Monday, May 5, 2014
Kristian Bryant Rose has posted Of Principle and Prudence: Analyzing the F.B.I.’S Reluctance to Electronically Record Interrogations (9 Okla. J.L. & Tech. 64 (2013)) on SSRN. Here is the abstract:
Currently, the F.B.I. maintains a policy that generally precludes electronically recording interrogations and interviews of suspects. Instead, the Bureau relies on “302 reports,” whereby an agent transcribes, by hand, what is said during an interview. But this practice is not without exception. In certain circumstances, the Special Agent in Charge of a field office may exercise discretion to allow the recording of an interview. Nonetheless, the majority of interactions between Special Agents and suspects during interrogations and interviews remain obscured – if not veiled – by analog practices.
A growing body of academic literature suggests concern for the improvidence and due process implications of refusing to record custodial interrogations. Part II of this comment argues: (1) that due process under the United States Constitution does not require the electronic recording of custodial interrogations, (2) that video footage fails to achieve maximum evidentiary objectivity, and (3) that courts should leave to law enforcement the freedom to determine investigative best practices. Part III explores the prudence of adopting a policy of video recordation despite a lack of constitutional compulsion.