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).
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]. Compliance is mandatory.”
General rule: The Air Force Judge Advocate General’s Online News Service, August 26, 2009, states: “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 regulation provides that required recordings of subject interviews shall be electronically recorded by audio or video equipment (§4.18); the entire interview session must be recorded (§22.214.171.124); the recorders must utilize DVD recording media that yields high quality video and audio recordings (§4.18.9); the consent of the subject is not required if the interview takes place in a police station or an AFOSI interview room or vehicle; signs must be posted in AFOSI waiting areas and outside interview rooms, stating that all persons are subject to electronic monitoring (§4.18.4); and if the person requests electronic recording be stopped, 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,” but if the interviewee persists in the request, the recording equipment is to be stopped (§4.18.4).
The Department of the Air Force Regulations provide: “Electronically recording interviews refers to both video and audio recording.” §4.18. “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.” §4.18. “Recording equipment should be left on throughout the entire interview session.” §126.96.36.199 “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: Attention: All persons are subject to audio or audio and video monitoring while in this facility.” §4.18.4.
Consequences of unexcused failure to record: None given.
Exceptions: ”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. §188.8.131.52.
Preservation: 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
Army and Military Police
The Code of Federal Regulations governing Military Police Investigation provides (32 C.F.R. §637.21):
“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).
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."
DOD Directive No. 3115,09, dated October 11, 2012, with change effective November 15, 2013, is in part as follows:
Subject:: DoD Intelligence Interrogations, Detainee Debriefings, and Tactical Questioning References: See Enclosure 1
1. PURPOSE. In accordance with the authority vested in the Secretary of Defense (SecDef) under titles 10 and 50 of the United States Code (U.S.C.)…to reflect changes in the law and DoD policy concerning the electronic recording of strategic intelligence interrogations, the use of contract interrogators, and the reading of Miranda warnings to foreign nationals who are captured or detained outside the United States as enemy belligerents.
* * *
2. APPLICABILITY. This Directive applies to:
a. OSD, the Military Departments, the Office of the Chairman of the Joint Chiefs of Staff (CJCS) and the Joint Staff, the Combatant Commands, the Office of the Inspector General of the Department of Defense (DoD IG), the Defense Agencies, the DoD Field Activities, and all other organizational entities within the DoD (hereinafter referred to collectively as the “DoD Components”).
b. DoD military personnel, DoD civilian employees, and DoD contractor personnel to the extent incorporated in their contracts, who conduct or support intelligence interrogations, detainee debriefings, or tactical questioning.
c. Non-DoD personnel who agree, as a condition of permitting them access to conduct intelligence interrogations, debriefings, or other questioning of persons detained by the DoD, to comply with its terms.
d. Law enforcement, counterintelligence, and credibility assessment personnel who conduct interrogations or other forms of questioning of persons in DoD custody primarily for foreign intelligence collection purposes…
* * *
4. POLICY. It is DoD policy that:
a. DoD military personnel, DoD civilian employees, and DoD contractor personnel shall conduct intelligence interrogations, detainee debriefings, and tactical questioning of individuals in U.S. or foreign custody in accordance with applicable law, the requirements in this Directive, and implementing plans, policies, orders, directives, and doctrine developed by the DoD Components and approved by the Under Secretary of Defense for Intelligence (USD(I)).
* * *
REQUIREMENTS FOR VIDEOTAPING OR ELECTRONICALLY RECORDING STRATEGIC INTELLIGENCE INTERROGATIONS
1. The requirements set forth in this enclosure pertain only to strategic intelligence interrogations conducted at a theater-level detention facility. DoD Components that elect to record intelligence interrogations, detainee debriefings, or other questioning not subject to the requirements of this enclosure are responsible for marking, protecting, storing, and disposing of these electronic recordings in accordance with the requirements of section 12 of Enclosure 4.
2. The requirement to videotape or otherwise electronically record strategic intelligence interrogations shall be implemented in accordance with the standard operating procedures outlined in Army Memorandum (Reference (ao)) that were developed pursuant to section 10 of Enclosure 2 of this Directive; the implementing plans, policies, orders, directives, and doctrine developed by the DoD Components; the material above the signature of this Directive; and the requirements in this enclosure.
a. Use of Standardized Procedures. Disparate standard operating procedures could create interoperability issues and data storage and retrieval problems. Therefore, each theater-level detention facility will use the standard file-naming convention and standard archiving procedures specified in Reference (ap) to ensure consistency.
b. Equipment Failures. Recording technicians will inspect the recording equipment prior to each interrogation session to ensure that it is functioning properly. If the recording equipment fails for any reason (e.g., mechanical malfunction, power outage), backup equipment (e.g., a battery-powered camcorder) will be used. If the backup equipment fails, the interrogation center commander may authorize the unrecorded interrogation of individual detainees on a case-by-case basis when the information expected to be collected from the detainee is necessary to support ongoing or imminent military operations or to save human life.
