Legal Updates Summer 2013


Witness Credibility


In US v. Modir Trading (July 2013) the US District Court, N.D. Illinois, denied the defendant’s motion to suppress his incriminating statements. In this case Defendants Modir Trading, Ali Mohammadi (Modir Trading's owner and sole proprietor), and Ebrahim Hallaji (who is based in the United Arab Emirates and not yet arrested) were charged with conspiring and attempting to export a Series 446 Rate Integrating Gyroscope to Iran without a license between February 2010 and April 2010.  When questioned by the investigators the defendant made incriminating statements, which he later claimed should have been suppressed because he was in custody and not advised of his Miranda rights.  The investigators testified that he was not in custody.  In making their decision the court emphasized the importance of witness credibility, stating the following:


“Resolution of a motion to suppress is a fact-intensive inquiry in which the court must make credibility determinations based on its observation of the witnesses' demeanor and the testimony presented to it…. As a threshold matter, the court must determine whether to credit the testimony of the agents or Mohammadi, who offered competing and at times conflicting versions of the events on April 21, 2010.


The court has carefully evaluated the demeanor and testimony of the witnesses. The agents testified credibly and for the most part consistently with each other and the documentary evidence…Mohammadi, on the other hand, testified that, when under pressure, such as on April 21, 2010, his mind goes blank and he cannot concentrate on what is going on. At the same time, however, he testified in precise detail as to exactly what occurred on that day, couching much of his testimony in legal terms that would support a finding of custody or involuntarinessMohammadi cannot have it both ways, claiming to remember every detail for purposes of the custody inquiry while attempting to deny any understanding for purposes of the voluntariness inquiry. Further, his explanation that he was unfamiliar with the legal system and did not understand his rights, including the right to remain silent, is undercut by his prior encounters with law enforcement, which included spending time in jail, and the fact that he is well-educated, a college graduate who was confident enough in his abilities to start his own business. After carefully considering the testimony of the witnesses, assessing their credibility, and reviewing the submitted evidence, this court finds the agents' testimony to be more credible than that of Mohammadi.”


Click here for the complete decision.


Statement’s such as “people who were honest with the police would be helped differently than those who lied about their guilt” led to an inadmissible confession


In Kohland v. State (June 2013) the Court of Appeals of Iowa ruled in favor of the defendant’s claim that his counsel was ineffective because he failed to move to suppress his confession.  In their analysis the court considered the statements that the investigator made to the defendant during the interrogation, and in their discussion of the issue of an admissible confession, stated the following:


“The evidentiary test was best set out in State v. Hodges, 326 N.W.2d 345 (Iowa 1982). In Hodges, our supreme court indicated a confession must be suppressed on the basis of promises of leniency where the officer tells the defendant what advantage is available to be gained from truthfulness… Officers are allowed to tell a defendant that being honest is better than withholding the truth, without crossing the line and mandating exclusion of the confession…. When police indicate they will inform the county attorney of the defendant's cooperation, without more, there is no basis for exclusion under the evidentiary test…..


“In Hodges, the officer induced a confession by indicating the defendant would receive “better treatment and less severe punishment” if he confessed…. A promise that no charges would be filed was similarly impermissible…. In Madsen, promises that an advantage could be gained, the defendant could “go along with his life,” and that publicity could be avoided, failed the evidentiary test…..


“In the present matter, Cpl. Reid offered help and indicated people who confessed were helped differently than those who withheld the truth. Cpl. Reid repeatedly instructed Kohland he would be free to leave at the end of the interview regardless of what he said and truthfulness would allow Kohland to fix any mistake. More disturbing, however, was when Cpl. Reid stated a confession would mean the case would proceed differently than if it continued as a criminal investigation. The obvious implication from this statement is Kohland's cooperation would prevent the case from being investigated as a criminal matter.


“…… We find these statements are the equivalent of a promise for better treatment, as found in Hodges. The same can be said of Cpl. Reid's assurance that Kohland would be set free following the interview…. Cpl. Reid's statement that the case would be treated differently than a criminal investigation is impermissible and amounts to an assurance that no criminal charges would follow… These statements go far beyond simply informing the prosecuting authorities of the defendant's cooperation and amount to an identifiable benefit being promised.”


