have your client create a verbatim account of the interrogation, who was present, where were they seated, what was said, what was asked, what did the client say, how did he feel.
Motion to Suppress Statements
go beyond Miranda to discuss the coercive nature of the interrogation, the manner of questioning (alternative question), use of hypotheticals, and the documenting of yes/no answers as "the suspect admitted that XYZ. . ."
Motion in Liminie for Evidence Rule 104 Hearing
to exclude non-scientific "expert" testimony -- also to exclude officer's "observations" of defendant/suspect's conduct during the interrogation (squirming, guarded posture, etc., indication of 'deceptive' behavior based on the behavioral analysis interview / bedrock of polygraph data from Reid/Inbau)
Rule 104. Preliminary Questions -- Preliminary questions concerning the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.
Subpoena Law Enforcment Training Materials
obtain not only copies of the officer's list of courses that he's taken in interviewing and interrogation, but then subpoena the underlying training materials -- what items did the officer think were important enough to write down? Cross examine on those points. Doesn't it say right there in the book that you aren't supposed to use the technique on juveniles, those with mental illness, who are intoxicated, etc.
Challenge During Cross Examination
a) Time element [Interview lasted 90 minutes, Began testifying at 2:27 pm, so 38 minutes; part of testimony was credentials, other cases, setting the scene , therefore 1 hour of interview not presented to the jury]
b) Did they properly use Reid? "Essentials of Reid Technique, Criminal Interrogation & Confessions"
c) Blow up & foam core board of pages of discovery -- talk about what is documented and what is not , like all of the denials & the monologue of the officer
d) Areas where confession inconsistent with the evidence / accusation
e) Subpoena duces tecum -- training materials of the officer from any and all interviewing or interrogation courses attended. Do this far enough before trial that you have the opportunity to review their materials.
f) For the aggressive detective, save a closing argument: "Ladies & Gentlemen, If you think he's a jerk here, in the civility of
Jury Instructions -- suggest special instructions in addition to the standard
You have heard testimony that the defendant made a statement. It is for you to decide (1) whether the defendant made the statement, and (2) if so, how much weight to give to it. In making those decisions, you should consider all of the evidence about the statement, including the circumstances under which the defendant may have made it and the impact of any police techniques used to induce such a statement.
Modified 9th Circuit Model Instruction
You have heard evidence that the investigating officers had access to recording equipment in this case and chose not to use it to record their conversation with the defendant. You may consider this fact against the state when considering whether the defendant's statement was properly related to you.
Get an Expert
Social Science demonstrates both that jurors find videotaped or written confessions extraordinarily persuasive evidence, finds jurors don't understand and are unable to take into account false confessions, and that many jurors discount entirely the possibility that those confessions might be wrong.
Rule 702. Testimony by Experts
If specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.