Legal Updates Fall 2012




Court finds that the research by false confession expert Dr. Richard Leo utilized "unreliable methodology" and was prone to inaccuracy or bias and, in nearly all instances, had not been subjected to the rigorous standards of scientific peer-review; and resulted in conclusions consistent with Leo's own preconceived beliefs rather than testable results consistent with an objective, scientific process

In the case People v. Kowalski (July 2012) the Michigan Supreme Court ruled as follows:
"The circuit court excluded the testimony of two experts regarding the occurrence of false confessions and the police interrogation techniques likely to generate them as well as the psychological characteristics of defendant that allegedly made him more susceptible to these techniques.

We hold that the circuit court did not abuse its discretion by excluding the expert testimony regarding the published literature on false confessions and police interrogations on the basis of its determination that the testimony was not reliable, even though the subject of the proposed testimony is beyond the common knowledge of the average juror."

From the Supreme Court's opinion:
"The circuit court examined the manner in which Leo analyzed the confessions that he determined to be false:
[Leo] starts with the conclusion that the confession is false and then he works backwards.... He doesn't take into consideration why someone might falsely confess, other than because of a police interrogation technique.... [A]nd there are reasons why people would falsely confess, they might be trying to protect someone.... He hasn't determined a reliable means to have a study group consist of innocent people who wrongfully confess that weren't mentally ill or youth.

The circuit court criticized this methodology for failing to compare true and false confessions and identify factors that contribute to false confessions but not true confessions. As the circuit court stated, "[I]f true and false confessions can be derived from the same police interrogation techniques, [how] is it possible to blame police interrogation techniques with any degree of reliability?" Given what the circuit court considered to be inadequacies of Leo's data and methodology, the circuit court concluded that Leo's testimony was unreliable.

Nothing in the circuit court's analysis placed the exclusion of Leo's testimony outside the range of principled outcomes. The circuit court properly considered all stages of Leo's analysis and found it unreliable at every stage. With regard to the data underlying Leo's testimony, the circuit court reasonably determined that its sources were unreliable because they were prone to inaccuracy or bias and, in nearly all instances, had not been subjected to the rigorous standards of scientific peer-review. Additionally, the circuit court raised multiple legitimate concerns about the "manner in which [Leo] interpret[ed] and extrapolate[d] from those data." The unreliable methodology, as the circuit court described, resulted in conclusions consistent with Leo's own preconceived beliefs rather than testable results consistent with an objective, scientific process. Therefore, because the exclusion of Leo's testimony was a reasonable and principled outcome, the circuit court's decision did not amount to an abuse of discretion. The Court of Appeals came to the same conclusion after making similar observations about the data and methods underlying Leo's studies, and we thus affirm the lower courts' decisions to exclude Leo's testimony

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Jury rejects testimony from Dr. James Waker of false confessions and suggestibility

In the case State v. Clark (Sept. 2012) the jury found the defendant guilty of multiple charges of rape of a child and aggravated sexual battery, even though defense expert Dr. James Waker testified "that he evaluated the Defendant for propensity to be unduly suggestible or overly compliant in interrogation." He also evaluated the Defendant for personality characteristics that might lead him to give a false confession or false implicating statement. He further testified that the defendant "was susceptible to leading questions in an interrogation situation and that the person would be much more likely than the average person to make false admissions."

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Testimony from defense expert Dr. Stark on false confessions excluded

