Legal Updates Summer 2014
Investigator's statement that felony murder would receive a lesser sentence than premeditated murder did not render confession involuntary
In State v. Turner (May 2014) the Nebraska Supreme Court held that misinformation by police officers during the defendant's interview that felony murder would receive a lesser sentence than premeditated murder did not overcome defendant's will so as to render his confession involuntary based on purported promises of leniency. From the court's opinion:
"Turner argues that his confession was involuntary because it was induced by an implied promise that he would receive a lesser sentence if he confessed that the shooting was accidental. As evidence of this implied promise, he points to Ficenec's statements that it made "a big difference" how and why the shooting occurred and to Krause's statement that the possible penalty could be 1 to 10 years' imprisonment if the shooting was accidental. He claims that these statements constituted an implied promise of leniency which overcame his will and caused him to confess. He further argues that the officers' statements were deceptive because first degree murder encompasses felony murder--which does not require a showing of malice, intent, or premeditation.
Turner is correct in his assertion that the officers deceived him during the course of the interview at the parole office. Ficenec's statements as to there being "a big difference" how and why the shooting occurred, and specifically Krause's statement that Turner could get 1 to 10 years' imprisonment if the shooting was accidental, incorrectly indicated that felony murder would receive a lesser sentence than premeditated murder...
... We have previously noted that a deceptive statement regarding possible sentences is only one of several factors to be considered. In State v. Thomas, we determined that the defendant's confession was voluntary and not caused by misinformation regarding possible sentences due to the presence of three factors. These factors included that (1) the officers returned to previous themes between the discussion of possible penalties and the defendant's confession, (2) the defendant indicated a knowledge that he could receive life imprisonment for the crime both before and after his confession, and (3) the confession occurred after an officer indicated that he did not know what sentence would be imposed.
... As in Thomas, Turner's confession did not follow the discussion in which the officers misrepresented that a lesser sentence would be imposed for felony murder. Rather, his confession was immediately preceded by the officers' return to the prior theme of Turner not being a bad, evil person; Krause's exhortation to "do the right thing"; and the colloquy regarding Turner's belief in God and the fate of his soul. Thus, the dialog immediately preceding Turner's confession supports the conclusion that his confession was primarily motivated by remorse and a desire to do the right thing--not to receive a lesser sentence.
As to the second factor we identified in Thomas, Turner indicated both before and after his confession that he was aware he could receive a sentence of life imprisonment. Before Turner confessed at the parole office, he stated, "Man, I'm going to get life for this shit." And after he confessed and was transferred to the police department, Turner stated to Coleman, "I'm about to get like, life." Thus, this factor indicates that Turner did not believe his confession precluded him from receiving life imprisonment.
Finally, like the defendant in Thomas, Turner confessed after officers stated that they did not know what sentence would be imposed. In response to Turner's statement, "I'm going to get a hundred years," Ficenec replied, "I can't tell you what the potential penalty could be. I mean I'm not going to bullshit you. Could you potentially get life? Is that a possibility? I mean, I'm not a judge, I'm not a prosecutor." And during the colloquy immediately preceding Turner's confession, Krause stated, "I don't know, okay?" in response to Turner's assertion that he "might be in jail for a long-ass time." Thus, although they incorrectly indicated that felony murder would receive a lesser sentence, the officers made no representations as to what sentence Turner would receive if convicted. This factor supports the conclusion that Turner's confession was not motivated by a belief that he would receive a particular sentence.
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Video of interrogation demonstrates that juvenile did not make a knowing and intelligent waiver of his rights
In re J.M., a Minor (People v. J.M.) (April 2014) the Appellate Court of Illinois found that "J.M.'s youth, his mental deficiencies, the DVD which shows not only his inability to read his rights, but also his trust in Jany and Vespa despite their intention to get a statement to use against him, and Dr. Cuneo's credible, expert testimony, we find that the trial court's decision that respondent knowingly and intelligently waived his Miranda rights is against the manifest weight of the evidence."
In their opinion the court stated the following: "The critical test used in determining whether an accused knowingly and intelligently waived his or her rights is whether the words in the context used, considering the age, background, and intelligence of the individual being interrogated, convey a clear and understandable warning of all his or her rights... Whether a waiver is knowing and intelligent is determined by the particular facts and circumstances of each case, including the defendant's background, experience, and conduct... Illinois courts have long recognized that a defendant's mental capacity at the time of the alleged waiver must be considered in determining whether his or her actions were knowing and intelligent, and while mental deficiency alone does not render a statement unintelligent, it is a factor that must be considered
Moreover, our supreme court has specifically stated that "[t]he greatest care must be taken to assure that a juvenile's incriminating statement was not the product of ignorance of rights or of adolescent fantasy, fright or despair."... In addition, our supreme court has explicitly stated that care must be taken with defendants who are mentally deficient due to the following:
"[I]t is generally recognized that the mentally retarded are considered more susceptible to police coercion or pressure than people of normal intellectual ability, they are predisposed to answer questions so as to please the questioner rather than to answer accurately, they are more likely to confess to crimes they did not commit, they tend to be submissive, and they are less likely to understand their rights." ....
Therefore, when dealing with a mentally deficient juvenile, extreme care must be used to assure that he knowingly and intelligently waived his rights.
... J.M. was also 13 years of age; however, his mental capacity was that of a 7-year-old. His IQ was either 54 or 56, which, ... puts him in the mild mentally retarded range. J.M. also attended special education classes and was unable to explain the meaning of the word "silent" with regard to the first Miranda warning. Additionally, an expert testified that J.M. did not knowingly and intelligently waive his Miranda rights.
Here, Dr. Cuneo evaluated J.M. on two separate occasions: first, to determine whether J.M. was fit to stand trial and, second, to determine whether he could knowingly and intelligently waive his Miranda rights. Dr. Cuneo specifically found that J.M., who only reads at a first-grade level and who was intellectually in the bottom .04% of the population, was incapable of reading or understanding his Miranda rights. Our own review of the videotaped statement contained on the DVD shows that J.M. was incapable of reading his rights.
J.M. could not even read the word "silent" in the first warning. The DVD shows that after J.M. had trouble reading the word "silent," Officer Jany took over and read him his rights, trying to explain them along the way. Jany also told J.M. that J.M.'s mother was outside and she just hoped J.M. would be honest. After Jany read J.M. each of his rights, he told J.M. to initial and then sign the form. J.M. complied. Even though J.M. said he watched rights being given on television and had been read his rights "at the other station" on a different occasion, our review of the DVD does little to alleviate our concerns that J.M. did not fully appreciate that it was the State's intention to use his statement to secure a conviction against him or that he had the right to stand mute and request a lawyer. Instead, it appears to us that J.M. was compliant and wanted to please the officers, which, as previously discussed, is common among those suffering a mental deficiency."
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Confession rendered involuntary when defendant told he could not get a fair trial because of his race
In Bond v. State (May 2014) the Indian Supreme Court ruled that the defendant's confession was rendered involuntary by statements from the detective that due to the fact the defendant was African American he might not receive a fair trial.