Click here for the complete decision.


Kansas Supreme Court recommends electronic recording of interrogations


In the case State v. Randolph (May 2013) the Kansas Supreme Court recommends the electronic recording of interrogations from the beginning of the process through the confession.  In this case, the defendant claimed that his confession was coerced.  In considering the issue the Supreme Court stated that, “In determining whether the statement was the product of an accused's free and independent will, a trial court looks at the totality of the circumstances surrounding the statement and determines its voluntariness by considering the following nonexclusive list of factors:


“ ‘ “(1) the accused's mental condition; (2) the manner and duration of the interrogation; (3) the ability of the accused to communicate on request with the outside world; (4) the accused's age, intellect, and background; (5) the fairness of the officers in conducting the interrogation; and (6) the accused's fluency with the English language.”


In this case only the confession was recorded – not the interrogation.  As a result, “Randolph emphasizes that “[w]hether the 15–minute recorded statement ... was voluntary or involuntary was squarely dependent on what happened during the 1–hour–15–minute interrogation that preceded it.” He argues a recording of the entire interview would be more reliable evidence than the conflicting testimony of Randolph and Cantwell regarding what was said during the interview and “the formal recorded confession, and the unrecorded interrogation that preceded it, are so inextricably intertwined that the voluntariness of the first cannot be determined without knowing precise details of the second.”


“Certainly, a recording would be more accurate than most human's memories. And the State, by not recording the entire interview, has unnecessarily raised a negative inference that it has something to hide. It also risks a ruling that the recording is not admissible because it does not accurately reflect the entire interview. Consequently, the better practice and the one we advise is for law enforcement officers to record the entire interview with a suspect when they are planning to record parts of the interview and recording equipment is available. (emphasis added)


“Nevertheless, Randolph does not cite any authority for his argument that a trial court does not have a sufficient basis for making findings following a Jackson v. Denno hearing if a portion of an interrogation is not recorded. Certainly, the lack of a recording does not make this case unique from numerous cases considered by this and other courts. Nor is there anything unique about the specific facts of this case. The State presented the trial court with Cantwell's testimony regarding both portions of the interrogation, and Randolph had the opportunity to cross-examine Cantwell. The evidence submitted was sufficient to overcome the negative inference the State unnecessarily created and to meet the State's burden of proof. In addition, Randolph's trial testimony mitigates any suggestion he was coerced into a false confession by Cantwell's suggestions.”


Click here for the complete decision.


Court rules that polygraph examination is not a search


In US v. Davis (May 2013) the US Distrit Court, D. Montana, ruled that a polygraph examination was not a search within the meaning of the Fourth Amendment.


Mr. Davis argues the a polygraph exam is a “search” within the meaning of the Fourth Amendment, as it detects and records personal physiological data not readily observable. …. Mr. Davis contends that his polygraph exam ran afoul of the Fourth Amendment because it was conducted without a warrant and without Mr. Davis's informed, voluntary consent. Mr. Davis argues that his consent to take the polygraph was based on duplicity, and therefore not informed and voluntary. Because Mr. Davis's confession was derived from the polygraph, it is “fruit of the poisonous tree” and should be excluded, he argues.


“The recent District of Montana case Unites States v. Alvarez, CR–12–96, considered legal issues and facts almost identical to those presented here. Alvarez held in the clearest terms that “A polygraph examination is not a Fourth Amendment search.” (citing Stehney, along with unpublished opinions from courts in the Ninth Circuit). Alvarez also stated that even if the polygraph was a search, there was no constitutional violation because the defendant consented.


“In light of Alvarez, Mr. Davis's argument that a polygraph is a search fails. Therefore Mr. Davis's Fourth Amendment rights were not implicated. However, testimony at the suppression hearing made clear that Mr. Davis did not event take a polygraph examination, but only participated in an interview in anticipation of the exam…Even if a polygraph were a Fourth Amendment search and even if Mr. Davis had taken one, his consent would obviate a constitutional violation.


