Legal Updates Summer 2012




"I've given you what I'm gonna give you." "[I] "ain't saying nothing no more"

Do these statements represent unequivocal invocations of the right to remain silent?

In the case State v. Bauldwin (April 2012) the Supreme Court of Nebraska held that the statement "I've given you what I'm gonna give you" was, in fact, a clear invocation of the subject's right to remain silent, and that the police failed to honor this invocation. In their opinion the Nebraska Supreme Court stated,

"Recently, in State v. Rogers, we explained that although a determination of whether an invocation was clear and unequivocal is dependent on the circumstances of each particular case, patterns have emerged from the case law that provide context to our application of these rules. None of these patterns are seen here. Bauldwin's statement that "I've given you what I'm gonna give you" was not prefaced with "words of equivocation such as 'I think,' 'maybe,' or 'I believe." ' Nor can Bauldwin's statement reasonably be interpreted to show only that he had finished his colloquy of events; instead, Bauldwin's statement was made in response to Kozelichki's offer to give his take on what happened that weekend. When viewed in context, Bauldwin's statement showed a desire to stop the interrogation altogether. And Bauldwin's refusal to talk was not limited to a specific topic, qualified by temporal words, or immediately followed by a statement that was inconsistent with a desire to remain silent."



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In the case State v. Cota (March 2012) the Arizona Supreme Court ruled that the "defendant's statement to police officer, in which defendant referred to officer by name and stated that defendant "ain't saying nothing no more" was unambiguous invocation of right to remain silent, and therefore interrogation of defendant should have ceased at such point."

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Unambiguous request for an attorney: "I mean, but can I call one now? That's what I'm saying."

In the case US v Wysinger (June 2012), the US Court of Appeals, Seventh Circuit,
vacted the lower court's decision, finding that the suspect did, in fact, make an unambiguous request for an attorney. From the Court of Appeals opinion:

"Wysinger contends that he first invoked his right to counsel in the opening moments of the interrogation, when he asked "Do I need a lawyer before we start talking?".... Wysinger argues that this question indicated an intention to have a lawyer present at that moment, before the interrogation began. In context, Wysinger asked this question before receiving a Miranda warning. Agent Rehg responded, "Well, we're going to talk about that." He then gave a Miranda warning that we will discuss below and engaged Wysinger in a conversation that meets the definition of interrogation. In this context, a reasonable officer might not understand Wysinger's initial reference to an attorney as an unequivocal request for a lawyer. True, Wysinger's question mentioned the present moment, i.e., "before we start talking." But asking "Do I need a lawyer?" is a substantively different question than "Can I have a lawyer?"

"...That first, ambiguous question by Wysinger came at time index 12:54 in the video. Wysinger's next reference to a lawyer occurred at time index 13:03, after approximately nine minutes of interrogation. At that point, Agent Rehg opened his notebook, pulled out his pen, and asked Wysinger to "tell us what has been going on." Wysinger then made his second reference to counsel, saying, "I mean, do you think I should have a lawyer? At this point?" .... Agent Rehg responded that it was up to him, that if he wanted an attorney, he should get one. Wysinger's second question was virtually identical to his initial, ambiguous inquiry. In and of itself, it does not constitute an unequivocal request for counsel. As is apparent from Agent Rehg's response, he heard Wysinger's question as just that, a question seeking the agent's opinion.

But Wysinger's very next sentence clarified the request and removed all doubt as to his meaning. After Agent Rehg told him, "If you want an attorney, by all means, get one," Wysinger responded, "I mean, but can I call one now? That's what I'm saying .".... That response to Agent Rehg's statement, in context, was an unequivocal request for counsel that no reasonable officer could interpret otherwise.

The interrogation should have immediately ceased at that point."

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What constitutes an implied promise of leniency?

In the case People v. Flores (April 2012) the Court of Appeals, 4th District, CA rejected the defendant's claim that the "Detective Rondou's comments during his interview "were calculated to make [him] believe he would be legally benefitted by explaining his role in the crime to them."

To support his argument, Flores cites the following comments from the interview:

"This is your opportunity to tell the truth ... 'cause if you were with somebody and they did something stupid that you didn't know about, that's on them. Let them deal with that but don't make this about you by lying about it because you're only, not only trying to help yourself, you're trying to help the other person...?"

"If you sit in here and lie about it, if you know that somebody did something wrong like that and you lie about it for them, that's helping them after the fact. That could cause you problems down the road."

"[W]hatever you say in here is what you have to live with down the road. We've had a lot of guys that we talk to them like this and then, you know, things go the way that they go and then they sit there and they, they look at us and say, man, I wish I would have told you when I had the chance. You know, all of a sudden now they're sitting in court."

