Lead Opinion
Opinion by Judge FARRIS; Dissent by Judge NOONAN.
OPINION
Tymоnd Preston appeals his conviction for Abusive Sexual Contact in violation of 18 U.S.C. §§ 1153 and 2244, and contests the portion of his sentence imposing a lifetime term of supervised release and several conditions of his supervised release.
After a minor’s allegations of sexual assault and an investigation, Preston was indicted for Aggravated Sexual Abuse. The government later agreed to dismiss the indictment and filed an information charging Preston with Abusive Sexual Contact. Preston was convicted after a bench trial.
I.
At some time in the evening on Wednesday, September 23, 2009, TD
After exiting Preston’s house in tears, TD joined his two young cousins. The three boys entered TD’s house at around 8:00 p.m., all crying and visibly upset. TD’s grandmother asked him why he was upset and he replied that his “butt” hurt because Preston had put his penis in his “butt.” TD’s grandfather called the police to report the incident, and the police advised him to take TD to the hospital. On the way to the hospital, TD refused to sit “because his butt was hurting.” At the hospital, an officer arranged for TD’s family to take him to the Safe Child Center at the Flagstaff Medical Center the following day.
TD met with a forensic interviewer at the Safe Child Center, who gave TD an
While at the Safe Child Center, a nurse practitioner conducted a “head-to-toe” medical examination of TD. TD told the nurse that “[Preston] put his dick in my butt,” that Preston put on a “dick wearing,” which the nurse took to mean a condom, and that the condom “got white stuff on it. [Preston] threw it away.” The nurse noted that TD had no body surface injuries, complained of pain when she examined his anus, and had a “normal genital and anal exam,” though the nurse noted that a “normal exam does not confirm nor negate the possibility of abuse.”
Two agents began an investigation and drove to Preston’s house to interview him. They approached Preston outside of his home, told him that they were there to discuss the allegations of sexual assault, and engaged him in a forty-minute, tape-recorded interview. Other people familiar to Preston were nearby during the interview. The agents informed Preston that he was not under arrest and was free to leave. Preston appeared calm throughout the interview and seemed to understand the agents’ questions. Although the alleged assault took place on Wednesday, September 23, the agents variously referred to the date of the incident as the 23rd, or Friday, or both. When asked if he was at home on Friday, Preston replied that he was not at home and “was around downtown.” Preston was, in fact, not home that Friday. The agents used such tactics as telling Preston that “six people over there” could place TD at Preston’s home on the day of the incident, telling him about other evidence such as “forensic exams [and] interviews” that could be used, and asking him if this was a “onetime thing” or if he “prey[ed] on little kids.” Preston still denied having done anything to TD. Preston also claimed that he could not remember “Friday” because he suffered from “short-term memory loss,” telling the agents, “sometimes I go crazy.” Preston claimed, “It’s just like I have problems with my head, like a tumоr.” One of the agents asked him, “You have a tumor?” and Preston responded, “Yeah.” An agent then asked if he was disabled, and Preston asked the agent to explain what “disabled” means. The agent explained what he meant by disabled— whether Preston was “not able to take care of’ himself or get a job — and Preston replied that he had been removed from school for his behavior and was not allowed back.
The agents continued their questioning and Preston kept denying the accusations. One agent offered Preston the chance “to sit in the [agents’] vehicle and talk about it away from ... everybody.” Preston declined. They again reminded Preston that he was not under arrest and was free to leave. They told Preston that he seemed like a “pretty good dude” and that if he
The agents then asked Preston if he was sorry for what he had done to TD. When he said that he was, the agents told him, “[U]sually what we do is we write a statement and like if you wanted to say you’re sorry or something like that, you could ... definitely do that, and we can provide that to him.” The agents asked Preston if they could “just summarize what [Preston] ... told [them].” At this point, the agеnts realized that the alleged incident had not occurred on Friday and erroneously changed the day in their summary to Thursday, but correctly stated that it was the 23rd of September. The agents wrote down a summary of the events. They asked Preston to repeat his account and included what Preston could confirm happened and left out that which Preston claimed he could not remember. They explained that they were “not going to put anything that [he didn’t] want [them] to put in,” and that they were “going to have [him] sign [it].” They then gave it to Preston to read over and told him that he could “change anything [he] want[ed].” Preston then signed the statement without making changes and the agents left without placing him under arrest.
