Legal Updates Spring 2015

Court rules that a minimal understanding of Miranda rights is sufficient to make a knowing and intelligent waiver

In People v. Thames (March 2015) the Supreme Court of Colorado ruled that the defendant "need only have had a minimal understanding of his Miranda rights in order to have knowingly and intelligently waived them." And furthermore, "a suspect's awareness of all possible subjects of questioning in advance of interrogation is not relevant to determining whether the suspect voluntarily, knowingly, and intelligently waived his Fifth Amendment privilege."

In this case the "investigators gave Thames an oral Miranda advisement, Thames confirmed that he understood his Miranda rights, and he signed a written waiver form before making statements the prosecution wishes to use in its case-in-chief. Relying on the defense's expert witness who testified that Thames had difficulty understanding spoken paragraphs concerning abstract ideas, the trial court concluded that he did not knowingly and intelligently waive his Miranda rights. Under the totality of the circumstances, we conclude that Thames knowingly and intelligently waived his Miranda rights. Therefore, we reverse the trial court's order."

In their decision the Supreme Court pointed out the value of recording the questioning - "The existence of the video recording "enables us to undertake this review not just from the 'cold record,' but--at least in part--in precisely the same manner as the trial court.".... Applying the totality of the circumstances test, we conclude that Thames knowingly and intelligently waived his Miranda rights."

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Court excludes the testimony of Dr. Deborah Davis regarding false confessions

In US v. Oppenhein (April 2015) the US District Court, D. Utah, granted the government's motion to exclude the testimony of Dr. Deborah Davis on the issue of false confessions. The court stated the following in their opinion:

"The probative value of Dr. Davis's proposed testimony is minimal. Dr. Davis intends to present general testimony about false confessions. There is no indication that she has examined Defendant or that she intends to opine about the specific interaction between Defendant and law enforcement. The Tenth Circuit encountered similar testimony from Dr. Davis in United States v. Benally.... The court there found that such evidence had "minimal" relevance.14 The same conclusion is warranted here.

The Court further finds that the limited relevance of this testimony is substantially outweighed by the potential of unfair prejudice, confusing the issue, misleading the jury, undue delay, and wasting time... As the court in Benally found, "a district court could reasonably conclude that the prejudice to the prosecution that would result from permitting an expert to opine that prior confessions should essentially be disregarded because they are just as likely to be true as untrue, substantially outweighs the testimony's minimal probative value."

Moreover, admission of testimony of this nature would impermissibly intrude on the jury's role in making credibility determinations. This conclusion has repeatedly been reaffirmed by the Tenth Circuit.... If admitted as evidence, the jurors will have the opportunity to view the interview at issue and can draw their own conclusions as to Defendant's credibility. Therefore, the Court will exclude Dr. Davis's testimony."

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Aggressive behavior does not lead to a coerced confession

In the case, In the Interest of P.G. v. State (January 2015) the Court of Appeals of Utah did not find the investigator's aggressive behavior during the interrogation to be coercive. From the court's opinion:

"Second, the detective's persistence during P.G.'s interrogation does not undermine the juvenile court's finding that "[w]hile the detective's manner was rather aggressive at times it did not rise to the level of being coercive." For example, during P.G.'s interrogation, the detective repeatedly told P.G. that he already knew that P.G. sexually assaulted M.G., he refused to accept P.G.'s denials, and he shouted once at P.G. to "stop lying." However, "a police officer's exhortations to tell the truth or assertions that a suspect is lying do not automatically render a resulting confession involuntary." ... the contrary, "we think it eminently reasonable that police officers challenge criminal suspects' questionable explanations in their pursuit of the truth." ... Here, the detective was not merely posturing. He had substantial evidence prior to the interrogation that P.G. sexually abused M.G. M.G. had already told a school counselor, another school employee, and another detective about P.G.'s abuse. P.G.'s younger brother also told the other detective that P.G. had informed their mother about the abuse. Thus, although the interviewing detective was persistent and his interrogation techniques were sometimes aggressive, these facts do not serve to render P.G.'s confession involuntary.

Third, although neither P.G.'s parents nor his attorney were present during his interrogation, these facts are not determinative. See State v. Dutchie, 969 P.2d 422, 429 (Utah 1998). Cf. Utah R. Juv. P. 26(e) ("A minor 14 years of age and older is presumed capable of intelligently comprehending and waiving the minor's right to counsel ... whether [or not] the minor's parent, guardian or custodian is present."). P.G. did not request to speak to his parents or an attorney prior to or during the interrogation. Instead, after the detective read P.G. his Miranda rights at the beginning of the interrogation, P.G. affirmatively stated that he understood his rights and agreed to speak to the detective. Accordingly, the absence of P.G.'s parents or an attorney during his interrogation does not undermine the juvenile court's finding that his confession was voluntary."

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Defendant not under arrest in his home even though his movements are monitored

In US v. Herron (February 2015) the US District Court, M.D. Florida, upheld the admissibility of the defendant's incriminating statements even though he had not been advised of his Miranda rights while being questioned in his home. From the court's opinion:

"Herron argues he was in custody when the police questioned him at his residence. Herron specifically asserts the police questioned him in an accusatory and sarcastic manner and in a police dominated atmosphere. Herron also asserts he was not freely permitted to walk throughout his home during the interview. After reviewing the arguments and evidence, however, the Magistrate Judge concluded Herron was not in custody at the time he made his statements.

