Legal Updates: Winter 2011

Learning disability does not preclude a knowing waiver of the Miranda rights

In the case State v. Moses, (December 2010) the Court of Appeals of South Carolina upheld the trial court's decision not to suppress the defendant's confession. Moses had argued that under the totality of the circumstances, the statement, taken from a learning-disabled student, unaccompanied by his parents, was improperly admitted into evidence.
In their opinion the Court of Appeals found that "Here, Smith testified during the hearing that only he and Moses were present during his interview, although he acknowledged that several officers walked in and out of the room. The record does not indicate Moses was threatened by Smith. Rather, Smith, aware that Moses was seventeen years old and enrolled in special education classes, took the time to write Moses' statement himself after reading each line of the "Waiver of Rights" form to Moses, who then signed the form. Additionally, Moses testified on two separate occasions that he understood his Miranda rights. He further testified that Smith did not tell him what to say during his statement. The record does not indicate that Moses was detained for an extended period of time. Finally, although Moses could only read and write at a third grade level, he was able to earn an occupational diploma. Although the trial court failed to specifically mention his mother's alleged request to be present during questioning, we find that factor standing alone is not dispositive. Ultimately, upon review of the totality of the circumstances in this case, the record supports the trial court's conclusion that Moses' statement was freely, knowingly, and voluntarily made, regardless of his age, learning disability, and separation from his mother. Thus, we find no abuse of discretion by the trial court.

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Court does not allow the testimony of Dr. Richard Leo; the value of videotaping

In the case People v. Polk (December 2010) the Appellate Court of Illinois, First District,
rejected the defendant's claim that the trial court erred by denying his motion to suppress his statement where defendant did not understand his right to remain silent, defendant invoked his right to counsel, and the totality of the circumstances showed that defendant's statement was the result of police coercion; and secondly, the trial court abused its discretion by precluding defendant from presenting expert testimony regarding false confessions.
In reaching their decision the Appellate Court relied heavily of the videotaped interview of Polk, stating that, "In considering the first factor, defendant argues that his statement was not provided voluntarily where he was 17 years of age, read at a second-grade level, and had an IQ of 70, which placed him in the extremely low or borderline range of intellectual functioning. However, a review of the videotaped statement shows that defendant spoke fluently with the officers in a conversational manner, engaged the officers in conversation, and provided details about the shooting, including his motive. There were no outward indications that defendant had a disability and there was no evidence that defendant's intellectual limitations interfered with his ability to communicate with police officers. Thus, we find this factor does not support the conclusion that defendant's confession was involuntary."

Furthermore, in considering the court's rejection of Dr. Leo as the expert witness, the Appellate Court stated in their opinion that, "Here, the circuit court held that Dr. Leo's proffered testimony regarding his assessment of interrogation techniques and the likelihood of a false confession in this case was not beyond the common knowledge of lay persons and would not aid the jury in reaching its conclusion. The circuit court permitted defendant to comment upon the evidence during opening statements, trial and closing arguments, and the jury was able to view the videotape of the police interrogation. The jury also heard testimony from the police officer who questioned defendant and testimony about defendant's educational background and intellectual level. The circuit court determined that the jury could decide the weight to give defendant's statement and whether or not defendant's confession was false. Defendant had not shown an abuse of discretion in excluding the expert testimony.

They also stated that, "Similarly, Dr. Leo's testimony that defendant's low IQ and the police interrogation techniques used in this case could have resulted in a false confession was not beyond the understanding of ordinary citizens, nor a concept difficult to understand. In addition, the circuit court did not prevent defendant from challenging the credibility and weight of his confession throughout defendant's trial."

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Lying about evidence (number of witnesses that identified suspect) did not render confession inadmissible

In the case of Arrue v. Hedgpeth (October 2010) the US District Court, C.D. California upheld the lower court's decision to admit the defendant's incriminating statements. In this case the defendant claimed that the "police used coercive tactics that overcame his will, leading to his confession. Petitioner argues that the police lied to him when they told him that he had been identified as one of the perpetrators and when they offered him leniency by telling him that if he confessed, he would avoid a special circumstances murder conviction and would help his family. Petitioner says the officers also threatened him by telling him he was "fucked" because he faced a special circumstances conviction, which meant that he would be in prison for life if he did not confess. The California Court of Appeal denied Petitioner's claim, finding that the totality of the circumstances showed that the confession was voluntary."

