Legal Updates Winter 2015

Court did not allow David Mantell to testify as an expert on false confessions

In State v Collin (December 2014) the Appellate Court of Connecticut upheld the lower court's decision to refuse to allow David Mantell to testify as an expert of false confessions. From the Appellate Court's opinion:

"The defendant claims that the court abused its discretion by refusing to permit the defendant's expert, David Mantell, a licensed clinical psychologist, to testify on the topic of false confessions. The defendant argues that Mantell was qualified as an expert on the topic of false confessions and that such testimony was necessary to assist the jury in its assessment of the defendant's testimony regarding his confession. The state argues, inter alia, that the defendant failed to prove that Mantell had sufficient expertise on the topic of false confessions, and, accordingly, that the court properly declined to permit him to testify as an expert on the topic of false confessions. We agree with the state."

The Appellate Court went on to state: "During Mantell's testimony at the proffer hearing, which took place out of the presence of the jury, he stated that he had testified on the topic of false confessions in approximately fourteen cases. When questioned further, however, he explained that most of those cases dealt with false denials, rather than false confessions, or they were cases in which he consulted with counsel on the case, but did not testify. The court then asked Mantell what type of studies he had reviewed. Mantell explained that he had reviewed studies involving false confessions where the defendant, through DNA, later had been exonerated. He testified that "the researchers take a careful look at these cases and dissect the way in which [the accused had been] interrogated and also ... look at the personality characteristics of the people who made these false confessions." He also stated that the commonality in the research findings was the tactics that were employed by the police during interrogations and the witness' reactions to those tactics. Mantell also stated that there was a second line of research with which he was familiar and that such research involved doing a personality evaluation of the defendants who later were exonerated. He explained that the common personality traits of these individuals included suggestibility, mental health problems, lower intelligence, and concentrated personal adversity that makes them less resilient to external pressure. The court asked Mantell whether he had evaluated the defendant in this case, and Mantell stated that he had not evaluated the defendant. Upon questioning by the prosecutor, Mantell also conceded that he was unfamiliar with any kind of psychological examination involving the defendant, that he had never seen the result of a psychological examination involving the defendant, and that he had no idea what such an examination might reveal. Additionally, Mantell admitted that he had no idea regarding the defendant's suggestibility, eagerness to please, level of intelligence, or propensity for mental illness. He also had no knowledge of the police interview process in this case, or whether there was DNA present in this case.

Mantell also explained that he had concerns when he reviewed the file in this case because there was no description of the interrogation process that was used, and he, therefore, was unaware of what tactics were used. He also stated that there was nothing in the defendant's confession that would help him "to understand the demeanor of the [defendant], what was motivating the [defendant] to provide such a detailed and explicit account of punishable, criminal offenses within such a relatively short period of time within that setting." He further explained that he "didn't understand the context in which [the confession] was achieved, and [he] didn't understand the motivation of the defendant to convey that kind of information, apparently, in a first interview with a police officer, presumably knowing or having some general knowledge of what the legal consequences would be for doing that." Mantell also stated that he had not reviewed or witnessed the in-court testimony of the police in this case regarding the questioning of the defendant.

Following the hearing, the court issued both an oral ruling and a written memorandum of decision. The court found, inter alia, that the defendant had failed to prove that Mantell was qualified to give an expert opinion on the topic of false confessions, and that, "even if he were qualified, the testimony proposed [was] incomplete and not directly applicable or relevant ... to assist the jury in understanding the evidence or in determining whether .... the defendant's testimony was false."

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Defendant was not denied effective assistance due to trial counsel's failure to develop and present expert witness testimony concerning claimed involuntariness of his confession

In Lucas v Warden (November 2014) the US Court of Appeals, Eleventh Circuit found that the petitioner's counsel was not ineffective for failing to investigate and present evidence about the effect of intoxication on his memory when Lucas sought to suppress his videotaped confession. From the Court of Appeals opinion:

"Lucas's trial counsel moved to suppress the confession as being involuntary and unreliable for at least five reasons, including because Lucas simply repeated what the officers and Rhode had told him since his drug and alcohol consumption kept him from having any memory of the events... After reviewing the videotaped confession and hearing testimony from the interrogating officers, the trial court denied Lucas's motion to suppress. On direct appeal the Georgia Supreme Court affirmed, finding the confession to have been voluntarily made after Lucas waived his Miranda rights.

Lucas later argued to the habeas state trial court that trial counsel were ineffective because they failed to develop and present expert testimony from Dr. Anthony Stringer, a neuropsychologist, and Dr. Randall Tackett, a pharmacology expert, to support their claim that Lucas's intoxication on the day of the murders rendered his confession unreliable.

Dr. Stringer testified at an evidentiary hearing that he was hired by trial counsel in March 1999 to conduct a neuropsychological examination of Lucas and to evaluate Lucas's "susceptibility to suggestion from others and his memory and behavior." Stringer testified about Lucas's "horrific family circumstances," his "extensive drug abuse," and "the fact that he had ... a number of incidents where he had suffered blows to the head." Stringer said Lucas tested with an IQ of 110, at the upper end of the average range, but that he suffers from "left hemisphere brain dysfunction," which can be associated with "remember [ing] information in less detail." Stringer added that Lucas, due to this disorder, may have gaps in his memory and might "take information that someone has provided him ... as being accurate."

Dr. Tackett ... testified that Lucas, because of his blackouts, was susceptible to suggestibility, which meant that when Lucas could not recall a detail about the events of the day, he accepted an explanation suggested by someone else. Tackett opined that the combination of drugs and alcohol that Lucas consumed on the day of the murders "made it impossible for Mr. Lucas to understand events as they occurred, much less remember any details later."

