People v. Kowalski

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee/Cross-Appellant, v. JEROME WALTER KOWALSKI, Defendant-Appellant/Cross-Appellee.

No. 355456

Court of Appeals of Michigan

September 30, 2021

UNPUBLISHED

Livingston Circuit Court LC No. 08-017643-FC

Before: Beckering, P.J., and Shapiro and Swartzle, JJ.

PER CURIAM.

Defendant appeals by leave granted^[1] an order granting in part a motion to strike filed by the prosecutor. The motion sought to exclude the expert testimony of Dr. Richard Ofshe at defendant's upcoming trial. Defendant argues that the trial court abused its discretion by limiting Dr. Ofshe's testimony. The prosecutor has filed a cross-appeal, contending that the trial court abused its discretion by allowing Dr. Ofshe to testify at all. Because we conclude that the trial court's evidentiary decision did not constitute an abuse of discretion, we affirm.

I. BACKGROUND

The Supreme Court previously summarized the background of this case:

In May 2008, the brother and sister-in-law of defendant Jerome Walter Kowalski, were found dead in their home. Defendant was charged with both murders. Testimony elicited at defendant's preliminary examination and Walker hearing indicates that police questioned defendant about the killings four times over the course of several days: first at defendant's home, next at the Brighton Police Station, then at the Ann Arbor Police Department, and finally at a Michigan State Police post.

During the third interview session, defendant acquiesced to the interviewer's statement that there was a "fifty percent chance [he killed his brother], but a fifty percent chance [he] didn't." Defendant discussed having a "blackout" and "blurred" memory and stated, "I thought I had a dream Thursday, but it was the actual shooting."

Defendant confessed to the murders during the last interview session, which followed a night in jail. Defendant stated that he went to his brother's home, walked into the kitchen, and murdered his brother and sister-in-law after a brief verbal exchange. The record suggests that defendant initially described shooting his brother in the chest from a distance of several feet, although he eventually changed his account after a detective illustrated through role-playing that defendant's first version of events did not corroborate the evidence recovered from the victims' house. At this point in the pretrial proceedings defendant's confession is the primary evidence implicating him in the murders. [People v Kowalski, 492 Mich. 106, 110-111; 821 N.W.2d 14 (2012).]

The question before the Supreme Court was whether the trial court erred by precluding defendant from presenting two expert witnesses in support of his defense that his statements to the police constituted a false confession. Defendant had intended to call Dr. Richard Leo and Dr. Jeffrey Wendt. Leo was to testify regarding false confessions. He classified confessions as "proven false"; "highly probable" or "probable false" confession-and he did this by "comparing the narrative of a defendant's confession with other evidence, checking whether the confession led to independent evidence, and looking for other indicia of reliability, with a researcher determining whether the confession fell into one of the three categories of false confessions." Id. at 112-113 (quotation marks omitted). Wendt, a forensic psychologist, had done a psychological evaluation of defendant and would have testified about how his findings relate to defendant's susceptibility to being manipulated into giving a false confession.

The Supreme Court first held that, contrary to the trial court's ruling, "the claim of a false confession is beyond the common knowledge of the ordinary person," and therefore "expert testimony about this phenomenon is admissible under MRE 702 when it meets the other requirements of MRE 702." Id. at 129. But the Court explained that "[a]n expert explaining the situational or psychological factors that might lead to a false confession may not 'comment on the . . . truthfulness' of a defendant's confession, 'vouch for the veracity' of a defendant recanting a confession, or 'give an opinion as to whether defendant was telling the truth when he made the statements to the police.'" Id. (footnotes omitted). The Court then moved on to the remaining parts of the MRE 702 analysis and held that the trial court did not abuse its discretion by excluding Dr. Leo's testimony on the ground that his methodology was unreliable. See id. at 132-133. But the Court held that the trial court's basis for excluding Dr. Wendt from testifying regarding defendant's psychological profile was erroneous and remanded for further proceedings.^[2] Id. at 136-138.

