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Competency & Confessions Ninth Judicial Circuit Office of the Public Defender Orlando, FL December 5, 2005


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Title: Competency & Confessions Ninth Judicial Circuit Office of the Public Defender Orlando, FL December 5, 2005

Competency ConfessionsNinth Judicial Circuit
Office of the Public DefenderOrlando, FL
December 5, 2005
  • Gregory DeClue, Ph.D., ABPP
  • Sarasota, FL
  • 941-951-6674

Agenda100-115 Introduction to Mentally Ill
Defendants Competency115-130 Minimal
Requirements U.S. Supreme Court130-145
Competence to Proceed145-200 Competence to
Waive the Right to Counsel200-215 Competence
to Forgo an Insanity Defense215-245 Confession
Issues245-300 General Discussion
I. Competence
The law seeks to implement a basic premise that
only the acts of an autonomous individual are to
be recognized by society. In doing so, the law
seeks to reaffirm the integrity of the individual
as well as the interests of society at large
(MPPS, p. 119)
MPPS Melton, Petrila, Poythress, and Slobogin
(1997). Psychological Evaluations for the Courts.
New York Guilford.
Key competency question Is there some kind of
incapacity to develop a defense with an attorney
that is the result of a mental illness?
When the defendant appears to have mental health
problems, there are
  • Legal issues
  • Psychological issues

Legal Issues
  • Is he competent to proceed?
  • Is he competent to decide to waive counsel and
    proceed pro se?
  • Is he competent to decide to forgo an insanity

Psychological issues
  • Is he mentally ill?
  • Is he mentally retarded?

some definitions
Incompetent to proceed
  • F.S. 906.106(9)  "Incompetent to proceed" means
    unable to proceed at any material stage of a
    criminal proceeding, which shall include trial of
    the case, pretrial hearings involving questions
    of fact on which the defendant might be expected
    to testify, entry of a plea, proceedings for
    violation of probation or violation of community
    control, sentencing, and hearings on issues
    regarding a defendant's failure to comply with
    court orders or conditions or other matters in
    which the mental competence of the defendant is
    necessary for a just resolution of the issues
    being considered.

Note that competence is a legal issue. There is
no psychological or psychiatric diagnosis of
Psychologists can assist courts in deciding
  • Presence or absence of functional impairments
  • Presence or absence of mental illness and/or
    mental retardation
  • Response style (e.g., malingering)
  • Type of mental illness
  • Severity of symptoms
  • Prognosis

Mental illness
  • F.S. 906.106(11)  "Mental illness" means an
    impairment of the emotional processes that
    exercise conscious control of one's actions, or
    of the ability to perceive or understand reality,
    which impairment substantially interferes with a
    defendant's ability to meet the ordinary demands
    of living. For the purposes of this chapter, the
    term does not apply to defendants who are solely
    retarded or autistic, and does not include
    intoxication or conditions manifested only by
    antisocial behavior or substance abuse

(Mental) Retardation
  • (12)  "Retardation" means significantly
    subaverage general intellectual functioning
    existing concurrently with deficits in adaptive
    behavior and manifested during the period from
    conception to age 18. "Significantly subaverage
    general intellectual functioning," for the
    purpose of this definition, means performance
    which is two or more standard deviations from the
    mean score on a standardized intelligence test
    specified in the rules of the department.
    "Adaptive behavior," for the purpose of this
    definition, means the effectiveness or degree
    with which an individual meets the standards of
    personal independence and social responsibility
    expected of the individual's age, cultural group,
    and community.

Note that in legal proceedings the question of
whether or not someone is mentally ill or
mentally retarded is a legal question.
DSM-IV-TR (the current diagnostic manual)
includes diagnoses for the following mental
  • 305.1 Nicotine dependence
  • 780.59 Breathing related sleep disorder
  • 307.47 Nightmare disorder
  • 300.7 Hypochondriasis
  • 302.75 Premature ejaculation
  • 625.8 Female hypoactive sexual desire disorder
    due to unattractive spouse

916.12  Mental competence to proceed.(1)  A
defendant is incompetent to proceed within the
meaning of this chapter if the defendant does not
have sufficient present ability to consult with
her or his lawyer with a reasonable degree of
rational understanding or if the defendant has no
rational, as well as factual, understanding of
the proceedings against her or him.
Dusky v. United States, 362 U.S. 402 (1960)
Two prongs
  • The defendants capacity to understand the
    criminal process, including the role of the
    participants in that process, and
  • The defendants ability to function in that
    process, primarily through consulting with
    counsel in the preparation of a defense.

