Legal Updates Spring 2019
Court details acceptable interrogation statements
In State v. Brown, Jr. (June 2019) the Court of Appeals of Ohio, Fifth District upheld the defendant’s confession. On appeal the defendant had claimed that “he was coerced to confess because of statements that Detective George made during the interview.” Specifically, Brown argues that immediately after he claims he requested an attorney, Sergeant George states, “Listen, you want to know what you're going to be charged with? If you decide that you're going to stop right now and not talk to us, you're going to be charged with murder, right?” Brown submits, “Despite Mr. Brown's age or previous experience with the justice system, threatening to charge someone with murder, and indicating that he could avoid the charge by waiving his right to remain silent impairs his capacity for self-determination. From the Court’s opinion:
Admonitions to tell the truth are not coercive in nature. State v. Jones, 2nd Dist. Montgomery No. 26289, 2015–Ohio–4116, 43, 43 N.E.3d 833 N.E.3d 833, ¶ 19, citing State v. Porter, 178 Ohio App.3d 304, 2008–Ohio–4627, 897 N.E.2d 1149, ¶ 34 (2d Dist.); State v. Loza, 71 Ohio St.3d 61, 67, 641 N.E.2d 1082 (1994) ( “Admonitions to tell the truth are considered to be neither threats nor promises and are permissible.”); State v. Bradley, 3rd Dist. Logan No. 8–95–15, 1996 WL 697946 (Dec. 5, 1996) (“Repeated requests to tell the truth do not constitute coercion so as to invalidate a confession.”), citing State v. Wiles, 59 Ohio St.3d 71, 81, 571 N.E.2d 97 (1991); State v. Western, 2nd Dist. Montgomery No. 26058, 2015–Ohio–627, 29 N.E.3d 245 , ¶ 42 (“[a] police officer's assertion to the suspect that he or she is lying or that the suspect would not have another chance to tell his or her side of the story does not automatically render a confession involuntary”). Likewise, a police officer's statement to a suspect that a confession “will be helpful” or a police officer's offer to “help” the suspect if he confesses is “not improper” and does not “invalidate an otherwise legal confession.” Jones, 2015–Ohio–4116, ¶ 19, citing State v. Stringham, 2nd Dist. Miami No. 2002-CA-9, 2003–Ohio–1100,¶ 16 (officer's attempt to “downplay the seriousness of the offense, by explaining that the situation might not be as bad as [defendant] thought” and statements that “the situation was not going away” and that defendant should tell the truth and “ ‘help’ himself out of a bad situation” did not cause defendant's free will to be overborne or otherwise result in a coerced confession); State v. Simms, 10th Dist. Franklin No. 10AP–1063, 2012–Ohio–2321, ¶ 59 (where detectives “encourage[d] honesty, stating it could help [defendant],” detectives' actions “did not rise to the level of coercion”); see also State v. Fouts, 4th Dist. Washington No. 15CA25, 2016–Ohio–1104, ¶ 38–41 (concluding that there was nothing “improper” in officer's attempt to “create a favorable environment for a confession” by minimizing the offense as a “mistake” and the defendant's behavior as “iffy”; nothing in the officer's interview “approache[d] the level of conduct necessary to overcome [defendant's] will to remain silent” or “otherwise resulted in a coerced confession” where there was no “badgering” or threats by the officer, the “tone of the questioning was casual, conversational, and cooperative” and there was “no hint of coercion or duress during the interview”); State v. Russell, 2nd Dist. Clark No.2011–CA–10, 2012–Ohio–4316, ¶ 23 (detective's interrogation techniques and statements to defendant that he needed to “man up” and “take some lumps,” i.e., tell the truth and take responsibility for his actions, were not inherently coercive tactics).
This record in the case at bar, including the video of Brown’s interaction with the detectives does not support any allegation of police coercion, show of authority or intimidation. Under the circumstances of the case at bar, we find the evidence supports the conclusion that Brown knowingly, intelligently and voluntary waived his Miranda rights and his statements to the police were voluntarily given.
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Vermont Supreme Court upholds confession obtained after false claim of DNA evidence
In State v. Kolts (January 2019) the Supreme Court of Vermont upheld the defendant’s confession that was made in response to the detective’s false claim that there was DNA evidence to prove his guilt. From the Court’s opinion:
Defendant appeals his conviction by a jury for aggravated sexual assault of a child. On appeal he makes several arguments, including that he was in custody when he confessed, and that his confession was involuntary because he was coerced by the police.
