Legal Updates Winter 2013

The value of recording interrogations; implication of a lighter sentence rejected

In the case Van Jackson v. State (October 2012) the decision by the Texas Court of Appeals, Austin, points out the value of investigators video recording the interrogation
In their decision the court stated that , "Jackson argues that the video proves that he was "fatigued, hungry, injured[,] and left isolated in a small room for some time" and that the detective induced his confession by suggesting that he might receive a lighter sentence if he was honest and apologized for robbing Rivas. However, the detective never made a positive promise to Jackson that he would receive a benefit by confessing. Rather, he told Jackson that juries want to hear defendants say they are sorry and that prosecutors want to know if defendants are cooperative, truthful, and apologetic. These general statements were not enough to render Jackson's statements involuntary.....

...... Although Jackson was arguably tired during the interrogation, the video shows that he was alert, coherent, and could answer the detective's questions. The detective's questioning lasted less than twenty minutes, and at no time was the detective threatening or overbearing.... Therefore, we conclude that Jackson's confession was voluntary, and the trial court did not err in denying Jackson's motion to suppress the confession. Jackson's second point of error is overruled.

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No requirement to record interrogation in Second Circuit

In the case Ezquerdo v. Lee (October 2012) the U.S. District Court, N.D. New York, rejected the defendant's claim that his confession should have been found inadmissible because it was not recorded.
"Ezquerdo's interrogation by the police was not electronically recorded. Ezquerdo contends this denied him due process. In rejecting Ezquerdo's argument the Appellate Division held that there was "no Federal or State due process requirement that interrogations and confessions be recorded.".... Ezquerdo has not cited any decision of the Supreme Court or the Second Circuit holding that due process requires that the police electronically record interrogations or confessions, and independent research by this Court has not revealed any such decision. Ezquerdo's reliance on decisions by the Alaska and Minnesota Supreme Courts is misplaced."

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U.S. District Court excludes the testimony of Dr. Richard Leo: "his theories are both unreliable and irrelevant"

In the case US v. Deuman (September 2012) the U.S. District Court, W.D. Michigan granted the government's motion to exclude the testimony of Dr. Richard Leo on the issue of false confessions....

In their opinion the court stated that, "If permitted to testify as an expert in this case, Dr. Leo would explain: (1) that false confessions or incriminating statements are counterintuitive; (2) why confessions are prejudicial; (3) risk factors for false confessions, such as interrogation techniques; and (4) the framework for how false confessions occur. Dr. Leo would not offer an opinion as to whether Defendant lied or made false statements or whether Defendant's statements are unreliable.

"Following the Daubert hearing, defense counsel submitted a lengthy affidavit from Dr. Leo, which discusses: (1) the background of Dr. Leo's research into false confessions; (2) his theory about the three decision points that lead to a false confession, i.e., the police decision to classify an individual as a suspect; use of psychological interrogation tactics as a means to move the suspect from denial of guilt to admission; and solicitation of a post-admission narrative from the suspect, in which the suspect provides an account of the crime that may be contaminated with non-public crime facts mentioned by the interrogator; (3) Defendant's account of events demonstrating that during and subsequent to the August 17, 2011, polygraph examination, the FBI agents used coercive interrogation techniques that can lead to false confessions; and (4) "dispositional" risk factors related by Dr. William Sanders that render Defendant more susceptible to making a false confession.

"...the Court will exclude Dr. Leo's testimony because his theories are both unreliable and irrelevant to the facts of this case, and any limited probative value they might have is substantially outweighed by the potential dangers of undue prejudice and misleading the jury.... Although this research confirms that false confessions do, in fact, occur and that certain coercive interrogation techniques may lead to false confessions, Dr. Leo's theory, at least at this stage in its development, provides neither a useful nor appropriate basis to assist a jury in assessing whether a particular confession, or even incriminating statement, was false.

"As Dr. Leo forthrightly admits, despite extensive research and review of false confession cases, his methodology cannot accurately predict the frequency and causes of false confessions.... His theories cannot discern whether a certain interrogation technique, used on a person with certain traits or characteristics, results in a predictable rate of false confessions. In addition, he has formulated no theory or methodology that can be tested.... While the Court is aware that some laboratory studies, such as the ALT key study by Professors Kassin and Perillo, suggest that coercive interrogation tactics produce a significant rate of false confessions, such studies shed no light on real-world interrogation practices and results because they "were not conducted by law enforcement, were not part of a criminal investigation, did not involve actual suspects, and did not present the students with a serious penalty." United States v. Jacques, 784 F.Supp.2d 59, 66 (D.Mass.2011)."

