Legal Updates: Fall 2011



Court rejects the proffered testimony of Professor Alan Hirsch; no basis to say the Reid Technique enhances the risk of unreliable confessions

In the case of US v. Jacques (May 2011) the United States District Court, D. Massachusetts, upheld the lower court's opinion to reject the testimony from Professor Alan Hirsch on the issue of false confession. In their opinion the court found that Professor Hirsch's credentials did not qualify him as an expert; that the proffered expert testimony to the effect that Defendant's confession was unreliable was both improper under the law and unnecessary in the specific factual context; and, that the proffered expert testimony to the effect that the Reid technique enhanced the risk of an unreliable confession lacked any objective basis for support whatever. Although Professor Hirsch insisted that "there is a wealth of information about the risks of the Reid technique," he could point to none.

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The value of video recording an interrogation - discredits defendant's allegations

In the case of State v. Lee (Sept. 2011), the Court of Appeal of Louisiana, First Circuit, upheld the trial courts decision to admit the defendant's confession, relying on the videotape of the interrogation to review the defendant's allegations. The court found that "The videotape of defendant's confession does not support his contention that the remarks improperly induced him to confess. Defendant gave the confession after being advised of his rights and indicating that he understood them. The videotape reflects that he was advised of the reason for the interrogation, and was questioned by the police for only approximately twenty-five minutes before confessing. No promises were made to him. In fact, Detective Favaron specifically told defendant that he wanted him to understand that he had no control over what would happen.

Under these circumstances, the detectives' statements that defendant should try to help himself by telling his side of the story did not amount to prohibited promises or inducements designed to extract a confession."

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Also see US v. Burton (September 2011) the United States Court of Appeals, Seventh Circuit, for another example of the value of recording an interrogation.

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Court rules that accident scenario is not coercive

In the case of People v. Batiste (Sept. 2011), the Court of Appeal, 1st District, Div. 3, California, the defendant claimed that his confession was coerced because it was the product of deception or implied promises of leniency by the officers. From the court's opinion:

"Batiste argued in the trial court that the officers made an implied promise of leniency when they suggested he might have acted in self-defense. That argument lacked merit. Here, as in People v.. Carrington (2009) 47 Cal.4th 145, 171, "suggestions that the ... homicide might have been an accident, a self-defensive reaction, or the product of fear, were not coercive; they merely suggested possible explanations of the events and offered defendant an opportunity to provide the details of the crime. This tactic is permissible. [Citation.] Moreover, any benefit to defendant that reasonably could be inferred from the substance of [the officer's] remarks was ' " 'merely that which flows naturally from a truthful and honest course of conduct,' " ' because the particular circumstances of a homicide can reduce the degree of culpability, and thus minimize the gravity of the homicide or constitute mitigating factors in the ultimate decision as to the appropriate penalty. [Citation]."

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Does a statement to the defendant that his children would be removed from the house unless he cooperated with the investigation render the confession inadmissible?

In the case Stanton v. Commonwealth (September 2011) the Supreme Court of Kentucky found that such a statement in the particular circumstances was not problematic. The court stated the following:

"In sum, the Fourteenth Amendment prohibits interrogation tactics calculated to overbear a suspect's will and to produce confessions involuntary in the sense that the suspect's capacity to choose has been distorted and critically impaired. The United States Supreme Court has held that threats to deprive a parent of his or her child unless the parent "cooperates" with investigators can run afoul of that prohibition. Here, however, unlike the cases in which a parent suspect has been threatened with an ultimate and speculative loss of a child and has been given to understand that "cooperation" will avert that loss, Stanton was merely informed that as matters stood the sexual abuse allegations against him would require those involved in the investigation to seek a court order separating his children from further contact with him, pending the investigation. This warning was not a speculative threat of ultimate loss of Stanton's children, but an accurate statement of what was apt to happen next in such cases, and as such it did not amount to overreaching by the state agents involved and did not pressure Stanton to such an extent as to impair his capacity to choose. Simply put, his admissions were not coerced by improper conduct."

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Defense decides not to call Dr. Ricard Leo as an expert witness

In the case People v. Gaono (September 2011) the Court of Appeal, Fourth District, Division 1, CA considered several issues. During the trial the defense suggested that they may call Dr. Richard Leo as an expert witness on the issue of false confessions. During their discussions about this, the trial judge made the following statements:

"If Doctor Leo were called, I would tell you that no way would I let him testify to whether or not he thought this particular case involved an unreliable or inaccurate interrogation. I would allow him to talk about the various factors, if I allowed him to testify at all. The factors that he's going to testify to, it seems, are common sense. So that's sort of the way I see it." The defense declined to call Dr. Leo as a witness.

