oversight

Naval Criminal Investigative Service: Fraud Interview Policies Similar to Other Federal Law Enforcement Agencies

Published by the Government Accountability Office on 1997-04-07.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

                   United States General Accounting Office

GAO                Report to Congressional Committees




April 1997
                   NAVAL CRIMINAL
                   INVESTIGATIVE
                   SERVICE
                   Fraud Interview Policies
                   Similar to Other Federal
                   Law Enforcement
                   Agencies




GAO/NSIAD-97-117
             United States
GAO          General Accounting Office
             Washington, D.C. 20548

             National Security and
             International Affairs Division

             B-276500

             April 7, 1997

             The Honorable Strom Thurmond
             Chairman
             The Honorable Carl Levin
             Ranking Minority Member
             Committee on Armed Services
             United States Senate

             The Honorable Floyd Spence
             Chairman
             The Honorable Ronald Dellums
             Ranking Minority Member
             Committee on National Security
             House of Representatives

             Section 1046 of the National Defense Authorization Act for Fiscal Year
             1997 (P.L. 104-201) directed us to review the policies and practices of the
             Naval Criminal Investigative Service (NCIS) regarding agent interviews of
             suspects and witnesses during procurement fraud investigations.
             Specifically, this report addresses (1) NCIS policies on interviewing,
             including agent conduct and demeanor and the carrying and display of
             weapons; (2) controls to deter inappropriate conduct by agents; and
             (3) the desirability and feasibility of audio- or videotaping interviews and
             making the recording or transcription available to the person interviewed.


             Under authority of the Inspector General Act of 1978, the Defense Criminal
Background   Investigative Service (DCIS) and the military criminal investigative
             organization within each of the services investigate alleged procurement
             fraud. NCIS has primary responsibility for investigating alleged
             procurement fraud affecting the Navy. Within the Department of Justice,
             the Federal Bureau of Investigation (FBI) investigates fraud. Each of these
             investigating agencies provides evidence to support the prosecuting
             authorities.

             Between January 1989 and July 1996, NCIS agents participated in over
             114,000 criminal investigations. In March 1997, 113 NCIS fraud agents were
             involved in the investigation of 811 cases for crimes such as antitrust
             violations, cost mischarging, product substitution, and computer intrusion.
             Although NCIS agents generally investigate procurement fraud cases
             independently, investigative jurisdiction in 320 of the 811 cases, or about




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                   39 percent, was shared with DCIS, FBI, and other military or civilian criminal
                   investigative organizations.

                   Agents interview individuals to obtain evidence in criminal investigations.
                   An interview is the formal questioning of an individual who either has or is
                   believed to have information relevant to an investigation. Interviews are
                   normally conducted with willing witnesses and informants. An
                   interrogation is a special type of interview that has an added purpose of
                   securing an admission or confession of guilt regarding the commission or
                   participation in the crime or obtaining pertinent knowledge regarding the
                   crime. Interrogations are normally conducted with suspects or unwilling
                   witnesses. According to NCIS officials, most testimonial evidence in fraud
                   cases is acquired through interviews; however, policies covering areas
                   such as agent demeanor and the display of weapons are the same whether
                   the format of questioning is an interview or interrogation.

                   Over the years, allegations have been made regarding the use of
                   inappropriate interview techniques by NCIS agents when questioning
                   suspects and witnesses. In January 1995, a Department of Defense (DOD)
                   advisory board, commissioned by the Secretary of Defense to review
                   criminal investigations within the agency, reported that it had heard
                   complaints of abusive interview techniques by NCIS agents.1 In its report,
                   the advisory board noted that several defense attorneys suggested that
                   subjects should be provided with additional protection against potential
                   abuses by requiring that all interviews be videotaped.


                   According to federal law enforcement experts, Naval Criminal
Results in Brief   Investigative Service interview policies are in accordance with generally
                   accepted federal law enforcement standards and applicable laws. They are
                   also similar to the Defense Criminal Investigative Service’s and Federal
                   Bureau of Investigation’s interview policies. Specifically, Naval Criminal
                   Investigative Service interview policies prohibit the indiscriminate display
                   of weapons or the use of threats, promises, inducements, or physical or
                   mental abuse by agents attempting to influence an individual during
                   interviews.

