The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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HOWARD POWELL,
Petitioner,
-against- NOT FOR PUBLICATION
MEMORANDUM & ORDER
JOHN COLVIN, Superintendent of Five 1:23-cv-1249 (CBA)
Points Correctional Facility,
Respondent.
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AMON, United States District Judge:
Howard Powell, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging
his state-court conviction of two counts of robbery under New York Penal Law § 160.15(3). Powell
asserts that the preclusion of two expert witnesses from testifying at trial deprived him of his
constitutional right to present a complete defense. (ECF Docket Entry (“D.E.”) # 1 at 35-36.) For
the reasons set forth below, the petition is DENIED.
BACKGROUND1
Powell was indicted for two robberies. The first occurred on February 23, 2010. (D.E. # 9
at 4.) It involved the knifepoint robbery of Hilda Torres in the elevator of an apartment building
in the Queensbridge Housing Complex. (Id.) The second robbery occurred two days later, on
February 25, 2010. In that case, the victim, Esther Yan, was robbed in an elevator of a different
building in the same Queensbridge Housing Complex. (Id. at 4-5.) Among the items taken from
Yan was an Electronic Benefits Transfer (“EBT”) card that the perpetrator attempted to use at a
deli on the same day as the robbery. (Id. at 5.)
1 Because Powell was convicted, I construe the facts in the light most favorable to the verdict. See United
States v. Wasylyshyn, 979 F.3d 165, 169 (2d Cir. 2020).
Powell went to trial on the Yan robbery. Below, I summarize the pretrial and trial
proceedings relevant to his claim that he was denied his constitutional right to a complete defense
by the state court precluding him from calling two expert witnesses, one on false confessions and
the other on eyewitness identifications.
I. Pre-Trial Matters
A. Pre-Trial Dunaway/Wade/Huntley Hearing
On June 2, 2011, a combined Dunaway/Wade/Huntley hearing was held in Queens County
Supreme Court before Justice Steven Paynter. (D.E. # 1-9 at 11.) Justice Paynter denied
suppression of Powell’s post-arrest statements in the Yan robbery, a decision not challenged in
this habeas petition. (Id. at 415-16.) He granted the suppression of the typed statement about the
Torres robbery for failure to give statutorily required notice. (Id. at 414.) Justice Paynter also
denied Powell’s motion to suppress a photo array and lineup identification by Torres. (Id. at 415.)
Powell did not challenge the identification procedures in the Yan case.
B. Severance of the Two Robbery Counts
Justice Ira Margulis, the trial judge, ordered the trials for the Yan and Torres robberies to
be severed. (D.E. # 1-10 at 11-12.) He did so to allow Powell to testify at trial to refute the
voluntariness of his Yan statement without opening the door on cross-examination to the Torres
statement. (Id.)2
C. Suppression of Eyewitness-Identification Expert
Prior to trial, Powell moved to admit the testimony of Nancy Franklin, Ph.D. on the
“reliability of eyewitness memory and identification.” (D.E. # 1-10 at 384.) To undermine Yan’s
2 After his conviction, Powell agreed to plead guilty to the Torres robbery on the understanding that if the
conviction was reversed on the Yan robbery, he could withdraw his plea on the Torres robbery. (D.E. # 14-5 at 183-
84.)
lineup identification, Powell sought Dr. Franklin’s testimony on topics such as “the low correlation
between an eyewitness’s confidence and accuracy,” “the effect of high stress and the violence of
the encounter on memory for faces,” “the effect of a threat of a visible weapon on the identification
of the person holding it,” and “the tendency of persons of all races to be poorer at recognizing the
faces of persons of other races.” (Id. at 384-85.)
On December 11, 2013, Justice Margulis precluded Dr. Franklin’s testimony in the Yan
case but admitted it in the Torres case. (Id. at 12.) Relying on the two-step inquiry from People v.
LeGrand, 8 N.Y.3d 449, 452 (2007), Justice Margulis found that, at the first step, there was enough
evidence corroborating Yan’s identification of Powell to render eyewitness expert testimony
unnecessary. (D.E. # 1-10 at 12, 14.) Specifically, the Justice found that Yan’s identification was
corroborated by Powell’s two post-arrest statements and surveillance footage from both the
elevator robbery and the deli.3 (Id. at 14.) By contrast, in the Torres case, the court concluded that
with Powell’s statement suppressed, there was insufficient corroboration of her identification of
Powell, and the eyewitness expert was a necessary counterbalance. (Id.)
D. Suppression of False-Confession Expert
Powell further sought to admit the testimony of Allison Redlich, Ph.D., a tenured associate
professor at the School of Criminal Justice of the University of Albany, on the science of false
confessions. (D.E. # 1-10 at 462-64.) Justice Margulis ordered a Frye4 hearing “to establish: 1)
whether Dr. Redlich, the proposed expert, [was] qualified to testify; 2) whether her testimony [was]
3 These videos were provided to the Court on February 11, 2026. They do not appear on the docket because
their large file size necessitated submission via the Court’s digital-media evidence portal.
4 Frye v. United States, 293 F. 1013 (Ct. App. D.C. 1923). “New York Courts have adopted the principles
articulated in Frye for assessing whether proposed expert testimony is generally accepted in the relevant scientific
community.” LeGrand v. Lee, No. 13-CV-05282 (PKC) (KHP), 2016 WL 7468195, at *1 n.2 (S.D.N.Y. Dec. 28,
2016), report and recommendation adopted, No. 13-CV-5282 (PKC), 2017 WL 837683 (S.D.N.Y. Mar. 2, 2017)
(citation omitted).
based on a scientific principle or procedure which has been sufficiently established to have gained
general acceptance in the particular field in which it belongs.” (D.E. # 1-10 at 16 (internal quotation
and citation omitted), 21.)
After reviewing Dr. Redlich’s qualifications and research, Justice Margulis qualified her
as an expert (Id. at 44.) The remainder of the hearing addressed whether her proposed testimony
conformed to what is generally accepted in the relevant scientific community, the Frye standard.
Dr. Redlich’s testimony about false confessions was based largely on scenarios in which a
suspect is interrogated or interviewed pursuant to the Reid Technique, the “most often cited”
method of police interrogation in the United States. (Id. at 48-50.) She later conceded that she did
not know if the New York Police Department employed the Reid Technique. (Id. at 91.)
Nevertheless, she testified that “all interrogations are psychologically oriented using principles
of . . . psychological influence of social influence,” which overlap with the Reid Technique
fundamentals. (Id. at 98.) Although she reviewed police reports, as well as Powell and Detective
Grinder’s Dunaway hearing testimony, (id. at 84), Dr. Redlich did not interview Powell before she
testified at the Frye hearing, (id. at 92.)
