Admissibility of false-confession testimony: know thy standard

The reliability of confessions is subject to a variety of factors, some of which give rise to expert testimony. To the degree that prosecutors construe the determination of reliability as an objective standard, they may attempt to bar testimony. Moreover, when the testimony is theoretical rather than clinical, there are additional challenges. Depending on jurisdiction, the admissibility of expert testimony on whether a confession was knowing, intelligent, and voluntary is subject to a legal threshold such as the Frye or Daubert standard. The authors review a 2002 New Jersey Superior Court ruling that illustrates the forces that shape the admissibility of confessions.     

Unmaking a murderer: behaviour sequence analysis of false confessions

The causes of false confessions are an important issue in legal studies and forensics. Recent advances in DNA testing have increased the number of proven false confessions; however, there are probably many cases without scientific evidence to refute the guilty verdict. The current research provides a novel approach to understand the structure and process of police interrogation techniques, in the United States behaviour sequence analysis. This method allows complex interactions in interrogations to be broken down and the progression of techniques analysed clearly. A case study is provided of an individual who confessed to a series of very serious crimes. The results show that several psychological techniques, such as leading statements, pressure, empathy, and inducements, are used, in increasing frequency, which resulted in the suspect's confession. This research provides support for behaviour sequence analysis as a new method to understand the structure of police interrogations and how psychological techniques may be used to gain false confessions.     

Confessions and expert testimony

In this clinical paper, the author discusses criminal confessions from the point of view of the expert witness who may be asked to comment on the reliability of the statement and waiver of rights. From the time a suspect is in police custody, constitutional protections against self-incrimination and for due process are in place. The Supreme Court set the standard for these situations in the 1966 Miranda v. Arizona decision. Although it has long been criticized by law enforcement, the decision was upheld in the 2000 decision in Dickerson v. U.S. For a waiver of rights to be valid, it must be a knowing, intelligent, and voluntary decision. Voluntariness is an equation of objective and subjective variables. Treatment by police, physical conditions of interrogation, the suspect's experience and mental state can alter the reliability of a confession. Accordingly, the author has devised a mnemonic for the recognition of conditions that may give rise to expert testimony. The conditions are: Mental illness, Intoxication, Retardation, Acquiescence, Narcotic withdrawal, Deception, and Abuse. These are discussed, supported by examples from the author's practice.     

Lies,damned lies,and medical experts: the abrogation of responsibility by specialty organizations and a call for action

The festering problem of medical expert witnesses proffering false testimony in court remains. A review of the many proposed reforms to resolve this chronic and outrageous practice has indicated little progress despite a resolution by the American Medical Association enunciating that medical expert witness testimony is effectively the practice of medicine. A questionnaire was sent to 36 specialty organizations to determine whether they had established guidelines, position statements, policies, or bylaws that govern the disciplinary management of their members who testify falsely. Responses were obtained from all 36 specialty organizations and showed that over 80% had no definitive disciplinary policies to deal with this egregious practice. This finding is all the more surprising given repeated judicial and other exhortations to professional organizations to "police themselves." To address the abrogation of responsibility by specialty organizations, new stringent disciplinary steps are proposed to exorcise the despicable practice of false expert witness testimony from the practice of medicine.     

Psychological Status of Former Refugee Detainees From the Woomera Detention Centre Now Living in the Australian Community

Whilst earlier studies of interviews with suspects have tended to focus upon the causes of false confessions, few have considered how to overcome false denials and obtain true confessions. The present study of 85 interviews with suspects of benefit fraud examined interviewer skill levels of tactics and attitudes (and the extent of their usage and presence) along with measuring any associated movement made towards confession. The study also examined whether or not the weight of evidence, found in prior studies to be a key factor in confessions, played a role when suspects made admissions to wrongdoing. It was found that confessions more likely occurred when skilful interviewer displays of certain tactics and attitudes were increasingly demonstrated, many of which are recommended by the PEACE interviewing framework, developed in England and Wales, whereas the weight of evidence alone was not an influential factor.     

Investigative interviewing: Recent developments and some fundamental issues

This paper reviews some fundamental issues about the nature, methods and consequences of investigative interviewing. Recent legal developments in England have led to improved protection for suspects who are detained for interviewing at police stations as well as improved interviewing techniques can have negative consequences, including false confession, the undermining of public confidence in the criminal justice system, resentment and hostility among defendants, post-traumatic stress disorder, and confessions being ruled inadmissible in court. The author argues that there is a fine balance facilitating the duties of the police to prevent and investigate crimes and answering the needs and protecting the rights of suspects and witnesses.     

The expert witness in forensic psychiatry.

