Legal Updates: Spring 2011

No Federal due process requirement to record the interrogation

In the case of Peppard v. Fischer (Sept. 2010) the U.S. District Court, W.D. New York, upheld the Appellate Division decision when they rejected Peppard’s claim that the failure to videotape the interview deprived the trial court of the “best available evidence.” The Appellate Division had rejected this claim, holding that “he was not denied due process based on the failure of the police to record the interrogation resulting in his statement. ‘There is no Federal or State due process requirement that interrogations and confessions be electronically recorded[.]’

“Notably, several circuit courts have concluded that the federal Constitution does not obligate police officers to record interrogations or confessions. E.g., Reinert v. Larkins, 379 F.3d 76, 94 n. 4 (3d Cir.2004); Ridgley v. Pugh, 176 F.3d 484 (9th Cir.1999) (habeas claim based on police officer's failure to tape-record a portion of petitioner's interrogation “does not state a violation of a federal constitutional or statutory right”); United States v. Yunis, 859 F.2d 953, 961 (D.C.Cir.1988) (finding “no constitutional requirement to record confessions by any particular means,” including videotaping, even if such equipment is available). In the absence of a federal constitutional violation, there is no basis upon which habeas relief can be granted.”  Click here for the complete decision.

Police must tell suspect undergoing custodial interrogation when his attorney arrives

In the case State v. Mitchell (Feb. 2011) the Superior Court of Connecticut (Waterbury) ruled that, “In State v. Stoddard, 206 Conn. 157, 163, 537 A.2d 446 (1988), the Connecticut Supreme Court held that the Connecticut constitution imposes “a duty upon police officers who are holding a suspect for custodial interrogation to act reasonably, diligently and promptly to apprise the suspect of efforts by counsel to provide pertinent and timely legal assistance.” The motion to suppress in the case currently before this court raises the important question of whether the Stoddard duty requires the police to inform the suspect of the name of the attorney attempting to provide legal assistance and the fact that the attorney is present at the police station at the time of the interrogation. For the reasons set forth below, the court concludes that the police must provide such information to a suspect undergoing custodial interrogation.”

This court also addressed the issue of electronically recording an interrogation and found that “our Supreme Court has already concluded that “there is no federal precedent in support of the proposition that the federal constitution imposes a recording requirement ... The federal Courts of Appeal that have considered a similar claim have uniformly rejected it.” State v. Lockhart, 298 Conn. 537, 550, 4 A.3d 1176 (2010). Additionally, the Supreme Court has recently reiterated its position that the Connecticut constitution does not mandate electronically recording interrogations in order to make them admissible.”  Click here for the complete decision.

Court rejects the testimony of expert witness Dr. John DiBacco on the issue of coercive interrogation techniques

In the case of US v. Preston (January 2011) the U.S. District Court, D. Arizona, upheld the admissibility of the defendant’s confession and rejected the testimony of expert witness Dr. John DiBacco, stating the following: “During the course of the interview, the agents asked Defendant suggestive questions such as whether it was a one-time event, whether the victim pulled down his own pants, whether Defendant unzipped his own pants or pulled them down, whether Defendant put on a condom, whether and for how long he penetrated the victim, whether he threw the condom away, etc. In response to these questions, Defendant made some admissions. At the end of the interview the officers wrote out a document which they represented to Defendant could contain his apology to the victim. In the document, the officers summarized the confessions that they had obtained from Defendant, included an apology to the alleged victim, and had Defendant review and sign the document, which he did.

At hearing, Defendant called Dr. John DiBacco as an expert witness. Dr. DiBacco offered evidence that the interview technique used by the agents was inappropriate and persistent; and that Defendant may be susceptible to the inappropriate questions and promises made by agents because he is substantially below average in his communication and comprehension skills. Dr. DiBacco further testified that Defendant has been in special education courses as a result of these poor verbal communications skills. Under such circumstances Defendant's expert opined, Defendant might have been willing to say what he perceived his questioners wanted him to say to bring the interview to an end.”

The District Court found that “Having assessed the nature of the interrogation at issue, and the extent of Defendant to resist the pressure brought upon him by the agents, the Court is of the opinion that the government has met its burden that the statements were not the result of Defendant's will being overborne.”  Click here for the complete decision.

