Legal Updates Summer 2017
Objectionable interrogator tactics
In Sander v. The City of Dickinson, North Dakota (August 2017) the US District Court, D. North Dakota, found that in an arson investigation the investigators used “highly questionable tactics (if not ultimately coercive when used collectively)” during the interrogation of the plaintiff.
From the court’s opinion: There is no dispute that Hope's advice of fully advising plaintiff of his Miranda rights was not followed. Rather, at least one of the defendants made the decision to employ what he euphemistically referred to as a “soft-Miranda” caution, omitting the parts about plaintiff having the right to consult with an attorney and that, if he could not afford one, that an attorney would be appointed…. After several hours of interrogation, which employed the use of highly questionable tactics (if not ultimately coercive when used collectively), plaintiff confessed and was held in custody. In addition to the use of only the “soft-Miranda, the tactics of the two officers interrogating him included:
- Suggesting to plaintiff he likely would get nothing more than a slap on the wrist if he confessed (most likely probation with a requirement of restitution) but a long jail sentence if he did not. This included suggestions that they would recommend this lenient treatment and that the prosecutors almost always followed their recommendations.
- Suggesting to plaintiff that, if he came clean, he likely would be allowed to go home for the present, but he was facing immediate incarceration if he did not.
- Refusing to allow plaintiff to leave the interrogation room on more than one occasion as well as twice denying him the use of a bathroom after he requested he be allowed to do so.
- Interrogating plaintiff in what arguably was a physically threatening manner by positioning plaintiff in the corner of the small interview room and then pulling their chairs up close to him.
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Court allows testimony of false confession expert Dr. Richard Leo
In Harris v. City of Chicago (June 2017) the US District Court, N.D. Illinois, Eastern Division, ruled to allow some testimony from false confession expert Dr. Richard Leo.
From the court’s opinion: In his expert report, Dr. Leo explains the study of police interrogations and false confessions and proffers the following opinions in relation to this lawsuit:
(1) It has been well-documented in the empirical social science research literature that hundreds of innocent suspects have confessed during police interrogation to crimes (often very serious crimes such as murder and rape) that it was later objectively proven they did not commit;
(2) Nicole Harris's account of her multiple interrogations during her more than 30 hours at Area 5 on May 14-16, 2005 is consistent with the social science empirical research literature on the types of interrogation techniques and investigative practices that are associated with, increase the risk of, and are known to cause innocent individuals to falsely confess;
(3) The accounts of the various Chicago police investigators who interrogated Nicole Harris for between 28 and 30 hours on May 14-16, 2005, are not consistent with the empirical findings of the social science research literature on the factors associated with and known to increase the risk of and/or cause false and unreliable confessions;
(4) In her account of what occurred during her police custody and/or interrogations on May 14-16, 205, Nicole Harris describes the use of interrogation techniques and practices that were guilt-presumptive, accusatory and theory-driven. Nicole Harris describes interrogation procedures whose goal was not to find the truth but to break down her denials of guilt and elicit from her a confession to killing her son Jaquari Dancy;
(5) Before interrogating her, the investigators misclassified Nicole Harris as guilty when, in fact, they had no evidence whatsoever to indicate that Jaquari Dancy's death was anything other than accidental nor that Nicole Harris had any role in bringing it about;
(6) The initial spontaneous “confession” attributed to Nicole Harris, which she denies, is inconsistent with empirical social science research on police interrogation and confessions, as well as with logic and the physical evidence in this case;
(7) The multiple interrogations described by Nicole Harris were both physically and psychologically coercive: Nicole Harris's account of what occurred during her multiple interrogations contains interrogation techniques that are known to cause a suspect to perceive that he or she has no choice but to comply with their demands and/or requests and that are known to increase the risk of eliciting involuntary statements, admissions and/or confessions;
(8) Nicole Harris's account of what occurred during her multiple interrogations contains numerous interrogation techniques, methods, and strategies that have been shown by social science research to increase the risks of eliciting false and unreliable statements, admissions and/or confessions (i.e., situational risk factors) when misapplied to the innocent. These included false evidence ploys, minimization, implied and explicit threats, and implied and explicit promises;
(9) Nicole Harris was also at a heightened risk during her interrogations of making and/or agreeing to a false and unreliable confession because of her personality traits (i.e., personal risk factors), specifically her submissiveness and high suggestibility, as well as specific personality traits she had at that time (her overwhelming grief over the loss of her son);
(10) The interrogations described by Nicole Harris involved documented instances of police interrogation contamination (i.e., leaking and disclosing non-public case facts) and scripting that contravene universally accepted police interrogation training standards and best practices, and which increased the risk that Nicole Harris' confession statement would, misleadingly, appear to be detailed and self-corroborating; and
(11) The confession statement of Nicole Harris contains factual and logical errors, inconsistencies, and other indicia of unreliability that are the hallmarks of false and/or unreliable confessions.
