Legal Updates Spring 2017
Promise suspect would not be put on the sex offenders’ list rendered his confession involuntary
In State v. Hunt (November 2016) the Supreme Judicial Court of Maine held that defendant's incriminating statements to police about sexual contact with the victim were not voluntary and should have been suppressed at trial. From the court’s opinion:
We have discussed the effect “promises or inducements” may have on the voluntariness of a confession in a variety of cases, recognizing that not all statements made by law enforcement officers are improper. For example, we have noted that neither “generalized and vague” suggestions that telling the truth will be helpful to a defendant in the long run, … nor “[m]ere admonitions or exhortations to tell the truth,”… will factor significantly into the totality of the circumstances analysis.
Thus, in a host of cases, we have held that certain representations by law enforcement officers did not constitute improper promises of leniency…. (officer “suggest [ed] that the State would get [the defendant] help” if he confessed);… (officer suggested that the defendant would get alcohol counseling if he confessed); … (officer told the defendant that “the more cooperative you are, the better things are for you” (alteration omitted)); … (officer stated “that it would ‘look better’ for [the defendant] to confess”);… (officer stated that “ ‘it would be better to tell us [the truth],’ that ‘it would make [the defendant] feel better,’ and that ‘people would think more of him if he got it off his chest’ ” (first alteration in original)).
We have found officers' statements to defendants to be problematic when those statements involve false promises of leniency or misrepresentations about legal rights, however.
Hunt contends that his incriminating statements were involuntary because the detectives improperly induced his confession by their assurances that if he confessed to sexual contact with the victim, he would not have to register as a sex offender. He also argues that the statement he made after the first detective asked why he did not confess earlier in the interview—“Like [the second detective] said, that I'm not even close to being on that list”—demonstrates that those false promises of leniency motivated his decision to confess. We agree and, considering the totality of the relevant circumstances, we conclude that the court erred when it determined that Hunt's confession was made voluntarily.
Click here for the complete decision.
The statement “You can say the truth, explain what happened and they can work with you when the time comes to go see a judge. It will be less charges.” was not a promise of leniency
In State v. Leiva-Perez (December 2016) the Court of Appeals of Utah upheld the admissibility of the defendant’s incriminating statements. From the court’s opinion:
The trial court denied the motion to suppress. In concluding that Leiva-Perez's confession was not coerced, the trial court found that …. the interrogation lasted under two hours, that the officers “were not particularly persistent and the tone of the interview ... was not unduly harsh,” and that their “efforts to disabuse [Leiva-Perez] of his truthfulness [were] not excessive.” It found that the officers “did not employ excessive attempts at deception [and] although there was some effort to use the false friend technique, the effectiveness of that device seemed to be mooted by the language barrier and by [Leiva-Perez's] personal view on police in general.” Finally, the trial court found that Leiva-Perez showed “no evidence of any mental or emotional problems ... [or] of a learning disability, except his demonstrably deficient public education of two or three years.”
“[A] police officer's exhortations to tell the truth or assertions that a suspect is lying do not automatically render a resulting confession involuntary.” … “[W]e think it eminently reasonable that police officers challenge criminal suspects' questionable explanations in their pursuit of the truth and their efforts to solve crimes.”
In employing the false-friend technique, “officials ‘represent [ ] to [a defendant] that they [are] his friends and that they [are] acting in his best interest.’ ”… “[S]tanding alone,” the false-friend technique is not “sufficiently coercive to produce an involuntary confession.” … “The significance of the stratagem comes in relation to other tactics and factors.” The false-friend technique may be coercive if a defendant has “below-average cognitive abilities” or other cognitive disabilities….
Here, the officers' statements fell short of “strong suggestions that [Leiva-Perez] might not face a particular charge or punishment if he confessed.” … However, without referencing specific charges, police did tell Leiva-Perez that if he did not tell the truth “the penalty” and “punishment” would “be worse.” The officers also stated that “there is a difference in the law, it is understandable when someone comes forth and stands tall for the mistakes they've made, versus someone who doesn't.”
Though troublesome, these statements do not rise to the level of the threats made in Rettenberger. We thus agree with the trial court that “there is no evidence that the defendant's will was overcome.”
Click here for the complete decision.
Promise of leniency coupled with threat to defendant’s wife resulted in a coerced confession
In State v. Hogeland (April 2017) the Court of Appeals of Oregon ruled that in a shaken baby case the trial court erred in admitting defendant's admissions, because they were induced by promises or “made under the influence of fear produced by threats.” From the Court of Appeals decision:
McGarvey [investigator] pressed defendant to explain why he had injured his son, specifically asking whether defendant had “set out to kill” his child or, instead, “accidentally shook his kid too hard.”
…. McGarvey added that defendant needed to tell him “the honest truth was it an accident, or was it on purpose, because if it's on purpose, I'll tell you right now, that is bad. That's something I need to strongly look into [a]nd you will not only have the chance of having your baby taken out of your life forever, but you will also be looking at a long time.” (Emphases added.)
