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Challenges in defining and identifying a suspect's vulnerability in criminal proceedings: What's in a name and who's to blame?
... At the same time, I intend to look at the temporal stability of case evaluations obtained by means of the ACH method. and academic literature (Mergaerts & Dehaghani, 2020;Mergaerts et al., 2018). First, at the EU-level, several adopted Directives focusing on strengthening procedural safeguards (e.g., the right to interpretation and translation, the right to information, the right of access to a lawyer) for all suspects include a provision that the special needs of vulnerable persons must be considered by Second, on the one hand, the ECtHR case law has stressed that suspect vulnerability may stem from merely being involved as a suspect in criminal proceedings (e.g., ECtHR, 2008a), while on the other hand it also considers a number of relevant factors that may render a suspect 'particular vulnerable', such as being a juvenile, having chronic alcoholism and/or an acute alcohol intoxication, having a physical disability or medical condition, belonging to a socially disadvantaged group, and/or having a mental disorder (e.g., ECtHR, 1999;ECtHR, 2008b;ECtHR, 2009;ECtHR, 2010a;ECtHR, 2010b;ECtHR, 2011;ECtHR, 2016aECtHR, , 2016bMergaerts & Dehaghani, 2020;Mergaerts et al., 2018). ...
... and academic literature (Mergaerts & Dehaghani, 2020;Mergaerts et al., 2018). First, at the EU-level, several adopted Directives focusing on strengthening procedural safeguards (e.g., the right to interpretation and translation, the right to information, the right of access to a lawyer) for all suspects include a provision that the special needs of vulnerable persons must be considered by Second, on the one hand, the ECtHR case law has stressed that suspect vulnerability may stem from merely being involved as a suspect in criminal proceedings (e.g., ECtHR, 2008a), while on the other hand it also considers a number of relevant factors that may render a suspect 'particular vulnerable', such as being a juvenile, having chronic alcoholism and/or an acute alcohol intoxication, having a physical disability or medical condition, belonging to a socially disadvantaged group, and/or having a mental disorder (e.g., ECtHR, 1999;ECtHR, 2008b;ECtHR, 2009;ECtHR, 2010a;ECtHR, 2010b;ECtHR, 2011;ECtHR, 2016aECtHR, , 2016bMergaerts & Dehaghani, 2020;Mergaerts et al., 2018). ...
... In contrast, academic research focuses on innocent suspects who are at risk of providing invalid statements due to certain situational or individual factors. Clearly some 'degrees of vulnerability' can be observed ranging from a rather general vulnerability (i.e., stemming from the mere fact that one is involved in a criminal procedure), to a heightened vulnerability (i.e., when the suspect is detained and questioned), or to a particular vulnerability (i.e., where personal or psychological factors are at stake; seeMergaerts et al., 2018). ...
Both case law of the European Court of Human Rights and EU legal instruments on the one hand, and academic legal psychological literature on the other, recognise the specific needs of so-called vulnerable suspects in criminal proceedings. In this regard, the important role of the criminal defence lawyer in compensating for a suspect’s vulnerability is emphasised, especially because vulnerable persons require special care to understand their legal rights and to improve the quality of their statements. Consequently, defence lawyers must be aware early on in proceedings whether their clients can be qualified as vulnerable in order to adequately deal with this presumed vulnerability. In practice, determining early on whether or not a client is vulnerable is a challenging task. Drawing from a legal theoretical and qualitative empirical analysis, this article outlines how Belgian defence lawyers perceive and identify suspect vulnerability in the early stages of a criminal investigation.
This article presents a new model of confessions referred to as the interrogation decision-making model. This model provides a theoretical umbrella with which to understand and analyze suspects’ decisions to deny or confess guilt in the context of a custodial interrogation. The model draws upon expected utility theory to propose a mathematical account of the psychological mechanisms that not only underlie suspects’ decisions to deny or confess guilt at any specific point during an interrogation, but also how confession decisions can change over time. Findings from the extant literature pertaining to confessions are considered to demonstrate how the model offers a comprehensive and integrative framework for organizing a range of effects within a limited set of model parameters.
