The FBI and other federal police agencies join the 21st century

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 and video records of statements by criminal suspects without special approval.

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

There was no news release or press conference to announce the radical shift. But a DOJ memorandum —obtained by The Arizona Republic — spells out the changes to 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 to all federal prosecutors and criminal chiefs from James M. Cole, deputy attorney general.

"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.
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Attorneys, researchers and longtime 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 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 ranging from terrorist Osama bin Laden to TV star Martha Stewart to Oklahoma City bombing defendant Terry Nichols, and 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, psychological profiling and other advanced techniques. 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 court decrees.

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.

Drizen 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," adding, "What have we got to hide?"

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. While 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 noted. "But you've got two agents supporting each other. It's your word against theirs. Who are they (jurors) going to believe?"

McDonald haled the close of "an insane policy" at DOJ, declaring, "Bravo! It's about time. It uses science to establish the truth ... That's a no-brainer."

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.

"I cannot understand why this hasn't happened sooner," Hammond said.