Last month, the Superior Court of Pennsylvania decided Commonwealth v. Harrell, a case regarding an expert witness testifying about coerced confessions. In a 2-1 decision, the Superior Court found that the defense is not entitled to calling an expert to testify about a false confession.
In 2008, Michael Harrell confessed to police to killing two people in a brutal double murder. Clearly regretting his decision to confess, Harrell took his case to trial. His defense attorney intended to call an expert, Dr. Ofshe, to testify about coerced confessions. Dr. Ofshe would tell the jury about harsh police interrogation techniques and why sometimes an innocent person will admit to having committed a crime that he or she did not commit. The trial court held a Frye hearing and concluded that “the issue of false confessions was not beyond the ken of the average layperson”, and thus precluded Dr. Ofshe from testifying. Harrell lost at trial and received consecutive life sentences for two counts of first-degree murder, in addition to lesser sentences for other offenses.
Harrell appealed his judgment of sentence based on six different arguments; of most interest to us is the issue of precluding Dr. Ofshe from testifying. Rather questionably, the majority found that the trial court did not err in precluding the expert from testifying because, by the trial court’s own rationale, the jury should be able to decide on their own whether or not a defendant’s confession was a coerced one.
In his dissent, Judge Donohue disagreed with the majority on two main issues. First is the purpose of expert testimony and how beneficial Dr. Ofshe’s testimony would have been. Rule 702 of the Pennsylvania Rules of Evidence states that:
If scientific, technical or other specialized knowledge beyond that possessed by a layperson 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.” Pa.R.E. 702
While the majority believes that the jury would not have benefited from Dr. Ofshe’s testimony, they have no evidence to support this conclusion. Aside from polling each and every juror about their knowledge of the phenomenon of false confessions (which was not done), there is no way of knowing how well-versed the jury is in this area.
Another point of Judge Donohue’s dissent is the result of the Frye hearing. As we have discussed in many previous blogs, a Frye hearing is conducted to ensure that “the methodology an expert used [to reach his conclusion] is generally accepted by scientists in the relevant field”. Dr. Ofshe is renowned in his field, has multiple degrees in relevant subject areas, and uses a well-accepted scientific method to screen confessions that may have been coerced. Objectively, there was no reason that his testimony did not pass the Frye test. And since false confessions and police coercion are inherently counter-intuitive, an expert in the field would be beneficial to jurors. Unfortunately for Harrell, Dr. Ofshe was not allowed to testify.
It will be interesting to see how this decision will affect future cases. There is the possibility that the Pennsylvania Supreme Court will agree to hear the case and reach a different conclusion; such an outcome would be a big win for criminal defendants. On the other hand, the dicta in Judge Donohue’s dissent sets forth a convincing argument for why such testimony should be allowed, but has no precedential value.