When the FBI interviews you it is their word against your. Why? Because they in most cases will not record the interview/ interrogation because this way they can write a summary and claim that in the summary is the evidence about what you said to them in the interview and show this as evidence in court. A jury will more likely believe a FBI agents summary about what you said than to trust your own testimony. They will twist the truth and will lie. This is what they are trained to do.
CALL ME FIRST! DO NOT TALK TO THE FBI EVEN IF YOU HAVE NOTHING TO HIDE.
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Constructing Truth: the FBI’s (non)recording policy
What do John Gotti and the FBI have in common? They both have seemed to be made out of Teflon; only, for the FBI, (and not, eventually, for Gotti), the protective coating has stuck.
President Obama recently surprised many in both parties by extending current FBI director Robert Mueller’s term by two years, intoning that “in his 10 years at the FBI, Bob Mueller has set the gold standard for leading the bureau.” For Obama at least, that “gold standard” has apparently retained its sheen despite a fundamental flaw in the FBI’s truth-gathering apparatus that Mueller (and, to be fair, his modern predecessors as well) supports: the long-defended Bureau-wide policy of not recording interrogations and interviews, a practice that allows the FBI to manipulate witnesses, manufacture convictions, and destroy justice as we once knew it.
Instead of electronically recording its interviews and interrogations, the FBI’s policy is to rely on agents’ typewritten “section 302 reports,” crafted to reflect the supposed substance of the exchange. At such sessions, one agent takes notes by hand while the second agent—in the traditional two-agent FBI interviewing team—conducts the interview/interrogation. Tape recordings are almost never done because such recordation is – believe it or not – against formal written FBI policy. Therefore, the 302 report becomes the sole arbiter of what was, and was not, said; moreover, as we will see below, any interviewee who contests its accuracy risks prosecution. Hence, a potential witness’ script is written – and not necessarily by the witness himself – the moment he opens his mouth in the presence of an agent.
On its face, and in an era where digital recording has become ubiquitous, there seems to be little justification for a policy of not recording interviews. Paul K. Charlton, a now-former US Attorney in Arizona, certainly thought so when he broke ranks and ordered the mandatory recording of any statements from an investigative target in cases undertaken by his office. Charlton’s policy was resisted, and he was fired soon after instituting it. The FBI’s general counsel’s office produced an internal memorandum (PDF), later made public by the New York Times, listing four separate justifications for the non-recording policy. Two of these arguments, it turns out, are weak, a third is laughably weak, and a fourth is terrifying in its practical implications for the fair, and truthful, functioning of the federal system of criminal justice.
Consider, to begin, the two merely weak arguments (all quotations regarding the policy below taken from the FBI’s internal memorandum (PDF)):
First, the presence of recording equipment may interfere with and undermine the successful rapport-building interviewing technique which the FBI practices. Second, FBI agents have successfully testified to custodial defendants’ statements for generations with only occasional, and rarely successful, challenges.
The FBI’s claim that recording equipment undermines the quality of “rapport-building” is highly dubious: Of the 800 U.S law enforcement departments (state and federal) that record interviews, according to a study by Thomas Sullivan in the American Criminal Law Review, none have expressed regret nor tried to return to non-recorded interviews. They found the increased accuracy to be beneficial, and convenient, with no evidence of that ineffable phenomenon of “rapport loss.”
The FBI’s second “merely weak” claim – that there have only been occasional “successful challenges” to FBI agents’ statements in court – is also irrelevant: it speaks to the in-court success of the government’s use of non-recorded statements, and not to the actual fairness or accuracy of the truth-gathering apparatus. The success of dubious, arguably unethical or error-inducing behavior should not be a justification for its continuance.
The FBI then offers its laughably weak argument:
There are 56 fields [sic] offices and over 400 resident agencies in the FBI. A requirement to record all custodial interviews throughout the agency would not only involve massive logistic and transcription support but would also create unnecessary obstacles to the admissibility of lawfully obtained statements, which through inadvertence or circumstances beyond control of the interviewing agents, could not be recorded.
The first part of this argument is easily dispatched: In the 21st century, it is easier to keep track of a digital file/recording than it is a piece of paper, a notepad, or a paper “302 report.” And electronic recorders are ubiquitous; most cellphones and PDAs already have such a recording capacity, and very soon all will. The second part of the argument also makes little sense; if a recorder does not work, or a recording cannot be made for good faith and practical reasons (any of which are very hard to envision, even in theory), the FBI can easily notate that, through no fault of the agent, no recording was possible that day under the circumstances at hand. As the FBI readily admits, juries have long trusted agent testimony. If, for reasons crucial to the investigation, the FBI decides that it simply should not record a given interview, then the agency should be confident enough to justify, publically, its deviation from usual policy. The FBI’s fear, then, seems less that the investigation will be harmed, than that the jury’s perceptions of the strength of the agency’s case will be damaged. Or, put another way: The FBI prefers its own agent’s rendition of the contents of an interview to the actual unfiltered, verbatim record.
