Legal Updates: Winter 2012

"Testimony of expert regarding interrogation techniques was irrelevant."

In the case of Hall v. Commonwealth (October 2011) the Kentucky Court of Appeals held that "testimony of expert regarding interrogation techniques was irrelevant." In this case one of the issues was the relevancy of Dr. Richard Ofshe's testimony as to whether or not the interrogating officer used the Reid technique.

In their opinion the Court of Appeals stated that, "Hall argued that the purpose of Dr. Ofshe's testimony was to disprove Detective Collin's testimony that he did not use the Reid technique. However, Hall did not testify at trial and presented no evidence that his statements to the officers were coerced. With this significant fact in mind, we test the relevancy of Dr. Ofshe's testimony."

"Based on Hall's admissions as to the use of Dr. Ofshe's testimony and Hall's failure to attack the reliability of his confession, we conclude that Dr. Ofshe's testimony was not only irrelevant but, if admitted, would have confused the issues presented to the trier of fact. The sole purpose of Dr. Ofshe's testimony was to discredit Officer Collins's testimony concerning the interrogation technique he used. Dr. Ofshe's general testimony regarding police interrogations and the method used by Officer Collins has no relevance to Hall's guilt or innocence because the reliability of Hall's statements was not challenged. We conclude the trial court did not err."

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Promise to keep the suspect's name out of the media will not invalidate the confession

In the case of State v. Alaniz (October 2011) the Court of Appeals of Texas (Corpus Christie) ruled that the trial court abused its discretion when it found that an improper promise induced Alaniz to confess. During the interrogation the investigator stated to the suspect "we were going to do our very best to keep her out of the media."

The Court of Appeals stated that, "... the record supports a finding that Detective Lerma was explaining the policy of the police department to Alaniz, i.e., explaining how the department handled victims of alleged sexual assault... The trial court was unreasonable in isolating Detective Lerma's one statement made while articulating department policy and in concluding that because the one statement focused on Alaniz's concerns about the victim, it was a promise on the part of the detective that rendered Alaniz's confession invalid.

Furthermore, even assuming that Detective Lerma's statement was a promise, we agree with the State that there is no evidence that the promise induced Alaniz to confess or depended upon his confession. The court of criminal appeals has held that an " 'if-then' relationship [is] required to establish [such] a promise." Chambers, 866 S.W.2d at 20-21 (quoting Freeman, 723 S.W.2d at 731). "[T]here must be some indication that the police "induce[d] appellant to confess by implicitly or explicitly suggesting a 'deal, bargain, agreement, exchange, or contingency.' " Id. (quoting Freeman, 723 S.W.2d at 731). In other words, it is a promise made in exchange for a confession that is prohibited, not some free-standing promise untied to the decision to confess. See Renfro, 958 S.W.2d at 884 (setting out that no indication that the promise of drug treatment was given in exchange for a confession).

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Court finds the proposed testimony on false confessions does not meet the Frye test

In the case of Bell v. Ercole (October 2011) the U.S. District Court, E.D. New York, found that the trial judge exercised discretion to exclude the expert testimony for the following reasons:

Defendant states that the expert in this case is prepared to testify about various aspects of the general phenomenon of false confessions, leaving the question of whether defendant's confession was accurate or false to the jury (Defense Memorandum p. 7 fn.2). Since abstract principles of social science as applied to a confession will be espoused, without anything to warrant their application to this defendant, the proposed testimony would unduly confuse the jury and confound the issues in the case.

The issue of whether defendant's inculpatory statements were voluntarily made is a question for the jury to determine. The circumstances of the questioning and confession will be presented to the jury which will be able to make this determination.

The District Court further stated that, "Many of the New York cases, particularly those of the Appellate Divisions, do not go into significant detail as to the reasons for exclusion of expert testimony relating to confessions, which is why I relied on a thorough and exhaustive discussion of the Supreme Judicial Court of Massachusetts, which concluded that proposed testimony of one of the experts on whom Bell relied, Professor Saul Kassin, did not meet the requirement for admissibility of expert testimony because of a lack of general acceptance in the scientific community and the lack of a showing that the evidence is reliable or valid through an alternative means."

