Legal Updates - Summer 2008
Courts limit or reject the testimony of expert witnesses Richard Leo, Richard Ofshe, Saul Kassin, Mark Castanza, Susan Garvey, Deborah Davis and Rosalyn Shultz on false confession issues
In the past several months numerous courts have considered and then rejected the testimony of various false confession experts. Here is a sampling:
State v. Wright, Missouri Court of Appeals, March, 2008.
In this case the Court of Appeals upheld the trial court's decision to exclude the testimony of forensic psychologist Dr. Rosalyn Shultz who sought to testify about factors which lead people to make false confessions "and the would have opined that Appellant possessed certain of those characteristics which tend to be present in people who make false confessions." The Appeals court stated that such testimony would "Invade the province of the jury." Click here for the complete opinion.
People v. Cerda, Court of Appeal, Fourth District, Division 2, California May, 2008.
The Court of Appeal upheld the trial court's decision to deny the request from the defendant for an expert (Dr. Richard Leo) in false confessions. The Court stated "a request for services that would be merely convenient to the defense rather than reasonably necessary need not be granted. Click here for the complete opinion.
People v. Rosario, Queens County Supreme Court, March, 2008.
In this case the court considered the defense request to offer Dr. Richard Ofshe as an expert witness on false confessions. The court concluded, "Dr. Ofshe's testimony did not contain 'sufficient evidence to confirm that the principles upon which the expert based his conclusions are generally accepted by social scientists and psychologists working in the field. Therefore, his anticipated testimony that psychological coercion was employed during the interrogation of defendant, Argelis Rosario, which in his opinion would induce a person to falsely confess, does not meet the Frye standard for admissibility." Click here for the complete opinion."
State v. Law, Court of Appeals of Washington, June, 2008.
The Court of Appeals upheld the trial court's decision to exclude Dr. Richard Leo's testimony after the defendant testified that he never made incriminating statements. "The trial court concluded that this was not a false confession case, noting that during his testimony, Law "very much made it clear that he never made those statements.... [H]e never stated that he made those statements, but because he was threatened or forced or coerced, those statements are not true.... He simply denied the conduct."" Click here for the complete opinion.
People v. Steele, Court of Appeals, Second District, Division 8, California, June, 2008.
The Court of Appeal upheld the trial court's decision to exclude the testimony of Dr. Richard Leo, stating, "The defense offered the testimony of Dr. Richard Leo who would have testified on what psychological factors "might lead a defendant to make a false statement." Dr. Leo would have testified on police tactics that lead to inaccurate and unreliable statements. But Dr. Leo would not have offered an opinion on whether appellant's statements were false confessions. ...The trial court properly excluded Dr. Leo's testimony. The issue, as appellant framed it, was whether his statements were voluntary. Dr. Leo would not have testified on this issue." Click here for the complete opinion.
Bell, Petitioner v. Ercole, et al. US District Court, E. D. New York, June, 2008.
The US District Court stated in their opinion that "Justice Cooperman denied the defense's request to admit expert testimony (Saul Kassin), concluding that the jury could determine the voluntariness of Bell's statements based on the facts presented and that expert testimony on false confessions does not pass the Frye test of general acceptance in its field. People v. Bell, Ind. No. 128/97, slip op. at 3-4 (N.Y.Sup.Ct. Apr. 28, 1999). This decision is consistent with a long line of New York cases, of which the most recent, People v. Wiggins, 16 Misc.3d 1136 (N.Y.Sup.Ct.2007), contains a particularly thoughtful discussion of the issue." Click here for the complete opinion.
People v. Martinez, Court of Appeal, Second District, Division 6, California, March, 2008.
In this case the Court of Appeal upheld the trial court's decision to exclude the testimony of Mark Castanza on why people make false confessions. "'Expert opinion is not admissible if it consists of inferences and conclusions which can be drawn as easily and intelligently by the trier of fact as by the witness.'... A trial court may exclude the testimony of a false confessions expert where the defendant's testimony about why he falsely confessed is easily understood by jurors." Click here for the complete opinion.
State v. Wooden, Court of Appeals of Ohio, Ninth District, July, 2008.
The Court of Appeals upheld the trial court's decision to exclude the testimony of Dr. Richard Leo, stating that, "Of particular significance to the Daubert analysis here, Dr. Leo has not formulated a specific theory or methodology about false confessions that could be tested, subjected to peer review, or permit an error rate to be determined. Dr. Leo's research on false confessions has consisted of analyzing false confessions, after they have been determined to be false...... Given the evidence before the trial court that Dr. Leo's expert testimony did not include a reliable scientific theory or anything outside the understanding of the jury that would assist it in assessing the reliability of Wooden's confession, the trial court did not abuse its discretion in refusing to admit Dr. Leo's testimony." Click here for the complete opinion.
Fox,II, Appellee-Plaintiff v Indiana, Court of Appeals of Indiana, February, 2008.
At trial the defense counsel was permitted to question Dr. Ofshe generally about coerced confessions, but not to ask questions about this particular case. Fox contends the trial court erred in so limiting the scope of his expert witness's testimony. The Court of Appeals stated "The jury was also permitted to view a videotape of Fox's entire interrogation. Therefore, the jurors were fully able to apply the concepts about which Dr. Ofshe testified to the interrogation that produced Fox's confession. This is all Dr. Ofshe's permissible testimony could have accomplished. There was no reversible error here." Click here for the complete opinion.
