Legal Update Spring 2013

Counsel was not ineffective for failing to present testimony of false confession expert

In Johnson v. State (2012) the Supreme Court of Florida found that “trial counsel was not ineffective for failing to present testimony of expert in coerced confessions.”  In their opinion the Supreme Court stated, “Moreover, attorney Hockett testified that the decision not to call Dr. Ofshe at trial was a strategic choice predicated on the fact that the defense had sufficiently preserved a challenge to the admission of Johnson's confession through Dr. Ofshe's testimony at the suppression hearing and that the defense felt that repeating a week's worth of detailed testimony on that issue would not be helpful at trial. Additionally, the record shows that Dr. Ofshe's testimony would have contained information detrimental to Johnson's defense, such as Johnson's admission to Dr. Ofshe that Johnson had manipulated other experts and doctors in an attempt to establish mental incapacity.”  Click here for the complete decision.

Military Appeals Court upholds decision to exclude testimony of false confession expert – Dr.  Christian Meissner

In US v. Bell (March 2013) the U.S. Army of Criminal Appeals upheld a lower court’s decision to exclude the testimony of Dr. Christian Meissner, stating that, “The defense counsel did not provide any evidence that the appellant was unusually susceptible to coercion or had any abnormal mental or emotional problems that might make him more vulnerable to confessing falsely. The military judge found the defense could not articulate exactly what Dr. Meissner could do for the defense theory, and characterized the use of the expert as akin to a “fishing expedition.” Click here for the complete decision.

Human Lie Detector evidence

In US v. Knapp (March 2013) the U.S. Air Force Court of Criminal Appeals stated that, “The appellant contends on appeal that the prosecution improperly offered testimony from Agent P that he could tell appellant was acting in a deceitful and untruthful manner when discussing the sexual intercourse because (1) the appellant would not make eye contact, (2) large red blotches would appear on his face, and (3) his commentary became less detailed. He also argues the military judge should have provided a curative instruction to the members on their use of this testimony. When we put the challenged testimony in context and consider the seven factors found in Jones, we do not find its admission to be prejudicial error.” Click here for the complete decision.

Recording interrogations not required in Pennsylvania; false confession expert testimony excluded

In Commonwealth v. Harrell (April 2013) the Superior Court of Pennsylvania found that the state constitution does not require the recording of interrogations, stating that, “In…  this court held that custodial interrogations do not need to be recorded to satisfy the due process requirements of the Pennsylvania Constitution…. The majority of states, with the exception of Alaska and Minnesota, have not adopted a rule requiring police to record interrogations… Nor has the United States Supreme Court been asked to determine whether the United States Constitution requires the recording of custodial interrogations as a matter of federal due process… This court determined that the Pennsylvania Constitution does not require contemporaneous recording of statements and that the adoption of a rule requiring contemporaneous recording of custodial interrogation should be left to the Pennsylvania Supreme Court or the General Assembly, not an intermediate appellate court.”

In this same case, regarding the testimony of a false confession expert, the court stated the following:

Recently, …. we upheld the trial court's denial of the defendant's request to call Dr. Debra Davis, an expert in the field of false confessions:


[I]f the expert is only testifying generally about the fact that false confessions happen, that is well within the grasp of the average layperson and expert testimony would not be required under Rule 702. The components of a false confession, according to Dr. Davis, include factors such as the interrogation tactics employed, the training of the law enforcement personnel involved, and the stress tolerance of the suspect. This [c]ourt found that testimony concerning these factors can be elicited (and attacked) through the testimony of other witnesses and is capable of being understood by the average juror. The jury can then make its own determination as to the weight afforded to the defendant's confession. Therefore, Dr. Davis' testimony was not proper because expert testimony is inadmissible when the matter can be described to the jury and the conditions evaluated by them without the assistance of one claiming to possess special knowledge upon the subject.


Similarly, here, in addition to identifying various problems with Dr. Ofshe's methodology, the trial court opined that the issue of false confessions was not beyond the ken of the average layperson:


First, the Court is not convinced that any specialized knowledge is required for jurors to understand the proposition that a person possessing any of a number of unique factors (mental disability, fatigue, hunger, tender age, propensity toward acquiescence to authority figures etc.) may be more susceptible to police interrogative techniques. Further, the jurors would certainly be able to evaluate any evidence or arguments presented at trial by the defense to advance a theory that the conditions of [appellant]'s interrogation, the techniques used by police, or the personal characteristics of [appellant] had an impact on the veracity or voluntariness of [appellant]'s confession without the assistance of the proffered expert testimony. If anything, the testimony could confuse the issue by suggesting causal relationships which are not borne out by the research actually conducted….. We agree and find that the trial court did not abuse its discretion by precluding Dr. Ofshe's testimony.”  Click here for the complete decision.


