Legal Updates Winter 2019
Court upholds minimization techniques and suggesting justifications for the crime
In Gomez v. California (January 2019) the US District Court, E.D. California, upheld the lower court’s decision to admit the incriminating statements made by the defendant who was convicted of twelve counts of committing forcible lewd acts upon a child under fourteen years old. In reviewing the admissibility of the defendant’s confession, the District Court stated that no single factor is dispositive in evaluating the voluntariness of a statement, and whether the confession is voluntary depends on the totality of circumstance. Fromm the District Court’s opinion:
Relevant considerations concerning whether an interrogation is coercive include the length of the interrogation, its location, and its continuity, as well as the defendant's maturity, education, physical condition, and mental health. In assessing police tactics that are allegedly coercive, courts have only prohibited those psychological ploys which are so coercive they tend to produce a statement that is both involuntary and unreliable under all of the circumstances. Investigators are permitted to ask tough questions, exchange information, summarize evidence, outline theories, confront, contradict, and even debate with a suspect… They may accuse the suspect of lying … and urge him or her to tell the truth. Investigators can suggest the defendant may not have been the actual perpetrator, or may not have intended a murder victim to die. They can suggest possible explanations of events and offer a defendant the opportunity to provide details of the crime. Absent improper threats or promises, there is no constitutional principle forbidding the suggestion by authorities that it is worse for a defendant to lie in the presence of overwhelming and incriminating evidence...Deception does not undermine the voluntariness of a defendant's statements to investigators unless it is of a type reasonably likely to procure an untrue statement.
A confession is not invalidated simply because the possibility of a death sentence was discussed beforehand, but only where the confession results directly from the threat such punishment will be imposed if the suspect is uncooperative—coupled with a promise of leniency in exchange for cooperation. Suggestions by investigators that killings may have been accidental or resulted from a fit of rage during a drunken blackout fall far short of promises of lenient treatment in exchange for cooperation. This is especially the case where detectives did not represent that the prosecutor or court would grant the defendant any particular benefit if he told them how the killings occurred.
Defendant's minimization argument fails to convince us the detectives interrogated him by improper coercive means. The detectives presented defendant with justifications for his crime, suggesting A.C. may have consented in the conduct. The detectives told him several times he was lying and asked him to tell the truth. The detectives speculated about the facts of the case and suggested defendant was in love with A.C., that they were in a relationship, and even that she may have initiated some sexual contact. A technique allowing the defendant to share the blame with the victim is permissible and does not render a confession the product of undue psychological coercion… The questions and hypotheticals posed did not imply defendant was innocent or suggest there would be no criminal charges against him. The detectives conducted permissible questioning. Neither detective made an improper promise or threat to defendant… The “minimization” by detectives of defendant's conduct included no promise of leniency from the prosecutor or the trial court.
The minimization used by the detectives was not employed to suggest to defendant he was innocent of any crime, and there was no mention of leniency. No threats were employed by the detectives to coerce defendant…. This interrogation technique did not minimize defendant's culpability. Defendant initially denied the detectives' suggestion that he had a relationship with A.C. Later, defendant admitted molesting A.C. but denied using force. In summary, defendant has not demonstrated his interrogators used impermissible coercive techniques that overborne his will. Defendant cooperated with the detectives and his conduct was voluntary.
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Court rejects defendant’s claim that his confession should have been suppressed because the investigators statements “improperly induced hope that his confession would benefit him”
In State v. Johnson (December 2018) the Supreme Court of North Carolina discussed the criteria that should be considered when evaluating the voluntariness of a confession. From the Supreme Court’s opinion:
We assess the voluntariness of a confession by determining whether, under the “totality of the circumstances, the confession is ‘the product of an essentially free and unconstrained choice by its maker,’ ” in which case it is admissible against him, or conversely, whether “ ‘his will has been overborne and his capacity for self-determination critically impaired,’ ” in which case “ ‘the use of his confession offends due process.’ ” In addition to considering whether the defendant's rights under Miranda have been heeded, when conducting this review of the totality of the circumstances, the Court should also consider: (1) circumstances under which the interrogation was conducted, for example the location, the presence or absence of restraints, and the suspect's opportunity to communicate with family or an attorney; (2) treatment of the suspect, for example the duration of the session or consecutive sessions, availability of food and drink, opportunity to take breaks or use restroom facilities, and the use of actual physical violence or psychologically strenuous interrogation tactics; (3) appearance and demeanor of the officers, for example whether they were uniformed, whether weapons were displayed, and whether they used raised voices or made shows of violence; (4) statements made by the officers, including threats or promises or attempts to coerce a confession through trickery or deception; and (5) characteristics of the defendant himself, including his age, mental condition, familiarity with the criminal justice system, and dispositive, … and the court is certainly free to look to a host of other facts and circumstances surrounding the act of confessing to determine whether, under the totality of the circumstances, the defendant was truly capable of making, and did in fact make, a free and rational decision to confess his guilt.