Downs v. Virginia, Court of Appeals of Virginia, May, 2006.
In this case the defendant appealed saying that "the trial court erred in refusing to allow Dr. Susan Garvey to testify regarding Downs' "suggestibility and a psychological diagnosis." Earlier in the trial the defense had called Dr. Solomon Fulero, a nationally recognized expert in the area of false confessions, as an expert witness. Dr. Fulero testified about factors and circumstances that can lead to a false confession and described the personality characteristics of a person likely to confess to a crime they did not commit. The court only allowed Dr. Fulero to testify generally about false confessions and did not allow Dr. Fulero to testify about Downs specifically because he had never examined her." The following day the defense sought to have Dr. Garvey testify as a second expert. Dr. Garvey is a psychologist who had examined Downs prior to trial in order to determine whether she was competent to stand trial. Although Dr. Garvey had never previously qualified as an expert on false confessions, her report concluded that Downs had "personality characteristics ... consistent with the type of individual who would be prone to making a false confession." Based on her prior examination of Downs, Dr. Garvey intended to testify about two of the "false confession factors" identified by Dr. Fulero, specifically, "suggestibility and a psychological diagnosis." The trial court held that the jury did not need "expertise" to assist them in assessing whether Downs had the type of personality that Dr. Fulero described as being susceptible to giving a false confession. The Court of Appeals agreed. Click here for the complete opinion.
US v. Benally United States Court of Appeals, Tenth Circuit Sept. 9, 2008
In this case the defendant notified the government he planned to call Dr. Deborah Davis, a professor of psychology at the University of Nevada at Reno, as an expert witness on false confessions. Mr. Benally offered her as "an expert in the field of social psychology" and "the subjects of confession, interrogation techniques ... [,] and the ability of those techniques to cause people to confess." Mr. Benally offered Dr. Davis's testimony on two subjects: (1) whether false confessions occur; and (2) why people confess falsely. Dr. Davis had never examined Mr. Benally, and would not offer an opinion as to whether he confessed falsely.
After a Daubert hearing, the district court ruled that Dr. Davis's testimony was inadmissible, concluding that it did not meet the standards for relevance or reliability required by Daubert. Click here for the complete opinion.
Zhao v. City of New York, et al., Defendants United States District Court, S.D. New York.
Aug. 20, 2008.
This court also rejected the proposed testimony of Dr. Deborah Davis. Click here for the complete opinion.
Dr. Christian Meissner testifies on false confession issues - Jury finds defendant guilty
Dodson v. State, Court of Appeals of Texas, March, 2008.
In this case the the jury convicted Kira Lynn Dodson of capital murder, and the trial judge assessed a mandatory life sentence. In two issues, appellant contends the evidence is legally and factually insufficient to support the conviction. We affirm. It is interesting to note that at trial, "Dr. Christian Meissner, an assistant professor of psychology and criminal justice, testified on appellant's behalf as an expert on false confessions. According to Meissner, interrogation techniques that lead to gaining a true confession from a guilty person may also lead to receiving a false confession from an innocent person. Generally, the interrogation process contains three phases: isolating the suspect in a room and building rapport phase, confrontation phase, and minimizing the suspect's perception of the consequences phase. There are several factors that may determine whether an individual gives a false confession, including the suspect's age, the length of time the suspect is interrogated, and whether interrogation takes place in the middle of the day as opposed to the middle of the night. Meissner also testified his career has been as an academic, he had no experience in conducting law enforcement investigations, and he could not tell the jury whether appellant's confession was true or false." Click here for the complete opinion.
Police misrepresent evidence against suspect - Court upholds confession - two cases
Weaver v. State, Court of Appeals Texas, June, 2008.
In this case the police falsely told the defendant during his interrogation that 1) witnesses saw him commit the crime, (2) his fingerprints were found, and (3) a videotape showed his involvement in the crime. "Finally, appellant argues that one of the officers made false promises. After inquiring as to appellant's age, the officer told appellant he had his whole life ahead of him, even though the officer knew appellant was charged with capital murder. Additionally, when discussing appellant's drug use, the officer stated, "You know what if this just happened when you, you know you might had been doing something you didn't realize what you were doing, that's fine! There's nothing wrong with that...." Appellant appears to contend that, by making this statement, the officer was falsely promising that appellant would not face legal consequences if he committed the crime while under the influence of an illegal substance"
"In viewing the totality of appellant's interrogation, we determine that the trial court did not err in concluding that appellant's confession was voluntary. Appellant's inquiries as to what charges were being brought against him did go unanswered, but, as the trial court found, the officers specifically told appellant that they were investigating a capital murder. Officers' misrepresentations that witnesses, fingerprints, and video linked appellant to the crime merely related to his connection to the crime and were not the type of deception that likely causes an involuntary confession. Similarly, any promises made that appellant "had his whole life ahead of him" or relating to appellant's drug use during the crime were not of such an influential nature that would cause appellant to speak." Click here for the complete opinion.
