Supreme Judicial Court (April 18, 2006)

A DSS investigator, who during the course of a 51B investigation questioned a defendant about the crime for which he was already charged without his attorney present, was acting as a government official and was therefore conducting the equivalent of direct police interrogation in violation of the defendant's Sixth Amendment right to assistance of counsel.

The defendant was charged with forcible rape of a child and indecent assault and battery on his 14 year-old niece. The DSS worker, who conducted the 51B investigation, interviewed the defendant without his attorney present. During the interview, the worker repeatedly asked the defendant whether he had a sexual relationship with his niece. The DSS worker wrote a report that included an incriminating statement made by the defendant during the interview. The report was forwarded to the district attorney's office in accordance with c. 119, §51B. At trial, the defendant's incriminating statement was admitted into evidence.

The SJC held that the statement should have been suppressed. While the court acknowledged that the DSS investigator conducted the interview in furtherance of her responsibilities for the care and protection of children, the interview was "prohibited governmental interrogation and constituted the equivalent of direct police interrogation." "Our primary concern. . . remains with the constitutional implications of questioning on matters concerning pending charges posed by persons whose official duties direct them to interact with a defendant and who may be required to turn any incriminating responses over to the police and prosecutor . . . . " The court stressed that it will "not tolerate interrogation practices by government officials or their agents that will provide the prosecution with the equivalent of direct police interrogation."