Commonwealth v. DiGiambattista, 442 Mass. 423 (2004).
The Supreme Judicial Court’s (“SJC”) decision in Commonwealth v. DiGiambattista1 is of immediate importance in any criminal case in which the defendant is alleged to have made a statement to a police officer. Whenever the prosecution offers in evidence a defendant’s statement that was not electronically recorded, and the statement was produced either by custodial interrogation or interrogation in a detention facility, the defendant is entitled to a jury instruction that casts significant doubt on the statement’s credibility.2 Based on the SJC’s supervisory authority over lower courts rather than a constitution or a statute,3 DiGiambattista’s applicability is extremely broad. It reaches misdemeanors and felonies, without regard to whether voluntariness is at issue in the case, and without regard to the reason for the failure to record the statement. It will encourage law enforcement authorities to record significantly more statements by defendants,4 and places the court very firmly in favor of recording and as concerned about the effects of police “trickery.” DiGiambattista directly affects the voluntariness analysis for confessions when trickery is involved and indirectly heightens the standard of review the SJC applies to confession questions in general by effectively eliminating much of the deference traditionally granted to motion judges on the question of suppression. DiGiambattista’s implementation raises several questions, including what to do when a defendant refuses to have his statement recorded, what police efforts are permitted to obtain a defendant’s consent to recording, and what a defendant must show concerning the existence of an unrecorded statement in order to obtain the DiGiambattista instruction. Those questions will be answered on a case-by-case basis.
Besides its significant impact on law enforcement practices and suppression jurisprudence in the Commonwealth, the court’s decision will also likely have national significance in the debate concerning mandatory recording of interrogations. Courts have ordered the mandatory recording of all custodial interrogations in only two U.S. states (Alaska5 and Minnesota6), although recording is in 2005 the subject of proposed legislation in 18 states (including Massachusetts) and the District of Columbia.7 While two states and the District of Columbia have recently enacted legislation requiring some degree of recording,8 and recording of all custodial interrogations has been voluntarily adopted by a wide range (but still a distinct minority) of law enforcement authorities throughout the country,9 recording remains controversial.10 When recording has been required by court decision (as in Alaska and Minnesota), debate has centered on the judiciary’s authority to order police to adopt a particular policy.11 When recording has been required by legislation, compromises inherent in the legislative process often make it incomplete and limited in scope.12 As significant as DiGiambattista will be in Massachusetts, it may be even more significant in providing a model for other state courts that recognize the benefits of mandatory recording to fashion a rule that is both conscious and respectful of the limits of judicial authority.13
I. The Case
A. Facts
DiGiambattista was an arson case involving the burning of an unoccupied house at 109 Adams Street in Newton.14 The house and a construction company based next door were both owned by Angelo Paolini.15 The defendant, Valerio DiGiambattista, and his girlfriend, Nicole Miscioscia, and her children had rented the premises.16 They had vacated the house three days before the fire and moved to Chelsea.17 DiGiambattista had changed the locks when he left, so that he and his mother (who was storing some items in the house) were the only people with keys to the front door.18 A neighbor discovered the fire around midnight, and firefighters found the building locked.19 Investigation revealed the fire had been set between 11:25 p.m. and 11:55 p.m., using gasoline near a stair closet and paper in a kitchen sink.20
DiGiambattista and Miscioscia were questioned the next day at their home in Chelsea.21 Some evidence initially pointed to DiGiambattista as a possible suspect. He and Miscioscia gave somewhat differing accounts of his activities the evening of the fire,22 and a dispute over the landlord’s alleged failure to make repairs — leading DiGiambattista to withhold rent — might have provided him a motive.23 DiGiambattista suggested Paolini as a possible perpetrator, and he allegedly mentioned that the landlord might have used gasoline, although the authorities had not revealed to him the type of accelerant used.24 A witness later described seeing a man resembling DiGiambattista enter the property about five hours before the fire, although the witness could not identify DiGiambattista and did not see the person’s face.25
One month later, DiGiambattista was interviewed again by the police, and this questioning became the principal issue in the case. A state trooper and a Newton police officer accompanied DiGiambattista to a Revere fire station, where he was told that he was free to leave, was given Miranda26 warnings, and executed a written rights waiver.27 Initially relaxed questioning quickly turned directly accusatory.28 DiGiambattista was told that he was the principal suspect, that a witness placed him at the scene, and that his account was contradicted by other witnesses.29 DiGiambattista repeatedly denied involvement and agreed to a polygraph.30
The police then did two things that became the focus of the court’s analysis of the interrogation. First, they presented false evidence implicating DiGiambattista in the crime. “[A] trooper came into the room carrying a thick folder and two videotapes.”31 The folder was stuffed with unrelated papers.32 One tape, labeled “109 Adams Street,” had been shot at the scene the night of the fire, and the other, labeled “Paolini Construction Worker’s Comp Case,” was blank.33 Placing these items conspicuously before DiGiambattista, the trooper then asked, “‘If I told you that somebody at Paolini Construction was under surveillance by an insurance company for a worker’s comp fraud case, is there any reason you would show up on that videotape?’”34
Second, almost immediately after presenting the false evidence, the police minimized the significance of the crime. The trooper noted that no one had been hurt, and he explained that he could “understand” DiGiambattista’s anger at his landlord for allowing the property to deteriorate and his desire to “do something like that.”35 DiGiambattista was left alone with the trooper who had brought in the folder and videotapes, and who characterized the event as a “product of stress, alcohol consumption, and understandable frustration with his living situation at 109 Adams Street.”36 The trooper then presented two explanations for DiGiambattista’s commission of the crime: either he had wanted “to hurt someone” or he “‘had to be upset,’ under ‘stress,’ and that ‘when you add the booze in, you’re going to make mistakes.’”37 DiGiambattista then allegedly made incriminating statements and signed a written confession.38 No recording was made of any of these events.39
In addition to the trickery of the false evidence and the minimization of the crime, DiGiambattista claimed that the police did several things that overbore his will and violated his rights under the state and federal constitutions. He claimed that the police had ignored his request for an attorney; that they promised him leniency in the form of alcohol counseling if he confessed; that they threatened to jail Miscioscia and take away her children if he did not confess; and that they misled him to believe that one officer was from the prosecutor’s office.40 Finally, DiGiambattista argued that the alleged confession was not sufficiently corroborated, as no physical evidence meshed with the details of his confession.41
B. Procedure
