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Wednesday, July 27, 2011

FBI Resisting Recording Witnesses

[Originally published July 27, 2011 and now updated May 23, 2014.]

[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.

That is the message of an excellent article today by Forbes blogger Harvey Silverglate (author of "Three Felonies a Day: How The Feds Target The Innocent") on the FBI policy AGAINST recording interviews of targets and subjects (that is, potential witnesses and defendants) of investigations.

[See  of federal prosecutors being suspiciously hesitant to ask any questions when the one condition of a videotaped session was imposed.]



One would think that an agency committed to upholding the law and fighting (and deterring) serious federal crime would have the institutional confidence to allow interviews to be tape-recorded or video-recorded.  After all, if the subject of the interview is willing to be recorded, what's the problem, right?  A recording ensures accuracy and minimizes the potential for misunderstanding, misrepresentation and outright misconduct, doesn't it?

The implication of Silverglate's very effective piece is that these functions are exactly the problem, that the FBI very much wants to avoid recordings of interviews in order to compel reliance on written reports, produced by none other than the FBI, as the best -- and only -- documentary evidence of what was and was not said in that interview.

Silverglate effectively points out that a witness who talks unrecorded can be subject to either a perjury or false statements charge. The latter charge, one might recall, tripped up Martha Stewart.

If the person being interviewed has the confidence to be held to what he or she said on tape, what is the government's problem, right?  By extension, if the government is confident in its information, or "case," and in the integrity of both its procedures and personnel, what then remains the problem with a recording?

The message one must recognize is this:  Trust the FBI to accurately portray anything you say, and you do so at the risk of losing your freedom due to the credibility automatically imputed by many if not most jurors towards anyone wearing a uniform or badge. 

For civilians, of course, not talking, or insisting on a recorded interview and declining to talk under any other circumstances, is a safer, more prudent and, in all fairness, essential course of action.  This approach, which should only be considered by those who sincerely believe in both their innocence and the open-mindedness of the investigators to consider the possibility of one's actual, factual innocence (and furthermore, still believe such after relying on the advice of trusted, experienced counsel).


The bottom line:  Any conversation you have with any federal employee -- FBI agent or not -- places you at risk of criminal prosecution.  (You need refer only to the small print sentence about Section 1001 of the United States Code, Title 42 on most federal agency forms and applications.)  Your risk may depend considerably, if not entirely, on the honesty and integrity of the agent or employee you encounter.  If you have someone who's tired, doesn't remember accurately, or is willing to embellish, misrepresent or flat-out lie, you could risk going to jail without having done anything wrong.

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?   

But there's yet another issue to worry about.  Silverglate also warns about the danger of coercing false testimony from cooperating witnesses. The crux of Silverglate's warning is summed up in this passage from his article (linked above from Forbes):


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.”
The article contains several useful links, which I reproduce here for your reference.
1.  Silverglate on the professional ambition fueling prosecutors, and the "revolving door" between the Department of Justice and the private white-collar defense bar.

2.  An internal FBI memo, obtained by the New York Times, on establishing procedures for when to record interviews.

Very worthwhile reading. I actually recommend bookmarking this.

Eric Dixon is a New York lawyer who investigates complex matters in a variety of fields.  He is available for comment or consultation at edixon@NYBusinessCounsel.com.

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