Defense Brief on Appeal of Trial Court's Exclusion of Expert Testimony on False Confessions

ARGUMENT

POINT I
TRIAL COURT'S REFUSAL TO ALLOW EXPERT TESTIMONY ABOUT CHARACTERISTICS OF DAN EVANS DEFENDANT AND SITUATIONAL FACTORS DURING THE INTERROGATION AND THEIR RELATION TO POTENTIAL FALSE CONFESSIONS VIOLATED EVAN'S RIGHT TO A FAIR TRIAL, AND REQUIRES REVERSAL

Dan Evans, who having had almost no contact with the criminal justice system for the entirety of his life, suddenly - in one afternoon -- confessed to two separate crimes that were committed three years apart. Given the interrogation techniques involved and Dan Evans' individual psychological make-up, there is strong basis to believe that the confessions were unreliable or false.

In their interrogation of Evans, the police employed a variety of techniques that scientific research has shown to be highly correlated with eliciting false confessions. Moreover, the police were not interrogating an individual of normal intelligence and a well-adjusted personality. Rather, Evans has severe intellectual and cognitive deficiencies that place him on the borderline of intellectual functioning. Further, extensive psychological testing shows that his personality is highly suggestible and compliant. Well-established scientific research indicates that when a person with Evans' psychological make-up is exposed to the *32 interrogation techniques, which the police freely admit to having used in this case, then any resulting confessions cannot considered reliable.

Unfortunately, the jury was not able to evaluate Evans statements in light of these findings. The trial judge decided that expert testimony on false confessions would not be admitted. As a result, the jury had no way of knowing that the techniques the police used, in light of Evans' intellectual and psychological capacities, were of vital significance. Instead, the jury was continuously exposed to the prosecutor's scientifically unsupportable idea that a false confession was not possible in this case and that the confessions were reliable. Had expert testimony been available to the jury - as required by law - Evans may very well have been found not guilty of the charged crimes, especially since there was very little evidence against him but for his confessions.

A. False confessions experts are crucial in trials in which certain specific indicia of false confessions are present

In People v. Bedessie, the Court of Appeals ruled that expert testimony may be used in trials to educate jurors about false confessions. The court ruled: “[T]here 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.” 19 NY3d 147, 161 (2012). Specifically, expert testimony would be useful to illuminate the “conditions or characteristics of an *33 interrogation which might induce someone to confess falsely to a crime” and to explain that, “certain types of defendants are more likely to be coerced into giving a false confession - e.g., 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.” 19 NY3d at 159. The Court further explained that, “just because jurors know about [false confessions] in their experience, doesn't mean they know about psychological studies about reliability of the evidence.” 19 NY3d at 156.

In this case, defense counsel sought to introduce testimony from Dr. Maria Hartwig, an expert on false confessions, to educate the jury on the phenomenon of false confessions and the factors that scientific research has found to be associated with false confessions. Scientific research demonstrates that when certain police practices are used, particularly on uniquely vulnerable suspects, what can result is a “coerced compliant false confession” in which a suspect adopts a false narrative of the crime consistent with what the suspect believes the interrogating police officer wants to hear so that the suspect can end the stressful situation they find themselves in. Christine S. Scott-Hayward, Explaining Juvenile False Confessions: Adolescent Development and Police Interrogation, 31 Law & Psychol Rev 53, 55 [2007]. Some of the specific police practices associated with “coerced compliant false confessions” are: an investigating officer that believes in *34 the suspects guilt prior to an interrogation; isolation of the suspect for a lengthy interrogation; using deception during the interrogation; suggesting to the suspect that they committed the crime accidentally; and implying that some leniency or lack of culpability will result from cooperating with the investigator. Id.; Brandon L. Garrett, The Substance of False Confessions, 62 Stan L Rev 1051, 1063-64 [2010]; Richard A. Leo, Why Interrogation Contamination Occurs, 11 Ohio St J Crim L 193, 211 [2013]. These practices are particularly likely to cause false confessions from suspects who have low intelligence, issues with cognitive functioning, suggestive and compliant personality, and who suffer from certain personality disorders. Christine S. Scott-Hayward, Explaining Juvenile False Confessions: Adolescent Development and Police Interrogation, 31 Law & Psychol Rev 53, 56 [2007]; Saul M. Kassin et. al., Police-Induced Confessions: Risk Factors and Recommendations, 34 Law & Hum Behav 3, 22 [2010], Saul Kassin, a leading researcher on false confessions, explains: “There is a strong consensus among psychologists, legal scholars, and practitioners that juveniles and individuals with cognitive impairments or psychological disorders are particularly susceptible to false confession under pressure.” Saul M. Kassin et. al., Police-Induced Confessions: Risk Factors and Recommendations, 34 Law & Hum Behav 3, 22, 34 [2010].