The state habeas trial court denied relief on both the performance and prejudice prongs of Strickland. The court observed that Lucas "has never denied involvement in the case, and has never told anyone, in the past or present, that his confession is untrue." To the contrary, the state habeas trial court found that Lucas's statements to law enforcement and others showed he had a particularized memory of the crimes and of shooting Bryan Moss. Indeed, Lucas had "made statements to his Uncle Brad Lucas and Derrick Jackson prior to talking to police saying that he 'messed up real bad' and 'killed somebody,' and told 'Robbie Hunnicutt' on the afternoon*795 of the murders ... that 'he was killing those motherfuckers.' " The court concluded that, combined with the videotaped confession, the other confessions undermined Lucas's claim that police fed him information about the crime and also undermined his experts' opinions that Lucas was in a blackout and without any memory of the crimes. The state habeas trial court found Lucas's story was not likely to have been suggested by Rhode because Lucas viewed Rhode's videotaped statement just before saying "that's bullshit" and specifically recounting events that contradicted some of Rhode's version.

We hold that the Georgia Supreme Court had a reasonable basis for rejecting Lucas's claim because the petitioner failed to establish a reasonable probability that the result would have been different had the additional testimony been offered at the suppression hearing. The testimony that Lucas says should have been presented--suggesting the petitioner had no memory of the events of the murder due to drug use or brain damage--was directly refuted by a substantial body of evidence."

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Court finds expert testimony regarding false confession phenomenon was not admissible

In Commonwealth v Pugh (October 2014) the Superior Court of Pennsylvania found that "expert testimony regarding false confessions is impermissible as it provides no pedagogical purpose and interferes with the jury's exclusive duty to assess the credibility of witnesses." From their opinion the Superior Court stated the following:

"The Supreme Court's recent decision, Commonwealth v. Alicia, --- Pa. ----, 92 A.3d 753 (2014), held that expert testimony on the phenomenon of false confessions would impermissibly invade the jury's exclusive role as the sole arbiter of credibility. In Alicia, the defendant was accused of murder and other related charges. The police questioned the defendant and he eventually confessed to the murder. Defendant later moved to use a false confession expert, citing his own low intelligence, mental health issues, and that his written confession contained a number of hallmarks which indicated his confession was false. The expert proffered by the defendant claimed, during an a hearing on the admissibility of his testimony, that he would testify generally about police interrogation methods that can put an innocent suspect at risk and also about the specific ones used in defendant's case. The trial court held that the testimony was permissible as to the general aspects of police interrogation techniques, but prohibited the expert from providing any testimony as to the specific allegations in defendant's case. This Court, in a divided panel, affirmed the decision.

The Supreme Court of Pennsylvania, following the lead of the United States Court of Appeals for the Tenth Circuit in United States v. Benally, 541 F.3d 990 (10th Cir.2008), reversed. The Court found that "expert testimony such as the proposed testimony of [the defense expert] Dr. Leo constitutes an impermissible invasion of the jury's role as the exclusive arbiter of credibility." Alicia, 92 A.3d at 764. First, the Court noted that regardless of whether an expert opined on whether the confession was true or false, the effect would be the same: jurors would be persuaded to disregard the confession and credit the defense's testimony that it was a lie. Second, if the expert testimony were allowed, the Commonwealth would likely counter with its own rebuttal expert testimony, which would lead to befuddlement rather than serve to educate the jury.

Ultimately, the Pennsylvania Supreme Court found that "the matter of whether Appellee's confession is false is best left to the jury's common sense and life experience, after proper development of relevant issues related to, among other things, the particular circumstances surrounding the elicitation of his confession, using the traditional and time-honored techniques of cross-examination and argument."

Instantly, there is no dispositive factual or legal basis with which to distinguish Pugh's claim from that of the recent Supreme Court decision in Alicia. Accordingly, as we can find no distinguishable difference between the claim advanced by Pugh and the Supreme Court's decision in Alicia, we must conclude that Pugh's claim warrants no relief."

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Violation of Garrity rule nullifies admissibility of incriminating statement

In US v Goodpaster (December 2014) the US District Court, D. Oregon, ruled that "Goodpaster's motion to suppress is granted, based on his "penalty situation" argument under Garrity v. New Jersey, 385 U.S. 493 (1967), and its progeny." Eric Goodpastor was an employee of the US Postal Service who was suspected of stealing parcels containing prescription drugs mailed to veterans from the U.S. Department of Veteran Affairs. Goodpastor confessed that he had become addicted to his pain medication and, approximately a year and a half ago, had begun stealing packages from the mail that contained medications belonging to and intended for others. From the US District Court's opinion:

"In Garrity, a state employer questioning its employees informed them of their right to remain silent--and that if they exercised it, they would be fired.... Faced with the choice "either to forfeit their jobs or incriminate themselves," the employees confessed... The Court held that the state may not put its employees to such a choice and reversed their convictions....

The Garrity rule has since been generalized to any situation in which the government seeks to "impose substantial penalties because a witness elects to exercise his Fifth Amendment privilege." ... Thus, "loss of job, loss of state contracts, loss of future contracting privileges with the state, loss of political office, loss of the right to run for political office in the future, and revocation of probation all are 'penalties' that cannot be imposed on the exercise of the privilege."

In this case, Goodpaster was subject to a regulation, 39 C.F.R. S 230.3(a), requiring that he "cooperate with all audits, reviews, and investigations conducted by the Office of Inspector General." The same regulation provides that "failing to cooperate ... may be grounds for disciplinary or other legal action." He was also subject to a workplace policy that required him to "cooperate in any postal investigation, including Office of Inspector General investigations" and that provided for "appropriate disciplinary measures" should he not cooperate....

Where the state has created a penalty situation but wishes to elicit testimony for use in criminal proceedings, it has an easy and effective remedy: Retract the employment-related threat that created the penalty situation. The state need only assure the employee, before it questions him, that he will not be punished solely for asserting his Fifth Amendment privilege. This simple remedy, frequently styled a " Garrity warning" in mimicry of the Miranda warnings, has been recognized by both the executive branch and the federal courts. See Wray Memorandum at 466 ("[W]hen a federal employee is interviewed ... by an Office of Inspector General, the agents should provide the employee with an advice of rights form ... commonly referred to as the ' Garrity ' warning.")....

