1. Competency & Confessions Ninth Judicial Circuit Office of the Public Defender Orlando, FL December 5, 2005 Gregory DeClue, Ph.D., ABPP Sarasota, FL gregdeclue@mailmt.com 941-951-6674

2. Agenda 1:00-1:15 Introduction to Mentally Ill Defendants & Competency 1:15-1:30 Minimal Requirements – U.S. Supreme Court 1:30-1:45 Competence to Proceed 1:45-2:00 Competence to Waive the Right to Counsel 2:00-2:15 Competence to Forgo an Insanity Defense 2:15-2:45 Confession Issues 2:45-3:00 General Discussion

3. I. Competence

4. “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” (MPP&S, p. 119)

5. MPP&S = Melton, Petrila, Poythress, and Slobogin (1997). Psychological Evaluations for the Courts. New York: Guilford.

6. Key competency question: Is there some kind of incapacity to develop a defense with an attorney that is the result of a mental illness?

7. When the defendant appears to have mental health problems, there are Legal issues Psychological issues

8. 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 defense?

9. Psychological issues Is he mentally ill? Is he mentally retarded?

10. some definitions

11. 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.

12. Note that competence is a legal issue. There is no psychological or psychiatric diagnosis of “incompetent.”

13. 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

14. 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 impairment.

15. (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.

16. Note that in legal proceedings the question of whether or not someone is mentally ill or mentally retarded is a legal question.

17. DSM-IV-TR (the current diagnostic manual) includes diagnoses for the following mental disorders 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

18. 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.

19. Dusky v. United States, 362 U.S. 402 (1960)

20. Two prongs: The defendant’s capacity to understand the criminal process, including the role of the participants in that process, and The defendant’s ability to function in that process, primarily through consulting with counsel in the preparation of a defense.

21. Competency to proceed focuses on the defendant’s present ability to consult with counsel and to understand the proceedings.

22. The competency question is about the defendant’s capacity as opposed to willingness or knowledge.

23. A reasonable degree of rational understanding is required.

24. The competency standard emphasizes cognitive functioning. The presence of mental illness is relevant only insofar as that illness affects one’s “rational and factual understanding” as one consults with counsel and undergoes trial.

25. 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. …

26. 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 Procedure …

27. 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.

28. 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 defendant.

29. 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.

30. 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; …

31. Those first three criteria concern the defendant’s ability to understand the legal process.

32. The next three criteria concern the defendant’s ability to function in the legal process.

33. 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.

34. Some suggested relevant “other factors” Capacity to relate to one’s attorney Capacity to weigh the advantages and disadvantages of a guilty plea and make a reasonable decision about whether to make such a plea 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

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

36. 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.

37. 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.

38. 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 defendant’s competency is in question

39. 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; …

40. 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 choices; (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.

41. 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.

42. 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 illness: …

43. 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; …

44. 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.

45. 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. …

46. 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.

47. 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.

48. 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. …

49. PART III FORENSIC SERVICES FOR PERSONS WHO ARE RETARDED OR AUTISTIC

50. 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 proceed.

51. Key point: There are different procedures for investigating whether a person meets criteria for mental illness or mental retardation/autism.

52. 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 competence

53. Some research findings regarding competency to proceed

54. 10 – 15 Percent of clients about whom defense lawyers have concerns about competency

55. Disorganized speech Best predictor of attorneys’ decisions to request competency examination

56. 30 Percent of defendants who are referred for competency evaluations who are found to be incompetent* *average across studies

57. 10 Percent of defendants who are referred for competency evaluations who are found to be incompetent when more valid evaluation standards are applied

58. 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

59. 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

60. 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 (ECST-R)

61. DeClue, G. (2003). Toward a two-stage model for assessing adjudicative competence. Journal of Psychiatry & Law, 31, 305-317. http://gregdeclue.myakkatech.com

62. INTERROGATIONS AND DISPUTED CONFESSIONS: A MANUAL FOR FORENSIC PSYCHOLOGICAL PRACTICE Gregory DeClue, Ph.D., ABPP gregdeclue@mailmt.com http://gregdeclue.myakkatech.com/ Professional Resource Press http://www.prpress.com/

63. Part 1: False Confessions Nutshell Chapter 1: Introduction

64. 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 didn’t.”

