Defendant Allen Wiggins moves pursuant to CPL §440.10 to vacate his 1999 conviction for Murder in the First Degree. Defendant contends that his trial counsel was ineffective because counsel failed to offer expert testimony on the psychology of false confessions.

Both sides have submitted long and excellent papers in connection with the present motion; the Court commends the parties for their diligence. Despite the extraordinary length of the submissions, however, the issues presented by the motion are fairly simple.

Although defendant was (of course) convicted after trial, the record nevertheless makes it plain that his trial counsel did fine work throughout. Defendant's belated claim that trial counsel should have called a "false confession expert" at defendant's 1998 murder trial is clearly meritless; New York law at that time would not have permitted the admission of such expert [*2]testimony. Moreover (although the point is not absolutely essential to deciding the present motion), the proposed testimony outlined by defendant's current false confession expert provides good reason for skepticism as to the wisdom of the few and scattered cases that have approved the receipt of such testimony.

The factual background of this case has been set forth at length in the briefs filed in connection with defendant's prior appeals, and therefore will not be repeated in detail here. See People v. Wiggins, 304 AD2d 322 (1st Dept.), lv. den. 100 NY2d 625 (2003), and People v. Wiggins, 24 AD3d 263 (1st Dept. 2005).

In brief, on October 13, 1995, defendant Wiggins shot and killed Tarik Brown outside Brown's home on Franklin Avenue in the Bronx. A little later that day defendant (along with a cousin and friend) appeared at the home of defendant's long-time acquaintance and sometimes girlfriend Maxine Waiters. Defendant told Waiters he had shot someone, and persuaded Waiters to assist defendant in retrieving the murder weapon (which had been temporarily stored in a garbage can in Crotona Park).

Defendant Wiggins was first questioned by the police about the murder of Tarik Brown on November 3, 1995, after defendant was arrested while driving a car still registered to the dead man. Defendant was questioned by the police again on November 4, 1995 and on April 15, 1996. (On April 15, defendant was also questioned by an Assistant D.A., together with a Detective, on videotape.) In each instance, defendant denied shooting Brown, but he gave inconsistent versions of what had happened - - initially denying, but later admitting, that he was present at the scene of the murder. (Defendant also falsely insisted that he had never met Maxine Waiters before the day of the shooting.)

On May 17, 1996, the police arranged for Maxine Waiters to speak to the defendant while she secretly wore a recording device. Ms. Waiters did not succeed in eliciting a direct confession from defendant; but defendant's conversation with Waiters did point to defendant's guilt. Waiters repeatedly complained that defendant had previously misled her by telling her only that he had shot Tarik Brown (and not that he had in fact killed Brown). In response, defendant explained to his girlfriend that "things happen," told her that it "don't [sic] matter," and instructed her not to "worry about it." (Defendant thus tacitly acknowledged both that he had killed Brown, and that he had previously told Waiters only that he had shot Brown.) In his taped conversation with Waiters, defendant also freely admitted that he had disposed of the murder weapon.

On May 21, 1996, the police questioned defendant again, at length. Once again, defendant initially denied that he had shot Brown. But, almost immediately after being advised that he was under arrest for murder, defendant finally admitted to the police that he had indeed shot and killed Tarik Brown. Later that same evening of May 21, defendant was questioned on videotape by an Assistant District Attorney, with a Detective also present. Once again, defendant admitted that he had killed Brown. Defendant explained that defendant's cousin had pressured defendant to kill Brown in order to satisfy a loan of two thousand dollars that the [*3]cousin had previously made to the defendant. Defendant also (somewhat vaguely) attempted to claim that defendant's cousin and/or his cousin's friend "Dee" Garcia had forced defendant to kill Brown by threatening violence to defendant and/or defendant's family.

