Legal Updates: Summer 2011

The Supreme Court holds that a child's age properly informs the Miranda custody analysis

In this case, J.D.B. v. North Carolina, (June 2011) the United States Supreme Court ruled that a juvenile’s age must be a consideration in the determination of custody and the subsequent advisement of Miranda rights.

The Court stated that “Reviewing the question de novo today, we hold that so long as the child's age was known to the officer at the time of police questioning, or would have been objectively apparent to a reasonable officer, its inclusion in the custody analysis is consistent with the objective nature of that test. This is not to say that a child's age will be a determinative, or even a significant, factor in every case.

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Elements to consider in determining a juvenile’s ability to make a knowing and intelligent waiver of his rights

In the case of State v. Gutierrez, (May 2011) the Supreme Court of New Mexico considered whether or not a 16 year-old defendant suffering from “ a mental impairment caused by attention deficit hyperactivity disorder (ADHD)” could make a knowing and intelligent waiver of his rights. In their opinion the court outlined the lements to consider in making this assessment:

“In determining whether [a child over the age of fifteen] knowingly, intelligently and voluntarily waived the child's rights, the court shall consider the following factors:

(1) the age and education of the respondent;

(2) whether the respondent is in custody;

(3) the manner in which the respondent was advised of the respondent's rights;

(4) the length of questioning and circumstances under which the respondent was questioned;

(5) the condition of the quarters where the respondent was being kept at the time of being questioned;

(6) the time of day and the treatment of the respondent at the time of being questioned;

(7) the mental and physical condition of the respondent at the time of being questioned; and

(8) whether the respondent had the counsel of an attorney, friends or relatives at the time of being questioned.”

The court concluded “In this case, we similarly conclude that, notwithstanding Child's ADHD diagnosis, there is no evidence that he lacks sufficient intelligence to have understood his rights or the consequences of waiving them. Evidence in the record supports the district court's findings that Child was sixteen years and eleven months old at the time of his interrogation, he had been advised of his rights on previous occasions, and he had, in fact, refused to speak to authorities without a lawyer present on at least one of these occasions. In addition, Child possessed a lengthy juvenile arrest record and had appeared in court several times. On these facts, we are not persuaded that Child's ADHD prevented him from sufficiently understanding his rights or the consequences of waiving them. One advantage of the totality-of-the-circumstances approach is that it allows courts “to take into account those special concerns that are present when young persons, often with limited experience and education and with immature judgment, are involved.” Fare, 442 U.S. at 725. Another advantage is that it “refrains from imposing rigid restraints on police and courts in dealing with an experienced older juvenile with an extensive prior record who knowingly and intelligently waives his Fifth Amendment rights and voluntarily consents to interrogation.” Id. at 725–26.
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16 year-old’s confession upheld – example of factors to consider in juvenile interrogation

In the case State v. LaCroix, (May 2011) the Court of Appeals of Washington, Division 1, upheld the admissibility of a 16 year-old’s confession.  On appeal the defendant had claimed that the length of the interrogation (5 hours) and the coercive police activity during the interrogation should have resulted in a suppressed confession. In their opinion the Appeals Court found that “As noted, the trial court's finding that he was interrogated for approximately five hours during normal waking hours is supported by the evidence. The five hours of interrogation were spread over a nine hour period. He was provided with food, beverages, bathroom breaks, and other periods without questioning. LaCroix cites no authority compelling a finding that such circumstances amount to coercion.”

As to coercive police activity, the court stated that, “A police officer's psychological ploys, such as playing on the suspect's sympathies, saying that honesty is the best policy for a person hoping for leniency, or telling the suspect that he could help himself by cooperating may play a part in a suspect's decision to confess, “but so long as that decision is a product of the suspect's own balancing of competing considerations, the confession is voluntary.” …..“The question [is] whether [the interrogating officer's] statements were so manipulative or coercive that they deprived [the suspect] of his ability to make an unconstrained, autonomous decision to confess.”

“LaCroix next points to the officers' repeated assertions both that it was in his best interest to be honest with them, and that they believed he was being dishonest. In this regard he also points to the officers' use of the CVSA in support of their statements to him that he was not believed by them and to the officers' claim that another suspect had implicated him.

“Moreover, the officers' references to the results of the CVSA in support of their contentions that LaCroix was being dishonest did not render LaCroix's subsequent statements involuntary…. the United States Supreme Court rejected the proposition that the use of a polygraph during interrogation is inherently coercive. In fact, “ ‘[c]ourts have held confessions to be voluntary when police falsely told a suspect that his polygraph examination showed gross deceptive patterns,’… and Washington courts have declined to suppress confessions merely because they were given after the administration of a polygraph test.

“LaCriox's age at the time of his interrogation similarly does not militate in favor of finding that his statements were involuntary. At the time of the interrogation, LaCroix was “one and a half months shy of his seventeenth birthday.”  While a suspect's age must be considered in evaluating the admissibility of a confession, it is well established that a 16–year–old can voluntarily confess, even in the absence of a friendly adult.”

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Court rejects the testimony of Professor Alan Hirsch - no evidence the Reid Technique produces false confessions 

In the case of US v. Jacques, (May 2011) the US District Court of Massachusetts rejected the proffered testimony of defense expert Professor Alan Hirsch on the issue of false confessions, stating, in part, that:

"This court excluded Professor Hirsch's testimony on two principal grounds: (1) he lacked specialized knowledge that would assist the jury in understanding or weighing the evidence; and (2) his testimony was not based on sufficient facts or data and did not involve the application of reliable principles or methods to the facts of this case."