In his report, Dr. Leo discussed how scientific researchers evaluate the likely reliability and unreliability of an incriminating statement, admission, or full confession. In particular, he stated that “scientific researchers analyze the fit between the suspect's post-admission narrative and the crime facts and/or corroborating evidence derived from the confession (e.g., location of the missing murder weapon, loot from a robbery, the victim's missing clothing, etc.).”
The purpose of evaluating the fit between a suspect's post-admission narrative and the underlying crime facts and derivative crime evidence is to test the suspect's actual knowledge of the crime. If the suspect's post-admission narrative corroborates details only the police know, leads to new or previously undiscovered evidence of guilt, explains apparent crime fact anomalies and is corroborated by independent facts and evidence, then the suspect's post-admission narrative objectively demonstrates that he possesses the actual knowledge that would be known only by the true perpetrator and therefore is strong evidence of guilt. If the suspect cannot provide police with the actual details of the crime, fails to accurately describe the crime scene facts, cannot lead the police to new or derivative crime evidence, and/or provides an account that is full of gross errors and disconfirmed by the independent case evidence, then the suspect's post-admission narrative demonstrates that he fails to possess the actual knowledge that would be known only by the true perpetrator and is therefore strongly consistent with innocence. Indeed, absent contamination, the fit between the suspect's post-admission narrative and both the crime scene facts and the derivative crime evidence therefore provides an objective basis for evaluating the likely reliability of the suspect's incriminating statements.
In summary, Dr. Leo's expert testimony regarding false confessions will be helpful to explain why false confessions happen and how to recognize false confessions, thus allowing the jury to use this framework to apply to the facts of this case. Finally, in her response brief, Plaintiff acknowledges that Dr. Leo cannot testify that her interrogation was coercive or that she gave a false confession because these are questions for the jury. The Court therefore denies this aspect of Defendants' Daubert motion.
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Court limits the rebuttal testimony on false confession issues of Professor Paul G. Cassell to the testimony of Dr. Richard Leo (referenced in the previous case)
In Harris v. City of Chicago (July 2017) the US District Court, N.D. Illinois, Eastern Division, ruled to limit the rebuttal testimony of Professor Paul G. Cassell regarding several issues related to false confessions. Plaintiff Nicole Harris has moved to bar the testimony of Defendants' false confession/coercive interrogation rebuttal expert witness Professor Paul G. Cassell pursuant to the Federal Rules of Evidence and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
From the court’s opinion: In his expert report, Professor Cassell rebuts Plaintiff's false confession/coercive interrogation expert Dr. Richard A. Leo. Professor Cassell lists the materials he reviewed before forming his opinions in this matter…… Based on these materials, Professor Cassell opines that Dr. Leo's “proposed expert testimony is unreliable because he has not reliably reviewed the record in this case.” … He further posits that Dr. Leo's opinion about Plaintiff's confession and its “fit” is based on a faulty assumption because “even true confessions frequently diverge from crime scene facts.”
… Cassell additionally asserts that Dr. Leo cannot reliably offer an opinion about whether the psychological techniques used during the police questioning of Plaintiff increased the risk of extracting a false confession, including techniques such as guilt presumptive questioning, lengthy interrogation and sleep deprivation, false evidence ploys, minimization and maximization techniques, promises and threats, psychological coercion, and personality traits…. Last, Professor Cassell contends that Dr. Leo's opinion is not based on reliable science.
In her Daubert motion, Plaintiff argues that although Professor Cassell's legal credentials are “impeccable,” he is not qualified to rebut Dr. Leo's opinions on false confessions and coercive interrogations based on the science of social psychology. …. Although Professor Cassell's work experience establishes that he has knowledge of false confessions and coercive interrogations in the context of the criminal justice system, there is no indication in the record that Professor Cassell has researched the specialized area of coercive interrogations and false confessions drawing on the principles of rational decision making, perception, and interpersonal influence, or that he has systematically analyzed documented factors that correlate with false confessions. Further, Professor Cassell has not trained as a social scientist nor contributed to the study of coercive interrogation and false confessions that would allow him to rebut Dr. Leo's testimony based on the science of social psychology. Indeed, Professor Cassell admits that he does not have formal training in psychology, sociology, or social psychology and that he has never conducted scientific experiments in relation to false confessions.
Simply put, although Dr. Leo also has a law degree, he has also conducted extensive laboratory and “real world” research on police interrogation practices, the psychology of interrogation and confessions, psychological coercion, police-induced false confessions, and erroneous convictions for well over two decades. Furthermore, Dr. Leo has taught interrogation training courses to police departments throughout the United States, published numerous articles in peer-reviewed scientific journals (in addition to law review articles), and has observed well over 100 felony interrogations as part of his research. In this context, Professor Cassell is not Dr. Leo's peer in the field of social science as it relates to false confessions and coercive interrogations….
