copy VOLUME 6 PAGES REQUESTED EXTRADITION OF ) CR MISC CAL KEVIN BARRY JOHN ARTT AND ) TERENCE DAMIEN KIRBY. )

Transcription

1 copy VOLUME 6 PAGES IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA BEFORE THE HONORABLE CHARLES A. LEGGE, JUDGE IN THE MATTER OF THE ) NOS. CR MISC CAL REQUESTED EXTRADITION OF ) CR MISC CAL KEVIN BARRY JOHN ARTT AND ) TERENCE DAMIEN KIRBY. ) ) SAN FRANCISCO, CALIFORNIA THURSDAY, NOVEMBER 14, 1996 TRANSCRIPT OF PROCEEDINGS COURT TRIAL VOLUME 6 APPEARANCES: FOR THE UNITED KINGDOM: MICHAEL J. YAMAGUCHI UNITED STATES ATTORNEY 1301 CLAY STREET OAKLAND, CALIFORNIA BY: MARK N. LANIDES, ASSISTANT UNITED STATES ATTORNEY DEPARTMENT OF JUSTICE OFFICE OF INTERNATIONAL AFFAIRS WASHINGTON, D.C BY: SARA CRISCITELLI, ASSISTANT DIRECTOR (APPEARANCES CONTINUED ON FOLLOWING PAGE) REPORTED BY: JUDITH N. DUDECK, CSR, RPR LEO T. MANKIEWICZ, CSR, RPR OFFICIAL REPORTERS, USDC <<< Page 1 >>>

2 i APPEARANCES: (CONTINUED) ESQ. ESQ. FOR RESPONDENT ARTT: MORRISON & FOERSTER, LLP 345 CALIFORNIA STREET SAN FRANCISCO, CALIFORNIA BY: JAMES J. EROSNAHAN, ESQ. MARK W. DANIS, ESQ. JULIA L. ALLOGGIAMENTO, CAROLYN J. VONDRISKA, FOR RESPONDENT KIRBY: FILIPPELLI & EISENBERG 632 COMMERCIAL STREET SAN FRANCISCO, CALIFORNIA BY: GILBERT EISENBERG, ESQ. THOMAS EASTRIDGE, ESQ. 9 <<< Page 2 >>> INDEX VOLUME 6 INDEX OF TESTIMONY RESPONDENT'S WITNESS PAGE VOL. HEWITT. JOHN DIRECT EXAMINATION BY MR. BROSNAHAN CROSS-EXAMINATION BY MR. EISENBERG CROSS-EXAMINATION BY MR. ZANIDES REDIRECT EXAMINATION BY MR. BROSNAHAN REcROSS-EXAMINATION BY MR. EISENBERG RECROSS-EXAMINATION BY MR. ZANIDES FURTHER REDIRECT EXAMINATION BY MR. BROSNAHAN OFSHE. RICHARD J. DIRECT EXAMINATION BY MR. DANIS VOIR DIRE EXAMINATION BY MR. ZANIDES DIRECT EXAMINATION BY MR. DANIS (RESUMED) 909 6

3 GOVERNMENT'S WITNESS PAGE VOL. EXHIBITS GOVERNMENT' S EXHIBIT NO. IDENT. EVID. VOL. RESPONDENT' S EXHIBIT NO. IDENT. EVID. VOL. <<< Page 3 >>> 887 OFSHE - DIRECT\DANIS 1 THE COURT: WOULD YOU RAISE YOUR RIGHT HAND, PLEASE RICHARD J. OFSHE, 4 CALLED AS A WITNESS, BEING FIRST DULY SWORN, WAS EXAMINED AND 5 TESTIFIED AS FOLLOWS: 6 THE COURT: THANK YOU. MAYBE WE'LL GIVE YOU A FEW 7 MINUTES TO GET YOURSELF SET UP, THERE. S MR. DANIS: YOU HAVE SOME WATER, THERE, DR. OFSHE, 9 IF YOU'D LIKE TO POUR YOURSELF SOME BEFORE YOU START. 10 THE COURT: YOU'VE BEEN IN THE COURTROOM, AND YOU 11 KNOW HOW OUR MICROPHONE WORES, AND HELP YOURSELF TO THE WATER, 12 IF YOU WANT IT. 13 THE WITNESS: THANK YOU, YOUR HONOR. 14 THE COURT: STATE YOUR FULL NAME FOR THE RECORD AND 15 SPELL YOUR LAST NAME. 16 THE WITNESS: RICHARD J. OFSHE. O-F-S-H-E. 17 THE COURT: ALL RIGHT, WHENEVER YOU'RE READY,

4 18 MR. DANIS. 19 MR. DANIS: WE ARE, YOUR HONOR. 20 DIRECT EXAMINATION BY MR. DANIS: 21 BY MR. DANIS: 22 Q. DOCTOR OFSHE, WHAT IS YOUR OCCUPATION? 23 A. I'M A PROFESSOR IN THE SOCIOLOGY DEPARTMENT AT THE 24 UNIVERSITY OF CALIFORNIA AT BERKELEY. I'M A SOCIAL 25 PSYCHOLOGIST IN THAT DEPARTMENT. <<< Page 4 >>> 888 g1i~ OFSHE - DIRECT\DANIS 1 Q. HOW LONG HAVE YOU BEEN A PROFESSOR AT U.C. BERKELEY? 2 A. SINCE Q. AND WHAT KIND OF COURSES DO YOU TEACH? 4 A. I GENERALLY TEACH ONE, POSSIBLY TWO LARGE UNDERGRADUATE 5 LECTURE COURSES; ONE IN THE AREA OF SOCIAL PSYCHOLOGY IN IS 6 GENERAL, AND THE OTHER IN THE AREA OF MY SPECIALTY, WHICH 7 ON EXTREME FORMS OF INFLUENCE. THOSE WOULD BE 8 UNDERGRADUATE, EXCUSE ME, LECTURE COURSES AND THEN I WOULD 9 TEACH GRADUATE COURSES AND SEMINARS ON TECHNIQUES OF OF 10 INFLUENCE, POLICE INTERROGATION, AND OTHER EXTREME FORMS 11 INFLUENCE. 12 Q. ARE YOU TEACHING RIGHT NOW?

