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Friday, January 26, 2024


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Decision on Expert Testimony on Confessions Stands

Majority of Ninth Circuit Judges Reject Call for En Banc Rehearing; Nine Appointees of Republican Presidents Dissent, Deriding 2-1 Opinion Reversing a Judgment Because Psychologist Was Barred From Taking Stand


By a MetNews Staff Writer


Nine Ninth U.S. Circuit Court of Appeals appointees of Republican presidents yesterday dissented from an order denying an en banc rehearing in a case in which a three-judge panel, in a 2-1 decision, ordered a new trial of a civil rights action alleging that sheriff’s deputies coerced a confession from the plaintiff, thus forcing him to endure a criminal trial on a charge of a sexual assault, ending with his acquittal.

Three appointees of Democratic presidents joined in an opinion declaring to be unnecessary an en banc review of the conclusion that District Court Judge George Wu of the Central District of California erred in excluding expert testimony on coerced confessions at the trial of Terence B. Tekoh’s lawsuit against the County of Los Angeles and others.

The dissenters are Judges Consuelo M. Callahan and Sandra S. Ikuta, appointees of President George W. Bush and Daniel P. Collins, Ryan D. Nelson, Bridget Shelton Bade, Kenneth Kiyul Lee, Daniel Aaron Bress, Patrick J. Bumatay and Lawrence VanDyke, who were placed on the court by President Donald Trump. Supporting the decision to deny an en banc rehearing were Chief Judge Mary H. Murguia, appointed by President Barack Obama and Judges Wardlaw Kim Wardlaw and Ronald M. Gould, awarded their judgeships by President Bill Clinton.

Murguia and Wardlaw comprised the majority of the three-judge panel that, on Aug. 4, 2023, reversed the judgment in favor of the county. Judge Eric D. Miller, a Trump appointee, dissented.

Supreme Court Reversal

The panel acted upon a remand from the U.S. Court which reversed an earlier decision in Tekoh’s favor. The high court declared that a Miranda violation, standing alone, is insufficient to support a civil rights action under 42 U.S.C. §1983.

With the Miranda issue out of the way, Murguia and Wardlaw held that Wu prejudicially erred in barring expert testimony by Iris Blandón-Gitlin, who holds a PhD in applied cognitive science.

Wardlaw wrote that the 2023 panel decision “was correct,” while the dissenters in an opinion by Collins, maintained:

“Having just been reversed by the Supreme Court on other grounds, the panel majority on remand has issued yet another plainly erroneous published decision—one that defies settled precedent, creates a circuit split, and will have a substantial disruptive effect on the administration of justice in this circuit We should have reheard this case en banc.

“According to the panel majority’s opinion, in conducting a civil trial concerning a § 1983 claim alleging that a police officer coerced the plaintiffs confession, the district court was required to admit expert testimony concerning the potential coercive effect of commonly used interrogation techniques. Expert testimony is needed, the majority concluded, so that the jury can understand the coercive effect of ‘minimization tactics’ (i.e.. blame-reducing excuses for the suspected crime that are suggested by the interrogator) and ‘false evidence ploy[s]’ (i.e., bluffing by the interrogator as to what evidence of guilt the police have), as well as ‘why just asking questions can be coercive.’ ”

Three Alleged Flaws

Collins continued:

“In holding that the mere use of such common techniques triggers a need to admit such expert testimony, the panel majority’s decision (1) contravenes our caselaw concerning the deference afforded to district judges on evidentiary questions as well as our caselaw supporting the exclusion of expert testimony offered to bolster credibility: (2) could be read as effectively creating a per se rule requiring the admission of such testimony in all cases alleging a coerced confession: and (3) creates a split of authority. Although the concurrence in the denial of rehearing attempts to downplay the significance of the panel majority’s published opinion—which the panel majority notably declines to amend—that concurrence only serves to underscore how problematic that opinion is in the first place.”

Tekoh had been a nursing assistant at a hospital. A female patient accused him of sexually assaulting her.

He was acquitted at his second trial, then brought his civil action, asserting that Sgt. Carlos Vega of the Los Angeles County Sheriff’s Department had bullied him into confessing.

Wu’s Reasoning

 Collins quoted Wu as saying, in ruling that Blandón-Gitlin’s testimony was inadmissible:

“This Court found that her opinion was unnecessary and problematic because: (l)if the jury believed Mr. Tekoh’s version of the events, his confession was clearly coerced and highly unreliable and her opinion added nothing of substance. (2) Plaintiff appeared to be trying to use Dr. Blandon-Gitlin to simply vouch for his version of the events, but she was not a percipient witness, and (3) her report included studies and contentions which were irrelevant to the case.”

Collins remarked:

“Under well-settled law, the district court did not err in excluding the proffered testimony on these three grounds.”

Wu is also quoted as saying::

“Plaintiff here testified that Defendant Vega browbeat him both physically and verbally, threatened to deport not only him but also his family, used racial epithets, denied him access to counsel, lied to him regarding the evidence against him, and put a piece of paper in front of him and forced him to write a confession which Vega dictated. A reasonable juror would not need the assistance of a person with specialized knowledge to understand that those conditions, if tine, would give rise to a false and coerced confession.”

Collins wrote:

“The panel majority’s opinion nonetheless held that expert testimony was necessary to ‘help the jury better understand coerced confessions, including why just asking questions can be coercive, issues that are beyond a layperson’s understanding and not necessarily obvious, even in these circumstances.’…(emphasis added). I am aware of no precedent that endorses the majority’s extraordinary view that a district court abuses its discretion by excluding, in a coerced confession case, expert testimony about ‘why just asking questions can be coercive.’ ”

‘Extreme Outlier’

He went on to say:

“The extent to which the panel majority’s decision here is an extreme outlier is further confirmed by the substantial body of additional precedent from other federal and state courts across the country that have repeatedly upheld the exclusion of comparable expert testimony under similarly worded rules of evidence….

“In addition, there does not appear to be any prior civil case in which an appellate court has held that such expert testimony must be admitted. On that score, the panel majority’s decision apparently stands alone.”

In her opinion concurring in the denial of an en banc rehearing, Wardlaw said:

“If the jury had found Tekoh not credible, it would have easily discounted Dr. Blandon-Gitlin’s testimony as irrelevant. But—and this is the crucial point—if the jury did find Tekoh credible, it could still have found that Tekoh did not satisfy the burden of proving the elements of his coercion claim. Dr. Blandon-Gitlin’s testimony was helpful because it went to the facts at the heart of Tekoh’s legal claim, not to his credibility.”

The case is Tekoh v. County of Los Angeles, 18-56414.


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