Terence Tekoh v. County of Los Angeles

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

TERENCE B. TEKOH, No. 18-56414

Plaintiff-Appellant, D.C. No.
v. 2:16-cv-07297-
GW-SK
COUNTY OF LOS ANGELES;
DENNIS STANGELAND, Sergeant;
CARLOS VEGA, Deputy, ORDER

Defendants-Appellees,
and

LOS ANGELES COUNTY
SHERIFF'S DEPARTMENT; DOES,
1 to 10,

Defendants.

Filed January 25, 2024

Before: Mary H. Murguia, Chief Judge, and Kim McLane
Wardlaw and Eric D. Miller, Circuit Judges.

Order;
Concurrence by Judge Wardlaw;
Dissent by Judge Collins
2 TEKOH V. COUNTY OF LOS ANGELES

SUMMARY *

Civil Rights/Coerced Confessions

The panel denied a petition for panel rehearing and a
petition for rehearing en banc in a 42 U.S.C. § 1983 action,
in which, on remand from the United States Supreme Court,
the panel reversed the district court’s judgment on a jury
verdict for defendants and remanded for a new trial on
plaintiff’s Fifth Amendment claim that his confession in his
criminal case was coerced.
Concurring in the denial of rehearing en banc, Judge
Wardlaw, joined by Chief Judge Murguia and Judge Gould,
wrote that the court correctly decided not to rehear this
case. After the Supreme Court clarified its prior case law to
hold that a Miranda violation alone does not provide a basis
for § 1983 relief, the panel, reaching the issue for the first
time on remand from the Supreme Court, held that the
district court misapplied Federal Rule of Evidence 702 and
therefore abused its discretion in excluding plaintiff’s expert
testimony on coerced confessions. Given the limited nature
of the panel’s decision—addressing for the first time in
plaintiff’s appeal the propriety of a ruling on a single
evidentiary issue applying only to the facts of this case—the
court was correct to avoid a wasteful use of en banc
resources.
Dissenting from the denial of rehearing en banc, Judge
Collins, joined by Judges Callahan, Ikuta, Bennett, R.
Nelson, Bade, Lee, Bress, Bumatay and VanDyke, wrote

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 TEKOH V. COUNTY OF LOS ANGELES 3

that in holding that the mere use of common confession
techniques triggers a need to admit expert testimony, the
panel majority’s decision (1) contravenes this Circuit’s
caselaw concerning the deference afforded to district judges
on evidentiary questions as well as Circuit caselaw
supporting the exclusion of expert testimony offered to
bolster credibility; (2) could be read as effectively creating a
per se rule requiring the admission of such testimony in all
cases alleging a coerced confession; and (3) creates a split of
authority.

ORDER

Chief Judge Murguia and Judge Wardlaw voted to deny
the petition for panel rehearing and the petition for rehearing
en banc. Judge Miller voted to grant the petition for panel
rehearing and the petition for rehearing en banc. The full
court was advised of the petition for rehearing en banc. A
judge requested a vote on whether to rehear the matter en
banc. The matter failed to receive a majority of the votes of
the nonrecused active judges in favor of en banc
consideration. Fed. R. App. P. 35(a).
The petition for panel rehearing and the petition for
rehearing en banc (Dkt. 82) are DENIED.
IT IS SO ORDERED.
4 TEKOH V. COUNTY OF LOS ANGELES

WARDLAW, Circuit Judge, with whom MURGUIA, Chief
Judge, and GOULD, Circuit Judge, join, concurring in the
denial of rehearing en banc:

The court today declines to rehear en banc an evidentiary
ruling a three-judge panel issued on remand from the
Supreme Court in Vega v. Tekoh, 597 U.S. 134 (2022). The
panel had not reached this evidentiary issue in its prior
decision that the Supreme Court elected to take up. In that
decision, the panel unanimously held based on its
understanding of then-existing Supreme Court precedent
that an officer’s use of an un-Mirandized statement could
serve as a basis for a 42 U.S.C. § 1983 claim. See Tekoh v.
County of Los Angeles, 985 F.3d 713 (9th Cir. 2021) (“Tekoh
I”), rev’d sub nom. Vega v. Tekoh, 597 U.S. 134 (2022).
Deputy Vega appealed and the Supreme Court clarified its
prior caselaw to hold that a Miranda violation alone does not
provide a basis for a § 1983 claim. See Vega, 597 U.S. at
152.
On remand the panel reached for the first time Tekoh’s
argument that the district court abused its discretion in
excluding Tekoh’s expert testimony at trial. The panel
majority held, in an originally unpublished disposition, that
the district court did so by misapplying Rule 702. See Tekoh
v. County of Los Angeles, 75 F.4th 1264 (9th Cir. 2023)
(“Tekoh II”). That decision was correct, and I join our
court’s decision to not rehear the case en banc. I write to
explain why this is the correct result.
I.
A.
Los Angeles County criminally prosecuted Terence
Tekoh twice, both times relying on a written confession that
 TEKOH V. COUNTY OF LOS ANGELES 5

Tekoh has claimed was coerced and false throughout his
now decade-long journey through our state and federal
judicial systems. After the discovery of new evidence during
his first criminal trial, the court granted the parties’ joint
motion to declare a mistrial. During the second criminal trial
some months later, the state trial court admitted the
testimony of Tekoh’s expert on false and coerced
confessions, Dr. Blandón-Gitlin. The jury acquitted Tekoh.
After he was acquitted, Tekoh filed a civil suit against
Deputy Vega under 42 U.S.C. § 1983 for, among other
claims, coercing an incriminating statement from Tekoh and
using it in a police report in violation of Tekoh’s Fifth
Amendment right against self-incrimination. See Stoot v.
City of Everett, 582 F.3d 910, 922–26 (9th Cir. 2009). Over
the strenuous and repeated objections of Tekoh’s counsel,
the district court excluded the proffered testimony of
Tekoh’s expert, Dr. Blandón-Gitlin, who would have
testified that the interrogation practices Tekoh alleges
Deputy Vega used are associated with coerced confessions,
and that Tekoh’s written confession contained hallmark
signs of coercion. While the parties did not dispute that Dr.
Blandón-Gitlin’s testimony was based upon sufficient data
or that her conclusions were the product of reliable
principles and methods, the district court determined that Dr.
Blandón-Gitlin’s testimony would not be helpful under
Federal Rule of Evidence 702 because if the jury credited
Tekoh’s account of his interrogation, it would “obviously”
find Deputy Vega liable for coercion. The district court
further found that Dr. Blandón-Gitlin’s testimony, which
would have applied her expert knowledge to the facts as
Tekoh claimed they occurred, would have amounted to
improper buttressing of Tekoh’s testimony. Without the aid
6 TEKOH V. COUNTY OF LOS ANGELES

