JOHN E. REID & ASSOCIATES, INC.
 

Legal Updates Winter 2017

Defendant claims his confession was involuntary because “his restrictive childhood conditioned him to acquiesce to male authority figures”

In State v. Nelson (October 2016) the Supreme Court of Minnesota rejected the defendant’s claim that his confession should have been suppressed because “the interrogating officers led him to believe that they were not his adversaries and that confessing would benefit him.”

Nelson was convicted of murdering his father. At the time of the crime he was 18 years old. Nelson moved to suppress the confessions. He called an expert, Dr. Harlan Gilbertson, a licensed psychologist, who opined that Nelson's restrictive childhood conditioned him to acquiesce to male authority figures. Dr. Gilbertson testified that Nelson was “quite socially delayed” and had an IQ in the low to average range. He further testified that he believed Nelson's statement was not voluntary because he was fatigued from staying at the scene for several hours, moving from car to car, and answering questions from different law enforcement officers.

The defendant asserts, in particular, that his on-scene confession was involuntary because the interrogating officers led him to believe that they were not his adversaries and that confessing would benefit him. He also asserts that his youth, inexperience, and upbringing made him “particularly susceptible” to the officers' manipulative interrogation techniques, in part because childhood abuse had conditioned him to acquiesce to male authority figures. After carefully considering these arguments, the officers' conduct, and the totality of the circumstances, we conclude that Nelson's confessions were voluntary.

Click here for the complete decision.

The use of deception with a 16-year-old defendant does not render the confession inadmissible

In People v. Jones (January 2017) the Court of Appeal, Second District, Division 7, CA rejected the defendant’s claim his statement was involuntary “due to deceptive and coercive tactics by the police. In particular, defense counsel claimed that the detectives repeatedly had lied to Jones during the interview by telling him that the casings recovered from the shootings had been matched to the gun seized from his father's apartment, that Jones's fingerprints had been found on the gun, and that multiple witnesses had identified Jones as the shooter. Defense counsel also contended that the detectives had coerced Jones into an involuntary confession by threatening that his father could be charged with the crimes, and by making an express promise of leniency when they encouraged Jones to “man up” and “do a little time in [a juvenile] camp.”

It is undisputed that, during the interview, Detective White made deceptive statements about the nature of the evidence that the police had linking Jones and his father to the shootings. In addition to showing Jones fake six-packs identifying him as the shooter, Detective White told Jones that the casings recovered from the shootings matched his father's gun (which was later proven to be true but was not known at the time) and that Jones's fingerprints had been found on the gun (which was not true). Detective White also told Jones that his father could “face some serious time” given that the gun had been found inside his home. While Jones characterizes Detectives White's statements as an implicit threat to prosecute his father for the shootings if Jones did not confess, the record does not support this claim. The detectives made clear in the interview that they did not believe Jones's father was the shooter because he did not match the description given by the witnesses. The detectives also made clear that they believed Jones was the shooter based on their investigation, and that Jones should “step up to the plate and admit what [he] did.” Although Detective White made reference to the potential criminal liability that Jones's father could face as the owner of the gun, he never threatened that Jones's father would be charged as the perpetrator unless Jones confessed.

When the totality of circumstances surrounding the April 3, 2013 interview is considered, it does not support a finding that Jones's admissions to the detectives about his involvement in the shootings were the result of coercive police tactics that overcame his will and rendered his statement involuntary.

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Value of video recording to refute defendant’s claims that he was interrogated for 7 hours and that the police refused to give him his medication

In State v. Reed (October 2016) the Missouri Court of Appeals, Eastern District rejected the defendant’s claim that the totality of the circumstances deprived him of his free will and forced him to confess.

From the court’s opinion: “The actual circumstances surrounding the police questioning also indicate that Reed's confession was voluntary. Reed was advised of his Miranda rights before both interview sessions, and he waived those rights both times. Det. Rodesiler testified that he thought Reed understood his rights. Our review of the video supports the detective's testimony, as Reed listened to the warnings, appeared to understand them, and calmly signed the waiver form before both interviews. The record contains no evidence indicating that police threatened or intimidated Reed to sign the waiver form or to answer their questions.