A Huntley hearing was conducted before the Honorable Alexander Hunter in November of 1998, and defendant's motion to suppress his statements was denied. Defendant proceeded to trial before Justice Hunter and a jury. At trial, the defense contended in substance that defendant's May 21 videotaped confession was false, and that his earlier April 15 videotaped statement - - in which defendant admitted being present at the murder scene, but claimed that "Dee" Garcia was the actual shooter - - was essentially true. Defendant's trial counsel contrasted the two videotaped interrogations, and argued at length that various details from the videotapes demonstrated that defendant had falsely confessed in the later (May 21) interrogation solely in response to the manipulation of the Detective who was present. As trial counsel put it in his very able summation: "You can make a parrot say what you want it to say if you push it hard enough and give it a cracker. [Detective] Sam Robinson got Allen Wiggins to say what Sam Robinson needed him to say. And you can see it all on that tape."

The jury found defendant guilty, and on February 10, 1999 Justice Hunter sentenced defendant to life imprisonment. Two appeals followed. The conviction was affirmed in all respects, but the Appellate Division ultimately reduced defendant's sentence to twenty-five years to life. (Notably, defendant was represented on appeal by the same excellent attorneys who have filed his present §440.10 motion; yet it was not until the year 2007 - - that is, nearly nine years since defendant's trial - - that defendant first asserted that his trial lawyer's performance was purportedly so very poor as to effectively deny defendant his Sixth Amendment right to counsel.)

Defendant's present CPL §440.10 motion argues in substance that defendant's trial counsel was ineffective because he did not attempt to call an expert witness on the psychology of false confessions at defendant's trial.^[FN1]

For some unstated reason, defendant does not also argue that trial counsel should have called such an expert at defendant's Huntley hearing. However, in the interests of justice (and judicial economy) the Court will sua sponte consider that point too. (Indeed, the argument that an expert could and should have been called at the Huntley hearing herein would seem to have somewhat greater weight. That is so because there is no danger that expert testimony might cause jury confusion or invade the jury's fact-finding function at a Huntley hearing, and because the proposed testimony of defendant's present expert is generously larded with hearsay and double-hearsay that could be admissible only at a hearing, but not at a trial.) [*4]

Notably, defendant does not raise any other complaint regarding his trial counsel's performance, and properly so. The record is plain that trial counsel: made appropriate pre-trial

motions; vigorously challenged the voluntariness of defendant's statements at the Huntley hearing; effectively cross-examined police witnesses concerning their conduct of the investigation; pushed forcefully (though unsuccessfully) for the admission of evidence concerning statements purportedly made by another suspect in the case; rigorously cross-examined police witnesses concerning the circumstances of defendant's confession; and argued with great skill during summation that the jury should not believe defendant's confession because it was the product of psychological manipulation by the police. See People v. Sieber, 26 AD3d 535, 536 (3d Dept.), lv. denied 6 NY3d 853 (2006) ("defendant received meaningful representation as defense counsel pursued reasonable trial strategies, adequately prepared for trial, vigorously cross-examined prosecution witnesses and gave an effective summation . . ."). Defendant does not and cannot attack his trial counsel's performance on any of these points. His present motion in based solely on trial counsel's failure to call a false confession expert.

In support of defendant's motion defendant presents (among other items): 1) an Affidavit from defendant's trial counsel, David Hammer; 2) psychological evaluations of the defendant prepared at the time of his sentence and re-sentence; and 3) a lengthy Affidavit by Dr. Solomon Fulero setting forth the expert testimony he would propose to give concerning defendant Wiggins' confession.

Trial counsel Hammer's Affidavit is quite brief. He notes that he had just been appointed to the 18-B Murder Panel at the time he represented defendant and had never before handled a murder case. Mr. Hammer avers that he did not consider calling an expert witness on false confessions at defendant's trial because of his "inexperience in handling cases of this type and

magnitude,"^[FN2] and that Mr. Hammer would certainly call such a witness today. (Notably, Mr. [*5]Hammer makes no effort to address whether New York law would have permitted him to call such an expert witness at the time of defendant's trial.)

The psychological evaluations demonstrate that defendant does indeed have significant mental limitations. His I.Q. is 75, which is characterized as "low borderline"; moreover, several of the sub-scores that are incorporated in the composite 75 I.Q. would - - standing alone - - place defendant in the category of the mentally retarded. Throughout his youth defendant was placed in various Special Education settings, and the psychological evaluations confirm that those placements were proper.