The District Court further stated that, "...the state court found that, although police did use language such as "fucked" to describe Petitioner's situation, they did so only in describing the facts in colorful language, and that police made no threats or promises which might have overborne Petitioner's will.....The only circumstance the court found could have suggested an involuntary confession was the fact that police lied to Petitioner about being identified as the shooter by his three confederates. But, the record shows that police did not entirely invent this statement; at trial, both attorneys agreed that one person had identified Petitioner as the shooter, but that it was untrue that three people had identified him. In any event, the state court found that police deception about whether Petitioner had been identified as the shooter did not render the confession involuntary.

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Court rejects confession obtained after a deliberate two-step interrogation approach (2 cases)

In the case of US v. Capers (December 2010) the US Court of Appeals, Second District, had to determine "whether the officers employed a "deliberate, two-step strategy, predicated upon violating Miranda during an extended interview," Seibert, 542 U.S. at 621, 124 S.Ct. 2601, and if so, whether "specific, curative steps," were taken to obviate the violation that occurred." The defendant had been arrested, confessed and then advised of his rights, after which he repeated his incriminating statements.

In their opinion the Court of Appeals ruled that "There is no exception to Miranda that allows a delay in giving Miranda warnings in order to preserve evanescent evidence. Neither is there an exception to Miranda that permits delaying the warnings in order to ascertain whether a suspected co-conspirator may be entitled to release. Indeed, we agree with the Williams Court in its observation that

[o]nce a law enforcement officer has detained a suspect and subjects him to interrogation ... there is rarely, if ever, a legitimate reason to delay giving a Miranda warning until after the suspect has confessed. Instead, the most plausible reason ... is an illegitimate one, which is the interrogator's desire to weaken the warning's effectiveness.

The only legitimate reason to delay intentionally a Miranda warning until after a custodial interrogation has begun is to protect the safety of the arresting officers or the public-neither of which was an issue here. See, e.g., United States v. Newton, 369 F.3d 659, 677 (2d Cir.2004) (recognizing this "narrow exception" to the Miranda rule)."

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Another case in which the courts found a confession inadmissible as a result of this two step process is Dixon v. Houk (December 2010) US Court of Appeals, Sixth District.

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Court rejects the testimony of Dr. Scott Bresler on false confession issues

In the case State v. Craven (November 2010) the Court of Appeals of Nebraska upheld the lower court's decision to reject the testimony of Dr. Scott Bresler on false confession issues. As the Court of Appeals stated in their opinion, "Upon our review of the testimony of Bresler, which Craven wished to present to the jury, it is clear that the theory regarding false confessions was still being tested and subjected to peer review and publication, had no known rate of error, and had no specific standards to control its operation. Furthermore, the ultimate conclusion to be given to the jury by Bresler was not that of an "expert opinion" but merely a tool to assist the jury in its determination of the facts...... The jury had an opportunity to view the interview twice during the trial and to draw its own conclusions regarding the interview. Therefore, we find that the district court did not abuse its discretion by excluding the testimony of Bresler."
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Confession inadmissible when police ignore request for an attorney

In the case Carr v. State (September 2010) the Indiana Supreme Court ruled that the lower court was in error when they admitted the defendant's incriminating statements because he had effectively made a request for a lawyer that was not honored by the interrogator.

Here is the relevant information and dialogue to be considered:

"Following his arrest on the evening of the crime, the defendant was questioned at the police station by Detective Daniel Pryor of the Fulton County Sheriff's Department. The following excerpts pertinent to the claimed violation of his right to counsel are taken from the interview:

[After a quick exchange of pleasantries between the defendant and Detective Pryor, the defendant stated]: Mr. Pryor I want to be cooperative ... but at the same point I'm in a situation where I feel like ... I really need an attorney to ... talk with, and for me. [Emphasis added.]

[Detective]: Well, and you're absolutely entitled to that sir.... I'm not going to violate your rights (inaudible) that way. The only reason I was in here, we know what happened, that's not why I was in here, I just wanted to know why. It might not be as bad as it appears, but only you know those circumstances, but you're entitled to an attorney and I'm not going to.

