Coerced & False Confessions: Wrongful Conviction in California

After a grueling interrogation during which 14-year-old Michael Crowe was isolated, deceived and manipulated every which way, he finally said something his accusers wanted to hear: "I think I did it."

But Michael didn't do it.  He did not brutally stab and murder the sister he loved, as cops had accused him of doing.  It was only after the cops got around to testing DNA evidence that they finally conceded they had gotten it all wrong.1

Coerced, involuntary and false confessions turn fair judicial process upside down and in the most extreme cases lead to wrongful conviction and grave injustice.

In this article, our California Criminal Defense Lawyers discuss the law and psychology behind coerced confessions in California.  We have a unique perspective on the issue, having worked as police officers and prosecutors before switching sides to represent defendants.2

We know that not everyone who confesses is guilty and we understand the unscrupulous lengths to which some cops go to make a case.  Most importantly, we know how to invoke this as a legal defense to keep false and coerced confession away from the jury.

We cover:

1. What is a coerced confession?
2. What is the California law governing coerced confessions?

2.1. Constitutional provisions

2.2. Totality of the circumstances

2.3. Deception, exhortations and"befriending"

3. Why are coerced confessions
so problematic?

3.1. Wrongful convictions

3.2. Psychology behind false confessions

4. Do I win my California criminal case if my confession was coerced?

If you have further questions after reading this article, we invite you to contact us at Shouse Law Group for a consultation.

1.  What is a coerced confession?

A coerced confession is an involuntary confession that comes from overbearing police conduct instead of a defendant's"rational intellect and free will."3

The incriminating statement is not a product of the suspect's free choice (whether motivated by a guilty conscience or something else).  It is manipulated out of the suspect by police tactics ranging from outright physical abuse to insidious psychological gamesmanship designed to bully, intimidate, confuse, cajole and exhaust.4

Not all instances of coercion in California render a"false confession." Sometimes a suspect is coerced into admitting the truth. However, as we explain below, it's not uncommon for a suspect to"cop" to a crime he didn't commit just to placate his interrogators and stop the bullying. Tragically, this practice has led to many a wrongful conviction.

Physical abuse

The 1936 case Brown v. Mississippi involved confessions secured through whippings and tree-hangings.  The United States Supreme Court made clear that such horrific tactics are constitutionally prohibited:

It would be difficult to conceive of methods more revolting to the sense of justice than those taken to procure the confessions of these petitioners, and the use of the confessions thus obtained as the basis for conviction and sentence was a clear denial of due process.5

More recently, in a"classic case of coercion," the Ninth Circuit tossed statements made by a suspect after he'd been thrown to the ground by cops and repeatedly kicked in the stomach and groin.  The officers in that case also threatened to kill the suspect.6

Because coercive police tactics take place behind closed doors, we may never know how many suspects continue to suffer physical abuse during interrogation.7

Psychological abuse

In order to constitute a constitutionally prohibited involuntary confession, there must be some form of coercive police conduct at play.  But it need not be physical.8

Detectives schooled in the latest psychological interrogation techniques know that a suspect's will can be overborne by mental and emotional ploys like threats of harsher punishment and express or implied promises of leniency, just as a suspect's will can be"beaten into submission" with physical violence.9

Certain suspects - such as juveniles and those with cognitive or developmental disabilities - are particularly susceptible to underhanded psychological tricks.

Let's look at an example from a murder investigation:

Example:  Eighteen-year-old Kenneth Ray Neal is taken to the police station in connection with the strangling death of an older man with whom Neal is temporarily staying.  The two men met while Neal was living in a group home.

Neal comes from a neglectful and possibly abusive background.  He did not finish high school and has relatively low intelligence.  There is indication of possible sexual exploitation.

At the station, Detective Martin reads Neal his Miranda rights and Neal asks for a lawyer nine times.

Instead of getting him a lawyer, Detective Martin badgers and manipulates Neal - calling him a liar and threatening that if he does not cooperate the 'system is going to stick it to you as hard as they can.'  Detective Martin also uses mental trickery, implying that Neal will get 'closer to home' if he cooperates.

Detective Martin purposely disregards Neal's Miranda rights as part of a strategy to get a statement to impeach Neal at trial.

When Neal doesn't confess, he's placed overnight in a solitary holding cell without food, drink or toilet facilities.  He is not allowed access to family, friends or a lawyer.

The next day, in a misguided effort to get help and a letter to his mother, Neal confesses to Detective Martin.  He is subsequently convicted of murder.

The California Supreme Court takes a look at what happened and reverses the conviction on the ground that Detective Martin unconstitutionally coerced the confession from Neal.  Of particular concern to the court is Detective Martin's deliberate and repeated violation of Miranda safeguards; Neal's youth, lack of education and low intelligence; Detective Martin's use of threats and promises; and the isolation and deprivation of the overnight holding cell.10
2. What is the California law governing coerced confessions?

Our legal system protects us from having involuntary or coerced confessions admitted against us at trial.  Here are a few big-picture policy considerations behind the protection:

  1. Our criminal justice system is designed to get at truth through questioning and legal process, not brute force and inquisition.11
  2. Being coerced into giving a confession is anti-free will and demeans the dignity of the individual.12
  3. History shows us that we must keep an eye on power structures like law enforcement so they don't trample on the rights of the weakest and most vulnerable among us.13
  4. Police officers must follow the law like everyone else.14
  5. A confession is a uniquely powerful piece of evidence - particularly persuasive with jurors - so the system better get it right.15

2.1. Constitutional provisions

Confessions (rather false or true) procured through overreaching police conduct deprive us of our right to due process of law and our right against self-incrimination.  According to the California Supreme Court:

It is axiomatic that the use in a criminal prosecution of an involuntary confession constitutes a denial of due process of law under both the federal and state Constitutions.16

Involuntary confessions are prohibited by the federal constitution's Due Process Clause and by Article I, Section 15 of the California Constitution.

Other constitutional provisions implicated by coerced confessions are the Fifth Amendment constitutional right against self-incrimination and the Sixth Amendment constitutional right to counsel.