of expert testimony on coerced confessions, the jury returned
a verdict for Deputy Vega.
Tekoh moved for a new trial, which the district court
granted in part, based on its failure to properly instruct the
jury on the Fifth Amendment deprivation claim. At the
second civil trial, the district court again excluded Dr.
Blandón-Gitlin’s testimony on Rule 702 grounds, reasoning
that “[i]f one believes Mr. Tekoh, there pretty much is
sufficient evidence that the interrogation was coercive” and
again expressing the court’s concern that the testimony
would amount to improper buttressing. Again without the
aid of any expert testimony on coerced confessions, the jury
found Deputy Vega not liable.
On appeal, the three-judge panel unanimously remanded
for a new trial, reaching only the question—no longer at
issue—of whether § 1983 provides a cause of action against
an officer who uses an un-Mirandized statement against a
defendant in a criminal proceeding, as it was then
unnecessary to reach the evidentiary issue. See Tekoh I, 985
F.3d at 726. Deputy Vega appealed the panel’s decision and
the Supreme Court reversed and remanded, holding that a
Miranda violation, standing alone, does not provide a basis
for a § 1983 claim. See Vega, 597 U.S. at 152. The Court
did not reach any other issue in the case.
B.
On remand from the Supreme Court, the panel reached
for the first time Tekoh’s separate and only remaining claim
on appeal: whether the district court abused its discretion in
excluding Dr. Blandón-Gitlin’s testimony under Rule 702.
Because the district court ignored Tekoh’s arguments that
the expert would help the jury understand issues beyond the
ken of common knowledge and mischaracterized the
 TEKOH V. COUNTY OF LOS ANGELES 7

proffered testimony as improper witness bolstering, a
majority of the panel held that the district court misapplied
Rule 702 and abused its discretion in so doing. See Tekoh
II, 75 F.4th at 1266.
Importantly, both the majority and the dissent agreed that
the disposition appropriately should be filed as an
unpublished memorandum disposition because the decision
did not establish, alter, modify, or clarify a rule of federal
law; did not call attention to a rule of law that appears to have
been generally overlooked; did not criticize existing law; and
did not involve a legal or factual issue of unique interest or
substantial public interest. See Cir. R. 36-2 (“Criteria for
Publication”); Cir. R. 36-3(a) (“Unpublished dispositions
and orders of this Court are not precedent, except when
relevant under the doctrine of law of the case or rules of
claim preclusion or issue preclusion.”).
The panel later designated the already-filed
memorandum disposition for publication pursuant to Circuit
Rule 36-2(f). That rule, which states that a disposition “shall
be” published “following a reversal or remand by the United
States Supreme Court,” has long been honored in the breach.
For decades, our court has tended not to publish dispositions
following remand from the Supreme Court where the only
issues remaining after remand are entirely separate from the
issues addressed in the Supreme Court’s decision (as here), 1

1
See, e.g., Empire Health Found. for Valley Hosp. Med. Ctr. v. Azar,
No. 18-35845, 2022 WL 17411382, at *1–2 (9th Cir. Dec. 5, 2022)
(addressing the litigant’s “remaining challenge” in a memorandum
disposition following reversal and remand by the Supreme Court);
Lambert v. Nutraceutical Corp., 783 F. App’x 720, 721–22 (9th Cir.
Aug. 27, 2019) (same); Petrella v. Metro-Goldwyn-Mayer, Inc., 584 F.
App’x 653, 654–56 (9th Cir. Aug. 22, 2014) (same); United States v.
Arvizu, 32 F. App’x 873, 873–74 (9th Cir. Mar. 21, 2002) (same);
8 TEKOH V. COUNTY OF LOS ANGELES

or where the Supreme Court remands with instructions to
apply a Supreme Court decision affecting the case. 2

Bartholomew v. Wood, 96 F.3d 1451 (Table) (9th Cir. Aug. 29, 1996)
(same); United States v. Ramirez, 163 F.3d 608, 608 (Table) (9th Cir.
Sept. 3, 1998) (disposing of the issue the Supreme Court addressed in a
published disposition, but “tak[ing] up [the defendant’s] alternate ground
for affirming the district court[]” in a memorandum disposition); see also
Ulleseit v. Bayer Healthcare Pharms., Inc., Nos. 19-15778, 19-15782,
2021 WL 6139816, at *1 (9th Cir. Dec. 29, 2021) (addressing the
“remaining ground” for relief following vacatur and remand by the
Supreme Court); Kayer v. Shinn, 841 F. App’x 34, 35 (9th Cir. Mar. 25,
2021) (same); Mena v. City of Simi Valley, 156 F. App’x 24, 26 (9th Cir.
Nov. 23, 2005) (same); United States v. Verdugo-Urquidez, 29 F.3d 637
(Table) (9th Cir. June 22, 1994) (same).
2
See, e.g., FTC v. Publishers Bus. Servs., Inc., 849 F. App’x 700, 700–
02 (9th Cir. June 10, 2021); United States v. Johnson, 833 F. App’x 665,
666–68 (9th Cir. Oct. 28, 2020); United States v. Poff, 781 F. App’x 593,
593–95 (9th Cir. July 12, 2019); E.F. ex rel. Fulsang v. Newport Mesa
Unified Sch. Dist., 726 F. App’x 535, 536–38 (9th Cir. Feb. 14, 2018);
Castillo v. Sessions, 743 F. App’x 818, 819–20 (9th Cir. Aug. 3, 2018);
Slater v. Sullivan, 447 F. App’x 759, 759–60 (9th Cir. July 19, 2011);
United States v. Quinones, 135 F. App’x 64, 65–66 (9th Cir. June 14,
2005); United States v. Tolentino, 135 F. App’x 36, 37–39 (9th Cir. June
8, 2005); United States v. Tate, 133 F. App’x 447, 448–49 (9th Cir. June
7, 2005); see also Peterson on behalf of L.P. v. Lewis County, 697 F.
App’x 490, 491–92 (9th Cir. Sept. 22, 2017); Herson v. City of
Richmond, 631 F. App’x 472, 473–74 (9th Cir. Jan. 22, 2016); Johnson
v. Finn, 468 F. App’x 680, 682–85 (9th Cir. Feb. 10, 2012); Parra
Camacho v. Holder, 478 F. App’x 431, 432 (9th Cir. July 11, 2012);
Valdovinos v. McGrath, 423 F. App’x 720, 721–24 (9th Cir. Mar. 22,
2011); United States v. Gonzalez, 450 F. App’x 662, 663 (9th Cir. Sept.
27, 2011); Lehman v. Robinson, 346 F. App’x 188, 188 (9th Cir. Sept.
16, 2009); United States v. Labra-Valladares, 220 F. App’x 606, 607
(9th Cir. Feb. 9, 2007); Earl X v. Morrow, 156 F. App’x 1, 1–2 (9th Cir.
Nov. 15, 2005); United States v. Moreno, 125 F. App’x 801, 801–02 (9th
Cir. Mar. 3, 2005); United States v. Magana, 60 F. App’x 3, 3 (9th Cir.
Jan. 13, 2003); Brown v. Mayle, 66 F. App’x 136, 137 (9th Cir. June 6,
2003); United States v. Castro, 35 F. App’x 553, 553–54 (9th Cir. May
 TEKOH V. COUNTY OF LOS ANGELES 9

Nevertheless, the panel designated the previously-filed
memorandum disposition for publication exactly as
written—without elaborating upon the facts or law that
would fully constitute a true opinion.
After the disposition was published, the en banc call
failed. See Fed. R. App. P. 35(a) (en banc rehearing will not
be ordered unless it is “necessary to secure or maintain the
uniformity of the court’s decisions” or involves a question
of “exceptional importance”); Cir. R. 35-1. The panel
majority’s ruling on a single evidentiary question narrowly
based on the circumstances of Tekoh’s case does not meet
this criteria.
II.
A.
Yet the dissent maintains that our court should have
reheard this case en banc. The dissent both misstates the
panel majority’s holding and attacks the disposition based on
language the dissent concedes it does not contain.
Most notably, the dissent erroneously claims that the
panel majority’s decision “hold[s] that the district court was
required to admit the sort of testimony at issue here.” Of
course, the decision does nothing of the sort. The dissent
appears to walk back this mischaracterization when it asserts
that the disposition “could be read as effectively requiring the
admission of such coerced-confession expert testimony
. . . .” (emphases added and omitted). But on either count,
the dissent is wrong. As we explain below, the panel
majority reversed the district court not because it was

