[Update: The Justice Department announced on May 22, 2014 that it will now require the videotaping of interrogations of suspects in most instances. However, the policy does not close off the prosecutors' easy way to avoid getting evidence which might exonerate or exculpate a witness or make it difficult or impossible to build a case or threaten that witness: just avoid interviewing the witness at all. That is exactly what Eric Dixon went through several years ago, when in response to prosecutors' threats he offered to answer any questions prosecutors might have had, with only one condition -- that the session be videotaped. Not surprisingly, the offer to answer questions, to sit for an interview, was declined. Read Eric Dixon's account here.]
If the FBI wants to talk to you, they may be setting a trap for you where you walk into the interview totally innocent, and are totally vulnerable to being charged with a crime afterwards, no matter what you say.
[See of federal prosecutors being suspiciously hesitant to ask any questions when the one condition of a videotaped session was imposed.]
Without a tape-recording of what you actually said, it's much easier for the FBI to prosecute you by simply using its 302 to claim you said something -- that you never said.
And this malevolent strategy is useful only when the FBI cannot prove you've done anything wrong -- or when you're totally innocent. When there's real evidence of wrongdoing, that should remove any temptation to manufacture a crime.
Think about this the next time you want to report suspected wrongdoing. The friendly interview you have, when you think you are doing the right thing, may actually be a spider web designed to trap and catch the unwary in arguably false or contradictory statements or omissions. You walk in innocent and leave guilty. Now how's that for deterring crime?
So what happens when the sole arbiter of what a witness says in an FBI interview is the 302 Report written by an FBI agent? If that witness should later be compelled to testify at a grand jury proceeding (leading to an indictment of the target of the investigation) or at the trial itself, he is under tremendous pressure to testify consistently with what the 302 report claims he told the agents when interviewed. Should a witness give testimony that is in conflict with the 302 report, he opens himself up to a felony conviction –either he had lied to the FBI in his initial interview, or he is lying to the grand jury or the court (or the congressional committee) in his testimony. Either way, he remains stuck between the Scylla of perjury and the Charybdis of a false-statements charge. Few question the veracity of the 302 report; after all, who will a jury more likely believe, a single witness or two upstanding FBI agents swearing that what they wrote in their 302 report accurately represents what the witness said when interviewed? When the feds suspect that a witness might tell a tale at the grand jury or at trial that is inconsistent with the prosecution’s favored factual scenario, the prosecutors will usually show him or his lawyer the 302 report. It becomes clear to the witness that he either must stick to the 302 version, or else risk a false statement or perjury charge when he testifies differently under oath.
This little known but quite ubiquitous system is one of the reasons that Harvard Law professor Alan Dershowitz coined his oft-quoted aphorism that federal prosecutors and FBI agents teach witnesses “not only how to sing, but how to compose.”