Legal Cases Sorted by Category

On a regular basis over the last 10 years we have published on our website and through our quarterly newsletter legal updates of current cases which address relevant interview and interrogation issues. In this document we have attempted to categorize those hundreds of cases into a number of categories for easy reference. We will continue to update this list on a regular basis.

If you cannot find a case reference that specifically addresses one of your issues, please go to our home page at www.reid.com and click on the Search button on the home page and type in your inquiry.

We do not offer legal advice, but simply report on court decisions.

Categories:

Expert testimony on witness credibility

 

(Investigator should not be allowed to testify about the defendant's credibility)

 

In US v. Hill (2014) the US Court of Appeals, Tenth Circuit, ruled that, "Admission of expert opinion testimony as to defendant's credibility was plain error warranting reversal of defendant's convictions for bank robbery and related crimes, even though defendant did not testify, where expert's testimony did not involve specialized psychiatric knowledge, but merely asserted opinion as to veracity of explanation that jury was capable of resolving without expert testimony, government's case against defendant was not strong, and there was reasonable probability that but for expert's improper testimony, result of defendant's trial would have been different."

 

From the court's opinion:

 

"Stanley Hill appeals following his conviction on several charges related to the robbery of a bank. During trial, Charles Jones, a special agent with the Federal Bureau of Investigation ("FBI"), testified as an expert. Agent Jones stated that he was trained in "special tactics and ways to identify [ ] deception in statements and truths in statements" and that in his opinion, many of Stanley's ... answers were not worthy of credence and "[did] not make sense." Jones claimed that Stanley displayed evasive behaviors "common among the criminal element to keep law enforcement at bay" during an interrogation. When asked about Stanley's statement that he would rather die than face charges, Jones testified, "Never in my career have I seen that with an innocent person." And when the prosecutor asked about Stanley's repeated invocations of God in support of his truthfulness, Jones stated, "My training has shown me, and more[ ]so my experience in all these interviews, when people start bringing faith into validating [ ] their statements, that they're deceptive. Those are deceptive statements."

 

Jones also testified about the interrogation of Stanley. He stated that he had attended "two specialized courses in interrogation and interviews, including the Reid school, which is a higher-level school of interrogation and interviewing." He explained:

 

[T]he Reid school is designed to—as an interview process and interrogation process; part of that is psychological as well. It's much like your five-year-old children and how you can break down a story or you understand what's going on during the process of that interview.

 

In the Reid school, you're trained on some special tactics and ways to identify on deception in statements and truths in statements. That school is a sought-after school for investigators and interviewers because of the caliber of that training you do get towards that endeavor.


Jones further stated that he had conducted over a thousand interviews as an FBI agent.

The prosecution asked, "in reference to [his] earlier testimony regarding [his] training and experience in interrogating and interviewing," what Jones "based on [his] training and experience" took from the interrogation "as to [Stanley's] truthfulness." Jones responded:

 

[T]he most difficult thing to tell the difference in is partial truths, ... something that's partly true, that's a lot harder to detect than a flat-out lie or a convicting [sic] truth.

 

So during the course of that interview, we were able to, as trained eyes, pick out that this isn't—these are partial truths, at best. And several of those are—they're shown through things that are not purposely said or done by the interviewee. They are responses that occur naturally, that's a psychological thing that happens, that we don't control.

 

For example, in this case, and I've seen it in other interviews, a mumbling of something that they don't want to talk about. You may say, I was at the grocery store at three or whatever or whatever, and you will go away from the question and just discount that as something you don't need to know, Mr. Police Officer. And there was much of that going on throughout the interview, for whatever, or whatever, and whatever with Mr. Stanley Hill's interview, occurred on a continuous basis, just avoiding—it's a way to avoid the question without just flat out saying, I'm not going to talk to you.

 

The prosecutor then asked, "In reference to the substance of the responses that were provided ... how does that factor into your observations of whether he's being truthful or not?" She provided Stanley's claim that he planned to babysit his step-sister at the East Pine home as an example of "the substance of responses." Jones answered that Stanley's version of events "does not connect [the] dots," "does not make sense," and was "not something that [he] viewed as reasonable." Specifically, Jones doubted that if Stanley was going to be "responsible for a child," he would immediately fall asleep "and never w[a]ke up while somehow bank robbery money got stuffed in the oven drawer of your house, and then the bank robbers ran away before the police could get there, and you didn't hear anything, but you were waiting on somebody to arrive in this unlocked house in north Tulsa."

 

Jones then identified several factors that contributed to his opinion that Stanley was being untruthful during the interview. He noted that after Stanley was told that police found items connected to the bank robbery in the East Pine residence, Stanley's story ha[d] to change a little bit. And prior to that, I wasn't sleeping that hard. After that, "to my knowledge," "to my knowledge."

 

I can't question his knowledge. I cannot say, I know what you knew. But he could evade the question by saying, "well, to my knowledge," because that's something I cannot corroborate. That is a move that is common among the criminal element to keep law enforcement at bay and not be able to determine the actual facts of what happened.

 

Jones also stated that Stanley's assertions that he "had no will to live" were indicative of guilt, testifying: "I have not seen, in my experience, an innocent person willing to die because they were talking with police officers and FBI agents. Never in my career have I seen that with an innocent person." He continued: "I also don't reasonably believe an innocent person would want to die because they were being talked to by police officers. It doesn't make sense to me." The prosecutor asked if, "in [Jones'] experience, has it been a demonstration of consciousness of guilt that an individual will want to die rather than tell the truth." Jones responded, "In my experience, sometimes people believe death would be better than a long-term prison sentence."

 

The prosecution also asked how Jones viewed Stanley's "call on his faith or swearing to God" during the course of the interview. Jones testified:

 

Beyond my own religious feelings towards what he was saying, the training that I've received, that is a common way that somebody with guilt will want to validate the story they're telling you. They can't validate it with facts, so they hope they can get you to believe them, because they're trying to validate their story through a supposed belief.

 

He may be a God-fearing man, I do not know that, but the truth is the truth. You do not have to back the truth. When I'm asked a question, is the car blue, the car is blue. I don't have to swear to God. I do not have to bring religion into that statement. The truth is the truth.

 

My training has shown me, and more[ ]so my experience in all these interviews, when people start bringing faith into validating of their statements, that they're deceptive. Those are deceptive statements.


Defense counsel did not make any objections during Jones' testimony about the truthfulness of Stanley's statements. Jones was the final witness at trial. During closing argument, the prosecutor referred the jury back to Jones' testimony, stating that Jones "in scrutinizing this interview with Stanley Hill ... has to figure out what's truthful in this interview, what's he trying to hide."

Stanley does not argue that Jones was unqualified to offer the opinion he provided, but instead that the subject matter of his testimony-the credibility of another person-may not be addressed by an expert testifying under Rule 702. We agree. As this court made clear ... "[t]he credibility of witnesses is generally not an appropriate subject for expert testimony." ... There are several reasons for the prohibition against expert testimony on other witness' credibility. Such testimony: (1) "usurps a critical function of the jury"; (2) "is not helpful to the jury, which can make its own determination of credibility"; and (3) when provided by "impressively qualified experts on the credibility of other witnesses is prejudicial and unduly influences the jury." Id. (citations omitted).

 

This testimony plainly violated Rule 702 and our case law interpreting the rule. Even if Agent Jones arguably had "specialized knowledge,"... , on the subject of interrogations, his testimony on Stanley's credibility fails under Rule 702 because it "encroache[d] upon the jury's vital and exclusive function to make credibility determinations, and therefore [did] not assist the trier of fact." ... (quotation omitted). He simply informed the jury that Stanley's version of events was unworthy of belief based on his opinion of what is generally "reasonable."   Click here for the complete decision.         

 

In US v. Benedict (2013) the US District Court, D. Minnesota, excluded the testimony of an expert witness on the issue of witness credibility. In their opinion the District Court stated the following:

"While Defendants argue that the proffered testimony of Dr. Neuschatz will be helpful to the jury, the Court disagrees. Based on his affidavit, it appears that Dr. Neuschatz would opine about the "persuasive" and "corruptive" power of confession evidence--i.e., the evidence of cooperating witnesses.... He avers, "Without expert assistance, jurors' abilities to assess the veracity of a witness's testimony are extremely limited." ... The Eighth Circuit has stated that

[b]ecause expert evidence can be both powerful and quite misleading, a trial court must take special care to weigh the risk of unfair prejudice against the probative value of the evidence under Fed.R.Evid. 403. It is plain error to admit testimony that is a thinly veiled comment on a witness's credibility....

....... This is because "[w]eighing evidence and determining credibility are tasks exclusive to the jury, and an expert should not offer an opinion about the truthfulness of witness testimony." 
Click here for the complete decision. 

In US v. Knapp (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.

In State v. Miller (2012) the Court of Appeals of Wisconsin ruled that
comments of detective during video-recorded interview with defendant which was played for jury, stating that defendant was lying during the interview, did not violate the Haseltine rule prohibiting a witness from giving an opinion on whether another witness is telling the truth.


Relying on Haseltine, Miller contends the video should not have been played for the jury because in it Primising tells Miller multiple times he is lying..... Miller points out that Haseltine prohibits a witness from giving an opinion on whether another witness is telling the truth because it invades the jury's role as the sole determiner of credibility. We conclude that because the comments made by Primising on the video were made in the context of a pretrial police investigation and were not made as sworn testimony in court, the Haseltine rule was not violated. 
Click here for the complete decision.      

 

In Washington v. Barr (2004) the Washington Court of Appeals found that the testimony by a police officer that in his opinion the behavior of the defendant suggested deception (which he learned as part of the "Reid Investigative Technique") was, in fact, impermissible testimony because it invaded the province of the jury.   Click here for the full decision.

 

Pre-arrest Silence

 

(Pre-arrest silence cannot be used as substantive evidence of guilt)

In Commonwealth v. Molina (November 2014) the Pennsylvania Supreme Court held that "the defendant's right against self-incrimination was violated by use of his pre-arrest silence as substantive evidence of guilt." From the Supreme Court's opinion, here are the case details.

"In this case, a jury convicted Michael Molina (Defendant) of third degree murder and related crimes resulting from the savage beating of Melissa Snodgrass (Victim), apparently as a result of drug debts owed by Victim to Defendant.

The issue presented to this Court requires consideration of the Missing Persons Unit detective's testimony and the prosecutor's closing arguments regarding the early days of the investigation into Victim's disappearance. Following a lead that Defendant was holding Victim against her will, the Missing Persons Unit detective assigned to the case went to Defendant's house two days after Victim's disappearance. Pamela Deloe, a second primary prosecution witness, answered the door and asserted that neither Victim nor Defendant were at the house. Accordingly, the detective left her card and asked that Defendant call her. Later that day, Defendant called the detective.

The detective testified regarding the phone call from Defendant:

I asked him--well, before I could even ask him if he was aware of [Victim] being missing, he stated to me that there were--that he didn't know where she was. It was out on the street that someone said that he was involved in her being missing and it wasn't him.

Notes of Testimony ("N.T."), Dec. 14-20, 2006, at 480. The detective then inquired as to when Defendant had last seen Victim. He initially responded that he had not seen her for a year and a half, but then he immediately contradicted his statement, claiming instead that he had not seen her for three months. Subsequent to this contradiction, the detective testified that she asked him to come to the police station to speak to her and he refused:
A. Yes. After he stated that, I asked him if he could come into our office and sit down and talk with me about the case, and he refused. He said he refused to come in.

Q. So this contact that you had with him was over the telephone. Is that what you're saying?

A. Yes, it was over the telephone.

... Defense counsel did not object to the reference to Defendant's refusal to come into the office. In due course, the prosecution concluded its questioning of the detective, and defense counsel did not pursue that issue in his cross-examination...
During closing argument, the prosecutor accentuated Defendant's refusal to go to the police station, and when defense counsel objected, the prosecutor stated before the jury that it was not improper to comment on Defendant's pre-arrest silence:

[Prosecutor:] Look also at what happened in terms of the police investigation in this matter. Three days after this young lady goes missing, three days after she goes missing, detectives are already knocking on the defendant's door because of something they heard, maybe he was holding this person against their [sic] will, and he calls the police back and is very defensive. I mean, before a question's even asked, he denies any knowledge or any involvement with this young lady. He makes contradictory statements to the police about when's the last time that he saw her. First he says, "I saw her a year and a half ago." Then he says, "I saw her three months ago." But most telling, I think, is the fact that the officer invited him. "Well, come on down and talk to us. We want to ask you some more questions about this incident, your knowledge of this young lady," especially because he made these contradictory statements. And what happens? Nothing happens. He refuses to cooperate with the Missing Persons detectives. And why?

Click here for the complete decision.

I. Salinas v. Texas


In February 2013, we placed the case on hold pending the decision of the United States Supreme Court in Salinas v. Texas, which, inter alia, raised a claim regarding the use of pre-arrest silence as substantive evidence. As discussed below, the plurality decision of the High Court in that case did not resolve the issue, but instead affirmed the use of the defendant's silence in a fractured decision. Salinas v. Texas, --- U.S. ----, 133 S.Ct. 2174, 186 L.Ed.2d 376 (2013). Prior to hearing argument, we allowed the parties to submit supplemental briefing addressing Salinas.

Salinas involved a defendant who was interviewed by police regarding a double murder in Houston. At the time of the interview, Salinas had not been arrested nor provided Miranda warnings. Initially, Salinas answered the officer's questions. However, when the officers inquired whether the shotgun shell casings recovered from the scene would match Salinas's gun, he "[l]ooked down at the floor, shuffled his feet, bit his bottom lip, cl[e]nched his hands in his lap, [and] began to tighten up." .... "After a few moments of silence, the officer asked additional questions, which petitioner answered."

While the High Court had accepted review in Salinas to resolve the split between the lower courts regarding the applicability of the Fifth Amendment to the use of a non-testifying defendant's precustodial silence as substantive evidence of guilt, it eventually divided on how to resolve the case. Three justices in the lead opinion did not speak to the use of pre-arrest silence as substantive evidence and instead dismissed Salina's claims because "he did not expressly invoke the privilege against self-incrimination in response to the officer's question.".... Two concurring justices did not address the issue of express invocation, but opined that "Salinas' claim would fail even if he had invoked the privilege because the prosecutor's comments regarding his precustodial silence did not compel him to give self-incriminating testimony." .... Finally, four dissenting justices determined that no ritualistic language was needed to invoke the right against self-incrimination, which was implied by the circumstances, and concluded that Salina's right was violated.... Accordingly, as three justices opined that Salinas did not properly invoke his privilege and two justices concluded that the privilege never applies to pre-arrest silence, five justices held that Salinas should not obtain relief. Given the absence of a majority on any rationale, the splintered decision, however, fails to provide guidance as to whether pre-arrest silence is ever protected under the Fifth Amendment if sufficiently invoked or what constitutes sufficient invocation of the right.


... As applied to this case, we determine that Defendant's actions in affirmatively and definitively refusing to come to the police station and ending the phone call were sufficient to invoke his right against self-incrimination and are distinguishable from Salinas's temporary muteness sandwiched between voluntary verbal responses to police questioning. Defendant's invocation is clarified upon consideration of the circumstances of the case. Regardless of whether Defendant had been officially designated a suspect, the detective's testimony demonstrated that Defendant and the detective were aware during the phone call that "[i]t was out on the street that someone said that [Defendant] was involved in her being missing ." N.T., Dec. 14-20, 2006, at 480. Indeed, the prosecutor's closing argument emphasized the detectives' suspicions, noting that three days after Victim's disappearance, they were "knocking on the defendant's door because of something they heard, maybe he was holding this person against their [sic] will."... Moreover, it appears that the detective's suspicions were further raised when Defendant contradicted himself in regard to when he had last seen Victim, prompting her to request that he come to the station. Thus, at the least, both parties to the phone call were aware that he was suspected in the disappearance of Victim, even though the detective was unaware that the case involved a murder. We conclude that refusing to come to the police station to speak further with a detective and ending the phone call, in light of the circumstances of the case, constitutes an invocation of his right against self-incrimination, even absent a talismanic invocation of the constitutional provision.

Accordingly, we conclude that our precedent, and the policies underlying it, support the conclusion that the right against self-incrimination prohibits use of a defendant's pre-arrest silence as substantive evidence of guilt, unless it falls within an exception such as impeachment of a testifying defendant or fair response to an argument of the defense."

Click here for the complete decision.

 

Court decisions re inappropriate/impermissible investigator statements

 

In general

 

(Violation of Garrity rule nullifies admissibility of incriminating statement)

In US v Goodpaster (December 2014) the US District Court, D. Oregon, ruled that "Goodpaster's motion to suppress is granted, based on his "penalty situation" argument under Garrity v. New Jersey, 385 U.S. 493 (1967), and its progeny." Eric Goodpastor was an employee of the US Postal Service who was suspected of stealing parcels containing prescription drugs mailed to veterans from the U.S. Department of Veteran Affairs. Goodpastor confessed that he had become addicted to his pain medication and, approximately a year and a half ago, had begun stealing packages from the mail that contained medications belonging to and intended for others. From the US District Court's opinion:

"In Garrity, a state employer questioning its employees informed them of their right to remain silent--and that if they exercised it, they would be fired.... Faced with the choice "either to forfeit their jobs or incriminate themselves," the employees confessed... The Court held that the state may not put its employees to such a choice and reversed their convictions....

The Garrity rule has since been generalized to any situation in which the government seeks to "impose substantial penalties because a witness elects to exercise his Fifth Amendment privilege." ... Thus, "loss of job, loss of state contracts, loss of future contracting privileges with the state, loss of political office, loss of the right to run for political office in the future, and revocation of probation all are 'penalties' that cannot be imposed on the exercise of the privilege."

In this case, Goodpaster was subject to a regulation, 39 C.F.R. S 230.3(a), requiring that he "cooperate with all audits, reviews, and investigations conducted by the Office of Inspector General." The same regulation provides that "failing to cooperate ... may be grounds for disciplinary or other legal action." He was also subject to a workplace policy that required him to "cooperate in any postal investigation, including Office of Inspector General investigations" and that provided for "appropriate disciplinary measures" should he not cooperate....

Where the state has created a penalty situation but wishes to elicit testimony for use in criminal proceedings, it has an easy and effective remedy: Retract the employment-related threat that created the penalty situation. The state need only assure the employee, before it questions him, that he will not be punished solely for asserting his Fifth Amendment privilege. This simple remedy, frequently styled a " Garrity warning" in mimicry of the Miranda warnings, has been recognized by both the executive branch and the federal courts. See Wray Memorandum at 466 ("[W]hen a federal employee is interviewed ... by an Office of Inspector General, the agents should provide the employee with an advice of rights form ... commonly referred to as the ' Garrity ' warning.")....

The Supreme Court has not yet had occasion to decide what constitutes an effective Garrity warning... But the government has several variations at its disposal. The U.S. Department of Justice offered the following model warning in an attachment to the Wray Memorandum:

*This is a voluntary interview. Accordingly, you do not have to answer questions. No disciplinary action will be taken against you solely for refusing to answer questions.

Wray Memorandum at 468. The U.S. Department of Veterans Affairs OIG, to which SA Epperson belongs, provides the following, somewhat narrower warning:
If you refuse to answer the questions posed to you on the grounds that the answers may tend to incriminate you, you cannot be removed (fired) solely for remaining silent; however, your silence can be considered in an administrative proceeding for any evidentiary value that is warranted by the facts surrounding your case.

To summarize, when a government employee is questioned by his employer, the Constitution does not require the government affirmatively to announce "[w]hether [it] is wearing one hat or the other (or both)." ... But here, by threatening to punish Goodpaster's silence (and not retracting that threat), the Government donned the hat of employer. The Constitution holds it to that choice. Goodpaster's statements are suppressed."

Click here for the complete decision.

 

(Confession rendered involuntary when defendant told he could not get a fair trial because of his race)

 

In Bond v. State (May 2014) the Indian Supreme Court ruled that the defendant's confession was rendered involuntary by statements from the detective that due to the fact the defendant was African American he might not receive a fair trial.

 

From the court's opinion: "But with respect to the detective's statement that Bond might not receive a fair trial because of his race and the likely composition of a prospective jury, our sentiment goes beyond the trial court's "great concern" and the Court of Appeals majority's disapproval of it as being "inappropriate." This is not a police tactic that we simply "do not condone" because it is deceptive. Instead, this was an intentional misrepresentation of rights ensconced in the very fabric of our nation's justice system—the rights to a fair trial and an impartial jury, and the right not to be judged by or for the color of your skin—carried out as leverage to convince a suspect in a criminal case that his only recourse was to forego his claim of innocence and confess. And like Judge Kirsch, we condemn it.

 

... in this case Bond was intentionally deceived as to the fairness of the criminal justice system itself because of the color of his skin. Regardless of the evidence held against him or the circumstances of the alleged crime, he was left with the unequivocal impression that because he was African American he would spend the rest of his life in jail. Unless he confessed. And in unfortunate days gone by, this might have been the case. But no one wants to go back to such a time or place in the courtroom, and so we will not allow even the perception of such inequality to enter the interrogation room.

 

Thus, in considering the totality of the circumstances surrounding Bond's interrogation, despite the otherwise permissible conduct by the detective, and despite Bond's apparent maturity, health, education, and the favorable conditions of the interrogation, this deception by the detective tips the scale to involuntariness."


Click here for the complete decision.

 

(Anatomy of a false confession case)

 

In Halsey v. Pfeiffer, et al. (April 2014) the US Court of Appeals, Third Circuit reversed the lower court's decision to grant the appellees a summary Judgment on Halsey's coercion claim.  From the Court of Appeals opinion:

 

"The facts underlying this appeal—many of which are undisputed—are hardly believable. Plaintiff–Appellant, Byron Halsey, a young man with limited education, learned that the two small children for whom he had been caring had been tortured and murdered. He wanted to help in the investigation of these heinous crimes but found himself isolated in a police interview room, accused of the murders, told he had failed a polygraph examination (that we now know he passed), and confronted with false incriminating evidence. For a time he maintained his innocence, but, after being interrogated for a period extending over several days, and in a state of great fear, he signed a document purporting to be his confession to the crimes. Subsequently, he was charged, indicted, convicted, and sentenced to prison for two life terms. But his "confession" contained details that the investigators must have inserted because Halsey could not have known them. And the real killer, though he had a record of sexual assaults, was known to the police, and was an obvious potential suspect as he lived in an apartment next to the one that Halsey, the children, and their mother occupied, avoided arrest despite nervously asking the investigating detectives whether he would be "locked up." Finally, after 22 years the State of New Jersey released Halsey from prison, not because trial error cast doubt on the result of his criminal trial, but because it had been established beyond all doubt that he had not committed the offenses. Except when an innocent defendant is executed, we hardly can conceive of a worse miscarriage of justice.

 

After his release, Halsey filed this civil action under 42 U.S.C. S 1983 with supplemental state-law claims alleging that state actors and entities involved in his prosecution had violated his constitutional rights. The defendants included, inter alia, defendants-appellees Frank Pfeiffer and Raymond Lynch, the two investigating police officers who Halsey claims (1) fabricated the oral confession that led to the prosecutor filing charges against him, (2) maliciously prosecuted him, and (3) coerced him into signing the fabricated confession, which was the critical evidence at his criminal trial. On appellees' motions for summary judgment, the District Court entered judgment in their favor on all three claims on February 21, 2013, because the Court believed that they had qualified immunity from Halsey's claims. Halsey v. Pfeiffer, Civ. No. 09–1138, 2013 WL 646200 (D.N.J. Feb. 21, 2013) ( Halsey ). Halsey then filed this appeal.

 

We will reverse and remand the case to the District Court for further proceedings. First, we reaffirm what has been apparent for decades to all reasonable police officers: a police officer who fabricates evidence against a criminal defendant to obtain his conviction violates the defendant's constitutional right to due process of law. Second, we reinstate Halsey's malicious prosecution claim, principally because the prosecutor instrumental in the initiation of the criminal case against Halsey has acknowledged that the false confession that appellees claimed they obtained from Halsey contributed to the prosecutor's decision to charge Halsey, and for that reason we will not treat the decision to prosecute as an intervening act absolving appellees from liability. Moreover, without that false confession, there would not have been direct evidence linking Halsey to the crimes so that the prosecutor would not have had cause to prosecute Halsey. Therefore, the District Court should not have held on the motions for summary judgment that appellees had a probable cause defense to Halsey's malicious prosecution claim. Third, we conclude that because the evidence was sufficient for a rational jury to find that appellees, who had interrogated Halsey for many hours, had coerced him into signing the false confession, the Court should not have granted appellees a summary judgment on Halsey's coercion claim."

 

In examining the coercion claim, the court stated, "The final aspect of the disposition of appellees' motions for summary judgment that we address is the dismissal of Halsey's claim that appellees coerced him into adopting a confession that they fabricated and by doing so denied him due process of law. The parties sharply dispute how we should resolve the appeal on this issue because, on one hand, the record contains evidence that appellees forced Halsey to sign the incriminating statement by overwhelming his will to continue denying his involvement in the crime but, on the other hand, there is no indication that appellees physically abused Halsey or even tricked him into signing the statement. Our review of the record, considered in the light most favorable to Halsey, convinces us that there is enough of a factual issue to warrant the conclusion that the District Court should have denied the motions for summary judgment on the coercion claim.

 

The District Court seemed to have viewed the interrogation process as a string of separated events, beginning with appellees questioning Halsey, proceeding with Propsner entering the room to review Halsey's statement, and culminating with Halsey signing his confession. It appears that, to the Court, appellees' conduct during the first stage of the process had no bearing on the resolution of the coercion issue because Halsey signed the confession later without objecting to the process's earlier aspects.

 

Our precedent forecloses the adoption of this compartmentalized view of the interrogation process in which a court considers the material events independently or disjunctively rather than as connected episodes in an ongoing process. In United States ex rel. Johnson v. Yeager, 327 F.2d 311, 314 (3d Cir.1963), we reversed the denial of a habeas corpus petition that a defendant in state custody, Wayne Godfrey, had filed. Godfrey had been interrogated for many hours, deprived of sleep and counsel, and, contrary to state law, had not been taken "promptly" for a hearing before a magistrate judge following his arrest. The bulk of Godfrey's interrogation occurred over a night before he confessed the next morning. Id. at 313. Several police officers did the questioning, but they ultimately took Godfrey to a chief detective officer in the morning to whom Godfrey formally confessed. Id. That confession "proceeded smoothly and without apparent reluctance on Godfrey's part." Id. We noted that if we considered only the last aspect of the confession process in addressing the coercion issue, we would have deemed the confession voluntary as the state court had when it admitted the confession into evidence. Id. at 315. But we rejected the conclusion of the state court and held that the "civil manner" in which the chief detective treated the defendant could not have "cured or made irrelevant the events of the preceding 21 hours." Id.

 

As we held in Yeager, and as we reaffirm today, the compartmentalized view of the interrogation process cannot be squared with settled Supreme Court precedent. "[C]oercion may have a persisting invalidating effect upon a confession," even when the confession is apparently made without "reluctance [and] in response to civil questioning in pleasant surroundings." Id. (citing Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936) and Reck v. Pate, 367 U.S. 433, 81 S.Ct. 1541, 6 L.Ed.2d 948(1961)). Thus, "[t]he events preceding the formal confession must be considered as well as its immediately attendant circumstances." Id. at 313. ... Accordingly, Halsey's signature did not extinguish appellees' alleged misconduct during the interrogation.

 

Our foregoing conclusion leaves us with the question of whether appellees' misconduct could be found to have led Halsey to make the confession. The pertinent facts on this issue, viewed in light most favorable to Halsey, are compelling. Over the course of less than two days, appellees detained Halsey, a man of limited intelligence and little education, who was unaccompanied by a friend or an attorney, for about 30 hours and questioned him almost continuously for about 17 of those hours, of which about nine were highly confrontational, a period measured from the time Pfeiffer took what Halsey called a "forceful" approach continuing to the time that Halsey signed the confession. Appellees persisted in telling Halsey that he was guilty, "hollering and screaming" at him,...  despite being aware of Halsey's mental limitations and despite Halsey's repeated protestations of his innocence. Furthermore, Halsey cried and, according to Pfeiffer, went into a trance towards the end of the interrogation. At that point Halsey, who claims that he feared for his life, signed a statement in the appellees' presence even though it included details that only the police and the murderer could have known.....  Overall, we are satisfied that Halsey presented enough evidence to withstand the motions for summary judgment on the coercion issue. It is true, as the District Court noted and as appellees repeat in their briefs, that Halsey was not beaten, bribed, or threatened. Furthermore, he was advised of his Miranda rights, and, at times, he was given breaks when being questioned. Moreover, given his prior arrests, Halsey had some familiarity in dealing with the police, though his record of repeated arrests suggests that he took away very little from those experiences. In fact, the record does not suggest that he was particularly comfortable in navigating the criminal justice system.

 

But none of these reasons could justify our affirming the order granting summary judgment. .... There is no magic set of considerations that justifies the granting of summary judgment on a coercion claim, for "a totality of the circumstances analysis does not permit state officials to cherry-pick cases that address individual potentially coercive tactics, isolated one from the other, in order to insulate themselves when they have combined all of those tactics in an effort to overbear an accused's will." Wilson, 260 F.3d at 953. When we weigh the factors militating against and favoring a finding that Halsey's confession was coerced, we are satisfied that rational jurors reasonably could find that Halsey was coerced into signing the confession.  Click here for the complete decision.

 

 

(Combination of assertion the defendant's daughter would suffer without an admission and an implied promise of leniency yield involuntary confession)

 

In State v. Ruiz-Piza (April 2014) the Court of Appeals of Oregon found that the defendant's statements were not voluntarily made.  The focus was on two issues:  the officers' assertions that the medical care received by defendant's daughter would suffer if he did not confess, and the notion that he was induced to confess by an implied promise of leniency. 

 

In their analysis the court stated:

 

We begin with the issue of G's medical care; at the outset we state our agreement with the parties that the record cannot reasonably be read to reveal that the officers threatened to withhold medical care from G in the absence of a confession, and we do not perceive that the trial court so concluded. What the officers did do, however, was cultivate and leverage defendant's fear that, unless he admitted to shaking her, G's medical care would suffer.... Having made clear that G had serious medical issues that could be ameliorated by a confession—an assertion that, as a matter of medical fact, is without any support in the record—the officers also appealed to defendant's paternal responsibilities, his religion, stated that defendant was the only one who could help G, and stated, in effect, that the way to provide that help was to tell the officers that he had accidently shaken her.   Those statements, taken in the circumstances in which they were made, constituted an "inducement through * * * fear" that was specifically calculated to capitalize on what the trial court recognized as defendant's acute vulnerability.

 

As to the implied promise of leniency: When Hurley stated "we have to have an explanation," a stark choice was put to defendant: either confess to accidentally shaking G and—in addition to securing better medical care—the officers would accept that version of events, or do not confess, and allow the officers to assume that the child had been abused. Whatever abstract legal distinction might exist between accidentally injuring a child while shaking the child and "child abuse" is of no moment; the obvious intent in drawing a distinction between the two alternatives was to induce defendant to confess to less-serious conduct than it would be assumed that he had committed in the absence of a confession. That the officers never explicitly made a promise of leniency or immunity is not dispositive; the effect of their approach was to tell defendant: "the only way to avoid having the police conclude that you are a child abuser is to tell us that you accidentally shook your daughter."

 

The Appeals court stated, "we do not decide whether either line of police conduct, standing alone, would represent an insurmountable obstacle to the state's effort to show that the statements were made voluntarily. When the inducements discussed above are taken in view of each other and the totality of the underlying circumstances of the interviews, we conclude that the trial court did not err in concluding that the statements were made involuntarily."  Click here for the complete decision.

 

 

(Interrogator's statements that defendant's ability to "speak plainly," "face-to-face" with his "case agent" would be of limited duration and, critically, would evaporate when "the lawyers [got] involved" should be avoided, but do not create a coercive environment)

In US v. Shehadeh (2012) the US District Court, E.D. New York, found that the investigator's statements to the defendant that his ability to "speak plainly," "face-to-face" with his "case agent" would be of limited duration and, critically, would evaporate when "the lawyers [got] involved" should be avoided, but were not coercive. In their decision the court stated the following:

"Essential to review are statements made to Shehadeh regarding his consultation with counsel, especially those of Agent Tinning. Tinning candidly admitted--and his contemporaneous notes confirm--that in the course of explaining the right of a suspect in custody to have an attorney with him during questioning, Tinning told Shehadeh his ability to "speak plainly," "face-to-face" with his "case agent" would be of limited duration and, critically, would evaporate when "the lawyers [got] involved." ... This followed discussion of cooperation and took place during, not after, the advice of rights. Defendant argues that, under the totality of the circumstances, this statement--followed by AUSA Kazemi's "explanation" of the legal process--fundamentally misrepresented his rights and coerced him into waiving them because these statements suggested any opportunity to cooperate was conditioned on doing so before "the lawyers get involved."

Surely, while not crossing the line as defendant protests, Agent Tinning's brief, one-time commentary about the "effects" of asking for a lawyer during post-arrest, custodial interrogation comes as close to the line demarcated by Anderson as possible. This is especially true in light of the subsequent appearance of AUSA Kazemi, whose in-custodial speech made clear that Shehadeh's fundamental choice was between cooperation and conviction. Unlike in Anderson, however, the Court finds that, under all the circumstances, Tinning's commentary was neither false nor misleading. Specifically, since Agent Tinning's colloquy with Shehadeh was actually true and was not misleading ( i.e., he never told Shehadeh that "cooperation" leading to a better result for him was not possible if he asked for a lawyer), it does not support a finding of undue coercion. ....

The interrogation process employed, however, leaves much to be desired. It was fraught with constitutional and other legal pitfalls. It is to be avoided. Nonetheless, on the totality of the circumstances, the Court finds the government has proved by a preponderance of the evidence that Shehadeh's waiver was uncoerced, knowing and voluntary.  Click here for the complete decision.      

 

(Interrogator deception that "crosses the line")

In People v. Aveni (2012) Supreme Court, Appellate Division, Second Department, New York the court stated that "This case presents us with an opportunity to decide under what circumstances the police, while interrogating a suspect, exceed permissible deception, such that a suspect's statements to the police must be suppressed because they were unconstitutionally coerced.

"Here, the defendant argues that his statements should be suppressed because the detectives improperly deceived him when they explicitly lied to him by telling him that Camillo was alive and that the physicians treating her needed to know what drugs she had taken or else she could die, and implicitly threatened him with a homicide charge by stating, "[I]f you lie to me and don't tell me the truth now ... it could be a problem."

"In this case, the detectives coerced the defendant's confession by deceiving him into believing that Camillo was alive and implicitly threatening him with a homicide charge if he remained silent. The detectives used the threat of a homicide charge to elicit an incriminating statement by essentially telling the defendant that the consequences of remaining silent would lead to Camillo's death, which "could be a problem" for him. Faced with this Hobson's choice, the defendant had no acceptable alternative but to talk to the police. By lying to him and threatening him, the detectives eviscerated any sense the defendant may have had that he could safely exercise his privilege against self-incrimination and put the People to their proof. Either he would tell them what he knew or he would face the probability of life imprisonment if Camillo died. In light of the detectives' implicit threat of a homicide charge if the defendant remained silent, we cannot conclude that the defendant voluntarily waived his Fifth Amendment privilege against self-incrimination.   
Click here for the complete decision.

 

(Confession found inadmissible - police violated Miranda and improperly misrepresented evidence to the suspect)

In Aleman v. Village of Hanover Park (2011) the U.S. Court of Appeals, Seventh Circuit, found that the police acted improperly during the interrogation of Aleman.

In their opinion the Court of Appeals stated that, "Aleman indicated a desire for the assistance of counsel twice, and only after responding to further police-initiated custodial interrogation did he agree to be questioned. He said first "I gotta call my guy" (his lawyer) and after speaking to him reported that the lawyer had told him not to speak to the police--yet Micci continued to urge him to sign a Miranda waiver. Aleman invoked his right to counsel the second time when he asked to call his lawyer again. He might have done so a third time, but was prevented when Micci or Villanueva told him to hang up and added, "I ask that you don't use the phone again until we decide what we're gonna do." When a suspect invokes his right to counsel, the police may not recommence questioning unless the suspect's lawyer is present or the suspect initiates the conversation himself.

"There is more that was wrong with the interrogation than a violation of Miranda. Micci induced Aleman's "confession" by lying to him about the medical reports. The lies convinced Aleman that he must have been the cause of Joshua's shaken-baby syndrome because, according to Micci, the doctors had excluded any other possibility. (They had not.) The key statement in Aleman's "confession" was that "if the only way to cause [the injuries] is to shake that baby, then, when I shook that baby, I hurt that baby." The crucial word is "if." By lying about the medical reports, Micci changed "if" to "because" and thereby forced on Aleman a premise that led inexorably to the conclusion that he must have been responsible for Joshua's death; the lie if believed foreclosed any other conclusion.

"In this case a false statement did destroy the information required for a rational choice. Not being a medical expert, Aleman could not contradict what was represented to him as settled medical opinion. He had shaken Joshua, albeit gently; but if medical opinion excluded any other possible cause of the child's death, then, gentle as the shaking was, and innocently intended, it must have been the cause of death. Aleman had no rational basis, given his ignorance of medical science, to deny that he had to have been the cause.

The question of coercion is separate from that of reliability. A coerced confession is inadmissible (and this apart from Miranda) even if amply and convincingly corroborated... But a trick that is as likely to induce a false as a true confession renders a confession inadmissible because of its unreliability even if its voluntariness is conceded... If a question has only two answers-- A and B--and you tell the respondent that the answer is not A, and he has no basis for doubting you, then he is compelled by logic to "confess" that the answer is B. That was the vise the police placed Aleman in. They told him the only possible cause of Joshua's injuries was that he'd been shaken right before he collapsed; not being an expert in shaken-baby syndrome, Aleman could not deny the officers' false representation of medical opinion. And since he was the only person to have shaken Joshua immediately before Joshua's collapse, it was a logical necessity that he had been responsible for the child's death. Q.E.D. A confession so induced is worthless as evidence, and as a premise for an arrest." 
Click here for the complete opinion.

 

(Confession ruled inadmissible when investigators ignored custodial suspect's request to stop)

In State v. Knyceaulas (2010) the Court of Appeals of Arizona ruled that the trial court erred in admitting the defendant's confession. Specifically, the defendant contends the detective violated his rights under Miranda by continuing to question him after he had requested to end the interview. The following exchange took place during the interrogation:

Mr. Brown: So are-are you taking me to jail now or ... ?

Detective Hange: Am I taking you to jail right this minute? No, I'm not taking you right this minute.

Mr. Brown: Am I under arrest?

Detective Hange: Right this minute, you're here on a physical detention. That's this court order right here, and that court order is to get your DNA, which we're going to do.

Mr. Brown: Okay. Can I do that and then go?

Detective Hange: Well, we'll get to that in a minute. Okay?

Mr. Brown: Because this is not-yeah. Can I do it and then go on?

Detective Hange: You don't want to talk to me?

Mr. Brown: Nah, not no more.

Detective Hange: Why?

Mr. Brown: Because I don't. Because you think you know everything.

Detective Hange: Well, you know I know. You know that.

Mr. Brown: Do I?

Detective Hange: Uh-huh. You know that I know. I'm not fishing here. Kynceaulas, I'm not fishing. I don't fish. I don't believe in fishing.

Mr. Brown: Can we take my DNA and so I[can] go?

Detective Hange: Okay. We'll go ahead and get your DNA.

Mr. Brown: Please.

Detective Hange: That's not a problem.

Mr. Brown: Thank you.

Detective Hange: But you're going to go? I don't think so. I think you're probably going to go to jail.

Mr. Brown: All right.

Detective Hange: All right?

Mr. Brown: Can I make my phone call?

Detective Hange: You'll get to make your phone call in due time. If you decide you want to talk to me, I'm still around. I'm not going anywhere yet.

The Court of Appeals found that "Here, when the detective explicitly asked whether Brown wished to continue talking, Brown answered, "Nah, not no more." Our courts have held equivalent statements to be a clear invocation of a suspect's Fifth Amendment rights.... The trial court therefore erred as a matter of law to the extent it found Brown did not invoke his right to remain silent."  
Click here for the complete decision.    

 

(Police statement that they were not going to pursue any charges against the suspect, after advising him of his Miranda rights, renders the confession involuntary)

In US v. Lall (2010) the United States Court of Appeals, Eleventh Circuit, found that the trial court was in error when they allowed the defendant's confession into evidence. The Appeals Court stated that, "In this case, Detective Gaudio gave Lall the Miranda warnings on the front lawn of the house. Nevertheless, Gaudio testified that before he entered the bedroom, he told Lall that he was not going to pursue any charges against him. Just as in Hart, this representation contradicted the Miranda warnings previously given. Indeed, this advice was far more misleading than that given in Hart. Our holding there compels the conclusion that, as a result of Gaudio's statements, Lall "did not truly understand the nature of his right against self-incrimination or the consequences that would result from waiving it."

Moreover, as in Hart, the totality of the circumstances in this case also bolster Lall's challenge to the propriety of his interrogation. The record shows that during the interview with police, Lall was kept alone in his bedroom, isolated from his family, and told that the purpose of any questioning was to protect Lall's family from future harm. These undisputed facts, taken together with Gaudio's representations, compel the conclusion that Lall did not make a "voluntary, knowing and intelligent waiver of his privilege against self-incrimination and his right to counsel."  
Click here for the complete decision.        

 

(Interrogator's repeated references that he could help the suspect rendered the confession involuntary)

In Ramirez v. State (2009) the District Court of Appeal of Florida, First District, the court found that the interrogator's repeated statements that he could help the suspect were improper. In part the District Court stated that "Here, the detective's constant offers of unspecified help were improper. At one point, the detective said to Appellant, "[I]f you want us to help you, you need to help us also." This statement arguably constitutes an offer of a "quid pro quo" bargain within the meaning of relevant case law. Because this statement is not the only one at issue, however, we decline to reach that conclusion definitively. Instead, we have determined that Appellant's statement was induced by improper police conduct based on the totality of the circumstances. In addition to making this questionable statement, the detective strongly implied that he had some specific benefit in mind that he could confer on Appellant. While offering this benefit that he would explain later, the detective made references to immigration issues, the opportunity to "get out of this," and arguably even the death penalty.

Additionally, when Appellant expressed the belief that the detective, as "the law," could do anything he wanted with Appellant, the detective did not clarify his position. The detective's failure to explain the limits of his authority is one major factor that sets this case apart from other cases upholding officers' suggestions that they could help defendants.....

Finally, Appellant's constant requests for the detective to give him more details of how he could help, even in one instance demanding such an explanation before giving an answer, show a preoccupation with the detective's promises and an invited expectation of receiving a benefit in exchange for a statement. Even though Appellant's preoccupation with the promises was readily apparent, the detective never stopped to explain that he had no control over what the prosecutor would choose to do with Appellant's statement.

Under the unique circumstances of this case, the trial court should have excluded the interview from evidence, at least after the point when the detective began to offer "help." Accordingly, we reverse and remand for a new trial to be conducted without the benefit of the involuntary interview statements."   
Click here for the complete decision.           

 

(Confession found involuntary when interrogator misrepresented the charge)

In McGhee v. State (2008) the Court of Appeals of Indiana held that the detective's erroneous statement during an interview with defendant that it was not against the law for an uncle to have consensual sex with a niece rendered involuntary defendant's subsequent confession that he had sex with his adult niece.

The court stated that: "McGhee argues that his confession was involuntary because Detective Cole obtained it by using "misrepresentations of fact and promises of leniency." Specifically, he notes that, during the videotaped interview, Detective Cole told McGhee that "it's embarrassing sometimes for an uncle to have sex with his niece, but it's not against the law if she wanted it." (State's Ex. 7). According to McGhee, his confession was obtained as a result of Detective Cole telling him that his conduct was not criminal, rendering the confession involuntary and inadmissible. We agree."

The court went on to say, "At the very least, Detective Cole's comments constituted an implied promise that McGhee would not be prosecuted if he admitted to having sex with K.O. and it turned out that the sex was consensual. Obviously, that was a promise that Detective Cole, like the officer in Ashby, could not keep. McGhee's confession was brought about by Detective Cole's misstatement of the law and was therefore involuntary and inadmissible."
Click here for the complete decision.           

 

(Employer found guilty by jury of false imprisonment)

In Robles, Plaintiff v. Autozone, Inc., (2008) Robles obtained a jury verdict in his favor for compensatory damages for false imprisonment. That jury found AutoZone's employee, Octavio Jara (Jara), acting within the course and scope of his employment, had falsely imprisoned Robles in the course of an internal company loss prevention investigation, and it awarded Robles $73,150. However, the trial court granted a nonsuit on the request for punitive damages, and Robles appealed.

Here are the salient facts:

"On July 6, 2000, Robles arrived for work and was told by the store manager ... that he should go to the back room because loss prevention officer Jara and the district manager ... wanted to talk to him. Robles did so and Jara told him there was an issue they needed to talk about, i.e., that the bank had called stating that they received an empty bag with only a deposit slip, and the slip had Robles's signature on it. Jara asked Robles several times if he knew what had happened, and Robles said no. At some point, [the district manager] left the room. Jara then told him, "we know who did it," and accused Robles of stealing the money. Robles denied this for the remaining part of the first portion of the loss prevention interview, which lasted two hours and seven minutes. Jara told Robles they would need a statement, and Robles filled out a form denying that he had taken the money."

After a 10-minute break in the interview, the following events occurred. Jara asked Robles if he knew that Jara was a police officer (a reserve officer for the City of Chula Vista) and Jara told him that he could get any information about anybody. Jara told Robles he had had a former employee, Julio Martinez, arrested by the police for theft. According to Robles's testimony at the first trial, Jara then said, "All I have to do is give a phone call, and the police will be at the front of the store to pick you up, and they'll take you to jail because what you've done is a felony, and you will serve time." Jara said that if Robles left, he would be arrested. Robles was afraid to leave.

According to Robles, Jara then told him that they could keep the matter within the company if Robles confessed and agreed to pay the money back in monthly installments while keeping his job: "Robles then sat down and wrote what Jara dictated to him in the next page of the statement, confessing to taking the money and signing a promissory note to pay back the money." The interview had lasted over three hours. "Robles was then suspended for a few days, fired, and his last paycheck withheld. He was unable to obtain unemployment insurance, due to being fired, but got a new and better job three or four weeks later. His lost wages amounted to $2,000 or less."

It was soon discovered that the money in the deposit bag, approximately $800 AutoZone cash, (which was the focus of the interrogation) had been found at the bank a few weeks later, without a deposit slip or account number, and the store manager and Jara were told at that time about telephone calls from the bank stating this, but no further action was taken by AutoZone about Robles with regard to this money.

In 2001, Robles filed a complaint for damages for false imprisonment and other theories against AutoZone and some of its employees. At the first jury trial, extensive evidence was presented about the incident and about AutoZone's procedures and policies for loss prevention, including training of loss prevention managers, such as Jara, in the use of the company interviewing manual, entitled "Investigative Interviewing, An Investigator's Guide To Interviewing" (the manual). The manual sets forth methods and interview techniques for loss prevention managers to use in interviewing employees accused of theft.
Click here for the complete opinion.

 

(See Asay v. Alberstons, Inc. for the proper room setting for an employee investigative interview.)           

 

(Important case re the use of deception during an interrogation)

 

In State v. Patton (2003) the court very carefully examines the use of trickery and deceit in the interrogation of suspects, and draws a very clear distinction between verbally misrepresenting evidence and creating a fictitious piece of evidence. In their opinion the court extensively reviews the history of the trickery and deceit issue and what numerous courts have had to say on the issue.   Click here for the complete case

 

References to suspect's family members

           

(Confession was coerced when investigators threatened to have Child Protective Services take defendant's child away)

 

In U.S. v Guzman (June 2014) the US District Court, W.D. Texas, ruled that "By implying that he and Hernandez had the ability to determine whether Child Protective Services would take away the custody of her child, Mora improperly coerced Defendant into confessing to importing, knowingly, twenty packages of marijuana. Threatening the custody of a defendant's child is coercive when used to illicit a confession of a defendant. See Lynumn v. Illinois, 372 U.S. 528, 534, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963) (holding that threatening to cut off state benefits and custody of her children was coercive). In the instant case, Defendant was separated from her minor child and, after being escorted into an interrogation room, was not informed of what steps would be taken with her child. After denying Hernandez and Mora's allegations throughout her interrogation, Defendant succumbed to their pressure only after Mora made threatening statements about his power to have Child Protective Services take custody of her child and Hernandez stated that he was leaving the room to determine what steps to take with the minor child. The statements made by Mora, together with Hernandez's actions and the separation of Defendant from her child, constitute coercion and rendered Defendant's confession thereafter involuntary. For these reasons, the Court finds that Defendant's confession was involuntary and that Defendant's oral and written statements, made after Mora and Hernandez's statements and actions concerning the custody of Defendant's child, be suppressed."

 

Click here for the complete decision.

 

(Threat to arrest defendant's mother and aunt rendered incriminating statement inadmissible)

In US v. Ortiz (2013) the US District Court, S.D. New York, ruled that the defendant's incriminating statements (while in his apartment where a gun was found) were coerced by threats that the defendant's mother and aunt would be arrested unless he acknowledged owning the gun. In their opinion the court stated that, "The Second Circuit has never squarely addressed whether a threat to arrest a suspect's family member renders that suspect's confession involuntary. Several other circuits, as well as several district courts in this circuit, have considered this question, however, and have all reached a similar conclusion: such a threat does not render a confession involuntary if the police have probable cause to arrest the family member and thus could lawfully carry out the threat.

Here, as a result of Martinez's threat, Defendant's confession fell on the wrong side of that line. Under the rule followed by courts in this circuit and others, Martinez's threat to arrest Montanez [mother] and Defendant's elderly aunt was improper unless the police had probable cause to arrest those individuals and thus could lawfully act on the threat. The government has already conceded that such probable cause was lacking as to Defendant's aunt, so the threat to arrest her clearly was improper....
Click here for the complete decision.

           

(Statement to suspect that he "should explain his mistake so that his daughter did not have to grow up without her dad" rendered the confession inadmissible)

In U.S. v. John (2012) the US District Court, D. Arizona, found that any incriminating statements that the defendant made after "the agent said Defendant should explain his mistake so that his daughter did not have to grow up without her dad are suppressed as involuntary." The court pointed out in their opinion similar statements that can tender the confession inadmissible, stating the following:

Haynes and Lynumn demonstrate that threats and promises relating to one's children carry special force. Interpreting these cases, the Ninth Circuit has previously concluded that "[t]he relationship between parent and child embodies a primordial and fundamental value of our society."..... When interrogators "deliberately prey upon the maternal [or paternal] instinct and inculcate fear in a [parent] that [he or] she will not see [his or] her child in order to elicit 'cooperation,' they exert the 'improper influence'...  
Click here for the complete decision.   

In State v. Brown (2008) The Kansas Supreme Court upheld the Court of Appeals decision to suppress the defendant's confession based on a violation of his constitutional privilege against self-incrimination. The Court of Appeals had found that "in the present case that "[w]hen a parent is essentially compelled to choose between confessing guilt in abusing his or her own child or losing his or her parental rights, the choice is between two fundamental rights under the Constitution.".... In other words, Brown would suffer a substantial penalty, the loss of the fundamental liberty interest in the care, custody, and control of his children if he elected not to incriminate himself, thereby violating the terms of the case plan."
Click here for the complete opinion.

 

           

Threats

 

(Threatening deportation was coercive)

In People v. Ramadon (2013) the Supreme Court of Colorado upheld the lower court's decision to suppress the defendant's statements that were made after the investigator threatened to deport him to Iraq if he did not tell the truth. In their opinion the Supreme Court stated that, "After viewing the videotape of the interrogation, we uphold the trial court's suppression order starting at minute fifty-four, instead of minute forty-two, when the interrogating officer told Ramadon that, if he did not tell the truth, he would likely be deported to Iraq. The record supports the trial court's conclusion that coercive police conduct during the custodial interrogation starting at the fifty-four minute mark played a significant role in inducing Ramadon' s inculpatory statements.   
Click here for the complete decision.

           

(The statement to the suspect that "It would be worse for you" if you did not talk to law enforcement was coercive)

In US v. Ramirez (2014) the US District Court, S.D. Florida found that the investigator's statement to the defendant that "It would be worse" for him if he did not speak to law enforcement was coercive.

"In the defendant's case, the court emphasized that the detective told the defendant that a disadvantage of having a lawyer present was that the lawyer would instruct the defendant not to answer questions, yet, the court explained, "[t]he reason for requiring a lawyer during custodial interrogation is to protect a suspect's privilege against self incrimination.".... . In addition, the court exhibited particular concern that the detective's statement that "honesty wouldn't hurt [the defendant]" "contradicted the Miranda warning that 'anything he said could be used against him in court.' [ ] The phrase 'honesty will not hurt you' is simply not compatible with the phrase 'anything you say can be used against you in court.' The former suggested to [the defendant] that an incriminating statement would not have detrimental consequences while the latter suggested (correctly) that an incriminating statement would be presented at his trial as evidence of his guilt."    
Click here for the complete decision.       

 

(Telling a suspect he could be charged with the more serious crime of lying to the police can nullify the confession)

In State v. Valero (2012) the Court of Appeals of Idaho confirmed the lower courts finding that the defendant's confession should be suppressed because "the deceptive tactics used by the detective, under the totality of the circumstances, rendered the confession involuntary." From the Appeals Court decision:

"Deceptive police practices do not necessarily create coercion which would render a suspect's subsequent confession involuntary and excludable..... Confessions derived during the course of interrogations have been upheld as voluntary, notwithstanding misrepresentations of facts by the police, such as telling a defendant that his fingerprints were found on physical evidence or at the scene.... Courts have uniformly accepted the police tactic of "telling a suspect they have found some incriminating evidence to elicit statements from a suspect on the view that an innocent person would not be induced to confess by such police deception.".... However, that acceptance wanes when the police misrepresent the law.

The detective misrepresented the law regarding the polygraph. Both before and after the polygraph the detective told Valero that the polygraph results would be admitted into court...

After stating that he could testify one hundred percent to Valero's guilt, the detective returned to his themes. The detective again minimized the seriousness of the accusations, stating that they were "not the end of the world." Then, the detective stated: "What is getting you to the end of the world and getting you in a bad spot now is the crime of lying to the police." At that point, Valero was faced with the possibility of being punished for two crimes: (1) one based on the girl's allegations; and (2) the other purported crime of lying to the police and, according to the detective, the more serious of the two crimes. Aside from the possibility of being punished for two crimes, Valero was placed in the position of being able to get out of the purportedly greater crime of lying by confessing to the purportedly lesser crime of inappropriate touching. The district court properly found that this false choice resulted in Valero's will being overborne.

While we do not hold that downplaying the seriousness of the accusations, by itself, resulted in Valero's will being overborne, it is a factor in the totality of the circumstances. Most importantly, in this case, the detective utilized downplaying of the seriousness of the victim's accusations to juxtapose that alleged crime against a threat of being charged with a more serious crime of lying to the police, which the officer could prove "one hundred percent" because the polygraph established that Valero was lying. Thus, Valero was faced with a Hobson's choice.

