Interrogations-and-Confessions-Handbook

Conclusions 617
Outside England and Northern Ireland there are still large battles to be
fought in convincing the judiciary that miscarriages of justice can be occasioned
by false confessions and psychological vulnerability. Judiciaries are typically
very protective of the police and the integrity of the establishment. There is
commonly a failure to recognize and accept mistakes, and when mistakes have
occurred there is often poor motivation to learn from them and implement the
necessary changes to prevent future miscarriages of justice. Institutions such
as the police and the judiciary must approach cases with an open mind and be
receptive to new ideas and scientific advances. Psychological evidence is often
viewed as ‘soft science’, but with the advancement in assessment techniques and
theory in relation to disputed confessions the scientific basis of such evidence is
greatly improving. There is no doubt that many judges, including some British
judges, believe that psychological vulnerabilities in the absence of diagnosed
mental disorder (i.e. either learning disability or mental illness) should not be
admitted into evidence. The fear seems to be the following.
1. Such evidence will infringe on the province of the jury. Personality traits
such as suggestibility and compliance are seen by some judges as falling
within the experience of members of the jury.
2. What emerges from the psychological evaluation is seen as being largely
based on self-serving material from defendants, whose account is inherently
unreliable.
3. A risk that opening the floodgates to legal submissions undermines the
responsibility an individual must take for his or her actions.
I am of the view that judges should treat psychological evidence objectively and
fairly. Psychological evidence clearly does not fall into the same category as
DNA evidence in terms of its validity and scientific status, but a comprehensive
evaluation carried out by an experienced and competent clinical psychologist
can often provide valuable insights into the defendant’s likely reactions to the
interrogation and confinement, which will assist the jury in their deliberation.
Abnormal traits of suggestibility and compliance, and their impact during interrogation,
are not within the experience of the ordinary juror any more than
are intellectual impairment and the most common types of mental illness. With
regard to the second point of concern, there are various ways of corroborating
what defendants say to reduce the potentially unreliable nature of self-serving
statements. The third point represents a genuine fear and has been expressed
in relation to other types of innovative psychological evidence (Gudjonsson &
Sartory, 1983). I have noticed that in Britain defence lawyers are increasingly
referring cases for psychological evaluation in the hope that it will reveal a vulnerability
that will assist in ruling a confession statement inadmissible, even
in cases where defendants fully admit their role in the offence to their lawyer
(Gudjonsson, 1999b). Each case must of course be considered on its own merit.
One way around this problem is for the prosecution to seek expert evidence
in rebuttal and ensure the integrity and relevance of the expert defence assessment
and conclusions. This is already happening in Britain and in recent
years I have acted as an expert for defence and prosecution in about an equal
proportion of cases.