In the case Humphrey v. Riley (Sept 2012) the Supreme Court of Georgia upheld the trial court's decision to exclude the testimony of defense expert Dr. Stark on police interrogation tactics and the possibility that false confessions result from such tactics. The trial court excluded the testimony, reasoning that "false confession theory ha[d] not reached a verifiable stage of scientific certainty" and noting that "the knowledge that a false confession c[ould] be obtained from a suspect by police [wa]s not beyond the ken of the average juror."
The Supreme Court stated that "We find no prejudice from trial counsel's alleged deficiency for two reasons. First, as we noted on direct appeal, the question of whether someone might be persuaded to give a false confession through persuasive interrogation techniques is "not beyond the ken of the average juror," and, therefore, the absence of expert testimony on that question would not be prejudicial... Indeed, a review of the trial record reveals that trial counsel clearly set the issue of interrogation techniques before the jury through the cross-examination of the investigator who obtained Riley's inculpatory statement and who readily admitted using such techniques with Riley... Second, we have held that testimony from the very expert relied upon by Riley in his habeas hearing was properly excluded in another case, demonstrating that similar testimony would have been properly excluded at Riley's trial."

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Court excludes the testimony of defense expert Dr. Bruce Frumkin because it would "lead to confusion and misunderstanding."

In the case State v. Ackerman (July 2012) the Court of Criminal Appeals of Tennessee upheld the lower court's decision to exclude the testimony of defenses expert Dr. Bruce Frumkin "about the defendant's susceptibility to suggestion."

"With regard to his potential testimony about the defendant's susceptibility to suggestion, Doctor Frumkin testified that he performed a "comprehensive clinical interview" of the defendant and administered a test to measure intelligence quotient ("IQ"), a personality inventory test, a personality factor test, and "the Gudjohnsson."

".... Doctor Frumkin reiterated that he would not offer an opinion on whether the defendant's admissions to Ms. Ackerman and Detective Robinson were false. He said that he would instead provide the jury with psychological information about the defendant that would explain why he was more likely to provide false or inaccurate information in the face of that type of questioning. He said that he had no opinion on the accuracy of the defendant's statement, that he would not testify "in terms of the likelihood he gave a false statement or not," and that his only testimony would be that the defendant possessed psychological traits that made him more vulnerable to suggestion. He characterized his testimony as "additional data that [the jury] should look at [to] make a better determination of how much weight to give to what that person is saying."

At the conclusion of the hearing, the trial court took the motion under advisement and, in a later-filed written order, ruled 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."

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Jury rejects testimony that the Reid Technique risks unreliable and untrustworthy statements

In Rogers v. State (August 2012) the Court of Criminal Appeals of Tennessee at Nashville, affirmed the denial of post-conviction relief after the defendant had been convicted of first degree murder, and subsequently filed an appeal. During the trial, Dr. Pamela Auble, admitted as an expert in neuropsychology and clinical and general psychology, testified that, at post-conviction counsel's request, she evaluated statements the Petitioner gave to law enforcement in order to determine whether his statement had been coerced. As part of her testimony she stated that "The purpose of police interrogation is to elicit statements from defendants that describe their role in the alleged offense. The Reid technique is the most commonly employed strategy to accomplish this goal.... The Reid technique can be reduced to three processes: 1. Isolation in an interrogation room; 2. Confrontation or maximization in which the suspect is accused of the crime, presented with evidence, and blocked from denial; 3. Minimization in which the crime is morally justified and sympathy is feigned." The jury rejected the suggestion that the defendant's incriminating statements were unreliable or coerced in any way.
[It should be noted that Dr. Auble erroneously repeated several mischaracterizations of the Reid Technique that are often espoused by Dr. Richard Leo and others - see this document

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Supreme Court of New Jersey finds no evidence to suggest that using the Reid Technique when questioning juvenile "deprived A.W. of any of his rights or overbore his will"

In the case State of New Jersey in the Interest of A.W. (Sept 2012) the Supreme Court of New Jersey upheld the admissibility of a confession from a juvenile who was interrogated by investigators using the Reid Technique. In this case the defendant challenged the interrogation techniques that were used by the detective, "asserting that they failed to comport with "the highest standards of due process" as required by this Court..... Placing great reliance on recent social science research relating to juveniles, he maintains that juveniles are "uniquely vulnerable to coercive interrogation methods." He argues that the techniques the detective used in questioning him, known as the "Reid method," overbore his will, rendering his confession involuntary, and he urges this Court to direct the State to refrain from using such techniques when questioning juveniles."

