Harris v. City Of Chicago et al
MEMORANDUM Opinion and Order Signed by the Honorable Amy J. St. Eve on 6/5/2017:Mailed notice(kef, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
CITY OF CHICAGO, et al.,
Case No. 14 C 4391
MEMORANDUM OPINION AND ORDER
AMY J. ST. EVE, District Court Judge:
On June 12, 2014, Plaintiff Nicole Harris filed the present civil rights lawsuit in which
she alleges that a Circuit Court of Cook County jury convicted her of murdering her four-yearold son based in large part on a false and fabricated confession elicited during approximately 30
hours of intermittent interrogation by Chicago Police Officers. After discovery and motion
practice, the Executive Committee for the Northern District of Illinois reassigned Harris’ lawsuit
to this Court on February 17, 2017. The Court has set a firm trial date of October 30, 2017.
Before the Court is Defendant Officers’ motion to exclude the expert testimony of
Plaintiff Nicole Harris’ false confession/coercive interrogation expert Dr. Richard A. Leo
pursuant to the Federal Rules of Evidence and Daubert v. Merrell Dow Pharms., Inc., 509 U.S.
579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). Similarly, Plaintiff has moved to admit Dr.
Leo’s expert testimony also pursuant to the Federal Rules of Evidence and Daubert. On May 23,
2017, the Court held a Daubert hearing at which time Dr. Leo testified. For the following
reasons, the Court, in its discretion, grants in part and denies in part Defendants’ Daubert
motion, and grants in part and denies in part Plaintiff’s Daubert motion. The Court will consider
the parties’ arguments regarding Defendants’ false confession expert Professor Paul Cassell in a
Factual and Procedural Background1
During the relevant time period, Defendants John Day, Robert Cordaro, Demosthenes
Balodimas, James Kelly, Michael Landando, Anthony Noradin, and Randall Wo were Chicago
Police Department Officers assigned to the Detective Division of the Area 5 Violent Crimes
Unit. Defendant Robert Bartik was a Chicago Police Department Officer assigned to the
polygraph unit. Defendants Andrea Grogan and Lawrence O’Reilly were Assistant Cook County
State’s Attorneys (“Defendant ASAs”) during the relevant time period.
In May 2005, Harris lived with her two young sons, Diante and Jaquari, ages five and
four respectively, and the boys’ father, Sta-Von Dancy. On May 14, 2005, Harris and Dancy
were at a laundromat close to their home while their children were in the boys’ bedroom, which
contained a set of bunk beds. Shortly thereafter, Dancy returned home from the laundromat, at
which time he took a nap. When he awakened, Dancy went to check on the children and saw
that Jaquari was lying flat on his stomach on the floor, a bubble was coming out of his nose, and
his face was purple.
After calling 911, an ambulance took Jaquari to the hospital, and Harris, Dancy, and
Diante followed. Upon arrival, hospital staff informed Harris and Dancy that Jaquari was dead.
The Court bases the background facts on the parties’ filings in this matter, including
Plaintiff’s June 2014 Complaint, as well as the Seventh Circuit’s decision granting Plaintiff’s 28
U.S.C. 2254(d)(1) habeas petition. See Harris v. Thompson, 698 F.3d 609, 613 (7th Cir. 2012).
The Court recognizes that some of these facts are in dispute.
Less than an hour later, officers from the Chicago Police Department, including Defendants Wo
and Day, approached Harris and Dancy asking them if they would go to the police station so that
the detectives could ask them some questions. The officers then took Harris, Diante, and Dancy
to Area 5 Police Headquarters.
In her Complaint, Plaintiff alleges that after Defendants Balodimas and Landando went to
her apartment to gather evidence and returned to the police station, the officers claimed that she
spontaneously confessed to killing Jaquari with a phone cord – a confession that she later denied
and recanted. Thereafter, while interrogating her, Harris alleges that Defendants Noradin,
Landando, and Balodimas accused her of lying, aggressively interrogated her, and told her that
she was under arrest for murdering her son. According to Harris, she asked for an attorney on
numerous occasions, but Defendants refused to comply.
At approximately 11:00 p.m. on May 14, 2005, Defendant Kelly contacted the Special
Investigation Unit of the Children’s Advocacy Center to arrange for a “Victim Sensitive
Interview” of Diante, after which Alexander Levi questioned Diante. Defendant Wo observed
Diante’s interview. At the interview, Diante stated that he saw Jaquari wrap an elastic band from
the sheet on the top bunk bed around his neck, but that he could not help Jaquari. Diante also
stated that his parents were not present when Jaquari wrapped the elastic band around his neck.
After administering a polygraph test to Harris, police transported Harris back to Area 5
and Defendants Noradin, Balodimas, and Cordaro continued to interrogate her. In her
Complaint, Harris claims that Defendant Cordaro repeatedly told Harris a fabricated story and
then told Harris to give this fabricated story to the Assistant State’s Attorney. Harris also alleges
that Defendant ASA Lawrence O’Reilly met with her in the presence of Defendants Noradin and
Balomidas, at which time Harris recited this story. Area 5’s Defendant Grogan also met with
Harris and she repeated the confession. On May 15, 2005, shortly after 1:00 a.m., Harris gave a
videotaped statement in which she confessed to killing her son Jaquari.
Dr. John Scott Denton, a Cook County Medical Examiner, conducted Jaquari’s autopsy.
Defendants Noradin and Kelly observed the autopsy. Dr. Denton concluded that the elastic band
from the bed sheet was the cause of Jaquari’s death. Although Dr. Denton originally concluded
that Jaquari’s death was accidental, after a Chicago Police Detective told Dr. Denton that Harris
confessed to the murder, Dr. Denton revised his medical opinion concluding that Jaquari’s death
was a homicide.
The police charged Harris with murder and she later moved to suppress the alleged
coerced confession. According to Harris, Defendants Bartik and Noradin falsely testified at her
suppression hearing stating that she had spontaneously and voluntarily admitted to the murder
and that no one had physically or psychologically coerced her into giving a false and fabricated
statement. The Circuit Court of Cook County judge denied Harris’ motion to suppress. At her
jury trial, Defendants Bartik, Cordaro, Landando, Noradin, Grogan, and O’Reilly testified for the
State. The trial judge precluded Harris’ son Diante from testifying. On October 26, 2005, the
jury convicted Harris of murder and the Circuit Court later sentenced her to thirty years in
After exhausting her state court remedies, Harris brought a habeas petition
pursuant to 28 U.S.C. § 2254(d)(1) in the United States District Court for the Northern District
of Illinois. After the district court denied Harris’ petition for a writ of habeas corpus, the United
States Court of Appeals for the Seventh Circuit reversed the district court’s denial with
instructions to grant the writ on October 18, 2012. See Harris v. Thompson, 698 F.3d 609 (7th
Cir. 2012). 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 and
that counsel at Diante’s competency hearing provided ineffective assistance of counsel – also in
violation of the Sixth Amendment. On February 25, 2013, the State released Harris from prison
on bond. On June 17, 2013, the Cook County’s State’s Attorney dismissed all charges against
Harris, and on January 25, 2014, the Circuit Court of Cook County found that Harris was
innocent of the charges for which she was convicted and granted her a Certificate of Innocence
pursuant to 735 ILCS 5/1-702.
Dr. Leo’s Qualifications
Dr. Richard Leo is a Professor of Law and Psychology at the University of San
Francisco, and was formerly an Associate Professor of Psychology and an Associate Professor of
Criminology at the University of California, Irvine. In addition, Dr. Leo is a Fellow in the
Institute for Legal Research at the University of California, Berkeley, Boalt Hall School of Law.