65. 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.

66. At trial the defense can present evidence challenging the accuracy of the confession.

67. At both stages psychologists are called upon to present expert testimony, either at the request of the defense or the prosecution.

68. Chapter 1: Introduction DNA profiling can identify the guilty and exonerate the innocent

69. 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.

70. “We’d been looking for good genetic markers for basic genetic analysis and had stumbled on a way of establishing a human’s genetic identification. By the afternoon we’d named our discovery DNA fingerprinting.”

71. 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.

72. 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

73. 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.

74. During their interrogation of him he confessed to one of the murders, but not the other.

75. Jeffreys’ analysis showed that the same man had committed both rapes, but it was not the man who had confessed.

76. “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 hadn’t developed the technology, I’m confident he would have been gaoled [jailed] for life.”

77. 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.

78. These days, the use of DNA profiling sees 30 per cent of accused in British rape cases exonerated.

79. Some innocent people confess to crimes

80. 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.

81. 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.

82. 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.

83. 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 testimony.

84. 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 police.

85. 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).

86. 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.

87. Part 2: Implications Chapter 2: The Causes of Police-Induced False Confessions  Why do Suspects Confess?

88. 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.

89. Police interrogation can be construed as a process of at least temporarily overcoming whatever factors inhibit a suspect from confessing.

90. The following factors are expected to occur frequently: fear of legal sanctions, concern about one’s reputation, not wanting to admit to oneself what one has done, not wanting one’s family and friends to know about the crime, and fear of retaliation.

91. Nevertheless, the percentage of suspects who confess during police interrogation is substantial, ranging from under 40% to over 70% in various studies.

92. 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. …

93. … 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 offense.”

94. Consider a decision faced by criminal defendants at a later stage in the judicial process: whether to plead out or go to trial.

95. 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.

96. 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.

97. The prosecutor has an ethical responsibility to provide exculpatory as well as inculpatory evidence to the defense.

98. 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.

99. 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.

100. 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.

101. 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).

102. 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.

103. During the shift from denial to admission, police use one set of tactics to alter the suspect’s 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.

104. “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. …

105. … 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).

106. Post-admission Narrative

107. 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.

108. 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.

109. 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 reliable.

110. If the suspect’s post- admission narrative does not match the facts of the case, the reliability of the confession is in doubt.

111. There are at least three ways to determine the reliability of the confession: 1. 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 property)?

112. 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)?

113. 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)?

114. Every police interrogator in every case should obtain a detailed post-admission narrative.

115. 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.

116. 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.

117. To avoid [actually, to recognize] contamination, the entire interrogation should be electronically recorded.

118. Chapter 3: The Consequences of Police-Induced False Confessions

119. Three types of false confessions: 1) voluntary 2) coerced-compliant 3) coerced-internalized Kassin and Wrightsman (1985)

120. voluntary false confessions those purposely offered in the absence of elicitation  Lindbergh baby  Colorado v. Connelly (1986)

121. 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 innocent.”

122. 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.

123. DeClue (2005):  self-initiated  first response  police induced

124. 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.

125. First-response confessions occur when the police approach a person and initiate questioning, and the person’s first response is “I did it.”

126. Police-induced confessions occur when the police approach a person and initiate questioning, the person’s first response is something other than “I did it,” (for example, “I didn’t do it”), the police engage in further conversation with the person, and the person subsequently says, “I did it.”

127. 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.

128. The Consequences of Police- Induced False Confessions

129. In the 1986 decision in Colorado v. Connelly, the Court wrote:

130. “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.’”

131. Chapter 4: Policy Recommendations for Police- Induced False Confessions

132. 1) Courts should adopt mandatory tape recording requirements in felony cases.

133. I am convinced that police officers should be required to electronically record entire interrogations because:

134. 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.

135. 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.”