Admissibility issues

A coerced confession is inadmissible at trial even if it is true.17 The key concept is whether the confession was secured by coercive police conduct, not whether it is true or false confession.

Involuntary confessions are inadmissible for any purpose, whereas incriminating statements made under circumstances involving Miranda violations can be admitted to impeach the credibility of a defendant.

(A discussion of Miranda warnings and the way Miranda analysis overlaps with and differs from traditional voluntariness analysis is beyond the scope of this article.  While these are distinct, if blurred, concepts, it bears noting that if a suspect waives his or her Miranda rights that suspect will likely have a more difficult time making an involuntariness claim.)18

In order for a confession to be admitted at trial, the prosecutor must prove by a preponderance of the evidence that it was voluntarily given.19

If an involuntary confession is erroneously admitted, the standard for reversal is harmless-error-beyond-a-reasonable-doubt (as opposed to reversible error per se).20

2.2. Totality of the circumstances

To determine whether a confession was voluntary or coerced, a court looks at the"totality of the circumstances" under which the confession was made.21

The court tries to figure out whether the confession was truly voluntary or whether it was the product of overbearing police behavior - whether cops simply went too far.

For example:

  • did cops beat, physically harm or threaten to harm the suspect in an effort to get the confession?22
  • did cops threaten the suspect with a harsher sentence or the death penalty?23
  • did detectives threaten to arrest or jail the suspect's family members, or make threats regarding the welfare of the suspect's children?24
  • did detectives make any express or implied promises of leniency or reduced sentence?25
  • did cops repeatedly deny the suspect his/her right to counsel and to remain silent during the interrogation?26
  • did officers isolate the suspect and/or wear the suspect down through deprivation of sleep, water, food and/or toilet facilities27
  • was the interrogation unrelenting and unduly lengthy?28
  • did detectives exploit a particular weakness of the suspect, such as his/her young age, low IQ and/or precarious mental and emotional state?29

2.3. Deception, exhortations and"befriending"

So far we've talked about impermissible police interrogation techniques.  Now let's discuss a few permissible ones.

Deception

As a society, we generally don't condone lying - whether during a legal process or in our personal and professional relationships.

Yet deception is allowed during a police interrogation so long as the subterfuge does not proximately result in a confession, tend to produce a false confession or constitute overbearing conduct within the larger scheme of things."Lies told by the police to a suspect under questioning can affect the voluntariness of an ensuing confession," the California Supreme Court explained in a 1998 death penalty case,"but they are not per se sufficient to make it involuntary."

In that case, cops falsely told the suspect that his fingerprints had been found on the victim.30

Here is another example:

Example:  A murder is committed outside a fast-food restaurant early one morning.  Police hone in on suspect Darious Mays, who denies involvement in the shooting.  Mays requests a lie detector test.

Cops administer a fake polygraph test and prepare fake test results.  When they show the results to Mays and tell him he failed the test, Mays changes his story and admits being present at the shooting.

The court decides that this trickery is not particularly coercive or shocking.  The detectives had other information showing Mays' guilt (so the trickery did not induce a false confession) plus the subterfuge led to a mere change of story and not a wholesale confession.31

Exhortations

A detective is allowed to strongly urge a suspect to tell the truth and to point out benefits that would"flow naturally" from truthful conduct.

The cop can thus tell a suspect that it would"benefit" him to cooperate because the cop will"bring" those cooperating statements to the district attorney.32

"Befriending"

Another deceptive tactic cops use is to"befriend" the suspect.

If you are a suspect being interrogated for a crime, do not deceive yourself that you are in any way a friend of the detective.

Interrogations are predator/prey situations arising out of the most tragic high-stakes circumstances - often when lives have been taken and a life is on the line.  The interrogator is not there to have a friendly chat or to help you move past your troubles.  The investigator is there to find your greatest weakness, exploit it, and hurl you to a system that is stacked against you.

If the cop tells you that you will"feel better" when you"unburden yourself," what the cop means is that he will feel better when he closes the case.

And while you are in the interrogation room, why not unambiguously exercise your Miranda rights to remain silent and have benefit of counsel?33

3.  Why are involuntary confessions so problematic?

In addition to philosophical concerns, there's a significant practical problem with coerced confessions.  They are unreliable and lead to many wrongful convictions in the state of California.

3.3. Wrongful convictions

It is a myth that innocent people never confess to crimes.  According to one expert, there have been at least 300 proven false confessions in recent decades.34

Brandon Garrett's 2010 Stanford Law Review article focuses on the troubling phenomenon of"confession contamination," the process by which officers feed confession-content to suspects.

The study looked at 250 rape and murder cases that were later reversed after DNA testing proved the defendant was not the perpetrator after all. Forty-two of those defendants had given a false confession.  Not only did the defendants say"I did it," most went on to give detailed descriptions of the crimes with information only the police or the perpetrator could know about.35

With results like these, it is clear that things can go seriously wrong during police interrogations.36

The"problems caused by police-induced false confessions are significant, recurrent, and deeply troubling," observed coerced confession experts Richard Leo and Richard Ofshe in 1998.37

3.2. Psychology behind false confessions

Why would an innocent person ever falsely confess to a crime?  We need only delve into psychology to find the answer to this perplexing question.

Turns out people are influenced and motivated to act by a number of factors.  Some individuals are more susceptible to pressure than others and under certain circumstances people can even come to doubt what they know to be the truth.

That appears to be what happened during the heart-wrenching coercive interrogation of young Michael Crowe.

"'Psychological torture' is not an inapt description," the Ninth Circuit wrote about the conscience-shocking interrogation to which Michael was subjected.38

Three types of confessions

According to the experts, there are three types of false confessions.  A voluntary false confession is prompted by a psychiatric disorder or an internally-driven motivation like a quest for notoriety or desire to protect someone else.

