BLOG BULLETS:

• A new DOJ policy adopts a presumption that custodial interrogations should be recorded.
• There are exceptions where the suspect will make a statement only if isn’t recorded, where the “public safety exception” applies, where recording isn’t “reasonably practicable,” and/or where a Special Agent in Charge and a United States Attorney or his or her designee find a “significant and articulable law enforcement purpose.”
• A decision not to record based on one of these exceptions “must be documented by the agent as soon as practicable,” however.

NOW THE BLOG:

How often has your client’s alleged confession been recorded, so there was something more than the agent’s claim that he confessed? How often have you instead had to cross examine an agent about why he didn’t record your client’s alleged confession? How often have you wished you had an actual recording? (Yes, I know there were some times you wished you didn’t have one.)

A few more enlightened or libertarian states actually require police interrogations (or “interviews” as officers and agents like to call them) to be recorded. One that comes to mind most quickly is Alaska, where I practiced as a visiting federal defender for a few months. See Stephan v. State, 711 P.2d 1156 (Ak. 1985).

I recall once reading with some delight a colleague’s cross examination of an agent about his failure to record an interrogation in which the agent’s explanation was that he “wasn’t trained to record conversations.” This led on to some rather humorous cross examination about what sort of training was needed to use a tape recorder. It unfortunately didn’t lead from there to an acquittal, but maybe the client at least got a little pleasure in seeing the agent squirm.

Well, assuming the agent meant he wasn’t trained that heshould record interrogations as opposed to meaning he needed training in how to record interrogations, there will soon be training out there – at least in some agencies. In a memorandum issued last May, which is linked here, the Attorney General adopted “a presumption that the custodial statement of an individual in a place of detention with suitable recording equipment, following arrest but prior to initial appearance, will be electronically recorded.” The memorandum also “strongly encourages” the use of video recording. The presumption only applies to the FBI, DEA, ATF, and United States Marshal’s Service (perhaps because those are the only law enforcement agencies that the Attorney General has direct authority over?), but that’s at least a good start.

There are exceptions, which include (1) cases in which an arrestee is willing to give a statement only if it isn’t recorded; (2) cases where the “public safety exception” in New York v. Quarles, 467 U.S. 649 (1984), applies (see the posts on this exception, entitled “Bad Wars Make Bad Law: An Extension of the War on Terrorism and Its Creeping Infringement on Civil Liberties” and “More on Bad Wars Make Bad Law: Some Judicial Warnings,” through the June 2013 link at the right); (3) cases in which recording isn’t “reasonably practicable”; and (4) what the memorandum labels a “residual exception” where the “Special Agent in Charge” and the United States Attorney or his or her designee agree there’s a “significant and articulable law enforcement purpose” for not recording. But a decision not to record an interview based on one or more of these exceptions “must be documented by the agent as soon as practicable.”

So now you’ll either have the interview on audio or video or you’ll have some additional cross examination. The additional cross examination will include things like, “Well, you actually are trained to record interviews, aren’t you?”; “There’s even an official Department of Justice policy creating a presumption of recording interviews, isn’t there?”; “That policy was adopted by the central Department of Justice office in Washington, D.C., wasn’t it?”; and, “You violated that policy, didn’t you?” Then, if the agent tries to wriggle out of it, you might have, “Now, that policy does allow for some exceptions, doesn’t it?”; “You’re claiming one of those exceptions applied here, is that right?”; “But the policy requires you to document your decision not to record an interview, doesn’t it?”; “The policy requires you to document that decision as soon as practicable, doesn’t it?”; and “You never documented your decision at all, did you?” (Or, “And you didn’t document your decision until . . . , did you?”)

Of course, you may not have that cross examination but instead have an audiotaped or videotaped interrogation. And it’s possible that audiotape or videotape may remind you of the old adage, “Be careful what you wish for.” But it’s also possible there will be a few little cracks in the interrogation process that make the alleged confession or admission a little less definitive than the agent’s testimony or report might suggest. It’s surprising the lemonade you can make when you have the actual lemons.