What Is a Jackson-Denno Hearing?

What is a Jackson-Denno Hearing?

Jackson v Denno refers to a hearing that determines if a confession or statements made by a defendant were given involuntarily and so should be suppressed as evidence.

The reason we do it:

In Jackson v. Denno, the United States Supreme Court said that the due process clause of the Fourteenth Amendment requires the trial judge to determine that a confession was voluntary before permitting the jury to hear it.

In Georgia, it has been stated that a defendant is not entitled to a Jackson-Denno hearing unless the defendant challenges the confession as not having been voluntarily made.

When a defendant does challenge the voluntariness of his statement what follows?

At the hearing, the State first introduces its evidence to show voluntariness.
The defendant then is entitled to introduce rebuttal evidence.

In the absence of a valid waiver, a defendant is entitled to be present at a Jackson-Denno hearing.

The defendant may testify if he wishes but the courts cannot call him as a witness.

The Georgia Court of Appeals held that if a defendant does testify at a Jackson v. Denno hearing, the testimony is admissible at the trial of the case for purposes of impeachment and as substantive evidence.

If a defendant testifies that he did not understand his Miranda warnings which were given to him, on cross-examination he may be asked if he has ever been advised of his Miranda warning before if there is a factual basis for the question.

A defendant is entitled to have all witnesses testify at the Jackson-Denno hearing who were present when a confession was given; otherwise the defendant is denied his right to fully investigate all the circumstances surrounding the confession.

A trial judge has discretion to re-open the evidence at a Jackson-Denno hearing to hear testimony from another witness.

The trial judge must be satisfied by a preponderance of the evidence that the confession was freely and voluntarily given and, where Miranda applies, that the defendant knowingly and intelligently waived his Miranda warnings.

The judge must rule that he will admit or reject the confession for the consideration of the jury. The judge’s failure to make a preliminary finding as to voluntariness before submitting the confession to the jury violates the defendant’s Fourteenth Amendment rights.

What is the judge supposed to consider in deciding the issue at a Jackson-Denno hearing?

The “totality of the circumstances” test applies in determining whether or not a confession was freely and voluntarily given.

The Georgia Supreme Court has said that it is proper to consider the following factors in determining whether the “totality of the circumstances” test has been met:

The age of the defendant.
The defendant’s education.
The knowledge of the defendant as to both the substance of the charge and the nature of his right to consult an attorney and his right to remain silent.
Whether the accused is held incommunicado or allowed to consult with relatives, friends or an attorney.
Whether the accused was interrogated before or after formal charges had been filed.
Methods used in interrogation.
Length of interrogation.
Whether or not the accused refused to voluntarily give a statement (s) on (a) prior occasion (s); and
Whether the accused repudiated the extrajudicial statement at a later date.

1. AGE OF THE DEFENDANT

A confession from a juvenile is “scanned with more care and received with greater caution” than that of an adult.

The provisions of O.C.G.A. 15-11-47 apply to a confession by a juvenile even when the juvenile is tried as an adult. This statute provides in part as follow: “A person taking a child into custody, with all reasonable speed and without first taking the child elsewhere, shall:

Forthwith release without bond the child to the child’s parents.
Bring the child immediately before the juvenile court or promptly contact a juvenile court intake officer. The intake officer shall determine if the child should be released or detained.
Prior to an informal detention hearing, the child shall be placed in detention, if necessary, only in such places as are authorized by Code Section 15-11-48; or
Bring the child who is suspected of committing a delinquent act before the superior court of the county where the delinquent act occurred if the act is an act over which the superior court has exclusive or concurrent jurisdiction.

The person taking a child into custody shall promptly give notice thereof, together with a statement of the reason for taking the child into custody, to a parent, guardian, or other custodian and to the court.

Any temporary detention or questioning of the child necessary to comply with this Code section shall conform to the procedures and conditions prescribed by this article and rules of court.

O.C.G.A. 15-11-7(b) provides in part that “{a}n extrajudicial statement obtained in the course of violation of this article or one which would be constitutionally inadmissible in a criminal proceeding shall not be used against such child.

Any temporary detention or questioning of the child necessary to comply with this Code section shall conform to the procedures and conditions prescribed by this article and rules of court.

