Induced confession / incest

Anderson Police Detective Cole gave Larry L. McGhee some misleading advice as he was investigating a criminal incest allegation. McGhee first denied having sex with his 25-year-old niece, and then the following exchange took place:

Cole: What I do know is, that we’re starting, me and you, man to man talking about this, I’m telling you right now, if you had sex with her and she wanted it and it’s embarrassing sometimes for an uncle to have sex with his niece, but it’s not against the law if she wanted it.

McGhee: Right.

Cole: That’s why I’m asking you now, I want you to clear your name.

McGhee: Right.

McGhee v. State, 899 N.E.2d 35, 37 (Ind. Ct. App. 2008)

McGhee proceeded to confess, and that confession was used by prosecutors in obtaining a conviction against him. On appeal, the conviction was overturned based on the police investigator’s misrepresentation that sex between an uncle and his niece was not a crime. While the appellate court recognized the detective’s assertion that he did not know at the time that sex between an uncle and a niece would be illegal, the court still found that McGhee’s resulting confession should not have been admitted into evidence at trial.

The court noted the state relied upon Clark v. State, 808 N.E.2d 1183, 1191-92 (Ind. 2004), where the high court held that “if the police have a good faith basis for a statement, even if technically false, it does not rise to the level of deception.”

But even without any showing falsity, the appellate court rejected the state’s argument. “We would set a dangerous precedent if we were to hold that a lack of knowledge of the law amounts to a good faith basis for a material misstatement. Such a holding would give police officers an incentive to not know the law,” the appellate court held, concluding that McGhee’s confession was involuntary. McGhee, 899 N.E.2d at 37.

In a 3-2 decision, with Justices Shepard and Sullivan in the minority, the Indiana Supreme Court declined to accept the case on transfer, leaving the appeals court’s decision intact.

For McGhee, however, the victory was less than complete. The appellate court remanded the case, finding that given the strength of the evidence against him, re-trial would not violate the constitutional bar on double jeopardy.