Legal Updates Spring 2014
Defendant is entitled to discovery of evidence relating to officer's alleged propensity to obtain confessions through coercive conduct
In State v. Jakes (December 2013) the Appellate Court of Illinois held that the defendant was entitled to discovery of evidence relating to the officers' alleged propensity to obtain confessions through coercive conduct. Here are excerpts from their opinion:
"A jury found Anthony Jakes guilty of murder, based largely on a confession Jakes signed after questioning by Detectives Michael Kill and Kenneth Boudreau. Jakes testified that he signed the statement because Kill beat him and threatened him while Boudreau watched. Kill and Boudreau denied that they beat or threatened Jakes. The jury and the trial court that assessed the credibility of Kill, Boudreau and Jakes never heard evidence that Kill and Boudreau beat and threatened suspects in other cases to obtain signed confessions, and... that they committed perjury to convince courts and juries to rely on the coerced confessions.
Because the matters in issue involve alleged beatings and threats by Kill, the court should permit discovery of evidence that affects the credibility of the testimony of Kill and Boudreau about the means by which they persuaded Jakes to sign the statement the assistant State's Attorney wrote. Evidence of other cases in which Kill and Boudreau coerced confessions directly relates to the issues here. Evidence that Kill and Boudreau lied under oath in other proceedings, especially when those proceedings involved statements signed following interrogations by Kill or Boudreau, also should affect the credibility of their testimony here..... The court must permit sufficient discovery to establish a pattern or practice of coerced confessions and perjury, if Kill or Boudreau engaged in such practices..... Kill himself, in a deposition, swore that he obtained confessions in 90% of the murder cases on which he worked, for a total of about 1,500 murder confessions in his career. He added that in 90% of those cases, defense attorneys filed motions to suppress "based on allegations of unnecessary use of physical force."
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Standard questions that solicit from the custodial suspect basic identifying information do not require an advisement of rights
In the case US v. Hitselberger (March 2014) the US District Court, District of Columbia, found that asking standard questions that ask a custodial subject basic identifying questions "are unlikely to elicit incriminating responses and are thus not coercive enough to establish an 'interrogation.' In their opinion they stated the following:
"Mr. Hitselberger seeks to suppress the statements made on April 11, 2012 during the 35 minute interview prior to reading and signing a Miranda waiver.... Defendant argues that Special Agent Kesici questioned Mr. Hitselberger directly during this time period, which thus constituted an "interrogation" for purposes of Miranda.... Because Mr. Hitselberger experienced custodial interrogation without any Miranda warnings, he seeks to suppress these statements as a violation of his Fifth Amendment right against self-incrimination.
The Court thus analyzes Mr. Hitselberger's reasonable perceptions during the direct questioning. The record does not reflect exactly what questions were asked, how those questions were framed, and how much information was volunteered by Mr. Hitselberger himself.... It is clear that Mr. Hitselberger was at least generally asked: 1) how he was doing, 2) basic identifying information, such as his name, age and address, 3) how long he had been on the base, 4) his educational background and, 5) the languages he spoke....I t is further clear that the conversation between the agents and Mr. Hitselberger was conversational, and that Mr. Hitselberger was overly forthcoming with information, especially regarding his relationship with his co-workers and his educational background.
The Court finds that there was no "interrogation" during the 35 minute pre- Miranda interview because: 1) the agents asked only standard questions which were unlikely to elicit incriminating responses, and 2) the agents had no additional knowledge that Mr. Hitselberger was unusually susceptible to their standard questions.
Given this record, and the generic nature of the questions asked, the Court does not believe that the Agents could reasonably have known that the questions would elicit incriminating responses. Because the questioning did not rise to the level of an "interrogation," the Court finds no Miranda violation and thus no justification to suppress these statements."
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Video identifies improper interrogation - confession suppressed
In People v. Hughes (December 2013) the Appellate Court of Illinois, First District, Third Division relied extensively on the video recorded interrogation to determine that the defendant's confession should be inadmissible. The court stated that, "We watched the video recording of Hughes' interrogation from start to finish. Our bird's-eye view of what occurred before the first confession and, more tellingly, between the time of the first confession and the second confession, raises intolerable doubts about the validity of the second confession. The methods the detectives used during the interrogation process contaminated this confession. The totality of the circumstances underlying Hughes' second confession establish that he lacked the ability to make a rational, unconstrained decision to confess. Accordingly, we reverse and remand for a new trial."
From the court's opinion:
"Hughes was 19 years old at the time of the interrogation. He attended school through the ninth grade, and received C's and D's. He used marijuana five to six times a day and drank several glasses of cognac twice a week. His arrests as a juvenile involved unlawful use of a weapon and criminal trespass to a vehicle.
Hughes' age, intelligence, education, experience, and physical condition at the time of the detention and interrogation address his character and capacity to resist police coercion. Courts recognize that youth, education, and experience increase susceptibility to police coercion. We agree that Hughes' youth (Hughes was 19 years old at the time of interrogation) and lack of education (Hughes only attended school to the ninth grade) heightened his vulnerability to the coercive tactics used on him.
As to the length of the interrogation, Hughes was picked up in Michigan around 2 p.m. and the interrogation ended around 6 a.m. the following day. Just over half of that time Hughes spent alone. Over the course of the interrogation, Hughes' clarity and cadence of speech, alertness, and concentration deteriorate. While in the afternoon he speaks freely, by the early morning hours before and during the polygraph examination Hughes mumbles several answers and appears exhausted.
Hughes also cites his regular drug use (smoking five or six joints a day, and drinking four or five glasses of cognac twice a week) to show involuntariness..... While nothing indicates that Hughes confessed as a result of any withdrawal effects ... he did smoke marijuana immediately before the polygraph exam.
Hughes next cites a number of untruths told by the detectives during the interrogation. In limited circumstances, interrogators may use subterfuge in attempting to elicit a confession. But where the State extracts a confession using deceptive interrogation tactics calculated to overcome the defendant's free will, suppression may be appropriate. ... Hughes cites numerous lies told by the detectives, which the State does not contest in its brief: (i) that his fingerprints were found at the scene; (ii) that numerous witnesses placed him at the scene; (iii) that the leg wounds, and not the head wound, killed Coleman; (iv) that he had failed the polygraph; and (v) that the court needed to know Hughes was sorry for what he had done.
The detectives' claims of having nonexistent evidence is a common police strategy, and while falsified evidence raises concerns as to voluntariness of a confession, usually, courts go along with these ruses. While the false-evidence ploys may be disturbing contextually and cumulatively, Hughes' "failed" polygraph and being told after the polygraph that the court needed to know Hughes was sorry for what he had done, weigh the heaviest against voluntariness due to their proximity and causal connection to the confession.
Moreover Detective Figueroa-Mitchell, the polygraph examiner, repeatedly represented to Hughes that she was "here to help" him, and that if he did not show remorse for shooting Coleman, his situation would only get worse. She also told Hughes that she was "fighting" for him, and that--if he showed remorse for shooting Coleman--she would testify in court on his behalf.
Looking at the totality of the circumstances, Detective Figueroa-Mitchell's trickery and its cumulative effect, along with Hughes' character and the circumstances of the interrogation, indicate that his confession to shooting Coleman was not voluntary."
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Video contradicts defendant's claim he was too intoxicated to waive his rights
In McNear v. State (March 2014) the Court of Appeals of Georgia rejected the defendant's claim that his statements to police were voluntary and admissible. McNear asserted that his statements were not voluntary because they were made over a six hour period of time while he was "exhausted and still inebriated" from an evening of heavy drinking. From the courts opinion:
"The record in this case shows that after conducting an evidentiary hearing and reviewing the three video-recorded interviews, the trial court issued a seven-page order in which it concluded that McNear "was advised of each of his Miranda rights, he understood them, he voluntarily waived then, and he thereafter gave his statements freely and voluntarily without any hope of benefit or fear of injury." With regard to McNear's intoxication, the trial court made the following finding:
While Defendant contends that he was intoxicated at the beginning of his interview with the officers, Defendant's intoxication did not prevent him from a making a rational, voluntary statement. Defendant was lucid, answered questions forthrightly, and recognized the nature of his detainment. Officers adequately explained to Defendant his rights several times throughout the interview, and Defendant clearly understood what the officers were telling him. Consequently, considering the totality of the circumstances, Defendant's statements were voluntary in spite of his possible intoxication.
Based upon our review of the waiver form signed by McNear and the video-recordings of his interviews with the police officers, "we find that the trial court was authorized to conclude that, despite [McNear]'s possible intoxication [and lack of sleep], he gave a voluntary statement and made a knowing and intelligent waiver of his Miranda rights."
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Court confirms that The Reid Technique consists of proper interrogation procedures
In US v. Jacques (March 2014) the US Court of Appeals, First Circuit, upheld the lower court's opinion that a confession obtained by interrogators using elements of the Reid technique was voluntary and admissible. (We reported on the lower court's opinion in the Legal Updates Fall 2011.) In this opinion the US Court of Appeals stated the following:
"Finally, Jacques claims that Mazza and Smythe overbore his will through their use of the "Reid technique," including exaggerating their evidence and minimizing the gravity of his suspected offense, in obtaining a confession.
Extreme forms of deception or chicanery by the police may be sufficient to render a confession involuntary.... Nevertheless, "the use of chicanery does not automatically undermine the voluntariness of a confession." Id. This court has consistently recognized that "some degree of deception ... during the questioning of a suspect is permissible."
Specifically, "a confession is not considered coerced merely because the police misrepresented to a suspect the strength of the evidence against him." .... As the Seventh Circuit has noted, "[o]f the numerous varieties of police trickery, ... a lie that relates to a suspect's connection to the crime is the least likely to render a confession involuntary."
