People v. Kowalski

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Opinion Robert P. Young, Jr. Michael F. Cavanagh
Marilyn Kelly
Stephen J. Markman
Diane M. Hathaway
Mary Beth Kelly
Brian K. Zahra
FILED JULY 30, 2012
STATE OF MICHIGAN
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 141932
JEROME WALTER KOWALSKI,
Defendant-Appellant.
BEFORE THE ENTIRE BENCH
MARY BETH KELLY, J.
This case requires that we determine whether expert witness testimony regarding
interrogation techniques and psychological factors claimed to generate false confessions
is admissible under MRE 702 and MRE 403 and whether exclusion of this testimony
violates the Sixth Amendment right to present a defense. The circuit court excluded the
testimony of two experts regarding the occurrence of false confessions and the police
interrogation techniques likely to generate them as well as the psychological
characteristics of defendant that allegedly made him more susceptible to these techniques.
We hold that the circuit court did not abuse its discretion by excluding the expert
testimony regarding the published literature on false confessions and police interrogations
on the basis of its determination that the testimony was not reliable, even though the
subject of the proposed testimony is beyond the common knowledge of the average juror.
We also hold, however, that the circuit court abused its discretion by excluding the
proffered testimony regarding defendant’s psychological characteristics because it failed
to consider this evidence separately from the properly excluded general expert testimony
and therefore failed to properly apply both MRE 702 and MRE 403 to that evidence.
Accordingly, we remand this case to the circuit court for it to determine whether evidence
of defendant’s psychological characteristics is sufficiently reliable for admissibility under
MRE 702. We further hold that the circuit court’s application of MRE 702 did not
violate defendant’s constitutional right to present a defense.
I. FACTS AND PROCEDURAL HISTORY
In May 2008, the brother and sister-in-law of defendant, Jerome Walter Kowalski,
were found dead in their home. Defendant was charged with both murders. Testimony
elicited at defendant’s preliminary examination and Walker1 hearing indicates that police
questioned defendant about the killings four times over the course of several days: first at
defendant’s home, next at the Brighton Police Station, then at the Ann Arbor Police
Department, and finally at a Michigan State Police post.
During the third interview session, defendant acquiesced to the interviewer’s
statement that there was a “fifty percent chance [he killed his brother], but a fifty percent
1
People v Walker (On Rehearing), 374 Mich. 331; 132 NW2d 87 (1965).
2
chance [he] didn’t.” Defendant discussed having a “blackout” and “blurred” memory and
stated, “I thought I had a dream Thursday, but it was the actual shooting.”
Defendant confessed to the murders during the last interview session, which
followed a night in jail. Defendant stated that he went to his brother’s home, walked into
the kitchen, and murdered his brother and sister-in-law after a brief verbal exchange. The
record suggests that defendant initially described shooting his brother in the chest from a
distance of several feet, although he eventually changed his account after a detective
illustrated through role-playing that defendant’s first version of events did not
corroborate the evidence recovered from the victims’ house. At this point in the pretrial
proceedings, defendant’s confession is the primary evidence implicating him in the
murders.
Before trial, defendant filed a motion to suppress his statements to the police,
which the circuit court denied after conducting a Walker hearing. Defendant then filed a
notice of intent to call two expert witnesses. Dr. Richard Leo, a social psychologist,
would testify regarding police interrogation techniques and the existence of false
confessions. Dr. Jeffrey Wendt, a clinical and forensic psychologist, proposed to testify
about the psychological testing he performed on defendant and offer his opinion about
defendant’s mental state during police questioning. Wendt would also offer testimony
that the “circumstances of Mr. Kowalski’s confession were consistent with the literature
on false confessions” and that the interaction between defendant and police “was
consistent with a coerced internalized confession.”
3
The prosecutor moved to exclude this proposed expert testimony, arguing that it
was inadmissible under MRE 702. Both experts testified at a Daubert2 hearing. Leo
explained that his research classified each confession he believed to be false as either a
“proven false” confession, a “highly probable false” confession, or a “probable false”
confession.3 This categorization involved comparing the narrative of a defendant’s
confession with other evidence, checking whether the confession led to independent
evidence, and looking for other indicia of reliability, with a researcher determining
whether the confession fell into one of the three categories of false confessions.4 While
some of the facts involved in this analysis came “directly from case files,” many were
gleaned from secondary sources, including popular media accounts.5 In addition to
2
Daubert v Merrell Dow Pharm, Inc, 509 U.S. 579; 113 S. Ct. 2786; 125 L. Ed. 2d 469(1993).
3
Leo’s research classifies a confession as “proven false” if “it can be objectively
established that the suspect confessed to a crime that did not happen,” that “the defendant
could not have committed the crime,” that “the true perpetrator of a crime is identified
and his guilt can be objectively established,” or that “scientific evidence—in recent years,
most commonly DNA evidence—dispositively establishes the false confessor’s
innocence.” Drizin & Leo, The problem of false confessions in the post-DNA world, 82
NC L R 891, 925-926 (2004). Confessions are classified as “highly probable false” if the
researchers are satisfied that the confessor’s innocence was established “beyond a
reasonable doubt” and “probable false” if the researchers are satisfied the confessor’s
innocence was established only by a “preponderance of the evidence.” Leo & Ofshe, The
consequences of false confessions: Deprivations of liberty and miscarriages of justice in
the age of psychological interrogation, 88 J Crim L & Criminology 429, 436-437 (1998).
4
Id. at 438-440.
5
See id. at 456 n 199, 457 n 203, 459 n 225, and 461 n 243, citing Eye To Eye with
Connie Chung: Confession (CBS News Television Broadcast, January 13, 1994); Page
Free After Doing 2 1/2 Years for 1984 Killing of His Girlfriend, SF Examiner, February
11, 1995, p A5; Carolyn Colwell, Tankleff’s Family: Jury Goofed Relatives Say “Poker
4
classifying confessions by his confidence in their falsity, Leo also classified confessions
as “voluntary false confessions,” “stress-compliant false confessions,” “coerced-
compliant false confessions,” “coerced-persuaded false confessions,” or “non-coerced-
persuaded false confessions.”6 Leo categorized each confession in this manner by
comparing the circumstances of each confession with those of other confessions he had
already determined to be false.
On the basis of this research, Leo proposed to testify that “false confessions are
associated with certain police interrogation techniques,” that “some of those interrogation
techniques were used in this case,” and that “risk factors associated with false and
unreliable confessions, especially persuaded false confessions, were [also] present in this
case.” In support of Leo’s opinions, defendant offered research conducted by Leo and by
Face” Hurt Teen in Murder Trial, Newsday, July 3, 1990, p 6; 60 Minutes: Richard
Lapointe: Did He Do It? (CBS News Television Broadcast, June 30, 1996).
6
Leo’s research classifies a confession as a “voluntary false confession” when offered
“either without police interrogation or in response to minimal police pressure.” Leo,
False Confessions: Causes, Consequences, and Solutions, in Westervelt & Humphrey,
eds, Wrongly Convicted: Perspectives on Failed Justice (New Jersey: Rutgers University
Press, 2001), ch 2, p 42. Confessions are classified as “stress-compliant false
confessions” when “the stresses and pressures of custodial questioning overwhelm the
suspect and she comes to believe that the only way to terminate the punishing experience
of interrogation is by confessing.” Id. Confessions are classified as “coerced-compliant
false confessions” when “‘a suspect confesses in order to escape or avoid an aversive
interrogation or to gain a promised reward.’” Id. at 43 (citation omitted). Confessions
are classified at as “coerced-persuaded false confessions” when “the interrogator’s use of
coercive influence techniques causes [the confessor] to temporarily doubt the reliability
of his memory; believe that he probably did, or logically must have, committed the crime
under question; and confess to it, despite having no memory or knowledge of
participating in or committing the offense. Id. “Non-coerced-persuaded false
confessions” are similar to coerced-persuaded false confessions but “[are] not elicited in
response to coercive interrogation techniques.” Id. at 44.
5
others. Some of this research appeared in peer-reviewed scientific journals, while some
appeared in law reviews, which are not peer-reviewed.
Next, Wendt testified that he had administered a battery of standard psychological
tests on defendant, performed an extensive clinical interview of defendant, and reviewed
both the police reports recounting the circumstances of defendant’s police interrogation
as well as the transcripts of those interrogations.7 Wendt testified that these types of data
are routinely used at the Center for Forensic Psychiatry.8 Wendt then combined all these
“data sources” to form a psychological profile, which allowed him to discuss how
defendant’s traits affected his ability to interact with other people.9 Lastly, Wendt
proposed to testify that “[t]he circumstances of [defendant’s] confession were consistent
with the literature on false confessions” and that the interaction between defendant and
the police “was consistent with a coerced internalized confession.”10
7
The battery of tests included the Personality Assessment Inventory, the Minnesota
Multiphasic Personality Inventory, and the Substance Abuse Subtle Screening Inventory.
8
The Center for Forensic Psychiatry, located outside Ann Arbor, hosts Michigan’s only
certified forensic facility and conducts all competency and criminal responsibility
evaluations ordered in Michigan criminal proceedings.
9
Specifically, Wendt stated that defendant’s
lack of interpersonal strength or drive leaves him vulnerable to being
influenced by others. . . . The combination of his, of his cognitive factors in
terms of his anxiety and depression; his interpersonal factors, in terms of
his, low assertiveness, leave him particularly vulnerable to suggestion by
others and influence by others, particularly people who are in positions of
authority.
10
The literature uses the terms “coerced internalized confession” and “coerced-persuaded
false confession” interchangeably.
6
At the conclusion of the hearing, the circuit court excluded both experts’ proposed
testimony. The circuit court ruled that Leo was qualified in terms of knowledge but that
his testimony was unreliable and would not assist the trier of fact. The circuit court
stated that “the lack of precise information” precluded Leo from measuring the accuracy
of his studies and also critiqued the sources underlying Leo’s classifications of particular
confessions as false:
[Leo] doesn’t . . . have the ability in his studies to review video
tapes, which would be reliable. He relies on newspaper accounts, magazine
articles. He relies on information provided from sources that are
prejudice[d], for example a defense attorney that represented a defendant,
[and] advocates against the death penalty. . . . I don’t understand why he
couldn’t have done a [Freedom of Information Act request], police agency
files where confessions were given and the suspect was tried or not tried,
pull court files, order transcripts, review police records. . . . [This] would
be a . . . more reliable methodology.
The circuit court examined the manner in which Leo analyzed the confessions that he
determined to be false:
[Leo] starts with the conclusion that the confession is false and then
he works backwards. . . . He doesn’t take into consideration why someone
might falsely confess, other than because of a police interrogation
technique. . . . [A]nd there are reasons why people would falsely confess,
they might be trying to protect someone . . . . He hasn’t determined a
reliable means to have a study group consist of innocent people who
wrongfully confess that weren’t mentally ill or youth.
The circuit court criticized this methodology for failing to compare true and false
confessions and identify factors that contribute to false confessions but not true
confessions. As the circuit court stated, “[I]f true and false confessions can be derived
from the same police interrogation techniques, [how] is it possible to blame police
interrogation techniques with any degree of reliability?” Given what the circuit court
7
considered to be inadequacies of Leo’s data and methodology, the circuit court concluded
that Leo’s testimony was unreliable.
The circuit court further determined that Leo’s testimony would not assist the trier
of fact because the jury could evaluate the credibility and reliability of defendant’s
confession in other ways:
The video tape will allow the jury to have a first hand view of
exactly how the confession was elicited. The jurors will be able to view the
police interrogation techniques used. The jury can determine credibility
and determine whether the confession is reliable. They have a video. The
jurors can figure out if it’s a persuaded confession by reviewing the tape
and considering if the defendant was able to give facts to the police officer
regarding the crime.
Accordingly, the circuit court ruled that Leo’s testimony failed to comply with MRE 702.
Finally, the circuit court concluded that Leo’s testimony was also properly
excluded under MRE 403. The circuit court ruled that the “highly questionable”
probative value of Leo’s testimony was outweighed by the danger of unfair prejudice
because the jury would hear about confessions of defendants with characteristics not
present in this case, such as mental illness and youth, and because Leo would describe
some confessions as “proven false” when the data did not support that conclusion.
With regard to Wendt’s testimony, the circuit court found that the exclusion of
Leo’s testimony regarding the phenomenon of false confessions also required the
exclusion of Wendt’s testimony:
With no other evidence about false confessions, I don’t see how this
could be relevant, helpful or do anything other than be misleading. . . .