Dr. Leo received his bachelors degree from the University of California, Berkeley, his master’s
degree from the University of Chicago, his juris doctorate from Boalt Hall School of Law, and
his Ph.D. from the University of California, Berkeley. His areas of research, training, and
specialization include social psychology, criminology, sociology, and law. Dr. Leo’s areas of
academic specialization including Criminal Law, Criminal Justice, Psychology and Law, Law
and Social Science, and Police Organization and Behavior. For more than two decades, Dr. Leo
has conducted empirical research on police interrogation practices, the psychology of
interrogation and confessions, psychological coercion, police-induced false confessions, and
erroneous convictions. In doing so, Dr. Leo spent nine months in the field with the Oakland,
California Police Department, which included observing 122 felony interrogations in 1992. In
1993, he observed 60 videotaped interrogations in the Vallejo and Hayward Police Departments.
Dr. Leo has analyzed thousands of cases involving interrogations and confessions and
has researched, written, and published numerous peer-reviewed articles on these subjects in
scientific and legal journals – often collaborating with Richard Ofshe, an internationally
recognized expert on false confessions. These publications include: Richard A. Leo, Why
Interrogation Contamination Occurs, The Ohio State Journal of Criminal Law (2013); Richard
A. Leo & Deborah Davis, Interrogation Related Regulatory Decline: Ego-Depletion, Failures of
Self-Regulation & the Decision to Confess, Psychology, Public Policy & Law (2012); and
Richard J. Ofshe & Richard A. Leo, The Decision to Confess Falsely: Rational Choice &
Irrational Action, 74 Denv. U. L. Rev. 979, 1117 (1997). Dr. Leo has written several books,
including Police Interrogation & American Justice (Harvard University Press 2008) and
Confessions of Guilt: From Torture to Miranda & Beyond (Oxford University Press 2012).
Federal and state courts have cited and relied upon Dr. Leo’s published works. See, e.g., Corley
v. United States, 556 U.S. 303, 321, 129 S.Ct. 1558, 173 L.Ed.2d 443 (2009) (“‘[C]ustodial
police interrogation, by its very nature, isolates and pressures the individual,’ and there is
mounting empirical evidence that these pressures can induce a frighteningly high percentage of
people to confess to crimes they never committed, see, e.g., Drizin & Leo, The Problem of False
Confessions in the Post–DNA World, 82 N.C.L.Rev. 891, 906-907 (2004).”) (internal citation
omitted); United States v. Preston, 751 F.3d 1008, 1027 (9th Cir. 2014) (“Under interrogation,
[arrestees] are not likely to understand that the police detective who appears to be friendly is
really their adversary or to comprehend the long-term consequences of making an incriminating
statement. Jon B. Gould & Richard A. Leo, One Hundred Years Later: Wrongful Convictions
After a Century of Research, 100 J.Crim. L. & Criminology 825, 847 n.119 (2010).”); Harris v.
Thompson, 698 F.3d 609, 632 n.12 (7th Cir. 2012) (“See generally Richard A. Leo, False
Confessions: Causes, Consequences, & Implications, 37 J. Am. Acad. Psychiatry & L. 332, 337
(2009) (“Interrogators help create the false confession by pressuring the suspect to accept a
particular account and by suggesting facts of the crime to him, thereby contaminating the
suspect’s postadmission narrative.”)).
Dr. Leo has given numerous lectures and presentations to judges, defense attorneys,
prosecutors, and other criminal justice professionals and has taught interrogation training courses
and/or given lectures to police departments in the United States, China, and the Republic of
Cyprus. He has received numerous awards, including the Lifetime Achievement Award (2014)
from the Society for the Study of Social Problems, Crime and Juvenile Delinquency Division;
the Paul Tappan Lifetime Achievement Award (2014), from the Western Society of
Criminology; and a Fellowship from the Center for the Advanced Study in the Behavioral
Sciences (2014-15) at Stanford University, among others. To date, Dr. Leo has consulted with
criminal and civil attorneys on approximately 1,800 cases involving disputed interrogations
and/or confessions, and has been an expert witness over 300 times in state, federal, and military
courts, including cases in the Northern District of Illinois. See, e.g., Caine v. Burge, No. 11 C
8996, 2013 WL 1966381 (N.D. Ill. May 10, 2013); Livers v. Schenck, No. 08 CV 0107, 2013
WL 5676881 (D. Neb. Oct. 18, 2013); United States v. Deuman, 892 F.Supp.2d 881 (W.D. Mich.
Dr. Leo’s Expert Opinions
Dr. Leo provides a list of the materials upon which he relied in forming his expert
opinions. These materials include: Chicago Police reports, event history records, crime scene
reports, property inventories, general progress reports, polygraph materials, Harris’ videotaped
confession, Dancy’s and Harris’ criminal records, Dancy’s statement, supplementary reports of
Jaquari’s death and polygraph tests, Harris’ criminal trial transcript, the Illinois Appellate Court
decision in People v. Harris, the Seventh Circuit’s opinion in Harris v. Thompson, filings in the
present lawsuit, Defendant Officers’ deposition transcripts, Harris’ deposition transcript, and
Alexander Levi’s deposition transcript.
In his expert report, Dr. Leo explains the study of police interrogations and false
confessions and proffers the following opinions in relation to this lawsuit:
(1) It has been well-documented in the empirical social science research literature
that hundreds of innocent suspects have confessed during police interrogation to
crimes (often very serious crimes such as murder and rape) that it was later
objectively proven they did not commit;
(2) Nicole Harris’s account of her multiple interrogations during her more than 30
hours at Area 5 on May 14-16, 2005 is consistent with the social science
empirical research literature on the types of interrogation techniques and
investigative practices that are associated with, increase the risk of, and are
known to cause innocent individuals to falsely confess;
(3) The accounts of the various Chicago police investigators who interrogated
Nicole Harris for between 28 and 30 hours on May 14-16, 2005, are not
consistent with the empirical findings of the social science research literature on
the factors associated with and known to increase the risk of and/or cause false
and unreliable confessions;
(4) In her account of what occurred during her police custody and/or
interrogations on May 14-16, 205, Nicole Harris describes the use of
interrogation techniques and practices that were guilt-presumptive, accusatory
and theory-driven. Nicole Harris describes interrogation procedures whose goal
was not to find the truth but to break down her denials of guilt and elicit from her
a confession to killing her son Jaquari Dancy;
(5) 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 nor that Nicole Harris had any
role in bringing it about;
(6) The initial spontaneous “confession” attributed to Nicole Harris, which she
denies, is inconsistent with empirical social science research on police
interrogation and confessions, as well as with logic and the physical evidence in
(7) The multiple interrogations described by Nicole Harris were both physically
and psychologically coercive: Nicole Harris’s account of what occurred during
her multiple interrogations contains interrogation techniques that are known to
cause a suspect to perceive that he or she has no choice but to comply with their
demands and/or requests and that are known to increase the risk of eliciting
involuntary statements, admissions and/or confessions;
(8) Nicole Harris’s account of what occurred during her multiple interrogations
contains numerous interrogation techniques, methods, and strategies that have
been shown by social science research to increase the risks of eliciting false and
unreliable statements, admissions and/or confessions (i.e., situational risk factors)
when misapplied to the innocent. These included false evidence ploys,
minimization, implied and explicit threats, and implied and explicit promises;
(9) Nicole Harris was also at a heightened risk during her interrogations of
making and/or agreeing to a false and unreliable confession because of her
personality traits (i.e., personal risk factors), specifically her submissiveness and
high suggestibility, as well as specific personality traits she had at that time (her
overwhelming grief over the loss of her son);
(10) The interrogations described by Nicole Harris involved documented
instances of police interrogation contamination (i.e., leaking and disclosing nonpublic case facts) and scripting that contravene universally accepted police
interrogation training standards and best practices, and which increased the risk
that Nicole Harris’ confession statement would, misleadingly, appear to be
detailed and self-corroborating; and
(11) The confession statement of Nicole Harris contains factual and logical errors,
inconsistencies, and other indicia of unreliability that are the hallmarks of false
and/or unreliable confessions.
