Trowbridge Foundation: Current Article in Full

Confession Law in Washington, and the Psychologist's Role in Assessing the Validity of Confessions

By Brett C. Trowbridge, Ph.D., J.D.

This article supported by The Trowbridge Foundation

Presented at the American College of Forensic Examiners, October 25, 2000

Like many other areas of the law, the law of confessions is controversial because it is fraught with competing values. Prosecutors wish to introduce into evidence reliable confessions, but even reliable confessions will not be admissible if they were unfairly obtained through methods designed to break the suspect's "will". Some police tactics, such as preventing access to counsel after an attorney has been requested, will be considered to have been unfair regardless of whether there is proof they had impact upon the suspect. On the other hand, instead of looking at the conduct of the police, courts will also focus at times on the suspect's capacity to have resisted interrogations, or to have understood and to have validly waived his rights. It is in these areas of confession law that psychological evidence is most commonly presented.

Historical Background

Prior to the famous Miranda decision (Miranda v. Arizona, 384 U.S. 436 (1966)) most decisions concerning the admissibility of confessions had to do with the "voluntariness" of confessions under the 14th Amendment Due Process Clause. These discussions almost always involved two issues. The first was whether the confessions were obtained through coercion, i.e., government practices likely to exert impermissible pressure upon the individual. The second issue was whether the suspect had any disability that caused him to lack the wherewithal to resist coercion. The courts applied a "totality of the circumstances" test that considered the nature of any coercion (e. g. beating the suspect until he confessed was prohibited in Brown v. Mississippi, 297 U.S. 278 (1936)), but also considered factors having to do with the ability of the suspect to resist questioning, such as whether the suspect was sick (Jackson v. Denno, 378 U.S. 368 (1964)), drugged (Townsend v. Sain, 372 U.S. 293 (1963)), lacking in education and mental capacity (Culombe v. Connecticut, 367 U.S. 568 (1961)), emotionally disturbed (Spano v. New York, 360 U.S. 315 (1959)), "feebleminded" (Fikes v. Alabama, 352 U.S. 191 (1957)), or legally unsophisticated (Crooker v. California, 357 U.S. 433 (1958)). In these cases it was not necessary to show that the government knew of the incapacitating condition at the time of the confession. Psychologists and other mental health professionals often supplied testimony as to those issues.

The "totality of the circumstances" test is still valid in Washington today to determine whether a confession was voluntary. State v. Rupe, 101 Wa.2d. 664 (1984) gives factors a court may consider to determine voluntariness, including the defendant's physical condition, age, experience, mental disabilities, and the conduct of the police.

Miranda established the rule that when there is interrogation of an in-custody suspect which results in incriminating statements, such statements shall only be admissible at trial if the suspect waived his rights to remain silent and to have the assistance of counsel, and then voluntarily confessed. In Miranda the Court was aware of the "compelling atmosphere" of custodial interrogations despite the lack of any "bad conduct" by the interrogators. The rule of Miranda is that the suspect may waive the right to remain silent and to have the assistance of counsel "provided the waiver is made voluntarily, knowingly, and intelligently" (Miranda v. Arizona, 384 U.S. 436 (1966). at 444; State v. Cushing, 68 Wn.App. 388 (1993); State v. Kaiser, 34 Wa.App. 559 (1983)). When such a waiver occurs, then the following confession will be admissible if it is the product of a free and rational choice. Thus, waiver of rights and voluntariness are two separate considerations in Washington as well as in other jurisdictions. (State v. Blanchey, 75 Wa.2d (1969)). Miranda did not do away with the voluntariness test -- it instead added a new requirement on the government that it inform the suspect of his constitutional rights and obtain a "voluntary, knowing and intelligent waiver", (see Edwards v. Arizona, 451 U.S. 477 (1981), which stated that voluntariness and a knowing and intelligent waiver are "discrete inquiries".) The Due Process test as to the voluntariness of the confession remains, and it is "[Whether] the behavior of the State's law enforcement officials was 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." (State v. Braun, 82 Wa.2d. 157 (1973, quoting Rogers v. Richmond, 365 U.S. 534 (1961)). "Whether a confession is free and voluntary is not determined by whether the officer's conduct is shocking, or the confession is cruelly extorted, but whether it was extracted by any sort of threats, violence, or direct or implied promises, however slight. A confession that is the product of coercion, physical or psychological, is involuntary and not admissible." State v. Cushing, 68 Wa.App. 388 (1993), citing State v. Riley, 117 Wa. App. 732 (1977).

