Legal Update Summer 2009

Court rejects testimony of Dr. Richard Leo on false confession issue

In the case of People v. Lucas, (July 2009) the Court of Appeal, Third District, California upheld the trial court's decision to exclude the testimony of Dr. Richard Leo on the subject of false confessions and police interrogations. The trial court had refused to allow Dr. Leo to testify, concluding that nothing that the doctor had to say would assist the jury and that there was "not a shred of evidence before us at this point to render a basis for any opinion by Dr. Leo that the confession was false...." In their review of the case the Court of Appeals stated that "Because the jury's verdict was well grounded in convincing, objective evidence and did not demonstrate a blind acceptance of the prosecution's interpretation of defendant's "confession," we cannot say a more favorable verdict was more likely had Dr. Leo been permitted to testify."
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Expert testimony on fabrication of confessions by inmate informants rejected

In the case of People v. Curl, the Supreme Court of California upheld the trial court's decision that expert testimony on fabrication of confessions by inmate informants was unfounded. In this case the defendant attempted to introduce the testimony of Raymond Stevens, a private investigator, as an "expert to explain how an inmate informant can obtain information used to concoct a confession that was never made." Defendant contended that his testimony would have been relevant to show how David DeSoto (the informant) "could assemble information about the accusations against [defendant] in order to create a fictitious confession...."
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Court rejects claim confession was involuntary due to marijuana and alcohol use

In the case of Parker v. Allen, the United States Court of Appeal, Eleventh Circuit, upheld the trial court's decision to reject the claim that the defendant's confession was made involuntarily due to the influence of drugs and alcohol on his state of mind at the time. At trial the defense expert opined that by the time of his statement at 5:30 P.M., Parker would have been in a mixed state of alcohol and marijuana intoxication and alcohol withdrawal. He explained that Parker would have been suffering from anguish, desperation, discomfort, and pain as a result of alcohol withdrawal compounded by his inability to inject Talwin. He stated that the combination of withdrawal, brain damage, and neuropsychological deficits would have altered Parker's judgment and made it more difficult for him to control his impulses. He explained that, "driven by a combination of intoxication[,] addiction withdrawal[,] and memory problems" "more than his will," he may have understood the basic questions but would have felt "an extreme amount of urgency to say yes to anything that he thought would get him ... home." He noted that the sedative drugs that Parker was using, alcohol and marijuana, would have acted as a truth serum to "loosen his control over his own willful processes."
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Court upholds Miranda waiver by 15 year old

In the case of State v. Fardan, the Minnesota Court of Appeals found the Miranda waiver of a 15 year old to be valid and that the Appellant's single request for his father, which the district court noted was established only by appellant's own testimony, was simply not enough to indicate that he was invoking his right to remain silent. "The Supreme Court has repeatedly rejected a per se rule requiring parental presence at interrogations of juveniles."
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Court upholds Miranda waiver of 14 year old

In the case of In re Jeffrey W. (July, 2009) the Court of Appeals of Arizona upheld the trial court's decision to admit the confession of a 14 year old who subsequently appealed on the basis that "his lack of prior police contact, young age, mental and cognitive deficits, [and] upbringing to respond to authority, all clearly manifested an inability to waive his Miranda rights," thus rendering his confession involuntary.

The Appeals court found that the State presented adequate evidence at the voluntariness hearing that Jeffrey understood and voluntarily waived his rights. Detective F. testified, and the video recording of the interview confirmed, Jeffrey told Detective F. he understood each right after it was read and explained to him, he did not ask for further clarification, and he signed a written waiver of his rights. Further, Jeffrey invoked his right to have a parent present during the interview when advised he could do so, and Detective F. waited until Jeffrey's mother arrived to begin formally questioning him. And, although there was evidence Jeffrey's cognitive abilities were below average for his age, "[l]ow intelligence, in itself, will not invalidate an otherwise knowing and intelligent waiver." Under these circumstances, we see no abuse of discretion.
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Appeals court reverses admissibility of a confession from an 11 year old because of the interrogator's behavior

In the case of State in the interest of J.E.T. (May, 2009) the Court of Appeals of Louisiana reversed the trial court's decision to admit the confession from an 11 year old, stating that "Considering the entire sequence of events from the time the Juvenile was picked up to the time his interview was concluded, we conclude that the eleven-year-old Juvenile's waiver was improperly induced by threats, coercion, and intimidation. The Juvenile was alone with detectives during the drive to the sheriff's office, with one detective admittedly "joking" about harming the Juvenile. After the Juvenile arrived, he entered the building without his family, via the entrance for suspects. The Juvenile's mother did not stay by his side to protect him, but chose to stay behind while her son was interrogated for two hours with his stepfather, a man with whom he had a strained relationship and whose biological daughter was the victim.

During the interview, the Juvenile was threatened to tell the truth "or else," he was cursed at, and he possibly had objects thrown at him. The timing of the incident involving the lights is not entirely clear and may have occurred after the interview had concluded. The incident, nonetheless, is demonstrative of the Juvenile's fear and lends further support to the credibility of the Juvenile's claim that he was intimidated, threatened, and coerced to waive his rights and confess to the offense, as well as Detective Primeaux's willingness to intimidate, threaten, and coerce a suspect."
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Ambiguous request to stop the interrogation - "this conversation is over"

In the case of People v. Platt, (July 2009) the Court of Appeals of Michigan found that the defendant's statement to his interrogator that "this conversation is over" was not an unambiguous request to stop the interrogation. The court stated "A review of the context of the comment indicates that defendant did not indicate to the detectives that he no longer wished to speak with them. Rather, defendant's comment was an equivocal statement that he was not going to change his story, and there was no point in any further questioning on that subject matter. Because the statement did not unequivocally indicated that defendant wanted to remain silent, the police were not required to cease the interview.
Additionally, defendant continued to speak to the detectives after he made the statement, which is especially notable in light of defendant's testimony that he has had multiple contacts with police, was read his Miranda rights on several previous occasions and was aware of how to invoke those rights. Because the statement was equivocal and not intended to terminate the interview, the trial court properly denied defendant's motion to suppress the statement on that ground.
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Ambiguous request for an attorney - "I don't know if I need an attorney or not"

In the case of Blakeney v. State, (July 2009) the Court of Appeals of Mississippi ruled that the defendant's statement - "I need to talk to somebody[.] I don't know if I need a lawyer or not" was not an unambiguous request for a lawyer. The court stated "After reviewing the testimony from the suppression hearing, we find that Blakeney's statements-"I need to talk to somebody."; "I don't know if I need a lawyer or not."; and "Do I have the right to stop talking?"-were at best ambiguous requests for an attorney. We also find that the investigators did not overstep constitutional parameters in following up on these statements with further questions regarding this statement.

In Holland v. State, the Supreme Court determined that the defendant's question-"Don't you think I need a lawyer?"-was an ambiguous invocation of his right to counsel and the police detective's follow-up questions were within constitutional parameters. The officers reminded the defendant of his right to counsel and that if he did not want to talk to them he did not have to continue with the interview. Id. at 858. The defendant responded, "Ok," that "he would talk to them." Id. The officers again advised the defendant of his rights, which he again waived before confessing.

