Harvey Silverglate has an interesting OpEd in the Boston Globe about how the FBI goes about conducting interrogations. Basically, it has a policy against electronically recording teh questioning of suspects. Instead, it relies on one FBI agent to taking notes while another asks the questions.
Of course, if the FBI were an unscrupulous law enforcement agency, this could be seen as a convenient arrangement by which the FBI can fabricate select details if not an entire interview. Then, to top it off, if the recorded version of the interrogation is contradicted by the facts, the subject of the interrogation can be charged with making false statements punishable by up to eight years in prison.
In 2006 the FBI defended its no-electronic-recording policy in an internal memorandum, which The New York Times later made public. The memo in part attempts to defend the policy as logistically necessary, but given that virtually every cellphone today has sound recording capabilities, any “inconvenience” or “non-availability” excuse for not recording seems laughably weak. The more honest — and more terrifying — justification for non-recording given in the memo reads as follows: “. . . perfectly lawful and acceptable interviewing techniques do not always come across in recorded fashion to lay persons as proper means of obtaining information from defendants. Initial resistance may be interpreted as involuntariness and misleading a defendant as to the quality of the evidence against him may appear to be unfair deceit.” Translated from bureaucratese: When viewed in the light of day, recorded witness statements could appear to a reasonable jury of laypersons to have been coercively or misleadingly obtained.
In short, a jury might not come to the government-preferred conclusions if they are presented with an actual recording of the interrogation instead of the government interpretation. As in all cases of police conduct, a recording vastly curtails their ability to take liberties in describing what happened or what was said at trial time. This is just one more means by which the government stacks the cards in its favor when it comes to criminal prosecution.
Recording has now become so easy and cheap, that law enforcement should be required to record, not just interrogations, but every encounter with any citizen during the course of an investigation. If they can gather trillions of electronic communications (not to mention surveillance video), then surely it is within their technical reach to record exchanges with people they are investigating when such exchanges could be used to destroy someone’s life.