The FBI’s Fear of the Truth: A Blemish on Our Justice System

I’m studying J. Edgar Hoover’s early years in order to understand why it was he created the monstrosity called the Top Echelon Informant program. If you ever want to understand what made him tick just think of the number 1919. It explains much.

One of my big beefs with the FBI is that it refuses to be an honest group of agents. An honest person to my way of thinking would do his utmost to present the best and most accurate evidence he could. The FBI thinks it should do otherwise.

I ask you this simple question: what is the best evidence of what was said in a conversation between two or more people? Would it be the recollection of one of the persons who participated in it; or, would it be a recording of the conversation? The FBI apparently believes it is an agent’s recollection because it refuses to record conversations.

When it was asked why it still insists on following Hoover’s practice, after all he has been dead for 43 years, it came up with this answer.

1. The presence of recording equipment could undermine succesful rapport-building techniques of the FBI. Response: In any such case a hidden recorder could be used.

2. FBI has successfully testified for generations about statements made by custodial defendants.  Response:  That does not mean the agent is properly testifying as to what the person said; it just means the fact finder has decided to believe the agent with his 302 report over a defendant or another witness. The use of recordings would ensure the accuracy of the testimony.

3.  “Perfectly lawful and acceptable interviewing techniques do not always come across in recorded fashion to lay persons as a proper method of obtaining information from defendants.” Response:  If that is the case then that is more of a reason to let the “lay persons”, who are usually the fact finders, decide if these techniques were lawful and acceptable to them.

4.  The FBI has 56 offices and over 400 resident agencies. This would require massive logistical and transcription support but would also prevent lawfully obtained statements from coming into evidence where circumstances beyond the control of the agent prevented the recording. Response: Obviously any rule requiring all statements be recorded would allow “special circumstances” to be considered when a recording could not be made. Further, right now all statements are recorded so the increased work of transcribing where such would be necessary would be minimal especially considering you would have the most accurate record of the conversation.

The FBI procedure now is that one or two agents will interview a person and will not record the interview. After the interview they will return to their office and write down or dictate what they remember or think the person said which may or may not be accurate onto an FBI Form 302.

Notice in its reason why it will not record statements it talks about a “custodial defendant” or a “defendant.” But most of its interviews are done with people who are not defendants but are witnesses to some activity involving a defendant. Why do they not record these statements? None of the reasons given apply to them.

For years the FBI has presented this lesser evidence. The judges have allowed it to continue knowing the testimony of an agent from a 302 may not be entirely accurate or truthful. Congress has not had the courage to make sure the federal justice system presents the best evidence. Attorney General Holder tried to make some change in the procedure but left so many holes in his ruling that it could simply be ignored.

It is time we stop relying on what an FBI agent thinks he remembers what a person said and start listening to what the person said. Until it is mandatory that recordings be made (with certain exigent circumstances allowing them not to be) of all statements given to FBI agents the federal courts will be convicting people on evidence which is far from the best; and, that’s not what is best for America.