DOJ should expand recording 'presumption'

For many years, when the FBI (and the other federal law enforcement agencies) would interview a suspect following an arrest, although the ensuing interrogation would be carefully controlled and planned out to the minutest detail, only "low tech" investigative tools would be used to preserve this critical evidence: often a "confession." Typically two agents would interview the suspect, with the lead agent asking questions, and a second agent taking "notes" which would later be memorialized in a written summary called a "302." Settled FBI policy expressly forbade the agents, from using technological advancements, such as audio or video recording devices, to record the interaction, so a court (and possibly a jury) could see and hear for themselves what was said during the "interview." Did the suspect have his Miranda rights read to him, and was the waiver really "knowing" and "intelligent"? Was the putative defendant browbeaten into a confession? Was the so-called confession real or embellished? Did the defendant really confess or did he tacitly "go along" with leading questions? No way to tell for sure other than by way of a swearing contest in court, with the defendant saying one thing, and two veritable beacons of veracity and integrity, the FBI agents, saying another. Most courts tended to believe the agents.

Some courts, however, criticized the practice, finding the policy, archaic at best, and potentially misleading, at worst. In an age when recording technology is no further away than a smart phone or iPad, one district judge in Chicago was troubled by the fact "that the FBI would continue[] its incomprehensible policy of not recording interviews. ... It makes no sense. It gives the Bureau unfair advantage. ... You have an undercover operation, you wire the informant for every single drug transaction. Why do you do it? Best possible record. ... But you get in an interrogation room with nobody else except a 20 year old defendant and ... [the] Bureau sees fit at that [crucial] moment of the investigation. . . not to record what he says and what [the agents] say ...That's shameful. It's intolerable in a society under any government that values the rights of its citizens to a fair trial. ...It's not playing fair. . . . Shame on the Bureau, and tell them I said so. Tell them they can do better." U.S. v. Cook, 2011 U.S. Dist. LEXIS 74333 (N. D. Ohio, Sept. 8, 2011).

The Department of Justice eventually listened. Effective July 11, the FBI will begin to record, by video or audio, interrogations of suspects recently taken into custody. In an internal policy memorandum directed to its three investigative agencies, the DOJ has decreed a "presumption" that its law enforcement agencies will now record interrogations of federal arrestees. The new policy is riddled with exceptions, does not apply to other agencies, and is narrowly drawn to apply only to small fraction of federal investigative interviews: the custodial interrogation when Miranda warnings would apply. Nonetheless, the new policy puts the federal law enforcement agencies in line with nearly all state and local law enforcement agencies - many of whom in fact dutifully record virtually all investigative interviews.

In announcing the new standard, Deputy Attorney General James Cole explained that the policy would establish a "presumption that the [FBI and DOJ law enforcement agencies] will electronically record statements made by individuals in their custody." Although salutary, the change does not go nearly far enough as the vast majority of law enforcement interviews still lie outside the presumption of recording. Although Cole stated that the new "policy also encourages agents and prosecutors to consider electronic recording in investigative or other circumstances where the presumption does not apply," (emphasis supplied) the exception is likely to swallow the rule. The vast majority of interviews, of both suspects and witnesses alike, occur at their homes, offices or in prosecutors' offices, not in custody. The agencies are left solely to decide at their discretion whether to record such interviews.

The case for recording all investigative interviews is strong. In a recent article in The Federal Lawyer ("The Department of Justice's Misguided Resistance to Electronic Recording of Custodial Interviews," July 2012), Thomas P. Sullivan, the former U.S. attorney for the Northern District of Illinois, related that he and his colleagues at Jenner & Block surveyed more than 1,000 state and local police officers and detectives in every state, and validated the nearly universal practice of recording investigatory interviews - especially custodial interrogations. Sullivan reported that "[w]e have yet to encounter one law enforcement officer who desires to return to non-recorded interviews." Why? Local law enforcement agencies reported that they "save time and money, because pre-trial motions to suppress custodial statements diminish and guilty pleas increase" when the full context of the statement becomes "unassailable." The police usually get it right.

Why would federal agencies resist such practices? Let me suggest three possible reasons.

First, whether an interrogation of a putative defendant (in custody), targets (persons not yet arrested) or more routine interviews of possible subjects or witnesses, successful witness interviewing techniques can be compared to legislation: Sometimes it is better (for the jury) not to know exactly how the sausage is made. Officers have been known to lie, mislead or indeed threaten suspects in order to obtain statements favorable to the investigation. A clear record might impinge on a valuable investigative technique.

Second, when the final record of the interview is left to the sole interpretation of the agents, considerable leeway is given to the agents in deciding what constitutes an "admission" or even what statements are "material." Also, when the agents write up a summary of the discussion, inconsistent prior statements are typically eliminated. Prosecutors tend to like that; defense attorneys prefer to see the complete record as impeaching a "converted" prosecution witness with past inconsistent statements is common.

Third, as U.S. District Judge Jed S. Rakoff remarked in a recent speech at USC ("Why Innocent People Plead Guilty," April 7, 2014), innocent people do sometimes wrongfully confess to crimes they did not, in fact, commit. I can attest to this fortunately rare phenomenon. While an assistant U.S. attorney in Los Angeles, I encountered a false confession. The FBI brought me a case of an employee of a Southland defense contractor who, following a failed polygraph examination, confessed to selling the Soviets secrets about the Space Shuttle in the 1980s. The lie detector confirmed the confession. Despite the confession, it turned out that the employee may not have been right - and as no corroborating evidence was ever produced to support the confession, he was not charged with a crime. His security clearance, however, was promptly revoked.

Data has indeed shown that "coercive police techniques and compromised mental states can conspire to produce false confessions," as Jerry J. Cox, president of the National Association of Criminal Defense Lawyers, told National Public Radio. In short, recording witness interviews, including interrogations of suspects, not only protects the accused against police misconduct or investigative misfeasance, it also protects law enforcement against false allegations of police misconduct, while enhancing public safety by ensuring a reliable record is kept. When the system ensures the accuracy of vital evidence gathering techniques, justice is served.

The DOJ should therefore expand the scope of the "presumption" of recording to include all investigative interviews, whether custodial or noncustodial. Exceptions to the policy, such as the so-called "public safety" exception under New York v. Quarles, where a suspect was questioned without Miranda warnings about a gun he left amongst the melons in a crowded supermarket after his arrest, or other unusual circumstances, could be dealt with on a case-by-case basis.

Rather than mere DOJ policy, however - which is purely advisory on the agency and its constituents, while conferring no "entitlement" on suspects questioned in violation of the policy (i.e., the defendant can't move to suppress) - the presumption of recording should be enacted with the force of law, leaving wise district judges to determine whether and why the policy was not followed. Instructions to the jury to the effect that any unrecorded witness statements should be treated with "caution" or special scrutiny, just as juries are told to do with immunized witnesses, would provide a powerful incentive for agents and prosecutors alike to make the presumption of recording a reality. Were this to happen, the search for truth would likely edge closer to reality. We all win when that happens.