In Commonwealth v. Alleyne, ___ Mass. ___ (2016), the Supreme Judicial Court clarified that police officers do not need a suspect’s permission to record the suspect’s interview as long as the suspect has actual knowledge of the recording. The Court recommended that police departments do away with their interview forms that advise a suspect of a right to refuse recording and that require the suspect to initial a choice whether or not to permit recording. According to the Court, “… the better practice going forward is simply to advise suspects of the recording instead of requesting permission to record.”
Arrested in Texas in August 2010 in connection with the murder of his wife in Framingham about one week earlier, the defendant waived extradition and returned to Massachusetts where he gave an interview to investigators at the Framingham police station. He “pretty emphatically” told the officers that he did not want the interview recorded. The officers did not record the defendant making his refusal to having the interview recorded, as did the officers in Commonwealth v. Rousseau, 465 Mass. 372, 392 (2013). Instead, they had him initial an interview form specifying his choice whether to record or not record the interview. The judge admitted the form into evidence at the trial, and instructed the jury according to the requirements of the case of Commonwealth v. DiGiambattista, 442 Mass. 423, 447-48 (2004), regarding the absence of a recording. The judge also added that the defendant had a right to refuse the recording. On appeal, among other issues, the defendant challenged those jury instructions and argued that there is no right to refuse the recording, and the Court should therefore exclude all interrogations that are unrecorded.
The Court rejected all of the defendant’s arguments and affirmed the conviction. On this particular issue, it cautioned judges not to instruct that a defendant has a right to refuse the recording. It reiterated its approval of the instruction from Rousseau that the jury consider whether the police afforded the defendant the opportunity to have the interrogation recorded and whether the defendant elected voluntarily not to have it recorded. The Court then went on to advise police that it made more sense not to afford that choice to suspects, but to simply advise the suspect that the interview was being recorded because permission to record is not needed. Police need only provide notice of the recording of the interview to the suspect.