Circumstances that indicate juvenile interrogation was not custodial


In Commonwealth v. Bermudez (December 2012) the Appeals Court of Massachusetts upheld the lower court’s decision that the interrogation of a juvenile was not custodial.  The court stated, “Applying these factors to the facts found by the judge and the objective circumstances depicted in the interrogation videotape, we conclude that the defendant's interrogation was not custodial. Although the interrogation occurred at the police station, the defendant appeared there voluntarily, accompanied by his mother, in response to a police request. He was neither under arrest nor escorted to the station by the police. The interrogation lasted seventy minutes, and the defendant sat next to the door throughout the interview. One of the two interviewing officers left the room from time to time, and the other sat across from the defendant behind a desk next to a computer. The questioning was conversational and nonthreatening in tone, and the detectives repeatedly told the defendant, who was not handcuffed or restrained in any way, that he would be allowed to return home with his mother, as he ultimately was. The defendant's age, a few months shy of his eighteenth birthday, placed him on the cusp of majority, and far removed from the tender years of early adolescence. Viewing all the pertinent factors objectively, including the defendant's age at the time of the interview, we conclude that the interrogation was not custodial so as to require Miranda warnings.”  Click here for the completed decision.


Colorado Supreme Court abandons the corpus delicti rule and puts in its place, the trustworthiness standard

In People v. LaRosa (February 2013) the Supreme Court of Colorado reached the following decision:

“This case requires us to decide whether to abandon our judicially created corroboration requirement, the corpus delicti rule, and with it over one hundred years of precedent. If we abandon the corpus delicti rule, then we must decide another issue: what corroboration requirement, if any, to articulate in its place. The People argue that we should abandon the corpus delicti rule in favor of the trustworthiness standard, which requires corroborating evidence that proves that a confession is reliable, or, in the alternative, the sufficiency of the evidence test, which requires no corroborating evidence. Instead, the sufficiency of the evidence test would treat confessions like any piece of evidence to be analyzed in the light most favorable to the prosecution during a motion for a judgment of acquittal.


We abandon the corpus delicti rule because we hold that sound reasons exist for doing so. In its place, we articulate the trustworthiness standard, which requires the prosecution to present evidence that proves that a confession is trustworthy or reliable. To determine whether corroborating evidence proves the trustworthiness or reliability of a confession, we hold that the trial court must find that corroboration exists from one or more of the following evidentiary sources: facts that corroborate facts contained in the confession; facts that establish the crime which corroborate facts contained in the confession; or facts under which the confession was made that show that the confession is trustworthy or reliable.”  Click here for the complete decision.


Illinois Supreme Court also addresses the corpus delicti rule


In People v. Lara (October 2012) the Illinois Supreme Court addressed the issue of whether or not the appellate court improperly expanded the corpus delicti rule to require independent evidence corroborating every element of the specified offense before a defendant's statement could be used to prove the corpus delicti of the offense. The Supreme Court stated:


The corpus delicti of an offense is simply the commission of a crime. Along with the identity of the person who committed the offense, it is one of two propositions the State must prove beyond a reasonable doubt to obtain a valid conviction. In general, the corpus delicti cannot be proven by a defendant's admission, confession, or out-of-court statement alone. When a defendant's confession is part of the corpus delicti proof, the State must also provide independent corroborating evidence.


To avoid running afoul of the corpus delicti rule, the independent evidence need only tend to show the commission of a crime. It need not be so strong that it alone proves the commission of the charged offense beyond a reasonable doubt. If the corroborating evidence is sufficient, it may be considered, together with the defendant's confession, to determine if the State has sufficiently established the corpus delicti to support a conviction.


The primary purpose of the corpus delicti rule is to ensure the confession is not rendered unreliable due to either improper coercion of the defendant or the presence of some psychological factor. … Unless a confession cannot be sufficiently corroborated to fulfill this purpose, it remains one stick in the evidentiary bundle the trier of fact may use in deciding whether the State has met its burden of proving beyond a reasonable doubt that the defendant committed the charged offenses. Setting the bar too high for finding sufficient corroboration of a defendant's confession under the corpus delicti rule would intrude on the scope of the fact finder's exclusive duties. As long as the confession is reasonably reliable, consideration of it and all the other evidence properly admitted at trial falls within the domain of the trier of fact.


By not requiring corroboration of every element, or any one particular element, our interpretation of the corpus delicti rule supports the fact finder's role. Simultaneously, it permits the trial court to perform its proper legal function of ensuring the legal sufficiency of the corroborating evidence presented by the State because the corroboration must still “tend [ ] to connect the defendant with the crime” Defendant's reading of the rule would bar the use of a confession if the details relating to the elements of the offense did not completely align with the confession, contradicting our determination in Furby that “every detail need not correspond.” … Consequently, we reject any interpretation that would partially usurp the fact finder's exclusive responsibilities to evaluate the credibility of the witnesses, weigh the conflicting evidence, and draw appropriate inferences from the evidence.