Suspect asks for an attorney – the interrogation stops – suspect says shortly thereafter he wants to talk without an attorney

In the case of Murphy v. State (January 2011) the Court of Appeals of Indiana held that the trial court did not abuse its discretion by admitting Murphy’s statement to the police even though Murphy alleged that the police officers continued the questioning after hr requested an attorney.

In their decision the Court of Appeals related the following: “The record reflects that prior to questioning, the officers advised Murphy of his Miranda rights and verified that he understood these rights. Murphy signed a waiver of his rights. After some questions about his personal information, the officers started asking him questions about Stafford, whereupon Murphy stated “[c]an I get an attorney because this is about to get real deep?” (State's Exh. 87, p. 13). The interrogating officers stopped the questions. When they asked Murphy to provide them with the name of his attorney, Murphy could not give the officers a name. Nonetheless, Officer Williams told Murphy “[w]e'll go ahead and stop.” (State's Exh. 87, p. 14). At that point, the officers ended the interview and placed Murphy back in the holding cell.

The record next indicates that as the officers started the paperwork to arrest Murphy, Murphy started knocking on the wall between the holding cell and the officers' office. The officers returned to the holding cell, and Murphy asked them what he was going to be charged with. Officer Williams explained that he was going to be charged with murder. After Murphy replied, “I don't think that's right[,]” Officer Williams responded that they could not talk to him as he had requested an attorney. (Tr. p. 163). Murphy replied that he wanted to continue talking. Officer Williams testified about what transpired next as follows:

I again told him his rights still applied, and he had asked for an attorney, and we could not talk to him at this time again. He then said he wanted to talk to us without an attorney. I said, “Well, that will be fine. It's up to you. You have requested an attorney but we will talk to you again if you want to.” He said he did.

(Tr. p. 91). This entire episode took approximately fifteen minutes.

Based on the circumstances before us, it is clear that the officers ceased interrogating Murphy as soon as he requested counsel. After he was placed in the holding cell, Murphy initiated further conversation with the officers. Because the officers had elaborately informed Murphy about his Miranda rights prior to the interview and verified that he understood these, Officer Williams' caution that Murphy's rights still applied when Murphy restarted the interrogation is sufficient to establish that Murphy waived his right to counsel upon resumption of the police interview. See Osborne, 754 N.E.2d at 922.  Click here for the complete decision.

Court rejects the argument made by expert psychologist Dr. Mark Vigen that the defendant was susceptible to police manipulation

In the case of State v. Blank (January 2011) the Court of Appeal of Louisiana, Fifth Circuit, upheld the trial court’s decision to admit the defendant’s statements even though

he had offered the testimony of Dr. Mark Vigen, an expert psychologist, “who described him as an illiterate and easily manipulated individual who was confronted by multiple law enforcement officers and then taken to a strange office for interrogation where, over the course of many hours, he finally broke down. Blank asserts that, under the circumstances of this case, the emotional stress upon him was sufficient to vitiate his consent, contrary to the trial judge's belief.”  Click here for the complete decision.

Court upholds confession after suspect told he has two choices – cooperate and we will talk to the DA; don’t cooperate and we will not talk to the DA

In the case of US v. Siler (February 2011), the U.S. District Court, E.D. Tennessee, agrees with the magistrate’s decision when she found that during the interrogation of the defendant Investigator Ogle presented the defendant with two choices, either (1) cooperate, be charged with two burglaries, and the investigator would speak with the DA and the probation officer about the defendant's cooperation, or (2) not cooperate, potentially be charged with a “bunch of charges,” and the investigator would not speak with the DA and the probation officer. The magistrate judge also found that one of the investigator's statements, taken in isolation, could constitute a promise of leniency, coupled with a threat of imprisonment [Doc. 28, p. 24]. However, when the magistrate judge viewed that statement in the context of the entire interview and the whole of the investigator's conduct, the magistrate judge determined that it was not objectively coercive because the investigator repeatedly told the defendant he could not promise him anything except that he would go to the DA [ Id., pp. 24-25]. The magistrate judge concluded, however, that even if it was objectively coercive, the statement was not sufficient to overbear the will of the defendant based on the totality of the circumstances.

