[Attorney Name], SBN [ ]

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Attorney for Defendant











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PLEASE TAKE NOTICE that on [DATE] at [TIME] or as soon thereafter as the matter may be heard, and in the above-designated department, [NAME OF DEFENDANT] (“Defendant”) will move this court for an order to exclude Defendant’s statements as involuntary.

Dated: [DATE]


[Attorney Name],

Attorney for Defendant



  1. Introduction

Defendant is charged with:

  • Count 1: [INSERT CHARGES]




  1. In re Elias V. (2015) 237 Cal.App.4th 568 finds the Reid Method of interrogation coercive when applied to an immature individual.

In Elias V. the First District Court of Appeal address the claim of a minor that 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 v. Arizona (1966) 384 U.S. 436. The court agreed and reversed.

The court reasoned that

“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 [188 Cal. Rptr. 77, 655 P.2d 279]People v. Sanchez (1969) 70 Cal.2d 562, 572 [75 Cal. Rptr. 642, 451 P.2d 74], cert. dism., Sanchez v. California (1969) 394 U.S. 1025 [23 L. Ed. 2d 743, 89 S. Ct. 1646].) A minor can effectively waive his constitutional rights (People v. Lara (1967) 67 Cal.2d 365, 390–391 [62 Cal. Rptr. 586, 432 P.2d 202], cert. den. Lara v. California (1968) 392 U.S. 945 [20 L. Ed. 2d 1407, 88 S. Ct. 2303] … [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 [240 Cal. Rptr. 360].) (Id. at p. 576.)

The prosecution is required to show voluntariness of a confession by a preponderance of the evidence. (Lego v. Twomey (1972) 404 U.S. 477, 489.) The determination depends on all of the surrounding circumstances, both the characteristics of the accused and the details of the interrogation. (Schneckloth v. Bustamante (1973) 412 U.S. 218, 226.) The trustworthiness of the confession is not a consideration. (Rogers v. Richmond (1961) 365 U.S. 534, 543-544.) A finding of coercive police conduct is necessary, but the exertion of any improper influence is sufficient. (Colorado v. Connelly (1986) 479 U.S. 157; Hutto v. Ross (1976) 429 U.S. 28, 30.)

The techniques employed in In re Elias V., and in the instant case, were condemned by the Supreme Court in Miranda.

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 [*578]

response to a custodial interrogation. (Kassin & Gudjonsson, The Psychology of

Confessions: A Review of the Literature and Issues (Nov. 2004) 5 Psychol. Sci. Pub. Int. 33, 44.) 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. 588–591), 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).) (Id. at pp. 577-578.)

Both Elias V. and Miranda cite John E. Reid and Associates, and their basic course on “The Reid Technique”. Scientists who study interrogation techniques and their effects describe 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 alibis 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 & Hum. Behav. 3, 7 (Police-Induced Confessions). 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 … .” (Police-Induced Confessions, at p. 6.) (Id. at pp. 579-580.)

Investigators are taught to conduct the interrogation in privacy, and not at home or where the suspect would have support. They are to express confidence in guilty, and to minimize the moral seriousness of the offense. They seek to create in the suspect a psychological state where the defendant’s story is nothing more than an elaboration of which the police already know, guilt. Patience, perseverance, kindness and stratagems are employed. The interrogation is steady and without relent. The officer dominates, and insinuates guilt with his questions. He is aggressive and persistent.

Maximization/minimization is employed. The officer is rock solid in his belief in guilt, and provides moral justification and face saving excuse for the conduct. This is an offer of leniency by implication. False evidence may be cited. The lie detector ploy may be employed. Questions may take the form of a false choice, encouraging the suspect to select one of two options. (See Elias V., supra, at pp. 581-588.)

In recent years both the courts (See Roper v. Simmons, supra, 543 U.S. at 569-570) and the Reid Institute have found that the differences between adults and the immature must be recognized.

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 implicates the subject” (Inbau et al., Criminal Interrogation, supra, at p. 255), has been upheld by the courts (see, e.g., Frazier v. Cupp, supra, 394 U.S. at p. 739People 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.) (In re Elias V., supra, at p. 588.)