From the court's opinion: "But with respect to the detective's statement that Bond might not receive a fair trial because of his race and the likely composition of a prospective jury, our sentiment goes beyond the trial court's "great concern" and the Court of Appeals majority's disapproval of it as being "inappropriate." This is not a police tactic that we simply "do not condone" because it is deceptive. Instead, this was an intentional misrepresentation of rights ensconced in the very fabric of our nation's justice system--the rights to a fair trial and an impartial jury, and the right not to be judged by or for the color of your skin--carried out as leverage to convince a suspect in a criminal case that his only recourse was to forego his claim of innocence and confess. And like Judge Kirsch, we condemn it.
... in this case Bond was intentionally deceived as to the fairness of the criminal justice system itself because of the color of his skin. Regardless of the evidence held against him or the circumstances of the alleged crime, he was left with the unequivocal impression that because he was African American he would spend the rest of his life in jail. Unless he confessed. And in unfortunate days gone by, this might have been the case. But no one wants to go back to such a time or place in the courtroom, and so we will not allow even the perception of such inequality to enter the interrogation room.
Thus, in considering the totality of the circumstances surrounding Bond's interrogation, despite the otherwise permissible conduct by the detective, and despite Bond's apparent maturity, health, education, and the favorable conditions of the interrogation, this deception by the detective tips the scale to involuntariness."
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Value of recording: Video of interrogation contradicts defendant's claims
In People v. Kronenberger (March 2014) the Appellate Court of Illinois, First District, First Division, upheld the lower court's decision to admit the defendant's confession, relying on the videotape of the interrogation to discredit the defendant's claims.
From the court's opinion: "The defendant makes a number of arguments that his videotaped confession to the police was given involuntarily, because the interrogation techniques used by police detectives to obtain it included repeated threats, coercion and deception. Such repeated threats and coercion, he asserts, precluded him from voluntarily waiving his Miranda rights or otherwise voluntarily providing a statement. He further contends that certain comments made by the detectives, to the extent that they contradicted and undermined his right to remain silent and right to counsel, nullified the Miranda warnings provided to him. Specifically, he points to comments made by the detectives during interrogation, such as "your silence speaks volumes here. Your silence is making you a dirty gang banging [expletive]," "[you will] swing for this," and "the only [expletive] way you're going to get any of us out of here is to [expletive] tell us what happened."
Viewing the complained-of statements in context of the entirety of the interrogation, we find that the first two quoted remarks by the detectives did not undermine or conflict with his right to silence, as the defendant suggests. These two remarks, when viewed in context, show the detectives' explanation to the defendant that the only version of the events that the police possessed came from Emil's father, Edward, who had placed all of the blame for the crime on the defendant. Indeed, our review of the videotaped interrogation reveals that the detectives repeatedly tried to convince the defendant to tell "the truth," to tell his "story," to take this opportunity to "flip the script," to "help" himself, and to not let others tell his side of the "story," while the defendant repeatedly lamented over the seriousness of the situation by making statements that it was a "lose-lose situation," and that he was "[expletive]," "done," going to get "locked up," "going to jail," and that his "future" was "gone." Nor do we find any of the statements to be a nullification of the Miranda warnings provided to him.
... Based on our examination of the videotaped statement, we find that the defendant's portrayal of the interrogation as containing repeated threats and coercion to be an out-of-context view of the detectives' comments. The running theme of the bulk of the interrogation was that the police tried to convince the defendant to tell his version of what happened and tried to appeal to his sense of doing the "right thing." Throughout the interrogation, the detectives told the defendant that they knew he was involved in the crime but did not think he was the shooter, and that they thought Emil was actually the mastermind behind the robbery and killing. We find that the detectives' references to an "L-I-F-E" sentence, to "save" himself, and to avoid doing "a lot of time" only highlighted the reality that he could avoid the maximum sentence if he was not the shooter. Likewise, we find that the police did not offer any inducement or promises of leniency to obtain the defendant's confession. Rather, the alleged "promise of leniency," when viewed in context on the videotape, shows that Detective Murray informed the defendant that the detective did not "cut deals," that the detective's objective was to have the "absolute truth in knowing that [he was] putting the right person in jail," and that he wanted to be able to state with certainty that the defendant did not personally discharge the firearm.... Indeed, during the interrogation, detectives never misrepresented to the defendant that he would escape legal consequences if he confessed, but instead, they candidly told the defendant that "no doubt" he was in a bad situation, that no one would get a "free walk," but that he should do the "right thing" by telling the police what had occurred. Moreover, we find that, at the time of questioning, the defendant, who was 22 years old, was no stranger to the criminal justice system and was well aware of the severity of the circumstances in which he found himself. Under the totality of the circumstances, we find that the defendant's subsequent videotaped confession was voluntary.
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Supreme Court finds Florida test to determine intellectual disability as factor for eligibility for execution unconstitutional
In Hall v. Florida (May 2014) the United States Supreme Court held that Florida's law defining intellectual disability as an IQ score of 70 or better, creates an unacceptable risk that persons with intellectual disability will be executed, and thus is unconstitutional.
From their opinion: "After this Court held that the Eighth and Fourteenth Amendments forbid the execution of persons with intellectual disability,... Hall asked a Florida state court to vacate his sentence, presenting evidence that included an IQ test score of 71. The court denied his motion, determining that a Florida statute mandated that he show an IQ score of 70 or below before being permitted to present any additional intellectual disability evidence. The State Supreme Court rejected Hall's appeal, finding the State's 70-point threshold constitutional.
The State's threshold requirement, as interpreted by the Florida Supreme Court, is unconstitutional.
(a) The Eighth Amendment, which "reaffirms the duty of the government to respect the dignity of all persons," ... prohibits the execution of persons with intellectual disability. No legitimate penological purpose is served by executing the intellectually disabled. ... Prohibiting such executions also protects the integrity of the trial process for individuals who face "a special risk of wrongful execution" because they are more likely to give false confessions, are often poor witnesses, and are less able to give meaningful assistance to their counsel....
(b) Florida's rule disregards established medical practice. On its face, Florida's statute could be consistent with the views of the medical community discussed in Atkins and with the conclusions reached here. It defines intellectual disability as the existence of concurrent deficits in intellectual and adaptive functioning, long the defining characteristic of intellectual disability. See Atkins, supra, at 308. And nothing in the statute precludes Florida from considering an IQ test's standard error of measurement (SEM), a statistical fact reflecting the test's inherent imprecision and acknowledging that an individual score is best understood as a range, e.g., five points on either side of the recorded score. As interpreted by the Florida Supreme Court, however, Florida's rule disregards established medical practice in two interrelated ways: It takes an IQ score as final and conclusive evidence of a defendant's intellectual capacity, when experts would consider other evidence; and it relies on a purportedly scientific measurement of a defendant's abilities, while refusing to recognize that measurement's inherent imprecision. While professionals have long agreed that IQ test scores should be read as a range, Florida uses the test score as a fixed number, thus barring further consideration of other relevant evidence, e.g., deficits in adaptive functioning, including evidence of past performance, environment, and upbringing.
