A divided Massachusetts Supreme Judicial Court ruled 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, says the Boston Globe. A 4-to-3 majority 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 Massachusetts high court, which has long expressed frustration when police do not tape statements, stopped short of issuing a mandate. 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. In a strong 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,” he said.