Legal Update Fall 2010

Legal Update - Fall 2010

Kentucky Supreme Court ruled that the trial court should have allowed false confession expert Dr. Solomon Fulero to testify
In the case of Terry v. Commonwealth (October, 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."

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Court rules that interrogation lasting more than 4 hours does not render confession inadmissible, and that exhorting the defendant to be truthful so that "his sins would be forgiven" was not coercive

In the case of State v. Phillips (August 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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Proper handling of a juvenile (13 year old) interrogation

In the case of Jimmy D., a Person Alleged to be a Juvenile Delinquent, Appellant.
Presentment Agency, Respondent (October 2010) the Court of Appeals of New York upheld the admission of a 13 year old. In examining the voluntariness issue the court considered the circumstances surrounding the defendant's confession, stating that, "In the present case, Jimmy and his mother were not so isolated from one another at the child advocacy center as to affect the likelihood that his confession was voluntary. Jimmy's mother accompanied him to the center, and mother and son had an opportunity to talk there, when they were waiting together alone in the closed-door waiting room. Jimmy's mother was present during the waiver of his Miranda rights. Both Jimmy and his mother agreed to his being questioned outside his mother's presence, and there is no evidence that Jimmy asked for her during the questioning; nor were Jimmy's whereabouts concealed from his mother."

"The detective took care to read a version of the Miranda warnings that explains the rights in simple language. Both Jimmy and his mother responded unhesitatingly when asked whether they understood each right waived. Although Jimmy was doubtless tired, there is no evidence that he asked for food or water and was denied it. Finally, nothing in Jimmy's handwritten confession suggests that it does not express his own recollections."

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

In the case of US v. Redlightning, (October 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."

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Court up holds Miranda waiver of a 12 year old

In the case of In re ANDREA V., a Person Coming Under the Juvenile Court Law. The People, Plaintiff and Respondent, v. Andrea V., Defendant and Appellant (October 2010) the Court of Appeal, Second District, California upheld the Miranda waiver of a 12 year old. In reaching their decision the court stated that, "Here, Officer Gonzalez's testimony, which the juvenile court clearly credited, supports the finding the minor knowingly and voluntarily waived her Miranda rights. Officer Gonzalez testified he and his partner questioned the minor while the three of them were seated at a table in an interview room. No guns were drawn. Officer Gonzalez testified he read the minor her rights, and she readily responded affirmatively when asked if she understood each right. He also asked if the minor wanted to relate what had happened, and she answered, "Yes," and then confessed to the robbery. The questions Officer Gonzalez posed were simple and straightforward. He made no threats to the minor. Nor was there any evidence he attempted to deceive or made promises to the minor during the interview. For her part, the minor actively participated in the interview, and answered appropriately; at no time did she express any confusion, or inability or unwillingness to respond. Apart from the minor's testimony at the Evidence Code section 402 hearing, which the juvenile court was free to disbelieve, there is nothing to suggest a violation of her Miranda rights. Thus, the totality of circumstances surrounding the interview establish the minor knowingly and voluntarily decided to forgo her rights to remain silent and to assistance of counsel. The juvenile court did not err in admitting the confession into evidence."

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Connecticut Supreme Court declines to require electronic recording of interrogations

In the case of State v. Lockhart (October 2010) the Supreme Court of Connecticut decided not to exercise its "supervisory authority to impose electronic recordation requirement" for police interrogations. The court expressed the opinion that this was an issue for the legislature to address. In reaching their conclusions the court provided a detailed discussion of what other state Supreme Courts have ruled on this issue. Due to the high profile nature of this issue we have included extensive excerpts from their opinion:

"Finally, we find persuasive the reasoning of courts that have determined that, where a recording requirement is not mandated by the state constitution, the legislature is better suited to decide whether to establish a recording policy. The Supreme Court of Vermont, for example, concluded that "[t]he most appropriate means of prescribing rules to augment citizens' due process rights is through legislation.... In the absence of legislation, we do not believe it appropriate to require, by judicial fiat, that all statements taken of a person in custody be tape-recorded." (Citation omitted.) State v. Gorton, 149 Vt. 602, 606, 548 A.2d 419 (1988). The Supreme Court of Tennessee expressed a similar view, reasoning that because historically, "[t]he determination of public policy is primarily a function of the legislature ... the issue of electronically recording custodial interrogations is one more properly directed to the General Assembly." (Citations omitted; internal quotation marks omitted.) State v. Godsey, 60 S.W.3d 759, 772 (Tenn.2001); see also People v. Raibon, 843 P.2d 46, 49 (Colo.App.1992) ("[w]e decline ... to mold our particular view of better practice into a constitutional mandate which would restrict the actions of law enforcement agents in all cases"), cert. denied, 1993 Colo. LEXIS 15 (January 11, 1993); State v. Grey, 274 Mont. 206, 213-14, 907 P.2d 951 (1995) ("[a]lthough [recording interrogations] may be the better practice and would help assure that the accused receives a constitutionally adequate Miranda warning while, at the same time, enhancing the prosecution's ability to meet its burden to prove voluntariness, we leave the imposition of any such procedural requirement to the legislature and to individual law enforcement agencies"). This judicial restraint is consistent with our own well established precedent. See Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 715,802 A.2d 731(2002) ("primary responsibility for formulating public policy resides in the legislature"); see also State v. Peters, 287 Conn. 82, 97-98, 946 A.2d 1231 (2008) (where pro rata reduction is not required by federal medicaid law, determination of whether to provide reduction is policy matter more appropriately addressed by legislature).

Conversely, only the Supreme Court of Alaska has concluded that electronic recording is mandated by the due process clause of its state constitution. In Stephan v. State, supra, at 711 P.2d 1159, the court concluded that all custodial interrogations must be electronically recorded whenever feasible, noting that the United States constitution imposes a "heaving burden"; id., at 1160; when a defendant claims that his confession is involuntary. The court observed that "[t]he contents of an interrogation are obviously material in determining the voluntariness of a confession"; id., at 1161; and reasoned that "recording, in such circumstances, is now a reasonable and necessary safeguard, essential to the adequate protection of the accused's right to counsel, his right against self incrimination and, ultimately, his right to a fair trial." Id., at 1159-60.

Three other courts have established a recording requirement, in some circumstances, pursuant to their supervisory powers. In State v. Scales, supra, at 518 N.W.2d 591-92, the Minnesota Supreme Court expressed frustration that law enforcement officials had failed to respond to its admonitions, articulated in two previous cases, that electronic recordings should be used to preserve custodial interrogations. See State v. Pilcher, 472 N.W.2d 327, 333 (Minn.1991) (urging "law enforcement professionals use [the] technological means at their disposal to fully preserve those conversations and events preceding the actual interrogation" and warning that "[l]aw enforcement personnel and prosecutors may expect that [the] court will look with great disfavor upon any further refusal to heed these admonitions"); State v. Robinson, 427 N.W.2d 217, 224 n. 5 (Minn.1988) ("recordation of all pre-statement conversations would afford the reviewing court an objective record upon which to rule, rather than one based upon self-serving or subjective assertions of the principals involved"). Notably, the court did not consider whether the due process clause of the Minnesota constitution mandated a recording requirement. State v. Scales, supra, at 592. Similarly, the Supreme Court of Wisconsin imposed a recording requirement for custodial interrogations pursuant to its supervisory power, but limited that rule to the interrogation of juveniles. In re Jerrell C.J., 283 Wis.2d 145, 172, 699 N.W.2d 110 (2005).

In State v. Cook, 179 N.J. 533, 847 A.2d 530 (2004), the Supreme Court of New Jersey took yet another route. The court first rejected the defendant's argument that due process requires the recording of all custodial interrogations, stating "[b]ecause there is otherwise fair-minded disagreement concerning the appropriateness of imposing a sweeping requirement of electronic [recording] of custodial statements we hold that [the] defendant's point of error is not of constitutional dimension." (Internal quotation marks omitted.) Id., at 559, 847 A.2d 530. The court then established a committee to study electronic recording of custodial interrogations and to make recommendations regarding a recordation rule; id., at 562, 847 A.2d 530; and pursuant to that committee's recommendations, exercised its supervisory authority to establish a rule requiring electronic recording of all homicides and numerous other felonies. N.J. Court Rules 3:17.FN11 These cases, however, provide little support for the defendant's proposed rule in light of more persuasive analysis from other states concluding that the procedures already used to prevent admission of involuntary confessions satisfy a state due process clause that, in these circumstances, offers no greater protections than its federal counterpart."

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

In the case of US v. McGinnis (August 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. Lloyd, 69 M.J. at 102 (Effron, J., dissenting).

