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Naval Criminal Investigative Service: Fraud Interview Policies Similar to Other Federal Law Enforcement Agencies (Letter Report, 04/07/97, GAO/NSIAD-97-117).

Pursuant to a legislative requirement, GAO reviewed the Naval Criminal
and Investigative Service's (NCIS) policies and practices regarding
agent interviews of suspects and witnesses during procurement fraud
investigations, focusing on: (1) NCIS's 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.

GAO noted that: (1) according to federal law enforcement experts, NCIS
interview policies are in accordance with generally accepted federal law
enforcement standards and applicable laws; (2) specifically, NCIS
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; (3) NCIS
has established controls to deter, detect, and deal with agent
misconduct; (4) NCIS agents are trained in interview policies at their
initial training at the Federal Law Enforcement Training Center and
through in-house and contractor training; (5) other controls include
periodic inspections of NCIS field offices, internal investigations of
alleged agent misconduct, oversight of cases and allegations of agent
misconduct by the Department of Defense (DOD) Inspector General, and the
involvement of the U.S. Attorney's offices in grand jury investigations
and prosecutions; (6) 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; (7) the DOD Inspector General and NCIS
could identify only six cases since January 1989 in which misconduct was
substantiated, and none of those cases involved procurement fraud
investigations; (8) NCIS policies do not prohibit audio- or videotaping
of interviews or distributing the written or taped results to the
interviewee; (9) the NCIS does not routinely tape interviews; (10)
officials from NCIS, 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; (11) NCIS
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; (12) DOD and
Department of Justice officials noted that routine audio- or videotaping
would not improve the quality of the investigation or court proceedings;
and (13) the DOD advisory board agreed that the routine taping of
interviews was unnecessary, given the lack of evidence supporting a
widespread abuse of subjects' rights by agents from military criminal
investigative organizations.

--------------------------- Indexing Terms -----------------------------

 REPORTNUM:  NSIAD-97-117
     TITLE:  Naval Criminal Investigative Service: Fraud Interview 
             Policies Similar to Other Federal Law Enforcement
             Agencies
      DATE:  04/07/97
   SUBJECT:  Navy procurement
             Investigations by federal agencies
             Military personnel
             Law enforcement agencies
             Video tape recording
             Fraud
             Human resources training
             Constitutional rights
             Firearms
             Ethical conduct

             
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Cover
================================================================ COVER


Report to Congressional Committees

April 1997

NAVAL CRIMINAL INVESTIGATIVE
SERVICE - FRAUD INTERVIEW POLICIES
SIMILAR TO OTHER FEDERAL LAW
ENFORCEMENT AGENCIES

GAO/NSIAD-97-117

Naval Criminal Investigative Service

(703162)


Abbreviations
=============================================================== ABBREV

  DCIS - Defense Criminal Investigative Service
  DOD - Department of Defense
  FBI - Federal Bureau of Investigation
  NCIS - Naval Criminal Investigative Service

Letter
=============================================================== LETTER


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. 


   BACKGROUND
------------------------------------------------------------ Letter :1

Under authority of the Inspector General Act of 1978, the Defense
Criminal 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 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. 


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


   RESULTS IN BRIEF
------------------------------------------------------------ Letter :2

According to federal law enforcement experts, Naval Criminal
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 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. 


   NCIS INTERVIEW POLICIES ARE
   CONSISTENT WITH THOSE OF OTHER
   FEDERAL LAW ENFORCEMENT
   AGENCIES
------------------------------------------------------------ Letter :3

NCIS interview policies are consistent with those of both DCIS and
FBI.  Generally, policies of all three agencies seek to ensure that
interviews of witnesses and suspects are done in a professional
manner without the use of duress, force, and physical or mental
abuse.  More specifically, these policies prohibit agents from making
promises or threats to gain cooperation; using deceit, which courts
could view as overcoming an interviewee's free will; or
indiscriminately displaying weapons.  A detailed comparison of the
policies is in appendix I. 

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 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. 


--------------------
\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. 


   CONTROLS ARE IN PLACE TO DETER
   INAPPROPRIATE NCIS AGENT
   BEHAVIOR
------------------------------------------------------------ Letter :4

NCIS requires an investigation of allegations of agent misconduct. 
Between January 1989 and July 1996, the NCIS Office of Inspections
investigated 304 allegations against agents.  However, only 10 cases
involved agent conduct 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 SUBSEQUENT
      AGENT TRAINING
---------------------------------------------------------- Letter :4.1

NCIS agents receive considerable training on interview techniques and
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 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
---------------------------------------------------------- Letter :4.2

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
defendants in early 1995.\3

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


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


      JUDICIAL REVIEW
---------------------------------------------------------- Letter :4.3

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. 


   LITTLE SUPPORT EXISTS FOR
   ROUTINE RECORDING OF INTERVIEWS
------------------------------------------------------------ Letter :5

NCIS, DCIS, and FBI policies permit audio or video recordings of
witness or suspect interviews in significant or controversial cases. 
However, little support exists for routine taping of interviews,
except in particular kinds 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 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 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. 

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


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


   AGENCY COMMENTS AND OUR
   EVALUATION
------------------------------------------------------------ Letter :6

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


   SCOPE AND METHODOLOGY
------------------------------------------------------------ Letter :7

We interviewed officials responsible for fraud investigations at
NCIS, DCIS, and FBI headquarters to identify policies and procedures
relating to 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. 

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. 


---------------------------------------------------------- Letter :7.1

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. 

