Amicus Curiae Brief — Brendan Dassey, Petitioner v. Michael A. Dittmann

No. 17-1172

IN THE

Supreme Court of the United States

______________________

BRENDAN DASSEY,

Petitioner,

v.

MICHAEL A. DITTMAN,

__________________________

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Seventh Circuit

_____________

BRIEF FOR THE

AMERICAN PSYCHOLOGICAL ASSOCIATION,

AMERICAN PSYCHIATRIC ASSOCIATION,

NATIONAL ASSOCIATION OF SOCIAL

WORKERS, AND AMERICAN ACADEMY OF

PSYCHIATRY AND LAW AS AMICI CURIAE IN

SUPPORT OF PETITION FOR

A WRIT OF CERTIORARI

_____________

Nathalie F.P. Gilfoyle

Deanne Marie Ottaviano

AMERICAN PSYCHOLOGICAL

ASSOCIATION

750 First Street, NE

Washington, DC 20002

(202) 336-5500

MARCH 26, 2018

Beth S. Brinkmann

Counsel of Record

Megan A. Crowley

Daniel G. Randolph

COVINGTON & BURLING LLP

One CityCenter

850 Tenth Street, NW

Washington, DC 20001

bbrinkmann@cov.com

(202) 662-6000

Counsel for Amicus Curiae American Psychological Association

Additional Counsel Listed on Inside Cover

Aaron M. Panner

Collin R. White

KELLOGG, HANSEN, TODD,

FIGEL & FREDERICK, PLLC

Sumner Square

1615 M Street, NW

Suite 400

Washington, DC 20036

(202) 326-7900

Counsel for Amici Curiae

American Psychiatric

Association &

American Academy of

Psychiatry and Law

Anne B. Camper

General Counsel

NATIONAL ASSOCIATION OF

SOCIAL WORKERS

750 First Street, NE

Suite 800

Washington, DC 20001

(202) 336-8271

Counsel for Amicus Curiae

National Association of

Social Workers

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................... iii

INTERESTS OF AMICI CURIAE ..........................1

INTRODUCTION AND SUMMARY OF

ARGUMENT .......................................................3

ARGUMENT ..............................................................8

I.

II.

Psychological Research Demonstrates

That Certain Interrogation Techniques

Are Psychologically Coercive And Increase

The Risk Of False Confessions—Even

Among Adults ......................................................8

A.

Maximization Techniques, Especially

False Evidence Tactics, Increase the

Risk of False Confessions .............................9

B.

Minimization Techniques Increase

the Risk of False Confessions ....................12

Psychological Research Supports the Clear

and

Longstanding

Mandate

That

Purported Confessions By Juveniles Be

Evaluated With the “Greatest Care” To

Determine Whether They Were Voluntary

or, Rather, the Result of Coercion ..................... 15

A.

Juveniles Are Far More Likely Than

Adults to Confess Falsely and

Against Their Will ......................................16

ii

B.

Juveniles Are Prone to False

Confession Because They Lack

Mature Judgment and Are

Vulnerable to Pressure ..............................18

1. Immaturity of Judgment ..................... 19

2. Vulnerability to Pressure ..................... 23

III. Research Confirms That Individuals With

Low Intelligence Are At Higher Risk For

False Confession ................................................ 25

CONCLUSION ........................................................ 28

iii

TABLE OF AUTHORITIES

CASES

Page(s)

Blackburn v. Alabama,

361 U.S. 199 (1960) ............................................ 5, 6

Colorado v. Connelly,

479 U.S. 157 (1986) ................................................ 7

Culombe v. Connecticut,

367 U.S. 568 (1961) .............................................. 28

Fikes v. Alabama,

352 U.S. 191 (1957) .............................................. 28

Gallegos v. Colorado,

370 U.S. 49 (1962) ................................................ 15

In re Gault,

387 U.S. 1 (1967) .............................................. 7, 15

Haley v. Ohio,

332 U.S. 596 (1948) .............................................. 15

Hall v. Florida,

134 S. Ct. 1986 (2014) ...................................... 3, 26

J.D.B. v. North Carolina,

564 U.S. 261 (2011) .......................................... 5, 15

Jackson v. Denno,

378 U.S. 368 (1964) ................................................ 5

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Lynumn v. Illinois,

372 U.S. 528 (1963) .............................................. 14

Miller v. Fenton,

474 U.S. 104 (1985) ................................................ 7

Miranda v. Arizona,

384 U.S. 436 (1966) ............................................ 6, 8

Montgomery v. Louisiana,

136 S. Ct. 718 (2016) ................................ 16, 18, 19

Moore v. Texas,

137 S. Ct. 1039 (2017) ............................................ 3

Payne v. Arkansas,

356 U.S. 560 (1958) .............................................. 28

Reck v. Pate,

367 U.S. 433 (1961) .......................................... 7, 28

OTHER AUTHORITIES

American Psychiatric Association, Position Statement on Trial and

Sentencing of Juveniles in the

Criminal Justice System (July 2016) .................... 3

American Psychological Association,

Resolution on Interrogations of

Criminal Suspects ...................................... 2, 11, 15

v

TABLE OF AUTHORITIES—Continued

Page(s)

Appleby, Sara C., et al., Police-Induced

Confessions: An Empirical Analysis

of Their Content and Impact, 19 Psychol. Crime & L. 111 (2013) ................................... 4

Arnett, Jeffrey, Reckless Behavior in

Adolescence: A Developmental

Perspective, 12 Developmental Rev.

339 (1992) ............................................................. 19

Blandón–Gitlin, Iris, et al., Jurors

Believe Interrogation Tactics Are Not

Likely to Elicit False Confessions, 17

Psychol. Crime & L. 239 (2011) ............................. 3

Cauffman, Elizabeth & Laurence

Steinberg, (Im)maturity of Judgment

in Adolescence: Why Adolescents May

Be Less Culpable Than Adults, 18

Behav. Sci. & L. 741 (2000) ................................. 20

Cauffman, Elizabeth, et al., Age

Differences in Affective Decision

Making as Indexed by Performance

on the Iowa Gambling Task, 46 Developmental Psychol. 193 (2010) ......................... 19

Chojnacki, Danielle E., et al., An

Empirical Basis for the Admission of

Expert Testimony on False

Confessions, 40 Ariz. St. L.J. 1 (2008) ................... 3

vi

TABLE OF AUTHORITIES—Continued

Page(s)

Clare, Isabel C. H. & Gisli H.

