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Legal Updates Winter 2016



California Supreme Court upholds rejection of Dr. Richard Leo testimony

In People v. Peoples (February 2016) the California Supreme Court upheld the lower court's opinion to reject the testimony of Dr. Richard Leo. At the suppression hearing before the lower court, Dr. Richard Leo, a professor in the Department of Criminology at University of California, Irvine, testified about the tactics used by police in securing defendant's confession. He opined that the detectives used coercive techniques to undermine defendant's free will.... "Specifically, Dr. Leo characterized the police's threats to involve defendant's wife and stepson in the interrogation as "classic" and "high-end" coercive techniques. Dr. Leo acknowledged that as a social scientist, he may define "coercion" differently than the law does."

In their analysis, the Supreme Court stated that, "Defendant argues that his statement to police after his arrest was the product of coercion and thus the trial court should have excluded it and any fruits of the allegedly tainted statement. But defendant's contentions that police detectives negotiated with him by offering "inducements" for his confession and that they threated to accuse his wife of the crimes are belied by the record. The detectives asked defendant questions designed to build rapport but never offered him leniency for his confession and never threatened a harsher penalty if he remained silent. Further, the detectives made clear to defendant they had no influence over how he would be treated in prison or in court. In addition, police detectives told defendant that his wife had implicated him in the crimes and that they would have to "drag" her further into the case if he did not confess. The detectives did not suggest that they would charge his wife with a crime.

It is true that the duration of the interrogation was substantial, and at points defendant showed some signs of fatigue. These factors weigh against the admission of the statement. However, other factors weigh against a finding that the statement was involuntary. Defendant was given numerous breaks, drinks, and food, and he was offered the chance to speak with a lawyer numerous times. He was also given the opportunity to speak with his wife, which he declined. We have previously found that a similarly lengthy interrogation did not amount to coercion under the "totality of the circumstances" where, as here, the defendant was provided with food, drinks, and breaks upon request... On the whole, and on our independent review of the videotape recording of the confession, we conclude that the prosecution met its burden of establishing by a preponderance of the evidence that defendant's statement was not coerced."

Click here for the complete decision.

The value of videotaping the interrogation in disputing intoxication claim

In US v. Wigginton (October 2015) the US District Court, E.D. Kentucky, upheld the lower court's rejection of the defendant's claim that he was too intoxicated to make reasonable decisions about what he was saying. From the court's opinion:

Defendant next argues that his confession was involuntary because he was intoxicated at the time of the interview... Defendant asserts that law enforcement "should have known that [Defendant] might have been under the influence at the time of his arrest and subsequent interview." ... According to Defendant, officers discovered various pill bottles containing medications and a nearly empty tequila bottle, and were informed that Defendant "went out" the night before... Further, he states that, because he "was sufficiently intoxicated such that his 'capacity for self-determination [was] critically impaired,' all his statements to law enforcement both before and after he received Miranda warnings must be suppressed."

Defendant alleges that law enforcement "should have known" that he was intoxicated at the time of his confession resulting in coercive conduct. At the evidentiary hearing, Special Agent Burke testified that Defendant seemed "coherent, clear" and Defendant conceded that "I look at the video and I look coherent[.]"... Further, the Court has reviewed the video of the interview and the objective circumstances support those descriptions. Throughout the interview Defendant remained upright, coherent, and demonstrated no other physical manifestations of intoxication. His speech was not slurred, and he engaged in meaningful conversation with the officers. His answers to law enforcement's questions were appropriate, and were focused on the task at hand. Moreover, his discussions with the officers indicates he was fully aware of the seriousness of the situation at hand and had detailed knowledge of the criminal justice system.... Moreover, at no time did Defendant inform officers of his alleged intoxication.
Based on this record, there were no circumstances from which law enforcement did know, or should have known, of Defendant's alleged intoxication. As such, there is no evidence of any form of coercion on behalf of law enforcement. Therefore, Defendant's confession was voluntary within the meaning of the Due Process clause.

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Confession voluntariness: ambiguous invocation of right to remain silent and rejection of claim of coercive police tactics; rejection of exhaustion claims

In State v. Perdomo-Paz (October 2015) [Missouri Court of Appeals, Western District] the defendant contended on appeal that he invoked his right to remain silent by referencing, in isolation, his statement that he did "not for real, man, no,but..." want to answer questions about a homicide. He argues that this statement required Detective Ray to immediately cease her interrogation. But our Missouri Supreme Court has stated that it does "not read Miranda searching for out-of-context sentences that support a preferred outcome." ... "Instead, courts must look to the full context of a particular statement in order to determine whether a suspect invoked his rights or not."

From the courts opinion: "At the beginning of the interrogation, Detective Allen read Perdomo-Paz his Miranda rights. Perdomo-Paz signed a Miranda waiver and began talking to Detectives Ray and Allen. Detective Ray asked basic informational questions. She then told Perdomo-Paz that she and Detective Allen were conducting a homicide investigation:

Det. Ray: Well, the reason we are talking to you, we're, uh, conducting an investigation, it's a homicide investigation. Okay, so, I just want to ask you a few questions about that. You cool with that?
Perdomo-Paz: What is, I mean [unintelligible], I mean, I don't know that ... [several seconds of silence]
Det. Ray: You fine with that, just talking about a homicide. Is that, is that....
Perdomo-Paz: I mean not, not for real, man, no, but....
Det. Ray: Why not?
Perdomo-Paz: I mean because when Kansas tried to talk to me about a homicide, you know, ... sometimes I couldn't even sleep ... that I know who killed somebody, [parts unintelligible]
Det. Ray: Okay, well, these are going to be easy questions, okay? Is that, is that fine? You okay with answering some easy questions? [several seconds of silence when Perdomo-Paz paused and then nodded his head affirmatively]
Detective Ray then began questioning him. Throughout the interrogation, Perdomo-Paz's story remained consistent: he went to a party on Noland Road in Independence at 9:30; "Carlos" drove him home; he was home by 1:00 a.m.; he stayed home the rest of the evening and did not go to any other parties that night.
Perdomo-Paz's response, "not for real, man, no, but ..." to Detective Ray's question whether he was "fine" with talking about a homicide was not a clear and unequivocal assertion of the right to remain silent. As we have stated under a similar fact pattern:
[A suspect's] use of the conjunction "but" is an equivocation, which suggests that he was experiencing an internal conflict: while he did not want to talk about what had happened, other factors compelled him to do so."