In the fiscal year 2010, the National Defense Authorization Act providedthat “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 is videotaped or otherwise electronically recorded.” The “term ‘strategic intelligence interrogation’ means an interrogation of a person . . . conducted at a theater-level detention facility.” The DoD Judge Advocate General is directed to develop related guidelines. (Public Law 111-84, Section 1080.)
On May 10, 2010, the Deputy Secretary of Defense issued a 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. (DTM 09-031.) The expiration date was extended to May 2012.
General rule: 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.
Applicability. 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.”
Exceptions: “…excludes from this requirement 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 for waivers and suspensions of the requirement. Attachment 2, pars. f, i and j.
Consequences of unexcused failure to record: None given.
Preservation: 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.”
Expiration: DTM 09-031 expired effective May 2012, and has not been renewed.
• An article byMajor 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.” (Page 267.)
“[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.)
Federal Commission on Military Justice
In October 2009, the Commission released a report containing recommendations “to advance principles of justice, equity, and fairness in American military justice.” http://www.wcl.american.edu/nimi/cox_commission.cfm. The report includes the following recommendation (pp. 3,12):
“Require military law enforcement agencies to videotape the entirety of custodial interrogations of crime suspects at law enforcement offices, detention centers, or other places where suspects are held for questioning, or, where videotaping is not practicable, to audiotape the entirety of such custodial interrogations.”
• Immigrations and Customs Enforcement
By letter dated August 7, 2012, in response to my FOIA request, 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, and pages 30 to 34, whichcontain 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:
A. The approving official has made a determination that an electronic recording is in the best interest of ICE; and/or
B. The approving official recognizes that one or more of the following special circumstances exist:
1) A juvenile (defined in Section 4.14) needs to be interviewed;
2) The individual refuses to be interviewed unless the interview is recorded;
3) The individual’s apparent ability to comprehend is questionable;
4) The individual cannot read or write, or his or her knowledge of the language used to conduct the interview may be challenged;
5) An investigation has produced limited evidence and the statements by the individual being interviewed are likely to be essential to the prosecution; and/or
6) 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 to through 16.2, and section d of paragraph 16.3, which contain instructions as to the preamble to recordings; handling objection to recordings; and concluding recordings.
• Secret Service
By letter dated August 24, 2012, in response to my FOIA request, 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. “This directive is in effect until superceded.” 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.”
Internal Revenue Service
On May 15, 2008, the Internal Revenue Service added §184.108.40.206 to the Internal Revenue Manual, under the section entitled “Criminal Investigations”:
“Right to Record Interview.
“1. 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.
“2. 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.”
- Commentary: 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.
Until recently, the Department of Justice (DOJ) investigatory agencies –Federal Bureau of Investigation (FBI), Drug Enforcement Agency (DEA), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) – did not require their agents to make electronic recordings of custodial interrogations of felony suspects.
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, 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 attachment to this memorandum is a memorandum from the Deputy Attorney General, addressed to the Associate Attorney General and the Assistant Attorneys General for the Criminal Division, National Security Division, Civil Rights Division, Antitrust Division, Environment and Natural Resources Division, Tax Division, Civil Division, Director, Federal Bureau of Investigation, Administrator, Drug Enforcement Administration, Director, United States Marshals Service, Director, Bureau of Alcohol, Tobacco, Firearms and Explosives, Director, Bureau of Prisons, and all United States Attorneys.
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 puipose 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.”
- Background to the adoption of the new policy.
- The 2006 DOJ proposed recording pilot program.
° In 2006, the DOJ investigatory agencies were asked to submit their recommendations to DOJ headquarters regarding the advisability of a one year pilot program of recording custodial interrogations in the District of Arizona, recommended by the United States Attorney for Arizona. His office had suffered a series of acquittals in cases in which alleged confessions had been taken by agents, using the customary method of note taking, followed by preparation of typewritten reports known as 302s, without making electronic recordings. All three agencies, FBI, DEA and ATF, responded that for various reasons they were opposed to the program.
