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Vent v. State (4/11/2003) ap-1864
Vent v. State (4/11/2003) ap-1864
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts.
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
EUGENE CAREY VENT, )
) Court of Appeals No.
A-7647
Appellant, )
Trial Court No. 4FA-S97-3161 CR
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1864 - April 11, 2003]
)
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Ben J. Esch and
Niesje J. Steinkruger, Judges.
Appearances: James E. McLain, Law Office of
James E. McLain, Fairbanks, and Robert S.
Noreen, Law Office of Robert S. Noreen,
Fairbanks, for Appellant. W.H. Hawley,
Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau,
for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
MANNHEIMER, Judge, concurring.
A jury convicted Eugene C. Vent of second-degree
murder,1 first-degree sexual assault,2 second-degree assault,3
and two counts of first-degree robbery4 for the assault and
robbery of Franklin Dayton and the robbery, sexual assault, and
murder of J.H., a fifteen-year-old juvenile. Vent appeals his
convictions, arguing that the superior court erred in denying his
motion to suppress statements he made to the police, in allowing
Fairbanks Detective Aaron Ring to testify to certain matters,
and, in excluding Dr. Richard A. Leo from testifying at trial as
an expert witness. For the reasons set forth below, we affirm
Vents convictions.
Factual background
I. The assault and robbery of Franklin Dayton
Franklin Dayton attended a wedding reception at the
Eagles Hall in Fairbanks, which began on the night of October 10,
1997, and continued into the morning of October 11, 1997. After
midnight on October 11, Dayton left the reception to take a walk
downtown. As Dayton was walking down First Avenue, a car stopped
behind him. Someone from the car tripped Dayton, pushed him down
to the ground, stepped on his hand, kicked him in the ribs, and
took his money. During the attack, Dayton was told to not look
back and was instructed by someone to give me your fucking money,
bitch.
Arlo Olson, who was also attending the wedding
reception and standing outside the Eagles Hall facing First
Avenue, witnessed Kevin Pease, Marvin Roberts, George Frese and
Vent attack Dayton and then get into a car and drive away. Later
that night, Olson saw Frese again and noticed that he was
limping. Edgar Henry, who was a friend of Vent, Frese, Pease and
Roberts, told the police he saw them in Robertss car on the night
of October 10-11.
II. The murder, robbery, and sexual assault of J.H.
J.H. met his mother at her job during the afternoon of
October 10, borrowed some money from her, and put it in his
wallet. J.H. spent the evening of October 10 with Chris Stone
and a third friend, who was babysitting. The boys took some
prescription drugs during the evening to get high. After
consuming some of the pills, J.H. had a seizure and fell down.
J.H. and Stone left the babysitting residence sometime after
midnight. The boys parted company in downtown Fairbanks at
approximately 1:15 a.m.
At approximately 1:30 a.m., Melanie Durham, who lived
in a womens shelter, had been watching television when she
stepped outside to have a cigarette. She heard noises coming
from the corner of Ninth and Barnette. An obstructed view
prevented her from visibly observing what was causing the noise.
Durham heard a really bad smack followed by several more smacks
and then heard a young voice call out help me, help me. The
smacks continued and Durham described them as calculated,
extremely hard, horrendous punches. She then heard an angry,
deep, slurry, intoxicated, male Native voice yell something.
At about 2:45 a.m., citizens driving down Ninth Avenue
saw J.H. lying partly on the street and partly on the sidewalk
near the corner of Ninth and Barnette. J.H.s jacket was open,
his pants were down, and his personal effects were scattered in
the street. J.H.s wallet was not among the items found at the
scene and was never recovered. The police observed tire marks at
the scene that were similar to the width and distance between the
tires on Robertss car. After one of the citizens called 911, the
paramedics responded and took J.H. to the hospital.
A sexual assault examiner, Diane Hill, examined J.H. at
the hospital and observed a lot of purplish red swelling and
numerous minute tears around his anal verge. Hill also
discovered a large, deep, long tear on J.H.s anus, as well as
abrasions on the wall of his rectum, three or four inches inside
the anal verge.
About noon on October 11, Frese sought treatment for an
injured foot at the hospital. Frese admitted he had kicked
someone during a fight. The police subsequently seized the boot
Frese was wearing. Fairbanks Police Lieutenant David Kendrick
and nurse Julie Klaker compared the tread of Freses boot with the
injury on the left side of J.H.s head. They found the sole of
the boot to be similar to the impressions on J.H.s head.
J.H. died as a result of the injures. Dr. Franc
Fallico performed the autopsy. During the external examination,
Dr. Fallico observed multiple separate injuries on J.H.s head and
body. During the internal examination, Dr. Fallico found blood
clots on the surface of the brain and hemorrhages in the mid-
brain; he attributed J.H.s death to blunt-force trauma to his
head. He found abrasions inside J.H.s colon about four inches
from his anus. Dr. Fallico also found similarities between the
tread pattern of Freses shoes and the pattern on J.H.s head.
Franklin Mueller, a fellow inmate of Vents, testified
that Vent told him that on the night J.H. was murdered, Vent,
Frese, Pease, and Roberts were driving together in Robertss car.
