Harvard Law Review Harvard Law Review Harvard Law Review

Criminal Procedure

Dep’t of Justice, New Department Policy Concerning Electronic Recording of Statements

Department of Justice Institutes Presumption that Agents Will Electronically Record Custodial Interviews

Since 2003, the number of states requiring law enforcement officers to electronically record some or all interviews conducted with suspects in their custody has grown from two to at least twenty-two.1×1. See Thomas P. Sullivan, Nat’l Ass’n of Criminal Def. Lawyers, Compendium: Electronic Recording of Custodial Interrogations (2014), https://www.nacdl.org/WorkArea/DownloadAsset.aspx?id=33287&libID=33256 [https://perma.cc/CGW9-7YAH] (including Alaska, Arkansas, California, Illinois, Indiana, Maine, Maryland, Michigan, Minnesota, Missouri, Montana, Nebraska, New Jersey, North Carolina, Ohio, Oregon, Texas, Vermont, Wisconsin, and the District of Columbia). Until recently, the U.S. Department of Justice (DOJ) has resisted this trend; under its previous policy, the DOJ’s three chief investigative agencies — the Federal Bureau of Investigation (FBI), the Drug Enforcement Administration (DEA), and the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) — rarely recorded custodial interviews.2×2. See Thomas P. Sullivan, The Department of Justice’s Misguided Resistance to Electronic Recording of Custodial Interviews, Fed. Law., July 2012, at 62, 63. However, on May 22, 2014, the DOJ announced a substantial change in its policy, creating a presumption that FBI, DEA, ATF, and United States Marshals Service (USMS) agents will electronically record3×3. Electronic recording refers to both audio and video recording. However, the new DOJ policy, as well as most state laws, prefers video to audio recordings, see, e.g., Memorandum from James M. Cole, Deputy Att’y Gen., to Assoc. Att’y Gen. et al. 2 (May 12, 2014), http://s3.documentcloud.org/documents/1165406/recording-policy.pdf [http://perma.cc/59MM-E4DE] [hereinafter DOJ Memorandum], because “videos illustrate the gestures, facial and body movements of the participants that cannot be fully and precisely reproduced . . . by audio recordings,” Thomas P. Sullivan, Recording Federal Custodial Interviews, 45 Am. Crim. L. Rev. 1297, 1306 (2008). custodial interviews.4×4. Press Release, Dep’t of Justice, Attorney General Holder Announces Significant Policy Shift Concerning Electronic Recording of Statements (May 22, 2014), http://www.justice.gov/opa/pr/attorney-general-holder-announces-significant-policy-shift-concerning-electronic-recording [http://perma.cc/9G5Z-B3BJ]. This policy change is an important step in the right direction, reflecting a growing movement that has recognized the benefits of recording interviews; however, the new policy puts in place little express accountability for failure to comply with the presumption. Since experience with state and local recording policies suggests that programs without enforcement mechanisms are often undermined by ineffective and inconsistent application, the DOJ should ensure strong enforcement of the internal accountability measures in its policy, and Congress should be prepared to step in with statutory enforcement mechanisms if needed.

