Legal Updates Fall 2017
Federal Appeals Court upholds confession of “Making of a Murderer” subject Brendan Dassey
In Dassey v. Dittmann (December 2017) the U.S. Court of Appeals, Seventh Circuit, upheld the admissibility of Brendan Dassey’s confession, ruling that the “state court’s determination that defendant confessed to murder voluntarily was not an unreasonable application of Supreme Court precedent.” From the Court of Appeals decision:
Whether Dassey's confession was voluntary or not is measured against a general standard that takes into account the totality of the circumstances…. Some factors would tend to support a finding that Dassey's confession was not voluntary: his youth, his limited intellectual ability, some suggestions by the interrogators, their broad assurances to a vulnerable suspect that honesty would produce leniency, and inconsistencies in Dassey's confession. Many other factors, however, point toward a finding that it was voluntary. Dassey spoke with the interrogators freely, after receiving and understanding Miranda warnings, and with his mother's consent. The interrogation took place in a comfortable setting, without any physical coercion or intimidation, without even raised voices, and over a relatively brief time. Dassey provided many of the most damning details himself in response to open–ended questions. On a number of occasions he resisted the interrogators' strong suggestions on particular details. Also, the investigators made no specific promises of leniency.
After the state courts found the confession voluntary, a federal district court and a divided panel of this court found that the state courts' decision was unreasonable and that Dassey was entitled to a writ of habeas corpus. We granted en banc review to consider the application of the deferential standards of 28 U.S.C. § 2254(d) and the implications of the panel decision for interrogations of juvenile suspects. The state courts' finding that Dassey's confession was voluntary was not beyond fair debate, but we conclude it was reasonable. We re–verse the grant of Dassey's petition for a writ of habeas corpus.
…. Turning to the techniques used in the interrogation, the investigators told Dassey many times that they already knew what had happened when in fact they did not. Such deception is a common interview technique. To our knowledge, it has not led courts (and certainly not the Supreme Court) to find that a subject's incriminating answers were involuntary…. Also, most of the incriminating details in Dassey's confession were not suggested by the questioners. He volunteered them in response to open–ended questions.
…. The requirement that courts take “special care” in analyzing juvenile confessions does not call for habeas relief here. The state appellate court met the requirements for analyzing juvenile confessions by considering Dassey's age, his intellectual capacity, and the voluntary absence of his mother during the interrogation. The state court noted that the officers read Dassey his Miranda rights and that Dassey later remembered his rights and agreed to talk anyway. The court assessed coercion in relation to Dassey's vulnerabilities, including his “age, intellectual limitations and high suggestibility.” The court did not limit its inquiry to only whether the most abusive interrogation techniques were used. The court examined the tones and volumes of the investigators' voices, finding that the officers “used normal speaking tones, with no hectoring, threats or promises of leniency,” though they did prod Dassey to be honest and sought to establish a rapport with him. The court even considered Dassey's physical comfort by noting he sat on a sofa and was offered food, drink, and restroom breaks.
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Massachusetts Supreme Court confirms that minimization/maximization techniques are appropriate
In Commonwealth v. Cartwright (Novemebr 2017) the Supreme Judicial Court of Massachusetts stated that “ …. we have not acted to prevent police investigators from suggesting to a suspect being interviewed that the investigators are convinced, based on evidence, of the defendant’s guilt…. Nor have we concluded that an interviewing officer's efforts to minimize a suspect's moral culpability, by, for example, suggesting theories of accident or provocation, are inappropriate, or sought to preclude suggestions by the interviewers “broadly that it would be better for a suspect to tell the truth, [and] ... that the person's cooperation would be brought to the attention of [those] involved.” From the Supreme Court’s opinion:
Slightly more than six hours after his arrest, following a police interview lasting four hours and forty-seven minutes, the defendant confessed to having killed his mother.
After the break, the interview took on a notably different tone. Condon told the defendant that it was “obvious to us that you were involved with your mom and her disappearance,” and said that his mother had been found dead. After reciting some of the evidence tending to inculpate the defendant, Condon noted, “there's not a question of who was involved in killing your mom.” The officers then began to emphasize their certainty as to the defendant's guilt. They also proffered reasons why he might have killed the victim without being “a bad guy,” including mistake, intoxication, or the possibility that he had been provoked by mistreatment from his mother or his aunt. The officers promised to inform the prosecutor if the defendant was cooperative. The officers acknowledged at trial that they had been trained in techniques known as “maximization” -- i.e., overstating their certainty of the defendant's guilt -- and “minimization” -- i.e., diminishing the severity of the crime and implying the possibility of leniency.
