Legal Update Spring 2013
Counsel was not ineffective for failing to present testimony of false confession expert
In Johnson v. State (2012) the Supreme Court of Florida found that “trial counsel was not ineffective for failing to present testimony of expert in coerced confessions.” In their opinion the Supreme Court stated, “Moreover, attorney Hockett testified that the decision not to call Dr. Ofshe at trial was a strategic choice predicated on the fact that the defense had sufficiently preserved a challenge to the admission of Johnson's confession through Dr. Ofshe's testimony at the suppression hearing and that the defense felt that repeating a week's worth of detailed testimony on that issue would not be helpful at trial. Additionally, the record shows that Dr. Ofshe's testimony would have contained information detrimental to Johnson's defense, such as Johnson's admission to Dr. Ofshe that Johnson had manipulated other experts and doctors in an attempt to establish mental incapacity.” Click here for the complete decision.
Military Appeals Court upholds decision to exclude testimony of false confession expert – Dr. Christian Meissner
In US v. Bell (March 2013) the U.S. Army of Criminal Appeals upheld a lower court’s decision to exclude the testimony of Dr. Christian Meissner, stating that, “The defense counsel did not provide any evidence that the appellant was unusually susceptible to coercion or had any abnormal mental or emotional problems that might make him more vulnerable to confessing falsely. The military judge found the defense could not articulate exactly what Dr. Meissner could do for the defense theory, and characterized the use of the expert as akin to a “fishing expedition.” Click here for the complete decision.
Human Lie Detector evidence
In US v. Knapp (March 2013) the U.S. Air Force Court of Criminal Appeals stated that, “The appellant contends on appeal that the prosecution improperly offered testimony from Agent P that he could tell appellant was acting in a deceitful and untruthful manner when discussing the sexual intercourse because (1) the appellant would not make eye contact, (2) large red blotches would appear on his face, and (3) his commentary became less detailed. He also argues the military judge should have provided a curative instruction to the members on their use of this testimony. When we put the challenged testimony in context and consider the seven factors found in Jones, we do not find its admission to be prejudicial error.” Click here for the complete decision.
Recording interrogations not required in Pennsylvania; false confession expert testimony excluded
In Commonwealth v. Harrell (April 2013) the Superior Court of Pennsylvania found that the state constitution does not require the recording of interrogations, stating that, “In… this court held that custodial interrogations do not need to be recorded to satisfy the due process requirements of the Pennsylvania Constitution…. The majority of states, with the exception of Alaska and Minnesota, have not adopted a rule requiring police to record interrogations… Nor has the United States Supreme Court been asked to determine whether the United States Constitution requires the recording of custodial interrogations as a matter of federal due process… This court determined that the Pennsylvania Constitution does not require contemporaneous recording of statements and that the adoption of a rule requiring contemporaneous recording of custodial interrogation should be left to the Pennsylvania Supreme Court or the General Assembly, not an intermediate appellate court.”
In this same case, regarding the testimony of a false confession expert, the court stated the following:
“Recently, …. we upheld the trial court's denial of the defendant's request to call Dr. Debra Davis, an expert in the field of false confessions:
[I]f the expert is only testifying generally about the fact that false confessions happen, that is well within the grasp of the average layperson and expert testimony would not be required under Rule 702. The components of a false confession, according to Dr. Davis, include factors such as the interrogation tactics employed, the training of the law enforcement personnel involved, and the stress tolerance of the suspect. This [c]ourt found that testimony concerning these factors can be elicited (and attacked) through the testimony of other witnesses and is capable of being understood by the average juror. The jury can then make its own determination as to the weight afforded to the defendant's confession. Therefore, Dr. Davis' testimony was not proper because expert testimony is inadmissible when the matter can be described to the jury and the conditions evaluated by them without the assistance of one claiming to possess special knowledge upon the subject.
