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Legal Updates Fall 2015


What constitutes an intellectual disability? What is mental retardation?

In Chase v. State (August 2015) the Supreme Court of Mississippi concluded the following: Ricky Chase filed a motion for post-conviction relief (PCR) in the Circuit Court of Copiah County arguing that he is intellectually disabled under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), and exempt from execution. The circuit court denied relief, finding that Chase had failed to prove by a preponderance of the evidence that he is intellectually disabled. Chase appeals, arguing that the circuit court made legal errors and that its fact-findings were clearly erroneous. We affirm. We take the opportunity presented by this case to recognize the definitions of intellectual disability promulgated by the American Association on Intellectual and Developmental Disabilities in 2010 and the American Psychiatric Association in 2013. We hold that these definitions may be used in our courts in determining whether a criminal defendant is intellectually disabled for the purposes of the Eighth Amendment.

From the Supreme Court's opinion: "This case presents the Court with the opportunity to recognize developments in the field of assessing intellectual disability that have manifested since Atkins and Chase. Since Atkins, the American Association on Mental Retardation (AAMR), recently renamed the American Association on Intellectual and Developmental Disability (AAIDD), promulgated new definitions of intellectual disability that changed the terminology applicable to adaptive functioning. In 2002, the AAMR promulgated the following definition: "Mental Retardation is a disability characterized by significant limitations in both intellectual functioning and in adaptive behavior as expressed in conceptual, social, and practical adaptive skills." Mental Retardation: Definition, Classification, and Systems of Support 1 (10th ed.2002). In 2010, the AAIDD promulgated a definition that changed the term "mental retardation" to "intellectual disability." The 2010 definition states: "Intellectual Disability is characterized by significant limitations in both intellectual functioning and in adaptive behavior as expressed in conceptual, social, and practical adaptive skills." Intellectual Disability: Definition, Classification, and Systems of Support 1 (11th ed.2010). Intellectual disability must have originated prior to age eighteen..

The 2010 AAIDD manual defines each domain of adaptive functioning. The conceptual skills domain includes "language; reading and writing; and money, time, and number concepts." ... The social skills domain includes "interpersonal skills, social responsibility, self-esteem, gullibility, naivete (i.e., wariness), follows rules/obeys laws, avoids being victimized, and social problem solving." ...The practical skills domain includes "activities of daily living (personal care), occupational skills, use of money, safety, health care, travel/transportation, schedules/routines, and use of the telephone." ... For a diagnosis of intellectual disability, an individual must have significant deficits in one of the three adaptive functioning domains. ...

In 2013, after the hearing presently under review, the American Psychiatric Association also promulgated a new definition of intellectual disability: "Intellectual disability (intellectual developmental disorder) is a disorder with onset during the developmental period that includes both intellectual and adaptive functioning deficits in conceptual, social, and practical domains." Diagnostic and Statistical Manual of Mental Disorders 33 (5th ed.2013). The APA's description of the adaptive functioning domains is similar to the AAIDD's description:
The conceptual (academic) domain involves competence in memory, language, reading, writing, math reasoning, acquisition of practical knowledge, problems solving, and judgment in novel situations, among others. The social domain involves awareness of others' thoughts, feelings, and experiences; empathy; interpersonal communication skills; friendship abilities; and social judgment, among others. The practical domain involves learning and self-management across life settings, including personal care, job responsibilities, money management, recreation, self-management of behavior, and school and work task organization, among others...
The adaptive functioning prong is met when the individual has significant limitations in one of the three domains....

The new AAIDD and APA definitions are similar and require the same three basic elements of intellectual disability as the earlier definitions: significantly subaverage intellectual functioning, significant deficits in adaptive behavior, and manifestation before age eighteen. Although the new definitions changed the terminology applicable to adaptive functioning, other courts have recognized that "the exact wording of the various standards makes little substantive difference in this Atkins context."... This is because both the earlier and later standards promulgated by the AAIDD and the APA "direct clinicians to the same standardized measures of adaptive behavior, such as the Vineland Adaptive Behavior Scales-II (VABS-II) and the [AAIDD's] Adaptive Behavior Scale... And "[e]ven after release of the DSM-5, prong two still 'generally requires a more expansive investigation of a defendant's life history and skill levels than could be fully evaluated through use of a normed instrument,' " and still involves "significantly more subjective clinical judgment."

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Is it coercive to tell a subject that it was important for him to tell the investigators how the child was injured so he could get proper treatment when the investigators knew that the victim was brain dead and would not recover?

In the case State v. Rodriquez-Moreno (September 2015) the Court of Appeals of Oregon upheld the lower court's decision not to suppress the defendant's incriminating statement.

