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August 17, 2004 - The Boston Globe (MA)

SJC Rules On The Use Of Confessions

Directs Judges On Jury Instructions

By Jonathan Saltzman and John Ellement, Globe Staff

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The state's highest court ruled yesterday 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.

In a 4-to-3 decision with broad implications for police investigations, the Supreme Judicial Court said that if defendants request it, judges must tell juries that the high court wants statements to be recorded "whenever practicable" and that the absence of recordings is evidence to be weighed "with great care and caution."

Alaska and Minnesota are the only states where high courts have ordered police to tape interrogations to prove that confessions were voluntary. Without videotapes or audiotapes in those states, defendants can seek to have statements excluded from trial.

Illinois, Maine, Texas, and the District of Columbia have laws that require taping under certain circumstances.

The SJC, which has long expressed frustration when police do not tape statements, stopped short of issuing a mandate, as some defense lawyers had urged. However, in directing trial judges to highlight the absence of tapes when giving jury instructions, the court put teeth into a policy it announced eight years ago allowing defense lawyers to bring up the issue during closing arguments.

"There is no dispute that the evidence of a defendant's alleged statement or confession is one of the most significant pieces of evidence in any criminal trial," Justice Martha B. Sosman wrote for the majority. "When there is a complete recording of the entire interrogation that produced such a statement or confession, [jurors] can evaluate its precise contents and any alleged coercive influences that may have produced it."

Conversely, when "interrogating officers have chosen not to preserve an accurate and complete recording of the interrogation, that fact alone justifies skepticism of the officers' version of events, above and beyond the customary bases for impeachment of such testimony," the majority said.

Siding with Sosman in the majority opinion were Chief Justice Margaret H. Marshall and Justices Roderick L. Ireland and Robert J. Cordy.

In a strongly worded dissent, Justice John M. Greaney said the jury instructions approved by the court are "far too intrusive" and will probably cause jurors to reject unrecorded statements to police.

"In the absence of a firm basis to suspect police misconduct as widely prevalent, there is no reason to require jury instructions that will tilt the playing field unfairly against the Commonwealth," Greaney wrote.

Greaney was joined by Justices Francis X. Spina and Judith A. Cowin

Defense lawyers and some legal specialists praised the ruling, saying it will encourage police to routinely tape interviews to avoid judges issuing jury instructions that cast doubt on the reliability of a defendant's statements.

"It's not Miranda," said David M. Siegel, professor at New England School of Law, referring to the US Supreme Court's landmark 1966 decision requiring officers to read suspects their rights. "But as law enforcement agencies think about their policies for conducting investigations, it certainly should weigh heavily on the side of making taped interrogations routine matters."

Siegel, who called for mandatory taping in a friend-of-the-court brief filed on behalf of Suffolk Lawyers for Justice Inc. and the New England Innocence Project, said the project's national headquarters has estimated that nationwide about 14 percent of the 148 criminal defendants exonerated through DNA evidence since 1989 had been wrongly convicted in part on the basis of confessions. Some were coerced, Siegel said.

Since 1982, at least 23 prisoners in Massachusetts have been freed based on new evidence that they were wrongly convicted, according to the project, which specializes in using DNA testing to reverse wrongful convictions. Although none of those prisoners confessed to crimes they had not committed, police in at least two cases contended that defendants made incriminating statements, Siegel said. If the statements had been recorded, he said, some of those defendants might not have been convicted.

John A. Baccari, a longtime criminal defense lawyer, lauded the ruling, saying that the jury instructions represent "a little bit of dynamite" that could help defendants. The SJC made its ruling after Baccari appealed an arson conviction of a former Newton resident who said his confession should have been suppressed because of police deception. The high court reversed the conviction.

The SJC's push for tape recording drew a decidedly mixed reaction from prosecutors and police, though some police departments already tape-record some suspects.

Several law enforcement officials contended that the recording may interfere with interview techniques that typically coax defendants to talk and that as soon as police hit the record button, defendants will stop talking, derailing criminal investigations. Massachusetts law requires defendants to give their consent before being taped by police.

"In my experience as a prosecutor, we always preferred taped confessions," Attorney General Thomas F. Reilly said in a statement. "As a practical matter, it is not always possible to obtain one. . . . The result of this decision is that they have made it more difficult for investigators, prosecutors, and jurors."

John M. Collins, general counsel of the Massachusetts Chiefs of Police Association, agreed and predicted dire consequences. "From now on, whenever a district attorney has a serious case and they have a confession that was not tape-recorded, my guess is they will think twice about going to trial and will offer ridiculous deals on a plea bargain," he said.

Mary Jo Harris, legal counsel for the Boston Police Department, said officers already audiotape witnesses and suspects in major crimes such as homicide and sexual assault, but she said the SJC's ruling was overly broad because it appeared to apply to every criminal case, including misdemeanors. She also objected to the tone of the majority opinion, saying that it presumes that officers routinely engage in misconduct.

But several law enforcement officials predicted that the ruling will help them convict criminals.

Police Chief Frank Garvin of Chelsea praised the ruling and said his department is ready to audiotape or videotape interrogations. As a former homicide investigator, he said he always tried to tape interrogations. "There was nothing more devastating than to play a tape of that in the court," he said. "It was so dramatic to hear the person's own voice say what happened. . . . This is excellent. I always thought it was best thing to do and still do."

© Copyright 2004 The New York Times Company

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