442 Mass. 423 (August 16, 2004)

When the police do not electronically record a custodial interrogation or interrogation conducted in a place of detention, and evidence of the defendant's confession or statement is introduced into evidence, the defendant is entitled, on request, to a cautionary jury instruction concerning the use of such evidence.

The Supreme Judicial Court, troubled by tactics the police use in eliciting confessions and the effect the tactics have on the validity of a waiver and the voluntariness of statements, used this case to announce a new rule. The Court now requires, upon a defendant's request, that the judge instruct the jury that the State's highest court has expressed a preference that custodial interrogations and interrogations conducted in a place of detention be electronically recorded whenever practicable. The instruction should advise the jury that in the absence of any recording, "they should weigh evidence of the defendant's alleged statement with great caution and care." Furthermore, "(w)here 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."

In announcing this new requirement, the SJC noted that nothing in the instruction alters the overarching requirement that voluntariness be determined by the totality of the circumstances. The instruction is meant to focus the jury's attention to the fact that instead of presenting the jury with evidence of the "totality," the Commonwealth presented them with the interrogator's abbreviated and highly selective recollection of the circumstances.

The Court's ruling does not require the prosecutor to introduce the entirety of a recorded interrogation into evidence to avoid the cautionary instruction. "Rather, the instruction is predicated on the failure to preserve the evidence in the first place, not by failure to introduce it."