Legal Update Spring 2013
Counsel was not ineffective for
failing to present testimony of false confession expert
In Johnson v. State (2012) the Supreme
Court of Florida found that “trial counsel was not ineffective for failing to
present testimony of expert in coerced confessions.” In their opinion the Supreme Court stated, “Moreover, attorney Hockett testified that the
decision not to call Dr. Ofshe at trial was a strategic choice predicated on
the fact that the defense had sufficiently preserved a challenge to the
admission of Johnson's confession through Dr. Ofshe's testimony at the
suppression hearing and that the defense felt that repeating a week's worth of
detailed testimony on that issue would not be helpful at trial. Additionally,
the record shows that Dr. Ofshe's testimony would have contained information detrimental to Johnson's defense, such as
Johnson's admission to Dr. Ofshe that Johnson had manipulated other experts and
doctors in an attempt to establish mental incapacity.” Click
here for the complete decision.
Military Appeals Court upholds decision to
exclude testimony of false confession expert – Dr. Christian Meissner
In US v.
Bell (March 2013) the U.S. Army of Criminal Appeals upheld a lower court’s
decision to exclude the testimony of Dr. Christian Meissner, stating that, “The
defense counsel did not provide any evidence that the appellant was unusually
susceptible to coercion or had any abnormal mental or emotional problems that
might make him more vulnerable to confessing falsely. The military judge found
the defense could not articulate exactly what Dr. Meissner could do for the
defense theory, and characterized the use of the expert as akin to a “fishing
expedition.” Click
here for the complete decision.
Human Lie Detector evidence
In US v.
Knapp (March 2013) the U.S. Air Force Court of Criminal Appeals stated
that, “The appellant contends on appeal that the prosecution improperly offered
testimony from Agent P that he could tell appellant was acting in a deceitful
and untruthful manner when discussing the sexual intercourse because (1) the appellant
would not make eye contact, (2) large red blotches would appear on his face,
and (3) his commentary became less detailed. He also argues the military judge
should have provided a curative instruction to the members on their use of this
testimony. When we put the challenged testimony in context and consider the
seven factors found in Jones, we do
not find its admission to be prejudicial error.” Click
here for the complete decision.
Recording interrogations not required in
Pennsylvania; false confession expert testimony excluded
In Commonwealth
v. Harrell (April 2013) the Superior Court of Pennsylvania found that the
state constitution does not require the recording of interrogations, stating
that, “In… this court held that
custodial interrogations do not need to be recorded to satisfy the due process
requirements of the Pennsylvania Constitution…. The
majority of states, with the exception of Alaska and Minnesota, have not
adopted a rule requiring police to record interrogations… Nor has the United
States Supreme Court been asked to determine whether the United States
Constitution requires the recording of custodial interrogations as a matter of
federal due process… This court determined that the Pennsylvania Constitution
does not require contemporaneous recording of statements and that the adoption
of a rule requiring contemporaneous recording of custodial interrogation should
be left to the Pennsylvania Supreme Court or the General Assembly, not an
intermediate appellate court.”
In this same case, regarding the testimony of
a false confession expert, the court stated the following:
“Recently,
…. we upheld the trial court's denial of the
defendant's request to call Dr. Debra Davis, an expert in the field of false
confessions:
[I]f the expert is only testifying generally
about the fact that false confessions happen, that is well within the grasp of
the average layperson and expert testimony would not be required under Rule 702. The components of a false
confession, according to Dr. Davis, include factors such as the interrogation
tactics employed, the training of the law enforcement personnel involved, and
the stress tolerance of the suspect. This [c]ourt found that testimony
concerning these factors can be elicited (and attacked) through the testimony
of other witnesses and is capable of being understood by the average juror. The
jury can then make its own determination as to the weight afforded to the
defendant's confession. Therefore, Dr. Davis' testimony was not proper because
expert testimony is inadmissible when the matter can be described to the jury
and the conditions evaluated by them without the assistance of one claiming to
possess special knowledge upon the subject.
Similarly, here, in addition to identifying
various problems with Dr. Ofshe's methodology, the trial court opined that the
issue of false confessions was not beyond the ken of the average layperson:
First, the Court is not convinced that any
specialized knowledge is required for jurors to understand the proposition that
a person possessing any of a number of unique factors (mental disability, fatigue, hunger, tender
age, propensity toward acquiescence to authority figures etc.) may be more
susceptible to police interrogative techniques. Further, the jurors would
certainly be able to evaluate any evidence or arguments presented at trial by
the defense to advance a theory that the conditions of [appellant]'s
interrogation, the techniques used by police, or the personal characteristics
of [appellant] had an impact on the veracity or voluntariness of [appellant]'s
confession without the assistance of the proffered expert testimony. If
anything, the testimony could confuse the issue by suggesting causal
relationships which are not borne out by the research actually conducted….. We
agree and find that the trial court did not abuse its discretion by precluding
Dr. Ofshe's testimony.” Click
here for the complete decision.
Circumstances that indicate juvenile interrogation
was not custodial
In Commonwealth v. Bermudez (December 2012)
the Appeals Court of Massachusetts upheld the lower court’s decision that the
interrogation of a juvenile was not custodial.