.
... Most critically, the detective's representation that Valero could be charged with a more serious crime of lying to police if he did not confess was inherently coercive. It is precisely the type of coercive tactic that could induce an innocent person to confess." 
Click here for the complete decision.

           

 (Court finds that interrogator conduct "overbore" defendant's will and rules that the confession is inadmissible)

In US v. Sanchez, (2009) the United States District Court, D. Nebraska, ruled that "Because the officers overbore Sanchez's will, Sanchez's confession should be found involuntary, and therefore, inadmissible."

The court describes the interrogator's conduct as follows:

"In determining whether the officers' conduct overbore Sanchez's will, the court will examine the officers' conduct and Ms. Huffman's conduct. As an initial matter, the officers' interrogation of Sanchez could have taken place at Sanchez's home, but the officers chose to conduct the interrogation at the police station. The facts of this case indicate the officers were angry and intimidating, they got close to Sanchez's face, and they were yelling at and badgering Sanchez. Officers told Sanchez he was "going to jail," and threatened him with charges of attempted murder and assault with a deadly weapon. Additionally, the officers' suggestion of possible retaliation by the victim's brother, who was known to be dangerous, may reasonably be considered a threat to a person in Sanchez's position. Such a threat of possible violent retaliation may be considered particularly coercive in light of the fact Officer Rave knew Sanchez had younger sisters. Finally, allowing Sanchez to see a photograph of the victim's injuries may have been a significant factor in overbearing the will of Sanchez, given his level of immaturity, low tolerance for resisting others' influence, and seeing his mother emotionally upset after viewing the graphic photograph of Rodriguez' injuries."   
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(Confession found inadmissible due to threats and promises from the investigators)

In State v. Pies, (2009) the Iowa Court of Appeals reversed the trial court finding that the defendant's confession was admissible and ruled that the confession was actually the result of the "not-so-subtle threat of a long burglary sentence and by the promise of a potential lesser penalty upon confession." In reviewing the matter the Court of Appeals stated the following:

"During questioning, an "officer can tell a suspect that it is better to tell the truth without crossing the line between admissible and inadmissible statements from the defendant.".... However, the line between admissibility and exclusion is crossed "if the officer also tells the suspect what advantage is to be gained or is likely from making a confession. Ordinarily the officer's statements then become promises or assurances, rendering the suspect's statements involuntary."

With these principles in mind, we detail portions of the interrogation:

Officer R: OK. Now, now we are going to shift gears. And I am going to tell you right now I have got enough right now to arrest you and take you to jail for burglary of that hardware store. I am offering you an option here to come clean and lessen the charge and work with us on this thing.... At this point, if you choose not to cooperate, we will take you, I will charge with the full boat of the crime and you will suffer the consequences.

Officer R: We are offering you a break here. To come clean.

Officer S: Let's take care of this problem and lessen the charge or take the full boat of this.

Officer R: Matt, you work with us-the county attorney-we will indicate ... in our report to him, that you ... were very cooperative. Do you want to fight this thing and work against us, then you are going to get charged and it is going to be very serious. Do you want me to read you what the penalty is on that?

Pies: Burglary?

Officer R: Long time jail. Probably up to ten years....

Pies: Oh jees....


Officer R: ... Why are you shaking your head?

Pies: I just feel like I am being backed against the wall here I, mean. Whether I did or didn't do it. You are telling me that you got my garbage.

Officer R: You know you did it. You are the only one that is going to try to help yourself. If you don't want to help yourself ... that's fine. You say the word, we will cease the conversation. I'll cuff you and take you over and book you in. If you want to help yourself you are going to talk to ... try to lower this penalty down a little bit. ...

Officer R: ... The thing is now we know you did it, you know you did it, help yourself on this thing without burying yourself. Because believe you me, a theft charge versus a burglary charge maybe, maybe looks just a little bit better than burglary.

Officer S: Do you have any of the cash left?

Pies: Are you going to put this deal in writing?

Officer R: What deal?

Pies: Understand that you are going to drop the charge.

Officer R: Matt.

Pies: If I pled guilty.

Officer R: Matt. I can not put anything in writing. It is up to the county attorney. But what I can do is indicate in the report that you ... helped with this thing. And that you were honest. If you don't want to be honest, then that is when it is going to get serious. Mike and I will do everything we can to put in a good word for you to lessen your penalty on this thing, but you got to help us out.

Officer S: We can make a recommendation that the charges be lessened. We told you already that we have enough to charge with your burglary. We are giving you the opportunity to help yourself.

Under the evidentiary test articulated in Mullin, utilized in Quintero, and reaffirmed in McCoy, we conclude the trial court erred in ruling the officers did not make improper promises. Pies's inculpatory statements were improperly induced by the not-so-subtle threat of a long burglary sentence and by the promise of a potential lesser penalty upon confession. Thus, the inculpatory statements were not voluntarily given and "should not have been admitted in evidence because of [the statements'] lack of reliability."  
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(Confession inadmissible due to promises and threats)

 

In People v. Fuentes (2006) the Court of Appeal, Second District, California found the defendant's confession to be inadmissible because improper promises and threats were made during the interview, both express and implied, which rendered the confession involuntary as the product of coercive police activity. From the Appeal Court's decision:

"In making this argument, defendant focuses on exhortations that even good people can do bad things while intoxicated and that defendant's not being in his "right state of mind" when the incident happened would "help" him. In addition, defendant was told that not confronting the situation would be "worse" for him, if defendant lied the case would go "very, very bad" for him, and if defendant kept quiet he could be charged "for something more serious, very ugly." Conversely, if a person tells the truth "it goes much better for them" and "the charges are lowered - a little." Finally, at least one and one-half hours after the interview started, defendant was given the alternative of spending either "the rest of [his] life" or "five or six years" in jail. He then confessed. In addressing the issue of voluntariness, the trial court concluded that under the totality of the circumstances the "latitude" taken by the police in questioning defendant was permissible. Based on our independent review of this legal issue, we reach the opposite conclusion (and therefore do not need to analyze the separate issue of defendant's Miranda waiver)."  Click here for the complete decision

 

Promises

 

(The importance of accurate translations by the interpreter - erroneously suggesting a lesser punishment if defendant confessed)

In State v. Fernandez-Torres (October 2014) the Court of Appeals of Kansas upheld the lower court's decision to suppress the incriminating statements made by the defendant. From the Court of Appeals' opinion:

"In September 2010, the Douglas County District Attorney charged Fernandez with aggravated indecent liberties with a child for the lewd touching of A.L.G., who was 7 years old at the time.

During the investigation of the offense, Fernandez accompanied Lawrence police officer Anthony Brixius to the law enforcement center to be questioned about his interaction with A.L.G.

At the suppression hearing, Brixius testified that he and Fernandez talked in English on the ride to the law enforcement center. Brixius speaks very little Spanish. Another police officer accompanied them. No one spoke in Spanish during the brief trip. Once at the law enforcement center, Fernandez was placed in an interrogation room. Brixius testified that he had concerns about Fernandez' fluency in English and sought out a Spanish-speaking translator to participate in the interrogation. Brixius pressed Oscar Marino, a bilingual probation officer, into service. Marino was born in Venezuela and grew up speaking Spanish; he came to the United States in his teens about 30 years ago and has become fluent in English. Marino has no training in real-time translation and has never been certified as a Spanish-English translator. At the suppression hearing, Marino testified that he has translated for police officers conducting interviews or interrogations "[a] handful" of times. The interrogation was videotaped.


"In weighing Fernandez' age, intellect, and background, the district court relied, in part, on the clinical assessment of Dr. Barnett. Dr. Barnett's expert opinion that Fernandez functioned intellectually in the "low average" range and likely had some form of learning disability was unrebutted. Dr. Barnett also testified Fernandez had difficulty readily understanding and responding to questions posed to him. Again, that clinical observation went unchallenged in the sense the State offered no countering expert. The intellectual limitations Dr. Barnett suggested at least square with Fernandez' abbreviated education and his partial literacy, especially in English. The district court found Fernandez' intellect played a part in rendering his statements involuntary.

The district court was particularly troubled by the last two enumerated factors: the fairness of the interrogation and Fernandez' fluency in English. We share that concern. In this case, the two factors are closely related, so we discuss them together.

Fluency in English typically comes into play when a suspect is literate in some other language but is interrogated in English... Illustrating the seamlessness of the generically labeled factors, fluency would also be implicated if a suspect knew only English but his or her mental incapacity substantially impaired his or her ability to communicate. That situation might also bear on mental condition and, possibly, intellect. This case presents a variant because Brixius sought out a translator, so the interrogation could be conducted in Spanish--Fernandez' primary language, although Fernandez understands some spoken English.

To be plain about it, Marino lacked the bilingual capacity and the training to function effectively as a translator in an extended interrogation about a sex crime against a child. The two experts agreed that Marino mistranslated both questions and answers and sometimes substantially paraphrased what was being said. The district court's expressed concern about whether Brixius and Fernandez were fully communicating in an effective way finds sufficient support in the record evidence.

The district court was particularly troubled by Marino's use of "negociar" in conveying Brixius' assertion that "we can deal with" the situation if Fernandez had touched A.L.G. inappropriately for just a second. Both experts considered the translation to be misleading and suggestive of an accommodation in which Brixius could handle or negotiate any offense if Fernandez admitted to briefly touching A.L.G.'s pubic area or vagina. As translated for Fernandez, the statement might be construed as a promise of lenient treatment or an outright deal, thereby affecting the truthfulness of any inculpatory admissions on the theory a suspect might falsely confess if he or she understood no charges or only minor charges would result.

The emphasis Marino imparted with his use of "negociar" may not have been what Brixius specifically wanted or intended. But the deviation was one of degree given Brixius' interrogation technique that combined false representations about supposedly incriminating evidence with suggestions that inaccurately tended to minimize the legal consequences of some unlawful behavior. The result of those techniques over the course of the interrogation combined with communications issues resulting from subpar translation and Fernandez' limited intellectual capacity caused the district court to find the resulting statements to be involuntary and, thus, constitutionally suspect. Fernandez' limited fluency in English ties into the fairness of the interrogation. So we turn to that factor.

In the face of Fernandez' denials that he inappropriately touched A.L.G. and his limited admission that he might have accidently brushed her pubic area in trying to get her back into bed, Brixius falsely stated skin cell evidence conclusively proved otherwise. There was no such evidence. Brixius, however, insisted the phantom scientific evidence meant Fernandez intentionally touched A.L.G.'s vagina. Brixius then repeatedly challenged Fernandez to offer some explanation for that conduct. Brixius suggested Fernandez wasn't a bad person and merely had a momentary lapse in judgment, perhaps because he was upset or had drunk too much or for some other reason, in contrast to being a degenerate regularly preying on children for sexual gratification. Brixius then told Fernandez if he had touched A.L.G. for a second, they could "deal with that"--the representation that Marino translated to "negociar." Later in the interrogation, Brixius again told Fernandez that it was "okay" because he didn't keep on touching A.L.G. Those representations falsely minimized the legal consequences of the action--brief, intentional physical contact with A.L.G.'s genitals actually would legally support a charge of aggravated indecent liberties with a child and a life sentence upon conviction.

Brixius' interrogation approach effectively informed Fernandez both that the police had irrefutable scientific evidence that he had touched A.L.G.'s vagina and that if he had done so only for a second his actions were "okay" and could be dealt with. The underlying message to Fernandez was this: We have overwhelming evidence against you, but if you tell us you did it just briefly, nothing much will happen to you. Brixius maneuvered Fernandez into a situation in which yielding to the suggestion would seem to carry a material benefit, though quite the reverse was true. An unwary or pliable subject--Fernandez, based on the district court's findings, fit that bill--could be induced to accede to the suggested version of events because it looked to be convenient, compliant, and advantageous. In that situation, a suspect may no longer be especially concerned about falsity of the statement. The interrogation strategy lures the subject in, snares him or her with representations about the strength of the evidence (that may or may not have any basis in fact), and then offers what appears to be a way out through admissions deliberately and incorrectly cast as significantly less legally and morally blameworthy than alternative explanations of the evidence.

In this case, looking at the whole of the circumstances, we conclude, as did the district court, that the inculpatory statements Fernandez made to Brixius were sufficiently tainted by the interrogation process and Fernandez' vulnerability to be something less than freely given."

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(Repeated implied promises of leniency nullify confession admissibility)

In State v. Talayumptewa (October 2014) the Court of Appeals of New Mexico upheld the lower court's decision to suppress the defendant's incriminating statements "on the basis that they were the product of coercive police conduct in the form or promises of leniency." From the Appeals court decision:

"Defendant responded to the officers' questions by saying that he could not remember what happened because he was intoxicated when the alleged incidents occurred. In response, the officers repeatedly told Defendant they would be meeting with the district attorney, that his claims not to remember were legally invalid, and that they had the ability to influence the district attorney with respect to the level of charges Defendant faced. Among other similar statements, Officer Pena told Defendant:

You're giving us nothing and that's what we're gonna [sic] go to the D.A.s with ... is that he gave us nothing ... he tried to use the old ... I don't remember because I was intoxicated defense.... And that's what we're gonna tell the D.A He came in and he gave us a convenient excuse.... Oh I was drunk.... Oh I don't remember.... It coulda [sic] happened, but I don't know if it did ... or anything like that.... So if you do remember what happened, just come clean with us.... We're trying to help you here.... Okay, but we can only help you so much.... Okay, I can't go to the D.A.s and be like hey let's ... you know let's cut this guy a break or ... or let's ... you know let's do this or ... let's uh ... you know let's think about it second [sic] if you won't tell us what happened cuz [sic] I can't go to the D.A. with that.... Okay, I can't.... The D.A. ain't gonna [sic] buy that either.

The officers also began to inform Defendant that he was facing multiple felony charges and that they could help him, but only if he remembered. Officer Pena told Defendant:

Okay.... I tried to help you here, I tried to give you a life line, I tried to help, I tried to give you that life preserver for you to help yourself, you don't wanna [sic] take it that's fine.... I'll ... we ... Investigator Ashley will go forward to the ... to the D.A.s with what we have based off what her ... what she's saying 'cuz [sic] you don't want to recant anything she's saying by just saying I was intoxicated, I don't remember ... that's fine, if that's ... that's the road you wanna [sic] go down ... that's fine, okay ... when the warrant comes and when we're putting you in jail ... for multiple felonies okay ... don't say oh wait a minute, I wanna [sic] talk now, because that's gonna [sic] be gone, once you get cuffed and put in jail.

In the specific exchange cited by the district court, the officers also discussed the range of prison terms for different degrees of felonies in response to Defendant's question about how much jail time he was facing. The following discussion then occurred:
Defendant: Is there a way I can like.... The only way I can help myself is to remember, right?

Officer Pena: That would be a big help.

Defendant: And then if I remember and that is what happened I'm still looking at those right?

Officer Pena: No[t] necessarily, uh ... it's still ... we still have to ... it's not like we sit here and we're like okay, we're gonna [sic] charge him for this okay ... we need to get everything done ... we still got some interviews to do and stuff like that, we're gonna [sic] do ... we're gonna [sic] interview everybody then we take our whole case and we give it to the D.A.s and the D.A.s is the one who say ... this and that ... okay?

Officer Ashley: [S]eriousness of the crime is way up here, we can help eventually bring it back down to maybe almost down to nothing ...

Officer Pena: That also depends on ... us being able to go to the D.A.s ... being able to say to the judge you know, he was very ... sorry it was an accident, it was [a] stupid mistake that he did while he was intoxicated ... he came in he was honest about it, he was up front about it ... he did remember finally, he came back in and said hey this is what I remembered.

These statements and the others like them constitute implied promises of leniency because their import was that Defendant would be arrested on serious felony charges if he continued to claim a lack of memory, but that if he made certain admissions, officers would intercede with the district attorney on his behalf, and that they had the ability to have charges reduced or not brought at all.

... The transcript contains numerous statements by the officers throughout the interview, the effect of which was to say that if Defendant gave a statement they would act on his behalf and had the ability to get the charges reduced. This was more than a mere offer to bring Defendant's cooperation to the attention of the district attorney, which courts have found acceptable.

We next turn to the overall question of voluntariness.....

Again, our review of the transcript of the interview supports the district court's ruling. As the district court found, there were a multitude of implied promises of leniency that started at the outset of the interview and continued throughout, constituting coercive police overreaching. We also find it significant that prior to making both the oral and written statements at issue, Defendant indicated that he was acting in an effort to avoid prison... Before writing the apology letter at the request of the officers, Defendant said: "I'll do anything to avoid jail cuz [sic] I don't wanna [sic] to miss out on my daughter[']s life." Also, while making statements purporting to remember the events of the evening, Defendant repeatedly said that his motivation was to avoid jail: "I'm trying to remember because I really don't want to go to jail or anything else.... I'm trying to remember because I wanna [sic] be able to just put this behind me and just move on." "I'm trying to remember but it's ... like I will do anything it takes to avoid jail time." "I'm just trying to remember so I don't ... I just ... you know, I don't wanna [sic] to go to jail."

The State points to the fact that Defendant came voluntarily to the police station, was informed that he was free to leave, and did not appear sleepy, nervous, or intoxicated to the officers. The State also notes that the officers reminded Defendant that they personally would not be making the charging decision. However, while these factors may weigh in favor of voluntariness to some extent, based on the totality of the circumstances, we agree with the district court that they are insufficient to outweigh the coercive effect of the numerous implied promises of leniency made to Defendant by the officers throughout the interview.

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(Promise of concurrent sentences)


In US v. Sharp (2013) the US District Court, W.D. Kentucky, ruled that the defendant's confession should be suppressed because it was the result of a promise that all sentences would run concurrently, and the statement if she did not confess the sentences would run consecutively.

Specifically the court stated, "Defendant contends that the police promised in both the interrogation concerning the Hayes Oil robbery and the Kangaroo Express robbery that she would be sentenced concurrently with the robbery of Fifth Third Bank. Based on the transcript of the interrogation on June 29, 2012, the Court finds substantial corroboration in the record that the police promised just prior to Ms. Sharp's confession in each instance that she would be sentenced concurrently with the Fifth Third robbery. As to the interrogation concerning Hayes Oil, Detective Book informed Defendant that it did not matter how many crimes that she confessed to at that point because the Government was "not going to run sentences after sentences after sentences" on her.... Detective Book reiterated this point before informing her that the police had a video of her committing the Hayes Oil robbery. The interrogation concerning Kangaroo Express followed almost the exact same pattern. In fact, Detective Herndon not only explained the difference between consecutive and concurrent sentencing but also specifically stated, "As a general rule, it doesn't matter how many crimes you've committed, they run the sentences concurrently." Id. at 34. Detective Herndon then continued to explain that if she did not confess at that time and the police found more evidence to charge her with the robbery of Kangaroo Express, then "by the time that catches up you may have to run your case consecutively as opposed to concurrently." Id. at 35. Again, the conversation turned to a brief discussion about the existence of a video, and then Ms. Sharp confessed to robbing the Kangaroo Express.  
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 (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:  

 "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.     

(Improper interrogator behavior – promise not to charge with murder)

In State v. Garcia (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.

"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. 

 "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 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. 

(Improper offer of leniency nullifies a confession)

In State v. Wiley (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.       

(Improper promise of leniency- treatment in lieu of jail)

In State v. Howard (2012) the Iowa Supreme Court found that "the detective's questioning crossed the line into an improper promise of leniency under our long-standing precedents, rendering Howard's subsequent confession inadmissible."

In their opinion the Iowa Supreme Court stated that, "It is true, as the court of appeals' majority noted, Detective Hull never overtly told Howard he would receive a lighter sentence if he confessed. He never said an inpatient treatment program would be the only consequence. He stated no quid pro quo out loud. But, his line of questioning was misleading by omission. As the court of appeals' well-reasoned dissent aptly observed, "Officer Hull's statements strategically planted in Howard's mind the idea that he would receive treatment, and nothing more, if he confessed."... Detective Hull's repeated references to getting help combined with his overt suggestions that after such treatment Howard could rejoin Jessica and A.E. conveyed the false impression that if Howard admitted to sexually abusing A.E. he merely would be sent to a treatment facility similar to that used to treat drug and alcohol addiction in lieu of further punishment. Significantly, Detective Hull did not counter this false impression with any disclaimer that he could make no promises or that charges would be up to the county attorney. We hold his interrogation crossed the line into an impermissible promise of leniency, rendering the confession that followed inadmissible."   Click here for the complete decision.           

(Impermissible promise of leniency)

In State v. Polk (2012) the Supreme Court of Iowa concluded that "the district court erred in denying Polk's motion to suppress his confession..... Polk's confession followed an impermissible promise of leniency..." From the Supreme Court's opinion:

"After three minutes of questioning, Polk said, "I ain't got nothing to say. Can I go back to my pod?" Monroe immediately baited Polk by saying he could go back if Polk "didn't want to know what happens from here on out." Polk took the bait, asking, "What happens?" and remained in the interview room. Monroe then began to insinuate that cooperation could affect punishment. Monroe told Polk that "what happens from here can be influenced by what we talk about." Monroe elaborated, "Let me just lay it out for you like this okay, it has been my experience working cases like this, that if somebody cooperates with us, on down the road the county attorney is more likely to work with them." For the next several minutes, Monroe reinforced the message that Polk would benefit by cooperating. For example, Monroe stated county attorneys "are much more likely to work with an individual that is cooperating with police than somebody who sits here and says I didn't do it."

..... After Monroe and Polk agreed to resume the interview, Monroe played on the fact Polk had children:

I'm telling you, you need to start thinking about what you are going to do for yourself because I know you got a couple of kids out there and I'd hate to see the kids miss their daddy for a long time because you didn't want to talk about what's going on.

Monroe continued: "Man if you don't want to do this for you, do this for your kids. They need their dad around. [35-second pause] Just don't forget you got kids that are depending on you. They need their pops around." The court of appeals observed, "It is clear from this statement that the officer meant to communicate that if Polk confessed, he would spend less time away from his children." We agree. The strategy worked--Polk promptly confessed to taking a firearm to the scene with the intent to shoot Henley and firing shots at Henley there.  

Monroe's interrogation strategy goes beyond the permissible tactics approved in Whitsel. Monroe did not simply offer to inform the county attorney of Polk's cooperation. Instead, he suggested the county attorney is more likely to work with him if he cooperates and implicitly threatened Polk that silence will keep him from his children for "a long time." Monroe's statements are similar to the officer's statement in Hodges that "there was a much better chance of ... receiving a lesser offense" if the defendant confessed.... In each case, the officer suggested the defendant's confessions would likely reduce the punishment.

We conclude Monroe crossed the line by combining statements that county attorneys "are much more likely to work with an individual that is cooperating" with suggestions Polk would not see his kids "for a long time" unless he confessed. Other courts have cried foul when interrogators imply a confession will reduce the suspect's time away from his or her children.           
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(Improper interrogator statements - promises and threats)

In Commonwealth v. Baye (2012) the Supreme Court of Massachusetts found that the defendant's incriminating statements should have been suppressed as a result of the statements made to him by the investigators. From their opinion:
"Here, before making any inculpatory statements, the defendant unambiguously expressed his desire to speak to a lawyer.... Understanding that the defendant would consult an attorney if he thought that the troopers would "accuse or charge [him]," the troopers told him that they would not do so. Knowing also that they had warned the defendant at the outset, consistent with Miranda, that anything he said to them could be used against him, the troopers undermined their prior admonition by agreeing that his statements would not be used as the basis of an accusation or a charge.

...... For this reason, assurances that a suspect's statements will not be used to prosecute him will often be "sufficiently coercive to render the suspect's subsequent admissions involuntary" even when the suspect shows no outward signs of fear, distress or mental incapacity.....

The troopers' reaction to the defendant's invocation of his Fifth Amendment rights is of particular concern here because the defendant's request occurred after he had been read his Miranda rights. We have "encouraged police to give Miranda warnings prior to the point at which an encounter becomes custodial," ...... and we do not decide in this case whether the provision of such warnings binds interrogators to honor scrupulously a suspect's invocation of his or her Miranda rights outside the context of a custodial interrogation. However, where the police provide precustodial warnings but then ignore the defendant's attempts to avail himself of those rights, the "coercive effect of continued interrogation [is] greatly increased because the suspect [could] believe that the police 'promises' to provide the suspect's constitutional rights were untrustworthy, and that the police would continue to" ignore subsequent invocations, rendering such invocations futile."    
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(The difference between "limited assurances" and promises of leniency)

In US v. Pacheco (2011) the US District Court, D. Utah, drew a distinction between "limited assurances" and promises of leniency.  In their opinion they stated that "Under Supreme Court and Tenth Circuit precedent, a promise of leniency is relevant to determining whether a confession was involuntary...." The Supreme Court has recognized that when individuals are "in custody, alone and unrepresented by counsel," they are "sensitive to inducement" by promises of leniency.  Not all promises, however, are coercive. Courts have held that an officer may make a promise to talk with a prosecutor and recommend leniency.  An officer may even speculate that such "cooperation will have a positive effect." Because such statements are mere "limited assurances," they are permissible.  Statements, however, that go beyond limited assurances can "critically impair a defendant's capacity for self-determination."

In this case, the investigator "made repeated improper use of the word "I" during the interrogation. He said I can charge you with one count or I can charge you with ten; I am the first point in judging in the federal system; I am going to indict you; I already have a U.S. attorney on board; and I can charge the January 17th robbery under the Hobbs Act. Besides these statements, Detective Wendelboth conveyed to Pacheco that he was leaving it up to him to decide whether to confess so he could avoid a life sentence and get out to see his children grow up. The import of these statements is that Pacheco would have reasonably understood that Detective Wendelboth had the authority to make a deal, that he would decide what counts to charge based on the level of Pacheco's cooperation, and that if Pacheco confessed he would not receive a life sentence.

Although Detective Wendelboth did briefly mention that he would go to the AUSA, his comment was insufficient to clarify that he had no authority to make a deal with Pacheco and that he only would be making a recommendation to the AUSA. The court therefore concludes Detective Wendelboth's statements were not mere "limited assurances," but promises of leniency that could result in a coerced confession."   Click here for the complete decision.

 (Confession made to company investigators ruled inadmissible because it was the result of a promise not to prosecute)

In State v. Powell, (2011) the Court of Appeals of Oregon upheld a lower court's decision the suppress a confession from an employee because the "express and implied promises of immunity from criminal prosecution given to the defendant by the Fed Ex investigators render[ ] his statements to them involuntar[y]."  In this case the employee was told the following by the company investigators:

"It's apparent that you took this stuff, so now we're at a crossroads, okay? * * * We're at a point where either we handle it in-house here, in FedEx, or we can turn everything we have over to the [police department], and then they handle it from there. Now if you choose that route, there's nothing you can do. They'll be going to get search warrants for your house, for your mother's house. They'll go through all of your stuff. It's just gonna be a big mess, okay? * * *

"At this point, our base concern here at FedEx is we want to know, we need to make a customer happy. And if we can make the customer happy, then they don't come back on [defendant], okay? And I don't think you're a bad guy, okay? If I had thought you were a bad guy I would've taken all this stuff and we would've given it to the [police department] and said, 'You gotta jack him up, we're done with him,' okay? I don't feel that way. You've got a lot of stuff going on in your life right now, and I know it. People do boneheaded things, okay? But where we go now is what's going to decide your future. * * * Nobody but who's in this room needs to know."  Click here for the complete decision.     

(Police cannot promise drug treatment in lieu of incarceration)

In State v. Jenkins (2011) the Court of Appeals of Ohio, Second District, upheld the trial court's decision to suppress the defendant's incriminating statements because they were the result of a promise of treatment in lieu of prison. "Jenkins described his initial interview with Yount as follows: "He told me that he had the authority to get me treatment as long as I helped him. He was a man of his word. He said if I was a man of my word, he would be a man of his word. He would get me treatment as long as I was truthful and honest with him. That was the only way it was going to happen." Jenkins stated that Yount told him that he had the authority, independent of the prosecutor, to arrange treatment in lieu of conviction.

" 'The line to be drawn between permissible police conduct and conduct deemed to induce or tend to induce an involuntary statement does not depend upon the bare language of inducement but rather upon the nature of the benefit to be derived by a defendant if he speaks the truth, as represented by the police. * * *

" 'When the benefit pointed out by the police to a suspect is merely that which flows naturally from a truthful and honest course of conduct, we can perceive nothing improper in such police activity. On the other hand, if in addition to the foregoing benefit, or in the place thereof, the defendant is given to understand that he night reasonably expect benefits in the nature of more lenient treatment at the hands of the police, prosecution or in court in consideration of making a statement, even a truthful one, such motivation is deemed to render the statement involuntary and inadmissible. The offer or promise of such benefit need not be expressed, but may be implied from equivocal language nor otherwise made clear.' "

On February 10th, Jenkins made Yount aware of his drug addiction, and Yount discussed intervention in lieu of conviction with Jenkins, and he further indicated that the police department has "influence on things that happen throughout the trial." On February 11th, Yount testified that he recommended treatment for Jenkins to the judge. Jenkins was fearful about going into withdrawal. While Yount did not guarantee treatment in exchange for Jenkins' confession, he implied by his conduct and words that such a benefit was a possibility. In considering the nature of the benefit to be derived from Jenkins' confession, namely treatment for a severe drug addiction, we conclude, as did the trial court, that the benefit did not naturally flow from a truthful course of conduct on the part of Yount. Intervention in lieu of conviction was not available as a matter of law, and Yount's false representations undermined Jenkins' capacity for self-determination and impaired his decision to provide incriminating statements. Having considered the totality of the circumstances, the State's sole assignment of error is overruled."  Click here for the complete decision.

(Court finds confession inadmissible due to interrogator threats and promises)

In U.S. v. Ellington (2011) the U.S. District Court, S.D. Texas, Houston Division, stating that "In this case, the coercive conduct of the law enforcement officials that participated in planning and executing Ellington's interrogation is the critical factor that leads the Court to conclude that Ellington's statement was involuntary. Indeed, the Court is deeply troubled by the course of official conduct that ultimately caused Ellington to waive his rights and make an incriminating statement. The agents employed threats of significantly greater punishment for Ellington and his wife and made illusory promises of leniency if Ellington "cooperated." They then made Ellington's sole opportunity to cooperate contingent upon his willingness to waive his right to counsel and incriminate himself. When considered together, as they were intended to be, these pressures were plainly coercive and, ultimately, caused Ellington to make a statement that was not the product of his free and rational choice.

In sum, both the agents and AUSA Rodriguez told Ellington that he was being presented with his sole opportunity to cooperate. If he chose not to give a statement during the interrogation, the charges against him and his wife would be "stacked." Indeed, the agents and AUSA Rodriguez threatened Ellington with the prospect of extreme consequences if he refused to provide an incriminating statement, while at the same time made an illusory promise that, if he gave an incriminating statement and was able to provide substantial assistance, he could avoid the maximum consequences, avoid going to jail that day, continue receiving a pay check for some period of time, and keep his wife out of prison. "In many ways, both types of statements are simply different sides of the same coin: 'waive your rights and receive more favorable treatment' versus 'exercise your rights and receive less favorable treatment.' " ..... Viewed either way, the agents formulated an extraordinarily frightening threat coupled with an attractive inducement, making it "apparent that the prosecutor and police went to extraordinary lengths to extract from [Ellington] a confession by psychological means...... Click here for the complete decision.  

(Court rejects confession obtained after suspect was promised by the interrogator that he would testify for the suspect)

In State v. Bordeaux (2010) the North Carolina Court of Appeals upheld the lower court's opinion to rule the defendant's confession inadmissible because it was the result of a promise of leniency.

"The trial court found that during the interview, officers indicated to Defendant that they would testify on his behalf and explain that he only made a mistake. Thereafter, Detective Odham explained that "the Judge will look at that and say 'Well damn, you know, we don't want to ruin this kid's life,' or whatever the Judge will say. I don't know what the Judge will say ...." While Detective Odham attempted to retreat from his initial statement by light of the proposed testimony, other statements made throughout the course of the interview helped to arouse in Defendant the hope of a more lenient sentence. Several statements made by Detective Odham suggested that Defendant might still have the opportunity to attend community college and that his future was dependant upon cooperating during the interview. The trial court's findings indicate that the detectives promised that they would speak on Defendant's behalf and a benefit would result. When viewed in their totality, the Detectives' statements during the course of the interview aroused in Defendant "an 'emotion of hope' " of lighter, more lenient sentence."

The Court of Appeals also pointed out that "In this case, the detectives' suggestion that Defendant was a suspect in a murder investigation accompanied by promises of relief made Defendant's statement involuntary. The officers were fully aware that Defendant did not participate in the murder. The intended effect of the detectives' query about the murder was to cause Defendant to be "worried and off-balance." When coupled with the promises of relief, the deception used by detectives rendered Defendant's confession inadmissible at trial."  
Click here for the complete decision.     

(Promise of reduction in number of counts coercive)


In US v. Beaver (2008) "... the main thrust of Defendant's argument is that he was induced to confess by the interrogating agents' promises of leniency." The court concluded that "The Defendant clearly formulated the reasonable belief that the agents were promising him a reduction in the number of counts charged and a lighter sentence if he confessed to fondling the girls. Of particular importance is the Defendant's insistence that Agent Frank's shake his hand. It is clear that Defendant thought a deal had been struck and wanted this handshake to memorialize the deal, a deal that he described as being the agents' agreement to drop all but two counts contained within the indictment. As a result of these circumstances, the Court is convinced the Defendant believed he had been promised lenience."
Click here for the complete opinion.         

(Interrogator's promise not to charge defendant with a "fictional" murder if he told the truth resulted in a coerced confession)

In Chambers v. State (2007) the Fourth District Court of Appeal Florida found that the trial judge erred in not suppressing the defendant's confession. The Court of Appeal stated:

Chambers challenges law enforcement's suggestion that he could face murder charges unless he told the truth as an impermissible promise not to prosecute in exchange for the truth. Two decisions cited by Chambers and rendered by this Court support his contention.

First, in Edwards v. State, 793 So.2d 1044 (Fla. 4th DCA 2001), this Court held a confession involuntary where it ensued from an investigator's threat to hit a suspect with every charge he could if the suspect did not tell the truth, and wrote:

Certainly, a threat to charge a suspect with more, and more serious, crimes unless he or she confesses is coercive. Further, it is essentially a promise not to prosecute to the fullest extent allowed by law if that person confesses. Hence, the investigators' threats amounted to an exertion of improper and undue influence, rendering the affected portion of Edwards' statement involuntary.

Likewise, in Samuel v. State, 898 So.2d 233 (Fla. 4th DCA 2005), this court held a confession involuntary where it ensued from an officer's threat to charge the suspect with fifteen robberies, where there was evidence of at most nine and probable cause for only one, if he did not tell the truth, writing that "Fowler's promise not to prosecute the other fictional crimes" was coercive and rendered the confession involuntary.

Based on Edwards and Samuel, we reach the inescapable conclusion that Chambers' confession which almost immediately ensued from what was essentially a promise not to charge him with a "fictional" murder if he told the truth rendered his recorded statement and confession unconstitutional as coerced and involuntary.  
Click here for the complete decision.

Court decisions re appropriate/permissible investigator statements

 

In general


(Use of a psychologically-oriented techniques during questioning is not inherently coercive; request to have his mother in the room was not an assertion of his right to remain silent)

In State v Faucette (January 2015) the Superior Court of New Jersey, Appellate Division, upheld the lower court's decision that incriminating statements made by the defendant were voluntarily made. From the Superior Court's decision:

"Defendant argues his confession was "the product of intimidation, coercion and deception," as police capitalized on his fear of Clemons' retaliation against him or his mother, essentially forcing him to talk. He cites as a threat, Detective Craig's comment he would "drop [him] downstairs," meaning take him to the county jail where Clemons was being detained, "if he didn't start talking."

Having considered the events depicted on the DVD, we reject defendant's argument as lacking merit. Use of psychological tactics is not prohibited... "Unlike the use of physical coercion, ... use of a psychologically-oriented technique during questioning is not inherently coercive." Such ploys may "play a part in the suspect's decision to confess, but so long as that decision is a product of the suspect's own balancing of competing considerations, the confession is voluntary."

Here, no physical force or threats of same were made. The interview was not lengthy, lasting a little more than an hour. During the interrogation, there were no signs defendant was fatigued, confused or under the influence of intoxicating substances. Detective Craig's comments expressed frustration with defendant's changing story, but the remark "[w]e're not offering to do anything for you other than drop you downstairs in the middle of the population and you fend for yourself," merely stated police responsibility to effectuate the arrest warrant and place defendant in jail.

As to the police discussion of Clemons' past violence and affiliation with a gang, these facts were known to defendant, who admitted he had known Clemons for a long time. Police acknowledgement and discussion of these facts was not the " 'very substantial' psychological pressure[ ]" necessary for finding a defendant's will was overborne. Accordingly, we reject the notion Detective Craig's comments acted to "strip[ ] defendant of his capacity for self-determination and actually induce the incriminating statement...."

Defendant suggests requests to have his mother present in the room constituted equivocal assertions of his right to remain silent. We disagree.

Before Detective Craig informed him of the charges, defendant, who was age twenty-two, asked "[w]here's my mom," as he thought "my mom[ ] is gonna be here." Once informed of his arrest, defendant exclaimed, "I thought you were going to be bringing my mom in here." Subsequent to revealing his role in the robbery, defendant requested "[c]an my mom be in here while ... we do this, please?" At that point, Detective Craig replied "she's a little tied up right now," but later he would "take a break at a certain point [and he would] go find out where she's at [sic]...." Toward the end of the interview, defendant again asked for his mother.

The Court recently considered the analytical implications of requests by an adult to speak with someone other than an attorney, concluding that such requests do not imply or suggest that the individual desires to remain silent.

The Court explained, "[a]lthough the mere request by an adult to speak with a parent does not equate to an invocation of the right to remain silent, it does necessitate a review of the context in which the request was made." Often "it [is] not the request to speak with the parent, but that request in the context of other facts that [gives] rise to the conclusion that the right to silence had been invoked."
Here, defendant made an inquiry of his mother's whereabouts and repeated his belief she was to be present. Detective Craig told him he would check during a break and later advised defendant could see his mother before he was placed in jail. Nothing about defendant's requests reflect continuation of the conversation was contingent on his mother's presence. Rather, defendant's statements suggest a desire for support and cannot be construed as an assertion of his right to remain silent.

Click here for the complete decision.

 

(Investigator's statement that it was time for the defendant to "come to Jesus" was not a coercive statement)

In Singleton v State (November 2015) the Court of Appeals of Mississippi found that the investigators comment to the defendant that it was time to "come to Jesus" did not constitute a coercive statement. From the court decision:

"Singleton asserts that his confession resulted from pressure and intimidation from the investigators. Singleton testified that Investigators Ellis and Huddleston "play[ed] good cop and bad cop," which led to a feeling of intimidation. Singleton primarily contends, however, Investigator Ellis coerced Singleton into confessing when he made the remark that it was time for Singleton to "come to Jesus."

Singleton, a preacher for approximately fifty-four years, argues that Investigator Ellis took advantage of his religious beliefs by using Jesus to elicit a confession. The United States Supreme Court has held "coercive police activity is a necessary predicate to the finding that a confession is not 'voluntary' within the meaning of the Due Process Clause of the Fourteenth Amendment."

The Connelly Court further held "the Fifth Amendment privilege [against self-incrimination] is not concerned 'with moral and psychological pressures to confess emanating from sources other than official coercion.' In fact, the Supreme Court has found that the use of religious references does not automatically render a confession involuntary.

In this instance, Investigator Ellis told Singleton that it was "time to come to Jesus" after the investigators played the tape-recorded conversation between Singleton and Daniel, and Singleton continued to deny his involvement with Daniel. Investigator Ellis testified his use of the phrase was merely to get Singleton to tell the truth in light of the incriminating evidence.

The Mississippi Supreme Court held that "[a] mere exhortation to tell the truth is not an improper inducement that will result in an inadmissible confession." While Singleton stated he found the remark offensive, Investigator Ellis testified he did not use any threatening or intimidating language or tone that would constitute coercion. This inducement to tell the truth without more does not rise to the level of coercion. Thus, the religious reference did not render Singleton's statement involuntary."

Click here for the complete decision.


(Social Security Fraud – proper procedures)

In US v. Harper (September 2014) the US District Court, W.D. Kentucky, upheld the defendant's incriminating statements that she had given to agents from the Social Security Administration Office of Inspector General office. From their opinion the court stated the following:
Defendant, Janet Harper, is charged in Count 1 of the Indictment with knowingly receiving and retaining stolen property of the Social Security Administration consisting of $82,468.02 in supplemental security income benefits. In Count 2 of the Indictment, Defendant is charged with knowingly executing a scheme and artifice to defraud the Medicaid Program by falsely representing her living situation and marital status. On July 8, 2014, Defendant filed a motion to suppress "any and all statements, admissions and confessions allegedly given by the defendant, whether oral, written or otherwise recorded, which the government proposes to use as evidence against her" based on allegations that that they were involuntary and taken against Defendant's Fifth and Sixth Amendment rights.

At the evidentiary hearing, Agent Baker, Agent Krieger, and Defendant testified that after the Defendant entered the interview room, the Agent informed her of her rights. Specifically, Agents Baker and Krieger testified that Agent Baker read the non-custodial rights form to the defendant that provided in part as follows: "You have the right to remain silent and make no statement at all. Any statement you do make may be used as evidence against you in criminal proceedings. You are not in custody. You are free to leave and terminate this interview at any time." (United States' Exhibit 2.) Defendant signed the signature line on the form and printed her name below the signature line. Defendant acknowledged signing the form and being informed of her rights. In as much as Defendant argued in her initial motion to suppress that her statements should be suppressed as a result of a violation of her rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1965), the motion is denied.

First, the Court finds that Agent Baker and Agent Krieger did not trick Defendant into signing the statement admitting that she made false statements regarding her living arrangement in her applications for supplemental social security benefits. After considering the testimony of the Agents, Janet Harper, and Ronald Harper, the Court credits the testimony of the Agents regarding the events of the interview. The Court finds that during the interview, Agent Baker informed Defendant he had reason to believe that statements given by her to the Social Security Administration over an 11 year period were false. Defendant admitted that those statements were false, and she voluntarily initialed the statements to acknowledge their falsity. At the request of the Defendant, Agent Baker wrote out the Defendant's statement based on things she communicated during the interview, read the entire statement aloud to the Defendant, and gave the Defendant the opportunity to correct the statement. The Defendant indicated the content of the statement was correct and signed it.

Second, the Court finds that the Defendant's mental condition, medication, lack of medication, or feelings of sadness and nervousness did not render the statement made by Defendant nor the signing of the statement in question involuntary. The Agents testified that Defendant's demeanor during the interview was calm and even-keel; she did not appear to be upset. She talked in a normal tone. Agent Baker testified that she did not appear to have any physical impairment, did not appear to be under the influence of any drugs or alcohol, and did not have any difficulty answering the questions. During the interview, Agent Baker questioned Defendant if she was under the influence of any drugs or alcohol, and she indicated that she was not. Further, the Agents testified that Defendant's behavior did not indicate that she had anything wrong with her mental state that would impair her ability to participate in the interview. The Court credits the Agents' testimony on this issue finding that Defendant was calm, alert, and responsive at the time of the interview."

Click here for the complete decision.

 

(Bible in the interrogation room is not coercive)

 

In Mauldin v. Cain (August 2014) the US District Court, E.D. Louisiana upheld the lower court's decision not to suppress the defendant's incriminating statements and to reject the suggestion that the presence of a Bible in the interrogation room was coercive.  In their opinion the court stated that, "Contrary to Mauldin's argument, defense counsel raised the issue of the Bible in the chair next to Mauldin during the police interview. The record reflects that both the prosecutor and defense counsel questioned the officers about the Bible, described as a "little Gideon Bible" that was on the chair next to Mauldin and which could be seen in parts of the video.   Sergeant Troy Tervalon testified that he placed the "small version" of the Bible in the chair before the interrogation started.  He stated that he put it there so that Mauldin's "conscience would kick in, to tell the truth." He indicated that he said nothing to Mauldin about the Bible and placed it there before Mauldin was brought into the room. It was just a technique he used.

 

The record demonstrates that Mauldin's counsel did take issue with the presence of the Bible during the interview and included the argument to bolster the alleged coercive circumstances forming the basis of the motion to suppress the confession. Mauldin's suggestion otherwise is without factual support.

In addition, there is no law to suggest that the mere presence of the Bible would have been sufficient for counsel to establish coercion of the confession. See Williams v. Norris, 576 F.3d 850, 868–69 (8th Cir.2009) (references from the Bible and appeals to God are not alone coercive); Williams v. Jacquez, No. 05–0058, 2011 WL 703616, at *24 n. 19 (E.D.Cal. Feb. 19, 2011) (officers indicating during interview that the Bible instructs that a person tell the truth), order adopting aff'd, 472 F. App'x 851 (9th Cir .), cert. denied, ––– U.S. –––, 132 S.Ct. 378 (2012). Thus, counsel was under no professional obligation to re-urge that point by separate motion to suppress when the argument was already rejected by the Trial Court. See Smith v. Puckett, 907 F.2d 581, 585 n. 6 (5th Cir.1990) ("Counsel is not deficient for, and prejudice does not issue from, failure to raise a legally meritless claim."); see also, Koch v. Puckett, 907 F.2d 524, 530 (5th Cir .1990) (concluding that "counsel is not required to make futile motions or objections."); see also, Wood v. Quarterman, 503 F.3d 408, 413 (5th Cir.2007) (" '[f]ailure to raise meritless objections is not ineffective lawyering; it is the very opposite.' ") (quoting Clark v. Collins, 19 F.3d 959, 966 (5th Cir.1994)).

 

Relief on this claim was properly denied by the state courts and the denial was not contrary to Strickland. Mauldin is not entitled to relief on this point."

 

Click here for the complete decision.

 

(Investigators operated at the "outer bounds of permissible conduct")

 

In U.S. v Thomas (May 2014) the US District Court, N.D. Illinois, upheld the admissibility of the defendant's confession, but cautioned the investigators that they were operating at the outer bounds of permissible conduct.  From the court's opinion:

 

"Defendant argues that the use of his statement at trial would violate his Fifth Amendment right against self-incrimination because he was impaired by his pain medication and therefore lacked the capacity to make a voluntary confession.

 

Defendant argues that the agents' coercion began with their failure to identify themselves and the purpose of their visit. He also claims that the agents coerced him because they misrepresented the intended length of the interview and interviewed him knowing that he was impaired by his medication. The Court, aided by the factors listed above, comes to a different conclusion. Defendant is an adult and possesses a sufficient educational and intelligence level to run his own business. The interview was less than two hours in length. Defendant testified that Special Agent Dahlgren grew aggravated during the interview when Defendant contradicted him, but Defendant remained undeterred in clarifying his statements to the agents. In addition, Defendant alleges no use of physical punishment. As discussed above, Defendant was not admonished of his constitutional rights because he was not in custody. Using the multi-factor test laid out by the Seventh Circuit, the Court cannot find any evidence of coercion by the agents.

 

Although Defendant has not proven any constitutional violation was committed by the agents, the Court is troubled by the agents' investigative tactics. Special Agent Colin testified that she was aware that Defendant was represented by Sam Adam, Jr. Even if Defendant stated during the interview that Adam was not representing Defendant "at that time," Special Agent Colin read the correspondence sent by Adam to the CTA declaring that he was representing Defendant in any investigation pertaining to Thomas Painting and Decorating. The agents took advantage of Defendant's lack of legal prowess in order to run an end-run around his Fifth Amendment rights. While Defendant's assertions regarding his mental state are not compelling enough to invalidate the voluntariness of his confession, the Court notes that this entire dilemma could have been avoided if the agents had simply contacted Defendant's attorney prior to conducting the interview. Unfortunately, the Court cannot locate, and Defendant has not provided, any case law to suggest that the agents' tactics warrant a suppression of his statement. Indeed, a government agent's deceitful conduct does not render a confession inadmissible absent threats or promises by the agent.... The Court recognizes that government agents must zealously pursue alleged criminal wrongdoing. Nonetheless, the Court warns HUD and DOL that, in this instance, their agents operated at the outer bounds of permissible conduct under the Fifth Amendment."

 

Click here for the complete decision. 

 

 (Statement the defendant would be taken home if he was honest did not require exclusion of the statement)

In Sparrow v. State (2013) the Court of Appeals of Georgia, found that telling the suspect that he would be taken home after the questioning if he was honest with the investigators did not make the confession involuntary. The court stated the following:

"On appeal, Sparrow argues that the trial court erred by admitting his confession because it was not voluntary. He points to Mann's promises of secrecy and that he would take Sparrow home after the interview if Sparrow was honest with him. But based on our review of the videotape, it is clear that Mann did not promise anything with respect to prosecution for the burglary. Mann had told Sparrow that he still needed to speak with the victim of the crime to determine what would happen next, thus, Mann's promise was merely that he would take him home after questioning and not that Sparrow would be free from future charges. A promise to take the suspect home after questioning--not relating to ultimate charges or sentences for the suspected crime--is merely a collateral benefit that does not require automatic exclusion of the confession... Further, ... a promise of secrecy shall not require exclusion of the statement, so Mann's promise not to tell Sparrow's sister or his parole officer about the drug use does not render Sparrow's statement involuntary. Based on the totality of the circumstances, the record supports the trial court's determination that Sparrow's statements were not subject to exclusion...
Click here for the complete decision.

 

           

 

(Detective's statements during the interrogation telling defendant that he thought she was lying were admissible)

In Johnson v. Commonwealth (2013) the Supreme Court of Kentucky upheld the lower court's decision to allow the jury to hear audio tapes of the defendant's interrogation in which they heard the investigator say he thought the defendant was lying.

From the court's opinion: "The recordings contained instances of a detective telling the Appellant that he thought she was lying... Appellant initially objects to the playing of the tapes because they contain repeated instances where the interrogating detective expressed his opinions about whether the Appellant was telling the truth about the circumstances of the victim's death. Specifically, he stated on tape that Appellant "put [the bruise] there" and "punched him in the back." As the interview progressed, Detective Allen appeared to express more frustration, yelling "I'm so sick ... of your bullcrap, bullcrap, bullcrap! You keep sitting there saying [that the police are] lying! When twelve jurors are sitting there, we'll see who's lying!"


.....Appellant pleaded with Detective Allen that she was telling the truth, to which Detective Allen responded "I'm not buying into that. I'm wasting my time ... two days interviewing you ... we've got enough for an arrest ... tell [your story] to twelve jurors.".

The issue with playing these audiotaped interrogations in their entirety, specifically the portions of them that contain statements made by a law enforcement official that suggest, if not explicitly state, that the officer believes that the defendant is lying, is very similar to a witness characterizing the testimony of another witness as "lying." It has long been the law of this Commonwealth that a "witness's opinion about the truth of the testimony of another witness is not permitted.... That determination is within the exclusive province of the jury...... Technically speaking, however, when an officer makes statements during an interview accusing a person of lying, neither the officer nor the person is a witness at that time. The question, then, is whether the principle in Moss extends outside the courtroom so as to make it unduly prejudicial to allow a jury to hear the portions of an interrogation of a criminal defendant wherein an officer accuses the defendant of lying.

This Court addressed this precise issue in Lanham v. Commonwealth, 171 S.W.3d 14 (Ky.2005), and held that such statements are admissible. In so holding, the Court decided that Moss did not extend to recordings of police interrogations and stated:

We agree that such recorded statements by the police during an interrogation are a legitimate, even ordinary, interrogation technique, especially when a suspect's story shifts and changes. We also agree that retaining such comments in the version of the interrogation recording played for the jury is necessary to provide a context for the answers given by the suspect.'  
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("the very outer limit as to what tactics law enforcement may employ when performing a custodial interrogation")

In Martin v. State (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 further... their 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.     

 

(Claim that the implication of a lighter sentence resulted in a coerced confession rejected)

In Van Jackson v. State (2012) the decision by the Texas Court of Appeals, Austin, points out the value of investigators video recording the interrogation.   In their decision the court stated that , "Jackson argues that the video proves that he was "fatigued, hungry, injured[,] and left isolated in a small room for some time" and that the detective induced his confession by suggesting that he might receive a lighter sentence if he was honest and apologized for robbing Rivas. However, the detective never made a positive promise to Jackson that he would receive a benefit by confessing. Rather, he told Jackson that juries want to hear defendants say they are sorry and that prosecutors want to know if defendants are cooperative, truthful, and apologetic. These general statements were not enough to render Jackson's statements involuntary.....

...... Although Jackson was arguably tired during the interrogation, the video shows that he was alert, coherent, and could answer the detective's questions. The detective's questioning lasted less than twenty minutes, and at no time was the detective threatening or overbearing.... Therefore, we conclude that Jackson's confession was voluntary, and the trial court did not err in denying Jackson's motion to suppress the confession. Jackson's second point of error is overruled.  
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(Statements to the defendant that his denials were "bullshit" and that he was "kind of screwed" and that he was "fucked" were not threats)

In Moore v. Scribner (2011) U.S. District Court, C.D. California rejected the defendant's claim that his confession was coerced by threats and lying about the evidence. From the court's opinion:

"Petitioner cites the following "threats" by Carr. During the first interview, Carr told Petitioner that his denials were "bullshit." ... Carr told Petitioner: "You're in deep trouble if you continue to feed me a line of bullshit." ... Carr also told Petitioner that because the police has physical evidence contradicting Petitioner's story, he was "kind of screwed." ... During the second interview, Carr told Petitioner he could "prove" Petitioner was at the scene of the crime... Carr added: "I don't believe you shot the man. What I do know is you're fucked unless you can come up with a reason and explain to me what happened."

None of Petitioner's allegations rises to the level of a threat indicating Petitioner's confession was coerced. Carr's statements that Petitioner was in "deep trouble," was "kind of screwed," and was "fucked" were designed to induce Petitioner to tell the truth. Carr did not threaten Petitioner with any specific consequence if Petitioner failed to confess.

Petitioner argues that Carr's misrepresentations about the evidence constituted coercion. ... During the first interview, Carr told Petitioner there was "physical evidence" that placed Petitioner at the crime scene... When Petitioner asked what evidence, Carr did not respond... During the second interview, Carr said the police had lifted fingerprints from Bennett's apartment door and a glass table inside the apartment, and the fingerprints matched Petitioner's.... After Carr continued to push for a reasonable explanation, Petitioner finally stated that "[i]t was a robbery."

