The DOJ takes a huge step forward in terms of what federal agencies will have to record throughout the course of a suspect’s interrogation.
The Department of Justice quietly issued a memorandum to all U.S. attorneys, criminal chiefs and appellate chiefs on May 12, stating that there must be audio and video recordings of all federal law enforcement interrogations of suspects in custody, starting from July 11.
The memo issuing the change was obtained and published by The Arizona Republic newspaper, owned by Gannett Company. News of the policy change was likely never intended to become public, as the DOJ did not hold a news conference or issue a press release to the media.
The policy change affects agents who work for the FBI, the Drug Enforcement Administration, the Bureau of Alcohol, Tobacco, Firearms and Explosives, and the U.S. Marshals Service. These agencies have historically used agents’ recollections and handwritten notes to prosecute individuals suspected of violating federal laws.
This heavy reliance on arguably unreliable and outdated methods such as memory and handwritten notes has been problematic, since some individuals have been wrongfully convicted after FBI agents inaccurately testified about what they learned or heard a suspect say during the course of an interrogation.
As former U.S. Attorney for Arizona Mel McDonald told The Arizona Republic, the problem with the former “insane” policy that didn’t require that interrogations be recorded, is that when FBI agents testified inaccurately, the suspect had no way to fight back, since disputing what an FBI agent said could lead to additional charges being placed against the suspect for 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?”
While the memo does include some exceptions to when the use of a recording device would be required — for example, if an individual is being questioned on national security-related intelligence or is asked questions related to intelligence, sources or methods — it essentially requires federal agents to record all other interactions with suspects, even those that have not yet been taken into custody or arrested.
The DOJ has not responded to media requests for interviews or for additional information about the new rules or why the change was made. However, attorneys and researchers have applauded the announcement. There is also wide agreement that this change and the implementation of more modern policing standards mark a great step forward that could restore credibility to the U.S. criminal justice system.
Nancy Savage, executive director of the Society of Former Special Agents of the FBI, was one of those who applauded the announcement. She hypothesized that the inevitable policy change was made because juries now expect audio and video evidence to be presented by law enforcement during a trial.
“This is a radical departure,” Savage said. “They want to see it in living color. … I think it’s probably just a move forward.”