Legal Updates - Summer 2008

Courts limit or reject the testimony of expert witnesses Richard Leo, Richard Ofshe, Saul Kassin, Mark Castanza, Susan Garvey, Deborah Davis and Rosalyn Shultz on false confession issues

In the past several months numerous courts have considered and then rejected the testimony of various false confession experts. Here is a sampling:

State v. Wright, Missouri Court of Appeals, March, 2008.

In this case the Court of Appeals upheld the trial court's decision to exclude the testimony of forensic psychologist Dr. Rosalyn Shultz who sought to testify about factors which lead people to make false confessions "and the would have opined that Appellant possessed certain of those characteristics which tend to be present in people who make false confessions." The Appeals court stated that such testimony would "Invade the province of the jury." Click here for the complete opinion.

People v. Cerda, Court of Appeal, Fourth District, Division 2, California May, 2008.

The Court of Appeal upheld the trial court's decision to deny the request from the defendant for an expert (Dr. Richard Leo) in false confessions. The Court stated "a request for services that would be merely convenient to the defense rather than reasonably necessary need not be granted. Click here for the complete opinion.

People v. Rosario, Queens County Supreme Court, March, 2008.

In this case the court considered the defense request to offer Dr. Richard Ofshe as an expert witness on false confessions. The court concluded, "Dr. Ofshe's testimony did not contain 'sufficient evidence to confirm that the principles upon which the expert based his conclusions are generally accepted by social scientists and psychologists working in the field. Therefore, his anticipated testimony that psychological coercion was employed during the interrogation of defendant, Argelis Rosario, which in his opinion would induce a person to falsely confess, does not meet the Frye standard for admissibility." Click here for the complete opinion."

State v. Law, Court of Appeals of Washington, June, 2008.

The Court of Appeals upheld the trial court's decision to exclude Dr. Richard Leo's testimony after the defendant testified that he never made incriminating statements. "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."" Click here for the complete opinion.

People v. Steele, Court of Appeals, Second District, Division 8, California, June, 2008.

The Court of Appeal upheld the trial court's decision to exclude the testimony of Dr. Richard Leo, stating, "The defense offered the testimony of Dr. Richard Leo who would have testified on what psychological factors "might lead a defendant to make a false statement." Dr. Leo would have testified on police tactics that lead to inaccurate and unreliable statements. But Dr. Leo would not have offered an opinion on whether appellant's statements were false confessions. ...The trial court properly excluded Dr. Leo's testimony. The issue, as appellant framed it, was whether his statements were voluntary. Dr. Leo would not have testified on this issue." Click here for the complete opinion.

Bell, Petitioner v. Ercole, et al. US District Court, E. D. New York, June, 2008.

The US District Court stated in their opinion that "Justice Cooperman denied the defense's request to admit expert testimony (Saul Kassin), concluding that the jury could determine the voluntariness of Bell's statements based on the facts presented and that expert testimony on false confessions does not pass the Frye test of general acceptance in its field. People v. Bell, Ind. No. 128/97, slip op. at 3-4 (N.Y.Sup.Ct. Apr. 28, 1999). This decision is consistent with a long line of New York cases, of which the most recent, People v. Wiggins, 16 Misc.3d 1136 (N.Y.Sup.Ct.2007), contains a particularly thoughtful discussion of the issue." Click here for the complete opinion.

People v. Martinez, Court of Appeal, Second District, Division 6, California, March, 2008.

In this case the Court of Appeal upheld the trial court's decision to exclude the testimony of Mark Castanza on why people make false confessions. "'Expert opinion is not admissible if it consists of inferences and conclusions which can be drawn as easily and intelligently by the trier of fact as by the witness.'... A trial court may exclude the testimony of a false confessions expert where the defendant's testimony about why he falsely confessed is easily understood by jurors." Click here for the complete opinion.

State v. Wooden, Court of Appeals of Ohio, Ninth District, July, 2008.

The Court of Appeals upheld the trial court's decision to exclude the testimony of Dr. Richard Leo, stating that, "Of particular significance to the Daubert analysis here, Dr. Leo has not formulated a specific theory or methodology about false confessions that could be tested, subjected to peer review, or permit an error rate to be determined. Dr. Leo's research on false confessions has consisted of analyzing false confessions, after they have been determined to be false...... Given the evidence before the trial court that Dr. Leo's expert testimony did not include a reliable scientific theory or anything outside the understanding of the jury that would assist it in assessing the reliability of Wooden's confession, the trial court did not abuse its discretion in refusing to admit Dr. Leo's testimony." Click here for the complete opinion.