Forensic psychiatry operates at the interface of the Justice and Health systems and has been defined as: "That branch of psychiatry which requires special knowledge and training in the law as it relates to the mental state of the offender, or alleged offender" [1]. As a consequence of working in this area, psychiatrists are often called into court to give evidence as "expert witnesses". This article examines some of the professional and legal issues involved in providing expert testimony. Secondly, it aims to outline some practical guidelines for giving evidence in the court-room. The predominant focus is on criminal, rather than civil, proceedings in which the forensic psychiatrist gives expert testimony; however much of the information is also relevant to other psychiatrists and psychologists undertaking this role in the legal arena.     

A case of a false confession after an inadvertent hypnotic induction

This article presents the case of a highly hypnotizable 28-year-old man who gave a false confession under police interrogation following an unintended hypnotic induction, but who was exonerated years later on the basis of DNA evidence. The author proposes that assessment of possible high hypnotizability be conducted in instances of otherwise unsubstantiated confessions.     

Psychiatric evidence on the ultimate issue

Federal Rule of Evidence 704(b) prevents psychiatrists and other expert witnesses in federal criminal trials from testifying as to whether a defendant did or did not have a mental state or condition comprising either an element of the crime or an element of the defense. This paper describes the origins of the Rule and its judicial development. The Rule is an exception to a 20th century trend that has seen witnesses increasingly permitted to address the ultimate issue. It has been applied inconsistently, has been criticized in appellate decisions, and has spawned an idiosyncratic legal definition of "helpful." Attempts to circumvent it have included inviting jurors to make inferences, inventing hypothetical cases that mimic the one before the court, and eliciting expert testimony on what is "possible" or "probable." Courts have held that rendering transparent the reasons behind an expert's conclusions can minimize the damage done by ultimate issue testimony.     

Expert witness testimony: A trial judge's perspective

This article discusses the use of expert, scientific testimony in Judge Weinstein's courtroom cases that involved Agent Orange, silicone breast implants, repetitive stress injuries, diethylstilbestrol (DES), and asbestos. The author summarizes the evidentiary standards for admitting expert, scientific testimony, and discusses some of the unique ethical and logistical issues presented by such evidence. Advice is offered for prospective expert witnesses. Possible solutions to the problems the legal and scientific communities face in balancing society's need for expert evidence and its limitations are addressed.     

What Evidence Matters to Jurors? The Prevalence and Importance of Different Homicide Trial Evidence to Mock Jurors

The present research explores how important different trial evidence is to mock jurors’ decisions. Study 1 surveys legal professionals to determine what evidence is common at homicide trials. Study 2 utilizes the list of evidence generated in Study 1 to ask mock jurors to report how important each piece of evidence would be in deciding their verdicts. The results indicate that DNA is most important to mock jurors, followed by fingerprints, the weapon, video records, crime-scene photos, gunshot residue, bodily secretions, video confession, testimony from a forensic expert, and eyewitness testimony. Study 3 utilizes a different methodology wherein mock jurors were presented with folders labeled with different evidence and asked to choose the piece of evidence they wanted to learn more about first, second, and so on. The results from Study 3 indicate again that DNA evidence is most important to mock jurors, followed by video confession evidence, eyewitness testimony, and fingerprint evidence. Implications are discussed.     

How downplaying or exaggerating crime severity in a confession affects perceived guilt

This study investigates how judgments of guilt are influenced by factual errors in confessions that either amplify or downplay the severity of the crime. Participants read a confession statement and police report in which either the confession was consistent with the police report, the suspect admitted to a worse crime or the suspect admitted to a lesser crime. Mediation analyses showed that, compared to consistent confessions, both types of directional errors reduced judgments of guilt. Inconsistencies that made the suspect look better – but not those that made the suspect look worse –also increased judgments of guilt via a direct effect. Confessions that contain errors that appear to exaggerate the severity of the crime prompt no higher judgments of suspect guilt; however, errors in confessions that are perceived to downplay the severity of the crime can prompt an increased perception of suspect guilt compared to a consistent confession.     

Evidence-based medicine and medicine-based evidence: the expert witness in cases of factitious disorder by proxy

The UK media has recently devoted much attention to the role of expert witnesses in child protection cases. One or two particular pediatricians who have given expert testimony have been the subject of personal vilification and professional investigation. These cases raise questions about the use of medical expert testimony when there is real uncertainty in the scientific community and the emotional stakes are high. Do doctors use scientific evidence to make diagnoses in the same way that the courts use evidence to make judgments? The cases also raise questions about the personal credibility and trustworthiness of experts: should we allow ourselves to be seen as personally powerful witnesses? Are we responsible for how we are seen by the jury? In this article, these questions are addressed, with the conclusion that distress and anxiety about child maltreatment influences all the players in the justice process and may interfere with the process of justice.     

