Date: 06-09-2015

Case Style: In re Elias V., a Person Coming Under the Juvenile Court Law.

Case Number: A140263

Judge: Kline

Court: California Court of Appeal, First Appellate District, Division Two on appeal from the Superior Court, Sonoma County

Plaintiff's Attorney: L. Richard Braucher

Megan G. Crane and Joshua A. Teper, Center on Wrongful Conviction of Youth

Defendant's Attorney: Attorney General of California
Kamala D. Harris
Gerald A. Engler
Senior Assistant Attorney General
Eric D. Share
Supervising Deputy Attorney General
Sharon G. Birenbaum
Deputy Attorney General

Description: In an original wardship petition (Welf. & Inst. Code, § 602), appellant, Elias V.,
then 13 years of age, was alleged to have committed a lewd and lascivious act upon a
child under the age of 14 years. (Pen. Code, § 288, subd. (a).)1
Prior to and again at the
time of the jurisdictional hearing, defense counsel moved to exclude inculpatory
statements appellant made to the police on the ground they were involuntary and
therefore inadmissible under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). After a
three-day hearing, the motion was denied and the petition sustained. Elias was declared a
ward of the court and placed on probation in the home of his parents.
Elias claims his confession was involuntary under the due process clause of the
Fourteenth Amendment, as it was the product of the type of coercive interrogation
techniques condemned in Miranda, which had “overborne his will.” Contending the
statements were erroneously received in evidence and cannot be considered harmless, he
maintains the judgment must be reversed. We agree.
1
All statutory references are to the Penal Code unless otherwise indicated.
2
FACTS
Elias and his friend Hector T. lived across the hall from one another in a four-unit
apartment building in Santa Rosa. The boys usually played together at Elias’s apartment,
but on October 6, 2012, they played at Hector’s apartment in a bedroom shared by
Hector, his mother, father, brother, and sister A.T., who was then 3 years old. Hector,
nine years old at the time of the hearing, testified that while he and Elias were playing a
video game, Elias lying on the bed and Hector sitting on the floor, A.T. climbed on the
bed and lay down near Elias. Hector could not see the top of the bed from where he was
sitting and did not hear anything Elias was saying. A.T. was laughing, the bedroom door
was open, and Hector’s mother, Aurora, was in another room. The boys continued
playing their video game until Aurora entered the room. Hector testified that when she
came in, Elias was sitting on the bed. Aurora testified that when she entered the room
she saw Elias lying on the edge of the bed next to A.T. and noticed that when A.T. got up
her pants were at the middle of her leg. When Aurora asked, “what happened?” Elias
said A.T. asked him to help take off her pants because “she wanted to go to the
bathroom.” Aurora described Elias as “surprised” and “scared.”
Aurora never testified that she saw Elias improperly touch A.T. on October 6th or
at any other time. She believed he did only because the child was “talking about it all the
time,” telling her and others, “ ‘This boy, he touched me.’ He did this he did that, you
know, just in my head.” A.T. was interviewed on February 1, 2013, at the Redwood
Children’s Center (RCC) by a person trained in interviewing very young children, and the
interview was recorded, but the recording was never offered in evidence and the
interviewer did not testify. The detective assigned the case, Mechelle Buchignani,
observed the interview but was not asked about it by the prosecutor. However, on cross
examination, she stated that A.T. “did say that he touched her in the RCC interview,” 2
2
Detective Buchignani also testified, more definitively, that the child was “very
clear” about being touched by Elias “[i]n what she told her parents.” Buchignani
testified that the RCC interview lasted only 10 minutes and was a “fairly typical 3-yearold
interview.” Asked if she recalled that A.T. “doesn’t know how to count, she doesn’t
know her colors, she doesn’t know where her head is,” Buchignani responded, “I believe
she knows where her head is. She didn’t follow directions with moving the pen.”
3
and that she “showed us where he touched her” by pointing to the vaginal area on a doll.
Asked, “[so she] doesn’t point to the stomach,” the detective responded, “[l]ooked like
the vaginal area to me.”
Aurora did not contact the police until October 23, 17 days after the incident, and
her delay in reporting it became an issue at the jurisdictional hearing. The defense
maintained that Aurora concocted the charge against Elias and contacted the police
because she had just learned that the landlord intended to evict her family and falsely
believed Elias’s father had put the landlord up to this.
The landlord testified that starting before 2011, when Elias’s family moved in, she
frequently spoke with Aurora and her husband Carlos about complaints from tenants on
both floors of the building and from neighbors that people living in or visiting Aurora’s
apartment (including Aurora’s husband and children, her brothers, and others) were
playing loud music, playing volleyball and “drinking alcohol a lot” in the backyard,
obstructing the carport, and “peeing” in the yard and in the laundry room. The landlord
repeatedly told Aurora “ ‘please, you need to stop the drinking, the loud music. It just
needs to stop.’ And, like I said, I would go there at least once a week just telling them,
‘Hey, you need to cut it out.’ ”
The landlord finally realized “the complaints had gotten out of hand” when she
learned from Elias’s father that Aurora’s brother, “wanted to take a swing” at him.
Elias’s father “was scared, and you could hear it in his voice.” She evicted the family
because she was “sick and tired” of the problems; the incident with Elias’s father “put the
topping on the cake.” The landlord never told Aurora that Elias’s family asked her to
evict her family, and denied that the eviction, which took place in November 2013, was
retaliation for Aurora’s accusations against Elias. The landlord warned Aurora about
eviction on October 22, the day after she heard about the incident with Elias’s father, and
had also warned them previously that their behavior could lead to eviction, although at

