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My Cousin Vinny & Form 302: Why an Interview Must be Recorded

Posted by George L. Freeman | May 08, 2020

My Cousin Vinny, a great and hilarious movie, deals with two friends on a road trip.  After leaving a convenience store in rural Alabama, they are suspected of robbing and murdering the convenience store clerk.  Of course, they are innocent, and cousin Vinny comes to the rescue.  The film, apart from being very entertaining, accurately portrays some very real elements of our criminal justice system.  This article focuses on the interview Ralph Macchio's character, Bill, endures with Sheriff Farley.

Recall this scene:

Sheriff Farley testifies that Bill admitted to him twice that he shot the clerk.  This appears to be a solid confession, after all the Sheriff even refers to his notes and report when testifying.  In reality, Bill never admits or confesses to shooting the clerk.  He asks the sheriff, "I shot the clerk?" in response to the Sheriff's accusation.  In other words, he was asking the Sheriff whether he (the Sheriff) thinks Bill shot the clerk.  We know that Bill and Stan, his friend, did no such thing.

This scene portrays what can happen in real life when law enforcement interviews a defendant, or even a witness, and fails to record the interview.  This practice, of not recording interviews, seems to be a policy of the FBI.  Instead of recording the interview of a defendant, they only take notes and later write a report called a Form 302.  This is wholly inadequate and can lead to an unjust outcome in a case.

Most local law enforcement agencies record interviews.  It should be required by law and a prerequisite to the admission of a confession against a person accused of a crime.  There are certainly exceptions that should apply - police may not be able to record in an ongoing emergency or on the scene of a crash or when unexpected events unfold.  But if a police officers arrests you, or comes to your house for a visit, or asks you to come in for an interview at a police station there is no reason at all that the interview be not recorded.

As a prosecutor in Fairfax County, I dealt with hundreds of cases involving violent crimes.  And the detectives in those cases recorded the interviews either with their cell phones or digital recorders.  If the interview took place at a police station, they would use an interview room with audio-visual equipment already installed and ready to record the interview.  This gave everyone confidence in the prosecution, and sometimes helped a defendant and other times helped the prosecution.  

Today, many law enforcement agencies have body cameras, dash cameras in cruisers and everyone in society has access to a camera and digital recorder.  There is no reason whatsoever for the government to not record an interview of a defendant, especially if they seek to use the defendant's words against him in a criminal prosecution.

The decision whether to speak to law enforcement, whether you are under arrest, in custody, or engaged in a consensual encounter, lies with you and you alone.  You are never required to speak to law enforcement; the decision to do so should probably not be made until you have spoken with a lawyer.  Remember, if you do speak to law enforcement, it very well may be a crime to lie to them.  This is all the more reason interviews should be recorded.  If you decide to speak to law enforcement, also decide whether you are willing to do so without an impartial and unbiased recording of the interview. 

Are you willing to make statements to the police and rely on them accurately portraying what was said?  A police officer is a human being and can operate with the most admirable motive to seek justice.  But when it comes time to write their report, it is their memory that creates the record unless there is a recording.  I have read thousands of police reports and watched related videos and audio of various pieces of evidence.  The reports, though containing no indication of deception or malicious intent, do not always convey accurately what actually occurred.  Take the human error out of police interviews and demand your interview be recorded - assuming you have decided to speak in the first place.

About the Author

George L. Freeman

I was born and raised in Fairfax County.  I graduated from Fairfax High School and then from Virginia Tech.  After spending a few years as a bail bondsman and court clerk, I attended the University of Baltimore, School of Law.  I graduated in 2010 with a Juris Doctor, manga cum laude. I spent 9 ...

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