Self-Incrimination and Mind Games; The Interrogation of Minors
Robert C. Phillips
Deputy District Attorney (Ret.)
January, 2016
Thirteen-year-old Elias V. lived with his parents in an apartment complex in Santa Rosa. His friend, nine-year-old Hector T. and Hector’s three-year-old sister, A.T., lived across the hall. On October 6, 2012, the three of them were in a bedroom in Hector’s apartment playing video games; Hector sitting on the floor and Elias on the bed. A.T. was also on the bed.
At some point Hector’s mother, Aurora, interrupted their privacy, entering the room just as Elias was attempting to help A.T. remove her pants. When Aurora asked what was going on, a “surprised” and “scared” Elias responded that A.T. had asked him for help taking her pants off so she could go to the bathroom.
Neither Aurora nor Hector saw Elias actually touch A.T. But later, A.T. told Aurora and others that Elias had “touched me.” Aurora did not contact the Sonoma County Sheriff’s Department, however, until October 23, some 17 days after the incident. During that 17 days, some altercations between Hector and Elias’ respective fathers occurred. Also, the landlord got reports that Aurora’s friends and relatives were drinking and partying too much, causing disturbances and other problems in the apartment building.
Aurora and her family were told on October 22nd that they were being evicted. The next day Aurora reported the incident between Elias and A.T. to the sheriff. Elias’ attorney later argued that Aurora had concocted the charge against Elias and contacted the sheriff only because she had just learned that the landlord intended to evict her family, and falsely believed that Elias’ father had put the landlord up to this.
A deputy sheriff took an incident report from Aurora on the 23rd, but did not interview A.T. herself. The next day, a detective was assigned to the case. A.T. was finally interviewed on February 1, 2013—three months after the incident—by someone trained in interviewing very young children at the Redwood Children’s Center. In a ten-minute recorded interview, A.T. reiterated that Elias had touched her, pointing to the vaginal area on a doll. The video recording of this interview, however, was not introduced into evidence and the interviewer did not testify. The gist of A.T.’s accusations made against Elias were testified to by the assigned detective who, although never personally interviewing A.T. herself, had observed the videotaped Child Center interview.
Five days after the Children Center interview, the detective went to Elias’ elementary school to interrogate him. Brought to a small office by the school principal where he was surrounded by the principal, two detectives (and another uniformed deputy sheriff outside the door), Elias was read his Miranda[1] rights. After noting that Elias hadn’t had any previous contacts with law enforcement, he was told by the detective that they knew he’d touched A.T. in a sexual manner and that he needed help for his problem.
Over the majority of the next 20 to 30 minutes, Elias adamantly denied any assertions that he’d touched A.T. in an improper manner, telling the detectives that he’d merely unzipped A.T.’s pants at her request, consistent with what he’d told Aurora the day of the incident. However, although interrogating Elias in a manner that was later described as “gentle” and “calm,” with age-appropriate questions that were “short,” and not “convoluted,” the detective began using tried and true interrogative techniques to get him to admit to what he no doubt perceived as a less culpable alternative as suggested by the detective, such as that he’d touched A.T. out of curiosity rather than a sexual interest. Also, agreeing to facts as suggested by the detective, Elias eventually admitted that he’d touched the bare skin of A.T.’s vagina for three to four seconds.
Elias was later charged in Juvenile Court pursuant to W&I § 602 for having committed a lewd and lascivious act upon a child under the age of 14 years.[2] His motion to suppress his statements to the detective was denied. Immediately after the hearing, however, Elias told an officer of the Sonoma County Juvenile Probation Department that despite his admissions made to the detective, he again denied any inappropriate touching, thus recanting his “confession.” Declared to be a ward of the court and placed on probation in this parents’ home, Elias appealed.
The First District Court of Appeal (Div. 1) reversed in a decision published in In re Elias V.[3] Elias argued on appeal that his confession was involuntary under the “due process” clause of the Fourteenth Amendment as the product of the coercive interrogation tactics that were condemned years ago by the United States Supreme Court in Miranda v. Arizona, and as such, had “overborne his will.”[4]
Although a minor is capable of legally and effectively waiving his own Miranda rights,[5] whether or not his resulting statements are to be deemed voluntary under the Fourteenth Amendment due process clause requires an evaluation of the totality of the circumstances including, but not limited to, his age, intelligence, education, and ability to comprehend the meaning and effect of his confession. The issue is whether a confession was a product of both the minor’s free will and an intelligent waiver of his or her Fifth Amendment self-incrimination rights.[6] It is the prosecution’s burden to prove the voluntariness of a confession by a preponderance of the evidence.[7]
The Court further noted that the underlying purpose of the Miranda decision was to offset the psychological, rather than physical, effects of an in-custody interrogation, which often include techniques employed by police interrogators who may “trade on the weakness of individuals,” potentially “giv(ing) rise to a false confession.”[8] In evaluating the applicability of these rules to this case, the Court launched into an extensive discussion of various studies done since the Miranda decision which include estimates that of those cases where it is determined that a defendant was wrongly convicted, somewhere between 14 to 25 percent involved false confessions. And of those cases, about 35% of the proven false confessions were obtained from suspects under the age of 18. This, the court believes, and as demonstrated in an “extensive body of literature,” is because juveniles are “more suggestible than adults, may easily be influenced by questioning from authority figures, and may provide inaccurate reports when questioned in a leading, repeated, and suggestive fashion.”[9]
Police interrogators today receive training from various sources in interrogation techniques that are intended, ostensibly, to motivate criminal suspects to open up to their interrogators and admit culpability where culpability exists. But taken too far, such techniques can also generate false confessions, particularly from the young and less criminally sophisticated.