The Supreme Court has not yet had occasion to decide what constitutes an effective Garrity warning... But the government has several variations at its disposal. The U.S. Department of Justice offered the following model warning in an attachment to the Wray Memorandum:

*This is a voluntary interview. Accordingly, you do not have to answer questions. No disciplinary action will be taken against you solely for refusing to answer questions.

Wray Memorandum at 468. The U.S. Department of Veterans Affairs OIG, to which SA Epperson belongs, provides the following, somewhat narrower warning:
If you refuse to answer the questions posed to you on the grounds that the answers may tend to incriminate you, you cannot be removed (fired) solely for remaining silent; however, your silence can be considered in an administrative proceeding for any evidentiary value that is warranted by the facts surrounding your case.

To summarize, when a government employee is questioned by his employer, the Constitution does not require the government affirmatively to announce "[w]hether [it] is wearing one hat or the other (or both)." ... But here, by threatening to punish Goodpaster's silence (and not retracting that threat), the Government donned the hat of employer. The Constitution holds it to that choice. Goodpaster's statements are suppressed."

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The importance of accurate translations by the interpreter - erroneously suggesting a lesser punishment if defendant confessed

In State v. Fernandez-Torres (October 2014) the Court of Appeals of Kansas upheld the lower court's decision to suppress the incriminating statements made by the defendant. From the Court of Appeals' opinion:

"In September 2010, the Douglas County District Attorney charged Fernandez with aggravated indecent liberties with a child for the lewd touching of A.L.G., who was 7 years old at the time.

During the investigation of the offense, Fernandez accompanied Lawrence police officer Anthony Brixius to the law enforcement center to be questioned about his interaction with A.L.G.

At the suppression hearing, Brixius testified that he and Fernandez talked in English on the ride to the law enforcement center. Brixius speaks very little Spanish. Another police officer accompanied them. No one spoke in Spanish during the brief trip. Once at the law enforcement center, Fernandez was placed in an interrogation room. Brixius testified that he had concerns about Fernandez' fluency in English and sought out a Spanish-speaking translator to participate in the interrogation. Brixius pressed Oscar Marino, a bilingual probation officer, into service. Marino was born in Venezuela and grew up speaking Spanish; he came to the United States in his teens about 30 years ago and has become fluent in English. Marino has no training in real-time translation and has never been certified as a Spanish-English translator. At the suppression hearing, Marino testified that he has translated for police officers conducting interviews or interrogations "[a] handful" of times. The interrogation was videotaped.

"In weighing Fernandez' age, intellect, and background, the district court relied, in part, on the clinical assessment of Dr. Barnett. Dr. Barnett's expert opinion that Fernandez functioned intellectually in the "low average" range and likely had some form of learning disability was unrebutted. Dr. Barnett also testified Fernandez had difficulty readily understanding and responding to questions posed to him. Again, that clinical observation went unchallenged in the sense the State offered no countering expert. The intellectual limitations Dr. Barnett suggested at least square with Fernandez' abbreviated education and his partial literacy, especially in English. The district court found Fernandez' intellect played a part in rendering his statements involuntary.

The district court was particularly troubled by the last two enumerated factors: the fairness of the interrogation and Fernandez' fluency in English. We share that concern. In this case, the two factors are closely related, so we discuss them together.

Fluency in English typically comes into play when a suspect is literate in some other language but is interrogated in English... Illustrating the seamlessness of the generically labeled factors, fluency would also be implicated if a suspect knew only English but his or her mental incapacity substantially impaired his or her ability to communicate. That situation might also bear on mental condition and, possibly, intellect. This case presents a variant because Brixius sought out a translator, so the interrogation could be conducted in Spanish--Fernandez' primary language, although Fernandez understands some spoken English.

To be plain about it, Marino lacked the bilingual capacity and the training to function effectively as a translator in an extended interrogation about a sex crime against a child. The two experts agreed that Marino mistranslated both questions and answers and sometimes substantially paraphrased what was being said. The district court's expressed concern about whether Brixius and Fernandez were fully communicating in an effective way finds sufficient support in the record evidence.

The district court was particularly troubled by Marino's use of "negociar" in conveying Brixius' assertion that "we can deal with" the situation if Fernandez had touched A.L.G. inappropriately for just a second. Both experts considered the translation to be misleading and suggestive of an accommodation in which Brixius could handle or negotiate any offense if Fernandez admitted to briefly touching A.L.G.'s pubic area or vagina. As translated for Fernandez, the statement might be construed as a promise of lenient treatment or an outright deal, thereby affecting the truthfulness of any inculpatory admissions on the theory a suspect might falsely confess if he or she understood no charges or only minor charges would result.

The emphasis Marino imparted with his use of "negociar" may not have been what Brixius specifically wanted or intended. But the deviation was one of degree given Brixius' interrogation technique that combined false representations about supposedly incriminating evidence with suggestions that inaccurately tended to minimize the legal consequences of some unlawful behavior. The result of those techniques over the course of the interrogation combined with communications issues resulting from subpar translation and Fernandez' limited intellectual capacity caused the district court to find the resulting statements to be involuntary and, thus, constitutionally suspect. Fernandez' limited fluency in English ties into the fairness of the interrogation. So we turn to that factor.

