Legal Updates Summer 2015

Legal Updates Summer 2015

Court admonishes investigator for not following Reid guidelines

In People v. Elias (June 2015) the Court of Appeal, First District, Division 2, California pointed out several prescribed Reid procedures that were not followed by the investigator, resulting in a confession that was found to be involuntary:

  1. A non-accusatory interview was not conducted before initiating an interrogation
  2. The investigator misrepresented the case evidence when questioning a 13 year old
  3. There was no corroboration of the incriminating statement
  4. There was contamination - disclosing details of the crime

In this case the court concluded that "the prosecution failed to prove by a preponderance of the evidence that Elias's inculpatory statements were voluntary, and the trial court therefore erred in receiving the statements in evidence." In this case a 13 year old had made incriminating statements about sexually touching a child under the age of 14.
The interrogation of the defendant took place in an office in the elementary school building; lasted about 20 to 30 minutes; and, concluded when the investigator "suggested Elias might have touched A.T.'s vagina because he found it exciting or just because he was curious," Elias rejected the first suggestion and, to [the investigator's] comment, "[b]ut you did it," said, "[f]or curiosity." Elias thus accepted [the investigator's] alternative theory that he touched the bare skin of A.T.'s vagina for three to four seconds, in the midst of playing a video game with her brother, merely "out of curiosity."

In reviewing the questioning of the defendant the Appeals Court pointed out several times that the investigator did not follow the guidelines for proper interview and interrogation procedures outlined our book, Criminal Interrogations and Confessions.
In their opinion, the Appeals Court stated that "no evidence corroborated his incriminating statements." In their discussion of the issue of corroboration the court stated:

"The best form of corroboration is the suspect's revelation of information only a guilty suspect would know. (Inbau et al., Criminal Interrogation, supra, at pp. 354-356.) Thus "[t]he admissions, 'I shot and killed Mr. Johnson' or 'I forced Susie Adams to have sex with me' may be elicited from a juvenile (or adult) suspect. These admissions become useful as evidence if they are corroborated by (1) information about the crime the suspect provides which was purposefully withheld from the suspect, and/or, (2) information not known by the police until after the confession which is subsequently verified." (Id. at p. 255.) Corroboration is "[t]he ultimate test of the trustworthiness of a confession." (Ibid.)"

The court went on to state later in their opinion that "One of the ways police facilitate false confessions is by disclosing specific facts regarding the crime during the interrogation process, inducing the suspect to adopt these facts and thus accurately "confirm[ ] the preconceived story the police seek to have him describe."... The use of this suggestive technique--referred to as "contamination" has been found to be coercive and to have overcome the will of subjects, particularly those who are young or otherwise vulnerable. From the court's opinion:

"As one of the authors of Criminal Interrogation has said, "[I]t is imperative that interrogators do not reveal details of the crime so that they can use the disclosure of such information by the suspect as verification of the confession's authenticity. In each case there should be documented 'hold back' information about the details of how the crime was committed; details from the crime scene; details about specific activities perpetrated by the offender; etc. The goal is to match the suspect's confession against these details to establish the veracity of the statement." (Combating Contamination, at pp. 847-848, quoting Joseph P. Buckley, The Reid Technique of Interviewing and Interrogation, in Tom Williamson ed., Investigative Interviewing: Rights, Research, Regulation 190, 204-05 (Willan 2005).)"

In discussing the investigator's use of deception during the interrogation (misrepresenting the evidence) and the fact that such a practice is inappropriate for this juvenile, the court quotes from Criminal Interrogation and Confessions:

"The authors of the text expounding the Reid Technique candidly admit that "[m]any of the interrogation techniques presented in this text involve duplicity and pretense. To persuade a guilty suspect to offer an admission against self-interest, the investigator may have to falsely exaggerate confidence in the suspect's guilt, sympathize with the suspect's situation, and display feelings toward the suspect or his crime that are far from genuine. The investigator may suggest a face-saving motive for the commission of the crime, knowing it is not true. In some cases an investigator may falsely imply, or outright state, that evidence exists that links the suspect to the crime." (Inbau et al., Criminal Interrogation, supra, at p. 351.) But, as we have said, the text makes it eminently clear that such deceptive techniques "should be avoided when interrogating a youthful suspect with low social maturity " because such suspects "may not have the fortitude or confidence to challenge such evidence" and "may become confused as to their own possible involvement, if the police tell them evidence clearly indicates they committed the crime." (Id. at p. 352, italics [emphasis] added.)

Later in their opinion the court points out that the investigator violated "a basic tenet of the Reid Technique meant to reduce the likelihood of inducing false confessions" - conducting a non-accusatory interview of the defendant before engaging in an interrogation. The court further stated:

"As underscored in the opening pages of the current edition of the text expounding the Reid Technique, an "interview" is "nonaccusatory," its purpose "is to gather information," "it may be conducted early in an investigation," "it may be conducted in a variety of environments," the conversation should be "free flowing and relatively unstructured," and "the investigator should take written notes." (Inbau et al., Criminal Interrogation, supra, at pp. 3-4.) On the other hand, an "interrogation" is "accusatory" and "involves active persuasion," it "is conducted in a controlled environment" and "only when the investigator is reasonably certain of the suspect's guilt," and the investigator "should not take any notes until after the suspect has told the truth and is fully committed to that position." (Id. at pp. 5-6, italics [emphasis] added.)

"Proponents of the Reid Technique, and virtually all interrogation manuals, counsel that interrogation should almost never be undertaken without the benefit of a previous interview: "Absent a life-saving circumstance the investigator should conduct a non-accusatory interview before engaging in any interrogation. During the interview the investigator can establish rapport with the suspect, assess their credibility, develop investigative information and establish a behavioral baseline. Also, during the interview the suspect is more likely to reveal information that can be used to develop an interrogation strategy." (quoting from the Reid Position Paper at

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Value of video recording interrogation to determine competency to waive rights

In People v. Johnson (July 2015) the Monroe County Court, New York, rejected the defendant's claim that due to his intellectual disability his incriminating statements should have been suppressed because he was incapable of making a knowing, voluntary and intelligent waiver of his Miranda rights. The court's review of the videotaped interrogation was critical in reaching this decision.

From the court's opinion:

"Doctor Jerid Fisher examined defendant (for the defense) to assess his ability to understand the five prongs of Miranda and determine whether he was capable of making a knowing, voluntary and intelligent waiver of his Miranda rights on November 14, 2013. ... The doctor testified that a diagnosis of mental retardation requires an IQ that falls between 55 and the low 70's, but that the diagnosis cannot be based on IQ alone. He testified that the diagnosis must also be based on a person's functional capacities and adaptive skills, such as a person's ability to communicate and function in the community. Mentally retarded people, according to Doctor Fisher, are limited in their social actions and the kind of work they can perform. Some hallmark traits of mental retardation, says Doctor Fisher, include pronounced limitations in abstract thinking, profound impairment in the executive thinking, i.e., planning and organizational difficulties, and consideration of consequences. The doctor also testified that mentally retarded people tend to be acquiescent, or readily willing to agree with almost anything, impulsive, and possess a limited ability to understand behavioral risks. He testified that mentally retarded people frequently require support to live in the community and very often live with their families who assume much of the responsibility for their customary daily activities, such as handling and managing their money, shopping, cooking, and transportation. Doctor Fisher concurred with "what [experts in] the field say[ ] about mental retardation and the capacity to appreciate and waive all five prongs [of Miranda]" that mentally retarded people have "an inability to understand and make a knowing [Miranda ] waiver"... . He emphasized that one study found that "[e]ven individuals with IQ's between 71 and 88 were found to lack the necessary understanding of the rights ..."

The doctor testified, based upon his review of defendant's interview with investigators Klein and Kamykowski ... , that Investigator Klein downplayed the significance of the Miranda warnings in his preamble and incorrectly interpreted defendant's answers regarding his educational background, not truly appreciating the extent of defendant's intellectual disability. The doctor testified that Investigator Klein's total presentation of the five prongs of Miranda spanned approximately twenty-three seconds. He felt that, given defendant's intellectual limitations, the investigator's administration of Miranda was inadequate to insure that defendant sufficiently understood the rights he was waiving. According to doctor Fisher, to adequately administer Miranda to an adult person with this level of cognitive deficiency, "ideally what should have happened was after each prong was read to [defendant] [the investigators] should have said ... what does that mean? What's the implication of that? Because that goes to the depth of processing question[ ]" .... Indeed, the doctor went so far as to say, "given [defendant's] intellectual deficits[,] ... his processing abilities ... preclude him from ... th[e] level of understanding ... [a person of normal intelligence] would have ... [when] ... having ... Miranda Warnings read to [him][ ]" ....

Doctor Trica Peterson testified for the People in rebuttal.... Doctor Peterson testified that a person's IQ is "not a good indication of someone's overall functioning in the world ... [S]omebody with low intellectual functioning ... may do very well in the world and be able to navigate ... common sense, real world situations better than ... would be expected ..." (tr at 154). The doctor elaborated by reference to defendant's adaptive functioning scores. She testified that defendant's adaptive functioning scores from 2002 were 90 and 83 and that the State benchmark to qualify for services through the Office for People with Developmental Disabilities is 70.

Doctor Peterson testified that there is "no broad brush to say intellectual disability equals lack of Miranda (sic) knowledge; it's oversimplifying[ ]" .... She testified that "there's a wide range of ability within intellectual disabilities" ... and that 10 people with the same IQ could have very different levels of functioning in different circumstances. For this reason, in Doctor Peterson's opinion, in assessing a suspect's ability to understand Miranda it is vital to obtain as much information as possible about the suspect's interactions with the police.

