PEOPLE OF MI V JEROME WALTER KOWALSKI
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
August 26, 2010
Plaintiff-Appellee,
v
No. 294054
Livingston Circuit Court
LC No. 08-017643-FC
JEROME WALTER KOWALSKI,
Defendant-Appellant.
Before: BANDSTRA, P.J., and FORT HOOD and DAVIS, JJ.
PER CURIAM.
Defendant appeals by leave granted the trial court’s pretrial order granting plaintiff’s
motion to strike the testimonies of defendant’s proffered experts, Dr. Richard Leo and Dr.
Jeffery Wendt. We affirm.
On May 1, 2008, the bodies of defendant’s brother and sister-in-law were found in their
home; each had suffered multiple gunshot wounds. Defendant and his brother had a strained
relationship and rarely spoke with each other. However, shortly before the murders, the two
brothers encountered each other at their mother’s funeral.
During the course of interviews with police officers, defendant made numerous
incriminating statements, ultimately confessing to the murders. Defendant was charged with the
crimes; thereafter, he moved to suppress the incriminating statements he made to police.
Defendant claimed that his statements, which constitute the primary evidence against him, were
involuntary and obtained in violation of his Miranda1 rights. Following a Walker2 hearing, the
trial court denied this motion.
Some time after the Walker hearing, defendant submitted a notice of intent to introduce
the expert testimonies of Drs. Leo and Wendt. Defendant stated that Dr. Leo would be called to
“give expert testimony concerning false confessions, that is that they occur and some of the
reasons that they are known to occur.” Defendant explained that Dr. Leo would testify “that
1
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
2
People v Walker (On Rehearing), 374 Mich 331, 337-338; 132 NW2d 87 (1965).
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false confessions are associated with certain police interrogation techniques and that some of
those interrogation techniques were used in this case” and would “offer an opinion that the risk
factors associated with false and unreliable confessions, especially persuaded false confessions,
were present in this case.” Dr. Wendt, a forensic psychologist, would testify that he
administered several psychological evaluations to defendant and concluded that “the totality of
the circumstances surrounding [defendant’s] communication with law enforcement resulted in
conditions that increased his likelihood of false confession.” However, Dr. Wendt would not
offer testimony on the ultimate issue of whether defendant made a false confession; instead, his
testimony would “address the psychological and situational factors bearing on the credibility and
reliability of [defendant’s] statements to the police.”
Plaintiff moved to suppress defendant’s proffered expert testimony, arguing that it was
inadmissible under MRE 702 and Daubert v Merrell Dow Pharmaceuticals, Inc, 509 US 579;
113 S Ct 2786; 125 L Ed 2d 469 (1993). Following a Daubert hearing, during which both
experts testified, and after considering numerous published articles on the subject, the trial court
ruled that the proposed expert testimony of Dr. Leo regarding the correlation between certain
police interrogation techniques and false confessions and the proposed testimony of Dr. Wendt
concerning defendant’s personality traits was not admissible under MRE 702. The trial court
reasoned that Dr. Leo’s proposed expert testimony was not reliable because it was not the
product of proper principles and methodologies. The trial court held that Dr. Leo’s methodology
was unreliable and highly questionable because it did not include objective and verifiable
criteria. The trial court further concluded that Dr. Leo’s testimony would be unhelpful to the
jury and was not relevant inasmuch as Dr. Leo agreed that the same interrogation techniques that
produce false confessions also produce true confessions. The trial court noted that a jury could
analyze whether defendant’s confession contained certain details about the crime and conclude
on its own whether the confession lacked credibility. The court also noted that the police
witnesses could be cross-examined on the interrogation techniques and methods they use, and
that the jury could consider this information in weighing the reliability of defendant’s confession.
The trial court then concluded that Dr. Wendt’s proposed testimony was not relevant and could
not be linked in any way to proof of a false confession.
Defendant argues that the trial court’s evidentiary ruling constituted an abuse of
discretion, which deprived him of his constitutional right to present a defense. We disagree.