That leaves Professor Cassell's opinions based on his extensive legal experience and distinguished career as a prosecutor, federal judge, and law professor, namely, his rebuttal opinions about Dr. Leo's assessment concerning the “fit” of Plaintiff's confession. Included in this opinion is Professor Cassell's assessment that “[e]ven true confessions frequently diverge from the crime scene facts.”… Because Professor Cassell is qualified to proffer these opinions based on his own experience and observations, as well as his review of scientific studies, the Court denies this aspect of Plaintiff's motion to bar.
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The language of the Miranda warnings – how precise does it have to be?
In Carter v. People (July 2017) the Supreme Court of Colorado upheld the lower court’s decision that the advisement of the Miranda rights reasonably conveyed to the defendant the right to counsel before and during interrogation.
From the court’s opinion: With regard to the advisement administered to the defendant, itself, the record of the suppression hearing indicated that just prior to that interrogation, the lead detective warned the defendant as follows:
Since you're in custody, before I can even talk to you I have to do the formal little rights things, okay? So you have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to have an attorney. If you cannot afford to hire a[n] attorney, one will be appointed to you without cost. Do you understand those?
Following this advisement, the defendant answered questions for somewhere between ninety minutes and two hours. In doing so, he admitted to being the individual shown on a security videotape the day before the murders approaching Marshall-Fields in a sports bar, after which Marshall-Fields was visibly disturbed. The defendant denied, however, that he made any threats and denied that he made this approach at the behest of others. He further denied any association with Ray or other individuals considered suspects by the police. After the interrogation turned confrontational, the defendant invoked his rights to an attorney and to remain silent, and accordingly, the interrogation was terminated.
With regard to the warnings in particular, the [US Supreme] Court expressly summarized its reasoning by holding that the individual “must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.”
Although the Court made clear that the warnings themselves are an absolute prerequisite, without which sufficient awareness for an effective waiver of those rights cannot be found, it indicated at the same time that no “talismanic incantation” was intended.
Rather than being advised that he could consult with a lawyer before answering any particular question, …. the defendant in this case was advised in the present tense, “You have the right to have an attorney,” immediately after being advised that before the detective could even talk to him, she had to do “the formal little rights things,” a clear reference to the advisement of rights that followed forthwith. In addition to the fact that the defendant was simultaneously advised in the present tense, “So you have the right to remain silent,” which the defendant does not suggest could reasonably be understood to refer only to a right to remain silent later at trial rather than at the time of interrogation, the defendant's advisement of his right to counsel was not followed by any suggestion that it would not apply until some later time.
… However, the Supreme Court's Miranda jurisprudence could not more clearly establish that the adequacy of the warnings, as distinguished from the effectiveness of the defendant's waiver of the rights contained in them, is to be assessed objectively, for what the warnings would “reasonably convey,” or would convey to a “reasonable suspect,” “in their totality.” … While characterizing the Miranda warnings as “the formal little rights things” appears to be an attempt by the detective to minimize the significance of waiving those rights, and as the Supreme Court has noted, law enforcement agencies run the risk of obtaining ineffective waivers by introducing ambiguity into the Miranda advisement, …. nevertheless minimizing the significance of waiving the Miranda rights does not, in and of itself, mean the rights have not been reasonably conveyed.
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Court excludes the testimony of Dr. Charles Honts on false confession issues
In State v. Casey (December 2016) the Missouri Court of Appeals, Eastern District upheld the lower court’s decision to exclude the testimony of Dr. Charles Honts on false confession issues.
Here, Defendant sought to admit the testimony of Dr. Charles Honts, who would have testified that the police interrogation of Defendant here presented several risk factors for a false confession. The trial court initially stated the court would likely exclude this testimony. At trial, Defendant renewed his request to call Dr. Honts to testify. At that time, the trial court made its ruling excluding this evidence, noting that “the jury can see all this on videotape as opposed to just having testimony about it, which even gives them a better ability to see the circumstances of the statements that are made by [Defendant] and by the police officers.”
The trial court did not abuse its discretion in excluding this evidence. Missouri courts have upheld similar exclusions of evidence.
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Court excludes the testimony of Dr. Solomon Fulero because “it invades the province of the jury”
In Boyer v. Vannoy (July 2017) the US Court of Appeals, Fifth Circuit, upheld the state appellate court’s decision to reverse the trial court's decision to allow Dr. Fulero to testify on confessions and interrogations.
From the court’s opinion: We finally turn to Boyer's claim regarding the exclusion of Dr. Fulero's testimony.