(R. 274-1, 2/8/16 Leo Expert Report, at 2-4.)
“Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals., Inc., 509
U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), govern the admission of expert testimony in
federal courts.” C.W. ex rel. Wood v. Textron, Inc., 807 F.3d 827, 834 (7th Cir. 2015). “The
rubric for evaluating the admissibility of expert evidence considers whether the expert was
qualified, whether his methodology was scientifically reliable, and whether the testimony would
have assisted the trier of fact in understanding the evidence or in determining the fact in issue.”
Hartman v. EBSCO Indus., Inc., 758 F.3d 810, 817 (7th Cir. 2014); see also Higgins v. Koch
Dev. Corp., 794 F.3d 697, 704 (7th Cir. 2015) (“Rule 702 and Daubert require the district court
to determine whether proposed expert testimony is both relevant and reliable.”). Although the
Seventh Circuit reviews “the district court’s application of Daubert  de novo,” if “the court
adhered to the Daubert framework, then its decision on admissibility is reviewed for abuse of
discretion.” Estate of Stuller v. United States, 811 F.3d 890, 895 (7th Cir. 2016).
A district court’s evaluation of expert testimony under Daubert does not “take the place
of the jury to decide ultimate issues of credibility and accuracy.” Lapsley v. Xtek, Inc., 689 F.3d
802, 805 (7th Cir. 2012); see also Stollings v. Ryobi Techs., Inc., 725 F.3d 753, 765 (7th Cir.
2013) (“the district court’s role as gatekeeper does not render the district court the trier of all
facts relating to expert testimony”). Once it is determined that “the proposed expert testimony
meets the Daubert threshold of relevance and reliability, the accuracy of the actual evidence is to
be tested before the jury with the familiar tools of ‘vigorous cross-examination, presentation of
contrary evidence, and careful instruction on the burden of proof.’” Lapsley, 689 F.3d at 805
(quoting Daubert, 509 U.S. at 596). A district court’s inquiry under Daubert is a flexible one
and district courts have wide latitude in performing this gate-keeping function. See Kumho Tire
Co. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999); Hartman, 758
F.3d at 818. “‘[T]he key to the gate is not the ultimate correctness of the expert’s conclusions,’”
rather, “‘it is the soundness and care with which the expert arrived at her opinion[.]’” Wood, 807
F.3d at 834 (citation omitted); see also Stuhlmacher v. Home Depot U.S.A., Inc., 774 F.3d 405,
410 (7th Cir. 2014) (“It is not the trial judge’s job to determine whether the expert’s opinion is
correct.”). “[T]he proponent of the evidence must establish that the expert’s testimony is reliable
(and relevant) by a preponderance of the evidence.” United States v. Saunders, 826 F.3d 363,
368 (7th Cir. 2016).
In their Daubert motion, Defendant Officers argue that the Court should exclude Dr.
Leo’s opinion testimony on police interrogations and false confessions based on issues of
reliability and relevance. See Daubert, 509 U.S. at 597 (district court must ensure that expert
evidence “both rests on a reliable foundation and is relevant to the task at hand.”). In particular,
Defendants maintain that Dr. Leo’s opinions are unreliable because they are not based on
reliable science or a specialized area of knowledge, while other opinions do not reliably apply
his special knowledge to the facts of this case. Furthermore, Defendants assert that Dr. Leo’s
testimony – at its core – goes to witness credibility, which is the province of the jury, and that
some of his opinions proffer legal conclusions. Last, Defendants argue that Dr. Leo’s opinion
testimony would not be helpful to the jury because the phenomenon of false confessions is a
general proposition that is not disputed. The Court addresses each argument in turn.
Reliable Science/Specialized Area of Knowledge
Defendant Officers first assert that the Court should bar Dr. Leo’s expert opinions
because they are not based upon reliable science or any specialized knowledge. See United
States v. Smith, 811 F.3d 907, 909 (7th Cir. 2016) (expert opinion must be based on “scientific,
technical, or other specialized knowledge”) (quoting Fed.R.Evid. 702). “To gauge reliability, the
district judge must determine whether the expert is qualified in the relevant field and whether the
methodology underlying the expert’s conclusions is reliable.” Higgins, 794 F.3d at 704. “When
determining the reliability of a qualified expert’s testimony under Daubert, courts are to
consider, among other things: (1) whether the proffered theory can be and has been tested; (2)
whether the theory has been subjected to peer review; (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.” Baugh v. Cuprum S.A. de C.V., 845 F.3d 838, 844 (7th Cir. 2017); see
also Daubert, 509 U.S. at 593-94. “Daubert’s list of specific factors neither necessarily nor
exclusively applies to all experts or in every case.” Kumho Tire, 526 U.S. at 141; see also Wood,
807 F.3d at 835 (“this list is neither exhaustive nor mandatory.”). In other words, these four
factors “may be applied in differing degrees when it comes to non-Newtonian science or ‘other
specialized knowledge.’” Indianapolis Minority Contractions Ass’n, Inc. v. Wiley, No. 94 C
1175, 1998 WL 1988826, at *12 (S.D. Ind. May 13, 1998) (Tinder, J.) (quoting United States v.
Hall, 974 F. Supp. 1198, 1202 (C.D. Ill. 1997)). The “district court enjoys broad latitude both in
deciding how to determine reliability and in making the ultimate reliability determination.”
Higgins, 794 F.3d at 704 (citation omitted); see also Kumho Tire, 526 F.3d at 142 (“the law
grants a district court the same broad latitude when it decides how to determine reliability as it
enjoys in respect to its ultimate reliability determination.”) (emphasis in original).
In his expert report, Dr. Leo explains that there is a well-established empirical field of
research in the academic disciplines of psychology, criminology, and sociology on the subject of
police interrogation practices, psychological coercion, and false confessions dating back to 1908.
He asserts that this research has been the subject of extensive publication, has been submitted to
peer review and testing, and is based on recognized scientific principles and methods. Also, Dr.
Leo contends that this research is generally accepted in the social scientific community, and that
courts have applied this type of expert testimony in both criminal and civil rights litigation. See
Caine, 2013 WL 1966381, at *3 (“the field of police interrogation practices, psychological
coercion, and false confessions is sufficiently developed in its methods to constitute a reliable
body of specialized knowledge under Rule 702.”); see also Kluppelberg v. Burge, No. 13 C
3963, 2016 WL 6821138, at *4 (N.D. Ill. Sept. 16, 2016) (“Applying the Daubert factors to
Ofshe’s methodology, this court, like other courts in this circuit, has little trouble concluding that
Ofshe’s methodology is reliable.”); Scott v. City of Chicago, 07 C 3684, 2010 WL 3034254, at
*5 (N.D. Ill. Aug. 3, 2010) (denying Daubert motion to bar testimony of plaintiff’s false
confession expert Richard Ofshe). As the district court in Hall explained:
The Court  finds that the science of social psychology, and specifically the field
involving the use of coercion in interrogations, is sufficiently developed in its
methods to constitute a reliable body of specialized knowledge under Rule 702.