McGarvey elaborated, telling defendant that he needed to know if “an accident has happened. A person has made a bad choice. Do we convict this person and make them a huge [example] for the world to see? No. We make sure this person has help.” (Emphases added.) As further encouragement, McGarvey made up a story for defendant, claiming that he himself had once picked up his son “out of anger and my wife caught me. I had anger issues. I went to anger management.”
McGarvey reasoned with defendant that, if he had not caused the injuries to his son, then his wife must have caused them, because she was the only other person who had recently cared for their child. Jenkins echoed that theme, stating, “[I]f you didn't shake your son, then it possibly may be your wife * * *. I cannot leave [your child] with [your wife] if I don't know who did th[is] to him, so I'm going to have to put him in stranger foster care.”
In response, defendant asked, “So I have to say that I did something to save my wife?” McGarvey replied, “No. I don't want you to do that either, because now you're going to set it up saying that you were coerced into this.” He added, “I don't want you to sit here and lie. I don't want you to [fall on your sword]. If your wife did this, I want you to tell me, ‘My wife did this and I'm trying to cover up for her because I don't want her getting in trouble.’ ”
An hour or so into the interview, defendant acknowledged that he had, in fact, shaken his son and that he “need[ed] help.” McGarvey formally arrested defendant, placing him in handcuffs and again advising him of his Miranda rights. McGarvey then led defendant into a larger room and brought in his mother. As soon as his mother entered the room, defendant apologized and told her, “I got scared. I was frustrated and I shook the baby. I didn't mean to do this.”
Defendant's arguments on appeal largely reprise those that he made to the trial court. Defendant contends that (1) McGarvey's questions suggested a false distinction between defendant intentionally injuring his son by shaking him and accidentally injuring his son by shaking him, both of which were crimes; (2) McGarvey implicitly promised defendant leniency in exchange for an admission when he suggested that, if defendant had injured his son accidentally, defendant would receive treatment; and (3) McGarvey and Jenkins expressly threatened adverse consequences for defendant's wife and son if he maintained his innocence.
In this case, defendant does not suggest that McGarvey expressly promised him immunity from prosecution in exchange for a confession. Instead, defendant contends that McGarvey's interrogation tactics conveyed an implicit promise that he would receive treatment rather than punishment if he admitted to hurting his son. We agree.
During the interrogation, McGarvey contrasted two potential outcomes that, collectively, conveyed a strong impression that defendant would not face prosecution if he acknowledged that he had shaken his son. McGarvey's questioning suggested that the outcome of the investigation was largely in defendant's control and, as noted, depended on whether defendant had “set out to kill” his son or merely “accidentally shook
his kid too hard.” If the former—a purposeful act—then “that [would be] bad,” and defendant would be “looking at a long time” and face losing his child forever. But if the latter—a mere accident—then, McGarvey implied, the repercussions would be far less severe. In fact, when posing the hypothetical situation of an accident resulting from a person's “bad choice,” McGarvey expressly told defendant that such a person would not be convicted but would, instead, get “help” from the state. And, in an apparent effort to emphasize the benefit of taking the “accident” route, McGarvey told defendant that he himself had once mistreated his own son, and yet he had not suffered adverse consequences. In McGarvey's fictitious story, he had been caught handling his child in anger, he had admitted a need for help, and, following—or perhaps during—appropriate treatment, he went on to raise his son. In sharing that tale, McGarvey necessarily conveyed the impression that that things would be much better for defendant if he admitted a need for help and accepted treatment.
…… Furthermore, for closely related reasons, the quid pro quo underlying McGarvey's questions and statements—admit to what you have done and things will go better for you—would likely have been apparent to any person in defendant's position. That is, by explicitly tying treatment to an acknowledged need for help, McGarvey signaled to defendant that the possibility of receiving treatment and avoiding severe consequences depended wholly on his willingness to admit that he had accidentally injured his son.
McGarvey told defendant that, if he made such an admission, he could “start the healing process,” but that, if he denied responsibility altogether, no one would believe him. Taken together, those statements necessarily conveyed to defendant that he might avoid incarceration, but only if he made an admission….. In that context, the quid pro quo inherent in McGarvey's proposal was clear.
We turn next to defendant's contention that McGarvey and Jenkins threatened his wife and his child and that those threats, like McGarvey's promises, induced his confession. As defendant notes, we have previously held that threats against a person's family can rise to the level of inducement… McGarvey told defendant that, if he would not admit to injuring his child, his wife would become a target of the investigation and “probably lose her job” as a result. And, by telling defendant that his wife would go to trial with him, McGarvey conveyed the message that, if the state could not establish that defendant had caused his child's injuries, his wife would face the blame.
In light of those circumstances—and in the absence of any countervailing circumstances identified by the state or apparent from the record—we conclude that defendant's statements were not voluntary. That is, by implicitly promising defendant leniency, while simultaneously exploiting his vulnerabilities as a husband and a father, McGarvey and Jenkins critically impaired defendant's capacity for self determination, such that his admissions cannot be considered “the product of an essentially free, unconstrained, and informed choice.