20, 2002); United States v. X-Citement Video, Inc., 77 F.3d 491, 491
(Table) (9th Cir. Jan. 5, 1996); Lastimosa v. Hughes Aircraft Co., 878
F.2d 386, 386 (Table) (9th Cir. June 22, 1989).
10 TEKOH V. COUNTY OF LOS ANGELES

“required” to admit expert testimony on coerced
confessions—an absurd proposition—but because the
district court fundamentally misapplied Rule 702.
Had the district court engaged in a proper analysis under
Rule 702, it might have excluded some or even all of
Tekoh’s proffered expert testimony without abusing its
discretion. Certainly, the panel majority did not hold that
expert testimony that satisfies Rule 702 will always satisfy
Rule 403. Nor did the panel majority hold that expert
testimony could be admitted under Rule 702 if it were not
based upon sufficient data or if the expert’s conclusions were
not the product of reliable principles and methods—neither
of which was at issue in this case. Cf., e.g., United States v.
Hayat, 710 F.3d 875, 903 (9th Cir. 2013) (holding that the
district court did not abuse its discretion in excluding the
testimony of an expert who did not demonstrate “particular
expertise in the field of false confessions”). Rather, the
panel majority’s decision, which was limited to the unique
facts of Tekoh’s case, preserved the discretion of the district
courts to determine whether to admit or exclude expert
testimony on coerced confessions in whole or in part. Any
assertion to the contrary is flatly wrong.
B.
Turning to the narrow question in Tekoh’s case, in the
civil trial against Deputy Vega, the jury was essentially
asked to evaluate two separate but related questions. First,
whether Tekoh was credible—that is, which of Tekoh’s or
Vega’s conflicting version of events was true. Second, if
Tekoh was deemed credible, whether Vega’s actions were
unconstitutionally coercive. In its ruling excluding Dr.
Blandón-Gitlin’s testimony, the district court collapsed these
two questions, improperly making its own finding of fact
 TEKOH V. COUNTY OF LOS ANGELES 11

that if anyone believed Tekoh’s version of events, they
would necessarily find that Tekoh’s confession amounted to
coercion in violation of the Fifth Amendment. The district
court’s erroneous finding of fact ignored a host of
circumstances in which Tekoh’s testimony would not be
sufficient alone to satisfy his burden of proof on coercion. It
ignored the possibility that the jury could find Tekoh
credible but not find that Deputy Vega’s conduct amounted
to coercion. And it ignored the possibility that the jury could
find Tekoh only partially credible—that Deputy Vega used
racial epithets but never put his hand on his gun or threatened
Tekoh with deportation, for example, such that the isolated
conduct did not amount to coercion. 3
In each of these scenarios, Dr. Blandón-Gitlin’s
testimony would have been critical for the jury to
“understand the evidence” and determine whether Tekoh
met his burden to prove by a preponderance of the evidence
that his confession was coerced in violation of the Fifth
Amendment. Fed. R. Evid. 702(a). By excluding the expert
testimony, the district court failed to understand the
relationship between the percipient witnesses’ testimony as
to the circumstances of the interrogation and the expert
testimony, which is relevant to how those facts may or may
not satisfy the elements of the claim of coercion. In effect,

3
Evidently failing to recognize these possibilities, the district court at
one point offered to instruct the jury that if the jury agreed with Tekoh’s
version of events, coercion was established as a matter of law. Of course
the district court never so instructed the jury. But the fact that it offered
to do so reflects the mistaken premise on which it based its evidentiary
ruling: the erroneous belief that the jury would credit either all or none
of Tekoh’s account and the assumption, made without the analysis that
Rule 702 requires, that the jury would necessarily find coercion
established if it credited Tekoh’s account.
12 TEKOH V. COUNTY OF LOS ANGELES

it held that the only evidence it would permit Tekoh to offer
regarding both the alleged circumstances of the interrogation
and its allegedly coercive nature was Tekoh’s subjective
experience against the word of a law enforcement deputy.
In objecting to the district court’s ruling, Tekoh’s
counsel repeatedly argued that the expert testimony would
help the jury understand what is otherwise a counterintuitive
fact: that certain interrogation techniques, in particular
circumstances, can coercively elicit false confessions.
Indeed, Tekoh had a valid argument to make that Dr.
Blandón-Gitlin’s testimony, which had already been
accepted in Tekoh’s criminal trial as well as dozens of other
cases, was both specialized and relevant under Rule 702. As
“many courts” in “hundreds” of cases have long
acknowledged, false confessions are contrary to the prolific
lay understanding that people do not confess to crimes unless
they are guilty. United States v. Hayat, 2017 WL 6728639,
at *10, *12 (E.D. Cal. Dec. 27, 2017). Our society has long
abided by this deeply rooted notion, evidenced by the
Supreme Court’s statement more than 130 years ago that
“one who is innocent will not imperil his safety or prejudice
his interests by an untrue statement.” Hopt v. People, 110
U.S. 574, 585 (1884). It continues to permeate our culture
at such a fundamental level that we have codified it in our
rules of evidence. See Fed. R. Evid. 804(b)(3) (declarations
against interest are excepted from the rule against hearsay);
Crane v. Kentucky, 476 U.S. 683, 689 (1986) (recognizing
that rational jurors attach credibility to a defendant’s
confession because an innocent defendant would not admit
guilt).
Given the longstanding lay beliefs related to confessions
against interest, it would be “naïve[ to] assume[] that a jury
would be easily persuaded that an innocent person would
 TEKOH V. COUNTY OF LOS ANGELES 13

confess to a crime they did not commit by the confessor’s
testimony [recanting the confession] alone.” Lunbery v.
Hornbeak, 605 F.3d 754, 765 (9th Cir. 2010) (Hawkins, J.,
concurring). Here, the district court made this very
assumption based on its no doubt extensive experience with
confessions, coerced or not. In so doing, the district court
substituted its background and specialized knowledge for
those of the jurors, ducking the analysis Rule 702 requires.
The district court further erred in concluding that Dr.
Blandón-Gitlin’s expert testimony would amount to
improper witness buttressing. In the criminal trial predating
Tekoh’s civil suit, the state trial court admitted Dr. Blandón-
Gitlin’s testimony without any concerns of improper
buttressing. For good reason: her testimony provided expert
analysis on certain features of Tekoh’s written statement and
information on the coercive effects of the types of conduct
in which Deputy Vega allegedly engaged during the
interrogation. That Dr. Blandón-Gitlin would limit her
testimony on coercive interrogation techniques to only those
techniques Tekoh claimed Deputy Vega used supports our
conclusion that the expert was not bolstering Tekoh’s
credibility. Cf. United States v. Benally, 541 F.3d 990, 995
(10th Cir. 2008) (holding it was proper to exclude expert
testimony on “the effects of [interrogation] conditions not at
issue here, such as torture”).
If the jury had found Tekoh not credible, it would have
easily discounted Dr. Blandón-Gitlin’s testimony as
irrelevant. But—and this is the crucial point—if the jury did
find Tekoh credible, it could still have found that Tekoh did
not satisfy the burden of proving the elements of his coercion
claim. Dr. Blandón-Gitlin’s testimony was helpful because
it went to the facts at the heart of Tekoh’s legal claim, not to
his credibility.
14 TEKOH V. COUNTY OF LOS ANGELES

