                                       SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.

                            State v. L.H. (A-59-17) (079974)

Argued March 11, 2019 -- July 22, 2019

ALBIN, J., writing for the Court.

        The primary issue in this appeal is whether the interrogation techniques that
included false promises of leniency induced defendant L.H. to confess to two alleged
sexual assaults and one alleged attempted sexual assault and overbore defendant’s will.
In this context, the Court must determine whether the State proved beyond a reasonable
doubt that, under the totality of the circumstances, defendant’s confession was voluntary.
The Court also considers whether a remand is necessary because, when M.H., a victim,
identified defendant from a photographic lineup, the full dialogue between M.H. and the
administering officer in making the identification was not memorialized.

        Defendant, who was suspected of committing the alleged offenses, was stopped
and brought to the Bloomfield police headquarters on August 6, 2011, at about 2:30 a.m.
After being held for three hours, he was brought to an interview room. For the first fifty-
five minutes, Detective Lieutenant Joseph Krentz and Detective Thomas Fano secured
information from defendant about his education, employment, prior residences, family,
and his reason for driving in Bloomfield that evening. Almost an hour into the
interrogation, Detective Fano told defendant that he had a “problem.” For the next
twenty minutes, while defendant deflected questions that would have implicated him in a
crime, the two detectives suggested that, if defendant cooperated and incriminated
himself, he would receive counseling and help, not go to jail, and remain free to raise his
child. Indeed, defendant was told that the truth would set him free. The detectives’
assurances and suggestions that defendant would receive help and counseling, stay out of
jail, and be there for his daughter if he cooperated were aimed at assuaging the reluctance
defendant repeatedly expressed about giving up the right to remain silent.

        For example, Detective Krentz stated, “I just need 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.”
Defendant asked, “The help I need is not sending me to jail is it?” Detective Krentz:
“Not at all. Nobody gets rehabilitated in jail.” Detective Fano: “Yeah, I agree.” The
detectives, moreover, continually minimized the nature of the assaults of which defendant
was suspected, telling him, “You’re not a bad guy,” and “You didn’t hurt anybody.”


                                             1
       One hour and fourteen minutes into the interrogation, defendant began to make
admissions about his involvement in the charged offenses. The interrogation ended at
8:51 a.m. -- more than three hours after it had begun. In his testimony at the hearing,
Detective Krentz conceded that “[e]very time [defendant] expressed hesitancy, [the
detectives] talked about the help he was going to get,” and that “it was clear . . . that
‘help’ meant counseling.” The trial court rejected defendant’s argument that his will was
overborne by false promises and declined to suppress his confession.

       Defendant also moved for an evidentiary hearing because of the failure of the
police to record, electronically or otherwise, the identification procedure that led to M.H.
identifying defendant as her assailant. During the fourteen earlier identification
procedures, M.H. was unable to make a positive identification of her assailant. On
August 8, 2011, two days after defendant’s arrest, M.H. viewed a fifteenth photographic
array. In the report from that identification, the position of each photograph is given a
sequential number from one to six. Next to photo position number three -- designating
defendant’s photograph -- is the word “SUSPECT.” The report does not explain why the
word “SUSPECT” was used rather than the six-digit number and letter assigned to every
other photograph.

       The trial court denied defendant’s motion for a hearing, and defendant entered
guilty pleas to five counts in the indictment, preserving his right to appeal the denial of
both his motion to suppress his confession and his motion for an evidentiary hearing. In
an unpublished opinion, the Appellate Division reversed the trial court, vacating
defendant’s convictions and remanding for further proceedings. The Court granted the
State’s petition for certification. 233 N.J. 24 (2018).

HELD: The State failed to prove beyond a reasonable doubt that, under the totality of
the circumstances, defendant’s statement was voluntary. Defendant may withdraw his
guilty plea. The failure to record the identification procedure as required by Delgado
requires a remand to allow defendant the benefit of a hearing to inquire into the reliability
of the identification and any other remedy deemed appropriate by the trial court.

1. Due process requires that the State prove beyond a reasonable doubt that a defendant’s
confession was voluntary and was not made because the defendant’s will was overborne.
A confession which is the product of physical or psychological coercion must be
considered to be involuntary and is inadmissible in evidence regardless of its truth or
falsity. The voluntariness determination weighs the coercive psychological pressures
brought to bear on an individual to speak against his power to resist confessing. Relevant
factors include the suspect’s age, education and intelligence, advice concerning
constitutional rights, length of detention, whether the questioning was repeated and
prolonged in nature, and whether physical punishment and mental exhaustion were
involved, as well as previous encounters with law enforcement. The ultimate
determination of voluntariness depends on the totality of the circumstances. (pp. 22-26)
                                             2
2. Because a suspect will have a natural reluctance to furnish details implicating himself,
an interrogating officer may attempt to dissipate this reluctance and may even tell some
lies during an interrogation. Certain lies, however, may have the capacity to overbear a
suspect’s will and to render a confession involuntary. Thus, a police officer cannot
directly or by implication tell a suspect that his statements will not be used against him
because to do so is in clear contravention of the Miranda warnings. Other impermissible
lies are false promises of leniency that, under the totality of circumstances, have the
capacity to overbear a suspect’s will. A court may conclude that a defendant’s
confession was involuntary if interrogating officers extended a promise so enticing as to
induce that confession. (pp. 26-30)

3. The video-recorded interrogation here reveals that the detectives made (1)
representations that directly conflicted with the Miranda warnings, (2) promises of
leniency by offering counseling as a substitute for jail, and (3) statements that minimized
the seriousness of the crimes under investigation -- all relevant factors under the totality-
of-the-circumstances test. In the totality of the circumstances, given the combination of
all the relevant evidence and factors, the State failed to show beyond a reasonable doubt
that the interrogators’ representations to defendant did not overbear his will and induce
him to confess. The detectives secured an involuntary confession. Because defendant
preserved his right to appeal the denial of his motion to suppress the confession,
defendant’s guilty plea must be vacated. (pp. 30-39)

4. In State v. Delgado, the Court required that “law enforcement officers make a written
record detailing the out-of-court identification procedure, including the place where the
procedure was conducted, the dialogue between the witness and the interlocutor, and the
results.” 188 N.J. 48, 63 (2006). The Court instructed that “[w]hen feasible, a verbatim
account of any exchange between the law enforcement officer and witness should be
reduced to writing,” and “[w]hen not feasible, a detailed summary of the identification
should be prepared.” Ibid. Without issuing a mandate, the Court added that “electronic
recordation is advisable.” Ibid. (pp. 39-40)

5. Here, Detective Michael Ruggiero, who administered the photographic array, did not
electronically record the identification procedure or make a “verbatim account” of the
words exchanged between him and the witness. Nor is there any explanation why he did
not do so. The failure to abide by the dictates of Delgado is all the more inexplicable
because the identification procedure was prearranged and occurred during normal
operating hours at police headquarters, where undoubtedly electronic recording devices
were available. The evidentiary hearing requested by defendant would have provided
defendant the opportunity to attempt to secure the information denied to him by the
Delgado violation. Accordingly, the Court remands for an evidentiary hearing to explore
the issue of suggestiveness in the identification process and for the determination of an
appropriate remedy for the Delgado violation, which may include a jury charge on the
State’s failure to follow the recordation procedures set forth in Delgado. (pp. 40-43)
                                              3
       The judgment of the Appellate Division is affirmed.

        JUSTICE PATTERSON, concurring in part and dissenting in part, concurs
with the majority and the Appellate Division that the procedure used by police officers in
connection with defendant’s identification by M.H. did not comport with Delgado and
that a remand is needed so that the trial court may decide whether the identification
procedure entailed suggestiveness and, if necessary, impose an appropriate remedy.
Justice Patterson does not agree, however, that defendant’s confession should be
suppressed, stressing that the trial court denied defendant’s motion to suppress after it
reviewed the videotape of defendant’s confession and other evidence presented, made
detailed factual findings, and concluded that the State had met its burden to prove beyond
a reasonable doubt that the confession was voluntary. In Justice Patterson’s view, neither
the Appellate Division nor the majority afforded the trial court’s findings the substantial
deference to which they are entitled. Although a portion of the interrogation crossed the
line between proper and improper police tactics, Justice Patterson explains, the trial
court’s finding that defendant’s confession was voluntary was supported by sufficient
credible evidence in the record, including the videotape.

JUSTICES LaVECCHIA, FERNANDEZ-VINA, and TIMPONE join in JUSTICE
ALBIN’s opinion. JUSTICE PATTERSON filed an opinion -- concurring in the
remand for an evidentiary hearing as to the identification procedure and dissenting
from the suppression of defendant’s confession -- in which CHIEF JUSTICE
RABNER and JUSTICE SOLOMON join.




                                            4
       SUPREME COURT OF NEW JERSEY
           A-59 September Term 2017
                    079974

                 State of New Jersey,

                 Plaintiff-Appellant,

                          v.

                        L.H.,

               Defendant-Respondent.

        On certification to the Superior Court,
                  Appellate Division.

      Argued                         Decided
   March 11, 2019                 July 22, 2019


Kayla Elizabeth Rowe, Deputy Attorney General, argued
the cause for appellant (Gurbir S. Grewal, Attorney
General, attorney; Kayla Elizabeth Rowe, of counsel and
on the briefs).

Alicia J. Hubbard, Assistant Deputy Public Defender,
argued the cause for respondent (Joseph E. Krakora,
Public Defender, attorney; Alicia J. Hubbard, of counsel
and on the briefs).

Farbod K. Faraji argued the cause for amicus curiae
American Civil Liberties Union of New Jersey (Gibbons,
and American Civil Liberties Union of New Jersey
Foundation, attorneys; Farbod K. Faraji, Lawrence S.
Lustberg, and Alexander Shalom, on the brief).

Richard P. Lomurro argued the cause for amicus curiae
Association of Criminal Defense Lawyers of New Jersey

                          1
            (Lomurro, Munson, Comer, Brown & Schottland,
            attorneys; Richard P. Lomurro, of counsel and Christina
            Vassiliou Harvey, of counsel and on the brief).


             JUSTICE ALBIN delivered the opinion of the Court.


      No piece of evidence may have greater sway over a jury than a

defendant’s confession. For that reason, it is of critical importance that law

enforcement officers use interrogation techniques that will elicit confessions

by lawful means.

