“To declare that in the
administration of the criminal
law the end justifies the means
… would bring terrible
retribution. Against that
pernicious doctrine this Court
should resolutely set its face.”
Justice Louis D. Brandeis,
dissenting in Olmstead v. United
States, 277 U.S. 438, 485 (1928)
“What happens behind doors
that are opened and closed at
the sole discretion of the police
is a black chapter in every
country – the free as well as the
despotic, the modern as well as
the ancient.”
Justice William O.
Douglas (the
longest-serving
Supreme Court
Justice in U.S.
history), concurring in
United States v.
Carignan, 342 U.S. 36,
46 (1951)
“It is a fair summary of
history to say that the
safeguards of liberty have
frequently been forged in
controversies involving not
very nice people.”
Justice Felix Frankfurter,
dissenting in United States v.
Rabinowitz,
339 U.S. 56,
69 (1950)
“If a person is
innocent of a
crime, then he is
not a suspect.”
then Attorney General Edwin Meese
explaining to the American Bar Association
why the Miranda decision enabling those
arrested to be advised of their rights was
not necessary anymore (From The 776
Stupidest Things Ever Said
(p. 100), by R. Petras and
K. Petras, 1993, New York:
Doubleday.)
Clinical Forensic
Psychology in Cases
involving Disputed
Confessions
Referral question:
To what legal question(s)
will your data and opinions
be applied?
1. Did the State fail to prove,
by a preponderance of the
evidence, that the
defendant knowingly,
intelligently, and voluntarily
waived his or her Miranda
rights?
2. Did the State fail to prove,
by a preponderance of the
evidence, that the
defendant’s supposed
confession was freely and
voluntarily made under the
totality of the circumstances?
3. Should the Court
suppress the defendant’s
coerced statements to the
police because they are so
highly unreliable and
virtually uncorroborated?
Legal Question #3
Operationalized
3 (a) Did the interrogators
use techniques of a type
that have contributed to
known false confessions in
other cases?
Did the interrogators use
• coercion?
• deception?
• etc.?
3 (b) Did the interrogators
use techniques likely to
produce a reliable
confession statement?
Did the interrogators
• record the entire
interrogation?
• scrupulously avoid
contaminating the suspect’s
mind?
• elicit a detailed postadmission narrative?
3 (c) Does the suspect’s
confession statement
show guilty knowledge?
Each of these three legal
questions can be subjected
to a person-situation
analysis:
Who is the person? What
are his strengths and
weaknesses; his
knowledge, skills and
abilities?
What was the person’s
mental and physical state
at the relevant time
• warning and waiver?
• during police pressure?
• while confessing?
What was the setting – the
physical and psychological
characteristics of the scene
where the interrogation
and confession occurred?
What techniques did the
police use to influence the
suspect?
Consider the likely impact
of police pressure in that
setting on that suspect.
Clinical Assessment of the
Suspect cum Defendant
Some psychologists, by
virtue of their knowledge,
training, and experience, are
able to assist the court in
each of the following areas:
1. Gather and analyze
information regarding “the
physical and psychological
environment in which the
[waiver] was obtained”
(Crane v. Kentucky, 1986, p.
684).
2. Assess the defendant’s
current mental status,
including intelligence,
memory, reading
comprehension, listening
comprehension, and
psychopathology.
3. Reconstruct the defendant’s
mental state at the time of the
waiver (similar to the type of
assessment in insanity and
other mental-state-at-thetime-of-the-offense
evaluations; see, e.g., Rogers &
Shuman, 2000).
4. Assist the judge in
understanding
interactions
among
the above.
For suggestions/guidance
on how to conduct the
clinical assessment in
disputed confession
cases, see …
DeClue, G. (2005). Interrogations
and Disputed Confessions: A
Manual for Forensic Psychological
Practice. Sarasota, FL: Professional
Resource Press.
See especially:
• Chapter 8
• Assessment Procedures
(begins p. 147)
• Soddi Jones Sample
Report (appendix)
What about interrogations by military and
intelligence agencies?
http://kspope.com/interrogation/index.php
False Confessions
Introduction
Nutshell
Some people falsely confess
to some crimes some times.
Some of those people begin by
denying guilt, then during police
interrogation say, “I did it,” then
afterwards say, “No, I didn’t.”
U. S. courts provide two
opportunities to challenge disputed
confessions. At a suppression
hearing the defense can present
evidence challenging the
voluntariness of the confession
and/or whether the defendant gave
a knowing, intelligent, and
voluntary waiver of his
Constitutional rights prior to
interrogation.
At trial the defense can present
evidence challenging the
accuracy of the confession.
At both stages psychologists
are called upon to present
expert testimony, either at the
request of the defense or the
prosecution.
Importance of DNA Evidence
DNA profiling can identify the
guilty and exonerate the
innocent
9 a.m. Monday
September 15, 1984
Sir Alec Jeffreys
He used DNA profiling to
establish the identity of a man
who raped and killed two 15year-old girls, three years
apart, near the village of
Narborough, in England.
The police collected blood
from all the adult males in
and around Narborough and
Jeffreys successfully
identified the culprit. Colin
Pitchfork became the first
criminal ever apprehended on
the basis of DNA profiling
When the local police
contacted Jeffreys to consult
on the Narborough case, they
had already arrested a 17year-old kitchen assistant
who had a record of minor
sex offenses.
During their interrogation of
him he confessed to one of
the murders, but not the
other.
Jeffreys’ analysis showed
that the same man had
committed both rapes, but it
was not the man who had
confessed.
“The police subsequently
dropped the case against that
man,” says Sir Alec, “and he
became the first person ever
proven innocent by DNA
analysis. If we hadn’t
developed the technology, I’m
confident he would have been
gaoled [jailed] for life.”
In 1996, the FBI reported that
in sexual assault cases in
which DNA results could be
obtained, the DNA evidence
exonerated the primary
suspect in 25% of the cases.
These days, the use of DNA
profiling sees 30 per cent of
accused in British rape cases
exonerated.
Limitations of DNA Evidence
Although DNA testing can
allow some falsely accused –
and some falsely convicted –
people to prove their
innocence, in most cases
there is no biological
evidence to test, or none
suitable for DNA testing.
It is therefore critical to study
cases where innocent people
have been convicted and to
identify what errors led to the
wrongful convictions, so that
the risk of such errors can be
minimized in the future.
Psychological Studies of
Interrogations and Confessions
The psychological study of
interrogations and
confessions is nearly 100
years old:
Hugo Munsterberg (1908). On
the Witness Stand. Garden City,
New York: Doubleday.
Drizin and Leo (2004):
“a rich literature and body of
knowledge regarding
interrogations and confessions.”
laboratory experimentation,
for example:
Kassin, S. & Neumann, K. (1997).
On the power of confession
evidence: An experimental test of
the fundamental difference
hypothesis. Law and Human
Behavior, 21, 469-484.
participant observation,
for example:
Leo, R. (1996). Inside the
interrogation room. Journal of
criminal law and criminology, 86,
266-303.
interviews, for example:
Leo, R. Police interrogation in
America: A Study of Violence,
Civility, and Social Change. (1994).
Unpublished Doctoral Dissertation,
on file with the North Carolina Law
Review.
analyses of archival and
documentary records,
for example:
Ofshe, R. & Leo, R. (1997). The
decision to confess falsely: Rational
choice and irrational action. Denver
University Law Review, 74, 9791122.
surveys, for example:
Leo, R. A., Kassin, S. M., Richman,
K. D., Colwell, L. H., Leach, A., La
Fon, D., & Meissner, C. Police
Interviewing and Interrogation:
Toward a National Self-Report
Survey of Police Practices &
Beliefs. American Psychology-Law
Society, March 2006.
Frequency of False Confessions
in Cases of Wrongful Conviction
Bedau and colleagues:
416 cases of wrongful conviction
• capital or potentially capital
crimes
• 40% were sentenced to death
Bedau, H. A. & Radelet, M. L.
(1987). Miscarriages of justice in
potentially capital cases.
Stanford Law Review, 41, 21-179.
Causes of these miscarriages
of justice:
• perjury by prosecution
witnesses
• mistaken eyewitness testimony
• false confessions (14%)
Subsequent studies have
found the percentage of false
confessions in the
miscarriages-of-justice
studies to be even higher
(Drizin & Leo, 2004).
The Percentage of False Confessions in
Prior Studies of Wrongful Convictions
Authors and Year
Number of False
Confessions
Percentage of
Cases Studied
Bedau & Radelet
(1987)
49/350
14%
Connors et al.
(1996)
5/28
18%
Scheck, Neufeld,
& Dwyer (2000)
15/62
24%
Innocence Project
(2003)
35/140
25%
A study of 125 cases of proven
false confessions
Drizin, S. & Leo, R. A. (2004). The
Problem of False Confessions in the PostDNA World. North Carolina Law Review,
3, 891-1008.
How do we know that the wrong
person confessed?
• crime never happened
• physically impossible
• true perpetrator identified
• scientific evidence, e.g., DNA
Type of
Exoneration
Persons
Exonerated
Page in Leo &
Drizin (2004)
No Crime
Occurred
Dianne Tucker,
Medell Banks,
Victoria Banks
925
Physical
Impossibility
Mario Hayes,
Miguel Castillo,
Peter Williams
925-926
Scientific
Evidence
Christopher Ochoa
926
True Perpetrator
Identified
Michael Crowe,
Joshua Treadway,
Aaron Houser
926
Drizin & Leo (2004) Table 11
Source of Exoneration (N = 125)
Type of
Exoneration
Number of
People
Percent
No Crime
Occurred
8
6%
Physical
Impossibility
11
9%
Scientific
Evidence
57
46%
True Perpetrator
Identified
92
74%
Age of Proven False Confessors
Age Range
Number of people
percent
< 10
2
2%
10-13
5
4%
14-15
15
13%
16-17
18
16%
18-24
31
27%
25-39
34
30%
40-54
7
6%
55
1
1%
All Reported Crimes to Which Person Confessed
Crime
Number of people
Percent
Murder
101
81%
Rape
33
26%
Robbery
23
18%
Arson
7
6%
Assault
4
3%
Kidnapping
2
2%
Theft
2
2%
Routine Police Interrogations
• more than 90% last less than two
hours
• Leo, R. (1996). Inside the interrogation room.
Journal of criminal law and criminology, 86,
266-303.
In contrast, interrogation-induced
false confessions
• lengthy interrogations
• innocent suspect’s resistance is
worn down
• coercive techniques
• suspect is made to feel hopeless,
regardless of innocence
Fate of False Confessors (N = 125)
Fate
Number of people
Percent
Never Charged
10
8%
Charges
Dropped
64
51%
Acquitted at
Trial
7
6%
Pled Guilty
14
11%
Convicted at
Trial
30
24%
Risk of a Miscarriage Attributable to a
False Confession (N = 125)
Outcome
Number
Released Prior
to Decision
74 (59%)
Pled Guilty
14 (11%)
Acquitted at
Trial
Convicted at
Trial
Totals
7 (6%)
Risk of a
Risk of ConMiscarriage viction at Trial
11%
19%
30 (24%)
24%
125 (100%)
35%
81%
Drizin & Leo (2004)
Conclusions and
Recommendations
“Modern psychological
interrogation techniques can
cause innocent suspects to
confess.”
Found Guilty:
• 81% of the innocent defendants
who chose to take their case to trial
• 86% of the innocent defendants
whose charges were not
dropped/confessions were not
suppressed
Jurors often place almost blind faith
in the evidentiary value of
confession evidence – even when
• no credible corroboration
• compelling evidence of the
defendant’s factual innocence
Recommendations
Regarding Interrogations:
Electronically record the
entire interrogation
3 reasons:
First:
an objective, comprehensive, and
reviewable record of the
interrogation
This avoids “swearing contests.”
The fact-finding process
becomes more accurate and
reliable.
Second:
a higher level of scrutiny to
deter police misconduct
This increases the ability of
police to separate the innocent
from the guilty.
Third, opportunity to identify:
• “guilty knowledge”
• contamination
• coercion
The Causes of Police-Induced
False Confessions
Why do Suspects Confess?
“For both innocent and guilty
suspects, confessing is
something neither would have
chosen to do prior to the start
of the interrogation and
something each would have
predicted he would have
resisted to his last breath”
(Ofshe & Leo, 1997, p. 194).
Nevertheless, 40% to 70% of
interrogated suspects do
confess.
Gudjonsson: “The suspects’
behavior during the
interrogation is likely to be
more influenced by their
perceptions, interpretations,
and assumptions about what
is happening than by the
actual behavior of the police.
