KYSC - Law Enforcement Cannot Question a Defendant Represented by Counsel

Kentucky Rejects Montejo v. Louisiana under Section 11 of the State Constitution, retains Michigan v. Jackson rule. 

Keysor v. Commonwealth, 2013-SC-531

In Michigan v. Jackson, 475 U.S. 625 (1986), the United States Supreme Court said that after a defendant asserts his right to counsel “at an arraignment or similar proceeding,” any waiver of that right at any subsequent police-initiated interrogation is invalid.  This was an important protection of the right to counsel.  Jackson was adopted by the Kentucky Supreme Court in Linehan v. Commonwealth, 878 S.W.2d 8 (Ky. 1994).  

In 2009,  Jackson was overturned by Montejo v. Louisiana, 556 U.S. 778 (2009). In Montejo, the Supreme Court decided that a defendant, charged with murder and represented by counsel, may nevertheless be approached by police for interrogation without the knowledge or presence of his attorney as long as the police obtain a Miranda waiver.  

In this case, the defendant entered a conditional guilty plea, urging the Kentucky Supreme Court to retain the Jackson rule on state constitutional grounds. The court reversed, stating “[a]lthough our embrace of Jackson in Linehan did not explicitly reference Section 11 of the Kentucky Constitution, we implicitly found Jackson to be in accord with the right to counsel under Section 11 and we expressly do so now.” “Moreover, maintaining and protecting the integrity of the attorney-client relationship is an important public policy of this Commonwealth.” As such, the court rejects the Montejo rule allowing law enforcement to question a defendant represented by counsel.

The trial attorney was David Perlow.  Represented on appeal by  Erin Hoffman Yang

COA - AKM - Right against self-incrimination during school questioning

A.K.M. v. Commonwealth, 212-CA-1190 (not yet final)(not to be published): 

AKM was interrogated twice while at school regarding an alleged theft of $20-$40 from the teacher’s lounge.  The first interrogation was conducted by the school principal while an officer, who was at the school initially on an unrelated matter, was in the next room. After AKM admitted to taking the money to the Principal, he was brought to the police officer who informed him of his Miranda rights and questioned him again, yielding a second confession. During the second interrogation AKM repeatedly stated that he did not want to tell on himself.  

The Appellant raised several issues on appeal, including that the first interrogation violated Miranda under N.C. and Welch because the purpose of the questioning was to gather evidence for a criminal prosecution, that the second confession was tainted and coerced, and that the Appellant asserted his right to remain silent during the second interrogation.  The Court of Appeals found that Miranda warnings were not necessary for the first interrogation because, distinguishing from N.C., the principal was “acting only as a principal investigating a school disciplinary matter” and there was no evidence that the principal was acting in concert with the police officers.  As to the second interrogation, the Court found that AKM was in custody at the time of the police interrogation and had invoked his right to remain silent by stating, “I don’t want to tell on myself” and that continued questioning violated the 5^th amendment.  The Court found this statement to be a clear articulation of the desire to remain silent and reversed.  Judge Thompson wrote the opinion with Dixon concurring and Caperton dissented (no written dissenting opinion).

Contributed by Renee VandenWallBake

KYSC - Buster - State Actor & Custody for Interrogation

Buster, Kenneth – 11-SC-92 & 11-SC-93 – To Be Published – Hart County – Affirmed.

The Kentucky Supreme Court held that a Cabinet Social Worker who interviewed a prison inmate about a new investigation was a cooperative state actor for purposes of a Miranda analysis. However, given recent SCOTUS precedent in Howes v. Fields, U.S. , 132 S. Ct. 1181, 1188-89 (2012), under the totality of circumstances a majority of the Court did not believe Appellant was in custody for the interrogation. Justices Noble and Minton dissented, noting that “generally, the inmates are not in charge of when they may come and go.”

Contributed by Linda Horsman

KY COA March 30th -Bell- Statement by Juvenile in School

Commonwealth v. Bell; and T.C.
11-CA-562, Rendered March 30, 2012; To be published

The Commonwealth appealed a denial of a writ of prohibition seeking to overturn the suppression of a thirteen-year old boy’s statement in a first degree sodomy case in Fayette County District Court. The Court of Appeals affirmed the suppression, finding that even though the detectives did not deprive T.C. of sleep, food, had Mirandized T.C., and had used a calm conversational tone, these factors do not provide the same assurance of voluntariness in a thirteen year old as it does for an adult. 

The Court of Appeals focused on the fact that T.C. was interrogated at school, stating, “The fact is a school is where compliance with adult authority is required and where such compliance is compelled almost exclusively by the force of authority. Like it or not, that is the definition of coercion.”  The Court found that the Detective’s questioning in the school setting made it reasonable to believe that T.C. felt he had to say “something, whether true or not.” Further, it was unreasonable that T.C. would believe he had the right to say nothing and get up and leave the interrogation.