Preston was initially charged by indictment with Aggravated Sexual Abuse, for which the mandatory minimum prison sentence is thirty-years. Negotiations between Preston, his attorney, and the government led to an agreement that Preston would waive his rights to a jury trial and to an indictment if the government would reduce his charge to the lesser offense of Abusive Sexual Contact, which carries no maximum prison sentence, and would recommend that he receive no more than a fifteen-year sentence. Preston and his attorney signed and filed а waiver of indictment and a waiver of jury trial, both of which stated that Preston had been advised of his rights and agreed to waive them in open court. Additionally, the district court conducted a colloquy in open court to determine whether Preston understood the rights that he waived. The judge, with assurances from Preston’s attorney, concluded that Preston understood his rights.
The district judge conducted a three-day bench trial and at its conclusion found
The court sentenced Preston to fifty-months’ imprisonment, a lifetime term of supervised release, and, inter alia, the conditions that:
(1) “You shall attend and participate in plethysmograph testing,” (2) “You shall not possess, view, or otherwise use any other material that is sexually stimulating, sexually oriented, or deemed to be inappropriate by the probation officer and/or treatment provider,” and (3) ‘You shall not be in the company of or have contact with children under the age of 18 without prior approval of the probation officer.”
II.
Preston raises several issues in challenging his conviction and sentence. Preston first argues that his confession was involuntary and thus improperly admitted at trial. After examining the totality of the circumstances, we conclude that the confession was properly admitted. Preston also challenges the validity of his waiver of his rights to a jury trial, indictment, and confrontation. We hold that Preston validly waived his rights to a jury trial and an indictment, and the district court did not plainly err by accepting Preston’s counsel’s waiver of his right to confrontation. We reject Preston’s contention that the trial court abused its discretion in admitting expert testimony about the DNA evidence used to implicate him.
We hold that the district court properly admitted the testimony of TD’s grandmother and uncle under the excited utterance exception to the general hearsay exclusion. The testimony of Officer Butler was not properly admitted at trial, but its admission was harmless error. We reject Preston’s argument that prosecutorial misconduct materially affected the fairness of the trial. Preston also argues that the trial court rеlied on insufficient evidence. We reject the argument. Since certain conditions of Preston’s supervised release must be remanded to the district court for reconsideration, we do not rule on the question of the duration of the supervision.
III.
We review de novo whether a confession was voluntary and for clear error the district court’s factual findings underlying its determination of voluntariness. United States v. Gamez,
“Involuntary or coerced confessions are inadmissible at trial because their admission is a violation of a defendant’s right to due process.” Brown v. Horell,
“[C]oercive police activity is a necessary predicate to the finding that a
There is no doubt that the agents continued to try to obtain a confession from Preston after he denied the incident with TD. However, accusing a suspect of lying “does not automatically render the questioning coercive, as an interrogator can legitimately express his disbelief at a defendant’s story in order to elicit further comments or explanations.” United States v. Wolf,
Nor is there any doubt that the agents confused the dates during the course of the interview. Hоwever, this was not a ploy to confuse Preston, but was a genuine mistake on the part of the investigating agents; the agents properly referred to the incident as having occurred on September 23 and eventually tried to rectify the mistake during their interview with Preston, though once again they stated the wrong day. This mistake did not appear to confuse Preston, who continued to deny having been home on Friday but eventually acknowledged the incident to which the agents were referring. It would be illogical to expect Preston to correct the agents’ asserted date of an event he claimed never occurred, and by the time he began to confess, differentiating between a Wednesday and a Friday would not have been at the forefront of his thoughts.
