A recent decision of the Hamilton County Court of Appeals may be helpful to law enforcement officers in deciding what promises can be made while interviewing a criminal suspect and what promises should not be made.
On the night of October 23, 1995, two black males robbed James Overpeck, the attendant at a Swifty Service Station. After Overpeck filled the car with gas, the driver pointed a gun at him and demanded his money. The car then left. Overpeck called the police and gave them a description of the car, the license plate number, and a description of the driver and passenger.
The police immediately ran the license plate number through their computer and determined where the owner of the vehicle lived. Within five minutes of the robbery, they observed Kevin Wilson driving the vehicle described by Overpeck. Overpeck was brought to the scene, and he identified Wilson. Wilson was then aressted and taken to the police station for questioning.
At the station, a police officer questioned Wilson about his involvement. Wilson requested a lawyer and asked that he be allowed to call his grandmother because she had an attorney. After speaking to his grandmother, he told the officer that his grandmother would say that he was in the house and that he didn't have anything to do with the robbery.
The tape-recorded interview then revealed the following exchange between Wilson and the officer:
[Officer:] Okay. You understand there is a big difference between aggravated armed robbery and theft?
[Wilson:] Yeah.
[Officer:] You understand that? If you tell me what happened I can assure you that it's going to be a theft offense. If you don't tell me I am going to let it go as an aggravated armed robbery, you understand that?
Eventually, Wilson confessed to his involvement in the robbery. He was charged with one count of aggravated robbery, found guilty after a jury trial, and sentenced to ten to twenty-five years. But in State v. Wilson (1996), the Court of Appeals overturned his conviction because the arresting officer improperly induced Wilson's confession.
Once a suspect has been arrested, the suspect's confession will not be admissible as evidence unless he voluntarily, knowingly and intelligently waives his right not to incriminate himself. A suggestion of leniency by the police does not automatically invalidate a confession, but it may be a factor in determining whether the confession was voluntary. Ohio courts have held that the following are permissible:
However, the appellate court in State v. Wilson determined that the officer had "stepped over the line because of the certainty of the promise and its obvious appeal[.]" That promise was very specific and very appealing to someone in Wilson's situation; it could have easily induced him into making a confession when he would have otherwise remained silent. "The line to be drawn between permissible police conduct and conduct deemed to induce ... an involuntary statement does not depend upon the bare language of inducement but rather upon the nature of the benefit to be derived by a defendant[.]" The arresting officer clearly promised Wilson that if he confessed, he would be facing only a theft charge rather than an aggravated robbery charge. This "absolute promise" by the arresting officer was "so extreme as to render the confession involuntary."
The moral of the story is simply this: when interviewing a suspect, be careful what you promise. Urging a suspect to be truthful or making general promises that his cooperation will be considered are acceptable. But promises about the charge, the sentence, or a specific benefit go too far. If it takes a specific promise to get a confession, the confession will probably not be admissible, anyway.