…
Gudjonsson: “When the
suspect perceives the
evidence against him as
being strong he is more likely
to confess, believing that
there is no point in denying
the offense.”
… For both innocent and
guilty suspects, confessing is
something neither would have
chosen to do prior to the start
of the interrogation and
something each would have
predicted he would have
resisted to his last breath”
(Ofshe & Leo, 1997, p. 194).
How Interrogators Get
Suspects to Confess
Accusatory interrogation
proceeds systematically with one
goal:
to obtain a confession from
whomever has been selected as
a suspect.
Modern American interrogations
employ psychological techniques
that “produce false confessions
because they convince innocent
suspects that their situations are
hopeless just as surely as they
convince the guilty that they are
caught.”
(Ofshe & Leo, 1997, pp. 194-195).
When there is solid evidence
linking the suspect to the crime:
• use that evidence
• along with additional,
fabricated evidence
• to persuade the suspect that
there is an airtight case.
When solid evidence is lacking:
• deception
• interpersonal dominance
Ofshe and Leo (1997) describe
two phases of interrogation
• pre-admission phase
– voluntariness
• post-admission narrative
– reliability
Three steps in the preadmission phase
• the decision to allow questioning
• shifting the suspect from
confident to despairing
• eliciting the confession
A skilled interrogator will
• carefully conserve his supply of
real evidence
• introduce something new in
response to each objection
“airtight case”
What effect does this process
have for an innocent suspect?
“The interrogator will reject the
innocent suspect’s denial just as
he would if it were made by a
guilty suspect—by expressing
great confidence in the reliability
of the evidence, assuring the
suspect that no mistake is
possible.”
(Ofshe & Leo, 1997, p. 201)
When the interrogator perceives that
the suspect has reached a point of
hopelessness:
eliciting the admission
Ready to crack?
offers reasons why an admission
would be to the suspect’s
advantage
Generally, police use whatever
incentives they believe will
• get the suspect to confess
• and be allowed by the courts
Incentives to confess:
• doing the right thing
• saving face
• showing empathy for the victim or the victim’s
family
• maintaining the good will of the police
• showing remorse to look good for the prosecutor,
judge, or jury
• avoiding a harsh sentence such as a lengthy
prison sentence or the death penalty
Themes that allow the suspect to
account for some of the “facts”
without accepting much, if any,
responsibility.
An ever-popular theme that
police suggest:
• It was an accident
- or • It wasn’t premeditated
Eliciting the admission via the
accident theme:
“We know you did it. The
evidence proves that.”
“All I’m really interested in is why
you did it.”
- or “All I’m interested in knowing is
whether you planned to do this
or whether it was an accident.”
The accident technique suggests
a version of the facts that
• would reduce the moral
seriousness of the offense
• would drastically lower the charge
• would result in a decreased
sentence, if any sentence at all
Summary regarding the preadmission phase:
• Social scientists see some common
interrogation techniques as being
inherently coercive.
• The same techniques that facilitate
confessions from guilty suspects can
contribute to false confessions from
innocent suspects.
Post-admission Narrative
Social scientists who have
analyzed interrogations report
that there are no reliable,
observable differences
between interrogations
yielding true or false
confessions until after the “I
did it” statement.
Therefore, police
interrogation should never
end at the point when the
police believe the suspect
has made admissions
allowing him to be charged
with the most serious offense
possible.
In the next step, the postadmission narrative,
interrogators elicit detailed
descriptions of events. If the
suspect provides accurate
details showing special
knowledge of the details of the
crime, then the confession can
be judged as reliable.
If the suspect’s postadmission narrative does not
match the facts of the case,
the reliability of the
confession is in doubt.
Three ways to determine the
reliability of the confession:
1. Does the confession statement
lead to the discovery of evidence
that is unknown to the police?
2. Does the confession statement
include highly unusual features
of the crime that have not been
made public and have not been
told to the suspect during the
interrogation?
3. Does the suspect provide
accurate descriptions of the
mundane crime scene detail,
which have not been told to the
suspect and have not been made
public?
Analysis of the details in the
post-admission narrative can
guide the police whether to
• focus their investigation on this
suspect or
• keep looking for the truly guilty
party
Every police interrogator in
every case should obtain a
detailed post-admission
narrative.
To avoid – actually, to
recognize – contamination,
the entire interrogation
should be electronically
recorded.
Types of False Confessions
Three types of false
confessions:
1) voluntary
2) coerced-compliant
3) coerced-internalized
Kassin and Wrightsman
(1985)
voluntary false confessions
those purposely offered in the
absence of elicitation
 Lindbergh baby
 Colorado v. Connelly
(1986)
coerced-compliant
false confessions
• The suspect publicly professes guilt
in response to extreme methods of
interrogation
• despite knowing privately that he
or she is truly innocent.
coerced-internalized false
confession
– through the fatigue,
pressures, and
suggestiveness of the
interrogation process
– actually comes to believe
that he or she committed the
offense.
coerced-internalized
false confession dangerous processes:
• fatigue
• pressures
• suggestive questioning
coerced-internalized
false confession vulnerable suspects:
• young
• tired
• confused
• suggestible
• exposed to false information
coerced-internalized
false confession NEVER, NEVER, NEVER:
• suggest suspect did it even though
he has no such memory
• exaggerate/fabricate evidence
• provide crime-scene details
• suggest internal thoughts, feelings,
motivations …
coerced-internalized
false confession NEVER, NEVER, NEVER (cont.):
• show crime-scene photos
• exaggerate/fabricate evidence
• ask suspect to explain fake evidence
• imply leniency for “accident” or
“unintended” act
coerced-internalized
false confession NEVER, NEVER, NEVER:
• especially when there is no
independent evidence (physical,
eyewitness) implicating this suspect
in this crime
coerced-internalized
false confession linguistic chronology:
• “I didn’t do it.”
• “I know I didn’t do it.”
• “But the evidence you’ve told
me about means I must have
done it.” …
coerced-internalized
false confession linguistic chronology (cont.):
• “But I don’t remember doing
it.”
• “But I must have done it.”
• “Maybe I did do it, but I don’t
remember doing it.” …
coerced-internalized
false confession linguistic chronology (cont.):
• “I really don’t think I did do it,
but if I did I didn’t mean to.”
• “I guess I must have done it.”
• “I think I did it like this …”
A classic case: 18-year-old Peter
Reilly of Falls Village,
Connecticut, returned home one
night to find that his mother had
been murdered.
Reilly immediately called the
police but he was suspected of
matricide.
After gaining Reilly's trust, the
police used fabricated evidence
(a “failed” polygraph test) to
convince him that he was guilty
even though he had no
conscious memory of the event.
After hours of interrogation, the
audiotape reveals that Reilly
underwent a chilling
transformation from denial to
confusion, self-doubt,
conversion ("Well, it really looks
like I did it") …
… and finally a full confession:
"I remember slashing once at my
mother's throat with a straight
razor I used for model airplanes.
... I also remember jumping on
my mother's legs."
Two years later independent
evidence revealed that Reilly
could not possibly have
committed the murder.
- Kassin & Gudjonsson (June 2005) True
Crimes, False Confessions: Why Do
Innocent People Confess to Crimes They
Did Not Commit? Scientific American Mind.
DeClue (2005):
 self-initiated
 first response
 police induced
Self-initiated confessions
occur when a person initiates
contact with a law
enforcement officer or other
person in authority and
declares that he or she is
guilty of a crime.
First-response confessions
occur when the police
approach a person and
initiate questioning, and the
person’s first response is “I
did it.”
Police-induced confessions
occur when the police approach
a person and initiate
questioning, the person’s first
response is something other
than “I did it,” (for example, “I
didn’t do it”), the police engage
in further conversation with the
person, and the person
subsequently says, “I did it.”
This classification scheme
avoids legally-charged words,
and it is not necessary to
delve into the minds of the
confessor or the police in
order to classify a
confession.
?? Who said ??
“Those who cannot remember the
past are condemned to repeat it.”
In Hopt v. Territory of Utah, 110 U.S.
574 (1884), the U.S. Supreme Court
held:
A confession, if freely and voluntarily
made, is evidence of the most
satisfactory character. Such a
confession is deserving of the highest
credit, because it is presumed to flow
from the strongest sense of guilt, and
therefore it is admitted as proof of the
crime to which it refers. . . .
But the presumption upon which
weight is given to such evidence,
namely, that one who is innocent
will not imperil his safety or
prejudice his interests by an untrue
statement, ceases when the
confession appears to have been
made [in response to] inducements,
threats, or promises. (pp. 584-585,
citation omitted)
In Brown v. Mississippi, 297 U.S.
278 (1936), the undisputed facts of
the case showed that the local
sheriff, accompanied by some other
men, took one of the defendants to
the house of a recently deceased
man, and there …
“began to accuse the defendant of
the crime. Upon his denial they
seized him, and with the
participation of the deputy they
hanged him by a rope to the limb of
a tree, and, having let him down,
they hung him again, …
and when he was let down the
second time, and he still protested
his innocence, he was tied to a tree
and whipped, and, still
declining to accede to the demands
that he confess, …
he was finally released, and he
returned with some difficulty to his
home, suffering intense pain and
agony. The record of the testimony
shows that the signs of the rope on
his neck were plainly visible during
the so-called trial.” (p. 281)
The U.S. Supreme Court in Brown
ruled that confessions elicited via
physical brutality and violence by
the police could not be used as
evidence.
In Chambers v. Florida, 309 U.S.
227 (1940), the facts and findings
included:
“For five days petitioners were
subjected to interrogations
culminating in Saturday’s (May
20th) all night examination. …
Over a period of five days they
steadily refused to confess and
disclaimed any guilt. The very
circumstances surrounding their
confinement and their questioning
without any formal charges having
been brought, were such as to fill
petitioners with terror and frightful
misgivings. . . .
The haunting fear of mob violence
was around them in an atmosphere
charged with excitement and public
indignation. . . . To permit human
lives to be forfeited upon
confessions thus obtained would
make of the constitutional
requirement of due process of law a
meaningless symbol” (pp. 239-240).
The Court in Chambers noted that
“They who have suffered most from
secret and dictatorial proceedings
have almost always been the poor,
the ignorant, the numerically weak,
the friendless, and the powerless”
(p. 238).
December 26, 2007
Boise, Idaho
"Don't suffer from PTSD, go out and
cause it.”
Officers stand by with their armored vehicle in
Moscow, Idaho.
The academy's director said the
class president was ex-military.
Arraignment
One of your constitutional "due
process" rights is the right to be
told exactly what you're being
accused of doing. That happens
at an arraignment ("uh-rainment") - the judge reads the
charges filed against you and
asks you if you understand what
you've been accused of doing.
But where does arraignment
come from?
McNabb v. United States, 318 U.S.
332 (1943) involved members of a
clan of Tennessee mountaineers who
were in the business of selling
whiskey on which federal taxes had
not been paid, shots fired in the dark,
and a federal agent who died in the
McNabb Settlement’s cemetery. The
interrogation involved confinement in
a “barren cell. . . .
For two days they were subjected to
unremitting questioning by numerous
officers. Benjamin’s confession was
secured by detaining him unlawfully
and questioning him continuously for
five or six hours. The McNabbs had
to submit to all this without the aid of
friends or the benefit of counsel” (p.
345). Three of the clan confessed.
The voluntariness of their confessions
was questionable on grounds that it
was “secured by protracted and
repeated questioning of ignorant and
untutored persons in whose minds
the power of officers was greatly
magnified or who have been
unlawfully held incommunicado
without advice of friends or counsel”
(p. 340).
Instead, the confessions were
excluded because the federal
officers had not promptly taken
them to a judicial officer for a
hearing, a remedy available to the
Court because it was a federal
case.
The McNabb Court explained the
need as follows:
“A democratic society, in which
respect for the dignity of all men is
central, naturally guards against the
misuse of the law enforcement
process. Zeal in tracking down
crime is not in itself an assurance of
soberness of judgment. …
Disinterestedness in law
enforcement does not alone prevent
disregard of cherished liberties.
Experience has therefore counseled
that safeguards must be provided
against the dangers of the
overzealous as well as the despotic.
…
The awful instruments of the
criminal law cannot be entrusted to
a single functionary. The
complicated process of criminal
justice is therefore divided into
different parts, responsibility for
which is separately vested in the
various participants upon whom the
criminal law relies for its vindication.
