Promises, Promises, Don't Make Promises

by Charles Gillingham

A recent California case, People v. Perez, 2016 DJDAR 349, addressed a situation where officers made promises of leniency to get a suspect to give a statement. Problems arise when officers make promises in order to get a suspect to make a statement, because suspect statements must be freely and voluntarily provided.


The Court of Appeal stated the facts in a homicide case regarding an interview as follows:

In this case, prior to a custodial interview a detective told Perez that he would question Perez and that there was no reason Perez wouldn't go home at the end. During the custodial interrogation of murder suspect Fabian Perez, a police sergeant told Perez that if he "[told] the truth" and was "honest," then, "we are not gonna charge you with anything." The sergeant continued, telling Perez that he was either a "suspect that we are gonna prosecute," or a "witness," and added that Perez had "witnessed something terrible that somebody did." The sergeant followed up this statement by telling Perez that if he was honest and told the truth during the interview, "[Y]ou'll have your life, maybe you'll go into the Marines . . . and you'll chalk this up to a very scary time in your life." The detective told Perez they weren't after him and that once he spoke it would be over for him. The detective again promised Perez that if he was honest he would not be charged.

Immediately thereafter, Perez stated that he had "some information" and, shortly after that, confessed his involvement in a robbery during which Perez's accomplice killed the victim." Perez said that he and a co-defendant planned to and did kill a taxi driver after luring the driver to their location. The co-defendant robbed and killed the taxi driver.

Perez was charged and convicted of first degree murder.


Defendant Perez was interviewed by officers and was made the above promises. After the interview, Perez got into a car with Detectives and showed them the route that he drove on the night of the murder. During the ride, Perez repeated his description of the events of the robbery and murder and explained the details of the crime as he had during his interview.

Perez argued that none of the statements were admissible against him as they were the product of coercion.


The Court held that the bald promise of leniency, that Perez would not be charged and would be going home if he told the truth rendered his confession involuntary.

The court found where a person in authority makes an express or clearly implied promise of leniency or advantage for the accused which is a motivating cause of the decision to confess, the confession is involuntary and inadmissible as a matter of law. The court cited the following cases People v. Vasila (1995) 38 Cal.App.4th 865, 875 concluding confession was involuntary where "defendant was given bald promises that, if he provided the necessary information, he would not be prosecuted federally and would be released from custody"; U.S. v. Lall(11th Cir. 2010) 607 F.3d 1277, 1287 ["It is inconceivable that [the defendant], an uncounseled twenty-year-old, understood at the time that a promise by [a police detective] that he was not going to pursue any charges did not preclude the use of the confession in a federal prosecution"]; compare with People v. Carrington(2009) 47 Cal.4th 145, 174 concluding confession was voluntary where "[t]he statements made by the officers did not imply that by cooperating and relating what actually happened, defendant might not be charged with, prosecuted for, or convicted of the murder."