Cornell University Law School Social Science and Law

False Confessions: Dr. Richard Leo, Harris v. City of Chicago

Compiled by Haley Adams, Rafa Agundez, Katarina Delgado, and Max Rosenthal

Case Background
 
           Nicole Harris spent nearly eight years in prison for the murder of her son before being declared innocent.  Following her release, Harris sued the Chicago police officers involved in the investigation, alleging that her conviction was based in large part on a false and fabricated confession elicited during approximately 30 hours of interrogation.  In particular she argued the following claims: (1) a Fourteenth Amendment due process fabricated evidence claim; (2) a Fourteenth Amendment due process coerced confession claim; (3) a constitutional failure to intervene claim; (4) a constitutional conspiracy claim; (5) a state law malicious prosecution claim; (6) a state law intentional infliction of emotional distress claim; and (7) a state law conspiracy claim.  The facts leading to this lawsuit are complex and often lack consensus.
 
            On May 14, 2005, Harris’s four-year-old son, Jaquari, was found unconscious in his bedroom by her partner, Sta-Von Dancy, and her five-year-old son, Diante.  Shortly thereafter, the hospital declared Jaquari dead and police officers from the Chicago Police Department approached Harris for questioning.  Unfortunately, the police officers failed to electronically record the interrogation of Harris, and the parties offer vastly different accounts of the interrogation on May 14th. Of note, the interrogation occurred two months before an Illinois law requiring police officers to record the entire custodial interrogation of murder suspects went into effect.
 
            According to Harris, the officers repeatedly berated and mocked her.  The officers refused to comply with her request for an attorney and repeatedly demanded that she stop lying to them when she asserted her innocence.  The police officers also told her, falsely, that Sta-von Dancy thought she could have murdered Jaquari.  Likewise, the police officers informed her that if she cooperated and confessed she would be able to see Diante again.  At some point, the police officers informed Harris that she needed to take a polygraph but that they could not schedule it until the following day.  According to Harris, they left her in the interrogation room overnight with no bed. 
 
            According to the police officers, the circumstances of the interrogation occurred differently. The police officers deny yelling at Harris, berating her, refusing any requests for counsel, and threatening her.  Instead, they assert that Harris immediately confessed to the murder.
 
            Despite these different accounts, it is certain that on May 14, 2005,  Diante attested in an interview that he saw Jaquari accidentally choke himself with an elastic band and that his parents were not present.  It is also certain that on May 15, 2005, Harris gave a videotaped statement in which she confessed to killing her son Jaquari.
 
           On October 26, 2005, a jury convicted Harris of murder and the Circuit Court of Cook County sentenced her to thirty years in prison.  Of note, the Circuit Court of Cook County excluded Diante’s testimony after determining he was not a competent witness.  After exhausting her state court remedies, Harris brought a habeas petition in the United States District Court for the Northern District of Illinois which was denied on December 14, 2011.  On October 18, 2012, the United States Court of Appeals for the Seventh Circuit reversed the district court’s denial with instructions to grant the writ and ordering the state to retry or release Harris within 120 days.  In particular, the Seventh Circuit concluded that the state court’s disqualification of Diante as a witness violated Harris' Sixth Amendment right to present a complete defense.  The state chose not to retry the case and on June 17, 2013, the Cook County’s State Attorney dismissed all charges against Harris. On January 25, 2014, the Circuit Court of Cook County granted Harris a Certificate of Innocence.

           After being declared innocent, Harris brought the lawsuit which is the subject of this discussion and is expanded upon below.  On June 05, 2017, the United States District Court for the Northern District of Illinois held a Daubert hearing to consider the admissibility of Harris’s expert testimony.  After a three-week jury trial, a jury rendered a verdict in favor of the Chicago police officers.  On May 05, 2018, the United States District Court for the Northern District of Illinois denied Harris’s Rule 59(a) motion for a new trial.

 

The Expert: Dr. Richard A. Leo
 
           To support the argument that her conviction was based on a false and fabricated confession elicited by the police officers, Nicole Harris called upon Dr. Richard A. Leo as an expert witness.  Dr. Leo is the Hamill Family Professor of Law and Psychology at the University of San Francisco and is considered one of the leading experts in the topics of police interrogation, psychological coercion, and false confessions.
 
           Pursuant to Federal Rules of Evidence Rule 702, an expert witness may testify if “the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.”  As elaborated upon below, Dr. Leo’s extensive education, research, publications, and career achievements on the topic of false confessions plainly qualifies him under Rule 702.
 