What does that do in this case, other than result in misleading evidence,
irrelevant evidence, or at least, that probative value would be substantially
outweighed by the danger of unfair prejudice.
8
Defendant sought interlocutory leave to appeal the circuit court’s decision
excluding the expert testimony. The Court of Appeals stayed the circuit court
proceedings, but ultimately affirmed the circuit court in a split decision.11 The Court of
Appeals majority agreed with the circuit court that Leo’s testimony would have been
unhelpful because it “would not have involved a proposition that was outside the
common knowledge of a layperson.”12 The Court of Appeals concluded that the circuit
court’s reliability determination was not an abuse of discretion, reasoning that Leo had
used subjective determinations of which confessions were false, that his methodology
could not be subjected to testing, and that no rate of error could be quantified.13 The
Court of Appeals also concluded that the circuit court did not abuse its discretion by
determining that Wendt’s testimony would not have assisted the trier of fact. The Court
of Appeals explained that this testimony related to witness credibility, which is within the
sole province of the jury, and that Wendt could not distinguish the characteristics of a
person who makes a false confession from the characteristics of a person who makes a
true confession.14 The Court of Appeals agreed with the circuit court that the danger of
unfair prejudice outweighed the probative value of the testimony of both witnesses and
that their testimony was inadmissible under MRE 403, reasoning that an opinion on the
11
People v Kowalski, unpublished opinion per curiam of the Court of Appeals, issued
August 26, 2010 (Docket No. 294054).
12
Id. at 3.
13
Id. at 4.
14
Id. at 5.
9
truthfulness of defendant’s confession was implicit in the testimony.15 Finally, the Court
of Appeals rejected defendant’s claim that the circuit court had violated his constitutional
right to present a defense, explaining that “this right is not absolute: the accused must still
comply with established rules of procedure and evidence designed to assure both fairness
and reliability in the ascertainment of guilt and innocence.”16
The Court of Appeals partial dissent would have reversed the circuit court’s
decision with respect to Leo’s testimony regarding “the general fact of false confessions”
and with respect to Wendt’s testimony to the extent it could stand independently of
Leo’s.17 The dissent discussed empirical evidence that jurors “were commonly skeptical
of false confessions” and claimed that the majority made “assumptions . . . as to what a
layperson may or may not commonly know.”18 The dissent also concluded that Wendt’s
testimony “that defendant’s personality makes him more susceptible to influence than
normal is based on reliable methodologies and is highly relevant to explain his mental
state as a circumstance attendant to his confession.”19
Defendant applied for leave to appeal in this Court. We granted leave and
instructed the parties to address
15
Id.
16
Id. at 3 (quotation marks and citations omitted).
17
Id. at 1-2 (DAVIS, J., concurring in part and dissenting in part).
18
Id. at 2.
19
Id. at 1.
10
(1) whether the defendant’s proffered expert testimony regarding the
existence of false confessions, and the interrogation techniques and
psychological factors that tend to generate false confessions, is admissible
under MRE 702; (2) whether the probative value of the proffered expert
testimony is substantially outweighed by the danger of unfair prejudice; and
(3) whether the Livingston Circuit Court’s order excluding the defendant's
proffered expert testimony denies the defendant his constitutional right to
present a defense.[20]
II. STANDARD OF REVIEW
This Court reviews for an abuse of discretion a circuit court’s decision to admit or
exclude evidence.21 An abuse of discretion results when a circuit court selects an
outcome falling outside the range of principled outcomes.22 We review de novo
constitutional questions and issues of law underlying evidentiary rulings.23
III. ANALYSIS
A. MRE 702
MRE 702 establishes prerequisites for the admission of expert witness
testimony.24 The rule provides:
If the court determines that scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by knowledge,
skill, experience, training, or education may testify thereto in the form of an
opinion or otherwise if (1) the testimony is based on sufficient facts or data,
20
People v Kowalski, 489 Mich. 858 (2011).
21
Edry v Adelman, 486 Mich. 634, 639; 786 NW2d 567 (2010).
22
People v Babcock, 469 Mich. 247, 269; 666 NW2d 231 (2003).
23
Dep’t of Transp v Haggerty Corridor Partners Ltd Partnership, 473 Mich. 124, 134;
700 NW2d 380 (2005); People v McCuller, 479 Mich. 672, 681; 739 NW2d 563 (2007).
24
Gilbert v DaimlerChrysler Corp, 470 Mich. 749, 782, 789; 685 NW2d 391 (2004).
11
(2) the testimony is the product of reliable principles and methods, and (3)
the witness has applied the principles and methods reliably to the facts of
the case.
A court considering whether to admit expert testimony under MRE 702 acts as a
gatekeeper and has a fundamental duty to ensure that the proffered expert testimony is
both relevant and reliable.25 The overarching goal is “to make certain that an expert . . .
employs in the courtroom the same level of intellectual rigor that characterizes the
practice of an expert in the relevant field.”26 Because there are many different kinds of
experts and expertise, this inquiry is, by necessity, a flexible one, and a court determining
the admissibility of expert testimony may consider reliability factors pertinent to the
particular type of expert testimony offered and its connection to the particular facts of the
case.27
Whatever the pertinent factors may be, however, a court evaluating proposed
expert testimony must ensure that the testimony (1) will assist the trier of fact to
understand a fact in issue, (2) is provided by an expert qualified in the relevant field of
knowledge, and (3) is based on reliable data, principles, and methodologies that are
applied reliably to the facts of the case.28 Although these considerations are separate and
25
Daubert, 509 US at 589.
26
Kumho Tire Co, Ltd v Carmichael, 526 U.S. 137, 152; 119 S. Ct. 1167; 143 L. Ed. 2d 238(1999).
27
Daubert, 509 US at 594-595; Kumho Tire Co, 526 US at 149-151 (explaining that a
court has considerable leeway in how to decide whether expert testimony is reliable in a
particular case depending on the nature of the issue, the expert’s expertise, and the
subject of the testimony).
28
MRE 702.
12
distinct and must each be satisfied independently, they are, in fact, overlapping in nature.
For example, “[a]n expert who lacks ‘knowledge’ in the field at issue cannot ‘assist the
trier of fact.’”29 Likewise, expert testimony without a credible foundation of scientific
data, principles, and methodologies is unreliable and, thus, unhelpful to the trier of fact.30
Indeed, proposed expert testimony must meet all the other requirements of MRE 702 in
order to “assist the trier of fact to understand the evidence or to determine a fact in
issue . . . .”
However, the threshold inquiry—whether the proposed expert testimony will
“assist the trier of fact to understand the evidence or to determine a fact in issue”—is also
not satisfied if the proffered testimony is not relevant or does not involve a matter that is
beyond the common understanding of the average juror. Interpreting the nearly identical
language in the federal counterpart to MRE 702,31 the United States Supreme Court
explained that helping the trier of fact to “understand the evidence or to determine a fact
in issue” presents a question of relevance because “‘[e]xpert testimony which does not
29
Gilbert, 470 Mich at 789.
30
Id. at 790, quoting Zuzula v ABB Power T & D Co, Inc, 267 F Supp 2d 703, 711 (ED
Mich, 2003).
31
FRE 702 stated before its amendment, effective December 1, 2011:
If scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or otherwise, if (1)
the testimony is based upon sufficient facts or data, (2) the testimony is the
product of reliable principles and methods, and (3) the witness has applied
the principles and methods reliably to the facts of the case.
13
relate to any issue in the case is not relevant and, ergo, non-helpful.’”32 Similarly, if the
average juror does not need the aid of expert interpretation to understand a fact at issue,
then the proffered testimony is not admissible because “it merely deals with a proposition
that is not beyond the ken of common knowledge.”33 These considerations of relevancy
and the need for expertise are independent of the other requirements of MRE 702. Thus,
even proposed expert testimony that is offered by a qualified expert and based on reliable
scientific data and methods may be properly excluded if it is not relevant to the facts of
the case or is offered for a proposition that does not require the aid of expert
interpretation.
In this case, the Court of Appeals affirmed the circuit court’s exclusion of the
expert testimony primarily because, in its view, the expert testimony about false
confessions “would not have involved a proposition that was outside the common
32
Daubert, 509 US at 591, quoting 3 Weinstein & Burger, Weinstein’s Evidence,
¶ 702[02], p 702-18. As applied in this case, this threshold determination of relevance
has been met, since defendant claims that his confession, the primary evidence tying him
to the murders, was a false confession of the type that Leo and Wendt study.
33
Gilbert, 470 Mich at 790, quoting Zuzula, 267 F Supp 2d at 711. The original Note of
the Advisory Committee to FRE 702 recognizes this same principle:
“There is no more certain test for determining when experts may be
used than the common sense inquiry whether the untrained layman would
be qualified to determine intelligently and to the best possible degree the
particular issue without enlightenment from those having a specialized
understanding of the subject involved in the dispute.” Ladd, Expert
Testimony, 5 Vand.L.Rev. 414, 418 (1952). When opinions are excluded,
it is because they are unhelpful and therefore superfluous and a waste of
time. 7 Wigmore[, Evidence] §1918.
14
knowledge of a layperson.”34 Thus, we first address whether testimony regarding the
phenomenon of false confessions is beyond the factfinder’s “ken of common knowledge”
before proceeding to the lower courts’ application of the additional requirements of MRE
702.
B. FALSE-CONFESSION TESTIMONY AND THE “BEYOND COMMON
KNOWLEDGE” REQUIREMENT
As we have explained, whether expert testimony is beyond the ken of common
knowledge is a commonsense inquiry that focuses on whether the proposed expert
testimony is on a matter that would be commonly understood by the average person.35 If
“the untrained layman would be qualified to determine intelligently and to the best
possible degree the particular issue without enlightenment from those having a
specialized understanding of the subject involved in the dispute,” then expert testimony is
unnecessary.36
34
Kowalski, unpub op at 3.
35
See, e.g., Berry v Detroit, 25 F3d 1342, 1350 (CA 6, 1994) (“If everyone knows [the
proposition the expert would testify to], then we do not need an expert because the
testimony will not ‘assist the trier of fact to understand the evidence or to determine a fact
in issue . . . .’”), quoting former FRE 702.
36
See Note to former FRE 702 as quoted in note 33 of this opinion; see also Kumho Tire,
526 US at 149 (noting that expert testimony rests “‘upon an experience confessedly
foreign in kind to [the jury’s] own’”), quoting Hand, Historical and practical
considerations regarding expert testimony, 15 Harv L R 40, 54 (1901). As Judge
Learned Hand explained, “The whole object of the expert is to tell the jury . . . general
truths derived from his specialized experience. . . . It is just because [the jurors] are
incompetent for such a task that the expert is necessary at all.” Hand, 15 Harv L R at 54.
15
Although we have not considered whether the aid of expertise may help a juror to
understand the occurrence of false confessions, we have allowed experts to explain other
human behavior that is contrary to the average person’s commonsense assumptions. In
People v Peterson, for example, we observed that victims of child sexual abuse
sometimes exhibit behavior, such as delayed reporting of abuse or retraction of
accusations, that psychologists understand to be common among abuse victims but that
jurors might interpret as being inconsistent with abuse.37 We held that if the victim’s
credibility is attacked by highlighting this behavior, then a qualified expert may explain
the consistencies between the behavior of that victim and that of other victims of child
sexual abuse. We further explained that such testimony was helpful to address
“behavioral traits that may, by their very nature, create confusion in the minds of the
jury.”38
Likewise, in People v Christel, we observed that expert testimony is needed when
a “witness’[s] actions or responses are incomprehensible to average people.”39 Thus, we
permitted a prosecution expert to testify about battered woman syndrome and how a
victim of domestic violence might “deny, repress, or minimize the abuse . . . .”40 We
37
People v Peterson, 450 Mich. 349, 363; 537 NW2d 857 (1995).
38
Id. at 375.
39
People v Christel, 449 Mich. 578, 592; 537 NW2d 194 (1995).
40
Id. at 585.
16
held that this type of testimony was “relevant and helpful when needed to explain a
complainant’s actions . . . .”41
The common theme in these cases is that certain groups of people are known to
exhibit types of behavior that are contrary to common sense and are not within the
average person’s understanding of human behavior. In these instances, an expert’s
specialized testimony may enlighten the jury so that it can intelligently evaluate an
experience that is otherwise foreign.
