Interrogations-and-Confessions-Handbook

The American Law on Confessions 303
or her performance on the witness stand. This notion changed in England with
the landmark case of Engin Raghip (see Chapter 18).
As far as the Gudjonsson Suggestibility Scales (GSS) are concerned, in 1998
a New York federal court ruled that the expert testimony based on the GSS met
the Daubert standard. 74 At the suppression hearing, Dr Sanford Drob, a clinical
psychologist, testified extensively about Raposo’s low-average IQ, opining that
this usually correlates with a tendency to be more suggestible and less equipped
to resist pressure. Further tests showed that Raposo, who had signed a written
statement admitting to arson, had a ‘self-defeating’ personality, which tends
to be isolated, manipulated by others and willing to be taken advantage of.
The GSS showed that Raposo tended to fill in information he did not know, but
that he did not display a tendency to shift his answers in response to negative
feedback.
The hearing court, viewing the totality of circumstances, concluded that although
the defendant’s psychological condition might make him suggestible,
the circumstances of the interrogation were not so onerous that his will was
overborne. Accordingly, the confession was found to be admissible.
At trial, the defence sought to introduce Dr Drob’s testimony that the defendant’s
psychological characteristics might render him more prone to making
a false confession than the general population. The government did not dispute
that the tests Dr Drob had used were generally accepted in the scientific
community and had been administered according to the appropriate standards.
It nevertheless sought to exclude the testimony, arguing that the defence had
failed to show that these test results correlated with the likelihood of making
a false confession, nor had their relevance to voluntariness been established.
The Government further argued that Dr Drob was being offered as a ‘human
lie detector, who will purport to establish scientifically what is properly in the
province of the jury’. 75
The court disagreed, saying that Dr Drob’s hearing testimony had gone into
considerable detail on how the traits measured by each particular test related
to the defendant’s psychological state during the custodial interrogation. The
testimony would therefore be ‘helpful to the jury in understanding that an
individual with a certain psychological profile could be more susceptible than
other members of the general population to making a false confession’. The
court found the government’s ‘human lie detector’ concerns to be ‘exaggerated’,
since Dr Drob would not be telling the jury whether the confession was false
or voluntary. He would merely be providing information on the defendant’s
psychological condition to aid the jury’s determination of those questions. 76
The testimony was accordingly ruled admissible.
Raposo illustrates that, even where the reliability of the GSS is undisputed
by the prosecution, the defence still must make a strong and specific showing as
to how its results are relevant to the issues before the court. Thus, a Wisconsin
state court, while not disputing the reliability of the GSS, nevertheless rejected
74 United States v. Raposo, 1998 WL 879723 (S.D.N.Y. 1998).
75 United States v. Raposo at ∗ 5– ∗ 6.
76 United States v. Raposo, at ∗ 6.