Legal Update Summer 2010 Part I

Court upholds confession in which investigators lied about the strength of their evidence during interrogation

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

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

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Court limits testimony of Professor Saul Kassin on false confession issues

In the case of State v. Cope, 2009, the Court of Appeals found that the trial court did not err when they excluded the testimony of the defendant's false confession expert about two cases of coerced internalized false confessions and "we find no error by the trial court in denying Cope's motion to suppress his confessions."

"In this case, Cope presented an expert, Dr. Saul Kassin, who testified regarding false confessions. Dr. Kassin testified as to the interrogation techniques used by the police in obtaining false confessions and the techniques used in this case: (1) false evidence-the officers telling Cope he failed the polygraph; (2) positive confrontation-the officers claiming they knew Cope did it; (3) the officers' refusals to accept Cope's denials of guilt even though he agreed to a polygraph and waived an attorney; (4) minimization-the officers suggesting the crime was accidental; and (5) interrogation while Cope was traumatized and tired.

Dr. Kassin proffered testimony about Peter Reilly, who falsely confessed to murdering and sexually assaulting his mother, and Gary Gauger, who falsely confessed to murdering his parents. In both of these cases, the defendants denied involvement, were administered polygraphs and told they failed, believed they must have somehow committed the crimes, and confessed. The trial court refused to allow Dr. Kassin to testify regarding specific cases of false confession unless they were "on all fours" with this case and ultimately refused to allow the testimony. "

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Court rejects expert testimony of E. Clay Jorgensen, Ph.D.
In the case of State v. Sam, 2009, the Court of Appeals Washington, upheld the trial court's decision not to allow E. Clay Jorgensen, Ph.D., an expert witness hired by the defense to evaluate the voluntariness of Mr. Sam's statements, to testify. The court found that "Mr. Jorgensen did not make a diagnosis, and "testimony about traits is ... disguised character evidence." The court stated, "I have a real problem with whether this is also inappropriate character evidence, disguised character evidence, rather than being something serious that the jury could consider from an expert." Id. The court further reasoned, "I do believe that an argument can be made, without an expert, that the jury would understand."
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How much corroboration is needed in a confession?
In the case of State v. Fairconatue, Jr., (2009) the Wisconsin Court of Appeals upheld the defendant's confession to an armed robbery. The defendant had appealed the conviction claiming that "his confession was not corroborated by a significant fact, thereby resulting in insufficient evidence to convict him of the armed robbery charge." In their opinion the Appeals court pointed out that in his brief Fairconatue comments "that there is "no co-defendant testimony, no hairs, no fibers, no D.N.A., no testimony by any of the victims that they believed any of the robbers to be black men." In other words, Fairconatue views the confession corroboration rule as requiring a specific link between Fairconatue and the crime. This is not a correct reading of the law."

The Appeals court points out that "Under the confession corroboration rule set forth in Holt:

All the elements of the crime do not have to be proved independent of an accused's confession; however, there must be some corroboration of the confession in order to support a conviction. Such corroboration is required in order to produce a confidence in the truth of the confession. The corroboration, however, can be far less than is necessary to establish the crime independent of the confession. If there is corroboration of any significant fact, that is sufficient under the Wisconsin test."

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How long is too long for an interrogation?

In the case of State v. Campbell, (2009) the Wisconsin Court of Appeals affirmed the trial court's decision to admit the defendant's confession. On appeal the defendant claimed (among other factors) that "the sheer length of the interrogation" produced a coerced confession. Campbell was interrogated for about 16 hours in three interrogation sessions over several days. In upholding the confession the Appeals court pointed out that "[T]he supreme court [has] declined to adopt a rule that custody and/or interrogation of a given length is inherently coercive." State v. Markwardt, 2007 WI App 242, P 45, 306 Wis.2d 420, 443, 742 N.W.2d 546, 558. In the instant case, Campbell was questioned for a significant period of time, but this factor alone does not demonstrate improper pressure or coercive tactics when the questioning was accompanied by breaks and appropriate opportunities to eat and sleep."

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Can a 12 year old make an intelligent and knowing waiver of their rights?

In the case of State v. F.G.H., (2009) the Court of Appeals Washington Division 3 upheld the conviction of a 12 year old, who on appeal claimed that "he did not knowingly, voluntarily, and intelligently waive his Miranda rights before confessing to police."

