Criminal Evidences And Information Department
Karola
HFSC is an independent local government corporation that provides forensic services to the Houston Police Department. Funding for the project will help facilitate the design and development of information systems to improve the collection, tracking, management, and movement of forensic evidence through the criminal justice system in Houston and Harris County
Currently, thousands of cases are backlogged because of inefficiencies related to evidence handling. The Forensic Evidence Data System Improvement Project will enhance the handling and quality of forensic evidence, improving the efficiency and efficacy of the criminal justice system for Harris County residents.
The Department of Justice permits the use of body-worn cameras (BWCs) by deputized task force officers (TFOs) on federal task forces. This policy provides the parameters for the use of BWCs by TFOs to the extent that a state or local law enforcement agency[1] requires their use by its officers during federal task force operations.
TFOs employed by a law enforcement agency that mandates the use of BWCs on federal task forces may wear and activate their recording equipment for the purpose of recording their actions during task operations[2] only during: (1) a planned attempt to serve an arrest warrant or other planned arrest; or, (2) the execution of a search warrant.[3] There are several exceptions:
[2] TFOs are authorized to wear and activate their recording equipment in accordance with this policy anywhere they are authorized to act as a police or peace officer under state, local, territorial or tribal law.
[3] For the execution of a search warrant, BWCs should not be used for searches of property lawfully in government custody or control, or a search to obtain digital or electronic records executed by a third party, such as an electronic service provider or custodian of electronic records.
The Department opposes all attempts by defense counsel to admit polygraph evidence or to have an examiner appointed by the court to conduct a polygraph test. Government attorneys should refrain from seeking the admission of favorable examinations that may have been conducted during the investigatory stage for the following reasons.
Though certain physiological reactions such as a fast heartbeat, muscle contraction, and sweaty palms are believed to be associated with deception attempts, they do not, by themselves, indicate deceit. Anger, fear, anxiety, surprise, shame, embarrassment, and resentment can also produce these same physiological reactions. S. Rep. No. 284, 100th Cong., 2d Sess. 3-5 (1988). Moreover, an individual is less likely to produce these physiological reactions if he is assured that the results of the examination will not be disclosed without his approval. Given the present theoretical and practical deficiencies of polygraphs, the government takes the position that polygraph results should not be introduced into evidence at trial. On the other hand, in respect to its use as an investigatory tool, the Department recognizes that in certain situations, as in testing the reliability of an informer, a polygraph can be of some value. Department policy therefore supports the limited use of t he polygraph during investigations. This limited use should be effectuated by using the trained examiners of the federal investigative agencies, primarily the FBI, in accordance with internal procedures formulated by the agencies. E.g., R. Ferguson, Polygraph Policy Model for Law Enforcement, FBI Law Enforcement Bulletin, pages 6-20 (June 1987). The case agent or prosecutor should make clear to the possible defendant or witness the limited purpose for which results are used and that the test results will be only one factor in making a prosecutive decision. If the subject is in custody, the test should be preceded by Miranda warnings. Subsequent admissions or confessions will then be admissible if the trial court determines that the statements were voluntary. Wyrick v. Fields, 459 U.S. 42 (1982); Keiper v. Cupp, 509 F.2d 238 (9th Cir. 1975).
Part A of this Justice Manual section provides a paragraph-by-paragraph review of 28 C.F.R. 50.10, with guidance, interpretation, and instructions for Department personnel seeking authorization for various actions governed by the Policy. Parts B-D provide additional information and guidance about Policy implementation. Part E lists common news media-related matters and circumstances and identifies whether and when mandatory consultation with the Criminal Division, at a minimum, is required.
Because application of the Policy, including consulting with the Criminal Division and obtaining all required authorizations, requires careful consideration of critical law enforcement interests and impact on the freedom of the press, the review and approval process is often time intensive. Accordingly, to ensure appropriate consideration, members of the Department should submit requests for authorization or consultation pursuant to the Policy as soon as possible before the anticipated use of the covered investigative tool or action.