Today psychologists are frequently called upon to evaluate defendants who claim they did not make a "knowing and intelligent" waiver of their Miranda rights, and/or who claim their confession was involuntary. Less frequently they are asked to testify about the reliability of confessions.

Miranda Test

A very recent U.S. Supreme Court case upheld the Miranda test as a “constitutional decision” which could not be overruled by an Act of Congress. Dickerson v. U.S., (99-5525, June 26, 2000). Miranda is based on the Fifth Amendment of the U.S. Constitution’s right against self-incrimination, which provides "nor shall (any person) be compelled in any criminal case to be a witness against himself". Article 1, Section 9 of the Washington State Constitution has a similar provision: "no person shall be compelled in any criminal case to give evidence against himself". In State v. Russell, 125 Wa.2d 24 (1994) the Washington Supreme Court decided that these two provisions are essentially the same ("witness" means the same as "giving evidence"), and that the Washington State Constitution does not provide any additional rights against self-incrimination beyond those provided in the U.S. Constitution. The Russell court decided that neither the Washington Constitution nor the U.S. Constitution require suppression of physical evidence which is the fruit of, or is derived from, an un-Mirandized confession, unless that confession was actually coerced and thus involuntary. State v. Wethered, 110 Wa.2d 466 (473-75)(1988).

Miranda is an absolute restriction that makes a confession inadmissible unless the suspect has been informed of his rights and has waived them. Miranda prohibits any collateral inquiry relative to a suspect's awareness of the rights as a substitute for the warnings. The only exception seems to be that when the suspect takes it upon himself to interrupt the officer who is attempting to fulfill his duty to inform, then the suspect is "charged with that knowledge; he is estopped to claim Miranda's protection". (State v. Thomas, 16 Wa.App. 1 (1976)). A technical deficiency in the written waiver form will not vitiate and render worthless the prior oral warnings if the oral warnings were "couched in direct and unequivocal language." State v. Lanning, 5 Wa.App. 428 (1971). Although the voluntariness test applies to all out of court statements, it is well accepted that Miranda applies only to custodial interrogation by the police, and thus does not apply to Terry stops (brief investigative stops under Terry v. Ohio, 392 U.S. 1 (1968) during which the focus of investigation has not yet centered upon the person being detained); similarly, if the statement made by the suspect was made spontaneously and not in response to any questioning, Miranda does not apply (State v. Ortiz, 104 Wa.2d 479 (1984)), and Miranda usually does not apply to interrogations in the suspect's home. Beckwith v. 425 U.S. 341 (1976). Miranda does not require the police to make repeated recitations of a defendant's constitutional rights before the taking of each subsequent statement. State v. Blanchey, 75 Wa.2d. 926 (1969).

Once an individual who is taken into custody by a police officer indicates in any manner, either before or during questioning, that he or she wishes to remain silent, all questioning must cease. State v. Wheeler, 43 Wa.App. 191 (1986), citing Miranda v. Arizona, 384 U.S. 436 (1966). Once the suspect has asserted his desire to remain silent, a subsequent statement will be admissible only if the original right to cut off questioning was scrupulously honored, the police did not engage in further words or actions amounting to interrogation before obtaining the waiver, and the police did not engage in tactics that tended to coerce the suspect to change his mind. State v. Wheeler, 34 Wa.App. 559 (1983). If the suspect does ask for an attorney further questioning that occurs without the presence of counsel will likely be deemed inadmissible, especially if the suspect has been formally charged. State v. Sargeant, 27 Wa.App. 947 (1980); Escobedo v. Illinois 378 U.S. 478 (1964); Massiah v. U.S., 377 U.S. 201 (1964).