When Blakeney made the statement, "I don't know if I need an attorney or not," Officer Perkins reminded him that he could ask for an attorney and the interview would be terminated. Blakeney responded, "We'll talk." The investigators repeatedly told Blakeney throughout both interviews that he could stop talking and call an attorney. The investigators also told Blakeney several times that they could not advise him whether or not he needed an attorney. As for Blakeney's assertion that Officer Perkins told him he could not have an attorney until after he was indicted, we find that even if taken as true, this was clarified at the beginning of the first interview when Blakeney signed the waiver of rights. Therefore, we find that the trial court did not err in finding that Blakeney did not invoke his right to counsel. This issue is without merit."
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Court rejects claim that officers created an environment that caused defendant's will to be overborne

In the case of State v. Goodwin, the South Carolina Court of Appeals upheld the defendant's confession as voluntary. Goodwin maintained that the trial court abused its discretion by admitting his statements into evidence when the officers created an environment that caused his will to be overborne.

Here, Goodwin maintains his will was overborne by the culmination of police tactics used during his interrogation. Specifically, he cites the officers' lying about evidence, threatening inappropriate and unjustifiable police action against his family members, strongly suggesting they could influence the State's decision to seek the death penalty, and numerous emotional appeals relating to his family.

When considering the Withrow factors to determine the voluntariness of Goodwin's statement, we find the trial court properly admitted Goodwin's statements. Goodwin evidenced his knowledge of the judicial system in the audio taped interview when he initiated a conversation about his probable sentence. The initial interrogation lasted seventy minutes, and Goodwin was offered food, drink, and the opportunity to use the facilities. Moreover, the first four statements were at the police station, in an interview room and in the officers' offices. The fifth interview was at the jail, and the sixth was during an excursion from jail. Furthermore, the questioning was at the most a continuous seventy minutes, and while there were six individual statements, all occurred within a three-day period.
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Court finds that interrogator conduct "overbore" defendant's will and rules that the confession is inadmissible

In the case of US v. Sanchez, (June 2009) the United States District Court, D. Nebraska, ruled that "Because the officers overbore Sanchez's will, Sanchez's confession should be found involuntary, and therefore, inadmissible."

The court describes the interrogator's conduct as follows:

"In determining whether the officers' conduct overbore Sanchez's will, the court will examine the officers' conduct and Ms. Huffman's conduct. As an initial matter, the officers' interrogation of Sanchez could have taken place at Sanchez's home, but the officers chose to conduct the interrogation at the police station. The facts of this case indicate the officers were angry and intimidating, they got close to Sanchez's face, and they were yelling at and badgering Sanchez. Officers told Sanchez he was "going to jail," and threatened him with charges of attempted murder and assault with a deadly weapon. Additionally, the officers' suggestion of possible retaliation by the victim's brother, who was known to be dangerous, may reasonably be considered a threat to a person in Sanchez's position. Such a threat of possible violent retaliation may be considered particularly coercive in light of the fact Officer Rave knew Sanchez had younger sisters. Finally, allowing Sanchez to see a photograph of the victim's injuries may have been a significant factor in overbearing the will of Sanchez, given his level of immaturity, low tolerance for resisting others' influence, and seeing his mother emotionally upset after viewing the graphic photograph of Rodriguez' injuries."
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"Custody does not occur merely because the suspect submits to and fails a polygraph test"

In the case of Shaw v. State, the Texas Court of Appeals upheld the defendant's confession which was made after taking a polygraph examination. The defendant had claimed that once the polygraph was completed, "the tone, demeanor, and purpose of the interview changed dramatically" and the interview became custodial." The defendant also claimed that "continued questioning after a polygraph examination in an attempt to garner a confession makes the interview custodial, citing to Bailey v. State. However, "custody does not occur merely because the suspect submits to and fails a polygraph test," Dowthitt, 931 S.W.2d at 255, nor does custody occur merely because the interviewee is the focus of the investigation."
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Confession suppressed when suspect questioned in his home without Miranda advisement

In the case of State v. Schultz, (July 2009) the Supreme Court of Kansas upheld the suppression of the defendant's confession because he was not advised of his rights when questioned in his home. The Supreme Court stated that : "The record before us contains ample substantial competent evidence to support the district judge's legal conclusion that Schultz was subjected to a custodial interrogation, even though the questioning took place in Schultz' apartment. The two uniformed officers kept Schultz and his girlfriend under constant observation as soon as they entered the apartment and saw them. Rhodd told Schultz to sit down at the dining room table; later he would tell Schultz to stay in the living room while he completed his search. Rhodd also asked Kinnett to watch Schultz and his girlfriend while Rhodd obtained the consent form. The officers also denied the girlfriend's request to leave the apartment. There can be little question, based on Rhodd's testimony, that Schultz was a felony suspect, not a mere witness, at least as soon as the marijuana in the spare bedroom was found. The site of the interrogation and Schultz' mode of arrival there are not persuasive in either direction. Although Schultz might ordinarily be expected to feel and exercise a certain amount of control over events in his apartment, he and any other reasonable person would be unlikely to leave once police officers were standing inside. On the last factor, the interrogation and search led to Schultz' arrest and trip to the police station, not to his release. Moreover, although we view the situation from the perspective of a reasonable person in Schultz' circumstances rather than from the officers' subjective viewpoints, it is noteworthy that Rhodd and Kinnett acknowledged Schultz would not have been free to leave at any point after they smelled marijuana. This occurred immediately upon their entry into the apartment.

The wisest course for the officers would have been to give Schultz his Miranda warnings as soon as they restricted his free movement from their presence and before they began to ask him questions. Their failure to do so at least theoretically imperiled the admissibility of any evidence they gathered after Schultz was instructed to sit down at the dining room table."
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Telling the suspect that the prosecutor will be advised of their cooperation does not constitute a promise of leniency; suggesting the homicide was an accident or self-defense was not coercive

In the case of The People v. Carrington, (July 2009) the Supreme Court of California upheld the confession that the defendant killed three people and examined each interrogation to assess the defendant's claims that she confessed due to promises of leniency.

In their opinion the Supreme court stated that the "Defendant also contends that Detective Lindsay's assurances that the police merely were attempting to understand defendant's motivation in committing the crimes impermissibly coerced her to confess. To the contrary, Detective Lindsay's suggestions that the Gleason 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."

They also stated that "The statements made by the officers did not imply that by cooperating and relating what actually happened, defendant might not be charged with, prosecuted for, or convicted of the murder of Esparza. The interviewing officers did not suggest they could influence the decisions of the district attorney, but simply informed defendant that full cooperation might be beneficial in an unspecified way. Indeed, defendant understood that punishment decisions were not within the control of the police officers. As noted above, she said it "just depends on the judge and DA and how are they going to prosecute it." Under these circumstances, Detective Sherman's statement that he would inform the district attorney that defendant fully cooperated with the police investigation did not constitute a promise of leniency and should not be viewed as a motivating factor in defendant's decision to confess."
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What constitutes a threat during an interrogation?

In the case of State v. Evans, (May 2009) the Supreme Court of New Mexico examined the defendant's claim that his September 18, 2005 statement to police, admitting culpability in the victim's death, should have been suppressed because the police used coercive tactics which rendered his statement involuntary. Specifically he claimed that the following statements made by the interrogator were coercive:

"You're digging a hole you're not gonna be able to get out of." "This is the one percent of the time, I tell you, if you keep quiet they're gonna hammer you."