*35 The need for expert testimony in cases in which these indicia for false confessions is present is particularly acute because the procedures police employ that elicit false confessions are often standard techniques that are, “entirely permissible under the U.S. Constitution and recommended by police training on modern psychological interrogation techniques.” Brandon L. Garrett, The Substance of False Confessions, 62 Stan L Rev 1051, 1063 [2010]; Frances E. Chapman, Coerced Internalized False Confessions and Police Interrogations: The Power of Coercion, 37 Law & Psychol Rev 159, 164-65 [2013]. Therefore, rather than resulting from some kind of police abuse, poor training, or bad-faith, false confessions in these situations arise out of the proper application of the various techniques that are standard practice in American policing. Richard A. Leo, Why Interrogation Contamination Occurs, 11 Ohio St J Crim L 193, 197-98 [2013]; Frances E. Chapman, Coerced Internalized False Confessions and Police Interrogations: The Power of Coercion, 37 Law & Psychol Rev 159, 164-65 [2013].

It is important to note that this research does not suggest that anytime a police officer uses standard police techniques a false confession will occur. Rather, this research reveals that in situations in which many of these techniques converge, particularly in relation to a suspect with a uniquely vulnerable *36 psychological make-up, resulting statements are difficult to deem reliable.5 In the present case, then, expert testimony was essential to helping a jury connect the unique factors present in Evans' interrogation with scientific research that links those factors with false and unreliable confessions.6

B. Denying the false confessions expert was abuse of discretion because specific factors present in this case made such testimony essential

The specific indicia of false confessions that are present in this case are: (1) a defendant with severe intellectual and cognitive deficiencies and a personality that is uniquely suggestible; (2) a lead detective who believes the defendant to be *37 guilty prior to initiating the interrogation and with knowledge of all the key facts needed to contaminate the confession; (3) the employment of the standard police interrogation techniques of confrontation, minimization, deception, and possibility for leniency with cooperation; and (4) an abnormally long, isolating interrogation.

1. Evans intelligence, cognitive abilities, and personality are in line with those that make individuals uniquely vulnerable to false confessions

As explained above, courts find that vulnerability of a defendant is a crucial factor that makes false confessions more likely. In this case, psychologist Dr. Sanford Drob performed an extensive psychological evaluation of Evans and found that, “Mr. Evans exhibits traits that would render him vulnerable to producing a false confession. These traits include borderline intellectual functioning, cognitive, social and emotional immaturity, severe deficits in reality testing and deficits in the capacity to understand the actions and intentions of others, deficits in his capacity to cope with interpersonal stress, anxiety, depression, dependency, passivity and a desire to please others, and a concomitant tendency to rely on others for direction and support.” (Drob Report, 13).

With respect to intelligence, Evans was found to have an IQ of 72, which places him in the low-end of borderline intellectual functioning. (Drob Report, 8, 12). Additional testing of Evans' basic cognitive/neuropsychological processes yielded a performance in the lowest 0.4% of the population with notable deficits in *38 basic language functions, constructional capacity, learning, and memory. (Drob Report, 8). Standard tests of suggestibility and compliance showed Evans to be highly suggestive, willing to provide answers to questions for which he has no information, and a tendency to comply with requests and obey instructions even when they are against his wishes. (Drob Report, 12).

Tests of Evans' personality revealed depressive, dependent, avoidant, schizoid and negative personality traits. These tests indicated strong dependency strivings, desire to lean on others, disillusionment with those he depends on, low self-esteem, tendency to retreat into depression and fantasy, distress over personal failures, sense of humiliation, feelings of unworthiness, uselessness and guilt, and evidence that Evans is timid, shy, anxious and sensitive to rejection. (Drob Report, 10). Moreover, these tests showed that Evans suffers from several personality disorders and syndromes, including dependent personality disorder, general anxiety disorder, and posttraumatic stress disorder. (Drob Report, 10). Rorschach testing of Evans showed significant impairment in reality testing and information processing that was so severe that it potentially predisposes him to psychosis. This can lead to impaired judgment and a failure to anticipate the consequences of his behavior. This testing also suggests that Evans' thinking can become odd and peculiar, especially when he is trying to understand people and their actions. (Drop Report, 11).

*39 Evans vulnerable, dependent and compliant personality was apparent early in his interaction with the police. While hospitalized for the gunshot wound that arose from the 2009 shooting, Evans was visited by Det. Melino who interviewed him about the shooting. During the interview he cried twice, explaining that he was having problems with his girlfriend who was scared and wanted to move out of town, with their child, because of the shooting. (PTH, 14). Specifically, Evans wanted Det, Melino to speak to his girlfriend and “to convince her not to move, you know, to stay supporting him.” (PTH, 14-15). Further, he wanted Det. Melino to speak to his doctor, “because he was upset that he's been there for, he said, three days.” (PTH, 17). It seems that Evans immediately and strangely believed that Det. Melino was a confidante of his who would help him with his personal problems - something that would be easier to understand if one imagined Evans as a child.

Importantly, the intellectual, cognitive, and personality deficiencies that Evans suffers from have all been linked to false confessions. Christine S. Scott-Hayward, Explaining Juvenile False Confessions: Adolescent Development and Police Interrogation, 31 Law & Psychol Rev 53, 56 [2007]; Saul M. Kassin et. al., Police-Induced Confessions: Risk Factors and Recommendations, 34 Law & Hum Behav 3, 22 [2010]. However, without expert testimony stating this, the jury had no way of knowing that these risk factors were present or relevant.