Brown v. State, Court of Appeals of Mississippi, June, 2008
"During the interrogation, Detective Zacharias lied by telling Thomas that the police had conducted a black light test of the house where Thomas was living. Detective Zacharias lied further by telling Thomas that this test uncovered traces of Thomas's semen throughout the house. After these misrepresentations, both detectives testified that Thomas recanted his previous denial and admitted to fondling Jill between twelve to fifteen times. Looking at the totality of the circumstances, we cannot say that the trial court's ruling that Thomas's confession was voluntary, despite Detective Zacharias's misrepresentation, is against the overwhelming weight of the evidence." Click here for the complete opinion.
Employer found guilty by jury of false imprisonment
Robles, Plaintiff v. Autozone, Inc., Court of Appeals, Fourth District, Division 1, California, July, 2008
In the first trial in this action, Robles obtained a jury verdict in his favor for compensatory damages for false imprisonment. That jury found AutoZone's employee, Octavio Jara (Jara), acting within the course and scope of his employment, had falsely imprisoned Robles in the course of an internal company loss prevention investigation, and it awarded Robles $73,150. However, the trial court granted a nonsuit on the request for punitive damages, and Robles appealed.
Here are the salient facts:
"On July 6, 2000, Robles arrived for work and was told by the store manager ... that he should go to the back room because loss prevention officer Jara and the district manager ... wanted to talk to him. Robles did so and Jara told him there was an issue they needed to talk about, i.e., that the bank had called stating that they received an empty bag with only a deposit slip, and the slip had Robles's signature on it. Jara asked Robles several times if he knew what had happened, and Robles said no. At some point, [the district manager] left the room. Jara then told him, "we know who did it," and accused Robles of stealing the money. Robles denied this for the remaining part of the first portion of the loss prevention interview, which lasted two hours and seven minutes. Jara told Robles they would need a statement, and Robles filled out a form denying that he had taken the money."
*3 After a 10-minute break in the interview, the following events occurred. Jara asked Robles if he knew that Jara was a police officer (a reserve officer for the City of Chula Vista) and Jara told him that he could get any information about anybody. Jara told Robles he had had a former employee, Julio Martinez, arrested by the police for theft. According to Robles's testimony at the first trial, Jara then said, "All I have to do is give a phone call, and the police will be at the front of the store to pick you up, and they'll take you to jail because what you've done is a felony, and you will serve time." Jara said that if Robles left, he would be arrested. Robles was afraid to leave.
According to Robles, Jara then told him that they could keep the matter within the company if Robles confessed and agreed to pay the money back in monthly installments while keeping his job: "Robles then sat down and wrote what Jara dictated to him in the next page of the statement, confessing to taking the money and signing a promissory note to pay back the money." The interview had lasted over three hours. "Robles was then suspended for a few days, fired, and his last paycheck withheld. He was unable to obtain unemployment insurance, due to being fired, but got a new and better job three or four weeks later. His lost wages amounted to $2,000 or less."
It was soon discovered that the money in the deposit bag, approximately $800 AutoZone cash, (which was the focus of the interrogation) had been found at the bank a few weeks later, without a deposit slip or account number, and the store manager and Jara were told at that time about telephone calls from the bank stating this, but no further action was taken by AutoZone about Robles with regard to this money.
In 2001, Robles filed a complaint for damages for false imprisonment and other theories against AutoZone and some of its employees. At the first jury trial, extensive evidence was presented about the incident and about AutoZone's procedures and policies for loss prevention, including training of loss prevention managers, such as Jara, in the use of the company interviewing manual, entitled "Investigative Interviewing, An Investigator's Guide To Interviewing" (the manual). The manual sets forth methods and interview techniques for loss prevention managers to use in interviewing employees accused of theft. Click here for the complete opinion.
Does the length of the interrogation impact on the admissibility of the confession?
State v. Wells, Court of Appeals of Wisconsin, April, 2008 (Confession upheld)
In this case the Defendant was questioned for 24 hours over a 77 hour time period in which he was in custody. The trial court upheld the admissibility of the confession. The Court of Appeals agreed:
"He was interviewed for twenty-four of the seventy-seven hours in which he was in custody during that time. While those are both significant amounts of time, "the length of interrogation and custody, while certainly relevant to the discussion of voluntariness, simply is not dispositive in and of itself." State v. Turner, 136 Wis.2d 333, 364, 401 N.W.2d 827 (1987). We must look to how those twenty-four hours of interrogation were executed. The four interviews were non-consecutive and were separated by breaks of four, twelve, and forty hours. During these breaks, Wells was free to eat regular meals and sleep in a private cell. Additionally, Wells was allowed to make requests for smaller breaks and creature comforts during the interview sessions. When requested, he was given sandwiches, sodas, water, and allowed time for bathroom breaks, some of which were "rather lengthy." The length and physical conditions of Wells' interviews were not sufficient to show coercive tactics by police." Click here for the complete opinion.
State v. Segarra, Court of Appeals of Wisconsin, December, 2007 (Confession upheld)
"The circuit court found that Segarra had been interrogated for a total of about twenty-eight hours. The circuit court found that the police had advised Segarra of his Miranda rights appropriately and repeatedly during the time they had interviewed him. The circuit court also found that Segarra had "waived those rights, agreed to give a statement, was cooperative with the police in terms of giving statements, never asked for a lawyer, and never asserted his right to silence." The circuit court also found that the police had offered Segarra "creature comforts from water, to food, to cigarettes," and that he had been given time between the interviews to rest and "gather his thoughts."