Mueller further testified that Vent stated that Vent, Frese,
Pease, and Roberts went out that night and beat people up.
Joshua Bradshaw, another fellow inmate, testified that Vent
stated [w]e didnt mean to kick [J.H.] to death. Vent confessed
to Detective Aaron Ring that he, Pease, Roberts, and Frese hit
and kicked J.H.
Vent claimed at trial that he did not assault Dayton
and J.H. Vent contended that Mueller and Bradshaw were not
credible. He argued that Detective Ring pressured him into
making a false confession by lying to him about the strength of
the evidence against him.
The jury rejected Vents defense. Superior Court Judge
Ben J. Esch sentenced Vent to a term of imprisonment of 48 years
with 10 years suspended. Vent now appeals his convictions. We
affirm.
Police interviews
Detective Ring conducted three separate interviews with
Vent. In the first interview, Detective Ring interviewed Vent
for about two hours. Superior Court Judge Niesje J. Steinkruger
found that Vent was warned of his Miranda rights, informed of his
right to talk to his parents, and voluntarily waived those
rights. But she found that part-way through this first
interview, Vent made several ambiguous statements. She stated
that these statements could be interpreted as a desire to
terminate the questioning, or as a desire not to respond to
further questions in a particular area, or that Vent was
protesting because Detective Ring did not believe him. She
concluded that because it was possible that these statements
might have been a declaration of a desire to terminate the
questioning, the State had not met its burden of proving that
Vent waived his right to remain silent. She therefore suppressed
part of the first interview.
Judge Steinkruger concluded that the second and the
third interviews were not tainted by Vents first interview and
were therefore admissible. She found that the second interview
occurred four or five hours after the first interview. Vent had
been allowed to sleep, was again warned of his Miranda rights,
and was reminded of his right to have a parent present. Shortly
after the interview began, Vent asked to call his mother and was
allowed to do so. After he talked to his mother, Vent resumed
talking to Detective Ring and made inculpatory statements.
Judge Steinkruger found that the third interview
occurred approximately five or six hours after the second
interview. Vent had both eaten and slept. He again waived his
rights. Between the second and third interviews, Vent had talked
to his mother. Judge Steinkruger pointed out that Vent had
stated that he had not been coerced or threatened to make
statements.
Vent raises several arguments in claiming that Judge
Steinkruger erred in failing to suppress the second and third
interviews. He first contends that Judge Steinkruger erred in
concluding that his statements were voluntary. Factors that
impact the voluntariness of the confession include: the age,
mentality, and prior criminal experience of the accused; the
length, intensity and frequency of interrogation; the existence
of physical deprivation or mistreatment; and the existence of
threat or inducement.5 The prosecution must prove the
voluntariness of the confession by a preponderance of the
evidence, and [w]hen the accused is a juvenile, the state assumes
a particularly heavy burden of proof.6
Judge Steinkruger found that Vent was 17 years and 11
months old, was a bright young man who was lucid and alert during
the interviews, and did not demonstrate any mental impairment.
The police questioned Vent in the first interview for about two
hours, in the second interview for about an hour and half, and in
the third interview for twenty minutes. The second interview
occurred approximately four hours after the first interview and
took place after Vent had slept. The third interview occurred
approximately five hours after the second interview and after
Vent had both slept and eaten. The police had previously
arrested Vent for theft and picked up Vent two or three times for
being drunk. There was no evidence of physical deprivation,
mistreatment, threats, or inducements. Judge Steinkruger found
that the police had allowed Vent to contact his mother. She also
found that Vent had not attempted to terminate the second and
third interviews.
Reviewing the trial courts findings, Judge Steinkruger
properly evaluated the external phenomenological facts and
inferred the mental state of the accused and its legal
significance. Judge Steinkrugers findings of fact were not
clearly erroneous and she did not err in finding that the State
met its heavy burden and proved the voluntariness of Vents
confession by a preponderance of the evidence. After
independently reviewing the record, we conclude that, under the
totality of the circumstances, Vents confessions during his
second and third interviews were voluntary.
Vent contends that once Judge Steinkruger determined
that he had attempted to terminate the first interview, she
should have found that the second and third interviews were
tainted by the first interview and should have suppressed them.