[Defendant]: Yeah, OK. Well I mean ask me, ask me what you want to ask me. [Emphasis added.]

[Detective]: Well I mean that's up to you.... I have to read you your rights because you're in custody (inaudible) ... I want to do things by the book.... Like I said, things look bad but they're not always as they look.

[Defendant]: Well, believe me it's bad, you know what I mean? It's bad.

[Detective]: Well, ... I won't lie to you Jim, it doesn't look good. But like I say, it may look worse than what it actually is. That's why I'm here in fairness.

* * *

[Shortly thereafter, the detective advised the defendant of his rights to remain silent and to counsel before making any statement or answering any questions, including his right to appointed counsel, and the defendant acknowledged understanding them.]

[Detective]: Like I said Jim things looks bad I won't lie to you based on what it looks like it looks like murder. Ok? It may not be that. There's different degrees of things. Ok? Like I say only person that knows the circumstances as to why things happened would be yourself.

* * *

[Detective]: ... I'm straight with you, I'm straight with anybody I talk to. What good does bs-ing people do, nothing. This isn't a game.

[Defendant]: And I know it's not a game I mean I understand what's happened and that's why, that's why I feel as though, you now, I need to have an attorney to deal with because this is a serious thing, you know, it's a very serious thing, I know it's a very serious thing. [Emphasis added.]

[Detective]: Yes sir I understand. And I won't question you.-I'm just throwing this out here and you've asked for an attorney and you're entitled to it.

[The defendant then asks for a cigarette, and the detective provides one.]

[Detective]: Those aren't meant to get you to talk to me.... I'm a smoker. My point, my point is this-there's a difference between murder, something that murder kind of embodies, someone planned something and then there's lesser degrees of that so.

The defendant's right to counsel was first violated at the beginning of the interview when the defendant stated, "I'm in a situation where I feel like ... I really need an attorney to ... talk with, and for me." This was an unequivocal and unambiguous invocation of his right to counsel. The detective understood this and acknowledged, "you're absolutely entitled to that sir.... I'm not going to violate your rights (inaudible) that way." But the detective did not cease further interrogation but nevertheless continued by inviting the defendant to talk more, adding, "The only reason I was in here, we know what happened, that's not why I was in here, I just wanted to know why. It might not be as bad as it appears, but only you know those circumstances, but you're entitled to an attorney." This precipitated the defendant to respond, "Yeah, OK. Well I mean ask me, ask me what you want to ask me." This statement does not constitute a valid waiver of the defendant's right to counsel for two reasons. First, the detective's failure to immediately cease all questioning until the defendant's attorney was present was in violation of Edwards, 451 U.S. at 482, 101 S.Ct. at 1883, 68 L.Ed.2d at 384. Once the defendant stated, "I really need an attorney," Appellant's App'x at 389, the defendant's right to counsel should have been "scrupulously honored." Miranda, 384 U.S. at 479, 86 S.Ct. at 1630, 16 L.Ed.2d at 726. Instead, the detective's ongoing conversation initiated further custodial interrogation, and the defendant's subsequent disclosures were not a product of his own initiation of communication. Pursuant to Shatzer, Roberson, and Edwards, the defendant did not voluntarily waive his right to counsel. Second, when this exchange occurred, the detective had not yet informed the defendant of his Miranda rights. "No effective waiver of the right to counsel during interrogation can be recognized unless specifically made after the warnings we here delineate have been given." Miranda, 384 U.S. at 470, 86 S.Ct. at 1626, 16 L.Ed.2d at 721.

The defendant's next invocation of his right to counsel was similarly disregarded. When he declared, "I need to have an attorney to deal with because this is a serious thing," the detective immediately acknowledged that the defendant had "asked for an attorney and you're entitled to it," id., but nevertheless continued the interview by telling the defendant while a planned killing may be a murder, there are "lesser degrees." This statement, in the nature of an open-ended invitation encouraging further communication from the defendant notwithstanding his second unambiguous and unequivocal invocation of his right to counsel, succeeded in persuading the defendant to admit that "there was no plan," and he was angry at the victim, and that "the weapon that was used is my gun."

