Sleep Deprivation and Expert Witnesses
Introduction (the issue(s) presented and purpose of your paper)
The paper will focus on the links between sleep deprivation, false confessions and torture. The paper is written in the context of Federal Rules of Evidence 702 and the testimony of an expert witness. The focus lies in the fight between experts on each side (defense and prosecution) and how an expert witness can provide clarity regarding a confession and where the line drawn on the continuum between a voluntary confession and someone who is being tortured.
Findings of primary/secondary sources
Sleep Deprivation in the Context of Interrogation
Extreme sleep deprivation is widely used in the context of interrogation and has risen to a fine art. The executive summary of The Senate Intelligence Committee Report on Torture: Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program defines “sleep deprivation” as “keeping detainees awake for up to 180 hours, usually standing or in stress positions, at times with their hands shackled above their heads.”[footnoteRef:1] Sleep deprivation is accomplished through various methods, including loud music, sometimes alternated with loud hissing sounds, extended interrogation periods, interjection of renewed interrogation as the subject is about to fall asleep, spraying the interrogatee with cold water and/or subjecting the detainee to sustained low temperatures.[footnoteRef:2] In addition, for purposes later made evident in this paper, sleep deprivation is often used in concert with slaps, compulsory nudity and “wallings,” which consist of slamming the interrogatee against walls.[footnoteRef:3] Whether employed alone or in concert with other tactics, international reports indicate that sleep deprivation is a common weapon in an interrogator’s arsenal. [1: Feinstein, D & The Senate Select Committee on Intelligence, The Senate Intelligence Committee Report on Torture: Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program. New York: Random House Publishing Group, 2014.] [2: International Committee of the Red Cross. ICRC Report on the Treatment of Fourteen “High Value Detainees” in CIA Custody. http://www.nybooks.com/media/doc/2010/04/22/icrc-report.pdf, Feb. 2007.] [3: Feinstein, D & The Senate Select Committee on Intelligence.]
ii. Is Sleep Deprivation Torture?
The question of whether sleep deprivation is a form of torture is hotly debated. The United Nations Convention Against Torture defines torture, in relevant part, as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession…when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.[footnoteRef:4] [4: Office of the High Commissioner of Human Rights, United Nations. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, http://www.ohchr.org/EN/ProfessionalInterest/Pages/CAT.aspx December 1984.]
Furthermore, the third Geneva Convention prohibits withholding basic necessities, such as food, water and sleep.[footnoteRef:5] Given these two definitions, extreme sleep deprivation would seem to fit snugly within the definition of “torture.” Nevertheless, sleep deprivation is not classified as torture by U.S. law. The abovementioned CIA memo noted that the maximum allowable sleep deprivation is 180 hours, after which the detainee must be allowed to sleep for 8 continuous hours[footnoteRef:6] and yet another CIA memo asserted that none of the employed methods, including sleep deprivation, violated United Nations sanctions.[footnoteRef:7] [5: Geneva Conventions. International Humanitarian Law – Third 1949 Geneva Convention. International Committee of the Red Cross (ICRC) – Home. ICRC, 1949. https://www.icrc.org/ihl/INTRO/375?OpenDocument, Oct. 2010.] [6: Feinstein, D & The Senate Select Committee on Intelligence.] [7: Mazzetti, M, Interrogation Memos Detail Harsh Tactics by the C.I.A. New York Times 16 Apr. 2009.]