Accordingly, consistent with our precedents, we hold that the corpus delicti rule requires only that the corroborating evidence correspond with the circumstances recited in the confession and tend to connect the defendant with the crime. The independent evidence need not precisely align with the details of the confession on each element of the charged offense, or indeed to any particular element of the charged offense.”  Click here for the complete decision.


How much corroboration is needed to support the trustworthiness of a confession?

In the case, In re K.A., Appellant (February 2013) the District of Columbia Court of Appeals addressed the issue of corroboration, stating, in part, the following:

In confession cases, this jurisdiction has long followed the United States Supreme Court's corroboration rule, explained in decisions issued on the same day……  The rule, which “is intended ‘to forestall convictions based on extrajudicial confessions the reliability of which is a matter of suspicion,’ …. “requires ‘the Government to introduce substantial independent evidence which would tend to establish the trustworthiness of the statement’ before a confession can be submitted to the jury and can sustain a conviction….”


It is hard to say precisely what quantum of independent evidence is “substantial” enough to support a conviction, as “the amount and kind of evidence needed to corroborate a confession will depend upon the facts of each case.” … That case and others… make clear that the amount of independent evidence required to satisfy the corroboration rule depends in part on the circumstances under which the confession was made and any indication that the confession might be false.


In examining “the degree of corroboration required,” the court…. found it useful to examine, as a “threshold matter,” the voluntariness and coherence of the confession, whether it was made under trustworthy circumstances, and whether there were “signs that the confession was false.”


Turning to K.A.'s case, we apply the threshold analysis… and examine the circumstances of K.A.'s statements for signs of trustworthiness.  While we assume K.A.'s statements were voluntary, his admission to possessing the guns bears hallmarks of a less than trustworthy confession. K.A. confessed after persistent questioning by a number of officers in a small apartment that, while a familiar environment, had been filled with police officers for nearly an hour and a half. The officers repeatedly made clear that they were willing to arrest K.A.'s grandfather, despite his illness and even though they did not believe the guns were his. K.A.'s confession came in a conclusory statement—“Man, they my guns. Take those things off him”—that explicitly revealed an ulterior motivation to keep his ailing grandfather from being arrested.


That motivation is the most conspicuous sign of unreliability in the circumstances surrounding K.A.'s confession. K.A.'s admission of guilt came only when his grandfather, with whom he lived and for whom he performed at least some caretaking, “wasn't looking in the best of shape,” and was receiving emergency medical treatment while handcuffed. Terrell's testimony about his own thoughts while watching his grandfather go through this ordeal suggests a similar inclination: “I was thinking of some way how to stop this for real.... Maybe confess.” By keeping I.A. handcuffed during his treatment, the police demonstrated that they had every intention to take him to jail, not to the hospital.


While the corroboration rule does not require that the government prove all of the elements of the crime through independent evidence, it does require that the independent evidence be sufficient to make the confession worthy of an inference of truth.”  Click here for the complete decision.

Improper offer of leniency nullifies a confession

In State v. Wiley (March 2013) the Supreme Court of Maine found that the detective made an improper offer of leniency to the defendant and that his improper offer of a short jail sentence and some probation, as an alternative to lengthy prison sentence, was the primary motivating cause of the defendant’s confession, thus rendering the confession involuntary.

In describing the detective’s behavior, the court stated the following: “Detective Bosco's representation as to how certain it was that Wiley's cooperation would secure him a short jail sentence and probation was equivocal at times, with Detective Bosco stating at one point, “I can't promise you anything,” but then, moments later stating that he could “guarantee” that the judge would be more lenient. Nonetheless, it is inescapable that the overall effect of Detective Bosco's representations—which he alternately described as an “offer,” “option,” “opportunity,” and chance to “write[ ] your own punishment”—was to establish that if Wiley confessed to the crimes he would get a short county jail sentence with probation, and thereby avoid state prison. Wiley was told, “[t]he only reason you're getting this opportunity is because people spoke very highly of you,” and that “[t]his offer's going to expire if ... you're not going to do the right thing.” The conclusion that this concrete representation was, in effect, an improper offer of leniency is inescapable.”  Click here for the complete decision.


When a suspect is not in custody no need to stop questioning when they request an attorney


In State v. Lonkoski (April 2013) the Wisconsin Supreme Court ruled that when a defendant is not in custody the interrogation does not have to be terminated when he asks for an attorney.  The court stated the following:


“No one disputes that Lonkoski was interrogated, so the issue is whether he was in custody. If he was not in custody, then Lonkoski is not entitled to have his subsequent statements suppressed under the Miranda rule….


Lonkoski argues that because the interrogation had gotten to the point that the officers knew and could prove he was responsible for his child's death, no one would believe he was free to leave, and therefore, he was in custody. He further argues that even if he was not actually in custody, a person may invoke rights under Miranda “when custodial interrogation is imminent or impending.”


