Legal Updates Winter 2014

Expert testimony on witness credibility excluded

In US v. Benedict (December 2013) the US District Court, D. Minnesota, excluded the testimony of an expert witness on the issue of witness credibility. In their opinion the District Court stated the following:

"While Defendants argue that the proffered testimony of Dr. Neuschatz will be helpful to the jury, the Court disagrees. Based on his affidavit, it appears that Dr. Neuschatz would opine about the "persuasive" and "corruptive" power of confession evidence--i.e., the evidence of cooperating witnesses.... He avers, "Without expert assistance, jurors' abilities to assess the veracity of a witness's testimony are extremely limited." ... The Eighth Circuit has stated that

[b]ecause expert evidence can be both powerful and quite misleading, a trial court must take special care to weigh the risk of unfair prejudice against the probative value of the evidence under Fed.R.Evid. 403. It is plain error to admit testimony that is a thinly veiled comment on a witness's credibility....

....... This is because "[w]eighing evidence and determining credibility are tasks exclusive to the jury, and an expert should not offer an opinion about the truthfulness of witness testimony."

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Confession suppressed because suspect was advised that no matter how many robberies she committed all the sentences would run concurrent

In US v. Sharp (December 2013) the US District Court, W.D. Kentucky, ruled that the defendant's confession should be suppressed because it was the result of a promise that all sentences would run concurrently, and the statement if she did not confess the sentences would run consecutively.

Specifically the court stated, "Defendant contends that the police promised in both the interrogation concerning the Hayes Oil robbery and the Kangaroo Express robbery that she would be sentenced concurrently with the robbery of Fifth Third Bank. Based on the transcript of the interrogation on June 29, 2012, the Court finds substantial corroboration in the record that the police promised just prior to Ms. Sharp's confession in each instance that she would be sentenced concurrently with the Fifth Third robbery. As to the interrogation concerning Hayes Oil, Detective Book informed Defendant that it did not matter how many crimes that she confessed to at that point because the Government was "not going to run sentences after sentences after sentences" on her.... Detective Book reiterated this point before informing her that the police had a video of her committing the Hayes Oil robbery. The interrogation concerning Kangaroo Express followed almost the exact same pattern. In fact, Detective Herndon not only explained the difference between consecutive and concurrent sentencing but also specifically stated, "As a general rule, it doesn't matter how many crimes you've committed, they run the sentences concurrently." Id. at 34. Detective Herndon then continued to explain that if she did not confess at that time and the police found more evidence to charge her with the robbery of Kangaroo Express, then "by the time that catches up you may have to run your case consecutively as opposed to concurrently." Id. at 35. Again, the conversation turned to a brief discussion about the existence of a video, and then Ms. Sharp confessed to robbing the Kangaroo Express.

While police conduct during an interrogation is the most relevant part in examining a potentially coerced confession, the Court should also examine the characteristics of the accused... During questioning about Hayes Oil, the police asked Ms. Sharp if she was familiar with the legal system and how sentencing worked. She responded in the negative and stated that she had been only been arrested for possession of marijuana previously. Ms. Sharp does not appear to be an individual familiar with the legal system as to suggest she would know how sentencing worked. Additionally, the Court takes into account Ms. Sharp's below average IQ in accessing her relative susceptibility to police coercion during the interrogation. These factors contributed to the lack of voluntariness of Ms. Sharp's confessions for the robberies of Hayes Oil and Kangaroo Express.

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Court finds that the suspect's physical condition during the interrogation rendered his confession inadmissible

In US v. Taylor (December 2013) the US Court of Appeals, Second Circuit over ruled a lower court and found that due to the defendant's physical condition at the time of the interrogation his confession was not made voluntarily. From their opinion, "Taylor claims he was mentally incapacitated during the April 9 interview because of the quantity of Xanax pills he ingested immediately before his arrest. That claim finds support in the record. Detective Burch testified that Taylor's body "was somewhat shutting down," and that "at that time that he was answering questions ... his body was giving up on him." ... Granted, Burch also testified that, when Taylor was speaking, he was "coherent" and understood what was going on when he was not nodding off. Id. But it nonetheless appears that Taylor fell asleep at least two or three times during the interview, and the officers repeatedly had to awaken him, or (to use the nicer term) "refocus" him--at one point coaxing him, "Mr. Taylor, you have to answer our questions and focus with us."... Agent Tomas corroborated that Taylor was "a little bit out of it" and dozing off.