In their opinion the Supreme Court stated that, "although it is certainly true that juveniles are more susceptible to having their wills overborne by adult authority figures, there is no evidence in this record that the interview techniques deprived A.W. of any of his rights or overbore his will."

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Juvenile confessions - the need to consider the totality of circumstances

In the case Gray v. Norman (Sept 2012) the U.S. District Court, E.D. Missouri, upheld the admissibility of the defendant's confession. Gray asserted that his confession was erroneously admitted for numerous reasons (detailed below).

In their opinion the U.S. District Court emphasized the need to consider these cases in light of the totality of circumstances: "The totality of the circumstances approach is adequate to determine whether there has been a waiver even where interrogation of juveniles is involved." Fare v. Michael, 442 U.S. 707, 725 (1979). "The totality approach permits-indeed, it mandates inquiry into all the circumstances surrounding interrogation." Id. "This includes evaluation of the juvenile's age, experience, education, background, and intelligence and whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights ." Id. "The question of whether a defendant understood the Miranda warnings is a question of fact, but the ultimate question of whether a waiver was valid is a question of law..."
The U.S. District Court addressed each of Gray's claims:

First, Gray claims his confession should be suppressed, because he was only sixteen years old. The state court correctly noted that age is only one of the factors considered when voluntariness of a juvenile confession is challenged.

Second, Gray claims that his confession should not have been admitted because he was taking medications for depression, anxiety, and attention deficit disorder. The state court found that the evidentiary record refuted Gray's claims that his medications affected the voluntariness of his confession. The court noted that the evidence showed that the medications aided Gray in making an "intelligent, understanding, and voluntary waiver of his constitutional rights."...... This is supported in the record by statements made by Gray and Gray's mother. At the time of his confession, Gray was taking Klonopin and Prozac. Gray told his doctor that the Klonopin helped his nerves and his mother testified that the Prozac helped Gray with panic attacks, sleep problems, and anxiety.... The state court noted that Gray did not present any evidence that he was experiencing any negative side effects from any medication while he was being interrogated. As a result, the state court found that Gray's medication use could not support suppression of his confession.

Third, Gray argues his confession should not have been admitted due to his IQ score of 73. The state court acknowledged that Gray's aptitude tests demonstrated low scores. The state court, however, also found that low IQ scores "do not necessarily render a confession inadmissible." The court noted that the medical evidence showed that Gray's verbal IQ tests were higher than his overall borderline IQ score and that a consulting doctor found that Gray's "reading ability and overt presentation would suggest that his actual intellectual potential is higher."

Fourth, Gray argues his confession should be suppressed, because he was not informed that his mother was willing to help him. The state court found that based on the circumstances, Gray's claim "rings hollow."... The state court noted that prior to and between each Mirandized interrogation, Gray had ample time to confer with his mother, including when he requested that she join him the interrogation room during his first visit to the police station on October 28, 1999 and during the nine hour period after Gray returned home prior to service of the search warrant... The state court noted that Gray's mother knew each time that officers spoke with Gray and she was present when he requested her presence.

Fifth, Gray alleges his confession should not have been admitted, because although he was not physically threatened, he perceived himself as being assaulted. The state court found that the evidence as stated previously, refutes Gray's argument that his intellect, psychological problems, or mediation prevented his knowing and intelligent waiver of his Miranda rights... The state court also found that Gray's assault argument is fundamentally flawed because

[i]f an intentional and truthful statement must be deemed to be involuntary, merely by reason of imaginary dangers conjured up by an apprehensive suspect, a greater burden would be placed on law enforcement than any which judicial solicitude for persons charged with crimes has hitherto created. There would be no objective standards for determining voluntariness, and no limit but the ingenuity of the defendant to the grounds for invalidity of confessions.