*40 2. Detective Mooney's single-minded approach to Evans' involvement with the 2006 shooting is an independent risk factor in producing a false confession

Standard police training instructs detectives and officers to, “interrogate only those suspects whose culpability they ‘establish’ on the basis of their initial investigation.” Saul M. Kassin et. al., Police-Induced Confessions: Risk Factors and Recommendations, 34 Law & Hum Behav 3, 6 [2010]. As a result, once the interrogation begins its purpose is not to, “discern the truth, determine if the suspect committed the crime, or evaluate his or her denials... the single-minded purpose of interrogation is to elicit incriminating statements, admissions, and perhaps a full confession in an effort to secure the conviction of offenders.” Saul M. Kassin et. al., Police-Induced Confessions: Risk Factors and Recommendations, 34 Law & Hum Behav 3, 6 [2010].
However, researchers have discovered that when investigators begin the interrogation process presuming the guilt of the suspect, “this presumption creates expectancies that guide the investigator's behavior” Brian Cutler et. al., Expert Testimony on Interrogation and False Confession, 82 UMKC L Rev 589, 610-11 [2014]. Specifically, it introduces confirmation biases and expectancy effects that predisposes them, “to ask confirmatory questions, use persuasive tactics, and seek confessions.” Saul M. Kassin et. al., Police-Induced Confessions: Risk Factors and Recommendations, 34 Law & Hum Behav 3, 6 [2010], citing Hill, Memon, & *41 McGeorge, 2008; Kassin, Goldstein, & Savitsky, 2003). With these biases in place, the investigator, “discounts and manages the suspect's denials, increases the suspect's anxiety, and, in the case of an innocent suspect, fulfills the prophecy by securing a false confession from the suspect.” Brian Cutler et. al., Expert Testimony on Interrogation and False Confession, 82 UMKC L Rev 589, 610-11 [2014]. This phenomenon has been demonstrated in research as well as through case studies of known false confessions. Id. As a result, “Investigator bias,' whereby officers focus on one suspect because they are convinced he or she is guilty,” is an independent risk factor increasing the likelihood of false confessions. Frances E. Chapman, Coerced Internalized False Confessions and Police Interrogations: The Power of Coercion, 37 Law & Psychol Rev 159, 164-65 [2013].

In this case, there is clear evidence that investigators approached Evans' interrogation with a belief in his guilt and a single-minded focus to illicit a confession. . . . All this information suggests that Det. Mooney had developed a belief that Evans was guilty of the 2006 homicide and that after sizing Evans up in the hospital following the 2009 shooting, he developed a plan to arrest Evans for the 2009 shooting so that he could then interrogate him about the 2006 homicide.

3. The police deployment of standard techniques of maximization and minimization, deception, and implied offers of leniency in the context of an isolating and lengthy interrogation are unique indicia of false confessions

The standard police technique utilized by the two officers who interrogated Evans - Det. Ragolia and Det. Mooney - include the following: long and isolating interrogation; use of deception; use of maximization and minimization, and use of implied offers of leniency. These are all techniques that scientific research has revealed to be linked with coerced and unreliable confessions. Specifically, scientific research demonstrates that the cumulative stress that these techniques create leads to a situation where the immediate gain of complying with an officer's *44 wish for a confession outweighs the uncertain long-term consequences of false confession. Christine S. Scott-Hayward, Explaining Juvenile False Confessions: Adolescent Development and Police Interrogation, 31 Law & Psychol Rev 53, 55 [2007], Brandon L. Garrett, The Substance of False Confessions, 62 Stan L Rev 1051, 1063-64 [2010].

a. Isolation and Interrogation Length

Two primary risk factors associated with false confessions are the length of the confession and the isolating manner in which they occur. Empirical studies have shown that most interrogations last around one hour, and that most proven false confessions arose out of interrogations lasting six hours or longer. Saul M. Kassin et. al., Police-Induced Confessions: Risk Factors and Recommendations, 34 Law & Hum Behav 3, 16 [2010]; Steven A. Drizin & Richard A. Leo, The Problem of False Confessions in the Post-DNA World, 82 NCL Rev 891, 948 [2004]. 

Further, the leading training manual on law enforcement questioning suggests that custodial interrogations should not last for more than four hours, acknowledging that lengthier interrogations are potentially coercive and increase the likelihood of eliciting involuntary compliance from a suspect who is seeking to escape the pressures of extended confinement and accusatory questioning. Fred Inbau, John Reid, Joseph Buckley and Brian Jayne, Criminal Interrogation and Confessions, 4th Ed., Aspen Publishers, p. 206 (2001)). Separately, the technique *45 of isolating suspects in small, private rooms during their interrogations enhances the coercive effects of standard police interrogation techniques and are an independent risk factor in producing false confessions. Saul M. Kassin et. al., Police-Induced Confessions: Risk Factors and Recommendations, 34 Law & Hum Behav 3, 6-7 [2010].

