SUCCESSFULLY ATTACKING THE ORAL STATEMENT
This article is based on a presentation by Inv. Juan Guerrero and Assistant Federal Defenders Anne Burton and Robert Castaneda at a Federal Day Training seminar in Daytona, Florida on April 1, 2009. All three work at the Office of the Federal Defender for the Western District of Texas in El Paso.
Returning to the scene of the crime is a standard tool used in most police investigations. The defense also often conducts its own physical survey of crime scene to test the accuracy of CSI findings. In the case of an oral statement made to the police but not electronically preserved, the report itself becomes a crime scene and the defense investigator assumes the role of forensic detective.
This article is based on a presentation by Inv. Juan Guerrero and Assistant Federal Defenders Anne Burton and Robert Castaneda at a Federal Day Training seminar in Daytona, Florida on April 1, 2009. All three work at the Office of the Federal Defender for the Western District of Texas in El Paso.
Returning to the scene of the crime is a standard tool used in most police investigations. The defense also often conducts its own physical survey of crime scene to test the accuracy of CSI findings. In the case of an oral statement made to the police but not electronically preserved, the report itself becomes a crime scene and the defense investigator assumes the role of forensic detective.
The benefits of electronic recordation of oral statements were recognized in New Jersey, in 2006:
"Electronic recording is a valuable tool to law enforcement. It insures that the suspect's or defendant's statement is accurately recorded and voluntarily made. Electronic recording also protects detectives/investigators and prosecutors from claims of fabrication, omission or lack of thoroughness." (1)
The Federal Bureau of Investigation apparently believes otherwise:
"Use of tape recorders for the purpose of recording the statements of witnesses, suspects and subjects is permissible on a limited, highly selective basis, and only when authorized by the SAC (special agent in charge)." (2)
Both policies control the manner in which investigators document the most common and often most critical evidence developed during the course of a law enforcement investigation. The first policy is mandatory for every police agency in the State of New Jersey. It is often extended to other types of station house interviews and the evidence produced is practically indisputable.
The second is SOP for an organization that considers it to be “the nation’s premier law enforcement agency.” (1)
However, this policy permits the government to play fast and loose with a defendant’s words.
Why don't FBI agents use video or audio recordings when they’re speaking to someone “for the record?” Why does the agency have a policy telling agents they aren't allowed to record without permission from supervisors?
There are many reasons for this and some of them provide insight into the culture of federal law enforcement.
Agency managers will argue that routine use of recording equipment is too expensive. This is a knee-jerk bureaucratic reaction to a sensitive question which is often successful at foreclosing further discussion of the issue.
Another explanation may be that these managers simply don't like change and therefore resist attempts at altering the status quo. Proof of this theory may be found in the circumstances surrounding the dismissal of former Arizona United States Attorney, E. Paul Charlton in December, 2006. Earlier that year, Charlton wrote a memo directing the FBI to begin recording all suspect interrogations. His order, which sent shockwaves throughout the Justice Department, was used as partial justification for terminating him from his post.
Its possible interviews aren’t recorded because agents are trained in the Reid Technique; an interviewing style which relies heavily on interpretation of a subject’s body language in response to certain key questions. The technique is based largely on the premise that a guilty person, who lies about involvement in a crime, will react differently than someone who is innocent and a “Reid Certified” interviewer can tell the difference. The developers of this method recommend interviews not be recorded.
There is also the reality that recording suspect interrogations may reveal techniques which although deemed to be legal, will offend jurors. The belief among prosecutors is that those jurors are only lay persons who won't understand why it’s acceptable to offer false hopes or tell bald faced lies in order to get someone to confess to a crime.
The main justification for not recording may be because the written statements themselves are considered “good evidence.” They rarely challenged and have a proven record of success in helping the government win cases. This begs the question “Are these statements really “good evidence?”
The answer is “No.”
The way to prove a case is through introduction of the best evidence and a defendant’s own words certainly fall into this category. However, since agents are told to take notes and summarize statements allegedly made by the defendant, what the jury eventually hears is a censored version of the truth. One of our goals is to demonstrate this fact at trial.
When it comes time for a trial, the government can not produce the exact dialogue of an interview and instead offers up a serving of “SLOP” - Summaries, Lies, Opinions, Paraphrases and translations.
Reports based on SLOP are highly subjective and each agent will remember the statement or interview differently. In the case of bi-lingual interviews, exculpatory information may “get lost in translation.” SLOP reports also often include the agent's opinions about the defendant's demeanor (e.g. ‘JOE SUSPECT appeared to be uncomfortable.’).
Paper and pencil is no substitute for modern technology and even a simple tape recorder helps to level the playing field; but it is the agent who controls the paper and pencil. Instead of the hearing the best possible evidence the jury potentially hears the worst possible evidence.
And at trial, the government will argue "Who are you going to believe, the FBI agent or a criminal defendant?