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Court rejects confession obtained after suspect was promised by the interrogator that he would testify for the suspect

In the case of State v. Bordeaux (November 2010) the North Carolina Court of Appeals upheld the lower court's opinion to rule the defendant's confession inadmissible because it was the result of a promise of leniency.
"The trial court found that during the interview, officers indicated to Defendant that they would testify on his behalf and explain that he only made a mistake. Thereafter, Detective Odham explained that "the Judge will look at that and say 'Well damn, you know, we don't want to ruin this kid's life,' or whatever the Judge will say. I don't know what the Judge will say ...." While Detective Odham attempted to retreat from his initial statement by light of the proposed testimony, other statements made throughout the course of the interview helped to arouse in Defendant the hope of a more lenient sentence. Several statements made by Detective Odham suggested that Defendant might still have the opportunity to attend community college and that his future was dependant upon cooperating during the interview. The trial court's findings indicate that the detectives promised that they would speak on Defendant's behalf and a benefit would result. When viewed in their totality, the Detectives' statements during the course of the interview aroused in Defendant "an 'emotion of hope' " of lighter, more lenient sentence."

The Court of Appeals also pointed out that "In this case, the detectives' suggestion that Defendant was a suspect in a murder investigation accompanied by promises of relief made Defendant's statement involuntary. The officers were fully aware that Defendant did not participate in the murder. The intended effect of the detectives' query about the murder was to cause Defendant to be "worried and off-balance." When coupled with the promises of relief, the deception used by detectives rendered Defendant's confession inadmissible at trial."

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Is the statement "Hey man. I don't want to give nothing about nothing." an unambiguous request to remain silent?

In the case of Paredes v. State (November 2010) the Court of Appeals of Texas, Houston, upheld the lower court's opinion that the defendants request to remain silent was ambiguous and that the subsequent confession was admissible. Here is the relevant commentary from the decision:

"Appellant contends he attempted to cut off questioning at the beginning of the interview, thereby making unlawful the entirety of his custodial interrogation..... In his brief, appellant argues that he invoked his right to remain silent by telling Sergeant Belk, the interrogating officer, "Hey man. I don't want to give nothing about nothing." Appellant misstates what was actually communicated. Upon our review of the recording, the interrogation started more precisely as follows:

Sgt. Belk: Well, let's, uh, start from the beginning and we'll talk about what happened and see who all these people are.

Appellant: Hey man .... (sigh) I don't want to give nothing involved in that [expletive]. You know, I didn't do nothing.

Sergeant Belk then advised appellant that (l)he had the right to remain silent; (2) anything he said could be used as evidence against him at trial; (3) he had a right to counsel during questioning; (4) the State would appoint counsel if he were unable to employ one himself; and (5) he could terminate the interview at any time. Sergeant Belk asked appellant five times if he understood his rights, once after each warning. In each instance, appellant responded in the affirmative.
An interrogating officer has no obligation to end his questioning unless the suspect unambiguously invokes his Fifth Amendment rights. Moreover, the officer is not required to clarify any ambiguous remarks."

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The value of recording interrogations

In the case US v. Hristov (November 2010) the US District Court, D. Massachusetts, upheld the admissibility of the defendant's confession. In making their decision the lower court put great reliance as to the credibility of the defendant's confession based on the behavior he displayed during the interrogation. As the District Court point out in their opinion, "Hristov argues that his waiver was not knowing and intelligent because his poor English prevented him from fully understanding the rights that he was giving up. After reviewing the videotape, I find that the waiver was knowing and valid. Hristov shows no sign of having below-average intelligence, having played an integral part in an ATM skimming scheme that involved the installation and operation of sophisticated technology. Furthermore, Hristov appears to have a decent, albeit not perfect, grasp of English. The videotape indicates that Hristov was able to understand and answer most of Detective Cleary's questions without difficulty. He demonstrated a fairly substantial vocabulary....."

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When does questioning become custodial?

