Should Pennsylvania Courts Allow False Confession Expert Testimony?

By Felicia Dusha, Features Editor

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To date, 375 people convicted of crimes in the United States have been exonerated by DNA testing.[1] Of the 375 people, about 30 percent confessed to crimes they did not commit.[2] Experts on false confessions have studied these cases and compiled data on the causes of false confessions.[3] These experts have determined that “confessions are not always prompted by internal knowledge or actual guilt, but rather are sometimes motivated by external influences.”[4] 

In “Scientific Evidence” by Paul C. Giannelli, Edward J. Imwinkelried, Andrea Roth and Jane Campbell Moriarty, who is the Associate Dean for Faculty Scholarship at the Thomas R. Kline School of Law of Duquesne University discuss various factors that studies have shown may influence an innocent person to confess. These factors include: “drug intoxication, lie detector failure, misperception of proof, guilt arising from not helping the victim, and mental deficiency.”[5] Furthermore, “some suspects confess because of the stress or pressure of the interrogation or because of implied threats. Often suspects are promised leniency if they confess or are convinced they do not remember committing the crime so they should just confess to relieve their guilt.”[6] False confessions may also arise from “poor police practice, over-zealousness, criminal misconduct, misdirected training, improper use of psychological interrogation techniques, and a refusal to believe a suspect may be innocent.”[7]

Despite various studies on the circumstances that lead people to falsely confess, courts are divided on whether to allow expert testimony on this area of social science. In Commonwealth v. Crawford,[8] the Supreme Judicial Court of Massachusetts found error in a refusal to allow expert testimony because “[t]he testimony of experts may provide invaluable help to judges and to juries in making a determination of voluntariness.”[9] Similarly, In United States v. Hall,[10] the Seventh Circuit ruled that the trial court erred when it excluded expert testimony on false confessions, arguing that expert testimony “would have let the jury know that a phenomenon known as false confessions exists, how to recognize it, and how to decide whether it fits the facts of the case being tried.”[11]

More recently, in People v. Powell,[12] the New York court reaffirmed an earlier decision that expert testimony may be admitted regarding the factors associated with false confessions.[13] While the court held that the trial court did not abuse its discretion in precluding the testimony from the defendant’s expert because the expert did not link her research on the causes of false confessions to the specific circumstances of the defendant’s interrogation, the court also held that the admissibility of such testimony is left to the discretion of the trial court.[14]

In Pennsylvania, however, false confession expert testimony is per se impermissible. The Pennsylvania Supreme Court addressed the issue in Commonwealth v. Alicia.[15] In that case, the Court held in a 4-2 decision that expert testimony regarding false confessions was inadmissible.[16] The defendant, Jose Alicia, was accused of a 2005 killing.[17] Alicia confessed to the crime after five hours of intense police interrogation.[18] Lawyers for Mr. Alicia, who had an IQ of 64, which is well below the traditional threshold for intellectual disability, argued that expert testimony regarding the tendency for certain defendants to falsely incriminate themselves was critical to jurors’ analysis of the client’s confession.[19] Nevertheless, Justice Seamus McCaffery, writing for the majority, stated, “[u]ltimately, we believe that the matter of whether a confession is false is best left to the jury’s common sense and life experience.”[20]

Had Alicia’s expert, Dr. Richard Leo, Professor of Law and Social Psychology at the University of San Francisco,[21]been permitted to testify, he would have educated the jury as to “police interrogation methods, psychological research on interrogation methods, and coercive interrogation methods that can put an innocent suspect at risk of making a false confession.”[22]

Second, he would have discussed the “specific interrogation techniques he discerned from interviewing [Alicia] about what took place during his interrogation, and identify any possible risks of false confession posed by those techniques.”[23] Additionally, Dr. Leo would have discussed the relevance of Alicia’s low IQ to the risk of false confession.[24] According to Dr. Leo, a foremost expert on the behavioral science of false confessions, “[t]here are a number of techniques and a number of personality traits that increase the risk of why somebody would falsely confess, and the explanations are typically based both on the person’s individual make up as well as the techniques that are used during interrogation.”[25]