(c) The rejection of a strict 70-point cutoff in the vast majority of States and a "consistency in the trend," Roper, supra, at 567, toward recognizing the SEM provide strong evidence of consensus that society does not regard this strict cutoff as proper or humane. At most, nine States mandate a strict IQ score cutoff at 70. Thus, in 41 States, an individual in Hall's position would not be deemed automatically eligible for the death penalty. The direction of change has been consistent. Since Atkins, many States have passed legislation to comply with the constitutional requirement that persons with intellectual disability not be executed. Two of those States appear to set a strict cutoff at 70, but at least 11 others have either abolished the death penalty or passed legislation allowing defendants to present additional intellectual disability evidence when their IQ score is above 70. Every state legislature, save one, to have considered the issue after Atkins and whose law has been interpreted by its courts has taken a position contrary to Florida's.
(d) Atkins acknowledges the inherent error in IQ testing and provides substantial guidance on the definition of intellectual disability. The States play a critical role in advancing the protections of Atkins and providing this Court with an understanding of how intellectual disability should be measured and assessed, but Atkins did not give them unfettered discretion to define the full scope of the constitutional protection. Clinical definitions for intellectual disability which, by their express terms, rejected a strict IQ test score cutoff at 70, and which have long included the SEM, were a fundamental premise of Atkins. See 536 U.S., at 309, nn. 3, 5. A fleeting mention of Florida in a citation listing States that had outlawed the execution of the intellectually disabled, id., at 315, did not signal the Atkins Court's approval of the State's current understanding of its law, which had not yet been interpreted by the Florida Supreme Court to require a strict 70-point cutoff.
(e) When a defendant's IQ test score falls within the test's acknowledged and inherent margin of error, the defendant must be able to present additional evidence of intellectual disability, including testimony regarding adaptive deficits. This legal determination of intellectual disability is distinct from a medical diagnosis but is informed by the medical community's diagnostic framework, which is of particular help here, where no alternative intellectual disability definition is presented, and where this Court and the States have placed substantial reliance on the medical profession's expertise."
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Investigators operated at the "outer bounds of permissible conduct"
In U.S. v Thomas (May 2014) the US District Court, N.D. Illinois, upheld the admissibility of the defendant's confession, but cautioned the investigators that they were operating at the outer bounds of permissible conduct. From the court's opinion:
"Defendant argues that the use of his statement at trial would violate his Fifth Amendment right against self-incrimination because he was impaired by his pain medication and therefore lacked the capacity to make a voluntary confession.
Defendant argues that the agents' coercion began with their failure to identify themselves and the purpose of their visit. He also claims that the agents coerced him because they misrepresented the intended length of the interview and interviewed him knowing that he was impaired by his medication. The Court, aided by the factors listed above, comes to a different conclusion. Defendant is an adult and possesses a sufficient educational and intelligence level to run his own business. The interview was less than two hours in length. Defendant testified that Special Agent Dahlgren grew aggravated during the interview when Defendant contradicted him, but Defendant remained undeterred in clarifying his statements to the agents. In addition, Defendant alleges no use of physical punishment. As discussed above, Defendant was not admonished of his constitutional rights because he was not in custody. Using the multi-factor test laid out by the Seventh Circuit, the Court cannot find any evidence of coercion by the agents.
Although Defendant has not proven any constitutional violation was committed by the agents, the Court is troubled by the agents' investigative tactics. Special Agent Colin testified that she was aware that Defendant was represented by Sam Adam, Jr. Even if Defendant stated during the interview that Adam was not representing Defendant "at that time," Special Agent Colin read the correspondence sent by Adam to the CTA declaring that he was representing Defendant in any investigation pertaining to Thomas Painting and Decorating. The agents took advantage of Defendant's lack of legal prowess in order to run an end-run around his Fifth Amendment rights. While Defendant's assertions regarding his mental state are not compelling enough to invalidate the voluntariness of his confession, the Court notes that this entire dilemma could have been avoided if the agents had simply contacted Defendant's attorney prior to conducting the interview. Unfortunately, the Court cannot locate, and Defendant has not provided, any case law to suggest that the agents' tactics warrant a suppression of his statement. Indeed, a government agent's deceitful conduct does not render a confession inadmissible absent threats or promises by the agent.... The Court recognizes that government agents must zealously pursue alleged criminal wrongdoing. Nonetheless, the Court warns HUD and DOL that, in this instance, their agents operated at the outer bounds of permissible conduct under the Fifth Amendment."
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Confession was coerced when investigators threatened to have Child Protective Services take defendant's child away
In U.S. v Guzman (June 2014) the US District Court, W.D. Texas, ruled that "By implying that he and Hernandez had the ability to determine whether Child Protective Services would take away the custody of her child, Mora improperly coerced Defendant into confessing to importing, knowingly, twenty packages of marijuana. Threatening the custody of a defendant's child is coercive when used to illicit a confession of a defendant. See Lynumn v. Illinois, 372 U.S. 528, 534, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963) (holding that threatening to cut off state benefits and custody of her children was coercive). In the instant case, Defendant was separated from her minor child and, after being escorted into an interrogation room, was not informed of what steps would be taken with her child. After denying Hernandez and Mora's allegations throughout her interrogation, Defendant succumbed to their pressure only after Mora made threatening statements about his power to have Child Protective Services take custody of her child and Hernandez stated that he was leaving the room to determine what steps to take with the minor child. The statements made by Mora, together with Hernandez's actions and the separation of Defendant from her child, constitute coercion and rendered Defendant's confession thereafter involuntary. For these reasons, the Court finds that Defendant's confession was involuntary and that Defendant's oral and written statements, made after Mora and Hernandez's statements and actions concerning the custody of Defendant's child, be suppressed."
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Defendant claims statements were involuntary because he had been given morphine, hydrocodone and promethazine
In Williams v. Stephens (June 2014) the US District Court , N.D. Texas, the court upheld the admissibility of the defendant's incriminating statements. From the court's opinion, "In his second ground for relief, Petitioner asserts that his statements to the police were involuntary because he had been given "mind altering" drugs, i.e., morphine, hydrocodone, and promethazine, for pain prior to making the statement.... He also claims, in his first ground for relief, that his statement was involuntary because the police officer who took his statement threatened his sister with criminal charges.
During the first of the two-day hearing on the motion to suppress, Detective Thompson testified that he spoke to the medical staff about Petitioner's mental state, and that the attending nurse told him that Petitioner was not under any type of medication that would impair or hinder his ability to talk and make judgment calls. He also testified that Petitioner appeared lucid at the time of both statements and gave appropriate answers to Thompson's questions.... Thompson acknowledged speaking to Petitioner's sister at the hospital to gather information. He denied telling her she was a suspect, threatening to handcuff her, speaking to any of Petitioner's family members about being suspects, telling Petitioner that one of his family members was a suspect, or threatening to arrest a family member.
Bill Jones, the nurse administrator at Parkland, testified that he witnessed Petitioner make the second statement to police. He signed the statement, along with Petitioner and Thompson. Before the statement, Jones spoke to Petitioner to make sure he was coherent, lucid and not under duress. He asked Petitioner if he knew what he was about to do, and whether the police had anything to do with him deciding to make the statement. Petitioner stated that he knew what he was doing. (Supp. R.[5/8/09]:47-49). After Petitioner made his statement and the police officer began to read it back, Jones asked Petitioner whether he realized the implications of making the statement, and Petitioner said that he did. Id. at 49-50. Jones did not believe that Petitioner was suffering from any delusions; he believed that Petitioner was able to make an independent, informed decision. Id. at 50. After the statement was taken and the police left the room, Jones against asked Petitioner whether anyone did anything to cause him to make the statement, and Petitioner said no. Id. at 55.
