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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.                     False 

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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 

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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.

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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

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