Dr. Redlich’s testimony addressed the dispositional and situational risk factors that might
lead to a false confession. In her words, “[d]ispositional risk factors are . . . things like the age of
the suspect, . . . whether or not the person has cognitive limitations, mental health problems, abuse
problems, things that would render a suspect vulnerable in the interrogation room.” (Id. at 57.)
Situational risk factors involve the interrogation tactics and their effect on the suspect. (Id.)
She focused on dispositional risk factors, such as mental illness, which she claimed makes
suspects more prone to confusion and concentration issues and less able to withstand interrogation
tactics. (Id. at 57-58.) She also testified that, although the evidence is not “entirely clear,” suspects
with depression and anxiety are more likely to give false confessions. (Id. at 59.) Similarly,
cognitive limitations such as “mental retardation [and] intellectual disabilities” can make suspects
more likely to have their will overborne by police or more eager to please people in positions of
authority. (Id. at 60-61.) Finally, Dr. Redlich testified that there is “some literature” “that people
with substance abuse problems are also at risk for false confessions.” (Id. at 61.) Substance
withdrawal likewise increases the likelihood that someone falsely confesses. (Id. at 61-62.)
Similarly, long-term drug use, according to Dr. Redlich, can serve as something to blame when
someone is falsely confessing. (Id. at 62.) As to situational risk factors, Dr. Redlich highlighted
that lengthy interrogations and lying to suspects can increase the likelihood of false confessions.
(Id. at 356-57.)
She also described “several studies” that showed confessions are “very weighty” and even
the “gold standard of evidence” in jurors’ minds. (Id. at 64.) She testified that a layperson would
be unlikely to understand why someone would admit to a crime they didn’t commit. (Id. at 357.)
Despite this testimony, Dr. Redlich acknowledged that she could not testify that Powell’s
confession was false, as that was a question for the jury. (Id. at 75.)
After ordering briefing on the matter (id. at 292-93), Justice Margulis ruled that Dr. Redlich
could not testify at trial, (id. at 362.) He relied on People v. Bedessie, 19 N.Y.3d 147 (2012), in
which the New York Court of Appeals discussed the factors to consider when deciding whether to
allow an expert to testify on false confessions. (Id. at 359.) He ruled that Powell failed to meet his
burden of establishing that Dr. Redlich’s testimony was scientifically reliable because research
differed “as to why and which tactics present a danger of obtaining” false confessions. (Id.) He
could not conclude that there was “reliable scientific data” or “consensus in the relevant scientific
community.” (Id. at 360.) Justice Margulis found it problematic that Dr. Redlich had “no personal
knowledge of the circumstances under which this particular defendant confessed,” specifically that
she was unaware of the type of questioning that New York City detectives used and that she
couldn’t establish that Powell’s mental illness or “intellectual deficits” contributed to a false
confession. (Id. at 360-61.)
II. Trial and Conviction
Powell went on trial on a single count of first-degree robbery under New York Penal Law
§ 160.15(3) beginning on July 21, 2014 before Justice Margulis of the Queens County Supreme
Court. (D.E. ## 1 at 1; 14-1 at 313.)
A. State’s Case
The State’s case consisted primarily of Yan’s account of the robbery and Detective
Grinder’s account of the interrogation of Powell.
Yan testified that, in the afternoon of February 25, 2010, she went grocery shopping at a
store near her home in Queens. (D.E. # 14-3 (“T.”) at 644:20-645:3.)5 On the way out of the store,
the Defendant, approximately five feet away from her, asked her for a light. (Id. at 645:16-17,
646:19-21.) Yan noticed that he was a “tall black male” in a big grey jacket. (Id. at 647:11-14.)
She believed he was in his mid-thirties. (Id. at 687:20.) A few minutes later, she went into the
elevator of her building, and the Defendant followed her inside. (Id. at 650:2-4.) She recognized
him as the same man who asked for a light outside the supermarket. (Id. at 651:1-3.) He was
wearing a hat underneath a hood. (Id. at 651:14-21.) She saw a small blade in his right hand. (Id.
at 652:17.) Once the elevator door closed, he lunged at her and pinned her against the wall, holding
the blade near her face. (Id. at 653:11-13.) He threatened to kill her if she didn’t give him money.
5 The trial transcript appears in docket entries 14-1 through 14-5. For ease of reference, I cite to the transcript
in the format (T. #:#), where the # symbol refers to page and line numbers. All other citations to non-transcript docket
entries cite to the page of the docket, not to internal pagination.
(Id. at 653:15-16.) Yan screamed for help, but Powell put his finger down her throat. (Id. at 656:3-
5.) Yan gave Powell her mother’s EBT card and told him a PIN. (Id. at 656:23-657:3, 658:8-9.)
After he left the elevator with the EBT card, she noticed that he was carrying an umbrella. (Id. at
662:10.)
She identified Powell as the robber from the elevator surveillance footage, which was
played for the jury. (Id. at 668:1-14.) After the robbery, Yan called 911. (Id. at 670:7-9.) She
confirmed her description of the robber—a tall, Black man wearing a hat and a grey, plaid, woolen
jacket, (id. at 670:16-24, 701:23)—that she provided in her 911 call, which was played for the
jury, (id. at 675:5-24.) She estimated that he was about six feet tall with a skinny to medium build.
(Id. at 688:11-21.)
After Yan reported the robbery to the police, she was informed that someone had attempted
to use her mother’s EBT card at a local deli. (Id. at 678:14-24.) She called Detective Joseph Grinder
and shared this information with him. (Id. at 679:6-11.) On March 2nd, Yan went to the 114th
Precinct to view a lineup. (Id. at 680:15-21.) She selected Powell in the lineup, photos of which
were admitted into evidence. (Id. at 682:25-684:21.)
Detective Grinder testified to his investigation of the case and his two-day interrogation of
Powell. Detective Grinder began interrogating Powell on March 1st around 6:30 pm. (Id. at
757:16.) Detective Grinder testified that he mirandized Powell at the start of their interaction, (id.
at 758:13-15), and that Powell initialed a Miranda card, (id. at 761:17-20.) When Detective Grinder
brought up that he was investigating robberies, Powell became “agitated” and said he had not
committed any robberies. (Id. at 777:15-19.) Later in the evening, Detective Grinder testified that
Powell was not in distress but requested his medications for the first time. (Id. at 780:12-15,
781:12-15.) Around 11:05 PM, Detective Grinder obtained Powell’s medications from Powell’s
friend. (Id. 782:4-22.) Detective Grinder testified that he did not recall whether he gave Powell his
medication, nor did he document as much. (Id. at 872:17, 875:24-876:1.) Because it was too late
in the day to conduct a lineup, Detective Grinder then took Powell to Central Booking around
11:50 pm. (Id. at 779:10-17, 783:17.)