"This isn't new and I've had countless times, most of the guys tell me, but the guys that didn't, countless times when they've looked over at me in court, [ ]cause we're sitting with them at the table, damn man, I wish I had told you that day, and I look back and say, I told you to tell us that day. [P] ... [P] We gave you every chance and now look at you.... [W]e know you got caught up in some stuff that you weren't planning on doing.... As men, we put it on the table, we deal with it.... It's not the end of the world but you [ sic ] sitting in here lying. All that does is make us think you had a bigger deal in this, whether you were the one that planned this out or you had a bigger role than what you really did...."

"This is your chance to tell your side of the story. If you want to go with what other people told us it's not going to be good for you."

Flores cites these statements as some of the "misleading and manipulative comments" made to him. He argues "[o]ver and over [the] police extolled the benefits of telling them the truth, and stated that it was his last chance, his one and only chance to reap the benefits of telling the truth."

Flores complains the officers' exhortations to tell the truth impliedly suggested Flores would receive legal benefits beyond those that naturally flow from an honest disclosure of the facts. Flores argues the detectives made what amounted to "an implied promise of a better outcome in court." The record does not support Flores's contention.

The officers' statements were permissible exhortations to tell the truth. It was not objectionable to emphasize the dangers of lying to the officers, which if later discovered, would damage Flores's credibility. As the Attorney General notes, the officers did not tell Flores he would receive any legal benefit if he told the truth and admitted his involvement. Statements suggesting a defendant has one chance to cooperate with the police and tell his version of the facts generally are permitted. (See United States v. Gamez (9th Cir.2002) 301 F.3d 1138, 1144 [officer's "comment that it would 'behoove' [defendant] to disclose what he knew about [the victim's] murder and that this was his 'last chance' to come forward does not amount to coercion"].)
The detectives did not mislead Flores about his culpability. They suggested he may have been a victim of circumstances if he did not know his companions intended to shoot Cisneros. The officer explained if Flores did not know another's criminal purpose, blame was "on them" rather than him, but if he knew something and was lying to protect a murderer he could be liable as an accessory. Again, this was a correct, if simplified, statement of the law. Urging Flores truthfully to disclose any knowledge or involvement in the shooting is not coercive unless accompanied by other improper pressures. But the interviewing officers did not threaten, or promise a legal benefit for cooperation other than that which would normally flow from the truth.

The detectives made statements referring to other suspects who regretted lying during interviews after they got to court. But the detective never indicated these defendants would have received more lenient treatment had they cooperated. The officers implied these other individuals unwisely locked themselves into an untruthful version of events and could not later extricate themselves. This did not amount to an implied promise of leniency for cooperation. (Cf. People v. Vasila (1995) 38 Cal.App.4th 865, 874 [officers made express promises that defendant's cooperation would insulate him from federal criminal proceedings and secure his early release]; People v. Esqueda (1993) 17 Cal.App.4th 1450, 1486 [officers told defendant his silence would be interpreted as evidence he had premeditated a murder]; People v. Hinds (1984) 154 Cal.App.3d 222, 238 [officers repeatedly suggested that if defendant confessed to murder, his punishment might be less than the death penalty].) We conclude, based on our independent review of the record ( People v. Holloway (2004) 33 Cal.4th 96, 114), Flores's confession was voluntary and not the product of coercion."

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Hawaiian Constitution does not require recording of custodial interrogations

In the case State v. Eli (April 2012) the Supreme Court of Hawaii re-affirmed their opinion that "the due process clause of the Hawai'i Constitution does not require the recording of custodial interrogations. Id. at 408-09, 886 P.2d at 745-46. This court stated that "whether the failure of the police to create a record of the defendant's confession undermines its accuracy and detracts from the credibility of later testimony is an issue uniquely left to the sound discretion of the trier of fact." Id. at 409, 886 P.2d at 746. In the present case, the court did not find that Detective's failure to record his pre- Miranda conversation with Defendant undermined the accuracy of Defendant's statement or detracted from the credibility of later testimony.

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The importance of discussing the Miranda rights with a juvenile suspect

In the case of Commonwealth v. Wade W., a juvenile (April 2012) the Appeals Court of Massachusetts overturned the lower court's admission of the defendant's incriminating statements because of concern regarding the subject's understanding of the Miranda warnings.
From the court's opinion:
"On November 10, 2008, Saugus police officers were investigating a bomb threat that had been written, in some fashion, in the boys' bathroom at Saugus High School. Two officers spoke with the sixteen year old juvenile, in the presence of his mother and stepfather, at the Saugus police station. The motion judge found "the interrogation was custodial." At the beginning of the interview, one officer, Detective Frederick Forni, read to the juvenile his Miranda rights. Forni read them one after another fairly rapidly, and without stopping between them; at the end of the recitation, he asked if the juvenile understood his rights, and then passed the form to the juvenile's mother and asked her to look at it. Forni did say more than once that both the juvenile and his mother could ask questions if they wished. The juvenile's mother looked briefly at the form and then handed it to her son, who signed it immediately without appearing to read it. Forni then directed the juvenile to a place on the form saying, "[T]his next line just is the waiver; keeping these rights in mind that you still want to talk to us." The juvenile began to write and his mother said, "So he's not waivering his rights?" Forni said, "I'm sorry?" The mother said, "Is that what he's doing? He's not waivering his rights?" Forni responded, "Well, no...." At this point, the second officer, Detective Donovan, spoke over Forni and said, "He's just saying that he'll talk to us." Forni added, "Yeah, that's what we say. If you would, just sign as a witness and then just put mother there."