           First, Dr. Leo’s educational background is thorough and multi-disciplined.  For one, Dr. Leo holds a Ph.D. from the University of California Berkeley specializing in criminology and social psychology.  Furthermore, Dr. Leo holds a J.D. from UC Berkeley School of Law.  These degrees demonstrate not only a mastery of social psychology, but also an appreciation for how the principles of social psychology can be applied to a legal framework.
 
           Second, Dr. Leo’s research and publications on the topic of false confessions are extensive.  Dr. Leo has analyzed thousands of cases involving interrogations and confessions.  Of particular note, Dr. Leo spent nine months from 1992 to 1993 doing field research inside the Oakland Police Department, which included observing one-hundred twenty-two felony interrogations.  Furthermore, Dr. Leo has written several peer-reviewed articles on the topic of false confessions in various scientific and legal journals.  Adding to this impressive achievement, Dr. Leo has written over seven books on the topic of false confessions, including Police Interrogation and American Justice (Harvard University Press, 2008) and Confessions of Guilt: From Torture to Miranda and Beyond (Oxford University Press, 2012).  Unsurprisingly, Dr. Leo’s many peer-reviewed literary contributions to the field of false confessions demonstrate that he is knowledgeable about the relevant subject matter.
 
           Third, Dr. Leo’s career achievements demonstrate that his expertise has become authoritative.  For instance, his scholarship is frequently cited by appellate courts, including the Supreme Court of the United States on four occasions.  At the time, Dr. Leo had been qualified as an expert witness three-hundred and eleven times in state, federal, and military courts. Furthermore, Dr. Leo taught interrogation training courses to multiple police departments including the Miami Beach Police Department.  Thus, Dr. Leo’s career achievements demonstrate his authority as well as his ability to make information accessible to wider audiences.
 
           It is thus abundantly clear that Dr. Leo is qualified to speak about the topic of false confessions.  Given his extensive qualifications, there were no challenges to the neutrality of Dr. Leo in the present case.  Likewise, there is nothing to suggest that his neutrality should have been challenged.  One may argue that his considerable compensation rate of $375 per hour may indicate a potential incentive to be overly favorable of Nicole Harris.  However, his compensation was not contingent on the outcome of the litigation nor on the opinions he expressed.

 

The social science research

Dr. Leo relies on a body of empirical field research dating to 1908, extensive publications, and recognized scientific principles, methods, and findings. The research is generally accepted in the scientific community and, therefore, courts have repeatedly held that this expert testimony is admissible in criminal and civil rights litigation.¹ According to social scientists, approximately four-hundred and fifty to five-hundred proven false confessions have been documented in the U.S. since the early 1970s.² However, Dr. Leo suggests that this is likely an underestimate of the actual false confessions that police have elicited in recent decades because only a small number of cases of disputed confessions will be proven beyond a doubt to be false through independent case evidence. Dr. Leo’s research was conducted using generally accepted methods such as analyzing cases involving interrogations and confessions and identifying personal and situational factors associated with, and believed to cause, false confessions.

Overview

The first part of Dr. Leo’s expert report provides an overview of relevant research on the social psychology of police interrogation practices and techniques, police-induced false confessions (i.e., situational risk factors), risk factors for false confession (i.e., personal risk factors), psychological coercion, police interrogation contamination, and indicia of unreliability. In explaining the psychology of police interrogation, he divides the process into two steps: (1) the interrogator causes the suspect to view his situation as hopeless; (2) the interrogator persuades the suspect that the only way to improve their situation is to confess. Researchers have classified the types of inducements interrogators use in the second step to get the suspect to confess into three categories: low-end inducements, systemic inducements, and high-end inducements. According to Dr. Leo, social science research demonstrates that some systemic inducements and all high-end inducements are coercive, and that high-end inducements increase the likelihood of false confessions and statements. An example of a high-end inducement is explicitly telling the suspect that they will receive a higher degree of the alleged offense (i.e. first degree murder) if she does not confess to the interrogator’s version of events and a lesser degree of the offense (i.e. involuntary manslaughter) if she does. Dr. Leo states that these coercive interrogation techniques or a suspect’s pre-existing vulnerabilities to coercion or both can result in police-induced false confessions. Individuals who are vulnerable to the pressures of interrogation include those who are mentally ill, juveniles, individuals with a low IQ or cognitive functioning. In addition, individuals with personality traits making them more naïve, trusting of authority, highly suggestible, and/or highly compliant are more at risk of false confessions during interrogation.