The next morning, Detective Grinder brought him to the 114th Precinct, (id. at 798:20),
and gave him coffee and a bagel, (id. at 800:2-4.) Detective Grinder asked if Powell was ready to
stand in a lineup. (Id. at 802:22.) At that point, Powell admitted to the robbery, claiming that he
was “messed up on drugs” and followed a woman into her building. (Id. at 803:2-4.) Powell
indicated a desire to commit his admission to writing. (Id. at 804:2-5). He wrote the following
statement, which was admitted into evidence:
Howard Powell was using drugs for two weeks and was doing really bad. I did a robbery
and I am very sorry. Please forgive me. I want to help NYPD, but only you can help me
with this. I was really messed up on drugs and I am sorry if I’ve hurt anyone.
(Id. 805:5-19, 809:12-16.)6 Powell refused to sign the typed statement. (Id. at 805:2-5.)
After he conducted the lineup, Detective Grinder informed Powell that he had been selected
as the robber. (Id. at 820.) According to Detective Grinder, Powell then expressed a desire to give
“his side of the story.” (Id. at 821:1-3.) At trial, Detective Grinder summarized Powell’s verbal
admission to the Yan robbery as follows:
[H]e stated that he followed a girl into her building. He stated that followed -- his words,
not mine -- an oriental girl into her building. That he had went into the elevator with her.
He stated, that one gave me a fight for my money. That all he got from her was an EBT
card or card with no numbers on it. . . . He said he probably had a razor knife on him
6 Powell’s original, handwritten statement was redacted to remove reference to the Torres robbery for the
jury. The original read as follows:
Howard Powell, Was using drugs for two weeks and was doing really bad. I did a few robbery and I am very
sorry please forgive me I want to help N.Y.P.D. but only you can help me with this, I was really MESSED
UP on DRUGS and I am sorry if I’ve hurt any one.
(D.E. # 1-9 at 6 (emphasis in the original).)
because he usually carries one. He said the projects are dangerous. . . . He said he didn’t
pull it out, he didn’t use it.
(Id. at 821:6-822:2.) Powell asked Detective Grinder to type these statements for him because he
did not write well. (Id. 822:20-22.) Powell then reviewed the typed statement and signed it. (Id. at
824:14-20.) The typed report was admitted into evidence at trial. (Id. 825:8.)7 Detective Grinder
testified that Powell did not appear to be in physical or mental distress during these discussions,
and he bought Powell lunch before he made his second statement. (Id. at 835:22-836:11.)
The State’s case included testimony from the cashier at the deli, who was present when
Powell attempted to use Yan’s EBT card. (Id. at 586:1-591:19.) The cashier was unable to identify
the Defendant at trial. (Id.) During the cashier’s testimony, the State introduced the surveillance
video from the deli. (Id. at 588:21-25.) The State also called an assistant superintendent of the
housing complex where the robberies occurred, (id. at 600-606), and the State played for the jury
the surveillance video from the elevator where Yan was robbed, (id. at 603:17-18.) The State also
elicited testimony from an arresting officer, (id. at 613:1-12.), and the Assistant District Attorney
who conducted the lineup, (id. at 987:8-1000:5.)
B. Defense Case
The Defense case consisted principally of the Defendant’s testimony. Powell denied
committing the Yan robbery. (Id. at 1064:23-24.) He provided an account of his interrogation that
7 The typed report read as follows:
Sometime toward the end of last week I followed this oriental girl from the 40 side of 10 Street into
her building. She was carrying groceries. I went into the building and then into the elevator with her
where I robbed her. This one gave me a fight for my money and tried to push me away. I kept
pushing her but I didn’t try to hurt her. I usually keep a razor knife in my pocket but didn’t think I
had time to get it out. The only thing I got from her was an EBT card with no numbers on it. I was
using drugs for two weeks and was doing really bad. I did a few robberies and I am very sorry.
Please forgive me. I want to help the NYPD but only you can help me with this. I was really messed
up on drugs and I am sorry if I’ve hurt anyone.
(D.E. # 1-9 at 7.)
differed substantially from that of Detective Grinder. Powell testified that he was not read his rights
or mirandized until March 2nd, after his two confessions already occurred. (Id. at 1060:1-5,
1072:9-18.) He also recounted that he had been using crack cocaine and heroin most of the day he
was arrested. (Id. at 1058:5-8.) According to Powell, he told Detective Grinder that he needed his
medications because he was experiencing “nervousness” about being arrested. (Id. at 1061:1-6.)
Powell testified that, in the evening, he had a seizure and urinated on himself and the floor, (id. at
1062:12-25), and that Detective Grinder yelled at him for urinating, (id.)
Powell said that he was not given his medications, despite asking for them two more times
(Id. at 1062:2-4.) He testified that he was told that if he kept asking and not cooperating, he
wouldn’t go before a judge for four or five days. (Id.) According to Powell, after Detective Grinder
returned with the medication, he placed it at the end of the interrogation room table and told Powell
he could have it in exchange for his cooperation with the investigation. (Id. at 1064:7-10.) Powell
maintained that he was never given his medication for the duration of the interrogation. (Id. at
1067:23.)
Powell claimed that he did not eat at all on March 1st after he was arrested, (id. at 1061:24.),
nor was he given breakfast or lunch on March 2nd, as Detective Grinder had testified, (id. at
1065:24-1066:1.) He feared he would have another seizure. (Id. at 1066:22-24.) During this time,
Powell was handcuffed to the wall—a fact that Powell and Detective Grinder both confirmed. (Id.
at 800:7-21.)
Powell testified that he only made the first, general statement admitting to the robberies to
“try to please Detective Grinder so I could get my medication and some food.” (Id. at 1068:25-
1069:1.) Powell disputed ever making the second statement. (Id. at 1070:1-3.)
Powell also testified about his struggles with mental health and substance abuse. Powell
explained that he was in special education through the first day of ninth grade, when he dropped
out of school. (Id. at 1049:1-15.) He learned to read at age 36. (Id. at 1050:1-2.) He suffered from
depression for which he sought treatment (See id. at 1051:16-24.) In addition to depression, Powell
said he had been diagnosed with schizophrenia, an “emotional disorder,” and panic attacks, for
which he was medicated. (Id. at 1054:5-6, 1056:13-19.) Powell also claimed he further suffered
from seizures, diabetes, hypertension, and asthma, for which he is on medication. (Id. at 1054:13-
1055:7; see also D.E. # 1 at 6-7.)
C. Rebuttal
The State called a supervising officer who testified that no one had a seizure or urinated in
the Precinct on the night Powell was there, (T. 1303:21-1305:11), an officer from Central Booking
who testified that Powell would have eaten there, (see, e.g., id. at 1312:8-13), and a New York
Department of Corrections Investigator who laid the foundation to introduce Powell’s recorded
phone calls while incarcerated at Rikers Island, (id. at 1353:5-1356:16.) The State also called a
Detective, who was present for Powell’s interrogation and largely corroborated Detective
Grinder’s account. (See, e.g., id. at 1365:9-18.)
