Legal Updates Summer 2014

Legal Updates Summer 2014

Investigator’s statement that felony murder would receive a lesser sentence than premeditated murder did not render confession involuntary

In State v. Turner (May 2014) the Nebraska Supreme Court held that misinformation by police officers during the defendant’s interview that felony murder would receive a lesser sentence than premeditated murder did not overcome defendant's will so as to render his confession involuntary based on purported promises of leniency. From the court’s opinion:

“Turner argues that his confession was involuntary because it was induced by an implied promise that he would receive a lesser sentence if he confessed that the shooting was accidental. As evidence of this implied promise, he points to Ficenec's statements that it made “a big difference” how and why the shooting occurred and to Krause's statement that the possible penalty could be 1 to 10 years' imprisonment if the shooting was accidental. He claims that these statements constituted an implied promise of leniency which overcame his will and caused him to confess. He further argues that the officers' statements were deceptive because first degree murder encompasses felony murder—which does not require a showing of malice, intent, or premeditation.

Turner is correct in his assertion that the officers deceived him during the course of the interview at the parole office. Ficenec's statements as to there being “a big difference” how and why the shooting occurred, and specifically Krause's statement that Turner could get 1 to 10 years' imprisonment if the shooting was accidental, incorrectly indicated that felony murder would receive a lesser sentence than premeditated murder…

… We have previously noted that a deceptive statement regarding possible sentences is only one of several factors to be considered. In State v. Thomas, we determined that the defendant's confession was voluntary and not caused by misinformation regarding possible sentences due to the presence of three factors. These factors included that (1) the officers returned to previous themes between the discussion of possible penalties and the defendant's confession, (2) the defendant indicated a knowledge that he could receive life imprisonment for the crime both before and after his confession, and (3) the confession occurred after an officer indicated that he did not know what sentence would be imposed.

... As in Thomas, Turner's confession did not follow the discussion in which the officers misrepresented that a lesser sentence would be imposed for felony murder. Rather, his confession was immediately preceded by the officers' return to the prior theme of Turner not being a bad, evil person; Krause's exhortation to “do the right thing”; and the colloquy regarding Turner's belief in God and the fate of his soul. Thus, the dialog immediately preceding Turner's confession supports the conclusion that his confession was primarily motivated by remorse and a desire to do the right thing—not to receive a lesser sentence.

As to the second factor we identified in Thomas, Turner indicated both before and after his confession that he was aware he could receive a sentence of life imprisonment. Before Turner confessed at the parole office, he stated, “Man, I'm going to get life for this shit.” And after he confessed and was transferred to the police department, Turner stated to Coleman, “I'm about to get like, life.” Thus, this factor indicates that Turner did not believe his confession precluded him from receiving life imprisonment.

Finally, like the defendant in Thomas, Turner confessed after officers stated that they did not know what sentence would be imposed. In response to Turner's statement, “I'm going to get a hundred years,” Ficenec replied, “I can't tell you what the potential penalty could be. I mean I'm not going to bullshit you. Could you potentially get life? Is that a possibility? I mean, I'm not a judge, I'm not a prosecutor.” And during the colloquy immediately preceding Turner's confession, Krause stated, “I don't know, okay?” in response to Turner's assertion that he “might be in jail for a long-ass time.” Thus, although they incorrectly indicated that felony murder would receive a lesser sentence, the officers made no representations as to what sentence Turner would receive if convicted. This factor supports the conclusion that Turner's confession was not motivated by a belief that he would receive a particular sentence.

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Video of interrogation demonstrates that juvenile did not make a knowing and intelligent waiver of his rights

In re J.M., a Minor (People v. J.M.) (April 2014) the Appellate Court of Illinoisfound that “J.M.'s youth, his mental deficiencies, the DVD which shows not only his inability to read his rights, but also his trust in Jany and Vespa despite their intention to get a statement to use against him, and Dr. Cuneo's credible, expert testimony, we find that the trial court's decision that respondent knowingly and intelligently waived his Miranda rights is against the manifest weight of the evidence.”

