Jonathan Turley
Lik

At a time when recording a conversation is as easy as whipping out a cellphone or iPod, the FBI policy on electronic recording of witness interviews is: “agents may not electronically record confessions or interviews, openly or surreptitiously, unless authorized by the SAC or his or her designee.” Instead FBI agents take notes and later type up a summary report called a form 302. The interview takes place with two FBI agents and the single interviewee. The FBI has eschewed the objective for the subjective.

This policy has proved problematic in numerous cases. District court judge Charles B. Kornmann in South Dakota lamented that he was forced to hear: “another all too familiar case in which the FBI agent testifies to one version of what was said and when it was said[,] and the defendant testifies to an opposite version or versions.”

Former U.S. attorney for Arizona, Paul Charlton, was forced to resign when he tried unsuccessfully to order the FBI to record confessions. Charlton recalls that “We lost cases, we had to plead down cases, we had to drop cases just because of this policy.” In a beating case on a Navajo reservation, the defendant had been charged with assault with intent to commit murder for the attack on his live-in girlfriend. After the victim refused to cooperate, the form 302 was the critical piece of evidence. However, the form 302 didn’t even indicate if the defendant was intoxicated or if the interrogation was in English or Navajo.

In an internal memo, the FBI listed its arguments supporting its non-record policy:

First, the presence of recording equipment may interfere with and undermine the successful rapport-building interviewing technique which the FBI practices. Second, FBI agents have successfully testified to custodial defendants’ statements for generations with only occasional, and rarely successful, challenges.

Thomas P. Sullivan, et. al., have spoken with officers from over 600 police and sheriff departments and found “None of the officers who had experience with electronic recordings would voluntarily return to reliance on handwritten notes.”

The memo offers another FBI argument is:

[A]s all experienced investigators and prosecutors know, 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. Initial resistance may be interpreted as involuntariness and misleading a defendant as to the quality of the evidence against him may appear to be unfair deceit.

What happened to the “successful rapport-building interviewing technique?” With the frequency of false confessions, one would think that the FBI valued ascertaining the actual guilty party and not just obtaining a confession that looks good to a jury. Playing to the jury is the FBI’s stated motivation. Juries tend to believe the two FBI agents, and the form 302, and this advantage would be lost if a recording was used.

The real reason the FBI doesn’t want to record interviews is Title 18 of the United States Code, section 1001, the so-called federal false statements law. Without recordings, the sole arbiter of what an interviewee says, is the FBI and its form 302. The threat of a charge if the interviewee is called to testify before a grand jury, or at trial, ensures testimony that is favorable to the prosecution. As noted by Harvey Silverglate:

Thus, the 302 reports are not there just to help the FBI report on interrogations; they are key tools for later manipulating witness testimony in a courtroom.

New York attorney Eric Dixon writes:

If the FBI wants to talk to you, they may be setting a trap for you where you walk into the interview totally innocent, and are totally vulnerable to being charged with a crime afterwards, no matter what you say.




Link to original video: https://m.youtube.com/watch?v=...fFWU_smki7lflHvpYNGQ

Interesting. Just trust the interrogator as if he has my best interest in mind. I can see taking notes and having a video/audio recorder going at the same time. I agree there are many nuances in human behavior, particularly facial expressions and verbal inflections.

That really is mind boggling.

My agency requires 100% video recording of interviews, unless there is some damn convincing reason you couldn’t, and there really isn’t one.

My state requires recording for certain cases.

And our DA’s office won’t prosecute anything that involves a failure to record.

It really is incomprehensible that the FBI doesn’t record interviews.

NJ requires that all confessions of a first through fourth degree crime be recorded with a electronic means.

Interviews of witnesses can be recorded. If so any notes, written or electronic must be preserved.

quote:

It really is incomprehensible that the FBI doesn’t record interviews.

Once you realize that the FBI doesn't care one bit about truth and justice it isn't.

Congress wants to be seen as doing something? Force the FBI to record all witness interviews. As others have mentioned it is common practice now a days. No honest reason NOT to do it.

I consider the FBI the modern Stasi. They exist to protect the government and suppress the people who oppose it. The days of "G-Men" fighting for truth, justice, and the American way are LONG gone.

The FBI has no integrity or accountability.

A tactic supported by Robert Mueller

here is a 2011 report on this topic

Constructing Truth: the FBI's (non)recording policy

https://www.forbes.com/sites/h...policy/#7e865d962e8a

a fundamental flaw in the FBI’s truth-gathering apparatus that Mueller (and, to be fair, his modern predecessors as well) supports: the long-defended Bureau-wide policy of not recording interrogations and interviews, a practice that allows the FBI to manipulate witnesses, manufacture convictions, and destroy justice as we once knew it.

Instead of electronically recording its interviews and interrogations, the FBI’s policy is to rely on agents’ typewritten “section 302 reports,” crafted to reflect the supposed substance of the exchange. At such sessions, one agent takes notes by hand while the second agent—in the traditional two-agent FBI interviewing team—conducts the interview/interrogation. Tape recordings are almost never done because such recordation is – believe it or not – against formal written FBI policy. Therefore, the 302 report becomes the sole arbiter of what was, and was not, said; moreover, as we will see below, any interviewee who contests its accuracy risks prosecution.

