A Fremont County judge wrongly excluded expert testimony about prison culture from a criminal trial, including an inmate’s incentive not to “snitch,” the state’s Court of Appeals ruled last week.

Because the testimony would have cast doubt on the defendant’s confession to possessing contraband in prison, the appellate court ordered a new trial for Jeremy B. Marsden.

In reviewing Marsden’s case, the appellate judges relied heavily on the 1986 U.S. Supreme Court decision of Crane v. Kentucky. After a 16-year-old confessed to police to a multitude of unsolved offenses, including those where the details of the actual crime did not match up with the confession, the defense attempted to introduce testimony to explain why the teenager’s statements to police were unreliable.

Although the Kentucky state courts sided against the defendant, the Supreme Court held that the “physical and psychological environment” of a confession is relevant not only to the question of whether the confession is voluntary, but whether the defendant is guilty at all.

While Marsden was incarcerated in Cañon City in June 2018, his cellmate was giving a tattoo to another detainee, which is a prohibited activity. A corrections officer spotted them, removed the detainees who were performing the tattooing and searched the cell.

She found several contraband items on the side of the room for Marsden’s cellmate. On his side, the corrections officer located a scissors blade modified to resemble a knife, plus a handful of other sharp items. She confronted Marsden in a common area and asked him about the improvised knife.

Allegedly fearful of being labeled a snitch, Marsden took responsibility for the knife and said he used it to repair radios and televisions.

Marsden gave a total of four confessions to possessing the knife, although he changed his explanation for what the knife was used for. Reportedly, beginning the day after the incident, other inmates started yelling at Marsden to “keep it true” and “don’t rat.”

Prosecutors charged Marsden with possession of contraband. At trial, the government relied heavily on Marsden’s confession. However, the defense countered the confession was false because Marsden feared being labeled a snitch in prison. He reportedly had seen other inmates be assaulted for providing incriminating information against fellow detainees.

Marsden attempted to call Edwin Herndon as an expert witness. Herndon worked for 14 years as a criminal investigator within the corrections department, reportedly conducting over 1,100 investigations – 560 of which involved contraband. 

Herndon was prepared to testify about the “inherent influences” within prisons that diminish the credibility of inmates’ statements. Prisoners can be more afraid of other detainees than they are of corrections officers, Herndon believed, and he would not trust the answers an inmate gives in front of other inmates. Statements made in Department of Corrections investigations are “inherently less credible” because of prisoners’ desire to avoid the label of “snitch.”

However, District Court Judge Lynette M. Wenner ruled Herndon could not testify, citing a “danger of confusion” to the jury and the delay the testimony would cause.

“I’m not finding that the culture of the DOC is relevant,” she said.

On appeal, the government argued Wenner properly excluded the testimony, likening it to prohibitions on expert statements that vouch for the credibility of sex assault victims.

But a three-judge panel for the Court of Appeals disagreed with that argument, noting Herndon’s testimony was not intended to comment on whether Marsden was telling the truth, but rather to educate jurors about the environment of Marsden’s confession.

“This testimony had at least some tendency to make it more probable that Marsden’s inculpatory statements were false – that he claimed ownership of the contraband due to fear of violent retaliation had he told the authorities that the contraband belonged to his cellmate and other inmates learned of his cooperation,” wrote Judge Ted C. Tow III in the Oct. 27 opinion.

Tow added that it was possible, had jurors heard the expert’s testimony, they would have acquitted Marsden of the contraband charge. Therefore, his inability to present evidence explaining the physical and psychological environment for his confession violated his constitutional right to present a complete defense, and the panel reversed Marsden’s conviction.

The case is People v. Marsden.