In the case Ross v. State (September 2010) the Florida Supreme Court overturned a lower court's decision based on their faulty application of the law as to when questioning became custodial requiring an advisement of rights.
"In this case, the trial court concluded that Ross was not in custody on January 9 prior to the reading of the Miranda warnings, that Ross voluntarily waived his rights, and that the statements were made voluntarily.
Ultimately, as we have stated, the factors enunciated provide the basis for the twofold inquiry: (1) the "circumstances surrounding the interrogation"; and (2) "given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave." In considering these factors in conjunction with each other, we conclude that the January 9 interview became a custodial interrogation. Although Ross initially went to the sheriff's office voluntarily, this is the only factor that weighs in favor of finding that the January 9 questioning was not an in-custody interrogation. The January 9 interview was held in a small room with multiple officers, and Ross was placed in a corner with Detective Waldron sitting in front of him. The manner and purpose of the interview was not merely to interview a witness and obtain his story. Detective Waldron was attempting to obtain incriminating statements or a change in Ross's story by confronting him with significant evidence that allegedly placed him at the crime scene and insisting that the police already knew he committed the crime.

Once the police informed Ross that they had his bloody pants that matched the crime scene, a reasonable person would not have felt at liberty to terminate the interrogation and leave. At this point the officer should have advised Ross as to his Miranda rights."

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Length of interrogation is one factor to consider in the totality of circumstances

In this case, Moore v. Curtin (November 2010) the defendant claimed that his confession was not voluntarily made because he was subjected to three days of intensive interrogations which drove him to the point of emotional and physical exhaustion, and that he suffers from mental illness, which made him vulnerable to psychological coercion. The US District Court, E.D. Michigan, Southern Division, disagreed, stating:

"The state courts' findings and conclusions are supported by the record. Petitioner was thirty-six years old at the time of his interrogation, and he had earned the equivalent of a high school diploma. He had three prior convictions, and he was advised of his constitutional rights before each interview. He waived his rights according to the undisputed testimony of the officers, and he was not physically punished, nor deprived of food or sleep.

One factor that suggests Petitioner's confession may have been coerced is the fact that he was interrogated for several hours and was confined for a few days before he confessed. Taken by itself, this factor could support Petitioner's allegation of coercion, but courts
apply a totality-of-circumstances test in this area, not a singular-fact test, and that makes all the difference. "[I]nterrogations of great [ ] duration" have been deemed improper only when "they were accompanied ... by other facts indicating coercion." See Berghuis v. Thompkins, --- U.S. ----, 130 S.Ct. 2250, 2266, 176 L.Ed.2d 1098 (2010). And it is not even clear that a 24-hour interrogation amounts to one of "great[ ] duration."

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Court rejects forensic psychologist Bruce Frumkin's testimony as to the defendant's ability to make a knowing and intelligent waiver of his rights

In the case State v. Keys (December 2010) the Court of Appeals of Iowa upheld the lower court's decision to reject the testimony of forensic psychologist Bruce Frumkin on the intellectual capacity of the defendant to understand and waive his rights.

"Keys asserts he did not freely decide to forgo his Miranda rights....He relies on the testimony of forensic psychologist Bruce Frumkin, who opined it was "unlikely [Keys] would have been able to fully make a knowing and intelligent waiver of his Miranda rights." Frumkin based his opinion on five factors: (1) Keys's educational level, (2) the results of an IQ test, (3) Keys's overall psychological functioning, (4) the results of comprehension tests, and (5) Keys's history of drug use.

With respect to the first two factors, it is undisputed that Keys was not an academic stand-out in high school, dropped out in the eleventh grade, and had IQ scores at the low end of the testing range. These facts, however, did not automatically render Keys incapable of waiving his Miranda rights. See State v. Fetters, 202 N.W.2d 84, 89 (Iowa 1972). Indeed, while Frumkin opined "that people of lower intelligence don't understand Miranda rights as well as people of higher intelligence," he conceded there is no cutoff IQ score that renders someone incapable of waiving his or her Miranda rights.

This brings us to the third factor, Keys's overall psychological functioning. This factor also does not support a finding that Keys was incapable of waiving his Miranda rights. It is true that Keys had a history of anxiety, preoccupation with intrusive thoughts, and a propensity for "cognitive slippage," which Dr. Frumkin defined as "some temporary inefficiency in processing information." However, these deficits were not apparent in the video recordings. To be sure, Keys had trouble coming up with certain descriptive words, but he responded quickly to the officer's questions and comments and his reactions were appropriate for the circumstances.