Reed asserts that the detectives' tactics were coercive because he was interrogated for seven hours while in pain and that he was “essentially told during the second interview that he could not have his medication or a cigarette until he confessed.” The record clearly shows that Reed exaggerates the facts relating to his interrogation. When viewed in the light most favorable to the trial court's ruling, the record strongly demonstrates that Reed was not coerced into a confession.

First, Reed was not interrogated for seven hours. At the motion-to-suppress hearing, Det. Rodesiler estimated that Reed was in the interrogation room for seven hours on the second day. But the detectives were interviewing other witnesses for much of that time. The video and corresponding transcript of Reed in the interview room indicates that Reed arrived in the interview room at 11:36 A.M. While waiting, Reed was given cigarettes, coffee, snacks, and bathroom breaks. Reed slept during much of this time. The detectives arrived about 3.5 hours later, at 3:10 P.M., and they apologized for the wait. The detectives explained that they had “a hundred things going at once.” The video indicates that Reed left the interview room after his confession at 5:10 P.M. While Reed might have been at the station for seven hours, our record indicates that he was in the interview room for less than six hours and interrogated only two hours. Reed's wait might have been boring, but the length was, in and of itself, insufficient to overcome his free will.

Next, Reed's argument that the detectives essentially told him “during the second interview that he could not have his medication or a cigarette until he confessed” is troubling on its face. However, when reviewing the context of the situation in its entirety, Reed's argument fails. Reed did not bring his medicine to the police station. Det. Rodesiler testified that the police were not allowed to give Reed any pain medication without a nurse present. About two hours after Reed arrived at the police station on the second day, he commented, “if I stay in here too long like this I'll be either bedridden and hospitalized [sic].” The following conversation occurred with the supervising officer:

[OFFICER]: Anything else I can do to make you more comfortable? I mean, we got the cushion seat there, can I what else—what else can make you more comfortable?

  1. REED: Nothing for real, I need like my muscle relaxers and stuff. Like, I take real strong medicine.

[OFFICER]: Okay.

  1. REED: And some days I don't take it especially when I'm going to go get my kids, because I can't watch them I'll be all doped up and stuff.

[OFFICER]: Sure, sure.

  1. REED: So I really don't want to take the stuff today, I'm supposed to have the kids in a little bit.

Clarified with the context of the situation, Reed admitted that he did not take his medicine every day and that he did not want to take the medicine that day because he did not want to be “all doped up and stuff.” Thus, the record clearly shows that the detectives were not allowed to give Reed medication, that Reed did not want to take the medicine that day, and that—viewing a reasonable inference most favorable to the trial court's ruling—the medicine was optional.

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15-year-old did not make a knowing and intelligent waiver of her rights

In the Matter of S.B., alleged delinquent child (November 2016) the Court of Appeals of Ohio upheld the lower court’s decision to suppress the appellee’s incriminating statements, ruling that she did not understand that she was waiving her Miranda rights when she signed the advisement card.

In their appeal the Appellant claimed that the appellee was not subjected to a custodial interrogation and made the statements voluntarily. In this case the lower court found that appellee was not in custody and that Miranda warnings were not necessary, but that the investigator read her the Miranda rights (anyway). The court then found that “there is no credible evidence on the electronic recording to indicate that Juvenile understood her right to an attorney based on the perfunctory manner in which the Miranda rights were presented to her.”

From the Court of Appeals: The trial court had the benefit of viewing Detective Scheurer's entire interview with appellee... We have also reviewed the entire interview. At the outset, Detective Scheurer knew appellee was the only suspect of the criminal act. Appellee was alone in the room with the door closed, and her mother was outside the room. Although Detective Scheurer read the Miranda Card, he did not tell appellee that her signature was a waiver of those rights. Immediately after making statements, appellee was detained, cuffed, and placed into custody. The length of the interview was in excess of one hour.

Upon review, we find the trial court did not err in granting the motion to suppress.

