US Department Of Justice Announces New Policy To Record Statements

Keywords: DOJ, new policy, electronic recording, statements, judicial officer

The US Department of Justice ("DOJ") has announced a new policy with respect to the electronic recording of statements made by individuals in custodial situations prior to a person's initial appearance before a judicial officer. Beginning July 11, 2014, there will be a "presumption" that all such statements should be videotaped, or audiotaped if video is not available, so long as the facility where the individual is held has suitable recording equipment. Agents and prosecutors will also be encouraged to consider electronic recording in other circumstances, even when the new presumption does not apply. This announcement, issued May 22, 2014, reflects a significant policy shift for the DOJ.

The presumption applies to interviews of persons in the custody of the Federal Bureau of Investigation ("FBI"), the Drug Enforcement Agency ("DEA"), the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") and the United States Marshals Service ("USMS") in connection with any federal crime. Individuals in non-custodial situations are excluded from the presumption, though agents and prosecutors are encouraged to consider recording such statements. Additionally, the presumption applies only when an individual is in a "place of detention." According to the policy, this detention includes "not only federal facilities, but also any state, local, or tribal law enforcement facility, office, correctional or detention facility, jail, police or sheriff's station, holding cell, or other structure used for such purpose."

The presumption does not apply when a person is waiting for transportation to, or is en route to, a "place of detention." Electronic recording "will begin as soon as the subject enters the interview area or room and will continue until the interview is completed." Recordings under the policy may be made covertly or overtly.

There are four exceptions to the new presumption. First, if the interviewee indicates that he or she is willing to give a statement, but only if it is not electronically recorded, then the recording need not take place. Second, there is an exception for public safety and national security. Under this exception, "[t]here is no presumption of electronic recording where questioning is done for the purpose of gathering public safety information under New York v. Quarles, [467 U.S. 649 (1984]." Under Quarles, the ordinary Miranda rules can be avoided...