3 DEPARTMENT NO. 101 HON. WILLIAM R. POUNDERS, JUDGE 7 VS. ) NO. BA REPORTER'S PARTIAL TRANSCRIPT OF PROCEEDINGS

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1 1 SUPERIOR COURT OF THE STATE OF CALIFORNIA 2 FOR THE COUNTY OF LOS ANGELES 3 DEPARTMENT NO. 101 HON. WILLIAM R. POUNDERS, JUDGE 4 5 THE PEOPLE OF THE STATE OF CALIFORNIA, 6 PLAINTIFF, 7 VS. ) NO. BA LONYAE TUCKER, 9 DEFENDANT REPORTER'S PARTIAL TRANSCRIPT OF PROCEEDINGS 12 MARCH 8, PAGES APPEARANCES: 15 FOR THE PLAINTIFF: GIL GARCETTI 16 DISTRICT ATTORNEY BY: KATERI MODDER, DEPUTY CRIMINAL COURTS BUILDING 210 WEST TEMPLE STREET 18 LOS ANGELES, CALIFORNIA FOR THE DEFENDANT: MICHAEL P. JUDGE PUBLIC DEFENDER 20 BY: LORI HARRIS, DEPUTY CRIMINAL COURTS BUILDING WEST TEMPLE STREET LOS ANGELES, CALIFORNIA JEANNE C. IANNONE, CSR #3140 OFFICIAL REPORTER <<< Page 1 >>>

2 1 INDEX 2 DAY DATE SESSION PAGE 3 MONDAY MARCH 8, 1999 A.M. 4 CHRONOLOGICAL INDEX OF WITNESSES 5 DEFENDANT'S VOIR 6 WITNESSES DIRECT CROSS REDIRECT RECROSS DIRE 7 OFSHE, RICHARD (OUT OF ORDER)

3 .7 <<< Page 2 >>> 1 1 LOS ANGELES, CALIFORNIA; MONDAY, MARCH 8, :38 A.M. 3 DEPARTMENT NO. 101 HON. WILLIAM R. POUNDERS, JUDGE 4 5 (APPEARANCES AS HERETOFORE NOTED.) 6 7 (THE FOLLOWING PROCEEDINGS WERE 8 HELD IN OPEN COURT OUTSIDE THE 9 PRESENCE OF THE JURY:) THE COURT: GOOD MORNING. WE DO HAVE MR. TUCKER 12 AND BOTH COUNSEL PRESENT THE COURT: YOU MAY CALL YOUR FIRST WITNESS. 17 MS. HARRIS: YOUR HONOR, THE DEFENSE CALLS DR. 18 RICHARD OFSHE RICHARD OFSHE, 21 CALLED AS A WITNESS BY THE DEFENSE, WAS SWORN AND 22 TESTIFIED AS FOLLOWS: THE CLERK: PLEASE RAISE YOUR RIGHT HAND TO BE 25 SWORN.

4 26 YOU DO SOLEMNLY SWEAR THAT THE TESTIMONY 27 YOU MAY GIVE IN THE CAUSE NOW PENDING BEFORE THIS COURT 28 SHALL BE THE TRUTH, THE WHOLE TRUTH, AND NOTHING BUT 1 <<< Page 3 >>> 1 THE TRUTH, SO HELP YOU GOD. 2 THE WITNESS: I DO. 3 THE CLERK: PLEASE HAVE A SEAT IN THE WITNESS 4 STAND. 5 PLEASE STATE AND SPELL YOUR NAME FOR THE 6 RECORD. 7 THE WITNESS: RICHARD OFSHE, O-F-S-H-E. 8 THE CLERK: THANK YOU. 9 THE COURT: YOU MAY INQUIRE. 10 MS. HARRIS: THANK YOU, YOUR HONOR. 11 YOUR HONOR, MAY I HAVE A MOMENT, PLEASE? 12 THE COURT: YES. 13 MS. HARRIS: THANK YOU DIRECT EXAMINATION 16 BY MS. HARRIS: 17 Q. DR. OFSHE, WHAT IS YOUR OCCUPATION AND 18 PROFESSION. 19 A. I'M A SOCIAL PSYCHOLOGIST, AND I'M ON THE 20 FACULTY AT THE UNIVERSITY OF CALIFORNIA AT BERKELEY 21 WHERE I TEACH AND DO RESEARCH. 22 Q. AND HOW LONG HAVE YOU TAUGHT THERE? 23 A. THIRTY-TWO YEARS.

5 24 Q. WHAT IS YOUR EDUCATIONAL BACKGROUND? 25 A. I HAVE A BACHELOR'S DEGREE IN PSYCHOLOGY 26 FROM QUEENS COLLEGE OF THE CITY UNIVERSITY OF NEW YORK, 27 A MASTER'S DEGREE IN SOCIOLOGY FROM THE SAME 28 INSTITUTION, AND THEN A PH.D. DEGREE FROM THE SOCIOLOGY <<< Page 4 >>> 1 DEPARTMENT, BUT WITH MY AREA OF WORK IN SOCIAL 2 PSYCHOLOGY FROM STANFORD UNIVERSITY. 3 THE COURT: WOULD YOU BRING THAT MICROPHONE BACK 4 TOWARD YOU. I CAN'T HEAR YOUR ANSWERS. 5 THE WITNESS: SORRY, YOUR HONOR. 6 Q. BY MS. HARRIS: HAVE YOU HAD ANY 7 ADDITIONAL TRAINING BESIDES YOUR ACADEMIC TRAINING? 8 A. WELL, I'VE HAD 30 YEARS WORTH OF RESEARCH 9 ON A VARIETY OF TOPICS. I DON'T KNOW IF THAT'S 10 TRAINING, BUT THAT'S CERTAINLY EXPERIENCE. 11 Q. NOW, HAVE YOU BEEN HONORED IN THE FIELD OF 12 YOUR EXPERTISE? 13 A. YES. 14 Q. WHAT KIND OF HONORS HAVE YOU RECEIVED? 15 A. WELL, I WAS AWARDED A JOHN SIMON 16 GUGGENHEIM MEMORIAL FOUNDATION FELLOWSHIP IN 1973, '74 17 AND THAT'S CONSIDERED AN HONOR IN MY FIELD. AND THEN 18 IN 1979 I WAS A MEMBER OF THE THREE PERSON RESEARCH AND 19 REPORTING GROUP THAT WON THE PULITZER PRIZE FOR PUBLIC 20 SERVICE FOR THE POINT REYES LIGHT NEWSPAPER. THAT'S 21 THE GOLD MEDAL PRIZE THAT'S GIVEN TO THE INSTITUTION 22 RATHER THAN THE INDIVIDUALS WHO DID THE WORK. THAT WAS 23 IN 1979 FOR AN EXPOSE OF A VIOLENT SUPPOSED DRUG

6 24 REHABILITATION ORGANIZATION NAMED SYNANON. 25 AND THEN IN 1994 I RECEIVED AN AWARD FOR 26 HAVING AUTHORED THE BEST PAPER ON CLINICAL HYPNOSIS OF 27 THE YEAR. THE AWARD GIVEN BY THE INTERNATIONAL SOCIETY 28 FOR CLINICAL AND EXPERIMENTAL HYPNOSIS. <<< Page 5 >>> 4 1 Q. AND ARE YOU A MEMBER OF ANY PROFESSIONAL 2 ORGANIZATIONS? 3 A. YES. 4 Q. WHICH ONES? 5 A. THE AMERICAN PSYCHOLOGICAL SOCIETY, THE 6 AMERICAN SOCIOLOGICAL ASSOCIATION AND THEN SOME 7 REGIONAL ORGANIZATIONS. 8 Q. DR. OFSHE, IN THE COURSE OF YOUR 30 YEARS 9 RESEARCH AND WORK, HAVE YOU HAD OCCASION TO BE 10 PUBLISHED? 11 A. OH, YES. 12 Q. HOW MANY TIMES? 13 A. BOOKS OR ARTICLES? 14 Q. HOW MANY BOOKS? 15 A. BOOKS, SIX INCLUDING THE ONE THAT'S COMING 16 OUT NEXT MONTH. 17 Q. AND HOW MANY PROFESSIONAL ARTICLES HAVE 18 YOU WRITTEN? 19 A. ABOUT FOUR AND A HALF PAGES WORTH. THAT'S 20 PROBABLY 40, 50, SOMETHING LIKE THAT. 21 Q. THOSE ARTICLES ARE PUBLISHED IN WHAT TYPES

7 22 OF PUBLICATIONS USUALLY? 23 A. USUALLY IN PEER REVIEW SOCIAL SCIENCE 24 JOURNALS. 25 Q. NOW, HAVE YOU EVER QUALIFIED AS AN EXPERT 26 WITNESS BEFORE? 27 A. YES. 28 Q. HOW MANY TIMES? <<< Page 6 >>> 5 1 A. ONE HUNDRED THIRTY. 2 Q. AND WHICH -- HOW MANY STATES HAVE YOU 3 TESTIFIED IN BEFORE? 4 A. TWENTY-SIX STATES. 5 Q. AND HOW OFTEN HAVE YOU TESTIFIED IN THE 6 STATE OF CALIFORNIA? 7 A. THIRTY-NINE. 8 Q. NOW, HAVE YOU EVER CONSULTED WITH THE 9 PROSECUTION AS AN EXPERT? 10 A. YES. 11 Q. AND HAVE YOU CONSULTED WITH THE LOS 12 ANGELES DISTRICT ATTORNEY'S OFFICE? 13 A. YES. 14 Q. IN WHICH CASE WAS THAT? 15 A. ON THE RETRIAL OF THE MENENDEZ BROTHERS 16 CASE. 17 Q. NOW, WHAT IS THE FOCUS OR THE AREA -- YOUR 18 FOCUSED AREA OF STUDY? 19 A. MY AREA OF RESEARCH OVER MY WHOLE CAREER