Buchignani agreed that A.T. was “off into some other subject matter” when asked
questions. Asked whether the interview was so short in part because A.T. was not giving
information that would be helpful, Buchignani stated, “She gave us enough information
to believe she had been touched.”
4
another point she testified that the first time she discussed eviction with any member of
Aurora’s household was in October 2012.
Aurora complained to the police on October 23, the day after the landlord told her
that her family was going to be evicted, but she denied that this had anything to do with
Elias’s father complaining to the landlord about her family’s conduct. Her testimony on
this issue, however, was inconsistent and confusing. According to Aurora, after she
reported the incident with Elias and A.T., the landlord told Aurora’s sister-in-law that she
was going to evict Aurora because of this report. Asked whether the landlord came to
talk to her on October 20, shortly before she reported the incident to the police, Aurora
responded that the landlord came that day to pick up the rent, and she asked her son
Hector to “interpret for me and to tell her . . . [¶] [w]hat the boy, [Elias], had done to my
daughter.” Aurora testified that the landlord did not say she was going to evict Aurora,
only that she “wanted proof” of what [Elias] had done to A.T. Asked several times
whether she told the landlord that her family could not be evicted “because [Elias] had
touched [her] daughter,” Aurora refused to give a responsive answer until directed to do
so by the court, after which she stated “No.” Aurora then testified that she did not
remember any conversation with the landlord in October 2012: “I don’t remember
having spoken to [the landlord] before she gave me the eviction notice” on November
23.3
And, further confusing matters, Aurora testified that she met with the landlord on
October 9, three days after the incident, and told her “what this boy has done to my
daughter.” In response to the question why she had waited 17 days to report Elias’s
conduct to the police, Aurora said she didn’t go immediately because the landlord said
“she wanted proof. So then I said, ‘Okay. I’m going to file a report so that I can give
you proof.’ She has—my daughter has to say what happened to her.” (Italics added.)
3
Aurora testified that before the eviction notice on November 23, the landlord
had never told her of complaints from other tenants or warned her about loud music or
fights near her apartment. Aurora acknowledged that prior to October 6, the landlord had
threatened to evict her because of males from her apartment urinating in public in front of
the apartment, but stated that she had not seen “anything like that,” her family members
denied it happening, and the neighbors the landlord said had complained about it denied
having done so.
5
Aurora said she did not go to the police immediately after the incident because “I
didn’t want to get to a point where the problem gets the way that it’s turned out right
now. That is why I spoke to the landlord to tell her what kind of people she had there.”
Asked why she waited another two weeks to contact the police, Aurora said, “I did not
know what to do. My daughter . . . was always talking about the same things, saying
‘This boy, he touched me.’ He did this he did that, you know . . . so I thought if I leave
things the way they are, then my daughter’s going to end up being raped.” On October
23, a friend told her to go to the police and she did so.
After Aurora phoned the police on October 23, 2013, Sonoma County Deputy
Sheriff Carlos Chavez was instructed to look into the matter and make an “incident
report” that would be used to decide whether a detective should be assigned to investigate
the case. On October 24, Chavez met with Aurora, who told him she believed Elias “had
assaulted her daughter” on October 6th. Chavez did not interview anyone other than
Aurora before submitting his incident report to the detectives for further investigation.
Detective Buchignani was assigned to the case on October 24.
About a month after Officer Chavez took Aurora’s statement regarding Elias, he
was “dispatched” to look into a “complaint between neighbors” at the apartment house
where Elias and Aurora lived. The complainant, Elias’s father, was concerned “that his
next-door neighbors were rowdy, were constantly drinking downstairs in a picnic area,
urinating on the fence, and there may have been a challenge to fight him, and him stating
he didn’t want any problems.” Officer Chavez spoke with Aurora’s husband, related
Elias’s father’s concerns and told Elias’s father and Aurora’s husband “to stay away from
each other and be peaceful,” and “that was the end of the investigation.”
Detective Buchignani interrogated Elias on February 6, 2013, more than three
months after the case was assigned to her. At the time of the interrogation,4
Buchignani’s
knowledge of the case was apparently based solely on Aurora’s statement to Officer
Chavez, which was in turn based entirely on Chavez’s brief interview of Aurora, and
4
As we later explain (see especially discussion, post, at pp. 34-35), an
“interrogation” is significantly different from an “interview.” Interrogation is an
accusatory process involving active persuasion. An interview is a non-accusatory
investigative tool designed to gather information and normally precedes an interrogation.
6
Buchignani’s observation of the 10-minute interview of A.T.5
Buchignani stated that at
the time she interrogated Elias the Sheriff’s Office had not “[made] contact with anyone
other than Aurora.” Neither Buchignani, nor, so far as she knew, any other officer, asked
residents of the apartment complex about Elias’s behavior or whether “other children had
been disturbed by Elias or anyone else.”
On the day of the interrogation, Detective Buchignani, her partner Sergeant Ruben
Martinez, and another unidentified deputy sheriff went to the elementary school to speak
with Elias. The principal brought them to a small office used by a school counselor.
When the principal returned to the room with Elias, Buchignani introduced herself and
Sergeant Martinez, told Elias she had to tell him his legal rights, and then gave him the
admonitions required by Miranda. Asked whether he ever previously had any contact
with the police, Elias answered “no.”
The subsequent interrogation, which we later relate in greater detail, consumed 20
to 30 minutes. Throughout the session, Buchignani stated as a fact that Elias had touched
A.T. in a sexual manner and needed help for his problem of attraction to a young child.
For the vast majority of the interrogation, Elias adamantly denied Buchignani’s repeated
assertions that he had touched A.T. in an improper manner; he portrayed A.T. as a
somewhat annoying, very young child clamoring for his attention. and repeatedly
explained that he had simply unzipped the child’s pants at her request. Finally, when
Buchignani suggested Elias might have touched A.T.’s vagina because he found it
exciting or just because he was curious, Elias rejected the first suggestion and, to
Buchignani’s comment, “[b]ut you did it,” said, “[f]or curiosity.” Elias thus accepted
Buchignani’s alternative theory that he touched the bare skin of A.T.’s vagina for three to
four seconds, in the midst of playing a video game with her brother, merely “out of
curiosity.”
5
Buchignani testified that she believed Elias’s denials in the interrogation were
lies because “the child was very clear about being touched by him . . . [i]n what she told
her parents.” Asked what Aurora told her that made her believe Elias touched A.T.,
Buchignani replied, “What the child told the mother per the [incident] report.”
Buchignani met with Aurora on January 1, 2013, to discuss the RCC interview and “see
if they wanted to move forward with the case” but did not mention the contents of their
discussion in her testimony.
7
Before and again at the jurisdictional hearing, defense counsel moved to exclude
the statements on the grounds they were involuntary. On August 22, 2013, after the court
took the case under submission, the court impliedly denied the motion and ruled that the
charged offense had been committed.
In finding Elias’s statements voluntary and reliable, the court observed that
Detective Buchignani’s manner was “gentle” and “calm,” her questions “were short,” not
“convoluted,” “the questions weren’t split where there would be two responses you’d
have to use to the same single question,” and “her language usage for someone of Elias’s
age was appropriate.” The court summed up its view this way: ”Just the totality of
where the interview took place was, in the court’s view, not intimidating. It was very
short. It was only a 20-minute interview. And it complied with the current case law. I
don’t have a problem with the way the interview was conducted.” The court noted that
“Elias was able to indicate in the flow of conversation [with Detective Buchignani] if he
needed clarification of anything, and he did that a couple of times, and there was give and
take in the conversation. In other words, sometimes he asked questions too, and that’s
what really made me feel that this interview was appropriate.” The court thus impliedly
concluded that Elias’s statements were “the product of his free and rational choice.”
(Greenwald v. Wisconsin (1968) 390 U.S. 519, 521.)
After the jurisdictional ruling, the Sonoma County Juvenile Probation Department
interviewed Elias and his parents. Its report to the court states that Elias, who had never
previously been charged with any delinquency, “indicated he only tried to help the young
girl. The minor stated [that] prior to this incident, he liked helping other people and
learned this trait from his father. As a result of this incident, he no longer wants to help
others, as he feels his actions could be taken the wrong way. The minor maintains he did
not commit this offense, was at her home playing video games with the victim’s younger
brother, and the only thing he did was to try to help her.” Elias’s parents “maintain their
son’s innocence, and stated the only thing their son did was to try to help the girl. They
report the allegations stem from a dispute with the victim’s family because they blame
the minor’s father for being evicted.” Elias’s mother said the charges against Elias have
“caused a lot of conflict within the family as she told the minor’s father if he had not said
8
anything to the landlord this situation would never have occurred.” Elias’s parents also
told probation officers that “Elias grew very frustrated over these proceedings and kept
telling them he would admit to anything just to get this over with. However, they kept
telling their son not to admit to something he did not do just because he was tired and
frustrated. They believe this outcome is not ‘just,’ and they will continue their pursuit of
the truth.”
At the close of the dispositional hearing the court declared Elias a ward of the
court and placed him on probation at the home of his parents, with numerous conditions.
Notice of this appeal, which is authorized by Welfare and Institutions Code
section 800, was timely filed on November 7, 2013.
DISCUSSION
I.
The chief issue presented in this appeal is the voluntariness of the admissions Elias
made at the close of Detective Buchignani’s interrogation. The use of an involuntary
confession for any purpose in a criminal or delinquency proceeding violates a defendant’s
or minor’s rights under the Fourteenth Amendment. (Arizona v. Fulminante (1991) 499
U.S. 279.)
“The admissibility of a confession depends upon the totality of the circumstances
existing at the time the confession was obtained. (People v. Robertson (1982) 33 Cal.3d
21, 39-40; People v. Sanchez (1969) 70 Cal.2d 562, 572, cert. dism., Sanchez v.
California (1969) 394 U.S. 1025.) A minor can effectively waive his constitutional rights
(People v. Lara (1967) 67 Cal.2d 365, 390-391, cert. den. Lara v. California (1968) 392
U.S. 945 . . . [fn. omitted] but age, intelligence, education and ability to comprehend the
meaning and effect of his confession are factors in that totality of circumstances to be
weighed along with other circumstances in determining whether the confession was a
product of free will and an intelligent waiver of the minor’s Fifth Amendment rights
([Lara], at pp. 385-387).” (People v. Maestas (1987) 194 Cal.App.3d 1499, 1508.)
The federal and state Constitutions both require the prosecution to show the
voluntariness of a confession by a preponderance of the evidence. (Lego v. Twomey
(1972) 404 U.S. 477. 489; People v. Markham (1989) 49 Cal.3d 63, 71.) Voluntariness
9
turns on all the surrounding circumstances, “both the characteristics of the accused and
the details of the interrogation” (Schneckloth v. Bustamante (1973) 412 U.S. 218, 226); it
does not depend on whether the confession is trustworthy. (Rogers v. Richmond (1961)
365 U.S. 534, 543-544.) While a determination that a confession was involuntary
requires a finding of coercive police conduct (Colorado v. Connelly (1986) 479 U.S. 157;
People v, Maury (2003) 30 Cal.4th 342, 404), “ ‘ “the exertion of any improper
influence” ’ ” by the police suffices. (Hutto v. Ross (1976) 429 U.S. 28, 30.)
The issue of voluntariness presents “ ‘a mixed question of law and fact that is
nevertheless predominantly legal . . . .’ [Citation.] Hence ‘ “[o]n appeal, the
determination of a trial court as to the ultimate issue of voluntariness of a confession is
reviewed independently . . . . [¶] The trial court’s determination concerning whether
coercive police activity was present, whether certain conduct constituted a promise and, if
so, whether it operated as an inducement, are apparently subject to independent review as
well.” [Citation.] However, “the trial court’s findings as to the circumstances
surrounding the confession—including ‘the characteristics of the accused and the details
of the interrogation’ [citation]—are clearly subject to review for substantial
evidence. . . .” ’ [Citation.]” (People v. Jones (1998) 17 Cal.4th 279, 296.)
II.
As appellant asserts the techniques employed by Detective Buchignani to
overcome his will were condemned by the Supreme Court in Miranda, supra, 384 U.S.
436, we commence our analysis by discussing the portions of that opinion describing
such techniques.
The foundational theses of Miranda are that “the modern practice of in-custody
interrogation is psychologically rather than physically oriented” (Miranda, supra, 384
U.S. at p. 448), and the psychological techniques now employed by interrogators “trade[]
on the weakness of individuals,” and “may even give rise to a false confession.” (Id. at
p. 455, & fn. 24, citing Borchard, Convicting the Innocent (1932).)
The danger of false confessions is real. Studies conducted after Miranda was
decided estimate that between 42 and 55 percent of suspects confess in response to a
custodial interrogation. (Kassin & Gudjonsson, The Psychology of Confessions: A
10
Review of the Literature and Issues, 5 Psych Sci. in the Public Interest 33, 44.)6

