Touro Law Review


David A. Perez


This Comment discusses the relationship between police interrogation tactics and false confessions in order to address the admissibility of false confession expert testimony, a question that has traditionally been left to the discretion of the trial judge. The current literature-indeed, the prevailing consensus-argues for drastic changes to police interrogation practices to prevent false confessions and, in combination with such changes, demands that expert testimony on false confessions be admitted in criminal trials. Despite the relative unanimity in the literature, state and federal courts remain bitterly divided on the question of admissibility of false confession expert testimony. Each decision in this judicial split has gone one of four ways: some courts only admit expert testimony that discusses aparticular defendant's mental condition; others limit the discussion to a general description of the phenomenon; still others permit a particularized discussion of the elements of a false confession present in the suspect's confession; and finally, many other courts at the state and federal level simply exclude this kind of testimony, whether or not it discusses a cognizable mental condition, the false confession phenomenon in general, or a particularized application of the false confession theory.

This Comment begins by conceding that there are proven and documented cases where false confessions have led to wrongful convictionsof innocent persons. However, a review of the empirical research demonstrates that false confessions are exceedingly rare and that the evidence upon which the leading false confession scholars rely on is very unreliable. The rarity of false confessions undermines the attack on current police interrogation practices, while the unreliability of the empirical research suggests that expert testimony on false confessions should not be admissible. Therefore, this Comment rejects the argument that, in light of the false confession phenomenon,we must overhaul our criminal justice system and admit false confession expert testimony. Part I provides a brief exposition on the phenomenon of false confessions. Part II discusses the currentjurisprudence on the admissibility of expert testimony in general, and false confession expert testimony in particular. Part III then addresses the theoretical and practical problems of admitting false confession expert testimony. Part IV discusses the false confession critique of police interrogation, and offers a defense of certain police interrogation tactics that false confession theorists indict.