humane practice instruction in Massachusetts

2025The judge instructed that the jury's interpretation of the meaning of the defendant's statements controlled, not Sergeant Vivori's interpretation, and also gave a humane practice instruction requiring the jury to determine if the defendant's statements were voluntary, see Commonwealth v. Tavares, 385 Mass. 140 , 149- 152, cert. denied, 457 U.S. 1137 (1982).

2024Nor did the defendant ever request a humane practice instruction. 27 Where, as here, voluntariness is a live issue at trial, and "a judge determines that a defendant's inculpatory statements are voluntary, 'the judge must instruct the jury that the Commonwealth has the burden of proving beyond a reasonable doubt that the statement was voluntary and that the jurors must disregard the statement unless the Commonwealth has met its burden.'" Commonwealth v. Richards, 485 Mass. 896 , 912 (2020), quoting Commonwealth v. Tavares, 385 Mass. 140, 152 , cert. denied 457 U.S. 1137 (1982).

2024For voluntariness to be considered a "live issue," to warrant a humane practice instruction, "substantial evidence of involuntariness [must be] produced." Commonwealth v. Gallett, 481 Mass. 662, 686 (2019).

2024For voluntariness to be considered a "live issue," to warrant a humane practice instruction, "substantial evidence of involuntariness [must be] produced." Commonwealth v. Gallett, 481 Mass. 662, 686 (2019).

2010In cases “[wjhere voluntariness is a live issue and the humane practice instruction is given, the jury should also be advised that the absence of a recording permits (but does not compel) them to conclude that the Commonwealth has failed to prove voluntariness beyond a reasonable doubt.” Id. at 448 , citing Commonwealth v. Cryer, 426 Mass. 562, 571 (1998). a.

2010Although the voluntariness of the defendant's statements was decided by the jury under the humane practice rule, see Commonwealth v. Cryer, 426 Mass. 562, 571 (1998), the defendant directs his challenge on appeal primarily to the judge's pretrial ruling.

2025The judge instructed that the jury's interpretation of the meaning of the defendant's statements controlled, not Sergeant Vivori's interpretation, and also gave a humane practice instruction requiring the jury to determine if the defendant's statements were voluntary, see Commonwealth v. Tavares, 385 Mass. 140 , 149- 152, cert. denied, 457 U.S. 1137 (1982).

2024Nor did the defendant ever request a humane practice instruction. 27 Where, as here, voluntariness is a live issue at trial, and "a judge determines that a defendant's inculpatory statements are voluntary, 'the judge must instruct the jury that the Commonwealth has the burden of proving beyond a reasonable doubt that the statement was voluntary and that the jurors must disregard the statement unless the Commonwealth has met its burden.'" Commonwealth v. Richards, 485 Mass. 896 , 912 (2020), quoting Commonwealth v. Tavares, 385 Mass. 140, 152 , cert. denied 457 U.S. 1137 (1982).

2019See Commonwealth v. Gallett , 481 Mass. 662 , 686, 119 N.E.3d 646 (2019), quoting Commonwealth v. Sunahara , 455 Mass. 832 , 835, 920 N.E.2d 831 (2010).

2019See Commonwealth v. Gallett , 481 Mass. 662 , 686, 119 N.E.3d 646 (2019), quoting Commonwealth v. Sunahara , 455 Mass. 832 , 835, 920 N.E.2d 831 (2010).

2025If a claim of involuntariness "is not a 'live issue' at trial, there is no obligation for the judge either to conduct a voir dire, or to instruct the jury on the humane practice rule." Commonwealth v. Pavao, 46 Mass. App. Ct. 271, 274 (1999).

2025If voluntariness "is not a 'live issue' at trial, there is no obligation for the judge either to conduct a voir dire, or to instruct the jury on the humane practice rule." Commonwealth v. Pavao, 46 Mass. App. Ct. 271, 274 (1999).

2024However, for voluntariness to be considered a "live issue," "substantial evidence of involuntariness [must be] produced." Commonwealth v. Gallett, 481 Mass. 662, 686 (2019), quoting Commonwealth v. Kirwan, 448 Mass. 304, 318 (2007).

2019See Kirwan , 448 Mass. at 318 , 860 N.E.2d 931 .

2019See Commonwealth v. Nieves , 429 Mass. 763 , 769-770, 711 N.E.2d 571 (1999) (despite evidence of defendant's drug use or drug withdrawal prior to arrest and confessions, "the issue of voluntariness was not raised with sufficient point to require an express admonition to the jury by the Court" [citation and quotations omitted] ). b.

2019See Commonwealth v. Nieves , 429 Mass. 763 , 769-770, 711 N.E.2d 571 (1999) (despite evidence of defendant's drug use or drug withdrawal prior to arrest and confessions, "the issue of voluntariness was not raised with sufficient point to require an express admonition to the jury by the Court" [citation and quotations omitted] ). b.