The agents proceeded with their interview by using such tactics as telling Preston that other evidence could implicate him, making it seem as though confessing could minimize the consequences of his crime, and asking Preston suggestive questions. None of these tactics, however, rises to a constitutional violation. The agents did not use “false evidence ploys,” as implied by Preston. The agents referenced witnesses that could placе TD at Preston’s home on the day of the incident, interviews implicating Preston, and forensic examinations that could be conducted to determine what had occurred. There were several people who could place TD at Preston’s home on the day of the incident, the agents had reports of the incident from other interviews, and a forensic examination of TD could be conducted, as it later was. Even if this evidence was misleading, this is not enough to amount to coercion. See Pollard v. Galaza,
Further, tactics used to obtain a confession are only a factor to be weighed when examining the totality of the circumstances. Brown,
Preston contends that a finding of involuntariness is “irrefutable in light of [his] characteristics,” specifically his diminished mental capacity. The “рersonal characteristics of the defendant are constitutionally irrelevant absent proof of coercion,” Derrick v. Peterson, 924 F.2d 813, 818 (9th Cir.1991) (quoting United States v. Rohrbach,
Preston has an IQ of 65, which means that he suffers from mild mental retardation. Atkins v. Virginia,
Preston’s mental capacity alone is not enough to render his confession involuntary. In the absence of coercive tactics or a coercive atmosphere during the interview, more is required to show that Preston’s confession was involuntary.
IV.
We review de novo the district court’s acceptance of a defendant’s waiver of his rights to a jury trial and an indictment. United States v. Christensen,
A. Waiver of Indictment
A defendant must knowingly, intelligently, and voluntarily waive his right to an indictment. Ferguson,
Preston’s waiver complied with Rule 7(b). Preston waived his right in open court after the district judge ascertained Preston’s understanding of the consequences, and Preston’s lawyer confirmed that Preston understood the waiver. The judge explained to Preston the difference between an indictment and an information, including the role of the grand jury in an indictment and the consequences of waiving his right to a grand jury indictment. The judge also asked Preston’s attorney whether he had reservations about Preston’s understanding of his waiver, and the attorney stated, “I have no such reservations, judge.” Preston’s attorney had consulted with two mental health professionals, both of whom confirmed that while Preston may have been slow to understand
Preston also argues that his waiver in exchange for a lesser sentence constituted coercion. There is, however, no basis in law or fact for this argument. Preston knowingly, intelligently, and voluntarily waived his right to an indictment.
B. Waiver of Jury Trial
A defendant “must be competent to waive the jury right, and the waiver must in fact be voluntary, knowing, and intelligent.” Christensen,
Preston complied with Federal Rule of Criminal Procedure 23(a) by waiving his right to a jury trial in writing and with the approval of the government and the court. The judge cоnducted an in-depth colloquy in which he discussed with Preston each of the four aforementioned points, had Preston explain each, and made sure that Preston understood them all. Preston’s argument that the court was required to comply with Federal Rule of Criminal Procedure Rule 11, which sets forth necessary procedural steps for a defendant accepting a guilty plea, has no legal basis because Preston did not plead guilty. Preston’s waiver of his jury right was voluntary, knowing, and intelligent.
C. Waiver of Right to Confrontation
“[T]he accused may waive his right to ... confrontation and ... the waiver of this right may be accomplished by the accused’s counsel as a matter of trial tactics or strategy.” Wilson v. Gray,
y.
Preston argues that the expert testimony of the DNA analyst at trial did not meet the requirements of Rule 702 and should have been excluded as unfairly prejudicial under Federal Rule of Evidence 403.
