As a former federal prosecutor, I noticed a renewed discussion of the important question of whether witness interviews should be recorded (either audio or video). I have always found this issue to be interesting and have welcomed discussion of the pros and cons of recording witness interviews.

In this era of focus on prosecutorial misconduct, the issue has taken on greater importance. For example, in response to defense bar and judicial complaints concerning law enforcement and prosecutor conduct, FBI agents are regularly recording interviews of witnesses. This is a significant change in FBI policy and practice. In this CSI-era of criminal investigations and prosecutions, juries (and judges) expect FBI agents to record interviews, especially when interviewing important witnesses and potential targets. If an FBI agent fails to record such an interview, defense counsel use such a failure to raise doubts concerning the integrity of the FBI’s investigation.

A company’s internal investigation practice on recording interviews has to be examined based on pros and cons.

On the positive side, witness recordings are consistent with a practice of transparency, meaning that the company and its investigators have nothing to hide and rely on open investigative practices to ensure organizational justice. To foster a culture of organizational justice, a company may determine that the fact that its investigators record interviews is an important check against potential abuses by corporate investigators against employees.

A large number of corporate internal investigations involve employment issues, a smaller number involve conflict of interest, fraud or theft claims, and an even smaller (i.e. occasional) involve serious misconduct issues that could result in a Justice Department investigation and prosecution of the company and potentially individual employees. Given this fact, the positive upside of such a blanket policy of recording witness interviews will usually involve civil employment claims and a rare criminal prosecution of an individual for fraud or theft. In most economic crime cases, the offending individual is terminated from the company and no litigation occurs.

On the con side, against recording witness interviews, there are several significant issues to consider.

First, if a company decides to record all witness interviews, it has to make sure it records every witness interview. In serious cases, a company could record senior executives and other important leaders who may have only a small role to play in the matters being investigated. In some cases, such interviews may become potential evidence in unrelated matters, such as shareholder suits or collateral claims against such executives. However, if a company adopts a recording policy it has to apply the policy across-the-board. A company should refrain from creating exceptions that excuse senior managers and executives from such a policy because such actions may feed employee concerns of disparate treatment between senior executives and employees.

Second, a company’s decision to record its internal investigation interviews eliminates a potential strategic benefit. When conducting an interview, an investigator may rely on intuitive judgments of credibility based on a witness’ mannerisms, body language and quirks. An investigator may exercise his or her professional judgment based on years of interviewing witnesses either as a law enforcement officer and/or corporate investigator to make important credibility judgments. The investigator’s credibility judgment will be set forth in an investigative memo recounting the interview and the basis for the investigator’s credibility conclusion.

By recording witness interviews, the company opens itself to defense challenges against such credibility determinations. As a result, the company may not be able to rely on credibility determinations, some of which may be critical to resolving conflicting evidence. A company has to think long and hard before it decides to foreclose this strategic tool.

Based on my discussion, it is clear there is no easy answer to this important question. A company should consider its risks, its case profile, and the importance of investigative transparency to its corporate culture when weighing the pros and cons of recording witness interviews.