° In an article published in 2008, I analyzed their reasons for opposition, and found none to be a valid justification for not making electronic recordings, and one to be of questionable propriety and legality. Recording Federal Custodial Interviews, 45 Am. Crim. L. Rev. 1297, 1315-35 (2008).
° The members of the Department’s Criminal Chiefs Working Group – experienced Assistant United States Attorneys selected by the Attorney General from various U. S. Attorney’s offices – were asked their opinions about the pilot program. Their response was:
“Paul [Hahn, USAEO] forwarded your e-mail to me and I circulated it to the Criminal Chiefs Working Group for response. The Criminal Chiefs that replied (about 6) were unanimously in favor of Arizona’s proposal. Our group has met with the FBI within the past year on this issue. I think it is safe to say that there is strong sentiment within the group, and among criminal chiefs nationally, that there should [be] much wider, if not regular, use of recording equipment to record confessions and certain witness interviews.” Email from R. Murphy, USAIAN, to R. Tenpas, ODAG, June 13, 2006.
° While the pilot program was still under consideration, a memorandum authored by a member of the Office of the FBI General Counsel pointed out dangers faced by agents in not utilizing readily available electronic equipment to record interviews of suspects in custody:
“[A]gents testifying to statements made by criminal defendants have increasingly faced intense cross-examination concerning this policy [not to record custodial interviews without approval of the SAC] in apparent efforts to cast doubt upon the voluntariness of statements in the absence of recordings or the accuracy of the testimony regarding the content of the statement.” Memorandum Mar. 23, 2006 at p. 2.
FBI regulations have long affirmatively prohibited agents from recording their interviews without permission of the Special Agent in Charge (SAC) of the local FBI office (MIOG, Part II, Section 10-10(2). The deterrent effect of this policy was explained by a Senior Counsel to the Deputy AG to the Principal Associate Deputy AG:
“The FBI’s current policy creates a presumption that recording confessions is an unwise law enforcement technique. The FBI’s decision to vest the discretion in the SAC to create ‘exceptions’ to its policy, moreover, makes it difficult for any agent (or even the agent’s immediate supervisor) to exercise his or her discretion to record a confession in any particular case or circumstance in which a recording may be warranted. Accordingly, although the FBI argues that it allows its agents the flexibility to record confessions, the practical effect of allowing only the SAC to grant an exception to its policy is the creation of a heavy presumption against taping.” Memorandum from M. Raman to W. Mercer, June 20, 2006, on file with author.
In 2011, FBI regulations were revised to authorize the Assistant Special Agent in Charge (ASAC) to give permission for electronic recording, and to add other related provisions (FBI Domestic Investigations and Operations Guide, 220.127.116.11.16 (U) Electronic Recording of Interviews, pp. 18-34 to 35):
“Special Agents must obtain ASAC approval (which may not be delegated) prior to recording interviews. The requirement to obtain approval is not intended to discourage recording or to indicate that the FBI disfavors recording. Indeed, there are many circumstances in which audio or video recording of an interview may be prudent. Approval to electronically record an interview must be documented on an FD-759. When recording a custodial interview, the recording should include an advice and waiver of Miranda rights, as well as a question and answer segment designed to demonstrate that the interviewee’s statements are voluntary and not the product of coercion.
“After completing the recorded interview, the agent must document the fact that the interview took place in an FD-302, noting the identity of the individual recorded and the details of the recording session (e.g., date, time, start and stop periods, reasons for stopping). FBI employees may include a summary of the recording in the FD-302 if doing so will aid them in the management of the investigation. Transcription of the recording is optional.
“Establishing within a field office reasonable standards for the types of investigations, crimes, circumstances, and subjects for which recording may be desirable will help maintain internal consistency. The following factors will assist the ASAC in determining whether to approve a request to record interview or interviews. These factors should not be viewed as a checklist; they are not intended to limit the discretion of the approving official and are not intended to suggest that there is a presumption against recording.