      To ensure that law enforcement officers turn square corners, New

Jersey’s jurisprudence requires that the State “prove the voluntariness of a

confession beyond a reasonable doubt.” State v. Galloway, 133 N.J. 631, 654

(1993). In their gatekeeping roles, our courts are charged with admitting into

evidence only lawfully secured confessions. False promises of leniency --

promises “so enticing” that they induce a suspect to confess -- have the

capacity to overbear a suspect’s will and to render the confession involuntary

and inadmissible. See State v. Hreha, 217 N.J. 368, 383 (2014).

      The primary issue in this appeal is whether the interrogation techniques

that induced defendant L.H. to confess crossed the forbidden line drawn by our

case law.




                                        2
       In this case, the police took defendant into custody on suspicion that he

had sexually assaulted two women and attempted to sexually assault another

woman. During an interrogation that lasted approximately three hours, the two

interrogating detectives repeatedly promised defendant counseling, indicating

that he would not go to jail if he cooperated. The detectives also told

defendant that “the truth would set him free” -- advice seemingly at odds with

the Miranda 1 warning given to defendant that anything he said could be used

against him. More than an hour into the interrogation, defendant made

incriminating statements that implicated him in all three crimes. He was

arrested and criminally charged.

       Two days later, one of the victims, while viewing a photographic lineup,

identified defendant as her assailant. The officer conducting the identification

did not record the full dialogue between him and the victim, or the degree of

confidence expressed by the victim in making the identification. Defendant

claimed that the failure to memorialize the identification procedure violated

State v. Delgado, 188 N.J. 48 (2006).

       In pretrial hearings, the trial court determined that defendant’s

confession and the victim’s identification were admissible. The court

determined that the interrogating detectives did not overbear defendant’s will


1
    Miranda v. Arizona, 384 U.S. 436 (1966).

                                         3
and that defendant made a voluntary confession. The court also determined

that defendant failed to show that the identification procedure was suggestive,

entitling him to a Wade 2 hearing, or that the recordation of that procedure

violated the law. After the pretrial hearings, defendant pled guilty to various

offenses but preserved his right to appeal the trial court’s evidentiary

decisions.

       The Appellate Division reversed. It held that the State failed to prove

the voluntariness of the confession, finding that the detectives made false

promises that overbore defendant’s will. It also remanded to the trial court for

an evidentiary hearing to decide whether the identification procedure complied

with Delgado and, if not, to consider the admissibility of the out-of-court

identification and an appropriate remedy.

       We affirm. We hold that the State failed to prove beyond a reasonable

doubt that, under the totality of the circumstances, defendant’s statement was

voluntary. Based on that standard, the detectives overbore defendant’s will by

false promises of leniency that assured counseling instead of incarceration, by

representations that conflicted with the Miranda warnings, and by

minimization of the gravity of the offenses. Defendant therefore may

withdraw his guilty plea. Moreover, the failure to record the identification


2
    United States v. Wade, 388 U.S. 218 (1967).

                                        4
procedure as required by Delgado requires a remand to allow defendant the

benefit of both a Wade hearing to inquire into the reliability of the

identification and any other remedy deemed appropriate by the trial court. We

remand for proceedings consistent with this opinion.

                                        I.

                                        A.

      On May 29, 2012, an Essex County grand jury returned a twelve-count

indictment, charging defendant with first-degree kidnapping of M.H. and A.D.,

N.J.S.A. 2C:13-1(b)(1) (two counts); first-degree aggravated sexual assault of

M.H. and A.D., N.J.S.A. 2C:14-2(a)(3) (four counts); second-degree

aggravated assault of M.H. and A.D., N.J.S.A. 2C:12-1(b)(1) (three counts);

first-degree attempted aggravated sexual assault of V.B., N.J.S.A. 2C:5-1 and

N.J.S.A. 2C:14-2(a)(3) (one count); and third-degree terroristic threats to M.H.

and A.D., N.J.S.A. 2C:12-3(a) (two counts). The indictment alleged that

defendant sexually assaulted M.H. on June 18, 2011 and A.D. on July 23, 2011

in Bloomfield Township and attempted to sexually assault V.B. on August 4,

2011 in Belleville Township.

      Defendant moved to suppress the confession he made during an

interrogation conducted by Detective Lieutenant Joseph Krentz and Detective

Thomas Fano of the Bloomfield Police Department. Defendant argued that the



                                        5
detectives induced his confession by making false promises that he would not

face jail time, thus overbearing his will and rendering his confession

involuntary.

      The trial court held a two-day Miranda hearing to determine the

admissibility of the confession. During the State’s presentation, Detective

Krentz testified and the video-recorded interrogation was admitted into

evidence. We discern the following facts from that record.

      On August 6, 2011, at about 2:30 a.m., a task force of law enforcement

officers from the Bloomfield and Belleville police departments and the Essex

County Prosecutor’s Office, investigating the recent sexual assaults of women,

stopped a motor vehicle in Bloomfield driven by defendant, who was

suspected of committing the offenses. Detective Krentz directed a patrol

officer to transport defendant to Bloomfield police headquarters.

      For approximately three hours at headquarters, defendant remained

either handcuffed in a room or confined in a cell. Then, at 5:31 a.m.,

Detectives Krentz and Fano led defendant into an interview room, where the

detectives sat on the opposite side of a desk from defendant.

      Detective Fano read defendant the Miranda warnings, advising him that

he had a right to remain silent and to have an attorney present, and that

anything he said could “be used against [him] in [a] court of law.” Defendant



                                        6
signed the waiver-of-rights form. When defendant asked why he was being

detained, Detective Fano responded that they would “get to that” after they

asked “a couple of basic questions,” adding, “you are here for a reason. . . .

We didn’t pick you out of the tree.”

      For the first fifty-five minutes, the detectives secured information from

defendant about his education, employment, prior residences, family, and his

reason for driving in Bloomfield that evening. They learned that defendant

was a high school graduate with several years of college credits and that he

had a young daughter with a former girlfriend. They also learned that

defendant had been convicted of a sexually related offense as a result of a

claimed consensual relationship with a sixteen-year-old female when he was

twenty-one or twenty-two years old and that he was a registered sex offender.

      The detectives at first made no headway with defendant when inquiring

about his movements in Bloomfield several evenings earlier. The interrogation

began in earnest when defendant denied having any familiarity with Franklin

Street -- the site of two sexual assaults against M.H. and A.D.

      Almost an hour into the interrogation, Detective Fano announced that

they had been watching him, and did not “want to pussyfoot with [him].” The

detective reminded defendant that, when arrested, he was wearing gloves, his

pants were open, and condoms were found in his car. Detective Fano then told



                                        7
defendant that he had a “problem.” For the next twenty minutes, while

defendant deflected questions that would have implicated him in a crime, the

two detectives suggested that, if defendant cooperated and incriminated

himself, he would receive counseling and help, not go to jail, and remain free

to raise his child. Indeed, defendant was told that the truth would set him free.

      The promises of “help” and “counseling” became a consistent theme of

the interrogation:

            [Detective Krentz]: We want to get you the help that
            you need.

            [Detective Fano]: You need some help, dude. You got
            a problem.

            [Detective Krentz]: We want to make sure you get the
            right help.

            [Detective Fano]: We’re here to help you.

      The detectives stayed on theme, repeatedly telling defendant that they

would get him the help he needed for his problem if he cooperated. A few

examples will suffice: “I want to get you the help that you need”; “I know

with the right help . . . you’ll be fine down the road”; “we’re also trying to

help you rebuild for the future.”

      The detectives made clear that defendant had to be honest to receive

counseling and help -- and to remain free to raise his child:




                                        8
            [Detective Fano]: [W]e’re gonna help you out. You
            need some counseling.      You need some more
            counseling.

            [Detective Krentz]: And we’re willing to get you the
            help that you need.

            ....

            [Detective Krentz]: So we’re willing to get you the
            help that you need but you gotta be honest.

            [Detective Fano]: You gotta be honest.

            [Detective Krentz]: You gotta be honest.

            ....

            [Detective Fano]: Think about your daughter. I want
            you to be there to raise her. . . . ’Cause women need
            guidance from a guy.

            ....

            [Detective Fano]: [The truth is] going to set you free.
            The truth -- and it is a true saying, the truth will set you
            free.

            [(emphases added).]

      Detective Krentz allayed concerns raised by defendant about whether his

cooperation would lead to his immediate incarceration because, as defendant

told the detectives, in his last experience with the criminal justice system, after

he told “the truth” to the police during an interrogation, he was put in jail:

            [Defendant]: [I] told them the truth and I told them
            exactly what -- what happened, it happened that quick.

                                         9
            [Detective Fano]: Well, that’s not gonna happen -- it’s
            not gonna go down like that. It’s not gonna --

            [Detective Krentz]: Look at me. Look at me. . . . If
            I’m gonna lock you up, I’m gonna tell you I’m gonna
            lock you up. I’m not gonna bullshit you.

      The detectives reassured defendant he was not facing jail:

            [Defendant]: Am I going to jail tonight? Is this going
            to be my last meal or something like that?

            [Detective Krentz]: No, no, not at all.

            [Defendant]: That’s what everybody says and then --

            [Detective Krentz]: That’s TV bullshit, dude. That’s
            TV.

      The detectives’ assurances and suggestions that defendant would receive

help and counseling, stay out of jail, and be there for his daughter if he

cooperated were aimed at assuaging the reluctance defendant repeatedly

expressed about giving up the right to remain silent:

            [Defendant]: I’m not trying to dig myself in a hole.

            ....

            [Defendant]: I just don’t want to jeopardize all the
            stuff that I’ve been trying to rebuild --

            [Detective Fano]: We understand. Rebuild. . . . We
            want you to get more counseling so you can continue.

            ....



                                        10
[Defendant]: What I’m trying to say is that I can’t
afford to stop my -- my working -- I can’t afford to stop
seeing my daughter.

[Detective Fano]: Your life. I understand that.

[Defendant]: Or being in . . . .

[Detective Fano]: Right. That’s why we’re trying to
talk to you. That’s why we’re trying to talk to you
because of your daughter.

....

[Defendant]: I just feel like I’m shooting myself in the
foot right now. I feel like -- I --

[Detective Krentz]: Do you want help?

....