8 20 HAS BEEN ABOUT INFLUENCE AND DECISION MAKING, AND I'VE 21 REALLY FOCUSED ON THREE DIFFERENT TOPICS DURING THE 22 YEARS OF MY WORK. INITIALLY -- WELL, ACTUALLY FOUR 23 DIFFERENT TOPICS. 24 INITIALLY I DID WORK ON SOME STANDARD 25 LABORATORY BASE STUDIES OF INFLUENCE AND DECISION 26 MAKING, USUALLY WORK INVOLVING MATHEMATICAL MODELS OF 27 DECISION MAKING AND WHAT WOULD BE CALLED MICRO 28 ECONOMICS, AND THIS WAS FAIRLY HIGH TECH LABORATORY <<< Page 7 >>> 6 1 BASED RESEARCH, WHICH WAS VERY INTERESTING, BUT 2 ULTIMATELY I FOUND SOMEWHAT BORING. 3 AND THEN I DECIDED TO DO WORK ON TOPICS 4 THAT WERE MORE COMPLEX. I STARTED STUDYING REAL WORLD 5 ENVIRONMENTS IN WHICH PEOPLE ARE INFLUENCED TO DO 6 EXTRAORDINARY THINGS. SO RATHER THAN STUDY LITTLE BITS 7 AND PIECES OF DECISION MAKING IN THE LABORATORY, I 8 MOVED TO STUDY COMPLEX REAL WORLD ENVIRONMENTS IN THEIR 9 EXTREME WHERE PEOPLE WERE GOTTEN TO DO THINGS THAT YOU 10 WOULDN'T EXPECT THEM TO DO THE FIRST AREA THAT I WORKED IN IN THAT 12 CONNECTION HAD TO DO WITH THE WAY IN WHICH HIGH 13 CONTROLLED GROUPS~ GROUPS THAT ARE VERY TIGHTLY 14 ORGANIZED AND USE CERTAIN KINDS OF INFLUENCE PRACTICES 15 CAN RECRUIT PEOPLE, MANIPULATE THEM, GET THEM TO SEE 16 THE WORLD IN A WAY RADICALLY DIFFERENT THAN THEY'D SEEN 17 THEM BEFORE, AND THEN GET THEM TO COMMIT VIOLENCE ON

9 18 BEHALF OF A GROUP. AND THAT WOULD BE WORK INVOLVING 19 HIGH CONTROLLED VIOLENT CULT GROUPS. SYNANON, FOR 20 EXAMPLE, WOULD BE ONE EXAMPLE OF THAT. 21 THEN I BECAME INTERESTED SUBSEQUENTLY IN 22 THE AREA OF POLICE INTERROGATION. POLICE INTERROGATION 23 BEING ANOTHER REAL WORLD ENVIRONMENT IN WHICH INFLUENCE 24 FORCES ARE BROUGHT TO BEAR ON AN INDIVIDUAL, AND THESE 25 FORCES CAN LEAD PEOPLE TO DO THINGS CERTAINLY THAT THEY 26 DIDN'T WANT TO DO WHEN THE INTERROGATION BEGAN. EITHER 27 ADMIT TO HAVING COMMITTED A CRIME THAT THEY COMMITTED 28 OR ADMIT TO COMMITTING A CRIME THAT THEY DIDN'T COMMIT. <<< Page 8 >>> 7 1 SO AGAIN IT HAD TO DO WITH VERY POWERFUL INFLUENCE 2 FORCES. 3 THE THIRD AREA THAT I WORKED IN, AND 4 ALTHOUGH POLICE INTERROGATION HAS BEEN MY PRINCIPLE 5 AREA OF WORK FOR THE LAST 12 YEARS, THERE'S ANOTHER 6 AREA THAT I'VE DONE A FAIR AMOUNT OF WORK IN IN THE 7 LAST SIX OR SEVEN YEARS, AND THIS HAS TO DO WITH THE 8 WAY IN WHICH BADLY TRAINED PSYCHOTHERAPISTS CAN 9 CONVINCE PEOPLE THAT THEY ARE SUDDENLY DISCOVERING THAT 10 THEIR MOTHERS, FATHERS, SISTERS, BROTHERS, CLERICS, 11 TEACHERS OR ANYBODY IN THEIR NEIGHBORHOOD HAVE BEEN 12 SEXUALLY ABUSING THEM FOR FIVE, TEN, 15, 20 YEARS, AND 13 THEY DIDN'T KNOW IT UNTIL THEY HAD DONE PSYCHOTHERAPY. 14 THIS IS CALLED RECOVERED MEMORY THERAPY, AND IT'S A 15 SIGNIFICANT PUBLIC HEALTH PROBLEM.

10 16 Q. NOW, THE AREA OF DECISION MAKING AS IT 17 RELATES TO POLICE INTERROGATION, IS THAT A RECOGNIZED 18 AREA FOR - - WITHIN YOUR FIELD OF STUDY? 19 A. IT'S A HIGHLY SPECIALIZED BUT 20 INTERNATIONALLY RECOGNIZED AREA. THERE ARE 21 CONTRIBUTORS TO THE LITERATURE ON THIS FROM THE U.S., 22 EUROPE. IT'S A WELL DEVELOPED FIELD, BUT VERY VERY 23 SPECIALIZED. 24 Q. AND CAN YOU ESTIMATE HOW LONG PEOPLE HAVE 25 BEEN FOCUSING ON THIS AREA OF STUDY? 26 A. WELL, CERTAINLY THE ISSUE OF INTERROGATION 27 AND ELICITING TRUE AND FALSE CONFESSIONS HAS BEEN A 28 SUBJECT OF INTEREST IN THE WESTERN WORLD FOR HUNDREDS <<< Page 9 >>> 8 1 OF YEARS. 2 ORGANIZED STUDY OF IT PROBABLY BEGAN 50 TO 3 75 YEARS AGO. IT'S AN AREA THAT APPLIES PRINCIPLES 4 DEVELOPED IN SOCIAL PSYCHOLOGY, PRINCIPLES OF 5 INFLUENCE, PRINCIPLES OF DECISION MAKING TO GO TO A 6 HIGHLY SPECIALIZED ENVIRONMENT. 7 POLICE INTERROGATION ITSELF IS A 8 TRAINED -- IT'S AN ART. IT'S SOMETHING THE POLICE GO 9 TO SCHOOL TO LEARN HOW TO DO, THE METHODS OF DOING IT 10 ARE TAUGHT, PEOPLE STUDY THE METHODS. SOME PEOPLE 11 DEVELOP THEM, OTHER PEOPLE STUDY THEM. SO THERE'S 12 SUBSTANTIAL LITERATURE ON THIS SUBJECT. 13 Q. AND CAN YOU EXPLAIN MODERN INTERROGATION.

11 14 A. YES, I CAN DO THAT. 15 Q. WOULD YOU, PLEASE. 16 A. OKAY. IT'S GOING TO BE A LONG ANSWER. 17 AND IT WILL BE HELPFUL IF I CAN GO TO THE EASEL. 18 MS. HARRIS: YOUR HONOR, MAY HE, PLEASE. 19 THE COURT: SURE. 20 THE WITNESS: TO PUT THIS IN CONTEXT, ONE HAS TO 21 UNDERSTAND THAT POLICE INTERROGATION HAS LITERALLY BEEN 22 TRANSFORMED IN THE LAST 60 TO 70 YEARS. WE GO BACK TO 23 THE 1930S, PARTICULARLY SAY 1931, A COMMISSION CALLED 24 THE WICKERSHAM COMMISSION PUBLISHED A REPORT. 25 WICKERSHAM WAS A FORMER ATTORNEY GENERAL OF THE UNITED 26 STATES. 27 HE PUBLISHED -- THIS COMMISSION WAS PUT 28 TOGETHER TO STUDY POLICE PRACTICES, AND BASICALLY THE <<< Page 10 >>> 9 1 WICKERSHAM COMMISSION REPORTED THAT THIRD DEGREE WAS 2 RAMPANT IN THE UNITED STATES, WAS USED EVERYWHERE, AND 3 THIRD DEGREE MEANS NOTHING LESS THAN BEATING 4 CONFESSIONS FROM SUSPECTS. IT WAS A GREAT DEAL OF 5 PUBLIC ATTENTION DIRECTED TO THIS PROBLEM. THE 6 WICKERSHAM COMMISSION SPARKED A LOT OF THAT. 7 SUBSEQUENT TO THAT, THE UNITED STATES 8 SUPREME COURT STARTED HANDING DOWN A SERIES OF 9 DECISIONS OUTLAWING SOMETHING THAT HAD NEVER BEEN 10 ACCEPTABLE BY MAKING IT CLEAR THAT TORTURING, BEATING 11 CONFESSIONS OUT OF SUSPECTS WAS SOMETHING THAT WAS NOT

12 12 GOING TO BE TOLERATED. THE WHOLE SERIES OF CASES IN 13 WHICH THE COURT STRUCK DOWN ONE OR ANOTHER COERCIVE 14 TORTUROUS PRACTICE. 15 THE FACT THAT POLICE WERE NO LONGER 16 PERMITTED TO USE PHYSICAL FORCE NECESSITATED NEW 17 METHODS OF INTERROGATION DEVELOPING. THE METHODS OF 18 INTERROGATION THAT DEVELOPED ARE METHODS OF 19 PSYCHOLOGICAL MANIPULATION, OF MANIPULATING SOMEONE'S 20 PERCEPTION OF THEIR SITUATION, OF MANIPULATING WHAT 21 THEY THINK TO BE THE CHOICES IN FRONT THEM, OF 22 STRUCTURING THE ENVIRONMENT IN WHICH THEY FIND 23 THEMSELVES, PROVIDING THEM WITH INFORMATION OF A 24 CERTAIN SORT THAT IS LIKELY TO LEAD THEM TO DO WHAT THE 25 INTERROGATOR WANTS THEM TO DO. 26 THIS METHOD OF PSYCHOLOGICAL 27 INTERROGATION, WHICH REALLY STARTED DEVELOPING IN THE LATE 1930S, LET'S SAY, WAS PROBABLY FULLY IN <<< Page 11 >>> 10 1 PLACE BY THE MIDDLE 1960S. 2 SO IN THE MIRANDA DECISION, FOR EXAMPLE, 3 THE DISCUSSION THAT THE SUPREME COURT ENGAGES IN IN 4 MIRANDA IS ALL ABOUT THE NEED TO CONSIDER PSYCHOLOGICAL 5 METHODS OF INTERROGATION AND THE POTENTIAL FOR 6 PSYCHOLOGICAL METHODS OF INTERROGATION COERCING 7 INVOLUNTARY OR UNTRUE STATEMENTS FROM PEOPLE IT'S GENERALLY ACCEPTED THAT BY THE S, THIRD DEGREE IS PRETTY MUCH A DEAD ISSUE AND

13 10 PSYCHOLOGICAL METHODS OF INTERROGATION ARE IN PLACE. 11 WITH THE DEVELOPMENT OF PSYCHOLOGICAL 12 METHODS OF INTERROGATION, POLICE OFFICERS HAD TO BE 13 TRAINED IN HOW TO USE THEM. THIS OCCURS IN IN-HOUSE 14 TRAINING COURSES SUCH AS THE L.A.P.D. ENGAGES IN, THERE 15 ARE COMMERCIAL ORGANIZATIONS THAT TRAIN POLICE IN 16 INTERROGATION PROCEDURES, AND THEN A LOT OF THE 17 TRAINING OCCURS ON THE JOB, PEOPLE LEARNING TECHNIQUES 18 AND MOVES FROM OTHER OFFICERS. 19 MODERN POLICE INTERROGATION IS ACTUALLY 20 VERY EASY TO UNDERSTAND. IF ONE RECOGNIZES THAT IT'S A 21 SYSTEM OF INFLUENCE, IT'S A SET OF PROCEDURES, A SET OF 22 MOVES THAT THE INTERROGATOR HAS LEARNED TO ENGAGE IN, 23 EVEN IF THE INTERROGATOR DOESN'T UNDERSTAND WHY THESE 24 MOVES NEED TO BE DONE IN A CERTAIN ORDER, THE 25 INTERROGATOR IS LIKELY TO LEARN HOW TO DO IT EVEN IF 26 THEY DON'T HAVE A COMPLETE UNDERSTANDING OF WHY THEY'RE 27 DOING WHAT THEY DO AT A PARTICULAR MOMENT. 28 AND I CAN ILLUSTRATE THIS AND DESCRIBE <<< Page 12 >>> 1 WHAT HAPPENS TN MODERN INTERROGATION I THINK FAIRLY 2 SIMPLY. 3 4 (THE WITNESS STEPS TO THE BOARD.) 5 6 Q. BY MS. HARRIS: DR. OFSHE, SHOULD WE MOVE 7 THAT BOARD OVER A LITTLE BIT? 8 A. THAT WOULD PROBABLY HELP.

