[A] system of criminal law enforcement which comes to depend on the “confession” will, in the long run, be less reliable and more subject to abuses than a system which depends on extrinsic evidence independently secured through skillful investigation.” Escobedo v. Illinois, 378 U.S. 478, 488-89 (1964).
“[F]alse confessions are [a] leading cause of wrongful convictions[.]” State v. Lawrence, 920 A.2d 236, 266–67 (2007)(Katz, J., dissenting)(citing R. Leo, S. Drizin & P. Neufeld et al., Bringing Reliability Back In: False Confessions and Legal Safeguards in the Twenty-First Century, 2006 Wis.L.Rev. 512 (2006). “False confessions are most common among the most vulnerable groups of defendants—juveniles and people with mental disabilities. Id. “Individuals who are deaf are especially susceptible to offering false confessions. When they fail to understand what is asked of them, they often accede to what they do not understand, especially when confronted by a person in authority.” “Individuals with Disabilities and the Issue of False Confessions,” 26 Champion 34, 38 (July 2012).
“Just Want to Get Your Side of the Story”
“[C]ontemporary interrogation strategies . . . are based on the manipulation and betrayal of trust.” Richard A. Leo, Miranda’s Revenge: Police Interrogation as a Confidence Game, 30 L. & Soc’y Rev. 259, 259–60 (1996)(studying five hundred hours of police interrogations). “The purpose of interrogation is therefore not to discern the truth, determine if the suspect committed the crime, or evaluate his or her denials . . . [T]he single-minded purpose of interrogation is to elicit incriminating statements, admissions, and perhaps a full confession in an effort to secure the conviction of offenders.” Fred E. Inbau et. al., Criminal Interrogation and Confessions 8 (4th ed. 2001). This reality is at least recognized, if not enforced, by the Supreme Court of the United States. Miranda v. Arizona, 384 U.S. 436, 449–55 (1966)(police “persuade, trick, or cajole him out of exercising his constitutional rights”). Welcome to the accepted Texas method of interrogation commonly referred to as the “Reid Technique.”
If you are the police, it is easy to exercise. First isolate the person, then assert with certainty his guilt (“we already know, we’ve got witnesses, we’ve got the crime scene evidence, we’ve got the DNA”). Next, make a sympathetic offer of blame-shifting (“I believe you. I really do. So, he was doing most of it?”) or minimization (“You hardly had anything to do with the offense. She did it to you. I feel for you”). When the person still protests his innocence, reject them with confidence and finality (“Hey, we’re past that. You’ve already admitted. We both agree we’ve got the evidence. You’re guilty. Sorry, but under the law, you just are—wish I could change it. It’s no longer open for debate”). After psychological domination is complete, have the person endorse the narrative with his own signature or affirmation. The technique is so effective that ordinary people, even those who know the technique is being employed against them, will endorse false confessions. But some people are more vulnerable than others.
Supreme Court Recognition
This reality is no revelation at this late date, as the Supreme Court long ago reviewed:
The officers are told by the manuals that the “principal psychological factor contributing successful interrogation is privacy—being alone with the person under interrogation.” The efficacy of this tactic has been explained as follows:
“If at all practicable, the interrogation should take place in the investigator’s office or at least in a room of his own choice. The subject should be deprived of every psychological advantage. In his own home he may be confident, indignant, or recalcitrant. He is more keenly aware of his rights and more reluctant to tell of his indiscretions or criminal behavior within the walls of his home. Moreover, his family and other friends are nearby, their presence lending moral support. In his own office, the investigator possesses all the advantages. The atmosphere suggests the invincibility of the forces of the law.”
To highlight the isolation and unfamiliar surroundings, the manuals instruct the police to display an air of confidence in the suspect’s guilt and from outward appearance to maintain only an interest in confirming certain details. The guilt of the subject is to be posited as a fact. The interrogator should direct his comments toward the reasons why the subject committed the act, rather than court failure by asking the subject whether he did it. Like other men, perhaps the subject has had a bad family life, had an unhappy childhood, had too much to drink, had an unrequited desire for women. The officers are instructed to minimize the moral seriousness of the offense, to cast blame on the victim or on society. These tactics are designed to put the subject in a psychological state where his story is but an elaboration of what the police purport to know already—that he is guilty. Explanations to the contrary are dismissed and discouraged.