The court stated, “Applying these factors to the facts found by the
judge and the objective circumstances depicted in the interrogation videotape,
we conclude that the defendant's interrogation was not custodial. Although the
interrogation occurred at the police station, the defendant appeared there
voluntarily, accompanied by his mother, in response to a police request. He was
neither under arrest nor escorted to the station by the police. The
interrogation lasted seventy minutes, and the defendant sat next to the door
throughout the interview. One of the two interviewing officers left the room
from time to time, and the other sat across from the defendant behind a desk
next to a computer. The questioning was conversational and nonthreatening in
tone, and the detectives repeatedly told the defendant, who was not handcuffed
or restrained in any way, that he would be allowed to return home with his mother, as he
ultimately was. The defendant's age, a few months shy of his eighteenth
birthday, placed him on the cusp of majority, and far removed from the tender
years of early adolescence. Viewing all the pertinent factors objectively,
including the defendant's age at the time of the interview, we conclude that
the interrogation was not custodial so as to require Miranda warnings.” Click
here for the completed decision.
Colorado Supreme Court abandons the corpus
delicti rule and puts in its place, the trustworthiness standard
In People v. LaRosa (February 2013) the
Supreme Court of Colorado reached the following decision:
“This case requires us to decide whether to
abandon our judicially created corroboration requirement, the corpus delicti
rule, and with it over one hundred years of precedent. If we abandon the corpus
delicti rule, then we must decide another issue: what corroboration
requirement, if any, to articulate in its place. The People argue that we
should abandon the corpus delicti rule in favor of the trustworthiness
standard, which requires corroborating evidence that proves that a confession
is reliable, or, in the alternative, the sufficiency of the evidence test,
which requires no corroborating evidence. Instead, the sufficiency of the
evidence test would treat confessions like any piece of evidence to be analyzed
in the light most favorable to the prosecution during a motion for a judgment
of acquittal.
We abandon the corpus delicti rule because we
hold that sound reasons exist for doing so. In its place, we articulate the
trustworthiness standard, which requires the prosecution to present evidence
that proves that a confession is trustworthy or reliable. To determine whether
corroborating evidence proves the trustworthiness or reliability of a
confession, we hold that the trial court must find that corroboration exists
from one or more of the following evidentiary sources: facts that corroborate
facts contained in the confession; facts that establish the crime which
corroborate facts contained in the confession; or facts under which the
confession was made that show that the confession is trustworthy or reliable.” Click
here for the complete decision.
Illinois
Supreme Court also addresses the corpus delicti rule
In People
v. Lara (October 2012) the Illinois Supreme Court addressed the issue of
whether or not the appellate court improperly expanded the corpus delicti rule to require independent evidence corroborating every element of the specified offense
before a defendant's statement could be used to prove the corpus delicti of the offense. The Supreme Court stated:
The corpus
delicti of an offense is simply the commission of a crime. Along with the
identity of the person who committed the offense, it is one of two propositions
the State must prove beyond a reasonable doubt to obtain a valid conviction. In
general, the corpus delicti cannot be
proven by a defendant's admission, confession, or out-of-court statement alone.
When a defendant's confession is part of the corpus delicti proof, the State must also provide independent
corroborating evidence.
To avoid running afoul of the corpus delicti rule, the independent
evidence need only tend to show the
commission of a crime. It need not be so strong that it alone proves the
commission of the charged offense beyond a reasonable doubt. If the
corroborating evidence is sufficient, it may be considered, together with the
defendant's confession, to determine if the State has sufficiently established
the corpus delicti to support a
conviction.
The primary purpose of the corpus delicti rule is to ensure the
confession is not rendered unreliable due to either improper coercion of the
defendant or the presence of some psychological factor. … Unless a confession
cannot be sufficiently corroborated to fulfill this purpose, it remains one
stick in the evidentiary bundle the trier of fact may use in deciding whether
the State has met its burden of proving beyond a reasonable doubt that the
defendant committed the charged offenses. Setting the bar too high for finding
sufficient corroboration of a defendant's confession under the corpus delicti rule would intrude on the
scope of the fact finder's exclusive duties. As long as the confession is
reasonably reliable, consideration of it and all the other evidence properly
admitted at trial falls within the domain of the trier of fact.
By not requiring corroboration of every
element, or any one particular element, our interpretation of the corpus delicti rule supports the fact
finder's role. Simultaneously, it permits the trial court to perform its proper
legal function of ensuring the legal sufficiency of the corroborating evidence
presented by the State because the corroboration must still “tend [ ] to
connect the defendant with the crime” Defendant's reading of the rule would bar
the use of a confession if the details relating to the elements of the offense
did not completely align with the confession, contradicting our determination
in Furby
that “every detail need not correspond.” … Consequently, we reject any
interpretation that would partially usurp the fact finder's exclusive
responsibilities to evaluate the credibility of the witnesses, weigh the
conflicting evidence, and draw appropriate inferences from the evidence.
