Unrecorded Custodial Interrogation

UNRECORDED CUSTODIAL INTERROGATION

Read here a Boston 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.

Since the advent the case referenced above, the courts have continued to address unrecorded custodial interrogation. The case protects all involved. So, if done correctly, it protects both the police and the defendant.

What is an unrecorded custodial interrogation?

In court, lawyers present evidence that there was no recording of the complete interrogation.

The Supreme Judicial Court prefers recorded interrogations of a person taken into custody.

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

Jurors weight a defendant’s alleged statement with great caution and care.

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.

The jury also considers any evidence concerning whether the defendant had opportunity for a recorded interrogation.

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

There is a preference for recordings during custodial interrogation.

Note that custodial interrogation consists of questioning by law enforcement officers after taken into custody. This depends on whether a reasonable person in the defendant’s shoes believes that they were not free to leave.

Note also that jury instruction on the legal niceties of unrecorded custodial interrogation must be provided. The prosecution addresses any reasons or justifications explaining 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.

When a defendant has their interrogation recorded is the jury 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 necessary?

Courts do not require the unrecorded custodial interrogation jury instruction.

In Commonwealth v. Issa the court affirmed that 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.

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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