At the hearing on the motion to suppress, the juvenile's mother testified that she did not understand that she was there to advise her son about his rights, or that he was waiving his right to remain silent, or that "an attorney would have been appointed ... prior to any questioning at [her] request." She also testified that, before she joined her son and his stepfather in the interview room, Detective Donovan had told her that he wanted to speak to her son before she spoke with him or told him anything.

"In reviewing a ruling on a motion to suppress, '[w]e accept the judge's subsidiary findings absent clear error but conduct an independent review of his ultimate findings and conclusions of law.' Commonwealth v. Bostock, 450 Mass. 616, 619 (2008), quoting Commonwealth v. Jiminez, 438 Mass. 213, 218 (2002). '[O]ur duty is to make an independent determination of the correctness of the judge's application of constitutional principles to the facts as found.' Commonwealth v. Bostock, supra at 619." Commonwealth v. Hoyt, 461 Mass. 142, 148 (2011). In addition, as in Hoyt, we have before us in the record the interrogation video recording and the transcript of the interrogation. "We are thus 'in the same position as the motion judge in viewing the videotape.' " Hoyt, supra, quoting from Commonwealth v. Prater, 420 Mass. 569, 578 n. 7 (1995). See Commonwealth v. Novo, 442 Mass. 262, 266 (2004), quoting from Commonwealth v. Bean, 435 Mass. 708, 714 n. 15 (2002) (court "will 'take an independent view' of recorded confessions and make judgments with respect to their contents without deference to the fact finder, who 'is in no better position to evaluate the[ir] content and significance' "). "A juvenile defendant over the age of fourteen may properly waive his constitutional rights if, after having been advised of those rights, he was afforded an opportunity to consult with an interested adult who was informed of and understood those rights " (emphasis supplied). Commonwealth v. McCra, 427 Mass. 564, 567 (1998). Under all of the circumstances here, we are persuaded that the Commonwealth did not meet its burden of proving beyond a reasonable doubt that the juvenile's waiver of his rights was knowing and intelligent, because it is not clear that his mother, the interested adult, in fact understood those rights. To her question whether the juvenile was waiving his rights, Forni's first response was "No." It may be, as the Commonwealth argues, and as the officer himself testified, that Forni intended the answer to be a contradiction of the mother's statement that the juvenile was not waiving his rights; we do not mean to suggest that the officer intended any deception. However, the officer's state of mind is not the issue.

In addition, Detective Donovan's response, "He's just saying that he'll talk to us," undercut, rather than reinforced, the earlier warnings. In order to show a knowing and intelligent waiver under these circumstances, the officers were required either to respond that the juvenile was in fact waiving certain rights and to explain those rights again or, at a minimum, to ask the mother to explain her question so that they could respond appropriately. The mother's question "clearly indicated that [s]he was confused about the legal consequences of making a statement, and [s]he was effectively, though not intentionally, deceived by the officer's response." Commonwealth v. Dustin, 373 Mass. 612, 613 (1977).

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Confession voluntariness - the "totality of circumstances" and the value of recording interrogations

In the case People v. Thomas (March 2012) the Supreme Court, Appellate Division, Third Dept., New York, examined a number of issues that can affect the voluntariness of a suspect's confession, including the length of the interrogation and the tactics employed by the interrogators (including misrepresenting evidence), as well as the lower court's denial of expert testimony from a social psychologist on the issue of false confessions.
From the court's opinion: Initially, defendant argues that his oral and written statements to police should have been suppressed on the grounds that they were involuntarily obtained and the product of coercive custodial interrogation methods, which included false promises, misrepresentations and threats. After a hearing, County Court denied defendant's suppression motion finding that the statements had been voluntarily made in a noncustodial setting in which police did not employ impermissible coercive tactics.

"Mason's [the interrogator] nonthreatening, non-hostile strategy focused on gaining defendant's trust and assuring him that he believed that whatever had caused Matthew's injuries had been accidental; Mason encouraged defendant to disclose the truth about what had occurred in order to assist the doctors in saving Matthew's life, although Mason had been advised at that point that Matthew would not survive.