The court went on to state: "Considering the totality of the circumstances, Perdomo-Paz's statement was not coerced. First, Perdomo-Paz was advised of his Miranda rights and signed a waiver, indicating that he understood them. Second, Perdomo-Paz claims that his statement was coerced because when he asked for water because his throat was dry and when he asked for a bathroom break, the detectives did not immediately give him water or allow him to use the restroom. However, shortly thereafter, the detectives gave him water and a bathroom break when he asked a second time. Third, the length of Perdomo-Paz's interrogation-three hours with a break -was not coercive. Missouri courts have held that continuous questioning for four hours is not coercive.... Fourth, while Perdomo-Paz told the detectives during the interrogation that he was tired and at times laid his head on his folded arms on the table, he did not demonstrate that he was so tired that he was unable to resist the questioning. A statement is not involuntary due to a defendant's tiredness when the interrogation is conducted at a reasonable time and the length of the interrogation is reasonable.... Additionally, the video recorded interrogation (which has been viewed by this Court) contradicts Perdomo-Paz's claims of exhaustion by showing he was sufficiently alert and energetic to actively participate in exchanges with the detectives. Fifth, Perdomo-Paz claims that Detective Ray made sporadic statements to him that were "aggressive and demeaning." The Missouri Supreme Court has held that tactics such as "yelling, 'getting in his face,' and misleading" a suspect about whether his accomplice was making a statement implicating him were not impermissibly coercive where the detectives did not touch the defendant or threaten him with any physical harm.... We conclude that none of the factors identified by Perdomo-Paz establish that he was deprived of his free choice to admit, deny, or refuse to answer the detectives' questions or that his will was overborne when he made the statement.'

Click here for the complete decision.

Court upholds suppression of incriminating statements because Detective read Miranda rights in a "garbled' manner

In State v. Herring (June 2012) the New Mexico Supreme Court upheld the lower court's decision to suppress the defendant's incriminating statements because the Miranda rights "were read so rapidly as to be garbled to such an extent that [Defendant] was not advised that she had the right to refuse to talk to [Detective] at any time and to stop talking at any time during the interrogation." From the court's opinion:

On the night of the incident, Detective interviewed Defendant in a standard interview room at the Hobbs police station. Defendant waited alone in the interrogation room for about thirty-eight minutes before Detective entered. When Detective entered the room, he introduced himself, asked Defendant her name, and informed her that she was not under arrest. Detective then told Defendant that he needed to read Defendant statements from a card before asking her some questions. Defendant asked, "My Miranda rights?" Detective said "uh-huh" and told her she had probably seen Miranda rights given on television. Defendant responded, "Yeah."

Detective proceeded to read Defendant her Miranda rights from the Miranda warning card he kept in his pocket. At the end of the recitation, he asked Defendant if she understood "that." Defendant said, "I understand." Defendant then talked to Detective about the incident for almost five hours. During the interview, Defendant admitted that prior to her son's death, she had slapped him twice and punched him in the head with a closed fist.

The State charged Defendant with "knowingly, intentionally, and without justification, tortur[ing], cruelly confin[ing] or cruelly punish[ing] a child under 12 years of age, resulting in the death of [the child], contrary to Sections 30-6-1D(2), F, NMSA 1978." Julian Herring (Child), was Defendant's three-year-old son.

Before trial Defendant filed a motion to suppress her statement from the night of the incident, claiming that she had not knowingly and voluntarily waived her right to remain silent during the interview. Defendant claimed that the Detective "read the warnings to [her] from a card so quickly as to be almost unintelligible (entire reading approximately 17 seconds) and totally garbled the last advice to [her] that 'you do not have to talk to me, but if you do, you have the right to stop talking at any time.' "

In the Order Suppressing Statement, the district judge made the following findings:

[Detective] read the warning from a pocket sized card very rapidly, completing the reading in only a matter of seconds;
The stenographic court reporter who transcribed the DVD of the warning given to [Defendant] did not understand the language of the warnings on the DVD to match the language of the advice of rights card used by [Detective];
The [c]ourt had to listen to the DVD of the warning given to [Defendant] three times, the final time with the [c]ourt reading a copy [of Detective's] advice of rights card along with the DVD, before the actual warnings could be deciphered;
The warnings were read so rapidly as to be garbled to such an extent that [Defendant] was not advised that she had the right to refuse to talk to [Detective] at any time and to stop talking at any time during the interrogation.

As a result of these findings, the district judge concluded that Defendant "did not make a knowing, voluntary, and intelligent waiver of her rights pursuant to the requirements of the New Mexico Constitution and the United States Constitution, because she was not advised of such rights in a manner in which she could [have understood] them," and therefore ordered that Defendant's statement to Detective be suppressed.