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Value of video recording interrogation: pregnancy did not affect defendant's ability to understand what was going on

In the case Lewis v. Miller (September 2012), the U.S. District Court, E.D. California upheld the lower court's decision to admit the defendant's incriminating statements, even though the "Defendant contends the "[t]he totality of circumstances demonstrate that [she] did not voluntarily waive her Miranda rights" and that she did not voluntarily confess to police. She bases these contentions on similar arguments: she invoked her privilege against self-incrimination by asking to speak with her mother; she was young, pregnant, in pain, and naive; the detective's introductory comments "softened" the impact of the Miranda advisements; and the detective's lie that Ramsey had called her the mastermind of the crimes suggested "coercion." As we explain, we agree with the trial court the statements were properly admitted."

In reaching their opinion the videotape of the interrogation proved invaluable to the Court, which stated, "This court has reviewed the videotape of petitioner's interrogation and agrees with the California Court of Appeal that petitioner's confession to police was not given involuntarily. There is no evidence petitioner was coerced to confess to a crime she did not commit or that she was intimidated or worn down by improper interrogation tactics, lengthy questioning, or anything else. On the contrary, petitioner answered the detective's questions fully and freely during an interrogation that was not unduly lengthy and never harsh. There is also no evidence that petitioner's will was overborne by the overall circumstances or the conduct of the interrogation. Petitioner was alert and articulate throughout the interrogation, she was offered breaks whenever she appeared to be in pain or upset, and she was given food and water and allowed to walk outside the interview room. The interrogation was not conducted in an uncomfortable location and petitioner was frequently asked how she felt and whether she needed anything.

Although petitioner was pregnant, there is no evidence the pregnancy interfered with her ability to respond to the detective's questions, that it prevented her from paying attention or following during the interview, or that it caused her to falsely confess. The one occasion in which petitioner appeared to be in pain occurred before the questioning began and was resolved by a short walk in the hallway outside the interview room. In fact, before the interrogation began, petitioner assured the detective that she was fine and ready to proceed. Of course, pregnant women are not categorically incapable of being interrogated, and there is no presumption that pregnancy itself results in involuntary statements. Certainly, that was not the case here. To the extent petitioner's pregnancy may have caused her to be in some physical discomfort, there is no evidence on the videotape that the discomfort interfered in any substantial way with the questioning. Nor is there evidence that hormonal changes compromised petitioner's ability to understand what was going on."

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Court excludes the testimony of Dr. Debra Davis on the issue of false confessions

In the case Commonwealth v. Szakal (August 2012) the Superior Court of Pennsylvania upheld the lower court's decision to exclude the testimony of Dr. Debra Davis on the issue of false confessions, stating in their opinion that "her testimony would not be of any assistance to the triers of fact "given that the jurors, during voir dire, admitted that they already knew false confessions occur."

"... Basically, the defense in this case was that [Appellant] lied in his recorded statement to police about his role in the murders of Mr. and Mrs. Springer. He claimed to be telling the truth when he took the stand and implicated his co-defendant, Mr. Tartt, as the trigger man. In other words, [Appellant] asked the jury to believe that he falsely confessed to the murders. The issue then, is whether the average juror, in this case, needed to be told that false confessions occur? This [c]ourt found that the jury did not; as almost every juror in the pool indicated that [he or she] believed that false confessions do occur. In fact, defense counsel raised that point in his closing argument.

"Moreover, if the expert is only testifying generally about the fact that false confessions happen, that is well within the grasp of the average layperson and expert testimony would not be required under Rule 702. The components of a false confession, according to Dr. Davis, include factors such as the interrogation tactics employed, the training of the law enforcement personnel involved, and the stress tolerance of the suspect. This [c]ourt found that testimony concerning these factors can be elicited (and attacked) through the testimony of other witnesses and is capable of being understood by the average juror. The jury can then make its own determination as to the weight afforded to the defendant's confession. Therefore, Dr. Davis' testimony was not proper because expert testimony is inadmissible when the matter can be described to the jury and the conditions evaluated by them without the assistance of one claiming to possess special knowledge upon the subject."

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Does a request for a lawyer before Miranda warnings are given require the investigators to stop questioning the suspect?

In the case Sessoms v. Runnels (August 2012) U.S. Court of Appeals, Ninth Circuit found that it did.