The defendant, on the other hand, asserts that he was presented with the following choices, either: (1) cooperate, not be charged with the burglary charges or a gun charge, and the investigator would speak with the DA and the probation officer about the defendant's cooperation, or (2) not cooperate, be charged with the burglary charges and a gun charge, and the investigator would not speak with the DA and the probation officer. The defendant also asserts that he made the inculpatory statements only after the investigator assured him he would not be charged.

In sum, the Court agrees with Magistrate Judge Shirley that the investigator promised the defendant that if he cooperated, the investigator would speak with the DA and the probation officer and, contingent upon the decisions of the DA and the probation officer, the defendant could receive drug rehabilitation and probation. The Court agrees with Magistrate Judge Shirley that, when the context of both interviews are considered, along with the whole of the investigator's conduct, Investigator Ogle did not threaten the defendant with immediate imprisonment versus promises of leniency dependent on the defendant's cooperation. Accordingly, because the investigator's promises of leniency were not illusory, did not threaten immediate imprisonment, and because the investigator did not promise the defendant that no charges would be brought against him if he cooperated, the Court agrees with the magistrate judge that the investigator's statements and/or promises of leniency regarding the burglary charges, drug rehabilitation, and probation were not objectively coercive.”  Click here for the complete decision.

The value of recording interrogations

In the case of Rodriguez v. Martel (February 2011) the U.S. District Court, E.D. California, rejected the defendant’s claim that his statements to police should have been suppressed at his trial because they were “obtained involuntarily and without a valid waiver of his Miranda rights.”

The defendant claimed that he was “never asked whether he wished to waive his right to counsel or against self-incrimination and never did so.” He denies that he impliedly waived his constitutional rights by continuing to speak to investigators after his rights were explained to him.  “Petitioner notes that he did not speak English, was illiterate and unsophisticated, and did not know his exact birthday. He argues that his answers to the interrogating deputy's questions reflect that he did not understand what he was being told by the officers.

Petitioner also argues that his statements to law enforcement were involuntary “as a result of his lack of understanding of his rights and the significance of the admonitions concerning them as well as the coercive tactics of the investigators.”  Petitioner states that he was “questioned mostly while shackled to a chair;” that he had “as little sophistication as is imaginable;” that he was “in a weakened state,” and that he had “not eaten in more than 24 hours and is provided food only after his confession.” He claims that “the prosecution did not prove [petitioner's] statements were made after a knowing and intelligent waiver of his right to refuse to make them and thus should not have been admitted for any purpose.”

However, when the videotaped interview was reviewed, the court stated that it “corroborates the absence of any coercive tactics. There was no physical or psychological pressure placed on defendant, and no threats or promises made to him, to induce him to talk to the detectives. The detectives were polite toward defendant, their tone cordial and friendly. When defendant expressed he was thirsty, he was brought water. He manifested no hesitation or uncertainty during questioning about whether he wanted to speak to the detectives. In sum, our review of the taped interview reveals nothing in the detectives' treatment of defendant or his response to them to indicate that he was intimidated or worn down in any way by improper interrogation tactics, lengthy questioning, or anything else.”  Click here for the complete decision.

A second case that demonstrates the value of recording an interrogation

In the case of State v. Decloues (March 2011) the Court of Appeal of Louisiana, Fourth Circuit, relied on the taped confession to determine whether or not the defendant was too impaired to offer a voluntary confession.  From the court’s opinion:

“ Our review of the taped confession indicates that at the beginning of the interview the detective read the defendant his rights. The defendant appears attentive while those rights were being read, acknowledging each one individually. When asked whether he understood his rights, the defendant gave a definitive yes. The defendant is noticeably fidgety and sometimes had to be asked to speak up, but as Doctor Vosburg observed, he was easily calmed. His answers were responsive to the questions asked by the detective. Significantly, the confession is detailed in the description of how the murder occurred. The defendant explained that he had stayed out all night the night before and when he returned home, he and his mother argued. After retreating to his room to watch television and smoke more crack cocaine, he left the house again. When he returned, he thought he could slip into his mother's room while she slept and take her credit card from her purse and a phone book that contained the pin number to the credit card. When he entered the room, she was awake and the defendant asked her for some Tylenol. He then went to the kitchen, retrieved a knife, returned to his mother's room, and approached her. When his mother became vocal, he attacked her. The defendant admitted stabbing her, trying to break her neck, and suffocating her. He stated that the drugs made him deranged. He then explained how he removed all of his clothes and placed them in a black bag along with a glove and the knife that he wrapped in newspaper. The defendant placed the shoes that he was wearing under his bed. Afterwards, when he was looking for her purse, the defendant came across the lock box. He broke into the lock box and found thirty dollars. During the interview, the defendant expressed remorse for his actions.

