Legal Updates Spring 2018

Court finds Dr. Richard Leo’s testimony of false confessions to be unreliable

In US v. Begay (February 2018) the US District Court, D. New Mexico, ruled that Dr. Richard Leo “may not testify regarding false confessions, because the United States Court of Appeals for the Tenth Circuit has indicated that such testimony is unreliable.” From the District Court’s opinion:

The defendant was questioned about sexually abusing a minor. The defendant “admitted to or implied that he had engaged in sexual acts with the alleged victim.” The defendant claims that his incriminating statements were not made voluntarily, and offered Dr. Richard Leo as an expert witness.

The Court concluded that Dr. Leo could testify about police interrogation tactics generally, but not regarding the application of such tactics to this case.

The Court also concluded that Dr. Leo may not offer opinion testimony regarding false confessions, because the Tenth Circuit has indicated that such testimony is unreliable. The Tenth Circuit has noted that the “Supreme Court has held that Rule 702 imposes a special obligation upon a trial judge to ensure that all expert testimony, even non-scientific and experience-based expert testimony, is both relevant and reliable.”

The Court also excluded Dr. Leo’s false confessions testimony as applied to Begay for the separate reason that it does not meet the Daubert standard, specifically the error rate of identifying a false confession.

Click here for the complete decision.

Court rejects the testimony of Dr. Joseph Drumm on false confession issues

In Mosby v. State (February 2018) the Court of Appeals of Arkansas upheld the lower court’s decision to exclude the testimony of Dr. Joseph Drumm regarding false confession issues. From the Court of Appeals opinion:

The defendant was convicted of two counts of first-degree murder, and appealed his conviction, in part, on the basis that the lower court erred in not allowing the testimony of Dr. Joseph Drumm at the suppression hearing.

Mosby argues that expert testimony on the effects of sleep deprivation and the existence of any mental or emotional disorder would have assisted the circuit court in determining whether his confession was freely and voluntarily given and that the court's refusal to consider Drumm's testimony was a “gross abuse of discretion.”

In his argument, Mosby states that the purpose of Drumm's testimony “was to assist the jury in determining whether Appellant's videotaped statement given to the police on June 11, 2015, was a true statement.” However, he also asserts that Drumm “was not going to be asked to give his opinion on whether [Mosby] was lying or being truthful in his differing statements. He was only being called to testify on the voluntariness of his statements to the police.”

During the trial, defense counsel again sought to introduce Drumm as a witness: “We are offering Dr. Drumm's testimony regarding the defendant's psychological characteristics that would make him prone to giving in to interrogation against his free and voluntary will and his tendency to make a false confession under such circumstances.” In his proffered testimony, Drumm explained that he had performed a psychiatric evaluation of Mosby in July 2016 and that Mosby was diagnosed with posttraumatic stress disorder, generalized anxiety disorder, agoraphobia, and major depressive disorder. Drumm opined that the murders of Reeves and Madden had caused Mosby's stress disorder and that experiencing that type of stressor could “absolutely” affect his ability to give a voluntary statement. Defense counsel reiterated to the court that it was offering Drumm's testimony “to assist the fact-finder in reaching a decision on the facts involving voluntariness of a confession.”

And the Court's of the opinion that the issues pertaining to—that were raised in the motion to suppress, as well as during the testimony during the trial phase of this trial, are issues that the jury is competent to address and draw their own conclusions. And the testimony in this particular case is unlikely to be able to assist this jury, and the Court's opinion is it invades the province of this jury to make decisions pertaining to the issues that have arisen or will arise during the course of this trial.

And for that reason, the Court finds that the expert testimony is inadmissible.

Click here for the complete decision.

Statements that suggest that judges or prosecutors may be more lenient on a defendant who they perceive as being honest and who “took responsibility” for his actions, do not promise any sort of leniency or guarantee any special treatment

In People v. Perez-Rodriguez (June 2017) the Colorado Court of Appeals, Div. V., upheld the lower court’s decision to find the defendant’s incriminating statements voluntary. The defendant was found guilty of two counts of aggravated incest and sexual assault on a child. The defendant appealed, claiming, in part, that his confession was coerced. From the Court of Appeals opinion:

During the interrogation, the detective told defendant several times that he did not believe defendant. The detective also told defendant “people are going to watch this interview, to include like judges and district attorneys, and they are going to have to make a decision based on whether you are being truthful or not. If you're truthful sometimes these folks have some sort of level of compassion. But when people lie it's very bad for you.”