In their opinion the court stated that, "Here, any reasonable police officer (as indeed did these officers) would understand that Sessoms expressed his desire to have a lawyer present at his interrogation. Forty seconds into the conversation, before any meaningful exchange took place, Sessoms requested counsel twice in rapid succession. First, Sessoms said "There wouldn't be any possible way that I could have a--a lawyer present while we do this?" Although it was couched in a polite and diffident manner, the meaning of Sessoms's request was clear: he wanted a lawyer then and there.

If there were any doubt (which there should not have been), Sessoms immediately made a second statement: "Yeah, that's what my dad asked me to ask you guys ... uh, give me a lawyer." Simply put, the words "give me a lawyer" mean just that: "give me a lawyer."

Each of Sessoms's statements, taken on its own, clearly expresses his desire for an attorney. But when the two statements are taken together, that conclusion is indisputable.

Of course, the best test of how a reasonable police officer would understand Sessoms's request is how the actual police officer in this case responded. That reaction is telling. Detective Woods's response to Sessoms's statements--informing Sessoms that a lawyer would only prevent him from giving his side of the story and that, in any event, invocation was futile because the police already knew what happened--shows that he knew Sessoms was requesting a lawyer, and he wanted to do his best to talk Sessoms out of it.

Upon hearing Sessoms's request for an attorney, Detectives Woods and Keller were required to immediately terminate all questioning.

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Statements to the defendant that his denials were "bullshit" and that he was "kind of screwed" and that he was "fucked" were not threats

In the case Moore v. Scribner (October 2011) U.S. District Court, C.D. California rejected the defendant's claim that his confession was coerced by threats and lying about the evidence. From the court's opinion:

"Petitioner cites the following "threats" by Carr. During the first interview, Carr told Petitioner that his denials were "bullshit." ... Carr told Petitioner: "You're in deep trouble if you continue to feed me a line of bullshit." ... Carr also told Petitioner that because the police has physical evidence contradicting Petitioner's story, he was "kind of screwed." ... During the second interview, Carr told Petitioner he could "prove" Petitioner was at the scene of the crime... Carr added: "I don't believe you shot the man. What I do know is you're fucked unless you can come up with a reason and explain to me what happened."

None of Petitioner's allegations rises to the level of a threat indicating Petitioner's confession was coerced. Carr's statements that Petitioner was in "deep trouble," was "kind of screwed," and was "fucked" were designed to induce Petitioner to tell the truth. Carr did not threaten Petitioner with any specific consequence if Petitioner failed to confess.

Petitioner argues that Carr's misrepresentations about the evidence constituted coercion. ... During the first interview, Carr told Petitioner there was "physical evidence" that placed Petitioner at the crime scene... When Petitioner asked what evidence, Carr did not respond... During the second interview, Carr said the police had lifted fingerprints from Bennett's apartment door and a glass table inside the apartment, and the fingerprints matched Petitioner's.... After Carr continued to push for a reasonable explanation, Petitioner finally stated that "[i]t was a robbery."

Standing alone, Carr's misrepresentations would be insufficient to render Petitioner's confession involuntary. Petitioner also argues Carr made promises of leniency. Petitioner argues Carr told Petitioner that unless Petitioner gave a "reasonable explanation" for what occurred, he would be "fucked," whereas if he gave a reasonable explanation, he would be "set ... free." ... Petitioner's contention distorts the record. While Carr repeatedly asked for a "reasonable explanation"..., there is no evidence Carr promised leniency. Telling Petitioner that he's "screwed" or he's "fucked" if he does not cooperate... does not amount to a promise of leniency. Telling Petitioner that his "cooperation is gonna go a heck of a long way" is not a promise of leniency.

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Ohio juvenile not statutorily entitled to counsel during an interrogation which occurs prior to invocation of court's jurisdiction

In the case In re M.W. (October 2012) the Supreme Court of Ohio held that "As a matter of first impression... police interrogation of juvenile prior to an invocation of juvenile court's jurisdiction was not "proceeding" in which juvenile was statutorily entitled to representation by counsel."

From the court's opinion: R.C. 2151.352 provides: "A child, the child's parents or custodian, or any other person in loco parentis of the child is entitled to representation by legal counsel at all stages of the proceedings under this chapter or Chapter 2152 of the Revised Code."

