Interrogations-and-Confessions-Handbook

292 A Psychology of Interrogations and Confessions
order, respectively, which detailed Zerbo’s extensive history of mental illness
and his IQ of 80.
As to the interview in Zerbo’s home, the court first considered whether he
was ‘in custody’. Applying the test that a suspect is not in custody ‘if a reasonable
person in the suspect’s position would have felt free to terminate the
interrogation and leave’, the court concluded that although Zerbo, because of
his mental limitations, did not feel free to terminate the interview, a reasonable
person would have known that he could have done so. Thus, the court found
that custody was determined by what a ‘reasonable person’ would have felt,
regardless of the suspect’s actual characteristics. Accordingly, Zerbo was not ‘in
custody’, and therefore not entitled to receive Miranda warnings. 31
The court’s second test was whether the statement was voluntary, taking
into account Zerbo’s characteristics, the conditions of the interrogation and the
officers’ conduct. Citing extensively from the three psychiatric reports, together
with its own observations of Zerbo’s testimony and demeanour, the court concluded
that Zerbo was ‘exceedingly submissive, highly suggestible and easily
confused’. The court then found that the conditions of the interrogation—his
isolation from his sister and the officers’ assurances that they were there on his
behalf, rather than to investigate a crime, ‘improperly distorted Zerbo’s view
of the proceedings and interfered with his already tenuous capacity to make
rational choices’. 32
Regarding the officers’ conduct, the court did not credit their claim that it
was merely an investigatory conversation, since they had already determined
that Zerbo had committed the alleged crime when they went to his house.
Accordingly, their purpose was ‘not to “investigate” or discover Zerbo’s version
of events, but to elicit a confession from a prime suspect’. 33 The court concluded
that, under the totality of circumstances, the statements that Zerbo made in
his home were the product of an overborne will and must be suppressed.
As to Zerbo’s statements after his arrest two days later, the court found
that, given his low intelligence, his testimony that he had not understood the
Miranda warnings and the experts’ assessment of his mental state, he could
not have knowingly or intelligently waived his rights after his arrest. 34 Nor was
his waiver voluntary given the following factors:
1. given Zerbo’s average size and compliant attitude at the previous interview,
sending seven officers to arrest him in his home indicated a desire to
intimidate him, rather than legitimate law enforcement concerns;
2. the deprivation of food and medication, in conjunction with Zerbo’s mental
illness and diminished intelligence, made it impossible for him to ‘voluntarily’
relinquish his Miranda rights and
3. the court did not credit the officers’ claim that they knew nothing of Zerbo’s
history of mental illness, since they knew, at the very least, that he was an
outpatient at the same hospital where they worked, and had investigated
his history there before going to his home.
31 United States v. Zerbo at ∗ 8.
32 United States v. Zerbo at ∗ 10.
33 United States v. Zerbo at ∗ 11.
34 United States v. Zerbo at ∗ 12.