Articles Posted in Confessions

Can a failure to file a pretrial motion equal ineffective assistance of counsel?  The BLUF is yes in some cases.  In some instances I have argued IAC on appeal for failing to make a meritorious motion.  The NMCCA has issued an interesting opinion in United States v. Spurling, in which they discuss this important issue.  The opinion appears to be an en banc one although not labeled as such – Sr. Judge Ward writes for a majority of five, with three dissenters in an opinion written by Judge King.  The issue of IAC for failure to raise a pretrial motion is neither novel nor rare.  Many of my appellate clients raise a question about why the defense counsel didn’t fil a particular motion.  I am about to file one in a case (citing United States v. Grostefon) where the client complains that the defense counsel did not file a motion to dismiss certain charges.  A more common issue is a motion to suppress, or speedy trial, or UCI.

  1. Spurling claimed IAC because his counsel did not litigate his admissions. Interestingly both counsel admitted they didn’t even catch the issue:  [Counsel] failed to “recognize the issue based on [her] lack of experience, the work load at the time, and never having argued an Article 31 issue[.]”
  2. Capt B concurs, stating that had the issue occurred to him “[he] would have proposed filing it.”
  3. Both TDC acknowledge that it was not until after participating in a post-trial debrief with the military judge, who asked whether they had filed a suppression motion, that they recognized the issue.

So how is this admitted “failure” to be reviewed. The court states the standard as a need to show a reasonable probability the motion would be a success, and this must be a substantial chance, not a mere probability. United States v. Jameson, 65 M.J. 160 (C.A.A.F. 2007); United States v. McConnell, 55 M.J. 479, 482 (C.A.A.F. 2001).  Without this finding, there is no IAC even if there is an error, because there is no prejudice.  However, the dissenters, expressed through Judge King would set aside the findings and sentence on the IAC issue. The court then goes into the ongoing issue of when is a person acting within a official capacity. Finding no substantial likelihood of success on the motion the court finds no harmful and prejudicial error.  There has been some discussion already on the requirement to advise a person of their Article 31, UCMJ, right to silence.

Expect to see Spurling at CAAF, potentially as a trailer.

Spurling wins something on the inappropriate sentence – a set aside of the BCD.

Do you have to raise every single motion?  No.

Do you have to raise every single motion the client asks you to?  No.

I wonder what the MJ would have done if the counsel had asked for a post-trial session to litigate the motion at that time, if for no other reason than to make a record for appeal?  We know the MJ can hold such a hearing.


Prosecutors ask CID, NCIS, OSI, CGIS agents all the time why they didn’t believe the accused in the interrogation.  The answer often is a variant of, “he was nervous.”

Yeah, right.

First they are told and usually escorted to the LE office.  The escort won’t tell them why or what’s going on.  They then have to wait the appropriate time in the waiting area to heighten the tension.  I was reminded of this by a post from fourth amendment blog.

Continuing defendant’s open container stop for a beer can because he was nervous was unreasonable. “[L]ights and sirens at three o’clock in the morning could make a saint nervous without shedding any light at all on whether there was alcohol in the can.” United States v. Hemingway, 2013 U.S. Dist. LEXIS 34517 (D. D.C. March 13, 2013).*

I think the same applies to law enforcement interrogations.  A blog starts out:

Talking with police officers is usually one of the more stressful encounters we have in our lives, and one that we typically avoid at all costs. Even when we’ve committed no crime, it can be nerve racking, but when we’re guilty it’s much worse.

Of course there are other “indicia” offered as to why they disbelieved the accused.  But, cautions those guru’s of interrogation (The Reid):

In conclusion, because laughter and humor relieve anxiety, it is common for both truthful and deceptive suspects to engage in these behaviors during an interview. The mere presence of laughter or attempted humor during an interview should not be considered a behavior symptom of deception.

The Reid also points out that:

Furthermore, when accused of wrong-doing, the tendency to deny opportunity, access, motive and propensity occurs within both innocent and guilty suspects.

You can read more about interrogations at The Reid.  Why is it valuable for a defense counsel to read The Reid.  Well of course it’s an aid in understanding how law enforcement may have coerced a confession, or got it wrong.  But, it’s also an invaluable guide in how you interview your own client and witnesses.  I’m not saying you become an investigator or accusatory toward your client or witnesses.  The idea of interrogation techniques is to get information.  I know law enforcement is only looking for the confession, but you have a broader purpose.

The Reid’s final caution today is:

Some research has attempted to identify specific cues associated uniquely with lying (nature of eye contact, micro tremors in the voice, unique facial expressions, etc.). These efforts have not produced accuracies much above chance levels. . . . Not all innocent or guilty suspects respond exactly the same way when questioned about a crime. . . .  In conclusion, many laboratory studies investigating the validity of behavior symptom analysis are flawed because they attempt to identify specific behaviors that reveal truth or deception; indeed, there are no behaviors unique to truth or deception.

Of course that leads to my favorite law enforcement response – confirmation bias.

Eyewitness Memory for People and Events (Chapter 25)

Gary L. Wells

Iowa State University, Department of Psychology

Elizabeth F. Loftus

University of California, Irvine – Department of Psychology and Social Behavior
January 16, 2013
Handbook of Psychology, Vol. 11, 2013, Forensic Psychology, Chapter 25, R.K. Otto and & I.B. Weiner (Eds), Hoboken, NJ: John Wiley & Sons, Inc.
UC Irvine School of Law Research Paper No. 2013-88

This chapter begins with a summary of the case of Thomas Brewster, who was tried for murder based in large part on eyewitness testimony. Ultimately DNA came to Brewster’s rescue, and he was freed before the trial ended. Analyses of taped interviews in the case help reveal how the interviewing process itself may have tainted the eyewitness testimony. The chapter continues with discussions of new psychological research on memory for complex events. This work shows how the details of events can be changed when witnesses are exposed to post-event information that is misleading. And with enough suggestion, entire events can be planted into the mind of ordinary healthy adults. The final section discusses new findings concerning eyewitness memory for people. This includes eyewitness identification of previously seen strangers, and new findings on procedures that can reduce mistaken identifications.

SCOTUSBlog has this of potential interest.

The petition of the day is:

New Mexico v. Herring

Issue:  Whether Berghuis v. Thompkins requires advice that a suspect has the right to stop talking at any time in order to establish an implied waiver of Miranda rights.

This case illustrates, again if anything did, the value of video and audio recorded interrogations.  Oooops.  I meant suspect interviews.  Interrogation is of course a loaded word, so investigators are cautioned to use the less accusatory and loaded terminology.  Just more of the psychology of getting confessions.