Legal Updates - February 2009
Ambiguous lawyer request
In the case of Scott v. Epps, et al., (November, 2008) the U. S. District Court, N.D. Mississippi, upheld the decision that the defendant's statement "I probably need to talk to a lawyer" was not an unambiguous request for a lawyer, but rather "an admission that he was in substantial legal difficulty." In this same the case the court rejected the defendant's arguments that his confession was not voluntary because "he had been abusing methamphetamines and had not slept in the six days prior to his arrest." The court also rejected his claim that he was coerced into confessing. Click here for the complete decision.
Two cases regarding an ambiguous request to invoke Fifth Amendment right to remain silent
In the case of Baez v. State, the Texas Court of Appeals, Houston, the appellant asserted that in the video of his interrogation, in response to Officer Mosqueda's questions about the murder, when appellant asked the officer, "do I have to say," appellant invoked his Fifth Amendment right to remain silent and indicated his intention to terminate the interview. The Court of Appeals rejected this claim, stating that "the totality of circumstances in this case supports the conclusion that appellant, knowingly, intelligently, and voluntarily waived his rights by acknowledging his understanding of his rights at least three times and discussing many incriminating facts for forty minutes with Officer Mosqueda....... Appellant's inquiry, "do I have to say," is one question in the context of the entire interview throughout which appellant answered Officer Mosqueda's questions without hesitation and described many incriminating details after thrice acknowledging his understanding of his rights..... By inquiring, "do I have to say," appellant, at best, expressed ambivalence toward waiving his rights, but appellant did not unambiguously or clearly express a definite desire to invoke his right to remain silent." Click here for the complete decision.
In the case of People v. Telea, the Court of Appeal, First District, California upheld the trial court's conclusion that the defendant's statements during his interrogation that "That's all I have to say" or "I got nothing else to say." Did not constitute an invocation of his right to silence. The Court of Appeal stated, "We have reviewed the transcript and videotape of the November 9 Burlingame interrogation and reach the same conclusion as the trial judge. It is certainly true that defendant's repeated comment that he had nothing else to say could have signaled his desire to end the interrogation; viewed in isolation, the words he chose might have been intended to invoke his right to remain silent. More was required, however, before the officers were required to cease their questioning." Click here for the complete decision.
Two cases regarding the value of video recording an interrogation
In the Matter of Richard Uu., alleged to be a juvenile delinquent. Richard Spinney, as Delaware County Attorney, Respondent; Richard Uu, Appellant, the Supreme Court, Appellate Division, Third Department, New York points out the value of recording an interrogation. In this case Richard Uu had made incriminating statements about sexual contact with a four year old girl. At a juvenile delinquent proceeding he tried to suppress his statements "on the grounds that he did not make a knowing and intelligent waiver of his Miranda rights and that the waiver was obtained in violation of his right to counsel."
The court stated that "viewing the totality of the circumstances surrounding the Miranda waiver and subsequent confession, we conclude that Family Court correctly declined to suppress respondent's statements as involuntary." The court went on to say, "Furthermore, upon a review of the videotape of respondent's interview, we find no basis to conclude that respondent's admissions were involuntary. The entire interview was brief in duration, lasting approximately 45 minutes and took place at a reasonable time of the day in a room certified for the questioning of juveniles. Additionally, a DSS caseworker was present with respondent during the entirety of the interview. There is no evidence that respondent was tricked, threatened or coerced into confessing, or that the strategies used by the investigator were so fundamentally unfair so as to have denied respondent due process or "create[d] a substantial risk that [he] might falsely incriminate himself" Considering the totality of the circumstances surrounding respondent's questioning, we cannot say that his statements were involuntarily made." This case also illustrates a valid waiver from a 14 year old. Click here for the complete decision.
In the case of Perales v. State (October 2008) the Court of Appeals of Texas, Fort Worth upheld the trial court's decision to admit the defendant's video taped confession. The defendant had claimed that it should have been excluded because his confession was involuntarily given because "(1) he was too young and inexperienced to intelligently waive his rights, and (2) his confession was induced by promises of benefits that he would receive if he confessed and by lies that the investigating detective told him during the interrogation."