[Detective Krentz]: I just need 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.

[Defendant]: The help I need is not sending me to jail
is it?

[Detective Krentz]:      Not at all.      Nobody gets
rehabilitated in jail.

[Detective Fano]: Yeah, I agree.

[Detective Krentz]: Nobody gets rehabilitated in --

[Detective Fano]: Dude, you got a little -- you got a
baby daughter, you want to be around.




                           11
      The detectives, moreover, continually minimized the nature of the sexual

assaults defendant was suspected of committing:

            [Detective Krentz]: [Y]ou’re not a bad guy.

            ....

            [Detective Krentz]: You didn’t hurt anybody -- look at
            me, you didn’t hurt anybody.

            [Detective Fano]: Okay. You didn’t hurt anybody.

            [Detective Krentz]: I know you’re not a bad guy. You
            didn’t hurt anybody.

            ....

            [Detective Fano]: I know you’re not a bad person . . . .
            You don’t hurt them.

            ....

            [Detective Krentz]: [Y]ou didn’t rob them. . . . You
            didn’t beat them up. You treated them with respect,
            you treated them okay.

      One hour and fourteen minutes into the interrogation, defendant began to

make admissions about his involvement in the sexual assaults of M.H. and

A.D. and the attempted sexual assault of V.B. The interrogation ended at 8:51

a.m. -- more than three hours after it had begun.

      In his testimony at the Miranda hearing, Detective Krentz conceded that

“[e]very time [defendant] expressed hesitancy, [the detectives] talked about the




                                       12
help he was going to get,” and that “it was clear . . . that ‘help’ meant

counseling.”

                                        B.

      The trial court rejected defendant’s argument that his will was overborne

by false promises that, if he cooperated, he would not go to jail and instead

receive help in the form of counseling. The court determined that “it is clear

from the totality of the circumstances that the defendant’s confession was

knowing, voluntary and not the product of improper police procedure and/or

misconduct.” The court observed that the “good guy approach” is a

permissible interrogation technique and that an interrogator’s “sympathetic

attitude . . . is not in and of itself enough to render a confession involuntary.”

The court found that defendant’s “retelling of his version of the attacks,”

including minimizing his role, clearly shows that he was not “compelled to

provide information . . . based upon the promises made by the detectives of

help not jail.” The voluntariness of defendant’s confession was supported, in

the court’s view, by such factors as defendant’s age, his college education, his

previous conviction of a sex offense, and his prior experience in the criminal

justice system in which the incriminating statement he made to the police was




                                        13
what “caused him to end up in jail.” 3 The court acknowledged that although

“the defendant may have been induced to speak by the detectives’ tactics and

demeanor, those inducements do not culminate in his will being overborne.”

                                        C.

      Defendant also moved for an evidentiary hearing because of the failure

of the Bloomfield police to record, electronically or otherwise, the

identification procedure that led to M.H. identifying defendant as her assailant.

In particular, defendant claimed that the police failed to preserve the dialogue

between M.H. and the detective who administered the identification, as

required by Delgado, 188 N.J. at 63, thereby depriving him of evidence

concerning the reliability of the identification.

      The limited record before us is based on four-page information packets

generated by the Bloomfield Police Department detailing each of the fifteen

photographic arrays shown to M.H. between June 21 and August 8, 2011. 4



3
  At the time he was interrogated, defendant was twenty-six years old and held
an Associate’s Degree from a local community college. Defendant also had a
criminal history. Specifically, after making an incriminating statement during
an interrogation, he had pled guilty to second-degree endangering the welfare
of a child. As a result of that offense, defendant was sentenced to time served
and required to register under Megan’s Law, N.J.S.A. 2C:7-1 to -23.
4
  Apparently, these information packets were not placed in evidence at the
time defendant requested the Delgado hearing or made part of the record
before the Appellate Division.

                                        14
Each four-page information packet consists of (1) a copy of the pre-printed

photo display instructions read by M.H. or to M.H. by the officer

administering the identification; (2) the photo display report listing the number

and letter code attached to each photograph and providing space for the officer

to write comments about the witness’s demeanor; (3) a copy of the six

photographs shown to M.H. on each occasion; and (4) the identification report,

partially pre-printed, that records whether M.H. made an identification and that

allows a handwritten narrative of the identification.

      During the fourteen identification procedures conducted between June

21 and August 4, 2011, M.H. was unable to make a positive identification of

her assailant. On August 8, 2011, two days after defendant’s arrest, M.H.

viewed a fifteenth photographic array administered by Detective Michael

Ruggiero. According to the State, Detective Ruggiero was a “blind

administrator,” meaning that he did not know which of the six photographs

displayed to M.H. depicted the true suspect. The photographs were of six

black men with close-cropped hair.

      The photo display report indicates that the identification procedure

began at 9:24 a.m. and ended at 9:33 a.m. with M.H. identifying defendant’s

photograph. In the report, the position of each photograph is given a

sequential number from one to six. Next to photo position numbers one, two,



                                       15
four, five, and six is a six-digit number followed by a letter. Next to photo

position number three -- designating defendant’s photograph -- is the word

“SUSPECT.” The report signed by Detective Ruggiero does not explain why

the word “SUSPECT” was used rather than the six-digit number and letter

assigned to every other photograph. Under the category “Comments and

Demeanor of Witness,” Detective Ruggiero wrote, “Calm, focused.” Next to

the line, “Did witness ask to see any photos again,” he circled the word “no.”

      The identification report, signed by both M.H. and Detective Ruggiero,

indicates that six photographs “were displayed one at a time and were never

shown next to one another.” The following pre-printed words (not

emphasized) and handwritten words (underscored) appear in the report: “I

examined the photographs carefully until I identified photograph # 3 As being

that of the guy who grabbed me and raped me behind the abandoned house on

Franklin St. in June.” Nothing more appears in the commentary portion of the

report other than the pre-printed words that Detective Ruggiero did not make

any threats or promises or urge or prompt M.H. to choose a photograph.

      Nowhere in the four-page information packet for the August 8

photographic array is there any recordation of any dialogue between M.H. and

Detective Ruggiero before, during, or after the identification; M.H.’s level of

confidence when making the identification; or any possible positive or



                                       16
negative gestures of M.H., such as spontaneous affirmation or hesitation in

identifying defendant’s photograph.

      The trial court denied defendant’s motion for a hearing without

responding to defendant’s argument that the failure to adequately record the

identification procedure violated Delgado. Instead, the court observed that the

2001 New Jersey Attorney General Guidelines did not require the police to

electronically record photographic arrays, and cited Delgado for that

proposition. The court concluded that the identification process was

“completed within the Attorney General Guidelines as they existed at the time”

of the procedure. The court then found that defendant “failed to show any

evidence of suggestiveness [in the identification process] that could lead to a

misidentification.” In the absence of such evidence, the court reasoned that

defendant was not entitled to a Wade hearing to determine the reliability of the

identification.

                                       D.

      In accordance with a plea agreement, defendant entered guilty pleas to

five counts in the indictment: first-degree kidnapping of M.H. and A.D.; first-

degree aggravated sexual assault of M.H. and A.D.; and first-degree attempted

aggravated sexual assault of V.B. The court sentenced defendant on one

kidnapping count to a twenty-year state-prison term subject to the No Early



                                       17
Release Act, N.J.S.A. 2C:43-7.2, and to concurrent twenty-year terms subject

to the No Early Release Act on each of the four remaining counts. In all,

defendant received an aggregate twenty-year prison sentence subject to an

eighty-five percent parole disqualifier. The remaining charges in the

indictment were dismissed. Defendant preserved his right to appeal the denial

of both his motion to suppress his confession and his motion for an evidentiary

hearing to determine the reliability of the identification.

                                        E.

      In an unpublished opinion, the Appellate Division reversed the trial

court, vacating defendant’s convictions and remanding for further proceedings.

First, the Appellate Division held that the State failed to prove beyond a

reasonable doubt that defendant gave a “voluntary” confession to the

detectives. It determined that the trial court’s “detailed analysis” had

“overlooked that the officers’ false promises of no incarceration directly

negated the Miranda warnings and induced defendant to confess.” It

acknowledged that the detectives’ offer of “counseling alone did not render

defendant’s confession involuntary under the totality of the circumstances.”

The Appellate Division, however, stressed that “[o]n three separate occasions

and in three different ways, the officers assured defendant that if he spoke with

them, he would not be put in jail.” It maintained that the detectives’



                                        18
suggestion that “a confession would only help him to obtain counseling, and

would not result in his incarceration,” contravened the Miranda warnings. It

also rejected the argument that defendant knew from his prior experience with

the police that any statement he made would be used against him because the

detectives in this case “told defendant to disregard his prior encounter with law

enforcement.” Because the false promises of no incarceration induced

defendant to speak in violation of Miranda, the Appellate Division suppressed

defendant’s confession.

      Second, the Appellate Division held that the trial court should have

conducted a hearing to determine whether the Bloomfield police failed to

record the photo-identification procedure in accordance with Delgado. 5 It

reasoned that the Delgado requirements were intended to expose any

suggestiveness in the identification procedure, and therefore defendant should

not be deprived of a Wade hearing because law enforcement failed to abide by

the dictates of Delgado. It ordered the trial court on remand to “conduct such

hearings it deems necessary to determine the admissibility of the out-of-court

identification” and added that if the identification procedures were not




5
  The Appellate Division noted that the packets documenting the identification
procedures were not marked in evidence or made part of the record before it.
Those packets, however, are part of the record before this Court.

                                       19
properly recorded, “Delgado does not necessarily require the court to suppress

the identification.”

                                        F.

      This Court granted the State’s petition for certification. 6 233 N.J. 24

(2018). This Court also granted the motions of the American Civil Liberties

Union of New Jersey (ACLU) and the Association of Criminal Defense

Lawyers of New Jersey (ACDL) to participate as amici curiae.

                                        II.

                                        A.

      The State urges that we affirm the trial court’s factfindings that

defendant’s confession was voluntary and not the product of improper

psychological compulsion. The State maintains that “the interrogation

techniques used by the detectives did not strip defendant of his capacity for

self-determination.” In particular, the State rejects the assertion that the

detectives made “explicit” promises that defendant could avoid jail if he

confessed. Rather, it claims that “the detectives implicitly promised that if

defendant confessed, they could connect him with effective counseling.” In its

view, “[d]efendant’s statements, questions, requests, and negotiations . . .