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Police should not destroy notes of any pre-interview interrogation

In the case State v. Dabas (September 2011) the Superior Court of New Jersey, Appellate Division, ruled that the investigating officers should not have destroyed their notes. In this case the defendant argued that "the trial judge erred in refusing to give the requested adverse-inference charge with respect to Dando's destruction of his notes from the pre-interview interrogation. The trial judge denied the request because he determined that the State was "under no obligation to preserve handwritten reports prepared by officers in the field."

The Superior Court noted that, "By the time of Samander's trial in 2007, the Supreme Court had twice expressed its disapproval of the police practice of routinely destroying notes. State v. Branch, 182 N.J. 338, 367 n. 10 (2005) ("We register our displeasure that police officers engage in the seemingly routine practice of destroying their contemporaneous notes of witness interviews after the preparation of formal reports."); State v. Cook, 179 N.J. 533, 542 n. 3 (2004) ("Apparently, once each officer prepared his report, he destroyed his notes from the interrogation sessions, a practice that is apparently common, but one that we disapprove of."); see also State v. P.S., 202 N.J. 232, 253-54 (2010).

In State v. W.B., 205 N.J. 588, 607 (2011), the Court revisited the issue and stated that it "need not take much time to state, once more, that law enforcement officers may not destroy contemporaneous notes of interviews and observations at the scene of a crime after producing their final reports." The Court went on to hold that Rule 3:13-3, specifically subsections (c)(6), (7), and (8), "encompasses the writings of any police officer under the prosecutor's supervision as the chief law enforcement officer of the county" and that, "because an officer's notes may be of aid to the defense, the time has come to join other states that require the imposition of 'an appropriate sanction' whenever an officer's written notes are not preserved."

"We conclude that there was a realistic potential that Dando's contemporaneous notes could have assisted defense counsel in challenging Dando's testimony and the truthfulness of his recorded statement. Such efforts might well have been effective in persuading the jury to acquit Samander of murder in favor of one of the lesser offenses charged by the jury..... Although there is no basis in the record to warrant suppression of the evidence based upon the type of due process violation discussed in State v. Dreher, 302 N.J.Super. 408, 483 (App.Div.), certif. denied, 152 N.J. 10 (1997), cert. denied, 524 U.S. 943, 118 S.Ct. 2353, 141 L. Ed.2d 723 (1998), we have concluded that the trial judge should have given the requested charge.

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If properly done a polygraph examination does not have a coercive impact on a suspect's confession

In the case State v. Fisher (November 2011) the Supreme Court of South Dakota found that a polygraph examination does not have a coercive impact on a suspect's confession. In this case Fisher argued that Detective Bakke improperly used the polygraph examination as a means to coerce Fisher into confessing. The Supreme Court stated, "However, we have recognized the coercive impact of a polygraph examination may be mitigated or eliminated by advising the defendant of his or her constitutional rights prior to administering the examination. For example, in State v. DuBois, we held that incriminating statements made by the defendant after a polygraph examination were voluntary because the defendant had been advised of his Miranda rights. 286 N.W.2d 801, 805 (S.D.1979). Likewise, in State v. Adkins, we held that statements a defendant made during and after a polygraph examination were voluntarily because the defendant was advised of his Miranda rights and had signed a written consent form prior to taking the test. 225 N.W.2d 598, 573-74 (S.D.1975).

Fisher was read his Miranda rights before the interview began. He also signed a consent form prior to taking the polygraph examination. This consent form advised Fisher of his constitutional rights and informed him that taking the polygraph examination was not mandatory. Detective Walsh also verbally informed Fisher he was not obligated to take the polygraph examination. After reviewing the voluntariness of the confession based on a totality of the circumstances, we hold that the polygraph examination alone did not render Fisher's subsequent confession involuntary.

In the same case, misrepresenting evidence acceptable and the value of video recording

Fisher also contends Detective Bakke used deception to coerce Fisher into confessing. During the interview, Detective Bakke repeatedly told Fisher he spoke with the doctors who treated P.V. and these doctors told Detective Bakke falling or roughhousing could not cause P.V.'s injuries. Detective Bakke also told Fisher the doctors examined P.V.'s eyes and observed retinal detachment, which is a sign that P.V. was shaken. In fact, P.V.'s retinas were intact and Detective Bakke did not personally speak with P.V.'s treating doctors. Instead, Detective Webb spoke to the doctors who treated and examined P.V.