14 9 MS. HARRIS: EXCUSE ME, YOUR HONOR. MAY I 10 APPROACH? 11 THE COURT: YES. 12 THE WITNESS: I'M GOING TO USE THIS GRAPH TO 13 DESCRIBE WHAT HAPPENS IN POLICE INTERROGATION. 14 WHAT THIS GRAPH REPRESENTS ON THIS AXIS IS 15 SIMPLY THE CONFIDENCE THAT THE PERSON BEING 16 INTERROGATED HAS THAT THEY WILL BE ABLE TO SURVIVE THE 17 INTERROGATION AND NOT GET ARRESTED, NOT GET TRIED, NOT 18 GET CONVICTED, GET THROUGH THE INTERROGATION. 19 RUNNING FROM ZERO, ABSOLUTELY CERTAIN THAT 20 YOUR FATE IS TO BE ARRESTED, TRIED, CONVICTED, THAT'S 21 WHAT'S GOING TO HAPPEN IN THE FUTURE TO A HUNDRED 22 PERCENT CONFIDENT THAT THIS INTERROGATION OR THIS THING 23 THAT'S ABOUT TO HAPPEN IS NOT GOING TO CAUSE YOU ANY 24 PROBLEM. NOW, THAT'S THIS AXIS. THIS IS REALLY THE 25 CONFIDENCE THAT THE PERSON WILL GET THROUGH WITHOUT A 26 BAD OUTCOME FROM THEIR POINT OF VIEW. 27 THIS AXIS IS SIMPLY TIME. ANY 28 INTERROGATION CAN BE BROKEN DOWN INTO TWO PARTS. WHAT <<< Page 13 >>> 12 1 I'LL CALL THE PRE ADMISSION PHASE AND THE POST 2 ADMISSION PHASE. 3 THE DIVIDING LINE IS THE POINT IN THE 4 INTERROGATION WHEN THE SUSPECT SAYS, "I DID IT," WHEN 5 THEY EXACTLY USE THOSE WORDS OR IT BECOMES CLEAR THAT 6 THEY'RE GIVING IN, THEY'RE SAYING -- WHETHER IN THOSE

15 7 WORDS OR ANOTHER WORDS EFFECTIVELY SAYING, "I DID IT." 8 THE PRE ADMISSION PHASE IS ALL ABOUT 9 MOTIVATING THE PERSON WHO STARTS THE INTERROGATION 10 PRETTY CONFIDENT THAT THEY'RE GOING TO BE OKAY, GETTING 11 THAT PERSON MOTIVATED TO SAY, "I DID IT." 12 THE POST ADMISSION PHASE HAS TO DO WITH 13 COLLECTING THE STORY OF THE CRIME, THE ACTUAL 14 CONFESSION ITSELF. JUST SAYING, "I DID IT" IS NOT A 15 CONFESSION, ALTHOUGH MOST PEOPLE THINK IT IS. A 16 CONFESSION FOR MY PURPOSES, AND GENERALLY THIS IS HOW 17 IT'S DEFINED, IS A FULL AND COMPLETE STATEMENT OF THE 18 PERSON'S PARTICIPATION IN THE CRIME. IT'S NOT JUST 19 SAYING, OKAY, I DID IT. THIS IS WHAT I DID, THIS 20 HAPPENED, THIS HAPPENED, THIS HAPPENED, THE DETAILS. 21 IT'S THE POST ADMISSION NARRATIVE, THE 22 ACTUAL CONFESSION THAT IF PROPERLY ANALYZED, IF LOOKED 23 AT CAREFULLY IN RELATION TO THE FACTS OF THE CRIME THAT 24 WILL ALLOW SOMEBODY TO KNOW WHETHER THE, "I DID IT" 25 STATEMENT IS TRUE OR FALSE, BECAUSE WE KNOW THAT MODERN 26 POLICE INTERROGATION METHODS CAN, IF MISUSED, LEAD THE 27 INNOCENT TO GIVE FALSE CONFESSIONS. 28 NOW, THAT'S NOT SOMETHING THAT HAPPENS ALL <<< Page 14 >>> 13 1 THAT FREQUENTLY. NOBODY ACKNOWLEDGES HOW FREQUENTLY T 2 HAPPENS AND NO ONE IS SUGGESTING THAT THAT'S A BIG 3 PERCENTAGE OF THE INTERROGATIONS THAT -- OR THE RESULTS 4 OF INTERROGATIONS THAT HAPPEN. BUT IT DOES HAPPEN, AND

16 5 IT HAPPENS REGULARLY. AND JUST BECAUSE SOMEBODY SAID, 'I DID IT" 7 DOESN'T MEAN THAT IT'S TRUE. ONLY BY LOOKING AT THE 8 POST ADMISSION NARRATIVE CAN SOMEBODY WHO WANTS TO KNOW 9 WHETHER IT'S TRUE OR FALSE MAKE A REASONED AND FAIR AND 10 RATIONAL EVALUATION OF THE STATEMENT. 11 LET ME EXPLAIN HOW IT WORKS. 12 LET'S ASSUME IN THE BEGINNING THE PERSON 13 UNDERGOING THE INTERROGATION FEELS THAT THEY'RE GOING 14 TO BE OKAY, THEY'RE PRETTY CONFIDENT THAT THIS IS NOT 15 GOING TO BE A PROBLEM, EITHER BECAUSE THEY KNOW THEY 1~ DIDN'T COMMIT THE CRIME AND THEREFORE THEY THINK 17 EVERYTHING IS GOING TO BE OKAY BECAUSE I HAVE NOTHING 18 TO WORRY ABOUT, I DIDN'T COMMIT THIS CRIME, OR FOR THE 19 PERSON WHO COMMITTED THE CRIME, THAT PERSON HAS GOT TO 20 MAKE THE CHOICE IS IT BETTER FOR ME TO ALLOW THE POLICE 21 TO INTERVIEW/INTERROGATE ME, BECAUSE THEY MAY THINK 22 THEY'RE GETTING INVOLVED IN AN INTERVIEW, BUT IT MAY 23 VERY WELL BE AN INTERROGATION NO MATTER HOW IT'S 24 DESCRIBED. 25 AM I BETTER OFF BY PLAYING ALONG LETTING 26 THE POLICE TALK TO ME OR TELLING THEM I DON'T WANT TO 27 TALK TO YOU AND THEREBY DRAWING MORE ATTENTION TO ME WHETHER THE PERSON IS INNOCENT OR <<< Page 15 >>> 1 GUILTY, IT'S PROBABLY FAIR TO SAY THAT ANYBODY WHO 2 ALLOWS THEMSELVES TO BE INTERROGATED STARTS OUT WITH 3 THE IDEA THEY'RE GOING TO BE ABLE TO GET THROUGH THIS. 4 NOW, IF SOMEONE FEELS THAT I CAN UNDERGO

17 5 THIS CONVERSATION AND IT'S NOT GOING TO CAUSE ME ANY 6 PROBLEMS, WHEN YOU START WITH THAT ATTITUDE, YOU'RE NOT 7 LIKELY TO SAY, "1 DID IT" WHETHER YOU DID IT OR NOT. 8 THE PERSON WHO DID IT DOESN'T FEEL LIKE ADMITTING IT 9 AND BEING PUNISHED, THE PERSON WHO DIDN'T DO IT KNOWS 10 THEY DIDN'T COMMIT THE CRIME AND HAS NO INTEREST IN 11 SAYING, "1 DID IT" WHEN THAT'S NOT TRUE. 12 HOW DOES AN INTERROGATOR GET SOMEBODY TO 13 GO FROM, "I DIDN'T DO IT" TO "I DID IT"? THE WAY IN 14 WHICH THIS WORKS IS BY MANIPULATING THE PERSON'S 15 PERCEPTION OF THE SITUATION IN WHICH THEY FIND 16 THEMSELVES. 17 WHAT POLICE WILL DO IS USE A SERIES OF 18 WHAT I'M GOING TO CALL EVIDENCE PLOYS. NOW, WHAT I 19 MEAN BY AN EVIDENCE PLOY IS REVEALING TO THE SUSPECT 20 SOME PIECE OF INFORMATION THAT'S TACTICALLY INTRODUCED, 21 IT'S INTRODUCED FOR THE PURPOSE OF MAKING THE PERSON 22 FEEL THAT THEIR SITUATION IS HOPELESS POLICE WILL INTRODUCE A SERIES USUALLY 24 OF EVIDENCE PLOYS IN ORDER TO GET THE PERSON TO FEEL 25 HOPELESS, TO GET THE PERSON TO FEEL THAT YOU'RE CAUGHT 26 OR YOUR FUTURE IS DETERMINED LIKE IT OR NOT AN EVIDENCE PLOY MIGHT BE WE HAVE AN 28 EYEWITNESS WHO SAW YOU LEAVING THE VICTIM'S APARTMENT <<< Page 16 >>> 15 1 AT 3 O'CLOCK IN THE MORNING. SOMEBODY I.D.'S YOU, I 2 KNOW IT'S YOU, WE'VE GOT AN EYEWITNESS. THAT MAY OR