  1. The initial interrogation lasted nearly 90 minutes, and involved the use of many of the Reid Method techniques.

This matter, the initial interrogation took place at the school. After wait a substantial period of time, Mr. Roe was alone with the officer. Mr. Roe had turned 18 years old the day before, and, as indicated in the medical report, was very immature. The officer allowed Mr. Roe to tell his version of the events, and then began to employ The Reid Method. He offered false evidence in reference to surveillance Camera, and immediately to the possibility of DNA evidence as “even soap can’t remove DNA.” (RT 21-22, 22, 23.)

She then began to minimize Mr. Roe conduct, telling him we all make mistakes, and suggesting that it was a misunderstanding. (RT 25.) She invoked kindness, stating that he was trying to help Mr. Roe (RT 26), and that cameras don’t lie. (RT 27.) She repeated the DNA threat, in a touching only situation were DNA was unlikely. (RT 29.) She told him he was scared and that was the reason he was not telling the truth. (RT 30.) She repeated the references to surveillance cameras and DNA a few pages later. (RT 37, 38.) She told him it was a mistake, an illness and the he would get help. (RT 47.) She told him that he was scared and embarrassed, but needed to fess up. (RT 48.) She continued the minimization telling him that some can’t control the urges, and the truth would be a lift off his shoulders. (RT 49, 50.) She told him mental health was available, and that if he admitted a problem, then there would be help. (RT 52.) She saw him in anguish, and that he was scared. (RT 53-54.) He told him he needed to be honest, had he finally responded “I know I’m fucked up in the head.” (RT 55.) It was only at this point that Mr. Roe admitted he had touched the child, and that there was child porn on his lap top. It was then that he was formally arrested and transported to the Santa Clara Police Department.

That same evening, he was interrogated by a Sunnyvale Detective. This interrogation last nearly two hours. The interrogation, a continuation of the prior interrogation, secured details of the touching, his collection of child pornography, and his use the internet to avoid causing harm to children. While the Sunnyvale detective did read Mr. Roe his rights under Miranda, it is clear that this second interrogation also employed Reid Method techniques. Prior to his interrogation, Mr. Roe had admitted that he touched the outside of the vagina lightly. In the second interrogation, the officer asked repeated questions, and employed other techniques in an effort to get Mr. Roe to state that he had penetrated the child’s vagina.

He began by representing that he was trying to help Mr. Roe by clarifying that taking advantage of the child did not mean violence. (2 RT 8-9), and assuring Mr. Roe that he did not belief that he was a violent person. Mr. Roe continued to describe the contact as “Just very light, minor touching.” (2 RT 9.) The Officer then asked how many fingers were used, and Mr. Roe against stated “No penetration. Nothing like that.” (2 RT 10.) He again described the act as very light touching on the lips of the vagina. (2 RT 11.) The detective then asked if the finger went between the lips, and Mr. Roe described just barely. (2 RT 11.) He then asked Mr. Roe to described it more, as “I don’t want (my report) to read that you put your entire finger inside her. (2 RT 12.) Mr. Roe described the finger as going along the vagina very lightly. (2 RT 12.) He then asked Mr. Roe to show him how far the finger when in, and Mr. Roe again responded “Just rubbing against it.” (2 RT 13.) When asked to explain, He said “Nothing like actually inside.” (2 RT 13.) Asked if he felt wetness, he responded “No.” (2 RT 13.)

The detective then went on to other areas, and in pressing Mr. Roe about force, he told him that he didn’t think he was a bad person, but that he wanted to hear in his own words. (2 RT 17.) He repeatedly told Mr. Roe he was trying to give him the opportunity to tell him everything before he spoke with others. (2 RT 27.) He told him he knew there were other incidents. (2 RT 28.)

Later in the interrogation he again came back to penetration. (2 RT 51.) Mr. Roe again stated that he just rubbed it a little. (2 RT 51.) When the Detective stated “That’s between her labia,” he answered “Yeah.” (2 RT 51-52.) The detective stated “And you’re saying at no time you actually put her finger – your finger partway inside her vagina?” (2 RT 52.) He responded “No Penetration,” (2 RT 52) and when the detective persisted, he stated

There was no penetration from me. I, at most, just up there back and forth. Nothing inwards. Finger was never in. It was just up against — yeah. (2 RT 52.)

