Saturday, October 13, 2007

NCIS reportedly considering policy requiring taping of interrogations

NIMJ has posted an important news article about NCIS's consideration of a policy to require the taping of interrogations. Here is a link.

Interestingly, an NCIS spokesperson says, "Our current policy is the same as other federal law enforcement agencies -- recording of interviews is neither required nor prohibited." If it is true that NCIS has no policy against recording interrogations, that is in itself a step in the right direction. In 1996, the NCIS Special Agent who interrogated a suspect in a homicide case understood that his agency prohibited recording interrogations. In the case of United States v. Quintanilla, Special Agent Bolden testified that he had not taped his interrogation of Sergeant Quintanilla, but NCIS had videotaped a walk-through of the crime scene. Record at 187-88. The defense counsel then asked, "So although NCIS can go through and videotape the crime scene, it couldn’t videotape the interrogation?" Id. SA Bolden replied:
That's a totally different situation, sir. I don't know the rules and regulations on it. I would have to check with Headquarters to be sure. We have – over my 17 years of law enforcement I have never been given permission to do that by our legal people at Headquarters nor have we conducted any type of interviews on videotape, with the exception of child abuse cases, sir.


Several states and localities have adopted the eminently reasonable requirement that stationhouse interrogations in serious felony cases be recorded. Illinois, for example, has a statute that treats stationhouse confessions as presumptively inadmissible for certain offenses unless they were recorded. 725 ILCS 5/103-2.1. The sponsor of Senate Bill 15 that led to this statute? State Senator Obama.

Can anyone fill us in on OSI, CID, and CGIS policy on recording interrogations?


John O'Connor said...

I know from another confession case that the NCIS policy at the time of Quintanilla (at least at Camp Pendleton) was not to record interviews. I had an NCIS agent on the stand and he testified that they didn't record the interview where the accused confessed because it was against office policy, but that he personally would be happy to record them if allowed.

If NCIS adopts a recording policy, I hope that they are at least nuanced enough to recognize that all interviews can't be taped, such as interviews on the scene. A rule that presumptively requires recording interviews taken at the office would seem feasible.

Anonymous said...

In my experience, the leading advocates for taping interviews, besides defense lawyers, are prosecutors. I recently secured an acquittal on a case with a confession, because the CID agent couldn't remember salient parts of the interview, and her notes were completely contradictory. The panel pretty much disregarded the statement.

Anonymous said...

The circumstances in Quintanilla were played out nearly identically in the recent Air Force capital murder case at Bolling AFB where NCIS (who conducted teh investigation) were again unable to explain why they failed to interview the interrogation of a murder suspect yet able to video a walk through of the crime scene. Perhaps it was because it also came out that the NCIS agent had hit the subject in the back of the neck in an attempt to "take a more aggressive stance" and "show him where the injury on the victim had occurred." Hmmm. The assault (as later determined by the judge during motion for sentence relief on other charge) would have likely never occurred if the interrogation were interviewed and second, a much clearer understanding of that interrogation would exist than was presented by the NCIS agent who had a mess of scatter brained notes.

Anonymous said...

Yep, obviously meant videotaped - not "interviewed" in last post! Oops.

Phil Cave said...

There is significant research documenting MANY police departments in the US as well as internationally using tape interviews.
The research puts the lie into one of the biggest NCIS (OSI, CID) reasons for not taping -- that it causes suspects to clam-up HA HA HA. If they waive their rights, why do you think a tape will cause them to clam up any more.
What the tapes show is the interrogation techniques!
DHS, will email you primary research.

Phil Cave said...

Here is the best -- The Sullivan Report from 2004.

John O'Connor said...

I have no doubt that videoing can cause someone to be less forthcoming. Common experience tells me that is so. Whether there are other reasons why law enforcement might not want to video is a separate question, but I do think it is true that some people will talk when they think it's really just between them and the interviewer and won't talk when they are on tape.

Dwight Sullivan said...

Of course, law enforcement agents need not tell the suspect he or she is being taped. There would be absolutely nothing wrong with taping the interview in a manner not visible to the suspect. Indeed, self-incrim case law even teaches us that if law enforcement agents secretly tape an interrogation and lie to the suspect and say it isn't being taped, that will not render any resulting confessions involuntary.

Phil Cave said...