The federal government is relatively late to the game on promoting electronic recordings of custodial interviews. Reformers have been calling for more accurate record keeping during interrogations since the 1930s, and decades later state supreme courts began to heed their advice.5×5. Richard A. Leo, Police Interrogation and American Justice 292–93 (2008). In 1985, the Alaska Supreme Court became the first state high court to require recording when it held recording a suspect’s interrogation to be a requirement of state due process.6×6. Stephan v. State, 711 P.2d 1156, 1159–60, 1164 (Alaska 1985). The Minnesota Supreme Court also imposed a recording requirement in 1994,7×7. State v. Scales, 518 N.W.2d 587, 592 (Minn. 1994). and a handful of state supreme courts have similarly instituted rules on recording interviews in recent years.8×8. See, e.g., Ark. R. Crim. P. 4.7; Ind. R. Evid. 617; N.J. Ct. R. 3:17. In 2003, Illinois became the first state to pass a statute mandating recording when it required police to electronically record custodial interrogations in homicide investigations.9×9. 725 Ill. Comp. Stat. 5/103-2.1 (2012); see also Monica Davey, Illinois Will Require Taping of Homicide Interrogations, N.Y. Times (July 17, 2003), http://www.nytimes.com/2003/07/17/national/17VIDE.html. At least fifteen states and the District of Columbia have followed Illinois and passed laws requiring recording under certain circumstances,10×10. See Cal. Penal Code § 859.5 (West Supp. 2014); Conn. Gen. Stat. § 54-1o (2013); D.C. Code §§ 5-116.01 to .03 (2012); Me. Rev. Stat. Ann. tit. 25, § 2803-B (2007); Md. Code Ann., Crim. Proc. §§ 2-402 to 2-403 (LexisNexis 2008); Mich. Comp. Laws Serv. §§ 763.7–.11 (LexisNexis Supp. 2014); Mo. Rev. Stat. § 590.700 (Supp. 2012); Mont. Code Ann. §§ 46-4-406 to -411 (2013); Neb. Rev. Stat. §§ 29-4501 to -4508 (2008); N.M. Stat. Ann. § 29-1-16 (LexisNexis Supp. 2013); N.C. Gen. Stat. Ann. § 15A-211 (West 2013); Ohio Rev. Code Ann. § 2933.81 (LexisNexis 2010); Or. Rev. Stat. § 133.400 (2013); Tex. Code Crim. Proc. Ann. art. 38.22 (West 2013); 2014 Vt. Acts & Resolves 1113; Wis. Stat. § 972.115 (2011–2012). and several police departments across the country have individually created their own policies promoting or requiring recording.11×11. For an overview of police departments currently recording custodial interviews, see Sullivan, supra note 1.

Before the recent shift, the DOJ’s position was that custodial interviews generally should not be recorded. The major federal law enforcement agencies strongly resisted recording interrogations, citing fears that recording would interfere with rapport building, lay juries and judges would misinterpret acceptable interviewing techniques as improper, and the implementation would be logistically difficult.12×12. See Memorandum from FBI Office of the Gen. Counsel to All Field Offices et al. 3 (Mar. 23, 2006), http://www.nytimes.com/packages/pdf/national/20070402_FBI_Memo.pdf [http://perma.cc/9WJ9-HF7A] [hereinafter FBI Memorandum] (outlining the FBI’s reasons for objecting to recording procedures); Sullivan, supra note 3, at 1301–02 (same for the DEA and ATF). These concerns led agencies to erect barriers to electronic recording and to rely instead on note-taking and agent memory. For example, the FBI’s standard procedure was for an agent to take notes during the interview and later compile a summary known as a Form 302.13×13. See, e.g., United States v. Azure, No. CR-99-30077, 1999 WL 33218402, at *1 (D.S.D. Oct. 19, 1999). This discussion and the literature on this topic primarily focus on the FBI because FBI agents constitute the majority of the DOJ’s law enforcement officers. See Brian A. Reaves, Federal Law Enforcement Officers, 2008, Bureau Just. Stat. Bull., June 2012, at 3. Additionally, recording policies generally do not affect USMS officers because they rarely conduct interviews seeking confessions from suspects. See Sullivan, supra note 3, at 1301 n.11. And while less is known about the recording policies of the ATF and DEA prior to the recent policy shift, as recently as 2006 both agencies opposed both a mandatory recording policy and a pilot program exploring the benefits of recording, id. at 1301–02, and there is no reason to believe that either agency’s practices on recording custodial interviews differ greatly from the FBI’s. The Agency had an exception to this practice that allowed recording if the Special Agent in Charge (SAC) “deem[ed] it advisable.”14×14. FBI Memorandum, supra note 12, at 3. In all but the three largest FBI field offices, there is one SAC who runs the entire office.15×15. See Thomas H. Ackerman, FBI Careers 19 (3d ed. 2010). Therefore, although the FBI claimed that its policy allowed “flexibility” in deciding when to record interviews,16×16. FBI Memorandum, supra note 12, at 3. internal DOJ analysis suggests that the policy actually inhibited agents’ ability to exercise discretion regarding whether or not to record their own interviews, and created a “heavy presumption” against recording.17×17. See Sullivan, supra note 3, at 1301 n.14; Julie Renee Linkins, Note, Satisfy the Demands of Justice: Embrace Electronic Recording of Custodial Investigative Interviews Through Legislation, Agency Policy, or Court Mandate, 44 Am. Crim. L. Rev. 141, 158 (2007) (“Anecdotes suggest that few interrogations actually get recorded, with agents preferring to rely on traditional note taking, summarization, and signed sworn statements.”).

