Legal Update Summer 2010 Part II

Police statement that they were not going to pursue any charges against the suspect, after advising him of his Miranda rights, renders the confession involuntary

In the case of US v. Lall, (May 2010) the United States Court of Appeals, Eleventh Circuit, found that the trial court was in error when they allowed the defendant's confession into evidence. The Appeals Court stated that, "In this case, Detective Gaudio gave Lall the Miranda warnings on the front lawn of the house. Nevertheless, Gaudio testified that before he entered the bedroom, he told Lall that he was not going to pursue any charges against him. Just as in Hart, this representation contradicted the Miranda warnings previously given. Indeed, this advice was far more misleading than that given in Hart. Our holding there compels the conclusion that, as a result of Gaudio's statements, Lall "did not truly understand the nature of his right against self-incrimination or the consequences that would result from waiving it." Hart, 323 F.3d at 895.

Moreover, as in Hart, the totality of the circumstances in this case also bolster Lall's challenge to the propriety of his interrogation. The record shows that during the interview with police, Lall was kept alone in his bedroom, isolated from his family, and told that the purpose of any questioning was to protect Lall's family from future harm. These undisputed facts, taken together with Gaudio's representations, compel the conclusion that Lall did not make a "voluntary, knowing and intelligent waiver of his privilege against self-incrimination and his right to counsel." Beale, 921 F.2d at 1434.

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Court denies expert psychiatric testimony that, based on defendant's background and the circumstances surrounding the interrogation, he confessed to a crime he did not commit

In the case of State v. Rosales, (July 2010), the Supreme Court of New Jersey had to determine "whether it was error to deny defendant Graciano Martinez Rosales' request to call a psychiatrist [Dr. Robert Latimer] as an expert witness to testify that defendant's confession was not voluntary. Defendant was indicted for the death of the victim, based, in part, on his confession. Defendant's motion to suppress his statement was denied. Prior to trial, defendant moved to present expert psychiatric testimony that, based on defendant's background and the circumstances surrounding the interrogation, he confessed to a crime he did not commit. The trial court denied the motion. A jury subsequently found defendant guilty. On appeal, defendant challenged the failure to permit his expert to testify that his statement was not voluntary."
"In his September 22, 2005 letter-report, Dr. Latimer opined that defendant "ha[d] been vulnerable to severe anxiety and panic due to the power of the interrogation setting." He concluded that defendant's "will was overcome to the point where he confessed to a crime he did not commit."

The Supreme Court stated that, "In rejecting the proposed expert testimony of Dr. Latimer, the trial court stated:

[Dr. Latimer] would be telling the jury that people have given false confessions in the past. Nothing else that he could say to the jury would be in any way scientifically established or accepted by the scientific community.

We agree. Because that testimony was not about a field that is at a "state of the art" to be considered sufficiently reliable, the trial court properly denied Dr. Latimer's proposed testimony."

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Can a person diagnosed as "schizoid paranoid affective schizophrenia" make a knowing and intelligent waiver of their Miranda rights?

In the case of People v. Harris, (June 2010) the Court of Appeal, First District, Division 1, California, found that the defendant did make a knowing and intelligent waiver of her Miranda rights, even though she was diagnosed as schizoid paranoid affective schizophrenia. In this case the Court of Appeal ruled that, "First, the inspectors did an exemplary job of explaining defendant's Miranda rights to her. Inspector Everson first asked defendant to listen very carefully to what he was about to tell her. He stated each right individually in clear, concise language, and paused after each statement to ask defendant whether she understood each right. She answered in the affirmative each time. Everson then asked defendant whether she understood everything he had just said to her, and she responded, "Yes." He next said, "And having these rights in mind, having what I just told you in mind, would you like to speak with us about your day today?" As discussed above, defendant responded by asking whether she was required to speak to the inspectors, and Everson told her she did not have to, but could do so if she would like to. She said, "It's fine." The inspectors did not push, pressure, or trick defendant into speaking to them in any way. Defendant's demeanor and responses during the interview did not show any resistance, ambivalence, or regret about agreeing to cooperate.