D. Summations
The Defense’s summation primarily attacked the reliability of Powell’s confession and
Yan’s eyewitness identification of Powell. Defense counsel criticized the lack of documentation
of what occurred during Powell’s interrogation and encouraged the jurors to weigh Powell’s
account heavily. (Id. at 1477:1-1479:17.) He emphasized how Powell’s seizure, (id. at 1480), his
mental health issues, (id. at 1485), drug use, (id. at 1488), and lack of medication, (id. at 1502),
and food, (id. at 1504), affected the voluntariness of his statement. Defense counsel also challenged
Yan’s identification, emphasizing that she made a cross-racial identification, (id. at 1525), in a
highly traumatic moment, (id. at 1526), both factors which could undermine the reliability of the
identification, (id. at 1529.)
The State’s summation emphasized the length of time that Yan had to observe the
Defendant in the elevator, which made her identification of him more reliable. (See, e.g., id. at
1552.) The State’s summation also highlighted that Yan had an additional opportunity to identify
the Defendant outside of the grocery store before the robbery, (id. at 1561,) and reiterated that her
description of the robber matched the person in the surveillance videos, (id. at 1571-76), and that
she eventually picked Powell out of a lineup, (id. at 1580.) The summation also attempted to
undermine Powell’s narrative about how he came to confess by restating that he would have been
fed and given medicine per Department policy established at trial. (See, e.g., id. at 1599-1610.)
E. Jury Instructions
As relevant to this habeas petition, Justice Margulis charged the jury that they must find
the Defendant’s statement voluntary. (Id. at 1644:13-17 (“[E]ven if you find that defendant made
a statement, you still may not consider it as evidence in the case unless the People have proven
beyond a reasonable doubt that the defendant made the statement voluntarily.”).) He encouraged
the jury to consider the “defendant’s age, intelligence and physical and mental condition, and the
conduct of the police during their contact with the defendant.” (Id. at 1647:7-10.) Justice Margulis
also charged the jury on evaluating the truthfulness of an eyewitness identification and specifically
instructed the jury to consider the “mental, physical, and emotional state of the witness before,
during, and after the observation” and “whether there is a difference in race between the defendant
and witness who identified the defendant.” (Id. at 1637:17-1640:12.)
F. Conviction
Powell was convicted on November 6, 2014. (D.E. # 1 at 1.) In view of Powell’s substantial
criminal record, Justice Margulis sentenced Powell to a prison term of twenty-five years to life.
Powell pled guilty to the severed robbery count (the Torres robbery) and received a concurrent
sentence of twenty years, conditioned on an assurance that if the trial conviction was reversed, his
plea conviction would be too. (Id. at 4.)
III. Direct Appeal
a. Appellate Division
Powell appealed to the Appellate Division, Second Department. In a counseled brief, he
argued that (1) the preclusion of Dr. Redlich’s testimony about false confessions violated his
federal constitutional right to present a defense, and (2) that the preclusion also violated various
state evidentiary rules. (Id. at 27-28.)
On June 22, 2018, the Appellate Division affirmed the judgment of conviction. (D.E. # 1-
9 at 4.) Without directly addressing Powell’s federal claim, the court found that the lower court
properly exercised its discretion in precluding Dr. Redlich’s testimony under Bedessie, 19 N.Y.3d
147 (2012), because Powell “failed to establish that his proffered expert testimony was relevant to
the specific circumstances of this case.” (Id.)
b. Court of Appeals
The New York Court of Appeals (“the Court”) granted leave to appeal on April 26, 2019.
(Id. at 3.) On November 18, 2021, the Court published its opinion affirming the trial court’s
evidentiary decisions. (D.E. # 1-2 at 2.)
i. Preclusion of False-Confession Expert Testimony
The Court found no abuse of discretion as a matter of law in precluding Dr. Redlich’s
testimony. (Id. at 2.) In addition to applying the Frye standard to decide whether methodologies
and hypotheses are generally accepted in a relevant scientific community, the opinion held that the
trial court must also apply Bedessie to “determine whether the same proffered testimony was
‘relevant to the defendant and interrogation before the court.’” (Id. at 16 (citing Bedessie, 19
N.Y.3d at 161).) Expert testimony on false confessions, the Court held, “is meant to be used as an
informational tool to educate the jury on the causal connection between relevant factors and false
confessions outside their ken” but must be delivered “without opining on the particular facts of the
case.” (Id. at 17.)
Because Dr. Redlich could not establish that her expertise on police interrogations related
to the interrogation that occurred in this case, the Court found that the trial court was
“well within its province” to preclude her testimony. (Id. at 20.) Specifically, she had “difficulty”
explaining how “her testimony was at all relevant to the circumstances presented by defendant’s
interrogation.” (Id. at 18.) On this point, the Court found her reliance on the Reid Method
problematic, since she could not be sure that method was used in this case. (Id. at 19.) Because her
testimony was not anchored to the interrogation at issue, it rendered her testimony general such
that some of it “required no explanation to a jury.” (Id.) General testimony about psychological
effects of interrogation tactics, the Court found, is “entirely consistent with the commonsense
ability of the jury.” (Id.)
The Court further found that Dr. Redlich’s testimony about Powell’s dispositional risk
factors that could have made him more likely to falsely confess was insufficiently tethered to the
facts of the case. (Id. at 21-22 (“[D]efendant’s substance abuse was not linked to the circumstances
of the confession, as there was no evidence that he was either intoxicated or in withdrawal at the
time he was questioned.”).) As to the link between mental illness and false confessions, the Court
emphasized that Dr. Redlich herself admitted the science was not yet firm. (Id. at 22.) In sum, the
Court held that:
The trial court properly recognized that proving false confessions occur, is not the
equivalent of accepting Dr. Redlich’s broad, unmoored testimony on the science of false
confessions and given her difficulty in explaining the external validity of the studies, her
imprecise testimony was insufficient to sustain the burden of establishing general
acceptance of the psychological principles she was advocating.
(Id. at 23.)
ii. Preclusion of Eyewitness-Identification Expert Testimony
The Court held that there was no abuse of discretion in precluding the eyewitness
identification expert. (Id. at 25.) The Court found that the lower court properly followed the
standard articulated in LeGrand, 8 N.Y.3d at 457, since the case did not turn solely on the accuracy
of Yan’s identification but was corroborated by Powell’s confessions and the surveillance videos.
(Id.)
iii. Dissent
Judge Jenny Rivera issued a dissent for the three-judge minority. She articulated the issue
on appeal as “whether the denial of defendant’s motion to present expert testimony at trial on false
confessions or on cross-racial identifications violated his right to present a defense relating to his
innocence.” (Id. at 26.) Judge Rivera concluded that excluding Dr. Redlich’s testimony on false
confessions was an abuse of discretion, because the lower court’s analysis exceeded the scope of
Bedessie and Frye by “question[ing the] foundation, the fit between the proffered testimony and
the facts of the case, and the methodologies used by social sciences researchers.” (Id. at 27.) The
lower court should have ended its inquiry, she argued, at whether the science of false confessions
was generally accepted in the relevant scientific community. (Id.)