Gudjonsson, The Vulnerability of

Suspects with Intellectual

Disabilities During Police Interviews,

8 Mental Handicap Res. 110 (1995) .................... 26

Colwell, Lori H., et al., The Influence of

Psychosocial Maturity on Male

Juvenile Offenders’ Comprehension

and Understanding of the Miranda

Warning, 33 J. of Am. Acad. of Psychiatry & L. 444 (2005) .................................. 26, 27

Drizin, Steven A. & Richard A. Leo, The

Problem of False Confessions in the

Post-DNA World, 82 N.C. L. Rev. 891

(2004) ............................................................ passim

Feld, Barry C., Police Interrogation of

Juveniles: An Empirical Study of

Policy and Practice, 97 J. Crim. L. &

Criminology 219 (2006) ........................................ 24

Garrett, Brandon L., The Substance of

False Confessions, 62 Stan. L. Rev.

1051 (2010) ............................................................. 3

Gogtay, Nitin, et al., Dynamic Mapping

of Human Cortical Development

During Childhood Through Early

Adulthood, 101 Proc. Nat’l Acad. Sci.

8174 (2004) ........................................................... 21

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Goldberg, Elkhonon, The Executive

Brain: Frontal Lobes and the

Civilized Mind (2001) .......................................... 21

Grisso, Thomas, et al., Juveniles’

Competence to Stand Trial: A

Comparison of Adolescents’ and

Adults’ Capacities as Trial

Defendants, 27 L. & Hum. Behav.

333 (2003) ....................................................... 23, 27

Gross, Samuel R. & Michael Shaffer,

Exoneration in the United States,

1989–2012: Report by the National

Registry of Exonerations .................................. 5, 16

Gudjonsson, Gisli H., et al., Custodial

Interrogation, False Confession, and

Individual Differences: A National

Study Among Icelandic Youth, 41

Personality & Individual Differences

49 (2006) ............................................................... 18

Gudjonsson, Gisli H., et al.,

Interrogation and False Confessions

Among Adolescents in Seven

European Countries, 15 Psychol.

Crime & L. 711 (2009) ................................... 17, 18

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Gudjonsson, Gisli H., The Effects of

Intelligence and Memory on Group

Differences in Suggestibility and

Compliance, 12 Personality & Individual Differences 503 (1991) .............................. 27

Gudjonsson, Gisli H., The Psychology of

Interrogations and Confessions: A

Handbook (Graham Davies & Ray

Bull eds. 2003)................................................ 22, 27

Henkel, Linda A., et al., A Survey of

People’s Attitudes and Beliefs About

False Confessions, 26 Behav. Sci. &

L. 555 (2008)........................................................... 3

Kassin, Saul M. & Karlyn McNall,

Police Interrogations and

Confessions: Communicating

Promises and Threats By Pragmatic

Implication, 15 L. & Hum. Behav.

233 (1991) ................................................... 9, 10, 14

Kassin, Saul M., et al., On the General

Acceptance of Confessions Research:

Opinions of the Scientific

Community, 73 Am. Psychologist 63

(2018) .......................................................... 4, 10, 14

ix

TABLE OF AUTHORITIES—Continued

Page(s)

Kassin, Saul M., et al., Police-Induced

Confessions: Risk Factors and

Recommendations, 34 L. & Hum. Behav. 3 (2010) ................................................. passim

Kassin, Saul M., False Confessions,

WIREs Cognitive Sci. 1 (2017) ...................... 18, 25

Kassin, Saul M., The Psychology of

Confession Evidence, 52 Am. Psychologist 221 (1997) ............................................... 9

Kassin, Saul M., The Social Psychology

of False Confessions: Compliance,

Internalization, and Confabulation,

7 Psychol. Sci. 125 (1996) .................................... 10

Klaver, Jessica R., et al., Effects of

Personality, Interrogation

Techniques and Plausibility in an

Experimental False Confession

Paradigm, 13 Legal & Crim. Psychol. 71 (2008) ...................................................... 12

Koocher, Gerald P., Different Lenses:

Psycho-Legal Perspectives on

Children’s Rights, 16 Nova L. Rev.

711 (1992) ............................................................. 24

x

TABLE OF AUTHORITIES—Continued

Page(s)

Leo, Richard A., Interrogation and

Confessions, in Reforming Criminal

Justice 233 (2015) .......................................... 23, 24

Malloy, Lindsay C., et al.,

Interrogations, Confessions, and

Guilty Pleas Among Serious

Adolescent Offenders, 38 L. & Hum.

Behav. 181 (2014)................................................. 18

Nash, Robert A. & Kimberley A. Wade,

Innocent But Proven Guilty: Eliciting

Internalized False Confessions Using

Doctored-Video Evidence, 23 Applied

Cognitive Psychol. 624 (2008).............................. 11

Redlich, Allison D. & Gail S. Goodman,

Taking Responsibility for an Act Not

Committed: The Influence of Age and

Suggestibility, 27 L. & Hum. Behav.

141 (2003) ....................................................... 17, 24

Rogers, Richard, et al., Mired in

Miranda Misconceptions: A Study of

Legally Involved Juveniles at

Different Levels of Psychosocial

Maturity, 32 Behav. Sci. & L. 104

(2014) .............................................................. 22, 23

xi

TABLE OF AUTHORITIES—Continued

Page(s)

Russano, Melissa B., et al.,

Investigating True and False

Confessions Within a Novel

Experimental Paradigm, 16 Psychol.

Sci. 481 (2005) ...................................................... 13

Schatz, Samson J. Note, Interrogated

with Intellectual Disabilities: The

Risks of False Confession, 70 Stan.

L. Rev. 643 (2018) ................................................ 25

Steinberg, Laurence & Elizabeth Scott,

Less Guilty by Reason of Adolescence:

Developmental Immaturity,

Diminished Responsibility, and the

Juvenile Death Penalty, 58 Am. Psychologist 1009 (2003) ........................................... 19

Steinberg, Laurence, A Behavioral

Scientist Looks at the Science of

Adolescent Brain Development, 72

Brain & Cognition 160 (2010)........................ 20, 21

Steinberg, Laurence, et al., Age

Differences in Future Orientation

and Delay Discounting, 80 Child

Dev. 28 (2009) ...................................................... 20

Steinberg, Laurence, Should the Science

of Adolescent Brain Development

Inform Public Policy?, 64 Am. Psychologist 739 (2009) ............................................. 24

xii

TABLE OF AUTHORITIES—Continued

Page(s)

Tepfer, Joshua A., et al., Arresting

Development: Convictions of Innocent

Youth, 62 Rutgers L. Rev. 887 (2010) ................. 16

Wahlstrom, Dustin, et al.,

Developmental Changes In

Dopamine Neurotransmission in

Adolescence, 72 Brain & Cognition

146 (2010) ............................................................. 20

Wynbrandt, Katie, Comment, From

False Evidence Ploy to False Guilty

Plea: An Unjustified Path to

Securing Convictions, 126 Yale. L.J.

