FBI Tape Recording Policy Under Review
By Joe Palazzolo | April 30, 2010 12:00 pm

A Justice Department advisory committee is reviewing an FBI policy that encourages agents to document interviews with criminal suspects the old-fashioned way: with a paper and pencil.

The practice has been a point of contention within the Justice Department, particularly as more state and local law enforcement agencies use video and audio equipment to record custodial interviews.

With few exceptions, agents’ handwritten notes, summarized in typewritten documents called 302s, are the only records available to prosecutors and defense lawyers. The policy forbids agents from electronically recording confessions or interviews without authorization by their Special Agent in Charge.

(iStock)

A subcommittee of the Attorney General’s Advisory Committee of U.S. Attorneys recently began examining recording practices nationwide, Justice Department and FBI officials said. The advisory committee is an influential policymaking body whose recommendation bear the weight of the U.S. Attorney community.

In the past, the bureau and other federal law enforcement agencies have strongly argued against proposals that would require agents to electronically record interviews, on the grounds that they could hinder rapport-building, discourage suspects from speaking candidly and expose juries to unsettling interrogation techniques.

“In fast-moving situations and when the two parties are not comfortable with electronic recording, it can be  counterproductive,” said FBI spokesman Bill Carter. While he declined to discuss specific cases, Carter said there were many circumstances in which electronically recording an interview is “prudent” and that the policy allowed for flexibility.

Carter declined to say whether the FBI would oppose changes to the policy while the matter is under review. Justice Department spokeswoman Melissa Schwartz declined to comment.

Proponents say video or audio recordings would reduce legal challenges, make agents sharper in their questioning and allow prosecutors to make better-informed decisions. While the department has never laid bare arguments in favor of amending the current policy, there is a strong sentiment among federal prosecutors that suspect interviews should be electronically recorded more often, if not regularly.

When a U.S. Attorney in the Bush administration ordered electronic recording in his district, a group of criminal division chiefs from federal prosecutors’ offices around the country expressed unanimous support.

Paul Charlton (Gallagher & Kennedy)

The U.S. Attorney, Paul Charlton of Arizona, was among those fired during the controversial purge in 2006.  One of the stated reasons for his dismissal: He had shown poor judgment by implementing the policy before seeking permission from Justice Department headquarters in Washington.

Charlton had refused to withdraw the order, threatening to resign instead. He ultimately agreed to suspend the order after the department promised to expedite his request to pilot the policy in his district. The pilot program was not approved, and Charlton’s successor never pursued the matter.

Charlton, now a partner at Gallagher & Kennedy PA in Phoenix, said he was pleased the department was re-examining the issue.

“Any changes that are made in that regard will be long overdue,” he said. “The FBI has never provided a legitimate law enforcement reason for discouraging the taping of confessions.”

One law enforcement official described the committee’s effort as trying to better understand the FBI’s resistance, when 18 states have laws mandating electronic recording in most cases. Additionally, more than 600 police and sheriff departments around the country use video or audio equipment to document custodial interviews, according to a 2008 study by Jenner & Block LLP partner Thomas Sullivan, a former U.S. Attorney in Chicago who has written extensively on the subject.

The debate over electronic recording is particularly heated in American Indian communities, where federal prosecutors and agents investigate local crimes. Charlton said conflicting state and federal policies created a disparity in justice.

For example, he said, a suspect in Phoenix who confessed in a child sex abuse case would have their confession taped and wielded against them in court, but on a Navajo reservation, the confession would be reflected in a 302, rendering it more susceptible to legal challenge.

“Any attorney worth his salt can attack that confession, beginning with whether Miranda rights were administered and ending with whether any confession was made at all,” Charlton said.
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