How Any 2 FBI Agents Can Try To Make 'A Case' Against Just About Anyone

The purpose of interviews during criminal or civil investigations is to objectively determine everything the person interviewed knows - and doesn't know - about the matter and properly document it in the best possible way to avoid any later dispute about exactly what was said by the person interviewed and the person(s) conducting the interview.

The best way to do that is to conduct the inteview at the earliest possible time and record the interview in its entirety. The fairest way to do it is to use 2 or more recorders, keeping in mind that opposing counsel has the right to listen to the tape, have it examined for possible tape tampering and to a transcript in the event a duplicate original isn't made for that purpose during the interview. An added benefit to duplicate recordings arises when one of the tapes becomes damaged, as sometimes happens. Keep in mind that the investigator's job is to expertly gather evidence - and preserve it.

The FBI 302 Form Interview Procedure
Routinely, two agents conduct the interview, usually one asking the questions while the other takes notes on a pocket pad and sometime later dictates a summary of the interview which dictation is sometime later transcribed on a 302 form which is eventually returned to the agent for review and signature (or any corrections, additions or deletions he might consider appropriate).

Few if any of the FBI agents who interviewed the Flight 800 witnesses were qualified by experience or training for that role. The NTSB Witness Groups were created to expertly, properly and thoroughly conduct that kind of interview. The adverse consequences of the FBI elbowing the NTSB Witness Groups aside at the outset and unqualified FBI agents conducting those interviews with the 302 form procedure was inevitable.

http://www.ntsb.gov/events/TWA800/Transcript_8_23_3.htm
[excerpt][quote]
" . . . . . the FBI did not make any transcripts or recordings of these interviews. Documents are written in the words of the FBI agents who prepared them. Some of the documents contain incomplete information or are vaguely worded. In other words, the documents may not always say what the witness said."
[end quote]

http://www.law.emory.edu/4circuit/june96/945902.p.html
[excerpt][quote]
"Thus, when a government agent interviews a witness and takes contemporaneous notes of the witness' responses, the notes do not become the witness' statement- - despite the agent's best efforts to be accurate- - if the agent "does not read back, or the witness does not read, what the [agent] has written." Goldberg v. United States, 425 U.S. 94, 110- 11 n.19 (1976). And a government agent's interview notes that "merely select[ ] portions, albeit accurately, from a lengthy oral recital" do not satisfy the Jencks Act's requirement of a "substantially verbatim recital." Palermo, 360 U.S. at 352.
[end quote]

In short, the FBI 302 form interview summaries are not "witness reports" or "witness statements" or "witness declarations" and that interview procedure has been previously repeatedly publicly criticized for that reason. At best, the FBI interview summaries are the agents' understanding of what the witness said. But that procedure is routinely destined to result in uncertainty about what the person interviewed actually said - aside from being an invitation to skullduggery - and should have been abolished decades ago.

Trial lawyers dealing with cases involving FBI 302 form interview summaries instead of recorded interviews and the transcripts of those recorded interviews routinely raise hell about it for the obvious reason that they can neither hear for themselves everything both the witness and the interviewer actually said nor read everything both the witness and the interviewer actually said.

QUESTION: After the Nichols trial, there was some concern on the part of some of the jurors there about the fact -- and this comes up from time to time -- that the FBI does not transcribe interviews, it does this form 302. And every once in a while somebody says, you know, that it is not the best evidence, 302's are summaries of what something thinks somebody said. And people, every once in a while, look at whether the FBI should change that.

Is that anything that is being looked at? During the time you have been Attorney General, has anyone ever suggested that the FBI ought to change that practice?

ATTORNEY GENERAL RENO: I have heard it on occasions and have discussed it with Director Freeh. I cannot discuss it in the context of this particular case.

QUESTION: But as a general matter, is that something that is pretty much a dead letter now?

ATTORNEY GENERAL RENO: As always, we continue to review each issues, the circumstances of the issue in the context it arises, to see what is appropriate. But, again, with respect to this matter, in this case, I cannot discuss it.

QUESTION: Yes, but as a general matter, does it strike you as a good idea, the way the FBI does the 302's? Do you see any need to change that?

ATTORNEY GENERAL RENO: I think, each case, you have got to look at it on a case-by-case basis, and I think that is what the Bureau does.

ATTORNEY GENERAL RENO: Again, I think you have to look at the specific examples of each case and make the best judgment of what is right in that case.

QUESTION: (Off microphone) -- some have suggested the FBI should no longer use this form 302, and should go to a transcription of interviews. Would that be a good idea, in your view?

ATTORNEY GENERAL RENO: Again, you are going to have to look at the whole matter: each case, when you interview, who you interview, what the circumstances are.

QUESTION: But the FBI has a policy that applies to all cases all the time, that they do not tape record their interviews.

ATTORNEY GENERAL RENO: I will be happy to check with Director Freeh and clarify anything that I have said. But, again, I cannot comment on this particular case. And I think you have got to look at the larger picture.
[end quote]

Jnet Reno obviously chose to engage in wiggleworming when publicly confronted with the indefensible FBI 302 form interview procedure.