The district court credited testimony that Taylor was coherent at times. One such interval is when Taylor signed the "advice of rights" form on April 9, a finding that we do not disturb. But as that interview progressed, it became clear to the officers (as their testimony confirms) that Taylor was in and out of consciousness while giving his statement, and in a trance or a stupor most of the time when not actually asleep. Thus, the officers' persistent questioning took undue advantage of Taylor's diminished mental state, and ultimately overbore his will. Accordingly, we conclude that Taylor's statement on April 9 was not voluntary and should have been suppressed."

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Threat to arrest defendant's mother and aunt rendered incriminating statement inadmissible

In US v. Ortiz (May 2013) the US District Court, S.D. New York, ruled that the defendant's incriminating statements (while in his apartment where a gun was found) were coerced by threats that the defendant's mother and aunt would be arrested unless he acknowledged owning the gun. In their opinion the court stated that, "The Second Circuit has never squarely addressed whether a threat to arrest a suspect's family member renders that suspect's confession involuntary. Several other circuits, as well as several district courts in this circuit, have considered this question, however, and have all reached a similar conclusion: such a threat does not render a confession involuntary if the police have probable cause to arrest the family member and thus could lawfully carry out the threat.

Here, as a result of Martinez's threat, Defendant's confession fell on the wrong side of that line. Under the rule followed by courts in this circuit and others, Martinez's threat to arrest Montanez [mother] and Defendant's elderly aunt was improper unless the police had probable cause to arrest those individuals and thus could lawfully act on the threat. The government has already conceded that such probable cause was lacking as to Defendant's aunt, so the threat to arrest her clearly was improper.... With respect to Montanez, the government argues that because she was the registered tenant of the apartment where the gun was found, the officers had probable cause to arrest her based on a theory of constructive possession.... Here, by contrast, the officers discovered the gun inside the breast pocket of a man's coat located in a closed closet that Defendant had told officers housed his possessions.... In addition, ... there is no allegation here that the Apartment was regularly used for criminal activity. Under these facts, a reasonable officer could not have concluded that there was probable cause to arrest Montanez for constructive possession of the gun. Martinez therefore had no basis for threatening to arrest either Montanez or Defendant's aunt, and so his threat to do so was sufficiently overreaching as to warrant suppression of Defendant's self-incriminating statements at the Apartment."

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Statement to the effect that the defendant had a "chance to reduce the potential charges or sentencing" if he showed remorse and confessed did not render the confession inadmissible

In US v. Takai (April 2013) the US District Court, D. Utah, the court found that statements to the effect that the defendant had a "chance to reduce the potential charges or sentencing" if he showed remorse and confessed did not render the confession inadmissible. In their opinion the court stated that, "Defendant's allegations of coercive tactics in the second interview revolve mainly around Agent Quirk and Detective Coats' various statements promising that they would speak to prosecutors to recommend leniency if he ... would come clean and show remorse. The transcript of the interview reveals numerous such statements.

In the interview, Agent Quirk and Detective Coats repeatedly made statements to the effect that there was a "chance to reduce the potential charges or sentencing" if he showed remorse and confessed... The basis of such statements was that the investigators would recommend leniency to the prosecutors. And both Detective Coats and Agent Quirk repeatedly clarified that they did not have the authority to make promises, control the charges, the sentencing, or even whether the case would be filed in state or federal court, though they did encourage Defendant by saying that cooperation might help... This court held in.... that in an interrogation, officers may "speculate that such cooperation will have a positive effect" as long as they do not "go beyond limited assurances." .... The court finds that Agent Quirk and Detective Coats' statements, though to some extent "promises" (but not of leniency; rather, promises to speak to the prosecutors to recommend leniency), were carefully hedged to avoid going "beyond limited assurances." ...Thus, the court finds there was no police misconduct in this interview that would justify looking further into specific characteristics of Defendant that could affect the voluntariness of his confessions where coercive police conduct has been found.