                   The Naval Criminal Investigative Service has established controls to deter,
                   detect, and deal with agent misconduct. Naval Criminal Investigative
                   Service agents are trained in interview policies at their initial training at

                   1
                    Report of the Advisory Board on the Investigative Capability of the Department of Defense, Volumes I
                   and II, January 1995.



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the Federal Law Enforcement Training Center and through in-house and
contractor training. Other controls include (1) periodic inspections of
Naval Criminal Investigative Service field offices, (2) internal
investigations of alleged agent misconduct, (3) oversight of cases and
allegations of agent misconduct by the DOD Inspector General, and (4) the
involvement of the U.S. Attorney’s offices in grand jury investigations and
prosecutions.

Furthermore, judicial review of evidence presented also acts as a deterrent
to inappropriate agent conduct since inappropriate or illegal behavior may
result in the evidence obtained not being admissible in court. The DOD
Inspector General and Naval Criminal Investigative Service could identify
only six cases since January 1989 in which misconduct was substantiated,
and none of those cases involved procurement fraud investigations.
Interviews with selected Assistant U.S. Attorneys, the Navy’s General
Counsel, and Naval Criminal Investigative Service agents identified no
additional substantiated cases. In its 1995 report, DOD’s advisory board also
reported no widespread abuse of subjects’ rights by military criminal
investigative organization agents.

Naval Criminal Investigative Service policies do not prohibit audio- or
videotaping of interviews or distributing the written or taped results to the
interviewee. The Naval Criminal Investigative Service does not routinely
tape interviews. In 1996, Naval Criminal Investigative Service agents
videotaped 79 interviews, 23 of which were interrogations. About
65 percent of the tapings involved child abuse cases. Officials from the
Defense Criminal Investigative Service and the Federal Bureau of
Investigation stated that their agencies also do not routinely tape
interviews.

Officials from the Naval Criminal Investigative Service, the Defense
Criminal Investigative Service, the Federal Bureau of Investigation, and
selected Assistant U.S. Attorneys did not support the idea of routinely
taping interviews. The Naval Criminal Investigative Service considers
routine taping of interviews to be unjustified, given the equipment and
transcription costs and the large volume of interviews associated with
procurement fraud investigations. DOD and Department of Justice officials
noted that routine audio- or videotaping would not improve the quality of
the investigation or court proceedings. The DOD advisory board agreed that
the routine taping of interviews was unnecessary, given the lack of any
evidence supporting a widespread abuse of subjects’ rights by agents from
military criminal investigative organizations.



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                        NCIS interview policies are consistent with those of both DCIS and FBI.
NCIS Interview          Generally, policies of all three agencies seek to ensure that interviews of
Policies Are            witnesses and suspects are done in a professional manner without the use
Consistent With Those   of duress, force, and physical or mental abuse. More specifically, these
                        policies prohibit agents from making promises or threats to gain
of Other Federal Law    cooperation; using deceit, which courts could view as overcoming an
Enforcement             interviewee’s free will; or indiscriminately displaying weapons. A detailed
                        comparison of the policies is in appendix I.
Agencies
                        To ensure that constitutional rights are not violated, NCIS, DCIS, and FBI
                        policies elaborate on the rights of individuals as witnesses and suspects
                        and provide guidance and direction to agents. For example, NCIS policies
                        emphasize that both military and civilian suspects must be informed that
                        they have a right to remain silent and to consult with an attorney and that
                        any statement made may be used against them.2 In addition, NCIS policies
                        address an individual’s right to have counsel present and to terminate the
                        interview at any time.

                        Under 10 U.S.C. 1585 and DOD Directive 5210.56, civilian officers and DOD
                        employees may carry firearms while on assigned investigative duties. NCIS
                        and DCIS policies authorize agents, unless otherwise prohibited, to carry
                        firearms when conducting criminal investigations. FBI policies also require
                        agents to be armed when on official duty.

                        NCIS, DCIS,and FBI policies do not specifically prohibit carrying firearms
                        during interviews. NCIS agents told us that they usually carry weapons
                        during interviews because of the organization’s policy requiring that
                        firearms be carried when conducting criminal investigations. However,
                        NCIS policy states that agents should avoid any unnecessary reference to
                        the fact that they are carrying a firearm. In March 1996 correspondence to
                        all NCIS agents, NCIS Headquarters noted that references to the carrying of a
                        firearm include not only verbal, but also physical references, including
                        display of the firearm. DCIS and FBI policies also prohibit the careless
                        display of firearms in public. NCIS policy states that, unless unusual
                        conditions prevail, an agent should not be armed during an interrogation
                        and that the presence of two agents is preferable.

