DECISION AND ORDER Following the Court’s granting of the defense’s motion to present Mr. Alan Hirsch as an expert on false confessions at trial, the Court conducted a hearing to determine the scope of such expert testimony. The parties filed extensive post-hearing submissions and this Decision and Order follows. I. BACKGROUND Ronald Thomas is charged with, inter alia, Attempted Murder in the Second Degree (Penal Law §110/125.25[1]) and Criminal Possession of a Weapon in the Second Degree (Penal Law §265.03[1][b]). This case stems from allegations that on or about August 12, 2017, at approximately 10:20 p.m., Mr. Thomas shot Omar Graham inside of 250 Crown Street. He was arrested on August 19, 2017 when officers, including Officer Triston Trunk, saw Mr. Thomas and two other men in the vestibule of that location. Mr. Thomas and one of the men allegedly were drinking alcohol and smoking marihuana. He made statements at the scene; while in a cell at the 71st Precinct; and during his interrogation by Detective Michael Rakebrandt which took place approximately nine hours after his arrest. In the underlying motion seeking to admit Mr. Hirsch as an expert, Mr. Thomas claimed that he was “under the influence of prescription pills including Xanax;” that he had not slept in the twenty hours preceding his interaction with the officers who claimed that he was drinking alcohol and smoking marihuana; that there was unrecorded questioning prior to the recorded interrogation; and that he did not sleep at all during the nine-hour period between his arrest and interrogation (Defense Notice of Motion at 4-5). The People countered, inter alia, that Mr. Thomas made inculpatory statements both at the scene (“he’s not going back”); and in his cell before any interrogation by the Detective (“I know what I’m here for, I did what I had to do out of self-defense” and “I did what I had to do because he came after me[,] he kept coming for me, he backed me down”); and that these are newly minted assertions regarding Mr. Thomas’ purported intoxication and/or impairment, or sleep deprivation. Further, they maintained that Mr. Thomas does not appear to be sleep deprived in the interrogation video; he had an extensive criminal history including prior occasions where he gave post-arrest statements; and that even if Mr. Thomas had lacked sleep previously, he was able to sleep/and or rest while he was in custody for nine hours. In support of this assertion, they pointed to testimony at the suppression hearing from Officer Trunk that he had checked on Mr. Thomas every half hour and asked him if he needed food, water or to use the bathroom on each occasion. II. HEARING FACTS1 Mr. Alan Hirsch has been teaching “law-related courses at Williams College” for fourteen years where he is the “chair of the justice and law studies program” (H: 7; 32). He received his law degree from Yale Law School and his undergraduate degree from Amherst College. At Yale, he “took a particular interest in the intersection between law and psychology” and maintained that interest post law school (H: 7-8). “For roughly the last 15 years, [he has] worked largely in the area of confessions — interrogations and confessions” but he has never taught a course at Williams College that was solely devoted to the subject (H: 9; 33). He has published articles on the subject matter in “law journals, scholarly journals, and also mainstream publications, such as the Los Angeles Times” (id.). Publications have included “the Ohio Criminal Law Journal, Berkeley Criminal Law Journal, and the regular law journals at North Dakota Law School and Howard Law Journal” (id.). Although he has only appeared in court as an attorney on one matter, he has been retained to assist with appellate cases including writing “amicus brief[s] or assist[ing] someone with an appeal” (H: 30). He also “started and still operate[s] the first website devoted to this subject” entitled “Truth About False Confessions” (H: 10). “In 2007, the American Bar Association listed it in their top 100 law-related websites, and they listed it first among criminal law-related websites” (id.). There are two kinds of experts who specialize in the area of confessions. “There is the mental health professional, a clinical psychologist or a psychiatrist, who may evaluate particular individuals to determine whether they are susceptible, and then there is the expert like [Mr. Hirsch] who is either a social psychologist or legal scholar whose expertise is in, primarily, the interrogation methods that contribute to false confessions” (H: 8). Mr. Hirsch does not have any “advanced degree in psychology” or neuroscience, nor does he have “statistical or sociological training” (H: 25). He has “been retained as an expert consultant” in about two hundred cases, including thirty-four where he has testified in court (H: 11). In 2016, he testified as an expert in a murder case in Steuben County, New York (id.). Courts in New York have either limited or precluded his testimony (H: 66-68). “[He has] testified in federal court once and been excluded once” (H: 68). Mr. Hirsch defines interrogation as “the phase of an investigation