Standing alone, Carr's misrepresentations would be insufficient to render Petitioner's confession involuntary. Petitioner also argues Carr made promises of leniency. Petitioner argues Carr told Petitioner that unless Petitioner gave a "reasonable explanation" for what occurred, he would be "fucked," whereas if he gave a reasonable explanation, he would be "set ... free." ... Petitioner's contention distorts the record. While Carr repeatedly asked for a "reasonable explanation"..., there is no evidence Carr promised leniency. Telling Petitioner that he's "screwed" or he's "fucked" if he does not cooperate... does not amount to a promise of leniency. Telling Petitioner that his "cooperation is gonna go a heck of a long way" is not a promise of leniency.  
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(Interrogator's "empathetic and caring demeanor" was not coercive)

In People v. Powell (2012) Court of Appeal, First District, Division 3, California, the court upheld the admissibility of the defendant's confession, finding that "There was no improper coercion here. It is no exaggeration to say that Sergeant Alexander came across more like a mentor than a police officer during the interview. He spoke about family, character, overcoming problems, accepting responsibility for wrongdoing, and becoming a better man. He urged Powell to "walk the righteous path," to "do the right thing," to "tak[e] control of your life." He touched Powell gently on the leg and shoulder and said he was a good person who never intended for someone to die. "[O]n that day you made a bad decision. But ... your decision was not as bad as the outcome. You're not a killer." He told Powell that he cared about him and his mother, and that he believed Powell was "put on this earth to excel and succeed in life. And, unfortunately, you're not, you are making decisions that aren't good up 'til this point. This could be a turning point." He urged Powell to help himself and "do what's best for you right now." He invited Powell to think about a future life, family and career "when this is all said and done...."

"But, at no point during the interview did either officer expressly or impliedly promise Powell that he might not be charged with, prosecuted for, or convicted of the murder if he cooperated. They did not suggest that Powell could influence the decisions of the court or district attorney, but simply suggested that his truthfulness would be beneficial in an unspecified way. Indeed, Sergeant Alexander said he did not know what kind of charges would be brought and that those decisions were made by other people. Under the circumstances, the officer's suggestion that it would be better for Powell to tell the truth and promptings to consider his future did not amount to a promise of leniency. ..
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(Statements such as, "these things happen, it is ok"; "we don't believe you had any intentions of doing it" and "a tragic accident occurred" do not offer a promise of leniency)

In US v. Hunter (2012) the US District Court, E.D. Virginia, upheld the lower court's decision to admit the defendant's confessions. "The facts and circumstances in this case establish that Hunter's statements were "voluntary" for constitutional purposes. Though still in her early twenties, the defendant was not a juvenile at the time of C.P.'s injuries or her interrogation. There is no evidence in the record that Hunter lacks education or has low intelligence. Neither Agent David nor Investigator Hampton harmed or threatened to harm Hunter if she did not answer their questions.

... "Of all the facts pertaining to the voluntariness of Hunter's statements, the most concerning are Agent David's intentional efforts to minimize the seriousness of the defendant's criminal exposure, which certainly had the potential to cause Hunter to discount her own assessment of her jeopardy, as evidenced in her initial description of events. The defendant also claims that by making such statements as such as "these things happen, it is okay", "no one is going to fault you for it", "we don't believe you had any intentions of doing it", and "a tragic accident occurred" [Doc. No. 33], Agent David made an "implied promise" that if Hunter were to admit to shaking C.P., she (Hunter) would suffer no punishment. Likewise, the defendant argues that Agent David impermissibly induced her statements by suggesting that she (Hunter) needed to provide accurate details of how C.P. was injured in order to maximize the chances of C.P.'s recovery. Based on these and other statements, the defendant claims that overall, her will was "overborne" by Agent David's tactics and that her "capacity for self-determination was critical impaired," particularly when Agent David allegedly conditioned Hunter's ability to see her husband on her willingness to confess.

... "In this Circuit, only certain types of promises, when not kept, will render a resulting confession involuntary.... These promises are limited to explicit statements by the questioning official that he will do, or not do, a specific act, in exchange for the confession... Moreover, the cases that have suppressed statements on the basis of an implied promise involve promises that were compelling in terms of the consequences that would befall the defendant or those associated with the defendant.

,,, "Agent David's statements were not so much promises as they were opinions concerning the criminality of Hunter's conduct and how it would be viewed by others. While Agent David's repeated assurances that she understood how Hunter must have felt and that she (Agent David) believed the incident was an accident were no doubt persuasive and inducing, nothing in those statements constitutes a quid pro quo promise to Hunter in exchange for a confession. Based on all the facts and circumstances, the Court finds that that Agent David did not make a promise to Hunter that vitiates her confession.  
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(The statement that questioning could go the "easy way" or the "hard way" does not constitute a threat when the statement is viewed in context.)

In People v. Frith (2012) the Court of Appeal, Second District, California upheld the admissibility of the defendant's confession, even though the defendant was told that the questioning could go the "easy way" or the "hard way" which he claimed was an implication of physical force. From the Court of Appeals decision:

Our review of the record reveals no substantial indicia of deception, undue pressure, or coercion by the detectives.... First, defendant's argument that Detective Durden's statement that questioning could go the "easy way" or the "hard way" implied the use of physical force takes the statement out of context. Directly after stating they could do it the easy way or the hard way, the detective explained, "The easy way is, that you [are] up front and honest. The hard way is, you want to play the game. Okay. If you want to play the game I have her story." Detective Durden went on to state there were always three sides to a story--his, hers, and the truth. Taken in context, it is clear the detective was exhorting defendant to tell the truth and even went so far as to indicate that he did not give defendant's story less weight than Breanna's. There was no threat, express or implied, in the detective's statements. A confession is not involuntary, where, as here, "[the detective] did not cross the line from proper exhortations to tell the truth into impermissible threats of punishment or promises of leniency."

Defendant next argues that when Detective Durden suggested he was "shucking and jiving," defendant believed the detective was accusing him of lying and felt intimidated by the detective's tone and body language. Even aggressive accusations of lying do not amount to coercive threats absent threats of punishment or promises of leniency.... In Joe R., the court held that a minor's confession was voluntary even though the police accused him of lying "loudly, emphatically, and with terse language (e.g., 'bullshit')...." ... Defendant does not claim to have suffered any language stronger than "bullshit," and as a 43-year-old man and a TSA officer, he was far less likely to have felt coerced by the implication that the officers believed he was lying than the 17-year-old boy in Joe R. Any implication by the detectives that defendant was lying does not invalidate his confession.
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(Court rejects claim investigators made "misleading and manipulative comments" that coerced the confession)

In People v. Flores (2012) the Court of Appeals, 4th District, CA rejected the defendant's claim that the "Detective Rondou's comments during his interview "were calculated to make [him] believe he would be legally benefitted by explaining his role in the crime to them." .... To support his argument, Flores cites the following comments from the interview:

"This is your opportunity to tell the truth ... 'cause if you were with somebody and they did something stupid that you didn't know about, that's on them. Let them deal with that but don't make this about you by lying about it because you're only, not only trying to help yourself, you're trying to help the other person...?"

"If you sit in here and lie about it, if you know that somebody did something wrong like that and you lie about it for them, that's helping them after the fact. That could cause you problems down the road."

"[W]hatever you say in here is what you have to live with down the road. We've had a lot of guys that we talk to them like this and then, you know, things go the way that they go and then they sit there and they, they look at us and say, man, I wish I would have told you when I had the chance. You know, all of a sudden now they're sitting in court."

"This isn't new and I've had countless times, most of the guys tell me, but the guys that didn't, countless times when they've looked over at me in court, [ ]cause we're sitting with them at the table, damn man, I wish I had told you that day, and I look back and say, I told you to tell us that day. [P] ... [P] We gave you every chance and now look at you.... [W]e know you got caught up in some stuff that you weren't planning on doing.... As men, we put it on the table, we deal with it.... It's not the end of the world but you [ sic ] sitting in here lying. All that does is make us think you had a bigger deal in this, whether you were the one that planned this out or you had a bigger role than what you really did...."

"This is your chance to tell your side of the story. If you want to go with what other people told us it's not going to be good for you."

Flores cites these statements as some of the "misleading and manipulative comments" made to him. He argues "[o]ver and over [the] police extolled the benefits of telling them the truth, and stated that it was his last chance, his one and only chance to reap the benefits of telling the truth."

The officers' statements were permissible exhortations to tell the truth. It was not objectionable to emphasize the dangers of lying to the officers, which if later discovered, would damage Flores's credibility. As the Attorney General notes, the officers did not tell Flores he would receive any legal benefit if he told the truth and admitted his involvement. Statements suggesting a defendant has one chance to cooperate with the police and tell his version of the facts generally are permitted. (See United States v. Gamez (9th Cir.2002) 301 F.3d 1138, 1144 [officer's "comment that it would 'behoove' [defendant] to disclose what he knew about [the victim's] murder and that this was his 'last chance' to come forward does not amount to coercion"].)    
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(The police can lie to a suspect by telling him that they are not recording the interrogation when they actually are)

In Evans v. Phelps (2012) the U.S. District Court, D. Delaware, upheld the court's decision to admit the suspect's confession even though the police had lied to the suspect when they denied that they were recording the interrogation. From the District Court's opinion:
"In his second sub-argument, Petitioner contends that his due process rights were violated by the admission of the confession, because Lieutenant Jamison's untruthful remark that the interrogation was not being videotaped amounted to police coercion and rendered Petitioner's confession involuntary.

Petitioner presented both sub-arguments to the Delaware Supreme Court on direct appeal. The Delaware Supreme Court denied Petitioner relief, holding that:

[I]t is clear from the videotape of [Petitioner] with Lieutenant Jamison that [Petitioner] was advised of his Miranda rights, and that [Petitioner] waived those rights knowingly, intelligently and voluntarily. Moreover, we agree with the Superior Court that [Petitioner's] inquiry of Lieutenant Jamison mid-interview as to whether the interrogation was being videotaped was not, as [Petitioner] argues, an invocation of his Miranda rights.

Here, Petitioner asked Lieutenant Jamison "Is this being recorded?" (D.I. 49, Evans v. State, No. 471, 2007, Appellant's App. # 1 at 27) Lieutenant Jamison responded, "No. I will get you to write whatever you confess to." Id. Nothing in this exchange indicates an unambiguous request on Petitioner's part for counsel or an unambiguous invocation of his right to remain silent. Therefore, the Court concludes that the Delaware Supreme Court's denial of Petitioner's first sub-argument was based on a reasonable determination of facts, and was neither contrary to, nor an unreasonable application of, clearly established Federal law. 
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(It was not a promise of leniency when the suspect was told he would "only be a witness if he had merely been present but had not been a shooter.")

In Thlang v. Jacquez (2012) the U.S. District Court, E.D. California, upheld the Appeal's Court's decision to reject the defendant's claim that "his statements after Detective Seraypheap urged him to be a witness rather than a suspect were involuntary and inadmissible because this was an implied promise of benefit or leniency which induced him to admit he was present at the shooting. In his view, the witness/suspect dichotomy was a false representation that admitting he was present "would result in his being a mere witness and not a suspect and his release from custody."

"As the trial court noted, defendant was strong-willed and was sophisticated about the nature of police interrogation tactics in a serious case. Detective Seraypheap had earlier told him that regardless of whether he did the shooting or not, "I'll tell you this right now, you can't get off the hook. You have to answer to it." After making the witness/suspect remark and before the incriminating admission, the detective told defendant that denying he was present "hurt[s] your case more." This, too, implies that there will be a case against defendant regardless of an admission of presence.   
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(Court finds use of a videotape as a prop during an interrogation acceptable)

In People v. Lewis (2012) the Supreme Court, Appellate Division, Fourth Dept., New York upheld the admissibility of the defendant's incriminating statements. On appeal the "Defendant further contends that one of his statements to the police was involuntary inasmuch as it was obtained as a result of police deception, i.e., the use of a videotape as a prop, and as a result of the conduct of the police in attempting to capitalize on the potential criminal liability of defendant's girlfriend. We reject that contention. "Deceptive police stratagems in securing a statement 'need not result in involuntariness without some showing that the deception was so fundamentally unfair as to deny due process or that a promise or threat was made that could induce a false confession' .... Under the circumstances of this case, the fact that the police used a videotape as a prop does not warrant suppression."  
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(Interrogating a suspect after continued denials not coercive)

In Murga v. State (2012) the Court of Appeals of Texas upheld the admissibility of the defendants confession, even though the defendant claimed his statements were coerced. In examining the circumstances surrounding the interrogation, the court reported that, "Both detectives testified they did not coerce or harass appellant into making a statement against his will and that appellant freely and voluntarily spoke to them; at no time did appellant ask to terminate the interview or state that he wanted an attorney. Appellant was offered necessities such as food, water, and bathroom breaks. The record reflects that appellant never complained that any lack of sleep or anything else rendered him unable to continue with the interview. Lopez testified the method of interrogation the detectives used was not to accept appellant's denials and to continue the interview until appellant told the truth. Appellant was accused several times of lying when he denied committing the crime, and he was encouraged to tell the truth even when he was crying. There were long periods of time when appellant was in the interview room alone.....

Viewing appellant's confession under the totality of the circumstances, we conclude the trial court's findings and conclusions that appellant's confession was voluntarily made and thus admissible are supported by the record. Appellant was informed of his Miranda rights, and he stated more than once that he understood his rights. Although the detectives continued to encourage appellant to tell the truth after he denied involvement in the offense, they did not threaten or coerce appellant during the approximately five hours they actually interviewed him."  
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(Telling defendant length of punishment and misrepresenting evidence not coercive)

In People v. Riley (2012) the Court of Appeal, Fourth District, Division 1, California upheld the admissibility of the defendant's confession even though the interrogator stated the possible punishment she was facing and misrepresented the evidence against the defendant. In their opinion the court points out the following:

"Riley contends she was coerced into confessing by Vasilis's promises of leniency in exchange for cooperation. Riley claims Vasilis's statement that they were discussing "something that could ... give you a, a sentence if you get to like youth authority till you're twenty-five or for life" was a promise to treat her as a juvenile if she confessed, or as an adult if she refused.

We acknowledge the weight of opinion condemning promises of leniency.... However, we reject Riley's assertion that Vasilis's comment amounted to such a promise. There is no indication in the record that Vasilis implied Riley would receive a juvenile sentence instead of a life term for cooperating, and Riley's assertion to the contrary is a mischaracterization. Vasilis stated the possible sentences Riley might face for murder, including incarceration in the youth authority until the age of 25 or life imprisonment, but did not suggest her confession would be a factor in determining the outcome in her case. ... he simply outlined the maximum sentences possible for her crime depending on her age, a distinction he made no claim of control over. A bare mention of consequences, absent some promise or threat, cannot overbear a defendant's will.... The evidence thus shows Vasilis's statements, however characterized, did not have a coercive effect upon Riley. Rather, Riley's internal guilt led to her confession.

Riley next claims her statements were involuntarily because Vasilis lied to her about the existence of surveillance video. We disagree. While "police deception is a factor to be taken into consideration" when determining whether a confession is voluntary, deception alone will not invalidate a confession..... Our courts have allowed numerous instances of police mendacity, including those "far more intimidating and deceptive" than those employed here..... Generally, deceptive interrogation techniques only cross the line when they are of a type "reasonably likely to procure an untrue statement." ... Put another way, deception only mandates reversible error when it overbears the will of the suspect to the extent that confession becomes preferable even to the truth.   
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(Promise to keep the suspect's name out of the media will not invalidate the confession)

In State v. Alaniz (2011) the Court of Appeals of Texas (Corpus Christie) ruled that the trial court abused its discretion when it found that an improper promise induced Alaniz to confess. During the interrogation the investigator stated to the suspect "we were going to do our very best to keep her out of the media."

The Court of Appeals stated that, "... the record supports a finding that Detective Lerma was explaining the policy of the police department to Alaniz, i.e., explaining how the department handled victims of alleged sexual assault... The trial court was unreasonable in isolating Detective Lerma's one statement made while articulating department policy and in concluding that because the one statement focused on Alaniz's concerns about the victim, it was a promise on the part of the detective that rendered Alaniz's confession invalid.

Furthermore, even assuming that Detective Lerma's statement was a promise, we agree with the State that there is no evidence that the promise induced Alaniz to confess or depended upon his confession. The court of criminal appeals has held that an " 'if-then' relationship [is] required to establish [such] a promise." .... "[T]here must be some indication that the police "induce[d] appellant to confess by implicitly or explicitly suggesting a 'deal, bargain, agreement, exchange, or contingency.' " ..... In other words, it is a promise made in exchange for a confession that is prohibited, not some free-standing promise untied to the decision to confess.    
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("Incessant questioning or demands to tell the truth" do not render a confession inadmissible)

In Bolton v. McEwen (2011), the U.S. District Court, N.D. California, upheld the trial court's decision to admit the defendant's incriminating statements. I their opinion the District Court outlined the following:


Bolton maintains that his statement to police should have been excluded as involuntary because the interrogation was lengthy, coercive, and included "incessant" demands to admit he killed Barfield. When an interrogation is recorded, as it was here, the facts surrounding the giving of the statement are undisputed, and we independently review the determination of the trial court on the ultimate issue of voluntariness.

 

" '.....Questioning may include exchanges of information, summaries of evidence, outline of theories of events, confrontation with contradictory facts, even debate between police and suspect.... Yet in carrying out their interrogations the police must avoid threats of punishment for the suspect's failure to admit or confess particular facts and must avoid false promises of leniency as a reward for admission or confession...."


Bolton first argues that the officers' "incessant" demands that he admit his involvement and their statements that they "knew" he did it rendered his confession involuntary and unreliable. Bolton's argument appears to be that he was coerced into confessing because the detectives were not being truthful about "knowing" that he killed Michelle. Police deception during interrogation, however, is not necessarily impermissible.....  "Police trickery that occurs in the process of a criminal interrogation does not, by itself, render a confession involuntary and violate the state or federal due process clause. [Citation.] Why? Because subterfuge is not necessarily coercive in nature.... And unless the police engage in conduct which coerces a suspect into confessing, no finding of involuntariness can be made.


Next, Bolton maintains that the detectives' "incessant" questioning during the "lengthy" interrogation rendered his confession involuntary. Our review of the videotape of Bolton's interrogation reveals otherwise. The interrogation lasted for only two hours, hardly "lengthy." The detectives, though insistent at times, never threatened Bolton or even raised their voices. Bolton did not appear confused or exceptionally fatigued. Much of the detectives' questioning involved background information and the sequence of events on the evening of the killing. The detectives pointed out inconsistencies between his and J.'s statements, and questioned him about his improbable claim that "some dudes" attacked his wife, yet he failed to try to help her or call police.   
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(Telling a suspect "that if he cooperated and told the truth, he would get more points off his ultimate sentence under the federal Sentencing Guidelines" was not a promise of leniency that would nullify the confession)

In US v Delaney (2011) the U.S. District Court of Appeals, Sixth Circuit found that such a statement did not render a confession inadmissible. In their discussion as to what constitutes an acceptable promise, the court stated the following:


"The first prong of the Mahan test asks whether the agents' statements were objectively coercive. A promise of leniency in exchange for cooperation may be a relevant factor in determining whether a confession was involuntary..... Nevertheless, such statements usually are permissible....  In general, such promises are coercive only "if they are broken or illusory."


We have found that "promises to inform a prosecutor of cooperation do not, ipso facto, render a confession coerced."......  Similarly, promises "to recommend leniency" or "speculation that cooperation will have a positive effect" do not make subsequent statements involuntary.

Here, the agents explained to Delaney that if he cooperated and told the truth, he would get more points off his ultimate sentence under the federal Sentencing Guidelines. They also explained that his chances of going home that day were greater if he cooperated. Certainly, the agents made these statements with the intent to compel Delaney to testify, but they were not false. The agents did not inform Delaney that he did not have to accept responsibility at that time to receive the sentence reduction, but the absence of this information does not render the statements illusory. Without more, these statements were permissible promises of possible leniency.   
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(Telling the suspect he could help himself by telling the truth was not coercive)


In Renteria v. Curry (2011) the US District Court, E.D. California, upheld the trial court's admission of the defendant's incriminating statements. From the District Court's opinion:

At the hearing on the motions, the prosecutor played, and the court reporter transcribed, a tape recording of that interview. Representative of the statements he characterizes as improper promises of leniency are a detective's comments that he could help himself by telling the truth and being "totally forthright" because it would "really look bad to the jury if the evidence doesn't match what you're telling us," that "it's going to go a lot better for you" if he were to cooperate, and that "[w]e can't help you unless you're honest." Representative of the statements he characterizes as improper threats of the death penalty are a detective's comments that "you need to help yourself right now because if you don't you're probably going down forever and you'll probably never see daylight again," that "the death penalty's not totally out of the question," and that "you're looking at a possible death sentence here." The record of the end of the interview shows that as a detective asked him to be "honest with us and tell us the truth" [Petitioner] interrupted him and said, "I want to talk to a lawyer." The detective replied, "I can't help you," and asked no other questions.

The court reject the defendant's claim that his confession was coerced by threats and promises, saying that "although Petitioner argues that the questioning was coercive, Petitioner presents no evidence that coercion led to Petitioner's statements or that Petitioner's will was overborne."   
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(References to religion during an interrogation do not result in a coerced confession)

In Reeves v. State (2011) the District Court of Appeal, Florida, Fourth District found that "we agree with the trial court's reasoning that the detectives' use of religion to encourage the defendant to tell the truth did not make the defendant's statements coerced. The trial court's parenthetical descriptions of Walker, Smithers, and McNamee are accurate. In each of those cases, the supreme court and this court considered various religious references in the context of the totality of the circumstances and found that the confessions in those cases were voluntarily given and not coerced. Similarly in this case, the detectives merely played off the defendant's initial religious expressions of "God as my witness" and "The Lord's more powerful than anybody on this earth" to encourage him to tell the truth. "Encouraging or requesting a person to tell the truth does not result in an involuntary confession."   
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(Reference to "God forgiving the suspect" did not render the confession involuntary)

In Harden v. State (2011) the Supreme Court of Mississippi upheld the lower court's decision to find the defendant's confession voluntary.  In their opinion the Supreme Court relates the following:

"In the audiotaped confession, Harden repeatedly denied that anything had happened with L.Q., before he finally confessed. Detective Zacharias told Harden that he was aware Harden was under a lot of pressure; Harden cried and stated that he might as well be dead. Detective Zacharias told Harden that as humans "we all make mistakes," have "weaknesses" and "at some point we all as men [must be] willing to step up to the plate and accept responsibility." The following exchange occurred:

Q: Do you believe in God?

A: Yeah, I believe in God.

Q: Okay, do you believe God forgives all?

A: Yeah, He forgives all.

Q: He does forgive all, doesn't He? No matter what your sins are, he forgives you doesn't He? But do you not also have to accept responsibility, as hard as it is for you right now? As a man, you need to step forward and accept forgiveness. But that forgiveness is not given easily. You have to meet half-way don't you? Right? And the only way is for you to accept responsibility, for you to admit your weakness ...

The trial court found that Harden's statement was voluntary. The trial court noted Detective Zacharias's testimony that Harden had been emotional, that he had understood what was being asked, and that he had understood his rights. The trial court held that the statements regarding religion did not amount to coercion. The court found that there was nothing to indicate Harden did not understand what was going on, that he had a particular susceptibility to religious matters, or that he was overcome due to a lack of mental capacity."  Click here for the complete decision.         

(Court upholds confession after suspect told he has two choices – cooperate and we will talk to the DA; don't cooperate and we will not talk to the DA)

In US v. Siler (2011), the U.S. District Court, E.D. Tennessee, agrees with the magistrate's decision when she found that during the interrogation of the defendant Investigator Ogle presented the defendant with two choices, either (1) cooperate, be charged with two burglaries, and the investigator would speak with the DA and the probation officer about the defendant's cooperation, or (2) not cooperate, potentially be charged with a "bunch of charges," and the investigator would not speak with the DA and the probation officer. The magistrate judge also found that one of the investigator's statements, taken in isolation, could constitute a promise of leniency, coupled with a threat of imprisonment. However, when the magistrate judge viewed that statement in the context of the entire interview and the whole of the investigator's conduct, the magistrate judge determined that it was not objectively coercive because the investigator repeatedly told the defendant he could not promise him anything except that he would go to the DA.

The defendant, on the other hand, asserts that he was presented with the following choices, either: (1) cooperate, not be charged with the burglary charges or a gun charge, and the investigator would speak with the DA and the probation officer about the defendant's cooperation, or (2) not cooperate, be charged with the burglary charges and a gun charge, and the investigator would not speak with the DA and the probation officer. The defendant also asserts that he made the inculpatory statements only after the investigator assured him he would not be charged.

In sum, the Court agrees with Magistrate Judge Shirley that the investigator promised the defendant that if he cooperated, the investigator would speak with the DA and the probation officer and, contingent upon the decisions of the DA and the probation officer, the defendant could receive drug rehabilitation and probation. The Court agrees with Magistrate Judge Shirley that, when the context of both interviews are considered, along with the whole of the investigator's conduct, Investigator Ogle did not threaten the defendant with immediate imprisonment versus promises of leniency dependent on the defendant's cooperation. Accordingly, because the investigator's promises of leniency were not illusory, did not threaten immediate imprisonment, and because the investigator did not promise the defendant that no charges would be brought against him if he cooperated, the Court agrees with the magistrate judge that the investigator's statements and/or promises of leniency regarding the burglary charges, drug rehabilitation, and probation were not objectively coercive."  Click here for the complete decision.           

 

(Telling a suspect that he is lying is not coercive)

In Revis v. State (2011) the Court of Criminal Appeals of Alabama upheld the admissibility of the defendant's confession, even though the defendant had claimed that his statements were the result of coercive techniques, including the fact that the police told him he was lying to them during the interrogation.

In addressing this issue the Appeals Court points out several cases that rejected the suggestion that telling a suspect he is lying is a coercive tactic:

"Moreover, any statements that the investigators made indicating that Revis was lying or accusing him of lying did not cross the boundaries of impropriety by becoming threats. See United States v.. Artis, [No. 5:10-cr-15-01, September 16, 2010] ___ F.Supp.2d ___, ___ (D.Vt.2010)("[T]he only evidence that weighs in favor of a finding of involuntariness is the fact that three law enforcement officers questioned Mr. Artis, confronting him with evidence of his guilt and accusing him of lying after telling him that lying to them would be a crime. This evidence supports a conclusion that the law enforcement officers were confrontational, but it does not support a conclusion that they were coercive. See Parsad[v. Greiner], 337 F.3d[175] at 185 [ (2d Cir.2003) ] ('all custodial interrogations inherently involve pressure, and officers routinely confront suspects with incriminating evidence.')." See also State v. Owen, 202 Wis.2d 620, 642, 551 N.W.2d 50, 59 (1996)(the court found that Owen's claim that his statement was involuntary because of improper police tactics such as "good cop/bad cop" and confrontational questioning was without merit and stated, "The adoption of roles by the investigators and [the investigator's] accusation that Owen was lying and that he was responsible for [the victim's] death are not improper police procedures. Further, the fact that the investigator raised his voice and invaded Owen's space by getting close to him does not establish actual coercion."). See also Estrada v. State, 313 S.w.3d 274 (Tex.Crim.App.2010)(statement by Estrada, a youth pastor, to police in which he admitted impregnating and murdering a member of his youth group was not coerced and involuntary despite the use of the following interrogation techniques: accusing him of impregnating and murdering the victim, falsely telling his girlfriend that he had admitted to their allegations and then allowing the girlfriend to meet with him, telling him he was the central figure in the investigation, and accusing him of lying)."  
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(Court rules that exhorting the defendant to be truthful so that "his sins would be forgiven" was not coercive)

In State v. Phillips (2010) the Missouri Court of Appeals, Southern District, upheld the admissibility of a confession after a four and one half hour interrogation, stating, in part, that "Missouri courts have found confessions to be voluntary which resulted from interrogations that lasted as long as or longer than Defendant's. See State v. Smith, 735 S.W.2d 65, 68 (Mo.App.1987) (holding defendant's confession to be voluntary when it came after six and a half hours in custody with intermittent interrogation); State v. Simpson, 606 S.W.2d 514, 517 (Mo.App.1980) (holding that continuous questioning for four hours is not coercive)."
In this case, the defendant, objected to "Detective Hope's exhortation that he be honest so that God would forgive him of his sins. While the cynic may question the sincerity of the Detective's spiritual advice, these remarks clearly did not represent promises of worldly benefit, nor did they suggest that by confessing Defendant would be able to escape punishment or incur a lesser one.... An appeal to a suspect's religious beliefs does not render his confession involuntary unless other circumstances indicate that his will was overborne, and Defendant in this case has put forth no such evidence." 
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("[T]here is nothing inherently wrong with efforts to create a favorable climate for confession.")

In US v. Sanchez (2010) the US Court of Appeals, Eighth Circuit, overruled the trial court's decision to grant the defendant's motion to suppress incriminating statements.
The trial court had found that "the officers were angry and intimidating toward Sanchez, got close to Sanchez's face, yelled and badgered Sanchez, told Sanchez that he was "going to jail," and threatened Sanchez with charges of attempted murder and assault with a deadly weapon.... Additionally, the magistrate judge concluded that the officers' "threat of possible violent retaliation" by the victim's brother-who had a reputation for violence-was "particularly coercive in light of the fact Officer Rave knew Sanchez had younger sisters." .... Also, he found that the officers' showing Sanchez a picture of the victim's injuries "may have been a significant factor in overbearing the will of Sanchez, given his level of immaturity, low tolerance for resisting others' influence, and seeing his mother emotionally upset after viewing the graphic photograph of [the victim's] injuries."

The Court of Appeals reversed, finding that "Obviously, interrogation of a suspect will involve some pressure because its purpose is to elicit a confession. In order to obtain the desired result, interrogators use a laundry list of tactics. Numerous cases have held that questioning tactics such as a raised voice, deception, or a sympathetic attitude on the part of the interrogator will not render a confession involuntary unless the overall impact of the interrogation caused the defendant's will to be overborne.  Astello, 241 F.3d at 967 (internal quotations and citations omitted). "[T]here is nothing inherently wrong with efforts to create a favorable climate for confession." United States v. Santos-Garcia, 313 F.3d 1073, 1079 (8th Cir.2002) (internal quotations and citation omitted)."  Click here for the complete decision.

           

 

(Suggesting defendant would receive counseling and lenient treatment if he admitted to the sex offenses did not invalidate the confession)

In State v. Douglas, (2009) the Court of Appeals of Ohio, Tenth District, upheld the admissibility of the defendant's confession. In this case the "Appellant argues that Phillips rendered his confession involuntary by suggesting that he would receive counseling and lenient treatment if he admitted to the sex offenses. Assurances that a defendant's cooperation will be considered or that a confession will be helpful do not invalidate a confession, however."

"Appellant argues that his low intelligence and learning disability rendered his confession involuntary. The record does not establish that appellant's mental condition led to an involuntary confession. Although the psychologist who evaluated appellant recognized that appellant has difficulty with complex information and that his "passive, compliant style" may prevent him from seeking needed assistance, he also concluded that appellant has the "capability to understand concepts and principles" and "make a decision that is likely to be in his best interest." (Defense Exhibit A.) Furthermore, the psychologist concluded that appellant is neither mentally ill nor mentally disabled.

"In addition, the totality of the circumstances establishes that appellant's will was not overborne and his capacity for self-determination was not critically impaired when he spoke with Phillips. ..... Appellant's videotaped confession shows that he comprehended Phillips' questions and was able to express his thoughts and recall his actions in a rational manner. Lastly, appellant was not new to the police interview process; Phillips had previously interviewed appellant on a different matter."  
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(Court rejects claim that officers created an environment that caused defendant's will to be overborne)

In State v. Goodwin, the South Carolina Court of Appeals upheld the defendant's confession as voluntary. Goodwin maintained that the trial court abused its discretion by admitting his statements into evidence when the officers created an environment that caused his will to be overborne.

Here, Goodwin maintains his will was overborne by the culmination of police tactics used during his interrogation. Specifically, he cites the officers' lying about evidence, threatening inappropriate and unjustifiable police action against his family members, strongly suggesting they could influence the State's decision to seek the death penalty, and numerous emotional appeals relating to his family.

When considering the Withrow factors to determine the voluntariness of Goodwin's statement, we find the trial court properly admitted Goodwin's statements. Goodwin evidenced his knowledge of the judicial system in the audio taped interview when he initiated a conversation about his probable sentence. The initial interrogation lasted seventy minutes, and Goodwin was offered food, drink, and the opportunity to use the facilities. Moreover, the first four statements were at the police station, in an interview room and in the officers' offices. The fifth interview was at the jail, and the sixth was during an excursion from jail. Furthermore, the questioning was at the most a continuous seventy minutes, and while there were six individual statements, all occurred within a three-day period.   
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(Telling the suspect that the prosecutor will be advised of their cooperation does not constitute a promise of leniency)

In People v. Carrington, (2009) the Supreme Court of California upheld the confession that the defendant killed three people and examined each interrogation to assess the defendant's claims that she confessed due to promises of leniency.

In their opinion the Supreme court stated that the "Defendant also contends that Detective Lindsay's assurances that the police merely were attempting to understand defendant's motivation in committing the crimes impermissibly coerced her to confess. To the contrary, Detective Lindsay's suggestions that the Gleason homicide might have been an accident, a self-defensive reaction, or the product of fear, were not coercive; they merely suggested possible explanations of the events and offered defendant an opportunity to provide the details of the crime. This tactic is permissible."

They also stated that "The statements made by the officers did not imply that by cooperating and relating what actually happened, defendant might not be charged with, prosecuted for, or convicted of the murder of Esparza. The interviewing officers did not suggest they could influence the decisions of the district attorney, but simply informed defendant that full cooperation might be beneficial in an unspecified way. Indeed, defendant understood that punishment decisions were not within the control of the police officers. As noted above, she said it "just depends on the judge and DA and how are they going to prosecute it." Under these circumstances, Detective Sherman's statement that he would inform the district attorney that defendant fully cooperated with the police investigation did not constitute a promise of leniency and should not be viewed as a motivating factor in defendant's decision to confess."   
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("You're digging a hole you're not gonna be able to get out of." "This is the one percent of the time, I tell you, if you keep quiet they're gonna hammer you." Discussion of what constitutes a threat)

In State v. Evans (2009) the Supreme Court of New Mexico examined the defendant's claim that his September 18, 2005 statement to police, admitting culpability in the victim's death, should have been suppressed because the police used coercive tactics which rendered his statement involuntary. Specifically he claimed that the following statements made by the interrogator were coercive:

"You're digging a hole you're not gonna be able to get out of." "This is the one percent of the time, I tell you, if you keep quiet they're gonna hammer you."

"[I]f you leave it like it is, you're through...."

Defendant's interrogator made this statement after Defendant denied involvement in the killing:

"Just because you don't wanna be a rat, you're gonna be treated as a monster in court and you're never gonna get out of prison."

The Supreme Court then discussed what constitutes a threat:

"The critical difference in the case law between impermissibly coercive threats and threats which do not cross the line is in how credible and immediate the accused perceives the threat to be. Threats which the accused may perceive as real have been held to be impermissibly coercive. (holding that where defendant-inmate had a below-average IQ and had already received "rough treatment" by other inmates and was a convicted child murderer, a promise to protect him from further physical violence if he confessed amounted to a "credible threat" of physical violence). On the other hand, threats that merely highlight potential real consequences, or are "adjurations to tell the truth," are not characterized as impermissibly coercive. (holding that police threat to the defendant that the court would "hang [your] ass" if the defendant did not confess, a comment which was disputed by the State, did not render confession involuntary). It is not per se coercive for police to truthfully inform an accused about the potential consequences of his alleged actions.

Three of the four statements at issue here could be taken as threats: (1) "they're gonna hammer you"; (2) "you're through"; and (3) "you're gonna be treated like a monster in court and you're never gonna get out of prison." All of these statements lie between the two poles described above-the statements are more than adjurations to tell the truth, but less than credible threats of violence. "You're never gonna get out of prison" can reasonably be taken to refer to a potential life sentence-well within reality for a first-degree murder conviction, which is at issue in this case. "You're gonna be treated like a monster in court" appears to be a reference to the way those in court might perceive Defendant. The comment may be a stretch or an exaggeration, but it is not out of the realm of a real possibility. Agent Ness never specified what he meant by "you're through," or who he was referring to as "they" in "they're gonna hammer you." Both statements, taken in isolation, could be taken as a threat of physical violence. However, taken in context with the entire interrogation, where Agent Ness repeatedly communicated to Defendant that he was not interested in vengeance, and certainly not in physical vengeance, the statements-vague though they are-cannot credibly be taken to threaten Defendant with physical violence.

Our case law makes clear that deception is not coercive per se. ( "[D]eception, in itself, is not a basis for ruling, as a matter of law, that a confession should be suppressed."). The degree of deception is but one factor to consider in deciding whether a confession was given contrary to the accused's free will. Considering the deception as one factor in our analysis, we must also consider Defendant's probable reaction to those statements. At the time of the confession, Defendant was a 30-year-old man who, in the district court's words, was "in full control of his faculties," and who had prior exposure to the criminal justice system. Agent Ness made veiled and somewhat ambiguous threats to Defendant, but unlike the "mentally dull" teenage defendant in Payne v. Arkansas, or an illiterate defendant with mental retardation, as in Culombe. Defendant had an adult capacity to sort exaggerated tough talk from real threats. There is certainly a point at which police threats, promises, or deception, would cross the line into coercion, but that line has not been crossed here."   
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(Court rejects claim of threatening statements)

In State v. Neal (2009) the Court of Appeals of Arizona upheld the trial court's decision to admit the defendant's confession. The defendant claimed that he confessed as a result of threatening statements made to him during the interrogation. The court found that:

"Here, the statements made by police to which Defendant's counsel objected included, "Before you go down the path of not being able to set things straight and us going to the prosecutor and saying hey, [']he wants to beat around the bush and all this craziness,['] then you are looking at other things," "When this story comes out, ultimately, who will you be insulting is the person who [,] who reviewing the case-who is the prosecutor" and "If Jarvis didn't tell us everything, then that is something we are going to have to report."
Tempe Police Department Detective Trent L. (Detective L.) testified that such statements were designed to communicate that "[ t] he prosecutor was going to indeed review the case, and that the evidence as it sat" did not include Defendant's version "as to what happened inside the store that evening." Defendant testified he believed that if he did not confess, "the punishment was going to be harsher." The trial court and this court reviewed a recording of the interrogation and concluded that "there was no conduct on the part of the police that served to overcome the defendant's will or there were no promises, no threats, no coercions, no force."
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(Defendant claims confession was coerced because interrogator was sympathetic, understanding and tired to justify his criminal act – court upholds confession)

 

In State v. Parker, the Court of Appeals of South Carolina stated that "Few criminals feel impelled to confess to the police purely of their own accord without any questioning at all.... Thus, it can almost always be said that the interrogation caused the confession.... It is generally recognized that the police may use some psychological tactics in eliciting a statement from a suspect.... These ploys may play a part in the suspect's decision to confess, but so long as that decision is a product of the suspect's own balancing of competing considerations, the confession is voluntary."

"Excessive friendliness on the part of an interrogator can be deceptive. In some instances, in combination with other tactics, it might create an atmosphere in which a suspect forgets that his questioner is in an adversarial role, and thereby prompt admissions that the suspect would ordinarily only make to a friend, not to the police." Miller v. Fenton, 796 F.2d at 604 (3d Cir.1986), cert. denied, 479 U.S. 989, 107 S.Ct. 585, 93 L.Ed.2d 587 (1986). "Nevertheless, the 'good guy' approach is recognized as a permissible interrogation tactic." Id. (holding confession admissible despite interrogating officer's "supportive, encouraging manner ... aimed at winning [appellant's] trust and making him feel comfortable about confessing."). See also Beckwith v. United States, 425 U.S. 341, 343, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976) (interrogator had sympathetic attitude but confession voluntary); Frazier v. Cupp, 394 U.S. 731, 737-38, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969) (confession voluntary when petitioner began confessing after the officer "sympathetically suggested that the victim had started a fight.")."   
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(No quid pro quo bargain)


In Harris v. State (2008)  "Harris claims that his admissions were obtained through police trickery, and the detectives "delude[d]" him by minimizing the dangers of admitting to the assault and robbery and threatening to prosecute for first-degree premeditated murder on the basis of statements allegedly made by other defendants." The Court of Appeals found that "the detectives did not make promises or threats that coerced Harris into confessing. Rather, they made general statements, such as, that a witness had identified Harris and that Harris faced significant jail time. They did not offer a quid pro quo bargain for a confession. See Philmore v. State, 820 So.2d 919, 928 (Fla.2002) (finding that statements suggesting leniency in interview are objectionable only if they amount to express quid pro quo deal). Nor did the detectives indicate that murder resulting from a robbery is any less serious than intentional murder. They only inquired as to whether the boy had planned a robbery, as opposed to having grabbed the victim off the bike to intentionally beat him to death."
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(Court rejects claim that lies, threats and promises coerced a confession)   

In US v. Freeman (2008) the Defendant claimed that his will was overborne by a number of factors, including the interrogators' use of the following lies, threats, and promises. "Over the course of the interview, SA Bogle suggested to the accused that everyone makes mistakes and the best thing to do is admit it and get it behind you. He promised the accused that if he cooperated, they could tell his commander about it and it might help. On the other hand, he told the accused, if you don't tell the truth, the case will go downtown and with a civilian victim you could get five years in jail. When the accused denied being out that night, SA Bogle lied to him and told him a witness saw him out. He also told the accused that his fingerprints were found at the scene." The Court found that "Viewing all the facts taken together, we agree with the Court of Criminal Appeals that they were not "so inherently coercive as to overcome the appellant's will to resist."
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(Statements that he had some "serious problems" and needed to do the right thing and help himself out by talking to them, and that he was facing "serious time," fall within the permissible bounds of psychological persuasion)       

In US v. Zavala (2008) the court stated that, although it is possible to find involuntariness based on psychological coercion, "it is generally recognized that the police may use some psychological tactics in eliciting a statement from a suspect." The question to be answered when such tactics are used is whether they 'were so manipulative or coercive that they deprived [the suspect] of his ability to make an unconstrained, autonomous decision to confess.' However, an investigator may "play on the suspect's sympathies or explain that honesty might be the best policy for a criminal who hopes for leniency from the state."

The statements that the interrogator made that he had some "serious problems" and needed to do the right thing and help himself out by talking to them, and that he was facing "serious time," (Tr. 5/12/08 13, 20),-fall within the permissible bounds of psychological persuasion. These statements, informing petitioner of the possible repercussions of conviction, were not "so manipulative and coercive that they deprived [petitioner] of his ability to make an unconstrained, autonomous decision to confess." The Court concluded that the defendant was properly Mirandized and was not coerced into giving a confession in violation of his Fifth Amendment rights.
Click here for the complete opinion.

 

False imprisonment – why it is important for the investigator not to block the employee's access to the interview room door

 

Asay v. Albertsons, Inc. (2007) http://www.reid.com/pdfs/200708_legalupdates.pdf

           

 

(Continued exhortations to tell the truth and references to religious beliefs do not render a confession inadmissible)

 

In State v. Blank (2007) the Supreme Court of Louisiana relied on the videotape of the interrogation to uphold the admissibility of a confession the defendant claimed was coerced as a result of the interrogators references to the defendant's deceased mother, appeals to his emotions and religious beliefs, as well as repeated exhortations to tell the truth. The court stated the following:

While defendant's factual allegations are accurate, he does not show that any of the state's conduct coerced his admissions or rendered the confession involuntary. Our review of the videotapes and the verbatim transcript does not show the officers exercising any type of coercion which would at all indicate that this confession was involuntary. To the contrary, the vast majority of the interview was extremely benign on the part of the officers and Blank was treated very well throughout. In response to defendant's specific examples of coercive conduct, it is evident from the record that defendant did not request food during the interview, during which, notably, none of the interrogators stopped to eat a meal. Despite intermittent statements expressing fatigue and or physical discomfort, defendant never requested to terminate the interview. Moreover, for the most part, officers accommodated defendant when possible, providing him drinks, allowing him to use the restroom and heating the interrogation room. While at first the officers denied defendant's request to smoke, after he smoked a cigarette while he was alone in the bathroom, they continued to let him smoke, and he was allowed to smoke before he confessed to any crimes.

As to the references to defendant's deceased mother, appeals to a defendant's emotions and/or religious beliefs typically do not render an ensuing confession involuntary. Defendant also claims that the officers' relentless exhortations that he tell the truth in conjunction with false suggestions indicating that they possessed forensic evidence of his guilt, illegally coerced the confession. Defendant claims that during the interrogation, officers used the word "truth" no less than 30 times, including several communications in which they urged that he answer their questions truthfully. Courts have routinely held that a mild exhortation to tell the truth, or a remark that if the defendant cooperates the officer will "do what he can" or "things will go easier," will not negate the voluntary nature of a confession.

In this situation, defendant fails to show the existence of coercion rendering the statement involuntary.  Click here for the complete decision

           

 

(Offer to work with police in exchange for favorable recommendation to prosecutor upheld)

 

In State v. Moore (2007) the Washington Court of Appeals ruled that:

"Here, the trial court found that the offer to Moore (to work with the police in exchange for a favorable recommendation to the prosecutor) was made post- Miranda, but not necessarily before or after the confession (which was also post- Miranda). A mere promise of leniency, without more, is not enough to invalidate a confession. State v. Riley, 19 Wn. App 289, 297-98, 576 P.2d 1311 (1978). At best, all that was promised here was a recommendation of leniency, which was offered in exchange for informant work, not for the confession. Because no evidence of coercion for a confession is in the record, the findings of fact support the conclusion that the offer did not invalidate Moore's confession.   Click here for the complete decision.

           

 

(US District Courts upholds admissibility of incriminating statements even though subterfuge was used as to the purpose of the interview)

 

In US v Rosen (2007) the US District Court, E.D. Virginia found that the incriminating statements made by the defendants were admissible even though the investigators misrepresented the reason for the interview and even indicated at one point that the interviews did not relate to a criminal investigation.  In their decision the court stated, "No Supreme Court or Fourth Circuit decision has ever suppressed a defendant's statements on the sole ground that false statements by law enforcement officers to the defendant rendered the statement involuntary. At most, courts consider police deception or trickery as one factor to consider in a totality of circumstances assessment of voluntariness."  Click here for the complete case.

           

 

(What constitutes a promise of leniency?)

 

In U.S. v Kasey (2007) the US District Court D. Arizona examined the issue of what statements constitute a promise of leniency that would render a confession inadmissible. They found that such statements as:

"You can help yourself out by telling the truth."

"[T]his is probably going to be a 50-year-to-life-type count. You know you need to mitigate, try to help yourself out...."

"And they'll give the benefit for standing up. Because that's the way the Federal system works for cooperation with the Government. That's the way it works. You get the benefits for doing that. It shows a truthfulness. Whether the truth hurts, you get a benefit for the truth, and the truth can hurt. It's not fun talking about this kind of stuff."

"You just need to make a decision if you want to do something like that to explain to the world why this went down. But it's up to you. I mean, this is to help you. It's not going to help me, I don't need the help."

"They're young like you are. They are trying to do whatever they can to rectify a bad situation and make it in their best interest, and I would do the same thing".

"There's just a huge amount of evidence and when we work with the Apache Detectives and us, that's the kind of cases we put together. And they're very thorough, very solid. So you're young, you need to do something that's going to help you out."

The court stated, "A promise only vitiates consent if it is "sufficiently compelling to overbear the suspect's will in light of all attendant circumstances."... Reciting possible penalties or sentences does not render a statement involuntary.


Here, the agents told Defendant that she could help herself by telling her version of the events. There is nothing in the interview transcript to indicate that the agents said or did anything to overbear Defendant's will. Merely stating that Defendant should "help herself by telling her story" is not sufficiently compelling to overbearing her will by offers of leniency. Furthermore, Defendant states that she confessed to prevent others, who had nothing to do with the murders, from being charged. At no point in the interview did Defendant indicate that she confessed because the agents promised leniency or that her confession was in exchange for a lighter sentence. Nor do the agents state that they are offering Defendant a lesser sentence in exchange for her confession. Finally, the agents' recital of possible prison sentences does not render Defendant's statement involuntary."
Click here for the complete decision

           

 

(California Supreme Court upholds the use of deception)

 

In People v. Smith (2007) the interrogating officers administered to the defendant a "Neutron Proton Negligence Intelligence Test" that pruportedly showed that the defendant had recently fired a gun. On appeal the defendant claimed that this was a coercive tactic. In the California Supreme Court's opinion they stated, "Police deception "does not necessarily invalidate an incriminating statement." ( People v. Maury (2003) 30 Cal.4th 342, 411, 133 Cal.Rptr.2d 561, 68 P.3d 1.) Courts have repeatedly found proper interrogation tactics far more intimidating and deceptive than those employed in this case. (See, e.g., Frazier v. Cupp (1969) 394 U.S. 731, 739, 89 S.Ct. 1420, 22 L.Ed.2d 684 [officer falsely told the suspect his accomplice had been captured and confessed]; People v. Jones (1998) 17 Cal.4th 279, 299, 70 Cal.Rptr.2d 793, 949 P.2d 890 [officer implied he could prove more than he actually could]; People v. Thompson (1990) 50 Cal.3d 134, 167, 266 Cal.Rptr. 309, 785 P.2d 857 [officers repeatedly lied, insisting they had evidence linking the suspect to a homicide]; In re Walker (1974) 10 Cal.3d 764, 777, 112 Cal.Rptr. 177, 518 P.2d 1129 [wounded suspect told he might die before he reached the hospital, so he should talk while he still had the chance]; People v. Watkins (1970) 6 Cal.App.3d 119, 124-125, 85 Cal.Rptr. 621 [officer told suspect his fingerprints had been found on the getaway car, although no prints had been obtained]; and Amaya-Ruiz v. Stewart (9th Cir.1997) 121 F.3d 486, 495 [suspect falsely told he had been identified by an eyewitness].) Indeed, at least one Court of Appeal has approved of the particular practice used in this case. ( People v. Parrison (1992) 137 Cal.App.3d 529, 537, 187 Cal.Rptr. 123 [police falsely told suspect a gun residue test produced a positive result].)

After examining the circumstances surrounding the "Neutron Proton Negligence Intelligence Test," it does not appear that the tactic was so coercive that it tended to produce a statement that was involuntary or unreliable. 
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(Court outlines acceptable interrogator behavior)

 

In reaching their decision to deny the motion to suppress the defendant's confession in the case US v Jourdain (2007) the court outlines acceptable interrogator behavior.  In their decision they state, "As our Court of Appeals has recognized:

To state the obvious, "interrogation of a suspect will involve some pressure because its purpose is to elicit a confession." [ United States v. Astello, 241 F.3d 965, 967 (8th Cir.2001), cert. denied, 533 U.S. 962 (2001) ]. "[T]he fact that the tactics produced the intended result * * * does not make a confession involuntary." Id. at 968. In other words, 'there is nothing inherently wrong with efforts to create a favorable climate for confession." United States v. LeBrun, 306 F.3d 545, 555 (8th Cir.2002)(internal citations omitted. " '[Q]uestioning tactics such as a raised voice, deception, or a sympathetic attitude will not render a confession involuntary unless the overall impact of the interrogation caused the defendant's will to be overborne.' " Astello, 241 F.3d at 967 (quoting Jenner v. Smith, 982 F.2d 329, 334 (8th Cir.1993)). Nor will a promise of leniency, an "expressed disbelief in the statements of a suspect * * *, or lie[s] to the accused about the evidence against him" necessarily render a confession involuntary. Wilson v. Lawrence County, 260 F.3d 946, 953 (8th Cir.2001) (internal citations omitted). Rather, the coercive conduct must be "such that the defendant's will was overborne and his capacity for self determination critically impaired." Astello, 241 F.3d at 967 (internal citations omitted).

As was true with Kelly's statements in Graves' vehicle, we find no responsible basis upon which to conclude that the Defendant's will was overborne by the questioning techniques that were employed by Peterson, or because of any of Kelly's individual characteristics."
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Accident scenario/ Self-defense    

 


(Suggesting to the defendant that the stabbing death was self-defense does not render the confession involuntary)

In Fundaro v Curtin (January 2015) the US District Court, E.D. Michigan, denied the defendant's claim that his confession should have been found to be involuntary because the police suggested that the stabbing was self-defense. From the court's opinion:

"Petitioner's sole claim is that the statements he made to police after his arrest were involuntary and should have been suppressed because the interrogating officers misrepresented the consequences of admitting to the homicide. He claims that the officers told him that his conduct constituted self defense and therefore he did not have anything to worry about by cooperating. The trial court held an evidentiary hearing on the claim in which the officers in question and Petitioner testified. After the hearing, the trial court issued an opinion finding that Petitioner's confession was voluntary and a product of his own free will. The Michigan Court of Appeals upheld this decision. Respondent argues that the state court adjudication of Petitioner's claim reasonably applied the established Supreme Court standard, and therefore habeas relief is not warranted.

The test for the voluntariness of a statement to the police is whether the confession [is] the product of an essentially free and unconstrained choice by its maker[.] If it is, if [the suspect] has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.

Here, the evidence presented at the pretrial hearing indicted that Petitioner was informed of and waived his Miranda rights. Petitioner did not contest that he told the officers that he was willing to talk to them after he was read his rights, and he did not claim that he invoked his right to cut-off questioning during the interview. Petitioner was familiar with the criminal justice system and police questioning, having been involved with investigations from 2007-2009.

The officers participating in the interview denied that they made any threats or promises to Petitioner in exchange for his cooperation. Petitioner appeared to the officers to be coherent, understood what was happening, and answered questions logically. During the initial interview by Sergeants Troy and Wittebort, which lasted from 7:45 p.m. until 9:00 p.m., Petitioner denied any involvement at all in the death of the victim. The officers suggested that perhaps the victim attacked him because a hammer was found near his harm.

Mistretta told Petitioner that he did know anything about the facts of the homicide. He explained that he was telling Petitioner that he should cooperate because if he didn't, then the officers would not hear his side of the story and consider that Petitioner may have acted in self-defense. Petitioner then claimed that the shop owner came at him with a hammer so he stabbed him in self-defense.

The record supports that state court's decision that Petitioner's statement to the police was voluntary. "Ploys to mislead a suspect or lull him into a false sense of security that do not rise to the level of compulsion or coercion to speak are not within Miranda's concerns." So while it is true that a promise of leniency can render a confession coerced depending on the totality of the circumstances, ... here there was no promise of leniency made to Petitioner. The officers merely informed defendant that if what he did was self-defense then it was in his best interests to say so. While Petitioner testified that he understood the officers to be saying that he did nothing wrong, their testimony shows that they made no such representation. Rather, the statements were conditional: if Petitioner acted in self-defense, then he should explain his side of the story. The statements did not inform him that he in fact acted in self-defense. In light of this, Petitioner's choice to give his version of events was reasonably construed by the state courts to be the product of an essentially free and unconstrained choice by Petitioner. Schneckloth, supra. The police did not promise Petitioner that his story would exonerate him, only that the interview was his opportunity to share it. The state court decision that Petitioner's statement was voluntary therefore did not constitute an unreasonable application of the established Supreme Court standard.

