Last week, I wrote about why so few people go to trial, and I talked about some of the challenges of going to trial in a criminal case in federal court, particularly in a white-collar case.

This week, I’d like to talk about another challenge with going to trial — statements made to law enforcement by the person who is accused of a crime.

After Zachary Warren was indicted in connection with the Dewey implosion, there was a lot of coverage of why, exactly, a smart, educated, fancy lawyer would talk to law enforcement without a lawyer present. (See, e.g., here, and here, and here).

As these prior pieces talk about, there’s a tactical problem with talking to law enforcement in the first place — the agent may say that he or she is just giving you a chance to “tell your side of the story” or “get the truth out” but, really, that person’s interest is in getting a conviction so they get a stat. They’re trying to build a case against you and that has less to do with celebrating the importance of impartial truth seeking, and much more to do with boxing you in so that a trial would be hopeless (see this on one way to think about the agent’s priorities when they’re taking a statement).

There is, though, another problem with talking to law enforcement — one that, hopefully, DOJ is actually making better.

What’s amazing about talking to people about their interviews with the FBI (or DEA, or OIG agent, etc.) is how often what the agent thinks is important to put in the memo differs from what the person who was interviewed thinks he or she said.

Often, these differences are different in a way that matters a lot. And if the agent is misconstruing what the person said, it can be maddeningly difficult to rebut.

The government, of course, goes first. So the agent tells her version of what happens, often after having been trained on how to testify credibly. A lawyer can cross the agent on the interview, but, of course, the only thing in writing that you have is the memorandum of interview that the agent wrote. And agents are pretty good at sticking to the story in their memo.

Then, several trial days later, the client can tell his or her version of what happens. Of course, that exposes them to cross (and see last week’s column on the perils of that). But days have passed, and the jury may just no longer be listening — having accepted the agent’s story since it’s gone unrebutted for so long.

In one sense, the slip between agents and clients in what was said in a statement may not be nefarious — the agent may not be lying. When an agent goes to talk to some one, the agent already has a relatively good command of what happened. They’ve likely looked at phone records, bank records, and, in some cases email. They know if you received a wire in August of 2012. You may not remember what happened two years ago, but they’ve likely seen the documents. The client and the agent may just be talking past each other.

And, of course, the agent is trying to make a case. She’s listening to try to figure out how to put you in prison. So if there’s ambiguity in what she hears, she has every incentive to hear it as incriminating.

Happily, the Department of Justice just recently issued a memo changing its policy on recording statements. It used to be that a statement was just about never recorded. Even though pretty much everyone has a video camera in their pocket thanks to Steve Jobs, federal agents haven’t been terribly inclined to use that, and other, technology to make sure they get a statement right.

But now, hopefully, that will change (there are, of course, exceptions to the “record the interview” policy — the largest unstated one being that it applies only to custodial interviews. If the FBI shows up at your house, the policy, by its terms, doesn’t apply.). We’ll see how meaningful the rise in recorded statements is, but it’s a start.

New Department Policy Concerning Electronic Recording of Statements [U.S. DOJ via Federal Criminal Appeals Blog]

Earlier: Why Johnny Can’t Talk: Federal Rule of Evidence 608(b) and the Difficulty of Trial


Matt Kaiser is a partner at The Kaiser Law Firm PLLC, a boutique litigation firm in Washington DC, which handles government investigations, white-collar criminal cases, federal criminal appeals, and complex civil litigation. You can reach him by email at mattkaiser@thekaiserlawfirm, and you can follow him on Twitter: @mattkaiser.


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