The parties agree that Lonkoski was not in custody at the beginning of the interview. Because we are determining whether Lonkoski was in custody at the point when he stated he wanted an attorney, we look at the circumstances surrounding the interview to determine if he was in custody when he made that statement.


We will begin by looking at the totality of the circumstances, examining the facts surrounding the defendant's freedom to leave. The circuit court found that the area that Lonkoski was in was a “typical interrogation setting.” The court stated that the area was “locked to ingress by individuals, but there [was] no indication that it was locked for egress. That is, that the defendant could simply walk out.” The circuit court also found that although the door was closed during most the interview, “there were clearly times when the door was opened and he could in fact have walked out.” Finally, the officers stated that Lonkoski was not under arrest and that they were not accusing him.


The purpose, place, and length of the interrogation also support the conclusion that Lonkoski was not in custody. Lonkoski came to the sheriff's department on his own volition, providing transportation for the child's mother, Bodoh. The location of the interview being the sheriff's department weighs toward a custodial situation, but that fact is not dispositive…. An officer went to the waiting room where Lonkoski waited for Bodoh, and Lonkoski went to an interview room. The circuit court found that the officers asked Lonkoski “open ended questions” that “called for a narrative by him. They were not accusatory. They were not leading questions.” The circuit court found that the length of the interrogation was “relatively short” before he asked for an attorney, after about 30 minutes. These facts indicate that Lonkoski was not in custody.


Like the other factors, the degree of restraint Lonkoski experienced also does not indicate a custodial situation. Two officers questioned Lonkoski. The door to the interview room was repeatedly used by the officers throughout the interview without a key. At one point when both officers were leaving the room, Gardner asked Lonkoski if he preferred the door open or closed to which Lonkoski responded, “Don't bother me.” During the relevant portion of the interview, Lonkoski was not handcuffed, no weapons were drawn by the officers, and no frisk was performed…. The circuit court found that Lonkoski was not physically restrained in any way. These factors indicate a lack of custody.


Lonkoski argues that once the officers zeroed in on him as a suspect, there was no way any reasonable person would have felt free to leave. He cites several cases from other jurisdictions that he believes support the proposition that a person's knowledge that officers suspect the person of a serious crime is a significant factor that weighs in favor of finding that the person was in custody.


Statements officers make to a suspect can be an indication of the presence or absence of custody…. However, a suspect's belief that he or she is the main focus of an investigation is not determinative of custody…. The United States Supreme Court has rejected this theory. For example, the United States Supreme Court… dismissed a similar argument about the circumstances of a non-custodial interrogation transforming into custodial interrogation after the investigation focused on the suspect, stating, “[W]e are not impressed with this argument.”


In addition, we note that Lonkoski's standard would necessarily focus on the subjective beliefs of both police and the suspect. This is inconsistent with the objective test created for custody…. The totality of the circumstances test applied in our opinion today provides the appropriate framework to protect suspects in interrogations and to determine whether a suspect is in custody for purposes of Miranda. Lonkoski's argument to the contrary is unsupported by the controlling case law and the purpose behind Miranda protections.


We conclude that Lonkoski was not in custody when he asked for an attorney. Because his statement about wanting an attorney was not made during a custodial interrogation, Miranda's rule requiring that the interrogation cease upon a request for an attorney does not apply, and there is no constitutional violation and no bar to using his subsequent statements.”   Click here for the complete decision.

the very outer limit as to what tactics law enforcement may employ when performing a custodial interrogation”

In Martin v. State (February 2013) the Supreme Court of Florida addressed the defendant’s claim that this confession was coerced by the detectives who he claimed “relied upon the following six coercive tactics to induce his confession: The police (1) threatened him with the spectre of death row; (2) deluded him as to what he could expect for himself and from a jury if he confessed; (3) deceived him as to the amount of time he had to cooperate with law enforcement; (4) promised their favorable testimony and use of their influence during his trial if he cooperated; (5) promised to arrange a visit for him with his girlfriend if he cooperated; and (6) exploited his religious beliefs by relying on a version of the “Christian burial” interrogation technique.”


The Supreme Court ruled that “When considering the facts, relevant standard of review, and totality of the circumstances, we do not agree with Martin that the detectives coerced his confession. Nevertheless, some of the techniques the detectives employed walked the line that separates permissible from impermissible interview tactics, and we, as a result, note that this case presents the very outer limit as to what tactics law enforcement may employ when performing a custodial interrogation.”


The Supreme Court concluded, “The interviewing detectives engaged in a variety of tactics to elicit information from Martin. Given the specific factual circumstances addressed in this case, however, we do not agree with Martin's contention that the interviewing detectives coerced his confession, thus rendering it inadmissible. Law enforcement must be afforded some leeway in how they conduct interrogations to ensure public safety and to furthertheir objective of locating a missing person who might still be alive. The interview here cannot be characterized as so coercive as to render Martin's confession involuntary. Although some of the tactics and techniques used by the detectives may have been less than ideal, West and Wolcott did not directly threaten, deceive, or delude Martin into confessing. Therefore, we affirm the trial court's denial of Martin's motion to suppress.”  Click here for the complete decision.