18 3 MAY NOT BE TRUE. POLICE CAN REVEAL INFORMATION THAT 4 THEY ACTUALLY HAVE, BUT THEY CAN ALSO MAKE UP FACTS TO 5 USE IN THE COURSE OF AN INTERROGATION FOR THE PURPOSE 6 OF MANIPULATING THE PERSON'S BELIEF ABOUT WHAT THEIR 7 SITUATION IS. 8 NOW, FOR SOMEBODY -- AND IT MAKES SOME 9 SENSE THAT POLICE SHOULD BE ALLOWED TO DO THAT, IF THEY 10 HAVE GOOD REASON TO BELIEVE THAT SOMEBODY COMMITTED THE 11 CRIME. 12 LET'S SAY THERE ARE FOUR PIECES OF 13 INFORMATION. TWO OF THEM ARE REAL, TWO OF THEM LINK 14 THIS PERSON TO THE CRIME TO CONVINCE THE INTERROGATOR 15 THAT THE PERSON DID IT, BUT IT'S NOT ENOUGH TO CONVINCE 16 THE PERSON THAT HE'S CAUGHT NOR IS IT ENOUGH TO GET HIM 17 CONVICTED. SO THE INTERROGATOR MAY MAKE UP TWO 18 ADDITIONAL FACTS TO TRY AND CONVINCE THE PERSON THAT WE 19 GOT YA, AND FOR THE PERSON WHO'S IN FACT GUILTY, IT'S 20 NOT THAT DIFFICULT TO DO. 21 THE DANGER IS IF A PERSON WHO IS INNOCENT 22 IS PICKED OUT FOR INTERROGATION, AND USUALLY THIS 23 HAPPENS EITHER BECAUSE THERE'S ONE PIECE OF 24 MISINFORMATION OR SOMEHOW THE PERSON'S NAME HAS COME UP 25 FOR NO REALLY GOOD REASON, IT MIGHT JUST BE THE SPOUSE 26 OF THE DEAD INDIVIDUAL AND HAVING NO PLACE ELSE TO 27 START, THE POLICE TURN TO THE SPOUSE BECAUSE THEY READ 28 SOMEPLACE THAT THE MOST LIKELY PERSON TO KILL AN <<< Page 17 >>> 16

19 1 INDIVIDUAL IS THAT PERSON'S SPOUSE. 2 OR A NEIGHBOR, SOMEBODY WITH A CONNECTION, 3 BECAUSE IF IT ISN'T SOMEBODY WITH A CONNECTION, THEY'RE 4 VERY UNLIKELY TO BE ABLE TO FIND THEM. SO THEY'LL 5 START WITH CLOSE CONNECTED PEOPLE AND THEN LOOK THEN A 6 LITTLE BIT FURTHER AWAY, HOPING TO FIND A SUSPECT. BUT 7 THEY MAY NOT HAVE ANY REAL EVIDENCE TO MAKE SOMEBODY A 8 SUSPECT OTHER THAN THE FACT THAT THEY'RE SOMEHOW IN THE 9 PERSON'S WORLD. 10 IF A WRONG PERSON IS PICKED OUT, SOMEONE 11 WHO IS INNOCENT AND THAT PERSON IS TOLD WE'VE GOT 12 EYEWITNESSES WHO PUT YOU AT THE CRIME SCENE, THAT 13 PERSON IS GOING TO BE IMPACTED IN ESSENTIALLY THE SAME 14 WAY THAT THE PERSON WHO KNOWS THAT THEY WERE AT THE 15 CRIME SCENE AND IS TOLD WE HAVE A WITNESS IS GOING TO 16 BE IMPACTED. 17 THEY'RE GOING TO BEGIN TO THINK THEY'RE IN 18 TROUBLE. THE PERSON WHO'S INNOCENT IS GOING TO THINK 19 THIS IS A MISTAKE. THE PERSON WHO KNOWS THEY COMMITTED 20 THE CRIME IS GOING TO START GETTING WORRIED, HEY, I'M 21 CAUGHT. 22 BUT THE PERSON WHO IS INNOCENT BEGINS TO 23 SEE HOW MUCH POWER THE POLICE HAVE AND BEGINS TO WORRY 24 WHY I'M BEING SUSPECTED OF SOMETHING I KNOW I DIDN'T 25 DO, AND SOMEONE HAS SAID THEY SAW ME WHEN THEY DIDN'T 26 BECAUSE I WASN'T THERE, AND THEY'LL THINK THAT SOME 27 SORT OF MISTAKE HAS BEEN MADE OR SOMEONE IS TRYING TO 28 SET THEM UP. THEY'RE VERY UNLIKELY TO THINK THAT THE <<< Page 18 >>>

20 17 1 POLICE ARE LYING TO THEM. 2 SO THE EVIDENCE PLOYS THE POLICE WILL USE 3 WILL COME ONE AFTER ANOTHER. WE'VE GOT AN EYEWITNESS 4 WHO SAW YOU LEAVE THE VICTIM'S APARTMENT. YOUR DNA WAS 5 FOUND IN THE VICTIM'S APARTMENT OR THERE'S A -- 6 REMEMBER THAT HAIR SAMPLE THAT YOU GAVE ME AN HOUR AGO? 7 WELL, WE SENT IT DOWN TO OUR LAB, AND IT MATCHES A HAIR 8 FOUND ON THE VICTIM'S BODY, AND THAT COULD BE ENTIRELY 9 MADE UP. 10 OR IT COULD BE WE'VE GOT THIS SCIENTIFIC 11 TEST THAT WILL PROVE THAT YOU COMMITTED THE CRIME, AND 12 I'VE SEEN INTERROGATORS HAVE THE FREEDOM TO BE 13 CREATIVE. I'VE SEEN INTERROGATORS INVENT THE FACT THAT 14 THEY HAD SATELLITE PHOTOS THAT SHOWED THE PERSON IN THE 15 BACKYARD OF THE VICTIM THAT JUST HAPPENED TO BE A 16 SATELLITE FLYING OVERHEAD, OR EVEN THAT WHEN THE 17 AUTOPSY IS COMPLETE AND WE'VE REMOVED THE LENSES FROM 18 THE VICTIM'S EYES, THE LAST THING THAT THE VICTIM SAW 19 WILL BE RETAINED IN THE LENS AND IT'S GOING TO BE YOUR 20 PICTURE. 21 OR THEY CAN USE SOME PSEUDO SCIENTIFIC 22 DEVICE LIKE A COMPUTERIZED VOICE STRESS TEST AND CLAIM 23 THAT JUST BY HAVING SOMEBODY ANSWER SOME QUESTIONS AND 24 RUNNING IT THROUGH A COMPUTER, WHICH OF COURSE IS 25 NOTHING BUT A SIMPLE MACHINE, SOMEHOW THEY CAN TELL 26 WHEN SOMEBODY IS TELLING THE TRUTH OR NOT. 27 OR THEY MAY USE THE POLYGRAPH AND TELL 28 SOMEBODY, WELL, THE POLYGRAPH IS ABSOLUTELY UNBEATABLE,

21 <<< Page 19 >>> 18 1 IT'S A HUNDRED PERCENT ACCURATE, AND IN FACT THE 2 POLYGRAPH HAS A BIG ERROR TERM, AND IN FACT USUALLY THE 3 WAY POLYGRAPH IS USED IN THE CONTEXT OF INTERROGATION 4 IS AS AN INFLUENCE DEVICE TO TRY TO CONVINCE SOMEBODY 5 THAT THEIR SITUATION IS HOPELESS. 6 THEY GIVE THEM A POLYGRAPH AND TELL THEM 7 THAT THEY'VE FLUNKED, TRYING TO GET THE PERSON TO 8 BELIEVE WE HAVE A MACHINE THAT READS YOUR UNCONSCIOUS, 9 AND THAT UNCONSCIOUS WILL REVEAL THAT YOU COMMITTED THE 10 CRIME. 11 NOW, SOMETIMES A POLYGRAPH RESULT CAN BE 12 IN ERROR AND THE PERSON TOLD THAT THEY FLUNKED. 13 SOMETIMES POLYGRAPHERS ARE SIMPLY INSTRUCTED TO TELL 14 SUSPECTS THAT THEY FLUNKED WHEN THEY DIDN'T. 15 SOMETIMES THE TEST CAN BE ACCURATELY 16 INTERPRETED, BUT POLYGRAPH ITSELF HAS AN ERROR TERM 17 BUILT INTO IT. IT OVER ESTIMATES DECEPTIVENESS. 18 THE MISTAKES THE POLYGRAPH MACHINES MAKE 19 IN THE WAY THEY'RE INTERPRETED IS THEY'RE LIABLE TO GET 20 PEOPLE DIAGNOSED, CLASSIFIED AS DECEPTIVE WHEN IN FACT 21 THEY'RE TELLING THE TRUTH AND THEY'RE VERY SENSITIVE. 22 IF SOMEBODY IS UPSET, IF SOMEBODY THINKS 23 THEY'RE UNDER SCRUTINY, THAT ALONE CAN BLOW THE 24 VALIDITY OF THE POLYGRAPH RESULT, BECAUSE SOMEBODY IS 25 JUST SO UPSET THAT YOU CAN'T GET A STRAIGHT READ ON 26 THEM. SO POLYGRAPH IS A VERY POWERFUL TOOL, AND IT'S

22 27 ONE OF THESE INFLUENCE DEVICES. 28 NOW, LOOK AT WHAT HAPPENS. THE PERSON IS <<< Page 20 >>> -1-i 1 TOLD WE'VE GOT AN EYEWITNESS, MAYBE WE HAVE BIOLOGICAL 2 EVIDENCE, MAYBE YOU FLUNKED THIS TEST. THE PERSON'S 3 CONFIDENCE STARTS TO ERODE. AS THEY'RE TOLD ABOUT ALL 4 THIS, AND AS THIS IS USED IN INTERROGATION, EACH TIME 5 THE INTERROGATOR REVEALS SOME PIECE OF -- SOME EVIDENCE 6 PLOY, HE'S LIABLE TO GO BACK SO WE HAVE A, WE HAVE B, 7 WE HAVE C, WE HAVE ALL OF THESE THINGS, YOUR FATE IS 8 DETERMINED. I KNOW YOU DID IT. I'M PERSONALLY 9 CONVINCED THAT YOU DID THIS BECAUSE I'VE SEEN ALL THIS 10 EVIDENCE, EVEN IF THE EVIDENCE IS ENTIRELY MADE UP. 11 THE INTERROGATOR TRIES TO KIND OF STAND 12 FOR THE WAY IN WHICH THE CRIMINAL JUSTICE SYSTEM WORKS. 13 WHAT HAPPENS HERE BETWEEN YOU AND ME IS GOING TO 14 DETERMINE YOUR WHOLE FUTURE. I'M WILLING TO BELIEVE 15 THAT YOU DIDN'T DO THIS, BUT I'VE SEEN THIS EVIDENCE, 16 I'VE SEEN THIS EVIDENCE, I'VE SEEN THIS EVIDENCE, I'VE 17 SEEN IT ALL, AND IT CONVINCES ME THAT YOU DID IT, AND 18 IT'S GOING TO CONVINCE THE PROSECUTOR AND IT'S GOING TO 19 CONVINCE THE JUDGE, AND IT'S GOING TO CONVINCE THE 20 JURY. YOUR SITUATION IS PRETTY MUCH HOPELESS. 21 NOW, FOR THE PERSON WHO KNOWS THEY 22 COMMITTED THE CRIME, AND LET'S SAY TWO OF THESE FOUR 23 PIECES OF EVIDENCE ARE TRUE AND THEY'VE ACCEPTED THE 24 OTHER TWO --