Second, defendant's age, education, and I.Q. fail to show defendant lacked the capacity to understand or knowingly waive her Miranda rights..."

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Court listens to but rejects Dr. Richard Leo's testimony that the interrogation was "psychologically coercive and the detectives "went over the line." Also, "suggesting possible justifications for a homicide (such as self-defense) is not coercive."

In the case of People v. Vargas, (June 2010), the Court of Appeal, Fourth District, Division 3, California upheld the trial court's decision to admit the defendant's confession.

During the suppression hearing "An expert in the field of interrogation techniques, Professor Richard Leo, was called to testify by defendant during the pretrial hearing to determine the admissibility of defendant's statements during the interrogation. Leo concluded the interrogation was psychologically coercive and the detectives "went over the line." Leo testified: "I can't get inside [defendant's] head, but the structure of the interrogation is ... 'we have all this evidence, it is irrefutable, this is your only chance. Here is an account, here is the explanation that we will get you a misdemeanor and is relatively painless. But, if you avoid this opportunity, you are looking at rotting in jail and getting charged with one, two, or three serious felonies.' [P] So the logic of it is 'if you don't do anything, you are going to be in the worst possible situation.' "

The trial court denied defendant's motion to exclude the interrogation tape and transcript from evidence. "[I]t just appears to the court that these implied promises and threats are of such a nature that they do flow naturally from these exhortations [to tell the truth] from the police."

The Appeals court further stated in their opinion that, "Accurately describing the possible consequences of a murder conviction is permissible. Suggesting possible justifications for a homicide (such as self-defense) is not coercive; this tactic instead suggests "possible explanations of the events and offer[s] defendant an opportunity to provide the details of the crime." ( People v. Carrington (2009) 47 Cal.4th 145, 171 ( Carrington ).) Although it is a factor potentially supporting a finding of involuntariness, deceiving a defendant by inaccurately describing the existence of physical evidence linking defendant to the crime does not necessarily invalidate a confession. ( People v. Thompson (1990) 50 Cal.3d 134, 166-167, 170 [confession voluntary even though interrogators falsely told defendant that tire tracks, soil samples, and rope fibers linked him to crime]; People v. Watkins (1970) 6 Cal.App.3d 119, 124-125 [confession voluntary even though defendant falsely told his fingerprints were found on the getaway car]; see Carrington, supra, 47 Cal.4th at p. 172 ["The use of deceptive statements during an interrogation ... does not invalidate a confession unless the deception is ' " 'of a type reasonably likely to procure an untrue statement' " ' "].)
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Statements like "try to get something going"; I want to help you put your "best foot forward" do not constitute promises of leniency.

Statements like "being the guy that's not being completely honest" and being the "odd-man out" and "left out in the cold," do not imply a threat or dire consequences.

In the case of People v. Atencio, (May 2010), the Court of Appeal, Third District, California found that the trial court properly admitted the defendant's confession, stating that, "Having examined the interviews, we discern no implied threats or promises of leniency. As defendant points out, detectives told him they were "trying to get something going" for him and trying to "help" him to put his "best foot forward" by providing a statement that honestly explained "why all this bad shit happened" and showed "some remorse" for Rapp's death. However, this cannot be construed as an implied promise of leniency. In the context of the interview, the detectives were doing nothing more than exhorting defendant to tell the truth and permissibly offering to help him explain his side of the story to the district attorney. (See People v. Ramos, supra, 121 Cal.App.4th at p. 1204 ["no improper promise of leniency" where the detective "promised only to present evidence of [defendant's] cooperation to the district attorney"].) The detectives "did not suggest they could influence the decisions of the district attorney," but simply informed defendant that providing an honest account of events might be beneficial in an unspecified way. ( People v. Carrington, supra, 47 Cal.4th at p. 174.) Indeed, immediately before he confessed to the murder plot, the detectives specifically told him the district attorney would be responsible for charging him and there probably was not a lot of "movement," "if any," as far as which crimes would be charged against him. Consequently, offering to help him explain his side of the story to the district attorney cannot be construed as an implied promise of leniency.