In his testimony Professor Hirsch indicated that the Reid Technique generated false confessions, but could provide no evidence to support this position as the court pointed out:

"Professor Hirsch's criticism of the Reid technique appeared, at one point in his testimony, to be that it increased the overall number of confessions, both true and false…. ("I want to be very clear that, number one, the Reid Technique is too effective. The problem is not that it's ineffective. It breaks down guilty suspects. The problem is that it also breaks down innocent suspects.").) Again, he failed to point to any data supporting even this position, which does not address the central issue here: the relative frequency of false confessions and the factors contributing to it.

In sum, the proffered expert testimony to the effect that the Reid technique enhanced the risk of an unreliable confession lacked any objective basis for support whatever. Although Professor Hirsch insisted that "there is a wealth of information about the risks of the Reid technique," he could point to none…. It is true, as able defense counsel pointed out, that all science is not the same, and in the area of false confessions the kind of strictly mathematical support available in other areas may be lacking. But some objective basis other than say-so must be offered, and none was."

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Jury rejects the testimony of Dr. Richard Leo

In the case People v. Hernandez, (April 2011) the Court of Appeal, Second District, California upheld the conviction of the defendant.  At trial Dr. Richard Leo testified that in this case he “found evidence of coercive techniques. The detectives suggested Hernandez would be less culpable if he did not plan the shooting, implying leniency, and mentioned not getting to see his son again. The detectives asked Hernandez, “Are you the guy that did that, or are you the guy that got caught up in the circumstance that just happened? [Be]cause that's something that can be explained.” This suggested Hernandez's explanation of the incident might not be criminal. This theme recurs throughout the interrogation. The detectives suggest they are going to help Hernandez present the case to the District Attorney in a way that will be beneficial to him and will not prevent him from not seeing his son for 20 years. The detectives gave Hernandez the impression the shooter was culpable and Hernandez was less culpable. At the end of the interview, Hernandez asked about “the timeframe on ... being out there with my boy?” This indicates Hernandez believed he would be released if he gave the detectives an account they found to be truthful. Leo concluded the detectives used many coercive techniques in the interviews.”

The jury rejected the premise proposed by Dr. Leo and convicted Hernandez.  Of special note, Dr. Leo testified that The Reid Manual, which is the Bible of modern interrogation, advises not to exceed four hours of interrogation because longer interrogations might be seen as coercive.” This statement is false. In the 4th  edition of Criminal Interrogation and Confessions on page 423 we state the following:

Many guilty suspects who confess after several hours of interrogation will claim: “The pressure was so intense I would have said anything to bring it to an end.” A properly conducted interrogation that lasts 3 or 4 hours, for the ordinary suspect, is certainly not so long as to cause the levels of emotional or physical distress that constitute duress. However, if physical coercion is involved, even a 30-minute interrogation may warrant such a bona fide claim. The following guidelines are offered to evaluate claims of duress:

1.        Can the excessive length of interrogation be explained by the suspect’s behavior? For example, did the suspect offer a series of different versions of events, before offering the first incriminating statement? A suspect who has maintained his innocence and made no incriminating statements for 8 or 10 hours has not offered any behavior to account for this lengthy period of interrogation.

2.        Did the suspect physically or verbally attempt to seek fulfillment of biological needs? If so, were such requests denied or used as leverage to obtain the confession (e.g., “You can use your asthma inhaler after you confess.”). A suspect who made no such verbal requests or physical efforts to bring the interrogation to a close has a much weaker case. In this instance, it would appear that only in retrospect, after reviewing the interrogation in his mind, or with an attorney, did the suspect decide that the conditions of the interrogation were intolerable.

3.        Were there any threats made with respect to denying the suspect basic biological needs unless he confessed (e.g., “You’re not leaving here until you confess—no matter how long it takes.”).
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Dr. Richard Ofshe testifies

In the case Contreras v. State (Juun 2011) Dr. Richard Ofshe testified “as an expert witness on the subject of police interrogation tactics and influence. In particular, he testified about the significance of certain tactics and explained how they can be psychologically coercive. Further, Dr. Ofshe related to the jury that false confessions do occur and people sometimes confess to a crime they did not commit.”

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Court rejects the testimony of Dr. Richard Ofshe

In the case Brown v. Horell, (July 2011) the US Court of Appeals, Ninth Circuit, upheld the lower court’s decision to exclude the testimony of Dr. Richard Ofshe on the basis that his testimony would not help the jury assess the credibility of the defendant’s confession.
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Court rejects psychiatrist Bobby Miller, M.D., as an expert witness on false confessions

In the case State v. Black, (March 2010) the Supreme Court of Appeals of West Virginia upheld the lower court’s decision to reject the testimony of psychiatrist Bobby Miller, M.D. on the basis that “this testimony does not come up to any standards of reliability as far as scientific testing go[es],…”  

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Court does not allow Dr. Karen Fukutaki to testify as an expert witness on confession voluntariness

In the case Gruwell v. State, (April 2011) the Supreme Court of Wyoming upheld the lower court’s decision to exclude the testimony of Dr. Karen Fukutaki as to the “voluntariness of the confession and the psychology relating to confessions” due to the defendant not properly notifying the prosecution of their intent to call this witness in a timely manner.  