…
Legislation such as this, requiring that
the police must with reasonable
promptness show legal cause for
detaining arrested persons,
constitutes an important safeguard –
not only in assuring protection for the
innocent but also in securing
conviction of the guilty by methods
that commend themselves to a
progressive and self-confident
society. …
For this procedural requirement
checks resort to those
reprehensible practices known as
the “third degree” which, though
universally rejected as indefensible,
still find their way into use. It aims to
avoid all the evil implications of
secret interrogation of persons
accused of crime. …
It reflects not a sentimental but a
sturdy view of law enforcement. It
outlaws easy but self-defeating
ways in which brutality is
substituted for brains as an
instrument of crime detection
(pp. 343-344).
June 23, 2003
“Waiver of Arraignment”
In Ashcraft v. Tennessee, 322 U.S.
143 (1944), a suspect had been
questioned for 36 hours by a team
of interrogators. The interrogators
had to work in shifts, taking breaks
due to their exhaustion, but the
pressure on the suspect was
unrelenting.
The Court noted that there were
“disputed questions of fact relating
to the details of what transpired
within the confession chamber of
the jail or whether Ashcraft actually
did confess. Such disputes, we may
say, are an inescapable
consequence of secret inquisitorial
practices. …
And always evidence concerning
the inner details of secret
inquisitions is weighted against an
accused, particularly where, as
here, he is charged with a brutal
crime, or where, as in many other
cases, his supposed offense bears
relation to an unpopular economic,
political, or religious cause. . . .
We think a situation such as that
here shown by uncontradicted
evidence is so inherently coercive
that its very existence is
irreconcilable with the possession of
mental freedom by a lone suspect
against whom its full coercive force
is brought to bear” (pp. 152-153).
The dissent in Ashcraft noted “A
confession is wholly and
incontestably voluntary only if a
guilty person gives himself up to the
law and becomes his own accuser.
The Court bases its decision on the
premise that custody and
examination of a prisoner for thirtysix hours is ‘inherently coercive.’ …
Of course it is. And so is custody and
examination for one hour. Arrest itself
is inherently coercive, and so is
detention. When not justified, infliction
of such indignities upon the person is
actionable as a tort. Of course such
acts put pressure upon the prisoner
to answer questions, to answer them
truthfully, and to confess if guilty” (pp.
160-161).
A Mississippi court held that a
defendant who denied that he made
a confession was therefore barred
from challenging that the disputed
confession was coerced.
U.S. Supreme Court: “Nah.”
Lee v. Mississippi, 332 U.S. 742
(1948).
Upshaw v. United States, 335 U.S.
410 (1948): Rather than take
Upshaw for arraignment as the law
required, the police held him for 30
hours. The purpose for the illegal
detention “as stated by the officers
themselves, was only to furnish an
opportunity for further interrogation”
(p. 412).
In a 5-4 decision, the majority in
Upshaw held that “a confession is
inadmissible if made during illegal
detention due to failure promptly to
carry a prisoner before a committing
magistrate, whether or not the
confession is the result of torture,
physical or psychological” (p. 413,
citation omitted).
Thus, in 1948 this was a
controversial, 5-4 decision: Federal
courts cannot admit confessions
that were obtained illegally.
In Watts v. Indiana, 338 U.S. 49
(1949), the Court ruled involuntary a
confession that followed 6 nights of
relentless interrogation. The Court
reasoned: “To turn the detention of
an accused into a process of
wrenching from him evidence which
could not be extorted in open court
with all its safeguards, …
is so grave an abuse of the power
of arrest as to offend the procedural
standards of due process. . . . This
is so because it violates the
underlying principle in our
enforcement of the criminal law.
Ours is the accusatorial as opposed
to the inquisitorial system. …
Such has been the characteristic of
Anglo-American criminal justice
since it freed itself from practices
borrowed by the Star Chamber from
the Continent whereby an accused
was interrogated in secret for hours
on end. Under our system society
carries the burden of proving its
charge against the accused not out
of his own mouth. …
[Society] must establish its case,
not by interrogation of the accused
even under judicial safeguards, but
by evidence independently secured
through skillful investigation” (p. 54,
citations omitted).
United States v. Carignan,
342 U.S. 36 (1951)
“What happens behind doors that
are opened and closed at the sole
discretion of the police is a black
chapter in every country – the free
as well as the despotic, the modern
as well as the ancient.”
Justice William O. Douglas
(the longest-serving Supreme Court
Justice in U.S. history),
concurring opinion
Gallegos v. Nebraska, 342 U.S. 55
(1951)
“He was kept in the Texas jail. His
detention was incommunicado
except for repeated questioning by
the deputies. …
As is usual in this type of case the
deputies say that the confession
was wholly ‘voluntary’; petitioner
says that it was due to fear
engendered by his incarceration
and the actions of the deputies”
(p. 74).
The interrogator, the Chief Deputy
Sheriff, said he used no violence,
threat of violence, or promises. The
Court considered only undisputed
evidence, and ruled the confession
voluntary.
Stroble v. California, 343 U.S. 181
(1952)
The entire proceeding was recorded
on a recording machine which had
been set in operation before
petitioner’s arrival. Petitioner stated
that on the afternoon of November
14, his victim came to the home of
petitioner’s daughter, where
petitioner was visiting; …
he took his victim into the bedroom
and made advances upon her;
when she began to scream, he
became frightened, got hold of her
throat, and squeezed it until she
became quiet; she started to squirm
again, so he took a necktie from the
dresser and tied it around her neck;
…
when she continued to move, he took
her off the bed, wrapped her in a
blanket, and hit her on the temple
with a hammer which he had
obtained from the kitchen drawer; he
then dragged her across the back
yard to the incinerator, returned to the
kitchen to get an ice pick, and pushed
the pick into her three times in an
effort to reach her heart; …
next he got an axe from the garage
and hit her on the head and
backbone; finally he got a knife from
the kitchen and stabbed her in the
back of the neck, covered her body
with boxes, and left for Ocean Park,
a beach resort within the city of Los
Angeles, where he remained for the
three nights before his
apprehension. …
Towards the end of the recording
petitioner stated that the officers
had not threatened or abused him
in any way, either in the park
foreman’s office or the District
Attorney’s office. The recording
disclosed no mistreatment at the
time of the making of the confession
(pp. 186-187).”
2 confessions: “The fact that the
accused started talking shortly after
he was arrested and prior to the
time he was taken before the
District Attorney does not save the
case. …
That talk was accompanied or
preceded by blows and kicks of the
police; and the Supreme Court of
California assumed that it was part
and parcel of the first confession
obtained through ‘physical abuse or
psychological torture or a
combination of the two’” (p. 204,
citation omitted). (But that’s from
the dissent.)
Stein v. New York, 346 U.S. 156
(1953)
Three men confessed to
participation in a murder related to
the hijacking of a Reader’s Digest
truck near Pleasantville. The three
were examined by a prison
physician on the morning of June 9,
after they had been in custody for 2
to 4 days:
“Wissner had a broken rib and
various bruises and abrasions on
the side, legs, stomach and
buttocks; Cooper had bruises on
the chest, stomach, right arm, and
both buttocks; Stein had a bruise on
his right arm. …
Counsel for the petitioners, who
examined them on the 9th and 10th
of June, testified that the injuries
sustained by each were more
extensive than those described in
the doctor’s testimony” (pp. 169170).
In preparation for trial, they were faced
with a difficult choice. If they
testified that their confessions had been
coerced, they would be subject
to cross-examination that could reveal
their prior criminal records. They
did not testify at trial. Therefore, on
appeal the Court saw no basis to
consider that their injuries were the
results of police action.
In considering whether psychological
coercion had been applied, the Court
identified the proper test as this: “The
limits in any case depend upon a
weighing of the circumstances of
pressure against the power of
resistance of the person confessing.
What would be overpowering to the
weak of will or mind might be utterly
ineffective against an experienced
criminal” (p. 185).
Has this ever happened to you?
Leyra v. Denno, 347 U.S. 556
(1954)
A suspect complained of pain and
asked for a doctor to treat him for a
medical condition.
In response to his request, he was
introduced to a state-appointed
psychiatrist with considerable
knowledge of hypnosis.
“Instead of giving petitioner the medical
advice and treatment he expected, the
psychiatrist by subtle and suggestive
questions simply continued the police
effort of the past days and nights to
induce petitioner to admit his guilt. For
an hour and a half or more the
techniques of a highly trained
psychiatrist were used to break
petitioner’s will in order to get him to
say he had murdered his parents. …
Time and time and time again the
psychiatrist told petitioner how
much he wanted to and could help
him, how bad it would be for
petitioner if he did not confess, and
how much better he would feel, and
how much lighter and easier it
would be on him if he would just
unbosom himself to the doctor. …
Yet the doctor was at that very time
the paid representative of the state
whose prosecuting officials were
listening in on every threat made
and every promise of leniency
given” (pp. 559-560).
What’s wrong with that?
Greenberg, S. A. & Shuman, D. W.
(1997). Irreconcilable conflict
between therapeutic and forensic
roles. Professional Psychology:
Research and Practice, 28, 50-57.
Any relationship to current ethical
issues?
The Court ruled that Leyra’s
statements to the psychiatrist and
his subsequent statements (within
about 5 hours) to police and to a
business associate, should all be
considered involuntary.
Opper v. United States, 348 U.S. 84
(1954)
Smith v. United States, 348 U.S.
147 (1954)
“An uncorroborated confession is
insufficient to convict someone
because the doubt persists that the
zeal of the agencies of prosecution to
protect the peace, the self-interest of
the accomplice, the maliciousness of
an enemy or the aberration or
weakness of the accused under the
strain of suspicion may tinge or warp
the facts of the confession” (Opper,
pp. 89-90).
In Crooker v. California, 357 U.S.
433 (1958), by a 5-4 vote, the Court
allowed a confession to be admitted
even though the defendant had
asked over and over to have his
attorney present, and was denied.
On the same day, the Court
considered similar facts in Cicenia
v. Lagay, 357 U.S. 504 (1958) and
reached a similar decision.
Spano v. New York, 360 U.S. 315
(1959). The Court described its role in
disputed confession cases: “We are
forced to resolve a conflict between two
fundamental interests of society; its
interest in prompt and efficient law
enforcement, and its interest in
preventing the rights of its individual
members from being abridged by
unconstitutional methods of law
enforcement” (p. 315).
The police were not therefore
merely trying to solve a crime, or
even to absolve a suspect. . . . They
were rather concerned primarily
with securing a statement from
defendant on which they could
convict him. …
The undeviating intent of the
officers to extract a confession from
petitioner is therefore patent. When
such an intent is shown, this Court
has held that the confession
obtained must be examined with the
most careful scrutiny” (321-324).
In Rogers v. Richmond, 365 U.S.
534 (1961), the Court ruled that it
was a violation of the Fourteenth
Amendment for a state court to
consider whether a confession was
true as an element of whether it
was voluntary.
Gideon v. Wainwright,
372 U.S. 335 (1963)
Every person accused of a crime is
entitled to a lawyer at trial.
Escobedo v. Illinois,
378 U.S. 478 (1964)
“We have learned the lesson of
history, ancient and modern, that a
system of criminal law enforcement
which comes to depend on the
“confession” will, in the long run, be
less reliable and more subject to
abuses than a system which
depends on extrinsic evidence
independently secured through
skillful investigation. . . .
We have also learned the
companion lesson of history that no
system of criminal justice can, or
should, survive if it comes to
depend for its continued
effectiveness on the citizens’
abdication through unawareness of
their constitutional rights. …
No system worth preserving should
have to fear that if an accused is
permitted to consult with a lawyer,
he will become aware of, and
exercise, these rights. If the
exercise of constitutional rights will
thwart the effectiveness of a system
of law enforcement, then there is
something very wrong with that
system” (pp. 488-489).
“We hold, therefore, that where, as
here, the investigation is no longer
a general inquiry into an unsolved
crime but has begun to focus on a
particular suspect, the suspect has
been taken into police custody, the
police carry out a process of
interrogations that lends itself to
eliciting incriminating statements, …
the suspect has requested and
been denied an opportunity to
consult with his lawyer, and the
police have not effectively warned
him of his absolute constitutional
right to remain silent, …
the accused has been denied the
Assistance of Counsel in violation of
the Sixth Amendment to the
Constitution as made obligatory
upon the States by the Fourteenth
Amendment, …
and that no statement elicited by
the police during the interrogation
may be used against him at a
criminal trial”
(p. 491, citation omitted).