In this case, the agents' statements exaggerating the quality of their evidence, minimizing the gravity of Jacques's offense, and emphasizing the negative media attention that would attend Jacques's trial all fall safely within the realm of the permissible "chicanery" sanctioned by this and other courts. Jacques points to no federal authority supporting a finding of an involuntary confession under similar circumstances.... Considered in the full circumstances of this case, Mazza and Smythe's interrogative tactics did not amount to coercion in violation of Jacques's Fifth Amendment rights."
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The criteria to be considered in determining custody for a juvenile suspect
In US v. IMM, Juvenile Male (March 2014) the US Court of Appeals reversed the district court's decision, concluding that the district court erred when it admitted into evidence an inculpatory statement obtained from IMM in violation of his Fifth Amendment rights. The district court ruled that IMM was not in custody so that Miranda advisements were not required. The Court of Appeals disagreed and stated in their opinion the following:
"IMM argues that the district court erred in refusing to suppress his inculpatory statement under Miranda. Miranda is violated when a suspect is placed in custody and is then interrogated without receiving Miranda warnings or without knowingly, intelligently, and voluntarily waiving the rights described in those warnings.
In United States v. Kim, we identified a non-exhaustive list of five factors that have often proven relevant in deciding whether a suspect was in custody: "(1) the language used to summon the individual; (2) the extent to which the defendant is confronted with evidence of guilt; (3) the physical surroundings of the interrogation; (4) the duration of the detention; and (5) the degree of pressure applied to detain the individual." ... As we recognized in Kim, "[o]ther factors may also be pertinent to, and even dispositive of, the ultimate determination whether a reasonable person would have believed he could freely walk away from the interrogators." Id.
Although this inquiry is objective, the Supreme Court held in J .D.B. that "so long as the child's age was known to the officer at the time of police questioning, or would have been objectively apparent to any reasonable officer, its inclusion in the custody analysis is consistent with the objective nature of that test." ... The Court cautioned that "a child's age [may] affect[ ] how a reasonable person in the suspect's position would perceive his or her freedom to leave," and warned that "a reasonable child subjected to police questioning will sometimes feel pressured to submit when a reasonable adult would feel free to go." ... Thus, J.D.B. recognized that for Miranda, as for so many other rights, common sense dictates that we must take into account the unique characteristics and vulnerabilities of children.
Here, the district court concluded that IMM was not in custody. We review the "in custody" determination de novo
IMM does not challenge the district court's factual findings and, having carefully reviewed the record, we conclude that those findings are not clearly erroneous. However, applying the legal standard set forth above to the "determination" regarding IMM's custodial status, we conclude that IMM was "in custody" for Miranda purposes. A reasonable person, and especially a reasonable twelve-year old child, in IMM's position would not, under all of the circumstances, have felt that he was free to terminate the interrogation and leave.
The first Kim factor, "the language used to summon the individual," slightly favors a finding that IMM was in custody. In general, when a suspect voluntarily agrees to accompany police with an " understanding that questioning would ensue," this factor weighs against a finding of custody.... although IMM's mother agreed to a voluntary meeting with the detective, there is no evidence that IMM himself ever agreed to an interview, understood it to be voluntary, or understood his mother's role in making the necessary arrangements. Because the ultimate issue is whether IMM himself understood that he was free to leave, we cannot impute his mother's subjective awareness of the circumstances of the interview to IMM. The evidence shows only that, from IMM's vantage point, an armed detective arrived at his house one Saturday morning, drove him and his mother 30 to 40 minutes to a police station, and brought him to a small room where he remained for nearly an hour of questioning. Although the officer did not menace IMM or order him into the car, it is doubtful that a juvenile in IMM's position would have seen the circumstances of his arrival at the police station as the result of a free and voluntary choice to be questioned.
The second Kim factor, "the extent to which the defendant is confronted with evidence of guilt," overwhelmingly favors a finding of custody. "We have found a defendant in custody when the interrogator adopts an aggressive, coercive, and deceptive tone." ... Here, although the detective did not raise his voice, he repeatedly confronted IMM with fabricated evidence of guilt and engaged in elaborate deceptions. The detective fed IMM facts that fit the detective's predetermined account of what must have happened, accused IMM of dishonesty whenever IMM disagreed with the detective's false representations, and forced IMM to choose between adopting the detective's false account of events as his own and calling his own grandfather a liar. This last tactic directly played upon IMM's close relationship with his grandfather, whom he called "dad," and employed intense psychological coercion of a sort to which juveniles are uniquely vulnerable.... Further, although the detective did not explicitly threaten IMM, he bluntly warned that the situation would "turn into a big thing if you're not going to be honest." Thus, while the detective told IMM at the outset of the interview that IMM could stop it if he felt uncomfortable, the detective's aggressive, coercive, and deceptive interrogation tactics created an atmosphere in which no reasonable twelve year old would have felt free to tell the detective, an adult making full use of his position of authority, to stop questioning him.
The third Kim factor, "the physical surroundings of the interrogation," also weighs strongly in IMM's favor. While "[t]he fact that questioning takes place in a police station does not necessarily mean that such questioning constitutes custodial interrogation,"... it often does. That is especially true for juveniles, who are more likely to be overwhelmed by entry into a police station staffed by armed, uniformed officers.... Here, IMM was placed in a small room with the door closed. Although the door was unlocked, there is no evidence that IMM was aware of this fact. To the contrary, the detective twice exercised control over IMM's practical ability to enter and exit the room--first by ordering IMM to knock on the door if he needed to use the restroom and later by directing IMM to sit alone in the small room until the detective returned.
In short, with respect to the third Kim factor, IMM was interrogated alone behind a closed door that appeared to be locked, in a small room in a police station located 30 to 40 minutes away from his home. He was told that, if he wanted to leave to use the restroom, he needed to knock and obtain the detective's permission. Faced with this situation and level of police control, a reasonable person would not likely have felt free to terminate the interrogation and leave the police station at will.
The next Kim factor, "duration of detention," strengthens the conclusion that IMM was in custody. IMM spent 30 to 40 minutes in the unmarked police car and then nearly an hour being questioned. Although our precedents do not specify a precise amount of time at which a detention turns custodial, we have found an adult defendant to have been in custody when she was interrogated for 45 to 90 minutes.... Under all the circumstances, including the fact that IMM, as a juvenile, was likely more overwhelmed and intimidated than an adult would be by such prolonged direct questioning by an adult police officer, this Kim factor supports a finding of custody.
The fifth and final Kim factor, "the degree of pressure applied to detain the individual," confirms that IMM was in custody. As in Kim, "this was a full-fledged interrogation, not a brief inquiry," in which IMM was "detained for 'some time' " and then questioned for "at least [50 total] minutes."... This questioning was both hostile and accusatory, and, when conducted in isolation in a small room in a police station, quite capable of causing IMM considerable concern regarding his future. Although IMM was neither handcuffed nor arrested, "the scenario was not without pressure resulting from a combination of the surroundings and circumstances encompassed by the other factors."
Ultimately, guided by the Kim factors, considering the totality of the circumstances of IMM's detention, and taking into account IMM's status as a juvenile, we conclude that a reasonable person in IMM's position would not have felt free to terminate the questioning and leave the police station. We therefore conclude that IMM was "in custody" during his interrogation by the detective. Here, IMM was never read his Miranda rights and the district court agreed with that description of what happened. Certainly it is clear that the detective did not explain the meaning or consequences of the Miranda rights to IMM. Accordingly, IMM's inculpatory statements during his interrogation by the detective must be suppressed."
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Testimony of Dr. Deborah Davis on false confessions excluded by the court
In People v. Durst (March 2014) the Court of Appeal, Third District, California upheld the lower court's decision to exclude the testimony of Dr. Deborah Davis on the issue of false confessions. From their opinion the Appeals Court stated:
"The court held a hearing on whether to admit the expert testimony concerning false confessions, which included a 250-slide PowerPoint presentation prepared by the expert. The court informed defense counsel that the expert would not be allowed to use the 250-slide presentation under Evidence Code section 352 because it was in the form of a lecture, not testimony of an expert.
The trial court recognized Dr. Deborah Davis as an expert in the field of false confessions. Dr. Davis testified at the Evidence Code section 402 hearing that (1) suspects sometimes falsely confess what they have not done and (2) many people mistakenly believe that no suspect falsely confesses. Circumstances such as interrogation techniques (presenting false or misleading evidence or using polygraph tests, for instance), as well as the length of the interrogation, sleep deprivation, high stress, and distrust of one's own memory may result in a false confession.
In summary, the court found that the evidence was minimally probative in this case because it did not go beyond the common experience of the jurors. The court noted various parts of the testimony that would be too general to be helpful or would be confusing. In fact, the jurors had been asked during voir dire concerning their acceptance of the phenomenon of false confessions and had indicated their acceptance. The minimal probative value was substantially outweighed by the danger that the evidence would confuse or mislead the jury and consume an undue amount of time.
The California Supreme Court, in Linton, recently considered a claim that exclusion of expert testimony about false confessions was an abuse of discretion and violated the defendant's right to present a defense. The Linton court rejected the claim, concluding that where there was a "dearth of evidence indicating a false admission or confession," as well as a "multitude of corroborative evidence ... that suggested defendant's admissions and confession were true." ... Under these circumstances, "it fell within the trial court's broad discretion to determine that [the expert's] proffered testimony had, at most, minimal probative value, which was substantially outweighed by its likely undue consumption of time. [Citations.]" ( Ibid.)