Dr. Fulero's Affidavit is truly remarkable in its scope. There are a few points that arguably fall within the scope of Dr. Fulero's legitimate expertise scattered about the Affidavit, chiefly in the final few paragraphs. Dr. Fulero opines there that defendant's "limited intellectual abilities make him much more susceptible to suggestion by authority figures and may make him more likely to adjust his story to fit the facts given to him by law enforcement," and that defendant's youth "contributes to his increased vulnerability". (Of course, Dr. Fulero's views on the defendant's vulnerability in an interrogation setting might be entitled to somewhat greater weight if Dr. Fulero had actually met, or at least spoken with, the defendant.)

However, Dr. Fulero's Affidavit also includes numerous assertions that plainly have no basis in his expertise in psychology. For example, Dr. Fulero freely opines that his expert testimony would likely have altered the outcome of defendant's trial - - but that is obviously a complex legal judgment concerning trial strategy and how certain evidence might impact a jury, a judgment has nothing to do with Dr. Fulero's scientific expertise.^[FN3] [*6]

Dr. Fulero also holds forth at great length about what tactics police officers are trained to employ when interrogating suspects. However - - if this is a field of expertise at all - - it would appear that the appropriate person to testify as an expert in that field would be someone with law enforcement training and experience, and not a psychologist. (Some of Dr. Fulero's assertions about purportedly typical police tactics are startling. For example, he asserts - - apparently based largely on second-hand anecdotal evidence that comes from criminals - - that police officers routinely use coercive tactics in unrecorded interrogations, and then falsely deny their misconduct later on. Again, this factual assertion - - whatever its merits - - seems well beyond the scope of Dr. Fulero's scientific expertise.)

Similarly, Dr. Fulero attempts to establish (or at least imply) that false confessions are a common phenomenon. To that end, he points to literature that documents 125 cases (over how long a period is unclear) in which DNA evidence has proven confessions to be false. Dr. Fulero makes no effort to estimate how many confessions are truthful, or to quantify what proportion of confessions are demonstrably false. He merely trumpets the fact that some confessions have been proven false.^[FN4] (Of course, the realization that people are sometimes untruthful, and that confessions are sometimes false, is hardly a recent scientific breakthrough; rather, that is the very reason why many legal systems - - including our own - - traditionally impose special corroboration requirements in criminal cases built on confessions. See People v. Lytton,257 NY 310 (1931); CPL §60.50.^[FN5] ) Dr Fulero's presentation thus appears to be badly slanted in favor of criminal defendants, rather than the work of a disinterested expert.

That Dr. Fulero does not strike this Court as an especially impressive expert witness is not, of course, dispositive. In a jury trial it is the impact of an expert witness on a jury - - and not a judge - - that matters. Moreover, many of the weaknesses in Dr. Fulero's proposed testimony are not unique to Dr. Fulero; they reflect the very limited progress that has so far been made in developing a truly scientific body of knowledge about false confessions. See Commonwealth v. Robinson, 864 N.E.2d 1186, 1190 (Mass. 2007) (On cross-examination leading expert on false confessions "conceded that there was no empirical data on the number of false confessions, and [*7]that there is no scientific basis for distinguishing true from false confessions. Indeed, he admitted that one of his articles stated Further research in the field is sorely needed . . . [T]he current empirical foundation may be too meager to . . . qualify as a subject of scientific knowledge.'")

Most important, defendant's present motion asserts that trial counsel was ineffective because he failed to call any expert on false confessions - - and not merely that he failed to call Dr. Fulero. Thus defendant's motion calls upon the Court to consider in retrospect the state of New York law with respect to the admissibility of such evidence at the time at the time of defendant's trial.

There is an obvious and fatal flaw in defendant's present motion. Defendant claims that his trial counsel was ineffective because trial counsel failed to offer testimony at defendant's trial from an expert on false confessions. Yet it is relatively clear that such evidence was not permitted by New York law at that time. Thus it would have been futile for trial counsel to have offered such evidence; and trial counsel should not now be faulted merely because he quite sensibly chose (or reflexively elected) not to pursue a futile course of action.

