The question we must consider in this case is whether a confession elicited by a private individual is subject to Maryland’s common law requirement of voluntariness. We shall hold that Maryland’s common law voluntariness requirement does not apply to confessions elicited purely by private individuals.
I.
Michael Pappaconstantinou (also known as Pappas) was employed with Auto Row Auto Parts (Auto Row) in Waldorf, Maryland for approximately three years until the company terminated him because it suspected that he had been stealing from the company. Following his termination, Pappas met with several Auto Row employees and signed the following statement:
I, Michael John Pappas wrongfully took merchandise and money from Auto Row Auto Parts. I realize that I was correctly terminated from this establishment. Property was destroyed and incorrectly marked as return item [sic]. I realize that what I did was wrong and I unjustly cause [sic] a lot of difficulties to the members of Auto Row Auto Parts.
Auto Row initiated criminal charges, and Pappas was found guilty by a jury of twelve counts of theft under $300 and one count of theft over $300 in violation of Maryland Code (1957, 1996 Repl.Vol., 1997 Supp.), Article 27, § 342.
Pappas filed a pre-trial motion to suppress his confession, claiming that it was extracted both by threats and by promises not to prosecute, and was therefore involuntary and inadmissible. The trial court declined to address the issue pre-trial, but at the trial, when Pappas renewed his motion to suppress his handwritten confession, the court held a hearing outside the presence of the jury. The trial court concluded that Pappas’ statement, in the nature of an admission, was not “inherently unreliable.” The trial court concluded that under the circumstances of the case, the statement was freely given, constitut *171 ed competent evidence, and hence, was admissible in evidence. Pappas was convicted by the jury.
Pappas noted a timely appeal to the Court of Special Appeals, arguing that his confession was involuntary under Maryland’s common law voluntariness requirement. The intermediate appellate court affirmed, holding that the common law voluntariness test, as enunciated by appellant, was “inapplicable in cases in which a private party has elicited a confession, which is later offered and received in evidence in a criminal prosecution of the confessor.”
Pappaconstantinou v. State,
II.
Pappas argues before this Court that his confession was the result of an improper inducement because his former employers, representatives of Auto Row, promised not to prosecute him. Pappas concedes that there were no state actors involved in eliciting his confession, and as such, no federal constitutional principles are implicated.
See Colorado v. Connelly,
The State’s position is not complicated. The State argues that the Court of Special Appeals properly rejected Pappas’ contention that Maryland’s common law voluntariness test and hence, the Maryland common law rule of exclusion, applies when the defendant confesses to a private person rather than a government agent. The State maintains that the proper standard for determining the admissibility of statements made to private individuals is an evidentiary test, i.e., whether the statement manifests sufficient indicia of reliability.
III.
A confession is admissible in evidence against an accused if it is “(1) voluntary under Maryland non-constitutional law, (2) voluntary under the Due Process Clause of the Fourteenth Amendment of the United States Constitution and Article 22 of the Maryland Declaration of Rights, and (3) elicited in conformance with the mandates of
Miranda.” Ball v. State,
It is only the first requirement for admissibility that is in issue in this case—the admissibility of a statement under
*173
Maryland non-constitutional law. Considerations of federal Due Process and
Miranda
warnings are not implicated when, as here, the defendant is not in police custody, and the confession is elicited through purely private action.
See Connelly,
*174
It has long been the law in this State that before confessions may be admitted in evidence, “that they be not induced by threats or by promise of advantage to be derived from making them; and the burden of showing affirmatively that they were not so induced to be made in any given case is upon the prosecutor.”
Green v. State,
[I]t is very clear upon all the authorities, that if the confession of the appellant had been induced by any threat of harm, or promise of worldly advantage held out to him by Crone, or by his authority, or in his presence and with his sanction, it ought to be excluded.
Id. at 153 (emphasis added).
In the case of
Biscoe v. State,
[T]he witness told the prisoner ‘that it would be better for him to tell the truth.’ ... After full argument of the case, Pollock, C.B., said: ‘When a prisoner has been told that he had better tell the truth, and these expressions are used by, or in the presence of a person in authority, I always reject the evidence.’
Id.
at 8,
In the case of
McCleary v. State,
[Confessions were not to be excluded because they were the admission of the person charged with the commission of a crime, but only where the circumstances were such under which they were made, that a reasonable presumption arises that they might have been induced by a promise or threat from one in authority and consequently were open to the objection that they might not be true.
Id.
at 406,
In
Hillard v. State,
While any decision concerning the voluntariness of a statement necessarily must rest on the facts of the case involved, we nonetheless find that, with regard to promises and other similar forms of inducement designed to elicit a defendant’s confession, this Court, in a series of cases that stretch back into the last century, has established certain boundaries within which police conduct must be contained.
Id.
at 151-52,
A year after
Hillard,
we decided
Stokes v. State,
where we considered,
inter alia,
the question' of whether a promise not to arrest a near relative of the defendant, or a threat to do so, constitutes a form of inducement which will render a resulting statement involuntary.
A finding that an inducement is impermissible, as we determine the one in this case to be, may only result where the challenged statement was produced by police words or deeds which communicated a threat or promise to the defendant.