Preston’s assertion that the DNA evidence should have been excluded under Rule 403 depends largely on his argument that the evidence was unreliable. His argument fails. Rule 403 is inapplicable to bench trials. EEOC v. Farmer Bros. Co.,
Federal Rule of Evidence 702 states that expert testimony must be “the product of reliable principles and methods, and ... the expert [must have] reliably applied the principles and methods to the facts of the case.” Fed.R.Evid. 702. We review the district court’s decision to admit expert opinion testimony for abuse of discretion. United States v. Redlightning,
Thе district court properly applied Rule 702 to determine whether to admit the testimony of the DNA analyst. The trial judge fulfilled his “gatekeeper” role pursuant to Daubert and allowed the expert’s testimony based on the foundation laid by the prosecutor that established the relevance and reliability of the testimony and the scientific method by which the DNA was analyzed; the DNA was subjected to a common procedure for analysis. See Daubert v. Merrell Dow Pharm., Inc.,
Preston incorrectly asserts that the district court “erroneously used the DNA population statistics.” Specifically, Preston claims that the district court misinterpreted the DNA evidence when it stated that “99.8% of the general Navajo population can be excluded as possible contributors of such DNA.” The analyst testified that “99.8 percent of Navajo contributors” taken from a “population of randomly selected unrelated individuals” could be eliminated as contributors to the DNA found in TD’s underwear. Preston claims that “the 99.8% statistic suggests only that this percentage of randomly selected, unrelated Navajo Native Americans is unlikely to have the exact same DNA profile as Mr. Preston — the presence or absence of alleles at only five loci would yield a significantly lower percentage.” Preston, however, has misinterpreted the analyst’s statistics; the analyst eliminated 99.8% of the Navajo population based on an analysis of the sample taken from TD’s underwear and not based on an analysis of Preston’s DNA, and Preston provides no basis for his claim that another test, which he fails to desсribe, “would yield a significantly lower percentage.” The district court did not abuse its discretion in admitting the expert’s testimony. It applied the correct rule, Rule 702, and did not apply the rule in a way that was “illogical, implausible, or without support in inferences that may be drawn from the facts in the record.” Redlightning,
We review a district court’s admission of evidence for an abuse of discretion and will reverse only if it is more probable than not that the improper evidence materially affected the verdict. United States v. Dorsey,
Preston objects to the district court’s admission of testimony from TD’s grandmother and uncle recounting what TD told them on the night of the assault. He also challenges the testimony of Officer Butler, who investigated the incident, recounting what TD and his grandparents told him about the assault.
The district court did not abuse its discretion by admitting the statements of TD’s uncle and grandmother recounting what TD told them on the night of the assault. The excited utterance exception allows a court to admit a “statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.” Fed.R.Evid. 803(2). Although Preston claims that the timing of the events precludes admission of the testimony, there is no conclusive evidence to establish when the alleged assault occurred, and the evidence shows that TD ran from Preston’s house in tears to his own home where he reported the incident to his relatives while still crying and visibly upset. The district court did not abuse its discretion. It did not make a decision that was “clearly against the logic and effect of the facts.” Rabkin v. Oregon Health Sciences Univ.,
Preston does make a valid argument that the testimony of Officer Butler was improperly admitted as hearsay and a violation of the Confrontation Clause. However, Officer Butler’s testimony was cumulative to the testimony of TD, TD’s grandmother and uncle, and TD’s forensic interviewer. In light of the other evidence available, the admission of Officer Butler’s testimony was harmless error. See United States v. Gonzalez,
VII.
If defense counsel fails to object to acts of alleged prosecutorial misconduct at trial, we review for plаin error. United States v. Wright,
Preston makes several arguments that the evidence was improperly argued: the prosecutor improperly vouched for the testimony of the DNA analyst; the prosecutor argued chronic sexual abuse; the prosecutor injected “incendiary considerations” into the case; and the prosecutor suggested that defense counsel manufactured evidence, commented on Preston’s silence, and called Preston’s mother a liar. These arguments lack merit.
