The Department of Justice (DOJ) on May 12, 2014 issued a memorandum creating "a presumption" that the Federal Bureau of Investigation (FBI), Drug Enforcement Agency (DEA), Bureau of Alcohol, Firearms, Tobacco and Explosives (AFT) and United States Marshals Service (USMS) electronically record, if possible videotape, post-arrest statements made by individuals in their custody in a place of detention, essentially FBI and local police offices and detention facilities, where the facility has suitable equipment.  Additionally, agents and prosecutors are encouraged to consider electronic recording in circumstances where the presumption does not apply.  This policy is not intended to create any enforceable rights for arrestees.

This is a significant change and DOJ should be commended.  Historically, the FBI, in particular, has resisted recording conversations and in fact has had a formal policy prohibiting it without special permission from a supervisor.  FBI memoranda stated that recording "may interfere with and undermine . . . successful rapport building techniques" and that "perfectly lawful and acceptable interviewing techniques do not always come across in recorded fashion to lay persons as proper means of obtaining information from defendants."  A transcript of the testimony of an FBI agent in a 2013 trial reads: 

                           Q:  Does the FBI have a policy of recording interviews?

                           A:  We do not record interviews.

Civil liberties and defense lawyer groups have been seeking such a policy for well over a decade.  Indeed, I wrote an NACDL president's column on the subject in December 2002.  The cynical have believed that the FBI refusal to record investigations was in order to allow agents to use tough, deceptive and coercive methods to induce confessions and then testify to a sugar-coated sanitized version of the interrogation.  The more cynical have believed it gave FBI agents a license to lie with impunity about what the defendants said or did not say.

I believe recording interrogation is a win-win situation.  Jurors will be able to see and hear the circumstances surrounding the questioning and the specific words and tones used by the agents and the defendant.  Agents will be discouraged from shading testimony as to their methods and the defendant's statements.  Defendants and defense lawyers will be unable to argue effectively that the defendants did not make the statement they actually did or claim that they were beaten or coerced when they were not.

To be sure, the memorandum does not require, as some civil liberties and defense lawyer groups have advocated, that the recording begin at arrest.  Thus, there still remains the possibility that agents will coerce statements on the way to the place of detention and lie about it or falsely state that the defendant confessed, or that defendants who did make admissions upon arrest will deny it before the jury.

Nonetheless, this is an important positive step toward presenting the triers of fact with accurate best-evidence versions of events so that they will reach a more just determination.  It will reduce the number of unjust convictions and perhaps unjust acquittals also.  Every law enforcement agency — federal, state and local — should adopt such a policy, absent special reasons.  The federal government should require it as a condition of a state police agency receiving federal support.

(I just received notice that Martin Tankleff, who was released from prison in 2007 after serving 17 years upon a wrongful conviction for killing his parents based on a false confession when he was 17 years old, will graduate from Touro Law School this Sunday.  Had Marty's confession been recorded, Marty would very likely not have been convicted.  Marty has vowed to dedicate himself to becoming an advocate for the wrongfully convicted.  Congratulations, Marty; consider this policy a graduation present from DOJ.)

(goldman)