New Insights On Federal Policy Regarding Recorded Interrogation
In the mish-mash of material produced by DOJ to the House Judiciary Committee (as part of its US Attorney firing investigation), one set of memos caught my eye. There was apparently a robust debate within DOJ, and various investigatory agencies, over the question of whether federal policy ought to mandate the recording of interviews and interrogation. Apparently, certain jurisdictions – particularly the US Attorney for the District of Arizona – put pressure on the feds to allow routine recording of such interviews. This proposal was successfully resisted, although Arizona seems to have been permitted to adopt such a policy on a pilot basis.
I was particularly intrigued by the handwritten annotations to one memo. In the missive, from the FBI Office of the Geneal Counsel Investigative Law Unit (Choi Jung-Won) to all FBI field offices, the author notes that juries might be turned off by real-world interviewing techniques.
As all experienced investigators and prosecutors know, perfectly lawful and acceptable interviewing techniques do not always come across in recorded fashion to lay persons as a proper means of obtaining information from defendants. Initial resistance may be interpreted as involuntariness and misleading a defendant as to the quality of the evidence may appear to be unfair deceit.
More surprising than this relatively mundane plea to bury investigatory strategies (that might – oops! – result in false confessions) was the handwritten sidenote that read “So we want to hide the truth? Don’t want jury to reach its own judgment?” This marked-up memo seems to have come from files of the otherwise plain talking Bill Mercer. You remember Bill Mercer? The one who told a deep-sixed USA that replacing the old prosecutors with fresh blood would help pad the resumes of the new appointees, making them better situated for future nominations to the federal bench. It’s not clear if Brutally Honest Bill penned these comments, or if they came from some guy named “Ron” (who is probably Ron Tempas from the DOJ.)
In either case, it was certainly refreshing to hear someone on the inside of law enforcement actually willing to mock the claim that juries must be protected from the truth of the interrogation process. All the more so if it it came from someone so close to the top.