Although we have not recognized that making a purported false confession
constitutes behavior contrary to common sense, the Court of Appeals did so in People v
Hamilton.42 In that case, the defendant was charged with felony-murder and other crimes
based solely on a confession he had made to the police. The defense theory was that the
defendant had not committed the crimes and had falsely confessed. In support, the
defendant proffered testimony of a clinical psychologist who would have testified “how
defendant’s psychological makeup might have affected his statements to the police.”43
41
Id. at 580.
42
People v Hamilton, 163 Mich. App. 661; 415 NW2d 653 (1987). Multiple federal
circuits have acknowledged, at least implicitly, that the average person does not
understand why a defendant would make false inculpatory statements and have permitted
the admission of expert testimony bearing on factors that could lead to a false confession.
See United States v Roark, 753 F2d 991, 994-995 (CA 11, 1985) (holding admissible
under FRE 702 “testimony . . . designed to help the trier of fact determine whether it was
more or less probable that [the defendant] was somehow psychologically coerced into
[confessing]”); United States v Shay, 57 F3d 126, 134 (CA 1, 1995) (holding that the
district court erred by excluding expert testimony pertaining to the defendant’s “mental
disorder that caused him to make false statements” because such testimony is contrary to
the commonsense assumption that individuals do not falsely confess).
43
Hamilton, 163 Mich App at 663.
17
The Court of Appeals, citing Crane v Kentucky,44 recognized that a rational juror does not
readily understand why a defendant who is innocent might confess to a crime and that
expert testimony regarding a defendant’s psychological makeup might be relevant to a
confession’s reliability and credibility. The Court of Appeals, therefore, reversed the
lower court’s exclusion of the evidence, explaining:
[E]vidence of the manner in which a confession was obtained may
be highly relevant to the confession’s reliability and credibility . . . .
* * *
[The proffered testimony] would help the jury understand the
circumstances surrounding defendant’s statements to the police and how
those circumstances affected the reliability and credibility of defendant’s
statements. Such an understanding is central to the jury’s determination of
defendant’s guilt or innocence.[45]
We agree with Hamilton that expert testimony bearing on the manner in which a
confession is obtained and how a defendant’s psychological makeup may have affected
the defendant’s statements is beyond the understanding of the average juror and may be
relevant to the reliability and credibility of a confession.46
44
Crane v Kentucky, 476 U.S. 683, 688-690; 106 S. Ct. 2142; 90 L. Ed. 2d 636 (1986).
45
Hamilton, 163 Mich App at 666-667.
46
The circuit court and Court of Appeals, like the dissent, distinguished Hamilton, in
part, on the ground that it was decided before MRE 702 incorporated the Daubert
standards. The Court of Appeals reasoned that under earlier MRE 702 analysis, “the trial
court was not required to make a ‘searching inquiry’ into the reliability of the proffered
expert’s testimony by analyzing the expert’s methodologies and principles.” Kowalski,
unpub op at 6. However, Hamilton’s reasoning regarding whether expert testimony was
beyond the average person’s common knowledge was unchanged by Daubert and is still
instructive on that point. We address the issue of reliability separately.
18
In the instant case, however, the Court of Appeals, like the circuit court, held that
the proffered testimony about false confessions “would not have involved a proposition
that was outside the common knowledge of a layperson”47 because the jury could
perform its own analysis of defendant’s inculpatory statements. Certainly, we have no
disagreement with the premise that issues involving credibility and the weight of the
evidence are within the province of the jury. However, the Court of Appeals’ analysis
wrongly focused on the jury’s role, which is not part of the MRE 702 analysis, rather than
on what knowledge the common person possesses and whether the aid of specialized
knowledge can help a juror understand a fact at issue. Like the behavior of the child
sexual abuse and domestic violence victims in Peterson and Christel, a purported false
confession of the sort in Hamilton constitutes counterintuitive behavior that is not within
the ordinary person’s common understanding, and thus expert assistance can help jurors
understand how and why a defendant might confess falsely.48 The exclusion of such
47
Kowalski, unpub op at 3.
48
The dissent attempts to diminish the significance of Peterson and Christel by
suggesting that they do not support our holding, in part because they were decided before
the amendment of MRE 702 to conform to Daubert. The amendment, however, is
irrelevant because it did not affect the inquiry whether expert testimony is beyond the
average person’s common knowledge. The dissent further attempts to distinguish
Peterson and Christel on the basis that the phenomenon of a false confession is a
“commonplace circumstance[]” that jurors are well equipped to understand, unlike “the
extraordinary relationships of the sexually abused child and the battered woman . . . .”
Post at 19. However, this assertion unreasonably assumes that the ordinary juror has the
“life’s experience to comprehend,” post at 19, the circumstances of police interrogation—
circumstances typically experienced only by those accused of criminal conduct—and the
effect of a defendant’s particular psychological traits on the outcome of the interrogation.
The distinctions drawn by the dissent are therefore unavailing.
19
expert testimony when it meets all the requirements of our evidentiary rules could, in
some instances, hinder the jury in its task because without the enlightenment of expert
opinion the jury’s ultimate determination may not be arrived at intelligently.
Our conclusion that a confession challenged as false constitutes behavior contrary
to common sense finds additional support in a longstanding presumption deeply rooted in
our country’s legal system: A person does not ordinarily make untruthful incriminating
statements. As the United States Supreme Court explained more than 100 years ago,
confessions are given great weight on the basis of the presumption that “one who is
innocent will not imperil his safety or prejudice his interests by an untrue
statement . . . .”49 Our “statement against interest” exception to the hearsay rule
embodies this presumption and allows the admission of hearsay statements, which are
typically considered untrustworthy, if the statement tended to subject the declarant to
criminal liability, so “that a reasonable person . . . would not have made the statement
unless believing it to be true.”50 The premise underlying this hearsay exception is “the
49
Hopt v People of the Territory of Utah, 110 U.S. 574, 585; 4 S. Ct. 202; 28 L. Ed. 262(1884); see also Crane, 476 US at 689 (recognizing that rational jurors attach credibility
to a defendant’s confession because an innocent defendant would not admit guilt).
50
MRE 804(b)(3). This presumption is also embodied in the rules of evidence in many
other states. See Alas R Evid 804(b)(3); Ariz R Evid 804(b)(3); Ark R Evid 804(b)(3);
Cal Evid Code § 1230; Del R Evid 804(b)(3); Fla Stat 90.804(2)(c); Ga Code Ann 24-8-
804(b)(3) (effective until January 1, 2013); Hawaii R Evid 804(b)(3); Idaho R Evid
804(b)(3); Iowa R Evid 5.804(b)(3); La Code Evid 804 (B)(3); Minn R Evid 804(b)(3);
Miss R Evid 804(b)(3); Mont R Evid 804(b)(3); Neb Rev Stat 27-804(2)(c); Nev Rev Stat
51.345; NH R Evid 804(b)(3); NJ R Evid 803(c)(25); Okla Stat tit 12, § 2804(B)(3); Or
Rev Stat 40.465(3)(c); RI R Evid 804(b)(3); SC R Evid 804(b)(3); SD Codified Laws 19-
16-32; Tenn R Evid 804(b)(3); Vt R Evid 804(b)(3); W Va R Evid 804(b)(3); Wis Stat
908.045(4); Wyo R Evid 804(b)(3); see also People v Ennis, 11 NY3d 403, 413; 872
NYS2d 364; 900 NE2d 915 (2008) (“To qualify under [the declarations against penal
20
common-sense intuition that a reasonable person would be expected to lie, if at all, only
in his own favor, and would not harm himself by his own words.”51 Despite this well-
established, commonsense presumption, embodied in our evidentiary rules, that a person
does not make false incriminating statements, both the Court of Appeals and the circuit
court simply presumed that the average juror possessed the knowledge to evaluate factors
that might lead to a false confession. This conclusion is not grounded in the necessary
commonsense inquiry and lacks any legal basis.
Accordingly, we hold that because the claim of a false confession is beyond the
common knowledge of the ordinary person, expert testimony about this phenomenon is
admissible under MRE 702 when it meets the other requirements of MRE 702. We
caution, however, that like other expert testimony explaining counterintuitive behavior,
the admissibility of expert testimony pertaining to false confessions is not without
limitations. An expert explaining the situational or psychological factors that might lead
to a false confession may not “comment on the . . . truthfulness” of a defendant’s
confession,52 “vouch for the veracity” of a defendant recanting a confession,53 or “give an
interest exception to the hearsay rule], the declarant must be unavailable, must have
competent knowledge of the facts and must have known at the time the statement was
made that it was against his or her penal interests . . . .”); State v Zerban, 412 S.W.2d 397,
399-400 (Mo, 1967) (“[I]f he made any incriminating statements, untrue denials evincing
a consciousness of guilt, they would constitute admissions against interest and be
admissible in evidence.”).
51
People v Watkins, 438 Mich. 627, 636; 475 NW2d 727 (1991).
52
See Christel, 449 Mich at 580.
53
See Peterson, 450 Mich at 352.
21
opinion as to whether defendant was telling the truth when he made the statements to the
police.”54 These conventional limitations are necessary to guard against the potential for
jurors to view the expert “not only as possessing specialized knowledge in terms of
behavioral characteristics generally associated with the class of” defendants subject to
police interrogation, but also as “possess[ing] some specialized knowledge for discerning
the truth.”55 Given the availability of these conventional limitations, we—unlike the
Court of Appeals, which viewed the expert testimony as tantamount to testimony that
defendant’s confession was false—are less pessimistic about the circuit court’s
management of the proposed testimony and the jury’s capability to properly evaluate and
assess the testimony in light of all the evidence submitted at trial.56
54
See Hamilton, 163 Mich App at 669.
55
People v Beckley, 434 Mich. 691, 727-728; 456 NW2d 391 (1990) (opinion by
BRICKLEY, J.). Additionally, and should the parties request it, a circuit court may provide,
as an added safeguard against this potential danger, a limiting instruction directing the
jury to consider the testimony only for its intended and limited purpose.
56
The Court of Appeals concluded that an unavoidable inference would be drawn from
the expert testimony that defendant falsely confessed or that the testimony would, at
least, “directly [imply] that the police influenced [defendant] into making a false
confession.” Kowalski, unpub op at 6. The possibility that the jury might draw a
particular conclusion from the expert testimony, or that a party might argue that a
particular conclusion should be drawn from that testimony, does not mean that the expert
himself is implying what conclusion should be drawn. Otherwise, we would have
excluded the proposed expert testimony in Peterson and Christel on the grounds that the
testimony itself would imply that the victims had, in fact, been abused. We rejected this
argument in Peterson and Christel and we reject it again here.
The dissent also dismisses these safeguards as ineffective, claiming that an expert
on false confessions is akin to a “human lie detector” whose testimony will almost
certainly cause jurors to casually abandon their role of assessing witness credibility. Post
at 14 (quotation marks and citation omitted). This analogy is inapt because the “aura of
infallibility” surrounding polygraph evidence—which is derived from a physiological test
22
In this case, the proposed testimony of both experts regarding the phenomenon of
false confessions and Wendt’s testimony regarding defendant’s psychological
characteristics would explain a proposition that is beyond the ken of common knowledge.
Thus, the lower courts erred to the extent that they excluded the evidence solely on the
basis that it “merely deals with a proposition that is not beyond the ken of common
knowledge.”57
C. ADDITIONAL REQUIREMENTS OF MRE 702
Our conclusion in this regard does not end our analysis. We must still consider the
other requirements of MRE 702 before determining whether the circuit court’s ultimate
conclusion to exclude the proposed testimony amounted to an abuse of discretion. As we
have explained, the testimony of Leo and Wendt is admissible under MRE 702 if it meets
the other requirements of the evidentiary rule: the “witness [is] qualified as an expert by
knowledge, skill, experience, training, or education,” the “testimony is based on
sufficient facts or data,” the “testimony is the product of reliable principles and methods,”
and the “witness has applied the principles and methods reliably to the facts of the
case.”58 When evaluating the reliability of a scientific theory or technique, courts
to determine whether a person is lying—is not attendant to experts testifying about the
phenomenon of false confessions and defendants’ psychological traits. Post at 14
(quotation marks and citation omitted). Further, we assume that “jurors are presumed to
follow their instructions,” People v Graves, 458 Mich. 476, 486; 581 NW2d 229 (1998),
and we must consider the extent to which a juror has the ability both to follow those
instructions and to autonomously assess the credibility of the expert’s testimony in light
of all the other evidence produced at trial.
57
Gilbert, 470 Mich at 790.
58
MRE 702.
