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THE JUDGE’S RESTRICTIONS ON THE TESTIMONY OF THE DEFENSE “FALSE CONFESSION” EXPERT, AND THE DENIAL OF DEFENDANT’S REQUEST FOR A “PROMISE BY POLICE” JURY INSTRUCTION REQUIRED A NEW TRIAL (SECOND DEPT).

The Second Department, reversing defendant’s murder conviction and ordering a new trial, determined the judge erroneously restricted the defense false-confession-expert’s testimony and erroneously denied defendant’s request for a “Promise by Police” jury instruction (defendant testified the police made promises to him during the 12-hour interrogation):​

… [T]he court limited the scope of the defendant’s expert’s testimony by precluding the mention of a study by the Innocence Project, which found that of the more than 300 people who had been, at the time, exonerated by DNA, approximately 25% of those people had confessed, and a study conducted at the University of Michigan Law School, where researchers found that of the 1,405 exonerations that took place between 1989 and 2012, 10% of the people had falsely confessed, and people with mental illness or intellectual disability were overrepresented in those who had done so. Here, the court improperly concluded that those studies were not relevant … .

…[T]he studies were relevant to illustrate the risk of false confessions, and specifically, a study related to mental disability is proper in this case where the defendant was found to have an IQ lower then 93% of individuals in his age group. … [T]he court limited the scope of the expert’s testimony as to existing research on false confessions … . The court further compounded this error by denying admission of a portion of the defendant’s expert’s curriculum vitae, ruling, without basis, that the titles of certain articles listed therein would be inappropriate for a jury to see, thereby depriving the jury of information relevant to the credibility and weight of the expert’s testimony … . Moreover, these errors allowed the People’s expert to testify that research in the area of false confessions is scant and that the study of false confessions and the evaluation of psychological vulnerabilities was a “primitive subdiscipline.” … [T]he court also scheduled the trial on a date that the defendant’s expert was not available. Although the use of video recorded testimony is not error, “[l]ive televised testimony is certainly not the equivalent of in-person testimony” … . As such, the jury was able to observe the in-court testimony of the People’s expert, but was only able to observe the defendant’s expert on a television screen, and even that testimony was edited to exclude the aforementioned studies. People v Grigoroff, 2025 NY Slip Op 07400, Second Dept 12-31-25

​Practice Point: Consult this decision for insight into how restrictions placed on an expert’s testimony can create the impression there is little or no support for the expert’s conclusions in the relevant literature. Here, because the defense expert was not allowed to discuss the studies upon which his “false confession” conclusions were based, the People’s expert was able to tell the jury “false confession” research is “scant” and is a “primitive subdiscipline.” In addition, the trial was scheduled when the People’s expert could attend, but the defense expert could not, forcing the defense expert to submit videotaped testimony.

 

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