The detective made similar remarks several times during the interview before defendant admitted to the intercourse.

During the interrogation, the detective never made a specific threat or promise. At times he suggested that judges or prosecutors may be more lenient on a defendant who they perceive as being honest and who “took responsibility” for his actions. These statements, however, do not promise any sort of leniency or guarantee any special treatment.

Here, the alleged promises were merely conjectures that prosecutors or judges may show leniency, and that the detective was giving defendant an opportunity to take responsibility for his actions…. As for the detective's statements that he did not believe defendant, we do not perceive such statements as threatening or coercive.

Based on the totality of the circumstances, we conclude that defendant's admission was voluntary and that the trial court did not err in admitting it into evidence.

Click here for the complete decision.

The value of recording the interrogation to refute the defendant’s claims

In State v. Gray (December 2017) the Court of Appeal of Louisiana, Fifth Circuit, upheld the lower court’s finding that the defendant’s confession was voluntary. From the Court of Appeal’s decision:

Defendant, Brandon Gray, appeals his convictions and sentences for five counts of armed robbery and one count of aggravated flight from an officer. Defendant also testified at the suppression hearing. According to defendant, when he woke up after having surgery in the hospital, Detective Macaluso was asking him questions while intentionally grabbing and hurting his leg in an attempt to get defendant to confess to “something [he] had no idea about.” Defendant indicated that he was not questioned further by Detective Macaluso at the hospital but was later brought to the detective bureau. He testified that he was in severe pain, was heavily medicated, was disoriented, and was in no condition to “give a voluntary and knowing admission of anything.” During his testimony, defendant claimed that he did not remember being transported to the detective bureau, giving the interview, or signing the waiver of rights form.

After taking the matter under advisement and reviewing the video-taped confession, the trial court denied defendant's motion to suppress statement. In so ruling, the trial court noted that defendant, at no time, appeared incoherent; rather, he was “lucid, talkative,” and “expressive,” and was able to give detailed information in response to the detective's questions. Further, the trial court noted that it did not see “evidence of any fragmented thought processes or incoherent answers,” nor any indication that defendant did not comprehend the questions or was somehow impaired by any medication that may have been administered to him at the hospital.

The trial court's decision to accept Detective Macaluso's testimony about the circumstances surrounding defendant's interview is clearly supported by the record. In particular, the video-taped confession shows that defendant was advised of his rights prior to making his statement, that defendant initialed next to each right on the rights of arrestee form indicating he understood his rights, and that he signed the form signifying that he read his rights and wished to waive them. Further, as noted by the trial court, defendant was lucid and gave coherent and detailed answers to the detective's questions. Moreover, there is no indication that defendant was sleeping during the interview or affected by any type of medication. Accordingly, we find no merit to defendant's arguments that his statement was not freely and voluntarily given due to Detective Macaluso's coercion and the medications given at the hospital.

Click here for the complete decision.

Failure to consider and present expert testimony on the issue of false confessions was not indicative of ineffective counsel

In Barros v. State (April 2018) the Rhode Island Supreme Court ruled that failure to consider and present expert testimony on false confession issues, and failure to question perspective jurors as to whether they believed that someone could give a false confession, were not indicative of ineffective counsel. From the Supreme Court’s opinion:

Subsequent to the April 27, 2015 hearing, the justice issued a decision denying Mr. Barros's application for postconviction relief. In that decision, he answered the following question in the negative: “whether trial counsel's omission to advance such expert testimony—when its admissibility was (and still is), at best, questionable—amounted to a constitutionally deficient misstep.” (Emphasis in original.) He specifically stated that, taking into account that he had been the trial justice, he would not have allowed the admission of an expert on false confessions; and he pointed out that Mr. Barros was “not hindered from explaining and challenging the reliability of his statements” and in fact had done so “through other witnesses on direct and cross-examination, but also through his own testimony.” It was further the justice's holding that “such an expert's testimony ineluctably trespasses upon the jury's quintessential function of determining the trustworthiness and reliability of the evidence.” Finally, he concluded that “it [could] scarcely be said that trial counsel provided defective representation by not trying to wedge into the jury's deliberations expert advice on how to evaluate Barros' confession.”