Herron objects to this finding. Herron asserts the Magistrate Judge discounts the significance of the number of police officers that were at Herron's residence because only two or three officers interviewed him. Moreover, Herron asserts he was accompanied by police when he re-entered his residence and was restricted to certain areas. Herron also asserts the Magistrate Judge gave undue weight to the fact that Herron was not arrested at the end of the interview.

Upon consideration, the Court agrees with the Magistrate Judge's reasoning. The officer's accusation that Herron was lying to them, the presence of numerous officers at the scene of the search warrant, and the fact that Herron was unable to walk freely throughout his home while police executed the search warrant did not alter the voluntary interview so that it became a custodial interrogation. Brown, 441 F.3d at 1348-49 (finding even though officer accompanied defendant throughout home, since defendant was permitted to eat, smoke and the like, this weighed in favor of finding his interview was non-custodial); see generally United States v. Maldonado, 562 Fed.Appx. 859, 861 (11th Cir.2014) (encounter with several U.S. postal inspectors did not make the interview a custodial interrogation). Herron was in a familiar environment. Herron was able to smoke and drink during his interview. Brown, 441 F.3d at 1348-49. In addition, the police started the interview by advising Herron he could voluntarily participate in the interview. Herron was told that he was free to leave and that he was not under arrest. Id. at 1347 (noting defendant's understanding that he was not under arrest and was free to leave weighed in favor of finding a defendant was not in custody) (citing United States v. Brave Heart, 397 F.3d 1035, 1039 (8th Cir.2005)); see also United States v. Matcovich, 522 Fed.Appx. 850, 852 (11th Cir.2013) (finding similar facts as here did not render defendant's interview as a custodial arrest). Under the totality of the circumstances, the Court finds Herron participated freely and voluntarily in the interview, and that the circumstances did not rise to the level of creating a custodial interrogation."

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The propriety of utilizing a suspect's family member during an interrogation

In US v. Hufstetler (March 2015) the US Court of Appeals, First District, examined the issue whether the officers' references to the defendant's girlfriend during the interrogation were inappropriate and, if so, whether such statements overpowered his will. From the court's opinion:

"As he sees it, his interrogators immediately sensed his concern for Craig and then repeatedly referenced her incarceration in order to force his hand. It was only after the officers successfully convinced Hufstetler that Craig's freedom hinged on his willingness to talk, he says, that he finally confessed. He thus insists that the officers infringed upon his constitutional rights.

Over time, there have been several developments in the law applicable to addressing the propriety of utilizing a suspect's family member during an interrogation, as Hufstetler alleges occurred here. Admittedly, the applicability of the decision in any one case to another can be difficult given the fact-intensive nature of the totality-of-the-circumstances inquiry. As a body though, the cases do provide guideposts to aid us in determining whether police conduct in this context crosses the line. We thus begin by laying out a mosaic of cases on this topic before plotting Hufstetler's plea in that panoply of law.

One cluster of cases implies that the use of a family member uniquely tugs at a suspect's emotions and thus can have an undue impact. Particularly notable here are two Supreme Court decisions. The first, Lynumn, involved officers informing a defendant that her failure to cooperate would result in her losing financial aid for, and custody of, her children.... The Court noted that the defendant had no reason to question the officers' capacity to carry out those threats.... Accordingly, the court deemed the tactics improper and ordered the confession suppressed.

A few months later in Haynes v. Washington, 373 U.S. 503 (1963), the Court reiterated this point. There, interviewing officers repeatedly told a suspect that he would be unable to call or see his wife until he wrote out a confession.... Those threats occurred over a number of days and the defendant "gave in only after consistent denials of his requests to call his wife, and the conditioning of such outside contact upon his accession to police demands." .... The Court deemed this improper and, when weighed against the defendant's susceptibility to coercive tactics, found the confession to be involuntary.

Hufstetler points us to a number of cases from the Ninth Circuit which he believes best capture the import of those Supreme Court opinions. The first is United States v. Tingle, 658 F.2d 1332 (9th Cir.1981). In that case, the Ninth Circuit evaluated an interrogation in which the suspect was told that she had "a lot at stake" with respect to her child.... The court used the occasion to broadly state that it is impermissible to "deliberately prey upon the maternal instinct and inculcate fear in a mother that she will not see her child in order to elicit cooperation."

In 2011, that court restated this proposition in Brown v. Horell, 644 F.3d 969 (9th Cir.2011)--a case that Hufstetler largely clings to here. The Ninth Circuit reviewed an interrogation during which an officer noted that the suspect's ability to see or be with his child was entirely contingent on his cooperation with the police.... They "expressly conditioned [the suspect's] ability to be with his child on his compliance with her questioning." Id. Although the petitioner's ultimate claims were denied under relevant habeas standards, the court still classified such threats as coercive....

