Department of Justice To Require Recordings Of Interrogations (And Also Calls For Recording Of Witness Statements)

On May 12, 2014, The Department of Justice Issued a Memorandum calling for the interrogations of suspects to be recorded.  A full article in the New York Times (and link to the DOJ memo) is available here:  http://www.nytimes.com/2014/05/23/us/politics/justice-dept-to-reverse-ban-on-recording-interrogations.html. 

At first glance, this is a tremendous step in the right direction, as the integrity of confessions will be preserved (and enhanced) and there should be a reduction in coerced confessions, claims of coerced confessions, and misinterpreted confessions. 

What remains unclear is how this policy change will effect a court trial.  Will the recordings of all witnesses be available to the defense?  What about government informant witnesses who provide information for use in several trials?  And this is not a Rule of Evidence, so how will an unrecorded out-of-court statement effect a criminal trial?  Time will answer these questions and others.  But in any case, this is a sign of progress.

The substantive portions of the Memo are printed below.

SUBJECT:                    Polic y  Concerning Electronic  Recording of Statements

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 in the circumstances set forth below.

This policy al so encourages agents and prosecutors to consider electronic recording in investigative or other circumstances where the presumption does not apply. The policy encourages agents and prosecutors to consult with each other in such circumstances.

This policy is solely for internal Department of Justice guidance. It is not intended to, does not, and may not be relied upon to create any rights or benefits, substantive or procedural,

enforceable at law or in equity in any matter, civil or criminal, by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person, nor does it place any limitation on otherwise lawful investigative and litigative prerogatives of the Department of Justice.

I.               Presumption of Recording. There is 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, subject to the exceptions defined below. Such custodial interviews will be recorded without the need for supervisory approval.

a.              Electronic recording. This policy strongly encourages the use of video recording to satisfy the presumption. When video recording equipment considered suitable under agency policy is not available, audio recording may be utilized.

b.              Custodial interviews. The presumption applies only to interviews of persons in FBI, DEA, ATF or USMS custody. Interviews in non-custodial settings are excluded from the presumption.

c.              Place of detention.   A place of detention is any structure where persons are held in connection with federal criminal charges where those persons can be interviewed.   This includes not only federal facilities, but also any state, local, or tribal law enforcement facility, office, correctional or detention facility, jail, police or sheriff=s station, holding cell, or other structure used for such purpose.   Recording under this policy is not required while a person is waiting for transportation, or is en route, to a place of detention.

d.              Suitable recording equipment. The presumption is limited to a place of detention that has suitable recording equipment. With respect to a place of detention owned or controlled by FBI, DEA, ATF, or USMS, suitable recording equipment means:

(i)  an electronic recording device deemed suitable by the agency for the recording of interviews that,

(ii)  is reasonably designed to capture electronically the entirety of the interview. Each agency will draft its own policy governing placement, maintenance and upkeep of such equipment, as well as requirements for preservation and transfer of recorded content.

With respect to an interview by FBI, DEA, ATF, or USMS in a place of detention they do not own or control, but which has recording equipment, FBI, DEA, ATF, or USMS will each determine on a case by case basis whether that recording equipment meets or is equivalent to that agency=s own requirements or is otherwise suitable for use in recording interviews for purposes of this policy.

e.              Timing.     The presumption applies to persons in custody in a place of detention with suitable recording equipment following arrest but who have not yet made an initial appearance before a judicial officer under Federal Rule of Criminal Procedure 5.

f.               Scope of offenses.   The presumption applies to interviews in connection with all federal crimes.

g.              Scope of recording.   Electronic recording will begin as soon as the subject enters the interview area or room and will continue until the interview is completed.

h.              Recording may be overt or covert. Recording under this policy may be covert or overt.       Covert recording constitutes consensual monitoring, which is allowed by federal law. See 18 U.S.C. ' 2511(2)(c). Covert recording in fulfilling the requirement of this policy may be carried out without constraint by the procedures and approval requirements prescribed by other Department policies for consensual monitoring.

II.             Exceptions to the Presumption.    A decision not to record any interview that would otherwise presumptively be recorded under this policy must be documented by the agent as soon as practicable.   Such documentation shall be made available to the United States Attorney and should be reviewed in connection with a periodic assessment of this policy by the United States Attorney and the Special Agent in Charge or their designees.

a.              Refusal by interviewee.   If the interviewee is informed that the interview will be recorded and indicates that he or she is willing to give a statement but only if it is not electronically recorded, then a recording need not take place.

b.              Public Safety and National Security Exception.   Recording is not prohibited in any of the circumstances covered by this exception and the decision whether or not to record should wherever possible be the subject of consultation between the agent and the prosecutor.   There is no presumption of electronic recording where questioning is done for the purpose of gathering public safety information under New York v. Quarles.   The presumption of recording likewise does not apply to those limited circumstances where questioning is undertaken to gather national security-related intelligence or questioning concerning intelligence, sources, or methods, the public disclosure of which would cause damage to national security.

c.              Recording is not reasonably practicable. Circumstances may prevent, or render not reasonably practicable, the electronic recording of an interview that would otherwise be presumptively recorded. Such circumstances may include equipment malfunction, an unexpected need to move the interview, or a need for multiple interviews in a limited timeframe exceeding the available number of recording devices.

d.              Residual exception.   The presumption in favor of recording may be overcome where the Special Agent in Charge and the United States Attorney, or their designees, agree that a significant and articulable law enforcement purpose requires setting it aside.   This exception is to be used sparingly.

III.           Extraterritoriality. The presumption does not apply outside of the United States. However, recording may be appropriate outside the United States where it is not otherwise precluded or made infeasible by law, regulation, treaty, policy, or practical concerns such as the suitability of recording equipment. The decision whether to record an interview B whether the subject is in foreign custody, U.S. custody, or not in custody B outside the United States should be the subject of consultation between the agent and the prosecutor, in addition to other applicable requirements and authorities.

IV.           Administrative Issues.

a.              Training.     Field    offices    of   each    agency    shall,   in    connection    with   the implementation of this policy, collaborate with the local U.S. Attorney=s Office to provide district-wide joint training for agents and prosecutors on best practices associated with electronic recording of interviews.

b.              Assignment of responsibilities. The investigative agencies will bear the cost of acquiring and maintaining, in places of detention they control where custodial interviews occur, recording equipment in sufficient numbers to meet expected needs for the recording of such interviews. Agencies will pay for electronic copies of recordings for distribution pre-indictment. Post-indictment, the United States Attorneys= offices will pay for transcripts of recordings, as necessary.

V.             Effective Date.   This policy shall take effect on July 11, 2014.