Section Review

Commonwealth v. DiGiambattista: Interrogations, audiotaping and impact of the new rule

Eric Neyman is a partner with Gadsby Hannah in Boston, where his practice focuses on litigation.
In Commonwealth v. DiGiambattista,1 the Massachusetts Supreme Judicial Court revisited the issue of electronic recording of interrogations and announced that “henceforth, the admission in evidence of any confession or statement of the defendant that is the product of an unrecorded interrogation conducted at a place of detention, will entitle the defendant, on request, to a jury instruction concerning the need to evaluate that alleged statement or confession with particular caution.”2 The ruling is designed to eliminate the constant struggle involved in reconstructing what transpired during an interrogation and preserve the best evidence of the interrogation that is, according to the SJC, “readily available” to law enforcement.3 The majority opinion, however, arguably oversimplifies the issue and creates a significant and controversial rule that raises as many new issues as it attempts to resolve.

The new rule

As both the majority opinion and the dissents aptly note, recordings of interrogations are desirable.4 Moreover, other jurisdictions have concluded that recording interrogations “would act as a deterrent to police misconduct, reduce the number and length of contested motions to suppress, allow for more accurate resolution of the issues raised in motions to suppress, and, at a trial on the merits, provide the fact finder a complete version of precisely what the defendant did (or did not) say in any statement or confession.”5

With this background in mind, the rule announced by the SJC in DiGiambattista seems, at first glance, unremarkable. Viewed simply, it suggests that the defendant may request and receive a jury instruction concerning the need to evaluate a confession with particular caution.

The actual rule, however, is quite striking in its breadth and its force. The rule states as follows:

when the prosecution introduces evidence of a defendant’s confession or statement that is the product of a custodial interrogation conducted at a place of detention (e.g., a police station), and there is not at least an audiotape 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, 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.6

Rarely has the court mandated an instruction that (1) specifies that the “State’s highest court has expressed a preference” for a certain form of conduct, and (2) advises that the failure to comply with that preference, standing alone, effectively permits a negative conclusion against the commonwealth. Although the precise impact of the instructions is unknown at this time, the SJC clearly took an extraordinary step in requiring the new instructions.

Unique legislative realm or appropriate judicial role?

The SJC notes in the majority opinion that it has repeatedly stated its preference that interrogations be recorded in order to improve the accuracy, fairness and efficiency of criminal proceedings.7 While stepping short of excluding non-taped confessions, the majority felt compelled to mandate a new “cautionary instruction” for juries. This decision effectively implements the court’s prior warnings. It is difficult to criticize the court’s stated presumption that audiotaped confessions are better evidence than the parties’ collective and/or diverging recollections and claims. In view of the court’s prior signals and clear warnings, law enforcement should have seen this coming. Accordingly, because of law enforcement’s failure (in some circumstances) to preserve the best evidence available, and juries’ receipt of “a woefully incomplete and inherently unreliable version of what everyone recognizes as critical evidence in the case,” the court crafted a remedy which “aptly focuses the jury’s attention on the fact that the commonwealth has failed to present them with the ‘totality’ of the circumstances, but has instead presented them with (at best) an abbreviated summary of those circumstances and the interrogating officers’ recollections of the highlights of those circumstances.”8

Was it the court’s role, however, to order such sweeping change? As noted in one of the dissenting opinions, the Legislature is uniquely suited to study, evaluate, and promulgate rules and guidelines to implement such rules.9 (“Experience with the criminal rules of procedure demonstrates that practices that have been studied and codified in rules and exceptions work the best. The Legislature, of course, may act at any time, and that body is uniquely suited to conduct the type of study necessary to fashion a workable procedure”)). In light of the Courts’ prior admonitions, and the Legislature’s inaction to date, this criticism may be unpersuasive to some.