Miranda placed a "heavy" burden of proof on the government to show that the warnings were given, and that a knowing and intelligent waiver was freely obtained, and this "heavy" burden was also set down in Washington in State v. Davis, 73 Wa.2d 271 (1968), although the State's burden was later downgraded to a "preponderance of the evidence" standard in State v. Coles, 28 Wa.App. 563 (1981), cited in State v. Woods, 34 Wa.App. 750 (1983). If the suspect chooses to exercise his right to remain silent, Due Process prohibits later impeachment of the suspect based on his silence following the Miranda warnings. (Doyle v. Ohio, 426 U.S. 610 (1976)). However, statements deemed to be inadmissible under Miranda in the prosecutor’s case in chief may be used to attack the defendant’s credibility should he take the stand and testify inconsistently with those prior statements made by him. Harris v. New York, 401 U.S. 222 (1971); State v. Simpson, 95 Wa.2d 170 (1980). However, if the statements were deemed to be inadmissible because they were “involuntary” they cannot be used for impeachment purposes even if the defendant takes the stand and testifies inconsistently with them, another important distinction between the Miranda test and the voluntariness test. State v. Tim S., 41 Wa.App 60 (1985); see also State v. Greve, 67 Wa.App. 166 (1992).

The signing of a Miranda waiver form "is not inevitably either necessary or sufficient to establish waiver" but it is "usually strong proof of the validity of that waiver." North Carolina v. Butler, 441 U.S. 369 (1979). A trial court's determination as to whether a purported waiver was made knowingly and intelligently, and whether it was made voluntarily, will not be disturbed upon appeal if there is substantial evidence in the record to support the court's finding. State v. Broadaway, 133 Wn.2d. 118 (1997). Upon request by the defense there must be a "suppression" hearing outside of the ears of the jury to determine the admissibility of confessions and out-of-court statements, because a defendant has a constitutional right to object to the introduction into evidence of extrajudicial statements, and to have a hearing outside the presence of the jury to determine whether the statements were made voluntarily and/or in violation of Miranda. The jury may not hear a confession unless and until the trial court has determined it was voluntarily given. Jackson v. Denno, 378 U.S. 368 (1964), State v. Rice, 24 Wn.App. 562 (1979). At the 3.5 hearing (suppression hearing) the court must see to it that the defendant is informed that (a) he or she may, but need not, testify at the hearing surrounding the circumstances of the statement, but that (b) if the defendant does testify at the hearing, he or she will be subject to cross examination with respect to the circumstances surrounding the statement (and with respect to his or her credibility), that (c) if the defendant does testify at the hearing, he or she does not by so testifying waive the right to remain silent during trial, and that (d) if the defendant does testify at the hearing, neither this fact or his or her testimony at the hearing shall be mentioned to the jury unless he or she testifies concerning the statement at trial. (See CrRLJ 3.5(b)). Voluntariness must not be determined solely on the state's evidence; the defendant must be given an opportunity to testify and present other evidence. State v. Alexander, 55 Wn.App. 102 (1989). Furthermore, an extrajudicial admission or confession may not be admitted against the defendant until after the state has established the corpus delicti of the crime. To meet this requirement, the prosecution must present independent evidence that supports a logical and reasonable conclusion that (a) a specific kind of injury or loss has occurred, and (b) some person's criminality was the source of the injury or loss. State v. Fagundes, 26 Wn.App. 477 (1980).

Pursuant to CrR 3.5 the trial court is required to enter written findings of fact and conclusions of law after a 3.5 hearing as to the admissibility of any confession; if it does not do so the appeals court must "examine the record and make an independent evaluation of voluntariness". State v. Davis, 34 Wa.App. 546 (1983), citing State v. Hoyt, 29 Wa.App. 372 (1981).