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(Georgia Supreme Court rejects the idea that a suggestion that the shooting was an accident constitutes a hope of leniency)

 

In Smith v. State (June 2014) the Supreme Court of Georgia held that statements by the police detectives during a custodial interrogation to the effect that shooting the victim was an accident in response to the victim lunging at the defendant did not constitute a slightest hope of benefit that could render defendant's confession inadmissible.  From their opinion the Supreme Court stated the following:

 

"At the time appellant made a statement to police, he was under arrest for the Perez robbery and suspected of the two other crimes. He was given his Miranda rights before the interrogation commenced and he waived those rights. Within the first twenty minutes of the interrogation, appellant admitted that he shot Justin Patel at the BP station. During the discussion of the BP incident, the police told appellant that there was a surveillance tape showing that the victim lunged at appellant before appellant shot him. The police made statements to appellant to the effect that the shooting was an "accident" in response to the victim lunging at appellant and appellant eventually made inculpatory statements....  Appellant contends the trial court erred in admitting the videotaped confession into evidence because he contends it was induced by the slightest hope of benefit "as the hope of lighter punishment was clearly implied by the [detective's] excusable accident theory," in violation of the former OCGA S 24–3–50. We disagree. "A hope of benefit generally arises from 'promises related to reduced criminal punishment—a shorter sentence, lesser charges, or no charges at all.' [Cit.]" ... At no point did detectives tell appellant that he would not be charged with murder, that he would be charged with a crime less than murder, or that he would receive lesser punishment if he confessed. In fact, appellant understood that he would be incarcerated for his actions because he twice asked about obtaining a bond and made statements to the effect that he knew he was going to jail. Under these circumstances, there was no violation of OCGA S 24–3–50."


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(Investigator's statement that felony murder would receive a lesser sentence than premeditated murder did not render confession involuntary)

 

In State v. Turner (May 2014) the Nebraska Supreme Court held that misinformation by police officers during the defendant's interview that felony murder would receive a lesser sentence than premeditated murder did not overcome defendant's will so as to render his confession involuntary based on purported promises of leniency. From the court's opinion:

 

"Turner argues that his confession was involuntary because it was induced by an implied promise that he would receive a lesser sentence if he confessed that the shooting was accidental. As evidence of this implied promise, he points to Ficenec's statements that it made "a big difference" how and why the shooting occurred and to Krause's statement that the possible penalty could be 1 to 10 years' imprisonment if the shooting was accidental. He claims that these statements constituted an implied promise of leniency which overcame his will and caused him to confess. He further argues that the officers' statements were deceptive because first degree murder encompasses felony murder—which does not require a showing of malice, intent, or premeditation.

 

Turner is correct in his assertion that the officers deceived him during the course of the interview at the parole office. Ficenec's statements as to there being "a big difference" how and why the shooting occurred, and specifically Krause's statement that Turner could get 1 to 10 years' imprisonment if the shooting was accidental, incorrectly indicated that felony murder would receive a lesser sentence than premeditated murder...

 

... We have previously noted that a deceptive statement regarding possible sentences is only one of several factors to be considered. In State v. Thomas, we determined that the defendant's confession was voluntary and not caused by misinformation regarding possible sentences due to the presence of three factors. These factors included that (1) the officers returned to previous themes between the discussion of possible penalties and the defendant's confession, (2) the defendant indicated a knowledge that he could receive life imprisonment for the crime both before and after his confession, and (3) the confession occurred after an officer indicated that he did not know what sentence would be imposed.

 

... As in Thomas, Turner's confession did not follow the discussion in which the officers misrepresented that a lesser sentence would be imposed for felony murder. Rather, his confession was immediately preceded by the officers' return to the prior theme of Turner not being a bad, evil person; Krause's exhortation to "do the right thing"; and the colloquy regarding Turner's belief in God and the fate of his soul. Thus, the dialog immediately preceding Turner's confession supports the conclusion that his confession was primarily motivated by remorse and a desire to do the right thing—not to receive a lesser sentence.

 

As to the second factor we identified in Thomas, Turner indicated both before and after his confession that he was aware he could receive a sentence of life imprisonment. Before Turner confessed at the parole office, he stated, "Man, I'm going to get life for this shit." And after he confessed and was transferred to the police department, Turner stated to Coleman, "I'm about to get like, life." Thus, this factor indicates that Turner did not believe his confession precluded him from receiving life imprisonment.

 

Finally, like the defendant in Thomas, Turner confessed after officers stated that they did not know what sentence would be imposed. In response to Turner's statement, "I'm going to get a hundred years," Ficenec replied, "I can't tell you what the potential penalty could be. I mean I'm not going to bullshit you. Could you potentially get life? Is that a possibility? I mean, I'm not a judge, I'm not a prosecutor." And during the colloquy immediately preceding Turner's confession, Krause stated, "I don't know, okay?" in response to Turner's assertion that he "might be in jail for a long-ass time." Thus, although they incorrectly indicated that felony murder would receive a lesser sentence, the officers made no representations as to what sentence Turner would receive if convicted. This factor supports the conclusion that Turner's confession was not motivated by a belief that he would receive a particular sentence.


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(Accident versus intentional act was a "red herring" but not coercive)

In Walker v. Davis (January 2014) the US District Court, E.D. California, upheld the lower courts finding that the defendant's confession was not coerced by the investigators.

"Petitioner argues that the criminal justice system naivete of her client, when juxtaposed with the skill and persistence the interrogators utilized in questioning over a three day period, made for a due process violation, i.e., an involuntary number of damaging admissions.

Defendant's argument centers on representations from the detectives during the interviews on October 23 and 24. On October 23, Detective Tyndale informed defendant that she failed the polygraph examination, and he was having a hard time with whether she intentionally caused the child's death. He told her that people would forgive a mistake, but if someone made a mistake and was not honest about it, "people aren't as forgiving." He also said: "I don't think you're someone who would intentionally kill a child.... [P] ... [P] But if there was something that happened that was an accident, ... [P] ... [P] that's what you need to tell me. 'Cause otherwise the detective[']s gonna think you did do something on purpose."

Later, Detective Tyndale told defendant he would like to design a polygraph test she could pass, and he would have to explain to Detective Jason why she did not pass the polygraph. Detective Tyndale repeatedly asked defendant if the child's death was an accident, and continued: "When you tell me what it was, that's how I'm gonna design the polygraph test.... [P] ... [P] Because if it's an accident, that's what people understand. Especially when you're sorry for it. When you don't tell the truth, people don't believe you're sorry."

Detective Tyndale continued this line of questioning, assuring defendant he believed the killing was accidental, and telling her: "if you tell me the truth, I promise you're gonna pass the test. If it was an accident, I can show that. But you gotta be honest with me about it." He repeatedly promised defendant that if she told the truth, he would develop a test she could pass. He also told defendant, "You know, what kind of person would kill a small child on purpose? Are you that kind of person?"

Detective Tyndale then told defendant he knew she was "worried" and "scared" as some day "12 people sitting in a jury" would be looking at her, wondering whether she did it on purpose or it was an accident. He reiterated that it would be important for him to "walk out of here and be able to go up to Detective Jason and say, she's telling me the truth? She did it, but she didn't do it on purpose. It was an accident." As the interview wound down, he told defendant she took on more children than she could handle, and "I can help you show that it was an accident." By the end of the interview, defendant admitted she accidentally killed the child.

The Court of Appeal opinion, accurate as it is, nevertheless does not reflect the persistency of the questioning. The first two days of the interviews by Detective Jason were plodding, polite and persistent. Petitioner was asked again and again to describe the circumstances which led to the infant's death. The tireless questioning led to petitioner being caught in inconsistencies/absurdities, e.g., she administered CPR at the time when she found the infant dead in the middle of the night, and later, after she "panicked," several hours later, when she repeated CPR on a known lifeless body in the process of a conversation with a 911 dispatcher. After a polygraph was administered on October 23, Detective Tyndale attempted to force the issue. This interview on October 23, and that of detective Jason on October 24, 2007, was of a more aggressive character, although at all times, the interrogation was civil. In the latter interviews, if the police detectives told petitioner she was not telling the truth regarding the causation of the death once, they told her 100 times. The detectives were not going to accept any answer by petitioner that she did not take the actions which led to the death. Similarly, the numerous statements to petitioner stressing the different possible outcomes depending on whether "it was an accident" or "purposeful," was a red herring in that Cal.Penal Code 273ab only required purposeful actions of petitioner in causing injury, which resulted in death. The prosecution would not have to prove that petitioner intended the death of the infant by her actions. And, the police knew at the time that the injuries to the infant were incompatible with an accident. Many times petitioner was coaxed to be honest, and that the truth would make her feel better. She was in fact told on occasion that she was being honest, but the questioning continued with the clear indication that she was not. She was also confronted numerous times with the alleged falsity of her polygraph exam, often coupled with the "accident-purposeful" dichotomy, i.e., people would understand if the death was an accident.

Moreover, petitioner's unsupported-in-degree by the record, "naivete" assertion is not the same as the "critical" factor of Doody's juvenile status, although the undersigned recognizes that Doody was almost an adult at the time of his interrogation. Many persons who are interrogated by the police are being questioned for the first time; these persons may not have developed a skill set of "admission avoidance." But something more than unfamiliarity with police techniques is necessary before persistent questioning will be found to have overborne the will of the person being questioned. It appears to the undersigned that petitioner believed she could talk her way out of her problems; many people make that mistake as the interrogators are politely weaving the web ever tighter on the person questioned. Good interrogation technique should not be confused with undue pressure. As recounted above, petitioner was permitted to go home after the first and second day of questioning to recover and reflect on the day's interrogation.

In sum, the Court of Appeals' determination that petitioner's confession was not involuntary cannot be termed unreasonable as that term is defined in AEDPA.

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(Interrogator's reference to mitigating circumstances, including the fact that the shooting may have been an "accident" or from a "fit of rage" "fall far short of being promises of lenient treatment in exchange for cooperation")

In People v. Carrillo-Garcia (2012) the Court of Appeal, Third District, California rejected the defendant's claim that his confession was coerced by the police through implied promises of leniency and implied threats "that his failure to cooperate would work against him." The trial court found the statements were voluntary and denied the motion to suppress. From their opinion the Court of Appeal stated:

"Defendant, who maintains he was particularly susceptible to influence because he was only 18 years old and naive about the criminal justice system, contends the police coerced his confession with repeated promises of leniency. Not so. As aptly pointed out by the Attorney General, two Supreme Court cases with remarkably similar interrogations found the confessions were voluntary.

In People v. Holloway (2004) 33 Cal.4th 96, the interrogator suggested that the killings might have been accidental or resulted from a fit of rage and that these circumstances could " 'make[ ] a lot of difference.' " ... Similarly, the sergeant here also suggested to defendant that mitigating circumstances could "make[ ] a difference." Thus, he reinforced the message that defendant might not have intended to kill, but that his emotions got out of control. Here, as in Holloway, the interrogator's suggestions "fall far short of being promises of lenient treatment in exchange for cooperation. The detectives did not represent that they, the prosecutor or the court would grant defendant any particular benefit if he told them how the killings happened." ... Rather, the interrogators' admonitions did no more than tell defendant the benefit that might " ' "flow[ ] naturally from a truthful and honest course of conduct" ' [citation]...." .

The interrogator in People v. Carrington (2009) 47 Cal.4th 145 ( Carrington ) employed the same techniques. He too tried to convince his suspect that it would behoove her to explain any mitigating circumstances and suggested, " 'What if she scared you? She confronted you. Or maybe there was someone else with you.' " ... Like the sergeant, the interrogator in Carrington encouraged the suspect to tell the truth and take the weight off her shoulders... And he promised that if the suspect cooperated during the interview, the officers " 'would try to explain this whole thing with, with Los Altos P.D. as [best] we can.' "

None of these exhortations crossed the impermissible line and rendered the police conduct coercive. The officer's statement that "he would help defendant in explaining 'this whole thing' to the Los Altos police did not constitute a promise of leniency...." ... Nor did the assurances that the police were attempting to understand the defendant's motivation coerce her to confess; rather "they merely suggested possible explanations of the events and offered defendant an opportunity to provide the details of the crime."

The sergeant used the very same interrogation techniques in trying to persuade defendant to tell the truth. Neither his repeated references to the district attorney, his attempts to get a better understanding of defendant's motives and to extract mitigating circumstances, nor his encouragement to defendant to lighten his load constituted coercion, even when considering defendant's age and lack of experience with the criminal justice system. Although defendant, to his credit, had no criminal record and was a very young adult, there is nothing in the record to suggest he was particularly vulnerable, did not understand English, or was mentally or emotionally compromised. Given the utter lack of coercive police interrogation and no evidence defendant's statements were not voluntary, we conclude the trial court properly admitted the statements he made during his interrogation." 
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("If for some reason you went in [the restaurant] to do a robbery and somehow the gun went off [accident]" was not a statement that suggested leniency)

In Commonwealth v. Johnson (2012) the Supreme Judicial Court of Massachusetts upheld the admissibility of the defendant's confession. On appeal, the defendant had argued that his statements were not made voluntarily, claiming that at the time of the interview, he was young, inexperienced, terrified, and likely intoxicated, and that, during the interview, Detective Black lied about forensic evidence implicating him and falsely suggested that confessing would be advantageous. From the court's opinion:

"Similarly, there is scant justification for the defendant's current contention that he was "terrified," such that his statements were not made voluntarily. To be sure, Black noted that the defendant briefly put his head in his hands and, at times, seemed "nervous" and "scared." On the other hand, the defendant also appeared lucid, coherent, and articulate throughout the questioning, and Black told him, in a nonaggressive manner, "I'm not trying to scare you and I hope you understand that. I'm trying to explain to you how serious this is." The defendant's emotional state is wholly consistent with the situation in which he found himself and the gravity of the charges he faced; it did not render him so emotionally unstable or irrational that he could not act voluntarily, nor was it the product of any alleged police coercion.

Relatedly, Black also never improperly implied that confessing would benefit the defendant. Specifically, Black told the defendant: "This is kind of a bad situation"; "If for some reason you went in [the restaurant] to do a robbery and somehow the gun went off, I don't know how, today is the day to tell me that"; and "I want to give you the opportunity today to get out in front of this." These statements fall within the general rule that "[a]n officer may suggest broadly that it would be 'better' for a suspect to tell the truth, ... or may state in general terms that cooperation has been considered favorably by the courts in the past."  
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(Rationalizing a defendant's actions (self-defense/accident) in such a way that he "might hope that he would not be charged with murder" did not render the confession inadmissible)

In State v. Fundaro (2012) the Court of Appeals of Michigan upheld the trial court's denial of Fundaro's motion to suppress his statements. "Fundaro explained that the officers kept telling him that it sounded like it was an accident or self-defense and that it would be better for him if he would just tell them what happened. He stated that he would never have admitted to committing the crime had he known that he would be facing life in prison.

At the hearing, Wittebort testified that he and Troy tried to get Fundaro to tell them about the stabbing by throwing out "theories" or "scenarios" that might help Fundaro rationalize what happened:

It's just another, it's another theory.... I mean, the bottom line is we're trying to get to the bottom of what happened. So, throw a bunch of scenarios ... and see which ... appeals to him. So, I mean, it's just another rationalization that was tossed at Mr. Fundaro.

Although they suggested theories and scenarios under which Fundaro might not be guilty of murder, Wittebort testified that he never promised Fundaro leniency and that he did not hear anyone else promise him leniency. And Fundaro testified that the officers talked about leniency, but did not specifically promise him anything. Indeed, he acknowledged that Troy told him that he could not promise him anything. Fundaro suggests that he only confessed because the officers convinced him that he would not be charged with murder, but the officers used these types of themes from the very beginning of the interview and Fundaro had no trouble denying involvement throughout the majority of the questioning. Moreover, during the interview, and despite all the allegedly misleading statements, Fundaro repeatedly indicated that he understood that he would likely go to prison; he even told Mistretta: " 'I killed a guy and I went in there to rob the joint. I'm still going to go to prison?' "

 

.... Although the officers might have helped him rationalize his actions in such a way that he might hope that he would not be charged with murder, the evidence does not demonstrate that these tactics so affected Fundaro that his will was overborne or his capacity for self-determination was critically impaired."   Click here for the complete decision.

           

 

(Court rules that accident scenario is not coercive)

In People v. Batiste (2011), the Court of Appeal, 1st District, Div. 3, California, the defendant claimed that his confession was coerced because it was the product of deception or implied promises of leniency by the officers. From the court's opinion:

"Batiste argued in the trial court that the officers made an implied promise of leniency when they suggested he might have acted in self-defense. That argument lacked merit. Here, as in People v.. Carrington (2009) 47 Cal.4th 145, 171, "suggestions that the ... homicide might have been an accident, a self-defensive reaction, or the product of fear, were not coercive; they merely suggested possible explanations of the events and offered defendant an opportunity to provide the details of the crime. This tactic is permissible. [Citation.] Moreover, any benefit to defendant that reasonably could be inferred from the substance of [the officer's] remarks was ' " 'merely that which flows naturally from a truthful and honest course of conduct,' " ' because the particular circumstances of a homicide can reduce the degree of culpability, and thus minimize the gravity of the homicide or constitute mitigating factors in the ultimate decision as to the appropriate penalty. [Citation]."  
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(Suggesting the homicide was an accident or self-defense was not coercive)

In People v. Carrington, (July 2009) the Supreme Court of California upheld the confession that the defendant killed three people and examined each interrogation to assess the defendant's claims that she confessed due to promises of leniency.

In their opinion the Supreme court stated that the "Defendant also contends that Detective Lindsay's assurances that the police merely were attempting to understand defendant's motivation in committing the crimes impermissibly coerced her to confess. To the contrary, Detective Lindsay's suggestions that the Gleason homicide might have been an accident, a self-defensive reaction, or the product of fear, were not coercive; they merely suggested possible explanations of the events and offered defendant an opportunity to provide the details of the crime. This tactic is permissible."

They also stated that "The statements made by the officers did not imply that by cooperating and relating what actually happened, defendant might not be charged with, prosecuted for, or convicted of the murder of Esparza. The interviewing officers did not suggest they could influence the decisions of the district attorney, but simply informed defendant that full cooperation might be beneficial in an unspecified way. Indeed, defendant understood that punishment decisions were not within the control of the police officers. As noted above, she said it "just depends on the judge and DA and how are they going to prosecute it." Under these circumstances, Detective Sherman's statement that he would inform the district attorney that defendant fully cooperated with the police investigation did not constitute a promise of leniency and should not be viewed as a motivating factor in defendant's decision to confess."   
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(Court rejects Dr. Leo testimony that suggesting accident increases the risk of a false confession)

           
In People v. Wroten (2007) Dr. Richard Leo testified that the interrogators suggested to the defendant "that the offense was accidental, thereby minimizing the suspect's perception of the consequences of an admission and implying that an accidental killing might result in leniency. This technique can increase the risk of a false confession." The court rejected this position and the jury convicted the defendant of first degree murder. In their review of the case the Court of Appeal, 2nd District, Division 2, California stated "There were also no promises of leniency made to appellant. The statements he points to as making such promises are at worst ambiguous and, in any event, did not pervade the interrogation. Detective Lait's statement that they were giving appellant a "million dollar opportunity" to explain whether the shooting was intentional or accidental contains no promise of benefit. While the detective stated that knowing whether the murder was intentional or accidental might make a difference in "how we proceed," he did not say it would benefit appellant or that it would make a difference as to whether they would proceed. Furthermore, after Detective Lait made those statements, appellant continued to deny involvement in the Mosley shooting....Those statements did not overbear his will to resist and proximately cause him to confess. Detective Garrido's statement that they wanted to get appellant "cleared up" was little more than encouragement to tell the truth."
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(Court upholds admissibility of confession in which detectives focused on difference between accidental and intentional killing)

 

In Bramley v. State (2006) the Indiana Court of Appeals upheld the admissibility of the defendant's confession. In their opinion the court stated:

"The voluntariness of a statement is determined by examining the totality of the circumstances surrounding the interrogation.... Relevant factors include the length, location, and continuity of the interrogation, and the maturity, education, physical condition, and mental health of the defendant. Id. In making its determination, the trial court weighs the evidence to ensure that a confession was not obtained "through inducement, violence, threats or other improper influences so as to overcome the free will of the accused." ....  A confession is inadmissible if it is obtained by promises of mitigation or immunity, but vague and indefinite statements by the police that it would be in a defendant's best interest if he cooperated do not render a subsequent confession inadmissible.... Where a promise of leniency stems from a defendant's specific request for leniency as a precondition for making a statement, the voluntariness of the statement is not induced by misconduct.

Bramley directs us to three statements that the detectives made that he contends amount to promises of leniency and threats and render his confession involuntary. First, Bramley directs us to an analogy Detective Jowitt used while transporting him to the Hamilton Count Jail. Detective Jowitt told Bramley that there were three suspects and only one apple and that "[o]ne person generally gets to eat the whole apple." ... Detective Jowitt testified at trial that the apple in the analogy represented a plea deal a defendant could get if he cooperated with the police before the other suspects did.


Bramley next directs us a statement Detective Jowitt made during the interrogation:

And you don't want other people giving accounts of Michael Shane Bramley because you don't know what they're saying and you don't know ... like I said you don't know the spin that they're putting on it. The spin can be real important. Ok? 'Cause that can be the difference between Michael Shane Bramley is ... a cold hearted ruthless, dangerous, psychopathic, you know yada, yada, yada, or just hey, something happened up there and it didn't really go down like it was supposed to and there was ... a problem or there was a mistake or there was an accident or it didn't happen quite the way it maybe appeared just by looking at the surface facts of it, okay?

Finally, Bramley highlights statements that the detectives made that he claims implied that he would receive a lesser sentence if he testified that Moody's death was an accident. Typical examples of the detectives' statements are: "I sure wouldn't want to be put in the situation where someone else is putting stuff down on me that wasn't quite the way it happened," id. at 363, and "[the difference between intentional murder and an accident] is just different. Worse thing in the world [is intentional murder]," id . at 377. The detectives focused on the differences between an accidental and an intentional killing and emphasized the benefits that a suspect could reap if he tells his side of the story because the other suspects cannot adversely fill in the "gray parts" of the crime:

Here, there were two other suspects in Moody's murder and Detective Jowitt tried to explain to Bramley, by using the apple analogy and the "grey parts" comment, that the other two suspects could wrongly implicate Bramley if he did not tell the truth about his role in the crime. While Bramley may have lost the prisoner's dilemma game, Detective Jowitt's comments do not rise to the level of specific promises of leniency or threats that have previously been held to render a confession involuntary.   
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Deception


(Employing deceptive practices to elicit a confession are not coercive)

In US v Hunter (February 2015) the US District Court, N.D. Georgia, upheld the lower court's decision not to suppress the defendant's incriminating statements. From the court's opinion:

Hunter argues that the statements he made to the agents on May 16, 2013, were involuntary, and are therefore inadmissible, because: (1) he "believed that the agents came to his residence ... to help Anna, [ ] who was in danger," but he "did not understand that the agents were looking for child pornography,; (2) he did "not believe he had any choice" to make a statement "because of his prior experience with law enforcement," [; and (3) the agents never advised him that he had a right to counsel or that his statements could be used against him. Whether a statement was voluntarily given must be examined in light of the totality of the circumstances.... "This totality of the circumstances test directs the Court ultimately to determine whether a defendant's statement was the product of 'an essentially free and unconstrained choice.' ... "Among the factors the Court must consider are the defendant's intelligence, the length of his detention, the nature of the interrogation, the use of any physical force against him, or the use of any promises or inducements by police." Id. (citations omitted).

The focus of the voluntariness inquiry is whether the defendant was coerced by the government into making the statement, so "the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception." ... Thus, "[t]hose cases where courts have found confessions to be involuntary 'have contained a substantial element of coercive police conduct.' "Sufficiently coercive conduct normally involves subjecting the accused to an exhaustingly long interrogation, the application of physical force or the threat to do so, or the making of a promise that induces a confession."
Another "factor to consider among the totality of the circumstances in determining voluntariness' " is whether the police employ deceptive tactics to elicit a confession. However, " '[c]ourts have been reluctant to deem trickery by the police a basis for excluding a confession on the ground that the tricks made the confession coerced and thus involuntary.' Rather, courts have held that "trickery or deceit is only prohibited to the extent it deprives the suspect of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them." Thus, "[t]he kinds of deception that are generally deemed to trigger suppression are lies about a defendant's legal rights ( i.e ., 'you must answer our questions'), false promises ( i.e., 'whatever you say will be just between us'), or threats ( i.e., 'if you don't talk, you won't see your family for a very long time') ."

Additionally, the law in the Eleventh Circuit "is clear, that the police's use of a trick alone will not render a confession involuntary," unless there are "other aggravating circumstances" beyond the mere use of deceptive tactics, ..... Indeed, "[c]onfessions are not generally rendered inadmissible merely because they are obtained by fraud, deception, or trickery practiced upon the accused, provided the means employed are not calculated to procure an untrue statement and the confession is otherwise freely and voluntarily made."

Under the totality of the circumstances in this case, the Court concludes that Hunter's statements to the agents on May 16, 2013, were made voluntarily.

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(Confession voluntariness – lying about the evidence)

 

In Jefferson v. State (July 2014) the Supreme Court of Nevada upheld the lower court's decision to admit the defendant's confession.  In this case the defendant argued that

" the district court erred in denying his motion to suppress the statements he made to law enforcement. He argues that his confession was involuntary because he was subjected to repeated and prolonged questioning, as well as deceptive interrogation techniques.  From the court's opinion:

 

"We conclude that substantial evidence supports the district court's conclusion that Jefferson's confession was voluntary. Jefferson, an adult, does not claim that he misunderstood what was happening; he responded cogently to the detectives' questions; his interrogation began with an explanation of his Miranda rights; it took place at a reasonable time (9:00 p.m.) and lasted only 45 minutes; and, while one of his hands was handcuffed to a bar, he was free to leave any time for water or to use the restroom.

 

Additionally, Jefferson's argument that his confession was rendered involuntary by the detectives' deceptive interrogation techniques is unavailing. Jefferson argues that the detectives misrepresented DNA evidence by exaggerating what DNA evidence could reveal to them and the time frame in which they would learn the information. However, "an officer's lie about the strength of the evidence against the defendant is, in itself, insufficient to make the confession involuntary." ... The question is whether the tactics " 'interject[ed] the type of extrinsic considerations that would overcome [Jefferson's] will by distorting an otherwise rational choice of whether to confess or remain silent.' ... In this case, such tactics would not likely overcome Jefferson's will because, if Jefferson was truly innocent, he would not be concerned that DNA evidence would implicate him. Rather, he would know that it would exonerate him. Thus, nothing about the detectives' tactics appears coercive or likely to produce a false confession.

 

Jefferson's arguments that the detectives impermissibly implied that the prosecutor would be informed that he refused to cooperate, and threatened to take away his children are equally unavailing. The detectives indicated that if the DNA showed something different than what Jefferson had told them, then the DA would be aware of the discrepancy, which would likely be bad for Jefferson. But that is not the equivalent of a threat to inform the DA that Jefferson was not cooperating. Likewise, the detectives told Jefferson that, given the allegations against him, he might not be able to be around his children for a while. However, this statement was only made in response to Jefferson's own questions regarding his children. This was not a coercive tactic to get Jefferson to confess, but merely a true statement of the current situation."

 

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("the law permits the police to pressure and cajole, conceal material facts, and actively mislead")

In US v. Graham (June 2014) the US District Court, N.D. Georgia, upheld the admissibility of the defendant's incriminating statements, and carefully examined the issue of police deception during an interrogation.  The District Court stated the following in their opinion:

"The focus of the voluntariness inquiry is whether the defendant was coerced by the government into making the statement, so "the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception." ... Thus, "[t]hose cases where courts have found confessions to be involuntary 'have contained a substantial element of coercive police conduct.'...  "Sufficiently coercive conduct normally involves subjecting the accused to an exhaustingly long interrogation, the application of physical force or the threat to do so, or the making of a promise that induces a confession."

 

... Whether the police employ deceptive tactics to elicit a confession is "one factor to consider among the totality of the circumstances in determining voluntariness." ... However, "[c]ourts have been reluctant to deem trickery by the police a basis for excluding a confession on the ground that the tricks made the confession coerced and thus involuntary." ... Rather, courts have held that "trickery or deceit is only prohibited to the extent it deprives the suspect of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them." ... Thus, "[t]he kinds of deception that are generally deemed to trigger suppression are lies about a defendant's legal rights ( i.e ., 'you must answer our questions'), false promises ( i.e., 'whatever you say will be just between us'), or threats ( i.e., 'if you don't talk, you won't see your family for a very long time') ."

 

... Although Graham asserts that the agents' use of deception in this case "[wa]s itself aggravated and standing alone is sufficient basis to hold that [his] statements ... were the product of coercion," [Doc. 41 at 23], the law in the Eleventh Circuit "is clear, that the police's use of a trick alone will not render a confession involuntary," unless there are "other aggravating circumstances" beyond the mere use of deceptive tactics, ... Indeed, "[c]onfessions are not generally rendered inadmissible merely because they are obtained by fraud, deception, or trickery practiced upon the accused, provided the means employed are not calculated to procure an untrue statement and the confession is otherwise freely and voluntarily made."

 

Graham cites to a number of cases in which statements elicited from a defendant in response to police deception were found involuntary,....  but these cases all involve significant aggravating circumstances not present here, see, e.g., Lynnum, 372 U.S. at 534 (mother's confession held involuntary where "made only after the police had told her that state financial aid for her infant children would be cut off, and her children taken from her, if she did not 'cooperate' "); Spano, 360 U.S. at 321–22 (finding confession involuntary where defendant was foreign-born, had only one-half year of high school education and a history of emotional instability, and was subjected to prolonged late-night questioning that included repeated denials by police of the request to consult with attorney and the threat that if he remained silent his friend on the police force would lose his job); Irons, 646 F.Supp.2d at 971–72 (confession involuntary where police sought to "exploit [defendant's] friendship" with a female officer, in whom he also had a romantic interest, by falsely telling him that the officer had been arrested and that he "should confess in order to protect her from prosecution"); but see United States v. Charlton, 565 F.2d 86, 89 (6th Cir.1977) (confession voluntary notwithstanding police threats to arrest son absent cooperation)....  Indeed, the cases cited by Graham illustrate nothing short of "extreme forms of deception or chicanery," United States v. Jacques, 744 F.3d 804, 812 (1st Cir.2014) (citations and internal marks omitted), which are far removed from the ruse used here. Moreover, the defendants in those cases were given the impression by police that they could avert some impending harm that would otherwise befall their family or friends, if only they would "cooperate" with the investigation. In this way, they were essentially confronted with the dilemma of either cooperating with the police or else allowing their loved ones to suffer as a result of their own recalcitrance, which "not only impaired [the defendants'] free choice, but also cast doubt upon the reliability of the resulting confession," Holland, 963 F.2d at 1051. Here, in contrast, there is not the slightest hint that the agents rendered Graham's confession unreliable by confronting him with a similar ultimatum that directly implicated any close personal or familial relations. And if Graham was actually deceived by the ruse and agreed to speak with the agents in order to help them find the missing girl, as he appears to allege, see [Doc. 41 at 5, 24–25], this would not make his statements less reliable, since it would have been counter-productive for him to provide the agents with false information that would only impede their efforts to locate her.

In brief, "the effect of psychological pressure or deception on the voluntariness of a statement depends on the particular circumstances in each case,"...  and the circumstances in this case simply do not show that the agents' misrepresentation about a missing girl, unaccompanied by any aggravating factors, rose to the level of "coercive police activity,"...  that so overpowered Graham's will or "critically impaired" his "capacity for self-determination," as to render his statements involuntary, ... Indeed, "[f]ar from making the police a fiduciary of the suspect, the law permits the police to pressure and cajole, conceal material facts, and actively mislead—all up to limits not exceeded here[.]"... Accordingly, the ruse employed by Agents Harris and Westhall "did not amount to coercion in violation of [Graham's] Fifth Amendment rights," ... and the totality of the evidence in this case demonstrates that Graham's statements at the interview of May 31, 2012, were made voluntarily.

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(Lying about DNA evidence did not make the confession inadmissible)

In State v. Smith (February 2014) the Court of Appeals of Nebraska found that lying to a suspect about DNA evidence did not render the confession inadmissible. From the court's opinion:

"Smith asserts that he repeatedly denied the accusations until the detective "told him the police had his DNA evidence on [E.H.'s] clothes," and this made "Smith believe that the police had scientific proof that he [was] guilty of the charges." Smith claims that the detective's tactics were employed to elicit an incriminating statement and that "[a]lthough providing false information to a suspect has been deemed normal police protocol, taken in the totality of the circumstances it was a direct violation of ... Smith's constitutional rights."

It is fundamental that a statement must be suppressed if it is obtained by offensive police practices.... However, mere deception will not render a statement involuntary or unreliable; the test for determining the admissibility of a statement obtained by police deception is whether that deception produced a false or untrustworthy confession or statement. Id. If a benefit is offered in exchange for testimony, and the offer is definite, then a confession is involuntary and must be suppressed...

Nothing in this record indicates that Smith's statements made to Kavars or the letter written to E.H. were false or untrustworthy, nor is there any evidence that Kavars made any inappropriate offers to Smith in exchange for a statement. Kavars testified that the OPD has a protocol for conducting suspect interviews, which protocol includes providing false information to a suspect as a means of eliciting statements. Kavars explained that in this case, he had clothing that belonged to E.H. but that it did not have any DNA from Smith, contrary to what he suggested to Smith during the interview. Upon cross-examination, Kavars acknowledged that he obtained clothing from E.H. "[t]o lead the suspect to believe I had evidence I didn't have," and he agreed that the clothing was "basically used as a prop." Kavars confirmed that during his interview with Smith, he pulled those clothes out of an envelope and told Smith his DNA was on the clothing, and told him that on more than one occasion. He agreed it was a lie, but was a tactic he used. Kavars also "led [Smith] to believe that everything that happened with the victim at that residence was okay with her when she told me in the interview it wasn't."

On redirect, however, he confirmed that this was an acceptable method of interviewing and that further, he did not force Smith "in any way to admit that he had rubbed his penis on [E.H.'s] body." He further confirmed that he did not "force him in any way to admit that he had, in fact, pulled his pants down and touched the victim."

Kavars' testimony is supported by the recordings of the interview......

The tactics used by the police in this case, while deceptive, cannot be characterized as such coercion that it caused Smith's "will to be easily overborne."
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(Lying about evidence such as minimizing the victim's injury, and telling the defendant gun shot residue and eyewitnesses showed that he was the shooter, would not cause an innocent person to confess)

In People v. Boner (2012) the Court of Appeal, Third District, California upheld the admissibility of the defendant's confession. The court heavily relied upon the DVD of the interrogation to assess the defendant's claim that his statements were involuntary because the police the lied to him about the victim's physical condition. From their opinion the court stated that:

"[T]elling a suspect falsehoods regarding the status of the case against him is widely accepted." ... "Where the deception is not of a type reasonably likely to procure an untrue statement, a finding of involuntariness is unwarranted." .....

The detectives said the gunshot residue test and eyewitness statements showed defendant was the shooter, and both Antwaine and Moody had told the detectives everything. Although apparently these statements were not true, we do not find that any of these statements, nor all of them together, would tend to cause an innocent person to confess.

Defendant contends that minimizing the victim's injury, as well as the statements that defendant "can help [himself] out" and "can dig ... so big of a hole that we can't help you out," amounted to an improper offer of lenity if defendant confessed. We are not persuaded by this argument.

Here, the detectives did not state or imply that if defendant admitted he shot the victim he would get lenient treatment because the victim had not been badly hurt. Instead, they employed a technique of minimizing the consequences of defendant's actions. We do not see that such conduct is likely to make an innocent person falsely confess.


In this case defendant knew he had shot someone during an armed robbery, and knew he was being questioned about that incident. The fact he was told the victim only needed a band-aid was not the sort of deception that would tend to cause an innocent person to admit to the shooting." 
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(Incriminating statements admissible even though police deceived defendant about what offenses they were investigating)

In US v. Whitfield (2012) the U.S. Court of Appeals, Fourth Circuit upheld the lower court's decision not to suppress incriminating statements even though the investigating police "deceived him [defendant] about the offenses they were investigating." From the Appeals Court opinion:


"Whitfield's chief complaint is that the police officers deceived him about the offenses they were investigating, particularly those involving the forced accompaniment and death of Mrs. Parnell. Nevertheless, Whitfield concedes that the officers "had no duty to advise [him] of the identity of the specific offense under investigation" or "inform [him] of every potential theory of liability related to [his] conduct."... Although Detectives Sampson and Sumner led Whitfield to believe that their only interest at the start of the interview was the Belmont home break-ins, Whitfield obviously knew that his interactions with Mrs. Parnell were the result of his breaking and entering of her home. Whitfield persists, however, that he could not have rationally assessed the consequence of confessing to the break-ins because Sergeant Reynolds had indicated that Mrs. Parnell was alive and had "ID'd" Whitfield.... Because of Reynolds' misrepresentations, Whitfield contends that he mistakenly believed that he was being investigated for only a minor crime.

As the Supreme Court has explained, "[p]loys to mislead a suspect or lull him into a false sense of security that do not rise to the level of compulsion or coercion to speak are not within Miranda's concerns." Illinois v. Perkins, 496 U.S. 292, 297, 110 S.Ct. 2394, 110 L.Ed.2d 243 (1990).

As a result, the totality of the circumstances support the district court's denial of suppression.  
Click here for the complete decision.     

 

(Telling the suspect that the victim had accused him of a more serious crime is not a coercive tactic - even though the victim had not made such an assertion)

In People v. Jaeger (2012) the Supreme Court, Appellate Division, Third Dept., New York, the court found that they were not "persuaded by defendant's contention that his statements were the product of coercive and deceptive interrogation practices by the police. "Police may generally engage in deception while investigating a crime, with suppression required only where 'the deception was so fundamentally unfair as to deny due process or [where] a promise or threat was made that could induce a false confession' "......On more than one occasion during the interview, Stack suggested to defendant that victim A accused him of having intercourse with her despite the victim neither stating nor implying that any intercourse had occurred. However, as the tactic employed by Stack was not accompanied by any threats or promises that might induce a false confession and was not fundamentally unfair, the deception did not render defendant's confessions involuntary." 
Click here for the complete opinion

           

 

(Lying about evidence (number of witnesses that identified suspect) did not render confession inadmissible)

In Arrue v. Hedgpeth (2010) the US District Court, C.D. California upheld the lower court's decision to admit the defendant's incriminating statements. In this case the defendant claimed that the "police used coercive tactics that overcame his will, leading to his confession. Petitioner argues that the police lied to him when they told him that he had been identified as one of the perpetrators and when they offered him leniency by telling him that if he confessed, he would avoid a special circumstances murder conviction and would help his family. Petitioner says the officers also threatened him by telling him he was "fucked" because he faced a special circumstances conviction, which meant that he would be in prison for life if he did not confess. The California Court of Appeal denied Petitioner's claim, finding that the totality of the circumstances showed that the confession was voluntary."

The District Court further stated that, "...the state court found that, although police did use language such as "fucked" to describe Petitioner's situation, they did so only in describing the facts in colorful language, and that police made no threats or promises which might have overborne Petitioner's will.....The only circumstance the court found could have suggested an involuntary confession was the fact that police lied to Petitioner about being identified as the shooter by his three confederates. But, the record shows that police did not entirely invent this statement; at trial, both attorneys agreed that one person had identified Petitioner as the shooter, but that it was untrue that three people had identified him. In any event, the state court found that police deception about whether Petitioner had been identified as the shooter did not render the confession involuntary.
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(Lying to a suspect about the extent of inculpatory evidence against him does not render a confession inadmissible, and telling a suspect that his cooperation would be to his benefit is not coercive)

In State v. Perez (October 2010) the Court of Appeals of Wisconsin upheld the admissibility of the defendant's incriminating statements even though the police lied to him about the extent of the inculpatory evidence, and even though the interrogator told the defendant that his cooperation would be to his benefit.


On the issue of misrepresenting evidence the court pointed out that, "Of the numerous varieties of police trickery, however, a lie that relates to a suspect's connection to the crime is the least likely to render a confession involuntary. Such misrepresentations, of course, may cause a suspect to confess, but causation alone does not constitute coercion; if it did, all confessions following interrogations would be involuntary because "it can almost always be said that the interrogation caused the confession." Thus, the issue is not causation, but the degree of improper coercion.... Inflating evidence of [the defendant's] guilt interfered little, if at all, with his "free and deliberate choice" of whether to confess, for it did not lead him to consider anything beyond his own beliefs regarding his actual guilt or innocence, his moral sense of right and wrong, and his judgment regarding the likelihood that the police had garnered enough valid evidence linking him to the crime. In other words, the deception did not interject the type of extrinsic considerations that would overcome [the defendant's] will by distorting an otherwise rational choice of whether to confess or remain silent."


The court further stated, "DuBois did not promise Perez leniency in exchange for his confession. "An officer telling a defendant that his cooperation would be to his benefit is not coercive conduct, at least so long as leniency is not promised. Similarly, coercive conduct does not occur when ... an officer, without promising leniency, tells a defendant that if he or she does not cooperate the prosecutor will look upon the case differently."
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(Court upholds confession in which investigators lied about the strength of their evidence during interrogation)

In Mata v. Martel, 2009, the United States District Court, N.D. California, upheld the confession which was the result of an interrogation in which the investigators " used two ruses". The investigator "told Mata that his saliva provided a DNA match with sperm found on the victim's underwear and that the victim's sister, Julissa, had seen Mata having sex with the victim. The detectives also made suggestions about what they thought happened. They encouraged Mata to tell the truth, told him that he wouldn't want to look like a liar if he went to court, called him a liar at certain points, and accused him of calling the victim a liar. .....They also told Mata that they didn't believe him, and that they believed he had raped the victim."

Furthermore, "Detective David Gonzalez suggested how he thought the sexual assault occurred: "Here's what I think happened, okay, I think that she's probably a very promiscuous girl ... I think that she was very attracted to you and liked you ... she started saying that, you know, she liked you ... and maybe wanted to do things with you ... you didn't intend, you know, you didn't intend to have sex with her ... but it just happened."
Click here for the complete decision.

           

 

(Falsely telling suspect he has been identified as the shooter is not coercive)

In People v. Rubio (2009) the Appellate Court of Illinois Second District upheld the admissibility of a confession the defendant claimed was the result of coercive police deception. From the Appellate Court opinion:

"In urging that his confession was involuntary, defendant emphasizes that the detectives misled him as to the strength of the evidence against him by insinuating that the shooting had been filmed and that several witnesses had identified him as the person who shot the victim or escaped the scene after the shooting. However, defendant correctly concedes that "police trickery, standing alone, does not invalidate a confession as a matter of law." Frazier v. Cupp, ("The fact that the police misrepresented [the evidence] is, while relevant, insufficient in our view to make this otherwise voluntary confession inadmissible"); ("A misrepresentation which prompts inculpatory statements is only one factor to be considered in determining the voluntariness of the resulting statements"). In Frazier, Kashney, and Martin, police or the prosecution falsely exaggerated the evidence against the defendants, and the defendants thereafter confessed their guilt. See Frazier, (defendant falsely told that his accomplice had confessed); Kashney, (prosecutor falsely told defendant that his fingerprints were found at the crime scene); (defendant falsely told that an accomplice had identified him as " 'the triggerman' "). The courts held the confessions to have been voluntary and admissible.

Defendant recognizes the above line of precedent and instead relies on another case, People v. Bowman, to support his argument that the police deception here rendered his confession involuntary. In Bowman, police enlisted the defendant's cell block mate to convince the defendant, who was "intensely fearful" of being returned to a particular correctional center in which he had spent four years, "that if [the defendant] [confessed], [he] would avoid a transfer to [the correctional center] and stay in the county jail long enough for [the cell block mate] to be released from jail, to return, and to assist in [the defendant's] escape." Bowman. The appellate court affirmed the trial court's judgment that the defendant's confession was involuntary; it concluded that police used deceptive interrogation tactics, calculated to take advantage of the defendant's intense fear of returning to the correctional center, as a means to overcome the defendant's free will.

We see a wide chasm between Frazier, Kashney, and Martin on one hand and Bowman on the other. In Frazier, Kashney, and Martin, the deception related to the ability to prove the defendants' involvement in the crimes; in Bowman, the police used deception to offer the defendant a provocation to confess extrinsic to the interrogation process. In an appeal of a habeas corpus proceeding in an Illinois case, the Seventh Circuit aptly described the difference between these two types of deception:

"Of the numerous varieties of police trickery * * *, a lie that relates to a suspect's connection to the crime is the least likely to render a confession involuntary. [Citations.] Such misrepresentations, of course, may cause a suspect to confess, but causation alone does not constitute coercion; if it did, all confessions following interrogations would be involuntary because 'it can almost always be said that the interrogation caused the confession.' [Citation.] Thus, the issue is not causation, but the degree of improper coercion * * *. Inflating evidence of [the defendant's] guilt interfered little, if at all with his 'free and deliberate choice' of whether to confess [citation], for it did not lead him to consider anything beyond his own beliefs regarding his actual guilt or innocence, his moral sense of right and wrong, and his judgment regarding the likelihood that the police had garnered enough valid evidence linking him to the crime. In other words, the deception did not interject the type of extrinsic considerations that would overcome [the defendant's] will by distorting an otherwise rational choice of whether to confess or remain silent."

We agree with the Seventh Circuit and conclude that the police deception here had little, if any, undue coercive effect."   
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(A fake polygraph test did not render involuntary the defendant's incriminating statement; a listing of other misrepresentations)

In People v. Mays (May 2009) the Court of Appeal, Third District, California found that "mock polygraph test administered to defendant after he requested a lie detector test during detective's questioning, and fake test results, did not render involuntary defendant's incriminating statement, after he received the fake test results.." From the court's decision:

Police deception during a custodial interrogation may but does not necessarily invalidate incriminating statements. A psychological ploy is prohibited only when, in light of all the circumstances, it is so coercive that it tends to result in a statement that is both involuntary and unreliable. [undercover law enforcement officer posing as fellow inmate was not required to give Miranda warnings to suspect.

As summarized in People v. Chutan: "Police trickery that occurs in the process of a criminal interrogation does not, by itself, render a confession involuntary and violate the state or federal due process clause. Why? Because subterfuge is not necessarily coercive in nature. And unless the police engage in conduct which coerces a suspect into confessing, no finding of involuntariness can be made.

"So long as a police officer's misrepresentations or omissions are not of a kind likely to produce a false confession, confessions prompted by deception are admissible in evidence. [Citations.] Police officers are thus at liberty to utilize deceptive stratagems to trick a guilty person into confessing. The cases from California and federal courts validating such tactics are legion. [officer falsely told the suspect his accomplice had been captured and confessed]; [officer implied he could prove more than he actually could]; [officers repeatedly lied, insisting they had evidence linking the suspect to a homicide]; [wounded suspect told he might die before he reached the hospital, so he should talk while he still had the chance]; [police falsely told suspect a gun residue test produced a positive result]; [officer told suspect his fingerprints had been found on the getaway car, although no prints had been obtained]; and [suspect falsely told he had been identified by an eyewitness]. [defendant's confession to child molestation was not rendered involuntary by officer's failure to reveal he was conducting a criminal investigation and not just asking questions regarding placement of the children.

People v. Smith, held it was not impermissibly coercive for a police officer to tell the defendant that a "Neutron Negligence Intelligence Test" (a sham) indicated he had recently fired a gun. Additionally, the sham did not elicit a full confession, but only incriminating statements.

People v. Farnam, held the defendant's confession to robbery and assault of hotel occupants was voluntary, despite the police having falsely informed the defendant that his fingerprints were found on the victim's wallet. In California, it has been held that if a defendant takes a lie detector test willingly, " 'neither the fact it was given nor the fact that the defendant was told by the test giver it revealed in his opinion that defendant was not telling the truth, inherently demonstrates coercion. [Citation.]' "

Courts in other states have held defendants' confessions/admissions voluntary where the police told the defendant he or she failed a polygraph test, when no real test was performed, or a real test was given but did not show deception by the defendant, or the police misled the defendant as to the accuracy of the test or its admissibility in court. [confession voluntary despite police (apparent) deception in informing the defendant that he failed a polygraph examination]; [confession voluntary where defendant was hooked up to a polygraph, but it was not turned on]; [affirmed conviction based on confession obtained after the police (perhaps) untruthfully told the 17-year-old defendant that he failed a computer voice stress analyzer, when in fact the test did not so indicate, or did so unreliably]; [police misrepresentations to defendant concerning performance on polygraph test did not invalidate confession].)

Here, we disagree with defendant's view that the police engaged in shocking and outrageous misconduct. The request for a polygraph examination was initiated by defendant, not by the police. The deception was a mock polygraph. A polygraph is designed to elicit the truth, and the police already had information from other sources that defendant was the shooter (including Schallenberg's identification of defendant as the gray-clad person in the AM/PM photo, and eyewitness statements that the gray-clad person was the shooter). The use of the mock polygraph was not likely to produce a false confession. Although defendant testified he believed polygraphs are 100 percent accurate, that belief was not induced by the police. Moreover, we know the trickery was not particularly coercive because, even after the police showed defendant the fake test results, defendant continued to deny involvement in the crime. He merely admitted being present at the scene wearing a gray sweatshirt. It was other evidence, other than defendant's statements, which gave his admission its weight, i.e., the AM/PM surveillance photo of a gray-clad male, Schallenberg's identification of defendant as the gray-clad male in the photo, and the testimony of eyewitnesses that the gray-clad male was the shooter. (Although the prosecutor used defendant's admissions in closing argument to the jury, he used them as corroboration for the other evidence.)   

 

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(Can an interrogator tell a suspect "this is just between you and me" when, in fact, the interrogation is being recorded and the recording will be used against the suspect?)

In Lee v. State (2009) the Court of Special Appeals of Maryland upheld a trial court's decision to admit the confession of a defendant who had been led to believe by the interrogator that their conversation was "just between you and me" when it was actually being recorded. From the court's decision:

"Appellant's first contention is that the circuit court erred in denying his motion to suppress the statement that he gave to the police following his arrest. This contention is based on an exchange between appellant and Detective Schrott, which occurred after appellant had waived his Miranda rights, and after some discussion of the events of the evening. This exchange was as follows:
[APPELLANT:] Yeah, this is being recorded [somewhere aint it?]

[DETECTIVE:] This is between you and me, bud. Only me and you are here, all right? All right?

Although the suppression court initially expressed "some concern" that the statement vitiated the Miranda waiver, it ultimately denied appellant's motion to suppress, stating:
The statement he makes is, this is being recorded, ain't it? The Detective does not directly answer that question by saying yes or no, but he certainly leaves the Defendant to believe that the conversation is just between the two of them, which was not true. But I do not think that the, it changed the Defendant's willingness to answer the questions in any way. Or violated his rights. So the Motion to Suppress the Defendant's statement is denied."

The Court of Special Appeals found that "Here, unlike the cases cited, supra, there was no express promise that the defendant's statements would remain confidential or that the statements were "off-the-record." Detective Schrott merely responded to appellant's query regarding whether the interrogation was being recorded by stating: "This is between you and me, bud. Only me and you are here, all right? All right?" As the State notes, this statement did not reflect any agreement of confidentiality. Rather, it was an equivocal response that was designed, not to establish a confidential relationship, but to deflect appellant's suggestion that he was aware that the interrogation was being recorded. We view Detective Schrott's response as sidestepping appellant's question regarding whether the interrogation was being recorded.

Even if the response is viewed as an affirmative misstatement that the interrogation was not being recorded, however, such a response would not violate Miranda. "There is no requirement that a defendant who has properly been given Miranda warnings must also be told he ... may be tape-recorded or video-recorded or both." State v. Vandever, 714 A.2d 326, 328 (N.J.Super.Ct.App.Div.1998), cert. denied, 834 A.2d 405 (2003). Police deception regarding whether an interrogation is being recorded, does not contradict the Miranda warning that anything the suspect says can be used against the suspect. A police officer's false statement that an interrogation is not being recorded, when in fact it is being recorded, does not render a confession inadmissible. State v. Wilson, 755 S.W.2d 707 (Mo.Ct.App.1988). "   
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(Interrogators misrepresentation of hair and fiber evidence is insufficient to make the otherwise voluntary confession inadmissible)

In State v. Hardy (2009) the Court of Criminal Appeals of Tennessee, at Nashville upheld the admissibility of the defendant's confession. In their opinion they state: "Next, the appellant challenges the admission of his statement on the grounds that officers were deceptive when they told him they could place him in Vanessa Claude's van during the month of the crime by dating hair and fiber evidence. In Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420 (1969), police obtained a full confession from Frazier after they misrepresented to him that his co-defendant confessed. Viewing the totality of the circumstances, the Supreme Court upheld the admission of Frazier's statement, concluding that the misrepresentation was insufficient to make the otherwise voluntary confession inadmissible. We likewise agree with the trial court's assessment in the present case. Under the totality of the circumstances, Detective Downing's misrepresentation about being able to date the appellant's prints in the van was not sufficient to overbear the appellant's will so as to render his confession involuntary.

Finally, the appellant argues that his confession is involuntary because officers impliedly gave him false legal advice when they told him that he would benefit from giving a statement if Lillard had him "snaked up" in something. The trial court found that "the police officers did not give false legal advice" to the appellant during the interrogation. We agree with the trial court that the officers' comments did not amount to false legal advice. Further, we note that such vague statements encouraging cooperation are not sufficient to overbear an accused's will so as to render a statement involuntary."
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(Police misrepresent eyewitness and fingerprint evidence against suspect - court upholds confession)

In Weaver v. State (2008) the police falsely told the defendant during his interrogation that 1) witnesses saw him commit the crime, (2) his fingerprints were found, and (3) a videotape showed his involvement in the crime. "Finally, appellant argues that one of the officers made false promises. After inquiring as to appellant's age, the officer told appellant he had his whole life ahead of him, even though the officer knew appellant was charged with capital murder. Additionally, when discussing appellant's drug use, the officer stated, "You know what if this just happened when you, you know you might had been doing something you didn't realize what you were doing, that's fine! There's nothing wrong with that...." Appellant appears to contend that, by making this statement, the officer was falsely promising that appellant would not face legal consequences if he committed the crime while under the influence of an illegal substance"

"In viewing the totality of appellant's interrogation, we determine that the trial court did not err in concluding that appellant's confession was voluntary. Appellant's inquiries as to what charges were being brought against him did go unanswered, but, as the trial court found, the officers specifically told appellant that they were investigating a capital murder. Officers' misrepresentations that witnesses, fingerprints, and video linked appellant to the crime merely related to his connection to the crime and were not the type of deception that likely causes an involuntary confession. Similarly, any promises made that appellant "had his whole life ahead of him" or relating to appellant's drug use during the crime were not of such an influential nature that would cause appellant to speak."
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(Lying about results of a black light test not coercive)

In Brown v. State (2008) the court found that "During the interrogation, Detective Zacharias lied by telling Thomas that the police had conducted a black light test of the house where Thomas was living. Detective Zacharias lied further by telling Thomas that this test uncovered traces of Thomas's semen throughout the house. After these misrepresentations, both detectives testified that Thomas recanted his previous denial and admitted to fondling Jill between twelve to fifteen times. Looking at the totality of the circumstances, we cannot say that the trial court's ruling that Thomas's confession was voluntary, despite Detective Zacharias's misrepresentation, is against the overwhelming weight of the evidence."
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(Court upholds confession in which police lied about satellite imagery implicating suspect)

In People v Minniti (2007) the Illinois Appellate Court upheld a confession that resulted from an interrogation in which the police misrepresented the evidence against the suspect. "The defendant contends that his statements were involuntary because they were the result of police trickery. The trial court found that there were three instances of police deception. The police lied to the defendant when they told him that there was (1) satellite imagery showing someone go from the defendant's home to the victim's home on the night of the murder and (2) DNA evidence, matching him, found inside the victim. The police also misled the defendant's father when they told him they wanted to do a routine follow-up interview of the defendant but did not inform him that they had DNA evidence from the victim's bathroom indicating that the defendant had been present inside the victim's home. While we do not condone Officer Gardner's tactics, the trickery here does not render the defendant's confession involuntary.   Click here for the complete decision.