"Defendant also faults the detectives for warning him against "being the guy that's not being completely honest" and being the "odd-man out" and "left out in the cold," and for telling him the only way he could help himself was to tell them what happened. According to defendant, these statements constituted a threat that he was in a hopeless situation and would suffer dire consequences unless he confessed. He also complains the statements were repeated after he was told Krauter and Medina had confessed to the murder plot. Thus, he suggests, "the threat that [he] would be 'left out in the cold' if he did not confess to the murder plan like the others ha[d] done was meant to imply that all of the other participants who freely admitted participation in the murder plot would be receiving a more favorable outcome, and that he would be denied a similar benefit because of his refusal to admit the plan to commit murder."

"On the contrary, far from threatening defendant, the detectives were simply explaining the natural consequences that would flow from his lying to them, should his coconspirators suffer a crisis of conscience and confess. We have no doubt that, when those words of the detectives were repeated after they informed defendant that Krauter and Medina had confessed, the words carried greater weight in defendant's mind and likely led to the confession that followed immediately. But the fact that a strategy was effective does not make it unconstitutional. "No constitutional principle forbids the suggestion by authorities that it is worse for a defendant to lie in light of overwhelming incriminating evidence." ( People v. Carrington, supra, 47 Cal.4th at p. 174.) This is all that the detectives did in this case. They did not, as defendant claims, imply that Krauter and Medina would receive a more favorable outcome because they confessed, or that defendant would be denied a favorable outcome unless he also confessed."
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Can an interrogator's repeated invocations of offers to help the suspect render a confession inadmissible? Yes.

In the case of Day v. State, (March 2010) the District Court of Appeal, Fourth District, overturned the trial court's decision to admit the defendant's confession. In their opinion the court pointed out that, "In the statement introduced at trial, appellant confessed to illegal acts after the investigator's many invocations of offers to help him. Initially, the investigator stated, "Um, if-if something happened and its accidental-then we can work something out. But if it's something that-cause I don't see you as a predator, okay. I don't see you as a guy to go out there and start doing some crazy things." A little while later, the investigator stated,

Okay. And-if I just want to know what happened. If there's something that we can fix and we can work with, then that's what I want to know, okay. I don't want to sit here and start saying, well you-I'm not accusing you of anything. *1180 I'm trying to ask you what happened that night because I know, I know that something happened....

Then the investigator stated, "That's why I'm telling you, I wasn't there and this-I'm trying to give you the opportunity for you to help yourself so that I can work something out for you."
A few pages later in the statement, the investigator stated, "That's what I want to know. At least give me something. Tell me that this is what I did, you know." A brief time later, the investigator stated,

Well this is why you're here, to help yourself. Because you know what, if you were-if you were to get arrested on a charge of sexual battery, right, and you go before a judge or a jury and they actually get my version of-that you cooperated in the investigation, it does look a hell of a lot better for you than for you to sit there and fabricate story after story after story....

Then the investigator told appellant,
But you know what, it doesn't matter, it helps you-it helps you when I talk to the State Attorney and I tell them what type of person you were and how honest you were as to what happened, okay. It doesn't look good for you when you sit there and start trying to not say what happened....

Briefly later appellant stated that "I just don't want to go to jail. I don't like it there." The investigator responded that "you may be able to bond out like right in a couple of hours. You just got to get booked. What happened, James?" Whereupon, appellant asked, "You gonna help me?" The investigator answered, "I can do my best and talk to the State Attorney. That's what I can tell you." A page later in the transcript the investigator stated the following, "I'm gonna tell the State Attorney exactly what you're telling me. You are cooperating with me. You are telling me what happened. As long as you are honest with me, and I have a lot more than just putting lotion on her, okay. And this is why I-I need you to-to help yourself."