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Threatening deportation was coercive

In People v. Ramadon (December 2013) the Supreme Court of Colorado upheld the lower court's decision to suppress the defendant's statements that were made after the investigator threatened to deport him to Iraq if he did not tell the truth. In their opinion the Supreme Court stated that, "After viewing the videotape of the interrogation, we uphold the trial court's suppression order starting at minute fifty-four, instead of minute forty-two, when the interrogating officer told Ramadon that, if he did not tell the truth, he would likely be deported to Iraq. The record supports the trial court's conclusion that coercive police conduct during the custodial interrogation starting at the fifty-four minute mark played a significant role in inducing Ramadon' s inculpatory statements.

Notably, advising a defendant of immigration consequences alone would likely not demonstrate coercion absent other evidence demonstrating involuntariness under the totality of the circumstances. The purpose of the test is to examine the tactics used by the police given the situation, the defendant's vulnerability, and other attendant circumstances. However, under the totality of the circumstances in this case, the invocation of deportation was coercive. Allen's purpose was not to provide legal advice to Ramadon, but to threaten Ramadon into making inculpatory statements."

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Court bars Dr. Richard Leo from testifying: proposed area of expert testimony has not reached the "level of scientific reliability"

In Woodall v. State (January 2014) the Supreme Court of Georgia upheld the lower court's decision to exclude the testimony of Dr. Richard Leo.

"Appellant contends the trial court erred when it denied his request to tender Dr. Richard Leo as an expert in police interrogation techniques and false confessions. This Court has upheld rulings within the last several years that this proposed area of expert testimony has not reached the "level of scientific reliability" necessary to allow its admission at trial.... Having reviewed the hearing transcript on the expert's proffer FN 8 in this case, we conclude the trial court did not abuse its discretion when it barred the expert from testifying in this case.

FN 8. Dr. Leo, who is a social psychologist and criminologist, stated that he wrote his doctoral thesis on false confessions and he indicated that he had personally viewed two to three hundred videotaped confessions since 1994. He stated, however, that there is no database of false confessions and each researcher is limited by his own collection of data. He also testified that not every jurisdiction is required to videotape interrogations and so any data is also limited in that respect. Dr. Leo said he reviewed the videotape of appellant's confession, but was not asked to determine whether appellant's confession was true or false. He also admitted he could not opine to the jury as to whether any particular interrogation resulted in a false confession, stating that the most he could do for the jury was identify the police interrogation techniques being utilized in the video."

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The statement to the suspect that "It would be worse for you" if you did not talk to law enforcement was coercive

In US v. Ramirez (January 2014) the US District Court, S.D. Florida found that the investigator's statement to the defendant that "It would be worse" for him if he did not speak to law enforcement was coercive.

"In the defendant's case, the court emphasized that the detective told the defendant that a disadvantage of having a lawyer present was that the lawyer would instruct the defendant not to answer questions, yet, the court explained, "[t]he reason for requiring a lawyer during custodial interrogation is to protect a suspect's privilege against self incrimination." Id. at 894. In addition, the court exhibited particular concern that the detective's statement that "honesty wouldn't hurt [the defendant]" "contradicted the Miranda warning that 'anything he said could be used against him in court.' [ ] The phrase 'honesty will not hurt you' is simply not compatible with the phrase 'anything you say can be used against you in court.' The former suggested to [the defendant] that an incriminating statement would not have detrimental consequences while the latter suggested (correctly) that an incriminating statement would be presented at his trial as evidence of his guilt." Id.

Here, a problem similar to the one that arose in Beale and Hart exists: one of the detectives gave Defendant advice that contradicts one of the Miranda warnings. As in Beale and Hart, the offending advice implicated the Fifth Amendment right not to incriminate oneself. In particular, the detective advised Defendant that "it would be worse" if he did not provide a statement. In fact, however, the Fifth Amendment provides for the exact opposite. It protects a person's right to remain silent and precludes a defendant's decision not to give a statement from being used against that defendant. By instructing Defendant that he would be penalized by not speaking with the detectives and agent, the detective directly contradicted the very right that the Miranda warnings seek to safeguard.