5 ( 13 A. NOT THIS SEMESTER. 14 Q. WHAT IS SOCIAL PSYCHOLOGY? 15 A. SOCIAL PSYCHOLOGY IS A SUB-FIELD WITHIN BOTH PSYCHOLOGY 16 AND SOCIOLOGY. IT COVERS A VARIETY OF SUBJECTS. THE PART 17 THAT I CONCERN MYSELF WITH HAS TO DO WITH INFLUENCE AND 18 DECISION-MAKING. IT WOULD COVER SUBJECTS HAVING TO DO WITH 19 MANIPULATION OF INDIVIDUALS, BEHAVIOR CONTROL, INDIVIDUAL 20 DECISION-MAKING. IT SPILLS OVER INTO THE AREA OF OF 21 MICROECONOMICS. MY EARLY WORK WAS ON MATHEMATICAL MODELS 22 DECISION-MAKING. CONCERNED THE AREAS OF SOCIAL PSYCHOLOGY THAT I'M 24 WITH HAVE TO DO WITH INFLUENCE, DECISION-MAKING, INTERPERSONAL HIGHLY 25 PRESSURE, GROUP PRESSURE, AND SITUATIONS OF STRUCTURED, <<< Page 5 >>> 889 OFSHE - DIRECT\DANIS 1 ORGANIZED, HIGHLY FOCUSED INFLUENCE. 2 Q. WHEN YOU SAY, "INFLUENCE AND DECISION-MAXING," WHAT ARE 3 YOU REFERRING TO? 4 A. THE WAYS IN WHICH PEOPLE CAN BE MANIPULATED, THE WAY IN 5 WHICH THEIR PERCEPTIONS OF SITUATIONS CAN BE CHANGED AND THE 6 WAY IN WHICH DECISION-MAXING, THEREFORE, THEIR CONDUCT, CAN BE 7 AFFECTED BY CHANGING THEIR PERCEPTIONS, BY PUTTING THEM IN 8 PARTICULAR SITUATIONS, BY ORGANIZING THOSE SITUATIONS IN

6 9 CERTAIN WAYS, BY SEQUENCING THOSE SITUATIONS IN CERTAIN WAYS. 10 Q. CAN YOU BRIEFLY TELL US WHAT YOUR EDUCATIONAL BACKGROUND 11 IS? 12 A. I HAVE A BACHELOR'S DEGREE IN PSYCHOLOGY FROM QUEEN'S 13 COLLEGE OF THE CITY UNIVERSITY OF NEW YORX, A MASTER'S DEGREE 14 IN THE SOCIOLOGY DEPARTMENT FROM QUEEN'S COLLEGE, AND THEN A 15 PH.D. IN THE SOCIOLOGY DEPARTMENT FROM STANFORD UNIVERSITY. 16 Q. WHEN DID YOU RECEIVE YOUR PH.D. FROM STANFORD? 17 A. I BELIEVE IT WAS AWARDED IN JANUARY OF Q. AND HAVE YOU BEEN WORXING IN THE FIELD OF SOCIAL 19 PSYCHOLOGY EVER SINCE 1968? 20 A. EVER SINCE Q. HAVE YOU RECEIVED ANY AWARDS OR HONORS OVER THE YEARS? 22 A. YES. I WAS AWARDED A JOHN SIMON GUGGENHEIM MEMORIAL 23 FOUNDATION FELLOWSHIP IN I SHARED IN THE AWARD OF 24 THE PULITZER PRIZE TO THE POINT REYES LIGHTS NEWSPAPER. THE 25 AWARD WAS GIVEN TO THE NEWSPAPER. IT WAS THE GOLD MEDAL FOR <<< Page 6 >>> 890 OFSHE - DIRECT\DANIS FOR THE THE 1 PUBLIC SERVICE, WHICH GOES TO THE INSTITUTION. IT WAS 2 WORK DONE BY DAVID AND KATHY MITCHELL, THE PUBLISHERS OF 3 PAPER, AND MYSELF. THAT WAS IN JOURNALISM 4 AND THEN THERE WERE A NUMBER OF OTHER 5 AWARDS THAT WERE AWARDED AT THE SAME TIME, AND THEN IN

7 1994, I HYPNOSIS 6 RECEIVED THE PRIZE FOR THE BEST PAPER ON CLINICAL 7 AWARDED BY THE -- BEST PAPER OF THE YEAR, AWARDED BY THE 8 SOCIETY FOR CLINICAL AND EXPERIMENTAL HYPNOSIS. 9 Q. DO YOU BELONG TO ANY PROFESSIONAL ORGANIZATIONS? 10 A. YES. DON'T MORE 11 Q. WHAT ORGANIZATIONS? JUST SUMMARIZE FOR US. YOU 12 HAVE TO GIVE US ALL OF THEM, BUT WHAT ARE SOME OF THE 13 MAJOR ONES YOU BELONG TO? Ii 14 A. I'M A MEMBER OF THE AMERICAN PSYCHOLOGICAL ASSOCIATION, 15 THE AMERICAN SOCIOLOGICAL -- SORRY -- THE AMERICAN 16 PSYCHOLOGICAL SOCIETY, THE PACIFIC SOCIOLOGICAL ASSOCIATION. 17 Q. DURING THE LAST TEN YEARS, WHAT AREA HAVE YOU BEEN 18 SPECIALIZING IN? TEN 19 A. THE PRINCIPAL AREA IN WHICH I'VE WORKED FOR THE LAST 20 YEARS IS ON THE STUDY OF INFLUENCE IN POLICE INTERROGATION. 21 REALLY BEGAN WORK IN THAT AREA IN ABOUT 1985 OR SO, AND 22 ALTHOUGH I'VE WORKED ON ONE OTHER SUBJECT WITH -- TO SOME POLICE VOLUNTARY OVER 23 DEGREE -- WITH SOME DEGREE OF EFFORT IN THAT PERIOD, 24 INTERROGATION LEADING TO TRUE OR FALSE CONFESSIONS, 25 OR COERCED CONFESSIONS, HAVE BEEN MY PRINCIPAL CONCERN <<< Page 7 >>>

8 891 OFSHE - DIRECT\DANIS (7 HAVE YOU 1 THE LAST DECADE. 2 Q. WHAT AREA HAVE YOU DONE IN THIS WORK -- WHAT WORK 3 DONE IN THIS AREA? GREAT DEAL BOOK ON LAST 4 A. I'VE DONE RESEARCH, I'VE PUBLISHED, I'VE DONE A 5 OF APPLIED WORK. I'M CURRENTLY ENGAGED IN WRITING A 6 THE SUBJECT, REPORTING THE WORK THAT I'VE DONE OVER THE 7 DECADE. WRITING? WILL PAPERS TO 8 Q. WHAT IS THE BOOK THAT YOU'RE CURRENTLY ENGAGED IN 9 A. IT DOES NOT HAVE A WORKING TITLE AT THE MOMENT. IT 10 BE -- IT'S A BOOK THAT WILL FOLLOW FROM A SERIES OF 11 BE PUBLISHED IN SCIENTIFIC JOURNALS, DONE JOINTLY WITH A 12 FORI4ER STUDENT OF MINE WHO'S NOW AT THE UNIVERSITY OF 13 COLORADO. WE PUBLISHED THE FIRST IN THE SERIES OF PAPERS AND TOGETHER 14 ARE WORKING ON THE OTHERS, AND THEN THAT WILL BE PUT 15 AS AN ACADEMIC BOOK. POLICE 16 Q. TO DATE, HAVE YOU PUBLISHED ANY PAPERS REGARDING 17 INTERROGATION AND CONFESSIONS? 18 A. YES. 19 Q. WHAT HAVE YOU PUBLISHED IN THIS AREA? LOGIC 20 A. I PUBLISHED A PAPER CALLED 'COERCED CONFESSIONS, THE 21 OF SEEMINGLY IRRATIONAL ACTION," THE CHAPTER IN THE