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Court rejects the testimony of Dr. Sol Fulero

In the case State v. Langley, (May 2011) the Court of Appeal of Louisiana, Third Circuit, the court upheld the trial court’s decision to reject the testimony of Dr. Sol Fulero on the basis that “the judge indicated that he did not think the testimony would assist him in reaching a decision regarding whether the defendant gave a false confession.”

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Another Court excludes the testimony of Dr. Solomon Fulero

In the case United States of America ex rel. Tenisha Carter v. Transcoso, (April 2011) the US District Court, N.D Illinois, upheld the lower court’s exclusion of the testimony or Dr. Solomon Fulero.  In their opinion the District Court stated that, “Dr. Fulero's testimony was offered to show that Carter's environment was coercive and likely to lead to a false confession given her mental state as a juvenile. While these issues are related, it is by no means clear that Dr. Fulero's testimony would have been directly on point, as Carter claims. In fact, it is telling that Carter does not rely whatsoever on evidence Fulero would have introduced in arguing that the state court improperly decided that there was no seizure until Carter confessed. Thus, the Court cannot find that the state court's evidentiary ruling regarding Dr. Fulero's arguably unrelated testimony, which Carter had the opportunity to contest in state court, deprived Carter of a full and fair opportunity to be heard.”

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Court excludes the testimony of Dr. Mark Costanzo

In the case People v. Purcell, (July 2011) the California Court of Appeal, Second District, upheld the lower court decision to exclude the testimony of Dr. Mark Costanzo on the issue of  false confessions, indicating that, “At trial, appellant recanted his confession. He returned to his original description of the murder as Baltazar shooting Willis in anger at Willis's complaints about the cost of appellant's proposed carpentry work. He testified he falsely confessed to shooting Willis in order to ensure his family's safety. In support of his recantation, appellant offered the testimony of Dr. Mark Costanzo, an expert in police interrogation techniques and false confessions. Dr. Costanzo was prepared to opine for the jury that sheriff's investigators had used two techniques likely to induce a false confession: telling appellant he had failed a “fake” lie detector test, and promising him leniency if he told investigators the truth. The trial court excluded Dr. Costanzo's testimony in both trials.”

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Court rejects expert testimony of defendant's limited mental capacity and suggestibility

In the case
Vance v. State, (June 2011) the Supreme Court of Arkansas upheld the Circuit Court’s decision to reject the testimony of Dr. Daniel H. Grant, a neuropsychologist and expert in forensic psychology, and Dr. Stephen Greenspan, an expert in psychology and developmental disabilities. Dr. Grant’s testimony was that “he had conducted numerous tests on Appellant over the course of two days and determined that Appellant had a full scale IQ of 75, which placed him in the fifth percentile. He opined that Appellant had cognitive impairments or deficits involving language and memory. Dr. Greenspan, who had recently authored a book on the effect of cognitive impairment on a person's tendency to engage in foolish or gullible behavior, testified that people with limited intelligence are much more likely to give false confessions. In addition, Dr. Greenspan explained that persons with cognitive impairments have a “need to look more normal than they really are to cover up their limitations,” so they confabulate or “fak[e] knowledge that they don't have,” and when the veracity of their account of an event is challenged, they change what they are saying “to create the appearance of competence ... or to get the people who are questioning them to leave them alone.” Dr. Greenspan acknowledged that he had not interviewed Appellant but had reviewed the transcripts and tapes of Appellant's statements to police; he opined that he “saw lots of evidence of what I would consider confabulation as reflected in the fact that [Appellant] gave many different versions often changing the same version on a dime basically.” The circuit court stated that, after hearing the foregoing proffered testimony, it was even more convinced that to allow such testimony would be to invade the province of the jury.”

The Supreme Court of Arkansas ruled that “We see no abuse of discretion in such a ruling. Appellant had ample opportunity to cross-examine the officers who took his statements. In addition, the jury viewed a videotape of one of Appellant's statements and heard an audio recording of two others. The proffered testimony was not beyond the ability of the jury to understand and draw its own conclusions. Since Dr. Greenspan opined that Appellant was confabulating, the proffered testimony would have invaded the jury's function as trier of fact.”

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What constitutes a promise of leniency?

In the case of Ozuna v. Texas, (May 2011) the Court of Appeals of Texas, Austin, found that “For a promise to render a confession invalid, it must be positive, made or sanctioned by someone in authority, and of such an influential nature that it would cause a defendant to speak untruthfully….General offers to help a defendant are not likely to induce an accused to make an untruthful statement, and therefore will not invalidate a confession. Similarly, general statements made to a suspect that a confession may sometimes result in leniency do not render a confession involuntary.”  

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The difference between “limited assurances” and promises of leniency

In the case US v. Pacheco, (May 2011) the US District Court, D. Utah, drew a distinction between “limited assurances” and promises of leniency.  In their opinion they stated that “Under Supreme Court and Tenth Circuit precedent, a promise of leniency is relevant to determining whether a confession was involuntary....” The Supreme Court has recognized that when individuals are “in custody, alone and unrepresented by counsel,” they are “sensitive to inducement” by promises of leniency.  Not all promises, however, are coercive. Courts have held that an officer may make a promise to talk with a prosecutor and recommend leniency.  An officer may even speculate that such “cooperation will have a positive effect.” Because such statements are mere “limited assurances,” they are permissible.  Statements, however, that go beyond limited assurances can “critically impair a defendant's capacity for self-determination.”