The state appellate court reversed the trial court's decision to allow Dr. Fulero to testify on confessions and interrogations. Boyer argues that the validity and credibility of his confession was central to his defense. He avers that the exclusion of Dr. Fulero's testimony constituted the use of a “per se rule to bar all psychological evidence relevant to false confessions from trials in Louisiana.” This categorical bar, Boyer maintains, violated his constitutional right to, most significantly, present a complete defense. Boyer argues, “[h]ere, as in Crane, Rock, Washington, and Chambers, the exclusion of evidence unconstitutionally ‘undermined fundamental elements of the defendant's defense.’ ”
The State responds that Dr. Fulero's testimony did not meet the Daubert criteria for admission, arguing each of the Daubert factors. The State further contends that the appellate court's interlocutory judgment was not a categorical ban, and that Boyer could have explored the conditions of the interrogation and confession without calling Dr. Fulero. The State asserts that Dr. Fulero's testimony would have confused or misled the jury, and that his testimony “was a waste of time when the jury can make its own determination of the truth or falsity of the petitioner's confession unaided by an expert witness.” Finally, the State argues that any error in barring Dr. Fulero from testifying was harmless.
The state appellate court decision referred to its pre-trial interlocutory decision barring Dr. Fulero's testimony. That decision stated:
Allowing expert testimony regarding “false confessions” invades the province of the jury. The jury is most capable of ascertaining the truth and validity vel non of confessions--not experts. Allowing such testimony by incrementally allowing experts to eventually testify as to the guilt or innocence of the defendant cannot be allowed.
We AFFIRM the district court.
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If the police have possession of the defendant’s car keys and cell phone, is he free to leave the station?
In Commonwealth v. Yandamuri (April 2017) the Supreme Court of Pennsylvania upheld the lower court’s ruling that the defendant was not in custody at the police station, even though the police had possession of his car keys and cell phone.
From the court’s opinion: Appellant arrived at the Upper Merion Police Station at approximately 3:15 p.m. and was not advised of his Miranda rights until 11:03 p.m. He argues that because he was subjected to custodial interrogation during this time without receiving Miranda warnings, the various statements he gave to detectives (which outlined his whereabouts at the time of the murder/kidnapping, but did not expressly inculpate him in the crimes) should have been suppressed. He concedes that the detectives repeatedly advised him that he was not in custody and that he was free to leave. Appellant contends, however, that the totality of the circumstances demonstrates that he was unable to leave because the detectives retained his car keys and cell phone and a police officer's badge was required to exit the building. He further submits that, during this period, the detectives denied his numerous requests to call his pregnant wife, which rendered him “incommunicado by blocking contact with the outside world.”. In Appellant's view, no reasonable person in his situation would have felt free to leave.
The court found: that Appellant's questioning did not occur in an interrogation room, but rather in an office with two desks; that the door was closed for privacy reasons, but was not locked; that Appellant was offered food and drink; that Appellant was permitted to leave the room unaccompanied to use the restroom; and, significantly, that Appellant was not restrained and was repeatedly advised that he was free to leave and was not under arrest. While the court did not address specifically the retention of Appellant's car keys and cell phone, it acknowledged that, during this period, Appellant consented to searches of his car, cell phone, apartment, laptop, and flash drive as well as a DNA buccal swab and photographing of his body.
A reasonable person in Appellant's situation would not view the detectives' acquisition of his car keys and cell phone as restricting his freedom to end the encounter because Appellant himself provided these items to the detectives and executed voluntary consent forms permitting the officers to search his cell phone and car. Notably, Appellant cites to no portion of the record establishing that the detectives denied his requests for the return of his cell phone and car keys so that Appellant could stop the interview and leave the police station. To the contrary, the record indicates that Appellant never stated that he wanted to leave, never asked to stop the questioning, and never refused to answer questions.
Additionally, Appellant's contention that he could not exit the police station without displaying an officer's badge is unsupported. The record establishes that the door to the office in which Appellant was being questioned was closed for privacy reasons, but not locked. Further, while the record suggests that the detectives and Appellant entered the police station through a private back door,.. Appellant points to no evidence establishing that a badge was required to leave the building or that the private back door was the exclusive exit. Finally, we do not view Appellant's purported inability to call his wife as a significant restriction on his freedom of movement as the circumstances indicate that Appellant could have heeded the detectives' directive that he was free to leave and gone home to speak with his wife or check on her welfare.
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Defendant’s incriminating statements were inadmissible because the Miranda warnings were deliberately delayed
In US v. Aguilera (August 2018) the US District Court, W.D. North Carolina found the defendant’s incriminating statements were inadmissible because the Miranda warnings were deliberately delayed.