The circuit court found that none of the police officers had acted in a coercive manner, and that there was no evidence that any of the officers had attempted to bring undue pressure on Segarra during the interviews. The circuit court considered the circumstances of the interviews including, among other things, the location, who initiated the contact, and Segarra's age, physical condition, and prior experience with the police. The circuit court concluded that Segarra's statements were voluntary and denied the motion to suppress." The Court of Appeals agreed. Click here for the complete opinion.
Interrogator statements - what can and cannot be said
Hill v. Virginia, Court of Appeals of Virginia, July 2008 (Confession upheld)
In this case the defendant claimed that he confessed because the interrogator threatened to prosecute his sister for possession of the cocaine unless he claimed ownership. The Court of Appeals upheld the trial court's decision that the confession was voluntary. The Appeals court stated, in part, "Here, appellant's sister was already validly arrested pursuant to probable cause. The question is whether a promise to forgo a valid prosecution against a lawfully charged party is coercive. We find that appellant's desire to extricate his sister from a valid arrest does not in itself render his confession involuntary." Click here for the complete opinion.
Gomez v. State, Court of Appeals of Texas, Amarillo, July, 2008 (Confession upheld)
In this case the "Appellant contends that Muniz [the interrogator] made comments regarding appellant's son that were meant to induce appellant to confess. Specifically, appellant contends that Muniz stated that it would be better for appellant to cooperate, that appellant needed to consider whether she wanted the chance to be with her son someday, and that she needed to take advantage of the opportunity that the police were giving her to tell the truth." At one pot Muniz said "And all of that, what happened, unfortunately already happened ... I'm just telling you what it is ... and that you accept responsibility, and if you really love your child, the way you love him ... and maybe you want a future with your son ... here is the opportunity." The Court of Appeals concluded that "Muniz did not induce or attempt to induce appellant into providing a confession in exchange for any promised benefit." Click here for the complete opinion.
Briones v. State, Court of Appeals of Texas, Houston, June, 2008 (Confession upheld)
In this case the Appellant claimed he confessed because the interrogator promised to help him, and that he (appellant) thought the interrogator would help him go free. The interrogator did make the following statements to the defendant: ""I'm going to help you to get out of here, I'm going to help you with the detective.... [W]ith the truth, everything will come out right.... [A]t one point in your life, you need to trust someone.... I'm giving you my word as a man.... You need to speak with me and tell me everything, and we'll solve all of this." A short time thereafter, Colunga added: "I will call the detective, call her here. You and I will talk to her and we'll explain to her why.... You have a disease.... But we need to help you." The Court of Appeals found that "These generalized statements of help and comment on the power of truth, however, do not constitute the kind of "if-then ... deal, bargain, agreement, exchange, or contingency" that is of such a nature to cause a suspect to speak untruthfully." Click here for the complete opinion.
Harris v. State, District Court of Appeals of Florida, Fourth District, April, 2008 (Confession upheld)
In this case "Harris claims that his admissions were obtained through police trickery, and the detectives "delude[d]" him by minimizing the dangers of admitting to the assault and robbery and threatening to prosecute for first-degree premeditated murder on the basis of statements allegedly made by other defendants." The Court of Appeals found that "the detectives did not make promises or threats that coerced Harris into confessing. Rather, they made general statements, such as, that a witness had identified Harris and that Harris faced significant jail time. They did not offer a quid pro quo bargain for a confession. See Philmore v. State, 820 So.2d 919, 928 (Fla.2002) (finding that statements suggesting leniency in interview are objectionable only if they amount to express quid pro quo deal). Nor did the detectives indicate that murder resulting from a robbery is any less serious than intentional murder. They only inquired as to whether the boy had planned a robbery, as opposed to having grabbed the victim off the bike to intentionally beat him to death." Click here for the complete opinion.
State v. Brown, Supreme Court of Kansas, May, 2008 (Confession suppressed)
The Kansas Supreme Court upheld the Court of Appeals decision to suppress the defendant's confession based on a violation of his constitutional privilege against self-incrimination. The Court of Appeals had found that "in the present case that "[w]hen a parent is essentially compelled to choose between confessing guilt in abusing his or her own child or losing his or her parental rights, the choice is between two fundamental rights under the Constitution." 37 Kan.App.2d at 731-32, 157 P.3d 655. In other words, Brown would suffer a substantial penalty, the loss of the fundamental liberty interest in the care, custody, and control of his children if he elected not to incriminate himself, thereby violating the terms of the case plan." Click here for the complete opinion.
US v. Beaver, US District Court, E.D. Oklahoma, June, 2008 (Confession suppressed)
In this case "... the main thrust of Defendant's argument is that he was induced to confess by the interrogating agents' promises of leniency." The court concluded that "The Defendant clearly formulated the reasonable belief that the agents were promising him a reduction in the number of counts charged and a lighter sentence if he confessed to fondling the girls. Of particular importance is the Defendant's insistence that Agent Frank's shake his hand. It is clear that Defendant thought a deal had been struck and wanted this handshake to memorialize the deal, a deal that he described as being the agents' agreement to drop all but two counts contained within the indictment. As a result of these circumstances, the Court is convinced the Defendant believed he had been promised lenience." Click here for the complete opinion.