Methodology

Social science researchers use post-narrative admission analysis and the fit standard to evaluate the validity of a confession statement. This method involves analyzing the fit between details of the crime that the suspect provides to the police after confessing and the underlying crime facts and derivative crime evidence to test the suspect’s actual knowledge of the crime. It provides an objective basis to test the reliability of the suspect’s statements of guilt. If, for example, the suspect cannot provide police with actual details of the crime and lead them to new or derivative crime evidence, then they are likely not the true perpetrator of the crime. This method is even more reliable because police often conceal particular details of the crime from the press so that they can be used to demonstrate guilty knowledge in post-admission narratives.

In the second part of Dr. Leo’s expert report, he applies the principles in part one to the investigation, interrogations and confession statement of Nicole Harris and provides his professional opinion. After reviewing the case materials and analyzing based on the social science, he provides a conclusion with eleven points. In general, he concludes that Harris’ account of the multiple interrogations was consistent with the types of interrogation techniques that are shown by social science research to increase the risk of false confessions. He also concludes that, according to Harris’ account, the interrogations involved instances of police contamination and scripting, which increased the risk that her confession statement would fit the actual underlying crime facts and appear self-corroborating.

Daubert

The court applied Federal Rule of Evidence 702 and the Daubert test to determine whether Dr. Leo’s expert testimony was relevant and reliable. Although they did not apply the Frye standard, his testimony likely would have passed because the Frye test only requires general acceptance by experts in the particular field. The court found that Dr. Leo’s opinions were based on a well-established empirical field of research, his research had been cited by the United States Supreme Court, and numerous federal courts have relied upon similar testimonies because the study of police coercion in interrogations is a sufficiently developed body of knowledge.

The Daubert test provides four criteria for the court to consider, among other things, in determining reliability of an expert’s testimony: 1) whether the proffered theory can be and has been tested; (2) whether the theory has been subjected to peer review and publication; (3) whether the theory has been evaluated in light of potential rates of error; and (4) whether the theory has been accepted in the relevant scientific community.³ However, these specific factors do not necessarily or exclusively apply to all experts or in every case. Social science research that is inherently qualitative does not conform to some of the factors, such as falsifiability and potential rate of error, because it does not involve experimentation. Although the Defendants argued that Dr. Leo relied on a low sample size and did not randomly select his case studies, the court held that potential methodological limitations go to the weight of the testimony rather than undermine the reliability, and Defendants have the opportunity to address limitations through cross-examination. On the other hand, Dr. Leo’s testimony satisfied the peer review and publication and general acceptance factors under Daubert. Since Daubert is a flexible standard, the absence of some of the factors does not preclude the admissibility of expert testimony. In the actual case, Dr. Leo’s testimony passed the Daubert test and he was allowed to testify. Opinion five of Dr. Leo’s testimony was barred because the court held that he did not have the requisite law enforcement or forensic evidence experience to conclude that Jaquari’s death was accidental. However, the rest of his testimony was admitted against the Defendant’s Daubert motion. Rule 702 states that the expert testimony must assist the trier of fact to understand evidence or determine a fact in issue in order to be relevant. Here, the court concluded that Dr. Leo’s testimony is relevant because it will be helpful to explain why false confessions happen and how to recognize them—allowing the jury to apply this framework to the facts of the case.

Relevance to the legal issue in the case

           Dr. Leo’s testimony was certainly relevant to the central legal questions of the case. This case looks to find whether or not Ms. Harris’ constitutional rights were violated. Involved in that search is the question of whether her confession was a false one. In this regard, the social science presented by Dr. Leo is very important in helping the jury decide if a false confession was involved in this case.

Most people would not likely think that someone would confess to a heinous act, like murdering their own child, if they had not committed the act. Dr. Leo’s testimony shows that false confessions do happen, and he also provides background into what may prompt them or increase their risk of occurrence. This important knowledge then helps the jury not only to recognize that false confessions are possible but also helps them to assess whether these factors were present in this case.

           Since the defendant officers contested the relevance of Dr. Leo’s testimony, the court discussed it. In its discussion, the court used the standard that an expert’s testimony qualifies as relevant under rule 702 if it assists the jury in determining any facts at issue. The defendants took issue with one piece of Dr. Leo’s testimony in particular, that there was no evidence at the time of interrogation that Ms. Harris had murdered her child, yet the officers presumed guilt. This then led to a guilt presumptive bias which increases the risk of false confessions. The court decided that Dr. Leo would not be able to testify that there was no evidence at the time of interrogation that Ms. Harris had murdered her child. In making this decision, the court reasoned that Dr. Leo was not qualified to testify in this regard as he is not a forensic scientist. The court found that this opinion would be simply subjective and not helpful to the fact finder.