 

We have listed dozens of cases in which the courts have addressed the issue of lying to the suspect about evidence (click here) and other trickery and deceit issues (click here).

 

 

 

 

Minimization

           

 

(Court finds that interrogators are permitted to use minimization techniques)

In State v. Belonga (2012) the Supreme Court of New Hampshire upheld the admissibility of the defendant's incriminating statements, finding that police can use minimization techniques. In this case the defendant claimed that the interrogator's "minimization of the possible causes of Rylea's [her child] injuries affected the voluntariness of her statements." The court pointed out in their opinion the following:

"At the suppression hearing, Maher testified that he used an interrogation technique that involves "minimizing the actions [of defendants to suggest] that they are less culpable for their actions, whether it be due to a chemical dependence or being under the influence of alcohol or drugs or being [under] the stress of a single parent." Therefore, this interrogation technique does not entail the use of outright falsehoods, but rather the use of subtle subterfuge. Given that police are permitted to mislead a suspect, they are likewise permitted to use minimization techniques."
Click here for the complete decision.

           

 

(The value of videotaping an interrogation – minimization)

In Commonwealth v. Chaperon (2010) the Appeals Court of Massachusetts upheld the admission of the defendant's confession after reviewing the videotape of the interrogation.  In their decision the court stated that, "The defendant claims that, after administering Miranda warnings, the detectives undermined them by promising him that they would not place him under arrest if he admitted to criminal conduct. This claim is unfounded. The detectives told the defendant (truthfully, as it turns out) that whatever he might say during the encounter, he would not be arrested that day. At the outset of the interview (which is neither included in the transcript supplied by the defendant nor mentioned in either party's brief), Detective Eason stated, "You're not being arrested tonight, but I still have to read you your [Miranda] rights" (emphasis added). Later statements were to the same effect-that whatever the defendant might say he would not be arrested on the spot. The detectives did not state or imply that, regardless of the warnings he received, his confession would insulate him from arrest. Cf. Commonwealth v. Shine, 398 Mass. 641, 650-651 (1986).

While the detectives engaged in a form of "minimization" (repeatedly stating that people will forgive a person who made a mistake, but will not forgive a liar), and also told the defendant that he should get therapy, these features of the interrogation do not preclude a finding that the defendant's statements were voluntary; rather, they are to be considered as part of the totality of circumstances.

Viewed in that way, we agree with the motion judge that the manner in which the defendant was questioned did not render the defendant's statements involuntary. Significantly, throughout the interrogation, the defendant remained composed and did not seek to terminate the interview; he carefully calibrated his answers, offering explanations (both plausible and implausible) to deflect suspicion; and, despite eventually admitting that he had touched or rubbed the victim's vagina on a number of occasions, he steadfastly denied that he ever penetrated her with his fingers as she alleged.

Click here for the complete decision.

 

Regarding the technique of minimizing the moral seriousness of the offense the Supreme Court of Canada stated the following:

  • "There is nothing problematic or objectionable about police, when questioning suspects, in downplaying or minimizing the moral culpability of their alleged criminal activity. I find there was nothing improper in these and other similar transcript examples where [the detective] minimized [the accused's] moral responsibility." R v. Oickle  [2000] 2 S.C.R. 3

 

Suggestion of reduced charges

 

(The statement "that things would go better for [defendant] if he spoke," did not serve to overbear defendant's will or render it impossible for him to make a rational, informed choice whether to confess)

In US v Huggins-McLean (January 2015) the US District Court, S.D. Georgia, rejected th defendants claim that his confession was coerced because he was denied a call to hi smother, and because the police made a promise of leniency. From the court's opinion:

"Defendant concedes that coercive police activity is a necessary predicate to the finding that a confession is not 'voluntary,' and stated the basis for such a claim in this case was "the issue with respect to Mr. Huggins-McLean attempting to call his mother, who is an attorney, and being told that he could not do so and, Number 2, the statement to Mr. Huggins-McLean that if he speaks things will go well for him.

The first contention-that the agents' refusal to allow defendant to place a phone call to his mother constituted a coercive tactic--finds no support in the case law. A well-educated adult who has been seized by the police on suspicion of criminal activity simply has no right to call his mother before deciding whether to submit to police questioning. The fact that defendant's mother happens to be a lawyer is of no importance to the voluntariness analysis, for defendant never indicated that he wanted to speak to his mother as his attorney or seek her assistance in obtaining counsel, just that he wanted to let her know that he had arrived in Savannah.

Defendant next contends that the agents improperly induced him to confess by indicating that it would be better for him to speak and provide a "truthful and honest" statement about his criminal activities... The Constitution prohibits the police from extracting a confession from a suspect through any coercive interrogation technique--be it physical abuse or psychological pressure--that is sufficient to overbear the suspect's will and critically impair his capacity for self-determination... A confession is involuntary, therefore, if made in response to a false promise that it will not be used against the suspect, or that he will not be prosecuted or will face a lesser charge and punishment if he cooperates with the police.

The federal courts, however, "have consistently declined to hold categorically that a suspect's statements are involuntary simply because police deceptively highlight the positive aspects of confession." ... Statements which focus on the possible benefits of cooperation, but which fail to explain that a suspect's cooperation may not always be to his advantage, are "the sort of minor fraud that the cases allow."

The Fourth Circuit has held that "the cryptic promise that 'things would go easier on [the suspect]' if he confessed [did not] amount[ ] to unconstitutional coercion."... The agents' assurance in this case that "that things would go better for [defendant] if he spoke," likewise did not serve to overbear defendant's will or render it impossible for him to make a rational, informed choice whether to confess. While this advice may have been misleading under the particular circumstances of this case (an issue that has yet to be determined), it did not amount "to an outright promise that nothing [defendant] said would ever be used against him."


Under the totality of the circumstances, including defendant's individual characteristics and the overall nature of the interrogation, the agents did not deprive defendant of the ability to make a rational choice between exercising or waiving his Fifth Amendment privilege against self-incrimination, either by refusing to allow defendant to let his mother know that he had arrived safely in Savannah or by opining that it would be better for defendant to cooperate.

Click here for the complete decision.

           

(Investigator's statement that felony murder would receive a lesser sentence than premeditated murder did not render confession involuntary)

In State v. Turner (May 2014) the Nebraska Supreme Court held that misinformation by police officers during the defendant's interview that felony murder would receive a lesser sentence than premeditated murder did not overcome defendant's will so as to render his confession involuntary based on purported promises of leniency. From the court's opinion:

"Turner argues that his confession was involuntary because it was induced by an implied promise that he would receive a lesser sentence if he confessed that the shooting was accidental. As evidence of this implied promise, he points to Ficenec's statements that it made "a big difference" how and why the shooting occurred and to Krause's statement that the possible penalty could be 1 to 10 years' imprisonment if the shooting was accidental. He claims that these statements constituted an implied promise of leniency which overcame his will and caused him to confess. He further argues that the officers' statements were deceptive because first degree murder encompasses felony murder--which does not require a showing of malice, intent, or premeditation.

Turner is correct in his assertion that the officers deceived him during the course of the interview at the parole office. Ficenec's statements as to there being "a big difference" how and why the shooting occurred, and specifically Krause's statement that Turner could get 1 to 10 years' imprisonment if the shooting was accidental, incorrectly indicated that felony murder would receive a lesser sentence than premeditated murder...

... We have previously noted that a deceptive statement regarding possible sentences is only one of several factors to be considered. In State v. Thomas, we determined that the defendant's confession was voluntary and not caused by misinformation regarding possible sentences due to the presence of three factors. These factors included that (1) the officers returned to previous themes between the discussion of possible penalties and the defendant's confession, (2) the defendant indicated a knowledge that he could receive life imprisonment for the crime both before and after his confession, and (3) the confession occurred after an officer indicated that he did not know what sentence would be imposed.

... As in Thomas, Turner's confession did not follow the discussion in which the officers misrepresented that a lesser sentence would be imposed for felony murder. Rather, his confession was immediately preceded by the officers' return to the prior theme of Turner not being a bad, evil person; Krause's exhortation to "do the right thing"; and the colloquy regarding Turner's belief in God and the fate of his soul. Thus, the dialog immediately preceding Turner's confession supports the conclusion that his confession was primarily motivated by remorse and a desire to do the right thing--not to receive a lesser sentence.

As to the second factor we identified in Thomas, Turner indicated both before and after his confession that he was aware he could receive a sentence of life imprisonment. Before Turner confessed at the parole office, he stated, "Man, I'm going to get life for this shit." And after he confessed and was transferred to the police department, Turner stated to Coleman, "I'm about to get like, life." Thus, this factor indicates that Turner did not believe his confession precluded him from receiving life imprisonment.

Finally, like the defendant in Thomas, Turner confessed after officers stated that they did not know what sentence would be imposed. In response to Turner's statement, "I'm going to get a hundred years," Ficenec replied, "I can't tell you what the potential penalty could be. I mean I'm not going to bullshit you. Could you potentially get life? Is that a possibility? I mean, I'm not a judge, I'm not a prosecutor." And during the colloquy immediately preceding Turner's confession, Krause stated, "I don't know, okay?" in response to Turner's assertion that he "might be in jail for a long-ass time." Thus, although they incorrectly indicated that felony murder would receive a lesser sentence, the officers made no representations as to what sentence Turner would receive if convicted. This factor supports the conclusion that Turner's confession was not motivated by a belief that he would receive a particular sentence. 
Click here for the complete decision.

 

(Statement to the effect that the defendant had a "chance to reduce the potential charges or sentencing" if he showed remorse and confessed did not render the confession inadmissible)

In US v. Takai (2013) the US District Court, D. Utah, the court found that statements to the effect that the defendant had a "chance to reduce the potential charges or sentencing" if he showed remorse and confessed did not render the confession inadmissible. In their opinion the court stated that, "Defendant's allegations of coercive tactics in the second interview revolve mainly around Agent Quirk and Detective Coats' various statements promising that they would speak to prosecutors to recommend leniency if he ... would come clean and show remorse. The transcript of the interview reveals numerous such statements.

In the interview, Agent Quirk and Detective Coats repeatedly made statements to the effect that there was a "chance to reduce the potential charges or sentencing" if he showed remorse and confessed... The basis of such statements was that the investigators would recommend leniency to the prosecutors. And both Detective Coats and Agent Quirk repeatedly clarified that they did not have the authority to make promises, control the charges, the sentencing, or even whether the case would be filed in state or federal court, though they did encourage Defendant by saying that cooperation might help... This court held in.... that in an interrogation, officers may "speculate that such cooperation will have a positive effect" as long as they do not "go beyond limited assurances." .... The court finds that Agent Quirk and Detective Coats' statements, though to some extent "promises" (but not of leniency; rather, promises to speak to the prosecutors to recommend leniency), were carefully hedged to avoid going "beyond limited assurances." ...Thus, the court finds there was no police misconduct in this interview that would justify looking further into specific characteristics of Defendant that could affect the voluntariness of his confessions where coercive police conduct has been found.
Click here for the complete decision.

                       

(What constitutes a promise of leniency?)

In Ozuna v. Texas (2011) the Court of Appeals of Texas, Austin, found that "For a promise to render a confession invalid, it must be positive, made or sanctioned by someone in authority, and of such an influential nature that it would cause a defendant to speak untruthfully....General offers to help a defendant are not likely to induce an accused to make an untruthful statement, and therefore will not invalidate a confession. Similarly, general statements made to a suspect that a confession may sometimes result in leniency do not render a confession involuntary."   Click here for the complete decision.

           

(If you do not tell the truth, "Life has ended" does not constitute a threat)

In People v. Cardenas (May 2011) the Sixth District Court of Appeal, California, says that it does not constitute a threat.  In their opinion the court stated that, "The sergeant's testimony indicated that the remark was neither a threat of harsher punishment if defendant Plancarte did not confess to robbery nor a promise of greater leniency if he did. Rather, the gist of the remark appears to be that, absent the "truth," life as defendant Plancarte knew it would end, which would seem to imply that the police already had a convincing case against defendant Plancarte unless the "true" facts put things in a different light. Exaggeration of the strength of the evidence against a defendant during interrogation does not necessarily render a confession involuntary... Mere advice or exhortation by the police that it would be better for the accused to tell the truth, when unaccompanied by either a threat or a promise does not ... make a subsequent confession involuntary.  Click here for the complete decision.                   

(The detective's statement that "[i]f you admit to things, you make mistakes, you made a bad choice; but if you deny this, in my book, you are a criminal," was merely moral urging...not a promise of leniency)

In Garcia v. State (2011) the District Court of Appeal of Florida found that "The detective's statement that "[i]f you admit to things, you make mistakes, you made a bad choice; but if you deny this, in my book, you are a criminal," was merely moral urging."  They stated that, "The constitution does not bar the use ... of any statements that could be construed as a threat or promise, but only those which constitute outrageous behavior and which in fact induce a confession." There must also be a causal nexus between the improper conduct or questioning and the confession. A confession is not involuntary if officers do nothing more than "encourage or request that person to tell the truth."

"We do not reach the question of whether the detective's promise was "outrageous," because the detective's statements do not constitute or suggest a promise of leniency. The detective's statement that "[i]f you admit to things, you make mistakes, you made a bad choice; but if you deny this, in my book, you are a criminal," was merely moral urging. "Encourag[ing] or request[ing][a] person to tell the truth" does not result in an involuntary confession."  Click here for the complete decision.               

(The statements, "I have no intention of putting you in jail tonight" and "If you have a problem, we can help you.... I promise you, I will do everything I can to help you." were not promises of leniency.)

In State v. Leeson (2011) the Court of Appeals of New Mexico upheld the lower courts decision to admit the defendants confessions.  On appeal the defendant had argued that his confession was involuntary because it was elicited by false or implied promises and threats.  In examining this issue the court made the following observations:

"The court quoted Detective Kohler as having stated, "[r]ight now, no matter what happens, no matter what you tell me, and I swear to this, I have no intentions of putting you in jail tonight." The express promise did not concern long term leniency, only the avoidance of jail that night and provided no incentive or disincentive to make admissions. The district court noted that the detective kept this promise, even though Defendant made certain admissions.

"The district court also concluded that Defendant could have inferred an implied promise to get help for him if he was cooperative. At the hearing on his motion, Defendant pointed to the following statements Detective Kohler made in the first interview as implied promises. "If you have a problem, we can help you.... I promise you, I will do everything I can to help you.... That might be something we can help you with." We addressed similar statements regarding possible treatment in State v. Lobato, 2006–NMCA–051, P 1, 139 N.M. 431, 134 P.3d 122, where the defendant was charged with criminal sexual penetration of a minor. We agreed that the statements in that case gave the impression that the defendant would get treatment if he confessed, but we did not find any promise that the defendant would get treatment instead of prison time or would get a lesser sentence of imprisonment....We concluded that the defendant's confession was not rendered involuntary by the officer's discussion of possible treatment. We reach the same conclusion here."  Click here for the complete decision.       

(The statement "...you might be charged with one thing you know there's plea agreements and things they can work out a deal" is not a promise of leniency)

In Sims v. State (2011) the Court of Appeals of Indiana upheld the lower court's opinion that this statement was not a promise of leniency.  The full statement that was at issue was the following:

"But ... don't be silly and lie about this I mean because even though you might be charged with one thing you know there's plea agreements and things they can work out a deal with you but don't throw away your entire life because that jury is going to be pi* *ed and that judge is gonna [be] pi* *ed if you go in lying in Court. They're gonna say [he] shows no remorse, he doesn't feel bad about what happened and whether you cry or not I mean that's not ... that's not what remorse is about. But doing the right thing here and telling the truth what happened that's ... that's what you need to do."

The court found that, "Here, however, Detective Mayhew neither promised Sims his punishment would be mitigated nor misstated the law. Rather, the detective merely told Sims that it was in his best interest to be honest and tell the real story, and that plea agreements and deals were available. The Indiana Supreme Court has consistently held that vague and indefinite statements by the police about it being in the best interest of the defendant for him to tell the real story or cooperate with the police, such as the one in this case, are not sufficient inducements to render a subsequent confession inadmissible."  Click here for the complete decision.        

 

(Telling the suspect the nature of the charge - capital murder - and that he can help himself by telling the truth does not render the confession inadmissible)

In Smith v. State (2010) the Court of Criminal Appeals of Texas upheld the admissibility of the defendants' confession even though he was told by the interrogator that "I'll get you the death penalty or you can tell me the truth and help yourself."


The Appeals Court found that, "Rogge's statements, which the appellant deems a threat, "offensive to due process, and [ sic ] draws a line the police may never cross, not even with a suspect who has been warned and has expressed a willingness to speak to them," do not affirmatively promise that the appellant would not get the death penalty if he confessed. At best, the comments convey the understanding that the appellant would most likely get the death penalty if he were found to be lying; if he told the truth, he would have a chance at a life sentence. When the appellant stated that he was trying to cooperate with Detective Rogge because it was "probably" the only thing that would save him from the death penalty, his statement did not inherently mean that he was being offered a deal with the police for a life sentence. In fact, when the appellant testified at the suppression hearing, he did not even say that Rogge had promised him anything or that he felt coerced to make his statement." 
Click here for the complete decision.

 

 

(The statement "we are here to listen and then to help you out," is not an implied promise of leniency)

In People v. Vance (2010) the Court of Appeal, First District, California upheld the trial court's opinion that the statement "we are here to listen and then to help you out," was not an implied promise of leniency. The Appeals Court stated that, "While defendant reads an implied promise of leniency into Officer Kelly's statement that "we are here to listen and then to help you out," and Officer Norton's statement that "the court ... wants to know what the real story is and you're the only one that can provide that," our review of the videotape reveals that the only benefits promised by the officers was the peace of mind defendant and others would have after he did the right thing and gave his side of the story. That is not coercion.


The court's decision went on to point out that "Mere advice or exhortation by the police that it would be better for the accused to tell the truth, when unaccompanied by either a threat or a promise, does not ... make a subsequent confession involuntary"; People v. Jimenez (1978) 21 Cal.3d 595, 611-612, 147 Cal.Rptr. 172, 580 P.2d 672 [" '[when] the benefit pointed out by the police to a suspect is merely that which flows naturally from a truthful and honest course of conduct,' the subsequent statement will not be considered involuntarily made"]; People v. Andersen (1980) 101 Cal.App.3d 563, 578, 161 Cal.Rptr. 707.) The brief and bland references upon which defendant has seized do not push this case over the forbidden line of promised threats or vowed leniency (see People v. Ray (1996) 13 Cal.4th 313, 340, 52 Cal.Rptr.2d 296, 914 P.2d 846), certainly not within the context of an interview that lasted more than three hours."  
Click here for the complete decision.

("We are here to help you, we are the only ones who can help you." Is not a promise of leniency)

In Redd v. State (2009) the Court of Appeals of Texas, Houston, upheld the trial courts decision to admit the defendant's statements into evidence. On appeal the defendant claimed that his "will was overborne by false promises and threats" - specifically claiming that the investigators told him that "(1) he would not get life in prison if he cooperated; (2) they were there to help him; and (3) they were the only ones who could help him."

The Appeals court ruled that the "Appellant does not specify the exact promises made by Elizondo and Dew that he assails. General statements by an officer that he is there to help defendant and is the only one who can help defendant do not indicate the "if-then" relationship required to establish a promise."

Also, the court wrote that "Specifically, appellant argues that he was induced to confess by the following statement made by Elizondo: "I guarantee that you're not going to do life [in prison] like he is. Or who ever"..... Elizondo's "guarantee" was part of a larger statement in which Elizondo attempted to persuade appellant to tell his "side of the story" before Isler was detained and blamed everything on appellant."  
Click here for the complete decision.

           

 

(Statements like "try to get something going"; I want to help you put your "best foot forward" do not constitute promises of leniency.   Statements like "being the guy that's not being completely honest" and being the "odd-man out" and "left out in the cold," do not imply a threat or dire consequences.)

In People v. Atencio (2010), the Court of Appeal, Third District, California found that the trial court properly admitted the defendant's confession, stating that, "Having examined the interviews, we discern no implied threats or promises of leniency. As defendant points out, detectives told him they were "trying to get something going" for him and trying to "help" him to put his "best foot forward" by providing a statement that honestly explained "why all this bad shit happened" and showed "some remorse" for Rapp's death. However, this cannot be construed as an implied promise of leniency. In the context of the interview, the detectives were doing nothing more than exhorting defendant to tell the truth and permissibly offering to help him explain his side of the story to the district attorney. (See People v. Ramos, supra, 121 Cal.App.4th at p. 1204 ["no improper promise of leniency" where the detective "promised only to present evidence of [defendant's] cooperation to the district attorney"].) The detectives "did not suggest they could influence the decisions of the district attorney," but simply informed defendant that providing an honest account of events might be beneficial in an unspecified way. ( People v. Carrington, supra, 47 Cal.4th at p. 174.) Indeed, immediately before he confessed to the murder plot, the detectives specifically told him the district attorney would be responsible for charging him and there probably was not a lot of "movement," "if any," as far as which crimes would be charged against him. Consequently, offering to help him explain his side of the story to the district attorney cannot be construed as an implied promise of leniency.

"Defendant also faults the detectives for warning him against "being the guy that's not being completely honest" and being the "odd-man out" and "left out in the cold," and for telling him the only way he could help himself was to tell them what happened. According to defendant, these statements constituted a threat that he was in a hopeless situation and would suffer dire consequences unless he confessed. He also complains the statements were repeated after he was told Krauter and Medina had confessed to the murder plot. Thus, he suggests, "the threat that [he] would be 'left out in the cold' if he did not confess to the murder plan like the others ha[d] done was meant to imply that all of the other participants who freely admitted participation in the murder plot would be receiving a more favorable outcome, and that he would be denied a similar benefit because of his refusal to admit the plan to commit murder."

"On the contrary, far from threatening defendant, the detectives were simply explaining the natural consequences that would flow from his lying to them, should his coconspirators suffer a crisis of conscience and confess. We have no doubt that, when those words of the detectives were repeated after they informed defendant that Krauter and Medina had confessed, the words carried greater weight in defendant's mind and likely led to the confession that followed immediately. But the fact that a strategy was effective does not make it unconstitutional. "No constitutional principle forbids the suggestion by authorities that it is worse for a defendant to lie in light of overwhelming incriminating evidence." ( People v. Carrington, supra, 47 Cal.4th at p. 174.) This is all that the detectives did in this case. They did not, as defendant claims, imply that Krauter and Medina would receive a more favorable outcome because they confessed, or that defendant would be denied a favorable outcome unless he also confessed."
Click here for the complete decision.

           

 

(Court rejects the claim that a coercive environment was created when the investigators mentioned the gravity of the offense and the possibility of a lengthy prison sentence and then told the suspect that if he cooperated he might benefit)

In US v. Dominguez-Gabriel (2010) the United States District Court, S.D. New York, upheld the trial court's decision to admit the defendant's incriminating statements even though he claimed that the agents created a coercive environment when they mentioned the gravity of the offense and the possibility of a lengthy prison sentence and then told him that if he cooperated he might benefit.

From the court's opinion:

"Finally, the Defendant complains that the agents created a coercive environment when they mentioned the gravity of the offense and the possibility of a lengthy prison sentence and then told him that if he cooperated he might benefit. But the Second Circuit has made clear that simply stating that cooperation may help a defendant facing a lengthy sentence is not enough to render a statement subsequently made involuntary. United States v. Gaines, 295 F.3d 293, 299 (2d Cir.2002); United States v. Ruggles, 70 F.3d 262, 265 (2d Cir.1995) ("Certainly, statements to the effect that it would be to a suspect's benefit to cooperate are not improperly coercive."). And when the agents told the Defendant that he had been arrested on a serious offense for which he might face a lengthy jail sentence, they were simply informing him of the facts of his situation. See United States v. Tutino, 883 F.2d 1125, 1138 (2d Cir.1989) (holding that once a suspect "had been advised of his rights, the agents were free to discuss with him the evidence against him and the reasons why he should cooperate"); Green v. Scully, 850 F.2d 894, 903-04 (2d Cir.1988) (holding that police officials' references to the electric chair, while improper, did not render a confession involuntary); United States v. Pomares, 499 F.2d 1220, 1222 (2d Cir.1974) (holding that "[i]t was quite proper in the course of such discussion to mention the situation which Pomares faced," including informing the defendant he faced heavy penalties for drug smuggling).

Even taken together, none of these circumstances rise to the level of coercion or suggest that the Defendant's "will was overborne."   
Click here for the complete decision.

           

 

(The interrogator's implication of leniency in exchange for cooperation is not coercive)

In Lewis v. Commonwealth (2009) the Court of Appeals of Virginia, Richmond the court upheld the admission of the defendant's confession. Specifically, they stated that "according to Lewis' argument, he was coerced to confess because Detective Byrd implied that Lewis would benefit by cooperating, he implied that cooperating would help Lewis see his child, he implied that Lewis' continued cooperation could earn leniency in sentencing, and he told Lewis that a videotape showed "everything."

Detective Byrd implied on several occasions that cooperating might help him obtain some leniency in the future. We held in Washington that the officer's implication of leniency in exchange for cooperation is not coercive. 43 Va.App. at 304, 597 S.E.2d at 262 (The officer's statement was not an actual promise of leniency, and the officer never claimed to have the power to affect the decision of the Commonwealth's Attorney's office.). Here, Detective Byrd never guaranteed Lewis that, by cooperating, he would receive any benefit. The detective did not make any promises to Lewis, and he never indicated that he had authority to dispense leniency in prosecution, sentencing, or visitation rights while in prison. Therefore, according to Washington, Detective Byrd's implication that cooperation might help Lewis in the future is not coercive. Moreover, Detective Byrd's implications that cooperating would help Lewis see his child and gain leniency in sentencing is similarly not coercive."   
Click here for the complete decision.

           

 

(Telling the suspect that if he tells the truth it could be in his benefit to do so and exaggerating the strength of the evidence against him does not render a confession involuntary)

In People v. Garcia (2009) the Court of Appeal, Second District, Division 2, California the court upholds the admissibility of the defendant's confession. In this case the court found that "The record negates appellant's contention that the officers made an implied promise of leniency in charging or punishing appellant. During the interview, one of the officers explained to appellant that he could be tried as a juvenile or as an adult, but added: " I can't make you any promises and I wouldn't do that but we need to know the truth and we need to know what you were thinking in your heart." (Italics added.) When appellant asked the officers what would happen to him, the officers told him: "You're going to be charged with the murder." They went on to tell him that although they would present his case to the juvenile system, someone other than the officers would make a decision whether he would be tried as an adult. In our view, there was no express or implied promise of leniency.

The officers certainly urged appellant to tell the truth and represented to appellant that it could be in his benefit to do so. These exhortations, however, were within the permissible bounds of telling appellant that it would be in his advantage to be truthful because the officers did not attach a promise of leniency with the exhortations. ( Jimenez, supra, 21 Cal.3d at p. 611 ["mere advice or exhortation by the police that it would be better for the accused to tell the truth when unaccompanied by either a threat or a promise does not render a subsequent confession involuntary"]; People v. Hill (1967) 66 Cal.2d 536, 549["[w]hen the benefit pointed out by the police to a suspect is merely that which flows naturally from a truthful and honest course of conduct, we can perceive nothing improper in such police activity"]; In re Anthony J., supra, 107 Cal.App.3d at p. 969 [15 year old defendant's confession held voluntary where officers told defendant that if he told the truth, the officers would tell the court that defendant was cooperative and would play the taped confession to the court " 'to show how cooperative the minor had been' "].)

It is true, as appellant points out, that the officers in this case exaggerated the nature of the eyewitness testimony against appellant. During the interrogation, the officers told appellant that witnesses had identified appellant as walking up to the victim, shooting the victim, running toward a van driven by his brother and leaving in that van. In fact, the two eyewitnesses for the prosecution testified only that the person they saw running after the gunshots shared the same physical build as appellant. "Numerous California decisions confirm that deception does not necessarily invalidate a confession." ( People v. Thompson (1990) 50 Cal.3d 134, 167.) Courts have upheld the admission of a confession where the officer's " 'deception was not of a type reasonably likely to procure an untrue statement.' [Citations.]" ( Ibid., citing In re Walker (1974) 10 Cal.3d 764 [upholding confession where officers deceptively told defendant that he would die before he reached the hospital]; People v. Watkins (1970) 6 Cal.App.3d 119 [upholding confession where officers deceptively told defendant that his fingerprints were found on the getaway car].)

In our view, the deceptions employed by the officers in this case were not of the type reasonably likely to procure an untrue statement from appellant."
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("I'm going to help you to get out of here, I'm going to help you with the detective...." was not a promise of leniency)

           
In Briones v. State (2008) the Appellant claimed he confessed because the interrogator promised to help him, and that he (appellant) thought the interrogator would help him go free. The interrogator did make the following statements to the defendant: ""I'm going to help you to get out of here, I'm going to help you with the detective.... [W]ith the truth, everything will come out right.... [A]t one point in your life, you need to trust someone.... I'm giving you my word as a man.... You need to speak with me and tell me everything, and we'll solve all of this." A short time thereafter, Colunga added: "I will call the detective, call her here. You and I will talk to her and we'll explain to her why.... You have a disease.... But we need to help you." The Court of Appeals found that "These generalized statements of help and comment on the power of truth, however, do not constitute the kind of "if-then ... deal, bargain, agreement, exchange, or contingency" that is of such a nature to cause a suspect to speak untruthfully."
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References to suspect's family members

           

(Court rejects the suggestion that a loss of visitation rights was coercive)

In Holland v. Rivard (March 2014) the US District Court, E.D. Michigan, upheld the lower court's decision to admit the defendant's incriminating statements. From the court's opinion:

The Michigan Court of Appeals rejected the petitioner's claim that a promise induced his confession and found it to be made voluntarily:

The existence of a promise is just one of the circumstances to consider in examining whether, under the totality of the circumstances, the statement was made voluntarily.... Raupp testified that defendant first introduced the topic of speaking with his family, although defendant claims that Raupp brought it up. We find no basis to upset the trial court's determination that Raupp's testimony was more credible on this issue.... Considering that Raupp had no knowledge of defendant's other crimes before defendant told him, Raupp had no reason to promise defendant anything in order to obtain a confession. In fact, Raupp was unaware that there was even a possibility of obtaining a confession or confessions. In addition, Raupp did not have the authority to grant defendant's request to see his family. To the extent that there was any promise, it was merely Raupp's promise to pass along defendant's request to see family to Raupp's supervisors. Accordingly, the record does not support a finding that defendant was induced or coerced into making the incriminating statements, and the trial court did not err in holding that defendant's incriminating statements were not improperly induced by a promise.

The Supreme Court has held that a combination of threats and promises may be sufficient to overbear an interviewee's will and constitute impermissible coercion.... The circumstances in Lynumn are distinguishable from those presented in this case. In Lynumn, the defendant was interrogated in her apartment while surrounded by three police officers and a police informant. The officers threatened that if she did not cooperate, state financial aid for her infant children would be cut off and the children would be taken from her. In this case, the petitioner was not facing threats to the physical and financial well-being of his minor children, or, for that matter, of his mother and fiancee. His desire to prepare his loved ones for his planned confession does not render the confession involuntary or the police conduct coercive. Individuals confess for a host of reasons. Law enforcement officers are not required to attempt to parse out or identify an individual's motivations for testifying.... Here, there is no indication that the petitioner was threatened in any way. Access to loved ones may certainly be reasonably restricted during incarceration. There is no indication that police threatened the petitioner with any loss of visitation unrelated to the fact of his imprisonment.

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(Invocation of defendant's children as a method to get a confession ruled not coercive)

In State v. Arriaga-Luna (2013) the Supreme Court of Utah reversed the lower court's decision that the defendant's confession was coerced because of the interrogating officers' "invocation of Mr. Arriaga-Luna's children as a method to get a confession." From their opinion the Supreme Court stated the following:

"As the U.S. Supreme Court has long held, "certain interrogation techniques, either in isolation or as applied to the unique character of a particular suspect, are so offensive to a civilized system of justice that they must be condemned," and confessions resulting from them are inadmissible.... Threats or promises render a confession involuntary if, in light of the totality of the circumstances, they overcome a defendant's free will.

In Lynumn v. Illinois ... and United States v. Tingle... the defendants' confessions were held to have been coerced because the interrogating officers made threats regarding the defendants' children. The police officers in Lynumn encircled a single mother and told her that she would not see her children again unless she admitted to being a drug dealer.... The officers also told Lynumn that her children's government assistance would be withdrawn unless she confessed.... The U.S. Supreme Court held that the threats regarding Lynumn's children, viewed in light of her lack of experience with criminal law and lack of counsel, overcame her free will and produced an involuntary confession....

In Tingle, the Ninth Circuit held more broadly that "[w]hen law enforcement officers deliberately prey upon the maternal instinct and inculcate fear in a mother that she will not see her child in order to elicit 'cooperation,' they exert ... 'improper influence' "... police interrogated a young mother who was suspected of bank robbery and told her that she "would not see [her] child for a while if she went to prison."

Although we recognize that the intense loyalty and emotion present in most parent-child relationships does provide an opportunity for coercion, we do not adopt any per se rule regarding the effect of references to a defendant's children on the voluntariness of a confession. The ultimate test in any case involving the voluntariness of a confession is whether the defendant's will has been overcome under the totality of the circumstances.

The detectives appealed to Mr. Arriaga-Luna's love for his daughters in three primary ways. First, during the initial interview Detective Arenaz told Mr. Arriaga-Luna, "You're not gonna see [your children]. You're ... you're gonna be locked in prison the rest of your life." We have held that officers may not threaten a harsher punishment if a defendant does not confess or promise a lighter punishment if the defendant does confess.... Here, Detective Arenaz made the statements while attempting to coax Mr. Arriaga-Luna to implicate his brother or say that the killing was accidental--not while persuading him to confess to murder. Furthermore, these statements were not improper threats because Mr. Arriaga-Luna in fact faced prison time if found guilty of murder, and separation from one's children is a natural consequence of being in prison. Detective Arenaz did not suggest that Mr. Arriaga-Luna would be able to see his children only if he confessed.

Mr. Arriaga-Luna argues that Detective Arenaz's statement was a veiled, indirect threat that he must cooperate in order to see his children. We recognize that implicit threats can constitute psychological coercion and overcome a defendant's free will. However, here, the context of the detective's statement clarifies that the statements were not implicit threats but rather factual communications that if Mr. Arriaga-Luna implicated his brother and his brother was found to be the sole murderer, Mr. Arriaga-Luna would not "be locked in prison for the rest of [his] life." Similarly, if the killing were entirely accidental, Mr. Arriaga-Luna would likely be set free. We also note that Mr. Arriaga-Luna did not confess during this interview, which suggests that the officer's statements did not overcome his free will....

In the second interrogation two days later, Detective Hamideh employed the false-friend technique. Among other things, Detective Hamideh told Mr. Arriaga-Luna, "But yes, I can bring resources there so that [your daughters] can be educated and break the cycle here."

When defendants are concerned for the safety and welfare of their families, law enforcement can inform defendants of public and charitable resources. However, officers should limit themselves to factual statements and not imply that aid for defendants' families is contingent on a confession. Here, Detective Hamideh strayed close to the line by making a personal offer to help Mr. Arriaga-Luna when he said "I can bring resources." However, it is clear from the full transcript that the officer made the statement about resources in response to Mr. Arriaga-Luna's inquiry about what would happen to his daughters, and not in exchange for a confession.

Detective Hamideh also urged Mr. Arriaga-Luna to "give [your daughters] hope that yes, I did what I did.... And I am going to take the time, until--until that point.... And after that point--'Girls. We are going to be together.' But free." Detective Hamideh also told Mr. Arriaga-Luna, "I think that their daddy--their daddy can say, 'Yes. I did make a mistake. But I have my dignity because I told the truth.' " Thus, the detective urged him to confess to earn the respect of his daughters.

Such appeals to a defendant's sense of morality and responsibility are usually non-coercive..... The totality of the circumstances show that Mr. Arriaga-Luna's free will was not overborne. Accordingly, the trial court erred in granting Mr. Arriaga-Luna's motion to suppress his confession. We reverse and remand for further proceedings consistent with this opinion.  
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(The interrogator's statement to the defendant that he would get help for the defendant so that he could retain custody of his children does not represent a promise that would nullify the confession – detailed discussion of acceptable investigator statements and approaches)

In the case of State v. Farnsworth (2007) the Supreme Court of Minnesota overruled the District Court that found that such a statement would render the confession inadmissible. The Supreme Court stated:

Farnsworth argues that Schmitz's promise to get Farnsworth help so that Farnsworth could retain custody of his children was so coercive that even an innocent person would falsely admit to having sexually abused his children. Farnsworth emphasizes that shortly after Schmitz promised him "help," he admitted that all of B.P.'s accusations were true without knowing what the accusations were, and he argues that his willingness to do so illustrates the coercive nature of the interview. The state argues that Schmitz's comments were not so inherently coercive that an innocent person would confess to the crime of child sex abuse. The state further contends that Schmitz's statements were well within the parameters of acceptable officer behavior established by this court...

The district court concluded that while many of the relevant factors outlined in Jungbauer suggested that the confession was voluntary, Schmitz's statement that he was trying to get Farnsworth "the best help [he could] so you can have your kids still" was so inherently coercive that it would cause an innocent person to confess, and that the confession was involuntary. After reviewing the relevant factors, we conclude that Farnsworth's statement was voluntary and the district court erred in ordering suppression...

We next conclude that the nature of the interrogation was not so coercive as to render the confession involuntary. It is true that Schmitz did offer Farnsworth help. But we have recognized that "the police must also be allowed to encourage suspects to talk." State v. Merrill, 274 N.W.2d 99, 108 (Minn.1978). Moreover, we have acknowledged that the use of an empathic approach when interviewing the suspect does not alone make a confession involuntary. Pilcher, 472 N.W.2d at 333. In the context of the interview, many of Schmitz's statements to Farnsworth, such as "Honesty is the best thing. * * * I thought * * * I'll bring him in Monday and listen to his story and try to get you some help because that's what you need," and "we are gonna talk about what happened, why it happened, where it happened, when it happened and then we are gonna get you some help," can be construed as efforts to encourage conversation. We do not believe that Schmitz's statements, together with the other circumstances surrounding the interview, were so coercive, manipulative, or overpowering as to deprive Farnsworth of his ability to make an unconstrained and wholly autonomous decision to speak. Schmitz's statements contained no explicit or implied promises. Rather, Schmitz's statement implied that people who commit child sex abuse need and should receive help. The nature of the questioning does not suggest that Farnsworth was led to believe that Schmitz occupied something other than an adversarial role as a questioner. In fact, Farnsworth's own statements, indicating that he was going to jail and going to lose custody of his children, illustrate Farnsworth's understanding of Schmitz's role in the interview. See Pilcher, 472 N.W.2d at 333-34 (concluding that the use of a sympathetic approach does not alone render a confession involuntary where the defendant exhibited a wariness of police tactics).

We have held that offers of help do not make a statement involuntary as long as the police have not implied that a confession may be given in lieu of criminal prosecution. See State v. Thaggard, 527 N.W.2d 804, 812 (Minn.1995); State v. Slowinski, 450 N.W.2d 107, 111-12 (Minn.1990). In Slowinski, we concluded that, even though the arresting officers had improperly suggested that they had influence with the county attorney to argue for psychiatric help, the defendant's confession was voluntary because the officers did not promise the defendant that he would receive psychiatric help instead of being sent to prison. 450 N.W.2d at 112. Similarly, in Thaggard, we upheld the voluntariness of a confession because even though the defendant thought he might receive drug treatment, he understood the Miranda warnings and knew that what he said could be used against him, and the defendant was never told, nor did the officer imply, that he would not be prosecuted if he gave a statement. 527 N.W.2d at 811-12. In contrast, in State v. Biron, we concluded that the confession was involuntary where the defendant was expressly told that if he *375 cooperated the police would have his case brought before juvenile court, but that if he did not, they would not consider seeking juvenile court proceedings. 266 Minn. 272, 277-78, 282, 123 N.W.2d 392, 396, 399 (1963).

We conclude that in this case Schmitz's actions were more similar to those of the officers in Slowinski and Thaggard than Biron. Schmitz's statements contained no explicit or implied promises that Farnsworth would not be prosecuted if he confessed, and Schmitz in no way indicated that he had special influence with the district court. Moreover, nothing in Schmitz's statement that he was trying to get Farnsworth "the best help [he could] so you can have your kids still" indicated that if Farnsworth did not confess he would certainly lose custody of his children, whereas if he did confess, he would be able to retain custody. In fact, none of Schmitz's statements amounted to "persuasive arguments calculated to induce a confession." Biron, 266 Minn. at 282, 123 N.W.2d at 399. Rather, Schmitz's general offers of help seemed to be efforts to encourage Schmitz to talk-a tactic that we found permissible in Merrill. 
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(A statement to the defendant that his children would be removed from the house unless he cooperated with the investigation did not render the confession inadmissible)

In Stanton v. Commonwealth (2011) the Supreme Court of Kentucky found that such a statement in the particular circumstances was not problematic. The court stated the following:

"In sum, the Fourteenth Amendment prohibits interrogation tactics calculated to overbear a suspect's will and to produce confessions involuntary in the sense that the suspect's capacity to choose has been distorted and critically impaired. The United States Supreme Court has held that threats to deprive a parent of his or her child unless the parent "cooperates" with investigators can run afoul of that prohibition. Here, however, unlike the cases in which a parent suspect has been threatened with an ultimate and speculative loss of a child and has been given to understand that "cooperation" will avert that loss, Stanton was merely informed that as matters stood the sexual abuse allegations against him would require those involved in the investigation to seek a court order separating his children from further contact with him, pending the investigation. This warning was not a speculative threat of ultimate loss of Stanton's children, but an accurate statement of what was apt to happen next in such cases, and as such it did not amount to overreaching by the state agents involved and did not pressure Stanton to such an extent as to impair his capacity to choose. Simply put, his admissions were not coerced by improper conduct."
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(Court rejects defendant's claim that his confession should have been suppressed because he confessed in exchange for a promise of a family visit)

In State v. Maciel (2010) the Court of Appeals of Arizona affirmed the trial court's decision to admit the defendant's confession, even though he claimed that he confessed in return for a promise of a family visit. In making their decision the court stated that, "We find State v. McVay, 127 Ariz. 18, 617 P.2d 1134 (1980), dispositive of defendant's arguments.

In McVay, our supreme court found two factors that undermined the defendant's argument in that case that his confession was coerced by the investigating officers' promise of his removal from an isolation cell. 127 Ariz. at 20, 617 P.2d at 1136. First, the court held that, when an alleged promise is couched in terms of a "mere possibility or an opinion," it cannot be deemed a sufficient "promise" so as to render a confession involuntary. Second, the court concluded that when the defendant initiates the "deal" or "promise" that was solicited in exchange for the confession, that "promise" cannot be viewed as interfering with the defendant's "exercise of a free volition in giving the confession." Id. at 20-21, 617 P.2d at 1136-37. Those factors apply to undermine defendant's arguments in the present case as well.

Here, the evidence shows that defendant initiated the "deal" when he, unprompted, informed M.B. that he wanted to confess to a murder in exchange for a family visit. Defendant did not dispute that he initiated the deal in his motion to suppress. Having chosen to initiate a deal, "freely and voluntarily," defendant cannot now maintain that in accepting the deal he was the victim of coercive influences." 
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(A statement to the defendant that "if his girlfriend was charged, and if she stayed in jail, there was a possibility that social services could take her children away" was not coercive)

In State v. Brock (2010) the Court of Appeals of Wisconsin upheld the admission of the defendant's confession, even though he was told that "if his girlfriend was charged, and if she stayed in jail, there was a possibility that social services could take her children away." In their opinion the Appeals Court stated that:

"Brock argues that Lynumn v. Illinois, 372 U.S. 528 (1963), requires suppression of his statement. Lynumn held that threats that a mother's children would be taken away from her unless she "cooperated" "must be deemed not voluntary, but coerced." Id., 372 U.S. at 534. Lynumn is inapposite because in that case the defendant was threatened with the loss of her children if she did not confess. Id., 372 U.S at 530-534, 544. Here, however, Panasiuk told Brock that if his girlfriend was charged, and if she stayed in jail, there was a possibility that social services could take her children away. Under established law, absent a showing that such a scenario was impossible or feigned, the explanation of what could happen to a third person does not make the defendant's confession coerced."
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("If you don't tell the truth you will go to jail and lose your family" – not a threat)

In People v. Montes (2009) the California Court of Appeal, Second District, upheld the trial court's decision to admit the defendant's confession. On appeal the defendant claimed that his confession was coerced as a result of police threats and promises.

"Throughout the interview, the detectives encouraged Montes to tell the truth. Otherwise, they warned him he could face a significant prison sentence and lose his family. Among other things, they told him:

"Your wife will meet somebody else, somebody else will be at Christmas with your daughters, there will be someone buying them gifts calling them Mija, and sitting on their lap and being there for her Quincenera, and taking the rest of it, they'll be calling him daddy, and you'll be in Pelican Bay, which is about eight-nine hours drive north."

"But here's the deal. Here's what happens on my job now. Tomorrow I go down to see the District Attorney and I tell the District Attorney, okay, I picked up Jorge last night, uh I would say Jorge is a hard head, didn't want to talk to me, which if [ sic ] your right I agree. Jorge doesn't want to talk to me, um, so do what you got to do. And what they're going to do is they'll research the case and what, what that scenario I just went down with you. I'll say, well I talked to Jorge, I don't think Jorge is the shooter, I already told you I don't think you're the shooter, okay? I think out of the people in that car you were the least culpable of anybody.... I think Jorge got suckered into something and he's kind of fucked. But I talked to Jorge, we explained everything, he told me exactly what happened, we need to work with Jorge. Now, I can't make any promises. No promises. I'll get you a promise. Actually right now I'll get on the stand and say I don't think you're the shooter. That's what I'm going to do.... But what I want to do is I want you to tell me what happened out there, of why you were there. I'd much rather have you come to court and say, okay, I was there, I drove the car, blah, blah, blah, blah, blah, but I didn't do this shit because I didn't know this shit was going to happen. I think you got suckered into this.... Now, what happened is, there are different kind of charges here. You can go to jail for attempt ( sic ) murder, (unintelligible) gun, which is a big charge, they can basically charge you with an ADW, they can make you an accessory, um they can do this, I can't do this ... or the D.A. can say you know what? I'd rather have Jorge as a witness, make him a witness. Okay? And, and use you there. But that's a deal that they would have to work out between you and your attorney. That's between them, I can't do that. I can only feed them the information on what to do here."

The Court of Appeal found that "Indeed, our review of the record shows that neither the detectives nor the polygraph examiner made any promises of leniency. To the contrary, Detective Smith repeatedly told Montes that he could not make any promises and that it was up to the district attorney to decide whether to make Montes a witness or to prosecute him. The only promise the detectives made was to pass any information they gleaned from Montes to the district attorney. The record also fails to show any threats by the detectives that the district attorney would learn of his refusal to cooperate which would result in some further harm to his case. We find no error in the trial court's decision to allow the jury to hear Montes' admissions."  
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(Court rejects claim that threat to prosecute the defendant's sister coerced the confession)

 

In Hill v. Virginia (2008) the defendant claimed that he confessed because the interrogator threatened to prosecute his sister for possession of the cocaine unless he claimed ownership. The Court of Appeals upheld the trial court's decision that the confession was voluntary. The Appeals court stated, in part, "Here, appellant's sister was already validly arrested pursuant to probable cause. The question is whether a promise to forgo a valid prosecution against a lawfully charged party is coercive. We find that appellant's desire to extricate his sister from a valid arrest does not in itself render his confession involuntary." Click here for the complete opinion.

 

( Statement that the defendant needed to consider whether she wanted the chance to be with her son someday            was not coercive)

In Gomez v. State (2008) the "Appellant contends that Muniz [the interrogator] made comments regarding appellant's son that were meant to induce appellant to confess. Specifically, appellant contends that Muniz stated that it would be better for appellant to cooperate, that appellant needed to consider whether she wanted the chance to be with her son someday, and that she needed to take advantage of the opportunity that the police were giving her to tell the truth." At one point Muniz said "And all of that, what happened, unfortunately already happened ... I'm just telling you what it is ... and that you accept responsibility, and if you really love your child, the way you love him ... and maybe you want a future with your son ... here is the opportunity." The Court of Appeals concluded that "Muniz did not induce or attempt to induce appellant into providing a confession in exchange for any promised benefit."
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(Statement by interrogating officers that Child Protective Services would have to remove defendant's son from her house unless they could determine exactly what happened to her infant daughter was not coercive)

In People v. Sanabria (2008) the Supreme Court, Appellate Division, Second Department, New York found that the statement by interrogating officers that Child Protective Services would have to remove defendant's son from her house unless they could determine exactly what happened to her infant daughter was not untrue or so fundamentally unfair as to deny defendant due process or raise danger that she would falsely confess, and thus did not render defendant's confession involuntary, where defendant was in custody for grievously abusing her daughter, and Child Protective Services already had obtained from Family Court order of protection directing defendant to stay away from her home and her children. Click here for the complete opinion.

           

(Police may make truthful statements that impact a child or loved one without rendering a defendant's statement involuntary)

In US v. Gorman (2008) "Gorman claims that he would not have made any statements if police had not threatened to take his child into state custody and he did not voluntarily waive his Miranda rights. He asserts that police threatened to contact the Oklahoma Department of Human Services ("DHS") and take his child into custody if he did not talk to police. Based on his testimony, it appears that the alleged threat was not made directly to defendant but, instead, by a female officer talking to Carreiro in the front yard. He claims that the female officer made "ignorant" and "rude" comments to Carreiro and Gorman's child and told the child that everyone at the home would be "sleeping next to strangers" that night. The female officer, Sokoloski, testified at the suppression hearing. She admitted that she made statements to Carreiro about taking the child into state custody because of the condition of the home, such as the lack of any light source in the child's room, and the existence of dangerous contraband and a weapon within reach of the child. She also testified that she spoke to defendant after he had received a Miranda warning and asked him about the poor condition of the home. She described her tone as firm, but she felt it was necessary to say something. Both Sokoloski and Leatherman testified that police have the authority to take a young child into protective custody, and this was not an empty threat.

"Based on Sokoloski's and Leatherman's testimony, police could take defendant's child into protective custody if they feared for the safety and well-being of the child, and these were not idle threats. Police found a loaded firearm within reach of a child and marijuana in an unlocked box on the floor. Combined with other unsafe conditions in the home, such as the lack of any light source in the child's room, police had a legitimate reason to be concerned about the child's safety. Police may not threaten to remove a person from a loved one for the purpose of coercing a confession. See United States v. Tingle, 658 F.2d 1332, 1336-37 (9th Cir.1981). However, police may make truthful statements that impact a child or loved one without rendering a defendant's statement involuntary. United States v. Jones, 32 F.3d 1512, 1517 (11th Cir.1994) (statement by police that the defendant's girlfriend would also be considered a suspect if the defendant refused to cooperate was truthful and not a ground to suppress the defendant's statements as involuntary). The mere fact that Sokoloski made statements about placing defendant's child in DHS custody does not require suppression of defendant's statements claiming ownership of the firearm and marijuana."
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(Dr. Richard Leo testimony that threatening to arrest a suspect's girlfriend or to have the suspect's child removed in order to gain access to the suspect's residence would qualify as coercive threats was rejected by the court)

 

In People v. Muratalla (2007) Dr. Richard Leo suggested that the defendant's consent to search may have been given as the result of improper police questioning techniques. The Court of Appeals decision stated that "Leo opined that threatening to arrest a suspect's girlfriend or to have the suspect's child removed in order to gain access to the suspect's residence would qualify as coercive threats. Such threats, if used to gain consent, would also affect the suspect's subsequent perceptions about whether the suspect should make statements during an interrogation." The trial court found that "under the totality of circumstances, Muratalla's consent to search was voluntary. The court found that assuming the officers had discussed the possibility of having DCFS take custody of the children and had handcuffed Dorame in Muratalla's presence, such conduct did not induce Muratalla "to do something that he otherwise might not have done." The court noted that it would have found Muratalla's consent to have been involuntary had the officers said to Muratalla that his son would be removed by DCFS and his girlfriend would be arrested unless he agreed to the search of his residence. But in the absence of such a direct threat by the officers, the trial court concluded that Muratalla's consent was obtained without police coercion." The Court of Appeals, 2nd Disrtict, California affirmed the trial court's decision. Click here for the complete decision.

 

 

Physical factors that can affect confession inadmissibility
           

(Defendant claims statements were involuntary because he had been given morphine, hydrocodone and promethazine)

 

In Williams v. Stephens (June 2014) the US District Court , N.D. Texas, the court upheld the admissibility of the defendant's incriminating statements.  From the court's opinion, "In his second ground for relief, Petitioner asserts that his statements to the police were involuntary because he had been given "mind altering" drugs, i.e., morphine, hydrocodone, and promethazine, for pain prior to making the statement.... He also claims, in his first ground for relief, that his statement was involuntary because the police officer who took his statement threatened his sister with criminal charges.

 

During the first of the two-day hearing on the motion to suppress, Detective Thompson testified that he spoke to the medical staff about Petitioner's mental state, and that the attending nurse told him that Petitioner was not under any type of medication that would impair or hinder his ability to talk and make judgment calls. He also testified that Petitioner appeared lucid at the time of both statements and gave appropriate answers to Thompson's questions.... Thompson acknowledged speaking to Petitioner's sister at the hospital to gather information. He denied telling her she was a suspect, threatening to handcuff her, speaking to any of Petitioner's family members about being suspects, telling Petitioner that one of his family members was a suspect, or threatening to arrest a family member.

 

Bill Jones, the nurse administrator at Parkland, testified that he witnessed Petitioner make the second statement to police. He signed the statement, along with Petitioner and Thompson. Before the statement, Jones spoke to Petitioner to make sure he was coherent, lucid and not under duress. He asked Petitioner if he knew what he was about to do, and whether the police had anything to do with him deciding to make the statement. Petitioner stated that he knew what he was doing. (Supp. R.[5/8/09]:47–49). After Petitioner made his statement and the police officer began to read it back, Jones asked Petitioner whether he realized the implications of making the statement, and Petitioner said that he did. Id. at 49–50. Jones did not believe that Petitioner was suffering from any delusions; he believed that Petitioner was able to make an independent, informed decision. Id. at 50. After the statement was taken and the police left the room, Jones against asked Petitioner whether anyone did anything to cause him to make the statement, and Petitioner said no. Id. at 55.