It has long been settled that the admissibility and limits of expert testimony lie primarily in the discretion of the trial court. In passing upon the admissibility of expert testimony New York's State courts continue to adhere the principles set forth in the venerable case of Frye v. United States, 293 F. 1013 (C.A.D.C. 1923). The threshold question whenever expert testimony is offered is whether the proposed testimony lies "within the ken of the typical juror." If it does, then expert testimony will generally not be permitted. People v. Cronin, 60 NY2d 430 (1983). If the testimony concerns matters outside the typical juror's knowledge, then the trial court must further consider the degree of "acceptance of such evidence as reliable by the relevant scientific community." People v.Wesley, 83 NY2d 417, 422 (1994).

At the time of defendant's trial it appears that there was only one reported New York case dealing directly with expert testimony at trial concerning false confessions. That case was People v. Lea, 144 AD2d 863, 864 (3d Dept. 1988).^[FN6] There defendant proposed to present expert [*8]testimony from a psychiatrist - - much like that proffered by Dr. Fulero - - to the effect that defendant's deferential personality was such that he was likely intimidated by the atmosphere of the police interrogation room. The Third Department flatly rejected such expert testimony, reasoning that it was irrelevant and unnecessary, might cause jury confusion, and lacked the degree of certainty that would give it probative force.

Relying on Lea, in People v. Green, 250 AD2d 143 (3d Dept. 1998) the Third Department again rejected proffered expert testimony "concerning defendant's interrogative suggestibility that purportedly made him susceptible to providing a false confession". 250 AD2d at 146. The Green Court stated in no uncertain terms:

[In Lea we] reasoned that it was not sufficiently relevant to outweigh the confusion it would inject into the trial and, moreover, was lacking in the degree of certainty that would give it probative force . . . While some Federal courts have permitted this type of testimony . . . , they do not offer persuasive precedent since, instead of applying the Frye "general acceptance test" that we apply . . . , they followed the more liberal Daubert standard . . . Therefore, as there is nothing in the record to persuade us to depart from our holding in People v. Lea . . . , we find that County Court did not abuse its discretion in rejecting defendant's proffered expert testimony . . ..

The more recent case of People v. Days, 31 AD3d 574 (2d Dept.), lv. den. 7 NY3d 811 (2006), comes to a similar result. There the Second Department - - relying, inter alia, on Lea and Green - - held that the trial court properly exercised its discretion in precluding expert testimony as to the defendant's susceptibility to police interrogation techniques. See also Shaw v. Miller, 2001 WL 739241 (E.D.NY, 2001.)

It appears that the only reported New York State case where a court has permitted expert testimony on false confessions is People v. Kogut, 10 Misc 3d 305 (S. Ct. Nassau Co., 2005). There the trial court conducted an extensive Frye hearing (that included testimony from Dr. Fulero), and then ruled that one of two false confession experts proffered by the defense could testify at trial concerning a) techniques used in police interrogations, and b) the frequency of false confessions; but the defendant's expert in Kogut was nevertheless not permitted to give any opinion concerning the defendant Kogut's particular confession.

There is thus only one reported New York State case that has permitted false confession expert testimony, and even there the trial court severely restricted the scope of such testimony. Moreover, the precedential value of Kogut is somewhat questionable because the Kogut court did not discuss and (at least apparently) wholly failed to consider any of the prior reported New [*9]York State cases on the subject of false confession expert testimony - - including Lea, Green, and Shepard, supra.

In other words, every reported New York State case - - with the exception of the 2005 Kogut case, decided long after defendant's trial - - rejects false confession expert testimony. Nevertheless, defendant now contends that such testimony was in fact admissible in New York State courts at the time of defendant's 1998 trial. In support of that remarkable assertion defendant can present only anecdotal evidence from two leading experts on false confessions (Dr. Saul Kassin and Dr. Sanford Drob) indicating, in summary fashion, that they gave expert testimony in five unreported New York State court cases between 1997 and 2000.

It is difficult to know what to make of such anecdotal evidence. Because these cases are not reported, it is not clear what kind of expert testimony was offered, what portion of that offered testimony was in fact received, and why.

More important, the trial judge in defendant's case was - - like any other New York State trial judge - - bound by precedent established in reported cases decided by New York State's appellate courts. In particular - - under the rule of Mountain View Coach v. Storms, 102 AD2d 663 (2d Dept. 1984) - - the trial court here was bound by the decision in People v. Lea, unless and until that decision was overruled by another Appellate Division decision, or by the New York State Court of Appeals. People v. Shakur, 215 AD2d 184 (1st Dept. 1995); People v. Anderson, 151 AD2d 335, 338 (1st Dept. 1989).