"[I]f you leave it like it is, you're through...."

Defendant's interrogator made this statement after Defendant denied involvement in the killing:

"Just because you don't wanna be a rat, you're gonna be treated as a monster in court and you're never gonna get out of prison."

The Supreme Court then discussed what constitutes a threat:

"The critical difference in the case law between impermissibly coercive threats and threats which do not cross the line is in how credible and immediate the accused perceives the threat to be. Threats which the accused may perceive as real have been held to be impermissibly coercive. (holding that where defendant-inmate had a below-average IQ and had already received "rough treatment" by other inmates and was a convicted child murderer, a promise to protect him from further physical violence if he confessed amounted to a "credible threat" of physical violence). On the other hand, threats that merely highlight potential real consequences, or are "adjurations to tell the truth," are not characterized as impermissibly coercive. (holding that police threat to the defendant that the court would "hang [your] ass" if the defendant did not confess, a comment which was disputed by the State, did not render confession involuntary). It is not per se coercive for police to truthfully inform an accused about the potential consequences of his alleged actions.

Three of the four statements at issue here could be taken as threats: (1) "they're gonna hammer you"; (2) "you're through"; and (3) "you're gonna be treated like a monster in court and you're never gonna get out of prison." All of these statements lie between the two poles described above-the statements are more than adjurations to tell the truth, but less than credible threats of violence. "You're never gonna get out of prison" can reasonably be taken to refer to a potential life sentence-well within reality for a first-degree murder conviction, which is at issue in this case. "You're gonna be treated like a monster in court" appears to be a reference to the way those in court might perceive Defendant. The comment may be a stretch or an exaggeration, but it is not out of the realm of a real possibility. Agent Ness never specified what he meant by "you're through," or who he was referring to as "they" in "they're gonna hammer you." Both statements, taken in isolation, could be taken as a threat of physical violence. However, taken in context with the entire interrogation, where Agent Ness repeatedly communicated to Defendant that he was not interested in vengeance, and certainly not in physical vengeance, the statements-vague though they are-cannot credibly be taken to threaten Defendant with physical violence.

Our case law makes clear that deception is not coercive per se. ( "[D]eception, in itself, is not a basis for ruling, as a matter of law, that a confession should be suppressed."). The degree of deception is but one factor to consider in deciding whether a confession was given contrary to the accused's free will. Considering the deception as one factor in our analysis, we must also consider Defendant's probable reaction to those statements. At the time of the confession, Defendant was a 30-year-old man who, in the district court's words, was "in full control of his faculties," and who had prior exposure to the criminal justice system. Agent Ness made veiled and somewhat ambiguous threats to Defendant, but unlike the "mentally dull" teenage defendant in Payne v. Arkansas, or an illiterate defendant with mental retardation, as in Culombe. Defendant had an adult capacity to sort exaggerated tough talk from real threats. There is certainly a point at which police threats, promises, or deception, would cross the line into coercion, but that line has not been crossed here."
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What constitutes permissible deception by the police during an interrogation? Three cases - Rubio, Mays and Lee

In the case of People v. Rubio (July 2009) the Appellate Court of Illinois Second District upheld the admissibility of a confession the defendant claimed was the result of coercive police deception. From the Appellate Court opinion:

"In urging that his confession was involuntary, defendant emphasizes that the detectives misled him as to the strength of the evidence against him by insinuating that the shooting had been filmed and that several witnesses had identified him as the person who shot the victim or escaped the scene after the shooting. However, defendant correctly concedes that "police trickery, standing alone, does not invalidate a confession as a matter of law." Frazier v. Cupp, ("The fact that the police misrepresented [the evidence] is, while relevant, insufficient in our view to make this otherwise voluntary confession inadmissible"); ("A misrepresentation which prompts inculpatory statements is only one factor to be considered in determining the voluntariness of the resulting statements"). In Frazier, Kashney, and Martin, police or the prosecution falsely exaggerated the evidence against the defendants, and the defendants thereafter confessed their guilt. See Frazier, (defendant falsely told that his accomplice had confessed); Kashney, (prosecutor falsely told defendant that his fingerprints were found at the crime scene); (defendant falsely told that an accomplice had identified him as " 'the triggerman' "). The courts held the confessions to have been voluntary and admissible.

Defendant recognizes the above line of precedent and instead relies on another case, People v. Bowman, to support his argument that the police deception here rendered his confession involuntary. In Bowman, police enlisted the defendant's cell block mate to convince the defendant, who was "intensely fearful" of being returned to a particular correctional center in which he had spent four years, "that if [the defendant] [confessed], [he] would avoid a transfer to [the correctional center] and stay in the county jail long enough for [the cell block mate] to be released from jail, to return, and to assist in [the defendant's] escape." Bowman. The appellate court affirmed the trial court's judgment that the defendant's confession was involuntary; it concluded that police used deceptive interrogation tactics, calculated to take advantage of the defendant's intense fear of returning to the correctional center, as a means to overcome the defendant's free will.

We see a wide chasm between Frazier, Kashney, and Martin on one hand and Bowman on the other. In Frazier, Kashney, and Martin, the deception related to the ability to prove the defendants' involvement in the crimes; in Bowman, the police used deception to offer the defendant a provocation to confess extrinsic to the interrogation process. In an appeal of a habeas corpus proceeding in an Illinois case, the Seventh Circuit aptly described the difference between these two types of deception:

"Of the numerous varieties of police trickery * * *, a lie that relates to a suspect's connection to the crime is the least likely to render a confession involuntary. [Citations.] Such misrepresentations, of course, may cause a suspect to confess, but causation alone does not constitute coercion; if it did, all confessions following interrogations would be involuntary because 'it can almost always be said that the interrogation caused the confession.' [Citation.] Thus, the issue is not causation, but the degree of improper coercion * * *. Inflating evidence of [the defendant's] guilt interfered little, if at all with his 'free and deliberate choice' of whether to confess [citation], for it did not lead him to consider anything beyond his own beliefs regarding his actual guilt or innocence, his moral sense of right and wrong, and his judgment regarding the likelihood that the police had garnered enough valid evidence linking him to the crime. In other words, the deception did not interject the type of extrinsic considerations that would overcome [the defendant's] will by distorting an otherwise rational choice of whether to confess or remain silent."

We agree with the Seventh Circuit and conclude that the police deception here had little, if any, undue coercive effect."
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A fake polygraph test did not render involuntary the defendant's incriminating statement

In the case of People v. Mays, (May 2009) the Court of Appeal, Third District, California found that "mock polygraph test administered to defendant after he requested a lie detector test during detective's questioning, and fake test results, did not render involuntary defendant's incriminating statement, after he received the fake test results.." From the court's decision:

Police deception during a custodial interrogation may but does not necessarily invalidate incriminating statements. A psychological ploy is prohibited only when, in light of all the circumstances, it is so coercive that it tends to result in a statement that is both involuntary and unreliable. [undercover law enforcement officer posing as fellow inmate was not required to give Miranda warnings to suspect.