With respect to defendant's behavior and speech during his videotaped interview (emphasis added) at the PSB, the doctor noted that the defendant "spoke at a normal conversational tone and speed[,]" that he was able to "process the ... questions [he was asked] and respond in a fairly normal pace" and that "there weren't long delays between a question being asked and him responding[ ]"... She also testified that defendant "use[d] some fairly advanced vocabulary terms during the interrogation video[ ]" such as "traumatized," "tragedy," "devastated," and "composure," .... and that he used these words without prompting and in proper context and placement in the conversation.

Doctor Peterson concluded, based upon the totality of the evidence she reviewed, to include consideration of defendant's subnormal IQ as but one factor, that the defendant is capable of making a knowing, voluntary, and intelligent waiver of his Miranda rights.

There is no dispute here that the defendant was subjected to custodial interrogation, and that the primary statement sought to be introduced at trial is the product of that interrogation.... The defendant argues that his statements should be suppressed primarily on two grounds: (1) because he was unable to make a voluntary and knowing waiver of his Miranda rights due to his limited mental capacity and the specific circumstances of the interrogation; and (2) because his intellectual disability, combined with improper interrogation tactics, rendered his statements involuntary. The Court disagrees.

While the facts here are generally analogous to Knapp, for the reasons that follow the Court finds that the credible evidence presented at the hearing--to include, perhaps most significantly, the videotaped interrogation of defendant (emphasis added) with investigators Kamykowski and Klein--sufficiently distinguishes this case from Knapp to warrant the conclusion that defendant's November 14, 2013 custodial statements accorded with the requirements of Miranda under the particular circumstances of this case.

The totality of the circumstances surrounding the interrogation here, in this Court's view, warrants denial of suppression on both grounds alleged by defendant.

The Court's review of the video, in view of the totality of the circumstances and evidence presented, reveals that the defendant's oral statement was voluntarily made during a custodial interrogation after a proper advisement of Miranda rights and a knowing, voluntary, and intelligent waiver of those rights. The Court credits the testimony of investigators Kamykowski and Klein, and the videotape bears out, that nothing about defendant's presentation or responses to their questions suggested that he lacked the capacity to appreciate or did not understand what was taking place. Defendant was appropriately engaged and responsive to all the questions he was asked throughout the interview. Investigator Klein inquired with defendant regarding his level of education, and in observing defendant's demeanor, responses, and reactions at that time, besides having previously interviewed defendant at length on a prior occasion, the Court finds that defendant's overall behavior revealed no sign posts or queues that would or should have suggested to the investigator that defendant needed a more detailed and simplified explanation of Miranda ....

Nor, in reviewing the videotape, does the defendant's demeanor, speech pattern, or manner of responding to the questions posed to him during the interrogation suggest, either individually or collectively, that he lacks the depth of processing to understand his Miranda rights as they were administered, relative to the context and overall tenor of the interview in its entirety.

Equally pertinent on review of the videotape is the readily apparent conversational flow of the interrogation, as well as defendant's seemingly effortless summons and use of certain more sophisticated terms (as referenced in Doctor Peterson's testimony, supra ) in context during its course. Moreover on this point, although not highlighted by the experts or counsel, the Court also notes defendant's apt use of the term "decisive" at approximately 5:04:10 p.m on the interview monitor. Under the circumstances and within the context of the interrogation at that time, there may have been no better choice of words.

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10-year-old can make voluntary waiver of rights and can understand the wrongfulness of his acts

In People v. Joseph H. (June 2015) the Court of Appeal, Fourth District, Division 2, California, upheld the lower court's decision that a 10-year-old understood the wrongfulness of his acts (shooting his father in the head) "despite the statutory presumption of incapacity" and voluntarily waived his Miranda rights. From the Court of Appeal's decision:

"After being taken to the police station, the minor was interviewed by Detective Hopewell, a detective assigned to the Sexual Assault and Child Abuse Unit, whose role was to interview Joseph and his siblings. Prior to admonishing Joseph of his Miranda rights or interviewing him about the shooting itself, the detective asked him questions pursuant to a Gladys R. questionnaire, designed to determine if an arrestee under the age of 14 understands the wrongfulness of his or her actions, within the meaning of section 26. Following that questionnaire, the detective asked Joseph if stealing candy from a store without paying for it was right or wrong; Joseph replied it was wrong. She then asked Joseph to give her an example of doing something right and doing something wrong. Joseph responded that doing wrong things could hurt people, while it was good to care, and to help people. After asking him for an example of something that he would do that would be right, she asked Joseph to give an example of doing something that was wrong, to which Joseph replied, "Well, I shot my dad." Shortly thereafter, the detective advised Joseph pursuant to Miranda and proceeded to question him about the shooting.

The minor refers to the videotape and transcript of the interview as support for the assertion that Joseph fundamentally misunderstood the nature of Miranda and his right to be free of coercive confessions. He argues that his equivocal response when the detective asked if understood what she was saying, his body language, and his hesitation showed he did not understand what was being explained. We disagree.

Here, the minor points to his age, and the fact that he suffers from ADHD and other mental disabilities, to argue that he was susceptible to suggestion. The minor relies on the testimony of Dr. Geffner's opinion that "[H]aving borderline intellectual functioning and other cognitive deficits can make a person more easily suggestible." This may be true, but Dr. Geffner's suggestion that it was "possible" he was more easily suggestible, is not evidence that Joseph was, in fact, suggestible or confused. The detective repeatedly asked Joseph if he understood what she was explaining about his rights, and when he demonstrated misunderstanding, she provided additional explanation; Joseph's responses indicated he understood. Nothing in the record supports the premise that he was confused or suggestible.

The minor also argues that his communication deficits made it "self-evident that he would have had trouble effectively communicating his reservations and preserving his rights." The videotape of the interview shows he had no trouble communicating, aside from needing explanation of a few terms. In this respect, the detective was careful to follow up the explanation of his rights with questions to insure he understood what she was explaining, so the assertion he had difficulty communicating his reservations is not supported by the evidence.

Further, the record does not support the minor's assertion that his hesitation, confusion, and misunderstanding of the full scope of what it meant to "waive" his rights, showed involuntariness. To the contrary, the video shows he felt guilty for what he had done. Absent coercive conduct by police, and despite his young age, his ADHD, and low-average intelligence, the finding that Joseph voluntarily waived his rights, guaranteed by the Fifth Amendment, is supported by the record.

Pursuant to section 26, a minor under the age of 14 is presumed to be incapable of committing a crime. Thus, a finding of capacity is a prerequisite to an adjudication of wardship for a minor under 14... The presumption of incapacity may be rebutted by the production of "clear proof" that the minor appreciated the wrongfulness of the conduct when it was committed.... "Clear proof" means clear and convincing evidence.

In determining capacity pursuant to section 26, the juvenile court must consider the child's age, experience, and understanding.... A minor's knowledge of his act's wrongfulness may be inferred from the circumstances, such as the method of its commission or its concealment.

Here, Dr. Salter testified that Joseph knew the difference between right from wrong. The court heard the testimony of Drs. Geffner and Salter, and read all the reports and statements that were admitted into evidence, including Joseph's own statements that he understood right from wrong, and understood he would be punished when he did something wrong. The court also considered Joseph's age and the circumstances of the crime, including Joseph's planning of the event while lying in bed (when he decided to end the "father-son thing") and the fact he hid the gun under his bed to avoid getting caught. These factors support the trial court's finding.

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The effectiveness of an anticipatory invocation of the Miranda-based right to counsel

In Commonwealth v. Bland (May 2015) the Supreme Court of Pennsylvania found that, "to require a suspension of questioning by law enforcement officials on pain of an exclusionary remedy, an invocation of the Miranda-based right to counsel must be made upon or after actual or imminent commencement of in-custody interrogation." From the Supreme Court's opinion:

"This appeal centers on the nature of a valid invocation of the Miranda-based right to counsel, specifically, in terms of whether the right must be asserted in close temporal proximity to custodial interrogation or may be effectively invoked remotely from such questioning.

Appellee, Dennis Bland, Jr., allegedly shot and killed Keron Remberan in Philadelphia, then fled to his mother's house in Florida. After learning of Appellee's whereabouts, police obtained an arrest warrant and notified Florida law enforcement. Federal authorities in Florida detained Appellee, who was seventeen years old at the time, and he was placed in a juvenile facility to await extradition to Pennsylvania.

The day after Appellee's arrest, his father contacted the Defender Association of Philadelphia and apprised an attorney of his son's circumstances. The lawyer sent a form letter via facsimile to Florida counsel representing Appellee in connection with the extradition proceedings, asking that Appellee sign and return the document. The letter reflected a very clear putative invocation of the Miranda-based right to counsel, as follows:

* * *

Appellee signed the letter, and it was returned to the Defender Association, which forwarded copies to the Philadelphia Police Department's homicide unit and the Office of the District Attorney.

Subsequently, Appellee waived extradition and was escorted to Philadelphia, where he remained in police custody. Six days after Appellee had signed the form sent by the Defender Association while he was in Florida, a detective provided him with Miranda warnings. During ensuing questioning, Appellee ultimately confessed to perpetration of the killing, and, after later consultation with his father, he also provided a written confession.

Appellee filed a pre-trial motion to suppress his written statement, claiming that police violated his rights under Miranda, as well as under Article 1, Section 9 of the Pennsylvania Constitution, which, like the Fifth Amendment, protects against self-incrimination..... Thus, Appellee sought an exclusionary remedy..... After a hearing, the suppression court awarded relief and foreclosed the admission of Appellee's confessions into evidence at his forthcoming trial, without any independent treatment of state constitutional considerations.

In terms of the timing of Appellee's invocation, the suppression court relied on broad language from Miranda specifying that, if an individual "indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking[,] there can be no questioning." ... Applying this principle to Appellee's circumstances, the court determined that--because he had personally asserted his rights by signing the non-waiver letter--Appellee had made an effective invocation, and uncounseled interrogation was proscribed even six days later.

