Article Bank # A-73
NOTE: The text of the footnotes appears at the end of the document.
A DEFENDANT’S RIGHT TO CHALLENGE
COERCED STATEMENTS BY WITNESSES
By KIM MALCHESKI [Footnote 1]
A person charged with a crime now has standing to object on federal due process grounds to the admission of coerced testimony or involuntary out-of-court statements by a third party witness against the defendant. The right of an accused to exclude coerced testimony was expressly recognized by the California Supreme Court in People v. Douglas (1990) 50 Cal.3d 468 and People v. Badgett (1995) 10 Cal.4th 330. Those court decisions were based on earlier federal court opinions which recognized that a defendant’s own personal right to a fair trial may be violated when the police use coercive tactics to obtain statements or testimony from a witness or accomplice.
Defense attorneys usually closely scrutinize their own client’s statements to police to determine if they were properly advised of and waived their Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436), and whether coercive police tactics rendered the defendant’s confession involuntary. Defense attorneys are well aware that police officers are trained in various techniques to overcome a suspect’s free will and reluctance to talk to the police. Police officers nowadays are well trained in the art of psychological coercion to convince suspects that it is in his or her best interest to cooperate with police and make a statement in which they incriminate themselves. [Footnote 2]
Given that defense attorneys can now challenge the admission of coerced statements and testimony by witnesses, we need to critically review the statements made by witnesses, especially those made by accomplices and potential suspects who have been detained by police and may have a motive to deflect suspicion from themselves, to determine whether their statements may be challenged under the Fifth Amendment. If the police did use coercive tactics to obtain statements from persons who are subsequently called as prosecution witnesses, a motion in limine should be filed before trial to exclude those statements as their admission at the defendant’s trial would violate his or her own right to a fair trial.
In this article, I will discuss the legal basis for the Supreme Court’s rulings in People v. Douglas and People v. Badgett, and the legal grounds for challenging involuntary out-of-court statements as well as in-court testimony of prosecution witnesses. I will further discuss how these statements should be challenged by filing a motion in limine before trial, and how the rules differ in regard to a motion to suppress a witness’s involuntary statements in contrast with a motion to suppress a defendant’s own confession to police.
DEFENDANTS NOW HAVE STANDING
In People v. Badgett (1995) 10 Cal.4th 330, 343-345, the California Supreme Court held that a defendant has standing to bring a motion to exclude a third party’s testimony on the ground that that witness’s testimony is somehow coerced or involuntary. A defendant has standing to challenge that witness’s testimony — not by vicariously invoking the witness’s Fifth Amendment privilege against self-incrimination — but by arguing that the defendant’s own due process rights under the Fifth Amendment would be violated by the admission of coerced or involuntary testimony. (Id. at p. 343-344.)
The Supreme Court emphasized that the focus is on the evidence which is produced at trial. The Badgett court concluded, “In order to state a claim of violation of his own due process rights, a defendant must also allege that the pretrial coercion was such that it would actually affect the reliability of the evidence to be presented at trial.” (Id. at p. 348, emphasis added, footnote omitted.)
In Badgett, the defendants filed a written motion in limine to exclude a witness’s trial testimony as being coerced on four grounds. (10 Cal.4th at p. 343, fn. 2.) Those grounds were that the witness had been illegally arrested and jailed; improper inducements were made to the witness to get her to make statements; immunity offers were made on the condition that her testimony be consistent with her out-of-court statements; and her right and access to legal counsel was restricted. (Id. at pp. 342-343.) The Court held under the facts of the case that the defendants did not show on any of the four grounds that the witness’s testimony at trial was coerced. (Id. at pp. 352-363.) Our Supreme Court originally considered this issue in People v. Douglas (1990) 50 Cal.3d 468, 498-506. In Douglas, the defendant challenged the testimony of the witness as it was obtained by improper coercive police tactics and prosecutorial misconduct. The defendant argued that the coercive tactics employed by the Mexican police in extracting the witness’s initial confession were attributable to the United States authorities. The taint from the initial coerced confession was never purged and was, in fact, aggravated by subsequent police and prosecutorial misconduct, and the witness’s testimony under a grant of immunity was a form of coercion as well. (Id. at p. 499.)
