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UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ERIC CAINE, ) 

 ) No. 11 C 8996 

 Plaintiff, ) 

 ) 

 v. ) Judge Thomas M. Durkin 

 ) 

JON BURGE, et al., ) 

 ) 

 Defendants. ) 

MEMORANDUM OPINION AND ORDER

 Before the Court is Defendants’ motion to bar Dr. Richard Leo’s expert report 

and testimony at trial pursuant to Federal Rule of Evidence 702 and Daubert v. 

Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). R. 184. Plaintiff Eric Caine 

retained Dr. Leo, a law professor and sociologist from the University of San 

Francisco, to opine “on the phenomenon of police-induced false confessions, risk 

factors for false confession, physical and psychological coercion, police 

contamination and corroboration of confessions, and indicia of unreliability.” R. 184-

1 (Leo Report) at 3-4. Dr. Leo’s report discusses these issues and factors as they 

relate to the interrogations and confession statements of Caine and his co-defendant 

in the underlying criminal case, Aaron Patterson. 

 “The admissibility of expert testimony is governed by Federal Rule of 

Evidence 702 and the Supreme Court’s opinion in Daubert[.]” Lewis v. CITGO 

Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009). “The district court functions as a 

gatekeeper with respect to testimony proffered under Rule 702 to ensure that the 

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testimony is sufficiently reliable to qualify for admission.” Mihailovich v. Laatsch, 

359 F.3d 892, 918 (7th Cir. 2004) (citing Kumho Tire Co. v. Carmichael, 526 U.S. 

137, 147 (1999)); see also Lapsley v. Xtek, Inc., 689 F.3d 802, 805 (7th Cir. 2012) 

(“The purpose of the [Daubert ] inquiry is to vet the proposed testimony under Rule 

702’s requirements that it be ‘based on sufficient facts or data,’ use ‘reliable 

principles and methods,’ and ‘reliably appl[y] the principles and methods to the 

facts of the case.’”) (quoting Fed. R. Evid. 702)). Whether to admit opinion testimony 

rests within the discretion of the district court. See General Elec. Co. v. Joiner, 522 

U.S. 136, 142 (1997); Lapsley, 689 F.3d at 810 (“we ‘give the district court wide 

latitude in performing its gatekeeping function and determining both how to 

measure the reliability of expert testimony and whether the testimony itself is 

reliable’”) (citation omitted). 

 District courts employ a three-part analysis before admitting opinion 

testimony: (1) the witness must be qualified as an expert by knowledge, skill, 

experience, training, or education; (2) the witness’s reasoning or methodology 

underlying his testimony must be scientifically reliable; and (3) the witness’s 

testimony must assist the trier of fact in understanding the evidence or to 

determine a factual issue. See Myers v. Illinois Cent. R.R. Co., 629 F.3d 639, 644 

(7th Cir. 2010). 

 First, with regard to qualifications, Rule 702 allows parties to introduce 

opinions if the witness has the requisite “knowledge, skill, experience, training, or 

education.” Dr. Leo has a Ph. D. in social policy (specializing in criminology and 

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social psychology) from the University of California, Berkeley, a master’s degree in 

social sciences from the University of Chicago, and a bachelor’s degree in sociology 

(with honors) from the University of California, Berkeley. R. 184-1 (Leo curriculum 

vitae). Dr. Leo is both a professor and research scholar at the University of San 

Francisco, and a fellow at the Institute for Legal Research Criminal Justice Studies 

Program at Berkeley. See id. Dr. Leo has authored dozens of peer-reviewed 

publications in the field of police interrogation and false confessions, and has been 

qualified to testify as an opinion witness over 200 times. Defendants do not 

challenge Dr. Leo’s credentials. The Court concludes that Dr. Leo’s education, 

experience, and knowledge qualify him as a witness who can render an opinion in 

the field of police interrogation and false confessions. 

 The Seventh Circuit has recognized 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). In Hall, however, the Seventh Circuit held 

that the district court’s decision to exclude opinion testimony on the subject of false 

confessions “overlooked the utility of valid social science.” Id. at 1345. The court 

explained: 

 Even though the jury may have had beliefs about the subject, the question is 

 whether those beliefs were correct. Properly conducted social science research 

 often shows that commonly held beliefs are in error. Dr. Ofshe’s testimony, 

 assuming its scientific validity, would have let the jury know that a 

 phenomenon known as false confessions exists, how to recognize it, and how 

 to decide whether it fit the facts of the case being tried. 

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Id.1 The same is true here. Although jurors’ common sense may suggest to them 

that someone would never falsely confess to committing murder, Dr. Leo’s 

testimony will educate jurors that false confessions sometimes do occur. As a result, 

the Court believes it will be helpful for the jury to hear expert testimony on this 

issue. See, e.g., United States v. Hall, 974 F. Supp. 1198, 1206 (C.D. Ill. 1997) 

(concluding that Dr. Ofshe’s testimony challenging the common misperception 

among the public that once a person confesses to his guilt, he must be guilty, would 

help the trier of fact determine whether the defendant falsely confessed after being 

subjected to coercive interrogation techniques). 