“We hold only that when the
process shifts from investigatory to
accusatory – when its focus is on
the accused and its purpose is to
elicit a confession – our adversary
system begins to operate, and,
under the circumstances here, the
accused must be permitted to
consult with his lawyer” (p. 492).
Miranda v. Arizona,
384 U.S. 436 (1966)
The Court noted that, “the modern
practice of in-custody interrogation
is psychologically, rather than
physically, oriented” and
“recognized that coercion can be
mental as well as physical” (p. 448).
The Court noted that “Interrogation
still takes place in privacy. Privacy
results in secrecy, and this, in turn,
results in a gap in our knowledge as
to what, in fact, goes on in the
interrogation rooms” (p. 448).
The current practice of incommunicado
interrogation is at odds with one of our
Nation’s most cherished principles –
that the individual may not be
compelled to incriminate himself.
Unless adequate protective devices are
employed to dispel the compulsion
inherent in custodial surroundings, no
statement obtained from the defendant
can truly be the product of his free
choice” (pp. 457-458).
“In sum, the privilege is fulfilled only
when the person is guaranteed the
right ‘to remain silent unless he
chooses to speak in the unfettered
exercise of his own will.’” (p. 460,
citations omitted)
The Court ruled that these rights
must be afforded people in police
custody, not just at court hearings
and trials, because
“As a practical matter, the
compulsion to speak in the isolated
setting of the police station may well
be greater than in courts or other
official investigations, where there
are often impartial observers to
guard against intimidation or
trickery” (p. 461).
“We deal with the admissibility of
statements obtained from an
individual who is subjected to
custodial police interrogation and
the necessity for procedures which
assure that the individual is
accorded his privilege under the
Fifth Amendment to the Constitution
not to be compelled to incriminate
himself” (p. 439).
The Court recognized “precious
rights [that] were fixed in our
Constitution only after centuries of
persecution and struggle” (p. 442):
“that ‘No person . . . shall be
compelled in any criminal case to
be a witness against himself,’ and
that ‘the accused shall . . . have the
Assistance of Counsel’” (p. 442).
The Court held:
“The prosecution may not use
statements, whether exculpatory or
inculpatory, stemming from
custodial interrogation of the
defendant unless it demonstrates
the use of procedural safeguards
effective to secure the privilege
against self-incrimination. …
By custodial interrogation, we mean
questioning initiated by law
enforcement officers after a person
has been taken into custody or
otherwise deprived of his freedom
of action in any significant way. …
As for the procedural safeguards to
be employed, unless other fully
effective means are devised to
inform accused persons of their
right of silence and to assure a
continuous opportunity to exercise
it, the following measures are
required. …
Prior to any questioning, the person
must be warned that he has a right
to remain silent, that any statement
he does make may be used as
evidence against him, and that he
has a right to the presence of an
attorney, either retained or
appointed. …
The defendant may waive
effectuation of these rights,
provided the waiver is made
voluntarily, knowingly and
intelligently. If, however, he
indicates in any manner and at any
stage of the process that he wishes
to consult with an attorney before
speaking, there can be no
questioning. …
Likewise, if the individual is alone
and indicates in any manner that he
does not wish to be interrogated,
the police may not question him. …
The mere fact that he may have
answered some questions or
volunteered some statements on
his own does not deprive him of the
right to refrain from answering any
further inquiries until he has
consulted with an attorney and
thereafter consents to be
questioned” (pp. 444-445).
Of particular note to consulting
psychologists is the following:
“If the interrogation continues
without the presence of an attorney
and a statement is taken, a heavy
burden rests on the government to
demonstrate that the defendant
knowingly and intelligently waived
his privilege against selfincrimination and his right to
retained or appointed counsel. …
This Court has always set high
standards of proof for the waiver of
constitutional rights, and we
reassert these standards as applied
to in-custody interrogation. …
Since the State is responsible for
establishing the isolated
circumstances under which the
interrogation takes place, and has
the only means of making available
corroborated evidence of warnings
given during incommunicado
interrogation, the burden is rightly
on its shoulders” (p. 475, citations
omitted).
Miranda in Context
In Berkemer v. McCarty (1984), the
U.S. Supreme Court explained
that the purposes of the safeguards
prescribed by Miranda are
threefold:
1. to ensure that police do not
coerce or trick captive suspects into
confessing;
2. to relieve the inherently
compelling pressures generated by
the custodial setting itself, which
work to undermine the individual’s
will to resist; and
3. as much as possible to free
courts from the task of scrutinizing
individual cases to try to determine,
after the fact, whether particular
confessions were voluntary.
How well have these
goals been met?
The first two goals were met to
some extent in the first decade after
Miranda, but police have developed
effective ways to get around
Miranda, and courts have allowed it.
The third goal has not been met.
More importantly, because the first
two goals have not been met, the
third goal should not be met.
Leo, R. (2001). Questioning the
relevance of Miranda in the twentyfirst century. Michigan Law Review,
99(5), 1000-1029.
“Contrary to ... dire predictions, ...
police have successfully adapted to
Miranda in the last four decades. …
Following an initial adjustment
period, police have learned how to
comply with Miranda, or at least
how to create the appearance of
compliance with Miranda, and still
successfully elicit a high percentage
of incriminating statements,
admissions, and confessions from
criminal suspects” (p. 1016).
“Miranda has exercised a long term
impact on police behavior, court
cases, and popular consciousness
in at least four ways. …
First, Miranda increased the
professionalism of police detectives,
removing the last entrenched
vestiges of the third degree.
Second, Miranda has transformed
the culture of police detecting in
America by fundamentally reframing
how police talk and think about the
process of custodial interrogation.
…
Third, Miranda has increased public
awareness of constitutional rights.
…
And fourth, Miranda has inspired
police to develop more specialized,
more sophisticated, and seemingly
more effective interrogation
techniques with which to elicit
inculpatory statements from
custodial suspects” (p. 1026).
“Contrary to the visions of its
creators, Miranda does not
meaningfully dispel compulsion inside
the interrogation room. Miranda has
not changed the psychological
interrogation process it excoriated,
but has only motivated police to
develop more subtle and
sophisticated – and arguably more
compelling – interrogation strategies.
…
How police ‘work’ Miranda in
practice makes a mockery of the
notion that a suspect is effectively
apprised of his rights and has a
continuous opportunity to exercise
them. …
Miranda offers no protection against
traditionally coercive interrogation
techniques, but may have, instead,
weakened existing legal safeguards
in this area. …
And Miranda offers suspects little, if
any, protection against the
elicitation and admission into
evidence of false confessions. As a
safeguard, Miranda produces very
few benefits” (p. 1027).
In an individual case there is no
reason to treat proper Miranda
warnings as a proxy for a detailed
analysis of whether the confession
was made voluntarily.
Post-Miranda, advising a suspect of
his rights is a necessary, but not a
sufficient, factor in determining that
a confession was made voluntarily.
Assessment regarding waiver of
Miranda rights
What is the court looking for?
In Moran v. Burbine, 475 U.S. 412
(1986) the Supreme Court wrote
that when a court is to decide
whether a waiver was made
voluntarily, knowingly, and
intelligently, …
“The inquiry has two distinct
dimensions. First, the
relinquishment of the right must
have been voluntary in the sense
that it was the product of a free and
deliberate choice rather than
intimidation, coercion, or deception.
…
Second, the waiver must have been
made with a full awareness of both
the nature of the right being
abandoned and the consequences
of the decision to abandon it. …
Only if the totality of the
circumstances surrounding the
interrogation reveals both an
uncoerced choice and the requisite
level of comprehension may a court
properly conclude that the Miranda
rights have been waived” (p. 421,
citations omitted).
The Court did not define the
“requisite level of comprehension.”
Psychologists’ role
- Miranda waiver -
Does Miranda apply in the following
situation?
Some psychologists, by virtue of
their knowledge, training, and
experience, are able to assist the
court in each of the following areas:
1. Gather and analyze information
regarding “the physical and
psychological environment in which
the [waiver] was obtained” Crane v.
Kentucky, 476 U.S. 683, 684
(1986).
2. Assess the defendant’s current
mental status, including intelligence,
memory, reading comprehension,
listening comprehension, and
psychopathology.
3. Reconstruct the defendant’s
mental state at the time of the
waiver (similar to the type of
assessment in insanity and other
mental-state-at-the-time-of-theoffense evaluations; see, e.g.,
Rogers, R., & Shuman, D. (2000).
Conducting Insanity Evaluations
(2nd ed.). New York: Guilford.
4. Assist the judge in understanding
interactions among the above.
ASSESSMENT PROCEDURES
First, the psychologist reviews all
available information regarding the
events that occurred immediately
before, during, and after the waiver.
Prior to any contact with the
defendant, the expert should
develop as clear an understanding
of the circumstances and events as
possible, from points of view other
than that of the defendant.
Also prior to the face-to-face
evaluation, the attorney should
provide the expert with records
(e.g., school records, medical and
psychological reports, etc.)
regarding the defendant.
The second step is to conduct a
current psychological evaluation of
the defendant.
Clinical Forensic Psychological
Assessment
As with other forensic psychological
assessments, a history and mental
status provide useful information …
which can be supplemented by a
psychiatric screening instrument
such as the Brief Symptom
Inventory (BSI) or the Symptom
Checklist 90-R (SCL-90-R) …
[The BSI and SCLR-90-R are both
available via
http://assessments.ncspearson.com/as
sessments/]
by a structured diagnostic interview
…
see Rogers, R. (2001). Handbook of
Diagnostic and Structured Interviewing.
New York: Guilford.
and/or (if the subject’s reading
comprehension level is sufficient)
by an objective test of
psychopathology such as the
Personality Assessment Inventory
or the Minnesota Multiphasic
Personality Inventory-2.
When is a good time to use an oral
administration of a test like the PAI
or MMPI-2?
[If the subject’s reading
comprehension level is below the
reading level of a significant number
of the test items, and if the subject’s
listening comprehension level is at
or above the level of the test items,
then it may be useful to employ an
oral administration of an objective
test of psychopathology.]
How do we test for exaggeration or
feigning of psychopathology in a
forensic psychological evaluation?
SIRS
Rogers, R., Bagby, R. M., &
Dickens, S. E. (1992). Structured
Interview of Reported Symptoms
Professional Manual. Lutz, FL:
Psychological Assessment
Resources.
www.parinc.com
How do we assess for intelligence
in a forensic psychological
evaluation?
Wechsler tests
http://harcourtassessment.com
Reynolds Intellectual Assessment
Scales (RIAS)
www.parinc.com
How do we assess for memory in a
forensic psychological evaluation?
Wechsler Memory Test-III
http://harcourtassessment.com
How do we screen for
neuropsychological impairment in a
forensic psychological evaluation?
Screening Test for the
Luria-Nebraska Neuropsychological
Battery
Golden, C. J. (1987). Screening
Test for the Luria-Nebraska
Neuropsychological Battery. Los
Angeles, CA: Western
Psychological Services.
www.wpspublish.com
How do we assess effort in a
forensic psychological evaluation?
Word Memory Test
Green, P. (2003). Green’s Word
Memory Test for Windows: User’s
Manual. Edmonton, Canada:
Green’s Publishing.
www.wordmemorytest.com/
Test of Memory Malingering
Tombaugh, T. N. (1996). Test of
Memory Malingering (TOMM).
North Tonawanda, NY: Multi-Health
Systems.
www.parinc.com
How do we test for
reading comprehension,
listening comprehension, etc.?
Wechsler
Individual Achievement Test –
Second Edition
San Antonio, TX:
The Psychological Corporation
(2001)
Woodcock-Johnson III Tests of
Achievement (WJ-III)
Maher, N., & Woodcock, R. W. (2001).
Woodcock-Johnson III Tests of
Achievement Examiner’s Manual.
Itasca, IL: Riverside.
http://www.riverpub.com/products/wjIIIA
chievement/index.html
WJ-III subtests
Letter-Word Identification
Reading Fluency
Passage Comprehension
Reading Vocabulary …
WJ-III subtests (cont.)
Story Recall
Understanding Directions
Story Recall-Delayed
Oral Comprehension
WJ-III clusters
Oral Language
Listening Comprehension
Broad Reading
Reading Comprehension
If the defendant wrote out a
statement/confession:
subtests:
Writing Fluency
Writing Samples
cluster:
Written Expression
admirable elocution?
“He has the IQ of a nine-year old.”
“His reading and oral
comprehension skills are at a thirdgrade level.”
How do we assess a person’s
current functional abilities relevant
to Miranda waiver?
1. Forensic Assessment
Instruments (FAIs)
2. direct questioning of the
defendant’s understanding of the
rights listed on the local waiver form
What are Forensic Assessment
Instruments (FAIs)?