“A) Whether the purpose of the interview is to gather evidence for prosecution, or intelligence for analysis, or both;
“B) If prosecution is anticipated, the type and seriousness of the crime, including, in particular, whether the crime has a mental element (such as knowledge or intent to defraud), proof of which would be considerably aided by the defendant’s admissions in his own words;
“C) Whether the defendant’s own words and appearance (in video recordings) would help rebut any doubt about the voluntariness of his confession raised by his 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 may be of value to behavioral analysts;
“D) If investigators anticipate that the subject might be untruthful during an interview, whether a recording of the false statement would enhance the likelihood of charging and convicting the person for making a false statement;
“E) The sufficiency of other available evidence to prove the charge beyond a reasonable doubt;
“F) The preference of the USAO and the Federal District Court regarding recorded confessions;
“G) Local laws and practice-particularly in task force investigations where state prosecution is possible;
“H) Whether interviews with other subjects in the same or related investigations have been electronically recorded; and
“I) The potential to use the subject as a cooperating witness and the value of using his own words to elicit his cooperation.” (Emphasis in original.)
• Criticisms of the previous FBI non-recording policy
A substantial number of knowledgeable commentators, including federal and state court judges, have lodged severe criticisms of the FBI policy that discourages - indeed, virtually eliminates - 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 A. 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.”
° United States v. Torres-Galindo, 206 F.3d 136, 144 (1st Cir. 2000), by Chief Judge Juan Torruella:
“Finally, appellants argue almost in passing that their Fifth Amendment rights were violated by the FBI’s practice of not recording confessions, preferring instead to rely on the testimony of the interviewing agent. While the Court recognizes that this practice is susceptible to abuse, the appellants have offered us no evidence or argument that would indicate any impropriety in this case. Nor have they articulated how such impropriety, were it present, might constitute a violation of their Fifth Amendment rights. Even if we shared appellants’ frustration with the FBI’s practice, the claim is without merit.”
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.”
° In a case tried in 2005 in a Philadelphia federal court which resulted in an acquittal of a defendant who had given a lengthy unrecorded interview, a juror was quoted as saying, “My advice to the FBI would be to tape their interviews.” D. Caruso, Policy against taping interviews key in acquittal, Pittsburgh Post-Gazette, Feb. 6, 2005, at B1.
° 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.
* * *
“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.
* * *
“…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.”
° In State v. Sanders, 775 N.W.2d 883 (Minn. 2009), an FBI agent testified at a state court criminal trial about his lengthy, unrecorded interrogation of a felony suspect. The defendant claimed he did not waive his Miranda rights. The majority held that admission into evidence of the agent’s unrecorded interrogation taken outside Minnesota was harmless error. “The FBI agents did not record the session, because it is national FBI policy not to audiotape or videotape interviews. [Agent] Burke was unaware of the recording policy in Minnesota.” (775 N.W.2d at 885.) The Court did not reach the question whether the rule of State v. Scales applies to statements taken outside the state (“Sanders was not prejudiced by the district court’s admission of Burke’s testimony.” (775 N.W.2d at 888.) Justice Paul H. Anderson, concurring in the result, stated (775 N.W.2d at 889-90):
“The [State v.] Scales opinion was issued by our court on June 30, 1994, one day before I joined the court. When we adopted the Scales rule in 1994, we were only the second state in the nation to adopt this approach. Our decision to adopt the Scales rule was greeted with considerable skepticism and dissent. Over the years, the wisdom of our decision has been proven and many law enforcement officials now heartily endorse recorded interrogations as an effective law enforcement tool.
“Scales has significantly reduced the number of law enforcement issues confronting the courts. When I first joined our court, we were still dealing with many pre-Scales cases challenging Miranda warnings given by police officers. It was fairly routine for a defendant to question the propriety of an officer’s Miranda warning. The use of Scales has revealed, in the vast majority of cases, the competence and general conscientiousness with which police officers in Minnesota advise defendants of their rights under Miranda. As a result, in recent years, we have very few valid Miranda challenges that have come to our court. This is a good development.
“Further, the use of Scales has in many cases eliminated frivolous and unfounded objections by defendants as to the circumstances surrounding their interrogation. While law enforcement initially feared that by having interrogations recorded it would lose an effective component of its interrogation of defendants, the opposite is true. Not only has Scales revealed that in almost all cases law enforcement does a conscientious job when conducting an interrogation, the recorded interrogation frequently turns out to be some of the best evidence against the defendant. In essence, Scales has resulted in the best of both worlds. The defendant’s rights are protected and law enforcement is more effective.
“I agree with the dissent that the rationale underlying Scales should and does apply with equal force to interrogations conducted both within and outside Minnesota. I do not understand the FBI’s failure to use this proven procedure [electronic recording] especially in light of the FBI’s history in the middle of the 20th Century. During that time period, the FBI frequently took the lead nationally in advising defendants of their rights under the Constitution….”