Judge Rivera also opined that it was an abuse of discretion for the trial court to preclude
Dr. Franklin’s testimony about eyewitness identifications. (Id. at 66-67.) She concluded that this
was an appropriate case, under LeGrand, to admit such testimony. (Id.) She found the evidence
that the majority described as corroborating to be unconvincing, especially because the
surveillance videos did not clearly depict the robber’s face. (Id. at 69). She argued it was improper
for the trial court to consider the corroborative effect of “hotly-contested evidence” before trial
and that such weighing of credibility and factfinding was for the jury—who would have benefited
from learning about how cross-racial and high-stress identifications can be unreliable. (Id. at 70-
71.)
STANDARD OF REVIEW
Certain well-settled principles govern this case. First, “[f]ederal habeas corpus relief does
not lie for errors of state law.” Lewis v. Jeffers, 497 U.S. 764, 780 (1990). Second, where the state
court decided the constitutional issue on the merits, the federal court’s authority to review the
decision is limited under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).
A federal court may grant habeas relief to a state prisoner only where the state-court decision was
“was contrary to, or involved an unreasonable application of,” clearly established federal law as
determined by the Supreme Court. 28 U.S.C. § 2254(d)(1).
A state-court decision is “contrary to” clearly established federal law if it (1) “arrives at a
conclusion opposite to that reached by [the Supreme Court] on a question of law,” or (2) “decides
a case differently than the [Supreme Court] has on a set of materially indistinguishable facts.”
Williams v. Taylor, 529 U.S. 362, 413 (2000). “An unreasonable application of” federal law occurs
if the state court’s “application of clearly established federal law was objectively unreasonable,”
Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000) (quoting Williams, 529 U.S. at 409), or if it
“fails to extend a principle of clearly established law ‘to situations which that principle should
have, in reason, governed,’” Tueros v. Greiner, 343 F.3d 587, 591 (2d Cir. 2003) (quoting
Kennaugh v. Miller, 289 F.3d 36, 45 (2d Cir. 2002)). “[A] state court’s ruling must be ‘so lacking
in justification that there was an error well understood and comprehended in existing law beyond
any possibility for fairminded disagreement.’” Shoop v. Hill, 586 U.S. 45, 48 (2019) (quoting
Harrington v. Richter, 562 U.S. 86, 103 (2011)).
Here, Powell first challenges whether the AEDPA standard of review governs. He contends
that the appropriate standard is de novo review because the courts below failed to reach the merits
of his federal constitutional claim. (D.E. # 1 at 33-35.)
The Supreme Court has held that “[w]hen a state court rejects a federal claim without
expressly addressing that claim, a federal habeas court must presume that the federal claim was
adjudicated on the merits—but that presumption can in some limited circumstances be rebutted.”
Johnson v. Williams, 568 U.S. 289, 301 (2013). There, the Court enunciated several “rare cases”
in which the presumption of a merits adjudication may be rebutted, including (1) where the state
law is less protective or “quite different” than the federal standard; (2) where federal precedent or
the constitutional provision at issue were mentioned in passing in the petition; (3) where the state
courts may have accidentally overlooked the federal claims; and (4) where the petitioner fails to
exhaust state remedies. Id. at 301-303. None of these factors are present here.
First, New York’s evidentiary laws are not “quite different” or less protective than the
federal constitutional rights asserted. The second and third circumstances likewise do not apply
here. Powell raised his constitutional claims centrally at every stage of this litigation, and it cannot
be said he buried them in a footnote or string cite. (See, e.g., D.E. # 1-9 at 464, 468-69.) He does
not adduce any evidence that the Court of Appeals overlooked the federal claims he so squarely
presented. That the constitutional claims were decided is also evidenced by the dissent. That
dissent explicitly identifies the issue: “At issue on appeal is whether the denial of defendant’s
motion to present expert testimony . . . violated his right to present a defense relating to his
innocence.” (D.E. # 1-2 at 26.) The majority opinion does not dispute the dissent’s statement of
the issue.
Finally, the fourth factor does not apply, as Powell has exhausted state remedies by
presenting his constitutional claims to both the Appellate Division and the Court of Appeals. (See
D.E. # 9 at 17-18.) As none of the factors that could rebut the Williams presumption apply here, I
review the Court of Appeals decisions below under AEDPA deference, rather than de novo review.
In applying AEDPA deference on habeas review, I review the “last reasoned decision” by
the state court. Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991); Jones, 229 F.3d at 118. Here, the
last reasoned decision was that of the Court of Appeals.
DISCUSSION
Powell raises two grounds that rest on the same constitutional claim: that the trial court’s
preclusion of expert testimony on both false confessions and eyewitness identification violated his
constitutional right to put on a complete defense.
IV. Constitutional Right to a Complete Defense
Powell properly asserts a recognized federal right. The right to present a complete defense
“is based on clearly established federal law as determined by the Supreme Court.” Scrimo v. Lee,
935 F.3d 103, 112 (2d Cir. 2019); Crane v. Kentucky, 476 U.S. 683, 690 (1986) (“[T]he
Constitution guarantees criminal defendants a meaningful opportunity to present a complete
defense.”) (internal quotation omitted). The opportunity to call witnesses for that defense is a
critical facet of the constitutional right: “Few rights are more fundamental than that of an accused
to present witnesses in his own defense.” Chambers v. Mississippi, 410 U.S. 284, 302 (1973);
California v. Trombetta, 467 U.S. 479, 486 n.6 (1984) (“[C]riminal defendants are entitled to call
witnesses on their own behalf . . . .”). This right is “secured by both the Compulsory Process Clause
of the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment.” Washington
v. Schriver, 255 F.3d 45, 56 (2d Cir. 2001) (citations omitted).
“[T]he right to present relevant testimony is not without limitation,” and “may, in
appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.”
Rock v. Arkansas, 483 U.S. 44, 55 (1987) (internal quotation and citation omitted). Those
legitimate interests include “evidentiary and procedural rules ‘designed to assure both fairness and
reliability in the ascertainment of guilt and innocence.’” Scrimo, 935 F.3d at 112 (quoting
Chambers, 410 U.S. at 302); see also Taylor v. Illinois, 484 U.S. 400, 410 (1988) (“The accused
does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise
inadmissible under standard rules of evidence.”).