in which law enforcement has determined someone is, if not a suspect — if not guilty, at least a suspect, and then questions him in order to elicit a confession” (H: 13). The “primary goal” is to “elicit a confession” (id.). There are three categories of false confessions: “[t]here is the voluntary false confession, which is someone comes forward outside of an interrogative setting, and claims to commit a crime, which it turns out they did not. There is what we call the coerced compliant false confession, which is when the suspect knows he is innocent but, nevertheless, concludes that confessing is the only or best way out of a difficult situation. And there’s the internalized false confession, which is, in an interrogative setting, in which the defendant — the suspect…actually comes to believe that he did or, at least, may have committed the crime” (H: 13). “There’s a voluminous literature, many books and countless articles” on the subject of false confessions (H: 11). Specifically, “there are analyses, empirical analyses of proven false confessions. There’s observational studies of interrogations. There are a few laboratory experiments. And then there is a vast literature [he] would call miscellaneous [on] all aspects of the issue being analyzed” (H: 11-12). A substantial portion of the literature relates to law enforcement interrogation methods (H: 12). Mr. Hirsch, however, has “never conducted [his] own studies in relation to false confessions” (H: 39). Nor has he had any personal or professional experiences that involve him either being the subject of an interrogation or assisting law enforcement in an interrogation (H: 39-40). Although the frequency of false confessions is unknown, there is data on the issue. “[S]tarting with the Innocence Project, in the late 1980′s and throughout that 1990′s, there have been hundreds of false convictions that have been identified…roughly one-fourth, had confessed to the crimes” (H: 14). Scholars in the field believe that there are many undiscovered false confessions: “First, most criminal laws takes place below the radar of the public. And, for example, most criminal cases are resolved by guilty plea. But, once that happens, there’s no longer an incentive for either side to prove a confession false. Secondly, a great many false confessions have been so established by DNA evidence. But, in numerous cases, there is no relevant DNA evidence available or no mechanism for testing it. Third, we’ve come to learn that a widespread interrogation method predictably contributes to false confessions. Finally, a self-report study of 600 professional investigators found that the investigators themselves estimated that roughly five percent of innocent suspects confess” (H: 14-15). The widespread method Mr. Hirsch believes contributes to false confessions is the Reid method. “Reid & Associates has, by far, the most widespread manual, and conducts the most widespread training sessions” (H: 12). The manual is entitled “Criminal Interrogations and Confession” (id.). Mr. Hirsch wrote “a thorough critique of the Reid method in [the] Ohio State Criminal Law Journal” (id.). He has also “been on panels with and [he] certainly had discussions with officers who use the Reid technique” (H: 41). The Reid method has nine steps but “they can usefully be reduced to two, because it is the combination of those two steps that contribute to false confessions…confrontation and minimization” (H: 15). Confrontation is when “the interrogator will confront the suspect with evidence of his guilt. This includes or this primarily consists of communicating certainty to the suspect that they know he is guilty. All efforts to deny guilt and assert innocence are aggressively cut off…the idea is to make it clear to the suspect that they know he is guilty, and nothing he says will convince them otherwise” (H: 15-16). Minimization is when you “frightened the suspect into thinking that there is nothing he can do to establish his innocence, now law enforcement minimizes the crime. These are various ways of suggesting that, if the defendant confesses, the consequences will not be severe. They might, for example, suggest his role was secondary, or there were mitigating circumstances, or there are really numerous minimization themes” (H: 16). The combination of confrontation and minimization through the Reid method is known to contribute to false confessions. “[A]nalyses of proven false confessions” found “the Reid method used in many of those cases. Second, there are a few laboratory experiments which replicate that effect. And, finally — and this is crucial — there is a literature which applies basic principles of decisionmaking [sic] to this area, and once we get past our intuition than an innocent person would not confess, it actually becomes pretty clear why, under the circumstances created by the Reid method, an innocent person might confess” (H: 17). “[T]he Reid method, its goal and its effect, when done well — and this is the combination of confrontation and minimization…is to make the suspect feel that maintaining innocence is futile. You’re not going to get anywhere. On the other