From the court’s opinion: The Supreme Court noted in Missouri v. Siebert that “Miranda addressed ‘interrogation practices ... likely ... to disable [an individual] from making a free and rational choice’ about speaking.”….. When the reading of Miranda is delayed, the admissibility analysis hinges on whether the delay is deliberate…. When the delay is deliberate, courts in the Fourth Circuit follow the Siebert presumptive framework… To determine the nature of the delay, the Court explained, “[T]he focus is on facts apart from intent that show the question-first tactic at work.” …. Setting aside an analysis of the officer's subjective intent and focusing on the objective facts, the Siebert plurality set forth five factors to determine whether the question-first tactic was deliberate, and whether midstream Miranda warnings were sufficient:
(1) the completeness and detail of the questions and answers to the first round of questioning;
(2) the two statements' overlapping content;
(3) the timing and setting of the first and second rounds;
(4) the continuity of police personnel; and
(5) the degree to which the interrogator's questions treated the second round as continuous with the first.
If these factors point to deliberate delay in the giving of a Miranda warning, a rebuttable presumption of compulsion arises as to any subsequent, post-warning statement
In this case, the Siebert factors weigh in favor of suppressing the post-Miranda statements. Considering the first and second factors, although the completeness and detail of the interrogation and the content of the two statements differed to a degree pre- and post-Miranda, they still overlap. Additionally, the third factor weighs in favor of inadmissibility since both pre- and post-Miranda conversations transpired in the same interview room without interruption. As to the fourth factor, the same two agents handled both pre- and post-Miranda interviews, so the interrogating personnel remained continuous. And finally, regarding the fifth factor, the pre- Miranda conversation appeared to lay a foundation for the post-Miranda interrogation. The post-Miranda interview was a development of the pre-Miranda conversation in terms of culpability, cooperation, fears, and possible sentence. These five factors point to deliberate delay, creating a presumption of compulsion in the post-Miranda interview.
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13 factors to consider in determining whether a police interrogation was coercive
In People of the State of Colorado, Plaintiff-Appellant, IN the INTEREST OF Z.T.T., Juvenile-Appellee (May 2017) the Supreme Court of Colorado reversed the lowed court’s decision to suppress the defendant’s confession.
From the court’s opinion: In the fall of 2015, the victim, F.G.—age thirteen at the time—told the La Plata County Sheriff's Office that seven years prior, the defendant, Z.T., had forced her to give him oral sex on several occasions at BMX bicycle races. At the time of the alleged assaults, F.G. was six and Z.T. was thirteen. Z.T., at the time that F.G. made the allegations in 2015, was in Army basic training at Fort Benning, Georgia. A La Plata County sheriff's deputy formally requested that Agent Kevin Kendall of the Army's Criminal Investigations Division (“CID”) at Fort Benning interview Z.T. about F.G.'s allegations.
Z.T.'s commanding officer escorted him to the interview. Agent Kendall advised Z.T. of his Miranda rights and that the interview concerned allegations of a “child sex assault.” Initially, Z.T. invoked his right to an attorney and Agent Kendall said, “I'll let your command know and they're going to come pick you up, and then ... whatever you want to do from there is pretty much the gist of it.” Z.T. then decided to revoke his request for counsel and agreed to proceed without counsel. Z.T. signed a waiver to that effect. Agent Kendall then spoke with Z.T. for nine hours.
For the first three hours of the interview, Agent Kendall and Z.T. discussed Z.T.'s childhood, family, friends, experiences racing BMX bicycles, and sexual history. When asked if he knew why he was being interviewed, Z.T. stated that he did not know. Almost three hours into the interview, Agent Kendall told Z.T. that F.G. was his accuser and what F.G. had accused him of, and Z.T. denied ever touching F.G. inappropriately. Agent Kendall rejected his denials with statements such as, “This isn't going to go away,” “There has to be more than that,” and “These allegations are very specific, and kids don't just make this stuff up.” Agent Kendall then began invoking Z.T.'s military career, stating: We don't want this to ... we don't want it to affect your military career or affect your life at all ... help us understand what's going on ... why she would feel this way.
.... The quicker we find out the truth, you know, the faster we'll be able to take care of this and get it wrapped up so that way it's not affecting your career.... Okay, because I don't want this to affect your career.... I don't want this to be hanging over you for the rest of your life.... You know, mistakes happen ... and people do things, and they regret it later. They're like, crap, I shouldn't have done that ... the kid, you know, steals a candy bar ... and the guy that accidentally kisses a girl and maybe she didn't want to be kissed.
After a long pause, Z.T. admitted to inappropriate sexual contact with F.G.
At trial in August 2016, Z.T.'s defense counsel successfully moved to suppress his confessions. In suppressing Z.T.'s confessions, the trial court concluded that Agent Kendall had engaged in coercive conduct that played a significant role in inducing Z.T.'s confessions, particularly Agent Kendall's promises of leniency. However, the trial court also held that Z.T. (1) was not in custody at the time of his confessions; (2) knowingly and intelligently waived his Miranda rights; (3) initiated further communication with Agent Kendall after he had invoked his right to counsel; and (4) made a second knowing and intelligent waiver of his Miranda rights.