At a minimum, these cases illustrate that we must be on alert when an officer utilizes a family member as a tool during an interrogation. Nonetheless, cases from this circuit provide examples of situations where the discussion of a family member was deemed acceptable. The parties emphasize two.

The first is United States v. Jackson, 918 F.2d 236 (1st Cir.1990). There, a defendant was arrested for gun and drug offenses but only admitted to possessing the drugs. In an effort to entice the suspect to talk, the investigating officer informed him that his sister was under arrest for the gun violation, and thus his confession could assist her...... On appeal, Jackson argued that the use of the sister in that way was unduly coercive, but we concluded that the statement was neither a direct threat nor promise. .... Moreover, we found that "there [was] no evidence that an especially close relationship existed between Jackson and his sister, or that Jackson was unusually susceptible to psychological coercion on that account or any other." ... Accordingly, we affirmed the district court's decision that the confession was voluntary.

Recently, we reached a similar result in United States v. Jacques, 744 F.3d 804 (1st Cir.2014). In that case, interrogating officers remarked "on the failing health of Jacques's elderly father, suggesting that continued resistance might deprive Jacques of crucial years with his family."... . In response to an involuntariness challenge, we stated that "statements that a defendant's refusal to cooperate may lead to an extended separation from his or her loved ones may contribute to a finding that the defendant's confession was coerced ... [h]owever, the mere fact that a defendant is placed under some psychological pressure by agents does not necessarily render a confession involuntary."... We ultimately concluded that the subsequent confession was voluntary because there was only a single reference to the family member, the suspect's demeanor during the interrogation did not manifest any notable psychological or emotional anxiety, and there was no evidence that he was particularly susceptible to coercion.

Thus, while Lynumn and its progeny counsel us to be particularly cognizant of the risk of coercion when reviewing interrogations where officers invoke references to a family member, our cases also emphasize that discussion of a family member, on its own, is not per se coercive. Instead, we must closely examine the specific manner in which the officer discussed the relative and weigh such references against the defendant's susceptibility to coercion.

When evaluating the propriety of police tactics we consider "the totality of the circumstances," which may include the "length and nature of the questioning," the existence of any explicit or implicit threats, and any deprivation of a suspect's essential needs. ... A promise or threat need not be explicit, but can also result from "[s]ubtle psychological coercion ." ...

Hufstetler accuses the officers of making improper threats or promises. To flesh out this argument, he cites portions of the transcript which, in his view, show the officers conditioning Craig's release on his willingness to confess. Most notably, he quotes: "I certainly don't want to see those kids be without their mother;" "[T]here's obviously different outcomes for [Craig], depending on what it is in the details;" and, "[Y]ou can save her a buck by saying that you didn't tell her what you were gonna go do, but you're not doing that." He thus believes that the officers deliberately preyed on his emotions to force a confession from him.

After carefully reviewing the transcript and listening to the interrogation, we can discern no improper threat or promise. At the outset, we note that the officers had probable cause to hold Craig. In such a circumstance where the referenced relative is both a family member and a co-suspect, probable cause for holding that individual helps to place the officers' statements in context. Without more, an officer's truthful description of the family member's predicament is permissible since it merely constitutes an attempt to both accurately depict the situation to the suspect and to elicit more information about the family member's culpability.

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"[n]o arrest, no matter how lawful or objectively reasonable, gives an arresting officer or his fellow officers license to deliberately manufacture false evidence against an arrestee"

In Garnett v. Undercover Officer C0039 (April 2015) the US District Court, S.D. New York, ruled the following regarding the fabrication of evidence:

"A jury found Undercover Officer C0039 ("UC 39") liable for denial of the plaintiff's right to a fair trial. To do so, the jury found that the officer fabricated evidence. UC 39 argues here that so long as he had probable cause to arrest the plaintiff, he was free to fabricate additional evidence to support a conviction for the charged offense without incurring liability. He further argues that he was free to fabricate evidence without liability so long as the evidence that he fabricated was arguably not admissible as evidence.

These arguments are wrong as a matter of law. The Second Circuit Court of Appeals has clearly held that "[n]o arrest, no matter how lawful or objectively reasonable, gives an arresting officer or his fellow officers license to deliberately manufacture false evidence against an arrestee. To hold that police officers, having lawfully arrested a suspect, are then free to fabricate false confessions at will, would make a mockery of the notion that Americans enjoy the protection of due process of the law and fundamental justice."...

UC 39 is promoting a devolution of the law from this clear standard. The arguments that he presents profoundly weaken the protection of citizens against the fabrication of evidence by police officers. The arguments are cleverly constructed on the basis of a non-precedential summary order--selectively quoted and interpreted in an ahistorical manner. Still, they are wrong."

