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Defendant Should Have Been Allowed to Present Expert Evidence Re: False Confessions—Criteria Explained—New Trial Ordered

The Second Department addressed several significant issues in a lengthy decision ordering a new trial in a murder case (which will be the defendant’s fifth trial in the matter). Although the defendant’s girlfriend had testified against the defendant in prior proceedings, she feigned a loss of memory and refused to testify in the most recent trial. County Court properly held that the girlfriend was “unavailable” within the meaning of Criminal Procedure Law 670.10 thereby allowing her prior testimony to be read into evidence. County Court should not, however, have allowed the People to amend the bill of particulars which, in response to the defendant’s alibi evidence presented in prior trials, extended the time period in which the crimes were alleged to have occurred. The focus of the decision, and the reason for reversal, was County Court’s error in excluding defendant’s expert testimony about false confessions. The confession was the principal evidence in the People’s case and was the product of seven hours of interrogation, 75 minutes of which was videotaped. The Second Department addressed the issue in depth:

Here … the proffered expert testimony was relevant to this particular defendant and the particular circumstances of the case, including the approximately seven-hour interrogation, the videotaped confession, and the lack of physical evidence or eyewitness testimony linking the defendant to the crime … .

In addition to reports from two relevant experts, the County Court was presented with a 75-minute video of the defendant’s late-night confession, taken after the defendant was in custody for almost 14 hours and interrogated for approximately 7 of those almost 14 hours. Among other things, the video shows that the defendant, whose hands were cuffed in front of him during the interview, spoke slowly and sat in a slouched position for a substantial portion of the interview. Further, the officers repeatedly employed suggestive and leading questions, fed the defendant specific details related to the crime scene, and used rapport-building techniques. * * *

Upon our consideration of the submissions and opinions of both experts, we find that the defendant made a thorough proffer that he was “more likely to be coerced into giving a false confession” than other individuals. His proffer clearly indicated that he was intellectually impaired, highly compliant, and suffered from a diagnosable psychiatric disorder, and also that the techniques used during the interrogation were likely to elicit a false confession from him … . Moreover, in light of the foregoing, the fact that no one had videotaped the nearly six hours of the interrogation that had been conducted before the confession was made raises significant concerns. People v Days, 2015 NY Slip Op 06731, 2nd Dept 9-2-15

 

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Defense Counsel’s Failure to Investigate the Victim’s Medical Condition (Which Would Have Allowed More Effective Cross-Examination of the People’s Expert and the Victim), Failure to Object to Testimony Which May Have Been More Prejudicial than Probative (and which Clearly Required a Jury Instruction Limiting Its Use), and Failure to Object to Improper Comments Made by the Prosecutor, Deprived Defendant of Effective Assistance of Counsel

In a sexual abuse case based entirely on the victim’s testimony (alleging anal intercourse), the Third Department determined defense counsel’s failure to investigate the nature of the victim’s bleeding disorder (which could have called into question the prosecution’s expert’s opinion that victims of sexual abuse, like the victim here, often show no signs of injury), the failure to object to the testimony of the defendant’s spouse alleging his preference for anal intercourse (the prejudicial effect may well have outweighed the probative value—at the very least a limiting instruction should have been requested as to the jury’s limited use of such evidence), and the failure to object to improper comments made by the prosecutor in summation (appealing to jurors’ sympathy, exhorting the jurors to fight for the victim), required reversal and a new trial:

Had counsel sought to inform himself about the victim’s VWD [bleeding disorder] diagnosis, he likely would have become aware of medical experts such as Howard Snyder, a board-certified doctor of emergency medicine who submitted an affidavit in support of defendant’s postconviction motion. Snyder averred that “[t]he presence of VWD [in the victim] would have made the presence of bruising or bleeding during forceful, non-consensual anal intercourse more likely than in [a] patient without VWD.”Undoubtedly, expert testimony similar to Snyder’s would have done much to increase the significance of the SANE [sexual assault nurse examiner] report’s lack of physical findings and would have provided a powerful basis for cross-examination to counter the damaging effects of the SANE’s opinion testimony.

Counsel’s failings were magnified by the fact that the People’s only direct evidence of defendant’s guilt was the victim’s testimony, making counsel’s efforts to undermine her credibility of paramount importance. Indeed, there were no other witnesses to the alleged sexual assaults and no DNA evidence was recovered. In similar situations, the Second Circuit, applying New York law, has repeatedly held that “when a defendant is accused of sexually abusing a child and the evidence is such that the case will turn on accepting one party’s word over the other’s, the need for defense counsel to, at a minimum, consult with an expert to become educated about the vagaries of abuse indicia is critical. The importance of consultation and pre-trial investigation is heightened where, as here, the physical evidence is less than conclusive and open to interpretation” (Eze v Senkowski, 321 F3d 110, 129 [2d Cir 2003] …). Thus, the record establishes that, without any justification, counsel prejudiced defendant by “s[itting] on his hands, confident that his client would be acquitted” rather than “consult[ing with] and be[ing] prepared to call an expert” … , whose testimony then would have been “available [to] assist[] the jury in its determination” … .

