False Confessions and the Admissibility of Expert Testimony on False Confessions Alexander Sasha Bardey MD Jonathan Moore Esq. Harvey Fishbein Esq.

False Confessions and the Admissibility of Expert Testimony on False Confessions

Alexander Sasha Bardey MDAlexander Sasha Bardey MD

Jonathan Moore Esq.Jonathan Moore Esq.

Harvey Fishbein Esq.Harvey Fishbein Esq.

False Confessions

… … are self-incriminating statements that go to:are self-incriminating statements that go to:

-- Motive: Motive: ““Well, I guess I could have been pretty Well, I guess I could have been pretty ticked ticked off at my wife for leaving me alone with the off at my wife for leaving me alone with the baby baby while she went to the party.while she went to the party.”” [ [Illinois V. DeBord]Illinois V. DeBord]

-- Opportunity: Opportunity: ““Maybe youMaybe you’’re right and it was re right and it was actually actually midnight before I got home..midnight before I got home..”” [California V. [California V. Silapie]Silapie]

-- Method: Method: ““I sure donI sure don’’t remember it, but maybe my t remember it, but maybe my hand sometimes slipped when I spotted the girls.hand sometimes slipped when I spotted the girls.”” [Illinois V. Cardemone][Illinois V. Cardemone]

Perpetrators of the false confession

Those who are totally innocent of the Those who are totally innocent of the crime they are alleged to have crime they are alleged to have committedcommitted

Those who are involved in the alleged Those who are involved in the alleged offence but overstated their offence but overstated their involvementinvolvement

Usually in response to a demand for a Usually in response to a demand for a confession and is either intentionally confession and is either intentionally fabricated as a response to internal, fabricated as a response to internal, external factors, or bothexternal factors, or both

Peine Forte et Dure“Hard and Forceful Punishment”

Method of torture used in England until 1741 Method of torture used in England until 1741 in England to extract a confession/pleain England to extract a confession/plea

Truly the Truly the ““weight of the evidenceweight of the evidence”” This is the only US case, of Giles Corey at the This is the only US case, of Giles Corey at the

Salem Witch Trials in the 1690Salem Witch Trials in the 1690’’ss

False Confessions Happen

Salem Witch Trials – about 50 women confessed Salem Witch Trials – about 50 women confessed to witchcraftto witchcraft

Gary Dotson- 1989, fist innocent exonerated by Gary Dotson- 1989, fist innocent exonerated by DNADNA

1989- Central Park Jogger Case 1989- Central Park Jogger Case Innocence Project – involved in about 200 post-Innocence Project – involved in about 200 post-

conviction DNA exonerations and about 25% of conviction DNA exonerations and about 25% of those wrongly convicted, false confession was a those wrongly convicted, false confession was a contributing factor.contributing factor.

A North American survey of 631 police A North American survey of 631 police investigators revealed that respondents estimated investigators revealed that respondents estimated from their personal experience that 4.78% of from their personal experience that 4.78% of innocent people provided false confessions during innocent people provided false confessions during interrogations (Kassin et. al. 2007)interrogations (Kassin et. al. 2007)

Myths

Everyone in prison claims to be innocent.Only people who live “on the edge” are charged with crimes they didn’t commit.People who are exonerated must have done something to get charged in the first place.Wrongful convictions are extremely rare.

Exonerations prove the system works.

It can’t happen to me.

Facts

5% to 10% of U.S. prison population are 5% to 10% of U.S. prison population are factually innocent of the crimes of which factually innocent of the crimes of which they were convicted.*they were convicted.*

In raw numbers, that means as many as In raw numbers, that means as many as 200,000 innocent people are imprisoned.200,000 innocent people are imprisoned.

Of those innocent people, 90% pled Of those innocent people, 90% pled guilty.guilty.

*Based on 1996 National Institute of Justice Report.

Confessions as Confessions as EvidenceEvidence

About 20% of all confessions are About 20% of all confessions are later recanted (suspect states later recanted (suspect states that confession was false)that confession was false)

Among first 70 DNA exonerations Among first 70 DNA exonerations studied, 21% involved false studied, 21% involved false confessionsconfessions

Why would someone falsely Why would someone falsely confess to a serious crime?confess to a serious crime?