Although we have recognized that "[d]eception or misrepresentation by the officer receiving the statement may [ ] be factors for the trial court to consider," we have emphasized, "the police may use some psychological tactics in interrogating a suspect ." State v. Darby, 1996 S.D. 127, P 31, 556 N.W.2d 311, 320 (citing Jenner, 451 N.W.2d at 719). Psychological tactics such as deception or misrepresentation do not prevent a finding of voluntariness so long as the confession is " 'a product of the suspect's own balancing of competing considerations.' " Id. (quoting State v. Dickey, 459 N.W.2d 445, 447 (S.D.1990)).

We have reviewed the videotaped interview and find that the misrepresentations Detective Bakke made to Fisher did not deprive Fisher of his capacity to balance competing considerations and make " 'an unconstrained, autonomous decision to confess.' " Morato, 2000 S.D. 149, P 12, 619 N.W.2d at 660 (quoting Gesinger, 1997 S.D. 6, P 12, 559 N.W.2d at 550). Fisher earned a GED and was enrolled in college courses at the time of the interview. Fisher also had previous experience with law enforcement. He was informed of his constitutional rights on two separate occasions. Fisher indicated he understood his constitutional rights and elected to continue the interview. He never asked to terminate the interview or speak with an attorney.

Although the misrepresentations of Detective Bakke likely factored into Fisher's decision to confess, we do not think his will was overcome so as to render the confession involuntary. Throughout the interview, Fisher demonstrated a capacity to resist the pressures imposed on him by law enforcement. Fisher was able to offer several alternative explanations for P.V.'s injuries and death. In addition, after Fisher admitted to shaking P.V., Detective Bakke told Fisher there were bruises on P.V.'s face. Detective Bakke asked Fisher if he ever hit or slapped P.V. Fisher denied ever hitting or slapping P.V., indicating that his will was not overborne by Detective Bakke's misrepresentations.

The totality of the circumstances surrounding the interrogation supports the trial court's conclusion that Fisher made an unconstrained and autonomous decision to confess after weighing competing considerations.

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Polygraph examiner's behavior did not render the suspect's confession involuntary

In the case Ortiz v. Uribe (November 2011) the U.S. Court of Appeals, Ninth District, affirmed the decision by the Court of Appeals that:
(1) polygrapher's deceptive interrogation tactics did not render petitioner's confession involuntary;
(2) polygrapher's concealment of fact that she was a law enforcement officer did not render petitioner's confession involuntary;
(3) polygrapher's making of implicit promises of lenient treatment did not render petitioner's confession involuntary; and
(4) polygrapher's appeal to petitioner's moral obligation to his family did not render his confession involuntary.

In part the Court of Appeals stated that, "We agree with the Seventh Circuit that a polygrapher's empathic and parental questioning does not render a confession involuntary. We are persuaded that the undisputed evidence reflected in the record of the state trial court's proceedings demonstrates that Detective Cardwell's advice to Ortiz that he had to tell the truth to pass a polygraph examination, was not coercive. The California Court of Appeal's conclusion that Detective Cardwell's motherly or parental tone in preparing Ortiz for a polygraph examination did not violate Ortiz's Fifth Amendment rights was not contrary to, and did not involve an unreasonable application of, clearly established Supreme Court law, and was not based on an unreasonable determination of the facts in light of the evidence presented."

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13 hours between waiver and incriminating statements
In the case Cooper v. Graham (November 2011) the U.S. District Court, W.D. New York, ruled that, "The state courts were correct in determining that Cooper's waiver of his Miranda rights was not rendered invalid by virtue of the approximately 13 hours which elapsed between the waiver and his making the statements. People v. Cooper, 59 A.D.3d at 1054, 872 N.Y.S.2d 793 (" '[W]here a person in police custody has been issued Miranda warnings and voluntarily and intelligently waives those rights, it is not necessary to repeat the warnings prior to subsequent questioning within a reasonable time thereafter, so long as the custody has remained continuous[.]' ") (quotation and citation omitted). The New York rule is consistent with Supreme Court precedent."

