Legal Updates Summer 2013
Witness Credibility
In US v. Modir Trading (July 2013) the US District
Court, N.D. Illinois, denied the defendant’s motion to suppress his
incriminating statements. In this case Defendants Modir
Trading, Ali Mohammadi (Modir
Trading's owner and sole proprietor), and Ebrahim Hallaji (who is based in
the United Arab Emirates and not yet arrested) were charged with conspiring and
attempting to export a Series 446 Rate Integrating Gyroscope to Iran without a
license between February 2010 and April 2010.
When questioned by the investigators the defendant made incriminating
statements, which he later claimed should have been suppressed because he was
in custody and not advised of his Miranda
rights. The investigators testified
that he was not in custody. In making
their decision the court emphasized the importance of witness credibility,
stating the following:
“Resolution of a motion to suppress
is a fact-intensive inquiry in which the court must make credibility
determinations based on its observation of the witnesses' demeanor and the
testimony presented to it…. As a threshold matter, the court must determine
whether to credit the testimony of the agents or Mohammadi,
who offered competing and at times conflicting versions of the events on April
21, 2010.
The court has carefully evaluated
the demeanor and testimony of the witnesses. The agents testified credibly and
for the most part consistently with each other and the documentary evidence…Mohammadi, on the other hand, testified that, when under
pressure, such as on April 21, 2010, his mind goes blank and he cannot
concentrate on what is going on. At the same time, however, he testified in
precise detail as to exactly what occurred on that day, couching much of his
testimony in legal terms that would support a finding of custody or
involuntariness…Mohammadi
cannot have it both ways, claiming to remember every detail for purposes of the
custody inquiry while attempting to deny any understanding for purposes of the
voluntariness inquiry. Further, his explanation that he was unfamiliar with the
legal system and did not understand his rights, including the right to remain
silent, is undercut by his prior encounters with law enforcement, which
included spending time in jail, and the fact that he is well-educated, a
college graduate who was confident enough in his abilities to start his own
business. After carefully considering the testimony of the witnesses, assessing
their credibility, and reviewing the submitted evidence, this court finds the
agents' testimony to be more credible than that of Mohammadi.”
Click
here for the complete decision.
Statement’s
such as “people who were honest with the police would be helped differently
than those who lied about their guilt” led to an inadmissible confession
In Kohland v. State (June 2013) the Court of Appeals of Iowa ruled in favor
of the defendant’s claim that his counsel was ineffective because he failed to
move to suppress his confession. In
their analysis the court considered the statements that the investigator made
to the defendant during the interrogation, and in their discussion of the issue
of an admissible confession, stated the following:
“The evidentiary test was best set
out in State v. Hodges, 326
N.W.2d 345 (Iowa 1982). In Hodges, our supreme court
indicated a confession must be suppressed on the basis of promises of leniency
where the officer tells the defendant what advantage is available to be gained
from truthfulness… Officers are allowed to tell a defendant that being honest
is better than withholding the truth, without crossing the line and mandating
exclusion of the confession…. When police indicate they will inform the county
attorney of the defendant's cooperation, without more, there is no basis for
exclusion under the evidentiary test…..
“In Hodges, the officer
induced a confession by indicating the defendant would receive “better
treatment and less severe punishment” if he confessed…. A promise that no
charges would be filed was similarly impermissible…. In Madsen, promises
that an advantage could be gained, the defendant could “go along with his
life,” and that publicity could be avoided, failed the evidentiary test…..
“In the present matter, Cpl. Reid
offered help and indicated people who confessed were helped differently than
those who withheld the truth. Cpl. Reid repeatedly instructed Kohland he would be free to leave at the end of the
interview regardless of what he said and truthfulness would allow Kohland to fix any mistake. More disturbing, however, was
when Cpl. Reid stated a confession would mean the case would proceed
differently than if it continued as a criminal investigation. The obvious
implication from this statement is Kohland's
cooperation would prevent the case from being investigated as a criminal
matter.
“…… We find these statements are the
equivalent of a promise for better treatment, as found in Hodges. The
same can be said of Cpl. Reid's assurance that Kohland
would be set free following the interview…. Cpl. Reid's statement that the case
would be treated differently than a criminal investigation is impermissible and
amounts to an assurance that no criminal charges would follow… These statements
go far beyond simply informing the prosecuting authorities of the defendant's
cooperation and amount to an identifiable benefit being promised.”