Justice Alan Page, joined by Justice Helen M. Meyer, dissented, saying (775 N.W.2d at 890-92):
“I respectfully dissent. In State v. Scales, 518 N.W.2d 587, 592 (Minn.1994), we held that ‘all custodial interrogations . . . shall be electronically recorded where feasible and must be recorded when questioning occurs at a place of detention.’ We further held, under our ‘supervisory power to insure the fair administration of justice,’ that courts must suppress any statement ‘obtained in violation of the recording requirement if the violation is deemed “substantial”’ Id. Our purpose in so holding ‘was to prevent factual disputes about the existence and context of Miranda warnings and any ensuing waiver of rights’ by providing courts with an objective record of custodial interrogations. [Citing case.] We were concerned that courts tended to credit statements by law enforcement and, without more, conclude that the defendant waived his or her rights. Scales, 518 N.W.2d at 591 (‘trial and appellant courts consistently credit the recollections of police officers regarding the events that take place in an unrecorded interview’). Even though law enforcement officers testified that the defendant in Scales waived his rights, we were persuaded that recording custodial interrogations was ‘a reasonable and necessary safeguard, essential to the adequate protection of the accused’s right to counsel, his right against self incrimination and, ultimately, his right to a fair trial.’ Id. at 592 (quoting Stephan v. State, 711 P.2d 1156, 1159-60 (Alaska 1985)). Thus, the recording requirement is intended to provide an objective record of what takes place during custodial interviews and to eliminate the need for courts to decide factual disputes about a defendant’s waiver of rights. [Citing case.]
* * *
“…My reading of Scales and its progeny leads me to conclude that the district court and the court of appeals’ holdings are wrong and that we should squarely address the issue. My reading of the record before us leads me to conclude that it cannot be said with any certainty that the verdict was surely unattributable to the error in admitting the unrecorded testimony of the FBI agent.
“The Scales recording requirement is a necessary safeguard, essential to the protection of a defendant’s right to counsel, right against self-incrimination, and right to a fair trial. Scales, 518 N.W.2d at 592. Because we have never limited our concern for a defendant’s rights solely to cases involving Minnesota law enforcement or events occurring solely within Minnesota’s geographical borders, I conclude that the rationale underlying the Scales decision applies with equal force to interrogations conducted both within and outside of Minnesota.
“…Sanders was arrested by FBI agents and was taken to a place of detention and interrogated. The interview was not recorded. By definition, therefore, the Scales requirement was violated. See Inman, 692 N.W.2d at 80. Whether that violation requires suppression of Sanders’ FBI interrogation turns on whether the failure to record the interrogation was a substantial violation of the Scales rule.
* * *
“The admission of the agent’s statement was also prejudicial. In this case, Sanders was not able to defend against the challenge to his credibility resulting from the State’s use of his alleged statements made during the unrecorded interrogation. This credibility battle between an officer and a defendant is precisely the situation we sought to avoid in Scales.
“Here, the State, in its effort to show that the violation was neither substantial nor prejudicial, offered testimony from the FBI agent that Sanders was advised of his rights against self-incrimination, waived those rights, and agreed to be interviewed. This testimony does not address, much less meet, the State’s burden. It, instead, attempts to show that a Miranda warning was given and that Sanders waived his right to remain silent. If a law enforcement officer’s testimony about a defendant’s waiver is enough to meet the State’s burden of showing that a Scales violation is not substantial, then the Scales requirement is meaningless. The note to Model Code §150.3 explains that placing upon the State the burden of showing a violation is not substantial ‘alleviate[s] the dilemma of a court which is confronted with conflicting versions of what took place during the custody of an arrested person.’ The note further states that if a court finds an ‘agency has not taken reasonably adequate steps in good faith to assure compliance . . ., it should give special credence to the account of the defendant.’ Model Code, §150.3 note. In this case, the Scales requirement was violated because there was no recording. Nothing in this record suggests that the State took any steps, much less reasonably adequate steps, in good faith to assure compliance with the Scales recording requirement. Indeed, the record is silent on the actions taken by the State. On that basis, I can only conclude that the unrecorded interrogation constituted a substantial Scales violation warranting suppression of any statements from that interrogation. Therefore, I would end the analysis here, concluding that the district court erred in admitting the FBI agent’s testimony, and grant Sanders a new trial.”