However, the statute “does not require that one or both parents, or other responsible adult, be present during the questioning of a minor.”

The foregoing provisions apply to both juvenile court proceedings and criminal cases. However, a confession is not to be automatically excluded if the provisions of the Juvenile Code are not complied with.

The Georgia Supreme Court pointed out that “the issue to be considered is whether there is a knowing and intelligent waiver by the defendant of his constitutional rights making the incriminating statements. If the defendant knowingly and intelligently waived his constitutional rights and voluntarily made the statement in question “it is not error for the trial judge to deny a motion to suppress the statement”.

The court pointed out that the requirements of O.C.G.A 15-11-47 are to be construed as directory and not mandatory.

What does this mean for you the interviewer?

The better practice would be to comply with the juvenile court rules in all instances unless there are circumstances that deem it necessary to deviate.

SPECIAL NOTE: While the statute “does not require that one or both parents, or other responsible adult, be present during the questioning of a minor”; Where it appears that a juvenile delegates to a parent or guardian the decision to proceed without counsel, any subsequent statement may be subject to suppression as not being knowing and voluntary.

SAMPLE CASES:

In Marshall v. State, the court affirmed the trial judge’s finding that a confession of a 14 year old juvenile was admissible. The defendant, after being arrested for murder, was taken first to the police station for booking and to obtain hair samples, rather than being handled as provided in O.C.G.A. 15-11-47. The court stated that this did not amount to a per se violation of the Juvenile Code. The juvenile was advised of his rights, and both he and his mother signed a waiver of rights form. After booking, he was taken to the YouthDevelopmentCenter for detention. The court pointed out that there is no requirement that one or both parents be present during questioning. The admissibility of such a confession from a juvenile is dependent upon the totality of circumstances.

In C.R.T. v State 148 Ga. App. 628, 1979, it was found that where the accused was clearly explained his rights, it did not matter that he was only 11 years old.

SPECIAL NOTE: The interrogation setting may lead to a finding of involuntary confessions in cases where young individuals are surrounded by several officers.

2. EDUCATION/MENTAL ABILITY OF DEFENDANT

A mere showing that one who confessed to a crime may have suffered from some mental disability in not a sufficient basis upon which to exclude a statement.

Lego v. Twomey, 404 U.S. 477

Mental illness or lack of education by itself will not lead to an involuntary confession. It is this {circumstance} mixed with coercive governmental conduct that will lead to suppression.

Colorado v Connelly, 479 U.S. 157 (1986)

Accused was found to have an IQ of 58 and a mental age of about 9 years old. His confession was found to be voluntary.

Goodwin v State, 236 Ga. 339 (1976)

Accused was found to have an IQ of 45 and a mental age of a 5 year old. His confession was found to be voluntary.

Farley v State, 145 Ga. App. (1958)

Statement made after right to invoke counsel was admissible if defendant was properly advised of his rights and initiated contact with law enforcement, even if the defendant possessed below average intelligence.

Height v. State, (2007)

3. KNOWLEDGE OF CHARGE

KNOWLEDGE OF RIGHT TO ATTORNEY

KNOWLEDGE OF RIGHT TO REMAIN SILENT

Although accused was not arrested or charged at the time of the interrogation, the police explained to him that the suspected crime was child molestation. They informed him of his Miranda Warning, including the right to remain silent and to consult with an attorney. Accused executed a written waiver of the rights. Such indicates accused had sufficient knowledge.

Stone v State, 271 Ga. App. 748 (2005)

Where an individual asserts his rights to counsel…..no more questions may be asked…..unless the accused initiates contact. Further questions make confession involuntary.

Solem v Stume, 465 U.S. 638 (1984)

4. HELD INCOMMUNICADO OR ALLOWED TO CONSULT WITH RELATIVES, FRIENDS OR AN ATTORNEY

A confession is considered involuntary when the accused is held incommunicado for entire incarceration, where relay interrogation is used, use of extended confinement with systematic interrogation, interrogation in places such as solitary confinement.

5. WAS DEFENDANT QUESTIONED BEFORE OR AFTER CHARGES MADE?

Where the time exceeds the normal interval between arrest and the ordinary administrative steps required to bring the suspect before the nearest available magistrate confession will likely be suppressed.

