Why Doesn’t the FBI Videotape Interviews?

Michael Rappaport at Law and Liberty:

…if the FBI believes that an interviewee has lied during the interview, he or she can be prosecuted for false statements to the government. The penalty for this is quite serious. Under 18 U.S.C. 1001, making a false statement to the federal government in any matter within its jurisdiction is subject to a penalty of 5 years imprisonment. That is a long time.

How does the FBI prove the false statement? One might think that they would make a videotape of the interview, which would provide the best evidence of whether the interviewee made a false statement. But if one thought this, one would be wrong, very wrong.

The FBI does not make videotapes of interviews. Apparently, there are FBI guidelines that prohibit recordings of interviews. Instead, the FBI has a second agent listen to the interview and take notes on it. Then, the agent files a form—a 302 form—with his or her notes from the interview.

What is going on here? Why would the FBI prohibit videotaping the interviews and instead rely on summaries? The most obvious explanations do not cast a favorable light on the Bureau. If they don’t tape the interview, then the FBI agents can provide their own interpretation of what was said to argue that the interviewee made a false statement. Since the FBI agent is likely to be believed more than the defendant (assuming he even testifies), this provides an advantage to the FBI. By contrast, if there is a videotape, the judge and jury can decide for themselves.

…One might even argue this is unconstitutional under existing law. Under the Mathews v. Eldridge interpretation of the Due Process Clause, a procedure is unconstitutional if another procedure would yield more accurate decisions and is worth the added costs. Given the low costs of videotaping, it seems obvious that the benefits of such videotaping for accuracy outweigh the costs.

See also this excellent piece by Harvey Silverglate.

Comments

hell take out a cell phone and record the interview. What is the FBI afraid of? People might not cooperate if they are recorded. The FBI can lie to you during an interview but if you lie to them.....

'What is the FBI afraid of? '

Device security comes instantly to mind, and not only in a counter intelligence context (the FBI is responsible for things investigating former heads of American intelligence agencies having unacknowledged communications with the Russian ambassador).

Law enforcement in the U.S. regularly and routinely exploits various weaknesses in digital devices (some of those weaknesses being introduced at their behest, apparently), and may just have a certain reluctance to expose their internal operations to the sorts of tactics used by the FBI et al.

(And a free bit of advice for the truly paranoid - weigh your digital devices, and then reweigh then before every use - this allows you to detect any hardware that may have been introduced between that initial weighing and the one showing a variant. A pro tip from a defense attorney I know, who also revealed that when his client finally revealed his password, the various law enforcement people in the room breathed out in relief after his client had typed in roughly the 12th character, and kept typing - the password was over 40 characters in length. And as it turns out, there was nothing of interest to law enforcement - his client had been telling the truth about just testing out encrypting his drive.)

Knowing what we know now why would anyone talk to the FBI?

At this point the best thing we could do is disband the FBI, appoint a special prosecutor to look into their crimes and misdemeanors and re-establish an FBI based on honesty, honor and good legal practices.

Why indeed? Your options are hire a lawyer, be an obstruction to justice, or open yourself wide to prosecution.

https://corporate.findlaw.com/litigation-disputes/how-to-avoid-going-to-jail-under-18-u-s-c-section-1001-for-lying.html

"What if you are absolutely convinced that you didn't do anything to help your former employer and that you are entirely innocent of wrongdoing? Since you have nothing to hide, is it safe to talk? There can still be real danger in speaking to a government agent in these circumstances. To begin with, you are not qualified to know whether you are innocent of wrongdoing under federal criminal law ."

Not talking can be procedurally (not legally, but good luck splitting that hair) construed as guilt and/or hindering a federal investigation, not to mention the plain fact of pissing off people with the power to really mess up your life even if you're completely innocent.

5th Amendment: "...nor shall be compelled in any criminal case to be a witness against himself..."

FBI: Oh hi there.

As I understand, a judge recently ruled that any person acting in their official government capacity can be recorded. :D https://www.washingtontimes.com/news/2018/dec/10/project-veritas-case-judge-patti-b-staris-rules-am/

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So use a standalone video camera. No internet connection, and the only security issue is identical to the "security" of the agent's memory and the 302. Give the interviewee a copy (or his defense attorney) on the scene, so any doctoring/editing would be detected.

This is a nonsense excuse designed to mask the opportunity for the FBI to perjure itself with impunity.

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'The most obvious explanations'

Include that the FBI is a government agency that is pilloried for extragance if, for example, in 1995, each agent would have had his own video recorder.

