UNRECORDED CUSTODIAL INTERROGATION

UNRECORDED CUSTODIAL INTERROGATION

This blog post will answer the following questions on an unrecorded custodial interrogation:

  • What is an unrecorded custodial interrogation?
  • What evidentiary weight does evidence of an unrecorded custodial interrogation provide?
  • What are the limitations, if any, to the preference of recording as requested by the courts?
  • Does the absence of an electronic recording factor into determining the voluntariness of a defendant’s statement in the totality of the circumstances?
  • When a defendant is given the opportunity to have his or her interrogation recorded, does the jury need to be advised that they may consider whether the defendant voluntarily chose not to have a recording made?
  • In witness interviews where a defendant is not a suspect, is a jury instruction on unrecorded custodial interrogation required?

What is an unrecorded custodial interrogation?

In court, evidence can be presented that there was no recording of the complete interrogation of the defendant conducted while he or she was in custody or at a place of detention.

The highest court in Massachusetts, the Supreme Judicial Court, has expressed a preference that interrogations of a person taken into custody by law enforcement be recorded whenever practicable.

What evidentiary weight does evidence of an unrecorded custodial interrogation provide?

Since there is no complete recording of an interrogation, evidence of a defendant’s alleged statement should be weighed with great caution and care by jurors.

The reason for this is that the Commonwealth may have had the ability to reliably record the totality of the circumstances upon which it asks jurors to determine beyond a reasonable doubt that the defendant’s statement was voluntary, but instead is asking the jury to rely on a summary of those circumstances drawn from the possibly fallible or selective memory of its witnesses.

In evaluating the significance of the lack of a recording in a case, the jury can also consider any evidence concerning whether the defendant was given an opportunity to have his or her interrogation recorded, and whether the defendant voluntarily elected not to have the interrogation recorded.

What are the limitations, if any, to the preference of recording as requested by the courts?

 While the Commonwealth always bears the burden of proving beyond a reasonable doubt that a statement is voluntary, the preference for recording is limited to statements made during custodial interrogation or interrogation conducted at a place of detention (e.g. a police station or jail cell).

Note that custodial interrogation consists of questioning by law enforcement officers after a person has been taken into custody or deprived of his or her freedom in any significant way. Whether a defendant is in custody at any moment depends on whether a reasonable person in the defendant’s shoes would have believed that he or she was not free to leave.

Note also that jury instruction on the legal niceties of unrecorded custodial interrogation must be provided whether or not the prosecution offers reasons or justification for the lack of recording. The prosecution is permitted to address any reasons or justifications that would explain why no recording was made, leaving it to the jury to assess what weight they should give to the lack of a recording.

Does the absence of an electronic recording factor into determining the voluntariness of a defendant’s statement in the totality of the circumstances?

 The absence of an electronic recording is only ONE factor to be considered in determining the voluntariness of a defendant’s statement in the totality of the circumstances.

When a defendant is given the opportunity to have his or her interrogation recorded, does the jury need to be advised that they may consider whether the defendant voluntarily chose not to have a recording made?

 YES, when a defendant is given the opportunity to have his or her interrogation recorded, the jury should be advised that they CAN consider whether the defendant voluntarily chose not to have a recording made.

In witness interviews where a defendant is not a suspect, is a jury instruction on unrecorded custodial interrogation required?

The unrecorded custodial interrogation jury instruction is not required for unrecorded witness interviews of non-suspects.

This has been affirmed in one case, Commonwealth v. Issa, where the police did not electronically record the volunteered statement by an uncharged defendant who appeared unexpectedly at the police station to discuss the victim’s demise shortly after her death. The defendant was not a suspect at the time of the interview.

Read here aBoston Globe article on Attorney Barabino’s role in the litigation of the Massachusetts Supreme Judicial Court case that resulted in the ruling that judges should begin instructing juries in criminal trials to be skeptical when police fail to tape-record confessions or statements made by defendants in custody.

IF YOU OR A LOVED ONE HAVE BEEN CHARGED WITH A CRIME, AND YOU NEED AN EXPERIENCED CRIMINAL DEFENSE LAWYER WORKING ON YOUR SIDE TO PROTECT YOUR RIGHTS, PLEASE CONTACT CRIMINAL DEFENSE ATTORNEY WILLIAM J. BARABINO.

CALL 781-393-5900 TO LEARN MORE ABOUT YOUR AVAILABLE DEFENSES.

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