Commentary: Overcoming Judicial Preferences for Person- Versus Situation-Based Analyses of Interrogation-Induced Confessions

Journal of the American Academy of Psychiatry and the Law, Vol. 38, No. 2, 2010

Univ. of San Francisco Law Research Paper No. 2012-14

9 Pages Posted: 14 Apr 2010 Last revised: 13 Jul 2012

Deborah Davis

University of Nevada, Reno

Richard A. Leo

University of San Francisco - School of Law

Date Written: 2010

Abstract

This article identifies some fundamentally mistaken assumptions underlying admissibility decisions favoring disposition-related expert testimony regarding individual vulnerability to false confession over situation-based testimony describing how the context or nature of interrogation can promote false confessions. The authors argue that it is important to understand both the forces of influence within police interrogations and the individual differences that enhance vulnerability to these forces. Most false confessions occur in the context of interrogation and in response to the sources of distress and persuasive tactics of the interrogation. For this reason, this article suggests that experts asked to evaluate an interrogation-induced confession should be able to answer the following questions during their testimony: 1) What are the sources of distress facing the suspect during interrogation and how strong are they; 2) What has happened during the interrogation that might promote the suspect's misperception that confession will be inconsequential or in his or her best interest; and 3) How are distress, distress intolerance, and rational analyses of the net consequences of confession interrelated. Without testimony from experts who can clearly explain interrogation practices that produce distress, impair rational judgment, and cause suspects to believe that confessing will be inconsequential, judges and juries are unlikely to recognize false confession among any but the obviously impaired.

Keywords: expert testimony, false confessions, interrogation-induced confessions

Suggested Citation

Davis, Deborah and Leo, Richard A., Commentary: Overcoming Judicial Preferences for Person- Versus Situation-Based Analyses of Interrogation-Induced Confessions (2010). Journal of the American Academy of Psychiatry and the Law, Vol. 38, No. 2, 2010; Univ. of San Francisco Law Research Paper No. 2012-14. Available at SSRN: https://ssrn.com/abstract=1589843

Deborah Davis (Contact Author)

University of Nevada, Reno ( email )

Reno, NV 89557
United States

Richard A. Leo

University of San Francisco - School of Law ( email )

2130 Fulton Street
San Francisco, CA 94117
United States

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