Senior Justice Department officials have quietly notified U.S. attorneys and federal agents that they’re establishing “a presumption” that agents will electronically record statements made by individuals in their custody.
In a memo obtained by NPR, Deputy Attorney General Jim Cole strongly encourages agents to videotape suspects in custody before they appear in front of a judge or magistrate on federal charges. The memo says FBI special agents in charge of field offices or U.S. attorneys can override the policy if they have good cause to set it aside.
The memo, issued earlier this month, does not apply in cases where agents need urgent national security-related information that could expose sources or methods. The document adds that if interview subjects refuse, agents need not record video or audio.
For years, the FBI has resisted recording confessions or interviews. In fact, the bureau had a formal policy barring any recordings unless authorized by a senior supervisor. The FBI policy dated March 2006 says “the presence of recording equipment may interfere with and undermine the successful rapport building interviewing technique which the FBI practices.” And later, that FBI policy notes that “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.”
The new policy, set to take effect July 11, is designed to align practices across the federal government, where some law enforcement agencies employ recordings and others don’t. The memo has been sent to not only the FBI but also the Drug Enforcement Administration, the Bureau of Alcohol, Tobacco, Firearms and Explosives, the U.S. Marshals and the Bureau of Prisons.
A law enforcement source tells NPR that the impending change is already producing a flurry of activity, meetings and training sessions.
Discussions about recording interrogations have been underway at the federal level since early in the Obama administration. And many state and city police already record interviews with suspects because of concerns about abusive practices that could railroad innocent or vulnerable individuals into false confessions.
For now, the new DOJ policy applies to cases where suspects are in federal custody. But Cole says he’d like agents and prosecutors to electronically record interviews they conduct as part of normal investigations, too. Cole says he favors electronic recordings but that audio recordings can serve as a substitute in certain cases.
Defense attorneys say they welcome the new approach.
Jerry J. Cox, president of the National Association of Criminal Defense Lawyers, says the group “is greatly encouraged by this important step.
“As we have seen from data regarding wrongful convictions, coercive police techniques and compromised mental states can conspire to produce false confessions,” Cox says. “Recording interrogations protects the accused against police misconduct, protects law enforcement against false allegations, and protects public safety by ensuring a verbatim record of the interrogation process and any statements.”
A Justice Department spokeswoman declined comment.