2018See Commonwealth v. Alicea , 376 Mass. 506 , 523 (1978).

2010The defendant next claims that the judge should have granted his request for an instruction on the doctrine of humane practice. 12 In this case, where the voluntariness of the defendant’s statement was not a live issue at trial, 13 the judge did not have a “duty to ask the jury to pass on voluntariness.” Commonwealth v. Alicea, 376 Mass. 506, 523 (1978).

2023In addition, "[w]here voluntariness is a live issue at trial and the humane practice instruction is given, we also require that the jury be instructed 'that the absence of a recording permits (but does not compel) them to conclude that 42 the Commonwealth has failed to prove voluntariness beyond a reasonable doubt.'" Id. at 800 n.26, quoting DiGiambattista, 442 Mass. at 448 .

2019Further, where, as here, "voluntariness is a live issue and the humane practice instruction is given, the jury should also be advised that the where the Commonwealth was not seeking to introduce evidence from those conversations. 26 absence of a recording permits (but does not compel) them to conclude that the Commonwealth has failed to prove voluntariness beyond a reasonable doubt." Id. at 448 .17 The defendant would not have been entitled to a DiGiambattista instruction on the basis of any putative incomplete recordings of the June 22, 2009 interrogations, because those interrogations were d

2025See Commonwealth v. Brown, 449 Mass. 747, 767 (2007).

2024"If the defendant does not raise the issue of voluntariness, the judge has a sua sponte obligation to conduct a voir dire only if the voluntariness of the statements is a live issue such that there is evidence of a substantial claim of involuntariness." Commonwealth v. Bohigian, 486 Mass. 209 , 219-220 (2020), quoting Commonwealth v. Brown 449 Mass. 747, 765 (2007).

2012See Commonwealth v. Anderson, 425 Mass. 685, 691-692 (1997).

2010See Commonwealth v. Anderson, 425 Mass. 685, 691 (1997) (jury were not compelled to consider the issue of voluntariness because it “was not a live issue at trial; there was no evidence before the jury that could have supported the conclusion that the confessions were not voluntary”).

2007See id. at 512 (“if the voluntariness of a confession or admission remains a live issue after evidence of the confession or admission has been presented to the jury, then the ‘humane practice’ of Massachusetts dictates that the judge instruct the jury that they may consider the voluntariness of the confession or admission and reject any statements which they consider involuntary”).

2000See Commonwealth v. Benoit, 410 Mass. 506, 511-513 (1991).

2024See Commonwealth v. LaCava, 438 Mass. 708, 719-720 (2003). 13 3.

2003Commonwealth v. LaCava, 438 Mass. 708 , 720 n.12 (2003), and cases cited.

2019Commonwealth v. Dykens , 438 Mass. 827 , 831, 784 N.E.2d 1107 (2003).

2019Commonwealth v. Dykens , 438 Mass. 827 , 831, 784 N.E.2d 1107 (2003).

2024See Commonwealth v. Earl, 102 Mass. App. Ct. 664 , 682 n.15 (2023), citing Commonwealth v. Bryant, 390 Mass. 729, 745 (1984). 5 The panelists are listed in order of seniority. 13

2020See Amaral, 482 Mass. at 506-507 . 17The postconviction judge did not err in denying the defendant's motion without a hearing.

2019Id. at 725-726, 739-740 . 17 The judge gave a humane practice instruction. 18The fact that, on June 22, 2009, the officers asked the defendant about the shooting on May 22 does not alter our analysis. 27 By contrast, here the defendant's third interview occurred only because he requested to speak with police, after police indisputably had ceased questioning him more than fifteen hours earlier, the day before.19 Moreover, the fact that the defendant's telephone call with Giana was unrecorded would not have entitled him to a DiGiambattista instruction, because the call did not comprise part of t

2019Further, where, as here, "voluntariness is a live issue and the humane practice instruction is given, the jury should also be advised that the where the Commonwealth was not seeking to introduce evidence from those conversations. 26 absence of a recording permits (but does not compel) them to conclude that the Commonwealth has failed to prove voluntariness beyond a reasonable doubt." Id. at 448 .17 The defendant would not have been entitled to a DiGiambattista instruction on the basis of any putative incomplete recordings of the June 22, 2009 interrogations, because those interrogations were d

2018See Commonwealth v. Wadlington , 467 Mass. 192 , 200 n.12 (2014).

2016See Commonwealth v. Cruz, 373 Mass. 676, 688-689 (1977).

2015See Commonwealth v. Urrea, 443 Mass. 530, 535 (2005) (explaining distinction between mental impairment doctrine and test regarding lack of criminal responsibility).

2014See Commonwealth v. Watkins, supra at 835 . 10 However, the humane practice rule “responds to two specific concerns” not present here.