“Mr. Davis argues his confession should be excluded under the Fifth Amendment because it was involuntary. He argues that he was overborne by a “sophisticated, and at times repetitive” polygraph examination designed to elicit a confession, rather than merely to determine whether Mr. Davis was truthfully answering the questions. The examination process carefully and subtly manipulated Mr. Davis into confessing, he argues. The confession therefore was not voluntary and should be suppressed, according to Mr. Davis.


“In Alvarez, the defendant's confession was deemed voluntary because the defendant agreed to go to the FBI office and drove himself there, was not confined during the exam, confirmed verbally and in writing that his statements were voluntary, signed forms informing him of his rights, and was an adult with no indication of low intelligence.


“The same factors exist here. Mr. Davis agreed to the exam, had a friend drive him to it, signed waivers, and acknowledged on a recording that his confession was voluntary. He is an adult who graduated high school and attended some college. He testified that he was not physically restrained or punished. The entire process was half as long as the questioning in Alvarez. Under the totality of the circumstances, the confession was clearly voluntary.

Click here for the complete decision.


Court rejects the testimony of Dr. Bruce Frumkin


In State v. Ackerman (July 2013) the Court of Criminal Appeals of Tennessee upheld a lower court’s decision to exclude the testimony of Dr. Bruce Frumkin on the defendant’s susceptibility to suggestion.  In their decision the trial court stated that, “Doctor Frumkin would not be permitted to testify about the defendant's susceptibility to suggestion because of “the loose connection between D[octor] Frumkin's knowledge and experience and the facts in this case” and because his testimony would not substantially assist the trier of fact. The court also concluded that Doctor Frumkin's testimony would “lead to confusion and misunderstanding.”


Click here for the complete decision.


Low score on IQ tests does not mean the suspect is incapable of making a voluntary confession


In Winters v. State (May 2013) the Supreme Court of Arkansas upheld the admissibility of the defendant’s confessions, even though he had an IQ of 84, which is in the category of borderline intellectual functioning.


In this case the Appellant contends that the circuit court erred in denying his motion to suppress certain custodial statements he made to police….that the officers made various promises to him, repeatedly preyed upon his concerns for his family and for giving the victims a proper burial, and then finally, due in part to his borderline intellectual functioning, coerced a confession.


In reaching their decision the Supreme Court stated the following:


“Finally, we consider Appellant's argument that his relatively low level of education and intellectual functioning contributed to the officers' ability to coerce a confession from him. The record reveals that Appellant was twenty-nine years old when he gave the statements, that his formal education ended at either the sixth or eighth grade, and that he obtained a G.E.D. while incarcerated. Appellant's expert witness, Dr. J. Michael Wood, testified that his full-scale IQ was 84, which is in the category of borderline intellectual functioning. Dr. Wood stated that this is in the low-average range and places him in the 14th percentile, meaning that 86 percent of the population has a higher IQ than Appellant. Dr. Wood explained that his full-scale IQ score was the result of fourteen tests in seven areas and that  Appellant scored significantly lower in one of these seven areas—processing speed. Dr. Wood opined that processing speed is the ability to think efficiently and fluently, especially under pressure situations. The circuit court acknowledged Appellant's IQ score and even expressly deferred to the experts on this issue, despite the court's contrary observations of Appellant during the interviews. But, as noted by the circuit court, Appellant was no stranger to the criminal-justice system, having been interviewed, and giving voluntary statements perhaps as many as six times, concerning crimes unrelated to the Bishop murders. Three officers who previously interviewed Appellant testified at the suppression hearing, and although one of them noted Appellant could not read or write well, all agreed that Appellant understood and waived his rights and gave a statement voluntarily and knowingly. We note that this court has held that a low score on IQ tests does not mean the suspect is incapable of making a voluntary confession.


In summary, our review of the totality of the circumstances indicates that the circuit court's ruling to deny the motion to suppress was not clearly against the preponderance of the evidence.”


Click here for the complete decision.