In this case, Evans' interrogation began at 11:00 a.m. and he was questioned through the day until almost midnight (PHT. 186-7). According to Det. Ragolia, Evans likely made his first incriminating statement sometime between 1:00 pm and 2:00 pm, roughly two to three hours after Evans was placed in the interrogation room. (TT 821, 828, 922). The time is uncertain because according to Det. Ragolia, Evans initial statement indicated that he had nothing to do with the shooting. (TT 814). Then, according to Det. Ragolia, he left the room - saw Det. Mooney and then reentered the room and requested another statement from Evans, which this time contained incriminating content. (TT 820-21). However, the time at which this occurred is not clear. According to Det. Ragolia, he Mirandized Evans and then asked for this second statement at 12:45 pm. However, according to Det. Mooney, he didn't arrive to the station until 1:00 pm and was told around 1:30 pm or 1:45 pm that Evans was now making an incriminating statement. (TT 922-24). Nevertheless, the statement that Evans gave did not implicate him as the responsible party in the crime. Therefore, at around 3:45 pm *46 (TT 925, 937), Det. Mooney initiated another interrogation that lasted until 5:00 or 5:30 pm (TT 831), which yielded a more incriminating statement. So Evans did not provide a statement that was used as his confession until approximately six hours after he was placed in the interrogation room. It's important to note, however, that Evans did not experience this statement as a confession. Based on conversations he had with Det. Ragolia and Det. Mooney, he was under the impression that the statement he made did not incriminate him and that he was free to go home. It wasn't until 7:45 pm, over eight hours after Evans was brought to the interrogation room, that Det. Mooney began questioning Evans about the 2006 homicide (PHT. 169). Further, it is important to note that in the entire time that he was interrogated, Evans did not eat any food except for one bite of a brownie. (PTH 74-75).

That Evans was interrogated for such an extraordinary length of time, and, further, that he was isolated in an interrogation room with barely anything to eat for that entire time, is strongly associated with false confessions. However, without expert testimony on these risk factors, the jury had no way of knowing their significance.

b. Maximization and Minimization

Maximization (also known as confrontation) and minimization is a push-pull process whereby investigators will alternate between confronting a suspect with *47 their absolute certainty of the suspect's guilt and suggesting to the suspect that perhaps there are circumstances that would mitigate or minimize their guilt. The confrontation thrusts “the suspect into despair” while the minimization “makes a confession seem like an expedient means of escape. Interrogators are thus trained to suggest to suspects that their actions were spontaneous, accidental, provoked, peer-pressured, drug-induced, or otherwise justifiable by external factors.” Saul M. Kassin et. al., Police-Induced Confessions: Risk Factors and Recommendations, 34 Law 8 Hum Behav 3, 18 [2010]. Brian Cutler explains: “While maximization techniques provide the pressure to confess, minimization techniques ease the way toward confession.” Brian Cutler et. al., Expert Testimony on Interrogation and False Confession, 82 UMKC L Rev 589, 608-09 [2014].

In this case, Det. Mooney freely admits that he employed the maximization and minimization techniques prior to any statement by Evans regarding the 2006 homicide:

I explained to him that you are going to get charged with murder as a result of this investigation. I don't know exactly what happened because I wasn't there, but I don't know whether you did it on purpose or by accident. I don't know. I wasn't there. Only way I'm gonna find out is if you tell me the truth about what occurred. I explained to him what mitigating meant. There were - perhaps there were circumstances beyond his control that caused this to happen. (TT, 960).

Mooney further explains: “We had a little bit more of an extended conversation where I again explained to him, I used the word ‘mitigating’ when I *48 was talking to him, and I explained to him what I meant about that. Once I thought that he understood what I was talking about, I said, ‘Just tell me what happened,’ and then he began to give a narrative about what happened.” (PHT, 178-79). Mooney is clear that before he asked Evans for his narrative, he told Evans, “I don't know whether you shot her on purpose or it was accidental. The only way that I'd find out is if you were to tell the truth about it.” (PHT, 231-32). Thus, Mooney suggested to Evans that if it was accidental, the version Evans ultimately adopted, it would not be so bad for him.

Although the interrogating officer in this case freely admits to using the interrogation technique of maximization and minimization, the jury was not allowed to know that scientific research has demonstrated that this technique significantly increases the possibility of a false confession.

c. Deception

The use of deception and presentation of false evidence in interrogations is a particular police technique that research has shown leads innocent people to confess to prohibited acts. Saul M. Kassin et. al., Police-Induced Confessions: Risk Factors and Recommendations, 34 Law & Hum Behav 3, 17 [2010]. False confessions expert Saul Kassin explains: “Basic psychological research reveals that misinformation renders people vulnerable to manipulation... Scientific evidence for human malleability in the face of misinformation is broad and pervasive. The forensic literature on confessions reinforces and extends this classic point, indicating that *49 presentations of false evidence can lead people to confess to crimes they did not commit.” Saul M. Kassin et. al., Police-Induced Confessions: Risk Factors and Recommendations, 34 Law & Hum Behav 3, 17 [2010].

