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Name: Ortiz v. Uribe
Case #: 09-55264
Court: US Court of Appeals
District 9 Cir
Opinion Date: 11/18/2011

Defendant’s confession was voluntary even though a polygraph examiner failed to reveal she was a law enforcement officer and showed defendant empathy. Ortiz was convicted of murder and other charges after the trial court denied in part his motion to suppress statements he made to a polygraph examiner after he waived his Miranda rights. The examiner did not reveal to defendant that she was a sheriff’s deputy and spoke to him in empathic tones regarding administering the examination. However, this did not render the confession involuntary as the detective’s advice that Ortiz must tell the truth to pass the polygraph examination, was not coercive. The Court of Appeal’s finding that the detective’s use of a parental tone in preparing Ortiz for the polygraph examination did not violate Ortiz’s Fifth Amendment rights. Nor did the detective’s failure to identify herself as a sheriff’s detective overbear Ortiz’s will, as she never suggested she was acting solely in his interest. Even if Ortiz was deceived by the detective’s comments into believing she was not a member of law enforcement, this type of deception is within the range of accepted interrogation tactics.

Application of Marsy’s Law to petitioner’s case does not violate the prohibition against ex post facto laws. Before Marsy’s Law amended Penal Code section 3041.5 in 2008, the statute provided for annual parole review, with BPH discretion in some cases to defer subsequent hearings for two or five years. Marsy’s Law gives the BPH discretion to set subsequent parole hearings 15, 10, seven, five, or three years after it denies parole. Petitioner’s next hearing was set seven years hence. This did not violate ex post facto laws because the amendment to section 3041.5 did not increase the punishment for petitioner’s crime.