Moreover, the defendant's confession coincides with the physical evidence presented at trial. The tape and testimony show that appellant was advised of and understood his rights. Doctor Vosburg's observations of the defendant's taped confession appear accurate. The district court viewed the taped confession and heard the testimony of Detective Pardo and Dr. Vosburg before finding the confession to be voluntary. Because the confession is supported by the evidence, we do not find the trial court abused its discretion by denying the motions to suppress the statement and evidence.”  Click here for the complete decision.

Police cannot promise drug treatment in lieu of incarceration

In the case of State v. Jenkins (February 2011) the Court of Appeals of Ohio, Second District, upheld the trial court’s decision to suppress the defendant’s incriminating statements because they were the result of a promise of treatment in lieu of prison. “Jenkins described his initial interview with Yount as follows: “He told me that he had the authority to get me treatment as long as I helped him. He was a man of his word. He said if I was a man of my word, he would be a man of his word. He would get me treatment as long as I was truthful and honest with him. That was the only way it was going to happen.” Jenkins stated that Yount told him that he had the authority, independent of the prosecutor, to arrange treatment in lieu of conviction.

“ ‘The line to be drawn between permissible police conduct and conduct deemed to induce or tend to induce an involuntary statement does not depend upon the bare language of inducement but rather upon the nature of the benefit to be derived by a defendant if he speaks the truth, as represented by the police. * * *

“ ‘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 in addition to the foregoing benefit, or in the place thereof, the defendant is given to understand that he night reasonably expect benefits in the nature of more lenient treatment at the hands of the police, prosecution or in court in consideration of making a statement, even a truthful one, such motivation is deemed to render the statement involuntary and inadmissible. The offer or promise of such benefit need not be expressed, but may be implied from equivocal language nor otherwise made clear.’ “

On February 10th, Jenkins made Yount aware of his drug addiction, and Yount discussed intervention in lieu of conviction with Jenkins, and he further indicated that the police department has “influence on things that happen throughout the trial.” On February 11th, Yount testified that he recommended treatment for Jenkins to the judge. Jenkins was fearful about going into withdrawal. While Yount did not guarantee treatment in exchange for Jenkins' confession, he implied by his conduct and words that such a benefit was a possibility. In considering the nature of the benefit to be derived from Jenkins' confession, namely treatment for a severe drug addiction, we conclude, as did the trial court, that the benefit did not naturally flow from a truthful course of conduct on the part of Yount. Intervention in lieu of conviction was not available as a matter of law, and Yount's false representations undermined Jenkins' capacity for self-determination and impaired his decision to provide incriminating statements. Having considered the totality of the circumstances, the State's sole assignment of error is overruled.”  Click here for the complete decision.

A confession does not constitute a per se bar to establishing a prima facie case demonstrating that DNA testing would establish actual innocence

In the case of Commonwealth v. Wright (February 2011) the Supreme Court of Pennsylvania held that a confession, even if previously and finally adjudicated as voluntary, does not constitute a per se bar to establishing a prima facie case demonstrating that DNA testing would establish actual innocence, and the convicted person may, therefore, obtain post conviction DNA testing if he or she meets all of the pertinent requirements for such testing; overruling Commonwealth v. Young, 873 A.2d 720.  Click here for the complete decision.

The meaning of interrogation – can you tell a suspect he has been implicated in the crime after he has asked for an attorney?

In the case of People v. Frett (February 2011) the Superior Court of the Virgin Islands upheld the suppression of an incriminating statement made after the suspect had terminated the interrogation by asking for an attorney.  

“On October 28, 2008. at about 6:42 p.m., Frett was interviewed by either Detective Jason Marsh (hereinafter “Detective Marsh”) or Detective Mario Stout (hereainfter “Detective Stout”). Frett signed his name on the Warning As to Rights and Waiver Form, acknowledging that he was read his constitutional rights and consented that he wished to waive his rights. Frett began to give a statement, about two pages, and at approximately 7:01 p.m. Frett told Detective Marsh he wanted an attorney. At that point, Detective Marsh stopped the questioning and left the room to go talk to Southwell in the Investigation room, who was simultaneously being questioned regarding Lerner's murder. Frett remained in the room with Detective Stout.