Likewise, here, there was a dearth of evidence indicating that defendant's confession was false. The details of his confession matched the facts of the crime produced at trial. Defendant admitted that he entered the house, lit the candle, and opened the gas valve. The candle was from defendant's house, and defendant was present at the scene during the time when the acts occurred. Defendant readily admitted that he did not like Liu, and he had already stolen items from the house.
This is not a close case in which evidence concerning whether police interrogation tactics could produce a false confession would have been helpful to the jury. Therefore, the trial court did not abuse its discretion in excluding the expert testimony, and the exclusion of the testimony did not violate defendant's right to present a defense."
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Testimony of Dr. Allison Redlich on false confessions excluded by the court
Commonwealth v. Hoose (March 2014) the Supreme Judicial Court of Massachusetts upheld the lower court's decision to exclude the testimony of Dr. Allison Redlich on the issue of false confessions, stating that "it was not an abuse of discretion to exclude the expert testimony where the judge could have concluded also that the testimony's probative value was outweighed by its potential to confuse or distract the jury." From their opinion the Supreme Court stated the following:
"...the defense proffered that Dr. Redlich's testimony would be limited to the fact that false confessions do occur, that they are an area of scientific study, and that there are certain factors related to interrogation methods and the internal disposition of individual suspects that have been identified as commonly occurring among false confessions. The defendant argued that such testimony would be helpful to the jury in assessing the reliability of the defendant's statements to police.
... After hearing argument on the Commonwealth's motion, the judge decided to take testimony from the expert witness in voir dire to determine whether such testimony should be admitted for the jury's consideration... The judge limited the subject of the voir dire to the witness's proffered opinion regarding the concept of false confessions as an area of scientific research, the factors that may contribute to such confessions, and any connection this information would have to the defendant's case and the jury's assessment of the evidence.
Dr. Redlich explained that as a result of this research, a taxonomy of false confession "types" has been identified... and certain factors have been linked to proven false confessions.... Based on her review of the defendant's recorded statements, Dr. Redlich also opined on those false confession factors that were present in the defendant's case... Additionally, Dr. Redlich acknowledged that no studies have been conducted comparing the prevalence of these factors among false confessions to either "true" confessions or all confessions. Furthermore, Dr. Redlich testified that the studies based on proven false confessions that have been used to identify these relevant factors were based on a sample size of approximately 150 to 200 proven false confessions.
At the conclusion of the Lanigan hearing, the judge ruled that the expert testimony could not be admitted in evidence because the principles and methods on which Dr. Redlich's opinions were based had not been shown to be sufficiently reliable to go before the jury. The judge emphasized that the research studies that identified the factors linked to false confessions were based on a limited sample size of proven false confessions and that no research or information would come before the jury regarding how frequently such factors also may be present in true confessions.
Thus, in light of the limited number of false confession factors present in this case, combined with the lack of evidence before the jury calling into question the veracity of the defendant's statements, the judge may have concluded that the proffered expert testimony was not relevant and would have distracted or confused the jury by giving rise to speculation based on facts and assumptions not in evidence.... Therefore, it was not an abuse of discretion to exclude the expert testimony where the judge could have concluded also that the testimony's probative value was outweighed by its potential to confuse or distract the jury.
We do acknowledge, however, that the phenomenon of false confessions is a growing area of psychological and social science research, and we are mindful that false confessions have been demonstrated to occur even in the context of serious crimes, including murder.... Therefore, we do not foreclose the possibility that under appropriate circumstances this sort of expert testimony could be relevant to a defendant's case and helpful to a jury..... Although the precise number of false confessions or prevalence data regarding false confession factors may never be identified, as research regarding factors present in proven false confessions continues to progress, information regarding these factors may be helpful in certain circumstances. For example, should a case arise in which a defendant attacks directly the veracity of his or her statements to police and where several of the false confession factors thus far identified are present, it may be appropriate for expert testimony of the sort proffered here to be taken into consideration.... Therefore, we leave further development of this issue for another day."
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Undercover agents do not have to advise a suspect of their Miranda rights
In US v. Pazder (April 2014) the US District Court, E.D. Tennessee found that undercover OIG agents posing as USPS quality assurance contractors did not have to advise the defendant of her rights when they spoke to her, even though she was suspected of defrauding the USPS. From their opinion the court stated the following:
"On December 7, 2010, the Defendant participated in an interview conducted at the Marriott hotel in Knoxville, Tennessee, by undercover OIG agents posing as USPS quality assurance contractors. The Defendant allegedly gave false statements about the extent of her physical limitations during this interview. The Defendant contends that the information she gave at the December 7, 2010 interview must be suppressed because she gave the information involuntarily and pursuant to coercion and duress. She states that although the true purpose of the interview was to obtain incriminating information, she was not aware that she was speaking to federal agents, she was not advised of her rights under Miranda or Garrity, and she did not waive those rights.
First, the Court readily finds that the interviewing agents did not have to advise the Defendant of her rights pursuant to Miranda during the December 7, 2010 interview. The Supreme Court has definitively held that "Miranda warnings are not required when the suspect is unaware that he is speaking to a law enforcement officer and gives a voluntary statement." Illinois v. Perkins, 496 U.S. 292, 294, 110 S.Ct. 2394, 110 L.Ed.2d 243 (1990). The policy behind providing the Miranda warnings is the belief that "without proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely." Miranda, 384 U.S. at 467. On the other hand, when an individual voluntarily speaks with someone, whom they believe is not a law enforcement agent, then those "inherently compelling pressures" stemming from custodial interrogation are not present, even if the interviewer is actually an undercover agent. Perkins, 496 U.S. at 296; see also Hoffa v. United States, 385 U.S. 293, 304, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966) (declining to entertain a Fifth Amendment challenge to the defendant's statements about bribing jurors made to an undercover government informant whom the defendant had invited into his hotel room). "There is no empirical basis for the assumption that a suspect speaking to those whom he assumes are not officers will feel compelled to speak by the fear of reprisal for remaining silent or in the hope of more lenient treatment should he confess." Perkins, 496 U.S. at 296-97. "Ploys to mislead a suspect or lull him into a false sense of security that do not rise to the level of compulsion or coercion to speak are not within Miranda' s concerns." Id.
In the instant case, Defendant Pazder did not know that the persons interviewing her during the December 7, 2010 meeting were OIG agents, nor that they suspected her of fraud. In other words, the Defendant had no reason to believe that the undercover agents "had any legal authority to force [her] to answer questions or that [they] could affect [her] future treatment" with regard to criminal prosecution. Id. The Court finds that the Miranda warnings were not required for the December 7, 2010 interview. Similarly, the Garrity warnings were not required because the Defendant had no reason to believe that her job was in jeopardy if she refused to talk to the quality assurance contractors.
In the instant case, the ruse--that the agents were USPS quality assurance contractors--did not involve any threats or promises to the Defendant or others. Moreover, the Defendant was familiar with the subject of Worker's Compensation benefits, having sought them for prior injuries, and she was not alone during the meeting. Instead, her husband attended the interview with her, commented on the discussion, and assisted her in completing a form. The mere fact that the agents were undercover was not coercive.
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The value of recording an interrogation to demonstrate voluntariness
In Hansen v. Johnson (April 2014) the US District Court, S.D. California found that reviewing the electronic recording of the defendant's interrogation and confession to be critical in evaluating the voluntariness of the statement. From their opinion:
"Applying these Supreme Court principles, the Court of Appeal first noted that Petitioner was not subject to any "overt physical brutality."... However, in recognition that police coercion can be mental, the Court of Appeal analyzed "whether psychological coercion, by means of an implied promise of leniency, occurred." ... The Court of Appeal next examined the two statements made by Detective Smith to Petitioner while driving to the police station following her arrest. With respect to the first statement ( i.e., "the next hour ... would be the most important hour of [her] life"), the Court of Appeal concluded that the "statement is neither an express nor implied promise of leniency. Rather, it appears [Detective] Smith was emphasizing the seriousness of the situation. Although one could interpret the statement as implying that now was the time to start being truthful, such an implication does not constitute psychological coercion."
The Court of Appeal found the second statement ( i.e., "Hansen's behavior would affect how she spen[t] the rest of her life") to be "more problematic."... The Court of Appeal reasoned that the second statement arguably implied that Hansen might or might now spend the rest of her life in prison, depending on how she conducted herself during the interview. Smith's postconfession attempts to clarify that he did not intend this implication do not cure the problem, since Hansen had already confessed; an after-the-fact explanation cannot remedy an improper inducement.
The Court of Appeal then looked at the totality of the circumstances to determine whether "the implied promise that if Hansen were to confess, she would not spend the rest of her life in prison, motivated her to confess-that is, whether such inducement was sufficient 'to overbear [her] will to resist and bring about [a] confession[ ] not freely selfdetermined.' ... The Court of Appeal ultimately concluded Detective Smith's second statement did not coerce an involuntary confession. In reaching this conclusion, the Court of Appeal stated:
The interrogation was recorded on a DVD player. Throughout the interview, Hansen who was one month shy of her 18th birthday, displayed a calm and rational demeanor. She showed emotion only during breaks and at the end of the interview. Hansen's responses and her level of engagement in the interview indicate that she understood what was being discussed and that she was aware of her predicament. She also told the detectives that she was familiar with her Miranda rights. The interview lasted about 80 minutes and thus was not excessive in length. The detectives removed Hansen's handcuffs for the interview. Throughout the interview, the detectives' tone and demeanor were civil and professional. The detectives did not use deceptive practices during the interview. In fact, Hansen remarked during the interview that the detectives were "both very nice," and said, "I think you guys are the most straightforward people I've seen."
The DVD recording of the interview supports the trial court's finding that Hansen did not confess because of coercion applied by the police, but rather, that she confessed freely and voluntarily. After independent review of the interrogation DVD, we agree."