While Dr. Ofshe and his peers utilize observational, as opposed to experimental
techniques, this is wholly acceptable in the established field of social psychology.
Hall, 974 F. Supp. at 1205. Also, not only has the United States Supreme Court cited Dr. Leo’s
work with approval, see Corley v. United States, 556 U.S. 303, 321 (2009), the Seventh Circuit
cited Dr. Leo’s work when granting Harris’ habeas petition. See Harris, 698 F.3d at 632 n.12
(quoting Richard A. Leo, False Confessions: Causes, Consequences, & Implications, 37 J. Am.
Acad. Psychiatry & L. 332, 337 (2009)).
Despite numerous federal courts concluding that the science of psychology in relation to
police coercion in interrogations is sufficiently developed to constitute a reliable body of
specialized knowledge, Defendants argue that Dr. Leo’s conclusions are based upon
unacceptable rates of error and unacceptably small sample sizes, and that these problems are
compounded by the fact that Dr. Leo did not randomly select the case studies he used – in
contradiction of the third Daubert factor highlighted above. See Daubert, 509 U.S. at 594 (“in
the case of a particular scientific technique, the court ordinarily should consider the known or
potential rate of error.”). Keeping in mind that the Daubert list of reliability factors is neither
exhaustive nor mandatory, see Kumho Tire, 526 U.S. at 141, Defendant Officers also argue that
the scientific research conducted on this subject is not sufficiently developed to allow for reliable
conclusions as to causation.
Over twenty years ago, the Seventh Circuit explained that “[s]ocial science in general,
and psychological evidence in particular, have posed both analytical and practical difficulties for
courts attempting to apply Rule 702 and Daubert.” United States v. Hall, 93 F.3d 1337, 1342
(7th Cir. 1996). “Notwithstanding these difficulties, however, social science testimony is an
integral part of many cases.” Id.2 As the district court in Hall explained on remand, “[m]any
Defendant Officers attempt to distinguish Hall and its progeny by arguing that the
Seventh Circuit “properly applied the Daubert test for admissibility” in United States v. Mamah,
332 F.3d 475, 478 (7th Cir. 2003). In Mamah, the Seventh Circuit concluded that there was no
link between Dr. Ofshe’s research and his opinions. See id. at 478. Below, the district court
found that Dr. Ofshe employed “mere conclusory statements in his report about tactics used
social scientists rely primarily on real-world experience rather than experimentation to arrive at
their conclusions,” and the “primary method for analyzing and comparing real-world experiences
is systematic observation and analysis.” Hall, 974 F. Supp. at 1202-03. The Hall district court
further elucidated that “social scientists testify from a practical standpoint about the human
behavior they observe” and “write scholarly articles about their observations which are subjected
to peer review by others in their profession.” Id. at 1203. “This process of sharing one’s
findings with peers and having it critiqued by them may eventually lead to a common body of
knowledge worthy of being called a ‘science,’ albeit not a ‘hard’ science such as physics.” Id.
Nevertheless, Defendants take issue with the fact that Dr. Leo only identified 450 to 500
proven false confessions since the 1970’s, although Dr. Leo acknowledges in his report that “this
is surely an underestimate and thus the tip of a much larger iceberg for several reasons.” (Leo
Expert Report, at 5.) In his report, Dr. Leo clarifies, “false confessions are difficult for
researchers to discover because neither the state nor any organization keeps records of the
interrogations producing them,” and “even when they are discovered, false confessions are
notoriously hard to establish because of the factual and logical difficulties of proving the
confessor’s absolute innocence.” (Id. at 5.) (emphasis in original). Dr. Leo further explained in
[O]nly a small number of cases involving a disputed confession will ever come
with independent case evidence that allows the suspect to prove his innocence
beyond dispute because doing so is akin to proving the negative. The
documented number of proven false confessions in the scientific research
literature is, therefore, a dramatic undercount of the actual false confessions that
without specifics or elaboration.” United States v. Mamah, No. 00 CR 396, 2002 WL 34358182,
at *2 (N.D. Ill. Feb. 4, 2002). As with all Daubert motions, the facts of the case and the
particular expert report and testimony drive the Daubert analysis, as Mamah highlights.
police have elicited in the United States in recent decades. There have almost
certainly been thousands (if not tens or hundreds of thousands) more policeinduced false confessions than researchers have been able to discover and classify
as proven false. Indeed, in a survey of police that my colleagues and I published
in 2007, police investigators themselves estimated that they elicited false
confessions in 4.78% of their interrogations.
(Id. at 6.) Also, Drs. Leo and Ofshe have acknowledged these limitations in their publications
stating, “we have repeatedly pointed out that the methodological problems inherent in arriving at
a sound estimate are formidable and unsolved, and we have concluded that no well-founded
estimate has yet been published.” Richard A. Leo & Richard J. Ofshe, Using the Innocent to
Scapegoat Miranda: Another Reply to Paul Cassell, 88 J. Crim. L. & Criminology 557, 560
Defendant Officers also argue that the low sample size is compounded by the fact that
Dr. Leo did not randomly select his case studies. At his deposition, when asked about why he
did not use a random sample in his studies, Dr. Leo explained:
In the real world it’s impossible to do a random sample like that because there’s
no database from which to randomly sample, and in addition to that, strictly
speaking, you can’t parse out causation in the real world even if you had a
random sample. You can talk about statistical associations, but you can’t parse
out causation. So we have done that, and we’ve done it in the laboratory, and
we’ve done it one step better than your question asks by not only asking what –
what techniques cause false confessions, but what techniques that sometimes
cause false confessions – at what ratio do they cause false to true confessions
because the same techniques can cause both false and true confessions, right.
You can physically coerce true confessions. What we want to know is what’s the
greater risk when you use psychological coercion, threats, promises, et cetera.
(R. 325-1, 3/21/16 Leo Dep., at 136-37.) Simply put, Dr. Leo testified that there is no random
selection mechanism or database from which to draw random samples. (Id. at 136.)
At the Daubert hearing, Dr. Leo further clarified that in laboratory studies, social
scientists can induce true and false confessions to study the ratio of certain techniques that lead
to false or true confessions. He also stated that in laboratory experiments, he can isolate
variables and causation, but in the real world, social scientists cannot control the environment to
isolate variables. As such, Dr. Leo testified that there are inherent limitations in gathering
random samples for his studies.
Recently, Defendant City of Chicago raised similar arguments in relation to the expert
opinion of Dr. Ofshe, namely, that his sample size was not random and that the lack of reliable
data prevented him from developing a reliable scientific methodology. (13 C 3963, R. 309, 310
Daubert Mot. & Mem. ) In rejecting these arguments, the district court concluded:
Defendants’ specific arguments – that since Ofshe did not include non-coerced
confessions in his study he cannot opine on the rate of coerced confessions or that
there is a causal link between certain police tactics and false confessions – merely
identify limitations of Ofshe’s methodology, not that it is unreliable. Other than
citations to state-court cases in which Ofshe has not been permitted to testify,
defendants have not offered a reason why Ofshe’s opinion is rendered unreliable
by his inability to identify the rate at which coerced confessions occur. Allstate
Ins. Co. v. Maytag Corp., No. 98 C 1462, 1999 WL 203349, at *4 (N.D. Ill. Mar.
