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Summary

Massachusetts has no statute or court rule requiring recording of custodial interrogations.

Supreme Judicial Court Ruling

Massachusetts has a Supreme Judicial Court ruling that requires a jury instruction to be given when no recording is made of a confession resulting from an unrecorded custodial interrogation.

Citation:  Commonwealth v. DiGiambattista, 813 N.E.2d 516 (Mass. 2004).

In the DiGiambattista case, the Court declined to require law enforcement officials to electronically record custodial interviews under the Court’s supervisory powers or the state Constitution, but added, “this court has repeatedly recognized the many benefits that flow from recording of interrogations,” and that “we are not, however, satisfied with preservation of the status quo, which amounts only to repeated pronouncements from the court about the potential benefits of recording interrogations.”  The Court went on to say (813 N.E.2d at 529, 532-35.):

We believe that a defendant whose interrogation has not been reliably preserved by means of a complete electronic recording should be entitled, on request, to a cautionary instruction concerning the use of such evidence.

Thus, when the prosecution introduces evidence of a defendant’s confession or statement that is the product of a custodial interrogation … and there is not at least an audio-tape recording of the complete interrogation, the defendant is entitled (on request) to a jury instruction advising that the State’s highest court has expressed a preference that such interrogations be recorded whenever practicable, and cautioning the jury that, because of the absence of any recording of the interrogation in the case before them, they should weigh evidence of the defendant’s alleged statement with great caution and care. Where voluntariness is a live issue and the humane practice instruction is given [see Mass. Criminal Model Jury Instruction No. 3.560], the jury should also be advised that the absence of a recording permits (but does not compel) them to conclude that the Commonwealth has failed to prove voluntariness beyond a reasonable doubt.

…the instruction aptly focuses the jury’s attention on the fact that the Commonwealth has failed to present them with evidence of the ‘totality’ of the circumstances, but has instead presented that with (at best) an abbreviated summary of those circumstances and the interrogating officers’ recollections of the highlights of those circumstances. Jurors should use great caution when trying to assess the ‘totality of the circumstances’ when they have before them only a highly selective sliver of those circumstances, and they may properly decide that, in the absence of that ‘totality,’ they cannot conclude that the defendant’s statement was voluntary.

…It is of course permissible for the prosecution to address any reasons or justifications that would explain why no recording was made, leaving it to the jury to assess what weight they should give to the lack of a recording. The mere presence of such reasons or justifications, however, does not obviate the need for the cautionary instruction.

As is all too often the case, the lack of any recording has resulted in the expenditure of significant judicial resources…all in an attempt to reconstruct what transpired during several hours of interrogation conducted [months or years beforehand] and to perform an analysis of the constitutional ramifications of that incomplete reconstruction.

Discussion

In September 2006, the Attorney General and District Attorneys Association issued a Justice Initiative Report, which states in part:

Law enforcement officers shall, whenever it is practical and with the suspect’s knowledge, electronically record all custodial interrogations of suspects and interrogations of suspects conducted in places of detention.

The same month, the Chiefs of Police Association, District Attorneys Association, and State Police distributed to all state law enforcement agencies “Sample Policy and Procedure” (No. 2.17), containing the Report of the Justice Initiative: Recommendations of the MA Attorney General and District Attorneys to Improve the Investigation and Prosecution of cases in the Criminal Justice System. The Sample Policy and Procedure states in part:

It is the policy of the [police] department [instituting the policy], to electronically record all custodial interrogations of suspects or interrogations of suspects conducted in places of detention whenever practical.

In April 2007, an article was published in Lawyer’s Weekly, entitled Tale of the Tape: Recorded Interrogations Level the Playing Field, Despite Initial Fears, by N. Schaffer, which contains the following quotations from several experienced Massachusetts law enforcement personnel and defense lawyers:

Hampden County District Attorney, concerning his adverse reaction to the DiGiambattista ruling:

I felt that to record all the statements would result in a number of defendants refusing to give statements. They might be willing to speak to the police, but they’d be hesitant and reluctant to be recorded. I was wrong.