Recently, in a number of high-profile cases, defendants who were prosecuted, convicted, and sentenced on the basis of false confessions have been exonerated through DNA evidence. As a historical matter, confession has played a prominent role in religion, in psychotherapy, and in criminal law-where it is a prosecutor's most potent weapon. In recent years, psychologists from the clinical, personality, developmental, cognitive, and social areas have brought their theories and research methods to bear on an analysis of confession evidence, how it is obtained, and what impact it has on judges, juries, and other people.
This article focuses on an expanding role for social workers conducting assessments of competency to stand trial. This pretrial assessment is the most common form of pretrial forensic evaluations. Although a handful of states explicitly allow social workers to conduct these evaluations, it is suggested that this is a role in which social workers could have a greater role as the field of forensic social work develops. It is suggested that this role can be enhanced through the development of forensic specialty guidelines. The article reviews competency laws and assessment procedures and provides an overview of forensic assessment instruments that can be used in the evaluation of competency to stand trial. The special circumstances surrounding evaluations of competency in juvenile court are also examined.
Objectives: We completed a systematic review and meta-analysis of the available empirical literature assessing the influence of accusatorial and information-gathering methods of interrogation in eliciting true and false confessions.
Methods: We conducted two separate meta-analyses. The first meta-analysis focused on observational field studies that assessed the association between certain interrogation methods and elicitation of a confession statement. The second meta-analysis focused on experimental, laboratory-based studies in which ground truth was known (i.e., a confession is factually true or false). We located 5 field studies and 12 experimental studies eligible for the meta-analyses. We coded outcomes from both study types and report mean effect sizes with 95 % confidence intervals. A random effects model was used for analysis of effect sizes. Moderator analyses were conducted when appropriate.
Results: Field studies revealed that both information-gathering and accusatorial approaches were more likely to elicit a confession when compared with direct questioning methods. However, experimental studies revealed that the information-gathering approach preserved, and in some cases increased, the likelihood of true confessions, while simultaneously reducing the likelihood of false confessions. In contrast, the accusatorial approach increased both true and false confessions when compared with a direct questioning method.
Conclusions: The available data support the effectiveness of an information-gathering style of interviewing suspects. Caution is warranted, however, due to the small number of independent samples available for the analysis of both field and experimental studies. Additional research, including the use of quasi-experimental field studies, appears warranted.
In a recent press release of the 27th of November 2013, the European Commission presented a package of five proposals to further strengthen procedural safeguards for citizens in criminal proceedings. Two of these proposals directly stem from the Council Procedural Roadmap's Measure E on the (need for) special safeguards for suspected or accused persons who are vulnerable. Whereas the roadmap envisions improved attention for a vulnerable subject regardless of the origins of this vulnerability – be it due to age, mental or physical condition – the recent proposals indicate a clear differentiation between vulnerability based on the defendant's age on the one hand, and the (adult) defendant's mental or physical capacities on the other hand. As such, a proposal for a Directive for procedural safeguards for children was presented, whereas adult defendants in criminal proceedings had to be satisfied with a non-binding Recommendation. While it may indeed be defended that an accumulation of these sources for diminished capacity is not preferable, the Commission's approach and underlining rationale seem equivocal. This article observes these recent initiatives from a dual viewpoint. First of all, they are looked at against the backdrop of the ongoing debate vis-à-vis mutual recognition and the introduction of auxiliary procedural safeguards. The article, therefore, critically assesses the supposed link between the introduction of minimum procedural standards for a category of defendants which, precisely due to their vulnerability, seems less capable of being involved in criminal proceedings with a cross-border dimension. With the latter still the raison d'être for the mutual recognition principle and the basis for the EU to establish minimum rules, the article argues that the EU drifts further away from its Treaty based competence. Secondly, the Commission's reasoning and subsequent policy choice to divide vulnerability based on the defendant's age is analysed with respect to the indications coming from European policy makers and scholars alike. Without aiming to promote a viewpoint of vulnerability where one cause is hierarchically decisive over the other, the article makes a case for an (equally) adequate instrument for defendants with a mental disorder in criminal proceedings.