Competency to proceed focuses on the defendants
present ability to consult with counsel and to
understand the proceedings.
The competency question is about the defendants
capacity as opposed to willingness or knowledge.
A reasonable degree of rational understanding is
The competency standard emphasizes cognitive
functioning. The presence of mental illness is
relevant only insofar as that illness affects
ones rational and factual understanding as one
consults with counsel and undergoes trial.
916.12(2)  An expert shall first determine
whether the person is mentally ill and, if so,
consider the factors related to the issue of
whether the defendant meets the criteria for
competence to proceed that is, whether the
defendant has sufficient present ability to
consult with counsel with a reasonable degree of
rational understanding and whether the defendant
has a rational, as well as factual, understanding
of the pending proceedings.
916.12(2)   A defendant must be evaluated by no
fewer than two experts before the court commits
the defendant or takes other action authorized by
this chapter or the Florida Rules of Criminal
916.12(2)   except if one expert finds that the
defendant is incompetent to proceed and the
parties stipulate to that finding, the court may
commit the defendant or take other action
authorized by this chapter or the rules without
further evaluation or hearing, or the court may
appoint no more than two additional experts to
evaluate the defendant.
916.12(2)   Notwithstanding any stipulation by
the state and the defendant, the court may
require a hearing with testimony from the expert
or experts before ordering the commitment of a
Recommendation to defense attorneys
  • Do not stipulate to the findings of one
    psychological expert who says that your client is
    incompetent and should be committed.

916.12(3)  In considering the issue of competence
to proceed, an examining expert shall first
consider and specifically include in his or her
report the defendant's capacity to
(a)  Appreciate the charges or allegations
against the defendant (b)  Appreciate the range
and nature of possible penalties, if applicable,
that may be imposed in the proceedings against
the defendant (c)  Understand the adversarial
nature of the legal process
Those first three criteria concern the
defendants ability to understand the legal
The next three criteria concern the defendants
ability to function in the legal process.
916.12(3) (d)  Disclose to counsel facts
pertinent to the proceedings at issue
(e)  Manifest appropriate courtroom behavior
and (f)  Testify relevantly and include in
his or her report any other factor deemed
relevant by the expert.
Some suggested relevant other factors
  • Capacity to relate to ones attorney
  • Capacity to weigh the advantages and
    disadvantages of a guilty plea and make a
    reasonable decision about whether to make such a
  • Capacity to weigh the advantages and
    disadvantages of an ngri (not guilty by reason of
    insanity) plea and make a reasonable decision
    about whether to make such a plea

More than 90
  • Percentage of criminal convictions resolved
    through a guilty plea rather than trial

Decisional competence
  • An intelligent plea of guilty (or no contest)
    requires not only understanding of the legal
    process and the ability to communicate
    information (the core of competency to stand
    trial) but also the capacity to make a decision
    in light of that understanding.

Decisional competence
  • An intelligent decision about whether to forgo a
    possibly viable insanity defense requires not
    only understanding of the legal process and the
    ability to communicate information (the core of
    competency to stand trial) but also the capacity
    to make a decision in light of that understanding.

Recommendations to defense attorneys
  • Address competency and sanity separately
  • Demand separate reports for competency and sanity
  • Do not attempt to resolve the question of sanity
    while the defendants competency is in question

  • 916.12 (4)  If an expert finds that the defendant
    is incompetent to proceed, the expert shall
    report on any recommended treatment for the
    defendant to attain competence to proceed. In
    considering the issues relating to treatment, the
    examining expert shall specifically report on
  • (a)  The mental illness causing the incompetence

  • 916.12 (4) (b)  The treatment or treatments
    appropriate for the mental illness of the
    defendant and an explanation of each of the
    possible treatment alternatives in order of
  • (c)  The availability of acceptable treatment
    and, if treatment is available in the community,
    the expert shall so state in the report and
  • (d)  The likelihood of the defendant's attaining
    competence under the treatment recommended, an
    assessment of the probable duration of the
    treatment required to restore competence, and the
    probability that the defendant will attain
    competence to proceed in the foreseeable future.

