When is a Statement Involuntary? Janusiak v. Cooper, Seventh Circuit Court of Appeals, Filed August 22, 2019
When is a statement involuntary?
In many cases, the “confession” is a prosecutor’s best evidence – which is why police work hard to get a suspect to confess. They work so hard at it, in fact, that many people confess to things that they didn’t do. Things that DNA evidence later proves they didn’t do.
Because of this, there are safeguards that are intended to prevent police coercion during interrogations, including the Fifth Amendment right to counsel (your Miranda rights) and the Fourteenth Amendment Due Process Clause – statements must be voluntary and not given under duress.
In Janusiak v. Cooper, the Seventh Circuit found that a pregnant mother’s statements given during a seven-hour interrogation (where the police arguably threatened to take her children if she did not cooperate) was not coerced.
Why? When would the courts find that a statement is involuntary because of coercion?
When is a Statement Involuntary?
Most people are familiar with the requirements that police read your “Miranda rights” to you before any questioning. If you are in custody and you make statements in response to questioning, those statements may be excluded from your trial unless you were informed of your Miranda rights.
But there is a second question that courts must ask before admitting a defendant’s statement into evidence – was the statement involuntary? Was it coerced by either physical or psychological pressure from police?
What Do Courts Consider When Determining Voluntariness?
There are many case-specific factors that could result in suppression of an involuntary statement (the same factors apply to determine whether consent to search was given voluntarily). The length of questioning, the suspect’s age, and the suspect’s education level are a few that courts often cite:
Some relevant factors include the length and nature of the interrogation, the age and education of the suspect, and the psychological impact of the questioning on the defendant. Id. The defendant has the burden of establishing that statements were coerced. See Colorado v. Connelly, 479 U.S. 157, 164–65 (1986).
Anything that would “overbear the will” of the suspect is coercion. If the police jack you up by your throat in the interview room, that would be an easy case for suppression.
But what if they keep you in the interview room for hours, even days, while saying you cannot leave until you confess? What if they tell you that they understand why you did the thing they think you did? That they might have done the same? And, by the way, you can’t leave here or see your family until you confess?
What if they tell you that you cannot see your children or that DSS will take your children away from you unless you tell them what they want to hear?
In Janusiak, the defendant:
- Was interrogated for seven hours;
- Was eight months pregnant;
- Had four children at home; and
- The police and a social worker implied that she would not see her children again unless she cooperated.
Isn’t that enough to say a statement is involuntary? Telling a pregnant mother that she will not see her children unless she cooperates?
Is it Coercive for Police to Talk About Your Children During Questioning?
The Court’s opinion essentially is that it’s okay for police to imply that they will take your children, as long as they are not lying about it, but it’s not okay for police to come out and say that they will take your children unless you confess…
In Janusiak, the police did not say “we will take your children unless you confess.”
Janusiak: I don’t want to go to jail. Becker: We want to find out. Detective [Andrew] Stelter: I want to send you home with your kids, that’s what I want. Becker: But you’re not giving us anything to work with here… Becker: But we’re talking about jail, no kids… Becker: No family.
They are implying that she will lose her children if she does not cooperate. Therefore, she kept talking. For seven hours.
But they did not come out and say it – what they said was, if you go to jail, you will lose your children. The Court finds that is not coercive at all. They also found that, despite her pregnancy, the trauma of the incident, and her four children at home, she was not unduly susceptible to coercion because she had prior involvement with police:
The questioners spoke the truth when they said that if Janusiak had harmed Payten, then she might lose custody of her children, and that if she did no harm, she could remain with them. They did not threaten that she would lose her children unless she confessed. Janusiak, 367 Wis. 2d 349, ¶¶ 22–25. Officers may discuss the true and serious consequences of arrest or incarceration.
When Does Talking About Your Children Make a Statement Involuntary?
The Court says that just talking about your children is not coercive – “police are not forbidden from talking about a suspect’s children.” However, it is coercive when:
- Police threaten to take “custody of a young child unless the suspect provides satisfactory statements to the police;”
- Police threaten “the child’s support from the state” or “condition future interactions on cooperation;”
- Police threaten to take action that they have no legal authority to take; or
- Police lie about a child’s custody.
So, when is a statement involuntary? When do police cross the line when threatening a mother’s custody of her children?
In Lynumn v. Illinois, the US Supreme Court found that a statement was involuntary where police threatened to cut off financial aid for her infant children:
During the questioning they threatened that “state financial aid for her infant children would be cut off, and her children taken from her, if she did not ‘cooperate.’” Id. at 534. Lynumn “had no previous experience with the criminal law, and had no reason not to believe that the police had ample power to carry out their threats.” Id. The Supreme Court held that “a confession made under such circumstances must be deemed not voluntary, but coerced.” Id.
In Janusiak, in contrast, the police said that if she went to jail, she would not see her children. Even with the added threat posed by the presence of a DSS agent, they were not threatening to do something they had no legal authority to do, they were not lying, and they were not saying to her, “confess or you will not see your children.”
In Haynes v. Washington, the US Supreme Court suppressed a confession where police expressly threatened to hold him in custody and not allow him to contact his family unless he confessed:
Officers arrested Haynes, took him to the police station, and refused to allow him to contact a lawyer or his wife despite “several specific requests” 14 No. 19‐1198 to do so. Id. at 507. Haynes was told, however, that he might be allowed to contact a lawyer and his wife if he confessed…
The Supreme Court suppressed the confession because the police obtained it “with the express threat of continued incommunicado detention” if Haynes continued to resist and “the promise of communication with and access to family” if he relented. Id. at 514. (emphasis added)
In U.S. v. Ivy, the Sixth Circuit held that consent to search is invalid when it is coerced. When police conduct a warrantless search of a home without consent and unless an exception to the warrant requirement applies, any evidence found is suppressed at trial:
After both refused, the police handcuffed the girlfriend by her leg to a table. The police also took and held the couple’s baby while telling Ivy that he could either consent to the search or the police would arrest everyone in the house (including his girlfriend) and would take the baby into protective custody. See Ivy, 165 F.3d at 400–03. Ivy eventually allowed the police to search the home after they had threatened him and his girlfriend for an hour and a half. The search turned up some cocaine. The Sixth Circuit found that Ivy’s consent to search was involuntary based on the totality of the circumstances. Id. at 404.
When is a statement involuntary? It is rare for the courts to find that a statement is involuntary, but it can and does happen. For example, if police make express threats (to take your children, to arrest your mom), that they do not have the legal authority to carry out unless you “cooperate” or confess, the courts will most likely find that a statement was coerced.
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