hand, confessing guilt is benign. It is not going to produce bad consequences. Now, if you just stop and think about it, if someone comes to believe that…maintaining their innocence will not get them out of this awful situation, but confessing will, that it’s the only or, at least, best escape, it makes perfect sense. Just as a cost benefit analysis, whether conscious or unconscious, it makes perfect sense that a person would escape by confessing” (H: 17-18). “People act in their self-interest. However, we often act in our short-term self-interest at the expense of our long-term self-interest. People tend to be impulsive…A suspect in a criminal case may, if he really thinks it through, realizes that long-term confessing is not going to worked [sic] out, but the immediate relief and the sense that punishment won’t be that severe will overcome that. And there is also the fact there is an authority figure involved. There is an extensive literature establishing that people tend to be obedient to authority figures” (H: 18-19). “So when we bring these principles together in the context of an interrogation, you have people led to believe that the only and best escape is a confession. It may contradict their long-term interests, but it certainly meets their short-term interests, and this is being communicated to them by an authority figure, and on top of that, under circumstances designed to create stress, anxiety, and eventually, even desperation to escape” (H: 19). This is how the Reid method contributes to false confessions. Wicklander and Zulawski, a competitor of Reid, “announced that they would no longer be using what was a version of the Reid method because of their recognition that it was contributing to false confessions” (H: 20). Mr. Hirsch does agree, however, “that the Reid technique also leads to true confessions” (H: 53). In the instant matter, Mr. Hirsch was retained to “assess the interrogation and confession of the defendant and, particularly, to identify whether there were any problems with the interrogation” (H: 20). He twice watched the “videotaped interrogation of the defendant, accompanied by the transcript,” and spoke with defense counsel about the case (H: 20; 26). He also reviewed the transcript of the pretrial suppression hearing held in the matter. It is his opinion that Detective Rakebrandt “engaged in an aggressive use of the Reid technique” (H: 20-21). “[T]here was confrontation. He made it quite clear from the beginning and throughout that he was convinced he knew the defendant had shot the victim. And at the outset, he employed what is a crucial technique for Reid & Associates, which was to present the defendant with two scenarios: Either you did this, but you shot him for no reason, or you did it in self-defense. This is a step that Reid recommends. It is a minimization technique — it’s actually a combination of confrontation and minimization, which is, they consider a crucial step. It’s the one that elicits a confession at the end of an interrogation and it is, for obvious reasons. If you’re led to believe that it is A or B, and B is far less severe, you’re going to take B” (H: 21). Further, “Detective Rakebrandt engaged in about the most relentless minimization [he had] ever seen” (id.). “[H]e said, right at the outset: It’s all his fault [the complainant's]. You had no choice. Self-defense was a recurring theme of this interrogation. He said at one point, using the term minimization, which is very rare for officers to do during an interrogation, I’m going to minimize the shit out of this. I am going to minimize this as much as I can. He said: You’re going to be fine. He said that several times” (H: 21-22). “Here, he was implying there won’t be any punishment at all, as a person can validly claim self-defense, and they could be acquitted, and that coupled with: You’re gonna be fine…this was…a really extreme form of minimization” (H: 22). Although more interrogations are now recorded, it is the “prior interrogation or prior contact between law enforcement and the suspect and that compromises [the] ability to assess the confession because the information may be been supplied before what [is seen] on screen, interrogation tactics may have been used that weren’t used once [the recording began]. So, it is really important that everything be recorded, not simply part of an interrogation” (H: 22-23). He further indicated that the literature reflects that there are certain people or certain categories of people who are more susceptible to interrogation tactics, including people who are under the influence of drugs or alcohol, those who are sleep deprived and those with certain personality traits (H: 23-24; 72-73). Nor is it “uncommon for people with a criminal record and people who have been interrogated before to confess falsely” (H: 79-80). Prior to the hearing, Mr. Hirsch had neither met nor had any conversation with Mr. Thomas (H: 73-74). He did not “undertake any psychological evaluation of” Mr. Thomas but opined that Mr. Thomas “was subject[ed] to the interrogation tactics that contribute to false confessions” (H: 23-24). He is “only opining about the Reid technique