Legal Updates Summer 2016

In New York no adverse instruction required if police do not electronically record the interrogation

In People v. Durant (November 2015) the Court of Appeals of New York ruled that “common law does not invariably require a court to issue an adverse instruction against the People at trial based solely on the police’s failure to electronically record the custodial interrogation.” From the court’s opinion:

To begin, no adverse inference instruction could lie in this case based on the government's alleged dereliction of a legal duty, for generally there exists no legal duty which may be breached by the failure to make an electronic recording of an interrogation. No statute requires the police to generate a video or audio recording of their interrogation of a suspect, and leaving aside any suppression matters, our case law has not recognized a constitutional duty to record interrogations. Thus, while our precedent does permit—and sometimes requires—a court to issue an adverse inference instruction as a penalty for the government's failure to satisfy applicable legal duties, the rationale of that precedent does not support the issuance of an adverse inference instruction based on the police's failure to satisfy a nonexistent duty to record an interrogation.

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The value of videotaping: determining the extent to which a mental impairment can render a Miranda waiver ineffective

In Smith v. Duckworth (June 2016) the US Court of Appeals, Tenth Circuit, upheld the lower court’s decision not to suppress the defendant’s confession even though an expert testified that that Mr. Smith functioned “at a borderline or low average [IQ] range with deficiencies in the information processing speed and the influence of the chronic and current PCP use would affect his ability to understand the Miranda warnings and more importantly to understand the consequences of waiving those warnings.” The trial court rejected the offer of proof. From the Court of Appeals decision:

Mr. Smith argued on direct appeal that the trial court “failed to properly evaluate the validity of the Miranda waiver under the totality of the circumstances standard” because the trial court “refused to allow a neuropsychologist, Dr. Bianco, to testify at the suppression hearing as to [Mr. Smith's] intelligence.”… Mr. Smith contended “Dr. Bianco's testimony was necessary to establish that [Mr. Smith] was of low intelligence and as a result was unable to comprehend the nature or consequences of the rights he was waiving.”

…. After defense counsel offered Dr. Bianco's testimony that Mr. Smith is “borderline to low intelligence” and was “very slow in processing information,” the trial court gave a detailed explanation of its findings that Mr. Smith had sufficiently understood the waiver of his Miranda rights. Based on its review of Mr. Smith's videotaped interview, the trial court observed that Mr. Smith was “very cocky” and “extremely verbal about how he tricks people and misleads them and has got them convinced how crazy he is”; that he “was able to plan how to switch clothes with different people and conceal his identity” to hide from police; that during the interview he was not “disoriented or unable to comprehend” but rather was “extremely animated and disturbingly explanatory about the murders he committed and how they were other people's fault”; and that he demonstrated the “ability to reason, make intelligent decisions, to co-op other people into his plan and to understand perfectly the consequences of his actions as he's trying to avoid capture.” Ultimately, the trial court determined that “there are many indicia[ ] demonstrat[ing] that [Mr. Smith] possessed intelligence” and that, during the interview, “he demonstrated in many different ways his understanding of what was going on.” Accordingly, the trial court concluded that “testimony regarding his specific IQ range” would not be relevant to its assessment of his Miranda waiver.

The trial court's findings demonstrate that it gave fair consideration to Mr. Smith's intelligence with respect to his ability to understand the nature of the rights he was waiving and the consequences of his waiver. The trial court's findings regarding Mr. Smith's intelligence are based on the court's own observations of Mr. Smith's behavior and interactions with the detectives over the course of a nearly two-hour interview, and Mr. Smith has not rebutted the correctness of these findings.

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Is a hospitalized defendant necessarily in custody?

In State v. Portillo (June 2016) the Court of Appeals of North Carolina upheld the lower court’s ruling that the fact that the defendant was hospitalized at the time of questioning did not create a custodial environment. From the Court of Appeals opinion:

Defendant first contends that his statement was inadmissible at trial because it was elicited during a custodial interrogation and because he was not Mirandized prior to making it. For these reasons, defendant argues the trial court committed reversible error by admitting his statement into evidence. We disagree.

… Police officers, however, “are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because ... the questioned person is one whom the police suspect.” … Non-custodial interrogations do not require Miranda warnings…. Rather, “Miranda warnings are required only where there has been such a restriction on a person's freedom as to render him ‘in custody.’ It was that sort of coercive environment to which Miranda by its terms was made applicable, and to which it is limited.”

This Court has previously addressed whether a defendant is considered to be in custody while being treated at a hospital…. The fact that a suspect is hospitalized at the time he is questioned by police does not, by itself, make an interview custodial…. Instead, all relevant factors must be balanced, including: “(1) whether the defendant was free to go at his pleasure; (2) whether the defendant was coherent in thought and speech, and not under the influence of drugs or alcohol; and (3) whether officers intended to arrest the defendant.”

In the instant case, defendant's argument tracks the three factors articulated in Allen. Defendant first contends that “neither [his] grave medical condition nor the police presence would have allowed [him] to freely leave the ICU at the time Detectives Bell and Flynn arrived to question him.” (Emphasis added). However, as noted above, this is not the proper inquiry. The dispositive issue is whether defendant's freedom of movement was restrained to the extent associated with a formal arrest… Nothing in the record establishes defendant knew that a guard was present when the challenged interview was conducted. Defendant, who was interrogated in an open area of the ICU where other patients, nurses, and doctors were situated, had no legitimate reason to believe he was in police custody…. Even though the interrogating officers stood around defendant as he lay in a hospital bed, there is no evidence that defendant's movements were restricted by anything other than the injuries he had sustained and the medical equipment that was connected to him. Consequently, “[a]ny restraint in movement defendant may have experienced at the hospital was due to his medical treatment and not the actions of the police officers.”

Second, defendant argues that the interrogation was custodial because he “was undoubtedly under the influence of the previous night's anesthesia and of pain medication” and “the detectives ... [did not] consult the attending physician as to the actual effect the drugs might be having on his comprehension.” Yet nothing in the record indicates that defendant was incapable of understanding the questions he was asked.

Third, and finally, defendant argues that he was in custody because “the detectives arrived at the hospital with the intention of arresting him.” This contention has no legal force here. Although the officers may have arrived at the hospital with the intention of arresting him, officers' plans, when not made known to a defendant, have no bearing on whether an interview is custodial.

Reviewing the totality of the circumstances, we conclude that the evidence supports the trial court's findings, which in turn support its conclusion that defendant was not in custody when his statement was given.

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Manipulative tactics (lying about evidence; lying about the victim being a federal informant; lying about his friends naming him as the shooter) did not render the confession inadmissible

In Valle v Butler (June 2016) the US District Court, N.D. Illinois, upheld the lower court’s ruling that the “aggressive and manipulative” tactics used by the investigators did not cause an involuntary confession. From the District Court’s opinion:

Shortly after 10:00 p.m., detectives Jeffrey Parish and Robert Wallace of the Aurora Police Department and Agent Larissa Camacho of the Federal Bureau of Investigation resumed interrogating Valle. During this interrogation, Camacho told Valle numerous lies to induce a confession. She showed him a compact disc in a plastic case and told him it contained a recording, made by a federal informant wearing a wire at the Latin Kings party Valle had attended the night of Lozano's death, on which Valle bragged about the shooting. Camacho also said that Lozano was a federal informant himself, which, she repeatedly explained, meant that Valle would be prosecuted for a more serious federal crime unless he could convince the police he did not know he had targeted an FBI informant. All of this was untrue. Lozano had not been a federal informant, and the authorities had no recording of Valle.

Camacho told Valle that she already knew everything that had happened because his friends had already turned on him and she had listened to the allegedly incriminating recording. This, too, was untrue. Valle told the officers that the recording must have captured him telling ‘a little bullshit lie...just be cool.‘ Parish told Valle that this was one of his last chances to say that he had made a mistake, that nobody was going to believe him, and that he was ‘fucked.‘ Parish and Camacho explained that Valle had two choices. One option was to ‘sit here and lie‘ by continuing to maintain his innocence and await trial, at which time Camacho and her informants would testify, the recording on the compact disc would be played for the jury, and Valle would be ‘fucked‘ because no jury would ever believe his story. His other option, the officers said, was to ‘tell the truth‘ and admit that he ‘made a mistake.‘

Valle moved to suppress the statements he made during his interrogation based on the claim that they were involuntarily given. He claimed that he had been deprived sufficient food, water, and sleep, and that his high susceptibility to deceptive police tactics due to his personal intellectual limitations led him to be coerced into falsely confessing. The trial court denied Valle's motion. As the appellate court later summarized:

It found that the officers did not falsely suggest sympathy. It recognized that the tone of the interviews sometimes became accusatorial and that the officers ‘slid their chairs into defendant's space‘ and shook a finger at defendant. It noted that Camacho had engaged in deception. The court accepted the validity of the Miranda warnings. It found that defendant had been articulate and responsive in his answers throughout the interrogation.

