Your Rights in a Voluntary FBI Interview.

Miranda only applies when both “custody” and “interrogation” are present. While the FBI wants to talk to you, that isn’t “interrogation” in the legal sense. And, while you are talking to them, you aren’t in custody. With neither present, the federal agent has no obligation to read you your rights, and your statement is admissible. This may seem contrary to the purpose of Miranda, but this is consistent with how courts and the federal government have both interpreted the Fifth Amendment and the Supreme Court’s decision in Miranda v. Arizona.

Does this mean that the federal agent doesn’t have to give you any warnings? Yes. But does it mean you have to give the federal agent answers? Absolutely not. Here are four key points for you to consider:

• Refusing to participate. In federal investigations, providing statements to the government is voluntary, even if you aren’t in custody. And even though you have no obligation to participate, making this decision to decline is not obstruction and does not carry any independent criminal penalty.
• Claiming the Fifth Amendment. The Fifth Amendment privilege applies whenever you face the possibility of being convicted of a crime, regardless of whether anyone warned you about the privilege. As noted above, Miranda governs the notification process, not the existence of a substantive constitutional privilege.
• No Damages for Miranda Violations. In Vega v. Tekoh (2022), the Supreme Court held that the failure to provide Miranda warnings before a custodial interrogation does not entitle a suspect to money damages under federal law.
• Admissibility at Trial. In Harris v. New York (1971), the Supreme Court held that while unwarned statements may be inadmissible as substantive evidence, they can be used to impeach a defendant’s testimony if the defendant chooses to testify.
• Consultation and/or Advice. If the FBI asks you to come in for an interview, you have the right to consult with retained counsel before making an informed decision about whether to comply.

How Do I Know Whether an FBI Interview is Custodial?

A non-custodial interview means a non-custodial interview. When you’re not in custody, you’re not under arrest. And if you’re not under arrest, no Miranda warning is necessary. Even if you are being questioned by two, three, or four federal agents, the fact that they’re questioning you doesn’t make you custodial, it only makes it a “custodial interrogation” if both elements of the test are present: custody and interrogation.

Under a longstanding Supreme Court case, Beckwith v. United States (1976), FBI agents can even question the focus of their investigation in his own home without him being “in custody.” And in Oregon v. Mathiason (1977), the Supreme Court rejected a custody finding where a police officer questioned a suspect at the station house, because the suspect came voluntarily and was told he was not under arrest.

The Court’s decision in Thompson v. Keohane (1995) provides an objective test for determining whether the FBI has placed a target of its investigation in custody, which are, the Court’s words, “all the circumstances.” Under Thompson, if a reasonable person in the target’s position would not have felt free to terminate the encounter and end his discussion with the FBI at any time, the encounter will be considered custodial.

The Supreme Court’s decision in Stansbury v. California (1994) tells us that even if an officer believes that a subject is “in custody,” it doesn’t make him custodial if he isn’t. The same goes for agents’ and attorneys’ attempts to create custody conditions during an encounter. An attorney’s presence doesn’t mean an interviewee is custodial, and an agent’s intent to obtain a confession isn’t enough, either.

But even if an encounter begins non-custodially, it can quickly turn custodial. Once an encounter turns custodial, an agent’s interrogation will not be constitutional without Miranda warnings.

Even in a non-custodial encounter, federal agents will be judged by the standard set forth in the Due Process Clause of the Constitution. Statements compelled through “coercive techniques” can be suppressed if they are determined by a court to be involuntary.

Miranda custody is a comprehensive inquiry, not a narrow one. Miranda custody is not simply a question of whether the suspect is physically restrained. Instead, Miranda custody is determined “by a case-by-case analysis in which the relevant evidence is given a weight appropriate to the circumstances at hand, and the context of the interrogation is regarded as a whole.”

Can I Refuse to Answer Questions From FBI Agents or Stay Silent during an FBI Interview?

Yes, you have the right to refuse to speak to FBI agents, but you must make this choice explicitly and you must understand the consequences of this decision. With respect to the first point: In Salinas v. Texas (2013), the Supreme Court held that silence is not an express invocation of the privilege, and prosecutors can comment on the silence at trial. When this happened in Salinas, the defendant fell silent after officers asked whether his shotgun “would match the shells recovered at the scene of the murder.” Because the defendant did not expressly invoke his Fifth Amendment right, the Supreme Court held that the prosecutor could use the defendant’s silence in court.

In Berghuis v. Thompkins (2010), the Supreme Court dealt with a nearly three-hour-long interrogation where the defendant said almost nothing. The Court found that by answering only a few questions, the defendant had impliedly waived his right to remain silent. So, if you want to stay silent, you must expressly invoke your Fifth Amendment right; you cannot simply remain silent.