State v. Jackson, Missouri Court of Appeals, Southern District, February, 2008 (Confession upheld)
In this case the "Defendant argues that the false statement made to him about the reason why he was being taken from the jail by Holder is evidence of coercion." The Defendant was told that he was being transferred to another jail because of a speeding ticket. In fact the true reason was to separate Defendant from Hudson without the latter discovering the real reason why police were questioning Defendant." The Appeals Court upheld the admissibility of the Defendant's confession. Click here for the complete opinion.
People v. Duchine, Court of Appeal, First District, Division 4, California, May, 2008 (Confession upheld)
In this case the defendant claims that his police station confession should have been excluded from evidence because he did not expressly waive his Miranda rights. The Court found that the "Defendant's videotaped police interrogation shows that he was fully advised of his Miranda rights, and said he understood those rights. The police never asked defendant to waive his rights; the interrogating officer started questioning defendant after advising defendant of his rights without obtaining an express waiver. However, it is clear from the circumstances that defendant knowingly and voluntarily waived his rights." The Court stated, "[A]n explicit statement of waiver is not invariably necessary to support a finding that the defendant waived the right to remain silent or the right to counsel guaranteed by the Miranda case." Click here for the complete opinion.
United States v. Freeman, U.S. Court of Appeals for the Armed Services, February, 2008 (Confession upheld)
In this case the Defendant claimed that his will was overborne by a number of factors, including the interrogators' use of the following lies, threats, and promises. "Over the course of the interview, SA Bogle suggested to the accused that everyone makes mistakes and the best thing to do is admit it and get it behind you. He promised the accused that if he cooperated, they could tell his commander about it and it might help. On the other hand, he told the accused, if you don't tell the truth, the case will go downtown and with a civilian victim you could get five years in jail. When the accused denied being out that night, SA Bogle lied to him and told him a witness saw him out. He also told the accused that his fingerprints were found at the scene." The Court found that "Viewing all the facts taken together, we agree with the Court of Criminal Appeals that they were not "so inherently coercive as to overcome the appellant's will to resist." Click here for the complete opinion.
US v. Zavala United States District Court, E.D. Pennsylvania Sept. 2, 2008 - Confession upheld
In this case the court stated that, although it is possible to find involuntariness based on psychological coercion, "it is generally recognized that the police may use some psychological tactics in eliciting a statement from a suspect." The question to be answered when such tactics are used is whether they 'were so manipulative or coercive that they deprived [the suspect] of his ability to make an unconstrained, autonomous decision to confess.' However, an investigator may "play on the suspect's sympathies or explain that honesty might be the best policy for a criminal who hopes for leniency from the state."
The statements that the interrogator made that he had some "serious problems" and needed to do the right thing and help himself out by talking to them, and that he was facing "serious time," (Tr. 5/12/08 13, 20),-fall within the permissible bounds of psychological persuasion. These statements, informing petitioner of the possible repercussions of conviction, were not "so manipulative and coercive that they deprived [petitioner] of his ability to make an unconstrained, autonomous decision to confess." The Court concluded that the defendant was properly Mirandized and was not coerced into giving a confession in violation of his Fifth Amendment rights. Click here for the complete opinion.
People v. Sanabria Supreme Court, Appellate Division, Second Department, New York - Confession upheld
June 17, 2008.
In this case the Supreme Court, Appellate Division, Second Department, New York found that the statement by interrogating officers that Child Protective Services would have to remove defendant's son from her house unless they could determine exactly what happened to her infant daughter was not untrue or so fundamentally unfair as to deny defendant due process or raise danger that she would falsely confess, and thus did not render defendant's confession involuntary, where defendant was in custody for grievously abusing her daughter, and Child Protective Services already had obtained from Family Court order of protection directing defendant to stay away from her home and her children. Click here for the complete opinion.
US v. Bruce, US Distirct Court, Wisconsin July, 2007 - Confession upheld
In this case "Bruce confounds unpalatable choices with coercion. He is not entitled to suppression simply because Detective Rietzler accurately observed to him that his "ass is in a pickle." As Detective Rietzler herself told Bruce during his interrogation, her job was to flip drug dealers in order to catch the bigger fish. None of her words or acts during her attempt to flip Bruce was improper, howsoever frightening and unwelcome Bruce might have found them. As noted at the outset, Bruce claims that "he was simply doing his best to say what the detectives wanted to hear to try to save himself and his family." Reply, dkt. 47, at 10. This is only partly right: he was trying to save himself, not his family, and his efforts were undertaken with free will and with careful, self-interested calculation. However much Bruce wished he didn't have to make a choice between snitching and two decades in prison, his decision (on which he subsequently reneged) was not legally involuntary." This case is also an excellent example in which the recording of the interrogation was critical to the court's ability to assess the intent of the interrogator's statements. Click here for the complete opinion.