As summarized in People v. Chutan: "Police trickery that occurs in the process of a criminal interrogation does not, by itself, render a confession involuntary and violate the state or federal due process clause. Why? Because subterfuge is not necessarily coercive in nature. And unless the police engage in conduct which coerces a suspect into confessing, no finding of involuntariness can be made.

"So long as a police officer's misrepresentations or omissions are not of a kind likely to produce a false confession, confessions prompted by deception are admissible in evidence. [Citations.] Police officers are thus at liberty to utilize deceptive stratagems to trick a guilty person into confessing. The cases from California and federal courts validating such tactics are legion. [officer falsely told the suspect his accomplice had been captured and confessed]; [officer implied he could prove more than he actually could]; [officers repeatedly lied, insisting they had evidence linking the suspect to a homicide]; [wounded suspect told he might die before he reached the hospital, so he should talk while he still had the chance]; [police falsely told suspect a gun residue test produced a positive result]; [officer told suspect his fingerprints had been found on the getaway car, although no prints had been obtained]; and [suspect falsely told he had been identified by an eyewitness]. [defendant's confession to child molestation was not rendered involuntary by officer's failure to reveal he was conducting a criminal investigation and not just asking questions regarding placement of the children.

People v. Smith, held it was not impermissibly coercive for a police officer to tell the defendant that a "Neutron Negligence Intelligence Test" (a sham) indicated he had recently fired a gun. Additionally, the sham did not elicit a full confession, but only incriminating statements.

People v. Farnam, held the defendant's confession to robbery and assault of hotel occupants was voluntary, despite the police having falsely informed the defendant that his fingerprints were found on the victim's wallet. In California, it has been held that if a defendant takes a lie detector test willingly, " 'neither the fact it was given nor the fact that the defendant was told by the test giver it revealed in his opinion that defendant was not telling the truth, inherently demonstrates coercion. [Citation.]' "

Courts in other states have held defendants' confessions/admissions voluntary where the police told the defendant he or she failed a polygraph test, when no real test was performed, or a real test was given but did not show deception by the defendant, or the police misled the defendant as to the accuracy of the test or its admissibility in court. [confession voluntary despite police (apparent) deception in informing the defendant that he failed a polygraph examination]; [confession voluntary where defendant was hooked up to a polygraph, but it was not turned on]; [affirmed conviction based on confession obtained after the police (perhaps) untruthfully told the 17-year-old defendant that he failed a computer voice stress analyzer, when in fact the test did not so indicate, or did so unreliably]; [police misrepresentations to defendant concerning performance on polygraph test did not invalidate confession].)

Here, we disagree with defendant's view that the police engaged in shocking and outrageous misconduct. The request for a polygraph examination was initiated by defendant, not by the police. The deception was a mock polygraph. A polygraph is designed to elicit the truth, and the police already had information from other sources that defendant was the shooter (including Schallenberg's identification of defendant as the gray-clad person in the AM/PM photo, and eyewitness statements that the gray-clad person was the shooter). The use of the mock polygraph was not likely to produce a false confession. Although defendant testified he believed polygraphs are 100 percent accurate, that belief was not induced by the police. Moreover, we know the trickery was not particularly coercive because, even after the police showed defendant the fake test results, defendant continued to deny involvement in the crime. He merely admitted being present at the scene wearing a gray sweatshirt. It was other evidence, other than defendant's statements, which gave his admission its weight, i.e., the AM/PM surveillance photo of a gray-clad male, Schallenberg's identification of defendant as the gray-clad male in the photo, and the testimony of eyewitnesses that the gray-clad male was the shooter. (Although the prosecutor used defendant's admissions in closing argument to the jury, he used them as corroboration for the other evidence.)
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Can an interrogator tell a suspect "this is just between you and me" when, in fact, the interrogation is being recorded and the recording will be used against the suspect?

In the case of Lee v. State, (July 2009) the Court of Special Appeals of Maryland upheld a trial court's decision to admit the confession of a defendant who had been led to believe by the interrogator that their conversation was "just between you and me" when it was actually being recorded. From the court's decision:

"Appellant's first contention is that the circuit court erred in denying his motion to suppress the statement that he gave to the police following his arrest. This contention is based on an exchange between appellant and Detective Schrott, which occurred after appellant had waived his Miranda rights, and after some discussion of the events of the evening. This exchange was as follows:
[APPELLANT:] Yeah, this is being recorded [somewhere aint it?]

[DETECTIVE:] This is between you and me, bud. Only me and you are here, all right? All right?

Although the suppression court initially expressed "some concern" that the statement vitiated the Miranda waiver, it ultimately denied appellant's motion to suppress, stating:

The statement he makes is, this is being recorded, ain't it? The Detective does not directly answer that question by saying yes or no, but he certainly leaves the Defendant to believe that the conversation is just between the two of them, which was not true. But I do not think that the, it changed the Defendant's willingness to answer the questions in any way. Or violated his rights. So the Motion to Suppress the Defendant's statement is denied."

The Court of Special Appeals found that "Here, unlike the cases cited, supra, there was no express promise that the defendant's statements would remain confidential or that the statements were "off-the-record." Detective Schrott merely responded to appellant's query regarding whether the interrogation was being recorded by stating: "This is between you and me, bud. Only me and you are here, all right? All right?" As the State notes, this statement did not reflect any agreement of confidentiality. Rather, it was an equivocal response that was designed, not to establish a confidential relationship, but to deflect appellant's suggestion that he was aware that the interrogation was being recorded. We view Detective Schrott's response as sidestepping appellant's question regarding whether the interrogation was being recorded.

Even if the response is viewed as an affirmative misstatement that the interrogation was not being recorded, however, such a response would not violate Miranda. "There is no requirement that a defendant who has properly been given Miranda warnings must also be told he ... may be tape-recorded or video-recorded or both." State v. Vandever, 714 A.2d 326, 328 (N.J.Super.Ct.App.Div.1998), cert. denied, 834 A.2d 405 (2003). Police deception regarding whether an interrogation is being recorded, does not contradict the Miranda warning that anything the suspect says can be used against the suspect. A police officer's false statement that an interrogation is not being recorded, when in fact it is being recorded, does not render a confession inadmissable. State v. Wilson, 755 S.W.2d 707 (Mo.Ct.App.1988). "
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What IQ score precludes a defendant from making a knowing and intelligent waiver of their rights?

In the case of People v. Daniels, (May 2009) the Appellate Court of Illinois, First District, Sixth Division overturned the trial court's decision to admit the defendant's incriminating statement. They found that the defendant, with a full-scale IQ between 55 and 64 could not make a knowing and intelligent waiver of her rights. In their decision they referenced several cases that dealt with the IQ issue:

Consequently, in light of the testimony of the court-appointed experts and after viewing the videotaped confession, we are compelled to disagree with the findings of the trial judge and the ruminations upon which these findings are premised. See, e.g., Turner, (reversing the trial court's denial of defendant's motion to suppress his confession based on defendant's inability to intelligently and knowingly waive his Miranda rights where the totality of the evidence revealed that the 25-year-old defendant had an IQ of 70, which placed him in the lower 10% of the general population); see also Redmon, (reversing the circuit court's denial of defendant's motion to suppress his confession based on defendant's inability to comprehend Miranda warnings, where the totality of evidence established that the 17-year-old defendant had an IQ of 70 or 71 which placed him in the lower 10% of the general population, and a reading ability of a fifth grader); M.W., (affirming the decision of the circuit court to suppress defendant's confession where the totality of the circumstances revealed that defendant lacked the mental capacity to understand Miranda warnings because: (1) he was 13 years old, (2) had a full scale IQ between 52 and 54, which placed him in the borderline mentally retarded range of intellectual functioning, (3) had the reading and spelling level of a second grader, (4) had a history of being in special education classes, (5) in psychiatric evaluations exhibited concrete rather than an abstract thinking, and (6) could not explain the difference between "right" or "silent"); Braggs, (reversing the trial court's denial of defendant's motion to suppress based on defendant's inability to understand her Miranda warnings, where the circumstances revealed that the 29-year-old defendant had an IQ of 54, suffered from moderate mental retardation, had no prior contact with the criminal justice system, and had been initially found unfit to stand trial).