Id.
at 161,
This Court also considered the common law voluntariness requirement in
Hoey v. State,
Under Maryland nonconstitutional law, a confession is inadmissible unless it is ‘shown to be free of any coercive barnacles that may have attached by improper means to prevent the expression from being voluntary.’ Thus, a confession is involuntary if it is induced by force, undue influence, improper promises, or threats. Whether particular police conduct is deemed improper depends on the totality of the circumstances surrounding the defendant’s confession, and a number of factors should be considered: the defendant’s age and education, the defendant’s physical condition and mental capacity, the length of the interrogation, the manner of questioning, and whether there was any physical mistreatment of the defendant.
Id.
at 483,
Finally, in
Reynolds,
Maryland has followed the old common law rule, which has seemed to adopt a per se exclusion rule that official promises of leniency to a defendant in custody that induce a confession render the confession inadmissible.... If a confession ‘had been induced by any threat of harm, or promise of worldly advantage held out to him by [the interrogating detective], or by his authority, or in his presence and with his sanction, it ought to be excluded.’ Nicholson v. State,38 Md. 140 , 153 (1873).
(Alteration in original) (emphasis added).
See also State v. Kidd,
Our survey of Maryland case law turned up only two cases which arguably support Petitioner’s proposition. The first of these cases is
Watts v. State,
The second case is
Scott v. State,
Preliminarily, we note that the father was not a State agent. The mere fact that no agency relationship existed, however, would not necessarily preclude a finding that the confession was involuntary. In Watts v. State,99 Md. 30 ,57 A. 542 (1904) for example, a reporter’s exhortation to a defendant to confess rendered the defendant’s confession involuntary.
*180 In a recent analysis of the case, the Court of Appeals noted that the plea to confess was made ‘with the sheriff present.’ Hillard,286 Md. at 152 ,406 A.2d 415 .
Scott,
Both Watts and Scott involved confessions elicited in the presence of police while the defendant was in police custody. Neither case stands for the proposition that a confession elicited by purely private conduct is subject to Maryland’s common law voluntariness requirement. Although the language in Scott at first blush might suggest that private conduct may trigger the exclusionary rule, the context requires the conclusion that when a confession is made in the presence of one having legal authority over the accused, and in the language of Nicholson, “with his sanction,” the conduct is not considered private conduct and is sufficient to trigger the common law voluntariness rule.
We hold that Maryland’s common law voluntariness requirement does not apply to confessions elicited by purely private conduct. Consistent with our prior case law, the voluntariness requirement is applicable when a confession is elicited by one in authority, or in his or her presence and with his or her sanction.
IV.
Because we believe that the primary purpose of Maryland’s per se exclusionary rule for involuntary confessions is to protect against government overreaching, we reject Petitioner’s argument that “persons in authority,” or apparent official authority, should not be limited to state actors. We also reject Petitioner’s argument that the rule should include those persons, such as employers, who have “real authority” over the accused and the power to carry out a threat or promise. Exclusion of confessions elicited by purely private persons *181 does not further the goal of protecting citizens from overreaching conduct of police or government.
The fear that a confession elicited by private individuals may be untrue or inherently untrustworthy is properly addressed under the laws governing the admissibility of evidence in this state. As the Court of Special Appeals observed with respect to evidence derived by private persons, “[W]e ask the questions that are the concern of the common law of evidence—Is it competent?, Is it trustworthy?, Will it enhance the accuracy of the verdict?”
Jacobs v. State,
We begin with the proposition that all relevant evidence is admissible. See Md. Rule 5-402 (Relevant evidence generally admissible; irrelevant evidence inadmissible). Relevant evidence “means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Md. Rule 5-401. (Definition of “relevant evidence”). Obviously, evidence that the trial judge deems unreliable or untrustworthy is not probative to any fact that is of consequence to the determination of the case, and hence, is not relevant evidence. In addition, Md. Rule 5-403, Exclusion of relevant evidence on grounds of prejudice, confusion or waste of time, permits a trial judge to exclude evidence if the probative value is substantially outweighed by the danger of unfair prejudice. 3 See also Md. Rule 5-601 (General Rule of competency); 10 Moore’s Federal Practice § 403.02[3] (2d ed. 1984) (“If the relevance of the proffered evidence is suspect or slight but would be prejudicial then any justification of its admission is slight or non-existent.”).
*182
In
McCleary v. State,
The English decisions which have developed the existing practice in excluding admissions are not concerned with their admissibility' as- relevant, but mainly, if not wholly, with their weight. The question is, shall this evidence, admissible as relevant, be excluded because in the opinion of the judge the conditions for the declaration come within those conditions that make such an admission too unreliable to go to the jury? and the decisions illustrate the diverse exercise of this judicial discretion.
Id.
at 408-09,
So, too, today under the laws governing the admission of evidence in this State. The trial judge has the duty and the discretion to decide in the first instance whether under all the circumstances the evidence is admissible. Once the court decides the question of the admissibility vel non of a confession, the defendant is entitled to have the jury hear and consider whether a private person made any threats or promises and whether it had any effect upon him or her in deciding to confess. The jury is entitled to consider this testimony, and give it whatever weight it chooses.
V.
We now turn to the issue of whether the trial court erred in determining that Pappas’ written statement to his employers was sufficiently reliable to be admissible against
*183
him at his trial. In our review of the trial court’s denial of Petitioner’s motion to suppress, we consider only those facts presented during the suppression hearing.
Trusty v. State,
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS TO BE PAID BY PETITIONER.
Notes
. After the Supreme Court’s decision of
Colorado v. Connelly,
. The record does not reflect the professional capacity of Mr. Linzey.
. Md. Rule 5-403 provides:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