After this answer, the following exchange took place.

J. ROE: I mean maybe to the lips it went in like this a little bit but not into the whole — nothing.

DETECTIVE: But between — between the lips?

J. ROE: Yes.

DETECTIVE: How — how far in do you think?

J. ROE: (0:44:06.4) I could definitely still see about half my finger. I’d almost — I didn’t —

DETECTIVE: Hold your finger out. I can’t — when you say half of your finger —

J. ROE: So I’m going like this —

DETECTIVE: — I’m going to picture this is half your finger.

J. ROE: Oh, no. I’m — I’m talking about half my finger this way so at most about that far.

DETECTIVE: Oh, lengthwise?

J. ROE: Yeah. Lengthwise.

DETECTIVE: (0:44:23.2) I appreciate — so you’re saying — okay.

J. ROE: It wasn’t too deep. Nothing too rough or anything.


J. ROE: Just gentle. (2 RT 52-53.)

After this exchange the detective left the subject matter and did not raise the issue again with Mr. Roe.

  1. Suggestive questioning was employed by the officers in the questioning of the Child.

The eight year old child was interview by law enforcement both on Sept. 15 and Sept. 16. The child denied that penetration occurred, but later, being led by the detective, agreed that it did, in an ambiguous answer. After informing the officer twice that he had touched her private part, the officer asked for details, and she responded “He like – he put it on my private part.” (RT 9.) On repeated questioning she state “It’s like sort of in but not in but most of it is out.” When asked if he put the finger inside, she responded “Like the tip is in but then most of it is not.” (RT, Sept 15, pg. 10.)

On September 16, she was interview at the CIC center. She first stated that she was touched by Mr. Roe with his finger. (RT Sept. l6, pg.6.) A couple of pages later the following exchange occurs:

INTERVIEWER: (0:07:14.6) Okay. When you said he used your (sic) finger and he touched your private part, was that inside your private part or outside?

KYLIE: Yeah. It was in. Only his nail like a little bit in but like most of his hand was out. (RT Sept. l6, pg. 8.)

Cleary the answer as to “inside” was suggested by the interviewer.

Later the interview asked again about the touch, and asked for a demonstration. According the officer the finger went between the lips up to the bed of the fingernail.

The next day the child was given a SART examination. Dr. John Stirling in his report states that the child stated that he touched her private area with his finger and denied that the finger when inside the vagina or to the rectal area. She also denied any pain, bleeding or other discomfort during or after the touching. An examination was made of the anogenital area. The Hymen was intact, with no tear or injury. There was no sign of recent trauma. The remainder of the area was unremarkable.

  1. The statement of Mr. Roe, occurring following his transportation to the Police Department, is tainted by the coercive techniques employed in during the first statement

The second interrogation, occurring a short time after the coercive interrogation at the school, was tainted by the prior involuntary statements, and must be suppressed. In People v. Sims (1993 ) 5 Cal.4th 405, the court addressed whether or not a confession obtained the next day after the first confession, and with a Miranda waiver, was tainted by the Miranda violation that occurred on the first occasion.

Previous decisions have acknowledged that where–as a result of improper police conduct–an accused confesses, and subsequently makes another confession, it may be presumed the subsequent confession is the product of the first because of the psychological or practical disadvantages of having ” ‘let the cat out of the bag by confessing.’ ” (See People v. Johnson (1969) 70 Cal.2d 541, 547 [75 Cal.Rptr. 401,450 P.2d 865, 43 A.L.R.3d 366]People v. Spencer (1967) 66 Cal.2d 158, 167 [57 Cal.Rptr. 163, 424 P.2d 715].) (Sims, supra at p. 444-445.)

As the United States Supreme Court has explained: “[N]ot . . . all evidence is ‘fruit of the poisonous tree‘ simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ “(Wong Sun v. United States (1963) 371 U.S. 471, 487-488 [9 L.Ed.2d 441, 455-456, 83 S.Ct. 407]Johnson, supra, 70 Cal.2d at p. 548.) (Id. at p. 445.)