° 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.”
• 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 Mirandav. 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)
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 has 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.’ Paul G. Cassell, Miranda’s Social Costs: An Empirical Reassessment, 90 Nw. U.L.Rev. 387, 487 (1996). ‘Taping is thus the only means of eliminating “swearing contests” about what went on in the interrogation room.’” Id.
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).”
• Criticisms of the Alcohol, Tobacco, Firearms, and Explosives previous non-recording policy
◦ In United States v. Younis, 890 F. Supp. 2d 818 (N.D. Ohio 2012), Senior District Judge James G. Carr granted the defendant’s motion to suppress evidence seized during a traffic stop, and ordered further hearings with regard to the defendant’s subsequent statements. Judge Carr said:
“As I also expressed at the conclusion of the hearing, I am deeply concerned about the failure of Trooper Stanbaugh to record his interrogation. I neither know of nor can perceive any valid reason for any law enforcement agency or officer, where the means to do so are readily at hand, not to record his or her activities, whether during a traffic stop or in an interrogation room. Officers sworn to uphold not just the laws, but also the Constitutions of the United States and the State of Ohio have the most important of all motives – fidelity to that oath – for recording such encounters.”
During the hearing on the motion to suppress, Judge Carr made the following statement:
“We’re here for one simple reason that I find inexplicable, and that is the failure to use readily available equipment permanently to record each and every important incident in the chain of events that brings us here. I do not understand why the trooper can leave his machine running for however long it took to head down the road to the turn around, apparently three or four minutes, I don’t know, but he couldn’t turn it on at least after he saw the first incident. We wouldn’t be here if he had done so. And I haven’t heard a good reason why he did not do so. And I trust that the government will notify the posts in this region that this federal judge expects better of the people who – whom I and every other citizen of this area are paying to do their job. If nothing else we’ve wasted his time today, time that he could have been spent making the turnpike and I-75 safer for us to travel, for want of four or five minutes of recording. I mean, it was at least, I infer, three hours left on the recording device. He indicated this was his first traffic stop. His time being on duty had been spent conveying an earlier arrestee to and from the Lucas County Jail. There is no excuse for that kind of activity. Likewise, we wouldn’t be here wondering just how well Mr. Younis can or cannot understand English and what was said between Mrs. Younis and her husband in the course of translation if Inspector Stanbaugh had, as apparently many other inspectors state highway patrol and every local agency that I’m aware of, routinely records everything that happens during an interrogation. It is inexplicable. It is inexcusable. It is no way to treat citizens. It is no way to treat a court of law. It is no way to treat the Constitution of the United States. And if it is the ATF policy as it is the FBI policy deliberately not to record its interrogations, then I suggest you talk with the U.S. Attorney’s Office about how I will handle that in the future in any case that goes to a jury in front of me. There is no reason for that practice, none whatsoever. And we would not be here unless that practice had not been involved. I am inclined to find that there’s insufficient evidence in this record to find it more likely than not that those traffic offenses occurred. And if I find that the stop was illegal and everything that happened thereafter was illegal. I take the record as I find it. And I simply am not persuaded by the existence of a routine practice not to do something that is easy. It’s not innovative. The equipment is in those cars, it can be turned on and off. If you’re running out of space on the recording chip, you’re in the vicinity of a patrol post, go in, download it, clean it up, and record.”
- General federal court criticisms of DOJ previous non-recording policies
° Some years ago, a federal District Court judge from Oklahoma wrote me, "I came to the bench three years ago after 29 years in civil practice. I find it ironic that if the cost of repairing a car is at stake in a civil case, the defendant's account of the matter (i.e., his deposition) is meticulously recorded, but agencies with ample opportunity and resources to do so fail to record statements where liberty or perhaps even life are at stake."