Accordingly - - defendant's anecdotal evidence notwithstanding - - it is fairly clear that expert testimony about false confessions would not have been permitted under New York State law at the time of defendant's trial. See People v. Lea and People v. Green, supra.^[FN7] Moreover, it appears that such testimony would not be permitted under New York State law today either. See People v. Days, People v. Shepard, and People v. Philips, supra.

It therefore makes little sense to fault trial counsel for failing to offer expert testimony concerning false confessions. In all likelihood, the trial court would have barred such testimony, and properly so.

Similarly, trial counsel cannot fairly be faulted for failing to call a false confession expert at defendant's Huntley hearing. New York law would not permit such testimony at a Huntley hearing, either at the time of defendant's trial, People v. Rogers, 247 AD2d 765 (3d Dept. 1998), or today, People v. Casiano, 40 AD3d 528 (1st Dept. 2007).

Indeed, defendant's own submission on this motion makes it plain that - - even apart from the question of admissibility - - defendant's trial counsel cannot in fairness be labeled as "ineffective" simply because he did not call a false confession expert. After exhaustive research, defendant's present counsel can identify only a handful of New York State cases - - and unreported cases at that - - where some form of expert testimony about false confessions was offered prior to the year 2000. It is therefore apparent that the very idea of offering the [*10]testimony of a false confession expert in a New York State criminal matter was a novel "cutting-edge" strategy at the time of defendant's trial.

Without restating the already well-known standards for effective assistance of counsel - - see Strickland v. Washington, 466 U.S. 668 (1984) and People v. Caban, 5 NY3d 143 (2005) - - it is thus further apparent to this Court that defendant cannot legitimately argue that his trial counsel's conduct somehow fell outside "the wide range of reasonable professional assistance" guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 669. Less than a half-dozen New York State criminal defense attorneys had ever attempted to offer a false confession expert testimony at the time of defendant's trial; trial counsel Hammer's decision not to offer such testimony was therefore typical for a good responsible defense lawyer at that time. See Strickland at 688 ("The proper measure of attorney performance remains simply reasonableness under prevailing professional norms") (emphasis added).

Indeed, a number of circumstances peculiar to defendant Wiggins' case made it an especially poor case for expert testimony about false confessions. The notion that, because of his mental limitations, defendant Wiggins was particularly susceptible to manipulation by police interrogators was belied by the plain facts of his case. To begin with, defendant was questioned about the murder at great length by the police on at least two separate occasions prior to the day of his confession, and defendant quite successfully resisted all efforts made by the police (and by an Assistant District Attorney) to elicit a confession on those occasions. It is thus difficult to credit the suggestion that defendant's concededly limited intellectual abilities made him especially susceptible to psychological pressure exerted by the police during an interrogation. And, on the other hand, the evidence showed that defendant freely volunteered the fact that he had shot the victim in a private conversation with his girlfriend on the day of the murder - - a conversation in which police tactics and defendant's alleged susceptibility to suggestion obviously played no part.

In other words, this was a case where: 1) the evidence demonstrated that defendant was in fact remarkably resistant to police interrogation; and 2) the inculpatory admissions that defendant made to his girlfriend on the very day of the murder strongly corroborated the confession that defendant ultimately (and reluctantly) made to the police many months later. See People v. LeGrand, 8 NY3d 449, 456-57 and 459 (2007) (noting that case for admissibility of identification expert witness testimony is weaker where there is other evidence to corroborate the identification of the defendant); see also People v. Young, 7 NY3d 40, 45 (2006). Accordingly, this was not a good case in which to present expert testimony suggesting that defendant had confessed merely because his mental limitations made him particularly vulnerable to psychological manipulation by the police.

The case of Singletary v. Fischer, 365 F. Supp.2d 328 (E.D.NY 2005) does give the Court some pause here. In that federal habeas matter, the District Court vacated a 1998 New York State murder conviction on the ground that defendant Singletary's trial counsel was ineffective because he failed to call an expert on false confessions. Plainly, there are some similarities between Singletary and the present case.