In their decision the Cour of Appeals points out that "We have reviewed the video and the transcript of the video admitted at trial. The video reveals that Detective Dishko, the investigating detective, read Perales his rights-as set forth in the code of criminal procedure article 38.22, section 2(a) - within the first minutes of the interrogation. He asked Perales if he understood his rights, and Perales indicated that he did. Perales then signed a form to further verify that he understood his rights.
Later the Court of Appeals points out "During the interrogation, Detective Dishko told several lies, as he candidly admitted during the suppression hearing. Although Detective Dishko knew that Perales could not receive the death penalty because of his age (he was seventeen at the time of the offense), he told Perales that he possibly could receive the death penalty. At the suppression hearing, Detective Dishko admitted that he had lied about the use of the death penalty and explained that he had done so because he "wanted to plant that seed in [Perales's] head" to encourage Perales to cooperate.
Detective Dishko told Perales during the interrogation, "How was it an accident? I want you to explain it to me so I-convince me. 'Cause if you want me to believe that Julis, I've got to convince a jury." At the suppression hearing, Detective Dishko admitted that this was also inaccurate. The detective also told Perales, "It would benefit you to speak to me about your involvement because I know that [Birmingham] was the one that pulled that trigger." At the suppression hearing and at trial, Detective Dishko maintained that he never promised Perales anything in return for Perales's statements.
At the end of the suppression hearing, the trial court concluded that Perales's statements were the result of a custodial interrogation, that Perales received the statutorily required warnings, and that "under subsection 2B [Perales] waived those rights and proceeded to answer the officer's questions." Click here for the complete decision.
The use of Trickery and Deceit
In the case of Minnesota v. Mahony, (Feb., 2009) the Court of Appeals examined the issue of a police interrogator utilizing "deceptive and stress-inducing" interrogation practices and points out that when considering the totality of circumstances such tactics do not necessarily require that the defendant's confession be suppressed. The court stated:
"Again, relying on the totality of the circumstances, the court can suppress statements made in response to deceptive and stress-inducing interrogation practices. State v. Jones, 566 N.W.2d 317, 326 (Minn.1997). But suppression is not required, even when police have used promises of leniency or lied about the existence of evidence, if, under the totality of the circumstances, the defendant's will was not overborne and the defendant was not induced by the deception or promises to confess. See, e.g., State v. Farnsworth, 738 N.W.2d 364, 374 (Minn.2007) (concluding that use of empathic approach does not alone make confession involuntary); Jones, 566 N.W.2d at 326; (refusing to suppress despite officer's lie about existence of incriminating videotape); State v. Williams, 535 N.W.2d 277, 288 (Minn.1995) (refusing to suppress statements despite officers' discussion theorizing and speculating about evidence); Thaggard, 527 N.W.2d at 810 (stating that use of trickery and deception is to be considered along with other factors and refusing to suppress statements after police falsely asserted that they had evidence implicating defendant); State v. Slowinski, 450 N.W.2d 107, 112 (Minn.1990) (refusing to suppress statements despite police offer to argue for psychiatric help in lieu of prison)." Click here for the complete decision.
Faulty Miranda Warnings
In the case of, Rigterink v. State, (Jan., 2009) the Florida Supreme court ruled that "With regard to the Miranda claim, we hold: (i) that Rigterink was in custody for purposes of Miranda; (ii) that the right-to-counsel warning he received was constitutionally deficient; and (iii) that the admission and publication of his videotaped confession was harmful error. As a result of this holding, we reverse Rigterink's convictions and sentences and remand for a new capital trial."
The deficient Miranda warning was that "the PCSO detectives provided Rigterink with a defective right-to-counsel warning both verbally and in writing. Specifically, the relevant portion of the warning stated that Rigterink had "the right to have an attorney present prior to questioning." (Emphasis supplied.) Therefore, Powell directly controls this issue. The right-to-counsel warning was materially deficient because it did not accurately and clearly convey one of the central components of Miranda: The custodial subject enjoys a right to the presence of counsel during, not merely before, a custodial interrogation." Click here for the complete decision.