Next, Gray argues his confession should have been suppressed, because he was subjected to a lengthy interrogation, that he was not free to leave, and had sleeping difficulties. The state court found that at his suppression hearing, Gray did not claim that the length of the interrogation or procedure used caused him to be tired, sleepy, or to succumb to the interrogator's pressure... The state court noted that Gray only stated that he was scared, nervous, and panicked during the questioning. Moreover, the state court found that the interrogations by the officers were one-on-one with only the juvenile officer being present.

Finally, Gray claims his confession should be suppressed because the juvenile officers merely recited Gray's rights without ensuring that he knew them. The state court found that Gray's claim was directly contradicted by the record...The state court noted that juvenile officers were present during the interrogations, gave Gray Miranda warnings, asked if he understood his rights, and Gray always answered affirmatively. The state court found that the juvenile officers' conduct supports the finding that Gray's statements were given voluntarily and knowingly.

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The need to have clear and unequivocal Miranda waiver forms for juveniles

In the case R.W. v. State (Sept 2012) the Indiana Court of Appeals found the lower court was in error to admit the juvenile defendant's confession because the Miranda waiver form was not "clear and unequivocal."

In the context of juvenile delinquency proceedings, our Supreme Court has stated that "[w]ritten waiver forms are not required to satisfy the constitutional demands of Miranda or the statutory requirements of [I.C. S ] 313251, but they are particularly strong evidence.".... Moreover, when used, "they should be clear and unequivocal." Id. In the present case, only Mother signed the top half of the waiver form pertaining to the acknowledgment of the advisement of R.W.'s rights, but only R.W. signed the bottom half, which is the portion of the waiver form that conveys the actual waiver of the rights. Based upon the way the form was completed, one may speculate as to how it came to pass that only one signed the top half and only the other signed the bottom half. Such speculation, however, cannot cure the fatal flaw in the document, i.e., that R.W.'s mother's signature does not appear on the line denominated "PARENT'S SIGNATURE", signifying that Mother acceded to the waiver of R.W.'s constitutional rights. Thus, we must look elsewhere to find evidence that Mother consented to the waiver. Mother did not testify at the denial hearing. Detective Brice Adams, the IMPD officer who advised Mother and R.W. of his rights and presented them with the waiver form, and who conducted R.W.'s questioning, offered no testimony on the subject of Mother's consent to waiver. The videotape itself is similarly unhelpful. In short, we find no evidence indicating that Mother consented to the waiver of R.W.'s rights. Absent a valid waiver of rights, it was error to admit R.W.'s confession."

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Interrogator's reference to mitigating circumstances, including the fact that the shooting may have been an "accident" or from a "fit of rage" "fall far short of being promises of lenient treatment in exchange for cooperation"

In the case People v. Carrillo-Garcia (August 2012) the Court of Appeal, Third District, California rejected the defendant's claim that his confession was coerced by the police through implied promises of leniency and implied threats "that his failure to cooperate would work against him." The trial court found the statements were voluntary and denied the motion to suppress. From their opinion the Court of Appeal stated:

"Defendant, who maintains he was particularly susceptible to influence because he was only 18 years old and naive about the criminal justice system, contends the police coerced his confession with repeated promises of leniency. Not so. As aptly pointed out by the Attorney General, two Supreme Court cases with remarkably similar interrogations found the confessions were voluntary.

In People v. Holloway (2004) 33 Cal.4th 96, the interrogator suggested that the killings might have been accidental or resulted from a fit of rage and that these circumstances could " 'make[ ] a lot of difference.' " ... Similarly, the sergeant here also suggested to defendant that mitigating circumstances could "make[ ] a difference." Thus, he reinforced the message that defendant might not have intended to kill, but that his emotions got out of control. Here, as in Holloway, the interrogator's suggestions "fall far short of being promises of lenient treatment in exchange for cooperation. The detectives did not represent that they, the prosecutor or the court would grant defendant any particular benefit if he told them how the killings happened." ... Rather, the interrogators' admonitions did no more than tell defendant the benefit that might " ' "flow[ ] naturally from a truthful and honest course of conduct" ' [citation]...." .