The court concluded that Valle's confession was not given involuntarily.

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Confession voluntariness: an excellent example from an FBI interrogation

In US v. Adcox (May 2016) the US District Court, W.D. Louisiana upheld the admissibility of the defendant’s incriminating statements, rejecting the claim that the investigators employed material misrepresentations, trickery and deceit. From the District Court’s opinion:

At 7:00 a.m. on the morning of March 27, 2014, two FBI special agents, Maurice J. Hattier, Jr., and Billy J. Chesser, knocked on the front door of Billy Joe Adcox, Jr.'s (“Adcox”) home in Vienna, Louisiana. Upon opening the door, the agents advised Adcox that they were seeking his cooperation in an ongoing criminal investigation being conducted by a federal grand jury in Baton Rouge, Louisiana. Adcox invited the agents in and they all sat down around the dining room table. The agents questioned Adcox for the next one hour and forty-five minutes about his knowledge of, and involvement in certain stock market trades of the publically traded company, Shaw Group, Inc (“Shaw”) in July 2012, around the same time that Shaw was in merger talks with another company.

According to Agent Hattier, Adcox eventually admitted that his good friend, Jesse Roberts, advised him to buy stock in Shaw based on insider information that Roberts had received from Roberts' brother-in-law and Shaw employee, Scott Zerinque. Adcox then forwarded the tip to at least one other person. Adcox admitted to the agents that he netted approximated $40,000 from his trading activity in Shaw stock and options.
On March 4, 2015, a federal grand jury returned a two count indictment against Adcox for securities fraud (insider trading), and conspiracy to commit same…… Adcox, via counsel, filed the instant motion to suppress any incriminating statements made by him during his interview on the grounds that the agents obtained his statements involuntarily through material misrepresentations, trickery, and deception.

The court finds that Agent Hattier did not directly or explicitly promise leniency or immunity to Adcox, in exchange for Adcox's truthfulness or cooperation. Furthermore, Hattier truthfully disclosed to Adcox that he was not the focus of the investigation – at that time. Rather, the agents were trolling for bigger fish, namely Roberts and Zeringue. Hattier hoped to obtain Adcox's cooperation in the government's case against these other individuals. At the hearing, however, Hattier candidly admitted that by providing useful information against Roberts and Zerinque, et al, Adcox necessarily would have to incriminate himself. Furthermore, by incriminating himself, Adcox would be providing prosecutors with leverage in their efforts to preserve his cooperation going forward. Needless to say, Hattier did not disclose these additional details to Adcox before commencing the interview.

On the other hand, Hattier advised Adcox that it was his choice whether to answer questions or not. Furthermore, if he did elect to answer questions, it was important for him to respond honestly. Adcox opted to answer the agents' questions, but, on more than occasion, denied any third-party influences or knowledge in his decision to purchase Shaw stock/options. If this was untrue, as his later statements suggest, Adcox potentially made a false statement to an FBI agent in violation of 18 U.S.C. § 1001(a)(2).

In an effort to prompt Adcox's cooperation, Agent Hattier advised Adcox that the agents did not feel that he had been completely truthful up to that point. They told him that they were aware that Adcox had spoken to other individuals about his Shaw trades and that he had traded in Shaw because he had received material, non-public information about Shaw from these other individuals. In other words, the agents advised Adcox that they believed that he potentially had committed a crime. Although the agents may have exaggerated the extent of their knowledge, they already possessed phone and trade records which suggested that a possible crime had been committed.

The agents assured Adcox that, his transgressions notwithstanding, the FBI remained more interested in his honesty, together with his cooperation against the other subjects. Because of the agents' repeated assurances that the focus of the investigation was on others, and the agents' attempts to enlist Adcox's cooperation in those efforts, Adcox undoubtedly hoped for leniency in exchange for his disclosures. However, he could not, in good faith, expect more than that. The agents offered no guarantees or explicit promises. In fact, on the several occasions during the interview that Adcox sought to clarify his status, Agent Hattier advised him that prosecution decisions remained the province of the U.S. Attorney; the FBI could only provide input into those decisions. Moreover, the FD-302, which the agents undoubtedly provided to the prosecutors, documented the nature and extent of Adcox's cooperation. In other words, Agent Hattier upheld his end of any implied bargain. Furthermore, according to Agent Hattier, Adcox ultimately decided not to cooperate with the prosecution, thereby negating the basis for any claim for leniency.

In addition, by all appearances, Adcox was intelligent and educated, with the requisite knowledge to execute his own on-line stock and option trades. The agents never raised their voices, or exerted any emotional or physical pressure for Adcox to respond to questions. In fact, they advised Adcox that it was his choice whether to answer their questions or not. Even Ms. Adcox characterized the encounter as an “interview,” rather than an “interrogation.” Adcox's statements were not the product of coercive police conduct.

Upon consideration of the totality of the circumstances, the undersigned finds that the government has demonstrated by a preponderance of the evidence the voluntariness of defendant's incriminating statement(s).

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Court rejects the testimony of Dr. Allison Redlich on false confession issues

In People v. Powell (June 2014) the Supreme Court, Queens County, New York rejected the proffered testimony of Dr. Allison Redlich on false confession issues, stating “Dr. Redlich's testimony was insufficient in that it not only failed to establish that her expertise is generally accepted in the scientific community, but also her testimony failed to establish whether or not there was a known or potential rate of error in her methods of research.” From the court’s opinion:

Dr. Redlich testified about the John E. Reid and Associates, Inc. (hereinafter “Reid”) technique of interrogation, which she stated was the most often cited technique of interrogation used in the United States. To her knowledge, there are other techniques utilized to conduct interrogations. She stated that in her opinion they were all psychologically oriented and rely upon the principles of social influence which are similar to the Reid technique.

Dr. Redlich stated that she knew the steps of interrogation, although she failed to explain the basis of her knowledge. In her opinion the three steps of interrogation are 1) isolation; 2) tell the suspect that you know they are guilty; and 3) convert the oral statement to a written statement. Dr. Redlich testified that the goal of the Reid method is for the police to get a written confession.

Dr. Redlich also discussed two risk factors she believed were associated with false confessions. The two main categories she discussed were dispositional risk factors and situational risk factors. She defined dispositional risk factors as ones that are personal to the suspect that may render a suspect vulnerable. Situational risk factors are those that pertain more to the interrogation tactics such as the presentation of false information or evidence, lying to suspects, the length of interrogation and matters of that nature.

Dr. Redlich testified that mental illness is considered a dispositional risk factor and in her opinion someone who is mentally ill is more likely to give a false confession since it renders them more vulnerable. Dr. Reidlich opined that mentally impaired individuals as a whole are more prone to confusion, depression, fatigue, and delusions which she stated are very common mental health symptoms. Therefore, she concluded that their ability to withstand what she termed “psychologically oriented interrogation techniques” is much lower than people without this type of vulnerability.

Dr. Redlich discussed the second main category, situational risk factors that she believes play a significant role in false confessions. An example she gave was that lengthier interrogations are more likely to result in a false confession. She said that confessions typically last about one to two hours in length. She then stated that the “Reid Technique” manual of interviewing and interrogation states that three to four hours is sufficient. Dr. Redlich went on to state that when you look at proven false confessions those interrogations tend to be lengthier. She testified that 80 percent of proven false confessions were six hours or longer and the average length of time for the interrogation was sixteen hours.

Dr. Redlich stated that the field of false confession studies is generally accepted within the scientific community and that one of the primary ways to establish general acceptance is through peer reviews and getting publications in peer review journals. She said peer review is important because in her opinion peer review establishes that the “sciences follow a scientific method.”

In the instant case, the court finds that based upon the credible evidence presented to the court the defendant failed to meet its burden of establishing through the testimony of Dr. Allison Redlich that expert testimony on false confessions is readily acceptable in the scientific community. Dr. Redlich's testimony did not convince this court that an expert's testimony on the issue of false confessions is scientifically reliable.

Here Dr. Redlich's testimony merely established that it was her belief, as well as others who wrote articles and performed studies, that individuals can falsely confess. This testimony did not establish to this court's satisfaction that the proffered expert testimony on false confessions testimony has resulted in reliable scientific data or that there is a consensus in the relevant scientific community pursuant to Frye. Moreover, Dr. Redlich's testimony was insufficient in that it not only failed to establish that her expertise is generally accepted in the scientific community, but also her testimony failed to establish whether or not there was a known or potential rate of error in her methods of research.