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Video recording of custodial police interrogation was admitted into evidence even though the defendant did not make any incriminating statements

In State v. Gaudreau (June 2016) the Supreme Court of Rhode Island upheld the admissibility of the police officers statement to the defendant during his custodial interrogation.

The defendant argues that the first trial justice abused his discretion when he denied his motion in limine to either suppress or redact the recorded police interrogation. He maintains that the videotaped interrogation had no probative value because it did not contain a confession and because the detectives' repeated accusations that defendant was lying were the equivalent of credibility testimony, which is absolutely prohibited from a witness. The defendant further argues that the prejudicial impact of the police officers' comments outweighed any minimal relevance that the tape might have had because they do not provide context, because defendant did not change his story during the course of the interview.

The lower court denied defendant's motion re the admissibility of the interrogation video with the following explanation:

My basis for allowing the video to be played in the [s]tate's case is that the [c]ourt finds that the video statement is relevant and probative. Having viewed it several times now, the [c]ourt finds that the video contains what can be viewed depending on again the jury's assessment of the evidence but certainly there are statements in this video that can be viewed as false statements made by this defendant in the hopes of extracting himself from suspicious circumstances.

In this case, the detectives repeatedly told defendant that “the jig is up,” that he concocted the story, that he lied to them, and that he should express remorse. Much of the interrogation resulted in either nonresponsive answers or repeated denials from defendant. Indeed, the majority of the video and transcript, after the initial confrontation with the witness statement, are dominated by the comments of the two detectives, with defendant occasionally responding in the negative. The defendant claims that because of the paucity of relevant or useful responses to be gleaned from defendant's consistent explanation of events and assertion of innocence, those officers' comments cannot be said to have had any contextual value. On the other hand, those comments certainly are prejudicial to defendant. The fact that the jury viewed a videotape of the very detective sitting on the witness stand telling defendant that he was a liar compounded the danger that the jury might have been prejudiced against defendant.

It is our view that defendant's videotaped statements to the police, including that he had driven around aimlessly during near blizzard conditions while his business was completely engulfed in flames, that he had neglected to take his keys, glasses, wallet, and driver's license with him, and that his home was broken into while he was gone, were far more prejudicial to him than anything said by his interrogators. Having that prejudice compounded by the eyewitness account of the snowplow driver, who was well acquainted with defendant, made the story that much less believable…. And the statement from the snowplow driver, if believed by the jury, had some tendency to prove that defendant was the most likely cause of the fire. We are therefore unable to conclude that, in the factual context of this case, a reasonable possibility existed that the prejudicial effect of the officers' comments impacted the outcome of his trial.

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Confession from a 9-hour interrogation found to be voluntary

In Cook v. Nogan (November 2016) the US District Court, D. New Jersey upheld the voluntariness of the defendant’s confession after being questioned for 9 hours. From the District Court’s opinion:

Mr. Cook asserts that his confession should have been suppressed because it was not voluntary. The last reasoned decision on this claim was on direct appeal to the New Jersey Supreme Court, which analyzed the claim as follows:

In determining whether a defendant's will was overborne, the totality of the circumstances must be examined, “including both the characteristics of the defendant and the nature of the interrogation.”… Relevant factors include “the suspect's age, education and intelligence, advice concerning constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature, and whether physical punishment and mental exhaustion were involved.”

At the suppression hearing in this case, the trial court considered many of those factors:

It is clear from the testimony that defendant went through a serious emotional experience in giving this statement. With intermittent breaks, he was questioned by two different officers over a nine-hour period. At no time did he request to stop or ask for a lawyer. He was given drinks and cigarettes. [He] was apparently given bathroom breaks and there is no evidence that promises were made to him.

The defendant was a high school graduate. There was no indication that he was unwilling to speak, nor that he was excessively tired. The interrogation, although lengthy, it was all during the general work day, and there was no indication that he was sleep deprived, or that he was in any way physically or mentally abused. He was given breaks, had one meal and refused another. Although he was emotionally distraught, his will was not overborne. The emotional distress seems more related to the horrible things he was admitting than to anything else.