The interrogator in People v. Carrington (2009) 47 Cal.4th 145 ( Carrington ) employed the same techniques. He too tried to convince his suspect that it would behoove her to explain any mitigating circumstances and suggested, " 'What if she scared you? She confronted you. Or maybe there was someone else with you.' " ... Like the sergeant, the interrogator in Carrington encouraged the suspect to tell the truth and take the weight off her shoulders... And he promised that if the suspect cooperated during the interview, the officers " 'would try to explain this whole thing with, with Los Altos P.D. as [best] we can.' "

None of these exhortations crossed the impermissible line and rendered the police conduct coercive. The officer's statement that "he would help defendant in explaining 'this whole thing' to the Los Altos police did not constitute a promise of leniency...." ... Nor did the assurances that the police were attempting to understand the defendant's motivation coerce her to confess; rather "they merely suggested possible explanations of the events and offered defendant an opportunity to provide the details of the crime."

The sergeant used the very same interrogation techniques in trying to persuade defendant to tell the truth. Neither his repeated references to the district attorney, his attempts to get a better understanding of defendant's motives and to extract mitigating circumstances, nor his encouragement to defendant to lighten his load constituted coercion, even when considering defendant's age and lack of experience with the criminal justice system. Although defendant, to his credit, had no criminal record and was a very young adult, there is nothing in the record to suggest he was particularly vulnerable, did not understand English, or was mentally or emotionally compromised. Given the utter lack of coercive police interrogation and no evidence defendant's statements were not voluntary, we conclude the trial court properly admitted the statements he made during his interrogation."

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"If for some reason you went in [the restaurant] to do a robbery and somehow the gun went off [accident]" was not a statement that suggested leniency

In the case Commonwealth v. Johnson (August 2012) the Supreme Judicial Court of Massachusetts upheld the admissibility of the defendant's confession. On appeal, the defendant had argued that his statements were not made voluntarily, claiming that at the time of the interview, he was young, inexperienced, terrified, and likely intoxicated, and that, during the interview, Detective Black lied about forensic evidence implicating him and falsely suggested that confessing would be advantageous. From the court's opinion:

"Similarly, there is scant justification for the defendant's current contention that he was "terrified," such that his statements were not made voluntarily. To be sure, Black noted that the defendant briefly put his head in his hands and, at times, seemed "nervous" and "scared." On the other hand, the defendant also appeared lucid, coherent, and articulate throughout the questioning, and Black told him, in a nonaggressive manner, "I'm not trying to scare you and I hope you understand that. I'm trying to explain to you how serious this is." The defendant's emotional state is wholly consistent with the situation in which he found himself and the gravity of the charges he faced; it did not render him so emotionally unstable or irrational that he could not act voluntarily, nor was it the product of any alleged police coercion.

Relatedly, Black also never improperly implied that confessing would benefit the defendant. Specifically, Black told the defendant: "This is kind of a bad situation"; "If for some reason you went in [the restaurant] to do a robbery and somehow the gun went off, I don't know how, today is the day to tell me that"; and "I want to give you the opportunity today to get out in front of this." These statements fall within the general rule that "[a]n officer may suggest broadly that it would be 'better' for a suspect to tell the truth, ... or may state in general terms that cooperation has been considered favorably by the courts in the past."

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Lying about evidence such as minimizing the victim's injury, and telling the defendant gun shot residue and eyewitnesses showed that he was the shooter, would not cause an innocent person to confess

In the case People v. Boner (Sept 2012) the Court of Appeal, Third District, California upheld the admissibility of the defendant's confession. The court heavily relied upon the DVD of the interrogation to assess the defendant's claim that his statements were involuntary because the police the lied to him about the victim's physical condition. From their opinion the court stated that:

"[T]elling a suspect falsehoods regarding the status of the case against him is widely accepted." ... "Where the deception is not of a type reasonably likely to procure an untrue statement, a finding of involuntariness is unwarranted." .....