Similarly, here, in addition to identifying various problems with Dr. Ofshe's methodology, the trial court opined that the issue of false confessions was not beyond the ken of the average layperson:
First, the Court is not convinced that any specialized knowledge is required for jurors to understand the proposition that a person possessing any of a number of unique factors (mental disability, fatigue, hunger, tender age, propensity toward acquiescence to authority figures etc.) may be more susceptible to police interrogative techniques. Further, the jurors would certainly be able to evaluate any evidence or arguments presented at trial by the defense to advance a theory that the conditions of [appellant]'s interrogation, the techniques used by police, or the personal characteristics of [appellant] had an impact on the veracity or voluntariness of [appellant]'s confession without the assistance of the proffered expert testimony. If anything, the testimony could confuse the issue by suggesting causal relationships which are not borne out by the research actually conducted….. We agree and find that the trial court did not abuse its discretion by precluding Dr. Ofshe's testimony.” Click here for the complete decision.
Circumstances that indicate juvenile interrogation was not custodial
In Commonwealth v. Bermudez (December 2012) the Appeals Court of Massachusetts upheld the lower court’s decision that the interrogation of a juvenile was not custodial. The court stated, “Applying these factors to the facts found by the judge and the objective circumstances depicted in the interrogation videotape, we conclude that the defendant's interrogation was not custodial. Although the interrogation occurred at the police station, the defendant appeared there voluntarily, accompanied by his mother, in response to a police request. He was neither under arrest nor escorted to the station by the police. The interrogation lasted seventy minutes, and the defendant sat next to the door throughout the interview. One of the two interviewing officers left the room from time to time, and the other sat across from the defendant behind a desk next to a computer. The questioning was conversational and nonthreatening in tone, and the detectives repeatedly told the defendant, who was not handcuffed or restrained in any way, that he would be allowed to return home with his mother, as he ultimately was. The defendant's age, a few months shy of his eighteenth birthday, placed him on the cusp of majority, and far removed from the tender years of early adolescence. Viewing all the pertinent factors objectively, including the defendant's age at the time of the interview, we conclude that the interrogation was not custodial so as to require Miranda warnings.” Click here for the completed decision.
Colorado Supreme Court abandons the corpus delicti rule and puts in its place, the trustworthiness standard
In People v. LaRosa (February 2013) the Supreme Court of Colorado reached the following decision:
“This case requires us to decide whether to abandon our judicially created corroboration requirement, the corpus delicti rule, and with it over one hundred years of precedent. If we abandon the corpus delicti rule, then we must decide another issue: what corroboration requirement, if any, to articulate in its place. The People argue that we should abandon the corpus delicti rule in favor of the trustworthiness standard, which requires corroborating evidence that proves that a confession is reliable, or, in the alternative, the sufficiency of the evidence test, which requires no corroborating evidence. Instead, the sufficiency of the evidence test would treat confessions like any piece of evidence to be analyzed in the light most favorable to the prosecution during a motion for a judgment of acquittal.
We abandon the corpus delicti rule because we hold that sound reasons exist for doing so. In its place, we articulate the trustworthiness standard, which requires the prosecution to present evidence that proves that a confession is trustworthy or reliable. To determine whether corroborating evidence proves the trustworthiness or reliability of a confession, we hold that the trial court must find that corroboration exists from one or more of the following evidentiary sources: facts that corroborate facts contained in the confession; facts that establish the crime which corroborate facts contained in the confession; or facts under which the confession was made that show that the confession is trustworthy or reliable.” Click here for the complete decision.
Illinois Supreme Court also addresses the corpus delicti rule
In People v. Lara (October 2012) the Illinois Supreme Court addressed the issue of whether or not the appellate court improperly expanded the corpus delicti rule to require independent evidence corroborating every element of the specified offense before a defendant's statement could be used to prove the corpus delicti of the offense. The Supreme Court stated:
The corpus delicti of an offense is simply the commission of a crime. Along with the identity of the person who committed the offense, it is one of two propositions the State must prove beyond a reasonable doubt to obtain a valid conviction. In general, the corpus delicti cannot be proven by a defendant's admission, confession, or out-of-court statement alone. When a defendant's confession is part of the corpus delicti proof, the State must also provide independent corroborating evidence.
