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You’ve all heard the phrase “good cop-bad cop,” where during an interrogation of a suspect, one detective will play the nasty sonofabitch and the second will come to the rescue trying to get the same information with kindness and maybe a soft drink. In the relief of the moment after relentless tough and loud questioning by the bad cop, sometimes suspects will then confess or reveal information.

In State v. L.H., (A-59-17) recently decided by a split New Jersey Supreme Court, two detectives interrogating a suspect in three sexual assaults both played the “good cop.” They suggested that if the defendant cooperated and incriminated himself, he would receive counseling and help, not go to jail, and remain free to raise his own child. “The truth will set you free,” the detectives told him. When the detective said he needed to “hear your side of the story so I can find out exactly where you are as far as getting the help you need, the right help,” the suspect responded: “The help I need is not sending me to jail is it?” The detective replied, “Not at all, nobody gets rehabilitated in jail,” and his partner replied “Yeah, I agree.”

Moreover, the detectives continually minimized the nature of the assault and told the defendant he was a “good guy” and “didn’t hurt anyone.” After more than an hour of this (beginning about 2 a.m.), the soon-to-be-defendant began incriminating himself over the course of another two additional hours. Every time the defendant expressed hesitancy, the detectives talked about the help he would get outside of jail if he continued his story. And it was all on tape.

In New Jersey, due process requires that the state prove beyond a reasonable doubt that a defendant’s confession was voluntary. Confessions that are the product of physical or psychological coercion are presumed involuntary and inadmissible. This determination weighs the coercive psychological pressure on the suspect against the individual’s power to resist coercion, based on the totality of the circumstances and depending on the suspect’s age, education, intelligence, Miranda warnings, condition and length of detention and whether the suspect has been in that situation before.

There is a significant body of law on the voluntariness of confessions but here, the majority, led by Justice Barry Albin, determined that based on the behavior of the detectives, the totality of the evidence failed to demonstrate beyond a reasonable doubt that the confession was voluntary. While police can lie to a certain extent to reduce a suspect’s reluctance to confess, the majority pointed out, here the detectives could be heard directly contradicting their previous Miranda warnings, making promises of leniency by offering counseling instead of jail, promising the suspect would be out of jail with his child, made repeated statements minimizing what he had allegedly done at one point equating the suspect’s prospective counseling with counseling that one detective’s family member had received.

The Supreme Court majority said the trial court failed to consider these factors, referring to the detective’s ploy as “the good guy approach.” The defendant ultimately pleaded guilty but reserved the right to appeal. The Appellate Division then came down hard on the trial court, determining that the trial court “overlooked that the officers’ false promise of no incarceration directly negated the Miranda warnings and induced defendant to confess.” The Supreme Court upheld that position.

Justice Anne Patterson’s dissent takes the position that the trial court opinion was not given the substantial deference required by the law and the defendant conceded that in the end, the defendant controlled the flow of information in their exchange. The majority pointed out that a defendant’s incriminating remarks after his will is overborne are irrelevant to whether his will was overborne. “Statements made by defendant after the violation of his Fifth Amendment rights cannot repair the constitutional violation,” Justice Albin said. Interestingly, the court unanimously found that the identification of the defendant through a photo array violated rules set forth in a previous Supreme Court case and remanded the matter for a hearing on the suggestiveness of the identification process and determination of the appropriate violation for such a violation.

The crimes the defendant were charged with were heinous. But as we have repeatedly stated throughout the years, the rights of the accused—just as the rights of the victims—must be zealously guarded or any pretense of justice will be lost. The rules set forth by these many cases are out there for all detectives (and prosecutors) to read, but their understandable desperation to get an alleged rapist off the street is no excuse for trying new ways to avoid them.