“Vouching consists of placing the prestige of the government behind a witness through personal assurances of the witness’s veracity, or suggesting that information not presented to the jury supports the witness’s testimony.” United States v. Weatherspoon,
Preston argues that the prosecutor improperly referenced chronic sexual abuse that was “not in evidence” and “unnecessary to the charge.” However, TD stated during his forensic interview that Preston assaulted him multiple times, and the information was relevant to an analysis of this interview.
It is unnecessary to address Preston’s other arguments. Even if misconduct occurred, Preston has not shown that it is more probable than not that it affected the fairness of the trial. This was a bench trial in which the judge was the trier of fact. The risk of improperly influencing a judge by placing the prestige of the government in favor of or against a witness or swaying the judge with improper evidence is far less than in a jury trial. See Dedmore v. United States,
VIII.
Preston contends that the trial court had insufficient evidence to conclude that he had the intent to sexually abuse TD or that the abuse actually occurred. We must view the evidence “in the light most favorable to the prosecution” and examine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,
The government had the burden to prove beyond a reasonable doubt that Preston had the “intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.” 18 U.S.C. § 2246(3). “[C]ircumstantial evidence alone can be sufficient to demonstrate a defendant’s guilt.” United States v. Cordova Barajas,
Preston also argues that the evidence is not sufficient to prove that any sexual contact occurred. Preston asserts that the district court made its finding based on a coerced confession, an unreliable statement from TD, and unreliable DNA evidence. Preston has failed to prove his assertions regarding the reliability of the
IX.
The length of a term of supervised release is part of the sentence and is reviewed for reasonableness. United States v. Daniels,
The district court’s imposition of a lifetime term of supervised release was procedurally sound. The record does not support Preston’s assertion that the court “gave no reasons to justify a life sentence.” The court gave many reasons including its review of the sentencing factors, the nature of the offense, and Preston’s characteristics. See United States v. Carty,
Preston also argues that the sentence is substantively unreasonable, asserting that the court failed to take into account the sentencing factors provided by 18 U.S.C. § 3553(a). Section 3553(a) states that the court must consider:
“the nature and circumstances of the offense and the history and characteristics of the defendant ... [and] shall impose a sentence sufficient, but not greater than necessary ... [1] to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; [2] to afford adequate deterrence to criminal conduct; [3] to protect the public from further crimes of the dеfendant; and [4] to provide the defendant with needed ... correctional treatment in the most effective manner.” 18 U.S.C. § 3553(a).
The district court made explicit reference to section 3553(a) and took these factors into account during sentencing. Preston argues that the sentence was “greater than necessary” because his age, mental impairments, and lack of a prior record should necessitate a lesser sentence. The court accounted for these facts, and Preston’s argument is not sufficient to show that the court abused its discretion.
However, the prosecution recommended a lifetime term of supervised release because “the extent of [Preston’s] dysfunction” was not clear at the time of the trial. The prosecutor reasoned that “if [at] some later time it becomes clear that he has been rehabilitated ... he can have that term of supervised release shortened ... but at no time can Your Honor lengthen the term of supervised release if you don’t avail yourself today of the term of lifetime supervised release.” We cannot, on this record, hold that the court abused its discretion, but we note that Preston is young and this can possibly be a very long sentence. We therefore suggest that the district court, in its own discretion, consider the prosecutor’s recommendation of an alternative sentence, whereby Preston may
X.
Preston failed to object to the conditions of his supervised release. We therefore review his claims for plain error. United States v. Blinkinsop,
The district court must provide a defendant with notice before imposing any condition of supervised release not contemplated by the Sentencing Guidelines. United States v. Cope,
Preston also argues that the court did not provide “on-the-record reasons for imposing” plethysmograph testing. The district court failed to make specific findings with regard to this testing. The government admits, as it must, that this was error. We require specific factual findings before ordering this testing because individuals have a “particularly significant liberty interest in being free from plethysmograph testing.” United States v. Weber,
Preston also argues that the condition of his release forbidding his use of “sexually oriented” or “inappropriate” materials is vague, such that “men of common intelligence must necessarily guess at its meaning and differ to its application.” United States v. Soltero,
Finally, Preston argues that the condition prohibiting him from being “in the company of ... children under the age of 18 without prior approval of [his] probation officer” is not sufficiently definite. Company, as a noun, is defined as “the quality or state of being a companion or associate of another.” Webster’s Dictionary 461 (3d ed. 1976). This Court has concluded that
This supervised release condition also raises a problem in light of this Court’s recent decision in United States v. Wolf Child.
