Analyzing The ‘Voluntariness’ of a Confession When There Is
A Language Barrier
Atty. Michael D. Evans,
The Evans Firm, Centennial, CO
The topic of this article provides you with cases and tools to defend your
client on statements or confessions in a criminal case in Colorado when
there is a language or cultural barrier.
First Things First
No person shall be compelled in any criminal case to be a witness against
himself. U.S. Const. 5th Amendment. See also Colo. Const. Art. II Sec.
18. A defendant's statements are admissible at trial only if he makes
those statements voluntarily.
People v. N.A.S., 2014 CO 65, P6-P7 (Colo. 2014) (citing U.S. Const. amends. V, XIV; Colo.
Const. art. II, § 25);
Jackson v. Denno, 378 U.S. 368, 386 (1964). This includes both the prosecution’s case
in chief and instances of impeachment.
People v. Theander, 295 P.3d 960, 969 (Colo. 2013). A defendant in criminal case is deprived
of due process of law if his conviction is founded, in whole or in part,
upon an involuntary confession, without regard to truth or falsity of
confession, and even though there is ample evidence aside from confession
to support conviction. U.S.C.A. Const. Amend. 14; See also Colo. Const.
Art. II Sec. 25;
People v. McIntyre, 2014 CO 39, P15 (Colo. 2014);
Jackson v. Denno, 378 U.S. 368 (1964).
The government may not coerce the defendant into confessing evidence of
his guilt; rather, such evidence must be "independently and freely
McIntyre, 2014 CO 39, P15. If the defendant makes a prima facie showing of involuntariness
at a suppression hearing, the prosecution then bears the burden of establishing
by a preponderance of the evidence that he in fact made the statements
McIntyre, 2014 CO 39, P15.
The voluntariness of a confession or an inculpatory statement is determined
by considering the totality of the circumstances including the events
and occurrences surrounding the statement and the mental condition of
the defendant at the time of the inculpatory statements.
People v. Miller, 829 P.2d 443, 445 (Colo. Ct. App. 1991). See also
Mincey v. Arizona, 437 U.S. 385 (1978);
People v. Smith, 716 P.2d 1115 (Colo. 1986). The focus of the voluntariness inquiry is
whether, under the totality of the circumstances, the behavior of the
official was coercive so as to overbear the defendant's will in making
People v. McIntyre, 2014 CO 39, P20, P32 (Colo. 2014). Voluntariness should not be ascertained
through rote tabulation. Rather, analysis of these factors informs a court's
decision as to the larger inquiry: whether, under the totality of the
circumstances, the police overbore the defendant's will.
To determine voluntariness, a court first examines whether, under the totality
of the circumstances, a police officer's conduct was "'coercive
so as to overbear the defendant's will.'"
People v. N.A.S., 2014 CO 65, P20 (Colo. 2014). In the event that the police officer's
behavior was inappropriately coercive, we then consider whether it "'played
a significant role in inducing the statement[s].'"
Id. When evaluating coercion, we look to the following non-exhaustive factors:
- whether the defendant was in custody;
- whether the defendant was free to leave;
- whether the defendant was aware of the situation;
- whether the police read Miranda rights to the defendant;
- whether the defendant understood and waived Miranda rights;
- whether the defendant had an opportunity to confer with counsel or anyone
else prior to or during the interrogation;
- whether the statement was made during the interrogation or volunteered later;
- whether the police threatened [the] defendant or promised anything directly
- the method [or style] of the interrogation;
- the defendant's mental and physical condition just prior to the interrogation;
- the length of the interrogation;
- the location of the interrogation; and
- the physical conditions of the location where the interrogation occurred.Id.
at ¶ 17 (alterations in original)
People v. N.A.S., 2014 CO 65, P20 (Colo. 2014)
To be voluntary, the totality of the circumstances must show that the accused’s
statement is the product of his free and unconstrained choice, and is
not a result of official coercion, intimidation, or deception.
People v. Humphrey, 132 P.3d 352, (Colo. 2006);
People v. Mejia-Mendoza, 965 P.2d 777, 780 (Colo.1998). In
People v. Humphrey, 132 P.3d 352, (Colo. 2006), the Court stated that the validity of a defendants
statement turns upon two elements: (1) voluntariness, that is, whether
the waiver was the product of a free and deliberate choice rather than
intimidation, coercion, or deception, and (2) knowing and intelligent
action, that is, whether the defendant was fully aware both of the nature
of the right being abandoned and the consequences of the decision to abandon it.
Id. at 882-83 (internal citations omitted);
Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986).
While no one factor is determinative, all factors are appropriate to consider
when evaluating whether the defendant was sufficiently aware of the continuing
nature of his constitutional rights as to render any subsequent statement
the result of a knowing, intelligent, and voluntary waiver of those rights.
