People v. Bedessie

Jones, J. (dissenting).

Mere acceptance that false confessions exist does not aid a jury in assessing the reliability of a thinly corroborated, recanted confession. Where, as here, there is little to no corroborating evidence connecting defendant to the commission of the crimes charged, a jury will benefit from the testimony of an expert explaining factors relevant to the reliability of a confession. Because I conclude, consistent with People v LeGrand (8 NY3d 449 [2007]), that the court abused its discretion by excluding defendant’s expert testimony, I respectfully dissent.

New York does not allow a defendant to “be convicted of any offense solely upon evidence of a confession” (CPL 60.50). Section 60.50 requires “additional proof that the offense charged has been committed.” Similarly, a “defendant may not be convicted of an offense solely upon unsworn evidence” given by a young child (CPL 60.20 [3]). Here, the evidence that led to defendant’s conviction consists of her confession and the unsworn *162statements, both in court and out of court, of a young child.1 In these circumstances, a Frye hearing to consider the admissibility of expert testimony on the reliability of the confession, at the very least, should have been conducted. Moreover, it would be error to exclude such testimony, assuming it satisfied the relevant prongs enunciated in LeGrand (a case where, upon reviewing the Frye hearing, this Court concluded that the expert established at the hearing that his conclusions were generally accepted, and thus the testimony was error to exclude). Undoubtedly, relevant testimony of an expert on the reliability of confessions according to scientifically accepted principles, as well as Criminal Procedure Law §§ 60.20 and 60.50, seeks to prevent a taint of the criminal justice system—wrongful convictions.

In LeGrand,

“we h[e]ld that where the case turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime, it is an abuse of discretion for a trial court to exclude expert testimony on the reliability of eyewitness identifications if that testimony is (1) relevant to the witness’s identification of defendant, (2) based on principles that are generally accepted within the relevant scientific community, (3) proffered by a qualified expert and (4) on a topic beyond the ken of the average juror” (id. at 452).

A similar rule should be extended to the phenomenon of false confessions. Where, aside from the confession, there is little or no evidence connecting the defendant to the charged crime, to exclude expert testimony on the reliability of the defendant’s disavowed confession would be an abuse of a trial court’s discretion “if that testimony is . . . ([!]) based on principles that are generally accepted within the relevant scientific community, ([2]) proffered by a qualified expert and ([3]) on a topic beyond the ken of the average juror” (id.).

*163The majority observes that the trial judge concluded that a Frye hearing was unnecessary because the “expert testimony was not relevant and likely to assist the jurors” (majority op at 157). More specifically, the court noted that (1) “the jurors, based on their own life experiences, were competent to assess the reliability of defendant’s confession, and, indeed, the expert’s testimony threatened to usurp the jury’s function [and (2)] . . . that the child’s testimony was likely to . . . corroborate defendant’s confession” (id. at 157). Although the majority does not accept all of the judge’s observations, it nonetheless concludes, that such determination was not an abuse of discretion. I maintain, however, without a Frye hearing on the issue of whether the proposed testimony contained information generally accepted by the scientific community, such conclusion is not possible.

The majority questions the sufficiency of the proffer, curiously concluding that it was not “relevant to the defendant and interrogation before the court” (majority op at 161). Here, the proffer was made by a highly qualified individual as demonstrated by his curriculum vitae, who had previously testified in numerous cases where defendants raised the reliability of a confession as an issue. The proffer involved research concerning incidents that lead to false confessions and the tactics in this case that may have compromised the reliability of the confession. Additionally, Dr. Ofshe specifically applied his research to defendant’s interrogation and “formal” videotaped confession.2 *164Such a proffer, which was indeed relevant to this specific case, is sufficient to warrant a Frye hearing on whether such information is generally accepted.

Moreover, in light of Warney v State of New York (16 NY3d 428 [2011] [claimant was incarcerated for a murder he did not commit based upon his false confession]), expert testimony in this area warrants close consideration. It may be that this issue is not only beyond the ken of an average juror but also beyond the ken of many jurists, as it was in the area of the accuracy of eyewitness identifications. Understandably, the concept that a person would voluntarily admit to a crime he or she did not commit is counterintuitive. As we have previously observed in LeGrand, a trial court is “obliged to exercise its discretion with regard to the relevance and scope of [the] expert testimony,” despite the conclusion that an expert should have been admitted in that case (8 NY3d at 459). Thus, not only would have it been proper to conduct a Frye hearing, but also proper to admit such testimony and limit it to information that is accepted by the scientific community and is relevant to this particular case.

In sum, it is necessary to extend LeGrand to the area of false confessions. Given the unreliability of the corroborating evidence—unsworn testimony and hearsay—it was an abuse of the court’s discretion to exclude expert testimony on the reliability of defendant’s recanted confession if the proffered testimony is indeed supported by the scientific community. Certainly, it was an abuse of discretion to deny a Frye hearing given that the proffer appeared to sufficiently highlight the issues relevant to the reliability of a confession and the factors that may have undermined the reliability of defendant’s confession in this case. Accordingly, I would reverse the Appellate Division order and order a new trial.

*165Judges Ciparick, Graffeo, Smith and Pigott concur with Judge Read; Judge Jones dissents and votes to reverse in a separate opinion in which Chief Judge Lippman concurs.

Order affirmed.

. Concerning the charges of sexual abuse and rape, the child testified that defendant “squeezed [his] penis.” When asked what did defendant do to him after defendant took her pants off, the child responded, “She just squeezed my pee-pee.” The child’s mother testified that he told her that defendant “went up and down, up and down on his pee-pee.” Lastly, the medical evaluation written by the Child Advocacy Center indicated that the child told his mother that defendant had sexually abused him and “reported that [defendant] put his ‘peepee in her weewee.’ ”

. Dr. Ofshe described “the pre-admission phase of the interrogation (that part of an interrogation in which a suspect is influenced to shift from denial to admission)” and “the post-admission phase (during which the confession statement is developed and memorialized)” and explained that a contemporaneous electronic recording would have allowed one to assess, in this case, “whether [defendant] complied with [the detective]’s demand for a confession due to psychological coercion or whether she voluntarily gave a confession presumably because she felt guilt about a crime she had committed.” He also explained that such a recording is necessary in the instant case for the following reasons: (1) “Physical evidence or lack thereof’; (2) “The suggestibility of very young children” and (3) “The de-briefing of very young children” (by a parent, rather than a professional in the area of child sexual abuse cases). While Dr. Ofshe’s report explained how to ensure the reliability of defendant’s confessions, he further explained how specific tactics employed could have led to psychological coercion and, thus, the unreliability of the videotaped confession. Specifically, Dr. Ofshe stated:

“The tactic that [defendant] described] [detective] using is the psychologically coercive motivational strategy I most frequently find in use in improperly conducted sex[u]al abuse interroga*164tions. I am familiar with this tactic because it has been repeatedly described to me by persons whose interrogations were not recorded and because I have observed it in use in fully recorded interrogations done by investigators who did not recognize how blatantly coercive it was and allowed themselves to be recorded. I’ve found this tactic in use in so many coercive sexual abuse interrogations that I’ve labeled it as ‘the treatment alternative strategy.’ ”

*163 (n. cont’d)

*164Dr. Ofshe then detailed the coercive tactics in this case and how they affect

the reliability of a confession.