The detectives said the gunshot residue test and eyewitness statements showed defendant was the shooter, and both Antwaine and Moody had told the detectives everything. Although apparently these statements were not true, we do not find that any of these statements, nor all of them together, would tend to cause an innocent person to confess.

Defendant contends that minimizing the victim's injury, as well as the statements that defendant "can help [himself] out" and "can dig ... so big of a hole that we can't help you out," amounted to an improper offer of lenity if defendant confessed. We are not persuaded by this argument.

Here, the detectives did not state or imply that if defendant admitted he shot the victim he would get lenient treatment because the victim had not been badly hurt. Instead, they employed a technique of minimizing the consequences of defendant's actions. We do not see that such conduct is likely to make an innocent person falsely confess.
In this case defendant knew he had shot someone during an armed robbery, and knew he was being questioned about that incident. The fact he was told the victim only needed a band-aid was not the sort of deception that would tend to cause an innocent person to admit to the shooting."

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Calling the defendant a liar during an interrogation does not violate the rule which prohibits a witness from giving an opinion on whether another witness is telling the truth

In the case State v. Miller (May 2012) the Court of Appeals of Wisconsin ruled that
comments of detective during video-recorded interview with defendant which was played for jury, stating that defendant was lying during the interview, did not violate the Haseltine rule prohibiting a witness from giving an opinion on whether another witness is telling the truth.
Relying on Haseltine, Miller contends the video should not have been played for the jury because in it Primising tells Miller multiple times he is lying..... Miller points out that Haseltine prohibits a witness from giving an opinion on whether another witness is telling the truth because it invades the jury's role as the sole determiner of credibility. We conclude that because the comments made by Primising on the video were made in the context of a pretrial police investigation and were not made as sworn testimony in court, the Haseltine rule was not violated.

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Incriminating statements admissible even though police deceived defendant about what offenses they were investigating

In the case US v. Whitfield (August 2012) the U.S. Court of Appeals, Fourth Circuit upheld the lower court's decision not to suppress incriminating statements even though the investigating police "deceived him [defendant] about the offenses they were investigating." From the Appeals Court opinion:
"Whitfield's chief complaint is that the police officers deceived him about the offenses they were investigating, particularly those involving the forced accompaniment and death of Mrs. Parnell. Nevertheless, Whitfield concedes that the officers "had no duty to advise [him] of the identity of the specific offense under investigation" or "inform [him] of every potential theory of liability related to [his] conduct."... Although Detectives Sampson and Sumner led Whitfield to believe that their only interest at the start of the interview was the Belmont home break-ins, Whitfield obviously knew that his interactions with Mrs. Parnell were the result of his breaking and entering of her home. Whitfield persists, however, that he could not have rationally assessed the consequence of confessing to the break-ins because Sergeant Reynolds had indicated that Mrs. Parnell was alive and had "ID'd" Whitfield.... Because of Reynolds' misrepresentations, Whitfield contends that he mistakenly believed that he was being investigated for only a minor crime.

As the Supreme Court has explained, "[p]loys to mislead a suspect or lull him into a false sense of security that do not rise to the level of compulsion or coercion to speak are not within Miranda's concerns." Illinois v. Perkins, 496 U.S. 292, 297, 110 S.Ct. 2394, 110 L.Ed.2d 243 (1990).

As a result, the totality of the circumstances support the district court's denial of suppression. During the first part of the police interview, Whitfield's statements pertaining to the two Belmont home break-ins--including his statements about interacting with Mrs. Parnell--were voluntarily made."

