Forward from Karen Wilkinson
Indiana Chapter 14 IAAI President


JOHN E. REID AND ASSOCIATES, INC.

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November 15, 2007





- Reid Investigator Tip -

November / December 2007

INTERROGATION PROCEDURES: PROMISES OF LENIENCY



TO: IAAI International Association of Arson Investigators Indiana Chapter



Dear Reid Preferred Group of Associations (RPGA) Member:



Bi-monthly we prepare an Investigator Tip for our web page. As a
continued service to our RPGA members, these tips will be forwarded to
you. Following is our November/December Tip – INTERROGATION
PROCEDURES: PROMISES OF LENIENCY.



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JOHN E. REID AND ASSOCIATES, INC.

209 WEST JACKSON BOULEVARD, SUITE 400 CHICAGO ILLINOIS 60606


- Investigator Web Tip -

November / December 2007

INTERROGATION PROCEDURES: PROMISES OF LENIENCY

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."





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[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.



(This article was prepared by John E. Reid and Associates, Inc. as
their Investigator Web Tip. For additional 'tips', go to www.reid.com
and select 'Educational Information' and 'Investigator Tip'. To
request a copy of a specific 'tip', contact Janet Finnerty
1-800-255-5747 ext. 18 or johnreid@.... For more information
regarding Reid seminars and training products, contact John E. Reid
and Associates, Inc. at 1-800-255-5747.)



Established in 1947

If it doesn't say "The Reid Technique" it's not John E. Reid and
Associates, Inc.

800-255-5747 • 312-583-0700 • fax 312-583-0701