In evaluating the coerciveness of the police's conduct, we examine “both the defendant's ability to resist coercive pressures and the nature of the police conduct…. Specifically, we consider the following non-exhaustive list of factors:
- whether the defendant was in custody;
- whether the defendant was free to leave;
- whether the defendant was aware of the situation;
- whether the police read Miranda rights to the defendant;
- whether the defendant understood and waived Miranda rights;
- whether the defendant had an opportunity to con fer with counsel or anyone else prior to or during the interrogation;
- whether the statement was made during the interrogation or volunteered later;
- whether the police threatened [the] defendant or promised anything directly or impliedly;
- the method [or style] of the interrogation;
- the defendant's mental and physical condition just prior to the interrogation;
- the length of the interrogation;
- the location of the interrogation; and
- the physical conditions of the location where the interrogation occurred.
Here, the first six factors favor a finding of voluntariness: (1) Z.T. was not in custody; (2) Z.T. was free to leave the interview and have his commanding officer pick him up; (3) Z.T. was told he was there because of sexual assault allegations; (4) Z.T. was told of his Miranda rights; (5) Z.T. knowingly and intelligently waived his Miranda rights; and (6) Z.T. had the opportunity to obtain and confer with counsel but declined to do so. As to the seventh factor, Z.T. confessed during the interrogation, but that by itself is not necessarily indicative of coercion. On the eighth factor, Agent Kendall made vague references to his hopes that this incident would not affect Z.T.'s career, but Agent Kendall never made any overt promises to help Z.T. or any promises that by confessing, Z.T. would be allowed to complete basic training and remain in the Army. As to the ninth factor, the interview was conversational and friendly. Further, Z.T.'s statements thanking Agent Kendall for the way in which he conducted the interview support the conclusion that Agent Kendall did not use coercive methods.
The final four factors support finding a coercive environment, because the interview lasted nine hours on an Army base during basic training. But there is no indication in the record or in the recording of the interview that these factors somehow contributed to coercing Z.T. to confess. Rather, the conversational tone and honest conversation, coupled with Z.T.'s discussion of his religious upbringing and statements of guilt, suggest that Z.T. made these statements of his own free will. Z.T. even thanked Agent Kendall at the end of his interview for helping him tell the truth, saying, “[T]hank you for being understanding.” Therefore, we hold that Agent Kendall did not engage in coercive behavior, and Z.T. gave his confessions voluntarily.
We reverse the trial court's suppression order and remand for proceedings consistent with this opinion.
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The value of video recording the interrogation
In State v. Knight (June 2017) the Supreme Court of North Carolina upheld the lower court’s decision to admit the defendant’s incrimination statements. The video of the defendant’s interrogation played a crucial role in the court’s assessment.
From the courts decision:
As Judge Hill noted in her ruling on the admissibility of defendant's custodial statements, the video of defendant's interrogation—which, again, lasted under forty minutes—shows that defendant was willing to speak with Detective Wenhart. After being read his rights, defendant indicated that he wanted to tell his side of the story when he said “I'm not gonna lie to you, man” and “I'm gonna be frank with you.” The video also shows that defendant talked at length during the interrogation, often interrupting Detective Wenhart, and that defendant responded without hesitation to Detective Wenhart's questions about where he had been and what he had been doing that evening. What's more, the video shows that defendant emphatically denied any wrongdoing; provided his account of the evening's events in detail, including the fact that he had spent some time at the victim's home; and seemed to be trying to talk his way out of custody. This last point is worth emphasizing because it appears that, when faced with a choice between invoking his rights or trying to convince the police that he was innocent, defendant chose to do the latter.
In addition, … there is no evidence here that defendant's statements were involuntary. The video of the interrogation shows that defendant was not threatened in any way and that Detective Wenhart did not make any promises, false or otherwise, to get defendant to talk. Before reading defendant his rights, Detective Wenhart simply told him that “[t]his is your opportunity, should you so desire, ... to tell your side of the story so that we can get to the bottom of what happened.” The interrogation was conducted in what appears to be a standard interview room, and Detective Wenhart's tone throughout the interrogation was calm and conversational. And the length of Defendant's interrogation—which, as we have already noted, was less than forty minutes….. Here, the only factor that one could even arguably claim was coercive was the fact that defendant's arm was handcuffed to a bar on the wall in the interrogation room. But his chair had an armrest; his arm still had an ample range of motion; and he did not appear to be in any discomfort during the interrogation. Thus, defendant voluntarily waived his Miranda rights.
