Appellant McCowen Brief - Mass Cases

562. The Commonwealth must prove beyond a reasonable
doubt based upon a “totality of the circumstances . that
the defendant’s [submission to a DNA swab] was a free and
voluntary act and was not a product of inqukitorial
activity which had overborne his will.” Williams, supra
at 856. Cagey’s authority over this borderline retarded
probationer prevented a clear, intelligent decision and
this submission was the result of “tactics used by the
police, the details of the interrogation,“ and his
easily overborne will. United States v. Rohrktach, 813
F.2d 142, 144 (8th Cir. 1987).
Reasonable examination of Richard Ofshe, a
prominent expert on false confessions, should have been
allowed. When Ofshe tried to address the 27-page report
on McCowen’s non-taped custodial interview, the court
cut him off, arguing it was the jury‘s job, not: his, to
parse the all-important report. This abuse of discretion
preyudiced “a party to the cause by reason ... of too
narrow restriction ... of inquiry.” Vardinski,. supra;
Commonwealth v. Sansone, 252 Mass. 71 (1925).
Complicated issues and interrogation techniques used on
McCowen could best be explained by an expert.. Jurors
would not have this knowledge any more than they’d
understand DNA without expert testimony. The report on
the unrecorded interview was open to question; Ofshe‘s
-63-