Because we indulge in every presumption against waiver, we agree with the district judge that Detective read Defendant her rights in a garbled manner. It appears as if Detective merely wanted to get the "legal technicality" out of the way, rather than ensuring that Defendant understood her rights.... We affirm the district judge's order suppressing Defendant's statement and remand for further proceedings.

Click here for the complete decision.

Investigator's pre-Miranda statement rendered the subsequent waiver coerced and involuntary

In the case In re S.W., Appellant (September 2015) the District of Columbia Court of Appeals found that the investigator's pre-Miranda statement rendered the defendant's subsequent waiver coerced and involuntary. From the court's opinion:

Before issuing a Miranda warning, Detective Howland introduced himself and asked appellant (a fifteen-year-old juvenile) if he knew why he was under arrest. When appellant did not respond, Detective Howland explained:

"I know you know why you're up here, so I ain't gonna play the 'I don't know' crap, all right? I'm gonna give you an opportunity to give your version of what happened today, because ... I stand between you and the lions out there .... [W]e have a lot of things going on out there, and they're gonna try and say that you did it all. Okay? And I think what happened today was just a one-time thing. But before I came out here everybody said ... you did a whole bunch of stuff, but in order for us to have a conversation, I have to read you your rights and you have to waive your rights. If you answer no to any of the questions I ask you after I read you your rights, that's all, I mean, I can't have the interview, okay?" (Emphasis added).

Detective Howland read appellant his Miranda rights from a waiver card, and appellant, who had not spoken until this point, waived these rights verbally and in writing. Appellant's demeanor and tone remained calm as he subsequently confessed to entering Ms. Dougall's car with the intention of taking it.

Considering the totality of the circumstances, with particular emphasis on Detective Howland's references to unspecified charges that a juvenile appellant would face and his offer to stand between appellant and the "lions out there," we cannot conclude that Detective Howland's pre-Miranda remarks left appellant with a "real choice about giving an admissible statement." ... From appellant's perspective, Detective Howland's statements "ma[de] the situation appear hopeless" and thereby constituted coercion... Accordingly, while we conclude that appellant received an effective Miranda warning and that Detective Howland's pre-Miranda remarks did not render the warning ineffective per se, we also conclude that appellant did not voluntarily waive his Miranda rights.

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Military Appeals Court upholds decision to deny defendant's request for assistance of expert in coercive interrogation techniques

In US v. Cannon (June 2015) the US Army Court of Criminal Appeals upheld the military judge's decision to deny the defendant's request for assistance of expert in coercive law enforcement interrogation techniques. From the court's opinion:

Appellant was charged with the premeditated murder of MG. After the convening authority denied defense's request for expert assistance, appellant motioned the trial court to compel the expert assistance of a forensic psychologist--a purported expert in the study of coercive interrogations. The psychologist did not testify during the motion hearing. Instead, appellant provided the curriculum vitae of the psychologist and outlined why the assistant was needed and how he would be used. In support of the motion, appellant signed an affidavit disavowing his confession. Also, prior to trial, a Rule for Courts-Martial [hereinafter R.C.M.] 706 board diagnosed appellant with "Bereavement" under the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition. After both written and oral submissions, the military judge denied the defense's motion to compel the "false confession" expert consultant. Appellant now argues the military judge erred in denying his motion for expert assistance.

Here,...we find that the defense has failed to meet its evidentiary burden in demonstrating need. While the defense has offered some suggestions that appellant's confession may have been false (including appellant's self-serving affidavit disavowing his confession), defense counsel ultimately admitted the request for expert assistance was needed to help them determine the voluntariness and trustworthiness of the appellant's confession. Defense counsel does not provide evidence that appellant was susceptible to coercion, of low intelligence, or had any mental disorder or condition that might make it more likely that he confess falsely. While appellant was diagnosed with bereavement at his R.C.M. 706 board, defense counsel failed to link this assessment to the notion of false confession. In fact, defense counsel specifically stated it needs expert assistance to run a series of psychological tests to determine if appellant suffered from "intellectual deficits" impacting his ability to process information or if he was open to suggestibility without offering evidence to support this hypothesis.

Trial defense counsel also failed to proffer any information or professional studies related to false confession issues to demonstrate the link to this case and failed to present testimony of the expert on the record. Further, defense counsel justified their request for an expert assistant to review whether the interrogation method applied by the investigator was suggestive or coercive. We find defense's proffer does not demonstrate necessity and amounts to the "mere possibility of assistance" from a requested expert.
We agree with the ultimate conclusion that the defense motion for expert assistance should have been denied based on what the defense proffered.

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Intrinsic falsehoods do not create a coerced confession

In Marquez v. State (December 2015) the Supreme Court of Nevada found that the investigators did not coerce the defendant's incriminating statements and that intrinsic falsehoods do not cause a coerced confession. From the court's opinion:

The totality of the circumstances shows that the police did not coerce Marquez during the interrogation. First, the record shows that Marquez was 46 years old at the time of the interrogation, so the police did not take advantage of his youth. Second, nothing in the record reflects that Marquezs education or intellect is below normal, so the police did not take advantage of his lack of education or intelligence. Third, Marquez received Miranda warnings, he indicated that he understood the warnings, he did not invoke his right to remain silent or request an attorney, and he spoke to the detective. Thus, the police did not overbear Marquez by failing to advise him of his rights. Fourth, Marquez was not detained prior to the interrogation. Therefore, the police did not overcome Marquez's will through a lengthy detention. Fifth, the interrogation lasted only about an hour before Marquez confessed, so this was not a prolonged interrogation. Also, the detective only questioned Marquez on one occasion, so the questioning was not repeated. Lastly, the record does not indicate, and Marquez does not argue, that police mistreated him. Therefore, the police did not use physical coercion to overcome Marquez's will and secure a confession.