 

The record shows no coercive police conduct on the part of Detective Thompson, or any other officer, that would render Petitioner's two statements involuntary. Contrary to his assertion, he only received morphine in doses that were below what the defense expert considered normal dosage for Petitioner's size, and there was no evidence that Petitioner suffered mind-altering effects from this dosage. His second statement was coherent, related the facts in a cohesive manner, referred to the first statement, and was similar in parts to it. Finally, there was no evidence at the motion to suppress hearings that Petitioner was either suffering extensive pain or was overly encumbered by hospital equipment. The nurse administrator took steps to ensure that Petitioner understood what was happening and wanted to speak to the police. After speaking to the detective, the statement was read to Petitioner, and he read the statement himself and signed it. Petitioner's claim that his written statements were involuntary is without merit and should be denied."

 

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(Influence of Xanax)


In US v. Taylor (2013) the US Court of Appeals, Second Circuit over ruled a lower court and found that due to the defendant's physical condition at the time of the interrogation his confession was not made voluntarily. From their opinion, "Taylor claims he was mentally incapacitated during the April 9 interview because of the quantity of Xanax pills he ingested immediately before his arrest. That claim finds support in the record. Detective Burch testified that Taylor's body "was somewhat shutting down," and that "at that time that he was answering questions ... his body was giving up on him." ... Granted, Burch also testified that, when Taylor was speaking, he was "coherent" and understood what was going on when he was not nodding off. Id. But it nonetheless appears that Taylor fell asleep at least two or three times during the interview, and the officers repeatedly had to awaken him, or (to use the nicer term) "refocus" him--at one point coaxing him, "Mr. Taylor, you have to answer our questions and focus with us."... Agent Tomas corroborated that Taylor was "a little bit out of it" and dozing off.

The district court credited testimony that Taylor was coherent at times. One such interval is when Taylor signed the "advice of rights" form on April 9, a finding that we do not disturb. But as that interview progressed, it became clear to the officers (as their testimony confirms) that Taylor was in and out of consciousness while giving his statement, and in a trance or a stupor most of the time when not actually asleep. Thus, the officers' persistent questioning took undue advantage of Taylor's diminished mental state, and ultimately overbore his will. Accordingly, we conclude that Taylor's statement on April 9 was not voluntary and should have been suppressed."  
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(Expert testimony allowed on the impact of opiate addiction on confession reliability)

In State v. Granskie (2013) the Superior Court of New Jersey, Appellate Division, upheld the lower court's decision to allow expert psychiatric testimony concerning the potential impact of the defendant's opiate addiction and withdrawal symptoms on the reliability of his confession. From their opinion:

"Defendant was suspected of participating in a brutal sexual assault and murder. Two of his friends confessed to their involvement, but did not implicate defendant. He initially denied any involvement in the crime. However, a few days later, while he was in jail on an unrelated warrant, he confessed. Prior to his trial, defendant claimed that the confession was not voluntary and was unreliable, because he was suffering from severe heroin withdrawal symptoms at the time he gave the statement.

... the trial judge held that at an upcoming Miranda hearing and at trial defendant could present an expert psychiatrist to testify about the possible relationship between his heroin withdrawal and his confession. The expert would be permitted to testify that defendant was addicted to heroin and was suffering from withdrawal when he gave his statement to the police, and that his claims about the effects of withdrawal were "consistent with his claim that he was giving an unreliable statement at the time" of his confession, "given his history of issues with heroin dependence."

On this appeal, the State characterizes the trial judge's decision as a departure from established case law. We disagree. His ruling was consistent with settled precedent upholding a defendant's right to present expert testimony designed to explain to the jury why a particular defendant's psychological condition would make that defendant vulnerable to giving a false confession. By contrast, courts have routinely rejected efforts to present expert testimony concerning the phenomenon of false confessions in general or the impact of police interrogation methods in producing false confessions.
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(What level of intoxication renders a confession inadmissible?)

In Smith v. Commonwealth (2013) the Supreme Court of Kentucky held that the defendant's intoxication at the time of the police interview did not render statements to the police unknowing, unwilling or involuntary. In reaching their decision the court stated the following:

"Generally speaking, no constitutional provision protects a drunken defendant from confessing to his crimes. "The fact that a person is intoxicated does not necessarily disable him from comprehending the intent of his admissions or from giving a true account of the occurrences to which they have reference.

"However, there are two circumstances in which a defendant's level of intoxication might play a role in the suppression decision. First, intoxication may become relevant because a "lesser quantum" of police coercion is needed to overcome the will of an intoxicated defendant....Thus, trial courts must consider a defendant's level of intoxication when considering whether police coercion has overborne a defendant's will so as to render the confession involuntary for purposes of the Due Process Clause.

"Second, a confession may be suppressed when the defendant was "intoxicated to the degree of mania" or was hallucinating, functionally insane, or otherwise "unable to understand the meaning of his statements." ... quoting Marshall & Steiner, The Confessions of a Drunk, 59 ABAJ 497 (1973)) ("[W]hen intoxication reaches the state in which one has hallucinations or 'begins to confabulate to compensate for his loss of memory for recent events'... the truth of what he says becomes strongly suspect.").

"Neither of these exceptions is applicable here. First, there was no evidence of coercive influence by the police. All of the evidence tended to show that Appellant freely and knowingly accompanied the police to the headquarters for the express purpose of submitting to questioning about his alleged participation in the shooting. In addition, the record discloses that Appellant was read his Miranda rights at the beginning of the station interview, and that he signed a waiver form reflecting that he understood these rights and was voluntarily waiving them for the express purpose of the interview. Therefore, the first exception does not apply. It is well-established that no constitutional violation may occur in the absence of state-sponsored coercion.


"Further, a review of the interrogation discloses that Appellant was not so intoxicated to the degree of mania, hallucinations, or functional insanity. There is no basis to conclude that the interview should have been suppressed on the basis that Appellant was so intoxicated that his statement was inherently unreliable." 
Click here for the complete decision.                 

(Intoxication and sleep deprivation)

In State v. Strozier (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.

                       

(Can an intoxicated suspect make a voluntary confession?)

In Frazier v. State (2011) the Georgia Court of Appeals upheld the admissibility of the defendant's incriminating statement even though he was under the influence of alcohol at the time he made the statement.  The court stated that "The mere fact that a defendant was intoxicated at the time of the statement does not render it inadmissible."
Click here for the complete decision.             

(Can "days of drug use and sleep deprivation" render a confession inadmissible?)

In State v. Decloues (2011) the Court of Appeal of Louisiana, Fourth Circuit upheld the trial court's decision to admit the defendant's confession, even though the defendant claimed that "he was impaired from days of drug use and sleep deprivation at the time he gave his statement."  In their opinion the court stated that "The defendant argues that his demeanor during the taped confession and his testimony at trial clearly show that he was impaired at the time he gave his confession..... Our review of the taped confession indicates that at the beginning of the interview the detective read the defendant his rights. The defendant appears attentive while those rights were being read, acknowledging each one individually. When asked whether he understood his rights, the defendant gave a definitive yes. The defendant is noticeably fidgety and sometimes had to be asked to speak up, but... he was easily calmed. His answers were responsive to the questions asked by the detective.... Moreover, the defendant's confession coincides with the physical evidence presented at trial."   Click here for the complete decision.           

 

(Court rejects claim confession was involuntary due to marijuana and alcohol use)

In Parker v. Allen (2009) the United States Court of Appeal, Eleventh Circuit, upheld the trial court's decision to reject the claim that the defendant's confession was made involuntarily due to the influence of drugs and alcohol on his state of mind at the time. At trial the defense expert opined that by the time of his statement at 5:30 P.M., Parker would have been in a mixed state of alcohol and marijuana intoxication and alcohol withdrawal. He explained that Parker would have been suffering from anguish, desperation, discomfort, and pain as a result of alcohol withdrawal compounded by his inability to inject Talwin. He stated that the combination of withdrawal, brain damage, and neuropsychological deficits would have altered Parker's judgment and made it more difficult for him to control his impulses. He explained that, "driven by a combination of intoxication[,] addiction withdrawal[,] and memory problems" "more than his will," he may have understood the basic questions but would have felt "an extreme amount of urgency to say yes to anything that he thought would get him ... home." He noted that the sedative drugs that Parker was using, alcohol and marijuana, would have acted as a truth serum to "loosen his control over his own willful processes."   
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(Painkillers and "high" from crack cocaine)

In State v. Ashley (2009) the Louisiana Court of Appeal, Second Circuit, upheld the trial court's decision to admit the defendant's confession. The defendant had claimed that at the time of his alleged confession he was on painkillers and still "high" from crack cocaine. The court found that "No corroborating evidence was given regarding the existence of the prescription, the fact that it was filled by the jail, or what particular painkiller the defendant claimed to be on. He also claimed that he was in pain from the dog bite and hungry. He asserted that he felt threatened because he was told that he would not be allowed to eat until he answered all their questions.

The recording itself indicates that the defendant mentioned eating twice; when the comments were made, no one is heard indicating that food would be withheld until a confession was forthcoming. To the contrary, the officers responded in a positive manner that the defendant would be fed upon his return to the jail. Furthermore, the sound and content of the defendant's speech during the statement does not bear any of the earmarks of someone under the influence of an intoxicating substance, such as slurred speech or disorientation. Nor is there any indication that the confession was being made under the influence of fear, duress, intimidation, inducements, or promises."
Click here for the complete decision.

           

Court decisions regarding the testimony of false confession experts

 

Richard Leo  

 

(Court finds expert testimony regarding false confession phenomenon was not admissible)

In Commonwealth v Pugh (October 2014) the Superior Court of Pennsylvania found that "expert testimony regarding false confessions is impermissible as it provides no pedagogical purpose and interferes with the jury's exclusive duty to assess the credibility of witnesses." From their opinion the Superior Court stated the following:

"The Supreme Court's recent decision, Commonwealth v. Alicia, --- Pa. ----, 92 A.3d 753 (2014), held that expert testimony on the phenomenon of false confessions would impermissibly invade the jury's exclusive role as the sole arbiter of credibility. In Alicia, the defendant was accused of murder and other related charges. The police questioned the defendant and he eventually confessed to the murder. Defendant later moved to use a false confession expert, citing his own low intelligence, mental health issues, and that his written confession contained a number of hallmarks which indicated his confession was false. The expert proffered by the defendant claimed, during an a hearing on the admissibility of his testimony, that he would testify generally about police interrogation methods that can put an innocent suspect at risk and also about the specific ones used in defendant's case. The trial court held that the testimony was permissible as to the general aspects of police interrogation techniques, but prohibited the expert from providing any testimony as to the specific allegations in defendant's case. This Court, in a divided panel, affirmed the decision.

The Supreme Court of Pennsylvania, following the lead of the United States Court of Appeals for the Tenth Circuit in United States v. Benally, 541 F.3d 990 (10th Cir.2008), reversed. The Court found that "expert testimony such as the proposed testimony of [the defense expert] Dr. Leo constitutes an impermissible invasion of the jury's role as the exclusive arbiter of credibility." Alicia, 92 A.3d at 764. First, the Court noted that regardless of whether an expert opined on whether the confession was true or false, the effect would be the same: jurors would be persuaded to disregard the confession and credit the defense's testimony that it was a lie. Second, if the expert testimony were allowed, the Commonwealth would likely counter with its own rebuttal expert testimony, which would lead to befuddlement rather than serve to educate the jury.

Ultimately, the Pennsylvania Supreme Court found that "the matter of whether Appellee's confession is false is best left to the jury's common sense and life experience, after proper development of relevant issues related to, among other things, the particular circumstances surrounding the elicitation of his confession, using the traditional and time-honored techniques of cross-examination and argument."

Instantly, there is no dispositive factual or legal basis with which to distinguish Pugh's claim from that of the recent Supreme Court decision in Alicia. Accordingly, as we can find no distinguishable difference between the claim advanced by Pugh and the Supreme Court's decision in Alicia, we must conclude that Pugh's claim warrants no relief."

Click here for the complete decision.

 

(Pennsylvania Supreme Court finds that expert testimony of the issue of false confessions would impermissibly invade the province of the jury)

 

In Commonwealth v. Alicia (May 2014) the Supreme Court of Pennsylvania held that expert testimony from Dr. Richard Leo on the phenomenon of false confessions would impermissibly invade the jury's exclusive role as the arbiter of credibility.  From the court's decision:

 

"Although this Court has not previously ruled on the admissibility of expert testimony concerning false confessions, courts in other jurisdictions have done so. Many have held such testimony inadmissible. For example, in United States v. Benally, 541 F.3d 990, 993 (10th Cir.2008), the Tenth Circuit Court of Appeals upheld a district court's refusal to admit a psychologist's expert testimony concerning whether false confessions occur, and if they do occur, why they occur. The defendant-appellant had testified that his confession was false and claimed that it had been prompted by federal agents' coercive tactics. Id. In rejecting the defendant-appellant's proffered expert testimony, the Tenth Circuit held as follows:

 

[The psychologist's expert] testimony inevitably would encroach upon the jury's vital and exclusive function to make credibility determinations. While [the defendant-appellant] emphasizes that [the psychologist expert] would not have opined as to whether she believed [that he had] confessed falsely, with or without the opinion, the import of her expert testimony would be the same: disregard the confession and credit the [defendant-appellant's] testimony that his confession was a lie. Testimony concerning credibility is often excluded because it usurps a critical function of the jury and because it is not helpful to the jury, which is capable of making its own determination regarding credibility.

 

In United States v. Jacques, 784 F.Supp.2d 59, 60 (D.Mass.2011), a district court declined to admit the defendant's proffered expert testimony concerning the existence of false confessions generally and the features of the defendant's specific interrogation that allegedly increased the risk of a false confession. Citing Benally, supra, the court concluded, inter alia, that the proffered expert testimony was contrary to the well-established rule that an expert cannot offer an opinion as to a criminal defendant's guilt or innocence: "An opinion that a defendant's [confession] is unreliable cannot be logically disconnected from the implicit opinion that the defendant is, in fact, not guilty." Jacques, supra at 63 (emphasis in original)... See also Brown v. Horell, 644 F.3d 969, 978, 982–83 (9th Cir.2011) (in denying a petition for habeas corpus, upholding the exclusion of expert testimony as to interrogation methods that tend to produce false confessions, where the trial court had concluded that the defendant's explanation for his allegedly false confession, to wit, a threat of violence against another person, was within the jury's experience); State v. Free, 351 N.J.Super. 203, 798 A.2d 83, 95–96 (N.J.Super.App.Div.2002) (holding that the trial court abused its discretion in admitting expert testimony as to false confessions and interrogation techniques because, inter alia, it was not scientifically reliable, it was of no assistance to the jury, and the jury would recognize that coercive methods have the potential for causing a false confession).

 

After careful review of relevant opinions from courts of other jurisdictions, as well as our own precedent, we are not persuaded by the rationale of those courts that have admitted expert psychological/psychiatric testimony regarding the phenomenon of false confessions and police interrogation techniques. Rather, we conclude, in agreement with the Tenth Circuit Court's decision in Benally, supra at 995, that expert testimony such as the proposed testimony of Dr. Leo constitutes an impermissible invasion of the jury's role as the exclusive arbiter of credibility."

 

Click here for the complete decision.

 

(Court bars Dr. Richard Leo from testifying: proposed area of expert testimony has not reached the "level of scientific reliability")

In Woodall v. State (2014) the Supreme Court of Georgia upheld the lower court's decision to exclude the testimony of Dr. Richard Leo.

"Appellant contends the trial court erred when it denied his request to tender Dr. Richard Leo as an expert in police interrogation techniques and false confessions. This Court has upheld rulings within the last several years that this proposed area of expert testimony has not reached the "level of scientific reliability" necessary to allow its admission at trial.... Having reviewed the hearing transcript on the expert's proffer FN 8 in this case, we conclude the trial court did not abuse its discretion when it barred the expert from testifying in this case.

FN 8. Dr. Leo, who is a social psychologist and criminologist, stated that he wrote his doctoral thesis on false confessions and he indicated that he had personally viewed two to three hundred videotaped confessions since 1994. He stated, however, that there is no database of false confessions and each researcher is limited by his own collection of data. He also testified that not every jurisdiction is required to videotape interrogations and so any data is also limited in that respect. Dr. Leo said he reviewed the videotape of appellant's confession, but was not asked to determine whether appellant's confession was true or false. He also admitted he could not opine to the jury as to whether any particular interrogation resulted in a false confession, stating that the most he could do for the jury was identify the police interrogation techniques being utilized in the video."
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 (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 ....  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.

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

In Caine v. Jon Burge, et al., (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).   Click here for the complete decision.

           

 

(U.S. District Court excludes the testimony of Dr. Richard Leo: "his theories are both unreliable and irrelevant")

In US v. Deuman (2012) the U.S. District Court, W.D. Michigan granted the government's motion to exclude the testimony of Dr. Richard Leo on the issue of false confessions....

In their opinion the court stated that, "If permitted to testify as an expert in this case, Dr. Leo would explain: (1) that false confessions or incriminating statements are counterintuitive; (2) why confessions are prejudicial; (3) risk factors for false confessions, such as interrogation techniques; and (4) the framework for how false confessions occur. Dr. Leo would not offer an opinion as to whether Defendant lied or made false statements or whether Defendant's statements are unreliable.

"Following the Daubert hearing, defense counsel submitted a lengthy affidavit from Dr. Leo, which discusses: (1) the background of Dr. Leo's research into false confessions; (2) his theory about the three decision points that lead to a false confession, i.e., the police decision to classify an individual as a suspect; use of psychological interrogation tactics as a means to move the suspect from denial of guilt to admission; and solicitation of a post-admission narrative from the suspect, in which the suspect provides an account of the crime that may be contaminated with non-public crime facts mentioned by the interrogator; (3) Defendant's account of events demonstrating that during and subsequent to the August 17, 2011, polygraph examination, the FBI agents used coercive interrogation techniques that can lead to false confessions; and (4) "dispositional" risk factors related by Dr. William Sanders that render Defendant more susceptible to making a false confession.

"...the Court will exclude Dr. Leo's testimony because his theories are both unreliable and irrelevant to the facts of this case, and any limited probative value they might have is substantially outweighed by the potential dangers of undue prejudice and misleading the jury.... Although this research confirms that false confessions do, in fact, occur and that certain coercive interrogation techniques may lead to false confessions, Dr. Leo's theory, at least at this stage in its development, provides neither a useful nor appropriate basis to assist a jury in assessing whether a particular confession, or even incriminating statement, was false.

"As Dr. Leo forthrightly admits, despite extensive research and review of false confession cases, his methodology cannot accurately predict the frequency and causes of false confessions.... His theories cannot discern whether a certain interrogation technique, used on a person with certain traits or characteristics, results in a predictable rate of false confessions. In addition, he has formulated no theory or methodology that can be tested.... While the Court is aware that some laboratory studies, such as the ALT key study by Professors Kassin and Perillo, suggest that coercive interrogation tactics produce a significant rate of false confessions, such studies shed no light on real-world interrogation practices and results because they "were not conducted by law enforcement, were not part of a criminal investigation, did not involve actual suspects, and did not present the students with a serious penalty." United States v. Jacques, 784 F.Supp.2d 59, 66 (D.Mass.2011)."    
Click here for the complete decision.

           

 

(Court finds that the research by false confession expert Dr. Richard Leo utilized "unreliable methodology" and was prone to inaccuracy or bias)

In People v. Kowalski (2012) the Michigan Supreme Court ruled as follows:
"The circuit court excluded the testimony of two experts regarding the occurrence of false confessions and the police interrogation techniques likely to generate them as well as the psychological characteristics of defendant that allegedly made him more susceptible to these techniques.

We hold that the circuit court did not abuse its discretion by excluding the expert testimony regarding the published literature on false confessions and police interrogations on the basis of its determination that the testimony was not reliable, even though the subject of the proposed testimony is beyond the common knowledge of the average juror."

From the Supreme Court's opinion:
"The circuit court examined the manner in which Leo analyzed the confessions that he determined to be false:
[Leo] starts with the conclusion that the confession is false and then he works backwards.... He doesn't take into consideration why someone might falsely confess, other than because of a police interrogation technique.... [A]nd there are reasons why people would falsely confess, they might be trying to protect someone.... He hasn't determined a reliable means to have a study group consist of innocent people who wrongfully confess that weren't mentally ill or youth.

The circuit court criticized this methodology for failing to compare true and false confessions and identify factors that contribute to false confessions but not true confessions. As the circuit court stated, "[I]f true and false confessions can be derived from the same police interrogation techniques, [how] is it possible to blame police interrogation techniques with any degree of reliability?" Given what the circuit court considered to be inadequacies of Leo's data and methodology, the circuit court concluded that Leo's testimony was unreliable.

Nothing in the circuit court's analysis placed the exclusion of Leo's testimony outside the range of principled outcomes. The circuit court properly considered all stages of Leo's analysis and found it unreliable at every stage. With regard to the data underlying Leo's testimony, the circuit court reasonably determined that its sources were unreliable because they were prone to inaccuracy or bias and, in nearly all instances, had not been subjected to the rigorous standards of scientific peer-review. Additionally, the circuit court raised multiple legitimate concerns about the "manner in which [Leo] interpret[ed] and extrapolate[d] from those data." The unreliable methodology, as the circuit court described, resulted in conclusions consistent with Leo's own preconceived beliefs rather than testable results consistent with an objective, scientific process. Therefore, because the exclusion of Leo's testimony was a reasonable and principled outcome, the circuit court's decision did not amount to an abuse of discretion. The Court of Appeals came to the same conclusion after making similar observations about the data and methods underlying Leo's studies, and we thus affirm the lower courts' decisions to exclude Leo's testimony. 
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(Court finds that Dr. Richard Leo's proposed testimony potentially confusing and misleading)

In State v. Rafay (2012) the Court of Appeals of Washington, Division 1 upheld the trial court's opinion to exclude the testimony of Dr. Richard Leo on the issue of false confessions. From the Court of Appeals opinion:

"counsel.... informed the court that Leo would testify generally about the psychology of police interrogations, the phenomenon of false confessions, and "the erroneous but commonly held belief that people of normal mental capacity do not make untruthful and [inculpatory] statements." Counsel asserted that Leo would not opine on whether the confessions were false but would state that "if the confession in this case is false, he'll characterize it in one of the four groups that he's laid out from his research."

"In sum, Leo was unable to testify about any meaningful correlation between specific interrogation methods and false confessions or provide any method for the trier of fact to analyze the effect of the general concepts on the reliability of the defendants' confessions. Given the defendants' alleged basis for their false confessions, such limitations rendered Leo's proposed testimony potentially confusing and misleading." 
Click here for the complete opinion

           

 

(Court excludes the testimony of Dr. Richard Leo: "the proposed expert testimony was little more than speculation.")

In People v. Mullen (2012) the Court of Appeal, Third District, California upheld the lower court's decision to exclude the testimony of Dr. Richard Leo on the issue of false confessions. In their decision the Appeals Court stated that, "Expert testimony in this regard would not have altered appreciably the jury's perception of the confession. While Dr. Leo would have testified that stress can make a suspect more compliant, his testimony would not have, and could not have, established that the confession was false. The court further stated that, "Taking into account the totality of the circumstances, the proposed expert testimony was little more than speculation and would not have changed the verdict of a reasonable jury."  
Click here for the complete decision.

 

                       

(Jury rejects the testimony of Dr. Richard Leo)

In People v. Hernandez (2011) the Court of Appeal, Second District, California upheld the conviction of the defendant.  At trial Dr. Richard Leo testified that in this case he "found evidence of coercive techniques. The detectives suggested Hernandez would be less culpable if he did not plan the shooting, implying leniency, and mentioned not getting to see his son again. The detectives asked Hernandez, "Are you the guy that did that, or are you the guy that got caught up in the circumstance that just happened? [Be]cause that's something that can be explained." This suggested Hernandez's explanation of the incident might not be criminal. This theme recurs throughout the interrogation. The detectives suggest they are going to help Hernandez present the case to the District Attorney in a way that will be beneficial to him and will not prevent him from not seeing his son for 20 years. The detectives gave Hernandez the impression the shooter was culpable and Hernandez was less culpable. At the end of the interview, Hernandez asked about "the timeframe on ... being out there with my boy?" This indicates Hernandez believed he would be released if he gave the detectives an account they found to be truthful. Leo concluded the detectives used many coercive techniques in the interviews."  The jury rejected the premise proposed by Dr. Leo and convicted Hernandez.  Click here for the complete decision.

           

(Court rejects the testimony of Dr. Richard Leo on the issue of false confessions)

In People v. Polk (2011) the Appellate Curt of Illinois, First District, upheld the lower court's decision to exclude the testimony of Dr. Richard Leo.  In this case the defendant offered Dr. Leo's testimony that "factors including defendant's low IQ and interrogation techniques used in this case, such as the detectives challenging defendant's denials and detaining defendant for a significant length of time, created a risk of a false confession."

"Similarly, Dr. Leo's testimony that defendant's low IQ and the police interrogation techniques used in this case could have resulted in a false confession was not beyond the understanding of ordinary citizens, nor a concept difficult to understand. In addition, the circuit court did not prevent defendant from challenging the credibility and weight of his confession throughout defendant's trial. Further, the jury received testimony in this case regarding defendant's education, age, and intellectual performance. This included psychologist Dr. Joan Leska's testimony that defendant had an IQ of 70, placing him in the second percentile, which is extremely low, in the borderline range of intellectual functioning. The jury also heard testimony regarding the conditions of defendant's interrogation, the length of time defendant was interrogated, the receipt and waiver of Miranda rights, and the content of the police questions and defendant's statements. The jury viewed defendant's videotaped statement and could assess the format in which the questions were presented and answers were provided. It was reasonable for the circuit court to conclude that the jury could decide the issue of the reliability of defendant's statement and could have reached the same conclusion as Dr. Leo based on the testimony of other witnesses about defendant's intellectual level and the evidence of defendant's interrogation. Therefore, we cannot say that the circuit court abused its discretion in excluding Dr. Leo's testimony."  Click here for the complete decision.        

(California Court of Appeals finds that "Dr. Leo's proffered testimony, presented in a vacuum, created a substantial danger of confusing the issues or misleading the jury")

In People v. Dimas (2011) the Court of Appeal, Second District, CA upheld the lower court's decision to exclude the testimony of Dr. Richard Leo on false confession issues.  The Court of Appeal summarized the lower court's decision as follows:

"Prior to trial, the People moved to exclude the proffered testimony of a defense expert, Richard Leo, Ph.D., J.D., on the subject of false confessions. The trial court did not initially render a definitive ruling before trial, advising counsel it wanted to hear from Dr. Leo first. During trial, the court considered the issue at a hearing outside the presence of the jury pursuant to Evidence Code section 402.

Dr. Leo testified that he had reviewed Dimas's video-recorded interviews. He explained that if he were allowed to testify, he would note and explain certain interrogation techniques used by the police, and discuss the scientific research that has identified the aspects of those techniques posing "risk factors for false or unreliable statements." He would not offer any opinion about whether Dimas's statements to the police were true or false.

According to Dr. Leo, the techniques used during Dimas's interrogations were of a kind that have been linked to false statements. The officers used a "ploy" of informing Dimas that he had failed the polygraph examination, and told him that the results would be admissible in court. The interrogation was accusatory and based on a presumption of guilt. In addition, the officers tried to induce a confession by telling Dimas that admitting guilt would be in his self-interest. The interrogation the following day involved similar, albeit more "muted" inducements to give a confession.

On cross-examination, Dr. Leo acknowledged that he had not interviewed Dimas. Dr. Leo admitted he did not evaluate Dimas to assess his particular susceptibility to any interrogation techniques. Dr. Leo agreed that Dimas had spoken voluntarily to police during his interrogations, but opined that "any" interrogation which includes threats or promises, whether implied or explicit, will be "psychologically coercive" insofar as a confession is concerned. Dr. Leo conceded that there was no established scientific foundation for measuring how often false confessions are made because it is difficult to know the number of false confessions that have actually been provided by suspects. He acknowledged there is insufficient data on the subject."

After this review the Court of Appeals concluded "In our view, Dimas's case falls somewhere in between Hall and Page, and best fits the Ramos model. We reject Dimas's claim of expert witness error because the record supports the trial court's conclusion that Dr. Leo's testimony would not have been helpful. There is no evidence in the record suggesting that Dimas ever refuted his confession, or that Dr. Leo had any reason to believe Dimas's confession was false. Absent some evidence indicating that Dimas was susceptible to making a false confession there was little for Dr. Leo to offer to the jury other than an abstract, academic discussion on the subject of false confessions. Such testimony would have been unrelated to a substantive foundation concerning Dimas' case. Dimas did not testify about his experience during the interrogations, and Dr. Leo acknowledged that he never interviewed Dimas. We will not find the trial court abused its discretion in rejecting Dr. Leo's testimony because we cannot say that the trial court's ruling was arbitrary or beyond the bounds of reason in light of all of the circumstances.  For the same reason, we find the trial court's ruling under Evidence Code section 352 was also correct. Dr. Leo's proffered testimony, presented in a vacuum, created a substantial danger of confusing the issues or misleading the jury."  Click here for the complete decision.           

 

(Dr. Richard Leo's testimony of false confessions properly excluded)

In US v. Redlightning (2010) the US Court of Appeals, Ninth Circuit, upheld the trial court's decision to exclude the testimony of Dr. Richard Leo on the issue of false confessions. In reaching their decision the Court of Appeals pointed out that, "The district court excluded the proffered expert testimony of Dr. Leo for the following reason:

At the Daubert hearing regarding Dr. Leo's testimony, the court learned from Dr. Leo that there was nothing in the record at this point to support his theory that the interrogation techniques used in this case raised the risk of a false confession.... Here, the court, as gatekeeper, cannot permit Dr. Leo to testify regarding the possibility of a false confession due to police interrogation techniques when he can point to no evidence in the record that any of these techniques are present in this case.

The district court concluded that "Dr. Leo's opinion regarding Defendant's confession in this case is based solely on conversations Dr. Leo had with defense counsel wherein defense counsel informed Dr. Leo that Defendant had been promised leniency if he confessed."

The Court of Appeals went on to say, "The gatekeeping function requires that the judge assess whether "the reasoning or methodology underlying the testimony is scientifically valid," and "whether that reasoning or methodology properly can be applied to the facts in issue....Here, Redlightning did not sufficiently show how Dr. Leo's testimony would have applied to the facts of his case. Perhaps most importantly, Dr. Leo testified that nothing in the record, including the FBI reports of the October 2 interview and the testimony at the pretrial suppression hearing, showed that any coercive tactic that may lead to a false confession was used when the FBI questioned Redlightning. To be relevant, an expert's opinion must be based on "sufficient facts or data," and the witness must be able to "appl[y] the principles and methods reliably to the facts of the case."
Click here for the complete decision.

           

 

(Court listens to but rejects Dr. Richard Leo's testimony that the interrogation was "psychologically coercive and the detectives "went over the line." Also, "suggesting possible justifications for a homicide (such as self-defense) is not coercive.")

In People v. Vargas (2010) the Court of Appeal, Fourth District, Division 3, California upheld the trial court's decision to admit the defendant's confession.

During the suppression hearing "An expert in the field of interrogation techniques, Professor Richard Leo, was called to testify by defendant during the pretrial hearing to determine the admissibility of defendant's statements during the interrogation. Leo concluded the interrogation was psychologically coercive and the detectives "went over the line." Leo testified: "I can't get inside [defendant's] head, but the structure of the interrogation is ... 'we have all this evidence, it is irrefutable, this is your only chance. Here is an account, here is the explanation that we will get you a misdemeanor and is relatively painless. But, if you avoid this opportunity, you are looking at rotting in jail and getting charged with one, two, or three serious felonies.' [P] So the logic of it is 'if you don't do anything, you are going to be in the worst possible situation.' "

The trial court denied defendant's motion to exclude the interrogation tape and transcript from evidence. "[I]t just appears to the court that these implied promises and threats are of such a nature that they do flow naturally from these exhortations [to tell the truth] from the police."

The Appeals court further stated in their opinion that, "Accurately describing the possible consequences of a murder conviction is permissible. Suggesting possible justifications for a homicide (such as self-defense) is not coercive; this tactic instead suggests "possible explanations of the events and offer[s] defendant an opportunity to provide the details of the crime." ( People v. Carrington (2009) 47 Cal.4th 145, 171 ( Carrington ).) Although it is a factor potentially supporting a finding of involuntariness, deceiving a defendant by inaccurately describing the existence of physical evidence linking defendant to the crime does not necessarily invalidate a confession. ( People v. Thompson (1990) 50 Cal.3d 134, 166-167, 170 [confession voluntary even though interrogators falsely told defendant that tire tracks, soil samples, and rope fibers linked him to crime]; People v. Watkins (1970) 6 Cal.App.3d 119, 124-125 [confession voluntary even though defendant falsely told his fingerprints were found on the getaway car]; see Carrington, supra, 47 Cal.4th at p. 172 ["The use of deceptive statements during an interrogation ... does not invalidate a confession unless the deception is ' " 'of a type reasonably likely to procure an untrue statement' " ' "].)   
Click here for the complete decision.

           

 

(Court rejects testimony of Dr. Richard Leo on false confession issue)

In People v. Lucas (2009) the Court of Appeal, Third District, California upheld the trial court's decision to exclude the testimony of Dr. Richard Leo on the subject of false confessions and police interrogations. The trial court had refused to allow Dr. Leo to testify, concluding that nothing that the doctor had to say would assist the jury and that there was "not a shred of evidence before us at this point to render a basis for any opinion by Dr. Leo that the confession was false...." In their review of the case the Court of Appeals stated that "Because the jury's verdict was well grounded in convincing, objective evidence and did not demonstrate a blind acceptance of the prosecution's interpretation of defendant's "confession," we cannot say a more favorable verdict was more likely had Dr. Leo been permitted to testify."   
Click here for the complete decision.

           

 

(Court excludes testimony of Richard Leo)

In State v. Law (2008) the Court of Appeals of Washington found that the trial court's decision to exclude the testimony of Dr. Richard Leo was correct. They stated:

"Law sought to call Dr. Richard Leo, a social scientist who would testify about the social psychology of interrogation and the phenomenon of false confessions, including how police interrogation techniques induce false confessions and what the indicators of an unreliable confession were. He was also prepared to testify that the circumstances surrounding Peregrin's questioning of Law suggested unreliability, and that it was improper for Dr. Hoberman to opine that Law's confession to following minors was true.

"Initially the trial court ruled that Dr. Leo's testimony would be admissible based on Law's offer of proof. But after Law testified and denied making the statements to Peregrin, the trial court ruled that Dr. Leo's testimony would be excluded. The trial court concluded that this was not a false confession case, noting that during his testimony, Law "very much made it clear that he never made those statements.... [H]e never stated that he made those statements, but because he was threatened or forced or coerced, those statements are not true.... He simply denied the conduct."

The trial court's ruling was a proper exercise of discretion. Once Law denied making the alleged confession, any testimony about whether the confession was false was irrelevant and would not assist the trier of fact. Law contends that his testimony was not an outright denial, but ambiguous at best, and asserts that his testimony was simply that Peregrin misconstrued some of his statements. But claiming that one's statements have been misconstrued is not the same as claiming that one made a false statement. Expert testimony about false confessions is only relevant when a party claims that he confessed to something he did not do. And as the trial court correctly concluded, the record here does not support Law's argument that he gave a false confession. During direct and cross-examination, he denied that he told Peregrin that he had followed 30 to 40 minors, that he had sexual thoughts of past victims two to three times a week, and that when he saw someone of similar age to the victim it triggered a sexual thought. The trial court properly excluded Dr. Leo's testimony."
Click here for the complete opinion.

           

In People v. Cerda (2008) The Court of Appeal upheld the trial court's decision to deny the request from the defendant for an expert (Dr. Richard Leo) in false confessions. The Court stated "a request for services that would be merely convenient to the defense rather than reasonably necessary need not be granted."
Click here for the complete opinion.

           

In State v. Law (2008) The Court of Appeals upheld the trial court's decision to exclude Dr. Richard Leo's testimony after the defendant testified that he never made incriminating statements. "The trial court concluded that this was not a false confession case, noting that during his testimony, Law "very much made it clear that he never made those statements.... [H]e never stated that he made those statements, but because he was threatened or forced or coerced, those statements are not true.... He simply denied the conduct.""
Click here for the complete opinion.

           

In People v. Steele (2008) The Court of Appeal upheld the trial court's decision to exclude the testimony of Dr. Richard Leo, stating, "The defense offered the testimony of Dr. Richard Leo who would have testified on what psychological factors "might lead a defendant to make a false statement." Dr. Leo would have testified on police tactics that lead to inaccurate and unreliable statements. But Dr. Leo would not have offered an opinion on whether appellant's statements were false confessions. ...The trial court properly excluded Dr. Leo's testimony. The issue, as appellant framed it, was whether his statements were voluntary. Dr. Leo would not have testified on this issue."
Click here for the complete opinion.

           

(Dr. Leo has not formulated a specific theory or methodology about false confessions that could be tested)


In State v. Wooden (2008) the Court of Appeals upheld the trial court's decision to exclude the testimony of Dr. Richard Leo, stating that, "Of particular significance to the Daubert analysis here, Dr. Leo has not formulated a specific theory or methodology about false confessions that could be tested, subjected to peer review, or permit an error rate to be determined. Dr. Leo's research on false confessions has consisted of analyzing false confessions, after they have been determined to be false...... Given the evidence before the trial court that Dr. Leo's expert testimony did not include a reliable scientific theory or anything outside the understanding of the jury that would assist it in assessing the reliability of Wooden's confession, the trial court did not abuse its discretion in refusing to admit Dr. Leo's testimony."
Click here for the complete opinion.

 

 

In People v. Rathbun (2007) the Court of Appeals, Second District, California rejected the testimony of Dr. Richard Leo, stating in part:

The court ruled that Dr. Leo would not be permitted to testify, his testimony being irrelevant because, as acknowledged, none of the stated influences was present with regard to appellant's confession. The court also ruled based on Evidence Code sections 352 and 801, and Kelly, supra, 17 Cal.3d 24. 
Click here for the complete decision

 

 

Richard Ofshe

 

(Court should have allowed Dr. Richard Ofshe to testify in general about false confessions)

 

In State v. Perea (2013) the Supreme Court of Utah found that Dr. Richard Ofshe should have been allowed to testify at trial on the phenomenon of false confessions generally.  From their opinion:

 

Mr. Perea argues that the district court also erroneously excluded the testimony of Dr. Richard Ofshe, a defense expert who intended to testify regarding false confessions. The district court ruled first that Dr. Ofshe could not testify as to the truthfulness of Mr. Perea's confession. It next questioned whether or not an expert was needed to testify to the phenomena of false confessions and concluded that "a jury of lay people can decide the question as to whether or not a confession is reliable, involuntary, or coerced without having an expert testify on that issue."  Finally, the court found that Dr. Ofshe's methods were not "science" and refused to allow any of his proffered testimony.

 

Because we find that any error was harmless, we decline to consider whether the district court erred when it prohibited Dr. Ofshe from directly testifying as to the veracity of Mr. Perea's confession. However, we find the district court did err when it barred Dr. Ofshe from testifying as to the phenomenon of false confessions generally.  Click here for the complete decision.         

(If 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

In Commonwealth v. Harrell (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, .... 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, .... 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.      

(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)

In Thompson v. Warren (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.

 

 

(Court does not allow Dr. Richard Ofshe to testify on false confession issues)

In US v. Holmes (2012) the U.S. Court of Appeals, Fourth District, upheld the lower court's decision to exclude the proposed testimony of Dr. Richard Ofshe. In their opinion the Court of Appeals relates the following: "The following day, Holmes notified the Government that he intended to call an expert witness, Dr. Ofshe, to "explain why people falsely confess and the factors that are considered." ... At the Government's request, Holmes later clarified that Dr. Ofshe would not "be offering an opinion about whether ... the statements made by [Holmes] in this case were in fact false," but would educate the jury "about the scientific research on false confessions, the fact that they occur, and some of the reasons why."

The Court of Appeals found that, "Neither Holmes' brief synopsis of Dr. Ofshe's opinion nor Dr. Ofshe's curriculum vitae provide the bases and reasons for his proposed testimony that individuals sometimes make false confessions. Accordingly, the district court did not abuse its discretion in concluding this consideration also favored granting the motion in limine."

Click here for the complete decision.

           

 

(Court finds the proposed testimony on false confessions does not meet the Frye test)

In Bell v. Ercole (2011) the U.S. District Court, E.D. New York, found that the trial judge exercised discretion to exclude the expert testimony for the following reasons:

Defendant states that the expert in this case is prepared to testify about various aspects of the general phenomenon of false confessions, leaving the question of whether defendant's confession was accurate or false to the jury (Defense Memorandum p. 7 fn.2). Since abstract principles of social science as applied to a confession will be espoused, without anything to warrant their application to this defendant, the proposed testimony would unduly confuse the jury and confound the issues in the case.

The issue of whether defendant's inculpatory statements were voluntarily made is a question for the jury to determine. The circumstances of the questioning and confession will be presented to the jury which will be able to make this determination.

The District Court further stated that, "Many of the New York cases, particularly those of the Appellate Divisions, do not go into significant detail as to the reasons for exclusion of expert testimony relating to confessions, which is why I relied on a thorough and exhaustive discussion of the Supreme Judicial Court of Massachusetts, which concluded that proposed testimony of one of the experts on whom Bell relied, Professor Saul Kassin, did not meet the requirement for admissibility of expert testimony because of a lack of general acceptance in the scientific community and the lack of a showing that the evidence is reliable or valid through an alternative means."  
Click here for the complete opinion.

                       

(Dr. Richard Ofshe testifies)

In Contreras v. State (2011) Dr. Richard Ofshe testified "as an expert witness on the subject of police interrogation tactics and influence. In particular, he testified about the significance of certain tactics and explained how they can be psychologically coercive. Further, Dr. Ofshe related to the jury that false confessions do occur and people sometimes confess to a crime they did not commit."
Click here for the complete decision.

                       

(Court rejects the testimony of Dr. Richard Ofshe)

In Brown v. Horell (2011) the US Court of Appeals, Ninth Circuit, upheld the lower court's decision to exclude the testimony of Dr. Richard Ofshe on the basis that his testimony would not help the jury assess the credibility of the defendant's confession.
Click here for the complete decision.             

(Military court rules that it was error to exclude the testimony of Dr. Richard Ofshe on the issue of coercive interrogation techniques)

In US v. McGinnis (2010) the US Army Court of Criminal Appeals agreed with appellant's claim that "the military judge abused his discretion in denying the defense request for expert assistance "in the area of coercive law enforcement techniques which may lead to a false confession." In their decision the Court stated the following:
"Here, appellant "made a specific request for expert assistance necessary for his defense on a central issue in a closely contested case. The military judge erred in denying the defense the equal opportunity to obtain evidence and witnesses guaranteed by Article 46 of the Uniform Code of Military Justice." Lloyd, 69 M.J. at 101 (Effron, J., dissenting). While defense counsel was able to consult briefly with Dr. Ofshe, educate himself on coercive interrogation techniques and obtain CID's training slides, he was hindered from fully preparing his defense by having an expert as a member of his defense team. .....While he was able to present the concession from the same CID agents who took appellant's confession that false confessions do occur, defense counsel was prevented from obtaining expert assistance, which might have allowed him, through cross-examination or direct testimony, to present evidence to the panel on the study of coercive interrogation techniques, why they work, and how some of appellant's specific characteristics and the circumstances of this case may have made appellant particularly vulnerable to the interrogators' coercive techniques. Defense counsel was also unable to obtain from the CID agents a concession that any of their interrogation techniques could have led to unreliable admissions in this case. Instead, as a result of the military judge's error, "the defense was compelled to rely on arguments by counsel drawing inferences from lay testimony without the benefit of" expert assistance to prepare for trial and potentially, expert testimony to educate the panel regarding the study of coercive interrogations and the study of false confessions.   
Click here for the complete decision. 

 

(Court rejects suppression hearing testimony of Dr. Richard Ofshe)

In People v. Balbuena (2010) the Court of Appeal, First District, Division 2, California upheld the trial court's decision to admit the suspect's incriminating statements. "Richard Ofshe testified as an expert "on the influence used in police interrogations." In his view, the interrogators, "working in tandem," used a "psychologically coercive" strategy "that is pushed forward by offering leniency through suggestion, and then ultimately through blatant statement of the same point to overcome resistance.... [I]t is a motivational strategy that is all about benefit if you comply, and more serious punishment if you don't. And that's the strategy that is used repeatedly, was developed and then used repeatedly throughout this interrogation. It's not a simple one statement." The detectives used a "coherent strategy" throughout the interrogation, promising appellant he would receive "the worst possible punishment" if he continued to maintain he had no involvement with the crime, while if he agreed to various suggestions it would "open the door to and result in his receiving great leniency, or relative leniency.... [P] Once compliance is gained, it's then used to overcome subsequent resistance." The court rejected this hypothesis.

During the defendant's interrogation the detectives again offered various scenarios: "[I]f it's a justifiable homicide or its something you did out of rage and you just weren't thinking straight then that's important for us to get down accurately. If you're just a killer that just wants to go around to kill people and skin cats and all that type of stuff, then by all means tell us and we'll document that as such." "Maybe you were shooting in defense and just, right maybe tying to scare him."

This tactic was permissible. ( People v. Holloway, supra, 33 Cal.4th at pp. 116-117.) As the Holloway court explained, "[Detective] Hash's further suggestions that the killings might have been accidental or resulted from an uncontrollable fit of rage during a drunken blackout, and that such circumstances could 'make[ ] a lot of difference,' fall far short of being promises of lenient treatment in exchange for cooperation. The detectives did not represent that they, the prosecutor or the court would grant defendant any particular benefit if he told them how the killings happened. To the extent Hash's remarks implied that giving an account involving blackout or accident might help defendant avoid the death penalty, he did no more than tell defendant the benefit that might ' "flow[ ] naturally from a truthful and honest course of conduct" ' ( People v. Jimenez, supra, 21 Cal.3d at p. 612), for such circumstances can reduce the degree of a homicide or, at the least, serve as arguments for mitigation in the penalty decision. As the appellate court explained in People v. Andersen [ (1980) ] 101 Cal.App.3d [563,] 583, 'Homicide does possess degrees of culpability, and when evidence of guilt is strong, confession and avoidance is a better defense tactic than denial.' " ( People v. Holloway, supra, 33 Cal.4th at p. 116.) To the same effect, the court found in People v. Carrington (2009) 47 Cal.4th 145, 171, "Detective Lindsay's suggestions that the Gleason homicide might have been an accident, a self-defensive reaction, or the product of fear, were not coercive; they merely suggested possible explanations of the events and offered defendant an opportunity to provide the details of the crime." Here, in presenting appellant with different scenarios for how the crime could have occurred, the detectives told appellant time and again that it was important for them to know what he was thinking. This was relevant and accurate, as appellant's mental state would bear on the determination of which offense he could be charged with and found to have committed."
Click here for the complete decision.

                                                                                                                                   

 

(Court excludes the testimony of Dr. Richard Ofshe)

In People v. Ekblom, (2010) the Court of Appeal, Sixth District, California upheld the trial court's decision to exclude the testimony of Dr. Richard Ofshe. From their opinion the court stated that:

"Prior to the jury being impaneled, defendant made an oral motion in limine to allow Ofshe to testify as an expert. Lempert identified Ofshe as "a world [-]renowned expert in false confessions" who would testify regarding "reasons why someone who is not guilty of an offense would confess to it." The prosecution objected to the proffered testimony on the grounds that (1) the defense had not disclosed the specific nature of the proposed testimony; (2) Ofshe's qualifications varied from the subject matter of his proposed testimony in that his usual testimony concerned coerced confessions and police interrogation techniques, not the circumstances of an admission by a defendant to a victim during a police-initiated pretext telephone call; and (3) Ofshe's testimony was unnecessary to the trier of fact. Defense counsel acknowledged that he had received no reports from Ofshe concerning his anticipated testimony. In response to the court's request for an offer of proof, Lempert indicated that Ofshe would "dispel [the] myth" that "innocent people do not confess to having committed crimes" and "[t]hat when badgered by an individual and by addressing the individual's sympathy and beneficence, that a person will confess to something [he or she] didn't do." The court ordered the exclusion of Ofshe's testimony. It reasoned that the circumstances of the case were dissimilar to those in which a suspect is coerced or bullied by the police into making a false confession, and that "there are no facts that take the question outside the [ken] of the ordinary juror.... [P] ... [P] ... There is nothing that the jury is not capable of understanding about how that personal pressure, emotional plea, and begging might affect someone to say something you think will have no consequence other than to placate an obviously distraught person." Affirmed.   
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(After a Daubert hearing a trial court rules that Dr. Richard Ofshe's testimony was inadmissible)

In State v. Lamonica (2010) the Court of Appeal of Louisiana, First Circuit, upheld the trial court's decision to exclude the testimony of Dr. Richard Ofshe. The Court of Appeal stated that: "Dr. Ofshe's testimony at the Daubert hearing suggested that there was no methodology about false confessions that could be tested, or that would permit an error rate to be determined. In this area of research, the result of the lack of any reliable testing format to establish predictors of when a false confession might occur is a methodology consisting of analyzing false confessions only after a confession has been determined to be false.   The trial court did not err in finding Dr. Ofshe's proposed trial testimony inadmissible under Daubert."   
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(Trial judge found that Ofshe's testimony did not relate to a subject beyond the juror's common experience)

In Brown v. Horell (2009) the U. S. District Court, E.D. California upheld the trial court's decision to exclude the testimony of Dr. Richard Ofshe. The District Court stated:

"After the trial court ruled that Brown's firearm use admission could come into evidence, the defense offered Dr. Ofshe as an expert witness to explain to the jury "how some of the interrogators' tactics had the potential of inducing [Brown's] confession." The trial judge recognized that his finding that the admission was voluntary did not automatically render Ofshe's testimony irrelevant, but ultimately declined to admit it.

The trial judge found that Ofshe's testimony did not relate to a subject beyond the juror's common experience, and thus would not be helpful to the jurors as they assessed the credibility of Brown's firearm use admission. The judge explained that a significant factor in his decision was the fact that Brown made no reference to the interrogator's techniques when he retracted the firearm use admission, nor did he indicate any unsureness as to why he gave the false statement. Rather, Brown unequivocally stated that he "confessed" because someone had threatened to shoot his girlfriend if he did not take responsibility. In light of Brown's explanation for the alleged false admission, the judge reasoned that Ofshe's opinion regarding interrogation techniques would not assist the jury in assessing the credibility of the admission. Brown claims that this evidentiary ruling deprived him of his constitutional right to present a complete defense.

To the extent the jury decided to rely on Brown's admission, the sole question for their consideration was whether it was true. Ofshe was not in a position to offer anything useful in this regard. He had no expert opinion whether Brown's admission was true (RT at 48), and had no special expertise as to the truth or falsity of the remainder of Brown's statements. (RT at 56.) Upon the record of this case, the exclusion of Ofshe's testimony did not have had a substantial and injurious effect on the jury verdict at Brown's trial. See Brecht, 507 U.S. at 637."
Click here for the complete opinion.

 

 

(Judge rejects Dr. Ofshe testimony)

In Smith v. State (2009) the Court of Appeals of Alaska upholds the trial court's decision to reject the testimony of Dr. Richard Ofshe. From their opinion:

"Smith argues that Sergeant Kenny offered Smith a job as an informant, including an agreement that Smith would receive a full pardon after serving 5 years' imprisonment. Essentially, Smith claims to have confessed to murdering Enzler and Bellamy to "establish his credibility" so that he could serve as an informant.

Judge Link also made the following specific findings related to Smith's testimony that he had received an agreement to act as an undercover informant:
[N]o agent of the State ever offered Smith a deal to provide information to the State. No agent of the State ever offered Smith leniency or any other inducement to encourage him to give interviews or statements. Specifically, Smith's statements regarding a deal ... to the effect that he would serve five years and then receive a full pardon, or that he would work as an informant ... is fabrication on Smith's part. Smith ... offered to provide information [several individuals], but these offers were never accepted by the State. Smith also argues that Judge Link's ruling was clearly erroneous because he failed to consider the testimony of Dr. Richard Ofshe. "[W]here there is a direct conflict in testimony, it is crucial that the trial court summarize the evidence, identify factual conflicts and resolve them on the record."

Dr. Ofshe testified that the interview transcripts suggested that Smith appeared to be motivated to work as an undercover agent. He opined that several aspects of the transcripts did not make sense without there having been some prior agreement between Smith and the officers. Nevertheless, Dr. Ofshe did not raise a direct conflict in the evidence about what happened between Smith and the investigating officers. He merely offered his opinion about how to resolve a latent conflict.

A trial court "ordinarily has no obligation to accept expert testimony when it finds other evidence more persuasive." Thus, Judge Link was free to make an independent evaluation of the facts on which Dr. Ofshe relied. FN11 Based on the same evidence evaluated by Dr. Ofshe, Judge Link found that Smith was not credible and that the purported off-the-record deal was fabricated. In view of Judge Link's detailed findings, his failure to mention Dr. Ofshe by name was not clearly erroneous."
Click here for the complete opinion.

 

 

(Dr. Richard Ofshe testimony limited)

In Contreras v. State (2009) the Court of Appeals of Texas ruled on the following - Appellant's first two issues involve the expert testimony of Dr. Richard Ofshe. In Point of Error One, Appellant challenges the trial court's ruling that this expert witness could not relate the specific facts of the case to his expertise and knowledge. In Point of Error Two, Appellant contends the trial court erred when it ruled Dr. Ofshe could not testify about ultimate issues to be determined by the jury.

The trial court ruled that:

"He can testify as to the general basis of interrogation methods. Obviously, we know they exist. We know they existed in this case. We know it exists for the Police Department. You-all tendered over those documents. But, Mr. Ponder, I will tell you: He will not testify as to the veracity of any statement. He will not testify as to the voluntariness of any statement, and he will also not testify as to any truth or false confession."

The Court of Appeals found that "We conclude that Dr. Ofshe's testimony was not beyond that of the average juror's knowledge and experience and that his testimony would not help the jury understand the evidence or determine a fact issue. The jury was equally competent to form an opinion about the ultimate fact issues, namely the voluntariness of Appellant's second statement. Because Dr. Ofshe's testimony impermissibly offered a direct opinion as to the truthfulness of Appellant's statement, we find no error in its exclusion. We overrule the first two points of error."
Click here for the complete opinion.

 

 

("Dr. Ofshe's testimony did not contain 'sufficient evidence to confirm that the principles upon which the expert based his conclusions are generally accepted by social scientists and psychologists working in the field.)  

In People v. Rosario (2008) this case the court considered the defense request to offer Dr. Richard Ofshe as an expert witness on false confessions. The court concluded, "Dr. Ofshe's testimony did not contain 'sufficient evidence to confirm that the principles upon which the expert based his conclusions are generally accepted by social scientists and psychologists working in the field. Therefore, his anticipated testimony that psychological coercion was employed during the interrogation of defendant, Argelis Rosario, which in his opinion would induce a person to falsely confess, does not meet the Frye standard for admissibility."
Click here for the complete opinion."