Finally, the investigator told appellant to "[t]rust me. Trust me," and

what I'm trying to do is I'm trying to figure out everything that happened here. I'm gonna-I'm gonna present this case to the State, okay. They're gonna go based on what I tell them, alright. You've put lotion on her in the bathroom, correct? Is that why you went to the bathroom?

"In the present case, based on the totality of circumstances, the many offers of help and the statements implying authority to influence the process rendered appellant's confession inadmissible as improper "fruits of hope."
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Court rejects suppression hearing testimony of Dr. Richard Ofshe

In the case of People v. Balbuena, (May 2010) the Court of Appeal, First District, Division 2, California upheld the trial court's decision to admit the suspect's incriminating statements. "Richard Ofshe testified as an expert "on the influence used in police interrogations." In his view, the interrogators, "working in tandem," used a "psychologically coercive" strategy "that is pushed forward by offering leniency through suggestion, and then ultimately through blatant statement of the same point to overcome resistance.... [I]t is a motivational strategy that is all about benefit if you comply, and more serious punishment if you don't. And that's the strategy that is used repeatedly, was developed and then used repeatedly throughout this interrogation. It's not a simple one statement." The detectives used a "coherent strategy" throughout the interrogation, promising appellant he would receive "the worst possible punishment" if he continued to maintain he had no involvement with the crime, while if he agreed to various suggestions it would "open the door to and result in his receiving great leniency, or relative leniency.... [P] Once compliance is gained, it's then used to overcome subsequent resistance." The court rejected this hypothesis.

During the defendant's interrogation the detectives again offered various scenarios: "[I]f it's a justifiable homicide or its something you did out of rage and you just weren't thinking straight then that's important for us to get down accurately. If you're just a killer that just wants to go around to kill people and skin cats and all that type of stuff, then by all means tell us and we'll document that as such." "Maybe you were shooting in defense and just, right maybe tying to scare him."

*13 This tactic was permissible. ( People v. Holloway, supra, 33 Cal.4th at pp. 116-117.) As the Holloway court explained, "[Detective] Hash's further suggestions that the killings might have been accidental or resulted from an uncontrollable fit of rage during a drunken blackout, and that such circumstances could 'make[ ] a lot of difference,' fall far short of being promises of lenient treatment in exchange for cooperation. The detectives did not represent that they, the prosecutor or the court would grant defendant any particular benefit if he told them how the killings happened. To the extent Hash's remarks implied that giving an account involving blackout or accident might help defendant avoid the death penalty, he did no more than tell defendant the benefit that might ' "flow[ ] naturally from a truthful and honest course of conduct" ' ( People v. Jimenez, supra, 21 Cal.3d at p. 612), for such circumstances can reduce the degree of a homicide or, at the least, serve as arguments for mitigation in the penalty decision. As the appellate court explained in People v. Andersen [ (1980) ] 101 Cal.App.3d [563,] 583, 'Homicide does possess degrees of culpability, and when evidence of guilt is strong, confession and avoidance is a better defense tactic than denial.' " ( People v. Holloway, supra, 33 Cal.4th at p. 116.) To the same effect, the court found in People v. Carrington (2009) 47 Cal.4th 145, 171, "Detective Lindsay's suggestions that the Gleason homicide might have been an accident, a self-defensive reaction, or the product of fear, were not coercive; they merely suggested possible explanations of the events and offered defendant an opportunity to provide the details of the crime." Here, in presenting appellant with different scenarios for how the crime could have occurred, the detectives told appellant time and again that it was important for them to know what he was thinking. This was relevant and accurate, as appellant's mental state would bear on the determination of which offense he could be charged with and found to have committed."
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Court does not allow expert testimony by Dr. Jeffrey Vanderwater-Piercy concerning false or coerced confessions

In the case of Ruiz v. State, (May 2010) the Court of Appeals of Indiana upheld the trial court's decision to exclude the testimony of Dr. Jeffery Vanderwater-Piercy. From the court's opinion:

"Ruiz's counsel wanted to present expert testimony by Dr. Jeffrey Vanderwater-Piercy concerning false or coerced confessions. The Doctor is a licensed clinical psychologist who had practiced for twenty years and had testified as an expert fifty times. However, he had never been qualified in any court as an expert on coerced confessions specifically.

