Instruction 3.560, Criminal Model Jury Instructions for Use in the District Court

CONFESSIONS AND ADMISSIONS (HUMANE PRACTICE)

You have heard testimony about a statement allegedly made by the

defendant concerning the offense which is charged in this case. Before

you may consider any such statement, you are going to have to make a

preliminary determination whether it can be considered as evidence or not.

You may not consider any such statement in your deliberations unless,

from all the evidence in the case, the Commonwealth has proven beyond a

reasonable doubt that the defendant made the statement that he (she) is

alleged to have made, and that he (she) made it voluntarily, freely and

rationally.

In determining whether or not any statement made by the defendant

was voluntary, you may consider all of the surrounding circumstances.

You may take into account the nature and duration of any conversations

that the police officers had with the defendant. You may consider where

and when the statement was made.

You may consider any evidence you have heard about the defendant’s

physical and mental condition, his (her) intelligence, age, education, and

experience.

If the statement was made in a place of detention or while in custody and not recorded, the judge

must give the following instruction as well as instruction 3.820 for unrecorded statements.

You may also consider the absence of a (complete) recording of

the defendant’s statement. The absence of a recording permits,

but does not compel, you to conclude that the Commonwealth

has failed to prove voluntariness beyond a reasonable doubt.

Commonwealth v. DiGiambattista, 442 Mass. 423, 448-449 (2004)

Your decision does not turn on any one factor; you must consider the

totality of the circumstances.

Commonwealth v. Lahti, 398 Mass. 829, 830-833 (1986), cert. denied, 481 U.S. 1017 (1987) (false

police promises of leniency rendered statement involuntary); Commonwealth v. Wills, 398 Mass. 768,

776-777 (1986) (defendant need not be told why being questioned for statement to be voluntary);

Commonwealth v. Parham, 390 Mass. 833, 840 (1984); Commonwealth v. Garcia, 379 Mass. 422,

431-432 (1980) (language problem may render statement involuntary); Commonwealth v. Meehan,

377 Mass. 552, 564-565 (1979), cert. dismissed, 445 U.S. 39 (1980) (police may promise to bring

defendant's cooperation to attention of authorities, but direct or indirect assurance that cooperation

will result in a lesser sentence renders statement involuntary).

Although the Supreme Court has held that a confession can be involuntary in a due process sense

only if it was the product of police coercion, and not solely because of a defendant's mental condition,

Colorado v. Connelly, 479 U.S. 157, 163-167 (1987), Massachusetts law that the defendant’s mental

or physical condition alone can invalidate a confession is drawn from common law as well as Federal

constitutional sources, and appears to have been affirmed subsequent to Connelly. Commonwealth

v. Waters, 399 Mass. 708, 711-714 (1987).

If there is evidence of intoxication or compromised mental condition. If there is evidence of

(the defendant having a compromised mental state) (and) (or) (that he /she

was under the influence of drugs or alcohol), you must take special care in

determining whether any statement was the product of the defendant’s

rational intellect and free will.

It is not enough that the statement was voluntary in the sense that it

was not forced or tricked out of the defendant by physical intimidation or

psychological pressure. It must also have been made freely and rationally.

Obviously, a person cannot give up a valuable right freely if his brain is so

clouded that he is not thinking straight. If you conclude that (the

defendant’s mental state) (and) (or) (the level of intoxication from drugs)

(and) (or) (the level of intoxication from alcohol) ( [other relevant factor] ) had

rendered the defendant incapable of understanding the meaning and effect

of his (her) statement, or incapable of withholding it, then you must exclude

the defendant's statement from your deliberations as being involuntarily

given.

However, (one’s compromised mental state) (and) (or) (intoxication)

does (do) not automatically make an otherwise voluntary act involuntary.

You must look to all the circumstances to determine whether any statement

was made freely and rationally.

The "meaning and effect" terminology in the model instruction is taken from Commonwealth v.

Vasquez, 387 Mass. 96, 100 n.8 (1982). The "incapable of withholding" language is drawn from

Commonwealth v. Paszko, 391 Mass. 164, 177 (1984).

Commonwealth v. Shipps, 399 Mass. 820, 826 (1987) (“special care” required where alcohol or

drugs used, but no per se rule); Paszko, 391 Mass. at 175-178 (drug withdrawal may render

statement involuntary, but no per se rule); Commonwealth v. Louraine, 390 Mass. 28, 39 (1983)

(evidence of insanity required humane practice even for spontaneous pre-arrest statements);

Vasquez, 387 Mass. at 100-101 (statement by psychotic not involuntary per se unless it would not

have been obtained but for the psychosis); Commonwealth v. Cameron, 385 Mass. 660, 665

(1982) (some custodial interrogation constitutionally permissible for a normal adult may be

impermissible for an intellectually disabled person, though no per se rule); Commonwealth v. Vick,

381 Mass. 43, 46 (1980) (humane practice required sua sponte even where evidence of insanity

offered after statement was introduced in evidence); Commonwealth v. Brady, 380 Mass. 44, 52

(1980) (alcohol intoxication may render statement involuntary, but no per se rule); Commonwealth

v. Chung, 378 Mass. 451, 457 (1979) (any evidence of insanity at time of statement requires

humane practice).