At some point at approximately 2:30 A.M., the defendant said, “I'm fucking going to jail, huh?” and began giving a detailed confession…. Physical evidence at the scene was consistent with much of the defendant's confession.
The defendant moved to suppress his confession as involuntary. He argued that his will was overborne by the police practices of “maximization” and “minimization,” combined with their religious references. A copy of the audio-video recording of his statement was played for the judge. In addition, Condon and Dana testified regarding the tactics used in the interview, and two other police officers testified about the investigation that led to the defendant's arrest. The defendant introduced testimony by an expert on false confessions.
After the motion had been denied, the defendant sought to introduce at trial the testimony of the same expert on false confessions. The trial judge, a different judge from the one who had ruled on the motion to suppress, determined that the proffered expert testimony was not sufficiently reliable within the meaning of Commonwealth v. Lanigan, 419 Mass. 15, 25-26 (1994).
The theory of defense was that the confession was coerced and should not be credited.
The defendant argues that by arresting him on the ground of larceny from a person, notwithstanding that police already suspected him of involvement in his mother's death, the arresting officers violated G. L. c. 263, § 1. That statute provides that “whoever is taken into custody ... has a right to know from the officer who arrests or claims to detain him the true ground on which the arrest is made.” …. The law “does not require police to inform a suspect of the nature of the crime about which he is to be interrogated.” ….As has the United States Supreme Court, …we repeatedly have held that a waiver obtained from a defendant who had been accused of a relatively minor offense, or had yet to be accused of any offense, remains valid when the questioning turns to a more serious offense.
Finally, the defendant argues that his confession was involuntary because it was obtained through police coercion, and therefore that his motion to suppress on this ground should have been allowed. The defendant maintains that police obtained his confession by overstating the strength of the case against him (“maximization”), minimizing the severity of the offense and impliedly promising leniency (“minimization”), and, above all, appealing to the defendant's religious sensibilities. Having carefully reviewed the audio-video recording, we discern no indication that the defendant's will was overborne. We conclude, as did the motion judge, that the defendant's confession was voluntary, and therefore admissible.
We turn first to the techniques of “maximization” and “minimization,” which the defendant contends contributed to his purportedly involuntary confession. As mentioned, the investigating officers told the defendant that they were certain that he had killed his mother. They suggested, however, that her death might have been an accident, or that, if intentional, the defendant might have been provoked or under the influence of alcohol. The officers also told the defendant that, if he cooperated, they would “speak to the district attorney” and tell the prosecutor of his cooperation.
A false comment concerning the strength of the Commonwealth's case, in conjunction with minimization of the severity of the charges, may in some cases render a confession involuntary and thus inadmissible…. That being said, we have not acted to prevent police investigators from suggesting to a suspect being interviewed that the investigators are convinced, based on evidence, of the defendant's guilt…. Nor have we concluded that an interviewing officer's efforts to minimize a suspect's moral culpability, by, for example, suggesting theories of accident or provocation, are inappropriate, or sought to preclude suggestions by the interviewers “broadly that it would be better for a suspect to tell the truth, [and] ... that the person's cooperation would be brought to the attention of [those] involved.”
In this case, even if police expressed an unwarranted level of certainty about the defendant's guilt, their statements fell “far short of an intentional misrepresentation that 'may undermine the defendant's ability to make a free choice.”
Our decision in DiGiambattista is not to the contrary. In that case, we held only that minimization techniques, combined with intentionally false statements of fact, rendered a confession involuntary…. Moreover, we note that the DiGiambattista court itself expressly disclaimed the suggestion that “an officer's use of the standard interrogation tactic of 'minimization,' by itself, compels the conclusion that a confession is involuntary.”
… Finally, we note that nothing about the defendant's personal characteristics made him particularly vulnerable to coercive tactics. Our review of the audio-video recording indicates that the defendant was alert and responsive, and that he spoke fluently in English. Although he is an immigrant, he had lived in the United States since childhood. In sum, the defendant's will was not overborne, and the judge correctly determined that his confession was voluntary.