What constitutes mental retardation?

In US v. Wilson (February 2013) the US District Court, E.D. New York examined the issue of what constitutes mental retardation. In this case, the defendant, “a convicted murderer of two undercover police officers, claims that he is mentally retarded and therefore ineligible to receive the death penalty. For the reasons that follow, he is incorrect.”

In examining this issue the court stated that, “Two provisions of law forbid federal courts from imposing a death sentence upon a person who is mentally retarded. First, the Federal Death Penalty Act (“FDPA”), originally enacted by Congress in 1988 and amended in 1994, provides that a “sentence of death shall not be carried out upon a person who is mentally retarded.” ….. Second, the execution of mentally retarded individuals violates the Eighth Amendment's ban on “cruel and unusual punishments.”


However, “neither the FDPA nor Atkins mandates a particular definition of mentally retardation.” …. For these reasons, the court relies largely on the clinical definitions of mental retardation promulgated by the AAIDD and the APA, the two leading authorities on the subject. These authorities were cited favorably in Atkins, and nothing in either the FDPA or New York law prevents the court from relying upon them. Most federal courts have taken the same approach when deciding Atkins cases.

In their opinion the curt stated that, “The definitions of mental retardation set forth by the AAIDD and the APA are “essentially identical.” …….


According to the APA, a diagnosis of mental retardation requires:


A. Significantly subaverage intellectual functioning: an IQ of approximately 70 or below on an individually administered IQ test....


B. Concurrent deficits or impairments in present adaptive functioning (i.e., a person's effectiveness in meeting the standards expected for his or her age by his or her cultural group) in at least two of the following areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health and safety.


C. The onset is before 18 years of age.

DSM–IV–TR at 49.

The AAIDD defines mental retardation (which it now calls “intellectual disability” or “ID”) as follows: “Intellectual disability is characterized by significant limitations both in intellectual functioning and in adaptive behavior as expressed in conceptual, social, and practical adaptive skills. This disability originates before 18.” AAIDD 2010 Manual at 1.


Putting these two clinical standards together, the definition of mental retardation has three “uniformly accepted” requirements, … which the court will at times refer to as “prongs one, two, and three.” These requirements are: (1) significantly subaverage intellectual functioning; (2) significant deficits in adaptive behavioral skills; and (3) onset of the condition before age eighteen. See AAIDD 2010 Manual at 7, 27, 41; DSM–IV–TR at 49; …. The three prongs are each “indispensable” to a finding of mental retardation.


In sum, both the FDPA and the Eighth Amendment forbid the court from imposing a death sentence upon a person who is mentally retarded. A person is mentally retarded only if he satisfies three necessary requirements: (1) significantly subaverage intellectual functioning; (2) significant deficits in adaptive behavioral skills; and (3) onset of those limitations before the age of 18. In developing the nuances of these requirements, the court will rely heavily upon modern clinical definitions of mental retardation, particularly those of the APA and the AAIDD. At the same time, the definition of mental retardation is ultimately a legal matter, and so the court may—and will—exercise its own judgment as to the appropriate definition of mental retardation in the Atkins /FDPA context.”


Click here for the complete decision.


Court precludes Dr. Richard Ofshe from testifying as an expert witness on false confessions


In Thompson v. Warren (January 2013) the US District Court, E.D. Michigan found that the petitioner’s claim that the trial judge's decision to preclude Dr. Ofshe from testifying as an expert witness on false confessions or coercive interrogation techniques deprived her of the right to present a defense was unfounded. 


The court stated that, “In the present case, Petitioner is not entitled to habeas relief on his first claim because there is no clearly established Supreme Court law which holds that a criminal defendant is entitled to present expert testimony on the issue of false or coerced confessions. Given the lack of holdings by the Supreme Court on the issue of whether a criminal defendant is entitled to present expert testimony on the issue of false confessions or coercive police interrogation tactics, the Michigan Court of Appeals' rejection of Petitioner's claim was not an unreasonable application of clearly established federal law…. Moreover, because numerous federal courts on both direct review of federal criminal convictions and on habeas review of state court convictions have ruled that a criminal defendant's rights were not violated by the exclusion of such expert testimony, Petitioner is not entitled to habeas relief because the cases cited above clearly show that “fairminded jurists could disagree that the state court's decision conflicts with” Supreme Court's precedents…. Moreover, in light of the fact that Dr. Ofshe had never personally interviewed Petitioner or reviewed the police reports in this case and did not know whether Petitioner was personally vulnerable to coercive police techniques, the trial court's decision to exclude Dr. Ofshe's expert testimony was reasonable. Finally, in light of the fact that the jurors were able to watch the videotaped interrogations in their entirety and Petitioner's counsel was able to cross-examine the detectives who conducted the interrogations, Petitioner was able to present her defense to the jury that her confession was unreliable. Petitioner is not entitled to habeas relief on her first claim.”  Click here for the complete decision.