In this case, the investigator “made repeated improper use of the word “I” during the interrogation. He said I can charge you with one count or I can charge you with ten; I am the first point in judging in the federal system; I am going to indict you; I already have a U.S. attorney on board; and I can charge the January 17th robbery under the Hobbs Act. Besides these statements, Detective Wendelboth conveyed to Pacheco that he was leaving it up to him to decide whether to confess so he could avoid a life sentence and get out to see his children grow up. The import of these statements is that Pacheco would have reasonably understood that Detective Wendelboth had the authority to make a deal, that he would decide what counts to charge based on the level of Pacheco's cooperation, and that if Pacheco confessed he would not receive a life sentence.

Although Detective Wendelboth did briefly mention that he would go to the AUSA, his comment was insufficient to clarify that he had no authority to make a deal with Pacheco and that he only would be making a recommendation to the AUSA. The court therefore concludes Detective Wendelboth's statements were not mere “limited assurances,” but promises of leniency that could result in a coerced confession.”

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If you do not tell the truth, “Life has ended.”  Does this statement constitute a threat?

In the case of People v. Cardenas, (May 2011) the Sixth District Court of Appeal, California, says that it does not constitute a threat.  In their opinion the court stated that, “The sergeant's testimony indicated that the remark was neither a threat of harsher punishment if defendant Plancarte did not confess to robbery nor a promise of greater leniency if he did. Rather, the gist of the remark appears to be that, absent the “truth,” life as defendant Plancarte knew it would end, which would seem to imply that the police already had a convincing case against defendant Plancarte unless the “true” facts put things in a different light. Exaggeration of the strength of the evidence against a defendant during interrogation does not necessarily render a confession involuntary… Mere advice or exhortation by the police that it would be better for the accused to tell the truth, when unaccompanied by either a threat or a promise does not ... make a subsequent confession involuntary.

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Confession made to company investigators ruled inadmissible because it was the result of a promise not to prosecute

In the case State v. Powell, (May 2011) the Court of Appeals of Oregon upheld a lower court’s decision the suppress a confession from an employee because the “express and implied promises of immunity from criminal prosecution given to the defendant by the Fed Ex investigators render[ ] his statements to them involuntar[y].”  In this case the employee was told the following by the company investigators:

“It's apparent that you took this stuff, so now we're at a crossroads, okay? * * * We're at a point where either we handle it in-house here, in FedEx, or we can turn everything we have over to the [police department], and then they handle it from there. Now if you choose that route, there's nothing you can do. They'll be going to get search warrants for your house, for your mother's house. They'll go through all of your stuff. It's just gonna be a big mess, okay? * * *

“At this point, our base concern here at FedEx is we want to know, we need to make a customer happy. And if we can make the customer happy, then they don't come back on [defendant], okay? And I don't think you're a bad guy, okay? If I had thought you were a bad guy I would've taken all this stuff and we would've given it to the [police department] and said, ‘You gotta jack him up, we're done with him,’ okay? I don't feel that way. You've got a lot of stuff going on in your life right now, and I know it. People do boneheaded things, okay? But where we go now is what's going to decide your future. * * * Nobody but who's in this room needs to know.

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The detective's statement that “[i]f you admit to things, you make mistakes, you made a bad choice; but if you deny this, in my book, you are a criminal,” was merely moral urging…not a promise of leniency

In the case Garcia v. State, (April 2011) the District Court of Appeal of Florida found that “The detective's statement that “[i]f you admit to things, you make mistakes, you made a bad choice; but if you deny this, in my book, you are a criminal,” was merely moral urging.”  They stated that, “The constitution does not bar the use ... of any statements that could be construed as a threat or promise, but only those which constitute outrageous behavior and which in fact induce a confession.” There must also be a causal nexus between the improper conduct or questioning and the confession. A confession is not involuntary if officers do nothing more than “encourage or request that person to tell the truth.”

“We do not reach the question of whether the detective's promise was “outrageous,” because the detective's statements do not constitute or suggest a promise of leniency. The detective's statement that “[i]f you admit to things, you make mistakes, you made a bad choice; but if you deny this, in my book, you are a criminal,” was merely moral urging. “Encourag[ing] or request[ing][a] person to tell the truth” does not result in an involuntary confession.”

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The statements, “I have no intention of putting you in jail tonight” and “If you have a problem, we can help you.... I promise you, I will do everything I can to help you. “ were not promises of leniency.

In the case of State v. Leeson, (May 2011) the Court of Appeals of New Mexico upheld the lower courts decision to admit the defendants confessions.  On appeal the defendant had argued that his confession was involuntary because it was elicited by false or implied promises and threats.  In examining this issue the court made the following observations:

“The court quoted Detective Kohler as having stated, “[r]ight now, no matter what happens, no matter what you tell me, and I swear to this, I have no intentions of putting you in jail tonight.” The express promise did not concern long term leniency, only the avoidance of jail that night and provided no incentive or disincentive to make admissions. The district court noted that the detective kept this promise, even though Defendant made certain admissions.

“The district court also concluded that Defendant could have inferred an implied promise to get help for him if he was cooperative. At the hearing on his motion, Defendant pointed to the following statements Detective Kohler made in the first interview as implied promises. “If you have a problem, we can help you.... I promise you, I will do everything I can to help you.... That might be something we can help you with.” We addressed similar statements regarding possible treatment in State v. Lobato, 2006–NMCA–051, ¶ 1, 139 N.M. 431, 134 P.3d 122, where the defendant was charged with criminal sexual penetration of a minor. We agreed that the statements in that case gave the impression that the defendant would get treatment if he confessed, but we did not find any promise that the defendant would get treatment instead of prison time or would get a lesser sentence of imprisonment….We concluded that the defendant's confession was not rendered involuntary by the officer's discussion of possible treatment. We reach the same conclusion here.”

