The Lawletter Vol 38 No 5
A growing number of state courts have ruled that expert testimony concerning the phenomenon of false confessions may be admissible in a criminal trial. The Supreme Court of Michigan recently addressed this matter and held that while such expert testimony is potentially admissible, the expert testimony at issue before the court was based on unreliable research and literature on the phenomenon of false confessions and was thus inadmissible, as had been ruled by the trial court. People v. Kowalski, 821 N.W.2d 14 (Mich. 2012).
The court held that because the claim of a false confession is beyond the common knowledge of the ordinary person, expert testimony about the phenomenon is admissible when it meets all the other requirements of the Michigan Rule of Evidence pertaining to expert testimony, namely, that the testimony be based on sufficient facts and that it be the product of reliable
methods that have been reliably applied to the facts of the case so as to "assist the trier of fact to understand the evidence or to determine a fact in issue." Id. at 27-28. However, like many other courts, Kowalski held that the proposed expert testimony in the case before it was based on unreliable research and literature about the phenomenon of false confessions and was thus inadmissible. Kowalski cited Vent v. State, 67 P.3d 661 (Alaska Ct. App. 2003), in support of its decision. Vent had also upheld the exclusion of the testimony given by the same expert witness as in Kowalski and that was similar to the testimony he would offer in Kowalski. Vent explained that while some courts have allowed such testimony, many have held that it is not an abuse of discretion to exclude it when there is no way to quantify or test it.
With respect to a different aspect of the proposed expert testimony, Kowalski remanded the matter to the trial court to further consider whether a second expert's testimony regarding the defendant's psychological profile, which he had constructed from psychological tests and
clinical interviews of the defendant, was admissible on the claim of false confession. The opinion indicated that such testimony might assist the trier of fact and would be admissible if it met the other requirements of the Rule of Evidence pertaining to expert testimony.