To avoid running afoul of the corpus delicti rule, the independent evidence need only tend to show the commission of a crime. It need not be so strong that it alone proves the commission of the charged offense beyond a reasonable doubt. If the corroborating evidence is sufficient, it may be considered, together with the defendant's confession, to determine if the State has sufficiently established the corpus delicti to support a conviction.
The primary purpose of the corpus delicti rule is to ensure the confession is not rendered unreliable due to either improper coercion of the defendant or the presence of some psychological factor. … Unless a confession cannot be sufficiently corroborated to fulfill this purpose, it remains one stick in the evidentiary bundle the trier of fact may use in deciding whether the State has met its burden of proving beyond a reasonable doubt that the defendant committed the charged offenses. Setting the bar too high for finding sufficient corroboration of a defendant's confession under the corpus delicti rule would intrude on the scope of the fact finder's exclusive duties. As long as the confession is reasonably reliable, consideration of it and all the other evidence properly admitted at trial falls within the domain of the trier of fact.
By not requiring corroboration of every element, or any one particular element, our interpretation of the corpus delicti rule supports the fact finder's role. Simultaneously, it permits the trial court to perform its proper legal function of ensuring the legal sufficiency of the corroborating evidence presented by the State because the corroboration must still “tend [ ] to connect the defendant with the crime” Defendant's reading of the rule would bar the use of a confession if the details relating to the elements of the offense did not completely align with the confession, contradicting our determination in Furby that “every detail need not correspond.” … Consequently, we reject any interpretation that would partially usurp the fact finder's exclusive responsibilities to evaluate the credibility of the witnesses, weigh the conflicting evidence, and draw appropriate inferences from the evidence.
Accordingly, consistent with our precedents, we hold that the corpus delicti rule requires only that the corroborating evidence correspond with the circumstances recited in the confession and tend to connect the defendant with the crime. The independent evidence need not precisely align with the details of the confession on each element of the charged offense, or indeed to any particular element of the charged offense.” Click here for the complete decision.
How much corroboration is needed to support the trustworthiness of a confession?
In the case, In re K.A., Appellant (February 2013) the District of Columbia Court of Appeals addressed the issue of corroboration, stating, in part, the following:
In confession cases, this jurisdiction has long followed the United States Supreme Court's corroboration rule, explained in decisions issued on the same day…… The rule, which “is intended ‘to forestall convictions based on extrajudicial confessions the reliability of which is a matter of suspicion,’ …. “requires ‘the Government to introduce substantial independent evidence which would tend to establish the trustworthiness of the statement’ before a confession can be submitted to the jury and can sustain a conviction….”
It is hard to say precisely what quantum of independent evidence is “substantial” enough to support a conviction, as “the amount and kind of evidence needed to corroborate a confession will depend upon the facts of each case.” … That case and others… make clear that the amount of independent evidence required to satisfy the corroboration rule depends in part on the circumstances under which the confession was made and any indication that the confession might be false.
In examining “the degree of corroboration required,” the court…. found it useful to examine, as a “threshold matter,” the voluntariness and coherence of the confession, whether it was made under trustworthy circumstances, and whether there were “signs that the confession was false.”
Turning to K.A.'s case, we apply the threshold analysis… and examine the circumstances of K.A.'s statements for signs of trustworthiness. While we assume K.A.'s statements were voluntary, his admission to possessing the guns bears hallmarks of a less than trustworthy confession. K.A. confessed after persistent questioning by a number of officers in a small apartment that, while a familiar environment, had been filled with police officers for nearly an hour and a half. The officers repeatedly made clear that they were willing to arrest K.A.'s grandfather, despite his illness and even though they did not believe the guns were his. K.A.'s confession came in a conclusory statement—“Man, they my guns. Take those things off him”—that explicitly revealed an ulterior motivation to keep his ailing grandfather from being arrested.