30, 1999) (“Moreover, a party who seeks to exclude expert testimony on the
ground of failure to conduct testing has the burden of explaining what tests should
have been run, and what would have been accomplished by that testing. ‘A
litigant that wants a court of appeals to set aside a district judge’s decision to
admit expert testimony has to do more than appeal to a lawyer’s sense of how
science should be done.’”) (quoting DePaepe v. General Motors Corp., 141 F.3d
715, 720 (7th Cir. 1998)). This is particularly true given that academic literature
posits that there are limitations that prevent scholars from identifying a coercion
rate. (See dkt. 318-3, APA Article, at 3 (“There are several reasons why an
incidence rate cannot be determined.”).)
Kluppelberg v. Burge, No. 13 C 3963, 2016 WL 6821138, at *4 (N.D. Ill. Sept. 16, 2016).
Similarly, in Caine v. Burge, the district court concluded:
[M]any of Defendants’ objections to Dr. Leo’s testimony can be explored and
challenged during cross-examination. For example, Defendants argue that Dr.
Leo’s methodology is not scientifically reliable because Dr. Leo relies mostly on
his own research, did not use random data sets, and his research requires a
subjective determination as to the truth or falsity of the confessions studied based
on incomplete case information. The Court concludes that these alleged
shortcomings do not provide a basis for barring Dr. Leo’s testimony, but
obviously provide ample areas for cross-examination.
Caine, 2013 WL 1966381, at *2.
Under these circumstances, Defendants have not established that Dr. Leo’s methodology
is unreliable from the perspective of social science, especially because Defendants do not
develop their arguments concerning the frequency of coerced confessions and the need for
randomized samples with sufficient legal or scientific authority in the context of social science.
See DePaepe v. General Motors Corp., 141 F.3d 715, 720 (7th Cir. 1998) (“A litigant that wants
a court of appeals to set aside a district judge’s decision to admit expert testimony has to do more
than appeal to a lawyer’s sense of how science should be done.”); see also Zenith Elecs. Corp. v.
WH-TV Broad. Corp., 395 F.3d 416, 419 (7th Cir. 2005) (lawyers “may fail to appreciate the
difficulties that bona fide experts encounter,” therefore, “[s]cientific decisions must be made by
scientific rather than rhetorical means.”).3 The Court therefore denies this aspect of Defendants’
Daubert motion because Dr. Leo’s opinions are based on a sound, accepted, and reliable
methodology. Defendants are free to cross-examine Dr. Leo on these issues.
Application of Reliable Method
Next, Defendant Officers argue that Dr. Leo did not apply his own research or
specialized knowledge to the facts of this case. See General Elec. Co. v. Joiner, 522 U.S. 136,
Defendant Officers’ reliance on Chavez v. Illinois, 251 F.3d 612 (7th Cir. 2001), is
misplaced. In Chavez, the plaintiffs attempted to prove discriminatory effect in the context of an
equal protection claim through the use of statistics. See id. at 637-39. The Seventh Circuit
considered the validity and value of the proffered statistical evidence drawn from available
Illinois State Police databases, as well as field reports, in concluding that these “statistics may
not be the sole proof of a constitutional violation.” Id. at 647-48.
146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) (“A court may conclude that there is simply too
great an analytical gap between the data and the opinion proffered.”). Under Daubert, a “critical
inquiry is whether there is a connection between the data employed and the opinion offered; it is
the opinion connected to existing data ‘only by the ipse dixit of the expert,’ that is properly
excluded under Rule 702.” Manpower, Inc. v. Ins. Co. of Penn., 732 F.3d 796, 806 (7th Cir.
2013) (quotation omitted). Moreover, expert testimony cannot “be based on subjective belief or
speculation.” Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 761 (7th Cir. 2010); see
also Brown v. Burlington N. Santa Fe Ry. Co., 765 F.3d 765, 772 (7th Cir. 2014) (“Rule 703
requires the expert to rely on “facts or data,” as opposed to subjective impressions.”). On the
other hand, “reliability of data and assumptions used in applying a methodology is tested by the
adversarial process and determined by the jury; the court’s role is generally limited to assessing
the reliability of the methodology – the framework – of the expert’s analysis.” Manpower, 732
F.3d at 808.
Dr. Leo’s Opinion: Plaintiff’s Confession was Illogical and Incomplete
Defendants argue that Dr. Leo’s opinion no. 11 – “[t]he confession statement of Nicole
Harris contains factual and logical errors, inconsistencies, and other indicia of unreliability that
are the hallmarks of false and/or unreliable confessions” – is not linked to his area of expertise.
See Wood, 807 F.3d at 832 (expert must “connect the dots between the scientific studies that he
analyzed and the opinions that he offered.”). Before addressing this argument, the Court turns to
Dr. Leo’s expert report for background.
In his report, Dr. Leo discussed how scientific researchers evaluate the likely reliability
and unreliability of an incriminating statement, admission, or full confession. In particular, he
stated that “scientific researchers analyze the fit between the suspect’s post-admission narrative
and the crime facts and/or corroborating evidence derived from the confession (e.g., location of
the missing murder weapon, loot from a robbery, the victim’s missing clothing, etc.).” (Leo
Expert Report, at 13-14.) He further elucidated:
The purpose of evaluating the fit between a suspect’s post-admission
narrative and the underlying crime facts and derivative crime evidence is to test
the suspect’s actual knowledge of the crime. If the suspect’s post-admission
narrative corroborates details only the police know, leads to new or previously
undiscovered evidence of guilt, explains apparent crime fact anomalies and is
corroborated by independent facts and evidence, then the suspect’s postadmission narrative objectively demonstrates that he possesses the actual
knowledge that would be known only by the true perpetrator and therefore is
strong evidence of guilt. If the suspect cannot provide police with the actual
details of the crime, fails to accurately describe the crime scene facts, cannot lead
the police to new or derivative crime evidence, and/or provides an account that is
full of gross errors and disconfirmed by the independent case evidence, then the
suspect’s post-admission narrative demonstrates that he fails to possess the actual
knowledge that would be known only by the true perpetrator and is therefore
strongly consistent with innocence. Indeed, absent contamination, the fit between
the suspect’s post-admission narrative and both the crime scene facts and the
derivative crime evidence therefore provides an objective basis for evaluating the
likely reliability of the suspect’s incriminating statements.
(Id. at 14.) Dr. Leo also stated in his report that “[t]he well-established and widely accepted
social science research principle of using the fit standard to evaluate the validity of a confession
statement is also a bedrock principle of criminal investigation within law enforcement.” (Id.)
Moreover, at the May 2017 Daubert hearing, Dr. Leo reiterated that in forming his opinion about
indicia of reliability, he applied an approach common in his field in which he compared indicia
of reliability and unreliability to Plaintiff’s confession. He further testified that he is not opining
that Harris gave a false confession, but that her confession contained indicia of unreliability.
Turning to Defendants’ argument about the logical errors in Plaintiff’s confession as
referenced in opinion no. 11, Dr. Leo stated in his report:
According to Nicole Harris, she never made the first confession that police
have attributed to her – that she killed Jaquari by placing a phone cord around his
neck and then the cord sheet to make his murder appear to be an accident.
However, everyone agrees that if Ms. Harris had made this confession, it was a
false confession, since Jaquari did not die from the strangulation by a telephone
cord. This first false confession (again attributed to Ms. Harris by police but
denied by her) reflected the investigators’ mistaken theory at the time (the
evening of May 14) of how Jaquari had died. It did not fit with the death scene
facts or evidence. The investigators only found out the following morning, after
Dr. Denton performed an autopsy, that Jaquari had not died from strangulation by
a telephone cord (but that the ligature marks around his neck had most likely
come from the elastic from Jaquari’s bedsheet), and the investigators thereafter
pressured Ms. Harris to agree to a different version of how she alleged killed
The second confession that the police investigators attributed to Ms.