But the fact that Judge Steinkruger suppressed portions of Vents
first interview did not require her to exclude the second and
third interviews.7 In determining whether to suppress the
subsequent interviews, the court needed to determine whether
Vents decision to submit to the second and subsequent interviews
was sufficiently an act of free will to purge the . . . taint of
the Miranda violation at the first interview.8 The court was
required to consider a number of factors, including whether
Miranda warnings were given before the later statement, the time
between the initial illegality and the later statement, the
presence of intervening circumstances, and the purpose and
flagrancy of the official misconduct.9
Over the years, the following factors have
[also] been used to assess whether a
defendants subsequent statement is the
tainted fruit of a prior illegality: the
purpose and flagrancy of the initial illegal
act, the amount of time between the illegal
act and the defendants subsequent statement,
the defendants physical and mental condition
at the time of the subsequent statement,
whether the defendant remained in custody or
was at liberty during this interval, whether
the defendant had the opportunity to contact
legal counsel or friends during this
interval, whether the subsequent interview
took place at a different location, whether
the defendants interrogators were the same
officers who committed the prior illegal act,
whether the evidence obtained from the prior
illegal act affected the defendants decision
to submit to a subsequent interview, whether
the police used lies or trickery to influence
the defendants decision, and whether there
were other intervening events that affected
the defendants decision.[10]
Judge Steinkruger applied these standards and concluded
that the statements that Vent made in the second and third
interviews were sufficiently separate and were acts of free will
that purged any violation of his right to remain silent that had
occurred during his first interview. She found that Detective
Rings failure to cease pursuing the first interview, or at least
clarify any ambiguities in Vents statements, was not a flagrant
or purposeful violation. She concluded that it had been a very
close question whether to suppress. She found that several hours
had lapsed between the first and second interview and between the
second and third interviews. She found that Vent had
opportunities to sleep, talk to his mother, and eat. She found
that Detective Ring had not threatened or intimidated Vent. She
did find that the police had misled Vent about the strength of
the case against him in order to induce him to talk. But she
concluded that this police tactic was not unusual or illegal and
that the tactics did not overbear Vents will.
Judge Steinkrugers findings are supported by the record
and support her conclusion that Vents second and third interviews
were admissible. Our independent review of the record supports
her conclusion.
Detective Rings testimony
Vent contends that the court erred in permitting
Detective Ring to testify that one of the reasons he returned to
question Vent in the second interview was because he did not
believe Vents statement in the first interview that Michael
Ludenbocker and Mike Williams had been involved in an altercation
near where J.H. had been attacked. He argues that it was
improper for Ring to testify that Vent had not been truthful and
that this statement was an improper comment on Vents credibility.
But reading the transcript as a whole reveals that the
purpose of the exchange was not to prove that Vent was a
dishonest person, but rather to illustrate the reasons why
Detective Ring decided to interrogate Vent a second time.
Specifically, after the initial interrogation, Detective Ring
investigated Vents claim that he, Ludenbocker, and Williams were
involved in a fight that night. Since Detective Rings
investigation revealed that Ludenbocker and Williams could not
have been involved in the fight as Vent claimed, Detective Ring
went back to interview Vent a second time and confront him with
his misrepresentation.
Judge Esch did not err in allowing this testimony. The
testimony was permissible to allow Detective Ring to show one of
the reasons why he returned and interviewed Vent a second time.
Vent had contended that Detective Ring had repeatedly questioned
and pressured Vent, ultimately coercing his confession.
Detective Rings testimony was admissible to show one of the
reasons why he continued to interrogate Vent.11 Certainly, in
some situations it would be unduly prejudicial for an officer to
testify regarding the truthfulness of a defendant.12 But, in
this case, it is difficult to see how Vent was prejudiced by
Rings testimony. During the second and third interviews, Vent
himself testified that he had not been truthful in his statements
about Ludenbocker and Williams. In addition, Vent later testified
that he had made up the information about Ludenbocker and
Williams. Therefore, the fact that Vent had not been truthful in
this part of his first statement was uncontested. Judge Esch
could properly conclude that Detective Rings explanation that one
reason he returned to talk to Vent was that he did not believe
Vents story about Ludenbocker and Williams was admissible.
In support of his contention that Detective Ring
pressured and coerced him into confessing, Vents trial counsel
cross-examined Detective Ring on the techniques that he had used
to question Vent. Detective Ring admitted that he had
misrepresented to Vent the evidence against him. He admitted
that he had told Vent that Vents clothes had blood splatter on
them when this evidence did not exist. Vents attorney suggested
that this technique was coercive. In response, Detective Ring
stated, Its quite common. It doesnt make innocent people
confess. Its a technique used by police officers all over the
country for years, even when you were [a] prosecutor, Sir, and
you didnt seem to have a problem with it then. Vents counsel did
not object and continued with his cross-examination.
On appeal, Vent contends that, although he did not
object, the trial court committed plain error in allowing
Detective Rings statement. But we are to find plain error only
when an error is so obvious that it must have been apparent to a
competent judge and a competent lawyer even without an objection
and . . . so substantially prejudicial that failing to correct it
on appeal would perpetrate a miscarriage of justice.13 Had Vents
attorney moved to strike Detective Rings statement, it would
probably have been granted. But Vents counsel chose not to take
this action. Counsel may have concluded that Detective Rings
arguably defensive statement tended to help Vents case. We do
not find plain error.
Whether the trial court erred in refusing to
allow Vent to call Dr. Richard Leo as an
expert witness on police interrogation
practices and the risk of false confessions
A major portion of Vents defense was his contention
that Detective Ring pressured him into making false statements in
which Vent implicated himself. Vent contends that Judge Esch
erred in ruling that Dr. Richard Leo, an expert witness in the
field of police interrogation practices, could not testify about
the psychology of confessions and how police interrogation
techniques can cause innocent people to confess to crimes they
did not commit.