Re the issue of custody: the defendant drove himself to the police station; he was repeatedly told that he could end the interview and was free to leave at anytime; the detectives spoke in calm tones and were not aggressive in their demeanor; and the interview was short, lasting only 35 minutes. Also, when the defendant asked if he could have a witness present and the investigators told him that he could.
Re lying about evidence: The detective's false claim of DNA evidence is not enough to render his confession involuntary without other coercive actions, such as a promise of leniency. But the detectives here made defendant no promises of leniency. And, as courts have reasoned, an interviewer's use of false evidence is less likely to produce an involuntary confession than an interviewer's lie about matters external to the charge. For example, lies threatening a suspect's ability to retain custody of a child render a confession involuntary because they could induce a confession by overcoming a suspect's will. But lies about evidence of the charge are more likely to evoke, if any feelings at all, a suspect's beliefs about his or her own culpability.
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False evidence statements about fingerprints and witnesses were not coercive
In Anderson v. Vannoy, Warden (April 2019) the US District Court upheld the lower court’s decision not to suppress the defendant’s the incriminating statements. From the District Court’s opinion:
The following evidence was presented at the hearing on the motion to suppress….
The audio-recorded interview revealed that defendant’s rights were read to him, and he stated that he understood his rights and further stated that he wished to make a statement. Defendant denied that he had been physically or verbally abused and confirmed that he was making the statement of his own free will.
The police relayed some of the information that they had regarding the offense and admittedly used falsehoods. For example, the police indicated that they already knew what happened and that they had fingerprint evidence and witness statements implicating defendant. Vulgar language was also used along with repeated requests for truth, honesty, and details. The police also told defendant that he was not helping himself by lying and that he was being given the chance to tell the truth…. The police reminded defendant that his child and girlfriend loved him and suggested that defendant may have committed the offense for them, as they continued to question defendant. Before defendant finally confessed, he again admitted that he was not being forced to make the statements.
As to the voluntariness of defendant’s statements, we note that the police testimony indicated that there were no promises or abuse to induce defendant’s agreement to make a statement, and defendant indicated as such during the interview. As noted, defendant was fully advised of his rights and executed a waiver of rights form. We note that statements by the police to a defendant that he would be better off if he cooperated are not promises or inducements designed to extract a confession… A confession is not rendered inadmissible by the fact that law enforcement officers exhort or adjure a defendant to tell the truth, provided the exhortation is not accompanied by an inducement in the nature of a threat or one which implies a promise of reward. Further, a defendant’s confession is not inadmissible merely because in making it he may have been motivated by a desire to protect his girlfriend.
Regarding certain falsehoods used by the police during questioning, the issue is whether or not such tactics were sufficient to make an otherwise voluntary confession or statement inadmissible. In Lockhart, a detective misled the defendant into believing that the police knew more about the case than they really did by telling him that the victims had identified him. Another detective stated that he would inform the district attorney’s office that the defendant contended the shootings were accidental. This court found that the detectives’ statements to the defendant were not sufficient inducements “to make an otherwise voluntary confession inadmissible.” … Similarly, … this court determined that a defendant’s confession was not rendered involuntary, although the detective apparently misled the defendant into believing that one of his cohorts had confessed by informing him that the other suspects were “singing like birds.”
Considering the above, we further find that the trial court did not err or abuse its discretion in denying the motion to suppress. The assignment of error is without merit.
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Value of video recording; MA Supreme Court finds misrepresenting evidence and minimization were not coercive
In Commonwealth v. Gallett (March 2019) the Supreme Judicial Court of Massachusetts upheld the admissibility of the defendant’s confession. From the Supreme Court’s opinion:
Gallett contends that his age and relatively low IQ suggest that he did not voluntarily waive the Miranda warnings and voluntarily make inculpatory statements. After reviewing the interrogation video recording and hearing testimony from the interrogating officers, the motion judge found that Black read the Miranda warnings in a calm and careful manner and repeatedly informed Gallett that he could stop answering questions at any time. Furthermore, the motion judge found that Gallett appeared calm, was responsive to the questions, and displayed well-organized thinking and rational decision-making on how to respond. The motion judge concluded that Gallett understood the warnings, wanted to appear cooperative, and initially related events that he believed would be helpful to him.
Based on the evidence presented at the hearing on the motion to suppress and our independent review of the recorded interview, we conclude that the motion judge properly concluded, beyond a reasonable doubt, that Gallett made his statements voluntarily after a knowing and intelligent waiver of his Miranda rights.