DiGiambattista was a procedurally prolonged case. In his initial appeal to the Massachusetts Appeals Court, DiGiambattista unsuccessfully challenged the voluntariness of the confession, the failure to repeat Miranda warnings and the ignoring of his request for counsel.42 The Appeals Court remanded the case for further fact-finding and clarification, noting, “[t]hat there was trickery is indisputable,” and that the question of voluntariness, given the “ruse used by the police to convince the defendant that his actions had been captured on videotape,” was not adequately addressed in the motion judge’s ruling.43 Following remand, the motion judge again denied the motion to suppress, and the Appeals Court affirmed the finding that the confession had been voluntary, noting that while police trickery “casts instant doubt on whether a defendant’s statement is voluntary,” this doubt alone does not mean that under the totality of the circumstances the confession is involuntary.44 The Appeals Court also affirmed the motion judge’s conclusions that whatever discussion of alcohol counseling occurred had not risen to the level of a promise of leniency, that the introduction of an officer as “working with the D.A.’s office” had been factually correct and not intentionally coercive, and that DiGiambattista’s claims of threats to jail Miscioscia or take her children, and ignoring his request for counsel, were not credible.45
This case might well have remained a relatively routine application of the test for voluntariness of a confession, without mention of recording of confessions, had the Appeals Court not raised the issue of recording on its own motion. In rejecting DiGiambattista’s argument that his confession had not been sufficiently corroborated, Justice Duffly canvassed scholarly treatment of the corroboration requirement, suggesting that it was arguably the most significant bulwark against a false confession.46 She explained that several scholars had suggested that the best protection against admission of a false or unreliable confession would be a heightened corroboration requirement in conjunction with mandatory recording of confessions.47 She “observe[d], once again that many of the questions that recur with regularity on appeals alleging improper interrogation techniques could more easily be resolved if interrogations were videotaped or otherwise electronically recorded.”48
The SJC granted the defendant further review,49 and, three months after issuance of Justice Duffly’s opinion, it sought amicus curiae briefs on three issues that had not originally been briefed below.50 The Court posed two questions concerning the requirement of corroboration: should it be modified to require either corroboration that the defendant was actually the perpetrator or that the confession was trustworthy, and should corroboration be a precondition to the admission of a confession?51 Most significantly, the SJC asked whether it should require electronic recording of custodial interrogations, at least in places of detention, and if so, how this could be accomplished.52
II. The Majority Opinion
In an opinion by Justice Sosman, joined by Chief Justice Marshall and Justices Cordy and Ireland, the SJC resolved the three questions it raised, reversed DiGiambattista’s conviction, ordered that his statement be excluded and granted him a new trial.53
A. Corroboration
The SJC quickly rejected the claim that Massachusetts’ corroboration rule should be altered.54 As in all jurisdictions, a conviction based upon a confession must be corroborated, but in Massachusetts this requires proof only that the underlying crime was committed, rather than proof that the defendant was the perpetrator or that the confession is otherwise reliable.55 The court held that even such a heightened corroboration requirement would have been satisfied here, where there was ample evidence of arson and other facts that could have implicated DiGiambattista.56 The court carefully noted that two of the four facts that could have corroborated his commission of the crime actually were not borne out by his confession.57 So, for example, while a witness did see someone resembling DiGiambattista at the house earlier on the night of the fire, independent evidence proved that the defendant was elsewhere one hour later and, in his confession, he never mentioned being at the house earlier that evening.58 Similarly, while the court found that he was one of only three people with access to a front door key,59 and the door was found locked by firefighters, his confession never mentioned locking the door when he left — which was at least at odds with the state’s theory that he had committed the crime while drunk and still remembered to lock the door behind him.60 The court’s affirmance and application of the existing corroboration rule demonstrated the very low degree of corroboration required.
B. Voluntariness
In addressing the voluntariness of DiGiambattista’s statement, the court reiterated its longstanding position that presentation of false evidence is a police tactic of which it disapproves, yet the use of “trickery” alone does not necessarily compel a finding of involuntariness.61 Since voluntariness is judged under the totality of the circumstances,62 a trial judge’s finding of voluntariness, even with the presence of trickery, is almost certain to be affirmed. The court distinguished cases of trickery alone from those involving trickery plus other factors, such as the failure to honor the invocation of the right to remain silent, assurances of benefits from confessing, or susceptibility of a suspect to pressure.63 These, it noted, had resulted in suppression.64
Citing academic research on the phenomenon of false confessions (i.e., confessions that were demonstrably factually untrue), the court concluded that police use of false, apparently irrefutable evidence is “a significant factor that pressures suspects into waiving their rights and making a confession.”65 Although DiGiambattista denied having confessed, the court identified as significant something else in conjunction with the use of false evidence: an implied offer of leniency.66
DiGiambattista argued that he had been promised leniency in the form of counseling for alcohol addiction, but the court noted that it had to accept the motion judge’s factual finding that there had been no explicit promise of leniency.67 Yet, the motion judge’s rejection of an explicit promise of counseling in exchange for a confession was not, according to the SJC, a complete rejection that counseling had been discussed, and this was a fact to consider in assessing voluntariness. 68 The counseling discussion, the court explained, had to be understood in the context of the state trooper’s minimization of the crime.69 Citing psychological research suggesting that minimizing the seriousness of a crime by an interrogator has the effect of an offer of leniency, the SJC cited the officer’s description of the defendant as being under stress, under the influence of alcohol, and not having meant to hurt anyone.70 While not an explicit offer of leniency, these comments could function as an implied offer of leniency when the suspect understands it as a quid pro quo for adoption of the minimized version of the crime as the truth.71 Even if this did not demonstrate that the confession was false, the court found, it nonetheless undermined the commonwealth’s effort to demonstrate the voluntariness of the confession.72
C. Electronic Recording
Together with its refinement of the voluntariness analysis by holding that police use of false evidence combined with minimization amounts to an implied promise of leniency, the SJC significantly changed the legal consequences of police failure to record statements. For over a decade, the court had called for recording as an aid to assessing voluntariness:
We believe that the electronic recording of interrogations would, in many cases, be a helpful tool in evaluating the voluntariness of confessions. Defendants, prosecutors, and courts spend an enormous amount of time and effort trying to determine precisely what transpires during custodial interrogations, and all would be benefited in some way by a complete electronic recording.73
Eight years before, the court had held that the failure to record an interrogation, although not automatic grounds for suppression, was a factor to consider in determining the questions of voluntariness and the valid waiver of a suspect’s rights.74 The SJC had repeatedly recommended recording, and had often warned that “the time may come when recording in places of detention, at least, will be mandatory if a statement obtained during custodial interrogation is to be admissible.”75