Author(s)/Year Number in Study

Number of False Confession

% Wrongful Conviction Due to False Confession

Bedau/Radelet (1987)

350 49 14%

Leo/Ofshe (1998)

60 60 N/A

Warden (2003) 42 25 60%

Drizin/Leo (2004)

125 125 N/A

Gross Et. Al. (2005)

340 51 15%

Innocence Project (2006)

180 44 24%

Aggregated Studies of Documented False Confessions

Causes of Wrongful ConvictionCauses of Wrongful Conviction

False confessions in False confessions in the laboratorythe laboratory

KassinKassin’’s research: student participants s research: student participants accused of causing a computer crashaccused of causing a computer crash

All 75 participants initially denied All 75 participants initially denied chargecharge

When confederate said she saw the When confederate said she saw the participant cause the crash, all participant cause the crash, all participants signed a confession, and participants signed a confession, and 2/3 of the participants came to believe 2/3 of the participants came to believe that they had actually done it!that they had actually done it!

Why would someone confess to Why would someone confess to a crime that they did not a crime that they did not

commit?commit?

Richard Conti cites four major police tactics used to Richard Conti cites four major police tactics used to elicit a elicit a ““false confessionfalse confession”” in his article, in his article, The The Psychology of False ConfessionsPsychology of False Confessions::

Psychological deceit / reporting non-existing Psychological deceit / reporting non-existing evidence as factualevidence as factual ( (““We have an eyewitness We have an eyewitness that puts you at the scene of the crime when it that puts you at the scene of the crime when it occurredoccurred””))

Minimizing seriousness of crime Minimizing seriousness of crime (( ““Someone Someone else in your situation may have acted the same else in your situation may have acted the same way you didway you did””))

GuiltGuilt ( (““You mean to tell us that you left your wife You mean to tell us that you left your wife alone in the woods!?alone in the woods!?””))

FearFear ( (““Tell us what happened or weTell us what happened or we’’ll make sure ll make sure you get the needle [lethal injection]you get the needle [lethal injection]””))

Factors that Induce a Factors that Induce a False ConfessionFalse Confession

External:External:– Nature of InterrogationNature of Interrogation– Sensational nature of crimeSensational nature of crime– Socio-political factorsSocio-political factors

Internal:Internal:– CulturalCultural– IndividualIndividual

Lie DetectionLie Detection

The belief that interrogators can be trained to be The belief that interrogators can be trained to be highly accurate human lie detectors is both wronghighly accurate human lie detectors is both wrong

It is not supported by any scientific researchIt is not supported by any scientific research There is no human behavior or physiological response There is no human behavior or physiological response

that is unique to deception, and therefore no reliable that is unique to deception, and therefore no reliable behavioral signs of deception or truth telling. behavioral signs of deception or truth telling.

The same behaviors, mannerisms, gestures and The same behaviors, mannerisms, gestures and attitudes that police trainers believe are the deceptive attitudes that police trainers believe are the deceptive reactions of the guilty may just as easily be the reactions of the guilty may just as easily be the truthful (but nervous) reactions of the innocent. truthful (but nervous) reactions of the innocent.

Studies show that police investigators can accurately Studies show that police investigators can accurately distinguish true and false denials slightly more than distinguish true and false denials slightly more than 50% of the time. 50% of the time.

Goals of InterrogationGoals of Interrogation

To gain informationTo gain information To gain an admission of guiltTo gain an admission of guilt Legal methods of interrogation Legal methods of interrogation

includeinclude– MinimizationMinimization– MaximizationMaximization– Rapport buildingRapport building

The Two Step Process The Two Step Process of Interrogation of Interrogation

First Step: convince the suspect First Step: convince the suspect that he is caught bythat he is caught by– repeated accusations (of committing repeated accusations (of committing

the offense, of lying when denying the offense, of lying when denying committing the offense)committing the offense)

