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DNA and Death

302 Blues: Government Confesses FBI Fallibility

It's a rare day that the federal Government concedes the incompetence of the FBI. But it has happened here in Connecticut. A federal prosecutor who shall go unnamed has filed a motion effectively admitting that FBI 302s aren't worth the paper they're printed on.

Well, he almost made that concession.

The Government has moved in limine to preclude the defense from using a 302 to impeach witnesses. Why? The 302s are mere reports. They are not statements of the witness, and they have not been adopted by the witness. The Government is right, in a niggling, irrelevant sort of way.

What the Government signals in this case is fear that the 302 might be used to undermine the credibility of a key witness. "Sir, you testified here today that the cow jumped over the moon, isn't that right?" The witness answers yes. The defense counsel now moves in for the kill. "But isn't it true, sir, that you previously told the FBI that the cow jumped under the moon?" The witness had said as much to the FBI agent, who dutifully recorded it in the 302.

The Government wants to prevent this latter question from being asked. In making such a motion, it relies on the requirement that a written statement be adopted by the witness. There would be no similar issue if the declarant's words were captured on tape. 

But isn't the motion itself an admission by a party opponent that the FBI agent's observations are themselves not reliable? I wish it were that simple.

302s are the bane of the criminal defense bar's existence. They are detailed notes of interviews written on preprinted forms by FBI agents. Sit and talk to the FBI, and a 302 is generated. But what, as a matter of evidence, is a 302?

It's not really a business record. Sure the agent prepares them routinely as part of his job, and the notes are contemporaneous. But the content of the report often contains utter hearsay. When an agent reports that Joe Blow said Hoffa was buried in his basement, that's just not admissible, unless Joe Blow has been charged and this is the admission of a party opponent.

I've long suspected that the Bureau uses 302s because they are not admissible in and of themselves. Show up to a FBI proffer session or interview with a tape recorder, and all Hell breaks loose. The feds want to control the record, and the record will be whatever the agent choses to write down. 302s are a convenient hermetic seal. 

However, a 302 is not simply notes casually kept by an untrained observer. The agents taking them have been schooled in report writing and in the importance of accuracy. Typically, a witness talking to the FBI has been warned about the consequences of making a false utterance. If it is a proffer agreement in which a target has been told his words will not be used against him, there is a written agreement that the proffer fails if the witness lies. In other words, what is recorded in a 302 comes very close to being a statement. It bears indicia of reliability.

The trial court should deny the Government's motion. While the statements recorded in a 302 are not so reliable as to be admissible for substantive purposes, that is to prove what is asserted, the context in which a 302 is made is reliable enough to show that a witness previously gave a contradictory statement. Such impeachment evidence cannot be used for substantive purposes, but it is useful enough to show that a witness bobs and weaves on when contronted with the truth.

If the court grants the Government's motion, fairness requires a cautionary instruction to jurors to take anything an FBI agent says he observed with a grain of salt.