Legal Memo

Memorandum

To:             Megan Laughtner

From:          Austin Cromack

Date:           January 2, 2018

Re:             Karen Miller Confession

Question Presented

1. Under Kansas law, is Karen Miller’s confession coerced when she is thirty-six years old and has a master’s degree from Duke University but lacks prior experience with police?
2. Under Kansas law, is Karen Miller’s confession coerced when the interrogating officer threatened to report her cooperation, and lack thereof, to the district attorney?
3. Under Kansas law, is Karen Miller’s confession coerced when the interrogating officer denied her request to contact the outside world?

Brief Answer

1. Likely no. A court will weigh Miller’s age, intellect, and background to determine if her confession is coerced. Although Miller’s lack of experience with police is in favor of coercion, it is likely that it will be outweighed by her acceptable age and intellect to prove her confession voluntary.
2. Probably yes. Although police are able to report Miller’s cooperation, the threat of reporting her lack of cooperation is never acceptable. Since the officer threatened to report her lack of cooperation, it is likely that she was coerced.
3. Probably no. Police are expected to limit a suspect’s ability to communicate with the outside world during an investigation in efforts to limit conspiring. The officer did deny Miller’s request to speak to an accomplice who was also being interrogated at the same time. However, it is likely that the court will find this denial did not coerce her confession.

Statement of Facts

         Police arrested our client, Karen Miller, on August 29, 2017 in response to a break-in and burglary on the night of August 28 at a facility owned by the University of Kansas in Lawrence, Kansas. Officers interrogated Miller, and she confessed to her involvement during the interrogation.

Miller is thirty-five years old, holds a master’s degree from Duke University, and has no prior experience with police. While the officer interrogated her, Miller requested to speak with another suspect who was also being interrogated; the officer denied her request. During the interrogation, the officer told Miller her cooperation would be reported for her benefit but also threatened to report her lack of cooperation, saying it may result in additional charges. Miller then confessed to her involvement and the interrogation concluded.

Discussion

         A Kansas court will likely hold that Karen Miller’s confession was voluntary and not coerced. The court will analyze the totality of circumstances to determine if Miller’s confession was produced by her own “free and independent will” or by the officer’s coercion. State v. Swanigan, 106 P.3d 39, 42 (Kan. 2005). Should the confession be the product of the Miller’s own free will, it will be considered voluntary. If the confession is the product of coercion, there must be a link between the coercive conduct of the state and the confession in order for it to be rendered involuntary. Id. The burden of proving a confession is admissible rests on the prosecution with the required proof being upon a preponderance of evidence. State v. Walker, 153 P.3d 1257, 1266 (Kan. 2007).

The five factors to be considered when determining if a statement is voluntary are the accused’s mental condition; the manner and duration of the interrogation; the accused’s ability to communicate on request with the outside world; the accused’s age intellect, and background; and the fairness of the interrogating officers. Id. This memo will neither discuss the Miller’s mental condition nor the manner and duration of her interrogation.

Age, Intellect, and Background

A court is likely to find Miller’s age, intellect, and background acceptable to consider her confession voluntary and not coerced. Courts use the accused’s age, intellect, and background to understand whether or not a confession is voluntary. Walker, 153 P.3d at 1266.  

A defendant as young as twenty years old of average intelligence who has had prior experience with police is acceptable age, intellect, and background for a confession to be voluntary. Id. at 1267. In Walker, the defendant was twenty years old. Id. The court found the defendant to fall in the average range of intelligence; he was able to carry intelligent conversations with the officers. Id. The defendant had been previously interrogated by officers. Id. The court found the defendant’s age, intellect, and background was acceptable for his testimony to be voluntary. Id.

Unlike Walker, a defendant whose intellect falls below average intelligence may not be acceptable for a confession to be voluntary. Swanigan, 106 P.3d at 54. Unlike the court in Walker, the court in Swanigan found a defendant with an IQ of 76 to fall below the average range of intelligence. Id. Although this factor alone did not render the defendant in Swanigan’s confession involuntary, it was a fact the court weighed in the totality of circumstances to determine the defendant’s confession was coerced and inadmissible. Id.

Age

Since Miller is thirty-six years old, she is sixteen years older than the defendant of acceptable age in Walker. Thus, a court will also likely find Miller’s age to be acceptable for her confession to be voluntary.