The court declined to exercise its superintendence power and order mandatory recording.76 But, not “satisfied with preservation of the status quo, which amounts only to repeated pronouncements from the court about the potential benefits of recording interrogations,”77 the SJC mandated a jury instruction advising juries to scrutinize unrecorded statements with care.78
The court canvassed the arguments against the practice of recording and found them lacking.79 It concluded that “[d]espite initial reluctance on the part of law enforcement personnel, actual experience with recording of interrogations has confirmed that the benefits expected from the procedure have indeed materialized, and most of those benefits ultimately inure to the prosecution, not to the defendant.”80 The “principal objection” to recording was that it would deter confessions, because people would not speak freely and incriminate themselves if they knew they were being recorded.81 Citing a 2004 study by former Illinois U.S. Attorney Thomas P. Sullivan, and a 1993 study by the U.S. Justice Department, the court concluded that “notwithstanding initial apprehension and skepticism, law enforcement agencies overwhelmingly endorse the practice of recording interrogations once they have gained experience with it.”82
While the court wholly endorsed recording as a policy, it expressly declined to order the mandatory recording of custodial interrogations.83 The SJC noted that the scope of such a directive, its applicability to noncustodial statements, and its treatment of arguably justifiable failures to record and statements that become “custodial” would all present additional questions for litigation.84 In light of these issues, the SJC thus was “hesitant to formulate a rigid rule of exclusion.”85 The status quo, under which the party that may gain the most from the lack of an accurate recording can choose whether to make one, was unsatisfactory. The solution was giving juries the same advice that the court had repeatedly given judges concerning the significance of lack of a recording.86
III. Dissenting Opinions
There were two forceful dissenting opinions, by Justices Greaney and Spina, which suggest the range of opinions on the court concerning its role in promoting systemic reform of criminal justice procedures.87 The dissents probably will have only limited impact on implementing recording, however, because they focused on the propriety of mandating a jury instruction rather than on recording per se.
Justice Greaney, who acknowledged the benefits of recording, objected to both the specific remedy of the jury instruction and the way in which it was implemented. He characterized the instruction as “far too intrusive on the Commonwealth’s rights and of a nature that will tend to ‘dynamite’ a jury into concluding that a defendant’s statement should be rejected.”88 His sharpest criticism was directed at the way the instruction requirement was implemented.89 He contrasted the approaches of other state courts, which had used study commissions of various parties, and predicted the “mandatory rule without guidelines and exceptions could lead to a quagmire of litigation,” and recommended instead that when a defendant challenges the voluntariness of an unrecorded statement produced by custodial interrogation, the jury simply be instructed that it may consider the lack of recording as one factor in the totality of the circumstances, just as judges already do.90
Justice Spina, who opposed neither recording nor a jury instruction in principle,91 nevertheless dissented from both the court’s voluntariness analysis of DiGiambattista’s statement and its implementation of the jury instruction. Justice Spina criticized the “voluntariness plus” analysis that found an implied promise of leniency in the interrogators’ minimization of the crime, and attacked the empirical basis of the scholarship suggesting that minimization even had this effect.92 “I question the wisdom of fashioning a powerful new legal equation in Massachusetts (trickery plus implicit promises of leniency equals suppression) — one that was not even proposed by the defendant in his own motion — based largely on what one commentator has dubbed ‘not yet ready for “prime time”’ research.”93 As for mandating the instruction, which he decried as “a new rule permitting an automatic determination of involuntariness based solely on the lack of a recording,”94 he opposed its fundamental change to the “totality of the circumstances” analysis for voluntariness by making lack of recording the one circumstance that trumped all others.95
IV. The Future
A. Recording of Defendant’s Statements
1. When must a recording be made, where, of what and how?
The application of the recording instruction in DiGiambattista will depend in part on the reaction of law enforcement, but several procedural details concerning implementation of the rule are clear. The instruction is automatically available, upon the defendant’s request, whenever the state introduces a statement that was not electronically recorded, regardless of the reason, which was produced either by custodial interrogation or interrogation in a detention facility.96
a. Electronic Recording
“Electronic recording” means at least an audiotape recording97 (although videotape — presumably with adequate sound — would apparently suffice as well) of the complete interrogation from the advice of rights.98 A handwritten record, as was made in DiGiambattista, is plainly inadequate. If a recording was made, it need not be introduced to avoid the instruction; it need only be produced to the defendant.99
b. Custodial Interrogation
The meanings of “Custodial” and “Interrogation” are well-established from Miranda jurisprudence. As the SJC recently explained,
custody depends primarily on the objective circumstances of the interrogation, and not on the subjective views of either the interrogating officers or the person being questioned. The critical question in making the custody determination is “whether, considering all the circumstances, a reasonable person in the defendant’s position would have believed that he was in custody.”100
The court has recognized these four factors as relevant in this analysis:
(1) the place of the interrogation; (2) whether the police conveyed any belief or opinion that the person being questioned was a suspect; (3) whether the questioning [was] aggressive or informal; and (4) whether the suspect was free to end the interview by leaving the place of interrogation, or whether the interview ended with the defendant’s arrest.101
“Interrogation” means “express questioning or its functional equivalent” that a law enforcement agent “should know [is] reasonably likely to elicit an incriminating response from the suspect.”102
c. Detention Facility
A “detention facility” is at least a police station,103 and almost certainly state police barracks, as recordings are already made there so it would be “reasonable to expect that arrangements for recording can be made [there].”104 Whether it includes a courthouse holding area or sheriff’s facility is less clear, and there is at least a hint that the court would consider expanding the requirement beyond detention facilities.105
d. Nonretroactive Application
The rule applies to any case tried after August 16, 2004, the day that DiGiambattista issued, regardless of whether the statement was obtained before or after the opinion was rendered.106 Because the decision is based upon the court’s superintendence authority over lower courts, it has no retroactive effect.107 Thus it does not apply to appeals pending as of issuance of the decision,108 even if the appellate briefs had been filed before the DiGiambattista opinion was rendered.109
e. Application in Bench Trials and Suppression Hearings
The significance of the jury instruction applies beyond jury trials. The weight the state’s highest court gives to unrecorded statements by defendants made during custodial interrogations or interrogations in a detention facility should affect the judgment of any fact-finder, lay or judicial, in any proceeding that relies on such a statement. Thus DiGiambattista should be applicable to a judge’s assessment of the voluntariness of an alleged confession in a suppression hearing110 or any other evidentiary motion.