  • 916.12(5)  A defendant who, because of
    psychotropic medication, is able to understand
    the nature of proceedings and assist in the
    defendant's own defense shall not automatically
    be deemed incompetent to proceed simply because
    the defendant's satisfactory mental functioning
    is dependent upon such medication. As used in
    this subsection, "psychotropic medication" means
    any drug or compound used to treat mental or
    emotional disorders affecting the mind, behavior,
    intellectual functions, perception, moods, or
    emotions and includes antipsychotic,
    antidepressant, antimanic, and antianxiety drugs.

916.13  Involuntary commitment of defendant
adjudicated incompetent.-- (1)  Every defendant
who is charged with a felony and who is
adjudicated incompetent to proceed, pursuant to
the applicable Florida Rules of Criminal
Procedure, may be involuntarily committed for
treatment upon a finding by the court of clear
and convincing evidence that (a)  The defendant
is mentally ill and because of the mental
916.13(1)(a) 1.  The defendant is manifestly
incapable of surviving alone or with the help of
willing and responsible family or friends,
including available alternative services, and,
without treatment, the defendant is likely to
suffer from neglect or refuse to care for herself
or himself and such neglect or refusal poses a
real and present threat of substantial harm to
the defendant's well-being and 2.  There is a
substantial likelihood that in the near future
the defendant will inflict serious bodily harm on
herself or himself or another person, as
evidenced by recent behavior causing, attempting,
or threatening such harm
916.13(1) (b)  All available, less restrictive
treatment alternatives, including treatment in
community residential facilities or community
inpatient or outpatient settings, which would
offer an opportunity for improvement of the
defendant's condition have been judged to be
inappropriate and (c)  There is a substantial
probability that the mental illness causing the
defendant's incompetence will respond to
treatment and the defendant will regain
competency to proceed in the reasonably
foreseeable future.
916.13(2)  A defendant who has been charged with
a felony and who has been adjudicated incompetent
to proceed, and who meets the criteria for
commitment to the department under the provisions
of this chapter, may be committed to the
department, and the department shall retain and
treat the defendant.
916.13(2)   No later than 6 months after the
date of admission or at the end of any period of
extended commitment, or at any time the
administrator or designee shall have determined
that the defendant has regained competency to
proceed or no longer meets the criteria for
continued commitment, the administrator or
designee shall file a report with the court
pursuant to the applicable Florida Rules of
Criminal Procedure.
916.145  Adjudication of incompetency due to
mental illness dismissal of charges.--The
charges against any defendant adjudicated
incompetent to proceed due to the defendant's
mental illness shall be dismissed without
prejudice to the state if the defendant remains
incompetent to proceed 5 years after such
determination, unless the court in its order
specifies its reasons for believing that the
defendant will become competent to proceed within
the foreseeable future and specifies the time
within which the defendant is expected to become
competent to proceed. The charges against the
defendant are dismissed without prejudice to the
state to refile the charges should the defendant
be declared competent to proceed in the future.
916.17  Conditional release.-- (1)  The
committing court may order a conditional release
of any defendant who has been found to be
incompetent to proceed or not guilty by reason of
insanity, based on an approved plan for providing
appropriate outpatient care and treatment. The
committing court may order a conditional release
of any defendant in lieu of an involuntary
commitment to a facility pursuant to s. 916.13 or
s. 916.15.
916.301  Appointment of experts. (2)  If a
defendant's suspected mental condition is
retardation or autism, the court shall appoint
two experts, one of whom must be the
developmental services program of the department,
each of whom will evaluate whether the defendant
meets the definition of retardation or autism
and, if so, whether the defendant is competent to
Key point
  • There are different procedures for investigating
    whether a person meets criteria for mental
    illness or mental retardation/autism.