iii. Psychological and Physical Effects of Extreme Sleep Deprivation
The majority of experts conclude that most adults require between seven and eight hours of sleep per night.[footnoteRef:8] While sleep requirements vary, the science community treats sleep deprivation as deviation from the amount of sleep to which an individual is accustomed.[footnoteRef:9] Even mildly insufficient sleep can cause sleepiness, clumsiness and impaired cognitive performance.[footnoteRef:10] As sleep deprivation increases in severity, its harmful effects multiply and deepen. While science had found that severe sleep deprivation harms the human body’s biochemical and physiological functions, extreme sleep deprivation most seriously affects human functions requiring a high degree of cerebral involvement.[footnoteRef:11] Prior to 2016, behavioral studies already linked severe sleep deprivation to a laundry list of harms: poor regulation of emotions and mood;[footnoteRef:12] increased emotional problems; [footnoteRef:13] loss of the brain’s “medial prefrontal cortex connectivity,”[footnoteRef:14] which in turn causes increased response to negative stimuli in the amygdala, the brain’s neurological, integrative center for emotions, emotional behavior and motivation;[footnoteRef:15] and difficulty in consolidating negative emotional memories.[footnoteRef:16] [8: Saey, T, Dying to Sleep. ScienceNews 176.9 (2009), https://www.sciencenews.org/pictures/sleep/sn_sleep_dyingtosleep_lo.pdf. ] [9: Pinel, J, Sleep, Dreaming, and Circadian Rhythms. Biopsychology. Boston: Pearson Allyn and Bacon, 2007, 348-71. ] [10: Alhola, P and Paivi Polo-Kantola. Sleep Deprivation: Impact on Cognitive Performance. Neuropsychiatr Dis Treat. 3.5 (2007): 553-67.] [11: Fiorica, V, Physiological Responses of Men during Sleep Deprivation. Aviation Medicine 70.8 (1970): 1-14.] [12: Gujar, N, Seung-Schik Yoo, Peter Hu and Matthew Walker, Sleep Deprivation Amplifies Reactivity of Brain Reward Networks, Biasing the Appraisal of Positive Emotional Experiences, The Journal of Neuroscience, 31(12): March 2011. 4466-4474.] [13: Simon, E, Oren, N, Sharon, H, Kirschner, A, Goldway, N, Okon-Singer, H, Tauman, R, Deweese, M, Keil, A, and Hendler, T, Losing Neutrality: The Neural Basis of Impaired Emotional Control without Sleep, The Journal of Neuroscience, 35(38), September 2015. 13194-13205.] [14: Gujar, N, et al.] [15: id.] [16: id.]
Though prior studies indicated harms and concerns that might affect the reliability of confessions by sleep-deprived individuals, February 2016 saw the first published scientific study specifically linking severe sleep deprivation to false confessions. Published February 2016 in Proceedings of the National Academy of Sciences for the United States of America, the study was conducted by researchers from Michigan State University using eighty-eight Michigan State University students. Each of the eight-eight subjects accomplished a number of computer tasks and completed a Cognitive Reflection assessment of his/her intelligence during several sessions over the course of a week in psychology professor/researcher Kimberly Fenn’s Sleep and Learning Lab. While performing the tasks, the subjects were monitored and repeatedly warned to avoid hitting their computers’ “escape” keys because “this could cause the computer to lose valuable data.”[footnoteRef:17] On the last day of the study, half the subjects slept for eight hours and half the subjects received no sleep overnight. On the following morning, before leaving the lab, each subject was given a written statement recapping his/her activities in the lab and falsely stating that the subject pressed the “escape” key. Each subject was asked to check a box on the statement confirming the statement’s accuracy and sign his/her name to the statement. Only eighteen percent of the subjects who slept 8 hours the night before signed the inaccurate statement; however, fifty percent of the sleep-deprived subjects signed the statement. Furthermore, subjects who scored lower on the Cognitive test were even more severely affected by sleep deprivation and were far likelier to sign the false confession. According to the researchers’ calculation, sleep-deprived subjects were four-and-one-half times likelier to sign the false confession than were rested subjects. The researchers found this data troubling, surmising that as sleep deprivation during police interrogation is common, that as many as seventeen percent of all police interrogations occur between Midnight and 8:00AM and that as many as fifteen percent to twenty-five percent of all wrongful convictions in the United States are based on false confessions.[footnoteRef:18] Professor Fenn stated: [17: Frenda, S, Berkowitz, S, Loftus, E and Fenn, K, Sleep deprivation and false confessions. Proceedings of the National Academy of Sciences of the United States of America, 113(8), February 2016. 2047-2050.] [18: id.]
It’s a crucial first step toward understanding the role of sleep deprivation in false confessions and, in turn, raises complex questions about the use of sleep deprivation in the interrogation of innocent and guilty suspects.[footnoteRef:19] [19: Bhanoo, S, Study Links Sleeplessness and False Confessions, The New York Times, http://www.nytimes.com/2016/02/09/science/study-links-sleeplessness-and-false-confessions.html?_r=0. February 2016.]
