Recording Arrests and Interrogations

The FBI has a policy that agents cannot use recording devices/systems when interviewing people who are arrested or are the subject of a criminal investigation; The “302” black hole. “Form 302” is the form used by the FBI, a “302” is a handwritten summary, written by an FBI agent, after conducting an interview. 300px-FBISeal.png

This policy is widely followed by Florida Sheriffs, Fort Lauderdale Police, DEA investigations, the Office of the Statewide Prosecutor in Florida, and Florida Department of Law Enforcement.

Nationwide, most State and local police agencies do not permit police to record contact with citizens, arrestees, witnesses and on and at crime scenes. The only exception is the DUI car-cameras that many police cruisers use to record DUI roadside examinations.

Criminal defense attorneys have raised Due Process arguments that contact with the government, in which a citizen’s constitutional rights are in play, is subject to Due Process review. Also argued are it is a violation of best-evidence rules. In prosecutions in Fort Lauderdale, where the Broward Sheriff’s Office is the primary policing agency, an officer writes a “probable cause affidavit”. Prosecutors base their decision to file criminal changes or decline after reading the Probable Cause Affidavit. There is increasing pressure to use electronic recording devices, such as audio and video recording systems, but police agencies resist.

Criminal lawyers, and I am one of them, have filed motions to strike affidavits from police officers as Due Process violations. We are asking the courts to require in-custody interrogations be recorded. The tension rises from the very real conflict between permissible interrogation techniques and the reality that they can offend sensibilities but not violate the law. Example: the United States Supreme Court has ruled that in the course of an interrogation it is acceptable for police to assert false statements to elicit a response. It is called lying by laypersons, but it is considered an acceptable interrogation technique. Police can tell an arrestee that their co-defendant has confessed and asserted that you are the shooter. The police can tell a detainee that they have witnesses that do not exist, video recordings that do not exist, evidence that does not exist, and that the other person arrested was an undercover cop. In courtrooms, a video of a police officer lying before a confession is elicited may offend jurors and be disregarded, or cause the jurors to acquit and to express offense at these “aggressive interrogation techniques.”
Check out these articles for on the subject:
Constructing Truth: the FBI’s (non)recording policy

Unrecorded Testimony

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