Use of boy's statements to police up to judge

4-day evidence supression hearing ends without ruling

After four days of testimony and arguments by attorneys, it will be up to a judge to decide if videotapes showing 12-year-old Cristian Fernandez being interrogated by police will be shown at his upcoming trials on charges of first-degree murder and sexual battery.

Fernandez, now 13, is accusing in the beating death of his 2-year-old brother and of sexually abusing a 5-year-old brother. He said in the courtroom in an orange jumpsuit quietly following orders and asking no questions as attorneys argued his case.

At issue in the evidence suppression hearing was whether the boy understood his rights before being questioned by officers.

Prosecutors say yes.

"The defendant was coherent, he was not confused," said Assistant State Attorney Mark Caliel. "No witness testified nor is there any evidence on the record that he was scared, that he was ill."

Defense attorneys argued that the boy didn't comprehend his rights.

"He's read a constitutional rights form and he's asked the very first time, 'You understand you do not have to make a statement,' and his answer was, 'No,'" said Hank Coxe.

Videotapes of police interviews of Fernandez show investigators reading the boy his Miranda rights.

The prosecution claims he agreed twice to waive his right to remain silent and his right to speak with an attorney before proceeding. They say Fernandez never asked for any guidance.

"They weren't using lies or deceit to get him to admit to certain facts or circumstances, or to agree to talk to them," Caliel said told Judge Mallory Cooper. "There was no improper police conduct whatsoever. The videotape speaks for itself."

The defense team argues that Fernandez clearly didn't comprehend what was happening to him, and as a child, he had no experience dealing with police. They say that after being held in solitary confinement, Fernandez would have answered yes to anything just to wrap up the conversation.

"Every single expert who testified in this proceeding said without hesitation he could not have understood or appreciated the choices that he had, the significance of the choices he would make," Coxe argued.

After closing arguments Tuesday morning, the hearing was adjourned. Cooper said she would issue her ruling on whether the boy's statements will be allowed at trial on or before Aug. 7 -- the next pretrial appearance on the schedule for Fernandez.

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