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Confession voluntariness - a case study

In State v. Cloutier (January 2015) the Supreme Court of New Hampshire carefully examined the issue of confession voluntariness. The defendant claimed that her confession should have been suppressed because she was threatened with harsher punishment if she did not confess; the length of the interrogation was coercive; she was advised that her refusal to confess could result in false accusations against her daughter; and, the officers were, at times, "insulting and used profanity," suggested that her "medication 'affected her intellect,' " and that she was " 'not a true friend of [the victim].' The Supreme Court upheld the admissibility of her incriminating statements.
From the court's opinion:

"... the defendant argues that Plourde's statement, "[I]f we leave here today, ... [w]e'll handle it like we handle ... like somebody who's done this many times," constituted " 'a threat of harsher punishment should [she] remain silent,' " and asserts that the remaining circumstances of the interview "did not mitigate the effect of this threat." She contends that Plourde's threat, in combination with certain other circumstances, "foreclosed any rational conclusion that her confession was voluntary beyond a reasonable doubt."
... As to the first factor, the defendant contends that the nature of Plourde's statement constituted a threat of harsher punishment should she not confess.

... to the extent Plourde's single statement constituted a threat, it was not a threat "to inform the prosecutor or the judge of" the defendant's refusal to cooperate. ... Nor did his statement convey "an unmistakable message that [the defendant] would be punished" if she remained silent and failed to admit her involvement in the crime.... Indeed, it is unclear what Plourde meant by this single statement. Nonetheless, even were we to assume that Plourde's statement constituted some sort of threat, our review of the video recording discloses no indication that this statement overbore the defendant's will or had any impact upon her conduct during the interview so as to render her confession involuntary.

Our review of the record reveals no other factor that undermines the trial court's finding of voluntariness. Although the defendant was at the police station for nearly six hours, an interview of this length, in and of itself, does not render a statement involuntary. See Belonga, 163 N.H. at 356, 42 A.3d 764 (holding that six *17 and one-half hour interview did not render confession involuntary). What is of paramount importance is what occurred during the interview.... Here, there was no evidence that the defendant "needed or was deprived of food, medical attention, or sleep."

Further, as the trial court found, the defendant's demeanor on the videotape is consistent with finding her statements voluntary. The trial court found that she "look[ed] relaxed" and "appeared lucid and self-possessed." She answered the officers' questions and made statements "in a normal conversational way," and did not appear "intimidated." Although at the end of the interview, the defendant began to "tear up and sob[ ]," this alone is not dispositive. As the trial court concluded, "the tears and the emotional disturbance" demonstrated "remorse," "not the sign of a person ... whose will has been broken." Absent overreaching, deception or coercion by the police, a defendant's emotional response to an interview does not render her confession involuntary.

The defendant also claims that the officers suggested that her refusal to confess could result in false accusations against her daughter. Under some circumstances a confession may be rendered involuntary because the police unreasonably exploit a person's compassion for a loved one.... For example, courts have held that a confession may be involuntary when police make threats to arrest a suspect's family members.... Here, however, the officers did not make such a threat. Rather, they merely questioned whether the defendant's daughter was involved after the defendant agreed that video surveillance would show her and her daughter "over there." Thus, this is not a case in which the police impermissibly used a defendant's compassion for a loved one to "extract a statement."

Finally, the defendant claims that the officers were, at times, "insulting and used profanity," suggested that her "medication 'affected her intellect,' " and that she was " 'not a true friend of [the victim].' " (Brackets omitted.) Although the officers were "not entirely friendly and sedate," .... the interview consisted mainly of questioning in a reasonable tone. To the extent the officers raised the defendant's use of medication, they did so as a possible reason for why they thought she may have taken the safe. Under the circumstances of the interview, the defendant could not have expected that her conversation with the officers would occur without any confrontation or intimation that she might be connected to the crime or questioning as to why she might be connected to the crime.

In this case, the evidence supports the trial court's conclusion that the defendant's statements were the product of a free and unconstrained choice..... Accordingly, we affirm the trial court's finding that the defendant's statements were voluntary.

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Prosecutor inserts false confession in police interrogation transcript

In People v. Velasco-Palacios (February 2015) the Court of Appeal, Fifth District, California, upheld the lower court's opinion that the prosecutor engaged in misconduct which was "outrageous and conscience shocking" by inserting a false confession into a transcript of the defendant's police interrogation. From the court's opinion:

"On July 9, 2013, defendant was charged with five counts of lewd and lascivious conduct with a child after the daughter of defendant's girlfriend reported several instances of molestation. Deputy public defender Ernest Hinman was assigned to defendant's case. During pretrial settlement talks, Hinman was informed by the prosecuting attorney, Robert Murray, that the People would be willing to accept a settlement offer for a prison term of eight years. Defendant was unwilling to make such an offer, but Hinman continued to attempt to persuade defendant to make a counteroffer and informed Murray that he believed the case would settle.

While Hinman was making these efforts, Murray told Hinman he was considering dismissing the charges against defendant and refiling the charges to allege penetrative acts, which carried a possible life sentence. Murray also informed Hinman that, if the charges were refiled, Murray would be unlikely to accept any plea offers from defendant. After reviewing the evidence, however, Murray was unable to find any evidence of penetration. On October 21, 2013, Murray concluded he could not find evidence to support the greater charges. That same day, Murray provided Hinman with an English language translation of defendant's police interrogation, which had been conducted in Spanish. The translation, however, contained two additional lines, added and fabricated by Murray, which read as follows:

"[DETECTIVE]: You're so guilty you child molester.

