By: Sara Kropf

Former FBI Director James Comey apparently wrote a memo summarizing his meeting with President Trump. The memo purportedly recounts the president’s statement saying he “hoped” that Comey would drop the investigation into the ties between his campaign and the Russians.

There’s nothing surprising about an FBI agent formalizing notes of a conversation. It’s SOP. In any white-collar criminal investigation, FBI agents’ notes of conversations with witnesses are often key evidence of a possible crime.

Let’s take a closer look at how a witness interview gets memorialized into an interview memo or, in white-collar parlance, a “302.”

The Witness Interview

An FBI agent named Amy Silver, with her partner Agent Stanley Starley , knocks on the door of the house of a witness in a criminal investigation one evening. We’ll call the witness Jack McKinley. He’s a supervisor at a pharmaceutical company, overseeing many sales reps who visit doctors. Mr. McKinley comes to the door. He’s surprised to see them. After Agent Silver identifies herself and Starley, though, Mr. McKinley agrees to answer some questions for a few minutes.

“I have nothing to hide,” he thinks. He doesn’t have a lawyer there and it’s too awkward to ask to get a notepad to take some notes himself.

They sit in his living room. Agent Silver asks questions about whether Mr. McKinley knew that anyone at his company was bribing doctors to get their Medicare business. Throughout the interview, Agent Starley takes handwritten notes of Mr. McKinley’s answers. Two hours later, after the interview, the agents thank Mr. McKinley and leave. Mr. McKinley’s not worried; he told the truth. He puts the interview behind him.

The agents’ work is not done, though. Using his handwritten notes scribbled during the two-hour long interview, Starley takes his handwritten notes and types them up into an interview memo using FBI form FD-302. He may do this the next day or a month later.

Mr. McKinley never sees the 302 until two years later when he’s confronted with it as he prepares to testify before a grand jury.

What is a 302?

FBI form FD-302 has space to list the name of the agents, the date of the interview, the name of the interviewee, the place of the interview and so forth. Then it allows the agent to draft a memo—in paragraph form—of what the witness said. It can be one page long or twenty pages long, depending on the length of the interview.

The memo section of a 302 is the key part. This is a combination of what the agent was able to write down during the interview and his recollection. It may list the questions and the answers or simply be a narrative of what the witness said.

The witness generally doesn’t see the 302 or get a chance to correct any mistakes he thinks are in it before it is finalized.

What’s the Problem?

As an associate at a big firm for many years, I wrote a lot of interview memos. It’s never a perfect process. First of all, taking handwritten notes to capture a conversation is inherently difficult. People talk faster than anyone can write. If it’s a complicated topic, such as accounting fraud dealing with complex GAAP rules, then it’s nearly impossible to be completely accurate because you are simultaneously listening to the witness, trying to understand what he is saying and summarizing it by hand.

Second, relying in part on memory to draft an interview memo is equally troubling. Memory is a funny thing and not all that reliable. If you draft the memo the next day after the interview, then your memory may be passable. But wait a week or two and you are guaranteed to get something wrong or leave out something important. Using memory is a necessary evil when it comes to interview memos given that handwritten notes are not perfect.

Third, turning notes of an interview into a coherent summary is challenging. Verbal conversations often veer from topic to topic. That’s just the nature of how we talk with each other. Witnesses meander during answers or don’t answer the question directly. They don’t understand the question or they answer a different question. There are tangents and diversions. The task is doubly onerous if the witness is deliberately evasive. Answers that made perfect sense at the time you wrote the notes turn incomprehensible when you draft the memo.

Fourth, there’s no requirement that the FBI agent write down everything the witness says or that the agent take any notes at all. There’s nothing to prevent the agent from stopping the note-taking if the witness says something helpful to the target of the investigation. Because it’s nearly impossible to obtain the handwritten notes underlying a 302 during discovery, the FBI is not concerned that anyone can prove a conflict between the notes and the final 302 anyway.

How Does the Government Use 302s?

You may think that a 302 is simply an interview memo.

It’s not. It’s much more.

302s are a powerful tool for a prosecutor. Since the witness doesn’t generally take notes during an interview, it’s the only contemporaneous document capturing what was said. Plus, it’s the “official” record of the interview. It’s on a nice, official-looking form. The agent signs it, verifying its accuracy. Very credible stuff to a jury.

The time lapse between the interview and the use of the 302 works to the government’s advantage as well. White-collar investigations take a while. When Mr. McKinley is called to testify before the grand jury a few years later, he won’t remember what he said during the interview with any real clarity. The government can use the 302 to refresh his memory, whether the memo is 100% accurate or not.

As many other commentators have noted, an aggressive prosecutor can also use a 302 to intimidate a witness into cooperating by threatening a felony charge against the witness.

Going back to our example, let’s say Mr. McKinley told the agents during his interview that his co-workers didn’t bribe any doctors for Medicare business. But the agent writes down that Mr. McKinley said that his co-workers did bribe doctors. During the prep session with the government before his grand jury testimony, he tells the prosecutors that the co-workers never bribed anyone. They whip out the 302, showing him that, two years ago, he said that they did.

Mr. McKinley is now under incredible pressure to testify consistently with what was written in the 302 by Agent Starley, even if it is not correct. If he gives testimony different from what’s written in the 302, then Mr. McKinley opens himself up to a felony charge either for lying during the grand jury testimony (perjury) or making a false statement to the agent during the original interview.

A witness who was not represented by counsel during the interview cannot effectively challenge the accuracy of the 302. It becomes a witness-said/agent-said situation. And who is the jury going to believe? Two clean-cut FBI agents who insist the 302 is an accurate summary of what the witness said, or the witness?

In other words, a witness can be effectively coerced into testifying not to the truth of what happened but the “truth” as it was captured by the handwritten notes of an FBI agent. As explained above, the witness notes may not be accurate for all sorts of innocent reasons. It also may not be accurate because an FBI agent has a strong interest in finding evidence of a crime.

The only silver lining to this whole situation is that 302s that capture exculpatory statements about the defendant must be disclosed under Brady, and the government must disclose 302s for testifying witnesses under the Jencks Act. 302s are a very effective discovery tool when they are disclosed to the defense after indictment. After a long investigation, you can finally learn what the witnesses said (or what the FBI agents heard).

This silver lining only benefits the defendant, not poor Mr. McKinley, who is still stuck between a rock and a hard place.

Why Doesn’t the FBI Record Every Interview?

You may be wondering why the FBI doesn’t simply record every interview, given all the issues I’ve described. That would fix the problem, right? No one could dispute what was asked or what the witness answered.

The reason is that the official DOJ policy is not to record witness interviews. A 2006 FBI memorandum explained that recording interviews would impede the FBI’s ability to successfully question witnesses. (Why this is absurd is a topic for another day.)

In 2014, DOJ issued guidance creating a “presumption” that the FBI would record interviews of people in federal custody.

This is only a presumption and not a requirement. Plus, the policy doesn’t cover most witnesses in white-collar cases (like our beleaguered Mr. McKinley) who are not in custody when they are questioned.

The same 2014 guidance “encourage[d] agents and prosecutors to consider electronic recording in investigative or other circumstances when the presumption does not apply.” To this day, I’ve never seen an agent record an interview so it’s safe to assume agents are not accepting the kind invitation to record the interviews.

Why would they? The system works just fine.

For the FBI.