The trial court applied the correct standards and amply explained its application of those standards when evaluating defendant's condition while he was interrogated. We agree with the trial court's conclusion, affirmed by the Appellate Division, that defendant has not shown that he was subject to substantial psychological pressure warranting suppression of his statements.

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Anatomy of a false confession

In Gonzalez v. Waukegan (December 2016) the US District Court, N.D. Illinois discussed the circumstances surrounding the false confession of the defendant. Gonzalez was exonerated by DNA evidence in 2015 after spending 20 years in prison for aggravated sexual assault and aggravated kidnapping. In discussing the circumstances surrounding the false confession, the court points out the following:

  • Gonzalez was identified by the victim while he was standing in the street, at night, illuminated by car headlights
  • “Although Gonzalez did not understand or speak English, Yancey explained his Miranda rights in English (!) and had Gonzalez sign an English waiver (!) of those rights…. Yancey then proceeded to interrogate Gonzalez in English (!)… Gonzalez later asked for an attorney multiple times, but the detectives ignored his requests.”
  • “Gonzalez insisted that he had no knowledge of the crime and that he had been with his girlfriend and her sister when the crime occurred…. Yancey and Marquez refused to accept that story, pressing Gonzalez to write out a confession… . They told Gonzalez that if his story was true, the judge would let him go in spite of a confession.”
  • “During the interrogation Yancey and Marquez told Gonzalez details about the crime gleaned from police reports and continued to press him for a confession. They told him the interrogation would continue until he confessed. Hungry, thirsty and tired, Gonzalez eventually agreed to write a confession . Not satisfied with the low level of detail in that confession, Yancey and Marquez tore it up and had Gonzalez write a more detailed statement. When that statement again proved to have no significant details matching Jane Doe's description of the crime Yancey and Marquez typed out a confession in English (!) for Gonzalez to sign, even though he was unable to read it.”
  • “That statement written by Marquez and Yancey contained many details about the crime that the police had learned from Jane Doe and from investigations of the scene. Yancey and Marquez then turned on the interview room's cameras for the first time, and they read the statement aloud rather than letting Gonzalez use his own words.”
  • “As there was no physical evidence linking Gonzalez to the crime, Jane Doe's identification of Gonzalez and Gonzalez's confession were the only pieces of evidence used in Gonzalez's trial.”

“Here Gonzalez has provided abundant details as to his interrogation, including allegations that he was denied an attorney, deprived of food and water, required to sign a Miranda waiver in English that he could not understand, interrogated at first in English and told that the interrogation would continue until he confessed.”

Considering the totality of these circumstances, we do not think it credible that petitioner's statements were the product of his free and rational choice.

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Defendant was entitled to Miranda warnings before immigration officers interrogated him on the side of the highway

In US v. Pacheco-Alvarez (December 2016) the US District Court, S.D. Ohio upheld the suppression of the defendant’s statements about his immigration status. From the court’s opinion:

“The defendant, Martin Ivan Pacheco-Alvarez, was entitled to Miranda warnings before immigration officers interrogated him on the side of the highway. Their failure to provide those warnings requires suppression of any statements he made about his immigration status.”

In April 2016, a special agent with United States Immigration and Customs Enforcement (“ICE”) received a tip that Pacheco, a Mexican national, was dealing cocaine and firearms in Ohio. According to Agent Myers, an informant saw Pacheco carrying drugs and guns several times and heard him “brag” about selling both. The informant provided Pacheco's name, address, and photo to Agent Myers, and also claimed that Pacheco was living in the United States unlawfully.

After receiving their orders several agents stopped the work truck that Pacheco was in.

Without providing any Miranda warnings, the ICE officers began investigating Pacheco's status as a suspected unlawful alien…. Agent Myers decided to “detain” Pacheco due to the lack of paperwork and his admissions that he was here unlawfully.

To be sure, the questioning that occurs during a routine traffic stop generally requires no Miranda warnings because these everyday police-motorist encounters are brief, non-threatening, and conducted in the presence of others….

But not all traffic stops are “routine.” The Supreme Court thus recognizes “that when a given traffic stop becomes more coercive than a routine traffic stop, police may well be required to advise a suspect of his Miranda rights even though the underlying seizure of the individual might qualify as a reasonable investigative detention under the Fourth Amendment.”