9 22 ENCYCLOPEDIA OF MY DISCIPLINE ON COERCIVE PERSUASION AND 23 ATTITUDE CHANGE, WHICH INCLUDED WORK ON POLICE INTERROGATION; 24 A PAPER IN 1992 ENTITLED, "INADVERTENT HYPNOSIS DURING STATE," 25 INTERROGATION," "FALSE CONFESSION DUE TO DISSOCIATIVE 0 <<< Page 8 >>> 892 OFSHE - DIRECT\DANIS 1 "MISIDENTIFYING MULTIPLE PERSONALITY DISORDER," AND "THE 2 SATANIC CULT HYPOTHESIS." 3 THEN MORE RECENTLY, A PAPER CALLED "I'M GUILTY IF 4 YOU SAY SO," IN THE PROCEEDINGS OF A CONFERENCE, AND THEN THE 5 MOST RECENT PAPER, "THE SOCIAL PSYCHOLOGY OF POLICE 6 INTERROGATION; THE THEORY AND CLASSIFICATION OF TRUE AND FALSE 7 CONFESSIONS," AND THAT'S CURRENTLY IN PRESS. 8 Q. WITH THE EXCEPTION OF THE CONFERENCE PROCEEDING, HAVE THE 9 PUBLICATIONS YOU'VE JUST DESCRIBED, ARE THOSE IN PEER-REVIEWED 10 JOURNALS A. YES. 12 Q. -- OR PUBLICATIONS? 13 A. YES. 14 Q. YOU MENTIONED THAT DURING THE LAST TEN YEARS YOU HAVE BEEN 15 DOING RESEARCH, I BELIEVE YOU CALLED IT APPLIED RESEARCH? 16 A. YES. 17 Q. WHAT DO YOU MEAN BY THAT? 18 A. WELL, THE DISTINCTION BETWEEN LABORATORY RESEARCH OR PURE

10 29 RESEARCH, IF YOU WILL, HAS TO DO WITH THE CIRCUMSTANCES -- THE 20 DEGREE OF CONTROL ONE CAN HAVE OVER THE RESEARCH PROCESS. IN 21 THE EARLY PART OF MY CAREER I DID LABORATORY-BASED RESEARCH ON 22 INFLUENCE AND DECISION-MAKING, AND THAT WAS USEFUL FOR 23 STUDYING CERTAIN SORTS OF PROBLEMS. 24 POLICE INTERROGATION, HOWEVER, IS NOT A SUBJECT THAT 25 IS EASILY MOVED INTO A LABORATORY, FOR A VARIETY OF REASONS, <<< Page 9 >>> 893 OFSHE - DIRECT\DANIS 1 ONE OF THEM BEING THAT THE STRESSES AND THE ISSUES INVOLVED IN 2 POLICE INTERROGATION, ACCUSATORY POLICE INTERROGATION THAT IS, CAMPUS 3 ARE SUCH THAT NO HUMAN SUBJECTS COMMITTEE ON ANY DECENT 4 IN AMERICA WOULD PERMIT FACULTY TO DO RESEARCH SUBJECTING 5 PEOPLE TO THIS KIND OF STRESS AND STRAIN; ALTHOUGH ONE CAN DO. 6 STUDY SUBPARTS OF THE PROCESS, AS SOME OF MY COLLEAGUES 7 IN ORDER TO STUDY THE COMPLEXITY OF POLICE 8 INTERROGATION, IN A REAL SITUATION IN WHICH PEOPLE'S LIVES 9 ARE, IN EFFECT, UP FOR GRABS, MY PREFERENCE IS TO STUDY POLICE TEN 10 INTERROGATION AS IT OCCURS IN THE CONTEXT OF ONGOING 11 INTERROGATION, SOMETHING THAT I'VE BEEN DOING FOR THE PAST 12 YEARS. ( 13 Q. ALL RIGHT. CAN YOU TELL THE COURT HOW YOU HAVE BEEN 14 STUDYING REAL INTERROGATIONS, WHAT'S YOUR BACKGROUND IN

11 THIS 15 AREA? -- THE 16 A. WELL, MY BACKGROUND IN THE AREA STARTS FROM MY WORK ON 17 OR MY BACKGROUND, EDUCATION AND TRAINING AND PAST WORK ON 18 SUBJECT OF INFLUENCE, AND PARTICULARLY INFLUENCE UNDER 19 EXTRAORDINARY, HIGH-PRESSURE CIRCUMSTANCES. THAT WAS THE 20 BACKGROUND I CAME TO THE AREA WITH. POLICE 21 IN ADDITION TO THAT, I BEGAN SIMPLY STUDYING 22 INTERROGATIONS AS A PROCESS OF INFLUENCE, STUDYING ARE 23 INTERROGATION TRAINING MANUALS, THE WAY IN WHICH POLICE 24 TAUGHT TO DO INTERROGATION, STUDYING ACTUAL INTERROGATIONS, 25 THAT IS TO SAY, TRANSCRIPTS, AUDIO TAPES, VIDEOTAPES OF <<< Page 10 >>> 894 OFSHE - DIRECT\DANIS 4 1 INTERROGATION. YOU'VE 2 Q. HOW MANY ACTUAL INTERROGATIONS WOULD YOU ESTIMATE 3 REVIEWED? 4 A. WELL OVER A HUNDRED AND FIFTY, FOR THE PURPOSE OF BOTH THEM 5 DOING EVALUATIONS, AS WELL AS FOR THE PURPOSE OF STUDYING 6 IN THE CONTEXT OF THE RESEARCH. PEOPLE 7 Q. HAVE YOU CONSULTED ON CASES SIMILAR TO THIS WHERE