6
  Before granting certification, we granted the State’s motion to expand the
record to include defendant’s video-recorded statement.

                                        20
demonstrate that his will was not overborne at any point during the

interrogation.”

      The State also submits that the trial court did not err in denying

defendant’s request for an evidentiary hearing to determine the reliability of

the identification. The State argues that the recordation of the identification

complied with both the Attorney General Guidelines and Delgado and that

neither demands a verbatim record -- as opposed to a written summary -- of the

identification. It maintains that the Appellate Division took an unprecedented

step in holding that Delgado required the trial court to conduct a hearing based

on the alleged failure of the police to make a record of the identification

procedure.

                                        B.

      Defendant asks that we affirm the Appellate Division’s suppression of

his confession. He submits that the detectives directly and falsely promised

that he would not be jailed if he spoke the truth, contradicting the detectives’

earlier assurance “that anything said can and will be used against [you] in

court,” quoting Miranda v. Arizona, 384 U.S. 436, 469 (1966). Defendant

rejects the State’s argument that “[he], and others who have been previously

prosecuted should know better than to trust police officers” -- that he and

others subject to prior interrogations have no excuse “for believing the veracity



                                       21
of police assertions.” The false promises, defendant maintains, overbore his

will and caused him to make self-incriminating statements.

      Defendant also submits that the failure of the police to provide a

verbatim account of the identification procedure, as mandated by Delgado,

requires a remand for an evidentiary hearing, as ordered by the Appellate

Division. In defendant’s view, the deficiencies in recording the identification

violated not only Delgado, but also the Attorney General’s Guidelines.

                                        C.

      Amicus ACDL asks this Court to adopt a rule that renders involuntary a

confession induced by a combination of false promises that the suspect will

receive counseling and avoid jail -- promises that negate the Miranda warning

that anything the suspect says can be used against him in court.

      Amici ACLU and ACDL both submit that the out-of-court identification

procedure did not meet the admissibility requirements set by Delgado and

therefore the identification should be suppressed. Suppression is necessary,

amici declare, because the detectives have deprived our courts of the record

necessary to determine the reliability of the identification.

                                        III.

      We first address whether the alleged promises made to defendant by the

interrogating detectives -- promises that he would receive counseling and help



                                        22
and not face jail if he spoke the truth -- violated his rights guaranteed by the

United States Constitution and New Jersey law.

      The right against self-incrimination is guaranteed by the Fifth

Amendment to the United States Constitution and this State’s common law,

now embodied in statute, N.J.S.A. 2A:84A-19, and evidence rule, N.J.R.E.

503. See U.S. Const. amend. V (“No person . . . shall be compelled in any

criminal case to be a witness against himself . . . .”); 7 N.J.S.A. 2A:84A-19

(“[E]very natural person has a right to refuse to disclose in an action or to a

police officer or other official any matter that will incriminate him or expose

him to a penalty or a forfeiture of his estate . . . .”); N.J.R.E. 503 (same as

N.J.S.A. 2A:84A-19).

      In the landmark case of Miranda v. Arizona, the United States Supreme

Court imposed a safeguard to protect a suspect’s right against self-

incrimination from the psychological pressures inherent in a police-dominated

atmosphere that might compel a person “to speak where he would not

otherwise do so freely.” 384 U.S. at 467. That safeguard mandated that a

suspect subject to custodial interrogation “be adequately and effectively

apprised of his rights.” Ibid. To that end, the Court prescribed a set of


7
  The Fifth Amendment right against self-incrimination has been made
applicable to the States through the Due Process Clause of the Fourteenth
Amendment. Malloy v. Hogan, 378 U.S. 1, 8 (1964).

                                         23
warnings that the police must give a suspect before an interrogation begins --

warnings that, in part, instruct the suspect that “he has the right to remain

silent” and “that anything he says can be used against him in a court of law.”

Id. at 479. Under our state law, at an N.J.R.E. 104(c) hearing, 8 the State bears

the burden of proving beyond a reasonable doubt that a defendant’s waiver of

his rights was made knowingly, intelligently, and voluntarily. State v.

Nyhammer, 197 N.J. 383, 400-01 (2009); State v. Presha, 163 N.J. 304, 313

(2000). 9

      Due process also requires that the State “prove beyond a reasonable

doubt that a defendant’s confession was voluntary and was not made because

the defendant’s will was overborne.” State v. Knight, 183 N.J. 449, 462

(2005); see also Hreha, 217 N.J. at 383. “The due process test takes into

consideration ‘the totality of all the surrounding circumstances -- both the

characteristics of the accused and the details of the interrogation.’” Dickerson

v. United States, 530 U.S. 428, 434 (2000) (quoting Schneckloth v.



8
  N.J.R.E. 104(c) provides that “[w]here by virtue of any rule of law a judge is
required in a criminal action to make a preliminary determination as to the
admissibility of a statement by the defendant, the judge shall hear and
determine the question of its admissibility out of the presence of the jury.”
9
  Under federal law, the government must “prove waiver only by a
preponderance of the evidence.” See Colorado v. Connelly, 479 U.S. 157, 168
(1986).

                                        24
Bustamonte, 412 U.S. 218, 226 (1973)); see also Hreha, 217 N.J. at 383. The

source of this test is the common law, which “recognized that coerced

confessions are inherently untrustworthy.” Dickerson, 530 U.S. at 433 (citing

King v. Warickshall (1783) 168 Eng. Rep. 234, 235 (K.B.) (“[A] confession

forced from the mind by the flattery of hope, or by the torture of fear, comes in

so questionable a shape . . . that no credit ought to be given to it; and therefore

it is rejected.”)).

       Contemporary constitutional jurisprudence recognizes that

              [t]he abhorrence of society to the use of involuntary
              confessions does not turn alone on their inherent
              untrustworthiness. It also turns on the deep-rooted
              feeling that the police must obey the law while
              enforcing the law; that in the end life and liberty can be
              as much endangered from illegal methods used to
              convict those thought to be criminals as from the actual
              criminals themselves.

              [Spano v. New York, 360 U.S. 315, 320-21 (1959).]

Accordingly, “[a] confession which is the product of physical or psychological

coercion must be considered to be involuntary and inadmissible in evidence

regardless of its truth or falsity.” State v. Miller, 76 N.J. 392, 405 (1978); see

also Galloway, 133 N.J. at 654 (“An involuntary confession can result from

psychological as well as physical coercion.”).

       The voluntariness determination weighs the coercive psychological

pressures brought to bear on an individual to speak against his power to resist

                                         25
confessing. Dickerson, 530 U.S. at 434. Under New Jersey and federal law,

the factors relevant to the voluntariness analysis include “the suspect’s age,

education and intelligence, advice concerning constitutional rights, length of

detention, whether the questioning was repeated and prolonged in nature, and

whether physical punishment and mental exhaustion were involved,” as well as

previous encounters with law enforcement. Hreha, 217 N.J. at 383 (quoting

Galloway, 133 N.J. at 654); accord Schneckloth, 412 U.S. at 226. Those

factors are “assessed qualitatively, not quantitatively,” for “the presence of

even one of those factors may permit the conclusion that a confession was

involuntary.” Hreha, 217 N.J. at 384. The ultimate determination of

voluntariness, however, will depend on the totality of the circumstances. Id. at

383.

       Because a suspect will have a “natural reluctance” to furnish details

implicating himself in a crime, an interrogating officer may attempt “to

dissipate this reluctance and persuade the [suspect] to talk.” Miller, 76 N.J. at

403. One permissible way is by “[a]ppealing to [the suspect’s] sense of

decency and urging him to tell the truth for his own sake.” Id. at 405. Our

jurisprudence even gives officers leeway to tell some lies during an

interrogation. See Galloway, 133 N.J. at 655; Miller, 76 N.J. at 403-04.




                                        26
      Certain lies, however, may have the capacity to overbear a suspect’s will

and to render a confession involuntary. Thus, a police officer cannot directly

or by implication tell a suspect that his statements will not be used against him

because to do so is in clear contravention of the Miranda warnings. State in

Interest of A.S., 203 N.J. 131, 151 (2010) (“A police officer cannot directly

contradict, out of one side of his mouth, the Miranda warnings just given out

of the other.” (quoting State v. Pillar, 359 N.J. Super. 249, 268 (App. Div.

2003))); see also State v. Puryear, 441 N.J. Super. 280, 298 (App. Div. 2015)

(finding impermissible an interrogator’s representation to the defendant that he

“could not hurt himself and could only help himself by providing a statement”

because it “contradicted a key Miranda warning”). In A.S., the interrogating

officer violated a juvenile defendant’s rights by telling her that answering

questions “would actually benefit her” -- an assertion at direct odds with the

Miranda warning “that anything she said in the interview could be used against

her in a court of law.” 203 N.J. at 151.

      Other impermissible lies are false promises of leniency that, under the

totality of circumstances, have the capacity to overbear a suspect’s will. See

Hreha, 217 N.J. at 383. A “free and voluntary” confession is not one extracted

by “threats or violence, nor obtained by any direct or implied promises,

however slight, nor by the exertion of any improper influence.” Brady v.



                                       27
United States, 397 U.S. 742, 753 (1970) (quoting Bram v. United States, 168

U.S. 532, 542-43 (1897)). 10

        “A court may conclude that a defendant’s confession was involuntary if

interrogating officers extended a promise so enticing as to induce that

confession.” Hreha, 217 N.J. at 383 (citing State v. Fletcher, 380 N.J. Super.

80, 89 (App. Div. 2005)). “[W]here a promise is likely to ‘strip[] defendant of

his “capacity for self-determination”’ and actually induce the incriminating

statement, it is not voluntary.” Fletcher, 380 N.J. Super. at 89 (quoting Pillar,

359 N.J. Super. at 272-73).

        Under the totality-of-the-circumstances test, a promise of leniency is one

factor to be considered in determining voluntariness. Hreha, 217 N.J. at 383.