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The statement, “I feel like I should have an attorney” was not an unequivocal request for an attorney
In Hudson v. Ryan (September 2016) the US District Court, D. Arizona, upheld the lower court’s decision not to suppress the defendant’s incriminating statements, rejecting the defendant’s claim that his statement, “I feel like I should have an attorney” was an unequivocal request for an attorney. From the District Court’s opinion:
…. Petitioner was indicted in the Maricopa County Superior Court for attempted second-degree murder, two counts of aggravated assault, unlawful imprisonment, assault, preventing the use of a telephone in an emergency, and two counts of disorderly conduct.
During a taped interview, Avondale Police Department Detective Heatherington read Petitioner his Miranda rights. Detective Heatherington asked:
Q: Are you willing to answer some questions for me?
A: Some, yeah.
A: I feel like I should have an attorney.
After a pause, Detective Heatherington continued the interview and asked, “what happened this morning?” Petitioner then confessed.
To invoke the Miranda right to counsel, “at a minimum,” a suspect must make “some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney.”…. But if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, [Supreme Court] precedents do not require the cessation of questioning.” … “Rather, the suspect must unambiguously request counsel.” A suspect “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. If the statement fails to meet the requisite level of clarity, Edwards does not require that the officers stop questioning the suspect,…. the Supreme Court reiterated that a suspect must invoke his Miranda right to counsel “unambiguously… The Court clarified that “[i]f an accused makes a statement concerning the right to counsel that is ambiguous or equivocal, or makes no statement, the police are not required to end the interrogation, or ask questions to clarify whether the accused wants to invoke his or her Miranda rights.”
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Court finds investigators’ behavior “shocking to the conscience”
In Outlaw v. City of Cahokia (April 2017) the US District Court, S.D. Illinois, found that the behavior of the investigators during the interrogation of Outlaw was “shocking to the conscience.” From the District Court’s opinion:
In March 2015, Outlaw was a 19-year-old man with an IQ of 55 and the intellectual functioning of a nine-year-old. Witnesses directly or indirectly identified him as the perpetrator of a robbery along with his brother, although Outlaw did not actually commit the robbery. A few days later, on March 17, 2015, law enforcement officers went to Outlaw's home, arrested him and took him to the Cahokia Police Station for questioning. They did not allow his mother to accompany him.
At the station, Jones and Mason conducted the custodial interrogation. It was clear from the beginning of the interview that Outlaw had mental handicaps. When Jones and Mason asked Outlaw to read a sign out loud, Outlaw began sounding out the words, but could not read the word “monitored.” Outlaw told the officers, “I am slow in the head,” “I lose memory real fast,” and “Can you bring me to memory?” Jones and Mason took advantage of his intellectual deficiencies to intimidate, coerce or trick Outlaw into signing a waiver of his Miranda rights and falsely confessing to the robbery.
For example, at the beginning of the interview, Jones quickly read Outlaw his Miranda rights and obtained Outlaw's signature on a sheet indicating that he understood his rights, although he never asked Outlaw if he waived those rights and Outlaw never stated orally that he waived those rights. In fact, Outlaw did not have the mental ability to understand his Miranda rights.
Despite knowing of Outlaw's low cognitive level, Jones and Mason employed interview tactics designed for fully-functioning, capable adults such as, for example, falsely telling him others had given statements against him, playing on his emotions, threatening actions if he did not cooperate, minimized the severity of the crime to encourage a confession, and giving him details of the crime for him to recite as if they were true. Specifically:
- Jones told Outlaw (1) that his brother had already confessed to the robbery, had told the truth, and had implicated Outlaw, (2) that his girlfriend had denied Outlaw was with her at the time of the robbery, and (3) that his mother had made a statement against him concerning his handling of the gun. In fact, law enforcement had not interviewed Outlaw's brother, girlfriend or mother yet.
- Jones and Mason threatened to have federal authorities charge Outlaw with a crime for having his mother's gun in his room. They implied that Outlaw would not see his infant son grow up. They also threatened Outlaw by saying his mother would lose her Section 8 housing and end up in the street with all of his younger siblings if he did not admit to committing the armed robbery.
The Court believes Outlaw has alleged facts that plausibly suggest the interrogation conduct of Jones and Mason “shocked the conscience.” First, unlike the suspect in Cairel, Outlaw had a near rock-bottom IQ indicating an intellectual disability rather than simply a learning disability. On the other hand, intellectual disability is a broader disability characterized by “significant limitations both in intellectual functioning (reasoning, learning, problem solving) and in adaptive behavior, which covers a range of everyday social and practical skills.” There is a qualitative difference between rough interrogation of someone who has difficulty learning and someone who has significant and broad limitations in intellectual and behavioral functioning—indeed the intellectual functioning of a nine-year-old. Standard interrogation tactics used on a child could shock the conscience, and the same may be true for a profoundly intellectually disabled individual who is essentially a young child in an adult's body.
Additionally, the interrogation tactics used on Outlaw were more severe than those used on the Cairel suspect…. Here, the officers obtained Outlaw's waiver of his Miranda rights under circumstances where they must have known he did not understand them. They lied to him about what his friends and family said to law enforcement, preyed on Outlaw's concern for his mother and child, threatened to take actions they may not have been empowered to take, downplayed the serious consequences of the crime, and harassed him into telling the story as they wanted it told.