As an initial matter, “[t]here is no Supreme Court case recognizing a right to introduce
[false-confession expert testimony] evidence.” Mutterperl v. Griffin, No. 13-CV-6028 (RJD),
2019 WL 3859400, at *9 (E.D.N.Y. Aug. 16, 2019). There is likewise no Supreme Court case
recognizing such a right for eyewitness identification expert testimony. Therefore, the state-court
decision was not “contrary to” clearly established Supreme Court law, and my analysis is
constrained to whether the state-court decision involved an “unreasonable application” of clearly
established Supreme Court law or whether it “fails to extend a principle of clearly established law
“to situations which that principle should have in reason governed.” Tueros, 343 F.3d at 591
(quoting Kennaugh, 289 F.3d at 45).
V. There Was No Unreasonable Application of Supreme Court Law
“[W]hen a trial court’s evidentiary exclusions take on constitutional dimensions . . . ‘[the
court] must examine the stated reasons for the exclusion and inquire into possible state evidentiary
law errors that may have deprived the petitioner of a fair trial.’” Scrimo, 935 F.3d at 114-15
(quoting Schriver, 255 F.3d at 57); see also Wade v. Mantello, 333 F.3d 51, 59 (2d Cir. 2003).
Examining whether there were “state evidentiary law errors at the trial level” assists the reviewing
court in “ascertain[ing] whether the [Court of Appeals] acted within the limits of what is
objectively reasonable.” Hawkins v. Costello, 460 F.3d 238, 244 (2d Cir. 2006), cert. denied, 549
U.S. 1215 (2007) (first alteration in original) (quoting Jones, 229 F.3d at 120); Animashaun v.
New York, No. 21-CV-2597 (KAM), 2024 WL 4266003, at *26 (E.D.N.Y. Sept. 23, 2024).
“If potentially exculpatory evidence was erroneously excluded, we must look to whether
the omitted evidence evaluated in the context of the entire record creates a reasonable doubt that
did not otherwise exist.” Hawkins, 460 F.3d at 244 (cleaned up); see also Wade, 333 F.3d at 59
(applying “[t]his test . . . post-AEDPA”). But “if the evidentiary ruling was correct pursuant to a
state evidentiary rule, our inquiry is more limited. We consider whether the evidentiary rule is
arbitrary or disproportionate to the purposes it is designed to serve.” Hawkins, 460 F.3d at 244
(cleaned up). A state evidentiary rule is “unconstitutionally arbitrary or disproportionate only
where it has infringed upon a weighty interest of the accused.” United States v. Scheffer, 523 U.S.
303, 308 (1998).
There is a high bar to finding an unreasonable application of federal law in this context.
“Only rarely have we held that the right to present a complete defense was violated by the
exclusion of defense evidence under a state rule of evidence.” Nevada v. Jackson, 569 U.S. 505,
509 (2013); Vega v. Walsh, 669 F.3d 123, 126 (2d Cir. 2012) (“[S]tate trial court evidentiary
rulings generally are not a basis for habeas relief.”). That is so because ‘habeas corpus relief does
not lie for errors of state law, . . . and that necessarily includes erroneous evidentiary rulings.”
Hawkins, 460 F.3d at 244 (internal quotations and citations omitted).
A. There Were No State Law Evidentiary Errors
i. False-Confessions Expert
The Court of Appeals’ decision in Bedessie is the controlling New York authority as to
when and whether to admit expert testimony on false confessions. See 19 N.Y.3d 147. That case
observes that “in a proper case expert testimony on the phenomenon of false confessions should
be admitted,” id. at 149, but notes that admissibility of expert testimony remains a matter of the
trial court’s discretion, id. at 156. Bedessie emphasizes that an “expert may not testify as to
whether a particular defendant’s confession was or was not reliable, the expert’s proffer must be
relevant to the defendant and interrogation before the court.” Id. at 161.
The Court of Appeals’ decision here hewed closely to Bedessie’s controlling standard.
The Court found for a number of reasons that the trial court acted within its discretion by
disallowing Dr. Redlich’s testimony. (D.E. # 1-2 at 2, 15, 24.) The Court emphasized that, in
addition to meeting the requirements of Frye, false-confession testimony must also be relevant to
the particular defendant and interrogation. (Id. at 15.) Indeed, the Court clarified that the
Bedessie inquiry is in addition to, not part of, the Frye inquiry. (Id. at 24 (“[A]s we held in
Bedessie, the trial court may not abdicate its responsibility to determine the relevancy of the
proffered educational testimony to the particulars of the individual case, to wit, defendant and the
interrogation before the court.”).)
The Court’s holding that it was not an abuse of discretion for the trial court to find that
Dr. Redlich’s proposed testimony was not relevant to Powell’s interrogation was entirely
reasonable. Powell testified that he made the first statement confessing to the robberies to “try to
please Detective Grinder so [he] could get [his] medication and some food.” (T. 1068:25-
1069:1.) If the interrogating officers did indeed withhold food and medication, that would be
quite distinct from the type of psychological techniques that Dr. Redlich testified about at her
Frye hearing. In the hearing, she named “situational risk factors,” including drawing out an
interrogation, lying to suspects, and leaking information about the case to them, that might lead a
suspect to falsely confess. (D.E. # 1-10 at 62-64.) But there was no evidence that those risk
factors were circumstances present in Powell’s interrogation. Instead, Dr. Redlich testified about
the general phenomenon of false confessions when officers employ the Reid Technique or
something similar, claiming that any technique would be “psychologically based.” (Id. at 131.)
But without proof of what technique the detectives who interrogated Powell actually used, it was
reasonable to conclude that her testimony about the psychological factors that risk eliciting false
confessions was not relevant here. As such, the Court did not err in concluding that her testimony
about “situational risk factors” was in the main not relevant to Powell’s first statement. (See D.E.
# 1-2 at 18-20.)
As to his second statement, the Court rightly highlighted that Powell denied making this
statement. (T. 1070:1-3.) Any “expert testimony regarding dispositional and situational factors
that create a risk of a false confession” therefore had “no relevance to the oral or written version
of that statement.” (D.E. # 1-2 at 18.)
It was also reasonable for the Court to conclude that it was not abuse of discretion for the
trial court to find that Dr. Redlich’s testimony would not have aided the jury. ‘“It is for the trial
court in the first instance to determine when jurors are able to draw conclusions from the
evidence based on their day-to-day experience, their common observation and their knowledge,
and when they would be benefited by the specialized knowledge of an expert witness.’” People
v. Lee, 96 N.Y.2d 157, 162 (2001) (quoting People v. Cronin, 60 N.Y.2d 430, 433 (1983)). The
Court correctly concluded that assault8 and withholding of food and medication—as Powell
alleged occurred—is “outright coercion” that a jury well understands could produce a false
confession. (D.E. # 1-2 at 18.) Because jurors could have drawn on their day-to-day experiences
to determine whether that outright coercion occurred and whether it induced a false confession
from Powell, it was not unreasonable to conclude that Dr. Redlich’s testimony would not have
helped the jury reach the conclusion that Powell falsely confessed.