I think the research shows that taping does not restrict, but enhances interrogations.

And as CAAFLog points out, there is not requirement to tell the person they are being taped.

John O'Connor said...

Oh, I never commented on whether taping, as an overall matter, enhances or restricts the quality of interrogations. Obviously, it enhances them to the extent that it's useful when there's a doubt about what was said or done. I do have my doubts about the extent to which a definitive answer can be made in a study about whether taping "enhances" or "restricts" interviews.

In any event, all I said is that common experience tells me that there will be people who would comment in a face-to-face intwerview but not if they know they're being taped. I think that's true. Heck, I can say that I personally would tend to take knowledge that my conversation was being taped as increasing the likelihood that the other person is going to try to use it against me.

I do agree all around that a preferable system of taping interviews is one that doesn't tell the subject that the interview is being taped.

Anonymous said...

Becareful what you wish for...

Anonymous said...

These discussions about taping/not taping always seem two dimensional:
(1) The defense bar reads something nefarious into the current practice of not recording interviews, and it may be unjustified. CID/NCIS/AFOSI use the typed, EX-SUM, “sign here” variety of confessions because they can be expediently reviewed by their supervisors (and, for that matter, trial counsel and defense counsel). Let’s not forget that the vast majority of criminal investigations result in NJP or guilty pleas. Imagine if you are the Special Agent in Charge at Fort Bragg, Quantico, Edwards AF Base, etc. and had to listen to every 4-6 hour interview that your agents produce hundreds of times over in any given year. It would be impossible. Face it – 90% of military justice is the practice of “making sausage” – churning out the Article 15s and the guilty pleas. (And while I agree we have too many guilty pleas in the military justice system, that is an entirely different subject.) Those nice, typed confessions written by the agent and signed by the accused make that process flow quicker and easier.

(2) If you are a defense counsel, don’t be so sure that a recorded interrogation will help your client. I once tried a case, as a defense counsel, where CID conducted a joint investigation with local civilian law enforcement. The civilian law enforcement agency required that all interrogations be recorded. So when CID interrogated my client, the whole thing was on tape. We – the defense – played the whole interrogation for the panel in an effort to show that our client was “strong armed” and “bamboozled” into confessing. Guess what? It wasn’t all that helpful. First of all, my client, like most accused, spent half the interview clumsily denying everything, which just enhanced his appearance of culpability. Second, while CID did use some cutesy and highly deceptive tactics during the interrogation, it wasn’t anything too over the top, and wasn’t enough to make the panel think the confessions was the pure result of trickery or coercion. Third, when they finally got him to come clean, and my client hung his head and said “yeah, I did do it,” it was very compelling evidence of guilt.

(3) The lack of a recorded confessions and insinuations of police misconduct is the bread and butter of most defense cases. It allows the defense to inject reasonable doubt into any case where it might not otherwise be. That is what apparently happened with Bill Cassara’s case as discussed above. If all confessions were taped, defense counsel would have far less to work with. So like another poster said, be careful what you wish for, you may get it. You may very well get those taped confessions and find you have far less "reasonable doubt" to work with

Anonymous said...

As far as I've been able to determine, NCIS has never actually had a formal policy against recording, despite the testimony of field agents to the contrary. In fact, I understand the interview rooms at Naval Base San Diego have just been equipped to allow for audio/video recording, but recording is reserved only for "important" cases.


Dwight Sullivan said...

Sierra Delta -- I personally don't know whether NCIS actually has such a written policy because NCIS treats its Manual as if it contains the launch codes for a nuclear weapon and military judges -- erroneously in my view -- have denied defense requests to see the Manual in every case in which I am aware of in which the issue was litigated.

There is at least one case in which an appellate court authorized its own review of the NCIS Manual. United States v. James, No. 9802036 (N-M. Ct. Crim. App. Feb. 9 2001). In James, a counterfeiting case, the defense challenged the military judge's denial of a discovery request seeking an unredacted copy of the NCIS manual dealing with photographic lineups. Id. at 4. The defense maintained that a photographic lineup at issue in the case was suggestive. Id. The military judge ruled that "[whethere] NCIS followed its own internal directives would most likely not be dispositive in determining whether the lineup was per se suggestive." Id. Rather, the lineup's suggestiveness "would be a question of fact to be determined for a trier of fact, primarily upon the basis of the photographic montage itself." Id.