In sum, Outlaw's allegations plausibly suggest Jones and Mason knew of the depths of Outlaw's intellectual deficits, and that their use of standard interrogation tactics on him could be found shocking to the conscience.
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Ten hour questioning period was not coercive
In Woods v. Bradt (March 2017) the US District Court, W.D. New York rejected the defendant’s claim that his confession should have been suppressed at trial because
he was detained for an unnecessarily long period of time, and would have said “anything to stop all of the questions.” From the District Court’s opinion:
The Court finds that record fails to support Woods' claim that he was detained for an excessive period of time and would have said “anything to stop all of the questions.” The testimonial and documentary evidence indicates that Woods arrived at the police station just after 10:00 p.m., and he was left alone in an interview room until 5:20 a.m. At that time, two officers came into the room and read him his Miranda warnings, which he waived. The officers questioned Woods for an hour, during which time he denied any involvement in the robbery [of a grocery store during which 1 person was killed]. At about 6:15 a.m., the officers left the room, and returned shortly thereafter, informing Woods that they had reviewed the store's surveillance tape. At that Woods denied shooting anyone and asked for “time alone to think [about] it.”….. About an hour later, the officers returned and spoke with Woods, who stated that he would like to see the surveillance video himself. Woods watched the video, and then “immediately began to tell [them] that, in fact, he was there, and that he didn't kill the guy, that he was shooting in the air because he heard the one guy coming down the stairs as the robbery was going down.” ….. The officers began recording Woods' written statement at 8:20 a.m. Woods made corrections to the written statement and signed it at 8:36 a.m.
The Court recognizes that while the actual interview process, cumulatively, only spanned a few hours, the officers did wait more than seven hours overnight before beginning to interrogate Woods. As the Fourth Department, found there was “no indication in the record of the suppression hearing that [Woods] sought to end the interrogation or that his alleged lack of sleep left him ‘so ... fatigued that he was incapable of intelligently waiving his rights or comprehending the meaning of his statement[s].’
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Court upholds rejection of false confession expert as not relevant; also that second advisement of rights not necessary after a 6 hour gap between questioning
In People v. Jeremiah (February 2017) the Supreme Court, Appellate Division, Third Department, New York upheld the lower court’s decision to admit the defendant’s incriminating statements and the lower court’s rejection of false confession expert Allison Redlich. From the court’s opinion:
We agree with County Court that defendant knowingly and intelligently waived his Miranda rights during his subsequent interviews with police in Brooklyn and Binghamton…. [The defendant verbally agreed to waive his rights but did not want to sign the waiver form] They stated that the total interview lasted for about 45 minutes, that the Miranda discussion occupied the first 20 minutes of this time and that, despite defendant's interruptions, Woody was able to verbally outline all of the Miranda rights contained on the form, although not necessarily in the same order as they appeared on the document. The officers stated that they believed that defendant was able to read and understand the form because he took an appropriate amount of time examining it and because of his objection to a specific word in the text. His refusal to sign the form neither constitutes “an implicit invocation of his ... Miranda rights” nor precludes a finding that he waived them…
As for defendant's subsequent statements, “[w]here a person in police custody has been issued Miranda warnings and voluntarily and intelligently waives those rights, it is not necessary to repeat the warnings prior to subsequent questioning within a reasonable time thereafter, so long as the custody has remained continuous….. The police testimony established that they transported defendant to Binghamton immediately after the Brooklyn interview and that defendant slept through most of the six-hour trip. Immediately after their arrival in Binghamton at approximately 9:00 p.m., defendant was interrogated by Woody and another Binghamton detective in a video-recorded interview that lasted for approximately three hours. Woody did not reread the Miranda rights, but reminded defendant at the outset of the interview that the same rights applied that had been previously discussed, and stated that the form would not be presented to defendant again as he had not wished to sign it earlier. The other detective asked defendant, “You did see and hear your rights, right? You got to see that form? You understood it?” Defendant confirmed that he had. As the lapse of time between the Brooklyn and Binghamton interviews was not unreasonable and defendant had remained in continuous custody, suppression of the evening Binghamton interview was not required.
Next, County Court did not abuse its discretion in denying defendant's motion to present expert testimony on false confessions. In the motion—made only a few days before trial was then scheduled to commence — defendant sought to present the trial testimony of Allison Redlich, described as a nationally recognized expert in the field, “to educate the jury regarding the psychological dynamics involved in false confessions” (internal quotation marks omitted). In support of the application, defense counsel argued that the circumstances presented a “classic scenario” for a false confession in that defendant allegedly suffered from certain cognitive and intellectual deficits and was subjected to a lengthy interrogation in unfamiliar surroundings in which police allegedly lied and made promises and misrepresentations. Counsel asserted that Redlich would testify as to the impact of a defendant's diminished intelligence in the context of certain police interrogation techniques, specifically including the Reid interrogation technique, and would also discuss other issues during questioning, including “the use of various props, themes and alternatives.” Notably, defense counsel did not assert that any of these techniques, props or themes had been used here. Further, he did not assert that Redlich would offer any opinions regarding defendant's individual personality traits or the particular circumstances of his interrogation, other than to indicate that Redlich would not offer an opinion on the ultimate issue of whether defendant's statements were knowing, intelligent and voluntary.