Estimates of false confessions as the leading cause of error in wrongful convictions range
from 14 to 25 percent, and as will be discussed (see, post, at pp. 21-25), a
disproportionate number of false confession cases involve juveniles. Recent research has
shown that more than one-third (35 percent) of proven false confessions were obtained
from suspects under the age of 18. (Drizin & Leo, The Problem of False Confessions in
the Post-DNA World (2004) 82 N.C.L.Rev. 891, 902, 944-945, fn. 5 (False
Confessions).)
Since Miranda, the Supreme Court has continued to express concern about false
confessions. In Corley v. United States (2009) 556 U.S. 303, 320-321, the court observed
again that “ ‘[c]ustodial police interrogation, by its very nature, isolates and pressures the
individual,’ [citation] and there is mounting empirical evidence that these pressures can
induce a frighteningly high percentage of people to confess to crimes they never
committed.” (Ibid. ) Even more recently, the court indicated that its long-standing
concern about false confessions may be most acute in cases involving the police
interrogation of juveniles, particularly adolescents. (J.D.B. v. North Carolina (2012)
___U.S.___ [131 S.Ct. 2394, 2401] (J.D.B.).) An extensive body of literature
demonstrates that juveniles are “more suggestible than adults, may easily be influenced
by questioning from authority figures, and may provide inaccurate reports when
questioned in a leading, repeated and suggestive fashion” (Meyer & Reppucci, Police
Practices and Perceptions Regarding Juvenile Interrogation and Interrogative
Suggestibility (2007) 25 Behavioral Sciences & the Law 757, 763; see also, Ceci &
Bruck, Suggestibility of The Child Witness: A Historical Review and Synthesis (1993)
113(3) Psychological Bulletin 403-409; Dunn, Questioning the Reliability of Children’s
Testimony: An Examination of the Problematic Elements (1995) 19 Law & Psych. Rev.
203-215; Owen-Kostelnick et al., Testimony and Interrogation of Minors: Assumptions
About Maturity and Morality (2006) 61(4) American Psychologist 286-304), and that
6
The growing body of research evaluating the manner in which interrogative
practices influence suspects and lead them to confess has profited from the increasing
practice of recording custodial interrogations. (Ofshe & Leo, The Decision to Confess
Falsely (1997) 74 Denver U. L.Rev. 979, 981-982 (Decision to Confess Falsely).)
11
“juveniles aged fifteen and younger have deficits in their legal understanding, knowledge,
and decision-making capabilities.” (Redlich, The Susceptibility of Juveniles to False
Confessions and False Guilty Pleas (2010) 62 Rutgers L.Rev. 943, 952 (Susceptibility of
Juveniles); see Viljoen et al., Legal Decisions of Preadolescent and Adolescent
Defendants: Predictors of Confessions, Pleas, Communication with Attorneys, and
Appeals (2005) 29(3) Law & Human Behavior 253; Overbeck, No Match for the Police:
An analysis of Miranda’s Problematic Application to Juvenile Defendants (2011) 38
Hastings Const. L.Q. 1053, 1066-1069 (No Match).)
Noting that interrogation at that time largely took place in private, and “privacy
results in secrecy” which “in turn results in a gap in our knowledge of what in fact goes
on in the interrogation rooms,” the Miranda court relied heavily on police manuals and
texts relating to interrogation. (Miranda, supra, 384 U.S. at p. 448.) As these texts
recommend tactics that have been effectively employed to obtain confessions, they “are
used by law enforcement agencies themselves as guides . . . [and] professedly present the
most enlightened and effective means presently used to obtain statements through
custodial interrogation.” (Id. at p. 449.) These techniques, and indeed updated versions
of many of the same texts, continue to be widely used today.
John E. Reid & Associates was the largest national provider of training in
interrogation techniques at the time Miranda was decided, and still is today. The basic
course on “The Reid Technique” is predicated on the methodology first set forth in the
initial edition of Inbau & Reid, Criminal Confessions and Interrogations (1962), a classic
work which was quoted extensively by Chief Justice Warren in Miranda. The current
Reid training manual, which remains the leading law enforcement treatise on custodial
interrogation, was published in 2013. (Inbau et al., Criminal Interrogation and
Confessions (5th ed. 2013) (hereafter Criminal Interrogation).) It has been estimated that
about two-thirds of police executives in this nation have had training in the “Reid
Method.” (Zalman & Smith, The Attitudes of Police Executives Towards Miranda and
Interrogation Policies (2007) 97 J. Crim. L. & Criminology 873, 920.) 7
7
In California, local law enforcement agencies officers who may not have
attended a Reid program receive training from academies whose curricula, mandated and
12
As will be seen, many of the techniques used to interrogate Elias derive from the
Reid methodology described in Miranda. Behavioral scientists who study interrogation
techniques and their effects have concisely described the Reid Technique as follows:
“First, investigators are advised to isolate the suspect in a small private room, which
increases his or her anxiety and incentive to escape. A nine-step process then ensues in
which an interrogator employs both negative and positive incentives. On one hand, the
interrogator confronts the suspect with accusations of guilt, assertions that may be
bolstered by evidence, real or manufactured, and refuses to accept alibi’s and denials. On
the other hand, the interrogator offers sympathy and moral justification, introducing
‘themes’ that minimize the crime and lead suspects to see confession as an expedient
means of escape.” (Kassin et al., Police-Induced Confessions: Risk Factors and
Recommendations (2010) 34 Law & Human Behav. 3, 7 (Police-Induced Confessions).)8

According to these authors, the purpose of interrogation is “not to discern the truth,
determine if the suspect committed the crime, or evaluate his or her denials. Rather,
police are trained to interrogate only those suspects whose culpability they ‘establish’ on
the basis of their initial investigation.” (Id. at p. 6.)