Of greater significance is the criticism set forth in Justice Greaney’s dissent, where he said: “The instructions also suffer from the fact that counsel on appeal have not been heard with regard to them. The briefs on the case (both by the parties and the amici) focus virtually exclusively on the reasonableness of ordering recording. No brief has directly discussed the appropriateness of instructions or their content. The instructions proposed, I suspect, will come as a shock to the Commonwealth, and I expect as well that, had additional briefing been permitted, the Commonwealth would have much to say on the language that should be used in any instructions.”10 Put simply, it is fair to question the Court’s failure to seek the input and advice of prosecutors, defense counsel, and other practitioners on such a critical issue, particularly where the Court received amicus briefs and input on related issues, but did not seek input on the “appropriateness of instructions or their content.”11 Had the Court done so, it likely could have formulated an equally forceful, but less explosive instruction.

What Is Meant By “Whenever Practicable?”

Another concern stems from the seemingly mandatory nature of the instructions. When must a trial court give the “DeGiambattista instruction”? The majority’s holding seems to presuppose that the absence of an audiotaped confession is the fault of law enforcement.12 (“when the party with the burden of proof beyond a reasonable doubt on the issues of voluntariness and waiver deliberately fails to utilize readily available means to preserve the best evidence of what transpired during the interrogation . . .”);13 (“[w]here, however, those interrogating officers have chosen not to preserve an accurate and complete recording of the interrogation, that fact alone justifies skepticism of the officers’ version of events. . .”);14 (“where the utilization of recording is left to the unfettered discretion of law enforcement. . . and an officer has chosen not to record a particular interrogation, we think that it is only fair to point out to the jury that the party with the burden of proof has, for whatever reason, decided not to preserve evidence of that interrogation in a more reliable form. . .”). This is not always the case. Common sense and experienced law enforcement officers know that many suspects are unwilling to speak if their conversation is recorded.15

What happens then, if the suspect refuses to be audiotaped? Must the instruction be given? Clearly, under such circumstances, it is not “practicable” to audiotape the interrogation. Yet in DiGiambattista, the Court specifically stated that “we 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.”16 This language plainly directs trial courts to give the new instruction, even where the defendant refused to be recorded. Such a practice is patently unfair to the prosecution, and misleading to the jury. The instruction, given under such circumstances, presents the finder of fact with a fractured, inaccurate picture of events.

To address this issue, the SJC allowed that the prosecution may provide reasons or justifications explaining the lack of a recording, “leaving it to the jury to assess what weight they should give to the lack of a recording,” but held that the presence of such justifications “does not obviate the need for cautionary instructions.”17 In the context of a witness’ refusal to be audiotaped, the cautionary instruction — designed to “point out to the jury that the party with the burden of proof has, for whatever reason, decided not to preserve evidence of that interrogation in a more reliable form, and to tell them that they may consider that fact as part of their assessment of the less reliable form of evidence that the Commonwealth has opted to present” — seems sorely misplaced.

Moreover, it is unclear how the SJC would have trial courts handle the issue of “refusal evidence” — i.e. what happens when a witness refuses to be recorded, but denies such during trial? May the prosecution rebut such a claim with testimony concerning the defendant’s refusal to be recorded, or would such testimony impinge on a defendant’s Fifth Amendment rights, and be tantamount to constitutionally inadmissible “refusal testimony.” What if police departments require subjects of custodial interrogation who refuse to speak on audiotape or videotape, to sign a Miranda-style “waiver of recording” form? Would the waiver form be admissible to rebut the lack of a recording, or would such a form (and testimony regarding the form) constitute inadmissible refusal evidence?18 Massachusetts courts will undoubtedly need to address the delicate issue of “refusal testimony” in this context.


Although the issue of audiotaping interrogations involves constitutional concerns, the SJC has already announced that the entitlement to a jury instruction announced in DiGiambattista was an exercise of the Court’s superintendence powers and “not a constitutional rule.”19 Accordingly, the rule mandating jury instructions on the subject “will not be applied retroactively.”20

Guidance to the Jury or Intrusion on the Commonwealth’s Case?