Courts have recognized that the danger posed by promises of leniency is that

such promises in some cases may have the capacity to overbear a suspect’s

will and produce unreliable -- even false -- confessions. See State v. Madsen,

813 N.W.2d 714, 725 (Iowa 2012) (“Courts and commentators have long

recognized promises of leniency can induce false confessions leading to

wrongful convictions of the innocent.”). 11 Some courts also take into account


10
   “Bram and its progeny did not hold that the possibly coercive impact of a
promise of leniency could not be dissipated by the presence and advice of
counsel.” Brady, 397 U.S. at 754.
11
     Courts have acknowledged that some promises of leniency -- particularly

                                        28
an interrogator’s “minimization” of the offense when questioning the suspect

as one factor in determining the voluntariness of a confession. 12

      State v. Hreha provides general guidance on how to assess a promise of

leniency for purposes of determining the voluntariness of a suspect’s

confession. 217 N.J. at 385-86. There, the defendant testified at a Miranda

hearing that, during a custodial interrogation at his workplace, law



those that combine an implied promise of counseling with a reduction or
elimination of a custodial sentence -- have the capacity to overbear a suspect’s
will and cause him to surrender his fundamental right to remain silent. See,
e.g., State v. Wiley, 61 A.3d 750, 758, 760 (Me. 2013) (suppressing the
defendant’s statement because the “overall effect of [the interrogating
officer’s] representations . . . was to establish that if [the defendant] confessed
to the crimes he would get a short county jail sentence with probation”); State
v. Reynolds, 145 A.3d 1256, 1258, 1263 (Vt. 2016) (suppressing the
defendant’s statement because the interrogating officer’s remarks “implied that
defendant would face treatment or complete absolution” if he adopted the
officer’s theory of events); see also People v. Wall, 404 P.3d 1209, 1221 (Cal.
2017) (“[W]here 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.” (alteration in original) (quoting People v. Boyde, 758 P.2d 25,
39 (Cal. 1988) (en banc)), cert. denied, ___ U.S. ___, 139 S. Ct. 187 (2018).
12
   See, e.g., Commonwealth v. DiGiambattista, 813 N.E.2d 516, 525-28
(Mass. 2004) (suppressing the defendant’s statement because the interrogating
officer’s minimization of the crime and repeated references to the need for
“counseling” suggested to the defendant that “counseling” would serve as an
alternative to incarceration); see also Saul M. Kassin, The Psychology of
Confessions, 4 Ann. Rev. L. & Soc. Sci. 193, 202-03 (2008) (“Research shows
that minimization tactics may lead people to infer by pragmatic implication
that leniency in sentencing will follow from confession -- even without an
explicit promise.”).

                                        29
enforcement officers promised that, if he confessed to committing computer

theft, he “could participate in a pretrial intervention (PTI) program instead of

facing traditional criminal prosecution” -- a punishment that the officers

described as “a slap on the wrist.” Id. at 375-77. The defendant also testified

that the officers promised him that he could “exit the building without

handcuffs and suggested that he would not lose his job.” Id. at 376. During

the Miranda hearing, the testifying officer did not deny making those promises

but “merely asserted that he could not recollect whether any promises had been

made.” Id. at 384.

      Because the trial court misconstrued the testimony at the Miranda

hearing, we overturned the court’s finding of voluntariness and remanded for a

new hearing. Id. at 385. On remand, we directed the court to make fresh

credibility and factual findings and to determine whether the officers extended

any promises of leniency and, if so, whether those promises were likely to

induce an involuntary confession in light of the totality of the circumstances.

Id. at 385-86.

      We now apply the principles relevant to determining voluntariness to the

facts of this case.




                                       30
                                        IV.

      We begin with our standard of review. “When faced with a trial court’s

admission of police-obtained statements, an appellate court should engage in a

‘searching and critical’ review of the record to ensure protection of a

defendant’s constitutional rights.” Hreha, 217 N.J. at 381-82 (quoting State v.

Pickles, 46 N.J. 542, 577 (1966)). Subject to that caveat, this Court generally

will defer to a trial court’s factual findings concerning the voluntariness of a

confession that are based on sufficient credible evidence in the record. See

State v. Elders, 192 N.J. 224, 244 (2007). Factual findings, however, that are

clearly mistaken are accorded no deference. State v. S.S., 229 N.J. 360, 381

(2017). When factfindings are clearly mistaken, “the interests of justice

demand intervention” by an appellate court. Ibid. Simply put, “[d]eference

ends when a trial court’s factual findings are not supported by sufficient

credible evidence in the record.” Ibid. Issues of law are reviewed de novo.

Hreha, 217 N.J. at 382.

      The video-recorded interrogation here reveals that the detectives made

(1) representations that directly conflicted with the Miranda warnings,

(2) promises of leniency by offering counseling as a substitute for jail, and

(3) statements that minimized the seriousness of the crimes under investigation

-- all relevant factors under the totality-of-the-circumstances test.



                                        31
      First, the detectives advised defendant that telling the truth would be

helpful to him and “w[ould] set [him] free.” That advice directly conflicted

with the Miranda warning that anything defendant said could be used against

him. Interrogating officers are not allowed to disarm the Miranda warnings

during the interrogation by falsely asserting or suggesting that a suspect’s

words will be used in his favor and not against him in court. See A.S., 203

N.J. at 151. Although defendant had experience in the criminal justice system,

which ordinarily would suggest he was on notice that his words would be used

against him, the detectives suggested that he should disregard his prior

experience and tell the truth, in which case he would not go to jail as happened

the last time.

      Second, the detectives repeatedly told defendant that they would get him

help in the form of counseling and coupled those representations with the

assurance that if he told the truth he would not go to jail. Here are but a few

examples:

             [Detective Fano]: [W]e’re gonna help you out. You
             need some counseling.      You need some more
             counseling.

             [Detective Krentz]: And we’re willing to get you the
             help that you need.

             ....




                                       32
            [Defendant]: Am I going to jail tonight? Is this going
            to be my last meal or something like that?

            [Detective Krentz]: No, no, not at all.

            ....

            [Defendant]: The help I need is not sending me to jail
            is it?

            [Detective Krentz]:       Not at all.      Nobody gets
            rehabilitated in jail.

            [Detective Fano]: Yeah, I agree.

The detectives also reinforced the notion that a jail term would be

incompatible with the needs of his daughter, who required a father in her life.

      Third, the detectives repeatedly minimized the nature and gravity of the

of defendant’s alleged offenses -- intimating that his conduct was amenable to

counseling and rehabilitation. The detectives told defendant that he “didn’t

hurt anybody” or “rob them”; that he “didn’t beat them up” and “treated them

with respect”; and that he was “not a bad guy,” was “salvageable,” and could

“rebuild.” One of the detectives even suggested that he wanted to get

defendant the same type of counseling his family had secured for his own

nephew.

      The psychologically coercive techniques illustrated above were not

referred to by the trial court, which described the detectives as lending a

sympathetic ear and employing the “good guy approach,” but making no

                                       33
promises. But the record revealed much more. The trial court did not canvass

the law that identifies psychological interrogation techniques, which, in the

aggregate, have the capacity to overbear a suspect’s will. 13 We agree with the

Appellate Division that the trial court “overlooked that the officers’ false

promise of no incarceration directly negated the Miranda warnings and

induced defendant to confess.” The Appellate Division conducted a

“‘searching and critical’ review of the record” in reversing the trial court. See

Hreha, 217 N.J. at 381-82 (quoting Pickles, 46 N.J. at 577). Such a review

leads us as well to the conclusion that the trial court was “clearly mistaken” in

finding that defendant’s confession was voluntary beyond a reasonable doubt.

See S.S., 229 N.J. at 381.

      In determining whether the State satisfied its burden of proving beyond a

reasonable doubt the voluntariness of defendant’s confession, we do not look

at any one factor in isolation -- such as the statement that contradicted the

Miranda warning, the promises of help and counseling coupled with the

implicit assurance he would not face jail, and the minimization of his conduct



13
   The dissent emphasizes the trial court’s finding that, as defendant
confessed, “he -- not his interrogators -- controlled the flow of information in
their exchange.” Post at ___ (slip op. at 12-13). However, a defendant’s
incriminating remarks after his will is overborne are not relevant to whether
his will was overborne. Statements made by defendant after the violation of
his Fifth Amendment rights cannot repair the constitutional violation.

                                        34
in the offenses he committed. Rather we view all as part of a larger tableau

that constitutes the totality of the circumstances. See Hreha, 217 N.J. at 383-

84. Viewed in this light, the State failed to meet its burden that defendant’s

confession was voluntarily secured beyond a reasonable doubt by means

consistent with our constitutional jurisprudence.

      The facts before us are unlike those in State v. Miller, a case in which a

sharply divided Court -- with three members dissenting -- found a confession

voluntary, while acknowledging that the interrogation technique pressed the

limits of how to secure a voluntary confession by lawful means. 76 N.J. at

404-05, 408. In that case, Miller became the focus of an investigation into the

brutal murder of a seventeen-year-old female. Id. at 396-97. Two state

troopers transported Miller from the factory where he worked to a state police

barracks, where he arrived at 11:49 p.m. Id. at 397. The tape-recorded

interrogation began about two hours later and lasted fifty-eight minutes. Ibid.

Miller was read and waived his Miranda rights. Ibid. The interrogating officer

advised Miller he was a suspect in the murder and a back-and-forth

conversation proceeded, with Miller at first denying his involvement in the

crime. Ibid. At some point, Miller stated that “whoever did it really needs

help.” Id. at 398. In response, “[t]he officer suggested that such a person was

not really a criminal who should be punished, but rather needed medical



                                       35
treatment” and that “he would do all he could to help [Miller] but that [Miller]

had to help himself first by talking about it.” Ibid.

      Miller then gave an incredible account of how he was walking with the

young woman through a field when a knife-wielding man attacked her, of how

he attempted to defend her, and of how he panicked and took her dead body

and dropped it off a bridge into a stream. Id. at 398. Confronted with this

account, the officer said, “[Y]ou killed this girl didn’t you?” Ibid. In the face

of Miller’s continued denial, the officer stated, “You’ve got to tell me the

truth. I can’t help you without the truth.” Ibid. The officer persisted that

Miller had to be “truthful with [himself].” Id. at 399. Shortly afterwards,

Miller confessed. Ibid.

