According to reports this morning by the Arizona Republic, National Public Radio, and other outlets, the U.S. Department of Justice has decided that federal law enforcement agencies, including the FBI, will electronically record interrogations of people in custody. This will bring the FBI, DEA, ATF and other federal law enforcement agencies into line with the best practices in law enforcement that have been adopted (in whole or in part) in 20 states and hundreds of individual U.S. police departments, as well as a number of other countries.
Former members of federal law enforcement call this change a “radical departure” and the end of “an insane policy.” These descriptions seem correct, since the FBI has been one of the law enforcement agencies most resistant in the U.S. to change on this issue. The new policy — a presumptive requirement, with exceptions for imminent, life-threatening danger and for national security intelligence-gathering interviews — will take effect on July 11.
(One important fact to note: the information available so far does not indicate whether the new policy will require recording of the entire interrogation — that is, beginning with the administration of Miranda warnings and continuing through to the end of the interrogation. This requirement is absolutely necessary, because without it, interrogations will contain only the confession of the suspect at the end, without showing its full context. I am looking for more information on this now and will post again when I learn something about it.)
As recently as 2006, the FBI said in a confidential memorandum that agents could not record interrogations without the express permission of a senior supervisor. According to the memorandum, agents should generally not record interrogations for several reasons, among them:
[T]he presence of recording equipment may interfere with and undermine the successful rapport building interviewing technique which the FBI practices…[Additionally,] 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.
As to the first idea, there is no evidence to support the idea that recording would interfere with interrogations. According to a 2004 study by Thomas Sullivan, former United States Attorney for the Northern District of Illinois, and his colleagues, none of the hundreds of law enforcement agencies surveyed reported that recording interfered with officers’ ability to interrogate suspects. As for the idea that certain “perfectly lawful…techniques do not always come across” to jurors as proper, that may be because, lawful or not, any juror can see how these techniques — for example, lying to suspects about the result of supposedly iron-clad forensic evidence or polygraph results — smack of deep unfairness and exert a degree of pressure that may — and sometimes does — resulted in false confessions.
As readers of my book Failed Evidence and this blog know, recording suspect interrogations is one of the most important safeguards against wrongful convictions and abuse during interrogations. And law enforcement agencies that have the longest experience with recording back it enthusiastically. For example, Minnesota has required recording of interrogations since 1994. In a 2002 article that appeared in the Washington Post, U.S. Senator Amy Klobuchar, who was then the elected prosecutor of Hennepin County, Minnesota, argued that “videotaped interrogations have strengthened the ability of police and prosecutors to secure convictions against the guilty. At the same time, they have helped protect the rights of suspects…”
The DOJ changed the policy with no fanfare — indeed, without even any announcement. Nevertheless, it represents an undeniable step in the right direction. The facts of any recorded interrogation will mostly be beyond dispute. Needless litigation and motions will be avoided, and cases will move through the system (and usually toward guilty pleas) more rapidly. The worst abuses will be curbed, and a better system will result.