19 thoughts on “Under Duress

  1. First, doesn’t everyone claim that their statement was given under duress? Second, ordinary cops, like these, aren’t generally the ones that questions folks. That is what detectives do.

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  2. Wait? I can claim any statements given to police are under duress if I am afraid I’ll lose my job because of the interrogation? Oh please let that become a precedent.

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  3. We need not begrudge these criminal defendants their ability to utilize all the process they are due and the availability of every defense on their merits as decided by impartial judges and juries.

    Thereafter, let every defendant get the benefit of the legal processes and defenses that these defendants were afforded. Equal protection of the law and all that.

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      • Now that you made me look into it, I’m doubtful that a threat of losing one’s job is duress, at least as traditionally defined. Maryland law may be different, though, and I am not admitted to practice in Maryland so I cannot render an opinion applicable to this specific case. Also bear in mind that I’m a civil lawyer, and have little experience in criminal law. I do know how to quickly comprehend summaries of the law like the Restatement and digests from reasonably reliable sources. So I found some summaries of “duress” mainly from Nolo Press, whose stuff is written by lawyers familiar with the subjects upon which they write.

        Moving on to your specific questions:

        If a statement is found to be made under duress, is it automatically disqualified?

        At the threshold, it’s semantically useless to call these things “statements.” They wouldn’t be useful unless they were “confessions.”

        Moving along, Mostly yes, but not always. The real standard is whether the confession was given “voluntarily.” Duress strongly suggests that the confession was not voluntary. But there are circumstances where it may not be a trump card — for instance, if a defendant knowingly or recklessly seeks out a likely violent situation, she significantly diminishes the strength of a subsequent claim of duress.

        Are there objective criteria for defining duress?

        Sort of, but ultimately no. They’re more like… “guidelines.” Upon a motion to exclude evidence by the defense, a judge’s assessment of what was reasonable, viewed under the totality of the circumstances, governs. From there, “duress” is a term of art, typically invoked as an affirmative defense to a crime rather than a basis for invocation of the exclusionary rule.

        The defense has three principal elements: (1) defendant perceives and immediate threat of death or serious bodily injury, to self or someone very close to her; (2) defendant reasonably fears someone will carry out the threat; and (3) defendant lacks a reasonable opportunity for escape, other than compliance with the coercer’s demands.

        Because loss of a job is not the same thing as death or serious bodily injury, I don’t think these statements were made “under duress” as that term is used in my ultra-quick, no-way-would-I-do-this-little-in-a-real-court-situation spot survey of criminal law.

        What these suspects went through is hardly any worse or morally offensive than the deceptive investigatory practices commonly used by detectives on unsophisticated civilians. I say that while presuming their innocence.

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        • The real problem is if ‘My job might be in jeopardy’ is ‘duress’, than what is ‘We are going to find evidence of this and lock you up for it, so you better explain yourself before then’, which cops use *all the time*.

          Seriously, if ‘might lose job’ is duress, ‘might go to jail for longer’ is *certainly* duress.

          Likewise, another problem arises…if threatening to fire a police officer who pleads the fifth is ‘duress’, it’s hard to see how that would actually be legal *to do*, which results in a insane conclusion that every police officer can just turn in reports with ‘Fifth amendment’ scribbled across them and not be punished or fired for it.

          Being under ‘duress’, at the very least, implies that something *illegal* is being threatened.

          At the threshold, it’s semantically useless to call these things “statements.” They wouldn’t be useful unless they were “confessions.”

          I’m actually a little baffled how they think excluding the statements would help. Even *if* they were poisonous fruit (which they aren’t.), they’re *cops*. They were involved in an incident. As such, they were required to report on what happened.

          They had three choices:
          1) They lie about what happened, which is, let us remind ourselves, a *crime*.
          2) They plead the fifth, which of course results in an investigation, and results in them being questioned again under Miranda.
          3) They tell the truth…which did result in an investigation. And resulted in them being questioned again under Miranda.

          Even in some hypothetical universe where this was ‘duress’, and thus what they said was ‘poisonous fruit’, you get to the second questioning *either way*, or you have the officers commit felonies by lying to the police and impeding an investigation!

          ‘Your failure to warn me I was a suspect resulted in my inability to commit felonies to get myself out of the charges’ is not exactly a winning argument for court.

          What these suspects went through is hardly any worse or morally offensive than the deceptive investigatory practices commonly used by detectives on unsophisticated civilians.

          And that is the reason they deserve complete mockery and scorn. They are people who know the system, who are part of the system, and suddenly claim normal parts of the system are unfair when presented with them.

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  4. I’m trying to put myself in these people’s shoes. They made statements trying to keep their jobs. Presumably they didn’t say, “yeah, we totally killed that guy. I wouldn’t say so ordinarily, but I have to since I want to continue my gainful employment with the Baltimore Police Department.”

    It’s more likely they said “I did everything I was supposed to do.”

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  5. The important thing to me on this issue is that it’s a further indictment of cop cultcha. So I don’t particularly care about how this shakes out for the individual cops. I mean, even the best case here – that they actually made false statements under duress and are trying to exonerate themselves based on that defense – impugns the credibly and integrity of the culture they were working in, seems to me.

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  6. Two of the officers said that when investigators asked them to provide statements about the circumstances surrounding Gray’s arrest, they were led to believe they were doing so as witnesses — not as suspects.

    Wait, wait, they’re claiming *that* is duress?

    Investigators repeatedly referred to him as “L.T.,” in deference to his rank, which put him “at ease,” according to the motion.

    Oh no, putting the suspect at ease! Those bastards!

    Seriously, this is reading like a textbook ‘how cops lie to people to get them to confess to crimes’. Sucks to be on the other side, doesn’t it?

    White’s attorneys argue that because the initial statement was taken involuntarily, based on her fear of being fired, the second cannot be used either. They cite the “poisonous fruit” doctrine that holds that any evidence collected as the “fruit” of an earlier, involuntary statement is tainted.

    Uh, not how I understand it. While what they’re claiming would be true if the statement was actually made under *duress* (As in, a threat of assault), that is not supported by any facts. What *actually* happened is that the statement was made without Miranda warnings. (Although I would argue that we should, perhaps assume cops already *know* the rights they are legally required to inform people of!)

    Statements made without a Miranda warning usually can’t be used *in court* or even to get warrants and stuff, but they are not ‘poisonous fruit’. Poisonous fruit means they have to be completely disregarded, the police have to pretend they don’t know them. Whereas non-Miranda-ized speech is just something they can’t *use*.

    For example, if the police illegally search your house and see plans to last week’s bank robbery, which they had no other reason to suspect you of, they’re sorta screwed. Unless they have something *else* that would point towards you committing that bank robbery, they are required to pretend they don’t know know anything about your involvement, because it all comes from poisonous fruit.

    However, if the police detain you, and without Mirandizing you, ask you what you were doing last week and you say ‘I was robbing that bank’, they probably can’t use *that* statement as evidence of anything, but they are allow to actually treat it as something they *know*, and then can, for example, *ask you* about that after Mirandizing you. (Which is, in fact, what happened here.)

    I was going to say ‘As far I know’ to all this, but it appears Wikipedia has a pretty comprehensive section on this, and it looks like I’m 100% correct. https://en.wikipedia.org/wiki/Miranda_warning#Consequences_of_violation

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