DOJ reverses no-recording policy for interrogations

PHOENIX — Since the FBI began under President Theodore Roosevelt in 1908, agents have not only shunned the use of tape recorders, they've been prohibited by policy from making audio and video records of statements by criminal suspects without special approval.

Now, after more than a century, the U.S. Department of Justice has quietly reversed that directive by issuing orders May 12 that video recording is presumptively required for interrogations of suspects in custody, with some exceptions.

There was no news release or press conference to announce the radical shift. But a DOJ memorandum — obtained by The Arizona Republic — spells out the changes to begin July 11.

"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,'' such as in the questioning of witnesses.

An accompanying message from Monty Wilkinson, director of the Executive Office for United States Attorneys, says the change resulted from lengthy collaborative efforts among DOJ and law enforcement personnel. Media representatives at the Justice Department and FBI did not immediately respond to requests for a more detailed explanation.

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, welcomed the turnaround.

"It's a great day," Charlton said. "Really extraordinary. It's a step in the right direction for law enforcement."

"Hallelujah!" agreed Steve Drizin, a clinical professor of law at the Northwestern University School of Law who focuses on false convictions and false confessions. "It's been a long time coming."

Nancy Savage, executive director at the Society of former Special Agents of the FBI, said there's probably no unilateral view from field agents. Although tape recorders sometimes intimidate suspects, she added, the change was probably inevitable because juries have come to expect audio and video evidence.

"This is a radical departure," Savage said. "They want to see it in living color. ... I think it's probably just a move forward."

Attorneys, researchers and longtime critics of the old policy say reform brings federal agencies up to modern policing standards, and removes a stigma that has damaged the credibility of America's criminal justice system. Put simply, in the absence of recorded interviews, defense lawyers have been able to undermine honest testimony by some FBI agents while, in other cases, agents incorrectly remembered, distorted or lied about suspect statements.

The failure to maintain electronic records of interrogations also created gaps in FBI intelligence-gathering, especially terrorism cases. Instead of maintaining an accurate and largely indisputable record, agents on the witness stand for decades have relied on their memories, interpretations and handwritten notes transcribed into a form known as the 302.

Critics have said that flawed system results in botched investigations, lost evidence, unprofessional conduct and false convictions. They noted that the historic DOJ practice was problematic in trials of suspects ranging from terrorist Osama bin Laden to TV star Martha Stewart to Oklahoma City bombing defendant Terry Nichols, and thousands of defendants with no public exposure.

The FBI, considered one of the most advanced investigative agencies in the world, helped pioneer the use of fingerprints, ballistics, electronic wiretaps, psychological profiling and other advanced techniques. Yet, while local police have audio- or video-recorded suspects for decades, some FBI agents and administrators doggedly resisted the use of a device more accurate than the pen.

As recently as 2005, the FBI declined to give The Arizona Republic a copy of its written policy requiring special authorization for recordings, or even to say when and why the rule was created. Bureau assertions that taping of suspects is a logistical problem, or inhibits honest interviews, are generally disputed by street cops, detectives and professors of criminology. In fact, taping of criminal suspects is now mandatory in at least eight states, either by statute or court decrees.

In 2006, The New York Times uncovered another explanation for the DOJ policy, spelled out in an internal FBI memorandum. Basically, it argued that jurors might be offended, possibly to the point of acquitting defendants, if they observed the deceit and psychological trickery legally employed by agents to obtain information and confessions.

Drizin said the FBI has obtained a number of false convictions in homicide cases, particularly on Indian reservations, because suspect interviews were not recorded. Drizin also noted that, in some recent trials, jurors have acquitted defendants because they mistrusted FBI testimony about interrogations that could have been recorded.

Fred Whitehurst, an attorney and ex-FBI agent who turned whistle-blower, said the new policy is "delightful," adding, "What have we got to hide?"

Mel McDonald, a former U.S. Attorney for Arizona who now does criminal defense work, said FBI interrogations involve one agent taking notes while a second conducts the interview. While 302 records and agent memories may be inaccurate, he said, their testimony trumps a suspect's recollection. In fact, a defendant who disputes the FBI statements could be charged additionally 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?"

McDonald hailed the close of "an insane policy" at DOJ, declaring, "Bravo! It's about time. It uses science to establish the truth ... That's a no-brainer."

The DOJ no-taping rule had been partially lifted during recent years for criminal investigations in India.

As an example of the justice benefits, Hammond pointed to the case of Tymond Preston, an 18-year-old Navajo with severe intellectual disabilities who was convicted of child rape. Preston was found guilty, but this month 11 judges on the 9th U.S. Circuit Court of Appeals threw out his confession — which agents had videotaped — and ordered a new trial.

Based on video evidence, the justices unanimously agreed that the confession was involuntary because agents "fed him the details of the crime" and used numerous other coercive tactics.

The new policy contains an exception for public safety situations where a suspect must be questioned instantly to avert an imminent life-threatening danger — the so-called ticking bomb scenario. There also is an exemption for national security intelligence-gathering interviews.

Wagner also reports for The Arizona Republic.