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Colorado Domestic Violence Lawyer – How To Avoid Incriminating Yourself At The Scene Of A Domestic Violence Investigation

By H. Michael Steinberg Colorado Domestic Violence Criminal Defense Lawyer – Email the Author

Colorado Domestic Violence Lawyer – How To Avoid Incriminating Yourself At The Scene Of A Domestic Violence Investigation – The most defensible kind of case in any Colorado criminal courtroom is the classic “he said – she said” absence of forensic evidence domestic violence case.

The problem is that the police are clever in the way they trick suspects of acts of domestic violence into making incriminating statements at the scene of a Colorado domestic violence investigation (when the suspect is not yet under arrest and subject to mandated Miranda warnings). The suspect’s natural defense mechanisms do not seem to “kick in” until the cuffs are placed on their hands – it is at that time that they first realize what they may have unwittingly done.

When Statements Are Held As Involuntary Confessions

All statements admitted against a defendant in the trial of Colorado domestic violence cases must be knowingly and voluntarily made. Challenges to the “means” used to elicit any statement from a suspect (that could later be admitted as a confession) are evaluated under what is known as a “ totality of the circumstances” standard.

An “involuntary confession” is one that has been coerced in some way by official government pressure. If the statement is was “involuntary” and violative of the Due Process Clause of the Fourteenth Amendment, it cannot be admitted as evidence at trial against the defendant.

The Miranda decision was intended to be a protective measure against police pressure tactics. If the Miranda rights are given and then waived – most confessions are seldom found to be involuntary. But what about cases where Miranda does not apply – that is where the suspect has not been arrested or placed into custody?

When suspects are interrogated BEFORE Miranda warnings apply – ANY and ALL statements must be found to have been voluntarily given under the “totality of the circumstances” test.

What Does The Totality of the Circumstances Test Mean?

Obvious forms of police coercion such as pain and torture are the easy case for involuntary convictions. It is the more subtle psychological devices used by the police to elicit a confession against the accused’s will that are the subject of this article.

“[W]hether the behavior of the State’s law enforcement officials was such as to overbear [the defendant’s] … will to resist and bring about confessions not freely self-determined.”

To determine whether a confession is voluntary, the court must assess “the totality of all the surrounding circumstances-both the characteristics of the accused and the details of the interrogation.”

The key factors used to determine the totality of the circumstances test include the suspect’s:

lack of education,
low intelligence,
lack of any advice to the accused of his constitutional rights,
length of detention,
the repeated and prolonged nature of the questioning, and
the use of physical punishment such as the deprivation of food or sleep.”

Using the totality of circumstances test, courts also consider such external factors as:

the duration of the interrogation,
the persistence of the officers,
police trickery,
the absence of family and counsel, and
threats and promises made to the defendant by the officers.

[C]ourts must also consider such factors as the defendant’s mental health, mental deficiency, emotional instability, education, age, and familiarity with the judicial system”.

The Totality Of Circumstances Test & Threats or Appeals to Friendship

What is unlawful are specific or even general threats to the suspect, and /or his or her family. In addition, when an officer appeals to a special friendship between the interrogating officer and the arrestee – this may also cross the line as violative of basic fairness pursuant under the constitutional right to due process.

Threats to one’s children such as they will be “taken away” from a parent or the parent would lose government benefits for them if they did not “cooperate” have been found to violate basic fairness.

So Called “Weakened” Condition Defendants

At times a defendant may be in a weakened condition as a result of lack of sleep while in custody or as a result of mental illness. The United States Supreme Court held in Colorado v. Connelly, that there must be some action by state officials that is causally related to the confession.

In Connelly the Court held that the a defendant’s unsolicited confession to a police officer was NOT involuntary because his mental illness drove him to confess.

On the other hand any analysis of involuntariness will focus on the effect of the specific interrogation techniques as that technique is applied to the unique characteristics of a particular suspect.

Courts must determine whether the police tactics at issue were coercive before examining whether defendant’s will was overborne. The Connelly case “stands for the limited proposition that a defendant’s mental condition is not in itself sufficient to make a confession involuntary”

An example of an improper technique would be defendant subjecting a suspect to a 4-hour interrogation while incapacitated and sedated in intensive-care unit. A suspect that suffers from some mental incapacity, such as intoxication or retardation – which incapacity is known to interrogating officers – may be sufficient to support a lesser quantum of coercion and call into question the validity of a confession.

If interrogating officers “reasonably should have known that a suspect is under the influence of drugs or alcohol” then a “lesser quantum of coercion” may be sufficient to call into question the voluntariness of the confession.

How To Avoid Incriminating Yourself At The Scene Of A Domestic Violence Investigation – Part II

Police Misrepresentations During The Investigation Phase of A Colorado Domestic Violence Case

It has long been held that some threats – such as threats to inform the prosecution and courts of a suspect’s refusal to cooperate, or promises to inform them of cooperation, or exaggerations and even outright lies about the evidence against the defendant do NOT necessarily render a confession involuntary.

For example -a confession is probably voluntary where the police have lied to the defendant that his co-defendant had implicated him in the crime being investigated. Another example is a confession obtained after an hour-long interrogation where the police have lied about evidence they have against the defendant, expressed sympathy toward the defendant by indicating the suspect was not a criminal and that the suspect should receive psychiatric help.

What Is The Procedure for Challenging A Confession Or Incriminating Statement?

A trial judge is given the responsibility – if challenged by the defense – of deciding the issue of a confession’s voluntariness before a jury is allowed to hear it.