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The value of recording interrogations – demonstrating a knowing waiver of rights
In State v. Gomez (November 2017) the Court of Appeals of Ohio, Twelfth District, Butler County rejected the defendant’s claim that he did not knowingly, intelligently, and voluntarily waive his Miranda rights.
From the Court of Appeals opinion: The Court has heard testimony today about the Defendant's ability to understand the Miranda rights as read to him. In addition to the testimony from Detective Henson, S.O., and the interpreter, as part of the evidence introduced by the state at the suppression hearing, the trial court viewed the video recording of the May 30 interview of Gomez by Detectives Henson and Nichols. The testimony elicited from Detective Henson and the interpreter present during this interview is confirmed by the video recording, which this court has also viewed in its entirety.
The Court notes that the Miranda rights were read to the Defendant in Spanish. And while the Defendant, there was testimony that the Defendant's first language is not Spanish or English, there was ample testimony that he speaks the Spanish language and some of the English language.
The Court notes that at no time during the interview that was conducted in Spanish and English did the Defendant indicate that he could not understand either the interpreter or the law enforcement officers. In fact, to the contrary, the Defendant would, when asked a question by the police officer, not hesitate to correct or clarify his answer even when it was contrary to the officer's question.
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The value of recoding interrogations – demonstrating a violation of rights
In Rodriguez v. McDonald (September 2017) the U.S. Court of Appeals, Ninth Circuit, ruled that the investigators violated the defendant’s Miranda rights. From the Court of Appeals opinion:
That videotape and transcript rebut by clear and convincing evidence the state courts' factual determination that the detectives honored Mr. Rodriguez's invocation of his right to counsel—a factual determination that, on the record before the state trial court, was unreasonable.
In this case, it is undisputed that Mr. Rodriguez invoked his right to counsel….
Rodriguez: Can I speak to an attorney?
Officer: You tell me what you want.
Rodriguez: That is what I want.
Officer: That's fine bro we stop because we can't talk to you anymore, okay, so.
Officer: You're going to be charged with murder today.
Instead of immediately ceasing their interrogation… the detectives told Mr. Rodriguez that he was “going to be charged with murder today,” and to “remember that [they] tried to give [Mr. Rodriguez] the opportunity ... to straighten things out.” One of the detectives then explicitly asked Mr. Rodriguez about the case:
Officer: Do you know Easy from Highland Park? You don't know him?
Officer: You don't know him? This one here? You don't know him?
Officer: The girl that died, that's his girlfriend.
This “express questioning” was clearly custodial interrogation… The detectives did not honor Mr. Rodriguez's invocation of his right to counsel.
The videotape and transcript of Mr. Rodriguez's interview constitute clear and convincing evidence sufficient to rebut the state courts' factual finding that the detectives honored Mr. Rodriguez's invocation of his right to counsel by immediately ceasing their interrogation…. After reviewing the record available to the state courts, including the videotape of the interrogation and the transcript of that videotape, no appellate panel could reasonably conclude otherwise.
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The value of recording interrogations in determining custody
In Simms v. Commonwealth (September 2017) the Court of Appeals of Kentucky upheld the lower court’s admission of the defendant’s incriminating statements, rejecting his claim that he was in custody at the time of questioning but was not advised of his rights.
From the Court of Appeals opinion: S.R., a twelve-year-old girl, told a school friend that she had a sexual encounter with Simms, her adult cousin, while he was babysitting her. At the police station, Boarman told Simms he was not in custody and was free to leave at any time. Boarman also told Simms that he could get up and walk out the door if he was uncomfortable. After these initial statements, Boarman confronted Simms with the lab results. Simms responded that he wanted to get something off his chest. Simms stated that S.R. had come on to him and told him that she had been looking at pornographic magazines and wondered how it might feel for someone to do to her what she had seen in the magazines. Simms admitted that S.R. touched his penis, he touched her vagina, and he performed oral sex on her. He then ended the interview and left the station. He was arrested the next day.
On appeal, Simms first asserts that he was the subject of a custodial interrogation during the police station interview with Detectives Simms and Carter.
Simms points to the following factors to support his claim that he was in custody: the detectives initiated contact with him; the interview room was a confined space; the detectives were clearly in authority and had declined his offer to speak at his home; and the police department is an inherently intimidating locale. These points lend themselves to being addressed in turn.