"[DEFENDANT]: I know. I'm just glad she's not pregnant like her mother."

Upon receiving the transcript, Hinman informed defendant it included an admission of penetration that could be used to file more serious charges against defendant. Defendant denied making the incriminating statements, and Hinman continued to advise him to make an offer to settle the case.

In the days following his conversation with defendant, Hinman sought to uncover why the incriminating lines were not present in the translation that had been prepared by his office. According to Hinman, the audio recording of the interrogation he received ended abruptly, and he was concerned the People's transcript had been prepared from a different, longer audio recording. Hinman was also concerned about raising the issue to Murray directly, as he did not wish to alert Murray to any incriminating statements Murray may have missed. On October 28, 2013, seven days after Murray provided the falsified transcript, the parties were in court for what was scheduled to be the first day of defendant's trial. Despite this appearance, Murray did not reveal the fabrication to Hinman. The trial was subsequently delayed until November 4, 2013.

On October 30, 2013, nine days after receiving the falsified transcript, Hinman e-mailed Murray to request "the exact CD reviewed by [the People's] transcriber/interpreter," but Murray did not respond to Hinman's request. Later that day, Hinman spoke to Murray in person about the e-mail, and Murray admitted to falsifying the transcript.

Here, the trial court found Murray deliberately altered an interrogation transcript to include a confession that could be used to justify charges carrying a life sentence, and he distributed it to defense counsel during a period of time when Murray knew defense counsel was trying to persuade defendant to settle the case. Further, Murray did not reveal the alterations until nine days later, and only then when he was directly confronted about the fabricated lines by defense counsel. This is egregious misconduct and, as is shown below, it directly interfered with defendant's attorney-client relationship. Because Murray clearly engaged in egregious misconduct that prejudiced defendant's constitutional right to counsel, the trial court was correct in finding Murray's actions were outrageous and conscience shocking in a constitutional sense."

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Failure to call expert witness to testify about false confessions was not basis for finding of ineffective counsel

In State v. Guzman (March 2015) the US District Court, D. Massachusetts, upheld the finding that failure to call a false confession expert to testify at trail was not an indication of ineffective counsel. From the court's opinion:

"The petitioner argues that it was ineffective of trial counsel not to inform the jury that false confessions are common....stating that "trial counsel made no effort to introduce expert testimony about false confessions. Equally troubling, trial counsel also did not seek to have the district court inform the jury--through either voir dire or jury instructions--that false confessions are a real phenomenon."

The Government counters that there is no case law supporting a per se finding of ineffectiveness for failing to inform or instruct on the phenomenon of false confessions, and that petitioner has failed to show that the outcome of the trial would have been different if he had adopted such a strategy.

Petitioner is correct that trial counsel did not bring in an expert or request a jury instruction on false confessions. However, in his closing argument, trial counsel did argue:

You bring your common experience and your knowledge of the world. You can't pick up the newspaper without reading about somebody who has confessed to something they haven't done and then they turn out to be cleared by DNA. Some people even come off of Death Row having confessed to a crime they didn't commit.

Despite the statement made during closing, petitioner argues that Guzman's November 2003 statement to the ATF agents was the "centerpiece" of the Government's case, and that it was ineffective not to offer expert testimony undermining the reliability of the confession or to request a jury instruction on the phenomenon of false confessions. Neither of these two failures, however, rise to the level of a Sixth Amendment claim. Although the petitioner cites to cases where courts have accepted the theory of false confessions, the petitioner neglects to offer evidence that an expert would have testified favorably in this instance. See generally, Tash v. Roden, 626 F.3d 15, 20 (1st Cir.2010) (court found that it was not ineffective for defense attorney to refrain from presenting testimony of expert given that proposed testimony about false confessions was based upon a theory that had not been established as reliable).

Furthermore, in the case cited by the petitioner, United States v. Jacques, 784 F.Supp.2d 59 (D.Mass.2011) the court affirmed the denial of expert testimony on the science of false confessions. The Jacques court did instruct the jury on the existence of false confessions, but the court excluded expert testimony because it did not meet Daubert standards. See also, United States v. Redlightning, 624 F.3d 1090, 1115 (9th Cir.2010) ("there was no reliable evidence in the record to support a theory of expert testimony that the interrogation techniques used raised a risk of false confession."), cert. denied, --- U.S. ----, 131 S.Ct. 2944, 180 L.Ed.2d 234 (2011); Commonwealth v. Robinson, 449 Mass. 1, 7, 864 N.E.2d 1186, 1190 (Mass.2007) (court properly excluded testimony of expert who would have testified on whether the police tactic used was likely to induce a false confession because the evidence fell "far" short of standards of admissibility); Commonwealth v. Hoose, 467 Mass. 395, 419-420, 5 N.E.3d 843, 863-64 (Mass.2014) (court's denial of expert testimony on false confession upheld, but Massachusetts Supreme Judicial Court acknowledged that phenomenon is a growing area of social science research and therefore didn't foreclose admission of such testimony in future cases).

