Appellant McCowen Brief - Mass Cases

to point out to the jury that the party with the burden
of proof has ... decided not to preserve evidence of that
interrogation in a more reliable form, and I they may
consider that fact as part of their assessment of the
less reliable form of evidence that the Commonwealth has
opted to present.
a. at 449. Nearly fifteen years after Diaz and six
years after DiGiambattista, McCowen respectfully
suggests the time has come: the fruits of an unrecorded
interrogation should be inadmissible at trial.
Alaska was first to require electronic recording in
felony cases. Stephan v. State, 711 P.2d 1156 (1985).
Since then, six states and the District of Colurnbia have
required police to record interrogations in at 'Least
some criminal cases. Most allow police to record
surreptitiously. where permission is requirrtd, most
suspects consent, If the ihnterrogation is lakful, no
valid challenge to admissibility exists and a major
cause of wrongful convictions is eradicated. The Alaska
Supreme Court noted: "[a] recording ... will aid law
enforcement ... by confirming the content and the
voluntariness of a confession, when a defendant: changes
his testimony or claims falsely that his constitutional
rights were violated." Stephan, supra at 1161. An
objective recording makes it unnecessary to rely on
selective , potentially biased accounts of what occurred.
It opens police practices to scrutiny and renders
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