Accordingly,
consistent with our precedents, we hold that the corpus delicti rule requires only that the corroborating evidence
correspond with the circumstances recited in the confession and tend to connect
the defendant with the crime. The independent evidence need not precisely align
with the details of the confession on each element of the charged offense, or
indeed to any particular element of the charged offense.” Click
here for the complete decision.
How much corroboration is needed
to support the trustworthiness of a confession?
In the
case, In re K.A., Appellant (February
2013) the District of Columbia Court of Appeals addressed the issue of
corroboration, stating, in part, the following:
In confession cases, this jurisdiction has
long followed the United States Supreme Court's corroboration rule, explained
in decisions issued on the same day…… The rule, which “is intended ‘to forestall
convictions based on extrajudicial confessions the reliability of which is a
matter of suspicion,’ …. “requires ‘the Government to
introduce substantial independent evidence which would tend to establish the
trustworthiness of the statement’ before a confession can be submitted to the
jury and can sustain a conviction….”
It is hard to say precisely what quantum of
independent evidence is “substantial” enough to support a conviction, as “the amount and
kind of evidence needed to corroborate a confession will depend upon the facts
of each case.” … That case and others… make clear that the amount of
independent evidence required to satisfy the corroboration rule depends in part
on the circumstances under which the confession was made and any indication
that the confession might be false.
In examining “the degree of corroboration
required,” the court…. found it useful to examine, as a “threshold matter,” the
voluntariness and coherence of the confession, whether it was made under
trustworthy circumstances, and whether there were “signs that
the confession was false.”
Turning to K.A.'s case, we apply the threshold
analysis… and examine the circumstances of K.A.'s statements for signs of
trustworthiness. While we assume K.A.'s statements were
voluntary, his admission to possessing the guns bears hallmarks of a less than
trustworthy confession. K.A. confessed after persistent questioning by a number of officers in a small
apartment that, while a familiar environment, had been filled with police
officers for nearly an hour and a half. The officers repeatedly made clear that
they were willing to arrest K.A.'s grandfather, despite his illness and even
though they did not believe the guns were his. K.A.'s confession came in a
conclusory statement—“Man, they my guns. Take those things off him”—that
explicitly revealed an ulterior motivation to keep his ailing grandfather from
being arrested.
That motivation is the most conspicuous sign
of unreliability in the circumstances surrounding K.A.'s confession. K.A.'s
admission of guilt came only when his grandfather, with whom he lived and for
whom he performed at least some caretaking, “wasn't looking in the best of
shape,” and was receiving emergency medical treatment while handcuffed.
Terrell's testimony about his own thoughts while watching his grandfather go
through this ordeal suggests a similar inclination: “I was thinking of some way
how to stop this for real.... Maybe confess.” By
keeping I.A. handcuffed during his treatment, the police demonstrated that they
had every intention to take him to jail, not to the hospital.
While the corroboration rule does not require
that the government prove all of the elements of the crime through independent
evidence,… it does require that the independent
evidence be sufficient to make the confession worthy of an inference of truth.” Click
here for the complete decision.
Improper offer of leniency nullifies a
confession
In State
v. Wiley (March 2013) the Supreme Court of Maine found that the detective
made an improper offer of leniency to the defendant and that his improper offer
of a short jail sentence and some probation, as an alternative to lengthy
prison sentence, was the primary motivating cause of the defendant’s
confession, thus rendering the confession involuntary.
In describing the
detective’s behavior, the court stated the following: “Detective Bosco's representation as to how
certain it was that Wiley's cooperation would secure him a short jail sentence
and probation was equivocal at times, with Detective Bosco stating at one
point, “I can't promise you
anything,” but then, moments later stating that he could “guarantee” that the
judge would be more lenient. Nonetheless, it is inescapable that the overall
effect of Detective Bosco's representations—which he alternately described as
an “offer,” “option,” “opportunity,” and chance to “write[ ] your own
punishment”—was to establish that if Wiley confessed to the crimes he would get
a short county jail sentence with probation, and thereby avoid state prison.
Wiley was told, “[t]he only reason you're getting this opportunity is because
people spoke very highly of you,” and that “[t]his offer's going to expire if
... you're not going to do the right thing.” The conclusion that this concrete
representation was, in effect, an improper offer of leniency is inescapable.” Click
here for the complete decision.
When a
suspect is not in custody no need to stop questioning when they request an
attorney
In State
v. Lonkoski (April 2013) the Wisconsin Supreme Court ruled that when a
defendant is not in custody the interrogation does not have to be terminated
when he asks for an attorney. The court
stated the following:
“No one disputes that Lonkoski was interrogated,
so the issue is whether he was in custody. If he was not in custody, then
Lonkoski is not entitled to have his subsequent statements suppressed under the
Miranda rule….
Lonkoski argues that because the interrogation
had gotten to the point that the officers knew and could prove he was
responsible for his child's death, no one would believe he was free to leave,
and therefore, he was in custody. He further argues that even if he was not
actually in custody, a person may invoke rights under Miranda “when custodial interrogation is imminent or impending.”