The value of video recording – intoxication and sleep deprivation


In State v. Strozier (July 2013) the South Dakota Supreme Court upheld the admissibility of the defendant’s confession, who claimed that he was too intoxicated to make a knowing and intelligent waiver of his Miranda rights. This case clearly illustrates the value of electronically recording an interrogation to diffuse such claims.  In their opinion the Supreme Court stated the following:


“There is also no evidence that Strozier's level of intoxication impaired his ability to waive his rights. “The test of voluntariness of one who claims intoxication at the time of waiving his rights ... is whether the individual was of sufficient mental capacity to know what he was saying—capable of realizing the meaning of his statement—and that he was not suffering from any hallucinations or delusions.”….  Here, Strozier does not contend that he did not know what he was saying or that he was having hallucinations or delusions. On the contrary, a review of the video recording (emphasis added) indicates that he understood what he was saying, and he was not suffering from hallucinations or delusions. This record reflects that even though Strozier had consumed alcoholic beverages, he was not so intoxicated as to be incapable of waiving his rights.”


The court also stated, “Although Strozier also claims that he was deprived of sleep, he never indicated during the interrogation that he was tired. On the contrary, the video recording shows (emphasis added) that he was alert and animated. We find that “there is no evidence that [Strozier] was so overcome by fatigue or stress as to prevent” a valid waiver of his rights….  Further, our review of the interrogation's video recording (emphasis added) reflects that Strozier understood Detective Carda's advisement of rights and the consequences of waiving them. We conclude that under the totality of the circumstances, Strozier voluntarily, knowingly, and intelligently waived his Miranda rights.


Click here for the complete decision.


The value of video recording – Spanish speaking defendant and intoxication


In State v. Palacios-Rodriguez (Argued October 2012 Decided 2013) the Superior Court of New Jersey, Appellate Division, upheld the defendant’s confession, relying extensively on the trial court judge’s review of the videotape of the interrogation. (emphasis added) In this case the “Defendant contends that his confession should have been suppressed on several theories, namely that he was illiterate and non-English speaking and therefore did not understand rights; he was so intoxicated that he was incapable of knowingly and voluntarily waiving his rights during the police interview…..”


The Superior Court stated in their opinion, “As noted, the motion judge viewed the videotape, and with regard to this portion of the interview, the judge stated:


I was very impressed with ... the amount of time that was spent with defendant by [Brazofsky] in terms of hi going over the form with this defendant, the Miranda form, even to the point of explaining what a yes and no meant, even to the point of explaining to him the checklist, even to the point of explaining to him the ramifications of each question, which was explained in Spanish to this defendant. And I must say from looking at the video ..., it appear to me that no[t] only was the language communicated to in a very correct manner—there's nothing to indicate that didn't understand the terminology that being explained to him through the interpretation....


“Likewise, in the case at bar, the trial court recognized that defendant exhibited some degree of intoxication, however, the court determined that defendant knowingly waived his rights. As evidenced by the Miranda hearing proceeding and the court's observation of the interview tape, defendant appeared to be under the continuing influence of alcohol yet was capable of communicating with the detectives and was responsive in answering questions.”


Click here for the complete decision.


California Supreme Court upholds exclusion of testimony by Dr. Richard Leo – the proffered testimony was “extremely speculative”


In People v. Linton (June 2013) the Supreme Court of California upheld the lower court’s decision to exclude the testimony of Dr. Richard Leo.  From the Supreme Court’s opinion:


“Prior to trial, defendant filed a motion to introduce the expert testimony of social psychologists Dr. Richard Ofshe or Dr. Richard Leo regarding police interrogation techniques and false confessions…. Defendant asserted such testimony was relevant to determine the voluntariness and trustworthiness of the statements he made at the police station. At trial, defendant sought to introduce the testimony of Dr. Leo.


