Appellant McCowen Brief - Mass Cases

(whether the defendant or the police), and the details
of the interrogation, including Miranda warnin(;s.
Cmonwealth v. Mandile, 397 Maes. 410, 413 (19186). The
Conunonwealth bears the heavy burden of proving a
statement voluntary beyond a reasonable doubt, a burden
even more daunting when police fail to record the
interrogation:
[A] judge may reasonably conclude that when the party
with the burden of proof beyond a reasonable doubt on the
issues of voluntariness and waiver deliberately fails to
utilize readily available means to preserve the best
evidence of what transpired .- it has not met that very
high standard of proof.
Commonwealth v. DiGiambattista, 442 Mass. 423, 441
(2004). The Court noted eight years had passed since it
announced "[flailure to record ... would not result in
automatic suppression ... [but] the lack of a recording
was ... relevant .__ on the issues of voluntariness and
waiver." Id. citing Commonwealth v. Diaz, 422 ass. 269,
273 (1996).
The DiGiambattista Court invited the parties and
amici to brief "the issue of requiring elkectronic
recording of interrogations," 3. at 440, noted two
states did, but declined to follow suit at that time:
Despite our view that recording I
would
improve the
efficiency, accuracy, and fairness of criminal
proceedings, we still decline at this time to make
recording .- a prerequisite to -. admissibility _. FIOweVer,
where I. recording i s Left to the unfettered discretion
of law enforcement (as it is at present), and an officer
has chosen not to record ... we think that it is only fair
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