As one of the study’s authors, Elizabeth Loftus, a cognitive psychologist from the University of California, Irvine, states: “It’s true, this is a far cry from confession to a murder. But we do know we can also get people to confess to things with more serious consequences.”[footnoteRef:20] Concerned by the evident link between sleep deprivation and false confessions, the study’s authors concluded, “A false admission of wrongdoing can have disastrous consequences in a legal system already fraught with miscarriages of justice. We are hopeful that our study is the first of many to uncover the sleep-related factors that influence processes related to false confession.[footnoteRef:21] Finally, the researchers recommended that police interrogations be videotaped to give additional insight to attorneys, judges and jurors regarding an accused’s psychological state during interrogation.[footnoteRef:22] [20: id.] [21: Frenda, S, et al.] [22: id.]
b. Groundwork for Exclusions of Coerced Testimony
The U.S. Criminal Justice System is interwoven with compelling competing interests. The government’s interest in securing a confession and conviction is tempered by an individual’s right against being compelled to testify against himself[footnoteRef:23] or being persuaded to confess due to physical or extreme psychological trauma.[footnoteRef:24] The fundamental principle is that “ours is an accusatorial and not an inquisitorial system — a system in which the State must establish guilt by evidence independently and freely secured and may not by coercion prove its charge against an accused.”[footnoteRef:25] Consequently, the Supreme Court bans coercive interrogation to garner involuntary confessions,[footnoteRef:26] allowing the accused to contest the voluntariness of his statements and empowering the court to exclude the accused’s statements from evidence if they are found to be involuntary.[footnoteRef:27] Therein lays the groundwork for admission or exclusion of an accused’s confession. [23: “No person … shall be compelled in any criminal case to be a witness against himself.” U.S. Const. Amend. V.] [24: “No Stat shall … deprive any person of life, liberty, or property, without due process of Law.” U.S. Const. amend. XIV, Â§1.] [25: Rogers v. Richmond, 365 U.S. 534, 541 (1961).] [26: See infra Note 68 and accompanying text.] [27: See infra Note 69 and accompanying text.]
c. Question of Voluntariness of Confession
As the accused is allowed to contest the voluntariness of his statements, expert testimony is typically used, per Federal Rules of Evidence 702, which states in its entirety:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.[footnoteRef:28] [28: Federal Rules of Evidence, Article VII, Rule 702 (2004).]
While Rule 702 appears reasonably straightforward, the application of the rule is difficult when the court attempts to discern the “voluntariness” of the accused’s confession. The admissibility of expert testimony as to a confession’s knowing, intelligent, and voluntary character, and therefore its admissibility, is judged by a legal threshold set by the Frye or Daubert standard.
i. James Alphonso Frye v. United States (293 F. 1013 (D.C. Cir. 1923)
James Alphonse Frye was a young black man arrested in Washington, D.C. in summer 1920, along with two other men, for robbery by taking another man’s watch, ring and wallet from him. In November 1920, Robert Wade Brown, a prominent black doctor and the president of the National Life Insurance Company, was shot to death in the front hallway of his Washington, D. C. home. The identity of Brown’s killer was a mystery and a thousand-dollar reward was offered for information leading to the killer. Meanwhile, one of Frye’s codefendants in the robbery case agreed to testify against Frye and the other codefendant in that case. In addition, a black dentist named John R. Francis agreed to testify against Frye, who sometimes worked at Francis’ office. Dr. Francis also claimed Frye confessed to him that Frye killed Brown. Under police questioning, Frye confessed to killing Brown.
According to the official confession, Frye claimed to have gone to Brown’s house for gonorrhea medicine but did not have money to pay for the medicine. Brown supposedly refused to give Frye the medicine and a struggle ensued, during which Brown was accidentally shot. Frye’s confession states, in part: “I tried to run to the door and he grabbed me again and knocked me down and I told him to put his hands up and he kept on hitting me, hitting me on the head, and in the struggle I think that my gun was fired.”[footnoteRef:29] Frye was convicted of the robbery charge and sentenced to four years in prison. [29: Lepore, J, On Evidence: Proving Frye as a Matter of Law, Science, and History, The Yale Law Journal, 124(4) http://www.yalelawjournal.org/article/on-evidence-proving-frye-as-a-matter-of-law-science-and-history. January-February 2015.]
Frye had different representation for the murder charge: the firm of Mattingly & Wood. Prior to Frye’s trial for the murder charge, Mattingly & Wood attempted to have Frye’s confession excluded from evidence through expert testimony. The defense attorney retained Dr. William M. Marston, an expert in the use of a sphygmomanometer, a blood-pressure cuff. According to Marston, he could detect deception by examining the readout of person’s systolic blood pressure under questioning. While the subject’s systolic blood pressure was measured by a sphygmomanometer, Marston would ask him/her a series of questions ranging from initially innocuous to eventually highly relevant to the case. Marston’s theory was that truth is effortless, while deception takes effort; consequently, if the subject’s systolic blood pressure was higher in the beginning of the examination and gradually lowered during the examination, his/her higher blood pressure was attributable to fear about the test rather than questions about the case, indicating truthfulness; however, if the subject’s higher systolic blood pressure increased during the examination, that indicated effortful deception when answering the case-relevant questions. Marston administered the examination to Frye in the Washington D. C. jail as Frye awaited trial. Frye stated that after hooking Frye up to the sphygmomanometer, “[Marston] asked me several questions, none pertaining to the case, then suddenly he launched upon several questions going into every detail of the case. Several days later, I read in the Washington News where he had said I had told the truth.”[footnoteRef:30] According to Marston’s scientific method, Frye’s systolic blood pressure indicated that Frye’s confession to killing Brown was deceptive. [30: id.]