Similarly, in this case, Detective Wenhart read all of defendant's Miranda rights aloud, including his right to stop answering questions at any time during the interrogation. The video of the interrogation shows that Detective Wenhart spoke clearly when he read defendant his rights, and that defendant appeared to be listening and paying attention. It is clear from the video as a whole, moreover, that defendant speaks English fluently. And defendant was certainly mature and experienced enough to understand his rights. He repeatedly told Detective Wenhart that he was “38 years old,” and, as the trial court found, he had prior experience with the criminal justice system and recognized that his rights were being read to him, as evidenced by his statement that, “[i]f you're reading me my rights, I'm under arrest.” In addition, as the trial court also found, defendant gave no indication that he had any cognitive problems. Nor was there anything else that would have impaired his understanding of his rights. Although defendant admitted during the interrogation that he had “been drinking” and “smoking a little pot,” and claimed at one point that he was intoxicated, the video of his interrogation shows that his answers to Detective Wenhart's questions were coherent and responsive throughout.
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Does a subject have to be advised of his Miranda rights when questioned at a Fish, Wildlife and Park’s game check station? No
In State v. Maile (June 2017) the Supreme Court of Montana
On November 17, 2013, Maile and Paul Olson (Olson) stopped at a FWP game check station just outside of Columbus, Montana, with a mule deer harvested by Maile in the bed of the pickup truck. FWP game wardens inspected the deer at the check station and contacted Maile after observing that the license attached to the deer had been issued to a female hunter. The wardens asked Maile about the deer and he began to answer questions and converse with the wardens. He eventually made numerous admissions over the course of the questioning.
During the course of the wardens' investigation, Maile admitted that he shot the mule deer and placed his daughter's tag on the animal. He also told the wardens that he had illegally shot two additional deer using his fiancé's tags in Yellowstone County, Montana. He informed the wardens that one deer was currently being processed at a commercial butcher in Billings, Montana. The wardens subsequently went to Maile's home and he consented to a search of his freezer. The wardens located and confiscated the deer meat that they determined had been illegally harvested.
Maile was subsequently found guilty of License, Permit or Tag Offense; Unlawful Possession, Transfer, or Transport of Game Animal; and Hunting or Killing a Game Animal Over the Legal Limit.
Maile appealed to the Thirteenth Judicial District Court, contending that he was subjected to a custodial interrogation without first being given Miranda warnings, and that the admissions he made were not given voluntarily and thus should be suppressed. The District Court affirmed the Justice Court on the same grounds given by the lower court. Maile filed a timely appeal with this Court.
We first note that a FWP check station, where hunters are required to “stop and report,” is closely akin to a traffic stop which is, in turn, “more analogous to a so-called Terry stop, than to a formal arrest…. Like the roadside questioning of a motorist detained pursuant to a traffic stop, the roadside questioning of a hunter at a game check station detains a vehicle and curtails a driver and passenger's freedom of action because it is unlikely that a hunter would feel free to leave a game check station without the permission of a game warden. However, as explained in Berkemer, this does not end the inquiry as to whether a custodial interrogation has occurred; rather, we must determine whether the wardens' conduct before eliciting the incriminating statement is comparable to the restraints of a formal arrest. In this vein, we have held that “[r]outine, public, and temporary investigatory stops, to confirm or dispel suspicions, are not generally custodial interrogations.”
Here, the game wardens did not place Maile under arrest or in handcuffs. Accordingly, no formal arrest occurred prior to questioning. We also conclude that the circumstances surrounding the wardens' questioning cannot be fairly characterized as the functional equivalent of a formal arrest when viewed from the perspective of a reasonable person in Maile's situation. While the game wardens did ask Maile to step away from Olson's truck for questioning, they did not conduct a pat down frisk of Maile, nor did they require Maile to remove the knife or firearm on his person, even when Maile volunteered to do so. Also,….. the questioning of Maile occurred in a public setting, at a highway rest stop, where hunters, motorists, and a camera crew were present to witness the interaction. The questioning also occurred in the presence of, at most, two other wardens at any one time in order to determine his identity and to obtain information confirming or dispelling the wardens' suspicion that he had illegally harvested the deer in the back of Olson's pickup and, as the investigation developed, the deer killed in Yellowstone County. Finally, during the investigation, Maile was left standing alone while the wardens conversed, followed leads, and wrote up citations.
Finally, while we concede that the length of the warden's investigation and amount of questions the wardens posed to Maile exceeds that of a normal roadside investigatory stop, we cannot say that Maile's detention ripened into a custodial interrogation because the record demonstrates that the wardens kept the scope of inquiry reasonably related to the purpose for which the investigation was initiated. Indeed, it was Maile's attempts to obfuscate and delay the investigation as well as his failure to answer the wardens' questions directly and truthfully that continued to confirm the wardens' suspicions and thus extend the length of the investigation. Furthermore, as shown in the “Wardens” video, Maile himself extended his roadside detention by continuing to volunteer additional information and, towards the end of his detention, even asked permission to reinitiate conversation with one of the wardens.
