Mental Illness, Confessions, and Inculpatory Statements

• Author: Joseph Carl Ferencz
• Pages: 179-199

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CHAPTER 10

Mental Illness, Confessions,

and Inculpatory Statements

Joseph Carl Ferencz

Nemo tenetus psodere si ipsum — No man should be required to incriminate himself.

— R. v. Lilburne (1649), 4 St. Tr. 1270

A free and voluntary confession is deserving of the highest credit, because it is presumed to ow

from the strongest sense of guilt and therefore it is admitted as proof of the crime to which it refers;

but a confession forced from the mind by the attery of hope or by the torture of fear comes in so

questionable a shape when it is to be considered as the evidence of guilt, that no credit ought to be

given it; and therefore it is rejected.

— R. v. Warickshall (1783), 1 Leach 263

I. INTRODUCTION

e process of gathering evidence for the purpose of bringing an accused before the criminal courts usu-

ally involves taking statements from the accused. Such statements, when given freely and voluntarily, are

oen the most eective evidence for securing a conviction. Such statements, when not given voluntarily,

may be excluded as evidence before the court. is chapter explores the principles that govern the admis-

sibility of confessions and inculpatory statements and the role that psychiatric evidence can play in pro-

tecting an accused against the inappropriate production of statements not freely and voluntarily given.

Psychiatric evidence is most likely to be adduced where there is reason to believe that the statements

given by an accused are inadmissible due to compromised capacity (a failure to understand and ap-

preciate the process and the implications of the statement). Of course, depending on the circumstances,

psychiatric evidence may play a signicantly broader role in the proceedings than merely whether or not

a statement is admissible, for example, by assisting the court in determining tness to stand trial (see

Chapter 12) or criminal responsibility (see Chapter 14).

e majority of false confessions are the result of specic tactics and techniques employed by law

enforcement during interrogation of suspects. How and why innocent suspects come to act against their

own self-interests and confess to something they did not do has been written about for some time in the

social science literature (Münsterberg, 1909; Kassin & Keichel, 1996; Ofshe, 1997), and recently distilled

by Watson et al. (2010), who consider the phenomenon to be the result of interrogator-suspect inter-

action coupled with the suspect’s psychological makeup.

Although psychological factors, especially as they connect to motivation and mental health con-

siderations (put broadly) may be implicated in any false confession, the focus of this chapter is confes-

sions and questionable statements given by frankly mentally ill and/or emotionally and psychologically

compromised individuals. It is not argued here, as has recently been pointed by Davis and Leo (2010),

that mental illness or psychological compromise are invariably implicated in false confessions. It is con-

ceded that social or situational factors may be enough to cause a normal suspect to confess to something

he did not do.

Joseph Carl Ferencz

II. MENTAL STATE AND THE VOLUNTARINESS OF STATEMENTS

A. Cautioning the Accused

Prior to taking a statement it is incumbent on the police to caution an accused that he has a right to

remain silent and the right to speak to counsel. In Canada, the requirement of a police caution, and to a

degree, the form it takes, derives from section 10 of the Charter of Rights and Freedoms, under which an

arrested person has the right:

a) to be informed promptly of the reasons for the arrest,

b) to have and instruct counsel without delay and to be informed of that right; and

c) to have the validity of the detention determined by way of habeas corpus and to be released if the

detention is unlawful.

Although the police caution can vary somewhat from one police service to another, the most common

basic caution includes something like this:

You are under arrest for (charge), do you understand? You have the right to retain and instruct counsel

without delay. We will provide you with a toll-free telephone lawyer referral service, if you do not have

your own lawyer. You are not obliged to say anything, but anyt hing you do say may be given in evidence.

e equivalent (Miranda) warning in the United States (Miranda v. Arizona, 1966) is arguably more

alarming to an arrested individual in that the language used — “anything that you say can and will be

used against you in a court of law” (emphasis added) sounds more ominous (Moore & Gagnier, 2007).

Such cautions are in place to protect an accused from self-incrimination, however, situations may

arise where the ability of the accused to appreciate the meaning of a caution should be in doubt. It is

worth noting that it is also accepted practice that an accused be cautioned regarding the potential con-

sequences of statements made during the course of court-ordered psychiatric assessments for similar

reasons.

Empirical evidence gathered by Grisso (1986) in the American context has shown that juveniles and

intellectually handicapped people may have diculty understanding a caution. Kassin (2005) refers to

a number of studies that have found that many juveniles and adults with mental retardation and those

naïve about the criminal justice system do not understand the Miranda warning. Where the caution is not

suciently understood and this is established before the court, the statement may be ruled inadmissible.

In R. v. Evans (1991) the Supreme Court of Canada ruled that the inculpatory statement of the ac-

cused could not be included because he had not been informed of his rights in a manner that would have

allowed him to adequately understand them. e court in Evans held that:

the police did not comply with s. 10(b) [of the Charter of Rights]. It is true that they informed the appel-

lant of his right to counsel. But they did not explain that right when he indicated that he did not under-

stand it. A person who does not understand his or her right cannot be expected to assert it . . . where, as

here, there is a positive indication that the accused does not understand his right to counsel, the police

cannot rely on their mechanical recitation of the right to the accused; they must take steps to facilitate

that unders tanding.

R. v. Evans underscores the importance of an accused being able to making a “reasonable decision”

based on an understanding of any caution provided. e legal test to be met in such a determination is

the “operating mind” test (see below).

A review of the various critiques a number of authors have levied against currently used standard

police cautions is beyond the scope of this chapter. Directly on point, however, the reader is referred to a

recent article by Davis et al. (2011) that reviews issues regarding the comprehensibility and “user-friend-