2. What will the Refusal, or Failure, to Record Mean?
Under DiGiambattista’s approach of mandating a jury instruction rather than mandating recording, many subsidiary questions that typically arise in implementing taping will not be legally significant.111 The instruction is triggered, upon request, by the absence of a recording regardless of the reason,112 or shortcomings in a recording such that it is incomplete. The state can explain the failure to record or to record fully and argue it to the jury.113 Prosecutors have begun doing this.114 Nevertheless, counsel will likely face several issues as this widespread change in law enforcement policy occurs throughout the Commonwealth.
a. Notice to the Person Being Recorded
Implementing DiGiambattista raises several questions surrounding statements that, either because of the actions by the suspect or the police, are not recorded. Suspects may refuse to have their statements taped, which presumes they are aware they are being recorded. The court’s analysis suggests it assumed that notice of recording would be given.115
This would be consistent with the current status of the Massachusetts wiretap statute.116 Although the court did not explicitly address whether the police must inform someone that he is being recorded, the wiretap law bars secret recording, and requires consent by all parties to the conversation unless law enforcement is investigating certain offenses related to organized crime and has prior judicial authorization to intercept the communication.117 Even though the recording would be occurring in a location with a reduced expectation of privacy (i.e., a police station or detention facility), the wiretap statute has been held to apply to surreptitious recording of oral communications when one could not reasonably expect the conversation was private.118 No effort has been made since the DiGiambattista decision to amend the wiretap statute.
b. Refusal to be Recorded
What can, or must, the police do if a person refuses to be recorded? It is unclear what effort the police may, or must, make to obtain a recording. The opinion contemplates both a right of the defendant to refuse recording, and a correlative risk that enthusiastic respect for this right could “too easily become the exception that swallows the rule.”119 Since the state may explain, through testimony or argument, the absence of a recording,120 it seems inevitable that the defendant’s refusal to be recorded is admissible.
The prosecution had argued in DiGiambattista that the defendant’s right to refuse to be recorded would preclude surreptitious recording,121 and concern over challenges to surreptitious recording may lead many law enforcement agencies in the Commonwealth to advise persons that they are being recorded. Over 80 U.S. jurisdictions record interrogations with notice to the suspect,122 and one recently enacted recording statute specifies that a person’s refusal to be recorded, although it can be honored, must itself be recorded.123 This practice would not appear to violate the state’s wiretap law, as recording a suspect’s refusal to be recorded would not be an “interception,” which means “to secretly hear, [or] secretly record.”124
c. Mechanics of Recording
While “videotapes are ‘on balance, a reliable evidentiary resource,’ [and] . . . should be admissible as evidence if they are relevant, they provide a fair representation of that which they purport to depict, and they are not otherwise barred by an exclusionary rule,” completeness affects evidentiary weight, and the degree to which the recording will accurately memorialize the interrogation.125 Rule 30A of the Massachusetts Rules of Civil Procedure (Audiovisual Depositions and Audiovisual Evidence) provides a useful guide for the mechanics of recording. Part (d) of the Rule describes “Procedure,” which includes a description of items that should be in the opening, closing, and provides for interruptions, a time index (i.e., a clock), as well as a requirement that “the audio-visual tape records the witness in a standard fashion at all times during the deposition.”126
d. Incomplete or Otherwise Inadequate
Recordings
Recordings may be incomplete because they start too late, end too early, or have unexplained breaks. DiGiambattista makes clear that the recording must be complete,127 and in combination with a recent United States Supreme Court decision invalidating custodial interrogation that follows preparatory statements taken before Miranda warnings,128 this strongly suggests that the recording should include the advice of rights. Best practices for the recording, to accomplish its goal of enabling subsequent review of the voluntariness of the statement, would be similar to those that satisfy the requirement for admissibility, namely, that ensure it is a fair representation of what it depicts. As with any other recording, the start and end times for both the recording and any breaks, explanations of breaks, identification of location, all persons present, and of anyone who speaks should be routine. The court had already suggested as much in Commonwealth v. Fernette:129
The purpose of taping confessions is to preserve reliable evidence of the defendant’s statement or confession. The periodic stopping of the tape recorder for reasons other than changing the tape does not further this goal. In the future, the better practice is to leave the tape recorder on during the entire interview, including silences of the defendant, emotional displays by the defendant, or casual conversation among the participants in the interview, so that the fact finders, whether judge or jury, are better able to assess the totality of circumstances.130
e. Procedural Requirements for Seeking
Instruction
What is the defendant’s burden to establish that an unrecorded statement was in fact given? In DiGiambattista there was no dispute that the defendant gave a completely unrecorded statement (there was a dispute concerning what was said), but there could as easily have been a dispute concerning what was recorded if there had been some recording. Will a bare assertion by the defendant that he made some statement that was not recorded (in addition to the portion he concedes was recorded) be sufficient to obtain the instruction? Since the state is free to explain any alleged absence in the recording, and proving such an absence would be extremely difficult for a defendant, requiring more than an assertion by the defendant that some of the statement was not recorded would seem inconsistent with the logic of DiGiambattista. At least one trial judge has interpreted the rule this way.131
B. Voluntariness
As significant as DiGiambattista may be for its impact on the recording of police interrogations, it may also deter police from lying to suspects about false incriminating evidence because of the effect this practice may have on subsequent voluntariness analysis.