Several hours later. Detective Stout went by the door and someone told him that Southwell was cooperating and gave a statement indicating that Frett was responsible for the killing. Detective Stout, without prompting or solicitation from Frett, proceeded to share that information with Frett. Upon being told about that he was implicated in the murder, Frett told Detective Stout he wanted to make a statement. Frett was again advised of his constitutional rights and signed the Warnings As to Rights form at 10:05 p.m. on the 28th of October 2008. Frett gave Detective Stout a five page written statement (hereinafter, the “Second Statement”).

The Court finds that Detective Stout interrogated and violated Frett's Miranda rights when Detective Stout, without prompting or solicitation from Frett and after Frett had already requested an attorney a few hours earlier, told Frett about Southwell's cooperation with the police and Southwell's statement accusing him (Frett) of committing the murder because Detective Stout reasonably should have known or knew that Frett would give an incriminating response. Accordingly, the Court shall suppress Frett's Second Statement given in response to Detective Stout's unsolicited statements regarding Southwell.”  Click here for the complete decision.

Court rejects the testimony of Dr. Richard Leo on the issue of false confessions

In the case People v. Polk (January 2011) the Appellate Curt of Illinois, First District, upheld the lower court’s decision to exclude the testimony of Dr. Richard Leo.  In this case the defendant offered Dr. Leo’s testimony that “factors including defendant's low IQ and interrogation techniques used in this case, such as the detectives challenging defendant's denials and detaining defendant for a significant length of time, created a risk of a false confession.”

“Similarly, Dr. Leo's testimony that defendant's low IQ and the police interrogation techniques used in this case could have resulted in a false confession was not beyond the understanding of ordinary citizens, nor a concept difficult to understand. In addition, the circuit court did not prevent defendant from challenging the credibility and weight of his confession throughout defendant's trial. Further, the jury received testimony in this case regarding defendant's education, age, and intellectual performance. This included psychologist Dr. Joan Leska's testimony that defendant had an IQ of 70, placing him in the second percentile, which is extremely low, in the borderline range of intellectual functioning. The jury also heard testimony regarding the conditions of defendant's interrogation, the length of time defendant was interrogated, the receipt and waiver of Miranda rights, and the content of the police questions and defendant's statements. The jury viewed defendant's videotaped statement and could assess the format in which the questions were presented and answers were provided. It was reasonable for the circuit court to conclude that the jury could decide the issue of the reliability of defendant's statement and could have reached the same conclusion as Dr. Leo based on the testimony of other witnesses about defendant's intellectual level and the evidence of defendant's interrogation. Therefore, we cannot say that the circuit court abused its discretion in excluding Dr. Leo's testimony.”  Click here for the complete decision.

California Court of Appeals finds that “Dr. Leo's proffered testimony, presented in a vacuum, created a substantial danger of confusing the issues or misleading the jury”

In the case People v. Dimas (April 2011) the Court of Appeal, Second District, CA upheld the lower court’s decision to exclude the testimony of Dr. Richard Leo on false confession issues.  The Court of Appeal summarized the lower court’s decision as follows:

“Prior to trial, the People moved to exclude the proffered testimony of a defense expert, Richard Leo, Ph.D., J.D., on the subject of false confessions. The trial court did not initially render a definitive ruling before trial, advising counsel it wanted to hear from Dr. Leo first. During trial, the court considered the issue at a hearing outside the presence of the jury pursuant to Evidence Code section 402.

Dr. Leo testified that he had reviewed Dimas's video-recorded interviews. He explained that if he were allowed to testify, he would note and explain certain interrogation techniques used by the police, and discuss the scientific research that has identified the aspects of those techniques posing “risk factors for false or unreliable statements.” He would not offer any opinion about whether Dimas's statements to the police were true or false.

According to Dr. Leo, the techniques used during Dimas's interrogations were of a kind that have been linked to false statements. The officers used a “ploy” of informing Dimas that he had failed the polygraph examination, and told him that the results would be admissible in court. The interrogation was accusatory and based on a presumption of guilt. In addition, the officers tried to induce a confession by telling Dimas that admitting guilt would be in his self-interest. The interrogation the following day involved similar, albeit more “muted” inducements to give a confession.