The
parties agree that Lonkoski was not in custody at the beginning of the
interview. Because we are determining whether Lonkoski was in custody at the
point when he stated he wanted an attorney, we look at the circumstances
surrounding the interview to determine if he was in custody when he made that
statement.
We will begin by looking at the totality of
the circumstances, examining the facts surrounding the defendant's freedom to
leave. The circuit court found that the area that Lonkoski was in was a
“typical interrogation setting.” The court stated that the area was “locked to
ingress by individuals, but there [was] no indication that it was locked for
egress. That is, that the defendant could simply walk out.” The circuit court
also found that although the door was closed during most the interview, “there
were clearly times when the door was opened and he could in fact have walked
out.” Finally, the officers stated that Lonkoski was not under arrest and that
they were not accusing him.
The purpose, place, and length of the
interrogation also support the conclusion that Lonkoski was not in custody.
Lonkoski came to the sheriff's department on his own volition, providing
transportation for the child's mother, Bodoh. The location of the interview
being the sheriff's department weighs toward a custodial situation, but that
fact is not dispositive…. An officer went to the waiting room where
Lonkoski waited for Bodoh, and Lonkoski went to an interview room. The circuit
court found that the officers asked Lonkoski “open ended questions” that
“called for a narrative by him. They were not accusatory. They were not leading
questions.” The circuit court found that the length of the interrogation was
“relatively short” before he asked for an attorney, after about 30 minutes.
These facts indicate that Lonkoski was not in custody.
Like the other factors, the degree of
restraint Lonkoski experienced also does not indicate a custodial situation.
Two officers questioned Lonkoski. The door to the interview room was repeatedly
used by the officers throughout the interview without a key. At one point when
both officers were leaving the room, Gardner asked Lonkoski if he preferred the
door open or closed to which Lonkoski responded, “Don't bother me.” During the
relevant portion of the interview, Lonkoski was not handcuffed, no weapons were
drawn by the officers, and no frisk was performed…. The circuit court found
that Lonkoski was not physically restrained in any way. These factors indicate
a lack of custody.
Lonkoski argues that once the officers zeroed
in on him as a suspect, there was no way any reasonable person would have felt
free to leave. He cites several cases from other jurisdictions that he believes
support the proposition that a person's knowledge that officers suspect the
person of a serious crime is a significant factor that weighs in favor of
finding that the person was in custody.
Statements
officers make to a suspect can be an indication of the presence or absence of
custody…. However, a suspect's belief that he or she is the main focus of an
investigation is not determinative of custody…. The United States Supreme Court
has rejected this theory. For example, the United States Supreme Court… dismissed
a similar argument about the circumstances of a non-custodial interrogation
transforming into custodial interrogation after the investigation focused on
the suspect, stating, “[W]e are not impressed with this argument.”
In addition, we note that Lonkoski's standard
would necessarily focus on the subjective beliefs of both police and the
suspect. This is inconsistent with the objective test created for custody…. The
totality of the circumstances test applied in our opinion today provides the
appropriate framework to protect suspects in interrogations and to determine
whether a suspect is in custody for purposes of Miranda. Lonkoski's argument to the contrary is unsupported by the
controlling case law and the purpose behind Miranda
protections.
We conclude that Lonkoski was not in custody
when he asked for an attorney. Because his statement about wanting an attorney
was not made during a custodial interrogation, Miranda's rule requiring that the interrogation cease upon a
request for an attorney does not apply, and there is no constitutional
violation and no bar to using his subsequent statements.” Click
here for the complete decision.
“the very outer limit
as to what tactics law enforcement may employ when performing a custodial
interrogation”
In Martin v. State (February 2013) the
Supreme Court of Florida addressed the defendant’s claim that this confession
was coerced by the detectives who he claimed “relied upon
the following six coercive tactics to induce his confession: The police (1)
threatened him with the spectre of death row; (2) deluded him as to what he
could expect for himself and from a jury if he confessed; (3) deceived him as
to the amount of time he had to cooperate with law enforcement; (4) promised
their favorable testimony and use of their influence during his trial if he
cooperated; (5) promised to arrange a visit for him with his girlfriend if he
cooperated; and (6) exploited his religious beliefs by relying on a version of
the “Christian burial” interrogation technique.”
The Supreme Court ruled that “When considering
the facts, relevant standard of review, and totality of the circumstances, we
do not agree with Martin that the detectives coerced his confession.
Nevertheless, some of the techniques the detectives employed walked the line
that separates permissible from impermissible interview tactics, and we, as a
result, note that this case presents the very outer limit as to what tactics
law enforcement may employ when performing a custodial interrogation.”
The Supreme Court concluded, “The interviewing
detectives engaged in a variety of tactics to elicit information from Martin.
Given the specific factual circumstances addressed in this case, however, we do
not agree with Martin's contention that the interviewing detectives coerced his
confession, thus rendering it inadmissible. Law enforcement must be afforded
some leeway in how they conduct interrogations to ensure public safety and to
further… their
objective of locating a missing person who might still be alive. The interview
here cannot be characterized as so coercive as to render Martin's confession
involuntary. Although some of the tactics and techniques used by the detectives
may have been less than ideal, West and Wolcott did not directly threaten,
deceive, or delude Martin into confessing. Therefore, we affirm the trial
court's denial of Martin's motion to suppress.”
