You need not have personal experience with police interrogation in order to be familiar with a common tactic employed by the police. An episode or two of a reality-television “cop” show should suffice. Often, the police will suggest that it is in the suspect’s best interest to speak with them. Statements such as, “I’m trying to help you here, but I need you to be honest with me,” and, “help yourself out here and be truthful with me,” are commonplace. But how far can the police go in suggesting that an individual should speak with them about a crime under investigation?

In 2018 in Commonwealth of Massachusetts v. Rivers, the Appeals Court held that a defendant’s noncustodial inculpatory statements to the police must be suppressed because the police officer made certain assurances that the defendant’s cooperation would aid his defense or lessen his sentence.

With regard to statements (admissions) made in response to police questioning, it is axiomatic that the statements must have been made voluntarily. That means more than simply intentionally made. The test for voluntariness of a defendant’s statement is “whether, in light of the totality of the circumstances surrounding the making of the statement, the will of the defendant was overborne to the extent that the statement was not the result of a free and voluntary act.”

Factors relevant to the totality of the circumstances include whether promises or other inducements were made to the defendant by the police, as well as the defendant’s age, education, and intelligence; experience with the criminal justice system; and his physical and mental condition, including whether the defendant was under the influence of drugs or alcohol. It is the Commonwealth that bears the burden of proving, beyond a reasonable doubt, that the defendant’s statements were made voluntarily.

Regarding whether implied promises of leniency were likely to have affected the voluntariness of a defendant’s statements, the touchstone is whether the police assured the defendant that his or her confession would aid his or her defense or result in a lesser sentence. An officer may suggest broadly that it would be “better” for a suspect to tell the truth, may indicate that the person’s cooperation would be brought to the attention of the public officials or others involved, or may state in general terms that cooperation has been considered favorably by the courts in the past.

In Rivers, the Appeals Court found that the police officer’s conversation with the defendant — including telling him that coming forward would make him “very highly likely to avoid being charged with a felony” — amounted to a prohibited assurance that it would aid his defense or lessen his sentence if he cooperated with police.

The Appeals Court noted that certain factors supported a conclusion that the statements were in fact voluntary, e.g., the interviews with the police were not aggressive or coercive in nature, and the defendant was clear and articulate in the interviews, appeared well oriented as to time and place, and showed a full understanding of the process taking place.

Considering the totality of the circumstances, the Appeals Court held that Commonwealth did not meet its burden to prove beyond a reasonable doubt that the defendant made his statements voluntarily.

A subsequent 2018 case, Commonwealth v. Montanez, came to a different conclusion in a case in which the police told the defendant that he would not be arrested that night if he spoke truthfully. That was held to be permissible under the circumstances: “an officer is not prohibited from suggesting broadly that it would be ‘better’ for a suspect to tell the truth.”

Nothing in recent case law suggests any change is warranted in the advice oft-given by competent criminal defense attorneys, namely: do not be interviewed by the police without first consulting with an attorney.

Attorney Kevin D. Quinlan
The Law Office of Kevin D. Quinlan
2 South Main Street, Suite 201
P.O. Box 248
Uxbridge, MA 01569
(508) 723-6384