Defendant then admitted in increasing detail having thrown the child in frustration onto the bed forcefully, three times, in the four days preceding the 911 call, after he had arguments with Hicks over his lack of a job; defendant demonstrated how he had done so using Mason's briefcase binder, which he ultimately raised above his shoulders and slammed to the ground with considerable force. After a break during which he was left alone, defendant confirmed that this account of repeatedly throwing the infant on the bed was accurate; four pages were added to the second statement summarizing these admissions, and he reviewed it by himself and signed it.

.....The circumstances and atmosphere of the interviews fail to demonstrate involuntariness. While the interviews were lengthy, two hours and seven hours, a factor on which defendant places great emphasis, they were separated by a 15-hour break in questioning during which defendant had a bed and food and ample opportunities to rest, sleep, make phone calls, eat, contemplate and consult help.

Also contrary to defendant's vehement claims, the strategies and tactics employed by the officers during these interviews were not of the character as to induce a false confession and were not so deceptive that they were fundamentally unfair and deprived him of due process ( see id. at 11, 427 N.Y.S.2d 944, 405 N.E.2d 188). The officers' repeated misrepresentation that defendant's truthfulness might enable doctors to effectively treat Matthew did not render his statements involuntary, because appealing to his parental concerns did not create a substantial risk that he might falsely incriminate himself ( see id. at 11, 427 N.Y.S.2d 944, 405 N.E.2d 188; People v. Dishaw, 30 A.D.3d at 690-691, 816 N.Y.S.2d 235; People v. Henderson, 4 A.D.3d 616, 617, 772 N.Y.S.2d 120 [2004], lv. denied 2 N.Y.3d 800, 781 N.Y.S.2d 299, 814 N.E.2d 471 [2004] ). Indeed, common sense dictates the opposite conclusion, i.e., that parents, aware of their child's life threatening predicament, would accurately disclose any information that might enable doctors to save their child.
Likewise, Mason's persistent assurances, including that he believed that it had been an accident and that defendant would not be arrested or go to jail at that time (based upon information then available to police that did not yet connect defendant to this crime), were not improper promises of leniency that would induce a false confession ( see People v. Lyons, 4 A.D.3d 549, 552, 771 N.Y.S.2d 585 [2004]; People v. Richardson, 202 A.D.2d 958, 958-959, 609 N.Y.S.2d 981 [1994], lv. denied 83 N.Y.2d 914, 614 N.Y.S.2d 396, 637 N.E.2d 287 [1994] ). Indeed, defendant had been advised that any admission to criminal conduct could be used against him in court; when defendant asked if he would be criminally prosecuted, Mason told him that he did not know and no promises could be made, but it would not happen "right now," which was true as he had not yet confessed.

Next, we find no error in County Court's ruling, after a Frye hearing, denying defendant's request to permit expert testimony from a social psychologist on police interrogation tactics and false confessions. "The admissibility and bounds of expert testimony are addressed primarily to the sound discretion of the trial court, ... [which] in the first instance [must] determine when jurors are able to draw conclusions from the evidence based on their day-to-day experience, their common observation and their knowledge, and when they would be benefited by the specialized knowledge of an expert witness"

......The court determined that current research fails to establish either a consensus connecting specific interrogation techniques to the occurrence of false confessions or a reliable basis for distinguishing false confessions from truthful ones. We agree with the court that the jury--having watched the videotaped interviews and defendant's trial testimony explaining why he had confessed falsely, as well as the defense's vigorous cross-examination of the interviewing officers, which fully exposed the tactics employed--was "perfectly capable of assessing whether it believes that the [d]efendant's statements were true and accurate, or whether they were falsely made as a result of police tactics and coercion." Indeed, the court noted that the jury would be charged on voluntariness and the factors to evaluate in determining whether the confession was the result of undue pressure or improper conduct ( see CJI2d[NY] Confessions; CPL 60.45, 710.70[3]), and the court in fact provided an expanded charge on this matter. Given the foregoing, we discern no abuse of discretion or error in the court's ruling.

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'If you work with me, we can make these [charges] go away.' Does this statement constitute a promise of leniency?

In the case State v. Jenkins (April 2012) the Court of Appeals of Kansas found that once the totality of circumstances were reviewed, as documented by the video taped recording of the interrogation, the statement made by the interrogator, "If you work with me, we can make these [charges] go away." was not a promise of leniency. From their opinion:

"On appeal, Jenkins contends that he made incriminating statements only after "Detective Schnabel told Mr. Jenkins that, 'If you work with me, we can make these [charges] go away.' " Jenkins contends that these words extended a promise to make all potential charges go away if Jenkins cooperated, and that a confession obtained through false promises should be deemed involuntary and excluded from evidence...... But a careful review of the record shows that Jenkins substantially exaggerates what took place: in context, the officer made no promise to make sure that Jenkins wouldn't face criminal charges if he cooperated with police."