US v. Gorman US District Court, N. D. Oklahoma September 9, 2008 - Confession upheld
"Gorman claims that he would not have made any statements if police had not threatened to take his child into state custody and he did not voluntarily waive his Miranda rights. He asserts that police threatened to contact the Oklahoma Department of Human Services ("DHS") and take his child into custody if he did not talk to police. Based on his testimony, it appears that the alleged threat was not made directly to defendant but, instead, by a female officer talking to Carreiro in the front yard. He claims that the female officer made "ignorant" and "rude" comments to Carreiro and Gorman's child and told the child that everyone at the home would be "sleeping next to strangers" that night. The female officer, Sokoloski, testified at the suppression hearing. She admitted that she made statements to Carreiro about taking the child into state custody because of the condition of the home, such as the lack of any light source in the child's room, and the existence of dangerous contraband and a weapon within reach of the child. She also testified that she spoke to defendant after he had received a Miranda warning and asked him about the poor condition of the home. She described her tone as firm, but she felt it was necessary to say something. Both Sokoloski and Leatherman testified that police have the authority to take a young child into protective custody, and this was not an empty threat.
"Based on Sokoloski's and Leatherman's testimony, police could take defendant's child into protective custody if they feared for the safety and well-being of the child, and these were not idle threats. Police found a loaded firearm within reach of a child and marijuana in an unlocked box on the floor. Combined with other unsafe conditions in the home, such as the lack of any light source in the child's room, police had a legitimate reason to be concerned about the child's safety. Police may not threaten to remove a person from a loved one for the purpose of coercing a confession. See United States v. Tingle, 658 F.2d 1332, 1336-37 (9th Cir.1981). However, police may make truthful statements that impact a child or loved one without rendering a defendant's statement involuntary. United States v. Jones, 32 F.3d 1512, 1517 (11th Cir.1994) (statement by police that the defendant's girlfriend would also be considered a suspect if the defendant refused to cooperate was truthful and not a ground to suppress the defendant's statements as involuntary). The mere fact that Sokoloski made statements about placing defendant's child in DHS custody does not require suppression of defendant's statements claiming ownership of the firearm and marijuana." Click here for the complete opinion.
Mental impairment and IQ re the waiver of Miranda rights
Bevel v. State, Supreme Court of Florida, March, 2008 (Confession upheld)
Did the subject make a knowing and intelligent waiver of the Miranda rights? The Defendant had a "low full-scale IQ of 65, which placed him in the range of mild mental retardation." "In the instant case, two expert opinions were introduced indicating that Bevel's full-scale IQ falls somewhere between 65 and 75, within the mild range of mental retardation. However, Bevel's IQ is but one factor to be considered in determining the voluntariness of his confession. Despite his low IQ, the totality of the circumstances, based upon the testimony presented at the hearing as well as a review of the videotaped confessions, indicates that Bevel knowingly and voluntarily waived his Miranda rights." Click here for the complete opinion.
People v. Slater, Supreme Court of Illinois, March, 2008 - Confession upheld
Following a bench trial in the circuit court of Will County, defendant, Pamela Slater, was convicted of one count of permitting the sexual abuse of a child and was sentenced to four years' incarceration. The appellate court reversed defendant's conviction and remanded the cause for a new trial." We granted the State's petition for leave to appeal (210 Ill.2d R. 315), and, for the reasons that follow, we reverse the judgment of the appellate court."
The court-appointed psychologist, Dr. Randi Zoot, found defendant to be "alert, oriented to person, place date and situation, and cooperative," and that she had a verbal IQ of 81, a performance IQ of 70, and a full-scale IQ of 74. Although defendant's "overall I.Q. places her in the borderline range of intellectual functioning and her verbal abilities are low average," Dr. Zoot concluded that defendant did "not suffer from a mental disorder that interferes with her ability to understand the court proceedings, the role of the court participants or from cooperating with her attorney in her defense." The parties stipulated that Dr. Zoot found defendant fit to stand trial.
"We first consider defendant's age, intelligence, background, experience, mental capacity, education, and physical condition at the time of questioning. As discussed earlier in this opinion, the evidence is uncontroverted that defendant's intellectual limitations were not outwardly apparent to the detectives and did not interfere with her ability to communicate with them. This is confirmed by our own review of defendant's subsequent videotaped statement, wherein she speaks fluently with the officers in a conversational manner, engages-and often leads-the officers in conversation, freely offers details, and is very open and cooperative. There are no outward indications from our viewing of this recorded statement that defendant has a disability."
"For the foregoing reasons, the judgment of the appellate court is reversed, and the judgment of the circuit court of Will County is affirmed." Click here for the complete opinion.
People v. Hernandez, Court of Appeal, Fourth District, California, June, 2008 (Confession upheld)
In this case Francisco Gomez, a forensic clinical psychologist called by the defense, testified that the Defendant was mildly retarded with an IQ of between 60 and 70, which is the bottom one to two percent of intelligence. He also testified that he watched the part of the videotape interview where defendant was given his Miranda rights. In his opinion defendant's "cognitive ability" prevented him from "be[ing] able to process that information that rapidly and know ... what he was waiving."
The Court of Appeal found that "there is no evidence the police knew of defendant's mental condition. Borkowski testified she had no such information. And defendant acknowledges the officers' testimony that he understood them and had no difficulty speaking to them; he did not stutter nor did he seem confused. "The record does not convince us that the interrogating officers were aware of, or exploited, defendant's claimed psychological vulnerabilities in order to obtain statements from him."
"Further, the California Supreme Court "has noted that 'the Fifth Amendment is not "concerned with moral and psychological pressures to confess emanating from sources other than official coercion."
