Altered Digiambatista Jury Instruction Ruled Harmless Error

The Appeals court on 4/22/2010 ruled in COMMONWEALTH vs. LUIS DRUMMOND 76 Mass.App.Ct. 625 (2010) that it was harmless error that, although the instructions were given to a jury under Digiambatista, the trial judge blunted the impact of the instruction by telling jurors they could disregard them if they found that the defendant had in essence declined to have the interrogation recorded after being advised of his right to have that done. The judge also omitted the second half of the instruction, which allows but does not compel jurors to find that a confession was involuntary if it was not recorded.

In deciding the case the court stated “The DiGiambattista instruction. Because the defendant did not lodge an objection, we review to determine whether the judge’s instructions created a substantial risk of a miscarriage of justice. See Commonwealth v. Peppicelli, 70 Mass. App. Ct. 87, 95 (2007). An erroneous jury instruction poses such a risk if it “materially influence[d]” the jury’s verdict. Commonwealth v. Alphas, 430 Mass. 8, 13 (1999), quoting from Commonwealth v. Freeman, 352 Mass. 556, 564 (1967).

the Supreme Judicial Court held 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 . . . .” DiGiambattista, 442 Mass. at 447. Such an instruction is to advise jurors that “the State’s highest court has expressed a preference that such interrogations be recorded whenever practicable,” and 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.” Id. at 447-448. In cases “[w]here voluntariness is a live issue and the humane practice instruction is given, the jury should also be advised that the absence of a recording permits (but does not compel) them to conclude that the Commonwealth has failed to prove voluntariness beyond a reasonable doubt.” Id. at 448, citing Commonwealth v. Cryer, 426 Mass. 562, 571 (1998).

a. The conditional instruction. The judge told the jurors that they only needed to consider the instruction if they found that the defendant “was not advised of a right to have this statement recorded and that he did not decline the recording.” There is nothing in DiGiambattista that permits the required instruction to be made conditional in this fashion. The court’s decision did not create a new right for a defendant to assert or forgo. Instead, focusing on the benefits to the Commonwealth, the defendant, the court, and the jury that recorded statements would inevitably provide, the court said, clearly and unequivocally, that “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” (emphasis supplied). DiGiambattista, 442 Mass. at 447-448.

The multi-faceted benefits recordings provide also led the court to conclude that “the instruction is appropriate for any custodial interrogation, or interrogation conducted in a place of detention, without regard to the alleged reasons for not recording that interrogation” (emphasis supplied).Id. at 448. Particular reasons why an interrogation was not recorded are for the jury to weigh when they consider, after hearing the instruction, evidence of what the Commonwealth contends the defendant said to police. As the court explained, “[i]t is of course permissible for the prosecution to address any reasons or justifications that would explain why no recording was made, leaving it to the jury to assess what weight they should give to the lack of a recording. The mere presence of such reasons or justifications, however, does not obviate the need for the cautionary instruction.” Id. at 448-449. The judge’s limiting language ignored this clear directive and stripped the instruction of at least some of its force. As given, the instruction was incorrect.”


The Judges error in advising the jury in this case was ruled a “Harmless Error” due to the formidable amount of evidence that the Commonwealth had against the Defendant making it mute. Digiambatista, absent a recording of the interrogation allows for the jury instruction that allows the jury to infer (NOT compel as some defense Attorneys like to imply) that the voluntariness of the confession or admission was absent.

Attorney Ronald A. Sellon

About Attorney Ronald A. Sellon

Ronald A. Sellon is a licensed Attorney in the state of Massachusetts and U.S. District Court, Massachusetts as well as a Sergeant with a Municipal Police Department and U.S. military Veteran. Additionally, he has taught Criminal Procedure at the Massachusetts State Police Academy in New Braintree and has written a text on Criminal Procedure for police field training officer programs. He is a graduate of the FBI National Academy, was a 2008 recipient of the Massachusetts Coalition of Police (Mass C.O.P.) Presidents award and holds a Bachelors Degree in Law Enforcement, a Masters Degree in Criminal Justice Administration, and a Juris Doctor Law Degree. Questions related to content material may be directed to
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