Forensic assessment instruments
are specialized assessment tools
that have been developed in
response to the demands of
assessments for legal
competencies.
They are designed to provide
standardized, quantitative methods
for observing and describing
behaviors that are directly relevant
to legal questions about human
competencies and capacities
(Grisso, 2003).
Grisso, T. (2003).
Evaluating Competencies: Forensic
Assessments and Instruments
(2nd ed.). New York: Plenum.
Currently, what are the best FAIs
for psychological assessment
relevant to waiving Miranda rights?
Instruments for Assessing
Understanding and Appreciation of
Miranda Rights
(IAUAMR; Grisso, 1998)
Grisso, T. (1998). Instruments for
Assessing Understanding and
Appreciation of Miranda Rights
(Manual). Sarasota, FL:
Professional Resource Press.
www.prpress.com
The IAUAMR are psychological
tests that are directly relevant to the
legal question but are not tests of
the legal question.
What is the legal question RE
Miranda?
The legal question is whether the
defendant gave a knowing,
intelligent, and voluntary waiver of
his or her Miranda rights prior to
questioning by the police.
What do the IAUAMR assess?
The IAUAMR assess understanding
and appreciation at a different
(typically later) time and in a
different interpersonal situation (a
psychological evaluation, not an
interrogation).
The IAUAMR are useful tools when
administered along with tests of
intelligence, achievement, etc.
People v. Hernandez
846 N.Y.S.2d 371
N.Y.A.D. 2 Dept, 2007
People v. Cole
24 A.D.3d 1021, 807 N.Y.S.2d 166
N.Y.A.D. 3 Dept, 2005
State v. Griffin
273 Conn. 266, 869 A.2d 640
Conn, 2005
Carter v. State
697 So.2d 529
Fla.App. 1 Dist.,1997
At the conclusion of the face-to-face
evaluation (which might involve
more than one session), the
psychologist should have a clear
assessment of …
1) the person’s current mental state;
2) a detailed account of the
person’s recollection of events
occurring before, during, and after
the waiver;
3) the defendant’s description of
how and why his or her mental state
may have been different at the time
of the waiver; …
4) objective measurements of the
defendant’s current understanding
of his or her rights;
5) the defendant’s description
regarding what he or she
understood at the time of the
waiver; and
6) the defendant’s description of
why he or she waived his or her
rights.
After completing the face-to-face
evaluation of the defendant, the
psychologist can address the fourth
and final task of the evaluation.
The psychologist can now consider
interactions among these factors in
an attempt to reconstruct the
defendant’s mental state at the time
of the waiver.
Based on knowledge, training, and
experience, the psychologist can
help the judge understand the
defendant’s mental state at the time
of the waiver, which aids the judge
in determining whether the
defendant made a knowing,
intelligent, and voluntary waiver.
1. Did the State fail to prove,
by a preponderance of the
evidence, that the
defendant knowingly,
intelligently, and voluntarily
waived his or her Miranda
rights?
DeClue, G. (in press).
Oral Miranda Warnings:
A Checklist and a Model
Presentation. Journal of
Psychiatry and Law.
Miranda v. Arizona, 384
U.S. 436 (1966).
What does Miranda
require?
Police must
• advise suspect
• warn suspect
Miranda requires that the
contents of the warnings be
stated in “clear and
unambiguous language” (p.
468) lest the process
devolve into
“empty formalities.”
Requirements for a valid
waiver of Miranda rights are
described in Colorado v.
Spring, 479 U.S. 564 573
(1987):
First, the relinquishment of
the right must have been
voluntary in the sense that it
was the product of a free
and deliberate choice rather
than intimidation, coercion,
or deception.
Second, the waiver must
have been made with a full
awareness both of the
nature of the right being
abandoned and the
consequences of the
decision to abandon it.
Only if the “totality of the
circumstances surrounding the
interrogation” reveals both an
uncoerced choice and the
requisite level of comprehension
may a court properly conclude
that the Miranda rights have
been waived.
Where an interrogation is
conducted without the presence of
an attorney and a statement is
taken, a heavy burden rests on the
Government to demonstrate that
the defendant knowingly and
intelligently waived his right to
counsel. Miranda, p. 475.
What does it take for the
prosecution to show that
a suspect understood his
rights at the time that he
waived them?
What does it take for the
prosecution to show that
a suspect understood his
rights at the time that he
waived them?
Psychologists can play an
important role in gathering
evidence regarding a defendant’s
current understanding of Miranda
rights, along with current
intelligence,
achievement, and
various personality
test scores.
But more and more
interrogations are
being recorded,
allowing an opportunity
for detectives to create a record
that clearly shows whether and to
what extent a suspect understands
his or her Miranda rights.
Three cases
C
L
T
C
43-year-old male
suspected of
capital sexual battery
Excerpt from transcript of the
interrogation of C
Detective A:All right, we’ll go
ahead and get started. … C,
raise your right hand. You swear
the statement you’re about to
give is gonna be the truth,
nothing but the truth?
C: Yes.
Detective A: Okay. (to
Detective B) I got him to sign
here. He signed his Miranda. So
that’s good. Can you witness
this for me real quick?
Detective B: (to C) This is your
signature right here?
C: Yes.
T
16-year-old male
suspected of
homicide
Excerpt from transcript of
the interrogation of T
Detective: I am just going
to explain this, this rights
waiver form to you and your
folks. We kinda talked
about it before.
But, um, you know I want you
to know, now that I mean we
read you your rights so people
understand your rights and so
you know anytime you are
interviewed by the police for
the most part
and you come down to the
station or interview room
here, um, people sometimes
get the impression that
maybe they are in custody
and they are not free to
leave,
so it’s a good time to give you
your rights so you understand
you know your rights are per
Miranda. I’m going to go ahead
and read them to you. If you
have any questions, just go
ahead and let me know.
It says before you are asked
any questions, you must
understand your rights,
okay?
You have the right to remain
silent, however, anything
you do say can and will be
used against you in court,
okay?
You have the right to talk to
a lawyer for advice before
you are asked any questions
and have him with you
during questioning, okay?
You have this right to the
advice and presence of a
lawyer even if you can’t
afford to hire one. That
means, you know, if you
can’t afford to hire one,
that you get a public
defender, that’s what that
means, okay, so one will be
appointed to you.
If you wish to answer
questions or make a
statement at this time
without a lawyer being
present,
you have the right to refuse
to answer any questions,
okay, and to have this
interview terminated at any
time, okay.
Do you understand those
rights and in a nutshell it
means that you understand
anything you say can and
will be used against you.
At the same token, if we ask
you something you don’t
like, you don’t, you’re not
being forced to answer any
questions, okay?
T: Okay.
Detective: The second part
of this is just merely a
waiver and the waiver says
that I read you the form,
that I have read you the
statement of your rights,
and I have shown you, um,
which, and I have told you
what your rights are, okay?
I desire to answer questions
and to make a statement
without first consulting an
attorney, which I think you
have today, and without
having a lawyer present at
this time, okay?
But you have your parents
here because you are a
juvenile and you know they
have rights over you there.
This decision is voluntary on
your part and your parents’,
right, and no promises and
threats of force of any nature
have been made against you to
get you to come in here and
talk, okay?
T: Okay.
Detective: So again it’s
voluntary, it’s totally on your
own free will and we are just
going to sit and it will be,
you know, basically five
people in here talking
and you can just sign it right
there, it’s just your signature
that you understand your
rights.
Detective: Okay, I’ll just sign it.
And you witness it here. That’s
all set now. That’s that!
Rogers, R., Harrison, K. S.,
Shuman, D. W., Sewell, K. W.,
& Hazelwood, L. L. (2007). An
analysis of Miranda warnings
and waivers: Comprehension
and coverage. Law and
Human Behavior, 31, 177-192.
Rogers et al. (2007)
• 560 different (written)
versions of Miranda
warnings
• reading levels varied:
elementary to post-graduate
• easiest to read: 2.8
Rogers et al. (2007, p. 190)
report, anecdotally, that
“college students do not
understand the term ‘right’ as
a protection. Instead, the large
majority of students
construed ‘right’ as simply an
option,
but an option for which they
will be severely penalized
(i.e., their non-cooperation
will be used in court as
incriminating evidence).”
They note (p. 186): “The
Miranda decision articulates
several mechanisms to
protect the Constitutional
privilege against selfincrimination including
(a) the assertion of rights
will stop further
interrogation and
(b) the exercising of rights
cannot be used as
incriminating evidence.
The Supreme Court did not
specify whether these
protections needed to be
expressed to custodial
suspects. We found that they
remain unexplained in almost
all Miranda warnings
(98.2%).”
Missing in 98% of Miranda
warnings!
(a) the assertion of rights will
stop further interrogation and
(b) the exercising of rights
cannot be used as
incriminating evidence.
Oral Miranda Warning
Checklist
Did the suspect show, in his or
her own words, understanding
of the following (if so, list page
and line numbers from the
transcript):
1) I am/am not free to leave.
2) I do not have to talk to the
police.
3) If I do talk to the police,
anything I say can be used
against me in court.
4) If I do not talk to the police,
my choice not to do so cannot
be used against me in court.
5) I can talk to an attorney.
6) If I cannot afford an
attorney, an attorney will be
provided for free.
7) I can talk to an attorney
before I decide whether to
talk to the police.
8) If I decide to talk to the
police, I can talk to an
attorney before talking to the
police.
9) If I decide to talk to the
police, I can talk to an
attorney while I talk to the
police.
10) If I decide to talk to the
police, I do not have to answer
every question. I can choose
not to answer any question. If
I choose not to answer a
question, that cannot be used
against me in court.
11) If I decide to talk to the
police, I can decide at any
time to stop talking to the
police, and the decision to
stop talking cannot be used
against me in court.
12) If I say, “I do not want
to talk to you anymore,” the
police will stop asking me
questions and the interview
is over.
13) If I say, “I want a
lawyer,” the police will stop
asking me questions and the
interview is over.
A) Did the police make any
statements before, during, or
after advising the suspect of
Miranda warnings that
directly contradict any of the
above? (If so, list page and line
numbers from the transcript.)
B) Did the police make any
statements before, during, or
after advising the suspect of
Miranda warnings that
(perhaps implicitly) may
contradict any of the above?
(If so, list page and line
numbers from the transcript.)
Model Oral
Miranda Warning
Can an oral Miranda
warning do all of the
following?
• Use clear and
unambiguous language, as
required by Miranda
• Include clear promises that
exercising rights is not being
uncooperative?
• And that exercising rights
cannot be used against
suspect?
• all in easy, understandable
language
Yes!
reading level = 2.6
We would like to talk to you
today. We would like to ask
you some questions. You do
not have to talk to us. You
do not have to be here
today.
You do not have to stay
here. You can leave if you
want. You can leave any
time you want.
If you do not talk to us, that
cannot be used against you
in court. If you do talk to us,
anything you say can be
used against you in court.
Now, I’m going to read
you your rights. These are
important rights. The U.S.
Supreme Court says that
these apply to every suspect
in a criminal case.
Right now you are a suspect
in a criminal case, and that’s
why I’m going to read you
your rights.
It is important that you
understand your rights. I
know you’re probably
feeling nervous right now.
I’m going to read these to
you slowly and carefully.
I’m going to ask you to tell me
in your own words what each
right means. So I’ll read each
right to you. And then I would
like you to show me whether
you understand or not. Tell
me in your own words what
the right is. Ready?
You have the right to remain
silent. Tell me in your own
words what that means. …
And being silent is your
right. You don’t have to talk
to us.
And if you don’t talk to us
we can’t hold that against
you. We can’t use it against
you in any way. You can say
no right now, and that’s it.
We’ll stop. We will not hold
it against you that you
chose not to talk to us. If
you do choose to talk to us,
at any time you can say the
magic words.
“Stop, I don’t want to talk
anymore.” And that’s it.
We’ll stop. And we won’t
hold that against you.
Anything you say can and
will be used against you in
court. Tell me in your own
words what that means. …
So if you do talk to us,
anything you say can be
used against you in court.
You have the right to talk to
a lawyer for advice before
you are asked any
questions. Tell me in your
own words what that
means. …
So you could say, “Stop, I
want to talk to a lawyer.”
Those are magic words, too.
And if you say those magic
words, “Stop, I want to talk
to a lawyer,” we will stop.
We won’t ask you any more
questions. We won’t say or
do anything to try to get
you to talk more. And the
fact that you told us to stop
cannot be used against you.