The detective in this case, whether intentionally or not, used many of the interrogative techniques suggested by the experts to break a suspect’s will and obtain a confession. For instance:
(1) Choosing Elias’ school, and using a small, private room to conduct the interrogation, where he was surrounded by authority figures, as opposed to interviewing him at home where he would have had access to supportive family members, tends to generate anxiety in a suspect. The mere fact of police questioning of a minor in the schoolhouse setting may also have a coercive effect because the child’s presence at school is compulsory and his disobedience at school is cause for disciplinary action.[10]
(2) Confronting the suspect with accusations of guilt, assertions that may or may not be supported by evidence, real or manufactured, and refusing to accept alibis and denials. Young Elias in this case was told right up front that the detectives knew he had touched A.T. inappropriately, that they did not what to hear any denials, and that they only needed to find out why he did the crime.[11]
(3) Offering sympathy and moral justification for a suspect’s acts, introducing themes that minimize the crime and lead him to see a confession as an expedient means of ending the interrogation. The initial aggressive nature and persistence of the detective’s questioning in this case, followed up by inferring to Elias that it might not be as serious as it appeared, was part of an overall approach referred to in the literature on interrogation as “maximization/minimization.” This involves a “cluster of tactics” designed to convey two things. The first is that the interrogator has a “rock-solid belief” in the suspect’s guilt, making all denials unbelievable and useless. Such a tactic includes making a direct accusation of guilt, overriding objections, and citing evidence, real or manufactured, to shift the suspect’s mental state from confident to hopeless. In contrast, “minimization tactics,” sometimes referred to as the “false choice” strategy, are designed to provide the suspect with a moral justification and face-saving excuse for having committed the crime in question; a tactic that communicates by implication that leniency in punishment is forthcoming upon confession. Here, the detective came at Elias with unequivocal accusations of guilt, followed up by offers of a face-saving alternative when it was suggested to him that by touching A.T., he was only attempting to satisfy his curiosity as opposed to feed some sick sexual desire.[12]
(4) Using false and non-existing evidence is legally acceptable in some circumstances. However, it is also known to lead to false confessions. Here, the detective told Elias that A.T. had “explained it perfectly,” and that Aurora “walked in and saw” him touch A.T.’s vagina, neither of which was true.[13]
(5) The “lie detector ploy:” In this case, the detective at one point threatened to subject Elias, against his will, to a lie detector test that would definitively reveal the falsity of his denials. Studies have shown this tactic as being among the most common interrogation techniques that result in false confessions.[14]
Overall, while the detective’s interrogation style may have been “gentle” and “calm,” with questions that were appropriately “short,” and not “convoluted,”[15] some of the ploys used to wrangle a confession from the 13-year-old suspect constituted what the Court referred to as “dominating, unyielding, and intimidating.”[16] The Court therefore found Elias’ statements to have been obtained involuntarily, based upon a combination of three major factors: (1) His youth, which rendered him “most susceptible to influence and outside pressures;” (2) the absence of any evidence corroborating his inculpatory statements, A.T.’s accusations being as vague as they were, and with no witnesses or physical evidence; and (3) the likelihood that the detective’s use of deception and overbearing tactics would induce involuntary and untrustworthy incriminating admissions.[17] The Court, therefore, reversed the Juvenile Court’s true finding.
The Court here ends this decision with an additional thirteen pages[18] of gratuitous, although somewhat enlightening, lecture, telling us that while many of the interrogation techniques discussed here may be of some value when used on adult and criminally sophisticated suspects, they are totally inappropriate when dealing with juveniles, the weak-willed, or the criminally unsophisticated. One might refer to such interrogation tactics as playing “mind games” with an accused. While using such tactics may help with a police officer’s case clearance statistics or a prosecutor’s conviction rate, they don’t necessarily result in justice being done. In this case, for instance, Elias did not confess to anything, or use any descriptive language, that wasn’t spoon fed to him first by the detective. The inherent suggestiveness of leading a 13-year-old youth through an admission of guilt will make the result inherently suspect in just about any case.
[1] Miranda v. Arizona (1966) 384 U.S. 436
[2] P.C. § 288(a)
[3] (2015) 237 Cal.App.4th 568
[4] Id., at p. 571
[5] People v. Lara (1967) 67 Cal.2nd 365, 390-391
[6] In re Elias V., supra, at p. 576
[7] People v. Linton (2013) 56 Cal.4th 1146, 1167
In re Elias V., supra, at p. 577
[8] In re Elias V., supra.
Miranda v. Arizona, supra, at p. 455 & fn. 24
[9] In re Elias V., supra, at pp. 576-579
[10] Id., at p. 581
[11] Id., at pp. 582-583
[12] Ibid.
[13] In re Elias V., supra, at p. 584
[14] Id., at pp. 584-585
[15] Id., at p. 575
[16] Id., at p. 586
[17] Id., at pp. 587-588
[18] Id., at pp. 587-600