Dr. Leo received a bachelors degree in sociology from
the University of California at Berkeley, a masters degree in
sociology from the University of Chicago, a J.D. from Berkeley,
and a Ph.D in jurisprudence and social policy from Berkeley. He
wrote his dissertation on the history, psychology, and law of
police interrogation practices in the 20th century. Dr. Leo is
currently an assistant professor of criminology and an assistant
professor of psychology at the University of California at
Irvine. He has studied and conducted research in the field of
police interrogation, as well as taught classes on police
interrogation practices, confessions, and the criminal justice
system. Dr. Leo has published numerous peer reviewed articles on
police coercion, persuasion, and interrogation. He is also
familiar with various case studies in which a person confesses to
a crime that was impossible for them to have committed.
Based on his education and research, Dr. Leo was going
to testify, inter alia, that:
there is the common belief that people do not
make unreliable or false statements unless
theyre tortured or mentally ill. And I would
explain that that - - thats not the case,
sometimes people do make false statements,
even if theyre not physically tortured or
mentally ill, that there - - there is
psychological research that explains how
certain techniques can lead people to make
the decision to confess whether theyre guilty
or innocent. And that there are certain
principles of analysis that researchers use
to evaluate whether or not a statement is
likely reliable or likely unreliable. . . .
. . .
[The testimony would explain] how
interrogation works to produce confessions,
particular techniques and what their impact
can be on someones decision making.
Alaska Rule of Evidence 702(a) states that:
[i]f scientific, technical, or other
specialized knowledge will assist the trier
of fact to understand the evidence or to
determine a fact in issue, a witness
qualified as an expert by knowledge, skill,
experience, training, or education, may
testify thereto in the form of an opinion or
otherwise.
To be admissible, expert testimony must (1) address an
issue beyond the common knowledge of the average layman, (2) be
presented by a witness having sufficient expertise, and (3)
assert a reasonable opinion given the state of the pertinent art
or scientific knowledge.14 Pursuant to Rule 702, an expert is
permitted wide latitude to offer opinions, including those that
are not based on firsthand knowledge or observation.15 The
general test regarding the admissibility of expert testimony is
whether the jury can receive appreciable help from such
testimony.16 One of the purposes of admitting expert testimony
is to inform the court and jury about affairs not within the full
understanding of the average man.17 When the subject of inquiry
is one which common knowledge would enable one to decide, it is
not a proper subject for expert testimony. It is for the trial
court in the exercise of a sound discretion to determine whether
expert testimony is appropriate under the circumstances of the
case.18
The touchstone of admissibility under Rule
702 is helpfulness to the jury. An experts
opinion is helpful only to the extent the
expert draws on some special skill,
knowledge, or experience to formulate that
opinion; the opinion must be an expert
opinion (that is, an opinion informed by the
witness expertise) rather [than] simply an
opinion broached by a purported expert.[19]
In Daubert v. Merrell Dow Pharmaceuticals, Inc., the
United States Supreme Court established a two-part test for
determining whether to admit expert testimony,20 which the Alaska
Supreme Court adopted in State v. Coon.21 Faced with a proffer
of expert scientific testimony, then, the trial judge must
determine at the outset, pursuant to Rule 104(a),22 whether the
expert is proposing to testify to (1) scientific knowledge that
(2) will assist the trier of fact to understand or determine a
fact in issue.23 Daubert sets out a number of factors for
determining whether scientific evidence is valid.24 The factors
are whether the experts reasoning: (1) can be and has been
tested; (2) has been subject to peer review; (3) has a known or
potential rate of error; and (4) generally has been accepted by
the scientific community.25
Expert testimony should be admitted only if it is both
reliable and relevant.26 The Unites States Supreme Court has
stated that Dauberts general holding setting forth the trial
judges general gatekeeping obligation applies not only to
testimony based on scientific knowledge, but also to testimony
based on technical and other specialized knowledge.27 Therefore,
the Court stated that the Daubert factors, designed for the
admission of scientific evidence, must be applied flexibly and
with regard to the type of testimony being offered.28 However as
at least one commentator has explained, [T]he upshot is that
although the Daubert Court may have selected the optimal test for
the admissibility of scientific evidence, that test is useless as
a criterion for the admissibility of other types of expert
testimony.29
Where courts are faced with the issue of admitting non-
scientific expert testimony, it is difficult to set out objective
standards for when such testimony is admissible.30 Non-
scientific opinions are not based on experiments that can be
replicated and tested.31 Yet our society relies on these
experts, such as an attorney to testify about the standard of
practice in a particular field, or an auto mechanic to testify
about the function and repair of an automobile. Determining
whether these experts, who testify from experience rather than
scientific experimentation, will be helpful to the jury can be a
challenging question.32 But the trial court has great discretion
in exercising its gatekeeping function to determine whether
expert testimony based on experience should be admissible.
In the present case, after hearing Vents offer of
proof, Judge Esch determined that Dr. Leos testimony would not
appreciably aid the jury in determining whether Vent made a false
confession. He indicated that he was troubled by the fact that
there was no way to quantify or test Dr. Leos conclusions that
certain techniques might lead to false confessions. He also
concluded that jurors would be aware that some people do make
false confessions and that this proposition could be developed by
questioning and argument.
Reviewing the law in other jurisdictions reveals that
there is some support for and against the admissibility of false
confession expert testimony. For example, in United States v.