First, the interview was not converted into a custodial interrogation merely because Simms was a suspect or because the questioning was initiated by the police. It is a basic requirement of law enforcement that police be able to interview identified suspects. Moreover, the interview did not become a custodial interrogation because it occurred at the police station. Although Kentucky recognizes a presumption that the interrogation in a police station interrogation room is custodial in nature, …, that presumption can be overcome, if it is shown, “e.g., that the defendant was informed that he was not under arrest, that he was free to leave at any time, and that he did, in fact, leave at the conclusion of the interrogation.”
The mere fact that an individual is the focus of a criminal investigation does not entitle him to Miranda warnings prior to police questioning…. Interrogation does not equal custody: Miranda does not forbid non-custodial interrogation. Custody does not materialize, moreover, merely because an interviewee admits to something potentially incriminating. Accordingly, the trial court did not err in denying the motion to suppress.
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Value of recording interrogations in examining the claim of intoxication
In Commonwealth v. Tremblay (September 2017) the Appeals Court of Massachusetts, Suffolk, reversed the lower court’s opinion that the defendant “was so intoxicated when he was questioned at the police station that he was incapable of making a knowing and intelligent waiver of his Miranda rights.” From the Appeals Court decision:
The judge connected his subsidiary finding that the defendant was intoxicated to his ultimate finding that the defendant was incapable of waiving his Miranda rights, and to his ruling that the Commonwealth did not meet its burden of proving a valid waiver of Miranda rights, by drawing inferences from the appearance and conduct of the defendant during the second, recorded, interrogation. Our independent review of the same evidence leads us to reach a different conclusion, namely, that based on the conduct of Sergeant Detective Stratton and the defendant's statements and behavior throughout the course of the videotape, the Commonwealth satisfied its heavy burden to prove that the defendant made a valid waiver of his Miranda rights.
The judge found that the defendant was not paying attention when Sergeant Detective Stratton went over his Miranda rights again prior to the second interview. When asked if he understood each right, the defendant responded, “Yes” or “Obviously.” While the defendant does appear to be more interested in explaining why the arrest warrant was incorrect, we do not regard that as evidence that he did not understand what the warnings meant. The defendant was not a stranger to police. He had had numerous interactions with the police in the past, had been arrested on at least one prior occasion, and demonstrated knowledge of police procedures and the criminal justice system.
The judge also found that the defendant had “great difficulty walking” to his seat, and that he stumbled several times before sitting down. While the defendant does appear to stumble when he first enters the room with handcuffs on, at several points during the interview, the defendant stands up, and each time he appears quite steady on his feet. At one point, he stands to demonstrate how he hit the victim, and raises his knee while standing steady on one foot. When the defendant is led out of the room at the end of the interview, he shows no signs of unsteadiness or difficulty walking.
The judge also found that the defendant “sounds drunk and seems to have trouble speaking clearly.” To the contrary, the videotape demonstrates that the defendant is alert and his answers to questions are responsive, coherent, and often “quite self-serving.”
The defendant's speech is clear and he appears alert and awake, not groggy or drowsy. He recounts a relatively complex series of facts replete with specific details, such as bus numbers, the name and location of a liquor store, the victim's home telephone number, and the location of specific items in the victim's apartment. The defendant corrects Sergeant Detective Stratton at one point when he asked, “so what happened tonight?” The defendant replies, “actually, wait a minute, it didn't happen tonight.”
Conclusion. This is a case in which a conscientious judge viewed a videotaped interrogation of the defendant that lasts approximately forty-five minutes and inferred from the defendant's appearance and conduct that he was intoxicated to such an extent that he was not capable of waiving his Miranda rights. However, our independent review of the same documentary evidence leaves us with a settled conviction that the defendant had the capacity to make a knowing and voluntary waiver of his rights and that he did so. The same evidence persuades us that the defendant's statements made during the first and second interviews were voluntary.
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Value of recording to assess understanding and waiver of rights
In U.S. v Hernandez-Gamez (November 2017) the U.S. District Court, S.D. California rejected the defendant’s claims that he believed he did not have a choice as to whether or not he should talk to the investigators. From the District Court’s decision:
The defendant argues that he answered questions prior to receiving Miranda warnings and that these answers should be suppressed. The interrogation was videotaped. Defendant said he understood Spanish and the interrogation was conducted in Spanish. A limited number of questions were asked by agents in the interrogation room about biographical information (including birthplace and country of citizenship) prior to the Miranda warnings. Questions seeking routine biographical booking information need not wait for Miranda warnings.