Coercion through police deception

This court has held that trial courts should also consider police deception in evaluating the voluntariness of a confession... Police deception does not automatically render a confession involuntary. Police subterfuge is permissible if "the methods used are not of a type reasonably likely to procure an untrue statement." ... This court has distinguished between intrinsic falsehoods and extrinsic falsehoods.... Intrinsic falsehoods imply the existence of implicating evidence and are more likely to secure a truthful confession from a defendant.... Extrinsic falsehoods involve issues that are collateral to the crime and are more likely to overbear a defendant's will and secure a false confession or "a confession regardless of guilt." (concluding that a confession was coerced when police threated a defendant that "state financial aid for her infant children would be cut off, and her children taken from her, if she did not 'cooperate" '). Deceptions that are likely to produce a false confession are not permissible and render a confession involuntary.

Marquez alleges that the detective impermissibly deceived him in order to secure a confession when the detective said that their conversation was confidential. If the detective had promised Marquez that their conversation would remain confidential, such deception would constitute an external falsehood and require suppression of his statement.... The deception would be an external falsehood because such a promise is collateral to the crime and could motivate a suspect to confess regardless of guilt. Here, the detective said that he was not telling everyone about the sexual assault allegations. His statement is ambiguous and we cannot conclude that it rises to a guarantee of confidentiality. Moreover, the detective provided Miranda warnings at the beginning of the interview and the detective also informed Marquez that anything he said could be used against him in a court of law. As such, Marquez could not expect immunity or confidentiality after confessing. Therefore, the police did not use an external falsehood to coerce Marquez's confession and the trial court did not err when it denied Marquez's motion to suppress his statements to police.

Click here for the complete decision.

Ambiguous invocation of right to remain silent; and, police officer's implication that defendant might see the outside again if he confessed to a robbery gone bad instead of a premeditated murder was not an inducement rendering his confession involuntary

In Williams v. State (December 2015) the Court of Appeals of Maryland held that the defendant's statement, "I don't want to say nothing. I don't know" was an ambiguous invocation of right remain silent, and that the police officer's implication that defendant might see the outside again if he confessed to a robbery gone bad instead of a premeditated murder was not an inducement rendering his confession involuntary. From the court's opinion:

After reviewing the DVD and the transcript, Judge Cathy H. Serrette of the Circuit Court for Prince George's County denied Williams's motion to suppress, after finding Williams's invocation of "I don't want to say nothing. I don't know" to be "ambiguous and equivocal."

This Court finds the I don't know, as the State indicated, to render what would have otherwise been a clear statement at which time the questions would have to stop an ambiguous and equivocal statement. Thereafter, Sergeant McDonald says, but you don't have to say nothing.

Mr. Williams again says, yeah. Then Sergeant McDonald again says, you don't have to say nothing. That, you know, that's your right. And they continue to talk about it, and again, in more or less a lay manner after which Mr. Williams says, hold on, I'd like to know what's going on. So if you all got to read me my rights, then go ahead. Where after, the Advice of Rights were presented to the Defendant.

Detective Harris went over the Advice of Rights with the Defendant. He asked at this point, would you like to make a statement or would you like to talk about why we are here without a lawyer, and the defendant nodded his head yes. He went on to say, have you been promised anything, have you been offered anything, any kind of reward or benefit or have you been threatened in any way in order to get you to make a statement, have I threatened you, has he threatened you, and Mr. Williams, the Defendant shook his head no. The Advice of Rights went on.

In observing the DVD, one notes that Mr. Williams did not just take the form and sign it as one often does when one gets a contract, but rather actually took his time and read over the Advice of Rights which he did then sign. Accordingly, this Court does not find the claim, vis-a-vis the Miranda Rights, to be a valid claim and finds the State has met its burden as regards to that claim.

The second issue is the issue of whether or not the actual confessions were coerced or whether they were truly, voluntarily and intelligently made. A review of the DVD indicated that the interrogation was certainly not a long prolonged interrogation. The Defendant was not cuffed. There was no allegations of any physical coercion, and the interaction between the Defendant, Sergeant McDonald and Detective Harris was indeed cordial. To be sure, the detectives distinguished premeditated murder and a robbery gone bad. However, Defendant's refusal to acknowledge on the stand that the gone bad part of the robbery gone bad was a shooting of the victim flies in the face of the DVD and the transcript and is simply not credible.

The officers in this matter clearly employed trickery regarding the DNA and fingerprinting, yet such trickery is permissible. The question is whether the Defendant's statements were coerced or compelled or whether they were freely, voluntarily made.
The Court agrees with the State that the Defendant was well aware that not only did he have an option not to speak, but that he had repeatedly been advised that he could stop speaking at any time even if he had started to speak. The Court further finds that the Defendant's statements during the interrogation, ... "no matter what you all find out, they're going to smoke my boots anyway," and "I mean, am I ever going to see the street again, do you all know?" indicate that he did not have the misunderstanding that he now alleges.

Considering the totality of the circumstances, this Court does not find that the Defendant's decision to give a statement was the product of physical or psychological coercion, nor that the officer's conduct in this case overbore his will to resist or otherwise brought about a statement not freely self-determined by the Defendant. Accordingly, the Court finds that the State met its burden of proof, and the motion to suppress will be denied.

