Police

The FBI Closes a Window to the Truth

Why federal investigators should use recording devices

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Modern recording devices are a boon to law enforcement. Wiretaps betray crooks plotting their crimes. Surveillance cameras on city streets identify muggers and drug dealers. Video gear in patrol cars shows drivers who can barely stand, much less walk a straight line.

All these provide devastating evidence in court: Jurors can witness exactly what happened. But when it comes to capturing some of the most important information available for fighting crime, the Federal Bureau of Investigation would rather see no evil and hear no evil.

Agents conducting an interrogation of someone they have detained need a record of what the suspect says. So what do they do? They grab a pen and take notes down on paper. Then they type up an account, just as their forebears have been doing since the Taft administration.

The written account—which is not even signed by the suspect—is all prosecutors have when they want to use incriminating statements against a defendant. It's the FBI's word against the suspect's as to whether he actually said what the agent recalled.

The result at trial is often unpleasant for the prosecution. "You can imagine how the cross-examination goes," sighs Paul Charlton, a former U.S. attorney for Arizona, who does a convincing impression of an incredulous defense attorney. "'Agent Dokes, do you have a recording device? Do you know how to operate it? Agent Dokes, why didn't you use a recording device?'"

Charlton, who was fired by the Justice Department in 2006 for trying (without success) to force the FBI to record confessions in Arizona, had been sorely frustrated by its policy. "We lost cases, we had to plead down cases, we had to drop cases just because of this policy," he recalls in a phone interview.

The Justice Department, finally waking up to the arrival of the 21st century, now has a task force reexamining the virtual ban on recording, which by any reasonable standard is as obsolete as J. Edgar Hoover. But the FBI shows no openness to change.

Spokesman Bill Carter provides the traditional explanations for rejecting recording as a normal practice. He says they can "inhibit frank discussions and end interviews early" if the arrestee is averse to taping.

Maybe so. But the occasional objection from someone being questioned doesn't justify a general policy against taping.

In any event, the FBI ignores a mass of experience acquired by police agencies that make use of modern technology. When I asked Carter if the FBI had looked at their experience for possible lessons to be learned, his refreshingly candid answer was "no."

It would learn a lot from asking them and even more from trying what they've tried. When cops start taping all confessions and interrogations, they suddenly discover that recording devices are their best friends.

Chicago lawyer Thomas Sullivan, a former U.S. attorney for the Northern District of Illinois, has with his colleagues queried more than 800 U.S. law enforcement personnel in departments that routinely tape custodial interviews. Of those departments, Sullivan wrote in a 2008 article in the American Criminal Law Review, "not a single one has expressed a wish to return to non-recorded custodial interviews."

Why is that? Recording the process frees cops from scribbling notes, letting them focus on how the suspect handles himself. Reviewing the tape, they sometimes notice things they missed the first time.

The recording relieves police of having to recall events that may be years old by the time they take the stand. They no longer endure grilling from defense lawyers about whether they gave Miranda warnings or coerced suspects. When a jury gets to see a criminal calmly recounting his crime, a conviction usually ensues.

Here's something else that may interest the FBI: Cops, Sullivan writes, report that "most suspects pay no attention to the recording equipment once the interview begins."

There are other benefits, too. Those being questioned gain protection against police abuse. Judges no longer waste time trying to figure out if statements were given voluntarily. Guilty pleas are more likely, saving taxpayers the expense of trials and appeals.

Law enforcement investigations are supposed to aim at uncovering relevant facts, which can be captured vividly in recordings. The FBI and the Justice Department would benefit from showing that given a choice between more truth and less, they prefer more.

COPYRIGHT 2010 CREATORS.COM

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  1. Good morning reason!

    Nappy time for me.

  2. I’m surprised that a huge federal bureaucracy would not be interested in recording their employees for at least quality assurance.

    Anyway, any recordings that don’t fit the narrative the bureau wants to convey in their prosecution could be “lost” so I don’t know what the hang up is.