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"Incessant questioning or demands to tell the truth" do not render a confession inadmissible

In the case Bolton v. McEwen (November 2011), the U.S. District Court, N.D. California, upheld the trial court's decision to admit the defendant's incriminating statements. I their opinion the District Court outlined the following:
Bolton maintains that his statement to police should have been excluded as involuntary because the interrogation was lengthy, coercive, and included "incessant" demands to admit he killed Barfield. When an interrogation is recorded, as it was here, the facts surrounding the giving of the statement are undisputed, and we independently review the determination of the trial court on the ultimate issue of voluntariness. People v. Maury (2003) 30 Cal.4th 342,404; see also People v. Jones (1998) 17 Cal.4th 279, 296, 70 Cal.Rptr.2d 793, 949 P.2d 890.)

" '.....Questioning may include exchanges of information, summaries of evidence, outline of theories of events, confrontation with contradictory facts, even debate between police and suspect.... Yet in carrying out their interrogations the police must avoid threats of punishment for the suspect's failure to admit or confess particular facts and must avoid false promises of leniency as a reward for admission or confession...."
Bolton first argues that the officers' "incessant" demands that he admit his involvement and their statements that they "knew" he did it rendered his confession involuntary and unreliable. Bolton's argument appears to be that he was coerced into confessing because the detectives were not being truthful about "knowing" that he killed Michelle. Police deception during interrogation, however, is not necessarily impermissible. ( People v. Jones, supra, 17 Cal.4th at p. 297, 70 Cal.Rptr.2d 793, 949 P.2d 890.) "Police trickery that occurs in the process of a criminal interrogation does not, by itself, render a confession involuntary and violate the state or federal due process clause. [Citation.] Why? Because subterfuge is not necessarily coercive in nature.... And unless the police engage in conduct which coerces a suspect into confessing, no finding of involuntariness can be made. [Citations.]" ( People v. Chutan (1999) 72 Cal.App.4th 1276, 1280, 85 Cal.Rptr.2d 744.)

Next, Bolton maintains that the detectives' "incessant" questioning during the "lengthy" interrogation rendered his confession involuntary. Our review of the videotape of Bolton's interrogation reveals otherwise. The interrogation lasted for only two hours, hardly "lengthy." The detectives, though insistent at times, never threatened Bolton or even raised their voices. Bolton did not appear confused or exceptionally fatigued. Much of the detectives' questioning involved background information and the sequence of events on the evening of the killing. The detectives pointed out inconsistencies between his and J.'s statements, and questioned him about his improbable claim that "some dudes" attacked his wife, yet he failed to try to help her or call police.

As in Holloway, "[w] e conclude the detectives in this case did not cross the line from proper exhortation to tell the truth into impermissible threats of punishment or promises...." ( Holloway, supra, 33 Cal.4th at p. 115, 14 Cal.Rptr.3d 212, 91 P.3d 164.) Bolton has not demonstrated that his statements to the police were involuntary.

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Questioning a suspect four times over a 60-hour period of custody did not render the confession inadmissible

In the case State v. Bean (August 2011) the Court of Appeals of Wisconsin was "unconvinced" with Beans argument that his confession was not voluntary because "[h]e was in custody for 60 hours, he was questioned on four separate occasions, the last of which was after he invoked his right to remain silent."
In their opinion the Court of Appeals highlighted the fact that if progress is being made in the investigation custody can be maintained. "In Wisconsin, "post-arrest detention will be permitted as long as the detention is for a proper purpose, and the period of detention is not unjustifiably long under the circumstances of the case." Id. at 76, 277 N.W.2d 849 (internal citations omitted). "Activities that the authorities might reasonably undertake in order to determine whether to release or to charge include interrogating the suspect or witnesses, checking out the story told by the suspect or witnesses, and gathering evidence." Id.

"From the time Bean was arrested for probable cause until he confessed to the carjacking sixty hours later, the police were attempting to gather evidence and eliminate discrepancies in the various suspects' stories. In other words, they were continually moving forward, for the purpose of determining whether to charge Bean with participation in the carjacking."

"The circuit court concluded, and we agree, that there is nothing about Bean that makes him particularly susceptible to police pressure. He is an adult, has been arrested before, and is familiar with the criminal justice system. At the time of his confession, he had been in custody for sixty hours, but during that time he had eaten and had been provided an opportunity for a full night's sleep before the interrogation during which he confessed. Police had only questioned Bean for a total of two hours before his confession, and that two hours had been divided up among three different interrogations. Before each interrogation Bean was aware of his Miranda rights, and when he invoked his right to remain silent at the beginning of the third interrogation, that invocation was scrupulously honored. The circuit court described the tone of the fourth interrogation as "low-key" and found that "Detective Spano was anything but threatening."