           However, beyond this one piece of Dr. Leo’s testimony, the court found that the rest of his testimony would be helpful in explaining why false confessions happen and how to recognize them. This would leave the jury with a framework with which to apply the facts of the case.

           Therefore, Dr. Leo’s testimony was both relevant and important for the trier of fact to understand in order to make an informed decision in this case.

Court’s treatment of the expert and expert evidence

            As mentioned earlier, the court did accept most of Dr. Leo’s expert testimony, and I believe this was the correct decision. Dr. Leo is certainly an expert in coerced confessions, and this type of case is exactly what his research is meant to support. While the court did end up accepting most of Dr. Leo’s expert testimony, they did reject a few statements from his testimony. On Harris’ Rule 59(a) motion for a new trial, Harris challenged the exclusion of these statements. In particular, Harris had a problem with the Court excluding this part of Dr. Leo’s testimony, “Before interrogating her, the investigators misclassified Nicole Harris as guilty when, in fact, they had no evidence whatsoever to indicate that Jaquari Dancy’s death was anything other than accidental…”. The court also excluded a similar statement from Dr. Leo, which stated how none of the evidence at the death scene pointed to Jaquari being killed intentionally. The Court initially excluded these parts of Dr. Leo’s testimony because it did not think Dr. Leo had the requisite experience to interpret crime scenes and examine evidence. I agree with the court’s initial decision to reject this evidence, as I don’t think Dr. Leo was qualified to speak on the specifics of the crime scene. He has sat in on multiple interrogations and confessions, and has extensively studied police-induced false confessions, but he has no background examining crime scene evidence. Without this background, the Court is able to evaluate the evidence and is capable of drawing its own conclusions without the expert’s testimony, and so I agree that this portion was rightfully excluded.

           During the 59(a) motion, Harris argued that this excluded testimony was very important in explaining the Defendant Officer’s improper interrogation, as the testimony was connected to the officer’s jump to judgement that Harris was guilty. A jump to judgement is when police create a theory early on in a case without doing much investigating, and then conduct their investigation around the theory, trying to prove this initial belief. This guilt-presumptive bias is related to the behavioral sciences method of confirmation bias. With this context, one could see how Dr. Leo’s excluded statements could be important in proving that the Defendant Officer’s fell into this jump to judgement, as they jumped to blame Harris at the start and built their case around this theory, even though there was no evidence suggesting Harris’ guilt. Nevertheless, the court stated that any err the Court may have made in excluding this portion was harmless, as it didn’t affect the substantial rights of Harris, and denied Harris’ Rule 59(a) motion in this respect. Although the court didn’t provide much reasoning for why any err would be harmless, I agree that even if some of Dr. Leo’s testimony was improperly excluded, it was probably harmless. I think non-expert testimony could show that there wasn’t much initial evidence pointing to a belief that Harris was involved in Jaquari’s death, and under this notion the rest of Dr. Leo’s testimony still holds true.

           It’s difficult to say what the importance of Dr. Leo’s testimony was on this decision. Nicole Harris lost the original jury trial, and her Rule 59(a) motion for a new trial was ultimately not granted. The decision to not hold a new trial discussed Dr. Leo’s testimony extensively, as Harris was motioning for a new trial in part because she thought some of Dr. Leo’s testimony was incorrectly excluded. The motion, however, ended up not being granted, and so even though Dr. Leo was extensively discussed, it was mostly a repetition of what was found in the Daubert hearing. Dr. Leo’s research was very relevant to this type of case, so even though Harris was not successful, Dr. Leo’s testimony certainly played a role in building Harris’ argument.

 

Footnote Sources:

¹ See Caine v. Burge, 11 C 8996, 2013 WL 1966381, at *3 (N.D. Ill. May 10, 2013); Scott v. City of Chicago, 07 C 3684,2010 WL 3034254, at *5 (N.D. Ill. Aug. 3, 2010); United States v. Hall, 974 F. Supp. 1198, 1206 (C.D. Ill. 1997) aff'd,165 F.3d 1095 (7th Cir. 1999).

² Steven Drizin and Richard A. Leo (2004). “The Problem of False Confessions in the Post-DNA World. North Carolina Law Review, 82, 891-1007.

³ See Daubert v. Merrell Dow Pharm., 509 U.S. 579, 593–96.