Another misconception about non-custodial interviews is the belief that federal agents cannot lie. According to Frazier v. Cupp (1969), agents can lie to obtain answers. They can lie about incriminating evidence, and they can lie about how long a non-custodial interview will take. This means that if you don’t want to answer their questions, you should not wait for them to tell you what they know.

• Can they come into my home without a warrant? FBI agents need a warrant to enter your home. However, if you allow them to come in, their ability to enter is based upon your consent. In Florida v. Jardines (2013), the Supreme Court held that sniffing the front porch with a dog counts as an unlawful search.
• Am I required to answer if I am a public employee? In Garrity v. New Jersey (1967), the Supreme Court held that statements coerced from public employees cannot be used in criminal trials.
• What if my spouse is the one who wants to talk? In Trammel v. United States (1980), the Supreme Court held that the witness spouse has sole control over his or her right to testify.

Can I Get a Lawyer Before the FBI Questions Me?

If the FBI has you in custody or you are already charged with a federal crime, a lawyer is appointed. However, if you’re not in custody, no appointed lawyer. The Supreme Court explained in Rothgery v. Gillespie County (2008) that the right to a lawyer attaches at a first appearance in court, which is well after the FBI finishes questioning you. If you need a lawyer prior to a criminal charge, you must retain one yourself.

• Why doesn’t the FBI tell me whether I am a “target,” a “subject,” or a “witness”? Justice Manual 9-11.151 and the Department of Justice define these terms, but this is only for grand jury prosecutors. There are no federal guidelines for using these terms in an interview setting.
• What is a “target letter”? If you receive a target letter, there is substantial evidence that you committed a federal crime. Federal prosecutors are required to notify the person who is most likely to be charged, and you should contact a criminal defense lawyer immediately.
• What constitutes immunity? FBI agents can offer immunity, but they cannot confer it. To obtain immunity under 18 U.S.C. § 6002, the federal prosecutor must apply for a court order under 18 U.S.C. § 6003.
• Does Rule 410 apply to non-custodial FBI interviews? No, Rule 410 only applies if you are speaking to a prosecutor or a judge to negotiate a guilty plea.
• What is a “proffer agreement” and is it different from “immunity”? Proffer agreements protect what you say to the FBI from being used in the trial. However, this protection is rarely absolute; most proffer agreements permit the prosecution to use statements that you say which are corroborated by other evidence that can be used in the trial.
• What if I asked for a lawyer and the FBI agent told me a lawyer wasn’t necessary? In Davis v. United States (1994), the Supreme Court found that you must unambiguously request a lawyer for an interview to stop. If your request is not explicit, agents can keep questioning you.
• After I expressly invoke my right to speak to my lawyer, can an FBI agent reach out to me again? In Edwards v. Arizona (1981), the Supreme Court held that once a defendant invokes the right to counsel in a custodial interrogation, police cannot reinitiate questioning without his consent. However, this is limited to custodial interrogations, meaning federal agents can reach out if you are not in custody.

Todd Spodek and the attorneys at Spodek Law Group handle federal cases of this kind from New York, Brooklyn, Queens and Los Angeles.

What if I Already Answered the FBI and Made a Mistake?

False statements to federal agents are prosecuted under 18 U.S.C. Section 1001. This statute carries up to five years in federal prison, but that increases to eight years if the government proves that the person committed an act related to terrorism and made false statements during the FBI investigation. While Section 1001 is not a “100-day crime” (that sentence is often misattributed), the federal government can charge it under a five-year statute of limitations.

Section 1001 is not a strict liability crime. Prosecutors must prove beyond a reasonable doubt that the defendant made a statement that was knowingly and willfully false. So, if a target of an FBI interview does not recall the facts or misattributes something to a different time or person, it is difficult to sustain a conviction.

But there are three other ways that individuals can get convicted under Section 1001.

• Materiality. If you make a statement to the FBI that you have never committed a crime before, and the statement is false, the federal government can charge you with a criminal offense under Section 1001, as long as the statement is “material.” In United States v. Gaudin (1995), the Supreme Court held that materiality is a jury question, not a judicial one.
• Concealment. Along with providing false information, individuals can also be charged with concealing facts or delivering false documents to FBI agents. The Supreme Court calls this “concealment,” which is one of three forms of violation under Section 1001.
• Recantation and Prosecution. Unlike perjury, which requires a defendant to lie under oath, and where recantations are permitted under 18 U.S.C. § 1623(d), Section 1001 has no recantation defense. Individuals can be prosecuted for providing false information to an FBI agent, and they can also be prosecuted for providing false information on their SF-86 security clearance form.

Will the FBI Record My Non-Custodial Interview?

On July 11, 2014, the DOJ adopted a presumption that custodial interviews in detention facilities will be recorded electronically, with certain exceptions. National security is one of these exceptions. Recorded interviews are the norm and are authorized under two conditions:

• When the person being questioned consents.
• When non-custodial interviews are conducted under 18 U.S.C. § 2511(2)(d).