545 (2016) ............................................................... 4

1

INTERESTS OF AMICI CURIAE 1

The American Psychological Association is the

leading association of psychologists in the United

States. A non-profit scientific and professional organization, the Association has approximately 115,000

members and affiliates. The Association has an institutional interest in increasing and disseminating

knowledge regarding human behavior, and fostering

the application of psychological learning to important

human concerns.

The American Psychiatric Association, with more

than 37,800 members, is the nation’s leading organization of physicians who specialize in psychiatry.

Members of the Association are physicians engaged in

treatment, research, and forensic activities, and many

members regularly perform roles in the criminal justice system.

The American Academy of Psychiatry and the

Law (“AAPL”), with more than 1,900 psychiatrist

members, is the leading national organization of physicians who specialize in forensic psychiatry. AAPL is

dedicated to excellence in practice, teaching, and research in forensic psychiatry.

AAPL members

1 Pursuant to Rule 37.6, amici affirm that no counsel for a party

authored this brief in whole or in part, and that no person other

than amici or their counsel made any monetary contributions intended to fund the preparation or submission of this brief. The

parties were timely notified of the intent to file this brief and

consented to its filing.

2

evaluate defendants in all aspects of the criminal justice system, adhere to the principle of honesty, and

strive for objectivity.

The National Association of Social Workers

(“NASW”) is a professional membership organization

with approximately 120,000 social workers in chapters in fifty states, the District of Columbia, Puerto

Rico, U.S. Virgin Islands, and Guam. Since 1955,

NASW has worked to develop high standards of social

work practice while unifying the social work profession.

NASW promulgates professional policies,

conducts research, publishes professional studies and

books, provides continuing education, and enforces

the NASW Code of Ethics.

Amici and their members have developed extensive research in areas that are central to this dispute,

including on false confessions, juveniles, and individuals with low intelligence. For example, the American

Psychological Association’s Division 41 (American

Psychology-Law Society) has published a comprehensive analysis of research on confessions. 2 And the

Association’s Council of Representatives has adopted

a “Resolution on Interrogations of Criminal Suspects,”

to draw attention to the problem of false confessions

and wrongful convictions. 3 Similarly, the American

Psychiatric Association has drawn attention to the importance of juvenile justice reform based on advances

2 Saul M. Kassin et al., Police-Induced Confessions: Risk Factors

and Recommendations, 34 L. & Hum. Behav. 3 (2010).

3 American Psychological Association, Resolution on Interroga-

tions of Criminal Suspects (2014).

3

in the neurobehavioral understanding of adolescent

development. 4

The above organizations have frequently filed

briefs as amici curiae, including briefs that have been

cited by this Court. See, e.g., Moore v. Texas, 137 S.

Ct. 1039, 1051 (2017); Hall v. Florida, 134 S. Ct. 1986,

1994–95, 2000–01 (2014). However, their participation at the certiorari stage is rare. Amici have chosen

to support the petition in this case because the opinion

below is contrary to decades of research that confirms

this Court’s clearly established precedent on voluntariness.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Judges and jurors harbor the stubborn belief that

“innocent people do not confess.” 5 People often find it

difficult to fathom that an innocent person would

falsely confess to a crime, absent physical force. 6 Indeed, a false confession can contain suggestions of

veracity, including non-public details about the crime.

4 See American Psychiatric Association, Position Statement on

Trial and Sentencing of Juveniles in the Criminal Justice System

(July 2016).

5 See, e.g., Iris Blandón–Gitlin et al., Jurors Believe Interrogation

Tactics Are Not Likely to Elicit False Confessions, 17 Psychol.

Crime & L. 239, 256 (2011).

6 See Danielle E. Chojnacki et al., An Empirical Basis for the Ad-

mission of Expert Testimony on False Confessions, 40 Ariz. St.

L.J. 1, 32 (2008); Linda A. Henkel et al., A Survey of People’s Attitudes and Beliefs About False Confessions, 26 Behav. Sci. & L.

555, 578 (2008).

4

But such details can become known to the individual

before or during the interrogation through secondhand exposure to facts about the crime and other techniques. 7

The fact is that there are individuals who confess

to crimes that they did not commit. Among the first

347 exonerations in the United States that were based

on DNA evidence, false confessions contributed to 28%

of those wrongful convictions. 8 Among 1,927 cases in

the National Registry of Exonerations, 13% of those

wrongfully convicted had falsely confessed. 9 And “the

overwhelming majority of false confessions . . . occur

in murder cases.” 10

7 See Brandon L. Garrett, The Substance of False Confessions, 62

Stan. L. Rev. 1051, 1053 (2010); Sara C. Appleby et al., PoliceInduced Confessions: An Empirical Analysis of Their Content

and Impact, 19 Psychol. Crime & L. 111, 116 (2013).

8 Saul M. Kassin et al., On the General Acceptance of Confessions

Research: Opinions of the Scientific Community, 73 Am. Psychologist 63, 63 (2018).

9 Id. Compared to others who are wrongfully convicted, false confessors may also be more likely to plead guilty, thereby

increasing barriers to appeal. Katie Wynbrandt, Comment,

From False Evidence Ploy to False Guilty Plea: An Unjustified

Path to Securing Convictions, 126 Yale. L.J. 545, 553 (2016).

Thus, exonerations data may underrepresent the prevalence of

false confessions.

10 Steven A. Drizin & Richard A. Leo, The Problem of False Confessions in the Post-DNA World, 82 N.C. L. Rev. 891, 946 (2004)

(81% of 125 proven false confessions occurred in homicide cases).

5

False confessions are highly likely to be involuntary, as this Court has acknowledged. 11 Indeed, “[t]he

primary reason that innocent defendants confess is

that they are coerced into doing so.” 12

Decades of psychological research demonstrate

that certain techniques, known as maximization (exaggerating or fabricating the strength of evidence

against the accused) and minimization (downplaying

the seriousness of an offense through reassurance or

excuses), are psychologically coercive. These techniques, both of which were used in the interrogation

of petitioner Brendan Dassey, increase the rate of confessions that turn out to be false. See infra section I.