Juvenile interrogation – voluntariness considerations; value of video recording


In People v. Murdock (November 2012) the Illinois Supreme Court addressed the issue of whether or not the defendant’s statements to the police were involuntary because he, a juvenile, was interrogated as an adult. The State counters that defendant's statements were voluntary and the trial court was correct in denying the motion to suppress. Defendant concedes that Detective Mushinsky did not engage in any behavior that would be considered coercive when applied to an adult. However, defendant argues that he was a juvenile, 16, at the time of the interrogation, and that the Supreme Court of the United States has recognized that “special caution” is required when reviewing the voluntariness of a minor's confession.  The court stated the following in their opinion:


“The taking of a juvenile's confession is a sensitive concern, and for this reason the greatest care must be taken to assure that the confession was not coerced or suggested. … The confession should also not be the product of adolescent fantasy, fright, or despair…. Illinois courts have recognized an additional factor not applicable in cases involving adults: the presence of a “concerned adult.” … This factor considers whether the juvenile, either before or during the interrogation, had an opportunity to consult with an adult interested in his welfare…  In weighing this factor, courts also consider whether the police prevented the juvenile from conferring with a concerned adult and whether the police frustrated the concerned adult's attempt to confer with the juvenile


However, a juvenile's confession or statement should not be suppressed merely because he was denied the opportunity to confer with a parent or other concerned adult before or during the interrogation…. The concerned adult factor is particularly relevant in situations in which the juvenile has demonstrated trouble understanding the interrogation process, he asks to speak with a concerned adult, or the police prevent the concerned adult from speaking with him…. The concerned adult factor is just one of the many factors to be examined when determining whether a juvenile's confession was voluntary…


We agree with the trial court that Mushinsky made no promises to defendant, and see no reason to disturb the trial court's credibility determination on this point. On direct examination Mushinsky testified that he made no promises of leniency to defendant in exchange for information. When asked on cross-examination about whether defendant was promised freedom if he “g[a]ve up the trigger man,” Mushinsky replied that defendant's claim was “absolutely false.” Mushinsky testified that he “already knew who both trigger men were by the time” he talked to defendant. Defendant testified on direct examination that Mushinsky promised him, before the video statement was recorded, that he could go home if he “helped [Mushinsky] get the trigger man.” On cross-examination, however, defendant conceded that on the videotape, when asked by Mushinsky if he had been promised anything in exchange for providing a statement, defendant answered “no.” Also, on direct examination, when asked if it was “really brought home to him” that he did not have to talk to the police if he did not want to, defendant said “no” and that Mushinsky never told him that. However, on the videotape, when asked if he understood that he did not have to talk to Mushinsky or answer his questions unless he voluntarily chose to do so, defendant immediately and clearly answered “yes.” Defendant claimed he only said “yes” on the videotape because he was tired and he thought Mushinsky would let him go.


We also agree with the findings made by the trial court regarding the videotape. Defendant claimed at the suppression hearing that, when the video was made, he was “tired and scared.” Defendant claimed he did not really understand the Miranda rights Mushinsky was reading to him. Defendant's statements are belied by his appearance on the videotape. Defendant's overall demeanor during the interview is calm. Defendant does appear somewhat nervous at times, but no more nervous than would be anyone else in his situation. Defendant appears able to understand his situation and the questions posed to him. Defendant is able to provide answers in a clear, narrative structure. Defendant does not appear on the videotape to be in any sort of physical or mental distress. He does not appear to be exhausted or in any sort of suggestive state. He does not appear to misunderstand or be confused by any of the questions asked by Mushinsky. Defendant never asks Mushinsky to repeat a question. We can find no reason, based on the transcripts and videotape, to disturb the trial court's findings of fact. The trial court's factual findings are not against the manifest weight of the evidence.


Upon review, we agree with the trial court that the totality of the circumstances indicate defendant's statements were voluntary. We first consider defendant's age, experience, educational background, and intelligence. Defendant, at 16, is on the older end of the juvenile scale. While he did testify that he attended Greeley Alternative School, it is not clear if he attended because of learning difficulties or behavioral problems. Defendant, in his brief, notes that his presentence investigation report showed he had only completed one semester of high school and had poor grades. However, based on the evidence from the suppression hearing and videotape, defendant was able to understand and give full, concise, and clear answers to questions posed to him. While in his letter to Judge Lucas defendant claimed to have never been in trouble with the police before, he did not appear to misunderstand or be confused by Mushinsky's questions or the discussion of Miranda rights. Thus, defendant appears to be of normal intelligence and mental capacity for someone his age.