Courts have recognized that such techniques, “particularly when applied to those of immature minds, may cause, with a substantial degree of probability, false confessions.” Singletary v Fischer, 365 F Supp 2d 328, 336-37 (EDNY 2005). See also People v Thomas, 22 NY3d 629, 639 (2014)(detailing how combination of police tactics can result in psychological coercion and render incriminating statements wholly unreliable).

There can be no doubt that that Det. Mooney used this technique as part of his interrogation with Evans. Mooney explained: “Commonly in the course of an interrogation and it's an accepted practice that detectives are allowed to use what's refer[red] to as a ruse in order to have the subject of the interrogation think that I know more than I actually do about what happened.” The purpose of this ruse, Mooney explained, is “to gain cooperation from the subject of the interrogation.” (TT 1064), In this case, Det. Mooney told Evans that several witnesses, when shown a photo array, had identified Evans as the shooter in the 2006 homicide although this was entirely untrue. Further, Mooney told Evans that these people would be coming to view him in a physical lineup the following morning. (TT 956; *50 PHT. 234). Det. Mooney reinforced this ruse by continuously telling Evans that he was certain of Evans' guilt. (TT 960).

Det. Ragolia suggested that he used a similar technique when questioning Evans about the 2009 shooting when he testified, that “I explained to him that we had witnesses that say that he was one of the shooters,” even though all the police had was a single child witness who identified Evans under classic suggestive circumstances. (PTH, 63).

Although both detectives used ruses in their interrogations, the jury was not allowed to find out that such ruses - particularly when utilized against an individual like Evans - are highly correlated with false confessions.

d. Implied Offers of Leniency

Social science researchers understand the technique of minimization to be particularly influential on inducing false confessions because it implies, without any explicit statement, that if a suspect provides a confession they will receive some kind of leniency. Saul M. Kassin et. al., Police-Induced Confessions: Risk Factors and Recommendations, 34 Law & Hum Behav 3, 18 [2010] Empirical research suggests that techniques that impliedly suggest leniency in exchange for a confession are a primary cause of false confessions. Richard A. Leo et. al., Bringing Reliability Back in: False Confessions and Legal Safeguards in the Twenty-First Century, 2006 Wis L Rev 479, 517 [2006].

*51 In this case, in addition to Det. Mooney's minimizing suggestion and associated implication of leniency - that Evans' involvement was accidental - Det. Mooney also created the impression that he was willing to provide Evans with leniency in exchange for his services as an informant. According to Det. Mooney, early in the interrogation Evans had expressed to Det. Ragolia that he wanted to be an informant. (PHT. 221-22). Mooney further explains: “One of his lines of response to me was that he was interested, he had seen on television where people sometimes would have a problem that get arrested become informants for the police... He thought that he could perhaps provide us with a lot of information on various subjects.” (PHT. 171-72). In response to Evans' offer to be an informant, Mooney told Evans: “Without you telling me the truth about things, there's no point even discussing being an informant at this point.” (PHT. 172). The statement suggests that if Evans provides a narrative in which he is the cause of the 2006 homicide, then Mooney would consider making him an informant with its implied benefits. Given that Mooney told Evans that he firmly believed Evans was guilty and fortified this stated belief with lies about the strength of the case, Evans was trapped into thinking that admitting the crime was the only way to avail himself of the opportunity to be an informant.

Det. Mooney took further action to make it seem as if he was taking Evans' offer to be an informant seriously by showing him - in direct response to his *52 request - photographs of two men who were involved in an unrelated homicide. (PHT. 224-25). Mooney explained that these were not the only photographs he showed Evans during the interrogation, and in fact, that he brought additional photos of unrelated cases for Evans to look at. (PHT. 174-75). Mooney explains: “He had already stated that he was interested in being an informant. These are a lot of open cases. Philip Diaz through all of the other non-fatal shootings. If he could have provided closure on some of those, I certainly would have tried to get that information from him.” (PHT. 239).

It is also important to note that it was at this point in the interrogation that Det. Mooney, for the first time, explained to Evans that he was under arrest and that he was not free to go home. (PHT. 170). Very significantly, it is also at this point, that Det. Mooney admits to having employed the minimization and maximization techniques described above - and it is at this point that Evans asked Det. Mooney if he could be an informant like the ones from TV. Given that Evans has borderline intellectual functioning, his personality is uniquely suggestible, and he is prone to misinterpret the intentions of others, it is understandable how Evans would be so compliant and influenced by these minimization and maximization techniques and why he might actually believe that Det. Mooney was now *53 employing him as an informant.8 For example, while Det. Mooney wrote out a statement for Evans admitting his culpability, he noticed that Mr. Evans, “was looking at those papers that were on the table. The photographs as well as the summaries that were attached to some of them.” (PHT. 186). Given the combination of techniques used, it is very likely that Evans believed that he was being used as an informant and that by stating that the shootings were accidental he would be helping the police while absolving himself of responsibility.9

4. The need for a false confessions expert in this trial was particularly acute as Evans behavior suggests that he was, in fact, producing a false confession that was being actively contaminated by the interrogating officers.

a. Evans' did not understand the severity of his situation and believed that he would be allowed to go home after providing statements that included the details interrogating officers' asked for.