Confession suppressed because interrogators ignored request to stop the questioning
In the case of, State v. Rogers, (Jan., 2009) the Supreme Court of Nebraska found that the police did not scrupulously honor the defendant's effort to invoke her right to remain silent. The court stated that: "In this case, we conclude that Rogers unambiguously invoked her right to remain silent. When Wheeler kept insisting that they were going to "get to the bottom of this" and "get the whole truth," Rogers responded: "No, I'm not. I'm done. I won't." But Wheeler pressed on at length about how guilt would "eat" at Rogers "forever and ever" if she did not confess. While working these themes, Wheeler tried to reengage Rogers with direct questions, but Rogers answered only with simple "no's." When Wheeler then tried the accusation, "and it wasn't a fall down the stairs. Something else happened," Rogers responded in no uncertain terms: "Yes, it was. I didn't-I- I'm not talking no more." (Emphasis supplied.)
Nothing before or after Rogers' statements marred their clarity. Rogers said that she was "done," she would no longer be helping Wheeler to "get to the bottom of this," and she was "not talking no more." Furthermore, we observe that Rogers' demeanor and tone when making these statements conveyed the finality with which she intended them. Rogers did not seek to reengage in conversation, but sat silent immediately after making the statements.
Not only should a reasonable police officer in Wheeler's position have understood those statements to be an invocation of the right to remain silent, it appears that Wheeler actually understood the statements in this way, because Wheeler responded: "Well, just listen then." Wheeler's instruction to "just listen" implicitly acknowledged that Rogers intended to stop talking. But Wheeler's training, by her own admission, had apparently not informed her that a suspect's statements, such as "I'm done" and "I'm not talking no more," should be scrupulously honored. So, Wheeler pressed on, and was eventually able to extract a confession.
We therefore conclude that it was error for the trial court to deny Rogers' motion to suppress and to admit the confession that was taken in violation of Rogers' Miranda right." Click here for the complete decision.
Confession from defendant with mild retardation (I.Q. 65) upheld
In the case of State v. Kenney, (Jan., 2009) the Superior Court of New Jersey, Appellate Division, upheld the trial court's opinion to admit the confession of the defendant who had an I.Q. of 65. The court found that: "Judge Cleary then noted that defendant's I.Q. ranged from fifty-seven to eighty, and although that places him in the range of mild to moderately mentally retarded, defendant exhibited "street smarts" and had helped his younger brother get an apartment when he was just fifteen. The judge also agreed with Michals' opinion that, although defendant does have a personality disorder, it is not of the type that would cause an inability to understand his constitutional rights. The judge also relied on her colloquy with defendant at the commencement of the Miranda hearing, and his keen understanding of legal concepts and impressive vocabulary. Finally, she relied on the tape of defendant in which he reviewed his statement and made changes.
Judge Cleary's factual findings are well supported by the record. She correctly applied the controlling legal principles in concluding that, based on the totality of the relevant circumstances, defendant's will was not overborne and that he knowingly, voluntarily and intelligently waived his Miranda rights before voluntarily making his statements to the police. There is no basis for reversal of her order denying defendant's motion to suppress his statements." Click here for the complete decision.
Confession found involuntary when interrogator misrepresented the charge
In the case of, McGhee v. State, (Dec., 2008) the Court of Appeals of Indiana held that the detective's erroneous statement during an interview with defendant that it was not against the law for an uncle to have consensual sex with a niece rendered involuntary defendant's subsequent confession that he had sex with his adult niece.
The court stated that: "McGhee argues that his confession was involuntary because Detective Cole obtained it by using "misrepresentations of fact and promises of leniency." Specifically, he notes that, during the videotaped interview, Detective Cole told McGhee that "it's embarrassing sometimes for an uncle to have sex with his niece, but it's not against the law if she wanted it." (State's Ex. 7). According to McGhee, his confession was obtained as a result of Detective Cole telling him that his conduct was not criminal, rendering the confession involuntary and inadmissible. We agree."
The court went on to say, "At the very least, Detective Cole's comments constituted an implied promise that McGhee would not be prosecuted if he admitted to having sex with K.O. and it turned out that the sex was consensual. Obviously, that was a promise that Detective Cole, like the officer in Ashby, could not keep. McGhee's confession was brought about by Detective Cole's misstatement of the law and was therefore involuntary and inadmissible." Click here for the complete decision.
Does feigned sympathy and rationalizing the defendant's criminal behavior render a subsequent confession inadmissible?