used by Detective Rakebrandt in the videotaped interrogation” (H: 85). He does not plan to “give an opinion about how Officer Trunk’s interrogative methods affected the defendant’s statement to Officer Trunk” nor does he plan to opine on Detective Rakebrandt’s “methods and how that affected the defendant” (H: 85-86). III. DISCUSSION The defense argues that “Professor Hirsch’s proposed trial testimony can be divided into five reasonably discrete sections: (1) biographical information establishing professor Hirsch’s qualifications; (2) background information regarding the phenomenon of false confessions, police interrogation and the Reid Method of interrogation; (3) explanation of how basic principles of decision-making can lead to false confessions when police use the Reid Method; (4) description of police use of the Reid Technique in the course of Ronald Thomas’ videotaped statement; [and] (5) description of other factors that can be correlated with a false confession, specifically lack of sleep and intoxication by drugs or alcohol” (Defense Post-hearing Memorandum at 2-3). According to the defense, “[t]he proffered testimony outlining the phenomenon of false confessions, police interrogations and the Reid Method of Interrogation provides necessary context for a jury to understand Professor Hirsch’s subsequent testimony regarding the Reid Technique and its use in this case” (id. at 3). Further, “[t]he testimony describing the police use of the Reid Method in the interrogation of Ronald Thomas is the gravamen of Professor Hirsch’s testimony as it constitutes the primary application of his expertise to the specific circumstances of this case” (id.). He “will only outline the correlation between the Reid Method and false confessions and opine that the Reid Method was used extensively in the interrogation of Ronald Thomas” and “would testify that both sleep deprivation and intoxication can be correlated with false confessions; he will not, however, opine that Mr. Thomas was intoxicated or fatigued” (id.). Lastly, the People’s “cross-examination failed to elicit any information that would support a limitation on Professor Hirsch’s testimony” (id. at 4). The People urge the Court to limit Mr. Hirsch’s proposed testimony (People’s Memorandum of Law to Renew and Reargue at 1). They aver that “(A) Professor Hirsch is not qualified to be an expert in interrogation techniques or false confessions; (B) Hirsch’s testimony that false confessions happen will not assist the jury and an appropriate jury instruction will obviate the need for an expert; (C) Professor Hirsch’s testimony that the Reid Technique can affect the reliability of a confession is conjecture and not based on sufficient facts or data; and (D) Professor Hirsch lacks the requisite knowledge of the Defendant’s personality, psychological makeup, and prior criminal interrogation experiences” (id. at 3). Alternatively, “Professor Hirsch should be precluded from (1) any testimony regarding the number of undiscovered false confessions; (2) the Reid Technique and it’s correlation to false confessions in generally [sic] and its application in this case; [and] (3) testimony about specifics statistics that lack objective data and may cause the jury to speculate about the prevalence and frequency of false confessions” (id.). Preliminarily, the People’s combined motion to reargue and renew is denied as they have failed to allege matters of fact or law allegedly overlooked or misapprehended by the Court in determining the prior motion and failed to set forth new facts or the existence of a change in the law to reverse the Court’s prior determination (CPLR §2221; Kugler v. Kugler, 174 AD3d 876, 877 [2d Dept 2019]). “As a general rule, the admissibility and limits of expert testimony lie primarily in the sound discretion of the trial court. ‘It is for the trial court in the first instance to determine when jurors are able to draw conclusions from the evidence based on their day-to-day experience, their common observation and their knowledge. And when they would be benefited by the specialized knowledge of an expert witness’” (People v. Lee, 96 NY2d 157, 162 [2001], quoting People v. Cronin, 60 NY2d 430, 433 [1983]). “Essentially, the trial court assesses whether the proffered expert testimony ‘would aid a lay jury in reaching a verdict’” (id., quoting People v. Taylor, 75 NY2d 277, 288 [1990]). “When a trial court finds that expert testimony is appropriate, it is incumbent on the judge to determine the scope and extent of the testimony to be offered in light of the evidence before the jury” (People v. Brown, 97 NY2d 500, 506 [2002]). “An expert’s alleged lack of experience is a factor which affects the weight to be given to his or her opinion, but does not affect its admissibility” (Doviak v. Finkelstein & Partners, LLP, 137 AD3d 843, 847 [2d Dept 2016]). Further, “an expert opinion based on personal training and experience is not subject to a Frye analysis” (id.). Experts who rely on social or behavioral science as a basis of their opinion do not have to have “formal training in psychology or the behavioral sciences” and “may be qualified without