Anyone who has attended a law school lecture in the last decade knows this sight: row after row of students typing on laptops, each taking down a nearly verbatim transcript. At the same time, anyone who has attended a witness interview—a proffer—in a federal criminal investigation in the last decade knows this sight: a group of Assistant U.S. Attorneys and law enforcement agents, all asking questions, while a single agent takes down occasional notes by hand on a yellow pad. Student notes can impact grades; agent notes can put people in jail. Yet the typed student notes will almost invariably be more complete than the handwritten agent notes. Why are law students taking better notes than federal agents?

The government is not legally required to take notes of witness interviews at all. Still, the Department of Justice’sU.S. Attorney’s Manual instructs prosecutors that, “generally speaking, witness interviews should be memorialized by the agent.” The Manual does not specify any particular method of memorialization, however, suggesting only that prosecutors and agents “should discuss note-taking responsibilities and memorialization before the interview begins.” Whatever discussion takes place, the standard practice is well established: In interviews conducted by the FBI, for example, as the Ninth Circuit recently noted, agents generally take notes by hand, and then later “incorporate[] their handwritten notes into a more complete report of the interview on the FBI’s Interview Report Form FD-302, known colloquially as a ‘302’” (other internal quotation marks omitted).

Although there is no legal requirement that the government take notes of witness interviews, the accuracy of notes the government does take is critically important for multiple reasons. Foremost among those, the government is legally required to disclose to the defense exculpatory and impeaching information, and the government typically satisfies this burden by disclosing interview notes, interview memos (like 302s) that are based on notes, or both. In this regard, courts have found that the government can meet its disclosure obligations by turning over interview memos alone where the memos “contain[] all of the information contained in the interview notes,” and have also confirmed that where there are material differences between an agent’s notes and an interview memo, the government must turn over the notes themselves.

Beyond helping the government meet its disclosure obligations, the government’s interview notes—and the interview memos prepared based on these notes—are important in other ways as well, particularly in complex white-collar cases involving dozens of witnesses and large prosecution teams. For example, when a prosecutor or agent misses a witness interview and needs to be brought up to speed, he or she can review the interview memos and notes to learn the case. When prosecutors make charging decisions, they can rely on these memos and notes to determine the appropriate allegations. When cases are presented to the grand jury, it is not uncommon for a single agent to offer hearsay testimony—which is admissible at this stage—summarizing an investigation based on a review of interview memos and notes. When witnesses testify at hearings and trials, defense counsel can use interview memos and notes (which the government typically discloses) to conduct cross-examinations. Given these many uses, it is hard to overstate how important it is for the government’s notes to be complete and accurate.

Commentary on the government’s note-taking practices has tended to focus on two problems in particular. First, commentators have focused on the question of whether prosecutors may ever instruct an agent not to take notes at allduring a witness interview to avoid the disclosure of inconsistencies in the witness’s account. The Second Circuit raised this question almost a decade ago, but did not answer it, and it remains a topic of discussion within the white collar bar.

Second, there has been an ongoing debate over the memorialization of custodial interrogations. For many years, federal law enforcement agencies like the FBI had a policy against making audio and video recordings of custodial interviews. This policy was subject to criticism (see here, and here), and it changed in 2014, when then-Deputy Attorney General James M. Cole issued a memorandum establishing a new presumption that the FBI and other agencies would, going forward, electronically record custodial interviews. (While a step in the right direction, as the Harvard Law Review has noted, this new policy “may not be enough.”)

These discussions do not, however, focus squarely on how the government’s practice of taking notes by hand is necessarily imperfect. Research has shown that proficient typists and experienced “two-finger typists” alike type faster than they write by hand. As a result, interview notes from an agent who handwrites them will generally be less complete than if the agent took notes on a laptop computer. Given the importance of the government’s interview notes, what justification could there be for the government’s devotion to an inferior method?

It could be argued that handwritten notes are not necessarily inferior to typewritten notes. For example, a recent study showed that college students who write out their notes by hand instead of typing them on a laptop actually learn more from lectures. To explain this finding, the authors argued that because taking notes by hand is slower than typing and students cannot write down every word, students who take notes by hand are forced to process and summarize information, which helps them understand and remember what they have learned. When they type their notes, by contrast, the authors submitted, students simply transcribe lectures verbatim without thinking about the content.

This study only highlights, though, why taking notes by hand—even if this is a superior method for some students (a debatable proposition)—is not the best option for federal agents. In the classroom, the student’s goal is to learn concepts for him or herself, but in a federal criminal investigation, an agent’s interview notes are read and used by numerous other individuals, including agents, prosecutors, judges, and defense attorneys. In this context, the notes standing alone need to be sufficient to help a reader understand precisely what was said, and handwritten notes cannot fulfill this goal as well as typed notes. Further, in complex white-collar cases in particular, it can be difficult for an agent to capture the subtleties of a witness’s statements by hand. Witness interviews in such matters can involve unique industries and arcane transactions, which can make any note-taking, and especially note-taking by hand, a challenge for even the most attentive listener. The result can be interview notes that garble key points, or miss them entirely.

The government might also argue that having an agent type notes on a laptop could interfere with rapport-building between the agents and the witness. The FBI previously made this argument to defend its now-outdated policy of not recording custodial interviews. But this argument has little traction. At many witness interviews, the agent taking notes is not the one who is doing the “rapport-building” anyway, with that role falling on either another agent or a prosecutor. Having the designated note-taker use a laptop instead of a pen in these situations would not unduly interfere with the interview. Further, witnesses are often accompanied to their interviews by counsel who themselves take down near-verbatim notes on a laptop; having an agent take notes in the same manner would not be any more distracting to the witness. Further still, such distraction would be appropriate. The stakes are always high in an interview with the government, and an agent typing notes could usefully remind the witness of the importance of accuracy.

Another explanation for why the standard practice has gone largely unchallenged might be that when a witness interview is memorialized in an agent’s hand-written notes, there will necessarily be ambiguities, and those ambiguities can have benefits for both the government and the witness. For example, to the extent a witness’s story changes between the initial interview and trial it will be more difficult for defense counsel at trial to impeach the witness’s testimony with handwritten notes than with a typed record. This helps both the government as well as the witness him or herself.

On the whole, however, while these various arguments might help explain why the government’s practice of handwriting notes has persisted for so long, they do not offer a satisfying justification for that practice. The truth-seeking function of the justice system is not advanced when witness statements are preserved in a deliberately-flawed manner.

Of course, if the goal is to have a perfect record of witness interviews, then they should all be recorded and transcribed. That would be a worthwhile goal for the government to pursue. In fact, the government itself has gestured in this direction: Deputy Attorney General Cole’s memo calling for the recording of custodial statements also encouraged “agents and prosecutors to consider electronic recording in investigative or other circumstances” beyond custodial interviews. Until recording and transcription become the norm, however, the government should consider taking interview notes on a laptop computer. This method works for law students; it can work for federal agents.

From The Insider Blog:  White Collar Defense & Securities Enforcement.