Why is the failure to record so objectionable? The Arizona Central article lists several reasons. Recording interrogations is beneficial to both the accused and law enforcement. It provides protection against police misconduct, coerced false confessions and Miranda violations, while also protecting law enforcement against false allegations. It can also help investigators by allowing them to go back later and review a suspect's statements for inconsistencies or details that didn't seem important at the time. Recordings provide an "instant replay" of what was done and said, enabling court rulings to be based on fact rather than credi. Judges can render decisions based on facts, rather than having to make a credibility determination of which competing version to believe.

Here is how one brief from 2010 I recently came across describes the problem with not recording interviews:

"In an age in which electronics have reduced both the size and cost of recording devices, it is inconceivable that FBI agents would examine critical witnesses on vital subjects without making any effort to obtain an actual recording of what was said. Indeed the only purpose for not recording interviews with witnesses like [name deleted] would seem to be to assure that the only record of what was stated comes from the Agents. The problem with that is not that Agents are dishonest or prone to making things up but that at that stage of the proceeding they are hardly neutral. They believe criminal conduct has occurred and they are attempting to show that the defendant with whom they are speaking is criminally culpable.

They have a bias. The raw notes of [an] interview do not purport to be a verbatim transcript of what is said, but rather those things which the Agent considers important. They generally do not record the questions asked or the context in which they are given. Moreover, they do not record the tone or the pacing of the witness’s remarks, all of which are critical to an understanding of whether the witness was making a false statement or simply reflecting an inability to recall that which was said.

The FBI 302 is used to allow Agents to refresh their recollection of what transpired and accordingly actually becomes a foundation for part of the evidence in the case, whether it is actually admitted or not. The Agent, if challenged on his recollection of events that occurred years earlier, can always say that he prepared a report of interview within a few days of the interview occurring and that he was thus able to refresh his recollection about what transpired by reviewing such a document. By conducting an interview with a person who they reasonably perceive as being a potential target and not recording those statements, the Agents have effectively destroyed evidence. After all, the “evidence” of guilt or innocence in regard to this charge is what in fact [the] defendant actually said at that time. That will never be known because the Agent took no steps to preserve the actual words. Moreover, the only record provided is the final product of a process, an edited version of the original notes.

In the 21st Century, it is time for the Bureau to accept the reality that its process of one-sided gathering of witness statements is outdated, inappropriate and a violation of defendant’s Constitutional rights. The process destroys all defendants’ rights to due process of law, guaranteed under the Fifth and Sixth Amendments of the United States Constitution.

The new policy applies to the FBI, DEA and ATF, BOP and the U.S. Marshals Service. The memo says there will be a presumption in favor of recording custodial interviews. It also encourages agents and prosecutors to record non-custodial interrogations. There are some exceptions, and the memo notes that it is internal guidance and not enforceable by others. DOJ will be providing training to prosecutors on the new policy.

Again, this is a very welcome change and one that's long overdue. Also see BMaz's post at Empty Wheel.