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Is telling a suspect "that if he cooperated and told the truth, he would get more points off his ultimate sentence under the federal Sentencing Guidelines" a promise of leniency that nullifies the confession?

In the case US v Delaney ( November 2011) the U.S. District Court of Appeals, Sixth Circuit found that such a statement did not render a confession inadmissible. In their discussion as to what constitutes an acceptable promise, the court stated the following:
"The first prong of the Mahan test asks whether the agents' statements were objectively coercive. A promise of leniency in exchange for cooperation may be a relevant factor in determining whether a confession was involuntary. See United States v. Wrice, 954 F.2d 406, 411 (6th Cir.2002) (holding that "[a] promise of lenient treatment or of immediate release may be so attractive as to render a confession involuntary"). Nevertheless, such statements usually are permissible. See Williams v. Withrow, 944 F.2d 284, 289 (6th Cir.1991) (noting, "we have no doubt that effective interrogation techniques require, to some extent, a carrot-and-stick approach to eliciting information from an uncooperative suspect"), rev'd on other grounds, 507 U.S. 680 (1993). In general, such promises are coercive only "if they are broken or illusory." United States v. Johnson, 351 F.3d 254, 262, n. 1 (6th Cir.2003) (defining an illusory promise as "a statement in the form of a promise, but lacking its substance in that it does not actually commit the police to undertake or refrain from any particular course of action"); see also Williams, 944 F.2d at 289-90 (holding that confession was coerced because police told suspect that if he told the truth about his role in the murder, he would not be charged, but if he didn't talk, he would be charged with murder).

We have found that "promises to inform a prosecutor of cooperation do not, ipso facto, render a confession coerced." United States v. Stokes, 631 F.3d 802, 809 (quoting United States v. Wiley, 132 F. App'x 635, 640 (6th Cir.2005)); accord United States v. Shears, 762 F.2d 397, 401-02 (4th Cir.1985); United States v. Robinson, 698 F.2d 448 (D.C.Cir.1983); United States v. Curtis, 562 F.2d 1153, 1154 (9th Cir.1977), cert. denied, 439 U.S. 910 (1978); United States v. Pomares, 499 F.2d 1220, 1222 (2d Cir.1974), cert. denied, 419 U.S. 1032 (1974); United States v. Springer, 460 F.2d 1344, 1347 (7th Cir.1972). Similarly, promises "to recommend leniency" or "speculation that cooperation will have a positive effect" do not make subsequent statements involuntary.FN1 Wiley, 132 F. App'x at 640 (quoting United States v. Guerrero, 847 F.2d 1363, 1366 (9th Cir.1995)).

Here, the agents explained to Delaney that if he cooperated and told the truth, he would get more points off his ultimate sentence under the federal Sentencing Guidelines. They also explained that his chances of going home that day were greater if he cooperated. Certainly, the agents made these statements with the intent to compel Delaney to testify, but they were not false. The agents did not inform Delaney that he did not have to accept responsibility at that time to receive the sentence reduction, but the absence of this information does not render the statements illusory. Without more, these statements were permissible promises of possible leniency. See, e.g., Wiley, 132 F. App'x at 640 (holding that promises to inform prosecutor of defendant's cooperation and suggestions of leniency were not coercive); Wrice, 954 F.2d at 411 (holding that comments that the Sentencing Guidelines allowed for downward departure motions if the defendant cooperated were not coercive). In the absence of objectively coercive police activity, this Court does not have to consider the remaining two prongs of the Mahan standard. See Connelly, 479 U.S. at 167. Accordingly, as the challenged statements were not coercive, we find that Delaney's statements were not the result of illegitimate police coercion, and thus were voluntary.