– cutting off a suspectcutting off a suspect’’s denials s denials – confronting the suspect with confronting the suspect with

evidence of his apparent guiltevidence of his apparent guilt

The Two Step Process The Two Step Process of Interrogationof Interrogation

Second Step: motivate the suspect to Second Step: motivate the suspect to believe that it is to his benefit to confess believe that it is to his benefit to confess by offering:by offering:– ““inducementsinducements”” such as feeling better by such as feeling better by

getting it off his chest, court leniency, getting it off his chest, court leniency, orpromises of release from interrogation, of orpromises of release from interrogation, of reduced charges, of a shorter sentence, or of reduced charges, of a shorter sentence, or of probationprobation

– A scenario with reduced personal culpability A scenario with reduced personal culpability (self-defense instead of intentional act)(self-defense instead of intentional act)

– or offering explicit threats (or higher charges, or offering explicit threats (or higher charges, longer sentence or harsher punishment). longer sentence or harsher punishment).

The The ““Reid TechniqueReid Technique””By Allen B. UryBy Allen B. Ury

(9 steps used by police interrogators to elicit a (9 steps used by police interrogators to elicit a confession)confession)

1.1. Direct ConfrontationDirect Confrontation

2.2. DeflectionDeflection

3.3. DominanceDominance

4.4. Turning objections Turning objections into justificationsinto justifications

5.5. Expressing EmpathyExpressing Empathy

6.6. Offering alternative Offering alternative ““themesthemes”” or or scenariosscenarios

7. Posing the 7. Posing the ““Alternative Alternative QuestionQuestion””

8. Repetition8. Repetition

9. Documentation9. Documentation

Four Errors in InterrogationFour Errors in Interrogation

The misclassification errorThe misclassification error The coercion errorThe coercion error The contamination errorThe contamination error The individual vulnerability errorThe individual vulnerability error

The Misclassification ErrorThe Misclassification Error

erroneous decision that an erroneous decision that an innocent person is guiltyinnocent person is guilty

if police did not erroneously if police did not erroneously interrogate innocent people, they interrogate innocent people, they would never elicit false would never elicit false confessions confessions

The Coercion ErrorThe Coercion Error

accusatorial interrogation, which is, by definition, a guilt-accusatorial interrogation, which is, by definition, a guilt-presumptive process presumptive process

psychological coercion means either police use of psychological coercion means either police use of interrogation techniques that are regarded as inherently interrogation techniques that are regarded as inherently coercive in psychology and law: or police use of coercive in psychology and law: or police use of interrogation techniques that, cumulatively, cause a suspect interrogation techniques that, cumulatively, cause a suspect to perceive that he has no choice but to comply with the to perceive that he has no choice but to comply with the interrogatorsinterrogators’’ demands demands

Psychologically coercive interrogation techniques include Psychologically coercive interrogation techniques include the old the old ““third degreethird degree””, such as deprivations of food, sleep, , such as deprivations of food, sleep, water or access to bathroom facilities, incommunicado water or access to bathroom facilities, incommunicado interrogation, and inducing extreme exhaustion and interrogation, and inducing extreme exhaustion and fatigue.rare today)fatigue.rare today)

todaytoday’’s police interrogators psychologically coercive s police interrogators psychologically coercive techniques: implicit or explicit promises of leniency (in techniques: implicit or explicit promises of leniency (in exchange for compliance and confession) or implicit or exchange for compliance and confession) or implicit or explicit threats of harsher treatment (in the absence of explicit threats of harsher treatment (in the absence of compliance and confession). compliance and confession).

The Contamination The Contamination Error Error

A confession is more than an A confession is more than an ““I did itI did it”” statement (i.e., statement (i.e., first admission)first admission)

It also consists of a narrative that contextualizes and It also consists of a narrative that contextualizes and attempts to explain the attempts to explain the ““I did itI did it”” statement. statement.

the post-admission interrogation process and resulting the post-admission interrogation process and resulting narrative of guilt that transforms the fledgling narrative of guilt that transforms the fledgling ““I did itI did it”” statement into a fully formed confessionstatement into a fully formed confession

Post-admission interrogation is often leading, Post-admission interrogation is often leading, suggestive and manipulative and contains the suggestive and manipulative and contains the following elements: a plausible plot-line, motives and following elements: a plausible plot-line, motives and explanations for why and how the crime occurred, explanations for why and how the crime occurred, expressions of remorse and regret, expressions of remorse and regret, acknowledgements of voluntariness and, perhaps acknowledgements of voluntariness and, perhaps most importantly, inclusion of non-public crime facts most importantly, inclusion of non-public crime facts that are said to originate with the confessor, not the that are said to originate with the confessor, not the interrogator.interrogator.