"Defendant's cases relying on police exploitation of low intelligence are also factually inapt. (E.g., People v. Neal (2003) 31 Cal.4th 63, 82, 84 [in addition to low I.Q., the defendant denied opportunity to speak with lawyer and was "confined incommunicado"].) That was not the case here." Click here for the complete opinion.
In the case of Jackson v. Mckee, No. 07-1247 (6th Cir. 2008) the court found that the defendant, who required special education classes and could only read at a third grade level, could still give a knowing and intelligent waiver of his Miranda rights.
"... Because 'there is nothing cognitively complex about the advice that one has the right to remain silent and not to talk to the police,' Finley v. Rogers, 116 F. App'x 630, 638 (6th Cir. Nov. 18, 2004);...because Jackson had average problem-solving skills and intelligence and because his considerable prior experience with the criminal justice system gave him reason to know the consequences of waiving these rights, the state court did not unreasonably apply Supreme Court precedent in holding that his waiver was knowing and intelligent." Click here for the complete opinion.
People v. Lopez Supreme Court of Illinois June 19, 2008 - Confession suppressed
"The 15-year-old defendant was brought to the police station at approximately 1 p.m. and placed in an interrogation room. Detectives questioned him at that time and advised him that Leal had implicated him in Hector's murder. Defendant provided the detectives with information and was left alone in the same room, with the door closed, for four to five hours while detectives continued to investigate. Defendant was not handcuffed during this period and the door to the interview room remained unlocked. However, defendant's freedom of movement was restricted, as he was not allowed to leave the room without an escort and was never told that he was free to leave the police station."
"At 6 p.m., the detectives who initially brought defendant to the station, questioned him, and left him in the interview room returned to that same interview room and spoke to defendant again. They told defendant that Leal had admitted to participating in Hector's murder and that Leal had implicated him. At this time, defendant was aware that Leal had now implicated him twice in this crime, and that Leal had confessed. Without providing Miranda warnings, the detectives asked defendant "whether he was involved in this incident or not." Defendant answered by giving an incriminating oral statement. Detective Bautista testified that defendant was not questioned while he gave the statement, he "just kept talking." After defendant confessed, the detectives stopped questioning him, gave him his Miranda warnings, and terminated the interview."
"We recognize that defendant's handwritten statement was taken after defendant received Miranda warnings at least twice, that an assistant State's Attorney was doing the questioning rather than a detective, and that defendant's father was present. However, the unwarned and warned statements were taken close in time, in the same place, with Detective Keane present for both, and defendant was never advised that his oral statement would be inadmissible. Viewing all the relevant factors, we cannot conclude that a reasonable juvenile in defendant's position would have understood that he had a genuine choice about whether to continue talking to the police. We find that defendant's handwritten statement was involuntary for fifth amendment purposes pursuant to the United States Supreme Court's decision in Seibert. Defendant's handwritten statement should have been suppressed." Click here for the complete opinion.
In re J.S Court of Appeals of Arizona, Division 1, Department E October 4, 2007
"J.S. argues her confession was coerced and thus involuntary because the detective who questioned her repeatedly told her she had to tell him what happened, thus leading her to believe she did not have the right to remain silent; her parents were not with her during the school interview; and she had made the functional equivalent of a request to end the interrogation."
"During the school interview, the detective repeatedly asked J.S. to tell him what happened with C.S. For example, the detective stated
I need you to tell me what happened.
I need you to be honest with me. There's no telling a part of the truth here and not telling me the rest of it[.] I need to have the whole story....
But I need you to tell me the truth and not leave anything out and not hold things back or change the story. I need to know what happened.
Although J.S. argues these questions led her to believe she could not remain silent, we disagree.
There is nothing wrong with a police officer asking a juvenile to explain what occurred or to tell the truth." Click here for the complete opinion.
Corroborating elements in an arson case
Thomas v. State, Court of Appeals of Idaho, February, 2008
The Defendant appealed his conviction for first-degree arson on the basis that his confession was not sufficiently corroborated to support conviction.
From the Court of Appeals opinion:
"Corpus delicti prohibits the conviction of a criminal defendant based upon nothing more than the defendant's own confession to prove that the crime occurred. The purpose of corpus delicti is to prevent errors in convictions based on false confessions, to act as a safeguard against the defendant's act of confessing but being mistaken that a crime occurred, and to force the prosecution to use its best evidence."
"Much like the testimony of the pathologist in Tiffany, in this case the fire investigator testified that, although his report concluded that the cause of the fire was undetermined, he noticed various red flags that the case had raised for him, such as Thomas's recent purchase of renter's insurance and inconsistencies between Thomas's description of his actions on the evening of the fire and the physical evidence. The fire investigator testified that Thomas's videotaped confession to the escort and description of how he started the fire was consistent with the information that the fire investigator received from the scene. Similar to the evidence in Tiffany, in this case there was evidence of a fire, there was evidence that the fire occurred in a period where Thomas was the sole occupant of the home, and the fire investigator testified that Thomas's confession about how he started the fire was consistent with the physical evidence. As the Supreme Court stated in Tiffany, Idaho law has never required the fact that a crime occurred be proven independently of a defendant's confession."