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Court restricts the testimony of Dr. Richard Leo on false confession issues

In Jimerson v. State (June 2016) the Court of Appeals Indiana, upheld the lower court’s decision to restrict the testimony of Dr. Richard Leo on false confession issues. From the court’s opinion:

At trial, Jimerson presented the testimony of Dr. Richard Leo (“Dr.Leo”), a law professor and expert in the field of false confessions. Dr. Leo opined that the “Reid method” of interrogation is widely used but “might be too effective” in some cases. Dr. Leo explained that interviewing and interrogation are different concepts. According to Dr. Leo, the goal of interviewing is information gathering, and the goal of interrogation is to produce incriminating evidence from a person a police officer believes to be guilty of a crime. The overall strategies used in interrogation derived from the Reid method are two-fold: convince the subject that his or her continued resistance is futile and identify a benefit that the subject will gain from confessing.

Dr. Leo described hallmarks of the method and provided some examples. An interrogation would typically take place in an isolated setting, where the officer might better be able to develop rapport with the subject. The officer might confront the subject with real or false evidence, or a combination, to convince the subject that there is so much evidence against him or her, he or she is essentially “trapped.” Dr. Leo described this as an “evidence ploy.” The officer might also “spin a scenario,” such as an accident scenario, which might “imply mercy” would be forthcoming. A subject might be made to feel that there was a window of time in which to provide an explanation and keep others from thinking the worst of his or her conduct. Ultimately, a subject was to be persuaded that a confession would be in his or her best interests.

After Dr. Leo provided this background, defense counsel confirmed that Dr. Leo had watched the videotape of Jimerson's statement. Defense counsel then ventured: “And there was a point where,” prompting an objection from the prosecutor. The jury was excused and the parties presented argument as to the breadth of false confession testimony….. The trial court ruled that Dr. Leo could testify “about the phenomena of false confessions” and about “problematic practices” but the jury was to determine whether a particular technique had been applied in Jimerson's case. The trial court expressed concern that allowing testimony such as “I saw Detective Tarrh do this” would invade the province of the jury.

Together with extensive background testimony from Dr. Leo, the jury was provided with Jimerson's statement in audio, video, and written form. Moreover, Jimerson testified and explained his subjective view, that is, he had said certain things he later recanted because he was “very scared.” He testified that he had been led into scenarios, told that his DNA was all over Spicer's body and house, and encouraged to demonstrate that he was not a monster. As such, the jury had been given adequate information to apply its common knowledge and experience. Where a jury is able to apply concepts without further assistance, highlighting individual exchanges or vouching for the truth or falsity of particular evidence is invasive…. The defendant was convicted.

Jimerson has not demonstrated that the trial court abused its discretion in the restriction of expert testimony.

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26-hour period of videotaped interrogation was not coercive

In People v. Clark (May 2016) the Supreme Court, Appellate Division, Fourth Department, New York rejected the defendant's contention that the [lower] court erred in refusing to suppress statements he made to the police during the 26–hour period of videotaped interrogation. From the court’s opinion:

We reject defendant's contention that the court erred in refusing to suppress statements he made to the police during the 26–hour period of videotaped interrogation. It is axiomatic that the length of the interrogation period “does not, by itself, render the statement[s] involuntary” …. Instead, we must view “ ‘the totality of the circumstances surrounding the interrogation’ ” …. The detective ascertained defendant's date of birth, that he had completed the 10th grade and was obtaining his GED, that he could read and write, that he was not under the influence of alcohol or marijuana, and that he had never before been read his Miranda rights. The detective “did not restrict himself to a mere reading of the rights from a card ... [but][i]nstead ... described the rights in more detail and simpler language, verifying that defendant understood [them]” …. We further conclude that his will was not overborne by coercive police tactics…. Contrary to defendant's contention, the tactics used by the police, i.e., telling defendant that they thought he was a “good kid,” stating that he would feel better when he told the truth, and challenging the inconsistencies in his statement with the evidence, were not improper or unusual where, as here, there is no evidence that defendant was of subnormal intelligence or susceptible to suggestion.

Indeed, defendant never admitted that he committed the offenses, and he changed his version of events regarding the murders at the Bernice Street home, admitting that he was present when the murders were committed by someone else, only when confronted with fingerprint evidence establishing that he was at the home. Defendant thereafter admitted that he was present at the Skuse Street murder when he implicated another person for that murder. He explained that it was that other person who also had committed the murders at the Bernice Street home, and not the three people whom he initially implicated, but whom the police established had alibis for the time those murders were committed.

The record establishes that defendant was provided with food, water, cigarettes, and bathroom breaks throughout the period… The record further establishes that there were two breaks in the interrogation, approximately six and one-half hours and five hours long, respectively, when the police were pursuing leads and that defendant slept during those breaks….. Moreover, we note that the length of the interrogation was in large part owing to “the nature of the crime[s] and defendant's conflicting and constantly changing stories to the police,” which the police investigated and attempted to verify. Although defendant made four requests to make a telephone call throughout the period, it was not until the end of the period of interrogation that he requested to call his mother. A 17–year–old defendant is considered an adult for the purpose of criminal prosecution and defendant does not contend that the police engaged in “ ‘deception or trickery’ ” to isolate him from his family, nor does the record support a conclusion that the police did so.

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Defense expert on false confession issues should have been allowed to testify

In People v. Evans (May 2016) the Supreme Court, Appellate Division, First Department, New York ruled that the lower court should have allowed the defense expert to testify on the issue of false confessions. From their opinion:

In June 2010, defense counsel requested that the court appoint Dr. Sandford Drob as an expert to conduct the psychological evaluation of defendant in regard to the confessions he provided to the police…. Counsel stated that he intended Dr. Drob to testify at trial about his assessment of defendant and generally on the subject of false confessions, including social scientific testimony about the phenomenon and causes of false confessions and tests like the Gudjonnson Suggestibility Scales (GSS), which measure a person's vulnerability to suggestion.

In response, the People objected to expert testimony on the general subject of false confessions and defendant's susceptibility to making a false confession, but did not object to assignment of an expert to evaluate defendant's ability to waive his Miranda warnings and/or to testify as to defendant's possible cognitive deficits.

The People maintained that there was no basis for Dr. Drob to conclude that particular traits that defendant possessed would make him more susceptible to making a false confession.

On June 2, 2011, prior to jury selection, the court ruled that it would not permit Dr. Drob to testify about the phenomenon of false confessions.

To the extent the denial was based on the People's argument that the science of false confessions is not generally accepted within the scientific community, the Court of Appeals has now made clear that the “phenomenon of false confessions is genuine [and] has moved from the realm of startling hypothesis into that of common knowledge, if not conventional wisdom” (Bedessie, 19 NY3d at 156)…… As the Court of Appeals found, “[T]here is no doubt that experts in such disciplines as psychiatry and psychology or the social sciences may offer valuable testimony to educate a jury about those factors of personality and situation that the relevant scientific community considers to be associated with false confessions” (Beddesie, at 161). Indeed, there are “factors or circumstances correlated by psychologists with false confessions”. Therefore, “expert evidence on [the] factors that the scientific community has determined may contribute to a false confession[,]” is warranted in the proper case. Although the trial court did not have the benefit of the Bedessie decision at the time of its ruling, it cannot now be said that expert testimony that is relevant to the defendant and the interrogation before the court may be precluded because the science of false confessions is not generally accepted in the scientific community.

Accordingly, the court improvidently exercised its discretion in denying defendant's motion to present expert testimony on false confessions to assist the jury in connecting the unique factors present in defendant's interrogation with the scientific research linking those factors with false and unreliable confessions, and a new trial is warranted. While we are certainly mindful of the fact that a trial court is vested with the discretion to determine the admissibility and limits of expert testimony, here, the court summarily rejected defendant's motion to introduce expert testimony on the issue of false confessions, solely on the grounds that the science of false confessions was not generally accepted within the scientific community, without undertaking any analysis or otherwise weighing the relevant legal issues.

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Failure to acknowledge unambiguous request to talk to a lawyer renders confession inadmissible

In US v. Groce (July 2016) the US District Court, M.D. Alabama, Northern Division, found that the defendant’s request to talk to a lawyer was unambiguous and that the investigators should have terminated the questioning. From the court’s opinion:

Once in custody, officers transported Groce to the ACSO to interview him… ACSO Captain Jim Steele conducted the interview, which was video-recorded and began at 1:17:48 P.M. Captain Steele advised Groce of his rights…. He initially denied responsibility for the robberies, and his discussion with Captain Steele included the following exchanges:

Steele: What would you say if maybe some of the stuff with your initials on it were collected also, your DNA was collected, your fingerprints were collected?
Groce: Mmm, hmm.
Steele: Mr. Groce, you want to sit there and tell me you weren't there?
Groce: I wasn't there. I need ... I need to talk to a lawyer ‘cause ...
Steele: Then ... then ... then who might have been there?
Groce: I don't know ‘cause I need to get me a lawyer ASAP because I don't know what y'all talking about. I was sleeping at the time.
Steele: Okay. Who has access to your car keys?