'if there is a videotape, the judge and jury can decide for themselves'

Or not - Flynn's interviews, to give a concrete example, involve matters that require relatively high security clearances. Yes, we all know that to the extent possible, all communications involving the Russian ambassador are recorded, but such recordings are generally not considered suitable for court proceedings. They are also the basis on which Flynn was convicted of lying to the FBI. Something that remains more than a touch mysterious, even after he admitted to knowing that such lying was a crime, being part of his selling out the U.S. in the words of a judge who seems likely to sentence him to jail time, over against the advice of Mueller's prosecution team recommending no jail time. (That someone who was originally a Reagan appointee to the judiciary clearly has an older fashioned idea of what law and order means is not a surprise, one would have assumed.) But why would an Obama appointee to head a major intelligence agency lie by denying he had conversations with the Russian ambassador, knowing full well that agencies such as the one he previously headed are extensively recording whatever telecommunications they can?

And in a broader sense, written records are still considered more relevant in a legal context (one is welcome to observe how slowly the wheels of justice turn, obviously), being a much more condensed form that allows for more rapid review, and much easier to file in a fashion that is not dependent on equipment or formats.

But it strange to see that we keep using the word 'videotaping' when it is simply a video recording using a digital device.

Even weirder is that the FBI didn't think Flynn was lying to them, Mueller made that up all on his own.

Even weirder is how a judge, after requesting and reading the FBI material, thinks Flynn deserves to be jailed, while ignoring the request from Mueller's team to not have Flynn serve any jail time.
'FBI didn't think Flynn was lying to them'

Well, who knows if the FBI thought that - Vice President Pence certainly thought Flynn lied to him concerning recorded conversations Flynn had with the Russian ambassador. Conversations the then National Security Adviser denied having.

'Jan. 12, 2016: The Washington Post reports Flynn and Kislyak spoke several times as the sanctions announcement was unfolding.

Jan. 15, 2017: Pence discusses the calls between Flynn and Kislyak on CBS’s “Face the Nation,” saying “they did not discuss anything having to do with the United States’ decision to expel diplomats or impose censure against Russia.”

Jan. 20, 2017: Trump and Pence are sworn into office.

Jan. 24, 2017: Flynn denies to FBI agents that he discussed the sanctions with Russian officials.

Jan. 26, 2017: Acting Attorney General Sally Yates tells the White House counsel that Pence, and other top officials, made statements about Flynn’s actions that were not true.

Feb. 9, 2017: Pence learns about Yates’ warning, according to NBC News. The Washington Post reports Flynn discussed sanctions with Kislyak.

Feb. 13, 2017: Flynn resigns, saying he had he had “inadvertently briefed the vice president-elect and others with incomplete information regarding my phone calls with the Russian ambassador.”

Feb. 14, 2017: Pence spokesman Marc Lotter said the vice president “became aware of incomplete information that he had received Feb. 9, last Thursday night, based on media accounts. He did an inquiry based on those media accounts.”' https://eu.usatoday.com/story/news/politics/2017/12/10/pence-flynn-and-russia-investigation-timeline-key-events/935046001/

The entirety of the Flynn saga ignores the elephant in the room: By what pretense was Flynn's identity and words in what was to him a private conversation made public? I thought we had laws about the government needing warrants and, in the case of foreign intercepts, the AG gives approval to unmask the American's identity.

Thus, the revelations about Flynn were either a gross violation of his civil rights and/or Sally Yates and DOJ officials implemented a strategy to target Trump and members of his new administration.

The Flynn prosecution is proof of "spying" on the Trump administration yet the nation and its civil libertarians yawn. I assume this is because the "victim" is Trump. That shouldn't make it right.

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Illegal, but justified

"Leaking Flynn's name to the press was illegal, but utterly justified"

https://thehill.com/blogs/pundits-blog/the-administration/319955-yes-leaking-flynns-name-to-press-was-illegal-but

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The judge appears to have been trying to admonish Flynn to withdrawal his guilty plea and challenge it as a corrupt product of undue coercion by scaring him the consequences of not doing so. Trouble is Flynn's son is still being held as a hostage, and Flynn is acting a true father.

Bingo

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Expense doesn't explain a prohibition on recordings of interviews; for quite a long time some form of recording has been sufficiently cheaper than the time of a listening-in second FBI agent that nobody would have complained about the added cost. Sure, expense might explain why they'd use audiotape instead of video in 1985 and even 1995, but not why recording was banned.

Similarly, any explanation based on a court preference for written documents doesn't, at all, explain an outright prohibition on supplementing the existing procedure with a recording.