1. Trickery and “Trickery Plus”
The legal test for voluntariness under Article 12 of the Massachusetts Declaration of Rights is unchanged: a statement is still “voluntary” if it was “the product of a rational intellect and a free will.”132 But after the decision in DiGiambattista, cases in which police use trickery, particularly false statements about nonexistent incriminating evidence or witnesses, will now be subject to much greater scrutiny, even though the legal test has not changed, for two reasons. First, whatever the level of “trickery” by law enforcement, if complete recording of interrogations truly occurs there will simply be more evidence of it. Second, trickery cases will now have to be distinguished from “trickery plus” cases, those involving anything else that has been identified as making a false or unreliable confession more likely.133
“Trickery plus” will include at least minimization of the seriousness of the defendant’s conduct as it did in DiGiambattista. It certainly includes the misrepresentation about the defendant’s rights,134 or an implied promise of leniency for, or suggestion of helpfulness to defense from, a confession.135 It might also include the minimization of the potential criminality or seriousness of potential charges.136
2. Appellate Review of Confession Cases
DiGiambattista also effectively raises the standard of appellate review in confession cases. As recording of interrogation becomes widespread, the traditional appellate “acceptance” of findings of underlying facts unless not warranted by the evidence, and “substantial deference” accorded the motion judge’s “ultimate findings” on voluntariness137 will end. Instead, appellate courts will have “documentary evidence” in the form of electronic recordings to determine both the facts of the interrogation (e.g., who asked what, when, what else was discussed, what was the tone, nuance, and tenor of the exchange) and the ultimate facts of the voluntariness and lawfulness of admitting the confession.
A few weeks before its decision in DiGiambattista, the SJC noted in Commonwealth v. Novo138 that the venerable principle that “a judge who has seen and heard the witnesses is in a better position to determine their credibility than is a court which is confined to the printed record,”139 does not apply when “the evidence before the trial court is reduced to a tangible form, and is therefore available to the appellate court in the same form as it was reviewed by the trial court.”140 Explaining that the deferential standard does not apply to findings based on transcripts of deposition testimony or those concerning the “content and significance” of photographs, it held that “we will ‘take an independent view’ of recorded confessions and make judgments with respect to their contents without deference to the fact finder, who ‘is in no better position to evaluate their content and significance.’”141 Recording may produce fewer suppression motions, or their quicker resolution in the trial court, but their ultimate resolution will — more than ever — rest on appeal.
V. Conclusion
DiGiambattista will inevitably change the practice of law enforcement agencies, and the application of the doctrines of voluntariness and appellate review by courts within Massachusetts. It will also likely impact the national debate over recording interrogations by offering an alternative for courts that approve of recording but are reluctant to challenge the traditional control of legislatures and the executive over police practices and criminal justice. At the simplest level, it should change every criminal practitioner’s approach to his case, by making review of the tape part of routine case preparation, and arguments about what the tape shows — or does not show — part of the defense theory.
David M. Siegel
The author is a Professor of Law at the New England School of Law. He submitted an amicus curiae brief in the case on behalf of Suffolk Lawyers for Justice, Inc. and the New England Innocence Project.
1. 442 Mass. 423 (2004).[back]
2. Id. at 447-48. [back]
3. Id. at 444-45. [back]
4. In fact, law enforcement officials have developed “Suggested Guidelines for the Electronic Recording of Interrogations.” These suggested guidelines have been published on the Executive Office of Public Safety website in conjunction with grant funding for community policing programs. See http://www.mass.gov/Eeops/docs/programs/law%20enf/commonwealth_v_digiam_guide.doc (last visited Feb. 1, 2006). Anecdotal accounts by defense lawyers and prosecutors suggest the incidence of recording defendants’ statements, particularly in homicide cases, has increased since the decision. See David E. Frank, Defense Lawyers Reap Benefits of Ruling on Taped Confessions, Mass. Law. Wkly., Sept. 5, 2005, at 1, 32.[back]
5. Stephan v. State, 711 P.2d 1156, 1159-60 (Alaska 1985).[back]
6. State v. Scales, 518 N.W.2d 587, 592 (Minn. 1984), reh’g denied, No. C4-93-1541, 1994 Minn. LEXIS 639, at *1 (Minn. Aug. 10, 1994).[back]
7. Jurisdictions considering recording legislation in 2005 include: Arizona (H.B. 2614); California (S.B. 171); Connecticut (S.B. 1281); District of Columbia (B. 15-1073); Florida (H.B. 1119, H.B. 1169); Illinois (S.B. 72); Indiana (H.B. 1708); Maryland (H.B. 46); Massachusetts (H.B. 794/S. 916); Missouri (S. 397/H.B. 557); Nebraska (L112); New Hampshire (H.B. 636); New Mexico (H.B. 382); New York (A. 6541/S. 3354); Oregon (S.B. 265); Rhode Island (H.B. 5349/ S.B. 187); Tennessee (H.B. 1148/S.B. 1679; H.B. 204/S.B. 108); Texas (H.B. 450, and S.B. 662); and Wisconsin (A.B. 648).
The Massachusetts bill (H.B. 794/S. 916) was filed jointly by the house and senate chairs of the Joint Committee on the Judiciary. It would mandate recording, exclude unrecorded statements, and would expand the situations in which recording is required, but would also codify a "good cause" exception to the recording requirement. Under the bill, any interrogation conducted in a "police station, courthouse, correctional facility, community correctional center, detention facility, or other structured environment where adequate recording equipment is readily available" would be presumed inadmissible if it was not electronically recorded. See H.B. 794, sec. (a)(2) and (b). However, the commonwealth could rebut this presumption by showing clear and convincing evidence of "good cause" not to record the interrogation, such as refusal by the suspect to be recorded, that the interrogation occurred at a place other than described in the statute where recording equipment was not readily available, or equipment failure. This bill was referred to the Judiciary Committee on January 26, 2005.[back]
8. D.C. Code Ann. § 5-133.20 (2003); Ill.Comp.Rev.Stat. 405/5-401.5(e)(vi)(2005); 725 Ill.Comp.Stat. 5/103-2.1(e)(vi)(2005); Me. Rev. Stat. Ann. tit. 25, § 2803-B(1)(K)(West 2005).[back]
9. Recent studies list dozens of police departments from 38 states nationwide that record statements. Thomas P. Sullivan, Police Experiences With Recording Custodial Interrogations, app. A, Nw. U. Sch. L. Ctr. On Wrongful Convictions No. 1 (Summer 2004), available at http://www.law.northwestern.edu/depts/clinic/wrongful/documents/SullivanReport.pdf.[back]
10. In the District of Columbia, for example, an ordinance requiring the police department to record most interrogations had been in force but largely ignored for two years. D.C. Code Ann. §5-133.20 (2003). The city council recently passed a new ordinance by a vote of 12 to 1 which directed courts to presume that unrecorded statements were involuntary and inadmissible. On January 21, 2005, the mayor vetoed this bill, with support from the District’s Attorney General and the U.S. Attorney. See Carol D. Leonnig, Bill to Tape D.C. Police Interviews Is Vetoed; Council Leaders Promise Override, Wash. Post, Jan. 24, 2005, at B01. Taping has been endorsed by the American Bar Association House of Delegates (Feb. 9, 2004) as official ABA policy:
RESOLVED, That the American Bar Association urges all law enforcement agencies to videotape the entirety of custodial interrogations of crime suspects at police precincts, courthouses, detention centers, or other places where suspects are held for questioning, or, where videotaping is impractical, to audiotape the entirety of such custodial interrogations.