From the Court of Appeals decision: "A third interview began about 3:00 a.m., this time conducted by Matrisciano. The trial court found that the detective began by asking if defendant recalled the Miranda warnings. When Matrisciano began repeating them, defendant interrupted to say that he understood the warnings and would speak to the detective. The third interview lasted for one hour and fifteen minutes.

Matrisciano insisted that "there was something else that had happened." At some point, Matrisciano told defendant "that it was important that [he] know what happened so that the doctors could be able to treat [S]." The trial court found that Matrisciano's statement was untrue and that the detective knew the child was brain dead and would not recover.

Defendant broke eye contact and sat quietly. He told Matrisciano that he was scared that Onofre-Nava would leave him. Matrisciano asked how many times defendant had shaken S. Defendant admitted that he shook S one time after she had gotten into his food and started crying. At Matrisciano's request, he demonstrated how he shook S forcefully by the arms. Matrisciano noticed that defendant demonstrated that he had shaken the imaginary S three times and that he demonstrated her head moving all the way backward and forward each time. Defendant admitted that he was angry and that, on a scale of one to ten, from low to high, he had been "a seven." After shaking S, defendant said, he laid S down forcefully on the couch. Defendant agreed to make a tape-recorded statement, and he repeated what he had just told Matrisciano. At the end of the third interview, defendant was arrested and told that S would likely die from her injuries.

Defendant moved to suppress all his statements made after Matrisciano "falsely told him that they needed information from him * * * in order to be able to assist the doctors in saving [S's] life ." Defendant argued that the statement contributed to coercive circumstances in violation of defendant's rights under Article I, section 12, and under the Fifth and Fourteenth Amendments.

The trial court denied the motion, determining, among other things, that "defendant was never given any promises or threatened in any way"; "[t]here was no evidence that defendant suffered from any mental impairment at any time"; "defendant was never denied any request he made to use the restroom or for water"; the conversations with officers "were civil and polite"; Matrisciano's misstatement did not render defendant's statements involuntary; and, under the totality of the circumstances, the state had met its burden to prove that defendant's statements "were freely and voluntarily given."

In this case, the record supports the trial court's findings that "defendant was never given any promises or threatened in any way." Although defendant remained at length in the hospital, his stay was voluntary. As the trial court found, "defendant was never denied any request he made to use the restroom or for water," and the conversations with officers "were civil and polite." Defendant was reminded of his rights, and he chose to continue speaking with the investigating detectives. He understood that he was the primary suspect in causing S's injuries. His will was not overborne, and his capacity for self-determination was not critically impaired. His candid statements were not the result of any threats or promises. We conclude that the trial court did not err in determining that, in the totality of these circumstances, defendant's statements were voluntary.

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Court rejects defendant's claim he confessed because of the physical problems and confusion caused by his diabetes

In US v Sturdivant (August 2015) the US Court of Appeals, Seventh Circuit rejected the defendant's claim that he confessed because of the "obvious physical distress" his diabetes caused, as well as his claim that his confession was coerced because the police lied to him about the DNA evidence. From the court's opinion:

Sturdivant asserts that the "most significant" factor demonstrating that his confessions were coerced was the "relative indifference" that the officers displayed to his diabetes and the "obvious physical distress it caused."
Two interview sessions occurred on April 28. During the first session, Sturdivant made an unrecorded oral confession to his involvement in the robberies; during the second session, he made a video recorded confession to the same. Between these two interview sessions, Sturdivant vomited while speaking to his mother. This fact, he asserts, demonstrates that he was suffering from the effects of diabetes when he made his confessions. In support of his claim, he points out that his mother, Thomas, testified that vomiting generally indicated that Sturdivant's blood sugar was "[v]ery, very low."

Although Thomas testified that she would "always know" if her son's diabetes was under control, she never expressed any concern, or otherwise told officers, that Sturdivant was ill, that he needed sugar or insulin, or that he was suffering from the effects of diabetes; nor did she testify that her son was indeed suffering from the ill effects of diabetes at the time he vomited. At any rate, even if Sturdivant's diabetes caused him to vomit, the record does not support the conclusion that Sturdivant's confessions were the involuntary product of coercion. With respect to his initial confession, which occurred before he vomited, Sturdivant did not tell the officers that he was suffering from the effects of diabetes or ask for his insulin... and neither of the interviewing officers, Sandoval and Moore, saw any signs that Sturdivant was suffering from the effects of diabetes--he was not sweating, did not appear confused, and was able to articulate and recount the details of the robberies. As for his second confession, Sturdivant confirmed on video that he was in the right frame of mind, was "feeling alright," and that he understood what was going on. Furthermore, after viewing the video recorded confession, we agree with the district court's findings that Sturdivant was attentive; he seemed to understand all of the officers' questions and was able to articulate clear answers, he did not appear to be ill, and he did not appear to be suffering from any sort of weakened mental condition. Also evidencing that Sturdivant had his mental faculties about him when he gave his second confession is the fact that, shortly before he vomited and merely hours before the second confession occurred, he was able to direct officers in a very clear, very concise, and very matter of fact manner to the gun he discarded the prior day. In sum, there is no basis to conclude that Sturdivant's diabetes led to an involuntary confession.