Second, there is no evidence of physical or mental abuse. Defendant testified that Mushinsky made promises to him that he would be released if he gave information on the shooter, but the trial court found Mushinsky more credible on this matter than defendant, and we see no reason to disturb the trial court's finding in that regard. Mushinsky testified that he never made any threats toward defendant. Defendant was not handcuffed during the interview. On the videotape, Mushinsky's tone with defendant is conversational, not confrontational. There is no evidence that any sort of police trickery was employed to extract information from defendant. The absence of trickery weighs in favor of voluntariness.


Third, we consider defendant's physical condition. Defendant did appear nervous at times during the videotaped statement, but some nervousness on defendant's part is not inconsistent with voluntariness. On the videotape, defendant does not appear to be sweating or shaking. He does not appear to be in any type of distress. Rather, defendant appears for the most part calm and alert. He does not appear tired or exhausted. Mushinsky testified that defendant was offered food, drink, and the opportunity to use the bathroom. Based on the videotape and the testimony of Mushinsky, which the trial court found more credible than that of defendant, defendant was in good physical condition during his detention and interview.


Fourth, the length of defendant's detention and interview does not render his statements involuntary. The seven-hour duration of defendant's detention is somewhat lengthy. However, Mushinsky testified that he only interviewed defendant from around 6:45 to 10 p.m. that day, and that based on Mushinsky's recollection, defendant was in the interview room from about 5:30 p.m. to 10 p.m. the day of September 19, 2001. Weighing in favor of voluntariness, the interview was conducted in the evening hours, instead of, for example, the very early morning hours, when sleep deprivation can lead to a potentially more coercive environment. … Defendant's total time of detention was less than 12 hours…   Defendant was detained for six to seven hours. The interview took place in the evening and the actual interview only lasted three hours. The interview time was reasonable and we cannot say it contributed to a coercive atmosphere that would render defendant's statements involuntary.”   Click here for the complete decision.


Court rejects the claim that the “Reid technique” caused an involuntary confession; jury rejects Dr. Leo testimony

In Shelby v. State (April 2013) the Court of Appeals of Indiana rejected the defendant’s claim that his confession was involuntary, in part, because the police used the “Reid technique” to question him.  The court stated, “Considering the evidence favorable to the trial court's decision and the reasonable inferences to be drawn therefrom, the trial court did not err in concluding that the totality of the circumstances show that Shelby's statement to the police was given voluntarily.”

In this case, “Dr. [Richard] Leo was allowed to testify at length about police interrogation tactics that can increase the risk of a false or coerced confession. The jury was also presented with extensive evidence regarding the police interrogations of Shelby in written, video, and audio formats, and could observe whether his interrogation included the tactics and techniques that Dr. Leo testified could lead to a false or coerced confession. Thus, the jury was able to apply the concepts about which Dr. Leo testified to the facts and circumstances of Shelby's interrogation and subsequent confession.”  The jury rejected the suggestion that the confession was false or coerced.  Click here for the complete decision.

The value of recording interrogations

In State v. Swindler (February 2013) the Supreme Court of Kansas found the video recording of the defendant’s interrogation compelling evidence that his rights were violated.  “In this case, Swindler does not claim officers manufactured information or evidence in order to get him to confess, ….. But he argues that the investigators' bait and switch about his ability to terminate the interview and leave had the same coercive effect.

The video in the appellate record makes it very clear that Swindler wanted to exercise the power the investigators had initially guaranteed that he possessed. From the time that he said “I'm done. I want to go home. I'm done,” it is obvious that Swindler wanted to terminate the interview and leave the KBI office. His girlfriend and two small children were waiting for him in the hallway, and he expressed his desire to go to work to provide for his children. He repeated that he was “done” and wanted to go home.


Swindler's first clearly inculpatory statement was not made until he had said that he was confessing “just to get this over with so I can go home.” Instead of being allowed to leave, the investigators persisted in questioning him. In particular, we note that Attebury admitted he left the room to consult with Hawkins to avoid an expected invocation of Swindler's right to remain silent. Also, Hawkins met Swindler's repeated efforts to do what he had been told he was free to do with “Well, tell me what happened.” The message of these investigators was unmistakable: If Swindler wanted to stop talking and leave, he needed to confess to raping L.C.


In short, the investigators set the rules of engagement and then did not hesitate to break them as soon as they thought Swindler might slip away without telling them what they wanted to hear. Under the totality of these circumstances, the State cannot carry its burden to show that Swindler's resulting oral confession, written confessions, and drawing were given voluntarily under the Fifth Amendment. The district judge's refusal to suppress the confessions and drawing was error.”  Click here for the complete opinion.


