Analyzing The 'Voluntariness' of a Confession When There Is A Language Barrier

Posted By Michael || 7-Dec-2015

Analyzing The ‘Voluntariness’ of a Confession When There Is A Language Barrier

December 2015

By 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 secured." 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 voluntarily. 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 the statements." 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. Id.

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:

  1. whether the defendant was in custody;
  2. whether the defendant was free to leave;
  3. whether the defendant was aware of the situation;
  4. whether the police read Miranda rights to the defendant;
  5. whether the defendant understood and waived Miranda rights;
  6. whether the defendant had an opportunity to confer with counsel or anyone else prior to or during the interrogation;
  7. whether the statement was made during the interrogation or volunteered later;
  8. whether the police threatened [the] defendant or promised anything directly or impliedly;
  9. the method [or style] of the interrogation;
  10. the defendant's mental and physical condition just prior to the interrogation;
  11. the length of the interrogation;
  12. the location of the interrogation; and
  13. 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." Id.

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 Miranda advisement.)
  • 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.

Categories: Criminal Defense

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