On cross-examination, Dr. Leo acknowledged that he had not interviewed Dimas. Dr. Leo admitted he did not evaluate Dimas to assess his particular susceptibility to any interrogation techniques. Dr. Leo agreed that Dimas had spoken voluntarily to police during his interrogations, but opined that “any” interrogation which includes threats or promises, whether implied or explicit, will be “psychologically coercive” insofar as a confession is concerned. Dr. Leo conceded that there was no established scientific foundation for measuring how often false confessions are made because it is difficult to know the number of false confessions that have actually been provided by suspects. He acknowledged there is insufficient data on the subject.”

After this review the Court of Appeals concluded “In our view, Dimas's case falls somewhere in between Hall and Page, and best fits the Ramos model. We reject Dimas's claim of expert witness error because the record supports the trial court's conclusion that Dr. Leo's testimony would not have been helpful. There is no evidence in the record suggesting that Dimas ever refuted his confession, or that Dr. Leo had any reason to believe Dimas's confession was false. Absent some evidence indicating that Dimas was susceptible to making a false confession there was little for Dr. Leo to offer to the jury other than an abstract, academic discussion on the subject of false confessions. Such testimony would have been unrelated to a substantive foundation concerning Dimas' case. Dimas did not testify about his experience during the interrogations, and Dr. Leo acknowledged that he never interviewed Dimas. We will not find the trial court abused its discretion in rejecting Dr. Leo's testimony because we cannot say that the trial court's ruling was arbitrary or beyond the bounds of reason in light of all of the circumstances. ( People v. Carbajal (1995) 10 Cal.4th 1114, 1121.)

For the same reason, we find the trial court's ruling under Evidence Code section 352 was also correct. Dr. Leo's proffered testimony, presented in a vacuum, created a substantial danger of confusing the issues or misleading the jury.”  Click here for the complete decision.

Does “hope of benefit” nullify a confession?

In the case of State v. Brown (March 2011) the Court of Appeals of Georgia found that a statement to the suspect by the interrogator that “no matter what you tell me or say… you’re going home” did not create such a “hope of benefit” when viewed in light of the totality of circumstances.

“ The reward of a lighter sentence is generally what is meant by the phrase “hope of benefit,” as used in OCGA § 24-3-50. When an accused is made a promise concerning a collateral benefit, however, his subsequent confession is not excludable. Indeed, we have previously held that statements referring to an accused going home after an interview are collateral promises that in no way relate to the sentence or charges facing the suspect. Additionally, we have held that a hope of benefit may be dispelled by a statement that an officer has no influence over an accused's possible punishment.

And here, the videotaped confession shows that Brown inquired as to what would happen to him, hypothetically, if he had done what the child alleged. One of the investigators responded, “First of all, ... I'm not gonna sit here and tell you what a judge is going to do ... I can't tell you what the penalties are because I'm not the judge. And I'm not even going to go out on that limb.” The second investigator then said, “I mean, we can't sit here and promise you anything or tell you anything.... What I can tell you is ... when you leave here, no matter what you tell me or say ... you're going home.” The second investigator continued to tell Brown that “if you tell me it happened, I'm not going to snatch you up, place you in handcuffs and drag you back there in the back ... I'm not going to ruin that relationship by snatching you up.” The first investigator then said, “Unless you killed somebody. Now if you killed somebody, you ain't going home.”

The statement that Brown would not be arrested on the spot was collateral and clearly not the type of “hope of benefit” contemplated by OCGA § 24-3-50. But even assuming that this statement was not collateral, any hope of benefit was clearly dispelled by the officers' assertions that they had no control over what would ultimately happen to Brown. Furthermore, throughout the interview-before, during, and after his confession-Brown expressed an understanding that there would be consequences for his actions. Indeed, shortly after the investigating officers made the allegedly confession-inducing statements, Brown continued to deny that he had done anything to the child. The investigators then asked Brown what he thought should happen to somebody who did what was alleged, and Brown speculated that such a perpetrator would face jail time, probation, and rehabilitation. Additionally, when investigators said “[i]t's not going away,” Brown said that he understood that was the case and that there would be consequences for his actions. One investigator even said that he would not tell Brown that there would not be consequences for his actions.