The texts thus stress that the major qualities an interrogator should possess are patience and perseverance. One writer describes the efficacy of these characteristics in this manner:
In the preceding paragraphs emphasis has been placed on kindness and stratagems. The investigator will, however, encounter many situations where the sheer weight of his personality will be the deciding factor. Where emotional appeals and tricks are employed to no avail, he must rely on an oppressive atmosphere of dogged persistence. He must interrogate steadily and without relent, leaving the subject no prospect of surcease. He must dominate his subject and overwhelm him with his inexorable will to obtain the truth. He should interrogate for a spell of several hours pausing only for the subject’s necessities in acknowledgment of the need to avoid a charge of duress that can be technically substantiated. In a serious case, the interrogation may continue for days, with the required intervals for food and sleep, but with no respite from the atmosphere of domination. It is possible in this way to induce the subject to talk without resorting to duress or coercion. The method should be used only when the guilt of the subject appears highly probable.
The manuals suggest that the suspect be offered legal excuses for his actions in order to obtain an initial admission of guilt. Where there is a suspected revenge-killing, for example, the interrogator may say:
“Joe, you probably didn’t go out looking for this fellow with the purpose of shooting him. My guess is, however, that you expected something from him and that’s why you carried a gun—for your own protection. You knew him for what he was, no good. Then when you met him he probably started using foul, abusive language and he gave some indication that he was about to pull a gun on you, and that’s when you had to act to save your own life. That’s about it, isn’t it, Joe?”
Before the Mutt-Jeff routine, the Supreme Court noted the effectiveness of developing “inconsistencies” which “serve to deprive” the defendant of a defense. As any practitioner knows, this technique is employed in most roadside investigations, whatever the pretense of enforcement of Transportation Code infractions. Miranda v. Arizona, 384 U.S. 436, 449–63 (1966).
A confession is deemed voluntary if it is “the product of an essentially free and unconstrained choice,” but “if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.” Schneckloth v. Bustamonte, 412 U.S. 218, 225–26 (1973). See also Culombe v. Connecticut, 367 U.S. 568, 602 (1961)(confession must be “product of an essentially free and unconstrained choice” to be voluntary); Rogers v. Richmond, 365 U.S. 534, 544 (1961)(decision to confess must be “freely self-determined”); Blackburn v. Alabama, 361 U.S. 199, 208 (1960)(“product of a rational intellect and a free will”). “[C]oercion can be mental as well as physical, and . . . the blood of the accused is not the only hallmark of an unconstitutional inquisition.” Blackburn v. Alabama, supra at 206. See also Reck v. Pate, 367 U.S. 433, 440–441 (1961); Watts v. Indiana, 338 U.S. 49, 52 (1949).
When the issue is raised, the State bears the burden of proving a statement deemed incriminating was voluntarily given. See Alabama v. Beecher, 389 U.S. 35 (1967); Clewis v. Texas, 386 U.S. 707 (1967); Blackburn v. Alabama, supra. “The aim of the requirement of due process is not to exclude presumptively false evidence, but to prevent fundamental unfairness in the use of evidence, whether true or false.” Lisenba v. California, 314 U.S. 219, 236 (1941).
The Need for Defense Counsel Alertness and Protection
People are more vulnerable than ever before, due to the weakening of constitutional protections against coerced confessions. In 2010, the Supreme Court of the United States held that it is not enough for a person to remain silent after having been informed of his Miranda right to do so. He must affirmatively invoke his right to silence. Otherwise the police are free to interrogate. Berghuis v. Thompkins, 560 U.S. 370 (2010). The same year, the Court created a 14-day period for police to have another go at a defendant who has previously invoked his right to silence to do so again. Maryland v. Shatzer, 559 U.S. 98 (2010).
People with disabilities are even more vulnerable than the general population, as studies have shown.
In the group of sixty-six false confessions, twenty-three were juveniles, and at least twenty-two had an intellectual disability or were mentally ill . . . This tracks the pattern among the first forty such false confessions, in which fourteen had an intellectual disability, three were mentally ill, and thirteen were juveniles . . . Still others among these exonerees, while not diagnosed with such a disability at the time of trial, may have been quite suggestible or may have not been diagnosed because the defense did not retain experts.
