DOJ POLICY SHIFT REGARDING ELECTRONIC RECORDING OF STATEMENTS BY THOSE DETAINED

On May 22, Attorney General Eric Holder announced that the DOJ had enacted a new policy that statements made by an individual in federal custody (following their arrest but prior to their first appearance in court) will be electronically recorded.

The policy, which will go into effect on July 11, 2014, establishes a broad presumption that the FBI, DEA, ATF and U.S. Marshals Service will electronically record all interviews occurring in a place of detention where persons are held in connection with federal criminal charges. Video recording should be used when possible, however if suitable video equipment is not available, audio recording may be conducted.

The policy does allow for some exceptions – where a detainee requests no recording or when the recording is not practicable.

The practice of recording interrogations can help avoid issues with Miranda and also issues as to the admissibility and voluntariness of confessions. Accordingly, criminal defense practitioners have long been seeking for federal authorities to electronically record interrogations. The DOJ’s new policy shift, establishing a presumption that all interviews post-arrest and prior to the initial appearance be recorded, is a triumph in that regard.