Finally, the trial court did not err by expressing reservations about studies on which Dr.
Redlich relied in reaching her conclusions about false confessions. (See D.E. # 1-10 at 353-54.)
Dr. Redlich admitted that one study, the Alt Key Paradigm, on which she relied for her own
research, has “been criticized and is really no longer used,” (id. at 189), and the other, the
Cheating Paradigm, induces study subjects to commit the bad act and then self-report whether
they did that act, (see id. at 176-77, 180-81.) Based on Dr. Redlich’s own hearing testimony as to
the problematic application of these studies to false confessions, it was within the trial court’s
discretion to preclude her from testifying at trial. Therefore, it was not without justification that
the Court found that testimony based on such studies posed a risk of confusing or misleading the
jury. (D.E. # 1-2 at 22-23.)
In applying AEDPA deference, it is not my role to question how the Court of Appeals
construes its own precedent. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the
province of a federal habeas court to reexamine state-court determinations on state-law
8 In a pre-trial hearing, Petitioner testified that Detective Grinder smacked him once immediately after the
seizure and another “four or five times” during the two-day interrogation. (D.E. # 1-9 at 378-79.)
questions.”). I find that no state evidentiary errors occurred with respect to the preclusion of Dr.
Redlich’s testimony. Certainly, Powell has not shown that the exclusion of this testimony was
“so lacking in justification that there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.” Shoop, 586 U.S. at 48 (internal
quotation omitted).
ii. Eyewitness-Identification Expert
LeGrand is the New York Court of Appeals’ decision that controls when and whether to
admit eyewitness-identification expert testimony. See 8 N.Y.3d at 456. That case holds “that expert
testimony regarding the factors that affect the accuracy of eyewitness identifications, in the
appropriate case, may be admissible in the exercise of a court’s discretion” and that “there are
cases in which it would be an abuse of a court’s discretion to exclude expert testimony on the
reliability of eyewitness identifications.” Id. Where a “case turned solely on the accuracy of the
witnesses’ identification,” LeGrand instructs that it would be an abuse of discretion to preclude
expert testimony on eyewitness identification accuracy. Id. at 457. By contrast, when there exists
“corroborating evidence connecting [the] defendant to the commission of the crime charged,” that
testimony may be admissible, subject to the court’s discretion. Cf. id.
Again, the Court of Appeals did not err when it found Justice Margulis was acting within
his discretion by disallowing Dr. Franklin’s testimony. (D.E. # 1-3 at 24-25.) The Court was correct
to note that the lower court clearly grasped the distinction between cases with and without
corroborating evidence that was drawn in LeGrand. Justice Margulis accordingly admitted Dr.
Franklin’s testimony in the Torres case because that case turned only on Torres’s identification of
Powell, but precluded it in the Yan case, where there was evidence corroborating her identification
of Powell. (D.E. # 1-10 at 12, 14.)
Powell argues that in reaching this conclusion, the trial court, and later, Court of Appeals
“greatly overstated the corroboration provided by other evidence,” “making improper assumptions
about the relative weight of evidence.” (D.E. # 1 at 61 (cleaned up).) Powell mischaracterizes the
state-court opinions. In relying on LeGrand, the courts did not impose “a strict two-part test that
initially evaluates the strength of the corroborating evidence,” but instead properly “read [the case]
as enumerating factors for trial courts to consider in determining whether expert testimony on eye-
witness identification would aid a lay jury in reaching a verdict.” People v. McCullough, 27 N.Y.3d
1158, 1161 (2016) (internal quotations omitted). Justice Margulis merely noted that Powell’s
statements admitting to the Yan robbery were “admissible at trial” and found that the surveillance
videos “provide[d] additional support for the People’s case.” (D.E. # 1-10 at 14 (internal quotations
omitted).) These pieces of evidence, he noted, were “sufficient” corroborating evidence “to obviate
the need for expert testimony.” (Id.) Justice Margulis did not evaluate the strength of the evidence,
rather, he correctly determined that there was sufficient evidence corroborating Yan’s
identification to render Dr. Franklin’s testimony superfluous.
The Court of Appeals likewise properly found there was enough evidence, without Dr.
Franklin’s testimony, for the jury reach a verdict. The Court found that Yan’s identification “was
corroborated by the surveillance video and defendant’s statements.” (D.E. # 1-2 at 25.) Discussing
the elevator video, the Court noted: “Although the perpetrator’s face is not clearly visible . . . the
film depicts a tall man wearing a hooded, dark-colored coat and hat, carrying a large black umbrella
with a curved handle.” (Id. at 3.) Discussing the deli footage, the Court described the store as
“well-lit” and highlighted that “portions of the man’s face” were visible from “multiple angles.”
(Id.)
I have reviewed the lineup and video surveillance footage. The Court’s conclusion that
the two surveillance videos corroborate Yan’s identification is well founded. The EBT card user
in the surveillance footage from the deli—which contains a view of the user’s face—bears a
marked resemblance to the picture of Powell in the lineup. Although the elevator video
surveillance is less clear, the robber is carrying the same umbrella and is dressed identically to
the person using the stolen EBT card in the deli moments later. Powell’s admissions provided
further corroboration for purposes of LeGrand. “Since there was sufficient corroborating
evidence connecting [Powell] to the crime, and there was nothing an expert could have added
that would have aided the jury, the Court cannot say that the trial court’s evidentiary ruling was
erroneous as a matter of New York law.” Redding v. New York State Dep’t of Corrs., No. 17-
CV-7075 (CS) (JCM), 2020 WL 614835, at *16 (S.D.N.Y. Feb. 10, 2020).
I do not find that the state courts committed any evidentiary errors by precluding Dr.
Franklin from testifying. More to the point, Powell has failed to show that the exclusion of Dr.
Franklin’s testimony was “so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement.” Shoop, 586
U.S. at 48 (internal quotation omitted).
B. The Omitted Evidence Would Not Have Created a Reasonable Doubt That Did
Not Otherwise Exist
Even if I agreed with Powell that the state courts erred by precluding the two expert
witnesses, any error was harmless. To demonstrate that a defendant’s right to present a defense
was violated, the evidence erroneously excluded, when “evaluated in the context of the entire
record[, must] create[] a reasonable doubt that did not otherwise exist.” Justice v. Hoke, 90 F.3d
43, 47 (2d Cir. 1996) (cleaned up). That is not the case here. Neither expert witness’s testimony
would have created a reasonable doubt that did not otherwise exist. That is so because of the
strength of the evidence against Powell and because the proposed expert witness testimony would
have only duplicated the points already made to the jury in testimony, cross-examination,
summations, and jury instructions.
i. False-Confessions Expert
The first expert witness, Dr. Redlich would have testified to the situational and
dispositional factors that led Powell to confess to a crime he allegedly did not commit. (See supra
Section I.D.) But there was evidence adduced at trial that contradicted the false confession theory.