      The Court formulated the voluntariness issue by posing two questions:

(1) can an interrogating officer “appeal to a suspect by telling him that he is

the suspect’s friend and wants to help him [and] that whoever killed this girl is

not a criminal who should be punished, but a person who needs medical

treatment”; and (2) “[d]oes the officer have the right to tell the suspect that he

must help himself first by telling the truth and then the officer will do what he

can to help the suspect with his problem?” Id. at 403-04. Having formulated

the issue, the Court conceded that the interrogation technique used “moves into




                                        36
a shadowy area and if carried to excess in time and persistence, can cross that

intangible line and become improper.” Id. at 404.

      Significantly, when the United States Court of Appeals for the Third

Circuit denied Miller’s habeas corpus petition challenging the voluntariness of

the confession, the divided three-judge panel observed that, based on the

interrogation techniques, “if Miller had made remarks that indicated that he

truly believed that the state would treat him leniently because he was ‘not

responsible’ for what he had done or that he believed that he would receive

psychiatric help rather than punishment, we might not find the confession

voluntary.” Miller v. Fenton (Fenton), 796 F.2d 598, 601, 613 (3d Cir. 1986).

By the reckoning of the majorities in both Miller and Fenton, the investigating

officer’s interrogation techniques evidently approached the outer limit of how

lawfully to secure a voluntary confession. 14



14
   The dissents in Miller and Fenton strongly condemned the interrogation
techniques used by the investigating officer and protested that fundamental
rights must be honored in cases involving even egregious crimes. Miller, 76
N.J. at 409, 423 (Conford, P.J.A.D., dissenting); Fenton, 796 F.2d at 627-28
(Gibbons, J., dissenting). In his dissent in Miller, Judge Conford lamented that
“this case signals to the law-enforcement community that the method of
interrogation of this defendant resulting in the confession before us is
unexceptionable and may be freely practiced.” Miller, 76 N.J. at 410
(Conford, P.J.A.D., dissenting). Similarly, in his dissent in Fenton, Judge
Gibbons criticized the majority for “endorsing a thoroughly bad piece of police
work” and thus sending “a signal to the police community in this circuit that is
likely to have the harmful consequence of encouraging coercion of defendants

                                       37
      The interrogation techniques used in the present case -- in their totality

-- go well beyond the norms haltingly approved in Miller. The interrogation

here “carried to excess in time and persistence” and “cross[ed] that intangible

line and bec[a]me improper.” See Miller, 76 N.J. at 404. 15

      The defendant in this case was arrested at 2:30 a.m., transported to

headquarters, and remained handcuffed in a room or confined in a cell for the

next three hours. Not until 5:31 a.m. did the three-hour interrogation begin.

Although at one point defendant indicated that he was “tired as hell,” the

record does not reveal how long defendant had gone without sleep because the

detectives did not ask during the interrogation. During the interrogation, to

overcome defendant’s reluctance to speak, the detectives employed the

techniques that we have already discussed at length. The detectives



in place of acceptable methods of investigation.” Fenton, 796 F.2d at 613-14
(Gibbons, J., dissenting).
15
   The present case is not similar to Galloway either -- a murder case in which
the defendant was interrogated for harshly shaking a three-month-old child,
eventually causing the child’s death. 133 N.J. at 637-39. After repeatedly
warning the defendant of his Miranda rights, the interrogating officer “used the
‘theme’ that defendant had to tell him what had happened to the child so the
doctors could properly treat the child.” Id. at 639. The defendant then “gave
an incriminating oral account of the events surrounding the shaking of the
child.” Ibid. The officer admitted that he intended to use the information as
part of his criminal investigation. Id. at 653. Relying on Miller, the Court
found that this deceptive interrogation technique did not render the confession
involuntary. Id. at 655-57.

                                       38
undermined the Miranda warning that defendant’s words could be used against

him by telling him the truth would set him free; they falsely promised help and

counseling as a substitute for jail; and they minimized the seriousness of the

offenses under investigation. In the totality of the circumstances, given the

combination of all the relevant evidence and factors, the State failed to show

beyond a reasonable doubt that the interrogators’ representations to defendant

did not overbear his will and induce him to confess.

      Therefore, like the Appellate Division, we conclude that the detectives

secured an involuntary confession. Because defendant preserved his right to

appeal the denial of his motion to suppress the confession, defendant’s guilty

plea must be vacated.

                                       V.

      We next address defendant’s claim that the Bloomfield police failed to

properly record the photographic-array procedure leading to M.H.’s

identification of defendant, thus entitling him to an evidentiary hearing. The

governing law at the time of the out-of-court identification was State v.

Delgado, 188 N.J. 48 (2006). 16


16
   The photographic array was administered several weeks before our decision
in State v. Henderson, 208 N.J. 208 (2011), and nearly a year before we
promulgated Rule 3:11. See Henderson, 208 N.J. at 208, 220 (announcing on
August 24, 2011 that “[t]he revised principles in this decision will apply purely
prospectively”). The parties agree that this appeal is controlled by Delgado.

                                       39
      In Delgado, we exercised our supervisory powers under Article VI,

Section 2, Paragraph 3 of the New Jersey Constitution and required that “law

enforcement officers make a written record detailing the out-of-court

identification procedure, including the place where the procedure was

conducted, the dialogue between the witness and the interlocutor, and the

results.” 188 N.J. at 63. We emphasized that “the dialogue between a law

enforcement officer and a witness may be critical to understanding the level of

confidence or uncertainty expressed in the making of an identification and

whether any suggestiveness, even unconsciously, seeped into the identification

process.” Id. at 60. “Preserving the words exchanged between the witness and

the officer conducting the identification procedure,” we recognized, “may be

as important as preserving either a picture of a live lineup or a photographic

array.” Id. at 63.

      We instructed that “[w]hen feasible, a verbatim account of any exchange

between the law enforcement officer and witness should be reduced to

writing,” and “[w]hen not feasible, a detailed summary of the identification

should be prepared.” Ibid. Without issuing a mandate, we added that “[i]n the

station house where tape recorders may be available, electronic recordation is

advisable.” Ibid. Here, Detective Ruggiero, who administered the

photographic array, did not electronically record the identification procedure



                                       40
or make a “verbatim account” of the words exchanged between him and the

witness. Nor do we have any explanation why he did not do so.

      Detective Ruggiero used the pre-printed forms supplied by the

Bloomfield police that provided certain scripted remarks to be read to or by the

witness and blank spaces for the inclusion of handwritten observations by the

detective and explanations by the witness. The police documented the

photographic array shown to M.H. and the photograph she selected. Detective

Ruggiero handwrote “[c]alm, focused” in the category for comments and

demeanor of witness. After the pre-printed words, “I examined the

photographs carefully until I identified photograph #,” either Detective

Ruggiero or M.H. wrote the number “3” signifying the photograph selected

and added that he was the “guy” who “grabbed me and raped me behind the

Abandoned house on Franklin St. in June.” The four-page identification

procedure packet does not contain the required verbatim account or a detailed

summary of the dialogue between Detective Ruggiero and M.H.

      The failure to abide by the dictates of Delgado is all the more

inexplicable because the identification procedure was prearranged and

occurred during normal operating hours at police headquarters, where




                                       41
undoubtedly electronic recording devices were available. 17 The evidentiary

hearing requested by defendant would have provided defendant the opportunity

to attempt to secure the information denied to him by the Delgado violation --

the full dialogue between Detective Ruggiero and M.H. before, during, and

immediately after the identification; M.H.’s statement of confidence in her

identification; and evidence of any potential suggestiveness in the

identification procedure. For example, without knowing how and when the

word “SUSPECT” was placed next to defendant’s photograph on the photo

display report -- rather than the six-digit number and letter assigned to the five

other photos in the array -- doubt is raised about whether Detective Ruggiero

was a “blind administrator.”

      Accordingly, we remand for an evidentiary hearing to explore the issue

of suggestiveness in the identification process and for the determination of an

appropriate remedy for the Delgado violation. We do not suggest that the

court is required to bar the identification. See State v. Anthony, 237 N.J. 213,

239 (2019) (“We have not, however, created bright-line rules that call for the

‘suppression of reliable evidence any time a law enforcement officer makes a

mistake.’” (quoting Henderson, 208 N.J. at 303)). The trial court may



17
   Indeed, the Bloomfield police had video-recorded defendant’s interrogation
just two days earlier.

                                        42
consider charging the jury on the State’s failure to follow the recordation

procedures set forth in Delgado. See id. at 234-35.

      If such a charge is appropriate,

            jurors should be told that officers are required to record
            identification procedures . . . ; if that is not feasible,
            they are required to prepare a contemporaneous,
            verbatim written account of the procedure. If the police
            did not follow that practice, and, for example, did not
            capture the dialogue between the witness and the
            officer, . . . the jury may take that into account when it
            evaluates the identification evidence. 18

            [Id. at 235.]

                                         VI.

      For the reasons expressed, we affirm the judgment of the Appellate

Division, which determined that the trial court erred in finding defendant’s

confession voluntary. We hold that the State failed to prove beyond a

reasonable doubt that defendant rendered a voluntary confession, and therefore

the confession must be suppressed. Accordingly, defendant is entitled to

withdraw his guilty plea, having preserved that issue for appeal.

      We also hold that the police failed to prepare a contemporaneous

verbatim account of the identification procedure as required by Delgado. An


18
  The proposed jury charge is appropriate because this case arose after
Delgado but before Henderson and the adoption of Rule 3:11. Supra note 16.
Today, the police must also record “a witness’ statement of confidence, in the
witness’ own words.” R. 3:11(c)(7); see also Anthony, 237 N.J. at 235.

                                         43
evidentiary hearing must be conducted prior to trial to determine whether any

suggestiveness occurred during the identification procedure, and the court also

must determine any appropriate remedy for the Delgado violation. We remand

for proceedings consistent with this opinion.



      JUSTICES LaVECCHIA, FERNANDEZ-VINA, and TIMPONE join in
JUSTICE ALBIN’s opinion. JUSTICE PATTERSON filed an opinion --
concurring in the remand for an evidentiary hearing as to the identification
procedure and dissenting from the suppression of defendant’s confession -- in
which CHIEF JUSTICE RABNER and JUSTICE SOLOMON join.




                                       44
                    SUPREME COURT OF NEW JERSEY
                          A-59 September Term 2017
                                     079974


                               State of New Jersey,

                               Plaintiff-Appellant,

                                        v.

                                      L.H.,

                              Defendant-Respondent.


      JUSTICE PATTERSON, concurring in part and dissenting in part.