The Douglas court recognized that a defendant may challenge the admission at trial of improperly obtained statements which violate the defendant’s Fifth Amendment right to a fair trial. (Id. at p. 499.) But a defendant who seeks to exclude the allegedly involuntary testimony of the witness or codefendant has the burden of proving that the admitted statements were involuntarily obtained. (Id. at p. 500.) Because coerced testimony is inherently unreliable, the focus is on whether the evidence actually admitted at trial was coerced. (Ibid.)
In Douglas, the defendants challenged the witness’s trial testimony, but not his allegedly coerced out-of-court statements. The witness in question testified under oath at trial that his statements were made freely and voluntarily and were not compelled by the earlier statements he made in Mexico. (Id. at p. 502.) The Court concluded that his trial testimony was not coerced, and that the coercion applied by the Mexican police could not be attributed to United States authorities. (Id. at pp. 504-505.)
The Supreme Court’s decisions in Douglas and Badgett were both based, in part, on the seminal decision in Bradford v. Johnson (E.D. Mich. 1972) 354 F.Supp. 1331, which was one of the first cases to consider the issue of whether the admission of coerced testimony of a witness violated a defendant’s rights to due process. In Bradford, the police arrested and physically abused and tortured a potential suspect for several days before his first court appearance. Before his arraignment, the suspect — who became a subsequent prosecution witness — was visited by a local prosecutor who told him that he would be arrested, and that his children would be taken away from him if he did not cooperate. (Id. at p. 1333.)
The suspect confessed, implicated the defendant, and ultimately testified against the defendant at his trial. The defendant objected to the witness’s testimony on the grounds that it was coerced and was therefore unreliable and incompetent. The witness’s testimony was still admitted, and the defendant was found guilty. (Id. at pp. 1333-1334.) It was not until after the defendant’s trial that the witness recanted and signed an affidavit that his testimony was untrue and was given only because of fear for his personal safety and that of his family. (Id. at p. 1334.)
The Bradford court held that the defendant had a due process right to challenge the coerced statements of the witness when a conviction is obtained by unreliable or perjured testimony. (Id. at p. 1335.) The court concluded that the witness’s testimony was untrustworthy under due process standards because he had been tortured and beaten before his arraignment and until he confessed and incriminated the defendant. The court concluded by writing:
“Our American system of criminal law is predicated upon a presumption of innocence which cannot be rebutted except by competent proof beyond a reasonable doubt that the defendant is guilty and that such rebuttal comports with a concept of fairness and civility, namely, due process of law.” (Id. at p. 1336.)
STATEMENTS MAY BE CHALLENGED AS WELL AS TESTIMONY
The Supreme Court in Badgett repeatedly emphasized that the focus of a due process challenge to a witness’s coerced statements or testimony is on whether the evidence produced at trial is unreliable or has been coerced. (10 Cal.4th at p. 344, 348.) The issue in Badgett was whether the witness’s trial testimony was coerced because the written motion filed by defendants was limited to the witness’s testimony and not her earlier involuntary statements. That is why the court repeatedly referred to and discussed the witness’s trial testimony rather than her pretrial statements. However, even though that was the Court’s focus in Badgett, its holding was broader and applies to any unreliable or coerced evidence offered against a defendant at trial.
Federal circuit courts have recognized that a defendant may object on due process grounds to coerced out-of-court statements from witnesses. In United States v. Merkt (5th Cir. 1985) 764 F.2d 266, 273-274, the defendants objected to the use of two witnesses’ out-of-court statements against them at their trial in federal court on alien transportation charges. Those witnesses refused to testify against the defendant at her trial. The prosecution used those witnesses’ prior statements against her, so the defendant argued that those statements were involuntarily obtained. Even though the defendant did not prevail on the merits of her argument, the Fifth Circuit still concluded that ” … the admission at trial of a coerced out-of-court statement from a non-defendant may violate the defendant’s right to a fair trial as guaranteed by the due process clause of the Fifth Amendment.” (Id. at p. 274.)
