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On May 1, 2008, Richard and Brenda Kowalski were found shot to death in their Oceola Township home. On the day that the bodies were discovered, police questioned Jerome Kowalski, the brother of Richard Kowalski. Five days later, Kowalski came to the police station, at the request of police, for follow-up questioning. Officers interrogated Kowalski for two hours, and asked him to take a polygraph examination. Approximately one hour into the pre-test interview, Kowalski told the polygrapher that he dreamed that he shot his brother. At this point, police began to videotape the interrogation. The results of the polygraph were inconclusive, but after the test, two officers interrogated Kowalski for another hour and a half hours. Kowalski was arrested and transported to the jail, where he was detained. The next day, officers interrogated Kowalski for another five and a half hours. During that interrogation, Kowalski made numerous incriminating statements and ultimately confessed to the murders.
After he was charged with the murders, Kowalski sought to suppress the incriminating statements he had made to the police. He filed a notice of intent to introduce the expert testimony of Dr. Richard Leo and Dr. Jeffrey Wendt. According to the notice, Leo would “give expert testimony concerning false confessions; that is, that they occur and some of the reasons that they are known to occur, that false confessions are associated with certain police interrogation techniques, and that some of those interrogation techniques were used in this case.” Wendt, a forensic psychologist, was to testify that he administered several psychological evaluations to Kowalski and that he concluded that the circumstances surrounding Kowalski’s communication with law enforcement “resulted in conditions that increased his likelihood of false confession.” However, Wendt did not intend to offer testimony on the question of whether Kowalski made a false confession. Instead, his testimony was to address the “psychological and situational factors” bearing on the reliability of Kowalski’s statements to the police.
The prosecutor moved to suppress the proffered expert testimony, arguing that it was inadmissible under Michigan Rule of Evidence 702, which governs the admission of expert testimony, and Daubert v Merrell Dow Pharmaceuticals, Inc, 509 US 579 (1993). Following a hearing at which both experts testified, the trial court ruled that the experts’ proposed testimony was not admissible under MRE 702. The court held that Leo’s methodology was unreliable and highly questionable; his testimony would not assist the jury and was not relevant, the court said, because Leo admitted that the same interrogation techniques that produce false confessions also produce true confessions. The court held that jurors could determine on their own whether Kowalski’s confession lacked credibility. Moreover, the police witnesses could be cross-examined on the interrogation techniques and methods that they used, and the jury could consider this information in weighing the reliability of Kowalski’s confession, the court stated. The court also held that Wendt’s proposed testimony was not relevant because it could not be linked to proof of a false confession.
Kowalski appealed the trial court’s ruling. But in a split unpublished opinion, the Court of Appeals affirmed the trial court. The Court of Appeals majority noted that, although both experts testified that they would not opine regarding whether Kowalski made a false confession, that conclusion was implicit in their proposed testimonies. By implicitly giving an opinion as to whether Kowalski’s confession was genuine, the experts would interfere with the jury’s role in determining the confession’s credibility and weight, the majority said. Thus, the proposed testimony could unfairly prejudice the trial; neither expert’s proposed testimony had high probative value, the majority concluded.
The dissenting Court of Appeals judge agreed that Leo’s testimony concerning police interrogation techniques should be excluded. But the dissent would have reversed the trial court’s ruling excluding that part of Leo’s testimony that would educate the jury about false confessions. That false confessions do occur, even in the absence of mental illness or torture, is not within the jury’s general understanding, the dissenting judge said. Likewise, Wendt’s proposed testimony about Kowalski’s state of mind during the confession should also have been admitted; Wendt’s opinion that Kowalski’s personality made him more susceptible to influence than normal was based on reliable methodologies and was highly relevant to explain Kowalski’s mental state during the confession, the dissenting judge concluded. Kowalski appeals.