Moreover, even assuming the district court’s concerns
were valid, those concerns could have been properly
addressed through Rule 403 limitations on Dr. Blandón-
Gitlin’s testimony and further mitigated through proper
direct- and cross-examination. See United States v. Hall, 93
F.3d 1337, 1344 (7th Cir. 1996) (noting that, even if expert
testimony on false confessions satisfies Rule 702, “the
district court may still use the normal controls on scope of
testimony and relevance that are available to it”). The
district court was free to consider limitations on the scope of
Dr. Blandón-Gitlin’s testimony outside of Rule 702 but it
simply refused to do so, even after Tekoh’s counsel
repeatedly offered to redact and exclude portions of the
report with which the district court had expressed concerns. 4
III.
As noted above, had the district court engaged in a
proper analysis under Rule 702 or Rule 403, it might have

4
The dissent also argues that we should have reheard Tekoh II en banc
because the panel majority’s decision “creates a split with the Tenth
Circuit’s decision in United States v. Benally, 541 F.3d 990 (10th Cir.
2008).” That case, which arose in the criminal context, did not involve
a § 1983 coercion claim. See 541 F.3d at 992. The Tenth Circuit held
that the proffered expert testimony, which concerned false confessions
generally and not coercion specifically, was not relevant because the
expert in Benally, unlike Dr. Blandón-Gitlin, “was not going to
specifically discuss [Benally] or the circumstances surrounding his
confession in her testimony.” Id. at 996. Instead, she was going to testify
“about the effects of conditions not at issue [in Benally’s case], such as
torture.” Id. Based on the minimal probative value of that expert’s
testimony, the Tenth Circuit held that even if the testimony were
admissible under Rule 702 it was inadmissible under Rule 403. In short,
Benally involved distinct factual and legal circumstances and
distinguishable expert testimony. It therefore does not conflict, much
less “directly conflict,” with Tekoh II. Cir. R. 35-1.
 TEKOH V. COUNTY OF LOS ANGELES 15

excluded some or even all of Tekoh’s proffered expert
testimony. Its failure to do so amounted to an abuse of
discretion. Given the limited nature of our decision—
addressing for the first time in Tekoh’s appeal the propriety
of a ruling on a single evidentiary issue applying only to the
facts of this case—our court was correct to avoid a wasteful
use of our en banc resources.
Respectfully, I concur in the denial of rehearing en banc.

COLLINS, Circuit Judge, with whom CALLAHAN,
IKUTA, BENNETT, R. NELSON, BADE, LEE, BRESS,
BUMATAY, and VANDYKE, Circuit Judges, join,
dissenting from the denial of rehearing en banc:

Having just been reversed by the Supreme Court on other
grounds, the panel majority on remand has issued yet another
plainly erroneous published decision—one that defies
settled precedent, creates a circuit split, and will have a
substantial disruptive effect on the administration of justice
in this circuit. We should have reheard this case en banc.
According to the panel majority’s opinion, in conducting
a civil trial concerning a § 1983 claim alleging that a police
officer coerced the plaintiff’s confession, the district court
was required to admit expert testimony concerning the
potential coercive effect of commonly used interrogation
techniques. Expert testimony is needed, the majority
concluded, so that the jury can understand the coercive effect
of “minimization tactics” (i.e., blame-reducing excuses for
the suspected crime that are suggested by the interrogator)
and “false evidence ploy[s]” (i.e., bluffing by the
16 TEKOH V. COUNTY OF LOS ANGELES

interrogator as to what evidence of guilt the police have), as
well as “why just asking questions can be coercive.” Tekoh
v. County of Los Angeles, 75 F.4th 1264, 1266 (9th Cir.
2023). In holding that the mere use of such common
techniques triggers a need to admit such expert testimony,
the panel majority’s decision (1) contravenes our caselaw
concerning the deference afforded to district judges on
evidentiary questions as well as our caselaw supporting the
exclusion of expert testimony offered to bolster credibility;
(2) could be read as effectively creating a per se rule
requiring the admission of such testimony in all cases
alleging a coerced confession; and (3) creates a split of
authority. Although the concurrence in the denial of
rehearing attempts to downplay the significance of the panel
majority’s published opinion—which the panel majority
notably declines to amend—that concurrence only serves to
underscore how problematic that opinion is in the first place.
I dissent from our failure to rehear this case en banc.
I
A
In 2014, Tekoh, a citizen of Cameroon, was working as
a nursing assistant at a Los Angeles hospital “[w]hen a
female patient accused him of sexually assaulting her.”
Vega v. Tekoh, 597 U.S. 134, 138 (2022). Hospital staff
contacted the Los Angeles County Sheriff’s Department,
which dispatched Deputy Carlos Vega to the hospital. Id.
Vega questioned Tekoh at the hospital and obtained a signed
written statement from Tekoh confessing that he had touched
the patient’s vagina. However, Tekoh’s and Vega’s
accounts of that interview differ sharply.
Tekoh testified that he never asked to speak privately
with Vega, and that Vega instead took him to a soundproof
 TEKOH V. COUNTY OF LOS ANGELES 17

MRI room after dismissing the two nurses who were with
Tekoh. According to Tekoh, once inside the room, Vega
blocked him from exiting and began accusing him of
sexually assaulting the complainant. This went on, Tekoh
said, for about 35 minutes, at which point Vega falsely
claimed that they had a video of the sexual assault. Tekoh
said that he felt relieved when he heard that, because he
thought that a video would prove his innocence. Tekoh said
that, as a result, he let out a chuckle, which got Vega angry.
When Vega ignored Tekoh’s requests to speak to a
supervisor or a lawyer, Tekoh claimed that he tried to leave
but was physically blocked from exiting by Vega.
According to Tekoh:

I made one or two steps, and he rushed at me
and stepped on my toes, put his hand on his
gun and said, “Mr. Jungle N----- trying to be
smart with me. You make any funny move,
you’re going to regret it. I’m about to put
your black ass where it belongs, about to
hand you over to deportation services, and
you and your entire family will be rounded up
and sent back to the jungle.” He said, “Trust
me, I have the power to do it.”

Tekoh testified that Vega gave him a piece of paper and pen
and told him to write down what he had done to the patient
and that he should “start by showing the remorse to the
judge.” Tekoh said that, after he hesitated, Vega told him
that “he wasn’t joking and he put his hand on his gun.” At
that point, Tekoh testified, he “was ready to write whatever
[Vega] wanted.” According to Tekoh, Vega “kept
dictating,” and Tekoh “was writing” what he was told. It
was only after Tekoh signed the written statement that a
18 TEKOH V. COUNTY OF LOS ANGELES