. . . . Det. Mooney explained that even after Evans had given a recorded statement in which he claimed to be responsible for the 2009 shooting, Evans believed that he would be allowed to go home, “to put his baby to bed because his grandmother was baby-sitting.” (PHT. 169). . . . Even the trial judge noted that Evans' did not seem to understand the situation he was in following his initial confession, noting, “I guess it's still in his mind. He didn't think he was in custody, I guess because he's not experienced in the criminal justice system. I'm not exactly sure.” (PTH, 284-85).

Evans' reaction - and his lack of understanding of the severity of his situation - is consistent with innocent individuals with his psychological make-up experiencing the kind of interrogation that he did. Saul Kassin explains: “People with low IQ and high [suggestibility] scores are most vulnerable. They are substantially more likely to think they'll be able to go home after a confession and that they do not need legal advice if they are innocent.” Saul M. Kassin et. al., Police-Induced Confessions: Risk Factors and Recommendations, 34 Law & Hum Behav 3, 21 [2010]. Evans functions intellectually and emotionally much closer to *55 the level of a child. As a result, it would be easy for him to believe that if he simply told the police what they wanted to hear he would not suffer any consequences for it - particularly when the police reinforce this idea by telling him repeatedly that if he says that the shooting was accidental then they would understand, implying that he would not be in trouble.

The fact that even the trial court was perplexed by Evans' reaction to his admission of guilt is a clear indication that expert testimony on false confessions was essential for a jury. Evans' reaction is consistent with false confessions, but one would not think so if relying exclusively on common sense. Expert assistance, then, was necessary to explain how the specific factors present in Evans' interrogation - including his mental make-up - cause false confessions.

b. Based on police testimony Evans' behavior is entirely consistent with a false confession contaminated by police.

False confessions often appear authentic because they contain details consistent with commission of the crime. Richard A. Leo, Why Interrogation Contamination Occurs, 11 Ohio St J Crim L 193, 195-96 [2013]. However, these details can enter a suspect's narrative through a process of contamination where, “Police may, intentionally or not, prompt the suspect on he v the crime happened so that the suspect can then parrot back an accurate-sounding narrative.” Brandon L. Garrett, The Substance of False Confessions, 62 Stan L Rev 1051, 1053 [2010]. Leading false confessions expert Richard Leo explains:

*56 [T]he psychological design of American interrogation methods virtually dictate the contamination once detectives have selected an innocent target for questioning. American interrogation is a laboratory of confirmation bias. Contaminated confessions are the product of what we might call the confirmation bias effect of the assumptions, goals and techniques of guilt-presumptive, accusatory police interrogation. Richard A. Leo, Why Interrogation Contamination Occurs, 11 Ohio St J Crim L 193,211 [2013].

Importantly, however, police contamination of a given suspect's narrative is typically inadvertent and, “investigators do not appear to typically realize when they are contaminating confessions.” Id. Research indicates that even in cases in which it is known that confessions were contaminated, as the accused were subsequently exonerated by DNA evidence, detectives subjectively believed themselves to be assiduously avoiding contaminating the suspects' narratives. Brandon L. Garrett, The Substance of False Confessions, 62 Stan L Rev 1051, 1057 [2010]; Deborah Davis & Richard A. Leo, To Walk in Their Shoes: The Problem of Missing, Misunderstood, and Misrepresented Context in Judging Criminal Confessions, 46 New Eng L Rev 737, 767 [2012]. Detective Jim Trainum recounts a personal experience that demonstrates how unknowing contamination of a suspect's narrative can occur: “We had unintentionally fed her almost the entire case over a several hour period. And Kimberly - the woman - she would guess. She would guess a lot. And sometimes the guesses were right. And we wouldn't see the ones that weren't because ‘She was being evasive.’ ‘She was protecting someone.’ So that's how we wrote that off... But fortunately, we had accidentally let the tape continue to run, and we captured the whole thing on *57 video. But if we hadn't had that video, we never would have been able to go back years later and catch our mistakes.” As told to the Mid-Atlantic Innocence Project's Rachel Cicurel. Available at: http://www.exonerate.org/in-their-words/james-trainum (Last visited August 15, 2014).