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Value of recording to demonstrate the totality of circumstances and voluntary nature of incriminating statements
In Hernandez v. State (January 2014) the Court of Appeals of Texas, Amarillo relied on the recording and transcript of the questioning of the defendant to determine the totality of circumstances as they applied to her contention that the trial court erred by denying the motion to suppress the March 9 statement because: (1) the statement was rendered involuntary by detective Smith's repeated references during questioning to appellant's separation from her children, which violated her due process rights; (2) the statement was rendered involuntary by the detective's promises of leniency for cooperation and threats for lack of cooperation in violation of due process; and, (3) the statement was prompted by a promise of benefit in violation of article 38.21 of the Code of Criminal Procedure.
From the Court of Appeals opinion:
"Appellant's contentions supporting her argument for exclusion of her March 9 statement arise from statements made by Detective Smith.... Early in his questioning, Smith confronted appellant with autopsy results showing Espinosa did not die from alcohol or drugs. Smith pressed appellant to "get past" the "I'm going to cover for [Kenneth], he's going to cover for [me]" posture, and made vague references to other evidence recently discovered that "brought us back to you." Smith also invoked other interrogation techniques. Appellant contends that two of them had such effect as to render her subsequent admissions involuntary. By her first issue, she points to Smith's statements emphasizing the separation from her children that would result from her failure to cooperate. By her second, she argues Smith promised she would gain leniency by cooperation and threatened that failure to cooperate would precipitate a report to the judge and district attorney and punishment. In these ways, appellant contends, Smith coerced her incriminating statements.
... Before considering the effect of Smith's statements, we emphasize again that our analysis must consider the totality of the circumstances under which appellant's statements were given. Under that analysis, the assertedly coercive police activity is not considered alone, but as a factor in the determination of voluntariness.
Interrogation Relating to Appellant's Children
In support of her argument that Detective Smith used improper references during interrogation to separation from her children, appellant points to the detective's following statements.
That's why we've got to make this right. I know that you know that. You've got kids of your own.
I know that you are a good mom. I know that you are trying everything you can to take care of your kids, to take care of yourself so that you can take care of your kids. But right now your kids are who you need to be thinking about, because if you're not thinking about your kids, and you continue to not tell the truth, you're never going to see those kids again. Do you understand that? Going to prison for the rest of your life is not watching your kids grow up, it's not putting your kids through school, it's not giving you're (sic) their ... (sic) their first girlfriend and boyfriend, and their first wife and husband, and their first kids, and being a grandma.
You do what you do as far as taking care of it, and then you go back to your kids, and you get to spend some of your life with your kids. Because without telling the truth, you are never going to see your children again. I don't have any kids, and I can't imagine when I do the thought of something keeping me away from my kids for the rest of my life. And if I make a mistake, and I've got to fess up to it, and I'm not around my kids for whatever amount of time, at least I'll know I'm coming back to them at some point.
But right now, the track that you're on, you're on the track that's getting further and further and further away from those kids.
And the path you're on right now is the worst path it is, because it's you going to prison for the rest of your life, and you get to see your kids through the little glass wall. I guess I would say you won't get to see them, because you will get to see them through a little glass wall and talk to them on a telephone. You'll never get to touch them. You'll never get to tuck them in at night. You'll never get to feed them breakfast again....
.... Considered as a whole and in the context of the entirety of the interrogation, we find Smith's statements emphasizing to appellant that she faced separation from her children were not threats of governmental action to punish a failure to cooperate but were accurate representations of her predicament. Moreover, considering the entirety of the circumstances facing her, we could not say these particular statements overcame her free will and caused her to further implicate herself in the murder.
Inducement to Confess by Promises and Threats
Appellant next contends Detective Smith promised she would gain leniency by cooperation and threatened that failing to cooperate would precipitate a report to the judge and district attorney and punishment. She directs us to the following statements by Detective Smith.
[W]e're hoping in turn you're going to turn around and you're going to tell us the truth about everything that happened so that we can get everything figured out because Christy being dead, something has to happen about that, okay? And either we go the long way about finding it, finding out that happens, and we then go to the judge and we say, okay, here's the final product. Here's what we learned. And we either got cooperation along the way. Or we go and we say, okay, it took a little while, but we put this case together, and... we finally got some cooperation, and we think that we've got all of the truth and the people involved were cooperative in this, and realize it was a mistake. Some things got screwed up and now I'm needing to talk about it because it's the right thing to do.
I have to present something to the judge and I have to present something to the DA's office and right now, right now the DA's office has already told us, "Murder. Put them in jail and just be done. You have her ID at the scene. You have them together. Just be done. Be done with your paperwork." But what's happened is we have decided that we need to try to talk and give you an opportunity to try and make this right. And the way to make it right is to say, "okay, this is exactly what happened and I need to be cooperative so that hopefully I can get a little bit of leniency through this whole thing," alright?
[W]e're trying to give you the opportunity to show that you have some type of compassion and that it's eating you up inside to not tell us the truth and that you need to tell the truth so that you can show that you have some type of feeling left in you.
[T]hat's the kind of stuff that I have to hear from you so that I can say, "Judge, she did the right thing." Martha, I need you to dig yourself out of here.
Appellant argues the coercive aspect of Detective Smith's comments derives from the threat that cooperation is rewarded while failure to cooperate is punished.
But, again, resolution of the voluntariness question does not turn on the mere existence of some promise or threat, but on the totality of the circumstances of the interrogation....
Here appellant gave two lengthy statements before the one she now challenges. Before each statement, she received the Miranda warnings and expressed her understanding. As noted, aspects of the Miranda warnings were reiterated at least once during the March 9 interrogation. At no time during the March 9 interrogation did appellant request an attorney or termination of the interview. She neither complained of the circumstances of her questioning nor asserted a request that was denied. Detective Smith did not offer a quid pro quo of leniency for a confession nor did he expressly threaten added or heightened punishment for failure to confess. Appellant had prior arrests, and was familiar with police procedure. Nothing indicates she was of any level less than average intelligence. By the time she gave her March 9 statement, over twenty-four hours had elapsed since appellant had given her unchallenged second statement, in which she acknowledged her presence in the car during all the events leading to Espinosa's death and told of her role in the burning of the body. Neither appellant's characteristics nor the details of her interrogation on March 9 suggest that her will was overborne and her capacity for self-determination critically impaired by Smith's vague references to presenting "something to the judge."
Article 38.21 Violation
By her third issue, appellant contends Detective Smith improperly induced her to make a statement by promising to report to the judge if she "did the right thing." The questioned statements are apparently the following:
"And the way to make it right is to say, 'Okay, this is exactly what happened, and I need to be cooperative so that hopefully I can get a little bit of leniency through this whole thing,' all right."
* * *
"[T]hat's the kind of stuff that I have to hear from you so that I can say, 'Judge, she did the right thing.' Martha, I need you to dig yourself out of here."
Under Texas statutory law, the statement of an accused may be used against her "if it appears that the same was freely and voluntarily made without compulsion or persuasion."... Voluntariness of a statement under article 38.21 is determined by examining the totality of the circumstances.
We see no error in the trial court's refusal to suppress appellant's March 9 statement. It is unnecessary for us to restate why under the totality-of-circumstances analysis appellant's statement was not involuntary. Moreover, Detective Smith offered appellant no positive promise of leniency or beneficial outcome. Appellant's requested cooperation carried the hope of "get[ing] a little bit of leniency through this whole thing." And nothing here demonstrates any actual or apparent authority in Detective Smith to negotiate a lesser charge or reduced sentence for appellant (emphasis added).We think it unreasonable to believe a person would speak untruthfully, confessing to acts she did not commit, on the strength of the vague statements challenged under this issue.
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Investigator should not be allowed to testify about the defendant's credibility
In US v. Hill (April 2014) the US Court of Appeals, Tenth Circuit, ruled that, "Admission of expert opinion testimony as to defendant's credibility was plain error warranting reversal of defendant's convictions for bank robbery and related crimes, even though defendant did not testify, where expert's testimony did not involve specialized psychiatric knowledge, but merely asserted opinion as to veracity of explanation that jury was capable of resolving without expert testimony, government's case against defendant was not strong, and there was reasonable probability that but for expert's improper testimony, result of defendant's trial would have been different."
From the court's opinion:
"Stanley Hill appeals following his conviction on several charges related to the robbery of a bank. During trial, Charles Jones, a special agent with the Federal Bureau of Investigation ("FBI"), testified as an expert. Agent Jones stated that he was trained in "special tactics and ways to identify [ ] deception in statements and truths in statements" and that in his opinion, many of Stanley's ... answers were not worthy of credence and "[did] not make sense." Jones claimed that Stanley displayed evasive behaviors "common among the criminal element to keep law enforcement at bay" during an interrogation. When asked about Stanley's statement that he would rather die than face charges, Jones testified, "Never in my career have I seen that with an innocent person." And when the prosecutor asked about Stanley's repeated invocations of God in support of his truthfulness, Jones stated, "My training has shown me, and more[ ]so my experience in all these interviews, when people start bringing faith into validating [ ] their statements, that they're deceptive. Those are deceptive statements."
Jones also testified about the interrogation of Stanley. He stated that he had attended "two specialized courses in interrogation and interviews, including the Reid school, which is a higher-level school of interrogation and interviewing." He explained:
[T]he Reid school is designed to--as an interview process and interrogation process; part of that is psychological as well. It's much like your five-year-old children and how you can break down a story or you understand what's going on during the process of that interview.
In the Reid school, you're trained on some special tactics and ways to identify on deception in statements and truths in statements. That school is a sought-after school for investigators and interviewers because of the caliber of that training you do get towards that endeavor.