In their opinion the court stated the following: “The critical test used in determining whether an accused knowingly and intelligently waived his or her rights is whether the words in the context used, considering the age, background, and intelligence of the individual being interrogated, convey a clear and understandable warning of all his or her rights… Whether a waiver is knowing and intelligent is determined by the particular facts and circumstances of each case, including the defendant's background, experience, and conduct… Illinois courts have long recognized that a defendant's mental capacity at the time of the alleged waiver must be considered in determining whether his or her actions were knowing and intelligent, and while mental deficiency alone does not render a statement unintelligent, it is a factor that must be considered

Moreover, our supreme court has specifically stated that “[t]he greatest care must be taken to assure that a juvenile's incriminating statement was not the product of ignorance of rights or of adolescent fantasy, fright or despair.”… In addition, our supreme court has explicitly stated that care must be taken with defendants who are mentally deficient due to the following:

“[I]t is generally recognized that the mentally retarded are considered more susceptible to police coercion or pressure than people of normal intellectual ability, they are predisposed to answer questions so as to please the questioner rather than to answer accurately, they are more likely to confess to crimes they did not commit, they tend to be submissive, and they are less likely to understand their rights.” ….

Therefore, when dealing with a mentally deficient juvenile, extreme care must be used to assure that he knowingly and intelligently waived his rights.

… J.M. was also 13 years of age; however, his mental capacity was that of a 7–year–old. His IQ was either 54 or 56, which, … puts him in the mild mentally retarded range. J.M. also attended special education classes and was unable to explain the meaning of the word “silent” with regard to the first Miranda warning. Additionally, an expert testified that J.M. did not knowingly and intelligently waive his Miranda rights.

Here, Dr. Cuneo evaluated J.M. on two separate occasions: first, to determine whether J.M. was fit to stand trial and, second, to determine whether he could knowingly and intelligently waive his Miranda rights. Dr. Cuneo specifically found that J.M., who only reads at a first-grade level and who was intellectually in the bottom .04% of the population, was incapable of reading or understanding his Miranda rights. Our own review of the videotaped statement contained on the DVD shows that J.M. was incapable of reading his rights.

J.M. could not even read the word “silent” in the first warning. The DVD shows that after J.M. had trouble reading the word “silent,” Officer Jany took over and read him his rights, trying to explain them along the way. Jany also told J.M. that J.M.'s mother was outside and she just hoped J.M. would be honest. After Jany read J.M. each of his rights, he told J.M. to initial and then sign the form. J.M. complied. Even though J.M. said he watched rights being given on television and had been read his rights “at the other station” on a different occasion, our review of the DVD does little to alleviate our concerns that J.M. did not fully appreciate that it was the State's intention to use his statement to secure a conviction against him or that he had the right to stand mute and request a lawyer. Instead, it appears to us that J.M. was compliant and wanted to please the officers, which, as previously discussed, is common among those suffering a mental deficiency.”

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Confession rendered involuntary when defendant told he could not get a fair trial because of his race

In Bond v. State (May 2014) the Indian Supreme Court ruled that the defendant’s confession was rendered involuntary by statements from the detective that due to the fact the defendant was African American he might not receive a fair trial.

From the court’s opinion: “But with respect to the detective's statement that Bond might not receive a fair trial because of his race and the likely composition of a prospective jury, our sentiment goes beyond the trial court's “great concern” and the Court of Appeals majority's disapproval of it as being “inappropriate.” This is not a police tactic that we simply “do not condone” because it is deceptive. Instead, this was an intentional misrepresentation of rights ensconced in the very fabric of our nation's justice system—the rights to a fair trial and an impartial jury, and the right not to be judged by or for the color of your skin—carried out as leverage to convince a suspect in a criminal case that his only recourse was to forego his claim of innocence and confess. And like Judge Kirsch, we condemn it.

… in this case Bond was intentionally deceived as to the fairness of the criminal justice system itself because of the color of his skin. Regardless of the evidence held against him or the circumstances of the alleged crime, he was left with the unequivocal impression that because he was African American he would spend the rest of his life in jail. Unless he confessed. And in unfortunate days gone by, this might have been the case. But no one wants to go back to such a time or place in the courtroom, and so we will not allow even the perception of such inequality to enter the interrogation room.

Thus, in considering the totality of the circumstances surrounding Bond's interrogation, despite the otherwise permissible conduct by the detective, and despite Bond's apparent maturity, health, education, and the favorable conditions of the interrogation, this deception by the detective tips the scale to involuntariness.”

