In the pursuit of criminals, FBI agents across the nation routinely use DNA tests, fingerprints, ballistics, psychological profiling and the world's most advanced forensic methods. But a little-known policy at the Federal Bureau of Investigation keeps investigators from using one of the simplest and most effective tools in law enforcement: the tape recorder.When agents testify months or years down the road, they rely on [a typed summary known as Form 302], and memory. As a result, jurors and judges hear recollections and interpretations, not what was actually said. And the defense lawyer often follows up with a cross-examination designed to impugn the agent's memory, competence or integrity. Critics say the FBI practice leads to botched investigations, lost evidence, unprofessional conduct and damaged credibility for America's justice system.
The policy emerged as a problem for defendants, judges and juries during federal trials of Osama bin Laden, Oklahoma City bombing defendant Terry Nichols, TV star Martha Stewart and lesser-known figures.
Responding to questions about the policy, William David Carter, an FBI spokesman in Washington, D.C., wrote in an e-mail that taping is strictly limited because it "can inhibit full and frank discussion or can end an interview entirely." Yet most other U.S. enforcement agencies leave taping to the discretion of investigators - some even encourage officers to record interrogations - without any problem.
Carter refused to provide a copy of the entire policy, claiming it is an "internal FBI document." He said he did not know when the rule was instituted or by whom. He did not respond to other detailed questions on the policy. Carter did say that recording interviews may be a "sound enforcement policy" if the subject is comfortable with a tape machine. However, he added, "The FBI believes that it would unduly burden ongoing criminal investigations and impede immediate law-enforcement responses to fast-breaking criminal events to require that all witness statements be recorded."
Some defenders of the FBI policy suggest that taping and transcribing interviews would become a logistical nightmare and a waste of money for an organization with 11,000 agents.
Early this year, a federal jury in Philadelphia acquitted a banker accused of lying to agents because the only evidence was the agent's scribbled notes and testimony. "We wouldn't have been here if they had a tape recorder," one juror told the Associated Press.
A 1998 study for the International Association of Chiefs of Police reported "little conclusive evidence" that videotaping affected suspects' willingness to talk. Instead, researchers found, "the majority of agencies that videotape found that they were able to get more incriminating information from suspects on tape than they were in traditional interrogations."