At trial, Mattingly & Wood attempted to have Frye’s confession excluded from evidence on several bases. Mattingly & Wood attempted to introduce Marston’s expert testimony that Frye’s confession to the killing was deceptive. The defense also claimed that Frye was duped by both the police and Francis into confessing to Brown’s murder. According to the defense, a police detective and Francis convinced Frye that if he confessed to killing Brown: police would drop the robbery charge against him; Frye’s alibi about being at another person’s house during Brown’s killing would get him acquitted of the murder charge; and Frye would receive a share of the thousand-dollar reward for information leading to Brown’s killer. During trial, Frye’s defense team asserted that Brown’s real killer was Francis. The trial judge rejected Marston’s testimony and admitted Frye’s confession at jury trial. Frye was convicted of the lesser charge of second-degree murder, was sentenced to life imprisonment and was transported to Leavenworth.
Mattingly & Wood appealed the conviction to the D. C. Circuit Court of Appeals, based in large part on the issue of whether it was error for the trial Court to refuse to admit the testimony of an alleged expert in deception.[footnoteRef:31] The appellate court ruled upheld the trial court’s decision, establishing the Frye test for admissibility of expert witness testimony in the process: [31: id. ]
Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while the courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.[footnoteRef:32] [32: James Alphonso Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).]
With that terse decision in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), the court established a test for determining admissibility of expert testimony according to whether it is generally accepted by the appropriate scientific community.[footnoteRef:33] The Frye standard for admissibility of expert testimony was the norm in federal and state courts for approximately seventy years, is still used in numerous state courts and is still significant on the federal level. [33: id.]
ii. William Daubert, et ux., etc., et al., Petitioners v. Merrell Dow Pharmaceuticals, Inc. (509 U.S. 579 (1993)
The petitioners in this case were two children with severe birth defects and their parents. Petitioners sued Merrell Dow Pharmaceuticals, Inc. in California state court, alleging that a drug manufactured by Merrell Dow — Bendectin — caused severe birth defects to the two child plaintiffs. After successfully petitioning to have the case transferred to a federal district court in California, Merrell Dow moved for summary judgment, based in large part upon expert evidence in affidavit form. Merrell Dow’s expert, Steven H. Lamm, was physician, epidemiologist and well-established expert on the risks from exposure to numerous chemicals. In Merrell Dow’s behalf, Dr. Lamm studied all the literature on Bendectin and human birth defects, including over thirty published studies involving more than one hundred and thirty thousand patients. According to Dr. Lamm, none of the reviewed studies found that Bendectin is a human “teratogen,” which is an agent or factor causing an embryo’s malformation. Based on his expertise and literature review, Dr. Lamm gave his expert opinion that the use of Bendectin by a pregnant woman in the first trimester of pregnancy has not been shown to be an agent or factor for human birth defects.[footnoteRef:34] [34: William Daubert, et ux., etc., et al., Petitioners v. Merrell Dow Pharmaceuticals, Inc. (509 U.S. 579 (1993)]
In opposition to Merrell Dow’s summary judgment motion, plaintiff’s presented evidence from eight expert witnesses who found that the drug could cause severe birth defects, based on their review of numerous sources. The plaintiffs’ experts reviewed: in vitro (test tube) and in vivo (live) animal studies that linked Bendectin to defects; pharmacological studies of the drug’s chemical structure, which concluded there are similarities between Bendectin’s structure and the structures of known teratogens; and the reanalysis of published human statistical studies.
The District Court accepted Merrell Dow’s expert evidence but rejected plaintiffs’ expert evidence. Using the Frye threshold for admissibility of expert evidence, the court stated that “scientific evidence is admissible only if the principle upon which it is based is ‘sufficiently established to have general acceptance in the field to which it belongs.'”[footnoteRef:35] In the California District court’s judgment, plaintiffs’ expert evidence was prepared specifically for the case and did not meet the test for admissibility into evidence. Left with only Merrell Dow’s expert evidence after excluding plaintiffs’ expert evidence under the Frye standard, the court granted Merrell Dow’s motion for summary judgment. [35: id.]
