Legal Update 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.
Click here for the complete decision.
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.” Click here for the complete decision.
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.”
Click here for the complete decision.
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."
Click here for the complete decision.
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.”).
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.” Click here for the complete decision.
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. Click here for the complete decision.
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],…”
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. Click here for the complete decision.
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.”
Click here for the complete decision.
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.”