While petitioner may have disagreed with trial counsel's strategy, it was not unreasonable or below the level of the profession to refrain from providing such evidence. Additionally, petitioner has failed to show that the outcome of the trial would have been different if an expert had testified or if a jury instruction had been given. He provides no evidence that an expert would have testified favorably on his behalf, or that such testimony would have even been allowed. Further, given the weight of the other evidence against the petitioner, it is inaccurate to say that the confession was the centerpiece of the Government's case. For the foregoing reasons I shall recommend that the petitioner's claim be denied.

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Statements inadmissible because the investigator advised defendant he would protect him from going to jail

In State v. Chulpayev (March 2015) the Supreme Court of Georgia upheld the lower court's ruling to suppress the defendant's statements because the investigator repeatedly indicated that he would protect the defendant from going to jail. From the court's opinion:

"... Chulpayev testified at the suppression hearing that Agent Jackson repeatedly indicated that he would protect Chulpayev from going to jail, and from a murder charge in particular, and the trial court credited that testimony.... Specifically, before the July 2012 interview, the FBI agent told Chulpayev that he would "keep the murder warrant off" if Chulpayev talked to him. The other law enforcement officers involved in the interview testified that Chulpayev was treated as a confidential informant in the murder case, and the recording of the interview ends with Agent Jackson telling Chulpayev that one of the things the agent cared most about was "keep [ing] [Chulpayev] out of jail." Similarly, before the October 2012 interview, Agent Jackson told Chulpayev, "I'm the lead on the case, and as much as you do for me, ... I will make sure nothing happens to you.... I got you. Just come and do what I'm asking you to do"--and what the agent was asking Chulpayev to do was agree to be interviewed by the SSPD detectives. Agent Jackson's representations that he was the leader of the murder investigation and that Chulpayev would not be in any trouble if he spoke to the SSPD officers were supported by Detective Williams during the interview. Chulpayev testified that, after these promises by the then-lead investigator on the case, he gave the July and October 2012 interviews so that Agent Jackson could protect him.

Accordingly, the record supports the conclusion that Chulpayev's statements during the first two interviews were induced by promises related to the potential criminal charges he faced, and the trial court did not err in suppressing those statements."

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Court admits the confession the defendant made to the victim's mother in a child abuse case

In State v. Sanders (November 2014) the Supreme Court of Tennessee upheld the lower court's decision to admit the confession the defendant made to the victim's mother in a child abuse case. From the court's opinion:

"This appeal concerns the admissibility of incriminating statements made by a defendant to the mother of a sexually abused child while the mother was secretly cooperating with the police in their investigation of the abuse. After a grand jury indicted him on six counts of aggravated sexual battery and four counts of rape of a child, the defendant moved to suppress his recorded statements. The trial court denied the motion to suppress, and a jury convicted the defendant of five counts of aggravated sexual battery and four counts of rape of a child. The trial court imposed an effective forty-year sentence. The Court of Criminal Appeals affirmed the convictions and sentence.... We granted the defendant's application to address the legal standard courts should use to determine the admissibility of incriminating statements obtained by the parent of a victim of sexual abuse who is secretly cooperating with law enforcement officials investigating the child abuse charges. We find no violation of the defendant's constitutional right against compelled self-incrimination because the defendant merely misplaced his trust in a confidante to whom he voluntarily confessed. Therefore, we find that the recording of these statements was admissible."

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Value of video to help determine if schizophrenia caused "unknowing or involuntary" responses

In State v. Woods (May 2015) the Supreme Court of Kansas upheld the lower court's decision that the defendant's confession was voluntary. From the court's opinion:

"This court considers a nonexclusive list of factors when determining if a confession is voluntary under the totality of the circumstances, including: (1) the defendant's mental condition; (2) the manner and duration of the interrogation; (3) the defendant's ability to communicate with the outside world; (4) the defendant's age, intellect, and background; (5) the fairness of the officers in conducting the interrogation; and (6) the defendant's proficiency with the English language... "Any one factor or a combination of factors " 'may inevitably lead to a conclusion that under the totality of circumstances a suspect's will was overborne and the confession was not therefore a free and voluntary act." [Citations omitted.]'.

Woods focuses on his mental condition and intellect. And in a related argument, Woods appears to claim that he wrongly believed he had to speak with police to get information about his wife and kids. But Woods again overstates the facts regarding his mental illness. The COMCARE competency evaluation noted Woods had been previously diagnosed with schizophrenia but concluded he was not psychotic when the evaluation was made. This evaluation, of course, occurred after the police interview; but the unredacted video, which the district court reviewed prior to ruling on the suppression motion, supports the conclusion that Woods easily understood the questions posed and answered appropriately. In short, there is no evidence Woods' responses were unknowing or involuntary because he was suffering from schizophrenia.

Regarding Woods' intelligence, there is conflicting evidence whether Woods completed high school. He told the detective he had graduated from high school, but the competency evaluation reported he had dropped out of school when he was 15 years old. The evaluation indicates Woods' IQ fell in the mild mental retardation range, and it is apparent from the video that Woods wanted to speak with detectives because he was hoping to learn something about his wife and kids. In this regard, he made several statements indicating he wanted information both before and after the interviewing detective explicitly told him the interview's purpose was to get Woods' story, not to provide Woods with information. Woods appeared to continue harboring this belief even after the detective explicitly disavowed it.