Moreover, the instruction provided in this case is perhaps even more troubling than that found to be inappropriate in Beale and Hart. In Beale and Hart, the officers advised the defendants that speaking would not hurt them, which contradicted an express part of the Miranda warning--"anything you say can and will be used against you in a court of law." Here, however, while the instruction that "it would be worse" if Defendant did not provide a statement conflicts with the Fifth Amendment's guarantee that a defendant's silence will not be used against him, no express part of the Miranda warning advised Defendant in the first place that his silence could not be used against him. Instead, the Miranda warning instructs only that a subject has the right to remain silent. Consequently, whereas the officers' statements in Beale and Hart may have been confusing to the defendants since they contradicted an express part of the Miranda rights given, here, nothing suggested to Defendant, contrary to the detective's advice that "it would be worse" if he did not give a statement, that his silence could not be used against him."

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Repeatedly threatening a seventeen-year-old with the death penalty is "objectively coercive"

In Dye v. Commonwealth (June 2013) the Supreme Court of Kentucky found that the defendant's confession was coerced by threats of the death penalty if he did not confess.

"First, the officers incorrectly and repeatedly informed Appellant that, if convicted, he could receive the death penalty (i.e., that he was "death eligible"). ... the U.S. Supreme Court held that the Eighth and Fourteenth Amendments to the U.S. Constitution impose a categorical bar to executing individuals who were under eighteen years old at the time of the crimes.... It is undisputed that all four interrogating officers knew Appellant was seventeen years old....

Each death penalty reference was immediately followed by an officer asserting that the only way for Appellant to avoid execution was to confess to the murder. Perhaps the most troubling exchange between Appellant and the officers regarding the death penalty occurred about an hour into the interrogation. To this point, Appellant had not made any incriminating statements and the officers had left the room to give Appellant a break. During the break Appellant began to cry. When the officers returned to the room, the following exchange occurred:

Officer: Are you sure you don't want anything? Use the bathroom or anything? You hungry or anything?

Appellant: I don't know what I am. I'm just scared.

Officer: I know you're scared, man. I know you are.

Appellant: Is it the death penalty?

Officer: I'm sorry?

Appellant: Are they gonna give me the death penalty?

Officer: Oh yeah.

Appellant: [inaudible]

Officer: Now, you'll probably spend twenty or thirty years on death row in a room all by yourself.... That's why I was trying to tell you man, this is the only chance you got to avoid all that right now. Tonight, tonight will be your only chance.

Not only did the officer erroneously convey that Appellant was death-eligible, but also that he was certain to receive a death sentence unless he confessed to his sister's murder.
We hold that repeatedly threatening a seventeen-year-old with the death penalty is "objectively coercive."

Likewise, the officers made several inappropriate allusions to prison violence or rape throughout the interrogation. For example, about an hour into the interrogation one of the officers warned Appellant: "I can tell you right now, a seventeen-year-old or eighteen-year-old young buck straight into [the Kentucky State Prison (KSP) at] Eddyville, killing a nine-year-old--you can imagine what they're going to do to you on a daily basis." A second officer told Appellant that he "wouldn't want nobody to have to do that to my own son, but that's exactly what they're going to do to you."

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Video recording protects the confession

In State v. Walker (November 2013) the Court of Appeal of Louisiana, Second Circuit held that the defendant's confession was admissible.

"Defendant complains that he did not understand his Miranda rights or have the ability to comprehend his actions. He asserted that he did not knowingly, intelligently, and voluntarily waive his rights prior to giving the confession. On appeal, he argues that his confession was the product of fear, duress, intimidation, menaces, threats, inducements and/or promises.

The trial court was correct to conclude that defendant's statements, including his confession, were freely and voluntary made. Twice on the video, the defendant is re-advised of his rights. He begins reciting the events as they occurred and appears relieved to be doing so. He is brought dinner during the confession, and he eats. He is allowed to smoke. There is no coercion.

The defendant emphasizes that:

* the officers worked in shifts on him;

* they played on his concern for his family;

* he has only a sixth grade education;

* he was hungry, tired, scared, wanted to smoke, and see his family;

* the officers used all of these emotions to coerce a confession from him.

None of these accusations are borne out by the testimony of the troopers or by a review of the DVD. The defendant told the officers that he had completed his GED and had no difficulty reading and writing. He was provided food, beverages, breaks when requested, and was assured he would see his family. Once dinner was finished, he was provided a cigarette to smoke. The totality of this record displays a free and voluntarily decision to confess. The trial court did not abuse its great discretion in finding that the state met its burden of proof."

