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Panel allows Native American’s incriminating statements despite ‘historic trauma’

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A federal appeals court has rejected the idea that Native Americans may be more inclined to confess to crimes they did not commit based on “historical trauma” and cultural differences.

The three-judge panel of the 9th U.S. Circuit Court of Appeals overturned the ruling of an Arizona judge who said prosecutors could not use incriminating statements made by Calvert L. Woody, a Navajo Indian. The ruling, unless overturned, paves the way for Woody’s statements to the FBI to be used in court.

The appellate judges, in the unsigned opinion, said David McIntyre, the licensed psychologist who testified in the court of U.S. District Court Judge Neil Wake, admitted that he was making “very broad generalizations about Native Americans.” More to the point, the judges said McIntyre, who at the time was regional chief of the behavioral health branch for the Indian Health Service in Phoenix, said Woody had not been diagnosed with historical trauma because “there is no such diagnosis.”

And the appellate judges said it was wrong for Wake to throw out Woody’s statements even if McIntyre had specifically said Woody’s confession was based on cultural differences and historical trauma. “The impact such attributes had on the voluntariness of Woody’s statements remained only speculative.”

The appellate judges, however, did not address Wake’s very pointed criticism of the FBI, which deliberately did not tape the polygraph exam administered to Woody or the pre- and post-test interviews at which he made the incriminating statements. That is based on FBI policy which precluded such taping.

And Wake was clearly displeased he did not have such evidence to weigh how voluntary were Woody’s statements.

“It is a secret why the government purposely hamstrings courts in this way when recording equipment is available and only needs to be turned on,” the judge wrote.

“The FBI policy not to preserve this crucial evidence has no stated justification,” Wake continued. “It is a policy without purpose — or none that is admitted.”

The appellate judges instead focused only on what McIntyre testified and what Wake decided.

During a hearing, McIntyre said one factor that may have affected the voluntariness of anything Woody said was his heritage.

McIntyre discussed the “traumatic effects of certain events in Native American history” which he said “is internalized and passed on to later generations.” That, the psychologist said, means some Native Americans experience depression, substance dependence and other issues “as a result of unresolved trauma from historical losses (loss of people, land, and culture) that occurred to their forefathers … and transmitted to the younger generation.”

McIntyre said historical trauma does not affect all Native Americans.

“Nevertheless, historical trauma often induces a feeling of powerlessness that could render a Native American willing to provide desired information simply in order to terminate an uncomfortable interrogation,” Wake wrote in explaining McIntyre’s testimony. He said the psychologist testified that “many Native Americans avoid conflict at all costs, and when conflict becomes too great, they may submit or walk away rather than push back.”

All that, the judge said, may make Native Americans “more susceptible to interrogation pressures,” though Wake said McIntyre could cite no published research to support this conclusion.

And Wake said that, combined with Woody’s low IQ, made it difficult for him to resist the kinds of stresses and pressures of a police interrogation.

The appellate judges, however, said Wake’s decision to suppress Woody’s statements could not be justified in “the totality of the circumstances.”

They said Woody agreed to be interviewed and arrived at the FBI office voluntarily. They also said Woody acknowledged and waived his rights before questioning. And they noted that Woody was not under arrest at the time.

And the judge said Woody’s IQ of 82 is of “limited significance” in determining whether his statements were voluntary.

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