° In Giles v. Wolfenbarger, No. 03-74073, 2006 WL 176426 (E.D.Mich. Jan. 24, 2006), rev’d. and vacated on other grounds, 239 Fed. App.145, 2007 WL 1875080 (6th Cir. 2007), a habeas corpus petition challenging a state court conviction for murder, Wolfenbarger was questioned in a hospital where he was recovering from surgery for two gunshot wounds. At the evidentiary hearing, the officer testified that in his 14 years in the Homicide Section, neither audio of video recording was done. District Court Judge Tarnow (author of the Thornton opinion, above) stated, “Respondent’s case is weakened by the lack of an audio or video record.” He then quoted with approval from an article written by the author of this Compendium:
“In the past few years, the many benefits of complete audio or video recording of custodial interviews have become increasingly apparent to all parties. For suspects, recordings expose abusive tactics and falsehoods about confessions. For law enforcement officials, recordings spare them from defending unfair charges of using heavy-handed methods or misstating what occurred. Furthermore, prosecutors and defense lawyers no longer engage in courtroom disputes as to what took place: the interviews may contain exculpatory statements favorable to the defense, or admissions which strengthen the prosecution’s case, but in either event, the record is clear and conclusive. Trial judges and reviewing courts no longer have to evaluate conflicting versions of what happened. Unlike the customary interview during which the police make handwritten notes and later prepare a typewritten report, electronic recordings contain a permanent record of the event, leaving no room for dispute as to what officers and suspects said and did.”
° United States v. Mason, 497 F. Supp. 2d 328, 335-36 (D.R.I. 2007). District Court Judge Smith was dealing with law enforcement officers from Providence, Rhode Island, but, in denying defendant’s motion to suppress, he sent a message to both federal and state law enforcement personnel (497 F.Supp.2d at 335-36):
“Courts and commentators have consistently struggled to understand the resistance of some in law enforcement to certain practices that offer the possibility of increasing the reliability of evidence in criminal cases. [Citing Mansker and Azure, above, and Lillquist article (2007), see Part 5 below]. And, although some states and communities have taken steps to improve these practices, [citing and summarizing from Sullivan article (2004), see Part 5 below], the majority of departments and jurisdictions continue to eschew specific procedures (in reality, reforms) that would help safeguard against the use of unreliable evidence. Id.
* * *
“Consider this case as an object lesson on the need for contemporaneous recording of surveillance activities. Here we have an extraordinary set of accusations that are tightly interwoven with indicted allegations against the defendant’s own former counsel and staff. Invocation of the Fifth Amendment as to explosive questions directed at police involvement in the corrupt conspiracy lends oblique but highly inconclusive support for the defendant’s accusations. So there are two possibilities: (1) the defendant has concocted an exceptional weave of the allegations contained in the Cicilline/Torres indictment, his own actual experiences, and some newly-minted fabrications into an alleged scheme worthy of a crime novel; or (2) the allegations of the defendant are true. At this stage, there has been no concrete evidence to support a finding that the allegations are true; however (and regardless of how insulted Sergeant Partridge may be by the suggestion) the former seems hard to fathom as well. If the Providence Police had followed the best practices associated with undercover investigations, including documenting the undercover surveillance and the controlled buys and recording their initial interview with co-defendant Isom, there would be no question or doubt about the veracity of the affidavit-and possible no suppression motion. [Here is the reference to footnote 8, quoted below.] When defendants face possible sentences of up to mandatory life in prison, one would think that the quality of the police work would be better. It is for this reason that continued indifference (or resistance) by the Providence Police Department to practices aimed at curbing the problems discussed above risks this Court’s use of corrective measures. These could take the form, for example, of a finding that an officer’s testimony be excluded because its reliability, and therefore probative value, is too low compared to its prejudicial effect, see Fed.R.Evid. 403; or in the form of an instruction to the jury, as part of this Court’s usual instruction on how to judge witness credibility, that such undocumented evidence may be disregarded or that the jury may consider the lack of contemporaneous notes or other evidence in determining whether the officer’s testimony is credible. Where simple and efficient reforms of the investigative and information-gathering stages offer the possibility of increasing the accuracy of criminal convictions, law enforcement agencies should move swiftly toward their implementation. Failure to take action effectively pits these agencies against the truth-seeking process, imperils an already vulnerable criminal justice system and will be met with corrective action by this Court.”
In footnote 8, Judge Smith wrote:
“Lurking in the shadows of this case are other disturbing practices. There is not a single contemporaneous incriminating statement by either defendant (Mason or Isom) that is either recorded or in their own hand. Instead, the only direct evidence linking Mason to the drugs found at 214 Pavilion Avenue (he was not present in the residence immediately before the search) are statements alleged to have been made by Isom during an unrecorded interview in January of 2004 with Partridge. These statements corroborate almost every aspect of the alleged crime but conflict diametrically with Mason’s, Mason’s father’s and Isom’s testimony about the use of the 214 Pavilion Avenue residence. In addition, Isom, who on the stand admitted to a number of incriminating actions including drug dealing, testified emphatically that he never made these statements. That perhaps the only direct link between the drugs and Mason could rest on this unrecorded, and disputed, account raises serious concerns….Although at this point the issue is premature, the reliability and propriety of Partridge’s witness statement recounting Isom’s supposed incriminating statements (and possible other evidence) may at some future point necessitate a more thorough analysis, especially in light of recent empirical research discussing the nature and effect of unrecorded testimony.”