Part A reviews each paragraph of 28 C.F.R. 50.10, starting first with the regulatory text (in italics) and followed by additional guidance, interpretation, or instructions (in plain text). For ease of reference, a table of contents for 28 C.F.R. 50.10 appears below.
This Policy is not intended to impose more onerous requirements on mutual legal assistance treaty (MLAT) requests than on the equivalent domestic investigative measure. Accordingly, when an MLAT request is utilized solely to request questioning on a voluntary basis, such a request should be evaluated under 28 C.F.R. 50.10(i).
Compulsory legal process covered under this Policy also includes compulsory legal process issued by members of the Department on behalf of another Executive Branch department or agency, regardless of whether the Department has initiated a corresponding civil or criminal matter.
When there is a question as to whether a member of the news media is acting within the scope of newsgathering, members of the Department must consult with the Criminal Division before using a covered investigative tool or taking a covered action. Except as otherwise provided in 28 C.F.R. 50.10(e)(2) (when there is a close or novel question), the determination whether a member of the news media is acting within the scope of newsgathering for purposes of this Policy must be approved by a Deputy Assistant Attorney General for the Criminal Division.
Members of the Department should refer all requests for determination of whether a person or entity is excluded by 28 C.F.R. 50.10(b)(3)(i) from the scope of this Policy to PSEU, which will route, as appropriate, such requests to the National Security Division. The National Security Division will provide notice of any such determination to the Criminal Division through OEO.
Members of the Department shall endeavor to use the least intrusive means possible to secure authentication of information or records that have already been published, pursuant to 28 C.F.R. 50.10(c)(1). If authentication of information or records that have already been published requires grand jury or trial testimony from a member of the news media, any subpoena or other process to compel such testimony, even if issued with the consent of the member of the news media, must be authorized by the Deputy Attorney General pursuant to 28 C.F.R. 50.10(f)(1) (seeking to compel grand jury or trial testimony).
28 C.F.R. 50.10(d)(1) permits the Department to use compulsory legal process under certain circumstances for the purposes of obtaining information from or records of a member of the news media who is not acting within the scope of newsgathering.
In civil matters, the permission granted by 28 C.F.R. 50.10(d)(1)(i) applies to a member of the news media who is a party to a civil investigation and is suspected of having committed a civil violation. In civil matters, the permission granted by 28 C.F.R. 50.10(d)(1)(i) does not allow for the issuance of compulsory legal process to a member of the news media who is a party to a civil investigation but who is not also suspected of having committed a civil violation.
Authorization obtained pursuant to 28 C.F.R. 50.10(d)(1) to apply for a warrant to search the premises or person of a member of the news media also encompasses authorization to question the target member of the news media on a voluntary basis in conjunction with the execution of the warrant.
In considering whether to recommend that a determination under 28 C.F.R. 50.10(e)(2) be referred to the Attorney General for approval, the Assistant Attorney General for the Criminal Division will consider whether the matter presents unprecedented interpretive issues or is otherwise likely to implicate weighty First Amendment concerns.
There may be times when potential newsgathering-related materials are inadvertently discovered while reviewing returns from compulsory legal process for which the government did not knowingly target a member of the news media and therefore, the process was not initially deployed for the purpose of obtaining information from or records of a member of the news media. Part C of this Justice Manual provision addresses such situations.
When a member of the Department seeks to question on a voluntary basis a member of the news media under the circumstances described in 28 C.F.R. 50.10(i)(1), or to use compulsory legal process if the member of the news media agrees to provide or consents to the provision of the requested records or information in response to the proposed process, and when no United States Attorney or Assistant Attorney General is responsible for the matter or partnering on the matter, authorization must be obtained from the closest equivalent Department official, which will typically be the head of a Department component. Members of the Department should consult with OEO to determine who that authorizing official should be.
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