Sunday, October 4, 2009

Exclusion of Expert Testimony Regarding False Confessions Affirmed

Although counter intuitive, there now exists irrefutable evidence that people falsely confess to having committed serious crimes. Indeed in about a quarter of all wrongful convictions cleared by DNA evidence there had been a false confession (see, Innocence Project -Understand the Causes). Included in this group are cases in which the Fourth Department had affirmed the conviction despite a challenge to the voluntariness of the confession (See, e.g., People v Warney, 299 AD2d 956, 957, lv denied 99 NY2d 633 in which a man was wrongfully convicted and incarcerated for 10 years on the basis of a false confession (See). What's more studies have demonstrated that false confessions are induced by certain interrogation techniques. A useful listing of articles on this topic is available here.

One means to reduce the problem of jurors incorrectly assuming that people would not falsely confess to serious crimes would be to permit expert witnesses to explain the studies on the this topic. This would be similar to the rulings permitting experts to testify that the failure to complain of a rape is not unusual. In People v Taylor and Banks (75 NY2d 277 [1990]) experts have been permitted to testify about how rape trauma syndrome is a recently recognized psychological disorder that can cause some rape victims to appear calm and relaxed after their attacks and lead them to delay reporting their rapes. The Court explained that its ruling was intended as a legal ounterweight to jurors who have misinterpreted such symptoms as evidence that the victim consented to sexual intercourse.

Why is there perceived less of a need to inform jurors of the psychological aspects of interrogation techniques that have been shown to lead to a false confessions?

The Fourth Department apparently sees juror misconceptions over silence about rape as different than juor miscopceptions about false confessions. In People v Bean (2009 NY Slip Op 06947 [4th Dept 102/09]) the defendant contended that the court erred in precluding the testimony of his expert witness who, according to defendant, would have provided general testimony concerning police interrogation techniques and false confessions. Rejectiong this argument, the Fourth Department held that

The court did not abuse its discretion in determining that the expert's testimony would not be relevant in view of the facts of this case (see generally People v Young, 7 NY3d 40, 44-45; People v Lee, 96 NY2d 157, 162).

The Court did not state whether under other circumstances it would find an abuse of discretion in excluding this testimony.

1 comment:

  1. "The court did not abuse its discretion in determining that the expert's testimony would not be relevant in view of the facts of this case."

    Unfortunately, as is often the case, the appellate decision does not include enough facts to guide lower courts and practitioners as to what led to the absence of an abuse of discretion in this case, or consequently, what facts might result in an abuse of discretion in another case.

    According to Innocence Project records somewhere between 20-25% of cases in which defendants have been proven factually innocent by post-conviction DNA testing included false confessions.

    So, what legitimate reason could there be to prevent a jury from understanding that some defendants falsely confess? The prosecution will argue "No one would confess to such a terrible act if is wasn't true" (translate "People don't falsely confess"). Under these circumstances, isn't the exclusion of evidence of the counter-intuitive fact of false confession simply a judicial thumb on the prosecution side of the scale?