FURTHER RESOLVED, That the American Bar Association urges legislatures and/or courts to enact laws or rules of procedure requiring videotaping of the entirety of custodial interrogations of crime suspects at police precincts, courthouses, detention centers, or other places where suspects are held for questioning, or, where videotaping is impractical, to require the audiotaping of such custodial interrogations, to provide necessary funding, and to provide appropriate remedies for non-compliance.[back]
11. See, e.g., State v. Cook, 847 A.2d 530, 545 (N.J. 2004) (refusing to mandate recording, noting “[w]e view as significant the consequences attendant to imposing a rule precluding the admissibility of a confession based on a failure to record electronically,” and creating a committee to study and make recommendations on recording). On October 14, 2005, the New Jersey Supreme Court adopted a rule proposed by its Special Committee on the Recordation of Custodial Interrogations that requires electronic recording of custodial interrogations in homicide cases as of January 1, 2006 and in serious felonies as of January 1, 2007. See Supreme Court of New Jersey, Notice to the Bar, Adoption of Rule 3:17 (Electronic Recordation), October 14, 2005, available at http://www.judiciary.state.nj.us/notices/2005/n051024a.htm.[back]
12. For example, Illinois is recording on pilot basis only in three counties and statewide only for homicide cases.[back]
13. The decision has been favorably cited in a trio of articles by Thomas P. Sullivan in publications for judges, Police Experiences With Recording Custodial Interrogations, 88 Judicature 132, 132 n.3 (Nov.-Dec. 2004), criminal defense lawyers, The Police Experience Recording Custodial Interrogations, 28 The Champion 24, 26 n.9 (Dec. 2004) and federal practitioners, Recording Custodial Interrogations: The Police Experience, 52 Fed. Law. 20, 24 (Jan. 2005). Sullivan has also proposed a model bill for electronic recording of custodial interrogations. See Thomas P. Sullivan, Electronic Recording of Custodial Interrogations: Everybody Wins, 95 J. Crim. L. & Criminology 1127, 1141 (Spring 2005). The decision has also been noted by the highest courts of several states. E.g., Gasper v. State, 833 N.E.2d 1036, 1041 (Ind. Ct. App. 2005) (noting DiGiambattista’s observations about the value of recording and recommending recording as a matter of “sound policy and fairness of proceedings”); People v. Combest, 828 N.E.2d 583, 589 n.5 (N.Y. 2005) (authorizing a defendant’s subpoena for the videotape of his interrogation held by a television company lest police be able to immunize themselves from discovery obligations by having third parties make recordings). [back]
14. DiGiambattista, 442 Mass. at 425.[back]
15. Id.[back]
16. Id.[back]
17. Id.[back]
18. Id.[back]
19. DiGiambattista, 442 Mass. at 425-26.[back]
20. Id. at 426.[back]
21. Id.[back]
22. Id.[back]
23. Id. at 425.[back]
24. DiGiambattista, 442 Mass. at 426.[back]
25. Id.[back]
26. See generally Miranda v. Arizona, 384 U.S. 436 (1966).[back]
27. DiGiambattista, 442 Mass. at 426.[back]
28. Id. at 426-27.[back]
29. Id.[back]
30. No polygraph was ever given, nor did the police ever intend to give one. Id. at 427 n.5.[back]
31. Id. at 427.[back]
32. DiGiambattista, 442 Mass. at 427.[back]
33. Id.[back]
34. Id.[back]
35. Id.[back]
36. Id. at 428.[back]
37. DiGiambattista, 442 Mass. at 428. [back]
38. Id. at 428-29.[back]
39. Id. at 430.[back]
40. Id. at 428 n.7.[back]
41. Id. at 430.[back]
42. Commonwealth v. DiGiambattista, 55 Mass. App. Ct. 1112 (Table), No. 00-P-876, 2002 WL 1825739 (Mass. App. Ct. Aug. 8, 2002) (an unpublished decision).[back]
43. Id., 2002 WL 1825739, at *2-*3. The remand order noted that the police testimony could have actually corroborated parts of the defendant’s claims of inducement and coercion, and that his request for counsel had been ignored, and directed the trial court to specifically address these questions. Id. at *2-*3. [back]
44. DiGiambattista, 59 Mass. App. Ct. 190, 194 (2003).[back]
45. Id. at 195.[back]
46. Id. at 196 n.4.[back]
47. Id. [back]
48. Id. at 196 (internal citations omitted). [back]
49. Commonwealth v. DiGiambattista, 440 Mass. 1106 (2003) .[back]
50. Supreme Judicial Court, Commonwealth v. DiGiambattista, “Announcement” (Dec. 15, 2003), available at http://ma-appellatecourts.org/display_docket.php?dno=SJC-09155 (last visited Sept. 22, 2005) (SJC Announcement).[back]
51. The first two questions were:
1) Whether the so-called “corroboration rule” adopted in Commonwealth v. Forde, 392 Mass. 453, 457-58 (1984), should be modified to require, either in addition to or in lieu of evidence of the corpus delicti, some corroborative evidence that the accused was the perpetrator of the crime, or independent evidence of the trustworthiness of the confession, or be modified in some other fashion;
2) Whether such corroborative evidence should be required not only to sustain a conviction, but also as part of the foundation for admitting into evidence a defendant’s confession or admission.