Sturdivant next argues that he was coerced by Sandoval's false representations that officers had recovered Sturdivant's DNA from the crime scene. This argument is also unpersuasive. "[W]e have repeatedly held that a law-enforcement agent may actively mislead a defendant in order to obtain a confession, so long as a rational decision remains possible." ... Sandoval's statement, although false, did not override Sturdivant's free will and coerce him into confessing. In fact, when confronted with the false DNA evidence, Sturdivant denied his involvement in the robberies, and he continued to deny his involvement for the remainder of the interviews that occurred on April 27, when the false statement was made.

Given the standard of review to which we must adhere, and the manner in which Sturdivant conducted himself on video, we see no reason to upset the district court's finding on this point.

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The defendant's Miranda rights were not rendered fatally defective by fact that he was not specifically advised that he had the right to have an attorney present "before and during questioning"

In People v. Macias (June 2015) Appellate Court of Illinois First District, Fifth Division found that the defendant's Miranda rights were not rendered fatally defective by fact that he was not specifically advised that he had the right to have an attorney present "before and during questioning" and that the defendant's confession was made voluntarily. From the court's opinion:

Defendant first contends that his motion to suppress should have been granted because he received incomplete and defective Miranda warnings. The State maintains that defendant received proper warnings.

When defendant was placed in the interrogation room, Detective Swiderek informed defendant that he was arrested and detained for questioning in the shooting death of Casillas. Detective Swiderek then gave defendant his Miranda rights as follows.
"DETECTIVE: All right, these are your rights. You have the right to remain silent. Do you understand that? I need a yes or a no.
DEFENDANT: Yes sir. I'm ready right here.
DETECTIVE: You have the right to have an attorney. You understand that?
DEFENDANT: Yes sir.
DETECTIVE: Okay. Anything you say can and will be used against you in the court of law. You understand that?
DEFENDANT: Yes sir.
DETECTIVE: Okay. If you can't afford an attorney, they give you one for free. You understand that?
DEFENDANT: Hmm-mmm.
DETECTIVE: Is that a yes?
DEFENDANT: [Indicating.]"

Defendant asserts that his Miranda rights were defective because he was not informed of his right to have an attorney present prior to or during questioning.

"In Miranda v. Arizona, 384 U.S. 436, 444 [86 S.Ct. 1602, 16 L.Ed.2d 694] (1966), the Supreme Court held that before conducting a custodial interrogation, law enforcement officers must administer warnings to the defendant sufficient to inform him of his privilege against self-incrimination. The four essential elements of the warning that is required to be given to a defendant in custody before questioning are: (1) the defendant must be told of his right to remain silent; (2) that anything he says may be used against him; (3) that he has the right to have counsel present before and during questioning; and (4) that he is entitled to have counsel appointed if he cannot afford one." ...
However, the Supreme Court has "never insisted that Miranda warnings be given in the exact form described in that decision... Rather, the Court has "stated that 'the "rigidity" of Miranda [does not] exten[d] to the precise formulation of the warnings given a criminal defendant,' and that 'no talismanic incantation [is] required to satisfy its strictures.' " .... "Reviewing courts therefore need not examine Miranda warnings as if construing a will or defining the terms of an easement. The inquiry is simply whether the warnings reasonably 'conve[y] to [a suspect] his rights as required by Miranda.
At the suppression hearing, the police officer testified that he gave the defendant his Miranda rights " 'conversationally.' " ... The prosecutor then asked the officer if he gave each of the individual rights, and the officer answered that he had. The exception was that when asked if he advised the defendant he could have a lawyer present during questioning, the officer responded, " 'I don't know if I said that.' " ... The trial court denied the defendant's motion to suppress. At trial, the defendant testified that he did not receive any of his Miranda rights.