The test for determining whether a roadside traffic stop amounts to a custodial interrogation subject to Miranda is whether the “traffic stop exerts upon a detained person pressures that sufficiently impair his free exercise of his privilege against self-incrimination to require that he be warned of his constitutional rights.”… The relevant inquiry, therefore, “is how a reasonable man in the suspect's position would have understood his situation.” … Courts must consider several factors in determining whether a person is “in custody” for Miranda purposes during a roadside stop, “notwithstanding the traffic-stop nature of the origination of [their] detention.” These factors include:

(1) whether a reasonable person in the defendant's position would have felt free to leave; (2) the purpose of the law enforcement questioning; (3) whether the place of the questioning was hostile or coercive; (4) the length of the questioning; and (5) other indicia of custody such as (a) whether the defendant was informed at the time that the questioning was voluntary or that the suspect was free to leave; (b) whether the defendant possessed unrestrained freedom of movement during questioning; (c) and whether the defendant initiated contact with the police or acquiesced to their requests to answer questions.

Considering the totality of the circumstances, the Court finds that Pacheco was “in custody” when Agent Myers and Officer Salmon took his fingerprints and questioned him about his citizenship and immigration status.

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Court allows admissibility of video taped interrogation in which the investigator indicates her belief that defendant was lying and that the victims were telling the truth

In State v. Chandler (September 2016) the Supreme Court of Oregon upheld the lower court’s decision to allow into evidence the videotape of the defendant’s interrogation, which included statements by the investigator indicating her belief that defendant was lying and that the victims were telling the truth. On appeal, defendant argued that the trial court erroneously denied his motion to redact the investigator’s statements, indicating the prejudicial impact of those statements outweighed their probative value. From the Supreme Court’s opinion:

This court has long held that one witness may not comment on the credibility of another witness… That rule developed largely in response to the use of expert psychiatric testimony to attack a witness's character. As this court observed… the use of expert testimony in that manner “would create a class of cases in which opinion evidence would, in fact, determine the credibility of witnesses. Unless the function of a jury is to find the truth, its role is devoid of substance.” The rule prohibiting vouching testimony thus serves the policy goals of ensuring that the jury remains the sole arbiter of witness credibility and that the jury's role in assessing witness credibility is not usurped by another witness's opinion testimony.

Proceeding to the facts of this case, we conclude that the challenged portions of the interview between Gates and defendant were not admitted for the truth of the credibility opinions that they contained and therefore were not categorically inadmissible…. In defendant's motion to redact, he argued, in addition to his argument under the vouching rule, that Gates' unsworn, out-of-court statements during the videotaped interview should be excluded as inadmissible hearsay. The trial court disagreed, ruling: “As far as [Gates] making statements that some witnesses said this and some witnesses said that, which is, of course, somewhat hearsay, but I think[,] * * * taken in the context of the interrogation[,] the intent is to try to get the defendant's response.” In other words, the trial court concluded that the probative value of Gates' statements lay not in their truth, but rather in the context that they provided for defendant's responses.

In summary, we conclude that a person's out-of-court statement about the credibility of a witness or nonwitness complainant is not categorically inadmissible at trial if it is offered for a relevant, non-opinion purpose. In this case, Gates' out-of-court comments indicating her belief that defendant was lying and that the victims were telling the truth were not offered to prove the truth of those beliefs. Rather, the trial court understood that they were going to be offered to provide relevant context for the statements that defendant made throughout the interview, a viewpoint that defendant did not challenge. We therefore conclude that the trial court did not err in denying defendant's motion to redact on the ground that Gates' statements constituted prohibited vouching.

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Value of recording interrogation to disprove defendant’s claims

In Boyd v. State (September 2016) the Court of Appeals of Arkansas upheld the lower court’s ruling that the defendant’s incriminating statements (convicted of aggravated robbery) were admissible and were not the result of coercive tactics. Form the court’s decision:

Appellant's attorney filed a pretrial motion to suppress asserting in part that his statement should be suppressed because the officer illegally used promises of leniency to acquire his custodial statements, rendering them involuntary.