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Failure to call a false confession expert does not constitute ineffective counsel

In the case Kirschke v. Prelesnik (May 2012) the U.S. District Court, E.D. Michigan rejected the defendant's claim "that his counsel should have hired an expert witness on false confessions. Petitioner has offered nothing other than speculation that an expert witness could have been obtained to provide such testimony on the issue of false confessions or that such a witness would testify favorably on his behalf. To present an ineffective assistance of counsel claim based on a failure to call a witness, a defendant must make an affirmative showing as to what the missing evidence would have been and prove that the witness' testimony would have produced a different result. Malcum v. Burt, 276 Supp.2d 664, 679 (E.D.Mich.2003) (internal citation omitted). Petitioner has failed to demonstrate that he was denied the effective assistance of counsel from his trial counsel's failure to use or call an expert witness concerning the issue of false confessions, because he has failed to present any testimony to establish that an expert witness could have been obtained to testify favorably for him on this issue."

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The value of video recording in determining the ability of a suspect with a low IQ to make a knowing and intelligent waiver

In the case People v. Walker (June 2012) the Appellate Court of Illinois, First District, the trial court had reviewed the videotaped interrogation of the defendant twice to determine whether or not he made a knowing and intelligent waiver of his rights. From the Appellate Court's opinion:
"Although Walker's overall score of 80 on the IQ test is between the "mentally defective range" and "low-average range" of functioning, there is no indication he did not understand his Miranda rights. Also, his previous experience with the criminal justice system indicates a familiarity with his rights and negates his claim that his limited mental capacity rendered his statement involuntary. In fact, the record shows that Walker willingly and actively took part in his defense throughout the proceedings.

The trial court also viewed Walker's videotaped statement twice and found that the statement was voluntarily, knowingly, and intelligently made. We find that Walker's statement was voluntary and the trial court properly denied his motion to suppress."

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Telling the suspect that the victim had accused him of a more serious crime is not a coercive tactic - even though the victim had not made such an assertion

In the case People v. Jaeger (June 2012) the Supreme Court, Appellate Division, Third Dept., New York, the court found that they were not "persuaded by defendant's contention that his statements were the product of coercive and deceptive interrogation practices by the police. "Police may generally engage in deception while investigating a crime, with suppression required only where 'the deception was so fundamentally unfair as to deny due process or [where] a promise or threat was made that could induce a false confession' "......On more than one occasion during the interview, Stack suggested to defendant that victim A accused him of having intercourse with her despite the victim neither stating nor implying that any intercourse had occurred. However, as the tactic employed by Stack was not accompanied by any threats or promises that might induce a false confession and was not fundamentally unfair, the deception did not render defendant's confessions involuntary."

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Court considers criteria to determine if a 15-year old student was in custody when questioned by the police at school

In the case Marquita M., a Minor v. State (June 2012) the Appellate Court of Illinois, Fourth District, considered the issue of whether a 15-year old student was in custody when she was questioned by the police at school. Fron the Appellate Court's opinion:
Our supreme court has noted the circumstances establishing police custody are not always self-evident..... However, "the Court in Miranda was concerned with interrogations that take place in a police-dominated environment containing 'inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely.'...... "In looking at the circumstances of interrogation, courts look at several factors to determine whether a statement was made in a custodial setting, including:

"(1) the location, time, length, mood, and mode of the questioning;

(2) the number of police officers present during the interrogation;

(3) the presence or absence of family and friends of the individual;

(4) any indicia of formal arrest procedure, such as the show of weapons or force, physical restraint, booking or fingerprinting; (5) the manner by which the individual arrived at the place of questioning; and (6) the age, intelligence, and mental makeup of the accused."

In this case, the evidence indicates respondent was not in custody for Miranda purposes when she made the statements at issue. Respondent was 15 years old at the time. See J.D.B. v. North Carolina, 564 U.S. ----, ----, 131 S.Ct. 2394, 2406, 180 L.Ed.2d 310 (2011) (noting a child's age, when known or objectively apparent to a reasonable officer, is a relevant consideration in the Miranda custody analysis). Dinkheller and Officer Hermsmeier came to respondent's classroom during her second-hour class and walked her back to Dinkheller's office. She was not taken to or questioned at the police station. See People v. Giacomo, 239 Ill.App.3d 247, 255, 180 Ill.Dec. 435, 607 N.E.2d 329, 334 (1993) (finding 15-year-old's statements were voluntary when made, not at the police station, but at school, "a nonthreatening atmosphere"); People v. Savory, 105 Ill.App.3d 1023, 1029, 61 Ill.Dec. 737, 435 N.E.2d 226, 230 (1982) (noting a room adjacent to the principal's office was a less coercive environment than the police station). Moreover, nothing indicates Hermsmeier handcuffed or physically restrained respondent. Only one law-enforcement officer was present in Dinkheller's office, and nothing indicates Hermsmeier displayed a weapon or exhibited a show of force. Also, no formal booking procedure or search of respondent's person took place before the questioning.

