Co-authored by Thomas P. Sullivan
The FBI used to be the standard bearer when it came to interrogating criminal suspects. For example, before the Supreme Court's Miranda decision, FBI agents were routinely advising suspects of their rights to remain silent and to an attorney.
But today, the FBI and most other federal investigatory agencies are out of tune with the current best practice for interrogating suspects who are under arrest and in custody: recording interrogations electronically, preferably on video, to capture exactly what was said and done during closed-door interviews. Seventeen states and the District of Columbia now require recording by legislation or supreme court rules, and hundreds of other state law enforcement agencies in every state voluntarily record. But the FBI and the majority of other federal agencies continue to oppose this common-sense reform. Instead of recording interrogations, they provide brief written summaries of the interviews.
The recent case of Travis Dubois, Sr. -- involving FBI agents -- illustrates the need for change. DuBois was in deep trouble. His two children were found murdered in his home on the Spirit Lake Reservation in North Dakota. Because he was drunk and in the home when his wife found their bodies, he became a prime suspect in their murders. After FBI agents questioned him for many hours, he confessed to stabbing the children to death, whereupon he was charged with their murders, and faced a life sentence if convicted.
Fortunately, three things intervened to avoid a terrible injustice to an innocent man. First, DNA testing of fingernail scrapings taken from his daughter excluded DuBois and instead matched Valentin "Tino" Bagola, a cousin and occasional baby-sitter for the children. Second, when FBI agents interrogated Bagola, he, too, confessed to the murders, but he provided previously unknown details about how he alone had committed the crime. Third, and perhaps most important, the agents videotaped the entire interrogations of both Bagola and DuBois.
After studying the recordings of the conflicting confessions, the agents realized they had inadvertently fed facts of the crime to DuBois in an attempt to help him remember what had happened to the children. After hours of denials, the distraught father became convinced that he must have committed the crime but failed to remember it due to his alcohol use, and finally agreed to the agents' repeated accusations that he was guilty.
The videotape also convinced the agents and federal prosecutors that Bagola alone was the man responsible for the murders and the sexual assault of the girl, because Bagola, unlike Dubois, had volunteered previously unknown details of the crime that only the true perpetrator could have known. At Bagola's trial, when his attorneys pointed the finger at DuBois, the jury was able to sort out the truth by viewing both videotapes. Without these recordings, Bagola could have been acquitted, and DuBois perhaps convicted.
This case should serve as a wake-up call to the three major federal investigative agencies of the Department of Justice -- FBI, DEA, and ATF -- to abandon their outmoded opposition to electronic recording. In recent years, pressure from other sources has been mounting on them to adopt this practice. Their failure to record custodial interrogations has repeatedly received biting criticism from federal court judges. Many present and former United States Attorneys and their assistants have also joined the chorus. Indeed, in the wake of Bagola's conviction, the United States Attorney for North Dakota touted the many benefits of recording.
The time has come for all federal law enforcement agencies to act on their own volition to start recording interrogations. If they fail to do so, Congress should pass appropriate legislation, or President Obama -- who in 2003, as a senator in the Illinois General Assembly, helped enact the first state recording statute -- should issue an executive order requiring electronic recording of all custodial suspect interrogations.
Steven A. Drizin, is a Clinical Law Professor at the Northwestern University School of Law and the former Legal Director of the Law School's Center on Wrongful Convictions, who has written extensively and lectures frequently about false and coerced confessions.
Thomas P. Sullivan, a partner at the Chicago office of the law firm of Jenner and Block LLP and a former United States Attorney for the Northern District of Illinois, has been a leading advocate for electronic recording of interrogations for more than a decade. In 2008 he wrote Recording Federal Custodial Interviews, an article refuting baseless objections raised by top officials of the FBI, DEA and ATF to United States Attorney for Arizona Paul K. Charlton's request to institute a statewide federal pilot recording program. American Criminal Law Review, vol. 45, p. 1297.