The emergence and significance of the "Mallott rule": The legal history

Journal of Psychiatry and Law

Volumn 29, Issue 2, 2001, Pages 121-146

  Johnson, Matthew B ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

COMPETENCE; COURT; CRIMINAL JUSTICE; GEOGRAPHIC DISTRIBUTION; HUMAN; LAW; MENTAL HEALTH; PERSONALITY TEST; POLICE; PSYCHOLOGY; REVIEW; UNITED STATES;

EID: 0035213997     PISSN: 00931853     EISSN: None     Source Type: Journal    
DOI: 10.1177/009318530102900202     Document Type: Review

References (92)

1. Stephan (& Harris) v. State, 1985 711 P. 2d 1156-1165, at 1157.
2. State v. Mallott, 1980, Alaska 608 P.2d 737-759.
3. S.B. v. State, 1980, Alaska 614 P.2d 786-790; and McMahan v. State, 1980 Alaska 617 P.2d 494-502.
4. Supra note 1.
5. State v. Scales, 518 N.W. 2d 587-594 (Minn.1994).
6. The right to counsel, the privilege against self-incrimination, and ultimately the right to a fair trial.
7. A. Fortas (1954), "The Fifth Amendment: Nemo Tenetur Prodere Seipsum," The Journal: Official Publication of the Cleveland Bar Association, 25, 6, 91.
8. Also see discussion of the history of law on confession evidence in D. Young (1996), "Unnecessary Evil: Police Lying in Interrogation," Connecticut Law Review, 28, 425-477.
9. Miranda v. Arizona, 384 U.S. 436, 16 L.Ed 694, 86 S.Ct. 1602 (1966), hereafter referred to as Miranda.
10. Dickerson v. United States (99-5525), Supreme Court of the United States, 6/26/2000, hereafter referred to as Dickerson.
11. Supra note 8, pages 712 & 718, respectively.
12. Supra note 8, page 706.
13. T. Grisso (1982), Juveniles' Waiver of Rights: Legal and Psychological Competence. New York: Plenum Press.
14. Also see T. Grisso (1980), "Juveniles' Capacities to Waive Miranda Rights: An Empirical Analysis," California Law Review, 68, 6, 1134-1166.
15. H. Wakefield & R. Underwager (1998), "Coerced and Nonvoluntary Confessions," Behavioral Sciences and the Law, 16, 423-440;
16. R. Underwager & H. Wakefield (1992), "False Confessions and Police Deception," American Journal of Forensic Psychology, 10, 3, 49-66.
17. Also see D. Young, supra note 7; R. Jerome (1995), "Suspect Confessions," The New York Times Magazine, 8/13;
18. and W. White (1979), "Police Trickery in Inducing Confessions," University of Pennsylvania Law Review, 127, 3, 581-629.
19. S. Kassin (1997), "The Psychology of Confession Evidence," American Psychologist, 52, 3, 221-233.
20. G. Gudjonsson (1992), The Psychology of Interrogations, Confession, and Testimony. Chichester, England: John Wiley & Sons.
21. Also see E. Barrett Prettyman (1997), "False Confessions and Fundamental Fairness: The Need for Electronic Recording of Custodial Interrogations," Boston Public Interest Law Journal, 6, 719-751,
22. and discussion of juvenile interrogation in M.B. Johnson & R.C. Hunt (2000), "The Psycholegal Interface in Juvenile Miranda Assessment," American Journal of Forensic Psychology, 18, 3, 17-35.
23. M.B. Johnson (1996), "Expert Examination of Miranda Waivers: Questions of Competency and Reliability," New Jersey Psychologist, 46, 3, 23-25;
24. also see M.B. Johnson & L. Torres (1992), "Miranda, Trial Competency and Hispanic Immigrant Defendants," American Journal of Forensic Psychology, 10, 4, 65-80.
25. J. Wulach (1981), "The Assessment of Competence to Waive Miranda Rights," The Journal of Psychiatry and Law, 9, 209-220.
26. G. Stricker (1985), "Psychological Assessment and Miranda Rights," Journal of Personality Assessment, 49, 6, 656-658.
27. See L. Falkenberg, "Man Freed on DNA Evidence," Fort Worth Star-Telegram, 1/17/2001, pp. 1 & 13A;
28. and also S.A. Drizin, "Coerced Confessions Shine Light on Taping," Chicago Sun-Times, 2/01/01, p. 29.
29. Adding insult to injury, part of Ochoa's plea bargain was that he would testify against his roommate, Danzinger, who was also charged in the killing. This stemmed from the tactic employed in the interrogation of informing Ochoa that Danzinger had implicated him in the killing. Danzinger was convicted at trial, and since his imprisonment suffered a severe beating that resulted in permanent brain damage. See P. Duggan, "Murder Case Stirs Doubts About Texas Process," The Washington Post, October, 17, 2000, p. A02
30. and Texas Monthly, January 2001, p. 97.
31. B. Ross, "Bash Suspect Freed: Video Alibi," Daily News, 8/18, 2000, p. 17.
32. A. Kotlowitz, "The Unprotected," The New Yorker, 2/08/99, 42-53.
33. A. Barthel (1977), A Death in Canaan, New York: Dell.
34. See supra note 15, E. Barrett Prettyman.
35. Id. Also see discussion of false confessions in Miranda, supra note 8, as well as G. Gudjonsson, supra note 15.