The individual The individual vulnerability errorvulnerability error

Cultural (trust/distrust police, Cultural (trust/distrust police, collectivistic vs. individualistic society)collectivistic vs. individualistic society)

History of trauma/abuseHistory of trauma/abuse Phenomenology of innocence (belief Phenomenology of innocence (belief

that justice will prevail in the end)that justice will prevail in the end) Special populations (MI/DD/Juvenile)Special populations (MI/DD/Juvenile) Substance IntoxicationSubstance Intoxication

Types of false Types of false confessionsconfessions Voluntary false confessions: offered Voluntary false confessions: offered

willingly to police or mediawillingly to police or media Coerced-compliant confessions: Coerced-compliant confessions:

suspect confesses, knowing he/she is suspect confesses, knowing he/she is innocentinnocent

Coerced-internalized confessions: Coerced-internalized confessions: suspect actually comes to believe suspect actually comes to believe that he/she is guilty (e.g. Paul Ingram that he/she is guilty (e.g. Paul Ingram case)case)

The VoluntaryThe Voluntary False False ConfessionConfession

When person admits to crime they did not When person admits to crime they did not commit with no prompting from law commit with no prompting from law enforcement. enforcement.

Occurs in high profile cases such as the Black Occurs in high profile cases such as the Black Dahlia case in which approximately 50 Dahlia case in which approximately 50 voluntary false confessions had been given. voluntary false confessions had been given.

Several reasons an individual would do this, Several reasons an individual would do this, pathological need for attention, mental pathological need for attention, mental illness/symptoms such as delusions, personality illness/symptoms such as delusions, personality disorders, a perception of some tangible gain, disorders, a perception of some tangible gain, and attempt to protect another.and attempt to protect another.

An unconscious need to expiate guilt via self-An unconscious need to expiate guilt via self-punishment.punishment.

““I am guilty of somethingI am guilty of something””

The The compliant compliant false false confessionconfession

Wish to escape the stresses, pressures, confinement and Wish to escape the stresses, pressures, confinement and psychological coercion of interrogation.psychological coercion of interrogation.

Are worn down, can no longer withstand the highly Are worn down, can no longer withstand the highly distressing and overwhelming interrogation processdistressing and overwhelming interrogation process

Wish to avoid an inferred or threatened harmWish to avoid an inferred or threatened harm Want to take advantage of a suggested or inferred promise Want to take advantage of a suggested or inferred promise

or benefit. or benefit. Individuals who give Individuals who give compliant compliant false confessions are false confessions are

essentially distressed or coerced by an authority figure to essentially distressed or coerced by an authority figure to the point where they are willing to falsely incriminate the point where they are willing to falsely incriminate themselves in order to put and end to and thus escape the themselves in order to put and end to and thus escape the unpleasantness of the interrogation. Once they have unpleasantness of the interrogation. Once they have decided to give in to the interrogatorsdecided to give in to the interrogators’’ demands, demands, compliant compliant false confessors typically repeat back the details of the false confessors typically repeat back the details of the crime that were suggested to them by their interrogators, crime that were suggested to them by their interrogators, infer the correct answers or simply guess. infer the correct answers or simply guess.

The The persuadedpersuaded or or internalized internalized false false

confessionconfession The suspect comes to doubt the reliability of his memoryThe suspect comes to doubt the reliability of his memory He is persuaded that there may be an amnesia-based He is persuaded that there may be an amnesia-based

explanation (e.g., drug or alcoholic induced blackout, post-explanation (e.g., drug or alcoholic induced blackout, post-traumatic disorder, multiple personality, repressed memory, traumatic disorder, multiple personality, repressed memory, etc) to account for how the suspect could have committed etc) to account for how the suspect could have committed the crime without rememberingthe crime without remembering

He makes a confession -- despite the absence of any He makes a confession -- despite the absence of any memory of committing the crime – in an uncertain belief memory of committing the crime – in an uncertain belief state with tentative language.state with tentative language.