Gallett argues that the interrogating officers misrepresented evidence that strengthened their case and made false assurances that ultimately induced Gallett into making inculpatory statements. We conclude that the officers did not act impermissibly.
We have suppressed a defendant's statements in circumstances where police use trickery or a ruse in obtaining a confession. Those cases generally have additional circumstances -- apart from the ruse itself -- that rendered the confession involuntary. (detective's use of minimization and false information, coupled with coercive tactics relating to defendant's son, rendered confession involuntary); (confession suppressed where police not only exaggerated strength of evidence against defendant, but also minimized moral and legal gravity of alleged crime; suggested that if he did not confess, he would be charged with more serious crimes; mischaracterized applicable law surrounding charged crime; and finally, after defendant invoked his right to counsel, dissuaded defendant from consulting with lawyer); (confession suppressed where, in addition to presenting defendant with false evidence suggesting his guilt, police minimized defendant's alleged criminal behavior and implicitly promised leniency as well as alcohol counselling if defendant confessed). (confession admissible where only improper factor was police use of false information in which they pretended to have fingerprints from defendant at scene of crime to secure confession).
Here, during the interrogation, officers asked Gallett whether video footage from inside the bus that dropped him off in front of the vacant house, his public transit card, or his cell phone records might reveal his location, movements, and telephone calls on the night of the murder. Officers also questioned him about possible forensic evidence that could be found in the victim's stolen vehicle. The officers' tactics were well within permissible parameters and did not rise to the level of “intentional misrepresentation[s] that ‘may undermine “the defendant's ability to make a free choice.” Their comments did not impermissibly maximize the apparent strength of their case. Nor did their questioning impermissibly suggest that they were in possession of incontrovertible evidence against Gallett.
Likewise, the officer's use of minimization and assurances, to the extent they were employed, were not improper. Gallett contends that the interrogating officers minimized the offense and made assurances by stating: “You know, maybe there's some reason it happened”; “I sure wouldn't want to be sitting here having me thinking that you planned out a murder when maybe all you were planning out was to get a free meal”; and “It's always better if you have somebody there that can tell you the truth. It has to be the truth as to what happened up there, okay?” These questions and statements were “within the bounds of acceptable interrogation methods.”
Based on the totality of these circumstances, we see no reason to disturb the judge's conclusion that the Commonwealth established that the defendant knowingly, intelligently, and voluntarily waived his Miranda rights and that his statements were voluntary beyond a reasonable doubt.
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Court decision contrary to the testimony of false confession expert Dr. Richard Ofshe
In People v. Sanchez (May 2019) the California Supreme Court upheld the admissibility of the defendant’s confession. From the Supreme Court’s opinion:
Defendant also contends his confession was involuntary. He “is of course correct that ‘[a]n involuntary confession may not be introduced into evidence at trial.’ ”… “ ‘A statement is involuntary if it is not the product of “ ‘a rational intellect and free will.’ ” The test for determining whether a confession is voluntary is whether the defendant’s “will was overborne at the time he confessed.” ’ ” … “In assessing whether statements were the product of free will or coercion, we consider the totality of the circumstances, including ‘ “ ‘the crucial element of police coercion,’ ” ’ the length, location, and continuity of the interrogation, and the defendant’s maturity, education, and physical and mental health.”
Defendant testified that Detective Ward threatened to put him in a cell with a “crazy man ... so he can kill you.” The detective also said, “I better tell him, and if not, then he, himself, would inject me so that he could see me die, suffering, dying, little by little for what I had done.” Sergeant Garay threatened to take his family away “if I didn’t tell him.” Defendant confessed “after they had me all scared and pressured. I told them so they could leave me at peace.” He also confessed “because of Ward’s threat, because Garay had already said to me that he was going to take my family away, because I was tired and so that I could satisfy them. I said it so they would leave me at peace, alone. This was three days with the chains. I was three days with the chains and all I wanted was to be left alone or at peace.” (Both Sergeant Garay and Detective Ward denied making these, or any, threats.)
Defendant also presented the testimony of Dr. Richard Ofshe, a social psychologist, regarding, as defendant states it on appeal, “how the misuse of police interrogation tactics, including threats and coercion, can result in false confessions.”
… the trial court discredited that [defendant’s] testimony in favor of the officers’ testimony that they did not threaten or coerce him. We accept that credibility finding. Except for defendant’s testimony, there was no evidence of police coercion. Although there were multiple interrogations, none was particularly lengthy, and they were spread out over three days. He ultimately confessed about 20 to 30 minutes into an interview that began after he had eaten lunch. Because there was no police coercion, defendant confession was not involuntary.
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