second officer, Sergeant Dennis Stangeland, entered the
room.
In his trial testimony, Deputy Vega denied every
material allegation Tekoh made about Vega’s allegedly
coercive behavior. According to Vega, when he began
questioning Tekoh at the hospital in the presence of others,
it was Tekoh who asked if they could move to a room where
they could speak privately, and they then moved to the MRI
room. Once in the room, Vega said, he did not yell at Tekoh
because Tekoh’s general demeanor was “humble.” Vega
specifically denied that he had used “any sort of racial slur.”
Vega also stated that, for safety reasons, he left the door to
the MRI room ajar. Vega said that he decided that he wanted
another officer there, and so he called his sergeant to come.
After doing so, Vega said that he gave Tekoh a “piece of
paper” and asked him to “write what happened while I get
my sergeant and we can ask you a couple of questions.” He
denied that he threatened Tekoh and he also denied dictating
Tekoh’s statement. Vega said that Tekoh was “cooperative”
and seemed to be “feeling guilty.” Vega stated that Tekoh
did not try to leave; that Vega never stepped on Tekoh’s toes;
and that Tekoh “just continued to write the letter” while they
waited for Sergeant Stangeland. Vega further stated that
Tekoh never requested to talk to a lawyer. Vega also
specifically denied threatening to have Tekoh deported. He
also denied ever placing his hand on his gun. After Sergeant
Stangeland arrived, Vega said, they began questioning him
by using an “open-ended question” to “give[] him a chance
to explain himself.”
Sergeant Stangeland testified that, when he arrived,
Tekoh “didn’t seem agitated or distraught” but “appeared to
be calm and appeared to be prepared to talk to both of us.”
When asked to tell what happened, Stangeland said, Tekoh
 TEKOH V. COUNTY OF LOS ANGELES 19

admitted “that he had touched [the patient], the outer portion
of her vagina,” but “he was adamant on insisting that his
fingers never actually penetrated her vaginal opening.”
Stangeland said that the interview only “lasted five to ten
minutes.” At the conclusion, Stangeland stated, they asked
Tekoh to “return to writing his statement.”
B
Tekoh was arrested and charged in California state court,
where, after his first trial resulted in a mistrial, he was retried
and acquitted. Vega, 597 U.S. at 139. Tekoh then sued
Vega, Stangeland, and the County of Los Angeles under 42
U.S.C. § 1983, alleging that Vega coerced him into writing
a false confession in violation of Miranda and his Fifth
Amendment right against self-incrimination. Vega and
Stangeland prevailed at the first trial, but the district court
granted a new trial against Vega after concluding that it had
given an improper jury instruction. 597 U.S. at 139. At the
retrial against Vega only, the jury again “found in Vega’s
favor, and Tekoh appealed.” Id. at 140. The panel
“reversed, holding that the ‘use of an un-Mirandized
statement against a defendant in a criminal proceeding
violates the Fifth Amendment and may support a § 1983
claim’ against the officer who obtained the statement.” Id.
(quoting Tekoh v. County of Los Angeles, 985 F.3d 713, 722
(9th Cir. 2021)). The Supreme Court granted certiorari and
reversed. Specifically, the Court held that “a violation of the
Miranda rules” does not “provide[] a basis for a claim under
§ 1983.” Id. at 141. The Court remanded for further
proceedings. Id. at 152.
On remand, the panel, by a divided vote, again reversed
the defense verdict, but this time based on an evidentiary
issue that the panel had previously found unnecessary to
20 TEKOH V. COUNTY OF LOS ANGELES

decide. See Tekoh v. County of Los Angeles, 75 F.4th 1264
(9th Cir. 2023).
Before the first trial, Defendants filed a motion in limine
to exclude Plaintiff’s expert on coerced confessions, Dr. Iris
Blandón-Gitlin. Dr. Blandón-Gitlin was to testify that
Plaintiff’s written confession was coerced, “assuming the
veracity of Mr. Tekoh’s account of events.” The district
court concluded that, in light of that latter feature of Dr.
Blandón-Gitlin’s proffered testimony, that testimony would
“not [be] particularly helpful,” and would be “time-
consuming and potentially confusing.” As the court
explained:

[T]he main opinion in her report, is that,
quote, “Assuming the veracity of Mr.
Tekoh’s account of events, his written
confession was coerced and highly
unreliable.” Again, you don’t need an expert
for that. If the jury buys Mr. Tekoh’s version
of events, then obviously the confession was
coerced and cannot be used. And so I don’t
see why we need an expert for that.
...
So I don’t see why in this particular situation
you need an expert, because in fact,
according to the plaintiff’s version of events
that Dr. Blandon needs to assume to make her
conclusion, the jury is going to have to find
that Vega threatened Mr. Tekoh both
physically and verbally, threatened to turn
him and his family over to the authorities for
deportations, put a piece of paper in front of
 TEKOH V. COUNTY OF LOS ANGELES 21

him, and after making threatening gestures
with the hand on the gun, ordered him to
write what Vega told him. If the jury believes
that, you don’t think the jury can find
coercion without the testimony of an expert
witness?

Finally, the court also expressed its concern that allowing
Dr. Blandón-Gitlin’s testimony would be an improper
attempt to “use the expert to bolster [Tekoh’s] credibility.”
After the first jury rendered a defense verdict, Tekoh
moved for a new trial on the ground that, inter alia, Dr.
Blandón-Gitlin’s testimony had been improperly excluded.
The district court rejected this particular ground in a written
order. Summarizing its ruling, the court stated:

This Court found that her opinion was
unnecessary and problematic because: (1) if
the jury believed Mr. Tekoh’s version of the
events, his confession was clearly coerced
and highly unreliable and her opinion added
nothing of substance, (2) Plaintiff appeared
to be trying to use Dr. Blandon-Gitlin to
simply vouch for his version of the events,
but she was not a percipient witness, and
(3) her report included studies and
contentions which were irrelevant to the case.
Plaintiff here testified that Defendant Vega
browbeat him both physically and verbally,
threatened to deport not only him but also his
family, used racial epithets, denied him
access to counsel, lied to him regarding the
evidence against him, and put a piece of
22 TEKOH V. COUNTY OF LOS ANGELES

paper in front of him and forced him to write
a confession which Vega dictated. A
reasonable juror would not need the
assistance of a person with specialized
knowledge to understand that those
conditions, if true, would give rise to a false
and coerced confession.

Over a dissent from Judge Miller, the panel majority
reversed, holding that the district court abused its discretion
in excluding Dr. Blandón-Gitlin’s testimony. In its brief
opinion, the panel majority began by quoting this court’s
prior observation that “[w]hether testimony is helpful within
the meaning of Rule 702 is in essence a relevance inquiry.”
75 F.4th at 1265 (quoting Hemmings v. Tidyman’s Inc., 285
F.3d 1174, 1184 (9th Cir. 2002)). The majority then held
that “Dr. Blandón-Gitlin’s testimony was relevant to
Tekoh’s case, as she would have opined on how the text of
confessions can indicate classic symptoms of coercion, and
would have explained to the jury how Deputy Vega’s tactics
could elicit false confessions.” Id. at 1265–66. “Because
false confessions are an issue beyond the common
knowledge of the average layperson, ‘jurors would have
been better equipped to evaluate [Tekoh’s] credibility and
the confession itself had they known of the identified traits
of stress-compliant confession and been able to compare
them to [his] testimony.’” Id. at 1266 (quoting Lunbery v.
Hornbeak, 605 F.3d 754, 765 (9th Cir. 2010) (Hawkins, J.,
concurring)).
II
The panel majority’s decision is deeply flawed in
multiple respects. First, the majority blatantly disregards the
abuse-of-discretion standard of review and provides a
 TEKOH V. COUNTY OF LOS ANGELES 23

plainly erroneous explanation for rejecting the district
court’s concern that the proposed expert testimony would
have effectively vouched for Tekoh’s credibility. Second,
the panel majority’s holding that the proffered expert
testimony in this case must be admitted under Rule 702 to
help jurors understand “why just asking questions can be
coercive” could be read as effectively establishing a per se
rule requiring admission of such testimony in false
confession cases. 75 F.4th at 1266. And third, the panel
majority’s published decision directly conflicts with United
States v. Benally, 541 F.3d 990 (10th Cir. 2008), and stands
as an extreme outlier against the overwhelming body of
appellate precedent from the federal and state courts that has
repeatedly upheld exclusion of such testimony.
A
As discussed above, the district court summarized as
follows its reasons for excluding Dr. Blandón-Gitlin’s
testimony:

(1) if the jury believed Mr. Tekoh’s version
of the events, his confession was clearly
coerced and highly unreliable and her
opinion added nothing of substance,
(2) Plaintiff appeared to be trying to use Dr.
Blandon-Gitlin to simply vouch for his
version of the events, but she was not a
percipient witness, and (3) her report
included studies and contentions which were
irrelevant to the case.