The risk of involuntary false confessions is of particular concern in cases involving juveniles. 13 Studies

11 See, e.g., J.D.B. v. North Carolina, 564 U.S. 261, 269 (2011)

(citing risk of false confession as frequent consequence of coercion); Jackson v. Denno, 378 U.S. 368, 385–86 (1964) (instructing

that due process “forbids the use of involuntary confessions [in

part] because of the probable unreliability of confessions that are

obtained in a manner deemed coercive”); Blackburn v. Alabama,

361 U.S. 199, 207 (1960) (considering “the unreliability of the

confession” in evaluating voluntariness).

12 Samuel R. Gross & Michael Shaffer, Exoneration in the United

States, 1989–2012: Report by the National Registry of Exonerations, at 57 (reporting that 60% of false confessions [82 out of 135]

were “clearly coerced”), https://www.law.umich.edu/special/exoneration/Documents/exonerations_us_1989_2012_full_report.pdf.

This brief uses the terms “juvenile” and “adolescent” interchangeably to refer to individuals aged 12 to 17. Similarly, the

research discussed in this brief applies to adolescents under age

18, including older adolescents, unless otherwise noted.

13

6

based on real-world and experimental data demonstrate conclusively that juveniles—because they lack

mature judgment and are especially vulnerable to

pressure—are far more likely than adults to make

false confessions. See infra section II. Research

demonstrates the same tendency in individuals with

intellectual deficits, for similar but distinct reasons.

In particular, individuals with low intelligence have

high suggestibility as well as difficulty comprehending legal rights and consequences, both of which

render them especially vulnerable to making false

confessions under pressure of coercive questioning.

See infra section III. Research confirms that “[i]n any

discussion of dispositional risk factors for false confession, the two most commonly cited concerns are a

suspect’s age . . . and mental impairment.” 14

This Court recognized these precise risks of coercion decades ago. In 1966, the Court made clear that

“coercion can be mental as well as physical, and that

the blood of the accused is not the only hallmark of an

unconstitutional inquisition.” Miranda v. Arizona,

384 U.S. 436, 448 (1966) (quoting Blackburn v. Alabama, 361 U.S. 199, 206 (1960)). The Court also

identified types of interrogation techniques that may

“undermine[] [the] will to resist,” and “even give rise

to a false confession.” Id. at 455 & n.24. The Court

highlighted the practice of “posit[ing]” a suspect’s

guilt “as a fact,” as well as the technique of “minimiz[ing] the moral seriousness of [an] offense,” such

as by “cast[ing] blame on the victim or on society.” Id.

at 450.

14 Kassin et al., Police-Induced Confessions, supra note 2, at 19.

7

The Court also established long ago that the voluntariness of a confession, i.e., whether the confession

was given freely or as a result of coercion, depends

upon “the techniques for extracting the statements, as

applied to this suspect.” Miller v. Fenton, 474 U.S.

104, 116 (1985). The Court recognized that juveniles

and individuals with low intelligence are particularly

vulnerable to psychologically manipulative techniques—directing that “the greatest care must be

taken to assure that the admission was voluntary” in

the case of a juvenile, In re Gault, 387 U.S. 1, 55

(1967), and that a suspect’s “mental condition” be

weighed as a “significant factor in the ‘voluntariness’

calculus,” Colorado v. Connelly, 479 U.S. 157, 164

(1986). See also Reck v. Pate, 367 U.S. 433, 442 (1961)

(citing “subnormal intelligence” of youth as basis for

invalidating confession).

Petitioner’s case exemplifies all three of these significant risk factors. Law enforcement officers used

psychologically coercive interrogation techniques

when questioning petitioner, who was a juvenile with

low intelligence. And the purported confession that

resulted from that interrogation “furnished the only

serious evidence supporting his murder conviction.”

See Pet. App. 40a (Wood, C.J., dissenting).

Review is warranted because the opinion below is

contrary to this Court’s clearly established precedent

on voluntariness determinations, as illuminated by

decades of psychological research. And this case is not

unique. Exoneration studies establish that false confessions in jurisdictions around the country are

responsible for an unsettlingly high proportion of

wrongful convictions, and that juveniles and those

8

with low intelligence are overrepresented among

those who are wrongly convicted based on false confessions. Denial of review would have far-reaching

harmful consequences, because it would sanction the

continued widespread misapplication of this Court’s

clear standards on voluntariness determinations. See

Pet. Br. 30–35.

ARGUMENT

I.

Psychological Research Demonstrates That

Certain Interrogation Techniques Are Psychologically Coercive And Increase the Risk

Of False Confessions—Even Among Adults

Psychological research confirms what this Court

recognized in the landmark case of Miranda—that

“coercion can be mental as well as physical.” Miranda

v. Arizona, 384 U.S. 436, 448–455 (1966). The Court

explained that certain interrogation techniques “undermine[] [the] will to resist,” and “may even give rise

to a false confession.” Id. at 448, 455 & n.24.

Research verifies that psychologically coercive

techniques make false confessions more likely. In particular, the Miranda Court noted with disfavor the

practice of “display[ing] an air of confidence in the suspect’s guilt,” which is often “posited as a fact.” Id. at

450. That is a maximization technique. Such techniques often include the use of false evidence, which

studies have linked to false confessions. The Court

also cited disapprovingly the technique of “minimiz[ing] the moral seriousness of [an] offense,” such

as by “cast[ing] blame on the victim or on society.” Id.

9

Numerous studies have demonstrated that minimization techniques also substantially increase the rate of

false confessions. Law enforcement officers used both

techniques during their interrogation of petitioner.

A.

Maximization Techniques, Especially

False Evidence Tactics, Increase the

Risk of False Confessions

Maximization refers to “a cluster of tactics designed to convey the interrogator’s rock-solid belief

that the suspect is guilty and that all denials will

fail.” 15 It may involve “making an accusation, overriding objections, and citing evidence, real or

manufactured, to shift the suspect’s mental state from

confident to hopeless.” 16

Officers repeatedly used maximization techniques

when they interrogated petitioner. For example, the

officers told petitioner: “[W]e know, we reviewed

those tapes . . . . We pretty much know everything

that’s why we’re . . . talking to you again today.” Pet.

App. 15a; see also Pet. App. 65a (collecting more than

twenty similar maximization examples during petitioner’s interrogation).

