Judicial Notebook

Sinclair College

In Salem, Mass., in 1692, some colonists falsely confessed to being witches, resulting in trials that led to 19 executions. In 1932, when the 19-month-old baby of Charles Lindbergh was kidnapped and murdered, more than 200 innocent people came forward to confess to the crime.

Those cases are only among the most notorious in the history of false confessions in American jurisprudence. Only in the last decade or so has there been research and scholarly work addressing the psychological and legal issues involved. During the same time, the United States Supreme Court has addressed the general issue of expert testimony, developing guidelines for trial judges in three landmark decisions.

In Daubert v. Merrell Dow Pharmaceuticals, Inc., (509 U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct. 2786), 1993, the Supreme Court established the approach a trial judge must take when faced with a proffer of expert scientific testimony. The Court noted that a number of factors would bear on the scientific validity of the testimony, such as: whether the theory or technique can be and has been tested; whether it has been subjected to some form of peer review or scrutiny within the scientific community; and the reliability of the technique, including the potential rate of error and its acceptance within the relevant scientific community.

In the case of General Electric Co. v. Joiner, (118 S. Ct. 512), 1997, the Supreme Court reaffirmed its holding in Daubert that the decision of a trial court judge to admit or deny expert testimony would be reviewed only for an abuse of discretion. Finally, in Kumho Tire Co. v. Carmichael, (119 S. Ct. 1167), 1999, the Supreme Court declared that judges serve as "gatekeepers" for all expert testimony, not just scientific evidence.

Increasingly, attorneys seeking to show that a confession was either false, coerced or both are introducing a new kind of "expert" testimony. The work of false confession theorists and the court opinions that admit or deny their testimony has created one of the hottest legal issues in years, addressed both by courts in case opinions and by legal scholars.

A new case

The seminal case thus far is United States v. Hall, (93 F.3d 1337 7th Cir.), 1996. Hall was charged with murdering 15-year-old Jessica Roach. Hall initially de- nied involvement in the Roach case. But after more than 17 hours of questioning, he admitted involvement. There were no notes, tape recordings or video recordings of the session--only a statement written by an FBI agent and signed by Hall.

At the trial, Hall's defense was that he confessed to a crime he did not commit due to a personality disorder that makes him susceptible to suggestion and pathologically eager to please. Hall tendered Richard Ofshe, PhD, a social psychologist and expert in the field of coercive police interrogation techniques and the phenomenon of false or coerced confessions. The district court rejected Ofshe's testimony on two grounds: Ofshe would need to judge the credibility of testimony about what happened during the interrogation of Hall and Ofshe's testimony would add nothing to what the jury would know from common experience.

The appeals court reversed the trial court's exclusion of Ofshe's testimony, stating that the district court's ruling overlooked the utility of valid social science. The decision was sent back to the trial court for a full hearing on the admissibility of Ofshe's testimony.

Battle continues

Other courts have wrestled with the issue of expert testimony in the area of false confessions. In United States v. Shay, 57 F.3d 126, (1st Cir.), 1995, the First Circuit Court of Appeals in 1995 held the district court erred when it excluded the expert testimony of Robert Phillips, MD, a psychiatrist. Phillips was prepared to testify that Shay suffered from "pseudologia fantasica" (formerly Munchausen's disease), which might explain his alleged false confession. As in the Hall case, the court remanded the case to the district court for a full evidentiary hearing concerning the admissibility of Phillips's testimony. In so doing, the court suggested that the use of the Daubert factors might be appropriate to evaluate the expert testimony.

State courts have also addressed the admissibility of false confession expert testimony. Thus far, courts in Florida, Illinois, Maine, Minnesota, New Hampshire, New York and Wyoming have ruled that such testimony is inadmissible. Courts in Indiana, Ohio, Nebraska, North Carolina, Texas and Washington have ruled that the testimony is admissible.

Clearly, the battle over this sort of expert testimony by psychologists will continue. As the cases come up, psychologists will have many opportunities to contribute in the form of testimony and amicus briefs as well as research.

"Judicial notebook" is written by the Courtwatch Committee of APA's Div. 9 (Society for the Psychological Study of Social Issues). This column seeks to encourage involvement by psychologists in judicial decision-making.