Under well-settled law, the district court did not err in
excluding the proffered testimony on these three grounds.
24 TEKOH V. COUNTY OF LOS ANGELES

1
The district court’s first rationale is unassailable under
the applicable deferential standard of review. The two
participants in the key portion of the interrogation—Tekoh
and Deputy Vega—provided radically different versions of
what occurred. Tekoh said that Vega physically blocked him
from trying to leave, stepped on Tekoh’s toes, ignored his
request to speak to a lawyer, called him racial epithets,
threatened him and his family with deportation,
threateningly put his hand on his gun, and then dictated the
false confession that Tekoh wrote down. Vega denied every
single one of those allegations. Given that Dr. Blandón-
Gitlin’s expert testimony was expressly based on “assuming
the veracity of Mr. Tekoh’s accounts of events,” it was
eminently reasonable for the district court to conclude that
her testimony would not be “helpful” and would instead be
“time-consuming and potentially confusing.” As Judge
Miller explained in dissent, the district court permissibly
concluded that—if Tekoh’s version of the interrogation was
true, as Dr. Blandón-Gitlin assumed—then the coercion
would be so obvious that it would “not take an expert to see
how that would have been coercive.” See Tekoh, 75 F.4th at
1267 (Miller, J., dissenting).
The panel majority’s opinion nonetheless held that
expert testimony was necessary to “help the jury better
understand coerced confessions, including why just asking
questions can be coercive, issues that are beyond a
layperson’s understanding and not necessarily obvious, even
in these circumstances.” Tekoh, 75 F.4th at 1266 (emphasis
added). I am aware of no precedent that endorses the
majority’s extraordinary view that a district court abuses its
discretion by excluding, in a coerced confession case, expert
 TEKOH V. COUNTY OF LOS ANGELES 25

testimony about “why just asking questions can be
coercive.”
The concurrence in the denial of rehearing—which is
joined by both members of the panel majority as well as by
Judge Gould—offers two new grounds for concluding that
the district court erred here, but neither of them withstands
scrutiny. First, the concurrence says that the district court
“ignored the possibility that the jury could find Tekoh
credible but not find that Deputy Vega’s conduct amounted
to coercion.” See Concur. at 11 (emphasis added). But the
district court did not “ignore” that possibility; it expressly
rejected it as implausible, and that judgment was eminently
reasonable. The panel majority would apparently have
weighed things differently, but under the abuse of discretion
standard, “we may not simply substitute our view for that of
the district court.” United States v. Hinkson, 585 F.3d 1247,
1262 (9th Cir. 2009) (en banc). Second, the concurrence
states that the district court “ignored the possibility that the
jury could find Tekoh only partially credible—that Deputy
Vega used racial epithets but never put his hand on his gun
or threatened Tekoh with deportation, for example, such that
the isolated conduct did not amount to coercion.” See
Concur. at 11. To the extent that the district court “ignored”
the possibility of such a mix-and-match approach to
resolving the sharp credibility dispute between Tekoh and
Vega, that is unsurprising, because Tekoh did not raise such
an argument in the district court. The district court did not
abuse its discretion by failing to address speculative
hypotheticals conjured by the panel majority that were not
argued by Tekoh. And even if such an argument had been
squarely raised, it would still not have been an abuse of
discretion for the district court to conclude that Dr. Blandón-
Gitlin’s testimony would not be sufficiently helpful to the
26 TEKOH V. COUNTY OF LOS ANGELES

jury to outweigh the potential for unfair prejudice and undue
consumption of time.
2
The panel majority further erred in rejecting the district
court’s additional reasonable conclusion that Dr. Blandón-
Gitlin’s testimony improperly sought to bolster Tekoh’s
credibility. Our caselaw has long held that “[e]xpert
testimony may not appropriately be used to buttress
credibility.” See United States v. Rivera, 43 F.3d 1291, 1295
(9th Cir. 1995) (citation omitted); see also id. (stating that an
“expert witness is not permitted to testify specifically to a
witness’ credibility or to testify in such a manner as to
improperly buttress a witness’ credibility” (citation
omitted)); United States v. Candoli, 870 F.2d 496, 506 (9th
Cir. 1989) (“An expert witness is not permitted to testify
specifically to a witness’ credibility or to testify in such a
manner as to improperly buttress a witness’ credibility.”);
United States v. Binder, 769 F.2d 595, 602 (9th Cir. 1985)
(stating that expert testimony on witness credibility
improperly invades the province of the jury), overruled on
other grounds, United States v. Morales, 108 F.3d 1031,
1035 n.1 (9th Cir. 1997) (en banc). The district court’s
reliance on this further ground for excluding Dr. Blandón-
Gitlin’s testimony is likewise unassailable under the
applicable deferential standard of review. See Tekoh, 75
F.4th at 1267 (Miller, J., dissenting) (explaining that the
district court permissibly concluded that “Dr. Blandón-
Gitlin’s testimony would have violated that principle”).
On this score, one need look no further than Dr. Blandón-
Gitlin’s own expert report to see that the district court had
solid grounds to rule as it did. Although simultaneously
asserting that she would assume the truth of Tekoh’s version
 TEKOH V. COUNTY OF LOS ANGELES 27

of events, Dr. Blandón-Gitlin’s report began her case-
specific analysis of coercion by opining explicitly on how
she would resolve the credibility contest between Tekoh and
Vega: “First, Deputy Vega’s account of the circumstances in
which he met and initially interacted with Mr. Tekoh is
significantly different from the various witnesses’ accounts,
including Mr. Tekoh himself.” She then devoted three
paragraphs of her report to discussing the testimony of the
various witnesses and explaining why she would conclude
that the “overwhelming evidence from the multiple
witnesses’ core accounts suggests that Deputy Vega’s
account of events about his initial encounter and movement
to the [MRI] reading room may have been incorrect”; that
“Deputy Vega’s accounts of other critical events were
misreported”; that Vega gave inconsistent testimony at the
preliminary hearing in state court; and that “it is important
to critically evaluate the reliability of Deputy Vega’s account
of events.”
In holding that the district court abused its discretion in
excluding this testimony, the panel majority’s opinion
asserts that it would not have “impermissibly vouch[ed] for
or buttress[ed] Tekoh’s credibility,” but would merely have
“corroborate[d]” it. 75 F.4th at 1266; see also Concur. at 13
(arguing that Dr. Blandón-Gitlin’s testimony would not have
bolstered Teko’s “credibility,” but would instead only have
supported “the facts at the heart of Tekoh’s legal claim”). I
am at a loss to understand this illusory line between
corroborating Tekoh’s claims about the facts of his
interrogation and bolstering the credibility of his claims
about those facts. This majority opinion’s elusive distinction
will be a source of substantial confusion in future cases in
this court and in the district courts. And even if there were
such a line between vouching and corroborating, the district
28 TEKOH V. COUNTY OF LOS ANGELES