…. we find that the required showing of relevancy was not made, and, thus, the motion was properly denied. As previously noted, defendant sought to have the expert give general testimony about the science of false confessions, but made no claim that defendant's individual circumstances would be addressed.
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The results of psychological tests (Gudjonsson Suggestibility Scale) do not square with reality
In US v. Norrie (March 2013) the US District Court, D. Vermont rejected the defense expert witness’ testimony about the defendant’s suggestibility when viewed against the recording of the defendant’s behavior during police questioning. From the court’s opinion:
Two measurements Dr. Willmuth [defense expert] performed are of particular relevance to the motion to suppress: (1) the Gudjonsson Suggestibility Scale, which is designed to measure Defendant's suggestibility and compliance; and (2) Thomas Grisso's Instruments for Assessing Understanding & Appreciation of Miranda Rights (the “Grisso test”), which is designed to assess Defendant's understanding and appreciation of his Miranda rights.
In her testimony, Dr. Willmuth echoed some of her observations in her report, noting that Defendant “felt frightened if not certainly very distressed, very anxious, if not terrified” during his interviews by law enforcement. Based upon these and other observations of Defendant, as well as upon her testing and medical and educational records review, Dr. Willmuth opined that:
In summary it is my opinion based on all of the information that I have available to me that Mr. Nome's confessions may well be false and that he likely does not fully understand his rights and situation as clearly as he appears to do so. It is also my opinion that it is likely that following proceedings in a courtroom would be problematic for him.
Dr. Willmuth testified that Defendant's verbal processing skills were so limited that he did not even understand what a “right” or “obligation” was and went so far as to claim Defendant “doesn't get any of it.” She further testified that in terms of suggestibility, there is no point at which Defendant will say he does not know an answer to a question. Instead, he will provide an answer whether or not he has the information sought. She opined that Defendant is virtually unable to read.
In determining what weight, if any, to give Dr. Willmuth's opinions, the court notes first and foremost that Dr. Willmuth's characterization of Defendant's conduct and demeanor in the face of law enforcement questioning is markedly different from the interviews themselves. Far from appearing terrified and confused, Defendant revealed almost no sign of emotional or mental distress, and, indeed, appeared relatively comfortable in the presence of law enforcement with whom he has had considerable experience. He did not speak with hesitation or obvious intellectual deficits, and his answers were largely responsive to the questions posed. Defendant appeared to have a normal range of vocabulary and read fluently, albeit slowly, and with apparent comprehension of the material read.
Throughout the interviews, Defendant challenged law enforcement's version of the events, persisting in his theory that a firearm could not be stolen if it was not reported stolen despite numerous attempts by law enforcement officers to convince him this fact was unimportant. He also stated first that his father, and later the entire family, had inherited the firearm and had done so at a time when Defendant did not have any felonies. Rather than telling law enforcement what they wanted to hear, these theories were intended to dispel the evidence of guilt against Defendant.
Indeed, Defendant used the interviews with law enforcement to extract information that was useful to him in assessing his criminal liability and in order to understand what might happen next. He freely questioned law enforcement and at one point told Agent Mostyn that he expected his questions to be answered. Although Defendant changed his version of the events frequently, he generally did so in order to dispel any suggestion of his own culpability and to deflect guilt upon another person. He expressed an ability and willingness to tell law enforcement that he had no helpful information to offer them. There is no evidence that Defendant accepted, adopted, or endorsed law enforcement's conclusions without first challenging them and testing the nature and weight of evidence against him. Finally, there is no evidence that, at any point, Defendant was confused regarding the numerous sets of Miranda warnings he received and the import of a waiver.
Because Dr. Willmuth's characterization of Defendant's behavior and intellectual deficits in the face of law enforcement questioning is demonstrably inconsistent with the interviews themselves, the court finds her opinions derived therefrom generally unreliable and unpersuasive.
Second, the court questions whether the tests administered by Dr. Willmuth are a reliable indicator of either Defendant's capacity to understand and waive his Miranda rights, or the voluntariness of his statements. Dr. Willmuth explained that the results of the Gudjonsson Suggestibility Scale indicated that Defendant “yielded” and “shifted” at a rate higher than most mentally retarded persons, who as a class, allegedly yield and shift at a greater rate than the rest of the population. Based on this information, Dr. Willmuth concluded that Defendant's “ability to sort of reason and certainly to understand anything that is complex or abstract is very limited.”
Defendant may have yielded and shifted at a significant rate during Dr. Willmuth's testing, but he did not do so in the actual interviews. To the contrary, Defendant consistently demonstrated an ability to disagree with law enforcement, to withhold information, to change his version of the events when confronted with inconsistencies or challenged regarding his truthfulness, and to provide details that generally incriminated others rather than incriminating Defendant. There is simply no evidence to support a conclusion that he rotely adopted or agreed to what law enforcement told him.