This Court reviews a trial court’s decision to admit or exclude expert witness testimony,
including the trial court’s determination with respect to an expert’s qualifications, for an abuse of
discretion. People v Steele, 283 Mich App 472, 480; 769 NW2d 256 (2009). A trial court
abuses its discretion when it reaches an outcome “falling outside [] [the] principled range of
outcomes.” People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003). However, this Court
reviews de novo preliminary questions of law such as whether a rule of evidence or a statute
precludes admission of evidence. People v Katt, 468 Mich 272, 278; 662 NW2d 12 (2003).
A criminal defendant has both a state and federal constitutional right to present a defense
“which includes the right to call witnesses.” People v Yost, 278 Mich App 341, 379; 749 NW2d
753 (2008), citing US Const, Am VI; Const 1963, art 1, § 20; People v Hayes, 421 Mich 271,
278-279; 364 NW2d 635 (1984). Part of a defendant’s right to present a defense may include the
right to introduce evidence concerning the “manner in which a confession was secured”
including evidence concerning the “physical and psychological environment that yielded the
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confession . . .” Crane v Kentucky, 476 US 683, 688-691; 106 S Ct 2142; 90 L Ed 2d 636 (1986).
However, “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.’’” Yost, 278 Mich App at 379, quoting Hayes, 421 Mich at 279, and
Chambers v Mississippi, 410 US 284, 302; 93 S Ct 1038; 35 L Ed 2d 297 (1973). Whether
defendant was denied his right to present a defense involves a question of law that this Court
reviews de novo. Steele, 283 Mich App at 480.
MRE 7023 governs the admissibility of expert 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.
“The admission of expert testimony requires that … the [expert’s] knowledge is in a particular
area that belongs more to an expert than to the common man.” Surman v Surman, 277 Mich App
287, 308; 745 NW2d 802 (2007). ““[E]xpert testimony is not admissible unless it will be helpful
to the fact finder. Such testimony is unhelpful when it is unreliable or irrelevant . . . and also
when it merely deals with a proposition that is not beyond the ken of common knowledge.’”
Gilbert v Daimler-Chrysler Corp, 470 Mich 749, 790; 685 NW2d 391 (2004), quoting Zuzula v
ABB Power T & D Co, Inc, 267 F Supp 2d 703, 711 (ED Mich, 2003). Pursuant to MRE 702, a
trial court must ensure that “all expert opinion testimony, regardless of whether it is based on
novel science, is reliable.” Steele, 283 Mich App at 481, citing Gilbert, 470 Mich at 781. “MRE
702 requires the trial court 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.” Gilbert, 470 Mich at 779.
“[R]eference in MRE 702 to ‘scientific’ evidence implies a grounding in the methods and
procedures of science, and the rule’s reference to ‘knowledge’ connotes more than subjective
belief or unsupported speculation.” Id. at 781 (quotations omitted).
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
3
This rule incorporates the standards set forth in Daubert. People v Unger, 278 Mich App 210,
217; 749 NW2d 272 (2008).
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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).
The trial court also excluded Dr. Leo’s testimony on the grounds that the proposed
testimony was not reliable because it was not based on sufficient facts or data, and it was not the
product of reliable principles and methodologies. MRE 702. These conclusions were not
outside the “principled range of outcomes.” Babcock, 469 Mich at 269. The principles and
methodologies used by Dr. Leo to arrive at his opinion that certain interrogation techniques
correlate with false confessions were not shown to be reliable. The evidence showed that Dr.
Leo’s conclusions were based on the study of confessions that he subjectively determined,
without definitive evidence, were false. Dr. Leo admitted during his testimony that the same
interrogation tactics that produce false confessions also produce true confessions. Dr. Leo did
not explain how age or mental illness affected a person’s decision to confess to police.