Jones further stated that he had conducted over a thousand interviews as an FBI agent.
The prosecution asked, "in reference to [his] earlier testimony regarding [his] training and experience in interrogating and interviewing," what Jones "based on [his] training and experience" took from the interrogation "as to [Stanley's] truthfulness." Jones responded:
[T]he most difficult thing to tell the difference in is partial truths, ... something that's partly true, that's a lot harder to detect than a flat-out lie or a convicting [sic] truth.
So during the course of that interview, we were able to, as trained eyes, pick out that this isn't--these are partial truths, at best. And several of those are--they're shown through things that are not purposely said or done by the interviewee. They are responses that occur naturally, that's a psychological thing that happens, that we don't control.
For example, in this case, and I've seen it in other interviews, a mumbling of something that they don't want to talk about. You may say, I was at the grocery store at three or whatever or whatever, and you will go away from the question and just discount that as something you don't need to know, Mr. Police Officer. And there was much of that going on throughout the interview, for whatever, or whatever, and whatever with Mr. Stanley Hill's interview, occurred on a continuous basis, just avoiding--it's a way to avoid the question without just flat out saying, I'm not going to talk to you.
The prosecutor then asked, "In reference to the substance of the responses that were provided ... how does that factor into your observations of whether he's being truthful or not?" She provided Stanley's claim that he planned to babysit his step-sister at the East Pine home as an example of "the substance of responses." Jones answered that Stanley's version of events "does not connect [the] dots," "does not make sense," and was "not something that [he] viewed as reasonable." Specifically, Jones doubted that if Stanley was going to be "responsible for a child," he would immediately fall asleep "and never w[a]ke up while somehow bank robbery money got stuffed in the oven drawer of your house, and then the bank robbers ran away before the police could get there, and you didn't hear anything, but you were waiting on somebody to arrive in this unlocked house in north Tulsa."
Jones then identified several factors that contributed to his opinion that Stanley was being untruthful during the interview. He noted that after Stanley was told that police found items connected to the bank robbery in the East Pine residence, Stanley's story ha[d] to change a little bit. And prior to that, I wasn't sleeping that hard. After that, "to my knowledge," "to my knowledge."
I can't question his knowledge. I cannot say, I know what you knew. But he could evade the question by saying, "well, to my knowledge," because that's something I cannot corroborate. That is a move that is common among the criminal element to keep law enforcement at bay and not be able to determine the actual facts of what happened.
Jones also stated that Stanley's assertions that he "had no will to live" were indicative of guilt, testifying: "I have not seen, in my experience, an innocent person willing to die because they were talking with police officers and FBI agents. Never in my career have I seen that with an innocent person." He continued: "I also don't reasonably believe an innocent person would want to die because they were being talked to by police officers. It doesn't make sense to me." The prosecutor asked if, "in [Jones'] experience, has it been a demonstration of consciousness of guilt that an individual will want to die rather than tell the truth." Jones responded, "In my experience, sometimes people believe death would be better than a long-term prison sentence."
The prosecution also asked how Jones viewed Stanley's "call on his faith or swearing to God" during the course of the interview. Jones testified:
Beyond my own religious feelings towards what he was saying, the training that I've received, that is a common way that somebody with guilt will want to validate the story they're telling you. They can't validate it with facts, so they hope they can get you to believe them, because they're trying to validate their story through a supposed belief.
He may be a God-fearing man, I do not know that, but the truth is the truth. You do not have to back the truth. When I'm asked a question, is the car blue, the car is blue. I don't have to swear to God. I do not have to bring religion into that statement. The truth is the truth.
My training has shown me, and more[ ]so my experience in all these interviews, when people start bringing faith into validating of their statements, that they're deceptive. Those are deceptive statements.
Defense counsel did not make any objections during Jones' testimony about the truthfulness of Stanley's statements. Jones was the final witness at trial. During closing argument, the prosecutor referred the jury back to Jones' testimony, stating that Jones "in scrutinizing this interview with Stanley Hill ... has to figure out what's truthful in this interview, what's he trying to hide."
Stanley does not argue that Jones was unqualified to offer the opinion he provided, but instead that the subject matter of his testimony-the credibility of another person-may not be addressed by an expert testifying under Rule 702. We agree. As this court made clear ... "[t]he credibility of witnesses is generally not an appropriate subject for expert testimony." ... There are several reasons for the prohibition against expert testimony on other witness' credibility. Such testimony: (1) "usurps a critical function of the jury"; (2) "is not helpful to the jury, which can make its own determination of credibility"; and (3) when provided by "impressively qualified experts on the credibility of other witnesses is prejudicial and unduly influences the jury." Id. (citations omitted).
This testimony plainly violated Rule 702 and our case law interpreting the rule. Even if Agent Jones arguably had "specialized knowledge,"... , on the subject of interrogations, his testimony on Stanley's credibility fails under Rule 702 because it "encroache[d] upon the jury's vital and exclusive function to make credibility determinations, and therefore [did] not assist the trier of fact." ... (quotation omitted). He simply informed the jury that Stanley's version of events was unworthy of belief based on his opinion of what is generally "reasonable."
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Denial of juvenile suspect's request to see mother during interrogation did not render the confession inadmissible
In Robinson v. Commonwealth (April 2014) the Court of Appeals of Virginia upheld the lower courts admission of the defendant's incriminating statements even though his request to speak to his mother was denied during the interrogation.
From the court's opinion:
"Appellant was placed in a room without restraints, given a drink, and an opportunity to use the restroom. He gave no indication of being under the influence of drugs, responded to questions asked, and remained calm, despite crying towards the end of the interview when he confessed. The portion of the interview leading up to appellant's confession lasted less than half an hour. Additionally, Detective Rodey read appellant his Miranda rights aloud at the beginning of the interview and appellant signed the waiver form. Throughout the videotaped interview, Detective Rodey sat across a table from appellant and his demeanor, tone, and language while questioning appellant were neither aggressive nor threatening. While it is clear from Prioleau's and appellant's mother's testimony that appellant had some emotional and learning disabilities, those issues did not prevent appellant from progressing through school and earning passing grades. While his attendance and academic records are not ideal, neither are they so lacking that we can say appellant's ability to understand the extent and nature of his rights was so impaired as to render his confession involuntary.
Furthermore, while Detective Rodey's statements to appellant that he was considered an adult for purposes of the new charges were inaccurate, appellant never argued that the misrepresentation was intentional or made in bad faith. More importantly, the misrepresentation does not rise to the level of such deliberate deception or coercion as would compel appellant to involuntarily confess. Indeed, Detective Rodey's statement did not "impede [appellant's] ... 'ability to understand the nature of his rights and the consequences of abandoning them.' .... Appellant had been made aware of and acknowledged his Miranda rights and, moreover, it was not his first experience with the justice system.
... For these same reasons, we cannot say that Detective Rodey's refusal of appellant's requests to see his mother rendered appellant's confession involuntary or coerced. At its core, this case assesses the significance of a juvenile's request for a parent in the context of determining the voluntariness of a subsequent confession, an issue that has not been specifically addressed by the Supreme Court or this Court. Indeed, while this case may highlight significant concerns previously raised in the jurisprudence relating to law enforcement personnel declining to honor a minor's request to see his parent when subjected to custodial interrogation, given the specific facts of this case, we cannot say that appellant's confession was coerced. Appellant was not unfamiliar with the justice system. He had recently pled guilty to and was awaiting sentencing on very similar charges of armed robbery and malicious wounding. Detective Rodey did not do anything to overbear appellant's will or physically intimidate appellant to obtain the confession. To the contrary, Detective Rodey stated that appellant could talk to his mother later. Finally, before ever asking for his mother and less than thirty minutes before his confession, appellant had been informed of his Miranda rights, acknowledged his understanding of them, signed a waiver to that effect, and never requested counsel."
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Anatomy of a false confession case
In Halsey v. Pfeiffer, et al. (April 2014) the US Court of Appeals, Third Circuit reversed the lower court's decision to grant the appellees a summary Judgment on Halsey's coercion claim. From the Court of Appeals opinion:
"The facts underlying this appeal--many of which are undisputed--are hardly believable. Plaintiff-Appellant, Byron Halsey, a young man with limited education, learned that the two small children for whom he had been caring had been tortured and murdered. He wanted to help in the investigation of these heinous crimes but found himself isolated in a police interview room, accused of the murders, told he had failed a polygraph examination (that we now know he passed), and confronted with false incriminating evidence. For a time he maintained his innocence, but, after being interrogated for a period extending over several days, and in a state of great fear, he signed a document purporting to be his confession to the crimes. Subsequently, he was charged, indicted, convicted, and sentenced to prison for two life terms. But his "confession" contained details that the investigators must have inserted because Halsey could not have known them. And the real killer, though he had a record of sexual assaults, was known to the police, and was an obvious potential suspect as he lived in an apartment next to the one that Halsey, the children, and their mother occupied, avoided arrest despite nervously asking the investigating detectives whether he would be "locked up." Finally, after 22 years the State of New Jersey released Halsey from prison, not because trial error cast doubt on the result of his criminal trial, but because it had been established beyond all doubt that he had not committed the offenses. Except when an innocent defendant is executed, we hardly can conceive of a worse miscarriage of justice.
After his release, Halsey filed this civil action under 42 U.S.C. S 1983 with supplemental state-law claims alleging that state actors and entities involved in his prosecution had violated his constitutional rights. The defendants included, inter alia, defendants-appellees Frank Pfeiffer and Raymond Lynch, the two investigating police officers who Halsey claims (1) fabricated the oral confession that led to the prosecutor filing charges against him, (2) maliciously prosecuted him, and (3) coerced him into signing the fabricated confession, which was the critical evidence at his criminal trial. On appellees' motions for summary judgment, the District Court entered judgment in their favor on all three claims on February 21, 2013, because the Court believed that they had qualified immunity from Halsey's claims. Halsey v. Pfeiffer, Civ. No. 09-1138, 2013 WL 646200 (D.N.J. Feb. 21, 2013) ( Halsey ). Halsey then filed this appeal.
