DOJ Announces Significant Policy Shift on Electronic Recordings of Statements; Will Other Agencies Follow?

By JP Ellison & Anne K. Walsh – 
 
On May 22, 2014, the Justice Department announced that it had made a significant policy change regarding its policy concerning whether to electronically record statements made by individuals.   A copy of the relevant DOJ memo is available here. 
 
Beginning on July 11, 2014, there will be a presumption that agents from the FBI, DEA, ATF and the U.S. Marshals Service (all sub-agencies within DOJ and therefore DOJ employees) will electronically record interviews occurring while a person is in federal custody after arrest.  Agents also are encouraged to tape conversations when suspects are not in custodial interview.  DOJ's stated purpose is to have "clear and indisputable records of important statements and confessions made by individuals who have been detained." 
 
With this policy change, whether an interview is recorded may well depend on whether a DOJ employee is one of the criminal investigators assigned to a case.  If recording statements is good policy for DOJ (the principal litigator for the U.S. government, and a significant investigative agency), then other agencies—including FDA’s Office of Criminal Investigations—may follow suit.