The court further stated that "Moreover, our courts have repeatedly held that "[t]he greatest care" must be exercised when evaluating the confessions of youthful or mentally deficient defendants, so as to assure that any incriminating statements made by such individuals were not "the product of ignorance of rights or of * * * fantasy, fright or despair. As the supreme court in Braggs explained:

"[I]t is generally recognized that the mentally retarded are considered more susceptible to police coercion or pressure than people of normal intellectual ability, they are predisposed to answer questions so as to please the questioner rather than to answer accurately, they are more likely to confess to crimes they did not commit, they tend to be submissive, and they are less likely to understand their rights." Braggs, 209 Ill.2d at 514, 284 Ill.Dec. 682, 810 N.E.2d at 486, citing M. McCloud, G. Shepard, A. Barkoff, & J. Sure, Words Without Meaning: The Constitution, Confessions, and Mentally Retarded Suspects, 69 U. Chi. L.Rev. 495, 503, 538 (2002), and P. Hourihan, Earl Washington's Confession: Mental Retardation and the Law of Confessions, 81 Va. L.Rev. 1471, 1473 (1995) ("Mentally retarded persons are more susceptible to coercion, more likely to confess falsely, and less likely to understand their rights than people of normal intellectual ability").
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No federal requirement to electronically record interrogation

In the case of US v. Meadows, (July 2009) the United States Court of Appeals, First Circuit, ruled that the judge was not required to give the instruction that since the interrogation was not recorded "the jury should weigh evidence of the defendant's alleged statement with great caution and care."

"Meadows directs us to precedent from the Massachusetts Supreme Judicial Court that requires, upon a defendant's request, a cautionary instruction about unrecorded statements made during custodial interrogation. See Commonwealth v. DiGiambattista, 442 Mass. 423, 813 N.E.2d 516 (2004). FN6 Meadows relies on the DiGiambattista decision to argue for such a rule and objects to the fact he did not receive such an instruction.

The instruction was not required. Meadows is in federal court, not state court, and as we have held, there is no federal constitutional right to have one's custodial interrogation recorded. United States v. Torres-Galindo, 206 F.3d 136, 144 (1st Cir.2000); see also Roberto Iraola, The Electronic Recording of Criminal Interrogations, 40 U. Rich. L.Rev. 463, 471 (2006) ("The federal courts uniformly have rejected the argument that the Constitution mandates, as a matter of due process, that a defendant's confession be electronically recorded.").
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Confession ruled inadmissible because of faulty advisement of rights

In the case of State v. Mumley, (May 2009) the Vermont Supreme Court ruled that the trial court erred by admitting defendant's custodial statements without conducting the required totality-of-the-circumstances inquiry into the validity of defendant's waiver.

In this case the following occurred during the defendant's video-taped interrogation:

Prior to questioning defendant, the detective warned defendant of his privilege against self-incrimination and his right to counsel as required by Miranda v. Arizona. He read defendant his warnings one-by-one, from a Miranda-waiver form. The form listed each of the Miranda rights followed by the question "Do you understand?" and a blank space for a reply. After reciting each warning to defendant, the detective asked defendant whether he understood. Defendant replied "yes" to each of these questions. The detective recorded defendant's replies on the form.

Underneath the Miranda-rights portion of the form was the title "Waiver," and the following paragraph:

I have been advised of my rights and I understand them. No threats or promises have been made to me. Knowing my rights, I agree to waive them and talk with you now. I understand that I am waiving my right to be represented by an attorney, to talk with an attorney before questioning and to have an attorney present during questioning.

Under this paragraph was a space for the date and time and a space for a signature or "time of taping."
The detective did not read the entire waiver paragraph to defendant. Rather, the detective read only the following: "I have been advised of my rights and I understand them. No threats or promises have been made to me. Knowing my rights, I agree to waive ...." The detective did not provide defendant with the opportunity to read the balance of the form nor did he have defendant sign the form. The following exchange then occurred:

Detective: Do you want to talk to me?

Defendant: What about?

Detective: Ah, what, ah ... you can talk to me, you can tell me to pound sand. You know, those are your rights, okay? Now, it doesn't affect them one way or the other. What I'm concerned about is that, I want to make sure, you know, what happened tonight, you be given an opportunity to, you know, explain your actions which will happen in a court of law. But this is also an opportunity for you, if you want it, you can write down a sworn statement and apologize for what happened tonight. That's something. It's your choice you know.

Defendant: Which is what?

Detective: Do you understand what is going on here at all?

Defendant: No, no, I don't.

Detective: Well, as I stated over at your apartment, you're under arrest for attempted kidnapping.

Defendant: Okay.

The detective made no more attempts to secure a waiver of defendant's rights to silence and to an attorney. Eventually, defendant answered some of the detective's questions.
The Vermont Supreme Court ruled that "Here, the trial court's decision and order denying defendant's motion to suppress contains no consideration of factors indicating a knowing and intelligent waiver of Miranda rights as required by Fare and Malinowski, and no consideration of factors indicating his awareness of his S 5234 rights and the consequences of waiving them as required by S 5237. Instead, as far as we can tell from its order, the court reached its conclusion that defendant made a valid waiver of his rights by "assuming ... that defendant possessed the requisite experience, education, background, and intelligence to understand the nature of his ... rights and the consequences of waiving them." The trial court erred under Malinowski and S 5237 by failing to make the required inquiry."
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Juvenile's confession ruled inadmissible because of several violations of the Texas Family Code

In the case, In The Matter of D.J.C., Appellant, (September 2009) the Court of Appeals of Texas, Houston (1st Dist.) reversed the trial court's decision to admit the confession of a 16 year old defendant, stating that when the interview moved from a non-custodial interview into a custodial environment the juvenile was not given the proper advisement of rights, and it was a violation of the Texas Family Code not to let the defendant's grandmother (his legal guardian) sit in on the questioning.
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Confession found inadmissible due to threats and promises from the investigators

In the case of State v. Pies, (September 2009) the Iowa Court of Appeals reversed the trial court finding that the defendant's confession was admissible and ruled that the confession was actually the result of the "not-so-subtle threat of a long burglary sentence and by the promise of a potential lesser penalty upon confession." In reviewing the matter the Court of Appeals stated the following:

"During questioning, an "officer can tell a suspect that it is better to tell the truth without crossing the line between admissible and inadmissible statements from the defendant." McCoy, 692 N.W.2d at 28. However, the line between admissibility and exclusion is crossed "if the officer also tells the suspect what advantage is to be gained or is likely from making a confession. Ordinarily the officer's statements then become promises or assurances, rendering the suspect's statements involuntary." Hodges, 326 N.W.2d at 348-349.

