In US v. Preston (May 2014) the US Court of Appeals the court stated, "Today we consider the voluntariness of a confession given by Tymond Preston, an intellectually disabled eighteen-year-old. To elicit this confession, the police, among other tactics, repeatedly presented Preston with the choice of confessing to a heinous crime or to a less heinous crime; rejected his denials of guilt; instructed him on the responses they would accept; and fed him the details of the crime to which they wanted him to confess. Under the totality of the circumstances, including Preston's intellectual disability, we conclude that the confession that resulted from this questioning was involuntarily given and should not have been admitted at trial."

From their opinion the court stated:

Preston was eighteen, with an IQ of sixty-five. The two officers realized early in the interrogation that Preston suffered some sort of intellectual disability, as his initial responses gave them cause to believe that he had an impairment. They therefore inquired directly if he was "disabled." Preston did not understand the word "disabled," and so asked its meaning. That he had to ask for an explanation of a common word itself suggests the extent of his cognitive impairment. After the officers explained the word's meaning, Preston agreed that he was disabled, elaborating that he was not able to complete his schooling as a result.

Summarizing the evidence regarding how the intellectually impaired respond to contemporary police interrogation methods, several scholars have listed "seven common characteristics" of such people, including (1) "unusual[ ] susceptib [ility] to the perceived wishes of authority figures"; (2) "a generalized desire to please"; (3) difficulty "discern[ing] when they are in an adversarial situation, especially with police officers," who they generally are taught exist to provide help; (4) "incomplete or immature concepts of blameworthiness and culpability"; (5) "[d]eficits in attention or impulse control"; (6) "inaccurate views of their own capacities"; and (7) "a tendency not to identify themselves as disabled" and to "mask[ ] their limitations ."

"[A]s interrogators have turned to more subtle forms of psychological persuasion," and away from physical coercion, "courts have found the mental condition of the defendant a more significant factor in the 'voluntariness' calculus." ... It simply "takes less" in terms of sophisticated police interrogation techniques "to interfere with the deliberative processes of one whose capacity for rational choice is limited than it takes to affect the deliberative processes of one whose capacity is not so limited."

Among the police tactics used here were several recommended by a manual on police interrogation, see Fred E. Inbau, John E. Reid, Joseph P. Buckley & Brian C. Jayne, Criminal Interrogation and Confessions (5th ed. 2013) ("Reid manual"), from which both the officers who interrogated Preston were trained. The officers, however, sometimes disregarded the manual's cautions about the tactics they used.

For example, using one of the recommended approaches, the two officers asked Preston a number of questions that presented him with two alternatives as to how the crime was committed. See id. at 293-303. "Both alternatives are highly incriminating, but they are worded in such a way that one alternative acts as a face-saving device whilst the other implies some repulsive motivation." Gudjonsson, supra, at 19. In this instance, Preston was asked to choose, for example, whether he was a monster--a sexual predator who repeatedly preys on children--or if the abuse of the child was a one-time occurrence.

These questions were derived from similar exemplars in the Reid manual. Reid manual, supra, at 296-97, 298. The manual, however, suggests that the inculpatory alternatives technique recommended may be unduly coercive when used for suspects of seriously impaired mental ability: it trains agents in the alternative questioning method with the understanding that "no innocent suspect, with normal intelligence and mental capacity, would acknowledge committing a crime merely because the investigation contrasted a less desirable circumstance to a more desirable one and encouraged the suspect to accept it." Reid manual, supra, at 303 (emphasis added). The psychological evidence regarding Preston's intellectual disabilities confirms this assessment by indicating that he is confused by complexity, abstraction, and multiplicity, and likely to acquiesce in suggestions made by the questioner. As a result, recognizing that where one is asked "a or b," one can answer "neither one," rather than acquiescing in one or the other, could well have exceeded his intellectual abilities.

The agents coupled the techniques of alternative questioning, providing suggestive details, and repetitious and insistent questions with other techniques that the Reid manual specifically cautions against. The Reid manual specifically warns that the questioning "should not be, in any way, based on leniency if the more understanding alternative question is accepted." Reid manual, supra, at 300 (emphasis added). It also cautions that when questioning people of low intelligence, investigators should avoid offering promises of leniency or using deceptive interrogation techniques due to the vulnerability of this group. Id. at 332-33, 352, 429.

Assuredly, interrogating officers can make false representations concerning the crime or the investigation during questioning without always rendering an ensuing confession coerced. ..... But false promises stand on a different footing. In particular, the Supreme Court has observed that "the test of voluntariness" is "whether the confession was extracted by any sort of threats or violence, or obtained by any direct or implied promises, however slight, or by the exertion of any improper influence."

The types of deception used here, which primarily related to considerations extrinsic to the suspect's guilt or innocence, are particularly problematic when used on a person with an intellectual disability. Intrinsic falsehoods, which relate to the facts of the crime itself or of the investigation--such as falsely informing a suspect that the victim had survived and identified the suspect--do "not lead [the suspect] to consider anything beyond his own beliefs regarding his actual guilt or innocence, his moral sense of right and wrong, and his judgment regarding the likelihood that the police had garnered enough valid evidence linking him to the crime." .... But here, the police did not simply inflate the amount of incriminating evidence against Preston. Instead, they suggested falsely that if he confessed, his admissions would not be used against him--he could "move on" after apologizing to the child, rather than being punished. This approach "interject[ed] the type of extrinsic considerations" more likely to "distort[ ] an otherwise rational choice of whether to confess or remain silent." .... The intellectually disabled are more susceptible to such extrinsic deception tactics.

Accordingly, we conclude that the district court erred in admitting Preston's confession.