American Judges Association


Date of this Version



Court Review, Volume 50, Issue 1 (2014)


Copyright American Judges Association. Used by permission.


Judges of course know that in the 1966 case of Miranda v. Arizona,1 the United States Supreme Court ruled that a confession cannot be admitted into evidence unless a waiver of the Miranda rights (the rights to remain silent, to avoid self-incrimination, to obtain legal counsel before and during police questioning, and to obtain free legal counsel if indigent) is made “knowingly, intelligently, and voluntarily,” and that the 1967 ruling in the case In re Gault 2 extended these protections to juveniles. It is well known, too, that there is a substantial body of case law and commentary addressing factors courts need to consider in evaluating whether a juvenile or adult’s waiver of Miranda rights was valid.3

What is less well known by judges is to how assess the confession. Experts are often relied on to help understand the psychological factors relevant to a Miranda waiver. In particular, experts provide guidance into the voluntariness and the validity of a confession.

Expert testimony is generally of two types. The first involves an explanation of the psychologically coercive nature of either interrogations in general or the interrogation of the specific individual. Such testimony explains how interrogations can lead to false or unreliable statements. Oftentimes the testimony involves a discussion of relevant research on the “science” of false confessions. In this type of expert testimony, the defendant is not typically evaluated because that expert is not a forensic clinician, someone who can assess the particular defendant’s confession rather than only talk about confessions in general.