Components of a competent assessment of competence
  • 1) Notification
  • 2) Social History
  • 3) Legal Experience
  • 4) Ability to relate relevant facts
  • 5) Assessment of functional abilities for

Some research findings regarding competency to
10 15
  • Percent of clients about whom defense lawyers
    have concerns about competency

Disorganized speech
  • Best predictor of attorneys decisions to request
    competency examination

  • Percent of defendants who are referred for
    competency evaluations who are found to be
  • average across studies

  • Percent of defendants who are referred for
    competency evaluations who are found to be
    incompetent when more valid evaluation standards
    are applied

Common characteristics of incompetent defendants
  • History of mental illness
  • History of hospitalization for mental illness
  • Little education
  • Few useful job skills
  • Low IQ
  • Psychotic
  • Depressed

A two-stage model for competency assessment
  • Stage 1 screening assessment using a structured
    forensic assessment instrument
  • Stage 2 more comprehensive assessment of those
    subjects who may have competency deficits

Some competency assessment instruments
  • Fitness Interview Test (FIT)
  • MacArthur Competence Assessment Tool Criminal
    Adjudication (MacCAT-CA)
  • Competence Assessment for Standing Trial for
    Defendants with Mental Retardation (CAST-MR)
  • Evaluation of Competency to Stand Trial -Revised

DeClue, G. (2003). Toward a two-stage model for
assessing adjudicative competence. Journal of
Psychiatry Law, 31, 305-317.
  • http//

PRACTICEGregory DeClue, Ph.D., ABPP
  • gregdeclue_at_mailmt.comhttp//gregdeclue.myakkatech
    .com/ Professional Resource Presshttp//www.prp