Lawrence Krasner, one of Alicia’s lawyers and now District Attorney of Philadelphia, said the Supreme Court’s ruling was “a wrong decision by a court staking out an unscientific position that will continue to convict innocent people, encourage improper interrogations by police, and cost citizens a fortune in lost lives and lost taxpayer dollars.”[26] This position is echoed in Justice Thomas Saylor’s dissent, in which he criticized the majority’s “blanket exclusion of social science research based upon unanalyzed assumptions about juror capabilities, even as these assumptions are challenged by demonstrations of wrongful convictions and developing behavioral science.”[27] However, in the eight years since Alicia, the Court has not reversed its holding, reasoning that false confession expert testimony impermissible invades “the jury’s role as the exclusive arbiter of credibility.”[28]

According to Professor Jane Moriarty, the Alicia Court “should have looked to jurisprudence in the area of eyewitness identification, where courts have been willing to admit testimony from experts about factors that may affect the reliability of an identification.”  Similarly, with false confession, jurors may be helped by understanding “the factors that may lead to false confessions and why an innocent person would confess to something he or she did not do.  These are not matters within common understanding.” Notably, the same day the Court decided Alicia, it accepted the use of behavioral science in Commonwealth v. Walker.[29] In Walker, the Pennsylvania Supreme Court accepted testimony by a behavioral science expert witness who explained to jurors the inaccuracies common across eyewitness testimony.[30] 

In contrast to Pennsylvania’s ruling on false confession expert testimony, is the Supreme Court of Utah’s holding just a year earlier in State v. Perea, where the Court held that “like expert testimony regarding eyewitness identification, expert testimony about factors leading to a false confession assists a trier of fact to understand the evidence or to determine a fact in issue,” noting that “[f]alse confessions are an unsettling and unfortunate reality of our criminal justice system.”[31]

According to Professor Moriarty, expert testimony would provide a framework to understand the evidence. Justice Saylor’s dissent “is far more in line with contemporary scientific and legal thought on the subject. The purpose of expert testimony is to educate a jury on factors to evaluate when deciding whether a confession might not be true.” As Professor Moriarty explained, the “trend around the country is to admit more social science evidence, particularly with respect to complex phenomena such as false confession, that may be outside of the jury’s knowledge. 

Indeed, it is difficult to reconcile the Pennsylvania Supreme Court’s decisions in Alicia and Walker. Considering the trend towards the integration of behavioral science expert witnesses into the legal system, the reliability of such testimony, and the number of innocent people who have confessed to crimes they did not commit, it may be time for Pennsylvania to revisit the admissibility of false confession expert testimony.

[1]DNA Exonerations in the United States, INNOCENCE PROJECT (last visited Nov. 22, 2022)

[2] Id.

[3] Pennsylvania Court Rules against False Confession Expert Testimony, INNOCENCE PROJECT (June 10, 14)

[4] Id.

[5] Giannelli, Imwinkelried, Roth, & Moriarty, Scientific Evidence § 7.07 (5th ed. 2012).

[6] Id.

[7] Id.

[8] Commonwealth v. Crawford, 706 N.E.2d 289 (Mass. 1999).

[9] Giannelli, Imwinkelried, Roth, & Moriarty, Scientific Evidence § 7.07 (5th ed. 2012).

[10] United States v. Hall, 93 F.3d 1337 (7th Cir. 1996).

[11] Id.

[12] People v. Powell, 37 N.Y.3d 476 (N.Y. 2021).

[13]Linton Mann III & William T. Russell Jr., In ‘Powell’, Court Reaffirms Admissibility of Expert Testimony on False Confessions, NEW YORK LAW JOURNAL (Dec. 14, 2021)

[14] Powell, 37 N.Y.3d at 491.

[15] Commonwealth v. Alicia, 92 A.3d 753 (Pa. 2014).

[16] Id. at 764.

[17] Id. at 755.

[18] Id.

[19] Colin Holloway, Pennsylvania Supreme Court Rejects Use of False Confessions Expert Witness, EXPERTPAGES (June 17, 2014)

[20] Alicia, 92 A.3d at 764.

[21] An Example of what Dr. Richard Leo says when he testifies on the issue of false confessions, REID (Jan. 31, 2019)

[22] Alicia, 92 A.3d at 758.

[23] Id.

[24] Id.

[25] An Example of what Dr. Richard Leo says when he testifies on the issue of false confessions, REID (Jan. 31, 2019)

[26] Pennsylvania Court Rules against False Confession Expert Testimony, INNOCENCE PROJECT (June 10, 14)

[27] Alicia, 92 A.3d at 766.

[28] Id. at 759.

[29] Commonwealth v. Walker, 92 A.3d 766 (Pa. 2014).

[30] Id. at 793.

[31] Id.

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