New York Criminal Lawyer Blog
This is a proceeding wherein the criminal court in this appeal asks for the first time to consider the admissibility of expert testimony proffered on the issue of the reliability of a confession. While in a proper case expert testimony on the phenomenon of false confessions should be admitted, the expert here did not propose testimony relevant to this defendant or her interrogation. As a result, the trial judge did not abuse his discretion when he declined to hold a Frye hearing to assess whether any principles about which the expert proposed to testify were generally accepted in the scientific community, or to permit the expert to testify.
Defendant A, a teacher’s assistant at Veda’s Learning World in Queens County, New York, is alleged to have sex abused a four-year-old boy left in her care. She is accused of pressing the boy’s hand to her partially exposed breast and touching his penis on three separate occasions between January 2 and 11 February 2006. During the last of these sexual encounters, defendant is also alleged to have placed the boy’s penis against and into her vagina.
On 19 February 2006, a Sunday, the boy who was recovering from a viral rash in his rectal area, was bathed by his mother. He repeatedly complained of itching causing his mother to ask him if anyone had touched him in his “private areas.” The mother had asked her son this question before and he had always replied “no, mommy.” But this time, the boy answered “yes,” that “A,”, “went up and down, up and down on his ‘pee-pee.'” He asked his mother not to tell anyone, though, because “teacher” wanted him to keep this secret.
The next day, the mother sought medical attention for her son and when she arrived at the hospital emergency room, she pulled the nurse aside and related what her son had revealed to her the night before. When examining the boy, the nurse asked him what happened at school. He said that Miss A had touched her “pishy” to his “pishy.” The mother explained that “pishy” was her four-year old’s word for penis. The nurse asked the boy how Ms. A had touched him, and he moved his hand around his penis in a circular fashion. The nurse notified the attending physician, who also examined the boy, and contacted the hospital’s social worker. Hospital personnel got ahold of the police, who escorted the mother and the boy to the Queens Child Advocacy Center, where the boy underwent another medical examination. There they also met with Detective B, a 20-year police force veteran, who at that time was working in the Queens Child Abuse Squad, which deals with allegations of physical and sexual abuse, neglect and assault against children under 11 years of age.
Detective B was assigned to investigate this matter. He gathered background information on the day care facility’s owner and employees, generally by conducting various computerized searches and visited the facility just to observe the building. He returned at midday on 27 February 2006, accompanied by two other detectives. He knocked on the door, identified himself to the lady who answered and asked to be shown around. He saw a room where he estimated that nine to ten children were sleeping or resting on cots. He also noticed three bathrooms on the first floor — one for boys, one for girls and one for staff. While Detective B was chatting with the lady who was giving him a tour, defendant walked in and was introduced to him as “A.”
Then on 1 March 2006, Detective Bourbon and the two other detectives visited the day care facility again, arriving at about 10:00 A.M. This time he asked defendant to accompany him to Queens Child Advocacy Center for an interview. She agreed. Once there, Detective B took her to the interview room, immediately read defendant her Miranda rights, and she signed a Miranda form. Detective B then told defendant that the boy had made an allegation and that it was his duty to find out the truth and find out what happened there. He said he knows what happened and he needed to hear her side.
As he later testified at trial, Detective B did not, in fact, then have any idea what might have transpired between the boy and defendant beyond the boy’s bare-bones allegation. He also later testified that he did not raise his voice, promise defendant leniency or discuss punishment at all.
According to Detective B, defendant looked at him in the eyes and she looked very nervous and got to slowly explain how this boy was very different from the other children at the day care facility – that he would come to her and use his hands to touch her breasts which led to an incident that occurred around noon time in early January, and then another in late January, early in the morning. Both times, she and the boy were in the bathroom. Defendant stated that she held the boy’s penis, “jerking him” while his pants were down, as she played with herself using her fingers. Defendant then described a third encounter on a Monday morning in February. This time she dropped her pants, sat on the toilet in the teacher’s bathroom, and jerked the boy’s penis with one hand while she brought him forward into her vagina and pushed him in and out of her until he started doing it himself almost as if he had done it before. The interview began at about 10:30 A.M. and lasted over an hour. The detective commented that defendant, “in the early stages” of his interview with her, expressed some relief at “getting this off her chest” and “telling the truth,” saying that she herself had difficulty understanding “what she had done to this child.”
When defendant finished, Detective B asked her if she would sit down with him and someone from the District Attorney’s office to recount on video what she had just told him. She agreed. Defendant then gave a videotaped statement in which she described the three episodes of sexual abuse in considerably greater detail. The videotaped statement began at 12:53 P.M. and ended at 1:20 P.M.
Defendant was arrested after she made her oral confession. She was subsequently indicted for first-degree rape, first-degree sexual abuse (six counts) and endangering the welfare of a child (one count). Defense counsel moved to suppress the oral and videotaped statements as involuntary. At the end of the Huntley hearing on 19 January 2007, at which Detective B testified, Supreme Court denied the motion.
Before the trial was scheduled to begin, defense counsel applied for a permission to introduce the testimony of Dr. O, an expert in the field of false confessions, on “issues such as the social science research that indicates that false confessions do exist and research regarding the correlation between the use of certain police interrogation techniques and proven false confessions.”
Reasoning by analogy to the court’s decision in People v LeGrand, which dealt with expert testimony on eyewitness identification, defense counsel argued that the judge should at a minimum hold a Frye hearing on the admissibility of Dr. O’s proffered testimony, and urged that defendant needed an expert on this vital issue of false confessions in order to mount a meaningful defense. Before beginning jury selection, Supreme Court denied defense counsel’s application.
