Modern recording devices are a boon to law enforcement. Wiretaps betray crooks plotting their crimes. Surveillance cameras on city streets identify muggers and drug dealers. Video gear in patrol cars shows drivers who can barely stand, much less walk a straight line.
All these provide devastating evidence in court: Jurors can witness exactly what happened. But when it comes to capturing some of the most important information available for fighting crime, the Federal Bureau of Investigation would rather see no evil and hear no evil.
Agents conducting an interrogation of someone they have detained need a record of what the suspect says. So what do they do? They grab a pen and take notes down on paper. Then they type up an account, just as their forebears have been doing since the Taft administration.
The written account-which is not even signed by the suspect-is all prosecutors have when they want to use incriminating statements against a defendant. It’s the FBI’s word against the suspect’s as to whether he actually said what the agent recalled.
The result at trial is often unpleasant for the prosecution. “You can imagine how the cross-examination goes,” sighs Paul Charlton, a former U.S. attorney for Arizona, who does a convincing impression of an incredulous defense attorney. “‘Agent Dokes, do you have a recording device? Do you know how to operate it? Agent Dokes, why didn’t you use a recording device?'”
Charlton, who was fired by the Justice Department in 2006 for trying (without success) to force the FBI to record confessions in Arizona, had been sorely frustrated by its policy. “We lost cases, we had to plead down cases, we had to drop cases just because of this policy,” he recalls in a phone interview.
The Justice Department, finally waking up to the arrival of the 21st century, now has a task force reexamining the virtual ban on recording, which by any reasonable standard is as obsolete as J. Edgar Hoover. But the FBI shows no openness to change.
Spokesman Bill Carter provides the traditional explanations for rejecting recording as a normal practice. He says they can “inhibit frank discussions and end interviews early” if the arrestee is averse to taping.
Maybe so. But the occasional objection from someone being questioned doesn’t justify a general policy against taping.
In any event, the FBI ignores a mass of experience acquired by police agencies that make use of modern technology. When I asked Carter if the FBI had looked at their experience for possible lessons to be learned, his refreshingly candid answer was “no.”
It would learn a lot from asking them and even more from trying what they’ve tried. When cops start taping all confessions and interrogations, they suddenly discover that recording devices are their best friends.
Chicago lawyer Thomas Sullivan, a former U.S. attorney for the Northern District of Illinois, has with his colleagues queried more than 800 U.S. law enforcement personnel in departments that routinely tape custodial interviews. Of those departments, Sullivan wrote in a 2008 article in the American Criminal Law Review, “not a single one has expressed a wish to return to non-recorded custodial interviews.”
Why is that? Recording the process frees cops from scribbling notes, letting them focus on how the suspect handles himself. Reviewing the tape, they sometimes notice things they missed the first time.
The recording relieves police of having to recall events that may be years old by the time they take the stand. They no longer endure grilling from defense lawyers about whether they gave Miranda warnings or coerced suspects. When a jury gets to see a criminal calmly recounting his crime, a conviction usually ensues.
Here’s something else that may interest the FBI: Cops, Sullivan writes, report that “most suspects pay no attention to the recording equipment once the interview begins.”
There are other benefits, too. Those being questioned gain protection against police abuse. Judges no longer waste time trying to figure out if statements were given voluntarily. Guilty pleas are more likely, saving taxpayers the expense of trials and appeals.
Law enforcement investigations are supposed to aim at uncovering relevant facts, which can be captured vividly in recordings. The FBI and the Justice Department would benefit from showing that given a choice between more truth and less, they prefer more.
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