The FBI’s Interview Procedures Need Reforming for Fairer Trials

There is a pressing need to reform how the Federal Bureau of Investigation’s agents collect information from witnesses during interviews. Too often, they take brief handwritten notes and try to reconstruct them later in typed memos.

Because notes are cursory and memories can fail, these memos frequently contain significant mistakes. Agents routinely testify in criminal cases and obtain convictions based on flawed memos.

This practice is hurting our justice system and has left behind a trail of failed prosecutions. Even worse, innocent people have likely been convicted based on inaccurate reports of interviews.

This could be avoided if the FBI simply recorded every interview. In 2022, the agency’s mistakes piled up in a series of high-profile cases. It’s time to reform the interview process and build a framework for more just trials.

Michael Sussmann

In May, prominent attorney Michael Sussmann was acquitted on a charge of making a false statement to the FBI. Sussmann had asked FBI General Counsel James Baker for a meeting to share allegations about the Trump Organization.

The Justice Department argued Sussmann represented Hillary Clinton’s campaign and a technology executive but misled the FBI into believing he was acting on his own.

Baker testified at trial that he was “100 percent confident” that Sussmann said he wasn’t bringing allegations on behalf of any client. But Baker had not taped the statement or taken notes, and made inconsistent statements about the subject when later questioned about it. The jury was not convinced.

USA Gymnasts

In June, the FBI was sued for more than a billion dollars by 90 women who were abused by Lawrence Nassar, a physician affiliated with USA Gymnastics. There were substantial delays in prosecuting Nassar, some due to poor FBI interview notes. The lawsuit followed a scathing report by the DOJ’s Office of Inspector General, which blamed a supervisory FBI agent for failing to accurately document one gymnast’s allegations.

Celadon Group Executives

In August, federal prosecutors in Indianapolis dismissed a securities fraud indictment against two former executives of a national trucking firm.

While accompanied by five prosecutors and agents, an FBI agent interviewed one of the executives. After the agent’s memo was challenged, a federal judge refused to allow the government to rely on it.

The judge shared “significant doubts” about the accuracy of the FBI agent’s memo “and of her recollections in general.” The judge concluded that the defense’s cross-examination of the agent was “devastating” because of at least 150 instances where the agent admitted that she did not have any independent recollection about the interview other than what was in her cursory notes.

Other undisputed evidence, including a federal prosecutor’s statements, showed the agent’s notes were wrong and had falsely attributed an incriminating statement to the executive. Shortly after the judge’s ruling, the DOJ moved to dismiss all charges in the case in the interest of justice.

Thomas Barrack

In November, federal prosecutors in Brooklyn lost a trial brought against Thomas Barrack, a former Trump adviser accused of working as an agent for the United Arab Emirates. The indictment also accused Barrack of lying to investigators.

But during the trial, the FBI agent’s testimony proved disastrous for the government. During a cross-examination described by press as “scathing” and “withering,” the agent admitted that the FBI had not written down the questions for the interview and that a recording would have been “more complete.”

Time for an Update

Anyone would struggle to take comprehensive and accurate handwritten notes of interviews lasting for several hours. It is difficult to write down every question and every answer, particularly those that are nuanced or complex. Prosecutors and witnesses usually speak faster than agents can write.

Many state and local law enforcement authorities record all interviews as a matter of course, and have done so for decades. This is easier, more efficient, and more accurate.

In 2014, the DOJ announced a policy creating a “presumption” for recording the interviews of individuals in custody. It also presented broad reasons why prosecutors and agents could decide not to record interviews. Even more importantly, the announcement did not apply to any interviewee who was not in custody.

The DOJ and FBI generally resist any systemic effort to impose an obligation to record all interviews. The FBI believes it helps to build rapport with witnesses if interviews are not recorded, and that witnesses might not be as forthcoming if they are recorded.

But rapport-building shouldn’t come at the expense of accuracy, particularly when this practice might lead to the incarceration of an innocent person.

Handwritten notes also give the DOJ a strategic advantage at trial. While defending the practice, the FBI acknowledged in a 2006 memo that “as all experienced investigators and prosecutors know, perfectly lawful and acceptable interviewing techniques do not always come across in recorded fashion to lay persons as proper means of obtaining information from defendants.”

The memo elaborated that "[i]nitial resistance may be interpreted as involuntariness and misleading a defendant as to the quality of evidence against him may appear to be unfair deceit.”

That position reflects distrust of juries, which should be allowed to evaluate precisely how a statement has been elicited by law enforcement and whether to credit that statement as reliable and accurate. The exact content of the questions and tone of questioners matter, as do the witness’s words.

In deciding the truth, juries should hear what statements were actually made, not an FBI agent’s scribbled summary. Accuracy is more important than strategy. The FBI should follow the facts wherever they lead and record every interview it conducts. This reform is long overdue.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Michael Kelly is a partner in the Litigation Practice Group at Akerman. He defends companies and individuals in criminal and civil enforcement actions covering a wide variety of issues.