http://www.azcentral.com/news/articles/1206fbitaping.html

FBI's policy drawing fire
Interrogations not taped

Dennis Wagner
The Arizona Republic
Dec. 6, 2005 12:00 AM

In the pursuit of criminals, FBI agents across the nation routinely use DNA tests, fingerprints, ballistics, psychological profiling and the world's most advanced forensic methods.

But a little-known policy at the Federal Bureau of Investigation keeps investigators from using one of the simplest and most effective tools in law enforcement: the tape recorder.

That policy appears in Section 7 of the FBI's "Manual of Investigative Operations and Guidelines": "Use of tape recorders for the purpose of recording the statements of witnesses, suspects and subjects is permissible on a limited, highly selective basis, and only when authorized by the SAC (special agent in charge)."

Standard FBI procedure calls for at least two agents to conduct interrogations: one asking questions and the other taking notes. The notes are used later to produce a typed summary known as Form 302.

When agents testify months or years down the road, they rely on 302s, and memory. As a result, jurors and judges hear recollections and interpretations, not what was actually said. And the defense lawyer often follows up with a cross-examination designed to impugn the agent's memory, competence or integrity.

Critics say the FBI practice leads to botched investigations, lost evidence, unprofessional conduct and damaged credibility for America's justice system.

The policy emerged as a problem for defendants, judges and juries during federal trials of Osama bin Laden, Oklahoma City bombing defendant Terry Nichols, TV star Martha Stewart and lesser-known figures.

When terrorism suspects were rounded up after the Sept. 11 attacks, their statements were not recorded.

When agents conducted a marathon interrogation of Nichols, learning of his involvement with Timothy McVeigh, not a word was retained on tape.

Responding to questions about the policy, William David Carter, an FBI spokesman in Washington, D.C., wrote in an e-mail that taping is strictly limited because it "can inhibit full and frank discussion or can end an interview entirely."

Yet most other U.S. enforcement agencies leave taping to the discretion of investigators - some even encourage officers to record interrogations - without any problem.

Phoenix Police Department policy, for example, instructs violent-crimes detectives to "make every attempt to audio- or video-tape suspect and critical witness interviews in felony investigations."

Officers in Tucson, Mesa, Glendale and Scottsdale routinely tape interviews, as do detectives at the Maricopa County Sheriff's Office and at the Arizona Department of Public Safety.

Carter refused to provide a copy of the entire policy, claiming it is an "internal FBI document." He said he did not know when the rule was instituted or by whom. He did not respond to other detailed questions on the policy.

Carter did say that recording interviews may be a "sound enforcement policy" if the subject is comfortable with a tape machine. However, he added, "The FBI believes that it would unduly burden ongoing criminal investigations and impede immediate law-enforcement responses to fast-breaking criminal events to require that all witness statements be recorded."

Motive unclear

Thomas P. Sullivan, a former U.S. attorney from northern Illinois who has studied the issue for several years, described the FBI practice as "baffling" and "sorely out of date."

"I don't get it," said Sullivan, now a defense lawyer. "They have the most sophisticated electronic equipment you can think of in the federal government, and yet they don't use the most simple equipment."

In his research for Northwestern University School of Law, Sullivan queried police agencies in 43 states and found that recorded interrogations are a benefit to police and the justice system. He also noticed a clear trend toward taping.

"Sooner or later, the federal government will get on board," he said. "I've talked to more than 400 police departments and sheriff's offices where recordings are used. I can't remember anyone who didn't like it.

A. Melvin McDonald Jr., a criminal-defense lawyer who once served as the top federal prosecutor in Arizona, referred to the FBI policy as "insane."

"It blows my mind trying to think of a rational reason for it," McDonald said. "They are usually on the cutting edge, and to say, 'We're not going to do this,' just makes no sense. . . . It's Investigations 101. I don't ever question a criminal-defense witness without taping it."

Some defenders of the FBI policy suggest that taping and transcribing interviews would become a logistical nightmare and a waste of money for an organization with 11,000 agents.

Sullivan said recorded interviews actually save money because they result in more guilty pleas, fewer defense motions to suppress confessions and fewer lawsuits over wrongful prosecution. Moreover, if FBI agents used tape recorders they wouldn't have to double-team their interviews, so staffing costs would be cut in half.

Steve Drizen, legal director at Northwestern Law's Center for Wrongful Convictions, offered another possible motive: "The main reason why the FBI does not want to record is that they do not want to let the public or juries see how brutal their psychological interrogation tactics can be."

Frederic Whitehurst, an FBI supervisor-turned-whistle-blower, said: "By not having the real data, the evidence of what was actually said, they can control the interpretation, the spin on it. . . . And you have no way to tell if they're making a mistake."

For those who doubt that FBI agents would forget, leave things out or twist the truth, Whitehurst points to the words of Danny O. Coulson, a high-level administrator at the bureau. In his book, No Heroes: Inside the FBI's Secret Counter-Terror Force, Coulson described how he became the target of a criminal probe after a botched case and agreed to be interviewed only if he could submit a sworn statement as part of the case file.

