Sunday, May 18, 2014

Case o' The Week: Cops "Preston" Interrogation Techniques -- Preston En Banc and Involuntary Confessions

Hon. Marsha Berzon

  “The right against compulsory self-incrimination is the mainstay of our adversary system of criminal justice and one of the great landmarks in man’s struggle to make himself civilized.”
   Noble sentiment. And, in our beloved Ninth, also the law. United States v. Preston, 2014 WL 1876269, *6 (9th Cir. May 12, 2014) (en banc) (quotations and citation omitted), decision available here.

Players: Decision by Judge Berzon, joined by Chief Judge Kozinski, Judge Reinhardt, Judge Noonan, Judge Thomas, Judge Graber, Judge Wardlaw, Judge Gould, Judge Baez, Judge Christen, and Judge Watford. Concurring decisions by Judges Graber and Gould.

Facts: Preston was 18 with an IQ of 65. Id. at *1. An 8-year old child of a neighboring family accused Preston of sexual assault. No forensic evidence supported the allegation. Id. at *2. 
  Police interrogated Preston for forty minutes at his home. Id. at *2. They quickly became aware of Preston’s mental disability. Id. Nonetheless, the officers badgered him to admit that he was at his house on the day of the alleged assault until Preston finally agreed (he actually was not). Id. at *3-*4. The officers got him to write out a confession, misleading him as to its purpose. Id. at *5. The officers confronted Preston with a series of questions that required him to choose between two incriminating alternatives – the boy repeatedly chose the least incriminating answer. Id. at *4. Preston filed and lost a suppression motion, then agreed to waive a jury trial. He was convicted of abusive sexual contact after a three day bench trial. Id. at *5. A three-judge panel affirmed, over a compelling dissent by Judge Noonan. See blog here. 

Issue(s): Under the Ninth’s 1991 Derrick v. Peterson decision, must the Court determine “first whether the police’s conduct here was inherently coercive, and, if not, [must the Court hold] the confession voluntary without regard to the likely impact on an individual with Preston’s mental characteristics [?]” Id. at *8.

Held: “[T]o the extent that Derrick held that the issue of police coercion during interrogations must be evaluated without regard to the individual circumstances of the suspect, it cannot be reconciled with prior opinions of this Court or with binding Supreme Court precedent . . . we now explicitly hold that Derrick is no longer good law and overrule it . . . .” Id. at *9. “[T]he officers’ use of the methods employed here to confuse and compel a confession from the intellectually disabled eighteen-year old before us produced an involuntary confession . . . we conclude the district court erred in admitting Preston’s confession.” Id. at *15-*16.

Of Note: Preston is gorgeous legal writing. Read it first to enjoy Judge Berzon’s practical explanation of why we care about the voluntariness of confessions, and her admonitions about the rigor required for the analysis. See id. at *8 (explaining that it is irrelevant to the question of voluntariness whether the confessor in fact spoke the truth).
 Then read it again for a seminal new rule: the defendant’s individual characteristics now matter at the outset of the voluntariness inquiry. This is a major development – Preston is a must-read.

How to Use: The “Reid Technique” teaches interrogation to cops. Id. at *12, see also the Reid web page here. The officers here used Reid interrogation techniques. Id. When the three-judge panel affirmed this shoddy interrogation, Reid posted the decision on its web page
  In this en banc decision, Judge Berzon carefully dissects the “Reid technique” and hammers the officers’ deviations from the manual. Id. at *12. It is a beautiful script for a cross (with an en banc imprimatur). Buy the Reid manual, read Preston at *12 - *15, remind your D.J. that the jury shall hear relevant evidence on the issue of voluntariness, 18 U.S.C. § 3501(a), and look forward to crossing the interrogating cop at trial.
For Further Reading: Preston’s single most important fact? The officers “began recording their interaction with Preston within ‘one or two minutes’ of approaching him.” Id. at *2, *9. Without that recording, the Court would have never known the extent of the coercion in the case – this mentally-disabled kid would have lost a swearing match with the police in an evidentiary hearing. 
   This is a second time in only a month that the recording of a confession gave the Ninth the true facts of the case – and revealed the real abuses that go on with interrogations. See blog on Ramirez-Estrada, here
   It is travesty that federal agents are still allowed to not record confessions.  For a blunt indictment of this shameful practice, see a compelling commentary here

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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