As for the Grisso test, Dr. Willmuth testified that Defendant's scores on that test placed him close to other adult offenders regarding vocabulary, but significantly below other adult offenders regarding his understanding of the function of Miranda rights. As an initial matter, Dr. Willmuth appears to lack sufficient experience with respect to the Grisso test to testify as an expert regarding its results. It is also concerning that this allegedly critical test was administered for the first time during a hiatus in the court's evidentiary hearing. The reliability of the Grisso test suffers further from its administration over a year after Defendant executed the Miranda waivers.
Even when properly administered, courts have rejected the Grisso test as dispositive in determining whether a defendant knowingly waived his or her rights.
For the foregoing reasons, the court accords Dr. Willmuth's opinions scant weight in analyzing whether Defendant understood and knowingly and intelligently waived his Miranda rights and in analyzing whether Defendant's statements were voluntary.
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Court rejects testimony of false confession expert Dr. Richard Leo as “faux science”
In US v. Phillipos (February 2017) the US Court of Appeals, First Circuit upheld the lower court’s decision to reject the testimony of Dr. Rcihard Leo. From the court’s opinion:
In this case, the District Court considered competing analyses of the reliability of Dr. Leo's studies and found that there was “no indication that there is a body of reliable material that constitutes understanding in this area,” and that “it would introduce the jury ... to a kind of faux science to present Dr. Leo's testimony.” Whether or not we would reach the same conclusion, the record certainly shows that the one that the District Court reached is reasonable.
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A suspect does not have to be aware of all the crimes he will be questioned about to make a valid rights waiver
In Townsend v. Gilmore (September 2016) the US District Court, E.D. Pennsylvania
upheld the lower court’s decision to admit the defendant’s incriminating statements, even though the defendant did not know all of the crimes that he would be questioned about when he waived his Miranda rights. From the court’s opinion:
Also lacking in merit is Townsend's contention that his statement regarding Ortiz's murder should be suppressed because he had been arrested on drug charges. This argument appears to focus less on the voluntariness of Townsend's confession and more upon whether Townsend's Miranda waiver and subsequent statement should be considered valid. Under Miranda v. Arizona, any waiver of the Fifth Amendment privilege against self-incrimination must be knowing, voluntary and intelligent… A waiver is knowing and intelligent where it is “ ‘made with a full awareness both of the right being abandoned and the consequences of the decision to abandon it.’ ” …. For this reason, a suspect's awareness of all the crimes about which he or she may be questioned is not a relevant consideration in determining whether a waiver of his or her Fifth Amendment rights was voluntary… Thus, a failure of the officers to explicitly state that they would be questioning Townsend about the Ortiz murder would be irrelevant in determining the voluntariness of Townsend's waiver or confession…. The fact that Townsend was brought into the station on drug charges but was questioned regarding the homicide has no impact on the validity of his waiver of rights or the admissibility of his statements.
For these reasons, Townsend's arguments in support of his claim that his confession should have been suppressed are meritless and provide no basis for habeas relief.
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Court finds confession was coerced and involuntary
In State v. Eskew (February 2017) the Supreme Court of Montana reversed the lower court’s decision and found that the defendant’s confession was involuntary. From the court’s opinion:
On September 18, 2012, Eskew called 911 in Great Falls to report that her six-month-old daughter Brooklyn was unresponsive and not breathing. Paramedics arrived and found Brooklyn as her mother described, and took her to the hospital…. Brooklyn had a severe head injury with subdural bleeding on her left side. While a CT scan showed that her skull was fractured, medical personnel did not identify that fact until later. Medical personnel suspected child abuse and contacted law enforcement, telling responding officers that Brooklyn's injury resulted from shaking.
Shortly after Eskew arrived at the hospital in Great Falls, law enforcement officers talked to her about Brooklyn's condition. They took her to the police station, away from the hospital and from Brooklyn. They placed her alone in an interrogation room where she was upset and sobbing repeatedly that “I want my baby.”
After a considerable period of time, two Great Falls Police officers entered the interrogation room. They read Eskew a Miranda advisory and then gave her a printed copy. Eskew read and signed the Miranda advisory. The two officers assured Eskew that her daughter was being cared for and that as soon as they finished talking to her she would be reunited. They told her that they needed an accurate description of what had happened so that it could be passed on to the doctors. They told her that Brooklyn could not be adequately treated unless she answered their questions and that the sooner they finished the interview the sooner they could get her back to her daughter. “We'll get this over with and get you back up to your daughter, okay?” Officers told Eskew that she was the only one who could help Brooklyn, and that Eskew was “hurting” her daughter by not giving them the responses they expected about the injury to the baby.
Eskew often responded to repeated questions with only a few words, and many of her responses were transcribed as “inaudible.” Eskew told the officers how she found her daughter in distress and had tried to console her by rocking her. Eskew denied the officers' allegations that she shook Brooklyn, stating that she “didn't shake her or anything.” The officers told Eskew that they already knew what had happened and demanded that Eskew admit that her description of “rocking” Brooklyn to console her was actually “shaking.” Eskew repeatedly denied shaking Brooklyn.