The trial court concluded as a matter of law that, “[b]ased on the totality of the circumstances during the entirety of the interview, the statements made by Defendant were voluntary,” and that “[t]he confession was not obtained as a result of hope or fear instilled by the detectives.” Defendant argues that the trial court's findings of fact failed to disclose material circumstances regarding the giving of his confession and therefore do not support the trial court's conclusion of law.
Defendant argues that detectives threatened him when they told him that they had sufficient evidence to convict him of capital murder and that he would “wear” the whole charge himself unless he provided them the names of his accomplices. However, we have held that informing a defendant of the charge he is facing does not constitute a threat… We find sufficient evidence in the record to support finding of fact as written, and we are consequently bound by it for purposes of appellate review.
Defendant did not argue to the trial court that officers made specific promises to him or threatened him. He simply argued that their statements “improperly induced hope that his confession would benefit him.” We note that the presiding judge watched the entirety of the interrogation interview and concluded that defendant's statements were voluntarily made. The trial court had the benefit of observing the testifying witnesses and heard extensive arguments from counsel. The trial court's findings of fact are supported by sufficient competent evidence and support the conclusion that, under the totality of the circumstances, defendant was not coerced or induced through hope or fear into giving his confession and that his confession was in fact voluntarily given.
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What interrogation techniques are “coercive and deceptive?”
In US v Pumpkin Seed (December 2012) the US District Court, D. South Dakota, Western Division, upheld the lower court’s decision that the defendant’s incriminating statements were admissible. From the District Court’s decision:
The defendant appealed the lower courts’ decision, among other points, claiming that the investigator’s interview tactics were coercive and deceptive. “Mr. Pumpkin Seed claims SA Garland’s tactics “confused” defendant and that defendant could help himself out by giving the right answer... Defendant contends the agent’s inappropriate tactics included the following interview statements by SA Garland:
I already know the answers to this and just need clarification;
I know for a fact that there were instances where she touched your penis;
[I]f you don’t tell me the truth, I think bad thoughts;
[I]t makes me think you have something to hide;
[T]he questions I am asking you Ronald I already know the answers to;
I can articulate to my boss that Ronald was completely truthful with me; and
[I]t is often times worse when people don’t tell me the truth ... I already know the answers.
Defendant submits “[t]hese types of leading questions set up [Mr. Pumpkin Seed] to give an involuntary confession.” The magistrate judge addressed this argument:
As stated above, the question before the court is not whether Mr. Pumpkin Seed may have given a false confession, but whether his statement was voluntary. “The sole concern of the Fifth Amendment ... is governmental coercion.” … “Indeed, the Fifth Amendment privilege is not concerned ‘with moral and psychological pressures to confess emanating from sources other than official coercion.’ ... [T]he voluntariness of a waiver of this privilege has always depended on the absence of police overreaching, not on ‘free choice’ in any broader sense of the word.”
“The mere fact that an officer may have elicited a confession through a variety of tactics, including claiming not to believe a suspect’s explanations, making false promises, playing on a suspect’s emotions, using his respect for his family against him, deceiving the suspect, conveying sympathy, and even using raised voices, does not render a confession involuntary unless the overall impact of the interrogation caused the defendant’s will to be overborne.” … SA Garland “was not physically aggressive” and he “did not create any more psychological pressure than is commonly associated with interrogations.”
“The appropriate test for determining the voluntariness of a confession is ‘whether, in light of the totality of the circumstances, pressures exerted upon the suspect have overborne his will.’ ”… “A statement is voluntary if it is ‘the product of an essentially free and unconstrained choice by its maker.’… “On the other hand, a statement is involuntary when it was extracted by threats, violence, or express or implied promises sufficient to overbear the defendant’s will and critically impair his capacity for self-determination.”
The magistrate judge found “there is no evidence of police misconduct sufficient to overbear Mr. Pumpkin Seed’s will.”