The fallacy of M.W.'s argument is highlighted by the fact that he invokes a right to counsel pursuant to R.C. 2151.352 before the delinquency matter is brought against him in juvenile court. His reliance on R.C. 2151.352, which requires a court to appoint counsel or ascertain whether a party is aware of his right to counsel, is weakened by the fact that the jurisdiction of the juvenile court had not yet been invoked, and thus no court had authority to act.

In view of these reasons and the plain language of R.C. 2151.352, we conclude that an interrogation that occurs prior to the filing of a complaint alleging delinquency or prior to an appearance in juvenile court is not a proceeding that falls within the scope of R.C. Chapter 2151. This determination is consistent with our duty to construe statutes to avoid unjust and unreasonable results. R.C. 1.47(C).

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Can a suspect who claims he was in the "midst of a psychotic break from reality" during the interrogation give a voluntary statement?

In the case People v. Kooyman (October 2012) Court of Appeal, Fourth District, Division 2, California, the "Defendant contends that he suffers from a mental illness and that, after he was arrested, he was deprived of the proper medication to treat his mental illness. "Defendant further contends that the officers who interrogated him took advantage of his impaired mental state to coerce a confession. Thus, defendant argues that the trial court erred in allowing the prosecution to introduce the evidence of defendant's statements to police, because they were not voluntary.

"Defendant contends that the circumstances of the interviews show that defendant "appear[ed] to be in the midst of a psychotic break from reality, [that he was] without psychiatric medication for two days, [that he was] on suicide watch, and [he] believe[d] that police [were] angels from God or 'from another universe.' " Defendant urges that any interrogation in such circumstances is coercive. "Pretending to actually be an angel from God who means [defendant] no harm, is deceptive and constitutes police overreaching."

"We must look, however, to the totality of--i.e., all --the circumstances. Police tactics of using deception is not necessarily coercive. The question is whether the deception is reasonably likely to produce an untrue statement... 'The courts have prohibited only those psychological ploys which, under all the circumstances, are so coercive that they tend to produce a statement that is both involuntary and unreliable.' " ... Here, there was no deception of a character likely to induce defendant to make an untrue statement. The officers' "deception"--their acceptance of defendant's suggestion that they had been brought into defendant's life for a reason--was part and parcel of their general encouragement to defendant to tell the truth.

"Throughout the interviews here, defendant carried on a conversation and responded rationally to many questions. He described how he was living in his truck, explained where he had gone, how he had spent his time, and what he did. The officers did not threaten defendant or shout at him, but rather soothed him and encouraged him to relieve his conscience by telling them what he had done. There was nothing coercive in the officers' demeanor. Their tactics were simply to encourage defendant to open up, ...
We conclude, based on those factual findings and the reasonable inferences therefrom, that the officers did not act coercively, and defendant's admissions were voluntary."

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Interrogator's "empathetic and caring demeanor" was not coercive

In the case People v. Powell (October 2012) Court of Appeal, First District, Division 3, California, the court upheld the admissibility of the defendant's confession, finding that "There was no improper coercion here. It is no exaggeration to say that Sergeant Alexander came across more like a mentor than a police officer during the interview. He spoke about family, character, overcoming problems, accepting responsibility for wrongdoing, and becoming a better man. He urged Powell to "walk the righteous path," to "do the right thing," to "tak[e] control of your life." He touched Powell gently on the leg and shoulder and said he was a good person who never intended for someone to die. "[O]n that day you made a bad decision. But ... your decision was not as bad as the outcome. You're not a killer." He told Powell that he cared about him and his mother, and that he believed Powell was "put on this earth to excel and succeed in life. And, unfortunately, you're not, you are making decisions that aren't good up 'til this point. This could be a turning point." He urged Powell to help himself and "do what's best for you right now." He invited Powell to think about a future life, family and career "when this is all said and done...."

"But, at no point during the interview did either officer expressly or impliedly promise Powell that he might not be charged with, prosecuted for, or convicted of the murder if he cooperated. They did not suggest that Powell could influence the decisions of the court or district attorney, but simply suggested that his truthfulness would be beneficial in an unspecified way. Indeed, Sergeant Alexander said he did not know what kind of charges would be brought and that those decisions were made by other people. Under the circumstances, the officer's suggestion that it would be better for Powell to tell the truth and promptings to consider his future did not amount to a promise of leniency. ..

"Powell's contention that the police officers improperly implied he was not fully responsible for the murder because he was a "victim of the circumstances" and did not intend for someone to get killed must also be rejected. It is entirely permissible for police to suggest possible explanations of the events and offer the suspect an opportunity to provide the details of the crime.... Powell's confession was not coerced by lies or false promises, but was free and voluntary.