In LaFrance v. Bohlinger (1st Cir. 1974) 499 F.2d 29, the First Circuit considered the question of whether a state court committed a due process violation when it permitted the district attorney to use a witness’s prior statement to police to impeach the witness without first holding a hearing to determine the voluntariness of that witness’s statement. The prosecution witness in question, Richard Brown, testified in the defendant’s favor at trial by providing him with an alibi. The prosecutor impeached Brown with a prior typed statement he had given the police implicating the defendant in stealing a car. The court permitted the district attorney to vigorously examine the witness with respect to the contents of his prior statement to police. The witness testified that the statement was a police fabrication he signed because he was strung out on drugs, frightened, and willing to say anything to the police. (Id. at p. 31.)
The LaFrance court held that the trial court should have held the hearing outside of the presence of the jury to determine the voluntariness of the witness’s statement to police as it was a question for the court to decide and not the jury. The First Circuit remanded the matter to the state trial court to hold a hearing to determine whether or not the witness’s prior statement to police was coerced. The court held that, if the trial court did find that the statement was coerced, then the defendant’s conviction must be vacated. (Id. at p. 36.)
Under California evidence law, a prior inconsistent statement which is admitted at trial to impeach a testifying witness may be considered not only for testing the credibility of that witness, but also as substantive evidence for the truth of the facts stated by the witness in the prior inconsistent statement. (CALJIC No. 2.13; 1 Witkin, Cal. Evidence (3d ed. 1986) §§ 701-704.) Under California rules of evidence, prior inconsistent statements are substantive evidence; therefore, they have the same evidentiary value as sworn in-court testimony. For these reasons, there is no rational basis for differentiating between out-of-court statements and in-court testimony in regard to whether a defendant has standing to challenge the admission of a witness’s prior statements when those statements are offered by the prosecution to impeach her in-court testimony.
STANDARDS FOR DETERMINING VOLUNTARINESS
As a general rule, the legal standards for determining the voluntariness of a defendant’s confession to police should be applied to determining whether a witness’s statements are voluntary. There are several key differences though when those standards are applied to involuntary statements by witnesses.
The general test for a confession to be voluntary is that it must be the product of rational intellect and free will; if the suspect’s will is overborne, the ensuing statement is inadmissible. (Colorado v. Connelly (1986) 479 U.S. 157.) In determining the voluntariness of a statement or confession, the court should look to the “totality of the circumstances” of the interrogation or interview. (People v. Thompson (1990) 50 Cal.3d 134, 166.)
No one factor is determinative, but a court may consider the existence of any threats or promises of leniency, the circumstances of the interrogation, the mental state of the suspect or witness, the suspect’s age, intelligence and education, the tone of the officers’ interrogation, and other relevant factors relating to the suspect’s state of mind. [Footnote 3]
Threats of draconian punishment and the death penalty may render a suspect’s statement involuntary. (People v. Johnson (1969) 70 Cal.2d 469; People v. Nicholas (1980) 112 Cal.App.3d 249, 266 [detective said that the death penalty went back into effect “today”]; People v. Denny (1984) 152 Cal.App.3d 530; People v. Hinds (1984) 154 Cal.App.3d 222, 238-239 [defendant’s confession involuntary because of threats by detectives that the defendant could get the death penalty if he did not cooperate].)