Hall,33 the Seventh Circuit concluded that the trial judge had
excluded false confession expert testimony by improperly applying
the Daubert standards.34 On remand, the district court admitted
testimony similar to Dr. Leos.35 We would emphasize, however,
that in that case, the appellate court did not determine that the
failure to admit such testimony was error. Furthermore, at least
as set out in the district courts decision in Hall, the proposed
testimony in that case appears to have been more probative than
the offer of proof in Vents trial. Various other courts have
upheld the admissibility of false confession expert testimony.36
But in numerous other cases, appellate courts have concluded that
a trial court does not abuse its discretion in refusing to admit
this testimony.37
After a close examination of the science and court
decisions in this area, one scholar has concluded:
The unusual nature of the social sciences
like psychology and social psychology may
require a somewhat lower standard of scrutiny
than the hard sciences like physics or
chemistry, but Daubert remains a valid
guideline for most scientific evidence, both
hard and soft. For too long the behavioral
sciences and the criminal justice system have
neglected the phenomenon of false
confessions. Professors Gudjonsson, Kassin,
Wrightsman, Leo, and Ofshe, have opened a
door on a new and little understood aspect of
the interrogation process. This is not
voodoo science but is not yet ready for prime
time either.
The false confession theory needs further
study and refinement. Consequently, the
admission of expert testimony based on this
new theory is premature and therefore
unreliable. Currently, the empirical base
that supports the theory has too many
unanswered questions, no known error rate,
and just one laboratory experiment to back it
up. This foundation cannot support reliable
conclusions just yet.
. . .
Gudjonsson, Leo, and Ofshe present haunting
tales that clearly establish the existence of
false confessions. While every case of
wrongful conviction from a false confession
is a travesty of justice, these cases cannot
be viewed in the abstract. Many of the
tactics used by police that create false
confessions typically result in true
confessions as well. . . . A lack of
corroborating evidence may also be a sign of
a weak case or a lack of evidence, but it
does not necessarily mean the confession was
false. To encourage further study in this
area, courts should exercise their discretion
as the gatekeepers of expert testimony and
find the psychology of false confessions
unreliable at this time.
Still, the admissibility of expert testimony
based on the psychology of false confessions
cannot be ruled out. Two federal appellate
courts have found this testimony admissible
and the state courts are split on the issue
of the reliability of this theory. In light
of the Kumho Tire Co. case, no trial court
judge should fear the appellate courts on the
reliability issue. Almost every trial judge
who found this evidence reliable or
unreliable has been upheld on appeal. Few
have been found to abuse their
discretion.[38]
The case law and law review commentary is split over
whether to admit false confession expert testimony. Our review
of the authorities and the record convince us that there is merit
to Judge Eschs questions concerning Dr. Leos methodology and
whether his testimony would appreciably aid the jury. We
conclude that whether to admit Dr. Leos testimony and the
determination whether his testimony would appreciably aid the
jury in this case is a question that fell within the broad
discretion reserved to the trial court. We accordingly conclude
that Judge Esch did not err in refusing to admit Dr. Leos
testimony.
The convictions are AFFIRMED.
MANNHEIMER, Judge, concurring.
I agree that Judge Esch acted within his proper
discretion when he refused to allow Vent to present the expert
testimony of Dr. Richard Leo. However, unlike my colleagues, I
do not believe that this question hinges on the Daubert - Coon
rule governing the admission of scientific testimony. Rather,
Judge Eschs ruling should be upheld on the basis he himself
articulated: Dr. Leos proposed testimony would not appreciably
aid the jury because it was based on common sense rather than
scientific expertise.
Dr. Leo was extensively examined (outside the presence
of the jury) concerning his proposed testimony. He stated that,
if allowed to testify, he wished to dispel the common belief that
people do not make unreliable or false statements unless theyre
tortured or [are] mentally ill. Dr. Leo continued:
I would explain that thats not the case.
Sometimes, people do make false statements,
even if theyre not physically tortured or
mentally ill. ... There is psychological
research that explains how certain
[interrogation] techniques can lead people to
make the decision to confess, whether theyre
guilty or innocent. And ... there are
certain principles of analysis that
researchers use to evaluate whether or not a
statement is likely reliable or likely
unreliable.
Dr. Leo then explained that, with regard to the question of [a
confessions] reliability,
what researchers look at is the post-
admission [narrative] that the suspect gives
what the suspect says after the words, I did
it. What we call the post-admission
narrative. [We examine] whether that post-
admission narrative fits the facts of the
crime and demonstrates that the suspect
possesses actual knowledge [of what the
suspect is describing]. If the suspect is
giving a truthful and reliable confession,
one would expect the confession to fit the
facts of the crime ... [and] to lead to new
evidence where applicable, ... derivative
evidence, [and] to reveal details that were
only known by the police [and] the true
perpetrator, ... not public knowledge, and
[one would also expect the confession] to be
corroborated by physical and medical
evidence.
Later, during cross-examination by the prosecutor, Dr.