Click here
for the complete decision.
Kansas
Supreme Court recommends electronic recording of interrogations
In the case State v. Randolph (May 2013) the Kansas Supreme Court recommends
the electronic recording of interrogations from the beginning of the process
through the confession. In this case, the defendant claimed that his
confession was coerced. In considering
the issue the Supreme Court stated that, “In determining whether the statement was the
product of an accused's free and independent will, a trial court looks at the
totality of the circumstances surrounding the statement and determines its voluntariness
by considering the following nonexclusive list of factors:
“ ‘ “(1) the accused's mental condition; (2)
the manner and duration of the interrogation; (3) the ability of the accused to
communicate on request with the outside world; (4) the accused's age,
intellect, and background; (5) the fairness of the officers in conducting the
interrogation; and (6) the accused's fluency with the English language.”
In this case only the confession was recorded
– not the interrogation. As a result,
“Randolph emphasizes that “[w]hether the 15–minute
recorded statement ... was voluntary or involuntary was squarely dependent on
what happened during the 1–hour–15–minute interrogation that preceded it.” He
argues a recording of the entire interview would be more reliable evidence than
the conflicting testimony of Randolph and Cantwell regarding what was said
during the interview and “the formal recorded confession, and the unrecorded
interrogation that preceded it, are so inextricably intertwined that the
voluntariness of the first cannot be determined without knowing precise details
of the second.”
“Certainly, a recording would be more accurate
than most human's memories. And the State, by not recording the entire
interview, has unnecessarily raised a negative inference that it has something
to hide. It also risks a ruling that the recording is not admissible because it
does not accurately reflect the entire interview. Consequently, the better practice and the one we advise is for law
enforcement officers to record the entire interview with a suspect when they
are planning to record parts of the interview and recording equipment is
available. (emphasis added)
“Nevertheless, Randolph does not cite any authority
for his argument that a trial court does not have a sufficient basis for making
findings following a Jackson v. Denno hearing if a portion of an interrogation is not
recorded. Certainly, the lack of a recording does not make this case unique
from numerous cases considered by this and other courts. Nor is there anything
unique about the specific facts of this case. The State presented the trial
court with Cantwell's testimony regarding both portions of the interrogation,
and Randolph had the opportunity to cross-examine Cantwell. The evidence
submitted was sufficient to overcome the negative inference the State
unnecessarily created and to meet the State's burden of proof. In addition,
Randolph's trial testimony mitigates any suggestion he was coerced into a false
confession by Cantwell's suggestions.”
Click
here for the complete decision.
Court
rules that polygraph examination is not a search
In US v.
Davis (May 2013) the US Distrit Court, D.
Montana, ruled that a polygraph examination was not a search within the meaning
of the Fourth Amendment.
“Mr.
Davis argues the a polygraph exam is a “search” within the meaning of the
Fourth Amendment, as it detects and records personal physiological data not
readily observable. …. Mr. Davis contends that his polygraph exam ran afoul of
the Fourth Amendment because it was conducted without a warrant and without Mr.
Davis's informed, voluntary consent. Mr. Davis argues that his consent to take
the polygraph was based on duplicity, and therefore not informed and voluntary.
Because Mr. Davis's confession was derived from the polygraph, it is “fruit of
the poisonous tree” and should be excluded, he argues.
“The recent District of Montana case Unites States v. Alvarez, CR–12–96, considered legal issues and
facts almost identical to those presented here. Alvarez held in the clearest terms that “A polygraph examination is
not a Fourth Amendment search.” (citing Stehney, along with unpublished opinions from
courts in the Ninth Circuit). Alvarez
also stated that even if the polygraph was a search, there was no
constitutional violation because the defendant consented.
“In light of Alvarez, Mr.
Davis's argument that a polygraph is a search fails. Therefore Mr. Davis's
Fourth Amendment rights were not implicated. However, testimony at the
suppression hearing made clear that Mr. Davis did not event take a polygraph
examination, but only participated in an interview in anticipation of the
exam…Even if a polygraph were a Fourth Amendment search and even if Mr. Davis
had taken one, his consent would obviate a constitutional violation.