Presents a model to illustrate how characteristics of a suspect and case have a bearing on interviewing styles and on suspect behavior. A sample of 1,067 cases from 9 police stations was used to determine a link between case characteristics and the behavior of suspects and which characteristics are associated with admissions and denials. Three case characteristics had a bearing on the outcome of the interviews: strength of evidence, severity of offense, and legal advice. Different interviewing strategies did not affect the number of confessions, thus supporting the arguments in favor of a more information gathering and nonmanipulative approach to questioning rather than an overtly persuasive approach in which success is defined in terms of admissions obtained. (PsycINFO Database Record (c) 2013 APA, all rights reserved)
Intellectual Disabilities (ID) and Attention Deficit Hyperactivity Disorder (ADHD) are recognized psychological vulnerabilities in police interviews and court proceedings in England and Wales. The aims of this study were to investigate: (a) the prevalence of ID and/or ADHD among suspects detained at a large London metropolitan police station and their relationship with conduct disorder (CD), (b) the impact of their condition on police staff resources, (c) the effectiveness of current custody assessment tools in identifying psychological vulnerabilities, and (d) the use of 'Appropriate Adults' in interviews.
A total of 200 individuals in a police custody suite were interviewed and screened for ID, ADHD (current symptoms) and CD.
The screening rates for these three disorders were 6.7%, 23.5% and 76.3%, respectively. ADHD contributed significantly to increased requests being made of staff after controlling for CD and duration of time in custody. This is a novel finding. Reading and writing difficulties and mental health problems were often identified from the custody risk assessment tools, but they were not used effectively to inform on the need for the use of an Appropriate Adult. The frequency with which Appropriate Adults were provided to support detainees in police interviews (4.2%) remains almost identical to that found in a similar study conducted 20 years previously.
The current findings suggest that in spite of reforms recently made in custodial settings, procedures may not have had the anticipated impact of improving safeguards for vulnerable suspects. Detainees with ID and ADHD require an Appropriate Adult during police interviews and other formal custody procedures, which they commonly do not currently receive. The findings of the current study suggest this may be due, in large part, to the ineffective use of risk-assessment tools and healthcare professionals, which represent missed opportunities to identify such vulnerabilities.
This study aimed to investigate the offender’s decision making in crime confession during police interrogation. On the basis of a sample of 211 incarcerated offenders, the study showed that 21% of offenders changed their mind about confessing or not their crime following police interrogation. Logit regression indicated that contextual factors were associated with the offender’s final decision to confess after controlling for the offender’s initial decision. Multinomial regression further showed that offenders with a lengthy criminal record, advised by a lawyer, and facing drug-related charges characterized by weak police evidence were less likely to confess to the police, even when they initially planned to do so. Findings are discussed in light of the literature on crime confession.
In recent years, DNA exoneration cases have shed light on the problem of false confessions and the wrongful convictions that result. Drawing on basic psychological principles and methods, an extensive body of research has focused on the psychology of confessions. This article describes the processes of interrogation by which police assess whether a suspect is lying or telling the truth and the techniques used to elicit confessions from those deemed deceptive. The problem of false confessions emphasizes personal and situational factors that put innocent people at risk in the interrogation room. Turning from the causes of false confessions to their consequences, research shows that confession evidence can bias juries, judges, lay witnesses, and forensic examiners. Finally, empirically based proposals for the reform of policy and practice include a call for the mandatory video recording of interrogations, blind testing in forensic crime labs, and use of confession experts in court.