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Leading questions which contain crime details can jeopardize the reliability of a confession

In the case People v. Rivera (December 2011) the Appellate Court of Illinois, Second District, overturned the conviction of the defendant, expressing concerns about the validity of his confession. In this case the defendant appealed his conviction for murder, claiming that "the State's evidence was insufficient to prove his guilt beyond a reasonable doubt. Defendant argues that the undisputed DNA testing excludes him as the source of the sperm on the vaginal swab taken at the victim's autopsy; the State's response to this exculpatory evidence was to offer unproved and speculative scenarios "so unreasonable, improbable or unsatisfactory" as to compel reasonable doubt of defendant's guilt; and the inculpatory evidence was so wanting that no reasonable trier of fact could conclude that it trumped the force of the exculpatory DNA evidence and other evidence excluding defendant. In short, defendant claims that DNA trumps all other evidence."
The Appellate Court found that there was no evidence linking the defendant to the crime, and that the DNA evidence "positively excluded" the defendant as the source of the sperm found in the victim.
In examining the defendant's interrogation and subsequent confession, the court found that "Contrary to the State's argument that there was no evidence that the police fed information to defendant, the record reflects that officers used leading questions during their interrogation of defendant. Both Maley and Tessmann interrogated defendant using facts of the case. Maley testified that, during the interrogation, he questioned defendant as to whether the victim was really wearing a nightgown. Tessmann admitted using leading questions regarding the victim's attire, asking "She had a multi-colored shirt on, right?" Maley's testimony reflected that Tessmann asked defendant questions "about facts in the previous statement that he believed were untrue." .... The evidence belies the State's argument and supports an inference that details of the crime were provided to defendant, intentionally or unintentionally, during the investigative process. The evidence further supports an inference that the details that defendant provided were the result of psychological suggestion or linguistic manipulation..... Given the circumstances surrounding the interrogation of defendant, we are left with the impression that the details of defendant's confession were procured "piecemeal" and not as a result of a candid acknowledgment of guilt. Over the course of four days, there were no fewer than 10 law enforcement personnel discussing the crime with defendant or interrogating him. It was the State's burden to establish that defendant was not plied with factual information of the crime to which he finally confessed.

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Failure to offer testimony of a false confession expert was insufficient reason to find trial counsel's performance deficient

In the case Royer v. State (December 2011) the Court of Appeals of Indiana rejected Royer's claim that because his trial counsel failed to consult with and offer testimony of a false confessions expert at Royer's trial, his trial counsel's performance was deficient..... "By failing to contact such experts, Royer alleges his trial counsel did not perform a reasonable investigation in preparing Royer's defense, and therefore could not have made a reasonable strategic decision on whether to offer expert testimony on false confessions at Royer's trial.... We find that Royer's trial counsel's testimony establishes that there was a reasonable, informed, and strategic choice to forego consulting with and offering testimony from false confession experts. Thus, we cannot say that Royer's trial counsel's performance was deficient in this regard."
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Two and one-half hours between initial interview (and advisement of rights) and the second interview without a re-advisement did not cause the rights to "grow stale."

In the case State v. Cleland (December 2011) the Court of Appeals of Ohio, Ninth District rejected the defendant's claim that the trial court should have suppressed the statements that he made to police officers after his first interview because his statements were not voluntarily made and because the investigating officer did not provide Miranda warnings before interviewing him again.
From their opinion, the Court of Appeal found that, "As the trial court found, Detective Dean Weinhardt orally informed Cleland of his Miranda rights at the beginning of his first interview and, at approximately 6:00 a.m., Cleland executed a waiver of rights form that contained the same information in written form. At 6:48 a.m., Cleland executed another acknowledgement of his Miranda rights contained on the form onto which he reduced a confession to writing. Detective Weinhardt interviewed Cleland again at 9:12 a.m. He did not re- Mirandize Cleland then, but did ask whether he still understood his rights as they were explained earlier.... it was not error for the trial court to deny the motion to suppress. The second interview was conducted in the same location by the same investigating officer only two and one-half hours later.... Our consideration of the Roberts factors, therefore, leads to the conclusion that the initial Miranda warnings had not grown stale before the second interview."

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17 hour interrogation not too long while police are still investigating the case

In the case Lumpkins v. Secretary Dept of Corrections (December 2011) the U.S. Court of Appeals, Eleventh Circuit, rejected the defendant's claim that his confession was involuntary because the interrogation in its entirety lasted 17 hours.
"We also conclude that the state court's determination that Lumpkins's confession was voluntary was supported by considerable evidence. As to length of the interrogation, the state court was not unreasonable in finding that the interview was extended in part because Lumpkins was attempting to establish his alibi. Lumpkins identified potential alibi witnesses and agreed to wait at the sheriff's office while the detectives located and interviewed the potential witnesses. The 17 hours thus included a 5 or 6 hour break while the detectives interviewed Lumpkins's alibi witnesses. Under these circumstances, the length of the interrogation did not render Lumpkins's confession involuntary."