In the case of, State v. Parker, (Dec., 2008) the Court of Appeals of South Carolina found that the defendant's claim that the interrogating police officer's interview technique of feigned sympathy and rationalization was a factor indicating his statement was not given voluntarily was without merit. The court stated that, ""Few criminals feel impelled to confess to the police purely of their own accord without any questioning at all.... Thus, it can almost always be said that the interrogation caused the confession.... It is generally recognized that the police may use some psychological tactics in eliciting a statement from a suspect.... These ploys may play a part in the suspect's decision to confess, but so long as that decision is a product of the suspect's own balancing of competing considerations, the confession is voluntary."
"Excessive friendliness on the part of an interrogator can be deceptive. In some instances, in combination with other tactics, it might create an atmosphere in which a suspect forgets that his questioner is in an adversarial role, and thereby prompt admissions that the suspect would ordinarily only make to a friend, not to the police." Miller v. Fenton, 796 F.2d at 604 (3d Cir.1986), cert. denied, 479 U.S. 989 (1986). "Nevertheless, the 'good guy' approach is recognized as a permissible interrogation tactic." Id. (holding confession admissible despite interrogating officer's "supportive, encouraging manner ... aimed at winning [appellant's] trust and making him feel comfortable about confessing ."). See also Beckwith v. United States, 425 U.S. 341, 343 (1976) (interrogator had sympathetic attitude but confession voluntary); Frazier v. Cupp, 394 U.S. 731, 737-38 (1969) (confession voluntary when petitioner began confessing after the officer "sympathetically suggested that the victim had started a fight.")." Click here for the complete decision.
No basis for ineffective counsel for failing to call expert witness to testify on false confessions - two cases
In the case of, Commonwealth v. Tash, (Dec., 2008), the Appeals Court of Massachusetts found that there was no substantial risk of a miscarriage of justice by the defense failing to call as a witness a psychologist who would have testified as an expert that the defendant's confession was false. In analyzing the case the court found that:
"Dr. Mitchell Clionsky's affidavit, reflects that his conclusions regarding the falsity of the confession derive from research of G.L. Gudjonsson. He provides no information about the foundation for Gudjonsson's theories or other information from which it could be determined that the theories are reliable and generally accepted within the relevant scientific community. See Commonwealth v. Lanigan, 419 Mass. 15, 26 (1994); Commonwealth v. Soares, 51 Mass.App.Ct. 273, 280-281 (2001). Even assuming they meet these criteria, according to Dr. Clionsky, Gudjonsson's theory posits:
"[T]here are two main factors that continually emerge in what [Gudjonsson] calls the coerced-compliant type of confession: low intelligence and a factor of suggestibility, compliance, and acquiescence. Individuals who are high on both factors are likely easily to be led by interrogators and, in an attempt to appease the interviewers, to admit to criminal acts they did not commit."
However, based on his evaluation of the defendant, Dr. Clionsky concluded that the defendant is an intelligent man, as well as being an "exceedingly passive, acquiescent, compliant, and suggestible man who avoids anger and confrontation at almost any price."
Trial counsel would have had to consider that Dr. Clionsky's testimony was based on theories not established as reliable, and that in any case, he would have been vulnerable on cross-examination given that the defendant did not meet all of the Gudjonsson criteria supporting the falsity of the confession, both because Dr. Clionsky found the defendant to be intelligent and because other witnesses testified to having observed the defendant's anger and willingness to be confrontational. See Commonwealth v. Frank, 433 Mass. 185, 190-191 (2001). He also would have had to concede for the purpose of arguing that the confession was false, that it had been. This would have undermined his chosen tack, that he did not in fact make the inculpatory statements, but that he had only responded affirmatively to questions whether it would have been possible for him, despite his impotence, to partially insert his penis or to insert his tongue into a woman's vagina and that he signed the written statement without having read it. See Commonwealth v. Rosado, 434 Mass. 197, 200-201 (2001), cert. denied, 534 U.S. 963 (2001) (where counsel selected defense strategy that would have been weakened by impairment defense, it was not ineffective not to advance impairment defense). The defendant has not demonstrated "that counsel's tactical judgment was 'manifestly unreasonable.' " Click here for the complete decision.