We will reverse and remand the case to the District Court for further proceedings. First, we reaffirm what has been apparent for decades to all reasonable police officers: a police officer who fabricates evidence against a criminal defendant to obtain his conviction violates the defendant's constitutional right to due process of law. Second, we reinstate Halsey's malicious prosecution claim, principally because the prosecutor instrumental in the initiation of the criminal case against Halsey has acknowledged that the false confession that appellees claimed they obtained from Halsey contributed to the prosecutor's decision to charge Halsey, and for that reason we will not treat the decision to prosecute as an intervening act absolving appellees from liability. Moreover, without that false confession, there would not have been direct evidence linking Halsey to the crimes so that the prosecutor would not have had cause to prosecute Halsey. Therefore, the District Court should not have held on the motions for summary judgment that appellees had a probable cause defense to Halsey's malicious prosecution claim. Third, we conclude that because the evidence was sufficient for a rational jury to find that appellees, who had interrogated Halsey for many hours, had coerced him into signing the false confession, the Court should not have granted appellees a summary judgment on Halsey's coercion claim."
In examining the coercion claim, the court stated, "The final aspect of the disposition of appellees' motions for summary judgment that we address is the dismissal of Halsey's claim that appellees coerced him into adopting a confession that they fabricated and by doing so denied him due process of law. The parties sharply dispute how we should resolve the appeal on this issue because, on one hand, the record contains evidence that appellees forced Halsey to sign the incriminating statement by overwhelming his will to continue denying his involvement in the crime but, on the other hand, there is no indication that appellees physically abused Halsey or even tricked him into signing the statement. Our review of the record, considered in the light most favorable to Halsey, convinces us that there is enough of a factual issue to warrant the conclusion that the District Court should have denied the motions for summary judgment on the coercion claim.
The District Court seemed to have viewed the interrogation process as a string of separated events, beginning with appellees questioning Halsey, proceeding with Propsner entering the room to review Halsey's statement, and culminating with Halsey signing his confession. It appears that, to the Court, appellees' conduct during the first stage of the process had no bearing on the resolution of the coercion issue because Halsey signed the confession later without objecting to the process's earlier aspects.
Our precedent forecloses the adoption of this compartmentalized view of the interrogation process in which a court considers the material events independently or disjunctively rather than as connected episodes in an ongoing process. In United States ex rel. Johnson v. Yeager, 327 F.2d 311, 314 (3d Cir.1963), we reversed the denial of a habeas corpus petition that a defendant in state custody, Wayne Godfrey, had filed. Godfrey had been interrogated for many hours, deprived of sleep and counsel, and, contrary to state law, had not been taken "promptly" for a hearing before a magistrate judge following his arrest. The bulk of Godfrey's interrogation occurred over a night before he confessed the next morning. Id. at 313. Several police officers did the questioning, but they ultimately took Godfrey to a chief detective officer in the morning to whom Godfrey formally confessed. Id. That confession "proceeded smoothly and without apparent reluctance on Godfrey's part." Id. We noted that if we considered only the last aspect of the confession process in addressing the coercion issue, we would have deemed the confession voluntary as the state court had when it admitted the confession into evidence. Id. at 315. But we rejected the conclusion of the state court and held that the "civil manner" in which the chief detective treated the defendant could not have "cured or made irrelevant the events of the preceding 21 hours." Id.
As we held in Yeager, and as we reaffirm today, the compartmentalized view of the interrogation process cannot be squared with settled Supreme Court precedent. "[C]oercion may have a persisting invalidating effect upon a confession," even when the confession is apparently made without "reluctance [and] in response to civil questioning in pleasant surroundings." Id. (citing Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936) and Reck v. Pate, 367 U.S. 433, 81 S.Ct. 1541, 6 L.Ed.2d 948(1961)). Thus, "[t]he events preceding the formal confession must be considered as well as its immediately attendant circumstances." Id. at 313. ... Accordingly, Halsey's signature did not extinguish appellees' alleged misconduct during the interrogation.
Our foregoing conclusion leaves us with the question of whether appellees' misconduct could be found to have led Halsey to make the confession. The pertinent facts on this issue, viewed in light most favorable to Halsey, are compelling. Over the course of less than two days, appellees detained Halsey, a man of limited intelligence and little education, who was unaccompanied by a friend or an attorney, for about 30 hours and questioned him almost continuously for about 17 of those hours, of which about nine were highly confrontational, a period measured from the time Pfeiffer took what Halsey called a "forceful" approach continuing to the time that Halsey signed the confession. Appellees persisted in telling Halsey that he was guilty, "hollering and screaming" at him,... despite being aware of Halsey's mental limitations and despite Halsey's repeated protestations of his innocence. Furthermore, Halsey cried and, according to Pfeiffer, went into a trance towards the end of the interrogation. At that point Halsey, who claims that he feared for his life, signed a statement in the appellees' presence even though it included details that only the police and the murderer could have known..... Overall, we are satisfied that Halsey presented enough evidence to withstand the motions for summary judgment on the coercion issue. It is true, as the District Court noted and as appellees repeat in their briefs, that Halsey was not beaten, bribed, or threatened. Furthermore, he was advised of his Miranda rights, and, at times, he was given breaks when being questioned. Moreover, given his prior arrests, Halsey had some familiarity in dealing with the police, though his record of repeated arrests suggests that he took away very little from those experiences. In fact, the record does not suggest that he was particularly comfortable in navigating the criminal justice system.
But none of these reasons could justify our affirming the order granting summary judgment. .... There is no magic set of considerations that justifies the granting of summary judgment on a coercion claim, for "a totality of the circumstances analysis does not permit state officials to cherry-pick cases that address individual potentially coercive tactics, isolated one from the other, in order to insulate themselves when they have combined all of those tactics in an effort to overbear an accused's will." Wilson, 260 F.3d at 953. When we weigh the factors militating against and favoring a finding that Halsey's confession was coerced, we are satisfied that rational jurors reasonably could find that Halsey was coerced into signing the confession.
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Gudjonsson Suggestibility Scale found not to meet Frye test - there is not acceptance of the GSS in the forensic psychology community
In People v. Shanklin (Jan. 2014) the Appellate Court of Illinois, First District, Sixth Division, affirmed the trial court's opinion that that trial court could hold Fryehearing on admissibility of expert testimony on defendant's suggestibility to interrogation; that measure of suggestibility was not generally accepted in determining voluntariness of confessions; and, that defendant's confession was voluntary. Here is a very detailed selection from the Appeals court decision as they reviewed the discussion and testimony regarding the Gudjonsson Suggestibility Scale (GSS).
In his amended motion to suppress, defendant alleged that at the time of his police interrogation, he was suffering from heroin withdrawal, possessed significantly impaired cognitive functioning, and was highly suggestible, thereby making his resulting statements involuntary. Defendant tendered a psychological report wherein Dr. James P. Sullivan opined on defendant's suggestibility based in part on the Gudjonsson Suggestibility Scale (GSS). The State then filed a motion for a Frye hearing. The State claimed that the GSS is unreliable and does not meet the Frye standard, and that testimony regarding suggestibility invades upon the province of the trier of fact. Defendant filed a motion to strike the State's motion for a Frye hearing. After hearing argument and taking the matter under advisement, the trial court granted the State's motion and ordered the Frye hearing to be conducted in conjunction with the hearing on the amended motion to suppress statements.
The Frye Hearing
Dr. James Sullivan testified for the defense as an expert in forensic neuropsychology. Dr. Sullivan testified that the GSS is "specifically designed to identify individuals who may demonstrate decreased resistance to subtle pressure or interrogative techniques. Oftentimes individuals who are identified as being more suggestible by virtue of the results of the GSS have been shown through research to have provided more erroneous information during statements they provide to the police." Dr. Sullivan testified that the GSS provides information about psychological factors relevant to the issue of coercion but that he would "never include [GSS results] for the purpose of being dispositive or offering a final conclusion about whether an individual's statement is voluntary or not."
Dr. Sullivan testified that the GSS has been around since the mid-1980s and has been the subject of all sorts of research and has undergone a whole process of validation. Dr. Sullivan stated that the GSS is widely accepted "in forensic clinical psychology regarding Miranda issues" because it is widely described in the literature. He pointed to references to the GSS in the Handbook of Psychology, Volume 11: Forensic Psychology (2003), by Allen **215 *292 M. Goldstein, and Psychological Evaluations for the Courts, by Gary B. Melton et al. (3d ed. 2007), which is a handbook for mental health professionals and lawyers and is "pretty widely acknowledged as the authoritative text for psychological involvement in the legal system." Both books identify the GSS as a measure to assess suggestibility in Miranda evaluations.
Dr. Sullivan opined: "There is no question that [the GSS] is accepted in the field in which I am an expert [forensic neuropsychology]. I would like to say, though, * * * that the field in which I am an expert is a relatively small field." Dr. Sullivan explained that the GSS provides a story and then asks the subject questions about the story, many of the questions being leading. The GSS gives a yield measure of how many of the leading questions the subject gave into. After answering the questions the subject is told he did not do a very good job and is told to try harder, and he is asked the same questions again. The frequency with which the subject changes his answers is called shift and is thought to be an indication of interrogative pressure.