Recent developments, however, expose the shortcomings of the DOJ’s previous policy. After decades of experience on the state level with recording policies, many of the FBI’s concerns about recording interviews have been proven false. For example, numerous studies have shown that “recording does not cause suspects to refuse to talk, fall silent, or stop making admissions.”18×18. Leo, supra note 5, at 303. And even where the concerns may prove well-founded, exceptions to recording requirements can easily address the problem; for instance, an exception could be granted for technological difficulties.19×19. See, e.g., DOJ Memorandum, supra note 3, at 3. Moreover, some juries have met unrecorded interrogations with increasing skepticism in recent years, as evolving technology has also led to heightened expectations for “scientific” evidence.20×20. See Kristian Bryant Rose, Of Principle and Prudence: Analyzing the F.B.I.’s Reluctance to Electronically Record Interrogations, 9 Okla. J.L. & Tech., no. 64, 2013, at 18 (noting how “assumptions about the availability and propriety of technology” could lead to increased suspicion from jurors when presented with unrecorded confessions). And exonerations based on DNA evidence have sparked a change in public perception of the likelihood of false confessions and wrongful convictions.21×21. See Leo, supra note 5, at 295.

The DOJ’s new policy, which went into effect on July 11, 2014, flips its previous presumption against recording to one in favor of it. Agents no longer need to obtain supervisory approval to record interviews: FBI, DEA, ATF, and USMS agents are now expected to electronically record statements of individuals suspected of any federal crime in their custody when in a “place of detention with suitable recording equipment.”22×22. DOJ Memorandum, supra note 3, at 2. “Place of detention” is defined as “any structure where persons are held in connection with federal criminal charges where those persons can be interviewed” and includes federal, state, local, and tribal law enforcement facilities. Id. “Suitable recording equipment” means “an electronic recording device deemed suitable by the agency for the recording of interviews that . . . is reasonably designed to capture electronically the entirety of the interview.” Id. The recording should begin when the suspect enters the interview room and should continue throughout the entirety of the interview with recording equipment in plain view or hidden.23×23. Id. at 3. Any decision not to record an interview that falls under the presumption should be documented and made available to the U.S. Attorney and reviewed as part of periodic assessments of the policy.24×24. Id. The DOJ also encourages agents to record in situations not covered by the presumption, such as interviews conducted with persons not in custody or not within a place of detention.25×25. See id. at 1.

However, the memo carves out four exceptions. First, the presumption does not apply if the interviewee agrees to give a statement on the condition that it is not recorded.26×26. Id. at 3. Second, the agent and prosecutor may decide not to record an interview conducted for the purpose of gathering information related to public safety or national security.27×27. Id. This exception refers to New York v. Quarles, 467 U.S. 649 (1984), see DOJ Memorandum, supra note 3, at 3, in which the Supreme Court held that Miranda warnings are not required before “police officers ask questions reasonably prompted by a concern for the public safety.” Quarles, 467 U.S. at 656. Third, an interview need not be recorded if it would not be “reasonably practicable,” for example, because of an “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.”28×28. DOJ Memorandum, supra note 3, at 3. Fourth, the SAC and U.S. Attorney may overcome the presumption in favor of recording if they believe there is a “significant and articulable law enforcement purpose” to do so.29×29. Id. The DOJ notes that “[t]his exception is to be used sparingly.” Id. Significantly, the DOJ makes clear that the policy does not “create any rights or benefits, substantive or procedural, enforceable . . . by any party against the United States.”30×30. Id. at 1–2.

