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Comm. v. DiGiambattista (8/16/04) requires that “when the prosecution introduces evidence of a defendant's confession or statement that is the product of a custodial interrogation or an interrogation conducted at a place of detention (e.g., a police station), and there is not at least an audiotape recording of the complete interrogation, the defendant is entitled (on request) to a jury instruction advising that the State's highest court has expressed a preference that such interrogations be recorded whenever practicable, and cautioning the jury that, because of the absence of any recording of the interrogation in the case before them, they should weigh evidence of the defendant's alleged statement with great caution and care.”

This means that whenever an officer interrogates someone who is

1. in custody (for the purposes of Miranda) no matter where they are OR
2. at a police station or other “place of detention.” (custody does not matter)

A complete recording of the interrogation must be made.

The critical question in making the custody determination is 'whether, considering all the circumstances, a reasonable person in the defendant's position would have believed that he was in custody. Commonwealth v. Sneed, 440 Mass. 216, 220 (2003), quoting Commonwealth v. Brum, 438 Mass. 103, 111 ( 2002). In making the custody determination, we examine four factors: (1) the place of the interrogation; (2) whether the police conveyed any belief or opinion that the person being questioned was a suspect; (3) whether the questioning is aggressive or informal; and (4) whether the suspect was free to end the interview by leaving the place of interrogation, or whether the interview ended with the defendant's arrest. Remember if the suspect is at a police station or other place of detention, it does not matter whether he or she is in custody or not; the recording requirement applies.

Individuals who do not wish to be recorded should be advised that recording equipment is available for use if they change their mind. A written “recorded statement” waiver should be obtained.
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