Click
here for the complete decision.
What
constitutes mental retardation?
In US v.
Wilson (February 2013) the US District Court, E.D.
New York examined the issue of what constitutes mental retardation. In this
case, the defendant, “a convicted
murderer of two undercover police officers, claims that he is mentally retarded
and therefore ineligible to receive the death penalty. For the reasons that
follow, he is incorrect.”
In examining this issue the court stated that,
“Two provisions of law forbid federal courts from imposing a death sentence
upon a person who is mentally retarded. First, the Federal Death Penalty Act
(“FDPA”), originally enacted by Congress in 1988 and
amended in 1994, provides that a “sentence of death shall not be carried out
upon a person who is mentally retarded.” ….. Second, the execution of mentally
retarded individuals violates the Eighth Amendment's ban on “cruel and unusual
punishments.”
However, “neither
the FDPA nor Atkins mandates a
particular definition of mentally retardation.” …. For these reasons, the court
relies largely on the clinical definitions of mental retardation promulgated by
the AAIDD and the APA, the two leading authorities on the subject. These
authorities were cited favorably in Atkins,
and nothing in either the FDPA or New York law prevents the court from relying
upon them. Most federal courts have taken the same approach when deciding Atkins cases.
In their opinion the curt stated that, “The
definitions of mental retardation set forth by the AAIDD and the APA are
“essentially identical.” …….
According to the APA, a diagnosis of mental retardation requires:
A. Significantly subaverage intellectual
functioning: an IQ of approximately 70 or below on an individually administered
IQ test....
B. Concurrent deficits or impairments in present
adaptive functioning (i.e., a person's effectiveness in meeting the standards
expected for his or her age by his or her cultural group) in at least two of
the following areas: communication, self-care, home living,
social/interpersonal skills, use of community resources, self-direction,
functional academic skills, work, leisure, health and safety.
C. The onset is before 18 years of age.
DSM–IV–TR at 49.
The AAIDD defines mental retardation (which it
now calls “intellectual disability” or “ID”) as follows: “Intellectual disability is
characterized by significant limitations both in intellectual functioning and
in adaptive behavior as expressed in conceptual, social, and practical adaptive
skills. This disability originates before 18.” AAIDD 2010
Manual at 1.
Putting these two clinical standards together,
the definition of mental retardation has three “uniformly accepted” requirements, … which the court will at times refer to as
“prongs one, two, and three.” These requirements are: (1) significantly subaverage
intellectual functioning; (2) significant deficits in adaptive behavioral
skills; and (3) onset of the condition before age eighteen. See AAIDD 2010 Manual at 7, 27, 41;
DSM–IV–TR at 49; …. The three prongs are each “indispensable” to a finding of mental
retardation.
In sum, both the FDPA and the Eighth Amendment
forbid the court from imposing a death sentence upon a person who is mentally
retarded. A person is mentally retarded only if he satisfies three necessary
requirements: (1) significantly subaverage intellectual functioning; (2)
significant deficits in adaptive behavioral skills; and (3) onset of those
limitations before the age of 18. In developing the nuances of these
requirements, the court will rely heavily upon modern clinical definitions of
mental retardation, particularly those of the APA and the AAIDD. At the same
time, the definition of mental retardation is ultimately a legal matter, and so
the court may—and will—exercise its own judgment as to the appropriate
definition of mental retardation in the Atkins
/FDPA context.”
Click
here for the complete decision.
Court
precludes Dr. Richard Ofshe from testifying as an expert witness on false
confessions
In Thompson
v. Warren (January 2013) the US District Court, E.D. Michigan found that
the petitioner’s claim that the trial judge's decision to preclude Dr. Ofshe
from testifying as an expert witness on false confessions or coercive
interrogation techniques deprived her of the right to present a defense was
unfounded.
The court stated that, “In the present case,
Petitioner is not entitled to habeas relief on his first claim because there is
no clearly established Supreme Court law which holds that a criminal defendant
is entitled to present expert testimony on the issue of false or coerced
confessions. Given the lack of holdings by the Supreme Court on the issue of
whether a criminal defendant is entitled to present expert testimony on the
issue of false confessions or coercive police interrogation tactics, the
Michigan Court of Appeals' rejection of Petitioner's claim was not an
unreasonable application of clearly established federal law…. Moreover, because
numerous federal courts on both direct review of federal criminal convictions
and on habeas review of state court convictions have ruled that a criminal
defendant's rights were not violated by the exclusion of such expert testimony,
Petitioner is not entitled to habeas relief because the cases cited above
clearly show that “fairminded jurists could disagree that the state court's
decision conflicts with” Supreme Court's precedents…. Moreover, in light of the
fact that Dr. Ofshe had never personally interviewed Petitioner or reviewed the
police reports in this case and did not know whether Petitioner was personally
vulnerable to coercive police techniques, the trial court's decision to exclude
Dr. Ofshe's expert testimony was reasonable. Finally, in light of the fact that
the jurors were able to watch the videotaped interrogations in their entirety
and Petitioner's counsel was able to cross-examine the detectives who conducted
the interrogations, Petitioner was able to present her defense to the jury that
her confession was unreliable. Petitioner is not entitled to habeas relief on
her first claim.” Click
here for the complete decision.
