The FBI 302 Form Interview Procedure
Routinely, two agents conduct the interview, usually one asking the questions while the other takes notes on a pocket pad and sometime later dictates a summary of the interview which dictation is sometime later transcribed on a 302 form which is eventually returned to the agent for review and signature (or any corrections, additions or deletions he might consider appropriate). It's not evidence of what the agents or the person interviewed actually said. At best, it's the agent's recollection of what was said. At worst, it's an invitation to skullduggery and - keeping in mind the information is Intelligence - potentially horrendous peril for all Americans as the obvious Intelligence breakdown prior to the events of 11 September 2001 dramatized.
The 302 procedure guarantees that even the interviewing agents' Supervisors have no way of knowing what was actually said - and not said - by any of those present, much less whether the interview was thorough and complete.</font size>
http://www.ntsb.gov/events/TWA800/Transcript_8_23_3.htm
[excerpt][quote] " . . . . . the FBI did not make any transcripts or recordings of these interviews. Documents are written in the words of the FBI agents who prepared them. Some of the documents contain incomplete information or are vaguely worded. In other words, the documents may not always say what the witness said." [end quote]
http://www.law.emory.edu/4circuit/june96/945902.p.html
[excerpt][quote] "Thus, when a government agent interviews a witness and takes contemporaneous notes of the witness' responses, the notes do not become the witness' statement- - despite the agent's best efforts to be accurate- - if the agent "does not read back, or the witness does not read, what the [agent] has written." Goldberg v. United States, 425 U.S. 94, 110- 11 n.19 (1976). And a government agent's interview notes that "merely select portions, albeit accurately, from a lengthy oral recital" do not satisfy the Jencks Act's requirement of a "substantially verbatim recital." Palermo, 360 U.S. at 352. [end quote]
In short, the FBI 302 form interview summaries are not "witness reports" or "witness statements" or "witness declarations" and don't document anything said during the interviews.
Why does the FBI cling to the 302 interview procedure?
To tilt the playing field in the prosecutions' favor in the event of an arrest by avoiding the documentation of any suggestive "leading" questions by the agents and any exculpatory statements that might be made by those being interviewed or even the agents themselves.
Trial lawyers dealing with cases involving FBI 302 form interview summaries instead of recorded interviews and the transcripts of those recorded interviews routinely raise hell about it not just those reasons but also for the the obvious reason that they can neither hear for themselves everything both the witness and the interviewer actually said nor read everything both the witness and the interviewer actually said.
The press is well aware of the problem, as the following documents, but have done a poor job of bringing it to the attention of the public.
http://www.usdoj.gov/ag/speeches/1998/jan1598.htm
[quote]
QUESTION: After the Nichols trial, there was some concern on the part of some of the jurors there about the fact -- and this comes up from time to time -- that the FBI does not transcribe interviews, it does this form 302. And every once in a while somebody says, you know, that it is not the best evidence, 302's are summaries of what something thinks somebody said. And people, every once in a while, look at whether the FBI should change that.
Is that anything that is being looked at? During the time you have been Attorney General, has anyone ever suggested that the FBI ought to change that practice?
ATTORNEY GENERAL RENO: I have heard it on occasions and have discussed it with Director Freeh. I cannot discuss it in the context of this particular case.
QUESTION: But as a general matter, is that something that is pretty much a dead letter now?
ATTORNEY GENERAL RENO: As always, we continue to review each issues, the circumstances of the issue in the context it arises, to see what is appropriate. But, again, with respect to this matter, in this case, I cannot discuss it.
QUESTION: Yes, but as a general matter, does it strike you as a good idea, the way the FBI does the 302's? Do you see any need to change that?
ATTORNEY GENERAL RENO: I think, each case, you have got to look at it on a case-by-case basis, and I think that is what the Bureau does.
QUESTION: Are you saying that they sometimes use a tape recorder?
ATTORNEY GENERAL RENO: Again, I think you have to look at the specific examples of each case and make the best judgment of what is right in that case.
QUESTION: (Off microphone) -- some have suggested the FBI should no longer use this form 302, and should go to a transcription of interviews. Would that be a good idea, in your view?
ATTORNEY GENERAL RENO: Again, you are going to have to look at the whole matter: each case, when you interview, who you interview, what the circumstances are.
QUESTION: But the FBI has a policy that applies to all cases all the time, that they do not tape record their interviews.
ATTORNEY GENERAL RENO: I will be happy to check with Director Freeh and clarify anything that I have said. But, again, I cannot comment on this particular case. And I think you have got to look at the larger picture. [end quote]
Janet Reno obviously chose to engage in wiggleworming when publicly confronted with the indefensible FBI 302 form interview procedure.
Los Angeles Times 7-31-2001 Hearings Open on Mueller
Senate: Bush's pick to head the FBI tells panel his "highest priority" is to restore public's trust in the battle-weary bureau. [excerpt] " . . . . . he said he would consider expanded tape-recording of FBI interviews to give its investigations greater credibility--another idea the bureau has resisted through the years." [end excerpt]