The more common compliant false confession might be given by someone who is vulnerable and finally tells the accuser whatever he or she wants to hear just to make the torment stop:

The interrogator's interpersonal style may also be a source of distress: he may be confrontational, insistent, demanding, overbearing, deceptive, hostile, and manipulative.  His accusatorial techniques are also designed to induce distress by attacking the suspect's self-confidence, by not permitting him to assert his innocence, and by causing him to feel powerless and trapped.  The interrogation may span hours, as often occurs with compliant false confessions, weakening a suspect's resistance, inducing fatigue, and heightening suggestibility.  The combined effect of these multiple stressors may overwhelm the suspect's cognitive capacities such that he confesses simply to terminate what has become an intolerably stressful experience.39

Finally, in the case of a persuaded false confession, the suspect may actually come to doubt his or her own memory and become"temporarily persuaded that it is more likely than not that he committed the crime, despite having no memory of it."

4.  Do I win my California criminal case if my confession was coerced?

You will not necessarily win your case, even if you were coerced into giving a confession.  Not every judge sees an involuntary confession in the same way and the district attorney might still prosecute the case based on other evidence.

But you will greatly increase your odds of a successful outcome if you have a skilled attorney in your corner.

Our California Criminal Defense Lawyers are in a unique position to help, given our background in law enforcement and years of trying cases for both the prosecution and the defense in courthouses across California.  We know the most effective ways to get the charges dismissed - or at least keep an unconstitutional confession (and evidence that flowed from it) from the jury.

We look forward to the day when coercive interrogations, false confessions and wrongful convictions are a thing of the past.

But until that time comes, our clients can take comfort in the realization that we've seen things from both sides.  We know how to beat them at their own game.

Our California Criminal Defense Lawyers Can Help.
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If you or loved one is in need of help false confessions as a legal defense and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

You might also be interested in reading our related articles Police Misconduct and Civil Rights Violations, Prison and Jail Abuse in California, Tasers and Excessive Force, and Section 1983 Actions for Civil Rights Violations.

Additionally, we have a wide array of articles available on criminal law topics like Common Crimes from A to Z, Entrapment, Bail Bonds, Three-Strikes, and Expungements.

Helpful links:

The Innocence Project

Centurion Ministries

Northwestern Law Center on Wrongful Convictions

References:

1Crowe v. County of San Diego (9th Cir. 2010) Case No. 05-55467 at 1572 ("This civil rights case arose from the investigation and prosecution of innocent teenagers for a crime they did not commit.  Michael Crowe, Aaron Houser, and Joshua Treadway were wrongfully accused of the murder of Michael's 12-year-old sister Stephanie Crowe.  After hours of grueling, psychologically abusive interrogation-during which the boys were isolated from their families and had no access to lawyers-the boys were indicted on murder charges and pre-trial proceedings commenced.  A year later, DNA testing revealed Stephanie's blood on the shirt of a transient, Richard Tuite, who had been seen in the Crowes' neighborhood on the night of the murder and reported by several neighbors for strange and harassing behavior.  The shirt had been collected as part of the initial investigation, but never fully tested.  Charges against the boys were eventually dropped, and Tuite was convicted of Stephanie's murder."  Id at 1558)

2Our California Criminal Defense Lawyers have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina and Whittier.  We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

3Blackburn v. Alabama, 361 U.S. 199, 208 (1960) [confession involuntarily obtained from severely mentally disabled man] ("Surely, in the present stage of our civilization, a most basic sense of justice is affronted by the spectacle of incarcerating a human being upon the basis of a statement he made while insane; and this judgment can without difficulty be articulated in terms of the unreliability of the confession, the lack of rational choice of the accused, or simply a strong conviction that our system of law enforcement should not operate so as to take advantage of a person in this fashion.  And when the other pertinent circumstances are considered -- the eight to nine-hour sustained interrogation in a tiny room which was upon occasion literally filled with police officers; the absence of Blackburn's friends, relatives, or legal counsel; the composition of the confession by the Deputy Sheriff, rather than by Blackburn -- the chances of the confession's having been the product of a rational intellect and a free will become even more remote, and the denial of due process even more egregious.")

4This article deals with confessions as opposed to admissions, but for"evidentiary purposes, the distinction between 'confession' and 'admission' has little practical significance."  See CEB California Criminal Law Procedure and Practice � 23.3 9 (Confessions and Admissions:  Definitions and Differences) ("A confession is a defendant's statement that contains a complete and express acknowledgment of all facts necessary to establish the defendant's guilt of the crime charged.Assuming that there is independent evidence of the crime that satisfies any corpus delicti requirement, a confession is, by definition, sufficient evidence to sustain a guilty verdict if believed by the jury.. If a defendant's statement contains facts that amount to a claim of mitigation, justification, or excuse, or fails to admit (at least by inference) every element of the offense, it is only an admission..")

5Brown v. Mississippi, 297 U.S. 278, 286 (1936) (Quoting facts from the state court dissenting opinion:"Upon his denial, they seized him and, with the participation of the deputy, they hanged him by a rope to the limb of a tree, and, having let him down, they hung him again, and when he was let down the second time, and he still protested his innocence, he was tied to a tree and whipped, and still declining to accede to the demands that he confess, he was finally released and he returned with some difficulty to his home, suffering intense pain and agony..The other two defendants, Ed Brown and Henry Shields, were also arrested and taken to the same jail.  On Sunday night, April 1, 1934, the same deputy, accompanied by a number of white men, one of whom was also an officer, and by the jailer, came to the jail, and the two last named defendants were made to strip, and they were laid over chairs and their backs were cut to pieces with a leather strap with buckles on it, and they were likewise made by the said deputy definitely to understand that the whipping would be continued unless and until they confessed, and not only confessed, but confessed in every matter of detail as demanded by those present, and in this manner the defendants confessed the crime, and as the whippings progressed and were repeated, they changed or adjusted their confession in all particulars of detail so as to conform to the demands of their torturers."  Id at 281)

6U.S. v. Jenkins, 938 F.2d 934, 940 (1991) ("The circumstances of this confession present a classic case of coercion.  Defendant is beaten and threatened with death, shuttled between the hospital and jail, questioned immediately upon his return in the small hours of the morning, at which point he confesses.  While it is true that Jenkins did not blurt out a confession while being beaten or threatened, there is no evidence he was even questioned at that earlier time.  Instead, a brief period of time, consumed almost exclusively by his hospital treatment, passed without any curative measures aimed at dissipating the coercive environment.  At the first occasion for him to capitulate, at his initial questioning, he did.")