“Mr. Davis argues his confession should be excluded under the Fifth
Amendment because it was involuntary. He argues that he was overborne by a “sophisticated, and at times repetitive” polygraph
examination designed to elicit a confession, rather than merely to determine
whether Mr. Davis was truthfully answering the questions. The examination
process carefully and subtly manipulated Mr. Davis into confessing, he argues.
The confession therefore was not voluntary and should be suppressed, according
to Mr. Davis.
“In Alvarez,
the defendant's confession was deemed voluntary because the defendant agreed to
go to the FBI office and drove himself there, was not confined during the exam,
confirmed verbally and in writing that his statements were voluntary, signed
forms informing him of his rights, and was an adult with no indication of low
intelligence.
“The same factors exist here. Mr. Davis agreed
to the exam, had a friend drive him to it, signed waivers, and acknowledged on
a recording that his confession was voluntary. He is an adult who graduated
high school and attended some college. He testified that he was not physically
restrained or punished. The entire process was half as long as the questioning
in Alvarez. Under the totality of the
circumstances, the confession was clearly voluntary.
Click
here for the complete decision.
Court rejects the testimony of
Dr. Bruce Frumkin
In State v. Ackerman (July 2013) the Court
of Criminal Appeals of Tennessee upheld a lower court’s decision to exclude the
testimony of Dr. Bruce Frumkin on the defendant’s
susceptibility to suggestion. In their
decision the trial court stated that, “Doctor Frumkin
would not be permitted to testify about the defendant's susceptibility to
suggestion because of “the loose connection between D[octor]
Frumkin's knowledge and experience and the facts in
this case” and because his testimony would not substantially assist the trier
of fact. The court also concluded that Doctor Frumkin's
testimony would “lead to confusion and misunderstanding.”
Click
here for the complete decision.
Low
score on IQ tests does not mean the suspect is incapable of making a voluntary
confession
In Winters v. State (May 2013) the Supreme
Court of Arkansas upheld the admissibility of the defendant’s confessions, even
though he had an IQ of 84, which is in the category of
borderline intellectual functioning.
In this case the “Appellant contends
that the circuit court erred in denying his motion to suppress certain
custodial statements he made to police….that the officers made various promises
to him, repeatedly preyed upon his concerns for his family and for giving the
victims a proper burial, and then finally, due in part to his borderline
intellectual functioning, coerced a confession.
In reaching their decision the Supreme Court
stated the following:
“Finally,
we consider Appellant's argument that his relatively low level of education and
intellectual functioning contributed to the officers' ability to coerce a
confession from him. The record reveals that Appellant was twenty-nine years
old when he gave the statements, that his formal education ended at either the
sixth or eighth grade, and that he obtained a G.E.D. while incarcerated.
Appellant's expert witness, Dr. J. Michael Wood, testified that his full-scale
IQ was 84, which is in the category of borderline intellectual functioning. Dr.
Wood stated that this is in the low-average range and places him in the 14th
percentile, meaning that 86 percent of the population has a higher IQ than
Appellant. Dr. Wood explained that his full-scale IQ score was the result of
fourteen tests in seven areas and that Appellant scored significantly lower in
one of these seven areas—processing speed. Dr. Wood opined that processing
speed is the ability to think efficiently and fluently, especially under
pressure situations. The circuit court acknowledged Appellant's IQ score and
even expressly deferred to the experts on this issue, despite the court's
contrary observations of Appellant during the interviews. But, as noted by the
circuit court, Appellant was no stranger to the criminal-justice system, having
been interviewed, and giving voluntary statements perhaps as many as six times,
concerning crimes unrelated to the Bishop murders. Three officers who
previously interviewed Appellant testified at the suppression hearing, and
although one of them noted Appellant could not read or write well, all agreed that Appellant understood and
waived his rights and gave a statement voluntarily and knowingly. We note that
this court has held that a low score on IQ tests does not mean the suspect is
incapable of making a voluntary confession.
In summary, our review of the totality of the
circumstances indicates that the circuit court's ruling to deny the motion to
suppress was not clearly against the preponderance of the evidence.”
Click
here for the complete decision.