The only reason to outright prohibit recording of interviews is to make sure no objective evidence exists to contradict FBI assertions of what was said in the interview. Every other claim that's been advanced is ludicrous.

"The only reason to outright prohibit recording of interviews is to make sure no objective evidence exists to contradict FBI assertions of what was said in the interview." That's about the size of it.

Sadly, yes. If there were recordings the FBI would lose its "flexibility".

I'm really confused.

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You're right, but it's more subtle than merely screening out contradictory evidence. It is preventing the defendant's attorney from shaping perceptions of what jurors see with their own eyes. If jurors see it, then it is a battle of competing narratives between defense and prosecution attorneys. If they don't see it, then it is a battle of credibility that cops usually win.

Vidoe is Interpretation vs. Interpretation as opposed to testimony which is Facts vs. Facts.

Also remember that a defendant cannot be compelled to testify against himself. If there is video, he doesn't have to testify. His testimony is on film. But if LEOs or other witnesses testify without video, then a defendant is often forced to consider waiving his 5th in order to present contrary facts.

An innocent defendant always wants video. For a guilty one, it depends on the circumstances and what defense counsel thinks he can win on: narrative or credibility.

Video is no more interpretation than an observer's handwritten set of notes used to make a report after the fact.

Video is fact, and like all facts, can then be interpreted, for good or bad. Same as testimony.

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"The only reason to outright prohibit recording of interviews is to make sure no objective evidence exists to contradict FBI assertions of what was said in the interview. Every other claim that's been advanced is ludicrous."

So, the recordings of HW Bush during the debate were excellent evidence he did not care about Americans and thus should be the second loser, Perot the 3rd loser, and Clinton the 1st loser because the debate recordings proved he cared the most.

After all, voters got evident that was totally true and objective presented to the by the objective news as well as the "prosecutors" seeking to convince the voters judging the case of HW not deserving reelection.

Think I'm biased? Ok, consider the totally objective recordings of Gore in his debate with GW Bush. As well as in other recorded public statements.

Of course, Trump sees all the recordings of him to bbe fake news pushed by the fake news biased America hating left.

Why Chuck and Nancy are flat out lying about the voters who do not want to pay for a wall. Voters elected Trump because they wanted to pay higher taxes, or at leeast want their kids and grandkids to pay much higher taxes for a wall. Just listen to or watch to Trump rallis...

Who's paying for the wall?

Mexico!

Who's paying for the wall?

Mexico!

Who's paying for the wall?

Mexico!

The recordings clearly prove Trump won based on higher taxes to pay for Trump's wall, so its the Democrats to blame for the shutdown, the destruction of wealth, and any recession.

Or do you think the recording of Trump prove he's was certain to be the worst president ever, the voters idiotss, and Trump is proving no one believes recording to be objective and accurate?

Context is what distinguishes objective recordings from "fake news".

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A defendant accused of a crime involving state secrets is as entitled to a jury as any other, regardless of security clearance. This provides significant leverage to a defendant in that situation.

"written records are still considered more relevant in a legal context"

Simply, flatly wrong. This is prior the troll making up stuff that isn't true, in order to introduce disinformation. There is no evidentiary disadvantage whatsoever to making a video record of witness interviews.

'A defendant accused of a crime involving state secrets is as entitled to a jury as any other'

Absolutely, which is why often in those cases involving counter intelligence investigations, no charges are brought all.

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"There is no evidentiary disadvantage whatsoever to making a video record of witness interviews."

You underestimate the ability of lawyers to twist perception of reality.

The beating of Rodney King and the shooting of Alton Sterling are proof that master manipulators of fact can alter perceptions of what one sees with their own eyes according to their biases.

A simple description is the hardest thing in the world to do this with. These statements are often vague and conclusory. They shouldn't be admissible, but they have powerful effects on weak minded fact finders.

At that point, it is a battle of credibility determinations - a battle that cops almost always win.

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"Include that the FBI is a government agency that is pilloried for extragance if, for example, in 1995, each agent would have had his own video recorder."

Oh please -- recording devices are prohibitively expensive? That's your argument? Local cops can be equipped with dash and body cams, but the FBI doesn't have room in the budget!? Or will be criticized for buying what is now basic equipment for law enforcement?

"Or not - Flynn's interviews, to give a concrete example, involve matters that require relatively high security clearances."

And electronic record is no more or less vulnerable to dissemination than a paper record. In fact, unlike paper notes, an electronic record can be encrypted. But that vast majority of FBI interviews do not involve issues of national security -- and the FBI doesn't record any of them. Which is outrageous.

