Officers' Statements to Suspects

Officers' Statements to Suspects

What Officers Can Tell Custodial Subjects About Making Their Cooperation Known to Prosecutors

by Robert T. Thetford, JD

The scene is a familiar one to officers who interview suspects on a regular basis. After being arrested and advised of his Miranda rights, the suspect says, "If I talk to you, will you speak to the DA for me?" How should the officer then proceed? Alabama has some new law in this area which should make most officers more effective in interviewing suspects.

In McLeod v. State, The Alabama Court of Criminal Appeals had previously held that a murder suspect's confession was inadmissible because it had been obtained through a "bargain with" the officer.(1) The officer testified that he did not offer McLeod any hope of immunity for his statement, but did tell McLeod that if he wanted to cooperate, the officer would "make his cooperation known to the District Attorney and to the Court." The Appellate Court held that the statement was a bargain with McLeod and therefore the confession obtained was improperly induced by an implied promise of leniency.

The Alabama Supreme Court recently reversed this case and rejected the "bargain with" test.(2) In its place, the Court applied the "overborne" test used by the federal courts,(3) which is an application of the totality of the circumstances test to determine if any implied promise of leniency "overbore the will of the defendant." In other words, the test is not whether the defendant bargained with the police, but whether in the interview (which may have included some bargaining), the defendant's will was overborne by "apprehension of harm or hope of favor."

In a similar case decided in March, 1998,(4) the Alabama Supreme Court, in allowing he suspect's statement, applied the "overborne" test to a murder case in which the officer testified that he, in essence, told the suspect that the officer would tell the District Attorney if the suspect cooperated. He also told the suspect that if someone else pulled the trigger, the suspect might want to tell his side of the story. The suspect then described the shooting as an accident but admitted taking the victim's property following the shooting.

It seems clear, then, that in most interrogations Alabama officers may advise suspects that any cooperation will be made known to the District Attorney. The courts, however, will examine the entire circumstances surrounding the arrest and interrogation to make the determination of whether or not the suspect's will was overborne. Proper execution of the rights form, any display of force or intimidation, the interview length, the suspect's mental capacity, his prior experience with the criminal justice system and any sleep or food deprivation are examples of factors which will be closely scrutinized to determine whether his will was overborne. This has been restated in a recent ruling by the Alabama Court of Criminal Appeals.(5)

Conclusion: The recent adoption of the "overborne" test will definitely assist officers in obtaining admissible statements by advising subjects that any cooperation will be made known to the prosecutor. The subject should be advised further that the officer has no authority to make a "deal," as this is completely the prosecutor's decision. Officers are cautioned, however, to be careful in structuring the interrogation because the courts will be examining all of the circumstances surrounding the confession.

For this reason, details of the circumstances should be preserved in some manner of log or journal to bolster the officer's testimony and demonstrate the voluntary nature of the confession. The log should include at least the following items:

Time Miranda rights read.

Time waiver signed.

Date and time interview began.

Date and time interview ended.

Notation and time of any breaks in interview and reasons (food, bathroom, etc.).

Any other factors which might indicate that the suspect's will is or is not being "overborne."

Footnotes

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1. McLeod v. State [Ms. CR-95-1280 October 11, 1996] __So. 2d __ (Ala. 1996).

2. Ex Parte State (In re: Leon McLeod, Jr. v. State). Case Num. 1960538 (Sup. Ct. Ala., January 16, 1998).

3. Arizona v. Fulminante, 499 U.S. 279, 111 S. Ct. 1246 (1991).

4. Craig v. State, [6 ALW 36-5] (Sup. Ct. Ala., March 6, 1998).

5. Smith v. State , 2000 WL 681033, Ala.Crim.App May 26, 2000 (NO. CR-98-0206)