It is at such a 3.5 hearing that a psychologist's written report or in-person testimony may be considered on the issue of the defendant's mental condition at the time of the alleged statement; the issue is whether the defendant possessed sufficient "sensibility and cognition" at the time to be aware the Miranda rights existed, and whether the statements were made voluntarily. State v. McDonald, 89 Wa.2d 256 (1977). Under ER 702 such expert evidence will only be admitted if the judge feels the evidence "will assist the trier of fact", and if the judge rules the evidence will not assist him he does not have to hear it, and his decision not to allow such evidence will generally be upheld upon appeal. State v. Massey, 60 Wa.App. 131 (1990). At the hearing the "Court should consider the defendant's age, experience, education, background, intelligence, his capacity to understand the warnings and the nature of Fifth Amendment rights, and the consequences of waiving those rights." Fare v. Michael C. 442 U.S. 707 (1979), at 725. A mental subnormality does not automatically render a confession inadmissible, but it is a factor that should be considered. State v. Ortiz, 104 Wa.2d 479 (at 484) (1984). Similarly, mental illness alone does not automatically render the waiver invalid. State v. Ratow, 4 Wa.App. 321 (1971); State v. Anderson, 94 Wa.2d 176 (1980). Even the fact that the defendant was later found to lack the capacity to stand trial does not in and of itself mean that he waiver was invalid. State v. Sargeant, 27 Wa.App. 947 (1980).
The Court will hear testimony as to the entire situation surrounding the statement. Cases will often turn on whether the defendant has led a normal life, or whether his mental retardation or other mental disability was so extreme that his life-style had been adversely effected. For example, in People v. Lux, 34 App.Div. 2d 662, 310 N.Y.S.2d 416 (1970), the court held the fact that the defendant scored 77 on an IQ test and was within dull normal or borderline range of intelligence was not determinative of whether he was able to knowingly and intelligently waive his rights. The court thought it significant that the defendant had completed eighth grade, served with honor in the armed forces, was gainfully employed as a janitor and served as a volunteer fireman.

A similar case in Washington is State v. Lanning, 5 Wa.App. 428 (1971), which held that a defendant with a 65 IQ who had not completed the sixth grade had made a valid waiver because he drove, was married, was employed, and handled his own affairs. State v. Sargeant, 27 Wa.App. 947 (1980) is an example of a case in which the waiver was found invalid; in that case the defendant was later found to be incompetent to stand trial, he was experiencing adverse effects of his medications, he attempted to plea-bargain while waiving his rights without the assistance of an attorney, and the officer had asked very leading questions during the interrogation instead of allowing him to make a narrative statement about the incident. However, in State v. Davis, 34 Wa.App. 546 (1983) a waiver was found to have been valid even though the defendant set a fire while housed in the psychiatric section of the jail and made his confession to fire investigators while he was still there, and even though he was a chronic paranoid schizophrenic who was found by Western State Hospital and the trial court to have been unable to form the requisite "intent" for the crime of arson in the first degree; he was convicted of the lesser crime of first degree reckless burning.

In cases involving mental retardation that is obvious to the police, the police may attempt to simplify the Miranda warnings so that the suspect will be more likely to understand them. Generally, if they do so the subsequent waiver is more likely to be found to have been valid. In New York v. Williams, 62 N.Y.2d. 205 (1984) the defendant was a 20 year old illiterate borderline mentally retarded man who also suffered from organic brain damage from an auto accident, and who had been hospitalized for psychotic episodes. Having been advised he was "slow" the officer administering the warnings simplified them and attempted to explain them to him. At trial the defendant called expert witnesses who opined the defendant would have known he was confessing to a crime, but would not have understood abstract concepts pertaining to the Miranda rights. Ruling that "providing a general legal education is not the business of the police or the courts", the New York Supreme Court upheld the validity of the Miranda waiver, stating, "The detective here was careful to reduce the warnings to simple terms the defendant could understand."
Prosecutors may not employ a defendant's assertion of the right to silence after Miranda warnings as evidence of sanity at the time of the commission of the criminal acts. Wainright v. Greenfield, 474 U.S. 284 (1986).

Juvenile Issues

Miranda applies to juvenile cases just as it applies to adult cases. In re Gault, 387 U.S. 1 (1967) arguably requires that Miranda warnings be used with juveniles if their confessions are to be admitted as evidence. RCW 13.40.140(9) provides that a juvenile's waiver of the right to remain silent "must be an express waiver intelligently made by a juvenile after the juvenile has been fully informed of the right being waived." Cases involving juvenile suspects are often given stricter scrutiny, as it is thought that juveniles are less likely to be able to make a "knowing and intelligent" waiver than adults are. Age is obviously a relevant factor. Appellate cases involving youths twelve years of age or younger have usually (but not always) resulted in opinions that they lacked requisite understanding of the Miranda rights. In contrast, appellate cases involving youths 16 to 18 years of age have most often resulted in opinions that the youths could understand the warnings. Cases of youths 13, 14, and 15 years of age have been associated with more variable outcomes. Intelligence is obviously another relevant factor. While youths with very low IQ scores have at times been found to have made valid waivers, the majority of cases in which juveniles' capacities were considered deficient have been youths with very low IQ scores. See Grisso, T., Forensic Evaluation of Juveniles, Professional Resource Press, Odessa, Florida, 1998, pg. 49.

