April 2, 2007

Roll Tape

One of the fired US Attorneys got ousted for protesting an FBI policy that forbids taping interrogations of suspects in most criminal investigations. According to the New York Times, Paul K. Charlton tried to demand taped interviews before filing criminal charges in his district in order to press the agency to change its policy. Instead, after a couple of high-profile plea bargains, Charlton found himself out the door:

Paul K. Charlton, the United States attorney in Arizona, was ousted after spending months protesting a Federal Bureau of Investigation policy that, for practical purposes, forbids the taping of almost all confessions, in stark contrast to the practice of many local law enforcement agencies in Arizona and other locations across the country.

Mr. Charlton blamed the F.B.I. policy for the resulting plea bargain in the Navajo reservation assault case, as well as the acquittal of a defendant in a child sexual abuse case and a suspect in a prison murder indictment.

Eight states, by law or court action, mandate taping of interviews with suspects in at least serious felony cases, turning a tape recorder or video camera into an important tool in convictions, like DNA tests, fingerprints and ballistics. More than 450 law enforcement agencies in major cities and smaller jurisdictions also require the taping of certain interrogations.

The F.B.I., a division of the Justice Department, has strenuously resisted the practice unless special permission is granted by supervisors, under the theory that it may discourage suspects from talking and expose juries to interrogation methods that the department would rather not highlight.

But the inability to tape suspects, especially those accused of sexual abuse and domestic violence, can seriously compromise a case, Mr. Charlton and other prosecutors said.

This isn't the first time the FBI policy has generated controversy. In the trial of Terry Nichols for the Oklahoma City bombing, the failure to tape Terry Nichols' interrogation caused the jury to openly question the policy, and may have contributed to their decision to give Nichols consecutive life sentences rather than the death penalty. In the plea-bargain case that Charlton cites, a Native American man attempted to kill his girlfriend. The FBI got a confession, but the defense raised objections based on his potential intoxication and questioned his ability to understand English. A taped interrogation, Charlton claims, would have answered both questions. Since he had none, and since the victim would not cooperate and had a history of suicide attempts, Charlton had to get a plea bargain.

It sounds like a strange excuse in any case. The FBI says that the tapes would possibly offend juries who heard legally acceptable interrogation techniques, and that may be true. However, most juries expect these interviews to be taped, and when disputes arise as to what was said, would find it more than a little odd that an organization like the FBI would not have recorded it.

The agency also told the Times that it would be expensive to have a broad tape-recording system and that suspects might not offer their confessions if they knew they were being recorded. Those sound like excuses. Local and state agencies don't seem to break the bank by installing audio and video recording systems. Some local police and sheriff's offices even install them on their patrol cars to record traffic stops. And it's hard to imagine that a suspect would spill his guts to an FBI agent, but then balk because a tape deck is running.

I suspect that the FBI won't change its policy because of the inherent obstinacy of bureaucracies. If they've never done it before, it would be hard to overcome the organizational inertia to change the policy. This is one policy the FBI should seriously rethink.


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Comments (7)

Posted by Subsunk [TypeKey Profile Page] | April 2, 2007 5:43 AM

Great. First the FBI doesn't have an email system that agents could use to talk to each other about cases, forwarding files on cases and such (this supposedly has been corrected now, but not perfectly). Then the FBI refuses to allow agents to share electronic files with anyone outside the agency. And now the FBI refuses to use technology to tape confessions to use in court cases.

Could our federal law enforcement agencies be any more incompetent when it comes to using the latest methods and technology to catch crooks or terrorists? NO wonder DoD is the only one I trust. And even they are inept by many standards.


Posted by burt [TypeKey Profile Page] | April 2, 2007 7:04 AM

The FBI continues to be seriously dysfunctional. Is it any wonder that other intelligence agencies resist sharing with them. This is not new. Early in WW II a U boat landed a small group of agents on Long Island NY. The agents really didn't want to be agents so they went to the nearest police department and surrendered. The FBI then bragged about the FBI's "capture" of these dangerous agents.

Posted by PersonFromPorlock [TypeKey Profile Page] | April 2, 2007 8:41 AM

The FBI then bragged about the FBI's "capture" of these dangerous agents.
Back in Hoover's day the FBI had a clear vision of it's mission: good press.

I have to wonder if the 'taping' is the reason for this guy's getting fired, or only the excuse. It sounds like an excuse to me.

Posted by Dan S [TypeKey Profile Page] | April 2, 2007 10:14 AM

Yeah, but taping interviews/interrogations might ruin the chance to lose notes in a purjury trap!

Posted by Bender [TypeKey Profile Page] | April 2, 2007 10:29 AM

The FBI isn't going to rethink this, seriously or otherwise. If they did, then they would not be able to place their own spin on what a suspect has said. They would not be able to paraphrase, "based upon their best recollection," instead of reporting the exact words said by the suspect. Indeed, they would not be able to simply manufacture "confessions" and put words in suspects' mouths. As it stands now, if a defendant insists that he did not say what the agent says that he said, then the only way to rebut it is for the defendant to testify, opening the door to all sorts of manipulations by the prosecutor on cross.

The fact that the government is seriously claiming that a twenty-dollar tape recorder -- the kind that every detective and agent no doubt already has in which to dictate his notes -- is proof that the policy is disingenuous at best and outright dishonest at worst.

Posted by LarryD [TypeKey Profile Page] | April 2, 2007 2:52 PM

1) Yeah, I question the policy's wisdom greatly.

2) But the policy doesn't get set by the 93 AGs, and if its' really that important, then the honorable way out is to resign in protest, not violate the policy. Violating the policy just makes you insubordinate.

Posted by Girder [TypeKey Profile Page] | April 3, 2007 9:51 AM


I don’t get the same read of the objection from the F.BI. regarding the recording of confessions. I don’t think that the F.B.I. is worried about offending the jury’s sensibilities. Rather, my take is that they are protecting their interrogation methods from being disseminated to the public.

Under the Federal Rules of Evidence, when one side offers an audio or video recording, the other side may be permitted to show the context of the portion offered. Therefore, when the prosecution attempts to show a defendant’s answer, in this case a confession, the defense may require the question (or statement) soliciting the answer also be shown. This results in the court requiring the showing of essentially all relevant portions of the recording. So unless the F.B.I. turns off the recording device whenever an officer speaks (a cumbersome task), the F.B.I .’s questions and statements to the defendant will be shown at trial and offered into evidence.

Evidence offered in testimony form, including recordings, is preserved in the record in the form of transcripts, and is available to the public. This makes easy pickings for an enterprising author to gather the interrogation portions of transcripts from several trials, and glean considerable insights into the tactics that the F.B.I. uses to interrogate.

Stupid criminals provide their own problems, but unfortunately, some criminals are intelligent, and a few of them are known to read a book or two.