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


NCIS, DCIS, AND FBI INTERVIEW AND
INTERROGATION POLICIES
=========================================================== Appendix I

Policy area     NCIS                  DCIS                  FBI
--------------  --------------------  --------------------  --------------------
Carrying        Agents are required   Agents must carry     Agents must be armed
firearms while  to carry firearms     firearms when         when on official
on assigned     while on assigned     conducting criminal   duty, unless good
investigative   investigative         investigations,       judgment dictates
duties.         duties.               except where          otherwise. They are
                                      prohibited or when    authorized to be
                                      carrying a firearm    armed anytime.
                                      is inappropriate.

Displaying      Any unnecessary       Area is not           Area is not
weapons during  reference to the      specifically          specifically
an interview    fact that an agent    addressed, but        addressed, but
or              has a firearm on his  unnecessary display   unnecessary display
interrogation.  or her person should  of firearms, which    of weapons in public
                be avoided. An agent  may heighten the      is prohibited. Good
                should not be armed   sensitivity of non-   judgment must be
                during an             law enforcement       exercised in all
                interrogation unless  personnel, is         situations.
                unusual conditions    prohibited. In
                prevail. It is        addition, careless
                better to have two    display of firearms
                agents present than   in public is
                to be armed.          prohibited.
                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.         Military suspects     In addition to the    In addition to the
                must not be           obligation to give    obligation to give
(1) Warning of  interrogated without  the suspect the       the suspect the
individual      having first been     required warnings,    required warnings,
rights          given the prescribed  agents are required   the policies state
                warning. For          to be familiar with   that the suspect
                civilian suspects,    civil and criminal    must be advised of
                Miranda warnings are  laws and the Uniform  the names and
                applicable in         Code of Military      official identities
                custodial             Justice so they can   of the interviewing
                situations, and       recognize an          agents and the
                informing             incriminating         nature of the
                individuals of their  statement.            inquiry. It is
                right to terminate                          desirable that the
                the interview at any                        suspects
                time is required.                           acknowledgement of
                                                            the warnings be
                                                            obtained in writing.

(2) Making      Agents do not have    Agents must refrain   No attempt is to be
promises and    the authority to      from making or        made to obtain a
threats         make any promises or  implying promises of  statement by force,
                suggestions of        benefits or rewards   threats, or
                leniency or more      or threats of         promises. Whether a
                severe action to      punishments to        suspect will
                induce a suspect to   unlawfully influence  cooperate is left
                make a statement.     the suspect.          entirely to the
                                                            individual. The
                                                            policies take into
                                                            account that the
                                                            court will decide
                                                            whether the
                                                            interrogation
                                                            practices
                                                            overpowered the
                                                            accused's ability of
                                                            self-
                                                            determination.


(3) Lying or    Although tricks or    Playing one suspect   The presence of
deceit by       other tactics may     against another is    trickery, ruse, or
agent           not be used to        an allowable          deception will not
                prevent a suspect     interrogation         necessarily make a
                from exercising       technique. However,   statement
                constitutional        agents must ensure    involuntary. The
                rights, once a        that information      courts consider a
                suspect makes a       developed conforms    number of factors in
                valid waiver of       to rules regarding    making this
                rights, deceptions    admissibility of      determination,
                are allowable as      evidence and that     including whether
                long as they are not  the rights of         the statement
                used to obtain an     persons involved in   resulted from a free
                untrue confession.    a case are            and unconstrained
                                      protected.            choice or from
                                                            interrogation
                                                            practices that
                                                            overpowered the
                                                            individual's ability
                                                            of self-
                                                            determination.

(4)             Interrogations        Agents should be      Policies prohibit
Professional    should be conducted   friendly and          any tactics that may
demeanor        in a business-like    business-like and     be considered
                and humane manner.    maintain a            coercive by courts,
                Legal restrictions    professional          stressing that
                are based on the      demeanor at all       tactics that
                premise that a        times. Agents should  overpower a
                person will make      also be receptive     suspect's ability of
                false statements to   and sympathetic.      self-determination
                stop any physical or                        should not be used.
                mental discomfort.

Audio and       Recommended for       Recommended for       Authorized on a
video           interviews            compelling            limited, selective
recording of    considered to be      situations with       basis with approval
interrogations  potentially           approval from the     of the special
and interviews  significant or        interviewee, the      agent-in-charge and
                controversial but     head of the DCIS      consent of the
                only with the         field office, and     interviewee. In
                knowledge and         prosecutor.           addition, recording
                concurrence of the                          equipment must be in
                interviewee.                                plain view of the
                                                            interviewee, tapes
                                                            must not be edited
                                                            or altered, and the
                                                            chain of custody
                                                            must be ensured.

Providing       No policy.            When the individual   Agents should not
copies of                             making a statement    volunteer to furnish
witness                               asks for a copy, one  a copy of a
statement or                          will be provided.     confession or signed
transcriptions                        However, prior        or unsigned
to witnesses                          approval for doing    statement to the
or defense                            so must be obtained   subjects or their
attorneys.                            from the cognizant    attorneys. However,
                                      U.S. Attorney or      if the confession or
                                      military Staff Judge  statement is
                                      Advocate, as          requested and
                                      appropriate.          certain conditions
                                                            are met, it should
                                                            be provided.

Providing       No policy. A          No policy. A          No policy. A
copies of       determination is      determination is      determination is
video or audio  made on a case-by-    made on a case-by-    made on a case-by-
recordings to   case basis by the     case basis by the     case basis by the
suspects,       U.S. Attorney.        U.S. Attorney.        U.S. Attorney.
witnesses, or
defense
attorneys.
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