SJC Announcement.[back]
52. The final question was:
3) Whether the court should require that a custodian [sic] interrogation of an accused, at least at a place of detention, be electronically recorded before a statement made by the accused as a result of the interrogation may be admitted in evidence; and if so, how this should be accomplished. See, e.g., Commonwealth v. Groome, 435 Mass. 201, 219 n.26 (2001).
SJC Announcement.[back]
53. DiGiambattista, 442 Mass. at 425.[back]
54. Id. at 430-32.[back]
55. Commonwealth v. Forde, 392 Mass. 453, 458 (1984).[back]
56. DiGiambattista, 442 Mass. at 430-31.[back]
57. Id. at 431 nn.9-10.[back]
58. Id. at 431 n.9.[back]
59. Id. at 431. It is unclear from the opinion who, if anyone, other than DiGiambattista and his mother had keys to the house.[back]
60. Id. at 431 n.10. [back]
61. DiGiambattista, 442 Mass. at 432.[back]
62. Id. at 433.[back]
63. Id.[back]
64. Id. (citing Commonwealth v. Meehan, 377 Mass. 552, 562-64 & n.4 (1979), cert. dismissed, 445 U.S. 39 (1980), and Commonwealth v. Jackson, 377 Mass. 319, 322-24 (1979), as examples of trickery “plus” cases).[back]
65. DiGiambattista, 442 Mass. at 434.[back]
66. Id. at 435.[back]
67. Id. at 436 n.12.[back]
68. Id. at 435-36.[back]
69. Id. at 436.[back]
70. DiGiambattista, 442 Mass. at 436. The SJC even noted that each of these “minimizing themes” had been adopted by DiGiambattista himself in his confession and in the letter of apology he wrote at the suggestion of a police officer. Id. at 436 n.13.[back]
71. Id. at 436 (citing psychological research). [back]
72. Id. at 439-40.[back]
73. Commonwealth v. Fryar, 414 Mass. 732, 742 n.8 (1993). [back]
74. Commonwealth v. Diaz, 422 Mass. 269, 273 (1996). [back]
75. Id.; see also Commonwealth v. Groome, 435 Mass. 201, 219 n.26 (2001) (“reiterat[ing] that ‘police officials should be . . . warned that the time may come when recording . . . will be mandatory. . . .’”); Commonwealth v. Burgess, 434 Mass. 307, 314 (2001) (observing that “the electronic recording of interrogations is helpful”); Commonwealth v. Pina, 430 Mass. 66, 70 n.8 (1999) (saying that the court again “decline[s] to go beyond our prior pronouncements” regarding recording as a matter of law); Commonwealth v. Larkin, 429 Mass. 426, 438 n.10 (1999) (noting that the failure to record an interrogation may be raised by the defense to cast doubt upon the voluntariness of a confession); Commonwealth v. Ardon, 428 Mass. 496, 498 (1998) (commenting that “we have suggested that at some time, such a requirement may become appropriate”); Commonwealth v. Fernandez, 427 Mass. 90, 98 (1998) (warning that “at some time, such a [recording] requirement may become appropriate”).[back]
76. DiGiambattista, 442 Mass. at 445.[back]
77. Id. at 445-46.[back]
78. Id. at 446.[back]
79. Id. at 443-46.[back]
80. Id. at 443.[back]
81. DiGiambattista, 442 Mass. at 443. [back]
82. Id. n.20.[back]
83. Id. at 445.[back]
84. Id.[back]
85. Id.[back]
86. DiGiambattista, 442 Mass. at 446 (“Just as we have advised judges of the significance they may attach to the lack of a recording when deciding motions to suppress, we believe it is appropriate to provide juries with that same advice.”).[back]
87. Id. at 449 (Greaney, J., dissenting, joined by Spina and Cowin, JJ.); id. at 454 (Spina, J., dissenting, joined by Greaney and Cowin, JJ.) Justice Cowin joined only in Part B of Justice Spina’s dissent. Id.[back]
88. Id. at 451 (Greaney, J., dissenting).[back]
89. “Finally, the length of overreaching by the court is dramatically exposed by the fact that no State has chosen to require instructions of the type now required. To find some authority for this Draconian remedy, the court has to look to Australia, and that authority is quietly nested in a footnote.” Id. at 453 (Greaney, J. dissenting) (emphasis in original).[back]
90. Id. at 454.[back]
91. DiGiambattista, 442 Mass. at 461 (Spina, J., dissenting) (“I do not oppose the electronic recording of custodial interrogations. I do not even oppose instructing the jury, on the defendant’s request, that they should consider the Commonwealth’s decision not to record as one factor when deciding voluntariness of a confession — an instruction that was not given (or apparently requested) in this case”) (emphasis in original.)[back]
92. Id. at 456-57. (Spina, J., dissenting).[back]
93. Id. at 459 (Spina, J., dissenting).[back]
94. Id. at 461 (Spina, J., dissenting).[back]
95. Id. at 461-62 (Spina, J., dissenting).[back]
96. DiGiambattista, 442 Mass. at 447; see also id. at 448 (“Where we now mandate a jury instruction, not a rule of exclusion, we think that the instruction is appropriate for any custodial interrogation, or interrogation conducted in a place of detention. . . .”) (emphasis added).[back]
97. Id. at 447 (the instruction is required where “there is not at least an audiotape recording”).[back]
98. Id. (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”); id. (the instruction is required where “there is not at least an audiotape recording of the complete interrogation”) (emphasis added).[back]
99. Id. at 447 n.23.[back]
100. Commonwealth v. Murphy, 442 Mass. 485, 492-93 (2004).[back]
101. Id. at 493.[back]
102. Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980); Commonwealth v. Torres, 424 Mass. 792, 796-97 (1997).[back]
103. DiGiambattista, 442 Mass. at 448 n.26.[back]
104. Id. [back]
105. Id. (“For now, this instruction need be given only in cases involving interrogation of a defendant in custody or at a place of detention.”) (emphasis added).[back]