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Expert should have been allowed to testify on the factors influencing the reliability of the defendant's confession

In US v. West (December 2015) the US Court of Appeals, Seventh Circuit ruled that the erroneous exclusion of expert testimony on the various factors that could have influenced the reliability of the defendant's confession warranted a new trial. From the court's opinion:

Antonio West was indicted for possessing a firearm as a felon in violation of 18 U.S.C. S 922(g)(1). The gun in question--an old M1 carbine--apparently belonged to his late father and was found in the attic of the family home during a consensual search for a stolen television. No fingerprints were recovered from the gun, and there was conflicting evidence about whether West actually lived at the house at the time. The government's case for possession rested heavily on West's admission to the police that the gun was his.
West's attorney moved to suppress the statement based on expert testimony by Dr. Steven Dinwiddie, a forensic psychologist, that West has a low IQ, suffers from mental illness, and scored high on the Gudjonsson Suggestibility Scale, a psychological test that measures a person's degree of suggestibility. The district judge denied the motion, finding that West was competent to waive his Miranda rights and did so voluntarily. West's attorney then moved to admit the expert testimony at trial for three purposes: to assist the jury in assessing the reliability of the confession, to negate the intent element of the offense, and to explain West's unusual demeanor should he choose to testify. The government objected to admission of the expert testimony on the last two grounds but agreed that the evidence was admissible on the issue of the reliability of West's confession. The judge excluded the expert evidence altogether, and the jury found West guilty.

West argues that excluding the expert testimony was reversible error. We agree. The reliability of a confession is a factual question for the jury, and the expert's testimony was relevant and admissible on that issue. The government acknowledged as much in the district court, though it now defends the judge's ruling. Because the government's case turned largely on the jury's acceptance of West's confession, the exclusion of the expert testimony was not harmless error. We reverse and remand for a new trial.

Dr. Dinwiddie's expert testimony would have explained West's low IQ and mental illness and how these combined conditions might have influenced his responses to the officers' questions while in police custody. We think it plain that expert testimony that West is a suggestible, mentally ill person with a verbal IQ of 73 bears on the reliability of his statements to police. Testimony of this type is highly relevant to the jury's consideration of a defendant's "personal characteristics"--exactly the sort of evidence that a jury ought to be permitted to hear to assess the trustworthiness of the defendant's statements to the police.

Click here for the complete decision.

The statement "[i]f I am under arrest, take me to my bunk; all these questions, we can just skip them because I want to go to court" was an unambiguous invocation of his right to remain silent

In US v. Womble (November 2015) the US District Court, S.D. West Virginia ruled that the defendant's statement to the police after he was informed that he was under arrest, "[i]f I am under arrest, take me to my bunk; all these questions, we can just skip them because I want to go to court" was an unambiguous invocation of his right to remain silent. From the court's opinion:

In this case, Womble unambiguously and unequivocally invoked his Fifth Amendment right to remain silent when, after being informed he was under arrest and during interrogation, he said, "[i]f I am under arrest, take me to my bunk; all these questions, we can just skip them because I want to go to court." ... Womble's statement was an unambiguous and unequivocal invocation of his right to remain silent for at least two reasons.

First, Womble did not use equivocal or ambiguous words, instead his statement indicated a certain and present desire to cease questioning. Womble did not use the words "should," "might," or "maybe," words which create ambiguity and indicate equivocation about whether one desires to invoke the right to remain silent... He did not say "I think" we can skip these questions... Rather, Womble said "all these questions, we can just skip them because I want to go to court." Womble's statement is unequivocal and unambiguous--he did not want to talk to police, ... and he had a certain and present desire to cease questioning and go to his bunk.

Second, a reasonable officer under the circumstances would have understood both parts of Womble's statement to mean that he wished to halt questioning. Judging from the video this Court viewed during the pre-trial motions hearing on November 16, 2015, Womble's statement was not interrogatory.... Instead, the first part of his statement was a directive within the consequent of a conditional that had a true antecedent: "If I am under arrest," an antecedent the truth of which was known both to Womble and the detectives, "take me to my bunk," a directive. The next part of Womble's statement, "all these questions, we can just skip them because I want to go to court," was declarative, informing detectives of Womble's intent to go to court in light of his being under arrest. A reasonable officer under the circumstances could only understand these statements to mean: Because I am under arrest, I do not wish to speak to you, I wish to sit in my bunk and await my trial. In saying these things, Womble did not hedge, hem, or haw with the detectives about his intent to invoke his right to remain silent; he told the detectives he wanted to go to his bunk and await a court appearance. That Womble did not want to talk to police is necessarily derived from what Womble said to the detectives. The detectives in this case should have understood Womble's statement as an indication that he desired to cease questioning.

For the two previously stated reasons, the Court holds Womble unambiguously and unequivocally invoked his right to remain silent when he said, "[i]f I am under arrest, take me to my bunk; all these questions, we can just skip them because I want to go to court." After Womble's invocation of the right, detectives did not scrupulously honor Womble's right to cut off questioning,... instead they continued the interrogation and were able to gain incriminating statements. As such, Womble's statements made after he invoked his right to remain silent are inadmissible under the rule from Miranda. Miranda, 384 U.S. at 479.

Click here for the complete decision.

Value of videotaping interrogation to demonstrate defendant's demeanor; lying about DNA evidence not coercive

In Melendez v. Koehn (November 2015) the US District Court, N.D. California, upheld the defendant's conviction, rejecting his claims of an invalid Miranda waiver and of a coerced confession, in part, after reviewing the videotape of the interrogation. From the court's opinion:

Here, the California Court of Appeal reasonably determined that, in the context of the entire interview, Petitioner was not in custody. The court referenced the videotape in reasonably concluding that Petitioner "felt comfortable stating and restating his version that D.C. was a promiscuous young girl who planned enticing him... This, along with "the officers advis[ing] him he was not under arrest; he could stop talking at any time and they would take him back to work," sufficiently supports the court of appeal's determination that Petitioner was not in custody... And although Petitioner was questioned at length at the police station, he was not physically restrained or cuffed, and Detective Garay was assisting in Spanish during the meeting.