“In a declaration submitted by defendant to the trial court in connection with his efforts to introduce this testimony, Dr. Leo averred that “[c]ontrary to public myth and mis-perception, it is well documented that police interrogators can and do elicit false confessions in response to common, psychological methods of interrogation.” According to Leo, research has established that “certain police interrogation techniques are correlated with the likelihood of a false confession” and such “research findings are beyond the common understanding of the lay person.” Leo's proposed trial testimony would address “the following general topics: the use of influence, persuasion and coercion during interrogation; how certain police interrogation techniques affect the decision-making of custodial suspects; why certain psychological techniques are coercive and their likely effects; how and why contemporary police interrogation techniques can lead guilty suspects to make the decision to confess; how and why contemporary police interrogation techniques can lead the innocent to make the decision to confess; and how to apply generally accepted principles to evaluate the reliability of confessions statements.”


“The prosecutor opposed the defense motion, arguing there was no foundation for such testimony because defendant had not recanted his confession and because there was no other evidence that his confession was false. The prosecutor also contended that the defense had failed to show the subject matter was a valid, accepted area of expertise or that the testimony would assist the jury.


“The defense countered that a recantation was unnecessary before an expert…could be called, that it would be unconstitutional to require defendant to testify his confession was false before the testimony could be admitted, that there was sufficient evidence of falsity in the testimony from both pathologists that Melissa could not have been strangled with the headphone cord in the manner defendant described, and that testimony regarding the general factors that might lead to a false confession was beyond the knowledge of an average person. The defense repeated the claims that express promises of leniency had been made to defendant and that the interviewers' questioning was coercive in light of defendant's personal characteristics.


The trial court ultimately excluded Dr. Leo's testimony under Evidence Code section 352. Specifically, the court concluded the proffered testimony was “extremely speculative” because there was no “basis or foundation” to indicate defendant's confession was false. The court noted defendant was not required to testify, but there was no evidence defendant had otherwise recanted his confession and the pathologists' testimony and the physical evidence did not establish any falsity of defendant's interview statements because the testimony and evidence were not incompatible with defendant's explanation of how he choked Melissa. Therefore, the probative value of Leo's testimony, “if any,” was substantially outweighed by its undue consumption of time.”


Click here for the complete decision.


Attorney not negligent for deciding not to use false confession expert at trial


In Wright v. Commissioner of Correction (June 2013) the Appellate Court of Connecticut upheld the lower court’s decision that the defense attorney’s conduct was not deficient

because he decided not to use a false confession expert (Dr. Richard Leo) at trial.  From their opinion:


“The petitioner claims that the court improperly concluded… that Moniz had not rendered ineffective assistance at trial despite the fact that he failed to present testimony related to false confessions from Richard Leo, an expert witness retained by the defense at the time of trial. The petitioner alleged that had Moniz taken these steps at trial, they would have cast doubt on his confession and affected the outcome of the trial.


“Also, the petitioner presented testimony from Leo, a law professor with expertise in the areas of interrogation, psychological coercion, false confessions and wrongful convictions. In relevant part, Leo opined that people with cognitive impairments, mental illnesses or those who are highly compliant, highly suggestible, weak-willed or submissive, are vulnerable to making false confessions. Leo also opined that there is a risk that police, in coercing a suspect to confess to a crime, unintentionally may “contaminate” the suspect by providing him with facts about the crime that are not generally known by the public. Later, the suspect's reference to these facts, learned only during the course of interrogation, may make his confession appear to be based on his firsthand knowledge of the crime. Leo testified that police techniques are designed to be stressful, manipulative and deceptive and that, in false confession scenarios, unintentional contamination of suspects occurs frequently.


“Leo testified that he reviewed information about the present case that he obtained from Moniz. Leo testified that there was evidence that the police used coercive techniques when they questioned the petitioner by promising him that he could go home if he provided a satisfactory statement, yelling at him, accusing him of committing the crime, confronting him with evidence concerning the crime and providing him with information about the crime. Leo opined that the petitioner learned all of the information about the crime from the police. Leo testified that he was hired by Moniz and that he testified at the suppression hearing prior to the underlying trial. He did not testify at the underlying trial, although he was available to do so.