Next, he argues that despite Miranda warnings being given, Defendant did not believe he had a choice about whether to continue talking. As a result, his waivers were involuntary and unintelligent. His contention is belied by the interrogation video and the totality of the circumstances.
Miranda warnings were given. Defendant gave his assent and signed his name on a form in Spanish advising him of his rights. He was told unambiguously that he could remain silent. He was told unambiguously that he could request counsel. He was told unambiguously that he could stop answering questions at any time. There is no indication that his waiver was involuntary. When asked if he understood his rights, Defendant said he wanted to answer questions. He stated, “I am willing to give a statement and to answer the questions. At this time I do not wish to have an attorney. I understand and I am aware of what I am doing....” He indicated that he understood what he just said. He summarized the meaning of his words as follows: “Well, that you are not pressuring me, or anything. That I am giving my statement because I want to.”
No verbal threats were made. No demeaning comments or implied threats were heard. The two agents were not wearing exposed weapons. Defendant said nothing about being hungry, thirsty, or experiencing physical or mental discomfort. Defendant appeared to be comfortably dressed. There is no indication that Defendant's waiver was the product of intimidation, coercion, or deception.
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Value of recording interrogations to determine if the suspect’s will was overborne by promises of leniency
In Guevara v. Raemisch and Coffman (October 2017) the U. S. District Court, D. Colorado, upheld the lower court’s decision to admit the defendant’s incriminating statements and rejected his claim that his will was overborne as a result of promises of leniency. In their opinion the court offered a very detailed analysis of implied promises of leniency. From the District Court’s decision:
The critical question is whether the state court reasonably determined that the detective's implied promises to Mr. Guevara during the interview were not coercive, and, therefore did not render his confession involuntary.
The DVD of Mr. Guevara's videotaped interview with Denver Police Department Detectives Martinez and Dennison reflects that the following statements were made during the interrogation of the defendant:
- You can't lie your way out of this. You have to tell the truth about it.... you're a young man, you can get past this. There's some reason why this happened. And you can get by, you want to have kids, you're nineteen years old—
- “[Y]ou gotta' be under a lot of stress right now trying to think, ‘How do I get out of this?” The easiest way is just to tell us exactly what happened and why it happened.’ ”
- [Y]ou're not gonna have any future by telling us these lies.
- [Y]ou have a lot to lose. It sounds like you have a prospective music career, this rap you do and stuff, and you have a girlfriend and you want to have a baby and stuff, and that's what I was trying to tell you before, you can recover from this because you're a young man. You can recover from it ok?
- [W]hen this goes to trial, and it is going to go, unless something changes between [sic] then and you know, you decide to talk about.
- It's not going to make things worse for you. Just get it over with and you know, talk to us about it, and get on with your life. You know, so make this the starting point of coming back up and getting this behind you, you know.
- You know, this is the low point, everything's going to be up from here, you know. I mean, we can't lie to you and say you probably won't go to jail, but, you know....
After this last statement by the detective, Mr. Guevara admitted that he stabbed Mr. Baca twice in the stomach, but didn't know that Mr. Baca had been “butchered.”
At the end of the interview, Mr. Guevara stated:
I just need to know real quick, I want, like, an estimate on what, how much, ...time are they going to sentence me to? Cause I know it ain't gonna be no five, six years, it's gonna be more. I need to know so I can call my sister and let her know.
The detectives did not respond to Applicant's inquiry, but instead asked him if he needed a drink of water. The interview then concluded.
The Colorado Court of Appeals applied the clearly established totality of the circumstances test in determining that Mr. Guevara's confession was not involuntary.
… no Supreme Court case has held, under the totality of the circumstances test, that a police officer's implied promises of leniency constituted coercive police conduct that rendered a confession involuntary, where the circumstances of the police interrogation otherwise indicated that the defendant's statements were made of his own free will.
Accordingly, [this] Court looks to applicable Tenth Circuit law for guidance.
(2) Tenth Circuit case law
The Tenth Circuit's decisions in Sharp, Clanton, and Lopez provide a starting point for the Court's analysis.