The DOJ’s new presumption in favor of recording custodial interviews represents a significant improvement compared to the Department’s previous procedure. There are numerous reasons to record custodial interviews — benefiting both defendants and law enforcement — and under the new policy, federal agents will record far more interrogations than before. However, additional enforcement mechanisms may be needed to realize this new presumption’s many benefits. The DOJ should bolster the internal accountability measures in its policy to increase compliance and promote consistency across the department. Additionally, Congress should be prepared to pass a federal statute if the courts are needed to check the wide discretion that agents and prosecutors have under the current scheme.

The benefits of recording custodial interviews are numerous — including increased reliability and efficiency — and largely uncontested today. Most importantly, recording makes it easier for judges to identify false confessions by allowing them to bypass the interpretation of the agent taking notes and writing the report, providing judges with a more objective means of assessing the veracity of a defendant’s confession.31×31. See Gail Johnson, Commentary, False Confessions and Fundamental Fairness: The Need for Electronic Recording of Custodial Interrogations, 6 B.U. Pub. Int. L.J. 719, 735 (1997). But see Adam Benforado, Frames of Injustice: The Bias We Overlook, 85 Ind. L.J. 1333, 1356–58 (2010) (arguing that videotapes of interrogations shot from the viewpoint of the police create a strong bias against the suspect that may do more harm than good); Linkins, supra note 17, at 160 (“[S]ome caution may be warranted because recordings might introduce emotional biases into jury decision making.”). In a study on exonerations in the United States between 1989 and 2003, researchers found that 15% of exonerated defendants had confessed to crimes they had not committed.32×32. Samuel R. Gross et al., Exonerations in the United States, 1989 Through 2003, 95 J. Crim. L. & Criminology 523, 544 (2005). Electronic recording cannot entirely remedy the problem, but recorded interviews have already led some judges to suppress confessions that, while questionable on tape, would likely have been admitted without a recording.33×33. For example, in State v. Jeffrey, No. 03-16977A (Fla. Cir. Ct. Oct. 16, 2006) (order granting motion to suppress statement), the court suppressed the defendant’s statement based on a videotape of the confession, which showed the defendant parroting back the detective’s questions as his “confession” and ending his statement by asking if he “did it right.” Id. at 15–16. Judge Pineiro went on to note that before this case he did not believe it was necessary to “tape the entirety of a defendant’s interrogation,” but that based on his experience he came “to believe that, regardless of the practicality, [videotaping] might be imperative.” Id. at 17. Recording custodial interviews may also lead to greater efficiency and reduced costs.34×34. See Leo, supra note 5, at 302 (explaining that the “front-end costs” of purchasing and installing recording equipment “will be repaid many times over by the savings in the time and resources of police, prosecutors, judges, and jurors”). When recording, interviewers no longer have to worry about taking notes and can focus instead on conducting the interview.35×35. See Thomas P. Sullivan, Police Experiences with Recording Custodial Interrogations, 88 Judicature 132, 134 (2004) (observing that suspects are more nervous and speak less when officers write copious notes during an interview). Moreover, recording statements results in fewer suppression motions and quicker resolutions of those suppression motions that are litigated.36×36. Major Edward W. Berg, Videotaping Confessions: It’s Time, 207 Mil. L. Rev. 253, 268 (2011).