Brandon L. Garrett, Contaminated Confessions Revisited, 101 Va. L. Rev. 395, 399–400 and n.18 (2015). In another study of 125 confessions later proven false, almost 30% came from a person with at least one mental disability. Steven A. Drizin & Richard A. Leo, The Problem of False Confessions in the Post-DNA World, 82 N.C. L. Rev. 891, 970–73 (2004). In another, 43% of people exonerated by DNA and who gave false confessions had some form of disabilities. Brandon L. Garrett, The Substance of False Confessions, 62 Stan. L. Rev. 1051, 1095 (2010).
The consensus of those who serve the deaf community appears to be that the mean reading level of deaf persons in the United States is approximately fourth grade[.] Having a high-school diploma may or may not indicate an adequate ability to read and understand written documents, nor may possession of a driver’s license so indicate, as the licensing test may have been interpreted for the deaf person.
Linton v. State, 275 S.W.3d 493, 510 n.2
(Tex.Crim.App. 2009)(Johnson, J., concurring).
If the accused is a deaf person, the accused’s statement under Section 2 or Section 3(a) of this article is not admissible against the accused unless the warning in Section 2 of this article is interpreted to the deaf person by an interpreter who is qualified and sworn as provided in Article 38.31 of this code.
Tex. Code Crim. Pro. art. 38.22, Sec. 3(d).
Constitutional Right to an Interpreter
The right to an interpreter is based in part on the Sixth Amendment’s Confrontation Clause. Garcia v. State, 149 S.W.3d 135, 142 (Tex.Crim.App. 2004)(reversing conviction of defendant who did not understand English and had no translator on basis of Sixth Amendment). But the right is also based on the Fourteenth Amendment’s Due Process Clause as well. “Considerations of fairness, the integrity of the fact-finding process, and the potency of our adversary system of justice forbid that the state should prosecute a defendant who is not present at his own trial[.]” United States ex rel. Negron v. New York, 434 F.2d 386, 389 (2nd Cir. 1970). Prince v. Beto, 426 F.2d 875, 875 (5th Cir. 1970)(appointment of husband of deaf wife as interpreter violated the Due Process Clause).
Interpreter Qualifications: Licenses and Certifications
Section 57.002 of the Government Code and article 38.30 of the Code of Criminal Procedure govern the appointment of interpreters. Article 38.31 specifically governs deaf interpreters.
The interpreter must be licensed by the Department of Assistive and Rehabilitative Services. A deaf interpreter must be certified by the Department of Assistive and Rehabilitative Services. An interpreter for the deaf is qualified if she holds a current legal certificate issued by the National Registry of Interpreters for the Deaf or a current court-interpreter certificate issued by the Board for Evaluation of Interpreters at the Department of Assistive and Rehabilitative Services.
The court in small counties (less than 50,000) or counties that border Mexico may appoint an unlicensed or uncertified spoken-language court interpreter if the language is other than Spanish and there is no licensed court interpreter within 75 miles. Under these circumstances, the interpreter must be at least 18 years old, not a party, and must be qualified by the court as an expert under the Texas Rules of Evidence.
The Health and Human Services Commission creates the rules for the qualifications, training/education, certification, and compensation of certified court interpreters. A violation of the Commission’s rules is a Class A misdemeanor.
No proceeding involving a deaf person may commence “until the appointed interpreter is in a position not exceeding ten feet from and in full view of the deaf person.” Tex. Code Crim. Pro. art. 38.31(d).
“The interpreter may not disclose a communication between the defendant and defense counsel or a fact that came to the attention of the interpreter while interpreting those communications if defense counsel may not disclose that communication or fact.” Tex. Code Crim. Pro. art. 38.31(d).
Competency of Interpreters
The competency of an individual to act as an interpreter is a question for the trial court, and the trial court’s determination of the individual’s competency is reviewed on appeal under an abuse of discretion standard. Martins v. State, 52 S.W.3d 459, 470 (Tex. App.—Corpus Christi 2001, no pet.); Kan v. State, 4 S.W.3d 38, 41 (Tex. App.—San Antonio 1999, pet. ref’d). The accuracy of an interpreter’s translation is a question of fact for the factfinder and not reviewable by an appellate court. Kan, 4 S.W.3d at 43. An unqualified interpreter can result in reversible error. Watson v. State, 596 S.W.2d 867 (Tex.Crim.App. 1980).