23
consider certain factors, including but not limited to whether the theory has been or can
be tested, whether it has been published and peer-reviewed, its level of general
acceptance, and its rate of error if known.59 This analysis requires courts to ensure that
“each aspect of an expert witness’s proffered testimony—including the data underlying
the expert’s theories and the methodology by which the expert draws conclusions from
that data—is reliable.”60
Here, the expert testimony consists of two distinct categories: testimony by Leo
and Wendt regarding the general phenomenon of false confessions and testimony by
Wendt regarding his clinical psychological examination of defendant. We address each
category in turn as it relates to the remaining requirements of MRE 702.
1. GENERAL TESTIMONY ABOUT FALSE CONFESSIONS
Both Leo and Wendt proposed to offer testimony based on research and literature
about the phenomenon of false confessions. Leo proposed to testify that false
confessions existed, that certain psychological interrogation techniques commonly
employed by the police sometimes resulted in false confessions, and that some of those
techniques were used in this case. Wendt proposed to build on this foundation and testify
that “[t]he circumstances of [defendant’s] confession were consistent with the literature
59
Daubert, 509 US at 593-594. These factors are typically referred to as the “Daubert
factors,” but, as explained in note 27 of this opinion and the accompanying text, a court
has great leeway to consider additional, or other, factors pertinent to the particular area of
expertise. All the Daubert factors are pertinent in this case because, as in Daubert, the
expert testimony pertains to scientific theories and techniques.
60
Gilbert, 470 Mich at 779.
24
on false confessions” and that the interaction between defendant and the police “was
consistent with a coerced internalized confession.”
With regard to Leo, the circuit court followed the mandate of MRE 702 and
carefully reviewed all the stages of Leo’s research, starting with his data.61 The circuit
court noted that Leo decided whether a confession was false on the basis of information
he gathered from sources such as newspaper accounts and attorneys representing the
confessors. The circuit court questioned the accuracy and potential bias of these sources
and even offered an alternative method of obtaining more authoritative documentation
through Freedom of Information Act requests.
Next, the circuit court identified multiple problems with the analysis Leo applied
to his data. Among the circuit court’s observations was that Leo “starts with the
conclusion that the confession is false and then he works backwards” to find
commonalities. The circuit court concluded that, rather than yielding factors common to
all false confessions, Leo’s method seemed to yield only factors common to confessions
Leo believed to be false. This also made it impossible to test Leo’s research or compute
its rate of error. The circuit court also noted that because Leo did not have a “reliable
means to have a study group” that excluded extraneous factors, he had “no ability to
estimate the frequency of false confessions.” The circuit court found troubling the
number of confessions in Leo’s studies that involved factors not present in this case, such
61
The parties do not dispute the circuit court’s ruling that Leo is qualified as an expert in
this field.
25
as a defendant’s youth or mental incapacity. Finally, the circuit court was troubled by a
lack of “a random sample of confessions, true and false.”
Nothing in the circuit court’s analysis placed the exclusion of Leo’s testimony
outside the range of principled outcomes.62 The circuit court properly considered all
stages of Leo’s analysis and found it unreliable at every stage. With regard to the data
underlying Leo’s testimony, the circuit court reasonably determined that its sources were
unreliable because they were prone to inaccuracy or bias and, in nearly all instances, had
not been subjected to the rigorous standards of scientific peer-review. Additionally, the
circuit court raised multiple legitimate concerns about the “manner in which [Leo]
interpret[ed] and extrapolate[d] from those data.” The unreliable methodology, as the
circuit court described, resulted in conclusions consistent with Leo’s own preconceived
beliefs rather than testable results consistent with an objective, scientific process.
Therefore, because the exclusion of Leo’s testimony was a reasonable and principled
outcome, the circuit court’s decision did not amount to an abuse of discretion. The Court
of Appeals came to the same conclusion after making similar observations about the data
and methods underlying Leo’s studies, and we thus affirm the lower courts’ decisions to
exclude Leo’s testimony.63
62
Babcock, 469 Mich at 269.
63
The dissent would also exclude Leo’s testimony under MRE 403. Because we have
concluded that the circuit court did not abuse its discretion by excluding Leo’s testimony
under MRE 702, we need not examine whether MRE 403 also allows for the testimony’s
exclusion.
26
Further, because the circuit court and Court of Appeals properly excluded Leo’s
testimony pertaining to the literature of false confessions, they were also correct to
exclude the portion of Wendt’s testimony indicating that defendant’s confession was
consistent with this literature.64 This part of Wendt’s testimony obviously relied on the
same unreliable foundation that we have rejected with respect to Leo’s testimony. Thus,
we cannot conclude that the lower courts committed an abuse of discretion by excluding
this portion of Wendt’s testimony and we affirm their decisions to exclude it.
Our decision to uphold the exclusion of the testimony based on false-confession
literature is supported by Vent v State,65 in which the Alaska Court of Appeals also
upheld the exclusion of testimony by Leo that was very similar to the testimony he
offered in the instant case. Like the circuit court here, the Vent court was “troubled by
the fact that there was no way to quantify or test Dr. Leo’s conclusions that certain
techniques might lead to false confessions.”66 The Vent court explained that while some
courts allow testimony of this sort, many have held that it is not an abuse of discretion to
exclude it.67 Ultimately, the Vent court concluded that there was “merit to [the Alaska
64
The parties do not dispute that Wendt is qualified as an expert.
65
Vent v State, 67 P3d 661, 667-670 (Alas App, 2003).
66
Id. at 669.
67
See, e.g., Edmonds v State, 955 So 2d 787 (Miss, 2007) (affirming the circuit court’s
decision excluding an expert’s false confession testimony); Green v State, 55 S.W.3d 633,
640 (Tex App, 2001) (affirming the trial court’s decision excluding an expert’s false
confession testimony); United States v Griffin, 50 MJ 278, 284 (CA AF, 1999) (holding
that the testimony of a defense expert on false confessions was properly excluded as not
sufficiently reliable); Kolb v State, 930 P2d 1238 (Wy, 1996) (affirming the exclusion of
expert false confession testimony).
27
superior court’s] questions concerning Dr. Leo’s methodology . . . .”68 We have reached
the same conclusion with regard to both experts’ testimony relating to the literature of
false confessions.69 However, this conclusion does not end our inquiry because Wendt’s
testimony also encompassed a second category: evidence of his psychological testing of
defendant.
2. PSYCHOLOGICAL-TESTING EVIDENCE
Wendt also proposed to testify regarding defendant’s psychological profile, which
he constructed from psychological tests and clinical interviews of defendant. The circuit
court excluded the entirety of Wendt’s testimony, reasoning that, without the evidence
about false confession literature, his testimony on this subject would not assist the trier of
fact. This conclusion was based on the erroneous premise that this portion of Wendt’s
testimony was somehow dependent on false-confession research for its reliability. The
record establishes, however, that this portion of Wendt’s testimony is, in fact,
independent of the false-confession literature and was offered to illustrate a separate, but
related, point regarding Wendt’s specific study of defendant himself. 70 Wendt testified at
68
Vent, 67 P3d at 670.
69
Our decision in this regard does not deprive defendant of his theory of the case: that he
falsely confessed. Defendant may cross-examine the police officers about their training
regarding interrogation techniques and the methods they used in this case and may argue
from this testimony that his confession was false.
70
The Court of Appeals also excluded the entirety of Wendt’s testimony because it would
be unhelpful. The Court’s analysis is similarly faulty because, like the circuit court, the
Court of Appeals failed to recognize that this part of Wendt’s testimony is independent of
the other testimony regarding false-confession literature.
28
length about the data he had gathered from an array of psychological tests he performed
on defendant, his clinical interviews of defendant, and his review of the transcripts of
defendant’s interrogation. Wendt also explained the methods he applied to this data, how
he compiled a psychological profile, and what opinions he formed from this analysis.
This is exactly the type of expert testimony regarding defendant’s psychological
profile that may “assist the trier of fact” within the meaning of MRE 702. Consequently,
the circuit court abused its discretion by excluding this testimony on the basis of the
absence of testimony about the false-confession literature. Because the circuit court did
not apply the remaining MRE 702 factors to this second aspect of Wendt’s testimony, we
do not hold that the circuit court is required to admit Wendt’s testimony, only that its
basis for excluding Wendt’s testimony amounted to an abuse of discretion. On remand, it
remains the circuit court’s duty to fulfill its gatekeeper role under MRE 702 with respect
to any proposed expert testimony.71
Further, although the circuit court did not complete its analysis under MRE 702, it
also opined that Wendt’s testimony was properly excluded under MRE 403. We
conclude that the circuit court’s analysis of MRE 403 was similarly faulty. MRE 403
excludes relevant evidence only if “its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury . . . .”72
Evidence is unfairly prejudicial when “there exists a danger that marginally probative
71
The dissent opines that Wendt’s testimony regarding the psychological tests he
performed is “irrelevant,” post at 10, but as we have explained it is unnecessary to reach
this issue because this determination is to be made by the circuit court on remand.
72
MRE 403.
29
evidence will be given undue or preemptive weight by the jury.”73 In this case, the circuit
court reasoned, “With no other evidence about false confessions, I don’t see how this
could be relevant, helpful or do anything other than be misleading,” and concluded that
its “probative value would be substantially outweighed by the danger of unfair
prejudice.” Thus, the circuit court ruled that Wendt’s testimony had no probative value
in the absence of the testimony about false-confession literature.74 We have explained
that testimony like that Wendt proposed to offer can provide guidance to a fact-finder
regarding behavior that would seem counterintuitive to a juror. Accordingly, and if the
proposed testimony otherwise meets the requirements of MRE 702, the circuit court must
consider this benefit in assessing the probative value of the testimony. Because it failed
to weigh Wendt’s testimony on the probative side of the analysis, the circuit court abused
its discretion by excluding the evidence under MRE 403.
73
People v Crawford, 458 Mich. 376, 398; 582 NW2d 785 (1998) (emphasis added).
74
The Court of Appeals’ MRE 403 analysis also found that all the proffered expert
testimony generally had little probative value and a danger of high prejudice because, in
its view, the expert testimony “would interfere with the jury’s role in determining the
credibility and weight of the confession.” Kowalski, unpub op at 5. This analysis does
not take account of safeguards typically applied to expert testimony in similar contexts.
In Peterson we observed that an expert may not “vouch for the credibility of a witness”
and that a limiting instruction could ensure the jury used the testimony only for its proper
purpose. Peterson, 450 Mich at 376. Similarly, in Christel, we observed that an expert is
prohibited from “comment[ing] on the complainant’s truthfulness.” Christel, 449 Mich
at 580. As we have explained, these same limitations apply to the expert testimony here,
and a limiting instruction is available should the parties request it. Thus, the Court of
Appeals’ analysis is deficient because it failed to consider the safeguards that might
negate the danger that the expert testimony will interfere with the jury’s role.
30
Again, we do not hold that the circuit court is required to admit this portion of
Wendt’s testimony, just that it misapplied MRE 403 in excluding the testimony.
However, in applying MRE 403 on remand, the circuit court must also consider whether
the limits that this Court imposes on expert testimony of this nature and the possibility of
a limiting jury instruction reduce the danger of any unfair prejudice.75
Accordingly, we reverse the portions of the Court of Appeals’ judgment and the
circuit court order excluding the expert testimony regarding Wendt’s psychological
testing of defendant. On remand, the circuit court must consider whether this testimony
meets the requirements of MRE 702 and MRE 403.
D. RIGHT TO PRESENT A DEFENSE
Finally, defendant claims that, to the extent any of the proposed expert testimony
is excluded, the exclusion violates his right to present a defense. Criminal defendants
have a constitutional right to “a meaningful opportunity to present a complete defense.”76
The Sixth Amendment of the United States Constitution provides that a criminal
75
The dissent would exclude all of Wendt’s testimony under MRE 403 as a matter of
law, arguing that the testimony is not “even ‘marginally probative evidence.’” Post at 12.
It is unnecessary to consider under MRE 403 the portion of Wendt’s testimony regarding
false-confession literature, because it was properly excluded under MRE 702. Further,
because the circuit court must consider the admissibility of the psychological testing
evidence under MRE 702 on remand before reaching MRE 403, it is not necessary to
conclude, as the dissent does, that this type of testimony is inadmissible under MRE 403
as a matter of law. Moreover, because Wendt’s proposed expert testimony might have
some probative value, the circuit court must undertake a new analysis of MRE 403 if it
concludes on remand that the psychological testing evidence satisfies the requirements of
MRE 702.