approved by the Commission on Peace Officer Standards and Training (POST) (Pen.
Code, § 13510, subd. (a); Cal. Code Regs, tit. 11, § 1005, subd. (a)), which teach
interrogation techniques similar to those promoted by the Reid program. (Weisselberg,
Mourning Miranda (2008) 96 Cal. L.Rev. 1519, 1533-1534 and Appen. (Mourning
Miranda).)
8
“The first interrogation step is ‘a direct, positively presented confrontation of the
suspect with a statement that he is considered to be the person who committed the
offense.’ . . . [¶] The second step introduces a theme for the interrogation, a reason for
the commission of the crime, which may be a moral (but not legal) excuse or a way for
the suspect to rationalize her actions. . . . The suspect may deny involvement in the
offense, which leads to step three, overcoming denials. . . . The next steps, four through
six, guide the investigator in overcoming the suspect’s reasons why he would not or
could not commit the crime, keeping the suspect’s attention and handling a suspect’s
passive mood. [¶] Step seven is critical. Here the officer formulates alternative
questions, one of which is ‘more “acceptable” or “understandable” than the other.’ The
question is followed by a statement of support for the more morally acceptable
alternative. However, ‘[w]hichever alternative is chosen by the suspect, the net effect . . .
will be the functional equivalent of an incriminating admission.’ Steps eight and nine are
taking the suspect’s oral statement and converting it to a written confession.” (Mourning
Miranda, supra, 96 Cal. L.Rev. at pp. 1532-1533, fns. omitted.)
13
Although the Reid textbook states that “the purpose of an interrogation is to learn
the truth,” 9
it makes clear that an interrogation should not be undertaken until after
investigation points to the suspect’s likely guilt. The text emphasizes, “An interrogation
is conducted only when the investigator is reasonably certain of the suspect’s guilt. The
investigator should have some basis for believing a suspect has not told the truth before
confronting the suspect. The basis for the belief may be the suspect’s behavior during an
interview or inconsistencies within the suspect’s account, physical evidence, or
circumstantial evidence, coupled with behavioral observations. Interrogations should not
be used as a primary means to evaluate a suspect’s truthfulness; in most cases, that can be
accomplished during a nonaccusatory interview.” (Inbau et al., Criminal Interrogation,
supra, at pp. 5-6.)
Referring to the Reid text and other manuals that document interrogative
procedures employed with success by law enforcement agencies, Miranda emphasized
that “the ‘principal psychological factor contributing to a successful interrogation is
privacy’ ” and that “ ‘the interrogation should take place in the investigator’s office or at
least in a room of his choice.’ ” (Miranda, supra, 384 U.S. at p. 449.) A subject should
not be interrogated in his own home, the manuals say, because there the subject is more
likely to be “ ‘confident, indignant, or recalcitrant’ ”; and he “is more keenly aware of his
rights and more reluctant to tell of his indiscretions of criminal behavior within the walls
of his home. Moreover his family and other friends are nearby, their presence lending
moral support. (Id. at pp. 449-450.) In a private place of his own choosing, “the
investigator possesses all the advantages.” (Id. at p. 450.)
9
In response to the view of most behavioral scientists who study the subject that
the purpose of interrogation is to induce confessions, the Reid text states: “A common
misperception exists in believing that the purpose of an interrogation is to elicit a
confession. Unfortunately, there are occasions when an innocent suspect is interrogated,
and only after the suspect has been accused of committing the crime will his or her
innocence become apparent. If the suspect can be eliminated based on his or her
behavior or explanations offered during an interrogation, the interrogation must be
considered successful because the truth was learned. Oftentimes an interrogation also
will result in a confession, which again accomplishes the goal of learning the truth.”
(Inbau et al., Criminal Interrogation, supra, at p. 5.)
14
Detective Buchignani knew where Elias lived and agreed she could have spoken
with him at his home, where at least one of his parents was likely to be present. She
interrogated Elias at the school because she knew he would be there, knew the principal
and had previously met with juveniles there, and “had time to take care of the case that
day.” Elias was brought by the principal, the highest authority at the school, to a small
room that normally accommodated two people, contained a single desk and three chairs,
and “may” have had windows. Buchignani directed Elias to sit across from her and next
to the principal; Sergeant Martinez stood behind Elias, and a third officer, a uniformed
deputy, stood outside the door. As the Supreme Court has indicated, the mere fact of
police questioning of a minor in the school-house setting may have a coercive effect,
because the child’s “presence at school is compulsory and [his] disobedience at school is
cause for disciplinary action.” (J.D.B., supra, ___U.S. at p.___ [131 S.Ct. at p. 2405];
see, Commonwealth v. Bell (Ky. 2012) 365 S.W.3d 216, 224-225; No Match, supra, 38
Hastings Const. L.Q. at p. 1073.)
Like all contemporary police manuals on interrogation, those quoted in Miranda
instruct that, in order “[t]o highlight the isolation and unfamiliar surroundings” in which
the interrogation takes place, the police should “display an air of confidence in the
suspect’s guilt and from outward appearance to maintain only an interest in confirming
certain details. The guilt of the suspect is to be posited as a fact. The interrogator should
direct his comments towards the reasons why the subject committed the act, rather than
court failure by asking the subject whether he did it. Like other men, perhaps the subject
has had a bad family life, had an unhappy childhood, had too much to drink, had an
unrequited desire for women. The officers are instructed to minimize the moral
seriousness of the offense, to cast blame on the victim or on society. These tactics are
designed to put the subject in a psychological state where his story is but an elaboration
of what the police purport to know already—that he is guilty. Explanations to the
contrary are dismissed and discouraged.” (Miranda, supra, 348 U.S. at p. 450, fns.
omitted.)
The texts relied upon in Miranda also stressed the interrogator’s need for patience
and perseverance, not just kindness and stratagems, because the investigator will
15
“ ‘encounter many situations where the sheer weight of his personality will be the
deciding factor. Where emotional appeals and tricks are employed to no avail, he must
rely on an oppressive atmosphere of dogged persistence. He must interrogate steadily
and without relent, leaving the subject with no prospect of surcease. He must dominate
his subject and overwhelm him with his inexorable will to obtain the truth. He should
interrogate for a spell of several hours pausing only for the subject’s necessities in
acknowledgment of the need to avoid a charge of duress that can be technically
substantiated.’ ” (Miranda, supra, 384 U.S. at p. 451, fn. omitted.)
Conforming to most of these directives, Detective Buchignani posited Elias’s guilt
quickly and dispositively. Brushing off his repeated denials of her accusations,
Buchignani told Elias he was “obviously nervous because you’re not telling me the truth
about what happened.” Early in the interrogation Buchignani confidently declared that
Elias’s improper touching of A.T. “did happen” because A.T. “explained it perfectly.”
Ignoring Elias’s exculpatory or innocuous answers to questions regarding A.T.’s age, her
brother, and exactly where Elias and A.T. were located on the bed, as well as his
explanation that he simply unzipped A.T.’s pants when she asked him to because she
wanted to change her clothes, Buchignani repeatedly referred to Elias’s guilt as an
established fact and displayed interest only in confirming details, such as why and how
Elias committed the act, and never allowing the possibility he may not have committed
any unlawful act.
Building on Elias’s statement that, while sitting on the edge of a bed playing a
competitive video game with her brother, he turned “real fast” to help A.T. “unzip her
pants cause she wanted to change,”10 and his acknowledgment that this involved touching
“the outside of her,” Detective Buchignani’s questions, all insinuating Elias had
improperly touched A.T.’s genitals, were relentless: “when her mom walked in, how
come [A.T.’s] pants were down?”; “how come you ended up on the bed with her?”; “But
her mom walked in and you were on the bed with her”; “how many fingers did you put
inside her?”; “you touched the outside of her but you did not put fingers inside her?”;
10 Elias’s statement to Buchignani in this respect differs from Aurora’s testimony
that he told her A.T. asked him to unzip her pants so she could go to the bathroom.
16
“you touched the outside of her”; “You were on the bed and you had her pants down. So
the question again is how many fingers did you put inside of her?”; “So, you touched the
outside of her?”; “You just touched the outside of her?”; “Okay, how long did you touch
her?”; “So, your hand touched her bare vagina”; “So, I know that you touched her bare
vagina and you know that you touched her bare vagina”; “But you put your fingers in her
bare vagina”; “You’re okay with what you did?”; “You touched her”; “Why do you think
you touched her”; “so you felt like you needed to touch her vagina when you were
unzipping her pants?”; “Why were you kissing her before that whole incident?”; “How
long have you been attracted to [A.T.]?”; “How long have you known that you have an
attraction to her?”; “Why would you want to touch her?”; “You put your hand on her
vagina?”; “What happens when we bring your sister in for an interview . . . and ask her
what you do with her?”
The aggressive nature and persistence of Buchignani’s questioning was part of an
overall approach referred to in the literature on interrogation as “maximization/
minimization,” a “cluster of tactics” designed to convey two things. The first is “the
interrogator’s rock-solid belief that the suspect is guilty and that all denials will fail.
Such tactics include making an accusation, overriding objections, and citing evidence,
real or manufactured, to shift the suspects mental state from confidence to
hopelessness. . . . In contrast, minimization tactics are to provide the suspect with moral
justification and face saving excuses for having committed the crime in question,” a tactic
that “communicates by implication that leniency in punishment is forthcoming upon
confession.” (Police-Induced Confessions, supra, 34 Law & Human Behav. at p. 12.) A
convincing body of evidence demonstrates that implicit promises can put vulnerable
innocents at risk to confess by encouraging them to think that the only way to lessen or
escape punishment is compliance with the interrogator’s demand for confession,
especially when minimization is used on suspects who are also led to believe that their
continued denial is futile and prosecution inevitable. (Decision to Confess Falsely,
supra, 74 Denver U. L.Rev. 979; Gudjonsson, The Psychology of Interrogations,
Confessions And Testimony (1992); Kassin & McCall, Police Interrogations and
Confessions: Communicating Promises and Threats by Pragmatic Implication (1991) 15
17
Law & Human Behav. 233; Kassin & Keichel, The Social Psychology of False
Confessions (1996) 7 Psych. 125; Police-Induced Confessions, at p. 12.)
The maximization tactics Buchignani employed during her accusative questioning
