Legal Considerations When Asking an Alternative Question
An investigator is asking a great deal from a guilty suspect to confess to a crime which may potentially involve substantial punishment. For this reason, the suspect must be allowed to make his first admission of guilt with as few words as possible and also in a way that allows him to save face. In the Reid Nine Steps of Interrogation, this is done by asking an alternative question.
An alternative question is one in which the suspect is offered two incriminating choices concerning some aspect of the crime. As an example, in a theft case a suspect may be asked the following alternative question;“Did you take that money and blow it on drugs and booze or did you need it to help pay bills? It was to help pay bills, wasn’t it?” If the suspect nods his head in agreement with the investigator’s question, the ice has been broken to obtain a fully corroborated confession. Of course, other than accepting the two alternative choices presented by the investigator, every suspect has a third option which is to say that neither choice is true.
There are a number of skills involved in presenting an alternative question during an interrogation. These include selecting the proper question, asking the question at the proper time, and asking it in the proper way. Of paramount importance, however, is that the alternative question must be phrased in a legally acceptable manner. In essence, a properly formulated alternative question must not offer a promise of leniency to the suspect nor threaten the suspect with inevitable consequences. When presenting an alternative question the following guidelines should be followed:
(1) The alternative question should not make any mention of legal charges
An alternative question that violates this guideline, and is therefore improper, is,“Did you plan on killing her, in which case it will mean first degree murder and life in prison, or did this just happen in the heat of passion which would just be manslaughter?” This suspect is essentially being told that he will face reduced charges if he confesses to manslaughter rather than first degree murder. A proper alternative question to ask in this case is, “Did you plan on doing this since the day you got married or did it pretty much happen on the spur of the moment because of the fight you had?” With this latter question, no mention whatsoever of a possible consequence is made.
(2) The alternative question should not threaten inevitable consequences
A suspect must be able to reject both sides of an alternative question without fear of facing adverse real consequences because of that decision. During an interrogation these negative consequences are often presented as a threat of inevitable consequences, e.g., confess to me or suffer this negative consequence. An improper alternative question that threatens inevitable consequences in a non-custodial interrogation is, “Do you want to cooperate with me and confess or do you want me to lock you in jail where you can sit for the next two or three days?” The choice this suspect faces is to either confess or lose his freedom; he is not being offered the choice of rejecting both sides of the alternative question without facing a real negative consequences. A proper alternative question to consider in this case may be, “Are you sorry this happened or don’t you care?”
Another example of an improper alternative question that threatens an inevitable consequence is, “If you don’t tell me about the sexual contact you had with your daughter your kids will be taken away and you will never see them again.” One of the guidelines governing confession admissibility is that the confession must be essentially the product of the suspect’s free will. When the impetus for confessing is to avoid a jail cell or to be able to see one’s children, the statement is clearly the result of compulsion. A good rule to follow in this regard is to use alternative choices that address some aspect of the crime, e.g., “Did you force your daughter to touch your bare penis or did she do it on her own?”
(3) The alternative question should not offer a promise of leniency
Courts have consistently ruled that a confession obtained in conjunction with a promise of leniency was improperly obtained. Therefore, the following alternative question is improper: “If you’ve done this dozens of times before, that’s one thing. But, if this was just the first time it happened I can explain that to the prosecutor and work out a deal for you.” Not only is it psychologically improper to bring up legal terminology during an interrogation (possible charges, the judge or prosecutor), but the mere mention of legal issues may invite a claim of an actual or perceived promise of leniency. A proper way to ask the previous alternative question is, “If you’ve done this dozens of times before that’s one thing. But if this was just the first time it happened that would be important to establish.”
In conclusion, the use of an alternative question to obtain the first admission of guilt during an interrogation often makes the difference between a successful or unsuccessful interrogation. However, an improperly asked alternative question may also cause an otherwise voluntary confession to be challenged during a suppression hearing. The choices presented to a suspect should not offer a promise of leniency in exchange for a confession nor threaten inevitable consequences if the suspect chooses not to confess. Furthermore, the alternative question should avoid mention of legal consequences such as possible charges, length of sentence, or a jury’s perception of the suspect’s crime.