The record shows no coercive police conduct on the part of Detective Thompson, or any other officer, that would render Petitioner's two statements involuntary. Contrary to his assertion, he only received morphine in doses that were below what the defense expert considered normal dosage for Petitioner's size, and there was no evidence that Petitioner suffered mind-altering effects from this dosage. His second statement was coherent, related the facts in a cohesive manner, referred to the first statement, and was similar in parts to it. Finally, there was no evidence at the motion to suppress hearings that Petitioner was either suffering extensive pain or was overly encumbered by hospital equipment. The nurse administrator took steps to ensure that Petitioner understood what was happening and wanted to speak to the police. After speaking to the detective, the statement was read to Petitioner, and he read the statement himself and signed it. Petitioner's claim that his written statements were involuntary is without merit and should be denied."
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Colorado Supreme Court examines 13 factors that should be considered in evaluating whether a confession was coerced
In People v. McIntyre (May 2014) the Colorado Supreme Court found that, contrary to the trial court's opinion, the investigator did not improperly coerced McIntyre into making inculpatory statements so as to render those statements involuntary. In their opinion the Supreme Court stated the following:
"In evaluating whether the police's conduct was coercive, we examine "both the defendant's ability to resist coercive pressures and the nature of the police conduct."... Specifically, we consider the following non-exhaustive set of factors:
1. whether the defendant was in custody;
2. whether the defendant was free to leave;
3. whether the defendant was aware of the situation;
4. whether the police read Miranda rights to the defendant;
5. whether the defendant understood and waived Miranda rights;
6. whether the defendant had an opportunity to confer with counsel or anyone else prior to or during the interrogation;
7. whether the statement was made during the interrogation or volunteered later;
8. whether the police threatened [the] defendant or promised anything directly or impliedly;
9. the method [or style] of the interrogation;
10. the defendant's mental and physical condition just prior to the interrogation;
11. the length of the interrogation;
12. the location of the interrogation; and
13. the physical conditions of the location where the interrogation occurred.
In its suppression order, the trial court focused almost exclusively on just 2 of the 13 factors announced in Medina: "whether the police threatened [the] defendant or promised anything directly or impliedly," and "the method or style of the interrogation." ... In so doing, the trial court neglected to apply a totality-of-the-circumstances analysis, which our jurisprudence requires.... Our analysis of the 13 Medina factors reveals that Deputy Porter did not overbear McIntyre's will.... Admittedly, the interview took place in a law enforcement environment, and McIntyre proffered the challenged statements during the interview. But it is undisputed that McIntyre was not in custody, that he received Miranda warnings, and that he waived his Miranda rights. Additionally, while the trial court found that McIntyre "appeared disheveled and dirty," the interview was relatively short, and the door to the interview room was unlocked. Moreover, the record demonstrates that McIntyre received the opportunity to confer with counsel both prior to and during the interview; not only did McIntyre's interview with Deputy Porter take place a full week after his meeting with Detective Otto (allowing him ample time to consult a lawyer), but Deputy Porter explicitly told McIntyre, "You actually have a right to an attorney before you're being questioned, while you're being questioned, after you're being questioned, whenever ... you want."
As to the method and style of the interrogation, we note that Deputy Porter did not exploit any unique vulnerability of McIntyre's.... Deputy Porter spoke calmly and cordially throughout, and McIntyre had no difficulty understanding him. Moreover, none of Deputy Porter's comments preyed on any weaknesses of nor induced any fear in McIntyre.
Although the trial court did not address the issue of exploitation explicitly, several of its findings suggest that it believed that Deputy Porter took advantage of McIntyre's relatively low education level and poor reading ability. For example, in assessing McIntyre's educational background, the trial court found that he is "functionally illiterate." It further found that the apology letter McIntyre wrote after Deputy Porter left the room was "unintelligible." These findings, however, are unsupported by competent evidence. McIntyre did indicate that he is dyslexic, but he never suggested that he is illiterate. On the contrary, the record establishes that McIntyre can read, albeit with some difficulty. Before having McIntyre sign the consent form for the lie detector test, Deputy Porter made certain that he could understand it, asking, "Do you feel like you can read the words on here, or do you have to take my word for it?" McIntyre responded unequivocally that he could read the form before he initialed and signed it. As to the apology letter, that letter itself was never introduced into evidence, and although Deputy Porter testified that it was "not ... exceedingly well-written," he also testified as to its general contents and never suggested that it was unintelligible.
Finally, in assessing whether the police made any implied promises, the trial court highlighted six separate comments from Deputy Porter that combined to "vitiate the voluntariness" of McIntyre's statements. We examine each of these comments in turn and ultimately conclude that, when viewed in light of the totality of the circumstances, they were not implied promises that cumulatively rose to the level of coercion so as to overbear McIntyre's will."
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"the law permits the police to pressure and cajole, conceal material facts, and actively mislead"
In US v. Graham (June 2014) the US District Court, N.D. Georgia, upheld the admissibility of the defendant's incriminating statements, and carefully examined the issue of police deception during an interrogation. The District Court stated the following in their opinion:
"The focus of the voluntariness inquiry is whether the defendant was coerced by the government into making the statement, so "the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception." ... Thus, "[t]hose cases where courts have found confessions to be involuntary 'have contained a substantial element of coercive police conduct.'... "Sufficiently coercive conduct normally involves subjecting the accused to an exhaustingly long interrogation, the application of physical force or the threat to do so, or the making of a promise that induces a confession."
... Whether the police employ deceptive tactics to elicit a confession is "one factor to consider among the totality of the circumstances in determining voluntariness." ... However, "[c]ourts have been reluctant to deem trickery by the police a basis for excluding a confession on the ground that the tricks made the confession coerced and thus involuntary." ... Rather, courts have held that "trickery or deceit is only prohibited to the extent it deprives the suspect of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them." ... Thus, "[t]he kinds of deception that are generally deemed to trigger suppression are lies about a defendant's legal rights ( i.e ., 'you must answer our questions'), false promises ( i.e., 'whatever you say will be just between us'), or threats ( i.e., 'if you don't talk, you won't see your family for a very long time') ."
... Although Graham asserts that the agents' use of deception in this case "[wa]s itself aggravated and standing alone is sufficient basis to hold that [his] statements ... were the product of coercion," [Doc. 41 at 23], the law in the Eleventh Circuit "is clear, that the police's use of a trick alone will not render a confession involuntary," unless there are "other aggravating circumstances" beyond the mere use of deceptive tactics, ... Indeed, "[c]onfessions are not generally rendered inadmissible merely because they are obtained by fraud, deception, or trickery practiced upon the accused, provided the means employed are not calculated to procure an untrue statement and the confession is otherwise freely and voluntarily made."