In response to Appellee's claim for approval of anticipatory invocations of a right to counsel under Article 1, Section 9 of the Pennsylvania Constitution, on the arguments presented, we find that the textual similarity between the United States and Pennsylvania Constitutions, the history of our abiding by the United States Supreme Court's Miranda regime as it has evolved, and the approach of other jurisdictions and salient policy considerations as reflected in our discussion above, favor continued alignment of our jurisprudence with that of its federal counterpart on the relevant point.

In summary, we hold that, to require a suspension of questioning by law enforcement officials on pain of an exclusionary remedy, an invocation of the Miranda-based right to counsel must be made upon or after actual or imminent commencement of in-custody interrogation.

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Court rejects claim that as a foreign student defendant did not understand the Miranda rights

In State v. Jallah (May 2015) the Court of Appeals of Ohio was asked by Jallah to suppress his oral custodial statements that he made to Cleveland State University police before he had counsel. He argued that his statements should be suppressed because he did not knowingly, intelligently, and voluntarily waive his Fifth Amendment rights. He did not claim that he was not given the Miranda warnings. Rather, he asserted that because he was a foreign student at Cleveland State University, and his country of origin is Liberia, he "was not in a position to fully comprehend the constitutional protections provided in this country." From the court's opinion:

"We note at the outset that the issue of whether Jallah was in custody is not in dispute as the state never disputed that Jallah was not in custody. Moreover, the issue of whether the officers gave Jallah Miranda warnings is also not in dispute as Jallah did not assert in his motion to suppress or at the oral hearing on his motion that he was not given his Miranda rights.

In his written motion to suppress, Jallah argued that "as a foreign student at the university, whose country of origin is Liberia, [he] was not in a position to fully comprehend the constitutional protections provided in this country that are not provided in his own homeland." Thus, he maintained that "[h]is ability to fully grasp his rights calls into question whether [his] waiver was in fact a knowing, intelligent and voluntary act[.]" At the hearing on Jallah's motion to suppress, defense counsel argued at the outset that "the crux of our argument pertains not necessarily to whether or not the officers in this case properly read the Miranda warnings to my client prior to him making a statement[.]" Defense explained that "[i]t has more to do, Your Honor, with my client's understanding of the Miranda warnings that were read to him in the context of his personal situation."

The trial court found that based on the totality of the circumstances, Jallah knowingly, voluntarily, and intelligently waived his rights to counsel and chose to speak to police. The court found that English is the official language of Liberia, and that Jallah had spoken English his entire life. The court further found that Jallah had been educated in the United States since he was nine years old. The court considered the fact that Jallah had a prior incident with police, where he was not arrested. The court found that the officers did not act "inappropriately or particularly aggressive." The court noted that the officers even allowed Jallah to go back in his dorm room, uncuffed, to look for his identification. The court found that Jallah spoke English well, based on the court's observations. The court found that Jallah was college educated. The court found that "the officer went over his rights, then broke it down in the most simple and straightforward language," and that Jallah "nodded yes" that he understood his rights and then chose to speak to police. The court concluded that on both occasions, first to Officer Stats and then "even more so" to Detective Secor, that Jallah knowingly, voluntarily, and intelligently waived his rights after the officers read him his Miranda rights.

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Court does not allow Dr. Craig Haney to testify about false confessions

In State v. Carlson (May 2015) the Supreme Court of Arizona upheld the lower court's decision to preclude the testimony of Dr. Craig Haney on false confessions. In this case Michael Jonathon Carlson was convicted of two counts of kidnapping and two counts of first-degree murder.

During trial, Carlson sought to have Dr. Craig Haney testify about the brutality in the Texas prison system when Carlson was incarcerated there and also regarding "personality and behavior characteristics" and "risk factors" that might explain why Carlson might have falsely confessed to the television reporter. Defense counsel also sought to have Dr. Haney testify that Carlson told him that he (Carlson) had falsely confessed. The court allowed Dr. Haney to testify regarding the Texas prison system, but precluded testimony that Carlson told Dr. Haney that he had falsely confessed and Dr. Haney's explanation for why Carlson might have done so.

For two reasons, we conclude that the trial court did not abuse its discretion. First, Carlson never established whether reasonable experts in the field of false confessions would, as part of their analyses, rely on the defendant's own statement that he falsely confessed and that certain factors caused him to do so. Other courts have held that an expert should not be able to submit inadmissible hearsay from a biased witness as a basis for an opinion..... Here, Carlson's statements were inadmissible, biased hearsay, and he failed to show that a reasonable expert would rely on them in forming an opinion.

Second, the trial court did not abuse its discretion in determining that allowing Dr. Haney to testify that Carlson said he falsely confessed would have put Carlson's statements before the jury cloaked with the implication that Dr. Haney believed those statements and relied on them, while shielding Carlson from the rigors of cross-examination. A defendant may not convey self-serving statements regarding the truth of his own confession through an expert's testimony. Nor may he have an expert opine on whether the defendant was telling the truth when asserting that his confession was false.

Carlson next argues that the trial court abused its discretion in preventing Dr. Haney from testifying about risk factors that would tend to make Carlson more likely to confess falsely. The court barred this testimony because Dr. Haney had not tested or examined Carlson to determine whether he exhibited the risk factors and did not base his potential testimony on any studies of his own or by others examining why a person would falsely confess in a voluntary news interview. His experience was in the police interrogation context.

The State did not challenge Dr. Haney's expertise in addressing why defendants may succumb to pressure to confess in police interrogations. But defense counsel admitted that Dr. Haney had no experience or publications dealing with voluntary confessions to the media. Nonetheless, given Dr. Haney's general expertise regarding false confessions, his "lack of specialization" should have gone "to the weight of the evidence rather than its admissibility [,] and '[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.' ... Nonetheless, the trial court did not abuse its discretion in excluding the testimony because Dr. Haney's testimony went to Carlson's general propensity to lie rather than to the mental or physical circumstances affecting the voluntariness of this confession.

We therefore conclude that the court's exclusion of Dr. Haney's testimony did not violate Carlson's right to present a defense or to a fair trial.

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Military court upholds denial of request for false confession expert assistance

In US v. Cannon (June 2015), US Army Court of Criminal Appeals, ruled that "appellant did not carry the burden of demonstrating his entitlement to false confession expert assistance." From the court's opinion:

"Appellant was charged with the premeditated murder of MG. After the convening authority denied defense's request for expert assistance, appellant motioned the trial court to compel the expert assistance of a forensic psychologist--a purported expert in the study of coercive interrogations. The psychologist did not testify during the motion hearing. Instead, appellant provided the curriculum vitae of the psychologist and outlined why the assistant was needed and how he would be used. In support of the motion, appellant signed an affidavit disavowing his confession. Also, prior to trial, a Rule for Courts-Martial... board diagnosed appellant with "Bereavement" under the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition. After both written and oral submissions, the military judge denied the defense's motion to compel the "false confession" expert consultant. Appellant now argues the military judge erred in denying his motion for expert assistance.

Here, as in Bresnahan, we find that the defense has failed to meet its evidentiary burden in demonstrating need. While the defense has offered some suggestions that appellant's confession may have been false (including appellant's self-serving affidavit disavowing his confession), defense counsel ultimately admitted the request for expert assistance was needed to help them determine the voluntariness and trustworthiness of the appellant's confession. Defense counsel does not provide evidence that appellant was susceptible to coercion, of low intelligence, or had any mental disorder or condition that might make it more likely that he confess falsely. While appellant was diagnosed with bereavement at his R.C.M. 706 board, defense counsel failed to link this assessment to the notion of false confession. In fact, defense counsel specifically stated it needs expert assistance to run a series of psychological tests to determine if appellant suffered from "intellectual deficits" impacting his ability to process information or if he was open to suggestibility without offering evidence to support this hypothesis.

Trial defense counsel also failed to proffer any information or professional studies related to false confession issues to demonstrate the link to this case and failed to present testimony of the expert on the record. Further, defense counsel justified their request for an expert assistant to review whether the interrogation method applied by the investigator was suggestive or coercive. We find defense's proffer does not demonstrate necessity and amounts to the "mere possibility of assistance" from a requested expert.... the third factor, defense counsel did not adequately meet their evidentiary burden to demonstrate why the defense team could not gather and present the evidence that the expert assistant would be able to develop in this case.

We agree with the ultimate conclusion that the defense motion for expert assistance should have been denied based on what the defense proffered.

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Competency and the value of video recording the interrogation

In State v. Woods (May 2015) the Supreme Court of Kansas upheld the lower court's decision to admit the defendant's incriminating statement and to reject his claim of incompetency. From the Supreme Court's opinion:

"At trial, Woods renewed his objection to the statements made during the taped interview "pursuant to pretrial motions."

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

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

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

But even if we assume Woods' low intelligence caused him to believe he was required to speak with the detective to learn about his wife's condition, this would be insufficient to render the confession involuntary without more.... ("[I]t is well established that low intelligence alone does not preclude a finding that an accused knowingly and voluntarily waived his or her Miranda rights."). Woods must show he was coerced into confession.... And here there is no evidence of coercion or inducement. In fact, the detective explicitly told Woods the officers were not there to give information.

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

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What constitutes interrogation?

In State v. Ramos (May 2015) the Supreme Court of Connecticut ruled that the defendant, while in custody, was not subject to "interrogation" requiring Miranda warning when officers questioned him in a police interview room by asking whether he was hurt, whether he was "okay" and "what happened" to him. From the Supreme Court's opinion:

"On appeal, the defendant first claims that the trial court improperly found that he was not subjected to custodial interrogation before receiving the Miranda warnings. The defendant contends that he was interrogated because Ferrucci, Rivera and Tirado knew that he was involved in the stabbing death of the victim. Specifically, they knew that witnesses had identified the defendant as being the victim's boyfriend, that the witnesses had heard the victim screaming and had then seen the defendant, covered in blood, holding a knife in the victim's apartment. The witnesses heard the defendant say that the victim was okay before he fled the scene. The defendant asserts that, "[w]hen posed to a suspect who is covered in blood and who has been identified by witnesses as the perpetrator of a stabbing, the question 'what happened to you?' is reasonably likely to elicit an incriminating response." We disagree.