7Former California Supreme Court Justice Mosk weighed in on this issue in his dissenting opinion in People v. Cahill, infra, a case which scaled back coerced confession protection:"The majority declare that the 'situation in which a confession is obtained as a result of an improper promise of benefit or leniency' is 'much more common' than that in which a confession is 'elicited by violence or threats of violence'.This factual assertion is unsupported.  I hope it is true.  I fear it is not."  People v. Cahill, 5 Cal.4th 478, 515, footnote 3, infra.

8Colorado v. Connelly, 479 U.S. 157, 167 (1986) [no coerced confession when mentally ill man confessed to murder completely on own as result of psychosis and not police coercion] ("We hold that coercive police activity is a necessary predicate to the finding that a confession is not 'voluntary' within the meaning of the Due Process Clause of the Fourteenth Amendment."); People v. Cox, 221 Cal.App.3d 980, 987 (1990) [confession given under influence of methamphetamine admissible where no coercion] ("Earlier authority in California indicated that a confession or admission would be deemed involuntary and inadmissible because of the defective mental condition of the defendant, regardless of the existence of police coercion...We believe this authority, which created a standard of constitutional admissibility higher than the federal standard, is no longer viable..While the Markham decision dealt with the question of burden of proof of voluntariness, we believe its implication to the resolution of the issue now before us is clear.. We believe the present status of the matter is that we are obliged to follow federal precedent in determining admissibility of confessions or admissions dependent upon the factor of voluntariness.  We therefore follow Colorado v. Connelly and affirm the trial court's ruling of admissibility.")  NOTE that the appellate court left open the possibility that an involuntary confession produced without police coercion might still be inadmissible on reliability as opposed to constitutional grounds.  ("while the Connelly court held some form of coercion is required before Constitutional issues are implicated, Connelly specifically preserved to state law the determination whether to exclude non-coerced evidence of questionable reliability.  We can conceive cases in which an admission, although not coerced or otherwise obtained in violation of other constitutional protections, might well be excludable under substantive state law evidentiary provisions."  Id, footnote 3)

9People v. Cahill, 5 Cal.4th 478, 485 (1993) [over impassioned dissents, brings California law in line with federal law and holds that erroneous admission of coerced confession is no longer reversible error per se] ("Past cases establish that the category of involuntary or coerced confessions encompasses a wide range of circumstances and includes not only the most familiar example of confessions extracted from a suspect by means of actual or threatened physical violence or torture, but also confessions elicited by those psychological ploys and interrogation techniques whose use, although less egregious than the resort to physical violence or torture, nonetheless have been deemed to be inconsistent with a defendant's right to be free from compelled self-incrimination.  The Court of Appeal concluded that the interrogation technique employed during the police questioning of defendant in this case rendered defendant's resulting confession 'involuntary' under a long line of cases that have held confessions inadmissible when obtained as a result of express or implied promises, on the part of law enforcement officials, of 'leniency' or 'benefit' in the event the defendant confesses."  Internal citations omitted.)

10People v. Neal, 31 Cal.4th 63, 84 (2003) ("Defendant's education was minimal, inasmuch as he failed to graduate even from continuation high school. Defendant's background was one of thoroughgoing neglect if not abuse.  And defendant's intelligence, as the record reveals from beginning to end, was quite low.  As for defendant's situation, after he was arrested and jailed following the first interview, he was placed in a cell without a toilet or a sink, he did not have access to counsel or to any other noncustodial personnel, he was not taken to a bathroom or given any water until the next morning, and he was not provided with any food until some time following the third interview, after more than 24 hours in custody and more than 36 hours since his last meal.  Perhaps most significantly, defendant, as far as he could tell, was confined incommunicado.. Martin did not offer defendant an opportunity to speak with an attorney or even with his mother or his brother, nor was there any evidence suggesting that anyone other than Martin made such an offer.  Although defendant's situation might not have reflected 'physical punishment' in the strictest sense of the phrase, its harshness cannot be ignored..The third circumstance that additionally weighs heavily against the voluntariness of defendant's initiation of the second interview, and against the voluntariness of his two subsequent confessions as well, arises from Detective Martin's promise and threat to defendant at the first interview.  Promises and threats traditionally have been recognized as corrosive of voluntariness.  Here we have both a promise and a threat.In light of the record in its entirety, including all of the surrounding circumstances, we conclude that defendant's initiation of the second interview was involuntary, and that his two subsequent confessions were involuntary as well.  Therefore, defendant's confessions were inadmissible not only in the People's case-in-chief because they were obtained in violation of Edwards, but also were inadmissible for any purpose because they were involuntary."  Internal citations omitted)

11Watts v. Indiana, 338 U.S. 49, 54 (1949) [involuntary confession in murder case] ("To turn the detention of an accused into a process of wrenching from him evidence which could not be extorted in open court, with all its safeguards, is so grave an abuse of the power of arrest as to offend the procedural standards of due process.  This is so because it violates the underlying principle in our enforcement of the criminal law.  Ours is the accusatorial, as opposed to the inquisitorial, system.  Such has been the characteristic of Anglo-American criminal justice since it freed itself from practices borrowed by the Star Chamber from the Continent whereby an accused was interrogated in secret for hours on end.. Under our system, society carries the burden of proving its charge against the accused not out of his own mouth.  It must establish its case not by interrogation of the accused, even under judicial safeguards, but by evidence independently secured through skillful investigation.")

