Last Friday, a divided panel of the Ninth Circuit ruled in Tekoh v. County of Los Angeles that a plaintiff, Terence Tekoh, who claimed that police unconstitutionally coerced a confession from him was entitled to a new trial because the district court improperly excluded testimony of an expert on coerced confessions.
In her majority opinion, Judge Kim McLane Wardlaw, joined by Chief Judge Mary Murguia, explained that the expert testimony would have been relevant. Among other things, the expert “planned to testify that the apologies and excuses in Tekoh’s statement demonstrate that [an officer] utilized minimization tactics—classic coercion—to elicit incriminating admissions.” (Emphasis added.)
Although Wardlaw doesn’t bother to explain the term, minimization is evidently an interrogation tactic “in which an interrogator attempts to decrease a suspect’s resistance to confessing by … downplaying the seriousness of the crime.” I offer no view on whether minimization might result in false confessions, but I do find it very strange that Wardlaw would call it “classic coercion.” Is minimization really in the same class as torture, beatings, and threats?
In dissent, Judge Eric Miller points out that the expert’s testimony would have violated the principle that experts are not to testify to a witness’s credibility, as the expert’s testimony “expressly assumed the veracity of Mr. Tekoh’s account of events, thus assuming that his confession was coerced.” (Cleaned up.) Miller also invokes the elementary proposition that a district court has broad discretion to exclude expert testimony even when it is relevant.
If the name Tekoh sounds familiar to you, that might be because this case is on remand from the Supreme Court’s ruling a year ago in Vega v. Tekoh. Perhaps a second—this time summary?—reversal of the Ninth Circuit is in order. As it happens, Judge Wardlaw has quite a record of being summarily reversed by the Court.