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Telling a suspect that his cooperation would be to his benefit is not coercive, and lying to a suspect about the evidence against him does not render a confession inadmissible

In the case of 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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Iowa Supreme court encourages video taping of custodial interrogations

In the case of State v. Madsen (October 2010) the Court of Appeals of Iowa confirms that there is no requirement to electronically record non-custodial interrogations. In discussing their decision the reference the Iowa Supreme Court decision on the case of State v. Hajtic (2006) - "Madsen claims that information obtained as a result of the first interview should be inadmissible because it was not electronically recorded. In State v. Hajtic, 724 N.W.2d 449, 456 (Iowa 2006), the Iowa Supreme Court stated, "We believe electronic recording, particularly videotaping, of custodial interrogation should be encouraged, and we take this opportunity to do so." Madsen cites to a statement by the Iowa Attorney General that "the Hajtic decision should be interpreted as essentially requiring this practice." The Court of Appeals points out that, "The Hajtic decision, 724 N.W.2d at 456, specifically refers to custodial interrogation. It is clear that Madsen was not in custody at the time of the first interrogation."

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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 the case of Smith v. State (September 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."

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Is the statement "we are here to listen and then to help you out," an implied promise of leniency?

In the case People v. Vance (September 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."

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10 hour interrogation of a suspect with a low intellect and lacking sleep should have been admissible

In the case of US v. Aguilar (January 2008) the US Army Court of Criminal Appeals reversed a trial court judge's opinion who had ruled that "The accused was in custody and subject to questioning by CID from 0200 hours until after 1200 hours, a total of over [ten] hours. The accused was properly read his rights under Article 31 [UCMJ]. However, the length of the interview and the lack of sleep of the accused and his low intellect made for a setting which was not conducive to the taking of a knowing and voluntary statement."
The Court of Criminal Appeals concluded that "There were no findings of unfair or coercive activity by SA Starry and under the circumstances appellee's will was not overborne by fatigue and low intelligence. Applying the correct law to the correct facts, the Court concludes appellee voluntarily signed a statement he chose to make."

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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 the case State v. Maciel (August 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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Court limits the testimony of false confession expert Dr. Solomon Fulero

In the case of Williams v. Brunsman (May 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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"[T]here is nothing inherently wrong with efforts to create a favorable climate for confession."

In the case of US v. Sanchez (August 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. Id. 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." Id. 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)."

"In conclusion, we hold that Sanchez's will was not overborne by improper police conduct warranting suppression of his incriminating statements. In considering the totality of the circumstances surrounding Sanchez's confession, we find that while the location of the interrogation weighs in favor of finding Sanchez's confession involuntary, the remaining factors-the degree of police coercion, the length of the interrogation, and the defendant's maturity, education, physical condition, and mental condition-weigh in favor of a finding that Sanchez's confession was voluntary."

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What constitutes custody for an 11 year old?

In the case In the Matter of M.G., a Juvenile (August 2010) the Court of Appeals of Texas overruled the trial court's decision to admit the confession of an 11 year old. The defendant had appealed on the basis that "the trial court erred in overruling his motion to suppress his videotaped statements because the statements were the result of custodial interrogation, yet he had not been advised of his rights, which violated the Fifth and Fourteenth Amendments to the United States Constitution; Article 1, Sections 9 and 10 of the Texas Constitution; and section 51.095 of the Texas Family Code."
In reaching their decision to reverse, the Court of Appeals pointed out that "The room was small. Detective Caldwell sat very close to M.G. while questioning him and appeared to be, at least in part, between M.G. and the door. Detective Caldwell never informed him of any of his rights under the Texas Family Code, and she was not sure if she told him that he was free to leave. Instead, Detective Caldwell made it clear that M.G. was the focus of the investigation involving the sexual assault of his brother. Despite M.G.'s denials, Detective Caldwell repeatedly asked M.G. if he had sexually assaulted his brother. At some point, M.G. became teary-eyed. Nevertheless, Detective Caldwell continued to press him for truthful statements, telling him that she knew that he was not being completely honest during the Scotty's House interview. She also stressed to him several times that they had found a shirt in his bedroom with potential DNA evidence on it and brought his mother into the interview room, not for M.G.'s benefit, but only to allow Detective Caldwell to take DNA cheek swabs from him. After all this, M.G. finally gave a statement inculpating himself in the sexual assault.

Based on the circumstances outlined above, we conclude that a reasonable eleven-year-old child would have believed that his freedom of movement had been significantly restricted at some point after Detective Caldwell began to press M.G. for a truthful statement."