Before addressing the merits of the defendant's claim, we set forth the applicable standard of review and governing legal principles. "Two threshold conditions must be satisfied in order to invoke the warnings constitutionally required by Miranda: (1) the defendant must have been in custody; and (2) the defendant must have been subjected to police interrogation." ... "A defendant in custody is subject to interrogation not only in the face of express questioning by police but also when subjected to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.... Whether a defendant in custody is subject to interrogation necessarily involves determining first, the factual circumstances of the police conduct in question, and second, whether such conduct is normally attendant to arrest and custody or whether the police should know that such conduct is reasonably likely to elicit an incriminating response.... A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response."

" In the present case, we conclude after thoroughly reviewing the record and the trial court's findings, that the trial court properly concluded that the purpose of the questioning of the defendant prior to the police giving him his Miranda warnings was to inquire into the defendant's general welfare, not to elicit an incriminating response. This conclusion is supported by the facts in the record. First, there is nothing in the record to indicate that the officers had any reason to believe that asking, "are you hurt, are you okay?" or, "what happened to you?" would evoke an incriminating response. ... Although the question, "what happened to you?" could constitute interrogation in certain contexts, under the circumstances of this case where the defendant was covered in blood, and still bleeding, the police should not have been expected to know their questions would have elicited an incriminating response as opposed to a response as to whether he needed medical attention. Furthermore, the defendant's response, "I stabbed myself," is a statement that relates to the cause of his injuries, and is not an admission of guilt. We thus reject the defendant's claim because the trial court properly concluded that Ferrucci, Rivera, and Tirado did not subject the defendant to interrogation before he was given his Miranda warnings.

The defendant also claims that his statements should have been suppressed because they were the product of police coercion. The defendant claims that his confession was coerced because, among other things, he was interrogated continuously for five hours in a windowless room without food, water, rest, or legal representation, and that he was physically weakened by his knife wounds and by an underlying medical condition. We are not persuaded."

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Human Lie Detector testimony inadmissible

In US v. Jackson (May 2015) the US Army Court of Criminal Appeals ruled "that a U.S. Army Criminal Investigation Command (CID) agent's testimony constituted impermissible human lie detector testimony and that this error materially prejudiced appellant's substantial rights." From the court's opinion:

"Appellant was convicted of twice touching his stepdaughter's genitalia through her clothing at or near Fort Hood, Texas, when she was fifteen years old....

The government called Special Agent (SA) K-O from CID to testify about appellant's confession and the circumstances surrounding her interview and interrogation of appellant. In her opening statement, the trial counsel told the panel that SA K-O would testify that during appellant's confession, his demeanor changed and "it was almost as if he was reliving it."

Special Agent K-O then went into considerable detail describing various verbal and nonverbal signs of deception. A significant portion of SA K-O's testimony was aimed at rebutting any inference that appellant's confession was false, coerced, or otherwise involuntarily made. Special Agent K-O discussed factors that could lead to false confessions, such as hunger, sleep deprivation, lengthy interrogations, yelling, and threatening. She then described how those conditions were not present in appellant's case.

After some time, appellant gradually admitted to SA K-O he touched his stepdaughter. In describing appellant's demeanor, SA K-O said, "it wasn't the same outgoing, talkative guy before [sic]. His voice was lowered. He had this faraway look in his eyes and he was just describing the whole thing. It was strange."

At trial, appellant never raised the issue of human lie detector testimony from SA K-O. Trial defense counsel extensively cross-examined SA K-O. For example, SA K-O agreed that some verbal and nonverbal signs of deception do not necessarily mean someone is actually being deceptive.

"It is 'the exclusive province of the court members to determine the credibility of witnesses.' " ... Our superior court "has been resolute in rejecting the admissibility of so-called human lie detector testimony, which we have described as: 'an opinion as to whether the person was truthful in making a specific statement regarding a fact at issue in the case.' " ... "If a witness offers human lie detector testimony, the military judge must issue prompt cautionary instructions to ensure that the members do not make improper use of such testimony."

Because appellant did not raise a human lie detector objection to SA K-O's testimony, we review his claim on appeal for plain error.

We must analyze SA K-O's testimony in light of our superior court's recent decision in Knapp. In that case, SA P, an agent from the Air Force Office of Special Investigations (AFOSI), questioned Knapp about having sex with Airman First Class (A1C) ES, who allegedly was too drunk to be conscious or consent...... Special Agent P testified that agents are "trained to pick up on nonverbal discrepancies.... Early on in the interview the accused would not make eye contact with me when we were talking about the sexual intercourse portion." Special Agent P further explained:

That is indicating to me that there is some form of deception going on. Prior to the intercourse, the accused was very detailed, very detail oriented, would look me in the eye, talk to me, and as soon as we got to the intercourse he would look away, look at the wall, look at the floor, not look at [the agents], and then immediately after the sexual intercourse timeframe he would kind of come back to us and be, once again, extremely detailed ... [l]ater on we had to ask him open-ended questions to try to get the truth out from him.... On cross-examination, SA P was asked why the interview did not end after Knapp repeatedly stated A1C ES was awake and willing when they began to have sexual intercourse, and SA P answered, "[l]ike I had stated earlier, sir, I'm trained on picking up nonverbal cues during interviews ... and the accused was giving off several nonverbal cues which made us believe that we needed to dig a little deeper." ... On re-direct examination, SA P testified about "large red sun blotches" appearing on Knapp's face when he spoke about the "actual incident."

Our superior court determined that SA P acted as a human lie detector.....
[I]t would have been permissible for SA [P] to describe Appellant's physical reaction to the interrogation questions.... It also would have been permissible for SA [P] to explain that this reaction caused him to continue questioning Appellant. But SA [P] went too far by declaring that he had been trained to divine a suspect's credibility from his physical reactions to the questioning. This testimony, suggesting that SA [P]'s evaluation of Appellant's denial of wrongdoing was based on his expertise in determining credibility, impermissibly " 'usurp[ed] the [members'] exclusive function to weigh evidence and determine credibility.' " ... The court held SA P's testimony to be plain and obvious error.

Here, in some ways, SA K-O's testimony is worse than SA P's testimony in Knapp. Special Agent K-O went into significantly more detail about her training and ability to spot verbal and nonverbal signs of deception than SA P apparently did. The testimony presented SA K-O as taking master's level courses with CIA agents at the National Center for Credibility Assessment. She testified about her ability to discern verbal and nonverbal signs of deception. Special Agent K-O told the panel that she would move from interview to interrogation mode when she saw sufficient signs of deception. And, when questioning appellant, she did just that after appellant did not answer well in response to shock-absorbing questions. Special Agent K-O testified she told appellant she thought he was lying when he denied the allegations. While describing appellant's eventual confession, SA K-O stated, "he got this really like faraway look in his eyes like he was reliving it." Finally, SA KO told the panel that she cuts off denials when a suspect exhibits behavior leading her to believe otherwise.

Cumulatively, this testimony constituted human lie detector testimony. Put another way, the human lie detector testimony in this case is not just SA K-O's single line "he got this really like faraway look in his eyes like he was reliving it." ... Following SA K-O's testimony about her ability to spot deception through demeanor, she then testified directly about appellant's demeanor. In ordinary circumstances, evidence about one's demeanor is often admissible.... However, SA K-O presented demeanor evidence through the lens of a human lie detector. Like SA P in Knapp, SA K-O went too far in her testimony.

The error in this case is plain and obvious. " '[A]n error is 'plain' if it is 'so egregious and obvious' that a trial judge and prosecutor would be 'derelict' in permitting it in a trial held today.'... The legal prohibition on human lie detector testimony was plain and obvious at trial and on appeal.)... Special Agent K-O repeatedly testified about her ability to spot deception, told the panel she told appellant she did not believe his denials, and bolstered appellant's confession by stating that he appeared to be "reliving" his crimes while confessing.

After careful consideration, we are convinced that the error was prejudicial."

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Confession found inadmissible due to promise of no jail and help finding shelter for defendant and her children to live

In Sharp v. Rohling (July 2015) the US Court of Appeals, Tenth Circuit, found that the state trial court erred in admitting the defendant's incriminating statements that she made after being advised that she would not go to jail - that she was just a witness. In this case a homeless advocate, David Owen, was killed. His body was found in the vicinity of a homeless camp. Four people, including Kimberly Sharp, were arrested for his murder. From the court's opinion:

"According to Sharp, she also headed into the woods to see what was going on. There she saw Owen on his knees and Hollingsworth with "an axe that he was going to [use to] kill him like that." Sharp told Hollingsworth, "[N]o, don't do that, don't do that. I can't be an accessory to this shit, you know. I can't do that. I got two kids...." She said Cornell then brought Hollingsworth a rope which was used to tie up Owen. Baker stuffed a rag in Owen's mouth, and the two men continued to beat him. Sharp told Wheeles [the investigator] that Cornell then burned all of Owen's possessions, including his pictures, notebooks, shoes, and socks. Hollingsworth and Baker then dragged Owen into the woods, and Sharp never saw Owen again.

After additional discussion during which Sharp continued to deny any participation, Wheeles specifically asked if she helped burn Owen's possessions. She denied helping burn or having Owen's phone or bag at any point. Sharp eventually admitted that she helped burn. When Sharp then asked if she was going to jail, Wheeles responded, "No, no, no, no, no, no, no, no, [no, no]. You are a witness to this thing as long as you do not do something dumb and jam yourself." He further explained that if she had been scared she should tell him and, "Just don't tell me no if I ask you something." Sharp then detailed her role in burning Owen's phones and notebooks.