76
Crane, 476 US at 690 (quotation marks and citation omitted).
31
defendant has the right “to have compulsory process for obtaining witnesses in his favor.”
This right has been incorporated to the states through the Fourteenth Amendment.77 The
Supreme Court of the United States has held: “The right to offer the testimony of
witnesses, and to compel their attendance, if necessary, is in plain terms the right to
present a defense . . . .”78
The right to present a defense limits the otherwise broad latitude of states to
establish rules that exclude evidence from criminal trials.79 When rules “infring[e] upon
a weighty interest of the accused” and are “arbitrary” or “disproportionate to the purposes
they are designed to serve,” they must yield to the constitutional right.80 However, while
the right to present a defense is a fundamental part of due process, “it is not an absolute
right,” and “[t]he accused must still comply with ‘established rules of procedure and
evidence designed to assure both fairness and reliability in the ascertainment of guilt and
innocence.’”81
We must therefore determine whether the exclusion of the expert testimony at
issue denies defendant his constitutional right to present a defense. To do so, we consider
the purpose MRE 702 is designed to serve. The purpose of nearly identical FRE 702 is to
77
Washington v Texas, 388 U.S. 14, 18; 87 S. Ct. 1920; 18 L. Ed. 2d 1019 (1967).
78
Id. at 19.
79
United States v Scheffer, 523 U.S. 303, 308; 118 S. Ct. 1261; 140 L. Ed. 2d 413 (1998).
80
Id. (quotation marks and citation omitted).
81
People v Hayes, 421 Mich. 271, 279; 364 NW2d 635 (1984), quoting Chambers v
Mississippi, 410 U.S. 284, 302; 93 S. Ct. 1038; 35 L. Ed. 2d 297 (1973).
32
“ensure that any and all scientific testimony or evidence admitted is not only relevant, but
reliable.”82 In discussing FRE 702, the United States Supreme Court has explained that
the inquiry is a “flexible one” and that “[i]ts overarching subject is the scientific validity”
of the proposed testimony.83 The same can be said of MRE 702.84 Ultimately, courts are
vested with the gatekeeping authority to apply MRE 702 on a case-by-case basis.85
The lack of such discretion is what has most often prompted the United States
Supreme Court to strike down evidentiary rules as violative of the Sixth Amendment. In
Rock v Arkansas, for example, the Court considered a categorical rule prohibiting the
consideration of a hypnotically refreshed memory.86 The Court struck down the rule
because it “leaves a trial judge no discretion to admit this testimony, even if the judge is
persuaded of its reliability by testimony at a pretrial hearing.”87 In contrast, every proper
application of MRE 702 requires a careful consideration of the reliability of the proffered
evidence. The very act of conducting a Daubert hearing establishes that a circuit court’s
gatekeeping role under MRE 702 is neither “arbitrary” nor “disproportionate to the ends
[it is] asserted to promote” because “the Constitution permits judges to exclude evidence
82
Daubert, 509 US at 589.
83
Id. at 594-595.
84
Gilbert, 470 Mich at 781 (“[T]he court’s fundamental duty [is to] ensur[e] that all
expert opinion testimony—regardless of whether the testimony is based on “novel”
science—is reliable.”).
85
Id. at 779-783.
86
Rock v Arkansas, 483 U.S. 44; 107 S. Ct. 2704; 97 L. Ed. 2d 37 (1987).
87
Id. at 56 n 12.
33
that is . . . only marginally relevant or poses an undue risk of harassment, prejudice, [or]
confusion of the issues”88 and evidence that fails to meet the requirements of MRE 702
will always be only marginally relevant or risk confusing the trier of fact.89
Consequently, we hold the proper application of MRE 702 in this case to exclude Dr.
Leo’s testimony and the portion of Dr. Wendt’s testimony that would rely on false
confession research does not deny defendant his constitutional right to present a defense.
IV. RESPONSE TO THE DISSENT
The dissenting justice’s principal disagreement with our decision stems from our
view that the phenomenon of false confessions is beyond the average person’s common
knowledge. The dissent, however, does not dispute that the “statement against interest”
exception to the hearsay rule embodies the presumption that a person does not ordinarily
make untruthful incriminating statements, which is a strong indicator that the
circumstances of a false confession are beyond the average person’s understanding. Still,
the dissent dismisses the significance of the fact that this presumption is embodied in our
88
Holmes v South Carolina, 547 U.S. 319, 326-327; 126 S. Ct. 1727; 164 L. Ed. 2d 503(2006) (quotation marks and citations omitted).
89
Defendant’s argument that Crane v Kentucky, 476 U.S. 683, prohibits the circuit court
from excluding the proffered evidence is without merit. In Crane, the United States
Supreme Court held that a defendant had a right to argue to a jury that his confession was
unreliable even after a judge had determined it to be voluntary. The Court held that
excluding all testimony about the circumstances surrounding his confession was a
constitutional violation of the defendant’s right to present a defense because it excluded
“competent, reliable evidence.” Id. at 690. Yet Crane also acknowledged that states may
“exclude evidence through the application of evidentiary rules that themselves serve the
interests of fairness and reliability—even if the defendant would prefer to see that
evidence admitted.” Id.
34
rules of evidence as well as the significance of our caselaw recognizing that the aid of
expertise can help jurors understand similarly counterintuitive behavior.90 The dissent
also does not dispute that our caselaw indeed permits expert testimony to explain
counterintuitive behavior. Instead, the dissent insists that the average person is capable
of understanding why a person might falsely confess to a crime and under what
circumstances. This argument is unconvincing in part because it relies not on any
established legal principles of our jurisprudence but, for the most part, on a law review
article authored by a law student and on the concededly unreliable testimony of Leo.
Having posited that jurors can, in fact, understand without the aid of expertise why
a person might falsely confess, the dissent supports this view with a list of our holding’s
supposed ill effects. But the dissent’s fears that our decision will cause jurors to
subordinate their judgment to the “false appearance of expertise,”91 “open up the
floodgates for expert testimony,”92 and turn criminal trials into “battles of psychological
experts”93 are simply unfounded. Our holding is limited to the principle that a claim of a
false confession is beyond the common knowledge of the ordinary person and that expert
testimony regarding this phenomenon is admissible under MRE 702 only if it meets the
90
Indeed, the dissent cites extensively the views of the dissenting justices in both
Peterson and Christel. While those more narrow viewpoints are undoubtedly aligned
with the dissenting justice’s views in this case, those views failed to carry the day and are
not the law of our state.
91
Post at 3 (emphasis omitted).
92
Post at 20.
93
Post at 20.
35
other requirements of MRE 702. Thus, far from the dissent’s interpretation of our
decision, we have not created a rule allowing the admission of faux expert testimony
regarding false confessions. Rather, a defendant proffering expert testimony on the
phenomenon of false confessions must meet all the requirements not only of MRE 702,
but also of MRE 403 before the testimony could be admitted. Thus, the ramifications the
dissent fears—the “routine” use of experts by both the defense and the prosecution, and
prolonged and more costly proceedings—are exaggerated. And while there may be some
lengthening of the trial process in those few cases in which expert testimony regarding
false confessions is admitted, the result is not “gamesmanship” “for no good reason,” but
an aid in the furtherance of a criminal trial’s “principal mission, the search for the
truth.”94
Further, the dissent lists several types of behavior that it believes could be subject
to expert testimony as a result of our decision. However, that concern is not supported by
today’s holding. We agree with the dissent that questions of eyewitness identification,
fading memories, witnesses’ body language, and the like involve obvious human
behavior from which jurors can make “commonsense credibility determinations.”95 None
of this behavior is recognized in our law as having special indicia of reliability. A
statement against penal interest, on the other hand, is presupposed to be trustworthy and
credible, which is precisely why an alleged false confession is a counterintuitive behavior
that may, like other counterintuitive behavior recognized by our caselaw, require the aid
94
Post at 3-4.
95
Post at 21-22.
36
of expertise to explain. The legal principles that are the foundation of our holding do not
also support the need for expert testimony to explain the common human behavior
described by the dissent.
V. CONCLUSION
We affirm the exclusion of Leo’s testimony and the portion of Wendt’s testimony
based on false-confession research because the circuit court’s determination that it was
not reliable under MRE 702 was not an abuse of discretion and its exclusion does not
violate defendant’s right to present a defense. Because the circuit court and the Court of
Appeals erred by excluding Wendt’s testimony regarding the psychological testing he
performed on the ground that it depended on the testimony of Leo, we reverse those
rulings and remand this case to the circuit court for the court to determine its
admissibility under MRE 702 and MRE 403.
Mary Beth Kelly
Robert P. Young, Jr.
Brian K. Zahra
37
STATE OF MICHIGAN
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 141932
JEROME WALTER KOWALSKI,
Defendant-Appellant.
CAVANAGH, J. (concurring).
I concur in the result reached by the lead opinion.
I agree with the lead opinion that the phenomenon of false confessions is
counterintuitive and, thus, inconsistent with “‘the common-sense intuition that a
reasonable person would be expected to lie, if at all, only in his own favor, and would not
harm himself by his own words.’” Ante at 20-21, quoting People v Watkins, 438 Mich.
627, 636; 475 NW2d 727 (1991), see, also, United States v Shay, 57 F3d 126, 133 (CA 1,
1995) (“Common understanding conforms to the notion that a person ordinarily does not
make untruthful inculpatory statements.”); Crane v Kentucky, 476 U.S. 683, 689; 106 S. Ct.
2142; 90 L. Ed. 2d 636 (1986) (noting the “one question every rational juror needs
answered: If the defendant is innocent, why did he previously admit his guilt?”).
Accordingly, I agree with the lead opinion that expert testimony may assist jurors in
understanding the existence of false confessions, including how and why a defendant
might falsely confess. Craig v Oakwood Hosp, 471 Mich. 67, 79; 684 NW2d 296 (2004).
Thus, I agree that the lower courts erred in excluding the expert testimony to the extent
that they concluded otherwise.
I believe that appellate review of whether a trial court’s decision to exclude
evidence resulted in an abuse of discretion requires an examination of the importance of
the testimony to a defendant’s theory of defense. See People v Barrera, 451 Mich. 261,
269; 547 NW2d 280 (1996). At this juncture and under this Court’s current evidentiary
rule, however, I find that the issue presented in this case raises a close evidentiary
question regarding Dr. Richard Leo’s proposed testimony. Thus, I agree with the lead
opinion’s conclusion that the trial court did not abuse its discretion by excluding as
unreliable Leo’s testimony as it pertains to police-interrogation techniques. People v
Golochowicz, 413 Mich. 298, 322; 319 NW2d 518 (1982).
And although I find persuasive the principles espoused by the Court of Appeals
partial dissent as it relates to Dr. Jeffrey Wendt, People v Kowalski, unpublished opinion
per curiam of the Court of Appeals, issued August 26, 2010 (Docket No. 294054)
(DAVIS, J., concurring in part and dissenting in part), I agree with this Court’s conclusion
that it is prudent to remand this case to the trial court to consider the admissibility of
Wendt’s testimony in the first instance, in light of the trial court’s failure to consider
Wendt’s testimony independently of Leo’s testimony. Nevertheless, on remand, I urge
the trial court to “conscientiously consider” the relationship between the evidentiary rules
and defendant’s constitutional right to present a defense. Barrera, 451 Mich at 269.
2
When the accuracy of a potential conviction rests in large part on the accuracy of a
confession, I believe that a trial court should give due consideration to the importance of
a defense theory that seeks to undermine the accuracy of the confession.
Michael F. Cavanagh
Marilyn Kelly
Diane M. Hathaway
3
STATE OF MICHIGAN
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 141932
JEROME WALTER KOWALSKI,
Defendant-Appellant.
MARKMAN, J. (concurring in part and dissenting in part).
I agree with the lead opinion that (a) the trial court did not abuse its discretion by
ruling that Dr. Richard Leo’s proffered expert testimony regarding the existence of false
confessions and the interrogation techniques claimed to generate them is unreliable and
thus inadmissible under MRE 702, (b) for the same reason, to the extent that Dr. Jeffrey
Wendt’s proffered testimony relied on Leo’s false confession testimony, the trial court
did not abuse its discretion by excluding this testimony, and (c) the exclusion of this
testimony did not violate defendant’s Sixth Amendment right to present a defense.