At the hearing on this motion to suppress, Detective Michael Gibbons testified that he interviewed appellant. He explained that he read appellant his Miranda rights, that appellant told him that he understood his rights, and that he wished to waive his rights in order to give a statement. The interview lasted more than one hour. Although appellant repeatedly asked whether he could receive a bond on these charges, Detective Gibbons testified that he never promised appellant a bond, noting that appellant was not yet charged with anything. The detective said that he told appellant that if a gun was not used or if it was not real, then a crime was considered robbery, where a bond was possible, but that a bond was not possible for aggravated robbery…. He admitted that he falsely told appellant that seven people had identified him as the robber and that traffic cameras had showed his vehicle at the scene…. Appellant confessed during the interview that he went into the three banks that day (two Metropolitan Banks and the Bank of the Ozarks), that he had a mask on, that he had a fake gun with him although he denied pulling it out, and that a teller gave him the money.

Specifically, appellant contends that Detective Gibbons coerced his confession through false promises and lies. Therefore, appellant argues that his resulting confession was inadmissible. We disagree.

During the interview that lasted over an hour, appellant was concerned with the availability of a bond. However, Detective Gibbons testified that he did not promise appellant a bond in exchange for his confession, which was confirmed by the actual interview provided to the trial court for consideration. Our de novo review of the interview itself shows that the detective told appellant repeatedly that he could not promise a bond. There was evidence that appellant had extensive experience with the criminal justice system; appellant freely waived his Miranda rights; and appellant's interview did not last an unduly long period of time. Based on our review of the totality of the circumstances, we hold that the trial court's decision not to suppress this custodial confession is not clearly against preponderance of the evidence.

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Court allows detective to testify as an expert witness to body language and other indicators of untruthfulness during police interviews

In State v. Rivera (November 2016) the Appellate Court of Connecticut upheld the lower court’s decision to allow a police officer to testify as an expert witness about body language and other indicators of untruthfulness. From the court’s opinion:

The state later presented the testimony of [investigator] Wuchek, during which the defendant's videotaped statement was admitted into evidence. After the videotape concluded, the state asked Wuchek if he “[pays] any particular attention to such things like body language” during his police interviews, to which Wuchek answered in the affirmative. When the state asked him to elaborate on why he does that, the defendant objected on the ground of relevance, without further elucidation, which the trial court overruled. Wuchek then replied that “[b]ody language helps [him] gauge the truthfulness of people's answers,” to which the defendant again objected, stating: “The jury has seen a videotape of the entire interview. The witness' interpretation of my client's credibility is—is taking on the jury's job.” The trial court disagreed and again overruled the objection. Wuchek continued: “Through interview and interrogation courses, we've learned that—I learned that people who are interviewed, sometimes, when they are untruthful they'll cover their mouth, they'll—they'll hunch down. Other indicators just help us get a feel for that person.” The prosecutor went on to ask for other indicators of untruthfulness, to which Wuchek cited various behaviors such as repeating interview questions, taking long pauses, and looking down or away from the interviewer.

To the extent that the defendant challenges on appeal Wuchek's testimony on the ground that it invaded the jury's exclusive function as trier of fact to assess the defendant's credibility, we conclude that this claim was properly preserved at trial. At the same time, however, because “[t]he trial court has wide discretion in its rulings on evidence and its rulings will be reversed only if the court has abused its discretion or an injustice appears to have been done”…. we conclude that the trial court did not abuse its discretion in allowing Wuchek's testimony on this ground.

“[I]t is a jury's duty to determine the credibility of witnesses and to do so by observing firsthand their conduct, demeanor and attitude.”… “Expert witnesses cannot be permitted to invade the province of the jury by testifying as to the credibility of a particular witness or the truthfulness of a particular witness' claims.”… Moreover, our Supreme Court held… that an expert should not be permitted to testify as to whether a particular complainant exhibited specific behaviors that the expert also identified as those characteristic of sexual assault victims because (1) such testimony amounts to an implicit opinion on whether the complainant's claims are truthful, and (2) the subject of such testimony is not beyond the knowledge of an average juror.