The The persuaded persuaded false confessor is in an uncertain belief state, false confessor is in an uncertain belief state, temporarily persuaded that it is more likely than not that he temporarily persuaded that it is more likely than not that he committed the crimecommitted the crime

Once removed from the interrogation environment, the Once removed from the interrogation environment, the typical typical persuaded persuaded false confessor realizes that he should false confessor realizes that he should have trusted his memory not the detectiveshave trusted his memory not the detectives’’ assertions of assertions of irrefutable (false) evidence against him or amnesia-based irrefutable (false) evidence against him or amnesia-based explanations for his alleged lack of memory. explanations for his alleged lack of memory.

Risk Factors for False Risk Factors for False Confessions Confessions

The idea of The idea of ““risk factorsrisk factors”” of course is a of course is a probabilistic concept: just because these probabilistic concept: just because these factors are present in any given case factors are present in any given case does not mean that there will does not mean that there will necessarily be a false confession, only necessarily be a false confession, only that it is more likely than if not. that it is more likely than if not.

There are essentially two types of risk There are essentially two types of risk factors for false confessions: factors for false confessions: interrogation techniques and individual interrogation techniques and individual vulnerabilities vulnerabilities

Shift and YieldShift and Yield

YieldYield refers to susceptibility to refers to susceptibility to suggestive questioningsuggestive questioning

Shift Shift refers to changing answers refers to changing answers as a result of interrogative as a result of interrogative pressure. pressure.

Risk Factors for False Confessions: Risk Factors for False Confessions: interrogation techniquesinterrogation techniques

Isolation, confrontation and Isolation, confrontation and presentation of false evidence presentation of false evidence causes hopelessnesscauses hopelessness

Implicit or explicit promises and Implicit or explicit promises and threats coerce the suspect to threats coerce the suspect to believe that he has no meaningful believe that he has no meaningful choice but to comply with the choice but to comply with the interrogatorsinterrogators’’ demands and confess demands and confess falsely. falsely.

Risk Factors for False Confessions: Risk Factors for False Confessions: interrogation techniquesinterrogation techniques

In In persuaded persuaded false confessions, additional risk false confessions, additional risk factor of attacking the suspectfactor of attacking the suspect’’s confidence in s confidence in the reliability of his memorythe reliability of his memory

Length of Interrogation: Average interrogation Length of Interrogation: Average interrogation lasts up to 2 hours, in false confession cases lasts up to 2 hours, in false confession cases usually longer than 6 hours. Physical and usually longer than 6 hours. Physical and mental fatigue impair judgment and ability to mental fatigue impair judgment and ability to resist pressure, deficits in thought process resist pressure, deficits in thought process speed, concentration, motivation, confidence, speed, concentration, motivation, confidence, attentions, and oneattentions, and one’’s ability to ignore s ability to ignore misleading or irrelevant information. Long misleading or irrelevant information. Long interrogations increase stress levels which interrogations increase stress levels which impairs thinking and judgment – can cause impairs thinking and judgment – can cause tunnel vision (only way out to confess)tunnel vision (only way out to confess)

Risk Factors for False Risk Factors for False Confessions: individual Confessions: individual

vulnerabilitiesvulnerabilities

Cultural IssuesCultural Issues Personality traits of suggestibility and Personality traits of suggestibility and

compliancecompliance Three groups or types of individuals Three groups or types of individuals

who are most vulnerable who are most vulnerable – the mentally handicapped or the mentally handicapped or

developmentally disabled developmentally disabled – juveniles (especially under the age of 16)juveniles (especially under the age of 16)– the mentally illthe mentally ill

The mentally The mentally handicapped or handicapped or developmentally developmentally

disableddisabled Low intelligenceLow intelligence Poor understanding or fund of Poor understanding or fund of

knowledgeknowledge Short attention span, memory deficits, Short attention span, memory deficits,

reduced conceptual skillsreduced conceptual skills Easily confused, suggestible, Easily confused, suggestible,

acquiescence (compliance)acquiescence (compliance) Not likely to fully understand gravity of Not likely to fully understand gravity of

situation and long-term consequences situation and long-term consequences of giving confessionof giving confession