“In denying the petition for a writ of habeas corpus, the court stated: “[T]he petitioner's claims [regarding Moniz' failure to pursue psychiatric or psychological testing or to call Leo as a false confession expert at trial] merely challenge trial counsel's strategy in contesting the confession. This is not a case in which trial counsel missed the key issue. Moniz filed and vigorously pressed a motion to suppress, even calling Dr. Leo as an expert on false confessions, which was unusual for that time, ten years ago, in our legal history.... Moniz then made his main theory of defense at trial to be that the confession was false. What the petitioner is doing now is launching highly technical attacks on the precise strategy that Moniz employed in raising this issue.”


Click here for the complete decision.




Improper interrogator behavior


In State v. Garcia (April 2013) the Supreme Court of Kansas reversed the defendant’s conviction, finding that the interrogator’s behavior led to a coerced confession.  The Supreme Court stated that, “Garcia contends that the district court erred in finding that the totality of the circumstances established that his confession to participating in the robbery was freely and voluntarily given. He emphasizes two circumstances that gainsay voluntariness: (1) The interrogating officers withheld requested medical treatment and pain medication for Garcia's gunshot wound until the interrogation was completed; and (2) the State used promises of leniency to induce the confession. We agree with Garcia; the manner in which his ultimate confession to robbery was obtained was unconstitutionally infirm.


“We turn now to Garcia's specific complaint that the officers denied him medical treatment for the purpose of inducing a confession. The district court considered Garcia's gunshot wound and accompanying pain only as it related to his ability to lucidly communicate with the law enforcement officers. In that regard, the district court was willing to accept the fact that Garcia was in pain, so long as the pain was not so acute as to affect his ability to know what he was doing or saying. But a knowing confession is not a voluntary confession if it is coerced, i.e., if it is not the product of free will. The inquiry, then, is whether the officers' withholding of medical treatment influenced Garcia's decision to confess to the robbery. If law enforcement officers make an accused endure pain, even less than debilitating pain, until the accused gives a statement that the officers will accept, the voluntariness of that confession is, at best, suspect. The record indicates that was the circumstance here.


“As previously noted, Garcia requested medical treatment within the first half hour of his detention. The detective responded, “Give me a couple minutes,” and said he just wanted to know who was with Garcia on the night of the incident. When Garcia cursed at his pain, the detective responded by saying that Garcia should “hang on, just give me about five seconds here and answer this question.” But after Garcia answered that question, the detective continued with 18 more questions before asking: “You need something, you want somebody to take a look at that?” Although Garcia answered in the affirmative, the detective left the interrogation room and returned to resume questioning without providing pain medication or medical treatment. Shortly thereafter, the detective asked why Garcia had not gone to the doctor after being shot, to which Garcia responded that he “was just paranoid, sir, to be honest with you.” A little later, the detective asked if the bullet was still in Garcia's body and inquired as to whether there was one hole or two. Although Garcia's response was equivocal, the detective moved right back to questioning before leaving the room again.


“We discern that certain things are patently obvious from the words and actions of the law enforcement officers conducting Garcia's interrogation. First, the officers knew that Garcia had been shot in the foot with a firearm; that he probably still had the bullet inside his body; that he had not received professional medical treatment for the wound; and that he was experiencing pain from the injury at the time of the interrogation. Next, Garcia was not going to be provided any medical attention or pain relieving medication until the officers had completed their questioning and took him to the hospital to retrieve the bullet for evidence. Further, the officers appeared unlikely to complete their questioning until Garcia gave them the statement that they believed to be true, which was that Garcia participated in the robbery.


Regarding the issue of whether or not a promise of leniency was offered to the defendant, the Supreme Court stated that, “Law enforcement coercion can be mental as well as physical…. It is well settled that an extrajudicial confession will not be received in evidence unless it has been freely and voluntarily made. If it has been extorted by fear or induced by hope of profit, benefit, or amelioration, it will be excluded as involuntary…. In order to render a confession involuntary as a product of a promise of some benefit to the accused, including leniency, the promise must concern action to be taken by a public official; it must be such that it would likely cause the accused to make a false statement to obtain the benefit of the promise; and it must be made by a person whom the accused reasonably believed had the power or authority to execute it…. Moreover, there must be a link between the State's coercive conduct and the confession.