.... Approximately 1 hour later Wheeles escorted Sharp to the camp where she re-enacted the events surrounding Owen's kidnapping and murder. During the re-enactment, Sharp told Wheeles that when Hollingsworth was standing over Owen with an axe, she had said to him, "No, don't kill him." Wheeles requested clarification, "Did you say 'No, don't kill him,' or did you say, 'No, don't kill him here?' " Sharp responded, "Don't kill him here." (Emphasis added.) Sharp also admitted that Hollingsworth had then asked her to bring him some rope, and she told Cornell to go get it. She further admitted that it was her idea to burn Owen's things so there would not be any evidence to tie her to the events. "I said we have to burn it 'cause I don't need the evidence. I don't want to be tied to this."
Following the re-enactment, Wheeles brought Sharp back to the station. He asked her a few more questions and then left her alone in the interview room with her children. Approximately 1 hour after returning to the station, Wheeles was notified that the district attorney's office had decided to charge Sharp. When Wheeles told her that she was going to be placed under arrest, she became angry and upset. Sharp accused Wheeles of lying to her and said that he had tricked her, telling him: "This is bullshit."

Ms. Sharp seeks relief under S 2254, arguing the state supreme court erred in considering the coercive effect of Detective Wheeles's promises during his interview with her. She argues Detective Wheeles induced her confession by promising leniency and assistance in finding shelter for her and her children.

Ms. Sharp's decision to continue providing details does not seem "to have been the result of calculation [instead of] coercion." Roman-Zarate, 115 F.3d at 783. Detective Wheeles's promise she would not go to jail induced her confessional statements because he made clear there would be no cost of disclosure. He gave Ms. Sharp a get-out-of-jail-free card, and she obliged by giving him more incriminating details. Ms. Sharp therefore did not simply "balance[ ] personal considerations with the possible cost of disclosure," id., when making her subsequent confessional statements. Instead, his promise "[wa]s of the sort that may indeed critically impair a defendant's capacity for self-determination." ... And despite Detective Wheeles's assurance at the beginning of the interview--that he was "not going to lie to [Ms. Sharp] in this investigation"--his promise that she would not go to jail was false or misleading.....

In isolation, Detective Wheeles's comments about helping Ms. Sharp and her children might not appear coercive. He did not explicitly suggest that Ms. Sharp confess in exchange for his assistance with shelter. But he did mollify her concerns about finding shelter by saying "[w]e'll work out some place for you to go," .... , a promise inconsistent with a suggestion of arrest. And his willingness to cut short the interview to retrieve her children from the presence of a registered sex offender added weight to his "no jail" promise of leniency, which he had made only a few minutes earlier.

Ms. Sharp's surprised and angry reaction when Detective Wheeles arrested her at the end of the interview indicated her incriminating statements were not the product of free will because they were given on the false premise she would not go to jail. She accused him of lying and trickery and thought her cooperation would make her a witness, not a defendant.

Having carefully reviewed the interview video and considered the totality of circumstances, we conclude Ms. Sharp's will was overborne once Detective Wheeles promised her she would not go to jail after she admitted to participating in the crime. Once that promise was made, Ms. Sharp's subsequent incriminating statements were involuntary because she had been told she would not go to jail for her involvement. The trial court therefore erroneously admitted those statements at trial in violation of the Fifth and Fourteenth Amendments.

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Testimony regarding threat of deportation of family members should have been admitted; could cause a coerced confession

In US v. Feliz (July 2015) the US Court of Appeals, First District, reversed the lower court's decision to admit the defendant's incriminating statement. From the Court of Appeals decision:

"The district court curtailed the record before it when it excluded as hearsay Hortencia's [the defendant's mother] testimony that she heard a police officer threaten Feliz with the deportation of his mother and state custody for his siblings. The court never evaluated the two competing accounts, because it ruled that only one account was before it.

This was plain error. Hearsay is a statement "the declarant does not make while testifying at the current trial or hearing," and "a party offers in evidence to prove the truth of the matter asserted in the statement." ... Feliz did not attempt to introduce testimony of the officers' threats for the truth of the matter asserted. Hortencia testified, for example, that the officer said "your siblings are all going to the Department of Family." Before the magistrate judge, Hortencia testified that an officer said to Feliz, "We are going to deport your mother." She also testified there that the officers told Feliz that if he did not turn himself in, "they were going to deport me and they were going to call the Department of the Family to take the boy and girls." That testimony would not show that Feliz's siblings would truly be sent to the Department of the Family if he did not turn himself into police custody, or that she would have been deported. Rather, the testimony, if credible, would show the fact that the police officer made the threat to Feliz, a fact within Hortencia's personal knowledge.

Given that the improperly excluded testimony was both plausible and significant in this case, the proper course was for the district court to admit the evidence and "give it such weight as his judgment and experience counsel." ... In the written opinion, the district court simply said that there was "no evidence" of coercion and, while "[t]here may have been evidence" of coercion before the magistrate judge, "similar evidence was not reiterated in the hearing before the undersigned."

We vacate the order denying the motion to suppress, vacate the judgment of conviction, and remand for further proceedings consistent with this opinion. Upon remand, the case shall be assigned to a different judge for a new proceeding.

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Failure to record the interrogation was a violation of Wisconsin law, but harmless error

In State v. Moore (June 2015) the Wisconsin Supreme Court ruled that the defendant's Moore's incriminating statements were voluntary, and since he did not "refus[e] to cooperate" with police during his interrogation, it was therefore a violation of Wis. Stat. S 938.195 for police to cease recording the interrogation. However, the error, if any, in not suppressing some of Moore's statements, was harmless. Moore admitted to participating in the crime prior to the recording being turned off, and he repeated his confession that he was the shooter after the recording was turned back on. Accordingly, we affirm the court of appeals. From the Supreme Court's opinion:

"This is a review of a published decision of the court of appeals, which affirmed a judgment convicting Raheem D. Moore (Moore) of second-degree reckless homicide as party to a crime. Moore pled guilty to the charge after the Milwaukee County Circuit Court denied his motion to suppress certain statements he made during police questioning.

This case presents issues related to our decision in State v. Jerrell C.J., 2005 WI 105, 283 Wis.2d 145, 699 N.W.2d 110, and the Wisconsin Legislature's subsequent enactment of Wis. Stat. S 938.195, which requires that custodial interrogation of juveniles be recorded except under limited circumstances. Moore contends that his confession to police was involuntary. Alternatively, he contends that the incriminating statements he made that were not recorded during his custodial interrogation as a juvenile were inadmissible because he did not "refus[e] to respond or cooperate" with detectives as required by an exception to the recording statute. Accordingly, he requests that he be allowed to withdraw his plea.

Moore, then 15 years old, was arrested on October 10, 2008, after being implicated in a Milwaukee homicide. Police detectives questioned Moore for approximately five and a half hours over a period of nine hours from 2:49 p.m. until 11:44 p.m.

On two occasions during this questioning, Moore asked the detectives to turn off the device recording his interrogation. After the detectives complied with Moore's second request, he confessed to being the shooter in the homicide. Thereafter, the detectives covertly recorded Moore reaffirming his confession.

Moore was initially charged with first-degree reckless homicide. The circuit court held a Miranda Goodchild hearing to review the voluntariness of Moore's statements made while the recording device was turned off as well as the voluntariness of his later statements that were covertly recorded. The circuit court determined that Moore had voluntarily waived his Miranda rights and was intelligent enough to request that the recording device be turned off. Thus, Moore's statements were not suppressed. Following this ruling, the State amended the charge to second-degree reckless homicide as party to a crime. Moore pled guilty to the amended charge and was sentenced to 11 years of initial confinement and nine years of extended supervision.

Moore appealed the circuit court's decision on the admissibility of his statements. The court of appeals ruled Moore's statements were voluntary. It also concluded that Moore refused to cooperate with the detectives, which permitted them to turn off the recording device. Moore successfully petitioned this court for review.
The tactics used by the detectives interrogating Moore do not suggest that his confession was involuntary. Although Moore was with police for nearly 11 hours after his arrest, his interrogation took place over shorter periods of time with breaks for food, trips to the restroom and the crime scene, and a shift change. Moore's actual questioning lasted about five and a half hours.

Additionally, Moore was read his Miranda rights at least twice. Early on, Moore indicated to the detectives that he was aware of his Miranda rights and had read them two or three times in the past. Nevertheless, the detectives informed Moore of each of his rights separately and waited for Moore to verify that he understood. Moore also was furnished with a written copy of his rights as the warnings were read to him. Moore explained his right to end questioning to detectives.

It is true that the detectives used tactics such as minimizing, suggesting that Parish's death may have been an accident, and telling Moore that other witnesses were saying he shot Parish, to elicit a confession from him. Although these tactics may have influenced Moore, they are tactics that courts commonly accept.

We conclude that Moore's confession was voluntary because the pressures placed on him by interrogation did not "excee[d his] ability to resist."... The detectives took care to ensure that Moore understood his Miranda rights. They fed him, gave him water, took breaks, and treated him with decency and respect. Moore's age and intellectual capacity, while significant, are not dispositive. Thus, although the detectives persuaded Moore to confess that he shot Parish, Moore's decision to do so was a voluntary decision.

We now turn to the issue of whether, under the relevant Wisconsin statutes, Moore's questioning should have been recorded in its entirety. We look to Wis. Stat. S 938.195 to determine whether, and to what extent, the statutory protections that require the recording of juveniles apply here.

This court held in Jerrell C.J. that a juvenile's custodial interrogation must be recorded. ... The court said: "All custodial interrogation of juveniles in future cases shall be electronically recorded where feasible, and without exception when questioning occurs at a place of detention."

The legislature appeared to codify this holding as part of 2005 Wis. Act 60, which was approved subsequent to the Jerrell C.J. decision.