The Appeals court stated that "Here, F.G.H. told the officer he understood his rights and wanted to make a statement. Officer Masters testified he had no problem communicating with F.G.H. and he believed F.G.H. had no difficulty understanding him. While F.G.H. was only 12-years-old, nothing in the record shows that he lacked the intelligence or capability to understand the right to remain silent. F.G.H. argues 12-year-olds are too young, in general, to understand the full consequence of the exercise or waiver of their constitutional rights. But, "the test is whether a person knew he had the right to remain silent, and that anything he said could be used against him in a court of law, not whether he understood the precise legal effect of his admissions." Dutil v. State, 93 Wn.2d 84, 90, 606 P.2d 269 (1980). Moreover, "If a juvenile understands that he has a right, after he is told that he has that right, and that his statements can be used against him in a court, the constitutional requirement is met." Id. Under the totality of the circumstances, we conclude F.G.H. was capable of waiving his right to remain silent. Substantial evidence supports this finding and this finding supports the court's conclusion that F.G.H.'s confession was voluntary. There was no error in admitting the confession at F.G.H.'s bench trial."

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Can a "mildly mentally retarded" individual make a knowing and intelligent waiver of their rights?

In the case of State v. Griffin, (2009) the Court of Criminal Appeals of Tennessee affirmed the trail court's decision to admit the defendant's confession. The Appeals court found that "The totality of the circumstances support that while the defendant was mildly mentally retarded, he had the ability to understand his Miranda rights as they were presented to him on November 12th, December 12th, and December 14th. The record shows that the defendant had the ability for analytical thought and further that he had the mental ability to understand the significance of the evaluation and to try to manipulate its outcome. We conclude that the record supports the trial court's findings that on November 12, December 12th, and December 14th, the defendant knowingly, intelligently, and voluntarily waived his Miranda rights, that the police did not use coercive tactics in obtaining his statements, and that the statements were voluntarily given."

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Confession voluntariness - "If you don't tell the truth you will go to jail and lose your family"

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

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

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

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

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

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Court finds test on suggestibility was "not a valid and reliable test to determine a person's suggestibility to admit to a crime"

In the case of People v. Nelson, (2009) the Illinois Supreme Court upheld the trial court's decision to refuse to allow Dr. Bruce Frumkin to testify concerning his use of the Gudjonsson Suggestibility Scale (GSS) in evaluating defendant's susceptibility to giving a false confession. The trial court found "that the test was not a valid and reliable test to determine a person's suggestibility to admit to a crime. The court found it difficult to accept that a test taken nearly three years after the murders regarding a subject that was not autobiographical in nature could be presented as evidence. The court further stated that it was unaware of any court in Illinois that had allowed the GSS to be presented to a jury on the issue of the defendant's interrogative suggestibility. Thus, the court concluded that the GSS did not meet the standard for admissibility under Frye."

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Confession voluntariness - "We are here to help you, we are the only ones who can help you."

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

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

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

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Juvenile interrogation - the importance of discussing the Miranda warnings with the juvenile suspect

In the case of Etherly v. Schwartz, (2009) the United States District Court, N.D. Illinois, found that the appellate court erred in upholding the admissibility of the defendant's confession when considering the advisement of Miranda rights. The US District Court stated that "In this case, police officers and ASA Alesia advised Mr. Etherly of his Miranda rights in a formulaic fashion, then asked him to acknowledge that he understood those rights, but neither the detectives, nor the ASA, nor Youth Officer DiGrazia made any attempt to probe the boy's actual understanding of the rights recited or asked him to explain the meaning of the warnings in his own words.

Compare Hardaway, 302 F.3d at 761 (after being advised of Miranda rights, juvenile defendant "explained his rights back to [the ASA] in his own words, stating that he did not have to speak with [her] if he didn't want to, that anything he told [her] she could tell a judge in a trial against him, that he could have an attorney there when he was questioned about the case, even if he or his family couldn't pay for one.") Indeed, the evidence is that the Miranda warnings Mr. Etherly received exemplified the kind of rote "recitals which merely formalize constitutional requirements" that the Court disregarded in Haley because of the defendant's youth. Accordingly, the appellate court arguably transgressed Haley, based on Mr. Etherly's age alone, by according any weight at all to the fact that he formally received Miranda warnings. This transgression reached the level of unreasonable error, however, when factors beyond Mr. Etherly's youth are taken into account."

