about the voluntariness of the statement raised by a person’s age, mental state, educational level or understanding of the English language; or is otherwise expected to be an issue at trial, such as to rebut an insanity defense; or perhaps be of value to behavior analysis” § 4; “[t]he preference of the Military Trial Counsel, the Attorney’s Office, or federal District Court regarding recorded statements” § 5; and “[l]ocal laws and practice – particularly in task force investigations where state prosecution is possible” § 6. If the decision is made not to record interrogations relating to crimes of violence, the rationale for that decision (e.g., the office interview room was not equipped for recording) and the identity of the supervisor making that decision shall be annotated in the CAR [Case Action Report].” § 36-11.4. In joint investigations with another agency that has primary jurisdiction, the other agency’s policy prevails § 36-11.9.
Consequences unexcused failure to record
“The master recording shall be maintained as evidence until the case is fully adjudicated including the appeals process. A ROI shall reflect where the recording was placed into evidence, to include the date and evidence log number. A log shall be established to document any reproductions or copies of recordings. The log shall be maintained in the case file and shall reflect the name of the requestor, the date copies were made, and to whom the copies were provided. A copy of the recording shall not be submitted as part of the closed file.” § 36-11.5
The Guidelines issued by the Treasury Inspector General for Tax Investigations (TIGTA) provide in part:
This section contains the following information regarding investigative interviews conducted by TIGTA-Office of Investigations (OI):
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210.19 Custodial Interviews.
If a subject is in custody or is deprived of his/her freedom of action in any significant way, advise the subject of his/her Miranda rights.
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Obtain a written waiver if the subject elects to waive the right to counsel and the right to remain silent.
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210.19.1 Recording Custodial Interviews. This policy establishes a presumption that the custodial statement of an individual in a place of detention with suitable recording equipment, following arrest but prior to initial appearance, will be electronically recorded, subject to the limited exceptions described in Section 22.214.171.124 below.
126.96.36.199 Requirements. The policy to record in-custody statements applies when the following factors exist:
- Custody, Timing, and Jurisdiction. This policy applies to the subjects of TIGTA investigations, after their arrest for a Federal crime, but prior to their initial court appearance before a judicial officer under Federal Rule of Criminal Procedure 5. Interviews in non-custodial settings are excluded from this policy.
- Place of Detention. The policy applies when the subject is held in a place of detention. A place of detention is any structure where persons are held in connection with Federal criminal charges and can be interviewed. A place of detention includes any TIGTA office, other Federal facilities, and any State, local, or tribal law enforcement facility, office, correctional or detention facility, jail, police or sheriff’s station, holding cell, or other structure used for such purpose.
- Recording under this policy is not required while a person is waiting for transportation, or is en route, to a place of detention. However, no supervisory approval is needed if an agent deems it prudent or necessary to record a post-arrest custodial interview while awaiting transportation or en route to a place of detention.
- Suitable Recording Equipment. This policy applies when the place of detention or the agent has suitable recording equipment.
There is no requirement that interviews not meeting the above criteria be recorded; however, agents are encouraged to consider electronic recording in other interviews, in accordance with TIGTA policy and consultation with a prosecutor.
188.8.131.52 Procedures for Recording Custodial Interviews. Recording under this policy may be covert or overt. Covert recording constitutes consensual monitoring, which is allowed by Federal law. See 18 U.S.C. 2511(2)(c) The decision to covertly record the interview should be discussed with the SA’s supervisor and the prosecutor, prior to arrest.
The electronic recording must begin as soon as the subject enters the interview area and will continue until the interview is completed. When overtly recording, the special agent will start the recording with a preamble that provides the date, time, and participants, as well as a reading (or re-reading if previously read) of the interviewee’s Miranda rights, followed by the interviewee’s acknowledgment and waiver of these rights as is practical. In instances where the recording is conducted covertly, the preamble will be recorded outside the presence of the interviewee and as contemporaneously with the start of the interview as is practical. The covert recording should also address the interviewee’s Miranda rights in the same manner as is described above for overt recordings. Ensure bargaining unit employee subjects are also notified of their right to union representation via IRS Form 8111.
The electronic recording of the interview may be audio only, or both audio and video, if available.
The recordings of custodial subject interviews per this policy will be treated as evidence. The first download of the recording from the digital recording device will be directly to an individual digital media storage device (e.g., DVD-R, CD-ROM). This original copy will be considered “best evidence” and will be preserved as evidence in accordance with Section 190.3.
184.108.40.206 Exceptions to Mandatory Recording of Post-Arrest Custodial Interviews. A decision not to record an interview that would otherwise presumptively be recorded under this policy must be documented by the agent on a separate document (e.g., letterhead memorandum) and made available to, or provided to, the United States Attorney’s Office. Exceptions to the presumption of recording are:
- Refusal by the interviewee. If the interviewee is informed that the interview will be recorded and indicates that he or she is willing to give a statement but only if it is not electronically recorded, then a recording need not take place. Additionally, if the interviewee asks to stop a recording that has already been started but agrees to continue the interview, the agent may cease recording while continuing the interview.
- Public Safety and National Security Exception. There is no presumption of electronic recording where questioning is done for the purpose of gathering public safety information under New York v. Quarles. The presumption of recording likewise does not apply to those limited circumstances where questioning is undertaken to gather national security-related intelligence or questioning concerning intelligence, sources, or methods, the public disclosure of which would cause damage to national security.
- Recording is not reasonably practicable. Circumstances may prevent, or render impracticable, the recording of an interview, such as equipment malfunction, an unexpected need to move the interview, or too many interviews to record with available equipment in a limited timeframe.
Residual exception. The Special Agent in Charge and the United States Attorney, or their designees, agree that a significant and articulable law enforcement purpose (e.g., avoiding disclosure of a sensitive law enforcement technique) requires the interview not be recorded.
The VA Resource Guidebook (July 2004) contains the following under §§ 2,5,3, Witness Interview Process:
Introduction – The interview process is the most integral part of an administrative investigation. The ultimate goal is to discover what really happened….
Recording and Transcribing Testimony – VA policy requires that ‘complete testimony be transcribed, reviewed and corrected. This required (sic) that testimony be taped (sic) recorded, or a court reporter be retained. Witnesses are not allowed to tape record proceedings. They will have an opportunity to have copy of their transcript at the conclusion of the proceeding.