Why Elliot Ness Can't Operate A Tape Recorder

Here’s some free legal advice that might just keep you out of jail: If federal officials pay you a surprise visit and want to talk to you, don’t do it. If you just can’t say no, then demand that they permit you to tape record your conversation with them. If they won’t let you record the conversation, then, at the very least, take their business cards, call a lawyer, and politely ask them to leave your premises.

Why such a hardline with the feds?

It is a federal offense to lie to a government employee. (It is not, however, a violation of the law for a government official to lie to you as an investigative technique. The Supreme Court recognizes a modest degree of deception as a legitimate law enforcement tactic.)

But who is to say just what constitutes a lie?

Suppose federal officials interview Tom, Dick and Harry, and this happy trio reports that the light at the intersection was green at some important moment. When the agents interview you, you tell them it was red, because that is what you recall. Is that a lie?

Nothing would prevent a prosecutor from so concluding. You might then find yourself defending against an accusation that you lied to a federal official in the performance of their duties, a felony carrying up to five years in prison.

Good prosecutors will tell you not to worry about such mistakes in memory. They will only prosecute serious cases of dishonesty. But who’s to decide what is and is not serious?

Recall the Martha Stewart case.

She was prosecuted for insider trading. She was acquitted of that charge, but convicted of lying to federal investigators. Robell Philoppos, a young man in Boston, now faces federal charges for lying to federal prosecutors about his contact with one of the brothers accused of detonating a bomb at this year’s Boston Marathon.

Federal agents are told not to record interviews, this despite the fact that the technology for doing so is inexpensive and easy to use.

Instead, the agents typically travel in twos. One agent will conduct the interview, while the other takes copious notes of what he or she hears. These notes are later typed up and kept as part of the case file. The Federal Bureau of Investigation calls these reports 302s, referring to the pre-printed form number on the paper onto which they are required to type statements.

After an interview, agents are free to type whatsoever they like on the 302. Perhaps they get it right. Perhaps they don’t. But your liberty might depend on what they put on that form.

How do you protect yourself if you are accused of lying?

“I didn’t say that,” you say.

“I’ve reviewed my notes,” a special agent of the FBI testifies — all agents, by the way, are special as a matter of course — “and the witness lied.” Just try explaining to an ordinary group of jurors that the agent is wrong. Most jurors, most of the time, fall in love with the badge.

In ordinary civil proceedings, parties have a duty to preserve evidence that might be of use in a case. A party that deliberately destroys or fails to preserve evidence can be assessed hefty fines for “spoliation” of evidence. It is even a federal offense to destroy evidence in contemplation of a federal investigation.

Why do federal officials get a wink and a nod when it comes to the preservation of evidence?

The simple answer is that they have destroyed nothing. By refusing electronically to record interviews, agents can claim, with a straight face, that they have not engaged in spoliation. That’s one reason lawmen refuse to record interviews.

Indeed, lawmen go so far as to claim that recording interviews impedes fact finding. Folks might not be inclined to speak if they know their words are being recorded, the reasoning goes. Yet these same folks are presumably ready, willing and able to babble on at will to an agent taking notes. There’s a disconnect here that only a “special” agent can explain.

Federal officials horde data. We learned this week that the Internal Revenue Service has targeted tea party groups for special audit treatment, a marriage of rivals in which, it can easily be said, the parties deserve one another. And then came news that the Justice Department has been targeting Associated Press journalists’ telephone records, apparently to find out who reporters talk to about the Government. The Government knows no shame when it wants information about you.

My wife and I own a small bookshop located in Bethany. It’s about 10 miles from downtown New Haven. It’s been operating out of two old barns since the 1940s, and is called Whitlock Farm Booksellers.

We filed amended tax returns for the book store not long ago, after discovering an accounting error that cost us plenty. I was not surprised when shortly thereafter we were audited by the federal taxman. I laid down ground rules quickly with our accountant: I would not speak to the auditor about the store.

Why such a hard line? I am largely an absentee owner of the shop. I have a general idea of what goes on there. What if I answered a question and got it wrong? Would I be accused of lying? Or what if the auditor misunderstood what I said, and I had only her notes to support my version of what took place?

“I’ll take my chances with the audit,” I told our accountant. “I’d rather pay whatever the auditor concludes I owe than place my fate in the hands of a federal official.” I was relieved when the audit was concluded.

I don’t know why the federal judiciary doesn’t take a dim view of federal interviewing tactics. There should be a presumption that a failure to record an interview sheds an unfavorable light on the agents engaged in playing hide and seek with the truth. Somehow, I am unpersuaded when a federal agent asks me to trust him just because he’s from the Government.

I’ve seen too much to be such an easy mark.


Also listed under: Journal Register Columns


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