Deceptive Practices Get Good Results for Friendly FBI Agents
We have on a number of occasions advised our readers that if confronted by law enforcement about any criminal matter, they should not speak to the officials without the presence of an attorney. There are reasons for this advice.
There is a significant difference from giving the police a statement if you are the victim of a crime or a witness to a crime and agreeing to be interviewed by law enforcement in connection with a criminal inquiry, whether a person of interest, suspect or target. Law enforcement does not knock on your door and ask to speak to you in a vacuum. They are at your door to secure information about you or about someone you may know. Although their introduction is generally cordial, professional, even polite, the police are not at your door as your friends but as a determined force of the government to secure even the slightest morsel of incriminating evidence about criminal activity.
Custodial and Non-Custodial
There are two kinds of police interviews: custodial and non-custodial interrogations.
In 1966, the U.S. Supreme Court in its infamous Miranda decision broadly defined a custodial interrogation is one in which “questioning [is] initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.”
At this point in the investigatory process, law enforcement has a constitutional duty to advise the detained individual that he or she has the right to have an attorney present during the questioning.
This duty, however, does not extend to “everyone whom [the police] question.”
Police Custody
The fact that an individual is questioned at the police department, even as a suspect in a crime, does not automatically trigger to duty to deliver the right to counsel warning. Rather, as the Supreme Court pointed out in a 1977 decision, “Miranda warnings are required only where there has been such a restriction on a person’s freedom as to render him ‘in custody.’ It was that sort of coercive environment to which Miranda by its terms was made applicable, and to which it is limited.”
Many state law enforcement agencies routinely record their “in custody” interrogations, although it is not uncommon to find that these videotaped sessions are edited to primarily include admissions of guilt.
FBI Policy to Record in Custody Interviews
It was not until May 2014 that the FBI (along with other federal agencies with law enforcement responsibilities), as a matter of policy, began to electronically record its “in custody” interrogations.
There are, however, significant flaws in the FBI recording policy. First, the agents do not have to inform the questioned individual that the interrogation is being recorded; and, second, in “national security” investigations, there is an accepted presumption that interrogations will not be recorded. To put these flaws into plain English, a suspected bank robber will almost always have his or her in custody interrogation recorded while a suspected terrorist will not.
Non-Custodial Interviews With FBI
The FBI’s handling of non-custodial interrogations, which are not recorded, is equally fraught with flaws. The agents conduct these interviews with individuals, either in an FBI office or at the individual’s home/workplace, taking notes in the process. These notes will later be memorialized in a form called a 302. These forms allow the agents to craft the kind of narrative he or she wants concerning the interview. Worse yet, the agents will often use the 302s to threaten an individual into self-incrimination or the incrimination of others by saying any “false statement” in the form will lead to prosecution.
FBI Meets at Starbucks
But long before the agents get to the 302 threatening stage in an investigation, they will approach the individual as seekers of the truth and friends of justice. As Peter Maass pointed out in a December 28, 2017 Intercept article, the agents will share coffee or tea with the individual and engage them in the time-tested friendly banter designed to disarm the interviewee to make them more forthcoming.
In the Intercept article, Mike German, a retired FBI agent who is now a fellow at the Brennan Center for Justice, told Maass that, “Good interviewers have an instinct to find some connection with the person you are interviewing and try to make them comfortable. You want to have the person you are interviewing in a cooperative mood. People tend to cooperate with people they have some positive feeling for. The ability to make a personal connection in a short period of time is a valuable talent.”
FBI Agents Come Prepared
German pointed out that FBI agents are often armed with far more information than the individual they are interviewing is led to believe, including in-depth personal information about the interviewee. This is a tremendous advantage for the agent because, as German put it, “I think it’s just human nature to feel like you can talk your way out of it or minimize your conduct in a way that can help you. What any lawyer will tell you is, ‘No you can’t. There’s nothing positive you can do for yourself in that interaction, and in fact, that’s why you need to get legal representation before talking with law enforcement.’”
Nothing Positive to Gain by Meeting Without a Lawyer
This former FBI agent hit the proverbial nail directly on the head: do not sit down with any law enforcement agent to be interviewed about any matter of interest to the agent. If the agent is well-intentioned and has approached you with neutral motives (and that is hardly ever the case), he or she will not only agree to the presence of counsel but encourage you to have one present.
The individual must always remember that when law enforcement friendliness doesn’t work, they will inevitably resort to threats and coercion to either uncover incriminating information about the individual or force cooperation from the individual against someone else. The days when the individual could trust the police, if those days ever truly existed in the first place, are long past. A law enforcement officer at your door or in your face about any matter, regardless of how innocuous it may seem, poses a threat to you and the very quality of your life.
It is one thing to support the police; quite another to give them blind faith. The old adage, “better safe than sorry” applies when it comes to police interviews. As Mike German said, get a lawyer.
A lawyer is your friend; the police are not.
Do Not Talk to FBI Agents or Federal Criminal Investigators Without a Lawyer
Federal agents are trained in interviews tactics that encourage individuals to cooperate and talk. Do not be fooled by statements like: “If you haven’t done anything wrong you don’t need a lawyer,” “I am just trying to close this investigation,” “if you have nothing to hide you don’t need a lawyer,” or any other psychological ploy to get a suspect talking. Be smart, talk to a lawyer before you talk to the FBI.