Legal Updates - May 2009

Court excludes testimony of Richard Leo

In the case of State v. Law, the Court of Appeals of Washington found that the trial court's decision to exclude the testimony of Dr. Richard Leo was correct. They stated:

"Law sought to call Dr. Richard Leo, a social scientist who would testify about the social psychology of interrogation and the phenomenon of false confessions, including how police interrogation techniques induce false confessions and what the indicators of an unreliable confession were. He was also prepared to testify that the circumstances surrounding Peregrin's questioning of Law suggested unreliability, and that it was improper for Dr. Hoberman to opine that Law's confession to following minors was true.

"Initially the trial court ruled that Dr. Leo's testimony would be admissible based on Law's offer of proof. But after Law testified and denied making the statements to Peregrin, the trial court ruled that Dr. Leo's testimony would be excluded. The trial court concluded that this was not a false confession case, noting that during his testimony, Law "very much made it clear that he never made those statements.... [H]e never stated that he made those statements, but because he was threatened or forced or coerced, those statements are not true.... He simply denied the conduct."

The trial court's ruling was a proper exercise of discretion. Once Law denied making the alleged confession, any testimony about whether the confession was false was irrelevant and would not assist the trier of fact. Law contends that his testimony was not an outright denial, but ambiguous at best, and asserts that his testimony was simply that Peregrin misconstrued some of his statements. But claiming that one's statements have been misconstrued is not the same as claiming that one made a false statement. Expert testimony about false confessions is only relevant when a party claims that he confessed to something he did not do. And as the trial court correctly concluded, the record here does not support Law's argument that he gave a false confession. During direct and cross-examination, he denied that he told Peregrin that he had followed 30 to 40 minors, that he had sexual thoughts of past victims two to three times a week, and that when he saw someone of similar age to the victim it triggered a sexual thought. The trial court properly excluded Dr. Leo's testimony." Click here for the complete opinion.

Court excludes testimony of Richard Ofshe

In the case of Brown v. Horell, February 23, 2009, the U. S. District Court, E.D. California upheld the trial court's decision to exclude the testimony of Dr. Richard Ofshe. The District Court stated:

"After the trial court ruled that Brown's firearm use admission could come into evidence, the defense offered Dr. Ofshe as an expert witness to explain to the jury "how some of the interrogators' tactics had the potential of inducing [Brown's] confession." The trial judge recognized that his finding that the admission was voluntary did not automatically render Ofshe's testimony irrelevant, but ultimately declined to admit it.

The trial judge found that Ofshe's testimony did not relate to a subject beyond the juror's common experience, and thus would not be helpful to the jurors as they assessed the credibility of Brown's firearm use admission. The judge explained that a significant factor in his decision was the fact that Brown made no reference to the interrogator's techniques when he retracted the firearm use admission, nor did he indicate any unsureness as to why he gave the false statement. Rather, Brown unequivocally stated that he "confessed" because someone had threatened to shoot his girlfriend if he did not take responsibility. In light of Brown's explanation for the alleged false admission, the judge reasoned that Ofshe's opinion regarding interrogation techniques would not assist the jury in assessing the credibility of the admission. Brown claims that this evidentiary ruling deprived him of his constitutional right to present a complete defense.

To the extent the jury decided to rely on Brown's admission, the sole question for their consideration was whether it was true. Ofshe was not in a position to offer anything useful in this regard. He had no expert opinion whether Brown's admission was true (RT at 48), and had no special expertise as to the truth or falsity of the remainder of Brown's statements. (RT at 56.) Upon the record of this case, the exclusion of Ofshe's testimony did not have had a substantial and injurious effect on the jury verdict at Brown's trial. See Brecht, 507 U.S. at 637." Click here for the complete opinion.

Judge rejects Dr. Ofshe testimony

In the case of Smith v. State, March 2009, the Court of Appeals of Alaska upholds the trial court's decision to reject the testimony of Dr. Richard Ofshe. From their opinion:

"Smith argues that Sergeant Kenny offered Smith a job as an informant, including an agreement that Smith would receive a full pardon after serving 5 years' imprisonment. Essentially, Smith claims to have confessed to murdering Enzler and Bellamy to "establish his credibility" so that he could serve as an informant.

Judge Link also made the following specific findings related to Smith's testimony that he had received an agreement to act as an undercover informant:
[N]o agent of the State ever offered Smith a deal to provide information to the State. No agent of the State ever offered Smith leniency or any other inducement to encourage him to give interviews or statements. Specifically, Smith's statements regarding a deal ... to the effect that he would serve five years and then receive a full pardon, or that he would work as an informant ... is fabrication on Smith's part. Smith ... offered to provide information [several individuals], but these offers were never accepted by the State. Smith also argues that Judge Link's ruling was clearly erroneous because he failed to consider the testimony of Dr. Richard Ofshe. "[W]here there is a direct conflict in testimony, it is crucial that the trial court summarize the evidence, identify factual conflicts and resolve them on the record."

Dr. Ofshe testified that the interview transcripts suggested that Smith appeared to be motivated to work as an undercover agent. He opined that several aspects of the transcripts did not make sense without there having been some prior agreement between Smith and the officers. Nevertheless, Dr. Ofshe did not raise a direct conflict in the evidence about what happened between Smith and the investigating officers. He merely offered his opinion about how to resolve a latent conflict.

A trial court "ordinarily has no obligation to accept expert testimony when it finds other evidence more persuasive." Thus, Judge Link was free to make an independent evaluation of the facts on which Dr. Ofshe relied. FN11 Based on the same evidence evaluated by Dr. Ofshe, Judge Link found that Smith was not credible and that the purported off-the-record deal was fabricated. In view of Judge Link's detailed findings, his failure to mention Dr. Ofshe by name was not clearly erroneous." Click here for the complete opinion.

Court limits testimony of Saul Kassin

In the case of State v. Cope, April 2009, the Court of Appeals of South Carolina upheld the trial court's opinion to limit the testimony of Saul Kassin. The court found that:

"Cope argues the trial court erred in excluding testimony of his false confession expert about two cases of coerced internalized false confessions. We disagree.

"In this case, Cope presented an expert, Dr. Saul Kassin, who testified regarding false confessions. Dr. Kassin testified as to the interrogation techniques used by the police in obtaining false confessions and the techniques used in this case: (1) false evidence-the officers telling Cope he failed the polygraph; (2) positive confrontation-the officers claiming they knew Cope did it; (3) the officers' refusals to accept Cope's denials of guilt even though he agreed to a polygraph and waived an attorney; (4) minimization-the officers suggesting the crime was accidental; and (5) interrogation while Cope was traumatized and tired.

Dr. Kassin proffered testimony about Peter Reilly, who falsely confessed to murdering and sexually assaulting his mother, and Gary Gauger, who falsely confessed to murdering his parents. In both of these cases, the defendants denied involvement, were administered polygraphs and told they failed, believed they must have somehow committed the crimes, and confessed. The trial court refused to allow Dr. Kassin to testify regarding specific cases of false confession unless they were "on all fours" with this case and ultimately refused to allow the testimony. The trial court in this case conscientiously considered the proffered anecdotal evidence before excluding this testimony. The theories underlying the study of coerced internalized false confessions were exhaustively presented to the jury. Dr. Kassin explained the techniques used by interrogators that can lead to false confessions and informed the jury that there were "innumerable actual cases" of coerced internalized false confessions. Therefore, we find the exclusion of the testimony regarding the specific details of the Reilly and Gauger cases does not constitute reversible error." Click here for the complete decision.