12 8 HAVE SENT YOU INTERROGATIONS TO REVIEW? 9 A. YES. 10 Q. AND DO YOU HAVE ANY GUESS ABOUT HOW MANY INTERROGATIONS FROM? BURNED THAT; 11 HAVE BEEN SENT FOR YOU TO REVIEW, AND WHERE THEY'VE COME 12 A. I'VE KEPT TRACK SINCE ABOUT 1991 OR '92. MY HOME 13 DOWN IN THE OAKLAND FIRE, SO I LOST MY RECORDS PRIOR TO 14 BUT SINCE THE FIRE, AND ALSO INCLUDING WHAT I WAS ABLE TO 15 RECALL FROM THE PRECEDING PERIOD, I'VE KEPT TRACK OF THE IT'S 16 INTERROGATIONS I'VE BEEN ASKED TO REVIEW, AND I BELIEVE 17 OVER 109 OR 110 AT THIS POINT. CONSIDER DO 18 Q. THE INTERROGATIONS THAT ARE SENT TO YOU, DO YOU 19 THAT A... WHERE DO THOSE INTERROGATIONS COME FROM? HOW 20 THEY GET YOU TO? WHO SENDS YOU THESE INTERROGATIONS? TYPICALLY 21 A. WELL, THE ONES I'M ASKED TO FORMALLY REVIEW WILL 22 COME FROM ATTORNEYS. THEY'LL BE INTERROGATIONS THAT ARE 23 INVOLVED IN CASES THAT ARE CURRENTLY EITHER IN TRIAL OR THAT 24 SOMETIMES IN CIVIL ACTIONS ARISING OUT OF CRIMINAL CASES 25 HAVE ALREADY BEEN DISMISSED. SO THESE WILL BE PRE- SELECTED BY <<< Page 11 >>> 895 OFSHE - DIRECT\DANIS 1 ATTORNEYS, AND THEN SENT TO ME FOR EVALUATION.

13 2 Q. AND DO YOU CONSIDER THAT SAMPLING THAT'S SENT TO YOU TO BE 3 A FAIR CROSS SECTION OF THE INTERROGATIONS THAT ARE GOING ON 4 IN THE COUNTRY, OR IN THE WORLD? 5 A. NO, I DON'T CONSIDER IT THAT WAY, AND I CERTAINLY HOPE 6 THEy'RE NOT. THE ONES THAT I SEE ARE PRE-SELECTED BECAUSE 7 SOMEONE ELSE HAS ALREADY LOOKED CAREFULLY INTO THE CASE, 8 LOOKED CAREFULLY AT THE INTERROGATION AND HAS SERIOUS 9 QUESTIONS ABOUT IT, SERIOUS ENOUGH TO WARRANT SENDING IT TO ME 10 FOR FURTHER EVALUATION. 11 Q. DO YOU FIND THAT MOST OF THE INTERROGATIONS THAT ARE SENT 12 TO YOU INVOLVE CONFESSIONS THAT YOU WOULD DEEM EITHER 13 INVOLUNTARY OR FALSE? 14 MR. ZANIDES: OBJECTION, YOUR HONOR. THIS IS NOW 15 ASKING TO GIVE AN OPINION DURING THE QUALIFICATION PHASE, AND 16 WE HAVEN'T GOTTEN THERE YET. 17 THE COURT: WELL, I THINK IT ALL GOES TO WHAT HIS 18 EXPERIENCE IS WITH A CERTAIN BASE OF INFORMATION. I'LL 19 OVERRULE THE OBJECTION. 20 BY MR. DANIS: 21 Q. YOU MAY ANSWER. 22 A. NO, I DON'T CONSIDER THESE... COULD YOU REPEAT THE 23 QUESTION? I THINK I LOST IT. 24 Q. SURE. OF THE INTERROGATIONS THAT ARE SENT TO YOU FOR 25 REVIEW, DO YOU FIND THAT, FOR MOST OF THEM, THEY ARE EITHER <<< Page 12 >>> 896 OFSHE - DIRECT\DANIS

14 1 INVOLUNTARY OR FALSE CONFESSIONS? 2 A. NO. MORE THAN HALF OF THE INTERROGATIONS THAT ARE SENT TO 3 ME I RETURN, INDICATING THAT, IN MY OPINION, THE STATEMENTS 4 APPEAR TO BE VOLUNTARY OR THAT IT'S IMPOSSIBLE FOR ME TO MAKE 5 A DETERMINATION. 6 Q. CAN YOU TELL ME, IS THERE ANY UNIFORM AGREEMENT WITHIN THE 7 PROFESSIONAL CO1~IMUNITY ON THE APPLICATION -- THAT THE 8 PRINCIPLES OF SOCIAL PSYCHOLOGY THAT YOU'RE AN EXPERT IN ARE 9 APPROPRIATE TO USE IN ANALYZING CONFESSIONS AND 10 INTERROGATIONS? 11 A. IT'S MY EXPERIENCE THAT EVERYONE WHO WORKS IN THIS AREA, 12 BOTH ACADEMICIANS, RESEARCHERS WHO WORK IN THE AREA, TOGETHER 13 WITH EVEN THE AUTHORS OF POLICE TRAINING TEXTBOOKS, THE 14 MANUALS THAT ARE USED TO TRAIN POLICE, RELY ON THE BASE OF 15 LITERATURE OF SOCIAL PSYCHOLOGY TO EXPLAIN HOW AND WHY POLICE 16 INTERROGATION TACTICS WORK, WHAT THEY ARE SUPPOSED TO DO, AND 17 THE UNDERSTANDING OF THESE TACTICS, BOTH FROM THE ACADEMIC 18 COMMUNITY AS WELL AS FROM THE POLICE TRAINING COMMUNITY. 19 Q. IS THERE LITERATURE OUT THERE TODAY THAT DISCUSSES 20 INTERROGATIONS AND CONFESSIONS IN THE CONTEXT OF THE 21 PRINCIPALS OF SOCIAL PSYCHOLOGY? 22 A. YES. 23 Q. AND DID YOU BRING SOME OF THOSE BOOKS TODAY? WHAT ARE 24 THEY? WHAT ARE SOME OF THESE PUBLICATIONS? 25 A. WELL, I MAINTAIN A BIBLIOGRAPHY FOR THE WORKING LIBRARY <<< Page 13 >>>

15 897 OFSHE - DIRECT\DANIS 1 THAT I USE, WHICH HAS SOMETHING IN EXCESS OF 250 SEPARATE ENTERED THAT REVIEW 2 CITATIONS, AND THERE ARE AT LAST ANOTHER 50 I HAVEN'T 3 INTO IT YET. THAT'S SORT OF A WORKING RESEARCH LIBRARY 4 DRAWS ON ARTICLES IN SCIENTIFIC JOURNALS AS WELL AS LAW 5 ARTICLES AND TREATISES ON INTERROGATION. THERE HAS 6 THE FIELD HAS GOTTEN TO THE POINT AT WHICH 7 NOW DEVELOPED AN AUTHORITATIVE TEXTBOOK IN THE FIELD, AND 8 THAT'S AN INDICATION OF MATURITY IN A SCIENTIFIC FIELD. 9 Q. WHAT IS THAT TEXTBOOK? 10 A. THE TEXTBOOK IS THE PSYCHOLOGY OF INTERROGATIONS, 11 CONFESSIONS AND TESTIMONY, BY PROFESSOR GUDJONSSON. 12 Q. IS YOUR WORK REFERENCED IN THAT TEXTBOOK? ( 13 A. YES, HE ACKNOWLEDGES MY WORK BOTH IN THE PREFACE AND ALSO 14 RELIES ON IT FOR HIS ANALYSIS OF FALSE CONFESSION. 15 Q. DOCTOR, HAVE YOU TESTIFIED IN COURT BEFORE? 16 A. YES. 17 Q. HOW MANY TIMES HAVE YOU TESTIFIED? 18 A. SEVENTY-ONE. COURT? 19 Q. AND HAVE THOSE CASES BEEN IN BOTH STATE AND FEDERAL 20 A. THAT'S CORRECT. 21 Q. AND HAVE YOU TESTIFIED ON THE ISSUE OF THE VOLUNTARINESS 22 OF CONFESSIONS? 23 A. I'VE TESTIFIED ON THE SUBJECT OF INFLUENCE IN POLICE 24 INTERROGATION, WHICH WOULD GO TO THE VOLUNTARINESS, ON

