by Sam Rutherford

The Supreme Court of Michigan held that it is fundamentally unfair to deny an indigent defendant’s request for funds to retain an expert on false or coerced confessions where the veracity of the defendant’s confession is a central issue at trial.

Background

In 2016, Damon E. Warner was charged with first- and second-degree criminal sexual conduct for allegedly assaulting his minor stepdaughter, “PG.” PG initially told her mother, father, and stepmother that Warner had assaulted her in 2013 when she was 13 years old by forcing her onto a bed, pulling down her pants, and vaginally raping her. PG later testified, however, that she felt no sexual penetration. PG also claimed that a few months later Warner put his hands down her pants and into her vagina. The family did not contact law enforcement, but a school counselor did when PG repeated the allegations.

During the investigation, Warner underwent three police interrogations. The first interrogation was conducted by Detective James Maltby of the Eaton County Sheriff’s Office. He stated that he used several techniques during interrogations of child sexual abuse suspects, including withholding information and establishing “a rapport building, buddy system.” His techniques also included “try[ing] to sexualize the victim” so that a suspect would think Maltby was “looking at it from his point of view.” Maltby used these techniques on Warner, who denied any wrongdoing but agreed to a second interview. The first interrogation lasted about an hour.

The second interrogation was conducted by Michigan State Police Detective Sergeant Derrick Jordan with Maltby watching on a monitor in a separate room. Jordan read Warner his Miranda rights and also employed techniques he thought would gain Warner’s trust. For example, Jordan used statements like, “I knew the victim liked him, I knew the victim was promiscuous, I knew the victim was sexually active,” despite knowing nothing about the alleged victim. This interrogation lasted for a couple of hours. Warner admitted that he and PG were “wrestling around” and that she asked him whether he “want[ed] to feel her p****” and then “took his hand and put it down in her pajama pants and told him that she was wet, she was horny and on fire.”

Jordan then wrote out Warner’s confession for him, which he said was another purposeful interrogation technique. Jordan read the statement to Warner and had him write “yes” on the document indicating that it was correct. Jordan later testified that the second interrogation was not recorded because the Michigan State Police “didn’t have the technology at that time.” However, Maltby recorded the monitor he was watching in the observation room with his cellphone. The recording was 10 minutes long and was introduced into evidence at trial.

Maltby conducted a third interview of Warner, employing techniques similar to ones used during the first two. He lied to Warner, saying that police had DNA evidence linking him to the assault on PG and suggested that Warner had minimized his contact with her during his second interview. Maltby said that the DNA evidence indicated that Warner left out certain aspects of the “wrestling” incident by omitting that he had pulled down PG’s pants and penetrated her. Warner insisted these statements were false.

The case proceeded to jury trial. Warner testified that the statement made during the second interrogation was false. Although Warner admitted that he would wrestle with PG when she was younger, he stated that he only did it in the presence of his wife. He claimed that he made up the wrestling narrative in his statement because he was “tired of being badgered about the same questions over and over, and they wouldn’t take no for an answer,” adding “they wasn’t gonna quit until they got somethin’ to help them.” PG also confirmed that they would sometimes “play wrestle” but never outside of the presence of her mother.

A jury found Warner guilty of second-degree criminal sexual conduct but could not reach a verdict on the first-degree charge. The first-degree charge was later dismissed without prejudice. He was sentenced to 10 to 30 years in prison.

Warner timely appealed the conviction to the Michigan Court of Appeals, which reversed in an unpublished opinion because the jury did not receive a proper unanimity instruction. The court vacated Warner’s conviction for second-degree criminal sexual conduct and remanded the case for a new trial. Over Warner’s objection, the trial court reinstated the first-degree criminal sexual conduct charge the jury failed to reach a verdict on during the first trial.

Warner also requested funds to retain two experts on false confessions because the veracity of his confession would be a central issue at trial. Warner’s motion identified Dr. Richard Leo and Dr. Brian Cutler as his proposed experts. Defense counsel said the experts were necessary for him to explain to the jury “why somebody could be coerced into making a confession when they were worn down.” Leo would testify about police interrogation techniques and false confessions, while Cutler would perform psychological testing on Warner and testify about “the psychology of whether the attributes of a false confession are present.”

The trial court denied the motion. It ruled the proffered expert testimony was inadmissible under People v Kowalski, 821 N.W.2d 14 (Mich. 2012), and also expressed concerns about the county having to pay for “potentially expensive” expert witnesses when Warner had two retained attorneys representing him. Defense counsel responded that they were representing Warner for free, that the court should conduct an indigency hearing to address its concerns about Warner’s possible assets, and that the defense was entitled to a Daubert hearing before the court ruled on the admissibility of the proposed expert testimony. Although the court initially agreed, it never conducted additional hearings and instead affirmed its earlier ruling denying funds “pursuant to Kowalski.”