136. 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).

137. 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 confessing.

138. 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 person’s answers.

139. 7. Police interrogators contaminate the confession to varying degrees as they provide details of the crime to the suspect.

140. 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.

141. Requiring that interrogations be recorded is not to imply that police are liars or cheats.

142. 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.

143. 2) The admissibility of confession evidence should be allowed only when the accused subject’s guilt is corroborated by independent evidence.

144. 3) All confessions should meet a reasonable standard of reliability before being admitted.

145. Part 3: Foundation Practicing 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).

146. Chapter 5: A Model for Forensic Psychological Assessment/Consultation

147. Grisso, T. (2003). Evaluating competencies: Forensic assessments and instruments, 2nd Edition, New York: Plenum.

148. Chapter 6: Legal Context

149. 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.

150. Rumsfeldian Auto-colloquy Have I summarized all the U.S. Supreme Court cases I found via Internet search engines? You bet I have.

151. Have I inadvertently missed some cases? That wouldn’t surprise me a bit.

152. Have I provided the reader with an accurate understanding of the current legal standards in her jurisdiction? Absolutely not.

153. Do I recommend that the reader treat this chapter as a legal text? Heavens, no.

154. Do I expect that the reader will have gained a greater appreciation of the issues courts consider in confession cases? I surely do.

155. 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.

156. Chapter 7: Legal Issues for which Psychological Testimony May Be Relevant

157. A psychologist’s testimony is likely to be relevant to some, but not all, legal issues regarding a defendant’s confession. Different legal cases will generate different psycholegal questions.

158. Legal Issues For Which Psychological Testimony Is Expected To Be Relevant

159. 1. Did the State fail to prove, by a preponderance of the evidence, that the Defendant knowingly, intelligently, and voluntarily waived his Miranda rights?

160. 2. Did the State fail to prove, by a preponderance of the evidence, that the Defendant’s supposed confession was freely and voluntarily made under the totality of the circumstances?

161. 3. Should the Court suppress the Defendant’s coerced statements to the police because they are so highly unreliable and virtually uncorroborated?

162. 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.

163. Part 4: Conducting Psychological Assessments and Preparing Testimony

164. Chapter 8: Addressing Waiver of Miranda Rights

165. 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 (1966).

166. “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.” “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.”

167. 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 jeopardized. …

168. … 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. …

169. … 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. …

170. … Opportunity to exercise these rights must be afforded to him throughout the interrogation. …

171. … 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 statement. …

172. … 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.”

173. The requirement of a knowing and intelligent waiver comes from the following:

174. “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.”

175. The requirement of a voluntary waiver comes from this passage from Miranda:

176. “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. …

177. 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 privilege.

178. … 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. …

179. 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.”

180. 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.

181. A psychologist’s testimony is likely to be considered relevant if it helps the judge make that determination.

182. Some psychologists, by virtue of their knowledge, training, and experience, are able to assist the court in each of the following areas:

183. 1. Assess the defendant’s current mental status, including intelligence, memory, reading comprehension, listening comprehension, and psychopathology.

184. 2. Reconstruct the defendant’s mental state at the time of the waiver (similar to the type of assessment in insanity and other mental- state-at-the-time-of-the- offense evaluations; see, e.g., Rogers & Shuman, 2000).

185. 3. Gather and analyze information regarding “the physical and psychological environment in which the [waiver] was obtained” (Crane v. Kentucky, 1986, supra, p. 684).

186. 4. Assist the judge in understanding interactions among the above.

187. Assessment Procedures

188. First, the psychologist reviews all available information regarding the events that occurred immediately before, during, and after the waiver.

189. The second step is to conduct a current psychological evaluation of the defendant.

190. Although the crucial question involves the defendant’s mental state at the time of the waiver, standard psychological assessment procedures are designed to assess a person’s current mental state, intellectual ability, reading ability, etc.

191. 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) …

192. … 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.

193. IQ Neuropsychological Screening

194. 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.

195. 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).