The police oftentimes use coercive tactics to manipulate friends and relatives of the defendant to give inculpatory statements which hurt the defendant. This occurs often in gang-related cases where the defendant’s fellow gang members may be suspects or accomplices and are subjected to coercive and intimidating interrogations by the police. During these interrogations the police may use various tactics such as threats of the death penalty in a homicide case with accompanying promises of leniency if the witness cooperates. If the witness has children, the police may also raise the specter of the witness losing custody of their children if they are arrested as a result of noncooperation with the police. This tactic is usually used when the witness is the wife or girlfriend of a suspect and the police are able to manipulate her by threatening to have their children taken away if they do not cooperate.
These inherently coercive tactics have been questioned by the courts and, if present during an interview with any witness, may be grounds for moving to exclude their statement inculpating the defendant as being involuntary.(People v. Rand (1962) 202 Cal.App.2d 668; People v. Shelton (1957) 151 Cal.App.2d 587; In re Shawn D. (1993) 20 Cal.App.4th 200 [officers brought Shawn’s pregnant girlfriend into the interview room to plead with him to confess so that she would not be “locked up and taken to jail”]; People v. Trout (1960) 54 Cal.2d 576, overruled on another ground; People v. Cayhill (1993) 5 Cal.4th 478 [police used girlfriend to get confession]; Lynumm v. Illinois (1963) 372 U.S. 528, 534 [police threatened to cut off family’s welfare benefits and place children in foster care].)
If there are legal grounds for challenging the voluntariness of a witness’s statement or testimony, it is important to recognize that there are several substantive differences between a motion to exclude a witness’s involuntary statement and a motion to suppress a defendant’s confession. The most important difference is which party has the burden of proof on a motion to suppress an involuntary statement. In regard to a defendant’s confession, the burden is on the State to demonstrate the voluntariness of a defendant’s confession by a preponderance of the evidence. (People v. Badgett, supra, 10 Cal.4th at p. 348; People v. Markham (1989) 49 Cal.3d 63, 71 [federal standard applies to suppressing confessions].) By contrast, when a defendant moves to exclude coerced testimony or statements of a third party on due process grounds, the burden of proving improper coercion is on the defendant and not the prosecution. (People v. Douglas, supra, 50 Cal.3d at p. 500; People v. Badgett, supra, 10 Cal.4th at p. 348.)
The second important difference is that the “fruit of the poisonous tree” doctrine does not apply to coerced statements or testimony of a third party witness. A second confession by a defendant which is causally connected to a first involuntary confession may still be suppressed if the taint of the first involuntary confession has not been attenuated by the passage of time or for other reasons. (Clewis v. Texas (1967) 386 U.S. 707, 710; Lyons v. Oklahoma (1994) 322 U.S. 596, 603-604.) The Supreme Court in Badgett held that the fruit of the poisonous tree doctrine does not apply to coerced testimony by a third party. (10 Cal.4th at p. 346.) That means that you have to show that the witness’s statement or testimony itself was directly coerced by the police and was not merely the fruit of earlier police misconduct.
Third, a motion to exclude coerced witness testimony must be based on a violation of the defendant’s own personal federal constitutional right to due process and not on the basis of the witness’s privilege against self incrimination. Any motion to exclude third party testimony must be expressly based on the federal due process clause and not just state constitutional or statutory provisions. (People v. Badgett, supra, 10 Cal.4th at p. 349-350.)
Fourth, a defendant cannot, of course, bring a motion to exclude a witness’s statement to police if he or she was not properly advised of or waived their Miranda rights. That is because Miranda rights are based on the individual suspect’s privilege against self incrimination, and a defendant does not have standing to move under Miranda to suppress another person’s statements.
MOTION IN LIMINE
There are a variety of contexts in which one may move to exclude the out-of-court statements or testimony of a third party witness. The most obvious situation is one in which a prosecution witness recants his or her prior statements to police and will testify that they made those statements under duress as a result of being threatened by the police.