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Vermont Supreme Court describes elements of a non-custodial interview and elements to consider in evaluating coercion
In State v. Kolts (September 2018) the Supreme Court of Vermont upheld the lower court’s decision to admit the defendants confession. After a jury convicted him of aggravated sexual assault of a child the defendant appealed, claiming that he was not advised of his rights in a custodial interview and that his confession was coerced. The Supreme Court rejected these arguments. From the Supreme Court’s opinion:
In the spring of 2014, Detective Sergeant Ruth Whitney of the Addison County Sheriff's Department received a tip from an officer in New Hampshire to investigate defendant for having sexually assaulted his niece, A.H., a New Hampshire resident.After receiving this tip, Detective Whitney began her investigation by interviewing A.H. She then notified the Vermont Department for Children and Families (DCF) of the allegations. DCF alerted the Shoreham School District, where defendant worked as a bus driver. The school district suspended him from work and told him to contact DCF. An official with DCF told defendant to contact Detective Whitney to find out why he was suspended. He telephoned her twice but did not reach her. She called back and asked to speak to him in person either at the police station or his home. Defendant selected the station and agreed to come in the next morning. He drove himself.
Detective Whitney greeted him in the lobby and he followed her up the stairs through an unlocked door and into the unit where she worked. Just before entering her unit, there was a “clearly marked exit sign.” Detective Whitney led defendant into a room that had been designed for interviewing crime victims rather than suspects: it was carpeted and furnished with a sofa, a coffee table, a lamp, and two upholstered chairs. Framed artwork decorated the walls. A video camera recorded the entire interview.
Detective Matthew Wilson, who was armed, joined them inside. The officers closed—but did not lock—the door to this room. Defendant sat on the sofa, placing his arm around the back of it, appearing relaxed and comfortable. The detectives sat in the chairs. Detective Whitney asked defendant for permission to record their interview and defendant assented. Defendant asked if he could have a witness present for the interview, to which Detective Whitney responded that he could if he chose to have one. Defendant did not then make a request to have a witness present.
Before the detectives asked any questions about the allegations, speaking calmly, Detective Whitney told defendant “You don't have to be here,” and, “You can leave any time you want.” She then reiterated to him that “Any time you want to stop answering our questions or you want to leave, there's the door, you're free to go.... No hard feelings.” Defendant stayed. The detectives spoke in calm, often friendly tones throughout the interview. This is borne out by the video recording of the interview.
The detectives explained that defendant's niece, A.H., had accused him of being “sexually inappropriate” with her, to which defendant replied—with flat affect—that he was “shocked.” He had expected their questioning to be related to his job. The detectives elaborated that A.H. said she and defendant had engaged in sexual activity many times. Defendant denied this. The detectives then specified the type of sexual act that A.H. alleged had taken place. Again, defendant denied the allegations.
Detective Whitney told defendant that she had physical evidence to support A.H.'s charges. Defendant asked whether this meant that there was DNA evidence, to which the detective responded, “Yeah. What's the—what's the explanation? How did your DNA ... your transfer of body fluids, or cells, or hairs ... get on A.H. and into A.H.? How did that happen?” The police did not have any such evidence. Initially, defendant dodged answering the question. Detective Whitney asked again how defendant's cells could have transferred onto A.H. if, as defendant maintained, they did not have sex. “I can't figure that out. And I'm looking for you to tell me how that happened,” Detective Whitney said. Detective Wilson interjected that A.H. would not have fabricated the allegations. Defendant replied nervously, “Yeah. I'm going to jail.” Despite his shaken tone of voice, defendant maintained a relaxed posture, perched on the sofa.
Detective Wilson continued that A.H. would have to testify in court. Defendant said he did not want that to happen and asked how he could prevent her from having to testify. The detectives explained that was “up to you” if “you ... come clean.” In response, defendant confessed that he had repeatedly had sexual intercourse with A.H. The detectives then advised him that he was no longer free to leave and read him his Miranda rights, which he waived. After advising him of his rights, defendant continued his confession by describing sexual encounters with A.H. in greater detail and by lamenting that he should have anticipated that A.H. would eventually tell a friend what he had done, leading to his apprehension by the police.
[Re the claim this was a custodial interrogation] Detective Whitney plainly and repeatedly told defendant that he could end the interview and was free to leave at any time. Second, the detectives spoke in calm tones throughout the interview and were not aggressive in their demeanor. And the detectives did not directly accuse defendant of a crime. They simply asked that he explain alleged evidence against him and only did so after he sought the information from them. The detectives here did not tell defendant that he could be arrested until after he confessed. And they made no allegations against him until after he requested this information from them. The detectives' demeanor, tone, and questions during the interview did not belie Whitney's statement that defendant was free to leave.
Third, defendant voluntarily went to the police station to be interviewed, which favors the conclusion that he was not in custody. Fourth, the interview was short; it lasted only thirty-five minutes from the time defendant entered the interview room until the police Mirandized him. This was not a “marathon session designed to force a confession.”