The fourth factor cited by Dr. Frumkin, the results of tests to measure Keys's current comprehension and appreciation of Miranda rights adds little to the analysis, as Dr. Frumkin admitted Keys did "relatively well" and "currently ha [d] a good understanding of the Miranda rights and currently is able to make an intelligent use of the Miranda rights." While Frumkin suggested the positive test results reflected Keys's efforts to educate himself after the interrogation, this suggestion belies his earlier assertion that Keys lacked the education and IQ to process the Miranda warnings at the time of the custodial interrogations.

The final factor cited by Dr. Frumkin, Keys's drug use, was not evident on the video recordings. Dr. Frumkin acknowledged this and the State's expert confirmed it. Additionally, all the officers who encountered Keys testified they did not believe the defendant was under the influence of drugs.

On our de novo review, we agree with the district court that Keys possessed "sufficient intellectual capacity to understand Miranda warnings and to validly waive those Miranda warnings ."

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The value of an electronic recording of the interrogation when a defendant claims that he confessed because he was "susceptible to psychological coercion"

In the case State v. Madison (December 2010) the Court of Appeals of Minnesota rejected the defendant's claim that his confession should have been inadmissible because he was susceptible to psychological coercion. "We disagree.

The district court found that Madison, who was 21 years old at the time of the interrogation, is a man of average intelligence who has a high-school education and some vocational training. The district court found that Madison validly waived his Miranda rights, understood Sergeant Banham's questions, and knew what the interrogation was about. The district court found that Madison has experience with the criminal-justice system, noting that since 2007, Madison has been convicted of felony possession of a short-barreled shotgun, arrested for misdemeanor domestic assault, and issued a citation for misdemeanor theft. The district court found that Madison was interrogated during the afternoon hours (approximately 3:30 p.m.-5:00 p.m.) by only one officer and that the interrogation did not last for an unreasonable length of time (approximately 90 minutes). At the beginning of the interrogation, Madison was offered water, and he was not deprived in any way of his physical needs. The record supports all of these findings.

The district court's order, which extensively recounts the custodial interrogation and states that the court had "reviewed the complete audio and video recording of [Madison]'s confession," makes it clear that the district court considered all of Madison's statements, including those to which Madison now refers."

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Telling a suspect that he is lying is not coercive

In the case Revis v. State (January 2011) the Court of Criminal Appeals of Alabama upheld the admissibility of the defendant's confession, even though the defendant had claimed that his statements were the result of coercive techniques, including the fact that the police told him he was lying to them during the interrogation.

In addressing this issue the Appeals Court points out several cases that rejected the suggestion that telling a suspect he is lying is a coercive tactic:

"Moreover, any statements that the investigators made indicating that Revis was lying or accusing him of lying did not cross the boundaries of impropriety by becoming threats. See United States v.. Artis, [No. 5:10-cr-15-01, September 16, 2010] ___ F.Supp.2d ___, ___ (D.Vt.2010)("[T]he only evidence that weighs in favor of a finding of involuntariness is the fact that three law enforcement officers questioned Mr. Artis, confronting him with evidence of his guilt and accusing him of lying after telling him that lying to them would be a crime. This evidence supports a conclusion that the law enforcement officers were confrontational, but it does not support a conclusion that they were coercive. See Parsad[v. Greiner], 337 F.3d[175] at 185 [ (2d Cir.2003) ] ('all custodial interrogations inherently involve pressure, and officers routinely confront suspects with incriminating evidence.')." See also State v. Owen, 202 Wis.2d 620, 642, 551 N.W.2d 50, 59 (1996)(the court found that Owen's claim that his statement was involuntary because of improper police tactics such as "good cop/bad cop" and confrontational questioning was without merit and stated, "The adoption of roles by the investigators and [the investigator's] accusation that Owen was lying and that he was responsible for [the victim's] death are not improper police procedures. Further, the fact that the investigator raised his voice and invaded Owen's space by getting close to him does not establish actual coercion."). See also Estrada v. State, 313 S.w.3d 274 (Tex.Crim.App.2010)(statement by Estrada, a youth pastor, to police in which he admitted impregnating and murdering a member of his youth group was not coerced and involuntary despite the use of the following interrogation techniques: accusing him of impregnating and murdering the victim, falsely telling his girlfriend that he had admitted to their allegations and then allowing the girlfriend to meet with him, telling him he was the central figure in the investigation, and accusing him of lying)."

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