Plaintiffs appealed to the United States Court of Appeals for the Ninth Circuit, arguing that the 1975 adoption of the Federal Rules of Evidence, including Rule 702 for the admissibility of expert testimony, supplanted Frye as the governing standard for admissibility of expert testimony in federal court. The Ninth Circuit rejected plaintiffs’ argument and affirmed the District Court’s decision due to the Frye standard and plaintiffs’ expert witnesses’ preparation of the evidence specifically for that case.
Plaintiffs then appealed to the United States Supreme Court, maintaining that the 1975 adoption of the Federal Rules of Evidence, including Rule 702 for the admissibility of expert testimony, supplanted Frye as the governing standard for admissibility of expert testimony in federal court. The majority of the Supreme Court agreed with plaintiffs’ argument due to: the 1975 adoption of the Federal Rules of Evidence, including Rule 702; the absence of any mention of Frye in the text to the Rules; and the Supreme Court’s prior decision that when common law rules such as Frye conflict with the Rules, then the Rules govern.[footnoteRef:36] The Supreme Court vacated the judgment of the Court of Appeals and remanded the case for further proceedings. This far more modern case of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) made the standard of Federal Rule of Evidence 702 the superseding standard and allows the relatively generous admission of expert testimony, provided it is adjudged scientifically trustworthy and useful to the trier-of-fact.[footnoteRef:37] Furthermore, Daubert was later interpreted to apply to expert testimony from experts with “weaker” scientific backgrounds, such as social scientists.[footnoteRef:38] [36: id.] [37: Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).] [38: Kumho Tire Company v. Carmichael, 526 U.S. 137 (1999).]
Both Frye and Daubert look deceptively simple. However, they are merely part of the test for expert witness admissibility. In fact, in order to admit expert testimony as the voluntariness of a confession, three thresholds must be practically met. First, the testimony should not be limited to general conclusions about whether an accused might make involuntary confessions under certain circumstances. Secondly, the proffered expert testimony must pass the easier Daubert or the more stringent Frye test for admissibility. Third, the expert’s procedure for arriving at his conclusions should be intimately connected to that particular Defendant: what were the conditions of the Defendant at the time he/she gave the confession?
There are certain considerations an expert must make to overcome inaccurate assumptions that are rife in modern jurisprudence. The first misconception is that in order for a confession to be false, the accused must have a mental defect or unusually high level of vulnerability. Experts have found a “fundamental attribution error,”[footnoteRef:39] the predisposition toward attributing behavior to an internal, personal defect or vulnerability.[footnoteRef:40] Considerable research reveals that behavior — such as uttering false confessions — is rooted in the person and the environment; in situations involving less external control or power, assertion of personal features is stronger; in situations with greater external control or power, assertion of personal features is weaker.[footnoteRef:41] [39: Watson C, Weiss KJ, Pouncey C: False confessions, expert testimony, and admissibility. J Am Acad Psychiatry Law 38:174-86, 2010.] [40: Heider F: The Psychology of Interpersonal Relations. New York: Wiley, 1958.] [41: Mischel W: Toward an integrative science of the person. Ann Rev Psychol 55:1-22, 2004.]
Another problem for helpful expert testimony is the considerable bias toward the assumption that in the absence of great physical cruelty or coercion, an ordinary person is extremely unlikely to falsely confess.[footnoteRef:42] Consequently, an expert has to consider what forces, if any, led the accused to believe that a confession might be beneficial or at least not harmful to his/her self-interest. Indeed, an interrogation ideally involves a potent anti-Miranda message that a confession of guilt will be beneficial while refusal to confess will be harmful to one’s self-interest.[footnoteRef:43] This is accomplished by using the most potent psychological tactics allowed by law[footnoteRef:44] in order to garner a confession that is not only complete but is also so compelling that later triers of fact will believe the accused would not give such a confession if he/she had not, in fact, committed the offense.[footnoteRef:45] As Police Interrogation and American Justice illustrates, these modern tactics can be extremely subtle and seemingly innocuous.[footnoteRef:46] Meanwhile, the triers of fact are often quite naive to the potency of these tactics.[footnoteRef:47] Furthermore, when used in concert, each tactic reportedly becomes even more potent: sleep deprivation when used with interrogation and threats is highly persuasive in eliciting confessions. [42: Drizin SA, Leo RA: The problem of false confessions in the post-DNA world. NC L Rev 82:891-1007, 2004.] [43: Davis D, Leo R: Strategies for prevention of false confessions, in Practical Psychology for Forensic Investigations and Prosecutions. Edited by Kebbell M, Davies G. New York: John Wiley, 2006, pp 121-50.] [44: Davis D, O’Donohue WT: The road to perdition: “extreme influence” tactics in the interrogation room, in Handbook of Forensic Psychology. Edited by O’Donohue WT, Levensky E. New York: Elsevier Academic Press, 2004, pp 897-996.] [45: Leo R: Police Interrogation and American Justice. Cambridge, MA: Harvard University Press, 2008.] [46: id.] [47: Inbau F, Reid J, Buckley J, et al.: Criminal Interrogation and Confessions (ed 4). Gaithersburg, MD: Aspen, 2001.]
