Anything You (Didn’t Quite) Say May Be Used Against You

FBI’s Refusal to Record Witness Interviews Puts the Innocent at Risk

Did you know that the FBI refuses to record most witness interviews, relying instead on “summaries” drafted by FBI agents?  This creates a terrible risk for innocent people who may find themselves facing felony charges based on an inaccurate or incomplete “summary” of what they supposedly said.

Here’s how it works.  An FBI agent contacts you and wants to ask you a few questions.  You have done nothing wrong, and you don’t want to appear uncooperative, so you agree to talk with him.  His questions are fairly straightforward.  There is no suggestion that you have done anything wrong.  You pay no attention to his colleague who is taking notes.

After the interview, the FBI agent who took notes will dictate or type up a “summary” of what you said on a Form FD-302.  This will become the “official record” of what you said.

A summary is, by definition, an incomplete record.  In the process of taking down notes and later drafting a summary from those notes, some details will necessarily be left out.  Words and phrases may be taken out of context.  Intonation and emphasis will be lost.  Precise words may be replaced with paraphrases. 

The agent will pick and choose those parts of your interview that he thinks are most important.  Those choices will be guided by his subjective judgments and biases.  If the agent thinks you provided evidence that helps support their case against someone else, human nature tells us that his summary will tend to emphasize the parts of your interview supporting that perspective.

Fast forward to many months later.  The agent who interviewed you calls again.  There is still no suggestion that you have done anything wrong.  He just needs you to testify against someone else before a grand jury or at trial.  You have no choice.  If you do not agree to testify, the U.S. Attorney will subpoena you.

The agent and his colleague start to go over your “statement” as recorded on the Form 302.  You are surprised.  Either the agent who was taking notes did not hear you correctly, or left out important details, or the words that you actually said were taken out of context.

When you start clarifying what you actually said or meant, the agents become hostile.  They want to know if you were lying when you were interviewed or if you are lying now.  Because if you lied during your interview, you may be charged with violating the False Statements Act, 18 USC § 1001, for making a false or fraudulent statement to a federal official.  And if you contradict “your” Form 302 “statement” when you testify before a grand jury or in court, you may be charged with perjury.  Either way, you could be facing up to five years in prison if you dare to contradict what the agent wrote on the Form 302.

All this could be avoided, of course, if the FBI would simply record witness interviews.  Then, in the event of a dispute, the judge or jury could listen to the recording and hear for themselves what you actually said.  But as of this writing, the FBI’s official policy is to use audio recorders for the purpose of recording witness statements only on a limited, highly selective basis, and only when authorized by the Special Agent in Charge (SAC).

What should you do if the FBI or another government investigator calls?  Always consult with a lawyer before you say anything.  Your lawyer can talk with the investigator or prosecutor in ways that you cannot.  Most of all, your lawyer can assess the situation and advise you whether to agree to the interview or to testify only in a more formal proceeding where your statements will be recorded verbatim by a court reporter.

Here’s the bottom line:  If you are asked to meet with government investigators, served with a subpoena, or facing criminal charges, then you should consult with an experienced attorney immediately.  We invite you to contact our office at (917) 652-6504 to discuss your options.  Or click here to contact us via email.  Initial consultations are free.

John Howley, Esq.
New York, New York

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