In the face of Fernandez' denials that he inappropriately touched A.L.G. and his limited admission that he might have accidently brushed her pubic area in trying to get her back into bed, Brixius falsely stated skin cell evidence conclusively proved otherwise. There was no such evidence. Brixius, however, insisted the phantom scientific evidence meant Fernandez intentionally touched A.L.G.'s vagina. Brixius then repeatedly challenged Fernandez to offer some explanation for that conduct. Brixius suggested Fernandez wasn't a bad person and merely had a momentary lapse in judgment, perhaps because he was upset or had drunk too much or for some other reason, in contrast to being a degenerate regularly preying on children for sexual gratification. Brixius then told Fernandez if he had touched A.L.G. for a second, they could "deal with that"--the representation that Marino translated to "negociar." Later in the interrogation, Brixius again told Fernandez that it was "okay" because he didn't keep on touching A.L.G. Those representations falsely minimized the legal consequences of the action--brief, intentional physical contact with A.L.G.'s genitals actually would legally support a charge of aggravated indecent liberties with a child and a life sentence upon conviction.

Brixius' interrogation approach effectively informed Fernandez both that the police had irrefutable scientific evidence that he had touched A.L.G.'s vagina and that if he had done so only for a second his actions were "okay" and could be dealt with. The underlying message to Fernandez was this: We have overwhelming evidence against you, but if you tell us you did it just briefly, nothing much will happen to you. Brixius maneuvered Fernandez into a situation in which yielding to the suggestion would seem to carry a material benefit, though quite the reverse was true. An unwary or pliable subject--Fernandez, based on the district court's findings, fit that bill--could be induced to accede to the suggested version of events because it looked to be convenient, compliant, and advantageous. In that situation, a suspect may no longer be especially concerned about falsity of the statement. The interrogation strategy lures the subject in, snares him or her with representations about the strength of the evidence (that may or may not have any basis in fact), and then offers what appears to be a way out through admissions deliberately and incorrectly cast as significantly less legally and morally blameworthy than alternative explanations of the evidence.

In this case, looking at the whole of the circumstances, we conclude, as did the district court, that the inculpatory statements Fernandez made to Brixius were sufficiently tainted by the interrogation process and Fernandez' vulnerability to be something less than freely given."

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Defendant should have been advised on his rights before questioning in the pat-down room

In US v Carr (November 2014) the US District Court, E.D. New York, found that the defendant's incriminating statements made in the pat-down room should be suppressed because he was not advised of his rights in a custodial situation. From the court's opinion:

"According to the facts alleged in the Complaint filed on July 5, 2013, on or about July 3, 2013, Defendant Carr arrived at John F. Kennedy International Airport in Queens, New York ("JFK Airport") from Georgetown, Guyana... Upon his arrival at customs, Carr was selected for a United States Customs and Border Protection ("CBP") examination... He presented one large purple suitcase and one smaller purple suitcase to CBP and answered standard CBP examination questions: he stated that he owned both suitcases, that he had packed the bags himself, and that he owned all of the contents therein.

During the luggage inspection, CBP officers noted that the bottom of the smaller suitcase was "unusually thick and heavy." ... An X-Ray of both suitcases revealed a mass on the bottom of each suitcase... CBP officers then escorted Carr to a private examination area, where the luggage was probed to reveal a white powdery substance, which field-tested positive for cocaine... Carr was placed under arrest.

Carr was physically removed from the public screening area and escorted by four armed officers to a separate, private pat-down room. He was directed to sit on a bench with his back to the wall and three of the four officers who escorted him into the room surrounded him. While no handguns were drawn, and even assuming that Carr was not immediately handcuffed when he was brought into the pat-down room, the totality of the circumstances, including Carr's removal from the public area to the private pat-down room, the manner in which he was escorted by two officers, each with both hands on Carr, and the CB P-dominated atmosphere in the room, strongly suggest a degree of restraint associated with formal arrest.

In addition, the nature of the questions asked by the CBP officers support a finding that Carr was in custody at the time he was placed in the pat-down room... Carr was repeatedly asked where he obtained his bags, and with whom he was traveling. Carr was told there was a "lot of weight" for him to be traveling alone. By his own account, Carr was directly asked about the ownership of the drugs and whether he had smuggled drugs into the United States before, and Officer Finn conceded that it was his typical practice to ask such questions. While a reasonable individual may expect a brief detention at the border and some questions about his or her personal information and travel, a reasonable person in Carr's position would not see this encounter as attendant to a routine screening at an international border. A reasonable person in Carr's position, given the manner in which he was escorted to the pat-down room, the atmosphere in the room and the nature of the questioning, would likely believe that he was subject to restraints on his freedom of the degree associated with formal arrest, and thus in custody for the purposes of Miranda.

Under these circumstances, the First, Second, and Third Statements made in the pat-down room prior to arrest--including any statements made during that time which repeated substantially similar incriminating information in response to the officers' questioning--were the product of a custodial interrogation without adequate warnings as required by Miranda, and are therefore suppressed.

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Investigator's statement that it was time for the defendant to "come to Jesus" was not a coercive statement

In Singleton v State (November 2015) the Court of Appeals of Mississippi found that the investigators comment to the defendant that it was time to "come to Jesus" did not constitute a coercive statement. From the court decision:

"Singleton asserts that his confession resulted from pressure and intimidation from the investigators. Singleton testified that Investigators Ellis and Huddleston "play[ed] good cop and bad cop," which led to a feeling of intimidation. Singleton primarily contends, however, Investigator Ellis coerced Singleton into confessing when he made the remark that it was time for Singleton to "come to Jesus."

Singleton, a preacher for approximately fifty-four years, argues that Investigator Ellis took advantage of his religious beliefs by using Jesus to elicit a confession. The United States Supreme Court has held "coercive police activity is a necessary predicate to the finding that a confession is not 'voluntary' within the meaning of the Due Process Clause of the Fourteenth Amendment."

The Connelly Court further held "the Fifth Amendment privilege [against self-incrimination] is not concerned 'with moral and psychological pressures to confess emanating from sources other than official coercion.' In fact, the Supreme Court has found that the use of religious references does not automatically render a confession involuntary.