Research has shown that “maximization communicates an implicit threat of punishment.” 17 In a

15 Kassin et al., Police-Induced Confessions, supra note 2, at 12.

16 Id.

17 Saul M. Kassin, The Psychology of Confession Evidence, 52 Am.

Psychologist 221, 224 (1997). For example, when subjects reviewed transcripts of interrogations that employed maximization

techniques, they expected the interrogated suspect to receive a

10

survey of 87 experts in confessions and interrogations,

94% confirmed that “[p]resentations of false incriminating evidence during interrogation increase the risk

that an innocent suspect [will] confess to a crime he or

she did not commit.” 18

The use of false evidence is a particularly potent

form of maximization directly linked to the risk of

false confessions. In a seminal psychological study

about false confessions, students participated in a

computer typing exercise where each participant was

instructed not to strike a particular keyboard key. 19

Later, when the participant’s computer shut down (as

it was programmed automatically to do), the participant was accused of having caused the crash by

striking the forbidden key. The participant was then

confronted with false evidence of his guilt: An actor

working for the experimenter claimed to have seen the

participant strike the prohibited key. 20 The use of

that “false evidence nearly doubled the number of students who signed a written confession, from 48 to

94%.” 21 Other computer-crash studies have also

harsher sentence. Saul M. Kassin & Karlyn McNall, Police Interrogations and Confessions: Communicating Promises and

Threats By Pragmatic Implication, 15 L. & Hum. Behav. 233, 240

(1991).

18 Kassin et al., General Acceptance, supra note 8, at 70, 72.

19 Saul M. Kassin, The Social Psychology of False Confessions:

Compliance, Internalization, and Confabulation, 7 Psychol. Sci.

125 (1996).

20 Id. at 126.

21 Kassin et al., Police-Induced Confessions, supra note 2, at 17.

11

found high false confession rates caused by the introduction of false evidence, even where the confession

was said to bear a financial consequence. 22

Other paradigms have revealed similar results.

In one study, participants completed a computerized

gambling task, and later were falsely accused of cheating by stealing “money” from a fictional bank. 23 Half

of the participants were told there was a videotape

proving their theft; the other half were shown such a

(doctored) video. 24 Remarkably, after either one or

two requests to do so, all participants in both groups

signed a false confession. 25

In light of the strength and consistency of the research in this area, the American Psychological

Association’s “Resolution on Interrogations of Criminal Suspects” draws special attention to the “risks of

eliciting a false confession by interrogations that involve the presentation of false evidence.” 26

22 See, e.g., Robert Horselenberg et al., Individual Differences

and False Confessions: A Conceptual Replication of Kassin and

Kiechel (1996), 9 Psychol. Crime & L. 1, 5 (2003) (82% of participants signed a false confession, despite being told they would lose

their $10 participation payment).

23 Robert A. Nash & Kimberley A. Wade, Innocent But Proven

Guilty: Eliciting Internalized False Confessions Using DoctoredVideo Evidence, 23 Applied Cognitive Psychol. 624, 625, 627–28

(2008).

24 Id. at 625, 628.

25 Id. at 629–30.

26 American Psychological Association Resolution, supra note 3.

12

B.

Minimization Techniques Increase the

Risk of False Confessions

“[M]inimization tactics are designed to provide

the suspect with moral justification and face-saving

excuses for having committed the crime in question.” 27 An interrogator employing minimization

techniques “offers sympathy and understanding,” or

“normalizes and minimizes the crime.” 28

Officers used minimization techniques on petitioner when they reassured him with warm, fatherly

gestures. See Pet. App. 14a. Officers told him not “to

worry about things,” id., and that he had “done nothing wrong,” Pet. App. 530a.

The officers also

repeatedly told petitioner “it was not his fault,” shifting blame to petitioner’s uncle. See Pet. App. 66a

(collecting several examples).

Minimization undermines a confession’s voluntariness because it frequently operates as a promise of

leniency that “may well lead innocent people who feel

trapped to confess.” 29

One recent study examined minimization in the

context of the computer-crash paradigm discussed

above. 30 Again, participants were accused of causing

27 Kassin et al., Police-Induced Confessions, supra note 2, at 12.

28 Id.

29 Kassin et al., Police-Induced Confessions, supra note 2, at 18.

30 Jessica R. Klaver et al., Effects of Personality, Interrogation

Techniques and Plausibility in an Experimental False Confession

Paradigm, 13 Legal & Crim. Psychol. 71 (2008).

13

their computers to crash by hitting a forbidden key.

But for some participants, the experimenters blamed

the incident on overly sensitive keys, or told the participants not to “worry” because “[i]t was just an

accident.” 31 The participants subjected to these minimization techniques were more likely to sign false

confessions. 32

Another recent study applied a different model

but achieved the same basic result. Students were

partnered with a confederate (an actor working for the

experimenter) for a problem-solving activity, and they

were instructed to work alone for certain problems. 33

For some participants, the confederate asked for help

on problems designed for individualized work, thereby

suggesting that the participant break the rules.

Later, the experimenter claimed that the pair had

suspiciously arrived at the same wrong answer, and

accused the participant of cheating—an act with serious consequences in the university setting. The

participant was then confronted with (1) an explicit

offer of leniency (“things could probably be settled

pretty quickly”); (2) minimization (i.e., a combination

of sympathy and face-saving excuses); (3) neither; or

31 Id. at 77–78.

32 Id. at 81.

33 Melissa B. Russano et al., Investigating True and False Confessions Within a Novel Experimental Paradigm, 16 Psychol. Sci.

481 (2005).

14

(4) both. 34 The explicit promise and the minimization

both increased the rate of false confessions. 35

This Court has cited leniency offers as an indicator of coercion. See Lynumn v. Illinois, 372 U.S. 528,

534 (1963). And in the survey of 87 experts referenced

above, 91% agreed that “[m]inimization tactics that

communicate sympathy and moral justification for a

crime lead people to infer leniency upon confession.” 36

In one study illustrating how minimization communicates leniency, participants read transcripts of

interrogations. 37 In some transcripts, interrogators

explicitly promised the suspects they would receive a

lighter sentence if they confessed. In other transcripts, interrogators used minimization techniques—

for example, blaming the victim or morally excusing

the crime. After reviewing the transcripts, participants were asked how severe they expected the

suspect’s sentence to be in the event of a confession. 38

In general, “subjects expected more lenient sentencing

in both the minimization and promise conditions” as

compared to the control group. In other words, both

minimization and promises communicated leniency. 39

34 Id. at 483.

35 Id. at 484.

36 Kassin et al., General Acceptance, supra note 8, at 69, 70, 72.

37 Kassin & McNall, supra note 17, at 240.

38 Id. at 241.

39 Id.

15

The American Psychological Association’s “Resolution on Interrogations of Criminal Suspects”

specifically warns of “the risks of eliciting a false confession [by interrogations] that involve minimization

‘themes’ that communicate promises of leniency.” 40

II. Psychological Research Supports the Clear

and Longstanding Mandate That Purported

Confessions By Juveniles Be Evaluated With

the “Greatest Care” To Determine Whether

They Were Voluntary or, Rather, the Result

of Coercion

A large body of research in developmental psychology and neuroscience demonstrates the need to

use the greatest care when assessing the voluntariness of inculpatory statements by juveniles. That

research resoundingly confirms this Court’s clearly

established law. Seventy years ago, this Court observed that events that might “leave a man cold and

unimpressed” could “overawe and overwhelm a lad.”