In the case of, State v. Napier, (Oct., 2008) the Court of Appeals of Wisconsin found that the claim of ineffective counsel because an expert witness on false confessions was not called to testify was unfounded. The court stated that:
"Even if we assume that counsel's failure to call an expert constituted deficient performance, Napier is not entitled to relief because he is not able to show that he was prejudiced by the absence of the expert testimony. At the postconviction motion hearing, Dr. Larry White, an expert on coerced confessions, testified that he did not have an opinion as to whether Napier's interrogation was coercive. He also testified that he was not aware of Napier having any innate factors that made him vulnerable to police pressure, such as low intelligence or a mental disorder. While White testified that the fact that one of the officers may have yelled at Napier was potentially coercive, Napier testified during the suppression hearing that he had not felt threatened prior to making his confession, just confused. We thus conclude that failure to introduce the expert's testimony was not prejudicial because there is not a reasonable probability that, had it been introduced, the result of the proceeding would have been different. We reject this claim of ineffective assistance of counsel." Click here for the complete decision.
Juvenile confession found inadmissible - Miranda , length of interrogation and other problems
In the case of, Doody v. Dora B. Schriro; Megan Savage; Attorney General of the State of Arizona, Respondents- Appellees, (Nov., 2008), the United States Court of Appeals, Ninth District, found that "A juvenile was given Miranda warnings in a downplayed manner that ensured he would not take them seriously and would waive his rights. With only a flimsy version of the protection the Miranda warnings are designed to provide, he was then interrogated for more than twelve hours, overnight, almost entirely without pause and with no friendly adult present. He was told that he had to answer the officers' questions and that the interrogation would not end until he confessed. He was finally broken down by the ceaseless questioning of two, three, and four police officers, questioning that continued despite his frequent long stretches of silence. Under these circumstances, we conclude, he did not voluntarily confess." Click here for the complete decision.
What constitutes custody? Two cases
In the case of, People v. Colon, (Sept., 2008), the Supreme Court, Appellate Division, First Department, New York, ruled that the defendant was not in custody for Miranda purposes when he confessed. The court found that: "The People established that the statements defendant made prior to Miranda warnings were not the product of custodial interrogation, because a reasonable innocent person in defendant's position would not have thought he was in custody. Defendant voluntarily accompanied the police to the precinct, where he was expressly told he was not under arrest and was free to leave. Although he remained there over an extended period of time and was questioned with increasing intensity, he was never handcuffed or otherwise restrained, he was left alone and unguarded in an unlocked interview room for significant periods of time, and he was permitted to go to the bathroom unescorted. The fact that the police expressed skepticism about defendant's story did not render the questioning custodial. "Even a clear statement from an officer that the person under interrogation is a prime suspect is not, in itself, dispositive of the custody issue, for some suspects are free to come and go until the police decide to make an arrest". Furthermore, it was defendant who initiated the conversation with a detective, whom he knew from the neighborhood, in which he first admitted having had sex with the elderly victim on the day of the murder. The detective immediately stopped the conversation and, after Miranda warnings were administered, defendant waived his rights and gave a written statement implicating himself in the murder." Click here for the complete decision.
In the case of, People v. Dillion, (Dec., 2008) the Court of Appeal, Third District, California found that the defendant was not in custody for Miranda purpose at the time of his confession. The court stated that: "The single most important circumstance in this case is the fact defendant was told at least six times that he was free to leave and did not have to answer their questions. There is nothing in the record to undermine the clarity of what defendant was explicitly told. In other words, there were no subtle indicia of an arrest. He was not handcuffed. He was not locked in a room. He was not restrained. The officers did not ignore a request to leave. Rather, he was offered refreshments and given unsupervised breaks. Objectively, defendant remained free to terminate the interrogation and simply did not avail himself of the opportunity.
It is true that the interrogation became intense and uncomfortable. The interrogators suspected defendant was the perpetrator of multiple fires and truthfully told him so. And it took nearly two hours of skilled interrogation to convince defendant to tell the truth. But effective interrogation is not, by definition, custodial. " Click here for the complete decision.
Juvenile interrogation in school - was Miranda required? Does a deceptive offer to help render the confession inadmissible?
In the case of, State V. J.S., (Sept., 2008) the Court of Appeals of Washington, a 13 year old student was questioned by a police detective in the office of a school counselor at J.S.' school. "The counselor and a Child Protective Services (CPS) investigator were also present. Detective McCarthy was not in uniform, his jacket was zipped so that his firearm and handcuffs were not visible, and he had arranged the chairs in the room so that J.S. would be seated next to the door. Detective McCarthy did not give Miranda warnings before the interview, but the detective told J.S. that he was not under arrest, was not required to answer any questions, was free to leave at any time, could not get in trouble for refusing to talk or walking out, and would be allowed to return to his classroom after the interview." "We agree with the trial court that the interrogation of J.S. was not custodial."
