Federal Agents to Start Recording Post-Arrest Statements

By Zachary Margulis-Ohnuma

In general, federal authorities interview people after their arrests without recording. We advise our clients to invoke their Miranda rights and refuse to make any statements until consulting with an attorney. Experience shows that statements made by defendants when they are first arrested — they are frightened, their guard is down, they don’t know the evidence against them — make matters worse. What’s more, the “statement” is almost never recorded when taken by the FBI, the DEA or other Department of Justice agencies (or by the New York City Police Department). That makes it difficult to rebut what the agent claims the defendant said. The defendant has no chance to explain or elaborate if the agent writes down something wrong.

That’s about to change. Effective in July, the Department of Justice will generally require agents to record — in full — statements taken while a person is in custody. Defendants are still better off demanding a lawyer but at least there will be a record of exactly what was said. Recording will help both sides, so long as they play fair: defendants will know where they stand and not be forced to call federal agents liars if there is disagreement over what was said, the government will have an accurate record and not have to defend against a charge that the agents wrote down the statement wrong. Both sides will be able to show the full context of the statement, which will assist judges and juries at reaching fair and accurate verdicts. When agents fail to record, they will have to explain why they did not follow the policy.

But the new recording policy only applies to Department of Justice agencies: the FBI, the DEA, the Bureau of Alcohol, Tobacco and Firearms, and the U.S. Marshals. It does not apply to agents from the Department of Homeland Security or the CIA. That means that unrecorded statements may still be used in large numbers of drug smuggling and child pornography cases, which are frequently investigated by DHS. At the same time, skilled trial attorneys will have more ammunition to show that Homeland Security’s failure to record is out of step with modern law enforcement practice and, in some cases, used to cover up manipulative interrogations that lead to false confessions.