"In addition to the testimony of the fire investigator that Thomas's confession regarding how he started the fire was consistent with the physical evidence, there was also testimony from the escort that Thomas told her about his plan to burn his home before the fire occurred. Furthermore, there was Thomas's purchase of renter's insurance approximately one month before the fire occurred, even though Thomas lived in the home three months prior to purchasing insurance. Regardless of whether we apply Idaho's current law of corpus delicti requiring slight corroboration or apply the standard from these other jurisdictions as Thomas suggests his attorneys should have argued, we conclude that neither Thomas's motion for dismissal nor his appeal would have been successful. There was sufficient evidence to corroborate Thomas's confession in this case under either standard. Therefore, we conclude that the district court properly dismissed Thomas's post-conviction claim of ineffective assistance of trial and appellate counsel for his attorney's failure to file his motion to dismiss and failure to appeal the sufficiency of the evidence." Click here for the complete opinion.
Unambiguous request for lawyer
State v. Effler, Court of Appeals of Iowa, April, 2008
From the Court of Appeals decision:
"James Carson Effler appeals his conviction for first-degree kidnapping. He contends the district court erred in denying his motion to suppress, arguing his incriminating responses to police questions were made after he had made an unequivocal request for counsel. We reverse and remand."
"The officer then began to read Effler information from a Miranda waiver form. Seconds after the officer read the phrase "I do not want a lawyer at this time," Effler interrupted and said, "I do want a court-appointed lawyer." The detective said, "Okay" and then Effler said, "If I go to jail." The detective responded by saying, "let me finish this and then we'll talk." The questioning continued and the Defendant confessed.
"In the present case, it is indisputable Effler's first statement-"I do want a court-appointed lawyer"-was an unambiguous and unequivocal request for counsel. The State argues Effler's next statement-"If I go to jail"-made this request conditional and that the temporal aspect of Effler's request made it ambiguous because, arguably, Effler did not want counsel until he had actually arrived in jail. We disagree." Click here for the complete opinion.
Bruno v. US District of Columbia Court of Appeals August 7, 2008
In this case the defendant's "main argument on appeal is that the trial court erred in not suppressing his videotaped confession, because police detectives (a) ignored what he contends was an unambiguous assertion of his right to end the custodial interrogation, or (b) failed to clarify whether he was asserting that right before questioning him further. Burno, however, did not unequivocally assert his right to end the interrogation, and under Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), the police were not obliged to clarify his ambiguous responses before questioning him further about the crime. As we find no reversible error otherwise, we affirm the convictions.
"None of Burno's videotaped statements met this "requisite level of clarity." Id. In arguing to the contrary, he asserts essentially three things: first, his statement almost at the beginning that he would "rather not say" EZ's last name signalled to reasonable interrogators that he was no longer willing to submit to questioning; second, even if that is not so, when he re-expressed his unwillingness to talk in response to the critical question of whether he had fired his gun at the officer, the police assuredly knew he did not want to incriminate himself and so answer further questions; and third, the sheer number of instances-eight in all-when he declined to answer particular questions evinced a pattern of unwillingness to speak that should have been clear to the police before he significantly inculpated himself. These arguments are unpersuasive." Click here for the complete opinion.
Do the Miranda warnings require the interrogator to tell the suspect he has the right to an attorney during the interrogation?
State v. Modeste District Court of Appeal of Florida, Fifth District Aug. 8, 2008
In this case the court found that "The officers' statements to Modeste were not an eloquent formulation of Miranda warnings. But the test is whether the warnings reasonably conveyed to the suspect his rights as required by Miranda. Duckworth, 492 U.S. at 203, 109 S.Ct. 2875. Here, Modeste was advised that he did not have to talk to the officers; but that if he did, anything he said could be held against him in a court of law. Modeste was further informed that he had the right to an attorney and, indeed, could consult with an attorney prior to talking to the officers. The officers made no statements that could reasonably be construed to suggest that Modeste's right to counsel did not include the right to have counsel present during interrogation. Finally, Modeste was informed that if he could not afford an attorney, one could be appointed for him. We conclude that the officers' statements adequately advised Modeste of his rights, as required by Miranda." Click here for the complete opinion.
The Value of Recording Interrogations
The following cases all demonstrate the value of recording an interrogation. In several instances they provided the court with the record they needed to determine whether a proper Miranda waiver was made; whether the defendant understood their rights; whether the interrogator engaged in any illegal activities; to rebut an insanity defense, etc.
Hurt v. Virginia, Court of Appeals of Virginia, March 18, 2008 Click here for the complete opinion.
State v. Bumgardner, Court of Appeals of Ohio, Eleventh District, April 11, 2008 Click here for the complete opinion.
State v. Decker, Supreme Court of Iowa, February 8, 2008 Click here for the complete opinion.
People v. Bolton, Court of Appeal, First District, Division 4,, California September 4, 2008 Click here for the complete opinion.
Sparks v. State, Court of Appeals of Texas, Fort Worth, August 28, 2008 Click here for the complete opinion.
State v. Warledo, Supreme Court of Kansas, August 8, 2008 Click here for the complete opinion.
State v. Chestnut Court of Appeals of Arizona September 11, 2008 In this case the court found that there was no error in allowing a videotape of defendant's interview with police to go to the jury during deliberations. Click here for the complete opinion.