23 25 Q. BY MS. HARRIS: THERE'S ANOTHER MARKER 26 BEHIND YOU UP THERE ON THE LEDGE. 27 A. AND THEY'VE ACCEPTED THE OTHER TWO, THEY 28 CAN FEEL THAT THEY'RE CAUGHT, AT WHICH POINT SOMETIMES <<< Page 21 >>> 20 I PEOPLE WILL SAY, "OKAY, I DID IT." 2 IF THE INTERROGATOR HAS DEVELOPED RAPPORT, 3 IF THE PERSON KNOWS THEY COMMITTED THE CRIME, IF THEY 4 KNOW THAT THEY LEFT THEIR WALLET IN THE VICTIM'S 5 APARTMENT OR THEY, YOU KNOW, HAVE A GOOD REASON TO 6 BELIEVE THAT THE EVIDENCE THAT'S CLAIMED IS TRUE, THEY 7 CAN GET SO HOPELESS THAT THEY CAN SAY, "OKAY, I DID 8 IT," WITHOUT ANYTHING ELSE. 9 BUT USUALLY THAT'S NOT ALL THAT HAPPENS. 10 USUALLY WHEN THE INTERROGATOR HAS USED EVERYTHING IN 11 HIS ARSENAL AND HE FEELS THAT THE SUSPECT IS -- HAS 12 GOTTEN AS LOW AS HE CAN GET, HE'S NOW GOING TO TRY TO 13 MOTIVATE THE SUSPECT WE BEGIN AT THIS POINT TO GET A 15 REFOCUS, A REFOCUSING OF WHAT THE INTERROGATOR TALKS 16 ABOUT ON TO THE SUBJECT OF MOTIVATION. NOW THAT YOU 17 KNOW WE'VE GOT YOU, YOU SHOULD ADMIT IT. 18 SOMETIMES THE LOW END MOTIVATORS, THE 19 WEAKEST KINDS OF MOTIVATORS WILL BE DO THE RIGHT THING. 20 BE A MAN ABOUT IT. I TREATED YOU DECENTLY. I TREATED 21 YOU FAIRLY. HAVE I YELLED AT YOU? HAVE I DONE THIS? 22 COME ON, I KNOW YOU DID IT, ADMIT IT.

24 23 APPEALS TO KIND OF FACING ME, APPEALS TO 24 BE A MAN ABOUT IT OR APPEALS TO YOU'RE NOT A BAD 25 PERSON. I KNOW YOU DID THIS, JUST ADMIT YOU DID IT, BE 26 DECENT ABOUT IT, APPEALS TO KIND OF REJOIN THE MORAL 27 COMMUNITY THAT YOU'VE SLIPPED OUT OF. 28 SOMETIMES THOSE APPEALS TO PRESENTATION OF <<< Page 22 >>> 1 SELF, TO SHOW YOURSELF TO BE A BETTER PERSON THAN YOU 2 MIGHT OTHERWISE APPEAR. THOSE CAN BE EFFECTIVE. THEY 3 CAN ACTUALLY LEAD PEOPLE WHO KNOW THEY COMMITTED THE 4 CRIME TO SAY, "OKAY, I DID IT." TO GIVE UP, SAY, "1 5 DID IT." 6 THEY'RE NOT LIKELY TO PRODUCE FALSE 7 CONFESSIONS BECAUSE THE PERSON WHO'S INNOCENT IS STILL 8 STRUGGLING WITH THE FACT -- NONE OF THIS, THIS CAN'T BE 9 REAL BECAUSE I DIDN'T DO IT. I WASN'T THERE. I WAS 10 SOMEPLACE ELSE. I WAS WITH MY GIRLFRIEND THAT NIGHT, 11 AND THE INTERROGATOR HAS SAID, OH, NO, WE TALKED TO 12 YOUR GIRLFRIEND, AND SHE SAID YOU WERE WITH HER TUESDAY 13 NIGHT, NOT WEDNESDAY NIGHT, AND JUST MADE UP THE 14 DESTRUCTION OF THE ALIBI WHATEVER -- WHATEVER THE SUSPECT COMES 16 UP WITH, THE INTERROGATOR IS GOING TO TELL HIM, NO, IT 17 DOESN'T WORK AND COME UP WITH SOME REASON WHY 18 EVERYTHING THAT THE SUSPECT SAYS DOESN'T MEAN ANYTHING, 19 AND EVERYTHING THAT THE INTERROGATOR CLAIMS IS ALL THAT 20 MATTERS. 21 IF LOW END MOTIVATORS DON'T WORK, THE 22 INTERROGATOR --

25 23 MS. HARRIS: YOUR HONOR, MAY I APPROACH? 24 THE COURT: YES. 25 Q. BY MS. HARRIS: DR. OFSHE, THERE'S ONE UP 26 HERE. 27 A. I THINK IT'S WORKING. THAT'S WHY I CLOSED 28 THIS UP. THEY DRY OUT. <<< Page 23 >>> 22 1 IF THE LOW END MOTIVATORS DON'T WORK, THE 2 INTERROGATOR IS LIABLE TO -- TO TRY TO REFOCUS THE 3 SUSPECT'S THINKING ON WHAT I'LL CALL SYSTEMIC BENEFITS 4 FOR CONFESSION. 5 WHAT HE'LL TRY TO DO, AND I'M IMPOSING A 6 KIND OF LOGICAL ORDER ON HOW THIS GOES. IN REALITY 7 IT'S NOT THIS ORDERLY. 8 BUT THE NEXT THING UP THE SCALE, IF YOU'RE 9 GETTING RESISTANCE AT THE DO THE RIGHT THING LEVEL, 10 THEN THE NEXT THING YOU'RE GOING TO DO IS, HEY, YOU'VE 11 GOT TO GET YOUR STORY OUT. DO YOU REALLY WANT TO GO 12 INTO THE COURTROOM AND TELL THE JUDGE AND THE JURY THAT 13 LINE OF NONSENSE THAT YOU'VE BEEN TELLING ME THAT'S 14 CONTRADICTED BY ALL OF THESE FACTS? YOU'D BETTER SHOW 15 REMORSE AND YOU'D BETTER DO IT NOW. 16 THE IDEA IS TO GET THE PERSON THINKING 17 ABOUT THE FUTURE, AND WITHOUT PROMISING ANYTHING, 18 WITHOUT SAYING IT, WITHOUT IMPLYING THAT THERE'S A BIG 19 BENEFIT DOWN THE ROAD, GET THE SUSPECT TO THINK ABOUT 20 THE FUTURE AND COME TO THE CONCLUSION THAT THEY'RE

26 21 BETTER OFF BY CONFESSING. 22 YOU KNOW, THINK ABOUT HOW IT ALL WORKS. 23 THINK WHAT IT'S GOING TO BE LIKE IN THE COURTROOM WHEN 24 YOU FACE THE JUDGE AND THE JURY. 25 BY DOING THAT, WHAT THEY'RE TRYING TO DO 26 IS INTRODUCE THE IDEA THAT IF YOU REMAIN SILENT, YOU'RE 27 GOING TO BE WORSE OFF IN THE FUTURE. WHEREAS IF YOU 28 SHOW REMORSE, IF YOU TELL YOUR SIDE OF THE STORY, <<< Page 24 >>> 23 1 THERE'S GOT TO BE TWO SIDES TO THIS STORY, SOMEHOW IN A 2 VAGUE WAY THAT'S GOING TO BE BETTER FOR YOU. 3 THE OBJECT HERE WHEN DEALING WITH THIS 4 LEVEL IS TO KEEP IT VAGUE, BECAUSE WHAT POLICE ARE 5 TRAINED NOT TO DO, WHAT THEY'RE SUPPOSED TO NOT DO IS 6 THREATEN PEOPLE WITH HARM IF THEY REMAIN SILENT OR 7 PROMISE THEM EITHER DIRECTLY OR INDIRECTLY. S IMPLIED PROMISES, REASONABLE INFERENCES 9 FROM WHAT PEOPLE HEAR, PROMISE THEM LENIENCY. SO THE 10 MORE EXPLICIT THE CONSEQUENCES OF GIVING THE CONFESSION 11 AT THIS MOMENT VERSUS REMAINING SILENT ARE MADE, THE 12 MORE EXPLICIT THOSE THINGS ARE MADE, THE MORE THE 13 INTERROGATOR IS IN THE DANGER, IN DANGER OF COERCING A 14 STATEMENT FROM SOMEBODY. 15 NOW, COERCING A STATEMENT MEANS MOTIVATING 16 THE PERSON BY THREAT OF HARM OR OFFER OF LENIENCY. IF 17 YOU THREATEN SOMEBODY -- AND THAT'S AGAINST THE RULES. 18 WE DON'T PLAY BY THOSE RULES IN THIS SOCIETY.

27 19 WE DON'T COMPEL PEOPLE TO MAKE STATEMENTS 20 AGAINST THEMSELVES, WHETHER TRUE OR FALSE, YOU'RE NOT 21 SUPPOSED TO DO THAT. SO, FOR EXAMPLE, IF SOMEBODY 22 SAYS, IF AN INTERROGATOR WERE TO SAY, LOOK, THE WAY 23 THINGS ARE, ALL THESE FACTS ARE GOING TO LEAD TO YOUR 24 BEING CHARGED WITH PREMEDITATED MURDER, AND YOU KNOW 25 THAT THIS IS A STATE THAT DOES CAPITAL PUNISHMENT, 26 THAT'S A DEATH THREAT. 27 WHAT'S BEING SAID IS IF YOU REMAIN SILENT, 28 ALL THIS IS GOING TO COME IN, YOU'RE GOING TO GET <<< Page 25 >>> 24 1 CHARGED WITH CAPITAL MURDER AND YOU'RE GOING TO GET 2 CONVICTED OF THAT. 3 BUT HE MIGHT NOW SAY THERE'S ANOTHER WAY, 4 AND NOW WHAT THE INTERROGATOR MAY DO, AND THERE'S A 5 PARTICULAR NAME FOR THIS STRATEGY, IT'S CALLED 6 MAXIMIZATION/MINIMIZATION. 7 ON THE ONE HAND, EMPHASIZE IF YOU REMAIN 8 SILENT, YOU'RE GOING TO SPEND THE REST OF YOUR LIFE IN 9 JAIL, YOU'RE GOING TO GET A DEATH PENALTY, THE WORST 10 POSSIBLE OUTCOME. 11 BUT, AND NOW THE INTERROGATOR MAY SUGGEST 12 IF THIS WAS SELF-DEFENSE, IF THE GUN WENT OFF 13 ACCIDENTALLY, IF YOU DIDN'T MEAN TO DO THIS, IF IT'S 14 NOT A PREMEDITATED MURDER, THEN YOU'RE BETTER OFF. AND ON THE ONE HAND THE PERSON IS TOLD SILENCE LEADS TO 16 THE DEATH PENALTY, AND IF -- AND SOMETIMES

