May 23, 2008
False Confession Testimony
I participated on an interesting panel on the admissibility of psychological testimony concerning false confessions at the New York City Bar last night. Conventional wisdom, of course, is that no one would ever confess to a crime that they did not commit absent overwhelming coercion -- e.g., torture, physical threats, etc. However, recent wrongful convictions have shown that police interrogation tactics in certain circumstances may be sufficient to cause an innocent suspect to confess. The question then becomes: can the defendant introduce a psychological expert at trial to describe the phenomenon about wrongful convictions, the various risk factors, and perhaps even whether the confession obtained in this case was likely to be false?
It seemed to me that in reading the case law, there are a number of issues to consider in this area, some more basic that others.
i) Whether the theories about false confessions are sufficiently developed to pass Daubert/Frye
ii) Whether false confession testimony can be analogized to other psychological testimony that has been admitted about counterintuitive phenomenon (e.g., eyewitness reliability, rape trauma syndrome, and the suggestibility of children in sex abuse cases)
iii) The link between false confession testimony and the right to present a defense as developed in Chambers v. Mississippi and more recently Holmes v. South Carolina, in particular, whether false confession testimony must be admissible in cases without corroborating evidence
iv) The specificity of the expert testimony -- is the expert merely providing social context testimony as described by Monahan & Walker, or is the expert reaching a conclusion about the confession
v) Whether it makes a difference that the expert is a clinical psychiatrist testifying about a specific medical issue or mental deficiency present in this defendant, or a psychologist testifying about the phenomenon of false confessions more generally
vi) Whether the expert is testifying to the jury, where all the usual Daubert/Frye strictures apply, or whether the expert is presenting to the judge at a suppression hearing, where in many cases, they do not. (See Federal Rule 104(a)).