…. the only two questions properly before this Court in the instant action as it relates to expert testimony on false confessions are: (1) whether or not Mr. Barros's trial counsel was ineffective for failing to utilize an expert witness on false confessions; and (2) whether or not the justice erred in refusing funds to hire such an expert in this postconviction relief action. In order to answer those questions, we need not pass upon whether or not the testimony of an expert witness on false confessions would have been admissible in Mr. Barros's criminal trial. In our opinion, it is clear from the record in this case and from the silence of our jurisprudence concerning this issue that failure to call such an expert witness on false confessions in Mr. Barros's criminal trial was not an error which rendered trial counsel ineffective.

Mr. Barros's postconviction relief counsel himself conceded, in his August 27, 2014 “Memorandum in Support of Petitioner's Motion for Recusal and Third Amended Petit[io]n for Post–Conviction Relief,” that “the value and relevancy of false confession experts is an area untested in Rhode Island jurisprudence,” and he further conceded that “[c]ourts around the country are divided on the value of such evidence.” Even on appeal, Mr. Barros's counsel refers to the “growing acceptance of the false confession expert testimony nationally.” It is also important to bear in mind that this Court has never ruled on the admissibility vel non of such expert testimony.

In view of these circumstances, it would strain rationality to rule that an attorney was constitutionally ineffective for not introducing expert testimony on false confessions. Certainly under an objective standard of reasonableness, trial counsel need not have produced expert testimony that this state has never held to be admissible—and when courts around the country are divided as to its admissibility.

Click here for the complete decision.

The value of recording to refute the defendant’s claims of coercion

In US v. Redmond (April 2018) the US District Court, D. Nevada denied the defendant’s motion to suppress his incriminating statements. From the court’s opinion:

Defendant filed a motion to suppress the statements he made to detectives…. Redmond argues that he did not voluntarily, knowingly, and intelligently waive his right to remain silent because (1) he “had taken Xanax and an unknown pain killer about an hour before he was arrested and gave this statement,” (2) he was “feeling dizzy, and light headed because of the officers repeated punching him and pushing his head into the ground during his arrest,” and (3) “the detectives coerced Redmond into a confession by threats of maximum prison time.”

The Court finds that Defendant was not intoxicated during the interrogation to a degree that would affect his ability to waive his Miranda rights. Detectives Beveridge and Condratovich testified credibly that Defendant was lucid throughout the interrogation and was able to answer questions in a linear manner. This matches the Court's impression of the interrogation's audio recording. Defendant acted consistently during the interrogation with how he acted during the April 10, 2018 hearing.

The Court finds that, taken as a whole, the interrogation was not unduly coercive. The Detectives' accurate statements about the punishment Defendant could face and the potential benefits of telling the truth to help the investigation were proper.

Taking the combined effects of Defendant's allegations into account, the Court finds that Defendant waived his rights voluntarily, knowingly and intelligently. In addition to the circumstances discussed above, the Court is persuaded by Defendant's statements near the end of the interrogation. Defendant admitted that he had lied throughout the interrogation “[t]rying to cover up for myself” because “I don't know what all you got.” Defendant's attempt to game the system and force the Detectives to show their evidence before he would admit to anything is incompatible with Defendant being intoxicated, threatened, and coerced. Therefore, there are no grounds to suppress Defendant's October 7, 2016 statements.

Click here for the complete decision.

Court confirms acceptability of minimizing the moral seriousness of the offense

In US v. Wilder (April 2018) the US District Court, D. Maryland, denied the defendant’s motion to suppress his incriminating statements. From the court’s opinion:

These charges stem from allegations that Wilder used an improvised incendiary bomb to start a small fire on the balcony of a second floor garden-style apartment on April 15, 2017. While in police custody, law enforcement officers interrogated Wilder about the fire and obtained a confession. Wilder now moves to suppress his incriminating statements, alleging that the officers intentionally minimized the severity of the punishment he now faces, thereby coercing an involuntary confession in violation of his Fifth Amendment rights set forth in Miranda v. Arizona, 384 U.S. 436 (1996). For the reasons that follow, Defendant’s Motion to Suppress … is denied.

[Investigator] Olin testified that while he knew he was investigating felony charges, he did not inform Wilder of the gravity of the charges…. Olin repeatedly emphasized that he was investigating a “small” fire. Atack also occasionally participated in the interview and suggested that the fire was small, only damaging some bicycles. Both officers acknowledged that during the interview, each minimized the seriousness of Wilder’s alleged conduct in an attempt to obtain information from him. For example. Olin stated that “the fire was very small . . . . So, from that standpoint, you know, it’s a good thing. For whoever did it. . . . I like keeping this very simple, and on the down-low.”