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Is the statement “…you might be charged with one thing you know there's plea agreements and things they can work out a deal” a promise of leniency?

In the case Sims v. State, (April 2011) the Court of Appeals of Indiana upheld the lower court’s opinion that this statement was not a promise of leniency.  The full statement that was at issue was the following:

“But ... don't be silly and lie about this I mean because even though you might be charged with one thing you know there's plea agreements and things they can work out a deal with you but don't throw away your entire life because that jury is going to be pi* *ed and that judge is gonna [be] pi* *ed if you go in lying in Court. They're gonna say [he] shows no remorse, he doesn't feel bad about what happened and whether you cry or not I mean that's not ... that's not what remorse is about. But doing the right thing here and telling the truth what happened that's ... that's what you need to do.”

The court found that, “Here, however, Detective Mayhew neither promised Sims his punishment would be mitigated nor misstated the law. Rather, the detective merely told Sims that it was in his best interest to be honest and tell the real story, and that plea agreements and deals were available. The Indiana Supreme Court has consistently held that vague and indefinite statements by the police about it being in the best interest of the defendant for him to tell the real story or cooperate with the police, such as the one in this case, are not sufficient inducements to render a subsequent confession inadmissible.”

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Rhode Island Supreme Court decides not to require electronic recording of interrogations

In the case State v. Barros, (July 2011) the Supreme Court of Rhode Island rejected the defendant’s contention that “custodial interrogations conducted in a place of detention should be electronically recorded from start to finish and that his confession should have been suppressed due to the fact that the interrogations that he underwent were not recorded in toto.”  The court stated that “we very recently stated that, “neither the United States Supreme Court nor this Court has ever held that due process requires that a custodial interrogation must be contemporaneously recorded.”….. (“[W]e see no hint that the Supreme Court is ready to take such a major step.”). To date, no federal appellate court has held that the federal due process clause provides a criminal suspect with a right to mandatory electronic recording…… After studying the issue afresh in a de novo manner, we remain convinced that the federal due process clause does not require electronic recording of custodial interrogations.”

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Can an intoxicated suspect make a voluntary confession?

In the case Frazier v. State, (July 2011) the Georgia Court of Appeals upheld the admissibility of the defendant’s incriminating statement even though he was under the influence of alcohol at the time he made the statement.  The court stated that “The mere fact that a defendant was intoxicated at the time of the statement does not render it inadmissible.”

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Can “days of drug use and sleep deprivation” render a confession inadmissible?

In the case State v. Decloues, (March 2011) the Court of Appeal of Louisiana, Fourth Circuit upheld the trial court’s decision to admit the defendant’s confession, even though the defendant claimed that “he was impaired from days of drug use and sleep deprivation at the time he gave his statement.”  In their opinion the court stated that “The defendant argues that his demeanor during the taped confession and his testimony at trial clearly show that he was impaired at the time he gave his confession….. Our review of the taped confession indicates that at the beginning of the interview the detective read the defendant his rights. The defendant appears attentive while those rights were being read, acknowledging each one individually. When asked whether he understood his rights, the defendant gave a definitive yes. The defendant is noticeably fidgety and sometimes had to be asked to speak up, but… he was easily calmed. His answers were responsive to the questions asked by the detective…. Moreover, the defendant's confession coincides with the physical evidence presented at trial.”

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Three cases address the “objective criteria” for determining custody - US v. Hughes, State v. Campfield and Commonwealth v. Truong

The determination of whether custody exists “depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned.”

In the case US v. Hughes, (April 2011) the US Court of Appeals, First Circuit, upheld the lower court’s opinion that the defendant was not in custody at the time that he made incriminating statements.  In considering this issue, the Court of Appeals stated that, “the determination of whether custody exists “depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned.” Stansbury, 511 U.S. at 323, 114 S.Ct. 1526. Thus, the interrogating officer's intent, not communicated to the individual being questioned, is irrelevant to the inquiry. See Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984).

This court has identified four factors that, among others, may inform a determination of whether, short of actual arrest, an individual is in custody. These factors include “whether the suspect was questioned in familiar or at least neutral surroundings, the number of law enforcement officers present at the scene, the degree of physical restraint placed upon the suspect, and the duration and character of the interrogation.”

The court also added, “Last—but far from least—the record amply supports the district court's finding that the ambiance was relaxed and non-confrontational throughout the interview. The troopers' demeanor remained calm, the time of day (late morning) was not menacing, and the defendant was appropriately dressed. The troopers were polite and never hectored the defendant or raised their voices. Details such as these are entitled to some weight in determining whether a particular interrogation was custodial.”

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In the case of State v. Campfield, (June 2011) the Superior Court of New Jersey, Appellate Division addresses the issue of the criteria to determine custody.  In their opinion the court noted the following:

“The test employed to determine whether a custodial interrogation has taken place is an objective one…. We consider the totality of the objective circumstances surrounding the police questioning, such as “the length of the interrogation, the place and time of the interrogation, the nature of the questions, the conduct of the police and all other relevant circumstances.” ….The analysis looks to whether objective evidence of the surrounding circumstances would lead a reasonable person to believe that he or she was free to leave.