And then a few minutes later:

Steele: ... are going to get their money. Because they were right. When it comes time for Mr. Groce to go to court do you think they are going to believe the videos, the fingerprints, the witnesses, the whole night? Do you think they are going to believe that or do you think they are going to believe, “well he said he was asleep”? I'm just being for real, Mr. Groce, okay? Now don't you think it's time to be honest with me?
Groce: I'm being honest, but umm ... like this right here, I do need to talk to a lawyer about that.
Steele: Well, do you want to talk to a lawyer...
Groce: Yeah ...
Steele: ... or do you want to help me with the other people involved?
Groce: Umm ...
Steele: ‘Cause see here's how I feel about it: you know something.

Captain Steele did not stop the interview during this exchange, and he did not take any steps to provide Groce with counsel.

Ultimately, the court finds that Groce's statements, when placed in the context of the circumstances surrounding them, constituted an unequivocal invocation of his right to counsel—if not upon his first two mentions of an attorney, then at least by his third and final request for one. Within an eight-minute period of uninterrupted questioning, Groce stated “I need to talk to a lawyer,” “I need to get me a lawyer ASAP,” and “I do need to talk to a lawyer about that.”…. . Rather than ask questions designed to clarify whether Groce truly intended to invoke his right to counsel after the first two references to an attorney, Captain Steele continued on his line of questioning about the robberies. …. On the third instance, however, Captain Steele did acknowledge the request, asking Groce, “Well, do you want to talk to a lawyer ... or do you want to help me with the other people involved?” …. The court will make two observations regarding this conversation, as depicted on the interrogation video, that are not readily observable from the transcription. First, Groce emphasized the word “do” in the statement “I do need to talk to a lawyer.”; ... Second, not only did Groce interrupt Captain Steele with the word, “yeah,” after Steele said “Well, do you want to talk to a lawyer ...,” but Groce also nodded his head affirmatively when he answered.

Ultimately, “[t]he law in this area is clear: once an accused requests counsel, the officer cannot ask questions, discuss the case, or present the accused with possible sentences and the benefits of cooperation.” …. This rigid rule is “designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights….

Under Edwards, Groce should not have been “subject to further interrogation by the authorities until counsel ha[d] been made available to him, unless [he] himself initiate[d] further communication.”

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Court rules that the investigators went too far in lying to the defendant about evidence and insisting that he confess

In Campos v. Stone (August 2016) the US District Court, N.D. California, ruled that the defendant’s incriminating statements were obtained in violation of his due process rights. From the District Court’s opinion:

Until the time of his arrest in December 2010, Campos regularly helped out at his wife's home day care facility. His wife had been operating the facility for many years, and Campos had assisted her since 2000. On December 22, 2010, a child at the day care, whose initials are K.M. and who was five years old at the time, told her mother that Campos had touched her genitals under her clothes. After K.M.'s mother called the police, they arrested Campos, brought him to the station, took his fingerprints and a blood sample, put him in an interrogation room, and cuffed one of his hands to a table…. They advised Campos of his Miranda rights.

Before the interrogation began, Detective Emilio Perez entered the interrogation room wearing blue rubber gloves, carrying a manila envelope and a cotton swab. Perez proceeded to swab Campos' fingers and hands, then placed the swab in the envelope and left the room. Several minutes later, Perez and another detective, Matthew DeLorenzo, returned and began interrogating Campos. During the interrogation, the investigators reminded Campos they had taken his fingerprints, told him they'd collected DNA from his blood and his hands, and told him they'd also collected DNA and fingerprint evidence from K.M.'s genitals…. They told Campos that the results of the DNA and fingerprint tests were ‘going to tell us the truth,‘ and that if there was a match, they'd know he touched K.M.'s genitals inside her pants…. DeLorenzo was the primary interrogator and asked questions in English; Perez attempted to translate to Spanish for Campos.

The DNA and fingerprint tests were a ruse, and as the Court of Appeal majority noted, that ruse ‘was a major theme of the interrogation.‘… While the officers were waiting for the supposed ‘results‘ of their tests, they told Campos that the technology was ‘very advanced,‘ that their tests could detect a person's fingerprints on a child's body for up to a month after an incident, and that their tests could even tell which part of a person's body a particular DNA sample came from: from the head, the face, or the hands…. At one point, the investigators also pretended to go to the laboratory to retrieve the results of the DNA and fingerprint tests, only to return several minutes later and explain they had to wait a little longer for the results to be complete…. Eventually, another officer brought the interrogators an envelope containing the fake test results… Before opening the envelope, the officers said K.M. had told them that Campos touched her ‘inside her vagina,‘ and also ‘on her butt.‘… Campos denied that he did so… The officers said: ‘You need to speak with the truth. This is your last opportunity. Because the D.A. makes the decision. But if you lie to us and that evidence, we're going...we're going to send it and the other thing that you don't say, will look real bad for you.‘…. The officers told Campos they were confident that ‘your DNA, your finger prints – your normal finger prints and the ones that have your DNA – are going to be on the body of that girl.‘… The officers then told him that if the results inside the envelope were blue, this would mean the results were positive.

Then the officers opened the enveloped and announced: ‘They're blue. Okay, so you're lying to us. You have to tell us the, the truth.‘…. Campos continued strenuously to deny touching K.M.'s genitals... They said to Campos: ‘But this is here, it doesn't lie. This doesn't tell us lies, okay. What motive – this is the truth. So you're going to tell me that you didn't do anything and the D.A. is going to see this, what's he going to say? That it's – you're lying.‘

Campos continued to insist he did not touch K.M.'s genitals. Id. at 507. In an effort to get Campos to reconcile the allegedly irrefutable proof that he'd touched K.M.'s genitals with his story that he did not molest her, the officers introduced the possibility that he'd touched her there by accident: ‘So... possibly [it] was an accident that you touched her down there?‘… (‘Or...maybe it was something that was [an] accident. ‘). When Campos continued to resist the idea that he touched K.M.'s genitals, even accidentally, the officers said: ‘The scientists already have your DNA. If you lie to me, the D.A. isn't going to like that you're lying to me, okay... Nevertheless, when the officers again inquired whether Campos touched K.M. ‘in her intimate part,‘ Campos repeatedly responded, ‘no, no.‘

At this point it bears noting that the written transcript does not tell the full story of the interrogation. The transcript itself is jumbled, but the video and audio show just how much confusion reigned during the interrogation. The officers were speaking to Campos quickly and loudly. They were often speaking over one another – one in English and the other in Spanish. Some of DeLorenzo's English questions and statements were translated to Spanish by Perez; others were not. When Campos speaks, it is difficult to determine which question or comment he is responding to, because the questions and comments come in such rapid fire succession, with people talking over one another, in different languages. And often when Campos tried to deny touching K.M.'s genitals, the officers often did not let him speak, quickly interrupting him to insist that his response was inconsistent with the scientific evidence and would create problems with the district attorney.

In any event, Campos eventually began to struggle to reconcile the irrefutable scientific evidence (which he clearly believed existed) with his insistence that he did not touch K.M.'s genitals. He began (at the officers' invitation) to discuss the concept of accidentally touching K.M.'s skin, while continuing to deny touching her on or near her genitals under her clothes… For example, at one point Campos said, ‘maybe I accidentally put my hands inside,‘ but seconds later it became clear he was trying to say that perhaps he touched K.M.'s back underneath her clothes as he was pushing her away from a baby he was holding and that K.M was trying to kiss….. All the while, Campos referred back to the evidence that the officers continued to insist was irrefutable, saying things like, ‘that's why my hand evidence comes up,‘ and ‘You've already found my finger prints.‘ ... The officers were not satisfied with Campos' answers, however, and when he continued to deny he had touched her inappropriately, the officers forcefully responded, ‘No, no, no. We want to know the truth.‘

Eventually, in response to the officers' continued insistence that the evidence was irrefutable and that he must tell a ‘truth‘ consistent with that evidence, Campos appeared (although it's difficult to know for sure, given the chaotic nature of the interrogation) to allow for the possibility that he could have accidentally touched K.M.'s genitals under her clothes... At one point the officers asked, ‘is that possible that when you pushed her it entered from above?‘ ‘Maybe,‘ Campos responded... They asked, ‘could it possibly have been just like that?‘ Campos responded, ‘Maybe, I don't [k]now.‘ … They asked, ‘But it was an accident[?]‘ Campos responded, ‘Maybe yes.‘

Shortly thereafter, Campos stated he needed an attorney, and the officers terminated the interrogation…. He was charged with two counts of sexual penetration with a child ten years of age or younger, … and five counts of committing a lewd or lascivious act on a child under 14 years of age, …..