Defendant was tried before a jury in 2013 and was found guilty of two counts of first-degree murder and two counts of felony-firearm. On stipulation of the prosecutor, however, the trial court granted a motion for relief from judgment because of a structural error.^[3] Defendant is now set to be retried. At the upcoming trial, he seeks to call Dr. Richard Ofshe. Dr. Ofshe holds a Ph.D in sociology and is a professor emeritus of sociology at the University of California at Berkeley. Dr. Ofshe has been admitted as an expert on the subject of police interrogation techniques on more than 380 occasions in federal, state and military courts, and has conducted extensive research on extreme forms of influence in this and other settings. The notice of Dr. Ofshe's proposed testimony provided that he would give expert testimony regarding the persuasive effect of police interrogation techniques and how those techniques are used to elicit a confession from a suspect. Dr. Ofshe said he would also explain that in cases later found to have involved false confessions certain known interrogation techniques were used. Ofshe also intended to apply his knowledge of police interrogation to Kowalski's interrogation, showing that the tactics used by the officers influenced Kowalski to comply with the officer's demand for a confession.

The prosecutor moved to strike Dr. Ofshe's proposed testimony. The prosecutor argued that Dr. Ofshe's opinion would rely on the same methodology and research as Dr. Leo, and thus Dr. Ofshe's testimony was also unreliable and thus inadmissible under MRE 702.

The trial court held a Daubert^[4] hearing where Dr. Ofshe testified at length regarding his qualifications, research, and methodology. Dr. Ofshe explained that his expertise is in police interrogation techniques. He examines how certain tactics-in particular, those used in the Reid method of interrogation-are used by interrogators. Dr. Ofshe divides interrogations into "themes or strings" that run throughout the interrogation. One tactic explained by Dr. Ofshe is an "evidence ploy," which is a statement made to the suspect indicating that there is evidence of some sort linking him or her to the crime. The statement may be true, may be exaggerated, or may be entirely fabricated. Another interrogation tactic is "laying out possible narratives or elements of narratives for the confession statement." As an example, the officer may characterize the crime as "an event that may not appear to be a crime to the suspect to make it easier to adopt . . . this explanation." This is frequently accompanied by the interrogator indicating that if the suspect states "the kind of story that [the interrogator has] been suggesting, that will result in [the suspect] receiving little to no punishment." Dr. Ofshe also testified that he would explain to the jury the importance of distinguishing between "contaminated information" about the crime introduced by the interrogator and statements volunteered by the suspect. Specifically, Dr. Ofshe "would be sensitizing the jury to the importance of distinguishing between contaminated and uncontaminated and looking at volunteered statements and comparing volunteered statements to the evidence of the case." Overall, Dr. Ofshe will "explain to the jury how interrogation works in general and then be able to show the jury how the interrogation in the case at issue works specifically." Dr. Ofshe would not, however, testify that a defendant's confession is or is not false. Dr. Ofshe views his role as "educat[ing] the jurors so they can do their job better and more intelligently." Rather than offering an opinion as to the truth or falsity of a confession, he explained that his testimony would be "about the tactics that are used to move someone from denial to admission-whether they committed the crime or did not commit the crime." Dr. Ofshe studies "what the interrogators do and the react[ion]s of the suspect." He denied that he would explain to a jury how to infer from the interrogation methods used whether a confession was false.

As applied to this case, Dr. Ofshe denied that he would identify portions of Kowalski's confession that did not comport with the facts or were the product of contaminated information. He also would not be explaining to the jury how it should interpret the interrogation tactics used in this case. But Dr. Ofshe did testify that after explaining to the jury how the interrogation process worked, he intended to then take the jury through defendant's interrogation and explain how the process "worked in this particular case." He would "show the entire string that was used to accomplish the change that occurred" from the beginning of the interrogation to the point where "the person begins to adopt the crime or adopt the event at issue."

In a post-hearing brief, defendant argued that Dr. Ofshe's proposed testimony should be admitted under MRE 702 and that all elements of the rule were satisfied. The prosecutor's brief, filed the following day, took issue with every portion of the MRE 702 analysis. The...