FBI Will Now Videotape In Custody Interrogations

[Significant Update Below]

My hometown paper, the Arizona Republic, broke some critically important news a few minutes ago. The story by Dennis Wagner, a superb reporter at the Republic for a very long time, tells of a monumental shift in the policy of DOJ agencies in relation to interrogations and confessions of those in custody.

There was no news release or press conference to announce the radical shift. But a DOJ memorandum —obtained by The Arizona Republic — spells out the changes to begin July 11.

“This policy establishes a presumption that the Federal Bureau of Investigation (FBI), the Drug Enforcement Administration (DEA) the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and the United States Marshals Service (USMS) will electronically record statements made by individuals in their custody,” says the memo to all federal prosecutors and criminal chiefs from James M. Cole, deputy attorney general.

“This policy also encourages agents and prosecutors to consider electronic recording in investigative or other circumstances where the presumption does not apply,” such as in the questioning of witnesses.

This has been a long time coming and is notable in that it covers not just the FBI, but DEA, ATF and US Marshals. Calling it a monumental shift may be, in fact, a bit of an understatement. In the course of a series of false confession cases in the 90’s, attempts to get this instated as policy in the District of Arizona were fought by the DOJ tooth and nail. As other local agencies saw the usefulness of audio and/or video taping, DOJ authorities fought the notion like wounded and cornered dogs. That was not just their position in the 90’s, it has always been thus:

Since the FBI began under President Theodore Roosevelt in 1908, agents have not only shunned the use of tape recorders, they’ve been prohibited by policy from making audio and video records of statements by criminal suspects without special approval.

Now, after more than a century, the U.S. Department of Justice has quietly reversed that directive by issuing orders May 12 that video recording is presumptively required for interrogations of suspects in custody, with some exceptions.

What has historically occurred is an agent (usually in pairs) did interviews and then recounted what occurred in what is called a “302” report based on their memories, recollections and handwritten notes (which were then usually destroyed). This created the opportunity not just for inaccuracy, but outright fabrication by overly aggressive agents. Many defendants have been wrongfully convicted, and some who were guilty got off because competent defense attorneys made fools of agents, and their bogus process, in court.

In short, presumptive taping is smart for both sides, and absolutely in the interests of justice. It still remains inexplicable why the DOJ maintained this intransigence so long when every competent police procedures expert in the world has been saying for decades that taping should be the presumption.

Now it should be noted that the policy will only apply to “in custody” interrogations and not ones where there has been no formal arrest which is, of course, a gaping hole considering how DOJ agents blithely work suspects over under the ruse they are not yet in custody. There will also clearly be an exigent circumstances/public safety exception which are also more and more frequently abused by DOJ (See: here, here and here for example).

So, we will have to wait to see the formal written guidance, and how it is stated in the relevant operation manuals for agents and US Attorneys, to get a full bead on the scope of change. And, obviously, see how the written policies are implemented, and what exceptions are claimed, in the field.

But the shift in interrogation policy today is monumental and is a VERY good and positive step. Today is a day Eric Holder should be proud of, and it was far too long in arriving.

UPDATE: When I first posted this I did not see the actual memo attached to Dennis Wagner’s story in the Arizona Republic; since that time I have been sent the actual memo by another source, and it is also available as a link in the Republic story that broke this news. Here are a couple of critical points out of the actual memo dated May 12, 2014:

The policy establishes a presumption in favor o f electronically recording custodial interviews, with certain exceptions, and encourages agents and prosecutors to consider taping outside of custodial interrogations. The policy will go into effect on Friday, July 11, 2014.

By my information, the gap in implementation is because DOJ wanted to do some top down discussion and orientation on the new policy, which makes some sense given the quantum nature of this shift. My understanding is that this is already ongoing, so DOJ seems to be serious about implementation.

But, more important is the news about non-custodial situations. That was a huge question left unanswered initially, as I indicated in the original part of this post. That agents and attendant prosecutors will be encouraged to record these instances as well is, well, encouraging!

The exceptions, which are outlined is Section II of the memo are pretty much exactly as I indicated should be expected above.

Notable in the Presumptions contained in Section I of the memo is that the rule applies to ALL federal crimes. No exceptions, even for terrorism. Also, the recording may be either overt or covert, which is not different from that which I have seen in many other agencies that have long recorded interrogations. Section III specifically excludes extraterritorial situations from the rule. Frankly, I am not sure why that is necessary, the ability to record is pretty ubiquitous these days, extraterritorial should be no problem for presumptive recording.