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"I will tell you everything" is not an inculpatory statement

In the case White v. Bellnier (December 2011) the U.S. District Court, E.D. New York, rejected the petitioner's claim that he is entitled to habeas relief because his pre- Miranda statement, "I will tell you everything" was improperly admitted.

In their opinion the District Court found that, "The only statement made by petitioner prior to the administration of Miranda warnings was an avowal that he would tell the police everything if they brought him a Pepsi and cigarettes. The Court of Appeals properly observed, in the course of its analysis, that this statement was not inculpatory.... Under the law of this circuit, "[a]greeing to tell the truth, without more, is not an inculpatory or self-incriminating statement." ... Similarly, merely agreeing to tell the police "everything" does not implicate oneself in criminal activity.

The detectives' pre- Miranda questioning lasted five minutes and elicited no inculpatory statements. Although petitioner was arrested while intoxicated and was held for seventeen hours before being questioned, evidence was adduced at trial that petitioner slept and his personal needs were attended to during this period of detention. The record lacks any evidence of actual coercion."

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Is a request to talk to his mother invoking the defendant's right to remain silent?

In the case Locust v. Ricci (December 2011) the U.S. District Court, D. New Jersey, rejected the defendant's claim that the trial court erred in denying suppression of his inculpatory statements on the grounds that the police did not honor his request to invoke his right to counsel and his right to remain silent, and that the incriminating statements were the result of an overbearing of his will.

In their opinion the District Court stated that, "Defendant contends his request to speak with his mother was an invocation of the right to silence and that by continuing the questioning, the police "violated the bright-line rule" of State v. Hartley, 103 N.J. 252, 267 (1986), and his statement must be suppressed as unconstitutionally compelled.

However, not every request by a defendant or break in questioning is an invocation of the right to silence. Id. at 222. In order to invoke the bright-line rule and require scrupulous adherence to defendant's request to speak with a family member, the request must be made for the purpose of obtaining advice from a trusted family member... In other words, the request must be the equivalent of a direct statement that defendant does not wish to continue speaking with the police or wishes to obtain advice from the family member before any interrogation continues. Stated another way, the request must be the equivalent of a request to halt the questioning.

Here, the circumstances indicate that defendant was not, in fact, invoking his right to silence. Defendant expressly denied that he needed the assistance of counsel and thereby implied that his call to his mother would not be for obtaining advice but for some other purpose. Defendant also willingly agreed to postpone his call and appeared eager to bolster his claim of innocence. Indeed, according to the officers, defendant did not exhibit any unwillingness to speak with police at any time during the interrogation. Moreover, defendant signed several waiver forms, expressly waiving the assistance of an attorney and his right to silence. Consequently, we reject this argument.

In this same case, the court addressed the issue of overbearing the defendant's will - misrepresenting evidence

Locust also argues that his confession should have been suppressed because his free will was overborne and his statement was not given voluntarily, in violation of the Fifth Amendment. Locust raised this argument on direct appeal, insisting that the record shows that he was exhausted, hungry, impaired and frightened at the time he made his admissions. Furthermore, he claims that Captain George's misrepresentation about blood being found on petitioner's clothes was "flagrantly deceptive conduct" that had the capacity to overbear his will.

"The fact that the police lie to a suspect does not, by itself, render a confession involuntary." ... "[U]se of a psychologically-oriented technique during questioning is not inherently coercive[;] ... [t]he real issue is whether the person's decision to confess results from a change of mind rather than from an overbearing of the suspect's will ." ... In order to render a confession involuntary, the suspect must have been subjected to "very substantial" psychological pressure.

That is not what happened here. Defendant, who had normal intelligence, had prior experience with the police and fully comprehended his situation, as evidenced by his initial lies. Additionally, there was testimony on which the trial judge was fully entitled to rely, indicating that defendant was provided with food, drink, and cigarettes while at the station, that he appeared alert, that he was Mirandized at least three times, and that he was not mistreated in any way. The lie by Captain George did not have the capacity to overbear defendant's will. It seems more likely that defendant simply realized that he was not going to get away with the crime and decided to unburden himself. Therefore, we see no basis to suppress defendant's inculpatory statement.