It is clear from the record that Detectives Lough and Salazar stopped recording their interrogation of Moore based on Moore's stated preference, not on his refusal to respond or cooperate. Immediately prior to the recorder being shut off, Detective Salazar emphasized that he and Detective Lough were not asking or encouraging Moore to have the recorder shut off, and that shutting it off was Moore's "choice." We must note that Detective Salazar previously offered to turn off the recorder if Moore asked for him to do so.
We do not ascribe any improper motives to the detectives' decision to turn off the recording device in this case. The detectives' decision appears to be exactly what Moore wanted. Nonetheless, giving juvenile suspects the "choice" of whether to have their questioning recorded would defeat the purpose of the statute, which is to ensure that police do not use unfair tactics to elicit confessions from juveniles. In cases of questionable police conduct--however rare they may be--courts would be able to analyze only the police tactics used to induce, euchre, or coerce the juvenile into "choosing" to have the recorder turned off, and would be able merely to draw inferences about the tactics used to obtain the juvenile's later statements and admissions.

After Moore's original request to turn the recording device off, he continued making statements and answering questions. His second request was similar to the first. Moore never told the detectives he would end the interrogation or stop answering questions if the recorder was left on. Detectives Salazar and Lough may have felt that they were getting incomplete or dishonest answers from Moore due to the recorder's presence, but that suspicion, coupled with Moore's request, was not enough to determine that Moore "refused to respond or cooperate."

A majority of the court concludes that Moore did not refuse to respond or cooperate unless the recorder was turned off. We recognize and appreciate the view that Moore should not benefit from being granted his stated wish, as long as his subsequent confession was voluntary.

Assuming, ... that Moore's unrecorded statements should have been suppressed by the court, we turn to whether any error was harmless.

The harmless error inquiry asks whether "the error complained of has affected the substantial rights of the party seeking to reverse or set aside the judgment, or to secure a new trial." Wis. Stat. S 805.18. Stated differently, the question is "whether it was 'beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.' "

Under this framework, plea withdrawal is not warranted in this case. Moore pled guilty to second-degree reckless homicide as a party to the crime. Even if the statements Moore made while the recorder was turned off had been suppressed, it is clear beyond a reasonable doubt that he would have pled guilty to the reduced charge.

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The application of the Garibay test to determine confession admissibility from a non-native English speaker

In Gonzales v. State (July 2015) the Supreme Court of Nevada rejected the defendant's claim that as a non-native English speaker his confession should not have been admitted at trail because he was not provided with the assistance of an interpreter. From the court's opinion:

"Appellant Noel Gonzales was convicted of multiple felonies following a jury trial, and part of the evidence introduced against him was his tape-recorded confession to the crimes during a custodial police interrogation. Because Gonzales claims to be a non-native English speaker, he asks us in this appeal to adopt the test set forth by the United States Court of Appeals for the Ninth Circuit in United States v. Garibay, 143 F.3d 534, 538 (9th Cir.1998), to find that his confession should not have been admitted at trial because he was not provided with the assistance of an interpreter and therefore his confession was obtained illegally.

We conclude that the test set forth in Garibay provides a helpful guide in identifying and weighing some of the circumstances that may be relevant to the admissibility of confessions rendered by non-native English speakers. However, we decline to adopt the Garibay test as an overarching inquiry that must always be applied by district courts whenever an interrogated suspect is a non-native English speaker. After reviewing the totality of the circumstances in this case, we conclude that the district court did not err in ruling that appellant's confession was admissible even though English is not his native language and he was not provided with the assistance of an interpreter during his police interrogation. We also conclude that the district court did not err in admitting documents proffered to tie Gonzales to the scene that Gonzales characterizes as hearsay. In addition, we conclude the evidence presented to the jury in this case was sufficient to sustain convictions for the crimes of kidnapping and robbery arising from the same course of conduct.

The test of United States v. Garibay

Questions relating to the admissibility of a confession rendered by a non-native English speaker during a custodial police interrogation are ones that the courts of this state are encountering with increasing frequency. During a single shift, a police officer in Nevada may encounter a variety of different languages and dialects, and court-certified interpreters may not always be readily available to assist the officer whenever an interrogation is necessary. At the same time, there appears to be a dearth of published precedent from the Nevada Supreme Court to guide trial courts and police officers in handling such interrogations.

To fill that void, Gonzales asks this court to require district courts to apply the six-prong test set forth in United States v. Garibay, 143 F.3d 534, 538 (9th Cir.1998), whenever the admissibility of a custodial police interrogation of a non-native English speaker is challenged. In Garibay, the Ninth Circuit canvassed existing case law and identified six factors that federal courts generally consider relevant to the voluntariness of a confession rendered by a non-native English speaking defendant. Specifically, the court stated:
In applying the "totality of circumstances" test, we further examine whether other circumstances surrounding Garibay's interrogation indicate that he knowingly and intelligently waived his constitutional rights, despite his English-language difficulties, borderline retarded IQ, and poor verbal comprehension skills. The following considerations guide our inquiry: (1) whether the defendant signed a written waiver; (2) whether the defendant was advised of his rights in his native tongue; (3) whether the defendant appeared to understand his rights; (4) whether a defendant had the assistance of a translator; (5) whether the defendant's rights were individually and repeatedly explained to him; and (6) whether the defendant had prior experience with the criminal justice system.

Gonzales asks this Court to follow the guidance of Garibay in determining the voluntariness of his confession in this case.

Constitutionally, admissibility must be assessed in view of the "totality of the circumstances." Garibay identifies some of the myriad circumstances generally relevant to the admissibility of any confession within the existing constitutional framework that might have special relevance when the defendant is a nonnative speaker, but the factors listed therein are nonexclusive... Thus, the framework of Garibay may provide helpful guidance to district courts grappling with the question of admissibility of such confessions, and the Garibay factors may be considered by district courts when reviewing those confessions. However, the mere fact that a particular confession fails to satisfy the six factors identified in Garibay does not, by itself, render the confession inadmissible any more than an otherwise involuntary confession becomes admissible merely because it meets those six factors.

Questions relating to the admissibility of confessions by nonnative English speakers are far too complex and fact-specific to pigeonhole into any single legal test, even one with six elements. Indeed, no single legal litmus test can possibly capture all of the relevant variations and iterations that could help determine the voluntariness of an interrogated suspect who speaks English as a second language, because non-native speakers who are somewhat familiar with English may possess different degrees of fluency that are not always easy to label or categorize. For example, some non-native English speakers may speak English conversationally yet not understand arcane or complex legal terms; some may speak English well but cannot read it; some may read and write English extremely well yet speak with accents that render their spoken words difficult for others to understand; some may understand the meaning of English words when they hear them without being able to generate those same words quickly during conversation; some may speak and understand English well when conversing with some people but have difficulty understanding others who speak with a strong regional accent such as a southern drawl or northeastern inflection; and some may understand extremely complex English words and concepts when formally phrased yet not understand street jargon, slang, aphorisms, pop-culture references, or other colloquialisms that, to native speakers, might be far more conceptually simple. It is even possible that some non-native speakers may, based upon their education, understand the legal system extremely well yet not understand other words or concepts that might be conceptually simpler to others.

All of these subtleties are relevant to the voluntariness of a confession, but nonetheless are not captured well in the Garibay test. Consequently, while Garibay provides useful guidance for district courts grappling with the admissibility of confessions rendered by non-native English speakers, we decline the invitation to adopt the Garibay test as a comprehensive test of voluntariness in Nevada. The constitutional test for admissibility remains whether the confession was voluntary under the totality of all circumstances relevant to the confession, whether the circumstances are delineated in Garibay or not.

Consequently, we cannot conclude that the district court erred in this case merely because it failed to set forth its findings within the context of the Garibay analysis.

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Testimony by the investigator that the defendant's answers during a police interview were evasive was acceptable

In Satterfield v. State (June 2015) the Indiana Supreme Court found that the detective's testimony, characterizing the answers defendant gave during a police interview as evasive, was admissible as lay opinion testimony. From the court's opinion:

"At trial, Satterfield objected to a detective's characterization of the answers he gave during a police interview as "evasive." Detective Tobias Odom conducted the interview while Satterfield was recovering from his injuries at Wishard Hospital, and he video-recorded their conversation. The State played the entire video at trial. After the video ended, Detective Odom discussed Satterfield's behavior during the interview:
STATE: How would you characterize the answers Mr. Satterfield was giving to the questions you were asking?
ODOM: At times he minimizes his involvement. Maximizes other things.
STATE: When you say he minimizes, what does that mean?
ODOM: We all tend to minimize our--our involvement at times.
STATE: We tend to--to play down the things that make us look bad?
ODOM: Correct.
STATE: And when you say, he maximized, what do you mean?
ODOM: Long answers. Going over the same thing he spoke about when you're not really asking that question.
STATE: Those things which would--tends to create sympathy, or support a certain conclusion? ... By maximizing, do [you] mean long, drawn-out answers about the things that we tend to--to--give us sympathy or support a beneficial conclusion?
ODOM: Could be. Or--or, just not answering the question at hand. You just move--keep moving over the same things over and over again.
STATE: In that sense, would you characterize the answers as evasive ?
ODOM: Yes. Can be.
(Emphasis added.) The trial court admitted Detective Odom's testimony over Satterfield's objection as skilled witness testimony.

Satterfield now argues that the trial court abused its discretion in admitting this testimony for two reasons: (1) Detective Odom was not qualified as a skilled witness to determine evasiveness in an interview under Indiana Rule of Evidence 701; and (2) even if he was, Detective Odom may not offer "human lie detector" testimony about his truthfulness in the interview. Satterfield further contends that this error was not harmless because his behavior and mental state were critical to his insanity defense.
Helpful opinions are not exclusive to experts or skilled witnesses. Any witness "not testifying as an expert"--whether an ordinary lay witness or a skilled witness--may testify "in the form of an opinion" if it is "(a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness's testimony or determination of a fact in issue." ..."The requirement that the opinion be 'rationally based' on perception simply means that the opinion must be one that a reasonable person could normally form from the perceived facts...