Berkshire County District Attorney:

Police departments that were reluctant at first are now pleased that claims of improperly obtained confessions can be proven false by turning on a tape. He says police “have long been annoyed” by claims of misconduct during the interview process. “Having the recorded statement has proved very effective at trial. It eliminates the suggestions that the police aren’t telling the truth, that [the defendant] never said it, or that there are other circumstances under which the statement was given. It has made a big difference in our ability to get a number of convictions, because it gives a lot of credibility to the prosecution of the case, and it in the defendant’s own words.” He has seen a decrease in motions to suppress being allowed. When recorded evidence results in a motion or verdict for the defense, his department often uses the video as an opportunity “for training.”

General Counsel of the MA Chiefs of Police Association:

We were worried at the beginning that [suspects] would shut up and not confess it they were being recorded. Before there were a lot of bogus claims. Now, when someone claims that they were surrounded by four officers standing over them and that the door was bolted, you can look at the video and see that they were being questioned by one person sitting behind a desk.

Essex County District Attorney:

[Taping custodial interviews] has shown judges and juries that the police are good at what they do. It has improved the quality of justice.

On October 1, 2008, the President of the Boston Bar Association (BBA) appointed a Task Force to Prevent Wrongful Convictions, in order to study the problem of wrongful convictions, and to make recommendations to reduce the number of wrongful convictions. The Task Force’s Report includes a chapter on Interviews of Suspects and Witnesses (pages 28-47), which contains the following recommendations:

1. All law enforcement agencies should video- record the entirety of all custodial interrogations of suspects in serious felony cases commonly prosecuted in Superior Court, unless strong countervailing considerations make such recording impractical or the suspect refuses to be recorded.

4. The Massachusetts Legislature should be encouraged to create a fund allowing all state and municipal police departments to apply for grants to purchase video equipment.

In February 2010, the MA District Attorneys issued a White Paper on Public Safety and Criminal Justice Policy, which contains the following statement relating to recommendation 1 of the BBA Task Force (pages 6-7):

Having seen the benefits of the DiGiambattista ruling over the last six years, we agree that video recording poses significant benefits to both the accuracy of the investigation and the persuasiveness of the evidence at trial, and accordingly endorse this BBA recommendation.

At my request, in January 2014, the third vice president of the Chiefs Association distributed a survey to all 360 chiefs statewide, requesting information about their practices and experiences with electronic recording of custodial interrogations in their departments.  Of the100 responses received, almost all responded that they make recordings of custodial interrogations of felony suspects except those that object, and virtually all reported positive experiences. They were not asked to describe the crimes that trigger recording, the factors that excuse recording, and related matters.  No responses were received from the other more than 250 departments.

We have been advised by a representative of the Chiefs of Police Association that state law enforcement authorities believe the directives have been very effective, and that electronic recording of custodial interviews is widespread throughout the state.  However, as noted above, there is no official information available as to the details of the recording practices of the 100 departments that responded to the recent survey, and as to the remaining 250-plus departments, there is no official information whatever as to their compliance with the Supreme Judicial Court’s admonition in the DiGiambattista case, the Justice Initiative Report, or the Attorney General’s recommendations.

Other Massachusetts Cases

Commonwealth v. Kee, 870 N.E.2d 57, 65 n.9 (Mass. 2007): “Commonwealth v. DiGiambattista . . . cited by the defendant in a footnote, is inapposite. There, we held that, where the Commonwealth presents evidence of a defendant's confession without introducing an electronic recording of the interrogation, the defendant is entitled, upon request, to a cautionary instruction. However, while the requirement was created pursuant to our supervisory powers only, that case has its genesis in the constitutional privilege against self- incrimination, see Fifth Amendment to the United States Constitution, and art. 12 of the Massachusetts Declaration of Rights. The considerations relevant to a missing evidence instruction, by contrast, do not implicate the privilege against self-incrimination.”

Commonwealth v. Barbosa, 933 N.E.2d 93,117 (Mass. 2010): “We agree that the judge erred in giving only the second part of the requested instruction. DiGiambattista is clear that, where the defendant requests the instruction, the judge must tell the jury both that (1) the State's highest court prefers that custodial  interrogations be tape recorded, whenever practicable, and (2) where there is not at least an audiotape recording of the complete interrogation, the jury should weigh the defendant's statements with great caution and care. We do not consider the first part of this instruction to be extraneous.”

