Authorities in Pittsburgh look to record criminal interviews

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Nearly every week at the U.S. Courthouse in Downtown, defense attorneys challenge whether a criminal defendant was read his or her Miranda rights or try to have a confession thrown out. Sometimes such disputes even erupt in civil court, as they did in March, when witnesses in the Jordan Miles police misconduct trial disputed the accuracy of the FBI's interview reports.

It makes you wonder: Why don't federal agents record their interviews?

Starting July 11, they will, according to a memo from the Justice Department to its investigatory parts, obtained by National Public Radio and other news outlets.

The memo by Deputy Attorney General James M. Cole to the FBI, Drug Enforcement Administration, Bureau of Alcohol Tobacco Firearms and Explosives, U.S. Marshals and Bureau of Prisons creates a "presumption" that when an agent sits down with an arrested subject, a video recorder will be on. In the memo, Mr. Cole also "strongly encourages" video recording of interviews with people who aren't under arrest.

The days of extended debates over who said what in the interrogation room, and under what circumstances, could be numbered in federal court.

"What you see in that recording, and what you hear, is what you get," said David Harris, a University of Pittsburgh law professor and author of the book "Failed Evidence: Why Law Enforcement Resists Science." "It will create a record that both sides have to live with."

The memo, dated May 12, reverses federal law enforcement's longtime hesitancy to turn on the voice recorder or camera when questioning a subject or witness.

The Pittsburgh branch of the FBI and U.S. Attorney David Hickton's office declined to elaborate on the new policy.

Federal law enforcement's "position always has been that people will clam up once a recorder comes on," said Robert Leight, an attorney at Pietragallo Gordon Alfano Bosick & Raspanti who has been an FBI agent and an assistant U.S. attorney.

Mr. Leight said it was time for the change.

"I would think every defense lawyer would welcome this change in Department of Justice policy," he said. "And I would think that Department of Justice agencies would welcome this also. ... It will help find that truth that everyone should be focused on."

The feds are behind many local law enforcement agencies when it comes to recording interviews.

John Rago, a law professor at Duquesne University who led the Advisory Committee on Wrongful Convictions for the Joint State Government Commission, said the movement in law enforcement toward recording custodial interrogations has been growing nationwide, although he's surprised it has taken so long.

In early 2013, Allegheny County District Attorney Stephen A. Zappala Jr. asked both the city and county police departments to begin recording their interviews with homicide suspects. The idea now, Mr. Rago said, will be to interview suspects in all serious felony cases.

Mr. Rago, members of the county's Criminal Justice Advisory Board and the Allegheny County Chiefs of Police Association still are working on a draft policy, but he expects it to be completed in the next several months.

With the addition of federal law enforcement recording interviews, Mr. Rago said there now will be a consistency and uniformity across Allegheny County.

There are 166 police agencies and 4,100 officers in the county, and all of them, he said, are on board with recording. "It's as much a cultural shift as a structural shift."

At a law enforcement best practices seminar Friday at Duquesne's Power Center as part of the newly formed integrity division within the Allegheny County district attorney's office, Mr. Rago said he believes Allegheny County's process could serve as a model for the rest of the state.

Elizabeth Township Chief Robert McNeilly said he doesn't think officers are opposed to the idea, but they're simply used to the way it always has been.

Changes in technology -- making audio and video recording much less cost prohibitive than in the past -- have made the prospect that much better, he said.

"Law enforcement is evolving just as society changes. As jury expectations change, we have to evolve with it," said Chief McNeilly, who headed the Pittsburgh Police Bureau from 1996 to 2006.

He referenced a consent decree that Pittsburgh entered into with the Justice Department in 1997. "What we're trying to do [now] is make sure we're conforming to best practices so nobody has to come along to fix something we can do ourselves," he said.

Pittsburgh public safety spokeswoman Sonya Toler said the city police already record interviews with homicide suspects and are looking at expanding the practice.

Former FBI agent Larry Likar, now a chair of the Department of Justice, Law and Security at La Roche College, said the bureau started encouraging audio recording of interviews in the 1990s, but it never was universally embraced.

"The problem that they had was making that a blanket rule" for a bureau that does interviews in sprawling field offices, tiny resident offices, local police stations, living rooms and even in cars and dive bars, Mr. Likar said.

The problem for the bureau now is that juries expect good documentation, he said. "When you don't have a recording, they think something fishy is going on."

The memo allows agents with solid, documented reasons to forego recording. If the interviewee is informed, but refuses to give a recorded statement, "then a recording need not take place," according to the memo.

It also allows agents to tell the subject that they are being video recorded, or to do it secretly.

"Overall, I'd say law enforcement is going to come out better," Mr. Harris said. "Jurors are going to have more trust and confidence in what the police officer said."

Rich Lord: or 412-263-1542. Paula Reed Ward: or 412-263-2620.

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