The fact that an interrogation took place at police headquarters is not determinative, …but neither is the fact that the defendant was told he was free to leave at any time…. The fact that a defendant was a prime suspect at the time of the interrogation is also not definitive, as the Supreme Court held in Nyhammer, supra, 197 N.J. at 406, 963 A.2d 316.

In Nyhammer, the Court emphasized the import of the custodial aspect of the interrogation to determination of the Miranda issue.

Significantly, we are not aware of any case in any jurisdiction that commands that a person be informed of his suspect status in addition to his Miranda warnings or that requires automatic suppression of a statement in the absence of a suspect warning. The essential purpose of Miranda is to empower a person—subject to custodial interrogation within a police-dominated atmosphere—with knowledge of his basic constitutional rights so that he can exercise, according to his free will, the right against self-incrimination or waive that right and answer questions. …The defining event triggering the need to give Miranda warnings is custody, not police suspicions concerning an individual's possible role in a crime. See Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L. Ed.2d 714, 719 (1977) (“[P]olice officers are not required to administer Miranda warnings ... because the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person's freedom as to render him ‘in custody.’ ”); Beckwith v. United States, 425 U.S. 341, 346–47, 96 S.Ct. 1612, 1616, 48 L. Ed.2d 1, 7–8 (1976) (“It was the compulsive aspect of custodial interrogation, and not the strength or content of the government's suspicions at the time the questioning was conducted, which led the court to impose the Miranda requirements with regard to custodial questioning.” (citation and internal quotation marks omitted)).

We are satisfied, after according the required deference to the judge's findings of fact, that the judge's legal conclusions are fully supported by the record and the law. Even if the police viewed Campfield as a suspect, or even the prime suspect, those suspicions need not have been disclosed to Campfield and they did not automatically convert any contact with Campfield into a custodial interrogation…. As the judge aptly observed, the inquiry turns not on what the police knew or suspected, but on whether objective evidence of the surrounding circumstances would lead a reasonable person to believe that he or she was free to leave.

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“The critical question is “whether, considering all the circumstances, a reasonable person in the defendant's position would have believed that [she] was in custody.”

In the case Commonwealth v. Truong, (February 2011) the Superior Court of Massachusetts, Worcester County, ruled that the defendant was in custody at the time she made incriminating statements and should have been advised of her rights. In their opinion the court stated that “[C]ustodial interrogation [is] questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of [her] freedom in any significant way.” …In determining if a person is deprived of freedom in a significant way, the Supreme Judicial Court has recognized four factors to be considered: “(1) the place of the interrogation; (2) whether the officers have conveyed to the person being questioned any belief or opinion that the person is a suspect; (3) the nature of the interrogation, i.e. whether the interview was aggressive or, instead, informal; and (4) whether, at the time the incriminating statement or statements were made, the suspect was free to end the interview by leaving the place of the interrogation or by asking the interrogator to leave, or, alternatively, whether the interview terminated with the defendant's arrest.”

“The test is an objective one: whether a reasonable person in the suspect's shoes would experience the environment in which the interrogation took place as coercive.” ….The critical question is “whether, considering all the circumstances, a reasonable person in the defendant's position would have believed that [she] was in custody.”

Taking into consideration the four factors and applying them to the totality of the circumstances in this case, the court finds that the defendant has met her burden of proving that she was in custody. Nga had been transported to the police station by a police officer and brought to an interrogation room, equipped with audio and video recording, where she was questioned by two police officers for over two hours. Here, the officers did not just convey to Nga that she was a suspect, but, as found by this court, they spent most of the two hours telling Nga she had killed Khyle, and that she had also killed Hein eight years earlier. The nature of Nga's interrogation was not conversational or informal. To the contrary, the questioning was exceedingly formal and particularly aggressive. Finally, when Nga attempted to end the interview she was not free to leave, and at the end she was arrested. There is no question that a reasonable person in Nga's position would understand that she was not free to leave at the time she made the statement.

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Defendant claims the Miranda warnings were “materially defective”

In the case Rigteinkr v. State, (June 2011) the Supreme Court of Florida found that the following Miranda warnings that were read to the defendant were not materially defective:

[Police Officer]: Do you hereby understand that one, I have the right to remain silent. Two, anything I can say, can and will be used against me in court. Three, I have the right to have an attorney present prior to questioning. Four, if I cannot afford an attorney, one will be appointed to represent me by the court. Do you understand that?

From the Florida Supreme Court: “The warnings in this case reasonably conveyed to Rigterink his right to counsel because, given the context in which the police administered the Miranda warnings, the warnings provided a clear, understandable instruction that Rigterink had the right to counsel both before and during a custodial interrogation. This is in accord with the decision in Powell II because, there, the United States Supreme Court deemed a Miranda warning proper and sufficient that conveyed the right to counsel in language with no greater clarity than the language used in the warnings administered to Rigterink. Thus, because the warning in Powell II satisfied the parameters of Miranda and its progeny by reasonably conveying knowledge of the right to counsel both before and during a custodial interrogation, we conclude that, logically, the clearer and more descriptive warning administered to Rigterink in this case also complies with the requirements of Miranda and its progeny.

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Does the statement, “You mind if I not say no more and just talk to an attorney about this.” represent an unequivocal request for an attorney?