"And in a broader sense, written records are still considered more relevant in a legal context (one is welcome to observe how slowly the wheels of justice turn, obviously), being a much more condensed form that allows for more rapid review, and much easier to file in a fashion that is not dependent on equipment or formats."

Oh brother -- transcripts can be prepared with the recording preserved to provide proof of accuracy if ever needed. Are you really defending these dodgy, illiberal practices just because Trump?

'recording devices are prohibitively expensive'

In 1995? Sure - each cassette cost a couple of bucks, there would be the necessary space to save (over a year) what would likely be a few million cassettes, and someone would have to put that cassette into a VCR. Paper is much easier.

1995 was not picked by mistake. One could have a slightly more interesting discussion in 2005 (though phones with cameras were still on the pricey side, especially with video capability), and by 2015, well, sure, having Facebook or Youtube handle the details of interviews involving counter intelligence investigations would not be a technical problem, per se.

'And electronic record is no more or less vulnerable to dissemination than a paper record.'

Actually, considerably more vulnerable. Possibly you have heard of a certain Snowden, who carried more than a few armfuls of paper documents out of a secure facility?

'In fact, unlike paper notes, an electronic record can be encrypted.'

The NSA finds such faith in encryption an important asset in keeping America safe.

'transcripts can be prepared with the recording preserved'

Any idea how much it would cost to prepare a court admissible transcript of each FBI interview?

'Are you really defending these dodgy, illiberal practices just because Trump?'

Actually, what was intended is to point out that the rate of technical change is considerably high than the rate of institutional change. and that the older system is one that has been in place for a while. A system that judges and lawyers seem fully comfortable with, actually.

And what does Trump have to do with FBI practices or responsibilities?

But here is the final bit of fun - it is much easier to manipulate data. If you don't trust the FBI with paper, there is no reason to trust them if they were to use video recordings instead - 'Morph Cut is a video transition in Premiere Pro that helps you create more polished interviews by smoothing out jump cuts between sound bites.

A common challenge that comes with editing footage with a "talking head" is that the subject can stutter, make frequent use of "umms", "uhs", or unwanted pauses. All of which keep you from having a clean, continuous sequence without the use of jump cuts or cross dissolves.

Now, you can effectively clean interview dialog by removing unwanted portions of a clip and then apply the Morph Cut video transition to smooth out distracting jump cuts. You can also use Morph Cut to effectively rearrange clips in your interview footage to ensure a smooth flow without any jumps in visual continuity.

Morph Cut uses an advanced combination of face tracking and optical flow interpolation to create a seamless transition between clips. When used effectively, a Morph Cut transition can be so seamless that it looks as natural as shooting the video without unwanted pauses or words that can break the narrative flow.' https://helpx.adobe.com/premiere-pro/using/morph-cut.html

That is three year old commercial technology, by the way.

The faith in a video recording is touching in an age where manipulating them has grown routine.

You are welcome to consider the FBI illiberal, and it undoubtedly often is. Whether an agent writes down notes or uses a video recording changes very little if you already believe the FBI is distorting information in investigations.

Actually, considerably more vulnerable. Possibly you have heard of a certain Snowden, who carried more than a few armfuls of paper documents out of a secure facility?

There is no inherent requirement that digitally recorded interviews be kept online in any form. They could be filed in filing cabinets on encrypted media that is *much* smaller than the equivalent paper copies. And paper, does not have to be physically carried out--there are such things as digital cameras, you know. Access the filing cabinet with the encrypted digital media, and you need both the cabinet and decryption key. With paper, just getting into the cabinet will do.

The NSA finds such faith in encryption an important asset in keeping America safe.

Do you suspect the NSA has secretly proved P=NP? No, the NSA can't crack strong, properly done encryption.

Any idea how much it would cost to prepare a court admissible transcript of each FBI interview?

The cost of 1 FBI agent during the interview plus one clerical person to transcribe would surely be less than 2 FBI agents for each interview (with one acting as a vastly overpaid stenographer). And remember, possible errors in transcription can always be challenged and corrected by going back to the recording.

If you don't trust the FBI with paper, there is no reason to trust them if they were to use video recordings instead.

The bar for fabricating evidence by maliciously editing video is much higher than simply 'mishearing' witness statements that are not recorded. And forensic analysis can reveal video edits (even where the human eye cannot readily detect them). But ideally, the interviewee or their lawyer should receive a raw copy of the video at the conclusion of the interview (obviously, that's not a security issue because the interviewee already knows everything in the recording).

Whether an agent writes down notes or uses a video recording changes very little

I disagree. And I'm quite sure you would too in any situation where the politics cut in a different direction (e.g. local police interrogating a minority suspect).