The officers gave Eskew a doll to demonstrate how she rocked her daughter. Eskew did so, but the officers insisted that she do it differently and that she “make the doll's head rock!” The interrogation went on for about four hours. Ultimately Eskew relented and shook the doll for the officers and told them that she had shaken her daughter.
The State charged Eskew with deliberate homicide in the death of her daughter. Prior to trial Eskew moved to suppress the results of the interrogation, contending that her admissions were not voluntary. On December 2, 2013, the District Court held the hearing on the motion to suppress. The two Great Falls Police officers who conducted the interrogation testified, along with two experts proffered by the defense. The District Court heard that testimony and watched the video of the interrogation.
District Court found that the police officers deliberately lied to Eskew by telling her that the interview was necessary to get information to treat Brooklyn, by telling her that her responses to their questions could determine whether her daughter received the proper medical treatment, and by telling her that she would be reunited with her daughter as soon as the interrogation was over. The District Court found that the real purpose of the interview was to obtain admissions from Eskew that fit the officers' pre-determination that she had caused her daughter's injury by shaking her. The District Court found that Eskew did not understand that the officers were questioning her in order to charge her with a serious crime. The District Court denied the motion to suppress.
Based upon the evidence at the suppression hearing, the District Court found that Eskew was age twenty-one, a single mother with a six-month-old daughter and that she still lived with her parents. She was intelligent and articulate; a high school graduate; and an employee at JCPenney. She had obtained a two-year associate degree in education from MSU Great Falls.
The District Court found that before the interrogation began at the police station, an officer told Eskew that as soon as the interrogation finished she could return to the hospital and her daughter. As noted above, the District Court subsequently found that this was a misrepresentation of the true situation. For the next twenty minutes, Eskew was alone in the small windowless interview room where she “cried and sobbed” asking for her child. The District Court found that at the beginning of the interrogation an officer verbally advised Eskew of her Miranda rights and asked if she wanted to talk. Eskew assented verbally and physically, after which the officer gave her a written Miranda warning form that she “carefully and deliberately read” and “voluntarily signed.” Eskew continued to sob for the next hour or more, but gradually became more composed.
The District Court found that while the tone of the officers began as “soft spoken and passive,” it was later “aggressively confrontational and emphatic in challenging [Eskew's] veracity and in challenging the consistency of her statements.” The District Court found that the officers did not physically threaten Eskew, and that they did not “yell” at her but occasionally “emphatically raised their voices.” The District Court found:
Throughout the first one-third of the interview, one or both of the Detectives expressly or implicitly misrepresented to Ms. Eskew that the purpose of the interview, essentially, was to find out what happened in order to facilitate medical care for the child. In reality, the sole purpose of the interview, at that juncture, under the circumstances, was to facilitate a criminal investigation of the child's injuries with Ms. Eskew as the focus of that investigation on the information available to the officers at that time.
The District Court found that except for the officers' express misrepresentation that they intended to get Eskew back to her daughter and their “numerous” misrepresentations that the focus of the interrogation was to “facilitate medical care for the child,” the interviewing techniques used were “not unduly or unfairly coercive, deceptive or manipulative under the totality of the circumstances.” The District Court concluded that there was “no indication” that Eskew was not “tracking” or that she was being overwhelmed, coerced, or manipulated in the interrogation.
Based upon the totality of the circumstances, including the District Court's findings about the officers' lies to Eskew, we determine that the District Court erred by concluding that the interrogation was not unduly coercive or manipulative and by concluding that Eskew was “fully cognizant of her situation.” Those conclusions are contradicted by the District Court's express finding that the officers deliberately lied to Eskew about the purpose of the interrogation (that it was to get vital information to allow doctors to treat her gravely injured daughter). Eskew could not have possibly been “fully cognizant” of her situation because the officers conducting the interrogation lied to her about material elements of her situation.
Upon review of the recording, there is every indication that Eskew underwent the interrogation believing that she was providing information to assist the doctors in treating her daughter and believing that as soon as she provided the information that the officers wanted she would be returned to the hospital. This fundamental misunderstanding of what was happening was based upon lies that precluded Eskew from understanding the situation and the significance of her answers. Further, Eskew's demonstrations of rocking and then shaking her baby, and descriptions of her interactions with her, were manipulated and orchestrated by the officers to get the result that they wanted.
Under the totality of the circumstances it is clear to this Court that Eskew's responses to the interrogating officers were not voluntary. We accept the District Court's findings about the interrogating officers' credibility, conduct and intent that were based upon the officers' own testimony.
The District Court heard the officers' live testimony describing the event and determined that they purposely lied in order to manipulate and misrepresent the situation to Eskew.