But even if we assume Woods' low intelligence caused him to believe he was required to speak with the detective to learn about his wife's condition, this would be insufficient to render the confession involuntary without more..... Woods must show he was coerced into confession.... And here there is no evidence of coercion or inducement. In fact, the detective explicitly told Woods the officers were not there to give information.

We hold that under the totality of the circumstances, the district court did not err by determining the confession was voluntary."

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"I just as soon wait until I get a public defendant or whatever" ruled an unequivocal invocation of request for an attorney

In McKinney v. Hoffner (March 2015) the US District Court, E.D. Michigan, ruled that the defendant's statement to the investigator, ""I just as soon wait until I get a public defendant or whatever." was an unequivocal invocation of his right to an attorney and all subsequent questioning should have stopped. From the court's opinion:

"The Court grants petitioner a writ of habeas corpus, because the police violated his constitutional rights by obtaining his confession from him after he had clearly and unequivocally invoked his right to counsel.

A prosecutor may not use a defendant's statements which stem from custodial interrogation unless the prosecutor can demonstrate the use of procedural safeguards which are effective to secure a defendant's privilege against self-incrimination....

When an accused invokes his right to counsel during custodial interrogation, that interrogation must cease until counsel is made available, unless the accused initiates further conversation with the police.....

However, the "[i]nvocation of the Miranda right to counsel 'requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney.'... The suspect's statement "must unambiguously request counsel." ... A criminal suspect therefore must "articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney."

Petitioner clearly and unequivocally invoked his right to counsel when he stated "I just as soon wait until I get a public defendant or whatever.".... the Sixth Circuit held that a habeas petitioner's statement "I'd just soon as have a attorney" amounted to an unequivocal and unambiguous request for counsel and that any further police questioning should have stopped.

The Michigan Supreme Court unreasonably concluded that petitioner's request for counsel was equivocal because after indicating that he'd "just as soon wait" until he had an attorney before talking to the police, petitioner immediately stated that he was willing to discuss the "circumstances" with the police. The Michigan Supreme Court, however, unreasonably ignored the fact that petitioner made this second statement only after the detective responded to his unequivocal request for counsel by stating "Well that's fine, but like I said ...". "Under Miranda and Edwards ... an accused's postrequest responses to further interrogation may not be used to cast doubt on the clarity of his [or her] initial request for counsel."... The fact that petitioner continued to answer questions after unambiguously and unequivocally requesting the assistance of counsel "may not be used to cast retrospective doubt on the clarity of the initial request itself."

Petitioner clearly and unambiguously invoked his right to counsel when he stated that "I just as soon wait until I get a public defendant or whatever." At that point, the officer should have ceased questioning petitioner. Detective Hodshire's subsequent remarks to petitioner were an inappropriate effort at pressuring petitioner to make an incriminating statement, rather than an appropriate attempt to get petitioner to clarify whether he wished to invoke his right to counsel.... The detective's continued interrogation of petitioner after he unequivocally asked for counsel amounted to an inappropriate attempt to pressure him and thus violated his Miranda rights."

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Intoxication (methamphetamine ice, cocaine and beer) did not render incriminating statements inadmissible: value of video

In US v. Hernandez (May 2015) the US Court of Appeals, Sixth Circuit, upheld the admissibility of the defendant's incriminating statements, even though he claimed that he had smoked methamphetamine ice, snorted cocaine and consumed a 24-pack of beer before he was questioned. From the court's opinion:

"The March 13, 2013, interview was video recorded, and the recording of Hernandez's interview was played for the district court. ... The district court announced its decision in open court, stating, The 13th, according to Mr. Thomas [the investigator], and according to the recording here, the videotape, that Mr. Hernandez was advised of his Miranda warnings. That he did, in fact, sign and acknowledge a waiver of his rights.

Mr. Thomas further stated that Mr. Hernandez appeared to be able to know what was going on. He was calm and collected, able to respond. In my opinion, based upon my review of the tape, it did not appear that Mr. Hernandez was fidgety or in any way unable to answer the questions or understand the questions. He never said, huh or what, or I don't understand, or let me stop. He answered the questions about his telephone. In fact, he refused to give the officer the code to his telephone. I think he mentioned it later. The questions that were asked of him about his bringing the drugs or having drugs didn't appear to be at any time to be uncertain or unable to answer the questions.

Mr. Hernandez does state that he had taken both ice and cocaine and alcohol all on that evening before they came, before the officers came into the room. In fact, according to his testimony, he had been on it for about 30 days. Which in that time period you would have imagined that Mr. Hernandez could not have even been able to do anything if he would have been in that shape. However, he was able to obtain a room. He moved his belongings from one room to the other, or somebody did. He came into the room and apparently was quite lucid about what he recalled from the evening before.