Leo summarized his two areas of expertise. First, Leo
told the court that he had investigated, and could
testify about, the techniques that are effective in
getting people to admit things that are against their
own self-interest. Second, Leo told the court that he
had investigated, and could testify about, the
principles that allow researchers to determine whether
the confession is reliable or not the same principles
that he described in the excerpt just quoted.
With regard to Dr. Leos first area of expertise his
study of interrogation techniques Leo did not claim
the ability to tell whether specific interrogation
techniques had caused an innocent person to falsely
confess, nor did Leo claim that he could discern when
specific interrogation techniques had overborne a
suspects will. He clarified that [his] expertise is
not on psychological mental states, but on the
interrogation techniques and tactics, and their
influence on decision-making. Leo explained that he
was not an expert on the mental state of the confessing
suspect not able to identify whether a particular
suspect was more susceptible or less susceptible to
interrogation techniques, or whether a particular
suspect was atypically influenced by the suggestions of
his interrogators.
Rather, Leo told the court, his area of expertise was
identification of the techniques that interrogators
generally employ to convince suspects to confess. Leo
had no opinion to offer as to whether these techniques
led to truthful or false confessions. In fact, he told
the court:
Dr. Leo: Even if an interrogation is
[overtly] coercive, it still could produce a
true confession. And so one cant infer from
the [interrogative] techniques that are used,
... proper or improper, whether or not the
confession is false. The only way to do
[that] is to objectively analyze whether the
suspect demonstrates actual knowledge [of the
crime] and how [the suspects narrative] fits
with the record or doesnt fit with the
record.
In sum, Dr. Leo told the court that
he did not intend to express an opinion as to
whether Vent did or did not participate in
the homicide, or whether Vent was telling the
truth or speaking falsely when he made his
statements to the police. Instead, Dr. Leo
proposed to acquaint the jury with the
principles he had described for evaluating
the truthfulness or reliability of a
confession.
It is true that, in response to a
question from Vents attorney, Dr. Leo agreed
that there are scientifically known, provable
ways to verify that a statement made to [the]
police is true, accurate, and reliable. But
Leo was speaking only of the principles he
had enunciated before: the fit between the
persons confession and the known facts of the
crime. This became obvious when Leo offered
examples of how his principles might be used
to show that a confession was false. Leo
offered the following examples: (1) a
suspect confesses to a homicide, but later
the purported victim shows up alive; (2) a
suspect confesses to a crime, but later
investigation shows that it would have been
physically impossible for the suspect to have
committed the crime as, for instance, where
the suspect was in prison or in another state
at the time of the crime; and (3) a suspect
confesses to a crime, but DNA analysis later
shows that the suspect is definitely not the
perpetrator.
At this point, Judge Esch asked Dr.
Leo if there were other factors, besides the
fit of the suspects narrative with the facts
of the case, that were relevant to assessing
the truthfulness or reliability of a
confession. Leo answered, Not really.
After hearing this, Judge Esch
wondered aloud whether Leos proposed
testimony would be of appreciable help to the
jury, since his analysis appeared to be based
on common sense rather than academic study or
research. A few minutes later, after he had
heard the arguments of the parties, Judge
Esch formally ruled that Leo would not be
allowed to testify concerning his technique
for evaluating the truthfulness or
reliability of a confession, since this
technique amounted to nothing more than
testing the details of the confession against
the known facts. Judge Esch concluded that
this was not a proper subject for expert
testimony because the jurors would understand
this without explanation from an expert.
After hearing a little more voir
dire, Judge Esch preliminarily ruled that
Dr. Leo would be allowed to testify
concerning his study of police interrogation
techniques, but that alone.1 The judge
explained that he did not want Leo to go into
whether ... those [methods] are correct or
incorrect, or the value of [the resulting]
confessions [whether they are] reliable or
unreliable.
Under Alaska Evidence Rule 702(a),
expert testimony is allowed when it will
appreciably assist the trier of fact.2 The
test is [whether] the witness special
knowledge [will] assist the trier of fact to
understand the evidence or determine a fact
in issue.3 And, as the Alaska Supreme Court
stated in D.H. v. State, [t]he decision to
admit opinion testimony into evidence lies
within the sound discretion of the trial
judge and is reviewable only for abuse of
discretion.4
Dr. Leo has earned university
degrees (including a law degree) and, for
several years, he has focused his studies on
police interrogation techniques. But Dr.
Leos academic and research achievements are
not determinative of whether Judge Esch
should have allowed him to testify. The real
question is whether Dr. Leos proposed
testimony was based on analysis or research
that was beyond the ken of the normal juror.
A witness may be an expert in the sense that
they have specialized training or experience
not shared by most people, but, under
Evidence Rule 702(a), the proponent of the
witnesss testimony must further show that
their proposed testimony is in fact grounded
on this specialized training or experience.
Here, Judge Esch concluded that
most of Dr. Leos proposed testimony was not
based on specialized training or experience,
but rather was based on the common-sense
notion that the truthfulness or reliability
of a defendants confession should be tested
by seeing how the defendants account meshed
with the facts of the case. Judge Eschs
conclusion is firmly supported by the record
of Dr. Leos voir dire.
We addressed a similar situation in
New v. State, 714 P.2d 378 (Alaska App.