Graham cites to a number of cases in which statements elicited from a defendant in response to police deception were found involuntary,.... but these cases all involve significant aggravating circumstances not present here, see, e.g., Lynnum, 372 U.S. at 534 (mother's confession held involuntary where "made only after the police had told her that state financial aid for her infant children would be cut off, and her children taken from her, if she did not 'cooperate' "); Spano, 360 U.S. at 321-22 (finding confession involuntary where defendant was foreign-born, had only one-half year of high school education and a history of emotional instability, and was subjected to prolonged late-night questioning that included repeated denials by police of the request to consult with attorney and the threat that if he remained silent his friend on the police force would lose his job); Irons, 646 F.Supp.2d at 971-72 (confession involuntary where police sought to "exploit [defendant's] friendship" with a female officer, in whom he also had a romantic interest, by falsely telling him that the officer had been arrested and that he "should confess in order to protect her from prosecution"); but see United States v. Charlton, 565 F.2d 86, 89 (6th Cir.1977) (confession voluntary notwithstanding police threats to arrest son absent cooperation).... Indeed, the cases cited by Graham illustrate nothing short of "extreme forms of deception or chicanery," United States v. Jacques, 744 F.3d 804, 812 (1st Cir.2014) (citations and internal marks omitted), which are far removed from the ruse used here. Moreover, the defendants in those cases were given the impression by police that they could avert some impending harm that would otherwise befall their family or friends, if only they would "cooperate" with the investigation. In this way, they were essentially confronted with the dilemma of either cooperating with the police or else allowing their loved ones to suffer as a result of their own recalcitrance, which "not only impaired [the defendants'] free choice, but also cast doubt upon the reliability of the resulting confession," Holland, 963 F.2d at 1051. Here, in contrast, there is not the slightest hint that the agents rendered Graham's confession unreliable by confronting him with a similar ultimatum that directly implicated any close personal or familial relations. And if Graham was actually deceived by the ruse and agreed to speak with the agents in order to help them find the missing girl, as he appears to allege, see [Doc. 41 at 5, 24-25], this would not make his statements less reliable, since it would have been counter-productive for him to provide the agents with false information that would only impede their efforts to locate her.
In brief, "the effect of psychological pressure or deception on the voluntariness of a statement depends on the particular circumstances in each case,"... and the circumstances in this case simply do not show that the agents' misrepresentation about a missing girl, unaccompanied by any aggravating factors, rose to the level of "coercive police activity,"... that so overpowered Graham's will or "critically impaired" his "capacity for self-determination," as to render his statements involuntary, ... Indeed, "[f]ar from making the police a fiduciary of the suspect, the law permits the police to pressure and cajole, conceal material facts, and actively mislead--all up to limits not exceeded here[.]"... Accordingly, the ruse employed by Agents Harris and Westhall "did not amount to coercion in violation of [Graham's] Fifth Amendment rights," ... and the totality of the evidence in this case demonstrates that Graham's statements at the interview of May 31, 2012, were made voluntarily.
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PA Supreme Court rules that expert testimony of false confessions invades the province of the jury
In Commonwealth v. Alicia (May 2014) the Pennsylvania Supreme Court held that expert testimony on the phenomenon of false confessions would impermissibly invade the jury's exclusive role as the arbiter of credibility. From their decision:
"When asked [by the trial court] what he would testify to, were he permitted to testify in Appellee's case, Dr. Leo responded as follows. First, in general terms, he would educate the jury as to police interrogation methods, psychological research on interrogation methods, and coercive interrogation methods that can put an innocent suspect at risk of making a false confession... Second, in terms of the specifics of this case, Dr. Leo would discuss the specific interrogation techniques he discerned from interviewing Appellee about what took place during his interrogation, and identify any possible risks of false confession posed by those techniques. In addition, Dr. Leo would discuss the relevance of Appellee's low IQ to the risk of false confession... At the end of the hearing, the trial court ordered the parties to submit memos on the admissibility of Dr. Leo's proffered trial testimony.
Dr. Leo also submitted a report to the court in which he stated that if called to testify at Appellee's trial, he would provide the following testimony: "I would provide general educative testimony about modern American interrogation techniques and strategies; the step-by-step process through [sic] psychological interrogation is designed to move the suspect from denial to admission; the assumptions, goals and effects of police interrogation practices; which interrogation methods and strategies researchers regard as psychologically coercive and why; how and why psychologically coercive police interrogation techniques can lead the innocent to confess falsely; what we know about the phenomenon of interrogation-induced false confession; the personal and situational risk factors for interrogation-induced false confession; and the patterns, characteristics and indicia of unreliability found in interrogation-induced false confessions."
On August 12, 2008, the court issued the following order, which permitted Dr. Leo to testify in general regarding police interrogation techniques, but barred him from giving testimony as to any specific allegations in Appellee's case:
1. Dr. Leo may testify, based on his knowledge, his own research and the research of others with which he is familiar, about the general concept of false confessions.
2. Dr. Leo may further testify, again based on his knowledge, his own research and the research of others with which he is familiar, about:
(a). Police training methods in the field of interrogations;
(b). Police interrogation methods; and
(c). Why certain interrogation techniques, if used in a particular case, may increase the risk of false confession.
3. Dr. Leo may not testify as to case specific allegations about the interrogation in the instant case, and may not offer testimony based on:
(a). Statements provided to him by the defendant either verbally or in writing;
(b). Documents or reports prepared by counsel or other experts, to the extent such documents or reports purport to be based on discussions with or information about the defendant, Jose Alicea;
(c). What he believes may be factors specific to this interrogation that may have given rise to a false confession; and
(d). Whether or not he believes the confession in this case was voluntary or coerced, or true or false.
The Commonwealth filed an interlocutory appeal in the Superior Court, arguing that the trial court had erred in ordering that Dr. Leo could testify, because his proffered testimony would invade the credibility-assessing function of the jury... In an opinion filed pursuant to Pennsylvania Rule of Appellate Procedure 1925(a), the trial court reasoned that, because Dr. Leo would not be permitted to testify "as to any case specific allegations with regard to [Appellee's] confession or the interrogation methods used by police in this particular case" and would not be permitted to offer opinion testimony as to the truthfulness of Appellee's confession, the jury would remain the ultimate arbiter of the credibility of Appellee's confession.
Although this Court has not previously ruled on the admissibility of expert testimony concerning false confessions, courts in other jurisdictions have done so. Many have held such testimony inadmissible. For example, in United States v. Benally, 541 F.3d 990, 993 (10th Cir.2008), the Tenth Circuit Court of Appeals upheld a district court's refusal to admit a psychologist's expert testimony concerning whether false confessions occur, and if they do occur, why they occur. The defendant-appellant had testified that his confession was false and claimed that it had been prompted by federal agents' coercive tactics... In rejecting the defendant-appellant's proffered expert testimony, the Tenth Circuit held as follows:
[The psychologist's expert] testimony inevitably would encroach upon the jury's vital and exclusive function to make credibility determinations. While [the defendant-appellant] emphasizes that [the psychologist expert] would not have opined as to whether she believed [that he had] confessed falsely, with or without the opinion, the import of her expert testimony would be the same: disregard the confession and credit the [defendant-appellant's] testimony that his confession was a lie. Testimony concerning credibility is often excluded because it usurps a critical function of the jury and because it is not helpful to the jury, which is capable of making its own determination regarding credibility.