The California Court of Appeal's rejection of Petitioner's coerced confession claim was not contrary to, or an unreasonable application of, clearly established federal law, nor was it based on an unreasonable determination of the facts... The state court of appeal reasonably determined that Petitioner's statements were not involuntary because they were not extracted by threats or violence, obtained by direct or indirect promises, or secured by improper influence. Nor were they coerced by physical intimidation or psychological pressure. The record instead showed that Petitioner laughed with the officers, seemed calm and alert during the questioning, and felt comfortable enough to argue that the alleged victim's sexual instincts were the cause of his predicament. Under these circumstances, it simply cannot be said that the state court's determination that Petitioner's statements were not coerced was objectively unreasonable.

To be sure, it is undisputed that Detective Harrison misled Petitioner on the existence of DNA evidence from the victim before Petitioner advanced his claim that D.C. was the aggressor in the relationship. But this sort of deception by itself is compatible with lawful police behavior because it is not likely to result in an involuntary confession... Nor does Petitioner's contention that he was promised leniency compel a different conclusion. The record shows that during the interview, Detective Harrison said, "Please do not have me show that you are lying, please help me out...we will forget everything, let's just do the truth."... Harrison's statement may have motivated Petitioner to tell the truth, but is not enough to compel a judicial determination that Petitioner's statements were coerced.

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South Dakota adopts the "trustworthiness" standard to determine whether admissions are admissible and sufficient to support a conviction in criminal cases

In State v. Plastow (December 2015) the Supreme Court of South Dakota ruled that in future cases instead of requiring evidence of the corpus delicti they will adopt the trustworthiness standard as an alternative method of corroborating admissions. From the court's opinion:

The corpus delicti rule is generally applied in one of two situations: (1) challenges to the admissibility of an admission, or (2) challenges to the sufficiency of the evidence... In 1954, the Supreme Court rejected the traditional corpus delicti rule in favor of a "trustworthiness" standard to determine whether admissions were admissible and sufficient to support a conviction in criminal cases. The Court acknowledged that some jurisdictions required corroborative evidence to touch the corpus delicti of the crime charged, while other courts found that "proof of any corroborating circumstances is adequate which goes to fortify the truth of the confession or tends to prove facts embraced in the confession.".... The Court rejected the former corroboration rule; the rule currently applied in South Dakota... The Court held that the better rule is "to require the Government to introduce substantial independent evidence which would tend to establish the trustworthiness of the statement." .... The independent evidence is sufficient if it "supports the essential facts admitted sufficiently to justify a jury inference of their truth.".... The Court found this is the better rule because the independent evidence serves two purposes: "It tends to make the admission reliable, thus corroborating it while also establishing independently the other necessary elements of the offense.".... In a companion case, the Court elaborated on the application of the trustworthiness rule: "The quantum of corroboration necessary to substantiate the existence of the crime charged" is that "[a]ll elements of the offense must be established by independent evidence or corroborated admissions, but one available mode of corroboration is for the independent evidence to bolster the confession itself and thereby prove the offense 'through' the statements of the accused."

We agree with the many courts that have concluded the corpus delicti rule is outdated and may serve to obstruct justice in certain circumstances. In light of the considerations presented today, we agree that the traditional rule has outlived its usefulness, and we now follow numerous other jurisdictions in adopting a more modern approach. We adopt the trustworthiness rule announced in Opper and Smith. Thus, in cases where the defense has moved to suppress an admission before it has been admitted into evidence, the court may admit the statement upon the State's showing of "substantial independent evidence which would tend to establish the trustworthiness of the statement."

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Threat of being raped in jail contributed to a coerced confession

In Little v. US (November 2015) the District of Columbia Court of Appeals held that defendant's confession following a series of improperly coercive interrogation techniques was involuntary. From the court's opinion:

For nearly two hours of stationhouse questioning, in the face of false reports that several witnesses had identified him, a false claim that his fingerprints were found in the vehicle, and persistent illusory promises of favorable treatment if he confessed, eighteen-year-old Jolonta Little remained steadfast in his denials that he was involved in the carjacking of which he was later convicted in this case. Things began to change, however, when a detective goaded him about the prospect of being sexually assaulted when he arrived at the D.C. Jail if he did not confess and thus give police "an opportunity to help [him] instead of incarcerate [him]." As Mr. Little began to waver, the detectives then proposed the idea of meeting with a lawyer to work out a deal. Under intensifying pressure, and having heard the detective mention a lawyer, Mr. Little inquired, "So where my attorney at?" and stressed that he was "trying to have that meeting set up." There would be no such meeting with his lawyer unless Mr. Little put some "meat ... on the table" and confessed, the officer said: "I got to have a reason for that to happen, and that reason is going to have to be you telling me what happened that day when that lady got robbed." At this point, in the face of a threat of being raped in jail, a confusing statement about when he could see a lawyer, and a statement that conditioned a meeting with a lawyer upon his confessing to the carjacking in this case, Mr. Little's resolve collapsed and he confessed. The firmness of Mr. Little's denials during disquieting tactics and the persistence of those denials as the pressure increased help persuade us that when he finally did speak in the immediate wake of the most coercive tactics mentioned above, his statements were not made "freely, voluntarily, and without compulsion or inducement of any sort." .... On this ground, we hold that Mr. Little's motion to suppress his confession should have been granted, and we reverse Mr. Little's convictions and remand for a new trial.