So as Mr. Thomas indicated, a lot of what his impact upon somebody's ability to function, even under the influence, is how long they've been doing it, the strength, things of that nature. And obviously, Mr. Hernandez apparently was someone who was a frequent drug user, very frequent drug user, and could-obviously, was able to conduct his affairs and his business during that period of time even when he was under the influence.
So based upon what I've seen both in the statements--excuse me, in the video tape, the communication between Mr. Thomas and Mr. Hernandez, the court finds that Mr. Thomas--I mean, Mr. Hernandez was lucid, was able to communicate, and that his statements given to Mr. Thomas on that evening were voluntarily given following his signature on the Miranda warning rights waiver, and I find that they were voluntary, and his consent was voluntary as well.

Hernandez argues that the district court erred when it permitted the use at trial of statements that he made during his interview with law enforcement agents after he had been advised of his Miranda rights and signed a waiver of those rights on the morning of March 13, 2013. He maintains that his waiver and his statements could not have been made knowingly, intelligently, and voluntarily because he was so heavily intoxicated as the result of heavy drug and alcohol consumption on the evening of his arrest, more than twelve hours before the interviews were made. He intimates that Agent Thomas coerced him, taking advantage of his intoxicated state. We conclude that the district court did not err when it denied Hernandez's motion in limine and permitted the statements to be used at trial.

The district court viewed the video recording of the interview and observed that Hernandez was neither "fidgety" nor unable to understand or answer questions posed to him by law enforcement agents and that he did not appear uncertain during the course of the interview. Having observed Hernandez's testimony and having heard all of the evidence, the district court's conclusion that Hernandez's function was not as impacted by his use of drugs and alcohol as he claimed was properly supported by the evidence available."

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Lying to a suspect and "playing on his emotions" does not render the confession inadmissible

In State v. Pellikan (April 2015) the Court of Appeals of Ohio, Fifth District, upheld the lower court's decision to admit the incriminating statements by the defendant that he sexually touched his eight-year-old cousin (KM) in the vaginal area. The defendant claimed that his statements were coerced and should have been suppressed. From the Court of Appeals opinion:

"In deciding whether a defendant's confession is involuntarily induced, the court should consider the totality of the circumstances, including the age, mentality, and prior criminal experience of the accused; the length, intensity, and frequency of interrogation; the existence of physical deprivation or mistreatment; and the existence of threat or inducement." As noted by the Ohio Supreme Court in State v. Osie, 140 Ohio St.3d 131, 2014-Ohio-2966, 16 N.E.3d 588 at paragraph 93:
Nevertheless, "the use of an inherently coercive tactic by police is a prerequisite to a finding of involuntariness..... Consequently, unless a coercive tactic was used, we need not assess the totality of the circumstances.

Appellant does not allege that he was subjected to physical abuse, threats, or deprivation of food, medical treatment or sleep. Nor does he allege that he was yelled at during the two interviews. Rather, appellant alleges that his confession was involuntary because Detective Grizzard lied to him and played on his emotions.

Appellant, who was nineteen years old at the time, was interviewed two separate times. The first interview was for 45 minutes and the second was for 25 minutes. Both were recorded.... Appellant, in support of his argument that his confession was coerced, notes that at the suppression hearing, Detective Grizzard admitted that he told appellant that KM loved him and that his family was on his side, forgave him and wanted to help him. Detective Grizzard further admitted that he told appellant that the investigation showed that he did it and could get a second chance if he admitted that he had touched KM. Appellant also argues that, at the suppression hearing, the Detective admitting to playing on his emotions and love for the victim by asking him if he would "do anything" to prevent her from having to go through the process. Detective Grizzard, at the hearing, admitted that he told appellant that KM said that she was "willing to get over it" when, in fact, she had not... Detective Grizzard also admitted that he "played hard on this let's save [KM] ."

At the suppression hearing, Detective Grizzard was questioned about the second interview. He testified that he brought appellant in for a second interview because he did not believe that appellant had told him everything that had happened. When asked, he admitted telling appellant that he thought that appellant was scared and frightened the day before and that things had gone too fast. Appellant argues that at the second interview, the Detective continued playing on his emotions and love for the victim. He also notes that after appellant said that he was done talking, Detective Grizzard told appellant that he was not. At the suppression hearing, on redirect, Detective Grizzard testified that when he said no to appellant, he was not telling appellant that he was not free to leave and that, in fact, appellant left a few minutes later. Detective Grizzard clarified that after appellant said that he was done talking because he believed that they had all of the information they needed, he told appellant that he was not because they needed more information. Appellant then continued talking to Detective Grizzard.

We find that the record does not demonstrate that appellant's statements to Detective Grizzard were coerced and involuntarily made. While appellant argues that he was a 19 year old who had not been read his rights or interrogated before, he had been informed of his Miranda rights, he had indicated that he comprehended those rights, and he had expressly waived those rights. The two interviews were not lengthy or intense and no deprivation or threats occurred. At the end of the first interview, appellant went home and then agreed to come back the next day. At the beginning of the second interview, appellant told Detective Grizzard that he felt better after admitting what he had done was wrong. He had asked Detective Grizzard to pick him up for the second interview and then left after such interview.

Considering the totality of the circumstances surrounding appellant's statements to Detective Grizzard, we find that appellant's statements were voluntary and not coerced."

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