We previously have emphasized, however, that “a critical distinction must be recognized between admissible expert testimony limited to general or typical behavior patterns and inadmissible testimony directly related to a particular witness' credibility.”

…. in the present case, the trial court record reveals that Wuchek was never asked for, nor did he offer, his opinion as to either the credibility of this particular defendant, the truthfulness of this particular defendant's statements, or whether the defendant exhibited any behaviors characteristic of untruthful behavior. Although Wuchek did testify generally as to various behaviors concerning eye contact, posture, and speaking patterns that, on the basis of his training and experience, he opined are characteristic of people who are being untruthful, Wuchek, unlike the expert in Favoccia, did not directly comment on whether this particular witness exhibited any of those discussed behaviors. The jury remained free to assess independently, untainted by expert testimony, whether the defendant actually engaged in such behaviors… Accordingly, we conclude that the trial court did not abuse its discretion by overruling the defendant's objection to Wuchek's testimony on the ground that it invaded the province of the jury.

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“police are free ‘to capitalize on a defendant's sense of shame or reluctance to involve his family in a pending investigation’ absent circumstances which create a substantial risk that [he or she] might falsely incriminate himself [or herself]”

In People v. Zayas-Torres (October 2016) the Supreme Court, Appellate Division, Third Dept., New York upheld the lower court’s decision that the defendant’s incriminating statements were not the result of coercive tactics; specifically, referencing the potential criminal culpability of his girlfriend. From the court’s opinion:

The defendant was charged in a five-count indictment with burglary in the second degree (three counts), grand larceny in the third degree and criminal possession of stolen property in the third degree. Following a jury trial, he was acquitted of the grand larceny charge, convicted of the remaining charges, and sentenced to an aggregate prison term of 14 years with five years of post release supervision.

As for defendant's claim that police improperly coerced his confession, the hearing testimony and video reveal that, during the first part of the interview, defendant denied any knowledge of the thefts. After approximately an hour, police stopped questioning him and left to execute the search warrant. Upon their return, they informed defendant that items from the burglaries had been found in his home, and he admitted his involvement. Defendant asserts that police improperly coerced him to make this admission by threatening to arrest his girlfriend and place his children with child protective authorities if he did not take responsibility for the presence of the stolen items in the apartment. However, the girlfriend resided with defendant in the apartment where the stolen items were found, and, thus, the warning that she might be implicated was not deceptive. It is well established that “police are free ‘to capitalize on a defendant's sense of shame or reluctance to involve his family in a pending investigation absent circumstances which create a substantial risk that [he or she] might falsely incriminate himself [or herself]’ ” … Under the totality of the circumstances presented, we agree with County Court that no substantial risk of false incrimination was present and the People met their burden to prove that defendant's statements were voluntary.

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Court finds testimony of false confession expert Richard Ofshe to be “heavily biased and based on unsupported hypothetical scenarios”

In People v. Winbush (January 2017) the Supreme Court of California affirmed the conviction of Winbush. Ten days after he was released from the California Youth Authority, defendant Grayland Winbush murdered a young woman in her home during a robbery. The victim was beaten, stabbed, and ultimately strangled to death while her boyfriend was out Christmas shopping. The jury convicted defendant of murder in the course of a robbery, with personal use of a deadly weapon. It fixed the penalty at death. We affirm.

Defendant sought to exclude his recorded statements about Beeson's murder. The confessions were made after full Miranda warnings, … but defendant argued they were involuntary because they were induced by “the intentional application of psychological pressure” and a promise of leniency to avoid the death penalty. After a lengthy hearing, the court found all of the statements admissible. Defendant renews his arguments, claiming reversible error. Substantial evidence supports the factual findings below. We independently conclude as a legal matter that the statements were voluntarily given.