specialized academic training through ‘[l]ong observation and actual experience’” (Price ex rel. Price v. New York City Hous. Auth., 92 NY2d 553, 559 [1998], quoting Meiselman v. Crown Hgts. Hosp., 285 NY 389, 398; see also, Caprara v. Chrysler Corp., 52 NY2d 114, 121, rearg denied 52 NY2d 1073 ["an expert's competency can be derived just as well "from the real world of everyday use' as from a laboratory"]). And in the context of eyewitness identification, for example, the Court of Appeals has recognized that “although there may be risks associated with allowing an expert to apply research findings from experiments on the reliability of eyewitness identification to real-life identifications, these findings — produced through sound, generally accepted experimentation techniques and theories, published in scholarly journals and subjected to peer review — have over the years gained acceptance within the scientific community…’[I]n recognition that expert testimony of this nature may involve novel scientific theories and techniques, a trial court may need to determine whether the proffered expert testimony is generally accepted by the relevant scientific community’” (People v. LeGrand, 8 NY3d 449, 454-55 [2007], quoting Lee, supra at 162). “False confessions that precipitate a wrongful conviction manifestly harm the defendant, the crime victim, society and the criminal justice system. And there is no doubt that experts in such disciplines as psychiatry and psychology or the social sciences may offer valuable testimony to educate a jury about those factors of personality and situation that the relevant scientific community considers to be associated with false confessions. While the expert may not testify as to whether a particular defendant’s confession was or was not reliable, the expert’s proffer must be relevant to the defendant and interrogation before the court” (People v. Bedessie, 19 NY3d 147, 161 [2012]). In addition “…the admissibility of expert testimony that is probative of a fact in issue does not depend on whether the witness has personal knowledge of a defendant or a defendant’s particular characteristics” (People v. Aphaylath, 68 NY2d 945, 947 [1986]). Notably, the United States Supreme Court has long recognized the use of the Reid method by law enforcement. Thus, in the seminal case of Miranda v. Arizona, 384 US 436 (1966), when reviewing the underpinnings of interrogations, the Court noted “[a] valuable source of information about present police practices, however, may be found in various police manuals and texts which document procedures employed with success in the past, and which recommend various other effective tactics. These texts are used by law enforcement agencies themselves as guides” (id. at 448-49, citing Inbau & Reid, Criminal Interrogation and Confessions [1962]). “The officers are instructed to minimize the moral seriousness of the offense, to cast blame on the victim or on society. These tactics are designed to put the subject in a psychological state where his story is but an elaboration of what the police purport to know already — that he is guilty. Explanations to the contrary are dismissed and discouraged” (id. at 450). And the Court further explained, “The authors [of Criminal Interrogation and Confessions] and their associates are officers of the Chicago Police Scientific Crime Detection Laboratory and have had extensive experience in writing, lecturing and speaking to law enforcement authorities over a 20-year period. They say the techniques portrayed in their manuals reflect their experiences and are the most effective psychological stratagems to employ during interrogations” (id. at 449 n 9). Based upon Mr. Hirsch’s testimony at the hearing, “although he [has] no academic degree in the behavioral sciences, his skill, training, knowledge and experience [are] adequate” (Price, supra at 559) to allow him to testify as to the following: (1) biographical information establishing his qualifications as an expert in false confessions; (2) background information and studies regarding false confessions, police interrogations and the Reid method of interrogation, including identification of all nine steps of the Reid method; (3) explanation of how basic principles of decision-making can lead to false confessions when police use the Reid method; (4) description of other factors that can contribute to false confessions including lack of sleep and intoxication by drugs or alcohol; and (5) his opinion regarding whether the police used the Reid method in this case. Mr. Hirsch will not be allowed to testify as to the following: (1) the number or frequency of undiscovered false confessions; (2) Mr. Thomas’ mental state during the interrogation; (3) his ultimate conclusion as to the reliability of Mr. Thomas’ confession; and (4) his characterization of the overall nature of Detective Rakebrandt’s interrogation techniques. CONCLUSION Based upon the foregoing, Mr. Thomas will be permitted to present Mr. Alan Hirsch as an expert on false confessions at trial within the parameters set forth above. This constitutes the Decision and Order of the Court. Dated: May 11, 2020