Under 18 U.S.C. § 2511(2)(c), recording is permissible when a person acting under color of law is a party to the communication or one party has given prior consent. This provision allows the FBI to record non-custodial interviews without your consent. However, some state laws are different. For example, California Penal Code § 632 requires all parties to consent to the recording of a confidential conversation.

As of June 2021, the DOJ requires body-worn cameras (BWCs) for all FBI, DEA, and ATF agents on all planned arrest operations.

Typically, FBI interviews have two agents present. One agent conducts the questioning while the other acts as a witness, recording any statements and taking notes to testify about them later.

What Happens to the FBI 302 After My Interview?

According to the FBI’s Electronic Media Recording Policy and the Federal Bureau of Investigation Handbook, an interviewing agent must document the interview on an FD-302 by the end of the fifth business day after the interview occurred.

Agents are also supposed to keep their original notes. They do not discard them after they draft the FD-302 summary. This is an important point because the original notes could contain additional information that the agents left out of the summary.

The FBI agents will not give you a transcript of the interview. They will not give you a copy of the FD-302. An FD-302 is an agent’s summary, not a verbatim transcript of the words that the agent used or that the interviewee used.

Is a Statement Made to an FBI Agent Hearsay?

The FD-302 itself is generally inadmissible hearsay. The interviewing agent will testify about the statements that the suspect made.

Under Rule 801(d)(2), the interviewer’s testimony can be admitted against the maker of the statement as an opposing party’s admission.

A defendant cannot offer a statement that he made to a federal agent to the federal jury. Hearsay rules apply, and an exculpatory statement that doesn’t fit an exception does not become admissible just because it is in the defendant’s favor.

If the federal government tries to introduce a witness’s prior statement, the statement must first meet an exception to the hearsay rule. When the government attempts to use a suspect’s prior statement, Rule 801(d)(2) provides the exception.

How Do You Get a Copy of the FBI 302?

If you are facing criminal prosecution, the federal government must provide a copy of any recorded interview you had with federal agents or FBI agents. We can also obtain copies of these statements through various means:

• Federal Rule of Criminal Procedure 16
• The Jencks Act
• The Constitutionally-mandated Brady obligations under Brady v. Maryland (1963)

If you suspect that the FBI has a copy of a statement you made, your criminal defense attorney needs to determine how to access the statement. The attorney needs to determine if the statement is exculpatory, and the attorney needs to prepare for the possibility that the federal government will introduce the statement in federal court.

How Long Can an FBI Investigation Remain Open?

Most federal criminal offenses are subject to a five-year statute of limitations under 18 U.S.C. § 3282.

But you can’t run out the clock on an FBI investigation. The reason is that the speedy-trial clock doesn’t run until you’re arrested or indicted. This allows the federal government to keep investigations open as long as it wants. For example, bank fraud has a longer statute of limitations of ten years, under 18 U.S.C. § 3293.

The clock on the Speedy Trial Act doesn’t run until you’re arrested or charged in federal court. Once arrested, you have 30 days to be indicted, and once indicted, you generally have 70 days until trial.

Federal grand juries are empaneled for 18 months, though they can be extended for up to another six months. The term of the grand jury often dictates the duration of the FBI investigation, though there are exceptions in cases where a criminal offense falls outside the term of the grand jury.

Even if the federal government does not pursue charges for months, it can still prosecute for federal offenses. To challenge the federal government’s decision not to bring charges sooner, you need to prove actual prejudice and prove a tactical delay to prolong the investigation. This is the standard that was established by the Supreme Court in United States v. Lovasco (1977).

If you gave false information to the FBI or answered their questions incorrectly, don’t assume that the FBI has ceased investigating or has decided not to prosecute. You cannot assume that the investigation is over. Silence for several months doesn’t mean the FBI closed the case. The FBI might be waiting for the federal grand jury to hear your case, or the FBI might be attempting to find incriminating evidence in another case.

What Should I Do if the FBI is Questioning Me?

If the FBI asks to question you, you should contact your counsel immediately. The FBI may want to question you at your place of employment or they may have already sent you a target letter. The FBI may want to question you at home. You have the right to refuse to speak with FBI agents, to tell them to speak with your lawyer, and to insist on speaking with your lawyer before answering questions.

Regardless of the circumstance, FBI interviews should only be conducted when it is in your best interests to speak with agents. This means that you should contact an attorney immediately to have an attorney provide advice before you respond to the FBI.

Contact a Federal Criminal Defense Attorney

Nothing here is legal advice, and the details of your case matter. Todd Spodek and Spodek Law Group take federal criminal and white collar cases nationwide, from offices in New York, Brooklyn, Queens and Los Angeles. You can reach the firm at 212-300-5196.