Haley v. Ohio, 332 U.S. 596, 597–99 (1948). The Court

has since warned that “the greatest care must be

taken to assure that [a juvenile’s confession] was voluntary.” In re Gault, 387 U.S. 1, 55 (1967); accord

Gallegos v. Colorado, 370 U.S. 49, 53 (1962) (“special

care . . . must be used”).

This Court has expressly recognized that juveniles are more likely than adults to confess falsely and

against their will. See, e.g., J.D.B. v. North Carolina,

564 U.S. 261, 269 (2011) (noting “troubling” and

“acute” risk of juvenile false confessions). The Court

40 American Psychological Association Resolution, supra note 3.

16

has referenced particular qualities—namely, immaturity and vulnerability—that render adolescents

especially prone to involuntary confession. See, e.g.,

id. at 272–73 (collecting Court’s “commonsense conclusions” about relative immaturity and fragility of

youth in face of police interrogation); see also Montgomery v. Louisiana, 136 S. Ct. 718, 733 (2016) (in

sentencing context, recognizing that juveniles are

“more vulnerable” and subject to immature “risk-taking”) (quoting Miller v. Alabama, 567 U.S. 460, 471

(2012)).

A.

Juveniles Are Far More Likely Than

Adults to Confess Falsely and Against

Their Will

Psychological research establishes conclusively

that juveniles are far more likely than adults to falsely

confess. A survey of 873 exoneration cases from 1989

through 2012 found that roughly 15% of exonerees

had falsely confessed, and that percentage jumped to

42% for juveniles—a nearly three-fold increase. 41

Earlier exoneration studies likewise reported elevated

rates of false confessions among juveniles. 42 One seminal study of 125 false confessions found that juveniles

were significantly over-represented among those who

41 Gross & Shaffer, supra note 12, at 60.

42 See, e.g., Joshua A. Tepfer et al., Arresting Development: Convictions of Innocent Youth, 62 Rutgers L. Rev. 887, 904 (2010)

(31.1% of juvenile exonerees confessed, compared to 17.8% of

adults).

17

had falsely confessed, constituting one-third of false

confessors. 43

Results of research studies are consistent with

these real-world findings. One study applying the

computer-crash paradigm found that false confession

rates varied significantly based on age. When presented with false evidence, 78% of twelve- and

thirteen-year-olds and 72% of fifteen- and sixteenyear-olds confessed in writing that they had “hit the

ALT key and caused the computer to crash,” when

they had not, in fact, done so. But that dropped to 59%

for young adults (aged eighteen to twenty-four). 44

Nearly two-thirds of the twelve- and thirteen-yearolds and nearly one-half of the fifteen- and sixteenyear-olds “simply picked up the pen and signed without saying a word.” 45

“Self-report studies”—which use interviews and

surveys to collect large quantities of data about suspects’ interrogation experiences—also demonstrate

above-average false confession rates for juveniles.

One study gathered information from 23,771 juveniles

in seven European countries. Of those juveniles who

had been interrogated by police, roughly 14% reported

43 Drizin & Leo, supra note 10, at 944.

44 Allison D. Redlich & Gail S. Goodman, Taking Responsibility

for an Act Not Committed: The Influence of Age and Suggestibility, 27 L. & Hum. Behav. 141, 146, 148 (2003).

45 Id. at 151.

18

confessing falsely 46—a rate “substantially higher”

than is found among older individuals. 47 Similarly, of

193 fourteen- to seventeen-year-old males incarcerated in the United States, 17.1% reported giving a

false confession at some point in the past. 48 And an

Icelandic self-report study found that, of roughly

1,900 individuals who had been interrogated by police, 9% of juveniles had falsely confessed, compared

to only 5.7% of young adults. 49

B.

Juveniles Are Prone to False Confession

Because They Lack Mature Judgment

and Are Vulnerable to Pressure

Juveniles are prone to make false confessions for

two primary reasons. First, juveniles’ “lack of maturity,” Montgomery, 136 S. Ct. at 733 (quoting Miller,

567 U.S. at 471), prevents them from understanding

fully the negative consequences of their actions and,

thus, leads them to engage in greater risk-taking behavior. As a result, adolescents are often willing to

pay dearly—in the form of protracted legal proceedings, a criminal record, and prison time—in return for

46 Gisli H. Gudjonsson et al., Interrogation and False Confessions

Among Adolescents in Seven European Countries, 15 Psychol.

Crime & L. 711, 715 (2009).

47 Saul M. Kassin, False Confessions, WIREs Cognitive Sci. 1, 5

(2017).

48 Lindsay C. Malloy et al., Interrogations, Confessions, and

Guilty Pleas Among Serious Adolescent Offenders, 38 L. & Hum.

Behav. 181, 186 (2014).

49 Gisli H. Gudjonsson et al., Custodial Interrogation, False Con-

fession, and Individual Differences: A National Study Among

Icelandic Youth, 41 Personality & Individual Differences 49, 54–

55 (2006).

19

a much less significant but more immediate benefit.

This may induce them to falsely confess. Second, compared to adults, juveniles “are more vulnerable to

negative influences and outside pressures,” Montgomery, 136 S. Ct. at 733 (quoting Miller, 567 U.S. at 471),

which places them at greater risk for making a false

confession.

1.

Immaturity of Judgment

Research establishes that juveniles make decisions differently: “[A]dolescents use a risk-reward

calculus that places relatively less weight on risk, in

relation to reward, than that used by adults.” 50 One

study observed reward-seeking and risk-avoidance behaviors among roughly 900 individuals, ranging from

10 to 30 years old, as they engaged in a gambling exercise. 51 While adolescents were drawn to bets with

the best rewards, adults sought to avoid the worst

losses. Researchers concluded that “[w]hereas adolescents may attend more to the potential rewards of a

risky decision than to the potential costs, adults tend

50 Laurence Steinberg & Elizabeth Scott, Less Guilty by Reason

of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty, 58 Am. Psychologist

1009, 1012 (2003); see also Jeffrey Arnett, Reckless Behavior in

Adolescence: A Developmental Perspective, 12 Developmental

Rev. 339, 350–53 (1992) (summarizing evidence that adolescent

recklessness relates to poor “probability reasoning”).