'There is no inherent requirement that digitally recorded interviews be kept online in any form.'

Depends what you mean by 'online.' What Snowden took out is not normally considered 'online' either. The data will be kept, just like paper documents, in a fashion that allows for distribution and copying. In similar fashion to the data Snowden walked out with.

'The bar for fabricating evidence by maliciously editing video is much higher'

With current software and normal government resources? No.

'And forensic analysis can reveal video edits'

Sort of - just like it can determine when record, pause, and stop were pressed.

'or their lawyer'

Of course - and their lawyer should have every right to record the conversation, without relying on the FBI at all. Generally, you are allowed to have a lawyer present (let us not get into the current state of anti-terrorism laws, which is appalling in terms of justice, or how counter-intelligence operations works, which often do not lead to criminal charges due to the sensitive nature of the information that would be revealed in court).

'And I'm quite sure you would too in any situation'

You either think the FBI is doing a good job (in which case you are simply ignoring the history of the FBI and being extremely foolish), or you ensure that you have a lawyer present, one who attempts to ensure that objective accuracy is maintained. Basically, I would have thought that every commenter here has an attorney available to consult before interacting with law enforcement. Grand juries are something else again, obviously. And it isn't as if lying to the FBI is the only way to lie to a part of the government and be jailed, as Cohen demonstrates with his guilty plea concerning lying to Congress.

Having the FBI use a device to record a conversation is undoubtedly a small step forward - until youtube videos of FBI investigators become a standard part of the information provided in court. The guilty will still look guilty, and the innocent will continue to be trampled, if only because of the inevitable taint of suspicion associated with being investigated by the FBI.

After all, everyone can read the (unredacted) portions of Flynn's 302 (here is an untested link - https://www.documentcloud.org/documents/5633416-Flynn-302.html )

Do you honestly think that video would help when a former head of the DIA appointed by Obama and National Security Adviser appointed by Trump lied about conversations with Kisylak? To use one recent prominent example.

'local police interrogating a minority suspect'

Why should there be any difference whether it is local police or the FBI - one assumes that a minority suspect is aware of the right to have a lawyer present, and would take full advantage of that right to prevent their testimony from being misused.

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There are a few reasons to not allow recording that aren't nefarious. For example, criminals may be more reluctant to help if they knew they were being recorded. They may have lied earlier, for example (we're talking criminals here, after all; perjury isn't exactly a major moral quandary to someone who's murdered someone!), and would be reluctant to contradict their previous statement. If the FBI only uses written records, it's easier to...I don't want to say "fudge the record", but to make sure that the earlier lie is presented in the best light. Where as with a recording, it is what it is.

Then there are undercover agents. Once an undercover agent is made they can never go under cover again--and they're easy to make. If the FBI routinely took video recordings of their interviews, folks who weren't recorded would be under a lot more scrutiny by the criminals they work with, resulting in dead agents.

It's also a good check against the agent doing the interview. Video recordings can be lost. Having a second agent recording the interview can act as a check against abuse. It's not likely to, but it's the sort of thing that many managers would try.

There's also an inherent conservatism in this line of work. I don't mean "Yeah Trump! 'Murica!" Conservatives; rather, it takes the legal system a LONG time to catch up with modern tech. Field geologists still use little yellow field notebooks, despite the fact that numerous more efficient and effective methods are available--because if we get called into court, the court will prefer our field notebooks to any other recording device. Some modern devices aren't even admissible. And that's for sampling a well, where no lives are at stake. The FBI is going to experience this in a much more dramatic fashion.

What the FBI is doing isn't necessarily good, but it makes a certain amount of sense.

I love how you guys are intentionally missing the point. (I wonder what prevents you from criticizing the FBI in "these troubled times"?)

Take your 1995 videocam expense complaints and stuff them - obviously an audio recording would suffice.

And take your "people won't help the FBI if they are being recorded" complaints and stuff them, too -- all we need is a law that says you can't prosecute someone for lying without audio evidence.

The FBI is covering its own ass here, and that's all. And you're fine with it as long as the target is orange. Sad and pathetic.

You don't worry about legal ramifications of your work very much, I take it.

You also have a very poor understanding of unintended consequences. By stipulating the only admissible evidence you remove from prosecution whole swaths of criminal activities (stolen valor and accounting fraud are two that spring immediately to mind--and lawyers WILL try to expand this to include them). Further, consider who stores this evidence: Police, FBI, courts, that sort of people. The question isn't whether these people would abuse that privileged position, but only whether they'd be descent enough to attempt o hide it.