16 25 FORTY-SEVEN OCCASIONS. <<< Page 14 >>> 898 OFSHE - DIRECT\DANIS 1 Q. DOCTOR, AT THIS POINT I'D LIKE TO TURN TO THE QUESTION OF 2 POLICE INTERROGATION. HOW DO YOU DEFINE AN INTERROGATION? 3 A. AN INTERROGATION IS A METHOD OF INFLUENCE APPLIED TO 4 SUSPECTS IN CRIMINAL CASES BY POLICE, THE PURPOSE OF WHICH IS 5 TO LEAD THE INDIVIDUAL TO MAKE AN ADMISSION TO HAVING 6 COMMITTED A CRIME, AND THEN TO GAIN A CONFESSION TO THE CRIME 7 WHICH INCLUDES A FULL DESCRIPTION OF THE CRIME EVENTS, IDEALLY 8 STARTING WITH THE PLANNING, THE EXECUTION, ACTS SUBSEQUENT TO 9 THE CRIME, TO GET THE FULL STORY OF WHAT HAPPENED AND THE 10 PERSON'S INVOLVEMENT IN IT. 11 Q. FROM YOUR PERSPECTIVE, IS THERE ANYTHING OBJECTIONABLE 12 ABOUT THE USE OF POLICE INTERROGATION TO OBTAIN A STATEMENT 13 FROM A WITNESS? 14 A. NO. IT'S AN ABSOLUTELY NECESSARY STEP IN THE CRIMINAL 15 JUSTICE SYSTEM. IT'S VITAL, IT'S IMPORTANT, IT MAKES A MAJOR 16 CONTRIBUTION. IT'S NECESSARY FOR LAW ENFORCEMENT TO FUNCTION 17 EFFICIENTLY AND EFFECTIVELY. 18 Q. WHEN YOU'RE REVIEWING AN INTEPSROGATION... LET ME BACK UP. 19 WHEN YOU'VE REVIEWED INTERROGATIONS BEFORE, HAVE THEY BEEN 20 MAINLY AUDIO- OR VIDEO-RECORDED, OR IN WHAT SETTING HAVE THOSE 21 INTERROGATIONS BEEN? 22 A. SOMETIMES THEY WILL BE FULL VIDEOTAPES OF INTERROGATIONS 23 THAT MAY RUN AS MUCH AS 16 HOURS. SOMETIMES THEY WILL BE

17 24 AUDIO RECORDINGS WITH THEIR ACCOMPANYING TRANSCRIPTS, AND THE 25 VIDEOS WOULD TYPICALLY HAVE TRANSCRIPTS, AS WELL. SOMETIMES <<< Page 15 >>> 899 OFSHE - DIRECT\DANIS OCCURRED IN DEBRIEF OFFICERS, WHAT THE 1 THE WORK I DO STARTS WITH POLICE REPORTS OF WHAT 2 THE INTERROGATION, AND THEN IT'S NECESSARY FOR ME TO 3 THE SUSPECT, AND IF POSSIBLE, TO DEBRIEF THE POLICE 4 IN ORDER TO TRY TO CONSTRUCT A MORE ACCURATE HISTORY OF 5 HAPPENED IN THE INTERROGATION THAN WHAT IS CONTAINED IN 6 POLICE REPORTS. 7 Q. HOW DO YOU GO ABOUT ANALYZING AN INTERROGATION? WHAT 8 APPROACH DO YOU TAKE? PURPOSE WITH THE 9 A. WELL, ANY INTERROGATION CAN BE BROKEN DOWN FOR THE 10 OF ANALYSIS INTO TWO PORTIONS. THE FIRST PART HAS TO DO 11 GAINING THE ADMISSION, AND I GENERALLY REFER TO THAT AS 12 PRE-ADMISSION PHASE OF THE INTERROGATION. BETWEEN 4 THE TIME PHASE 13 THAT HAS TO DO WITH EVERYTHING THAT HAPPENS 14 THE POLICE AND THE SUSPECT FROM CONTACT THROUGH UNTIL 15 THE SUSPECT SAYS til DID IT." SO IT'S THE PRE-ADMISSION

18 16 OF THE INTERROGATION. PHASE ORDER TO CRIME TO IN 17 THE ISSUES THAT ARISE DURING THE PRE-ADMISSION 18 HAVE TO DO WITH THE KINDS OF TACTICS THAT ARE USED IN 19 MOVE SOMEONE WHO INITIALLY DENIES INVOLVEMENT IN THE 2,0 THE POINT AT WHICH THEY MAKE AN ADMISSION OF INVOLVEMENT 21 THE CRIME. SORTS 22 SO THE ISSUES THAT ARISE THERE WOULD BE WHAT 23 OF TACTICS ARE USED, WHETHER THOSE TACTICS ARE PERSUASIVE OR WORDS, SHIFT 24 WHETHER THOSE TACTICS ARE POSSIBLY COERCIVE; IN OTHER 25 THE MOTIVATIONS AND THE WAY -- WHY THE PERSON CHOSE TO <<< Page 16 >>> 900 OFSHE - VOIR DIRE\ZANIDES 1 FROM DENIAL TO ADMISSION. 2 ONCE AN ADMISSION IS OBTAINED IN AN INTERROGATION, 3 THE FOCUS OF AN INTERROGATION NOW CHANGES RADICALLY. 4 Q. IS THAT A SEPARATE PHASE, THEN, OF THE INTERROGATION? 5 A. THE INTERROGATION MOVES ON TO A SECOND AND MORE IMPORTANT 6 PHASE. ALTHOUGH THE -- GETTING THE PERSON TO SAY, "I DID IT," 7 IN THE MOVIES, IN ANY CASE, IS THE DRAMATIC MOMENT OF THE 8 INTERROGATION, GETTING THE "I DID IT" STATEMENT IS ACTUALLY 9 OPENING THE DOOR TO THE IMPORTANT PART OF THE INTERROGATION.