“The foregoing exchange did not stop short of promising a benefit to Garcia in return for his confession to robbery. The promised benefit was clearly stated: “They're not going to book you for murder.” That was the same carrot that the officers had been unsuccessfully dangling in front of Garcia for hours.


“The promise concerned action to be taken by a public official, i.e., the law enforcement officer who would process Garcia into jail. The promise was one that would likely cause the accused to make a false statement to obtain the promised benefit, i.e., the ability to make a murder charge and accompanying life sentence go away would be a strong motivator for prevarication.


“The law enforcement officers' coercive tactics and promises of leniency, in the context of the circumstances of the entire interrogation, convince us that the confession here was not a product of the accused's free will, i.e., was not voluntary. Accordingly, we find that the district court erred in refusing to suppress the defendant's confession.”


Click here for the complete decision.


Court excludes the testimony of Dr. Richard Ofshe on false confession issues – no requirement to record interrogation


In Commonwealth v. Harrell (April 2013) the Superior Court of Pennsylvania upheld the lower court’s decision to exclude the testimony of Dr. Richard Ofshe.  From their opinion:


“Prior to trial, a Frye hearing was conducted to determine whether expert testimony would be allowed on the subject of false confessions. The Court held a two-day hearing and took testimony from “experts” in the field of false confessions and from others who refute the validity of such scientific endeavors. The Court determined that evidence of false confessions was not sufficient to pass the Frye standard and precluded the admission of such evidence at trial.


Recently, in Commonwealth v. Szakal, 50 A.3d 210 (Pa.Super.2012), 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.”


“... appellant argues that his due process rights were violated by the failure to record his interrogation and confession. Appellant argues that the failure to record his interrogation deprived him of an opportunity to establish that his confession was involuntary and the product of police coercion. According to appellant, the police deliberately failed to record the interrogation so… that appellant would be unable to contest the voluntariness of his confession by examining the surrounding circumstances including the police tactics employed, the length of questioning, promises made, etc. (Appellant's brief at 24–25.)


In Commonwealth v. Craft, 447 Pa.Super.

 371, 669 A.2d 394 (1995)

, 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.”


Click here for the complete decision.


A promise of leniency: “[e]verybody gets a clean slate when they turn 17”

In People v. Travis (Feb. 2013) the Appellate Court of Illinois, Third District, carefully examined the elements that are necessary to establish that a juvenile confession was voluntary.  The court concluded that in this instance the defendant’s confession was involuntarily given.  The focal point of this decision is outlined by the court:

“Furthermore, we believe the manner in which the police conducted the recorded, fifth interview weighs toward a finding that the defendant's confession was involuntarily given. Specifically, Nicodemus made misleading promises of leniency to the defendant during the recorded, fifth interview.

“To constitute an offer of leniency that renders a confession inadmissible, a police statement must be coupled with a suggestion of a specific benefit that will follow if the defendant confesses.” …. At the time of the defendant's offense, a juvenile who was at least 15 years old at the time of the offense and who was charged with first degree murder had to be tried as an adult…. While we acknowledge that the defendant had not been charged before he confessed and that it is the prosecutor who has the discretion to decide what charges to bring against an accused… we believe the clear import of Nicodemus's statements to the defendant was to assure him that he would remain in juvenile court no matter what crime he was charged with in connection with the shooting of Villagomez. Nicodemus stated to the defendant:

“People make mistakes. You're a juvenile. Juvenile system's very forgiving, very understanding when people mess up. Crimes that you commit when you're a juvenile you're not even tried as an adult sometimes. You don't even get the maximum penalties. You don't even do that. Everybody gets a clean slate when they turn 17. You're lucky that you're less than 17, okay? But in order to get those breaks, to get those chances, you have to show some remorse, some compassion, and not just be * somebody that doesn't have a conscious [ sic ], somebody that throws other people's names out there. You gotta be somebody that takes responsibility for their actions because if you don't do that, you're never gonna get any breaks. No one's ever gonna look at you as this kid's worth taking a chance on.”