51 Elizabeth Cauffman et al., Age Differences in Affective Decision

Making as Indexed by Performance on the Iowa Gambling Task,

46 Developmental Psychol. 193, 193 (2010).

20

to consider both, even weighing costs more than rewards.” 52

More specifically, juveniles are attuned to immediate rewards, exhibiting much steeper “temporal

discounting” than adults. 53 The converse is also true:

Adolescents generally struggle to envision and plan

for consequences that are not immediate. 54 One study

compared more than 1,000 subjects and found that 17year-olds scored lower than adults on measures of

“perspective,” which included “the ability to see short

and long term consequences.” 55

Neuroscience research is consistent with the

above findings, and suggests a possible physiological

basis for juveniles’ skewed preference for immediate

reward. Early adolescence coincides with major

changes in the brain’s incentive processing system,

which involves neurotransmitters like dopamine. 56

These changes have been tied to “reward-directed activity” among adolescents, especially the willingness

52 Id. at 204, 206.

53 Laurence Steinberg et al., Age Differences in Future Orienta-

tion and Delay Discounting, 80 Child Dev. 28, 40–41 (2009).

54 See Jari-Erik Nurmi, How Do Adolescents See Their Future? A

Review of the Development of Future Orientation and Planning,

11 Dev. Rev. 1, 28–29 (1991).

55 Elizabeth Cauffman & Laurence Steinberg, (Im)maturity of

Judgment in Adolescence: Why Adolescents May Be Less Culpable Than Adults, 18 Behav. Sci. & L. 741, 748, 754 & tbl. 4 (2000).

56 See, e.g., Dustin Wahlstrom et al., Developmental Changes In

Dopamine Neurotransmission in Adolescence, 72 Brain & Cognition 146, 150–151 (2010).

21

to engage in risky behavior. 57 During adolescence and

well into early adulthood, the brain undergoes physical changes that permit better cost-benefit decisionmaking—including synaptic “pruning” and myelination (the insulation of neural pathways with fatty

tissue called myelin). 58

Juveniles’ strong preference for immediate benefit—even at serious long-term cost—contributes to

their tendency to falsely confess. It is well understood

that “compliant [i.e., coerced] false confessions” generally result from a suspect’s desire “to escape a

stressful situation, avoid punishment, or gain a promised or implied reward,” usually based on the belief

“that the short-term benefits of confession relative to

denial outweigh the long-term costs.” 59 Surveying

cases, one researcher has specifically noted the following examples of “instrumental gain” that are often

sufficient to induce false confessions, including among

adults: ending the interview; visits from family; and

57 Laurence Steinberg, A Behavioral Scientist Looks at the Science of Adolescent Brain Development, 72 Brain & Cognition 160,

161 (2010).

58 On the process of pruning, see Nitin Gogtay et al., Dynamic

Mapping of Human Cortical Development During Childhood

Through Early Adulthood, 101 Proc. Nat’l Acad. Sci. 8174, 8178

(2004). On the myelination process, see Elkhonon Goldberg, The

Executive Brain: Frontal Lobes and the Civilized Mind 23, 144

(2001).

59 Kassin et al., Police-Induced Confessions, supra note 2, at 14.

22

being released from custody to attend to basic physiological needs, such as to feed a drug habit. 60

The above cost-benefit decision-making principles

apply to all interrogation subjects, regardless of age.

But the “impulsive tendenc[y]” to accept heavy costs

(e.g., prison time) in return for paltry rewards (e.g.,

ending the interview) is “especially evident in juvenile

populations.” 61 The authors of a seminal false confessions study observed that “one of the most common

reasons [for confessing] cited by teenage false confessors is the belief that by confessing, they would be able

to go home.” 62

Petitioner is a classic illustration of this phenomenon.

After providing the interrogators with

inculpatory statements, petitioner asked about returning to his sixth period at school because he was

concerned about a class assignment. See Pet. App.

18a.

Juveniles also lack knowledge of what the future

consequences are likely to be. One recent study concluded that “juveniles, irrespective of their maturity

levels, appear mired in Miranda misconceptions,”

based on findings that “82.8% [of 64 juvenile study

60 Gisli H. Gudjonsson, The Psychology of Interrogations and

Confessions: A Handbook 121, 195–96 (Graham Davies & Ray

Bull eds. 2003), available at http://www.al-edu.com/wp-content/uploads/2014/05/Gudjonsson-The-Psychology-ofInterrogations-and-Confessions.pdf.

61 Kassin et al., Police-Induced Confessions, supra note 2, at 15.

62 Drizin & Leo, supra note 10, at 969.

23

participants] exhibit[ed] 10 or more erroneous beliefs

that could potentially compromise their decisions regarding their Miranda rights.” 63 Another study

evaluated 927 juveniles and 466 young adults using a

standard measure of competence to stand trial. 64 On

a metric designed to gauge comprehension of legal

rights and procedures, “11- to 13-year-olds performed

significantly worse than the 14- to 15-year-olds, who

performed significantly worse than” older age

groups. 65

2.

Vulnerability to Pressure

Research establishes that adolescents are more

susceptible than adults to external pressures and negative environmental influences, which can lead to

false confessions. Juveniles are “more easily intimidated by police power, persuasion, or coercion,” and

“less likely to possess the psychological resources to

resist the pressures of accusatorial police questioning.” 66 They are “more easily pressured, manipulated,

Richard Rogers et al., Mired in Miranda Misconceptions: A

Study of Legally Involved Juveniles at Different Levels of Psychosocial Maturity, 32 Behav. Sci. & L. 104, 116 (2014).

63

64 Thomas Grisso et al., Juveniles’ Competence to Stand Trial: A

Comparison of Adolescents’ and Adults’ Capacities as Trial Defendants, 27 L. & Hum. Behav. 333 (2003).