Here, the district court’s imposition of the condition was procedurally unsound. In Wolf Child, this Court determined that the condition preventing Wolf Child from being in the company of his two daughters or from socializing with his underage fiancée implicated “particularly significant liberty interest[s],” and therefore required that the district court “support its decision to impose the condition on the record with record evidence that the condition ... [was] necessary to accomplish one or more of the factors listed in § 3583(d)(1) and involve[d] no greater deprivation of liberty than [was] reasonably necessary,” and to accomplish this, “the sentencing court, at the time it impose[d] the restrictive condition,” had to “point to the evidence in the record on which it relie[d] and explain how on the basis of that evidence the particular restriction [was] justified.” Id. at 1092 (internal citations and quotation omitted). A similarly significant liberty interest is at stake here. Although Preston does not currently have children, he may in the future, and under the terms of his supervised release he could never associate with them without the permission of his probation officer. The district court did not follow the necessary procedure to infringe on this significant liberty interest. However, unlike in
XI.
We REMAND for the district cоurt to reconsider the plethysmograph testing requirement, to clarify the condition that Preston “shall not possess, view, or otherwise use any other material that is sexually stimulating, sexually oriented, or deemed to be inappropriate by the probation officer and/or treatment provider,” to adjust his probation requirements so that they are definite and certain, and to provide adequate explanation for Preston’s conditions of supervised release.
AFFIRMED in part, REMANDED for resentencing.
Notes
. This case involves a juvenile victim whose identity has been protected.
Dissenting Opinion
dissenting:
The only evidence against the defendant is a coerced confession. I will take up the elements of the government’s case in turn.
I. The Child’s Account
A temptation exists to refer to the child’s story as “testimony.” The government in its brief (e.g. p. 69) and the majority in its opinion (e.g. Maj. Op. at 1120) yield to this temptation. But the child’s story is not testimony. The story was not told under oath. The story was not subject to cross-examination. It was only an unsworn and untested tale.
The district court found a dozen or more facts of the child’s tale were “obviously not factual”:
-that Preston came to the child’s house and had threatened to kill him the previous day;
-that the child called 911;
-that Preston tried to stab the child with a knife;
-that the child locked Preston in the child’s bedroоm with a key;
-that Preston climbed out of the window and onto the roof and jumped off;
-that the child was hiding under a blanket so Preston could not see him;
-that Preston followed the child’s tracks and fell into a water hole;
-that Preston then drove a monster truck off a cliff and the police followed him with helicopters and cars;
-that the child threw knives at Preston’s heart;
-that Preston tried to rape the child’s sister, but that he did not because kittens scratched him;
-that the child ran outside and killed a robber and almost killed Preston.
In the farrago of fantasy, no fact identifies itself as worthy of belief.
After examining the child, the forensic examiner concluded:
[He] described events that are unsupported by the subsequent forensic examination of the victim and his clothing. For example, the victim indicated that during the course of the assault Preston ejaculated in his mouth, on his lips, on his red shirt, and on his stomach. The forensic examination of the victim and the clothing he was wearing nevertheless revealed neither evidence of any semen nor the existence of any red shirt. For that matter the physical examination of the victim showed no signs of trauma or semen.
II. Inconclusive DNA Evidence
The government does not argue that there exists DNA evidence of sexual contact between the child and Preston.
