State Court Allows False-Confession Experts, but Bar Is High


march, 30  source : http://www.nytimes.com

ALBANY — New York’s highest court said for the first time on Thursday that expert testimony about false confessions should be allowed at trial if it is relevant to the facts of a case.

But the court also seemed to set a high bar for determining that relevance: In a 5-to-2 decision, the judges upheldthe conviction of a defendant, Khemwatie Bedessie, in the rape of a 4-year-old boy, arguing that the testimony of her expert witness was not germane to the specifics of her confession.

Still, the decision by the New York Court of Appeals was a welcome sign for defense lawyers and innocence advocates who have argued that police interrogation tactics can lead people to admit to crimes they did not commit. About a quarter of the convicts exonerated by DNA evidence nationwide gave false confessions, made self-incriminating statements or pleaded guilty, according to the Innocence Project.

“That the phenomenon of false confessions is genuine has moved from the realm of startling hypothesis into that of common knowledge, if not conventional wisdom,” Judge Susan P. Read wrote in the majority opinion.

Vincent M. Bonventre, an Albany Law School professor, called the ruling “a big step.”

“The kind of evidence, which in the past people relied on more heavily than anything else, now the Court of Appeals is saying, ‘Yeah, we understand a lot of these confessions might be false,’ ” he said.

In her 21-page opinion, Judge Read also acknowledged what has become a hot-button issue at the Capitol: the videotaping of police interrogations.

“While electronic recording of interrogations should facilitate the discovery of false confession and is becoming standard police practice, the neglect to record is not a factor or circumstance that might induce a false confession,” she wrote.

Peter J. Neufeld, a co-director of the Innocence Project, said he hoped that acknowledgment would spur the State Legislature to act on a proposed measure to require the videotaping of all interrogations, one of the key pieces of legislation that defense lawyers are promoting.

“We’ll never know what actually happened there, because there was no videotape of the interrogation,” Mr. Neufeld said of the Bedessie case. (In fact, she confessed twice, and the second one was videotaped.)

Not surprisingly, Chief Judge Jonathan Lippman joined Judge Theodore T. Jones in his dissent, because both thought that the expert in the Bedessie case should have been allowed to testify. Judge Lippman has long advocated for greater protection againstwrongful convictions through things like the videotaping of confessions and changes in the way lineups are conducted. Judge Lippman commissioned a taskforce, co-chaired by Judge Jones, that in January recommended legislation to put those measures in place.

Although the court refused to overturn the conviction of Ms. Bedessie, who is serving a 20-year sentence, “It’s a wonderful decision for defendants in the future,” said Ronald L. Kuby, who represented her in the appeal.

Ms. Bedessie, a teacher’s assistant, was charged in 2006 with performing sexual acts on a 4-year-old boy under her supervision.

At her trial the following year, Ms. Bedessie testified that she did not do the things she had described doing with the boy, and had confessed to them only after a police detective told her she could either tell the truth and go home or “go to Rikers Island jail, where she would be beaten,” according to Judge Read’s decision.

Before her trial started, Ms. Bedessie’s lawyer asked the court to allow Dr. Richard J. Ofshe, an expert on false confessions who interviewed the defendant, to testify. The trial judge denied the request, declaring, among other things, that Dr. Ofshe’s testimony would not be of value to the jury.

The Court of Appeals ruled that Dr. Ofshe’s testimony would not have been relevant to this case, after examining a report he had submitted on behalf of Ms. Bedessie. “The body of his report was filled with discussion of extraneous matters, speculation and conclusions based on facts unsupported even by defendant’s version of her interrogation,” Judge Read wrote.

For instance, Judge Read wrote, Dr. Ofshe provided an analysis suggesting that the boy was coerced into the allegations, but that had nothing to do with whether Ms. Bedessie falsely confessed. Dr. Ofshe also failed to show any link between studies of false confessions and some of the tactics that the detective was said to have used to get Ms. Bedessie to confess, the judge wrote.

Judge Jones, in the dissenting opinion, called the majority’s conclusion “curious.” The report, he wrote, “involved research concerning incidents that lead to false confessions and the tactics in this case that may have compromised the reliability of the confession.”

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