Based on the circumstances, a reasonable person in respondent's situation would not have felt she was in police custody during the questioning that took place in Dinkheller's office. Thus, no Miranda warnings were necessary."

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Defendant's confession to two "inmates" who were undercover detectives held admissible
In the case People v. Robles (April 2012) the Court of Appeal, Second District, California, upheld the admissibility of the defendant's incriminating statements that he made to two "inmates" who were actually undercover detectives. From the Appeal's court opinion:
"Appellant moved to suppress evidence of his July 16, 2009 jail cell conversation with the two detectives posing as inmates. He maintained that admission of his statements at trial would violate his constitutional rights against self-incrimination and to counsel during police questioning. The prosecutor responded that appellant was not entitled to be advised of his rights in this setting, because (1) appellant was unaware that he was in a cell with officers so there was no coercive police interrogation, and (2) he was not charged with a crime at the time he made his admissions of guilt. The court denied appellant's motion to suppress.

A criminal suspect who makes incriminating statements is not entitled to Miranda warnings "when the suspect is unaware that he is speaking to a law enforcement officer and gives a voluntary statement." ( Illinois v. Perkins (1990) 496 U.S. 292, 294 ( Perkins ).) In Perkins, an undercover officer posing as an inmate was placed in the same cellblock as the defendant, who was suspected of murder. The officer proposed that he and Perkins escape from jail. While refining the escape plan, Perkins described at length the murder he committed, after the officer asked Perkins whether he had ever "done" anybody. The officer did not give Miranda warnings before having the incriminating conversation with Perkins. ( Perkins, at pp. 294-295.)

Contrary to appellant's contention, the police subterfuge did not create an unreliable result that rendered his trial fundamentally unfair. The circumstances in this case were not coercive. Appellant spoke openly to his "fellow inmates," with only slight encouragement from them. No threats were uttered during the exchange. Appellant's will was not overborne by the deception."

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Court finds that Dr. Richard Leo's proposed testimony potentially confusing and misleading


In the case State v. Rafay (June 2012) the Court of Appeals of Washington, Division 1 upheld the trial court's opinion to exclude the testimony of Dr. Richard Leo on the issue of false confessions. From the Court of Appeals opinion:

"counsel.... informed the court that Leo would testify generally about the psychology of police interrogations, the phenomenon of false confessions, and "the erroneous but commonly held belief that people of normal mental capacity do not make untruthful and [inculpatory] statements." Counsel asserted that Leo would not opine on whether the confessions were false but would state that "if the confession in this case is false, he'll characterize it in one of the four groups that he's laid out from his research."

"In sum, Leo was unable to testify about any meaningful correlation between specific interrogation methods and false confessions or provide any method for the trier of fact to analyze the effect of the general concepts on the reliability of the defendants' confessions. Given the defendants' alleged basis for their false confessions, such limitations rendered Leo's proposed testimony potentially confusing and misleading."

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Can the police lie to a suspect by telling him that they are not recording the interrogation when they actually are?

In the case Evans v. Phelps (April 2012) the U.S. District Court, D. Delaware, upheld the court's decision to admit the suspect's confession even though the police had lied to the suspect when they denied that they were recording the interrogation. From the District Court's opinion:
"In his second sub-argument, Petitioner contends that his due process rights were violated by the admission of the confession, because Lieutenant Jamison's untruthful remark that the interrogation was not being videotaped amounted to police coercion and rendered Petitioner's confession involuntary.

Petitioner presented both sub-arguments to the Delaware Supreme Court on direct appeal. The Delaware Supreme Court denied Petitioner relief, holding that:

[I]t is clear from the videotape of [Petitioner] with Lieutenant Jamison that [Petitioner] was advised of his Miranda rights, and that [Petitioner] waived those rights knowingly, intelligently and voluntarily. Moreover, we agree with the Superior Court that [Petitioner's] inquiry of Lieutenant Jamison mid-interview as to whether the interrogation was being videotaped was not, as [Petitioner] argues, an invocation of his Miranda rights.

Here, Petitioner asked Lieutenant Jamison "Is this being recorded?" (D.I. 49, Evans v. State, No. 471, 2007, Appellant's App. # 1 at 27) Lieutenant Jamison responded, "No. I will get you to write whatever you confess to." Id. Nothing in this exchange indicates an unambiguous request on Petitioner's part for counsel or an unambiguous invocation of his right to remain silent. Therefore, the Court concludes that the Delaware Supreme Court's denial of Petitioner's first sub-argument was based on a reasonable determination of facts, and was neither contrary to, nor an unreasonable application of, clearly established Federal law.