Fox,II, Appellee-Plaintiff v Indiana, Court of Appeals of Indiana, February, 2008.

At trial the defense counsel was permitted to question Dr. Ofshe generally about coerced confessions, but not to ask questions about this particular case. Fox contends the trial court erred in so limiting the scope of his expert witness's testimony. The Court of Appeals stated "The jury was also permitted to view a videotape of Fox's entire interrogation. Therefore, the jurors were fully able to apply the concepts about which Dr. Ofshe testified to the interrogation that produced Fox's confession. This is all Dr. Ofshe's permissible testimony could have accomplished. There was no reversible error here." Click here for the complete opinion.


Downs v. Virginia, Court of Appeals of Virginia, May, 2006.

In this case the defendant appealed saying that "the trial court erred in refusing to allow Dr. Susan Garvey to testify regarding Downs' "suggestibility and a psychological diagnosis." Earlier in the trial the defense had called Dr. Solomon Fulero, a nationally recognized expert in the area of false confessions, as an expert witness. Dr. Fulero testified about factors and circumstances that can lead to a false confession and described the personality characteristics of a person likely to confess to a crime they did not commit. The court only allowed Dr. Fulero to testify generally about false confessions and did not allow Dr. Fulero to testify about Downs specifically because he had never examined her." The following day the defense sought to have Dr. Garvey testify as a second expert. Dr. Garvey is a psychologist who had examined Downs prior to trial in order to determine whether she was competent to stand trial. Although Dr. Garvey had never previously qualified as an expert on false confessions, her report concluded that Downs had "personality characteristics ... consistent with the type of individual who would be prone to making a false confession." Based on her prior examination of Downs, Dr. Garvey intended to testify about two of the "false confession factors" identified by Dr. Fulero, specifically, "suggestibility and a psychological diagnosis." The trial court held that the jury did not need "expertise" to assist them in assessing whether Downs had the type of personality that Dr. Fulero described as being susceptible to giving a false confession. The Court of Appeals agreed. Click here for the complete opinion.

US v. Benally United States Court of Appeals, Tenth Circuit Sept. 9, 2008

In this case the defendant notified the government he planned to call Dr. Deborah Davis, a professor of psychology at the University of Nevada at Reno, as an expert witness on false confessions. Mr. Benally offered her as "an expert in the field of social psychology" and "the subjects of confession, interrogation techniques ... [,] and the ability of those techniques to cause people to confess." Mr. Benally offered Dr. Davis's testimony on two subjects: (1) whether false confessions occur; and (2) why people confess falsely. Dr. Davis had never examined Mr. Benally, and would not offer an opinion as to whether he confessed falsely.

After a Daubert hearing, the district court ruled that Dr. Davis's testimony was inadmissible, concluding that it did not meet the standards for relevance or reliability required by Daubert. Click here for the complete opinion.


Zhao v. City of New York, et al., Defendants United States District Court, S.D. New York.
Aug. 20, 2008.

This court also rejected the proposed testimony of Dr. Deborah Davis. Click here for the complete opinion.

Dr. Christian Meissner testifies on false confession issues - Jury finds defendant guilty

Dodson v. State, Court of Appeals of Texas, March, 2008.

In this case the the jury convicted Kira Lynn Dodson of capital murder, and the trial judge assessed a mandatory life sentence. In two issues, appellant contends the evidence is legally and factually insufficient to support the conviction. We affirm. It is interesting to note that at trial, "Dr. Christian Meissner, an assistant professor of psychology and criminal justice, testified on appellant's behalf as an expert on false confessions. According to Meissner, interrogation techniques that lead to gaining a true confession from a guilty person may also lead to receiving a false confession from an innocent person. Generally, the interrogation process contains three phases: isolating the suspect in a room and building rapport phase, confrontation phase, and minimizing the suspect's perception of the consequences phase. There are several factors that may determine whether an individual gives a false confession, including the suspect's age, the length of time the suspect is interrogated, and whether interrogation takes place in the middle of the day as opposed to the middle of the night. Meissner also testified his career has been as an academic, he had no experience in conducting law enforcement investigations, and he could not tell the jury whether appellant's confession was true or false." Click here for the complete opinion.