The
value of video recording – intoxication and sleep deprivation
In State v. Strozier (July 2013) the South
Dakota Supreme Court upheld the admissibility of the defendant’s confession,
who claimed that he was too intoxicated to make a knowing and intelligent
waiver of his Miranda rights. This
case clearly illustrates the value of electronically recording an interrogation
to diffuse such claims. In their opinion
the Supreme Court stated the following:
“There is also no evidence that Strozier's level of intoxication impaired his ability to
waive his rights. “The test of voluntariness of one who claims intoxication at
the time of waiving his rights ... is whether the individual was of sufficient
mental capacity to know what he was saying—capable of realizing the meaning of
his statement—and that he was not suffering from any hallucinations or
delusions.”…. Here, Strozier
does not contend that he did not know what he was saying or that he was having
hallucinations or delusions. On the contrary, a review of the video recording (emphasis added) indicates that he
understood what he was saying, and he was not suffering from hallucinations or
delusions. This record reflects that even though Strozier
had consumed alcoholic beverages, he was not so intoxicated as to be incapable
of waiving his rights.”
The court
also stated, “Although Strozier
also claims that he was deprived of sleep, he never indicated during the
interrogation that he was tired. On the contrary, the video recording shows (emphasis added) that he was alert and
animated. We find that “there is no evidence that [Strozier]
was so overcome by fatigue or stress as to prevent” a valid waiver of his
rights…. Further, our review of the interrogation's video recording (emphasis added)
reflects that Strozier understood Detective Carda's advisement of rights and the consequences of
waiving them. We conclude that under the totality of the circumstances, Strozier voluntarily, knowingly, and intelligently waived
his Miranda rights.
Click
here for the complete decision.
The
value of video recording – Spanish speaking defendant and intoxication
In State v. Palacios-Rodriguez (Argued October 2012 Decided 2013) the Superior
Court of New Jersey, Appellate Division, upheld the defendant’s confession, relying extensively on the trial court
judge’s review of the videotape of the interrogation. (emphasis
added) In this case the “Defendant contends that his confession should have
been suppressed on several theories, namely that he was illiterate and
non-English speaking and therefore did not understand rights; he was so
intoxicated that he was incapable of knowingly and voluntarily waiving his
rights during the police interview…..”
The Superior Court stated in their
opinion, “As noted, the motion judge viewed the videotape, and with regard to
this portion of the interview, the judge stated:
I was very impressed with ... the
amount of time that was spent with defendant by [Brazofsky]
in terms of hi going over the form with this defendant, the Miranda form, even
to the point of explaining what a yes and no meant, even to the point of
explaining to him the checklist, even to the point of explaining to him the
ramifications of each question, which was explained in Spanish to this
defendant. And I must say from looking at the video ..., it appear to me that
no[t] only was the language communicated to in a very correct manner—there's
nothing to indicate that didn't understand the terminology that being explained
to him through the interpretation....
“Likewise, in the case at bar, the
trial court recognized that defendant exhibited some degree of intoxication,
however, the court determined that defendant knowingly waived his rights. As
evidenced by the Miranda hearing proceeding and the court's observation of the
interview tape, defendant appeared to be under the continuing influence of
alcohol yet was capable of communicating with the detectives and was responsive
in answering questions.”
Click
here for the complete decision.
California
Supreme Court upholds exclusion of testimony by Dr. Richard Leo – the proffered
testimony was “extremely speculative”
In People v. Linton (June 2013) the Supreme Court of California upheld
the lower court’s decision to exclude the testimony of Dr. Richard Leo. From the Supreme Court’s opinion:
“Prior to trial, defendant filed a
motion to introduce the expert testimony of social psychologists Dr. Richard Ofshe or Dr. Richard Leo regarding police interrogation
techniques and false confessions…. Defendant asserted such testimony was
relevant to determine the voluntariness and trustworthiness of the statements
he made at the police station. At trial, defendant sought to introduce the
testimony of Dr. Leo.
“In a declaration submitted by
defendant to the trial court in connection with his efforts to introduce this
testimony, Dr. Leo averred that “[c]ontrary to public
myth and mis-perception, it is well documented that
police interrogators can and do elicit false confessions in response to common,
psychological methods of interrogation.” According to Leo, research has
established that “certain police interrogation techniques are correlated with
the likelihood of a false confession” and such “research findings are beyond
the common understanding of the lay person.” Leo's proposed trial testimony
would address “the following general topics: the use of influence,
persuasion and coercion during interrogation; how certain police interrogation
techniques affect the decision-making of custodial suspects; why certain
psychological techniques are coercive and their likely effects; how and why
contemporary police interrogation techniques can lead guilty suspects to make
the decision to confess; how and why contemporary police interrogation
techniques can lead the innocent to make the decision to confess; and how to
apply generally accepted principles to evaluate the reliability of confessions
statements.”