12People v. Cahill, 5 Cal.4th 478, 608, supra (Mosk, in dissent about the new harmless-beyond-a-reasonable-doubt standard for erroneously admitted confessions:"But the policy that is the most substantial, expansive, and fundamental is this:  The privilege contributes toward a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load.  For it is the prevailing ethic that the individual is sovereign and that proper rules of battle between government and individual require that the individual not be bothered for less than good reason and not be conscripted by his opponent to defeat himself ...."  Internal citations and quotations omitted)

13Chambers v. Florida, 309 U.S. 227, 237 (1940) [confessions extracted by psychological coercion] ("The testimony of centuries, in governments of varying kinds over populations of different races and beliefs, stood as proof that physical and mental torture and coercion had brought about the tragically unjust sacrifices of some who were the noblest and most useful of their generations. The rack, the thumbscrew, the wheel, solitary confinement, protracted questioning and cross questioning, and other ingenious forms of entrapment of the helpless or unpopular had left their wake of mutilated bodies and shattered minds along the way to the cross, the guillotine, the stake and the hangman's noose. And they who have suffered most from secret and dictatorial proceedings have almost always been the poor, the ignorant, the numerically weak, the friendless, and the powerless.")

14Collazo v. Estelle, 940 F.2d 411 (1991) [involuntary confession in murder case where officer disregarded Miranda invocation] ("This disregard for established rules exacerbates the police conduct in question and it evokes Justice Brandeis' timeless dissenting remarks in Olmstead v. United States.Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen.  In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously.  Our Government is the potent, the omnipresent teacher.  For good or for ill, it teaches the whole people by its example.  Crime is contagious.  If the Government becomes a law-breaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.Based on the foregoing, our plenary review of the tactics used by Officer Destro in an attempt to pressure Collazo into talking to his adversaries leads us to a two-part conclusion.  First, Officer Destro's tactics add up to a flagrant breach of the prophylactic rules established by the Supreme Court in Miranda and its progeny to protect a defendant's Constitutional right against self-incrimination.  Second, Officer Destro's overreaching behavior violated not only Miranda, but also the general Constitutional prohibition against coercive interrogation practices likely to result in involuntary responses.  Officer Destro's gambit was inconsistent with Collazo's Fifth Amendment right against self-incrimination as well as his right to consult an attorney.  His inquisitorial stratagem was calculated to break Collazo's will.  As such, it offends due process as guaranteed by the Fourteenth Amendment.")

15People v. Cahill, 5 Cal.4th 478, 624, supra (Mosk, in dissent:".the admission of a coerced confession is a profoundly grave defect going to the very heart of a criminal trial.the fact that evidentiary force inheres in confessions as such - that, in its own words, any 'confession operates as a kind of evidentiary bombshell which shatters the defense'.  Italics added)

16People v. Jimenez, 21 Cal.3d 595, 602 (1978) [coercion by express or implied promise that defendant would not get death penalty]

17Rogers v. Richmond, 365 U.S. 534, 540 (1961) [proper analysis is coercion or no coercion as opposed to truth or falsity of confession] ("Our decisions under that Amendment have made clear that convictions following the admission into evidence of confessions which are involuntary, i.e., the product of coercion, either physical or psychological, cannot stand.  This is so not because such confessions are unlikely to be true, but because the methods used to extract them offend an underlying principle in the enforcement of our criminal law..To be sure, confessions cruelly extorted may be and have been, to an unascertained extent, found to be untrustworthy.  But the constitutional principle of excluding confessions that are not voluntary does not rest on this consideration.")

18Dickerson v. United States, 530 U.S. 428, 444 (2000) [reaffirming constitutional dimension of Miranda warnings and acknowledging that incriminating statements must pass both Miranda and voluntariness tests] ("The requirement that Miranda warnings be given does not, of course, dispense with the voluntariness inquiry.  But as we said in Berkemer v. McCarty., '[c]ases in which a defendant can make a colorable argument that a self-incriminating statement was 'compelled' despite the fact that the law enforcement authorities adhered to the dictates of Miranda are rare.'"); Miranda v. Arizona, 384 U.S. 436, 444 (1966) [mandating certain protections for defendants given oppressive nature of custodial interrogation] ("Our holding will be spelled out with some specificity in the pages which follow but briefly stated it is this:  the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.  By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.  As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required.  Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.  The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently.") SEE ALSO California Criminal Defense Practice, Vol. 2 (Matthew Bender), � 30.20[2] (Miranda Violations and Due Process Voluntariness Violations Distinguished] ("The distinction between traditional involuntariness, which is based on Fourteenth Amendment due process principles, and involuntariness in the sense that the statement is taken in violation of Miranda, which stems from the Fifth Amendment, but nevertheless is merely a prophylactic rule, produces some differences.The most significant differences, however, are that: (1) although the erroneous introduction of any statement obtained in violation of a federal constitutional guarantee is subject to the harmless-beyond-a-reasonable-doubt standard or review, the reviewing court is required to exercise extreme caution in determining whether the introduction of a full, involuntary confession was harmless under that standard; and (2) an involuntary confession may not be used at trial for any purpose, whereas a confession obtained in violation of Miranda may be used to impeach the defendant if he or she takes the witness stand, even if the Miranda violation was intentional.  However.")

19People v. Markham, 49 Cal.3d 63 (1989) [adopting federal preponderance of evidence standard in light of California Constitution's"truth-in-evidence law"] ("The beyond a reasonable doubt standard of proof required under Jimenez compels exclusion of confessions and admissions otherwise admissible as voluntary under the less demanding federal preponderance-of-the-evidence standard of Lego v. Twomey.  Consequently, the procedural rule of Jimenez accomplishes what a rule founded on independent state constitutional grounds, in the wake of Proposition 8, cannot -- exclusion of relevant evidence based upon a standard of proof of voluntariness more stringent than that mandated by the federal Constitution.  We have explained that the intent of the electorate in passing Proposition 8 was to curtail the exclusion of relevant evidence based upon independent state grounds, except as required by the Constitution of the United States.The Constitution of the United States requires no more than that the voluntariness of confessions or admissions be proved by a preponderance of the evidence at trial.Section 28(d) establishes that standard as the rule in California.")

