In the case of Com. v. DiGiambattista, 813 N.E.2d 516 (2004), the Massachusetts Supreme Court stated that "... when the prosecution introduces evidence of a defendant's confession or statement that is the product of a custodial interrogation or an interrogation conducted at a place of detention (e.g., a police station), and there is not at least an audiotape recording of the complete interrogation, the defendant is entitled (on request) to a jury instruction advising that the State's highest court has expressed a preference that such interrogations be recorded whenever practicable, and cautioning the jury that, because of the absence of any recording of the interrogation in the case before them, they should weigh evidence of the defendant's alleged statement with great caution and care. Where 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."

In examining the use of trickery and deceit the Court stated that misrepresenting evidence "does not necessarily compel suppression of the statement." Also, the court said that "We do not suggest that an officer's use of the standard interrogation tactic of "minimization," by itself, compels the conclusion that a confession is involuntary." However, what seemed to disturb the Court the most was the apparent reference to counseling which they felt "implicitly suggested to him that "counseling" would be an appropriate avenue for him to pursue after making a confession." In other words, if he confessed he would get counseling instead of jail.

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