Finally, and perhaps most importantly, Form 302 of the U.S. Federal Bureau of Investigation (“302”), the memorandum used by FBI agents to memorialize their notes taken during a witness interview, can unintentionally create a materially misguided, mistaken, incomplete and wholly unreliable evidentiary record.
Innocently characterized as an “interview memo,” the 302, with its “official” look and feel (including an agent’s sworn signature at the bottom) can become the basic building block of federal investigations and can evolve into a critical evidentiary facet of a prosecution. For example, prosecutors might use 302’s to make charging decisions and to structure grand jury testimony. Agents might use 302’s to refresh their recollection for testimony and as a basis for summarizing their evidentiary findings in grand jury proceedings. Judges might review 302’s during motion and trial proceedings. Juries might review a 302 when deliberating. The possibilities are endless.
Yet, despite playing such a prominent role in federal investigations and prosecutions, the antiquated 302 is not only created in a deliberately flawed manner, but the 302 is also replete with astoundingly obvious evidentiary defects.
‘Enforcement 40’ for 2020
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