However, a policy that strongly encourages recording interrogations may not be enough; state and local recording policies without enforcement mechanisms have often been inconsistently applied. For example, in 2006, the Iowa Supreme Court strongly encouraged law enforcement officers to record custodial interviews.37×37. See State v. Hajtic, 724 N.W.2d 449, 456 (Iowa 2006). Shortly afterward, the Iowa Attorney General announced that he considered the decision to require recording, and the Iowa Department of Public Safety (DPS) adopted a general policy that required electronic recording of all custodial interviews.38×38. See Brian R. Farrell & Sara K. Farrell, Essay, Watching the Detectives: Electronic Recording of Custodial Interrogations in Iowa, 99 Iowa L. Rev. Bull. 1, 10–11 (2013). The DPS policy made clear that it did not create any statutory or constitutional rights or remedies for a failure to record. Id. at 11 n.75. But a 2011 survey found that, while most Iowa agencies recorded at least occasionally, only about half followed the DPS policy and recorded in all situations.39×39. Id. at 13. Additionally, due to budgetary constraints, policies without enforcement mechanisms can be stalled while police resources are focused on higher priorities. For example, in 2012, New York City implemented a policy to videotape interrogations for murder, sex crimes, and felony assaults.40×40. James C. McKinley Jr. & Joseph Goldstein, Confession in ‘Baby Hope’ Killing Was Taped, but the Interrogation Was Not, N.Y. Times, Oct. 23, 2013, http://www.nytimes.com/2013/10/24/nyregion/police-didnt-tape-baby-hope-questioning.html. But a year later, only 28 out of more than 76 detective squads even had an interview room set up with recording equipment, and only two of those were recording homicide interrogations.41×41. Id.

Although the federal context is distinct,42×42. The smaller number of law enforcement officers in a single command structure may ameliorate or eliminate the problems seen on the state level with implementing recording policies. the DOJ should still guard against uneven application of its new policy by ensuring strong internal accountability mechanisms. Already, agents are required to document “[any] decision not to record any interview that would otherwise presumptively be recorded under” the new policy,43×43. DOJ Memorandum, supra note 3, at 3. but it is unclear exactly what is required in this documentation. Simple notification is a good first step, but interpreting the requirement to involve a detailed explanation of why the presumption was violated would increase compliance. Empirical research suggests that law enforcement officers who know they must explain their actions to a third party make fewer mistakes.44×44. See Andrew E. Taslitz, Police Are People Too: Cognitive Obstacles to, and Opportunities for, Police Getting the Individualized Suspicion Judgment Right, 8 Ohio St. J. Crim. L. 7, 66 (2010). Moreover, the more detailed the justification required, the less likely officers will act without good reason.45×45. Id. The policy also indicates that supervisors should periodically review documentations of noncompliance.46×46. See DOJ Memorandum, supra note 3, at 3. That is a good start, but expanding this requirement to include releasing noncompliance information to the public would increase transparency.47×47. Releasing information on noncompliance broken down by exception would also go a long way toward assuaging (or confirming) the fears about the exceptions rendering the rule useless that many commentators expressed when the new policy was announced. See, e.g., Harvey Silverglate, DOJ’s New Recording Policy: The Exceptions Swallow the Rule, Forbes (June 2, 2014, 12:14 PM), http://www.forbes.com/sites/harveysilverglate/2014/06/02/dojs-new-recording-policy-the-exceptions-swallow-the-rule [http://perma.cc/8UZL-KPUB]. This information could then be used to determine whether the DOJ’s self-policing is adequate.

