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New York continues to rely on the Frye test … cont

Clearly, the court would not allow the witness to testify that the statement given by defendant is false as that is a question exclusively for the jury. With respect to the other issues, New York continues to rely on the Frye test for the admissibility of novel evidence. Part of the criteria is that the testimony must be based on principles that are generally accepted in the relevant scientific community.

The Third Department has excluded this kind of testimony on the basis that it lacked the “certainty that would give it probative force”. Further, in a case, the Appellate Division in our Department held that the trial court properly precluded expert testimony concerning a victim’s veracity and suggestibility.

Defendant references two cases in support of his contention that the testimony should be admitted, which the court could not locate, and the other case. There, the Justice conducted a 12 day Fye hearing, after which he permitted, as a matter of discretion, the testimony of a doctor with respect to his studies on the voluntariness of confessions generally and the phenomenon of false confessions. However, the doctor who is the co-author of a treatise was not permitted to testify.

The criminal court believes it is bound by Appellate Division decisions in other Judicial Departments in the absence of contrary authority in the Fourth Department. Therefore, the Third Department having spoken directly to this issue, the motion of the District Attorney must be granted and the proposed testimony precluded.

The court notes that it would reach the same conclusion on the facts of this rape case. In a case, the defendant had been interrogated for over 15 hours, was deprived of food and drink, was not allowed to speak with his girlfriend, may have been under the influence of alcohol, drugs, or both, and may have been misled about his polygraph results. Here, defendant met with Investigator Welling in a non-custodial, public place. There is no showing that the proposed testimony would be at all relevant in this case.

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