                        NCIS fraud agents told us that, unlike witness interviews, which are
                        typically held at a home or place of employment, formal interrogations of

                        2
                         Article 31 of the Uniformed Code of Military Justice (10 U.S.C. 831) requires that, before any
                        questioning, a warning be given to military personnel suspected of an offense. According to Miranda v.
                        Arizona, 384 U.S. 436 (1966), such warnings must be given to civilian personnel only when they are in
                        custody or when various other conditions exist, such as probable cause to arrest the individual.



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                            suspects in general crime cases are usually held in a controlled
                            environment in an NCIS field office or a custodial environment, such as a
                            jail. Procurement fraud investigations are usually very long, the target of
                            the investigation is known early in the investigation and has normally
                            obtained legal counsel, and an Assistant U.S. Attorney communicates
                            directly with the suspect’s counsel. Interrogations in procurement fraud
                            cases are rare due to the nature of the investigation.

                            NCIS, DCIS,
                                      and FBI policies also address agent ethics, conduct, and
                            demeanor during interviews. For example, NCIS policy states that
                            interviews should be conducted in a business-like manner. DCIS policy
                            likewise notes that, when conducting an interview, the agent should
                            maintain a professional demeanor at all times and protect the rights of
                            persons involved in a case, as well as protect himself or herself from
                            allegations of misconduct. The FBI has similar policies regarding agent
                            conduct and demeanor during interviews.


                            NCIS requires an investigation of allegations of agent misconduct. Between
Controls Are in Place       January 1989 and July 1996, the NCIS Office of Inspections investigated 304
to Deter Inappropriate      allegations against agents. However, only 10 cases involved agent conduct
NCIS Agent Behavior         during the interview process, and none involved cases of procurement
                            fraud. Corrective actions, ranging from required counseling to job
                            termination, were taken against NCIS agents in the six cases that were
                            substantiated.

                            DOD  and NCIS have also established controls to protect individual rights and
                            act as deterrents to inappropriate agent conduct during interviews. These
                            controls include basic and continued agent training; a field office
                            inspection program; and DOD Inspector General oversight of NCIS
                            investigations, including alleged misconduct by agents. The judicial review
                            inherent in the legal process also acts as a deterrent to inappropriate agent
                            behavior.


Entry-Level and             NCIS agents receive considerable training on interview techniques and
Subsequent Agent Training   appropriate interview behavior. At the basic agent course given at the
                            Federal Law Enforcement Training Center, NCIS agents receive 18 hours of
                            instruction concerning interviewing techniques. During their first
                            24 months with the agency, agents are exposed to a wide range of general
                            crime investigations as they work with and are evaluated by more




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                     experienced agents. After the first 24-month period, selected agents are
                     given the opportunity to specialize in procurement fraud investigations.

                     Additional procurement fraud-specific training, both internal and external,
                     and additional interview training is given throughout an agent’s career.
                     The internal and external training is supplemented by correspondence
                     issued periodically to agents on various subjects, including interviewing
                     techniques, updates on policy or procedural changes as a result of court
                     cases, or lessons learned from completed investigations. The 23 dedicated
                     fraud agents we interviewed at NCIS field offices in Los Angeles and
                     Washington, D.C., had been with NCIS for an average of 12 years and had
                     worked in the fraud area for an average of 6-1/2 years.


Oversight Controls   NCIS  conducts regular operational inspections of headquarters and field
                     locations. Two objectives of the inspections are to assess compliance with
                     established policies and procedures and evaluate anomalies that prevent
                     or inhibit compliance. NCIS guidelines require that these inspections
                     include interviews with all agents and supervisors and a review of all
                     ongoing case files and correspondence. In addition, inspections may
                     include interviews with selected Assistant U.S. Attorneys, military
                     prosecutors, and managers and agents of other federal criminal
                     investigative agencies with whom NCIS agents work. Within 45 days of
                     receipt of the inspection report, the special agent-in-charge of the field
                     location is to report on actions taken, in progress, or proposed to correct
                     all recommendations made during the inspection. Between January 1992
                     and December 1996, NCIS conducted 45 of these inspections. Our review of
                     inspection reports for all 11 inspections conducted during the 3-year
                     period ending December 1996, found no indications of problems with
                     agent conduct regarding interviews.