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The value of videotaping an interrogation

In the case of Commonwealth v. Chaperon (September 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. See Commonwealth v. DiGiambattista, supra at 438-439.

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. See Commonwealth v. Roberts, 407 Mass. 731, 733 (1990). In these circumstances, it was not error for the judge to conclude that the defendant's statements were the product of a rational intellect and free will.

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The importance of considering the totality of circumstances in deciding the voluntariness of a confession

In the case of People v. Linares (September 2010) the Court of Appeal, Second District, California, found that even though the interrogator made statements that were inappropriate, when the totality of circumstances were considered the court upheld the trial court's decision to admit the incriminating statements.
As the Court of Appeal pointed out, "To be sure, several statements made by the officers during the interview were inappropriate. Threatening references to Linares's and his wife's immigration status and to putting him in jail and "throw[ing] away the key" if he did not tell the truth should not have been made. Similarly, offers to help Linares and to talk to the district attorney on his behalf could have been interpreted as promises of leniency. These isolated threats and implied promises, however, were not the motivating cause of Linares's incriminating statements, which were made long after the questionable comments by Detective Ramirez and Sergeant Katz. In fact, Linares responded to the officers' inappropriate statements by maintaining his innocence, and he continued to deny any involvement in Padilla's death throughout most of the interview. A review of the full transcript makes clear it was not these threats or implied promises of leniency that finally prompted Linares to confess, but rather the repeated appeals to his conscience, to his concern for Padilla's children and his own, and, ultimately, to his recognition that his denials of involvement were not credible and that his arrest for Padilla's murder was inevitable whether he admitted his role or not. (See generally People v. Carrington, supra, 47 Cal.4th at p. 176 [detective's comments seeking "to evoke defendant's better nature by persuading her that 'purg[ing] it all' was morally the right thing to do and would provide her with psychological relief" was not an impermissible coercive tactic absent evidence defendant was "in a particularly fragile mental state that would render her vulnerable to manipulation by reference to religion"].)

The Court further stated that, "An innocent man told there are videotapes implicating him in a crime he did not commit knows that statement cannot be true and should not be improperly influenced to make a false confession. Indeed, when Detective Ramirez initially told Linares the police had incriminating videotapes, Linares once again insisted he had not gone anywhere with Padilla the night of the murder and responded to Ramirez's question, "[D]o you want to see the video?" by saying, "Let's see. Show me the video." In short, even though false, these deceptive statements were not likely to induce an innocent man to implicate himself in the crime and, in fact, did not prompt Linares's confession in this case.

Under all these circumstances there is no basis to conclude Linares's statements were either coerced or untruthful. (Cf. Mincey v. Arizona (1978) 437 U.S. 385, 398-399 [98 S.Ct. 2408, 57 L.Ed.2d 290].) The trial court did not err in admitting the statements into evidence.

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Court excludes the testimony of psychiatrist Dr. Robert Latimer

In the case of 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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"What if I want my lawyer present first?" Does this statement constitute a request for an attorney?

In the case Cornelison v. Motley (September 2010) the US Court of Appeals, Sixth Circuit, upheld the lower court's ruling that the question (and subsequent conversation) "What if I want my lawyer present first" did not constitute an unambiguous request for an attorney.
From the court's decision: "A review of [Cornelison's] statement reflects that after [he] was read his Miranda rights, he inquired, "What if I want my lawyer present first?" The detective informed [Cornelison] that the decision was up to him and that he had the right to stop the questioning at any point if he wanted an attorney present. The conversation continued with the detective explaining to [Cornelison] the waiver of rights form. After a short period of time, [Cornelison] appears to sign the form while stating, "I would like to have a lawyer, though, I want that on the record." The detective thereafter asked, "Do you want your lawyer present or do you want to talk to us?" [Cornelison] then completed the form and laid down the pen. The detective stated, "Does that mean you want to talk to us?" [Cornelison] nodded his head affirmatively and then responded "yes."

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Military court limits the testimony of Dr. Christian Meissner on the defendant's "heightened suggestibility and manipulation" as a result of his interrogation

In the case of US v. Markis (August 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."

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Military court upholds the decision to exclude Dr. Richard Ofshe's testimony

In the case US v. Griffee (May 2009) the US Army Court of Criminal Appeals upheld the trial court's decision to exclude the testimony of Dr. Ofshe. The trail court stated that, "[Defense] has failed to demonstrate how the assistance of Dr. Ofshe or any expert in the purported field of "false confessions" is necessary to challenge the voluntariness of the accused's confessions."

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