If internal accountability measures prove insufficient to compel compliance with the recording presumption, external accountability measures may become necessary. The policy makes extremely clear that it does not confer on defendants any right to have one’s interview recorded.48×48. See DOJ Memorandum, supra note 3, at 1–2. This lack of external accountability is not unique to this policy. The paragraph explaining that the policy is for “internal Department of Justice guidance” only is boilerplate language used in many DOJ policies. See, e.g., U.S. Dep’t of Justice, United States Attorneys’ Manual § 9-27.150(A) (1997), http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/27mcrm.htm#9-27.150 (using similar language in policy laying out principles of federal prosecution); Memorandum from James M. Cole, Deputy Att’y Gen., to All United States Attorneys 4 (Aug. 29, 2013), http://www.justice.gov/iso/opa/resources/3052013829132756857467.pdf [http://perma.cc/4VJX-WZUT] (using similar language in memorandum giving guidance on marijuana enforcement). However, it is beyond the scope of this discussion to assess the sufficiency of DOJ accountability in general. For an overview of problems with and possible solutions for DOJ guidelines, see Ellen S. Podgor, Department of Justice Guidelines: Balancing “Discretionary Justice,” 13 Cornell J.L. & Pub. Pol’y 167 (2004). And because there is no constitutional right to have one’s interrogation electronically recorded, to compel recording would require a federal statute.49×49. Although the Supreme Court has not addressed the issue, every federal circuit to confront the question has held that due process does not require the recording of custodial interrogations. See, e.g., United States v. Meadows, 571 F.3d 131 (1st Cir. 2009); United States v. Boston, 249 F. App’x 807 (11th Cir. 2007); Brown v. McKee, 231 F. App’x 469 (6th Cir. 2007); United States v. Tykarsky, 446 F.3d 458 (3d Cir. 2006); United States v. Williams, 429 F.3d 767 (8th Cir. 2005); United States v. Montgomery, 390 F.3d 1013 (7th Cir. 2004); United States v. Huber, 66 F. App’x 123 (9th Cir. 2003); Trice v. Ward, 196 F.3d 1151 (10th Cir. 1999); United States v. Yunis, 859 F.2d 953 (D.C. Cir. 1988). Courts only have a duty to enforce agency policies when the Constitution or federal law requires policy compliance. See United States v. Caceres, 440 U.S. 741, 754–55 (1979). Fortunately, several state statutes mandating the recording of custodial interviews have been passed in the last decade and can provide guidance. State policies generally have one of three enforcement methods: exclusion, presumed involuntariness, or jury instructions. In exclusion states, if an interview was not recorded and no statutory exceptions apply, the statement will not be admissible.50×50. See, e.g., Ind. R. Evid. 617 (“[E]vidence of a statement made by a person during a Custodial Interrogation in a Place of Detention shall not be admitted against the person unless an Electronic Recording of the statement was made . . . except upon clear and convincing proof of any one of the following [exceptions] . . . .”). In presumed involuntariness states, an unrecorded statement will be subject to the rebuttable presumption that it was involuntary, and therefore not admissible, unless the government overcomes the presumption by proving the statement was voluntarily given.51×51. See, e.g., D.C. Code § 5-116.03 (2012) (“Any statement of a person accused of a criminal offense . . . obtained in violation of [the statute requiring custodial interviews to be recorded] shall be subject to the rebuttable presumption that it is involuntary. This presumption may be overcome if the prosecution proves by clear and convincing evidence that the statement was voluntarily given.”). In jury-instruction states, the prosecution may present evidence from custodial interviews that, in violation of the statute, have not been recorded, but the court will instruct the jury about the legal requirement to record statements.52×52. See, e.g., Or. Rev. Stat. § 133.400(3)(a) (2013) (“If the state offers an unrecorded statement . . . [and] is unable to demonstrate, by a preponderance of the evidence, that an exception . . . applies, upon the request of the defendant, the court shall instruct the jury regarding the legal requirement [to record custodial interviews] and the superior reliability of electronic recordings when compared with testimony about what was said and done.”). Federal judges already have the discretion to inform jurors that unrecorded statements are less accurate and reliable; a jury-instruction recording statute would simply make mandatory what is currently discretionary. See Sullivan, supra note 3, at 1332–33. Any of these three options would provide federal agents with greater incentives to record their interviews than the current policy.

If federal law enforcement officers are not held to account for their decisions not to record, the DOJ’s step in the right direction might not go as far as it could or should go to promote reliability and efficiency in criminal proceedings. To give the policy its best chance of effective implementation without outside interference, the DOJ should ensure strong enforcement of its policy’s internal accountability and make information on noncompliance public. If internal measures prove inadequate, Congress should be prepared to enact formal, external accountability mechanisms to incentivize compliance and limit the harm of violations.