court acted well within its discretion in concluding that Dr.
Blandón-Gitlin’s testimony was on the impermissible
vouching side.
The concurrence further confirms the opinion’s error on
this score. The concurrence complains that the district
court’s exclusion of Dr. Blandón-Gitlin’s testimony left
Tekoh in a situation in which it “was Tekoh’s subjective
experience against the word of a law enforcement deputy.”
See Concur. at 11–12. This candid comment simply
highlights that the primary function of Dr. Blandón-Gitlin’s
testimony would have been to bolster Tekoh’s testimony in
the crucial credibility contest between Tekoh and Vega.
That, in turn, underscores the panel majority’s error in
rejecting the district court’s reasonable conclusion that Dr.
Blandón-Gitlin’s testimony violated the settled principle that
“[e]xpert testimony may not appropriately be used to
buttress credibility.” Rivera, 43 F.3d at 1295 (citation
omitted).
3
The record also amply supports the district court’s third
conclusion—namely, that Dr. Blandón-Gitlin’s “report
included studies and contentions which were irrelevant to the
case.” In particular, Dr. Blandón-Gitlin’s testimony about
minimization tactics did not line up with Tekoh’s own
version of events. Dr. Blandón-Gitlin opined that, because
Tekoh’s statement included “apologies and excuses,” this
was evidence that he had been influenced by “minimizing
tactics” that are “typically used by interrogators to downplay
the offense and influence suspects to confess.” As Dr.
Blandón-Gitlin explained, “minimization tactics” occur
when an interrogator suggests “moral justifications or face-
saving excuses” that would “explain why the person may
 TEKOH V. COUNTY OF LOS ANGELES 29

have committed the act,” thereby “imply[ing] to the suspect
that providing a confession or admission (perhaps with a
moral justification) is the best way to get out of the
situation.” But here, of course, Tekoh never claimed that
Vega tried to coax him by offering him minimizing excuses
for what had happened; his claim was that Vega dictated the
confession verbatim while holding his hand on his gun.
Although there was thus no factual basis in either
Tekoh’s or Vega’s testimony for concluding that Vega used
“minimization tactics” in the interrogation of Tekoh, the
panel majority’s opinion nonetheless inexplicably reverses
the district court on this score. According to the panel
majority, Dr. Blandón-Gitlin’s testimony was “relevant”
because it would have assisted the jury in understanding how
“Deputy Vega utilized minimization tactics—classic
coercion—to elicit incriminating admissions.” Tekoh, 75
F.4th at 1266. This reasoning is simply divorced from the
factual record of this case and flagrantly disregards the
applicable deferential standard of review.
Finally, it must be noted that, in discussing this issue, the
panel majority’s opinion makes the drive-by statement that
“minimization tactics” constitute “classic coercion.” Id.
This startling holding is based on no authority at all, but it
now arguably prohibits their use in this circuit. That broad
and unsupported statement provides yet another reason why
we should have reviewed this case en banc.
In short, the panel majority’s remarkable holding that the
district court was required to admit the sort of testimony at
issue here is clearly wrong and squarely contrary to settled
precedent.
30 TEKOH V. COUNTY OF LOS ANGELES

B
As Judge Miller’s dissent persuasively notes, the panel
majority’s terse explanation for its finding of an abuse of
discretion means that the majority’s opinion could be read as
effectively requiring the admission of such coerced-
confession expert testimony in all such cases. See Tekoh, 75
F.4th at 1267 (Miller, J., dissenting) (noting that the panel
majority’s opinion will have broad applicability because
“every situation is theoretically susceptible to some sort of
expert analysis” about such “other, subtler pressures”
(emphasis added)).
The concurrence nonetheless insists that the panel
majority’s opinion merely reflects a carefully circumscribed
analysis that is “narrowly based on the circumstances of
Tekoh’s case.” See Concur. at 9. This contention is hard to
square with the opinion that the panel majority wrote. The
potential breadth of that decision is apparent from the starkly
simplistic nature of its holding. In reversing the district
court’s decision “excluding Dr. Blandón-Gitlin’s testimony
on coerced confessions,” the panel majority’s opinion holds
that the “jury could benefit from Dr. Blandón-Gitlin’s expert
knowledge about the science of coercive interrogation
tactics, which Deputy Vega employed here, and how they
could elicit false confessions,” and that her testimony
“would help the jury better understand coerced confessions,
including why just asking questions can be coercive.” 75
F.4th at 1265–66. But the only “tactics” that the majority’s
opinion says justify admitting this expert testimony are
“minimization tactics,” a “false evidence ploy,” and “just
asking questions.” Id. Because this holding relies on very
generally described and widely used interrogation
 TEKOH V. COUNTY OF LOS ANGELES 31

techniques, 1 it will be difficult, if not impossible, to
distinguish this opinion in future coerced confession cases.
The concurrence also remarkably suggests that the panel
majority’s opinion may even leave open the possibility that
the district court on remand in this case could completely
exclude Dr. Blandón-Gitlin’s testimony. See Concur. at 10.
This revisionism is even harder to square with the panel
majority’s unamended opinion, which rejects all of the many
grounds that the district court gave for excluding that
testimony. Under the panel majority’s opinion, the only
issue under Rule 702 was whether Dr. Blandón-Gitlin’s
testimony “would help the trier of fact to understand the
evidence or to determine a fact in issue,” see FED. R. EVID.
702(a); see also Tekoh, 75 F.4th at 1265 n.1, and the majority
proceeds to hold that Dr. Blandón-Gitlin’s testimony does
satisfy Rule 702(a). The opinion also concludes that much
of that testimony is relevant; that Dr. Blandón-Gitlin’s
opinions had an adequate foundation in the testimony about
the facts of Tekoh’s interrogation; and that the testimony
does not violate the rule against using expert testimony to
bolster credibility. See Tekoh, 75 F.4th at 1265–66. Given
these holdings, it is hard to see what ground the opinion
leaves open for remand in this case that could even arguably
result in full exclusion of that testimony. The concurrence
suggests that the district court will still retain the authority,
on remand, to evaluate Dr. Blandón-Gitlin’s testimony under
Rule 403, but at best that would only give the district court

1
See, e.g., Richard A. Leo, Inside the Interrogation Room, 86 J. CRIM.
L. & CRIMINOLOGY 266, 278 table 5 (1996) (finding, in a study of
interrogation techniques in three cities, that the tactic of “[o]ffer[ing]
moral justifications/psychological excuses” was used in 34% of cases
and that “[c]onfront[ing] suspect with false evidence of guilt” was used
in 30% of cases).
32 TEKOH V. COUNTY OF LOS ANGELES

