US DOJ: FBI, DEA, ATF Will Record Questioning of Individuals in Custody

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.

 

Microscopic Hair Analysis: 2,000 Possible Cases of Failed Evidence Will Be Reviewed

The U.S. Department of Justice (DOJ), in partnership with the Innocence Project and the National Association of Criminal Defense Lawyers (NACDL), will review 2,000 cases in which microscopic hair analysis of crime scene evidence was conducted by the FBI Laboratory.  The review, prompted by the DNA-based exoneration of several men convicted on the basis of hair microscopy, will focus on “specific cases in which FBI Laboratory reports and testimony included statements that were scientifically invalid.”  The Innocence Project’s announcement of the review is here; a representative news article is here.

In a move that shows just how seriously the DOJ is taking this review, it has done something unheard of:

Because of the importance attached to these cases, the DOJ has agreed, for the first time in its history, not to raise procedural objections, such as statute of limitations and procedural default claims, in response to the petitions of criminal defendants seeking to have their convictions overturned because of faulty FBI microscopic hair comparison laboratory reports and/or testimony.

Translation: DOJ is not going to fight this review in any of these cases; they’re going to be part of it.

It’s hard to describe the magnitude of the shift in outlook this represents.  Usually, as readers of Failed Evidence know, law enforcement (and I include DOJ in that phrase) resists science-based review and testing; that’s the thrust of the book.  I am happy to say that this is refreshingly different.  According to Peter Neufeld, Co-Director of the Innocence Project, “[t]he government’s willingness to admit error and accept its duty to correct those errors in an extraordinarily large number of cases is truly unprecedented.  It signals a new era in this country that values science and recognizes that truth and justice should triumph over procedural obstacles.”

Of course, this review will not affect cases in which hair analysis was handled by state crime labs.  But here’s hoping they will take this as an example, as the Grits for Breakfast blog argues ought to be done in Texas.

For a sense of the damage that sloppy hair analysis and testimony about it has done in prior cases, listen to this NPR story and interview about the case of Dennis Fritz, in Ada, Oklahoma.  John Grisham’s nonfiction book “The Innocent Man” is an excellent read about the case.

Maybe this is the beginning of a trend.  Hats off to DOJ, the Innocence Project, and NACDL.

DOJ/FBI Examination of “Thousands” of Hair and Fiber Cases

July 10′s Washington Post reports that the U.S. Department of Justice and the FBI will, at long last, review “thousands” of criminal cases in which they used discredited hair and fiber analysis to “match” defendants to crimes.  The move comes months after the Post  published an article exposing the wrongful convictions of two men based on widely-used forensic testing of hair.  According to the newspaper:

Justice Department officials had known for years that flawed forensic work might have led to the convictions of potentially innocent people but had not performed a thorough review of the cases. In addition, prosecutors did not notify defendants or their attorneys even in many cases they knew were troubled.

(Since the article’s publication, the conviction of one of the men, Santae Tribble, has been vacated, and prosecutors have moved to have the other man, Kirk Odom, declared innocent of the crime.)

DNA evidence has now been in wide use in criminal cases for more than twenty years, and many of the nearly 300 convictions reversed in those years have come in cases in which bogus hair and fiber evidence, or other kinds of faulty forensics, convicted the defendants.  The weakness of this type of evidence was one of the central points of the 2009 National Academy of Sciences report, “Strengthening Forensic Science in the United States.”  Nevertheless, the reaction of law enforcement in D.C. was not to adopt better procedures.  According to National Public Radio, even though some law enforcement agencies around the country have made changes for the better based on science, “legislation in the City Council to reform those practices has been opposed by prosecutors and police.”

It’s an all-too-familiar pattern: science and experience show that evidence and methods we have used is not science at all, and that glaring weaknesses must be fixed.  Instead of taking action to improve what it does, law enforcement resists what science can tell us about how to improve, often at a low cost.  As a result, innocent people suffer needless injustice, and victims do not get the justice they deserve.