The degree of attenuation that suffices to dissipate the taint “requires at least an intervening independent act by the defendant or a third party” to break the causal

chain in such a way that the second confession is not in fact obtained by exploitation of the illegality. (People v. Sesslin (1968) 68 Cal.2d 418, 428 [67 Cal.Rptr. 409, 439 P.2d 321]; see People v. Rich (1988) 45 Cal.3d 1036, 1081 [248 Cal.Rptr. 510, 755 P.2d 960].) (Id.; see also People v. Edwards (1969) 71 Cal.2d 1096, 1105)

In Sims, the majority found that the passage of a day, and the initiation of the interview by the defendant removed the taint of the failure to Mirandize the defendant during a brief interview the day before. In the instant case, the second interrogation occurs the same evening as the first, and the taint is not the “technical” failure to give the Miranda warnings, but the employment of coercive techniques to secure a constitutionally involuntary confession. Unlike Sims, Mr. Roe did not request the second interview. Rather he was transported to the police department and interview that same night. The purpose of the Reid Method is to convince a suspect deemed guilty by the police to admit the conduct. The minimization and other techniques employed by the first officer were still if effect. The second confession is merely further exploitation of the first, and must be suppressed under mandate of the United States Constitution.

  1. Should the court find the statements admissible, the evidence of coercion is admissible before the jury on the question of the weight to be given the admitted statements.

Evidence of the circumstances under which a confession or admission was made is admissible as relevant to its weight and credibility. (Evid. Code 406; See Crane v. Kentucky, (1986) 476 U.S. 683, which held exclusion of this evidence reversible error.

The leading California case on the issue is People v. Carroll (1970) 4 Cal.App.3d 52. It addressed changes made necessary by the procedural change requiring that the judge make a decision of voluntariness outside the presence of the jury, and the legislative response in the form of Evidence Code section 405 and 406. Carroll holds, in essence, that the judicial decision on the admissibility of the confession is final, but that the jury still has the obligation to determine the weight to be given to the statement or confession.

The question that logically follows, in light of the proscription against a jury determination of voluntariness in relation to whether the confession may be considered as evidence at all, is whether evidence of voluntariness can be introduced before the jury for purposes other than determining admissibility of the evidence and, if so, the governing conditions. Manifestly, to deny a defendant the right to produce evidence before the jury that bears upon the truth or falsity of his confession, that is, the weight to be given such evidence as contrasted with its admissibility, would constitute reversible error. Section 405 eliminates any such implication by providing, in subdivision (b), that if a preliminary fact, that is, evidence relating to the admissibility of a confession, is also a fact in issue in the action, that is, is relevant to the question of guilt or innocence, the jury shall not be informed of the court’s determination as to the existence or nonexistence of the preliminary fact. In short, if evidence is presented before the jury relating to the integrity of the confession, which evidence previously has been presented to the court on the question of admissibility, the jury shall not be informed of the judge’s resolution of the fact issue at the voir dire hearing, and there is no impinging by the court upon the fact-finding province of the jury as to the issue of guilt or innocence. (Id. at p. 60.)

Thus all the evidence presented to the court on the question of voluntariness must also be presented to the jury in order that the jury may decide the weight to be given to the statement if the court finds that it is admissible.


In this matter, the charge of 288.7(b) is based solely on the coerced statements of the defendant, and the suggested statement of the child. There is no corroboration in the physical examination for a finding of penetration. The police employed the coercive technique of the Reid Method during both examinations of Mr. Roe. Suggestive techniques were then employed in the questioning of the child, where she first denied penetration, made ambiguous statements about penetration in response to suggestive questioning, and then denied penetration during the SART examination. Should the court decline to suppress the statements of Mr. Roe in total, the defense requests that the court suppress all admissions of penetration. In this case, the evidence of penetration was manufactured by law enforcement in its aggressive and improper questioning.

Dated: [DATE]


[Attorney Name],

Attorney for Defendant


I, [ATTORNEY’S NAME] declare:

  1. I am an attorney duly licensed to practice law in the State of California. I am a Certified Criminal Law Specialist. I am the attorney for the defendant in this matter. This matter is set for trial on April 13, 2020.

  2. I represent [NAME OF DEFENDANT] (“Defendant”) who is accused of

I declare the above under penalty of perjury except as to those matters based upon information and belief and as to those matters, I believe them to be true.

Executed in Pleasant Hill, CA on March 17, 2022.


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