36. Supra note 2.
37. By "record" the court was referring to the record of testimony from trial.
38. Supra note 2 at 743.
39. Catlett v. State, 1978, Alaska, 585 P.2d 553-558.
40. Supra note 2. Justice Rabinowitz filed a separate opinion that concurred with the majority on the matter of Mallott's incriminating statements but dissented regarding other aspects of Mallott's appeal.
41. Id. at 558.
42. Uniform Rules of Criminal Procedure, Rule 243 (10 U.L.A. 57) (1974).
43. Id. at 57. Also see reiteration of recording recommendation in updated 1992 version of Uniform Rules of Criminal Procedure, Rule 243 (10 U.L.A. 32) (1992).
44. S.B. v. State, 1980 Alaska 614 P.2d 786-790.
45. Id. at 790.
46. McMahan v. State, 1980 Alaska 617 P.2d 494-502.
47. Id. at 496.
48. The blood flow was from an injury sustained by the defendant in an altercation with someone who tried to detain him until the police arrived.
49. The Alaska Supreme Court noted, however, that the Miranda warnings provided by the magistrate were inadequate in that it was not indicated to McMahan that he had the right to have counsel with him during the following interrogation.
50. Supra note 36, p. 498.
51. Supra note 2.
52. Supra note 34.
53. Supra note 1.
54. Supra note 1, at 1157.
55. Supra note 1. The Stephan court noted: "In interpreting the due process clause of the Alaska Constitution, however, we remain free to adopt more rigorous safeguards governing the admissibility of . . . evidence than those imposed by the Federal Constitution" (p. 1160). Further, the Stephan court stated: "The need to insure that the voluntariness of a confession can be confirmed by reference to an accurate and complete record is at least as important as the need to insure that the validity of breathalyzer test results can be independently tested" (p. 1160), referring to the Alaska Court of Appeals decision in Municipality of Anchorage v. Serrano, 649 P.2d 256 (Alaska App. 1982), which required preservation of breath samples for independent testing. In addition, the Stephan court cited the Model Code of Pre-Arraignment Procedure, 130.4, 1975.
56. Supra note 1, at 1161.
57. Supra note 1, p. 1161, citing Harris v. State, 678 P.2d at 414 (J. Singleton, concurring and dissenting).
58. Supra note 1. In a strongly worded admonition the Stephan decision held: "Anytime a full recording is not made, however, the state must persuade the trial court, by a preponderance of evidence, that recording was not feasible under the circumstance, and in such cases the failure to record should be viewed with distrust" (p. 1162).
59. Supra note 1, at 1161, noting that the concept of due process must evolve in concert with developments in technology and that police routinely use electronic recording when it is to their advantage.
60. State v. Scales, 518 N.W.2d 587-594 (Minn. 1994).
61. Id, at 592, ". . . to insure the fair administration of justice, . . .". In relying on its supervisory authority over the courts to mandate recording of custodial interrogation, the Minnesota high court did not deny the merits of the due process argument, it rather relied on a different legal foundation.
62. State v. Pilcher, 472 N.W.2d 327-337 (Minn.1991).
63. Id. at 333.
64. State v. Robinson, 427 N.W.2d 217-224 (Minn.1988).
65. Supra note 50 at 591.
66. Supra note 50 at 592.
67. Model Code of Pre-Arraignment Procedure 150.3(2) and (3) holds that a violation of the recording requirement is regarded as substantial when one or more of several conditions are established - e.g., violations that are prejudicial against the suspect, that are the authorized practice of the agency, that lead to misunderstanding on the part of the suspect, that risk false statements, that interfere with the suspect's ability to present adequate defense, that if allowed will encourage continued violation of the code.
68. Supra note 50 at 594.
69. Supra note 1 at 1161.
70. Supra note 34.
71. Supra note 1.
72. Supra note 2.
73. Supra note 36.
74. Supra note 50.
75. Supra note 2.
76. Supra note 29.
77. Supra note 32.
78. Supra note 1.
79. Supra note 45.
80. Supra note 32.
81. Supra note 45.
82. Supra notes 52 & 54.
83. Supra note 57.
84. Supra note 9. Also see A. Fortas, as well as D. Young, supra note 7.
85. Id.
86. Id.
87. Id.
88. Supra note 15.
89. Colorado v. Connelly, 107 S.Ct. 515, 479 U.S. 157 (1986).
90. R. Miller (1994), "The U.S. Supreme Court Looks at Voluntariness and Consent," International Journal of Law & Psychiatry, 17, 239-252.
91. Johnson v. Zerbst, 304 U.S. 458 (1938).
92. See T. Grisso (1980), supra note 12.