With respect to the admissibility of his statements to the police, Campos primarily argues that the petition should be granted under section 2254(d)(1) because the Sixth District Court of Appeal majority opinion was contrary to or an unreasonable application of clearly established Supreme Court precedent. Campos is correct to a point – the majority's legal analysis contains various analytical flaws.

For example, although the majority intoned the correct ‘totality of the circumstances‘ standard for assessing the voluntariness of Campos' statement, as the dissenting justice observed, it appears the majority disassociated Campos' personal characteristics from the circumstances of the interrogation.

If that's what the majority was doing, it would be contrary to clearly established Supreme Court case law. Rather than inquiring whether Campos fell below some random threshold level of sophistication, or whether any of the individual tactics employed was problematic in isolation, the majority should have simply inquired whether the will of a person like Campos would have been overborne by the combination of the particular tactics used by the officers, such that he would have been compelled to make the statements about accidental touching that they wanted him to make. ‘The due process test takes into consideration 'the totality of all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation….. For that reason, ‘[c]ourts must 'weigh, rather than simply list,’ the relevant circumstances, and weigh them not in the abstract but 'against the power of resistance of the person confessing.'

A second and related problem lies in the majority's conclusion that the manner in which the officers conducted the interrogation was not unduly coercive. In reaching this conclusion, the majority neglected to recognize that far less coercion is needed to extract an involuntary statement of this type. In most cases, when a suspect alleges that the police coerced a statement out of him, the statement is a true ‘confession.‘ By contrast, in this case, although the statements were incriminating, Campos never actually confessed to the crime. Rather, he attempted to reconcile, in response to the officers' demands that he do so, the allegedly irrefutable ‘scientific‘ evidence that he touched K.M.'s genitals with his insistence that he did not molest her. It seems obvious – and counsel for the respondent did not dispute this point at the habeas hearing –that far less coercion is needed before a suspect will start feeling compelled to make a statement of this type. And a person of limited sophistication, such as Campos, is particularly susceptible to this type of coercion. It's one thing for officers to tell a suspect, ‘Your buddy says you did it.‘ Even someone like Campos would conclude he has multiple options for how to respond to that question, such as ‘he's lying,‘ or ‘you're lying.‘ It's quite another thing to insist to someone like Campos, after conducting fake fingerprint and DNA tests, that science has irrefutably proven something he is denying. In that scenario, it's no surprise that someone like Campos would, in response to the officers' insistence that he must at least allow for the possibility of an accident, conclude he has no choice but to do so.

…. In this case, the Court of Appeal majority a made similar, and similarly egregious, factual error in its findings about what happened during the interrogation. Specifically, the majority mischaracterized what the officers were doing when they refused to accept Campos' denials that he touched K.M.'s genitals. In determining that the police officers had not made improper promises of leniency, the majority noted that ‘mere exhortations by interrogators to tell the truth are permissible,‘ and then concluded that the officers' refusal to accept Campos' denials, and their insistence that he provide a statement consistent with the fake DNA and fingerprint evidence, ‘are more properly characterized as urging defendant to tell the truth.‘…. Although it's technically true that the officers made no direct promise of leniency, the majority's determination that the officers were merely ‘urging defendant to tell the truth‘ was an objectively unreasonable characterization of what the officers did in the interrogation. The officers did not merely urge Campos to tell the truth. They insisted, loudly and repeatedly, and in rapid-fire fashion, that he must give a statement consistent with their fake DNA and fingerprint evidence, which they insisted was ‘the truth.’

In a similar mischaracterization of the same facts, the majority described the officers as telling Campos that it would look bad for him ‘if his statements were inconsistent with the supposed DNA evidence.‘. The majority's use of the word ‘if‘ suggests that the officers were impliedly conceding that Campos' denials might not be contrary to the scientific evidence. But in actuality, the officers repeatedly telegraphed to Campos that it was going to look bad for him because his statements were indisputably inconsistent with the supposed fingerprint and DNA evidence. Indeed, the officers insisted that the only way it would not ‘look bad for him‘ was if he changed his statements to acknowledge the possibility of an accidental touching.

Insisting a suspect will be in trouble with the prosecutor unless he makes a statement consistent with fake scientific evidence, which the officers repeatedly characterize as the objective ‘truth,‘ is vastly and categorically different from merely urging a suspect to tell the truth in a vacuum. The majority's determination that the officers were merely urging Campos to tell the truth is ‘not a plausible reading of the interview.‘

…. As previously noted, the due process voluntariness test ‘takes into consideration 'the totality of all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation.’ …. ‘The determination 'depend[s] upon a weighing of the circumstances of pressure against the power of resistance of the person confessing.’ It ‘ 'is not limited to instances in which the claim is that the police conduct was inherently coercive,’ but 'applies equally when the interrogation techniques were improper only because, in the particular circumstances of the case, the confession is unlikely to have been the product of a free and rational will.'

Campos' statements were not voluntary, largely for the reasons articulated by the dissenting justice in the Court of Appeal. ‘Campos was not sophisticated according to any relevant definition of that term.‘… Campos ‘grew up in Mexico, where he left school in the third grade. He spoke little English, and he had worked as a farm laborer and a forklift driver for most of his life.‘ … Campos ‘had no criminal record, he had never been arrested, and he had no experience with police interrogations.‘.. . His responses during the interrogation made clear he had no familiarity with the evidentiary matters the officer discussed with him. Nor, contrary to the apparent view of the trial judge and the Court of Appeal majority, is it necessary to conclude that a suspect has some actual disability (say, a learning disability) before considering how the suspect's characteristics interacted with the circumstances of the interrogation. Either way, Campos' personal characteristics ‘made him highly susceptible to the officers' aggressive tactics.‘

To be sure, officers are not barred from using deception. But the law provides that the use of deceptive tactics cuts against voluntariness. … And the officers' deception must be considered in light of all the circumstances, including the nature of the deception itself. After all, there are different kinds of deception – telling a suspect that his buddy ratted him out is one thing; an elaborate ruse involving fabricated scientific evidence is quite another, particularly when the officers rely so heavily on that ruse, while interrogating a suspect who was so unsophisticated.

Moreover, the interview itself was chaotic and confusing, with the officers frequently talking over Campos and each other. Every time Campos tried to deny that he had touched the victim's genitals (or touched her there other than accidentally), the officers aggressively rejected his statements (often refusing to let him finish his sentences) and told him their tests conclusively proved otherwise. At one point, DeLorenzo interrupted Campos' explanation that maybe he had at most accidentally touched the girl's torso and not her genitals by shouting ‘No, no, no, no, no, no,‘ while leaning forward and wagging his finger inches from Campos' face…. When Campos again tried to deny that he touched her, DeLorenzo leaned forward further to shut him up, told him to ‘Calm down‘ in Spanish, and again said ‘No, no, no.‘ It was clear from this and many other interactions that DeLorenzo and Perez would accept nothing other than a statement that Campos had touched the victim's genitals at least accidentally. As Justice Marquez explained, the police were ‘unrelenting‘ in their insistence that Campos accede to their version of the truth (‘a version that was, of course, predicated on lies,‘ i.e., the fake forensic evidence), and indeed were actively hostile to any attempts by Campos to give explanations inconsistent with their supposed ‘results.’

And their hostility came with the clear implication that Campos risked harsh consequences if he did not accede to their version of the facts: they repeatedly told him the district attorney wouldn't like it if he didn't tell them something consistent with their DNA and fingerprint evidence. While those invocations of the district attorney were not per se impermissible, it does not follow that they are irrelevant. The officers' message that Campos would be treated more harshly if he did not admit to accidental touching, combined with all the other circumstances, weighs heavily against finding Campos' confused responses to the interrogators were voluntary…

For all these reasons, it should be no surprise that someone like Campos would eventually feel compelled to allow for the possibility of an accidental touching in response to the officers' vehement, often shouted, and frequently repeated exhortations to give a statement consistent with his fingerprints and DNA being on the child's genitals, particularly when he was in close physical proximity to that child on a regular basis. Indeed, under similar circumstances, even a person of greater sophistication and psychological fortitude than Campos could well have felt compelled to allow for the possibility that ‘maybe‘ he could have accidentally touched the victim in some way. As for Campos himself, it is clear that his statements in this case are inherently unreliable and were involuntary under the totality of the circumstances.

