On September 16, 2015, I testified before the Joint Committee on the Judiciary and urged them to report favorably House Bill3449, which seeks to require the audiovisual recordings of certain police interrogations. This bill is a natural outgrowth of the reasoning articulated by our Supreme Judicial Court more than 10 years ago in the case of Commonwealth v. Digiambattista. At that time, the Court announced that henceforth, when the prosecution at a criminal trial introduces evidence of a defendant’s confession or statement that is the product of a custodial interrogation or an interrogation conducted at a place of detention, and there is not at least an audiotape recording of the complete interrogation, the defendant is entitled to a jury instruction advising that the state’s highest court has expressed a preference that such interrogations be recorded when practicable. The Court said that the instruction should advise 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. The SJC did not rule at that time that the failure to so record would make the statement or confession inadmissible at trial. Now, 10 years of criminal practice post-Digiambattista, Bill 3449 would reinforce the objectives and values advanced by a contemporaneous electronic record of suspect interviews by establishing a bright line rule disallowing the admission into evidence statements and confessions obtained by way of an unrecorded custodial interrogation.
At the time of the Digiambattista decision, the SJC acknowledged that such a bright line rule of inadmissibility would be a simple and effective method of convincing law enforcement officials to adopt recording as a standard practice. But they did not impose such a rule most likely because it would have been a significant departure from prior case law and because of unresolved questions such as 1) what interrogations would be subject to the rule?; and 2) what if interrogations that start out as noncustodial arguably become custodial at some later point? The Court also noted that any rule of exclusion would have to allow for a justifiable failure to record such as, for example, equipment malfunctions or the suspect’s refusal to allow recording. The Court also expressed a concern that too many interrogations might go unrecorded due to police officers influencing suspects to decline to be recorded.
The proposed statutory amendment and the historical record answer almost all the SJC’s concerns. It defines the crimes to which mandatory recording would apply as major felonies. The rule of exclusion would only apply to custodial interrogations. The problems posed by equipment malfunction and “custody” determination are also addressed by subsection (f) which holds that the presumption of inadmissibility may be overcome by a preponderance of evidence that the statement was voluntarily given and is reliable based on the totality of the circumstances. Finally, with regard to suspects declining to be recorded but willing to give statements, our understanding is that this has proven to be a rare event, and that, in fact, most suspects arrested post-Digiarnbattista who are willing to speak with the police are agreeable to being recorded, and many police officers in Massachusetts have found the recording of statements to be the preferred practice. Since the Digiambattista decision, experience has shown that the creation of a contemporaneous electronic record has proven to be both an effective law enforcement tool and a safeguard for the rights of those subject to interrogation. In the vast majority of cases, recordings create a permanent record of exactly what occurred and have narrowed disputes about the treatment of suspects, the parties’ behavior and the nature of the questioning. While there is some moderate expense to such recordings, the cost of failing to record can be greater – the risk of convicting the innocent.