During jury selection, defense counsel asked prospective jurors if they accepted the notion that there are instances where there could be a false confession, and could embrace that principle in the right circumstance even though there was not necessarily evidence of physical torture or abuse. Only one individual out of two panels of 14 prospective jurors voiced difficulty with this idea, saying that he considered it “pretty unusual that you’d get a false confession without some kind of extraordinary torture tactic or some kind of crazy tactic.” The judge granted defense counsel’s for-cause challenge to this prospective juror.
The People called as witnesses the boy, his mother, the nurse who examined the boy at the emergency room and the doctor who examined him at the Queens Child Advocacy Center. This physician, a pediatrician and the Center’s director, testified, among other things, that a four-year old male could achieve an erection. Detective B took the stand, testifying as described earlier, and the jury was shown defendant’s videotaped statement.
Defendant presented two character witnesses- the sister of the day care facility’s owner and Dr. D. The sister, a certified preschool teacher who helped her sister out three or four days a week in early 2006, described the facility’s physical layout and the procedures followed, including that employees were instructed never to enter the children’s bathroom and close the door, or take children into the staff bathroom; that the children used the cots only during their nap time from 12:30 to 2:30; and that noise coming from the bathrooms could be heard in the classroom. Dr. D, a forensic psychologist, testified about the proper technique for interviewing young children when investigating sex abuse allegations. He opined that the mother’s practice of randomly and frequently asking her son whether anyone had touched him inappropriately had a “suggestive quality” to it and alerted the child to a particular area of parental concern; and that young children, who are especially susceptible to suggestion, have difficulty keeping track of whether they know something because it actually happened, or because someone important in their lives told them about it.
Defendant testified on her own behalf. She denied having sexual intercourse with the boy, denied that she placed his hand on her breast and denied that she touched his penis. Defendant denied that anything she said during her videotaped confession was true, asserting that she “said all those things on the tape” only because Detective B gave his word that he would let her go home to her mother if she did; and that she sincerely believed that if she admitted to the acts described in the videotape, the detective would let her leave because that was what he promised.
The jury convicted the criminal defendant on all counts. Defendant appealed.
The Appellate Division unanimously affirmed. The court rejected all of defendant’s claims of error. It concluded that the Supreme Court providently exercised its discretion in precluding expert testimony on false confessions generally, and as to the defendant’s particular susceptibility to make a false confession under police interrogation. A Judge of this Court granted defendant leave to appeal. The court affirms.
The court’s decision in People v Lee, Although Lee addressed expert evidence on the reliability of eyewitness identification, the court laid out broad principles governing the admissibility of expert psychological testimony; namely, the admissibility and limits of expert testimony lie primarily in the sound discretion of the trial court, which should be guided by whether the proffered expert testimony would aid a lay jury in reaching a verdict The courts should be wary not to exclude such testimony merely because, to some degree, it invades the jury’s province.
In the case at bar, the court declined to hold a Frye hearing because it finds this unnecessary. Dr. O’s expert testimony was not relevant and likely to assist the jurors in any way. The court noted in particular that 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. Second, he concluded that the child’s testimony was likely to and, in fact, did corroborate defendant’s confession.
Defendant furnished most of the details of the crimes with which she was charged, but there was no way to validate her narration — recanted at trial — although it was consistent with the nature and timing of the boy’s allegation of sexual abuse. Whether or not his allegation alone was sufficient reason for the judge to deny defendant’s application, Dr. O’s proffer had nothing to say that was relevant to the circumstances of this case.
Therefore the court finds that the judge did not abuse his discretion when he determined that Dr. O’s testimony would not assist the jury in evaluating the voluntariness and truthfulness of defendant’s confession or reaching a verdict.
Research in the area of false confessions purports to show that certain types of defendants are more likely to be coerced into giving a false confession like individuals who are highly compliant or intellectually impaired or suffer from a diagnosable psychiatric disorder, or who are for some other reason psychologically or mentally fragile. Dr. O did not proffer testimony that defendant exhibited any of the personality traits that research studies have linked to false confessions. And in fact, defendant, although not well-educated, appeared at trial to be an adult of normal intelligence. She displayed no sign of any of the mental factors associated by psychiatrists or psychologists with individuals more likely to confess to crimes they did not commit.
False confessions that precipitate a wrongful conviction manifestly harm the defendant, the crime victim, society and the criminal justice system. And there is no doubt that experts in such disciplines as psychiatry and psychology or the social sciences may offer valuable testimony to educate a jury about those factors of personality and situation that the relevant scientific community considers to be associated with false confessions. While the expert may not testify as to whether a particular defendant’s confession was or was not reliable, the expert’s proffer must be relevant to the defendant and interrogation before the court. Dr. O proffer does not meet this standard, and therefore the trial judge did not abuse his discretion when he excluded the proposed testimony, even assuming that the confession was not corroborated.
The court has considered defendant’s other arguments and finds them to be without merit. Accordingly, the order of the Appellate Division should be affirmed.
Queens County Sex Crime Lawyers, Queens County Rape Lawyers and Stephen Bilkis & Associates are experts in these fields of litigation. If your loved one is faced with similar issues like the one narrated above, please do not hesitate to call us. Queens County Criminal Attorneys at our firm are the best in the country.