Click here for the complete opinion.

Court rejects expert testimony that defendant suffered from mental impairment that rendered him uniquely susceptible to coercive police tactics

In Platas v. Scribner (February 2016) the US District Court, C.D. California rejected the defendant’s claim that his confession (convicted of murder and armed robbery) was coerced and that ““[with [his] pre-existing characteristics leaving him susceptible to manipulation, the highly coercive context of his interrogation overpowered any ability he had to freely choose whether to provide a statement.” From the District Court’s opinion:

Petitioner contends that his confession “was coerced by the Culver City detectives who promised him protection and leniency in exchange for saying that he brought in a gun and was part of the robbery” and that his recorded statement accordingly was “unreliable,” “false” and “the result of Petitioner doing what he thought he must do to save himself from imminent danger and a potential death sentence.” … More particularly, Petitioner contends that “[with [his] pre-existing characteristics leaving him susceptible to manipulation, the highly coercive context of his interrogation overpowered any ability he had to freely choose whether to provide a statement.” … However, as detailed below, considering the totality of all of the surrounding circumstances and the record as a whole, Petitioner has not met his burden of establishing a constitutional violation.

Petitioner contends that his personal characteristics “demonstrate a unique susceptibility to coercion.” (defense expert Dr. Deborah Budding, a board certified neuropsychologist, conducted an examination of Petitioner to evaluate “his intellectual and executive function currently and at the time of his arrest to determine the source, duration, nature and [e]ffect of any cognitive impairment, and to assess what if any [e]ffect did environmental influences have on his decision-making processes.” ) … In support, he cites Dr. Budding's conclusions that Petitioner suffers from “significantly impaired executive function and presents as highly dependent upon benign external structure”; that Petitioner has “significant cognitive processing deficits and trouble adjusting himself to novel and ambiguous circumstances”; that his processing speed was one to two standard deviations slower than expected for his age; and that Petitioner's Full Scale IQ was lower than 93% of the population.

Several factors, however, do not square with Petitioner's apparent claim that his mental impairments as identified by Dr. Budding preclude a conclusion that his recorded, inculpatory statement was a product of Petitioner's free will under the circumstances. Foremost, Petitioner freely admitted at the evidentiary hearing that he wanted the detectives to know that he did not shoot the victim, and that he voluntarily told the police that Lopez was the shooter, that he voluntarily described Lopez, and that he voluntarily told the police where and with whom Lopez lived. These non-inculpatory statements were made within the same short time frame and in the same physical surroundings that preceded Petitioner's inculpatory, recorded statement. Yet, Petitioner makes no claim as to these non-inculpatory statements that the circumstances when viewed through the lens of his mental impairments undermined his ability to exercise his free will.

Further, Dr. Budding concluded that Petitioner's “ability to store material in memory over time appears to be unimpaired[;]” she also found that his working memory is impaired, that he requires time to learn and process new and novel information, had “difficulty adjusting to new demands[,]” and “required significant repetition and time to learn material.” As applied here, it would thus appear that the nature of Petitioner's deficits is incompatible with his essential claim that he processed and committed to memory (so as to be able to repeat) a detailed, fabricated, and false inculpatory statement fed to him by the detectives over the course of a few minutes, yet would not be incompatible with a conclusion that he relayed information which he had had time to process and had previously committed to memory. Although Dr. Budding viewed Petitioner's response to the detective's initial questioning as “sort of strikingly fragmented[,]” did not “flow naturally[,]” and could be consistent with a person with Petitioner's impairments having been instructed moments before to say at some point that he brought in a gun, Dr. Budding was not asked and did not volunteer her view as to the entire, very detailed statement and whether its flow and substance was consistent with a person with Petitioner's impairments having been instructed to give it, or whether, as suggested above, it would have been too much for him to take in and efficiently regurgitate. And, Petitioner's claim is not merely that he was coerced into saying that he brought in the gun and helped plan the robbery, but that the whole of the recorded statement was inadmissible because involuntary.

Further, in his testimony at the evidentiary hearing, Petitioner was responsive, alert, gave cogent answers to questions asked by both sides, asked for clarification when a question was not clear, and explained his answers when asked to do so. He exhibited no difficulty considering each question and providing an answer notwithstanding the relatively quick pace of the examinations, particularly cross-examination, and makes no post-hearing claim to the contrary. Moreover, Petitioner's manner of speaking, tone of voice, and affect at the evidentiary hearing is not dissimilar to that evident in the recording of his taped confession.

In conclusion, the question is whether Petitioner's free will not to make a statement was overborne by fear induced by improper and coercive police tactics. The totality of the circumstances do not establish by a preponderance of the evidence that what admittedly began as a voluntary conversation motivated by Petitioner's desire to exculpate himself from responsibility as the shooter, evolved into an elaborate and deliberate effort to extract false admissions from him against his free will. Because Petitioner has not met his burden of establishing a constitutional violation, habeas relief is not warranted on this ground.

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Using deception during the interrogation of a defendant classified as mentally retarded is not coercive

In Turner v. Coleman (July 2016) the US District Court, W.D. Pennsylvania upheld the trial court’s decision to deny the defendant’s claim that his incriminating statements should have been excluded because the investigator lied to him during the course of the interrogation which allegedly caused the defendant’s will to be overborne, and that the trial court failed to take into consideration the fact of his mental retardation in reaching their conclusion. From the District Court’s opinion:

The trial court conducted a hearing on the suppression motion and made credibility determinations: “[t]he Court accepts as credible the testimony of Trooper Lipniskis and rejects as not credible the testimony of Defendant Turner…. .

The trial court then went on to address the issue of whether Trooper Lipniskis' tactics of misleading Petitioner amounted to police coercion of Petitioner's statements/confession… The trial court noted that “[o]nce an individual has been told of his or her Miranda rights, any statement elicited from him or her during a continuing interrogation is inadmissible in evidence against him or her, unless the totality of the circumstances surrounding the interrogation indicates that the accused in fact knowingly and voluntarily decided to forgo his or her Miranda rights.” ... The trial court then went on to note that
[f]actors that affect the validity of the waiver of Miranda rights include: (1) the duration and methods of interrogation; (2) the conditions of detention; (3) the manifest attitude of the police toward the accused; (4) the accused's physical and psychological state; and (5) any conditions which may serve to drain one's powers of resistance to suggestion and undermine one's self determination.

Considering all of the foregoing factors, the trial court then went on to find that Petitioner's statements were not the product of coercion.

The Court finds that Trooper Lipniskis' use of a misleading statement during the questioning of Defendant was not so manipulative or coercive that it deprived the Defendant of the ability to make a free and unconstrained decision to confess. Therefore, the Court finds that Trooper Lipniskis' misleading statement to Defendant that doctors informed Trooper, while he was out of the interview room and Defendant was writing his first statement, that the victim's injuries were not consistent with the Defendant's version of what happened does not rise to the level of compulsion or coercion and thus are not within Miranda's concerns.

Petitioner fails to show that the trial court's reasoning was contrary to or an unreasonable application of United States Supreme Court precedent on Fifth Amendment Miranda rights or voluntary confessions/statements. Indeed, we find the foregoing to not be contrary to or an unreasonable application of United States Supreme Court precedent. Frazier v. Cupp, 394 U.S. 731, 739 (1969) (“The fact that the police misrepresented the statements that Rawls had made is, while relevant, insufficient in our view to make this otherwise voluntary confession inadmissible. These cases must be decided by viewing the ‘totality of the circumstances,’ and on the facts of this case we can find no error in the admission of petitioner's confession.”).

To the extent that Petitioner argues that Trooper Lipniskis' use of deception was per se a violation of Miranda or a per se cause of his statements to be coerced, Petitioner is simply wrong on the law…. (“The Supreme Court has noted a distinction between police trickery as a means of coercion and police trickery as mere strategic deception; ‘[p]loys to mislead a suspect or lull him into a false sense of security that do not rise to the level of compulsion or coercion to speak are not within Miranda's concerns.’…. In other words, a law-enforcement agent may use some psychological tactics or even actively mislead a defendant in order to obtain a confession, provided that a rational decision remains possible.”).

To the extent that Petitioner argues that the trial court erred as a matter of fact in finding that Trooper Lipniskis' use of deception did not cause Petitioner's statements to be coerced, Petitioner fails to rebut the factual determinations of the trial court by pointing to any evidence other than perhaps the fact of his mental retardation. Petitioner seemingly argues that the trial court failed to take into consideration the fact of his mental retardation.