Hence, a potential witness’ script is written – and not necessarily by the witness himself – the moment he opens his mouth in the presence of an agent.

On its face, and in an era where digital recording has become ubiquitous, there seems to be little justification for a policy of not recording interviews. Paul K. Charlton, a now-former US Attorney in Arizona, certainly thought so when he broke ranks and ordered the mandatory recording of any statements from an investigative target in cases undertaken by his office. Charlton’s policy was resisted, and he was fired soon after instituting it. The FBI’s general counsel’s office produced an internal memorandum (PDF), later made public by the New York Times, listing four separate justifications for the non-recording policy.

First, the presence of recording equipment may interfere with and undermine the successful rapport-building interviewing technique which the FBI practices.

right. the good old rapport building FBI

Second, FBI agents have successfully testified to custodial defendants’ statements for generations with only occasional, and rarely successful, challenges.

Michael Flynn, Geo Papadopoulos

third, There are 56 fields [sic] offices and over 400 resident agencies in the FBI. A requirement to record all custodial interviews throughout the agency would not only involve massive logistic and transcription support but would also create unnecessary obstacles to the admissibility of lawfully obtained statements, which through inadvertence or circumstances beyond control of the interviewing agents, could not be recorded.

fourth, [A]s all experienced investigators and prosecutors know, 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. Initial resistance may be interpreted as involuntariness and misleading a defendant as to the quality of the evidence against him may appear to be unfair deceit.

The FBI here has made a startling even if inadvertent admission. When viewed in the light of day, many FBI interrogations which lead to confessions might, in the eyes of a jury of reasonable lay-people, be perceived as coercive or misleading. And, of course, what the agency leaves unsaid is that human experience demonstrates that coercive and misleading tactics have a tendency in some situations to produce false rather than true testimony. Therefore, rather than risk such juror skepticism in response to a verbatim recording, the FBI feels that a jury will more likely be led to the FBI’s version of the truth by reading an FBI agent’s form 302 than by listening to the actual interview.

The Form 302 Reports combine with a particularly troublesome section of the federal criminal code – Title 18 of the United States Code, section 1001 – to make the perfect cocktail for manipulating witnesses and in effect composing their testimony. Here’s how this system works:

Section 1001—the so-called federal false statements law —provides that it is a felony, punishable by up to five years in prison, to make a material misstatement to any member of the federal government. As such, one of the more ubiquitous counts found in federal indictments is that the defendant, when questioned by an FBI agent, lied. We also know that it is illegal for a person to lie under oath; typically such testimony occurs before a grand jury or court (or congressional committee); we call that perjury, punishable by a separate federal statute.

So what happens when the sole arbiter of what a witness says in an FBI interview is the 302 Report written by an FBI agent? If that witness should later be compelled to testify at a grand jury proceeding (leading to an indictment of the target of the investigation) or at the trial itself, he is under tremendous pressure to testify consistently with what the 302 report claims he told the agents when interviewed. Should a witness give testimony that is in conflict with the 302 report, he opens himself up to a felony conviction –either he had lied to the FBI in his initial interview, or he is lying to the grand jury or the court (or the congressional committee) in his testimony. Either way, he remains stuck between the Scylla of perjury and the Charybdis of a false-statements charge. Few question the veracity of the 302 report; after all, who will a jury more likely believe, a single witness or two upstanding FBI agents swearing that what they wrote in their 302 report accurately represents what the witness said when interviewed? When the feds suspect that a witness might tell a tale at the grand jury or at trial that is inconsistent with the prosecution’s favored factual scenario, the prosecutors will usually show him or his lawyer the 302 report. It becomes clear to the witness that he either must stick to the 302 version, or else risk a false statement or perjury charge when he testifies differently under oath.

Mueller would love to interview Donald Trump

This little known but quite ubiquitous system is one of the reasons that Harvard Law professor Alan Dershowitz coined his oft-quoted aphorism that federal prosecutors and FBI agents teach witnesses “not only how to sing, but how to compose.” We are all familiar with witnesses’ being offered favors – such as leniency – in exchange for prosecution-friendly testimony. But the system that relies upon the non-recording policy and the 302 reports elicits prosecution-favorable testimony not by promised favors, but rather by very effective threats. And such government-scripted testimony extracted from a witness by this subtle device is not subject to the common attack made by lawyers against testimony given due to promises of leniency or other rewards. The pressure on the witness is subtle, and the method for extraction of the testimony almost always escapes the jury’s knowledge.

Thus, the 302 reports are not there just to help the FBI report on interrogations; they are key tools for later manipulating witness testimony in a courtroom.

Strange......the DOJ puts out one set of guidelines and model policy and procedure for local and state LEOs but the FBI gets to play by completely different rules. It is mandatory that we record everything involved in a serious felony (crimes against persons: murders, rapes, Assault 1st). If it ain't on video, it didn't happen or wasn't said, regardless of what the report says.