 

 

(Dr. Ofshe testimony limited) 

In Fox,II, Appellee-Plaintiff v Indiana (2008) the defense counsel was permitted to question Dr. Ofshe generally about coerced confessions, but not to ask questions about this particular case. Fox contends the trial court erred in so limiting the scope of his expert witness's testimony. The Court of Appeals stated "The jury was also permitted to view a videotape of Fox's entire interrogation. Therefore, the jurors were fully able to apply the concepts about which Dr. Ofshe testified to the interrogation that produced Fox's confession. This is all Dr. Ofshe's permissible testimony could have accomplished. There was no reversible error here."
Click here for the complete opinion.

           

 

(Jury rejects testimony of Dr. Ofshe)

 

In People v. Cota (2007) the Court of Appeal, 4th District, Division 3, California reported the following:

"During trial, defense psychological expert Dr. Richard Ofshe testified about interrogation tactics used by police in order to elicit confessions from suspects and factors that contribute to suspects making false confessions. During closing argument, the prosecutor read an excerpt from a law review article in which Ofshe was quoted as saying: " 'While a guilty party will likely be very unhappy that he is being accused and confronted with evidence that supports the accusation, he is somewhat insulated from shock because he has always been aware of possible detection and can understand that he has been caught. An innocent suspect is likely to experience considerable shock and disorientation during interrogation because he is wholly unprepared for the confrontation and accusations that are at the core of the process and will not understand how an investigator could possibly suspect him.'

The prosecutor then proceeded to argue, "[w]hen you look at this videotape [of the defendant's interview with Campuzano], ask yourself that question. Where is the shock of being accused of these horrific crimes? ... There isn't because the defendant knew what he did, period. And because this evidence is so compelling, because it is so compelling, the defense is grasping at straws.... And all they need to do is fool one of you. If they fool one of you, then the defendant is not held responsible."  The jury found the defendant guilty. 
Click here for the complete decision.

 

 

(Dr. Ofshe testimony not allowed because it did not contain 'sufficient evidence to confirm that the principles upon which the expert based his conclusions are generally accepted by social scientists and psychologists working in the field)   

 

In Lyons v. State (2007) Lyons sought to have Dr. Richard Ofshe testify as an expert witness on false confession theory. Following a hearing outside the jury's presence at which Ofshe testified, the trial court ruled that it would not allow the testimony based upon the evidence in the case, because such theory had not reached a verifiable stage of scientific certainty, and because whether Lyons's inculpatory statements were the results of threats or coercion was a matter the jury could discern for itself. "This Court further observed in Riley that the admission of expert testimony based on the theory of false confessions was premature and unreliable inasmuch as there was insufficient scientific support and too many unanswered questions regarding such theory. Id. at 682-683(4), 604 S.E.2d 488. In short, false confession theory does not satisfy the evidentiary test in criminal cases set forth in Harper v. State, 249 Ga. 519(1), 292 S.E.2d 389 (1982)." Click here for the complete decision.

 

 

(The jury will not be, and cannot be, assisted in any way by Dr. Ofshe's views)      

 

In US v. Mamah (2002) the US District Court, N.D. Illinois granted the government's motion to bar Dr. Richard Ofshe's testimony, stating that "The jury will not be, and cannot be, assisted in any way by Dr. Ofshe's views in determining whether Mr. Mamah's version of the interrogation is more accurate than that of the interviewing agents, assuming material conflict. It is a classic jury function to determine the credibility of witnesses. That Dr. Ofshe can say some people confess falsely when faced with certain stimuli is not relevant to the jury's credibility determination function. Nor can Dr. Ofshe testify, as part of his work, what the specifics of the interrogation consisted of as related to him by Mr. Mamah. Mr. Mamah's statements to him about the interview would be inadmissible hearsay and could not be disclosed by Dr. Ofshe to the jury pursuant to Rule 703. Beyond that, Dr. Ofshe employs mere conclusory statements in his report about tactics used without specifics or elaboration. As is recited in Hall at p. 1344, conclusory statements without any explanation why the expert can contribute to the jury's understanding of the subject are also subject to exclusion. That is also the situation here." Click here for the complete decision.

           

 

(Dr. Ofshe attempts to discredit the Reid Technique)

 

In State v. Tapke (2007) the Court of Appeals of Ohio upheld the defendant's confession which was obtained by an officer who was trained in The Reid Technique. Dr. Richard Ofshe testified about false confessions and attempted to describe The Reid Technique. The jury subsequently rejected his testimony and "chose not to discredit it [the confession]."

It is interesting to note that in his testimony Dr. Ofshe testified that as part of The Reid Technique interrogators are taught the following:

"So what police have learned to do is to communicate the message through a series of suggestions * * * the idea being to communicate the understanding that there's a deal on the table, but without ever explicitly saying here's the deal." He used the example of a person accused of GSI. He testified that the police would say something like this to a suspect: "[Y]ou're not a sexual predator; you're someone who needs treatment. What would you rather do, go to prison as a sex offender, or get some therapy in treatment."

It is interesting to note that the exact opposite is the case - we teach not to make any statements that refer to punishment, threats or promises of leniency (see Criminal Interrogation and Confessions, 4th ed., 2001), and in our training seminars we highlight the case, Com. v. DiGiambattista, 813 N.E.2d 516 (2004), in which the Massachusetts Supreme Court indicated that "what seemed to disturb the Court the most was the apparent reference to counseling which they felt "implicitly suggested to him that "counseling" would be an appropriate avenue for him to pursue after making a confession." In other words, if he confessed he would get counseling instead of jail." This is exactly what we teach not to do.  
Click here for the complete decision

 

 

(Military judge found that Dr. Ofshe's theory regarding coercive interrogations was not based on rigorous scientific analysis or even subject to scientific testing but was rather Dr. Ofshe's own subjective review of a group of particularly selected cases)

 

In US v Wilson (2007) the U.S. Navy-Marine Corps Court of Appeals upheld the trial judge's decision to exclude Dr. Richard Ofhe's testimony.


In their decision the Court of Appeals stated:

"In essence, the military judge found that Dr. Ofshe's theory regarding coercive interrogations was not based on rigorous scientific analysis or even subject to scientific testing but was rather Dr. Ofshe's own subjective review of a group of particularly selected cases. By way of example, at one point Dr. Ofshe testified that his theory concerning the impact of certain police interrogation techniques on the danger of false confessions was as intuitive as the fact that the sun will come up each day. Essentially he argues that we can't necessarily prove causation but we just know how it works. Id. at 5, Record at 1202.

The military judge's finding that the proffered theory was not scientifically sound was wholly supported by the affidavits of Professor Cassell and LtCol Slicner. Professor Cassell, after noting that he is familiar with Dr. Ofshe's research, opines that Dr. Ofshe's theories "have not been sufficiently tested ... have an unacceptably high rate of error ... depart from accepted standards ... and have not been accepted in the relevant scientific community...." Appellate Exhibit LXVII at 2. LtCol Slicner, opining more generally on research into the causes of false confessions, observes that to her knowledge there are no "scientifically reliable studies" that associate particular personality traits or the nature of the interrogation with false confessions. She opines that one cannot "hold so many unusual and diverse variables constant in order to study the effect of one or more clearly identifying variables." Appellate Exhibit LXVIII at 2.

Having determined that Dr. Ofshe's theory was not based on sufficient scientific rigor to be reliable and that it was not widely accepted within the relevant scientific community, the military judge went on to rule that the witness could testify only to his rather commonsensical opinions that "false confessions do occur" and that "some persons have, after certain techniques have been used, made false confessions." Appellate Exhibit LXXII at 5. The military judge then found, as the appellant asserts, that the opinions Dr. Ofshe could legitimately testify to were not beyond the experience of the average member and therefore of such minimal value as to be substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. The underlying basis for the military judge's decision, however, was that Dr. Ofshe's expert opinion testimony was not scientifically reliable. We find, therefore, that there was ample evidence supporting the inadmissibility of Dr. Ofshe's expert testimony and that the military judge did not abuse his discretion when he excluded it."
Click here for the complete decision

 

 

(In this case Dr. Ofshe testimony is irrelevant)

 

In Staye v. Angel Torres (2006) the Court of Appeals of Ohio, Eighth District, Cuyahoga County rejected Torres claim "that the trial court erred by excluding the testimony of interrogation expert, Dr. Richard Ofshe. The trial court excluded Dr. Ofshe's testimony based on the fact his opinion was irrelevant to the facts of the case. We agree. Dr. Ofshe specializes in determining the voluntariness of a confession. However, in the instant case, Torres did not claim his confession was involuntary, but claims he never gave a confession and that the detective fabricated his confession. Therefore, Dr. Ofshe's testimony as to whether the confession was voluntary was irrelevant. In fact, Dr. Ofshe even stated he had never previously testified whether a confession was fabricated by a detective."  Click here for the complete decision.

 

 

(Court rejects Dr. Ofshe opinion)

 

In People v. Ladell Deangelo Brown (2006) the Court of Appeal, Third District, California affirmed the conviction of Brown who had admitted that he had shot the victim, Victor Jones. At trial Dr. Richard Ofshe "testified about research showing that modern interrogation techniques lead to false confessions. Ofshe opined that Overall [the investigating officer] induced defendant to admit he shot Victor accidentally or in self-defense by leading defendant to believe he would receive leniency. He noted that Overall never told defendant he remained subject to serious criminal liability under the felony-murder rule. Citing the totality of the circumstances, the court ruled that defendant's admissions were voluntary and denied the motion to suppress."  Click here for the complete decision.

 

 

(Jury rejects testimony of Dr. Ofshe in employee theft prosecution)

 

In People v. Amy Marie Garvin (2005) the defense offered expert testimony from Dr. Richard Ofshe who testified that "a poorly done interrogation could produce a false confession. Poorly trained interrogators use false "evidence ploys" in conjunction with inappropriate psychological "motivators" to coerce false confessions without knowing that the confessions are false. These interrogators focus only on producing a confession without thinking about the guilt or innocence of the person interrogated." The jury rejected this testimony and found the defendant guilty.
Click here for the complete decision

 

Saul Kassin

 

(Confession voluntariness - court rejects the concept of pragmatic implication)

Pragmatic implication is a theory proposed by Professor Saul Kassin which posits that a subject of an interrogation may cognitively perceive threats or promises even though the investigator never threatened the suspect or offered the suspect a promise of leniency. In the case of People v. Benson (2010) the Court of Appeal, Third District, California the premise of this theory was rejected. In this case the court found the following:

"Here, Detective Rodriguez did tell defendant there was "a big difference between ... someone getting hurt and trying to shoot someone." However, the detectives made no promises or representations that defendant's cooperation would garner more lenient treatment or lesser charges. "No specific benefit in terms of lesser charges was promised or even discussed, and [the detective's] general assertion that the circumstances of a killing could 'make[ ] a lot of difference' to the punishment, while perhaps optimistic, was not materially deceptive." ( People v. Holloway (2004) 33 Cal.4th 96, 117.) The general assertion that the circumstances of a killing could make a difference was not materially deceptive. It is not deceptive to state that an accomplice to murder may be better off than the shooter. ( People v. Garcia (1984) 36 Cal.3d 539, 546-547.)

In addition the court addressed the issue of giving the suspect false information:

"Nor does the detectives' use of false information render defendant's admissions involuntary. Lies told by officers to a suspect during questioning may well affect the voluntariness of a confession, but they are not per se sufficient to render a confession involuntary. Where the deception by the officer is not of a type reasonably likely to procure an untrue statement, a finding of involuntariness is unwarranted. ( People v. Farnam (2002) 28 Cal.4th 107, 182 ( Farnam ).) Courts prohibit only those psychological ploys that, under the totality of circumstances, are so coercive they tend to produce a statement that is both involuntary and unreliable. ( Ray, supra, 13 Cal.4th at p. 340.)

In Farnam, supra, 28 Cal.4th 107, the court found the defendant's confession to an assault and robbery was voluntary. The officers falsely told the defendant that his fingerprints had been found on the victim's wallet. ( Id. at pp. 182-183.) Nor did the court find a confession coerced when an officer made false statements regarding evidence the officer said tied the defendant to a murder. ( People v. Thompson (1990) 50 Cal.3d 134, 167.)
          

           

 

(Court limits testimony of Professor Saul Kassin on false confession issues)

In State v. Cope (2009) the Court of Appeals found that the trial court did not err when they excluded the testimony of the defendant's false confession expert about two cases of coerced internalized false confessions and "we find no error by the trial court in denying Cope's motion to suppress his confessions."

"In this case, Cope presented an expert, Dr. Saul Kassin, who testified regarding false confessions. Dr. Kassin testified as to the interrogation techniques used by the police in obtaining false confessions and the techniques used in this case: (1) false evidence-the officers telling Cope he failed the polygraph; (2) positive confrontation-the officers claiming they knew Cope did it; (3) the officers' refusals to accept Cope's denials of guilt even though he agreed to a polygraph and waived an attorney; (4) minimization-the officers suggesting the crime was accidental; and (5) interrogation while Cope was traumatized and tired.

Dr. Kassin proffered testimony about Peter Reilly, who falsely confessed to murdering and sexually assaulting his mother, and Gary Gauger, who falsely confessed to murdering his parents. In both of these cases, the defendants denied involvement, were administered polygraphs and told they failed, believed they must have somehow committed the crimes, and confessed. The trial court refused to allow Dr. Kassin to testify regarding specific cases of false confession unless they were "on all fours" with this case and ultimately refused to allow the testimony. "  
Click here for the complete decision.

           

 

(Expert testimony on false confessions does not pass the Frye test of general acceptance in its field)


In Bell, Petitioner v. Ercole, et al. (2008) the US District Court stated in their opinion that "Justice Cooperman denied the defense's request to admit expert testimony (Saul Kassin), concluding that the jury could determine the voluntariness of Bell's statements based on the facts presented and that expert testimony on false confessions does not pass the Frye test of general acceptance in its field. People v. Bell, Ind. No. 128/97, slip op. at 3-4 (N.Y.Sup.Ct. Apr. 28, 1999). This decision is consistent with a long line of New York cases, of which the most recent, People v. Wiggins, 16 Misc.3d 1136 (N.Y.Sup.Ct.2007), contains a particularly thoughtful discussion of the issue."
Click here for the complete opinion.

           

 

(Massachusetts Supreme Court finds Dr. Saul Kassin testimony inadmissible)

In Commonwealth v. Robinson, (2007) the Massachusetts Supreme Court upheld the trial court's decision to reject the testimony of Dr. Saul Kassin. Quoting from the Supreme Court's opinion:

"A hearing was held before the judge to consider the admissibility of the testimony of Professor Saul Kassin. The professor was offered by the defendant as an expert witness on the subject of the psychology of police interrogations and confessions. The judge refused to admit his testimony because it did not meet the "general acceptance" or "reliability" criteria required by Commonwealth v. Lanigan, 419 Mass. 15, 25, 641 N.E.2d 1342 (1994), and also because it concerned issues within the knowledge and experience of laypersons."

"Nevertheless, on cross-examination the professor conceded that there was no empirical data on the number of false confessions, and that there is no scientific basis for distinguishing true from false confessions. Indeed, he admitted that one of his articles stated, "Further research in the field is sorely needed.... [T]he current empirical foundation may be too meager to support recommendations for reform or qualify as a subject of scientific knowledge." The professor also said that, in fact, in mock jury experiments, jurors were able to distinguish accurately voluntary from involuntary confessions. He agreed that he could not say that lay people could not accurately assess the techniques that would cause false confessions."

"The judge concluded that Kassin's testimony did not meet the requirements set forth in the Lanigan case. We agree. As the judge stated, Kassin conceded that his opinions are not generally accepted, require further testing, and are not yet a subject of "scientific knowledge." One of his own publications admitted as much. Accordingly, his proposed testimony that certain interrogation techniques have previously produced false confessions does not meet either the general acceptance or reliability criteria established by the Lanigan case. The judge did not abuse her discretion in refusing to admit Professor Kassin's testimony"  
Click here for the complete decision.

 

 

(Kassin testimony limited)

In State v. Myers (2004 ) the Supreme Court of South Carolina upheld the admissibility of a confession by investigators utilizing The Reid Technique, and also found that there was no error when the trial court limited the testimony of Dr. Saul Kassin.
Click here for the details of the decision.

 

 

Deborah Davis

 

(Testimony of Dr. Deborah Davis on false confessions excluded by the court - minimally probative in this case because it did not go beyond the common experience of the jurors)

 

In People v. Durst (2014) the Court of Appeal, Third District, California upheld the lower court's decision to exclude the testimony of Dr. Deborah Davis on the issue of false confessions.  From their opinion the Appeals Court stated:

 

"The court held a hearing on whether to admit the expert testimony concerning false confessions, which included a 250–slide PowerPoint presentation prepared by the expert. The court informed defense counsel that the expert would not be allowed to use the 250–slide presentation under Evidence Code section 352 because it was in the form of a lecture, not testimony of an expert.

 

The trial court recognized Dr. Deborah Davis as an expert in the field of false confessions. Dr. Davis testified at the Evidence Code section 402 hearing that (1) suspects sometimes falsely confess what they have not done and (2) many people mistakenly believe that no suspect falsely confesses. Circumstances such as interrogation techniques (presenting false or misleading evidence or using polygraph tests, for instance), as well as the length of the interrogation, sleep deprivation, high stress, and distrust of one's own memory may result in a false confession.

 

In summary, the court found that the evidence was minimally probative in this case because it did not go beyond the common experience of the jurors. The court noted various parts of the testimony that would be too general to be helpful or would be confusing. In fact, the jurors had been asked during voir dire concerning their acceptance of the phenomenon of false confessions and had indicated their acceptance. The minimal probative value was substantially outweighed by the danger that the evidence would confuse or mislead the jury and consume an undue amount of time.

 

The California Supreme Court, in Linton, recently considered a claim that exclusion of expert testimony about false confessions was an abuse of discretion and violated the defendant's right to present a defense. The Linton court rejected the claim, concluding that where there was a "dearth of evidence indicating a false admission or confession," as well as a "multitude of corroborative evidence ... that suggested defendant's admissions and confession were true." ... Under these circumstances, "it fell within the trial court's broad discretion to determine that [the expert's] proffered testimony had, at most, minimal probative value, which was substantially outweighed by its likely undue consumption of time. [Citations.]" ( Ibid.)

 

Likewise, here, there was a dearth of evidence indicating that defendant's confession was false. The details of his confession matched the facts of the crime produced at trial. Defendant admitted that he entered the house, lit the candle, and opened the gas valve. The candle was from defendant's house, and defendant was present at the scene during the time when the acts occurred. Defendant readily admitted that he did not like Liu, and he had already stolen items from the house.

This is not a close case in which evidence concerning whether police interrogation tactics could produce a false confession would have been helpful to the jury. Therefore, the trial court did not abuse its discretion in excluding the expert testimony, and the exclusion of the testimony did not violate defendant's right to present a defense." Click here for the complete decision.         

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

In Commonwealth v. Harrell (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.

           

 

(Court excludes the testimony of Dr. Debra Davis on the issue of false confessions)

In Commonwealth v. Szakal (2012) the Superior Court of Pennsylvania upheld the lower court's decision to exclude the testimony of Dr. Debra Davis on the issue of false confessions, stating in their opinion that "her testimony would not be of any assistance to the triers of fact "given that the jurors, during voir dire, admitted that they already knew false confessions occur."

"... Basically, the defense in this case was that [Appellant] lied in his recorded statement to police about his role in the murders of Mr. and Mrs. Springer. He claimed to be telling the truth when he took the stand and implicated his co-defendant, Mr. Tartt, as the trigger man. In other words, [Appellant] asked the jury to believe that he falsely confessed to the murders. The issue then, is whether the average juror, in this case, needed to be told that false confessions occur? This [c]ourt found that the jury did not; as almost every juror in the pool indicated that [he or she] believed that false confessions do occur. In fact, defense counsel raised that point in his closing argument.

"Moreover, if 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."  
Click here for the complete decision.

           

 

 

(Court rejects expert testimony on confessions (Dr. Deborah Davis); upholds confession admissibility (Reid Technique))

In People v. Gallo (2008) Dr. Deborah Davis testified for the defense at the suppression hearing (click here for a copy of her Power Point slides) but the court rejected the effort to suppress the confession, stating that the interrogator "used a technique [Reid Technique] he learned in his police training, and his use of it followed what the courts have deemed to be permissible."
Click here for the complete decision.

 

 

(Dr. Davis's testimony did not meet the standards for relevance or reliability required by Daubert)


In US v. Benally (2008) the defendant notified the government he planned to call Dr. Deborah Davis, a professor of psychology at the University of Nevada at Reno, as an expert witness on false confessions. Mr. Benally offered her as "an expert in the field of social psychology" and "the subjects of confession, interrogation techniques ... [,] and the ability of those techniques to cause people to confess." Mr. Benally offered Dr. Davis's testimony on two subjects: (1) whether false confessions occur; and (2) why people confess falsely. Dr. Davis had never examined Mr. Benally, and would not offer an opinion as to whether he confessed falsely.

After a Daubert hearing, the district court ruled that Dr. Davis's testimony was inadmissible, concluding that it did not meet the standards for relevance or reliability required by Daubert.
Click here for the complete opinion.


In Zao v. City of New York (2008) the court also rejected the proposed testimony of Dr. Deborah Davis.
Click here for the complete opinion.

 

Bruce Frumkin

(Court excludes the testimony of defense expert Dr. Bruce Frumkin because it would "lead to confusion and misunderstanding.")

In State v. Ackerman (2012) the Court of Criminal Appeals of Tennessee upheld the lower court's decision to exclude the testimony of defenses expert Dr. Bruce Frumkin "about the defendant's susceptibility to suggestion."

"With regard to his potential testimony about the defendant's susceptibility to suggestion, Doctor Frumkin testified that he performed a "comprehensive clinical interview" of the defendant and administered a test to measure intelligence quotient ("IQ"), a personality inventory test, a personality factor test, and "the Gudjohnsson."

".... Doctor Frumkin reiterated that he would not offer an opinion on whether the defendant's admissions to Ms. Ackerman and Detective Robinson were false. He said that he would instead provide the jury with psychological information about the defendant that would explain why he was more likely to provide false or inaccurate information in the face of that type of questioning. He said that he had no opinion on the accuracy of the defendant's statement, that he would not testify "in terms of the likelihood he gave a false statement or not," and that his only testimony would be that the defendant possessed psychological traits that made him more vulnerable to suggestion. He characterized his testimony as "additional data that [the jury] should look at [to] make a better determination of how much weight to give to what that person is saying."

At the conclusion of the hearing, the trial court took the motion under advisement and, in a later-filed written order, ruled 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.      

(Court finds testimony from Dr. Bruce Frumkin inadmissible on whether the defendant has a propensity to make a false statement)

In State v. Pate (2011) Court of Criminal Appeals of Tennessee upheld the lower court's ruling to restrict the testimony of defense expert Dr. Bruce Frumkin. The Appeals court found that "Where expert testimony is merely an iteration of what would be within the jurors' common sense, the admission of such evidence does not assist, much less substantially assist, the trier of fact to understand the evidence or determine a fact at issue. Accordingly, a court would not err by excluding an expert whose testimony consisted solely of providing a dressed-up and credentialed declaration of what would be already safely within a juror's common-sense understanding."  
Click here for the complete decision.      

(Court rejects forensic psychologist Bruce Frumkin's testimony as to the defendant's ability to make a knowing and intelligent waiver of his rights)

In State v. Keys (2010) the Court of Appeals of Iowa upheld the lower court's decision to reject the testimony of forensic psychologist Bruce Frumkin on the intellectual capacity of the defendant to understand and waive his rights.

"Keys asserts he did not freely decide to forgo his Miranda rights....He relies on the testimony of forensic psychologist Bruce Frumkin, who opined it was "unlikely [Keys] would have been able to fully make a knowing and intelligent waiver of his Miranda rights." Frumkin based his opinion on five factors: (1) Keys's educational level, (2) the results of an IQ test, (3) Keys's overall psychological functioning, (4) the results of comprehension tests, and (5) Keys's history of drug use.

With respect to the first two factors, it is undisputed that Keys was not an academic stand-out in high school, dropped out in the eleventh grade, and had IQ scores at the low end of the testing range. These facts, however, did not automatically render Keys incapable of waiving his Miranda rights. See State v. Fetters, 202 N.W.2d 84, 89 (Iowa 1972). Indeed, while Frumkin opined "that people of lower intelligence don't understand Miranda rights as well as people of higher intelligence," he conceded there is no cutoff IQ score that renders someone incapable of waiving his or her Miranda rights.

This brings us to the third factor, Keys's overall psychological functioning. This factor also does not support a finding that Keys was incapable of waiving his Miranda rights. It is true that Keys had a history of anxiety, preoccupation with intrusive thoughts, and a propensity for "cognitive slippage," which Dr. Frumkin defined as "some temporary inefficiency in processing information." However, these deficits were not apparent in the video recordings. To be sure, Keys had trouble coming up with certain descriptive words, but he responded quickly to the officer's questions and comments and his reactions were appropriate for the circumstances.

The fourth factor cited by Dr. Frumkin, the results of tests to measure Keys's current comprehension and appreciation of Miranda rights adds little to the analysis, as Dr. Frumkin admitted Keys did "relatively well" and "currently ha [d] a good understanding of the Miranda rights and currently is able to make an intelligent use of the Miranda rights." While Frumkin suggested the positive test results reflected Keys's efforts to educate himself after the interrogation, this suggestion belies his earlier assertion that Keys lacked the education and IQ to process the Miranda warnings at the time of the custodial interrogations.

The final factor cited by Dr. Frumkin, Keys's drug use, was not evident on the video recordings. Dr. Frumkin acknowledged this and the State's expert confirmed it. Additionally, all the officers who encountered Keys testified they did not believe the defendant was under the influence of drugs.

On our de novo review, we agree with the district court that Keys possessed "sufficient intellectual capacity to understand Miranda warnings and to validly waive those Miranda warnings ." 
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(Court determines the jury can assess a statement's reliability without the need for expert testimony from Dr. Bruce Frumkin)

In State v. Bennett (2007) the Illinois First District Apellate Court found that the proposed expert testimony from Dr. Bruce Frumkin on the defendant's suggestibility was not necessary in order for the jury to assess the defendant's statement:

In this case, the circuit court held that the portion of Dr. Frumkin's testimony regarding his assessment of defendant's interrogative suggestibility was not beyond the common knowledge of lay persons and would not aid the trier of fact in reaching its conclusion. The court permitted defendant to comment upon the evidence during voir dire, opening statements, trial and closing arguments, and stated that the trier of fact could rely on its own common sense and experience in life without expert testimony in determining the issue of suggestibility. Defendant has not shown an abuse of discretion in excluding the expert testimony in this case.

Similarly, Dr. Frumkin's testimony that defendant was susceptible to police interrogations and suggestions based on his intellectual abilities was not beyond the understanding of ordinary citizens, nor a concept difficult to understand. In addition, the circuit court did not preclude defendant from challenging the credibility and weight of his confession. Rather, the court specifically stated that defendant could comment upon the evidence and the issue of suggestibility throughout defendant's trial.

Further, the jury received testimony in this case regarding defendant's school and intellectual performance. Defendant had a full opportunity to cross-examine the police officers and prosecutors that interrogated him about their techniques. The jury heard testimony regarding the conditions of defendant's interrogation, the length of time defendant was interrogated, the receipt and waiver of Miranda rights, and the content of the police questions and defendant's statements. The jury viewed defendant's videotaped confession and could assess the format in which the questions were presented and answers provided. It was reasonable for the trial court to conclude that the jury could decide the issue of the statement's reliability using its common knowledge and could have reached the same conclusion as Dr. Frumkin based on the testimony of the other witnesses and evidence. Consequently, the jury would not be aided by Dr. Frumkin's testimony.
Accordingly, we cannot say that the trial court abused its discretion by excluding the testimony of Dr. Frumkin. 
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(Court finds test on suggestibility was "not a valid and reliable test to determine a person's suggestibility to admit to a crime")

In People v. Nelson (2009) the Illinois Supreme Court upheld the trial court's decision to refuse to allow Dr. Bruce Frumkin to testify concerning his use of the Gudjonsson Suggestibility Scale (GSS) in evaluating defendant's susceptibility to giving a false confession. The trial court found "that the test was not a valid and reliable test to determine a person's suggestibility to admit to a crime. The court found it difficult to accept that a test taken nearly three years after the murders regarding a subject that was not autobiographical in nature could be presented as evidence. The court further stated that it was unaware of any court in Illinois that had allowed the GSS to be presented to a jury on the issue of the defendant's interrogative suggestibility. Thus, the court concluded that the GSS did not meet the standard for admissibility under Frye." 
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Christian Meissner

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

In US v. Bell (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.

 (Military court limits the testimony of Dr. Christian Meissner on the defendant's "heightened suggestibility and manipulation" as a result of his interrogation)

In US v. Markis (2009) the US Army Court of Criminal Appeals ruled that "any legal error attached to the military judge's limitation on Dr. Meissner's testimony does not rise to the level of a constitutional magnitude and appellant was not denied "a meaningful opportunity to present a complete defense."

In this case, the military judge informed civilian defense counsel before Dr. Meissner testified, "You can't ask him any hypotheticals, unless you run it by me ... and I better not hear any hypothetical questions about the facts in this case from that guy." The record of trial demonstrates the military judge clearly did not want the witness to opine that appellant's confessions were merely the product of his suggestibility, as this would "usurp the exclusive function of the jury to weigh the evidence and determine credibility." United States v. Brooks, 64 M.J. 325, 328 (C.A.A .F.2007). Specifically, the military judge expressed his concerns that "he is interposing his own judgment for that of the members" and "you're asking him to interpose his own judgment about whether or not the interrogation conducted by CID may have been suggestive or not. That's not for him to say. That's for the members to decide."   Click here for the complete decision.     

(Dr. Christian Meissner testifies on false confession issues - Jury finds defendant guilty)

In Dodson v. State (2008) the the jury convicted Kira Lynn Dodson of capital murder, and the trial judge assessed a mandatory life sentence. In two issues, appellant contends the evidence is legally and factually insufficient to support the conviction. We affirm. It is interesting to note that at trial, "Dr. Christian Meissner, an assistant professor of psychology and criminal justice, testified on appellant's behalf as an expert on false confessions. According to Meissner, interrogation techniques that lead to gaining a true confession from a guilty person may also lead to receiving a false confession from an innocent person. Generally, the interrogation process contains three phases: isolating the suspect in a room and building rapport phase, confrontation phase, and minimizing the suspect's perception of the consequences phase. There are several factors that may determine whether an individual gives a false confession, including the suspect's age, the length of time the suspect is interrogated, and whether interrogation takes place in the middle of the day as opposed to the middle of the night. Meissner also testified his career has been as an academic, he had no experience in conducting law enforcement investigations, and he could not tell the jury whether appellant's confession was true or false."
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James Walker

 

(Jury rejects testimony from Dr. James Waker of false confessions and suggestibility)

In State v. Clark (2012) the jury found the defendant guilty of multiple charges of rape of a child and aggravated sexual battery, even though defense expert Dr. James Walker testified "that he evaluated the Defendant for propensity to be unduly suggestible or overly compliant in interrogation." He also evaluated the Defendant for personality characteristics that might lead him to give a false confession or false implicating statement. He further testified that the defendant "was susceptible to leading questions in an interrogation situation and that the person would be much more likely than the average person to make false admissions."   
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James Stark

 

(Testimony from defense expert Dr. James Stark on false confessions excluded)

In Humphrey v. Riley (2012) the Supreme Court of Georgia upheld the trial court's decision to exclude the testimony of defense expert Dr. Stark on police interrogation tactics and the possibility that false confessions result from such tactics. The trial court excluded the testimony, reasoning that "false confession theory ha[d] not reached a verifiable stage of scientific certainty" and noting that "the knowledge that a false confession c[ould] be obtained from a suspect by police [wa]s not beyond the ken of the average juror."


The Supreme Court stated that "We find no prejudice from trial counsel's alleged deficiency for two reasons. First, as we noted on direct appeal, the question of whether someone might be persuaded to give a false confession through persuasive interrogation techniques is "not beyond the ken of the average juror," and, therefore, the absence of expert testimony on that question would not be prejudicial... Indeed, a review of the trial record reveals that trial counsel clearly set the issue of interrogation techniques before the jury through the cross-examination of the investigator who obtained Riley's inculpatory statement and who readily admitted using such techniques with Riley... Second, we have held that testimony from the very expert relied upon by Riley in his habeas hearing was properly excluded in another case, demonstrating that similar testimony would have been properly excluded at Riley's trial."  
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Pamela Auble

 

(Jury rejects testimony that the Reid Technique risks unreliable and untrustworthy statements)

In Rogers v. State (2012) the Court of Criminal Appeals of Tennessee at Nashville, affirmed the denial of post-conviction relief after the defendant had been convicted of first degree murder, and subsequently filed an appeal. During the trial, Dr. Pamela Auble, admitted as an expert in neuropsychology and clinical and general psychology, testified that, at post-conviction counsel's request, she evaluated statements the Petitioner gave to law enforcement in order to determine whether his statement had been coerced. As part of her testimony she stated that "The purpose of police interrogation is to elicit statements from defendants that describe their role in the alleged offense. The Reid technique is the most commonly employed strategy to accomplish this goal.... The Reid technique can be reduced to three processes: 1. Isolation in an interrogation room; 2. Confrontation or maximization in which the suspect is accused of the crime, presented with evidence, and blocked from denial; 3. Minimization in which the crime is morally justified and sympathy is feigned." The jury rejected the suggestion that the defendant's incriminating statements were unreliable or coerced in any way.


[It should be noted that Dr. Auble erroneously repeated several mischaracterizations of the Reid Technique that are often espoused by Dr. Richard Leo and others -
see this document

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Alan Hirsch

(Court rejects the testimony of Professor Alan Hirsch - no evidence the Reid Technique produces false confessions) 

In US v. Jacques (2011) the US District Court of Massachusetts rejected the proffered testimony of defense expert Professor Alan Hirsch on the issue of false confessions, stating, in part, that:

"This court excluded Professor Hirsch's testimony on two principal grounds: (1) he lacked specialized knowledge that would assist the jury in understanding or weighing the evidence; and (2) his testimony was not based on sufficient facts or data and did not involve the application of reliable principles or methods to the facts of this case."

In his testimony Professor Hirsch indicated that the Reid Technique generated false confessions, but could provide no evidence to support this position as the court pointed out:

"Professor Hirsch's criticism of the Reid technique appeared, at one point in his testimony, to be that it increased the overall number of confessions, both true and false.... ("I want to be very clear that, number one, the Reid Technique is too effective. The problem is not that it's ineffective. It breaks down guilty suspects. The problem is that it also breaks down innocent suspects.").) Again, he failed to point to any data supporting even this position, which does not address the central issue here: the relative frequency of false confessions and the factors contributing to it.

In sum, the proffered expert testimony to the effect that the Reid technique enhanced the risk of an unreliable confession lacked any objective basis for support whatever. Although Professor Hirsch insisted that "there is a wealth of information about the risks of the Reid technique," he could point to none.... It is true, as able defense counsel pointed out, that all science is not the same, and in the area of false confessions the kind of strictly mathematical support available in other areas may be lacking. But some objective basis other than say-so must be offered, and none was." 
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Samuel Roll

 

(Court limits the testimony of expert witness Dr. Samuel Roll on the issue of false confessions)

In US v. Ganadonegro (2011) the US District Court, D. New Mexico, limited the testimony of expert witness Samuel Roll on the credibility of the defendant's statements.

During a suppression hearing at the trial, Dr. Roll testified as follows: "Based on his examination of Ganadonegro and the tests he administered to Ganadonegro, Dr. Roll concluded that Ganadonegro has low verbal skills, because, although his overall intelligence is in the forty-second percentile, his verbal I.Q. is at the eighteenth percentile and his verbal comprehension is in the twelfth percentile... Dr. Roll also concluded that Ganadonegro has a low estimate of his personal worth and experiences low self-esteem and limited self-confidence...Dr. Roll concluded that Ganadonegro has a deficient in attention and concentration, and that his capacity to coordinate and organize data, and weigh it for contradictions and consequences, falls below most people's skill level...Dr. Roll concluded that Ganadonegro demonstrated impairment of reality-testing capacities in which he tends to misperceive events, and tends to form mistaken impressions of people and what their actions signify...Dr. Roll also concluded that Ganadonegro is susceptible to episodes of depression...Based on these conclusions, Dr. Roll concluded: "There are a host of language factors, cultural factors, and personality factors that would have increased the probability of ... Ganadonegro making false admissions. (emphasis added) Only an interview with the situational factors ameliorated and his personality dispositions taken into account could produce any reliable pattern of admissions on his part."

Upon their review of the case, the District Court ruled that "The Court will thus exclude Dr. Roll's testimony insofar as it relates to the credibility of Ganadonegro's statements in the interview..... the Tenth Circuit's opinion strongly suggests that Dr. Roll's testimony that there are a host of language factors, cultural factors, and personality factors that would have increased the probability of Ganadonegro making false admissions does little more than vouch for the credibility of Ganadonegro's statement, and thus encroaches on the jury's exclusive function to make credibility determinations.  
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E. Clay Jorgensen

 

(Court rejects expert testimony of E. Clay Jorgensen, Ph.D.)

 
In State v. Sam (2009) the Court of Appeals Washington, upheld the trial court's decision not to allow E. Clay Jorgensen, Ph.D., an expert witness hired by the defense to evaluate the voluntariness of Mr. Sam's statements, to testify. The court found that "Mr. Jorgensen did not make a diagnosis, and "testimony about traits is ... disguised character evidence." The court stated, "I have a real problem with whether this is also inappropriate character evidence, disguised character evidence, rather than being something serious that the jury could consider from an expert." Id. The court further reasoned, "I do believe that an argument can be made, without an expert, that the jury would understand."
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Jarvis Wright

 

(Court refuses to let Dr. Jarvis Wright testify on false confessions)

In Munoz v. State (2009) the Texas Court of Appeals, El Paso upheld the trial court's decision to reject the testimony of Dr. Jarvis Wright. In their decision they pointed out that "In Point of Error Four, Appellant argues that the trial judge erred in refusing to allow Dr. Jarvis Wright's testimony relating to the field of false confessions. The testimony was intended to rebut the confession and Appellant's admission that he hit Xavier's head on a bedpost.

At the hearing conducted outside the presence of the jury, Dr. Wright testified that the field of false confessions was a relatively new area and an emerging field with which Dr. Wright was familiar by having read recent literature. Dr. Wright explained that psychologists in the field have identified several factors which indicate an increased likelihood that a given confession is false. These factors included the interrogation techniques used, low intelligence, lack of familiarity with law enforcement, and susceptibility to suggestion. Appellant did not intend to ask Dr. Wright to give an opinion as to the truth or falsity of Appellant's confession, but only to testify to a theory that false confessions occur and that the existence of certain factors make it more likely that a specific confession is false. Dr. Wright never interviewed, observed, or tested Appellant, nor had he ever written on, or conducted any testing in the field of false confessions. Dr. Wright's qualification to testify as an expert was that he had read literature on the topic and the basis of his testimony was that he had reviewed Appellant's confession and school records.

Based on our evaluation of the testimony and application of the Kelly factors for reliability of scientific theory, we find that the Appellant did not meet his burden of providing by clear and convincing evidence that Dr. Wright's testimony was reliable and therefore relevant. Dr. Wright's testimony could not have assisted the jury in understanding the evidence or in making a determination of a fact issue. Dr. Wright did not intend to offer an opinion as to the truth or falsity of the Appellant's confession. During cross-examination Appellant admitted the truth of the portions of his confession that he earlier claimed were inaccurate. The trial court's decision to exclude Dr. Wright's testimony regarding false confessions is within the zone of reasonable disagreement. The trial court did not abuse its discretion in excluding it. Point of Error Four is overruled."
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Christopher Lamps

 

(Court rejects the testimony of expert witness Dr. Christopher Lamps on the issue of confession voluntariness)

In T.C., a minor v. State (2011) the Court of Appeals of Arkansas upheld the trial court's decision to reject the testimony of expert witness Dr. Christopher Lamps. The defendant argued that "the trial court ignored crucial testimony from Dr. Christopher Lamps, who concluded that appellant did not freely, voluntarily, or intelligently waive his rights. The trial court found that Dr. Lamps's testimony was given in generalities that young children would not be able to understand the implications of waiving the right to an attorney. However, appellant argues that the doctor specifically testified that appellant was not able to make a knowing or intelligent decision in this case.

"...the trial court was free to reject Dr. Lamps's opinion on this or any issue. See Haynes, supra. The trial court listened to the testimony and viewed the same taped statements upon which Dr. Lamps based his opinions and concluded that the confession was not the result of any threats or inducements, but was given of appellant's own free will with knowledge of the circumstances. Further, coercion cannot be presumed because what was said to appellant between 6:45 p.m. and 10:20 p.m. was not recorded. There was no evidence that appellant was made any promises or subjected to any threats or coercion during this time.... Appellant asks this court to assume that a promise was made. However, this assumption flies in the face of the evidence, which included specific and unequivocal denials by all officers that appellant was promised anything. Accordingly, we affirm."  
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Jeffrey Vanderwater-Piercy


(Court does not allow expert testimony by Dr. Jeffrey Vanderwater-Piercy concerning false or coerced confessions)

In Ruiz v. State (2010) the Court of Appeals of Indiana upheld the trial court's decision to exclude the testimony of Dr. Jeffery Vanderwater-Piercy. From the court's opinion:

"Ruiz's counsel wanted to present expert testimony by Dr. Jeffrey Vanderwater-Piercy concerning false or coerced confessions. The Doctor is a licensed clinical psychologist who had practiced for twenty years and had testified as an expert fifty times. However, he had never been qualified in any court as an expert on coerced confessions specifically.

At the time of the hearing on the admissibility of the testimony, the Doctor had not yet conducted any testing of Ruiz, but if his testimony were to be admissible, the Doctor would examine Ruiz to determine if he had any personality traits that would make him susceptible to police influence and whether the police interrogation was psychologically coercive. The Doctor had examined five other defendants for the possibility of false confession but had not found any evidence those confessions were coerced.

The court declined to allow the Doctor's testimony because although the Doctor "possesses extensive psychological knowledge and experience," (App. at 149), his testimony "would not assist the triers [sic] of fact in this case to understand scientific, technical or specialized evidence or to determine a fact in issue," ( id. at 149-150), and it would "be likely to cause unfair prejudice, to confuse the issues or to mislead the jury." Affirmed.   
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Bobby Miller

(Court rejects psychiatrist Bobby Miller, M.D., as an expert witness on false confessions)

In State v. Black (2010) the Supreme Court of Appeals of West Virginia upheld the lower court's decision to reject the testimony of psychiatrist Bobby Miller, M.D. on the basis that "this testimony does not come up to any standards of reliability as far as scientific testing go[es],..."    Click here for the complete decision.

Karen Fukutaki

(Court does not allow Dr. Karen Fukutaki to testify as an expert witness on confession voluntariness)

In Gruwell v. State (2011) the Supreme Court of Wyoming upheld the lower court's decision to exclude the testimony of Dr. Karen Fukutaki as to the "voluntariness of the confession and the psychology relating to confessions" due to the defendant not properly notifying the prosecution of their intent to call this witness in a timely manner.  Click here for the complete decision.

John Di Bacco

(Court rejects the testimony of expert witness Dr. John DiBacco on the issue of coercive interrogation techniques)

In US v. Preston (2011) the U.S. District Court, D. Arizona, upheld the admissibility of the defendant's confession and rejected the testimony of expert witness Dr. John DiBacco, stating the following: "During the course of the interview, the agents asked Defendant suggestive questions such as whether it was a one-time event, whether the victim pulled down his own pants, whether Defendant unzipped his own pants or pulled them down, whether Defendant put on a condom, whether and for how long he penetrated the victim, whether he threw the condom away, etc. In response to these questions, Defendant made some admissions. At the end of the interview the officers wrote out a document which they represented to Defendant could contain his apology to the victim. In the document, the officers summarized the confessions that they had obtained from Defendant, included an apology to the alleged victim, and had Defendant review and sign the document, which he did.

At hearing, Defendant called Dr. John DiBacco as an expert witness. Dr. DiBacco offered evidence that the interview technique used by the agents was inappropriate and persistent; and that Defendant may be susceptible to the inappropriate questions and promises made by agents because he is substantially below average in his communication and comprehension skills. Dr. DiBacco further testified that Defendant has been in special education courses as a result of these poor verbal communications skills. Under such circumstances Defendant's expert opined, Defendant might have been willing to say what he perceived his questioners wanted him to say to bring the interview to an end."

The District Court found that "Having assessed the nature of the interrogation at issue, and the extent of Defendant to resist the pressure brought upon him by the agents, the Court is of the opinion that the government has met its burden that the statements were not the result of Defendant's will being overborne."  Click here for the complete decision.

Mark Vigen

(Court rejects the argument made by expert psychologist Dr. Mark Vigen that the defendant was susceptible to police manipulation)

In State v. Blank (2011) the Court of Appeal of Louisiana, Fifth Circuit, upheld the trial court's decision to admit the defendant's statements even though he had offered the testimony of Dr. Mark Vigen, an expert psychologist, "who described him as an illiterate and easily manipulated individual who was confronted by multiple law enforcement officers and then taken to a strange office for interrogation where, over the course of many hours, he finally broke down. Blank asserts that, under the circumstances of this case, the emotional stress upon him was sufficient to vitiate his consent, contrary to the trial judge's belief."  Click here for the complete decision.

Scott Bresler

 

(Court rejects the testimony of Dr. Scott Bresler on false confession issues)

In State v. Craven (2010) the Court of Appeals of Nebraska upheld the lower court's decision to reject the testimony of Dr. Scott Bresler on false confession issues. As the Court of Appeals stated in their opinion, "Upon our review of the testimony of Bresler, which Craven wished to present to the jury, it is clear that the theory regarding false confessions was still being tested and subjected to peer review and publication, had no known rate of error, and had no specific standards to control its operation. Furthermore, the ultimate conclusion to be given to the jury by Bresler was not that of an "expert opinion" but merely a tool to assist the jury in its determination of the facts...... The jury had an opportunity to view the interview twice during the trial and to draw its own conclusions regarding the interview. Therefore, we find that the district court did not abuse its discretion by excluding the testimony of Bresler."  
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Robert Latimer

 

(Court excludes the testimony of psychiatrist Dr. Robert Latimer)

In State v. Rosales (July 2010) the Supreme Court of New Jersey upheld the lower court's decision to exclude the testimony of Dr. Robert Latimer. In this case the defense retained the services of "psychiatrist Dr. Robert Latimer, who met with defendant on three occasions at the prison. Dr. Latimer also reviewed most of the discovery materials generated from the investigation. In his September 22, 2005 letter-report, Dr. Latimer opined that defendant "ha[d] been vulnerable to severe anxiety and panic due to the power of the interrogation setting." He concluded that defendant's "will was overcome to the point where he confessed to a crime he did not commit."

The defendant submitted a March 23, 2006, supplemental letter-report prepared by Dr. Latimer in which the doctor referenced the works of several authorities on false confessions. Dr. Latimer noted that his testimony would "entail a psychological interpretation of defendant's fear-stricken, panicky reaction to direct death threats," and that the issues were beyond the knowledge of the average person. He explained that "during a stressful interrogation, the stress of denial becomes stronger than the stress of admitting[, and a]t that point, the suspect can easily break and issue a false confession." The State opposed the motion, arguing that Dr. Latimer's opinions were based on generalizations and were not tied to a recognized clinical diagnosis of defendant.

"Based on the record before it, the trial court concluded that Dr. Latimer failed to proffer "scientifically reliable evidence that would truly assist the trier of fact."
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Solomon Fulero                   

(Court rejects the testimony of Dr. Sol Fulero)

In State v. Langley (2011) the Court of Appeal of Louisiana, Third Circuit, the court upheld the trial court's decision to reject the testimony of Dr. Sol Fulero on the basis that "the judge indicated that he did not think the testimony would assist him in reaching a decision regarding whether the defendant gave a false confession."
Click here for the complete decision.             

(Another Court excludes the testimony of Dr. Solomon Fulero)

In United States of America ex rel. Tenisha Carter v. Transcoso (2011) the US District Court, N.D Illinois, upheld the lower court's exclusion of the testimony or Dr. Solomon Fulero.  In their opinion the District Court stated that, "Dr. Fulero's testimony was offered to show that Carter's environment was coercive and likely to lead to a false confession given her mental state as a juvenile. While these issues are related, it is by no means clear that Dr. Fulero's testimony would have been directly on point, as Carter claims. In fact, it is telling that Carter does not rely whatsoever on evidence Fulero would have introduced in arguing that the state court improperly decided that there was no seizure until Carter confessed. Thus, the Court cannot find that the state court's evidentiary ruling regarding Dr. Fulero's arguably unrelated testimony, which Carter had the opportunity to contest in state court, deprived Carter of a full and fair opportunity to be heard." 
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(Kentucky Supreme Court ruled that the trial court should have allowed false confession expert Dr. Solomon Fulero to testify)

In Terry v. Commonwealth (2010) the Kentucky Supreme court ruled that the "Trial court's improper exclusion of expert testimony on behalf of defendant regarding general scientific principles and studies surrounding police interrogations, on grounds that defendant failed to disclose witness prior to trial, was not harmless error in murder prosecution; defendant testified to coercive nature of interrogation, essential question presented at trial was whether defendant's confession was reliable, and denial of expert denied defendant a context and foundation supporting his only defense of calling confession into doubt."   Click here for the complete decision.                    

(Court limits the testimony of false confession expert Dr. Solomon Fulero)

In Williams v. Brunsman (2010) the US District Court, S.D. Ohio, upheld the trial court's decision to limit the testimony of Dr. Solomon Fulero on false confession issues. The trial court's decision was:


"Prior to trial, appellant moved to permit the testimony of Dr. Fulero, and the trial court held a hearing pursuant to Evid. R. 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993), 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469. Following this hearing, the trial court permitted Dr. Fulero to testify as an expert at trial, consistent with the U.S. Supreme Court's decision in Crane v. Kentucky (1986), 476 U.S. 683, 106 S.Ct. 2142, 90 L.Ed.2d 636, regarding his knowledge of psychological law enforcement interrogation techniques and the impact they may have on inducing false confessions. However, the trial court specifically excluded testimony, " * * * regarding the number of wrongful convictions or circumstances relating to other cases of claimed wrongful prosecutions and/or convictions based on false confessions, past or present * * *."
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Mark Costanzo                      

(Court excludes the testimony of Dr. Mark Costanzo)

In People v. Purcell (2011) the California Court of Appeal, Second District, upheld the lower court decision to exclude the testimony of Dr. Mark Costanzo on the issue of  false confessions, indicating that, "At trial, appellant recanted his confession. He returned to his original description of the murder as Baltazar shooting Willis in anger at Willis's complaints about the cost of appellant's proposed carpentry work. He testified he falsely confessed to shooting Willis in order to ensure his family's safety. In support of his recantation, appellant offered the testimony of Dr. Mark Costanzo, an expert in police interrogation techniques and false confessions. Dr. Costanzo was prepared to opine for the jury that sheriff's investigators had used two techniques likely to induce a false confession: telling appellant he had failed a "fake" lie detector test, and promising him leniency if he told investigators the truth. The trial court excluded Dr. Costanzo's testimony in both trials."  Click here for the complete decision.                 

In People v. Martinez (2008) this case the Court of Appeal upheld the trial court's decision to exclude the testimony of Mark Costanzo on why people make false confessions. "'Expert opinion is not admissible if it consists of inferences and conclusions which can be drawn as easily and intelligently by the trier of fact as by the witness.'... A trial court may exclude the testimony of a false confessions expert where the defendant's testimony about why he falsely confessed is easily understood by jurors."
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Daniel Grant

(Court rejects expert testimony of defendant's limited mental capacity and suggestibility)

In Vance v. State (June 2011) the Supreme Court of Arkansas upheld the Circuit Court's decision to reject the testimony of Dr. Daniel H. Grant, a neuropsychologist and expert in forensic psychology, and Dr. Stephen Greenspan, an expert in psychology and developmental disabilities. Dr. Grant's testimony was that "he had conducted numerous tests on Appellant over the course of two days and determined that Appellant had a full scale IQ of 75, which placed him in the fifth percentile. He opined that Appellant had cognitive impairments or deficits involving language and memory. Dr. Greenspan, who had recently authored a book on the effect of cognitive impairment on a person's tendency to engage in foolish or gullible behavior, testified that people with limited intelligence are much more likely to give false confessions. In addition, Dr. Greenspan explained that persons with cognitive impairments have a "need to look more normal than they really are to cover up their limitations," so they confabulate or "fak[e] knowledge that they don't have," and when the veracity of their account of an event is challenged, they change what they are saying "to create the appearance of competence ... or to get the people who are questioning them to leave them alone." Dr. Greenspan acknowledged that he had not interviewed Appellant but had reviewed the transcripts and tapes of Appellant's statements to police; he opined that he "saw lots of evidence of what I would consider confabulation as reflected in the fact that [Appellant] gave many different versions often changing the same version on a dime basically." The circuit court stated that, after hearing the foregoing proffered testimony, it was even more convinced that to allow such testimony would be to invade the province of the jury."

The Supreme Court of Arkansas ruled that "We see no abuse of discretion in such a ruling. Appellant had ample opportunity to cross-examine the officers who took his statements. In addition, the jury viewed a videotape of one of Appellant's statements and heard an audio recording of two others. The proffered testimony was not beyond the ability of the jury to understand and draw its own conclusions. Since Dr. Greenspan opined that Appellant was confabulating, the proffered testimony would have invaded the jury's function as trier of fact."  Click here for the complete decision.

Rosalyn Shultz

In State v. Wright (2008) the Court of Appeals upheld the trial court's decision to exclude the testimony of forensic psychologist Dr. Rosalyn Shultz who sought to testify about factors which lead people to make false confessions "and the would have opined that Appellant possessed certain of those characteristics which tend to be present in people who make false confessions." The Appeals court stated that such testimony would "Invade the province of the jury."
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Susan Garvey

In Downs v. Virginia (2006) the defendant appealed saying that "the trial court erred in refusing to allow Dr. Susan Garvey to testify regarding Downs' "suggestibility and a psychological diagnosis." Earlier in the trial the defense had called Dr. Solomon Fulero, a nationally recognized expert in the area of false confessions, as an expert witness. Dr. Fulero testified about factors and circumstances that can lead to a false confession and described the personality characteristics of a person likely to confess to a crime they did not commit. The court only allowed Dr. Fulero to testify generally about false confessions and did not allow Dr. Fulero to testify about Downs specifically because he had never examined her." The following day the defense sought to have Dr. Garvey testify as a second expert. Dr. Garvey is a psychologist who had examined Downs prior to trial in order to determine whether she was competent to stand trial. Although Dr. Garvey had never previously qualified as an expert on false confessions, her report concluded that Downs had "personality characteristics ... consistent with the type of individual who would be prone to making a false confession." Based on her prior examination of Downs, Dr. Garvey intended to testify about two of the "false confession factors" identified by Dr. Fulero, specifically, "suggestibility and a psychological diagnosis." The trial court held that the jury did not need "expertise" to assist them in assessing whether Downs had the type of personality that Dr. Fulero described as being susceptible to giving a false confession. The Court of Appeals agreed.
Click here for the complete opinion.