With these principles in mind, we detail portions of the interrogation:

Officer R: OK. Now, now we are going to shift gears. And I am going to tell you right now I have got enough right now to arrest you and take you to jail for burglary of that hardware store. I am offering you an option here to come clean and lessen the charge and work with us on this thing.... At this point, if you choose not to cooperate, we will take you, I will charge with the full boat of the crime and you will suffer the consequences.

Officer R: We are offering you a break here. To come clean.

Officer S: Let's take care of this problem and lessen the charge or take the full boat of this.

Officer R: Matt, you work with us-the county attorney-we will indicate ... in our report to him, that you ... were very cooperative. Do you want to fight this thing and work against us, then you are going to get charged and it is going to be very serious. Do you want me to read you what the penalty is on that?

Pies: Burglary?

Officer R: Long time jail. Probably up to ten years....

Pies: Oh jees....
Officer R: ... Why are you shaking your head?

Pies: I just feel like I am being backed against the wall here I, mean. Whether I did or didn't do it. You are telling me that you got my garbage.

Officer R: No, no, no, no, no, no. There is no back against the wall. Absolutely none.

Officer S: You know you did it.

Officer R: You know you did it. You are the only one that is going to try to help yourself. If you don't want to help yourself ... that's fine. You say the word, we will cease the conversation. I'll cuff you and take you over and book you in. If you want to help yourself you are going to talk to ... try to lower this penalty down a little bit. ...

[Silence]

Officer R: ... The thing is now we know you did it, you know you did it, help yourself on this thing without burying yourself. Because believe you me, a theft charge versus a burglary charge maybe, maybe looks just a little bit better than burglary.

Officer S: Do you have any of the cash left?

Pies: Are you going to put this deal in writing?

Officer R: What deal?

Pies: Understand that you are going to drop the charge.

Officer R: Matt.

Pies: If I pled guilty.

Officer R: Matt. I can not put anything in writing. It is up to the county attorney. But what I can do is indicate in the report that you ... helped with this thing. And that you were honest. If you don't want to be honest, then that is when it is going to get serious. Mike and I will do everything we can to put in a good word for you to lessen your penalty on this thing, but you got to help us out.

Officer S: You know I know times are hard.

Officer R: You got a family. The county attorney will take that into consideration.

Officer S: We can make a recommendation that the charges be lessened. We told you already that we have enough to charge with your burglary. We are giving you the opportunity to help yourself.

Officer R: How much of the money do you have left? ...

Pies: It's all gone.

Officer R: What did you do with it?

Pies: I bought groceries.

Under the evidentiary test articulated in Mullin, utilized in Quintero, and reaffirmed in McCoy, we conclude the trial court erred in ruling the officers did not make improper promises. Pies's inculpatory statements were improperly induced by the not-so-subtle threat of a long burglary sentence and by the promise of a potential lesser penalty upon confession. Thus, the inculpatory statements were not voluntarily given and "should not have been admitted in evidence because of [the statements'] lack of reliability."
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Court rejects opinion of defense expert, Dr. Christopher Lamps, on coerced confession and waiver of rights issues

In the case of T.C., a minor, Appellant v. State (September 2009) the Arkansas Court of Appeals affirmed the trial court's admission of the defendant's confession, rejecting the suggestion made at trial by a defense expert, Dr. Christopher Lamps, that the defendant "did not freely, voluntarily, or intelligently waive his rights," and that "the actions and the words of the police constituted coercion."
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Value of video taping the interrogation

In the case of State v. Ashley (September 2009) the Louisiana Court of Appeal, Second Circuit, upheld the trial curt's decision to admit the defendant's confession. The defendant had claimed that at the time of his alleged confession he was on painkillers and still "high" from crack cocaine. The court found that "No corroborating evidence was given regarding the existence of the prescription, the fact that it was filled by the jail, or what particular painkiller the defendant claimed to be on. He also claimed that he was in pain from the dog bite and hungry. He asserted that he felt threatened because he was told that he would not be allowed to eat until he answered all their questions.

The recording itself indicates that the defendant mentioned eating twice; when the comments were made, no one is heard indicating that food would be withheld until a confession was forthcoming. To the contrary, the officers responded in a positive manner that the defendant would be fed upon his return to the jail. Furthermore, the sound and content of the defendant's speech during the statement does not bear any of the earmarks of someone under the influence of an intoxicating substance, such as slurred speech or disorientation. Nor is there any indication that the confession was being made under the influence of fear, duress, intimidation, inducements, or promises."
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Court finds confession inadmissible because the Miranda rights were not properly explained to the defendant - a 15 year-old with "borderline intellectual functioning"


In the case of Etherly, Petitioner, v. Schwartz, Respondent (August 2009) the U. S. District Court, N.D. Illinois, Eastern Division found that the trial court was in error in admitting the defendant's confession. The U.S. District Court said that "In this case, police officers and ASA Alesia advised Mr. Etherly of his Miranda rights in a formulaic fashion, then asked him to acknowledge that he understood those rights, but neither the detectives, nor the ASA, nor Youth Officer DiGrazia made any attempt to probe the boy's actual understanding of the rights recited or asked him to explain the meaning of the warnings in his own words. Compare Hardaway, 302 F.3d at 761 (after being advised of Miranda rights, juvenile defendant "explained his rights back to [the ASA] in his own words, stating that he did not have to speak with [her] if he didn't want to, that anything he told [her] she could tell a judge in a trial against him, that he could have an attorney there when he was questioned about the case, even if he or his family couldn't pay for one.") Indeed, the evidence is that the Miranda warnings Mr. Etherly received exemplified the kind of rote "recitals which merely formalize constitutional requirements" that the Court disregarded in Haley because of the defendant's youth. Accordingly, the appellate court arguably transgressed Haley, based on Mr. Etherly's age alone, by according any weight at all to the fact that he formally received Miranda warnings. This transgression reached the level of unreasonable error, however, when factors beyond Mr. Etherly's youth are taken into account.

At the time of his arrest, Mr. Etherly had no criminal history or experience with the criminal justice system.....

Moreover, Mr. Etherly was a learning disabled high school freshman FN9 with "borderline intellectual functioning" and a "very limited vocabulary," who was failing all of his classes and unable to read, write, or spell basic words. These factors underscore the unlikelihood that Mr. Etherly's acknowledgment of his Miranda rights indicated any meaningful understanding of-much less a knowing waiver of-those rights.

For the foregoing reasons, the Illinois Appellate Court's determination that Mr. Etherly's confession was voluntary amounted to a unreasonable application of the Supreme Court's "totality of the circumstances" test."
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Interrogators misrepresentation of evidence is insufficient to make the otherwise voluntary confession inadmissible

In the case of State v. Hardy (August 2009) the Court of Criminal Appeals of Tennessee, at Nashville upheld the admissibility of the defendant's confession. In their opinion they state: "Next, the appellant challenges the admission of his statement on the grounds that officers were deceptive when they told him they could place him in Vanessa Claude's van during the month of the crime by dating hair and fiber evidence. In Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420 (1969), police obtained a full confession from Frazier after they misrepresented to him that his co-defendant confessed. Viewing the totality of the circumstances, the Supreme Court upheld the admission of Frazier's statement, concluding that the misrepresentation was insufficient to make the otherwise voluntary confession inadmissible. We likewise agree with the trial court's assessment in the present case. Under the totality of the circumstances, Detective Downing's misrepresentation about being able to date the appellant's prints in the van was not sufficient to overbear the appellant's will so as to render his confession involuntary.