The defense investigator won’t know in advance if the oral statements purportedly made by the client will become an issue. A client’s claims of innocence should be taken seriously and the first few hours prior to the preliminary hearing are most critical. The task at this point is to get the information needed to attack the oral statement at the preliminary hearing.
The client knows what happened behind closed doors. The information they possess is time sensitive and details will soon be forgotten. Meet with the client as soon as possible to prevent this from happening.
At this meeting, the investigator should review complaint affidavit. Read between the lines to determine what has been omitted. Was the client abused by agents? Have the client write a narrative of what occurred during the interview. Have them do this again after the preliminary hearing. This is very effective in helping jog the client’s memory. Discovery may also reveal other things the client never mentioned.
It’s possible to use the government's own techniques to get the client to remember the questions that were asked. For example, did the agents make suggestions to the client? Did they ask leading questions? Did they ask ‘If you had committed this, how would you have done it?’ This exercise will be painful for the client.
The client’s ethnic or religious background must be taken into consideration. The client may not want to repeat profanity or ethnic slurs. If it appears the client is refusing to disclose the exact words used by the agents ask leading questions such as “Did the agent call your mother ‘a dirty ‘#$! &%’?”
Do the agent's notes reflect the oral statement? Is the oral statement factually correct and does agree with what is alleged in the affidavit? It is the investigator's job to go outside of the oral statement and the agent's notes to find out what was not said.
“Contact and Cover” interviews, where one agent asks questions and the other takes notes are standard FBI protocol. Close scrutiny of these notes is necessary because one agent may put pressure on another to produce consistent testimony. In a single agent interview, the agent may produce a “confession” claiming the client understood and voluntarily waived all Miranda rights.
It's no simple task to show the jury that an oral statement is defective. Success in this area depends greatly on whether or not the attorney and the investigator are able to work as part of the defense team; which also includes the client. The client is the one providing all the information.
Investigators should receive their own copies of discovery. The pages should be numbered for ease of reference during case conferences. The Pretrial Services Report and the financial report should also receive careful review.
Examine transcripts from other testimony by the same agent on the same day or in other cases. Some agents always say the same thing. You may be able to use that against them.
When an FBI agent takes the stand to introduce an oral statement, jurors generally believe the testimony they hear is accurate, honest and complete. It’s the job of the defense to convince a jury not to take this information at face value and to present the client as having cooperated by waiving valuable rights.
It is critical to pay close attention to the agent on the stand. This is the time preparation meets opportunity.
With thorough preparation it may be possible to impeach government testimony. Is the testimony consistent with the content of the affidavit? Does the agent embellish the written word? Instead of the truth, the agent may offer distortions, misstatements, lies or make mistakes.
Look for other things including:
Does the agent have a sudden recollection of events or statements not included in the report?
Does the agent opine that certain body language or stammering made the client “look nervous”?
Does the oral statement include only the facts that make a case against the client while the report contains many other facts which could support the client’s innocence?
Does the oral statement contain "cop speak"? Civilians don’t use police jargon.
Was there an interpreter present for non-English speakers? What are the interpreter’s qualifications translating the foreign language?
Did the client really understand his rights?
When the client takes the stand; it really is show time. Suddenly everyone is paying attention. Any testimony offered by the client at trial must be flawless. The client should have been prepared to respond to prosecutor's questions through “practice” cross-examination during trial preparation. When the client does well, everyone in the courtroom feels the momentum flowing to the defense.
There are three kinds of jurors who will acquit a client:
1. Ones who believe the client is innocent.
2. Ones who believe the client is probably guilty but there is not enough evidence or evidence good enough to support a guilty verdict - Reasonable Doubt, and
3. Ones that are so offended by the state’s conduct they can not, with good moral conscience find the client guilty.
Oral statements made to police and prosecutors during the course of a criminal investigation are potentially the most compelling evidence introduced at trial. The value of this information is so great the federal government and many states make it a crime to lie to the police. Perjured court testimony is always a crime.
Why then do juries accept questionable statements made by government agents instead demanding unequivocal evidence? Why do they sometimes turn a deaf ear to perjury?
The reason for this is partly because jurors accept the notion that the government can be trusted to have conducted a thorough investigation and has made a correct decision in deciding to prosecute someone for a criminal offense. They are willing to overlook even the most glaring inconsistencies in agent testimony because they need to believe the government acts in good faith and its agents rarely make mistakes.
Mounting a logical, functional attack on an oral statement is no mean feat but, if successful may go a long way toward achieving a “NOT GUILTY” verdict for the client.
(1) NJ ATTORNEY GENERAL DIRECTIVE, 2006-02
(2) Federal Bureau of Investigation Manual of Investigative
Operations and Guidelines (MIOG) – Section 7.
(3) http://www.fbi.gov/libref/historic/history/newdeal.htm
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