Though FBI reports are often admitted as evidence, they are sometimes so unreliable that even a federal judge once refused to be interviewed unless he could review the report first. Photo credits: WGBH News (screen capture) / YouTube, US Marshals Service / Wikimedia

Matt Connolly is a former Deputy District Attorney of Norfolk County, Massachusetts

How credible are the reports of interviews filed by FBI agents working a case? In fact, such reports are known to be so unreliable that in one case, a federal judge refused to be interviewed by agents unless he was allowed to review their report and make corrections.

That case was more than a decade ago, but the problems raised by these FBI reports—which are often offered in evidence during criminal trials—are very much current. Indeed, the judge in the recent trial of Boston Marathon bomber Dzhokhar Tsarnaev specifically warned the jurors against giving too much credence to such a report.

***

The case of the judge who insisted on fact-checking the FBI’s work is particularly instructive. This occurred during the much-watched 2002 trial of retired FBI agent John Connolly, the handler of the notorious gangster Whitey Bulger.

Connolly was charged with, among other things, obstruction of justice involving a letter Connolly sent to the presiding federal judge, Mark Wolf. Wolf’s testimony was needed to prove the obstruction.

As is standard practice, prosecutors asked that Wolf submit to an FBI interview in advance of any courtroom testimony. The  interview reports, commonly called 302 reports, are named after the form on which they are written.

The FBI’s process for handling 302s is hardly an ideal one for accurate recording and transmittal of what was said during an interview.

The process is thus: two FBI agents ask questions and listen to the answers—without tape recording or obtaining a certified transcript. Instead, they return to their office and, based on their recollection and any notes they may have taken during the interview, write up a summary of what transpired. Summaries are, in most cases, written hours later, sometimes even the following day.

***

This reporter sat in court listening to Judge Wolf’s testimony—which is included in my book, Don’t Embarrass The Family, based on FBI agent Connolly’s trial. Under questioning, Judge Wolf revealed that he had agreed to be interviewed, but only on the condition that he would be able to review the 302 for accuracy and to make any necessary corrections. It was clear he had little confidence the FBI agents would accurately reproduce what he said. In plain English, he did not trust them. Judge Wolf had seen his share of FBI interview reports, as he had been a federal judge since 1985 and prior to that had served as an assistant US attorney for eight years.

Judge Wolf’s concern about FBI agents’ ability to accurately render interview content is made even more clear in a footnote in his 661page decision filed on September 15, 1999 in the matter of US v. Salemme, where it was disclosed Whitey Bulger was an informant.

In footnote 35, Wolf quotes Edwin O. Guthman, who once served as press secretary to Attorney General Robert Kennedy: “You can have a conversation with an agent… and when it is over he will send a memo to the files. Any relation between the memo and what was said in the conversation may be purely coincidental. You would think you were at different meetings.”

Wolf says that after reviewing the 302s, he made only minor changes or corrections. Thus, in this case, at least, no substantive errors had been introduced. But then other interviewees, such defendants and key witnesses, have no right to review and correct 302s. And a presiding judge is hardly the most likely victim of misstatements by FBI agents. Based on a variety of published claims, such misstatements, tendentious or otherwise,may be distressingly common.

FBI witness reports are often written the day after the interview was given. Photo credits: Justin Evans / Wikimedia, FBI / Wikimedia

FBI witness reports are often written the day after the interview was given. Photo credits: Justin Evans / Wikimedia, FBI / Wikimedia

In Wolf’s case, his concern seems to have been anchored principally in the recognition that it is extremely difficult for people to remember what was said during an interview while making only an occasional note. Of course, the greater the delay between the end of the interview and the writing of the 302 report, the greater the possibility of errors.

Judge Wolf, based on his experience, would also have known that the 302 becomes the official record of what was said during the interview. Its importance can not be overstated. FBI agents review their 302s prior to testifying at trial; the federal prosecutors will rely upon it in examining (or cross-examining) a witness. Perhaps most importantly, defendants or witnesses who contest what’s written in a 302 open themselves up to charges of “making false statements or even perjury.”