Another factor eliciting false confessions is the nearly incomprehensible influence of innocence in compelling false confessions. This tendency is the “phenomenology of innocence,” a term coined by Saul Kassin in On the psychology of confessions: does innocence put innocents at risk? Am Psychol 60:215-28, 2005. Amazingly, an innocent person is more likely to waive Miranda rights, believing he/she has nothing to fear while simultaneously fearing being regarded suspiciously if he/she refuses to answer interrogation questions.[footnoteRef:48] Furthermore, when under prolonged duress, he/she may believe that a false confession is in his/her immediate best interests and will eventually be disproven.[footnoteRef:49] As a result of both the bias that false confessions spring from an internal mental condition or vulnerability and the phenomenon that normal, innocent people will falsely confess due to the “phenomenon of innocence,” the area of effective expert testimony becomes even more complex than it first appears. [48: Kassin S: On the psychology of confessions: does innocence put innocents at risk? Am Psychol 60:215-28, 2005.] [49: Leo R: Miranda and the problem of false confessions, in The Miranda Debate: Law, Justice and Policing. Edited by Leo R, Thomas GC. Boston, MA: Northeastern University Press, 1998, pp 271-82.]
Secondly, in order to understand the accused’s vulnerability, the expert must thoroughly understand all the tactics used in interrogation. An expert’s general knowledge of the efficacy of interrogation is insufficient. An expert witness should have fitting expertise for evaluating an individual’s vulnerability to interrogation tactics, which requires sufficient knowledge of the tactics, their mechanisms, how each tactic influences the individual’s behavior and how the tactics worked in concert to influence the individual’s behavior.[footnoteRef:50] This expertise and knowledge is vital to assessing the relative vulnerability of the accused and the admissibility of his/her confession: the interrogation tactics and the individual’s vulnerability would both be relevant to the admissibility of his/her confession. [50: Davis D & Leo R, Commentary: Overcoming Judicial Preferences for Person- Versus Situation-Based Analyses of Interrogation-Induced Confessions, Am Acad Psychiatry L. 38:2: 187-194, 2010.]
Expert testimony regarding the truly voluntary or involuntary nature of a confession should ideally include:
The tactics used on the suspect during interrogation and their strength;
Particular vulnerabilities of this suspect to one or more of the tactics used;
The way(s) in which the tactics can be used to garner a confession;
What occurred during interrogation that might lead the suspect to believe confession would be insignificant or in his best interest;
Whether and how this suspect is vulnerable to any of those occurrences;
The interrelation of the interrogation tactics, suspect’s vulnerability and suspect’s assessment that a confession would be inconsequential or in his/her best interests.[footnoteRef:51] [51: id.]
Given the complexity of the abovementioned tasks, the effective and helpful expert witness must familiarize himself/herself with extensive scientific studies on psychological influence and thought processes, interrogation tactics and the significant influences used on individuals during interrogation and must effectively articulate those concepts and findings to the trier of fact.[footnoteRef:52] Lack of this expertise will make the expert ineffective or even harmful to the process of determining a confession’s admissibility. [52: id.]
There is no simple formula for determining whether a confession is voluntary or involuntary, admissible or inadmissible. There are simply too many variables about “this” specific interrogation of “this” specific defendant to construct a neat formula for admission or exclusion. Police interrogation in the United States often involves extreme sleep deprivation. According to international standards defined by CIA practices, sleep deprivation involves keeping detainees awake for up to 180 hours, usually standing or in stress positions, at times with their hands shackled above their heads. This is accomplished through numerous methods, such as loud music, hissing sounds, extended interrogation sessions, repeatedly compelled interrogation as soon as the subject is about to fall asleep, cold water sprays and uncomfortably low temperatures. Furthermore, severe sleep deprivation is frequently used with other interrogation tactics, such as slaps, compulsory nudity and “wallings,” which consist of slamming the interrogatee against walls. Sleep deprivation is a common weapon in an interrogator’s arsenal and is reportedly used by numerous countries, including the United States.
