Wednesday, May 21, 2014


Tough new standards for federal law enforcement investigators such as the FBI, DEA and ATF now set a presumption that agents and federal prosecutors must record statements made by individuals while in custody. 

The policy as defined in the memo also encourages agents and prosecutors to record conversations with suspects even where the presumption does not apply. Although the memorandum expressly states that the policy is solely for internal Department of Justice guidance and does not "... create any rights or benefits, substantive or procedural, enforceable at at law ... by any party against the United States..." the memorandum would seem to be useful if found admissible as evidence of prosecutorial and law enforcement misconduct when statements are not recorded.

For far too long federal law enforcement agents have abused the rights of defendants by failing to properly record custodial conversations. The agents typically fail to record the conversations because they don't want defense lawyers nor judges and juries to hear the actual words of defendants. Instead prosecutors present the agents and their contemporaneous notes of statements as the best proof of the statements. This has lead to many cases in which agents and prosecutors manipulate statements.

In one federal trafficking in cocaine case I handled in the Middle District of Florida in Tampa, the DEA and FBI agents failed to even present my Russian speaking client with a readable Miranda form nor with an unbiased translator. They also failed to record the conversation in order to manipulate my client's statement. At trial a Russian interpreter hired by the defense even established that the DEA translator had very limited knowledge of the Russian language. 

Interestingly, the memoranda states that the presumption to record custodial interviews applies to all federal crimes. This means that law enforcement agents will not be able to skip recordings for cases that do not trigger strict minimum mandatory sentencing requirements such as federal drug cases. But the memorandum does nothing to prevent law enforcement officers and prosecutors from obtaining false confessions with lies and false information.

Prosecutors must remember that their fist obligation is to seek justice rather than convictions. The Department of Justice should be commended for establishing guidelines for government agents and prosecutors that's based on a presumption that justice benefits when statements are recorded. Local and state governments, prosecutors and police departments should immediately begin recording all custodial conversations and Florida judges should force the issue by not allowing any statements into evidence which were not recorded.

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