    1. Our fine law enforcement folks clearly think it’s better to not have proof of their activities exist in the first place rather than have to lose them after the fact. It’s called government streamlining?

    2. Cops aren’t the best at technology, and “lost” might still be able to be found if they don’t “lose” it properly. Why would they take the risk? It’s not like video recordings usually exonerate the officer involved; since they usually lie, video recordings are nothing but a thorn in their side.

      If you routinely berated customers in your customer service job, would you want recordings of the interaction? Even if occasionally they showed you to be in the right, most of the time they would be a detriment to you.

      1. New Professionalism. Problem solved.

      2. Does this mean I would have to turn in my rubber hose, or could I just muffle it so the smacking sound wasn’t picked up by the recorder? just asking is all.

    3. “I’m surprised that a huge federal bureaucracy would not be interested in recording their employees for at least quality assurance.”
      I’m not.
      Being in the gubermint, what I was surpized (cause I was young and stupid) to learn is how many of our decisions, which are required to be in writing, are not written down. O yeah, we little people are typing our fingers off – but if you make important decisions, that never gets written down. The higher up you are, the more leeway you have to say “Oh, that was some stupid underling – I never thoght that!”

  3. Back in the last century the technology was developed to have three tapes recording simultaneously.

    One is for the officers to use during their investigations. Further copies can be made from that one. Another is given to the interviewee, so they have a record of what was asked and what the answers were, and another sealed copy is stored seperately in case of and disputes about tampering. Not very difficult really.

    1. “Trust, but verify.” Like contracts and voting, testimony can be disputed, so an audit trail is necessary.

      The long-standing advice for anyone being interviewed by a journalist is, “roll your own tape.” Keeps ’em honest- the “60 minutes” rule. Goes double for the FBI, just ask Martha Stewart.

  4. Those being questioned gain protection against police abuse.

    We all know if something dubious happens, there will be a “malfunction” or tapes will get “lost”.

    In other news, American Airlines loses your luggage regardless of your importance.

    1. Alarmingly the bag contained four 9mm Glock handguns, which are now missing.

      Yes. Becuase there aren’t like a million billion of these floating around already.

      1. That is a lot of Glocks. What is the term for 1,000,000,000,000,000 and are you sure you’re right?

        1. 1,000,000,000,000,000 = 1 quadrillion in American English.

          1. That is roughly 143,000 glocks per person. Why worry about 4?

            1. Crap, I’m apparently 142,998 short. To whom do I report to get issued the rest?

              1. Same problem here! 🙁

      2. I think it has less to do with “zomfg guns on the loose!” than it does “someone really really really fucked up”.

        Hilariously enough, The Consumerist had a post a week or two ago that packing an unloaded gun, starter pistol or flare gun in your checked baggage would mean your luggage wouldn’t get lost, because no airline wants to lose a weapon.

        1. I’ve heard that too, but I’m not sure how that would work. Nobody is supposed to know there are guns in a piece of luggage–its against federal law to mark luggage as containing firearms.

      3. I was referring to how common Glocks are.

        I think I got the number “a million billion” from the Simpsons.

    2. Did AA lose the luggage, or did somebody in the TSA put them up to it?

    3. Oy vey!

    4. That is roughly 143,000 glocks per person.

      This actually caused me to laugh.

      1. But I want more glocks, and I want em now!

  5. Justice would be served. Why on earth would police want that to happen?

  6. I’m a lawyer and I interview witnesses all the time. I have the option of recording, but rarely use it on “friendly” witnesses (i.e., witnesses who are not likely to be in trouble for thing we’re talking about) during informational interviews. However, it’s not uncommon to have to impeach even a friendly witness.

    So why not record? for the very reason stated by the FBI in the article: people are far less forthcoming when they are being recorded.

    Impeaching with notes isn’t all that hard either. When one person produced a contemporaneous written account of a conversation, and the other didn’t, most jurors understand the written account to be less subject to the fog and mist of human memory.