were deceptive in a variety of ways, including the use of false evidence. She told Elias
the improper touching had happened because A.T. had “explained it perfectly,” and
Aurora “walked in and saw” him touch A.T.’s vagina, though she knew that both
representations were false and that neither Hector, who was present, nor anyone else,
witnessed even the unzipping that Elias freely admitted.
Studies demonstrate that the use of false evidence enhances the risk of false
confessions. (Kassin, On the Psychology of Confessions: Does Innocence Put Innocents
at Risk? (2005) 60 Am. Psychologist 215, 218.) “Confronting innocent people with false
evidence—laboratory reports, fingerprints or footprints, eyewitness identification, failed
polygraph tests—may cause them to disbelieve their own innocence or to confess falsely
because they believe that police possess overwhelming evidence. Innocent suspects may
succumb to despair and confess to escape the rigors of interrogation in the naïve belief
that later investigation will establish their innocence rather than seek to confirm their
guilt.” (Feld, Police Interrogation of Juveniles: An Empirical Study of Policy and
Practice (2006) 97 J. Crim. Law & Criminology 219, 313, fns. omitted (Police
Interrogation of Juveniles).)
False evidence, the use of which is forbidden in Great Britain and many European
nations (Police-Induced Confessions, supra, 34 Law & Human Behav. at p. 17; Slobogin,
An Empirically Based Comparison of American and European Regulatory Approaches to
Police Investigation (2001) 22 Mich. J. Int’l. L. 423, 443-444), was used in many cases in
this country in which defendants subsequently exonerated by DNA evidence were
wrongfully convicted based upon confessions. (Police-Induced Confessions, at p. 17;
False Confessions, supra, 82 N.C.L.Rev. at p. 904) In the United States, although
deceptive interrogation techniques do not necessarily invalidate incriminating statements
(Frazier v. Cupp (1969) 394 U.S. 731, 739; People v. Smith (2007) 40 Cal.4th 483, 505),
they are relevant in considering the totality of the circumstances (Frazier, at p. 739) as “a
factor which weighs against a finding of voluntariness [citations].” (People v. Hogan
18
(1982) 31 Cal.3d 815, 840-841, overruled on other grounds in People v. Cooper (1991)
53 Cal.3d 771, 836.)
Buchignani’s threat to subject Elias against his will to a lie detector test that would
definitively reveal the falsity of his denials—referred to in the literature as “the lie
detector ploy”—is among the most common interrogation techniques that result in false
confessions. (See, e.g., Lykken, A Tremor in the Blood: Uses and Abuses of the Lie
Detector (1981); The Decision to Confess Falsely, supra, 74 Denver Univ. L.Rev. at
pp. 1036-1041.)
Toward the end of her interrogation Detective Buchignani shifted tactics from
maximization to minimization, and it was clearly this strategy that finally induced Elias
to make his inculpatory statements. Buchignani offered Elias two possible explanations
for the sexual touching she asserted as fact, both of which she told him were completely
“understandable”: that he acted on the basis of a natural “curiosity,” and that the act was
one any normal person in his shoes would find “exciting.” As will be seen, offended by
the suggestion he was “excited,” Elias agreed to the more acceptable alternative that he
was merely “curious,” thereby admitting the felonious act. After Buchignani told Elias a
lie detector “would come back deceptive because you’re lying,” insisted “[w]hy don’t we
just get this over with and get this out there so we can get you the help you need,” and
told Elias that “[y]our fingers touched [the] skin of her vagina,” Elias allowed, “Well, I
didn’t like put my whole hand in there.” The remainder of the interrogation went this
way:11
“O: Okay, fair enough. So, I’m feeling pretty comfortable that you did not use
your fingers to penetrate her vagina but I know that you touched her vagina with your
hands, with your fingers. Okay? Why did you feel you wanted to do that? What did it
feel like, was it exciting? Was it, what was it? People your age are curious that just
happens sometimes. I understand that. Your body’s changing and things are happening
to you. If you found it exciting then . . . .
“EV: I didn’t find it exciting, and after that I found it was nasty.
11 “EV” is Elias V., “O” is Detective Buchignani.
19
“O: Okay. So after you touched her bare vagina with your fingers, you thought it
was nasty?
“EV: Yeah, like when I was smaller, my friend one time showed me her vagina
and I thought it was disgusting.
“O: Okay. So were you just curious when you touched her this time?
“EV: Curious, well I’ve been curious about things.
“O: Fair enough. Did you find it a little exciting?
“EV: I think it’s disgusting.
“O: But you did it so there must be something there. There must be some reason
why you did it. You know, this happens sometimes. There’s a driving force that you
need to deal with so the fact that you did it tells me that you found it exciting.
“EV: I’m serious, I’m dead serious, I don’t find it exciting. I think it’s like kinda
gross.
“O: But you did it.
“EV: For curiosity.
“O: How long do you think you touched her?
“EV: Well, I only touched her for like around 3 or 4 seconds because I was in the
middle of a game.”
By offering Elias alternative explanations for improperly touching A.T.—because
he “found it exciting” or “out of curiosity”—Detective Buchignani employed a so-called
“false choice” strategy. As stated in the Reid text, “[w]hen the investigator presents the
alternative question to the suspect, it is not enough simply to ask the question and then
wait for the suspect to answer. The investigator must encourage the suspect to select one
of the two options. This is accomplished through the use of positive and negative
‘supporting statements.’ [¶] A positive supporting statement is one in which the
investigator reinforces the belief that the correct choice is the one that seems to be
morally excusable or at least one that represents a less socially revolting reason for
committing the act. The investigator should state that if the positive alternative is true, it
is something he can understand.” (Inbau et al., Criminal Interrogation, supra, at pp. 298-
299.)
20
After Elias admitted he touched A.T. out of curiosity for 3 or 4 seconds, Detective
Buchignani told him he was describing a three-year-old “being a little flirtatious,” which
was blaming her for something she was not capable of doing at that age, and pressed the
point that Elias was “attracted to her . . . . Like attracted enough to touch her.” Getting
nowhere with suggestions that Elias was sexually excited by A.T., Buchignani began to
ask about Elias’s relationship with his sister. Elias denied any impropriety, adding, “I’m
barely home. I’m always here playing basketball, the Teens Club, or . . . doing
something like active, cause I’m an active person, I love sports.” At that point Elias
appears to have begun sobbing, Detective Buchignani inquired whether he needed help,
Elias responded “unintelligibly,” and Buchignani said that Elias’s father was on his way
and she was “going to talk to him and explain the situation,” then take Elias into custody
at the Juvenile Hall.
Detective Buchignani’s accusatory interrogation was dominating, unyielding, and
intimidating. We need not decide, however, whether this alone would suffice to
undermine the voluntariness of Elias’s statements. Our finding that Elias’s statements
were involuntary is based on a combination of factors: (1) Elias’s youth, which rendered
him “ ‘most susceptible to influence’ [(Eddings v. Oklahoma (1982) 455 U.S. 104, 115)],
and ‘outside pressures’ [(Roper v. Simmons (2005) 543 U.S. 551, 569).]” (J.D.B., supra,
___ U.S. at p. ___ [131 S.Ct. at p. 2405]; (2) the absence of any evidence corroborating
Elias’s inculpatory statements and (3) the likelihood that Buchignani’s use of deception
and overbearing tactics would induce involuntary and untrustworthy incriminating
admissions.
A.
Chief Justice Warren’s analysis in Miranda pertains to the psychological
techniques involved in the “active persuasion” commonly employed in the custodial
interrogation of adults. There appears to be a growing consensus—among the supporters
of those techniques, not just the critics—about the need for extreme caution in applying
them to juveniles.
As noted at the outset of our analysis, since Miranda courts have expressed
growing concern that the pressures of custodial interrogation “ ‘can induce a
21
frighteningly high percentage of people to confess to crimes they never committed’ ”
(Corley v. United States, supra, 556 U.S. at pp. 320-321), and this concern is deepest in
cases involving the custodial interrogation of juveniles. As recently stated in J.D.B.,
supra, ___U.S. at p.___ [131 S.Ct. at p. 2403] “[a] child’s age is far ‘more than a
chronological fact.’ [Citations.] It is a fact that ‘generates commonsense conclusions
about behavior and perception.’ [Citation.] Such conclusions apply broadly to children
as a class. And, they are self-evident to anyone who was a child once himself, including
any police officer or judge. [¶] Time and again, this Court has drawn these
commonsense conclusions for itself. We have observed that children ‘generally are less
mature and responsible than adults,’ [citations]; that they ‘often lack the experience,
perspective and judgment to recognize and avoid choices that could be detrimental to
them,’ [citation]; that they ‘are more vulnerable or susceptible to . . . outside pressures’
than adults [citations]; and so on. Addressing the specific context of police interrogation,
we have observed that events that ‘would leave a man cold and unimpressed can overawe
and overwhelm a lad in his early teens.’ [Citations.] Describing no one child in
particular, these observations restate what ‘any parent knows’—indeed, what any person
knows—about children generally. [Citation.]” (Ibid.; see also Gallegos v. Colorado
(1962) 370 U.S. 49, 53 [“ ‘[a]ge 15 is a tender and difficult age for a boy . . . . He cannot
be judged by the more exacting standards of maturity. That which would leave a man
cold and unimpressed can overawe and overwhelm a lad in his early teens. This is the
period of great instability which the crisis of adolescence produces’ ”].)
Increasing awareness of the important differences between juveniles and adults in
a variety of contexts (see, e.g., Roper v. Simmons, supra, 543 U. S. at pp. 569-570 and
cases there cited), and, more specifically, the realization that children and adolescents are
much more vulnerable to psychologically coercive interrogations and in other dealings
with the police than resilient adults experienced with the criminal justice, is not limited to
the courts; it is now far more widely shared by police manuals than when Miranda was
decided.
Thus, for example, the most recent edition of the Reid manual on interrogations
notes that although the use of deception, including the use of “fictitious evidence which
22
implicates the subject,” has been upheld by the courts (see, e.g. Frazier v. Cupp, supra,
394 U.S. at p. 739; People v. Smith, supra, 40 Cal.4th at p. 505), “this technique should
be avoided when interrogating a youthful suspect with low social maturity” because such
suspects “may not have the fortitude or confidence to challenge such evidence and
depending on the nature of the crime, may become confused as to their own possible
involvement if the police tell them evidence clearly indicates they committed the crime.
Factors such as the adolescent’s level of social responsibility and general maturity should
be considered before fictitious evidence is introduced.” (Inbau et al., Criminal
Interrogation, supra, at p. 255.)
