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Implicit or Explicit—Why Do It at All?

We have all dealt with and perhaps made threats and promises in our everyday lives. “You kids cut it out. Don’t make me stop this car!” “If you don’t finish what’s on your plates there will be no dessert.” “When you’ve cleaned your room we’ll go for ice cream.” “If you’re good Santa will bring you presents.”

But the world of threats and promises applied to the interview can compromise the voluntariness of the confession and admissions made by a subject. This is more likely to be challenged in a criminal setting where the state is playing an adversarial role with the subject who is being afforded constitutional protections against government actions. But the voluntariness of the confession can also be challenged in civil proceedings when statements are obtained through the interviewer’s use of threats and promises.


Originally, to determine if the confession was to be excluded from evidence, the courts looked at the trustworthiness of the confession, which was the common law method of viewing admissibility. However, it was the 1936 Brown v. State of Mississippi decision that applied the US Constitution’s Fourteenth Amendment “due process of law” clause to state actions to reverse three Mississippi convictions. In Brown, three black men were repeatedly beaten, hung, and whipped to elicit confessions to the murder of a white farmer. The three were ultimately convicted primarily based on their coerced confessions and sentenced to be executed by the state of Mississippi. The Supreme Court of the State of Mississippi upheld the conviction on technical grounds having to do with the timing of the defendants’ objections to evidence.

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The defendants appealed to the United States Supreme Court, which had never before overturned or reviewed a state confession case. In this case, the defendants’ attorneys argued that the protections of the US Constitution should be applied to the states allowing defendants the right against self-incrimination and due process. The Fourteenth Amendment prevents states from depriving “any person of life, liberty, or property, without due process of law.” This allowed the federal government to review confessions at the state level that were obtained as a result of torture or coercive means.

Brown ultimately led to the “totality of circumstances” view of a confession’s admissibility, which is the current standard used by the criminal courts to determine whether the confession is voluntary.

For a totality of circumstances view of the confession, the court considers the defendant’s age, education, intelligence level, and mental state. In addition, the court considers the length of the suspect’s detention, the style of interrogation, and whether the individual was given his Miranda warnings. Whether the individual had suffered any physical abuse, deprivation of food or sleep, and even if the individual was under the influence of alcohol or narcotics are also now considered before making a decision about the voluntariness of the confession.

The totality of circumstances standard used by the court is also applied to an investigator’s use of threats and promises to determine if the confession is voluntary. In general, the totality of circumstances standard for examining whether a confession is voluntary is confined to state actions where the investigators are law enforcement officers or where a citizen is acting as an agent of the police. If a company investigator conducts an interview at the behest of police, he will likely be acting as an agent of the police, and his words during the interrogation will be viewed along with the circumstances surrounding the conversation to determine if an admission is voluntary.

Threats and Promises

Confessions can be judged involuntary if they are obtained as a result of threats or promises made during the interview. The threat or promise could be explicit, where the investigator clearly states something, or implicit, where the threat or promise is merely hinted. Confessions can also be judged involuntary if they are obtained as a result of explicit threats or promises made to the person. Some examples include:

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  • Tell the truth, and you can keep your job.
  • Get this cleared up, and we won’t prosecute.
  • Get this cleared up, or we will turn this over to the police.
  • Don’t make us take this to the authorities.
  • We’d like to handle this within the company.
  • If you don’t get this cleared up, we will take your kids from you.
  • We’d hate to arrest your wife too.
  • You can’t leave until we get this straightened out.
  • If you don’t confess, then we’ll have to arrest your wife and bring her here from your son’s hospital room.
  • Confess, or we’ll call the police. But if you confess, we can get you free counseling and treatment.
  • You can spend years in prison unless you tell the truth.
  • Even though you are a juvenile, you could get the death penalty.
  • If you don’t tell us what happened, we’ll charge your sixteen-year-old son as an adult, and he’ll be sent to prison.
  • Any information you give us will remain confidential. Your wife will never find out.
  • Just tell us the truth, and you can go back to work.
  • You’ll never get another job if we fire you.
  • We’ll get you medical treatment after you’ve done the right thing.
  • We’ll make sure you get deported back home where they know how to deal with people like you.
  • If you ever want another job, you’d better tell me the truth.
  • This is where you will spend the rest of your life on death row.
  • Here’s a picture of the cell where you will be staying for many years.

The real question—why would you use threats and promises during an interview? When these implicit or explicit threats are made, they highlight and focus the individual’s attention on his basic fears of confessing. This generally increases an individual’s resistance to cooperate. Most people are hesitant to confess because they are afraid of jail, loss of reputation, losing their means of making a living, or retribution. Many times the subject has not even considered the possibility of what may happen after confessing, and now the interviewer has brought it to the surface. We strongly urge you to stay away from making any threats or promises during the interview as they may compromise the voluntariness of the confession or its admissibility.

Confessions Obtained by Private Citizens

Unlike law enforcement officers who are agents of the government, private citizens have limited rights to arrest and question under common law. Confessions made to private citizens are more likely to be judged under common law rule of the confession’s trustworthiness, rather than the “totality of circumstances” used to determine voluntariness and admissibility in criminal law. This question was addressed in Pappaconstantinou v. State. The defendant signed a statement admitting to theft from his employer during an interview with company investigators. The court determined the statement must be viewed not on voluntariness grounds, but rather on whether the confession was or was not trustworthy or reliable.

To this point, the US Supreme Court has not addressed whether a confession obtained by a private citizen could be suppressed on constitutional grounds. However, they have clearly addressed situations where a private citizen is acting as an agent of the police. In situations where a private person is assisting in an investigation with law enforcement, the citizen must follow the rules of the public sector in terms of Miranda warnings and the voluntariness of the statement. Miranda warnings are to regulate police conduct, and every decision relating to Miranda has concluded there must be government involvement in the case to trigger its application. So it is important to determine under the totality of circumstances how the police may have interacted or directed the private citizen to assist in the investigation.

Regardless of whether the police are involved, we believe threats and promises should be avoided since the voluntariness and truthfulness of the confession is critical in the search for truth in an investigation. The confession should be substantiated to support a conclusion the statement is trustworthy and reliable. An interviewer who resorts to threats and promises diminishes his professionalism and potentially endangers the case resolution.

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