65 Id. at 339–40, 343.

66 Drizin & Leo, supra note 10, at 944.

24

and persuaded to make or agree to false statements.” 67

Neuroscience research demonstrates that adolescents are less equipped to manage heightened

emotions, like fear: “[W]ell into late adolescence”

there is “an increase in connections not only among

cortical areas but between cortical and subcortical regions,” which is “especially important for emotion

regulation.” 68 The vulnerability of youth also has a

social component. Research has confirmed that requests from adults can be interpreted by children as

commands. 69 And, “expectations of obedience to authority and children’s lower social status make them

more vulnerable than adults during interrogation.” 70

The computer-crash study referenced above measured the relationship between false confession rates

and suggestibility—i.e., a form of vulnerability that

measures how likely one is to accept suggestions of

another, such as through leading questions. 71 The

67 Richard A. Leo, Interrogation and Confessions, in Reforming

Criminal Justice 233, 248 (2015), available at http://academyforjustice.org/wp-content/uploads/2017/10/9_Reforming-CriminalJustice_Vol_2_Interrogation-and-Confessions.pdf.

68 Laurence Steinberg, Should the Science of Adolescent Brain

Development Inform Public Policy?, 64 Am. Psychologist 739, 743

(2009).

69 Gerald P. Koocher, Different Lenses: Psycho-Legal Perspectives

on Children’s Rights, 16 Nova L. Rev. 711, 715–16 (1992).

70 Barry C. Feld, Police Interrogation of Juveniles: An Empirical

Study of Policy and Practice, 97 J. Crim. L. & Criminology 219,

230 (2006).

71 Redlich & Goodman, supra note 44, at 143.

25

study found that “[p]articipants who were more likely

to yield to misleading questions were also more likely

to sign” a written confession. 72 In other words, because adolescents are more likely to be suggestible,

they may be more vulnerable to false confession. 73

III. Research Confirms That Individuals With

Low Intelligence Are At Higher Risk For

False Confession

A recent in-depth analysis of 245 exonerations involving false confessions determined that 25.7% of

false confessors showed “indicia of intellectual disability”—a figure significantly greater than the estimated

1% to 3% of such individuals in the general population. 74 Earlier exoneration studies similarly found

that the intellectually disabled are overrepresented

among populations of false confessors. 75

72 Id. at 149, 151.

73 See Kassin, False Confessions,

supra note 47, at 3 (connecting

youth and suggestibility as risk factors for false confession).

74 Samson J. Schatz, Note, Interrogated with Intellectual Disabil-

ities: The Risks of False Confession, 70 Stan. L. Rev. 643, 681–82

(2018).

75 See, e.g., Drizin & Leo, supra note 10, at 920 n.155 (noting that

“at least 22% (27/125) of the proven false confessors in our study

were mentally retarded,” a “figure [that] surely underestimates

the actual percentage,” since IQ records were often unavailable).

26

Research in psychology shows that individuals

with low intelligence—like petitioner 76—are prone to

falsely confess for two main reasons.

First, due to the cognitive deficits of individuals

with low intelligence, such individuals struggle and

often fail to comprehend legal rights and consequences. For example, after watching a fictional

interrogation video, 38% of participants with low IQs

(ranging from 60 to 75) thought the suspect would be

allowed to go home to await trial, compared to 5% of

those with average intelligence. Only 52% of low-IQ

participants thought the suspect should obtain legal

advice if innocent, compared to 90% in the average intelligence group. 77

The connection between low intelligence and low

comprehension of legal rights is well-documented

among juveniles. Numerous studies have demonstrated that both “age and intelligence [are]

76 Petitioner had “received special education services, and [his]

IQ had been measured at various times between 74 and 81”—

well below the 100 average—but he was not diagnosed as intellectually disabled. Pet. App. 75a. Intellectual disability, the

preferred term for what was formerly called “mental retardation,” is a diagnosis with three criteria, one of which is

“significantly subaverage intellectual functioning.” Hall v. Florida, 134 S. Ct. 1986, 1994 (2014) (outlining criteria for

intellectual disability).

77 Isabel C. H. Clare & Gisli H. Gudjonsson, The Vulnerability of

Suspects with Intellectual Disabilities During Police Interviews,

8 Mental Handicap Res. 110, 120–21 (1995).

27

associated with adolescents’ understanding of the Miranda warning.” 78 One study that evaluated more

than 900 juveniles across the United States found

that “juveniles of below-average intelligence are more

likely than juveniles of average intelligence” to have

diminished understandings of legal rights. 79

Second, individuals with low intelligence are more

likely to falsely confess because they tend to be more

suggestible in the face of leading questions. There is

a “significantly negative relationship between interrogative suggestibility and intellectual functioning,”

such that “subjects with IQs well below average . . .

tend to be markedly more suggestible.” 80 That tendency has been linked to false confessions. In a study

of three groups—alleged false confessors, alleged true

confessors, and resisters (i.e., those who had never

confessed)—alleged false confessors had the lowest

IQs and highest suggestibility scores. 81

This wealth of psychological research demonstrates the higher risk of false confessions from

persons with limited intellectual capability. And it is

consistent with this Court’s repeated observation of

the low intelligence of an accused when invalidating a

78 Lori H. Colwell et al., The Influence of Psychosocial Maturity

on Male Juvenile Offenders’ Comprehension and Understanding

of the Miranda Warning, 33 J. of Am. Acad. of Psychiatry & L.

444, 451 (2005).

79 Grisso et al., supra note 64, at 356.

80 Gudjonsson, The Psychology of Interrogations, supra note 60,

at 382.

81 Gisli H. Gudjonsson, The Effects of Intelligence and Memory on

Group Differences in Suggestibility and Compliance, 12 Personality & Individual Differences 503, 504 (1991).

28

confession as involuntary. See, e.g., Culombe v. Connecticut, 367 U.S. 568, 620 (1961); Reck v. Pate, 367

U.S. 433, 443 (1961); Payne v. Arkansas, 356 U.S. 560,

562 n.4, 567 (1958); Fikes v. Alabama, 352 U.S. 191,

196 (1957).

CONCLUSION

For the reasons set forth above and in the petition,

the Court should grant the petition for a writ of certiorari.

Respectfully submitted,

Nathalie F.P. Gilfoyle

Deanne Marie Ottaviano

AMERICAN PSYCHOLOGICAL

ASSOCIATION

750 First Street, NE

Washington, DC 20002

(202) 336-5500

Beth S. Brinkmann

Counsel of Record

Megan A. Crowley

Daniel G. Randolph

COVINGTON & BURLING LLP

One CityCenter

850 Tenth Street, NW

Washington, DC 20001

bbrinkmann@cov.com

(202) 662-6000

Additional Counsel Listed on Inside Cover

March 26, 2018