Trial Court and Defense Duties Regarding Interpreters
A judge who knows a witness cannot understand English must appoint an interpreter unless the defendant affirmatively waives the appointment. Garcia v. State, 429 S.W.3d 604, 606–07 (Tex.Crim.App. 2014). Similarly, if a motion for appointment of an interpreter is filed by the State or defendant or requested by a witness, the trial court must appoint an interpreter. Consequently, the defendant does not need to do anything else to preserve the issue for appeal. Id. “Courts have found the absence of an interpreter violated due process where the defendant’s inability to understand the proceeding or an element of the proceeding resulted in the denial of a fundamental right.” State v. Calderon, 13 P.3d 871, 876 (Kan. 2000).
The defense must make an objection regarding a complaint regarding the competency of an interpreter appointed by the trial court or the issue is waived. Montoya v. State, 811 S.W.2d 671, 673 (Tex.App—Corpus Christi 1991, no pet.).
Questions for Interpreters
- Are you licensed or certified?
- What agency licensed or certified you?
- When was the last time you were certified?
- How many times have you been certified?
- Has your license ever been suspended?
Juveniles are recognized as a group that requires specific safeguards against the perils of custodial interrogation. Tex.Family Code Ann. § 151.003 and § 262.104; Juvenile Justice Code, § 54.03 and § 51.09. In one study, over 30% of 103 juveniles proven innocent through DNA had falsely confessed, and over half of the eleven- to fourteen-year-old group had confessed falsely. Joshua A. Tepfer, Laura H. Nirider & Lynda M. Tricarico, Arresting Development: Convictions of Innocent Youth, 62 Rutgers L. Rev. 887, 904–05 (2010).
The Court of Criminal Appeals has said:
In deciding whether a particular interrogation was custodial, courts must consider numerous factors[.] . . . The subjective intent of the police officer is one such factor, but courts will disregard an officer’s testimony that a defendant was not a suspect and not in custody if the testimony is belied by the facts of the case. . . . “The courts cannot be expected to decide cases solely on the basis of self-serving statements by the defendant or the interrogating officer.” .Ê.Ê. Among the other factors which may be considered, one which “has consistently impressed our court [is] whether or not the focus of the investigation has finally centered on the defendant.” . . . Another factor which may be considered is whether there was probable cause to arrest.
Ruth v. State, 645 S.W.2d 432, 435 (Tex.Crim.App. 1979)(internal citations omitted). The Court of Criminal Appeals outlined at least four general situations which constitute custody:
(1) when the suspect is significantly deprived of his freedom of action in any significant way; (2) when a law enforcement officer tells a suspect that he cannot leave; (3) when law enforcement officers create a situation that would lead a reasonable person to believe that his freedom of movement has been significantly restricted; and (4) when there is probable cause to arrest and law enforcement officers do not tell the suspect that he is free to go.
Dowthitt v. State, 931 S.W.2d 244, 254 (Tex.Crim.App. 1996).
Some courts have found it appropriate to “apply a wider definition of custody for Miranda purposes” where juveniles are concerned. See, e.g., In re Joshua David C., 116 Md. App. 580, 698 A.2d 1155 (Md.App. 1997). The voluntariness of juvenile confessions is gauged according to the totality of circumstances. Fare v. Michael C., 442 U.S. 707, 725 (1979). Accordingly, a defendant’s age should be included in any legal analysis of whether she was in custody for purposes of her entitlement to constitutional and statutory protections against coerced statements.
[W]hen . . . a mere child—an easy victim of the law—is before us, special care in scrutinizing the record must be used.
He cannot be judged by the more exacting standards of maturity. That which would leave a man cold and unimpressed can overawe and overwhelm a [child] in his early teens. This is the period of instability which the crisis of adolescence produces. A 15-year-old . . . is a ready victim of the inquisition. Mature men might possibly withstand the ordeal. . . . But we cannot believe that a [child] of tender years is a match for police in such a contest.
Haley v. Ohio, 332 U.S. 596, 599–600 (1948)(reviewing confession of a 15-year-old interrogated for 15 hours by police relay teams). Due process accordingly requires that “the greatest care must be taken to assure that the admission was voluntary, on the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of right or of adolescent fantasy.” Matter of Gault, 387 U.S. 1 (1967). See also Gallegos v. Colorado, 370 U.S. 49, 53–55 (1962)(five days of isolating 14-year-old from mother or other adult, deemed coercive).
