March 25, 2007

Field Methods and the FBI

It doesn't require a linguist to know that many people, whether accidentally or deliberately, often mishear or misunderstand what is being said to them. One good way to resolve such matters is to get evidence that can be rechecked and documented as accurate. Linguists who carry out research on various languages, dialects, registers, styles and other projects often begin by doing fieldwork, using electronic recording equipment so that their claims can be checked by themselves for accuracy or by others who may want to replicate or dispute their results. The process is open and transparent.

Not so at the FBI, which seems to have no qualms about surreptitiously tape-recording conversations of suspects to use at trial against them but, at the same time, seems unwilling to record its own agents as they interrogate and elicit confessions of suspected criminals. The best and most accurate evidence for law enforcement and prosecutors, like the best and most accurate evidence used by linguistic fieldworkers, is the language that accurately memorializes this on tape. A 2004 study published by a former US Attorney, Thomas P. Sullivan, points out that the policy of tape-recording interrogations and confessions has been adopted by Great Britain, Australia, and 238 law enforcement agencies in 37 US states. Such electronic recording is mandated by law in Illinois and the District of Columbia and by case law opinions in Alaska and Minnesota.

But not by the FBI. Despite urging by some district court judges and US District Attorneys, there is no federal law requiring federal agents to electronically record custodial interviews and no federal agency, including the FBI, mandates it. In fact, as the recent discussion of the firing of eight US District Attorneys indicates (here), the FBI's policy is just the opposite (I'm grateful to Ryan Miller for sending me this link).

Some of the reasons for the FBI's vigorous opposition to tape-recording custodial interviews include the following:

1. Their interrogation techniques may be unsettling for some jurors.

2. Their failure to make such recordings never has been challenged successfully  only on rare  occasions.

3. Perfectly lawful interrogation techniques do  not always come across as proper to lay persons, such as jurors.

4. If recorded, the suspect may play  to the camera or withhold information.

5. It would be expensive and  time-consuming to set such procedures in place in the FBI's 56 field offices and 400 resident agencies.

6. The act of taping undermines the successful rapport-building interviewing technique practices of the agents.

7. Tapes would create unneccesary obstacles to the admissibility of lawfully obtained statements that, through inadvertance or circumstances beyond the control of agents, could not be recorded.

It is reasonably clear that the federal agencies do not want to permit their procedures to be scrutinized closely. Viewed from the perspective of linguistic fieldwork, this would  be like publishing a research paper that does not describe the actual research procedures that lead to the conclusions it reaches. Following such a practice, if the paper were published (and it's not very likely that it would be), its readers could not successfully challenge its findings. Like all sciences, linguistics frowns on such a practice.

As I noted in an earlier post (here), Senior Justice Department official, William Moschella testified that DA Paul Charlton of Arizona was fired because he tape recorded confession statements in violation of DOJ's policy. So it would be helpful to see how that policy reads (here):

Under current policy, agents may not electronically record confessions or interviews, openly or surreptitiously, unless authorized by the SAC or his or her designee. See MIOG, Part II, Section 10-10.10 (2).  Consultation with an attorney (AUSA, CDC, or OGC) may be appropriate in certain circumstances, but it is not required. In a March 17, 2006 memo from the FBI's Office of General Counsel to all Field Offices, Headquarters Divisions and Legats, this policy was reaffirmed.

So what did DA Charlton do that was so wrong here? It is now being revealed that earlier he had actually reequested permission to carry out a "pilot project" of recording interviews and confessions on Arizona's 21 Indian reservations, something that the FBI had never done before. Citing several jury acquittals of people he believed to be guilty, Charlton suggested that recordings would help convince juries that the suspects were not innocent. In contrast to the seven defensive reasons for not tape recording suspects, noted above, Charlton believed that such recordings would work positively for the prosecution. In a letter to the Acting Deputy Attorney General over a year ago, Charlon said (you can find this in the above link):

Because of the FBI's failure to tape confessions, jurors acquit or we must plead down cases that would otherwise be won, or result in more severe sentences, had the FBI recorded the confessions ... Police agencies in the State of Arizona, from the smallest town to the largest city tape confessions. Thus, a murder or rape committed in Phoenix, and investigated by the Phoenix Police Department will include a video taped confession where the defendant has made a statement. On the other hand, a case involving a confessed murderer or rapist on Navajo, the nation's largest reservation, will only have a summarized report written by an FBI agent. This juxtaposition of policies can lead to the conclusion that both Native American defendants and victims are denied a quality of justice that those off the reservation routinely receive.

Charlton's reason for wanting to electronically record custodial interviews and confessions on Indian reservations was to make his case against suspects even stronger, to say nothing about distributing justice equally.

There's a great deal of irony in all this.

Posted by Roger Shuy at March 25, 2007 03:35 PM