Part 1 False Confessions Nutshell Chapter 1
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
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.
Chapter 1 IntroductionDNA profiling can
identify the guilty and exonerate the innocent
It was 9am, Monday September 15, 1984 when Sir
Alec Jeffreys removed some X-ray film from the
developing tank and experienced a rare moment in
science, an absolute eureka.
Wed been looking for good genetic markers for
basic genetic analysis and had stumbled on a way
of establishing a humans genetic identification.
By the afternoon wed named our discovery DNA
He used DNA profiling to establish the identity
of a man who raped and killed two 15-year-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 17-year-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 hadnt developed the technology,
Im 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.
Some innocent people confess to crimes
Although DNA testing can allow some falsely
accused and some falsely convicted people to
prove their innocence, in some cases there is no
biological evidence to test.
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.
Bedau and colleagues have analyzed 416 cases of
wrongful conviction of capital or potentially
capital crimes in the United States in the 20th
century. Of the 350 cases reported in the 1987
paper, 40 were sentenced to death.
These miscarriages of justice were caused by a
number of different errors, often in combination,
with the most common errors being perjury by
prosecution witnesses and mistaken eyewitness
Of the 350 cases reported in the 1987paper, 49
(14) involved false confessions. Although a few
of those were voluntary false confessions, most
were the result of rigorous interrogation by the
When DNA evidence reveals wrongful convictions,
in how many cases has an innocent person
confessed? Scheck, Neufeld, and Dwyer (2000)
found the answer to be nearly one in four (15 of
62 cases).
In U.S. law there are mechanisms designed to
reduce the risk of false confessions occurring,
and to increase the chance that a false
confession will be identified as such.
Psychologists can assist the courts in both of
those tasks.
Part 2 ImplicationsChapter 2 The Causes of
Police-Induced False Confessions?Why do
Suspects Confess?
Self-incriminating admissions or confessions lead
to serious negative consequences, commonly
including adverse effects to self-esteem and
integrity, loss of freedom and liberty, and
possible financial penalties.
Police interrogation can be construed as a
process of at least temporarily overcoming
whatever factors inhibit a suspect from
The following factors are expected to occur
frequently fear of legal sanctions, concern
about ones reputation, not wanting to admit to
oneself what one has done, not wanting ones
family and friends to know about the crime, and
fear of retaliation.
Nevertheless, the percentage of suspects who
confess during police interrogation is
substantial, ranging from under 40 to over 70
in various studies.
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.
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
Consider a decision faced by criminal defendants
at a later stage in the judicial process whether
to plead out or go to trial.
In making that decision, the defendant typically
has guidance from his attorney, as well as
friends and family, and has the luxury of time to
weigh his options.
There is considerable opportunity to gain
accurate information about the strength of the
case against him, often including detailed
depositions of prospective witnesses and
authentication of any physical evidence.
The prosecutor has an ethical responsibility to
provide exculpatory as well as inculpatory
evidence to the defense.
If the defendant chooses to enter a plea of
guilty or no contest, the judge will engage him
in a colloquy to insure that he understands the
rights he is forgoing and that he is competent to
waive the rights and enter a plea.
If there is doubt about his competence to
proceed, that must be explored, which typically
involves, at minimum, one psychological or
psychiatric evaluation relevant to his
understanding about the charges and his
decision-making ability.
It is estimated that over 90 of criminal cases
are resolved via plea bargaining rather than
trial. In at least some jurisdictions, a
defendant has the right to enter a best
interests plea.
The safeguards afforded a criminal defendant are
designed to insure that he is both capable of,
and actually performing, a rational act as he
pleads guilty (or no contest).
In contrast, interrogation procedures are
designed to encourage rational people to make
decisions that no rational person would make
outside of the context of the influence of modern
police interrogation.
During the shift from denial to admission, police
use one set of tactics to alter the suspects
perception of his immediate situation, and
another set of tactics to communicate information
to the subject about incentives to confess and
disincentives for continued denial.
The process of interrogation produces confession
because it results in the suspect being convinced
either that he has been caught (if he is guilty)
or that his situation is hopeless (if he is
innocent), that further denial is pointless, and
that it is in his self-interest to 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).
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 post-admission 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
If the suspects post-admission narrative does
not match the facts of the case, the reliability
of the confession is in doubt.
There are at least three ways to determine the
reliability of the confession1. Does the
confession statement lead to the discovery of
evidence that is unknown to the police (e.g., a
