Preparing and Litigating Motions to Suppress Statements and Confessions

1.  Be aware of the psychological impact of confessions

    --The mere mention of the word changes the attitudes of judges, prosecutors, jurors and defense lawyers. “Confessions” destroy the adversarial process.

     --A large percentage of confessions are false, in whole or in part.

2. Discover the statements: “The state was obligated to disclose to Mason any statement that Mason made. See Fla.R.Crim.P. 3.220(b)(1)(C). The fact that the witness was on the state's witness list and Mason failed to depose him does not vitiate the state's discovery violation.” Mason v. State, 654 So.2d 1225 (2d 1995)

3. A motion to suppress statements can be filed at any time before trial, or even during trial. Fla. R. Crim. Pro. 3.190(i)

4. The key question: Was the statement voluntarily made? The requirement of the Fourteenth Amendment is that the trial judge make a determination that a confession was freely and voluntarily given before it is to be considered by a jury. Jackson v. Denno, 378 U.S. 368 Finding must be made with “unmistakable clarity.”

 a) Promises: Confessions are not deemed freely and voluntarily given if they have been elicited by direct or implied promises of leniency. State v. Walter, 970 So. 2d 848, 851 (Fla. 2d DCA 2007). Thus where an officer offers to “help” or “fix things” without clarification on the limits of the officer's authority, courts have found that a defendant's resulting confession was involuntary. See Day v. State, 29 So. 3d 1178, 1181 (Fla. 4th DCA 2010); Ramirez v. State, 15 So. 3d 852, 856 (Fla. 1st DCA 2009).    Dermio 112 So.3d 551 (2d DCA 2013)

Better case: Day v. State, 29 So. 3d 1178   4th Dist. 2010

b) Threats or Coercion: “Once it is established that there were coercive influences attendant upon an initial confession, the coercion is presumed to continue "unless clearly shown to have been removed prior to a subsequent confession." State v. Outten, 206 So. 2d 392, 396 (Fla. 1968)

5.    Miranda issues:

•       Whether the defendant was "in custody"? (if so, why? Illegal arrest/detention = suppression: B.S. v. State, 548 So.2d 838 (3^rd 1989) (police station confession was improperly admitted as the product of a non-consensual confinement)

•       Where the statements in response to "interrogation?" "Interrogation takes place ... when a person is subjected to express questions, or other words or actions, by a state agent, that a reasonable person would conclude are designed to lead to an incriminating response." Traylor, 596 So.2d at 966

•       If the defendant was in custody and in response to interrogation, then were the Miranda warnings properly given?

•       If so, did the defendant make a intelligent, voluntary and knowingly waiver?: “To determine if a waiver is valid a court must make two inquiries. First, the court must determine if the waiver was voluntary in the sense that it was the product of free and deliberate choice rather than intimidation, coercion, or deception. Second, the court must determine whether the waiver was executed with a full awareness of the nature of the rights being abandoned and the consequences of their abandonment., the State has the burden of proving the waiver is valid by a preponderance of the evidence. “State v. Sliney, 699 So.2d 662, 668 (Fla. 1997)

•       Waiver of Miranda should be in writing Traylor, 596 So.2d 957. 966

•       Was statement recorded? If not, is it reliable.

6.  Trial issues:

 --carefully review statement and redact irrelevant, inadmissible portions.

--Be on lookout for Detective confronting Defendant with guilt: Mohr v. State, 927 So.2d 1031 (2^nd DCA 2006)(The jury could not reasonably have been expected to disregard the aspersions of guilt created by the detective's word)

--You can litigate voluntariness before the jury, and call expert witnesses on false confessions. Boyer v. State, 825 So.2d 418 (1^st DCA 2002)

 -- Jury Instruction:: “A (Defendant’s) statement should always be considered with caution and be weighed with great care to make certain it was freely and voluntarily made.  . . .  If you conclude the defendant’s out of court statement was not freely and voluntarily made, you should disregard it.”

7. What if you want the Defendant’s statement admitted? The State may not be able to resist. But if they do, See Judge Farmer’s dissent in Cotton v. State, 763 So.2d 437, 445-46, or consider whether the statement falls under a hearsay exception/

8. Appeals:

   Orders denying motions to suppress confessions are not dispositive unless stipulated to by the parties. England v. State, 46 So. 3d 127, 129 (Fla. 2d DCA 2010)

    At trial you must renew your objection at the time the statement is admitted.