North Carolina Criminal Law NC Criminal Law

An involuntary confession can’t be used against a defendant at trial, not even to impeach him if he testifies. See, e.g., Mincey v. Arizona, 437 U.S. 385 (1978). Whether a confession is voluntary is determined by examining the totality of the circumstances, see, e.g., Withrow v. Williams, 507 U.S. 680 (1993), and asking whether “the confession [is] the product of an essentially free and unconstrained choice by its maker,” Schneckloth v. Bustamonte, 412 U.S. 218 (1973) (internal quotation marks and citations omitted). Factors that may be relevant to this determination include

whether [the] defendant was in custody, whether he was deceived, whether his Miranda rights were honored, whether he was held incommunicado, the length of the interrogation, whether there were physical threats or shows of violence, whether promises were made to obtain the confession, the familiarity of the declarant with the criminal justice system, and the mental condition of the declarant.

State v. Hyde, 352 N.C. 37 (2000) (internal quotation marks and citations omitted). None of these factors alone is dispositive. Thus, for example, “[a] promise of leniency renders a confession involuntary only if the confession is so connected with the inducement as to be the consequence of it.” State v. Pressley, 266 N.C. 663 (1966). Indeed, although police interrogations routinely contain suggestions that a truthful confession may be viewed favorably by the authorities, relatively few North Carolina cases have reversed criminal convictions as a result of such representations.

That brings us to State v. Bordeaux, a remarkable case decided by the court of appeals last month. The defendant was arrested, read his Miranda rights, and questioned for two hours in connection with a robbery. The videotaped interrogation culminated in a confession, but the trial judge ruled that the confession was coerced. On the state’s interlocutory appeal, the court of appeals affirmed. It found that the officers interrogating the defendant (1) falsely suggested that he was being investigated for a murder as well as the robbery, and (2) indicated that a confession would help him with “the judge,” thereby overbearing his will. The court cited State v. Fuqua, 269 N.C. 223 (1967), in which a confession was declared involuntary because a police officer told a defendant that “if he wanted to talk to me then I would be able to testify that he talked to me and was cooperative,” creating a hope of leniency.

It’s possible to quibble about the details of Bordeaux. For example, after initially suggesting that a confession might cause a judge to view the defendant favorably, one of the officers admitted “I don’t know what the [j]udge will say,” arguably undermining the impact of the inducement. On the other hand, the court of appeals didn’t remark on several striking aspects of the interrogation, such as the officers’ explicit threat to bring additional charges if they determined that the defendant was an “ass____,” or one officer’s statement that “if you want any assistance . . . any chance to live a normal life when this is over,” the defendant should confess.

Overall, though, it is neither the legal reasoning nor the outcome of Bordeaux that I find most noteworthy. It is the critical impact of the fact that the interrogation was videotaped. Absent a videotape, the facts about the interrogation would likely come out through the testimony of the officers at a suppression hearing. I have no reason to doubt that the officers would be anything other than completely honest, but a detached, after-the-fact summary is inherently incapable of capturing the feeling of a police interrogation. Imagine this case, presented as follows at a hearing:

Q: Did you make any threats or promises to the defendant?

A. No. I told him if he was honest, a judge might view that favorably, but that I didn’t know for sure what a judge would do.

Q. Did you offer to help him in any way if he confessed?

A. Only that I would testify honestly that he surrendered voluntarily to us and admitted what he did.

Q. Did you make any misrepresentations to him during questioning?

A. At one point, we told him that his answers to our questions tied him to some people we were investigating for murder. But we never told him we would charge him with murder. Actually, the whole point was to get him away from some lies he was telling us and to encourage him to tell the truth.

On those facts, I suspect that the trial judge would have denied the motion to suppress, and that ruling would have been affirmed on appeal. I’ll be interested to see whether this ruling is a harbinger of things to come as more and more interrogations are recorded.