106. Commonwealth v. Dagley, 442 Mass. 713, 721 (2004) (“The rule of DiGiambattista is also to be applied only prospectively, i.e., to trials occurring after the issuance of that decision.”); accord Commonwealth v. Perez, 62 Mass. App. Ct. 912, 914; Commonwealth v. Penn, 62 Mass. App. Ct. 1108 (Table), No. 03-P-323, 2004 WL 2422244, at *1 n.1 (Mass. App. Ct. Oct. 29, 2004) (unpublished decision).[back]
107. Dagley, 442 Mass. at 721 (“Consistent with that prior assurance, the rule mandating jury instructions on the subject (adopted in lieu of a rule excluding unrecorded statements) will not be applied retroactively.”).[back]
108. Penn, 2004 WL 2422244, at *1 n.1.[back]
109. Dagley, 442 Mass. at 720 n.9.[back]
110. Commonwealth v. Fleming, No. 04-0860, 2005 Mass. Super. LEXIS 89, at *13 (Mass. Super. Ct. Feb. 10, 2005) (Hillman, J.) (refusing to suppress the defendant’s statement, taken before the DiGiambattista decision, for the failure to record it, but suppressing it on other grounds). [back]
111. DiGiambattista, 442 Mass. at 445.[back]
112. Id. at 448 (“[W]e think that the instruction is appropriate for any custodial interrogation, or interrogation conducted in a place of detention, without regard to the alleged reasons for not recording that interrogation.”).[back]
113. Id. at 448-49.[back]
114. See David E. Frank, Defense Lawyers Reap Benefits of Ruling on Taped Confessions, Mass. Law. Wkly., Sept. 5, 2005, at 32 (quoting Suffolk County Assistant District Attorney Joshua Wall: “If you’re introducing a statement that wasn’t recorded, you have to spend some time explaining to the jury both at trial and with additional jury instructions why that is.”).[back]
115. DiGiambattista, 442 Mass. at 444 (“A technique, like recording, that reinforces a suspect’s understanding and appreciation of that portion of the Miranda warnings is not to be eschewed because it would have that desirable reinforcing effect.”).[back]
116. Mass. Gen. Laws ch. 272, § 99 (2005).[back]
117. See id. § 99(B)(4)(2005). [back]
118. E.g., Commonwealth v. Hyde, 434 Mass. 594, 594-601 (2001) (a motorist’s attempt to secretly record his interaction when stopped by police officer violated the wiretap statute). [back]
119. DiGiambattista, 442 Mass. at 445.[back]
120. Id. at 448-49.[back]
121. Brief of Amicus Curiae the Attorney General of Massachusetts at 16-18, Commonwealth v. DiGiambattista, 442 Mass. 423 (2004) (No. SJC-09155).[back]
122. Thomas P. Sullivan, Police Experiences With Recording Custodial Interrogations, app. B, Nw. U. Sch. L. Ctr. On Wrongful Convictions No. 1 (Summer 2004), available at http://www.law.northwestern.edu/depts/clinic/wrongful/documents/SullivanReport.pdf.[back]
123. 705 Ill. Comp. Rev. Stat. Ann. 405/5-401.5(e)(vi)(West 2005); 725 Ill. Comp. Stat. Ann. 5/103-2.1(e)(vi) (West 2005).[back]
124. § 99(B)(4)(2005).[back]
125. Commonwealth v. Mahoney, 400 Mass. 524, 527 (1987). [back]
126. Mass. R. Civ. P. 30A (2005).[back]
127. DiGiambattista, 442 Mass. at 447 (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”) (emphasis added); id. (instruction required where “there is not at least an audiotape recording of the complete interrogation”) (emphasis added).[back]
128. Missouri v. Seibert, 542 U.S. 600, 616-17 (2004) (a “question first” approach with a dry run of the statement before warnings are given violates Miranda).[back]
129. 398 Mass. 658 (1986).[back]
130. Id. at 665.[back]
131. Jonathan Saltzman, Slaying Of Mother And Unborn Baby Goes To Jury; Judge Warns Panelists On Untaped Confession, Boston Globe, Oct. 16, 2004, at B1 (a Suffolk County Superior Court judge instructed a jury under DiGiambattista, when the state offered two tapes with 55 minutes of recorded interrogation, based on the defendant’s account of additional unrecorded interrogation).[back]
132. Commonwealth v. Davis, 403 Mass. 575, 581 (1988).[back]
133. See, e.g., Commonwealth v. Ray, 63 Mass. App. Ct. 1108 (Table), No. 03-P-1450, 2005 WL 695703), at *1 (Mass. App. Ct. March 25, 2005) (unpublished decision) (distinguishing that case from DiGiambattista, as one in which “calculated trickery [was] used to obtain [a] statement, along with additional indicia of involuntariness, [that] cast doubt on both the validity of defendant’s waiver of rights and the voluntariness of his statements”).[back]
134. Commonwealth v. Novo, 442 Mass. 262, 267-68 (2004) (officer’s repetition 19 times of “now or never” theme, that mischaracterized interview as defendant’s only opportunity to get his story out, even if semantically correct, rendered confession involuntary).[back]
135. Commonwealth v. Meehan, 377 Mass. 552, 564-68 (1979) (a police officer’s false statement that a second witness implicated defendant — when he actually contradicted first witness’s account — combined with the observation that the “truth would be best defense,” rendered the defendant’s confession involuntary). [back]
136. Commonwealth v. Carp, 47 Mass. App. Ct. 229, 233-34 (1999) (a Massachusetts Department of Social Services investigator’s mischaracterization of the interview with the defendant as “social services,” in the presence of a police officer, and the emphasis on the lack of need for an attorney rendered the statement involuntary). Another court has recently cited DiGiambattista for the proposition that research on the effects of minimization in interrogation suggests “trickery by the police, particularly when applied to those of immature minds, may cause, with a substantial degree of probability, false confessions.” Singletary v. Fischer, 365 F. Supp. 2d 328, 336 (E.D.N.Y. 2005) (Weinstein, J.).[back]
137. Commonwealth v. Raymond, 424 Mass. 382, 395 (1997) (quoting Commonwealth v. Tavares, 385 Mass. 140, 145, cert. denied, 457 U.S. 1137 (1982)).[back]
138. 442 Mass. 262 (2004).[back]
139. Id. at 266.[back]
140. Id. (citing Berry v. Kyes, 304 Mass. 56, 57 (1939)).[back]
141. Id.[back]