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Pennsylvania Supreme Court finds that expert testimony of the issue of false confessions would impermissibly invade the province of the jury

In Commonwealth v. Alicia (May 2014) the Supreme Court of Pennsylvania held that expert testimony on the phenomenon of false confessions would impermissibly invade the jury's exclusive role as the arbiter of credibility. From the court’s decision:

“Although this Court has not previously ruled on the admissibility of expert testimony concerning false confessions, courts in other jurisdictions have done so. Many have held such testimony inadmissible. For example, in United States v. Benally, 541 F.3d 990, 993 (10th Cir.2008), the Tenth Circuit Court of Appeals upheld a district court's refusal to admit a psychologist's expert testimony concerning whether false confessions occur, and if they do occur, why they occur. The defendant-appellant had testified that his confession was false and claimed that it had been prompted by federal agents' coercive tactics. Id. In rejecting the defendant-appellant's proffered expert testimony, the Tenth Circuit held as follows:

[The psychologist's expert] testimony inevitably would encroach upon the jury's vital and exclusive function to make credibility determinations. While [the defendant-appellant] emphasizes that [the psychologist expert] would not have opined as to whether she believed [that he had] confessed falsely, with or without the opinion, the import of her expert testimony would be the same: disregard the confession and credit the [defendant-appellant's] testimony that his confession was a lie. Testimony concerning credibility is often excluded because it usurps a critical function of the jury and because it is not helpful to the jury, which is capable of making its own determination regarding credibility.

In United States v. Jacques, 784 F.Supp.2d 59, 60 (D.Mass.2011), a district court declined to admit the defendant's proffered expert testimony concerning the existence of false confessions generally and the features of the defendant's specific interrogation that allegedly increased the risk of a false confession. Citing Benally, supra, the court concluded, inter alia, that the proffered expert testimony was contrary to the well-established rule that an expert cannot offer an opinion as to a criminal defendant's guilt or innocence: “An opinion that a defendant's [confession] is unreliable cannot be logically disconnected from the implicit opinion that the defendant is, in fact, not guilty.” Jacques, supra at 63 (emphasis in original)…See also Brown v. Horell, 644 F.3d 969, 978, 982–83 (9th Cir.2011) (in denying a petition for habeas corpus, upholding the exclusion of expert testimony as to interrogation methods that tend to produce false confessions, where the trial court had concluded that the defendant's explanation for his allegedly false confession, to wit, a threat of violence against another person, was within the jury's experience); State v. Free, 351 N.J.Super. 203, 798 A.2d 83, 95–96 (N.J.Super.App.Div.2002) (holding that the trial court abused its discretion in admitting expert testimony as to false confessions and interrogation techniques because, inter alia, it was not scientifically reliable, it was of no assistance to the jury, and the jury would recognize that coercive methods have the potential for causing a false confession).

After careful review of relevant opinions from courts of other jurisdictions, as well as our own precedent, we are not persuaded by the rationale of those courts that have admitted expert psychological/psychiatric testimony regarding the phenomenon of false confessions and police interrogation techniques. Rather, we conclude, in agreement with the Tenth Circuit Court's decision in Benally, supra at 995, that expert testimony such as the proposed testimony of Dr. Leo constitutes an impermissible invasion of the jury's role as the exclusive arbiter of credibility.”

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Value of recording: Video of interrogation contradicts defendant’s claims

In People v. Kronenberger (March 2014) the Appellate Court of Illinois, First District, First Division, upheld the lower court’s decision to admit the defendant’s confession, relying on the videotape of the interrogation to discredit the defendant’s claims.

From the court’s opinion: “The defendant makes a number of arguments that his videotaped confession to the police was given involuntarily, because the interrogation techniques used by police detectives to obtain it included repeated threats, coercion and deception. Such repeated threats and coercion, he asserts, precluded him from voluntarily waiving his Miranda rights or otherwise voluntarily providing a statement. He further contends that certain comments made by the detectives, to the extent that they contradicted and undermined his right to remain silent and right to counsel, nullified the Miranda warnings provided to him. Specifically, he points to comments made by the detectives during interrogation, such as “your silence speaks volumes here. Your silence is making you a dirty gang banging [expletive],” “[you will] swing for this,” and “the only [expletive] way you're going to get any of us out of here is to [expletive] tell us what happened.”

Viewing the complained-of statements in context of the entirety of the interrogation, we find that the first two quoted remarks by the detectives did not undermine or conflict with his right to silence, as the defendant suggests. These two remarks, when viewed in context, show the detectives' explanation to the defendant that the only version of the events that the police possessed came from Emil's father, Edward, who had placed all of the blame for the crime on the defendant. Indeed, our review of the videotaped interrogation reveals that the detectives repeatedly tried to convince the defendant to tell “the truth,” to tell his “story,” to take this opportunity to “flip the script,” to “help” himself, and to not let others tell his side of the “story,” while the defendant repeatedly lamented over the seriousness of the situation by making statements that it was a “lose-lose situation,” and that he was “[expletive],” “done,” going to get “locked up,” “going to jail,” and that his “future” was “gone.” Nor do we find any of the statements to be a nullification of the Miranda warnings provided to him.