                     The Inspector General Act of 1978 gives the DOD Inspector General the
                     responsibility for oversight of investigations performed by the military
                     criminal investigative organizations, including NCIS. During the last 4 years,
                     the DOD Inspector General completed oversight reviews of 29 NCIS cases
                     involving allegations of misconduct against 11 NCIS agents. The Inspector
                     General determined that none of these allegations were substantiated. In
                     April 1996, the Secretary of Defense requested that the DOD Inspector
                     General look into allegations of NCIS agent misconduct during a 4-year
                     procurement fraud investigation that ended in acquittal of the two




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                        defendants in early 1995.3 At the time of our review, the inquiry into these
                        allegations had not been completed.


Judicial Review         U.S. Attorneys and other prosecuting authorities rely on the results of NCIS
                        investigations to be upheld in the courts. Under rights afforded under the
                        fifth amendment to the U.S. Constitution and Article 31 of the Uniform
                        Code of Military Justice, evidence acquired in violation of the rights of the
                        accused can be inadmissible. Defendants and their attorneys have the right
                        to petition the courts to suppress or exclude any evidence not legally
                        obtained. In addition, civilian witnesses and suspects can bring civil suits
                        against agents if they believe their rights have been violated or laws have
                        been broken.

                        According to the Navy’s General Counsel, once a case is accepted for
                        prosecution in federal court, the Assistant U.S. Attorney assumes
                        responsibility for the investigation and determines the need for further
                        investigation, the witnesses who will be interviewed, and the timetable for
                        referring the case to the grand jury for indictment. Thus, the Assistant U.S.
                        Attorney closely monitors the information obtained for its admissibility.
                        We interviewed nine Assistant U.S. Attorneys, all of whom had many years
                        of experience in working with NCIS agents. They characterized the NCIS
                        agents as professional and could not recall any instances in which
                        evidence was suppressed or cases were negatively impacted as a result of
                        misconduct by NCIS agents during interviews. Some of the attorneys said
                        they had attended interviews with NCIS fraud agents and observed nothing
                        that was out of line.


                        NCIS, DCIS,and FBI policies permit audio or video recordings of witness or
Little Support Exists   suspect interviews in significant or controversial cases. However, little
for Routine Recording   support exists for routine taping of interviews, except in particular kinds
of Interviews           of cases. In fiscal year 1996, NCIS agents videotaped 56 interviews and
                        23 interrogations, 51 (or 65 percent) of which involved child abuse cases.
                        Most of the remaining videotapings involved cases of assaults, homicides,
                        and rapes. NCIS fraud agents said that they audiotape very few interviews.

                        Neither DOD nor the Department of Justice favor routinely audio- or
                        videotaping interviews. Both agencies believe that such a practice would
                        not improve the quality of investigations or court proceedings and that the
                        resources necessary to institute such a practice could be better used

                        3
                         United States of America v. Ralph Bernard and William Ayers, CR No. F-93-5100-REC.



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elsewhere. In its 1995 report, DOD’s advisory board recognized that routine
videotaping of interviews is a topic of debate within the law enforcement
community. However, the board concluded that videotaping was
unnecessary in all cases since its study found no widespread abuse of
subjects’ rights, but it might be advisable under some circumstances.

The Navy’s General Counsel, NCIS agents, and the Assistant U.S. Attorneys
we spoke with expressed concern regarding the routine recording of
interviews. They consider routine recording to be unnecessary because
the courts do not require it; the practice would take time better used for
more productive activities; and, given the large volume of cases, such
recordings would be cost-prohibitive and add little value to the process.
The Assistant U.S. Attorneys stressed that grand jury hearings and court
proceedings are the most appropriate places to obtain testimonial
evidence, since witnesses are under oath.

NCIS agents and the Assistant U.S. Attorneys we spoke with favored the
current NCIS policy of interviews being taped only when a specific reason
exists for doing so. The attorneys favored recording interviews of small
children in child abuse cases to preclude multiple interviews and possibly
the need for the children to appear in court. The agents and attorneys also
favored recording witnesses who were likely to be unavailable during
court proceedings and those that might be expected to change their story.