“The prosecutor opposed the defense
motion, arguing there was no foundation for such testimony because defendant
had not recanted his confession and because there was no other evidence that
his confession was false. The prosecutor also contended that the defense had
failed to show the subject matter was a valid, accepted area of expertise or
that the testimony would assist the jury.
“The defense countered that a
recantation was unnecessary before an expert…could be called, that it would be unconstitutional to
require defendant to testify his confession was false before the testimony
could be admitted, that there was sufficient evidence of falsity in the
testimony from both pathologists that Melissa could not have been strangled with
the headphone cord in the manner defendant described, and that testimony
regarding the general factors that might lead to a false confession was beyond
the knowledge of an average person. The defense repeated the claims that
express promises of leniency had been made to defendant and that the
interviewers' questioning was coercive in light of defendant's personal
characteristics.
The trial court ultimately excluded
Dr. Leo's testimony under Evidence Code section 352. Specifically,
the court concluded the proffered testimony was “extremely speculative” because
there was no “basis or foundation” to indicate defendant's confession was
false. The court noted defendant was not required to testify, but there was no
evidence defendant had otherwise recanted his confession and the pathologists'
testimony and the physical evidence did not establish any falsity of
defendant's interview statements because the testimony and evidence were not
incompatible with defendant's explanation of how he choked Melissa. Therefore,
the probative value of Leo's testimony, “if any,” was substantially outweighed
by its undue consumption of time.”
Click
here for the complete decision.
Attorney
not negligent for deciding not to use false confession expert at trial
In Wright v.
Commissioner of Correction (June 2013) the Appellate Court of Connecticut
upheld the lower court’s decision that the defense attorney’s conduct was not
deficient
because
he decided not to use a false confession expert (Dr. Richard Leo) at trial. From their opinion:
“The petitioner claims that the court improperly concluded…
that Moniz had not rendered ineffective assistance at trial despite the fact
that he failed to present testimony related to false confessions from Richard
Leo, an expert witness retained by the defense at the time of trial. The
petitioner alleged that had Moniz taken these steps at trial, they would have
cast doubt on his confession and affected the outcome of the trial.
“Also, the petitioner presented
testimony from Leo, a law professor with expertise in the areas of
interrogation, psychological coercion, false confessions and wrongful
convictions. In relevant part, Leo opined that people with cognitive
impairments, mental illnesses or those who are highly compliant, highly suggestible,
weak-willed or submissive, are vulnerable to making false confessions. Leo also
opined that there is a risk that police, in coercing a suspect to confess to a
crime, unintentionally may “contaminate” the suspect by providing him with
facts about the crime that are not generally known by the public. Later, the
suspect's reference to these facts, learned only during the course of
interrogation, may make his confession appear to be based on his firsthand
knowledge of the crime. Leo testified that police techniques are designed to be
stressful,…
manipulative and deceptive and that, in false confession scenarios,
unintentional contamination of suspects occurs frequently.
“Leo testified that he reviewed
information about the present case that he obtained from Moniz. Leo testified
that there was evidence that the police used coercive techniques when they
questioned the petitioner by promising him that he could go home if he provided
a satisfactory statement, yelling at him, accusing him of committing the crime,
confronting him with evidence concerning the crime and providing him with
information about the crime. Leo opined that the petitioner learned all of the
information about the crime from the police. Leo testified that he was hired by
Moniz and that he testified at the suppression hearing prior to the underlying
trial. He did not testify at the underlying trial, although he was available to
do so.
“In denying the petition for a writ of habeas corpus, the
court stated: “[T]he petitioner's claims [regarding Moniz' failure to pursue
psychiatric or psychological testing or to call Leo as a false confession
expert at trial] merely challenge trial counsel's strategy in contesting the
confession. This is not a case in which trial counsel missed the key issue.