° Judge Smith wrote an email to the author on January 24, 2009, explaining that the government eventually dismissed the Mason-Isom indictment. He added:
“Over the last several years, since the Mason case, I have begun to use a jury instruction that essentially tells the jury that statements from law enforcement officers regarding defendant’s statements, which are not recorded when recording equipment is available, must be viewed with particular caution…I have let it be known that in due course I am going to move to a stronger instruction which includes that language that agencies have refused to adopt a policy of recording in spite of strong encouragement by the court to do so…I continue to believe that federal trial judges will have an important role in influencing the DOJ and the agencies to move in the right direction on this issue.”
• A recording by an FBI agent used to support guilt
° In United States v. Jacques, 784 F. Supp. 2d 48 (D. Mass. 2011). Jacques was interrogated for 6 1/2 hours in an interview room by an FBI agent and a Massachusetts state trooper, during which Jacques admitted committing an arson. The interview was videotaped. In ruling of Jacques’ pretrial motion to suppress, the trial judge ruled in the government's favor on two contentions:
First, Jacques was not under the influence of narcotics (pp. 53-54):
“On the videotaped interrogation, which includes the time during and subsequent to the signing of the [Miranda] waiver, Defendant shows no visible or audible signs of impairment whatsoever. His demeanor and mannerisms appear perfectly normal, and his answers are both cogent and responsive.
* * *
“The videotaped interrogation only reinforces Nurse Passa’s conclusions. As at the outset of the interrogation when he signed the Miranda waiver, Defendant remained cogent and responsive throughout the questioning, up to and including his confession. Defendant’s answers were grammatical, pertinent, articulate, and, in some cases, eloquent. Simply put, he did not show any signs of a weakened mental or physical condition that would make him in any way vulnerable to aggressive interrogation.”
Second, that Jacques was not coerced (pp. 54-56):
“...while the questioning was vigorous and persistent, neither Trooper Mazza nor Agent Smythe took any action that could be deemed a constitutionally offensive method of coercion.
“Significantly, though Defendant stated he well knew he had the option, he never once expressed a wish to terminate the interrogation, or even to take a break from it. He never said he was tired or ill. In addition, Defendant requested and was granted three cigarette/bathroom breaks. Defendant’s age (twenty-four years old) and familiarity with the criminal justice system also weighed against a finding of involuntariness.
* * *
“...Defendant clearly waived his right to remain silent, both by his conduct and by signing a written statement to that effect. Thus, even if Trooper Mazza’s comments could be deemed an implied threat, that threat was directed not at Defendant’s invocation of his Miranda rights, but at his steadfast refusal to provide honest answers (In Trooper Mazza’s eyes) to the investigators’ questions.
* * *
“...Informing a suspect of this intuitive, widely known policy does not constitute coercion.”
• 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.
- Commentary re past DOJ non-recording policy
The DOJ policy which discourages 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, 507 (8th Cir. 1972):
“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 DOJ refusal to have its agents record their custodial interrogations with the awards made recently 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).
Quoted above are Judge Van Pelt’s astute observations in Hendricks v. Swenson, about the accuracy of electronic recordings, compared with the limitations and fallibility of human memory. 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 of defendant’s rights.
Citation: Marine Corps Inspector General Program, Investigations Guide, August 2009.
“Section 6-2, Categories of Evidence. 4. Oral Statements.
“a. 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.
General rule: “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.
Exceptions: “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.
Miscellany: Factors for consideration by SACs when considering whether to record interrogations are listed in Appendix (3), including “Whether 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; “The preference of the Military Trial Counsel, the U.S. Attorney’s Office, or federal District Court regarding recorded statements” §5; and “Local 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: None given.
Preservation: “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 Attorney-Advisor at the Office of the Legal Advisor of the Department of State informed us that State Department personnel do not conduct custodial interrogations or interviews. Some personnel conduct non-custodial interviews as part of official investigations and those interviews may be recorded, but only with the consent of the interviewee.
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