The question of whether sleep deprivation is a form of torture is hotly debated. The United Nations maintains that torture is any act intentionally inflicting severe pain or suffering, whether physical or mental, on a person to obtain information or a confession, either from him or from another person. The intentional act must be inflicted by or at the provocation of or with the consent or approval of a public official or someone acting in an official capacity. Furthermore, the third Geneva Convention prohibits withholding basic necessities, such as food, water and sleep. Considering those two definitions, extreme sleep deprivation would clearly seem to constitute a form of torture. However, sleep deprivation is not deemed torture under U.S. law, both by careful definitions of the United Nations definition and by the practice of allowing 8 full hours of sleep after a maximum of 180 hours of forced wakefulness.
Most experts agree that adult humans require between seven and eight hours of sleep per night and for definitive purposes, science deems sleep deprivation a deviation from the amount of sleep to which a particular individual is accustomed. In its milder form, sleep deprivation can cause sleepiness, clumsiness and impaired cognitive performance. However, the increasing severity of sleep deprivation also increases the number and severity of harmful effects. Extreme sleep deprivation carries notable harm to biochemical and physiological functions, as well as those functions requiring pronounced cerebral involvement. Numerous studies leading up to the current year found that severe sleep deprivation is linked to poor regulation of emotions and mood; emotional problems; loss certain cerebral connectivity, which causes heightened responses to negative stimuli by the brain’s amygdala, the brain’s neurological, integrative center for emotions, emotional behavior and motivation; and problems associating negative emotional memories.
The most striking and troublesome study was published in February 2016, definitively linking severe sleep deprivation to false confessions. Using two control groups, one given adequate sleep and the other deprived of sleep, researchers set up a controlled situation in which all subjects were prompted to confess to committing the prohibited act of pressing “escape” keys on their computers. The study showed that only eighteen percent of the rested subjects confessed to the prohibited act while 50% of the sleep-deprived subjects confessed. In addition, subjects who scored lower on the administered intelligence test were even likelier to falsely confess. The commonality of extreme sleep deprivation in U.S. police interrogations led researchers to conclude that there is a definite link between sleep deprivation and false confessions. Also troubling were the research team’s assertions that up to seventeen percent of all police interrogations occur between Midnight and 8:00AM and that up to fifteen percent to twenty-five percent of all wrongful convictions in the United States are based on false confessions. Concerned by their findings that severe sleep deprivation is linked to false confessions, the study’s authors suggested the widespread practice of videotaping all confessions to give the judge, jury and attorneys in criminal cases more insight into the psychological state of a defendant who confesses to committing a crime.
The difficulties attendant to confessions obtained through sleep deprivation during interrogation are exacerbated by the competing interests repeatedly addressed by the U.S. Criminal Justice System. While the State has a clear interest in obtaining a conviction, often based on the accused’s convincing confession, the individual also has compelling constitutionally protected interests against self-incrimination and safety from admissions against his/her interests based on physical or psychological coercion. As an accusatorial rather than an inquisitorial system, the Justice System requires the State to prove its case by independent and freely obtained evidence. In order to safeguard the individual’s rights, the Constitution and U.S. Supreme Court established processes whereby an accused may challenge the voluntariness of his/her statements and the courts suppress statements found to be involuntary.
The voluntariness of an accused’s statements is typically challenged through expert testimony per Federal Rules of Evidence 702. In addition, the State’s assertion that a statement is voluntary is typically supported by expert testimony by virtue of the same Rule. According to Rule 702, several requirements must be met for either the defense or the prosecution to use “expert” testimony: the witness must be qualified as an expert by knowledge, skill, experience, training, or education; the expert’s specialized knowledge will help the trier of fact to understand the evidence or determine a fact in issue; sufficient facts or data form the basis of the testimony; the testimony is based on reliable principles and methods; and the expert reliably applied the principles and methods to the facts of the instant case.
In practice, admissibility of expert testimony is established using either the Frye standard, which is the standard of whether the testimony is generally accepted by the appropriate scientific community, or the Daubert standard, which is relatively generous in allowing expert testimony, provided it is adjudged scientifically trustworthy and useful to the trier-of-fact. In addition, the Daubert standard has been interpreted to allow expert testimony from experts with weaker scientific backgrounds. When applied to expert testimony regarding the voluntariness of a confession or statement, Frye and Daubert are merely part of the test for admissibility of expert testimony. First, the testimony must be specific to whether this accused made an involuntary confession under these circumstances. Secondly, the expert testimony must pass the Frye or less stringent Daubert tests. Third, the expert’s procedure leading to his/her conclusion as to the confession’s voluntariness must be directly related to the Defendant’s condition when he/she gave the confession.