But there are important differences too. Singletary involved a mentally retarded (and marijuana-intoxicated) defendant who was intentionally tricked ^[FN8] by the police through a series of deliberate falsehoods into making a confession. There are no credible allegations of police trickery in this case, and defendant Wiggins is not mentally retarded - - although he does have significant mental limitations.

Equally important, there was no evidence in Singletary (at least as far as the Singletary decision indicates) that defendant Singletary (like defendant Wiggins here) freely made inculpatory admissions to a non-police witness,^[FN9] or that defendant Singletary was able to resist making a confession in two separate and lengthy police interrogations.

For all these reasons, the Singletary case was a much better candidate than defendant Wiggins' case for the use of expert testimony concerning false confessions.

Moreover, although this Court is reluctant to express disagreement with the learned District Court Judge in Singletary,^[FN10] there is good reason to hesitate before applying its holding elsewhere. That is so because the Singletary decision does not grapple with the key issue highlighted here - - that is , whether expert false confession testimony was (or is) admissible in New York State's courts.^[FN11] Since it does not appear that such evidence would have been admissible at defendant Wiggins' trial, it makes little sense to assert that trial counsel erred by failing to offer it.

Taking a somewhat broader view, the benchmark for judging any claim of ineffectiveness of counsel is whether trial counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Strickland, 466 U.S. at 693. Thus defendant Wiggins' motion indirectly presents the question whether - - in the absence of expert testimony concerning false confessions - - his trial was fair and the verdict just.

Defendant's present motion is of a piece with a general tendency among many courts to broaden the role of experts in criminal trials. For example, in the dozen or so years that have passed since defendant Wiggins murdered Tarik Brown, New York State courts have become increasingly receptive to expert testimony concerning the vagaries of eyewitness identification. See People v. LeGrand, 8 NY3d 449 (2007).

Moreover - - although there is considerable disagreement among the many courts that have considered the issue - - some federal and State courts have permitted expert testimony on false confessions much like that proffered by defendant here. See State v. Cobb, 43 P.3d 855, 868 (Kan. App. 2002) ("State and federal courts are split on whether to admit expert testimony on false confessions.") See also N. Soree, "When the Innocent Speak: False Confessions, Constitutional Safeguards, and the Role of Expert Testimony," 32 American Journal of Criminal Law 191 (Spring 2005); P.Gianelli and E. Imwinkelreid, Jr., Scientific Evidence (3d Ed. 2007), §9.09, "False Confessions."

The problem of setting appropriate limits for purported expert testimony is not a new one in American law. It appears that as far back as 1665 a Dr. Brown of Norwich, Connecticut was permitted to testify concerning his expert opinion (which included learned references to recent scientific discoveries made in Denmark) that the conduct of the accused was consistent with a finding that the defendant had been "bewitched" by fairies.^[FN12]

As the many decisions precluding expert false confession testimony have indicated, and as defendant Wiggins' present motion illustrates, there is good reason for skepticism as to the wisdom of receiving such evidence. To begin with, the determination whether a person - - and, in particular, a person who confesses to a crime - - speaks the truth is a determination that lies close to the very heart of the jury's role in our system of justice. See United States v. Barnard, 490 F.2d 907, 912 (9th Cir. 1973) ("[C]redibility, however, is for the jury - the jury is the lie detector in the courtroom"); United States v. Benson, 941 F.2d 598, 604 (7th Cir. 1991) ("[C]redibility is not a proper subject for expert testimony"). This is an area where the jury's prerogative to decide the facts - - based on the wisdom that jurors develop over the course of a lifetime of every day experience - - should be jealously guarded; and courts should be especially wary of efforts to introduce "junk science" that purports somehow to divine honesty from [*12]dishonesty. See United States v. Adams, 271 F.3d 1236, 1246 (10th Cir. 2001) (rejecting false confession expert testimony: "The offered testimony does little more than vouch for the credibility of another witness' and thereby encroaches upon the jury's vital and exclusive function to make credibility determinations'") (citations omitted).