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Defendant's statement that he had a personal lawyer and that "[C]an we get him down here now, or ...?" was not an unambiguous request for a lawyer

In People v. Kutlak (January 2016) the Supreme Court of Colorado found that the statement from the defendant (who was in custody) that he had a personal lawyer and that "[C]an we get him down here now, or ...?" was not an unambiguous request for a lawyer. From the court's opinion:

Westminster police arrested Levent Ray Kutlak after he had a physical altercation with members of his wife's family. Detective Russ Johnson interviewed Kutlak at the police station. After he was read his Miranda rights, Kutlak stated that he had a personal lawyer and asked, "[C]an we get him down here now, or ...?" Detective Johnson responded that "it may be difficult" to get in touch with the attorney and that "[i]t may be something we have to do later. It's entirely up to you." Moments later, Kutlak stated that he was going to "take a dice roll" and talk with the detective. Kutlak signed a Miranda waiver and proceeded to make incriminating statements regarding the incident.

Kutlak later moved to suppress the statements he made in the interview with Detective Johnson. The trial court denied Kutlak's motion and a jury subsequently convicted him of child abuse, first degree criminal trespass, and two counts of third degree assault. The court of appeals reversed the judgment of conviction and remanded for a new trial, concluding that the trial court erred in denying Kutlak's motion to suppress his statements. The court reasoned that Kutlak unambiguously invoked his right to counsel during the interview and that, because the initial interview never stopped, Kutlak could not have reinitiated further communication with Detective Johnson. The court declined to reach Kutlak's remaining contentions on appeal.

We granted the People's petition for writ of certiorari and now reverse the court of appeals. We first clarify that, in determining whether a suspect in custody has made an unambiguous request for counsel, the proper standard under Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), is whether "a reasonable police officer in the circumstances would understand the statement to be a request for an attorney." Applying this standard, we hold, based on our independent review of the video-recorded interrogation, that Kutlak did not unambiguously and unequivocally invoke his right to counsel. Because Kutlak did not actually invoke his right to counsel, and because he otherwise validly waived his Miranda rights before making incriminating statements to the detective, his statements should not have been suppressed. Accordingly, we reverse the judgment of the court of appeals and remand with instructions to address Kutlak's remaining contentions on appeal.

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Reference to the possible prosecution of his son did not render the confession inadmissible

In US v. Goldtooth (June 2015) the US District Court, D. Arizona, rejected the defendant's claim that the interrogating officers preyed on his family emotions and thereby coerced him to confess. From the court's opinion:

Defendant and his son were arrested on August 11, 2011, in connection with the robbery for which they were originally stopped. Defendant was interviewed two days later, on August 13, 2011, regarding the murder of Virgil Teller. He was interviewed by FBI Special Agent Matt Shelley and Navajo Criminal Investigator Mike Henderson.

During the interview Agent Shelley recounted information he had obtained, including information concerning disputes within a gang to which Defendant and Virgil Teller belonged. He also mentioned Defendant's son, saying: "I know Gage got some cuts on his hand the same night."... The officer then said: "I mean, anything you can do to enlighten me, get yourself out of a mess--you know what I mean? Because it's not looking too good ... right now."

At this point in the conversation, Defendant asked "[w]here's my son?" ... Agent Shelley responded that Gage was in custody in the same facility, but that Shelley had not yet spoken to him. Agent Shelley then said: "Seem like a guy that looks after your son, right? I mean, I know you guys bang together a little bit." ... A few moments later, the agent said: "But, it seems to me that, you know--seems to me you're kind of protective of your son."... Defendant responded: "Yeah, pretty much." ... Agent Shelley then said: "I'll be quite frank with you, you know, things are kind of looking at him like not so good. And I know he--you don't--you've been in. You don't want him to go in I'm sure. Am I right?"... Defendant said "Yeah."

Agent Shelley stated that a collection of evidence had occurred at Teller's house, including the collection of blood. He noted that not all of the blood was Teller's. He said: "I need to know about it. You know, if it's self-defense or whatever, or if, you know, it just started out as a melee, and just got out of hand, whatever, I just need to know." ... The officer said: "You're in a tough spot. Am I right?"

Defendant asked for a drink of water, and the officers provided it to him. Defendant then said: "My son didn't have nothing to do with it." ... Defendant proceeded to explain that he, his son, and Tsosie went to Teller's house to ask Teller about an altercation that occurred the day before with other gang members. Defendant said he was not going with any ill intent. He said Teller's door was partially open, and when Gage pushed it completely open, Teller swung a machete at Gage, hitting him in the hand and cutting it severely. Defendant noted that he was already intoxicated when he saw Teller "trying to hurt my son[.]"... "I just got out of hand, you know." ... Defendant proceeded to explain that he lost control and stabbed Teller with the knife. After providing the additional detail, Defendant said: "Like I said, my son didn't have nothing to do with it, you know."

Defendant argues that the interrogating officers preyed on his family emotions and thereby coerced him to confess. Defendant relies on three cases.

In Lynumn v. Illinois, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963), the Supreme Court reversed a defendant's conviction on the ground that her confession was coerced. The Supreme Court provided this explanation: It is thus abundantly clear that the [defendant's] oral confession was made only after the police had told her that state financial aid for her infant children would be cut off and her children taken from her if she did not "cooperate." These threats were made while she was encircled in her apartment by three police officers and a twice convicted felon who had purportedly "set her up." There was no friend or adviser to whom she might turn. She had no previous experience with the criminal law, and had no reason not to believe that the police had ample power to carry out their threats.

In Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963), the Supreme Court reversed the defendant's conviction because his written confession was coerced. The defendant was held for approximately 16 hours while being denied any opportunity to call his wife or attorney. Interrogating officers told the defendant that he would continue to be held with no ability to contact his family or lawyer until he confessed in writing. The Supreme Court explained: The [defendant] at first resisted making a written statement and gave in only after consistent denials of his requests to call his wife, and the conditioning of such outside contact on his accession to police demands. Confronted with the express threat of continued incommunicado detention and induced by the promise of communication with and access to family, Haynes understandably chose to make and sign the damning written statement[.]

In United States v. Tingle, 658 F.2d 1332 (9th Cir.1981), the Ninth Circuit reversed the defendant's conviction because her confession was coerced. The Defendant was held in the back of a police car and questioned by two officers for an hour... . The Ninth Circuit provided this explanation: In this case, the threat was not as explicit nor as extreme, but the coercive purpose and effect are indistinguishable from that in Lynumn. Agent Sibley recited a virtual litany of maximum penalties for the crime of which Tingle was suspected, totaling 40 years imprisonment. He expressly stated, in a manner that could only be interpreted in light of the lengthy sentences he had described, that Tingle would not see her two-year-old son "for a while." Referring specifically to her child, Sibley warned her that she had "a lot at stake." Sibley also told Tingle that it would be in her best interests to cooperate and that her cooperation would be communicated to the prosecutor. He also told her that if she failed to cooperate he would inform the prosecutor that she was stubborn or hard-headed.

The interrogations in Lynumn, Haynes, and Tingle each included an appeal to family sentiments in an otherwise coercive environment. They do not mean every reference to a suspect's family during interrogation renders a subsequent confession involuntary. As the Ninth Circuit has explained, "in extreme cases, appealing to a defendant's moral obligation to his or her family as leverage to coerce is unconstitutional.".... The Ninth Circuit further explained that references to family members could, in appropriate circumstances, be considered a permissible interrogation technique: "Detective Cardwell simply reminded Ortiz of his obligation to his family to tell the truth and that his children were counting on him to do the right thing. These permissible psychological appeals to his conscience, although possibly making him emotional during the interview, do not demonstrate that his will was overborn."

After considering the totality of the circumstances in this case, the Court concludes that Defendant's will was not overborn by the interrogation techniques of the officers. The Court bases this conclusion both on Defendant's characteristics and the details of the interview.

Defendant was 39 years old at the time of the interview. He had a GED degree, was articulate, and had substantial experience in the criminal justice system, including many previous misdemeanor convictions and at least one prior felony conviction. The interview transcript and tape suggest that Defendant fully understood the nature of the interview and the questions that were asked.... Defendant listened to and read the Miranda warnings, consented to be interviewed, and signed a waiver of rights form. Questioning by the two officers was not loud, oppressive, or overbearing; it was conversational and friendly.

The discussion of Defendant's son was not an irrelevant appeal to family emotions. His son, Gage, had been arrested with Defendant, in a vehicle where the apparent murder weapon was carried, and had a severe cut on his hand. Defendant admitted that he "banged" with his son, an apparent reference to gang activity, and was drinking and intoxicated with him on the night in question. Discussion of Gage's possible involvement in the murder was thus a relevant and logical line of inquiry, as were questions about Tsosie's possible involvement.

The officers did not threaten Defendant. They did not make promises of leniency toward Gage. They did imply that Gage was a suspect in the murder--a true statement given the facts from the night of the traffic stop--and did appeal to Defendant's interest in protecting his son. But the Court views this line of questioning, in light of all the surrounding facts, as akin to the family-related questions in Ortiz, which the Ninth Circuit found to be a "permissible psychological appeals to [Defendant's] conscience." ... Indeed, a discussion of Gage's involvement was a more relevant and natural topic of inquiry than the mention of family in Ortiz.

Although it is true that the discussion of Defendant's son appears to have been a turning point in the interrogation, this fact is consistent with a desire on Defendant's part to take responsibility for a crime Defendant committed. Defendant not only made clear that his son was not involved in the stabbing, but also that Tsosie was not involved. This suggests that Defendant's confession was an acceptance of his responsibility for the murder, not simply a capitulation to coercive family-related questions. A review of the entire interrogation leaves the Court firmly convinced that Defendant's will not was overborn.
This case is distinguishable from the circumstances in Lynumn where officers specifically threatened that financial aid would be cut off to the suspect's children and she would not see them again unless she cooperated. The suspect was questioned while encircled in her apartment by three police officers and a twice-convicted felon who had set up the purported drug buy, and she was inexperienced in the criminal law and had no reason to disbelieve the threats.

This case is also distinguishable from Haynes, where officers specifically held the defendant incommunicado and told him that he would be permitted to contact his family and lawyer only after he confessed. As the Supreme Court noted, the tactics of secret and incommunicado interrogation were "devices adapted and used to extort confessions from suspects."

This case is also distinguishable from Tingle. The officers in Tingle recited maximum penalties for the crimes being faced by the suspect, totaling 40 years, and then told her she would not see her two-year-old child "for a while." They suggested it would be in her best interests to cooperate and that her cooperation would be communicated to the prosecutor. The interrogation occurred while the suspect was sitting in a police car with two officers. The environment was sufficiently pressurized to cause the suspect to begin sobbing and shaking.

Comparable coercion and pressure were not brought to bear on Defendant in this case. The interview was calm, Defendant was experienced in the criminal justice system, he knowingly waived his rights, no threats were made, and the discussion of his son was a relevant and logical outgrowth of his son's involvement on the night in question. By more than a preponderance of the evidence, the Court finds that Defendant's confession was voluntary.

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