However, some extreme cases have been upheld, and the trial court's decision will usually be affirmed upon appeal. For example, in a murder case the confession of a thirteen year old boy was deemed admissible on appeal even though he had a mental age of 9.9, had a borderline IQ (77), and was slow in school. The trial court held that because he had asked the officer if he would get life in prison, because he said he killed the victim because he was afraid the victim could otherwise identify him, and because he was familiar with juvenile detention, his waiver of his Miranda rights had been "knowing and intelligent", and Division 2 of the Court of Appeals affirmed the trial court's decision. State v. Massey, 60 Wa.App. 131 (1990).

Whether or not the police allowed a parent or guardian to be present during the interrogation process is often an issue. Indeed, when a juvenile is under the age of twelve the "juvenile's parent, guardian, or custodian shall give any waiver". RCW 13.40.140(10). After the age of twelve the presence or absence of the parent or guardian is one factor to be considered, but is not completely determinative, as it is "only another circumstance" when deciding whether waiver was voluntary. Dutil v. State, 93 Wa.2d 84 (1980). For an example of factors used to decide the validity of waivers for juveniles see State v. Lawley, 32 Wa.App. 337 (1982), a case involving statements of four different youths accused of illegally entering the dwelling of another.

Psychological Tests Assessing Miranda Rights Waiver

Psychologist Thomas Grisso, Ph.D., has developed a scientifically reliable and valid set of psychological tests to measure a defendant's ability to waive his Miranda rights. Grisso, T., Instruments for Assessing Understanding and Appreciation of Miranda Rights, Professional Resource Press, Sarasota, Florida, 1998. The Comprehension of Miranda Vocabulary (CMV) test, an attempt to assess whether the subject understood the words used in the Miranda warnings, assesses the examinee's ability to define six words that appear in the Miranda warnings. One criticism of this test is that since each police jurisdiction uses a different wording of the rights, some of the vocabulary words tested may not pertain to the version of rights given; obviously the psychologist should go beyond the test in that case, and question the examinee about the version of rights actually given. The Comprehension of Miranda Rights test (CMR) and the Comprehension of Miranda Rights -- Recognition test (CMR-R) attempt to assess the “knowingly” element in Miranda, and the Function of Rights in Interrogation (FRI) test attempts to address the "intelligently" element in Miranda. The CMR involves presentation of each of the four Miranda warnings, one by one, to the examinee, who is asked to tell the evaluator "what that means in your own words". The CMR-R assesses the examinee's understanding of whether various interpretations of the rights provided by the evaluator are the same as or different from the warning that was presented; the examinee is required to answer either "same" or "different" in each case. The FRI goes beyond the understanding of the Miranda rights themselves to assess the examinee's grasp of the significance of the warnings in three areas: jeopardy associated with interrogation, the function of counsel, and protections related to the right to silence. For each test a formal scoring system is provided, and item scores and total scores for each test may be compared to norms for delinquent youths and adult offenders of various ages and levels of intelligence. Grisso used a national panel of experts to determine cutting scores for dividing subjects into categories of “full”, “partial”, or “no” understanding of the Miranda rights.

Grisso acknowledges that a problem with these tests is that the defendant may have learned much about his Miranda rights during the time period between when he gave his statement and the time when he is evaluated by the psychologist, so he may know more at the time of the evaluation than he knew at the earlier time when he confessed to the police. There is no particular score on these tests which is thought to be associated with "adequate" understanding from a legal perspective, since that is a legal judgment, and just how much understanding an individual has to have before his waiver is “knowing and intelligent” is a question for each judge faced with making the decision.

The Psychologist's Role in Assessing Validity of Waiver

Psychologists evaluating the validity of Miranda rights waivers usually obtain police reports, which will include the police officer's description of the circumstances of the Miranda waiver and the subsequent confession. It is imperative that the psychologist question the defendant as to his understanding of the wording of the rights as they were given. Some psychologists use Grisso's Miranda rights tests to do this, while some use more informal methods. If the defendant reportedly read the rights himself, the psychologist should assess his reading level to determine if he was able to read and comprehend them. Various tests of reading may be employed for this purpose. The psychologist should determine whether any written confessions were actually written by the defendant, since confessions are often written by police officers for the defendant's signature. If so, the psychologist will need to assess whether the defendant could read and comprehend the written confession he signed. If the rights were read to the defendant, the psychologist must assess whether he understood the rights before waiving them.