In this case the entire interrogation consists of the interrogating detectives specifically asking Evans to change details in his statements so that they fit with the detectives beliefs of what occurred. Det. Mooney was clear that after reading Evans first statement - written by Det. Ragolia - that he wanted to further interrogate Evans because, “there were discrepancies between what he said and what we knew based on witness accounts.” (TT 925, 937, PHT. 145-46). Det. Mooney confronted Evans, telling him that he knew that he was lying about certain details in the written statement. (TT 830). According to Det. Mooney: “When I tried to explain to him what some of the things were that - thought were not true, he seemed to me very easily acquiesced to the idea.” (TT 927-28). The interrogation continued with Det. Mooney supplying Evans with the details he thought were true, and Evans agreeing to include them in his statement, [examples omitted]

These examples demonstrate that the narratives that are attributed to Evans came in direct response to police suggestion. The interrogating detectives are clear that they asked Evans to change details that did not conform to the evidence they had gathered and, in response, Evans complied. In addition, this interrogation featured detectives continuously lying about the case against Evans, implying that if he admits guilt he will be allowed to go home because the events were not his fault, and further insinuating that no harm would come his way because they would be using his services as an informant. Use of these techniques combined with the fact that Evans' mental functioning is closer to that of a compliant child makes it clear that his statements are not reliable. Many if not all details he supplied came from the officers. The lack of a videotape of the interrogation makes it impossible to know the true extent of contamination that occurred - but even based on the *60 detectives' own testimony, it is clear that his narratives were coached and suggested.

c. Based on the presence of so many indicia of false confessions, and evidence that the interrogation actually did induce a suggestible, compliant, confused state in the defendant, the defendant's statements cannot be considered reliable.

It is not in question that Evans is mentally handicapped and has a highly suggestible and compliant personality. It is not in question that Evans was held in an isolated interrogation room for over twelve hours as part of the interrogation that yielded his confessions. It is also not in question that detectives used techniques such as maximization and minimization, ruses, and implied offers of leniency in their interrogation. Further, it is not in question the detectives supplied Evans most of the details that he included in his statements. That all these factors appear together is hugely significant and results in statements that cannot be considered reliable. “Employing standard interrogation methods on mentally handicapped suspects and conducting lengthy interrogations... appear to play a major part in precipitating untrustworthy confessions. When either of these practices are employed, there is a very substantial likelihood that suspects will provide the answers sought by their interrogators, regardless of their own beliefs in the truth of those answers.” Welsh S. White, What Is an Involuntary Confession Now?, 50 Rutgers L Rev 2001, 2042-43 [1998].

. . . . It is only after Evans is exposed to a panoply of police techniques that are known to induce false confessions that Evans makes an admission connected to the 2006 homicide. Given that Evans is functioning at the mental level of a child, with no clear understanding of the severity of his situation, with a uniquely compliant and suggestible personality it is very likely, then, that he was simply providing Det. Mooney with the statement that Det. Mooney wanted to hear so that Evans could go home to his grandmother and baby. At minimum, however, there is no way to understand this statement as reliable given the number of indicia of false confessions that are present.

5. Lack of false confessions expert altered the entire trial by presenting the jury with a skewed world in which social science research about false confessions does not exist.

a. A lack of testimony from a false confessions expert was used by the prosecution to introduce various theories and ideas about false confessions that have no basis in fact.

Scientific research is clear that certain factors strongly increase the likelihood of false confessions. Although many of these factors are present in this case, Evans was not allowed to introduce any of this research as evidence. However, the prosecutor, particularly in their closing argument, introduced various theories about false confessions that have no basis in any scientific research, but rely exclusively on conventional wisdom that is not accurate in this case. These *64 theories stood as uncontested thus creating the impression that the prosecutor's arguments were somehow credible.

i. Length of interrogation
It is well established that the length of an interrogation is a crucial risk factor in false confessions. Nevertheless, because no expert was allowed to testify on this subject, the prosecutor was able to state in her closing summation: “In all, the whole thing took from the minute he gets to the precinct until the end of the second video is twelve hours. Certainly not any unnecessary delay and nothing that would overcome somebody's will.” (TT 1497). The idea that being held in an interrogation room for twelve hours is not a factor that increases the likelihood of false confessions is simply false. As explained above, average interrogations last one hour, and interrogations that last over six hours are highly correlated with false confessions.

ii. Individual characteristics
The prosecutor also challenged scientifically established knowledge about the role that intellectual and cognitive functioning and personality have on the likelihood of a given suspect providing a false confession. While research cited above - including by the Court of Appeals in Bedessie - establishes that individuals with low intellectual and cognitive functioning and suggestible personalities are uniquely vulnerable to providing false confessions, the prosecutor *65 states the following in her summation: “None of these traits would ever suggest that he would falsely confess, if anything, they help to explain why he went to kill a man who he felt had humiliated him, fire indiscriminately at him down a crowded street and then truthfully confessing to it.” (TT 1507-08). The prosecutor explored this theme again suggesting that rather than making defendant more vulnerable to false confession, his low intelligence, “explains why he committed these two crimes in broad daylight with lots of people looking and why he thought he could talk his way out of them and didn't refuse to talk to the police.” (TT 1500-01).