28 17 INTERROGATORS WILL LITERALLY SAY, YOU KNOW, WHAT I 18 THINK REALLY HAPPENED WAS I THINK SOMETHING WAS GOING 19 ON HERE, AND SOMEHOW A FIGHT BROKE OUT AND HE WENT FOR 20 HIS GUN AND YOU HAD TO DEFEND YOURSELF, AND THIS WAS 21 JUST SELF-DEFENSE. WELL, YOU KNOW, SELF-DEFENSE IS NOT 22 EVEN NECESSARILY A CRIME, AND IF THIS IS SELF-DEFENSE, 23 WELL, MAYBE YOU CAN GO HOME WHEN THIS IS OVER THE INTERROGATOR SETS UP TWO 25 ALTERNATIVES. ALTERNATIVE ONE ASSOCIATED WITH 26 REMAINING SILENT IS THE INEVITABILITY OF A DEATH 27 PENALTY OR OF LIFE IN PRISON; ALTERNATIVE TWO, 28 ASSOCIATED WITH TELLING A STORY THAT THE INTERROGATOR <<< Page 26 >>> 25 1 SUGGESTS HE'S WILLING TO BELIEVE IS ASSOCIATED WITH 2 LITTLE OR NO PUNISHMENT. 3 BECAUSE THE CRIME GETS DESCRIBED AS 4 SOMETHING THAT MAY NOT BE A CRIME BY CHANGING THE 5 FACTS, BY SAYING, HEY, HE TOOK OUT A GUN, HE WAS 6 GETTING READY TO SHOOT YOU. LIKELY HIS GUN MISFIRED 7 AND THAT GAVE YOU TIME TO DEFEND YOURSELF AND SHOOT 8 BACK AND YOU WERE JUST TRYING TO SAVE YOUR LIFE. 9 WHEN THE INTERROGATOR SUGGESTS SOMETHING 10 LIKE THAT, WHAT HE'S DOING IS SAYING IN EFFECT I'M 11 WILLING TO BELIEVE THIS STORY, AND SINCE I HAVE TO MAKE 12 THE DETERMINATION ABOUT THE CHARGE, IF I BELIEVE

29 THIS 13 STORY AND YOU GET CHARGED WITH SOME LOW LEVEL OF CRIME 14 OR THIS GETS CLASSIFIED AS SELF-DEFENSE, YOU'RE GOING 15 TO GET LITTLE OR NO PUNISHMENT. 16 NOW WHAT HAS BEEN SET UP IS A VERY VERY 17 VERY DANGEROUS SITUATION. BECAUSE NOW THE PERSON WHOSE 18 BEEN THROUGH ALL OF THIS, WHOSE BEEN TOLD THERE'S ALL 19 THIS EVIDENCE AGAINST YOU IS NOW BEING PUT IN A 20 POSITION WHERE THEY LITERALLY HAVE TO CHOOSE, BECAUSE 21 IF YOU DON'T DO ANYTHING, I'M GOING TO GET UP AND WALK 22 OUT OF HERE AND THAT'S IT, AND YOU'RE IN FACT CHOOSING 23 TO REMAIN SILENT, AND THEN I'M GOING TO DO WHAT I'VE 24 BEEN TELLING YOU I'M GOING TO DO AND YOU'RE GOING TO 25 GET CHARGED ACCORDINGLY THEY'RE LITERALLY FORCED TO CHOOSE 27 EITHER BY REMAINING SILENT OR BY GOING ALONG WITH WHAT 28 THE INTERROGATOR HAS PRESENTED AS THE WAY OUT. <<< Page 27 >>> 26 1 NOW, IF' THE PERSON COMMITTED THE CRIME, 2 THAT LOOKS LIKE A GREAT DEAL. IF THE PERSON DIDN'T 3 COMMIT THE CRIME, IT ALSO LOOKS LIKE A GREAT DEAL, 4 BECAUSE IF YOU'VE BEEN TOLD WE'VE GOT ALL THIS EVIDENCE

30 5 AND YOU'RE HISTORY AND THIS IS WHAT'S GOING TO HAPPEN, 6 IT DOESN'T MATTER ANYMORE WHETHER YOU DID THE CRIME OR.7 DIDN'T DO THE CRIME. BECAUSE THE ONLY CHOICE IN FRONT S OF YOU IS ARE YOU GOING TO DO SOMETHING RIGHT NOW RIGHT 9 THIS MOMENT TO SAVE YOUR LIFE, AND I'VE LAID OUT FOR 10 YOU WHAT YOU HAVE TO DO. 11 AT THAT POINT PEOPLE, SOME PEOPLE WHO ARE 12 INNOCENT IN PANIC, TERRIFIED, WILL GO ALONG WITH WHAT 13 THE INTERROGATOR SUGGESTS. IT'S EXTREMELY DANGEROUS, 14 AND THAT'S WHY INTERROGATORS ARE NOT SUPPOSED TO DO 15 THAT. BUT IT DOES IN FACT HAPPEN. 16 Q. BY MS. HARRIS: DR. OFSHE, NOW, IN THIS 17 SCENARIO, MAXIMIZATION/MINIMIZATION, HAVE YOU SEEN THAT 18 ACTUAL METHOD USED OR ENCOURAGED IN VARIOUS TRAINING 19 MANUALS OF INTERROGATION SCHOOLS AROUND THE COUNTRY? 20 A. IN ONE IN PARTICULAR, AND IT'S THE MOST 21 INFLUENTIAL, AND IT'S MODELED, THIS METHOD IS MODELED 22 BY SOME POLICE AGENCIES. I COULD ACTUALLY READ TO YOU 23 FROM THE TEXTBOOK THE DESCRIPTION OF HOW THIS IS DONE. 24 Q. WHICH SCHOOL WOULD THAT BE FROM? 25 A. REID, REID ASSOCIATES IN CHICAGO PROMOTE 26 THIS, AND L.A.P.D. MODELS THEIR TRAINING AFTER THIS. 27 Q. NOW, YOU SAY THAT BECAUSE YOU ACTUALLY 28 REVIEWED THEIR MATERIALS YOURSELF? <<< Page 28 >>> 27 1 A. I'VE REVIEWED THE REID TEXTBOOK, I'VE 2 REVIEWED THEIR TRAINING METHOD, I'VE SEEN THIS IN

31 3 OPERATION ALL OVER THE COUNTRY, LITERALLY FROM MIAMI, 4 FLORIDA TO BARROW, ALASKA. SOMETIMES BY REID TRAINED 5 INVESTIGATORS AND SOMETIMES BY PEOPLE WHOSE DEPARTMENTS 6 HAVE PICKED UP THIS METHOD. THIS IS A VERY VERY 7 POWERFUL METHOD. IT'S SO POWERFUL THAT IT'S DANGEROUS. S Q. WHY IS IT DANGEROUS? 9 A. BECAUSE IF YOU'RE DESPERATE AND YOU'RE 10 INNOCENT AND YOU THINK THE ONLY WAY TO SAVE YOUR LIFE 11 IS TO GO LONG WITH WHAT THE INTERROGATOR PRESENTS TO 12 YOU, BECAUSE YOU'VE BEEN TOLD ALL THIS STUFF, NONE OF 13 WHICH MAY BE TRUE, AND YOU'RE TIRED AND YOU'RE ANXIOUS 14 AND YOU'RE SCARED, YOU MAY GRAB AT IT AND SAY, OKAY, I 15 DID IT, BECAUSE YOU'RE LOOKING AT A SITUATION WHERE 16 YOU'VE BEEN MADE TO FEEL HOPELESS, AND ALL YOU CAN DO 17 IS MINIMIZE THE PUNISHMENT THAT YOU'RE EXPECTING TO 18 GET. 19 THIS IS THE METHOD THAT I SEE MOST OFTEN 20 IN PLAY IN CASES IN WHICH FALSE CONFESSIONS ARE 21 ELICITED FROM THE INNOCENT. 22 IF THAT HAPPENS AND THE PERSON HAS GOTTEN 23 TO SAY, "I DID IT, ALL WE KNOW AT THIS POINT IS THAT 24 SOMEHOW THE PERSON WAS MOTIVATED TO SAY, "I DID IT." 25 IF THE METHOD INVOLVED THE USE OF 26 COERCION, IT'S EXTREMELY DANGEROUS AND EVERYTHING THAT 27 HAPPENS AFTER THAT REQUIRES EXTREMELY CAREFUL SCRUTINY. 28 BECAUSE IF A PERSON HASN'T BEEN COERCED, THEY HAVEN'T <<< Page 29 >>> 28

32 1 BEEN THREATENED, IF THEY HAVEN'T BEEN OFFERED LENIENCY, 2 IT'S VERY UNLIKELY THAT SOMEONE WHO DIDN'T COMMIT THE 3 CRIME WILL SAY, "I DID IT,?? WHEREAS IF THE PERSON'S 4 VULNERABLE AND THEY'RE JUST PRESENTED WITH THIS AND 5 THEY'RE TOLD DO THE RIGHT THING, AND THEY SAY, "OKAY, 6 DID IT," THERE'S LITTLE REASON TO THINK THAT SOMEONE 7 UNDER THAT SCENARIO IS LIABLE TO GIVE A FALSE 8 CONFESSION, BUT IF COERCION IS INVOLVED, THEN THAT 9 POSSIBILITY HAS GOT TO BE SERIOUSLY CONSIDERED FROM 10 THAT MOMENT - - FROM THIS MOMENT ON. 11 ONCE YOU SEE THESE KINDS OF THREATS IN 12 PLAY, THE POSSIBILITY THAT SOMEBODY WHO WASN'T THERE, 13 WHO IS DESPERATE TO SAVE THEIR LIVES HAS NOW SAID, 14 "OKAY, I DID IT," HAS GOT TO BE CONSIDERED. 15 POLICE ARE TRAINED. AFTER YOU GET 16 SOMEBODY MOTIVATED TO SAY, "I DID IT," NOW GET DOWN TO 17 THE REAL WORK OF THE INTERROGATION. THE REAL WORK IS 18 TO COLLECT THE POST ADMISSION NARRATIVE, THE STORY OF 19 THE CRIME. BECAUSE IF THIS IS DONE WELL, THEN IT 20 SHOULD PRODUCE INFORMATION THAT IS OBJECTIVELY 21 PROVABLE, THAT LINKS THE PERSON TO THE CRIME IN A WAY 22 THAT THEY WILL NEVER BE ABLE TO REPUDIATE. 23 NOW, EVERYBODY -- EVERY POLICE OFFICER IS 24 TRAINED AND EVERYBODY KNOWS THAT THE ONE BIG QUESTION 25 IS, "WHERE'S THE MISSING MURDER WEAPON?" 26 SOMEBODY SAYS, "I DID IT." 27 SAY, "OKAY. WHERE'S THE GUN?" 28 AND THEY SAY, WELL, YOU GO OUT PAST, YOU <<< Page 30 >>>