III. Confession Alone Is Not Enough
A defendant cannot be convicted on a confession alone. In United States v. Norris,
Here, the government has produced no evidence to corroborate Preston’s confession that the “core of the act” — sexual contact — “actually occurred.” Id.
IV. Failure of Confession to Satisfy Statute
Even if we were to consider the confession alone, violating the law of this circuit, Preston’s confession fails to satisfy the statute. The government must prove beyond a reasonable doubt that Preston was guilty of “knowingly engaging] in abusive sexual contact” with the “intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.” 18 U.S.C. §§ 2244, 2245(3). Preston’s confession shows no such intent.
V.The Coerced Confession of The Mentally Retarded Youth
Preston’s “confession” should not be considered at all becausе it is involuntary.
Agent Kraus and Investigator Secatero questioned Preston on the front porch of his house. Secatero told Preston that “there’s two types of people.” The first type was a “monster,” a “sexual predator,” the “type to prey on little kids.” This type was a “cold-hearted person” for whom they “don’t show any sympathy.” The second type, Kraus and Secatero explained, was not a monster but a “guy that had a bad day” who did a “one time thing.” This second type could “move on,” because what transpired was “just a misunderstanding.” Secatero told Preston that the officers wanted to know “which kind of person” he was. He asked Preston, “Which ... person are you? Are you that type where you prey on little kids?” Preston said he was not.
After giving Preston two criminal alternatives, Secatero and Kraus proceeded to ask Preston a series of questions that forced him to choose between damaging admissions:
-“Is it because [...] you wanted to have sex [... ] or is he the one that came onto you?”
-“Is it something where you forced the issue or is it something he wanted?”
-“Did he pull away or did you pull out?”
-“Did all of your penis go in [or] just a little bit?”
-“Did you do it a lot or just that one time?”
In each case, Preston chose the less damaging admission. At times, the loaded questions were more akin to statements. To thesе, Preston was silent, said he didn’t know, or denied the claims. Agent Kraus said, for instance, “He pulled his pants down?” ' Preston said he didn’t know.
Loaded questions are difficult for intelligent persons. For a feeble mind, they are nearly impossible. Preston is eighteen and has a brain “like a five year old.” He has an IQ of 65. Preston’s IQ places him in the range of mental retardation. Atkins v. Virginia,
No one can seriously argue that the paper signed by Preston was comprehended by Preston as a document of grave legal import. Kraus told Preston that the paper was merely a way to say “sorry” to [the child]: “Do you want to write any — usually what we do is we write a statement. If, like, you wanted to say sorry or something like that. You could definitely do that. And we can provide that to him.” Preston’s response was hardly assent: “I’ll just say I’m sorry for what I did, but they’re just trying to accuse me of that shit. But fuck — I mean, not like that.” Ignoring Preston’s equivocation, Kraus assured Preston that the statement was “just a kind of summary.”
The “summary” — Preston’s confession— was a brief gathering of details selected by the officers, culled to their purposes, and written by their hand. The details they selected were details they had fed him. Not once did Preston revise, correct, or counter the officers’ dictation of the statement. Agent Kraus said, for instance, “You just unzipped your zipper?” Preston was silent. Kraus said, “You pulled your penis out, and you put a condom on?” Preston was silent. Each of these details was transferred into the written statement. Kraus asked Preston, “Do you want me to put you’re sorry [...]? Are you sorry or not sorry?” Preston chose the option that kindergarten teaches as proper. When Agent Kraus finished writing the statement, he said to Preston, “I’m going to have you sign this.” Preston signed.
There is no evidence that Preston read what the officer wrote. It is difficult to describe Preston’s choice between bad alternatives, actual denials, and ambiguous silence as “a product of a rational intellect and a free will,” a necessary condition for an admissible confession. Blackburn v. Alabama,
The majority asserts that coercion of a mentally impaired person “appears to turn largely on the length of the interrogation.” This reading is unsubstantiated. Nowhere does case law state such a rule. Length of an interrogation is one factor; mental deficiency is another. A short interrogation does not reduce the relevance of the defendant’s mental capacity.