Finally, the appellant argues that his confession is involuntary because officers impliedly gave him false legal advice when they told him that he would benefit from giving a statement if Lillard had him "snaked up" in something. The trial court found that "the police officers did not give false legal advice" to the appellant during the interrogation. We agree with the trial court that the officers' comments did not amount to false legal advice. Further, we note that such vague statements encouraging cooperation are not sufficient to overbear an accused's will so as to render a statement involuntary."
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Interrogator's repeated references that he could help the suspect rendered the confession involuntary


In the case of Ramirez v. State (July 2009) the District Court of Appeal of Florida, First District, the court found that the interrogator's repeated statements that he could help the suspect were improper. In part the District Court stated that "Here, the detective's constant offers of unspecified help were improper. At one point, the detective said to Appellant, "[I]f you want us to help you, you need to help us also." This statement arguably constitutes an offer of a "quid pro quo" bargain within the meaning of relevant case law. Because this statement is not the only one at issue, however, we decline to reach that conclusion definitively. Instead, we have determined that Appellant's statement was induced by improper police conduct based on the totality of the circumstances. In addition to making this questionable statement, the detective strongly implied that he had some specific benefit in mind that he could confer on Appellant. While offering this benefit that he would explain later, the detective made references to immigration issues, the opportunity to "get out of this," and arguably even the death penalty.

Additionally, when Appellant expressed the belief that the detective, as "the law," could do anything he wanted with Appellant, the detective did not clarify his position. The detective's failure to explain the limits of his authority is one major factor that sets this case apart from other cases upholding officers' suggestions that they could help defendants.....

Another factor that sets this case apart is the constancy of the offers of help, even in the face of clear signs that Appellant did not understand the limits of the detective's authority and that Appellant felt he was being forced to answer questions....

Finally, Appellant's constant requests for the detective to give him more details of how he could help, even in one instance demanding such an explanation before giving an answer, show a preoccupation with the detective's promises and an invited expectation of receiving a benefit in exchange for a statement. Even though Appellant's preoccupation with the promises was readily apparent, the detective never stopped to explain that he had no control over what the prosecutor would choose to do with Appellant's statement.

Under the unique circumstances of this case, the trial court should have excluded the interview from evidence, at least after the point when the detective began to offer "help." Accordingly, we reverse and remand for a new trial to be conducted without the benefit of the involuntary interview statements."
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The interrogator's implication of leniency in exchange for cooperation is not coercive


In the case of Lewis v. Commonwealth (August 2009) the Court of Appeals of Virginia, Richmond the court upheld the admission of the defendant's confession. Specifically, they stated that "according to Lewis' argument, he was coerced to confess because Detective Byrd implied that Lewis would benefit by cooperating, he implied that cooperating would help Lewis see his child, he implied that Lewis' continued cooperation could earn leniency in sentencing, and he told Lewis that a videotape showed "everything."

Detective Byrd implied on several occasions that cooperating might help him obtain some leniency in the future. We held in Washington that the officer's implication of leniency in exchange for cooperation is not coercive. 43 Va.App. at 304, 597 S.E.2d at 262 (The officer's statement was not an actual promise of leniency, and the officer never claimed to have the power to affect the decision of the Commonwealth's Attorney's office.). Here, Detective Byrd never guaranteed Lewis that, by cooperating, he would receive any benefit. The detective did not make any promises to Lewis, and he never indicated that he had authority to dispense leniency in prosecution, sentencing, or visitation rights while in prison. Therefore, according to Washington, Detective Byrd's implication that cooperation might help Lewis in the future is not coercive. Moreover, Detective Byrd's implications that cooperating would help Lewis see his child and gain leniency in sentencing is similarly not coercive."
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The value of video recording the interrogation


In the case of People v. Miner (August 2009) the Court of Appeal, Second District, Division 8 "Miner contends that the court should have granted his motion to suppress his statements to the police, made on the ground that the statements were involuntary-coerced by express and implied promises and threats.

When reviewing the totality of the circumstances on appeal, we accept the trial court's resolution of disputed facts, if supported by substantial evidence, and we independently determine whether the confession was voluntary. Here, the only evidence presented in support of his motion to suppress the statements consisted of the recordings, and there are no factual conflicts relating to Miner's statements to the police.

Miner has selected isolated remarks from the many hours of recorded statements, and he has provided his own interpretation of the remarks by the officers, without regard to the context of the entire interrogation. Our review of the tapes leads us to conclude that the totality of the circumstances demonstrates that the confession was voluntary. We discuss below the selected remarks, and endeavor to do so in the context in which they were made."
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Telling the suspect that if he tells the truth it could be in his benefit to do so and exaggerating the strength of the evidence against him does not render a confession involuntary


In the case of People v. Garcia (August 2009) the Court of Appeal, Second District, Division 2, California the court upholds the admissibility of the defendant's confession. In this case the court found that "The record negates appellant's contention that the officers made an implied promise of leniency in charging or punishing appellant. During the interview, one of the officers explained to appellant that he could be tried as a juvenile or as an adult, but added: " I can't make you any promises and I wouldn't do that but we need to know the truth and we need to know what you were thinking in your heart." (Italics added.) When appellant asked the officers what would happen to him, the officers told him: "You're going to be charged with the murder." They went on to tell him that although they would present his case to the juvenile system, someone other than the officers would make a decision whether he would be tried as an adult. In our view, there was no express or implied promise of leniency.

The officers certainly urged appellant to tell the truth and represented to appellant that it could be in his benefit to do so. These exhortations, however, were within the permissible bounds of telling appellant that it would be in his advantage to be truthful because the officers did not attach a promise of leniency with the exhortations. ( Jimenez, supra, 21 Cal.3d at p. 611 ["mere advice or exhortation by the police that it would be better for the accused to tell the truth when unaccompanied by either a threat or a promise does not render a subsequent confession involuntary"]; People v. Hill (1967) 66 Cal.2d 536, 549["[w]hen 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"]; In re Anthony J., supra, 107 Cal.App.3d at p. 969 [15 year old defendant's confession held voluntary where officers told defendant that if he told the truth, the officers would tell the court that defendant was cooperative and would play the taped confession to the court " 'to show how cooperative the minor had been' "].)

It is true, as appellant points out, that the officers in this case exaggerated the nature of the eyewitness testimony against appellant. During the interrogation, the officers told appellant that witnesses had identified appellant as walking up to the victim, shooting the victim, running toward a van driven by his brother and leaving in that van. In fact, the two eyewitnesses for the prosecution testified only that the person they saw running after the gunshots shared the same physical build as appellant. "Numerous California decisions confirm that deception does not necessarily invalidate a confession." ( People v. Thompson (1990) 50 Cal.3d 134, 167.) Courts have upheld the admission of a confession where the officer's " 'deception was not of a type reasonably likely to procure an untrue statement.' [Citations.]" ( Ibid., citing In re Walker (1974) 10 Cal.3d 764 [upholding confession where officers deceptively told defendant that he would die before he reached the hospital]; People v. Watkins (1970) 6 Cal.App.3d 119 [upholding confession where officers deceptively told defendant that his fingerprints were found on the getaway car].)