However, I respectfully disagree with the lead opinion’s conclusions that (a) expert
testimony regarding the existence of false confessions, even if reliable, is admissible
under MRE 702 because it is beyond the common knowledge of the average juror and (b)
Wendt’s testimony concerning defendant’s psychological characteristics, even if reliable,
is relevant and thus admissible under MRE 702. Instead, I conclude that (a) expert
testimony regarding the existence of false confessions is not beyond the common
knowledge of the average juror and thus is inadmissible under MRE 702 and (b) Wendt’s
testimony concerning defendant’s psychological characteristics is irrelevant because, as
Wendt himself admits, none of these characteristics make it “more probable or less
probable,” MRE 401, that defendant’s confession was either true or false, and thus his
testimony is also inadmissible under MRE 702. In other words, I conclude that the trial
court did not abuse its discretion by excluding Leo’s and Wendt’s proffered testimony.
Accordingly, I would affirm the judgment of the Court of Appeals.
I. SUMMATION
The issue in this case is not whether defendants may sometimes falsely confess.
Indeed, it is precisely because this possibility is so obvious that it can hardly be said to be
“beyond the common knowledge of the average juror” and thus an appropriate subject of
“expert” testimony under the law. Moreover, there is nothing offered in this case by the
asserted “experts” on false confessions that would afford jurors any actual assistance in
determining whether defendant’s confession was, in fact, false. The police interrogation
techniques Leo identified as being associated with false confessions were acknowledged
by Leo as also being associated with true confessions, and the psychological traits Wendt
identified as evidence of a possible false confessor were acknowledged by Wendt as also
being traits that might be possessed by nonfalse confessors. Thus, neither expert’s
proposed testimony is relevant in any way to the jury in deciding whether defendant was
a false confessor or a nonfalse confessor. It is hard to think of a function more central to
the traditional jury role than to ascertain the credibility of ordinary witnesses and other
persons. To introduce into the jury process “expert” witnesses who will testify that
persons will sometimes falsely confess is to belabor the obvious and create the illusion
that there is some “scientific, technical, or other specialized knowledge” that will assist
2
the jury in carrying out its core responsibility of determining credibility. Thus, the
introduction of “experts” into the realm of the mundane does not merely risk distracting
the jury, but risks the prospect of jurors increasingly subordinating their own
commonsense judgments-- precisely the kind of judgments that form the rationale for the
jury system in the first place-- to the false appearance of expertise suggested by the
presence of expert psychological testimony. The criminal trial of the near future in
Michigan, one being nudged forward by today’s decision, is one in which: (a) increasing
numbers of criminal defendants will as a matter of routine employ “expert” witnesses to
attempt to dispel the trustworthiness of their confessions, (b) increasing numbers of
criminal defendants will be encouraged not to testify on their own behalf that they falsely
confessed, preferring to let the jury infer this same conclusion from the testimony of
“experts,” (c) prosecutors will be increasingly incentivized to respond to testimony by
defendants’ “experts” that false confessions sometimes occur with testimony by their
own “experts” that truthful confessions sometimes also occur and that, in fact, truthful
confessions tend to occur more often than false confessions, with defendants’ “experts”
then responding that, while that may all be true, false confessions nonetheless occur more
often than acknowledged by the prosecutors’ “experts,” (d) ordinary issues of credibility
traditionally resolved by juries through the exercise of their own common sense,
judgment, and experience will increasingly become the subject of battling contingents of
“experts,” and (e) increasingly frequent and distracting courtroom debates will take place
concerning other unremarkable propositions of human behavior such as that memories
fade over time, police officers sometimes testify falsely, and persons who do not look
others in the eye may sometimes be testifying dishonestly. As a result, and for no good
3
reason, the criminal trial of the near future will be slightly more prolonged, slightly more
costly for all parties, and ever slightly more open to the kind of gamesmanship that
distracts the criminal trial from its principal mission, the search for the truth.
II. STANDARD OF REVIEW
This Court reviews a trial court’s decision to exclude expert testimony for an
abuse of discretion. Edry v Adelman, 486 Mich. 634, 639; 786 NW2d 567 (2010). A trial
court abuses its discretion when it “chooses an outcome falling outside [the] principled
range of outcomes.” People v Babcock, 469 Mich. 247, 269; 666 NW2d 231 (2003).
III. ANALYSIS
MRE 702 governs the admissibility of expert witness testimony and provides:
If the court determines that scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by knowledge,
skill, experience, training, or education may testify thereto in the form of an
opinion or otherwise if (1) the testimony is based on sufficient facts or data,
(2) the testimony is the product of reliable principles and methods, and (3)
the witness has applied the principles and methods reliably to the facts of
the case.
MRE 702 requires expert testimony to be both reliable and relevant. See Daubert v
Merrell Dow Pharm, Inc, 509 U.S. 579, 597; 113 S. Ct. 2786; 125 L. Ed. 2d 469 (1993)
(“[T]he Rules of Evidence—especially Rule 702—do assign to the trial judge the task of
ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to
the task at hand.”); Kumho Tire Co, Ltd v Carmichael, 526 U.S. 137, 141; 119 S. Ct. 1167;
143 L. Ed. 2d 238 (1999) (“[S]cientific expert testimony . . . is admissible only if it is both
relevant and reliable.”); Gilbert v DaimlerChrysler Corp, 470 Mich. 749, 780 n 46; 685
NW2d 391 (2004), quoting Daubert, 509 US at 589 (“‘[T]he trial judge must ensure that
4
any and all scientific testimony or evidence admitted is not only relevant, but reliable.’”)
(emphasis omitted).
A. TESTIMONY OF DR. LEO
I do not believe that the trial court abused its discretion by excluding Leo’s
testimony pursuant to MRE 702. For the reasons explained by the lead opinion, I agree
that Leo’s proposed testimony was not the product of reliable principles and methods and
thus is inadmissible on this basis alone. However, I disagree with the lead opinion’s
conclusion that had Leo’s testimony been the product of reliable principles and methods,
it would have been admissible. I do not believe that the trial court abused its discretion
by concluding that Leo’s proposed testimony would not “assist the trier of fact to
understand the evidence or to determine a fact in issue . . . .” MRE 702. “‘Expert
testimony is not admissible . . . when it merely deals with a proposition that is not beyond
the ken of common knowledge.’” Gilbert, 470 Mich at 790 (citation and emphasis
omitted).
Leo proposed to testify that people sometimes falsely confess. However, this is
not a proposition that is outside the “common knowledge” of the average juror. Jurors, as
ordinary members of the community with ordinary measures of judgment, common
sense, experience, and personal insight, understand that people sometimes falsely
confess, although jurors also understand that false confessions are far from the norm.
Defendant argues that jurors have a tendency to believe that people will not confess to a
crime that they did not commit. Quite likely, defendant is correct. However, this
asserted tendency is not inconsistent with Leo’s own testimony at the Daubert hearing.
Leo testified that most jurors assume that if the defendant confessed he is “probably
5
guilty,” but Leo also acknowledged that “most confessions are true” and that “false
confessions are the exception.” Therefore, as long as the prosecutor does not argue that
people never falsely confess, which he has not argued here, Leo’s proposed testimony
that false confessions are possible offers absolutely nothing of relevance to the jury.
“[T]here is no need for expert testimony that tells the jury what it already knows.”
Comment, The (In)admissibility of False Confession Expert Testimony, 26 Touro L R 23,
58 (2010). “As it stands, most jurors have a nuanced understanding that false confessions
occur, but only rarely. An expert witness that simply repeats this fact is not ‘assisting the
trier of fact.’” Id. at 59. As one commentator explained:
False confession theorists . . . [argue that] false confession expert
testimony helps combat against . . . the myth that false confessions do not
occur. However, the numbers simply do not support the notion that this
myth exists. For instance, one statistic used to demonstrate this myth is that
sixty eight percent of potential jurors in the District of Columbia believe
that suspects falsely confess “not very often” or “almost never.” Implying
that these answers foreclose even the possibility of false confessions within
the minds of jurors is simply wordplay: “not very often” and “almost
never” do not mean “never.” In fact, the data clearly corroborates most
jurors’ beliefs that concede the possibility of a false confession in a given
case, while also noting its statistical improbability. The notion that some
suspects might confess to something they did not do is within the common
knowledge of jurors. [Id. at 56-57, citing in part Leo, Police Interrogation
and American Justice, p 196 (2008).]
Because Leo’s proposed testimony concerning the existence of false confessions is “‘not
beyond the ken of common knowledge,’” Gilbert, 470 Mich at 790 (citation omitted), it
is unlikely to “assist the trier of fact to understand the evidence or to determine a fact in
issue,” MRE 702, and thus is inadmissible under MRE 702.1
1
The lead opinion contends that its conclusion that the fact that someone might falsely
confess is “contrary to common sense” is supported by “[o]ur ‘statement against interest’
6
Leo also proposed to testify that certain interrogation techniques are associated
with false confessions. However, given that he admitted that these same interrogation
techniques are also associated with true confessions, I fail to see how this testimony
could assist the jury.2 Informing the jury that certain interrogation techniques result in
exception to the hearsay rule [which] embodies [the] presumption . . . ‘that a reasonable
person . . . would not have made [such a] statement unless believing it to be true.’” Ante
at 20, quoting MRE 804(b)(3). However, what the lead opinion wholly fails to recognize
is that Leo does not dispute that people generally do not falsely confess. Leo knows this,
and jurors know this. Leo and jurors also know that there are exceptions to this general
presumption and that people sometimes do falsely confess. There is absolutely nothing
inconsistent between the notions that people generally do not falsely confess and that
people sometimes do falsely confess and I do not believe that either of these notions lies
outside the common knowledge of jurors. See State v Free, 351 NJ Super 203, 220; 798
A2d 83 (2002) (citation omitted) (“Although our rules of evidence recognize that people
do not usually make statements against their penal interest unless they are true, it does not
follow that ordinary jurors believe that all confessions made by defendants subjected to
police interrogation are true.”); see also Comment, 26 Touro L R at 53 (“That false
confessions occur is a matter of fact; however, it is also true that false confessions are
rare.”).
2
For example, Leo testified:
[P]olice using coercive techniques sometimes results in true
confessions, sometimes results in false confessions.
* * *
The coercive, problematic techniques that might, when applied to an
innocent person, lead to a false confession, but when applied to a guilty
person, lead to a true or a partially true confession. You can’t infer from
the techniques used whether you’ll get a true or false confession.
* * *
[T]he interrogation process . . . can lead to both true and false
confessions.
7
either true or false confessions does nothing to advance the jury’s thinking. The jurors
obviously know that the confession before them is either true or false, and it is their job to
determine whether it is true or false. Instructing them that a confession is either true or
false is only belaboring the obvious. “Rule 702’s ‘helpfulness’ standard requires a valid
scientific connection to the pertinent inquiry as a precondition to admissibility.”
Daubert, 509 US at 591-592. Because Leo admitted that there is no “scientific
connection” between any of the interrogation techniques that he proposes to testify about
and the truthfulness of a confession, his proposed testimony about these interrogation
techniques does not satisfy the “helpfulness” standard of Rule 702.3
3
As the Ohio Court of Appeals explained:
Dr. Leo . . . explained that coercive interrogation techniques do tend
to be effective in producing their desired result: a confession. He conceded
on cross-examination, however, that coercive techniques are also effective
in inducing true confessions and he could not offer any opinion as to how
many of the resulting confessions are truthful and how many are false.
Thus, he could offer no expert insight into the actual likelihood that
coercive interrogation tactics will lead to a false confession.
* * *
As explained above, Dr. Leo conceded that he could not predict
when a confession was false, nor could he opine that coercive interrogation
tactics are more likely to yield false confessions instead of truthful ones.
Dr. Leo could not offer an opinion on which interrogation techniques lead
to false confessions, he had no information about the percentage of
confessions that are truthful or false, nor could he analyze a given
confession and offer an opinion as to whether it was true or false.
* * *
It was not beyond the knowledge of lay jurors that coercive police
interrogation tactics might be more likely to induce a confession from a
8
As the Court of Appeals explained:
We conclude that the trial court did not abuse its discretion by
excluding Dr. Leo’s testimony. The trial court concluded that Dr. Leo was
qualified in terms of knowledge, but it excluded Dr. Leo’s testimony on
several grounds including its finding that the testimony would not assist the
trier of fact in understanding the evidence or in determining a fact at issue.