In this instance, Investigator Ellis told Singleton that it was "time to come to Jesus" after the investigators played the tape-recorded conversation between Singleton and Daniel, and Singleton continued to deny his involvement with Daniel. Investigator Ellis testified his use of the phrase was merely to get Singleton to tell the truth in light of the incriminating evidence.

The Mississippi Supreme Court held that "[a] mere exhortation to tell the truth is not an improper inducement that will result in an inadmissible confession." While Singleton stated he found the remark offensive, Investigator Ellis testified he did not use any threatening or intimidating language or tone that would constitute coercion. This inducement to tell the truth without more does not rise to the level of coercion. Thus, the religious reference did not render Singleton's statement involuntary."

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Court excludes the testimony of Dr. Jorey Krawczyn on false confession issues

In Brant v. State (December 2014) the Supreme Court of Nevada held that proffer of expert testimony on police interrogation techniques concerning defendant's allegedly false confession was insufficient to establish that testimony was relevant and reliable, and thus district court did not abuse its discretion in excluding testimony. From the Supreme Court's opinion:

"Brant did not move to suppress his confession as involuntary. Rather, his contention was, and is, that the latter part of his confession--the part where he admits killing Seaton, in addition to finding her body and burying it in his garage--is false. To support his false-confession theory, Brant designated an expert on police interrogation techniques, Dr. Jorey Krawczyn. The district court excluded Dr. Krawczyn's testimony on the grounds that it would not assist the jury in understanding the evidence or deciding a fact in issue The district court held a pretrial hearing on the admissibility of proposed expert witness testimony. Dr. Krawczyn did not testify at the hearing or prepare a written report. The district court "assume [d]" that Dr. Krawczyn "is qualified in methods of police interrogation" based on defense counsel's representation that Dr. Krawczyn is a clinical psychologist who "provides lectures on interview and interrogation techniques utilizing body language and neuro-linguistic dynamics" and was being offered as an expert on police interrogation techniques... Counsel further represented that Dr. Krawczyn had reviewed the audio-and videotapes of Brant's "interviews and interrogations," including "at the house, the ... formalized interrogation [at the police station] and also all the smoke breaks in between." "Based upon what he saw in the review," Dr, Krawczyn "determined detective Gallop is using some standardized questions that 02/22/2020 back to a 1956 polygraph operator's course and eventually progressed in the Criminal Division"; Gallop may have "used the Reid techniques," but without asking Gallop, the defense "cannot with 100 percent certainty say that is the technique." There is "a question [of] is this a good technique to use with a brain injury" that "goes to susceptibility and reliability of the statement." Summing up, defense counsel stated that,

... there are identified factors or ... interrelated components that are part of the concept of interrogative susceptibility that just better form the social interaction between the interrogat[or and] the interviewee. This is what we need the expert to go through, the factors and explain how these factors came together.

The phenomenon of false confessions is a growing area of psychological and social science," and we "do not foreclose the possibility that under appropriate circumstances expert testimony [in this arena] could be relevant to a defendant's case and helpful to a jury." For this court to find an abuse of discretion in the exclusion of such testimony, though, there needed to be a specific proffer, supported by scientific or other proof, citing particularized facts, establishing that the testimony is relevant and reliable. The proffer in this case does not provide us the information needed to undertake that analysis.

This leaves the fact that, in interrogating Brant, Detective Gallop may have used the Reid technique (or a 1956 polygraph operator's technique) and the suggestion that a susceptible witness may make unreliable statements to establish the relevance and reliability of Dr. Krawcyzn's testimony. But with no evidence to establish a scientific or other recognized basis for challenging the interrogation techniques utilized in this case--which Dr. Krawczyn should have been able to identify if they were problematic, since he had complete audio--and videotapes of Brant's interview and interrogation--we have only Dr. Krawczyn's ipse dixit that the techniques possibly used may have influenced Brant's confession. This is not enough to establish an abuse of discretion in excluding such testimony.

Brant complains that he needed Dr. Krawczyn to establish that the phenomenon of false confessions exists. But he accomplished that through Detective Gallop, who acknowledged under cross-examination that false confessions can and do occur. And, as discussed above, the proffer with respect to Dr. Krawczyn does not establish what else Dr. Krawczyn might have said that would be of assistance to the jury."

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Use of a psychologically-oriented techniques during questioning is not inherently coercive; request to have his mother in the room was not an assertion of his right to remain silent

In State v Faucette (January 2015) the Superior Court of New Jersey, Appellate Division, upheld the lower court's decision that incriminating statements made by the defendant were voluntarily made. From the Superior Court's decision:

"Defendant argues his confession was "the product of intimidation, coercion and deception," as police capitalized on his fear of Clemons' retaliation against him or his mother, essentially forcing him to talk. He cites as a threat, Detective Craig's comment he would "drop [him] downstairs," meaning take him to the county jail where Clemons was being detained, "if he didn't start talking."

Having considered the events depicted on the DVD, we reject defendant's argument as lacking merit. Use of psychological tactics is not prohibited... "Unlike the use of physical coercion, ... use of a psychologically-oriented technique during questioning is not inherently coercive." Such ploys may "play a part in the suspect's decision to confess, but so long as that decision is a product of the suspect's own balancing of competing considerations, the confession is voluntary."

Here, no physical force or threats of same were made. The interview was not lengthy, lasting a little more than an hour. During the interrogation, there were no signs defendant was fatigued, confused or under the influence of intoxicating substances. Detective Craig's comments expressed frustration with defendant's changing story, but the remark "[w]e're not offering to do anything for you other than drop you downstairs in the middle of the population and you fend for yourself," merely stated police responsibility to effectuate the arrest warrant and place defendant in jail.

As to the police discussion of Clemons' past violence and affiliation with a gang, these facts were known to defendant, who admitted he had known Clemons for a long time. Police acknowledgement and discussion of these facts was not the " 'very substantial' psychological pressure[ ]" necessary for finding a defendant's will was overborne. Accordingly, we reject the notion Detective Craig's comments acted to "strip[ ] defendant of his capacity for self-determination and actually induce the incriminating statement...."