Harris – that Ms. Harris put Jaquari on the upper most level of the bunk bed and
wrapped the loose end of an elastic band from a fitted sheet around his neck
before leaving the apartment – also did not match the death scene evidence.
Jaquari slept on the bottom bunk, not the top one, and he was found on the
ground. He could not have rolled off the top bunk, where Ms. Harris’ second
confession places him, because of the guard rail on the top bunk. This error is
corrected in Ms. Harris’ third and final confession which has Ms. Harris leaving
Jaquari on the ground after strangling him with the dangling elastic band from the
top bunk approximately four times. But even that confession contains an error
that does not match any other evidence or testimony – that the cord had been
wrapped around Jaquari’s neck approximately 10 times.
Assuming Ms. Harris’ account, her multiple false confessions to strangling
Jaquari not only contain the kinds of factual errors that social science research has
shown are associated with false and unreliable confessions, but they also make
little logical sense, another indicia of an unreliable confession. It makes no sense
that Ms. Harris would violently strangle her son Jaquari to death merely because
he had been playing outside after she had asked him to stay inside. Ms. Harris’
confession statements are not only contradicted by extrinsic evidence, but also by
logic and plausibility.
(Id. at 31.)
When questioned about the basis of his opinion as to logical errors at his deposition, Dr.
Leo focused on the State’s theory of Harris’ motive for killing her son, namely, that “parents
don’t usually kill children for something as trivial as playing outside when asked to stay inside,
that doesn’t logically fit – the anger associated with something that trivial is incommensurate
with a violent strangling to death, and so that just doesn’t make logical sense.” (Leo Dep., at 7576.) He further stated that “when people kill, they kill for motives that are commensurate with
the activity, not for something this trivial. And what you often see in false confession cases is
bogus motives created in the minds of interrogators that they pressure suspects to accept or to
make up.” (Id. at 76.) When asked what methodology he used to come to this conclusion, Dr.
Leo answered that his conclusion was based on “[m]y experience studying criminal cases for
many years. So obviously this is – this is an inference, conclusion based on that experience.”
(Id. at 77.) Dr. Leo then testified about his qualifications and expertise in linking motives to a
particular crime. He first explained that “the issue of motive comes up in interrogations because
interrogation is largely about ascribing a motive to somebody, getting them to confess and then
getting them to fill in the reason why they confessed.” (Id. at 83.) Dr. Leo followed up with his
qualifications by testifying as follows:
I’ve been studying this for 20 years after getting a Ph.D. that specialized in this. I
have reviewed, analyzed, written about hundreds, thousands of interrogations,
confessions, and, of course, my testimony is based on not just my own
contributions to a broader field of knowledge, but those of other social scientists
as well. So I’m drawing on that research, knowledge, experience when I arrive at
(Id. at 83-84.)
In their Daubert motion, Defendants take issue with Dr. Leo’s conclusions regarding the
logical errors in Plaintiff’s confessions because “there is ample evidence that Plaintiff’s anger
and frustration with Jaquari gradually escalated from hitting him with a belt to wrapping a cord
around his neck.” (R. 221, Defs.’ Daubert Brief, at 13.) Defendant Officers point to other
evidence in the record arguing that these “facts certainly make the confession more logical and
corroborate the confession,” including that Plaintiff yelled at her sons earlier that day. (Id. at 1314.) Likewise, at the Daubert hearing, Defendants further highlighted certain factual disparities
in Dr. Leo’s opinion, including whether Plaintiff confessed to wrapping the cord around her
son’s neck four times or ten times. In pointing to these factual disputes, Defendants argue that
Dr. Leo improperly relied upon Plaintiff’s version of the facts.4
It is well-settled that experts can base their opinions on disputed facts because the
“soundness of the factual underpinnings of the expert’s analysis and the correctness of the
expert’s conclusions based on that analysis are factual matters to be determined by the trier of
fact.” Kawasaki Kisen Kaisha, Ltd. v. Plano Molding Co., 782 F.3d 353, 360 (7th Cir. 2015)
(citation omitted). Indeed, the Advisory Committee’s Notes to Rule 702 envisioned factual
disputes in the context of expert opinions as follows:
When facts are in dispute, experts sometimes reach different conclusions based on
competing versions of the facts. The emphasis in the [Rule] on ‘sufficient facts or
data’ is not intended to authorize a trial court to exclude an expert’s testimony on
the ground that the court believes one version of the facts and not the other.
Fed.R.Evid. 702, advisory committee’s note (2000 amends.). “The Advisory Committee stressed
that ‘the trial court’s role as gatekeeper is not intended to serve as a replacement for the
adversary system’ or to allow the district court to preempt the jury by evaluating the correctness
of the facts on which the expert relied.” Richman v. Sheahan, 415 F. Supp. 2d 929, 943 (N.D.
Ill. 2006) (citation omitted). “Moreover, although an expert cannot rely on facts that are clearly
contradicted by undisputed evidence, an expert may rely on his client’s version of the facts when
forming his opinions.” Sanders v. City of Chicago Heights, No. 13 C 0221, 2016 WL 1730608,
In his report, Dr. Leo also proffered opinions crediting Defendants’ accounts,
concluding that several risk factors for a false confession remained. (Leo Report, at 33.)
at *6 (N.D. Ill. May 2, 2016) (citing Cage v. City of Chicago, 979 F. Supp. 2d 787, 810 (N.D. Ill.
2013). As the Seventh Circuit explained in Hall, “[t]he fact that there was a dispute between
Hall and the interrogating officers about the nature of the questioning itself provides no reason to
exclude the expert testimony; it is a rare case where everything is agreed except the subject
matter for which the expert is presented.” Hall, 93 F.3d at 1345; see also Scott v. City of
Chicago, 724 F. Supp. 2d 917, 923 (N.D. Ill. 2010) (“It is of course permissible for an opinion
witness, in arriving at his or her conclusions, to premise that result on one side’s view of
contested events.”). Moreover, Dr. Leo is not vouching for Plaintiff’s version of the facts. It
will be up to the jury to determine if it believes Plaintiff’s version of the facts upon which Dr.
Leo relied in rendering his opinions.
In addition, Defendants fail to cite legal authority that an expert witness cannot consider
his client’s version of the contested facts – or must consider both sides’ versions of the contested
facts – when forming expert opinions and the Court could find none. This is because “[e]xperts
routinely base their opinions on assumptions that are necessarily at odds with their adversary’s
view of the evidence.” Richman, 415 F. Supp. 2d at 942; see, e.g., Kluppelberg, 2016 WL
6821138, at *6. Indeed, it is well-established that Defendants can present trial evidence
contradicting the facts underlying Dr. Leo’s expert opinion, see, e.g., Indianapolis Airport Auth.
v. Travelers Prop. Cas. Co., 849 F.3d 355, 371 (7th Cir. 2017), and that juries resolve any such
factual conflicts. See Jimenez v. City of Chicago, 732 F.3d 710, 722 (7th Cir. 2013). “In
Daubert the Supreme Court expressly envisioned th[e]... role for the jury when it reminded all
that ‘[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on
the burden of proof are the traditional and appropriate means of attacking shaky but admissible
evidence.’” Stollings, 725 F.3d at 766 (quoting Daubert, 509 U.S. at 596). Accordingly, the
proper way for Defendants to challenge Dr. Leo’s factual assumptions is through crossexamination showing that these assumptions are in error and through the presentation of their
own witnesses. The Court therefore denies this aspect of Defendants’ Daubert motion.
