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PSYCHIATRY: Challenging the Reliability of Confessions with Expert Testimony

Over 200 individuals confessed to the kidnapping and murder of the Lindbergh baby in 1932. They were all rejected as suspects. The man charged with the crime refused to confess—even when offered commutation on the eve of his electrocution in 1936.

by Dr. K.J.W., M.D.


Over 200 individuals confessed to the kidnapping and murder of the Lindbergh baby in 1932. They were all rejected as suspects. The man charged with the crime refused to confess—even when offered commutation on the eve of his electrocution in 1936. There was physical evidence linking him to the crime. But what about another group, those who confess and then claim either that they did not understand their Miranda rights or that they made a false statement? Because the statement may be the key to the prosecution’s case, its suppression can be critical. While evidence of coercion or procedural issues may not require expert testimony, the analysis of mental capacity and relevant psychological states during an interrogation involve specialized knowledge. Below are scenarios in which psychiatric or psychological testimony may be employed to suppress a statement or cast doubt on its reliability.

Miranda and Mental Capacity: Individuals with intellectual deficits, learning disabilities, and autism-spectrum disorders (for example, Asperger’s disorder) may lack the street-sense to avail themselves of Miranda protections. It is not uncommon for defendants to tell me that the right to remain silent meant, “I have to talk to the police.” Citizens with disabilities often want to blend in and mask their deficits. Someone with illiteracy and borderline intellectual functioning may pretend to understand Miranda rights and then go along with whatever the police wish. Persons with mental retardation frequently confess to serious crimes because they were told they could get food, drink or a cigarette. Shouldn’t police know better than to take a confession from an impaired person? You bet! But sometimes a suspect lacking mental capacity to waive rights will “fly under the radar.” When you suspect a defendant’s rights were violated due to lack of mental capacity to understand and waive Miranda rights, psychological testing, a review of school records, and a psychiatric examination may be an essential aspect of the evidentiary challenge.

“The voices told me to confess” Though it is a violation of rights for police to coerce a confession by overwhelming the will of a suspect, it is not always a simple analysis. In 1986 the U.S. Supreme Court in Colorado v. Connelly held that a person cannot be compelled by his own hallucinations to confess under the meaning of the Due Process Clause: “Coercive police activity is a necessary predicate to finding that a confession is not ‘voluntary’ within the meaning of the Due Process Clause. Here, the taking of respondent’s statements and their admission into evidence constituted no violation of that Clause. While a defendant’s mental condition may be a ‘significant’ factor in the ‘voluntariness’ calculus, this does not justify a conclusion that his mental condition, by itself and apart from its relation to official coercion, should ever dispose of the inquiry into constitutional ‘voluntariness.’” Therefore, depending on jurisdiction, expert testimony could be used to assess the defendant’s state of mind at the time of the statement—though it would not be dispositive of the voluntariness question.

What Social Science Tells Us: There is a large and growing literature on suggestibility, coercion and the effects of standard interrogation techniques (for example, the Reid technique) on individuals. Because we already know that many people make false confessions, it should come as no surprise to judges and juries that some of them, under stress, act against liberty interests. There is a role for expert testimony as to what the experimental psychology literature tells us about persons under stress. But this, by itself, often falls short of “connecting the dots” between humans’ characteristics generally and the mental state of a specific suspect at a particular time and place. This dichotomy has been referred to as the social science versus medical models. Case law tells us that judges are less likely to accept expert testimony on the reliability of a confession unless it is backed up by medical model (including psychiatric and/or psychological) evidence—not simply a statement about the observation that some people do odd things under stress.

Altered States: Police are expected to delay interrogation of suspects who are manifestly ill, intoxicated or in extremis. Many times statements are elicited from suspects who have just been shot, operated on, suffered head trauma during arrest, or under the influence of alcohol or drugs. Such persons may not have had the full benefit of their mental faculties to weigh the consequences of a waiver of rights: waivers must be knowing, intelligent and voluntary. Other suspects may be addicted to drugs or alcohol and undergoing an acute withdrawal state. When police know this, they may dangle the prospect of getting them help, indicating that a confession will hasten relief. Whether this constitutes objective coercion may not be a subject for expert testimony. However, an expert medical witness could shed light on why a heroin addict would be highly motivated to end an interrogation session by giving a knowingly false statement. They often tell me that they would have said anything to end the session, on the notion that medical intervention would be forthcoming.

But is it admissible? The jurisprudence of the reliability of a confession raises important questions about state of mind and the interaction of police and suspects. Practicing criminal defense attorneys know that judges are reluctant to suppress confessions, absent egregious police misconduct. Rather, they leave it to the jury to assess the “totality of circumstances” of the interrogation. Creating reasonable doubt about the reliability of a confession may require both the defendant and an expert witness to testify. Because it is often not in the best interest of the defendant to take the stand, it falls on the expert witness to paint a vivid picture of an impaired suspect in the hands of skilled detectives. Prosecutors often challenge the admissibility of expert testimony, saying it lacks scientific acceptance or that it is prejudicial (suggesting that the defendant is innocent). In my experience, if the witness adheres closely to scientific observations about the defendant, and backs it up with social science literature, the testimony is likely to be admitted—more so in the case of a pre-trial hearing. Prior to engaging a mental health expert it would be important to examine relevant case law on admissibility issues.