In the instant case, Dr. Sullivan administered the GSS to defendant. Defendant's yield score was 11, which places him at the 95th percentile of the normative sample. His shift score was 7, which places him at the 90th percentile, so that his total suggestibility score was 18. Looking at the normative data, this places him in the high end of the continuum ( i.e., defendant is highly suggestible).
Dr. Sullivan testified that a person with a criminal record who has had multiple "contacts with the justice system" is generally less suggestible than a person who has not had such contacts. When administering the GSS to defendant, Dr. Sullivan was not aware of defendant's extensive criminal history, i.e., of his prior "contacts with the justice system" consisting of seven felony convictions.
Dr. Sullivan conceded there has been a lot of criticism of the GSS because Mr. Gudjonsson's normative data comes from Iceland and the United Kingdom and there are cultural and vocabulary differences between the United States and those countries. Dr. Sullivan stated, though, that the fact the GSS has been criticized does not mean it has not been widely accepted.
Dr. Sullivan admitted that Bruce Frumkin, a psychologist who wrote a chapter in a book he edited, stated in 2003 that "although Gudjonsson's work is well known in the area of suggestibility research, it has not been widely used by forensic clinicians in the United States." In 2008, Frumkin stated that the GSS is a specialized forensic assessment instrument "unknown to many psychologists."
Dr. Sullivan was also aware of a survey in the publication Professional Psychology Research and Practice in 2003 regarding tests used in forensic psychological evaluations, and that the GSS was not mentioned therein. The same was true for a survey in the Journal of Personality Assessment.
Dr. Joan Leska testified for the defense as an expert in forensic psychology. She testified that the GSS is not a new or novel test; the first version came out in 1987 and the second version came out in 1997. Dr. Leska opined that the GSS is generally accepted in the forensic psychological community. The GSS is referenced in: Psychological Evaluations for the Court, by Melton; the Handbook of Psychology, by Goldstein; and Interrogation and Disputed Confessions: A Manual for Forensic Practice (2005), by Gregory Declue, Ph.D. The GSS has been referenced in workshops that Dr. Leska **216 *293 has attended at the American Academy for Forensic Psychologists and she has used it herself over 20 times.
Dr. Leska testified that the GSS "provides information to the trier of fact in terms of whether this person has certain characteristics that would make him or her more vulnerable to suggestion or to influence or to providing erroneous material." Dr. Leska agreed that the GSS is not a measure of someone's ability to understand Miranda and that the GSS has been criticized because it was normed on a British sample. However, Dr. Leska did not agree that the culture of America is different than the culture of the United Kingdom.
Dr. Leska was asked about a statement by Mr. Gudjonsson that the validity of the GSS in predicting suggestibility during an actual police interrogation was not known. Dr. Leska replied, "I would agree with that. There [have] been other studies that say in the actual situation we don't know." Dr. Leska further testified in pertinent part:
"Q. Would you agree that there are different types of memory?
A. Yes, I do.
Q. And semantic memory is memory for concepts, words and objects, right?
Q. And then there's episodic or event memory, correct?
A. Episodic or autobiographical, correct.
Q. Correct. And that's the individual's unique store of autobiographical memory, correct?
Q. Police interrogations are concerned with the autobiographical memory, correct?
A. It could be, if * * * the person is involved in crime.
Q. But the GSS is testing semantic memory, correct?
Dr. Leska also testified that a person with a criminal history who has had contacts with the criminal justice system is less suggestible than a person without such a criminal history.
Dr. Sharon Coleman testified for the State as an expert in forensic psychology. Dr. Coleman is a clinical psychologist with the Forensic Clinical Services of Cook County, which provides the court-ordered examinations for the circuit court of Cook County. Dr. Coleman testified she is familiar with the GSS but she does not use it because she does not "believe the GSS measures anything clinically relevant to the evaluations [she] performed at Forensic Clinical Services." She testified in pertinent part:
"Q. Are there problems with the way the GSS was standardized or normed?
A. I believe so, yes.
Q. What are the problems?
A. Typically, this test was normed on a population of British and some Icelandic citizens which those are the norms that are currently used with this test with American populations. * * * Typically, standardized instruments use a population that's going to be representative of the population where the test is going to be used in. So one of the criticisms or problems that there is with the GSS is that the norms aren't necessarily representative of the American population in which its [ sic] been used.
* * *
Q. To your knowledge, has there ever been any United States validation of the GSS?
A. There has been an attempt to look at how some American samples score on the GSS. * * *
Q. Do you know what the results of the attempt were?
A. The results showed there were some distinct differences between how American samples score * * * on certain measures of this test compared to the British counterparts.
Q. Would that affect where they would be placed if there were a scale suggestibility, would that affect where they would be placed relative to subjects from the United Kingdom?
A. Well, some of the percentile rankings for the British norm versus the American subjects don't--aren't necessarily * * * consistent. So that if you have a percentile ranking at 75 percentile, it doesn't necessarily mean the same thing if you are testing somebody from an American population. * * *
Q. How about cutoffs as it relates to assessing somebody's suggestibility?
* * *
A. Yes. There is a problem.
Q. What is the problem?
A. There is not operationalized diagnostic cutoff for what's considered high and low or high suggestibility or really high suggestible versus low suggestible.
Q. * * * The subjects in the initial validation of the GSS, do you know what that status was in general?
A. I think that again one of the difficulties or problems with the normative samples of the GSS is that the normative sample did not just contain pretrial detainees but it also contained some individuals who * * * were victims of crimes, some individuals who were witnesses of crimes, and some individuals who may have been already convicted of crimes. * * * [T]he inclusion of that part of the population is problematic for the normative group.
* * *
Q. The fact that the GSS is based on a story that's told to somebody versus a custodial interrogation which involves * * * a real life scenario, does that affect this test in any way?
* * *
A. Again, I think one of the criticisms and problems with the GSS is that it is a test that's administered verbally, a story that's relatively benign to the examinee * * *. A custodial situation or an interrogation situation is not just experienced verbally and by hearing but rather it's something that a person has some experience with. * * * When they are relaying information about a custodial situation, again, they are calling on not just what they hear, they are calling on what they have seen, what they have smelled, what they have touched and so a multiple sensory modality to relate information back as opposed to a testing situation which does not involve all those sensory modalities.
Q. No personal relevance in the story of the GSS?
Dr. Coleman testified she has conducted thousands of Miranda evaluations and reviewed the reports of other professionals and the GSS is not generally accepted within the office of Forensic Clinical Services. Dr. Coleman keeps up on surveys of what doctors in the psychological field are using for testing, and she stated that in the recent surveys "the GSS has not been mentioned as an instrument used prominently or by forensic psychologists." Dr. Coleman noted that Thomas Grisso, who is "well-known in the area of Miranda evaluations," had referenced the GSS in a 1986 book when discussing " the **218 *295 evaluation of Miranda abilities," but that by 2003, he had "reevaluated his view of the GSS as a useful tool in light of assessing Miranda abilities"; Grisso's 2003 edition of the book no longer contained a recommendation of the GSS. Dr. Coleman testified that "[t]he GSS has not gained general acceptance in the field of psychology."
Dr. Peter Lourgos, staff forensic psychiatrist and assistant director of Forensic Clinical Services, testified he never asks psychologists to test for suggestibility as it "is not a useful assessment in these types of evaluations." He stated that suggestibility is not a psychiatric diagnosis, it is not listed in the Diagnostic and Statistical Manual of Mental Disorders, and "there is no formalized definition of what it is to be suggestible."
At the conclusion of the Frye hearing, the trial court concluded "there is not general acceptance of the GSS in the forensic psychology community." Accordingly, the trial court found that the GSS did not meet the Frye standard and barred consideration of such evidence at the hearing on the amended motion to suppress and at trial.
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Combination of assertion the defendant's daughter would suffer without an admission and an implied promise of leniency yield involuntary confession
In State v. Ruiz-Piza (April 2014) the Court of Appeals of Oregon found that the defendant's statements were not voluntarily made. The focus was on two issues: the officers' assertions that the medical care received by defendant's daughter would suffer if he did not confess, and the notion that he was induced to confess by an implied promise of leniency.
In their analysis the court stated:
We begin with the issue of G's medical care; at the outset we state our agreement with the parties that the record cannot reasonably be read to reveal that the officers threatened to withhold medical care from G in the absence of a confession, and we do not perceive that the trial court so concluded. What the officers did do, however, was cultivate and leverage defendant's fear that, unless he admitted to shaking her, G's medical care would suffer.... Having made clear that G had serious medical issues that could be ameliorated by a confession--an assertion that, as a matter of medical fact, is without any support in the record--the officers also appealed to defendant's paternal responsibilities, his religion, stated that defendant was the only one who could help G, and stated, in effect, that the way to provide that help was to tell the officers that he had accidently shaken her. Those statements, taken in the circumstances in which they were made, constituted an "inducement through * * * fear" that was specifically calculated to capitalize on what the trial court recognized as defendant's acute vulnerability.
As to the implied promise of leniency: When Hurley stated "we have to have an explanation," a stark choice was put to defendant: either confess to accidentally shaking G and--in addition to securing better medical care--the officers would accept that version of events, or do not confess, and allow the officers to assume that the child had been abused. Whatever abstract legal distinction might exist between accidentally injuring a child while shaking the child and "child abuse" is of no moment; the obvious intent in drawing a distinction between the two alternatives was to induce defendant to confess to less-serious conduct than it would be assumed that he had committed in the absence of a confession. That the officers never explicitly made a promise of leniency or immunity is not dispositive; the effect of their approach was to tell defendant: "the only way to avoid having the police conclude that you are a child abuser is to tell us that you accidentally shook your daughter."
