Rebecca Talbott (University of San Diego School of Law) has posted Implied Promises in Police Interrogation on SSRN. Here is the abstract:
The Fifth Amendment to the Constitution prevents the police from using so-called promises of leniency to induce suspects to confess to crimes. However, lower courts have increasingly accepted the view that “implied” promises of leniency — suggestions by a police officer that a suspect’s access to leniency hinges on confessing, without overtly promising any particular outcome — raise no constitutional concern. Police regularly exploit this loophole by extracting confessions through implying to suspects that the only way they can avoid a crushing criminal penalty is to confess, without promising any specific outcome in exchange. The tactic is effective, and not just with the guilty; indeed, exoneration records reveal that many innocent suspects falsely confessed in response to messages of conditional leniency that did not promise any explicit outcome.
This Article is the first to analyze the constitutionality of implied promises of leniency. Drawing on text, founding-era history, precedent, social science research, and conceptual reasoning, it demonstrates that every primary constitutional interpretive modality supports treating implied promises as just as unconstitutionally coercive as explicit ones, so long as the officer objectively communicates that access to leniency is conditional on confessing. Implementing this insight in the courtroom would restore fidelity to longstanding constitutional principles while surfacing a pervasive and pernicious police practice that often evades judicial scrutiny.
Highly recommended.