In United States v. Jacques, 784 F.Supp.2d 59, 60 (D.Mass.2011), a district court declined to admit the defendant's proffered expert testimony concerning the existence of false confessions generally and the features of the defendant's specific interrogation that allegedly increased the risk of a false confession. Citing Benally, supra, the court concluded, inter alia, that the proffered expert testimony was contrary to the well-established rule that an expert cannot offer an opinion as to a criminal defendant's guilt or innocence: "An opinion that a defendant's [confession] is unreliable cannot be logically disconnected from the implicit opinion that the defendant is, in fact, not guilty." Jacques, supra at 63 (emphasis in original).FN14 See also Brown v. Horell, 644 F.3d 969, 978, 982-83 (9th Cir.2011) (in denying a petition for habeas corpus, upholding the exclusion of expert testimony as to interrogation methods that tend to produce false confessions, where the trial court had concluded that the defendant's explanation for his allegedly false confession, to wit, a threat of violence against another person, was within the jury's experience); State v. Free, 351 N.J.Super. 203, 798 A.2d 83, 95-96 (App.Div.2002) (holding that the trial court abused its discretion in admitting expert testimony as to false confessions and interrogation techniques because, inter alia, it was not scientifically reliable, it was of no assistance to the jury, and the jury would recognize that coercive methods have the potential for causing a false confession).
Appellee cites three cases in which expert testimony as to false confessions was determined to be admissible. See Appellee's Brief at 17-18 (citing United States v. Hall, 93 F.3d 1337 (7th Cir.1996); Boyer v. State, 825 So.2d 418 (Fla.Dist.Ct.App.2002); and Miller v. State, 770 N.E.2d 763 (Ind.2002)). In Hall, the defendant-appellant's theory of the case was that he had falsely confessed due to a personality disorder that made him susceptible to suggestion and pathologically eager to please. Id. at 1341. The district court excluded expert testimony from a social psychologist regarding false confessions and coercive interrogation techniques, as well as expert testimony from a psychiatrist who had examined the defendant-appellant regarding his susceptibility to interrogation techniques and his propensity to give a false confession. Id. at 1341, 1345. The Seventh Circuit vacated the defendant-appellant's conviction, concluding that the excluded expert testimony at issue "went to *764 the heart" of the defendant-appellant's defense.FN15 Id. at 1345; see also Boyer, supra at 419-20 (in reversing the trial court's exclusion of expert testimony as to the phenomenon of false confessions and police interrogation techniques, quoting Hall for the proposition that the expert testimony "would have let the jury know that a phenomenon known as false confessions exists, how to recognize it, and how to decide whether it fit the facts of the case being tried"); Miller, supra at 774 (reversing the trial court's exclusion of expert testimony as to the psychology of false confessions because the testimony "would have assisted the jury regarding the psychology of relevant aspects of police interrogation and the interrogation of mentally retarded persons, topics outside common knowledge and experience").
After careful review of relevant opinions from courts of other jurisdictions, as well as our own precedent, we are not persuaded by the rationale of those courts that have admitted expert psychological/psychiatric testimony regarding the phenomenon of false confessions and police interrogation techniques. Rather, we conclude, in agreement with the Tenth Circuit Court's decision in Benally, supra at 995, that expert testimony such as the proposed testimony of Dr. Leo constitutes an impermissible invasion of the jury's role as the exclusive arbiter of credibility.
This conclusion is not altered by the fact that the trial court's order barred Dr. Leo from offering opinion testimony as to whether Appellee's particular confession was, in fact, false. General expert testimony that certain interrogation techniques have the potential to induce false confessions improperly invites the jury to determine that those particular interrogation techniques were used to elicit the confession in question, and hence to conclude that it should not be considered reliable. Accordingly, we cannot conclude that Dr. Leo's proposed testimony would merely serve a pedagogical function.
Furthermore, were the defense permitted to offer Dr. Leo's testimony concerning interrogation techniques that might lead to false confessions, it is highly likely that the Commonwealth would seek to present rebuttal expert testimony that the same techniques elicit true confessions--and elicit true confessions in substantially greater numbers than false confessions. We cannot conclude that expert testimony as to such generalities would help the jury to understand the evidence presented or to determine a fact in issue, to wit, the veracity of Appellee's confession. Ultimately, we believe that the matter of whether Appellee's confession is false is best left to the jury's common sense and life experience, after proper development of relevant issues related to, inter alia, the particular circumstances surrounding the elicitation of his confession, using the traditional and time-honored techniques of cross-examination and argument.
Accordingly, we reverse the order of the Superior Court and remand the matter to the court of common pleas for further proceedings not inconsistent with this opinion."
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Does interrogating a suspect in a police car create a custodial environment?
In Gardner v. State (March 2014) the Court of Appeals of Texas, Houston found that the mere fact of questioning a suspect in a police car did not automatically create a custodial environment. The court stated in their opinion that "The officers escorted Gardner to avoid any interference with the officers executing the search warrant. The record supports the trial court's finding that the officers did not use handcuffs. Gardner willingly accompanied the officers to the patrol car for both interviews. During the first interview, Gardner did not unequivocally state that he wanted to consult an attorney. The officers reiterated during the interview that Gardner was free to end the interview and leave the patrol car at any time. Consistent with the trial court's finding, the video recording shows that when Gardner finally stated that he did not want to continue the interview without an attorney present, the officers ended the interview. Gardner did not ask the officers for a telephone at any time during the interviews, and the officers did not refuse to allow Gardner to use the telephone. And, while it may have been inconvenient for Gardner to leave the house due to the number of patrol cars blocking the exit, nothing in the record shows that the officers intended to continue to detain Gardner after they had finished executing the warrant."
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Confession voluntariness - lying about the evidence
In Jefferson v. State (July 2014) the Supreme Court of Nevada upheld the lower court's decision to admit the defendant's confession. In this case the defendant argued that
" the district court erred in denying his motion to suppress the statements he made to law enforcement. He argues that his confession was involuntary because he was subjected to repeated and prolonged questioning, as well as deceptive interrogation techniques. From the court's opinion:
"We conclude that substantial evidence supports the district court's conclusion that Jefferson's confession was voluntary. Jefferson, an adult, does not claim that he misunderstood what was happening; he responded cogently to the detectives' questions; his interrogation began with an explanation of his Miranda rights; it took place at a reasonable time (9:00 p.m.) and lasted only 45 minutes; and, while one of his hands was handcuffed to a bar, he was free to leave any time for water or to use the restroom.
Additionally, Jefferson's argument that his confession was rendered involuntary by the detectives' deceptive interrogation techniques is unavailing. Jefferson argues that the detectives misrepresented DNA evidence by exaggerating what DNA evidence could reveal to them and the time frame in which they would learn the information. However, "an officer's lie about the strength of the evidence against the defendant is, in itself, insufficient to make the confession involuntary." ... The question is whether the tactics " 'interject[ed] the type of extrinsic considerations that would overcome [Jefferson's] will by distorting an otherwise rational choice of whether to confess or remain silent.' ... In this case, such tactics would not likely overcome Jefferson's will because, if Jefferson was truly innocent, he would not be concerned that DNA evidence would implicate him. Rather, he would know that it would exonerate him. Thus, nothing about the detectives' tactics appears coercive or likely to produce a false confession.
