However, it is only common sense that a person who does not
give accurate information about the crime may in fact not be
guilty of that crime. While such a person may simply be
withholding evidence or purposely giving false details, this
risk does not destroy the validity of the original hypothesis
that more likely than not, the person is innocent. The Court
does not require a separate scientific basis for the use of
post-admission narrative statements, which is only a technique
by which social psychologists in this field gather their data.
Dr. Ofshe discussed his reluctance to state an ultimate
opinion in the courtroom as to whether a false confession has
actually occurred in any particular case. He would rather
indicate to the jury the possibility of such a confession
given the factors which have been systematically correlated to
the existence of a false confession. Such restraint in the
area of causation increases the reliability of Dr. Ofshe's
In light of this testimony, the Court finds that Dr. Ofshe
is qualified as an expert in the field of coercive police
interrogation techniques which may lead to false confessions.
The Court further finds that the science of social psychology,
and specifically the field involving the use of coercion in
interrogations, is sufficiently developed in its methods to
constitute a reliable body of specialized knowledge under Rule
702. While Dr. Ofshe and his peers utilize observational, as
opposed to experimental, techniques, this is wholly acceptable
in the established field of social psychology.*fn5
The Court cautions Defendant, however, that it will hold Dr.
Ofshe to his word that he will only testify to the correlation
between false confessions and the various factors espoused by
him. Thus, he can testify that false confessions do exist,
that they are associated with the use of certain police
interrogation techniques, and that certain of those techniques
were used in Hall's interrogation in this case. Dr. Ofshe
cannot explicitly testify about matters of causation,
specifically, whether the interrogation methods used in this
case caused Hall to falsely confess. Without experimental
verification, such testimony would be speculative and
prejudicial. Dr. Ofshe will simply provide the framework which
the jury can use to arrive at its own conclusions.
Just as important, Dr. Ofshe cannot testify about the
specifics of the post-admission narrative statement in this
case. Such an endeavor would require Dr. Ofshe to assess the
inconsistencies between Hall's statements to the police and
the evidence presented at trial. Dr. Ofshe has no more
expertise to perform this task than any juror. It is beyond
Dr. Ofshe's knowledge as a social psychologist to assess the
weight of the evidence and the credibility of witnesses. Of
course, Dr. Ofshe can speak of the post-admission narrative
statement as a technique by which social psychologists screen
out true from false confessions in order to form systematic
observations about them. He may even hypothesize to the jury
that the post-admission narrative statement is a valid method
by which to test the truth or falsity of a confession.
However, he cannot go so far as to analyze Hall's
post-admission narrative statement in this manner. That task
is for the jury alone.
One final limitation, and one which the Court does not
believe is in dispute, is that Dr. Ofshe cannot testify to
Hall's psychological or psychiatric impairments or the effect
of these impairments upon his likelihood of confessing
falsely. Dr. Ofshe is not a clinical psychologist nor a
psychiatrist and has no expertise in this area.
Helpful to the Trier of Fact
In addition to requiring that the proposed expert be
knowledgeable about the particular matter at issue and that
his methods be reliable, Rule 702 also requires that his
testimony "will assist the trier of fact to understand the
evidence or to determine a fact in issue." Fed.R.Evid. 702.
The Seventh Circuit has indicated that social scientists in
particular may be able to show that commonly accepted
explanations for behavior are,
when studied more closely, inaccurate. Tyus, 102 F.3d at 263;
Hall, 93 F.3d at 1345.
Dr. Ofshe testified that a common misperception among the
public is that once a person confesses to his guilt, he must
be guilty. Dr. Ofshe's expert testimony challenges this
perception based on systematic observation of data to which
the jury is not privy. If Defendant presents admissible
testimony to show that the police used coercive interrogation
techniques in his case, this would make Dr. Ofshe's expert
testimony helpful to the trier of fact.
The problem is that Hall's account of the interrogation was
given to his lawyer without having him swear under oath to the
truth of that testimony. Moreover, Hall's testimony was not
subject to cross-examination by the Government. Thus, the
interview is not presently admissible. Unless Defendant can
introduce some admissible testimony regarding the manner in
which the interrogation occurred, such as testifying on the
stand, the jury will not hear any evidence of coercive
interrogation techniques and Dr. Ofshe's testimony would be
Even if admissible evidence of coercive interrogation
techniques are introduced, the Court reminds Defendant that
Dr. Ofshe cannot testify about the significance of the
post-admission narrative statement in Hall's case. Far from
assisting the jury, such testimony would unduly usurp the
jury's role as the trier of fact and cloak his factual
determinations in the guise of expert testimony. Such
testimony would simply be too prejudicial under Fed.R.Evid.
403 and will not be allowed.
IT IS THEREFORE ORDERED that the Government's Motion to
Preclude Dr. Ofshe's Testimony at Trial [Doc. # 164] is
DENIED except to the extent discussed in this Order.