Most psychologists will employ IQ testing to obtain an idea of the defendant's level of cognitive functioning, although there is no strict correlation between intelligence level and ability to make a valid waiver. School records are often obtained to assist in the assessment of cognitive functioning. Collateral information is usually gathered from people who are well acquainted with the defendant, such as parents, school-teachers, employers, friends, etc.

Since courts frequently consider the number of prior contacts with the Miranda rights as a factor, the psychologist should determine what criminal record, if any, the defendant has, and whether on those prior occasions he was given his rights and waived them. However, there is no absolute relationship between the number of prior arrests and the understanding of the rights.
Experts should utilize as many sources of information about the accused as possible, since malingering is a definite possibility in these cases, with defendants often attempting to appear more impaired than they actually are.

Specific tests for malingering are available to determine whether psychotic symptoms are feigned (The Structured Interview of Reported Symptoms (SIRS), available through PAR in Odessa, Florida) and whether cognitive deficits are feigned (Test of Memory Malingering (TOMM), available through MHS in North Tonowanda, N.Y.; Victoria Symptom Validity Test (VSVT), available through PAR in Odessa, Florida.).

Voluntariness Test

Deception on the part of the officers doing the interrogation does not make a statement inadmissible as a matter of law; rather, the inquiry is whether the deception made the waiver of constitutional rights involuntary. State v. Gilcrist, 91 Wn.2d 603 (1979), cited in State v. Burkins, 94 Wa.App. 677 (1999). Courts have held confessions to be voluntary even when police falsely told the suspect that his polygraph examination showed gross deception patterns, when police (falsely) told a suspect that a co-suspect had named him as the triggerman, and when police concealed the fact that the victim had died. State v. Braun, 82 Wn.2d 157 (1973). In an unpublished opinion Division 2 of the Washington State Court of Appeals held that the tactics set forth in the training manual for interrogations most frequently used for police training (Inbau, F.E. @ Reid, J., Criminal Interrogation and Confessions (3rd Ed. 1985)) are not inherently coercive despite a sociologist's testimony to the contrary, at least in a case in which the suspect had no mental problems, had been interrogated before, and was given food, drinks and breaks during his lengthy interrogation. State v. Schofield, 97 Wa.App. 1085 (1999). Intoxication does not render a statement involuntary unless it rises to the level of "mania whereby the defendant was unable to comprehend what he was doing or saying." (State v. Cuzzetto, 76 Wn.2d 378 (1969)), and "The possibility of a medical condition, in and of itself, does not vitiate the validity of the initial advisement or the voluntariness of the initial waiver." (State v. Sweet, 36 Wn.App. 377 (1984)).

Even if the suspect has a demonstrable mental disability, the U.S. Supreme Court has ruled in at least one case that unless the police take advantage of that disability, due process (and Miranda) are not implicated because there is no governmental coercion. In Connelly v. Colorado, 479 U.S. 157 (1986), the police noticed no signs of mental illness when the defendant admitted to a murder, but it was later testified by a psychiatrist that he had been "compelled" to talk because of "command delusions from God". The Supreme Court ruled the confession valid because there had been no police conduct "causally related to the confession"; the confession may have been "unreliable", but that was a matter to be decided under state law.

The Psychologist's Role in Assessing Voluntariness

In addressing the voluntariness issue, the psychologist or other expert should report on those aspects of the defendant's functioning which may have made him more vulnerable to influence by the police. Since some proof that the police knowingly took advantage of the defendant may now be required, experts should report on aspects of the police interaction with the defendant, so that "causal connection" issue can be addressed. (See Melton, et. al., Psychological Evaluations for the Courts (2nd. Ed.), Guilford Press, New York, 1986, pp. 158-162; these authors suggest the evaluator not couch his opinion in terms of the ultimate issue of "voluntariness".) Relevant issues would include whether the disability, if any, would have been apparent to a normal policeman, or whether the police were told about the disability before the questioning. The expert may also wish to address the body of literature pertaining to the amount of psychological coercion resulting from various types of interrogation methods. (See Kassin, S.M., Wrightsman, L.S., "Confession Evidence", in The Psychology of Evidence and Trial Procedure, Kassin & Wrightsman, Eds., 1985, pp. 67-94, and Kassin, S.M. @ McNall, K., "Police Interrogations and Confessions: Communicating Promises and Threat by Pragmatic Implication", 15 Law and Human Behavior 223 (1991)).

