FBI: We'll Decide When You are Lying to Us

Reason contributor Harvey Silverglate was in the Boston Globe over the weekend with a cautionary tale out of the Boston bombing investigation about how the FBI decides when you are lying to it--and the real potential criminal consequences of even talking to them at all.

THOSE CONCERNED with the survival of American civil liberties during the post-9/11 (and now post-Boston Marathon) "age of terror" most commonly fear the federal government's technical ability to record and store virtually all telephonic and electronic communications. But a more immediate threat to liberty lies in what one particular agency, the Federal Bureau of Investigation, refuses to record, as Robel Phillipos is now learning the hard way.

Phillipos is a 19-year-old Cambridge resident, former UMass Dartmouth student, and friend of alleged Marathon bomber Dzhokhar Tsarnaev. He faces charges of making materially false statements during a series of interviews with FBI agents. If convicted, he could get up to eight years in federal prison and a $250,000 fine.

Phillipos underwent four FBI interviews. He is not alleged to have had any advance knowledge of, much less role in, the bombing itself….

FBI agents always interview in pairs. One agent asks the questions, while the other writes up what is called a "form 302 report" based on his notes. The 302 report, which the interviewee does not normally see, becomes the official record of the exchange; any interviewee who contests its accuracy risks prosecution for lying to a federal official, a felony. And here is the key problem that throws the accuracy of all such statements and reports into doubt: FBI agents almost never electronically record their interrogations; to do so would be against written policy.

Silverglate points out that the FBI explicitly defends this policy with a statement that he sums up as: "Translated from bureaucratese: When viewed in the light of day, recorded witness statements could appear to a reasonable jury of laypersons to have been coercively or misleadingly obtained." And the FBI itself is the sole holder of any evidence that could acquit or convict the person accused of lying to them. Not quite cricket, and a charge that in general should be looked at with very doubtful eyes by judges.

Comments

[sarcasmic]

And here is the key problem that throws the accuracy of all such statements and reports into doubt: FBI agents almost never electronically record their interrogations; to do so would be against written policy.

What to do when it is discovered that the notes conflict with the recording?

Ban recordings!

[Fist of Etiquette]

...and a charge that in general should be looked at with very doubtful eyes by judges.

If it ever gets to a judge.

[tarran]

Never talk to the cops. Never talk to the feds. It's easy to say, but hard to do. They will try every trick in the book to make you feel obligated to talk. Don't. They are not your friends.

[Live Free or Diet]

I've drilled this into my kids from birth. Also, if a cop asks you to get out of your car, roll up the windows, exit, close and lock the car. Put your keys in your pocket.

[Austrian Anarchy]

Don't Talk to Police cannot be watched enough. And don't think the FBI are the only cops who do this. In the linked video, a 3L student who is also a Virginia Beach detective, says he records the event then destroys the tape after transcription by his secretary. VA law allows him to do this.

Wouldn't it be nice if we lived in a world that the evidence police have must be preserved and copies given to the accused?

[Some call me Tim?]

But Dunphy told me that cops ARE my friends. They benevolently serve the community and we can't blame them all for the work of a few thousand bad apples.

[Night Elf Mohawk]

When viewed in the light of day, recorded witness statements could appear to a reasonable jury of laypersons to have been coercively or misleadingly obtained.

Maybe for the same reason the sun could appear bright.

Can they prevent you, or your lawyer, from recording?

Don't talk to them.

[Jerryskids]

This is one of the biggest traps in talking to law enforcement, especially when you are just being helpful and know it's not you have done anything wrong but someone you know who is being investigated. Lying to an investigator gives them a threat of obstruction of justice charges against you to coerce further cooperation out of you, If they ask you when the last time you talked to Jim was and you say you had coffee with him on Tuesday and a waitress at the restaurant has the receipt that shows it was in fact Wednesday when you and Jim had coffee, you got a problem.

Of course, there are cases - as in the case of the corporate attorney who was charged with obstruction of justice for issuing a company-wide memo reminding all of the executives of the corporation not to talk to investigators without an attorney present - where simply professing your innocence brings the unfair charge.

[Live Free or Diet]

where simply professing your innocence brings the unfair charge.

I remember somebody being charged for professing innocence. Martha Stewart, maybe?

[Mad Scientist]

Straight from the horse's mouth.

[Killazontherun]

The 302 report, which the interviewee does not normally see, becomes the official record of the exchange; any interviewee who contests its accuracy risks prosecution for lying to a federal official, a felony. And here is the key problem that throws the accuracy of all such statements and reports into doubt: FBI agents almost never electronically record their interrogations; to do so would be against written policy.

Do we need to fight for the rights gained under the Magna Carta all over again?