State v. Abdulle (Dissent)

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State v. Abdulle (Yussuf Hussein) No. 84660-0 Stephens, J. (dissenting) Over 40 years ago, this court weighed the interests at stake in admitting confessions into evidence and concluded that something more than a swearing contest is required to prove a defendant validly waived Miranda1 rights before confessing. State v. Davis, 73 Wn.2d 271, 287 88, 438 P.2d 185 (1968). Today, the majority thinks differently. I dissent because the concerns we expressed in Davis have only intensified. Substantial research confirms there is a very real risk of involuntary confessions by suspects in custody. See, e.g., Saul M. Kassin et al., Police-Induced Confessions: Risk Factors and Recommendations, 34 Law & Hum. Behav. 3 (2010) (finding that interrogation techniques produce high rates of involuntary confessions and advocating for the recording of all custodial interrogations); Brandon L. Garrett, The Substance of False Confessions, 62 Stan. L. Rev. 1051, 1052 53 (2010) (finding that 42 of the 252 inmates exonerated by the innocence project had falsely confessed to their crime). In light of valid concerns about the reliability of custodial confessions, this court should maintain its 1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). State v. Abdulle (Yussuf Hussein), 84660-0 (Stephens, J. Dissent) safeguards, not abandon them. The majority seems to suggest that our decision in Davis was based on little more than blind obeisance to then-existing United States Supreme Court precedent. Thus, the majority maintains, we rested our holding on the heavy burden mandated by the Supreme Court in Miranda, majority at 7, but later followed Lego v. Twomey, 404 U.S. 477, 92 S. Ct. 619, 30 L. Ed. 2d 618 (1972), in concluding this burden is met when voluntariness is established by a preponderance of the evidence. Majority at 9-10 (citing State v. Braun, 82 Wn.2d 157, 162, 509 P.2d 742 (1973)). In fact, there was more to our decision in Davis. This court held that Washington requires some firmer guaranty that constitutional rights have been observed . . . than can be provided by a mere swearing contest between the accused and one interrogating police officer. Davis, 73 Wn.2d. at 287 88. Our reasoning was based on the concern for the dual purposes of (1) protecting the individual from the potentiality of compulsion or coercion inherent in in-custody interrogation, and (2) protecting the individual from deceptive practices of interrogation. State v. Hensler, 109 Wn.2d 357, 362, 745 P.2d 34 (1987) (citing Heinemann v. Whitman County, 105 Wn.2d 796, 806, 718 P.2d 789 (1986)). Subsequent to Davis, we reiterated in State v. Erho, 77 Wn.2d 553, 557 59, 463 P.2d 779 (1970), that judicial confidence in the voluntariness of a custodial confession rests on requiring corroborating testimony of other officers present at the scene. The concerns we identified in Davis and Erho have not abated. -2- False State v. Abdulle (Yussuf Hussein), 84660-0 (Stephens, J. Dissent) confessions are second only to faulty eyewitness identifications in producing invalid convictions, accounting for 14 to 25 percent of all exonerations. Jon B. Gould & Richard A. Leo, One Hundred Years Later: Wrongful Convictions After a Century of Research, 100 J. Crim. L. & Criminology 825, 844 (2010). Increasingly, research has focused on the relationship between police interrogation methods and unreliable confessions. Garrett, supra, at 1052 53 (noting increased awareness among scholars, courts, legislators, and law enforcement that innocent people falsely confess due to psychological pressure during interrogations). While the concern over false confessions goes well beyond the question of whether a suspect validly waived Miranda rights, it highlights the importance of judicial safeguards to closely examine the voluntariness of custodial confessions. After all, [c]onfessions are among the most powerful forms of evidence introduced in a court of law. Richard A. Leo et al., Bringing Reliability Back In: False Confessions and Legal Safeguards in the Twenty-First Century, 2006 Wis. L. Rev. 479, 485. Moreover, it remains true that when the voluntariness of a confession is tested by only a swearing contest, almost invariably the police officer [will be] held by the trial court to be more credible than the accused. Davis, 73 Wn.2d at 286. The problem is compounded by the fact that the officer testifying is the very person who allegedly violated the accused s constitutional rights. Id. To ensure confidence in custodial confessions, something more than a swearing contest must be required to prove that defendants voluntarily waived their Miranda rights. That something more is corroborating testimony or evidence, which this court -3- State v. Abdulle (Yussuf Hussein), 84660-0 (Stephens, J. Dissent) recognized is generally within the State s ability to provide. Davis, 73 Wn.2d at 286 87; Erho, 77 Wn.2d at 558 59. Adhering to our precedent places no undue burden on the State. As we observed in Davis, in contrast to the accused, police have numerous methods and techniques of establishing corroborating testimony and independent supporting evidence. 73 Wn.2d at 287; see also State v. Haack, 88 Wn. App. 423, 433 35, 958 P.2d 1001 (1997) (noting the burden is to present corroborating evidence when available). Moreover, it is the State s burden to establish the defendant effected a knowing, intelligent, and voluntary waiver of the right to remain silent.2 The rule we adopted over 40 years ago in Davis is still sound. Confessions derived from police interrogation present special concerns, so it is wise to require something more than a swearing contest to prove their voluntariness. Adhering to our precedent, I would affirm the Court of Appeals and hold that absent corroborating evidence or proof that such evidence is unavailable, Abdulle s custodial confession was inadmissible. 2 Because the State bears the burden to present corroborating evidence or explain its absence, I agree with the Court of Appeals that Abdulle did not waive his right to raise the Davis issue by failing to argue it below. State v. Abdulle, 155 Wn. App 1046, 2010 WL 1756792, at *3. The majority does not state any quarrel with this conclusion. -4- State v. Abdulle (Yussuf Hussein), 84660-0 (Stephens, J. Dissent) AUTHOR: Justice Debra L. Stephens WE CONCUR: Justice Charles W. Johnson Justice Tom Chambers Justice Mary E. Fairhurst -5-

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