At judge’s option. The reasons for this rule are probably

obvious to all of you. Experience tells us that when a statement

is involuntary, it is most often unreliable as well. Also, our

society has long held a strong conviction that we should not

take advantage of a person who is physically or mentally

incapable of deciding freely whether or not to speak.

Commonwealth v. Paszko, 391 Mass. 164, 177 (1984), quoting from Blackburn v.

Alabama, 361 U.S. 199, 207 (1960).

Individual Juror Determination of Voluntariness Each juror must determine whether the

Commonwealth has proven beyond a reasonable doubt that any statement

that the defendant made about the offense was made voluntarily, freely and

rationally. If any juror is not convinced beyond a reasonable doubt that the

statement was voluntary, that juror may not use the statement as evidence

in coming to his or her own conclusion about whether the Commonwealth

has proved the charge beyond a reasonable doubt. If the Commonwealth

has met that burden, then you may consider the defendant's statement, and

rely on it as much, or as little, as you think proper, along with all the other

evidence.

Massachusetts “humane” practice requires that when a defendant’s confession or admission is

offered in evidence, the judge must initially decide at a preliminary hearing in the absence of the jury

whether the Commonwealth has proved beyond a reasonable doubt that the statement was voluntary.

If not, the judge must exclude it. If the statement is admitted, the judge must then resubmit the issue

of voluntariness to the jury by instructing that each juror is not to consider the defendant’s statement

unless, on all the evidence in the case, that juror is satisfied beyond a reasonable doubt that it was

the defendant's free and voluntary act. The jury should not be told of the judge’s preliminary

determination of voluntariness. Commonwealth v. Tavares, 385 Mass. 140, 149-153, cert. denied,

457 U.S. 113 (1982); Harris v. Commonwealth, 371 Mass. 478, 481 n.3 (1976). See also

Commonwealth v. Hunter, 416 Mass. 831, 834 (1994) (humane practice also applies to statements

to private citizens); Commonwealth v. Dyke, 394 Mass. 32, 37-38 (1985) (Tavares requirement that

voluntariness be shown beyond a reasonable doubt is not retroactive); Commonwealth v. Brown, 386

Mass. 17, 31-32 (1982). The judge’s preliminary determination of voluntariness “must appear from

the record with unmistakable clarity.” Sims v. Georgia, 385 U.S. 538, 544 (1967); Johnson v. Denno,

378 U.S. 368, 391-394 (1964).

Tavares does not require that the jury as a whole must agree unanimously beyond a reasonable

doubt that a defendant’s statement is voluntary before it can be considered as evidence. The judge

need only instruct that each juror individually should determine whether the statement was given

voluntarily, and if a juror is not convinced beyond a reasonable doubt that the statement was

voluntary, that juror should not use the statement as evidence in coming to his or her own conclusion

as to whether the Commonwealth has proved the charged crimes beyond a reasonable doubt.

Commonwealth v. Watkins, 425 Mass. 685, 691-692 (1997).

If voluntariness is a live issue at trial, the judge must sua sponte conduct a preliminary hearing and

then submit the question to the jury, even without a request from the defendant. Commonwealth v.

Parham, 390 Mass. 833, 841-842 (1984); Commonwealth v. Cartagena, 386 Mass. 285, 286-287

(1982); Commonwealth v. Van Melkebeke 48 Mass. App. Ct. 364, 367 (1999); Commonwealth v.

Bandy, 38 Mass. App. Ct. 329, 331 (1995). This sua sponte obligation applies only if voluntariness

was a live issue before the jury, even if the judge heard conflicting evidence on voluntariness on voir

dire. Commonwealth v. Anderson, 425 Mass. 685, 691-692 (1997).

For a fuller discussion of humane practice and other issues related to confessions and admissions,

see Jury Trial Manual for Criminal Offenses Tried in the District Court § 2.47.

Evidence of the circumstances surrounding a confession is relevant to credibility as well as

voluntariness, and therefore may not be excluded by the trial judge even where the judge has denied

the defendant's motion to suppress his confession as involuntary, and the jurisdiction does not require

humane practice. Crane v. Kentucky, 476 U.S. 683, 688 (1986).

