A Three-dimensional Model for the Use of Expert Psychiatric and Psychological Evidence in False Confession Defenses Before the Trier of Fact

JurisdictionUnited States,Federal
CitationVol. 26 No. 03
Publication year2003


A Three-Dimensional Model for the Use of Expert Psychiatric and Psychological Evidence in False Confession Defenses Before the Trier of Fact

Major Joshua E. Kastenberg(fn*)


A substantial percentage of criminal trials involve confessions. Empirical jury studies indicate reliance on confessions as evidence.(fn1) However, not every confession is truthful or accurate. Indeed, some confessions admitted into evidence have later been shown to be false. A recent example of false confessions resulting in conviction occurred with the highly publicized 1989 Central Park Jogger case in New York, where five men were found guilty by a court and were only recently exonerated.(fn2) A social science of false confessions has developed to address the issue of false confessions, yet its methodology is anecdotal and incomplete. This Article examines both current law and contemporary studies of false confessions. Both a psychiatry-based (medical model) and psychology-based (social model) approach is analyzed for admission of expert evidence. The analysis is presented in a three-dimensional context. These dimensions include the concepts of admissibility, the right to a complete defense, and the perpetual evolution of case law.

In criminal courts, a defendant has a variety of rights and options regarding the prosecution's use of his confession. For instance, in a pretrial hearing, the defendant is entitled to move for suppression of evidence that is obtained by violating his or her constitutional rights. These motions to suppress customarily involve issues of voluntariness, such as the conditions under which the police obtained the confession. Moreover, in many jurisdictions the defendant may challenge the voluntariness of the confession before the trier of fact at the time of trial. However, once a judge determines a confession is admissible, the latter course is unlikely, because the defendant is essentially admitting to the facts in the confession while attacking police interrogation techniques. Finally, for some time defendants have attempted to challenge the credibility of confessions, in effect alleging that it was false and coerced.

Increasingly, defense challenges to voluntariness and credibility of confessions have come through the use of expert psychology- and psychiatry-based testimony. In some of these cases, the defendant challenges the nature of the interrogation techniques used by the police. Experts testify, without providing specifics into the defendant's state of mind, that the defendant's interrogation encompassed elements present in known false confession cases. In other cases, experts may testify that the defendant has a character of malleability (suggestibility) based on a specific mental illness. The thrust of these cases is that the defendant is susceptible to suggestion and adopts as his own the story suggested by the police.

Part I of this Article delineates a defendant's right to present voluntariness and credibility evidence against his or her confession. This section analyzes the basic constitutional framework of how a defendant can present this evidence and describes the traditional safeguards against false confessions. This background information provides a context for the overarching issue of expert testimony admissibility. Part II provides a basic understanding of differences between the psychiatric (medical model) and psychological (social model) approach to false confessions. It then examines the types of false confession defenses used by defendants and the interrogation techniques challenged by defendants. Part III reviews the general rules of expert witness admissibility under the Frye, Daubert, and Kumho Tire tests. The question of expert witness admissibility hinges somewhat on how narrowly a jurisdiction's expert witness rules are interpreted. Part IV then looks at a cross-section of state and federal cases dealing with the admissibility of false confession testimony. In this section, jurisdictions are divided into four categories based on whether they allow or suppress such evidence. Some of these decisions also involve the scope of rebuttal. Rebuttal evidence is of particular importance because few courts (and fewer articles) have analyzed the issue. Finally, Part V presents a hypothetical scenario, providing analytic context for the entire Article. As a conclusion, this section also details what is required to ensure a fair and impartial trial.(fn3)




A. Defining Voluntariness, Interrogation, and Custody: Basic Legal


Prior to any discussion of a defendant's constitutional right to challenge the credibility of his of her confession before the trier of fact, it is helpful to briefly examine the twin issues of custody and interrogation. This is because the trier of fact does not determine the admissibility of a confession. Once the trier of law admits a confession into evidence, the trier of fact is charged with the task of weighing that evidence by determining the amount of credibility it should be afforded.(fn4) However, as in the case of any other testimonial or written evidence, the defendant is not relegated to accepting its authenticity or truth. In the realm of confessions, evidence reflecting issues of voluntariness before the trier of law are, if the defense so chooses, generally "fair game" before the trier of fact.

A suspect's constitutional rights limit the extent of police interrogation. For example, a suspect has the right to remain silent or seek advice of counsel during a custodial interrogation.(fn5) Although custody has not been defined per any one case, there are several factors used to determine both actual and de facto custody.(fn6) Some, but by no means all, of these factors include the presence of probable cause to arrest,(fn7) the subjective intent of the officers,(fn8) the subjective belief of the accused,(fn9) the site and physical surroundings of the interrogation,(fn10) the confrontation of the suspect with evidence of guilt,(fn11) the focus of the investigation,(fn12) the language used to summon the accused,(fn13) the duration and nature of the interrogation,(fn14) and whether the accused was permitted to leave either during or following the interrogation.(fn15) Most of these factors are interrelated, in that faulty interrogations usually contain multiple problems. Indeed, an overview of case law demonstrates that reversal of a conviction is rare when only one of these factors is alleged to be in error.

Interrogation is defined as "questioning initiated by a law enforcement officer."(fn16) There are forms of interrogation that do not involve direct questioning. For example, in Rhode Island v. Innis,(fn17) police accompanying a suspect in a law enforcement vehicle, who had earlier asserted his right to silence, held a conversation between themselves.(fn18) The suspect then included himself in the conversation and actually inculpated himself.(fn19) Although the trial court found the confession voluntary, the confession was challenged on appeal.(fn20) While the Court acknowledged that the term "interrogation," expands beyond the limits of formal questioning, it determined that the confession was voluntary.(fn21) There are a variety of instances where the functional equivalent of formal questioning comes under special scrutiny, such as undercover police questioning(fn22) and exigent circumstances.(fn23) However, such scrutiny does not automatically result in suppression, and in most instances, good faith by the police will overcome a defendant's objection to admissibility.(fn24)

In theory, once a constitutional right is invoked, all questioning of the suspect must cease.(fn25) Likewise, a law enforcement agent must notify a suspect of these rights within a reasonable amount of time after placing the suspect in custody.(fn26) However, if the suspect does not invoke his right to remain silent, law enforcement agents are permitted to question a suspect with only a few limitations, such as not using coercion and duress.(fn27) For instance, law enforcement agents may embellish the state of evidence against a suspect.(fn28) Likewise, a variety of ruses and trickery is permitted in various jurisdictions.(fn29) As a result, a "science" of interrogations has developed.(fn30) Generally, embellishments and ruses in interrogation techniques will not preclude a confession's admissibility.(fn31) This is because courts have usually accepted that some artifice, deceit, or trickery is valid in obtaining a confession.(fn32) However, when a trial judge determines the issue of admissibility in the voluntariness context, the defendant can raise the confession credibility defense before the trier of fact.

B. Confession Corroboration Rule

Even when proper interrogation procedures are utilized, a confession alone is not enough to sustain a conviction.(fn33) A confession must also be sufficiently corroborated by other evidence to be deemed reliable, though it is not necessary that the prosecution corroborate every element of the charged offense.(fn34) Rather, the prosecution must show by independent evidence that the confession is sufficiently reliable to be truthful.

The corroboration rule existed before the...

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