Defendant suggests requests to have his mother present in the room constituted equivocal assertions of his right to remain silent. We disagree.

Before Detective Craig informed him of the charges, defendant, who was age twenty-two, asked "[w]here's my mom," as he thought "my mom[ ] is gonna be here." Once informed of his arrest, defendant exclaimed, "I thought you were going to be bringing my mom in here." Subsequent to revealing his role in the robbery, defendant requested "[c]an my mom be in here while ... we do this, please?" At that point, Detective Craig replied "she's a little tied up right now," but later he would "take a break at a certain point [and he would] go find out where she's at [sic]...." Toward the end of the interview, defendant again asked for his mother.

The Court recently considered the analytical implications of requests by an adult to speak with someone other than an attorney, concluding that such requests do not imply or suggest that the individual desires to remain silent.

The Court explained, "[a]lthough the mere request by an adult to speak with a parent does not equate to an invocation of the right to remain silent, it does necessitate a review of the context in which the request was made." Often "it [is] not the request to speak with the parent, but that request in the context of other facts that [gives] rise to the conclusion that the right to silence had been invoked."
Here, defendant made an inquiry of his mother's whereabouts and repeated his belief she was to be present. Detective Craig told him he would check during a break and later advised defendant could see his mother before he was placed in jail. Nothing about defendant's requests reflect continuation of the conversation was contingent on his mother's presence. Rather, defendant's statements suggest a desire for support and cannot be construed as an assertion of his right to remain silent.

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Investigators failed to honor the defendant's invocation of his right to silence

In People v Flores (November 2014) the Appellate Court of Illinois, First District, Fifth Division, found that the "defendant's invocation of his right to remain silent was not scrupulously honored." From the court's opinion:

"At approximately 6:15 p.m. on July 14, 2007, defendant was again placed in an interrogation room at Area 4. One of the detectives, who also participated in defendant's initial interrogation, gave defendant his Miranda rights and questioned defendant as follows.

"DETECTIVE: You're here for the same shooting death of Victor Casillas, March 19th, 30th and Karlov, right? I got to tell you what your rights are. You understand you have the right to remain silent. Do you understand that? You got to say it out loud.


DETECTIVE: You understand that anything you say can and will be used against you in a court of law. You understand that?


DETECTIVE: Okay. You understand that you have the right to have an attorney with you when I talk to you? Do you understand that?


DETECTIVE: You understand that if you can't afford an attorney, the state will give you one free of charge. Do you understand that?


DETECTIVE: Okay. You've been here before, right?


DETECTIVE: Okay, Uh-Robert Macias has been in here. Robert has been saying some things about you--


DETECTIVE: --and we wanted to talk to you about them. You want to talk to us about that?

DEFENDANT: Not really. No.

DETECTIVE: Well, I mean, he's, you know, he's saying thing that aren't good about you. That's why we < inaudible > And basically he's saying that you were the one who produced the gun for that shooting.


32 The detective continued to ask questions, and when he asked defendant if he had anything to say about the gun, defendant shook his head indicating no. The detective followed that and asked, "you don't know something about the gun?" Defendant answered no. A few minutes later, the detective said that he wanted to hear what defendant has "to say about it." Defendant responded that he "ain't gonna say nothing about nothing."

The detectives left defendant alone for about 15 minutes and returned around 6:35 p.m. Shortly after they begin questioning defendant again, the following dialogue took place.

"DEFENDANT: When is the attorney going to come?

DETECTIVE: The [S]tate's [A]ttorney?


DETECTIVE: I got to call them. < Inaudible > talk to you.

DEFENDANT: You gotta call them again?


DEFENDANT: I thought you said that if I said if I wanted a lawyer, that--that, uh, I don't have to talk to you or something like that.

DETECTIVE: Well, that's one of your rights that I read, yeah. Is that what--I mean--

DEFENDANT: No, I'm saying that the other thing you said that--or when she told me < inaudible > keep me here for how many hours?

DETECTIVE: We can hold you for up to 48 hours.

DEFENDANT: And that's already another 48 hours already you < inaudible > huh?

DETECTIVE: It's the same as any time. It's not up to me. Last time you walked out of here a free man. We wanted to talk to you again, because, you know, he says you're the one who gets the gun."

The detectives then continued to question defendant, but defendant's responses were minimal. Eventually the detectives asked defendant if he wanted to see Macias's statement, and defendant stated that he did. The detectives and defendant then left the room to view the statement. They returned approximately 10 minutes later. Over the next 30 minutes, defendant participated in the interrogation and answered the detectives' questions. During this interrogation, defendant admitted to being the shooter on March 19, 2007. A few hours later, defendant spoke with an ASA and gave a videotaped statement in which he confessed to shooting the victims.

After viewing the videotaped interrogation and reviewing the transcript of the interrogation, we find that defendant invoked his right to remain silent and the detectives should have ceased all questioning after asking defendant if he wanted to talk to them and defendant responded, "Not really. No." This response was a clear and unequivocal response that defendant did not wish to waive his right to remain silent."

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Videotaped interrogation admissible even though investigator repeatedly accused defendant of lying

In Sheppard v State (November 2014) the Supreme Court of Florida upheld the admission of the videotaped interrogation of the defendant even though the investigator repeatedly accused the defendant of lying. From the Supreme Court's opinion:

"The redacted version of the videotaped statement that Sheppard gave to detectives after Sheppard was taken into custody was played for the jury. Sheppard contends that admission of the videotape was fundamental error because the jury heard Detective Bowers repeatedly accuse Sheppard of lying, and heard Bowers say the detectives knew he was either the shooter or the driver of the car from which Wimberly was shot. At the outset of the interview, Detective Bowers advised Sheppard that he does not care for lying and was not going to lie to Sheppard, but he expected the same from him. Bowers said, "You don't have to answer anything that you don't want to" but he expected the truth when Sheppard did answer.