Expert Evidence and Jurors’ Views on Expert Witnesses

Jurors who had served on criminal trials associated with charges of sexual offences against children were asked about their views of expert evidence and in particular about the characteristics and behaviour of expert witnesses. Responses indicated that jurors welcomed and valued expert testimony, perceiving it as an opportunity to hear from someone neutral in the context of the adversarial process. Jurors were asked to describe the qualities of expert witnesses that gave credibility to their evidence. Relevant professional experience, lack of bias, and clarity of evidence were ranked in that order. Also relevant were the confidence and eye contact of the expert witness with the jury, followed by the academic qualifications of the expert. These results have implications for the selection and training of expert witnesses and the admissibility of their proposed evidence.     

Juror perceptions of false confessions versus witness recantations

In false confessions, someone confesses to a crime but then later retracts that confession, whereas in witness recantations, an eyewitness testifies but then later revokes that testimony. The revocations are conceptually similar, but they differ in the author of the revocation – the defendant versus a third party. The current study examines differences in juror perceptions of the legitimacy of false confessions versus witness recantations, and also takes contextual influences (coercion and crime severity) into account. False confessions were found to be judged more harshly than witness recantations, but, surprisingly, levels of coercion and the severity of the crime did not influence decision-making in the manner that the original hypotheses predicted. Implications for the application of this research are discussed.     

The treating physician as expert witness: ethical and pragmatic considerations

OBJECTIVE: The objective of this analysis is to apprise pain physicians of the ethical concerns and practical considerations that arise when a treating physician is called upon to testify as an expert witness in a legal proceeding involving his or her own patient. The provision of expert testimony in medico-legal proceedings has come under heightened scrutiny in recent years. When a physician testifies as an expert witness, such testimony is considered to be the practice of medicine, and hence subject to the same ethical and professional obligations as patient care. Increasingly, medical professional organizations have promulgated guidelines for such activities, and even implemented oversight mechanisms to review complaints concerning expert testimony by their members. Additional issues are raised when the expert witness is also the treating physician for the patient who is a party to the legal proceeding in which the expert testimony is offered. CONCLUSIONS: While it is not categorically unethical or inadvisable for a physician to testify as an expert witness in a medico-legal proceeding involving his or her own patient, such activity raises special issues and concerns. Prospective expert witnesses in such situations should be cognizant of these issues and insure that they have been adequately addressed before and during the testimony.     

A Case Concerning Children's False Memories of Abuse: Recommendations Regarding Expert Witness Work

Expert witnesses can play a major role in legal cases concerning the reliability of statements. Abuse cases frequently contain only the memories of eyewitnesses/victims without the presence of physical evidence. Here, it is of the utmost importance that expert witnesses use scientific evidence for their expert opinion. In this case report, a case is described in which 20 children reported being sexually abused by the same teachers at their elementary school. The investigative steps that were taken by the police and school authorities are reviewed, including how they probably affected memory. In order to provide a sound expert opinion regarding the reliability of these statements, three recommendations are proposed. To reduce the effect of confirmation bias and increase objectivity, it is argued that expert witnesses’ reports should contain alternative scenarios, be checked by another expert, and focus on the origin and context of the first statement.     

The presentation of forensic psychiatric evidence in court

After defining the role of expert witness, the article reviews the basics of courtroom testimony under the rubrics of (a) truth (presenting under oath only that testimony that one can "swear to," to a reasonable degree of medical certainty); (b) testing (including both psychological testing and tests to assess admissibility standards); and (c) theater (including elements of drama, solemnity, and ritual as well as persuasiveness to the "audience"). Pathways to effectiveness are discussed, including use of visual materials, adjustment of language level for the jury's comprehension and attention to the narrative dimension of the case. Areas of excluded testimony are identified, such as the "ultimate issue" in the case, comments on credibility of other witnesses and comments on the legal process itself. Pitfalls that lie on the path to effectiveness are described, including narcissistic arrogance, anger, and using testimony in a personal crusade; means of avoiding these pitfalls are noted. The author concludes that effective courtroom testimony fulfills expert witness functions necessary to the legal system.     

Estimating present and future damages following child maltreatment

The child psychiatric forensic evaluation of children and adolescents who are plaintiffs in civil lawsuits regarding their present and future damages from child maltreatment requires knowledge of current research findings on the short-term and long-term consequences of child maltreatment, evidence-based treatments for psychological trauma, and relevant professional guidelines, along with knowledge of the ethics and laws governing mental health expert practice and testimony in personal injury litigation. This article reviews current research and recommends an approach to these evaluations and expert testimony that is informed by current research findings, recently developed professional guidelines, and many years of professional experience.