Juvenile
interrogation – voluntariness considerations; value of video recording
In People
v. Murdock (November 2012) the Illinois Supreme Court addressed the issue
of whether or not the defendant’s statements to the police were involuntary
because he, a juvenile, was interrogated as an adult. The State counters that defendant's
statements were voluntary and the trial court was correct in denying the motion
to suppress. Defendant concedes that Detective Mushinsky did not engage in any
behavior that would be considered coercive when applied to an adult. However,
defendant argues that he was a juvenile, 16, at the time of the interrogation,
and that the Supreme Court of the United States has recognized that “special
caution” is required when reviewing the voluntariness of a minor's confession. The court stated the following in their
opinion:
“The taking of a juvenile's confession is a
sensitive concern, and for this reason the greatest care must be taken to
assure that the confession was not coerced or suggested. … The confession
should also not be the product of adolescent fantasy, fright, or despair…. Illinois
courts have recognized an additional factor not applicable in cases involving
adults: the presence of a “concerned adult.” … This factor considers whether
the juvenile, either before or during the interrogation, had an opportunity to
consult with an adult interested in his welfare… In weighing this factor, courts also consider
whether the police prevented the juvenile from conferring with a concerned
adult and whether the police frustrated the concerned adult's attempt to confer
with the juvenile…
However,
a juvenile's confession or statement should not be suppressed merely because he
was denied the opportunity to confer with a parent or other concerned adult
before or during the interrogation…. The concerned adult factor is particularly
relevant in situations in which the juvenile has demonstrated trouble
understanding the interrogation process, he asks to speak with a concerned
adult, or the police prevent the concerned adult from speaking with him…. The
concerned adult factor is just one of the many factors to be examined when
determining whether a juvenile's confession was voluntary…
We agree with the trial court that Mushinsky
made no promises to defendant, and see no reason to disturb the trial court's
credibility determination on this point. On direct examination Mushinsky
testified that he made no promises of leniency to defendant in exchange for
information. When asked on cross-examination about whether defendant was
promised freedom if he “g[a]ve up the trigger man,”
Mushinsky replied that defendant's claim was “absolutely false.” Mushinsky
testified that he “already knew who both trigger men were by the time” he
talked to defendant. Defendant testified on direct examination that Mushinsky
promised him, before the video statement was recorded, that he could go home if he
“helped [Mushinsky] get the trigger man.” On cross-examination, however,
defendant conceded that on the videotape, when asked by Mushinsky if he had
been promised anything in exchange for providing a statement, defendant
answered “no.” Also, on direct examination, when asked if it was “really
brought home to him” that he did not have to talk to the police if he did not
want to, defendant said “no” and that Mushinsky never told him that. However,
on the videotape, when asked if he understood that he did not have to talk to
Mushinsky or answer his questions unless he voluntarily chose to do so,
defendant immediately and clearly answered “yes.” Defendant claimed he only said
“yes” on the videotape because he was tired and he thought Mushinsky would let
him go.
We also agree with the findings made by the
trial court regarding the videotape. Defendant claimed at the suppression
hearing that, when the video was made, he was “tired and scared.” Defendant
claimed he did not really understand the Miranda
rights Mushinsky was reading to him. Defendant's statements are belied by his
appearance on the videotape. Defendant's overall demeanor during the interview
is calm. Defendant does appear somewhat nervous at times, but no more nervous
than would be anyone else in his situation. Defendant appears able to
understand his situation and the questions posed to him. Defendant is able to
provide answers in a clear, narrative structure. Defendant does not appear on
the videotape to be in any sort of physical or mental distress. He does not
appear to be exhausted or in any sort of suggestive state. He does not appear
to misunderstand or be confused by any of the questions asked by Mushinsky.
Defendant never asks Mushinsky to repeat a question. We can find no reason,
based on the transcripts and videotape, to disturb the trial court's findings
of fact. The trial court's factual findings are not against the manifest weight
of the evidence.
Upon review, we agree with the trial court
that the totality of the circumstances indicate defendant's statements were
voluntary. We first consider defendant's age, experience, educational
background, and intelligence. Defendant, at 16, is on the older end of the
juvenile scale. While he did testify that he attended Greeley Alternative
School, it is not clear if he attended because of learning difficulties or
behavioral problems. Defendant, in his brief, notes that his presentence
investigation report showed he had only completed one semester of high school
and had poor grades. However, based on the evidence from the suppression
hearing and videotape, defendant was able to understand and give full, concise,
and clear answers to questions posed to him. While in his letter to Judge Lucas
defendant claimed to have never been in trouble with the police before, he did
not appear to misunderstand or be confused by Mushinsky's questions or the
discussion of Miranda rights. Thus, defendant appears to be of
normal intelligence and mental capacity for someone his age.