We conclude that Maile's roadside detainment at the FWP game check station remained public, routine, and temporary in nature, never exceeding the scope of a wildlife crime investigation. As such, Maile was not taken into custody for purposes of Miranda and the statements Maile made to the game wardens were admissible against him.
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Court emphasizes the need to exercise “special caution” when assessing the voluntariness of juvenile confessions
In Dassey v. Dittman (June 2017) the US Court of Appeals, Seventh Circuit found that “the state court's determination [as to the admissibility of the defendant’s confession] was an unreasonable application of Supreme Court precedent.
From the court’s opinion: The trial court found that Dassey had a “low average to borderline” IQ but was in mostly regular-track high school classes; was interviewed while seated on an upholstered couch, never was physically restrained and was offered food, beverages and restroom breaks; was properly Mirandized; and did not appear to be agitated or intimidated at any point in the questioning. The court also found that the investigators used normal speaking tones, with no hectoring, threats or promises of leniency; prodded him to be honest as a reminder of his moral duty to tell the truth; and told him they were “in [his] corner” and would “go to bat” for him to try to achieve a rapport with Dassey and to convince him that being truthful would be in his best interest. The court concluded that Dassey's confession was voluntary and admissible.
The court's findings are not clearly erroneous. Based on those findings, we also conclude that Dassey has not shown coercion. As long as investigators' statements merely encourage honesty and do not promise leniency, telling a defendant that cooperating would be to his or her benefit is not coercive conduct…. Nor is professing to know facts they actually did not have…. The truth of the confession remained for the jury to determine.
Although the state appellate court listed Dassey's characteristics and some of the circumstances of his interrogation, as we will describe in detail below, it did not do the one thing that the Supreme Court requires which is to use “special caution” when assessing the voluntariness of juvenile confessions….. Paragraph 6 of the appellate court decision lists Dassey's age and intellectual limitations, but then, in paragraph 7, the only paragraph that analyzes whether Dassey's confession was voluntary or coerced, it merely applies the same analysis that would apply to an adult with full intellectual capabilities. Specifically, the state appellate court concluded that tactics such as encouraging honesty and the use of deceptive practices that are not considered coercive when used with adults must not have been coercive when used on the intellectually challenged, 16-year-old Dassey. A state court's evaluation need not be lengthy or detailed, but it must at the very least meet the bare minimum requirements of Supreme Court precedent. The admonition to assess juvenile confession with special caution has no meaning if a state appellate court can merely mention a juvenile's age and then evaluate the voluntariness of his confession in reference to the standard for adults of ordinary intelligence. And if a court can merely state the generic Supreme Court rule without any analysis, then no federal court could ever find that “a decision ... involved an unreasonable application of clearly established Federal law” pursuant to 28 U.S.C. § 2254(d)(1)
In juveniles, the evaluation of the totality of the circumstances “includes evaluation of the juvenile's age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights.”
At no time did the state appellate court evaluate any of these factors, other than to merely list some of them. It did not provide any analysis of how Dassey's personal characteristics played a role in the interrogation. It did not consider Dassey's suggestibility, did not discuss the fact that he was unrepresented and without a parent's assistance, and it did not consider whether Dassey's low IQ and learning disabilities may have affected how he interpreted statements made by interrogators. The court never evaluated Dassey's capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights. In short, the state appellate court did not identify the correct test at all and did not apply it correctly.
Yet even given the constraints of the AEDPA, we must conclude that the state court's determination was an unreasonable application of Supreme Court precedent. Although it identified the general rule that a court must consider the totality of the circumstances, it failed to apply the “special caution” required in juvenile confessions and failed to evaluate the totality factors for juveniles as required. Furthermore, the state appellate court applied the generic totality of the circumstances test to the facts in a way that was objectively unreasonable. ….. The trial court's determination of the facts was also unreasonable as it ignored the clear and convincing weight of the evidence….. Although the state appellate court noted that it was obligated to consider the totality of the circumstances, it did not do so. As we noted, in juveniles, the evaluation of the totality of the circumstances “includes evaluation of the juvenile's age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights.” … The state appellate court listed Dassey's age, education and IQ, but it never, at any point, evaluated those factors to determine whether they affected the voluntariness of Dassey's confession. Likewise the appellate court analyzed some of the investigators' interrogation techniques, but it never evaluated or assessed how those techniques affected the voluntariness of an intellectually challenged juvenile's confession. Instead, the state appellate court merely stated that, in cases involving adults of ordinary intelligence, encouraging honesty and using deceptive practices does not make a confession involuntary.
The state court unreasonably applied the rule requiring it to consider the totality of the circumstances to the facts of the case, and those were the very same facts that the state court determined unreasonably.
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