That this is an ongoing problem is demonstrated by the recent trial in Boston of the Marathon Bomber  Dzhokhar Tsarnaev. Judge George O’Toole, having given permission to Tsarnaev’s attorneys to read FBI 302s to the jurors, felt compelled to warn them that the 302s were not “verbatim transcriptions of the conversation, but summaries, and they may be made from the agent’s notes and then put together in a report either that day or perhaps the next day.”

Despite the obvious flaws in the FBI’s system of interviewing and then later dictating the gist of  interviews, the Bureau harbors a gospel-like belief in the 302s. An FBI agent testifying at Connolly’s trial revealed there is a common expression amongst agents: “If it isn’t in writing it doesn’t exist.

Of course, this implies that the 302 accurately contains all the important statements the witness made. But the potential for selectivity here is obvious. If the witness said he did not get a good look at an assailant, and the FBI agent does not include that in the 302, then no one on the prosecution team will believe he said it because it is not written down.

With that in mind, the FBI agents’ aphorism reads like a cynical inside joke.

Solution is Obvious—But Why Does FBI Resist?

It would be easy to remedy this ancient system of conducting interviews that has existed since J. Edgar Hoover became FBI director in 1924. Why not establish a rule that all interviews be electronically recorded? In this high-tech age it’s hard to conceive of valid arguments against mandatory electronic recording, except in instances where circumstances make it impracticable. Other than such exceptions, the most trustworthy evidence—the person’s voice—would be preserved.

Ironically, the federal government itself does not seem to fully trust the memories of FBI agents. In 1968, Congress passed Title III of the Omnibus Crime Control and Safe Streets Act which gave federal law enforcement authorities and the states the ability to conduct secret interceptions through electronic means between parties who were unaware they were being listened to. However, it required that all those intercepted communications be electronically recorded. Congress did not want FBI agents to listen to the conversations and later write down what they thought they heard. Instead, they reasoned, it’s better for judges and juries to hear for themselves what is said.

Former Attorney General Eric Holder, tacitly acknowledged to the need for a recording policy when on May 12, 2014 he authorized his Deputy James M. Cole to issue a memorandum allegedly changing the policy concerning electronic recording of statements. This reporter noted at times it had so many holes in it that it made little difference to the way things were done. Noted First Amendment expert and author Attorney Harvey Silverglate followed up nine days later with a similar opinion noting: ”a careful read of the missive… proves that the exception often overwhelms the rule.”

The FBI did recognize the pressure to change it in 2006. Its reasons are specious, boiling down to it likes the way things are now done so why change? It also states there are no federal laws requiring it to record the conversations which allows it to refuse to do it.

The issue is straight forward: do we want the best evidence—a record of the words spoken between an FBI agent and another person—or would we rather continue with the evidence the FBI agent looking to solve a case figured she heard and decides to write down. It is time that Congress acts to require federal agents to do the same thing when they interview witnesses and suspects as they do when listening to intercepted communications… which is to record them.

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HappyPlace
HappyPlace
4 years ago

A bully government is almost as bad as a crony government.

JayGoldenBeach
JayGoldenBeach
6 years ago

“… liberty and justice for all” is just a cynical sound bite.

Wonder how many people over the years have been prosecuted and convicted for “lying to a fed agent” when the agents could not otherwise make a solid case? For example, when ballistics evidence is found to be junk science or the FBI crime lab provides test results for a conviction regardless of accuracy. Easy to just hit the targeted person with “lying to a fed agent” charge. The agent gets an arrest and the prosecutor gets an easy conviction.

Since the U.S. has the biggest, most sophisticated electronic surveillance agencies in the world, there is no acceptable reason for FBI to continue to avoid the video/audio recording of interviews/interrogations.