The mentally The mentally handicapped or handicapped or developmentally developmentally

disableddisabled Not likely to understand the police are Not likely to understand the police are

not their not their ““friendfriend”” Poor conceptual and communication Poor conceptual and communication

skills, skills, Eager to please and tell the Eager to please and tell the

interrogator what they want to hearinterrogator what they want to hear Low IQ more likely to believe that false Low IQ more likely to believe that false

confession will impact little on confession will impact little on outcome (naivete re. the truth)outcome (naivete re. the truth)

The mentally The mentally handicapped or handicapped or developmentally developmentally disableddisabled Mental Retardation:Mental Retardation:

– Profound: IQ less than 25Profound: IQ less than 25– Severe: IQ 25 to 35Severe: IQ 25 to 35– Moderate: IQ 35 to 55Moderate: IQ 35 to 55– Mild: IQ 55 to 70Mild: IQ 55 to 70

JuvenilesJuveniles

Intellectually immature (Until early 20Intellectually immature (Until early 20’’s)s) Naïve/trusting of authorityNaïve/trusting of authority Poor understanding of MirandaPoor understanding of Miranda Inability to fully understand long-term Inability to fully understand long-term

consequencesconsequences Eager to please authorityEager to please authority Lower tolerance for stress/pressure Lower tolerance for stress/pressure Drizin and Leo, 2004 , sample 125 Drizin and Leo, 2004 , sample 125

proven false confessions, 63% were proven false confessions, 63% were made by individuals under 25 years of made by individuals under 25 years of ageage

JuvenilesJuveniles

Less than 12: more suggestible and Less than 12: more suggestible and easily influenced by negative easily influenced by negative feedbackfeedback

From 12 to 16: similar to adults on From 12 to 16: similar to adults on memory and yield, higher on shiftmemory and yield, higher on shift

After 16: no difference than adults After 16: no difference than adults on measures of yield and shift+on measures of yield and shift+

The mentally illThe mentally ill

psychiatric symptomspsychiatric symptoms– poor reality testing, anxiety, poor reality testing, anxiety,

distorted perceptions/beliefs, distorted perceptions/beliefs, thought disorder, delusions.thought disorder, delusions.

– low tolerance for stress/pressure.low tolerance for stress/pressure.– poor impulse control.poor impulse control.– mood disturbance.mood disturbance.– low self-esteem / suicidality low self-esteem / suicidality

Substance IntoxicationSubstance Intoxication

Alcohol intoxicationAlcohol intoxication– Alters mood, lowers anxiety, Alters mood, lowers anxiety,

increases suggestibility, impairs increases suggestibility, impairs memory (encoding and retrieval)memory (encoding and retrieval)

Alcohol withdrawalAlcohol withdrawal– Increases suggestibilityIncreases suggestibility

Drug Intoxication / Drug Drug Intoxication / Drug withdrawalwithdrawal

Psychological FactorsPsychological Factors

Suggestibility correlates with lack Suggestibility correlates with lack of intelligence and poor memoryof intelligence and poor memory

Low IQ means more susceptible Low IQ means more susceptible to leading questions, more to leading questions, more confabulation and more confabulation and more acquiescenceacquiescence

Poor assertiveness, anxiety and Poor assertiveness, anxiety and avoidant coping strategies avoidant coping strategies correlated with suggestibilitycorrelated with suggestibility

Psychological FactorsPsychological Factors

The more anxious, the more likely to The more anxious, the more likely to change recollection and be suggestiblechange recollection and be suggestible

Suggestibility correlated sleep Suggestibility correlated sleep deprivationdeprivation

No relationship between suggestibility No relationship between suggestibility and hallucinations, poor reality testing and hallucinations, poor reality testing or depressionor depression

The more suggestible, the less The more suggestible, the less accurate in recalling detailsaccurate in recalling details

Proof of a false confessionProof of a false confession

Discovery that no crime has been committed (e.g. Discovery that no crime has been committed (e.g. victim still alive).victim still alive).

New forensic evidence, including improved DNA New forensic evidence, including improved DNA testing capabilities.testing capabilities.