However, we disagree with the District Court's conclusion from these facts that the interview, looking at the totality of the circumstances, was not unduly deceptive or manipulative. The officers told her lies, not about peripheral points, but about the fundamental nature of the proceeding; about her part in it; and about her part in her daughter's fight for life. Her responses were manipulated by the misrepresentations of the officers about the nature of the interrogation and the importance of her responses. Her responses at important junctures—such as whether she shook her daughter—were coerced by the officers' insistence that she provide responses that they wanted because the responses were vital to the proper medical care of her daughter. This purposeful manipulation broke down Eskew's ability to resist the officers' relentless pressure to tell them what they wanted to hear—that she shook her daughter.
In summary, based upon the District Court's findings of fact, the officers deliberately misrepresented the situation to Eskew, a young mother with a dying daughter. They imposed extreme psychological pressure on her to agree with their descriptions of what had happened. They told her that her refusal to admit to injuring her daughter was impeding medical treatment. They lied to her that she would be reunited with her daughter if she gave them the answers that they sought—that she shook Brooklyn and caused her injuries. When she relented and gave them what they wanted she was not reunited with her daughter, but was arrested. We conclude that upon consideration of the circumstances and the record, the State has not met its burden to show by a preponderance of the evidence that Eskew's admissions were voluntary.
Based upon our review of the record, we are firmly convinced that a mistake has been made. The District Court misapprehended the effect of the evidence and failed to apply prior established law concerning the effect of lies and psychological coercion on the issue of voluntariness of a confession. The District Court misapprehended the effect of its own findings of fact in the context of the clear law on involuntary confessions. An admissible confession cannot be the product of psychological coercion. This Court has repeatedly held that law enforcement officers may not use lies to obtain confessions or admissions for a criminal proceeding…. Confessions or admissions like the ones in this case, induced by deliberate psychological coercion, lies, and material misrepresentations to the suspect are not voluntary and should be excluded from evidence. Moreover, as the District Court recognized at sentencing, the use of the interrogation against Eskew was the foremost piece of evidence that led to her conviction.
We conclude that the District Court erred in denying the motion to suppress and in allowing the State to use the results of the interrogation against Eskew at trial. We reverse the conviction and remand for further proceedings consistent with this Opinion.
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The statement “I don't know, just, I'm done talking. I don't have nothing to talk about” was an unequivocal invocation of the right to remain silent
In Commonwealth v. Lukach (April 2017) the Superior Court of Pennsylvania upheld the lower court’s decision that the statement, “I don't know, just, I'm done talking. I don't have nothing to talk about” was an unequivocal invocation of the defendant’s right to remain silent. From the court’s opinion:
On August 7, 2015, Appellee was arrested on two outstanding summary offense warrants and brought to City Hall for questioning. Chief Wojciechowsky advised Appellee of his Miranda rights, and Appellee acknowledged he understood them. Chief Wojciechowsky questioned Appellee about his whereabouts on the night of the murder. At 1:25 p.m., Appellee informed Chief Wojciechowsky, “I don't know, just, I'm done talking. I don't have nothing to talk about.”
Instead of taking this as a request to end the conversation, Chief Wojciechowsky advised Appellee that he did not have to speak to police, stating, “You don't have to say anything, I told you that you could stop.” However, Chief Wojciechowsky continued to ask questions, told Appellee that he did not believe his story, and informed Appellee that police officers had collected evidence from the crime scene for processing. At 1:36 p.m., police officers confiscated Appellee's shoes. Chief Wojciechowsky continued to pepper Appellee with questions. The Appellee eventually made incriminating statements.
Hearings were held January 12, 2016, and January 13, 2016. Chief Wojciechowsky testified that he did not interpret Appellee's statements as an immediate invocation of the right to remain silent and wanted to “be absolutely certain that [Appellee] was still aware of that right.” … On April 5, 2016, the court issued an order granting Appellee's motion in part. The court suppressed statements made by Appellee following his assertion that he was done talking; Appellee's shoes and any evidence obtained from them; and the items recovered from the storm drain. The court admitted all statements made prior to Appellee's assertion that he was done talking and surveillance video from the ATM machine.
Here, there is no dispute that Appellee was advised of his Miranda rights at the outset of questioning. The question is whether or not his statement, “I don't know, just, I'm done talking. I don't have nothing to talk about” was a clear and unequivocal invocation of his right to remain silent, …. We hold, under the facts of the case, that it was.
The Commonwealth takes issue with every part of Appellee's statement, including the words, “I don't know,” “I'm done talking,” and “I don't have anything to talk about.”… The Commonwealth argues that the statement was not “clean and clear” and suggests that Appellee should have said solely “I don't want to talk to you.” … This suggests a bright line rule that does not take into account the surrounding circumstances of the case, nor the entire context of Appellee's statement. Although ineloquently phrased, Appellee's statements were not qualified. They were not ambiguous. They were not equivocal. In response to continued questioning, Appellee stated, “I don't know, just, I'm done talking. I don't have nothing to talk about.” … This was the sort of statement that would lead a reasonable police officer, in those circumstances, to understand the statement to be a request to remain silent.
We decline to adopt the rigid, bright line rule for invocation suggested by the Commonwealth. Accordingly, we conclude that Appellee invoked his right to remain silent and the suppression court did not err in finding that he had made a clear and unambiguous invocation.
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