FALSE CONFESSIONS – New York Appellate Digest

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

The defendant claimed that his confession was involuntary because he was physically abused by the interrogating officer (O’Leary). After his conviction for depraved indifference murder the defendant brought a motion to vacate the conviction on the ground that the interrogating officer had been sued for allegedly extracting a false confession and the prosecution did not provide that “Brady” material to him. In reversing the trial court’s denial of the motion to vacate and remitting the matter for a hearing, the Second Department wrote an exhaustive overview of the law concerning “Brady” material in New York. Although rather long, the court’s explanation is provided here because of its clarity:

A defendant is entitled, under the state and federal constitutions, “to discover favorable evidence in the People’s possession material to guilt or punishment”)…. Indeed, the law requires that Brady material be produced whether or not the defendant requests any such evidence …. To establish a Brady violation, the “evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued” because the evidence was material … .

Here, the allegedly suppressed evidence clearly fell within the ambit of the prosecutor’s Brady obligation because it constituted impeachment evidence…. Moreover, the People’s failure to disclose the existence of the civil action may have denied the defendant the opportunity to conduct an investigation leading to additional exculpatory or impeaching evidence , for instance, providing a basis for the disclosure of police personnel records otherwise unavailable … .

“In New York, where a defendant makes a specific request for a document, the materiality element is established provided there exists a reasonable possibility’ that it would have changed the result of the proceedings” ….”Absent a specific request by defendant for the document, materiality can only be demonstrated by a showing that there is a reasonable probability’ that it would have changed the outcome of the proceedings” …. Here, the record does not demonstrate that the defendant made a specific request for the allegedly suppressed information. Nevertheless, we find that there was a “reasonable probability” that disclosure of the lawsuit would have changed the outcome of the defendant’s trial. The primary evidence at trial establishing the defendant’s identity as the murderer was his confession. The other evidence tying him to the crime was weak, consisting of testimony that he was seen with the victim shortly before she disappeared. Since the credibility of the detectives who obtained the defendant’s confession was of central importance in the case, the nondisclosure was material … .

Accordingly, a hearing is necessary to determine whether the District Attorney’s office had sufficient knowledge of the suit against O’Leary so as to trigger its obligations under Brady. Evidence subject to disclosure under Brady includes evidence “known only to police investigators and not to the prosecutor”…, and, therefore, “the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in th[is] case, including the police” … ;This rule is based upon the principle that “[t]he government cannot with its right hand say it has nothing while its left hand holds what is of value” …. Here, the attorney’s affirmation submitted in opposition to the defendant’s motion, which was based only on a review of files, is insufficient to establish that no one to whom the obligation under Brady extended, other than perhaps O’Leary himself …, had knowledge of the civil action at any time during which the prosecution’s Brady obligation was ongoing. People v Garrett, 2013 NY Slip Op 03498, 2nd Dept, 5-15-13

Tag Archive for: FALSE CONFESSIONS

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

Existence of Brady Material Concerning Law Suit Against Interrogating Officer for Eliciting a False Confession Required Hearing on Motion to Vacate Judgment of Conviction

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