Commonwealth v. Drummond, 76 Mass. App. Ct. 625, 629, 925 N.E.2d 34, 38 (2010): “Particular reasons why an interrogation was not recorded are for the jury to weigh when they consider, after hearing the instruction, evidence of what the Commonwealth contends the defendant said to police. As the court [in DiGiambattista] explained, ‘it is of course permissible for the prosecution to address any reasons or justifications that would explain why no recording was made, leaving it to the jury to assess what weight they should give to the lack of a recording. The mere presence of such reasons or justifications, however, does not obviate the need for the cautionary instruction.’ The judge's limiting language ignored this clear directive and stripped the instruction of at least some of its force.  As given, the instruction was incorrect.”

In Commonwealth v. Troung, 28 Mass. L. Rep. 223 (2011), the trial judge relied upon audio and video recordings of custodial interviews of a 16 year old girl. The judge found that the interviews were undertaken without affording her an opportunity to consult with her mother, that the girl did not give a valid waiver of her Miranda rights, and that her statements to the police officers were not voluntary. The trial judge said:

When, as here, there exists a combination of trickery and implied promises, together with Nga’s young age, lack of experience and sophistication, her emotional state, as well as the aggressive nature of the interrogation, the totality of the circumstances suggests a situation potentially coercive to the point of making an innocent person confess to a crime. [Citing case.] When such a situation exists, the Commonwealth has failed to meet its burden of establishing beyond a reasonable doubt that Nga’s statement was voluntary and the statement must be suppressed. [Citing DiGiambattista.]

Commonwealth v. Hoyt, 958 N.E.2d 834, 838 (Mass. 2011): During a recorded interview, a rape suspect said, “I’d like an attorney present. I mean I can’t afford one. So I guess I’ll speak to you now. I don’t have an attorney.” The trial court ruled that the suspect’s later incriminating statements were admissible because he had not made an unequivocal invocation of his right to counsel. On appeal from a conviction, the Supreme Judicial Court reversed, based upon a review of the video tape, which the court held established that the defendant did unequivocally request a lawyer, hence his incriminating statements were inadmissible.

Commonwealth v. Baye, 967 N.E.2d 1120, 1135 (Mass. 2012): A videotape was made of a lengthy interrogation of an arson suspect. Following indictment, the trial court denied the defendant’s motion to suppress incriminatory statements he had made during the interview. On interlocutory appeal, the Supreme Judicial Court, having analyzed the videotape, reversed the denial of the motion to suppress his statements, saying:

The troopers’ minimization of the defendant’s crimes, their implied assurances of leniency, and their suggestion that such leniency was a ‘now or never’ proposition reinforced their insistence that, in admitting to involvement in the fires, the defendant would not necessarily be admitting to having committed any serious felonies. These misrepresentations, in combination with the troopers’ attempts to persuade the defendant not to obtain the advice of counsel on whether to exercise his right to remain silent, constituted an affirmative interference with the defendant’s understanding of his fundamental constitutional rights. On this record, the Commonwealth has not shown beyond a reasonable doubt that the defendant’s statements were nevertheless freely and voluntarily made.

Commonwealth v. Brown, 82 Mass. App. Ct. 1123, 978 N.E.2d 591 (2012): “The DiGiambattista case counsels that a defendant who is the subject of an unrecorded police interrogation is entitled, upon request, to a cautionary jury instruction concerning the use of such evidence. The instruction may be given even when the defendant declines to have the statement recorded.”

Commonwealth v. Clarke, 82 Mass. App. Ct. 1104, 969 N.E.2d 749 (2012): The court held that the trial court did not violate the defendant’s privilege against self incrimination by allowing the state to prove that he refused to submit to have his interview recorded:

The Supreme Judicial Court has ‘expressed a preference’ that a defendant's statements during a police interview should be recorded. Where there is no such recording, the defendant is entitled to an instruction informing the jury of the court's preference and cautioning the jury to use great care in weighing such evidence. It is, however, ‘permissible for the prosecution to address any reasons or justifications that would explain why no recording was made, leaving it to the jury to assess what weight they should give to the lack of a recording.’