20Arizona v. Fulminante, 499 U.S. 279, infra [government agent incarcerated with suspect, an alleged child murderer, implies that suspect will be harmed by other inmates if he does not confess and secure his protection] ("Four of us, Justices Marshall, Blackmun, Stevens, and myself, would affirm the judgment of the Arizona Supreme Court on the ground that the harmless-error rule is inapplicable to erroneously admitted coerced confessions.  We thus disagree with the Justices who have a contrary view.  The majority today abandons what until now the Court has regarded as the axiomatic [proposition] that a defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession, without regard for the truth or falsity of the confession, and even though there is ample evidence aside from the confession to support the conviction..Today, a majority of the Court, without any justification, overrules this vast body of precedent without a word and in so doing dislodges one of the fundamental tenets of our criminal justice system."  Internal citations and quotations omitted); People v. Cahill, 5 Cal.4th 478, 604, supra ("Accordingly, for the reasons discussed above, we overrule the line of California decisions holding that the erroneous admission of a coerced confession is reversible per se under California law.  The prejudicial effect of such error is to be determined, for purposes of California law, under the generally applicable reasonable-probability test embodied in article VI, section 13, of the California Constitution.. Of course, because the Watson standard is less demanding than the harmless-beyond-a-reasonable-doubt standard mandated by the applicable federal constitutional authorities.whenever a confession admitted in a California trial has been obtained by means that render the confession inadmissible under the federal Constitution, the prejudicial effect of the confession must be determined under the federal standard.") BUT NOTE that the reach of Fulminante has been called into question in cases involving physical coercion. See U.S. v. Jenkins, 938 F.2d 934, 942, supra ("Unlike this case, the coercion found in Fulminante was not in the form of beatings and death threats by the police.  In fact, Chief Justice Rehnquist noted the propriety of applying harmless-error analysis to the facts of Fulminante by emphasizing, '[t]his is especially true in a case such as this one where there are no allegations of physical violence on behalf of the police.' Because the Court was not faced with facts that necessitated its passing on whether harmless-error analysis applies even to brutality-induced confessions, it is unclear whether the Court intended to reach that issue in Fulminante.")

21People v. Massie, 19 Cal.4th 550, 576 (1998) [confession in death penalty case not coerced with implied promise of separate jail cell] ("Under both state and federal law, courts apply a totality of circumstances test to determine the voluntariness of a confession.  Among the factors to be considered are the crucial element of police coercion; the length of the interrogation; its location; its continuity as well as the defendant's maturity; education; physical condition; and mental health.  On appeal, the trial court's findings as to the circumstances surrounding the confession are upheld if supported by substantial evidence, but the trial court's finding as to the voluntariness of the confession is subject to independent review.  In determining whether a confession was voluntary, [t]he question is whether defendant's choice to confess was not essentially free because his will was overborne." Internal citations and quotations omitted.)

22Brown v. Mississippi, 297 U.S. 278, supra; People v. Neal, 31 Cal.4th 63, supra; Arizona v. Fulminante, 499 U.S. 279 (1991) ("Accepting the Arizona court's finding, permissible on this record, that there was a credible threat of physical violence, we agree with its conclusion that Fulminante's will was overborne in such a way as to render his confession the product of coercion.")

23People v. McClary, 20 Cal.3d 218, 229 (1977) [officers imply that 16-year-old murder suspect will get light sentence if she confesses or be charged with the death penalty] ("We think the following facts are significant:  Defendant, while doubtless sophisticated for her years, was a 16-year-old girl; the officers failed to respond to any of defendant's repeated requests for the assistance of counsel; there was a relatively short time span between the two interviews during some of which time defendant had remained in the officers' presence; during the first interview defendant had several times been called a liar; the death penalty had been improperly mentioned; there were implications for leniency in the"principal vs. accessory" conversation.  Taken together, we think it fair to conclude from the record that the threats of punishment and the promises of leniency echoed in the continuum between the two conversations to a degree which renders her statements in the second interview involuntary and inadmissible."); BUT SEE People v. Williams, 49 Cal.4th 405, 442 (2010) [incriminating statement upheld in capital murder case involving robbery, arson and murder even though death penalty raised during interrogation] ("Reviewing the totality of the circumstances of the first interview, we conclude that defendant's will was not overborne.  He had experience in the criminal justice system.  Defendant understood his right to counsel and to remain silent, but waived those rights.  He effectively parried the officers' accusations and questions, as noted by the trial court.  He did not appear upset by the officers' reference to the death penalty.")

24In re Shawn D., 20 Cal.App.4th 200, 213 (1993) [threats to juvenile suspect's girlfriend a factor in totality of circumstance analysis reversing burglary conviction on basis on coerced confession] ("The officer's references to appellant's girlfriend are more bothersome.  As previously noted, the officer told appellant that he 'did not want to see [appellant's girlfriend] get into trouble.'  The officer stated that appellant 'was putting [his girlfriend] in a precarious situation.'  These statements imply that appellant's girlfriend would get 'into trouble' unless appellant confessed.. The aspects of the interrogation noted above -- the untruths, the threat of being tried as an adult, the wedding ring parable, and the reference to appellant's girlfriend 'getting in trouble'-- are not commendable.  However, even if these aspects together were insufficient to demonstrate that appellant's will was overborne, we would nonetheless conclude that appellant's confession was involuntary.  This is because the police repeatedly suggested that appellant would be treated more leniently if he confessed.  Such promises plainly render a confession inadmissible.")  SEE ALSO U.S. v. Tingle, 658 F.2d 1332 (1981) [confession involuntarily given in purloining case] ("We think it clear that the purpose and objective of the interrogation was to cause Tingle to fear that, if she failed to cooperate, she would not see her young child for a long time.  We think it equally clear that such would be the conclusion which Tingle could reasonably be expected to draw from the agent's use of this technique.  The relationship between parent and child embodies a primordial and fundamental value of our society.  When law enforcement officers deliberately prey upon the maternal instinct and inculcate fear in a mother that she will not see her child in order to elicit 'cooperation,' they exert the 'improper influence' proscribed by Malloy.")