      I concur with the majority and the Appellate Division that the procedure

used by police officers in connection with defendant’s identification by M.H.,

one of the three sexual assault victims in this matter, did not comport with

State v. Delgado, 188 N.J. 48, 63 (2006). Ante at ___ (slip op. at 39-43). I

therefore agree with the majority and the Appellate Division that a remand is

needed so that the trial court may decide whether the identification procedure

entailed suggestiveness and, if necessary, impose an appropriate remedy. Ante

at ___ (slip op. at 42-43).

      I do not agree, however, that defendant’s confession to two sexual

assaults and one attempted sexual assault should be suppressed. Ante at ___

(slip op. at 31-39). The trial court denied defendant’s motion to suppress after
                                        1
it reviewed the videotape of defendant’s confession and other evidence

presented at the N.J.R.E. 104(c) hearing, made detailed factual findings, and

concluded that the State had met its burden to prove beyond a reasonable doubt

that the confession was voluntary. Neither the Appellate Division nor the

majority afforded the trial court’s findings the substantial deference to which

they are entitled.

      I concur with the majority that a portion of the interrogation that gave

rise to this appeal crossed the line between proper and improper police tactics.

The interrogating officers promised defendant that he would be provided

counseling in the event that he confessed, and suggested -- notwithstanding the

gravity of defendant’s crimes -- that the officers would somehow ensure that

the counseling would be afforded to defendant outside of a prison setting.

Clearly, the officers should have refrained from offering any such assurances,

which could deceive and coerce a suspect less intelligent and experienced than

this defendant.

      The videotape of the questioning, however, reveals defendant to be an

intelligent, well-educated, self-confident veteran of the criminal justice system

who was skeptical of the officers’ reassuring comments and presented a

carefully crafted narrative of his offenses that downplayed his culpability. As

the trial court ruled and the videotape record confirms, the officers’ statements


                                        2
did not overbear defendant’s will or coerce his confession. In my view,

therefore, the trial court’s finding that defendant’s confession was voluntary

was supported by sufficient credible evidence in the record.

      Accordingly, I respectfully dissent from the majority’s holding regarding

defendant’s motion to suppress his confession.

                                         I.

                                         A.

      Well-settled jurisprudence sets the governing standard for this appeal.

When a trial court assesses whether a videotaped confession was voluntary, it

must hold an evidentiary hearing pursuant to N.J.R.E. 104(c), in which it

imposes on the State the burden to prove voluntariness beyond a reasonable

doubt and makes factual findings with respect to the pertinent factors. State v.

Hreha, 217 N.J. 368, 383 (2014); State v. Knight, 183 N.J. 449, 462-63 (2005);

State v. Galloway, 133 N.J. 631, 654 (1993); State v. Miller, 76 N.J. 392, 405

(1978). The court’s assessment of the totality of the circumstances of a given

case -- not its application of per se rules -- is at the core of the voluntariness

determination. Hreha, 217 N.J. at 383. When the trial court’s determination is

appealed, its factual findings are entitled to substantial deference, even if those

findings are premised exclusively on videotaped evidence. State v. S.S., 229

N.J. 360, 376-81 (2017); see also State v. A.M., 237 N.J. 384, 395-96 (2019);


                                          3
State v. Hubbard, 222 N.J. 249, 269 (2015); State v. Locurto, 157 N.J. 463,

471 (1999).

                                        B.

      When the State seeks to admit a criminal defendant’s confession, it has

the burden to show not only that the defendant was informed of his or her

rights under Miranda v. Arizona, 384 U.S. 436, 479 (1966), “but also that he

has knowingly, voluntarily, and intelligently waived those rights, before any

evidence acquired through the ‘interrogation can be used against him,’” State

v. Nyhammer, 197 N.J. 383, 400-01 (2009) (quoting Miranda, 384 U.S. at

479). Where, as here, the critical inquiry concerns the voluntariness of a

confession, “the State shoulders the burden of proving beyond a reasonable

doubt that a defendant’s confession was actually volunteered and that the

police did not overbear the will of the defendant.” Hreha, 217 N.J. at 383

(citing Galloway, 133 N.J. at 654); see also Knight, 183 N.J. at 462.

      To assess whether the State has met its burden, the trial court holds a

pretrial hearing to “hear and determine the question of . . . admissibility out of

the presence of the jury.” N.J.R.E. 104(c).

      When a trial court decides whether a confession is voluntary, it considers

“the totality of the circumstances, including both the characteristics of the

defendant and the nature of the interrogation.” Hreha, 217 N.J. at 383 (quoting


                                        4
Galloway, 133 N.J. at 654). Relevant factors include “the suspect’s age,

education and intelligence, advice concerning constitutional rights, length of

detention, whether the questioning was repeated and prolonged in nature, and

whether physical punishment and mental exhaustion were involved.” Ibid.

(quoting Galloway, 133 N.J. at 654). Courts also consider “whether the

defendant has had previous encounters with law enforcement and the period of

time between when Miranda rights were administered and when defendant

confessed.” Ibid. (citing State v. Timmendequas, 161 N.J. 515, 614 (1999)).

      As the Court’s jurisprudence in the separate but related context of

Miranda waivers confirms, the totality-of-the-circumstances analysis rarely

gives rise to bright-line rules invalidating a confession solely because of an

interrogating officer’s conduct. The Court noted in Nyhammer that “[o]nly in

the most limited circumstances have we applied a per se rule to decide whether

a defendant knowingly and voluntarily waived Miranda rights.” 197 N.J. at

403. Instead, the Court relies on “‘fact-based assessments’ under a totality-of-

the-circumstances approach” as “the proper way to decide whether a defendant

voluntarily waived his rights.” Ibid. (quoting State v. Dispoto, 189 N.J. 108,

124-25 (2007)).




                                        5
                                        C.

      As the Court has observed, in contrast to the use of physical coercion,

the “use of a psychologically-oriented technique during questioning is not

inherently coercive.” Galloway, 133 N.J. at 654 (citing State v. Miller, 76 N.J.

392, 405 (1978)). The Court has acknowledged there exists “a natural

reluctance on the part of a suspect to admit to the commission of a crime and

furnish details.” Miller, 76 N.J. at 403. “Efforts by an interrogating officer to

dissipate . . . reluctance and persuade the person to talk are proper as long as

the will of the suspect is not overborne.” Ibid. The Court has held that “[t]he

real issue is whether the person’s decision to confess result[ed] from a change

of mind rather than from an overbearing of the suspect’s will.” Galloway, 133

N.J. at 655 (citing Miller, 76 N.J. at 405). Thus, an assessment of police

conduct is only part of the equation; the court must also determine, considering

the totality of the circumstances, whether that conduct overbore the

defendant’s will. Hreha, 217 N.J. at 383; Galloway, 133 N.J. at 654-55.

“Cases holding that police conduct had overborne the will of the defendant

have typically required a showing of very substantial psychological pressure

on the defendant.” Galloway, 133 N.J. at 656.

      The Appellate Division’s decision in State v. Pillar illustrates

circumstances in which an officer’s promise is deemed significant enough to


                                        6
overbear a suspect’s will. 359 N.J. Super. 249 (App. Div. 2003). There, the

defendant asked, during his custodial interrogation, whether he could tell the

interrogating officer “something ‘off-the-record.’” Id. at 262. The officer told

the defendant he was willing to listen to an “off-the-record” statement. Ibid.

The defendant, reassured that any statement he made would be “off-the-

record,” confessed to the sexual abuse of a child. Ibid. At a suppression

hearing, the officer testified that he “was not sure what ‘off-the-record’ meant”

and commented that he believed “there really is no such thing as off-the-

record” once Miranda warnings have been administered. Ibid. The Appellate

Division concluded that the officer’s promise, “which defendant could

reasonably believe meant that the statement would not be used against him,

clearly had the likelihood of stripping defendant of his ‘capacity for self-

determination.’” Id. at 272-73 (quoting Schneckloth v. Bustamonte, 412 U.S.

218, 225-26 (1973)).

      In two cases, the Court has considered the totality of the circumstances

and found that psychological tactics used by police in interrogating a suspect

did not overbear his will. In Galloway, a police officer represented to the

defendant that he needed to know how a child victim was injured so that

doctors could properly treat the child; in fact, the officer’s sole objective was

to obtain the defendant’s confession. 133 N.J. at 639, 653. Rejecting the


                                         7
defendant’s argument that his statement was involuntary, the Court concluded

that even though the detective had used “a deliberate act of deception to secure

a confession,” id. at 653, he had not exerted “very substantial psychological

pressure” or overborne the defendant’s will, id. at 656. The Court relied on the

defendant’s comment, while waiting to hear whether the child victim would

survive, that he was concerned about getting “blamed for this,” as well as on

the fact that defendant was asked to go to the police station to give a statement

and had been repeatedly administered Miranda warnings. Id. at 657.

      In Miller, an interrogating officer assured the suspect in a murder

investigation that the perpetrator was not a person who should be punished, but

instead merely needed medical treatment. 76 N.J. at 398. The officer assured

the defendant that “he would do all he could to help [the] defendant but that

[he] had to help himself first by talking about it.” Ibid. “The officer said that

[the] defendant was not being completely honest with him,” and asked, “you

killed this girl didn’t you?” Ibid. The defendant disputed the officer’s

assertion, and the officer stated for a second time, “You’ve got to tell me the

truth. I can’t help you without the truth.” Ibid. After the defendant’s story

regarding how the victim had been killed was shown to be incredible, the

officer stated for a third time, “be truthful with yourself.” Id. at 399. As the

Court recounted the interrogation:


                                        8
            [The] [d]efendant began to waver in his denial, saying,
            “This is going to kill my father.” Seizing on the
            reference to his father, the officer said, “[i]f the truth is
            out, he will understand. That’s the most important
            thing, not, not what has happened, Frank. The fact that
            you were truthful, you came forward and you said, look
            I have a problem. I didn’t mean to do what I did. I
            have a problem. This is what’s important, Frank.”
            Defendant then confessed.

            [Ibid. (third alteration in original).]