You would, in essence, be handing dirty cops (and their ilk) a get-out-of-jail free card. On top of the ones they already have.

Please don't speculate about why I post what I post, or who I'm fine with the FBI attacking. I said nothing about that in my post, and your attempts to poison the well do more to discredit you than they do to discredit me. I have heard every single reason I listed above given as a reason to demand written evidence, so I presented them as potential reasons. I haven't even said whether I agree with them or not, much less whether I'm okay with the FBI's current behavior. Stick to the issue under debate; don't psychoanalyze your opponents.

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Ha ha ha!! This is so funny. Based on the distinguished history of video evidence of bad things holding accountable law enforcement?!?! *wipes away tears* *gasps for breath*

Video evidence resulted in Walter Scott's police-officer murderer being convicted and sentenced to 20 years. Video evidence from police dashcams and bodycams (as well that take by bystanders with cell phones) has made a huge difference in many cases.

Video with the audio was the main reason cops were acquitted of beating Rodney King. The blow-by-blow showed him repeatedly ignoring police commands.

By the way, ignoring commands or not, I believe the police were wrong. He was sufficiently subdued such that four cops could cuff him without much risk. The force was clearly excessive given the alternatives.

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"...it seems obvious that the benefits of such videotaping for accuracy outweigh the costs."

Not if the benefit of not videotaping is to subvert justice. In light of recent internal revelations, I never thought I would say that the CIA and NSA are now more trustworthy than the FBI...but here we are. Within the community the accepted wisdom is that counter-intelligence (FBI's sole responsibility...at least acknowledged) makes good liars for the wrong reasons. The FBI is now filled with excellent liars, and they're patting themselves on the back for it.

The FBI has taken a huge credibility hit over the past 2 years. Ten years ago I would have assumed very high credibility by default, and given them the benefit of the doubt. That's gone.

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But for video, the public would think Robert Finicum deserved to be shot.

FBI doesn’t like video because it’s a check on their power.

https://www.google.com/amp/s/www.latimes.com/nation/la-na-fbi-oregon-shooting-20170628-story.html%3foutputType=amp

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'I never thought I would say that the CIA and NSA are now more trustworthy than the FBI'

That you consider any of them more 'trustworhy' is amazing.

I probably should have qualified that statement by adding that my definition of "trustworthy" for these people lies somewhere on a spectrum between Satan, the father of lies, and Walter Mitty.

Even at the bottom of a very low barrel, it's all relative.

They are all liars (welcome to having a security clearance, among other things), which is not relative at all.

Yes, one can debate what 'lying' means in this context - one of my three letter agency relatives was quite good at not lying - he 'worked for the government, doing government work.' More than that was never provided (other relatives, one who worked for the same agency, and another whose clearance was connected to their work for an agency that officially did not exist before 1975 or so - unless you had the proper clearance - had high enough clearances that they actually did know some of what that government work involved).

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Why are these people talking to the FBI? You don't have to answer their questions. So why do it? Especially if you have something to hide.

Good point. So, why do a lot of people do it?

1. Being in custody, or even just being interviewed by the FBI or the police is inherently intimidating. A lot of people can't stand up to the pressure inherent in that situation;

2. Some people naively think they can talk their way out of trouble and then the authorities will leave them alone;

3. Actually, one generally does need to talk to the FBI. A lot of people interviewed by the FBI and/or the police are not interviewed as suspects but as witnesses. Some suspects are actually innocent. It is not uncommon that the sole crime for which a person is charged (and ultimately convicted) is perjury. See, for example, Michael Flynn.

Correct. People have a psychological need to please. One should never say a word to a cop, including when one is actually innocent. Not only will anything you say be used against you, facts which should support you will be twisted against you.

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Flynn did not know he was under investigation and believed he was talking to colleagues.

So 4) Government ruse

'Flynn did not know he was under investigation'

Um, a former head of the DIA denying conversations with Russian Ambassador Kisylak that were already available for investigators to read does not need to be under investigation to know that lying about such conversations is wrong.

Which is the truly mysterious thing here - considering that it is reasonable to assume that a man like Flynn has full awareness of just how extensive telecommunications monitoring is, and how the U.S. government treats people such as National Security Advisers that lie about having conversations with a Russian, why would he lie in the first place, at least in terms of obvious legal jeopardy?

As demonstrated by how Sullivan treated him in court, Sullivan being a judge with apparent full access to the FBI material.

You're assuming 1) that he did actually lie and 2) that he believed he was lying. He may have believed every word he was saying.