Significantly, Nicodemus's statement to the defendant that “[e]verybody gets a clean slate when they turn 17” indicated to the defendant that if he confessed to shooting Villagomez, he would receive some leniency as a juvenile. The videotape shows that these statements were not lost on the defendant, either, as he asked twice after confessing when he would be taken to the River Valley Juvenile Detention Facility in Joliet. Under these circumstances, we find that Nicodemus's misleading promises of leniency to the defendant during the recorded, fifth interview weigh in favor of a finding that the defendant's confession was involuntarily given.’

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Court allows Dr. Richard Leo to testify on false confession issues

In Caine v. Jon Burge, et al., (Mau 2013) the U.S. District Court, N.D. Illinois, ruled that “Dr. Leo will be permitted to testify to various factors that can cause false confessions, and to their presence in this case. Dr. Leo will also be permitted to generally testify that, based on his knowledge, experience, and study of confessions and police interrogation, false confessions frequently do not contain the type of crime scene knowledge that only a true perpetrator would have, and that some false confessions contain such detail because of police contamination. However, Dr. Leo will not be allowed to testify as to his opinion that Caine's and Patterson's confession statements were false. In particular, he will not be allowed to testify as to his comparison of the witnesses' confessions and the physical evidence of the crime. That is decidedly a jury question and allowing Dr. Leo to opine on that subject would invade the province of the jury. Specifically, the Court will not allow Dr. Leo to testify to the opinions included in his report dated January 10, 2013 at pages 31 (second full paragraph), page 32 (entirety), page 46 (second paragraph), and page 47 (first paragraph, carried over from page 46). Obviously, statements in his report beyond these paragraphs that deal with the same type of testimony are similarly disallowed ( i.e., the statement in his conclusion that the confessions are unreliable).

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Fish and Game officers did not have to make an advisement of rights on a roadside stop

In Hall v. Idaho Dept of Fish and Game (June 2013) the U.S. District Court, D. Idaho, ruled that Fish and Game officers did not have to make an advisement of rights on a roadside stop.  From the court’s opinion:

“The Ninth Circuit has identified five factors to consider in making the custody determination: (1) the language used to summon the individual; (2) the extent to which the defendant is confronted with evidence of guilt; (3) the physical surroundings of the interrogation; (4) the duration of the detention; and (5) the degree of pressure applied to detain the individual.”  These considerations are not exhaustive.

“After applying all of these factors to the facts of this case, the Court concludes that Soumas' interrogation of Hall was not custodial. The interview took place on the side of a public road, 100 yards from a campground where a family camped. Only two officers were present—only one of whom asked questions. There is no evidence that the two officers surrounded Hall. They did not display their weapons, raise their weapons, or threaten Hall, other than to suggest that Hall had the option to be questioned at the station, rather than on the road. Hall was never physically restrained—he was not surrounded by Soumas and Bogar or handcuffed or forced to sit in the back of Department vehicle. Soumas never pressured Hall with the threat of arrest, and he never placed Hall under arrest. At the close of the approximately hour interview, Hall drove away without hindrance—leaving before Soumas and Bogar moved their vehicles. All of these factors point toward a non-custodial interrogation.

“Under the doctrine announced in Terry v. Ohio, 392 U.S. 1, 30 (1968), a law enforcement officer may briefly detain a person for investigatory purposes if he or she has a reasonable suspicion supported by articulable facts that criminal activity is afoot. United States v. Sokolow, 490 U.S. 1, 7 (1989). A routine Terry stop is not “custody” triggering the need for Miranda warnings, even though the officer briefly detains the suspect, and the suspect is not free to leave. See, e.g., Butler, 249 F.3d at 1098.

Soumas and Bogar also acted appropriately in the course of the stop. When Hall and Liermann returned to the truck, Soumas approached without his weapon drawn. Soumas saw that the men were wearing camouflage and had blood on their clothes. Soumas asked the men to identify themselves and tell him what they were doing. Given that it was reasonable to suspect Hall and Liermann of shooting two elk out of season, Soumas' inquiry was clearly related in scope to the justification for its initiation.”


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