New policy requires feds to record interviews
FARGO, N.D. — A new federal directive requiring criminal investigators to record interrogations of suspects while in police custody has the support of North Dakota’s top federal prosecutor.
The office of Tim Purdon, the U.S. attorney for North Dakota, prosecuted a murder case last year involving the stabbing deaths of two children on the Spirit Lake Reservation that helped shine a spotlight on the issue.
Jurors in the trial of Valentino Bagola watched two video-recorded interviews in which FBI agents obtained confessions — Bagola and the victims’ father, Travis DuBois Sr., whose children were found stabbed to death in the family’s home in St. Michael in 2011.
DuBois, whose confession came in a prolonged and confrontational interview, later recanted his statement. Bagola’s confession was corroborated by DNA and other evidence, but he also disavowed his statement and is appealing his murder convictions.
“This is something the U.S. attorney community has been working on a number of years with the department,” Purdon said, referring to the new policy to record so-called “custodial” interviews.
The policy, announced in mid-May and effective July 11, covers law enforcement agencies under the U.S. Department of Justice, including the FBI, Drug Enforcement Administration, Bureau of Alcohol, Tobacco, Firearms and Explosives, and U.S. Marshal’s Service.
Under previous policy, FBI agents could at their discretion record interviews, if they had permission from their superiors. The problem with that policy, Purdon said, is permission can take time to obtain and was not universally granted.
In an age when any smartphone is an audio and video recording device, juries have grown accustomed to documented interviews, he said.
“People expect to see this in today’s world,” Purdon added. “As a practical matter, jurors expect to see recorded statements.”
Steven Drizin, a professor at the Northwestern University School of Law in Chicago who has been an advocate of recorded law enforcement interviews, praised the policy switch.
“This is a watershed moment because the federal law agencies had been extremely resistant to recording at a time when the trend in the states was to look upon recording more favorably,” Drizin said.
Nineteen states, including Minnesota, and the District of Columbia, now allow or require recording suspect interviews. North Dakota does not have such a requirement — and legislators rejected a proposal in 2011 — but recording suspect interviews has been widely adopted by many agencies, including Fargo police, Cass County and state police.
Because both the DuBois and Bagola interviews were recorded, and jurors could evaluate the questioning and suspects’ demeanor, a likely wrongful conviction of the children’s father was avoided, Drizin said.
Thomas Sullivan, a former U.S. attorney in Illinois and advocate for recording interviews, said the new federal policy will help to persuade states like North Dakota to follow suit.
“It’s a major, major development,” he said.
Sullivan had been arguing for the switch for the past decade, including publishing law review articles to rebut arguments against recording, including cost and jeopardizing prosecutions.
In fact, he said, the failure to record interviews sometimes favored defendants who argued that their statements had been coerced.
Sullivan and Drizin said the FBI had long resisted a directive to record suspect interviews, but that view gradually lost out to prosecutors who favored the practice.
“Over time, a critical mass of prosecutors prevailed,” Drizin said.