Criminal Defense Update: New DOJ Policy Promotes Recording Arrestee Interviews


The Department of Justice has released a new policy that establishes a “presumption” in favor of recording post-arrest interviews of individuals in the custody of the FBI, DEA, ATF, or U.S. Marshals Service. The policy, outlined in a May 12 memorandum from Deputy Attorney General James Cole, applies to custodial interviews that take place before the arrestee’s initial appearance in court.

The new policy will end the FBI’s heavily criticized prohibition on the recording of interviews without the authorization of a senior supervisor. However, the policy recognizes exceptions to the presumption  if the interviewee refuses to be recorded, for public safety or national security-related intelligence gathering, and where recording the interview is not “reasonably practicable.” The policy also contains a “residual exception,” to be “used sparingly” that permits supervisors to set aside the recording requirement for “a significant and articulable law enforcement purpose.”

The policy change is strongly backed by the defense bar. In a statement, National Association of Criminal Defense Lawyers President Jerry J. Cox said that recording interrogations "protects the accused against police misconduct, protects law enforcement against false allegations, and protects public safety by ensuring a verbatim record of the interrogation process and any statements."

The new policy takes effect on July 11.


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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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