• Coerced Confessions and Offers of Leniency
• Offers of Leniency and the Fifth Amendment Self-Incrimination and Due Process Clauses

An offer of leniency—actual or implied—made to a criminal suspect is a form of “coercion” that may result in the suppression of any resulting incriminating statements.  What is, and is not, an offer of leniency depends upon the circumstances.

Defendant Anthony Scott Zabelle and another unidentified person assaulted a man referred to only as “Scott” in an attempt to retrieve money allegedly owed by Scott.  In the assault, apparently documented on a surveillance camera from somewhere, defendant came up behind Scott in an alley way and hit him over the head with a glass bottle.  Upon Scott falling to the ground, defendant “stomped on his head.”  Defendant and his unnamed accomplice then rifled through the unconscious Scott’s pockets, taking some personal belongs (a pipe and a knife) and his wallet containing about $100.  Police found the still unconscious Scott in the alley with a two-inch laceration to the back of his head.  The officers tracked defendant down to a nearby motel and took him into custody.  Defendant was read his Miranda rights which he acknowledged understanding.  He immediately denied culpability (“I didn’t rob nobody”).  One or more of the officers questioned defendant (in a very disjointed interrogation), commenting at the beginning of the interrogation that; “[t]here is a very critical time where you can earn possibly some consideration.”  A few minutes later in the questioning, the officer told defendant: “You know we can’t make any guarantees but sometimes being honest and up front, admitting your involvement and—and what you did can go a ways to showing your remorse and . . . (s)ometimes that works in your favor. Sometimes it doesn’t.”  Defendant immediately thereafter admitted that blood on his shoes was “probably” Scott’s.  This was followed up with a somewhat disjointed confession.  Defendant’s confession (such as it was) was used against him at trial.  He was convicted of second degree robbery (P.C. § 211). The jury also found true the allegation that defendant inflicted great bodily injury on Scott during the commission of the robbery (P.C. § 12022.7(a)). The trial court sentenced defendant to eight years in prison and he appealed.

The Third District Court of Appeal affirmed (except to remand for resentencing).  The primary issue on appeal was whether defendant’s confession had been “coerced,” as the product of an offer of leniency.  The alleged offer of leniency was in the form of the interrogating officer’s implied promises that he would receive consideration in sentencing if he admitted to the robbery.  The general rules on this issue are well settled:  Coerced confessions violate the Fifth Amendment’s privilege against compulsory self-incrimination and the guarantee of due process.  (Withrow v. Williams (1993) 507 U.S. 680, 688.)  As such, a resulting confession is inadmissible in trial.  “This is so not because such confessions are unlikely to be true but because the methods used to extract them offend an underlying principle in the enforcement of our criminal law: that ours is an accusatorial and not an inquisitorial system—a system in which the State must establish guilt by evidence independently and freely secured and may not by coercion prove its charge against an accused out of his own mouth.” (Rogers v. Richmond (1961) 365 U.S. 534, 540–541.)  A confession is considered to be “coerced” if it is the product of an interrogating officer’s promise—express or implied—to the defendant that he can expect some form of leniency in exchange for a confession.  But it takes more than “mere advice or exhortation by the police that it would be better for the accused to tell the truth” when such advice is unaccompanied by either a threat or a promise.  Pointing out to a suspect the benefits which naturally flow “from a truthful and honest course of conduct” does not make the suspect’s resulting statements involuntary.  It only becomes a problem when “the defendant is given to understand that he might reasonably expect benefits in the nature of more lenient treatment at the hands of the police, prosecution or court in consideration of making a statement, even a truthful one, . . .”  (People v. Holloway (2004) 33 Cal.4th 96, 115.)  In this case, two statements by the interrogating officer were in issue.  As for the first statement (“[T]here is a very critical time where you can earn possibly some consideration.”), the Court considered it to be too vague, under the circumstances, to be considered a promise of anything.  At the most, this statement can only be considered a case of the officer simply informing the defendant that his full cooperation “could possibly” be beneficial in some unspecified way.  This, the Court concluded, “is not enough to show improper coercion under case precedent.”  As for the second contested statement (“You know we can’t make any guarantees but sometimes being honest and up front, admitting your involvement and—and what you did can go a ways to showing your remorse and . . . (s)ometimes that works in your favor. Sometimes it doesn’t.”), the Court found it not to be an offer of leniency in any sense, noting that “‘[w]hen the benefit pointed out by the police to a suspect is merely that which flows naturally from a truthful and honest course of conduct,’ the subsequent statement will not be considered involuntarily made.’” (Holloway, supra, at p. 115.) This statement amounted to no more than the officer truthfully telling defendant that a suspect’s cooperation sometimes works to his benefit, and sometimes it does not (the Court noting Cal. Rules of Court, rule 4.423(b)(8), where it is specified that an early admission of guilt is a factor to be considered by a sentencing court in mitigation).  The Court found “nothing unduly coercive in this comment.”  Defendant’s conviction was therefore affirmed (except for remanding the case back to the trial court to correct a sentencing error).

The bottom line here is that police officers have no right to be plea bargaining with a criminal suspect.  Only a prosecutor, with the approval of the court, has the legal authority to plea bargain.  (See Pen. Code §§ 1192.1 et seq.)  Offers of leniency are a form of plea bargaining, in effect.  Unfortunately, the misconception that it is a good interrogation tactic for officers to engage in plea bargaining with an in-custody suspect, suggesting that he or she can get a deal by cooperating, is promulgated by the multitude of police shows on television where this rule is consistently violated.  If an officer feels the need to work out a plea deal with a suspect, the local prosecutor must be involved.  Offers of leniency made by interrogating officers is a reoccurring problem.  In this case, the officer’s first comment to the defendant (i.e.: “[T]here is a very critical time where you can earn possibly some consideration.”) comes dangerously close, in my never-to-be-so humble opinion.  Had it been expounded upon, rather than simply ignored by the defendant, then—assuming defendant’s subsequent confession had been admitted into evidence—it could have resulted in a reversal of this conviction.  By the same token, as indicated above, the case law is clear that merely commenting on the benefits that “naturally (flow) from a truthful and honest course of conduct,” such as “you’ll feel better,” does not constitute an offer of leniency.  The bottom line is that when interrogating a suspect, an officer has to remain vigilant not to say anything that can later be interpreted—even impliedly—as an offer of a lighter sentence or some other benefit.