The Fourth District found:
"[T]he Miranda warnings given to defendant in this case, in their totality, were sufficient in that they 'reasonably conveyed' to defendant his rights as required by Miranda. In so holding, we note that defendant was specifically informed that he 'had a right to consult with a lawyer.' While the better practice would be for the police to make explicit that defendant's right to consult with a lawyer may be both before and during any police interrogation, we hold that the language used in this case was sufficient to imply the right to counsel's presence during questioning."

Further, we point out that defendant was later advised of his Miranda rights by the police officer that administered his lie detector test at approximately 3:50 p.m. on June 3, 2007, and prior to defendant making any inculpatory statements. These rights were also video recorded and the recording shows that defendant was advised that he had the right to have an attorney present before and during questioning and that he could stop questioning to consult an attorney. Defendant fails to acknowledge in his brief the administration of his Miranda rights in this instance. Even if Detective Swiderek's failure to advise defendant of his right to have an attorney present before and during questioning were error, which we do not find, any error was cured when defendant subsequently received his complete Miranda rights, which defendant then waived. Accordingly, we hold that the trial court properly denied defendant's motion to suppress under Miranda.

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Court should have allowed testimony on false confessions

In People v. Days (September 2015) the Supreme Court, Appellate Division, Second Dept, NY found that the defendant should have been allowed to introduce expert testimony on false confessions. From their opinion:

Dr. Jessica Pearson, a clinical and forensic psychologist, interviewed the defendant, reviewed his educational and mental health records, and reviewed the videotaped confession. She opined that the defendant had intellectual deficits and personality traits that rendered him vulnerable to giving a false confession, especially where, as here, the police posed a number of suggestive or leading questions, the interrogation was particularly long, and the police used rapport-building techniques to gain the defendant's trust. With respect to her opinion that the defendant had borderline intelligence, Dr. Pearson reported that his full scale IQ was only 85 at age 14, and he was enrolled in special education classes in the ninth grade.

Dr. Pearson's records also reveal that the defendant had been hospitalized for mental illness on multiple occasions, and medication that he took to treat his lupus condition could cause or exacerbate psychiatric symptoms. Significantly, the day after his confession, the defendant was diagnosed with "psychosis not otherwise specified," and prescribed Haldol, an antipsychotic medication used to treat schizophrenia and acute psychosis. The defendant reported that the Haldol suppressed the voices he had been hearing, which permits a fair inference that he was suffering from auditory hallucinations at the time of his interrogation. Although the County Court permitted Dr. Pearson to testify at the defendant's trial about the discrete issue of whether the defendant was able to understand the Miranda warnings he was given (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694), she was not permitted to testify on the issue of false confessions.

The defendant's second proffered expert, Dr. Richard A. Leo, a psychologist who has both a Ph.D. in psychology and a J.D. degree, stated that he was an expert in the psychology of police interrogation, police interrogation techniques, psychological coercion, and false confessions. Consistent with Dr. Pearson's opinion, Dr. Leo opined that a number of individual and situational factors associated with the defendant's interrogation and confession created a heightened risk of a false confession in this case. Among other things, Dr. Leo observed that the confession did not fit the facts of the crime, and was not supported by physical evidence. He further discussed a number of factors present in this case that are associated with false confessions, including the defendant's low intelligence, high suggestibility, mental illness, and the extraordinary length of his custody and interrogation. Dr. Leo specifically opined that the defendant's "mental handicaps unquestionably left him especially vulnerable to the pressures of accusatory interrogation, especially an interrogation as long as this one," and that this "put him at a high risk of giving or agreeing to a false confession."

Upon our consideration of the submissions and opinions of both experts, we find that the defendant made a thorough proffer that he was "more likely to be coerced into giving a false confession" than other individuals. His proffer clearly indicated that he was intellectually impaired, highly compliant, and suffered from a diagnosable psychiatric disorder, and also that the techniques used during the interrogation were likely to elicit a false confession from him... Moreover, in light of the foregoing, the fact that no one had videotaped the nearly six hours of the interrogation that had been conducted before the confession was made raises significant concerns.

Further, there was little evidence to corroborate the defendant's confession in this case, and his conviction turned almost entirely on his videotaped confession... There was no DNA or other physical evidence linking the defendant to the crime, and there was no eyewitness testimony. Although the County Court admitted into evidence prior trial testimony from the defendant's former girlfriend that, during an altercation between them in November 2000, he told her that he committed two murders, she did not report the defendant's statement to police for approximately three months, and she only reported the statement immediately after she had him arrested for allegedly violating an order of protection by approaching her home. This limited incriminating evidence did not undermine the usefulness of expert testimony on the issue of false confessions in this case.