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Lying about DNA evidence did not make the confession inadmissible

In State v. Smith (February 2014) the Court of Appeals of Nebraska found that lying to a suspect about DNA evidence did not render the confession inadmissible. From the court's opinion:

"Smith asserts that he repeatedly denied the accusations until the detective "told him the police had his DNA evidence on [E.H.'s] clothes," and this made "Smith believe that the police had scientific proof that he [was] guilty of the charges." Smith claims that the detective's tactics were employed to elicit an incriminating statement and that "[a]lthough providing false information to a suspect has been deemed normal police protocol, taken in the totality of the circumstances it was a direct violation of ... Smith's constitutional rights."

It is fundamental that a statement must be suppressed if it is obtained by offensive police practices.... However, mere deception will not render a statement involuntary or unreliable; the test for determining the admissibility of a statement obtained by police deception is whether that deception produced a false or untrustworthy confession or statement. Id. If a benefit is offered in exchange for testimony, and the offer is definite, then a confession is involuntary and must be suppressed...

Nothing in this record indicates that Smith's statements made to Kavars or the letter written to E.H. were false or untrustworthy, nor is there any evidence that Kavars made any inappropriate offers to Smith in exchange for a statement. Kavars testified that the OPD has a protocol for conducting suspect interviews, which protocol includes providing false information to a suspect as a means of eliciting statements. Kavars explained that in this case, he had clothing that belonged to E.H. but that it did not have any DNA from Smith, contrary to what he suggested to Smith during the interview. Upon cross-examination, Kavars acknowledged that he obtained clothing from E.H. "[t]o lead the suspect to believe I had evidence I didn't have," and he agreed that the clothing was "basically used as a prop." Kavars confirmed that during his interview with Smith, he pulled those clothes out of an envelope and told Smith his DNA was on the clothing, and told him that on more than one occasion. He agreed it was a lie, but was a tactic he used. Kavars also "led [Smith] to believe that everything that happened with the victim at that residence was okay with her when she told me in the interview it wasn't."

On redirect, however, he confirmed that this was an acceptable method of interviewing and that further, he did not force Smith "in any way to admit that he had rubbed his penis on [E.H.'s] body." He further confirmed that he did not "force him in any way to admit that he had, in fact, pulled his pants down and touched the victim."

Kavars' testimony is supported by the recordings of the interview......

The tactics used by the police in this case, while deceptive, cannot be characterized as such coercion that it caused Smith's "will to be easily overborne." ... There is nothing in this record to suggest that the deception used by Kavars produced false or untrustworthy statements from Smith. The trial court did not err in admitting Smith's statements to Kavars during the interview or in admitting the apology letter written by Smith to E.H."

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Value of recording to protect a confession's admissibility

In Reed v. Woods (September 2013) the US District Court, E.D. Michigan upheld the lower court's decision that the defendant's confession was not coerced. From their opinion:

"Petitioner's second claim asserts that his statement to police violated his Fifth Amendment rights. Petitioner states that the police offered him leniency if he cooperated and that he was scared. Respondent argues that the state court adjudication of the claim was reasonable.

... Even so, "the ready ability to obtain uncoerced confessions is not an evil but an unmitigated good.... Admissions of guilt resulting from valid Miranda waivers are more than merely desirable; they are essential to society's compelling interest in finding, convicting, and punishing those who violate the law."..... The cases in which a defendant can make a colorable argument that a confession was compelled despite the fact that law enforcement authorities adhered to Miranda are rare....

The Michigan Court of Appeals rejected Petitioner's claim as follows:

Viewing the totality of the circumstances, the trial court did not clearly err in finding that defendant's statement was voluntary. The trial court had an opportunity to evaluate the testimony, view the video recording of the interview, and to evaluate the effect of the police officers' statements. Defendant was advised of his rights before he was questioned and voluntarily, knowingly and intelligently waived those rights, although he refused to sign a written waiver. [Citation omitted.] Although the officer made promises to defendant, most reflected a promise to make an effort to gain a more lenient outcome depending [on] the information defendant could provide. As noted, an officer told defendant that the police had no actual charging authority. Thus, the interrogating officer did not make any explicit promises to defendant with respect to actual criminal charges and sentencing. With regard to other factors, the interview was not prolonged. There was no evidence that defendant was threatened or abused, or that defendant was intoxicated under the influence of drugs, deprived of food or drink, or sleep deprived. Although defendant claims that he was "scared", there was no evidence that his psychological state was altered by fear to a degree that he was unaware or not operating of his own free will. Further, defendant was 33 years old, had a GED, and could read and write, he also had previous experience with the police and the criminal processes.

