RILEY, J.
McGhee argues that his confession was involuntary because Detective Cole obtained it by using “misrepresentations of fact and promises of leniency.” (Appellant’s Br. p. 4). Specifically, he notes that, during the videotaped interview, Detective Cole told McGhee that “it’s embarrassing sometimes for an uncle to have sex with his niece, but it’s not against the law if she wanted it.” (State’s Ex. 7). According to McGhee, his confession was obtained as a result of Detective Cole telling him that his conduct was not criminal, rendering the confession involuntary and inadmissible. We agree.
In Ashby v. State, 265 Ind. 316, 354 N.E.2d 192 (1976), the defendants were arrested on suspicion of inflicting injury during the course of a robbery, which carried a possible life sentence. While the defendants were in custody, the officer in charge of the case took the case file to a deputy prosecutor. It was decided that the State would accept a ten-year sentence in lieu of a life sentence, and the charge was filed. The officer then returned to the defendants and told them that they would get a ten-year sentence instead of a life sentence if they would admit their actions and plead guilty. The defendants confessed to the crime, but, for unknown reasons, the case eventually proceeded to a trial instead of being disposed of via guilty plea. The defendants’ confessions were admitted into evidence at trial, and they were convicted and sentenced to life in prison.
The defendants appealed, arguing that their confessions should not have been admitted into evidence because they were induced by a promise to mitigate punishment. They contended that the introduction of their confessions at trial was in violation of the privilege against self-incrimination guaranteed by the Fifth Amendment to the United States Constitution. In analyzing the defendants’ argument, our supreme court stated:
It is a clear constitutional principle that a confession or admission of the accused is inadmissible if it was obtained by a promise of immunity or mitigation of punishment. The test in resolving a Fifth Amendment claim resting upon the Self-Incrimination Clause . . . is . . . : A confession, in order to be admissible, must be free and voluntary: that is, not obtained by any direct or implied promises, however slight. A coerced confession claim, whether founded on a promise of immunity or otherwise, always involves this question: did the governmental conduct complained of bring about a confession not freely self-determined?
Id. at 320-21, 354 N.E.2d at 195 (citations omitted, formatting altered). The court concluded that the defendants’ confessions were “brought about” by the officer’s representation that their punishment would be mitigated and that “[s]tatements induced by such representations are not freely self-determined.” Id. at 322, 354 N.E.2d at 196. Because the defendants’ confessions were involuntary and inadmissible, the court reversed their convictions and remanded for a new trial. Id., 354 N.E.2d at 196.
We see negligible wiggle room between our supreme court’s holding in Ashby and the circumstances presented in this case. For the first few minutes of the videotaped interview, McGhee absolutely denied having had sex with K.O. Then, after Detective Cole told McGhee that sex with his niece was “not against the law if she wanted it” and that he wanted to clear McGhee’s name, McGhee confessed to having sex with K.O. (State’s Ex. 4). At the very least, Detective Cole’s comments constituted an implied promise that McGhee would not be prosecuted if he admitted to having sex with K.O. and it turned out that the sex was consensual. Obviously, that was a promise that Detective Cole, like the officer in Ashby, could not keep. McGhee’s confession was brought about by Detective Cole’s misstatement of the law and was therefore involuntary and inadmissible.
The State emphasizes the fact that Detective Cole was not being intentionally deceptive. Detective Cole testified at the hearing on McGhee’s motion to suppress that, at the time of his interrogation of McGhee, he did not know that incest is a crime when the parties are both adults. McGhee makes no argument on appeal that Detective Cole was being intentionally deceptive. Regardless, Ashby instructs that, when addressing the voluntariness of a confession, the interrogator’s knowledge or intent, or lack thereof, is irrelevant. In Ashby, the officer’s representation to the defendants-that they would receive a reduced sentence if they confessed-was accurate, at least as far as the officer knew; he was told by a deputy prosecutor that the State would accept a ten-year sentence. The truth of the matter, however, was that the police and the prosecutor could not guarantee a reduced sentence, as any plea agreement would first have to be approved by the trial court. Likewise, in this case, Detective Cole honestly believed that sex between adults is never against the law if it is consensual. He was wrong, and the State offers no valid reason why McGhee should be made to suffer the consequences of Detective Cole’s mistake.
BAILEY, J., concurs.
BRADFORD, J., dissents with separation opinion:
Given the nature of the statement at issue, in my view the trial court was fully justified in concluding that it did not constitute a direct promise of immunity or leniency. To the extent the statement constituted an indirect promise to that effect, I am unpersuaded that it rendered McGhee’s confession involuntary. I would affirm the judgment of the trial court.