How far is too far in causing suspects to talk before charging?

Law enforcement uses different techniques to cause suspects to make statements before formal charging. In our criminal defense practice, we have seen investigators make material misstatements, cajole, threaten or promise to not make an immediate arrest to get suspects to talk. In one case, a homicide detective expressly lied to our 18-year-old client about being named a suspect in the multiple-murder case by the co-defendants, even though they said no such thing.

A recent appellate decision has drawn a line at how far the police can go to elicit statements from suspects. In People v. Jimenez, the 4th District Court of Appeal reversed the defendant's first-degree murder conviction, finding that his confession to law enforcement was unconstitutionally coerced by the arresting officers' threat to charge his teenage sons with murder if he did not admit his crime. 2021 DJDAR 12715 (Dec. 14, 2021), as modified 2021 DJDAR 12815 (Dec. 16, 2021), 2022 DJDAR 369 (Jan. 11, 2022). The majority opinion drew a sharp dissent which focused on Jimenez's forfeiture of the Sixth Amendment challenge to his confession by failing to raise it in the trial court, as well as the merits of the involuntariness analysis. The facts of the case are striking.

In May 2016, a sheriff's deputy was on patrol around midnight when he saw three males in an open field with two trash cans. The males quickly ran to their nearby vehicle and sped away. The deputy gave chase, believing the individuals may have been engaged in illegal dumping. When he attempted to pull the vehicle over, it sped away. After a few blocks, the vehicle suddenly made a U-turn and returned to where the trash cans had been left. The deputy saw the driver of the suspect vehicle lean out of the window, lift the lid of one of the cans, and use a lighter to set fire to its contents. The deputy rammed the suspect vehicle to prevent the driver from destroying evidence.

The suspect vehicle fled a second time, but was this time successfully pursued by multiple officers and stopped. The occupants were identified as Jimenez and his two sons, aged 14 and 17. Bizarrely, the suspects were able to begin fleeing again and were only arrested after a second high-speed chase in which Jimenez struck several police vehicles and finally attempted to flee on foot.

When officers returned to the two trash cans which had initially drawn the deputy's attention, they discovered the dead body of Morris Barnes. Barnes had been stabbed multiple times. A hunting knife was found in Barnes' jacket pocket. The body had been soaked in gasoline. A search of Jimenez's garage revealed blood stains on the floor which appeared to have been partially cleaned up. Jimenez's stepmother-in-law told police that Jimenez had mentioned that he was going to "take care of" someone named "Maurice."

Officers interrogated Jimenez, who readily admitted to stabbing Barnes, whom he knew as "Maurice," to death. He explained that he believed Barnes was a gang member and that Barnes had informed his confederates that Jimenez grew marijuana at his home. Jimenez feared a home invasion in which his elderly, disabled mother might be harmed by Barnes or other gang members. As Jimenez continued, his confession began to conflict in several ways with the physical evidence. For example, Jimenez claimed to stab Barnes only in an upward motion, where Barnes' wounds indicated the opposite. Jimenez initially claimed to stab Barnes only once, and only agreed that he stabbed him multiple times after prompting from a detective. Jimenez claimed to have disposed of Barnes' clothes along with the body in the trash can, but no clothes were found.

At trial, Jimenez testified that he gave a false confession because law enforcement threatened to charge his sons with murder. While it did not happen at the precise time Jimenez testified to, a video of his interrogation did corroborate that officers threatened to charge his sons with murder. The recording of Jimenez's entire confession was admitted into evidence without objection from Jimenez's attorney. Jimenez told the jury that he had discovered the body in the trash can, which an unknown third party had left in front of his house. He did not call law enforcement because he had "lost faith" in them after a prior incident. Jimenez could not explain how he knew the body had been stabbed. He claimed his stepmother-in-law had lied about his prior threat to "take care of" Maurice because she never liked him.

In reversing Jimenez's murder conviction, the Court of Appeal applied the well-settled principles that the constitution forbids the use of an involuntary confession for any purpose and that a confession induced by an explicit law enforcement threat to arrest or prosecute a close relative generally renders a confession involuntary. Here, the court found that the causal link between Jimenez's confession and the threat of his two sons being prosecuted for murder was clear. The lead detective, after telling Jimenez that his sons were afraid, explicitly threatened to charge them with Barnes' murder. In response, Jimenez offered to provide a statement. At that point, the detective responded that once he did so, he could "clear them from this and then we'll move on," and that the detective wanted "to be able to try to help you and your boys, mostly the boys," "[s]o we don't have to make them criminals."

The Court of Appeal did recognize, after surveying federal authority, that a threat to charge a family member is not unconstitutionally coercive where law enforcement actually has probable cause to do so. In other words, where the family member is arrested, or threatened with arrest, merely as a means of psychologically coercing the suspect into making a statement, the resulting confession is involuntary. On the other hand, where the family member is also a legitimate suspect, discussion by law enforcement of possibly charging them or questioning the suspect about their relative culpability is a legitimate investigative tactic. Here, the court concluded that law enforcement lacked probable cause to arrest Jimenez's sons for the murder itself, while admitting that there may have been cause to suspect them of being accessories after the fact by assisting their father in disposing of the body.

Because the majority could not find that Jimenez would have been convicted of first-degree murder, as opposed to second-degree murder, or another lesser crime such as voluntary manslaughter, in the absence of the confession, it reversed his conviction. The dissent objected to much of the majority's analysis, including its finding that there was no probable cause to arrest Jimenez's sons. It objected most strenuously, however, to the fact that Jimenez's constitutional claim was entertained at all for the first time on appeal. Prior cases have held that involuntary confession claims are "poor candidates" for first-time consideration on appeal as they are inherently fact-bound inquiries that frequently involve questions of witness credibility which are best assessed by a trial court judge viewing the witnesses in person.

Perhaps most compellingly, the dissent addressed the majority's argument that the government need not be given an opportunity to present evidence rebutting the claim of involuntariness -- it had no opportunity to do so below because Jimenez never objected to the introduction of his confession -- because the interrogation was video and audio recorded. The dissent argued that a recording eliminates doubt as to what was said, but cannot supply the crucial information about what effect the words had on the suspect, which is the critical determination in a voluntariness inquiry. The dissent would have found that Jimenez forfeited the constitutional issue and must, if he is to raise it at all, assert ineffective assistance of counsel for failing to raise the issue in the context of a habeas petition.

The defense bar will cite Jimenez for the proposition that any explicit threat to prosecute a close relative, particularly a child, where the relative is not clearly a suspect for the same crime that is the subject of the interrogation, renders the defendant's subsequent confession involuntary. 