Since the Federal Bureau of Investigations began in 1908 agents have been prohibited from making any recordings of statements by criminal suspects during interviews/interrogations. More than 100 years later, the U.S. Department of Justice has finally issued orders that recording is presumptively required, with exceptions.  There was no news release or press conference, but just a memo that states the changes will take effect on July 11th.

“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,” says the memo to all federal prosecutors and criminal chiefs from James M. Cole, deputy attorney general, “This policy also encourages agents and prosecutors to consider electronic recording in investigative or other circumstances where the presumption does not apply,” for example witness statements.

An accompanying message from Monty Wilkinson, director of the Executive Office for United States Attorneys, states that the change is a result of a lengthy collaboration between the D.O.J. and law enforcement.

Paul Charlton, the former U.S. Attorney for Arizona who was fired by President George W. Bush in part because he challenged the Justice Department’s no-taping policy said after the news became public, It’s a great day. Really extraordinary. It’s a step in the right direction…”  Steve Drizin, a clinical professor of law at the Northwestern University School of Law, who focuses on wrongful convictions and false confessions said, “Hallelujah! It’s been a long time coming.”

Nancy Savage, executive director of the Society of Former Special Agents of the FBI said there’s probably no shared view among the field agents on the issue. Tape recorders, she said, sometimes intimidates suspects, but the change was inevitable because juries expect it. She called it a “radical departure” and said juries want to see it in “living color”.

Attorneys, researchers, and critics of the 100 year long ban says reform brings agencies up to modern standards and helps to remove some of the stigma that has damaged the credibility of the federal justice system.  The failure to maintain electronic records has created gaps in the FBI’s intelligence-gathering, in some cases, allowed defense attorneys to undermine honest testimony (because no one knows what testimony is honest and what isn’t without evidence) and on the flip side allowed agents to accidentally or purposefully lie about defendants.  Instead of maintaining an objective, indisputable record of statements, agents took the witness stand decade after decade solely relying on the fallible human memory, interpretation, and note taking.  The flaws have resulted in unknown and undiscovered amounts of botched investigations, unprofessional conduct, and false convictions. This practice was problematic in such cases as Osama bin Laden, Martha Stewart, Terry Nicholas, and thousands of others who are not high-profile.

The FBI, often called one of the most advanced investigative agencies in the world, have helped pioneer some of the most respected forensic fields, fingerprints, wiretaps, etc. and some of the most controversial and often unreliable, such as hair comparisons, profiling, etc.  Yet, local police have recorded suspects for decades, but the FBI has refused, until now.  As recently as 2005, the FBI declined to provide the media or the public with a copy of the written policy requiring special authorization to record a suspect and also refused to say why. The Bureau has at times insinuated that it provides a logistical problem or inhibits honest, but since at least 8 states have made it mandatory to tape suspect statements, these theories are largely debunked.  In 2006, The New York Times wrote an investigative piece on an alternative explanation for the policy. An internal FBI memo stated that jurors might be offended by their investigative techniques and acquit defendants, if they observed agents deceit and psychological trickery. Lying to suspects is legal in most instances, including about forensic evidence that doesn’t exist, and can be used to elicit a confession.

Drizin said that the FBI has obtained a number of wrongful convictions in homicide cases, particularly of Native Americans, because the interviews were never recorded. In a few recent trials, jurors have acquitted defendants because the interrogations were not recorded because it could have been, which along with other reasons, cast doubt on the credibility of the FBI agent.

Fred Whitehurst, an attorney, ex-FBI agent, and whistleblower said, “What have we got to hide?”

Mel McDonald, a former U.S. Attorney for Arizona, who now works as a defense attorney said, that under the old rules FBI interrogations involved one agent taking notes while the second agent conducted the questioning. He went on to say that records and agent memories may be inaccurate, but they are seen as more reliable then a suspect’s recollection automatically and if a defendant disputes the FBI’s recollection they can be charged with lying to federal authorities.

“I’ve had more clients who told me, ‘That’s not what I said.’ ” McDonald noted, “But you’ve got two agents supporting each other. It’s your word against theirs. Who are they (jurors) going to believe?”

He hailed the decision as a close to an “insane policy”, “Bravo!…[it’s] a no brainer.”

The no-taping policy was partially lifted recently for criminal investigations in India. The benefits of taping interviews have a great example in the case of Tymond Preston, an 18-year-old Navajo with intellectual disabilities who was convicted of child rape. This month, the 9th U.S. Circuit Court of Appeals threw out the confession as unreliable and ordered a new trial. The confession was videotaped, based upon this evidence the 11 justices unanimously agreed that the confession was involuntary and that agents “fed him the details of the crime” and used coercion. Without the videotape, it may never have been discovered that the confession was false.  The new policy isn’t blanket, it contains an exception for “public safety” just like Miranda rights. This exception says that a suspect can be questioned instantly to avert suspected imminent life-threatening danger (“ticking bomb scenario”). There is also an exception for national security.

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