For all of these reasons, the County Court improvidently exercised its discretion in denying the defendant's motion for leave to introduce expert testimony on the subject of false confessions.

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Investigator's comments that he thought the victim was telling the truth during the videotaped interrogation of the defendant did not constitute plain error

In State v. Pennington (June 2015) the Missouri Court of Appeals, Western District
held that the admission of police detective's comments that were made during video recorded interview with defendant that in his opinion the victim was telling the truth did not constitute plain error. From the court's opinion:

Pennington does not contest the sufficiency of the evidence. The evidence established that on March 4, 2011, in Platte County, Missouri, Pennington knowingly placed his finger into S.M.'s vagina and that Pennington tried to move S.M.'s hand so that she would touch his penis through his clothing. S.M. was three years and ten months at the time of the incident.

In this case, the videotaped interview of Pennington's interrogation was played for the jury. In the interrogation, Detective Billy Aaron made comments to Pennington regarding S.M., saying that "for her age she's a pretty sharp little girl," "she speaks pretty well," and "I was rather impressed with how well she did speak." These statements did not express any opinion on S.M.'s credibility. The only possible objectionable comment relating to S.M.'s credibility was made when Detective Aaron asked Pennington whether he grabbed S.M.'s hand and moved it towards his erect penis in his lap. Detective Aaron told Pennington, "I really believe you made it to your lap because she remembers that, very quick little girl, she remembers you putting her hand." Detective Aaron further stated, "I know this, 'cause I talked to her, more importantly a forensic specialist talked to her so we know she's truthful."

As a general rule, witnesses "should not be asked to opine upon the truth or veracity of another [witness's] testimony." ... A court, however, does not abuse its discretion in admitting statements made by a detective during a police interrogation when the comments provide a context for the interrogation and the statement is offered for the defendant's statement and not the statements made by the detective... In this case, the circuit court specifically instructed the jury that the evidence of what Detective Aaron said while interviewing Pennington could be considered only for the purpose of giving context to the interrogation.

Moreover, Detective Aaron testified at trial and did not offer any opinion testimony about the accuracy of S.M.'s statements. Indeed, the circuit court instructed Detective Aaron not to answer the State's question about the statements made during the interview because the jury had watched the videotaped interview and it was admitted into evidence.

Given that the jury was instructed to use Detective Aaron's comments regarding the credibility of S.M. solely "for the purpose of giving context and meaning to [Pennington's] responses" and given that Detective Aaron did not offer any opinion testimony about the accuracy of S.M.'s statements at trial, the admission of Detective Aaron's statements did not have an outcome determinative effect on the verdict and was not plain error.

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Lying about evidence - saying a witness placed the defendant in the victim's car - was not coercive

In State v. Bates (June 2015) the Missouri Court of Appeals, Eastern District upheld the lower court's decision that the defendant's confession was not coerced. From the court's opinion:

On appeal, Appellant asserts his videotaped statements should have been suppressed as unknowingly, unintelligently, and involuntarily made in that he was incapable of understanding his Miranda rights. Appellant contends his confession was the product of a coercive interrogation because the detectives took unfair advantage of his age, illiteracy, and learning disability to obtain the statements. Appellant maintains the detectives' act of lying to him about their evidence in the case and telling Appellant he was a cold-blooded killer who should get the gas chamber were coercive police tactics. We disagree.

Contrary to Appellant's assertion, there is no evidence of any coercive police activity or that Appellant did not understand his rights. Appellant was 18 years old when he was detained and interviewed for Victim's murder, making him an adult, not a juvenile. Appellant relies heavily on the fact that he told detectives he was illiterate during the interview for support yet provides no explanation as to how this affected Appellant's ability to understand his rights... Here, the detectives orally advised Appellant of his Miranda rights three times and Appellant indicated he understood those rights. Although Appellant told the detectives he had a learning disability and left school after the tenth grade, Appellant also told the detectives that his learning disability had no effect on him. Det. Ray testified there was nothing apparent about Appellant that led him to believe Appellant was suffering from any physical condition or any kind of impairment that prevented Appellant from understanding what was happening.

Furthermore, the fact that the detectives provided Appellant with false information regarding the investigation does not invalidate Appellant's confession. Statements obtained by subterfuge "are admissible unless the deception offends societal notions of fairness or is likely to produce an untrustworthy confession."... Det. Ray's act of falsely telling Appellant that the police had eyewitnesses placing Appellant in Victim's car when he was killed does not offend societal notions of fairness and was unlikely to produce an untrustworthy confession.

Viewing the evidence in the light most favorable to the trial court's decision, we find, under the totality of the circumstances, that Appellant's statements to police were made knowingly, intelligently, and voluntarily.