Noting that the military judge did not review an unredacted copy of the NCIS manual, NMCCA held that while "the agency possesses a general privilege to maintain confidentiality, that privilege cannot be absolute." Id. This Court therefore ordered and reviewed an unredacted copy of the relevant manual. Id. (citing United States v. Huberty, 53 M.J. 369, 371 (2000)). Following that review, NMCCA found that had the item been given to the defense, it "would not have had any measurable impact on the issue of suggestibility of the montage or the reliability of [the] identification of the appellant." James, slip. op. at 4.

Has anyone actually seen the NCIS Manual to know whether it does, did, or did but no longer say "Don't record interrogations?"

Dwight Sullivan said...

To those who say we should be careful what we ask for because we just might get it, my response is that I don't think interrogations should be recorded because the recording will help the defense. Nor do I think interrogations should be recorded because they will help the prosecution. I think they should be recorded because doing so would promote accuracy -- and that is a good thing for a judicial system.

Sometimes promoting accuracy is good for the defense. Sometimes promoting accuracy is good for the prosecution. But it will almost invariably be good for the system.

Let me mention one aspect of the Quintanilla case where I think a recording of the interrogation would have helped the defense by promoting accuracy. Special Agent Bolden testified that Quintanilla explained his offenses by saying, "I did what I had to do." That statement wasn't in Quintanilla's typed confession (or, more accurately, the confession that Bolden typed). Nor was that statement in Bolden's notes of the interrogation. Nor was that statement in the notes of any other NCIS agent. Nevertheless, the trial counsel in this capital murder case (who was later disciplined for receiving, keeping, and displaying as a trophy the murder weapon that had been stolen from the NCIS evidence locker and for lying to NCIS agents during their initial investigation of the theft) used that purported statement to devastating effect during both his closing argument and his rebuttal argument. During his sentencing argument -- after which the members sentenced the accused to death -- the assistant trial counsel also used that purported statement to devastating effect. That assistant trial counsel, by the way, personally stole items of evidence (including the murder weapon) from the NCIS evidence locker, converted them to his personal use, and lied about his actions during NCIS's initial investigation.

Now I have no way of knowing for sure, but I don't think Quintanilla ever actually said, "I did what I had to do." I think if he had actually said that, it would have wound up in the agents' notes, in his typed confession, or both. I also have other reasons for distrusting Bolden's testimony.

But I shouldn't have to guess. In a case where a Marine sergeant shoots and kills his XO and shoots and wounds his CO, there shouldn't be any doubt about what he said while being interrogated at the NCIS office because NCIS should use its arsenal of videorecording devices to tape the interrogation. The ultimate beneficiary of such a practice would be the twin goals of truth and justice.

In the systems requiring taping with which I'm familiar, the practice is mandated only for felonies or, in the case of Illinois, particular serious felonies. Serious felonies are, thankfully, sufficiently rare in the military that a recording requirement wouldn't be overly burdensome. But even to the extent it is burdensome, when placing truth and accuracy on one side of the scale of justice and inconvenience to NCIS on the other, I think the scale will dip decidedly toward the former.

Sun Oct 14, 09:51:00 AM EDT

Dwight Sullivan said...

BTW, in keeping with the No Man's disclosure policy, I should note that I was an appellate defense counsel in the Quintanilla case.

Marcus Fulton said...

My recollection is that current NCIS policy discourages recordings, which might explain the cagey "neither required nor prohibited." statement.

I concur with the thought that the overall result will be an improved system. I bet another result is more guilty pleas. Some accused service members tend to discount the significance of their NCIS-prepared confession. A recorded, obviously voluntary confession might be a good tool for recalibrating a reality-challenged client. And transparency and the preservation of evidence best serve justice.

Christopher Mathews said...

AFOSI policy was, as of the last time I prosecuted a case for the Air Force, not to tape interviews. I doubt it's changed.

I'm with CAAFlog on this: taping, if performed competently, provides additional data to the decision-maker which in turn should enhance the quality of the decision. Military law has long implicitly recognized the value of seeing someone tell their tale: appellate courts, when reviewing the factual sufficiency of a case, are cautioned to "mak[e] allowances for not having personally observed the witnesses." United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987).