You can say that before we
ever start. If you do, we
won’t ask you any
questions.
You can say that right now,
and we will stop right now. Or
if you do agree to start
answering questions, it is up
to you when we stop. All you
have to do is say those magic
words. “Stop, I want to talk to
a lawyer.”
Also, you have the right to
have a lawyer present with
you during questioning. Tell
me in your own words what
that means. … So, if you want
to have a lawyer present right
now while we talk, that’s fine.
Or if you want to talk to a
lawyer first, and then also
have a lawyer present while
we talk, that’s fine, too.
And if you choose to talk to
a lawyer or to have a lawyer
present while we talk, that’s
fine. That’s a fine way for
you to cooperate with us in
the investigation.
There is nothing
uncooperative about talking
with a lawyer.
There is nothing
uncooperative about having
a lawyer present while you
talk to us. If you’d like to
have a lawyer present, we
won’t hold that against you
in any way.
You have the right to the
advice and presence of a
lawyer even if you cannot
afford to hire one. Tell me in
your own words what that
means. …
So if you do not have the
money to pay for a lawyer,
you can still say, “Stop, I
want a lawyer.” And we
stop. And you get a lawyer
for free.
And you can talk to the lawyer
and decide whether you want
to talk to us. And if you do
decide to talk to us, you can
have a lawyer present, even if
you don’t have the money to
pay for a lawyer.
If you talk to me, you do not
have to answer every
question. Tell me in your
own words what that
means. …
So if I ask you something
that you don’t want to
answer, all you have to say
is, “I don’t want to answer
that.” Or “I don’t want to
talk about that.” And we
won’t hold it against you.
You have the right to stop
this interview at any time.
Tell me in your own words
what that means. …
Like I said, just say the
magic words. “Stop, I don’t
want to talk anymore.” Or
“Stop, I want a lawyer.” And
we’ll stop. And we won’t
hold it against you.
Now, do you understand all
of those rights? Do you
have any questions? …
Like I said, you don’t have to
talk to us. And we won’t
hold it against you if you
don’t talk to us. Do you
want to talk to us now?
[If yes] If you understand each
of these rights, please put
your initials next to each right.
But listen, if you put your
initials there, that means that
we went over these rights, and
you’re saying that you
understand the right.
So, here’s the first one. You
have the right to remain
silent. If you understand
that, please put your initials
here, next to that one.
[Continue for each of the
rights.]
And now I’m asking you,
having these rights in mind,
do you want to talk to us? …
Do you have any more
questions?
Okay, then, if you want to
talk to us, then sign here.
Your signature here means
that you understand the
rights, and you are choosing
to talk to us. …
Okay, now remember, you
can talk to us as long as you
want. But any time you
want to stop, all you have to
do is say the magic words.
Okay, here we go.
L
17-year-old female
suspected of
homicide
Excerpt from transcript of
the interrogation of L
Detective G: There’s a
couple things that we want
you to know. I understand
that since you’ve been here
you’ve been great. You’ve
been talking to everybody
and trying to tell your side of
the story.
Our job is to gather all of the
facts, okay, and try to put
this whole picture together.
It’s kind of like a big jigsaw
puzzle. We try to put it
together.
We had to talk to a bunch of
people and get a whole bunch
of information and you’re kind
of the last person on the list to
talk to, so we can get your side.
But there’s some things I want
to go over first before we talk
about any of that stuff.
How old are you?
L: Seventeen.
Detective G: Okay, um, do
you go to school?
L: No.
Detective G: … How far did you
go in school? … What kind of
grades did you get? … Do you
drive? … Did you ever get a
driver’s license? … Have you
ever been in trouble with the
police before? … Have you ever
been to court before? …
Do you think you
understand the court
system a little bit? … I’m
sure you’ve watched
television and seen different
things.
When somebody gets
arrested for a crime there’s
certain rights that they
have. I’m gonna go over
those rights with you
because I want to make sure
that you understand them.
The first right that they talk
about is: I understand that I
have a right to remain silent.
Do you understand that?
L: Mm-hm [yes].
Detective G: What does
that mean?
L: I’m not s’pose to say
anything.
Detective G: Is it you’re
not supposed to say
anything or you don’t have
to say anything?
L: I don’t have to say
anything.
Detective G: Okay. So if
you want to say something
you could, but if you didn’t
want to, you also have that
right.
L: Okay.
Detective G: I understand
that anything I say can be
used against me in a court
of law. Do you understand
that?
L: Mm-hm [yes].
Detective G: What does
that mean?
L: That mean anything I
say, that could be brought
up again in court.
Detective G:Correct. I
understand that I have a right
to talk to an attorney and
have him or her present with
me while I’m being
questioned. Do you
understand that?
L: Mm-hm [yes].
Detective G: What does
that mean to you?
L: That I could hire a lawyer
and that, um, discussing it,
he be right there.
Detective G: He could be
with you, or she could be
with you, when you’re
talking.
L: Mm-hm [yes].
Detective G: Okay. I
understand that if I want an
attorney and cannot afford
one that an attorney will be
appointed to represent me
free of charge before any
questioning.
Do you understand that?
L: Mm-hm [yes].
Detective G: What does
that mean?
L: Like a public defender.
Detective G: Okay, um, if
you came in here today and
you had no money to afford,
to pay for an attorney,
would you still have the
right to have one before we
talked?
L: Mm. I don’t know. Yeah. I
don’t know.
Detective G: Okay. Let’s
go over that.
It says [pointing to the page]
if I want an attorney and
cannot afford one that an
attorney will be appointed to
represent me free of charge
before any questioning.
L: Okay.
Detective G: Okay. So in other
words if you came in here and
you didn’t have the money for
an attorney but you wanted
one, you could get one before
you talked. Is that right or
wrong?
L: Right.
Detective G: Okay. And feel
free to correct me if I say
something that’s not correct.
Okay. I understand that at any
time I can decide to exercise
these rights and not answer
any questions or make any
statements.
Do you understand that?
L: Yeah.
Detective G: What does that
mean?
L: If you ask me a question,
that I don’t have to answer it.
Detective G: Correct. If we
talked for however long we
talked and all of a sudden
you decided, you know what,
I don’t want to talk anymore,
do you have that right?
L: Mm-hm [yes].
Conclusions
Regarding
Oral Miranda
Warnings
Miranda warnings can be
presented orally in clear and
unambiguous language,
understandable at a secondgrade level, even when
including warnings that
(a) the assertion of rights
will stop further
interrogation and (b) the
exercising of rights cannot
be used as incriminating
evidence.
The Oral Miranda Warning
Checklist should assist in
addressing whether the
record clearly shows a
knowing, intelligent, and
voluntary waiver of Miranda
rights.
go to
El Paso presentation
Addressing the Voluntariness
of a Confession
One of the purposes of the
safeguards prescribed by the
Miranda decision was to free courts
from the task of scrutinizing
individual cases to try to determine,
after the fact, whether particular
confessions were voluntary
Berkemer v. McCarty, 468 U.S. 420
(1984).
But a signed Miranda waiver is no
guarantee that a confession was
given voluntarily, in large part
because police use trickery to
extract confessions from at-leastinitially unwilling suspects (Leo,
1992, 1996a, 1996b, 2001b).
Leo, R. A. (1992). From coercion to
deception: The changing nature of
police interrogation in America.
Crime, Law, and Social Change, 18,
35-59.
Leo, R. (1996a). Inside the
interrogation room. Journal of
Criminal Law and Criminology, 86,
266-303.
Leo, R. (1996b). Miranda’s revenge:
Police interrogation as a confidence
game. Law and Society Review, 30,
259-288.
Leo, R. (2001b). Questioning the
relevance of Miranda in the TwentyFirst Century. Michigan Law
Review, 99(5), 1000-1029.
Therefore, some courts, including
Massey v. State 820 So.2d 1003
(Fla.App. 4 Dist. 2003), have
determined that a defendant’s claim
that his or her confession was
induced by police trickery is
sufficient legal grounds to require
an evidentiary hearing to determine
whether the confession should be
suppressed.
The legal issue to be considered by
the judge at the suppression
hearing might be presented as
follows: Did the State fail to prove,
by a preponderance of the
evidence, that the Defendant’s
supposed confession was freely
and voluntarily made under the
totality of the circumstances?
In a particular case, who frames
the legal question?
Legal Context
“It is now axiomatic that a defendant
in a criminal case is deprived of due
process of law if his conviction is
founded, in whole or in part, upon
an involuntary confession, without
regard for the truth or falsity of the
confession, and even though there
is ample evidence aside from the
confession to support the
conviction. …
Equally clear is the defendant’s
constitutional right at some stage in
the proceedings to object to the use
of the confession and to have a fair
hearing and a reliable determination
on the issue of voluntariness, a
determination uninfluenced by the
truth or falsity of the confession”
(pp. 376-377).
Jackson v. Denno, 378 U.S. 368
(1964)
Sims v. Georgia, 385 U.S. 538
(1967)
The Court clarified that the
voluntariness of a confession must
be decided by the trial judge prior to
submitting the confession to the
jury.
What is the standard of proof?
How certain must the evidence be
that the defendant’s statements
were made voluntarily?
“The prosecution must prove at
least by a preponderance of the
evidence that the confession was
voluntary. Of course, the States are
free, pursuant to their own law, to
adopt a higher standard.”
Lego v. Twomey, 404 U.S. 477, 489
(1972).
Does the defense get a second
crack at it?
If the Court has already deemed the
defendant’s statement to have been
voluntary, can the defense
nevertheless challenge the
voluntariness of the defendant’s
statement at jury trial?
Yes
(unanimous)
Crane v. Kentucky, 476 U.S. 683
(1986)
To do:
1. Read the Crane case.
2. Note what was in the proffer.
3. Note that the Supreme Court
ruled that such testimony must be
admitted at jury trial.
4. So include that in your testimony
- and in your report.
“The manner in which a statement
was extracted is, of course, relevant
to the purely legal question of its
voluntariness, a question most, but
not all, States assign to the trial
judge alone to resolve. …
But the physical and psychological
environment that yielded the
confession can also be of
substantial relevance to the ultimate
factual issue of the defendant’s guilt
or innocence. …
Confessions, even those that have
been found to be voluntary, are not
conclusive of guilt. And, as with
any other part of the prosecutor’s
case, a confession may be shown
to be insufficiently corroborated or
otherwise . . . unworthy of belief. …
Indeed, stripped of the power to
describe to the jury the
circumstances that prompted his
confession, the defendant is
effectively disabled from answering
the one question every rational juror
needs answered: If the defendant
is innocent, why did he previously
admit his guilt? …
Accordingly, regardless of whether
the defendant marshaled the same
evidence earlier in support of an
unsuccessful motion to suppress, and
entirely independent of any question
of voluntariness, a defendant’s case
may stand or fall on his ability to
convince the jury that the manner in
which the confession was obtained
casts doubt on its credibility.”
Crane v. Kentucky, 476 U.S. 683,
688-689 (1986).
There must be some element of
police coercion for a confession to
be ruled involuntary.
Colorado v. Connelly, 479 U.S. 157
(1986).
What do courts consider in the
totality-of-the-circumstances
analysis?
Courts determine the factual
circumstances surrounding the
confession, assess the
psychological impact on the
accused, and evaluate the legal
significance of how the accused
reacted.
The decisions do not turn on the
presence or absence of a single
controlling criterion, but reflect a
careful scrutiny of all the
surrounding circumstances,
including both the characteristics of
the accused and the details of the
interrogation.
Schneckloth v. Bustamonte 412
U.S. 218, 226 (1973):
- youth of the accused,
- lack of education,
- low intelligence,
- lack of any advice to the accused of
his constitutional rights,
- length of detention,
- repeated and prolonged nature of
the questioning,
- use of physical punishment such as
the deprivation of food or sleep
The ultimate issue has been
defined in psychological terms in
Culombe v. Connecticut, 367 U.S.
568, 602 (1961):
“Is the confession the product of an
essentially free and unconstrained
choice by its maker? If it is, if he
has willed to confess, it may be
used against him. If it is not, if his
will has been overborne and his
capacity for self determination
critically impaired, the use of his
confession offends due process.”
What is the problem with the
Culombe conceptualization of
whether a confession was
voluntary?
Courts do not look to experts to
decide whether a particular
defendant’s will was overborne, due
to the inherent subjectivity of such a
question. Rather, psychologists can
provide useful information about the
person, the situation, and the
person-situation interaction.
