By Denise Lavoie, The Associated Press
BOSTON (AP) -- Harshly criticizing the use of unrecorded criminal
confessions, the state's highest court on Monday strongly discouraged
police from taking statements without having a tape-recorder rolling.
While stopping just short of requiring police to record all
interrogations, the Supreme Judicial Court said that when police fail
to record them, defendants will be entitled to a judge's instruction
that the jury should weigh unrecorded statements "with great caution
In a divided, 4-3 ruling, the court overturned an arson conviction in
a case that relied heavily on the defendant's unrecorded statements.
Valerio DiGiambattista was convicted of burning down a Newton house
owned by his former landlord in 1998. But the high court said
DiGiambattista's confession should have been suppressed because
police used trickery to obtain it and implied that he would receive
leniency if he confessed.
The court stopped short of making Massachusetts one of only a handful
of states to mandate the recording of police interrogations, but
strongly advised that police do so, saying an unrecorded confession
gives a jury a "woefully incomplete and inherently unreliable version
of what everyone recognizes as critical evidence in the case."
"When there is a complete recording of the entire interrogation that
produced such a statement or confession, the fact finder can evaluate
its precise contents and any alleged coercive influences that may
have produced it," Justice Martha Sosman said, writing for the
Some police officers predicted the ruling would make it much more
difficult for them to obtain confessions.
"When you're doing an interview, you try to form a rapport with a
person, and I think when you bring out something mechanical, it puts
a chill on the rapport. The person will just not be as forthcoming as
they would if you didn't have that microphone in front of them," said
Brockton Police Chief Paul F. Studenski.
DiGiambattista was convicted of burning a house he had recently moved
out of after numerous disputes with his landlord over living
conditions at the house.
The SJC found that police tricked him into confessing by falsely
suggesting that he had been captured at the scene of the fire on
videotape, by expressing sympathy for his actions and by telling him
he needed counseling for his alcoholism.
"In short, common sense tells us that a person being asked by an
interrogator to confess to a crime that is repeatedly described as
understandable, justifiable and not particularly serious would likely
assume that giving the requested confession will result in lenient
treatment," the court said.
The court said the police trickery by itself was not enough reason to
suppress his confession, but when combined with the implied promises
of leniency cast doubt on whether DiGiambattista made his confession
Only two state courts -- Alaska and Minnesota -- have imposed a
requirement that interrogations be recorded. Several other states,
through legislation, have imposed a recording requirement for certain
types of cases and interrogations.
Mary Jo Harris, legal adviser to the Boston Police Department, said
Boston police currently record most, but not all, interviews of
witnesses and suspects in homicide and other serious cases. But she
said police believe the high court's ruling goes too far.
"The problem we have with a decision like this is determining at what
point does an interview become an interrogation. Somebody can start
out as a witness and end up as a suspect," Harris said.
"People don't come in and say, 'I am about to confess.' This is a
process, a dialogue, and to have a rule to require tape-recorders to
come on the minute a witness comes in and sits in a chair doesn't
really take into account the kind of reality of what a custodial
State Attorney General Tom Reilly said it is not always practical to
obtain a taped confession.
"The result of this decision is that they have made it more difficult
for investigators, prosecutors and jurors," Reilly said.
But DiGiambattista's attorney, John Baccari, said recording
interviews could save the courts a lot of time and resources now used
to determine whether a statement was coerced and should be suppressed.
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"This way, when a statement is recorded, it shows all the
circumstances surrounding it, whether or not the interrogated
individual is berated, if the person asks for a lawyer," he said.
"It's all going to be on tape."