Sheppard was asked if he was with the PYC gang and Sheppard denied it. Bowers then told Sheppard that he knew the answers to the questions he was asking and said, "All I'm here to find out, is Billy that cold that he needs to be locked up forever. Is everything that comes out of his mouth a lie? Because so far, you're batting a thousand.... All I'm trying to do, Billy, is find out are you a stone-cold killer and a liar or is there goodness in you." Sheppard then confirmed he had a PYC tattoo on his arm, and later said that "it" was in his "file," referring to a PYC notation.

Detective Bowers then confronted Sheppard with evidence of his presence at the Prime Stop convenience store and witness statements that Sheppard and Evans took Dorsette James's car at gunpoint, which Sheppard denied. Then Bowers said, "My main concern with you knowing is are you the trigger man, are you the driver? Because you're one or the other." Bowers then said, "[Y]ou may have been an unwilling participant. You may have been along for the ride. It may have been an accident, the fact that he got shot. It may have been the intention you were going to scare someone without the intent of killing them...." Sheppard continued to deny a carjacking, but then admitted to taking James's car for a "joyride." Detective Bowers told Sheppard, "Tell me the whole truth or none of the truth. We're trying to get on a (inaudible) where I can believe *1166 you because that's important to you, and you know that if I can't make (inaudible) you know you won't be able to convince 12 people." Sheppard ultimately admitted that he and Evans took the car when James was in the store and that Sheppard got in the driver's side of the car, although Sheppard said he later got out of the car at Acorn Street and Evans assumed the driver's seat. Sheppard never admitted anything concerning either of the murders. No objections were made to any portion of the redacted videotaped statement that was presented to the jury.

Sheppard contends that Bowers' statements in this interview constituted fundamental error because they accuse Sheppard of lying numerous times; tell him that if he cannot make the detectives believe him, he will never convince a jury; and say that the detectives know he is either the shooter or the driver. Sheppard contends these statements were so prejudicial that his right to a fair trial was violated. Error is fundamental if it "reach [es] down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error." The principle is applied only in rare cases where the interests of justice present a compelling demand for its application. Id. As we explain, we conclude that fundamental error did not occur in presentation of the edited videotape of Sheppard's interview with Detective Bowers.

Even though we find no fundamental error in admission of the videotape, we reiterate that a jury is inclined to give great weight to the statements made by law enforcement officers by virtue of their position... For this reason, great care should be taken by law enforcement and by prosecutors that such statements expressing belief in the defendant's guilt or belief that the defendant is lying generally not be placed before the jury. There is "increased danger of prejudice when the investigating officer is allowed to express his or her opinion about the defendant's guilt." ... With this caveat, we find no merit in Sheppard's claim of fundamental error in this issue.

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Suggesting to the defendant that the stabbing death was self-defense does not render the confession involuntary

In Fundaro v Curtin (January 2015) the US District Court, E.D. Michigan, denied the defendant's claim that his confession should have been found to be involuntary because the police suggested that the stabbing was self-defense. From the court's opinion:

"Petitioner's sole claim is that the statements he made to police after his arrest were involuntary and should have been suppressed because the interrogating officers misrepresented the consequences of admitting to the homicide. He claims that the officers told him that his conduct constituted self defense and therefore he did not have anything to worry about by cooperating. The trial court held an evidentiary hearing on the claim in which the officers in question and Petitioner testified. After the hearing, the trial court issued an opinion finding that Petitioner's confession was voluntary and a product of his own free will. The Michigan Court of Appeals upheld this decision. Respondent argues that the state court adjudication of Petitioner's claim reasonably applied the established Supreme Court standard, and therefore habeas relief is not warranted.

The test for the voluntariness of a statement to the police is whether the confession [is] the product of an essentially free and unconstrained choice by its maker[.] If it is, if [the suspect] has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.

Here, the evidence presented at the pretrial hearing indicted that Petitioner was informed of and waived his Miranda rights. Petitioner did not contest that he told the officers that he was willing to talk to them after he was read his rights, and he did not claim that he invoked his right to cut-off questioning during the interview. Petitioner was familiar with the criminal justice system and police questioning, having been involved with investigations from 2007-2009.

The officers participating in the interview denied that they made any threats or promises to Petitioner in exchange for his cooperation. Petitioner appeared to the officers to be coherent, understood what was happening, and answered questions logically. During the initial interview by Sergeants Troy and Wittebort, which lasted from 7:45 p.m. until 9:00 p.m., Petitioner denied any involvement at all in the death of the victim. The officers suggested that perhaps the victim attacked him because a hammer was found near his harm.

Mistretta told Petitioner that he did know anything about the facts of the homicide. He explained that he was telling Petitioner that he should cooperate because if he didn't, then the officers would not hear his side of the story and consider that Petitioner may have acted in self-defense. Petitioner then claimed that the shop owner came at him with a hammer so he stabbed him in self-defense.

The record supports that state court's decision that Petitioner's statement to the police was voluntary. "Ploys to mislead a suspect or lull him into a false sense of security that do not rise to the level of compulsion or coercion to speak are not within Miranda's concerns." So while it is true that a promise of leniency can render a confession coerced depending on the totality of the circumstances, ... here there was no promise of leniency made to Petitioner. The officers merely informed defendant that if what he did was self-defense then it was in his best interests to say so. While Petitioner testified that he understood the officers to be saying that he did nothing wrong, their testimony shows that they made no such representation. Rather, the statements were conditional: if Petitioner acted in self-defense, then he should explain his side of the story. The statements did not inform him that he in fact acted in self-defense. In light of this, Petitioner's choice to give his version of events was reasonably construed by the state courts to be the product of an essentially free and unconstrained choice by Petitioner. Schneckloth, supra. The police did not promise Petitioner that his story would exonerate him, only that the interview was his opportunity to share it. The state court decision that Petitioner's statement was voluntary therefore did not constitute an unreasonable application of the established Supreme Court standard.