Recognizing a lie is not a subject beyond the ken of the average juror. Lay people must and do decide every day whether or not they are being lied to. Lay people are also perfectly aware that some confessions are false - - if for no other reason than that the theme of false confession is a staple of our news media, literature and drama, especially television drama. Recent highly publicized news stories - - like those of the exonerated Central Park Jogger defendants and of John Mark Karr (who tried to claim responsibility for the death of Jon Benet Ramsey) - - have made the phenomenon of false confession especially prominent.

In practice, criminal defense lawyers have no difficulty arguing, and jurors have no difficulty accepting (in an appropriate case), the idea that a defendant may confess falsely out of one of many possible motivations. (For example, a defendant - - especially a young and callow defendant - - may falsely confess a crime in order to garner attention, to impress others with his daring, to help a guilty friend, or out of fear of police interrogators.) Similarly, lay jurors know - - without the aid of expert testimony - - that young people, or people with psychological or mental limitations, may be particularly vulnerable to manipulation by the police in an interrogation setting.

It must, of course, be conceded that jurors may not be familiar with certain rare, but genuine, psychological disorders - - such as Munchausen's Disease, sometimes called "psuedologica fantastica" - - that may compel a person to falsely confess to having committed a crime. There can be little doubt that expert testimony should be admitted in order to familiarize jurors with such strange and little-known disorders where there is reason to believe that a defendant may suffer from such an affliction. See U.S. v. Shay, 57 F.3d 126 (1st Cir. 1995).

But in the ordinary case - - where no such rare mental disorder is involved - - there is little reason to believe that expert testimony about false confessions is necessary, or even useful, in order for a jury to assess the credibility of a confession. See Bixler v. State 582 N.W.2d 552 (Minn. 1998) (precluding expert testimony because jury could itself assess confessing defendant's purported propensity to please authority figures; and distinguishing earlier Minnesota case where expert properly testified concerning confessing defendant's "schizoid personality disorder"). "The jury is capable of understanding the reasons why a statement may be unreliable; therefore, the introduction of expert testimony would be a superfluous attempt to put the gloss of expertise, like a bit of frosting, upon inferences which lay persons were equally capable of drawing from the evidence.'" State v. Davis, 32 S.W.3d 603, 609 (Mo. 2000) (citations omitted).

To the contrary, expert testimony about false confessions may well do more to confuse, than aid, jurors. That is so because the aura of scientific authority that surrounds a declared expert witness may lead the jury to lose focus on the actual facts of a particular case. See U.S. v. Adams, 271 F.3d 1236, 1245 (10th Cir. 2001) ("Yet another rationale for exclusion is that the testimony of an impressively qualified expert on the credibility of other witnesses is prejudicial, unduly influences the jury, and should be excluded under Rule 403.") [*13]

Moreover, it is easy to foresee serious difficulties ahead if New York State courts were to permit false confession expert testimony like that proffered by the defense here. For one thing, expert witnesses have a remarkable knack for proliferation. If it becomes common for courts to hear from defense experts (like Dr. Fulero) about false confessions, then a new crop of competing experts will probably appear shortly thereafter - - experts willing to testify in equally "scientific" fashion about the hallmarks of true confessions. See e.g. State v. Franks, 90 S.W.3d 771 (Tex. App. - Fort Worth, 2002). In all likelihood, the net result would be that criminal trials would become longer and more complex, but juries would not receive any meaningful assistance in pursuing what is ultimately a non-scientific endeavor - - determining whether or not a defendant has told the truth.

Defendant's trial counsel did excellent work. He cannot fairly be faulted for failing to offer the testimony of a false confession expert. Such a defense strategy would have been exceedingly rare in New York State at the time of defendant's trial. Under New York law, such evidence would likely have been barred by the trial judge at defendant's 1998 trial, and such evidence would likely be similarly barred by a New York State court today. New York law is wise to bar false confession "expert" evidence; such evidence impedes rather than advances the jury's ability to find the truth. There is no reason to doubt that defendant received effective assistance of counsel and a fair trial. Defendant's motion to set aside his conviction for murder is therefore denied.

This Opinion constitutes the Decision and Order of the Court.

Enter,

Dated: Bronx, New York____________________

August 24, 2007Ethan Greenberg, A.J.S.C.