Counsel’s conduct further fell below our standard of meaningful representation because he failed to object to, and request a limiting instruction to guide the jury in assessing, the testimony of defendant’s former spouse regarding defendant’s sexual preferences. Counsel sat mute while the witness testified that, upon reading the victim’s statement to police, it struck her that it contained details “only someone who had been intimate with [defendant] would know,” including what she then proceeded to describe as defendant’s preference for anal intercourse during their consensual sexual relationship [. We do not think that counsel’s failure to object to this testimony can be excused on the ground that such an objection had “little or no chance of success” … . “Not all relevant evidence is admissible as of right. . . . Even where technically relevant evidence is admissible, it may still be excluded by the trial court in the exercise of its discretion if its probative value is substantially outweighed by the danger that it will unfairly prejudice the other side” … .

In our view, a legitimate question exists as to whether the prejudicial effect of the former spouse’s testimony regarding defendant’s sexual preferences substantially outweighed its probative value, especially considering that she testified that she and defendant had not been sexually active for several years prior to the alleged assaults on the victim. Supreme Court should have had the opportunity to consider this question and make an appropriate ruling in the exercise of its discretion. The court would have done so, but for counsel’s inexplicable failure to object. In the event that the court had determined this testimony to be admissible, counsel could then have requested a limiting instruction, as the lack thereof would “permit[] the jurors to perhaps consider [the former spouse’s statements] as proof of defendant’s propensity” to engage in the sexual acts charged here … . * * *

Finally, we note with disapproval certain remarks made by the prosecutor during summation, to which counsel did not object. The prosecutor improperly attempted to appeal to the jury’s sympathy by asking the jurors to consider how they would have felt if they “were in [the victim’s] shoes” … . The prosecutor also exhorted the jurors to advocate for the victim during deliberations by using the phrase “you fight for her” … . While counsel’s failure to object to these remarks does not, in and of itself, amount to ineffective assistance of counsel, it further illustrates counsel’s representation, the cumulative effect of which deprived defendant of meaningful representation, especially “where, as here, the determination of guilt . . . hinged on sharp issues of credibility” … . People v Cassala, 2015 NY Slip Op 06176, 3rd Dept 7-16-15

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Allowing a Detective Who Was Involved in the Investigation of Defendant’s Case to Testify as an “Expert” Was Error (Harmless Here However)–Although the Detective Was Ostensibly to Testify as an Expert Who Could “Translate” Code Words Used in Recorded Conversations, His Testimony Extended into Many Areas Which Did Not Involve Code Words, Thereby Imbuing HIs Entire Testimony with an Aura of Expertise—Such Improper “Expert” Testimony Usurps the Jury’s Role

Although the error was deemed harmless here, the Court of Appeals, in a full-fledged opinion by Judge Lippman, determined it was error to allow a detective, who was involved in the underlying murder investigation, to testify as an “expert.” The detective was asked to explain the meaning of so-called “code words” used in recorded conversations admitted into evidence. But it was clear that the trial court allowed the detective to testify as an “expert” on matters that had nothing to do with translating code words.  As a result, the detective’s testimony was imbued with an aura of expertise which could have improperly added weight to his testimony in the eyes of the jury.  Because this issue has not been addressed by New York courts, the Court of Appeals turned to two Second Circuit cases which held the improper “expert” testimony, on topics not beyond the “ken of the jurors,” usurped the jury’s role:

We have, for example, permitted expert testimony by a police sergeant respecting the way in which street-level drug sales are transacted to help a jury understand why the failure to recover drugs or marked buy-money from an individual apprehended in a buy-and-bust operation is not necessarily indicative of the accused’s misidentification (People v Brown, 97 NY2d 500 [2002]). It is instructive to note, however, that the testimony of the sergeant in Brown was carefully limited by the trial court to a discrete issue beyond the ken of ordinary jurors, and that the sergeant was not himself involved in the underlying investigation and gave no testimony as to what had actually occurred during the buy-and-bust there involved. The situation is very different where a police officer, qualified as an expert, has participated in the investigation of the matter being tried and, with the mantel of an expert steeped in the particulars of the case, gives seemingly authoritative testimony directly instructive of what facts the jury should find. Our cases have not dealt with this problematic scenario, but those of the Second Circuit, most notably United States v Mejia (545 F3d 179 [2d Cir 2008]) and United States v Dukagjini (326 F3d 45 [2d Cir 2002]), have.