    1. Then most jurors are stupid/gullible if they’re willing to take an unsigned statement written from the point of view of the interrogator, er, investigator.

      If people are less forthcoming when being recorded, all the better. The worst possible type of evidence, as I understand it, is witness testimony. It is extremely easy to manipulate memories. It is also easy to take words out of context.

      Given that law enforcement in the US have a disturbingly strong record of outright lying (in addition to being normal fallible humans), I’d hope that no one these days can be convicted just on the say so of some law enforcement agent.

    2. You have the right to remain silent. Pop taught me that right after slapping the bad taste out of my mouth for complaining about what was for dinner. Don’t forget to use your right to shut up.

      1. Unless you were arrested for DUI, then you are forced to be a witness against yourself, and give a breath, blood, or urine sample, or else you are then assumed guilty.

    3. The potential draw backs to recording should be noted as well… not just “they clam up when a recording device is on or near.” What about the more technical concerns, which may be brought up in court? Much of what might be recorded, may create complicated and costly loop-holes. Many interviewers/interrogators do not make recordings because they do not have the time or resources to make full transcripts of the recordings; failing to do so when the recording has been made could render the note-taking and subsequent reporting more vulnerable in court. Perhaps concerns such as these have made the transition to recording slower.

  7. “most suspects pay no attention to the recording equipment once the interview begins.”

    I, OTOH, stare at that red light the whole fucking time.

  8. Slightly off-topic, but a suspected serial killer was arrested through the use of a ‘familial DNA’ search, in which the investigators compared DNA from the crime scenes to the DNA database collected from the prison population and looked for someone that would be a blood relation to the suspect. I’m interested in hearing what others think.

    http://www.npr.org/blogs/thetw…..&cc=fp

    1. If you and your blood relatives don’t do anything wrong you have nothing to fear.

      1. The judges would have also accepted: “Don’t do the crime if a remote relative is doing time.”

        1. And keep your eyyyyyyyyyye on the sparrow.

    2. I think they caught Monty Burns’ shooter this way.

    3. I’m no Due Process expert, but I don’t think it’s unacceptable to follow clues such as familial DNA in an existing database to identify a suspect.

      My only concern would be whether or not the suspect’s DNA can prove he was the killer or he just happened to cross the paths of…what was it 10 women who were all murdered? Cuz if he didn’t do it, he’s the unluckiest SOB in the entire state of California. If he’s innocent he better have 10 rock solid alibis.

      1. I don’t know, Nick, doesn’t it leave a bad taste in your mouth that essentially, all these people in prison, a lot of them for reasons WAY different than being a danger to society, are basically being considered suspects in crimes LEO’s can’t really connect them to? Why are we as a society even okay with DNA databases? I mean once somebody has committed a crime and paid for that crime (or are in the process of paying for that crime) I don’t think you should have access to someone’s gene code forever and ever. Do your job, find a suspect, be like those guys on L&O and find you a discarded soda can.

        1. And just to be clear, the “familial” aspect doesn’t REALLY bother me that much. I think if you are going to leave your DNA at a crime scene, it’s fair game if your son gets caught for some crime and they legally aquire his blood, n it leads to you. Doing a blanket DNA check with EVERYONE who has a sample on file in a prison system, seems kinda no better than cops coming in my neighborhood and searching every house, “just to see what they could find”

          1. Wait, I never said I think everyone should be in a database. I don’t think that at all. I’m saying if the prison database has DNA as a result of processing the prisoner for their crime and that can be used to locate a suspect for an unsolved crime, why shouldn’t it be used? And I agree 100% that there are far too many people in prison for crimes I think should not be crimes. That’s not the issue at all. I can separate my distaste for the laws on the books from the Due Process of locating suspects of crimes that should be on the books such as committing murder. 10 women had their rights violated. Their killer should be caught. Who had their rights violated by the sweep of DNA in the database? Does a prisoner have a right to keep his DNA in the database private? How is that different than him having his finger prints on file? This is not at all like sweeping every house in a neighborhood. It’s more like checking every prisoner’s cell in a place they have no expectation of privacy.