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Court rules that threats to the defendant's ability to maintain contact with his infant daughter were psychologically coercive - the totality of circumstances

In Commonwealth v. Monroe (March 2015) the Supreme Judicial Court of Massachusetts ruled that the investigator's behavior produced a coerced and inadmissible confession. From the court's opinion:

The defendant filed a motion to suppress the statements he made to police officers during a post arrest interview, claiming that even if the waiver of his Miranda rights is deemed valid, his statements were nonetheless involuntary.

On appeal, the defendant argues that the motion judge erred in denying his motion to suppress, claiming that psychological coercion, together with other factors, rendered his statement involuntary and that the admission of his involuntary statement at trial violated his right to due process under the Fourteenth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. More specifically, he contends that the coercive nature of the detectives' statements regarding the fate of his infant child compels a finding that his statement was involuntary.

At this point in the interrogation, Detective Brissette turned the conversation toward the defendant's daughter, asking him her age and about the family's involvement with the Department of Children and Families (DCF). The defendant responded by stating, "Don't tell me they're going to take my daughter 'cause--don't even tell me 'cause I don't want to hear it. 'Cause my daughter is the most important thing in my life." The detective continued on the subject of the defendant's child, suggesting that the defendant was aware of a scheme by the child's mother to get "money from [w]elfare and stuff," but that the defendant was "playing dumb" during the DCF investigation just as he was doing with the questions about his whereabouts when the victims were attacked.

... At 4:45 p.m., the detective stated the following:
"[T]his is the time to talk to us about what happened, okay? You know what happened. This is your opportunity. You're probably going to end up going away for a long time. You're not going to see that two month old baby for a long, long time, okay? This is the time, maybe this morning you met this girl, maybe it was consensual or whatever but this is the time to talk to us about it and what was going on the last couple of--last week, with those two other girls. This is the time to talk to us about it and tell us about it, okay? Look at me, don't keep looking away from us."

The defendant then dropped his head into his hands and began to cry, eliciting from the detective a command to stop "looking away." The defendant explained that "the only reason why I'm crying 'cause I don't want to live a day without seeing my daughter."
This exchange preceded a barrage of references to the defendant's child and girl friend, with the detectives repeatedly telling the defendant to "think of [his] daughter," "think of [his] girl friend," that he would be the reason his girl friend lost custody of their child, and that he would be the reason his child would be raised by strangers. At 4:56 p.m., the detectives, alternating between each of them without any responses from the defendant, stated, "[Y]ou're going to be the reason your girl loses that baby"; " 'Cause you know what, there's a 51A just like there was the last time, [DCF] is already involved with you and with your daughter"; and "At least have that baby grow up with someone they know. The baby might not see you but at least it will be with the mom." Additionally, the detectives provided potential reasons as to why the defendant may have committed the assaults and robberies during this period, stating for example that "things are a little tough right now. You got a three month old that means the world to you and don't know how you're even going to provide for her." The defendant continued to cry, held his head in his hands, was generally unresponsive to the detectives' questions, and stared blankly in front of him.

Within minutes of these repeated references to the possibility that the defendant's girl friend could lose custody of the child, the defendant made incriminating statements regarding the three incidents. He first acknowledged that there was one dollar in E.C.'s backpack the prior week. The defendant then conceded that he had walked with A.G. earlier that morning but maintained that they did not have any sexual contact and that he did not assault her. Detective Brissette later told the defendant that they had evidence of the defendant's DNA on A.G. from the assault that morning. After more prodding by the detectives, the defendant remarked, "I'm going to tell on behalf of my daughter, because I love my daughter ... I'm going to talk--I'm going to tell you the truth because I love my daughter." The defendant then admitted that A.G. performed oral sex on him and that he ejaculated on her exposed buttocks, but stated that she initiated this contact. He also admitted that he robbed E.C. and L.B. and that he had a knife when he robbed L.B., but that he only pulled out the knife once she tried to fight him.

The police interrogation of the defendant, rife with threats to the defendant's ability to maintain contact with his infant daughter, properly may be characterized as psychologically coercive... Here, as evidenced by the videotaped interview, the detectives threatened the defendant with the loss of contact with his child by repeatedly and falsely claiming that if he did not tell them what happened, the child could be taken away and raised by strangers. Although we have stated that a particular tactic generally will not render a confession involuntary, see Selby, 420 Mass. at 664, 651 N.E.2d 843, the particular conduct at issue here, threats concerning a person's loved one, may impinge on the voluntariness of a defendant's confession.