Those are the highlights of the memo. It is short and worth a read on your own.

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.
15 replies
  1. bloopie2 says:

    Was Ibragim Todashev “in custody” at the time of his death? Here is one FBI statement I found. It sounds like the answer is “No”, so there would have been no requirement to videotape for this incident. Crap.

    “The FBI is currently reviewing a shooting incident involving an FBI special agent. Based on preliminary information, the incident occurred in Orlando, Florida during the early morning hours of May 22, 2013. The agent, two Massachusetts State Police troopers, and other law enforcement personnel were interviewing an individual in connection with the Boston Marathon bombing investigation when a violent confrontation was initiated by the individual.”

      • bloopie2 says:

        Pleading ignorance: If he was not in custody, wasn’t he (theoretically) legally allowed to get up and leave? If so, and (as we know) he didn’t, was it extreme pressure they brought in other regards, that kept him there?

        • bmaz says:

          Yes, it was pretty much bullshit fiction that he was not in custody. And I bet there is a decent chance that he tried to test his ability to leave and that is when all hell broke loose.

    • chronicle says:

      quote” The agent, two Massachusetts State Police troopers, and other law enforcement personnel were interviewing an individual in connection with the Boston Marathon bombing investigation when a violent confrontation was initiated by the individual.”unquote

      The only violence perpetrated was by a murderous FBI agent, who pumped 7 rounds of hollow point ammo into an unarmed human being. 7 FUCKING BULLETS, one of which was to the back of the head. Any one on this planet who believes these lying bastards is a certifiable imbecile. To wit..
      quote”What has historically occurred is an agent (usually in pairs) did interviews and then recounted what occurred in what is called a “302″ report based on their memories, recollections and handwritten notes (which were then usually destroyed). This created the opportunity not just for inaccuracy, but outright fabrication by overly aggressive agents.”unquote

      Outright fabrication. In laymen’s terms..lying through their goddamned teeth..ie..Ibragim Todashev. In fact, I’ll submit, something has happened whereby there may be evidence of fact that the FBI did indeed murder him, which the FBI can’t refute, which now, MAY become public, and Holder is freaking out to the point of never allowing it to happen again. At least, one can only hope. What ever the case, the story of his demise is the most bizarre story I’ve ever heard. It changed three times in less than an hour. And now…Holder’s changing the entire modus-operandi of Federal law enforcement interrogation??? I smell a rat.. a big fat stinking FBI/DOJ rat.

  2. P J Evans says:

    I’m surprised it hasn’t occurred to them that video recording also protects them from later claims of mistreatment of those in custody (with or without charges).

      • P J Evans says:

        Mostly I’m surprised that its’ taken so long for them to get there. (But then I remember that the FBI is kind of technophobic.)

  3. Jonathan Steigman says:

    A good start, but who controls access to the video?

    The best advice I’ve heard is that one should *never* talk to the FBI without one’s own video camera AND an attorney present.

  4. earlofhuntingdon says:

    “No exceptions” for supposedly terrorism-based offenses would be essential, given how many ordinary crimes are being thrown into the terrorism dustbin in order to get round procedural and other limits on investigatory and prosecutorial conduct.

    • bmaz says:

      Yeah, exactly. Though, to be cautious, terrorism and CI cases will be exactly where the discretion of SAC’s and USA’s comes in to play for a presumption override. It will be fascinating to see how this plays out.

      Still, I have been beating my head on this wall for sooooo long, that I am unable to be anything but thrilled at this news.

  5. Ken Hardy says:

    Is it significant that though the memo seems to reference “interviews” within a “best efforts” context that the REQUIREMENT is for the electronic recording of the STATEMENT? If all we get is a recording of the detainee giving a statement after hours of UNrecorded threats, intimidation, and abuse then we get bupkis. It seems that a loophole allowing just this may be baked in here.

    • bmaz says:

      I don’t think that is right at all. Even if the prior statements are not recorded, a later formally taped interview is a critical opportunity for a suspect/defendant to make a record of what he is really saying.

      This is a huge deal for those of us that have been fighting this issue for decades. It may not be perfect, but it is one hell of a positive shift in the right direction.

  6. Greg Bean (@GregLBean) says:

    “Section III specifically excludes extraterritorial situations from the rule.”

    “notable in that it covers not just the FBI, but DEA, ATF and US Marshals”

    Sad that the country that sees itself as the world’s policeman sees no reason to provide the same level of legal protections to the 6.7 billion “extraterratorials” they presume they have the right to police.

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