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Interrogator deception that "crosses the line"

In the case People v. Aveni (October 2012) Supreme Court, Appellate Division, Second Department, New York the court stated that "This case presents us with an opportunity to decide under what circumstances the police, while interrogating a suspect, exceed permissible deception, such that a suspect's statements to the police must be suppressed because they were unconstitutionally coerced.

"Here, the defendant argues that his statements should be suppressed because the detectives improperly deceived him when they explicitly lied to him by telling him that Camillo was alive and that the physicians treating her needed to know what drugs she had taken or else she could die, and implicitly threatened him with a homicide charge by stating, "[I]f you lie to me and don't tell me the truth now ... it could be a problem."

Our review of the case law amply demonstrates that when interrogating a suspect, the police may, as part of their investigatory efforts, deceive a suspect, and any resulting statement will not be suppressed for that reason alone .... However, even with a voluntary, knowing, and intelligent waiver of one's Miranda rights, there are boundaries the police cannot cross during an interrogation. While deception may be used to obtain a statement, police conduct must not be so "fundamentally unfair as to deny due process"

"In this case, the detectives coerced the defendant's confession by deceiving him into believing that Camillo was alive and implicitly threatening him with a homicide charge if he remained silent. The detectives used the threat of a homicide charge to elicit an incriminating statement by essentially telling the defendant that the consequences of remaining silent would lead to Camillo's death, which "could be a problem" for him. Faced with this Hobson's choice, the defendant had no acceptable alternative but to talk to the police. By lying to him and threatening him, the detectives eviscerated any sense the defendant may have had that he could safely exercise his privilege against self-incrimination and put the People to their proof. Either he would tell them what he knew or he would face the probability of life imprisonment if Camillo died. In light of the detectives' implicit threat of a homicide charge if the defendant remained silent, we cannot conclude that the defendant voluntarily waived his Fifth Amendment privilege against self-incrimination.

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Fifth Miranda warning not required

In the case Commonwealth v. Ashley (November 2012) Appeals Court of Massachusetts, Bristol, upheld the lower court decision that the fifth Miranda right - that the suspect can stop answering questions at anytime - is not required.

"The motion judge concluded that since the fifth so-called "right" was not required, the form's misstatement was harmless, deeming the claim of error forestalled by the holding in Novo. There the court observed that the giving of a fifth "right" by police, namely, the right to stop answering questions at any time even if an accused has answered some questions, is not a core Miranda right of which the police must apprise the defendant. Novo, 442 Mass. at 271, 812 N.E.2d 1169, citing Commonwealth v. Silanskas, 433 Mass. 678, 688 n. 11, 746 N.E.2d 445 (2001)."

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Police do not have to tell suspect defense counsel is present if suspect waived his rights

In State v. Stevens (July 2012) Supreme Court of Wisconsin held that "police had no duty to inform defendant that defense counsel from prior pending case was trying to see him, after defendant waived his Miranda rights by initiating conversation with police officer after custodial interrogation had been ceased due to defendant's invocation of his right to an attorney."

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The value of recording: examining the issue of mental illness on the admissibility of a confession

In the case Keeling v. Commonwealth (October 2012) the Supreme Court of Kentucky considered the issue of mental illness and its effect on the admissibility of a confession. In this case, the "Appellant next argues that the trial court committed reversible error by failing to suppress post-arrest statements he offered to the police. Specifically, he contends that, due to the fact that he suffered from a mental illness causing hallucinations and delusions, any statement he made would be unreliable. Thus, he contends that his mental illness rendered his statements "involuntary" for Fifth Amendment Miranda purposes."

.... "The U.S. Supreme Court has recognized that an accused's mental condition is a factor when determining the voluntariness of a confession.... However, "a defendant's mental condition, by itself and apart from its relation to official coercion," does not render a confession constitutionally involuntary.... Thus, although a defendant's mental illness can be considered in determining whether law enforcement coerced a confession... it is not, without some official coercion, sufficient for suppression purposes.

... "We note first that Appellant is a man of average intelligence, testing at an IQ of 95. He was read his Miranda rights before giving his statement to police. He acknowledged that he understood these rights and signed a waiver. We have thoroughly reviewed his audio-taped confession and conclude that there is absolutely no evidence of coercion, psychological or otherwise. While it may be true that, due to his mental illness and lack of medication, Appellant "was probably not able to make adequate judgment about what was going *on at the time of questioning," as Dr. Sively testified at trial, this is not enough to render his confession constitutionally involuntary.