At the time of the hearing on the admissibility of the testimony, the Doctor had not yet conducted any testing of Ruiz, but if his testimony were to be admissible, the Doctor would examine Ruiz to determine if he had any personality traits that would make him susceptible to police influence and whether the police interrogation was psychologically coercive. The Doctor had examined five other defendants for the possibility of false confession but had not found any evidence those confessions were coerced.

The court declined to allow the Doctor's testimony because although the Doctor "possesses extensive psychological knowledge and experience," (App. at 149), his testimony "would not assist the triers [sic] of fact in this case to understand scientific, technical or specialized evidence or to determine a fact in issue," ( id. at 149-150), and it would "be likely to cause unfair prejudice, to confuse the issues or to mislead the jury." Affirmed.
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Court rejects the claim that a coercive environment was created when the investigators mentioned the gravity of the offense and the possibility of a lengthy prison sentence and then told the suspect that if he cooperated he might benefit

In the case of US v. Dominguez-Gabriel, (May 2010) the United States District Court, S.D. New York, upheld the trial court's decision to admit the defendant's incriminating statements even though he claimed that the agents created a coercive environment when they mentioned the gravity of the offense and the possibility of a lengthy prison sentence and then told him that if he cooperated he might benefit.

From the court's opinion:

"Finally, the Defendant complains that the agents created a coercive environment when they mentioned the gravity of the offense and the possibility of a lengthy prison sentence and then told him that if he cooperated he might benefit. But the Second Circuit has made clear that simply stating that cooperation may help a defendant facing a lengthy sentence is not enough to render a statement subsequently made involuntary. United States v. Gaines, 295 F.3d 293, 299 (2d Cir.2002); United States v. Ruggles, 70 F.3d 262, 265 (2d Cir.1995) ("Certainly, statements to the effect that it would be to a suspect's benefit to cooperate are not improperly coercive."). And when the agents told the Defendant that he had been arrested on a serious offense for which he might face a lengthy jail sentence, they were simply informing him of the facts of his situation. See United States v. Tutino, 883 F.2d 1125, 1138 (2d Cir.1989) (holding that once a suspect "had been advised of his rights, the agents were free to discuss with him the evidence against him and the reasons why he should cooperate"); Green v. Scully, 850 F.2d 894, 903-04 (2d Cir.1988) (holding that police officials' references to the electric chair, while improper, did not render a confession involuntary); United States v. Pomares, 499 F.2d 1220, 1222 (2d Cir.1974) (holding that "[i]t was quite proper in the course of such discussion to mention the situation which Pomares faced," including informing the defendant he faced heavy penalties for drug smuggling).

Even taken together, none of these circumstances rise to the level of coercion or suggest that the Defendant's "will was overborne."
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Court excludes the testimony of Dr. Richard Ofshe

In the case of People v. Ekblom, (July 2010) the Court of Appeal, Sixth District, California upheld the trial court's decision to exclude the testimony of Dr. Richard Ofshe. From their opinion the court stated that:

"Prior to the jury being impaneled, defendant made an oral motion in limine to allow Ofshe to testify as an expert. Lempert identified Ofshe as "a world [-]renowned expert in false confessions" who would testify regarding "reasons why someone who is not guilty of an offense would confess to it." The prosecution objected to the proffered testimony on the grounds that (1) the defense had not disclosed the specific nature of the proposed testimony; (2) Ofshe's qualifications varied from the subject matter of his proposed testimony in that his usual testimony concerned coerced confessions and police interrogation techniques, not the circumstances of an admission by a defendant to a victim during a police-initiated pretext telephone call; and (3) Ofshe's testimony was unnecessary to the trier of fact. Defense counsel acknowledged that he had received no reports from Ofshe concerning his anticipated testimony. In response to the court's request for an offer of proof, Lempert indicated that Ofshe would "dispel [the] myth" that "innocent people do not confess to having committed crimes" and "[t]hat when badgered by an individual and by addressing the individual's sympathy and beneficence, that a person will confess to something [he or she] didn't do." The court ordered the exclusion of Ofshe's testimony. It reasoned that the circumstances of the case were dissimilar to those in which a suspect is coerced or bullied by the police into making a false confession, and that "there are no facts that take the question outside the [ken] of the ordinary juror.... [P] ... [P] ... There is nothing that the jury is not capable of understanding about how that personal pressure, emotional plea, and begging might affect someone to say something you think will have no consequence other than to placate an obviously distraught person." Affirmed.
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A statement to the defendant that "if his girlfriend was charged, and if she stayed in jail, there was a possibility that social services could take her children away" was not coercive

In the case of State v. Brock, (July 2010) the Court of Appeals of Wisconsin upheld the admission of the defendant's confession, even though he was told that "if his girlfriend was charged, and if she stayed in jail, there was a possibility that social services could take her children away." In their opinion the Appeals Court stated that:

"Brock argues that Lynumn v. Illinois, 372 U.S. 528 (1963), requires suppression of his statement. Lynumn held that threats that a mother's children would be taken away from her unless she "cooperated" "must be deemed not voluntary, but coerced." Id., 372 U.S. at 534. Lynumn is inapposite because in that case the defendant was threatened with the loss of her children if she did not confess. Id., 372 U.S at 530-534, 544. Here, however, Panasiuk told Brock that if his girlfriend was charged, and if she stayed in jail, there was a possibility that social services could take her children away. Under established law, absent a showing that such a scenario was impossible or feigned, the explanation of what could happen to a third person does not make the defendant's confession coerced."
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Value of electronically recording interrogations - "I'm going to hang your ass if you don't start telling the truth."

In the case of People v. Robair, (July 2010) the Court of Appeal, Second District, Division 6, California upheld the trial court's decision to admit the defendant's confession. The trial court had relied heavily on reviewing the video and audio recordings of the defendant's interrogation to determine the voluntariness of his statements. From the opinion, the Appeals Court found that:

"Prior to trial, the People filed a brief seeking to admit the statements appellant made during the May 26 interview, and the apology note he dictated and signed at the conclusion of that interview. Appellant filed a motion to exclude the evidence on the ground that his confession was involuntarily obtained through coercive police conduct.

"At the hearing on the motion, the court viewed the entire video recording of the May 26 interview and listened to an audio CD of the May 31 interview.

"After noting that appellant had waived his Miranda rights just as he had in prior cases, the court stated, "The overall tenor of the interview was courteous. The officers were using a normal tone of voice. Nobody was yelling at him. He was offered food and beverages which he didn't want, but then at the end when he wanted a soda, one was provided to him very promptly. They did accuse him of lying. They urged him very strongly to tell the truth on multiple occasions. They questioned him very persistently, but not in an overbearing manner. Nobody was leaning over him or shaking a fist in his face or anything like that." The court further found "[t]here was never any offer of leniency. They did tell him that they would take him to see if he could show them where this Eric lived so that they could talk to him and follow up on his story about Eric, and they did suggest that it was getting close to the time when they were going to be doing that and he would have to go show them, but that didn't seem to be an improper threat. It just-except that he might understand that if he wasn't telling the truth that that story was going to fall apart pretty quickly."