25People v. McClary, 20 Cal.3d 218, supra; In re Shawn D., 20 Cal.App.4th 200, supra.

26People v. Neal, 31 Cal.4th 63, supra.

27People v. Neal, 31 Cal.4th 63, supra.

28People v. Esqueda, 17 Cal.App.4th 1450, 1485 (1993) [lengthy and unrelenting interrogation in murder case are factors in coerced confession involving"outrageous police behavior"] ("Including the pre-Miranda interrogation, the police questioned Esqueda for eight hours.  He, of course, received no rest during his processing and received little, if any, respite from the constant police pressure to confess.  Esqueda was hysterical at the time the interviewing started.  He had been drinking and was obviously distraught.  By Valle's own account, Esqueda was emotionally distraught and exhausted, yet he and the other police detectives unremittingly pressured their prey until he finally yielded."); BUT SEE People v. Jablonski, 37 Cal.4th 774, 815 (2006) [incriminating statement in death penalty case not involuntary even in face of Miranda violation] ("Neither the length nor physical circumstances of defendant's interrogation appear to have been coercive; the interrogation was spread over a four-hour period from midmorning to midafternoon with a refreshment break and a lunch break.")

29People v. Neal, 31 Cal.4th 63, supra; People v. Esqueda, 17 Cal.App.4th 1450, 1466, supra ("Valle said Esqueda was emotionally upset, i.e., 'distraught, whining, crying, whimpering, shaking,' and continually asked about Ana, his live-in companion")]; BUT SEE People v. Carrington, 47 Cal.4th 145, 176 (2009) [cops did not exploit religious sensibility in eliciting confession in death penalty case] ("Finally, defendant asserts that her confession to the murder of Victor Esparza was obtained through improper appeals to religious belief, because during the interrogation Detective Lindsay stated 'there's someone up above, bigger than both of us looking down saying Celeste, you know that you shot that person in San Carlos and it's time to purge it all'..When police comments are not 'calculated to exploit a particular psychological vulnerability of [the] defendant,' however, and 'no acute religious anxiety or sense of guilt was apparent from prior questioning,' appeals to religion are unlikely to be a motivating cause of a defendant's subsequent confession.  Here, Detective Lindsay's remarks were not calculated to exploit anxieties or vulnerabilities that might have arisen had defendant held strong religious beliefs. Religion was not discussed in prior questioning, and defendant stated no particular religious affiliation. Moreover, although the interrogation was lengthy, defendant exhibited no sign of being in a particularly fragile mental state that would render her vulnerable to manipulation by reference to religion."  Internal quotations omitted)

30People v. Musselwhite, 17 Cal.4th 1216, 1240 (1998) ("We agree with the assertion, as far as it goes, that police deception is a factor to be taken into consideration in determining the voluntariness of a confession.  Here, however, the circumstances in which the statements were made by the detectives to defendant, as well as the statements themselves, fall short of what is required to make out a case of prejudicial deception.  Assuming it is true that current laser technology is incapable of successfully lifting identifiable fingerprints from a corpse, it does not follow that telling a murder suspect in the course of questioning that his prints had been lifted from the neck of the homicide victim 'caused' him to confess.   The link between inducement and statement in this case, in other words, falls short of being 'proximate.'"); SEE ALSO Frazier v. Cupp, 394 U.S. 731,739 (1969) [murder case] ("The fact that the police misrepresented the statements that [accomplice] had made is, while relevant, insufficient, in our view, to make this otherwise voluntary confession inadmissible."); People v. Jones, 17 Cal.4th 279 (1998) [death penalty case] ("Nor did the detective's deceptive statements offend any constitutional guaranty. The detective implied at various times that he knew more than he did or could prove more than he could. Such deception regarding the evidence was permissible, for it was not of a type reasonably likely to procure an untrue statement."  Internal citation and quotation omitted)

31People v. Mays, 174 Cal.App.4th 156, 229 (2009) (Regarding the problematic nature of faked tangible evidence as opposed to faked verbal evidence, the court had this to say:"We see no reason to apply a rule that would make the fake graph coercive per se..We feel confident our courts are capable of deciding voluntariness without a bright line making all documents automatically coercive.  While we might view some fake documents as coercive, e.g., a fake search warrant, we see no reason to treat the police misrepresentations differently in this case depending on whether they merely told defendant he failed a polygraph test or told him he failed while showing him a fake graph.  Since the graph merely showed squiggly lines with handwritten notations such as 'intend to lie' and is useless as evidence without testimony from a certified polygraph examiner, there is no risk of its presence in the record being mistaken for a true polygraph test somewhere down the road.  Considering the tangible graph paper as one of the totality of circumstances, we still conclude defendant's statements were voluntary and not coerced.")  BUT SEE People v. Esqueda, 17 Cal.App.4th 1450, 1485, supra ("He was continually lied to about Ana's condition for over an hour.  Thereafter, he was lied to about Ana making dying declarations accusing him of the crime, about Ana's head being burned by gunfire, about finding fingerprints on Ana's neck, about his finger-prints being found on the bullet that killed Ana, about a witness by a dumpster saying Esqueda was the only person to go into the apartment that night, about being investigated for the murder of another person he had known on the streets, and about the gunshot residue evidence showing he shot Ana.  Valle and Penalosa both pleaded with Esqueda about his family, Ana and his children.  They, and Hill, questioned and appealed to his manhood, his religion, and his Hispanic heritage.  They suggested various mitigated and non-mitigated scenarios again and again.  While this by itself could be considered merely pointing out the consequences which would 'naturally flow from a truthful and honest course of conduct,' here the detectives went too far.")