      As the majority notes, ante at ___ (slip op. at 35-37), the Court viewed

the interrogator’s psychological technique in Miller to be “mov[ing] into a

shadowy area,” and cautioned that the technique employed, “if carried to

excess in time and persistence, can cross that intangible line and become

improper.” 76 N.J. at 404. It concluded, however, that as used in Miller, the

technique did not cross such a line. Ibid. The Court noted that the previously

convicted defendant “was in no way deluded or misled into believing that the

[questioner] was acting in any capacity other than as an interrogating police

officer in the investigation of a serious crime.” Ibid. It also observed that the

interrogation was less than an hour long, and that the distress manifested by

the defendant after confessing was not abnormal in light of the “enormity” of

the offense. Ibid.

      Reviewing the defendant’s habeas corpus petition, the United States

Court of Appeals for the Third Circuit affirmed this Court’s reasoning. Miller


                                         9
v. Fenton, 796 F.2d 598, 613 (3d Cir. 1986). The Third Circuit expressed

“little doubt that [the interrogating officer’s] encouraging words . . . helped

[the defendant] to reach his decision to unburden himself.” Ibid. The court

concluded, however, that the technique “did not produce psychological

pressure strong enough to overbear the will of a mature, experienced man, who

was suffering from no mental or physical illness and was interrogated for less

than an hour at a police station close to his home.” Ibid.

                                        II.

                                        A.

      In this case, the trial judge did precisely what this Court’s decisions

direct that she should do. She held a two-day hearing pursuant to N.J.R.E.

104(c), during which she viewed L.H.’s videotaped confession and considered

other testimonial and documentary evidence. As the transcript of that hearing

reflects, the judge critically reviewed the evidence presented by the State.

      The trial judge then made detailed factual findings which were recorded

on eleven transcript pages and supported with citations to testimony from the

hearing. Those factual findings -- many of which are omitted from the

majority opinion -- fully support the trial court’s determination of

voluntariness.




                                        10
      The trial judge accepted the uncontroverted testimony of the lead

investigator, Detective Lieutenant Krentz of the Bloomfield Police

Department, that he administered Miranda warnings to defendant, who signed

a Miranda card. The judge rejected defendant’s argument that the confession

should be suppressed because he was not informed until more than an hour

into the interrogation about the sexual offenses that prompted his arrest and

interrogation.

      The trial judge made detailed findings as to the conditions of defendant’s

interrogation and his demeanor during that interrogation. She noted that

defendant was offered food, water, and the use of bathroom facilities during

the interrogation, and that the officers took a break during the inquiry to install

a second recording disk. The judge found that “defendant, throughout the

statement, appears to be calm and in no physical distress,” and that “at times

[he] could be seen laughing with the detectives as he tries to seemingly

convince them of his lack of ill-intent towards the women he assaulted.” The

judge observed “a back and forth discussion” between defendant and the

detectives, in which defendant was “intent on minimizing his conduct during

the encounters” with the victims, “explaining often that he wasn’t attempting

to hurt anyone.”




                                        11
      The trial judge acknowledged the detectives’ psychological tactics,

including “the promises made by the detectives of help[,] not jail.” She stated

that her evaluation of those tactics relied on “a weighing of the circumstance

of pressure against the power of resistance of the person confessing.”

      In that context, the trial judge invoked several of the factors identified in

this Court’s decisions as relevant in a “totality of the circumstances” inquiry.

See Hreha, 217 N.J. at 383; Knight, 183 N.J. at 462-63; Galloway, 133 N.J. at

654; Miller, 76 N.J. at 402-05. The judge noted defendant’s maturity and

college education. She cited defendant’s status as a registered sex offender

under Megan’s Law, N.J.S.A. 2C:7-1 to -23, observing that “[h]e is no stranger

to custodial interrogation or [to] this type of proceeding.” The court found that

the length of the interrogation -- three hours -- was not excessive “given the

multiple victims and offenses covered during the interview.” She found that

those factors weighed in favor of a finding of voluntariness.

      The trial judge substantially relied on defendant’s own words, noting his

tone and demeanor as he said those words. She inferred from defendant’s

comments during the videotaped interrogation that he understood the

consequences of a confession. She found significant defendant’s statement

that in a prior case, he had made a statement to police that “caused him to end

up in jail and cost him time and contact with his family.” The judge noted that


                                        12
despite defendant’s observation that what he was saying could get him “into

trouble,” he chose to continue talking with the detectives. She commented that

when defendant gave his version of the sexual assaults, he “attempt[ed] to

distance himself with denials of the more violent aspects of the assault,” thus

confirming that he -- not his interrogators -- controlled the flow of information

in their exchange. She cited defendant’s question to the detectives whether the

victims’ accounts of the sexual assaults comported with his own.

      Based on those factual findings, the trial court concluded that, under the

totality of the circumstances, the detectives’ tactics did not overbear

defendant’s will and defendant’s confession was voluntary.

                                        B.

      I agree with the majority that in a portion of the interrogation, the

interrogating officers traversed the line that separates proper psychological

tactics from inappropriate assurances. Implying that defendant’s prior

experience with the criminal justice system would not be duplicated in this

case, the officers suggested that the counseling defendant needed would be

delivered in a setting other than jail, because “[n]obody gets rehabilitated in

jail.” See ante at ___ (slip op. at 33). They also told him that he was “not at

all” going to jail that night. See ante at ___ (slip op. at 33). The officers went

beyond a mere commitment to arrange mental health counseling and instead


                                        13
tethered the prospect of such counseling to a suggestion that defendant would

not be incarcerated -- at least not in the short term. Their statements were

improper.

      The Court has never held, however, that a police officer’s inappropriate

offer of counseling without incarceration gives rise to a per se rule barring the

suspect’s confession. See Nyhammer, 197 N.J. at 403 (noting the rarity of per

se rules governing the question whether a Miranda waiver was knowing and

voluntary). Instead, the inquiry is whether, considering the totality of the

circumstances, defendant’s will was overborne by the psychological tactics

used in his interrogation. Galloway, 133 N.J. at 655; Miller, 76 N.J. at 405.

      In my view, the trial court’s finding that defendant’s will was not

overborne -- and that his confession was voluntary -- should be affirmed,

because that finding was grounded in sufficient credible evidence in the

record. See S.S., 229 N.J. at 374; Hreha, 217 N.J. at 382; Hubbard, 222 N.J. at

268; Locurto, 157 N.J. at 471.

      The trial court properly considered defendant’s maturity, intelligence,

education, and prior experience with the criminal justice system as providing

important context to his videotaped interrogation. Before he set foot in the

Bloomfield Police Department interrogation room, defendant had experienced

firsthand the consequences of admitting to police officers that he had


                                       14
committed a sexual assault. As his interrogation revealed, defendant fully

understood the serious offenses for which he was investigated. He had every

reason to disbelieve the officers’ suggestion that the outcome of the

investigation might be counseling rather than a custodial sentence.

      In the videotaped record of his interrogation, defendant’s skeptical

reaction to the officers’ cajoling comments is on display. He invoked his prior

experience with law enforcement to challenge the officers’ ingratiating

remarks. From start to finish, defendant’s demeanor was consistent; he was at

all times alert, confident, and assertive. 1 His confession -- obtained without


1
  The majority finds it significant that defendant “was arrested at 2:30 a.m.,
transported to headquarters, and remained handcuffed in a room or confined in
a cell for the next three hours,” at which point he was interrogated. Ante at
___ (slip op. at 38). It notes that defendant stated that he was “tired as hell,”
but omits defendant’s immediately preceding comment that he was “all right,”
as well as his refusal of the officers’ offer of food and drink. To the extent
that the majority infers that sleep deprivation is relevant to the question of
voluntariness in the circumstances of this case, any such suggestion
contravenes prior case law. See, e.g., W.B., 205 N.J. at 598-600 (holding that
the defendant’s confession was properly admitted although he waited in an
interrogation room from 11:00 p.m. to sometime after 2:00 a.m. before being
questioned, and did not confess until 3:40 a.m.); Timmendequas, 161 N.J. at
617-18 (holding that the defendant’s forty-four hour interrogation, which
began at 12:30 a.m., did not warrant suppression of his interrogation as the
questioning was not “round the clock,” the defendant was afforded breaks, and
the defendant never indicated that he was too tired or hungry to continue);
Galloway, 133 N.J. at 638-39, 657 (ruling that the defendant’s confession was
voluntary even though he was questioned early in the morning after a sleepless
night, and noting that “[a]lthough defendant may not have slept that night, he
did not appear tired”).

                                        15
repeated or prolonged questioning, intimidating conduct by the police, or

physical abuse -- closely followed the administration of Miranda warnings.

      Significantly, defendant did not simply affirm the officers’ allegations,

but maintained control of his narrative. Defendant supplied critical details

about the time, location, and circumstances of each offense -- details that the

officers did not provide him. He declined, however, to admit to an important

aspect of two of the crimes: that each victim was abducted on the street and

dragged to a secluded location, where each was sexually assaulted. Instead, he

stressed to the officers that he treated those two victims with kindness and

courtesy before, during, and after the sexual assaults. He suggested that once

he initiated sexual contact, neither victim objected. By defendant’s account,

only the third victim -- whose screams and physical resistance foiled his

attempt to kidnap and sexually assault her -- was unwilling to engage in sexual

conduct with him. 2 Remarkably, defendant pressed the officers to verify that

his version of the sexual assaults was consistent with the accounts of the

victims.



2
  The majority premises its decision in part on what it characterizes as the
officers’ minimization of the seriousness of the crimes for which defendant
was investigated. See ante at ___ (slip op. at 33). I do not share the majority’s
view that in the setting of this case, it was improper for the officers to establish
a rapport with defendant by commending him for not injuring or killing the
victims.
                                        16
      Defendant’s demeanor and statements were not those of a suspect whose

will was overborne. As in Miller, the interrogating police officers embarked

on perilous ground by promising the defendant that candor would bring him

the help that he needed. See Miller, 76 N.J. at 398-99, 404. In the end,

however, defendant’s decision to confess was clearly his own.

      I consider the trial court’s factual findings, based on the videotape of

defendant’s confession and the other evidence presented at the N.J.R.E. 104(c)

hearing, to be based on sufficient credible evidence in the record. In my view,

the court’s determination of voluntariness and its admission of defendant’s

confession should be affirmed.

                                       III.

      I would affirm in part and reverse in part the Appellate Division’s

determination. Accordingly, I respectfully concur in part with the majority’s

decision, and dissent in part from that decision.




                                       17