The Gudjonsson Suggestibility Scales may be helpful in assessing whether a given confession might have been coerced or “voluntary”, as they measure the degree to which an individual is able to stand up to inappropriately coercive and suggestive police conduct during interrogations. See the Gudjonnson Suggestibility Scales Manual, Afterhurst Limited Publishers, London (1987).

Reliability of Confessions

Very occasionally psychologists will be asked to address whether a given confession is "reliable". Psychologists are not able to determine whether a given confession is a true confession, but the discussion will center upon whether the circumstances of the giving of the confession were conducive to eliciting a "true" or reliable statement. It is well known that suspects will sometimes give false confessions. See White, W.S., "What is an Involuntary Confession Now?", Rutgers Law Review, Vol. 50, No. 4, Spring 1998, pg. 2001-57. They may do so even after having made a valid waiver of their Miranda rights, and they may do so voluntarily, although some false confessions elicited by coercive techniques may be analyzed by courts under the "voluntariness" test. Sometimes the suspect making the false confession is deluded, and believes he actually committed a crime he did not. Sometimes the suspect is covering up for someone else. Other times the false confession is the result of leading questioning of very young or severely disabled suspects; sometimes it seems apparent simply from listening to the tape or reading the transcript of the confession that the suspect did not really understand what it was he was answering "yes" to. At times the suspect does not seem to know any of the facts of the crime involved. The analysis in these cases involves whether there are sufficient indices of reliability (such as corroboration), and whether the circumstances of the questioning were conducive to reliability.

Assuming that the court rules at the 3.5 hearing that the confession was valid and thus is admissible before the jury, the defendant is still allowed to present evidence to the jury that the confession was unreliable. In Crane v. Kentucky, 476 U.S. 685 (1986) almost all of the State's case was based on the sixteen year old defendant's confession to murder; he confessed to the murder and to several other crimes while being questioned about an unrelated matter. At a pre-trial hearing the trial court denied the motion to suppress the confession. The trial court then refused to allow the defendant to present evidence as to why the physical and psychological environment in which the confession was obtained might have made the confession unreliable; the defendant wished to argue he had been badgered into falsely confessing. The U.S. Supreme Court held that "evidence surrounding the making of a confession bears on its credibility as well as its voluntariness", adding that "questions of credibility, whether of a witness or of a confession, are for the jury". Stating that "confessions, even those which have been found to have been voluntary, are not conclusive of guilt", the Court reversed the Kentucky Supreme Court's holding that the refusal to allow such testimony before the jury had been proper. If the defense raises the issue of the voluntariness of the confession in front of the jury, the jury should be instructed that it may give such weight and credibility to the statement, in view of the surrounding circumstances, as it sees fit. (See CrRLJ 3.5(d)(1) and WPIC 6.41).

Psychologists may thus at times be asked to testify before juries as to the effects of various interrogation procedures upon various types of individuals, although obviously expert witnesses cannot comment directly upon credibility of any confession, as that is a jury issue.

Conclusions: Psychologists' Role in the Law of Confessions

Psychologists most often provide testimony or reports at CrR 3.5 hearings on the issue of whether a Miranda rights waiver was valid. Important issues are the defendant's age, legal sophistication, maturity, reading level, education, and intelligence, as well as his ability to have "knowingly and intelligently" understood the version of the rights given.

Psychologists may also be called upon to provide evidence concerning the "voluntariness" of a confession. This area is conceptually "fuzzy", but involves whether the police were aware of any disability the suspect may have had, and if so, whether they took advantage of the suspect's disability by using coercive interrogation methods to overcome his will to resist questioning. The decision will center upon the interaction of the suspect's disability and the conduct of the police. Psychologists may also at times testify as to the coerciveness of police methods used with "normal" (not disabled) suspects.

In rare cases a psychologist may be called upon to assess the reliability of a confession. The question here will not be whether a confession is a true confession, but whether the circumstances surrounding the statements were conducive to reliability.

The author thanks Bruce Frumkin, Ph.D., for his assistance in reviewing this article and making valuable suggestions.