If a prosecution witness recants their prior statements to police and testifies favorably for the defense, the prosecution will undoubtedly impeach that witness with their prior inconsistent statements to police. Given that those prior statements may be admitted as substantive evidence, a motion in limine should be brought in advance of their testimony to exclude that evidence as unreliable as a result of coercive police tactics. (LaFrance v. Bohlinger, supra, 499 F.2d 29, 36.) Likewise, if a prosecution witness is legally unavailable at trial and they try to use prior coerced testimony from a preliminary hearing or other court hearing, a motion in limine should be brought to exclude that testimony as well.
Defense counsel should file a written motion in limine to exclude whatever testimony or statements which were coerced by the police. A written motion in limine filed and heard before the actual start of the trial is much preferable over an oral motion during trial for several reasons. By filing a written motion in limine, counsel is able to educate the trial judge in regard to the relevant state and federal authorities which permit the court to exclude such unreliable evidence under the due process clause. Many trial judges are not even aware of the Supreme Court’s rulings in Douglas and Badgett, which give a defendant standing to bring such a motion. Many defense attorneys merely attempt to bring out the coercive police tactics during cross examination of a prosecution witness in hopes of persuading the jury that the witness’s coerced statements are unreliable. While this may suffice as a fall back strategy if the motion in limine is denied, it would be preferable if the coerced statements excluded entirely, unless there is some tactical reason for admitting them to show a pattern of police misconduct.
A motion in limine is also preferable because it gives you an opportunity to have an evidentiary hearing pursuant to Evidence Code section 402 which enables you to cross examine the interrogating police officers and witness before the start of the trial regarding the coercive tactics used by the police. That will be necessary if the prior interviews or interrogations with the witness were not recorded. It also enables you to more fully question the police in regard to their training and tactics used during interrogations which a trial judge may not permit during the trial itself.
Likewise, you may be permitted to develop in more detail the background of the witness in question and how he or she may have been more emotionally vulnerable to police manipulation as a result of alcohol and drug consumption, mental illness, educational deficiencies, etc. Experts in police interrogation practices and psychologists could be called as expert witnesses at an in limine hearing.
Counsel preparing a motion in limine should specifically describe which out-of-court statements or court testimony is the subject of the motion. If the prosecution witness is expected to recant his or her prior statements or testimony, then any prior statement or testimony which may be used to impeach the witness at trial should be included within the purview of the motion to preserve the issue for appeal.
Most importantly, any motion in limine or objection made at trial must be explicitly made on federal due process grounds. If counsel does not expressly raise the federal constitutional issue at trial, that issue may be deemed waived on appeal and barred in future federal habeas petitions. Failure to preserve that issue will, of course, leave trial counsel open to an ineffective assistance of counsel claim on appeal because counsel is required to not only object to that evidence but object on the proper legal ground. (In re Jones (1996) 13 Cal.4th 552, 571-573 [counsel ineffective for failing to object properly to inadmissible prejudicial evidence].)
The Supreme Court’s decisions in Badgett and Douglas provide defense counsel with new ammunition in which to attack coercive police tactics and to exclude unfavorable evidence at trial. While the defendants in Badgett and Douglas may not have prevailed on their claims, that should not deter others from mounting challenges to police misconduct in their own cases. While the chances of prevailing on these motions in front of pro-prosecution state judges may not be great, we should all take advantage of this opportunity to aggressively litigate claims of police misconduct as aggressively as the prosecution prosecutes our clients.
Kim Malcheski is an attorney in San Francisco who specializes in criminal matters at the trial and appellate levels in state court.
For an excellent discussion of various techniques employed by the police to break down a suspect’s resistance and obtain a confession, see R. Ofshe and R. Leo, “The Social Psychology of Police Interrogation, The Theory and Classification of True and False Confessions,” Studies In Law, Politics and Society, Vol. 16, pp. 189-251; and R. Ofshe and R. Leo, “The Decision To Confess Falsely: Rational Choice and Irrational Action,” (1997).
For a more complete discussion of the factors relevant to assessing the voluntariness of a defendant’s confession, see Charles Denton, “Excluding Confessions and Admissions,” CACJ Forum, (1997) Vol. 24, No. 1, pp. 48-54.