19 10 Q. AND WHAT IS THE IMPORTANT PART OF THE INTERROGATION? 11 A. THE IMPORTANT PART IS GETTING THE POST-ADMISSION NARRATIVE 12 OF THE CRIME. 13 MR. ZANIDES: EXCUSE ME, YOUR HONOR, IF I MAY 14 INQUIRE, I'M NOT SURE THE THE COURT: YES, WE ARE PROCEEDING AWAY FROM VOIR 16 DIRE AND QUALIFICATION INTO THE SUBSTANCE OF HIS OPINIONS. 17 MR. ZANIDES: I DO HAVE SOME VOIR DIRE, IF THE COURT 18 PLEASE, IF IT'S NOW TIME. 19 THE COURT: YES, IF WE COULD INTERRUPT AT THIS 20 TIME MR. DANIS: YES, YOUR HONOR. 22 THE COURT: YOU MAY VOIR DIRE. 23 VOIR DIRE EXAMINATION BY MR. ZANIDES: 24 BY MR. ZANIDES: 25 Q. SIR, AS I UNDERSTAND IT, YOU ARE HERE TODAY TO OFFER <<< Page 17 >>> 901 OFSHE - VOIR DIRE\ZANIDES 1 TESTIMONY IN TWO AREAS. THE FIRST IS ON THE SUBJECT MATTER OF 2 THE VOLUNTARINESS OR NO OF THE STATEMENT -- STATEMENTS GIVEN 3 BY MR. ARTT IN 1981, IS THAT RIGHT? 4 A. IT WOULD BE MY ANALYSIS OF HOW THE STATEMENT WAS ELICITED 5 FROM HIM AND THAT WOULD GO TO VOLUNTARINESS, YES. 6 Q. AND THE REPRESENTATION FROM COUNSEL, WHICH I TAKE IT IS 7 CORRECT, IS THAT YOU WILL TALK ABOUT WHETHER OR NOT IT WAS OR 8 WAS NOT VOLUNTARY, IS THAT RIGHT?

20 9 A. YES, I'LL TALK ABOUT THE FACTORS THAT MOTIVATED HIM, AND 10 THAT LEADS TO A CLASSIFICATION. 11 Q. AND IN ADDITION, YOU ARE HERE, AS I GET IT, TO TALK ABOUT 12 WHETHER OR NOT THE POST-ADMISSION NARRATIVE FITS, SO-CALLED, 13 FITS THE KNOWN FACTS OF THE CASE, IS THAT RIGHT? 14 A. THAT WOULD BE ONE WAY OF DESCRIBING IT, YES. 15 Q. WELL, ESSENTIALLY A COMPARISON OF WHAT MR. ARTT TOLD THE 16 DETECTIVES IN HIS ADMISSIONS AND IN THE RECORDS, AS AGAINST 17 WHAT FACTS EXIST IN INDEPENDENT OF MR. ARTT, SO AS TO 18 ASCERTAIN INFORMATION BEARING ON THE QUESTION OF WHETHER OR 19 NOT IT WAS FALSE. IS THAT A FAIR STATEMENT? 20 A. BEARING ON WHETHER OR NOT MR. ARTT APPEARS TO HAVE ACTUAL 21 KNOWLEDGE OF THE CRIME, WHICH THEN LEADS TO THE CONCLUSION AS 22 TO WHETHER IT IS MORE LIKELY A RELYING OR A FALSE STATEMENT. 23 Q. NOW, ON THE SECOND ISSUE, YOU ARE AWARE THAT THE LEGAL 24 STANDARD FOR QUALIFICATION OF YOU TO TESTIFY ON THIS SUBJECT 25 IS THAT YOU ARE -- YOUR AREA -- THIS KNOWLEDGE MUST BE <<< Page 18 >>> 902 OFSI-IE - VOIR DIRE\ZANIDES YOU 1 SCIENTIFIC KNOWLEDGE, OR OTHERWISE EXPERT KNOWLEDGE, ARE 2 NOT? 3 A. MY -- I'M NOT AWARE THAT THAT IS THE ONLY BASIS FOR 4 QUALIFYING. THE 5 Q. WELL, LET ME ASK YOU THIS: IN THE SECOND PHASE OF

21 6 ANALYSIS THAT YOU UNDERSTAND YOU'RE TO BE BROUGHT HERE WHAT ARTT'S GENERAL, 7 TODAY -- ESSENTIALLY WHAT YOU'RE GOING TO DO IS COMPARE 8 ARTT SAID WITH FACTS THAT WERE PRESENTED TO YOU BY MR. 9 COUNSEL ON THE SUBJECT MATTER OF THE MILES MURDER IN 10 CORRECT? TO DIRE 11 MR. DANIS: YOUR HONOR, AT THIS POINT I'D LIKE 12 OBJECT. CERTAINLY MR. ZANIDES IS ENTITLED TO DO A VOIR ( 13 OF THE WITNESS AT THIS POINT, AND WHAT I'M HEARING DOES NOT OFSHE. FOCUS THERE'S 14 SEEM TO BE QUESTIONS GOING TO THE QUALIFICATIONS OF DR. 15 THE COURT: I THINK IT DOES. HE'S TRYING TO 16 ON WHAT HE'S GOING TO BE TESTIFYING TO, AND WHETHER 17 SOME SORT OF QUESTION, UNDER DAUBERT, A QUESTION OF 18 QUALIFICATION OF THE WITNESS. SO I THINK IT'S APPROPRIATE. 19 BY MR. ZANIDES: THAT YOU TO THE THAT'S HAS 20 Q. SIR, ARE YOU TELLING THE COURT THAT THIS ANALYSIS 21 PROPOSE TO DO, NAMELY, AS I UNDERSTAND IT, YOU ARE GOING 22 TAKE ARTT'S STATEMENTS, WHICH YOU HAVE IN THE CONFESSION, 23 SIGNED STATEMENT AND THE NOTES OF THE VERBALS, RIGHT? 24 THE QUANTUM OF INFORMATION YOU HAVE THAT THE GOVERNMENT 25 PRESENTED AS ARTT'S, SHALL WE USE THE TERM "ADMISSION," OR