I wasn’t really aware of this policy. It does makes sense though that the FBI enjoys, at least until lately, a reputation of being “the good guys”. Few have questioned their integrity until the last few years. That would play into their favor before a jury. Witness says one thing the FBI says something else. If you tend to believe the FBI has integrity, then you tend to believe the FBI over the witness. Recordings would just highlight any manipulation, lack of integrity or honesty coming from the government investigators.

I find it interesting that DOJ, as part of many of their consent decrees with local law enforcement agencies, insisted that interviews with suspects be recorded.

quote:

If the FBI wants to talk to you, they may be setting a trap for you where you walk into the interview totally innocent, and are totally vulnerable to being charged with a crime afterwards, no matter what you say.

So you don't talk to them.

Not one word.

If you ever thought you could trust the FBI, recent events show just how naive that idea is.

I think that these days, agencies that don't record interviews with suspects do so at their peril. Modern day juries want things on video, especially when there is no good explanation for why they aren't recording.

I would think the FBI would be even more vulnerable than most local police agencies in this regard, considering how much trust they have lost with the populace recently.

From the DoJ IG Horowitz report about Andrew McCabe:

"McCabe was represented by counsel during the interview, and, consistent with OIG practice, the interview was audio recorded."

Horowitz does it right.

This is old news. The FBI started recording interrogations years ago. My agency followed suit video recording all subject interviews in about 2007

quote:

Originally posted by HayesGreener:
This is old news. The FBI started recording interrogations years ago. My agency followed suit video recording all subject interviews in about 2007

And what about Hillary Clinton?
Define "years ago". I think it was the year 2016.
That was more recently than 2007.

Depends on whether you are looking for a result or the truth.

Me thinks the FBI does whatever it wants to do. If it is beneficial to record the interrogation, they do. If it is not, they do not. That simple.

Zero accountability regardless.

Looks like Holder ordered the change in policy to record them back when he was Attorney General.
Only sometimes they don't.
Go figure.

Clarification, DOJ policy requires custodial interviews be recorded, but does allow for some exceptions, but does not require non-custodial interviews to be recorded.

Further, interviews are voluntary, and whether custodial or not, sometimes suspects will only agree to the interview on the condition that it not be recorded.

With regard to Hillary Clinton, she was not in custody.

quote:

Originally posted by HayesGreener:
This is old news. The FBI started recording interrogations years ago. My agency followed suit video recording all subject interviews in about 2007

What are you talking about? The FBI has said, in a number of recent high profile cases, they do not record the interrogations. Do they record some and not others?

Edited to add: looks like sometimes yes and sometimes no? I’m confused, is there a standard?

No reason not to record unless you want a way to manipulate.


FBI may have modified witness reports, misled DOJ watchdog with 'false information,' GOP Rep says

http://www.foxnews.com/politic...on-gop-rep-says.html

The FBI may have "edited and changed" key witness reports in the Hillary Clinton and Russia investigations, a top House Republican charged in a hearing into FBI and Justice Department misconduct Tuesday.

Freedom Caucus Chair Rep. Mark Meadows, R-N.C, also raised the possibility that the FBI misled the DOJ watchdog in an attempt to hide the identities of FBI employees who were caught sending anti-Trump messages.

The House Judiciary and Oversight committees were questioning Justice Department Inspector General Michael Horowitz over his bombshell report into FBI and DOJ misconduct during the Hillary Clinton email probe.

"The other thing that I would ask you to look into, there is growing evidence that 302s were edited and changed,” Meadows told Horowitz. “Those 302s, it is suggested that they were changed to either prosecute or not prosecute individuals. And that is very troubling.”

So-called "302s" are reports on witness interviews compiled by federal investigators. Horowitz said later he has additional information suggesting that the witness reports were changed after-the-fact in both the Clinton and Russia probes -- a particularly alarming possibility given the IG report's findings of bias in those investigations.

Horowitz suggested that the IG is reviewing information concerning modified 302s, saying his office intended to "follow up" on the matter.

In a dramatic moment, Meadows then directly asked Horowitz whether two anonymous FBI employees identified as making anti-Trump statements in the IG's report were named Kevin Clinesmith and Sally Moyer.

Horowitz refused to confirm the employees' identities, which the FBI has declined to publicly reveal, citing the supposed sensitivity of their counterintelligence matters.

But Meadows suggested that justification may have been a sham.



"If that’s the reason the FBI is giving, they’re giving you false information."
- GOP Rep. Mark Meadows

“They don’t work in counterintelligence," Meadows said. "If that’s the reason the FBI is giving, they’re giving you false information, because they work for the [FBI] general counsel."

In the IG report released last Thursday, the two unnamed anti-Trump FBI employees reacted with shock and dismay at Trump's election.

“I am numb," one wrote on Election Day. “Viva le resistance,” the lawyer wrote later, in response to what he would do now that Trump had won.