Intellect

Miller’s intellect is much more similar to that of the defendant in Walker than the defendant in Swanigan. The transcript of Miller’s interrogation shows her ability to converse intelligently with police similar to the defendant in Walker. The court will likely note how Miller’s master’s degree from Duke University shows Miller neither appears to have a low IQ like the defendant in Swanigan nor similarly fall below the average range of intelligence. For these reasons, a court is likely to find Miller’s intellect acceptable for a voluntary confession.

Background

However, a court may consider Miller’s lack of experience with police unacceptable and her confession therefore coerced. Unlike the defendant with acceptable background in Walker, Miller lacks previous experience with police and has never been interrogated. This is one component the court will weight in favor of Miller’s confession being involuntary.

Still, the court will consider each element – age, intellect, and background – in the totality of the circumstances. Since Miller’s age and intellect are more than likely acceptable, a court will likely find these together outweigh her lack of background with police. Therefore, a court will find Miller’s confession a product of free and independent will.

Fairness of Officers

The officers probably acted fair enough in Miller’s interrogation for her confession to be voluntary and not coerced, although this is debatable. An officer is permitted to report a defendant’s cooperation during an interrogation; however, an officer’s threat to report a defendant’s lack of cooperation is never acceptable. Swanigan, 106 P.3d at 41-42.

The defendant in Swanigan argued the officer was unfair because the officer told him his cooperation, or lack thereof, would determine whether he was dealt with gently or harshly. Id. at 45. The officer explained the outcome would be better for the defendant if he cooperated. Id. The officer simultaneously threatened that the defendant’s lack of cooperation would result in a negative report and added charges. Id. The court found that although the officer was permitted to report the defendant’s cooperation as a reward, his threats to report the defendant’s lack of cooperation was impermissible and coercive because if the defendant refused to confess, he would likely suffer more severely for not confessing. Id. at 51-52.

In comparison to the police in Swanigan, the officer who interrogated Miller explained that her cooperation would be reported to the district attorney to her benefit. The officer interrogating Miller likewise mimicked the officer in Swanigan and threatened that her lack of cooperation would also be reported to the district attorney, which would potentially result in additional charges. Although the officers were permitted to use Miller’s cooperation as a reward, they were not permitted to threaten her lack of cooperation would result in negative consequences.

A court will likely find the lack of fairness of the officers to be unacceptable and coercive; however, it alone will not render Miller’s confession involuntary. The court in Swanigan found that the threats made by officers were only one factor to be viewed in the totality of circumstances to determine the free and independent will of the confession. Id. at 52. While it is unacceptable that the officers were unfair, a court will consider this factor in the totality of circumstances to likely find that Miller’s confession still remains voluntary and not coerced.

Contact with the Outside World

         The court will likely hold Miller’s inability to contact with the outside world was not coercive. While isolation with the outside world can be something to render an interrogation coercive, it is to be expected that police will take steps to limit the ability of potential witnesses and suspects to communicate and, potentially, conspire during an investigation. Walker, 153 P.3d at 1267.

         Refusal of a request to communicate with the outside world is not per se coercive. Id. In Walker, the officers denied the defendant contact with the outside world, including four instances where the defendant requested to speak with a family member. Id. at 1266-67. When the defendant asked to speak with his father, the officer said not at the moment. Id. The officers were reluctant to permit the defendant’s communication with the outside world when they believed the defendant’s motivation for seeking outside contact was to gather information. Id. The court found that in this case, neither the defendant’s number of requests, the context in which they were made, not the police officers’ responses made the defendant’s inability to communicate coercive. Id.

         When Miller requested to speak to an outside contact, the officer responded similarly as the officer in Walker, saying she might be able to talk to him later. Miller, unlike the defendant in Walker, did not ask to communicate with multiple outside contacts and was only denied once. Unlike the defendant in Walker, Miller’s requested contact was also being interrogated by police, which more than likely resulted in the denial of her request to limit her ability to conspire and gather information. A court will likely decide, as it did in Walker, that the officer was not coercive in denying communication.

It is possible that the officer’s denial to Miller’s request prevented her from attempting to reach alternative contacts, which could be seen as coercive. Still, the court will likely hold that Miller’s inability communication with the outside world was not coercive and her confession voluntary.

Conclusion

Ultimately, a court will likely conclude under Kansas law that Miller’s confession is voluntary and not coerced. Although the fairness of the officer will likely be viewed as unacceptable, when considered in the totality of the circumstances alongside the other two acceptable factors – age, intellect, and background and contact with the outside world – a court is likely to find her confession the result of free and independent will and not the result of coercion.