"In addressing Detective Smith's comment, "I'm going to hang your ass, if you don't start telling the truth," the court noted that appellant had essentially admitted he did not view the statement as a physical threat. Rather, he correctly understood it to mean "that he was going to build as solid a case as he could and was not going to do anything to help this defendant. [P] ... [Detective Smith] wasn't expressing frustration with the defendant trying to remain silent to exercise his right of silence. He was frustrated with ... what he perceived to be untruthful statements." The court reasoned that appellant's understanding to this effect was further supported by his response, " 'Well, he's going to do that anyway.' "
The court concluded, "[B]ased on my review of the totality of the circumstances of this interview and the cases that have been cited by both sides in this case, I do not find that [appellant's] confession was coerced by false promises or threats. So the motion to suppress [ sic ] is denied."
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Court expresses concerns when the entire interrogation is not electronically recorded

In the case of Scott v. City of Chicago, (July 2010) the US District Court, N.D. Illinois, the District Court expressed concern that the interrogation of the defendant was not recorded, but just the confession. From their opinion:

"Scott's Motion 1 seeks to bar from admission at trial (1) his videotaped confession, (2) the transcript of that confession and (3) what is called "the graphic demonstrative exhibit showing a transcription within the videotaped confession." In essence Scott's counsel argues that such a bar is supported by our Court of Appeals' very recent decision in Fox v. Hayes, 600 F.3d 819 (7th Cir.2010), which upheld the decision by this Court's colleague Honorable Jack Darrah to bar a videotaped confession in a case having great similarity to this one.

Here is what Fox said on the subject:

But there are no allegations of physical harm that the video could verify, and all of the allegations of coercion stem from events leading up to the video-events that the defendants chose not to record. Most importantly, the video represents just 23 of the 870 minutes or so of Kevin's interrogation, and thus cannot provide a complete picture of either the interrogation itself or Kevin's level of distress. Under those circumstances, we cannot say that the court abused its discretion in concluding that the video's prejudicial effect and potential for confusing the jury outweighed its probative value with respect to the issue of coercion or Kevin's demeanor following the interrogation.

And here is Scott's argument as to why Fox should control here (Motion at 4, emphasis in original):
The striking resemblance between what the Fox plaintiff experienced and what the Plaintiff in this matter alleges is uncanny. They both claim to have been subjected to emotional/psychological coercion, they both deny physical abuse, they both allege that their requests for an attorney were ignored, they both volunteered to take a polygraph examination to clear themselves, they both claim that their repeated denials of involvement in the murder fell on deaf ears, they both were offered a quid pro quo in exchange for confessing, and they both agreed to confess to have the police officers stop what they were doing. Critically, and most importantly, they both allege that the coercive interrogation tactics all occurred off camera.

Because defense counsel really cannot dispute the just identified parallels between the two cases, and because it is obvious that the content of the confession is really not relevant (and even it if were, it poses a major danger of unfair prejudice so as to bring Fed.R.Evid. ("Evid. R.") 403 into play), a good deal of defendants' response to the motion is unpersuasive. But on the other hand, there is force to the defense contention that the video's depiction of Scott's physical appearance at the time of the confession could be found probative by the jury.

Accordingly the video (but not the audio or the transcript, or the third item to which Scott objects, which sounds like the equivalent of closed captioning on a TV program) will be a permitted exhibit. For that purpose the bowdlerized tape will have to be submitted to this Court for review and approval materially in advance of trial, so that any other necessary changes may be decided upon."
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After a Daubert hearing a trial court rules that Dr. Richard Ofshe's testimony was inadmissible

In the case of State v. Lamonica, (July 2010) the Court of Appeal of Louisiana, First Circuit, upheld the trial court's decision to exclude the testimony of Dr. Richard Ofshe. The Court of Appeal stated that: "Dr. Ofshe's testimony at the Daubert hearing suggested that there was no methodology about false confessions that could be tested, or that would permit an error rate to be determined. In this area of research, the result of the lack of any reliable testing format to establish predictors of when a false confession might occur is a methodology consisting of analyzing false confessions only after a confession has been determined to be false.

The trial court did not err in finding Dr. Ofshe's proposed trial testimony inadmissible under Daubert."
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