The trial court was aware of Petitioner's potential mental retardation as early as October 8, 2009 and, and certainly, no later than November 3, 2009, when the trial court had available to it an expert report by Dr. R. William Tallichet, Psy.D. who opined that Petitioner was mentally retarded within the meaning of Atkins…. The trial court did not issue its decision on Petitioner's suppression motion until November 6, 2009.

Hence, the evidence of record affirmatively rebuts Petitioner's seeming contention that there was no evidence of Petitioner's retardation before the trial court when it made the decision on Petitioner's suppression motion. Nor can we accept Petitioner's suggestion that merely because Petitioner's mental retardation was not specifically mentioned in the trial court's November 6, 2009 opinion denying Petitioner's suppression motion, that the trial court did not consider such in its decision. The trial court specifically invoked the totality of the circumstances test, and specified that coming within the totality of the circumstances test is a consideration of “(4) the accused's physical and psychological state; and (5) any conditions which may serve to drain one's powers of resistance to suggestion and undermine one's self determination.” Presumably, the fact of Petitioner's mental retardation falls within these categories.

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The confession of Brendan Dassey (“Making a Murderer”) ruled to be involuntary

In Dassey v. Dittmann (August 2016) the US District Court, E.D. Wisconsin, ruled that Brendan Dassey’s confession was involuntary. Brendan Dassey’s confession to involvement in the murder of Teresa Halbach was depicted in the Netflix series “Making a Murderer”. The District Court ruled that the confession was the result of promises of leniency.

The District Court stated that, “the state courts unreasonably found that the investigators never made Dassey any promises during the March 1, 2006 interrogation. The investigators repeatedly claimed to already know what happened on October 31 and assured Dassey that he had nothing to worry about. These repeated false promises, when considered in conjunction with all relevant factors, most especially Dassey’s age, intellectual deficits, and the absence of a supportive adult, rendered Dassey’s confession involuntary under the Fifth and Fourteenth Amendments.”

From the District Court’s opinion:

The court must look to all relevant facts to determine whether Dassey’s March 1 confession was voluntary. The interview occurred mid-day rather than in the early morning hours, or at a time when Dassey might expect to be asleep… The questioning was not particularly prolonged. Although Dassey was in the interview room from about 11:00 a.m. until 4:00 p.m., the relevant questioning spanned less than three hours… Dassey was left alone for less than two hours, the longest single stretch being about 50 minutes. He was offered food and beverages. Although the interview occurred in a police station, it was in a “soft interview room,” with carpeting and upholstered furniture as opposed to a room with an uncarpeted floor, a hard table, and chairs. Wiegert advised Dassey of his rights under Miranda, including the right to not answer questions, to stop the questioning, and to have an attorney appointed for him and present during any questioning.

Dassey exhibited no signs of agitation or distress throughout the interview (he sobbed only after being told he was under arrest). The investigators maintained calm tones, never using aggressive or confrontational tactics. If these were the only relevant facts, they would tend to support a finding that the March 1 confession was voluntary. But when assessed against all of the circumstances of Dassey’s interrogation, these facts are overshadowed by far more consequential facts.

For starters, Dassey was a juvenile – only 16 years old – at the time of his confession.

Also significant is the fact that investigators questioned Dassey without the presence of a arent or other adult looking out for his interests. It is true that neither federal law nor the United States Constitution requires that the police even inform a juvenile’s parents that the juvenile is being questioned or honor a juvenile’s request that a parent or other adult (other than a lawyer) be present during questioning… However, because “[i]t is easier to overbear the will of a juvenile than of a parent or attorney, ... in marginal cases–when it appears the officer or agent has attempted to take advantage of the suspect’s youth or mental shortcomings–lack of parental or legal advice could tip the balance against admission.”

Not only did Dassey not have the benefit of an adult present to look out for his interests, the investigators exploited the absence of such an adult by repeatedly suggesting that they were looking out for his interests: “I wanna assure you that Mark and I both are in your corner, we’re on your side ...” and “... I’m your friend right now, but I ... gotta believe in you and if I don’t believe in you, I can’t go to bat for you.”

Moreover, Dassey’s borderline to below average intellectual ability likely made him more susceptible to coercive pressures than a peer of higher intellect… Although he attended regular education classes, Dassey received special education support services.

Ten years earlier, his IQ was assessed at an overall score of 74.

Crucial in the voluntariness analysis is what the investigators told Dassey at the beginning of the interrogation. Fassbender assured Dassey, “from what I’m seeing ... I’m thinking you’re all right. OK, you don’t have to worry about things.” In isolation, such a statement would not be a problem. Based on what the investigators actually knew at that time, they very possibly believed Dassey to be merely a witness.

However, less than two minutes later, Wiegert assured Dassey, “We pretty much know everything[.] [T]hat’s why we’re talking to you again today.” … The combination of these statements, that the investigators already “pretty much know everything” and that Dassey did not “have to worry about things,” is an entirely different matter. The investigators were not merely telling Dassey, “Based upon what you have told us so far, we don’t think you have anything to worry about.” Rather, what they told Dassey was, “We already know what happened and you don’t have anything to worry about.” The investigators’ assertions that they already knew what happened and assurances that Dassey did not have anything to worry about were not confined to an isolated instance at the beginning but rather persisted throughout the interrogation.

Dassey’s conduct during the interrogation and his reaction to being told he was under arrest clearly indicate that he really did believe that, if he told the investigators what they professed to already know, he would not be arrested for what he said.

The investigators’ statements were not merely ambiguous promises to Dassey that cooperating would lead to a better deal or that the investigators would “stand behind” him or “go to bat” for him, … Rather, the investigators’ collective statements throughout the interrogation clearly led Dassey to believe that he would not be punished for telling them the incriminating details they professed to already know. While at one point Wiegert did rotely say, “We can’t make any promises...” this single, isolated statement was drowned out by the host of assurances that they already knew what happened and that Dassey had nothing to worry about.

Thus, the state courts’ finding that there were no “promises of leniency” was “against the clear and convincing weight of the evidence….”

The Supreme Court has long recognized that a false promise is a powerful force in overcoming a person’s free will…. Consequently, “[a] false promise of lenience is ‘an example of forbidden [interrogation] tactics, for it would impede the suspect in making an informed choice as to whether he was better off confessing or clamming up.’”

More than merely assuring Dassey that he would not be punished if he admitted participating in the offenses, the investigators suggested to Dassey that he would be punished if he did not tell “the truth.” Especially when the investigators’ promises, assurances, and threats of negative consequences are assessed in conjunction with Dassey’s age, intellectual deficits, lack of experience in dealing with the police, the absence of a parent, and other relevant personal characteristics, the free will of a reasonable person in Dassey’s position would have been overborne. Once considered in this proper light, the conclusion that Dassey’s statement was involuntary under the totality of the circumstances is not one about which “fairminded jurists could disagree.”

That said, the court does not ascribe any ill motive to the investigators. Rather than an intentional and concerted effort to trick Dassey into confessing, what occurred here may have been the product of the investigators failing to appreciate how combining statements that they already “knew everything that happened” with assurances that Dassey was “OK” and had nothing to worry about collectively resulted in constitutionally impermissible promises.

Click here for the complete decision.

Is it proper to introduce as evidence the videotaped interrogation of the defendant when no incriminating statements were made?

In State v. Gaudreau (June 2016) the Supreme Court of Rhode Island considered the lower court’s decision to allow the admissibility of the defendant’s videotaped interrogation even though there were no incriminating statements made. The Supreme Court concluded that “Ultimately, it is our opinion that the trial justice should have conducted a balancing test and carefully weighed the low probative value of the recorded comments from the officers against the prejudicial impact to defendant. But, to the extent that there was any error in admitting the videotaped interrogation, we conclude that it was harmless.” In their analysis the Supreme Court discuss the decisions that other states have made on this issue. From the Supreme Court’s opinion:
The parties battled over the admissibility of the videotape over two days, and it is significant that defendant repeatedly argued that he was not challenging his own comments on the tape being shown to the jury, but was instead arguing that the detectives' comments were irrelevant and highly prejudicial. However, the first trial justice denied defendant's motion with the following explanation:

“My basis for allowing the video to be played in the [s]tate's case is that the [c]ourt finds that the video statement is relevant and probative. Having viewed it several times now, the [c]ourt finds that the video contains what can be viewed depending on again the jury's assessment of the evidence but certainly there are statements in this video that can be viewed as false statements made by this defendant in the hopes of extracting himself from suspicious circumstances.