location of a missing murder weapon, or stolen
2. Does it include highly unusual features of the
crime that have not been made public (e.g.,
special mutilation of the body, unusual method of
killing or sexual act)?
3. Does the suspect provide accurate descriptions
of the mundane crime scene detail, which have not
been made public (e.g., the type of clothing the
victim was wearing, presence of certain pieces of
furniture at the crime scene)?
Every police interrogator in every case should
obtain a detailed post-admission narrative.
Immediate analysis of the post-admission
narrative and follow-up investigation of details
can guide the police in deciding whether to focus
their investigation on this suspect or to keep
looking for the truly guilty party.
If the suspect is charged, preservation of the
post-admission narrative facilitates fair
prosecution and defense of the case. Therefore
the post-admission narrative should always be
video- or audio-recorded.
To avoid actually, to recognize contamination,
the entire interrogation should be electronically
Chapter 3 The Consequences of Police-Induced
False Confessions
Three types of false confessions 1) voluntary
2) coerced-compliant 3) coerced-internalizedKa
ssin and Wrightsman (1985)
voluntary false confessions those purposely
offered in the absence of elicitation?
Lindbergh baby? Colorado v. Connelly (1986)
When making a coerced-compliant false confession,
the suspect publicly professes guilt in response
to extreme methods of interrogation, despite
knowing privately that he or she is truly
A coerced-internalized false confession is made
when the suspect through the fatigue,
pressures, and suggestiveness of the
interrogation process actually comes to believe
that he or she committed the offense.
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 persons first response is I did it.
Police-induced confessions occur when the police
approach a person and initiate questioning, the
persons first response is something other than
I did it, (for example, I didnt do it), the
police engage in further conversation with the
person, and the person subsequently says, I did
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.
The Consequences of Police-Induced False
In the 1986 decision in Colorado v. Connelly, the
Court wrote
Triers of fact accord confessions such heavy
weight in their determinations that the
introduction of a confession makes the other
aspects of a trial in court superfluous, and the
real trial, for all practical purposes, occurs
when the confession is obtained.
Chapter 4 Policy Recommendations for
Police-Induced False Confessions
1) Courts should adopt mandatory tape recording
requirements in felony cases.
I am convinced that police officers should be
required to electronically record entire
interrogations because
1. The same techniques that police use to elicit
confessions from guilty suspects can cause some
innocent people to confess some times. 2. It is
very likely that police neither intend to nor
recognize that they are creating false
confessions when they do.
3. There is no scientific, objective, reliable
way of distinguishing between true and false
confessions, up to and including the point of I
did it.
4. Careful analysis can often distinguish between
true and false confessions via a properly
conducted post-admission narrative. For example,
a guilty subject can give accurate details that
would only be known by people who had intimate
knowledge of the crime scene (e.g., by
perpetrating the crime).
5. In the process of interrogation, police
officers typically confront the suspect with a
combination of true and fabricated evidence,
building the impression that the suspect is
caught and there is nothing to be lost by
6. Just by human nature, people, including the
police, do not accurately recall the form and
content of their own questions, focusing instead
on the other persons answers.
7. Police interrogators contaminate the
confession to varying degrees as they provide
details of the crime to the suspect.
8. Only by recording the entire interrogation is
it possible to show whether the suspect is
providing details that come from guilty knowledge
or is merely spitting back what was fed to him
along the way.
Requiring that interrogations be recorded is not
to imply that police are liars or cheats.
The best reason for requiring that interrogations
be recorded, in my opinion, is so that one can
see whether the post-admission narrative includes
details that were never supplied by the police to
the suspect.
2) The admissibility of confession evidence
should be allowed only when the accused subjects
guilt is corroborated by independent evidence.
3) All confessions should meet a reasonable
standard of reliability before being admitted.
Part 3 FoundationPracticing forensic
psychologists can assist the courts by applying a
model that attempts to reflect, not reform the
law relevant to interrogations and confessions
(Grisso, 2003).
Chapter 5 A Model for Forensic Psychological
Grisso, T. (2003). Evaluating competencies
Forensic assessments and instruments, 2nd
Edition, New York Plenum.
Chapter 6 Legal Context
For psychologists interested in working on
disputed confession cases, it is helpful to have
some knowledge of the legal context. I recommend
reading all available U.S. Supreme Court cases
that have dealt with custodial confession issues.
Rumsfeldian Auto-colloquy Have I summarized all
the U.S. Supreme Court cases I found via Internet
search engines? You bet I have.
Have I inadvertently missed some cases? That
wouldnt surprise me a bit.
Have I provided the reader with an accurate
understanding of the current legal standards in
her jurisdiction? Absolutely not.
Do I recommend that the reader treat this chapter
