Recording federal custodial interviews.

• Author: Sullivan, Thomas P.

1. INTRODUCTION II. THE PROPOSED ARIZONA PILOT RECORDING PROGRAM AND THE FEDERAL AGENCIES' OPPOSITION A. The Proposed Pilot Program B. Observations on the Federal Agencies' Opposition to Recording III. A SUMMARY OF OUR RESEARCH AND FINDINGS ON LAW ENFORCEMENT EXPERIENCES WITH RECORDING CUSTODIAL INTERVIEWS A. Our Research Methods B. Two Conflicting Views IV. THE BENEFITS OF RECORDING CUSTODIAL INTERVIEWS A. Law Enforcement Officers B. Suspects and Defense Attorneys C. Prosecutors D. Judges and Juries E. The Public V. EVOLUTION OF THE PRACTICE OF RECORDING CUSTODIAL INTERVIEWS A. The National Movement 1. Statutes 2. Court Rulings 3. Individual Departments 4. Additional Support for Recording B. Dispelling Initial Law Enforcement Resistance VI. ANALYSIS OF THE FEDERAL AGENCIES' OBJECTIONS TO RECORDING CUSTODIAL INTERVIEWS A. Agents' Testimony Has Been Accepted With Only Occasional Successful Challenges B. Recordings May Interfere With Agents' Rapport-Building Techniques C. Suspects May Be Less Candid, and/or "Play to the Camera" D. Recordings May Disclose Certain Lawful Investigative Methods that Jurors May Deem Inappropriate E. Technical and Operating Difficulties May Lead to Suppression of Valid Confessions F. Failures to Make Recordings Required by State or Rule May Result in Suppression of Valid Confessions or Harmful Jury Instructions G. The Costs Will be Prohibitive H. Joint Federal-State Operations May Be Impaired I. A Mandatory Recording Requirement May Have an Adverse Impact in Civil Suits Brought Against the Government VII. PROSECUTORS' PROFESSIONAL RESPONSIBILITIES TO SUPPORT ELECTRONIC RECORDINGS OF CUSTODIAL INTERVIEWS VIII. CONCLUSION APPENDIX A--LIST OF DEPARTMENTS THAT RECORD CUSTODIAL INTERVIEWS APPENDIX B--MODEL FEDERAL RECORDING STATUTE I. INTRODUCTION

   Regardless of how experienced, honorable, intelligent, dedicated and talented, no one is able to recount what occurred on a prior occasion with the same accuracy, completeness and descriptiveness of an electronic recording. The precise words, inflections, and mannerisms cannot be replicated in handwritten notes, typewritten reports, or testimony, as accurately and completely as in a recording. This is true even when the notes are made during the event, and the reports are prepared soon thereafter. Our experiences illustrate the point: compare an oral description of an exciting sporting event to a televised picture of the scene; or a summary of a speech to a recording; or handwritten notes of a deposition to the reporter's transcript.

   Professionals in other disciplines have long since recognized the limitations and fallibility of memory. Here is what Justice Monk of the Supreme Court of California wrote in 1982, concerning the seminal work of Sir Frederic C. Bartlett, professor of psychology at Cambridge University:

   "The first notion to get rid of is that memory is primarily or literally reduplicative, or reproductive.... In fact, if we consider evidence rather than presupposition, remembering appears to be far more decisively an affair of construction rather than one of mere reproduction." As had often been shown, "condensation, elaboration and invention are common features of ordinary remembering".... "Remembering.... is an imaginative reconstruction, or construction, built out of the relation of our attitude towards a whole active mass of organized past reactions or experience...."

   Bartlett's insight that "the past is being continually re-made, reconstructed in the interests of the present" prevailed in due course among his colleagues, and is now the generally accepted view of the profession. (1) Despite our inability to recount past events fully and accurately, federal law enforcement agencies have steadfastly refused to require their agents to make electronic recordings of their official interviews of persons held in custody on suspicion of violating federal law. They rely instead upon typewritten reports prepared based upon agents' handwritten notes and memories. Their non-recording policy extends even to interviews taken from persons who are under arrest and questioned in detention facilities controlled by the federal government.

   Documents produced under the Freedom of Information Act by the Department of Justice (DOJ) provide a rare insight into why its investigative agencies are opposed to requiring their agents to make electronic recordings when they interview arrested suspects. In this article, I explain and evaluate each of the reasons recently given by DOJ law enforcement agencies for opposing electronic recordings of custodial interrogations.