In both of those cases, law enforcement officers involved in the investigations upon which the defendants’ prosecutions were founded were duly qualified as experts but permitted to testify as apparent experts beyond their expertise and upon matters well within the grasp of lay jurors. In exploring the full reach of the permission they had been afforded, they became summation witnesses, instructing the jury comprehensively and with an aura of expertise, as to how the particular factual issues presented in each case should be resolved. This, said the Mejia court, amounted to a “usurpation of the jury’s role” (545 F3d at 191), and was objectionable as well, in both Mejia and Dukagjini, for operating to inject hearsay into the evidentiary mix and to abridge the defendants’ constitutional right to confront the witnesses against them; both case agent witnesses, as putative experts, had premised their testimony largely on inadmissible out-of-court statements, even when that testimony ceased to be expert and went only towards proving particular facts. People v Inoa, 2015 NY Slip Op 04790, CtApp 6-10-15

 

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The Prosecutor’s Acting As an Unsworn Witness (Suggesting He Had Been Present at a Trial In Which the Defense Expert Had Lied) and The Prosecutor’s Repeated Questioning of the Expert and Another Defense Witness About Their Alleged Lying Deprived Defendant of a Fair Trial on the Murder Count

The Second Department reversed defendant’s murder conviction because of the misconduct of the prosecutor in questioning the defense expert and another defense witness.  The prosecutor acted as an unsworn witness by suggesting he was present in a trial where the defense expert lied and the prosecutor improperly and repeatedly questioned the expert and another defense witness about their alleged lying:

The prosecutorial misconduct during the voir dire questioning and cross-examination of the defense’s expert included statements that the expert had repeatedly lied to judges in other cases and during his testimony in the instant case. In addition, the prosecutor presented himself as an unsworn witness at the trial, suggesting that he had been present at the trial of another case at which the defendant’s expert had lied. The prosecutor furthermore repeatedly questioned another defense witness about lying. The cumulative effect of this misconduct … unfairly deprived the defendant of the ability to present his defense of extreme emotional disturbance to the charge of murder in the second degree … . People v Martinez, 2015 NY Slip Op 03568, 2nd Dept 4-29-15

 

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Forcing Defendant to Go to Trial When His Expert on the Intoxication Defense Was Not Available Rendered Defendant’s Guilty Plea Involuntary and Coerced

The Third Department vacated defendant’s plea, finding that it was involuntary and coerced.  Defendant admitted shooting and killing his brother, but it was clear that defendant was highly intoxicated at the time of the offense.  County Court set the matter down for trial at a time the defendant’s expert on the intoxication defense was not available, after the court concluded there was no merit to the defense. During the plea colloquy the defendant answered “to the best of my recollection” when asked whether he had caused the death of his brother. Under these circumstances the waiver of appeal and the failure to preserve the error did not preclude review:

…[D]efendant’s challenge to the voluntariness of his plea survives his uncontested waiver of the right to appeal but is unpreserved for our review in the absence of a motion to withdraw his plea … . That said, we nonetheless are persuaded that the narrow exception to the preservation requirement was triggered here, as defendant’s qualified response — “[t]o the best of my recollection” — to County Court’s key question during the course of the plea allocution cast doubt upon his guilt and/or otherwise called into question the voluntariness of his plea, thereby obligating County Court to undertake further inquiry prior to accepting defendant’s plea … — particularly in view of the transcripts of the 911 call, wherein defendant clearly indicated that he had been drinking on the day of the shooting, and defendant’s Town Court arraignment, wherein the Town Judge expressed concerns regarding defendant’s ability to understand the charges against him due to his apparent level of intoxication. We also find merit to defendant’s claim that his plea was coerced. As noted previously, defendant entered his plea of guilty in response to the prospect of proceeding to trial within a matter of days and without an expert witness, and such plea was entered on the heels of County Court’s questionable, pretrial analysis as to the viability of defendant’s asserted intoxication defense. Under these circumstances, we are unable to conclude that defendant’s guilty plea was knowing, intelligent and voluntary. People v Lang, 2015 NY Slip Op 02809, 3rd Dept 4-2-15

 

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Defendant Should Have Been Allowed to Present Expert Opinion-Evidence About the Reliability of Eyewitness Identification

The Fourth Department, over a two-justice dissent, determined defendant should have been allowed to present expert evidence about the reliability of eyewitness identifications.  The court explained the analytical criteria:

“Because mistaken eyewitness identifications play a significant role in many wrongful convictions, and expert testimony on the subject of eyewitness recognition memory can educate a jury concerning the circumstances in which an eyewitness is more likely to make such mistakes, courts are encouraged . . . in appropriate cases’ to grant defendants’ motions to admit expert testimony on this subject” … , the Court of Appeals established a two-stage inquiry for considering a motion to admit expert testimony on eyewitness identification … . “The first stage is deciding whether the case turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime’ … . If the trial court finds itself with such a case, then it must proceed to the second stage, which involves the application of four factors. The court must decide whether the proposed testimony is (1) relevant to the witness’s identification of defendant, (2) based on principles that are generally accepted within the relevant scientific community, (3) proffered by a qualified expert and (4) on a topic beyond the ken of the average juror’ … . If, on the other hand, sufficient evidence corroborates an eyewitness’s identification of the defendant, then there is no obligation on the part of the trial court to proceed to the second stage of analysis, because testimony concerning eyewitness identifications is unnecessary” … .

Here, the People concede that this case hinges upon the accuracy of the eyewitness’s identification of defendant, and we agree with defendant that there was little or no corroborating evidence connecting him to the crime … . People v McCullough, 2015 NY Slip Op 02589, 4th Dept 3-27-15

 

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Criteria for Presentation of Defense Expert Re: the Accuracy of Eyewitness Testimony Explained (Criteria Not Met Here)

In finding that the defendant’s request to present expert evidence on the accuracy of eyewitness testimony was properly denied, the Second Department explained the relevant criteria:

Where a case “turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime, it is an abuse of discretion for a trial court to exclude expert testimony on the reliability of eyewitness identifications if that testimony is (1) relevant to the witness’s identification of defendant, (2) based on principles that are generally accepted within the relevant scientific community, (3) proffered by a qualified expert and (4) on a topic beyond the ken of the average juror” … . Here, however, there was sufficient corroborating evidence connecting the defendant to the crimes to obviate the need for expert testimony * * *.  People v Granger, 2014 NY Slip Op 08349, 2nd Dept 11-26-14

 

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Formal Training Not Necessarily Required to Qualify an Expert

In affirming the conviction, the Second Department explained the discretionary criteria for qualifying an expert at trial, which does not necessarily depend upon formal training:

The qualification of a witness to testify as an expert is a matter that rests in the sound discretion of the trial court, and the court’s determination should not be disturbed on appeal in the absence of a serious mistake, an error of law, or an improvident exercise of discretion … . “The competence of an expert in a particular subject may derive from long observation and real world experience, and is not dependent upon formal training or attainment of an academic degree in the subject” … . People v Dorvilier, 2014 NY Slip Op 07517, 2nd Dept, 11-5-14

 

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Testimony of Defense Expert About Reliability of Eyewitness Identifications Properly Precluded/Criteria for Such Testimony Explained

The Second Department determined Supreme Court appropriately denied the defendant’s request to present expert testimony about the reliability of eyewitness identifications because there was sufficient corroborating identification evidence.  The court explained the relevant criteria:

Where a case “turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime, it is an abuse of discretion for a trial court to exclude expert testimony on the reliability of eyewitness identifications if that testimony is (1) relevant to the witness’s identification of defendant, (2) based on principles that are generally accepted within the relevant scientific community, (3) proffered by a qualified expert and (4) on a topic beyond the ken of the average juror” … . Here, there was sufficient corroborating evidence connecting the defendant to the crimes to obviate the need for expert testimony, including, inter alia, independent identifications by two witnesses other than the three complainants, surveillance videos, and the defendant’s incriminatory statements to police officers … . People v Rhodes, 2014 NY Slip Op 01469, 2nd Dept 3-5-14

 

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Expert Evidence to Explain an Adolescent’s Reactions to Sexual Abuse Properly Admitted

The Second Department determined expert testimony about “adolescent sexual abuse” was properly admitted in a sex-crime trial to explain delay in reporting, imprecise memory, accommodation, and a “flat affect” during testimony:

“Expert testimony is properly admitted if it helps to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror'” … . “[E]xpert testimony regarding rape trauma syndrome, abused child syndrome or similar conditions may be admitted to explain behavior of a victim that might appear unusual or that jurors may not be expected to understand” … . The expert’s testimony was properly admitted to explain the issue of delayed disclosure and to counter the defense claim that the complainant fabricated the sexual abuse allegations when her parents objected to her having a boyfriend … . The testimony was also properly admitted to explain why the complainant did not recall with specificity when certain of the alleged incidents occurred, and why victims of adolescent sexual abuse may manifest a “flat affect” when testifying. The testimony was “general in nature and does not attempt to impermissibly prove that the charged crimes occurred” … . To the extent the expert testified as to an abuser’s behavior patterns, such testimony was admissible to help explain “why victims may accommodate abusers and why they wait before disclosing the abuse” … . People v Gopaul, 2013 NY Slip Op 08659, 2nd Dept 12-26-13

 

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