The Court noted, “T.C., alone, was ordered by school officials into a room, facing adult authority figures with considerable power, who also feigned superior knowledge (“I know what happened [and your cousin] has not lied to me about anything”), and who repeatedly demanded answers that he, if he was to be an obedient child, would have to provide.  How could T.C. not perceive such a situation as subjectively coercive?”

Note that the Court of Appeals did not cite the recent U.S. Supreme Court case J.D.B. v. North Carolina, 131 S.Ct. 2394 (2011), in making its decision.  The J.D.B. decision provides additional support for suppressing a juvenile’s statement when it is made in a school setting since it discusses the viewpoint of a child interrogated at school and requires consideration of a defendant’s age when determining if the child was in custody under Miranda.

Contributed by Robert Yang

The Jury Expert - Police Deception during Interrogation and Its Surprising Influence on Jurors' Perceptions of Confession Evidence

Police Deception during Interrogation and Its Surprising Influence on Jurors' Perceptions of Confession Evidence
by Krista D. Forrest, William D. Woody
Krista Forrest and William D. Woody review the literature on police deception in interrogation and review a recent study of juror perceptions and decisions in cases involving confessions and police deception. Two experienced trial consultants respond with reactions based on years of experience in this area.

Full Article

Recommendations from the authors

Our improved understanding of jurors' perceptions of and decisions about cases involving police deception during interrogation suggests a series of practical recommendations for litigators. What factors should attorneys consider when going to trial in the cases involving confessions and police deception during interrogation?

1.  Defense attorneys should attempt to introduce an expert witness in the area of false confessions to educate jurors about the little-known, manipulative, and potentially deceptive nature of police interrogation. Rather than focusing primarily on the defendant, we recommend that defense attorneys focus instead on how interrogation strategies in general and false-evidence ploys in particular have been shown to influence voluntariness and even elicit false confessions in laboratory studies and archival cases.

2.  If the interrogation includes police deception in general or false-evidence ploys in specific, defense attorneys should interview the police officers who interrogated the defendant. Defense attorneys should assess the extent to which these deceptive techniques are considered typical in that officer's working climate and the degree to which deception is involved, if at all, in the particular case.

3.  If audio or video evidence of the interrogation has not been suppressed and the interrogators used false-evidence ploys, defense attorneys should identify and discuss each ploy for the jury.

4.  In addition to explicit false-evidence ploys, as discussed in this paper, in which investigators explicitly claim to have nonexistent evidence, we also encourage defense attorneys to seriously evaluate implicit false-evidence ploys, called bait questions by Inbau et al. (2001) and Jayne and Buckley (1999). Inbau et al. (2001) state that an implicit false-evidence ploy "is nonaccusatory in nature but at the same time presents to the subject a plausible probability of the existence of some evidence implicating him in the crime" (p. 193). For example, if a suspect has denied that he or she was near the crime scene, an investigator might ask whether the suspect would appear on a hidden camera at the scene without directly claiming that such a recording exists or has been evaluated by police. In an implicit false-evidence ploy there is not an explicit lie about evidence, and legal scholars and social scientists have only recently begun to examine these deceptive interrogation tactics (Gohara, 2006, Forrest, Woody & Hille, 2010; Perillo & Kassin, 2010). Explicit and implicit claims of evidence are legally distinct. For example, Inbau et al. (2001) and Jayne and Buckley (1999) extensively discuss and defend the legality of explicit false-evidence ploys, but neither examines the legality of implicit false-evidence ploys. Despite these distinctions, both explicit and implicit false-evidence ploys induce false confessions at similar rates (Perillo & Kassin, 2010), and jurors cannot distinguish between them (Forrest et al., 2010). In other words, even if investigators used a seemingly less deceptive implicit false-evidence ploy, defense attorneys should have the same concerns that they would have regarding an explicit false-evidence ploy.

5.  Prosecutors should advise police detectives about the potential trial outcomes that stem from deception during interrogation. Not only do false-evidence ploys increase the likelihood of false confessions in experimental studies as well as in the archival data, false-evidence ploys may also lead a jury to perceive the interrogation as more deceptive and coercive. Police deception only marginally decreased the likelihood of conviction in this study, but these changes in jurors' perceptions of deception and coercion raise important concerns. If police interrogators know that deception may reduce the chance of a conviction and lead to shorter sentences for confessing defendants, interrogators may choose to avoid deception during interrogation to reduce these risks. We have an ongoing study to evaluate whether judges are subject to these biases in sentencing.

6.  When appropriate, voir dire should include questions concerning false confessions and the degrees to which jurors see themselves and others as capable of making a false confession. As we found, jurors who believe that false confession is possible for others or for themselves are less likely to convict than are jurors who believe the myth of psychological interrogation (Woody et al., 2010).

7.  Although the study discussed here assessed jurors' perceptions and decisions, we recommend that judges use caution when deciding whether to admit disputed confessions into trial, particularly when a confession follows police deception. We raise these concerns here due to potential effects on jurors, but we strongly recommend that judges consider the experimental and archival evidence that demonstrates that false confession becomes more likely when interrogators use false-evidence ploys (Stewart, Woody, & Pulos, 2010).