Why would he plead guilty if he didn't lie and could possibly skate? Because they probably have something more serious on him.

He plead guilty because they've already bankrupted him, and told him they'd do the same to his son. Has nothing to do with guilt or innocence.

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Is audio taping even less expensive than video taping these days? are costs identical?

Does Alex's post begin to suggest that we have convinced ourselves that "the video standard of truth" is the highest standard of verification permissible in this glorious tech-larded age?

As long as our stupid technologies consistently fail to engage our tactile, gustatory, and olfactory senses, they continue to consistently rob us and impose "sensory deprivation".

Damn our stupid technologies, frankly, and the firms sponsoring and marketing them.

A cheap digital voice recorder is $20. The one I've got is good enough to record interviews (did it for a client project) and for recording the kids singing Christmas carols (it's a personal item, not a company one). Better ones will have less distortion, better microphones, etc., but $20 gets you one that's good enough for this sort of thing.

Video recording seems to run $50. So a bit more than twice as expensive. Still, we're not talking something that's cost-prohibitive here.

On the other hand, find a laptop that DOESN'T have video and audio recording capabilities these days. I haven't seen one in years.

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'Is audio taping even less expensive than video taping these days?'

Definitely, and if some years old information is accurate (well, it also involved testimony to Congress), very easy to do with basically all voice communications in the U.S. 'Earlier reports have indicated that the NSA has the ability to record nearly all domestic and international phone calls -- in case an analyst needed to access the recordings in the future. A Wired magazine article last year disclosed that the NSA has established "listening posts" that allow the agency to collect and sift through billions of phone calls through a massive new data center in Utah, "whether they originate within the country or overseas." That includes not just metadata, but also the contents of the communications.

William Binney, a former NSA technical director who helped to modernize the agency's worldwide eavesdropping network, told the Daily Caller this week that the NSA records the phone calls of 500,000 to 1 million people who are on its so-called target list, and perhaps even more. "They look through these phone numbers and they target those and that's what they record," Binney said.

Brewster Kahle, a computer engineer who founded the Internet Archive, has vast experience storing large amounts of data. He created a spreadsheet this week estimating that the cost to store all domestic phone calls a year in cloud storage for data-mining purposes would be about $27 million per year, not counting the cost of extra security for a top-secret program and security clearances for the people involved.' https://www.schneier.com/blog/archives/2013/06/evidence_that_t.html

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How many TV shows have we all watched where a cop says "your partner has already spilled the beans?"

He's lying, but if he's talking to the guy who stole our car, we are on board. We want a confession.

Why doesn't he tape it?

Because any lies or manipulation would engender sympathy with a jury. Poor guy, they tricked him, never mind the fact that he was behind the wheel of your car.

So I am fine with this middle line. We don't allow law enforcement to beat anyone into confession, but we allow them to lie. Because we think they're getting at the truth.

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And if this was meant to be a crypto Flynn defense, shame on you for that reason. The endpoint matters. If the endpoint was truth justice was done.

I would not expect any less from you.

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Bugger me! Does that mean that the FBI doesn't have a recording of their two palookas murdering the young man who was a witness to the lives of the two brothers fitted up with the Boston bombing?

But in that case how is the FBI to train up-and-coming murderers?

The two brothers 'fitted up' were identified by security cameras. And, no, they didn't behave like innocent men when they were identified.

Their presence was identified. But they were not carrying the rucksacks that apparently enclosed the bombs; their rucksacks were of a different colour.

I don't suppose they were innocent men - they were Chechens, weren't they? But I suspect they may not have been guilty of that particular crime. I dare say that's why the chap who had known them was murdered. I mean, why else was he murdered? Even the FBI doesn't murder witnesses to suspects' lives on mere whim, does it?

I would definitely like to see a videotape of the last minutes of the life of Todashev, the Chechen cage fighter friend of the Tsarnaev Bomb Brothers, who was gunned down by an FBI agent partway through what the FBI says is his confession to the Waltham ritual triple murder on the 10th anniversary of 9/11.

That was one of those real life events, like the death of Vince Foster in 1993, that sound like a plot contraption in a bad thriller.

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USAM 9-13.001

Not spam, but also not quite applicable - 'This policy establishes a presumption that the Federal Bureau of Investigation (FBI), the Drug Enforcement Administration (DEA), the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), and the United States Marshall Service (USMS) will electronically records statements made by individuals in their custody in the circumstances set forth below.'

Custody is not the same as having the FBI knock on your door and ask to be invited in.

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"FBI believes that an interviewee has lied during the interview, he or she can be prosecuted for false statements to the government."