33 29 1 KNOW, EXIT SUCH AND SUCH ON THE SANTA MONICA FREEWAY 2 AND THERE'S A CACTUS OVER THERE, AND BURIED BEHIND THE 3 CACTUS YOU'LL FIND THE GUN. AND IF SOMEBODY GOES OUT 4 AND FINDS THE GUN THERE, BINGO. THAT'S AS POWERFUL 5 OBVIOUSLY AS A DNA HIT, ONE IN A BILLION CHANCES OF 6 GUESSING THAT? 7 50 POLICE ARE TRAINED TO LOOK FOR 8 CORROBORATION. WHERE'S THE MISSING MURDER WEAPON? 9 WHERE'S THE MISSING LOOT? PARTICULARLY CORROBORATION 10 ABOUT THINGS THAT THE POLICE DON'T ALREADY KNOW, 11 BECAUSE IF YOU CAN GET THE SUSPECT TO CONTRIBUTE 12 INFORMATION THAT THE POLICE DON'T ALREADY KNOW, THERE'S 13 NO POSSIBILITY THAT THE SUSPECT HAS BEEN CONTAMINATED 14 EITHER FROM -- WELL, CERTAINLY NO POSSIBILITY OF THERE 15 BEING CONTAMINATED FROM THE POLICE. 16 VERY OFTEN WHAT HAPPENS IS THAT THERE MAY 17 BE ONE OR MORE MINI INTERROGATIONS, INTERVIEWS THEY'RE 18 SOMETIMES CALLED, OF A PERSON BEFORE THEY GET HIM IN 19 AND TURN ON THE TAPE RECORDER AND DO THE FORMAL 20 INTERROGATION, SO WE DON'T REALLY KNOW WHAT WAS 21 DISCUSSED. 22 THERE'S ALSO THE POSSIBILITY THAT SOMEBODY 23 COULD PICK UP INFORMATION FROM THE COMMUNITY. ALL OF 24 THESE ARE POSSIBLE SOURCES OF CONTAMINATION IN -- IN GETTING A POST ADMISSION 26 NARRATIVE, WHAT A POLICE OFFICER NEEDS TO DO IS TO TRY 27 TO GET INFORMATION THAT CAN BE OBJECTIVELY VERIFIED 28 THAT IS OF SUFFICIENT DETAIL THAT IT IS IN ALL

34 <<< Page 31 >>> 30 1 LIKELIHOOD ONLY KNOWN BY THE PERPETRATOR AND IDEALLY 2 INFORMATION THAT ISN'T EVEN KNOWN TO THE POLICE, 3 BECAUSE THEN YOU KNOW THAT THIS PERSON HAS ACTUAL 4 KNOWLEDGE OF THE CRIME. YOU KNOW THAT THEY'RE INVOLVED 5 IN IT IN SOME WAY IF THEY CAN TELL YOU WHERE TO FIND 6 THE MISSING WEAPON POLICE WILL TRY TO GET THE STORY OF THE 8 CRIME. TELL ME EXACTLY WHAT HAPPENED. IF THEY DO IT 9 RIGHT, WHAT THEY'LL DO IS ASK FOR INFORMATION. START 10 FROM THE BEGINNING, TELL ME HOW IT HAPPENED. 11 USUALLY A MURDER SCENE HAS LOTS OF DETAILS 12 ABOUT IT THAT LEAVE AN OBJECTIVE RECORD. THE -- IT MAY 13 BE THAT THE VICTIM WAS -- PART OF HER CLOTHING RIPPED 14 OFF. THE VICTIM WAS DRESSED IN A CERTAIN WAY. THE 15 FIGHT HAPPENED IN THE LIVING ROOM AND IT'S A FOUR ROOM 16 OR FIVE ROOM APARTMENT, COULD HAVE HAPPENED ANYPLACE. 17 IN THE ROOM IN WHICH THE FIGHT HAPPENED, THE COFFEE 18 TABLE WAS NOT ONLY KNOCKED OVER BUT ONE LEG WAS BROKEN. 19 THERE, THAT, ALL SORTS OF WHAT I'LL CALL MUNDANE 20 DETAILS ABOUT THE CRIME THAT THE PERSON WHO WAS THERE 21 WHO COMMITTED THE CRIME WOULD IN ALL LIKELIHOOD KNOW. 22 NOW, IF THE PERSON DO THE JOB RIGHT, 23 THEY'LL START TELL ME WHAT HAPPENED. AT THIS POINT IF 24 WE HAVE A COMPLETE RECORD OF WHAT'S SAID, IT OUGHT TO 25 BE POSSIBLE TO GO THROUGH THAT RECORD AND LOOK TO SEE 26 WHAT DOES THE SUSPECT GET RIGHT AND WHAT DOES THE

35 27 SUSPECT GET WRONG. WHAT'S THE SUSPECT'S FIRST ANSWER 28 WHEN ASKED A QUESTION? <<< Page 32 >>> 31 1 NOW, WE KNOW THAT SOMETIMES PEOPLE DON'T 2 WANT TO ADMIT TO THINGS THAT ARE PARTICULARLY AWFUL. 3 RICHARD ALLEN DAVIS, FOR EXAMPLE, WOULD ADMIT THAT HE 4 KIDNAPPED POLLY KLASS, THAT HE KILLED POLLY KLASS, BUT 5 HE DIDN'T WANT TO ADMIT THAT HE RAPED POLLY KLASS THERE ARE SOME KINDS OF THINGS THAT 7 WHERE IT COULD BE SAID THAT PEOPLE DON'T WANT TO ADMIT 8 THAT. BUT THE COLOR OF THE VICTIM'S SHIRT IS NOT IN 9 THAT CLASS OF INFORMATION. THAT'S A MUNDANE DETAIL. 10 IF SOMEBODY HAPPENED TO BE WEARING A BRIGHT ORANGE 11 SHIRT AND THEY'RE THE VICTIM, IT'S PRETTY UNLIKELY THAT 12 SOMEBODY WHO SPENT SOME TIME WITH THEM AND KILLED THEM 13 WOULDN'T REMEMBER THAT THEY WERE WEARING THE BRIGHTEST 14 ORANGE SHIRT THAT ANYBODY HAD EVER SEEN. 15 OR OTHER DETAILS THAT ARE IMPROBABLE, 16 OBJECTIVELY VERIFIABLE AND IN ALL LIKELIHOOD WOULD HAVE 17 TO BE KNOWN BY THE SUSPECT. THAT'S WHAT THE 18 INTERROGATOR IS LOOKING FOR. HE'S LOOKING FOR THE 19 SUSPECT TO VOLUNTEER INFORMATION THAT SHOWS THAT THE 20 SUSPECT HAS ACTUAL KNOWLEDGE OF THE CRIME. 21 IF THE SUSPECT DOES THAT AND THE 22 INTERROGATOR GOES FOR THE KIND OF MUNDANE DETAILS THAT 23 I'M TALKING ABOUT, THE KIND OF DETAILS THAT ARE NOT 24 LIKELY TO BE THE SUBJECT OF COMMUNITY RUMOR, YOU KNOW,

36 25 NOT EVERYBODY IS GOING TO BE TALKING ABOUT THE FACT 26 THAT THE VICTIM WAS WEARING SANDALS AS OPPOSED TO 27 COWBOY BOOTS. GOES FOR THAT LEVEL OF DETAIL, THEN THE 28 SUSPECT CAN DEMONSTRATE THAT HE OR SHE HAS ACTUAL <<< Page 33 >>> KNOWLEDGE OF' THE CRIME, AND THAT SHOULD LEAD TO GIVING 2 WEIGHT TO THE "I DID IT" STATEMENT, BECAUSE IT LOOKS 3 LIKE THIS PERSON WAS THERE, THEY CAN DESCRIBE THE 4 DETAILS, AND THAT'S A REASON TO BELIEVE THAT THE PERSON 5 DID IT. IT CORROBORATES THE "I DID IT" STATEMENT. 6 BUT IF SOMEBODY DID NOT COMMIT THE CRIME 7 AND THE POLICE NOW BEGIN THIS PROCESS OF TRYING TO GET 8 THE POST ADMISSION NARRATIVE, WHAT'S LIABLE TO HAPPEN 9 AT THIS POINT, ESPECIALLY IF THEY TRY TO DO THEIR JOB 10 RIGHT AND GO FOR DETAILS, THEY'RE LIABLE TO NOW REVEAL 11 THAT THE PERSON DOESN'T HAVE THE KNOWLEDGE THAT THE 12 PERPETRATOR SHOULD HAVE. 13 FOR EXAMPLE, CASE I WORKED ON A YOUNG MAN 14 WAS MADE TO CONFESS TO BEING PRESENT WHEN TWO OTHER 15 BOYS KILLED THREE EIGHT YEAR OLDS. AND HE'D BEEN 16 WORKED OVER IN AN INTERROGATION FOR A NUMBER OF HOURS, 17 AND HE WAS FINALLY GOTTEN TO SAY, "I DID IT," AND AT 18 THAT POINT, AND THIS IS IN ARKANSAS, THEY TURN ON THE 19 TAPE RECORDERS TO GET THE POST ADMISSION NARRATIVE.

37 20 AND THEY ASK HIM, "NOW, WHEN DID ALL THIS 21 HAPPEN?" 22 AND THE BOY, JESSE MISKELLEY, SAID, "OH, 23 IT HAPPENED ABOUT 9 O'CLOCK IN THE MORNING." 24 PROBLEM THESE THREE CHILDREN DIDN'T 25 DISAPPEAR UNTIL 6 O'CLOCK IN THE EVENING, THEY WERE IN 26 SCHOOL AT 9 O'CLOCK IN THE MORNING. 27 HE SHOWED A HUGE ERROR. HOW COULD YOU 28 HAVE TAKEN PART IN A KIDNAPPING AND KILLING THAT <<< Page 34 >>> 33 1 HAPPENED IN THE EVENING AND THINK THAT IT HAPPENED AT 2 9 O'CLOCK IN THE MORNING? 3 UNFORTUNATELY, THE POLICE OFFICERS WHO HAD 4 JUST COERCED THE "I DID IT" STATEMENT FROM JESSE DID 5 NOT CARE ABOUT THE FACT THAT HE HAD NOW SHOWN LACK OF 6 ACTUAL KNOWLEDGE OF THE CRIME. WHAT THEY DID WAS GO 7 BACK TO THE SUBJECT OF WHAT TIME DID THIS HAPPEN, I 8 FORGET WHETHER IT WAS SIX OR EIGHT SEPARATE TIMES OVER 9 THE COURSE OF THE RECORDED POST ADMISSION NARRATIVE, 10 CONSTANTLY SUGGESTING TO JESSE THAT IT WAS REALLY 11 LATER, IT WAS LATER, IT WAS LATER, IT WAS LATER, UNTIL 12 THEY GOT HIM SAYING SOMETHING THAT AGREED WITH THE 13 FACTS OF THE CRIME. 14 NOW, THAT'S NOT WHAT HE SAID INITIALLY. 15 IT'S WHAT THEY PRODUCED IN THE POST ADMISSION PHASE OF 16 THE INTERROGATION WHICH WAS COMPLETELY TAPE RECORDED.

