The New DOJ Policy for Recording Federal Custodial Interrogations

On July 11, 2014 a new federal policy governing custodial interrogations by federal law enforcement agencies went into effect. That policy, documented in a May 12, 2014 Memo from Deputy Attorney General James M. Cole and supplemented by a videotaped statement by U.S. Attorney Eric Holder (apparently setting the example) established a presumption that the following agencies will electronically record statements made by individuals in their custody in specified circumstances: the Federal Bureau of Investigations (FBI), the Drug Enforcement Administration (DEA), the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), and the United States Marshals Service (USMS).

The new policy “strongly encourages” the use of video recording in circumstances where an individual is in a place of detention following arrest, but prior to an initial appearance before a judicial officer. Interviews in non-custodial settings are excluded from the presumption. The policy describes “places of detention” fairly broadly, but excludes the necessity to record while a person is waiting for transportation, or is en route, to a place of detention.

Each agency is directed to establish its own policies governing the placement, maintenance and upkeep of such equipment, as well as policies for preservation and transfer of recorded content. Notably, this new standard replaces many of these agencies’ current practices, in which agents interview suspects without recording them, take handwritten notes, and then produce a formal report “summarizing” the conversation. Clearly, the Department of Justice has recognized the flaws in criminal prosecutions and allegations of police misconduct which lack recorded interrogations.

“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,” Holder said in a video message announcing the change. “It will allow us to document that detained individuals are afforded their constitutionally-protected rights.” He added that it would 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.”

The Cole memo also notes that the recording may be overt or covert and to the extent the suspect does not wish to be recorded, then a recording need not take place (though the refusal must be documented).

Other exceptions include a “Public Safety and National Security Exception” wherein there is no recording presumption when the questioning is done for the purpose of gathering public safety information or when it is undertaken to gather national security-related intelligence.

Finally, the directive leaves open an exception for non-recording in circumstances where it is not reasonably practical or outside of the United States.

While this policy applies exclusively to the federal agencies noted herein, 21 states and the District of Columbia require recording statewide of custodial questioning in a variety of criminal investigations, as depicted in the table below:

Hopefully, this reform of federal agency custodial interrogations will inspire other states and state agencies to adopt similar policies and laws. Justice is better served by all with greater transparency.