The defendant also claimed that the trial court erred by admitting his statement because the interrogator was not truthful and mad false promises during the interview.
J.S. contends that his statement was involuntary because Detective McCarthy deceived and threatened him. According to J.S., Detective McCarthy falsely told him the purpose of the interview was to get him help and threatened J.S. by saying that he could not receive help unless he confessed. That description, however, does not fairly represent what happened.
The detective stated that his goal for the interview was to find the truth and to offer help. He did not threaten J.S. Rather, he assured J.S. that it was common for boys his age to be curious about those things, but that T.B.'s brother was certain he saw sexual contact, and for the adults present to be able to help J.S., they needed to know the truth. When J.S. continued to deny the allegations, the detective reiterated that if J.S. was not truthful, the detective could not help him: "But if your [sic] not willing to be honest about it, then you know it's, the help situation is over, right?"
Even if the detective's offer of help was deceptive, there is substantial evidence in the record to support the trial court's conclusion that J.S.'s statement was voluntary." Click here for the complete decision.
Dr. Richard Ofshe testimony limited
In the case of, Contreras v. State, (Jan., 2009) the Court of Appeals of Texas ruled on the following - Appellant's first two issues involve the expert testimony of Dr. Richard Ofshe. In Point of Error One, Appellant challenges the trial court's ruling that this expert witness could not relate the specific facts of the case to his expertise and knowledge. In Point of Error Two, Appellant contends the trial court erred when it ruled Dr. Ofshe could not testify about ultimate issues to be determined by the jury.
The trial court ruled that:
"He can testify as to the general basis of interrogation methods. Obviously, we know they exist. We know they existed in this case. We know it exists for the Police Department. You-all tendered over those documents. But, Mr. Ponder, I will tell you: He will not testify as to the veracity of any statement. He will not testify as to the voluntariness of any statement, and he will also not testify as to any truth or false confession."
The Court of Appeals found that "We conclude that Dr. Ofshe's testimony was not beyond that of the average juror's knowledge and experience and that his testimony would not help the jury understand the evidence or determine a fact issue. The jury was equally competent to form an opinion about the ultimate fact issues, namely the voluntariness of Appellant's second statement. Because Dr. Ofshe's testimony impermissibly offered a direct opinion as to the truthfulness of Appellant's statement, we find no error in its exclusion. We overrule the first two points of error." Click here for the complete opinion.
Does a suspect have to be told he is a suspect when he is advised of his Miranda rights?
In the case of, State v. Nyhammer, (Feb., 2009) the Supreme Court of New Jersey addressed the issue of whether federal and state law requires that, in addition to being advised of his Miranda rights, a person under police interrogation be informed that he is a suspect or that he be re-read his rights when the subject of the questioning may incriminate him.
"The trial court ruled that, based on the totality of the circumstances, defendant John Nyhammer knowingly, voluntarily, and intelligently waived his Miranda rights, even though the police did not give him advance notice that the questioning would touch on his own involvement in a sexual crime against his young niece. The Appellate Division reversed, finding that the police deprived defendant of essential information, his status as a suspect, necessary for the exercise of an informed waiver of his rights.
"We now hold that the trial court properly applied the totality-of-the-circumstances test in deciding whether defendant knowingly, voluntarily, and intelligently waived his Miranda rights-a test that we recently reaffirmed in State v. O'Neill, 193 N.J. 148, 936 A.2d 438 (2007), and State v. Dispoto, 189 N.J. 108, 913 A.2d 791 (2007). In applying that test, the trial court did not err in admitting defendant's confession. Here, defendant knew that he was a suspect as soon as the police asked him the first question about his involvement in the sexual abuse of the child-victim in this case. Moreover, one hour earlier, before defendant made his first incriminating statement, the police told him that he had a right to remain silent and that anything he said could be used against him in a court of law. Nevertheless, despite having been given his Miranda warnings, he knowingly and voluntarily chose to speak." Click here for the complete decision.