Interrogative Suggestibility

in Demosthenes Lorandos, ed. The Litigator’s Handbook of Forensic Medicine, Psychiatry and Psychology (Thomson Reuters, 2021 Forthcoming)

Univ. of San Francisco Law Research Paper No. 2021-08

117 Pages Posted: 27 Jan 2021 Last revised: 25 Sep 2022

See all articles by Laura Nirider

Laura Nirider

Northwestern University - Pritzker School of Law

Deborah Davis

University of Nevada, Reno - Department of Psychology

Richard A. Leo

University of San Francisco

Date Written: January 28, 2021

Abstract

This chapter traces the history of the law surrounding false confessions, beginning with a discussion of the twentieth-century origins of the “voluntariness test.” With the recent development of robust psychological and legal scholarship relating to police interrogations and the introduction of videotaped interrogations, the psychological impact of particular interrogation techniques on specific defendants is becoming central to courts’ voluntariness inquiries. A growing number of courts are exploring the psychological impact of police interrogation tactics, such as telling suspects lies about evidence, fact-feeding, or furnishing misinformation about the consequences of confession.

The authors survey the various approaches that courts take in determining whether to admit expert testimony on interrogations, noting that some courts have embraced the opportunity to hear testimony from psychologists who study social influence in the context of interrogation. However, some courts have declined to admit such expert testimony.

The authors offer detailed guidance on the selection of false confession experts. When deciding whether to proceed with hiring an expert, attorneys should look carefully at the entirety of the evidence, the characteristics of the defendant, and the circumstances of the interrogation. In order to overcome challenges to the admissibility of expert testimony on confessions, any experts retained by defense counsel should be experienced scholars with multiple publications on false confessions. The chapter includes detailed sample voir dire questions that experts on interrogation and confessions should be able to answer favorably.

The authors review common challenges to expert testimony admissibility, including prosecutorial claims that false confessions are rare, already within the common understanding of jurors, that testimony on false confessions will be unhelpful, misleading, confusing or prejudicial, and that the judicial system has developed adequate safeguards against false confessions, such as Miranda warnings, cross examination at trial, and judicial instructions on confessions. The authors discuss the social science that defense attorneys can use to counter these claims.

Keywords: criminal law, criminal procedure, evidence, expert witness, expert testimony, voluntariness, false confession, police interrogation

Suggested Citation

Nirider, Laura and Davis, Deborah and Leo, Richard A., Interrogative Suggestibility (January 28, 2021). in Demosthenes Lorandos, ed. The Litigator’s Handbook of Forensic Medicine, Psychiatry and Psychology (Thomson Reuters, 2021 Forthcoming), Univ. of San Francisco Law Research Paper No. 2021-08, Available at SSRN: https://ssrn.com/abstract=3773751

Laura Nirider

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

Deborah Davis

University of Nevada, Reno - Department of Psychology ( email )

United States

Richard A. Leo (Contact Author)

University of San Francisco ( email )

2130 Fulton Street
San Francisco, CA 94117
United States

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