Officials told us that an NCIS pilot test of videotaping all interviews in the
early 1970s did not support routine use because (1) the agents found that
they were devoting disproportionate time and energy to the care of
equipment rather than gathering facts; (2) the number and breadth of
interviews declined, as did the overall quality of investigations; and
(3) investigators’ productivity decreased due to their inability to conduct a
sufficient number of in-depth interviews.

NCIS had not computed the additional cost of taping all interviews.
However, the Navy’s General Counsel noted that the expense of
equipment, tapes, transcription, and duplication would be extremely high
and could only be justified if no safeguards were already built into the
legal system. As an example of the potential transcription cost that could
be incurred, we were told that, in one case that was recorded, the
interview lasted about 3 hours, filled 4 microcassettes, and ended up being
127 single-spaced typed pages. Information provided by the NCIS Los
Angeles field office, one of the larger offices for procurement fraud cases,
showed that about 7,600 interviews had been completed for the 117 cases



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assigned as of January 1997, which translates to an average of about
65 interviews per case. According to officials of the NCIS Washington, D.C.,
field office, 16 major procurement fraud cases that were essentially
completed and awaiting some type of disposition had required
628 interviews—an average of about 39 interviews per case. NCIS closed
533 procurement fraud cases in fiscal year 1995 and 534 in fiscal year 1996.

A 1990 study commissioned by the Department of Justice sought to
determine the use of audio- and videotaping of interrogations by police
and sheriff departments nationwide.4 The study concluded that
videotaping was a useful tool and that one-third of the departments
serving populations of 50,000 or more videotaped suspect interrogations
and confessions in cases involving violent crime. The benefits claimed by
the departments that taped interrogations and confessions included
(1) better interrogations because agents prepared more extensively
beforehand, (2) easier establishment of guilt or innocence by prosecutors,
and (3) increased protection of subjects’ rights against police misconduct.
Local prosecutors tended to favor videotaping, but defense attorneys had
mixed feelings.

NCIShas no written policy that specifically addresses whether recordings
or written transcriptions of interviews should be made available on
demand to the subject or witness. However, NCIS, DCIS, and FBI policies
regarding witness statements and confessions do not prohibit copies from
being given to the individual making the statement. Also, a 1993 NCIS
memorandum said that all witness statements must be provided to the
defense counsel and that quotes from a witness are to be considered
witness statements.

The Assistant U.S. Attorneys we spoke with and NCIS officials believe that
written transcripts of audio or video recordings, especially those taken
during the early stages of an investigation, would not necessarily reflect all
the known facts and might be misleading and subject to inappropriate use.
Currently, interview writeups are not provided to witnesses or suspects
for their review, since they are considered a summary of the interview
results from the agent’s perspective. According to the Navy’s General
Counsel, much of the information in interview writeups is likely to be
irrelevant to the case after the issues are narrowed. This official also said
that the potential increase in the accuracy of individual interviews would



4
National Institute of Justice, Videotaping Interrogations and Confessions, Research in Brief,
March 1993.



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                     not contribute as much to the total accuracy of an investigation as
                     verifying or disproving the information provided in initial interviews.


                     DOD and the Department of Justice reviewed a draft of this report. The
Agency Comments      Department of Justice provided informal comments, which we
and Our Evaluation   incorporated as appropriate. DOD concurred with our findings.


                     We interviewed officials responsible for fraud investigations at NCIS, DCIS,
Scope and            and FBI headquarters to identify policies and procedures relating to
Methodology          interviewing suspects and witnesses. We focused on the policies and
                     procedures concerning agent conduct and demeanor, the carrying and
                     display of weapons during interviews, and use of audio- and videotaping.
                     To document actual NCIS interview practices, we interviewed fraud case
                     supervisors and agents at the two NCIS field offices responsible for the
                     highest number of closed procurement fraud investigations in fiscal
                     years 1995 and 1996—Los Angeles and Washington, D.C.

                     To determine whether NCIS policies are in line with generally accepted
                     federal law enforcement standards, we compared NCIS interview policies,
                     especially with regard to agent conduct and demeanor and the carrying
                     and display of weapons, with those of DCIS and FBI—two of the larger
                     federal law enforcement agencies involved in procurement fraud
                     investigations. We also reviewed the Federal Law Enforcement Training
                     Center’s and NCIS internal training curriculum on interviews. In addition,
                     we reviewed agent training records and discussed interview training with
                     instructors at the Federal Law Enforcement Training Center and NCIS fraud
                     supervisors and agents.