Specifically, Powell’s written statement contained specific details about the robbery that
eventually matched Yan’s account at trial, such as her race, that she was carrying groceries, the
location of the robbery, the weapon he used, and the fact that he obtained an EBT card without
numbers on it. (See supra n.6.) That he knew this information undermined his theory that he
confessed to a crime he did not commit.
Moreover, Powell “fully utilized the meaningful opportunities afforded him to present the
circumstances under which he made his statements and to challenge their voluntariness, both in a
pre-trial Huntley hearing, . . . and at trial through [his own testimony about his statements,] cross-
examination of the state’s witnesses and a vigorous summation by counsel.” See Mutterperl, 2019
WL 3859400, at *9. Before trial, the court conducting the Huntley hearing considered and rejected
Powell’s argument after both Powell and Detective Grinder testified to the circumstances of his
confession. (See generally D.E. # 1-9 at 414-16.)9
At trial, Powell directly and frequently advanced the theory that his substance use, mental
and physical health issues, and the circumstances of his interrogation led him to falsely confess to
the robbery. His opportunities to present the false-confession theory included Powell’s own
9 Powell does not challenge the decision made after this hearing.
testimony that he falsely confessed, (see, e.g., T. 1070:1-3.); cross-examination of Detective
Grinder about the lack of record of the interrogation and Powell’s consumption of medication and
food during the interrogation, as well as his demeanor, (see, e.g., id. at 855:19-24, 856:3-21, 863:1-
867:7); and, defense counsel’s “vigorous summation, which clearly and forcefully discussed the
theory that” Powell falsely confessed, Schriver, 255 F.3d at 60; (see, e.g., T. 1481:16-1482:2,
1483-85, 1489, 1495:10-1496:5.)
Finally, Justice Margulis’s jury charge repeatedly instructed that a statement must be found
voluntary beyond a reasonable doubt and discussed what factors to consider when deciding
whether a statement was made voluntarily. (T. 1644-49.) In sum, the jury was presented with ample
information about the circumstances of Powell’s confessions and guidance about how to weigh
that information in deciding his guilt. Because the false-confession theory was brought before the
jury and the evidence undercutting the theory was strong, admitting Dr. Redlich’s testimony would
not have created a reasonable doubt that did not otherwise exist.
ii. Eyewitness-Identification Expert
Likewise, admitting Dr. Franklin’s testimony would not have created a reasonable doubt
that did not otherwise exist, both because Powell was able to vigorously challenge Yan’s
identification without expert testimony and because the state presented ample credible evidence
that supported Yan’s identification.
Defense counsel extensively cross-examined Yan on her identification of Powell. (See,
e.g., id. at 688:7-695:7.) Defense counsel attempted to bring out that Yan had originally
underestimated Powell’s age, (id. at 688:4-6), weight, (id. at 688:15-18), and failed to notice his
twelve missing teeth, (see id. at 703:2-4, 1073:5-7.) He also questioned whether she was paying
attention to his appearance when he first asked her for a light. (Id. at 691.) Defense counsel further
questioned her about whether the robber’s face was obscured by his clothing in the elevator. (Id.
at 692:18-695:25.) He additionally questioned whether she could see the robber when her glasses
got knocked off during the struggle, (id. at 694), and whether the stressful nature of the incident
may have corrupted her memory of the robber, (id. at 698:15-18.) He also challenged the reliability
of her selection of Powell in the lineup because the suspects were sitting down with their bodies
covered. (Id. at 711:22-713:8.)
In his summation, Defense counsel more directly challenged Yan’s identification,
highlighting that she was of a different race than the Defendant and that the trauma of the robbery
may have limited her ability to recall the robber’s appearance. (Id. at 1522:20-1532:4.) Justice
Margulis’s charge included a lengthy instruction on how to weigh the reliability of an eyewitness’s
identification of the Defendant. (Id. at 1637:17-1640:12.) The charge highlighted specifically how
cross-racial identifications may be less reliable, (id. at 1640:1-8), and how the “mental, physical,
and emotional state” of the eyewitness can affect the identification, (id. at 1639:10-13.)
Because the jury instructions, defense summation, and cross examination of Yan all
encouraged the jury to question whether her identification was credible, it cannot be said that
admitting Dr. Franklin’s testimony would have raised a reasonable doubt that didn’t otherwise
exist. As such, Powell was not deprived of the right to put on a defense about his false confession,
and the state-court decisions did not contain unreasonable applications of Supreme Court law.
C. The State Evidentiary Laws Are Not Arbitrary or Disproportionate to Their
Purposes
Powell further argues that, even if the decisions precluding the experts were correct on
state law, application of that state law was “arbitrary and disproportionate to the purposes [the
rules are] designed to serve.” (D.E. # 1 at 54, 61.) However, “the exclusion of evidence [has been
found] unconstitutionally arbitrary or disproportionate only where it has infringed upon a weighty
interest of the accused.” Scheffer, 523 U.S. at 308. In any case, “the type of evidentiary ruling
challenged in this case is afforded wide latitude by the Constitution.” Wade, 333 F.3d at 60. As
opposed to “state evidentiary rules leading to the blanket exclusion . . . of categories of evidence
when their application is arbitrary or disproportionate to the[ir] purposes,” this “ordinary
evidentiary ruling[] by [a] state trial court[]” is one “upon which the Court is traditional[ly]
reluctan[t] to impose constitutional constraints.” Id. (cleaned up).
Powell fails to establish that the application of evidentiary caselaw in these instances
infringed on any of his “weighty interests” because the preclusion of the expert witnesses from
testifying did not “disable [the] defendant from presenting [his] version of the events for which
[he was] on trial.” Rock, 483 U.S. at 61. As discussed supra in Section B, there was ample strong
evidence at trial that contradicted the theories that Dr. Redlich and Dr. Franklin would have
advanced. Furthermore, Powell took multiple meaningful opportunities to advance those theories
to the jury himself—squarely presenting his confession as false and repeatedly challenging Yan’s
identification of him as unreliable. The trial court’s decisions to preclude the expert testimony that
would have achieved the same effect therefore do not implicate “a sufficiently weighty interest of
the defendant to raise a constitutional concern.” Scheffer, 523 U.S. at 332 (internal quotation and
citation omitted). I therefore decline to disturb the state courts’ evidentiary rulings.
CONCLUSION
For the foregoing reasons, the petition for a writ of habeas corpus is denied. Because Powell
has not made a substantial showing of the denial of any constitutional right, I decline to issue a
certificate of appealability. See 28 U.S.C, § 2253(c); Miller-El v. Cockrell, 537 U.S, 322, 327
(2003). | respectfully direct the Clerk of Court to close the case. SO ORDERED,
Dated: March 26, 2026 □
Brooklyn, New York □□□ □□□ ice) ot-Ted Ca
Carol Bagley Amol
United States District Judge