The 411 On The 302

Pondering the case of Robel Phillipos – one of the friends of the Boston bombers who faces charges of making false statements to the FBI – Harvey Silverglate encourages us to “withhold judgment not only as to what Phillipos did or did not do, but also as to what he did or did not say when questioned by FBI agents”:

FBI agents always interview in pairs. One agent asks the questions, while the other writes up what is called a “form 302 report” based on his notes. The 302 report, which the interviewee does not normally see, becomes the official record of the exchange; any interviewee who contests its accuracy risks prosecution for lying to a federal official, a felony. And here is the key problem that throws the accuracy of all such statements and reports into doubt: FBI agents almost never electronically record their interrogations; to do so would be against written policy. …

[S]uch interview tactics seem virtually geared toward establishing as fact what the FBI wanted to hear from the witness. Frightened and confused interviewees, who, if they deny they said what any 302 report claims they uttered, can then be indicted for making false statements. The FBI is thus able to put words into a witness or suspect’s mouth and coerce him to adopt the FBI’s version as his own. The FBI thus establishes the official version of what a witness said, and the pressure on the witness to adhere to the 302 version is enormous. Any deviation, after all, raises the question: “Were you lying during your FBI interview, or are you lying now?”