Faulty District Attorney strategy re the advisement of rights

In People v. Dunbar (January 2013) the Supreme Court, Appellate Division, Second Department, NY, ruled the following:

“The office of the Queens County District Attorney (hereinafter the District Attorney's office) instituted a program (hereinafter the Program) under which arrested individuals are systematically interviewed just prior to arraignment, or, in other words, immediately before those individuals' indelible right to counsel would attach. As part of the Program, the District Attorney's office formulated a script, containing a number of statements, which is read to suspects before they are advised of their constitutional rights as required under Miranda v. Arizona (384 U.S. 436). The principal issue presented on this appeal is whether this procedure is effective to secure those individuals' fundamental constitutional privilege against self-incrimination and right to counsel. We hold that it is not, and, therefore, that the defendant's videotaped statement, made to members of the District Attorney's office pursuant to the Program, should have been suppressed.”

Te court went on to say, “More specifically, suspects interviewed pursuant to the Program are advised of their Fifth Amendment privilege against self-incrimination, but only after being told that this is their “opportunity,” and then “only opportunity,” to, essentially, refute what the prosecutor has been told by other individuals, to correct any misperceptions or falsehoods, and to try to help themselves.


In essence, although suspects interviewed pursuant to the Program are told, through the Miranda warnings, that they have the right to remain silent, the preamble suggests that invoking that right will bear adverse, and irrevocable, consequences. Such a suggestion conveys that suspects have a right to remain silent only in the most technical sense. While the Miranda warnings also advise suspects interviewed pursuant to the Program that anything they say can and will be used against them in court, the preamble essentially suggests that anything they say will also be used to help them. Therefore, the procedure followed under the Program is not “effective to secure the privilege against self-incrimination”.  Click here for the complete decision.


Value of recording interrogations to discredit defendant’s allegations


In Malloch v. State (December 2012) the Court of Appeals of Indiana relied extensively on the video recording of the defendant’s interrogation to evaluate the credibility of his allegations. 


Specifically, “Malloch argues that Detective Lauer obtained a false confession with promises of leniency or mitigated punishment… Malloch claims that Detective Lauer promised leniency or mitigated punishment by comparing an employed person who steals a cell phone accessory to an unemployed person who steals a can of chicken to feed his family and then indicating that the latter was the kind of person “you're gonna want to work [with].” ….. He also claims that Detective Lauer indicated that he would let him off the hook if he confessed: “I don't want you to walk out of here, I don't want to go to bed tonight thinking, I just let this ... guy go out, who's gonna go out and—and victimize other people, okay? The only way I can know that it's done, and over with, is by you [confessing and saying it was a mistake].”….  Malloch further points to Detective Lauer's response after the second time Malloch admitted to being awake at the time he fingered C.P. At that time, Detective Lauer said he wanted to be sure that Malloch was telling the truth and that “what's going on right now are the important things. Whether you're man enough to accept responsibility, and show a judge that you're remorseful, and how you show remorseful is by saying, ‘Yes, this is what I did, it's never gonna happen again, I learned my lesson.’ ”


These statements are too vague and indefinite to constitute promises of leniency or mitigated punishment.


Malloch also argues that his will was overborne by Detective Lauer's interrogation tactics….  Malloch notes that Detective Lauer asserted forty-nine times that Malloch was awake and consciously touched C.P., that he urged Malloch to tell the truth but then dismissed him when he claimed to be asleep, and that he frequently challenged Malloch's manhood in light of his failure to take responsibility. Malloch also claims that he was bullied by Detective Lauer when he was sarcastically told that he was a “great guy,” an “[o]utstanding individual,” and a “sleep fondler” who “just need[ed] some kind of sleep test.” …. Malloch further asserts that he was worn down by Detective Lauer's accusations of other disturbing acts, for example, that maybe Malloch had married Anita to gain access to C.P., and that he may one day fall asleep with his son, wake up, and “just fondle the heck out of [his] penis.”


Detective Lauer asserted, repeatedly and falsely, that his investigation clearly established that Malloch intentionally touched C.P. However, his deception does not necessarily render the confession involuntary.


We have examined each of Detective Lauer's statements that Malloch highlights on appeal. In considering the totality of the circumstances, we also note that Malloch was thirty-five years old at the time of the interviews, had an associate's degree in architectural engineering, and supported his family with a job as a network engineer. Before each interview, he was read his Miranda rights and indicated that he understood them. As we concluded above, Malloch did not request an attorney, and Detective Lauer made no promises in order to get the confession. Further, there is no indication, nor does Malloch suggest, that he was intoxicated or sleep-deprived. The second phase of the first interview, the only portion in which Detective Lauer was confrontational in his questioning, lasted just under an hour.


We acknowledge that Detective Lauer's interrogation of Malloch was confrontational and intense in light of the serious offenses being investigated. Nonetheless, after our own careful review of the video recordings (emphasis added) and consideration of the totality of the circumstances, we conclude that there is substantial evidence to support the trial court's conclusion that Malloch's statements in both interviews were voluntary under federal and state standards of review.  Click here for the complete decision.