Wilder claims that by minimizing the offense and potential consequences, the officers coerced his Miranda waiver and confession through the use of deception making both involuntary.

Here, the officers made no such effort to affirmatively deceive Wilder. Indeed, there is no testimony on the record as to any information that had been provided to Wilder prior to his Miranda waiver other than that he was clearly under arrest and was being interviewed by a fire and explosives investigator. Wilder was never advised, nor did the officers suggest, that he was not in any trouble. Although, during the interview, the officers couched Wilder’s alleged involvement in the fire as a “mistake” and frequently referred to the incident as a small fire that burned some bicycles, the officers made clear that they thought Wilder was responsible. Additionally, during the interview, Wilder was under no allusion that he was not the subject of the officers’ investigation into the April 15th fire. At the outset of the interview, Olin indicated that he was speaking with Wilder regarding a fire at his significant others’ residence and that “it’s come to [Olin’s] attention that you’ve had some issues . .. with your significant other.” Certainly based on the tone of the interview, it is more than plausible that Wilder did not realize he would later be facing the potential consequences he now faces, and it is likely that the officers’ tactic of minimization was effective in eliciting his incriminating responses.

Although Wilder claims that his confession was based on an assumption that he would receive a minor charge, it was only an assumption—the officers’ did not promise him leniency in exchange for his information or make any affirmative misstatements regarding his criminal liability…. While the officers’ minimization of the consequences of the April 15th fire may have put Wilder at ease, he made a conscious decision to waive his Miranda rights and provide incriminating statements. And even though the severity of the charges Wilder now faces exceeds that which he might have expected for admitting to a “mistake.” this fact alone is insufficient to show that Wilder’s will was overborne and his capacity for self-determination critically impaired by coercive deception by the officers. There is no indication that Wilder was affirmatively deceived prior to waiving his Miranda rights, and prior to making inculpatory statements, he clearly knew he was being interrogated about a fire he was suspected of starting. Therefore, the Court finds that Wilder made a knowing, intelligent, and voluntary waiver of his rights after being provided with a Miranda warning and his confession was voluntarily given.

Click here for the complete decision.

Special Miranda warnings for juveniles in New York, as well as a special room for questioning

IN RE LUIS P., a Person alleged to be a Juvenile Delinquent, Appellant, (April 2018) the Supreme Court, First Department, New York held that the incriminating statements made by a 13 year old boy engaging in sexual activities with a 9 year old boy were voluntary and admissible. Two items of note from the courts opinion:

“Once in the interrogation room, Detective Barrenger recited the simplified Miranda warnings to both appellant and Lizbeth that the NYPD specifically uses for juveniles.” These simplified warnings are as follows:

  1. You have the right to remain silent and refuse to answer any questions. That means you don't have to say anything to me.
  1. Anything you say may be used against you in a court of law. That means I can tell the court what you say or write to prove what you may have done.
  1. You have the right to consult an attorney before speaking to the police (or the prosecutor) and to have an attorney present during any questioning now or in the future. That means that you can talk to a lawyer before I ask you any questions and your lawyer can be with you when I ask you any questions.
  2. If you cannot afford an attorney, one will be provided for you without cost. That means that if you want a lawyer but do not have the money to pay for one, a lawyer will be given to you for free.
  1. If you do not have an attorney available, you have the right to remain silent until you have had an opportunity to consult with one. That means if you want a lawyer and a lawyer is not available right now, you do not have to speak with me until you have had the chance to speak to a lawyer.
  1. Now that I’ve advised you of your rights, are you willing to answer questions.

This case also references that fact that when in a police station juveniles should be questioned in a “designated juvenile room”:

“….. in New York, when a child is questioned at the precinct, the officer should take the child to a designated juvenile interview room, consisting of a clean, well-lit room that is separate from areas accessible to the general public and adult detainees, and which is in an office-like rather than jail-like setting that minimizes public exposure and mingling with detainees (Family Ct. Act § 305.2[4][b]see Uniform Rules for Trial Cts. [22 NYCRR] § 205.20). Appellant was questioned in the SVU's designated juvenile room that comported with the Family Court Act.

Click here for the complete decision.