Second, there is no evidence of physical or
mental abuse. Defendant testified that Mushinsky made promises to him that he
would be released if he gave information on the shooter, but the trial court
found Mushinsky more credible on this matter than defendant,
and we see no reason to disturb the trial court's finding in that regard. Mushinsky
testified that he never made any threats toward defendant. Defendant was not
handcuffed during the interview. On the videotape, Mushinsky's tone with
defendant is conversational, not confrontational. There is no evidence that any
sort of police trickery was employed to extract information from defendant. The
absence of trickery weighs in favor of voluntariness.
Third, we consider defendant's physical
condition. Defendant did appear nervous at times during the videotaped
statement, but some nervousness on defendant's part is not inconsistent with
voluntariness. On the videotape, defendant does not appear to be sweating or
shaking. He does not appear to be in any type of distress. Rather, defendant
appears for the most part calm and alert. He does not appear tired or
exhausted. Mushinsky testified that defendant was offered food, drink, and the
opportunity to use the bathroom. Based on the videotape and
the testimony of Mushinsky, which the trial court found more credible than that
of defendant, defendant was in good physical condition during his detention and
interview.
Fourth, the length of defendant's detention
and interview does not render his statements involuntary. The seven-hour
duration of defendant's detention is somewhat lengthy. However, Mushinsky
testified that he only interviewed defendant from around 6:45 to 10 p.m. that
day, and that based on Mushinsky's recollection, defendant was in the interview
room from about 5:30 p.m. to 10 p.m. the day of September 19, 2001. Weighing in
favor of voluntariness, the interview was conducted in the evening hours,
instead of, for example, the very early morning hours, when sleep deprivation
can lead to a potentially more coercive environment. … Defendant's total time
of detention was less than 12 hours… Defendant
was detained for six to seven hours. The interview took place in the evening
and the actual interview only lasted three hours. The interview time was
reasonable and we cannot say it contributed to a coercive atmosphere that would
render defendant's statements involuntary.”
Click
here for the complete decision.
Court
rejects the claim that the “Reid technique” caused an involuntary confession;
jury rejects Dr. Leo testimony
In Shelby v. State
(April 2013) the Court of Appeals of Indiana rejected the defendant’s claim
that his confession was involuntary, in part, because the police used the “Reid
technique” to question him. The
court stated, “Considering the evidence favorable to the trial court's decision
and the reasonable inferences to be drawn therefrom, the trial court did not
err in concluding that the totality of the circumstances show that Shelby's
statement to the police was given voluntarily.”
In
this case, “Dr. [Richard] Leo was allowed to testify at length about police
interrogation tactics that can increase the risk of a false or coerced
confession. The jury was also presented with extensive evidence regarding the
police interrogations of Shelby in written, video, and audio formats, and could
observe whether his interrogation included the tactics and techniques that Dr.
Leo testified could lead to a false or coerced confession. Thus, the jury was
able to apply the concepts about which Dr. Leo testified to the facts and
circumstances of Shelby's interrogation and subsequent confession.” The jury rejected the suggestion that the
confession was false or coerced. Click
here for the complete decision.
The value of recording interrogations
In State
v. Swindler (February 2013) the Supreme Court of Kansas found the video
recording of the defendant’s interrogation compelling evidence that his rights
were violated. “In this case, Swindler
does not claim officers manufactured information or evidence in order to get
him to confess, …..
But he argues that the investigators' bait and switch about his ability to
terminate the interview and leave had the same coercive effect.
The
video in the appellate record makes it very clear that Swindler wanted to
exercise the power the investigators had initially guaranteed that he
possessed. From the time that he said “I'm done. I want to go home. I'm done,”
it is obvious that Swindler wanted to terminate the interview and leave the KBI
office. His girlfriend and two small children were waiting for him in the
hallway, and he expressed his desire to go to work to provide for his children.
He repeated that he was “done” and wanted to go home.
Swindler's first clearly inculpatory statement
was not made until he had said that he was confessing “just to get this over
with so I can go home.” Instead of being allowed to leave, the investigators
persisted in questioning him. In particular, we note that Attebury admitted he
left the room to consult with Hawkins to avoid an expected invocation of
Swindler's right to remain silent. Also, Hawkins met Swindler's repeated
efforts to do what he had been told he was free to do with “Well, tell me what
happened.” The message of these investigators was unmistakable: If Swindler
wanted to stop talking and leave, he needed to confess to raping L.C.
In short, the investigators set the rules of
engagement and then did not hesitate to break them as soon as they thought
Swindler might slip away without telling them what they wanted to hear. Under
the totality of these circumstances, the State cannot carry its burden to show
that Swindler's resulting oral confession, written confessions, and drawing
were given voluntarily under the Fifth Amendment. The district judge's refusal
to suppress the confessions and drawing was error.” Click
here for the complete opinion.