In our view, the deceptions employed by the officers in this case were not of the type reasonably likely to procure an untrue statement from appellant."
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Court refuses to let Dr. Jarvis Wright testify on false confessions

In the case of Munoz v. State (August 2009) the Texas Court of Appeals, El Paso upheld the trial court's decision to reject the testimony of Dr. Jarvis Wright. In their decision they pointed out that "In Point of Error Four, Appellant argues that the trial judge erred in refusing to allow Dr. Jarvis Wright's testimony relating to the field of false confessions. The testimony was intended to rebut the confession and Appellant's admission that he hit Xavier's head on a bedpost.

At the hearing conducted outside the presence of the jury, Dr. Wright testified that the field of false confessions was a relatively new area and an emerging field with which Dr. Wright was familiar by having read recent literature. Dr. Wright explained that psychologists in the field have identified several factors which indicate an increased likelihood that a given confession is false. These factors included the interrogation techniques used, low intelligence, lack of familiarity with law enforcement, and susceptibility to suggestion. Appellant did not intend to ask Dr. Wright to give an opinion as to the truth or falsity of Appellant's confession, but only to testify to a theory that false confessions occur and that the existence of certain factors make it more likely that a specific confession is false. Dr. Wright never interviewed, observed, or tested Appellant, nor had he ever written on, or conducted any testing in the field of false confessions. Dr. Wright's qualification to testify as an expert was that he had read literature on the topic and the basis of his testimony was that he had reviewed Appellant's confession and school records.

Based on our evaluation of the testimony and application of the Kelly factors for reliability of scientific theory, we find that the Appellant did not meet his burden of providing by clear and convincing evidence that Dr. Wright's testimony was reliable and therefore relevant. Dr. Wright's testimony could not have assisted the jury in understanding the evidence or in making a determination of a fact issue. Dr. Wright did not intend to offer an opinion as to the truth or falsity of the Appellant's confession. During cross-examination Appellant admitted the truth of the portions of his confession that he earlier claimed were inaccurate. The trial court's decision to exclude Dr. Wright's testimony regarding false confessions is within the zone of reasonable disagreement. The trial court did not abuse its discretion in excluding it. Point of Error Four is overruled."
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Court rejects claims that there was an unambiguous request for an attorney; that the defendant's mental problems caused him to be more receptive to police coercion; and, that the fact the police lied about the evidence was coercive


In the case of Guerrero v. State (August 2009) the Texas Court of Appeals, San Antonio, upheld the admissibility of the defendant's confession - the defendant claimed he made an unambiguous request for an attorney which the court rejected:

Guerrero argues that he invoked his right to counsel when he "unequivocally told Detective Angell that he might desire the presence of an attorney." When a person is in custody, interrogation must cease if the person invokes one of the rights mentioned in the warnings required by Miranda. Miranda, 384 U.S. at 473-74; Dowthitt v. State, 931 S.W.2d 244, 257 (Tex.Crim.App.1996). In questions of a violation of a defendant's right to counsel, we apply Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Edwards ' bright-line rule provides that once an accused has "expressed his desire to deal with the police only through counsel, [he] is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." Id. The defendant must, however, make "some statement that can reasonably be construed as an expression of a desire for counsel in dealing with custodial interrogation by the police." McNeil v. Wisconsin, 501 U.S. 171, 178, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991) (emphasis removed). More specifically, an accused's invocation of his rights must be unambiguous to trigger this requirement, and officers are under no duty to clarify ambiguous remarks. Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994); Dowthitt, 931 S.W.2d at 257. Questions amounting to whether Guerrero's bond would be different if he was represented by counsel, or whether Det. Angell would take him back to the county jail if he asked for an attorney, are not unambiguous requests for counsel.

The defendant also claimed that Guerrero alleges that his mental problems and later determination of incompetency made him more receptive to police coercion. See Penry v. State, 903 S.W.2d 715, 744 (Tex.Crim.App.1995) (stating that a defendant's mental deficiency alone is not determinative of the voluntariness of the confession, but is only one factor to be considered). Absent evidence of police coercion related to the taking of the confession, a defendant's mental condition alone should not render the statement involuntary on constitutional grounds. See Colorado v. Connelly, 479 U.S. 157, 163-64, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). In considering the impact of a defendant's mental deficiency, "[t]he question is whether the accused's mental impairment is so severe that he is incapable of understanding the meaning and effect of his confession." Cornealius v. State, 870 S.W.2d 169, 175 (Tex.App.-Houston [14th Dist.] 1994), aff'd, 900 S.W.2d 731 (Tex.Crim.App.1995). In this case, there is no evidence in the record or on the video recording demonstrating that Guerrero's mental impairment, if any, was so severe that he was incapable of understanding the meaning and effect of his confession. See Casias v. State, 452 S.W.2d 483, 488 (Tex.Crim.App.1970). To the contrary, Guerrero was lucid and his answers to Det. Angell's questions were appropriate.

Guerrero next argues that Det. Angell intentionally lied to him regarding evidence in an effort to coerce his confession. Neither trickery nor deception "make a statement involuntary unless the method was calculated to produce an untruthful confession or was offensive to due process." Creager, 952 S.W.2d at 856. "Misrepresentations made by the police to a suspect during an interrogation [are] a relevant factor in assessing whether the suspect's confession was voluntary, but it is insufficient to render an otherwise voluntary confession inadmissible." Green v. State, 934 S.W.2d 92, 99 (Tex.Crim.App.1996) (citing Frazier v. Cupp, 394 U.S. 731, 739, 89 S.Ct. 1420, 22 L.Ed.2d 684, (1969)). "[T]he effect of a lie 'must be analyzed in the context of all the circumstances of the interrogation.' " Mason v. State, 116 S.W.3d 248, 257-58 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd) (quoting Miller v. Fenton, 796 F.2d 598, 607 (3d Cir.1986)). We focus on whether Det. Angell's behavior was such as to overbear Guerrero's will and bring about a confession not freely determined. Green, 934 S.W.2d at 99-100. "Of the numerous types of police deception, a misrepresentation relating to an accused's connection to the crime is the least likely to render a confession involuntary." Id. at 100. An officer's misrepresentations that witnesses, fingerprints, and cellular telephone records links appellant to the crime merely relates to appellant's connection to the crime and were not the type of deception that likely causes an involuntary confession. See id.; see also Weaver, 265 S.W.3d at 534 (deciding that officers' misrepresentations, during the accused's interrogation, that (1) witnesses saw him commit the crime, (2) his fingerprints were found, and (3) a videotape showed his involvement in the crime, did not make the accused's statement involuntary). Taken in context, we conclude that Det. Angell's statements were not calculated to lead Guerrero to make an untruthful confession. See Creager, 952 S.W.2d at 856; Martinez v. State, 131 S.W.3d 22, 34 n. 2 (Tex.App.-San Antonio 2003, no pet.)."
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