as a legal text? Heavens, no.
Do I expect that the reader will have gained a
greater appreciation of the issues courts
consider in confession cases? I surely do.
Do this and previous chapters lay the groundwork
for lists of personal characteristics and
interrogation tactics that are considered to
increase the risk of a false confession and are
listed as such in chapter 10? Why, yes they do,
and I thank me for asking that.
Chapter 7 Legal Issues for which Psychological
Testimony May Be Relevant
A psychologists testimony is likely to be
relevant to some, but not all, legal issues
regarding a defendants confession. Different
legal cases will generate different psycholegal
Legal Issues For Which Psychological Testimony Is
Expected To Be Relevant
1. Did the State fail to prove, by a
preponderance of the evidence, that the Defendant
knowingly, intelligently, and voluntarily waived
his Miranda rights?
2. Did the State fail to prove, by a
preponderance of the evidence, that the
Defendants supposed confession was freely and
voluntarily made under the totality of the
3. Should the Court suppress the Defendants
coerced statements to the police because they are
so highly unreliable and virtually uncorroborated?
Note that these questions are in the form that
would be presented to the judge. The questions
posed to a testifying psychologist would be in a
different form, but would be designed to produce
testimony that would be relevant to the question
ultimately considered by the judge.
Part 4 Conducting Psychological Assessments and
Preparing Testimony
Chapter 8 Addressing Waiver of Miranda Rights
Legal Issue In Dickerson v. U.S., 530 U.S. 428
(2000), the U.S. Supreme Court upheld its
decision in Miranda v. Arizona, 384 U.S. 436
Miranda requires procedures that will warn a
suspect in custody of his right to remain silent
and which will assure the suspect that the
exercise of that right will be honored.
What does Miranda require? The Miranda Court
wrote To summarize, we hold that when an
individual is taken into custody or otherwise
deprived of his freedom by the authorities in any
significant way and is subjected to questioning,
the privilege against self-incrimination is
Procedural safeguards must be employed
to protect the privilege, and unless other fully
effective means are adopted to notify the person
of his right of silence and to assure that the
exercise of the right will be scrupulously
honored, the following measures are required.
He must be warned prior to any questioning that
he has the right to remain silent, that anything
he says can be used against him in a court of
law, that he has the right to the presence of an
attorney, and that if he cannot afford an
attorney one will be appointed for him prior to
any questioning if he so desires.
Opportunity to exercise these rights must be
afforded to him throughout the interrogation.
After such warnings have been given, and such
opportunity afforded him, the individual may
knowingly and intelligently waive these rights
and agree to answer questions or make a
But unless and until such warnings and waiver
are demonstrated by the prosecution at trial, no
evidence obtained as a result of interrogation
can be used against him.
The requirement of a knowing and intelligent
waiver comes from 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
self-incrimination and his right to retained or
appointed counsel.
The requirement of a voluntary waiver comes from
this passage from Miranda
Whatever the testimony of the authorities as to
waiver of rights by an accused, the fact of
lengthy interrogation or incommunicado
incarceration before a statement is made is
strong evidence that the accused did not validly
waive his rights.
In these circumstances the fact that the
individual eventually made a statement is
consistent with the conclusion that the
compelling influence of the interrogation finally
forced him to do so. It is inconsistent with any
notion of a voluntary relinquishment of the
Moreover, any evidence that the accused was
threatened, tricked, or cajoled into a waiver
will, of course, show that the defendant did not
voluntarily waive his privilege.
The requirement of warnings and waiver of rights
is a fundamental with respect to the Fifth
Amendment privilege and not simply a preliminary
ritual to existing methods of interrogation.
At a suppression hearing, a judge decides (among
other things) whether a particular person in a
particular situation at a particular time made a
knowing, intelligent, and voluntary waiver of his
Miranda rights.
A psychologists testimony is likely to be
considered relevant if it helps the judge make
that determination.
Some psychologists, by virtue of their knowledge,
training, and experience, are able to assist the
court in each of the following areas
1. Assess the defendants current mental status,
including intelligence, memory, reading
comprehension, listening comprehension, and
2. Reconstruct the defendants mental state at
the time of the waiver (similar to the type of
assessment in insanity and other
evaluations see, e.g., Rogers Shuman, 2000).
3. Gather and analyze information regarding the
physical and psychological environment in which
the waiver was obtained (Crane v. Kentucky,
1986, supra, p. 684).
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.
The second step is to conduct a current
psychological evaluation of the defendant.
Although the crucial question involves the
defendants mental state at the time of the
waiver, standard psychological assessment
procedures are designed to assess a persons
current mental state, intellectual ability,
reading ability, etc.
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)
by a structured diagnostic interview (See
Rogers, 2001), and/or by an objective test of
