Suppressing involuntary confessions

• Author: Deja Vishny
• Pages: 653-726

INVOLUNTARY

CONFESSIONS

11-1

CHAPTER 11

SUPPRESSING

INVOLUNTARY CONFESSIONS

I. INTRODUCTION

II. GOVERNING LAW

A. Early Case Law on Voluntariness

§11:01 Bram v. United States

§11:02 Brown v. Mississippi: Involuntary Confessions Violate Due Process

§11:03 Psychological Coercion can Violate Due Process

B. Modern Test for Voluntariness

§11:04 Totality of Circumstances

§11:05 Standard of Proof

§11:06 Remedy

§11:07 Wong Sun Doctrine Applies

[§§11:08-11:09 Reserved]

III. PRELIMINARY STEPS IN VOLUNTARINESS LITIGATION

§11:10 Begin Your Investigation with Your Client

§11:11 If Interrogation was Not Recorded

§11:12 If Interrogation Was Recorded

§11:13 Multiple Forms of Coercion Equal Better Chances for Suppression

IV. POLICE INTERROGATION TECHNIQUES HELD TO BE COERCIVE

A. The Obvious No-No: Physical Force and Threats of Force

§11:14 Threats of Physical Abuse by Other Prisoners

§11:15 Questioning in a Threatening Atmosphere

§11:16 Subsequent Statement May Be Admissible After “Clean Break”

§11:17 When Force was Used Against Your Client

B. Lengthy and Multiple Interrogations

1. Four Common Factors

§11:18 Extended Interrogation

§11:19 Sleep Deprivation

§11:20 Being Held Incommunicado

§11:21 Relays of Interrogators

2. Litigating Lengthy and Multiple Interrogations

§11:22 Common Fact Pattern

§11:23 Topics List: Points to Hit on Cross-Examination

§11:24 Sample Cross-Examination: Client Held Incommunicado

§11:25 Sample Cross-Examination: Atmosphere of Intimidation

INVOLUNTARY

CONFESSIONS

Suppressing Criminal Evidence 11-2

C. Threatening Unlawful Consequences to Others

1. Governing Law

§11:26 Baseless Threats Render Confessions Involuntary

§11:27 Confession Not Coerced if Threat is Legitimate and Lawfully can be Carried Out

2. Litigating Unlawful Consequences to Others

§11:28 Common Fact Scenario

§11:29 Strategy

[§11:30 Reserved]

D. Making Suspect Physically Uncomfortable

§11:31 Governing Supreme Court Cases

§11:32 Suspect Held in Temporary Lockup

§11:33 Sample Cross-Examination: Uncomfortable Circumstances

E. Violating Suspect’s Miranda Rights

§11:34 Misrepresenting Legal Consequences of Obtaining Counsel

§11:35 Misrepresenting Legal Consequences of Confession

F. Promising Leniency

§11:36 Express Promises of Leniency

§11:37 Implied Promises of Leniency

G. Fabricating Evidence

§11:38 Case Law Tends to Favor the Prosecution

§11:39 Aggressively Litigate Police Deception in Interrogations

§11:40 Intrinsic/Extrinsic Distinction in Evidence Ploys

H. Administering Lie Detection Tests

§11:41 Governing Principles

§11:42 Litigation Strategy

[§§11:43-11:44 Reserved]

I. Using the Reid Technique

1. Introduction

§11:45 Used in Most Jurisdictions

§11:46 Courts Understand Persuasive Power of Reid Method

2. Sample Cross-Examination 1

§11:47 Common Fact Pattern

§11:48 Purpose of Interrogation Was To Obtain Confession

§11:49 Lack of Evidence

§11:50 Fabricated Evidence

§11:51 Maximization of Culpability

3. Sample Cross-Examination 2 – Minimization

a. Theme Development

§11:52 Governing Principles

§11:53 Sample Cross-Examination: Suggesting a Reason for the Crime

b. Minimization Through Use of Specialized Legal Knowledge

§11:54 Sample Cross-Examination: Training and Experience

§11:55 Sample Cross-Examination: Police Did Not Give Information re Charges and

Penalties in Response to Suspect’s Questions

4. Sample Argument

J. Contamination & False Confessions

§11:56 Def‌ined

§11:57 Sample Cases

§11:58 Litigating Contamination

§11:58.1 Factual Scenario

§11:58.2 Sample Cross-Examination

§11:58.3 Sample Argument

[§11:59 Reserved]

INVOLUNTARY

CONFESSIONS

11-3 Suppressing Involuntary Confessions

V. VULNERABILITY OF THE DEFENDANT

A. Governing Principles

§11:60 Courts Weigh Degree of Coercion Against Individual’s Degree of Vulnerability

§11:61 Extremely Vulnerable Suspect May Be Coerced by Subtle Pressure

B. Discover Your Client’s Vulnerabilities

§11:62 Interview Your Client

§11:63 Obtain Records

§11:64 Interview Family and Friends

C. Retain Experts

§11:65 Psychological and Psychiatric Experts

§11:66 Medical Experts

§11:67 Experts on Coercive Police Interrogation

D. Court Testimony re Client’s Vulnerabilities

§11:68 Direct Testimony of Psychological Expert

§11:69 Cross-Examination of Interrogating Off‌icers

E. Juveniles as Vulnerable Defendants

1. Governing Law

§11:70 Courts Treat Minors Differently From Adults

§11:71 Presence of Interested Adult

2. Adult Court Penalties

§11:72 General Rule: Police Not Required to Inform Juvenile of Possible Adult Penalties

§11:73 Sample Cross-Examination on Failure to Inform Juvenile of Adult Penalties

§11:74 Sample Argument

F. Language Barriers

§11:75 Suspect With Language Diff‌iculties is Vulnerable

§11:76 Consider Hiring an Expert

G. Coercion By or On Behalf of State

§11:77 Governing Law

§11:78 Sample Case Scenario

§11:79 Sample Cross-Examination

§11:80 Sample Argument

[§§11:81-11:84 Reserved]

VI. SUBSEQUENT CONFESSION FOLLOWING COERCED STATEMENT

A. Two Interrogations Part of Same Stream of Events

§11:85 Governing Law

§11:86 Checklist: Factors Linking the Two Interrogations

B. Second Statement Obtained in Event First Statement was Suppressed

§11:87 Common Fact Scenario

§11:88 Sample Cross-Examination

VII. PERMISSIBLE USE OF COMPELLED STATEMENTS

A. Pre-Conviction Statements

§11:89 Testimonial Evidence

§11:90 Non-Testimonial Evidence

§11:91 Other Uses of Compelled Statements

B. Post-Conviction Statements

§11:92 General Rule

§11:93 Persons Under Supervision

§11:94 Post-Conviction Compelled Statements by Sex Offenders

VIII. FORMS

Form 11-1 Motion to Suppress – Unlawful Arrest; Voluntariness; Miranda; Reid Method

Form 11-2 Motion to Suppress Statements - Cognitively Disabled Client