Interrogations-and-Confessions-Handbook

The American Law on Confessions 297
battered woman syndrome testimony is admissible under the Frye standard,
found that it was directly relevant to the question of whether the police questioning
had been coercive and not within the common experience of the ordinary
juror. 48
Indeed, one of the earliest American cases dealing with expert testimony
about false confessions pre-dated most of the current empirical research (Agar,
1999). In a murder trial that took place in the late 1980s, a California court
admitted testimony under the Frye standard where the defence proffered Elliot
Aronson, a professor of social psychology and an expert in ‘persuasion and
conformity’. 49 Having listened to tapes containing the defendant’s interrogation
and statement, Aronson identified certain characteristics of the interrogation
that might have caused the resulting confession to be false. He described several
social science experiments including the famous Milgram experiment (Milgram,
1974) where subjects were persuaded to administer what they believed to be
possibly fatal electric shocks, to illustrate that people greatly overestimate their
ability to resist pressure from an authority figure. He tied this experiment to the
reliability of Page’s confession by observing that ‘we say to ourselves, “My God,
I would never confess to this if it weren’t true.” But in my opinion, that’s exactly
what people say when we present them with this Milgram experiment. And yet
we know that somewhere between 60 and 70 percent of the entire population
would go all the way’ [in administering electric shocks to test subjects when
told to do so]. 50 Aronson’s testimony did not persuade the jury, however, and
Page was convicted.
These cases suggest that the admissibility of expert testimony to challenge
a confession does not necessarily stand or fall on the general acceptance of a
particular test under the Frye standard. However, if a test is offered, the expert
should obviously be prepared to testify about its general acceptance and to
make a strong showing to the trial court about its specific relevance to an issue
in the case.
The Daubert Standard
The federal courts and many state courts apply a more liberalized standard
based on the Federal Rules of Evidence (FRE) and their interpretation by the
recent Supreme Court cases, Daubert v. Merrell Dow Pharmaceuticals 51 and
Kumho Tire Co., Ltd. v. Carmichael. 52 FRE 702 reads:
If scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education, may testify thereto
in the form of an opinion or otherwise, if (1) the testimony is based on sufficient
48 Commonwealth v. Crawford, 429 Mass. 60 (1999).
49 People v. Page, 2 Cal.App.4th 161 (1991).
50 People v. Page, 2 Cal.App.4th at 183.
51 509 US 579 (1993).
52 526 US 139 (1999).