The psychologist can assist
the Court in the following
ways:
1. Gather and analyze
information regarding “the
physical and
psychological
environment in which the
confession was obtained”
- Crane v. Kentucky, 476 U.S. 683
(1986).
2. Gather and analyze
information about the
interrogation techniques
employed by the police.
3. Assess the defendant’s
current mental status,
including intelligence,
memory, reading
comprehension, listening
comprehension, personality,
and psychopathology.
4. Reconstruct the defendant’s
mental state during the
confession.
5. Assist the judge in
understanding the effect of the
interrogation techniques on the
defendant throughout the
interrogation.
How do we do those things?
1. Gather and analyze
information regarding “the
physical and psychological
environment in which the
confession was obtained.”
In Crane v. Kentucky (1986, p. 686)
the trial court did not allow the
defense to present evidence to the
jury about “the size and other
physical characteristics of the
interrogation room, the length of the
interview, and various other details
about the taking of the confession.”
The U.S. Supreme Court reversed
and remanded the case, noting that
evidence surrounding a confession
bears on both the confession’s
voluntariness and its credibility.
Courts must allow such evidence to
be presented to the judge to
determine voluntariness, and to the
jury to determine its credibility.
Some relevant questions:
Who initiated contact? Did the
police approach the suspect, or did
the suspect approach them? At
what point did the police tell, show,
or take actions to suggest that the
suspect was not free to go?
What conversations, if any, took
place at the location where the
police and suspect first came into
contact, during transport to the
police station, in the hallway, and so
on?
How much time elapsed between
the time when the police and
suspect first came into contact and
when the Miranda waiver form was
signed? What happened during that
time?
Sources of information:
Information about the physical and
psychological environment can
be gleaned from the recording of
the interrogation, if it was recorded;
from the interrogators via their
reports, notes, and depositions; and
from questioning the defendant.
Discrepancies?
In your jurisdiction, are you allowed
to interview the law-enforcement
officers?
Construct a time line?
2. Gather and analyze
information about the
interrogation techniques
employed by the police.
Do you know what it is that you
seek?
(What are you looking for?)
Gudjonsson, G. H. (2003). The
Psychology of Interrogations and
Confessions: A Handbook. West
Sussex, England: Wiley
Leo, R. A. (1992). From coercion to
deception: The changing nature of
police interrogation in America.
Crime, Law, and Social Change, 18,
35-59.
Ofshe, R., & Leo, R. (1997). The social
psychology of police interrogation: The
theory and classification of true and
false confessions. Studies in Law,
Politics, and Society, 16, 189-251.
Inbau, F. E., Reid, J. E., Buckley, J. P.,
& Jayne, B. C. (2004). Criminal
Interrogation and Confessions (4th ed.).
Gaithersburg, MD: Aspen.
Drizin, S. A. & Leo, R. A. (2004).
The Problem of False Confessions
in the Post-DNA World, 82 N.C. L.
Rev. 891, 894-900.
3. Assess the defendant’s current
mental status, including
intelligence, memory, reading
comprehension, listening
comprehension, personality, and
psychopathology.
Many of the same procedures
mentioned previously
What FAIs are useful for addressing
whether an admission or confession
was obtained voluntarily?
In considering a person’s
vulnerability to the pressure of
interrogation, three personality
constructs have been considered to
be directly relevant: interrogative
suggestibility, compliance, and
acquiescence.
Interrogative suggestibility is
defined as “the extent to which,
within a closed social interaction,
people come to accept messages
communicated during formal
questioning, as the result of which
their subsequent behavioral
response is affected.”
This definition comprises five
interrelated components which form
an integrated part of the
interrogative process:
1. a social interaction;
2. a questioning procedure;
3. a suggestive stimulus;
4. acceptance of the stimulus; and
5. a behavioral response”
(Gudjonsson, 2003, p. 345).
People with low intelligence or
memory problems are generally
more uncertain about the answer to
interrogators’ questions and are
therefore more prone to change
their answers in response to
negative feedback.
If an interrogator succeeds in
getting a suspect to doubt his
or her memories, that enhances the
likelihood that the suspect will
change his or her answers to the
interrogator’s questions.
Suspects who generally have
greater interpersonal trust are more
prone to believe that the
interrogators’ intentions are genuine
and that there is no trickery involved
in the questioning.
Interrogators who
promote trust and use subtle
leading questions are more likely to
succeed in getting an uncertain
suspect to change his or her
responses.
People are more likely to accept the
interrogator’s cues to change their
answers, if they believe that:
1. they must provide a definite
answer,
2. they should know the answer to
the question, and
3. they are expected to know the
answer and be able to give it.
Can individual differences in
interrogative suggestibility be
measured reliably?
Yes
Gudjonsson Suggestibility Scales
Susannah.Brown@informa.com
Compliance
According to the Gudjonsson-Clark
model, suggestibility implies personal
acceptance of the information
provided, but compliance does not.
Broadly, compliance refers to the
tendency of a person to go along with
– comply with – propositions,
requests, or instructions, in order to
achieve some immediate
interpersonal gain.
The compliant person is
fully aware that his or her
responses are being influenced.
The person may disagree with the
proposition or request made, but he
or she nevertheless reacts in a
compliant way.
Are there any FAIs to measure
compliance?
Qualified yes
Gudjonsson Compliance Scale
(GCS)
Acquiescence
Acquiescence refers to the
tendency of a person to answer
questions in the affirmative,
regardless of the content.
Are there any FAIs to measure
compliance?
No test score, and no combination
of test scores, tells whether a
given defendant gave a true or a
false confession (or a partially true
and partially false confession), or
whether a given confession should
be deemed to have been voluntary
or coerced.
While scores on tests measuring
interrogative suggestibility,
compliance, and acquiescence are
all potentially helpful for
understanding a person’s
vulnerability to interrogation
procedures, such scores should not
be interpreted or conveyed as if
they had talismanic significance.
low IQ = incompetence?
schizophrenia = insane?
suggestible = false confession?
4. Reconstruct the defendant’s
mental state during the
confession.
similar to the process of
reconstructing a defendant’s mental
state at the time of an alleged
offense
Rogers, R., & Shuman, D. (2000).
Conducting Insanity Evaluations
(2nd ed.). New York: Guilford.
Relevant information comes from
1. an assessment of the person’s
current mental state,
2. data regarding the person’s
mental state at other points in time
(e.g., previous test scores, results
of previous psychological
assessments), …
3. data about the setting and the
interrogation procedures used, and
4. data about other factors that
would be likely to affect a person’s
mental state (e.g., alcohol or drug
use, medication, sleep deprivation,
family stress, fear, etc.).
As Gudjonsson (2003, p. 314)
notes, “Any information obtained
from the accused must, whenever
possible, be supported or
corroborated by other evidence,
because it is essentially selfserving.”
Are there any FAIs useful in
reconstructing a defendant’s mental
state at the time of an interrogation?
Yes
Gudjonsson Confession
Questionnaire – Revised (GCQ-R)
Use of the GCQ-R can help a
defendant articulate why he or she
confessed, although, as it is when
simply asking the defendant why he
or she confessed, there are no
guarantees that the defendant’s
responses will be truthful.
5. Assist the judge in
understanding the effect of the
interrogation techniques on the
defendant throughout the
interrogation.
As Gudjonsson (2003, p. 315)
notes, “When leading questions
have been asked by the
interrogators and persuasive
manipulation and pressure [have
been] employed, then these have to
be related to the accused’s
personality and mental state, as
well as to the circumstances of the
situation.”
Focusing on confessions generally
(not just false confessions),
Gudjonsson (2003, p. 157)
summarizes research into why
subjects confess as follows:
“The available evidence indicates
that suspects confess due to a
combination of factors, rather than
to one factor alone. Three general
factors appear to be relevant, in
varying degree, to most suspects.
…
These relate to an internal pressure
(e.g., feelings of remorse, the need
to talk about the offense), external
pressure (e.g., fear of confinement,
police persuasiveness), and
perception of proof (e.g., the
suspects’ perceptions of the
strength of evidence against them).
After psychologists identify the
defendant’s vulnerabilities, they
can help the judge recognize how
interrogators have exploited those
weaknesses, if they have; …
how interrogators have manipulated
information to alter the suspect’s
perceptions, if they have; and how
interrogators have manipulated
external pressures, if they have.
Of course, it is up to the judge to
render the ultimate decision about
whether a confession was illegally
coerced.
Addressing the Reliability of a
Confession
As used here, “unreliable” does not
necessarily means false.
In simple terms, it means
“You can’t count on it”
or
“You don’t know what it means”
or
“uncertain.”
Richard A. Leo, Steven A. Drizin,
Peter J. Neufeld, Bradley R. Hall &
Amy Vatner
Bringing Reliability Back In: False
Confessions and Legal Safeguards
in the Twenty-First Century
Wisconsin Law Review, Volume
2006 (2), 479-538.
http://hosted.law.wisc.edu/lawrevie
w/issues/2006-2/
“Regrettably, neither the Fifth
Amendment privilege against selfincrimination nor the prophylactic
Miranda rules offer any significant
protection against the elicitation or
admission of false and unreliable
confessions” (Leo et al., 2006, 498).
Two Doctrines of Confession
Admissibility
A. The Voluntariness Rule
B. The Corroboration Rule
A. The Voluntariness Rule
Common Law Voluntariness
The King v. Warickshall,
168 Eng. Rep. 234, 234-35 (K.B.
1783).
“Confessions are received in
evidence, or rejected as
inadmissible, under a consideration
whether they are or are not intitled
[sic] to credit. A free and voluntary
confession is deserving of the
highest credit, because it is
presumed to flow from the strongest
sense of guilt . . .
but a confession forced from the
mind by the flattery of hope, or by
the torture of fear, comes in so
questionable a shape . . . that no
credit ought to be given to it; and
therefore it is rejected.
Warickshall was adopted in the U.S.
in
Hopt v. Utah, 110 U.S. 574 (1884).
In the U.S. the constitutional
protection against involuntary
confessions is based upon both the
Fifth Amendment’s privilege against
compelled self-incrimination and the
Fourteenth Amendment’s due
process clause.
See Leo et al. (2006) for details.
“The Supreme Court relied on
different and sometimes conflicting
rationales, and the due process
voluntariness decisions evolved
throughout the twentieth century. …
However, the 1930s and 1940s saw
the ascendance of another idea—
that courts should only admit
confessions into evidence that were
the product of a free and
independent will. …
A third but subordinate rationale
underlying the voluntariness test
was that confessions elicited
through fundamentally unfair police
methods should be excluded so as
to deter offensive police behavior,
regardless of whether the suspect
confessed involuntarily or his
statements were likely to be
trustworthy. …
These underlying purposes—
reliability, protecting free will, and
fundamental fairness—roughly
correspond to the three goals of the
adversary system: promoting truthfinding, protecting individual rights,
and checking state power” (Leo et
al., 2006, p. 494).
The template of the due process
voluntariness test became a
balancing analysis of whether the
pressures and police techniques of
the interrogation, as they interacted
with the interrogated suspect’s
personal susceptibilities, were
sufficient to render his confession
involuntary.
In Rogers v. Richmond,
365 U.S. 534 (1961):
A confession’s admissibility must be
determined by whether the police
interrogation methods were such
“as to overbear petitioner’s will to
resist and bring about confessions
not freely self-determined—a
question to be answered with
complete disregard of whether or
not petitioner in fact spoke the
truth.”
The “overbearing of the will”
standard became the primary
consideration of the modern due
process voluntariness test.
Miranda v. Arizona, 384 U.S. 436
(1966) introduced a new, easily
administered test of admissibility for
confession evidence.
In practice, Miranda offers little or
no protection against eliciting false
or unreliable confessions from
innocent suspects or their
admission into evidence, for two
reasons:
1. 80% or more of criminal suspects
waive their Miranda rights and
submit to police interrogation.
Leo, R. A. (1966). Inside the
Interrogation Room, 86 J. Crim. L. &
Criminology, 266.
2. “Once the rights have been issued
and waived, Miranda does not restrict
deceptive or suggestive police tactics,
manipulative interrogation strategies,
hostile or overbearing questioning
styles, lengthy confinement, or any of
the inherently stressful conditions of
modern accusatorial interrogation that
may lead the innocent to confess. …
Once police issue warnings and
obtain a waiver, Miranda is virtually
irrelevant to the subsequent
interrogation process or as a
safeguard against false
confessions. …
Not surprisingly, in virtually all of the
documented false confessions
cases, the innocent suspects either
explicitly or implicitly waived their
Miranda rights” (Leo et al., 2006,
497-498).