Furthermore, there is no way to test or quantify Dr. Leo’s methodologies or to decipher a known
error rate. In sum, the trial court did not abuse its discretion by determining that Dr. Leo’s
proposed testimony was not based on reliable methods and principles.4
4
Courts in several other jurisdictions have also affirmed a trial court’s exclusion of expert
testimony concerning false confessions: see State v Wooden, unpublished opinion of the Ohio
Court of Appeals, issued July 23, 2008 (Docket No. 23992) (affirming the trial court’s exclusion
of Dr. Leo’s testimony as unreliable, noting that Dr. Leo “could offer no expert insight into the
actual likelihood that coercive interrogation tactics will lead to a false confession,” and because
it is “based on nothing more than common sense insofar as it would assist the jury in assessing
the reliability of the confession”); Vent v State, 67 P3d 661, 667 (Alaska App 2003) (affirming
trial court’s exclusion of Dr. Leo’s proffered testimony on the basis that there was no way to
quantify or test his conclusions and because the proffered testimony would invade province of
the jury and is based on “common sense rather than scientific knowledge”), State v Cobb, 43 P3d
855, 869 (Kan App 2002) (affirming trial court’s exclusion of Dr. Leo’s proffered testimony on
basis that the expert testimony would invade province of the jury); State v Free, 351 NJ Super
203; 798 A2d 83 (2002) (holding that the trial court erred by admitting expert testimony on false
confessions because the proposed testimony was not scientifically reliable and would not assist
the trier of fact); State v Davis, 32 SW3d 603, 608-609 (Mo App 2000) (affirming the trial
court’s exclusion of Dr. Leo’s proffered expert testimony because it would have interfered with
(continued…)
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Similarly, the trial court’s determination that Dr. Wendt’s testimony would not assist the
jury was not outside the “principled range of outcomes” and did not amount to an abuse of
discretion. Babcock, 469 Mich at 269. Here, according to defendant’s notice of intent to
introduce expert testimony, Dr. Wendt advised that he would discuss situational factors bearing
on the “credibility and reliability of [defendant’s] statements to police.” Dr. Wendt testified that
defendant was easily influenced and vulnerable to persons in authority. Dr. Wendt’s proposed
testimony related to the credibility of defendant’s confession to police, the determination of
which is within the sole province of the jury. Moreover, 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. While
Crane, 476 US at 683, holds that a defendant has the right to introduce evidence concerning the
circumstances surrounding his confession, exclusion of Dr. Wendt’s testimony here does not
deprive defendant of that right. The jury will be able to review the recorded portions of the
interrogation, and the police witnesses will be subject to cross-examination regarding the
techniques they use during interrogation. Further, defense counsel can argue that the lack of
evidence in the case shows that defendant’s confession is not reliable.
We also agree with the trial court’s conclusion that, with respect to the proposed expert
testimony generally, the danger of unfair prejudice outweighed any probative value and thus it
was inadmissible pursuant to MRE 403. “Unfair prejudice exists when there is a tendency that
the evidence will be given undue or preemptive weight by the jury, or when it would be
inequitable to allow use of the evidence.” People v Taylor (After Remand), 252 Mich App 519,
521-522; 652 NW2d 526 (2002), citing People v Mills, 450 Mich 61, 75-76; 537 NW2d 909
(1995), mod 450 Mich 1212 (1995). 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.
Babcock, 469 Mich at 269; Steele, 283 Mich App at 480.
Defendant’s argument that the proffered expert testimonies are admissible pursuant to
People v Hamilton, 163 Mich App 661, 663-664, 669; 415 NW2d 653 (1987), is unpersuasive.
In Hamilton, the defendant proposed to admit the expert testimony of Dr. Michael Abramsky, a
clinical psychologist who interviewed the defendant about a month after he confessed to police.
Id. at 663. Specifically, Dr. Abramsky proposed to testify and explain the “psychological
reasons and factors which would motivate” defendant to make incriminating statements to
police. Id. Dr. Abramsky opined that the defendant was “operating psychologically at the level
of a 15 year old” and had “extremely bad judgment” and other characteristics of immaturity. Id.
(…continued)
the province of the jury).
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at 664. This Court held that the trial court erred by excluding the proposed expert testimony,
concluding that the testimony was admissible because it was relevant to the “weight and
credibility of defendant’s statements” to police. Id. at 665. This Court cited Crane, 476 US at
683, and held that a criminal defendant has the right to introduce evidence concerning the
circumstances surrounding his confession. Id. at 666-668. In applying the former version of
MRE 702, this Court stated that the critical inquiry in regard to the admissibility of expert
testimony involved determining whether the testimony “will aid the factfinder in making the
ultimate decision in the case.” Id. at 667.