New alibi evidence.New alibi evidence. Newly discovered medical evidence which would have Newly discovered medical evidence which would have

made it impossible for the person to have committed made it impossible for the person to have committed the crime.the crime.

Somebody else confesses and is convicted of the Somebody else confesses and is convicted of the offence.offence.

Psychological and psychiatric evidence that casts Psychological and psychiatric evidence that casts serious doubts on the veracity of the confession.serious doubts on the veracity of the confession.

A careful analysis of the post admission narrative, A careful analysis of the post admission narrative, which reveals striking errors and omissions, rendering which reveals striking errors and omissions, rendering the confession unconvincing and inherently the confession unconvincing and inherently improbable.improbable.

Post-Admission NarrativePost-Admission NarrativePANPAN

Look for striking errors and omissions, Look for striking errors and omissions, rendering the confession unconvincing rendering the confession unconvincing and inherently improbable.and inherently improbable.

Leads to discovery of yet unknown Leads to discovery of yet unknown evidenceevidence

Includes identification of highly Includes identification of highly unusual elements of the crimeunusual elements of the crime

Includes accurate description of Includes accurate description of mundane detailsmundane details

False False False False ConfessionsConfessions

Incentive for any defendant to retract Incentive for any defendant to retract a confession after arrest (shame, avoid a confession after arrest (shame, avoid prosecution, rejection of family or fear prosecution, rejection of family or fear of retaliation)of retaliation)

Legal strategyLegal strategy The authority of one's own attorney, The authority of one's own attorney,

especially because of the trusted especially because of the trusted relationship, can provoke a retraction relationship, can provoke a retraction of a perfectly legitimate confessionof a perfectly legitimate confession

MalingeringMalingering

Role of Psychiatric Role of Psychiatric ExpertExpert

To assess nature/extent of cultural To assess nature/extent of cultural and/or individual vulnerabilities, and/or individual vulnerabilities, clinical exam, psychological testsclinical exam, psychological tests

To assess for malingered vs. To assess for malingered vs. genuine mental illness/impairmentgenuine mental illness/impairment

To gauge extent of suggestibility To gauge extent of suggestibility and complianceand compliance

Role of Psychiatric Role of Psychiatric ExpertExpert

Gudjonsson Suggestibility Scale Gudjonsson Suggestibility Scale (GSS)(GSS)– Instrument to assess possibility of Instrument to assess possibility of

FCFC– Meets or exceeds Frye and Daubert Meets or exceeds Frye and Daubert

standardsstandards– Considered consistent, valid, Considered consistent, valid,

reliable, with good confidencereliable, with good confidence

Possible ReformsPossible Reforms

Prohibit inherently coercive Interrogation techniquesProhibit inherently coercive Interrogation techniques Videotape police interrogations in serious felony cases, Videotape police interrogations in serious felony cases,

available to all parties.available to all parties. Minor, mentally ill or developmentally disabled to be Minor, mentally ill or developmentally disabled to be

accompanied by neutral third-party adult, when possible.accompanied by neutral third-party adult, when possible. Eliminate suggestive eyewitness identification procedures.Eliminate suggestive eyewitness identification procedures.

– Show photos one at a time, not in multi-photo spreads.Show photos one at a time, not in multi-photo spreads.– Officer not involved in investigation should conduct the Officer not involved in investigation should conduct the

identification review.identification review.

Possible ReformsPossible Reforms

Limit length of interrogationsLimit length of interrogations Just as in the insanity defense, both sides should have Just as in the insanity defense, both sides should have

the opportunity to examine the suspectthe opportunity to examine the suspect’’s mental state s mental state and diagnosis at the time of his decision to confess – and diagnosis at the time of his decision to confess – and to retract – and to probe psychosocial background and to retract – and to probe psychosocial background and risk factors that make the suspect more and risk factors that make the suspect more vulnerable and less vulnerable.vulnerable and less vulnerable.

Expert testimony on interrogation and confessionExpert testimony on interrogation and confession Jury InstructionsJury Instructions

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Alexander Sasha Bardey, Alexander Sasha Bardey, M.D.M.D.

DrSashaBardey@aol.com

212-223-1983212-223-1983