 Moreover, “the trial court’s role as gatekeeper is not intended to serve as a 

replacement for the adversary system.” Fed. R. Evid. 702, Advisory Committee’s 

Note (2000 Amendments). “As the Court in Daubert stated: ‘Vigorous crossexamination, presentation of contrary evidence, and careful instruction on the 

burden of proof are the traditional and appropriate means of attacking shaky but 

admissible evidence.’” Id. (quoting 509 U.S. at 595). 

 Here, many 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 

 

1 Like Dr. Leo, Dr. Ofshe has been qualified as an expert in the field of coercive police interrogation 

techniques and the phenomenon of false or coerced confessions. See United States v. Hall, 974 F. 

Supp. 1198, 1199 (C.D. Ill. 1997). Dr. Leo and Dr. Ofshe have co-authored several articles and given 

joint presentations on the subject of false confessions. R. 184-1 (Leo curriculum vitae) at 11-12, 30, 

36, 39. 

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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. 

 Rule 702 allows opinion witnesses to testify if the testimony is based on 

sufficient facts or data; the testimony is the product of reliable principles and 

methods; and the expert applies the principles and methods reliably to the facts of 

the case. Fed. R. Evid. 702. The Supreme Court has set forth the following nonexhaustive list of guideposts: (1) whether the theory has been tested; (2) whether 

the theory has been subjected to peer review and publication; (3) the known or 

potential rate of error; and (4) whether it has been generally accepted within the 

relevant scientific community. Daubert, 509 U.S. at 593-94. 

 Dr. Leo asserts that there is a well-established empirical field of research—

dating back to 1908—in the academic disciplines of psychology, criminology, and 

sociology on the subject of police interrogation practices, psychological coercion, and 

false confessions. Leo Report at 4. Scientific researchers have analyzed the patterns, 

characteristics, and indicia of reliability in true and false confession cases, and 

examine the “fit” between the suspect’s post-admission narrative and the 

underlying crime facts/evidence in order to evaluate the likely reliability or 

unreliability of an incriminating statement, admission, or full confession from a 

suspect. Id. at 16-17. Researchers have found that this practice, referred to as the 

“fit standard” in Dr. Leo’s report, is susceptible to contamination by interrogators 

and the media, among other sources. Id. at 22. In addition to relying on social 

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science research regarding the contamination of post-admission narrative 

statements, Dr. Leo cites various studies and research on coercive interrogation 

techniques used by law enforcement that have been found to induce false 

confessions. Id. at 12-16. 

 The Court finds that Dr. Leo, through his report and its attachments, has 

demonstrated that 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. Accordingly, the Court denies 

Defendants’ motion to bar Dr. Leo’s testimony as unreliable. As noted, Defendants 

are free to test Dr. Leo’s methodology on cross-examination. 

 Defendants next argue that Dr. Leo’s testimony should be barred under Rule 

702 because it will not assist the jury in its assessment of Caine’s and Patterson’s 

confessions. Specifically, Defendants point to Dr. Leo’s prior testimony that, based 

on the studies available, it is not currently possible to reach reliable estimates of 

the incidence of false confessions. In other words, Dr. Leo cannot tell the jury how 

often a true confession is obtained using the same practices and techniques that Dr. 

Leo alleges may result in false confessions. As discussed above, the Court finds that 

Dr. Leo’s testimony is helpful in that it informs jurors that false confessions happen 

and offers theories as to why someone might confess to a crime he did not commit. 

Again, Defendants may test the validity and reliability of Dr. Leo’s opinions during 

cross-examination. 

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 Dr. Leo will be permitted to testify to various factors that can cause false 

confessions, and to their presence in this case. Dr. Leo will also be permitted to 

generally testify that, based on his knowledge, experience, and study of confessions 

and police interrogation, false confessions frequently do not contain the type of 

crime scene knowledge that only a true perpetrator would have, and that some false 

confessions contain such detail because of police contamination. However, Dr. Leo 

will not be allowed to testify as to his opinion that Caine’s and Patterson’s 

confession statements were false. In particular, he will not be allowed to testify as 

to his comparison of the witnesses’ confessions and the physical evidence of the 

crime. That is decidedly a jury question and allowing Dr. Leo to opine on that 

subject would invade the province of the jury. Specifically, the Court will not allow 

Dr. Leo to testify to the opinions included in his report dated January 10, 2013 at 

pages 31 (second full paragraph), page 32 (entirety), page 46 (second paragraph), 

and page 47 (first paragraph, carried over from page 46). Obviously, statements in 

his report beyond these paragraphs that deal with the same type of testimony are 

similarly disallowed (i.e., the statement in his conclusion that the confessions are 

unreliable). 

 Finally, Dr. Leo will not be allowed to testify until after a proper foundation 

for his opinions has been set forth through the testimony of Caine, Patterson, and 

any other witnesses and admitted exhibits that Dr. Leo seeks to rely upon to render 

his opinion. Dr. Leo is free to be present in court to observe such testimony, or may 

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read transcripts of that testimony before he is called to testify. He is free to review 

admitted exhibits as he wishes. 

 For the reasons stated above, Defendants’ motion to bar the expert report and 

testimony of Dr. Richard Leo is denied, subject to the limitations set forth in this 

opinion. 

 ENTERED: 

 

 ____________________________ 

 Honorable Thomas M. Durkin 

 United States District Judge 

Dated: May 10, 2013 

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