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Court rejects claim that defense counsel was ineffective because they did not introduce an expert witness on the issue of false confessions

In the case Wiggins v. Ercole (August 2011) the US District Court, S.D. New York, rejected the defendant's claim that the defense counsel was ineffective because they did not introduce an expert witness on the issue of false confessions. From the court's decision:

Wiggins argues that his trial counsel, Hammer, was ineffective for failing to consult with, and call, an expert on the psychology of confessions. In support of this proposition, Wiggins offers an affidavit from Dr. Solomon Fulero, a psychologist and attorney who has testified as an expert in the psychology of interrogations and confessions around the country, including in New York.

In response, the State alleges that expert testimony on the psychology of confessions was inadmissible in New York courts at the time of Wiggins's trial, such that Hammer could not have been ineffective for failing to call such an expert.... The S 440 court found that "every reported New York State case, [with one 2005 exception,] rejects false confession testimony." (440.10 Decision, at 13.) Accordingly, it ruled, it would make "little sense to fault trial counsel for failing to offer expert testimony concerning false confessions."

It cannot be said that expert testimony would have created a strong likelihood of a different result. Accordingly, Wiggins's Petition should be DENIED on this ground.

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Court rejects the testimony of an expert in police procedure regarding the use of the Reid interview technique

In the case State v. Supanchick (September 2011) the Court of Appeals of Oregon upheld the trial court's decision to exclude the testimony of Howard Webb, described as an expert in police procedures, on the use of the Reid interview technique. The court stated:

Likewise, we conclude that the court properly excluded the testimony of Howard Webb--an expert in police procedure - regarding whether officers conducting the interview of defendant used the "Reid" interview technique.

As set forth above, to be relevant, evidence must make some fact of consequence more or less likely than it would be without the evidence. In this case, defendant contends that the evidence was relevant to whether his statements to the police during the interview were voluntary. However, as the court noted, the testimony was simply that the officers did not fully follow the "Reid" interview method, but that much of the interview was "in line" with the technique. The expert did not go through what the technique consisted of or explain why it might matter. He did not talk about what the "Reid" technique is designed for or explain that there was something improper about it. Like the trial court, we conclude that the information offered would not make any fact of consequence more or less likely. Furthermore, we note that there was video and transcript evidence before the jury and that bare testimony that the interview was, in part, like the Reid method, without more, would not assist the jury in understanding that evidence or in determining the voluntariness of defendant's statements.

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The "underwear bomber" did not have to be advised of his Miranda rights due to the public safety exception

In the case of US v. Abdulmutallab (September 2011) the US District Court, E.D. Michigan, ruled that the public safety exception allowed the interrogators to question the defendant without advising him of his Miranda rights. Here are the details from the court's opinion:



Before the 3:35 interview began, Special Agent Waters had learned from U.S. Customs and Border Protection Officer Steigerwald that Defendant had admitted that he had detonated an explosive device hidden in his underwear while on Flight 253 and that he was acting on behalf of al-Qaeda. He had also learned from other federal agents that an explosive device similar to the one used by Defendant had been used previously, although not on a plane. He also knew that the explosive device had no mechanical devices associated with it and was thus problematic because it could defeat airport security and, indeed, had done so in this instance. Mindful of Defendant's self-proclaimed association with al-Qaeda and knowing the group's past history of large, coordinated plots and attacks, the agents feared that there could be additional, imminent aircraft attacks in the United States and elsewhere in the world. For these reasons, Agent Waters questioned Defendant for about 50 minutes without first advising him of his Miranda rights.

Special Agent Waters reiterated that, before he interviewed Defendant, he was aware that Defendant claimed to be acting on behalf of al-Qaeda. The agents were also well aware that on September 11, 2001, al-Qaeda operatives hijacked four airplanes in an attack on the United States that killed almost 3,000 people. Mindful of Defendant's self-proclaimed association with al-Qaeda and knowing the group's past history of large, coordinated plots and attacks, the agents logically feared that there could be additional, imminent aircraft attacks in the United States and elsewhere in the world.

Defendant was asked questions that sought to identify any other attackers or other potentially imminent attacks--information that could be used in conjunction with other U.S. government information to identify and disrupt such imminent attacks before they could occur. The agents limited their questioning to approximately 50 minutes, at which time they had sufficient information to address the threat to public safety. The agents then concluded their interview and immediately passed that information on to other law enforcement and intelligence agencies worldwide, further underscoring that it was obtained for purposes of public safety, to deal with other possible threats.