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Employing deceptive practices to elicit a confession are not coercive

In US v Hunter (February 2015) the US District Court, N.D. Georgia, upheld the lower court's decision not to suppress the defendant's incriminating statements. From the court's opinion:

Hunter argues that the statements he made to the agents on May 16, 2013, were involuntary, and are therefore inadmissible, because: (1) he "believed that the agents came to his residence ... to help Anna, [ ] who was in danger," but he "did not understand that the agents were looking for child pornography,; (2) he did "not believe he had any choice" to make a statement "because of his prior experience with law enforcement," [; and (3) the agents never advised him that he had a right to counsel or that his statements could be used against him. Whether a statement was voluntarily given must be examined in light of the totality of the circumstances.... "This totality of the circumstances test directs the Court ultimately to determine whether a defendant's statement was the product of 'an essentially free and unconstrained choice.' ... "Among the factors the Court must consider are the defendant's intelligence, the length of his detention, the nature of the interrogation, the use of any physical force against him, or the use of any promises or inducements by police." Id. (citations omitted).

The focus of the voluntariness inquiry is whether the defendant was coerced by the government into making the statement, so "the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception." ... Thus, "[t]hose cases where courts have found confessions to be involuntary 'have contained a substantial element of coercive police conduct.' "Sufficiently coercive conduct normally involves subjecting the accused to an exhaustingly long interrogation, the application of physical force or the threat to do so, or the making of a promise that induces a confession."
Another "factor to consider among the totality of the circumstances in determining voluntariness' " is whether the police employ deceptive tactics to elicit a confession. However, " '[c]ourts 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.' Rather, courts have held that "trickery or deceit is only prohibited to the extent it deprives the suspect of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them." Thus, "[t]he kinds of deception that are generally deemed to trigger suppression are lies about a defendant's legal rights ( i.e ., 'you must answer our questions'), false promises ( i.e., 'whatever you say will be just between us'), or threats ( i.e., 'if you don't talk, you won't see your family for a very long time') ."

Additionally, the law in the Eleventh Circuit "is clear, that the police's use of a trick alone will not render a confession involuntary," unless there are "other aggravating circumstances" beyond the mere use of deceptive tactics, ..... Indeed, "[c]onfessions are not generally rendered inadmissible merely because they are obtained by fraud, deception, or trickery practiced upon the accused, provided the means employed are not calculated to procure an untrue statement and the confession is otherwise freely and voluntarily made."

Under the totality of the circumstances in this case, the Court concludes that Hunter's statements to the agents on May 16, 2013, were made voluntarily.

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13-year olds statement "Could I have an attorney? Because that's not me" Was an Unequivocal and Unambiguous Invocation of his Rights

In People v. Art T. (February 2015) the Court of Appeal, Second District, Division 7, California, ruled that a 13-year-old boy's statement--"Could I have an attorney? Because that's not me"--made during the course of a custodial interrogation after watching a video of a shooting was an unequivocal and unambiguous invocation of his rights. From the court's opinion:

"In this case, the detectives knew at the time of the interrogation that Art was 13 and an eighth grade student in middle school. While neither the juvenile court nor this court has had the benefit of viewing the videotape for the purpose of considering the circumstances of Art's statements to the officers in considering the motion to suppress, we find that Art's age of 13 and middle school level of education, combined with his repeated requests for his mother, would have made his lack of maturity and sophistication objectively apparent to a reasonable officer. In this context, Art's statement after viewing the video of the shooting, "Could I have an attorney? Because that's not me," was an unequivocal request for an attorney."

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Preamble to the advisement of rights undermined the subsequent Miranda advisement

In People v Dunbar (October 2014) the Court of Appeals of New York held that a preamble to Miranda warnings undermined subsequently-communicated Miranda warnings to extent that defendants were not adequately and effectively advised of their choice against self-incrimination. From the court's opinion:

"The Assistant District Attorney described for Dunbar the charges he would be facing when he went to court, including the date, time and place of the crimes alleged. The DI then informed Dunbar that "in a few minutes I am going to read you your rights. After that, you will be given an opportunity to explain what you did and what happened at that date, time and place." She then delivered the preamble, advising Dunbar as follows:

"If you have an alibi, give me as much information as you can, including the names of any people you were with.

"If your version of what happened is different from what we've been told, this is your opportunity to tell us your story.

"If there is something you need us to investigate about this case you have to tell us now so we can look into it.

"Even if you have already spoken to someone else you do not have to talk to us.

"This will be your only opportunity to speak with us before you go to court on these charges."

The DI continued without a break, following a script, next informing Dunbar that "[t]his entire interview is being recorded with both video and sound"; and "I'm going to read you your rights now, and then you can decide if you want to speak with us, O.K.?" She then advised "You have the right to be arraigned without undue delay; that is, to be brought before a judge, to be advised of the charges against you, to have an attorney assigned to or appointed for you, and to have the question of bail decided by the court"; gave the Miranda warnings; and, finally, asked "Now that I have advised you of your rights, are you willing to answer questions?" Dunbar indicated his understanding of each warning as it was given, and his willingness to continue the interview.

The Appellate Division unanimously reversed, concluding that the preamble "add[ed] information and suggestion ... which prevent[ed] [the Miranda warnings] from effectively conveying to suspects their rights," creating a "muddled and ambiguous" message... In this regard, the court rejected the argument, advanced by the People, that the effect of the preamble had to be assessed on a case-by-case basis, taking into account the individual experience and circumstances of each suspect. In the Appellate Division's view, such case-by-case determination, while relevant to the voluntariness of a waiver, was irrelevant to the question of whether Miranda warnings were properly administered in the first place... The court further determined that the error in admitting the videotaped statement was not harmless beyond a reasonable doubt in light of the facts and circumstances of the case, and so ordered a new trial."

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