This decision did not involve an unreasonable application of clearly established Supreme Court law. The record reasonably supports the state court's conclusion that the interrogating officers did not coerce Petitioner into making his statement. While Petitioner indicated that he was scared, and that the police told him that the value of any cooperation might work to his benefit, such facts did not compel the state court to find his statements to be involuntary. To the contrary, the record supports the conclusion that Petitioner voluntarily spoke with police in an effort to gain favorable treatment. The fact that Petitioner did not receive the benefit he was hoping for does not mean that the representations made by the police were illusory or that his statements were involuntary. Petitioner is therefore not entitled to habeas relief based on this claim."

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Telling a suspect he failed a polygraph test does not render the confession inadmissible

In People v. Hughes (December 2013) the Supreme Court, Appellate Division, New York upheld the defendant's confession and rejected his claim that he gave the statement involuntarily.

"Defendant appeals from a judgment convicting him upon a jury verdict of one count each of attempted criminal sexual act in the first degree... and course of sexual conduct against a child in the second degree (S 130.80[1][b] ), and three counts of sexual abuse in the first degree (S 130.65[3] ). Defendant contends that County Court erred in refusing to suppress his statement to the police on the ground that he gave the statement involuntarily. We reject that contention. A statement "is 'involuntarily made' when it is obtained by [the police] by means of any promise or statement of fact which creates a substantial risk that the defendant might falsely incriminate himself" ... "To determine voluntariness, courts review all of the surrounding circumstances to see whether the defendant's will has been overborne" ...

Here, the evidence at the Huntley hearing, including the videotaped interrogations, establishes that defendant's statement was voluntarily made and that coercive police activity did not occur.... The fact that defendant was told that he failed a polygraph examination did not render the statement involuntary.... Defendant's claim that he was under duress and confused because of an illness is not supported by the evidence at the Huntley hearing."

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"Small" interrogation room (10 x 10) was not coercive; suggesting the juvenile victim initiated the sexual contact was not coercive

In Halcomb v. State (January 2014) the Court of Appeals of Indiana upheld the lower court's decision that the defendant's confession was voluntarily made.

"Next, Halcomb argues that his statements on both November 9th and February 2nd were involuntary under both the United States Constitution and the Indiana Constitution. "A confession is voluntary if, in light of the totality of the circumstances, the confession is the product of a rational intellect and not the result of physical abuse, psychological intimidation, or deceptive interrogation tactics that have overcome the defendant's free will." .... "The critical inquiry is whether the defendant's statements were induced by violence, threats, promises, or other improper influence." .... In evaluating a claim that a statement was not given voluntarily, the trial court is to consider the totality of the circumstances, including: "the crucial element of police coercion, the length of the interrogation, its location, its continuity, the defendant's maturity, education, physical condition, and mental health."

With regard to the November 9th statement, Halcomb again argues that the small room and the vigorous interrogation overcame his free will. A ten-foot by ten-foot room is not particularly small, and the fact that the interview was conducted in that room is clearly not sufficient to make his confession involuntary. Also, there is no indication that the interview involved coercion, and the interview only lasted for one hour. The trial court properly admitted Halcomb's November 9th statements to Detective Potts under both the United States Constitution and the Indiana Constitution.

As for the February 2nd statement, Halcomb argues that he did not confess until after four hours of interrogation and that he was misled into admitting that C.C. initiated the contact. Halcomb voluntarily agreed to undergo a polygraph examination, and after finishing the examination, Detective Potts asked to speak to him. Halcomb voluntarily talked to Detective Potts for approximately an hour. In talking to Halcomb, Detective Potts gave the impression that there was a difference between Halcomb forcing C.C. to touch his penis and C.C. voluntarily doing so. Police deception does not automatically render a confession inadmissible.... Our supreme court has held that police deception during an interview is only one factor to consider in the totality of the circumstances. Id. "[S]ubterfuge, trickery, and deception can be acceptable interrogation tactics." ... "Various interrogation techniques--'good cop, bad cop,' providing a morally acceptable answer, blaming the victim, and bargaining--do not necessarily create an involuntary statement." ... Detective Potts did not tell Halcomb that C.C. voluntarily touching his penis was not a crime. Rather, he offered Halcomb various explanations as to how the events could have occurred and implied that the use of force would be worse. This interrogation technique did not necessarily create an involuntary statement.