“[W]e cannot ignore the fact that in recent years a disturbing number of inmates on death row have been exonerated. As two recent high-profile cases demonstrate, these exonerations include mentally retarded persons who unwittingly confessed to crimes that they did not commit.” Atkins v. Virginia, 536 U.S. 304, 320 n.25 (2002)(citations omitted).
Previously identified with the stigmatizing term “mentally retarded,” the preferred term used today is “intellectually disabled” or “intellectual developmental disorder.” The Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), defines the terms as a disorder with onset during person’s developmental period that features “intellectual functioning deficits” (i.e., difficulties in school and learning from experience, reasoning and problem solving, abstract thinking, and judgment) and “adaptive functioning deficits” (i.e., “failure to meet developmental and sociocultural standards for personal independence and social responsibility”).
There are four levels of intellectual disability severity: profound, severe, moderate and mild. Three of these categories—profound, severe, and moderate—are so bad, the people in them are the least likely to ever have contact with the criminal justice system. If these people are ever arrested and accused, there are issues of incompetency to stand trial, among others, that result in a treatment not easily traceable. They are the minority of people who are so disabled.
People with a profound intellectual disability (1–2%) fall below an IQ of 20–25. It hardly takes an expert to perceive this level of disability, as they can hardly express themselves verbally, among other very extreme deficits. People at the “severe” level (3–4%) have a slightly higher IQ range (between 20 and 40) than the “profound.” Like their even more disabled counterparts, they don’t understand numbers, can’t tell time or count money. They have limited language and must be helped with bathing, eating, and dressing themselves. A greater number (10%) fall within the “moderate” range with IQs at 35–55. Those in the moderate range can actually become independent on basic household chores and with personal care. With great support from family coworkers and other helpers, they can even work and manage money.
But the vast majority—about 85%—fall within the “mild” range (50–70). These are exactly the people who will be crushed by the criminal justice system because they don’t look like the character “Lennie’ from John Steinbeck’s Of Mice and Men. It is easy to believe the person is “just playing dumb.” Police and prosecutors who believe it have little difficulty convincing juries. As the “Making a Murderer” shows, it convinces judges as well.
“Making a Murderer”—Interrogation of Brendan Dassey
The Netflix documentary showed the repeated interrogation of a 16-year-old special education student, Brendan Dassey, with an IQ between 74 and 81 and described as “highly suggestible, docile, withdrawn, with extreme social anxiety and social avoidant characteristics, and more suggestible than 95% of the population.” Dassey v. Dittmann, 860 F.3d 933, 938–39 (7th Cir.), reversed, 877 F.3d 297 (7th Cir. 2017)(en banc). It is better observed on the videotape.
[Police Interrogators]: What else did he do to her? We know something else was done. Tell us, and what else did you do? Come on. Something with the head. Brendan?
Brendan: Huh? . . .
[Police Interrogators]: What else did you guys do, come on. . . .
[Police Interrogators]: We have the evidence, Brendan, we just need you ta, ta be honest with us.
Brendan: That he cut off her hair.
[Police Interrogators]: He cut off her hair? In the house?
Brendan: mm-huh. . . .
[Police Interrogators]: OK, what else?
[Police Interrogators]: What else was done to her head?
Brendan: That he punched her.
[Police Interrogators]: What else? [pause] What else? . . .
[Police Interrogators]: What did he make you do, Brendan? It’s okay. What did he make you do?
Brendan: Cut her.
[Police Interrogators]: Cut her where?
Brendan: On her throat. . . .
[Police Interrogators]:: What else happens to her in her head? . . .
[Police Interrogators]: Come on, Brendan, what else?
[pause] [Police Interrogators]: We know, we just need you to tell us.
Brendan: That’s all I can remember.
[Police Interrogators]: All right, I’m just gonna come out and ask you. Who shot her in the head?
Brendan: He did.
[Police Interrogators]: Then why didn’t you tell us that?
Brendan: Cuz I couldn’t think of it.
[Police Interrogators]:: Now you remember it? [Brendan nods “yes”]. Tell us about that then.
Interrogated with Intellectual Disabilities: The Risks of False Confession, 70 Stan. L. Rev. 643, 669–680 (2018).