Policy Text
JACKIE LACEY
DISTRICT ATTORNEY LOS ANGELES COUNTY DISTRICT ATTORNEY’S OFFICE
ONEMINUTE
BRIEF
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NUMBER : 2020-29 DATE : 09-03-20 BY: Devallis Rutledge TOPIC : Attenuating Coercion
ISSUE : If an interrogating officer coerces a statement from a suspect, does the initial
use of coercion taint all subsequent statements, or can th e taint be attenu ated?
To be admissible in court for any purpose, a suspect ’s statements must be voluntary ,
in the sense that they were not coerced by o fficial mistreatment, threats or promises of
leniency. Bram v. US (1897) 168 US 532 , 542 -43. See 1MB 2010 -08 fo r 16 examples of
improper inducements. “[A]ny criminal trial use ag ainst a defendant of his involuntary
statement is a denial of due process of l aw,” in violation of the Fourteenth Amendment.
Mincey v. Arizona (1978) 437 US 385, 398 .
But the improper use of official coercion to produce an involuntary statement does not
necessarily mean that no voluntary statement can later be obtained :
“The Fourte enth Amendment does n ot protect one who has admitted his guilt because
of forbidden inducements , against the use at trial of his subsequent confessions under all
possible circumstances. The admissibility of the later confession depends upon the same
test—is it voluntary ?” Lyons v. Oklahoma (1944) 322 US 596, 603 (physical mistre atment by
a deputy sheriff to obtain a statement 12 hours earlier did n ot taint a later confession at a
different location, made without coercion , to different interrogators, in a di fferent jurisdiction ).
“[T]his Court has never gone so far as to hold that making a confession under
circumstances which preclude its use, perpetually disables the confessor from m aking a
usable one after those conditions have been removed .” US v. Bayer (1947) 33 1 US 532 ,
541 (coercive effects of the first inte rrogation were dissipated by the passage of six months
before the second interrogation took place , under different circumstances).
This information was current as of publication date. It is not intended as legal advice. It is
recommended that readers check for subsequent developments, and consult legal advisor s to ensure
currency after publication. Local policies and procedures r egarding application should be observed.
LADA ONE -MINUTE BRIEF NO. 20 20-29 PAGE 2
“A subsequent confession is not the tainted product of the first me rely be cause, ‘but
for’ the improper police conduct, the subsequent confession would not have been obtained. ”
People v. McWhorter (2009) 47 Cal.4th 318, 360 (suspect’s inadmissible murder confession ,
improperly coerced by a promise to release the suspect ’s wife in exchange for the suspect ’s
confession , did not taint his subs equent statement made to a diffe rent officer, eight days later,
where the second officer did not exploit the earlier stateme nt).
“When a pr ior statement is actuall y coerced, the time that pass es between
confessions, the change in place of interrogations, and the change in identity of the
interrogators all bear on whether that coercion has carried over into the second confession. ”
Oregon v. Elstad (1985) 470 US 298, 310.
● Interrogating officers should not coerce statements by using mistreat ment
(physical force or denial of medical care, sleep, food, water, or restroom breaks ), threats of
adverse consequences for the suspect ’s refusal to confess, or promises of more favo rable
treatment for the suspect or his friends or family in exchange for a statement. Not only are
coerced statements comp letely inadmissible in court for any purpose , but in some
circumstances, the interrogator and his or her agency may incur federal civil liability based
on coercive interrogation. Stoot v. City of Everett, W ashington (9th Cir. 2009) 582 Fed.3d 910.
● However, where it appears that earlier coercion may have motivated a suspect to
make an involuntary, inadmissible confession, it may still be possible to obtain a voluntary,
admissible statement by (1) allowing intervening passage of time , (2) disavowing the earlier
coerci ve condition, (3) changing int errogators , (4) changing locations , (5) readvising of
Miranda rights (if in custody) , and (6) avoiding any referen ce to the sus pect’s earlier
statements to get him to reaffirm his guilt.
BOTTOM LINE : An ear lier use of coerc ive interrog ation techni ques does not make the
suspect indefinitely off -