            1. My fingerprints are in the database to obtain a handgun carry permit. I don’t care because I’ll only shoot somebody’s ass for trying to harm me or someone else. As for former felons, their criminal history should remain on file in case they screw up again. There must be law and order for freedom to exist…..unfortunately.

              1. No, because once you commit a crime, the punishment SHOULD be the punishment. These databases create a situation where once someone commits ANY crime, ONCE, they are punished by never having the same amount of civil liberties everybody else has for the rest of their lives.

                My fingerprints are in the database because a cop planted weed on me when I was a teenager and didn’t understand mouthing off to a cop could lead to such things yet. I shouldn’t automatically be a suspect in every case involving fingerprint evidence. On THIS site, you can find where that can be a problem in and of itself- fingerprints can be poorly matched sometimes, and JUST having my fingerprints on file-without my consent- could lead to a conviction for something it didnt do. And what if I DID do it? If I successfully interferred with an abusive hubby’s custody over my child, I deserve an actual investigation, where, MAYBE, you might find evidence of abuse while tracking me down, maybe not, but you really are opening a whole can of worms when officers can violate our natural rights b/c we violated some infraction at some point in history. There is just too much tyranny and the criminal justice system is just tilted too much towards punishment and career making and money making and not enough towards protecting and serving for letting these ppl keep identifiers about all of us forever and ever.

            2. Oh Nick I think that’s a way valid argument- that your usual “invasion of privacy” doesn’t really apply when we can just check a sample we already legally obtained. I think that’s completely valid. However, I do think that does still kinda fall under due process- you are perpetually punishing people and violating their rights FOREVER because of one incident. I’m okay with legally obtained DNA- as in, during an investigation, your DNA was obtained legally, and now they have it and they can hold onto it and test it in the future, you know, like when you are a suspect for something. “Oh we think Bobby the Rapist did this one! Let’s pull up the sample he gave!” I think there’s nothing wrong with that. And- of this particular case, I only know that they did some sort of blanket search of a prison database- but it sorta sounds like a LOT of these DNA samples- just like when my fingerprints were taken- were just part of processing criminals into the prison system. Meaning no investigation, no crime being committed, just they got caught for something, and now their list of inalienable civil rights just got shorter. Along with the list of rights for all those out there that might be related to them.

              1. So Ray Ray, if I borrow $10 from you and never pay it back, would you forget about it and loan me another $10 later? BTW, can I borrow $10 old buddy buddy?

  9. Those guns weren’t lost, they were stolen. The luggage itself finally made its way back to the Israelis, after all. Just without the guns still in it.

    1. I’ll get to the bottom of this BFD. Janet Reno will find those guns……what…you mean she isn’t? Never mind.

  10. They got Martha Stewart didn’t they. The agent’s 2 year-old recollection was accepted AS IF IT WERE TRUE. In fact, the jury had no way of KNOWING, they just had to go by “gut feeling.”

    Lack of recordings is always bad. Sometimes the Government loses. Sometimes, the Defendant loses. But someone ALWAYS loses — Justice.

    But as we know from the Black Panther debacle, the Department of Justice doesn’t support justice.

  11. Plus as we earned in the Libby case, the notes are often inaccurate or get “lost” at critical moments. One FBI agents testified without contradiction that the notes of Libby’s first interview were inaccurate. In his first interview with the FBI Russert apparently told the agent that he may have told Libby about Plame, something at the heart of the case.At trial the original notes (and agent) were “missing” and Russert fudged saying hemight or might not have said that but (years later) he didn’t think he’d told Libby.
    Never agree to be interviewed by the FBI without your atty being present and a video made of the entire interview.

    They are not all liars I’m sure, but some are and some are just dumb and take bad notes or lose them.