The circumstances present at the time of Defendant's questioning fall within the pubic safety exception to Miranda recognized in Quarles. Accordingly, the fact that he was questioned by federal agents at U of M Hospital on December 25, 2009 before receiving Miranda warnings does not warrant suppression of his challenged statements. Doing so here was fully justified.

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Is a student in custody when asked by school officials to accompany the police for questioning?

In the case Kalmakoff v. State (July 2011) the Alaska Supreme Court outlined the criteria to determine custody for a student questioned by police. In this case a jury convicted Byron Kalmakoff of raping and murdering his cousin in the village of Pilot Point. Kalmakoff had just turned 15 when the crime was committed. On the day of his first interview the police told principal teacher, Jodi Mallonee, that she "needed to get Byron for the troopers so they could interview him." Mallonee called Kalmakoff out of class and Etuckmelra drove him and two other students to the city offices in the VPSO truck. All that the students were told was that the troopers needed to get some information from them. The trial court found on remand that Kalmakoff "was not told that he did or did not have to accompany the VPSO to the city offices, and that it is likely that he believed that he had to go." Kalmakoff was never told whether he had to answer the troopers' questions. Nobody contacted Kalmakoff's grandparents--who were also his adoptive parents--to inform them about the interview. The subject was not advise of his Miranda rights before making incriminating statements, which were not suppressed because the trial court determined that the defendant was not in custody during the initial interview.

The Alaska Supreme Court disagreed, finding that the totality of circumstances surrounding the first interview were such that the defendant should have been advised of his rights. The court stated the following:

Here, Kalmakoff was removed from school and transported to the interview by the VPSO in her official vehicle. The troopers had instructed the VPSO to bring Kalmakoff, along with two other students, to the city offices. Even if the use of the VPSO truck can be explained by convenience, Kalmakoff was still escorted to the interview by a law enforcement officer. Furthermore, the VPSO told Kalmakoff that the troopers needed to get some information from him, and neither the VPSO nor the principal teacher told Kalmakoff that he did not have to attend the interview or answer the troopers' questions. On remand, the superior court found that Kalmakoff likely believed that he had to go with the VPSO to the interview. Finally, the superior court found that neither the troopers nor school authorities informed Kalmakoff's grandparents about the interview and Kalmakoff was not given the opportunity to consult with or obtain the presence of a parent or guardian before the interview began. Even when Kalmakoff's grandmother came to the city offices, the troopers did not inform her that they were questioning Kalmakoff or invite her to join them in the interview.

The events before the interrogation thus weigh strongly in favor of a finding that Kalmakoff was in Miranda custody throughout the first interview. Facts intrinsic to the interrogation also support this conclusion. Kalmakoff had turned 15 only a few weeks before, and he had no previous history of delinquent acts or contact with law enforcement. Troopers Mlynarik and Stephenson were in uniform and visibly armed, and they did not tell Kalmakoff that he was free to leave or that he did not have to answer their questions. Instead, Trooper Stephenson repeatedly emphasized that Kalmakoff needed to tell them the truth. Moreover, the troopers' questions became pointed and accusatory well before the break in the interview where the trial court found that the interview became custodial, including a series of questions that directly implicated Kalmakoff in the murder.

Kalmakoff was in custody for Miranda purposes throughout the first interview and was therefore entitled to Miranda warnings prior to questioning. Because the troopers failed to administer those warnings, all of Kalmakoff's statements made during the first interview were obtained illegally and must be suppressed.

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What statements constitute a promise of leniency?

In the case Renteria v. Curry (August 2011) the US District Court, E.D. California, upheld the trial court's admission of the defendant's incriminating statements. From the District Court's opinion:

At the hearing on the motions, the prosecutor played, and the court reporter transcribed, a tape recording of that interview. Representative of the statements he characterizes as improper promises of leniency are a detective's comments that he could help himself by telling the truth and being "totally forthright" because it would "really look bad to the jury if the evidence doesn't match what you're telling us," that "it's going to go a lot better for you" if he were to cooperate, and that "[w]e can't help you unless you're honest." Representative of the statements he characterizes as improper threats of the death penalty are a detective's comments that "you need to help yourself right now because if you don't you're probably going down forever and you'll probably never see daylight again," that "the death penalty's not totally out of the question," and that "you're looking at a possible death sentence here." The record of the end of the interview shows that as a detective asked him to be "honest with us and tell us the truth" [Petitioner] interrupted him and said, "I want to talk to a lawyer." The detective replied, "I can't help you," and asked no other questions.