Commonwealth v. Portillo, 462 Mass. 324, 332, 333, 968 N.E.2d 395, 402, 403 (2012): The defendant’s tape recorded custodial interrogation was conducted entirely in Spanish. The defendant moved to suppress on the ground that he was not given Miranda warnings. The prosecutor provided the defense lawyer with a copy of the audiotape, but did not provide a copy of the English language translation which the prosecutor intended to introduce into evidence at the hearing on the motion to suppress. The trial court granted the defendant’s motion to suppress the audio recording, and the Commonwealth appealed. The Supreme Judicial Court held the trial judge “did not abuse her discretion in declaring that the Commonwealth may not offer in evidence the defendant’s statements or the audio recording of the interrogation while refusing to provide defense counsel with a translated transcript of the Spanish-language recording.” The Court vacated and remanded the trial court’s decision to give the Commonwealth “the opportunity to decide whether promptly to prepare and provide a translated transcript, now that it knows . . . the defendant’s statements will not be admitted in evidence unless it does so.” It also laid out the following standard:

Where an audio recording of a defendant’s statements is in the possession or control of the Commonwealth and is audible, the fair administration of justice requires that the Commonwealth prepare a translated transcript of the statements the Commonwealth intends to offer in evidence at trial or any pretrial evidentiary hearing, and provide the transcript to defense counsel, leaving sufficient time to resolve in advance of trial any questions regarding the accuracy or the translation . . . . If the commonwealth chooses not to invest the time, money or effort needed to prepare a translated transcript, it must pay the price of exclusion of the defendant’s recorded statements.

Commonwealth v. Bermudez, 83 Mass. App. Ct. 46, 53, 980 N.E.2d 462, 468 (2012): Two officers questioned a 17 year old male for 70 minutes in a police station interview room that was equipped with video equipment, about his involvement in a shooting.  He waived his Miranda rights and answered all questions without hesitation. The trial judge ruled the statements inadmissible because the defendant did not knowingly waive his Miranda rights. The Appeals Court reversed, based upon the “objective circumstances depicted in the interrogation videotape,” as well as that the defendant was “on the cusp of majority . . . far removed from the tender years of early adolescence.”

Commonwealth v. Ashley, 82 Mass. App. Ct. 748, 762, 978 N.E.2d 576, 587 (2012): The defendant was convicted of murder, based in part upon a recording of the interview in which the defendant implicated himself in the murder.  Following a hearing on defendant’s motion to suppress, the trial judge, after reviewing the recorded interview, admitted part and suppressed part of the recorded interrogation.  On appeal, the Appeals Court affirmed, after reviewing holding the defendant knowingly waived his Miranda rights, and implicated himself without police misconduct. The Appeals Court also rejected the argument that the videotaping violated the state wiretapping statute, which the Supreme Judicial court did not address in the DiGiambattista case.  The Appeals Court held that the detectives made it clear that they wanted to know and understand and get “down on paper” the defendant’s version of events, and that he “did not intend to keep his statements private, “recording of the interrogation does not amount to surreptitious eavesdropping; even if…a literal interpretation of the statute might imply a violation, we do not view the statute as intended to apply in such circumstances as these.”

Commonwealth v. Rousseau, 465 Mass. 372, 392, 990 N.E.2d 543, 560 (2013): “The defendant contends that the emphasized portion of the above instruction vitiated the DiGiambattista instruction by informing the jury that they could consider the fact that the defendant was given the opportunity to have the interrogation recorded, but declined. As an initial matter, we find nothing wrong with the gist of the judge’s additional language, which we think ‘hews to the lines laid out in DiGiambattista.’ The additional instruction merely alerted the jury to a factor they were entitled to consider in assessing why the conversation was not recorded, while leaving intact the instruction's cautionary force . . . However, while the use of an additional instruction such as given here is permissible, the use of the term ‘waived’ is problematic.” The court found that the error was not prejudicial.

Federal Cases

United States v. Younis, 890 F. Supp. 2d 818 (N.D. Ohio 2012): Senior District Judge James G. Carr granted the defendant’s motion to suppress evidence seized during a traffic stop, and ordered further hearings with regard to the defendant’s subsequent statements. Judge Carr said:

As I also expressed at the conclusion of the hearing, I am deeply concerned about the failure of Trooper Stanbaugh to record his interrogation. I neither know of nor can perceive any valid reason for any law enforcement agency or officer, where the means to do so are readily at hand, not to record his or her activities, whether during a traffic stop or in an interrogation room. Officers sworn to uphold not just the laws, but also the Constitutions of the United States and the State of Ohio have the most important of all motives – fidelity to that oath – for recording such encounters.