Under the totality of the circumstances, we conclude that Halcomb's confession was voluntary. Halcomb had the opportunity to leave the State Police Post after the polygraph interview. Instead, he said that he wanted to talk with Detective Potts. Halcomb, a former military police officer, should have been aware that his conduct with an eight-year-old child was a criminal offense regardless of whether C.C. was forced. There is no evidence of coercion, and the confession was admissible under the United States Constitution.

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Lengthy and persistent questioning does not render a confession inadmissible; accident versus intentional act was a "red herring" but not coercive

In Walker v. Davis (January 2014) the US District Court, E.D. California, upheld the lower courts finding that the defendant's confession was not coerced by the investigators.

"Petitioner argues that the criminal justice system naivete of her client, when juxtaposed with the skill and persistence the interrogators utilized in questioning over a three day period, made for a due process violation, i.e., an involuntary number of damaging admissions.

The undersigned has reviewed the statements in their entirety and the video of the statements as well.

Defendant talked to the police six times between October 22, 2007, and her arrest on October 24. She briefly spoke to Officer Cunningham at her home around 6:30 a.m. on October 22. She was interviewed by Officer Joseph moments later. Detective Henry Jason interviewed her around 10:24 a.m. Later that day, Detective Jason interviewed her at the police station for a few hours.

At Detective Jason's request, defendant returned to the police station around 3:13 p.m. on October 23, 2007, where she was interviewed for about five hours, and also participated in a polygraph examination conducted by Sacramento Police Detective Mark Tyndale. After the test, Detective Tyndale told defendant that he had trouble with her response regarding whether she intentionally did something to the child. Toward the end of the interview, defendant told Detective Tyndale that she had wrapped the child too tightly in a sheet and blanket.

Defendant's last interview took place on October 24, 2007. Detective Jason administered a Miranda [footnote citation omitted] warning, and defendant waived her rights. At the end of the interview, defendant stated she held her hand over the child's mouth until she stopped crying.

* * * *

Defendant's argument centers on representations from the detectives during the interviews on October 23 and 24. On October 23, Detective Tyndale informed defendant that she failed the polygraph examination, and he was having a hard time with whether she intentionally caused the child's death. He told her that people would forgive a mistake, but if someone made a mistake and was not honest about it, "people aren't as forgiving." He also said: "I don't think you're someone who would intentionally kill a child.... [P] ... [P] But if there was something that happened that was an accident, ... [P] ... [P] that's what you need to tell me. 'Cause otherwise the detective[']s gonna think you did do something on purpose."

Later, Detective Tyndale told defendant he would like to design a polygraph test she could pass, and he would have to explain to Detective Jason why she did not pass the polygraph. Detective Tyndale repeatedly asked defendant if the child's death was an accident, and continued: "When you tell me what it was, that's how I'm gonna design the polygraph test.... [P] ... [P] Because if it's an accident, that's what people understand. Especially when you're sorry for it. When you don't tell the truth, people don't believe you're sorry."

Detective Tyndale continued this line of questioning, assuring defendant he believed the killing was accidental, and telling her: "if you tell me the truth, I promise you're gonna pass the test. If it was an accident, I can show that. But you gotta be honest with me about it." He repeatedly promised defendant that if she told the truth, he would develop a test she could pass. He also told defendant, "You know, what kind of person would kill a small child on purpose? Are you that kind of person?"

Detective Tyndale then told defendant he knew she was "worried" and "scared" as some day "12 people sitting in a jury" would be looking at her, wondering whether she did it on purpose or it was an accident. He reiterated that it would be important for him to "walk out of here and be able to go up to Detective Jason and say, she's telling me the truth? She did it, but she didn't do it on purpose. It was an accident." As the interview wound down, he told defendant she took on more children than she could handle, and "I can help you show that it was an accident." By the end of the interview, defendant admitted she accidentally killed the child.