Contrary to defendant’s assertion, the trial court’s order here did not conflict with the
holding in Hamilton; Hamilton is distinguishable. Dr. Leo proposed to testify regarding certain
techniques that affected other suspects and criminal defendants whereas, in Hamilton, the expert
proposed only to offer testimony concerning the defendant’s psychological makeup. Moreover,
when Hamilton was decided, MRE 702 did not incorporate the standards set forth in Daubert,
and 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. See
Gilbert, 470 Mich at 782 (noting that, under the current version of the rule, “MRE 702 mandates
a searching inquiry, not just of the data underlying expert testimony, but also of the manner in
which the expert interprets and extrapolates from those data”). Here, as discussed above, Dr.
Leo’s testimony was not based on reliable principles and methodologies. Furthermore, Dr. Leo’s
testimony would not have been of any help to the jury where Dr. Leo admitted that the same
interrogation techniques that produce false confessions also produce true confessions and that the
reliability of a confession is determining by comparing it to the other evidence in the case.5
Likewise, Dr. Wendt proposed to testify concerning defendant’s personality traits and
how those personality traits were consistent with those of other persons who offered false
confessions as described in the literature. Defendant argues that, at minimum, Dr. Wendt should
be permitted to provide testimony concerning defendant’s personality traits, similar to the expert
testimony in Hamilton, 163 Mich App at 661. However, in Hamilton, the expert merely
proposed to testify that the defendant had the psychological maturity level of a 15-year-old.
Here, Dr. Wendt proposed to testify that defendant had personality traits that would allow him to
be easily influenced by police interrogators, thus directly implying, at least, that the police
influenced him into making a false confession. Additionally, Dr. Wendt asserted that he would
testify that defendant’s personality traits were similar to the traits possessed by others who made
false confessions. The expert in Hamilton did not propose to testify concerning the personality
traits of any other individual or how the defendant’s traits compared to others. Furthermore, Dr.
Wendt’s proposed testimony would not have helped, and may have confused, the jury in this
case because Dr. Wendt agreed that the same personality traits that cause false confessions can
also lead to true confessions.
5
We also note that defendant’s argument that Hamilton is binding precedent on this Court is
incorrect. While published opinions have precedential effect under the rule of stare decisis,
MCR 7.215, a panel of this Court is only bound by published opinions issued after November 1,
1990. MCR 7.215(J)(1).
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Similarly, defendant’s argument that the proposed expert testimony in this case is akin to
expert testimony concerning battered women’s syndrome is unpersuasive. In People v Christel,
449 Mich 578, 591-592; 537 NW2d 194 (1995), our Supreme Court held that, where helpful and
relevant, expert testimony regarding the “generalities or characteristics” of battered women’s
syndrome may be admissible to describe the “uniqueness of a specific behavior brought out at
trial.” Unlike expert testimony on battered women’s syndrome, where an expert can link specific
behavioral traits of a female witness to the specific, widely known and accepted syndrome,
neither of defendant’s proposed experts could link police interrogation techniques or personality
traits to false confessions. Both experts acknowledged that the same techniques and traits
correlated with both false confessions and true confessions. Additionally, while a jury may
become confused by a battered women’s actions or responses to abuse, a trial court does not
abuse its discretion in reasoning that a jury is more likely to realize the coercive nature of a
police interrogation and understand that some suspects make false confessions in that kind of
setting.
Finally, defendant’s argument that the proposed expert testimony is similar to expert
testimony concerning victims of child sexual abuse is also unpersuasive. In People v Peterson,
450 Mich 349, 373; 537 NW2d 857 (1995), amended 450 Mich 1212 (1995), our Supreme Court
held that “[a]n expert may testify regarding typical 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 abuse victim or to rebut an attack on the victim’s credibility.”
Again, unlike the expert testimony discussed in Peterson, neither of the experts here could testify
regarding common factors that typically explain or lead to a false confession. Both experts
acknowledged that the same police interrogation techniques and personality traits correlated with
both true and false confessions. Thus, the expert testimony would not have been helpful to the
jury’s determination of the reliability of defendant’s confession in this case.
We affirm.
/s/ Richard A. Bandstra
/s/ Karen M. Fort Hood
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