... " '[T]he central purpose of a criminal trial is to decide the factual question of the defendant's guilt or innocence." ... Accordingly, a voluntary confession by a mentally ill defendant is admissible at trial absent some indicia of official coercion... However, without evidence that law enforcement officers exploited an accused's mental illness to obtain the confession, the exclusionary rule does not apply.

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Do statements such as, "these things happen, it is ok"; "we don't believe you had any intentions of doing it" and "a tragic accident occurred" offer a promise of leniency?

In the case US v. Hunter (December 2012) the US District Court, E.D. Virginia, upheld the lower court's decision to admit the defendant's confessions. "The facts and circumstances in this case establish that Hunter's statements were "voluntary" for constitutional purposes. Though still in her early twenties, the defendant was not a juvenile at the time of C.P.'s injuries or her interrogation. There is no evidence in the record that Hunter lacks education or has low intelligence. Neither Agent David nor Investigator Hampton harmed or threatened to harm Hunter if she did not answer their questions.

... "Of all the facts pertaining to the voluntariness of Hunter's statements, the most concerning are Agent David's intentional efforts to minimize the seriousness of the defendant's criminal exposure, which certainly had the potential to cause Hunter to discount her own assessment of her jeopardy, as evidenced in her initial description of events. The defendant also claims that by making such statements as such as "these things happen, it is okay", "no one is going to fault you for it", "we don't believe you had any intentions of doing it", and "a tragic accident occurred" [Doc. No. 33], Agent David made an "implied promise" that if Hunter were to admit to shaking C.P., she (Hunter) would suffer no punishment. Likewise, the defendant argues that Agent David impermissibly induced her statements by suggesting that she (Hunter) needed to provide accurate details of how C.P. was injured in order to maximize the chances of C.P.'s recovery. Based on these and other statements, the defendant claims that overall, her will was "overborne" by Agent David's tactics and that her "capacity for self-determination was critical impaired," particularly when Agent David allegedly conditioned Hunter's ability to see her husband on her willingness to confess. Doc. Nos. 33 & 46; Draft Tr. 65:1-24. The Court will examine each of these arguments in turn.

... "In this Circuit, only certain types of promises, when not kept, will render a resulting confession involuntary. Id. These promises are limited to explicit statements by the questioning official that he will do, or not do, a specific act, in exchange for the confession... Moreover, the cases that have suppressed statements on the basis of an implied promise involve promises that were compelling in terms of the consequences that would befall the defendant or those associated with the defendant.

,,, "Agent David's statements were not so much promises as they were opinions concerning the criminality of Hunter's conduct and how it would be viewed by others. While Agent David's repeated assurances that she understood how Hunter must have felt and that she (Agent David) believed the incident was an accident were no doubt persuasive and inducing, nothing in those statements constitutes a quid pro quo promise to Hunter in exchange for a confession. Based on all the facts and circumstances, the Court finds that that Agent David did not make a promise to Hunter that vitiates her confession.

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Improper promise of leniency- treatment in lieu of jail

In the case State v. Howard (December 2012) the Iowa Supreme Court found that "the detective's questioning crossed the line into an improper promise of leniency under our long-standing precedents, rendering Howard's subsequent confession inadmissible."
In their opinion the Iowa Supreme Court stated that, "It is true, as the court of appeals' majority noted, Detective Hull never overtly told Howard he would receive a lighter sentence if he confessed. He never said an inpatient treatment program would be the only consequence. He stated no quid pro quo out loud. But, his line of questioning was misleading by omission. As the court of appeals' well-reasoned dissent aptly observed, "Officer Hull's statements strategically planted in Howard's mind the idea that he would receive treatment, and nothing more, if he confessed."... Detective Hull's repeated references to getting help combined with his overt suggestions that after such treatment Howard could rejoin Jessica and A.E. conveyed the false impression that if Howard admitted to sexually abusing A.E. he merely would be sent to a treatment facility similar to that used to treat drug and alcohol addiction in lieu of further punishment. Significantly, Detective Hull did not counter this false impression with any disclaimer that he could make no promises or that charges would be up to the county attorney. We hold his interrogation crossed the line into an impermissible promise of leniency, rendering the confession that followed inadmissible."

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