In the same vein, Defendants contend Dr. Leo’s opinion that Plaintiff’s confession was
incomplete, namely, that she did not provide a fully developed confession, was not a legitimate
basis for him to conclude that Harris’ confession had the “hallmarks of a false confession.” In
making this argument, Defendants rely on an article published by Professor Paul Cassell for the
proposition that an incomplete confession is neither the hallmark of a false or true confession.
See Paul G. Cassell & Bret S. Hayman, Police Interrogation in the 1990s: An Empirical Study of
the Effects of Miranda, 42 UCLA L. REV. 839, 869 tbl. 4 (1996). Defendants’ arguments goes
to the weight – rather than the admissibility of – Dr. Leo’s expert testimony. See Stollings, 725
F.3d at 766 (“An expert may provide expert testimony based on a valid and properly applied
methodology and still offer a conclusion that is subject to doubt. It is the role of the jury to
weigh these sources of doubt.”). Defendants will have ample opportunity to cross-examine Dr.
Leo about these issues at trial.
Plaintiff’s Psychological or Personality Traits
Highlighting opinion no. 9, Defendants assert that Dr. Leo is not qualified to discuss
Plaintiff’s psychological or personality traits. Put differently, Defendants maintain that Dr.
Leo’s opinion about Plaintiff’s psychological and personality traits is outside of Dr. Leo’s
expertise. Opinion no. 9 reads in its entirety:
Nicole Harris was also at a heightened risk during her interrogations of making
and/or agreeing to a false and unreliable confession because of her personality
traits (i.e., personal risk factors), specifically her submissiveness and high
suggestibility, as well as specific personality traits she had at that time (her
overwhelming grief over the loss of her son).
At his deposition, Dr. Leo testified that he was not a clinical practicing or licensed
psychologist, but instead a research social psychologist, therefore, he is not qualified make
clinical diagnoses. (Leo Dep., at 10.) Also, Dr. Leo testified that although he never interviewed
Harris, he based his assessment of Harris’ personality traits on the Gudjonsson Suggestibility
Scales administered by a clinical psychologist named Dr. Bruce Frumkin and that he was very
familiar with this testing and how it is scored. (Id. at 11.) In his expert report, Dr. Leo relied
upon Dr. Frumkin’s test scores as follows:
[A]s Dr. Frumkin indicated in his 2006 assessment, Nicole Harris was in 2005,
extremely suggestible, testing in the 99th percentile. This means, as he states, that
she has an extreme tendency to succumb to the demands of authority figures,
especially when placed under pressure, and to give in to leading questions in
response to negative feedback to placate them. She is more likely to be easily led
and manipulated. As a result of the personality traits identified by Dr. Frumkin,
Nicole Harris was at that time highly vulnerable to making and/or agreeing to a
false and/or unreliable confession in order to please her interrogators, especially
the longer and/or more intense the interrogation(s) last. Dr. Frumkin notes that
Nicole “loses her ability to make rational use of information when she is under
stress.” Ms. Harris’s high level of interrogative suggestibility appears to be
explained by the personality traits identified by Dr. Frumkin. In short, Ms. Harris
is highly suggestible, compliant and conflict averse, personality traits that clinical
psychological research has, for decades, shown to increase the risk that
individuals will yield to the pressures of interrogation and shift their answers to
satisfy their interrogators.
(Leo Expert Rep., at 29.) Based on his background in psychology and familiarity with the
Gudjonsson Suggestibility Scales test and how it is scored, Dr. Leo’s reliance on Dr. Frumkin’s
calculation of Plaintiff’s tests scores complies with Rule 702, which allows experts to rely on
sufficient facts or data. Meanwhile, as the Court ruled earlier in granting Plaintiff’s motion to
exclude Defendants’ rebuttal expert Dr. Orest Wasyliw, Dr. Leo cannot testify as to any of Dr.
Frumkin’s opinions when rendering his own opinions.
Relevancy/Assist Trier of Fact
Defendant Officers’ arguments concerning credibility determinations, legal conclusions,
and helpfulness concern relevancy. See Jimenez v. City of Chicago, 732 F.3d 710, 722 (7th Cir.
2013). Rule 702 “requires that the evidence or testimony ‘assist the trier of fact to understand
the evidence or to determine a fact in issue,’” which “goes primarily to relevance.” Daubert,
509 U.S. at 591 (citation omitted); see also Stuhlmacher, 774 F.3d at 409 (“An expert’s
testimony qualifies as relevant under Rule 702 so long as it assists the jury in determining any
fact at issue in the case.”).
Defendant Officers contend that many of Dr. Leo’s expert opinions touch on witness
credibility and that it is the exclusive province of the jury to determine the weight and credibility
of witness testimony. See Stollings, 725 F.3d at 765 (“The jury must still be allowed to play its
essential role as the arbiter of the weight and credibility of expert testimony.”); Goodwin v. MTD
Prod., Inc., 232 F.3d 600, 609 (7th Cir. 2000) (“credibility questions are within the province of
the trier of fact”); United States v. Hall, 165 F.3d 1095, 1107 (7th Cir. 1999) (“[T]he credibility
of eyewitness testimony is generally not an appropriate subject matter for expert testimony
because it influences a critical function of the jury – determining the credibility of witnesses.”).
Again, Defendants argue that Dr. Leo’s opinions vouch for one version of the disputed facts
underlying this lawsuit and that his factual basis is “incorrect.” Defendants’ argument echoes
their earlier assertion that Dr. Leo’s opinion testimony is inadmissible because he relied upon
Plaintiff’s version of the facts. See Sanders, 2016 WL 1730608, at *6 (“although an expert
cannot rely on facts that are clearly contradicted by undisputed evidence, an expert may rely on
his client’s version of the facts when forming his opinions.”).
In any event, Defendant Officers specifically argue that in his opinion no. 5, Dr. Leo
relies on the fact that Jaquari died accidently and that this factual basis “completely ignores the
fact that the only forensic pathologists disclosed in this case have uniformly concluded that
Jaquari’s death was the result of homicidal strangulation.” (Defs.’ Daubert Brief, at 10.) Thus,
Defendants argue Dr. Leo’s opinion that – “none of the death scene evidence suggests that
Jaquari was killed intentionally or that a crime occurred” – has no basis in fact. (See id.; Leo
Expert Report, at 32.)
Attached to his expert report, Dr. Leo lists the materials he relied upon when forming his
opinions. (R. 326, Appendix C.) Although Dr. Leo did not review the forensic pathologists’
reports or deposition transcripts, he did review other “death scene evidence” that police gathered
on May 14, 2005 prior to Plaintiff’s confessions. In particular, the list of materials indicates that
Dr. Leo reviewed physical evidence concerning the crime scene, including ambulance records,
reports describing the physical evidence, and reports about the photos taken at the crime scene.
Dr. Leo also reviewed records concerning the 911 call, the CPD initial report, and other CPD
reports and event histories submitted on May 14, 2005 before Plaintiff gave her confession. At
the May 2017 Daubert hearing, Dr. Leo clarified his opinion no. 5 explaining that at the time of
Plaintiff’s interrogation – which took place before the medical examiner’s autopsy – “there was
no evidence indicating that she had killed her child. There had been – there had not been a
conclusion by a medical examiner or coroner or any independent evidence suggesting she was
responsible for this death.”