Meanwhile, “Miranda … has
effectively displaced the due
process voluntariness standard as
the primary test of a confession’s
admissibility. The courts’ analyses
have shifted from the voluntariness
of a confession to the voluntariness
of the Miranda waiver. …
Regrettably, neither the Fifth
Amendment privilege against selfincrimination nor the prophylactic
Miranda rules offer any significant
protection against the elicitation or
admission of false and unreliable
confessions”
(Leo et al., 2006, p. 498).
Colorado v. Connelly,
479 U.S. 157 (1986).
“The Death Knell of the Reliability
Rationale for the Voluntariness
Rule”
The Supreme Court ruled
Connelly’s confession admissible,
despite its apparent
untrustworthiness, because there
was no evidence of police coercion.
“A statement rendered by one in the
condition of respondent might be
proved to be quite unreliable, but
this is a matter to be governed by
the evidentiary laws of the forum ...
and not by the Due Process Clause
of the Fourteenth Amendment”
Colorado v. Connelly, p. 160.
B. The Corroboration Rule
The corroboration rule requires that
additional evidence, other than the
confession, exists to support the
crime.
the rule does not add to procedural
and constitutional safeguards
considered necessary to prevent
coerced confessions.
C. The Trustworthiness Standard
This new rule of corroboration was
announced by the Supreme Court
in two cases issued on the same
day, Opper v. United States, 348
U.S. 84 (1954) and Smith v. United
States, 348 U.S. 147 (1954).
Applies in:
- most federal courts
- many state courts
The trustworthiness standard
requires corroboration of the
confession itself.
“Under the trustworthiness
standard, before the state may
introduce a confession, it ‘must
introduce substantial independent
evidence which would tend to
establish the trustworthiness of the
[confession].’ …
In effect, the trial court judge acts
as a gatekeeper and must
determine, as a matter of law, that a
confession is trustworthy before it
can be admitted. In making the
trustworthiness determination, the
trial court judge is to consider ‘the
totality of the circumstances.’ …
Only after a confession is deemed
trustworthy by a preponderance of
the evidence may it be admitted into
evidence. …
The Utah Supreme Court described
this gatekeeping function as similar
to a determination about the
voluntariness of a confession”
(Leo et al., 2006, p. 508).
State v. Lucas, 152 A.2d 50 (N.J.
1959), stated that “No greater
burden should be required of the
State than independent
corroborative proof tending to
establish that when the defendant
confessed he was telling the truth,
plus independent proof of the loss
or injury.”
See
State of New Mexico v. Weisser,
Opinion Number: 2007-NMCA-015
Filing Date: December 22, 2006
Docket No. 25,079
at
http://www.supremecourt.nm.org/op
inions/VIEW/07ca-015.html
D. A New Reliability Test
1. Reliability Test for Recorded
Interrogations and Confessions
2. Stricter Reliability Test for
Unrecorded Interrogations and
Confessions
1. Reliability Test for Recorded
Interrogations and Confessions
Judges evaluating the reliability of
confessions that are the product of
a recorded interrogation should
weigh three factors:
1) whether the confession contains
nonpublic information that can be
independently verified, would only
be known by the true perpetrator or
an accomplice, and cannot likely be
guessed by chance; …
2) whether the suspect’s confession
led the police to new evidence
about the crime; and
3) whether the suspect’s
postadmission narrative “fits” (or
fails to fit) with the crime facts and
existing objective evidence.
“As in the case of voluntariness
hearings, challenges to the
reliability of confession evidence
should commence upon filing a
motion to exclude by the defense.
The motion can be styled as a
motion in limine under local rules of
evidence that track Federal Rule of
Evidence 403. …
Although confession evidence
failing to meet one or more of the
factors in our test is clearly relevant
under the Federal Rules of
Evidence, it may see confession
evidence as dispositive of guilt,
even when it is false, its prejudicial
effect can be devastating to an
innocent defendant. …
This is the reason Rule 403 allows
judges to exclude unreliable
evidence on the ground that its
probative value is outweighed by its
prejudicial effect” (pp. 530-531).
Federal Rules of Evidence:
http://www.law.cornell.edu/rules/fre/
rules.htm
ARTICLE IV. RELEVANCY AND
ITS LIMITS
Rule 401
Definition of "Relevant Evidence"
"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.
Rule 402
All relevant evidence is admissible,
except as otherwise provided by the
Constitution of the United States, by
Act of Congress, by these rules, or
by other rules prescribed by the
Supreme Court pursuant to
statutory authority. Evidence which
is not relevant is not admissible.
Rule 403. 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.
State Rules of Evidence:
http://expertpages.com/news/state_
rules_of_evidence.htm
Example: Florida:
http://tinyurl.com/35rybk
90.403 Exclusion on grounds of
prejudice or confusion. (FL)
Relevant evidence is inadmissible if
its probative value is substantially
outweighed by the danger of unfair
prejudice, confusion of issues,
misleading the jury, or needless
presentation of cumulative
evidence.
RULE 403 (TX)
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, or
needless presentation of cumulative
evidence.
Yes, the suspect confessed.
How do we know it was not a false
confession? (tripartite test)
What would have caused this
suspect to confess if he is not
guilty?
“In the last two decades, social
scientists and legal scholars have
published hundreds of empirical
studies on police interrogations,
false confessions, and related
issues. …
These studies have extensively
documented the existence of false
confessions, offered an empirically
informed psychological analysis of
interrogation techniques and the
influence process that leads to
confessions, …
suggested an empirical analysis of
the causes and risk factors for false
confessions, analyzed the impact of
confession evidence and its
consequences in the criminal justice
system, and provided an analysis of
the indicia of false and unreliable
confessions” (Leo et al., 2006, p.
514).
“There is now no question that false
confessions occur with sufficient
regularity to warrant the imposition
of legal safeguards such as
electronic recording requirements
and meaningful corroboration rules
in order to minimize the wrongful
conviction of the innocent” (p. 515).
The same techniques that police
use to get guilty suspects to
confess, can and do lead some
innocent suspects to confess.
(If applicable) Such techniques
were used in this case. Here’s what
I mean …
“Psychological research has shown that
interrogation is a sequenced, multistep
influence process through which
detectives seek to persuade a suspect
that he or she is indisputably caught,
and that the most viable way to mitigate
punishment or to escape the situation is
to agree with the interrogator’s
proposed scenario and confess. …
Interrogators try to break down a
suspect’s anticipated resistance by:
repeatedly accusing the suspect of
committing the crime and lying
about it; cutting off and interrupting
denials;
attacking alibis or assertions of
innocence as illogical, implausible,
or untrue; insisting that no one will
believe the suspect’s protestations
of innocence; and, most
importantly, accumulating real or
fabricated evidence said to prove
the suspect’s guilt incontrovertibly.
These ‘negative incentives’ are
intended to convince the suspect
that it is futile to deny the crime and
that he or she will be successfully
prosecuted and convicted if such
denials continue. …
In addition to these techniques,
detectives also use ‘positive
incentives’ or inducements to
motivate the suspect to believe that
it is in his or her self-interest to
comply with the interrogator’s
demand to confess. …
These inducements range from
intangible suggestions that the
suspect will feel better if he or she
confesses, to the implication that
the interrogator or system will favor
or help a suspect who confesses, to
various forms of promises and
threats”
(Leo et al., 2006, pp. 515-516).
“Empirical research has also
considerably advanced our
understanding of the psychological
causes of, and risk factors for,
police-induced false confessions. …
The primary cause of false
confession is the interrogator’s use
of psychologically coercive
interrogation techniques such as
implicit or explicit promises of
leniency in exchange for confession
and threats of differential
punishment in the absence of
confession. …
Other coercive techniques include
lengthy or incommunicado
interrogation; depriving essential
necessities such as food, sleep,
water, or access to bathroom
facilities; refusing to honor a
suspect’s request to terminate
interrogation; and inducing extreme
exhaustion and fatigue. …
Some researchers have argued that
additional situational risk factors
that may cause innocent people to
confess falsely include physical
custody and isolation, confrontation,
and minimization techniques” (pp.
516-517).
“Even though psychological
coercion is the primary cause of
police-induced false confessions,
individuals differ in their ability to
withstand interrogative pressure,
and thus in their susceptibility to
confess falsely. …
Individuals who are highly
suggestible or highly compliant—all
other things being equal—are more
likely to confess in response to
police interrogation pressure. …
Mentally handicapped or cognitively
impaired individuals, children,
juveniles, and the mentally ill are
also unusually vulnerable to police
interrogation pressure and are more
likely to confess falsely as a result”
(p. 517).
For an overlapping list of personal
factors that make some people
more vulnerable to police influence
than others, see DeClue, 2005, pp.
173-174.
For a lengthy list of interrogation
procedures expected to increase
the risk of false confessions, see
DeClue, 2005, pp. 169-172.
Summary regarding the probative
value of the defendant’s statement:
1) Reliability of the process of
interrogation
2) Reliability of the content of the
admission statement
So, if a confession’s veracity is in
doubt, is that prejudicial to the
defendant?
Leo et al., 2006:
“Social scientists and legal scholars
have also empirically studied the
impact of confession evidence on
triers of fact and the consequences
of false confessions for the
American criminal justice system. A
suspect’s confession sets in motion
a seemingly irrefutable presumption
of guilt among justice officials, the
media, the public, and lay jurors. …
Taken together, these studies converge
on the same conclusion: as the U.S.
Supreme Court stated in Arizona v.
Fulminante, 499 U.S. 279, 296 (1991),
‘a confession is like no other evidence.’
It is ‘uniquely potent’ and ‘profoundly
prejudicial’ in its ability to bias the trier
of fact in favor of the prosecution,
overwrite contradictory or exculpatory
case evidence, and lead to the wrongful
conviction of the innocent” (518-519).
More prejudicial than probative?
“By definition, an unreliable
confession can have little probative
value. Given juror overreliance on
confession evidence, unreliable
confessions will be unfairly
prejudicial once entered into
evidence against the accused” (p.
524).
“Rule 403 (and its state analogues)
directs trial judges to conduct a
general balancing test to ensure
that weakly probative or highly
prejudicial evidence is not
introduced at trial if the potential
harm from doing so exceeds the
potential benefit” (p. 524).
“Because juries often see
confession evidence as dispositive
of guilt, even when it is false, its
prejudicial effect can be devastating
to an innocent defendant. This is
the reason Rule 403 allows judges
to exclude unreliable evidence on
the ground that its probative value
is outweighed by its prejudicial
effect” (p. 531).
Case Example:
Central Park Jogger
In April 1989, a young woman was
attacked while jogging in New York
City’s Central Park. She was
dragged into a wooded area,
beaten within an inch of her life, and
raped. When her body was finally
discovered, she had been beaten
so severely that she had lost nearly
80 percent of her blood.
Three boys had been arrested for
creating mayhem in the park that
night.
Their statements during
interrogation led to three more boys
being arrested.
The police obtained confessions
from five of the boys. All five were
convicted of participating in the
rape, in spite of the fact that DNA
from a cervical swab and from a
sock excluded all five boys.
The admission of the confessions
into evidence, and the convictions
and sentences, were upheld on
appeal.
In January 2002, nearly thirteen
years after the attack on the jogger,
a convict named Matias Reyes
contacted authorities and informed
them that he, acting alone, had
raped the Central Park Jogger.
Reyes’s DNA matched DNA taken
from semen recovered from the
Central Park Jogger crime scene.
On December 19, 2002, Judge
Charles Tejada granted the motion
and vacated all of the convictions of
the original Central Park Jogger
defendants.
June 11, 1989
Reyes raped, robbed, stabbed, and
beat a twenty-four-year-old woman.
June 14, 1989
Reyes raped, robbed, and stabbed
to death another twenty-four-yearold woman.
July 19, 1989
Reyes raped, robbed, and cut a
twenty-year-old woman.
July 27, 1989
Reyes robbed and punched a
twenty-eight-year-old woman whom
he had intended to rape before
neighbors interrupted the crime.
August 5, 1989
Reyes raped and robbed a twentyfour-year-old woman.
“The pretrial reliability test that we
propose … will prevent judges from
admitting false confessions into
evidence, thus preventing juries from
wrongfully convicting the innocent. In
so doing, it will also force police to
focus on gathering reliable evidence so
that true perpetrators, such as Matias
Reyes, are no longer free to continue
inflicting their violent crimes on
innocent victims.”
Happy Trails
Greg DeClue
Sarasota, FL
http://gregdeclue.myakkatech.com/
gregdeclue@mailmt.com