When defense counsel attempted to introduce evidence that such traits do suggest that a person might falsely confess, as an overwhelming amount of scientific research demonstrates, the trial judge refused. (TT 1349). As a result, the jury was presented with a world in which low intelligence actually decreases the likelihood of a false confession - a world exactly opposite to the one we live in.

iii. Minimization and Maximization Techniques

The prosecutor also distorted the significance of the techniques of minimization and maximization, which Det. Mooney freely admitted to having used in his interrogation of Evans, and which extensive research links to the production of false confessions. This research explains that, for example, when an interrogator insists that they know a suspect is guilty, this event induces incredible *66 stress in the suspect, makes them feel “trapped” and “hopeless” irrespective of whether or not they are guilty. Brian Cutler et. al., Expert Testimony on Interrogation and False Confession, 82 UMKC L Rev 589, 608-09 [2014]. Nevertheless, the prosecutor takes the scientifically unsupportable position that, “[c]onfronting [Evans] with the fact that witnesses have identified him is not psychological coercion. No[where] near what it would take an innocent person no matter what their IQ to confess to shooting a gun in a crowded basketball court.” (TT, 1472-73). The prosecutor goes on to say, contrary to expert findings, that only a guilty person would experience such maximization techniques as coercive:
An innocent person being told we're going to put you in a lineup, witnesses from that homicide will see you, is going to say, Great, put me in a lineup, I'm not the right guy, you'll see there is no way I'm going to get picked out. An innocent person wouldn't hear that he was about to be put in a lineup and then confess to a murder.
(TT 1499).

. . . . Of course, these characterizations by the prosecutor demonstrate why expert testimony was so essential in this case. The prosecution is presenting theories *68 about how innocent and guilty people act in this kind of situation. Scientific research demonstrates that these theories are wrong. However, because this scientific research was excluded, the jury was only exposed to those inaccurate accounts, without any corrective information.

b. The prosecutor was allowed to mischaracterize the significance of the videotaped statements while actual expertise on the videotaping was excluded

The prosecutor repeatedly suggests that the videotape of Evans statement shows that he is relaxed, which means there was no coercion in the interrogation. (TT, 1495-96). In cross-examination of Dr. Drob, the prosecutor was allowed to ask: “Isn't it true according to the literature that the videotape is the best evidence of an individual at the time that we're talking about, if we're talking about his competency at that time the video is the best evidence of that, is it not?” (TT 1302). Dr. Drob responded: “It's certainly very good evidence because it's a film of the individual at the time you're considering, yes.” (TT 1302). The prosecutor then proceeded to use Dr. Drob's testimony to suggest that Evans was not anxious in the video and, by implication, was not coerced.

The reality is, unfortunately, that these kinds of ‘final-hour’ tapings, which are commonly made at the end of lengthy interrogations, are not useful measures of what actually occurred during an interrogation. In fact, the highest courts in at least seven states have limited admissibility of recorded statements in such *69 situations and have condemned such final-hour taping of interrogations.  . . .  .

Nevertheless, during the redirect of Dr. Drob, defense counsel was not allowed to ask Dr. Drob about the scientific research related to such final hour tapings: . . . . the videotape is not a valuable measure of Evans likelihood of having confessed falsely. But, the jury was not allowed to be exposed to this reality.

c. Cumulative effect of judge's rulings was to create a fantasy world where scientific evidence about false confessions doesn't exist and that the only source of information about factors that contribute to false confessions was the prosecutor's inaccurate theories

Extensive scientific research suggests that certain factors substantially increase the likelihood of false confessions. Many of these factors were present in this trial. However, the scientific evidence that links these factors with false confessions was systematically excluded. Consequently, although the prosecution's case was based almost entirely on Evans' confessions, Evans was not allowed to illuminate to the jury that various indicia of false confessions were present in his interrogation.

As a result, the prosecutor could credibly state the following in summation:
*72 There is absolutely no shred of evidence presented at this trial, by either side, that the defendant falsely confessed. No one ever said it... There is absolutely no evidence whatsoever that the defendant was coerced to make this statement or any evidence that he had gotten his information from anywhere other than his own memory of the events... You can only base your verdict on evidence and here there was nothing presented to you that in any way suggest a false confession.
(TT 1500)

In other words: the prosecutor was able to capitalize on the judge's erroneous ruling's to create the false impression that nothing in Evans' case suggested that a false confession may have occurred. Yet, extensive evidence does suggest, given the unique factors present in this case, that a false confession was likely.

Defense counsel objected to the prosecutor's summation, arguing: “No one presented evidence that the confession was false. I was prevented from doing that so this reopens the issue about a false confession expert and her exploiting the fact that I wasn't able to put on a false confession expert, so I object to that. I'm just amplifying my grounds and that is also a basis for a mistrial.” (TT 1514). The trial court's only response was “Okeydokey.” (1514).

There is no way that, in light of this situation, Dan Evans received a fair trial. This case featured numerous indicia of false confessions that courts have found require explanation by a false confessions expert to a jury. The jury was denied access to this vitally important scientific research and, thus, was presented *73 with a world in which no such research existed. As a result, the prosecutor was able to blatantly lie about the causes of false confessions and the likely behavior of those subject to the kind of techniques employed by the police in this case. With no opportunity to effectively rebut these erroneous claims, Evans opportunity for a meaningful defense and his right to a fair trial was destroyed.