When questioned at the Daubert hearing, Dr. Leo admitted that he did not review some
of the other physical evidence that police gathered on the day of Jaquari’s death, such as
Jaquari’s emergency room records. Nonetheless, Dr. Leo’s opinion concerns what Defendant
Officers knew at the time of Plaintiff’s interrogation and confession – not what Defendant
Officers learned after the medical examiner performed Jaquari’s autopsy on May 15, 2015. To
further muddy the waters, at Plaintiff’s criminal trial, Dr. Denton, the Cook County Medical
Examiner who conducted Jaquari’s autopsy, testified that he had originally concluded that
Jaquari’s death was accidental in his May 15, 2005 report, but changed his report later after a
police detective informed him of Plaintiff’s confession. See People v. Harris, 389 Ill. App.3d
107, 114 (1st Dist. 2009). In fact the post mortem report Defendants moved into evidence at the
Daubert hearing indicates that Dr. Denton signed his revised post mortem examination report on
July 8, 2005. (R. 340-1, Denton Report, at 6.) Thus, the physical evidence known at the time of
Plaintiff’s interrogation and confession did not include the autopsy report concluding that
Jaquari’s death was a homicide. Therefore, there is a factual basis for Dr. Leo’s conclusions in
relation to opinion no. 5.
Although there is a factual premise for Dr. Leo’s opinion no. 5, Dr. Leo is not qualified to
proffer his opinions that “none of the death scene evidence suggests that Jaquari was killed
intentionally or that a crime occurred” and there was “no evidence whatsoever to indicate that
Jaquari Dancy’s death was anything other than accidental nor that Nicole Harris had any role in
bringing it about” because he is not a police practices expert. To clarify, Dr. Leo does not have
the requisite “knowledge, skill, experience, training or education” to opine that Jaquari’s death
was accidental. See Fed.R.Evid. 702. Although Dr. Leo’s experience includes observing
confessions and interrogations, he does not have sufficient law enforcement or forensic evidence
experience or training to connect the dots to his conclusion that Jaquari’s death was accidental.
See Wood, 807 F.3d at 837. Without any such expertise, Dr. Leo’s opinions are subjective and
speculative. See Manpower, Inc., 732 F.3d at 806 (“The critical inquiry is whether there is a
connection between the data employed and the opinion offered.”); see also Metavante Corp., 619
F.3d at 761. Further, Dr. Leo’s conclusions would not be helpful to the trier of fact. See Matter
of the Complaint of Ingram Barge Co., No. 13 C 3453, 2016 WL 3763450, at *10 (N.D. Ill. July
14, 2016) (“Expert testimony does not assist the trier of fact when [it] is able to evaluate the
same evidence and is capable of drawing its own conclusions without the introduction of a
proffered expert’s testimony.”). Accordingly, the Court bars Dr. Leo from testifying as to
opinion no. 5.
Defendant Officers also seek to exclude certain opinions arguing that they are legal
conclusions. As a general rule, an expert cannot offer legal opinions or conclusions. See Good
Shepherd Manor Found., Inc. v. City of Momence, 323 F.3d 557, 564 (7th Cir. 2003) (“Expert
testimony as to legal conclusions that will determine the outcome of the case is inadmissible.”);
Client Funding Solutions Corp. v. Crim, 943 F. Supp. 2d 849, 863 (N.D. Ill. 2013) (“Opinions
that amount to legal conclusions do not assist the trier of fact.”). Put differently, although Rule
704(a) “states that ‘[a]n opinion is not objectionable just because it embraces an ultimate issue,’”
Rules 702 and 704, “prohibit experts from offering opinions about legal issues that will
determine the outcome of a case.” Roundy’s Inc. v. N.L.R.B., 674 F.3d 638, 648 (7th Cir. 2012);
see also King v. Kramer, 763 F.3d 635, 646 (7th Cir. 2014).
Here, Defendants argue that Dr. Leo’s opinions nos. 2, 3, 4, and 8 essentially state that
“all modern interrogations are coercive” and that this statement is contrary to law. (Defs.’
Daubert Brief, at 15.) Further, Defendant Officers contend that Dr. Leo opined that “legally
acceptable interrogation techniques are psychologically coercive.” (Id.) In making this
argument, Defendants assert that police officers “are allowed to play on a suspect’s ignorance,
his anxieties, his fears, and his uncertainties; they just are not allowed to magnify those fears,
uncertainties, and so forth to the point where rational decision becomes impossible.” United
States v. Rutledge, 900 F.2d 1127, 1130 (7th Cir. 1990); see also Green v. City of Wenatchee,
No. CS-01-072, 2003 WL 26089744, at *4 (E.D. Wash. Mar. 14, 2003) (“there is no clearlyestablished constitutional right to be free from an environment that would elicit a false
confession, absent coercion.”).
First, at no point in his expert report or during his testimony did Dr. Leo opine that “all
modern interrogations are coercive” or that “legally acceptable interrogation techniques are
psychologically coercive.” Second, Defendants’ reliance on Rutledge and Green is misplaced
because Plaintiff is arguing that Defendant Officers’ interrogation was coercive and that
Defendants’ conduct resulted in her irrational confession in violation of her due process rights.
See Chavez v. Martinez, 538 U.S. 760, 774, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003). As such,
Defendants’ argument that Dr. Leo’s opinions include legal conclusions fails.
Last, Defendants argue that Dr. Leo’s expert opinions are not helpful. More specifically,
Defendants argue that they “do not quibble with the idea mentioned in opinion no. 1 that it is
possible for someone to falsely confess to a crime”, and that “this concept does not require
expert testimony because it will be admitted on cross-examination of Defendant Officers.”
(Defs.’Daubert Brief, at 5.) Defendant Officers’ attempt to exclude Dr. Leo’s testimony
pursuant to Daubert’s helpfulness requirement is based on a faulty and restrictive premise. To
clarify, in Hall, the Seventh Circuit explained that in the context of jurors having beliefs about
false confessions “the question is whether those beliefs were correct,” and that “[p]roperly
conducted social science research often shows commonly held beliefs are in error.” Hall, 93
F.3d at 1345; see also Tyus v. Urban Search Mgmt., 102 F.3d 256, 263 (7th Cir. 1996) (“Social
scientists in particular may be able to show that commonly accepted explanations for behavior
are, when studied more closely, inaccurate. These results sometimes fly in the face of
conventional wisdom.”). Also in Hall, the Seventh Circuit further reasoned that expert
testimony would “let the jury know that a phenomenon known as false confessions exists, how to
recognize it, and how to decide whether it fits the facts of the case being tried.” Id. at 1345; see
also United States v. West, 813 F.3d 619, 624 (7th Cir. 2015) (“Evidence bearing on the
trustworthiness of a confession is generally relevant and admissible absent some specific reason
to exclude it, such as unfair prejudice or juror confusion.”). In summary, Dr. Leo’s expert
testimony regarding false confessions will be helpful to explain why false confessions happen
and how to recognize false confessions, thus allowing the jury to use this framework to apply to
the facts of this case. Finally, in her response brief, Plaintiff acknowledges that Dr. Leo cannot
testify that her interrogation was coercive or that she gave a false confession because these are
questions for the jury. (Resp. Brief, at 13.) The Court therefore denies this aspect of
Defendants’ Daubert motion.
For these reasons, the Court, in its discretion, grants in part and denies in part
Defendants’ Daubert motion and grants in part and denies in part Plaintiff’s Daubert motion
concerning Plaintiff’s expert witness Dr. Leo.
Dated: June 5, 2017
AMY J. ST. EVE
United States District Court Judge
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