SUPPLEMENTAL INSTRUCTIONS

2. Relevance of Miranda warnings. When the police take a person

into custody, they must give him (her) certain warnings before

any statements he (she) makes in response to interrogation will

be admissible in evidence. You have probably heard of them;

they are called Miranda warnings, after the name of the case in

which the Supreme Court held that such warnings are required.

They are relevant here because you may consider whether the

Miranda warnings were given and understood, as part of your

determination of whether any statement the defendant made was

voluntary. There are four such warnings – a person must be

advised: [1] that he (she) has a right to remain silent; [2] that

anything he (she) says can be used as evidence against him

(her) in court; [3] that he (she) has the right to the presence of

an attorney during questioning; and [4] that if he (she) wants an

attorney but cannot afford one, the state will provide an attorney

for him (her) at no cost. The police may give a fifth warning,

which is optional: that if the person decides to answer any

questions, he (she) has the right to stop the questioning at any

time.

In determining whether a statement was voluntary, you

may consider whether these warnings were given and

understood, along with the other factors I have mentioned.

The “fifth Miranda warning” regarding termination of questioning at any time is good

police practice but not required. Commonwealth v. Lewis, 374 Mass. 203, 205

(1978).

Initially, compliance with Miranda v. Arizona, 384 U.S. 436 (1966), is a prerequisite

for admissibility and a question of law for the judge, who must be convinced beyond

a reasonable doubt that the defendant received and waived Miranda rights before

any statements in response to custodial interrogation may be admitted in evidence.

Commonwealth v. Tavares, 385 Mass. 140, 145 (1982); Commonwealth v. Day, 387

Mass. 915, 923 (1983); Garcia, 379 Mass. 422, 431 (1980) (valid waiver does not

require that in hindsight the defendant would still speak with police, only that police

procedures must scrupulously respect defendant's free choice made with actual

knowledge of rights); Commonwealth v. Dustin, 373 Mass. 612, 616 (1980)

(statements not in compliance with Miranda must be excluded even if voluntary and

reliable).

Contested questions of Miranda compliance are not to be submitted to the jury for

decision, but evidence on whether the warnings were given and whether rights were

validly waived is relevant to the jury’s overall determination of voluntariness.

Tavares, 385 Mass. at 153 n.19. Where Miranda warnings were given but were not

required, it is within the judge’s discretion whether to permit evidence of the warnings

to be considered by the jury on the issue of voluntariness. Commonwealth v.

Nadworny, 396 Mass. 342, 368-370, cert. denied, 477 U.S. 904 (1986).

4. Impeachment of defendant by otherwise inadmissible statement. You have

heard some evidence that in the past the defendant may have

made a statement which is alleged to be inconsistent with the

testimony he (she) has given in this case. If it has been proved

to you that the defendant made such a statement voluntarily,

you may consider it solely to assist you in evaluating the

defendant’s credibility as a witness in this trial.

When you evaluate how reliable any witness is, you may

take into account whether that witness made any earlier

statement that differs in any significant way from his present

testimony at trial. It is for you to say how significant any

difference is.

You may not consider any such statement as any evidence

of the defendant’s guilt. You may not take any such statement

as positive evidence of any fact that is mentioned in it, and you

must not draw any inference of guilt against the defendant if you

find that he (she) made such a statement. The prior statement is

relevant only as to your determination of whether to believe the

defendant’s present testimony in court.

This supplemental instruction may be used when the defendant’s confession or

admission was suppressed for lack of Miranda compliance and therefore was not

introduced in the Commonwealth's case-in-chief, the defendant then testified in his

or her own behalf, and the Commonwealth seeks in rebuttal to impeach the

defendant's testimony by offering the otherwise inadmissible confession or

admission as a prior inconsistent statement. Commonwealth v. Britt, 358 Mass. 767,

770 (1971); Commonwealth v. Simpson, 300 Mass. 45, 55-56 (1938), cert. denied,

304 U.S. 565 (1940).

This supplemental instruction should not be used when the defendant’s confession

or admission is introduced as substantive evidence.

A defendant may be impeached with a prior inconsistent statement that was not

obtained in compliance with Miranda if it is voluntary and otherwise trustworthy.

Harris v. New York, 401 U.S. 222, 224 (1971); Commonwealth v. Harris, 364 Mass.

236, 238-241 (1973). But an involuntary statement may not be introduced even for

impeachment purposes. Mincey v. Arizona, 437 U.S. 385 (1978). It is an open

question whether the judge must sua sponte conduct a voir dire as to voluntariness

when a statement is offered only for impeachment purposes. Commonwealth v.

Nicholson, 20 Mass. App. Ct. 9, 14 (1985).