The following day, Detective Jason asked defendant if she had put her hand on the child's mouth to stop her from breathing. Defendant said "No," and Detective Jason replied that defendant had come a long way since the previous interview, and "you know, getting this off your chest. You got to be feeling better about that ."

Detective Jason told defendant he understood that defendant knew how to take care of a child. Detective Jason told defendant she "had to have done something." He reiterated several times that he thought it was an accident. Later, Detective Jason asked defendant if she put her hand over the child's mouth. After she gave an inaudible response, Detective Jason told defendant she was not being honest with him, and she would feel better if she told the truth. After equivocating on whether she had put her hand over the child's mouth, defendant admitted doing so, and stated that she kept her hand over the child's mouth until she stopped crying.

The Court of Appeal opinion, accurate as it is, nevertheless does not reflect the persistency of the questioning. The first two days of the interviews by Detective Jason were plodding, polite and persistent. Petitioner was asked again and again to describe the circumstances which led to the infant's death. The tireless questioning led to petitioner being caught in inconsistencies/absurdities, e.g., she administered CPR at the time when she found the infant dead in the middle of the night, and later, after she "panicked," several hours later, when she repeated CPR on a known lifeless body in the process of a conversation with a 911 dispatcher. After a polygraph was administered on October 23, Detective Tyndale attempted to force the issue. This interview on October 23, and that of detective Jason on October 24, 2007, was of a more aggressive character, although at all times, the interrogation was civil. In the latter interviews, if the police detectives told petitioner she was not telling the truth regarding the causation of the death once, they told her 100 times. The detectives were not going to accept any answer by petitioner that she did not take the actions which led to the death. Similarly, the numerous statements to petitioner stressing the different possible outcomes depending on whether "it was an accident" or "purposeful," was a red herring in that Cal.Penal Code 273ab only required purposeful actions of petitioner in causing injury, which resulted in death. The prosecution would not have to prove that petitioner intended the death of the infant by her actions. And, the police knew at the time that the injuries to the infant were incompatible with an accident. Many times petitioner was coaxed to be honest, and that the truth would make her feel better. She was in fact told on occasion that she was being honest, but the questioning continued with the clear indication that she was not. She was also confronted numerous times with the alleged falsity of her polygraph exam, often coupled with the "accident-purposeful" dichotomy, i.e., people would understand if the death was an accident.

Although there are surely superficial similarities with the type of questioning in Doody and that of petitioner's case, the interviews with petitioner herein were simply not of the same pressure as exhibited in Doody's case. First of all, the interviews in petitioner's case took place over three days; it was not compressed into one marathon session. Secondly, Doody's interrogation was a tag team of three detectives giving Doody no respite from the pressure to "be honest," "have honor," "let us help you" and the like. Petitioner's interrogation was conducted singly, albeit two detectives were involved. Most importantly, Detective Jason, who did the lion's share of the interrogation, was simply (persistently) getting petitioner to repeat her story during the first two days of questioning. Although the purpose of the repetition is clear, get petitioner caught in inconsistencies, the type of pressure exhibited in Doody, a relentless--we need you to answer NOW--was absent. Certainly, some of that pressure was brought to bear on petitioner, especially by Detective Tyndale after the polygraph, and by Detective Jason on the third day of questioning, but simply not to the extent as set forth above.

Moreover, petitioner's unsupported-in-degree by the record, "naivete" assertion is not the same as the "critical" factor of Doody's juvenile status, although the undersigned recognizes that Doody was almost an adult at the time of his interrogation. Many persons who are interrogated by the police are being questioned for the first time; these persons may not have developed a skill set of "admission avoidance." But something more than unfamiliarity with police techniques is necessary before persistent questioning will be found to have overborne the will of the person being questioned. It appears to the undersigned that petitioner believed she could talk her way out of her problems; many people make that mistake as the interrogators are politely weaving the web ever tighter on the person questioned. Good interrogation technique should not be confused with undue pressure. As recounted above, petitioner was permitted to go home after the first and second day of questioning to recover and reflect on the day's interrogation.

In sum, the Court of Appeals' determination that petitioner's confession was not involuntary cannot be termed unreasonable as that term is defined in AEDPA.

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