And when Brown eventually confessed to placing the child's penis in his mouth, the investigator immediately responded, “You know I can't let you get up and walk out of here with what you just told me,” and then proceeded to recite to Brown his Miranda rights. Brown acknowledged his understanding of the investigator's statements and at no point attempted to retract his confession, instead repeatedly saying, “I'm screwed.” Brown also repeatedly attempted to continue speaking with the officer who maintained that he could not speak to Brown any further unless and until Brown first signed the Miranda waiver form. Moreover, throughout the significant amount of time between his first confession and his signing of the Miranda waiver, Brown indicated several times that he knew he was going to jail. Brown also asked the investigator what would happen after the interview, and the investigator responded that Brown would be charged, booked, and go to court; but the investigator also advised that he could not tell Brown whether he would ultimately go to prison. Brown also inquired as to the possibility of posting a bond, and the investigator advised him that he would have no say as to whether Brown received a bond or would instead go to jail. Finally, Brown stated that he knew he would be required to register with the State as a sex offender. After this conversation transpired and Brown signed the Miranda waiver, he again confessed to molesting the child.

Given the foregoing, we cannot agree with the trial court that the investigators' statements that Brown would go home after the interview offered him a “hope of benefit” that would otherwise render his confession inadmissible. Here, immediately before telling Brown that he would go home after the interview, the officers said that they could not promise him what a judge would do if he confessed to molesting the child. Morever, Brown repeatedly expressed a keen understanding that there would indeed be serious consequences for his actions. Accordingly, as indicated by his own statements in the interview, Brown could not have reasonably understood the investigators' statements to mean that he would never be charged or arrested for his crimes.”  Click here for the complete decision.

Court rejects the testimony of Dr. Sol Fulero on false confession issues

In the case of State v. Langley (April 2011) the Court of Appeal of Louisiana, Third Circuit, upheld the lower courts decision to exclude the testimony of Dr. Sol Fulero on false confession issues.

“The defendant also notes in support of his arguments below, that he sought to introduce the testimony of forensic psychologist Dr. Sol Fulero. The defendant argues the court should have heard Fulero's testimony… the judge indicated that he did not think the testimony would assist him in reaching a decision regarding whether the defendant gave a false confession.” Click here for the complete decision.

Court finds confession inadmissible due to interrogator threats and promises

In the case of U.S. v. Ellington (March 2011) the U.S. District Court, S.D. Texas, Houston Division, stating that “In this case, the coercive conduct of the law enforcement officials that participated in planning and executing Ellington's interrogation is the critical factor that leads the Court to conclude that Ellington's statement was involuntary. Indeed, the Court is deeply troubled by the course of official conduct that ultimately caused Ellington to waive his rights and make an incriminating statement. The agents employed threats of significantly greater punishment for Ellington and his wife and made illusory promises of leniency if Ellington “cooperated.” They then made Ellington's sole opportunity to cooperate contingent upon his willingness to waive his right to counsel and incriminate himself. When considered together, as they were intended to be, these pressures were plainly coercive and, ultimately, caused Ellington to make a statement that was not the product of his free and rational choice.

In sum, both the agents and AUSA Rodriguez told Ellington that he was being presented with his sole opportunity to cooperate. If he chose not to give a statement during the interrogation, the charges against him and his wife would be “stacked.” Indeed, the agents and AUSA Rodriguez threatened Ellington with the prospect of extreme consequences if he refused to provide an incriminating statement, while at the same time made an illusory promise that, if he gave an incriminating statement and was able to provide substantial assistance, he could avoid the maximum consequences, avoid going to jail that day, continue receiving a pay check for some period of time, and keep his wife out of prison. “In many ways, both types of statements are simply different sides of the same coin: ‘waive your rights and receive more favorable treatment’ versus ‘exercise your rights and receive less favorable treatment.’ ” United States v. Harrison, 34 F.3d 886, 891 (9th Cir.1994). Viewed either way, the agents formulated an extraordinarily frightening threat coupled with an attractive inducement, making it “apparent that the prosecutor and police went to extraordinary lengths to extract from [Ellington] a confession by psychological means.” Ferguson v. Boyd, 566 F.2d 873, 877 (4th Cir.1977).”  Click here for the complete decision.