Four Hours Without a Caution
Police arrest Leo Marsh for shoplifting a $60 jacket. At the station, Detective Orr questions him for four hours without caution about the shoplifting. Leo initially denies it. Orr then says, 'If you tell me about the robbery at the gas station last week, I can make the shoplifting go away.' Leo confesses to the armed robbery and says the gun is in his cousin's garage. Police find the gun and a mask there. Leo is charged with armed robbery. The interview room was hot, Leo had not eaten for eight hours, and he asked for a lawyer twice; Orr said, 'You can call one after we finish.' Leo has an IQ of 72 and a reading age of 9. The prosecution argues the confession is voluntary and, in any event, the gun would have been found inevitably. The defence seeks exclusion of the confession and the gun.
1. Was Leo's confession voluntary? Address the caution, the inducement, his requests for counsel, and his vulnerability.
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Voluntariness asks whether the confession was obtained by oppression or by an inducement that could make it unreliable. Four hours of questioning without a caution, a hot room, eight hours without food, an IQ of 72, and a reading age of 9 all point toward vulnerability. The detective's offer-'I can make the shoplifting go away'-is a direct inducement: it promises a benefit in exchange for the robbery confession. The two requests for counsel were not honoured; telling Leo he can call a lawyer 'after we finish' is not a meaningful caution. The absence of a caution also deprives the prosecution of proof that Leo knew of his right to silence. The judge should hold a voire dire and consider the totality. The confession is likely involuntary and should be excluded. Even if the judge finds it voluntary, the discretion to exclude for unfairness is strong because the inducement and the denial of counsel make the confession unreliable.
2. If the confession is excluded, should the judge also exclude the gun and mask? Explain the derivative evidence analysis and the inevitable discovery argument.
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Excluding the confession does not automatically exclude the gun and mask. The derivative-evidence question is whether the police discovered the physical evidence by exploiting the involuntary confession. Here the only lead to the cousin's garage was Leo's confession. There is no independent source in the facts. The inevitable-discovery exception requires the prosecution to prove, by a preponderance, that the police would have found the gun through lawful means anyway. That is speculative on these facts. The judge should exclude the gun and mask unless the prosecution shows an independent lawful lead-for example, a tip unrelated to the confession or a lawful search of the garage. The gun is physical evidence, but its connection to Leo depends on the tainted confession. The judge should also consider whether the cousin's consent was voluntary. If the police acted on the confession, the taint is not purged.
3. What directions should the judge give the jury if the confession is admitted but the gun is excluded? Can the jury use the confession alone?
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If the confession is admitted, the jury must be directed to decide whether it is truthful and voluntary. A confession alone can support a conviction, but the judge should warn the jury about the lack of corroboration, especially given Leo's low IQ and the inducement. The jury must not speculate about the excluded gun. If the gun was mentioned in evidence before exclusion, the judge must give a strong limiting instruction to disregard it. The judge should explain that the offer to 'make the shoplifting go away' and the refusal to allow counsel affect the weight of the confession. If the prosecution cannot corroborate the confession, the jury should be told to scrutinise it with special care. The judge may also comment on the evidence, but must leave the final decision to the jury.