The issue that this Court must grapple with is novel. Although we have not yet adopted a rule requiring that all police interrogations be audio or video recorded, several organizations within the state have either adopted such rules or have recommended that police departments adopt them. Now, as more interrogations are being recorded, this Court is faced with new issues that are associated with those recordings.

Often, defendants move to suppress confessions that have not been recorded because “[b]oth the Rhode Island and the Federal Constitutions bar the use in a criminal trial of a defendant's involuntary statements.” … It is a frequent argument that a videotape is the best evidence of whether a defendant's inculpatory statements have met that test.
However, when a defendant does not challenge the admission of his own statements as being involuntary, but, as is the case here, seeks to suppress the statements of the police, trial courts must engage in a very different type of analysis. In these situations, it is our opinion that the evidence should be viewed like any other evidence; other grounds may exist for the introduction of such evidence, in its entirety or in a redacted form, pursuant to the Rhode Island Rules of Evidence.
Several states have addressed the particular issue of whether a recorded interrogation is admissible when the defendant neither confesses nor challenges his statements as involuntary, but rather attacks the admissibility of comments made by police that are contained in the recording. The law is quite unsettled on this point, and there is a clear split in authority between the jurisdictions that have addressed the issue, with no apparent majority.

Some courts have found the evidence to be inadmissible opinion testimony that should not be admitted indirectly in the form of a recording, and they have held that such statements must be redacted. In other words, those jurisdictions have reasoned that if the police statements would not be admissible from the witness stand, they should not come in through the backdoor via a videotape…. Other courts have held that such statements from police during an interrogation should not automatically be excluded as opinion testimony, but, rather, must be analyzed under the existing rules of evidence.

…. the Supreme Court of Kansas addressed a similar issue in a trial for rape and sodomy, the only difference being that the defendant, throughout the interrogation and in later statements, repeatedly changed his story about the events of the night in question. The defendant told the police several varying versions of the facts, from having never seen the victim that night, to being too drunk to remember, to her agreeing to have oral sex for $25, and more variations, all the while denying that he committed rape. The court held that, under its rules, a trial court has no discretion to allow one witness to testify about another's credibility, and so reviewed the admission of the tape de novo…. The court then held that the trial court erred when it admitted the videotape, explaining the following:
“A synthesis of the referenced case law leads us to conclude that it was error for Detective Hazim's comments disputing Elnicki's credibility to be presented to the jury. The jury heard a law enforcement figure repeatedly tell Elnicki that he was a liar; that Elnicki was ‘bullshitting’ him and ‘weaving a web of lies.’ * * * A jury is clearly prohibited from hearing such statements from the witness stand in Kansas and likewise should be prohibited from hearing them in a videotape, even if the statements are recommended and effective police interrogation tactics. As far as context for Elnicki's answers are concerned, the State could have safely accomplished its goal simply by having Detective Hazim testify and point out the progression of Elnicki's various stories as the tape was played—minus Hazim's numerous negative comments on Elnicki's credibility. The absence of a limiting instruction merely compounded the already serious problem, misleading the jury into believing that Hazim's negative comments carried the weight of testimony.”

Thus, even where the defendant's story shifted throughout the course of the interview, that court found that the statements of the detective on credibility were absolutely prohibited.

Similarly, an intermediate appellate court in Pennsylvania held that videotaped comments by the police accusing the defendant of lying “were akin to a prosecutor offering his or her opinion of the truth or falsity of the evidence presented by a criminal defendant, and such opinions are inadmissible at trial.” … The court held that each of the defendant's own statements made during the interrogation—wherein she admitted her relationship with the victim and the co-defendant, and to her presence at the scene, among other things—were relevant to determination of her guilt as an accomplice to the murder…. Ultimately, the court held that instances where police accused the defendant of lying, where the defendant did not respond to questioning, and where police stated that they had a strong case against the defendant had to be redacted.

The Supreme Court of Wyoming analyzed whether the trial judge committed plain error in allowing the state to present improper vouching evidence of a deputy in a recorded video and in testimony from the stand that he met with the victim and that he believed she was being truthful in her accusation. The court held that, although the defendant had not objected to any of that evidence, the deputy's statements “violated in a clear and obvious way th[at] [c]ourt's long-standing rules prohibiting a witness to express opinions about the accused's mendacity and guilt and about the alleged victim's truthfulness and credibility * * *.”

A majority of the Supreme Court of Washington held…. that an officer's accusations amounted to opinion evidence regarding the defendant's veracity should not have been admitted, but that the trial court did not commit reversible error in admitting the officer's accusations because of the wealth of evidence against the defendant. The four-justice minority, who opined that the evidence was admissible, rested their decision on the fact that the evidence was not “testimony” because it was neither given under oath nor from the witness stand, nor was it offered to prove the officer's opinion.

On the other hand, courts have found that statements made by officers during the course of an interrogation were not admitted in error. The majority of those courts held that the comments by law enforcement were probative because they provided context for the defendants' shifting stories during the course of the interrogations.

A small minority of states that have considered the issue have held that a police officer's statements have probative value for providing context even where the defendant, as here, made no inculpatory statements and had not changed his story during the interrogation.

…. the Supreme Court of Kentucky reviewed the range of decisions that have addressed this issue, noting that “it is quite difficult to synthesize a majority rule, especially given that the evidentiary rules in these various states differ significantly.” The court declined to adopt a rule that such evidence should be per se excluded as opinion testimony, reasoning that “[a]lmost all of the courts that have considered the issue recognize that this form of questioning is a legitimate, effective interrogation tool.”…. However, the court also “recognize[d] that the introduction of such comments, no doubt, entails the possibility that the jury will misunderstand and accord to those comments an impermissible weight during deliberation.” While specifically disagreeing with the Supreme Court of Kansas that the comments must be redacted, the court held that the appropriate remedy was for the court to provide the jury “a limiting admonition” “to inform the jury that the officer's comments or statements are ‘offered solely to provide context to the defendant's relevant responses.’

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Court rules defense expert testimony on the credibility of the victim inadmissible

In State v. Evans (May 2016) the Missouri Court of Appeals, Western District upheld the lower court’s opinion that the defendant’s proffered expert testimony on the credibility of the victim was inadmissible. From the Court of Appeals opinion:
Evans contends the circuit court erred in excluding the testimony of Dr. Bruce Cappo, a psychologist who evaluated the victim's medical records. Evans argues that Cappo would have informed the jury about the victim's mental health issues, specifically, her bipolar disorder, and demonstrated that the victim did not accurately perceive Evans's actions due to her disorder.

Cappo's report:

In summary, [the victim]'s various mental health diagnoses very much could affect her ability to perceive, to tell the truth, to know the ramifications of her telling the truth or a lie, and to understanding the consequences of her actions. She could also be prone to exaggeration and an increased need for attention. She may not respond to situations in the same way as an average person because of her mental illness and the rate of occurrence in teens relative to the population is low.

Evans argued that Cappo's testimony was not an impermissible opinion on the victim's credibility but, rather, was merely an explanation to the jury of a matter outside of its understanding: how the victim's various mental health diagnoses affect her ability to perceive and tell the truth. After hearing the parties' arguments and reviewing Cappo's report and the case law, the court ruled that Cappo would not be allowed to testify regarding the victim's credibility. Later, Evans made an offer of proof by submitting Cappo's report. Again, the court sustained the State's motion to exclude Cappo's testimony. Evans argues that the court abused its discretion in doing so.

Missouri strictly prohibits expert evidence on witness credibility because it invades the province of the jury. “Expert testimony that comments directly on a particular witness' credibility, as well as expert testimony that expresses an opinion with respect to the credibility or truthfulness of witnesses of the same type under consideration invests ‘scientific cachet’ on the central issue of credibility and should not be admitted.”…. Thus, in State v. Taylor, 663 S.W.2d 235, 241 (Mo. banc 1984), the Court held that expert testimony that the victim had not fantasized the rape and suffered from rape trauma syndrome was inadmissible, as it was an express opinion about her credibility. The Court explained that, “ ‘[o]nce a witness is deemed competent, expert opinions concerning the witness's reliability in distinguishing truth from fantasy are generally inadmissible because such opinions invade the jury's province to make credibility determinations.’ ”

Based on the offer of proof, Cappo would have testified that the victim had mental health diagnoses that affected her ability to perceive and to tell the truth. This proffered testimony constituted expert testimony that was particularized to the circumstances of this case, i.e., the victim's mental state in light of her specific mental health diagnoses, and related directly to the victim's credibility. Such testimony would have undoubtedly invested “scientific cachet” on the central issue of the victim's credibility. Because Cappo's testimony would have invaded the province of the jury, the circuit court did not abuse its discretion in excluding it.

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