22 <<< Page 19 >>> 903 OFSHE - VOIR DIRE\ZANIDES 1 WHAT TERM DO YOU USE? 2 A. THE STATEMENT HE GAVE. 3 Q. THE STATEMENT. ARTT'S STATEMENT, IN ITS -- THAT'S A 4 QUANTUM OF INFORMATION. 5 A. CORRECT. 6 Q. YES? IT IS A DEFINED COGNIZABLE, IDENTIFIABLE AMOUNT OF 7 INFORMATION, AM I RIGHT? 8 A. CORRECT. 9 Q. AND YOU HAVE BEEN ASKED BY MR. ARTT'S COUNSEL TO TAKE THAT 10 COGNIZABLE INFORMATION AND COMPARE IT WITH A WHOLE SERIES OF 11 OTHER FACTS WHICH APPEAR IN RECORDS WHICH THEY HAVE GIVEN YOU, 12 IS THAT RIGHT? 13 A. YES. 14 Q. SO YOU ARE ESSENTIALLY COMPARING FACTS IN ONE STATEMENT, 15 OR ARTT'S STATEMENT, WITH A WHOLE SERIES OF FACTS GIVEN YOU ON 16 THE SUBJECT OF THE MILES MURDER, RIGHT? 17 A. YES, IN RELATION TO THE INTERROGATION, IN RELATION TO WHAT 18 INFORMATION MR. ARTT MAY HAVE HAD THAT WAS INDEPENDENT OR WHAT 19 INFORMATION WAS GIVEN TO HIM. 20 Q. RIGHT, AND THE SECOND PRONG OF YOUR TESTIMONY IS BASED ON 21 YOUR COMPARISON OF WHAT ARTT'S STATEMENT WAS WITH THIS OTHER 22 INFORMATION, AND THAT'S NOT -- THAT'S WHAT ANY TRIER OF FACT 23 DOES, ISN'T THAT RIGHT? 24 YOU HAVE NO PARTICULAR PSYCHOLOGICAL OR SCIENTIFIC 25 KNOWLEDGE WHICH PERMITS YOU TO MAKE THE COMPARISON BETWEEN

23 <<< Page 20 >>> 904 OFSHE - VOIR DIRE\ZANIDES 1 ARTT'S STATEMENTS AND THE OTHER AVAILABLE EVIDENCE THAT WOULD 2 GIVE YOU ANY EXPERTISE, ANY MORE THAN HIS HONOR OR ANY OThER 3 CAPABLE TRIER OF FACT. ISN'T THAT CORRECT? 4 A. THOSE RAW FACTS FEED INTO THE EVALUATION OF THE 5 VOLUNTARINESS OF THE STATEMENT AND THE LIKELIHOOD THAT HE HAS 6 INDEPENDENT KNOWLEDGE OF THE CRIME, AND THAT IS WHY I WOULD 7 PERFORM THAT ANALYSIS AND POINT OUT WHAT INDICATES INDEPENDENT 8 KNOWLEDGE OR WHAT INDICATES LACK OF ACTUAL KNOWLEDGE OF THE 9 CRIME. 10 Q. BUT WHAT YOU CAN SAY IS THAT IT DOESN'T TARE ANY 11 PARTICULAR EXPERTISE TO IDENTIFY THE INDEPENDENT FACTS AND 12 COMPARE THEM TO WHAT'S WITHIN THE UNIVERSE OF ARTT'S 13 STATEMENT. 14 A. THAT'S ONE STEP IN A MORE COMPLEX PROCESS. 15 Q. SO YOU COULD -- YOUR TESTIMONY TODAY COULD BE, AND I 16 ASSUME IT WILL BE, THAT YOU NEED TO CHECK THE POST- -- CHECK 17 WHAT YOU CALL THE TRUE FACTS, THE GROUND FACTS, THE GROUND 18 TRUTH, OR OTHER KNOWN FACTS, TO THE EXTENT THEY BEAR ON GROUND 19 TRUTH, WITH THE STATEMENT, AND IF THERE ARE INCONSISTENCIES, 20 THEN THAT MAY INFORM ON THE SUBJECT OF VOLUNTARINESS OR NOT. 21 IS THAT YOUR TESTIMONY? 22 A. IT CONTRIBUTES TO VOLUNTARINESS, AS WELL AS THE PRESENCE 23 OR ABSENCE OF INFORMATION CONTRIBUTES TO AN ESTIMATE OF 24 WHETHER MR. ART? HAS INDEPENDENT KNOWLEDGE OF THE CRIME, AND 25 ALSO BEARS ON SOME OF THE TACTICS THAT WERE USED DURING THE

24 <<< Page 21 >>> 905 OFSHE - VOIR DIRE\ZANIDES 1 INTERROGATION. THERE ARE CERTAIN THINGS THAT APPEAR IN THE 2 POST-ADMISSION NARRATIVE THAT ARE DIRECTLY RELATED, IN MY 3 OPINION, TO SOME OF THE TACTICS USED IN THE INTERROGATION. 4 Q. YOU'RE NOT A PSYCHIATRIST. 5 A. NO. 6 Q. YOU'RE NOT A PSYCHOLOGIST. 7 A. I'M A SOCIAL PSYCHOLOGIST. 8 Q. YOU HAVE NO GRADUATE DEGREE IN PSYCHOLOGY. 9 A. NO, I HAVE A GRADUATE DEGREE WITH A SPECIALTY IN THE FIELD 10 OF SOCIAL PSYCHOLOGY. 11 Q. YOU HAVE NOT ENGAGED THE SERVICES OF A PSYCHOLOGIST OR 12 PSYCHIATRIST TO LOOK AT MR. ARTT. 13 A. NO, I'VE DONE NO EVALUATION OF MR. ARTT'S PERSONALITY. 14 Q. AND YOU YOURSELF HAVE NEVER INTERROGATED A SUSPECT WHO WAS 15 SUSPECTED OF COMMITTING A SERIOUS CRIME? 16 A. ACTUALLY, I HAVE. 17 Q. AND WHEN WAS THAT? 18 A. IN 1989 OR -- '89, I BELIEVE. 19 Q. WAS THAT FOR THE PURPOSE OF TAKING A CONFESSION? 20 A. IT WAS FOR THE PURPOSE OF TESTING WHETHER HE WAS IN THE 21 PROCESS, OR HAD ALREADY GIVEN A NUMBER OF FALSE CONFESSIONS, 22 AND SO I ELICITED A FALSE CONFESSION FROM HIM, AT THE BEHEST 23 OF THE LOCAL POLICE.