Allison Redlich

(Court offers scathing rejection of false confession expert Dr. Alison Redlich)

 

In People v. Oliver (July 2014) the Supreme Court, Kings County, New York rejected the testimony of false confession expert Alison Redlich.  In their opinion the court stated the following:

 

"Dr. Alison Redlich, one of a small group of social scientists who have repeatedly proffered themselves as experts on the subject of false confessions, describes herself as an expert in "the areas of social influence, decision making, scientific methods, and specifically interrogation techniques and confession." She asserts that her testimony "will give jurors a more accurate understanding how to weight [sic] the confession itself and how to avoid using inaccurate cues and assumptions to judge the truthfulness of the confession and/or the defendant's testimony about his confession," yet her proffer makes no reference to the defendant at all, nor to the particular circumstances of this case. Instead, she has provided what appears to be a general treatise on the subject of false confessions. For that reason alone, her proposed testimony does not meet the threshold standard required by the Court of Appeals-that the proposed testimony be relevant to the particular facts of the case before the court.

 

Moreover, while Dr. Redlich has impressive academic credentials, there are serious reasons to question the extent of her expertise, the legitimacy of the theories she propounds, and her objectivity. The Bedessie court's recognition that a qualified professional may, in the appropriate case, provide testimony about the factors that could induce a person to testify falsely does not mean that every researcher who claims an expertise in this area should be permitted to testify....  In other words, the mere assertion by the proposed expert that she is in fact an expert is not a basis to admit her testimony.

 

Similarly, the Court is not required to accept Dr. Redlich's assertion that her theories are "generally accepted among scientists," especially since many of the researchers she includes in that group are the very researchers whose testimony has been consistently rejected by New York courts. ( See cases cited infra.). As some of those cases make plain, the "relevant scientific community" is not at all unanimous about false confession research, the methods employed by Dr. Redlich and her colleagues, and the conclusions they reach. Dr. Michael Welner, a board certified psychiatrist, is of the opinion that false confessions are "rare events," and that the only way to determine whether a confession is actually false is through DNA testing that disproves the guilt of the confessing defendant. People v. Teon Williams, supra. According to Dr. Welner, it is only through "rigorous psychological and psychiatric examinations" that a professional can determine whether a person is susceptible to confessing to a crime he did not commit. He dismisses the theories Dr. Redlich and her colleagues advocate as "soft science," pointing out that some of the research actually relied on newspaper reports of cases as sources of allegedly false confessions. People v. Lowery, supra. See also U.S. v. Wilson, NMCCA 200300734 (U.S. Navy–Marine Corps Court of Criminal Appeals 2007) (expert opined that Dr. Olfshe's theories were "not sufficiently tested," have an "unacceptably high rate of error," "depart from accepted standards," and are not "accepted in the relevant scientific community.").

 

There is even dissension among the researchers that Dr. Redlich cites. One of them, Dr. Saul Kassin, has conceded that there is no "scientific basis for distinguishing true from false confessions," that "further research in the field is sorely needed," and that lay people may be able to assess whether confessions are in fact false.... Dr. Redlich herself has admitted that her theories cannot be tested empirically.

 

An examination of Dr. Redlich's submission in this case underscores the wisdom of the decisions rejecting this particular brand of false confession testimony. Like the testimony proffered in Bedessie, Dr. Redlich's report is filled with speculation, unsupported theories, and advocacy rather than expertise. There is no empirical support for many of her assertions. For example, she maintains that there is "an alarmingly high incidence of wrongful convictions," and that "[a]pproximately 25%" of this unidentified number "involve false admissions." But her premise is itself unscientific. She does not quantify the supposedly "alarmingly high incidence" of wrongful convictions, does not detail how a conviction is determined to be "wrongful," and does not explain the method or formula by which a confession is determined to be false.

 

There is similarly no support for Dr. Redlich's hypothesis that jurors are incapable of entertaining the possibility that a confession could be false. The jury system is premised on the ability of citizens to determine whether particular evidence is true or false. Perhaps the best refutation of Dr. Redlich's mistrust of a jury's competence in this regard is a case in which she had first-hand involvement, Edmonds v. Mississippi, supra. The defendant in that case, a juvenile, confessed to helping his stepsister kill her husband. The trial court precluded Dr. Redlich's testimony as insufficiently reliable, a decision that the appellate court upheld, while reversing Edmonds' conviction on other grounds and remanding for a new trial. The jury at the second trial heard the evidence of the defendant's confession and acquitted him, obviously fully capable of weighing the evidence without any assistance from Dr. Redlich.

 

Another pillar of Dr. Redlich's thesis is the role that police interrogation methods play in false confessions. This part of her theory also suffers from multiple flaws. A review of her curriculum vitae reveals that Dr. Redlich has never worked in any law enforcement capacity, nor does she articulate the basis of her theoretical expertise. She is nonetheless critical of law enforcement in general, and police interrogations in particular, which she describes as "confidence games" with "strategies based on the manipulation and betrayal of trust." Given these views, it is difficult to envision an interrogation of which she would approve. In any case, while she is a critic of the police, the Court does not accept her statement that she is an expert in police methods, at least insofar as this case is concerned.

 

Dr. Redlich does not appear to know anything about police practices in New York City, as demonstrated by her descriptions of particular interrogation methods. She assumes that all police departments use the same interrogation methods, including the "Reid Technique," which Dr. Redlich labels the "bible of police interrogation," as well as a Behavioral Analysis Interview, the importance of which, Dr. Redlich opines, "cannot be understated [sic]." Dr. Redlich also maintains, again without explanation, that "police have developed methods to get suspects to talk outside of Miranda.' " Another hallmark of all police questioning, according to the doctor, is a three phase process: 1)" custody and isolation" in which the suspect is "detained in a small room" to "experience the anxiety, insecurity, and uncertainty" of police questioning; 2) "confrontation," in which the suspect is "presumed guilty," "told (sometimes falsely) about the evidence" against him, and is "prevented from denying his/her involvement in the crime," and; 3) "minimization," where a "now sympathetic interrogator attempts to gain the suspect's trust," offers "face-saving excuses," and "implies" that the suspect will get a shorter sentence if he confesses, and a longer one if he does not.

 

Conspicuously absent from Dr. Redlich's submission is any scientific connection between these techniques and false confessions; there are no statistics about the number of false confessions caused by the utilization of the techniques. See People v. Lowery, supra. More important, there is simply no evidence that the New York City Police Department uses the "Reid technique," let alone any evidence that the investigating detective in this case did. In fact, Detective Angst's testimony on cross examination demonstrates exactly the opposite:

 

"Q: And when you first became a detective you went through extensive training in interrogation techniques and other aspects of detective work, right?

 

A: No.

 

Q: When did you first undergo interrogation training?

 

A: When I got to the detective squad.

 

Q. What did that training consist of?

 

A: Just mostly paperwork and interviews.

 

Q: Were you trained in methods of trying to get suspects to make admissions and confessions?

 

A: No

 

Q: You never got training in that?

 

A: In a method, no.

 

Q: Now, detective, have you ever been trained in isolation techniques for a suspect?

 

A: No."

 

The detective also denied that he said anything to the defendant about the consequences of a conviction for killing or injuring the child, or anything about a possible sentence. The fact that the detective did not employ the techniques that are central to Dr. Redlich's theories is yet another reason to preclude her testimony.

 

Nor does this case have any of "commonalities" that Dr. Redlich says exist in so-called "proven" false confession cases. According to her, false confession cases typically involve juveniles or people with mental impairments, and are characterized by very long interrogations where the suspect is isolated and deprived of sleep. The police employ deceit and trickery, and there is often little or no corroborating evidence. Even accepting all of Dr. Redlich's analysis at face value—a dubious proposition, since this section is also long on anecdotes and generalizations and short on science—none of her theories has anything to do with the facts of this case. See Rathbun v. Scribner, 2010 U.S. Dist. LEXIS 31520 (C.D.Cal.2010).

 

The defendant is not a juvenile, and has no mental or intellectual deficits. He was never isolated or in police custody; on the contrary, he appeared at the precinct of his own accord, with his family, in the middle of the day. The only person who was deprived of sleep appears to be the investigating detective, who did not know the defendant was coming in, and was just leaving the precinct after having worked for two straight days. The interrogation itself was slightly less than three hours, well below what Dr. Redlich deems excessive. Moreover, there is evidence that corroborates the details of the defendant's confession. Other witnesses are apparently prepared to say that the defendant was alone with the baby at the time the fatal injuries were inflicted. Most significant, the defendant's recorded telephone conversation with his relative confirms what he said to the police.

 

Thus, even assuming for argument's sake that Dr. Redlich's proposed testimony had the requisite acceptance in the relevant scientific community, it has no relevance at all to this case. It would not aid the jury at all, and meets none of the criteria outlined in Bedessie. The Court therefore denies the defense application to introduce her testimony.

 

Click here for the complete decision.

 

 (Testimony of Dr. Allison Redlich on false confessions excluded by the court -  testimony's probative value was outweighed by its potential to confuse or distract the jury)

 

In Commonwealth v. Hoose (2014) the Supreme Judicial Court of Massachusetts upheld the lower court's decision to exclude the testimony of Dr. Allison Redlich on the issue of false confessions, stating that "it was not an abuse of discretion to exclude the expert testimony where the judge could have concluded also that the testimony's probative value was outweighed by its potential to confuse or distract the jury."  From their opinion the Supreme Court stated the following:

 

"...the defense proffered that Dr. Redlich's testimony would be limited to the fact that false confessions do occur, that they are an area of scientific study, and that there are certain factors related to interrogation methods and the internal disposition of individual suspects that have been identified as commonly occurring among false confessions. The defendant argued that such testimony would be helpful to the jury in assessing the reliability of the defendant's statements to police.

 

... After hearing argument on the Commonwealth's motion, the judge decided to take testimony from the expert witness in voir dire to determine whether such testimony should be admitted for the jury's consideration... The judge limited the subject of the voir dire to the witness's proffered opinion regarding the concept of false confessions as an area of scientific research, the factors that may contribute to such confessions, and any connection this information would have to the defendant's case and the jury's assessment of the evidence.

 

Dr. Redlich explained that as a result of this research, a taxonomy of false confession "types" has been identified... and certain factors have been linked to proven false confessions.... Based on her review of the defendant's recorded statements, Dr. Redlich also opined on those false confession factors that were present in the defendant's case... Additionally, Dr. Redlich acknowledged that no studies have been conducted comparing the prevalence of these factors among false confessions to either "true" confessions or all confessions. Furthermore, Dr. Redlich testified that the studies based on proven false confessions that have been used to identify these relevant factors were based on a sample size of approximately 150 to 200 proven false confessions.

 

At the conclusion of the Lanigan hearing, the judge ruled that the expert testimony could not be admitted in evidence because the principles and methods on which Dr. Redlich's opinions were based had not been shown to be sufficiently reliable to go before the jury. The judge emphasized that the research studies that identified the factors linked to false confessions were based on a limited sample size of proven false confessions and that no research or information would come before the jury regarding how frequently such factors also may be present in true confessions.

 

Thus, in light of the limited number of false confession factors present in this case, combined with the lack of evidence before the jury calling into question the veracity of the defendant's statements, the judge may have concluded that the proffered expert testimony was not relevant and would have distracted or confused the jury by giving rise to speculation based on facts and assumptions not in evidence.... Therefore, it was not an abuse of discretion to exclude the expert testimony where the judge could have concluded also that the testimony's probative value was outweighed by its potential to confuse or distract the jury.

 

We do acknowledge, however, that the phenomenon of false confessions is a growing area of psychological and social science research, and we are mindful that false confessions have been demonstrated to occur even in the context of serious crimes, including murder.... Therefore, we do not foreclose the possibility that under appropriate circumstances this sort of expert testimony could be relevant to a defendant's case and helpful to a jury.....  Although the precise number of false confessions or prevalence data regarding false confession factors may never be identified, as research regarding factors present in proven false confessions continues to progress, information regarding these factors may be helpful in certain circumstances. For example, should a case arise in which a defendant attacks directly the veracity of his or her statements to police and where several of the false confession factors thus far identified are present, it may be appropriate for expert testimony of the sort proffered here to be taken into consideration....  Therefore, we leave further development of this issue for another day."

Click here for the complete decision.

In the case of Edmonds v. State (2006) the Court of Appeals of Mississippi upheld the trial court's decision to reject the testimony of Dr. Allison Redlich. From their opinion the court stated:

"After a day-long, pre-trial Daubert hearing on whether Dr. Redlich would be allowed to testify, the trial judge entered an order finding that Dr. Redlich's proposed testimony did "not satisfy the dictates of Mississippi Rule of Evidence 702 and will be excluded." In its order, the court pointed out that "Dr. Redlich admitted that there is no empirical test available to determine whether a confession is truthful or not. Redlich also admitted that the hypothesis of false confessions cannot be tested empirically. Dr. Redlich testified that it would be impossible to do an empirical test of false confessions because to do so would require taking juveniles to police stations and accusing them of crimes they had not committed. The court found that, overall, "Redlich indicated that there was very little study of false confessions and juveniles."

Click here for the complete decision

Tom Wright

In Flowers v State (2007) the Supreme Court of Arkansas upheld the admissibility of the defendant's confession, even though he claimed an IQ of 57-62, and upheld the trial court's decision to refuse to allow the defense expert Dr. Tom Wright to testify that the defendant's IQ range precluded him from making a competent waiver of his Miranda rights.   Click here for the complete case.

Gregory DeClue

(Characteristics of a defendant who gave a false confession)

In Floyd v. Cain (2011) the Supreme Court of Louisiana ruled that "Considering all of the evidence, including Floyd's false confession to the murder of Robinson, Floyd's low IQ and susceptibility to suggestion, the missing police records, the lack of evidence linking Floyd to the murder of Hines, the exculpatory value of the fingerprint evidence, defendant is entitled to a new trial."  As part of their decision making process the court examined the information that the defense offered re the characteristics of the defendant, including the following:

"The defense suggests that Floyd has an IQ of 59 (well below the threshold for mental retardation). Dr. Gregory DeClue, a forensic psychologist, who testified at Floyd's post-conviction hearing, administered the WAIS IV IQ test to Floyd at the Louisiana State Penitentiary in Angola in June 2009, and that test indicated Floyd has a full scale IQ of 59. The generally accepted cut off for mental retardation is 70. According to DeClue, 99% of all adults in the United States score higher on the test than Floyd.

Additionally, DeClue administered the Woodcock Johnson test to Floyd to assess his language and reading comprehension skills. DeClue testified that, based on the test results, Floyd can read at a second or third grade level. DeClue stressed that these results indicate Floyd cannot communicate at the complex level an average adult can.

DeClue also administered the Gudjonsson Suggestibility Scale to determine Floyd's levels of suggestibility and compliance. DeClue found that relator displayed a high level of suggestibility, and that Floyd's "self-reported description was that he's more compliant than the average person." DeClue testified that people classified as mentally retarded are 10 times more likely to give a false confession, that in many false confession cases, the confessor included details of the crime scene presumed to be known only by the police and the perpetrator.

Although mental retardation or illiteracy, alone, do not prevent a person from being able to knowingly and intelligently waive his rights, this Court has held that a mentally retarded 17–year–old with an IQ between 50 and 69 was not able to understand his rights and was incapable of knowingly and intelligently waiving his Miranda rights, and thus his confession should have been suppressed.   Click here for the complete decision.

Shawn Roberson

 

(Court rules that Dr. Shawn Roberson would not be allowed to testify on false confession issues at trial)

In White v. Patton (August 2014) the US District Court, N.D. Oklahoma, upheld the lower court's decision to exclude the testimony of Dr. Shawn Roberson on false confession issues. The trial court had ruled that Dr. Roberson's testimony about a possible false confession did not meet the standards of acceptability. From their opinion the District Court stated the following: "Petitioner presented the testimony of Shawn Roberson, Ph.D., to explain the phenomenon of false confessions and its applicability to the voluntariness of Petitioner's confession..... Dr. Roberson identified three (3) areas of concern contributing to the possibility of a false confession in this case: (1) Petitioner's youth, (2) Petitioner's suggestibility, and (3) Petitioner's disenfranchisement from his family.... Dr. Roberson also testified that Petitioner was not incompetent and while mental illness is not a condition precedent for a false confession, Petitioner did not have a major mental illness.... At the conclusion of Dr. Roberson's testimony, the trial judge found that, while Dr. Roberson was an expert in the fields of forensic psychology and false confessions, under OKLA. STAT. tit. 12, S 2702, the information on false confessions had "not developed yet" to the point of giving it credence.... The trial judge further stated that "absent a showing of a demonstrable psychological condition or impairment ... the social science is simply not developed to a point where that decision should be presented to a jury." For those reasons, the trial judge allowed Dr. Roberson to testify during the Jackson v. Denno hearing, but ruled that the testimony would not be allowed at trial."

Click here for the complete decision.

 

Michael Fuller

 

(Court rejects testimony of forensic psychiatrist that defendant fits the profile of someone who would be susceptible to giving a false confession)

In Coleman v. State (October 2013) the Court of Appeals of Texas, Houston, upheld a lower court's decision to exclude the testimony of a forensic psychiatrist's opinion that the defendant fit the profile of a person susceptible to giving a false confession. From the court's opinion:

"In his second issue, appellant asserts that the trial court violated his constitutional right to present a meaningful defense when it erroneously ruled that Dr. Michael Fuller could not testify as to his expert opinion that appellant fits the profile of someone who would be susceptible to giving a false confession... The erroneous exclusion of evidence offered under the rules of evidence generally constitutes non-constitutional error.... But, constitutional error occurs when the trial court erroneously excludes otherwise relevant, reliable evidence which "forms such a vital portion of the case that exclusion effectively precludes the defendant from presenting a defense." ... Appellant argues that such constitutional error occurred when the trial court ruled that Dr. Fuller would not be allowed to testify before the jury about his expert opinion that appellant fits the profile of one who would be susceptible to giving a false confession.

The State objected that appellant had failed to satisfy the Nenno test, and the trial court ruled that Dr. Fuller could not testify as to his expert opinion that appellant fits the profile of one who would be susceptible to giving a false confession. Dr. Fuller testified at a hearing outside the presence of the jury so that the trial court could determine the admissibility of his testimony. Dr. Fuller stated that the area of false confessions was within the scope of his field of practice and area of expertise as a forensic psychiatrist. Dr. Fuller outlined three "sub sets [sic] of false confessions that are accepted in the literature and by researchers." He referred generally to 300 cases in the span of two decades in which the results of DNA testing had exonerated individuals convicted of a crime. Dr. Fuller stated that about fifteen to twenty-five percent of these individuals were found to have falsely confessed. According to Dr. Fuller, "false confessions frequently occur in individuals who are emotionally unstable, who have mental illness, [sic] who have impaired cognitive abilities." Dr. Fuller expressed his belief that there is a "legitimate clinical concern" as to whether appellant falsely confessed to the charged offense. According to Dr. Fuller, this concern is a result of appellant's testimony that he falsely confessed and appellant's "psychological profile" which Dr. Fuller described as "one that is very much like the psychological profile of an individual who would be at relatively or higher risk than, say, the average person for making a false confession." According to Dr. Fuller, appellant's psychological profile is consistent with the profile of someone who would falsely confess.

On cross-examination by the State, Dr. Fuller acknowledged that he had never before testified in a court as an expert specifically in the area of false confessions. Dr. Fuller testified he had read reviews of articles by a "Dr. Leo" and reviews of articles by Mr. Saul Kassin. Dr. Fuller also read a 2009 article by Dr. Leo on the topic of false confessions as well as excerpts from the work of Mr. Kassin. Dr. Fuller indicated he found these articles by searching the internet for "false confessions" after evaluating appellant several months before trial. Dr. Fuller stated he had not read The Psychology of Confessions by Saul Kassin. Dr. Fuller acknowledged that he did not teach any courses in false confessions and had not written any articles or books on the topic. Dr. Fuller stated that this case is the first time he has "focused more directly and thoughtfully" on false confessions as a primary issue. Dr. Fuller testified that he based his conclusion that appellant had the profile of a person who would confess falsely on his general mental-status examination of appellant, his clinical interview, and his discussion with appellant of the circumstances at or near the time of the alleged crime. According to Dr. Fuller, he based this conclusion on his findings that appellant was suffering from a major depressive episode with extreme hopelessness about his future, a sense of failure in general about the quality and direction of appellant's life, obsession with military themes of honor and chivalry, and preoccupation with "the notion of laying himself down as part of a tribe or as part of a group..." Dr. Fuller described appellant as a very needy, disturbed young man, who was depressed and hopeless but not psychotic, and probably intermittently intoxicated. According to Dr. Fuller, there is a possibility appellant made a voluntary, false confession to achieve notoriety, attention, and a disturbed sense of fame.

Dr. Fuller did not administer any formal psychological testing of appellant. The only examination he used with appellant was an examination for neurological function, cognitive function, and memory function. Dr. Fuller has heard of the "Johnson Suggestibility Scale," but he has not used that scale and is unfamiliar with it. Dr. Fuller did not tie his opinion that appellant had the profile of a person who would confess falsely to any specific study or article. Nor did Dr. Fuller provide the trial court with a copy of any study or article. Dr. Fuller had not read an article by Kassin cited by the State. Dr. Fuller did not explain how his testimony properly relies upon or uses principles in this field, nor did he cite any article or other source in support of this proposition. There is no objective source material in this record to substantiate Dr. Fuller's methodology as one that is appropriate in the practice of forensic psychiatry.

We presume, without deciding, that the field of Dr. Fuller's expertise is a legitimate one, and that the subject matter of Dr. Fuller's testimony is within the scope of the field. Nonetheless, based upon the lack of evidence showing that Dr. Fuller's testimony properly relies upon or utilizes the principles involved in this field, we conclude that appellant did not satisfy his burden of showing by clear and convincing evidence during the gatekeeping hearing the reliability of Dr. Fuller's methodology for determining whether appellant fits the profile of someone who would be susceptible to giving a false confession..."

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David Mantell

 

(Court did not allow David Mantell to testify as an expert on false confessions)

In State v Collin (December 2014) the Appellate Court of Connecticut upheld the lower court's decision to refuse to allow David Mantell to testify as an expert of false confessions. From the Appellate Court's opinion:

"The defendant claims that the court abused its discretion by refusing to permit the defendant's expert, David Mantell, a licensed clinical psychologist, to testify on the topic of false confessions. The defendant argues that Mantell was qualified as an expert on the topic of false confessions and that such testimony was necessary to assist the jury in its assessment of the defendant's testimony regarding his confession. The state argues, inter alia, that the defendant failed to prove that Mantell had sufficient expertise on the topic of false confessions, and, accordingly, that the court properly declined to permit him to testify as an expert on the topic of false confessions. We agree with the state."

The Appellate Court went on to state: "During Mantell's testimony at the proffer hearing, which took place out of the presence of the jury, he stated that he had testified on the topic of false confessions in approximately fourteen cases. When questioned further, however, he explained that most of those cases dealt with false denials, rather than false confessions, or they were cases in which he consulted with counsel on the case, but did not testify. The court then asked Mantell what type of studies he had reviewed. Mantell explained that he had reviewed studies involving false confessions where the defendant, through DNA, later had been exonerated. He testified that "the researchers take a careful look at these cases and dissect the way in which [the accused had been] interrogated and also ... look at the personality characteristics of the people who made these false confessions." He also stated that the commonality in the research findings was the tactics that were employed by the police during interrogations and the witness' reactions to those tactics. Mantell also stated that there was a second line of research with which he was familiar and that such research involved doing a personality evaluation of the defendants who later were exonerated. He explained that the common personality traits of these individuals included suggestibility, mental health problems, lower intelligence, and concentrated personal adversity that makes them less resilient to external pressure. The court asked Mantell whether he had evaluated the defendant in this case, and Mantell stated that he had not evaluated the defendant. Upon questioning by the prosecutor, Mantell also conceded that he was unfamiliar with any kind of psychological examination involving the defendant, that he had never seen the result of a psychological examination involving the defendant, and that he had no idea what such an examination might reveal. Additionally, Mantell admitted that he had no idea regarding the defendant's suggestibility, eagerness to please, level of intelligence, or propensity for mental illness. He also had no knowledge of the police interview process in this case, or whether there was DNA present in this case.

Mantell also explained that he had concerns when he reviewed the file in this case because there was no description of the interrogation process that was used, and he, therefore, was unaware of what tactics were used. He also stated that there was nothing in the defendant's confession that would help him "to understand the demeanor of the [defendant], what was motivating the [defendant] to provide such a detailed and explicit account of punishable, criminal offenses within such a relatively short period of time within that setting." He further explained that he "didn't understand the context in which [the confession] was achieved, and [he] didn't understand the motivation of the defendant to convey that kind of information, apparently, in a first interview with a police officer, presumably knowing or having some general knowledge of what the legal consequences would be for doing that." Mantell also stated that he had not reviewed or witnessed the in-court testimony of the police in this case regarding the questioning of the defendant.

Following the hearing, the court issued both an oral ruling and a written memorandum of decision. The court found, inter alia, that the defendant had failed to prove that Mantell was qualified to give an expert opinion on the topic of false confessions, and that, "even if he were qualified, the testimony proposed [was] incomplete and not directly applicable or relevant ... to assist the jury in understanding the evidence or in determining whether .... the defendant's testimony was false."


Click here for the complete decision.

 

Jorey Krawczyn

 

(Court excludes the testimony of Dr. Jorey Krawczyn on false confession issues)

In Brant v. State (December 2014) the Supreme Court of Nevada held that proffer of expert testimony on police interrogation techniques concerning defendant's allegedly false confession was insufficient to establish that testimony was relevant and reliable, and thus district court did not abuse its discretion in excluding testimony. From the Supreme Court's opinion:

"Brant did not move to suppress his confession as involuntary. Rather, his contention was, and is, that the latter part of his confession--the part where he admits killing Seaton, in addition to finding her body and burying it in his garage--is false. To support his false-confession theory, Brant designated an expert on police interrogation techniques, Dr. Jorey Krawczyn. The district court excluded Dr. Krawczyn's testimony on the grounds that it would not assist the jury in understanding the evidence or deciding a fact in issue The district court held a pretrial hearing on the admissibility of proposed expert witness testimony. Dr. Krawczyn did not testify at the hearing or prepare a written report. The district court "assume [d]" that Dr. Krawczyn "is qualified in methods of police interrogation" based on defense counsel's representation that Dr. Krawczyn is a clinical psychologist who "provides lectures on interview and interrogation techniques utilizing body language and neuro-linguistic dynamics" and was being offered as an expert on police interrogation techniques... Counsel further represented that Dr. Krawczyn had reviewed the audio-and videotapes of Brant's "interviews and interrogations," including "at the house, the ... formalized interrogation [at the police station] and also all the smoke breaks in between." "Based upon what he saw in the review," Dr, Krawczyn "determined detective Gallop is using some standardized questions that 04/27/2015 back to a 1956 polygraph operator's course and eventually progressed in the Criminal Division"; Gallop may have "used the Reid techniques," but without asking Gallop, the defense "cannot with 100 percent certainty say that is the technique." There is "a question [of] is this a good technique to use with a brain injury" that "goes to susceptibility and reliability of the statement." Summing up, defense counsel stated that,

... there are identified factors or ... interrelated components that are part of the concept of interrogative susceptibility that just better form the social interaction between the interrogat[or and] the interviewee. This is what we need the expert to go through, the factors and explain how these factors came together.

The phenomenon of false confessions is a growing area of psychological and social science," and we "do not foreclose the possibility that under appropriate circumstances expert testimony [in this arena] could be relevant to a defendant's case and helpful to a jury." For this court to find an abuse of discretion in the exclusion of such testimony, though, there needed to be a specific proffer, supported by scientific or other proof, citing particularized facts, establishing that the testimony is relevant and reliable. The proffer in this case does not provide us the information needed to undertake that analysis.

This leaves the fact that, in interrogating Brant, Detective Gallop may have used the Reid technique (or a 1956 polygraph operator's technique) and the suggestion that a susceptible witness may make unreliable statements to establish the relevance and reliability of Dr. Krawcyzn's testimony. But with no evidence to establish a scientific or other recognized basis for challenging the interrogation techniques utilized in this case--which Dr. Krawczyn should have been able to identify if they were problematic, since he had complete audio--and videotapes of Brant's interview and interrogation--we have only Dr. Krawczyn's ipse dixit that the techniques possibly used may have influenced Brant's confession. This is not enough to establish an abuse of discretion in excluding such testimony.

Brant complains that he needed Dr. Krawczyn to establish that the phenomenon of false confessions exists. But he accomplished that through Detective Gallop, who acknowledged under cross-examination that false confessions can and do occur. And, as discussed above, the proffer with respect to Dr. Krawczyn does not establish what else Dr. Krawczyn might have said that would be of assistance to the jury."

Click here for the complete decision.

 

Examples of erroneous testimony regarding the Reid Technique

 

(Dr. Richard Leo offers erroneous testimony about The Reid Technique)

 

In a deposition Dr. Leo gave in Caine v. Burge in April 2013 Dr. Richard Leo made numerous erroneous statements about the Reid Technique and repeatedly mischaracterized the Reid process.


Click here to access Dr. Leo's deposition

Click here for our responses to his testimony.



 

 

 (Another example of how false confession experts misrepresent the Reid Technique - Richard Leo and Deborah Davis)

In an article published earlier this year, The Problem of Interrogation-Induced False Confession: Sources of Failure in Prevention and Detection, the authors, Dr. Richard Leo and Deborah Davis, continue the trend of misrepresenting the tenets of The Reid Technique of Interviewing and Interrogation.

On page 19 of the article the authors state, "Finally, specific investigations of the effects of training in the "Behavior Analysis Interview" developed and promoted by Inbau, Reid and colleagues in their manuals and training materials and seminars have shown that the training decreases accuracy relative to untrained controls (Kassin & Fong, 1999)."

The facts are exactly the opposite. When trained interviewers evaluated the responses of 80 different subjects in real-life Behavior Analysis Interviews they achieved an accuracy rate of 86% for truthful subjects and 83% for deceptive subjects (see Criminal Interrogations and Confessions, 5th ed, page 102 - NSA study). Furthermore, it has been demonstrated in the last several years that accuracy in detecting deception increases significantly with real-life subjects when the interviewer understands the context in which the interview was conducted, and when the interviewer has been properly trained in the in the field of behavior symptom analysis (Blair 2010 and Hartwig 2006 - details on page 103 in Criminal Interrogation and Confessions).

Click here for the complete discussion of these misrepresentations

 

In People v. Hernandez (2011) Dr. Leo testified that "The Reid Manual, which is the Bible of modern interrogation, advises not to exceed four hours of interrogation because longer interrogations might be seen as coercive." This statement is false. In the 4th  edition of Criminal Interrogation and Confessions on page 423 we state the following:

Many guilty suspects who confess after several hours of interrogation will claim: "The pressure was so intense I would have said anything to bring it to an end." A properly conducted interrogation that lasts 3 or 4 hours, for the ordinary suspect, is certainly not so long as to cause the levels of emotional or physical distress that constitute duress. However, if physical coercion is involved, even a 30-minute interrogation may warrant such a bona fide claim. The following guidelines are offered to evaluate claims of duress:

1.        Can the excessive length of interrogation be explained by the suspect's behavior? For example, did the suspect offer a series of different versions of events, before offering the first incriminating statement? A suspect who has maintained his innocence and made no incriminating statements for 8 or 10 hours has not offered any behavior to account for this lengthy period of interrogation.

2.        Did the suspect physically or verbally attempt to seek fulfillment of biological needs? If so, were such requests denied or used as leverage to obtain the confession (e.g., "You can use your asthma inhaler after you confess."). A suspect who made no such verbal requests or physical efforts to bring the interrogation to a close has a much weaker case. In this instance, it would appear that only in retrospect, after reviewing the interrogation in his mind, or with an attorney, did the suspect decide that the conditions of the interrogation were intolerable.

3.        Were there any threats made with respect to denying the suspect basic biological needs unless he confessed (e.g., "You're not leaving here until you confess—no matter how long it takes.").  Click here for the complete decision.

 

Example of how false confession experts misrepresent the Reid Technique - Dr. Solomon Fulero

 

In the case State v. Wright (Jan. 2012) Dr. Solomon Fulero, Professor of Psychology at Sinclair College, offered testimony about the Reid Technique - his testimony (quoted below) provides a perfect example of how "false confession experts" misrepresent what the Reid Technique is - oftentimes attributing to the Reid Technique tactics that we teach should never be used by any interrogator. After the quoted testimony of Dr. Fulero we provide some brief comments (in blue).

"Dr. Fulero testified regarding the Reid technique--a police interrogation method used to elicit confessions by making suspects believe that confessing is in their best interest."

The Reid Technique consists of a three phase process including Factual Analysis in which the investigator attempts to determine possible suspects based on motive, alibi, relationship to the victim, possessing the knowledge necessary to commit the crime, the presence of any incriminating evidence, etc; a non-accusatory interview designed to develop investigative and behavioral information to determine investigative direction, followed by, when appropriate, an accusatory interrogation. The interrogation component is last element in the Reid Technique.

"According to Dr. Fulero, the Reid technique usually involves the use of a bare interrogation room, containing only a desk and chairs, located within a maze of hallways at a police station."

We emphasize that in both the interview and the interrogation phase of the Reid Technique be conducted in a quite, private environment with a minimum of distractions - we never talk about locating the interview room "within a maze of hallways at a police station."

Click here for the complete description of Dr. Fulero's testimony and our responses.

 

           

Value of video recording

 

(Confession voluntariness and the exclusion of clinical psychologist at guilt phase (value of video recording))

In Loza v. Mitchell (September 2014) the US Court of Appeals upheld the Ohio Supreme Court's decision to admit the defendant's incriminating statements, and their decision to exclude the testimony of Dr. Roger Fisher during the guilt phase. From the Court of Appeals opinion:

"Loza argues that Detectives Knable and Jeffery threatened Dorothy Jackson and Loza's unborn baby to coerce Loza into confessing. For example, the detectives asked Loza if he "want[ed] Dorothy to have her baby in a penitentiary" or if he wanted "[his] baby to be put up for adoption to somebody you've never heard of" and told Loza that "[t]hat's what's going to happen."

The Ohio Supreme Court rejected Loza's argument that these statements constituted threats, reasoning:

The detectives' references to Jackson were made in response to appellant's repeated inquiries about what would happen to her. No threats were made concerning Jackson or what would happen if appellant did not confess. The detectives merely informed appellant of the possible consequences of his actions. By the time the detectives were questioning appellant, Jackson had already told the police about appellant's involvement in the murders. Appellant sought the release of Jackson and he initiated the bargaining for her release. Under these circumstances, the statements made to the detectives were voluntary beyond doubt.

After reviewing the video recording and transcript of Loza's interrogation, we conclude that the Ohio Supreme Court's determination that the detectives did not threaten Dorothy Jackson or Loza's unborn child was not unreasonable. The record supports the court's conclusion that "detectives merely informed appellant of the possible consequences of his actions" when they told Loza that both he and Dorothy Jackson could be imprisoned for their involvement in the killings.... As the court noted, most of the detectives' references to Jackson during the interrogation were in response to Loza's questions about what would happen if Jackson were charged and prosecuted. Viewed in context, the detectives' comments do not appear to be threats. Even if we believed that some statements could be characterized as threats, our mere disagreement is not enough to supersede the Ohio Supreme Court's factual determination on habeas review.
Loza argues that the Ohio Supreme Court's decision upholding the trial court's exclusion of the testimony of Dr. Roger Fisher, a clinical psychologist, at the guilt phase of trial was contrary to and an unreasonable application of Crane v. Kentucky, 476 U.S. 683, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986). In Crane, the Supreme Court held that the "blanket exclusion" of evidence concerning the circumstances of the defendant's confession on the ground that it related only to voluntariness, not credibility, violated the defendant's right to present a complete defense.

Loza sought to introduce testimony from Fisher at the guilt phase of trial to help explain his confession... Loza's counsel stated that he expected Fisher to testify that "Loza's acknowledgment of his participation in the offense and his desire to take full responsibility would have been [the] product of psychological coercion and duress brought upon by the statements of the police officer that his girlfriend would be placed in the electric chair and this child would be sent to never-never land." He said that he expected Fisher to testify that Loza's "letters and repeated affirmations of [his confession] would have been consistent with Mr. Loza's coerced desire to protect his girlfriend and unborn child." The trial court prohibited Loza's counsel from introducing Fisher's testimony at the guilt phase of trial because it had already determined Loza's confession to be voluntary.... He stated that, in his opinion, Loza would have lied to protect Dorothy Jackson and that he would have done anything necessary to protect his unborn child. The Ohio Supreme Court affirmed the trial court's decision to exclude Fisher's testimony at the guilt phase.

Loza argues that the Ohio Supreme Court's decision upholding the exclusion of Fisher's testimony was contrary to and an unreasonable application of Crane. The Ohio Supreme Court reasoned:

The testimony of Dr. Fisher is clearly outside the holding of Crane. The testimony of the witnesses in Crane related to how the physical and psychological environment of the interrogation could have impacted the voluntariness and credibility of the confession. Dr. Fisher's proffered testimony relates to how Loza's individual, psychological makeup, independent of the circumstances surrounding the interrogation, could have impacted the voluntariness and credibility of the confession. Consequently, Crane does not require the admission of Dr. Fisher's testimony.

The jury was able to accurately consider the credibility and weight of the confession by watching it on videotape. They could see and hear the tone and manner of the interrogation, the number of officers present, the physical characteristics of the room, and the length of the interrogation. The jury had the opportunity to evaluate the credibility of the appellant and to give the confession its appropriate probative weight. Because the trial court already had ruled on the voluntariness of the confession and the jury had the opportunity to evaluate the credibility of the confession, the trial court did not abuse its discretion by excluding the testimony of Dr. Fisher during the guilt phase of the trial.

Click here for the complete decision.

 

(Value of video recording to demonstrate confession voluntariness)

In State v. Glasscock (September 2014) the Court of Appeals of Utah upheld the lower court's decision that defendant's confession was not coerced. From their opinion:

"Glasscock argues that his confession was involuntary because the detectives employed "coercive police interrogation tactics" to take advantage of his unstable mental condition, and he argues that "[s]everal of the [court's] findings of fact" supporting the court's denial of his motion to suppress "were clearly erroneous." Specifically, Glasscock maintains that he was "significantly impaired from alcohol, heroin, pain pills" and that "he suffered from multiple disorders, including 'bipolar Type I,' 'post-traumatic stress,' and 'borderline personality.' " And even though the detectives "knew that Glasscock had consumed a number of impairing substances" that had "significantly impacted [Glasscock's] memory," Glasscock contends that they employed a "false friend technique" and other coercive strategies that "basically forced [him] to say what they wanted [him] to say." After carefully reviewing the evidence in the record, including the video of Glasscock's police interrogation, we agree with the district court that Glasscock's confession was not coerced.

Here, the district court found that Glasscock "was lucid and properly oriented" during his interview with the detectives. Although Glasscock's answers evinced some "hesitation at first," the court determined that he "voluntarily cooperated" throughout the interview. The court also determined that there "was insufficient evidence of intoxication, mental defect, or coercion to justify excluding the interview," so the "confession was fully knowing and voluntary." At Glasscock's urging, we have reviewed the video recording of Glasscock's interrogation and find that the district court's findings and conclusions are unassailable."

Click here for the complete decision.

 

(Video of interrogation demonstrates that juvenile did not make a knowing and intelligent waiver of his rights)

 

In re J.M., a Minor (People v. J.M.) (April 2014) the Appellate Court of Illinois found that "J.M.'s youth, his mental deficiencies, the DVD which shows not only his inability to read his rights, but also his trust in Jany and Vespa despite their intention to get a statement to use against him, and Dr. Cuneo's credible, expert testimony, we find that the trial court's decision that respondent knowingly and intelligently waived his Miranda rights is against the manifest weight of the evidence."

 

In their opinion the court stated the following: "The critical test used in determining whether an accused knowingly and intelligently waived his or her rights is whether the words in the context used, considering the age, background, and intelligence of the individual being interrogated, convey a clear and understandable warning of all his or her rights... Whether a waiver is knowing and intelligent is determined by the particular facts and circumstances of each case, including the defendant's background, experience, and conduct... Illinois courts have long recognized that a defendant's mental capacity at the time of the alleged waiver must be considered in determining whether his or her actions were knowing and intelligent, and while mental deficiency alone does not render a statement unintelligent, it is a factor that must be considered

 

Moreover, our supreme court has specifically stated that "[t]he greatest care must be taken to assure that a juvenile's incriminating statement was not the product of ignorance of rights or of adolescent fantasy, fright or despair."...  In addition, our supreme court has explicitly stated that care must be taken with defendants who are mentally deficient due to the following:

 

"[I]t is generally recognized that the mentally retarded are considered more susceptible to police coercion or pressure than people of normal intellectual ability, they are predisposed to answer questions so as to please the questioner rather than to answer accurately, they are more likely to confess to crimes they did not commit, they tend to be submissive, and they are less likely to understand their rights." ....

 

Therefore, when dealing with a mentally deficient juvenile, extreme care must be used to assure that he knowingly and intelligently waived his rights.

 

... J.M. was also 13 years of age; however, his mental capacity was that of a 7–year–old. His IQ was either 54 or 56, which, ... puts him in the mild mentally retarded range. J.M. also attended special education classes and was unable to explain the meaning of the word "silent" with regard to the first Miranda warning. Additionally, an expert testified that J.M. did not knowingly and intelligently waive his Miranda rights.

 

Here, Dr. Cuneo evaluated J.M. on two separate occasions: first, to determine whether J.M. was fit to stand trial and, second, to determine whether he could knowingly and intelligently waive his Miranda rights. Dr. Cuneo specifically found that J.M., who only reads at a first-grade level and who was intellectually in the bottom .04% of the population, was incapable of reading or understanding his Miranda rights. Our own review of the videotaped statement contained on the DVD shows that J.M. was incapable of reading his rights.

 

J.M. could not even read the word "silent" in the first warning. The DVD shows that after J.M. had trouble reading the word "silent," Officer Jany took over and read him his rights, trying to explain them along the way. Jany also told J.M. that J.M.'s mother was outside and she just hoped J.M. would be honest. After Jany read J.M. each of his rights, he told J.M. to initial and then sign the form. J.M. complied. Even though J.M. said he watched rights being given on television and had been read his rights "at the other station" on a different occasion, our review of the DVD does little to alleviate our concerns that J.M. did not fully appreciate that it was the State's intention to use his statement to secure a conviction against him or that he had the right to stand mute and request a lawyer. Instead, it appears to us that J.M. was compliant and wanted to please the officers, which, as previously discussed, is common among those suffering a mental deficiency."

 


Click here for the complete decision.

 

(Video contradicts defendant's claim he was too intoxicated to waive his rights)

In McNear v. State (March 2014) the Court of Appeals of Georgia rejected the defendant's claim that his statements to police were voluntary and admissible. McNear asserted that his statements were not voluntary because they were made over a six hour period of time while he was "exhausted and still inebriated" from an evening of heavy drinking. From the courts opinion:

"The record in this case shows that after conducting an evidentiary hearing and reviewing the three video-recorded interviews, the trial court issued a seven-page order in which it concluded that McNear "was advised of each of his Miranda rights, he understood them, he voluntarily waived then, and he thereafter gave his statements freely and voluntarily without any hope of benefit or fear of injury." With regard to McNear's intoxication, the trial court made the following finding:

While Defendant contends that he was intoxicated at the beginning of his interview with the officers, Defendant's intoxication did not prevent him from a making a rational, voluntary statement. Defendant was lucid, answered questions forthrightly, and recognized the nature of his detainment. Officers adequately explained to Defendant his rights several times throughout the interview, and Defendant clearly understood what the officers were telling him. Consequently, considering the totality of the circumstances, Defendant's statements were voluntary in spite of his possible intoxication.

Based upon our review of the waiver form signed by McNear and the video-recordings of his interviews with the police officers, "we find that the trial court was authorized to conclude that, despite [McNear]'s possible intoxication [and lack of sleep], he gave a voluntary statement and made a knowing and intelligent waiver of his Miranda rights."

Click here for the complete decision.

 

(Video identifies improper interrogation - confession suppressed)

In People v. Hughes (December 2013) the Appellate Court of Illinois, First District, Third Division relied extensively on the video recorded interrogation to determine that the defendant's confession should be inadmissible. The court stated that, "We watched the video recording of Hughes' interrogation from start to finish. Our bird's-eye view of what occurred before the first confession and, more tellingly, between the time of the first confession and the second confession, raises intolerable doubts about the validity of the second confession. The methods the detectives used during the interrogation process contaminated this confession. The totality of the circumstances underlying Hughes' second confession establish that he lacked the ability to make a rational, unconstrained decision to confess. Accordingly, we reverse and remand for a new trial."

From the court's opinion:

"Hughes was 19 years old at the time of the interrogation. He attended school through the ninth grade, and received C's and D's. He used marijuana five to six times a day and drank several glasses of cognac twice a week. His arrests as a juvenile involved unlawful use of a weapon and criminal trespass to a vehicle.

Hughes' age, intelligence, education, experience, and physical condition at the time of the detention and interrogation address his character and capacity to resist police coercion. Courts recognize that youth, education, and experience increase susceptibility to police coercion. We agree that Hughes' youth (Hughes was 19 years old at the time of interrogation) and lack of education (Hughes only attended school to the ninth grade) heightened his vulnerability to the coercive tactics used on him.

As to the length of the interrogation, Hughes was picked up in Michigan around 2 p.m. and the interrogation ended around 6 a.m. the following day. Just over half of that time Hughes spent alone. Over the course of the interrogation, Hughes' clarity and cadence of speech, alertness, and concentration deteriorate. While in the afternoon he speaks freely, by the early morning hours before and during the polygraph examination Hughes mumbles several answers and appears exhausted.

Hughes also cites his regular drug use (smoking five or six joints a day, and drinking four or five glasses of cognac twice a week) to show involuntariness..... While nothing indicates that Hughes confessed as a result of any withdrawal effects ... he did smoke marijuana immediately before the polygraph exam.

Hughes next cites a number of untruths told by the detectives during the interrogation. In limited circumstances, interrogators may use subterfuge in attempting to elicit a confession. But where the State extracts a confession using deceptive interrogation tactics calculated to overcome the defendant's free will, suppression may be appropriate. ... Hughes cites numerous lies told by the detectives, which the State does not contest in its brief: (i) that his fingerprints were found at the scene; (ii) that numerous witnesses placed him at the scene; (iii) that the leg wounds, and not the head wound, killed Coleman; (iv) that he had failed the polygraph; and (v) that the court needed to know Hughes was sorry for what he had done.

The detectives' claims of having nonexistent evidence is a common police strategy, and while falsified evidence raises concerns as to voluntariness of a confession, usually, courts go along with these ruses. While the false-evidence ploys may be disturbing contextually and cumulatively, Hughes' "failed" polygraph and being told after the polygraph that the court needed to know Hughes was sorry for what he had done, weigh the heaviest against voluntariness due to their proximity and causal connection to the confession.

Moreover Detective Figueroa-Mitchell, the polygraph examiner, repeatedly represented to Hughes that she was "here to help" him, and that if he did not show remorse for shooting Coleman, his situation would only get worse. She also told Hughes that she was "fighting" for him, and that--if he showed remorse for shooting Coleman--she would testify in court on his behalf.

Looking at the totality of the circumstances, Detective Figueroa-Mitchell's trickery and its cumulative effect, along with Hughes' character and the circumstances of the interrogation, indicate that his confession to shooting Coleman was not voluntary."

Click here for the complete decision.

 

(Value of recording: Video of interrogation contradicts defendant's claims)

 

In People v. Kronenberger (March 2014) the Appellate Court of Illinois, First District, First Division, upheld the lower court's decision to admit the defendant's confession, relying on the videotape of the interrogation to discredit the defendant's claims.

 

From the court's opinion: "The defendant makes a number of arguments that his videotaped confession to the police was given involuntarily, because the interrogation techniques used by police detectives to obtain it included repeated threats, coercion and deception. Such repeated threats and coercion, he asserts, precluded him from voluntarily waiving his Miranda rights or otherwise voluntarily providing a statement. He further contends that certain comments made by the detectives, to the extent that they contradicted and undermined his right to remain silent and right to counsel, nullified the Miranda warnings provided to him. Specifically, he points to comments made by the detectives during interrogation, such as "your silence speaks volumes here. Your silence is making you a dirty gang banging [expletive]," "[you will] swing for this," and "the only [expletive] way you're going to get any of us out of here is to [expletive] tell us what happened."

 

Viewing the complained-of statements in context of the entirety of the interrogation, we find that the first two quoted remarks by the detectives did not undermine or conflict with his right to silence, as the defendant suggests. These two remarks, when viewed in context, show the detectives' explanation to the defendant that the only version of the events that the police possessed came from Emil's father, Edward, who had placed all of the blame for the crime on the defendant. Indeed, our review of the videotaped interrogation reveals that the detectives repeatedly tried to convince the defendant to tell "the truth," to tell his "story," to take this opportunity to "flip the script," to "help" himself, and to not let others tell his side of the "story," while the defendant repeatedly lamented over the seriousness of the situation by making statements that it was a "lose-lose situation," and that he was "[expletive]," "done," going to get "locked up," "going to jail," and that his "future" was "gone." Nor do we find any of the statements to be a nullification of the Miranda warnings provided to him.

 

... Based on our examination of the videotaped statement, we find that the defendant's portrayal of the interrogation as containing repeated threats and coercion to be an out-of-context view of the detectives' comments. The running theme of the bulk of the interrogation was that the police tried to convince the defendant to tell his version of what happened and tried to appeal to his sense of doing the "right thing." Throughout the interrogation, the detectives told the defendant that they knew he was involved in the crime but did not think he was the shooter, and that they thought Emil was actually the mastermind behind the robbery and killing. We find that the detectives' references to an "L–I–F–E" sentence, to "save" himself, and to avoid doing "a lot of time" only highlighted the reality that he could avoid the maximum sentence if he was not the shooter. Likewise, we find that the police did not offer any inducement or promises of leniency to obtain the defendant's confession. Rather, the alleged "promise of leniency," when viewed in context on the videotape, shows that Detective Murray informed the defendant that the detective did not "cut deals," that the detective's objective was to have the "absolute truth in knowing that [he was] putting the right person in jail," and that he wanted to be able to state with certainty that the defendant did not personally discharge the firearm.... Indeed, during the interrogation, detectives never misrepresented to the defendant that he would escape legal consequences if he confessed, but instead, they candidly told the defendant that "no doubt" he was in a bad situation, that no one would get a "free walk," but that he should do the "right thing" by telling the police what had occurred. Moreover, we find that, at the time of questioning, the defendant, who was 22 years old, was no stranger to the criminal justice system and was well aware of the severity of the circumstances in which he found himself. Under the totality of the circumstances, we find that the defendant's subsequent videotaped confession was voluntary.

 

Click here for the complete decision. 

 

(Video contradicts defendant's claim he was too intoxicated to waive his rights)

 

In McNear v. State (2014) the Court of Appeals of Georgia rejected the defendant's claim that his statements to police were voluntary and admissible. McNear asserted that his statements were not voluntary because they were made over a six hour period of time while he was "exhausted and still inebriated" from an evening of heavy drinking.  From the courts opinion:

 

"The record in this case shows that after conducting an evidentiary hearing and reviewing the three video-recorded interviews, the trial court issued a seven-page order in which it concluded that McNear "was advised of each of his Miranda rights, he understood them, he voluntarily waived then, and he thereafter gave his statements freely and voluntarily without any hope of benefit or fear of injury." With regard to McNear's intoxication, the trial court made the following finding:

 

While Defendant contends that he was intoxicated at the beginning of his interview with the officers, Defendant's intoxication did not prevent him from a making a rational, voluntary statement. Defendant was lucid, answered questions forthrightly, and recognized the nature of his detainment. Officers adequately explained to Defendant his rights several times throughout the interview, and Defendant clearly understood what the officers were telling him. Consequently, considering the totality of the circumstances, Defendant's statements were voluntary in spite of his possible intoxication.


Based upon our review of the waiver form signed by McNear and the video-recordings of his interviews with the police officers, "we find that the trial court was authorized to conclude that, despite [McNear]'s possible intoxication [and lack of sleep], he gave a voluntary statement and made a knowing and intelligent waiver of his Miranda rights."

Click here for the complete decision.

 

(Value of recording an interrogation to demonstrate voluntariness)

 

In Hansen v. Johnson (2014) the US District Court, S.D. California found that reviewing the electronic recording of the defendant's interrogation and confession to be critical in evaluating the voluntariness of the statement.  From their opinion:


"Applying these Supreme Court principles, the Court of Appeal first noted that Petitioner was not subject to any "overt physical brutality."... However, in recognition that police coercion can be mental, the Court of Appeal analyzed "whether psychological coercion, by means of an implied promise of leniency, occurred." ... The Court of Appeal next examined the two statements made by Detective Smith to Petitioner while driving to the police station following her arrest. With respect to the first statement ( i.e., "the next hour ... would be the most important hour of [her] life"), the Court of Appeal concluded that the "statement is neither an express nor implied promise of leniency. Rather, it appears [Detective] Smith was emphasizing the seriousness of the situation. Although one could interpret the statement as implying that now was the time to start being truthful, such an implication does not constitute psychological coercion."

The Court of Appeal found the second statement ( i.e., "Hansen's behavior would affect how she spen[t] the rest of her life") to be "more problematic."...  The Court of Appeal reasoned that the second statement arguably implied that Hansen might or might now spend the rest of her life in prison, depending on how she conducted herself during the interview. Smith's postconfession attempts to clarify that he did not intend this implication do not cure the problem, since Hansen had already confessed; an after-the-fact explanation cannot remedy an improper inducement.

 

The Court of Appeal then looked at the totality of the circumstances to determine whether "the implied promise that if Hansen were to confess, she would not spend the rest of her life in prison, motivated her to confess-that is, whether such inducement was sufficient 'to overbear [her] will to resist and bring about [a] confession[ ] not freely selfdetermined.' ... The Court of Appeal ultimately concluded Detective Smith's second statement did not coerce an involuntary confession. In reaching this conclusion, the Court of Appeal stated:

 

The interrogation was recorded on a DVD player. Throughout the interview, Hansen who was one month shy of her 18th birthday, displayed a calm and rational demeanor. She showed emotion only during breaks and at the end of the interview. Hansen's responses and her level of engagement in the interview indicate that she understood what was being discussed and that she was aware of her predicament. She also told the detectives that she was familiar with her Miranda rights. The interview lasted about 80 minutes and thus was not excessive in length. The detectives removed Hansen's handcuffs for the interview. Throughout the interview, the detectives' tone and demeanor were civil and professional. The detectives did not use deceptive practices during the interview. In fact, Hansen remarked during the interview that the detectives were "both very nice," and said, "I think you guys are the most straightforward people I've seen."

 

The DVD recording of the interview supports the trial court's finding that Hansen did not confess because of coercion applied by the police, but rather, that she confessed freely and voluntarily. After independent review of the interrogation DVD, we agree."

Click here for the complete decision.