steady-hall

 Timothy P. O'Neill

October 8, 2004

 
Rip Van Winkle fell asleep in 1769 when England ruled the colonies. When he awoke in 1789, he discovered that the colonies had won their independence.  What if a modern-day Rip Van Winkle awoke from a 20-year sleep today? In the area of criminal procedure, I would suggest that one of the most startling changes has occurred in the area of police interrogations and confessions. The depth of these changes is illustrated in a new case, Commonwealth v. DiGiambattista, 442 Mass. 423 (2004). Although the case was decided by the Supreme Judicial Court of Massachusetts, I would recommend it to every criminal lawyer and judge in Chicago because it deals with two critical issues: the trend toward the electronic recording of police interrogations, as well as the increased awareness of the problem of "false confessions" caused by police trickery. It also offers an excellent review of the recent literature in these important areas of confession law. Valerio DiGiambattista lived in a rented house owned by a landlord whom he accused of failing to make necessary repairs. DiGiambattista moved his family out of the apartment in March 1998. Three days later, the house burned. Firefighters determined that the fire was set by someone who had used gasoline as an accelerant.

Police suspected DiGiambattista. One month after the fire, he voluntarily accompanied two officers to a fire station for questioning. After waiving his Miranda rights, he was told that he was considered the prime suspect. At this time, following a prearranged plan, an officer came into the room carrying two videotapes and a large folder. The police broadly hinted that, while investigating a case next door to the home, they had captured DiGiambattista on videotape starting the fire. (As a matter of fact, the folder was stuffed with blank paper and the tapes had nothing to do with DiGiambattista.) They then began to "minimize" the effect fire, noting that "no one was hurt," that DiGiambattista's anger at the landlord was "understandable" and that his conduct was probably the result of stress and drinking.

DiGiambattista at first denied any involvement with the fire. Yet during the 21/2-hour interrogation he gradually began to admit that he had been "stressed" and that he had been drinking. He eventually made a complete confession, including details concerning the size of the gas can, where he bought both the gas and the gas can, and where he disposed of the can. He was indicted for burning a house, with the state's case largely based on the confession. Yet there were problems with the confession. Records indisputably showed that on the day in question no one had bought a gas can from the store he mentioned. The gas station records showed that on the day in question no one had bought the quantity of gas he claimed to have bought. And the size of the can found at the fire was much larger than the can he described in his confession.

Despite these discrepancies, DiGiambattista was convicted.  On appeal, DiGiambattista first challenged the voluntariness of his confession. More specifically, he focused on the "calculated trickery" -- the phony file and tapes -- used to obtain it.  Massachusetts' highest court began by noting that for the last quarter of a century it has expressly disapproved of the use of trickery to obtain a confession. Yet it had never held that trickery per se invalidated a confession; rather, trickery had been considered as merely one aspect of the totality of circumstances.  Yet the court noted new scholarship and research indicating that trickery may play a large role in obtaining confessions that prove to be false. (See, e.g., Ofshe, "The Decision To Confess Falsely: Rational Choice and Irrational Action," 74 Denver U. L. Rev. 979 (1997).) This is particularly true where the police pretend to have incontrovertible evidence against a suspect, such as DNA or fingerprints. And trickery is even more dangerous when combined with promises of leniency; evidence suggests that an innocent defendant, when faced with apparently irrefutable evidence of guilt, may well conclude that it is in his best interest to confess and "make a deal" while he still can.

In this case the court found implied, if not actually express, promises of leniency. This was first accomplished by the police engaging in a process of "minimization": telling the defendant that his crime was understandable, that he was "stressed," that he had been drinking, that no one was hurt. This was compounded by police suggestions that "counseling" might be an appropriate route in his case. The court found that no single factor resulted in a finding that the confession was involuntary. But here where the blatant trickery is combined with "minimization" tactics as well as suggestions of leniency, the court held that the confession was involuntary and thus inadmissible. In a footnote, the court stressed that it was unnecessary to determine whether the confession was indeed false, but noted that there were significant discrepancies between the confession and the known facts of the crime, and that this is at least an indicator of a false confession. Id., at 439 n. 15.

The court then turned to the issue of electronic recording of police interrogations leading to a confession. The court noted that while it had never imposed an electronic recording requirement as a prerequisite to the admissibility of a confession, it had often urged police and prosecutors to consider expanding its use. It noted that two states -- Alaska and Minnesota -- have imposed a requirement that all confessions be electronically recorded. It also noted that three states -- Illinois, Maine and Texas -- and the District of Columbia have imposed a recording requirement for certain types of cases and interrogations. (The court specifically noted Illinois' statutory provision for the electronic recording of police interrogations in homicide cases. 725 ILCS 5/103-2.1.)

The court stated that it was not prepared to mandate such a change sua sponte. However, it also refused to preserve the status quo. It expressed frustration at trying to determine what occurred at an interrogation when the evidence consists solely of the officers' word against the defendant's. It held that it would be fair for the fact-finder to hold the state's failure to make a recording against the state.

Therefore, the court held that when the prosecution attempts to introduce statements of the defendant that are the product of custodial interrogation held at a place of detention (such as a police station), the lack of at least an audiotape of the complete interrogation shall entitle the defendant to obtain an instruction advising the jury that "the state's highest court has expressed a preference that such interrogations be recorded whenever practicable, and [because of the absence of a recording in this case] they should weigh evidence of the defendant's alleged statement with great caution and care." At 447-448. It held that this jury instruction should be available at the defendant's request regardless of any excuse offered by the state. At 448.
Massachusetts thus becomes the latest state to show support for the electronic recording of police interrogations. It surely will not be the last. Clearly, electronic recording of interrogations will become common-place in the criminal procedure of the 21st century.