The developing consensus about the dangers of interrogation has resulted from the
growing number of studies showing that the risk interrogation will produce a false
confession is significantly greater for juveniles than for adults; indeed, juveniles usually
account for one-third of proven false confession cases. (See, e.g., Susceptibility of
Juveniles, supra, 62 Rutgers L.Rev. at p. 952; Police Interrogation of Juveniles, supra,
97 J. Crim. L. & Criminology 219, False Confessions, supra, 82 N.C.L.Rev. at p. 944;
Gross et al., Exonerations in the United States, 1989 through 2003, 95 J. Crim. L. &
Criminology 523, 545; Redlich & Kassin, Police Interrogation and False Confessions:
The Inherent Risk of Youth, in Children as Victims, Witnesses, and Offenders:
Psychological Science and the Law (2009) 275-276.
A 2007 study of 332 law enforcement officers showed that, despite police
acknowledgment of the fallibility of deception detection and differences in typical
behaviors of children and youth in comparison to adults, an average of 83.2 percent of
police claimed to use body language to detect deception, without discrimination of the
age of the subject. (Meyer & Reppucci, Police Practices and Perceptions Regarding
Juvenile Interrogation and Interrogative Suggestibility, 25 Behavioral Sciences & the
Law 757.) As the authors of the study point out, “[t]his is especially dangerous because
police are trained to view behaviors such as slouching and lack of eye contact as signals
of deception and indications that they should proceed with interrogations. If police
perceive these typical juvenile behaviors as deceptive, this perception may increase the
frequency with which they judge young suspects to be guilty, therefore increasing the
23
frequency with which they subject youth to coercive and deceptive interrogation to obtain
a confession.”12 (Id. at pp. 774-775.) The study concludes that “police acknowledge
some developmental age differences concerning comprehension abilities, but fail to apply
this knowledge to the interrogation context.” (Id. at p. 774.) One of the findings of the
study particularly pertinent to this case is that “a fair number of police (21.4%) endorsed
usage of verbally tricky, forced choice questions where either choice incriminates the
subject, without discrimination of the age of the suspect, indicating little knowledge or
application [and knowledge of factual findings] that children are likely to choose between
the forced-choice answers presented by the police even when none are correct.” (Ibid.)
Contrary to the trial court’s apparent view that Detective Buchignani did not
utilize this technique,13 her repetitive queries whether Elias touched A.T. “out of
curiosity” or because it was “exciting” were precisely the sort of forced-choice question
that can easily induce an adolescent such as Elias to falsely incriminate himself when
confronted with false evidence of his guilt.
In a case with some striking similarities to the one before us—not least the
apparent use of interrogation techniques drawing on the Reid methodology—a Kentucky
court emphasized the significance of the 13-year-old suspect’s age in evaluating the
effect on him of various aspects of the questioning. (Commonwealth v. Bell, supra, 365
S.W.3d at pp. 224-225.) Like Elias, T.C. was questioned at his middle school by two
police detectives who had school officials remove the boy from class and bring him to a
separate room for questioning about allegations that he had anal intercourse with his sixyear-old
cousin in the shower. (Id. at p. 219.) The detective told T.C. that “thirteen-yearold
boys ‘have a lot of hormones,’ and sometimes get ‘horny’ and ‘get a little bit
curious,’ ” then asked what had happened in the shower. (Ibid.) As T.C. denied
12 The similarity between the postures common to juveniles and those deemed by
many police manuals to be indicative of deceptiveness is powerfully illustrated by a
series of photographs set forth in chapter 9 of the most recent edition of the interrogation
manual, entitled “Behavior Symptom Analysis” (Inbau et al., Criminal Interrogation,
supra, at pp. 123-128, figures 9-8 through 9-13).
13 As indicated above, the court noted that the detective’s “questions weren’t split
where there would be two responses you’d have to use to the same single question.”
24
improper conduct, the detective insisted he already knew what happened but wanted T.C.
to be honest with him; said he had to find out whether it happened accidentally or
intentionally; suggested T.C. might have been curious or might have been “messing
around”; insisted he needed to know why T.C. did it; and told T.C. he had to be honest
and “[w]e can be done here.” (Id. at p. 220.)14 Finally, the detective said, “ ‘you did it
because you were horny, had a hard on, and you were curious. . . . Am I right?’ ” (Ibid.)
T.C. replied, “yes, sir.” (Ibid.)
Upholding the lower court’s finding that the confession was involuntary, the Bell
court noted the prosecution’s argument that the detectives did not deprive T.C. of food or
sleep and used a calm, conversational tone. But, the court explained: “These latter
statements may serve to assure an adult, or even a mature minor, that he should feel free
of coercion, that he is free to say nothing and even to leave the officers’ presence any
time he desires. However, we do not believe they provided that same assurance, under
these circumstances, to this thirteen-year-old boy.” (Commonwealth v. Bell, supra, 365
S.W.3d at p. 224.) “[A] school is where compliance with adult authority is required and
where such compliance is compelled almost exclusively by the force of authority. Like it
or not, that is the definition of coercion. . . . If he is sent to the principal’s office, he is
not allowed to leave until the principal says so. And if he is instructed to be alone in a
room with police detectives, as T.C. was, how can we expect him to believe some other
set of rules applies? Can we reasonably expect a thirteen-year-old child to perceive he
14 When T.C. denied anything had happened in the shower, the detective said, “ ‘I
know what happened in the shower. I just want you to be honest with me.’ ”
(Commonwealth v. Bell, supra, 365 S.W.3d at p. 219.) The detective told T.C. that the
cousin claimed “he was ‘bent over and [T.C.’s] penis went in [his cousin’s] butt.’ ”
When T.C. reiterated his denial, the officer said he knew something had happened and
could not leave until he knew whether it happened accidentally or intentionally. (Ibid.)
T.C. then said his cousin was playing in the shower and fell back onto T.C., and T.C.’s
penis went “around” his cousin’s butt but not into it. (Ibid.) The detective asked if T.C.
was “curious to see what it felt like” and, in response to T.C.’s denial, insisted that T.C.’s
penis “went in his butt” and asked T.C. why he did it, then offered possible scenarios:
“ ‘[Y]ou did it because you were either curious or you did it because you were messing
around, poking at him.’ ” (Id. at p. 220.) Questioning T.C. about why he did it, the
detective said, “ ‘the one thing I gotta break through here is why you did it. You gotta
tell me that honestly. You gotta be honest. We can be done here.’ ” (Ibid.)
25
has greater freedom while in school simply because he was read his Miranda rights?
When the detective said, ‘I really can’t leave here until I find out’ something, is it
reasonable to believe T.C. did not feel coerced into saying something, whether true or
not; is it reasonable that he believed he had the right to say nothing or to get up and leave
the detective there alone? We believe not. [¶] Although the thirty-two minute
interrogation may not seem excessive, the repetitive questioning amounted to coercion by
importunity. T.C., alone, was ordered by school officials into a room, facing adult
authority figures with considerable power, who also feigned superior knowledge (‘I know
what happened [and your cousin] has not lied to me about anything’), and who repeatedly
demanded answers that he, if he was to be an obedient child, would have to provide.
How could T.C. not perceive such a situation as subjectively coercive?” (Id. at p. 225,
italics added, fn. omitted.) “T.C. was an impressionable youth inclined to acquiesce to
coercive police tactics. . . . In sum, viewing the interrogation through the lens of this
thirteen-year-old student, under these circumstances, we are persuaded the district court
did not err in finding T.C.’s statements to Detective Johnson ‘were not the product of
[his] free choice’ when given.” (Ibid.)
At 13 years of age, Elias was a young adolescent, there is no indication in the
record he was particularly sophisticated, and he had no prior confrontations with the
police. Buchignani interrogated him in a small room at his school, with the school
principal and a second officer present, and another officer outside the door. There is
every reason to believe the aggressive, deceptive, and unduly suggestive tactics
Buchignani employed would have been particularly intimidating in these circumstances.
B.
As we have said, aside from Elias’s interrogation, the only evidence that Elias
touched A.T. in an improper manner was Aurora’s statement the child told her he did so
and the detective’s testimony that in the RCC interview A.T. said Elias “touched her”
and, in the detective’s opinion, pointed to the vaginal area on a doll. Aurora did not see
Elias touch A.T.; nor did Hector, who was playing the video game with Elias.15 During
15 Hector testified that he was sitting on the floor and Elias on the bed; Elias stated
in the interrogation that Hector was “right beside me.”
26
the 17 days between the occurrence of the alleged act and Aurora’s complaint to the
police, A.T. must have interacted with her brother, father, uncles and other members and
friends of the family frequently at the apartment, as well as residents of the apartment
house, yet there is no evidence anyone other than Aurora heard the things Aurora claimed
her daughter had been “telling everybody.” Although A.T. was interviewed, little
evidence derived from that interview was introduced. The sole evidence of the manner in
which Elias allegedly touched the child came from Elias’s interrogation, and no evidence
corroborated his incriminating statements.
The best form of corroboration is the suspect’s revelation of information only a
guilty suspect would know. (Inbau et al., Criminal Interrogation, supra, at pp. 354-356.)
Thus “[t]he admissions, ‘I shot and killed Mr. Johnson’ or ‘I forced Susie Adams to have
sex with me’ may be elicited from a juvenile (or adult) suspect. These admissions
become useful as evidence if they are corroborated by (1) information about the crime the
suspect provides which was purposefully withheld from the suspect, and/or, (2)
information not known by the police until after the confession which is subsequently
verified.” (Id. at p. 255.) Corroboration is “[t]he ultimate test of the trustworthiness of a
confession.” (Ibid.) A suspect saying “ ‘I did it’ ” does not provide assurance that the
admission is true; “internal indicia of reliability and independent evidence” are necessary.
(Decision to Confess Falsely, supra, 74 Denv. U. L.Rev. at pp. 990-991.)
As we will explain, post, at pages 29-30, Elias’s admissions did not even amount
to an “I did it.” Internal indicia of reliability were absent, as Elias said nothing during his
interrogation that only a guilty suspect would know. Rather, all of the differing
descriptions of where and how the alleged improper touching took place were first
offered by Detective Buchignani.
One of the ways police facilitate false confessions is by disclosing specific facts
regarding the crime during the interrogation process, inducing the suspect to adopt these
facts and thus accurately “confirm[] the preconceived story the police seek to have him