In Sharp v. Rollings, the court addressed the habeas petitioner's claim that her confession to the police was involuntary… The relevant facts were as follows: During a police interrogation, the detective asked the petitioner, who was then homeless, to explain what had happened to the murder victim. The petitioner responded by describing the attack on the victim by two other homeless individuals and stating that she did not participate in the attack, but instead tried to talk the others out of killing the victim…. after the detective told petitioner that she was in a “serious situation,” petitioner confessed to helping burn the victim's belongings. The petitioner immediately asked the detective if she was going to jail. The detective responded: “No, no, no, no, no, no, no, no [no, no]. You are a witness to this thing so long as you do not do something dumb and jam yourself. If you were scared, explain to me that you were scared---...Just don't tell me no if I ask you something.” Ms. Sharp then proceeded to make other incriminating statements, was arrested at the conclusion of the interview, and was ultimately convicted of felony murder.
On appeal, the Tenth Circuit found that the detective, after receiving an incriminating statement from the petitioner, “immediately and unequivocally reassured [the petitioner] she was not going to jail. In short, he promised she would not go to jail despite her confession.” … His assurance was a promise that [the petitioner] would be treated leniently.”
In Clanton, the Tenth Circuit concluded that a police officer…should have known that his apparent promise of leniency—i.e., telling the suspect that “he would get a twenty-five year sentence if he didn't confess, but would ‘get off lightly’ if he confessed to a pattern of events suggested by the officer—together with the officer's false statements to the suspect about the evidence against him, “would make it more likely that the confession would be considered involuntary.”
In Lopez, federal agents… promise[d] the defendant that he would spend fifty-four fewer years in prison if he would confess to killing the victim by mistake. The Tenth Circuit found that the agent's express promise of leniency, together with the agents' subsequent reinforcement of that promise by telling the defendant about other suspects who had received lenient sentences after confessing to killing by mistake…..were sufficient circumstances to overbear the defendant's will and make his confession involuntary.
The present case is factually distinguishable from Sharp, Clanton and Lopez. In those cases, the Tenth Circuit found that the confessions were induced by promises that were more express and specific than the detectives' implied promises to Mr. Guevara that he may have a future if he told them the truth about what happened to Mr. Baca.
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Court rules that the use of the Reid Technique did not violate the defendant's due process rights
In U.S. v Monroe (September 2017) the U.S. District Court for the District of Rhode Island followed the established legal precedent in finding that the use of the Reid Technique did not violate the defendant’s due process rights. From the District Court’s decision:
The Reid Technique is the most-used interrogation technique by law enforcement in the United States. John E. Reid & Associates, Inc., the developer of the technique, traces its origins to the 1940s. The method consists of a "Behavioral Analysis Interview" and an "Interrogation." The Behavioral Analysis Interview is largely intended "to determin[e] whether the suspect is lying, which is generally indicative of guilt." If, after the Behavioral Analysis Interview, the investigator feels that the suspect is not being truthful, an Interrogation generally follows. …. "the Reid Method advocates the use of interrogative techniques that have been labeled minimization and maximization, which have been deemed permissible by" courts.
While Monroe argues the Reid Technique was used "to discourage [him] from not admitting guilt by presenting socially accepted alternatives . . . in order to prod him into choosing the lesser guilt inferring alternative," there is nothing impermissible as a matter of law with this interrogation approach; it falls within the range of acceptable interrogation tactics sanctioned by the First Circuit. Monroe offers no authority, and the Court could not find any, for the contention that an agent's minimization of crimes, under these facts, renders a suspect's statements involuntary. Thus, Monroe's argument that the Reid Technique violated his Due Process rights must fail.
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Court finds juvenile confession involuntary: noting that as in the Elias case, the investigators did not appropriately change their approach for a juvenile interrogation
In the People v. T.F. (October 2017) the Court of Appeal, First District, California found that juvenile T.F.’s incriminating statements were involuntary and should have been suppressed. From the Court of Appeal’s decision:
T.F. claims his confession was involuntary under the due process clause of the Fourteenth Amendment, as it was the product of the type of coercive techniques condemned in Miranda, which had “overborne his will.”
Exercising this discretion, we agree that T.F.'s confession was not voluntary.
