Is a police officer allowed to promise “No Jail” in exchange for cooperation and a ‘voluntary’ statement?

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.

“If you talk with us and tell us what happened, we will get you counseling and promise you will not go to jail!!!”  Is this lawful in New Jersey???

The key to this decision is a defendant’s decision to provide a statement after he was given his Miranda warnings. The defendant argues that the police obtained his statement after they promised that any confession would not result in incarceration.  In other words, the police promise to defendant, if he waved his Miranda rights and gave a statement, he would receive counseling and not go to jail.

As usual, the Appellate Division is required to give the trial court’s findings great deference so long as those findings are supported by sufficient credible evidence found in the record especially when they are grounded in the trial judge’s “feel of the case” given his/her ability to assess a witnesses demeanor and credibility. See Generally State v. Robinson 200 NJ 1, (2009), and State v. Elders 192 NJ 224 (2007).  That standard of review also applies where there is an actual video or documentary evidence of a defendant’s statement. The Appellate Division will also not reverse the trial court findings of fact based on its review of a custodial interrogation unless the court’s findings are clearly erroneous or mistaken. In that case there must be a review of the legal issues and law ‘de novo’.

With regards to a statement given during a custodial interrogation, the law requires the state prove beyond a reasonable doubt that the defendant’s confession was voluntary and not provided because the defendant will was over borne. State v. Knight  183 NJ 449 (2005). The state must also prove that the defendant was advised of his right to knowingly, voluntarily and intelligently waived his/her right to remain silent under Miranda. State v. W.B.  205 NJ 588 (2011).

In order to make a determination of “proof beyond a reasonable doubt” the court must assess the ‘totality of the circumstances’ in both the character intensity of the nature of the interrogation. The court must ask if the defendant’s confession was the product of an essentially free and unconstrained choice by the defendant or whether his will was overboard and his capacity for self determination critically impaired. The factors to this analysis include the suspect’s age, education, intelligence, advice concerning constitutional rights, length of the detention, whether the questioning was repeated and prolong, and whether there was physical punishment or mental exhaustion involved.  The court will also consider a defendant’s prior and counters with law-enforcement and the time that has a lapse between the administration of Miranda warnings and a defendant’s confession.

Nevertheless, our New Jersey Supreme Court, and the US Supreme Court have recognize that officers are allowed to use psychological coercion including trickery without violating a defense’s right against self-incrimination. “Misrepresentations by police officers to the subject of interrogation are relevant and useful in analyzing ‘the totality of circumstances’ but misrepresentations alone or insufficient to justify a determination of involuntary statements being made by a defendant.” The New Jersey Supreme Court has stated, “misrepresentation by police does not render a confession or waiver involuntary unless the misrepresentation actually induces the confession.”

Nevertheless again, an officer’s promise of leniency is a factor in the totality of circumstances analysis. However, certain promises regardless of ‘circumstances’ are so attractive that they render a resulting confession involuntary.  The promise of immunity in the form of an assurance by Police that a statement will not be used against an accused or will be considered “confidential” will render a statement involuntary. The trial court is required to consider the circumstances surrounding such a promise including,

  1. the nature of the promise,
  2. the context in which the promise was made,
  3. the characteristics of the individual defendant,
  4. whether the defendant was informed that his Miranda Rights,
  5. whether counsel was present, or
  6. other factors to be assessed qualitative way by the court.

Presence of even one of those factors may permit the court to conclusion that the confession was not voluntary.  In addition, a promise by an officer must be viewed from the defendant’s perspective as opposed to the usual “totality of circumstances ” or a  reasonable officer’s perspective.

Under this analysis, the defendant in this case argues that the police clearly misled him by making the promise of no jail if he spoke to them. He argues that this promise over borne his will and as such his confession was not voluntary.  In addition, the officers involved in this case kept telling the defendant they would help him determine the type of counseling he needed and the facilitate his receipt of such counseling. The court did determine that this “promise” did not alone render the defendant’s confession and involuntary under the totality of the circumstances. Nevertheless the office was also promising the defendant that if he spoke to them he would not go to jail. After the defendant told the officer that he was tired and wanted something to eat and drink, he asked whether he is going to jail tonight “. Again, their answer was NO!

In another case, and officers comment “the only thing you can possibly do is help yourself out. You were not going to get yourself in any more trouble than you already are in you can only help yourself out here ” was an improper instruction and contrary to the longstanding mandated Maranda warnings. This technique was deemed improper because the defense was tricked to give a statement because anything other would ‘harm him”. Here, the officer was acting in the same manner suggesting that the confession will help him stay out of jail and not result in incarceration. The officer’s representations were in direct contrast to key Maranda warnings at issue concerning the defendant’s right against self incriminating statements.  Here, the officer’s offer to obtain counseling for the defendant went well beyond mere promises. The office directly or indirectly assured the defendant that if he spoke with them he would not go to jail and as a result the defendant was induced to confess by the officers promises.

Jeffrey S. Hark, Esq.
609-471-1959. Cell
856-354-0050 Office


Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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