"I had seen too many criminal investigations in which FBI agents conducted interviews and then paraphrased their subject inaccurately because they were unfamiliar with the complicated subject matter or had their own spin on the case already."

Pros and cons

Jana D. Monroe, special agent in charge for the FBI in Arizona, said she authorizes taping on a case-by-case basis and considers it a useful strategy in some circumstances.

Monroe encourages agents to record interviews of juvenile defendants and child-abuse victims in Indian country to document that no coercion or prompting was used.

That rationale does not apply to most cases. In sworn testimony, FBI agents routinely find themselves defending the policy, as well as the accuracy of their Form 302 notes and memories.

Monroe noted that some U.S. attorneys have begun to press the FBI for a rule change, adding, "I don't know what the future will bring."

However, she worried that tape recordings could undermine prosecutions in some cases by revealing lies and psychological ploys that agents sometimes use during interrogations. "That might not look real good to jurors."

On the other hand, there is evidence that the FBI's no-taping practice is a turnoff for those charged with rendering verdicts.

Early this year, a federal jury in Philadelphia acquitted a banker accused of lying to agents because the only evidence was the agent's scribbled notes and testimony. "We wouldn't have been here if they had a tape recorder," one juror told the Associated Press.

The issue also proved troubling in Nichols' 1998 federal trial. Under oath, agents acknowledged that Nichols refused to sign a Miranda form but claimed he waived his rights to an attorney. Defense attorney Ronald Woods challenged that account by Agent Scot Crabtree and demanded to know why investigators failed to tape 9 1/2 hours of questioning with a suspect in the Oklahoma City bombing.

Jurors convicted Nichols of conspiracy but found him not guilty of murder at the Alfred P. Murrah Building. Afterward, jury forewoman Niki Deutchman told reporters the lack of recordings was a key weakness in the government's case.

Harvey Silverglate, a Boston defense attorney, said he despises the FBI policy because it allows agents to twist statements made by witnesses and suspects but also because it puts the nation at a greater risk of terrorism by undermining the bureau's intelligence-gathering mission.

"The system is not put together for efficiency or accuracy," Silverglate said. "It's put together for ease of prosecution. And in an age of terrorism, it actually poses a threat to national security."

Taping required

Illinois, Maine, New Mexico and Washington, D.C., have adopted statutes that require taping. Supreme court justices in Alaska, Massachusetts, Minnesota, New Jersey and New Hampshire have ordered police to record suspect interrogations.

Detectives in Mesa, Scottsdale, Chandler, Peoria and Gilbert record interviews with felony suspects at least half the time.

So do their counterparts in Los Angeles, San Diego, San Francisco, Denver, Miami, Portland, Houston and hundreds of other communities.

Sullivan, who has surveyed police agencies nationwide, said most have no formal policy, so it's up to investigators. However, he said the taping of interviews is a clear trend nationwide.

Neil Nelson, a police commander and interrogations consultant in St. Paul, Minn., said recording leads to better investigations, more crimes solved, enhanced professionalism and less time spent in court.

Nelson started using a recorder during the 1980s because he couldn't keep track of suspect statements when his narcotics team busted crack houses. Now, all police in Minnesota are required to tape suspect interviews by court order.

"It is the best tool ever forced down our throats," Nelson said. Nelson, Sullivan and others dispute the argument that audio or video recording interferes with investigations or makes defendants clam up.

A 1998 study for the International Association of Chiefs of Police reported "little conclusive evidence" that videotaping affected suspects' willingness to talk. Instead, researchers found, "the majority of agencies that videotape found that they were able to get more incriminating information from suspects on tape than they were in traditional interrogations."

The law in many states, including Arizona, allows detectives to record interviews without a suspect's permission or knowledge. Even when a tape machine is visible, Nelson said, suspects usually blab away. And in cases when a defendant gets uptight or refuses to speak, agents can simply turn off the device and take notes.

Ultimately, Nelson said, recorded interviews shield detectives from allegations of misconduct.

"Taping preserves the integrity of the officers and the interrogation process. What you say on tape, you have to be careful. You can't be like Sipowicz on NYPD Blue and expect to have a career in law enforcement."

Reasons to record

Most law-enforcement agencies in the United States have no policy on the recording of interviews with criminal suspects or leave it to the investigator's discretion. Where no recording exists, federal courts allow law enforcement to testify about defendant statements. Proponents of taping cite a number of reasons why tape recording should be a routine part of interviews with suspects and witnesses in major felonies:

An accurate, permanent record of the statement is retained for future use by investigators and in court.

False confessions and false prosecutions are less likely, as well as lawsuits that emanate from those problems.

Public confidence in law enforcement and the justice system is enhanced.

Detectives are more likely to conduct interrogations in a professional manner and are better able to focus on suspect responses.

Defendants' rights are safeguarded; investigators are not subjected to allegations of coercion, dishonesty or other misconduct.

Defense attorneys are less likely to file motions to suppress admissions made during interrogations.

Taped confessions induce more guilty pleas.

Recorders are useful for law-enforcement training.

Source: "Electronic Recording of Custodial Interrogations: Everybody Wins," by Thomas P. Sullivan, in the Journal of CRIMINAL Law and Criminology.