Expert witnesses testifying for the prosecution or defense regarding the voluntariness of a confession must also overcome a number of misconceptions in modern jurisprudence. First the expert witness must overcome a slew of misconceptions and common difficulties. One misconception is the “fundamental attribution error” whereby the trier of fact erroneously believes that a false confession is necessarily uttered only by an individual with a mental defect or unusually high level of vulnerability. In reality, false confessions are rooted in both the person and the environment, with personhood dominating when environmental pressures are weak and environmental factors dominating when personhood is weak. A second misconception that must be overcome is the belief that a “normal” person would not falsely confess in the absence of extreme cruelty or coercion. In fact, a normal person may well falsely confess in the absence of extreme cruelty or coercion. The expert must consider the forces that led the individual to believe that a confession would be beneficial at best or harmless at worst. In actuality, professional interrogators cultivate methods of anti-Marandizing an interrogatee and using other potent tactics to glean a full and ideally unassailable confession. A third difficulty is the naivete of the trier of fact regarding the potency of seemingly innocuous tactics. A fourth difficulty is the tendency to view each tactic separately, though they are often used in concert: severe sleep deprivation may be used with threats, outright lies and/or other intimidation. When used in concert, each tactic becomes even more potent and further strengthens the efficacy of the other tactics; consequently, the expert must consider the combination of tactics, including but not limited to sleep deprivation. A fifth difficulty is the “phenomenology of innocence,” the tendency of perfectly innocent people to waive their Miranda rights, feeling they have nothing to fear, and then confessing to end the coercive tactics being used against them, mistakenly believing their confessions are in their immediate best interests and ultimately harmless. In addition to overcoming the abovementioned misconceptions and difficulties, the expert witness must understand the particular accused’s vulnerability by understanding all the tactics used in interrogation. The expert must know the tactics, their mechanisms, how each tactic influences the individual’s behavior and how the tactics worked in concert to influence the individual’s behavior. Without specific knowledge about the particular tactics used against this specific Defendant, the expert cannot effectively assist the trier of fact regarding the voluntariness and therefore admissibility of the confession.
Whether testifying to support or suppress admission of the accused’s confession, the expert witness must understand and be able to articulate: the tactics used on the suspect during interrogation and their strength; the specific vulnerabilities of this suspect to one or more of the tactics used against him/her; the way(s) in which the tactics can be used to obtain a confession; what occurred during the interrogation in question that might lead the suspect to believe his/her confession would be insignificant or in his/her best interest; whether and how this suspect is vulnerable to any of those occurrences; and the interrelation of the interrogation tactics, the suspect’s vulnerability and the suspect’s assessment that a confession would be inconsequential or in his/her best interests.
Given the complexity of the abovementioned tasks, the effective and helpful expert witness is daunting. Whether testifying for or against a confession’s admission into evidence, the expert witness must know the extensive scientific studies on psychological influence and thought processes, the interrogation tactics used to garner confessions and the influences used on individuals during interrogation. Furthermore, since the expert is there to assist the trier of fact, the expert witness must effectively articulate all the above elements and findings to the trier of fact. Understanding the extensive knowledge and communicative ability required for an effective expert witness, an able witness can be a significant help to the trier of fact while an ineffective expert witness can be a severe detriment to the question of whether a confession is voluntary or involuntary, admissible or inadmissible.
After considerable research into the natures of torture, legal U.S. police interrogation, sleep deprivation, confessions and their admissibility or inadmissibility for the trier of fact, there is clearly no way to effectively draw a line on the continuum between voluntary and involuntary confessions at a location so utterly remote from a specific defendant and a specific interrogation session in a specific case. We can maintain that an individual has compelling constitutionally protected interests against self-incrimination and safety from admissions against his/her interests based on physical or psychological coercion. However, Science shows that effective expert testimony, whether for or against a confession’s admissibility, entails deep, specific, detailed and articulate knowledge of: the tactics used on the suspect during interrogation and their strength; the specific vulnerabilities of this suspect to one or more of the tactics used against him/her; the way(s) in which the tactics can be used to obtain a confession; what occurred during the interrogation in question that might lead the suspect to believe his/her confession would be insignificant or in his/her best interest; whether and how this suspect is vulnerable to any of those occurrences; and the interrelation of the interrogation tactics, the suspect’s vulnerability and the suspect’s assessment that a confession would be inconsequential or in his/her best interests.
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