                     To address agent adherence to guidance and identify controls in place to
                     deter inappropriate agent conduct and demeanor during interviews, we
                     interviewed NCIS headquarters officials and the Navy’s General Counsel.
                     Through discussions and document reviews, we compared these controls
                     with those of DCIS and FBI. We reviewed cases of alleged agent misconduct
                     investigated internally by NCIS’ Office of Inspections and externally by the
                     DOD Inspector General. We also reviewed and documented the results of
                     the 11 operational inspections of NCIS field offices conducted since
                     January 1994. In addition, we reviewed summaries of all NCIS procurement
                     fraud cases closed during fiscal years 1995 and 1996.




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Regarding oversight of NCIS, we interviewed DOD Inspector General
officials responsible for the oversight of NCIS investigative activities and
examined cases of alleged NCIS agent misconduct that received oversight
by the DOD Inspector General. We also reviewed documents regarding
Navy policies and interviewed the Navy’s General Counsel and the Navy’s
Principal Deputy General Counsel. The Assistant U.S. Attorneys we spoke
with provided us with insight regarding the adequacy of policies and laws
dealing with subject and witness interviews and the performance of NCIS
agent interviewing practices, especially with regard to impact on the
prosecution of procurement fraud cases.

We discussed with NCIS and DCIS managers, NCIS agents, and Assistant U.S.
Attorneys, the use of audio and video equipment to tape interviews and the
desirability and feasibility of providing the transcripts to witnesses and
subjects. We obtained the official positions of the Department of Justice
and NCIS regarding these issues. We identified two studies that addressed
using audio- and videotaping for recording interviews and discussed these
issues with the studies’ authors. We also discussed these issues with
homicide detectives from one city police department that uses video
equipment in interrogations. In addition, we discussed with appropriate
DOD and Department of Justice officials any legal and practical
ramifications of interviews being taped and transcriptions being provided
to witnesses and suspects.

We performed our work from July 1996 to March 1997 in accordance with
generally accepted government auditing standards.


We are sending copies of this report to other interested congressional
committees; the Secretaries of Defense and the Navy; the General Counsel
of the Navy; the Director of the Naval Criminal Investigative Service; and
the Attorney General. Copies will also be made available to others on
request.




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Please contact me at (202) 512-5140 if you or your staff have any questions
concerning this report. Major contributors to this report are William E.
Beusse, Hugh E. Brady, Kenneth Feng, Mark Speight, and Harry Taylor.




Mark E. Gebicke
Director, Military Operations and
  Capabilities Issues




Page 12                      GAO/NSIAD-97-117 Naval Criminal Investigative Service
Page 13   GAO/NSIAD-97-117 Naval Criminal Investigative Service
Appendix I

NCIS, DCIS, and FBI Interview and
Interrogation Policies


Policy area                           NCIS                               DCIS                                FBI
Carrying firearms while on assigned   Agents are required to carry       Agents must carry firearms          Agents must be armed when
investigative duties.                 firearms while on assigned         when conducting criminal            on official duty, unless good
                                      investigative duties.              investigations, except where        judgment dictates otherwise.
                                                                         prohibited or when carrying a       They are authorized to be
                                                                         firearm is inappropriate.           armed anytime.
Displaying weapons during an          Any unnecessary reference to       Area is not specifically            Area is not specifically
interview or interrogation.           the fact that an agent has a       addressed, but unnecessary          addressed, but unnecessary
                                      firearm on his or her person       display of firearms, which may      display of weapons in public is
                                      should be avoided. An agent        heighten the sensitivity of         prohibited. Good judgment
                                      should not be armed during an      non-law enforcement                 must be exercised in all
                                      interrogation unless unusual       personnel, is prohibited. In        situations.
                                      conditions prevail. It is better   addition, careless display of
                                      to have two agents present         firearms in public is prohibited.
                                      than to be armed. Normally,
                                      agents may be armed during
                                      interviews because the policy
                                      requiring them to be armed
                                      while on investigative duties
                                      prevails.
Ethics, conduct, and demeanor of
agents.