1986). The defendant in New offered an
expert witness who would testify about the
point of no return that a truck driver (or
any motorist) would ultimately reach when
confronted with a traffic emergency the
point at which the driver must commit to a
particular course of action and hope for the
best. The trial judge refused to allow the
defendant to offer this testimony, and this
Court upheld the trial judges decision. We
said:
We perceive no abuse of discretion in
the present case. At best, [this witnesss]
testimony would have been cumulative and only
marginally relevant. News point of no return
defense was based on a common sense notion,
which is readily capable of being understood
by lay persons. [The proposed witnesss]
testimony concerning the options open to a
truck driver who goes beyond the point of no
return would have added little to the
understanding that any juror could reasonably
be expected to have without the need for
expert testimony.
New, 714 P.2d at 380.
Based on Dr. Leos voir dire, Judge Esch could
reasonably conclude that Dr. Leos principles for
determining the truthfulness or reliability of a
confession amounted to nothing more than the common-
sense notion that a confession must be tested against
the known facts. This being so, Judge Esch did not
abuse his discretion when he ruled that Leos proposed
testimony on this subject was not admissible under
Evidence Rule 702(a).
For these reasons, I join my colleagues in upholding
Judge Eschs decision to substantially restrict Dr. Leos
testimony.
In the Court of Appeals of the State of Alaska
Eugene Carey Vent, )
)Court of Appeals No. A-07647
Appellant, )
v. ) Order
)
State of Alaska, )
)
Appellee. )
Date of Order:
4/11/03
Trial Court Case # 4FA-97-03161CR
Before: Coats, Chief Judge, Mannheimer and Stewart,
Judges.
It is Ordered:
1. The request to publish is GRANTED.
2. Memorandum Opinion and Judgment No.
4656, issued on February 12, 2003, is
WITHDRAWN and is SUPERSEDED by Opinion No.
1864, to be issued on April 11, 2003.
Entered at the direction of the Court.
Clerk of the Appellate Courts
Deputy Clerk
Distribution:
Judge Ben J. Esch
Judge Niesje J. Steinkruger
Bill D Murphree, P.C.
Attorney at Law
P. O. Box 80044
Fairbanks AK 99708
Robert S Noreen
Attorney at Law
402 Seventh Avenue
Fairbanks AK 99701
James E McLain
Law Office of James E
McLain
P O Box 73693
Fairbanks AK 997073693
William H Hawley Jr
OSPA
310 K Street #308
Anchorage AK 99501
_______________________________
1 AS 11.41.110(a)(3).
2 AS 11.41.410(a).
3 AS 11.41.210(a).
4 AS 11.41.500(a).
5 Sprague v. State, 590 P.2d 410, 414 (Alaska 1979)
(quoting Brown v. United States, 356 F.2d 230, 232 (10th Cir.
1966)).
6 Beavers v. State, 998 P.2d 1040, 1044 (Alaska 2000).
7 Halberg v. State, 903 P.2d 1090, 1097-00 (Alaska App.
1985).
8 Id. at 1097 (quoting Brown v. Illinois, 422 U.S. 590,
602, 95 S.Ct. 2254, 2261, 45 L.Ed.2d 416 (1975)).
9 Murray v. State, 12 P.3d 784, 790 (Alaska App. 2000).
10 Halberg, 903 P.2d at 1098.
11 See Sakeagak v. State, 952 P.2d 278, 282 (Alaska App.
1998).
12 See Flynn v. State, 847 P.2d 1073, 1075-76 (Alaska
App. 1993).
13 Potts v. State, 712 P.2d 385, 390 (Alaska App. 1985).
14 United States v. Vallejo, 237 F.3d 1008, 1019 (9th
Cir. 2001).
15 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579,
592, 113 S.Ct. 2786, 2796, 125 L.Ed.2d 469 (1993).
16 United States v. Amaral, 488 F.2d 1148, 1152 (9th
Cir. 1973).
17 Id. at 1152-53 (quoting Farris v. Interstate Circuit,
116 F.2d 409, 412 (5th Cir. 1941)).
18 Cohen v. W. Hotels, Inc., 276 F.2d 26, 27 (9th Cir.
1960) (quoting Duff v. Page, 249 F.2d 137, 140 (9th Cir. 1957)
(concluding that a jury can determine, without expert assistance,
whether the installation of carpet caused the edge of a rug to
wrinkle)).
19 TRW Title Ins. Co. v. Sec. Union Title Ins. Co., 887
F. Supp. 1029, 1031 (N.D. Ill. 1995) (quoting United States v.
Benson, 941 F.2d 598, 604 (7th Cir. 1991) and finding that expert
opinion is based solely on deposition transcripts and exhibits,
court excluded expert opinion because it [did] not rely on any
expertise but [was] comprised of inferences from the record that
[the expert was] no more qualified than the jury to draw); see
also City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548,
565 (11th Cir. 1998) (noting under facts of case that the trier
of fact is entirely capable of determining whether or not to draw
such conclusions without any technical assistance from ...
experts); Jetcraft Corp. v. Flight Safety Intl, 16 F.3d 362, 366
(10th Cir. 1993) (holding that the district court properly
prohibited plaintiffs expert from doing what the jury could do
just as well on its own, i.e., infer the presence or absence of
negligence from the circumstantial evidence adduced at trial).