The motion to suppress (the confession) is followed by a hearing on the motion. The defense lawyer alleges in the motion facts which, if true, would render the statements involuntary. If the defense establishes that a confession is involuntary – unlike a Miranda violation – a coerced confession cannot be used for any purpose, including cross-examination of the defendant at trial.

A Claim Attacking An Involuntary Confession Should Be Made When Certain Factors Are Present

In any case where there is a confession or incriminating statements – the analysis that should precede the filing of a motion to suppress the damaging evidence. The analysis should answer at least some of these important factors:

Was there some type of mental or emotional disturbance of which the police had knowledge?
Did the police make exaggerated promises or threats of harm especially to the suspect and or his loved ones?
Did the interrogation span an unusually long time?
Was there some strong pressure to solve the crime such as in child homicide cases, rapes, high profile homicides, serious assaults, or an assault on a famous person or police officer?
Is there a claim of physical abuse by the police?
Were there numerous police officers involved and present during the interrogation?

The Use Of Expert Testimony In Involuntary Confession Cases

The use of expert testimony called by the defense at a motion to suppress a confession can help to bolster a defendant’s assertion that a confession was involuntary. Expert testimony can assist the defense in the assertion that a confession was involuntary – or that it was false.

An expert, if allowed to testify by the court – CAN testify to the mental capacity of a defendant but cannot give and opinion on whether a defendant was telling the truth in the police interview.

Attacking The Reported Confession – A Close Look At The Police Reports Containing The Incriminating Statements

There has always been a reluctance on the part of law enforcement to record the interviews of suspects. In fact most law enforcement agencies do not record statements. The police officer most likely will take notes of the so called incriminating statements – later preparing a police report containing the alleged incriminating statements.

The police reports are often filled with inaccuracies, contradictions and unjustified conclusions. Word choices in the report are most often paraphrases – the officer’s – not the defendants.

The officer’s handwritten notes need to be studied for inclusions and omissions. Final written reports often do not properly reflect what was said and the notes likewise. Reporting officers often do not get the story statements right in light of the lapse between the time of the note-taking and the time of his report-writing.

A Few Ideas For Attacking The Alleged Confession

Your approach must be that the investigating officer’s errors are one of two things – mistaken or lying.

Police testimony is often weeks, months or even years after the investigation and therefore suspect.

Dozens of other investigations – scores of arrests – (many of them precisely like the one at trial) have occurred in the interval period and the facts of these other cases are easily confused with the present case.

Police investigate and interview hundreds of arrestees, suspects and witnesses in the intervening period – it is simply not possible to recall the details of this case independent of those other investigations.

Police reports, such as they are, are intended to be the single most important method of preserving the evidence important to a case. Officers must rely on those reports to recall what happened in an investigation and – if properly cross examined – police can be forced to admit they have little or no independent memory of what occurred so long ago and that their reports are flawed.

Summary – How To Avoid Incriminating Yourself At The Scene Of A Domestic Violence Investigation

The Fifth Amendment gives you the right to never be a witness against yourself.

You should never talk to the police because:

- - You will never – ever “talk your way out” of the case and you will only do damage to your case.
  - Whether you are innocent or guilty or something in between – you can easily be manipulated into making incriminating statements.
  - If you are innocent and deny your guilt you may get carried away and tell some little lie or make some little mistake that can hurt you at trial in ways you could never foresee. Your words will be twisted (trust me on this) and even minor mistakes may jeopardize your freedom.

In one famous United States Supreme Court case a justice wrote

“One of the Fifth Amendment’s basic functions is to protect the innocent who otherwise might be ensnared by ambiguous circumstances. Truthful responses of an innocent witness as well as those of a wrongdoer may provide the government with incriminating evidence from the speaker’s own mouth.”

How To Avoid Incriminating Yourself At The Scene Of A Domestic Violence Investigation

ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author – A Denver Colorado Domestic Violence Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277.

If you are charged with A Colorado crime or you have questions about How To Avoid Incriminating Yourself At The Scene Of A Domestic Violence Investigation, please call our office. The Law Offices of H. Michael Steinberg, in Denver, Colorado, provide criminal defense clients with effective, efficient, intelligent and strong legal advocacy. We can educate you and help you navigate the stressful and complex legal process related to your criminal defense issue.

H. Michael Steinberg, is a Denver, Colorado criminal defense lawyer with over 40 years of day to day courtroom experience – specializing in Colorado Criminal Law along the Front Range. He will provide you with a free initial case consultation to evaluate your legal issues and to answer your questions with an honest assessment of your options. Remember, it costs NOTHING to discuss your case. Call now for an immediate free phone consultation.

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Over 40 Years Specializing in Colorado Criminal Law Contact A Lawyer with Three Decades of Experience as a Denver Criminal Attorney at The Steinberg Colorado Criminal Defense Law Firm Today.

Important: This article is for informational purposes only and not intended to provide legal advice to any individual or group. Individuals and groups should obtain competent legal counsel from lawyers admitted to practice in the jurisdictions where they are subject to legal process.

Colorado Defense Lawyer H. Michael Steinberg provides solid criminal defense for clients throughout the Front Range of Colorado – including the City and County courts of Adams County, Arapahoe County, City and County of Boulder, City and County of Broomfield, City and County of Denver, Douglas County, El Paso County – Colorado Springs, Gilpin County, Jefferson County, Larimer County, and Weld County,…. and all the other cities and counties of Colorado along the I-25 Corridor… on cases involving …How To Avoid Incriminating Yourself At The Scene Of A Domestic Violence Investigation.