The court reject the defendant's claim that his confession was coerced by threats and promises, saying that "although Petitioner argues that the questioning was coercive, Petitioner presents no evidence that coercion led to Petitioner's statements or that Petitioner's will was overborne."

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References to religion during an interrogation do not result in a coerced confession

In the case Reeves v. State (August 2011) the District Court of Appeal, Florida, Fourth District found that "we agree with the trial court's reasoning that the detectives' use of religion to encourage the defendant to tell the truth did not make the defendant's statements coerced. The trial court's parenthetical descriptions of Walker, Smithers, and McNamee are accurate. In each of those cases, the supreme court and this court considered various religious references in the context of the totality of the circumstances and found that the confessions in those cases were voluntarily given and not coerced. Similarly in this case, the detectives merely played off the defendant's initial religious expressions of "God as my witness" and "The Lord's more powerful than anybody on this earth" to encourage him to tell the truth. "Encouraging or requesting a person to tell the truth does not result in an involuntary confession."

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Juvenile interrogation: The statement that you are "not going to be under arrest" and that "[y]ou're gonna walk out of here one way or the other. * * * You're not under arrest." was found to be coercive.

In the case In the Matter of M.E. Jr., Alleged Delinquent Child (August 2011) the Court of Appeals of Ohio found that the interrogator's statement "that M.E. would not be arrested was an improper promise of leniency. Clark told M.E. he was "not going to be under arrest" and that "[y]ou're gonna walk out of here one way or the other. * * * You're not under arrest." While Clark may have been attempting to represent to M.E. that he would not be taken into custody at the conclusion of the interview, his statement essentially conveyed that M.E. would not be under arrest at any time, regardless of any statements or confession he made. Such a statement could be objectively viewed as a promise that M.E. would not be criminally punished for his actions. "When the benefit pointed out by the police to a suspect is merely that which flows naturally from a truthful and honest course of conduct, we can perceive nothing improper in such police activity. On the other hand, if * * * the defendant * * * might reasonably expect benefits in the nature of more lenient treatment at the hands of the police, prosecution or court in consideration of making a statement, even a truthful one, such motivation is deemed to render the statement involuntary and inadmissible."

......the weight of the other factors supports a conclusion that M.E.'s confession was involuntary. M.E. is a juvenile and was only sixteen at the time of the confession. The record shows that he did not have prior criminal experience. In addition, evidence presented at the suppression hearing showed M.E.'s mental capacity is limited. Thompson testified that M.E.'s IQ was in "the 70s" and that he was "borderline mentally retarded ." Although Clark testified that M.E. appeared intelligent and was responsive to the questions, the trial court found M.E. has "diminished cognitive capability."

When considering the coercive nature of Clark's statement that M.E. would not be under arrest in conjunction with other factors, the totality of the circumstances render M.E.'s confession invalid.

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Court limits the testimony of expert witness Dr. Samuel Roll on the issue of false confessions

In the case US v. Ganadonegro (August 2011) the US District Court, D. New Mexico, limited the testimony of expert witness Samuel Roll on the credibility of the defendant's statements.

During a suppression hearing at the trial, Dr. Roll testified as follows: "Based on his examination of Ganadonegro and the tests he administered to Ganadonegro, Dr. Roll concluded that Ganadonegro has low verbal skills, because, although his overall intelligence is in the forty-second percentile, his verbal I.Q. is at the eighteenth percentile and his verbal comprehension is in the twelfth percentile... Dr. Roll also concluded that Ganadonegro has a low estimate of his personal worth and experiences low self-esteem and limited self-confidence...Dr. Roll concluded that Ganadonegro has a deficient in attention and concentration, and that his capacity to coordinate and organize data, and weigh it for contradictions and consequences, falls below most people's skill level...Dr. Roll concluded that Ganadonegro demonstrated impairment of reality-testing capacities in which he tends to misperceive events, and tends to form mistaken impressions of people and what their actions signify...Dr. Roll also concluded that Ganadonegro is susceptible to episodes of depression...Based on these conclusions, Dr. Roll concluded: "There are a host of language factors, cultural factors, and personality factors that would have increased the probability of ... Ganadonegro making false admissions. (emphasis added) Only an interview with the situational factors ameliorated and his personality dispositions taken into account could produce any reliable pattern of admissions on his part."

Upon their review of the case, the District Court ruled that "The Court will thus exclude Dr. Roll's testimony insofar as it relates to the credibility of Ganadonegro's statements in the interview..... the Tenth Circuit's opinion strongly suggests that Dr. Roll's testimony that there are a host of language factors, cultural factors, and personality factors that would have increased the probability of Ganadonegro making false admissions does little more than vouch for the credibility of Ganadonegro's statement, and thus encroaches on the jury's exclusive function to make credibility determinations.