Despite the court’s admissibility ruling, the prosecution was permitted to call Dr. Thomas Cottrell as “an expert in the dynamics of child sexual abuse and perpetrator tactics or sex offender dynamics.” The prosecution also presented evidence of Warner’s statements to police, including Maltby’s cellphone recording of Warner’s purported confession. The prosecution focused on the video evidence during its closing arguments, asking the jury to recall how Cottrell said sex offenders act and then to “watch the defendant’s body language as he’s admitting to what he did.”

The second jury returned a guilty verdict against Warner, finding him guilty of first-degree criminal sexual conduct and not guilty of second-degree criminal conduct. Warner was sentenced to 20 to 40 years in prison.

Warner timely appealed, arguing that the trial court erred in reinstating the first-degree criminal sexual conduct charged dismissed after the first trial and by denying his motion for funds to retain the false confession experts. The appellate court affirmed. Although it agreed that the trial court misapplied Kowalski by holding that the decision created a categorical bar against false confession experts when in fact it addresses the admissibility of such evidence under the Daubert standard, it nonetheless found that any error in Warner’s case was harmless. The court also held that it was not error to reinstate the previously dismissed charge.

The Michigan Supreme Court granted leave to appeal only the expert witness issue and reversed.

Analysis

Whether a trial court has violated an indigent defendant’s right to due process by denying funds for an expert witness is reviewed de novo. People v. Kennedy, 917 N.W.2d 355 (Mich. 2018). Michigan courts have adopted the test set forth in Ake v. Oklahoma, 470 U.S. 68 (1985), for reviewing such claims. Kennedy. Under this test, “a defendant must show the trial court that there exists a reasonable probability both that an expert would be of assistance to the defense and that denial of expert assistance would result in a fundamentally unfair trial.” Kennedy.

Although the defendant need not “provide the court with a detailed analysis of the assistance an appointed expert might provide,” the “bare assertion that an expert would be beneficial cannot, without more, entitle him or her to an expert.” Id. But when an expert will be useful in relation to “a significant factor at trial, the State must … assure the defendant access to a competent [expert] who will conduct an appropriate examination and assist in the evaluation, preparation, and presentation of the defense.” Ake.

The Michigan Supreme Court first noted that Warner correctly argued and the Court of Appeals correctly held that the trial court misinterpreted Kowalski. Although the Kowalski Court upheld the exclusion of false confession expert testimony as unreliable under the Daubert standard and Mich. Evid. Rule 702 as unreliable under the specific facts of that case, it did not create “a categorical ban on all false-confession testimony.” Instead, the Court explained that the relevant inquiry is whether Warner “demonstrated a reasonable probability that his proposed expert would help his defense and whether the absence of that expert would result in a fundamentally unfair trial.” Citing Kennedy.

Meeting the first criterion of the test did not require Warner to show that he was “unable to present his defense without expert assistance,” according to the Court. In fact, an expert might be required even if he or she never testifies because such assistance could help defense counsel “understand the evidence” so that counsel could “confront the witnesses and evidence called in the prosecution’s case in chief,” reasoned the Court. Kennedy. Rather, defendants have a due process right to court-appointed expert assistance when the issue the expert is knowledgeable in will be a “significant factor at trial.” Ake.

The Court determined that Warner’s proposed expert testimony easily met this test. His confession was crucial to the prosecution’s case because it was the only evidence corroborating PG’s allegations. His experts would have testified not only about coercive interrogation tactics in general but also about characteristics specific to Warner that made him susceptible to giving a false confession. Furthermore, the Court noted that the experts could have assisted defense counsel prepare for and conduct cross-examination of the prosecution’s witnesses.

Thus, the Court ruled that Warner’s proffer in support of his request for funding was based on more than a “bare assertion that an expert would be beneficial,” and the trial court’s denial of the request was erroneous because “there was a reasonable probability that defendant’s proposed expert could have assisted the jury in understanding whether the conditions for a false confession were present and, if so, how those conditions affected the interrogations.” Assuming without deciding that this type of due process violation is subject to harmless error review, the Court concluded that the People failed to establish harmless error beyond a reasonable doubt because the “evidence the prosecution presented at trial largely concerned defendant’s confession and … the trial court’s decision deprived defendant of the ability to call or consult with an expert who would provide guidance concerning false confessions.”

Nevertheless, this did not mean that Warner was necessarily guaranteed a new trial. The trial court denied Warner’s request for expert funding without determining whether he was indigent at the time of the request, the Court stated. But due process only requires the appointment of experts for indigent defendants; those with sufficient financial resources must retain experts themselves. See Kowalski. The Michigan Supreme Court therefore remanded the case to the trial court for it “to determine whether [Warner] was indigent when he filed his motion. If the court determines that [he] was indigent when the motion was filed, he is entitled to a new trial.”

Conclusion

Accordingly, the Court reversed the Court of Appeals judgment and remanded the case to the trial court for further proceedings consistent with its opinion. See: People v. Warner, 2024 Mich. LEXIS 1280 (2024). 

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