38 17 50 WE KNOW THAT HIS FIRST STATEMENT WAS 18 WRONG, WE KNOW THAT THE POLICE WOULD NOT ACCEPT THIS, 19 THEY JUST WANTED TO GET A STORY THAT LOOKED LIKE IT FIT 20 THE FACTS OF THE CRIME, WHICH MAKES YOU WONDER WHETHER 21 THEY CARED WHETHER HE COMMITTED THE CRIME OR NOT. 22 THIS IS WHAT HAPPENS IN THE POST ADMISSION 23 NARRATIVE. THE THINGS TO LOOK FOR, WHAT DOES THE 24 PERSON FIRST SAY? DO THEY GIVE SOMETHING ACCURATELY IN 25 THE BEGINNING? AND IF THEY GIVE SOMETHING 26 INACCURATELY, DO THE POLICE LEAVE IT THERE OR DO THEY 27 TRY TO FIX IT? BECAUSE IF THEY TRY TO FIX IT, THAT 28 TELLS YOU SOMETHING ABOUT WHETHER THEY'RE MORE <<< Page 35 >>> 34 1 CONCERNED ABOUT GETTING A STORY THAT COULD BE PRESENTED 2 TO A JURY OR CATCHING THE PERSON WHO COMMITTED THE 3 CRIME. 4 THE OTHER THING IS WHAT'S THE NATURE OF 5 THE INFORMATION THAT'S ASKED ABOUT? IF IT ISN'T 6 INFORMATION THAT MAKE THE PERSON LOOK MORE AWFUL THAN 7 THEY'VE ALREADY ADMITTED TO LOOKING, THEN YOU'VE GOT TO 8 FIGURE OUT, WELL, WHY WOULDN'T THEY GIVE THE RIGHT 9 ANSWER, ESPECIALLY IF THE PERSON HAS BEEN COERCED. 10 SIMPLY BECAUSE LET'S SAY YOU'VE BEEN 11 THREATENED WITH THE DEATH PENALTY AND OFFERED A WAY OUT 12 IF YOU JUST SAY YOU DID IT. LET'S SAY YOU KNOW YOU 13 COMMITTED THE CRIME. YOU THINK YOU'RE GETTING A DEAL. 14 YOU'RE MOTIVATED TO TELL THE POLICE OFFICER EVERYTHING

39 15 YOU KNOW BECAUSE YOU WANT THE DEAL. THAT'S WHY YOU 16 ADMITTED YOU DID IT IF YOU KNOW IT, YOU OUGHT TO GIVE THAT 18 INFORMATION. YOU OUGHT TO SAY HE WAS WEARING THE 19 BRIGHTEST ORANGE SHIRT I EVER SAW IN MY LIFE, HE WAS 20 WEARING SANDALS AND HE WAS WEARING BERMUDA SHORTS, 21 PLAID. IT WAS A HORROR TO BEHOLD. 22 AND IF ALL THAT'S TRUE, YOU'RE TELLING THE 23 POLICE OFFICER I KNOW SOMETHING ABOUT WHAT THIS CRIME 24 SCENE WAS LIKE. BECAUSE THERE'S NOTHING EMBARRASSING 25 ABOUT ADMITTING THAT THE OTHER GUY WAS DRESSED 26 HORRIBLY. 27 IF THE PERSON DOESN'T KNOW THE ANSWER, IF 28 THEY'RE REALLY INNOCENT, THEY'RE STILL MOTIVATED TO TRY <<< Page 36 >>> 35 1 TO PLEASE THE INTERROGATOR, BECAUSE THE INTERROGATOR 2 HAS SET HIMSELF UP AS THE PERSON WHO'S GOING TO SAVE 3 THE SUSPECT'S LIFE. I'M GOING TO DO YOU A FAVOR. I'M 4 HERE BECAUSE I CARE ABOUT YOU, I WANT TO GIVE YOU A 5 CHANCE, THIS IS WHAT I THINK HAPPENED, YOU KNOW. IT 6 MAKES A BIG DIFFERENCE, AND IF YOU JUST GO ALONG WITH 7 IT, YOU'RE GOING TO BE A LOT BETTER OFF. IF NOT FINE, 8 AND SO THE SUSPECT WANTS TO PLEASE THE INTERROGATOR, HE 9 WANTS TO PRESERVE THE DEAL EVEN THE PERSON WHO'S INNOCENT IS GOING 11 TO BE MOTIVATED TO COME UP WITH ACCURATE INFORMATION IF 12 HE'S GOT IT. BUT IF HE DOESN'T HAVE IT, HE'S LIABLE TO

40 13 MAKE MISTAKES IN LOOKING AT A POST ADMISSION 15 NARRATIVE, ONE WANTS TO LOOK AT IS THERE CORROBORATION? 16 HAS THIS PERSON VOLUNTEERED SOMETHING THAT THE POLICE 17 DON'T KNOW? IS THE PERSON ABLE TO GET INFORMATION THAT 18 WE KNOW WAS NOT GIVEN TO HIM IN SOME WAY THAT 19 CONTAMINATED HIM? 20 IT WASN'T TALKED ABOUT IN THE COMMUNITY, 21 IT WASN'T PUBLISHED IN THE NEWSPAPERS, AND IT WASN'T 22 TRANSFERRED IN AN EARLIER MEETING WITH THE POLICE. 23 AND SOMETIMES POLICE WILL KEEP A FACT 24 HIDDEN FROM THE PUBLIC ABOUT THE CRIME, SOME VERY 25 UNUSUAL ASPECT OF THE CRIME. THEY WILL MAKE A POINT OF 26 NOT LETTING THAT OUT SO THAT THE PERSON WHO COMMITTED 27 THE CRIME, IF AS OFTEN HAPPENS IN PROFILE -- IN HIGH 28 PROFILE CRIMES, SOMEBODY CALLS UP AND SAYS, HEY, I DID <<< Page 37 >>> 36 1 IT, I DID THIS CRIME, TO GET RID OF PEOPLE WHO WANT TO 2 GIVE FALSE CONFESSIONS, AND THERE ARE UNSTABLE PEOPLE 3 WHO WANT TO DO THAT. 4 YOU HOLD BACK SOME PARTICULARLY HORRIBLE 5 ASPECT OF THE CRIME AND SAY, WELL, TELL ME SOMETHING 6 ABOUT WHETHER OR NOT THE VICTIM WAS MUTILATED, AND THE 7 PERSON WHO WANTS TO GIVE A FALSE CONFESSION MAKES A 8 GUESS AND THE GUESS IS LIKELY TO BE WRONG. HENCE THE 9 POLICE KNOW IMMEDIATELY, WELL, DON'T PAY ANY ATTENTION 10 TO THIS PERSON.

41 11 BUT THE SAME PRINCIPLE WORKS FOR SOMEONE 12 WHOSE BEEN GOTTEN TO SAY I DID IT. SOMETIMES POLICE 13 WILL HOLD BACK A PIECE OF INFORMATION FOR THE PURPOSE 14 OF ALLOWING THE PERSON WHO THEY'VE INTERROGATED TO 15 DEMONSTRATE THAT THEY HAVE ACTUAL KNOWLEDGE, SUCH AS IN 16 A CASE IN ARIZONA IN WHICH A 14-YEAR-OLD GIRL WAS 17 MURDERED, ONE OF HER HIKING BOOTS WAS REMOVED, THE LACE 18 FROM THE HIKING BOOT WAS TAKEN OUT, HER HANDS WERE TIED 19 WITH THAT. ONE SOCK WHAT IS REMOVED AND THE SOCK WAS 20 USED AS A GAG. OBVIOUSLY THAT'S A SEQUENCE OF ACTIONS 21 THAT COULDN'T HAVE BEEN DONE BY ACCIDENT. IT'S NOT 22 LIKE STEPPING ON SOMEBODY'S TOE. WHOEVER DID IT KNEW 23 THEY DID IT AFTER HAVING GOTTEN SOMEBODY TO START 25 CONFESSING, THE POLICE KEEP LEADING HIM UP TO, WELL, 26 SHE MUST HAVE MADE NOISE, HOW DID YOU KEEP HER QUIET? 27 BECAUSE WHAT THEY WANTED WAS FOR HIM TO SAY I PUT A 28 SOCK IN HER MOUTH AND USED IT AS A GAG. IF HE HAD SAID <<< Page 38 >>> 37 1 THAT, THAT'S SO IMPROBABLE, THAT I WOULDN'T KNOW, AND I 2 THINK ANYBODY WOULD KNOW THIS PERSON REALLY KNOWS 3 SOMETHING ABOUT THIS CRIME. BUT HE DIDN'T. HE KEPT, 4 OH, I PUT MY HAND OVER HER MOUTH, I DID THAT, I DID 5 THAT, NEVER GUESSED THIS VERY UNLIKELY PUT HER ONE 6 WHITE SOCK IN HER MOUTH. 7 SOMETIMES ONE CAN LOOK AT THE ERRORS THAT 8 A PERSON MAKES, AND IF A PERSON IS ASKED QUESTIONS AND

42 9 COMES UP WITH ERRORS, AND THEY'RE ERRORS ABOUT THINGS 10 THAT YOU HAVE TO REASONABLY THINK THAT THE SUSPECT 11 KNOWS IF THEY WERE THERE, AND THE MOTIVATED PERSON 12 WOULD BE WILLING TO TELL THE POLICE BECAUSE IT'S NOT 13 MAKING THEIR SITUATION ANY WORSE. 14 IF YOU GET A PATTERN OF ERRORS LIKE THAT, 15 THEN THAT PATTERN OF ERRORS WOULD BE - - WOULD BE 16 CONSISTENT WITH SOMEONE WHO HAS BEEN COERCED INTO 17 SAYING I DID IT, MAKING UP ANSWERS TO QUESTIONS, 18 GUESSING, AND GETTING IT WRONG IF YOU GET THAT PATTERN OF ERRORS, 20 THAT'S EVIDENCE THAT IN FACT THIS IS LIKELY TO BE A 21 FALSE CONFESSION. 22 BECAUSE BY ANALYZING THE POST ADMISSION 23 NARRATIVE, THERE ARE THREE POSSIBLE OUTCOMES. OUTCOME 24 NO. 1 IS THE PERSON CORROBORATES THE "I DID IT" 25 STATEMENT, AND THEREFORE GREAT WEIGHT SHOULD BE GIVEN 26 TO THE CONFESSION. 27 ANOTHER POSSIBLE OUTCOME IS THAT THE 28 POLICE DIDN'T DO THE JOB VERY WELL AND DIDN'T ASK ANY <<< Page 39 >>> 38 1 OF THE QUESTIONS THAT WOULD ALLOW ONE TO KNOW WHETHER 2 THE PERSON HAD ACTUAL KNOWLEDGE. 3 THE THIRD OUTCOME IS THAT THE ANSWERS THAT 4 THE SUSPECT GIVES INDICATE A LACK OF ACTUAL KNOWLEDGE 5 OF THE CRIME AND THEREFORE ODDLY ENOUGH THE CONFESSION 6 ACTUALLY BECOMES EVIDENCE TENDING TO SHOW THE PERSON'S