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Does the suspect's invocation of their right to remain silent without the assistance of counsel preclude the police from attempting to obtain incriminating information from them? The Oregon Supreme Court said no.

In the case State v. Davis (June 2011) the Supreme Court of Oregon evaluated whether or not a suspect's invocation of their right to remain silent when they were not in custody, prevented the police from trying to obtain incriminating evidence against him in light of the state constitution. The court decided that the "Police informed defendant that they had received a report alleging that he had sexually abused his step-daughter. There is no suggestion that, at that time, he was in custody or otherwise in compelling circumstances; to the contrary, defendant concedes that he was not. A month later, defendant attempted to invoke his right against self-incrimination under Article I, section 12. Again, however, there is no suggestion that, at that time, he was in custody or otherwise in compelling circumstances; defendant concedes he was not. Some eight months after that, Detective Kaney employed a measure of subterfuge in obtaining, through pretextual instant messaging and telephone communications with the victim, self-incriminating statements from defendant. Yet again, however, there is no suggestion that, at that time, defendant was in custody or in compelling circumstances; he concedes again that he was not. There is no suggestion in this case that defendant's incriminating statements were induced by threats or promises or that in any other way defendant's self-incriminating statements were not voluntarily made. In short, there is no basis for concluding that defendant's self-incriminating statements were obtained in violation of Article I, section 12.

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Court rejects the testimony of expert witness Dr. Christopher Lamps on the issue of confession voluntariness

In the case T.C., a minor v. State (September 2011) the Court of Appeals of Arkansas upheld the trial court's decision to reject the testimony of expert witness Dr. Christopher Lamps. The defendant argued that "the trial court ignored crucial testimony from Dr. Christopher Lamps, who concluded that appellant did not freely, voluntarily, or intelligently waive his rights. The trial court found that Dr. Lamps's testimony was given in generalities that young children would not be able to understand the implications of waiving the right to an attorney. However, appellant argues that the doctor specifically testified that appellant was not able to make a knowing or intelligent decision in this case.

"...the trial court was free to reject Dr. Lamps's opinion on this or any issue. See Haynes, supra. The trial court listened to the testimony and viewed the same taped statements upon which Dr. Lamps based his opinions and concluded that the confession was not the result of any threats or inducements, but was given of appellant's own free will with knowledge of the circumstances. Further, coercion cannot be presumed because what was said to appellant between 6:45 p.m. and 10:20 p.m. was not recorded. There was no evidence that appellant was made any promises or subjected to any threats or coercion during this time.... Appellant asks this court to assume that a promise was made. However, this assumption flies in the face of the evidence, which included specific and unequivocal denials by all officers that appellant was promised anything. Accordingly, we affirm."

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A social worker's interview of juvenile at youth home, during which he confessed to crimes, was not custodial interrogation

In the case State v. Pearson (September 2011) the Supreme Court of Iowa ruled that even though the defendant had invoked his rights not to speak to the police, his confession to a social worker who interviewed him for a "status assessment" was admissible even though there was no advisement of rights. From the court's opinion:

"[C]ustodial arrest thrusts an individual into "an unfamiliar atmosphere" or "an interrogation environment ... created for no purpose other than to subjugate the individual to the will of his examiner." Many of the psychological ploys discussed in Miranda capitalize on the suspect's unfamiliarity with the officers and the environment. Murphy's regular meetings with his probation officer should have served to familiarize him with her and her office and to insulate him from psychological intimidation that might overbear his desire to claim the privilege.

Mahler [ the social worker] and Officer Michael had different roles that did not intersect until days after Pearson's confession. Michael was the Waterloo police officer investigating criminal charges against Pearson in the Weiss incident. Mahler's purpose for interviewing Pearson was to perform a status assessment for his pending CINA and juvenile proceedings in Buchanan County. There is nothing in the record indicating Mahler was an agent for law enforcement. Michael did not ask Mahler to interview Pearson; they spoke for the first time days after Pearson's July 15 confession. She refused to give Michael her statement until authorized to do so by her DHS supervisor.

We therefore conclude Mahler was not an agent or stalking horse for the Waterloo police; she had her own reasons, as Pearson's caseworker, to interview him. "When a state-agency employee is working on a path parallel to, yet separate from, the police, Miranda warnings are not required." Mahler's status as a DHS caseworker operating independently from the Waterloo police reinforces our conclusion that her interview of Pearson was not a custodial interrogation.

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