(1) Warning of individual rights      Military suspects must not be      In addition to the obligation to    In addition to the obligation to
                                      interrogated without having        give the suspect the required       give the suspect the required
                                      first been given the prescribed    warnings, agents are required       warnings, the policies state
                                      warning. For civilian suspects,    to be familiar with civil and       that the suspect must be
                                      Miranda warnings are               criminal laws and the Uniform       advised of the names and
                                      applicable in custodial            Code of Military Justice so they    official identities of the
                                      situations, and informing          can recognize an incriminating      interviewing agents and the
                                      individuals of their right to      statement.                          nature of the inquiry. It is
                                      terminate the interview at any                                         desirable that the suspects
                                      time is required.                                                      acknowledgement of the
                                                                                                             warnings be obtained in
                                                                                                             writing.
(2) Making promises and threats       Agents do not have the             Agents must refrain from            No attempt is to be made to
                                      authority to make any promises     making or implying promises         obtain a statement by force,
                                      or suggestions of leniency or      of benefits or rewards or           threats, or promises. Whether
                                      more severe action to induce a     threats of punishments to           a suspect will cooperate is left
                                      suspect to make a statement.       unlawfully influence the            entirely to the individual. The
                                                                         suspect.                            policies take into account that
                                                                                                             the court will decide whether
                                                                                                             the interrogation practices
                                                                                                             overpowered the accused’s
                                                                                                             ability of self-determination.

                                                                                                                                  (continued)




                                             Page 14                               GAO/NSIAD-97-117 Naval Criminal Investigative Service
                                            Appendix I
                                            NCIS, DCIS, and FBI Interview and
                                            Interrogation Policies




Policy area                          NCIS                               DCIS                             FBI
(3) Lying or deceit by agent         Although tricks or other tactics   Playing one suspect against      The presence of trickery, ruse,
                                     may not be used to prevent a       another is an allowable          or deception will not
                                     suspect from exercising            interrogation technique.         necessarily make a statement
                                     constitutional rights, once a      However, agents must ensure      involuntary. The courts
                                     suspect makes a valid waiver       that information developed       consider a number of factors in
                                     of rights, deceptions are          conforms to rules regarding      making this determination,
                                     allowable as long as they are      admissibility of evidence and    including whether the
                                     not used to obtain an untrue       that the rights of persons       statement resulted from a free
                                     confession.                        involved in a case are           and unconstrained choice or
                                                                        protected.                       from interrogation practices
                                                                                                         that overpowered the
                                                                                                         individual’s ability of
                                                                                                         self-determination.
(4) Professional demeanor            Interrogations should be           Agents should be friendly and    Policies prohibit any tactics
                                     conducted in a business-like       business-like and maintain a     that may be considered
                                     and humane manner. Legal           professional demeanor at all     coercive by courts, stressing
                                     restrictions are based on the      times. Agents should also be     that tactics that overpower a
                                     premise that a person will         receptive and sympathetic.       suspect’s ability of
                                     make false statements to stop                                       self-determination should not
                                     any physical or mental                                              be used.
                                     discomfort.
Audio and video recording of         Recommended for interviews         Recommended for compelling       Authorized on a limited,
interrogations and interviews        considered to be potentially       situations with approval from    selective basis with approval
                                     significant or controversial but   the interviewee, the head of     of the special agent-in-charge
                                     only with the knowledge and        the DCIS field office, and       and consent of the interviewee.
                                     concurrence of the interviewee.    prosecutor.                      In addition, recording
                                                                                                         equipment must be in plain
                                                                                                         view of the interviewee, tapes
                                                                                                         must not be edited or altered,
                                                                                                         and the chain of custody must
                                                                                                         be ensured.
Providing copies of witness          No policy.                         When the individual making a     Agents should not volunteer to
statement or transcriptions to                                          statement asks for a copy, one   furnish a copy of a confession
witnesses or defense attorneys.                                         will be provided. However,       or signed or unsigned
                                                                        prior approval for doing so      statement to the subjects or
                                                                        must be obtained from the        their attorneys. However, if the
                                                                        cognizant U.S. Attorney or       confession or statement is
                                                                        military Staff Judge Advocate,   requested and certain
                                                                        as appropriate.                  conditions are met, it should
                                                                                                         be provided.
Providing copies of video or audio   No policy. A determination is No policy. A determination is No policy. A determination is
recordings to suspects, witnesses,   made on a case-by-case basis made on a case-by-case basis made on a case-by-case basis
or defense attorneys.                by the U.S. Attorney.         by the U.S. Attorney.         by the U.S. Attorney.




(703162)                                    Page 15                              GAO/NSIAD-97-117 Naval Criminal Investigative Service
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