United States District Court, E.D. Virginia, Alexandria Division
O'Grady United States District Judge.
this Court is the Government's Motion to Exclude the
Testimony of Brian Cutler (Dkt. 33). The Government seeks to
exclude Defendant's proffered expert Dr. Brian L. Cutler,
who would testify as an expert in social and forensic
psychology about interrogation techniques and the phenomenon
of false confessions. See Dkt. No. 33-1; Dkt. No. 44
Court reviewed the pleadings, as well as an audio recording
and transcript of the interview during which Mr.
Rodriguez-Soriano confessed. Based on this review and oral
arguments heard on December 1, 2017, the Court found that Dr.
Cutler's proposed testimony raised insurmountable
reliability issues and would invade the province of the jury.
The Government's motion was therefore
GRANTED. The Court issued an Order to that
effect on December 1. 2017 to give notice to the parties as
they prepared for the December 6 trial date. The memorandum
opinion that follows more fully explains the Court's
reasoning in granting the Government's motion.
November 15. 2016, a District of Columbia Metropolitan Police
Department Homicide Detective informed federal agents that an
incarcerated cooperator had told him that the cooperator
owned a gun that had been used in a homicide, and that Mr.
Rodriguez-Soriano had purchased the gun for the cooperator.
Dkt. 44 at 2. An agent obtained records from retailer Gander
Mountain which appeared to show that Mr. Rodriguez-Soriano
had purchased two pistols on July 25. 2016. Id.
November 18.2016. two federal agents interviewed Mr.
Rodriguez-Soriano about the guns. Id. When initially
questioned about the firearms, Mr. Rodriguez-Soriano claimed
that the guns had been stolen from his home, and that he did
not know who had stolen them, although he suspected an
acquaintance named "D." Id. After
approximately 15 minutes, one of the agents told Mr.
Rodriguez-Soriano that he did not believe Mr.
Rodriguez-Soriano's explanation for why he no longer had
the guns. Id. He told Mr. Rodriguez-Soriano that
lying to federal agents is a crime punishable by five years
in prison and a large line. Id. at 2-3. The agent
said that he "knew" that Mr. Rodriguez-Soriano had
purchased the guns for someone else,
becauseL"we spoke with him."
Id. at 3. He informed Mr. Rodriguez-Soriano that one
of the guns had been used in a homicide, and he encouraged
Mr. Rodriguez-Soriano to cooperate with the ongoing federal
investigation. Id. Mr. Rodriguez-Soriano ultimately
told the agents that he purchased the guns for two people,
id. The agents drew additional details from Mr.
Rodriguez-Soriano during the remainder of the interview.
Id. That confession is the subject of the proposed
Cutler would have testified that individuals are susceptible
to changing how they think, act or behave in response to
social influence, that certain practices employed by law
enforcement in interrogations are designed to pressure a
suspect to confess, that such practices may increase the
likelihood that a person would provide false statements to
law enforcement, that innocent persons may falsely confess to
crimes they did not commit, and that these practices were
employed in the interrogation of Mr. Rodriguez-Soriano.
See Dkt. 33-1 at 2. The Government objected to such
testimony on the grounds that Dr. Cutler's opinion was
neither reliable nor relevant, and would usurp the role of
the jury with respect to credibility issues. See
Dkt. 33 at 1.
admissibility of expert testimony is governed by Federal Rule
of Evidence 702, which allows for the admission of expert
testimony if: (1) it is potentially helpful to the jury; (2)
it is based on sufficient facts or data; (3) it is the
product of reliable principles and methods; and (4) the
testimony is applied to the facts of the case. See
Fed. R. Evid. 702. The Supreme Court provided a judicial
gloss for this rule in Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579 (1993).
Fourth Circuit has interpreted Daubert as requiring
a two-part lest. See United States v. Dorsey.45 F.3d
809. 813 (4th Cir. 1995). First, the testimony must be
supported by appropriate scientific knowledge, or validation;
and second, it must "assist the trier of fact to
understand the evidence or to determine a fact in
issue." Id. (internal quotations omitted).
There are at least four factors to help the Court determine
whether the first prong of this test is satisfied: "(1)
whether the theory or technique used by the expert can be.
and has been, tested; (2) whether the theory or technique has
been subjected to peer review and publication; (3) the known
or potential rate of error of the method used; (4) the degree
of the method's or conclusion's acceptable within the
relevant scientific community." Id. In
determining whether the second prong has been met, the Court
must be mindful of other evidentiary rules and Rule 403 in
particular, hi. The Court has broad discretion in
deciding whether to admit expert testimony, but it would be
an abuse of that discretion to make an arbitrary decision.
See United States v. Belyea, II, 159
Fed.Appx. 525, 529 (4th Cir. 2005). Instead, the Court is
required to make a nuanced, case-by-case analysis of whether
the proposed expert testimony will assist a trier of fact.
Reliability of the Evidence
Fourth Circuit has not directly opined on the admissibility
of expert testimony regarding false confessions. Most circuit
courts to directly consider the admission of expert testimony
on false confessions have determined such testimony is
inadmissible. See, e.g.. United States v. Hill, 749
F.3d 1250. 1258 (10th Cir. 2014); United States v.
Dixon, 261 Fed.Appx. 800. 810 (5th Cir. 2008);
United States v. Mamah, 332 F.3d 475, 478 (7th Cir.
2003). Similarly, district courts have found false-confession
expert testimony inadmissible. See, e.g.. United States
v. Khweis, No. 1:16-cr-143. Dkt. No. 188 (E.D. Va. June
2, 2017) (O* Grady. J.).
basis for excluding false confession expert testimony is that
the science of false confessions is unreliable. See,
e.g., Mem. Op. United States v. Yazzie, No. 1:1
l-cr-01876-WJ, Doc. 145 at 4-5 (D.N.M. Sept. 17, 2012). There
is no "known or potential error rate" that can be
attributed to false confession studies.' Id.
The multitude of variables at issue in any given
interrogation precludes any effort to reduce the field of
inquiry to a science. Thus, while an expert could identify
"risk factors." he cannot opine on the truthfulness
of a particular defendant's testimony with any degree of
certainty. Id. Indeed, during a colloquy with this
Court, Dr. Cutler acknowledged that he would be unable offer
an opinion as to whether any particular statement by Mr.
Rodriguez-Soriano (or any other person) was in fact false, or
as to whether Mr. Rodriguez-Soriano's confession was
addition to the questionable reliability of false confession
science in general, the court has serious doubts about the
reliability of Dr. cutlers testimony in particular. Dr.
cutlers understanding of this subject matter appears to be
substantially derivative of Dr. Richard. A. Leo's
research in this Field. However, numerous courts have
excluded as unreliable testimony from Dr. Leo that is
similar- to the proffered testimony here. See, e.g.
Jazzie, No. 1:11-cr-01876-WJ. Doc. 145 at 4-5:
People v. Kowakki,492 Mich. 106, 133-34 (2012):
United States v. Deuman,892 F.Supp.2d 881. 885-88
(W.D. Mich. 2012). Dr. Leo's work has also been the
subject of academic criticism, in particular from Judge Paul
Cassell. Judge Cassell reviewed Dr. Leo's work and found
that may of the suspects Dr. Leo claims confessed falsely are
actually almost certainly guilty. See Paul G.
Cassell, The Guilty and the "Innocent": An
Examination of Alleged Cases of Wrongful Conviction from
False Confession, 22 Harv. J. L. & Pub. Pol'y
523 (1999). Cassell and other academics have also ...