People v. Chase, 719 P.2d 718, 721 (Colo. 1986). The defendant must have "a full awareness
of both the nature of the right being abandoned and the consequences of
the decision to abandon it." See
May, 859 P.2d at 882.;
Burbine, 475 U.S. at 421, 106 S.Ct. 1135. See also
Hopkins, 774 P.2d at 851.
Coercive governmental conduct includes "subtle forms of psychological
coercion," as well as physical abuse or threats of physical abuse.
People v. Theander, 295 P.3d 960, 969-970 (Colo. 2013) (citing
Arizona v. Fulminante, 499 U.S. 279, 287, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991)). Increasing
use of psychological coercion has led courts to consider "the mental
condition of the defendant a more significant factor in the 'voluntariness'
calculus," but a defendant's mental condition alone does not
render a confession involuntary.
Theander, 295 P.3d at 969-970. However, "the deliberate exploitation of a
person's weakness by psychological intimidation can under some circumstances
constitute a form of governmental coercion that renders a statement involuntary."
The Language & Cultural Dillema
Language and education barriers can also play a role in the voluntariness
of a defendant’s statement. See i.e.
People v. Pascual, 111 P.3d 471 (Colo. 2005). In
Pascual, the testimony of two Spanish language experts supported the trial court's
finding that the suspects and the police had difficulty communicating
with each other, thereby contributing to the nature and tenor of the interrogation.
Pascual, 111 P.3d at 477-478.
Here are some specific cases on language and culture:
People v. Redgebol, 184 P.3d 86, 95-96 (Colo. 2008) (A particular defendant's length
of time in the country, education, religion, background, age, and intelligence
however, certainly bear on the depth of understanding. Translators must
be sufficiently capable of expressing the substance of a suspect's rights.)
People v. Jiminez, 863 P.2d 981, 984-985 (Colo. 1993) (Defendant had no formal education
and his native language did not have words for concepts such as "rights".
He had a very limited vocabulary in Spanish and in English. The court
upheld the finding of the district court that the defendant did not understand,
at the time of his statement, his right to remain silent or his right
to an attorney.)
People v. Al-Yousif, 49 P.3d 1165, 1168-1171 (Colo. 2002) (Based upon the testimony of Al-Yousif's
peers and expert witnesses, the district court concluded that the defendant's
English abilities were "limited” and the defendant's cultural
background as a citizen of Saudi Arabia made it impossible for him to
understand and absorb the Miranda warnings without further explanation
or elaboration. Further, the district court concluded the defendant displayed
no lack of intelligence that would have impeded his understanding of an
effective explanation of his rights. The court upheld the finding of the
district court ruling that, when all these factors were considered together,
Al-Yousif had not knowingly and intelligently waived his constitutional rights.)
People v. Mejia-Mendoza, 965 P.2d 777, 781 (Colo. 1998) (Translators are required to transmit
everything that is said in exactly the same way it was intended, and failure
to do so invalidates a
People v. Aguilar-Ramos, 86 P.3d 397, 402 (Colo. 2004)
United States v. Garibay, 143 F.3d 534, 538-39 (9th Cir. 1998) (holding waiver was not knowing
and intelligent where advisements made in English to defendant with limited
English skills, defendant had no prior experience with the criminal process,
and was borderline retarded);
Cooper v. Griffin, 455 F.2d 1142, 1144-45 (5th Cir. 1972) (holding that in light of defendants'
mental retardation, [**22] poor reading comprehension, and lack of experience
with the criminal process, confessions obtained after defendants orally
waived right to counsel and signed written waiver forms were invalid).
About The Author:
Attorney Michael D. Evans practices in Colorado and handles criminal defense, HOA law, wrongful
death, landlord tenant, and criminal record sealing cases. The Evans Firm
is based in Centennial, Colorado. Mr. Evans have been featured and published
nationally including TIME Magazine, The New York Times, CNN, The Wall
Street Journal, CNBC, MSN, NPR, The Denver Post, CPR, The Huffington Post,
BuzzFeed, and many others. Mr. Evans has conducted over 58 jury trials
in 8 years, many appeals, and has consistently earned a 9.5 Superb AVVO
rating and 2015 Client's Choice Award, and an A+ rating with the BBB.
He is also a member of the Colorado Bar Association, American Bar Association,
Colorado Trial Lawyers Association, and the Colorado and National Association
of Criminal Defense Lawyers, just to name a few. For Michael Evans, being
a lawyer is not just a career—it’s his heart-felt passion.
He has represented literally thousands of satisfied clients in the courtroom.
He was trained by some of the best lawyers in the state at the Denver
Public Defender Office and has attended the National Institute for Trial
Advocacy, NITA. He is an avid and tenacious litigator both in and out
of the court.