For a confession to be admissible as evidence it must not only be trustworthy, but also voluntary. The test of voluntariness answers the question, “was a statement made of the suspect’s free will?” The concept of “free will” has a somewhat different meaning in law than it does in psychology. A psychologist would argue that if a person is able to make any behavioral choice he is operating from his own free will. Legally, however, the concept of free will relates to whether a statement was made in the absence of threats or other inducements. These “other inducements” generally refer to promises of leniency.
Promises of leniency occur on a continuum ranging from statements that clearly offer a lesser sentence, “If you confess, I will make sure you don”t do hard time,” to statements that merely imply leniency in exchange for a confession, e.g., “I want to help you out on this thing.” The Canadian Supreme Court has established a quid pro quo guideline in evaluating promises of leniency. In other words, only statements that clearly offer the suspect leniency in exchange for a confession are prohibited.[i] The U.S. Supreme Court will consider even implied promises of leniency as part of the totality of circumstances in determining a confession’s admissibility.
The courts’ concern over promises of leniency is that an innocent suspect who is caught in a web of circumstantial evidence may decide to falsely confess to avoid a more significant punishment. There is no doubt that decreasing consequences is a tremendously powerful inducement to confess. An example of this occurs on rare occasions when we are permitted to interrogate suspects on behalf of a defense attorney. Because we are operating under privileged communication, anything the suspect tells us cannot be used against him in a court of law. Once we mention this during the interrogation, almost all of these suspects confess within a short period of time.
What is not established is that promises of leniency cause false confessions. An attempt has been made to address this question through laboratory studies, [ii] but there is no empirical or statistical data that supports the premise that in real life interrogations promises of leniency increase the prevalence of false confessions. Our belief is that a promise of leniency, in and of itself, would not be likely to cause an innocent person to confess. On the other hand, when a promise of leniency is coupled with a threat of more significant consequences, we believe there may be a significant risk of a false confession.
Even the courts seem to acknowledge that a promise of leniency, if made under proper circumstances, is permissible. For example, it is a common practice for a prosecutor to offer a plea bargain to a defendant. Under this arrangement, the defendant agrees to plead guilty in exchange for leniency. The leniency may involve reducing the number of criminal charges against the defendant, decreasing the charge e.g., rape to battery, or a lesser sentence, e.g., life in prison vs. execution. To guard against innocent suspects entering into this agreement, courts generally require that the defendant confess details of his crime during the hearing.
Seeing the ease at which prosecutors obtain confessions by offering defendants plea bargains has caused some investigators to try the same tactic during an interrogation, e.g., “Joe, you can avoid a first degree murder charge if you tell me that you didn’t plan this out.”[iii] The investigator is then bewildered when the court suppresses the defendant’s confession. The rule of law is very simple: An investigator cannot offer the suspect a promise he cannot keep. Our criminal justice system affords prosecutors and investigators different powers in the effort to obtain evidence against a defendant. Prosecutors alone have the authority to make charging decisions and sentencing recommendations. Even if the investigator is best friends with the prosecutor and is almost certain that the prosecutor will go along with the suggested leniency, the promise is still impermissible because the investigator does not have the legal authority to offer it.
In an attempt to get around this legal technicality, investigators have made statements designed to allow the suspect to perceive possible leniency in exchange for a confession. Especially when an interrogator repeatedly mentions implied leniency, a court may suppress the confession.[iv] Examples of statements that courts have ruled communicate an implied promise of leniency include:
“The best thing you can do is to confess.”
“It would be far better for you if you tell the truth.”
“I want to help you out on this thing.”
“I want to be an advocate for you on this matter.”
“It will go worse for you if you don’t confess.”
On the other hand, courts have not objected to interrogation techniques designed to reduce the perceived moral seriousness of a crime. Some of these permissible techniques include expressing understanding toward the suspect’s decision to commit the crime, e.g., “Joe I can understand why this thing happened”; referring to the crime with soft language, e.g., causing the death vs. murder; avoiding any mention of possible consequences the suspect faces if he confesses. Similarly, courts have not objected to the phrase, “I want to get something working on your side” or, “I want to work with you to get this matter straightened out.”
Furthermore, there are unique circumstances where investigators can legally make a promise to a suspect because the investigator has the authority to keep the promise. For example, in a correctional setting, an inmate may be promised certain privileges in exchange for truthful information. A corporate investigator may be able to promise an employee that he will not be prosecuted. Under this principle a police officer could make the following statement:
“Joe, I’m not going to arrest you tonight. You can go home and put your personal affairs in order and you can tell your wife whatever you want. Tomorrow morning I will stop by your house and I’ll take you into custody at that time.”
This exception, of course, is only true if the investigator keeps his promise, e.g., provides the inmate with privileges; does not prosecute the employee; allows the suspect to leave following the interrogation.
Applying the same principle, we believe the following statements are each permissible during an interrogation because the investigator is able to keep the promise:
“I’m not going to call up your wife and tell her that you are some sort of monster.”
“I’m not going to announce this to your co-workers or post it on the bulletin board.”
“I will include in my report that you were cooperative and that this is the first time you’ve done something like this.”
Promises of leniency are often introduced during an interrogation when the suspect asks the
investigator, “What would happen to me if I told you I did this?” The following response in no way implies leniency and satisfies most suspects:
“Jim, I don’t have the authority to tell you and I’m not going to lie to you and say that I do. My job is to collect and analyze evidence. After that I just turn in my report and let other people act on my findings. I would like to be able to include your explanation in my report, which is why I am talking to you now.”
If the investigator slips up and finds himself making a statement that may be perceived as an implied promise of leniency, often the damage can be repaired by making a prophylactic statement, essentially setting the suspect straight by telling the suspect that the investigator does not have control over the consequences the suspect may face.
In conclusion, especially with the increased practice of electronically recording interrogations, investigators need to be very cautious not to make statements that may be construed as direct or implied promises of leniency. It is our general recommendation not to bring up the criminal justice system at all during an interrogation. An investigator can conduct a very effective interrogation without mentioning possible criminal charges, how the prosecutor, judge or jury may perceive the suspect’s crime or possible consequences for the suspect’s actions such as substance abuse treatment, probation, counseling, community service, etc. Courts will be favorably impressed to hear the investigator tell a suspect, “I cannot offer any promises about what will happen to you if you tell me the truth.”
[i]R. V. Oikle, 2000 SCC, 38.
[ii]Kassin, S. & McNall, K., “Police Interrogation and Confessions: Communicating Promises and Threats by Pragmatic Implication,” Law and Human Behavior 15, 3 (1991) 233-254
[iii]. People v. Cahill (1994) 22 Cal. App 4th 296, 312 The defendant’s confession was held inadmissible because it was given in response to representations that the defendant could avoid a charge of first degree murder. Com. v. DiGiambattista 813 N.E. 2d 516 (2004) Suggesting that if defendant confessed he would get counseling instead of jail constituted a promise of leniency.
[iv]People v. Fuentes (2006) B184728 Court of Appeals, 2nd Dist, CA During this video-taped interrogation the investigator repeatedly told the suspect that it would go far better for him if he confessed and that if he continued to deny his involvement that it would go much worse for him in court. The court ruled the defendant’s confession involuntary.
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