Moniz filed and vigorously pressed a motion to suppress, even calling Dr. Leo
as an expert on false confessions, which was unusual for that time, ten years
ago, in our legal history.... Moniz then made his main theory of defense at
trial to be that the confession was false. What the petitioner is doing now is
launching highly technical attacks on the precise strategy that Moniz employed
in raising this issue.”
Click
here for the complete decision.
Improper interrogator behavior
In State v. Garcia (April 2013) the Supreme Court of Kansas reversed
the defendant’s conviction, finding that the interrogator’s behavior led to a
coerced confession.
The Supreme Court stated that, “Garcia
contends that the district court erred in finding that the totality of the
circumstances established that his confession to participating in the robbery
was freely and voluntarily given. He emphasizes two circumstances that gainsay
voluntariness: (1) The interrogating officers withheld requested medical
treatment and pain medication for Garcia's gunshot wound
until the interrogation was completed; and (2) the State used promises of
leniency to induce the confession. We agree with Garcia; the manner in which his
ultimate confession to robbery was obtained was unconstitutionally infirm.
“We turn now to Garcia's specific complaint that the officers denied
him medical treatment for the purpose of inducing a confession. The district
court considered Garcia's gunshot wound
and accompanying pain only as it related to his ability to lucidly communicate
with the law enforcement officers. In that regard, the district court was
willing to accept the fact that Garcia was in pain, so long as the pain was not
so acute as to affect his ability to know what he was doing or saying. But a knowing confession is not a voluntary confession if it is coerced, i.e., if it is not the product of free
will. The inquiry, then, is whether the officers' withholding of medical
treatment influenced Garcia's decision to confess to the robbery. If law enforcement
officers make an accused endure pain, even less than debilitating pain, until
the accused gives a statement that the officers will accept, the voluntariness
of that confession is, at best, suspect. The record indicates that was the
circumstance here.
“As previously noted, Garcia requested medical treatment within the
first half hour of his detention. The detective responded, “Give me a couple
minutes,” and said he just wanted to know who was with Garcia on the night of
the incident. When Garcia cursed at his pain, the detective responded by saying
that Garcia should “hang on, just give me about five seconds here and answer
this question.” But after Garcia answered that question, the detective
continued with 18 more questions before asking: “You need something,
you want somebody to take a look at that?” Although Garcia answered in the
affirmative, the detective left the interrogation room and returned to resume
questioning without providing pain medication or medical treatment. Shortly
thereafter, the detective asked why Garcia had not gone to the doctor after
being shot, to which Garcia responded that he “was just paranoid, sir, to be
honest with you.” A little later, the detective asked if the bullet was still
in Garcia's body and inquired as to whether there was one hole or two. Although
Garcia's response was equivocal, the detective moved right back to questioning
before leaving the room again.
“We discern that certain things are patently obvious from the words
and actions of the law enforcement officers conducting Garcia's interrogation.
First, the officers knew that Garcia had been shot in the foot with a firearm;
that he probably still had the bullet inside his body; that he had not received
professional medical treatment for the wound;
and that he was experiencing pain from the injury at the time of the interrogation.
Next, Garcia was not going to be provided any medical attention or pain
relieving medication until the officers had completed their questioning and
took him to the hospital to retrieve the bullet for evidence. Further, the
officers appeared unlikely to complete their questioning until Garcia gave them
the statement that they believed to be true, which was that Garcia participated
in the robbery.
Regarding the issue of whether or not a promise of leniency was
offered to the defendant, the Supreme Court stated that, “Law enforcement
coercion can be mental as well as physical…. It is well settled that an
extrajudicial confession will not be received in evidence unless it has been
freely and voluntarily made. If it has been extorted by fear or induced by hope
of profit, benefit, or amelioration, it will be excluded as involuntary…. In
order to render a confession involuntary as a product of a promise of some
benefit to the accused, including leniency, the promise must concern action to
be taken by a public official; it must be such that it would likely cause the
accused to make a false statement to obtain the benefit of the promise; and it
must be made by a person whom the accused reasonably believed had the power or
authority to execute it…. Moreover, there must be a link between the State's
coercive conduct and the confession.
“The foregoing exchange did not stop short of promising a benefit to
Garcia in return for his confession to robbery. The promised benefit was clearly
stated: “They're not going to book you for murder.” That was the same carrot
that the officers had been unsuccessfully dangling in front of Garcia for
hours.