The chronology is telling. The defendant made his first incriminatory statement at 5:05 P.M. after the litany of threats described above, and more specifically three minutes after the detectives repeated their suggestion that the defendant's child would be protected from an adverse custody determination if he confessed. Before he implicated himself in response to the threats regarding his child, the defendant was not told that the police lacked the power to remove the child from his girl friend's custody or that his confession would have no bearing on whether the child's custody status could be changed. The convergence of the defendant's apparent devotion to his child as reflected in his statements and conduct during the videotaped interview, the defendant's ignorance of the authority of the police to effect a change in his child's custody, and the prominence of the psychologically coercive tactics during the interrogation persuades us that the defendant lost the ability to "make an unconstrained, autonomous decision to confess," Baye, 462 Mass. at 256, 967 N.E.2d 1120, quoting Walton, 10 F.3d at 1030, and thus, his will was overborne. That breaking point occurred at approximately 4:57 p.m., when the defendant reacted to Detective O'Rourke's statement, "At least have that baby grow up with someone they know" by stating, "Please don't take my daughter"; hanging his head; and crying. His inculpatory statements followed.

The defendant's personal characteristics, considered as part of the totality of the circumstances of the videotaped interview, also are relevant to our conclusion that his will was overborne by the police tactics involving his child. During the interrogation, the defendant alerted the police to and demonstrated a disturbed emotional or physical state, a factor relevant to voluntariness... Like the defendant in Magee, the defendant in this case was in an emotionally disturbed state at the time of his interview. He informed the police of his condition but nonetheless was subjected to the psychological coercion described above. Here, the defendant was generally unresponsive to police questioning until the police made threats regarding the custody of his child. After that occurred, the defendant cried and invoked his love for his child before providing inculpatory statements to the police. As in Magee, although the defendant's emotional and physical condition is not determinative, his condition is a substantial factor in our consideration of whether his will was overborne by the police tactics.

We consider as well the defendant's age and educational background in our analysis of the voluntariness of the defendant's statements... Here, the defendant had recently turned eighteen years of age and was in the process of obtaining his GED at the time of his arrest. He had emigrated from Africa to the United States just six years prior. While these factors alone are insufficient to warrant suppression of the defendant's statements, the defendant's young age and poor educational background support the conclusion that his statements were involuntary.

Taken together, these factors persuasively demonstrate that the defendant's will was overborne and that, as a consequence, statements made thereafter were involuntary. The use of those statements against the defendant at trial was constitutional error.
Other tactics. We comment briefly on the detectives' use of other interrogation techniques which, although not dispositive, contributed to the defendant's loss of his "ability to make an unconstrained, autonomous decision to confess." ... First, "minimization" during interrogation of a crime of which a defendant is accused, combined with other factors, can render a confession involuntary because minimization carries with it an implied promise that the requested confession will result in lenient treatment... Prior to the defendant making any inculpatory statements, the detectives offered the defendant reasons for why he may have committed the alleged robberies, such as needing money to buy food for himself and his infant daughter, and minimized the rape allegation by pointing out that both the defendant and the alleged victim were old enough to engage in consensual sexual activity.

Second, "[t]he use of false information by police during an interrogation is deceptive and is a relevant factor indicating a possibility that the defendant's statements were made involuntarily." Here, Detective Brissette informed the defendant that they had evidence of his DNA on the victim who had allegedly been assaulted that morning. It is evident from the record that the detectives could not have yet known to whom any DNA recovered from that victim belonged. In combination with the psychological coercion, the minimization and false statement support our conclusion that the defendant's inculpatory statements were involuntary.

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Defendant's statement that he wanted to speak with his uncle, whom he considered "better than a freaking attorney," before answering any further questions was a clear invocation of his right to remain silent

In State v. Maltese (August 2015) the Supreme Court of New Jersey found that a defendant's request to talk to his uncle before answering police questions was a clear invocation of his right to remain silent. From the court's opinion:

In the context of custodial interrogation, once a defendant clearly and unambiguously invokes his right to remain silent, interrogation must cease... Because a police officer must "scrupulously honor[ ]" that right, even when the suspect's invocation is "ambiguous," officers are "required to stop the interrogation completely, or to ask only questions narrowly directed to determining whether defendant [is] willing to continue."

Whether a suspect has invoked his right to remain silent requires analysis of the totality of the circumstances, including consideration of the suspect's words and conduct... The defendant's statement is evaluated in the full context in which the statement is made, including whether the suspect wished to speak to another person in order to seek advice or as a condition before speaking with police... Of particular relevance to this matter, this Court in State v. Harvey, 121 N.J. 407, 581 A.2d 483 (1990), addressed a situation where a defendant requested to speak to someone other than an attorney. In Harvey, we held that the defendant's statement that "he would tell [the officers] about the murder" after he spoke with his father was sufficient to invoke his right to remain silent, and therefore required the interrogation to cease...