The majority notes that the interrogation occurred at Preston’s house with others present. Yet Preston was distinctly vulnerable at his house. Both officers had arrived in unmarked vehicles, and both were dressed in plain clothes. Preston had no prior record and had never spoken to police before. The officers undoubtedly checked his record and knew he lacked
VI. Unreliability of Confessions From Mentally Retarded People
Confessions from mentally retarded people are prone to be false.
Preston’s confession is unreliable. Preston was ready to sign a confession to a crime with the wrong date and did so. The police officers told Preston, at least jfifteen times, that he had been home on Friday to commit the crime; the officers later admitted that they meant to say Wednesday. Although Preston had a regular routine on Fridays of leaving his house to see his aunt, he was so suggestible that he agreed with the officers that he had been home on Friday. Preston’s statement meets the textbook case of a false confession: Preston was given a false detail of the crime, and he accepted it as an actual fact. (“One method for cheeking the authenticity of a voluntary confession, or one that seems to be the result of a mental illness, is to introduce some fictitious aspects of the crime and test whether the suspect will accept them as actual fаcts relating to the occurrence.” F. Inbau, J. Reid, J. Buckly, & B. Jane, Criminal Interrogations and Confessions, 349 (5th ed. 2011)).
As the officers dictated the statement for Preston to sign, Preston was either silent or made unintelligible sounds. The truth of what transpired remained unarticulated by him. As researchers have found, the “tendency [of retarded people] to mask their disabilities,” combined with the widespread ignorance of mental retardation, “make it difficult for police and others to properly interpret the responses of mentally retarded persons.” Eugene R. Milhizer, Confessions After Connelly: An Evidentiary Solution for Excluding Unreliable Confessions, 81 TEMP. L. REV. 1, 15 (2008). As a result, police detectives can “create false confessions by pressuring the suspect to accept a particular account and suggesting crime facts to him, thereby contaminating [his] narrative.” John B. Gould & Richard A. Leo, One Hundred Years Later: Wrongful Convictions After a Century of Research, 100 J.Crim. L. & Criminology 825, 849 (2010).
Confessions from mentally retarded suspects, in particular youth, are “per se untrustworthy.” See Welsh White, False Confessions and the Constitution: Safeguards Against Untrustworthy Confessions (1997), 32 Harv. C.R.-C.L.Rev. 105. In a recent study of the first 200 DNA exonerations in the U.S., 35% of the false confessors were 18 years or younger and/or had a developmеntal disability. Saul M. Kassin et al., Police-Induced Confessions: Risk Factors and Recommendations, 34 Law & Hum. Behav. 3, 19-22 (2010). Another study found that 69% of the exonerated persons with mental disabilities were wrongly convicted because of false confessions. Id. See also Brandon L. Garrett, The Substance of False Confessions, 62 Stan. L.Rev. 1051, 1064 (2010) (“Mentally disabled individuals and juveniles are both groups long known to be vulnerable to coercion and suggestion.”); Gould at 847 (noting that “the developmentally disabled, cognitively impaired, juveniles — all of whom tend to be unusually suggestible and compliant” — are more likely to confess falsely); Milhizer at 14 (“Certain characteristics common among mentally retarded persons make them particularly prone to confess falsely. For example, mentally retarded suspects are of
The majority writes that recognizing the cognitive impairment of Preston and his susceptibility to coercion would “significantly broaden” this court’s jurisprudence. The law is more capacious than the majority admits. In Atkins, the Supreme Court determined that, due to “cognitive and behavioral impairments,” including “the diminished ability to understand and process information, to learn from experience, to engage in logical reasoning,” mentally retarded people categorically are at risk of producing false confessions. Atkins,
The majority thoughtfully asked the district court to reconsider its order approving the plethysmograph, but the majority does not ban it. I have already expressed in a concurring opinion a critique of this procedure. See United States v. Weber,