J. Edna Hoover would be proud.

ed2276
ed2276
6 years ago

There is a better solution to ensure the FBI can’t railroad you, other than updating the FBI interview methods: Don’t talk to the FBI…EVER.

tom
tom
6 years ago

This is a very good example of the many ways in which the USA is institutionally corrupt. No one usually notices, because the corruption is legally permitted. How can anyone trust a judicial system in which agents of the prosecution can, essentially, make up their own evidence and put it into the mouth of the accused? Such proceedings would shame the Spanish Inquisition or the Court of Star Chamber. Yet it’s all perfectly fine as long as only “they” suffer from it. “First they came for the commies…”

JayGoldenBeach
JayGoldenBeach
6 years ago
Reply to  tom

“… liberty and justice for all” is just a cynical sound bite.

tom
tom
6 years ago
Reply to  JayGoldenBeach

Yes – after all, Lincoln was a successful lawyer. “Liberty for all”? Well, what exactly is “liberty”? The American citizen of today is far less free than the colonists were under George III. Nobody is perfectly free: government itself is a huge infringement of liberty. And “justice for all”? No way, only if you’re rich. And then you get *more* than justice – you get your own way.

tom
tom
6 years ago
Reply to  JayGoldenBeach

‘Americans celebrate Abraham Lincoln’s Gettysburg Address, but
H.L. Mencken correctly evaluated the speech, “It is poetry not
logic; beauty, not sense.” Lincoln said that the soldiers sacrificed
their lives “to the cause of self-determination – government
of the people, by the people, for the people should not perish from
the earth.” Mencken says, “It is difficult to imagine anything more
untrue. The Union soldiers in the battle actually fought against
self-determination; it was the Confederates who fought for the right
of people to govern themselves.”‘ http://econfaculty.gmu.edu/wew/articles/02/lincoln.html

payedfor nomad
payedfor nomad
6 years ago
Reply to  tom

Its all about the money. The prison industrie our justice system is a scam like everything else it is at the end it no longer works Just look at how much they make on inmate phone calls alone.not to mention extorted money for fines and restitution that never gets to the victims. Its all bullshit. Once your in you are never out . They need the head count.

mikefromwichita
mikefromwichita
6 years ago

I wonder how they would respond to the object of their interrogation doing his own recording.

punkyboy
punkyboy
6 years ago

LMAO!!!

JayGoldenBeach
JayGoldenBeach
6 years ago

An informant being used to coerce a target did make his own audio recordings during one of those dishonourable, scripted “terrorist” stings. IIRC, the recording didn’t help the mentally ill target who was still convicted and sentenced to decades in prison.

Disapointed William
6 years ago

FBI = Frequently Bad Intelligence. What a joke, but a very dangerous joke when you are the defendant.

WeAllKno TedNugent
WeAllKno TedNugent
6 years ago

The F.B.I. doesn’t want it because then everyone would see how many times they threaten or pressure the witness until they get the answer they want. It’s really that simple.

Midwesterner
Midwesterner
6 years ago

That is why you never agree to be interviewed by the FBI unless you make a video tape of the conversation. As soon as you insist on that, they are no longer interested in the interview. 302’s are used to wrongfully convict people all of the time.

ed2276
ed2276
6 years ago
Reply to  Midwesterner

The issue isn’t even whether you record the interview. There are always things which you might say that are seemingly innocent to you, but which law enforcement may use to turn against you.

The best way to ensure that the FBI, or any other law enforcement agency, can’t get things wrong, or use your words against you is very simple: Don’t talk to them. You have a right to remain silent…use it!

Midwesterner
Midwesterner
6 years ago
Reply to  ed2276

Can’t argue with that sound advice. But, if you arrange to have the interview done at your attorney and make it clear you are video taping, then they will refuse the interview, makes you look cooperative :)

jane24
jane24
6 years ago
Reply to  Midwesterner

This is so.They don’t want to record what you have to say because this would get in the way of their “editing.” and they sure as hell don’t want an accurate record of what they said to you. (For similar reasons?)

http://masscopblock.org/harvey-silverglate-protecting-yourself-from-fbi-manipulation/

Steve Sperdacion
Steve Sperdacion
6 years ago

In whitey bulger case it’s obvious FBI was helping organized crime. why? just to have something to do, create the bad guy then get paid to “catch him”. This is done all the time.

Tec Sg Beatty
Tec Sg Beatty
6 years ago

Same reason for the “War on Drugs”. Gotta keep those checks coming in!

JayGoldenBeach
JayGoldenBeach
6 years ago

Let’s be honest: Crime is profitable. The established criminal does all the work, takes the risk and the agent could simply collect a ‘commission fee’ each week. Reverse shakedown.

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