In the two recent high-profile federal trials of New Orleans police officers, says the New Orleans Times-Picayune, defense attorneys spent much of their time questioning the veracity of FBI agents’ summaries of statements made by witnesses and defendants. Did the witness really say that?, they asked. How can you be sure? Doesn’t room exist for misinterpretation? It’s an oft-used tactic that exists largely because FBI practice limits the taping of interviews or confessions. The FBI’s insistence on using analog technology in a digital age has long stirred controversy in courtrooms across the U.S., and it is sure to be a bone of contention in the upcoming trial of five policemen accused of various roles in post-Hurricane Katrina shootings.
FBI procedure calls for agents to take notes during interviews and use them as the basis for a typewritten summary report, called a form 302. Along with an agent’s own testimony, they serve as the primary record of an interviewee’s statement. Because the substance of the reports is so important — and because the reports are inherently subjective — defense lawyers often seek to pick them apart. putting the agent on the defensive. The decades-old FBI practice has come under increasing scrutiny, with the attorney general’s advisory committee recently assigned to review the policy. Defense attorneys and other critics of the FBI policy have long questioned why the nation’s preeminent law enforcement agency, boasting an enviable arsenal of high-tech tools, reverts to pen and paper when it comes to interviews. They argue that agents can twist, omit, misinterpret, even forget, key points of a conversation.