The premise of Satterfield's first argument is that only a skilled witness may testify that a person is being "evasive." The difference between skilled witnesses and ordinary lay witnesses is their degree of knowledge concerning the subject of their testimony. Neither has the "scientific, technical, or other specialized knowledge" of experts, ... and both ordinary lay and skilled witnesses testify from their perceptions alone, not necessarily established scientific principles, id. Skilled witnesses, though, possess knowledge beyond that of the average juror... This additional knowledge allows a skilled witness to perceive more information from the same set of facts and circumstances than an unskilled witness would. All opinion testimony is helpful, "giv[ing] substance to facts, which [are] difficult to articulate." ...But skilled witness testimony is helpful because it involves conclusions that escape the average observer.

Here, however, the opinion offered by Detective Odom concerning the content of Satterfield's interview questions was no more insightful than what an ordinary lay witness could have observed--it was simply a helpful, tangible summary to articulate his intangible observations.

Similar to the situation in Tolliver, the State asked Detective Odom to characterize Satterfield's responses, and he said that Satterfield failed to answer questions, minimized incriminating information, and maximized harmless information. In this context, the term "evasive" was helpful as a summary of the content and manner of answering questions and nothing more. And he did not overstate his summary--the State was the only party to actually use the word "evasive," and Detective Odom simply responded with, "Yes. Can be." This was a "commonsense conclusion," and "any lay witness might have observed" Satterfield's behavior and reached the same opinion.

Our own review of the video played at trial confirms just as much... The video shows Satterfield answering questions unrelated to the shooting (including the arson) in a calm and coherent manner, and it shows him being hesitant and halting when answering questions related to the shooting. Detective Odom's characterization of Satterfield's alternatively minimizing and maximizing answers as "evasive" is an accurate and helpful summary of our own observations.

This testimony offered by Detective Odom was also not "human lie detector" testimony when understood in the context of his entire testimony and the video itself. No witness may "testify to opinions concerning intent, guilt, or innocence in a criminal case [or] ... whether a witness has testified truthfully." ... Taken alone, the word "evasive" can mean "tending or seeking to evade; not straightforward; tricky...," Webster's New World Dictionary (Third College Edition) 470 (1998), and "evade" can mean "to be deceitful or clever in avoiding or escaping something."... These definitions could imply an intent to deceive. But "evasive" can also mean "equivocal," without a mendacious intent..... And taken in the context of Detective Odom's entire testimony and the video of the interview, Detective Odom's summary of Satterfield's mode of answering questions--namely, minimizing incriminating information, and maximizing harmless information--was not a statement of his veracity.

In sum, Detective Odom was not an unqualified skilled witness, nor was his testimony inadmissible commentary on Satterfield's truthfulness. Rather, in the context of Detective Odom's entire testimony and in light of our own observations of the video itself, the testimony was admissible as a helpful, "commonsense conclusion" about Satterfield's manner of answering questions during an interview. Because we find that the trial court did not abuse its discretion, we need not conduct harmless error review.

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Testimony of Dr. James Walker re false confession was not persuasive

In State v. Mark (August 2015) the Court of Criminal Appeals of Tennessee, upheld the lower court's opinion to admit the defendant's confession, rejecting the testimony of Dr. James Walker, an expert in neuropsychology, who testified that the defendant exhibited characteristics that made her "very susceptible" to making a false confession. In this case the defendant was convicted of one count of first degree murder during the perpetration of aggravated child abuse, four counts of aggravated child abuse, and four counts of child abuse. From the court's opinion:

"The defense presented as its first witness Dr. James Walker, a forensic neuropsychologist, who was accepted by the trial court as an expert in neuropsychology. He testified with regard to "the phenomenon" known as false confessions in which a person admits to a crime that they did not actually commit. He stated that this was an area of "intense study and scrutiny" for him. Relevant to false confessions is the personality trait of suggestibility, which can be quantified using the Gudjonsson test. Dr. Walker testified that outside of one's suggestibility, police tactics also precipitated false confessions. He said that police are trained to elicit confessions by utilizing the following interrogation practices: isolating the subject; keeping them in a room surrounded by symbols of authority such as badges and guns; telling the subject that you know they are guilty and that this can all be over when they finally admit their guilt; telling the subject that they are not a bad person and that the officer understands they did not mean to do what they actually did; telling the subject that if they will just confess to what they are accused of, then everything will go much better for them. Dr. Walker said that some people falsely confess because of deference to authority. Others confess falsely because of sleep deprivation, depression, or anxiety. Still others do so to protect loved ones.

During his evaluation of appellant, Dr. Walker considered investigators' notes and administered the Greens Word Memory Test. The Greens test assessed the individual's truthfulness, and he said that appellant performed perfectly, indicating that she was trying to do her best. He also administered a Mini Mental State Evaluation to determine whether appellant's basic mental functions were intact. The test showed no mental dysfunction. Appellant's scores on the Personality Assessment Inventory were mostly within normal limits, but in some areas, her scores were elevated. On the Positive Impression Management Scale section, she answered some items in a defensive way, such as whether she would become angry when insulted or when someone forgot to empty the trash. Dr. Walker said, "She tended to say that she didn't do things like that, like a typical person would." Appellant scored "low dominance" on the inventory, which indicated that she was non-confrontational, avoided conflicts, and felt she had lower self-esteem than others. He opined that those characteristics would make a person more likely to admit doing something she had not done. Dr. Walker administered an EQI to obtain appellant's emotional rather than intelligence quotient. The results indicated that appellant had low self-esteem, did not hold herself in high regard, and felt as though she was never able to achieve as her family expected. He said appellant is empathetic, sympathetic, compassionate, deferential, and unlikely to assert herself. He described that she had a great deal of social responsibility, was a rule-follower, and was not a good problem solver. She does not think "well on her feet," and it would take her longer and require more effort for her to solve a challenge. Appellant described herself as "a rather unhappy individual."

Dr. Walker also utilized the Gudjonsson Compliance Scale and the Gudjonsson Suggestibility Scale. The results of the compliance scale indicated that appellant answered all twenty questions in the "compliant direction." He said, "She described herself as an extremely compliant individual, someone who never goes against authority." The suggestibility scale was "designed to get at the heart of this idea of suggestibility. And it's done by directly measuring whether or not you can get the patient to change their mind about something that they know is actually true." When asked leading questions about a passage that Dr. Walker read, appellant answered affirmatively to those questions at a level that was "higher than average." On the next part of the test in which Dr. Walker challenged some of appellant's answers, she changed her answers eight times, "which is a very high number." He said, "She's a very suggestible person. She's very compliant. When I gave her the false feedback that she had done very poorly on the test and we should try to do better the next time, she appeared so crest fallen it was almost like I had slapped her across the face. She was just so mortified that she had not done a good job and she wanted to do better. I think that's why she changed her answers on this test."

With regard to appellant's interrogation, Dr. Walker opined:

I think that her interrogation by the police was of course as it would be with anybody, a very stressful time. But for [appellant] it was especially stressful because she was confronted by people in authority who wanted her to say things that she did not want to say, who wanted to get her to say that she had done the things that she didn't want to say that she had done. This was a tremendous dilemma for her.

He stated that based on Detective Harbaugh's interrogation techniques, the size of the room, the number of people in the room, the lack of windows, and the location of the exit, in conjunction with appellant's predispositions, she was "very susceptible" to making a false confession on July 1, 2010.

On cross-examination, Dr. Walker stated that he interviewed and tested appellant twelve days prior to the trial in this matter, and he confirmed that she had given a "very damaging confession." He admitted that he was unaware of the adoption paperwork appellant and Mr. Mark had completed wherein they wrote that although they were Chinese, they did not have a "strong grasp" of the Chinese culture. He acknowledged that appellant had portrayed to him that she, in fact, had a strong tie with the Chinese culture. Dr. Walker agreed that it was a fair assessment that appellant "thinks ahead" when answering questions.

The State asked Dr. Walker whether he had an opinion about whether appellant's statement to the police was true, to which he answered, "I do not." He clarified, "Not within a reasonable degree of scientific certainty." He agreed that it was "very possible" that she was telling the truth in her statement.

Dr. Walker's assessment was that appellant was non-confrontational, avoided conflicts, and felt she had lower self-esteem than others. He opined that those characteristics would make a person more likely to admit doing something they had not done. Dr. Walker administered an EQI to obtain appellant's emotional rather than intelligence quotient. The results indicated that appellant had low self-esteem, did not hold herself in high regard, and felt as though she was never able to achieve as her family expected. He said that appellant is empathetic, sympathetic, compassionate, deferential, and unlikely to assert herself. He described that she had a great deal of social responsibility, was a rule-follower, and was not a good problem solver. He said, "She's a very suggestible person. She's very compliant."

Even so, on cross-examination, when the State asked Dr. Walker whether he had an opinion about whether appellant's statement to the police was true, he acknowledged that it was "very possible" that she was telling the truth in her statement.

We conclude that appellant's statement was freely and voluntarily given and was not the product of coercive action.

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An 'implicit waiver' of the 'right to remain silent' is sufficient to admit a suspect's statement into evidence

In US v. Chambers (July 2015) the US District Court, W.D. Kentucky, rejected the defendant's claim that his incriminating statements should have been found inadmissible because he did not make an implicit waiver his rights, and that his statements were the result of coercive tactics. From the court's opinion:
"At the commencement of the interview between Defendant and police, an officer provided the following Miranda warning:

So like everything else, you've probably heard this before watching TV or whatever, but it's procedure and we always go through it. So, before we ask you any questions you have to understand your rights, you have the right to remain silent, anything you say can be used against you at court, you have the right to talk to a lawyer for advice before we ask you any questions and to have him with you during any questioning. If you can't afford a lawyer one will be appointed for you before any questioning if you wish. If you decide to answer questions now without a lawyer present you still have the right to stop answering at any time. You also have the right to stop answering at any time until you talk to a lawyer. Do you understand what I just read to you sir?

