Attorney General Holder Announces Policy Of Recorded Interrogations

Last updated on May 25th, 2014 at 10:55 pm

recording interrogations On Thursday, Attorney General Eric Holder announced a new policy underwhich the DOJ will record statements made by people in Federal custody electronically.  The details were outlined in a memo  released on May 12. Here is the complete text of Attorney-General Holder’s announcement.

Every day, in big cities and small towns across the country, hardworking prosecutors, agents, and investigators perform exceptional work in order to combat violent crime and other threats to the public.  They approach this high-stakes work with the utmost integrity and dedication. The professionalism of our personnel gives us the confidence to be as transparent as possible about how we perform our work.  We at the Department of Justice are committed to ensuring accountability and promoting public confidence in the institutions and processes that guide our law enforcement efforts.  Doing so not only strengthens the rule of law; it also enhances public safety – by building trust and fostering community engagement. That’s why we are announcing a new step to raise our already high standards of accountability.  The Department of Justice is instituting a sweeping new policy pertaining to interviews of individuals in law enforcement custody.  This new policy, which will take effect on July 11th, creates a presumption that statements made by individuals in federal custody, after they have been arrested but before their initial appearance, will be electronically recorded.  The policy applies in a place of detention that has suitable recording equipment, and it encourages video recording whenever possible and audio recording when video is unavailable.  The policy also encourages agents and prosecutors to consider electronic recording in investigative or other circumstances not covered by the presumption. This presumption in favor of recording applies to statements made by individuals in the custody of the FBI, the DEA, the ATF, and the United States Marshals Service.  It allows for certain exceptions—such as when the interviewee requests that the recording not occur or when recording is not practicable. Creating an electronic record will ensure that we have an objective account of key investigations and interactions with people who are held in federal custody.  It will allow us to document that detained individuals are afforded their constitutionally-protected rights.  And it will also provide federal law enforcement officials with a backstop, so that they have clear and indisputable records of important statements and confessions made by individuals who have been detained. This policy will not – in any way – compromise our ability to hold accountable those who break the law.  Nor will it impair our national security efforts.  On the contrary: it will reduce uncertainty in even the most sensitive cases, prevent unnecessary disputes, and improve our ability to see that justice can be served. Federal agents and prosecutors throughout the nation are firmly committed to due process in their rigorous and evenhanded enforcement of the law.  This new recording policy not only reaffirms our steadfast commitment to these ideals – it will provide verifiable evidence that our words are matched by our deeds.  And it will help to strengthen the robust and fair system of justice upon which all Americans depend – and which every American deserves.

As the Attorney-General noted, electronic recordings are the best way to keep an objective record of interactions between law enforcement and people in their custody.  It means that law enforcement will have to be scrupulous in upholding the rights of individuals who are in their custody.  It means that law enforcement will have the best accurate record of confessions and statements. The current practice, which is preferred by Federal law enforcement, is written reports with summaries of statements made.  This method may be highly accurate and highly objective, but a video recording or in it’s absence an audio recording is a complete record. This is a relatively common practice in State and local law enforcement whose time has come.

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According to Josh Gerstein at Politico, Federal law enforcement frowned on the practice. It is a policy that will be welcomed by civil libertarian and criminal reform groups as a form of insurance against coercion and forced confessions in the name of getting someone, anyone to pay for horrific crimes. Pro Publica points to the case of Pedro Hernandez. Hernandez confessed to the kidnapping and murder of 6 year old Etan Patz – 33 years after the crime and after several hours of interrogation which was not recorded. According to Hernandez’s lawyers, their client was manipulated into making a false confession.  The lawyers say he has several of the characteristics that could lead someone to confess to something he didn’t do; including the IQ of a borderline retarded person, mental illness and he confessed to a crime that was well publicized with many of the facts widely known. The interesting thing about this case is the technology was available to record the questioning that led to Hernandez’s confession.  But for some reason, New York’s law enforcement opted against using it.

While I don’t know if this is a case of a false confession or if it’s simply a case of lawyers using the absence of a recorded interrogation to raise doubt, I am certain that recorded interrogations would provide an objective record from which to determine the truth. On the other side of it, video and audio recordings of confessions would be the best evidence to present in court.  Jurors have the advantage of seeing exactly what was said, rather than relying on summaries.  They can observe the demeanors of law enforcement and the accused.   They can have context that might otherwise not exist in written reports, or testimony from memory. Without question, transparency benefits all the actors with a direct interest in a criminal case.  It’s also needed to restore our trust in law enforcement which has given us many reasons to question who it really serves.

We see disparities in the law and who it serves in rulings by the Roberts Court that makes voting harder, but buying politicians easier.  We see it in cases of police brutality, in which the victims are racial minorities and people living in poor neighborhoods.  We see it in laws that criminalize poverty and, in laws that punish people for helping the poor.  We also see an increasingly two tier system of criminal justice where the rich are treated with more lenience than anyone else. They call that affluenza.  After seven DUI’s, wealthy and white Shaun Goodman is sentenced to work release because jail wouldn’t be fair to him.  Oh, and he really needs to go to the Superbowl because that’s a once in a life time opportunity.

Ethan Couch, a wealthy teen in Texas got rehab after killing 4 people while driving drunk. Jacob Lavoro another Texas teenager, but is not wealthy, faces a possible life sentence for baking pot brownies. Robert H. Richards IV, an heir to the Dupont fortune and obviously a 1%er rapes his daughter but escapes jail time because the Judge believes “he will not fare well in jail.”  Meanwhile, children are being jailed for “status crimes” meaning acts that would be legal if they were adults. While we play the role of the world’s moral authority, our war criminals from the Bush Administration paint ugly pictures and make speeches defending torture.  While kids are sent to prison for smoking a joint, bankers who have defrauded people out of their homes continue to influence policy.

Obviously, the DOJ’s new policy on interrogations will not address sentencing disparities, nor will it address the problems of selective prosecutions and our unwillingness to hold our war criminals legally accountable.  It will serve as an equalizer during interrogations.  It’s a start.

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