Law
1:28 pm
Mon July 21, 2014

By Putting Interrogations On Tape, FBI Opens Window Into Questioning

Originally published on Mon July 21, 2014 3:35 pm

Transcript

CARRIE JOHNSON, BYLINE: Twenty-three states and the District of Columbia already record questioning of people in police custody. But federal law enforcement had long refused to take that step until this month. Mark Giuliano is the deputy director of the FBI - the highest ranking agent in the bureau.

MARK GIULIANO: So it used to be that we actually had to get permission to record. And now we're at the point where we actually have to get authority not to record.

JOHNSON: The world has changed, and Giuliano says the FBI is starting to change along with it.

GIULIANO: Juries are starting to really feel as though we should be recording interviews. I think a lot of folks see it on TV. There is an expectation.

JOHNSON: For years the FBI had refused. Agents worry that introducing a recording device would disrupt the rapport they develop with suspects or reveal details about their methods. But many of those fears proved unfounded after the Justice Department launched a pilot program. Sally Yates is the U.S. attorney in Atlanta who helped usher in the practice.

SALLY YATES: One of the chief concerns among the investigative agencies had been that defendants would be reluctant to talk if they knew that they were being recorded. And, in fact, that just wasn't the case.

JOHNSON: Peter Neufeld, co-founder of The Innocence Project, says the change means a lot for law enforcement and defendants.

PETER NEUFELD: Although on the one hand it's long overdue, it's an extraordinary move forward on their part.

JOHNSON: Neufeld predicts the shift by the feds will spur a couple dozen state holdouts to start recording interrogations, too.

NEUFELD: I think that recording, although it's not perfect, will go a long way to not only creating a neutral record, not only helping police, but also being able to demonstrate when a false confession occurs.

JOHNSON: That's because the recordings will capture the questions from FBI or DEA agents allowing judges and juries to see if police are planting crucial details in the mind of a suspect. Again, Sally Yates.

YATES: It captures the defendants' precise words. You know, there will be no dispute over exactly what he or she said or didn't say. It captures their demeanor and also, importantly, it captures the agents' questions the agents' conduct as well.

JOHNSON: Around the same time the Justice Department announced it would record interrogations as a matter of practice, a federal appeals court offered fresh evidence of why that matters. The Ninth Circuit Court of Appeals in California threw out the confession of an 18-year-old Navajo man with intellectual disabilities after the court reviewed audio tapes and transcripts of his questioning. Keith Swisher, a professor at Arizona Summit Law School, represented the man. Swisher talked about the issue with NPR in general terms - arguing that even innocent people can be coerced into false confessions under pressure from authorities.

(SOUNDBITE OF ARCHIVED RECORDING)

KEITH SWISHER: It's just that some point in that process many of us will give them the answer these authorities want to hear. It's even a more dangerous situation when you have intellectually disabled individuals being interrogated or you have young individuals being interrogated.

JOHNSON: In cases where interrogations are recorded, Swisher says, courts can now go straight to the tape which offers a far more neutral recitation of what actually happened behind closed doors in the police station. Carrie Johnson, NPR News, Washington. Transcript provided by NPR, Copyright NPR.