20 Daubert, 509 U.S. at 592, 113 S.Ct. at 2796.
21 974 P.2d 286, 402 (Alaska 1999).
22 F.R.E. 104(a) (Preliminary questions concerning the
qualification of a person to be a witness, the existence of a
privilege, or the admissibility of evidence shall be determined
by the court. . . . In making its determination it is not bound
by the rules of
evidence except those with respect to privileges.); also A.R.E.
104(a) (stating the identical Alaska rule).
23 Daubert, 509 U.S. at 592, 113 S.Ct. at 2796
(footnotes omitted).
24 Id. at 593-94, 113 S.Ct. at 2796-97.
25 Id.
26 Id. at 589, 113 S.Ct. at 2795.
27 Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137,
141, 119 S.Ct. 1167, 1171, 143 L.Ed.2d 238 (1999).
28 Id. at 150, 119 S.Ct. at 1175.
29 Edward J. Imwinkelried, The Next Step After Daubert:
Developing a Similarly Epistemological Approach to Ensuring the
Reliability of Nonscientific Expert Testimony, 15 Cardozo L. Rev.
2271, 2285 (1994).
30 See Kumho Tire, 526 U.S. at 141, 119 S.Ct. at 1171.
31 Imwinkelried, supra, at 2284-85.
32 See id. at 2293-94.
33 93 F.3d 1337 (7th Cir. 1996).
34 Id. at 1346.
35 974 F. Supp. 1998, 1204-05 (C.D. Ill. 1997), affd,
165 F.3d 1095 (7th Cir. 1989).
36 See, e.g., United States v. Shay, 57 F.3d 126, 129-30
(1st Cir. 1995) (finding trial court erred in excluding expert
testimony regarding defendants mental condition that caused him
to give false confession); United States v. Raposo, 1998 WL
879723, at 5-6 (S.D.N.Y. Dec. 16, 1998) (admitting expert
testimony on false confessions); Cassis v. State, 684 N.E.2d 233,
239 (Ind. App. 1997) (affirming trial courts decision to admit,
on limited grounds, expert witness testimony regarding police
interrogation tactics); State v. Buechler, 572 N.W.2d 65, 72-74
(Neb. 1998) (holding that the trial court committed prejudicial
error when it excluded expert testimony on false confessions);
Baldwin v. State, 482 S.E.2d 1, 5 (N.C. App. 1997) (holding that
the trial court erred in excluding expert witness testimony that
police interrogation tactics made defendant susceptible to giving
a false confession).
37 See, e.g., United States v. Griffin, 50 M.J. 278, 284
(C.A.A.F. 1999) (holding that testimony of defense expert on
false confessions properly excluded as not sufficiently
reliable); State v. Cobb, 43 P.3d 855, 869 (Kan. App. 2002)
(concluding that Dr. Leos testimony invaded the province of the
jury and that argument and cross-examination were sufficient to
illicit problems with police interrogation techniques); State v.
Tellier, 526 A.2d 941, 944 (Me. 1987) (affirming trial courts
ruling that false confession expert testimony would not be of
assistance to the jury); State v. Davis, 32 S.W.3d 603, 608-09
(Mo. App. 2000) (affirming the trial courts decision to exclude
Dr. Leos testimony on the ground that the testimony invaded the
province of the jury); State v. Free, 798 A.2d 83, 95-96 (N.J.
App. 2002) (reversing trial courts ruling that admitted expert
false confession testimony); Green v. State, 55 S.W.3d, 633, 640
(Tex. App. 2001) (affirming trial courts decision excluding
experts false confession testimony).
38 Major James R. Agar, II, The Admissibility of False
Confession Expert Testimony, 1999 Army Law 26, 42-43 (1999); see
also Paul G. Cassell, The Guilty and the Innocent: An Examination
of Alleged Cases of Wrongful Conviction from False Confessions,
22 Harv. J.L. & Pub. Poly 523 (1999) (criticizing Dr. Leos
methodology).
1 Leo proposed to give the following testimony concerning
police interrogation techniques: The basic
interrogation technique used by police is first to make
the suspect feel that they are trapped or that their
situation is hopeless; then, the police make the
suspect feel that they can improve their situation if
they confess. Thus, even though a confession is
generally perceived to be against the confessing
persons self-interest, the suspect begins to view the
confession as actually promoting their self-interest.
In instances where the suspect denies any memory of the
crime, the police sometimes employ an alternative
interrogation technique, which is to confront the
suspect with physical evidence and/or the reports of
other witnesses, attempting to convince the suspect
that, though he may not remember it, he must have
committed the crime.
2 Coburn v. Burton, 790 P.2d 1355, 1358 (Alaska 1990),
quoting D.H. v. State, 561 P.2d 294, 297 (Alaska 1977).
3 Shepard v. State, 847 P.2d 75, 80 (Alaska App. 1993),
quoting Norris v. Gatts, 738 P.2d 344, 350 (Alaska
1987).
4 561 P.2d 294, 297 (Alaska 1977).
