This case is not published in a printed volume and its disposition appears in a table in the reporter.
Hon. Thomas J. Spota Suffolk County District Attorney Kerriann Kelly, Esq. Assistant District Attorney
Michael J. Brown, Esq. Attorney for Defendant
C. Randall Hinrichs, J.
Defendant has submitted a written Application seeking permission to call an expert witness at trial to testify regarding research on the subject of false confessions. The People oppose the application. Specifically, defendant seeks to call Dr. Solomon Fulero as an expert witness to "educate the trier of fact about the scientific research on false confessions, the fact that they occur, and some of the reasons why they occur." (Defendant's Application, at page 1.) Defendant submits that "jurors might be expected to assume that an innocent person will not confess to a crime he did not commit. Therefore, a study based upon generally accepted social psychology principles, establishing that the phenomenon of false confessions does occur, should be admissible to explain behavior that might appear unusual to a lay juror not familiar with the phenomenon." (Application, at page 14.)
In arriving at the instant decision the Court has received and considered the written Application filed by defendant, the People's Affidavit in Opposition with attached exhibits and accompanying Memorandum of Law, and defendant's Reply Affirmation. The Court also heard oral arguments from counsel on December 11, 2007 and January 8, 2008. In response to certain questions posed by the Court during oral arguments on December 11, 2007, the defendant also submitted a written Reply to Additional Court Inquiry' together with attached exhibits.
The instant indictment was assigned to this Court following the retirement of the previously assigned judge, the Honorable Michael F. Mullen. On May 17, 2006, following a combined Huntley, Wade and Dunaway hearing conducted on April 17, 2006, Judge Mullen issued a written decision ruling, among other holdings, defendant's written statement admissible at trial as having been voluntarily made.
The admissibility and bounds of expert testimony are matters addressed to the sound discretion of the trial court. People v Cronin, 60 N.Y.2d 430 (1983). "It is for the trial court in the first instance to determine when jurors are able to draw conclusions from the evidence based on their day-to-day experience, their common observation and their knowledge, and when they would be benefited by the specialized knowledge of an expert witness." Id . at 433.
The threshold question when expert testimony is proffered is whether the particular subject of the proposed testimony is within the ken of a typical juror. With the apparently singular exception of People v Kogut, 10 Misc.3d 305, 806 N.Y.S.2d 366 (Supreme Court, Nassau County, 2005) New York courts have consistently answered this threshold question in the negative regarding the subject of false confessions. See, for example, People v Days, 31 A.D.3d 574, 817 N.Y.S.2d 535 (2nd Dept, 2006); People v Shepard, 259 A.D.2d 775, 687 N.Y.S.2d 196 (3rd Dept, 1999); People v Green, 250 A.D.2d 143, 683 N.Y.S.2d 597 (3rd Dept, 1998); People v Lea, 144 A.D.2d 863, 534 N.Y.S.2d 588 (3rd Dept, 1988) and People v Wiggins, 2007 NY SlipOp 51715U, 16 Misc.3d 1136A (Supreme Court, Bronx County, 2007.)
See also, Curry v Burge, 2007 U.S. Dist LEXIS 78360 (SDNY, 2007) wherein United States Magistrate Judge Andrew J. Peck noted as follows in a Report and Recommendation that Curry's writ of habeas corpus be denied: "Moreover, Curry's habeas counsel did not cite a single case in his post-hearing brief to demonstrate that New York courts would have allowed false confession expert testimony at the time of Curry's trial in 1998, nor that such testimony would be allowed -- much less required for counsel to be effective -- since. To the contrary, this Court's research reveals that New York State cases at the time of Curry's trial (and since) have not allowed false confession expert testimony." Curry, id at page 68, footnote 25. [Emphasis added, internal transcript reference omitted.] United States District Court Judge Lewis A. Kaplan adopted Judge Peck's Report and Recommendations at Curry v Burge, 2007 U.S. Dist. LEXIS 84860 (SDNY, 2007.)
This Court holds that the subject of whether a person has falsely confessed "does not depend upon professional or scientific knowledge or skill not within the range of ordinary training or intelligence," and therefore, "there is no occasion to resort to expert testimony." Shepard, supra at 777.
The Court is, of course, well aware of the Court of Appeals decision in People v LeGrand,8 N.Y.3d 449 (2007) which held that expert testimony on the subject of the reliability of eyewitness identifications "in the appropriate case, may be admissible in the exercise of a court's discretion. Moreover, there are cases in which it would be an abuse of a court's discretion to ...