Fifth, when defendant asked the detectives if he could have a witness present during his questioning, they told him that he could. Last, we recognize that conducting an interview at a police station may, in some circumstances, support the conclusion that a defendant was in custody. But where, as here, police treat a suspect essentially like a witness, and an interview takes place in a comfortable, unlocked room with a clearly marked and unobstructed exit, the fact that the interview occurred within the station may not warrant a holding that the defendant was in custody.
Defendant argues that the interview became custodial when the detectives falsely told him that there was DNA evidence of his guilt. In the United States Supreme Court decision Oregon v. Mathiason, the Court held that the defendant was not in custody even though an officer falsely told the defendant that his fingerprints had been found at the scene of a bank robbery, because the other circumstances of the interview—the defendant voluntarily came to the police station, was told that he was not under arrest, and left after speaking to police for half an hour—did not support a conclusion that the defendant was in custody. The Court explained that, “[a]ny interview of one suspected of a crime by a police officer will have coercive aspects to it.” … This is because the interviewing officer is “part of a law enforcement system which may ultimately cause the suspect to be charged with a crime.” … However, “police officers are not required to administer Miranda warnings to everyone whom they question.”
In summary, Detective Whitney's statements that defendant could leave anytime, her calm, unaggressive tone and questions, defendant's voluntary arrival at the interview, its short duration, and the detectives' willingness to have a third-party witness present during questioning, combined with the comfortable setting of the interview room and the close proximity of an exit outside the interview room door—which was not locked—all suggest that a reasonable person in defendant's position would not have felt he or she was in custody. The totality of the circumstances support the trial court's conclusion: defendant was not in custody when he confessed.
The defendant also claimed in his appeal that his confession was involuntary because he was coerced to confess by the police.
Here defendant confessed in response to Detective Whitney's claim that there was DNA evidence to prove his guilt. The detective's false claim is not enough to render his confession involuntary without other coercive actions, such as a promise of leniency. But the detectives here made defendant no promises of leniency. And, as courts have reasoned, an interviewer's use of false evidence is less likely to produce an involuntary confession than an interviewer's lie about matters external to the charge. For example, lies threatening a suspect's ability to retain custody of a child render a confession involuntary because they could induce a confession by overcoming a suspect's will. But lies about evidence of the charge are more likely evoke, if any feelings at all, a suspect's beliefs about his or her own culpability
Defendant argues that his confession was involuntary because he believed the detectives wanted to talk about his job when he went to the interview, and he was surprised by A.H.'s allegations of sexual assault. There is no requirement that police inform a suspect of the allegations before beginning an interview; to the contrary, if police can lie about the existence of evidence during the interview, … then, absent other strong indicia of police coercion, they certainly can refrain from disclosing the allegations prior to an interview.
Defendant also argues that police coerced him into confessing by promising that if he did then his niece would not have to testify. Threats to arrest a suspect's family member can render a confession involuntary… But there is no legal authority to support defendant's contention that his confession was involuntary because police suggested that the complainant—who happened to be his niece—would have to testify unless he confessed to having assaulted her. And this was not a promise by the detectives but a prediction of the State's strategy if the allegations progressed into a trial.
Contrary to the defendant’s claim, the court did not abuse its discretion by excluding two defense experts. Defendant notified the prosecution that he had two clinical psychologists, Charles Rossi and Paula Nath, whom he intended to call as experts regarding his confession.
Paula Nath has a master's degree in school psychology and has been licensed as a clinical psychologist in Vermont for several decades. She met with defendant once, for one hour about one week after he confessed…. The trial court properly excluded Nath's testimony under Rule 702. Three of Nath's proposed conclusions involved her opinion that defendant confessed falsely. But she admitted to having no experience with false confessions, so she would not be able to, nor did she, “explain how [her] experience le[d] to the conclusion reached, why that experience is a sufficient basis for the opinion, [or] how that experience is reliably applied to the facts.”
Defendant's second proposed expert, Charles Rossi, testified at his deposition that he has a master's degree in counseling psychology. He did not have any “particular skills” dealing with false confessions and defendant was the “first person [he had] ever encountered” who, to his knowledge, has falsely confessed. He treated defendant with psychoanalysis…. As with Nath, Rossi's testimony did not identify a methodology or prior experience that he used to determine whether defendant confessed falsely…. Defense counsel's proffered conclusions for Rossi all involved the assumption that defendant falsely confessed. Because defendant did not demonstrate that this foundational opinion was based on reliable principles or methods, or prior experience, the court did not abuse its discretion in excluding Rossi's testimony.
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