   In connection with the 2006 removal of eight United States Attorneys, the DOJ disclosed a series of letters and emails concerning a request made by Paul K. Charlton, the United States Attorney for the District of Arizona, for authority to conduct a pilot program requiring DOJ investigative agents in Arizona to record interviews of targets of their investigations, by audio or video, from the Miranda warnings to the end. (2) These documents contain a series of justifications for the DOJ investigatory agencies' continued resistance to the growing trend among state and local law enforcement agencies of recording their custodial interviews of felony suspects. (3) Perhaps the most significant conclusion to be gleaned from the records is that federal policy on this critical subject has been driven by hypothetical, conjectural concerns, rather than actual experience in the field.

   During the past several years, my associates and I have spoken with over six hundred law enforcement personnel, most of them experienced detectives, from police and sheriff departments throughout the United States, about their experiences with and views about recording custodial interviews of felony suspects. (4) Based upon the evidence we have amassed, I respectfully submit that not a single one of the reasons provided by the federal agencies as a basis to oppose recording is valid. The time has come for all federal investigative agencies--not only those within the DOJ--to reassess their positions on this important subject and adopt uniform polices requiring that agents electronically record their interviews of arrested suspects conducted in federal and local police facilities. If the agencies fail to act, the President should take steps to order, or Congress should enact legislation requiring, federal agencies to record custodial interviews.

2. THE PROPOSED ARIZONA PILOT RECORDING PROGRAM AND THE FEDERAL AGENCIES' OPPOSITION

   1. The Proposed Pilot Program

      In February 2006, Mr. Charlton, United States Attorney for the District of Arizona, sent letters to the DOJ investigative agencies in Arizona advising them he had adopted a new policy, effective March 1, 2006, requiring that cases submitted to his office for prosecution include a recording of the investigative target's statement, either by audio or video, unless it could not reasonably be obtained. (5) The letters instructed that the recording should cover the entire interview, including the Miranda warnings and any subsequent questioning. To illustrate the need for recordings, Mr. Charlton attached memoranda from several of his assistants recounting two recent cases in which juries acquitted the defendant because federal agents had not recorded key interviews that formed the bases for the charges. (6) Mr. Charlton also included a third case, in which the agent's failure to record an alleged confession undermined the government's evidence so badly that a murder charge was withdrawn, and the prosecution negotiated a plea agreement to the lesser charge of assault with intent to commit murder. (7)

      Several weeks later, an Associate Deputy Attorney General (Associate DAG) in Washington, D.C., wrote to Mr. Charlton relaying the acting Deputy Attorney General's (DAG) decision to delay the implementation of Mr. Charlton's mandatory recording policy, pending a thorough departmental and inter-agency review. Nevertheless, the acting DAG encouraged Mr. Charlton to "submit a proposal to have a pilot program in your district." (8) Mr. Charlton promptly responded by asking for permission to conduct a pilot recording program in Arizona. (9) He gave a number of supporting reasons, including the three recent cases mentioned above. Several months later, the Associate DAG sent a summary of the proposed pilot plan to the DOJ investigative agencies and to the Attorney General's Criminal Chief's Working Group (composed of career Assistant United States Attorneys), asking whether or not they supported the operation of "a pilot program in the District of Arizona in which taping of interviews of investigatory targets would become the presumptive norm, although with exceptions for certain circumstances." (10)

      The responses from the FBI, DEA and ATF representatives towards the notion of a mandatory recording policy and pilot program were decidedly negative. (11) The FBI's General Counsel wrote that although the agency was willing to support a pilot program, a series of problems would likely be encountered in designing an appropriate program. (12) She enclosed a memorandum dated March 23, 2006, entitled "Electronic Recording of Confession and Witness Interviews," sent by the Office of FBI General Counsel to all field offices and headquarters divisions. (13) The memorandum set forth reasons the Director of the FBI, after consultation with his executive management, decided to reaffirm existing FBI policy that agents may not electronically record confessions or interviews, openly or surreptitiously, unless authorized by the Special Agent in Charge (SAC). (14) Similarly, representatives of the DEA (15) and the ATF (16) sent memoranda containing a variety of reasons why they were opposed to the pilot program or a mandatory recording policy.

      One group expressed support for Mr. Charlton's proposal. The chair of the Criminal Chief's Working Group--composed of experienced DOJ prosecutors--responded...