UPDATE: Los Angeles Times 7-31-2001
Hearings Open on Mueller
Senate: Bush's pick to head the FBI tells panel his "highest priority" is to restore public's trust in the battle-weary bureau.
[excerpt]
" . . . . . he said he would consider expanded tape-recording of FBI interviews to give its investigations greater credibility--another idea the bureau has resisted through the years."

The purpose of the 302 interviews is to TILT the playing field in the FBI's favor because recordings often include exculpatory information or information that defense lawyers could try to claim is exculpatory [pointing towards the defendant's innocence].

That might suit the "kill all the Arabs" skinheads - but it's a threat to ALL the innocent, BOTH foreign and domestic whether perceived as friend or foe.

At a time like this when just about ANYBODY can be accused of sedition and Judges and juries are far more likely than not to lean hard in favor of the government, it's in the interests of the Conspiracy Theorists, their kooks and nuts camp followers and the haters to tone down inflammatory rhetoric that COULD be construed as inciting suspicion, fear and hatred of the government, etc. unless, of course, they don't think they've pi$$ed off LOTS of government officials and LOTS of FBI agents?

Most suspects are interviewed before being taken into custody.

But the earliest possible THOROUGH interviews of everybody and the preservation of those interviews by proper documentation such as audio and/or video tape is vital. 302 form interviews are NOT documented interviews.

If the anthrax mail interviews were not recorded, they were neither complete nor documented and even FBI supervisors could NOT be certain about what was actually said. It's a lousy way to conduct interviews.

Incidentally, good micro-cassett recorders cost $35.-$50. and only one agent would be necessary [not 2 as in the 302 form interviews] for the vast majority of FBI recorded interviews so they could vastly increase the number of their available interviewers and save lots of money at the same time by simply using recorders. AND there would be no later dispute about what was said or not said by ALL present.

"If you are being 'interviewed' you ARE in custody, just on a somewhat longer leash."

The vast majority of those interviewed during criminal investigations are not suspects. For example, in the World Trade Center attacks and the anthrax mail investigation the residents of entire neighborhoods were reportedly interviewed by FBI agents. It's called canvassing for leads.

In major cases, whether criminal or civil, canvassing should be conducted by expert interviewers asking indepth questions and those interviewes should then be carefully reviewed by expert analysts because the entire process really boils down to looking for a needle in a haystack.

The focus was on specific neighborhoods or general areas because of leads and new leads are developed by that meticulous process which continues until the "needle" is found or the initial leads prove to be unproductive.

The importance of experts throughout the procedure in major cases AND properly documented interviews [recordings] has been dramatized in major cases such as those involving "serial killers" where the culprit was not caught until months or years later even though interviewed within the first few days or weeks during canvassing of a victim's neighborhood or during cavassing elsewhere arising out of a lead. In those cases it's obvious the initial interview was not expert and complete and/or not recorded [a form 302 type note taking interview] or, if recorded, reviewed by an inept supervising analyst.

Those killers were not in custody at the time of the initial interview. [But had any one of them balked at answering all of the questions asked during the initial interview, he would have immediately moved himself into the suspect category until proven otherwise.]

"In those cases it's obvious the initial interview was not expert ". . ."or, if recorded, reviewed by an inept supervising analyst."

Uhhhh... that is why they are paid by the government with OUR money to do that very job. If they are NOT experts, hand them a broom and a paycut or show them the door. I do not care to hear that a killer slipped through the Fumbling Bunch of Idiots net because of some lame-o excuse that the interviewer "was not expert enough"

"But had any one of them balked at answering all of the questions asked during the initial interview, he would have immediately moved himself into the suspect category until proven otherwise."

Guilty until they can prove themselves innocent, i.e., prove a negative? For exercising a CONSTITUTIONALLY RECOGNIZED RIGHT?

GAWD! The framers of the Constitution beat their collective brains out coming up with a set of acnowledged rights and the rules of law to protect those rights from people that use precisely the justifications you have just described!

Next will be the expounding of the virtues of "if you have nothing to hide LEA's can violate any portion of the Constitution" bs... oops! they are already doing that >>>

This is nothing more than a "snitch on thy neighbor" program which apparently the FEDS have sunk to as it is now "OKAY" if the "trained agents" are not "expert enough."

However, the apparent point to this post is to discuss the lack of quality from information gathering by the feds, as well as some sort of justification for their inexplicable resistance to producing recorded interviews of trial defendants. Well friends, that answer is not only easy, it should be obvious to anyone that logically analyses this question.

1. The feds do not have, in a majority of their cases, good enough evidence to actually obtain a conviction on the merits of the evidence alone, therefore they hide behind a form and claim "it's our policy."

Once again, the defendant is "guilty" until they can produce overwhelming evidence of innocence. Prove a negative.

2. The feds have something to hide that can be revealed by an actual unedited recording of the interview.

This can manifest itself in two ways. The feds violated the constitution during the course of the interview or they boldface lied during the interview. One can be determined with an accurate transcript. The other can be proven with VSA analysis which can be easily performed on a recorded interview.

Either way, it's despicable and feds using such techniques to "obtain" convictions should be imprisoned along with their former interviewees. We would see some policy reviews almost instantaneously

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