psychopathology such as the Personality
Assessment Inventory or the MMPI-2.
IQNeuropsychological Screening
If psychopathology is suggested by interview
and/or test data, testing for feigning or
exaggeration of symptoms, for example with the
Structured Interview of Reported Symptoms (SIRS)
should be conducted.
If cognitive deficits are suggested, then testing
for exaggeration or feigning should be conducted
with an instrument such as the Word Memory Test
(WMT) or the Test of Memory Malingering (TOMM).
Reading and listening ability, particularly
reading comprehension and listening
comprehensionWoodcock-Johnson III Tests of
Achievement (WJ-III) or Wechsler Individual
Achievement Test-Second Edition (WIAT-2)
WJ-III Letter-Word IdentificationReading
FluencyStory RecallUnderstanding
DirectionsPassage ComprehensionStory
Recall-DelayedOral ComprehensionReading
Administration of those subtests allows scoring
of the following clusters Oral
LanguageListening ComprehensionBroad
ReadingReading Comprehension
If the defendant wrote out a statement/confession
Writing FluencyWriting Samples ? Written
Expression composite
These subtests allow comparison to group norms
and they provide a mechanism for computing an age
level and a grade level for the various skills
Although it is currently not recommended that a
psychologist attempt to describe a persons
intelligence as comparable to that of, say, a
nine year old, it is useful and understandable to
report that a persons reading or oral
comprehension skills are at, say, a third-grade
Instruments for Assessing Understanding and
Appreciation of Miranda Rights (Grisso)
At the conclusion of the face-to-face evaluation
(which might involve more than one session), the
psychologist should have a clear assessment of
the persons current mental state a detailed
account of the persons recollection of events
occurring before, during, and after the waiver
the defendants description of how and why his
mental state may have been different at the time
of the waiver objective measurements of the
defendants current understanding of his rights
the defendants description regarding what he
understood at the time of the waiver and the
defendants description of why he waived his
Chapter 9 Addressing the Voluntariness of a
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
Defendants supposed confession was freely and
voluntarily made under the totality of the
There must be some element of police coercion for
a confession to be ruled involuntary (Colorado v.
Connelly, 1986).
The ultimate issue has been defined in
psychological terms
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 (Culombe v. Connecticut,
Courts do not look to experts to decide whether a
particular defendants 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 by
performing an assessment that includes the
1. Gather and analyze information regarding the
physical and psychological environment in which
the confession was obtained (Crane v. Kentucky,
2. Gather and analyze information about the
interrogation techniques employed by the police.
3. Assess the defendants current mental status,
including intelligence, memory, reading
comprehension, listening comprehension,
personality, and psychopathology.
4. Reconstruct the defendants mental state
during the confession.
5. Assist the judge in understanding the effect
of the interrogation techniques on the defendant
throughout the interrogation.
The most empirically validated instruments for
measuring interrogative suggestibility are the
Gudjonsson Suggestibility Scales (GSS 1 and GSS 2)
The Gudjonsson Compliance Scale (GCS) has been
developed to measure the personality trait of
There is a forensic assessment instrument that
can help psychologists gather information about
why a person confessed the Gudjonsson Confession
Questionnaire Revised (GCQ-R).
Chapter 10 Addressing the Reliability of a
Should the Court suppress defendants coerced
statements to the police because they are so
highly unreliable and virtually uncorroborated?
A psychologist serving as an expert witness can
present testimony as follows
1. Some people falsely confess to crimes some
2. Some interrogation procedures increase the
risk of false confessions.
3. Some personal factors make some people more
vulnerable to police influence than others.
4. There are procedures recommended by social
scientists and law enforcement agencies to avoid
false confessions.
5. There are procedures recommended by social
scientists and law enforcement agencies to
recognize false confessions when they occur.
For items 2 through 5, the psychologist can then
describe factors in the instant case that are
present, and those that are not present.
I am not in any way suggesting that psychologists
or other social scientists should replace juries
or do juries jobs. I do suggest that
psychologists who study the psychology of
interrogations and confessions have special
knowledge that can help juries do their jobs.
A psychologist who has studied the psychology of
interrogations and confessions can assist the
court when a particular interrogation or
confession is held up to careful scrutiny.
The psychological assessment and analysis will
not directly address whether a confession is true
or false, but it will assist the consideration of
the reliability of a confession.
In the short run, psychologists testimony may
sometimes enhance the cause of justice and may at
times help someone get away with murder.
In the long run, psychologists testimony is
likely to lead law enforcement officers to gather
confession evidence in a consistently more
reliable way, which will enhance liberty and
justice for all.
PRACTICEGregory DeClue, Ph.D., ABPP
  • gregdeclue_at_mailmt.comhttp//gregdeclue.myakkatech
    .com/ Professional Resource Presshttp//www.prp