In the case Ballard v. State, (July 2011) the Court of Appeals of Maryland overturned the trial court’s opinion that the statement “You mind if I not say no more and just talk to an attorney about this.” represented an ambiguous and equivocal statement that did not sufficiently invoke the defendant’s right to counsel.  In their opinion the Court of Appeals stated that, “The question boils down to whether Petitioner's statement, “You mind if I not say no more and just talk to an attorney about this,” was a sufficiently clear articulation of his desire to have counsel present during the remainder of the interrogation, such that a reasonable police officer in the circumstances of Detective Kaiser “would understand the statement to be a request for an attorney.” Id. at 459. We conclude that the answer to that question is “yes”; Petitioner's words were an unambiguous and unequivocal assertion of the right to counsel.”

“Petitioner's words, by contrast, even if understood to be phrased as a question, as the suppression court evidently found them to be, transmit the unambiguous and unequivocal message that he wanted an attorney. A speaker who begins a statement with the phrase, “you mind if ...” suggests to his or her audience that the speaker is about to express a desire, whether to do something or have something occur. The phrase “you mind if ...” in this context is a colloquialism; it is reasonably assumed that the speaker is not actually seeking permission to do the thing desired or to have the desired thing occur.

But even if viewed not as a colloquialism but rather as having literal meaning, the import of the words is no different. Viewed from the perspective of a reasonable police officer in the position of Detective Kaiser, the most that could be said about Petitioner's words, “You mind if I not say no more and just talk to an attorney about this,” is that Petitioner, though undoubtedly asking for an attorney, sought to couch the request in polite or (more likely, given the context) deferential terms. In other words, to the extent that the phrase “you mind if ...” is understood as Petitioner genuinely posing a question, the only question he reasonably posed was whether Detective Kaiser “mind[ed]” if Petitioner stopped talking and got an attorney.”

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Does a suspect have to be advised of his Miranda rights after a 15 hour interlude between interrogation sessions?

In the case Bridges v. Valley, (July 2011) the US District Court, E.D. New York, upheld the trial court’s decision that Miranda warnings did not have to be given at the out set of an interrogation that began 15 hours after the suspect’s initial interrogation and waiver of rights.  

Here is the case background: Upon his arrest, at 9:45 p.m. on June 24, petitioner was read his Miranda rights and signed a written advice and waiver. After just over two hours of questioning, he made an exculpatory statement at 11:45 p.m., admitting that he was in the area of the shooting at the time but denying any knowledge of it. He remained in custody overnight. The next day, at noon, he was questioned again, without additional Miranda warnings, and essentially gave the same statement.

Just over three hours later, at 3:25 p.m., he was interrogated again; the detectives, who had his signed Miranda waiver form from the previous night, did not re-administer the warnings. Petitioner then broke down and admitted that he was the shooter. The detectives wrote down petitioner's statement, and he signed it. At 8:25 p.m., an Assistant District Attorney interviewed petitioner on videotape. Petitioner acknowledged that he had received and waived his Miranda rights the preceding evening, and the ADA again advised him of those rights and petitioner again agreed to waive them. He then repeated his confession.

In their opinion, the District Court stated, “The controlling Supreme Court authority is Wyrick v. Fields, 459 U.S. 42, 47, 103 S.Ct. 394, 74 L.Ed.2d 214 (1982). There, the Court rejected the contention that the mere passage of time could require the re-administration of Miranda warnings. Rather, the Court held that renewed warnings were not required “unless the circumstances changed so seriously that his answers no longer were voluntary, or unless he no longer was making a ‘knowing and intelligent relinquishment or abandonment’ of his rights.” To make that determination, the Court required a review of “the totality of the circumstances” to determine if the confession was voluntary.

In the instant case, petitioner's arguments before the Appellate Division relied solely on the passage of time between his waiver and his confession. The record contains no other facts upon which he could have relied. While in custody, he was fed or offered food several times, he slept overnight, and there is no evidence that he was denied the use of a bathroom or subjected to coercive measures. His location did not change; he remained at the police precinct, either in a holding cell or interview room, throughout. Moreover, when he gave his videotaped confession, he acknowledged that he had previously been given and waived his rights, thus foreclosing any possible claim that he had forgotten them. Finally, as the hearing court noted, petitioner was “not a novice to the criminal justice system,” further suggesting that he knew and voluntarily waived his rights.”

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Court rules that a “mildly mentally retarded” individual can make a knowing and intelligent waiver

In the case Webster v. State, (April 2011) the Court of Criminal Appeals of Oklahoma upheld the lower court’s ruling that a “mildly mentally retarded” individual can make a knowing and intelligent waiver.  In their opinion they stated, “Regarding Webster's mental retardation, this Court recognizes that a defendant's level of intelligence is a factor in determining whether that defendant's waiver of Miranda rights was knowing and intelligent. Yet this Court rejects Webster's assertion that a person who has been deemed “mildly mentally retarded” is incapable of a knowing and intelligent waiver. In Phillips v. State, this Court addressed this very issue and held that “unless an accused's degree of retardation is so great as to deprive him of the capacity to understand the meaning and effect of his confession, his deficient intelligence is but one factor to be considered within the totality of the circumstances in determining voluntariness and admissibility.” Upon a review of the recorded interview, this Court agrees with the trial court and finds that Webster's retardation was far from obvious and that although he did not appear to be a person of great intelligence (or a proficient speller or have a particularly good memory), Webster's responses during the interview repeatedly demonstrated that he was fully aware of what was going on, the situation that he was in, and what was at stake.

