DOJ reverses no-recording policy for interrogations

• A policy of not recording suspect interrogations has been in place for more than a century.
• The Department of Justice will now require all interviews to be recorded%2C with some exceptions.
• Criminal defense attorneys and former prosecutors alike hail the decision as a positive move.

Since the FBI began under President Theodore Roosevelt in 1908, agents have not only shunned the use of tape recorders, they've been prohibited by policy from making audio records of statements by criminal suspects without special approval.

Now, after more than a century, the U.S. Department of Justice quietly has reversed that directive by issuing orders May 12 that audio recording, preferably with video, is presumptively required for interrogations of suspects in custody, with some exceptions.

There was no news release or news conference to announce the radical shift. But a DOJ memorandum obtained by The Arizona Republic spells out the changes that will begin July 11.

"This policy establishes a presumption that the Federal Bureau of Investigation (FBI), the Drug Enforcement Administration (DEA), the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and the United States Marshals Service (USMS) will electronically record statements made by individuals in their custody," says the memo from James M. Cole, deputy attorney general, to all federal prosecutors and criminal chiefs.

"This policy also encourages agents and prosecutors to consider electronic recording in investigative or other circumstances where the presumption does not apply,'' such as in the questioning of witnesses.

An accompanying message from Monty Wilkinson, director of the Executive Office for United States Attorneys, says the change resulted from lengthy collaborative efforts among DOJ and law-enforcement personnel. Media representatives at the Justice Department and FBI did not respond to requests for a more detailed explanation.

Paul Charlton, a former U.S. attorney for Arizona who was fired by President George W. Bush in part because Charlton challenged the Justice Department's no-taping policy, welcomed the turnaround.

"It's a great day," Charlton said. "Really extraordinary. It's a step in the right direction for law enforcement."

"Hallelujah!" agreed Steve Drizin, a clinical professor of law at the Northwestern University School of Law who focuses on false convictions and false confessions. "It's been a long time coming."

Nancy Savage, executive director at the Society of Former Special Agents of the FBI, said there's probably no unilateral view from field agents. Although tape recorders sometimes intimidate suspects, she added, the change was probably inevitable because juries have come to expect audio and video evidence.

"This is a radical departure," Savage said. "They want to see it in living color. ... I think it's probably just a move forward."

Attorneys, researchers and critics of the old policy say reform brings federal agencies up to modern policing standards and removes a stigma that has damaged the credibility of America's criminal-justice system. Put simply, in the absence of recorded interviews, defense lawyers have been able to undermine honest testimony by some FBI agents while, in other cases, agents misremembered, distorted or lied about suspect statements.

The failure to maintain electronic records of interrogations also created gaps in FBI intelligence gathering, especially involving terrorism cases. Instead of maintaining an accurate and largely indisputable record, agents on the witness stand for decades have relied on their memories, interpretations and handwritten notes transcribed into a form known as the 302.

Critics have said that flawed system results in botched investigations, lost evidence, unprofessional conduct and false convictions. They noted that the historic DOJ practice was problematic in trials of suspects like terrorist Osama bin Laden, TV star Martha Stewart and Oklahoma City bombing defendant Terry Nichols, along with thousands of defendants with no public exposure.

The FBI, considered one of the most advanced investigative agencies in the world, helped pioneer the use of fingerprints, ballistics, electronic wiretaps and psychological profiling. Yet, while local police have audio- or video-recorded suspects for decades, some FBI agents and administrators doggedly resisted the use of a device more accurate than the pen.

As recently as 2005, the FBI declined to give The Arizona Republic a copy of its written policy requiring special authorization for recordings, or even to say when and why the rule was created. Bureau assertions that taping of suspects is a logistical problem, or inhibits honest interviews, are generally disputed by street cops, detectives and professors of criminology. In fact, taping of criminal suspects is now mandatory in at least eight states, either by statute or by court decree.

In 2006, the New York Times uncovered another explanation for the DOJ policy, spelled out in an internal FBI memorandum. Basically, it argued that jurors might be offended, possibly to the point of acquitting defendants, if they observed the deceit and psychological trickery legally employed by agents to obtain information and confessions.

Drizin said the FBI has obtained a number of false convictions in homicide cases, particularly on Indian reservations, because suspect interviews were not recorded. Drizin also noted that, in some recent trials, jurors have acquitted defendants because they mistrusted FBI testimony about interrogations that could have been recorded.

Fred Whitehurst, an attorney and ex-FBI agent who turned whistle-blower, said the new policy is "delightful."

Mel McDonald, a former U.S. attorney for Arizona who now does criminal defense work, said FBI interrogations involve one agent taking notes while a second conducts the interview. Although "302" records and agent memories may be inaccurate, he said, their testimony trumps a suspect's recollection. In fact, a defendant who disputes the FBI statements could be charged additionally with lying to federal authorities.

"I've had more clients who told me, 'That's not what I said,' " McDonald said. "But you've got two agents supporting each other. It's your word against theirs. Who are they (jurors) going to believe?"

McDonald hailed the close of "an insane policy" at the DOJ.

Larry Hammond, chairman of the Arizona Justice Project, said the recording of interrogations is one of the most important steps in eliminating false confessions and unjust convictions.

The new policy contains an exception for public-safety situations where a suspect must be questioned instantly to avert an imminent, life-threatening danger, and for national security intelligence-gathering interviews.