32People v. Ramos, 121 Cal.App.4th 1194, 1203 (2004) [incriminating statement upheld in gang-related attempted murder case] ("Although the indication Ramos would benefit in the judicial process, without more, might be viewed as a promise of leniency, express or implied, however slight, we do not consider the words spoken in a vacuum but in the context of the conversation.  Verlich testified the statement regarding benefit in the judicial process immediately was qualified by the further admonition that Verlich would advise the district attorney of Ramos's level of cooperation, but the district attorney would determine what consideration Ramos would receive in return for his cooperation.  Thus, Verlich's offers of intercession with the district attorney amounted to truthful implications that [Ramos's] cooperation might be useful in later plea bargain negotiations.  Because Verlich only pointed out the benefit that might naturally flow from a truthful and honest course of conduct, Verlich's remarks did not constitute a promise of leniency."  Internal citations and quotations omitted)

33Berghuis v. Thomkins, 560 U.S. ____ (2010), slip op. at 17 [No Miranda violation when suspect did not expressly invoke rights and remained silent for nearly 3 hours before giving incriminating statement] ("In sum, a suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police.  Thompkins did not invoke his right to remain silent and stop the questioning. Understanding his rights in full, he waived his right to remain silent by making a voluntary statement to the police.  The police, moreover, were not required to obtain a waiver of Thompkins's right to remain silent before interrogating him.") Sotomayor, in dissent:"Today's decision turns Miranda upside down.  Criminal suspects must now unambiguously invoke their right to remain silent-which, counterintuitively, requires them to speak.  At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so.  Those results, in my view, find no basis in Miranda or our subsequent cases and are inconsistent with the fair-trial principles on which those precedents are grounded." Id at 23.  SEE ALSO footnote 35, infra (latter part).

34Richard Leo, False Confessions:  Causes, Consequences, and Implications, 37 J. Am. Acad. Psychiatry Law 332 (2009).

35Brandon L. Garrett, The Substance of False Confessions, 62 Stan. Law Rev. 1051 (2010) ("In the cases studied here, innocent people not only falsely confessed, but they also offered surprisingly rich, detailed, and accurate information.  Exonerees told police much more than just 'I did it.' In all cases but two (ninety-seven percent-or thirty-six of the thirty-eight-of the exonerees for whom trial or pretrial records could be obtained), police reported that suspects confessed to a series of specific details concerning how the crime occurred.  Often those details included reportedly 'inside information' that only the rapist or murderer could have known.  We now know that each of these people was innocent and was not at the crime scene.  Where did those details, recounted at length at trial and recorded in confession statements, come from?  We often cannot tell what happened from reading the written records.  In many cases, however, police likely disclosed those details during interrogations by telling exonerees how the crime happened.  Police may not have done so intentionally or recklessly; the study materials do not provide definitive information about the state of mind of the officers.  Police may have been convinced the suspect was guilty and may not have realized that the interrogation had been mishandled.") Garrett's article ALSO HIGHLIGHTS a problem with the shift in coerced confession analysis from reliability-to-voluntariness. ("Beginning in the 1960s, the Supreme Court's Fifth and Fourteenth Amendment jurisprudence shifted.  The Court abandoned its decades-long focus on reliability of confessions.  Instead, the Court adopted a deferential voluntariness test examining the 'totality of the circumstances' of a confession.  The Court has since acknowledged 'litigation over voluntariness tends to end with the finding of a valid waiver.'  Almost all of these exonerees moved to suppress their confessions, and courts ruled each confession voluntary.  The Court supplemented the voluntariness test with the requirement that police utter the Miranda warnings, which if properly provided, as the Court puts it, give police 'a virtual ticket of admissibility.'  All of these exonerees waived their Miranda rights.  All lacked counsel before confessing.  Most were vulnerable juveniles or mentally disabled individuals.  Most were subjected to long and sometimes highly coercive interrogations.  Nor is it surprising that they failed to obtain relief under the Court's deferential voluntariness inquiry, especially where the confessions were powerfully-though falsely-corroborated.  The Court has noted that 'the coercion inherent in custodial interrogation blurs the line between voluntary and involuntary statements, and thus heightens the risk' of constitutional violations.  These false confessions shed light on dangers of coercion during interrogations, but they also provide examples of a different problem in which the line blurred is that between truth and fiction." Id at 1058)

36See Leo, supra ("There are three sequential errors, which occur during a police-elicited false confession, that lead to a wrongful conviction. Investigators first misclassify an innocent person as guilty; they next subject him to a guilt-presumptive, accusatory interrogation that invariably involves lies about evidence and often the repeated use of implicit and explicit promises and threats as well.  Once they have elicited a false admission, they pressure the suspect to provide a postadmission narrative that they jointly shape, often supplying the innocent suspect with the (public and nonpublic) facts of the crime.  These have been referred to as the misclassification error, the coercion error, and the contamination error.")

37Richard A. Leo and Ricahrd J. Ofshe, The Consequences of False Confessions:  Deprivations of Liberty and Miscarriages of Justice in the Age of Psychological Interrogation, 88 J. Crim. L. & Criminology 429, 430 (1997-98).  NOTE THANT even skeptics admit that confession reliability"is an appropriate concern" and call for further study into the existence and extent of police-induced false confessions.  Focusing on police deception, Magid concludes that the "existing evidence [of false confessions] falls well short of establishing the significant problem that has been alleged to exist," but notes that"[s]tatistically sound studies, based on a random sample of confessions to determine how many are false, can and should be done."  Laurie Magid, Deceptive Police Interrogation Practices:  How Far is Too Far? 99 Mich. L. Rev. 1168, 1171 (2000-2001).

38Crowe v. County of San Diego, Case No. 05-55467, supra, at 1594. ("One need only read the transcripts of the boys' interrogations, or watch the videotapes, to understand how thoroughly the defendants' conduct in this case 'shocks the conscience.'  Michael and Aaron-14 and 15 years old, respectively15-were isolated and subjected to hours and hours of interrogation during which they were cajoled, threatened, lied to, and relentlessly pressured by teams of police officers.  'Psychological torture' is not an inapt description..The interrogations violated Michael's and Aaron's Fourteenth Amendment rights to substantive due process.")

39Richard Leo, False Confessions:  Causes, Consequences, and Implications, supra.

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