Faulty District Attorney strategy
re the advisement of rights
In People
v. Dunbar (January 2013) the Supreme Court, Appellate Division, Second
Department, NY, ruled the following:
“The office of the Queens County District Attorney
(hereinafter the District Attorney's office) instituted a program (hereinafter
the Program) under which arrested individuals are systematically interviewed
just prior to arraignment, or, in other words, immediately before those
individuals' indelible right to counsel would attach. As part of the Program,
the District Attorney's office formulated a script, containing a number of
statements, which is read to suspects before they are advised of their
constitutional rights as required under Miranda v.
Arizona (384 U.S. 436).
The principal issue presented on this appeal is whether this procedure is
effective to secure those individuals' fundamental constitutional privilege
against self-incrimination and right to counsel. We hold that it is not, and,
therefore, that the defendant's videotaped statement, made to members of the
District Attorney's office pursuant to the Program, should have been
suppressed.”
Te court went on to say, “More specifically,
suspects interviewed pursuant to the Program are advised of their Fifth
Amendment privilege against self-incrimination, but only after being told that
this is their “opportunity,” and then “only opportunity,” to, essentially,
refute what the prosecutor has been told by other individuals, to correct any
misperceptions or falsehoods, and to try to help themselves.
In essence, although suspects interviewed
pursuant to the Program are told, through the Miranda warnings, that they have the right to remain silent, the
preamble suggests that invoking that right will bear adverse, and irrevocable,
consequences. Such a suggestion conveys that suspects have a right to remain
silent only in the most technical sense. While the Miranda warnings also advise suspects interviewed pursuant to the
Program that anything they say can and will be used against them in court, the
preamble essentially suggests that anything they say will also be used to help
them. Therefore, the procedure followed under the Program is not “effective to
secure the privilege against self-incrimination”. Click
here for the complete decision.
Value of
recording interrogations to discredit defendant’s allegations
In Malloch
v. State (December 2012) the Court of Appeals of Indiana relied extensively
on the video recording of the defendant’s interrogation to evaluate the
credibility of his allegations.
Specifically, “Malloch
argues that Detective Lauer obtained a false confession with promises of
leniency or mitigated punishment… Malloch claims that Detective Lauer promised
leniency or mitigated punishment by comparing an employed person who steals a
cell phone accessory to an unemployed person who steals a can of chicken to
feed his family and then indicating that the latter was the kind of person “you're
gonna want to work [with].” ….. He also claims that Detective Lauer indicated
that he would let him off the hook if he confessed: “I don't want you to walk
out of here, I don't want to go to bed tonight thinking, I just let this ...
guy go out, who's gonna go out and—and victimize other people, okay? The only
way I can know that it's done, and over with, is by you [confessing and saying
it was a mistake].”…. Malloch further
points to Detective Lauer's response after the second time Malloch admitted to being
awake at the time he fingered C.P. At that time, Detective Lauer said he wanted
to be sure that Malloch was telling the truth and that “what's
going on right now are the important things. Whether you're man enough to
accept responsibility, and show a judge that you're remorseful, and how you
show remorseful is by saying, ‘Yes, this is what I did, it's never gonna happen
again, I learned my lesson.’ ”
These statements are too vague and indefinite
to constitute promises of leniency or mitigated punishment.
Malloch
also argues that his will was overborne by Detective Lauer's interrogation
tactics…. Malloch notes that Detective
Lauer asserted forty-nine times that Malloch was awake and consciously touched
C.P., that he urged Malloch to tell the truth but then dismissed him when he
claimed to be asleep, and that he frequently challenged Malloch's manhood in
light of his failure to take responsibility. Malloch also claims that he was
bullied by Detective Lauer when he was sarcastically told that he was a “great
guy,” an “[o]utstanding individual,” and a “sleep fondler” who “just need[ed]
some kind of sleep test.” ….
Malloch further asserts that he was worn down by Detective Lauer's accusations
of other disturbing acts, for example, that maybe Malloch had married Anita to
gain access to C.P., and that he may one day fall asleep with his son, wake up,
and “just fondle the heck out of [his] penis.”
Detective Lauer asserted, repeatedly and
falsely, that his investigation clearly established that Malloch intentionally
touched C.P. However, his deception does not necessarily render the confession
involuntary.
We have examined each of Detective Lauer's
statements that Malloch highlights on appeal. In considering the totality of
the circumstances, we also note that Malloch was thirty-five years old at the
time of the interviews, had an associate's degree in architectural engineering,
and supported his family with a job as a network engineer. Before each
interview, he was read his Miranda rights and indicated that he
understood them. As we concluded above, Malloch did not request an attorney,
and Detective Lauer made no promises in order to get the confession. Further,
there is no indication, nor does Malloch suggest, that he was intoxicated or
sleep-deprived. The second phase of the first interview, the only portion in
which Detective Lauer was confrontational in his questioning, lasted just under
an hour.
We acknowledge that Detective Lauer's
interrogation of Malloch was confrontational and intense in light of the
serious offenses being investigated. Nonetheless, after our own careful review of the video recordings (emphasis
added) and consideration of the totality of the circumstances, we conclude that
there is substantial evidence to support the trial court's conclusion that
Malloch's statements in both interviews were voluntary under federal and state
standards of review. Click
here for the complete decision.