T.F. relies on Elias V., in which our colleagues in Division Two of this judicial district detailed the very real dangers of false confessions in cases involving police interrogation of juveniles, particularly adolescents. In Elias V., the court focused on the use of an interrogation approach referred to as “ ‘maximization/minimization’ ” that involves a “ ‘cluster of tactics' designed to convey two things. The first is ‘the interrogator's rock-solid belief that the suspect is guilty and that all denials will fail. Such tactics include making an accusation, overriding objections, and citing evidence, real or manufactured, to shift the suspects mental state from confident to hopeless .... [¶] In contrast, minimization tactics are designed to provide the suspect with moral justification and face-saving excuses for having committed the crime in question,’ a tactic that ‘communicates by implication that leniency in punishment is forthcoming upon confession.’ ”
… The court warned of the dangers posed by the use of these maximization and minimization tactics with juveniles. The court observed that even the police interrogation manual (Criminal Interrogation and Confessions, 2013 Inbau, Reid, Buckley and Jayne) “notes that although the use of deception, including the use of ‘fictitious evidence which implicates the subject,’ [citation], has been upheld by the courts [citations], ‘this technique should be avoided when interrogating a youthful suspect with low social maturity ...’ because such suspects ‘may not have the fortitude or confidence to challenge such evidence and depending on the nature of the crime, may become confused as to their own possible involvement if the police tell them evidence clearly indicates they committed the crime. Factors such as the adolescent's level of social responsibility and general maturity should be considered before fictitious evidence is introduced.’ ”
We have observed that children “generally are less mature and responsible than adults,” [citations]; that they “often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them,” [citation]; that they “are more vulnerable or susceptible to ... outside pressures” than adults, [citation]; and so on. [Citation.]
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Court rejects the testimony of Dr. Brian Cutler on false confession issues
In US v. Rodriquez-Soriano (December 2017) the US District Court, E.D. Virginia, rejected the proposed testimony of Dr. Brian Cutler on false confession issues on the basis that it raised “insurmountable reliability issues and would invade the province of the jury.” From the District Court’s opinion:
Dr. Cutler would have testified that individuals are susceptible to changing how they think, act or behave in response to social influence, that certain practices employed by law enforcement in interrogations are designed to pressure a suspect to confess, that such practices may increase the likelihood that a person would provide false statements to law enforcement, that innocent persons may falsely confess to crimes they did not commit, and that these practices were employed in the interrogation of Mr. Rodriguez-Soriano.
The Fourth Circuit has not directly opined on the admissibility of expert testimony regarding false confessions. Most circuit courts to directly consider the admission of expert testimony on false confessions have determined such testimony is inadmissible. … Similarly, district courts have found false-confession expert testimony inadmissible.
One basis for excluding false confession expert testimony is that the science of false confessions is unreliable…. There is no “known or potential error rate” that can be attributed to false confession studies.” The multitude of variables at issue in any given interrogation precludes any effort to reduce the field of inquiry to a science. Thus, while an expert could identify “risk factors,” he cannot opine on the truthfulness of a particular defendant's testimony with any degree of certainty…. Indeed, during a colloquy with this Court, Dr. Cutler acknowledged that he would be unable offer an opinion as to whether any particular statement by Mr. Rodriguez-Soriano (or any other person) was in fact false, or as to whether Mr. Rodriguez-Soriano's confession was false.
In addition to the questionable reliability of false confession science in general, the Court has serious doubts about the reliability of Dr. Cutler's testimony in particular. Dr. Cutler's understanding of this subject matter appears to be substantially derivative of Dr. Richard. A. Leo's research in this field. However, numerous courts have excluded as unreliable testimony from Dr. Leo that is similar to the proffered testimony here…. Dr. Leo's work has also been the subject of academic criticism, in particular from Judge Paul Cassell. Judge Cassell reviewed Dr. Leo's work and found that may of the suspects Dr. Leo claims confessed falsely are actually almost certainly guilty… Cassell and other academics have also called Dr. Leo's methodology into doubt. For these reasons, the Court finds that Dr. Cutler's proposed expert testimony is unreliable.
The Court finds that even if Dr. Cutler's proposed testimony were reliable, it would fail the second prong of the analysis addressing relevance. Dr. Cutler's testimony would be unhelpful to the jury, which is fully capable of assessing the truthfulness of Mr. Rodriguez-Soriano's alleged confession. Such testimony would thus usurp a critical function of the jury.
The Court finds that the risk of misleading the jury substantially outweighs whatever marginal probative value such testimony might offer. This is particularly true given that Dr. Cutler's testimony would be entirely generalized and not specific to this case, as described above.
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