Jefferson's arguments that the detectives impermissibly implied that the prosecutor would be informed that he refused to cooperate, and threatened to take away his children are equally unavailing. The detectives indicated that if the DNA showed something different than what Jefferson had told them, then the DA would be aware of the discrepancy, which would likely be bad for Jefferson. But that is not the equivalent of a threat to inform the DA that Jefferson was not cooperating. Likewise, the detectives told Jefferson that, given the allegations against him, he might not be able to be around his children for a while. However, this statement was only made in response to Jefferson's own questions regarding his children. This was not a coercive tactic to get Jefferson to confess, but merely a true statement of the current situation."
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Georgia Supreme Court rejects the idea that a suggestion that the shooting was an accident constitutes a hope of leniency
In Smith v. State (June 2014) the Supreme Court of Georgia held that statements by the police detectives during a custodial interrogation to the effect that shooting the victim was an accident in response to the victim lunging at the defendant did not constitute a slightest hope of benefit that could render defendant's confession inadmissible. From their opinion the Supreme Court stated the following:
"At the time appellant made a statement to police, he was under arrest for the Perez robbery and suspected of the two other crimes. He was given his Miranda rights before the interrogation commenced and he waived those rights. Within the first twenty minutes of the interrogation, appellant admitted that he shot Justin Patel at the BP station. During the discussion of the BP incident, the police told appellant that there was a surveillance tape showing that the victim lunged at appellant before appellant shot him. The police made statements to appellant to the effect that the shooting was an "accident" in response to the victim lunging at appellant and appellant eventually made inculpatory statements.... Appellant contends the trial court erred in admitting the videotaped confession into evidence because he contends it was induced by the slightest hope of benefit "as the hope of lighter punishment was clearly implied by the [detective's] excusable accident theory," in violation of the former OCGA S 24-3-50. We disagree. "A hope of benefit generally arises from 'promises related to reduced criminal punishment--a shorter sentence, lesser charges, or no charges at all.' [Cit.]" ... At no point did detectives tell appellant that he would not be charged with murder, that he would be charged with a crime less than murder, or that he would receive lesser punishment if he confessed. In fact, appellant understood that he would be incarcerated for his actions because he twice asked about obtaining a bond and made statements to the effect that he knew he was going to jail. Under these circumstances, there was no violation of OCGA S 24-3-50."
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Court offers scathing rejection of false confession expert Dr. Alison Redlich
In People v. Oliver (July 2014) the Supreme Court, Kings County, New York rejected the testimony of false confession expert Alison Redlich. In their opinion the court stated the following:
"Dr. Alison Redlich, one of a small group of social scientists who have repeatedly proffered themselves as experts on the subject of false confessions, describes herself as an expert in "the areas of social influence, decision making, scientific methods, and specifically interrogation techniques and confession." She asserts that her testimony "will give jurors a more accurate understanding how to weight [sic] the confession itself and how to avoid using inaccurate cues and assumptions to judge the truthfulness of the confession and/or the defendant's testimony about his confession," yet her proffer makes no reference to the defendant at all, nor to the particular circumstances of this case. Instead, she has provided what appears to be a general treatise on the subject of false confessions. For that reason alone, her proposed testimony does not meet the threshold standard required by the Court of Appeals-that the proposed testimony be relevant to the particular facts of the case before the court.
Moreover, while Dr. Redlich has impressive academic credentials, there are serious reasons to question the extent of her expertise, the legitimacy of the theories she propounds, and her objectivity. The Bedessie court's recognition that a qualified professional may, in the appropriate case, provide testimony about the factors that could induce a person to testify falsely does not mean that every researcher who claims an expertise in this area should be permitted to testify.... In other words, the mere assertion by the proposed expert that she is in fact an expert is not a basis to admit her testimony.
Similarly, the Court is not required to accept Dr. Redlich's assertion that her theories are "generally accepted among scientists," especially since many of the researchers she includes in that group are the very researchers whose testimony has been consistently rejected by New York courts. ( See cases cited infra.). As some of those cases make plain, the "relevant scientific community" is not at all unanimous about false confession research, the methods employed by Dr. Redlich and her colleagues, and the conclusions they reach. Dr. Michael Welner, a board certified psychiatrist, is of the opinion that false confessions are "rare events," and that the only way to determine whether a confession is actually false is through DNA testing that disproves the guilt of the confessing defendant. People v. Teon Williams, supra. According to Dr. Welner, it is only through "rigorous psychological and psychiatric examinations" that a professional can determine whether a person is susceptible to confessing to a crime he did not commit. He dismisses the theories Dr. Redlich and her colleagues advocate as "soft science," pointing out that some of the research actually relied on newspaper reports of cases as sources of allegedly false confessions. People v. Lowery, supra. See also U.S. v. Wilson, NMCCA 200300734 (U.S. Navy-Marine Corps Court of Criminal Appeals 2007) (expert opined that Dr. Olfshe's theories were "not sufficiently tested," have an "unacceptably high rate of error," "depart from accepted standards," and are not "accepted in the relevant scientific community.").
There is even dissension among the researchers that Dr. Redlich cites. One of them, Dr. Saul Kassin, has conceded that there is no "scientific basis for distinguishing true from false confessions," that "further research in the field is sorely needed," and that lay people may be able to assess whether confessions are in fact false.... Dr. Redlich herself has admitted that her theories cannot be tested empirically.
An examination of Dr. Redlich's submission in this case underscores the wisdom of the decisions rejecting this particular brand of false confession testimony. Like the testimony proffered in Bedessie, Dr. Redlich's report is filled with speculation, unsupported theories, and advocacy rather than expertise. There is no empirical support for many of her assertions. For example, she maintains that there is "an alarmingly high incidence of wrongful convictions," and that "[a]pproximately 25%" of this unidentified number "involve false admissions." But her premise is itself unscientific. She does not quantify the supposedly "alarmingly high incidence" of wrongful convictions, does not detail how a conviction is determined to be "wrongful," and does not explain the method or formula by which a confession is determined to be false.
There is similarly no support for Dr. Redlich's hypothesis that jurors are incapable of entertaining the possibility that a confession could be false. The jury system is premised on the ability of citizens to determine whether particular evidence is true or false. Perhaps the best refutation of Dr. Redlich's mistrust of a jury's competence in this regard is a case in which she had first-hand involvement, Edmonds v. Mississippi, supra. The defendant in that case, a juvenile, confessed to helping his stepsister kill her husband. The trial court precluded Dr. Redlich's testimony as insufficiently reliable, a decision that the appellate court upheld, while reversing Edmonds' conviction on other grounds and remanding for a new trial. The jury at the second trial heard the evidence of the defendant's confession and acquitted him, obviously fully capable of weighing the evidence without any assistance from Dr. Redlich.
Another pillar of Dr. Redlich's thesis is the role that police interrogation methods play in false confessions. This part of her theory also suffers from multiple flaws. A review of her curriculum vitae reveals that Dr. Redlich has never worked in any law enforcement capacity, nor does she articulate the basis of her theoretical expertise. She is nonetheless critical of law enforcement in general, and police interrogations in particular, which she describes as "confidence games" with "strategies based on the manipulation and betrayal of trust." Given these views, it is difficult to envision an interrogation of which she would approve. In any case, while she is a critic of the police, the Court does not accept her statement that she is an expert in police methods, at least insofar as this case is concerned.