authority, on remand, to trim that testimony around the
edges. In the ruling the panel majority reverses, the district
court specifically excluded Dr. Blandón-Gitlin’s testimony
on the grounds that, inter alia, it was “not particularly
helpful” and would be “time-consuming and potentially
confusing.” That is a classic Rule 403 analysis, but the panel
majority’s opinion reverses anyway.
Accordingly, the opinion, as written, clearly does not
allow the district court in this case to re-exclude the entirety
of Dr. Blandón-Gitlin’s testimony on remand. The
concurrence’s insistence that its opinion “does nothing of the
sort,” see Concur. at 9, would have more force if the panel
majority had amended its opinion rather than insist that that
opinion somehow says something that it plainly does not.
And given the difficulty in reconciling the concurrence’s
statements with the broad language of the opinion, the
concurrence is poorly positioned to fault this dissent for
expressing an (understandable) measure of uncertainty as to
exactly how much coerced-confession expert testimony will
be required to be admitted in future cases as a result of the
opinion in this case. But what is certain is that the opinion
wrongly rejects meritorious reasons for excluding such
testimony, and it does so on broadly phrased grounds that
will make it substantially—and unjustifiably—harder to
exclude such testimony in future cases. That alone
warranted rehearing en banc.
C
The panel majority’s flawed decision also creates a split
with the Tenth Circuit’s decision in United States v. Benally,
541 F.3d 990 (10th Cir. 2008).
In Benally, the defendant appealed his child sex abuse
conviction, arguing that the district court improperly
 TEKOH V. COUNTY OF LOS ANGELES 33

excluded his proffered expert witness on false confessions.
Id. at 993. The expert would have testified concerning the
frequency of false confessions and the interrogation
techniques that cause them, testimony that would have borne
less directly on the interrogee’s credibility than Dr. Blandón-
Gitlin’s would have here. Id. at 993–94. The Tenth Circuit
found no abuse of discretion, largely due to what it
considered to be the district court’s permissible concern that
the “import of her expert testimony” would be to bolster the
interrogee’s credibility. Id. at 995. Notably, the Tenth
Circuit reached that conclusion even though the expert’s
testimony there would have been confined to these general
points and would not have “specifically discuss[ed]
[Benally] or the circumstances surrounding his confession in
her testimony.” Id. at 995. As Benally noted, that limitation
on the proffered testimony was an effort to “respond[] to the
concern expressed” in a prior Tenth Circuit decision “that ‘a
proposed expert’s opinion that a witness is lying or telling
the truth might be inadmissible . . . because the opinion
exceeds the scope of the expert’s specialized knowledge.’”
Id. (quoting United States v. Adams, 271 F.3d 1236, 1245
(10th Cir. 2001)).
Benally thus recognized that, under Adams, the inclusion
of a case-specific opinion about whether this defendant
falsely confessed would be problematic—which is the exact
opposite of what the panel majority held here. The
concurrence is therefore wrong in contending that Benally is
distinguishable on the ground that the expert there would not
have offered such case-specific opinion testimony. See
Concur. at 14 n.4. Nothing in Benally supports the
concurrence’s insinuation that, had the expert in Benally just
taken that extra step of applying her opinions about the effect
of specific techniques to Benally’s case, the result would be
34 TEKOH V. COUNTY OF LOS ANGELES

different. Benally’s reliance on Adams confirms that the
opposite is true. Moreover, the Tenth Circuit noted that,
even without this sort of case-specific testimony that was
criticized in Adams, the remaining proffered testimony about
the coercive effect of particular interrogation techniques in
Benally did not “address the other problems associated with
this type of testimony that were identified in Adams,”
namely, that such expert testimony encroaches on the jury’s
role by “vouch[ing] for the credibility of another witness”
and that the “testimony of impressively qualified experts on
the credibility of other witnesses is prejudicial, unduly
influences the jury, and should be excluded under Rule 403.”
Id. (quoting Adams, 271 F.3d at 1245). That reasoning and
result dovetail well with the district court’s reasoning here,
thereby underscoring the circuit split created by the panel
majority’s decision. The concurrence has no answer to
Benally’s analysis on this score.
The extent to which the panel majority’s decision here is
an extreme outlier is further confirmed by the substantial
body of additional precedent from other federal and state
courts across the country that have repeatedly upheld the
exclusion of comparable expert testimony under similarly
worded rules of evidence. See, e.g., United States v.
Phillipos, 849 F.3d 464, 471–72 (1st Cir. 2017) (holding that
the district court did not abuse its discretion in excluding,
under Rule 702, testimony of a proposed expert on false
confessions) (collecting cases); Commonwealth v. Alicia, 92
A.3d 753, 763–64 (Pa. 2014) (surveying the caselaw on “the
admissibility of expert testimony concerning false
confessions” and “conclud[ing], in agreement with the Tenth
Circuit Court’s decision in Benally” that such expert
testimony “constitutes an impermissible invasion of the
jury’s role as the exclusive arbiter of credibility”); State v.
 TEKOH V. COUNTY OF LOS ANGELES 35

Rafay, 285 P.3d 83, 112–13 (Wash. Ct. App. 2012) (“Under
the circumstances, the trial court’s determination that [the
confessions expert’s] proposed testimony would not be
helpful and would invade the province of the jury was at least
debatable. The trial court’s exclusion of the proposed
testimony was therefore not an abuse of discretion.”); People
v. Kowalski, 821 N.W.2d 14, 32 (Mich. 2012) (holding that
the lower courts had not abused their discretion in excluding
expert “testimony pertaining to the literature of false
confessions,” as well as additional expert “testimony
indicating that defendant’s confession was consistent with
this literature”); State v. Cobb, 43 P.3d 855, 861, 869 (Kan.
2002) (holding, in State’s cross-appeal, that the trial court
erred in admitting proffered expert testimony “regarding the
tendency of certain police interrogation techniques to
produce false confessions,” and concluding that the “type of
testimony given by [the proposed expert] in this case invades
the province of the jury”); State v. Davis, 32 S.W.3d 603,
608–09 (Mo. Ct. App. 2000) (finding no abuse of discretion
in the exclusion of such false-confession expert testimony,
holding that “the offer of proof invaded the jury’s province
to make credibility determinations”); cf. also Brown v.
Horell, 644 F.3d 969, 982–83 (9th Cir. 2011) (holding, under
AEDPA, that the state court reasonably concluded that the
exclusion of testimony from a false-confessions expert did
not violate the constitutional right to present a complete
defense).
In addition, there does not appear to be any prior civil
case in which an appellate court has held that such expert
testimony must be admitted. On that score, the panel
majority’s decision apparently stands alone.
36 TEKOH V. COUNTY OF LOS ANGELES

III
Lastly, I wish briefly to address the panel majority’s
peculiar apologia, in the concurrence, for its published
opinion in this case. The concurrence notes that the panel
originally issued its decision in this case as an unpublished
memorandum disposition. That, however, was a clear
violation of Ninth Circuit Rule 36-2(f), which requires
publication of any “written, reasoned disposition” that is “a
disposition of a case following a reversal or remand by the
United States Supreme Court.” 2 As the concurrence notes,
the panel majority subsequently “designated the previously-
filed memorandum disposition for publication exactly as
written—without elaborating upon the facts or law that
would fully constitute a true opinion.” See Concur. at 9. But
nothing in Rule 36-2(f) forbids a panel from amending an
opinion, as appropriate, so that (in the panel majority’s
words) it “would fully constitute a true opinion” when it is
published in compliance with that rule. The choice to leave
the published disposition in this case “exactly as written”—
with all its flaws—was the panel majority’s to make. If
anything, that consideration provides a further reason why
we should have reconsidered this matter en banc.
* * *
For all of these reasons, I respectfully dissent from the
denial of rehearing en banc in this case.

2
The panel majority’s culling of cases in which that rule has previously
been violated may supply grounds for perhaps amending that rule in the
future, but they provide no basis for declining to follow that rule here.
In any event, given the extent to which the panel majority’s decision in
this case departs from settled law, that decision amply meets the ordinary
criteria for publication. See NINTH CIR. R. 36-2(a) (publication is
warranted if the decision “alters” or “modifies” a “rule of federal law”).