describe.” (Miranda, supra, 384 U.S. at p. 455; Nirider et al., Combating Contamination
in Confession Cases (2012) 79 U. Chi. L.Rev. 837, 847 (Combating Contamination).)
The use of this suggestive technique—referred to as “contamination” (see Combating
27
Contamination, at pp. 846-847); Garrett, Contaminated Confessions Revisited (2015) 101
U.Va. L.Rev. 395, has been found to be coercive and to have overcome the will of
subjects, particularly those who are young or otherwise vulnerable. (See, e.g., United
States v. Preston (9th Cir. 2014) 751 F.3d 1008, 1023-1024 (en banc); In re J.F. (D.C.
2010) 987 A.2d 1168; State v. Rettenberger (Utah 1999) 984 P.2d 1009, 1020; Passama
v. Nevada (Nev. 1987) 735 P.2d 321, 324.) This is why investigators are told not to
reveal to suspects all information they have about the crime: Revelation to a suspect of
known details about a crime is discouraged because it creates the possibility a confession
may simply reflect suggestions made by the investigator, “not the product of spontaneous
recall on the part of the suspect.” (Inbau et al., Criminal Interrogation, supra, at p. 359;
see Combating Contamination, at p. 847.)
Contamination also “prevents police from testing and corroborating the reliability
of the admissions and confessions they elicit.” (Combating Contamination, supra, 79 U.
Chicago L.Rev. at p. 848.) As one of the authors of Criminal Interrogation has said, “[I]t
is imperative that interrogators do not reveal details of the crime so that they can use the
disclosure of such information by the suspect as verification of the confession’s
authenticity. In each case there should be documented ‘hold back’ information about the
details of how the crime was committed; details from the crime scene; details about
specific activities perpetrated by the offender; etc. The goal is to match the suspect’s
confession against these details to establish the veracity of the statement.” (Combating
Contamination, at pp. 847-848, quoting Joseph P. Buckley, The Reid Technique of
Interviewing and Interrogation, in Tom Williamson ed., Investigative Interviewing:
Rights, Research, Regulation 190, 204-05 (Willan 2005).)
Here, because Buchignani suggested all of the scenarios involving improper
touching, she enhanced the likelihood that Elias’s statements resulted from his
suggestibility rather than recall of actual events. Further, because there was no
evidentiary basis for the suggestions, any contamination that occurred necessarily
resulted in Elias’s adoption of facts that were entirely speculative on Buchignani’s part.
And because Buchignani had no information about the alleged offense, she had no basis
for evaluating the veracity of Elias’s statements. As a result, not only are Elias’s
28
inculpatory admissions wholly uncorroborated, they leave open the real possibility that
Elias simply accepted a description of the events—that he briefly touched the bare skin of
A.T.’s vagina—that was deceptively suggested by Detective Buchignani.
C.
Use of the deceptive techniques employed by Detective Buchignani, which are
essentially those critically described in Miranda, “is a factor which weighs against a
finding of voluntariness [citations].” (People v. Hogan, supra, 31 Cal.3d at pp. 840-841.)
And, given the vulnerabilities we have discussed, the use of deceptive techniques is
significantly more indicative of involuntariness where, as here, the subject is a 13-yearold
adolescent who has never previously had any confrontation with the police.
The authors of the text expounding the Reid Technique candidly admit that
“[m]any of the interrogation techniques presented in this text involve duplicity and
pretense. To persuade a guilty suspect to offer an admission against self-interest, the
investigator may have to falsely exaggerate confidence in the suspect’s guilt, sympathize
with the suspect’s situation, and display feelings toward the suspect or his crime that are
far from genuine. The investigator may suggest a face-saving motive for the commission
of the crime, knowing it is not true. In some cases an investigator may falsely imply, or
outright state, that evidence exists that links the suspect to the crime.” (Inbau et al.,
Criminal Interrogation, supra, at p. 351.) But, as we have said, the text makes it
eminently clear that such deceptive techniques “should be avoided when interrogating a
youthful suspect with low social maturity” because such suspects “may not have the
fortitude or confidence to challenge such evidence” and “may become confused as to
their own possible involvement, if the police tell them evidence clearly indicates they
committed the crime.” (Id. at p. 352, italics added.)
Indeed, our review of the interrogation leaves considerable question what Elias
meant to be saying when he made the statements that incriminated him, or whether he
understood their significance. As we have described, Elias repeatedly stated that all he
did was help A.T. unzip her pants at her request. He “touched” her, yes—because it
would be impossible to unzip her pants without touching her: “I did touch her but I never
really touched her like go like that or do something to her. [¶] . . . [¶] I wasn’t touching
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her vagina.” When Buchignani insisted that Elias touched the skin of A.T.’s vagina, he
said he “didn’t like put my whole hand in there” and, later, that his “finger like slipped,
but I did touch it but I didn’t put it in there and just leave it”; when asked how long he
touched A.T., he said, “I only touched her for like around 3 or 4 seconds because I was in
the middle of a game.” These responses leave very unclear whether Elias understood
himself to be acknowledging that he “touched” A.T. in the way Buchignani meant rather
than that he “touched” her to unzip her pants in a few-seconds interruption of the video
game he was in the midst of playing with Hector. At one point, Elias having denied
finding the touching “exciting” and said “after that I thought it was nasty,” Buchignani
asked him, “[s]o, after you touched her bare vagina with your fingers you though[t] it was
nasty?” Elias responded, “Yeah, like when I was smaller, my friend one time showed me
her vagina and I thought it was disgusting.” The answer is ambiguous: Perhaps Elias
was referring to another time when he thought it was disgusting just like he did this time,
but perhaps he was simply responding to Buchignani’s questions about vaginas by
relating something that had happened in the past. If Elias did not understand that his
answers conveyed an admission that he touched A.T. improperly, it would make no sense
to view them as voluntary and a product of his free will.
The cases respondent relies upon to argue the interrogation tactics used here were
not inappropriate are distinguishable in critical ways. The only one of these cases
involving a juvenile is In re Joe R. (1980) 27 Cal.3d 496. The minor, nearly 18 years old,
denied participation in two robberies for the first 30 to 40 minutes of interrogation, then
confessed after the interrogating officer accused him of lying “loudly, emphatically, and
with terse language (e.g., ‘bullshit’)” and confronted him with incriminating evidence
that had been discovered in the closet of his bedroom. (Id. at pp. 502-503, 515) The
Supreme Court upheld the trial court’s determination that the confession was voluntary,
explaining that “ ‘[m]ere advice or exhortation by the police that it would be better for the
accused to tell the truth when unaccompanied by either a threat or a promise does not
render a subsequent confession involuntary’ ” and the trial court “had no duty to rule that
loud, aggressive accusations of lying amounted to coercive threats.” (Id. at p. 515,
quoting People v. Jimenez (1978) 21 Cal.3d 595, 611, overruled on other grounds in
30
People v. Cahill (1993) 5 Cal.4th 478, 484, 510.) The Supreme Court also noted that the
confession was not invalidated by “ ‘deception . . . of a type reasonably likely to procure
an untrue statement.’ ” (Ibid., quoting In re Walker (1974) 10 Cal.3d 764, 777.) Thus, In
re Joe R. involved a minor significantly older than Elias, the interrogator did not use false
evidence, false choice questions or other forms of deception, and the interrogation was
preceded by an investigation that independently provided substantial inculpatory and
corroborating evidence.
Illinois v. Perkins (1990) 496 U.S. 292, which respondent relies upon for the point
that police use of deception is not necessarily coercive, involved neither a juvenile nor an
interrogation: The defendant’s statements were made to an undercover agent posing as a
fellow jail inmate. The court held that the premise of Miranda was “that the danger of
coercion results from the interaction of custody and official interrogation” and “[t]he
essential ingredients of a ‘police-dominated atmosphere’ and compulsion are not present
when an incarcerated person speaks freely to someone [whom] he believes to be a fellow
inmate.” (Illinois, at pp. 296-297.)
Respondent’s other authorities state the proposition that misrepresentation by the
police does not necessarily invalidate a confession. (Amaya-Ruiz v. Stewart (9th Cir.
1997) 121 F.3d 486 [misrepresentation inflated extent of witness evidence], overruled on
other grounds in United States v. Preston, supra, 751 F.3d at pp. 1019-1020; Pollard v.
Galaza (9th Cir. 2002) 290 F.3d 1030, 1034 [no misrepresentation]; People v. Maury
(2003) 30 Cal.4th 342, 411 [defendant recognized ruse employed by Department of
Corrections psychologist and refused to succumb to deception]; People v. Jones (1998)
17 Cal.4th 279, 299 [detective implied he knew more than he did or could prove more
than he could].) As none of these cases involve juveniles or are otherwise factually
similar to the present case, none are helpful in evaluating the effect of the use of false
evidence here.
“[R]esearch on juveniles’ ability to exercise Miranda rights and their adjudicative
competence consistently reports that, as a group, adolescents understand legal
proceedings and make decisions less well than do adults. Youths fifteen years of age and
younger exhibited the clearest and greatest disability.” (Police Interrogation of
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Juveniles, supra, 97 J. Crim. L. & Criminology at p. 233; Grisso, Juveniles’ Waivers of
Rights; Legal and Psychological Competence (1980); Grisso, Juveniles’ Capacities to
Waive Miranda Rights: An Empirical Analysis (1980) 68 Cal. L.Rev. 1134.) “Social
expectations of obedience to authority and children’s lower social status make them more
vulnerable than adults during interrogation. Less powerful people, such as juveniles or
racial minorities, often speak indirectly with authority figures to avoid provoking
conflict. Juveniles may acquiesce more readily to police suggestions during
questioning.” (Police Interrogation of Juveniles, at p. 230, fns. omitted; Ferguson &
Douglas, A Study of Juvenile Waiver (1970) 7 San Diego L.Rev. 39; Grisso & Pomiciter,
Interrogation of Juveniles: An Empirical Study of Procedures, Safeguards, and Rights
Waiver (1977) 1 Law & Hum. Behav. 321; Drizin & Colgan, Tales From the Juvenile
Confession Front: A Guide to How Standard Police Interrogation Tactics Can Produce
Coerced and False Confessions from Juvenile Suspects, in Interrogations, Confessions,
and Entrapment (Lassiter ed., 2004) 153-155.) Given their vulnerabilities to
interrogation, the inordinate number of false confessions given by juveniles should come
as no surprise.
The false evidence and other deceptive techniques employed in this case to induce
a 13-year-old adolescent to incriminate himself create substantial doubt about both the
voluntariness of Elias’s inculpatory statements and the truth of those statements—even