During the hearing on the motion to suppress, Judge Carr made the following statement:

We’re here for one simple reason that I find inexplicable, and that is the failure to use readily available equipment permanently to record each and every important incident in the chain of events that brings us here. I do not understand why the trooper can leave his machine running for however long it took to head down the road to the turn around, apparently three or four minutes, I don’t know, but he couldn’t turn it on at least after he saw the first incident. We wouldn’t be here if he had done so. And I haven’t heard a good reason why he did not do so. And I trust that the government will notify the posts in this region that this federal judge expects better of the people who – whom I and every other citizen of this area are paying to do their job. If nothing else we’ve wasted his time today, time that he could have been spent making the turnpike and I-75 safer for us to travel, for want of four or five minutes of recording. I mean, it was at least, I infer, three hours left on the recording device. He indicated this was his first traffic stop. His time being on duty had been spent conveying an earlier arrestee to and from the Lucas County Jail. There is no excuse for that kind of activity. Likewise, we wouldn’t be here wondering just how well Mr. Younis can or cannot understand English and what was said between Mrs. Younis and her husband in the course of translation if Inspector Stanbaugh had, as apparently many other inspectors state highway patrol and every local agency that I’m aware of, routinely records everything that happens during an interrogation. It is inexplicable. It is inexcusable. It is no way to treat citizens. It is no way to treat a court of law. It is no way to treat the Constitution of the United States. And if it is the ATF policy as it is the FBI policy deliberately not to record its interrogations, then I suggest you talk with the U.S. Attorney’s Office about how I will handle that in the future in any case that goes to a jury in front of me.  There is no reason for that practice, none whatsoever. And we would not be here unless that practice had not been involved. I am inclined to find that there’s insufficient evidence in this record to find it more likely than not that those traffic offenses occurred. And if I find that the stop was illegal and everything that happened thereafter was illegal. I take the record as I find it. And I simply am not persuaded by the existence of a routine practice not to do something that is easy.  It’s not innovative. The equipment is in those cars, it can be turned on and off. If you’re running out of space on the recording chip, you’re in the vicinity of a patrol post, go in, download it, clean it up, and record.

United States v. Jacques, 784 F. Supp. 2d 48 (D. Mass. 2011): Jacques was interrogated for 6 1/2 hours in an interview room by an FBI agent and a Massachusetts state trooper, during which Jacques admitted committing an arson. The interview was videotaped. In ruling on Jacques’ pretrial motion to suppress, the trial judge found in the government’s favor on two contentions:

First, Jacques was not under the influence of narcotics (pp. 53-54):

On the videotaped interrogation, which includes the time during and subsequent to the signing of the [Miranda] waiver, Defendant shows no visible or audible signs of impairment whatsoever.  His demeanor and mannerisms appear perfectly normal, and his answers are both cogent and responsive.

The videotaped interrogation only reinforces Nurse Passa’s conclusions.  As at the outset of the interrogation when he signed the Miranda waiver, Defendant remained cogent and responsive throughout the questioning, up to and including his confession. Defendant’s answers were grammatical, pertinent, articulate, and, in some cases, eloquent.  Simply put, he did not show any signs of a weakened mental or physical condition that would make him in any way vulnerable to aggressive interrogation.”

Second, Jacques was not coerced (pp. 54-56):

[W]hile the questioning was vigorous and persistent, neither Trooper Mazza nor Agent Smythe took any action that could be deemed a constitutionally offensive method of coercion.

Significantly, though Defendant stated he well knew he had the option, he never once expressed a wish to terminate the interrogation, or even to take a break from it.  He never said he was tired or ill.  In addition, Defendant requested and was granted three cigarette/bathroom breaks.  Defendant’s age (twenty- four years old) and familiarity with the criminal justice system also weighed against a finding of involuntariness . . . .

Defendant clearly waived his right to remain silent, both by his conduct and by signing a written statement to that effect.  Thus, even if Trooper Mazza’s comments could be deemed an implied threat, that threat was directed not at Defendant’s invocation of his Miranda rights, but at his steadfast refusal to provide honest answers (In Trooper Mazza’s eyes) to the investigators’ questions.

Miscellaneous

Departments we have identified that presently record:

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• Custodial Interrogation
• Maryland