The facts presented here clearly indicate that defendant invoked his right to remain silent. Defendant voluntarily went to the police station and initially appeared willing to answer Sergeant Vallas's questions. However, once Sergeant Vallas informed defendant that he had failed the polygraph test and demanded that defendant tell him where his parents were, defendant repeatedly stated that he wanted to speak with his uncle, whom he considered "better than a freaking attorney," before answering any further questions.
As in Harvey, defendant here indicated that he wanted to speak with a family member to obtain advice before proceeding with questioning... defendant here unequivocally asserted more than ten times that he wanted to speak to his uncle before answering any further questions... defendant specifically stated that he wanted to consult with his uncle about "what to do."

Considering all the circumstances, we conclude that defendant affirmatively asserted his right to remain silent.... Under those circumstances, defendant's Miranda rights were not scrupulously honored. Therefore, defendant's statement made to his uncle was obtained in violation of defendant's Fifth Amendment right to remain silent and was properly suppressed by the trial court.

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Value of video in demonstrating the fallacy of the defendant's allegations about the investigator's behavior

In State v. Jones (September 2015) the Court of Appeals of Ohio, Second District, upheld the admissibility of the defendant's confession - rejecting his claims that the confession was the result of the police threatening him with increased penalties, making promises of leniency, engaging in bullying, misrepresenting certain facts as exonerative, misrepresenting the strength of the State's case against him, and using his family, faith, and other circumstances as leverage. From the court's opinion:

Under his First Assignment of Error, Jones contends the trial court erred in failing to suppress statements he made during his April 19, 2013 interview with Detective Dix, claiming those statements were involuntary as a product of coercive police conduct. Specifically, Jones claims that in order to obtain his confession, Detective Dix threatened him with increased penalties, made promises of leniency, engaged in bullying, misrepresented certain facts as exonerative, misrepresented the strength of the State's case against him, and used his family, faith, and other circumstances as leverage. We disagree with Jones's claims.

"In determining whether a pretrial statement is involuntary, a court 'should consider the totality of the circumstances, including the age, mentality, and prior criminal experience of the accused; the length, intensity, and frequency of interrogation; the existence of physical deprivation or mistreatment; and the existence of threat or inducement.' For instance, " '[p]romises of leniency by the police * * * are improper and render an ensuing confession involuntary.' ... Moreover, "if an incriminating statement is forced from the mind of the suspect by the flattery of hope or by the torture of fear, [it] must be suppressed because it was involuntary."

On the other hand, a police officer's assurances that a defendant's cooperation will be considered, or that a confession will be helpful, do not invalidate an otherwise legal confession... . "[A] mere suggestion that cooperation may result in more lenient treatment is neither misleading nor unduly coercive, as people 'convicted of criminal offenses generally are dealt with more leniently when they have cooperated with the authorities.' ... "Likewise, an investigator's offer to 'help' if a defendant confesses is not improper." ... Furthermore, "[a]dmonitions to tell the truth, coupled with a benefit that flows naturally from being truthful, are not coercive in nature."

We have reviewed the transcript of the suppression hearing and the exhibits admitted at that hearing, including the video recording of Jones's interview with Detective Dix. At no point during the interview did we observe Detective Dix bully or intimidate Jones as he has alleged. In fact, contrary to Jones's claims otherwise, Detective Dix was respectful and calm towards him at all times. Moreover, Detective Dix made no threats or promises of leniency in an effort to get Jones to confess, nor did he make any misrepresentations or leverage a confession. To claim otherwise is simply a mischaracterization of the record before this court.

For the foregoing reasons, the totality of the circumstances establishes that Detective Dix's questioning of Jones was not unlawfully coercive. The recorded interview establishes that Jones, a 27-year-old with a partial college education, understood the questions Detective Dix asked, as well as the gravity of the situation that he faced. Jones was interrogated on one occasion for approximately two and one half hours, during which time Jones was not subject to any physical deprivation or mistreatment. In addition, at no point in time did the recording show Jones's free will being overborne by the circumstances surrounding his confession. Instead, Jones was treated respectfully during the entire interview and never once requested to stop the interview. His entire conversation with Detective Dix was voluntary and, as previously discussed, his confession was not the result of any threats or inducement. Accordingly, we conclude the trial court did not err in overruling Jones's motion to suppress the statements he made to Detective Dix during his interview.

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