Interrogations-and-Confessions-Handbook

CHAPTER 11
The American Law on Confessions
GISLI H. GUDJONSSON AND LORCA MORELLO
This chapter presents an overview of United States law on confession evidence,
which differs in significant ways from that of England. In evaluating a confession
in an American case, it is essential to know what criteria the courts apply
in determining whether it can be used as evidence against the accused. It is also
necessary to know how American courts determine whether expert testimony
on the subject of false confessions is admissible. The first section will discuss the
basic principles of American confession law, particularly the requirement that
a confession be ‘voluntary’. The second section discusses how the law treats the
particular problems of evaluating the voluntariness of confessions of mentally
disabled suspects. The third section outlines the procedures of challenging the
voluntariness or reliability of a confession in court and discusses recent cases
relating to the admissibility of expert testimony. In the fourth section we discuss
some of the significant differences between American and British confession
law. It is of course impossible to offer a comprehensive view of American
law within a single chapter, particularly since there are important variations
among the states and between state and federal law. Nevertheless this chapter
will attempt to provide a foundation for anyone faced with evaluating and
seeking to introduce expert evidence about a confession in an American case.
THE BASIC LAW OF CONFESSIONS
The basis of American law is the United States Constitution as interpreted
by the decisions of the US Supreme Court. The Constitution defines the basic
protections that all state and federal courts must give criminal defendants.
Supreme Court decisions set the minimum standards of protection that may
not be curtailed by any law or court decision. The state courts or legislatures
may, however, accord persons greater rights than the minimum required by the
Supreme Court. For example, although the Supreme Court requires that the
government prove a defendant’s confession voluntary only ‘by a preponderance
of the evidence’, i.e. that the confession is more likely than not to be voluntary,