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Impermissible promise of leniency

In the case State v. Polk (April 2012) the Supreme Court of Iowa concluded that "the district court erred in denying Polk's motion to suppress his confession..... Polk's confession followed an impermissible promise of leniency..." From the Supreme Court's opinion:

"After three minutes of questioning, Polk said, "I ain't got nothing to say. Can I go back to my pod?" Monroe immediately baited Polk by saying he could go back if Polk "didn't want to know what happens from here on out." Polk took the bait, asking, "What happens?" and remained in the interview room. Monroe then began to insinuate that cooperation could affect punishment. Monroe told Polk that "what happens from here can be influenced by what we talk about." Monroe elaborated, "Let me just lay it out for you like this okay, it has been my experience working cases like this, that if somebody cooperates with us, on down the road the county attorney is more likely to work with them." For the next several minutes, Monroe reinforced the message that Polk would benefit by cooperating. For example, Monroe stated county attorneys "are much more likely to work with an individual that is cooperating with police than somebody who sits here and says I didn't do it."
Polk indicated a second time he wanted to end the questioning. Monroe told him he was free to go and "the door is right there if that is what you want to do." Polk walked out of the room and down the hall toward the elevator. Monroe then baited Polk again, stating, "Hey Anthony, I do want to tell you I got paperwork down here charging you with possession of a firearm and going armed with intent." Polk took the bait a second time, asking, "How did I get charged with a firearm?" He returned to the room for more questioning. After Monroe and Polk agreed to resume the interview, Monroe played on the fact Polk had children:

I'm telling you, you need to start thinking about what you are going to do for yourself because I know you got a couple of kids out there and I'd hate to see the kids miss their daddy for a long time because you didn't want to talk about what's going on

Monroe continued: "Man if you don't want to do this for you, do this for your kids. They need their dad around. [35-second pause] Just don't forget you got kids that are depending on you. They need their pops around." The court of appeals observed, "It is clear from this statement that the officer meant to communicate that if Polk confessed, he would spend less time away from his children." We agree. The strategy worked--Polk promptly confessed to taking a firearm to the scene with the intent to shoot Henley and firing shots at Henley there.
Monroe's interrogation strategy goes beyond the permissible tactics approved in Whitsel. Monroe did not simply offer to inform the county attorney of Polk's cooperation. Instead, he suggested the county attorney is more likely to work with him if he cooperates and implicitly threatened Polk that silence will keep him from his children for "a long time." Monroe's statements are similar to the officer's statement in Hodges that "there was a much better chance of ... receiving a lesser offense" if the defendant confessed. See Hodges, 326 N.W.2d at 349 (emphasis omitted). In each case, the officer suggested the defendant's confessions would likely reduce the punishment.

We conclude Monroe crossed the line by combining statements that county attorneys "are much more likely to work with an individual that is cooperating" with suggestions Polk would not see his kids "for a long time" unless he confessed. Other courts have cried foul when interrogators imply a confession will reduce the suspect's time away from his or her children:

The relationship between parent and child embodies a primordial and fundamental value of our society. When law enforcement officers deliberately prey upon the maternal instinct and inculcate fear in a mother that she will not see her child in order to elicit "cooperation," they exert ... "improper influence...."

United States v. Tingle, 658 F.2d 1332, 1336 (9th Cir.1981); see also Lynumn v. Illinois, 372 U.S. 528, 534, 83 S.Ct. 917, 920, 9 L.Ed.2d 922, 926 (1963) (finding confession involuntary when police told defendant, absent a confession, state financial aid for defendant's child would be cut off); United States v. Groves, 470 F.3d 311, 322 (7th Cir.2006) ("Any level of threats or coercion related to [defendant's] child would weigh against a finding of voluntariness."). But see United States v. Lee, 618 F.3d 667, 677 (7th Cir.2010) (finding officer statement that defendant "had a lot at stake" and that he had three young children to think about did not, by itself, make the confession involuntary). We hold Polk's confession was rendered inadmissible by Monroe's promise of leniency."

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Confession voluntariness: factors to consider

In the case Blunt v. Clark (March 2012) the U.S. District Court, N.D.. California, upheld the Court of Appeal's decision to reject the Petitioner's claim that his confession was coerced. From the District Court's opinion:
"To determine the voluntariness of a confession, the court must consider the effect that the totality of the circumstances had upon the will of the defendant. Schneckloth v. Bustamonte, 412 U.S. 218, 226-27, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). "The test is whether, considering the totality of the circumstances, the government obtained the statement by physical or psychological coercion or by improper inducement so that the suspect's will was overborne." United States v. Leon Guerrero, 847 F.2d 1363, 1366 (9th Cir.1988) (citing Haynes v. Washington, 373 U.S. 503, 513-14, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963)); see, e.g., Ortiz v. Uribe, No. 09-55264 slip op. 20219, 20234 (9th Cir. Nov. 18, 2011) (reminding suspect of his obligation to tell the truth and that his children were counting on him to do the right thing were permissible psychological appeals to his conscience, even if they possibly made him more emotional during the interview); Cunningham v. Perez, 345 F.3d 802, 810-11 (9th Cir.2003) (officer did not undermine plaintiff's free will where interrogation lasted for eight hours and officer did not refuse to give break for food and water); Clark v. Murphy, 331 F.3d 1062, 1073 (9th Cir.2003) (interrogation was non-coercive where suspect was interrogated over a 5-hour period in a 6 by 8 foot room without water or toilet, but never requested water or use of toilet); Ashcraft v. State of Tenn., 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192 (1944) (if defendant had confessed after being taken into custody by police officers and interrogated for 36 hours following a seizure, during which period he was held incommunicado, without sleep or rest, relays of officers, experienced investigators, and highly trained lawyers questioned him without respite, that confession would have been involuntary).