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Confession found inadmissible - police violated Miranda and improperly misrepresented evidence to the suspect

In the case Aleman v. Village of Hanover Park (November 2011) the U.S. Court of Appeals, Seventh Circuit, found that the police acted improperly during the interrogation of Aleman.

In their opinion the Court of Appeals stated that, "Aleman indicated a desire for the assistance of counsel twice, and only after responding to further police-initiated custodial interrogation did he agree to be questioned. He said first "I gotta call my guy" (his lawyer) and after speaking to him reported that the lawyer had told him not to speak to the police--yet Micci continued to urge him to sign a Miranda waiver. Aleman invoked his right to counsel the second time when he asked to call his lawyer again. He might have done so a third time, but was prevented when Micci or Villanueva told him to hang up and added, "I ask that you don't use the phone again until we decide what we're gonna do." When a suspect invokes his right to counsel, the police may not recommence questioning unless the suspect's lawyer is present or the suspect initiates the conversation himself.

"There is more that was wrong with the interrogation than a violation of Miranda. Micci induced Aleman's "confession" by lying to him about the medical reports. The lies convinced Aleman that he must have been the cause of Joshua's shaken-baby syndrome because, according to Micci, the doctors had excluded any other possibility. (They had not.) The key statement in Aleman's "confession" was that "if the only way to cause [the injuries] is to shake that baby, then, when I shook that baby, I hurt that baby." The crucial word is "if." By lying about the medical reports, Micci changed "if" to "because" and thereby forced on Aleman a premise that led inexorably to the conclusion that he must have been responsible for Joshua's death; the lie if believed foreclosed any other conclusion.

"Courts have been reluctant to deem trickery by the police a basis for excluding a confession on the ground that the tricks made the confession coerced and thus involuntary. See Frazier v. Cupp, 394 U.S. 731, 739, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969); Holland v. McGinnis, 963 F.2d 1044, 1050-52 (7th Cir.1992); United States v. Velasquez, 885 F.2d 1076, 1088-89 (3d Cir.1989); State v. Kelekolio, 74 Haw. 479, 849 P.2d 58, 71-74 (1993). In United States v. Rutledge, 900 F.2d 1127, 1130-31 (7th Cir.1990), a police officer's statement to a suspect could be interpreted as promising "a net benefit from spilling the beans," and we said that "if this was the promise, it is unlikely that the officer intended to keep it; and if he did not, then the statement was fraudulent. But it was the sort of minor fraud that the cases allow. Far from making the police a fiduciary of the suspect, the law permits the police to pressure and cajole, conceal material facts, and actively mislead--all up to limits not exceeded here" (emphasis in original). The confession must be excluded only "if the government feeds the defendant false information that seriously distorts his choice, [for example] by promising him that if he confesses he will be set free"--in other words, only if "the false statement destroyed the information that he required for a rational choice."

"In this case a false statement did destroy the information required for a rational choice. Not being a medical expert, Aleman could not contradict what was represented to him as settled medical opinion. He had shaken Joshua, albeit gently; but if medical opinion excluded any other possible cause of the child's death, then, gentle as the shaking was, and innocently intended, it must have been the cause of death. Aleman had no rational basis, given his ignorance of medical science, to deny that he had to have been the cause.

The question of coercion is separate from that of reliability. A coerced confession is inadmissible (and this apart from Miranda) even if amply and convincingly corroborated... But a trick that is as likely to induce a false as a true confession renders a confession inadmissible because of its unreliability even if its voluntariness is conceded... If a question has only two answers-- A and B--and you tell the respondent that the answer is not A, and he has no basis for doubting you, then he is compelled by logic to "confess" that the answer is B. That was the vise the police placed Aleman in. They told him the only possible cause of Joshua's injuries was that he'd been shaken right before he collapsed; not being an expert in shaken-baby syndrome, Aleman could not deny the officers' false representation of medical opinion. And since he was the only person to have shaken Joshua immediately before Joshua's collapse, it was a logical necessity that he had been responsible for the child's death. Q.E.D. A confession so induced is worthless as evidence, and as a premise for an arrest."

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