Dr. Redlich does not appear to know anything about police practices in New York City, as demonstrated by her descriptions of particular interrogation methods. She assumes that all police departments use the same interrogation methods, including the "Reid Technique," which Dr. Redlich labels the "bible of police interrogation," as well as a Behavioral Analysis Interview, the importance of which, Dr. Redlich opines, "cannot be understated [sic]." Dr. Redlich also maintains, again without explanation, that "police have developed methods to get suspects to talk outside of Miranda.' " Another hallmark of all police questioning, according to the doctor, is a three phase process: 1)" custody and isolation" in which the suspect is "detained in a small room" to "experience the anxiety, insecurity, and uncertainty" of police questioning; 2) "confrontation," in which the suspect is "presumed guilty," "told (sometimes falsely) about the evidence" against him, and is "prevented from denying his/her involvement in the crime," and; 3) "minimization," where a "now sympathetic interrogator attempts to gain the suspect's trust," offers "face-saving excuses," and "implies" that the suspect will get a shorter sentence if he confesses, and a longer one if he does not.
Conspicuously absent from Dr. Redlich's submission is any scientific connection between these techniques and false confessions; there are no statistics about the number of false confessions caused by the utilization of the techniques. See People v. Lowery, supra. More important, there is simply no evidence that the New York City Police Department uses the "Reid technique," let alone any evidence that the investigating detective in this case did. In fact, Detective Angst's testimony on cross examination demonstrates exactly the opposite:
"Q: And when you first became a detective you went through extensive training in interrogation techniques and other aspects of detective work, right?
Q: When did you first undergo interrogation training?
A: When I got to the detective squad.
Q. What did that training consist of?
A: Just mostly paperwork and interviews.
Q: Were you trained in methods of trying to get suspects to make admissions and confessions?
Q: You never got training in that?
A: In a method, no.
Q: Now, detective, have you ever been trained in isolation techniques for a suspect?
The detective also denied that he said anything to the defendant about the consequences of a conviction for killing or injuring the child, or anything about a possible sentence. The fact that the detective did not employ the techniques that are central to Dr. Redlich's theories is yet another reason to preclude her testimony.
Nor does this case have any of "commonalities" that Dr. Redlich says exist in so-called "proven" false confession cases. According to her, false confession cases typically involve juveniles or people with mental impairments, and are characterized by very long interrogations where the suspect is isolated and deprived of sleep. The police employ deceit and trickery, and there is often little or no corroborating evidence. Even accepting all of Dr. Redlich's analysis at face value--a dubious proposition, since this section is also long on anecdotes and generalizations and short on science--none of her theories has anything to do with the facts of this case. See Rathbun v. Scribner, 2010 U.S. Dist. LEXIS 31520 (C.D.Cal.2010).
The defendant is not a juvenile, and has no mental or intellectual deficits. He was never isolated or in police custody; on the contrary, he appeared at the precinct of his own accord, with his family, in the middle of the day. The only person who was deprived of sleep appears to be the investigating detective, who did not know the defendant was coming in, and was just leaving the precinct after having worked for two straight days. The interrogation itself was slightly less than three hours, well below what Dr. Redlich deems excessive. Moreover, there is evidence that corroborates the details of the defendant's confession. Other witnesses are apparently prepared to say that the defendant was alone with the baby at the time the fatal injuries were inflicted. Most significant, the defendant's recorded telephone conversation with his relative confirms what he said to the police.
Thus, even assuming for argument's sake that Dr. Redlich's proposed testimony had the requisite acceptance in the relevant scientific community, it has no relevance at all to this case. It would not aid the jury at all, and meets none of the criteria outlined in Bedessie. The Court therefore denies the defense application to introduce her testimony.
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Electronic recording of the confession is not required
In Carmical v. Norman (August 2014) the US District Court, E.D. Missouri, ruled that electronic recording of interrogations is not required, stating that, "... the right against self-incrimination does not require police officers to record confessions electronically. See Reinert v. Larkins, 379 F.3d 76, 94 n. 4 (3d Cir.2004) ("Insofar as Reinert invokes the Fifth and Sixth Amendments of the Federal Constitution, he invokes a purported federal right to have a custodial interrogation recorded. He does not, however, cite any authority for this proposition; again there is none."); United States v. Dobbins, 165 F.3d 29 (6th Cir.1998) ("federal law does not require that a state electronically record custodial interrogations and confessions"); United States v. Owlboy, 370 F.Supp.2d 946, 948-49 (D.N.D.2005).
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Bible in the interrogation room is not coercive
In Mauldin v. Cain (August 2014) the US District Court, E.D. Louisiana upheld the lower court's decision not to suppress the defendant's incriminating statements and to reject the suggestion that the presence of a Bible in the interrogation room was coercive. In their opinion the court stated that, "Contrary to Mauldin's argument, defense counsel raised the issue of the Bible in the chair next to Mauldin during the police interview. The record reflects that both the prosecutor and defense counsel questioned the officers about the Bible, described as a "little Gideon Bible" that was on the chair next to Mauldin and which could be seen in parts of the video. Sergeant Troy Tervalon testified that he placed the "small version" of the Bible in the chair before the interrogation started. He stated that he put it there so that Mauldin's "conscience would kick in, to tell the truth." He indicated that he said nothing to Mauldin about the Bible and placed it there before Mauldin was brought into the room. It was just a technique he used.
The record demonstrates that Mauldin's counsel did take issue with the presence of the Bible during the interview and included the argument to bolster the alleged coercive circumstances forming the basis of the motion to suppress the confession. Mauldin's suggestion otherwise is without factual support.
In addition, there is no law to suggest that the mere presence of the Bible would have been sufficient for counsel to establish coercion of the confession. See Williams v. Norris, 576 F.3d 850, 868-69 (8th Cir.2009) (references from the Bible and appeals to God are not alone coercive); Williams v. Jacquez, No. 05-0058, 2011 WL 703616, at *24 n. 19 (E.D.Cal. Feb. 19, 2011) (officers indicating during interview that the Bible instructs that a person tell the truth), order adopting aff'd, 472 F. App'x 851 (9th Cir .), cert. denied, --- U.S. ---, 132 S.Ct. 378 (2012). Thus, counsel was under no professional obligation to re-urge that point by separate motion to suppress when the argument was already rejected by the Trial Court. See Smith v. Puckett, 907 F.2d 581, 585 n. 6 (5th Cir.1990) ("Counsel is not deficient for, and prejudice does not issue from, failure to raise a legally meritless claim."); see also, Koch v. Puckett, 907 F.2d 524, 530 (5th Cir .1990) (concluding that "counsel is not required to make futile motions or objections."); see also, Wood v. Quarterman, 503 F.3d 408, 413 (5th Cir.2007) (" '[f]ailure to raise meritless objections is not ineffective lawyering; it is the very opposite.' ") (quoting Clark v. Collins, 19 F.3d 959, 966 (5th Cir.1994)).
Relief on this claim was properly denied by the state courts and the denial was not contrary to Strickland. Mauldin is not entitled to relief on this point."
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