    1. Right. And if I recall correctly the Agent in charge was unavailable or something and the agent that did testify was unable to recall details that weren’t even germane to the charges as well as ones that were.

      That case was a sham to begin with let alone the FBI non evidence at trial.

  12. Tell this to Scooter Libby, the DOJ LOST the fbi interview notes. DOJ is criminal.

  13. One of the reasons that the FBI agents do not want to record interviews is that such recording would make the agents’ lies rather obvious. Agents routinely lie to the courts.

    The other reason is simpler: FBI stands for Famous But Incompetent.

  14. Mr. Chapman,

    British police began using recorders in interviews sometimes in the 80’s. I don’t recall the official reason for implementing that decision but the real reason was the increasing numbers of innocent people being convicted of crimes they had not committed.

    I was a military investigator in the UK in the late 70’s and the early 80’s. As an criminal investigator I worked very closely with the various British Constabularies, especially the investigators assigned to the Criminal Investigation Division (CID)

    Shortly after I arrived I was investigating the theft of a USAF owned cargo container full of meat along with the local constabulary. Quite by chance the thieves were apprehended as they were driving the container to London, which, in the rigid jurisdictional domains of the day, meant the London police were the primary law enforcement agency.

    A detective from the neighborhood where all the thieves lived showed up and had all of the villains lined up against the wall. He actually knew all of the thieves and walked down the line asking personal questions and engaging in casual chitchat with them, “Charlie, how’s your Mum’s new hip replacement working out?” “”Very well Mr. Smith, she’s moving around much better these days, I’ll tell her you were asking” After these little comments the detective asked each man “What’s it going to be? Straight cough or verbals?”

    Some of the men were very surly and said “F**k you, copper” and the detective would say “alright then, verbals” Some of the suspects would say, “It’s a fair cop Mr. Smith, it’s a straight cough”

    Setting aside that we speak the same language with the same words I had no idea what was going on, so I asked one of the local detectives (who eventually became a close friend) what was going on and he said “Don’t ask”.

    Skipping ahead a year or so later I was involved in a drug bust of a Brit drug dealer who’d been selling drugs to USAF members. The local police searched his garage and one of the detective pull out a set of scales (damning evidence of drug dealing in Britain in the 70’s) When the detective asked the suspect “What’s this then?” the suspect replied “F**k you, copper”

    Several months later I was required to testify at the suspect’s trial (it was my informant who bought from him). After I gave my testimony I was watching the rest of the trial when the detective who found the scales testified. When the prosecuting attorney asked the detective what the suspect said when the detective confronted him with the scales the detective, pulling out his note book, said, “Quote, you’re too good for me Mr. Brown, them’s the scales I used to weigh my drugs, unquote.”

    My friend who’d told me “Don’t ask” earlier leaned over to me and said “THAT’s “verbals.” “Straight cough” turned out to be a truthful confession.

    That and the rampant racism and class discrimination that was common in the British Constabulary in those days led to some sweeping changes including the mandatory use of recorders in interviews, which are dual recorders so a copy is provided to the suspect or his lawyer.

    I also worked closely with the FBI during and post “Jedgar” and I have to agree that they remain some of the most rigid, old fashion investigators I’ve ever worked with.

    I don’t see them using recorders without some heavy leaning on from the DOJ.

  15. Lying to a Federal agent is a felony. They can lie to you with impunity. It’s your word against theirs. Why would they want recordings?

  16. All interviews should be recorded, both audio & video. And, with modern surveilance cameras, in a formal interview room, the interviewee would never see the camera or mike.
    In the long run, it protects both side.
    Perhaps someday the FBI will be jerked into the 20th-Century (one small step at a time).

  17. Sing it if you know it: David Duchovny, why don’t you love me, why don’t you love me?!

  18. Here’s another point. If the interview is recorded, it can be reviewed by other investigators, who might notice something the interviewers missed – say, a “tell” on the subject during a particular group of questions. Or some apparently irrelevant side comment.

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