Miranda... Defendant acknowledged that he understood his rights after the officer explained them to him by responding with "yes, sir" to the officer. ... He concedes this point in his brief. ... Defendant argues that the problem is that he "never expressed consent to waiving his rights: the investigator simply began questioning him, and he obediently answered." .... However, " 'waiver may be clearly inferred ... when a defendant, after being properly informed of his rights and indicating that he understands them, nevertheless does nothing to invoke those rights' and speaks." ... Defendant's suggestion that obediently answering questions is somehow demonstrative of a lack of a waiver on his part is unsupported by case law. To the contrary, the United States Supreme Court observed that [Miranda] does not impose a formalistic waiver procedure that a suspect must follow to relinquish those rights. As a general proposition, the law can presume that an individual who, with a full understanding of his or her rights, acts in a manner inconsistent with their exercise has made a deliberate choice to relinquish the protection those rights afford.... Defendant's continual participation in the interview is indicative of his decision to waive his rights.

Defendant identifies three points in the conversation that he believes demonstrate coercion on the part of the police. The first occurred early in the conversation between the officers and Chambers.

Det. Odier: Obviously we're here for a specific reason. Okay?
Chambers: Okay.
Odier: So obviously we have some information that we already know.
Chambers: Okay, yeah.
Odier: And so as we go through this, it's important to remember, of course we want you to be truthful with us.
Chambers: Sure, yeah.
Odier: And, and we're not gonna bullshit you ... excuse me, but we're, we're just not. Okay, it's important for you to understand there are things that we know.
Chambers: Okay, sure.
Odier: Okay. And ... what we always like to tell people is, it's really hard for you to know what we know and I'm not saying you have, because I think you've been very truthful with me, okay, but when people start lying, it's really hard to keep that lie going ...
Chambers: Sure.
Odier: ... especially not knowing what we know. Chambers: Ok, sure.

... Defendant describes Detective Odier's questions and statements in this section as veiled threats. Threats, both physical and psychological, can be unconstitutionally coercive.... Generally, these types of threats involve suggested physical harm to the suspect or unlawful arrest of members of the suspect's family.... Clearly, neither of these situations is present here. In fact, it is difficult to even determine what exactly Defendant believes Detective Odier actually threatened. At most, Detective Odier sought to convey to Chambers that it was important for him to be truthful with the officers. These statements seem innocuous. Therefore, the Court finds that this alleged threat is not objectively coercive.

Next, Defendant identifies two instances during the interview where he indicated to the officers that he was experiencing "intense discomfort."

Chambers: Well, then honestly you know, he, he, he, uh, I--I--I'm just as nervous as can be, I--I--I'm almost shaking like I am now--and then uh, he, he pulled my pants down and said "here," you know....
Det. Odier: And, did anything happen between you and his daughter then?
Chambers: Yeah and, and, and, I'm, I'm, I'm not gonna lie to you here okay uh, uh, and I hope you'll understand that I'm coming at this from uh, from just scared.....

Of those two excerpts, the only indication of nervousness on Defendant's part during the actual interview was his statement, "I'm almost shaking like I am now...." ... Otherwise, the other statements identified by Defendant about being "scared" or nervous relate to his first encounter with Kosicki and the child, not the interview itself. Despite one small indication of nervousness by Defendant, the recorded interview shows that police acted in both a polite and cordial manner towards Chambers. As an example of the atmosphere, just prior to the second dialogue where Defendant explains he is "scared," one of the officers joked about how he was a dog person when Defendant's dog was around the officer. When considering the tone of the officers and the comfort of Defendant's surroundings during questioning (e.g., officers allowing Defendant to have his dog around him), the Court finds the lack of an unconstitutionally coercive environment.

Finally, Defendant asserts that police coerced his statement by exploiting his religious beliefs.

Det. Odier: I want to go back and I want to talk about things in a general sense. You have by your profession, devoted your life in service of God.
Chambers: Yes.
Odier: And I too am but a humble servant of the Lord.
Chambers: Yeah.
Odier: And we know that the path to forgiveness begins with the truth.
Chambers: Yes.
Odier: Sometimes we have to realize what that truth is within ourselves. And I don't think you're lying to me. I don't think you're lying to Brian. Okay, but I don't think you're being completely truthful with yourself or with us.
Chambers: Okay.

Particularly, Defendant argues that the officer's use of his religious beliefs caused him "to 'realize' not only that he intended to commit sexual offenses, but that he affirmatively enjoyed doing them." .... However, an officer's reference to a suspect's religious beliefs does not constitute unconstitutional coercion.... Therefore, the Court also finds this argument unpersuasive.

In addition to the cordial manner in which police conducted the interview, Chambers was sixty-two years old at the time of the interview with a work history that included ten years in the banking industry and thirty years in the ministry of Baptist churches. Although officers questioned Defendant after waking him in the morning, the interview did not last long and it was conducted in a comfortable environment. Considering the totality of the circumstances, the Court finds that the United States proved by a preponderance of the evidence that Defendant's confession was voluntary.

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The defendant's claim that he could not read the Miranda waiver form because he did not have his glasses was disproved by the video of the interrogation

In State v. Griffin (July 2015) the Court of Appeals of Ohio relied on the videotape of the defendant's interrogation to disprove his claim that he could not read the waiver form because he did not have his glasses with him. From the court's opinion:

"In this case, Griffin claims he did not knowingly, intelligently and voluntarily waive his Miranda rights because he: (1) was unable to read the rights and waiver contained in the pre-interview forms without his glasses; (2) was under the influence of alcohol and prescription drugs at the time of the first interview; (3) had an overwhelming urge to urinate during both interviews due to a medical condition, which, according to Griffin, created an exigency to say and sign whatever necessary to conclude the interviews; and (4) was misled by the detectives into believing that if he agreed with the detectives' statements and signed the pre-interview forms, he would be allowed to return home. Griffin also claims that his statements during the interviews were involuntary as a result of his intoxicated state, his need to urinate, and coercion by the interviewing detectives.

After reviewing the testimony and evidence presented at the suppression hearing, which included the pre-interview forms and the video recordings of Griffin's interviews, the trial court found that Griffin demonstrated an ability to read the pre-interview form without his glasses during the first interview and that he testified falsely at the suppression hearing when he claimed otherwise. Specifically, the trial court found that during both interviews, Griffin mentioned that he did not have his glasses, but did not request his glasses at any time. The trial court also found that during the first interview, Griffin was able to confirm that his social security number and date of birth were correctly written on the pre-interview form after reviewing the form without his glasses. In addition, the trial court found that Griffin read aloud the first Miranda right written on the form at both interviews, as well as the entire "Waiver of Rights" section on the form during the first interview, all without his glasses.

Continuing, the trial court found that Griffin did not appear to be intoxicated during either interview. Rather, the trial court found that Griffin spoke clearly, without slurred speech and was coherent and alert at all times. In addition, with respect to Griffin's need to use the restroom, the trial court found that Griffin requested to use the restroom three times during the first interview, but that no admissions were ever made after those requests. During the second interview, the trial court found that Griffin did not ask to use the restroom until the very end of the interview, after he had already made his confession.

While Griffin testified that he had asked to use the restroom immediately prior to both interviews, the trial court found his testimony lacked credibility given that his requests were not captured on the video recordings and due to the false testimony he gave regarding his ability to read the pre-interview form. Furthermore, the trial court found that during both interviews, Griffin never advised the detectives that he had a medical condition causing an urgency to urinate, did not exhibit any signs of physical discomfort as a result of his alleged need to urinate, and at no point requested to stop the interview to use the restroom.

The trial court also found that during the first interview, Griffin stated that he had been advised of his Miranda rights in the past. In addition, the trial court found that during both interviews, Griffin correctly defined the meaning of the word "coercion," and stated that he had completed 12 years of schooling and obtained a GED. In confirming his understanding of his rights, the trial court found that Griffin asked Detective Daniels if he was allowed to stop the interview at any time, to which the detective responded: "That's correct, Chris. Yes you are. That's your right." ... The trial court further found that after Griffin read the first of his Miranda rights aloud from the form, the detective then proceeded to read each of the remaining rights to Griffin at a speed that Griffin could understand. During both interviews, Griffin thereafter stated that he understood each right without hesitation and initialed each right on the form to confirm his understanding.

Finally, the trial court found that while Griffin testified that he signed the waiver of rights on the pre-interview form only because he thought it would allow him to get home quicker, on cross-examination, Griffin conceded that the detectives never promised him that he would get to go home if he signed the form. The trial court also found that at no point during either interview did the detectives either explicitly or implicitly convey any threats or promises to Griffin.

Upon reviewing the record in this case, we find that the foregoing findings of fact made by the trial court are supported by competent, credible evidence; namely, the video recordings of Griffin's interviews, the pre-interview forms, and Detective Daniels' testimony.... Regardless, the video did depict Griffin reading aloud the first of his Miranda rights and confirming his social security number and birthdate written on the form without his glasses. Therefore, exclusive of this one erroneous finding, we adopt the trial court's factual findings as true.

Having accepted the trial court's findings of fact as true, we find a preponderance of the evidence supports the trial court's finding that Griffin knowingly, intelligently and voluntarily waived his Miranda rights, as the totality of the circumstances indicates that Griffin's waiver was made with full awareness of the nature of the rights that he was waiving and the consequences thereof. The totality of the circumstances also indicates that Griffin's waiver was not the product of intimidation, coercion or deception.

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