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Confession voluntariness - suggesting defendant would receive counseling and lenient treatment if he admitted to the sex offenses did not invalidate the confession

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

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

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

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Confession voluntariness - court rejects the concept of pragmatic implication

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

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

In addition the court addressed the issue of giving the suspect false information:

"Nor does the detectives' use of false information render defendant's admissions involuntary. Lies told by officers to a suspect during questioning may well affect the voluntariness of a confession, but they are not per se sufficient to render a confession involuntary. Where the deception by the officer is not of a type reasonably likely to procure an untrue statement, a finding of involuntariness is unwarranted. ( People v. Farnam (2002) 28 Cal.4th 107, 182 ( Farnam ).) Courts prohibit only those psychological ploys that, under the totality of circumstances, are so coercive they tend to produce a statement that is both involuntary and unreliable. ( Ray, supra, 13 Cal.4th at p. 340.)

In Farnam, supra, 28 Cal.4th 107, the court found the defendant's confession to an assault and robbery was voluntary. The officers falsely told the defendant that his fingerprints had been found on the victim's wallet. ( Id. at pp. 182-183.) Nor did the court find a confession coerced when an officer made false statements regarding evidence the officer said tied the defendant to a murder. ( People v. Thompson (1990) 50 Cal.3d 134, 167.)

Here, while the officers made several false representations while questioning defendant, those representations were not of a sort likely to produce an unreliable statement. Nor did the officers make any offers of leniency or threaten defendant with dire consequences for failing to confess. We do not find defendant's admissions involuntary.

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

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

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

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

Mr. Brown: Am I under arrest?

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

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

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

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

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

Mr. Brown: Nah, not no more.

Detective Hange: Why?

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

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

Mr. Brown: Do I?

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

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

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

Mr. Brown: Please.

Detective Hange: That's not a problem.

Mr. Brown: Thank you.

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

Mr. Brown: All right.

Detective Hange: All right?

Mr. Brown: Can I make my phone call?

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

The Court of Appeals found that "Here, when the detective explicitly asked whether Brown wished to continue talking, Brown answered, "Nah, not no more." Our courts have held equivalent statements to be a clear invocation of a suspect's Fifth Amendment rights. See, e.g., State v. Bravo, 158 Ariz. 364, 368, 373, 762 P.2d 1318, 1322, 1327 (1988) (after suspect said, "I don't wanna answer any more questions," continued police questioning represented "a clear violation of black letter Miranda law known to all qualified police officers"); Strayhand, 184 Ariz. at 585, 911 P.2d at 591 (defendant's statement, " 'Well, I don't want [to] answer any more,' could not have been clearer" invocation of right to remain silent) (alteration in original); see also People v. Hernandez, 840 N.E.2d 1254, 1259-60 (Ill.App.Ct.2005) (when given Miranda warnings and asked whether he wished to talk to prosecutor and detective, defendant clearly and unequivocally invoked right to remain silent by answering, "No, not no more."); State v. Rogers, 760 N.W.2d 35, 61 (Neb.2009) (" 'I'm not talking no more' " was one of several statements that invoked right to remain silent "in no uncertain terms"). The trial court therefore erred as a matter of law to the extent it found Brown did not invoke his right to remain silent."

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Juvenile confession found inadmissible

In the case of Doody v. Schriro, (2010) the United States Court of Appeals, Ninth Circuit found the defendant's confessions should have been found inadmissible. From the court's opinion:

"This case emerged from a horrendous crime-the murder of nine individuals, including six monks, inside a Buddhist temple. The ensuing investigation ensnared Petitioner Johnathan Doody, a seventeen-year old high school student. Although Doody eventually confessed to participating in the nine murders, he now challenges his confession, asserting that the Miranda advisements he was given were inadequate and that his confession was involuntary. We agree on both counts. Specifically, we conclude that the advisement provided to Doody, which consumed twelve pages of transcript and completely obfuscated the core precepts of Miranda, was inadequate. We also hold that nearly thirteen hours of relentless overnight questioning of a sleep-deprived teenager by a tag team of officers overbore the will of that teen, rendering his confession involuntary."

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