The FBI’s truly disturbing final argument in defense of the non-recording policy reinforces such a conclusion:
[A]s all experienced investigators and prosecutors know, 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. Initial resistance may be interpreted as involuntariness and misleading a defendant as to the quality of the evidence against him may appear to be unfair deceit.
The FBI here has made a startling even if inadvertent admission. When viewed in the light of day, many FBI interrogations which lead to confessions might, in the eyes of a jury of reasonable lay-people, be perceived as coercive or misleading. And, of course, what the agency leaves unsaid is that human experience demonstrates that coercive and misleading tactics have a tendency in some situations to produce false rather than true testimony. Therefore, rather than risk such juror skepticism in response to a verbatim recording, the FBI feels that a jury will more likely be led to the FBI’s version of the truth by reading an FBI agent’s form 302 than by listening to the actual interview. The Bureau does not have enough confidence in its own interrogation techniques to trust an impartial jury listening to the words coming out of an interviewee’s own mouth; the agents prefer, instead, to shroud their actions in a veil of bureaucratic forms and subjective reportage.
While it is tempting to write off the FBI’s arguments as the result of a long-standing policy that remains on the books because of bureaucratic inertia, to do so would be foolish and naïve. The spirited justification for the current Form 302 policy, which the FBI’s leadership so vigorously defends when, for example, Congress thinks about changing it, is part of a quite rational, if pernicious, system for paving the way to convictions: The Form 302 Reports combine with a particularly troublesome section of the federal criminal code – Title 18 of the United States Code, section 1001 – to make the perfect cocktail for manipulating witnesses and in effect composing their testimony. Here’s how this system works:
Section 1001—the so-called federal false statements law —provides that it is a felony, punishable by up to five years in prison, to make a material misstatement to any member of the federal government. As such, one of the more ubiquitous counts found in federal indictments is that the defendant, when questioned by an FBI agent, lied. We also know that it is illegal for a person to lie under oath; typically such testimony occurs before a grand jury or court (or congressional committee); we call that perjury, punishable by a separate federal statute.
So what happens when the sole arbiter of what a witness says in an FBI interview is the 302 Report written by an FBI agent? If that witness should later be compelled to testify at a grand jury proceeding (leading to an indictment of the target of the investigation) or at the trial itself, he is under tremendous pressure to testify consistently with what the 302 report claims he told the agents when interviewed. Should a witness give testimony that is in conflict with the 302 report, he opens himself up to a felony conviction –either he had lied to the FBI in his initial interview, or he is lying to the grand jury or the court (or the congressional committee) in his testimony. Either way, he remains stuck between the Scylla of perjury and the Charybdis of a false-statements charge. Few question the veracity of the 302 report; after all, who will a jury more likely believe, a single witness or two upstanding FBI agents swearing that what they wrote in their 302 report accurately represents what the witness said when interviewed? When the feds suspect that a witness might tell a tale at the grand jury or at trial that is inconsistent with the prosecution’s favored factual scenario, the prosecutors will usually show him or his lawyer the 302 report. It becomes clear to the witness that he either must stick to the 302 version, or else risk a false statement or perjury charge when he testifies differently under oath.
This little known but quite ubiquitous system is one of the reasons that Harvard Law professor Alan Dershowitz coined his oft-quoted aphorism that federal prosecutors and FBI agents teach witnesses “not only how to sing, but how to compose.” We are all familiar with witnesses’ being offered favors – such as leniency – in exchange for prosecution-friendly testimony. But the system that relies upon the non-recording policy and the 302 reports elicits prosecution-favorable testimony not by promised favors, but rather by very effective threats. And such government-scripted testimony extracted from a witness by this subtle device is not subject to the common attack made by lawyers against testimony given due to promises of leniency or other rewards. The pressure on the witness is subtle, and the method for extraction of the testimony almost always escapes the jury’s knowledge.
Thus, the 302 reports are not there just to help the FBI report on interrogations; they are key tools for later manipulating witness testimony in a courtroom.
As noted here before, the Department of Justice already can stack the deck against a defendant. In 2008, 90 percent of defendants indicted in federal court were convicted, and around 96 percent of those convicted pleaded guilty, having never stood trial. Already armed with the financial might of the public purse and the ability to utilize pressure tactics and plea bargains to convict almost anyone, the DOJ has added to its arsenal this potent tool for manipulating what is often the most important evidence at trial, witness testimony.
John Gotti, who ultimately was convicted after several unsuccessful prosecutions and died in federal prison, was perhaps versed in the art, made famous in The Godfather film epic, of making witnesses offers that they could not refuse. As those involved in today’s federal criminal justice system understand, some modern-day practitioners of this art wear government-issued trench coats.