As drafted, the newly mandated instruction is laudable for its clarity. The Court addressed a longstanding problem, and afforded guidance to trial courts and practitioners. Yet, as the dissent acknowledges, the newly mandated instruction implies that the failure to record was a strategic decision on the part of the government to conceal the true facts of an investigation, which simply may not be the case.21 Thus, the instructions may not be warranted, and may even be misleading, in certain circumstances,

Moreover, as Justice Greaney contends in his dissent, “the proposed instructions are 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.”22 By informing a jury that the State’s highest court has expressed a preference that interrogations be recorded, and by telling the jury that in the absence of such a recording the jury should weigh evidence of the alleged statement with great caution — even in cases where voluntaries is not at issue in the case — the instruction virtually invites juries to question the actions of law enforcement and give less credence to the prosecution’s case. The instructions potentially have the effect of altering the traditional totality of the circumstances test used to evaluate voluntariness and waiver, by overemphasizing one particular, albeit critical, factor. There is not enough empirical or anecdotal data to evaluate fully and fairly the impact of the new instructions to date. The legitimate concern, however, is that the Court, in a commendable effort to guide juries, has crafted an instruction that unfortunately may influence juries and thus the outcome of cases.

End notes

1. 442 Mass. 423 (2004).[back]

2. Id. at 425.[back]

3. Id. at 441.[back]

4. See id. at 535 (Greaney, J. (concurring in part and dissenting in part, with whom Spina and Cowin, JJ., join)) quoting Commonwealth v. Diaz, 422 Mass. 269, 272-273 (1996) (“There is force to a recording requirement particularly if a defendant is being questioned at a police station. . . A recording speaks for itself literally on questions concerning what was said and in what manner. Recording would tend to eliminate certain challenges to the admissibility of defendants’ statements and to make easier the resolution of many challenges that are made. . . .”).[back]

5. DiGiambattista, 442 Mass. at 442 (citations omitted).[back]

6. Id. at 447-448.[back]

7. Id at 449.[back]

8. Id. at 448.[back]

9. See id. at 450 (Greaney, J. (concurring in part and dissenting in part, with whom Spina and Cowin, JJ., join).[back]

10. Id. at 451, n. 1.[back]

11. Id.[back]

12. See id. at 441.[back]

13. Id. at 447.[back]

14. Id. at 449.[back]

15. Id. at 459-460 (Spina, J. dissenting).[back]

16. Id. at 448 (emphasis added).[back]

17. Id. at 448-449.[back]

18. See, e.g., Commonwealth v. McGrail, 419 Mass. 774, 778-780 (1995) (concluding that evidence of defendant’s refusal to submit to field sobriety tests violated defendant’s privilege against self-incrimination under Article 12 of the Massachusetts Declaration of Rights); Commonwealth v. Zevitas, 418 Mass. 677, 683 (1994) (concluding that an instruction mandated by G.L. c. 90, § 24 (l)(e), regarding blood alcohol tests, had the effect of unconstitutionally compelling an accused to furnish evidence against himself); Opinion of the Justices, 412 Mass. 1201, 1211 (1992) (advising the Legislature that proposed legislation mandating the admission of evidence of an accused’s refusal to submit to a breathalyzer test of his or her blood alcohol level would violate the privilege against self-incrimination contained in Article 12 of the Declaration of Rights of the Massachusetts Constitution).[back]

19. Commonwealth v. Dagley, 442 Mass. 713, 720-721 (2004).[back]

20. Id. at 721.[back]

21. See DiGiambattista, 442 Mass. at 453 (“the presumption, implicit in the instructions, that the failure to record was a strategic decision on the part of an interrogating officer intent on concealing the true nature of the interrogation, adds an entirely new, unjustified, factor to the ‘totality of the circumstances’ test.”)[back]

22. Id. at 451 (Greaney, J. (concurring in part and dissenting in part, with whom Spina and Cowin, JJ., join)).[back]

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