While Petitioner was questioned for over fifteen hours, the Court of Appeal found little evidence that fatigue was a factor in Petitioner's later statements:

Defendant was given several extended breaks, lessening the impact of the long duration. Although defendant stated at the outset of the first taped interview that he was tired, he never repeated that complaint during the recorded sessions. On the tapes, he speaks quietly, but, as the trial court noted, his voice is alert and responsive. Throughout the four recorded sessions, he answered questions promptly, spoke fairly quickly, and gave narrative, not monosyllabic, answers, without showing signs of fatigue. When defendant fell asleep after the third recorded interview, the officers allowed him to nap.

Defendant was also given food and water during the interrogation. We agree with the trial court that there is no reason to believe, as defendant implies, that he was not given bathroom breaks. The officers permitted repeated breaks during which defendant could have been escorted to the bathroom. Had he been deprived of bathroom opportunities, one would expect him to have commented on that fact during the interviews.

Second, at the time of arrest, Petitioner was twenty years old, about a month away from his next birthday. The suspect's age may be taken into account in determining whether a confession was voluntary....... However, in the instant case, Petitioner was not a juvenile at the time of his arrest, and he does not adequately show, beyond merely stating how old he was at the time, how his age rendered his confession involuntary.

Third, the Court of Appeal reasonably determined that Petitioner "was not wholly isolated, despite being held in a small room." ..... Petitioner was permitted to leave the interrogation room to speak on the phone with his mother. Id. Following that break, Petitioner requested the next discussion be led by Sergeant Longmire, an officer Petitioner met when he was on the phone. Id. at 9. Thus, while Petitioner spent long periods of time in Room 202, he was not held incommunicado or in isolation.

Lastly, the Court of Appeal concluded there was no misconduct in the officers' behavior:

The officers were persistent, continuing to question defendant for an extended period of time, they were not insistent. This was not a situation in which the officers refused to accept a defendant's denials and badgered him or her until a confession emerged. Rather, defendant's story evolved as the night progressed, suggesting both that he had not given a full and accurate account and that he would reveal more of the truth under further questioning. The officers were therefore justified in persisting in questioning defendant until a fixed story emerged, and they did so without browbeating or otherwise attempting to intimidate him.

The officers' questioning reflected a need to ascertain the truth about the events of that night, especially given that Plaintiff's account changed and expanded over the course of the interviews. The record does not reflect, and Petitioner does not claim, that the officers threatened him, tricked him, or tortured him. Upon invoking his right to silence, Sergeant Brock ended the interview by stating, "the fact that [Petitioner doesn't] want us to talk to [us] anymore ... [means] we're gonna have to stop."

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Improper interrogator statements - promises and threats

In the case Commonwealth v. Baye (May 2012) the Supreme Court of Massachusetts found that the defendant's incriminating statements should have been suppressed as a result of the statements made to him by the investigators. From their opinion:
"Here, before making any inculpatory statements, the defendant unambiguously expressed his desire to speak to a lawyer.... Understanding that the defendant would consult an attorney if he thought that the troopers would "accuse or charge [him]," the troopers told him that they would not do so. Knowing also that they had warned the defendant at the outset, consistent with Miranda, that anything he said to them could be used against him, the troopers undermined their prior admonition by agreeing that his statements would not be used as the basis of an accusation or a charge.

...... For this reason, assurances that a suspect's statements will not be used to prosecute him will often be "sufficiently coercive to render the suspect's subsequent admissions involuntary" even when the suspect shows no outward signs of fear, distress or mental incapacity.....

The troopers' reaction to the defendant's invocation of his Fifth Amendment rights is of particular concern here because the defendant's request occurred after he had been read his Miranda rights. We have "encouraged police to give Miranda warnings prior to the point at which an encounter becomes custodial," ...... and we do not decide in this case whether the provision of such warnings binds interrogators to honor scrupulously a suspect's invocation of his or her Miranda rights outside the context of a custodial interrogation. However, where the police provide precustodial warnings but then ignore the defendant's attempts to avail himself of those rights, the "coercive effect of continued interrogation [is] greatly increased because the suspect [could] believe that the police 'promises' to provide the suspect's constitutional rights were untrustworthy, and that the police would continue to" ignore subsequent invocations, rendering such invocations futile."

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