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Telling a suspect he could be charged with the more serious crime of lying to the police can nullify the confession

In the case State v. Valero (August 2012) the Court of Appeals of Idaho confirmed the lower courts finding that the defendant's confession should be suppressed because "the deceptive tactics used by the detective, under the totality of the circumstances, rendered the confession involuntary." From the Appeals Court decision:

"Deceptive police practices do not necessarily create coercion which would render a suspect's subsequent confession involuntary and excludable..... Confessions derived during the course of interrogations have been upheld as voluntary, notwithstanding misrepresentations of facts by the police, such as telling a defendant that his fingerprints were found on physical evidence or at the scene.... Courts have uniformly accepted the police tactic of "telling a suspect they have found some incriminating evidence to elicit statements from a suspect on the view that an innocent person would not be induced to confess by such police deception.".... However, that acceptance wanes when the police misrepresent the law.

The detective misrepresented the law regarding the polygraph. Both before and after the polygraph the detective told Valero that the polygraph results would be admitted into court...

After the polygraph, the detective misrepresented his ability to testify against Valero in court, based upon the results of the polygraph. In addition, the detective made quasi-factual, quasi-legal misrepresentations regarding the polygraph itself. Valero questioned how the polygraph could determine truthfulness and the detective described the bodily function sensors associated with the polygraph machine. The detective represented to Valero that the polygraph was one hundred percent accurate...

On more than one occasion, the detective conveyed to Valero that, from the polygraph, there was no question what Valero had done and, in essence, that the polygraph was determinative of his guilt. The coercive nature of this misrepresentation can be seen one last time as Valero attempted to deny the accusations, stating "I never would touch her but if that thing [polygraph] says I did...." To which the detective responded "Well, you did." As noted above, the police are allowed to make misrepresentations to elicit confessions; however, acceptance wanes when the police misrepresent the law.

After stating that he could testify one hundred percent to Valero's guilt, the detective returned to his themes. The detective again minimized the seriousness of the accusations, stating that they were "not the end of the world." Then, the detective stated: "What is getting you to the end of the world and getting you in a bad spot now is the crime of lying to the police." (Emphasis added). At that point, Valero was faced with the possibility of being punished for two crimes: (1) one based on the girl's allegations; and (2) the other purported crime of lying to the police and, according to the detective, the more serious of the two crimes. Aside from the possibility of being punished for two crimes, Valero was placed in the position of being able to get out of the purportedly greater crime of lying by confessing to the purportedly lesser crime of inappropriate touching. The district court properly found that this false choice resulted in Valero's will being overborne.

The State cites to State v. Wilson, 126 Idaho 926, 894 P.2d 159 (Ct.App.1995) as instructive that voluntariness is not overborne when a confession is obtained "by downplaying the seriousness of the charges, by stressing the harm that might come to Wilson's family and by making implied promises of leniency."... However, we did not hold that those claimed circumstances could not result in involuntariness, relying instead upon the findings by the district court in that case:

The district court, considering the totality of the circumstances, concluded that Wilson understood the nature of the rights being read to him and realized the seriousness of the events at the time. There was also evidence from which the district court could have found that [the lieutenant's] statements to Wilson were not sufficient to undermine Wilson's free will. These findings are supported by the evidence in the record and are not clearly erroneous.

While we do not hold that downplaying the seriousness of the accusations, by itself, resulted in Valero's will being overborne, it is a factor in the totality of the circumstances. Most importantly, in this case, the detective utilized downplaying of the seriousness of the victim's accusations to juxtapose that alleged crime against a threat of being charged with a more serious crime of lying to the police, which the officer could prove "one hundred percent" because the polygraph established that Valero was lying. Thus, Valero was faced with a Hobson's choice.
By claiming that the polygraph was admissible and that "I have to go to court now and say absolutely one hundred percent Jose touched [the victim's] breasts," the detective impliedly promised admission of evidence in court conclusive in regard to proof of guilt.
... Most critically, the detective's representation that Valero could be charged with a more serious crime of lying to police if he did not confess was inherently coercive. It is precisely the type of coercive tactic that could induce an innocent person to confess."

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Does the statement that questioning could go the "easy way" or the "hard way" constitute a threat? Not when the statement is viewed in context.