Sociology professor Richard Ofshe, Ph.D., testified as an expert on influence and police interrogation. Based on the interview tapes and transcripts and defendant's own recollection about unrecorded portions of the interview, Ofshe concluded the police used psychologically coercive tactics to secure defendant's confession. Specifically, in the professor's opinion, defendant's statements in the phone call to his mother indicated he believed he was avoiding the death penalty and securing a lighter sentence by admitting involvement. Although these statements did not prove capital punishment was threatened, they did suggest the subject came up during questioning. Ofshe also testified that defendant's confession was “contaminat[ed]” because it came after defendant heard the recording of (accomplice) Patterson's statement. He explained, “contamination can give someone information necessary to tell a story that fits the crime facts even if they weren't there.” Ofshe discounted testimony that the tape was played for only five minutes because Patterson did not implicate defendant until later in his statement. Finally, Ofshe believed defendant's unpersuasive claim that the murder was accidental was an attempt to obtain leniency.

On cross-examination, Ofshe conceded that generally accepted procedure did not require the police to record all phases of defendant's interview. Encouraging defendant to feel angry with Patterson was not a psychologically coercive tactic. Nor was it inappropriate for the police to play defendant a portion of Patterson's recorded confession. Ofshe conceded the police did not appear to have used any psychologically coercive tactics during the recorded portions of defendant's interview.

After examining all relevant circumstances in a lengthy, thoughtful ruling, the court determined beyond a reasonable doubt that all of defendant's statements were voluntary. .... the court rejected Dr. Ofshe's testimony as heavily biased and based on unsupported hypothetical scenarios, such as death penalty threats made during a suspect's trips to the bathroom. All of defendant's statements were admitted at trial.

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Court reject’s defendant’s claim that his diminished social and mental capacity invalidated his waiver of rights

In US v. Fritzsching (January 2017) the US District Court, D. Utah, Central Division upheld the admissibility of the defendant’s incriminating statements, rejecting his claim that his Miranda waiver was invalid because the “officers knew ... that he had a prior history of mental illness and a markedly diminished social and mental capacity.” From the court’s opinion:

The agents' awareness of Mr. Fritzsching's past mental and emotional disturbances is not grounds for suppression. That awareness constitutes only one portion of the totality of the circumstances analysis. The central question in the analysis of a knowing and intelligent waiver is how Mr. Fritzsching appeared and acted during the interview itself…

Here, Agents Ross and May testified that Mr. Fritzsching did not appear agitated during the interview. Rather, he articulated coherent answers to questions, nodded in response to statements in conversation, was alert throughout, and spoke in a quiet and subdued manner appropriate for the gravity of the situation. Mr. Fritzsching did not joke around with the agents, and appeared aware of what was occurring. Furthermore, at no time during the interview did Mr. Fritzsching ask for clarification or state that he didn't understand Agent Ross's questions. Aside from Mr. Fritzsching's vague indication of suicidal thoughts, neither Agent Ross nor Agent May observed any indications that caused them concern about Mr. Fritzsching's ability to participate in the interview. Mr. Fritzsching related his personal information without error or unnecessary hesitation. Mr. Fritzsching's conduct and demeanor gave Agents Ross and May no reason to believe that the Miranda waiver was not knowing or voluntary.

Although the waiver analysis must focus on how Mr. Fritzsching appeared and acted during his interview with Agents Ross and May, Mr. Fritzsching argues that permanent intellectual disability or diminished capacity prevented him from knowingly and intelligently waiving his Miranda rights. This argument is unpersuasive. Other than his mother's testimony that before Mr. Fritzsching was school age, a test result indicated “borderline retardation,” Mr. Fritzsching produced no admissible evidence of permanent intellectual disability or diminished capacity at the evidentiary hearing. Had Mr. Fritzsching actually produced evidence of mental disability, that evidence alone would not invalidate his Miranda waiver. Rather, that evidence would only help “to determine in a close case that the police should have known that [Mr. Fritzsching] could not understand.” This is not a close case. Both agents in the interview room testified that, besides Mr. Fritzsching's vague comment regarding suicidal thoughts, they did not observe any other indications which caused them concern about Mr. Fritzsching's ability to participate in the interview.

Therefore, based on the totality of the circumstances surrounding Mr. Fritzsching's interview, his Miranda waiver was made voluntarily, knowingly and intelligently, and suppression of his statement is not warranted.

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