196. Reading and listening ability, particularly reading comprehension and listening comprehension: Woodcock-Johnson III Tests of Achievement (WJ-III) or Wechsler Individual Achievement Test-Second Edition (WIAT-2)

197. WJ-III: Letter-Word Identification Reading Fluency Story Recall Understanding Directions Passage Comprehension Story Recall-Delayed Oral Comprehension Reading Vocabulary

198. Administration of those subtests allows scoring of the following clusters: Oral Language Listening Comprehension Broad Reading Reading Comprehension

199. If the defendant wrote out a statement/confession: Writing Fluency Writing Samples  Written Expression composite

200. 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 measured.

201. Although it is currently not recommended that a psychologist attempt to describe a person’s intelligence as comparable to that of, say, a nine year old, it is useful and understandable to report that a person’s reading or oral comprehension skills are at, say, a third-grade level.

202. Instruments for Assessing Understanding and Appreciation of Miranda Rights (Grisso)

203. 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 person’s current mental state; a detailed account of the person’s recollection of events occurring before, during, and after the waiver …

204. … the defendant’s description of how and why his mental state may have been different at the time of the waiver; objective measurements of the defendant’s current understanding of his rights …

205. … the defendant’s description regarding what he understood at the time of the waiver; and the defendant’s description of why he waived his rights.

206. Chapter 9: Addressing the Voluntariness of a Confession

207. 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 Defendant’s supposed confession was freely and voluntarily made under the totality of the circumstances?

208. There must be some element of police coercion for a confession to be ruled involuntary (Colorado v. Connelly, 1986).

209. The ultimate issue has been defined in psychological terms:

210. “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. …

211. … 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, 1961)

212. Courts do not look to experts to decide whether a particular defendant’s will was overborne, due to the inherent subjectivity of such a question.

213. Rather, psychologists can provide useful information about the person, the situation, and the person- situation interaction.

214. The psychologist can assist the Court by performing an assessment that includes the following:

215. 1. Gather and analyze information regarding “the physical and psychological environment in which the confession was obtained” (Crane v. Kentucky, 1986)

216. 2. Gather and analyze information about the interrogation techniques employed by the police.

217. 3. Assess the defendant’s current mental status, including intelligence, memory, reading comprehension, listening comprehension, personality, and psychopathology.

218. 4. Reconstruct the defendant’s mental state during the confession.

219. 5. Assist the judge in understanding the effect of the interrogation techniques on the defendant throughout the interrogation.

220. The most empirically validated instruments for measuring interrogative suggestibility are the Gudjonsson Suggestibility Scales (GSS 1 and GSS 2)

221. The Gudjonsson Compliance Scale (GCS) has been developed to measure the personality trait of compliance.

222. There is a forensic assessment instrument that can help psychologists gather information about why a person confessed: the Gudjonsson Confession Questionnaire – Revised (GCQ-R).

223. Chapter 10: Addressing the Reliability of a Confession

224. Should the Court suppress defendant’s coerced statements to the police because they are so highly unreliable and virtually uncorroborated?

225. A psychologist serving as an expert witness can present testimony as follows:

226. 1. Some people falsely confess to crimes some times.

227. 2. Some interrogation procedures increase the risk of false confessions.

228. 3. Some personal factors make some people more vulnerable to police influence than others.

229. 4. There are procedures recommended by social scientists and law enforcement agencies to avoid false confessions.

230. 5. There are procedures recommended by social scientists and law enforcement agencies to recognize false confessions when they occur.

231. For items 2 through 5, the psychologist can then describe factors in the instant case that are present, and those that are not present.

232. 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.

233. Synopsis

234. 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.

235. 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.

236. In the short run, psychologists’ testimony may sometimes enhance the cause of justice and may at times help someone get away with murder.

237. 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.

238. INTERROGATIONS AND DISPUTED CONFESSIONS: A MANUAL FOR FORENSIC PSYCHOLOGICAL PRACTICE Gregory DeClue, Ph.D., ABPP gregdeclue@mailmt.com http://gregdeclue.myakkatech.com/ Professional Resource Press http://www.prpress.com/