Michael DiStefano offers insights on proposed legislation addressing false confessions
Legislation pending before the Massachusetts Legislature would presumptively exclude evidence derived from “deceptive” tactics employed by law enforcement during custodial interrogations of juveniles and adults.
Michael R. DiStefano in a news article published by Massachusetts Lawyers Weekly indicated that while the proposed law is a step in the right direction, individuals are better served having counsel present during interrogations.
“As a criminal defense attorney, I can’t envision a scenario where I would ever want a client speaking without me being present,” Mr. DiStefano told the publication. “Investigators want to develop a rapport and put the suspects at ease. One thing they’ll often say at the beginning of an interview is, ‘Look, this is an opportunity to help yourself.’ Someone who is in a scenario they’ve never been in before and who’s thinking about all the worst-case scenarios, will be thinking to themselves that if they say everything that is the truth, and they didn’t do anything wrong, that they’ll just walk out the door. It’s not that simple. There’s a lot of strategy involved on both sides of the table.”
The proposed legislation would allow the state to rebut a presumption of inadmissibility if it can prove beyond a reasonable doubt that the statement in question was voluntary, reliable, and not a byproduct of any deception.
Mr. DiStefano, a former prosecutor, questioned how the provision providing the state an avenue to rebut the presumption of inadmissibility might work in practice.
“If the court concludes that there was deception,” Mr. DiStefano said, “how does the court tease out whether the statement was not a byproduct of the deception beyond a reasonable doubt? It seems to me that would be a difficult process.”
A partner at the firm, Mr. DiStefano concentrates his practice in the areas of white-collar investigations and criminal defense, including defending clients at trial and in pre-indictment government investigations.