Admissibility Of "False Confession" Expert Opinion

In sexual abuse prosecution, excluding defense psychology professor’s expert defense testimony regarding general incidence of false confessions: the expert 1) did not examine the defendant, and 2) failed to address the circumstances of the defendant’s particular confession, so that the testimony was properly excluded as not relevant and as improper testimony concerning the credibility of a witness (the defendant) under FRE 702, in United States v. Benally, 541 F.3d 990 (10th Cir. Sept. 9, 2008) (No. 07-2194)

While occasionally expert testimony on false confessions can be helpful, this is only in a case where the expert testimony is directly tied to the particular defendant so that it is relevant and not unduly prejudicial to the prosecution. The Tenth Circuit's opinion in United States v. Benally, decided a little over two years ago, illustrates a common approach to assessing the proffer of false confession expert testimony.

In the case, Defendant Benally was arrested for sexually abusing his niece and younger sister-in-law, both minors. The defendant eventually provided a written confession of the alleged sexual abuse to the FBI. However, at trial, the defendant disavowed his confession. He claimed the FBI agents “would not take no for an answer” and that the confession was a result of their threats. The agents disputed that they had threatened the defendant. Prior to trial, the defendant proffered testimony by Dr. Deborah Davis, a professor of psychology at the University of Nevada as an “expert witness on false confessions.” Benally, 541 F.3d 993

A Daubert hearing was held in which the expert did not appear but the parties submitted papers. Professor Davis’s proffer consisted of a “transcript of her testimony in a similar case before a different judge” and a Power Point presentation used in that case. The trial judge in Benally’s case determined that the expert’s testimony was inadmissible because it failed Daubert’s requirements of relevance and reliability. The defendant was convicted, after a mistrial due to lack of jury unanimity. He appealed based on the exclusion of his expert witness.

The Tenth Circuit affirmed the exclusion of the expert testimony. In applying the requirements of Daubert, as reflected by revised FRE 702, the circuit noted that in general “[t]he credibility of witnesses is generally not an appropriate subject for expert testimony.” Benally, 541 F.3d at 994 (citing United States v. Adams, 271 F.3d 1236, 1244 (10th Cir. 2001) (“The psychologist, in light of the conflicting explanations and his evaluation of Mr. Adams, concluded that Mr. Adams’s account (that he lied to protect his pregnant girlfriend) was plausible, albeit misguided. We have reviewed the report, and find the district court within its discretion in holding that the report was little more than a professionally-trained witness testifying that, based upon his history, ‘Mr. Adams is the type of person who would have lied about his involvement to the police.’”))

The circuit noted that Dr. Davis’s expert testimony for the defendant did “nothing but vouch” for the credibility of the defendant’s claim that his confession was coerced. It “merely inform[ed] the jury that it should reach a particular outcome.” The circuit concluded that Davis’s testimony would “inevitably encroach[] upon the jury’s function to assess witness credibility.” Benally, 541 F.3d at 995.

The circuit also noted that the testimony could be excluded under FRE 403. It was clear that the “prejudicial effect of Dr. Davis’s testimony would substantially outweigh its probative value,” because its relevance was minimal (as the expert did not examine the defendant and was not going to describe the specifics of his confession. In short, the expert proposed only to testify “generally about the conditions known to cause false confessions, which would have included a discussion about the effects of conditions not at issue here, such as torture.” The circuit did not find this relevant and even if it was relevant the circuit concluded that the prejudice “to the prosecution that would result from permitting an expert to opine that prior confessions should essentially be disregarded because they are just as likely to be true as untrue, substantially outweighs the testimony’s minimal probative value.” Benally, 541 F.3d at 995.

For a contrasting case in which it was an error to exclude testimony by an expert on false confessions, consider the unreported case of United States v. Belyea, 159 Fed.Appx. 525, 529-30 (4th Cir. 2005) (unpublished) (Trial court erred by excluding expert testimony on factors correlating with false confessions, noting that “[t]he court’s explanation here-that whether a confession is false is ‘something juries decide all the time, and I don’t need an expert to help them in that respect’ - suggests that expert testimony on false confessions is never admissible. This approach is erroneous as a matter of law because it overlooks Daubert’ s general requirement for a particularized determination in each case. The court should have inquired into whether jurors commonly know about false confessions as a particular form of lying and about specific factors that may correlate to false confessions.”; exclusion of the expert testimony on false confessions was not harmless.)

Federal Rules of Evidence