Violation of free speech. Unless ordered by a court, we are free to tell the FBI anything. The only exception is yelling fire in a crowd, prohibited.

Oh yes oh, I remember your famous defense of Bill Clinton on similar grounds!

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That belief is on a different plane of reality. Perjury and misrepresentations in investigations have never been protected by the First Amendment.

Fraud. Slander. Defamation. Threats. Fighting words. Copyright infringement. Child pornography. False advertising. Disrespect to a military superior. Obscenity. Hatch Act violations. Contempt of court.

Do you require any more exceptions to free speech?

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This has been an issue for many decades. I don't recall that two agents need to be present for a 302 to be made. The defense lawyer can cross examine as to the fact that there is no video of any supposed statement and the jury can then decide who is telling the truth. The argument that the nitty gritty of police work may not appeal to a jury is a reasonable argument and it probably leads to more convictions of guilty people -- than lots of cross examination about whether the agent was fair to the defendant and whether when he said this or that to the defendant he was telling the truth.

Given where law enforcement credibility is headed in the medium/long term, they might soon prefer to do videotaping. The last jury I was on definitely didn't take LE's statements at 100% true

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Best information could be taken out from a suspect when they are assured that they are not recorded

To be subbgame perfect, the witness must believe that his chances in court for misleading law enforcement are better without a recording. That is apparently not the case.

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This has been a great thread for identifying the heretofore closeted state-shtuppers ‘round these parts.

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No one has come up with the correct answer, so let me posit one:

The government has to turn over to the defendant exculpatory evidence. A written record of notes is easy to redact for information not responsive to the request, whereas a video has to be reviewed again...time time time, even though there might be a transcript created--who has the time to snip pieces of audio to turn over. Finally, people lie, then dissemble and ultimately tell the truth during an interview. The lie part might have to be turned over to a co-conspirator as exculpatory evidence, whereas if the agent waits until the witness tells the truth, the truth, and not the earlier lie, will be the record, and it won't have to be turned over because it is not exculpatory.

How many times have you engaged someone and changed a story during the course of a conversation after being pressed about an earlier comment. That's how you find truth.

The video tape is Hearsay.

No. As long as the agency 1) properly preserved and stores it, 2) submits evidence of authenticity, and 3) had and followed procedures for collection of video evidence, it will almost always be admissible as long as it is relevant and material to the matter to be proven.

Using video in court is routine and commonplace, especially for confessions during interrogation.

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It took the various sports leagues a long time to accept challenging referees’ calls via recordings of the action. Law enforcement is often slow to adopt innovation. I think that the FBI will come around, but it took a while to make simple recording of police/citizen interactions on the street acceptable.
I did see one pass interference call yesterday where I thought the replay exonerated the defender, but the call was not overturned.

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Truth isn't the goal, a conviction is. Interview subjects should only respond to written questions with written answers and be able to retain the originals signed by the interrogators. If video or audio recordings of interviews are made, the interviewed should retain the originals of those as well.

A good lawyer might have helped him.

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If anyone feels they would rather rely on the written record of an FBI agent than a video tape they are either stupid or naïve.

I have a friend who was a mid level accountant that was being interviewed by the FBI. They were after a high level executive. They kept pressuring my friend to agree with their interpretation of things. My friend said that is not what happened at all. Finally one of the agents reached down into his brief case took out a jar of vaseline and a stick and said "unless you co-operate this is what is going to be used on you in prison." My friend said that tis outrageous you are just trying to intimidate me I will tell the jury what you just did and the FBI agent said who do you think they are going to believe me or you. This incident never happened because it wont be in the report we write up.

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The US system seems to have at least two major flaws:

1) No taping of the interviews.

2) Lying to the FBI is a crime? Lying to police authorities should never be a crime. This is not standard in other constitutional states. Lying to the police is an existential right.

You have the right to remain silent. That is more powerful than the right to lie.

Lying misleads the pursuit of truth that is central to justice. Saying nothing is not morally wrong. Lying is.

But lies must be material in order to be a crime. Bill Clinton could have lied about his affairs all he wanted unless and until it became material to a legal case. Having sexual contact with a subordinate was material to a claim of sexual harassment of a subordinate.

. . .the pursuit of truth that is central to justice.

Truth has nothing to do with justice, whatever that is. The choreography of the state coercion apparatus is calculated to satisfy state aims. That's why somebody like Irwin Schiff can die in federal prison at age 87 for telling people that there's no legal requirement for them to pay income taxes.

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A lawyer who allows an FBI interview has a fool for a client.

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