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Characteristics of a defendant who gave a false confession

In the case of Floyd v. Cain, (May 2011) the Supreme Court of Louisiana ruled that “Considering all of the evidence, including Floyd's false confession to the murder of Robinson, Floyd's low IQ and susceptibility to suggestion, the missing police records, the lack of evidence linking Floyd to the murder of Hines, the exculpatory value of the fingerprint evidence, defendant is entitled to a new trial.”  As part of their decision making process the court examined the information that the defense offered re the characteristics of the defendant, including the following:

“The defense suggests that Floyd has an IQ of 59 (well below the threshold for mental retardation). Dr. Gregory DeClue, a forensic psychologist, who testified at Floyd's post-conviction hearing, administered the WAIS IV IQ test to Floyd at the Louisiana State Penitentiary in Angola in June 2009, and that test indicated Floyd has a full scale IQ of 59. The generally accepted cut off for mental retardation is 70. According to DeClue, 99% of all adults in the United States score higher on the test than Floyd.

Additionally, DeClue administered the Woodcock Johnson test to Floyd to assess his language and reading comprehension skills. DeClue testified that, based on the test results, Floyd can read at a second or third grade level. DeClue stressed that these results indicate Floyd cannot communicate at the complex level an average adult can.

DeClue also administered the Gudjonsson Suggestibility Scale to determine Floyd's levels of suggestibility and compliance. DeClue found that relator displayed a high level of suggestibility, and that Floyd's “self-reported description was that he's more compliant than the average person.” DeClue testified that people classified as mentally retarded are 10 times more likely to give a false confession, that in many false confession cases, the confessor included details of the crime scene presumed to be known only by the police and the perpetrator.

Although mental retardation or illiteracy, alone, do not prevent a person from being able to knowingly and intelligently waive his rights, this Court has held that a mentally retarded 17–year–old with an IQ between 50 and 69 was not able to understand his rights and was incapable of knowingly and intelligently waiving his Miranda rights, and thus his confession should have been suppressed.

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Reference to “God forgiving the suspect” did not render the confession involuntary

In the case Harden v. State, (April 2011) the Supreme Court of Mississippi upheld the lower court’s decision to find the defendant’s confession voluntary.  In their opinion the Supreme Court relates the following:

“In the audiotaped confession, Harden repeatedly denied that anything had happened with L.Q., before he finally confessed. Detective Zacharias told Harden that he was aware Harden was under a lot of pressure; Harden cried and stated that he might as well be dead. Detective Zacharias told Harden that as humans “we all make mistakes,” have “weaknesses” and “at some point we all as men [must be] willing to step up to the plate and accept responsibility.” The following exchange occurred:

Q: Do you believe in God?

A: Yeah, I believe in God.

Q: Okay, do you believe God forgives all?

A: Yeah, He forgives all.

Q: He does forgive all, doesn't He? No matter what your sins are, he forgives you doesn't He? But do you not also have to accept responsibility, as hard as it is for you right now? As a man, you need to step forward and accept forgiveness. But that forgiveness is not given easily. You have to meet half-way don't you? Right? And the only way is for you to accept responsibility, for you to admit your weakness ...

Detective Zacharias also told Harden that, if he did not confess, the truth would come out through the investigation. Detective Zacharias said he would have L.Q. examined, collect the clothes she wore, and have them tested for the presence of Harden's seminal fluid. Then, Detective Zacharias said, Harden would not be able to say nothing had happened. At the conclusion of the twenty-seven-minute interview, Harden admitted that he had had sex with L.Q.

The trial court found that Harden's statement was voluntary. The trial court noted Detective Zacharias's testimony that Harden had been emotional, that he had understood what was being asked, and that he had understood his rights. The trial court held that the statements regarding religion did not amount to coercion. The court found that there was nothing to indicate Harden did not understand what was going on, that he had a particular susceptibility to religious matters, or that he was overcome due to a lack of mental capacity.”

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There is no expectation of privacy for phone calls in police interview room

In the case, Napper v. US, (June 2011) the District of Columbia Court of Appeals upheld the lower court decision to admit statements that the defendant made during cell phone calls while he was in the police interview room.  In one call the defendant stated, “, “[T]ell everybody they hip. These mother* * *ers know every [ ]. When I say everything, everything.”  In another call he said, Tell everybody they know everything. I think Ray snitched.”  

“In his motion to suppress, appellant argued that Detective Russell–Brown had “lulled [him] into thinking his conversations would be private and confidential” by informing him that their conversation was not being recorded. As a result, appellant argued, he had both a subjective and an objectively reasonable expectation of privacy in the interview room. He argued in addition that the phone calls qualified as “oral communications” under the wiretapping statute, and that the police unlawfully “intercepted” them. The trial court denied appellant's motion to suppress in a bench ruling, finding that appellant “knew that he was being recorded.” In subsequently issued supplemental findings of fact and conclusions of law, the trial court found that the interaction between appellant and the detective regarding the polygraph machine was focused on that particular equipment, and “did not constitute an assurance that [appellant] enjoyed a private sanctuary for telephone calls.”  The court also found that appellant did not exhibit an actual, subjective expectation of privacy, but “[i]n fact, his actions exhibited the contrary,” demonstrating that he “obviously understood that he faced the prospect of surveillance” and “was openly trying to avoid it.” The court further found that appellant “did not have a reasonable expectation of privacy that society is prepared to recognize,” noting that “the unique function and nature of areas controlled by the police mean that courts generally do not recognize a legitimate expectation of privacy in such places.”

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