MRE 702. This was not an abuse of discretion. Defendant essentially
offered Dr. Leo’s testimony to help the jury determine the reliability of
defendant’s confession. However, Dr. Leo’s testimony would not have
involved a proposition that was outside the common knowledge of a
layperson. Gilbert, 470 Mich at 790. Dr. Leo acknowledged that the same
interrogation techniques that he determined led to false confessions could
also lead to true confessions. He could not identify any unique correlation
between certain police interrogation tactics and false confessions. Dr. Leo
explained that the reliability of a confession is determined by considering
whether aspects of the confession fit with the evidence in the case. Nothing
in the record here indicates that a juror cannot perform this same analysis
without the assistance of expert testimony. Further, the police interrogation
of defendant was recorded and the jury will be able to review the recordings
at trial. Additionally, the police officers will be subject to cross-
examination with respect to their specialized training in the art of
interrogation and techniques they may use to pressure a defendant into
confessing to a crime. The jury will be able to consider the manner in
which defendant’s confession was elicited, and the way in which his
statements progressed during the course of the interrogation, and it will be
able to weigh the interrogation and confession with the remainder of the
evidence introduced at trial and make a determination as to the credibility
of the confession. No expert testimony is needed to assist the jury in this
process. See People v Wolfe, 440 Mich. 508, 514-515; 489 NW2d 748
(1992), amended 441 Mich. 1201 (1992) (issues involving credibility are
within the sole province of the jury). [People v Kowalski, unpublished
opinion per curiam of the Court of Appeals, issued August 26, 2010
(Docket No. 294054), pp 3-4.]
criminal suspect, nor was the fact that suspects do sometimes falsely
confess to a crime. [State v Wooden, unpublished opinion of the Ohio
Court of Appeals, issued July 23, 2008 (Docket No. 23992), pp 7-9; 2008-
Ohio-3629, ¶¶ 22, 26, 28.]
9
As even the concurring/dissenting Court of Appeals judge explained, Leo’s “conclusion
that certain police interrogation techniques are associated with false confessions . . . is
useless” because “[t]he police interrogation techniques Dr. Leo associated with false
confessions are also associated with true ones and partially true ones, and there is no
known difference in rates.” Id. at 2 (DAVIS, J., concurring in part and dissenting in part).
“[A]ll Dr. Leo can tell us is that police interrogation techniques are associated with
confessions,” and “[t]his association will not assist the jury[.]” Id. (emphasis in the
original).4
Because Leo admitted that the same interrogation techniques that result in false
confessions may also result in true confessions, his proposed testimony concerning
interrogation techniques will not “assist the trier of fact to understand the evidence or to
determine a fact in issue,” and thus it is inadmissible under MRE 702.
B. TESTIMONY OF DR. WENDT
Wendt proposed to testify that defendant possesses some psychological traits that
can lead to false confessions. However, given that he admitted that these same
psychological traits can also lead to true confessions, this testimony is equally irrelevant.5
Informing the jury, for example, that defendant is an “anxious” person, and that anxious
4
Similarly, the trial court explained:
If . . . the same techniques can lead to a true or false confession, I
don’t understand what relevance it would have, what relevance there would
be to having Dr. Leo testify about police techniques. I don’t see how he
can assist the jury, how he can be helpful to the jury.
5
For example, when asked whether “people who have the psychological factors that
you’ve talked about can just as equally truly confess,” Wendt answered, “Correct.”
10
people sometimes falsely confess, and also sometimes truthfully confess, does little to
advance the jury’s thinking. The jury’s responsibility is to determine whether a
confession is true or false, and unless an expert has something to offer the jury in this
regard that will make it more or less likely that the confession is either true or false, the
expert’s testimony is irrelevant. See MRE 401 (“‘Relevant evidence’ means evidence
having any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
evidence.”).
As the Court of Appeals correctly explained:
Dr. Wendt admitted that the same personality traits that correlate
with false confessions can also lead to true confessions. Dr. Wendt could
not identify a specific psychological factor that distinguishes a person who
makes a false confession from one who makes a true confession. Thus, his
testimony would have been of no help to the jury because the jury would
have still been required to weigh defendant’s confession against the other
evidence in the case to determine whether it was credible. [Kowalski,
unpub op at 5.][6]
6
See also Bixler v State, 582 NW2d 252, 256 (Minn, 1998) (“Clearly the trial court was
well within its discretion in ruling that the jury, without the testimony of the
psychological expert, was fully capable of observing and understanding [the defendant’s]
propensity to please authority figures, and taking those observations and that
understanding into account in evaluating his confession.”); People v Wood, 341 Ill App
3d 599, 608; 793 NE2d 91 (2003) (“Dr. Greenberg’s testimony was properly barred”
because “Dr. Greenberg’s testimony that defendant was easily coerced and susceptible to
intimidation is not beyond the understanding of ordinary citizens, nor is the concept
difficult to understand.”). Furthermore, in the instant case, Wendt’s proposed testimony
that defendant may have been vulnerable to interrogation techniques is particularly
irrelevant in light of the interrogating officer’s testimony that he was actually “try[ing] to
talk [defendant] out of the confession” because defendant “had already told [the officer
he] had done something and [the officer] didn’t believe the details.”
11
C. MRE 403
Even assuming for the sake of argument that Leo’s and Wendt’s testimony is
relevant and reliable, I believe that its “probative value is substantially outweighed by the
danger of unfair prejudice . . . .” MRE 403. “Evidence is unfairly prejudicial when there
exists a danger that marginally probative evidence will be given undue or preemptive
weight by the jury.” People v Crawford, 458 Mich. 376, 398; 582 NW2d 785 (1998). As
the United States Supreme Court has explained:
“Expert evidence can be both powerful and quite misleading because
of the difficulty in evaluating it. Because of this risk, the judge in weighing
possible prejudice against probative force under Rule 403 of the present
rules exercises more control over experts than over lay witnesses.”
[Daubert, 509 US at 595, quoting Weinstein, Rule 702 of the Federal Rules
of Evidence is Sound; It Should Not Be Amended, 138 FRD 631, 632
(1991).]
For the reasons explained earlier, I do not believe that the testimony at issue here is even
“marginally probative evidence,” but even if it were, there would be a considerable risk
that the jury would accord undue weight to the experts’ testimony. “Since experts base
their testimony on science, jurors tend to find the testimony more convincing, and
therefore the risk of misleading and confusing them increases.” Comment, 26 Touro L R
at 37. “‘[Q]uestions of credibility, whether of a witness or of a confession, are for the
jury,’” Crane v Kentucky, 476 U.S. 683, 688; 106 S. Ct. 2142; 90 L. Ed. 2d 636 (1986)
(citation omitted), but the admission of expert testimony on the subject of false
confessions, or on other subjects that are within the “common knowledge” of jurors and
that pertain to credibility, have the potential to undermine the jury’s role in this regard.
“Indeed, as we have cautioned before, the jury in these credibility contests is looking ‘to
12
hang its hat’ on the testimony of witnesses it views as impartial,” People v Peterson, 450
Mich. 349, 376; 537 NW2d 857 (1995), and it may easily come to perceive the testimony
of the expert as supplying a shortcut for resolving credibility disputes between witnesses.
In the instant case, defendant will be arguing that the confession is false,7 the
prosecutor will be arguing that the confession is true, and the experts’ testimony
concerning false confessions, if admitted, would be viewed by the jury as testimony from
people who study false confessions for a living, in support of defendant’s position that
the confession is false. Even though the experts will not be allowed to expressly testify
that they believe that defendant falsely confessed, the jury will be led to believe that the
experts know more than they are telling, because the jury will almost certainly infer that
the experts must believe that defendant’s confession is false or else they would not be
testifying on his behalf. See Peterson, 450 Mich at 391 (CAVANAGH, J., dissenting). The
danger that the jury will be misled by the experts’ testimony to believe that the
interrogation techniques used by the police, in conjunction with defendant’s personality
traits, must have resulted in a false confession is substantial, and thus the risk that the
jury’s role in making credibility determinations will be undermined is also substantial.8
7
Defense counsel argues that if he were not allowed to present the expert witness
testimony to the jury, he would be left with no response whatsoever to defendant’s
confession. This is simply untrue. In fact, defense counsel would be left with what is, in
my opinion, the best response to the confession: defendant’s own explanation regarding
why he confessed.
8
For a discussion of the potential of expert psychological testimony to mislead jurors, see
Clark v Arizona, 548 U.S. 735, 774-778; 126 S. Ct. 2709; 165 L. Ed. 2d 842 (2006)
(“[T]hese empirical and conceptual problems add up to a real risk that an expert’s
judgment in giving . . . evidence will come with an apparent authority that psychologists
and psychiatrists do not claim to have.”).
13
As a plurality of the United States Supreme Court explained in United States v
Scheffer, 523 U.S. 303, 313-314; 118 S. Ct. 1261; 140 L. Ed. 2d 413 (1998), regarding
polygraph evidence:
A fundamental premise of our criminal trial system is that “the jury
is the lie detector.” Determining the weight and credibility of witness
testimony, therefore, has long been held to be the “part of every case [that]
belongs to the jury, who are presumed to be fitted for it by their natural
intelligence and their practical knowledge of men and the ways of men.”
By its very nature, polygraph evidence may diminish the jury’s role
in making credibility determinations. The common form of polygraph test
measures a variety of physiological responses to a set of questions asked by
the examiner, who then interprets these physiological correlates of anxiety
and offers an opinion to the jury about whether the witness—often, as in
this case, the accused—was deceptive in answering questions about the
very matters at issue in the trial. Unlike other expert witnesses who testify
about factual matters outside the jurors’ knowledge, such as the analysis of
fingerprints, ballistics, or DNA found at a crime scene, a polygraph expert
can supply the jury only with another opinion, in addition to its own, about
whether the witness was telling the truth. Jurisdictions, in promulgating
rules of evidence, may legitimately be concerned about the risk that juries
will give excessive weight to the opinions of a polygrapher, clothed as they
are in scientific expertise and at times offering, as in respondent’s case, a
conclusion about the ultimate issue in the trial. Such jurisdictions may
legitimately determine that the aura of infallibility attending polygraph
evidence can lead jurors to abandon their duty to assess credibility and
guilt. [Citations omitted; emphasis in the original.]
Similarly, expert testimony concerning false confessions may diminish the jury’s role in
making credibility determinations. Jurors may give excessive weight to this testimony
and abandon or subordinate their own primary duties to assess credibility and guilt.
“[T]he testimony would . . . convert the expert witness into a human lie detector,” and
“[c]ourts should be as wary of admitting human lie detectors as they are of admitting the
results of a polygraph test.” Comment, 26 Touro L R at 57-58. “Our criminal justice
14
system is founded on the belief that juries can understand when statements might be
unreliable, and admitting expert testimony on false confessions upends this fundamental
pillar.” Id. at 74. For these reasons, I do not believe that the trial court abused its
discretion by concluding that the probative value of the experts’ testimony is substantially
outweighed by the danger of unfair prejudice.9
As the Court of Appeals explained:
Although both experts testified that they would not offer opinion
regarding whether defendant made a false confession, that conclusion was
implicit in both of their proposed testimonies. This would interfere with
the jury’s role in determining the credibility and weight of the confession.
Thus, there was a significant danger of unfair prejudice with respect to the
proposed testimony; and, as discussed above, neither of the expert’s
proposed testimony had high probative value. The trial court did not abuse
its discretion by concluding that MRE 403 was an additional basis on which
to exclude the proffered expert testimony. [Kowalski, unpub op at 5.][10]
9
I disagree with the lead opinion’s conclusion that its “safeguards,” such as the
availability of a limiting instruction, “negate the danger that the expert testimony will
interfere with the jury’s role.” Ante at 30 n 74. If that were the case, a limiting
instruction would be able to cure all concerns relating to the probative value of evidence
being “substantially outweighed by the danger of unfair prejudice,” and MRE 403 would
be rendered meaningless. That is, if it were sufficient to simply instruct the jury not to
allow evidence’s “probative value [to be] substantially outweighed by the danger of
unfair prejudice,” there would be no point in having a court rule that specifically provides
that “evidence may be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice . . . .” MRE 403. The lead opinion’s other “safeguard” of not
allowing the expert to expressly state that the defendant falsely confessed also does little
to alleviate concerns about misleading the jury. When a jury is confronted with expert
testimony that certain interrogation techniques may result in false confessions paired with
testimony that the defendant himself was subject to these interrogation techniques, the
invited inference will be just as misleading as expert testimony stating outright the
conclusion that the defendant falsely confessed. See Peterson, 450 Mich at 392
(CAVANAGH, J., dissenting).
