In Major Policy Shift, Federal Agents Will Now Have An Electronic Record Of Interrogations


Before the advent of DNA evidence, many believed confessions to a crime were as certain as evidence could be. If someone signs a statement saying they did the crime, what could be more damning?

We now know that is not true. One-quarter of all wrongful convictions overturned by DNA evidence involved a false confession by a defendant. And 17 percent of the known 2013 exonerations involved false confessions. In many cases, these false confessions derive from coercion that includes beating a defendant into submission, offering leverage in exchange, or simple lying by officers who sat in the confession room.

There has long been evidence that many of these mistakes could be avoided by simply recording what goes on during these interrogations. And on Thursday, U.S. Attorney General Eric Holder announced that federal authorities will finally start doing that.

The change that Holder called a “sweeping new policy” represents an about-face, after years of a Federal Bureau of Investigations ban on electronic recordings during most interrogations. One U.S. Attorney was fired in 2007 for opposing the FBI policy against recordings. For years, federal officials reasoned that recording the interrogations could expose jurors to controversial interrogation techniques by federal agents, and discourage suspects from talking, according to the New York Times. But recordings can also provide near-unimpeachable evidence against a defendant in many cases, in contrast to the officers’ sometimes strained recollections of interrogations.

The U.S. attorney who lost his job over the dispute, Paul K. Charlton, had argued that prosecutors were unnecessarily losing cases because of the policy. “The most difficult part of proving a crime is the state of mind, and that is almost always obtained through a statement of the suspect,” Charlton told the New York Times. He called the change “one of the most significant improvements in the criminal justice system in a long time.”

The change, which goes into effect July 11, will apply to the FBI, Drug Enforcement Administration, Bureau of Alcohol, Tobacco, Firearms and Explosive, and the U.S. Marshall Service. But it may have been spurred in part by new leadership at the FBI under James Comey. Former FBI Director Robert S. Mueller had opposed the policy.

In his weekly video address, Holder explained why video recording is better for both defendants and prosecutors:

Creating an electronic record will ensure that we have an objective account of key investigations and people that are held in federal custody. It will allow us to document that detained individuals are afforded their constitutionally protected rights. And it will also provide federal law enforcement officials with a backstop so that they have clear and indisputable records of important statements and confessions made by individuals who have been detained. Now, this policy will not in any way compromise our ability to hold accountable those who break the law, nor will it impair our national security efforts. On the contrary, it will reduce uncertainty in even the most sensitive cases, prevent unnecessary disputes and improve our ability to see that justice can be served.

The announcement is one in a series of criminal justice reforms and policy statements that Holder is now rolling out at a pace of one per week. Last week, he blasted the too-common policy of holding juveniles in solitary confinement. And the weeks before included announcements about tackling racial bias in law enforcement, expanding clemency for individuals serving draconian prison sentences, and improving treatment at halfway houses. All of these come after a major shift in which Holder professed that “too many people go to too many prisons for far too long for no good law enforcement reason” in the United States.

One defendant whose interrogation was not recorded was Chris Ochoa, who was exonerated for a Texas rape and murder after DNA evidence was tested, and the actual perpetrator came forward. Ochoa was an employee at Pizza Hut who was taken to the police station one day after being told officers had some questions about a burglary. “I was brought up, you know, to trust that police officers were there to protect me not to hurt me,” Ochoa said in an Innocence Project video. “So I answered the questions as much as I could, but I knew nothing about this murder, the rape. But they took it as a sign that I was covering up something, and they kept saying I had something to do with it. I was just lying. … This came with threats that if I didn’t confess — this was a capital murder — I was gonna die on death row.”

Ultimately, he explained, “after many hours of interrogation and threats I was just worn down and I told them what I wanted to hear.” He said he later pleaded guilty to avoid the death penalty after his mother was so worried that he would be executed that she had a stroke. “False confessions will continue to happen unless we get the videotaping,” Ochoa said.