Mallory v U.S. 354 U.S. 449 (1957)

6. METHOD OF INTERROGATION

The police’s insistence that Stone tell the truth was appropriate.

Stone v State 271 Ga. App. 748 (2005)

Failure to allow a female suspect to use the restroom when no female officer is available doesn’t make statement involuntary if not done to compel statement.

U.S. v Marenghi 109 F. 3d 28 (1997)

Six officers questioned accused in shifts of two for around five hours. Accused was not allowed to see his lawyer or any family member. Court held that this was not voluntary.

Haley v Ohio 332 U.S. 596 (1948)

Actual or threatened physical violence, deprivation of food or sleep will all make a confession involuntary. Interrogators cannot directly or indirectly promise anything for a confession.

Brady v U.S. 397 U.S. 742 (1970)

7. LENGTH OF INTERROGATION

Where accused is interrogated for a period of time and steps are taken to ensure he is adequately provided with drink and access to restroom, and further he has right to see council and end interrogation when rights are asserted length is less of a factor.

Confessions were found involuntary where the period of time was around 5 straight hours of incommunicado interrogation.

Haley v Ohio 332 U.S. 596 (1948)

8. WHETHER OR NOT THE ACCUSED REFUSED TO VOLUNTARILY GIVE A STATEMENT (S) ON (A) PRIOR OCCASION

The subsequent statement must be sufficiently removed from the milieu of the coerced statement so as to preclude any lingering taint.

People v Overturf 67 Ill. App. 3d 741 (1979)

Where subsequent confession was taken twelve hours after first found to be voluntary.

Lyons v Oklahoma 322 U.S. 596 (1944)

A subsequent confession was taken five hours after first and was considered involuntary.

Leyra v Denno 347 U.S. 556 (1954)

Where a prior confession has been found to be involuntary and the newer confession is called into question, there is no per se rule.

U.S. v Davis 617 F. 2d 677 (1979)

9. WHETHER THE ACCUSED REPUDIATED THE EXTRAJUDICIAL AT A LATER DATE

MIRANDA WAIVER BEFORE STATEMENT

*Miranda warnings must be given in any instance where there is a custodial interrogation of the suspect.

*Unless a defendant understands his Miranda warnings and knowingly and intelligently relinquishes them, a statement obtained from him pursuant to custodial interrogation, or its functional equivalent, is inadmissible.

*To establish a waiver of rights under Miranda, there must be a knowing and intelligent relinquishment of a known right or privilege.

*This is a matter which depends in each case “upon the particular facts and circumstances surrounding that case, including the background, experience and conduct of the accused”.

*Where Miranda applies, an admission may not be received in evidence unless there was a knowing and intelligent waiver.

*Where Miranda does not apply, an admission may be received in evidence if it was freely and voluntarily given.

USING THE DEFENDANT’S STATEMENT IN COURT

If a defendant makes a valid oral confession or admission, the person to whom it is made may testify as to what was said.

If a defendant a valid written, signed confession, the confession may be read to the jury or audio/video played.

However it is not admissible in evidence to the extent that the document may be carried to the jury room.

The actual written confession in the hands of the jurors is regarded as giving the confession undue weight and importance.

However, it has been held that permitting a signed, written statement of the defendant to go to the jury is not reversible error where it is consistent with the theory of the defense.

SPECIAL NOTE: Even where a statement is found to be voluntarily made, it may be inadmissible if there is some other reason for excluding it, such as the fact that it is hearsay.

It must be remembered that statements made by a defendant which are not incriminating on their face, but which are contradictory to statements made by a defendant to an officer, may become incriminating and their admissibility in evidence is determined by the same rules governing the admissibility of a confession.

Self-serving declarations made by a defendant to an arresting officer are not admissible and may not be developed by defense counsel while cross-examining a witness called by the state.

Nevertheless, it must be remembered that where a defendant’s confession is admitted it is deemed to be admitted in its entirety including any portions which are exculpatory.

CO-DEFENDANTS

At a joint trial, if a confession of one defendant is considered, great care must be used to be sure that the identity of the person or persons (other than the confessing defendant) is or are not identified. (Redaction)

Prepared by: Dougherty County Assistant District Attorney Gregory W. Edwards (2008)

Presented by: GeorgiaPoliceAcademy Instructor Keith E. Howard

07/01/2008