10
Appellate courts in other jurisdictions have likewise concluded that a trial court does
not abuse its discretion when it excludes expert testimony on false confessions. See, for
15
D. LEAD OPINION CASELAW
The lead opinion relies on Peterson, 450 Mich at 352-353, which held that
(1) an expert may testify in the prosecution’s case in chief regarding typical
and relevant symptoms of child sexual abuse for the sole purpose of
explaining a victim’s specific behavior that might be incorrectly construed
by the jury as inconsistent with that of an actual abuse victim, and (2) an
expert may testify with regard to the consistencies between the behavior of
the particular victim and other victims of child sexual abuse to rebut an
attack on the victim’s credibility.
Justice CAVANAGH, joined by Justice LEVIN, dissented and explained that he would have
“continue[d] to limit the use of behavioral reaction testimony to rebuttal purposes” and
“preclude[d] an expert . . . from making any reference to the particular complainant or
example, Wooden, unpub op at 10; 2008-Ohio-3629 at ¶ 29 (holding that the trial court
did not abuse its discretion by excluding Dr. Leo’s testimony because it “would not offer
the jurors any insight outside their own knowledge and experience”); Vent v State, 67 P3d
661, 669 (Alas App, 2003) (holding that the trial court did not abuse its discretion by
concluding that “Dr. Leo’s testimony would not appreciably aid the jury in determining
whether [the defendant] made a false confession”); State v Cobb, 30 Kan App 2d 544,
567; 43 P3d 855 (2002) (holding that “[t]he type of testimony given by [Dr.] Leo in this
case invades the province of the jury and should not be admitted”); Free, 351 NJ Super at
221 (holding that the trial court abused its discretion by admitting expert testimony that
amounted to “‘nothing more than an assertion that false confessions do occur’” because
such testimony “would be of no assistance to the jury”) (citation omitted); United States v
Adams, 271 F3d 1236, 1246 (CA 10, 2001) (holding that “[t]he judge was well within his
discretion in determining that the evidence lacked relevance and would not ‘assist the
trier of fact as required by Rule 702’”) (citation omitted); State v Davis, 32 S.W.3d 603,
609 (Mo App, 2000) (holding that the trial court did not abuse its discretion by excluding
Dr. Leo’s testimony because “the jury would not be aided by Dr. Leo’s testimony”); State
v Ritt, 599 NW2d 802, 811-812 (Minn, 1999) (holding that “the trial court was within its
discretion in excluding the expert testimony” because “the credibility of witnesses in
criminal trials [should not] turn on the outcome of a battle among experts”); State v
Tellier, 526 A2d 941, 943-944 (Me, 1987) (holding that the trial court did not abuse its
discretion by excluding testimony “that false confessions do occur” because “its
probative value was substantially outweighed by the danger of confusing the issues and
of misleading the jury”).
16
defendant” because “[t]he marginal probative value of allowing the expert to further
testify with respect to the particular complainant is substantially outweighed by the
danger of unfair prejudice that the jury will misuse the testimony.” Id. at 381-382, 391.11
The lead opinion also relies on People v Christel, 449 Mich. 578, 580, 592; 537
NW2d 194 (1995), which held that “battered woman syndrome testimony is relevant and
helpful [and thus admissible] when needed to explain a complainant’s actions, such as
prolonged endurance of physical abuse accompanied by attempts at hiding or minimizing
the abuse, delays in reporting the abuse, or recanting allegations of abuse” because
“expert testimony is needed when a witness’ actions or responses are incomprehensible to
average people.” Justice CAVANAGH, again joined by Justice LEVIN, concurred in part
and dissented in part. He would have “limit[ed] the use of the battered woman syndrome
evidence to the narrow purpose of rebutting an inference that the complainant’s
postincident behavior is inconsistent with that expected of rape victims” and would not
have “allow[ed] an expert witness to testify with respect to the complainant’s behavior in
the particular case” because “the marginal probative value of allowing testimony with
respect to the specific complainant’s behavior is substantially outweighed by the unfairly
11
The dissent further explained that such expert testimony
invades the province of the jury to assess credibility. It invites the jury to
give undue weight to testimony that is foundationally and fundamentally
unreliable merely because it is cloaked with the expertise of an expert. It
also invites the jury to believe that the expert knows more than he is telling,
by letting the jurors infer that the expert, who works with sexually abused
children every day, must believe this child’s story or else the expert would
not be testifying. [Peterson, 450 Mich at 391 (CAVANAGH, J., dissenting).]
17
prejudicial danger that the jury may conclude that the expert, in fact, knows that the
complainant has been a battered individual.” Id. at 601-602.
I agree with the lower courts that Peterson and Christel are fully distinguishable.
First, they were decided before this Court amended MRE 702 to conform to Daubert, so
the trial court’s gatekeeper role was different than it is now. Under the pre-Daubert
version of MRE 702, the trial court’s sole function was to determine whether the expert’s
testimony was “generally accepted within the scientific community.” Craig v Oakwood
Hosp, 471 Mich. 67, 80; 684 NW2d 296 (2004). The trial court’s gatekeeping function is
much broader under the current version of MRE 702. “Rule 702 . . . assign[s] to the trial
judge the task of ensuring that an expert’s testimony both rests on a reliable foundation
and is relevant to the task at hand.” Daubert, 509 US at 597; see also Kumho, 526 US at
152 (“The objective of [Daubert’s gatekeeping requirement] is to ensure the reliability
and relevancy of expert testimony.”); Allison v McGhan Med Corp, 184 F3d 1300, 1310
(CA 11, 1999) (“[W]hile Rules 401 and 402 reflect the general policy of the Federal
Rules for liberal admission of evidence, Rule 403, working in conjunction with Rules 702
and 703, militates against this general policy by giving courts discretion to preclude
expert testimony unless it passes more stringent standards of reliability and relevance.
These stricter standards are necessary because of the potential impact on the jury of
expert testimony.”). Furthermore, although it is common knowledge that sometimes
people falsely confess, knowledge of how a sexually abused child or a battered woman
may react to the abuse may not be so common. While it is one thing for this Court to
hold that psychological expert testimony may be necessary in extraordinary and narrow
circumstances involving a sexually abused child or a battered woman-- in which it is the
18
remarkable sense of dependency of the victims on those who have abused them that may
explain their conduct-- it is quite another to extend this proposition, as the lead opinion
does, to commonplace circumstances in which a competent person has confessed to
committing a crime. An ordinary juror may well lack the life’s experience to
comprehend what is entailed in the extraordinary relationships of the sexually abused
child and the battered woman, but deciding ordinary questions of witness credibility lies
at the heart of the juror’s responsibility.12
The lead opinion also relies heavily on People v Hamilton, 163 Mich. App. 661;
415 NW2d 653 (1987), which held that the trial court abused its discretion by excluding
expert testimony concerning the defendant’s psychological makeup because the jury
12
The lead opinion contends that I “unreasonably assume[] that the ordinary juror has the
‘life’s experience to comprehend’ the circumstances of police interrogation . . . and the
effect of a defendant’s particular psychological traits on the outcome of the
interrogation.” Ante at 19 n 48 (citation omitted). However, the lead opinion fails to
explain how Leo’s proposed testimony that the same police interrogation techniques that
cause false confessions also cause true confessions or Wendt’s proposed testimony that
the same psychological traits that cause false confessions also cause true confessions will
in any way help the jury decide whether the “circumstances of police interrogation” or
defendant’s “particular psychological traits” caused him to truthfully or falsely confess.
Furthermore, as the Court of Appeals explained:
[T]he police interrogation of defendant was recorded and the jury
will be able to review the recordings at trial. Additionally, the police
officers will be subject to cross-examination with respect to their
specialized training in the art of interrogation and techniques they may use
to pressure a defendant into confessing to a crime. The jury will be able to
consider the manner in which defendant’s confession was elicited, and the
way in which his statements progressed during the course of the
interrogation, and it will be able to weigh the interrogation and confession
with the remainder of the evidence introduced at trial and make a
determination as to the credibility of the confession. [Kowalski, unpub op
at 4.]
19
should have been able to use this evidence to assess the defendant’s credibility. First, this
case too was decided before MRE 702 was amended to adopt Daubert’s standards.
Second, Hamilton did not address at all whether the probative value of the proposed
testimony was substantially outweighed by the danger of unfair prejudice under MRE
403. Furthermore, the defendant in Hamilton was a 16-year-old child when he
committed the offenses and, although he was 22 years old when he confessed, he was
operating psychologically at the level of a 15-year-old. Hamilton is distinguishable from
the instant case because Hamilton involved a child with a disability, while the instant
case involves an adult with no disability. Therefore, it is not necessary for this Court in
this case to determine whether Hamilton was correctly decided.
E. PRINCIPAL CONCERN
My principal concern with the lead opinion pertains to its holding that expert
testimony concerning false confessions, if reliable, is admissible because it is beyond the
“common knowledge” of the average juror. I disagree with this assertion and am
concerned that such a holding has the potential to open up the floodgates for expert
testimony on a host of reasonably obvious matters of human behavior that have never
been generally thought to require expert testimony. As a result, criminal trials will be
increasingly converted into battles of psychological experts. See State v Sabetta, 680
A2d 927, 933 (RI, 1996) (“[T]o introduce the expert testimony of a psychologist
concerning the unreliability of eyewitness memory . . . would effectively invade the
province of the jury and . . . open a floodgate whereby experts would testify on every
conceivable aspect of a witness’s credibility.”).
20
What other reasonably obvious matters of human behavior are beyond the
“common knowledge” of the average juror, and may therefore necessitate expert
testimony? Is it within the “common knowledge” of the juror that it is possible for a
witness to inadvertently testify inaccurately or for a witness to deliberately testify falsely?
Is it within the “common knowledge” of the juror that some parts of a witness’s
testimony may be true, while others may be false? Is it within the “common knowledge”
of the juror that eyewitness recollections may differ, although each eyewitness is
testifying honestly? Is it within the “common knowledge” of the juror that sometimes
police officers testify falsely and sometimes convicted felons testify truthfully? Is it
within the “common knowledge” of the juror that it is possible for an eyewitness to
misidentify a person? Is it within the “common knowledge” of the juror that memories
fade over time? Is it within the “common knowledge” of the juror that particular forms
of body language may sometimes evidence honesty or dishonesty? Should we or should
we not require expert testimony regarding each of these matters? If not, why not and, if
so, what exactly should be left for the jury to decide on its own?
Until today, “such normal human processes were held to be within the knowledge
and experience of the jury, the triers of fact, thus requiring no expert opinion to clarify or
inform their rational decision-making roles.” Clifford, Expert Testimony, in Towl &
Crighton, eds, Forensic Psychology (Chichester: Blackwell Publishing Ltd, 2010), ch 4,
p 47. After today, however, will criminal trials increasingly become a battle of
psychologists? Although a battle of psychologists may well be useful in contexts beyond
the ken of the ordinary juror, it seems considerably less useful in the context of making
commonsense credibility determinations-- exactly the type of determinations that we
21
have always before entrusted to the jury. See United States v Alexander, 816 F2d 164,
169 (CA 5, 1987) (“Requiring the admission of the expert testimony proffered . . . would
have established a rule that experts testifying generally as to the value of eyewitness
testimony would have to be allowed to testify in every case in which eyewitness
testimony is relevant. This would constitute a gross overburdening of the trial process by
testimony about matters which juries have always been deemed competent to evaluate.”).
Indeed, making such commonsense credibility determinations has always been at the
heart of the jury’s role within our criminal justice system, and this core responsibility
should not, in my judgment, be supplanted by a growing role for psychological expert
testimony.13
IV. CONCLUSION
Because I agree with the Court of Appeals that the trial court did not abuse its
discretion by excluding the expert witness testimony, I would affirm the judgment of the
Court of Appeals.
Stephen J. Markman
13
The lead opinion contends that I have “exaggerated” its ramifications because its
“holding is limited to the principle that a claim of a false confession is beyond the
common knowledge of the ordinary person . . . .” Ante at 35-36. However, given its
holding that “a claim of a false confession is beyond the common knowledge of the
ordinary person,” it is hardly “exaggerated” to question what other reasonably obvious
matters of human behavior are, in the lead opinion’s judgment, also “beyond the common
knowledge of the ordinary person” and thus in need of expert testimony. Indeed, the lead
opinion has already shown its inclination to be highly expansive regarding its “beyond
the common knowledge of the ordinary person” standard by analogizing false
confessions to the dependency of child sexual abuse victims and battered women on their
abusers.
22