In the case People v. Frith (August 2012) the Court of Appeal, Second District, California upheld the admissibility of the defendant's confession, even though the defendant was told that the questioning could go the "easy way" or the "hard way" which he claimed was an implication of physical force. From the Court of Appeals decision:

Our review of the record reveals no substantial indicia of deception, undue pressure, or coercion by the detectives.... First, defendant's argument that Detective Durden's statement that questioning could go the "easy way" or the "hard way" implied the use of physical force takes the statement out of context. Directly after stating they could do it the easy way or the hard way, the detective explained, "The easy way is, that you [are] up front and honest. The hard way is, you want to play the game. Okay. If you want to play the game I have her story." Detective Durden went on to state there were always three sides to a story--his, hers, and the truth. Taken in context, it is clear the detective was exhorting defendant to tell the truth and even went so far as to indicate that he did not give defendant's story less weight than Breanna's. There was no threat, express or implied, in the detective's statements. A confession is not involuntary, where, as here, "[the detective] did not cross the line from proper exhortations to tell the truth into impermissible threats of punishment or promises of leniency."

Defendant next argues that when Detective Durden suggested he was "shucking and jiving," defendant believed the detective was accusing him of lying and felt intimidated by the detective's tone and body language. Even aggressive accusations of lying do not amount to coercive threats absent threats of punishment or promises of leniency.... In Joe R., the court held that a minor's confession was voluntary even though the police accused him of lying "loudly, emphatically, and with terse language (e.g., 'bullshit')...." ... Defendant does not claim to have suffered any language stronger than "bullshit," and as a 43-year-old man and a TSA officer, he was far less likely to have felt coerced by the implication that the officers believed he was lying than the 17-year-old boy in Joe R. Any implication by the detectives that defendant was lying does not invalidate his confession.

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Confession inadmissible when police tell the suspect (in custody) that he has to hire an attorney in order to have representation during the interrogation.

In the case People v. Records (August 2012) the Court of Appeal, Fourth District, California found that the defendant's confession should have been suppressed because the police told the defendant he had to hire an attorney in order to have one during the interrogation. In their opinion the Court of Appeal stated the following:

"During the police interview, Detective Neagu effectively told defendant that he could not have a lawyer representing him unless he paid for it. The interview began with some innocuous conversation. Then Detective Neagu read defendant his rights and asked if he understood them. Defendant asked, "how long would it take for me to get a lawyer in the room with us?" Neagu responded he did not know. Defendant repeated the question, "how long do you think a lawyer would take to get here?" Neagu answered, "I couldn't tell you. I mean, do you have a lawyer in mind?" Defendant explained he did not have any money and would need a public defender. Neagu then said, "I can tell you right now, public defender's not gonna show up here and talk to you..... Public defender would be, when you go to court. ..... And represent you there." Defendant sought additional clarification in the following exchange:

"RECORDS: But to, for someone to, to help me out with questions here I mean, who ...
"NEAGU: Right. You'd have to hire an attorney.
"RECORDS: Okay. So I would, there wouldn't be any, uh, if it says, 'cause in the Miranda rights it says, if one, if you can't afford one, one can be ...
"NEAGU: Well, represent you, but at the time when you're at court.
"RECORDS: Okay. Gotcha."

Defendant asked for an attorney at least four times. Detective Neagu answered that a public defender would not attend the interrogation and defendant would have to hire a lawyer. The detective may have spoken correctly but he also spoke incompletely. Although a public defender may not have been available immediately, defendant was still entitled to have a lawyer during all stages of the criminal proceedings, even during interrogation. It was misleading and wrong for the detective to tell defendant he had to hire an attorney in order to have one during the interrogation. As the Alvarez court directed, when defendant made the requisite expression of a desire for the help of a lawyer, the police should have discontinued the interview and not subjected defendant to any further questioning until after he had had an opportunity to consult with a lawyer or until he, on his own initiative, resumed the conversation. Following defendant's invocation of Miranda rights, his subsequent execution of the written Miranda waiver was ineffective and his statements should have been suppressed.

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