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August 16, 2004
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Mass. High Court Urges Police To Record Confessions

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 and care."

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 majority.

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 voluntarily.

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 interview is."

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.

Associated PressCopyright 2014 Associated Press. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

"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."






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