though Elias need not show they were not trustworthy. (Rogers v. Richmond, supra, 365
U.S. at pp. 543-544). These doubts must be resolved adversely to the prosecution due to
both the absence of any evidence corroborating the truth of Elias’s incriminating
statements, which we have discussed, and the presence of evidence suggesting they may
be false. As we have explained, the record provides significant reason to think Aurora’s
claims may have been motivated by a desire to retaliate against Elias’s father for
complaining to the landlord and the police about her family.
Additionally, although we do not assign it great weight, we are troubled by the fact
that, almost immediately after the trial court’s jurisdictional ruling against him, Elias told
a probation officer that he did not commit the adjudicated offense but “only tried to help
the young girl.” As noted in the Reid text, “[a]s soon as the threat of the interrogation has
32
been removed, it would be expected that the innocent suspect would denounce the
confession and protest innocence to anyone willing to listen.” (Inbau et al., Criminal
Interrogation, supra, at p. 357.)
In finding Elias’s statements voluntary and admissible, the trial court stated that
Detective Buchignani’s manner was “gentle” and “calm,” her questions were “not
convoluted,” her language was age appropriate, and “the questions weren’t split where
there would be two responses you’d have to use the same single question.” As we have
explained, the court’s last point, that Buchignani did not employ a “false choice strategy,”
was clearly mistaken. But this inattention, and the superficiality of all of the other factors
the trial court also relied upon, demonstrate the need for much more rigorous judicial
scrutiny of voluntariness of statements made under the “inherently compelling pressures”
of the forms of custodial interrogation now in common use by law enforcement agencies.
Many who study the subject closely think post-Miranda police practices “have gutted
Miranda’s safeguards” so that today, “Miranda’s protections are more mythic than real.”
(See, e.g., Mourning Miranda, supra, 96 Cal. L.Rev. at p. 1599; Kamisar, On the Fortieth
Anniversary of the Miranda Case: Why We Needed It, How We Got It – And What
Happened to It (2007) 5 Ohio St. J. of Crim. L. 163; White, False Confessions and the
Constitution: Safeguards Against Untrustworthy Confessions (1997) 32 Harv. C.R.-C.L.
L.Rev. 105.) Increasingly, the survival of those protections, and the vindication of the
Miranda court’s concern about the increasing number of false confessions, which is of
particular concern with adolescent suspects, may depend upon the willingness of trial
judges to engage in vigorous individual assessment of the voluntariness of a statement
despite the suspect’s Miranda waiver. As Justice Souter has remarked, “giving the
warnings and getting a waiver has generally produced a virtual ticket of admissibility;
maintaining that a statement is involuntary even though given after warnings and
voluntary waiver of rights requires unusual stamina, and litigation over voluntariness
tends to end with the finding of a valid waiver.” (Missouri v. Seibert (2004) 542 U.S.
600, 608-609 (plur. opn.).) The fact of a Miranda waiver should not be allowed to serve
as an obstacle to the vital assessment of voluntariness. (Garcia, Is Miranda Dead, Was it
Overruled or Is It Irrelevant? (1998) 10 St. Thomas L.Rev. 461, 496-502.)
33
In the present case, considering the totality of the circumstances and the
vulnerabilities and susceptibility of adolescents subjected to custodial interrogation that
have been emphasized by the Supreme Court (J.D.B., supra, ___U.S. at p. ___ [131 S.Ct.
at p. 2403], and cases there cited), we have little difficulty concluding that the inculpatory
statements made by Elias to Detective Buchignani cannot be deemed a product of his free
will.
D.
Although it may not bear directly on the voluntariness of Elias’s statements, one of
the most remarkable features of the present case is that before interrogating Elias,
Detective Buchignani had neither interviewed him or anyone else about this case nor
investigated or questioned the truth of Aurora’s statement to Officer Chavez that she
“believed” Elias “had assaulted her daughter” on October 6th. This point is significant
because proceeding in this manner violated a basic tenet of the Reid Technique meant to
reduce the likelihood of inducing false confessions.
So far as the record shows, the only police conduct prior to the interrogation that
could be described as investigatory was the short statement Officer Chavez took from
Aurora, and the apparently uninformative interview of A.T. Aurora did not tell Chavez
she saw Elias touch A.T., and she said her 8-year-old son Hector had told her he “didn’t
witness anything.” The trained expert who interviewed A.T. never testified and the tape
of the interview was never introduced in evidence, as it surely would have been if A.T.’s
statements or behavior had corroborated Aurora’s statements to the police. There was
only Buchignani’s testimony that A.T. gave “enough information to believe she had been
touched” by, as it appeared to Buchignani, pointing to the vaginal area on a doll.
Buchignani confirmed at the jurisdictional hearing that she had never spoken with Elias
prior to interrogating him and had never previously spoken with anyone else in Elias’s or
A.T.’s family, the landlord, any tenant of the apartment house, any student or teacher or
other authority at Elias’s school, or anyone else who might shed light on the case. As
Buchignani testified, her agency “didn’t make contact with anyone other than [Aurora].”
As we have said, it is accepted by virtually all respected authorities on custodial
interrogation that aggressive interrogation designed to overwhelm the subject with the
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interrogator’s indomitable will to obtain the truth is a technique that should only be used
after an investigation has indicated that “ ‘the guilt of the subject appears highly
probable.’ ” (Miranda, supra, 384 U.S. at p. 451, fn. omitted.) The significance of this
principle arises from the distinctive characteristics of an interrogation that differentiate it
from an ordinary investigative interview.
As underscored in the opening pages of the current edition of the text expounding
the Reid Technique, an “interview” is “nonaccusatory,” its purpose “is to gather
information,” “it may be conducted early in an investigation,” “it may be conducted in a
variety of environments,” the conversation should be “free flowing and relatively
unstructured,” and “the investigator should take written notes.” (Inbau et al., Criminal
Interrogation, supra, at pp. 3-4.) On the other hand, an “interrogation” is “accusatory”
and “involves active persuasion,” it “is conducted in a controlled environment” and “only
when the investigator is reasonably certain of the suspect’s guilt,” and the investigator
“should not take any notes until after the suspect has told the truth and is fully committed
to that position.” (Id. at pp. 5-6, italics added.)
Proponents of the Reid Technique, and virtually all interrogation manuals, counsel
that interrogation should almost never be undertaken without the benefit of a previous
interview: “Absent a life-saving circumstance the investigator should conduct a nonaccusatory
interview before engaging in any interrogation. During the interview the
investigator can establish rapport with the suspect, assess their credibility, develop
investigative information and establish a behavioral baseline. Also, during the interview
the suspect is more likely to reveal information that can be used to develop an
interrogation strategy.”16
While Aurora’s report of what her three-year-old daughter told her undoubtedly
warranted investigation, including an interview of Elias, Detective Buchignani moved too
quickly to interrogate him in a manner unjustified even by the standards of the Reid
Technique itself. “The message of interrogation in the pre-admission phase is that the
16 The Reid Technique of Interviewing and Interrogation-Position Paper, available
at (as of June 1, 2015); see Inbau et
al., Criminal Interrogation, supra, at pp. 6-7.)
35
evidence already in hand leads to the conclusion that the suspect’s factual guilt has been
established beyond any doubt. Although sometimes it is possible to be entirely truthful
when making this claim, it is permissible for the claim to be a complete lie. By forcefully
presenting a claim that he knows is entirely fabricated to someone he guesses is guilty,
the investigator hopes to create the impression of an airtight case and convince the
suspect that resistance is futile. When real evidence is lacking the investigator knows full
well that it is only by getting the suspect to give a full and detailed confession that he will
be able to find the evidence that will prove correct his speculative, intuitive, and risky
guess.” (The Decision to Confess Falsely, supra, 74 Denver Univ. L.Rev. at p. 1008, fns.
omitted.)
Against the advice of all police manuals and other authorities, Detective
Buchignani used custodial interrogation as not just the primary but the only means of
evaluating Elias’s truthfulness. As noted by a prominent student of custodial
interrogation, innocent people falsely accused often believe in “a just world and in the
transparency of their own blameless status . . . . [T]hose who stand falsely accused also
have faith that their innocence will become self-evident to others. As a result they
cooperate with police, often not realizing that they are suspects, not witnesses; they waive
their rights to silence, counsel, and a lineup; they agree to take lie-detector tests; they
vehemently protest their innocence, unwittingly triggering aggressive interrogation
behavior; and they succumb to pressures to confess when isolated, trapped by false
evidence, and offered hope via minimization and the leniency it implies. Yet without
independent exculpatory evidence, their innocence is not easily detected by others.” (On
the Psychology of Confessions, supra, 60 Am. Psychologist at p. 224, italics added.) The
“lesson of history,” our Supreme Court has observed, is “that a system of criminal law
enforcement which comes to depend on the ‘confession’ will, in the long run, be less
reliable and more subject to abuses than a system which depends on extrinsic evidence
independently secured through skillful investigation.” (Escobedo v. Illinois (1964) 378
U.S. 478, 489-490, fns. omitted.)
The voluntariness of inculpatory statements made during an interrogation
conducted on the basis of no more than the interrogator’s “speculative, intuitive, and
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risky guess” that the subject is guilty warrants particularly careful judicial scrutiny. A
confession resulting from an interrogation undertaken in the absence of evidence strongly
indicative of guilt is not necessarily inadmissible, but it is a circumstance to be carefully
considered in evaluating the voluntariness of the resulting confession. And, of course,
strict scrutiny of uncorroborated confessions elicited during such interrogations may also
have the salutary effect of discouraging an unprofessional and hazardous police practice.

Outcome: We conclude that the prosecution failed to prove by a preponderance of the
evidence that Elias’s inculpatory statements were voluntary, and the trial court therefore
erred in receiving the statements in evidence. Because the jurisdictional ruling was based
almost entirely on those statements, the error was prejudicial. Accordingly, the judgment
must be and is reversed.

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Defendant's Experts:

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