The prosecution’s expert witness at the Frye hearing conclusively opined that
according to FBI figures, there are 900,000 arrests per year which, over a 23-year period add up to 20 million. [the expert witness] divided this figure by 60, which was the number of confessions that Dr. Ofshe had identified as false in a 1996 article. From this, [the expert witness] concluded that the frequency of false confessions is one hundredth of one percent.In other words, it’s a legal urban myth, such a far-fetched outlier, such a red-herring, such a stretch that no reasonable judge would ever let a reasonable jury consider such an outlandish idea. Of course, the math makes no sense, since confessions aren’t involved in all 20 million arrests, and of those where they are involved, aren’t always contested.
What sort of expert on false confessions would make such an absurd claim?
Former Scalia law clerk, prosecutor and later federal judge turned Utah law professor. The patron saint of victim’s rights and Volokh Conspirator. That Paul Cassell.
This comes from a two-part post at Appellate Squawk, usually biting and witty in its rending of the robes. The posts are biting as always, but not quite as witty. In fact, they’re very serious. The case was Adrian Thomas in Troy, New York, where a 25 year old was manipulated into confessing to the murder of his 4-month-old son. That there was no murder was of little concern.
There’s one little problem: there was no head trauma. No fractures, no abrasions, no nothing. Two leading medical specialists testified at trial that the baby died of natural causes. The medical records, beginning with the mother’s pregnancy complications and the baby’s premature birth, showed that he died of a systemic and chronic infection.
This didn’t stop the trial of Adrian Thomas from proceeding, with its videotaped confession. The defense sought to introduce expert testimony of how the police interrogation methods induced the defendant to say whatever was necessary at the moment. The court refused to allow the defense to call its witness, saying the jury could see the videotape and reach its own conclusion. After all, scholar, judge, expert witness Paul Cassell said there was really no such thing as a false confession.
Cassell’s contribution to the truth-seeking process is his notion that nothing can be known about false confessions or their causes until we know how many there are. Just like nothing can be known about the flu until we know how many people have it. In the meantime, he wants to have videotaped confessions instead of Miranda warnings. Needless to say, there should be no expert testimony on the non-existent phenomenon of false confessions.
The trial judge swallowed this whole.
The basis upon which Paul Cassell was allowed to opine as an expert in false confessions seem simultaneously empty and full. How much more can one ask of an expert than to be endorsed as a scholar and former federal judge? If he says he’s an expert, he must be, despite having absolutely no qualifications whatsoever to support his claim.
There is an occasional debate among law professors about selling one’s scholarly credentials, whether to the highest bidder or to further a personal agenda. That Cassell has been a slavish ideologue in the fight for victims to be recognized before the crime is too well-known for dispute, but that it extends as far as flagrantly inserting himself in the war against the innocent is a new thing.
Will other scholars have anything to say about this? Will the professoriate condemn their brother Cassell’s proffer of expertise as “no-such-thing-as-a-false-confession” expert? We’ll see.
In the first part of the story, Appellate Squawk makes a point that I’ve argued for a long time, that the videotaping of confessions is not necessarily the panacea that so many on the criminal defense side believe it to be. As this case shows, videotaping of only part of the interaction between cops and defendant provides the opportunity to conceal manipulative and coercive conduct, leaving the portion taped and presented to the jury making the police appear kindly and supportive. It can be the coup de grace of false confession, conclusively proving the confession while conveniently concealing the coercion that led up to it.
Of course, had the defense expert, social psychologist and actual friggin expert on police interrogation techniques, Dr. Richard Ofshe, been allowed to testify, perhaps all of this would have been understood by the jury and the kindly confession videotape rejected for the sham it was.
But scholar, judge and expert for sale, Paul Cassell, made sure that wouldn’t happen. And some say lawprofs have no impact on the lives of real people.