The Appeals court stated, "we do not decide whether either line of police conduct, standing alone, would represent an insurmountable obstacle to the state's effort to show that the statements were made voluntarily. When the inducements discussed above are taken in view of each other and the totality of the underlying circumstances of the interviews, we conclude that the trial court did not err in concluding that the statements were made involuntarily."
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Equivocal invocation of rights: "[t]he context of the recorded statement clearly indicates that [Piatnitsky] was willing to speak with the detectives, just not on tape."
In State v. Piatnitsky (May 2014) the Court of Appeals of Washington, Division 1 found that the defendant's statements did not constitute an unequivocal invocation of his right to remain silent. Piatnitsky contends that he unequivocally invoked his right to remain silent during the audio-recorded interview with detectives, thus rendering his subsequent written statement inadmissible at trial. As the trial court found, the context of Piatnitsky's statements to police indicates that he wished to convey his version of events to the detectives, although he did not want to do so on audiotape. Such is inconsistent with an unequivocal assertion of the right to remain silent. Thus, the trial court properly admitted Piatnitsky's written statement.
Moreover, the audiotape and the transcript of the audio-recorded interview, both of which the trial court considered at the CrR 3.5 hearing, demonstrate that Piatnitsky at no time during that interview stated that he did not want to convey information to the detectives. Piatnitsky stated, "I'm not ready to do this, man.... I just write it down, man. I can't do this. I, I, I just write, man. I don't, I don't want ... I don't want to talk right now, man." Then, Piatnitsky conveyed agreement with Detective Keller's statement, "Okay, but let's go over the rights on tape, and then you can write it down, okay"--Piatnitsky replied, "All right, man." Later, Detective Allen asked Piatnitsky, "Are you sure you don't want to do it on tape like you said you did; you want to get [it] in your own words?" Piatnitsky replied, "Yes, sir." Detective Keller then said, "So you'd rather take a written statement, do a written one." Piatnitsky's reply--transcribed as "Yes. I don't know (unintelligible)"--was muffled. Detective Keller then stated, "Okay, it's too hard to talk about; you'd rather write it." Piatnitsky did not reply.
An accused's statements constitute an unequivocal assertion of the right to remain silent only where they are sufficiently clear such that "a reasonable police officer in the circumstances" would understand the statements to be an assertion of that right.... Here, the detectives believed that Piatnitsky wished to give a statement (albeit not on audiotape), thus indicating that Piatnitsky's statements were not sufficiently clear to constitute an unequivocal assertion of his right to remain silent. The trial court determined that Piatnitsky's statements were not an invocation of his right to remain silent but, rather, were intended to convey that he no longer wished to give an audio-recorded statement. The trial court was not required to "ignore the tenor or sense" of Piatnitsky's statements in determining whether he had invoked that right; nor are we.
Considering the circumstances surrounding Piatnitsky's statements--as the trial court properly did and as we must--it is apparent that the facts support the trial court's conclusion that "[t]he context of the recorded statement clearly indicates that [Piatnitsky] was willing to speak with the detectives, just not on tape."
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Court should have allowed Dr. Richard Ofshe to testify in general about false confessions
In State v. Perea (November 2013) the Supreme Court of Utah found that Dr. Richard Ofshe should have been allowed to testify at trial on the phenomenon of false confessions generally. From their opinion:
Mr. Perea argues that the district court also erroneously excluded the testimony of Dr. Richard Ofshe, a defense expert who intended to testify regarding false confessions. The district court ruled first that Dr. Ofshe could not testify as to the truthfulness of Mr. Perea's confession. It next questioned whether or not an expert was needed to testify to the phenomena of false confessions and concluded that "a jury of lay people can decide the question as to whether or not a confession is reliable, involuntary, or coerced without having an expert testify on that issue." Finally, the court found that Dr. Ofshe's methods were not "science" and refused to allow any of his proffered testimony.
Because we find that any error was harmless, we decline to consider whether the district court erred when it prohibited Dr. Ofshe from directly testifying as to the veracity of Mr. Perea's confession. However, we find the district court did err when it barred Dr. Ofshe from testifying as to the phenomenon of false confessions generally.
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Investigators did not follow suggested guidelines when interrogating mentally deficient individual as detailed in Reid training manual and text, Criminal Interrogation and Confessions
In US v. Preston (May 2014) the US Court of Appeals the court stated, "Today we consider the voluntariness of a confession given by Tymond Preston, an intellectually disabled eighteen-year-old. To elicit this confession, the police, among other tactics, repeatedly presented Preston with the choice of confessing to a heinous crime or to a less heinous crime; rejected his denials of guilt; instructed him on the responses they would accept; and fed him the details of the crime to which they wanted him to confess. Under the totality of the circumstances, including Preston's intellectual disability, we conclude that the confession that resulted from this questioning was involuntarily given and should not have been admitted at trial."
From their opinion the court stated:
Preston was eighteen, with an IQ of sixty-five. The two officers realized early in the interrogation that Preston suffered some sort of intellectual disability, as his initial responses gave them cause to believe that he had an impairment. They therefore inquired directly if he was "disabled." Preston did not understand the word "disabled," and so asked its meaning. That he had to ask for an explanation of a common word itself suggests the extent of his cognitive impairment. After the officers explained the word's meaning, Preston agreed that he was disabled, elaborating that he was not able to complete his schooling as a result.
Summarizing the evidence regarding how the intellectually impaired respond to contemporary police interrogation methods, several scholars have listed "seven common characteristics" of such people, including (1) "unusual[ ] susceptib [ility] to the perceived wishes of authority figures"; (2) "a generalized desire to please"; (3) difficulty "discern[ing] when they are in an adversarial situation, especially with police officers," who they generally are taught exist to provide help; (4) "incomplete or immature concepts of blameworthiness and culpability"; (5) "[d]eficits in attention or impulse control"; (6) "inaccurate views of their own capacities"; and (7) "a tendency not to identify themselves as disabled" and to "mask[ ] their limitations ."
"[A]s interrogators have turned to more subtle forms of psychological persuasion," and away from physical coercion, "courts have found the mental condition of the defendant a more significant factor in the 'voluntariness' calculus." ... It simply "takes less" in terms of sophisticated police interrogation techniques "to interfere with the deliberative processes of one whose capacity for rational choice is limited than it takes to affect the deliberative processes of one whose capacity is not so limited."
Among the police tactics used here were several recommended by a manual on police interrogation, see Fred E. Inbau, John E. Reid, Joseph P. Buckley & Brian C. Jayne, Criminal Interrogation and Confessions (5th ed. 2013) ("Reid manual"), from which both the officers who interrogated Preston were trained. The officers, however, sometimes disregarded the manual's cautions about the tactics they used.
For example, using one of the recommended approaches, the two officers asked Preston a number of questions that presented him with two alternatives as to how the crime was committed. See id. at 293-303. "Both alternatives are highly incriminating, but they are worded in such a way that one alternative acts as a face-saving device whilst the other implies some repulsive motivation." Gudjonsson, supra, at 19. In this instance, Preston was asked to choose, for example, whether he was a monster--a sexual predator who repeatedly preys on children--or if the abuse of the child was a one-time occurrence.
These questions were derived from similar exemplars in the Reid manual. Reid manual, supra, at 296-97, 298. The manual, however, suggests that the inculpatory alternatives technique recommended may be unduly coercive when used for suspects of seriously impaired mental ability: it trains agents in the alternative questioning method with the understanding that "no innocent suspect, with normal intelligence and mental capacity, would acknowledge committing a crime merely because the investigation contrasted a less desirable circumstance to a more desirable one and encouraged the suspect to accept it." Reid manual, supra, at 303 (emphasis added). The psychological evidence regarding Preston's intellectual disabilities confirms this assessment by indicating that he is confused by complexity, abstraction, and multiplicity, and likely to acquiesce in suggestions made by the questioner. As a result, recognizing that where one is asked "a or b," one can answer "neither one," rather than acquiescing in one or the other, could well have exceeded his intellectual abilities.
The agents coupled the techniques of alternative questioning, providing suggestive details, and repetitious and insistent questions with other techniques that the Reid manual specifically cautions against. The Reid manual specifically warns that the questioning "should not be, in any way, based on leniency if the more understanding alternative question is accepted." Reid manual, supra, at 300 (emphasis added). It also cautions that when questioning people of low intelligence, investigators should avoid offering promises of leniency or using deceptive interrogation techniques due to the vulnerability of this group. Id. at 332-33, 352, 429.
Assuredly, interrogating officers can make false representations concerning the crime or the investigation during questioning without always rendering an ensuing confession coerced. ..... But false promises stand on a different footing. In particular, the Supreme Court has observed that "the test of voluntariness" is "whether the confession was extracted by any sort of threats or violence, or obtained by any direct or implied promises, however slight, or by the exertion of any improper influence."
The types of deception used here, which primarily related to considerations extrinsic to the suspect's guilt or innocence, are particularly problematic when used on a person with an intellectual disability. Intrinsic falsehoods, which relate to the facts of the crime itself or of the investigation--such as falsely informing a suspect that the victim had survived and identified the suspect--do "not lead [the suspect] to consider anything beyond his own beliefs regarding his actual guilt or innocence, his moral sense of right and wrong, and his judgment regarding the likelihood that the police had garnered enough valid evidence linking him to the crime." .... But here, the police did not simply inflate the amount of incriminating evidence against Preston. Instead, they suggested falsely that if he confessed, his admissions would not be used against him--he could "move on" after apologizing to the child, rather than being punished. This approach "interject[ed] the type of extrinsic considerations" more likely to "distort[ ] an otherwise rational choice of whether to confess or remain silent." .... The intellectually disabled are more susceptible to such extrinsic deception tactics.
Accordingly, we conclude that the district court erred in admitting Preston's confession.
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