“The promise concerned action to be taken by a public official, i.e., the law enforcement officer who
would process Garcia into jail. The promise was one that would likely cause the
accused to make a false statement to obtain the promised benefit, i.e., the ability to make a murder
charge and accompanying life sentence go away would be a strong motivator for
prevarication.
“The law enforcement officers' coercive tactics and promises of
leniency, in the context of the circumstances of the entire interrogation,
convince us that the confession here was not a product of the accused's free
will, i.e., was not voluntary.
Accordingly, we find that the district court erred in refusing to suppress the
defendant's confession.”
Click
here for the complete decision.
Court excludes the testimony of Dr. Richard Ofshe on false confession issues – no requirement to record
interrogation
In Commonwealth v. Harrell
(April 2013) the Superior Court of Pennsylvania upheld the lower court’s
decision to exclude the testimony of Dr. Richard Ofshe. From their opinion:
“Prior to trial, a Frye hearing was conducted
to determine whether expert testimony would be allowed on the subject of false
confessions. The Court held a two-day hearing and took testimony from “experts”
in the field of false confessions and from others who refute the validity of
such scientific endeavors. The Court determined that evidence of false
confessions was not sufficient to pass the Frye
standard and precluded the admission of such evidence at trial.
Recently, in Commonwealth
v. Szakal,
50 A.3d 210 (Pa.Super.2012), 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.”
“... appellant
argues that his due process rights were violated by the failure to record his
interrogation and confession. Appellant argues that the failure to record his
interrogation deprived him of an opportunity to establish that his confession
was involuntary and the product of police coercion. According to appellant, the
police deliberately failed to record the interrogation so… that
appellant would be unable to contest the voluntariness of his confession by
examining the surrounding circumstances including the police tactics employed,
the length of questioning, promises made, etc.
(Appellant's brief at 24–25.)
In Commonwealth v. Craft, 447 Pa.Super.
371, 669 A.2d 394 (1995), 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.”
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A
promise of leniency: “[e]verybody gets a clean slate when they turn 17”
“Furthermore,
we believe the manner in which the police conducted the recorded, fifth
interview weighs toward a finding that the defendant's confession was
involuntarily given. Specifically, Nicodemus made misleading promises of
leniency to the defendant during the recorded, fifth interview.
“To
constitute an offer of leniency that renders a confession inadmissible, a
police statement must be coupled with a suggestion of a specific benefit that
will follow if the defendant confesses.” …. At the time of the defendant's
offense, a juvenile who was at least 15 years old at the time of the offense
and who was charged with first degree murder had to be tried as an adult….
While we acknowledge that the defendant had not been charged before he
confessed and that it is the prosecutor who has the discretion to decide what
charges to bring against an accused… we believe the clear import of Nicodemus's
statements to the defendant was to assure him that he would remain in juvenile
court no matter what crime he was charged with in connection with the shooting
of Villagomez. Nicodemus stated to the defendant:
“People
make mistakes. You're a juvenile. Juvenile system's very forgiving, very
understanding when people mess up. Crimes that you commit when you're a
juvenile you're not even tried as an adult sometimes. You don't even get the
maximum penalties. You don't even do that. Everybody gets a clean slate when
they turn 17. You're lucky that you're less than 17, okay? But in order to get
those breaks, to get those chances, you have to show some remorse, some
compassion, and not just be *
somebody that doesn't have a conscious [ sic ], somebody that throws other people's names out there.
You gotta be somebody that takes responsibility for
their actions because if you don't do that, you're never gonna
get any breaks. No one's ever gonna look at you as
this kid's worth taking a chance on.”
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Court
allows Dr. Richard Leo to testify on false confession issues
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Fish
and Game officers did not have to make an advisement of rights on a roadside
stop
“Soumas and Bogar also acted
appropriately in the course of the stop. When Hall and Liermann
returned to the truck, Soumas approached without his
weapon drawn. Soumas saw that the men were wearing
camouflage and had blood on their clothes. Soumas
asked the men to identify themselves and tell him what they were doing. Given
that it was reasonable to suspect Hall and Liermann
of shooting two elk out of season, Soumas' inquiry
was clearly related in scope to the justification for its initiation.”