25 24 Q. SO YOU HAVE NEVER INTERROGATED A CRIMINAL SUSPECT WHO WAS 25 SUSPECTED OF COMMITTING A SERIOUS CRIME BEFORE HE MADE SOME <<< Page 22 >>> 906 OFSHE - VOIR DIRE\ZANIDES 1 ADMISSION ON THE SUBJECT. 2 A. NO. 3 Q. ALL RIGHT. AND YOU HAVE READ INSTRUCTION MANUALS, RIGHT, 4 ABOUT POLICE INTERROGATIONS? 5 A. RIGHT. I'VE STUDIED THE TRAINING MANUALS AND THE 6 LITERATURE THAT'S USED TO TRAIN POLICE. 7 Q. OKAY. NOW, YOU'VE IDENTIFIED SOME WRITINGS THAT YOU HAVE 8 MADE, AND -- 9 MR. DANIS: YOUR HONOR, I'D JUST LIKE TO OBJECT AT 10 THIS POINT. I DON'T KNOW IF THIS VOIR DIRE IS GOING TO GO 11 LONGER THAN THE DIRECT EXAMINATION. I THINK MR. ZANIDES HAS 12 MADE HIS POINTS REGARDING THE DOCTOR'S QUALIFICATIONS. 13 MR. ZANIDES: NO, I HAVEN'T. I'M NOT EVEN CLOSE. 14 THE COURT: WELL, IT SOUNDS TO ME LIKE YOU'RE 15 LAPSING BACK AND FORTH BETWEEN TRUE VOIR DIRE ON THE ONE HAND 16 AND IMPEACHMENT ON THE OTHER. 17 MR. ZANIDES: IF I CAN HAVE A BRIEF LATITUDE, YOUR 18 HONOR, ON A FEW POINTS MR. DANIS: YOUR HONOR, I THINK WE'RE TRYING TO GET 20 THE WITNESS ON AND OFF TODAY. 21 THE COURT: WELL, WE MAY OR MAY NOT. THIS IS GOING 22 TO OCCUR. WHETHER IT OCCURS NOW OR OCCURS AFTER YOU FINISH,

26 23 IT'S GOING TO OCCUR, SO IT'S JUST A QUESTION OF WHEN. IT'S 24 NOT GOING TO SAVE TIME. 25 1/ // LEO MANXIEWICZ - OFFICIAL REPORTER, USDC <<< Page 23 >>> 907 OFSHE - VOIR DIRE\ZANIDES I AN AN 1 BY HR. ZANIDES: 2 Q. SIR, YOU HAVE TESTIFIED THAT YOU ARE GOING TO OFFER 3 OPINION, OR IT'S MY UNDERSTANDING YOU'RE GOING TO OFFER 4 OPINION ON THE SUBJECT OF THE VOLUNTARINESS OF HR. ARTT'S 5 CONFESSION. 6 A. CORRECT. AGREEMENT TO THAT 7 Q. AND YOU HAVE SUGGESTED THAT THERE IS UNIFORM 8 THAT THE PRINCIPLES OF SOCIAL PSYCHOLOGY ARE APPROPRIATE 9 APPLY TO EXPLAIN HOW AND WHY CONFESSIONS ARE MADE, IS 10 RIGHT? 11 A. THAT'S CORRECT. 12 Q. ALL RIGHT. NOW, THERE IS NO CONSENSUS IN SOCIAL ( 13 PSYCHOLOGY OR ANYWHERE ELSE IN THE SCIENTIFIC FIELD REGARDING 14 THE DEFINITION OF VOLUNTARY, IS THERE? THINK 15 MR. DANIS: TO WHICH I OBJECT, YOUR HONOR. I 16 WE ARE SLIDING INTO CROSS-EXAMINATION.

27 17 MR. ZANIDES: BUT YOUR HONOR, THE COURT: THAT'S IMPEACHMENT. IS 19 MR. ZANIDES: YOUR HONOR, HE HAS SAID THAT THERE 20 A CONSENSUS IN THE SCIENTIFIC COMMUNITY ON, I INFER, THE 21 SUBJECTS ABOUT WHICH HE'S TO TESTIFY. 22 THE COURT: YES. 23 MR. ZANIDES: LET ME ASK HIM THIS? GUDJONSSON 24 Q. IS THERE A DEFINITION OF VOLUNTARINESS IN THE 25 BOOK THAT YOU MENTIONED? <<< Page 24 >>> 908 OFSHE - VOIR DIRE\ZANIDES 1 MR. DANIS: TO WHICH I OBJECT. 2 THE COURT: MR. ZANIDES, THIS IS IMPEACHMENT. THIS 3 Is CROSS-EXAMINATION. IT'S NOT VOIR DIRE. I MEAN, I'M NOT 4 OBJECTING TO YOUR GOING INTO IT, BUT IT'S A QUESTION OF WHEN 5 YOU GO INTO IT. 6 MR. ZANIDES: WELL, YOUR HONOR, I WOULD RESPECTFULLY 7 SUBMIT THAT IT'S APPROPRIATE TO TEST THE WITNESS' ASSERTION 8 THAT THAT IS A CONSENSUS. I MEAN, BECAUSE IF THERE ISN'T -- 9 THE COURT: OF COURSE YOU'RE RIGHT. YOU'RE RIGHT. 10 MR. ZANIDES: AND THAT GOES TO -- THE QUESTION IS, 11 UNDER DAUBERT, IS THE PROFFERED EVIDENCE, NAMELY, HIS 12 OPINION THE COURT: WELL, OKAY, I SEE WHAT YOU'RE DOING.

28 14 NO, I'M GOING TO LET THE TESTIMONY GO AHEAD. IF I DETERMINE 15 AT THE END OF THE TESTIMONY THAT IT DOESN'T MEET THE DAUBERT 16 MINIMAL STANDARD, I WILL STRIKE THE TESTIMONY. YOU NEEDN'T DO 17 THIS AHEAD OF THE WITNESS TESTIFYING. 18 MR. ZANIDES: VERY WELL. 19 THE COURT: OKAY. THANK YOU. 20 MR. ZANIDES: I WOULD, YOUR HONOR, URGE THAT THE 21 COURT RESTRICT THE WITNESS' TESTIMONY. WHAT I ANTICIPATE 22 WE'RE GOING TO HEAR IS ESSENTIALLY MR. DANIS: YOUR HONOR, CAN WE HEAR THE WITNESS AND 24 WHAT THE WITNESS IS GOING TO SAY? MR. ZANIDES WOULD LIKE TO 25 MAKE THE IN LIMINE MOTION, AGAIN, DURING THE MIDDLE OF THE ~ <<< Page 25 >>> 909 OFSHE - DIRECT\DANIS 4 1 EXAMINATION. 2 THE COURT: LET HIM STATE HIS POSITION. THIS: 3 MR. ZANIDES: MY POSITION, YOUR HONOR, IS 4 THAT I APPRECIATE THE COURT'S ALLOWING ME TO CROSS ON THE INFORMATION 5 FIRST PRONG, NAMELY, WHETHER OR NOT THERE IS ANY 6 OR CONSENSUS IN THE COMMUNITY, ON THE FIRST PRONG. FROM THE 7 WHAT I ANTICIPATE WILL HAPPEN, AS I'VE SEEN 8 PROFFER, IS THAT THE WITNESS WILL ESSENTIALLY SAY THAT HE

29 ALL GET IS 9 BELIEVES IT'S A FALSE CONFESSION BASED ON HIS REVIEW OF 10 THE OTHER EVIDENCE, AND WHAT WE'RE ESSENTIALLY GOING TO 11 A COMPARISON OF THE ARTT INFORMATION AS AGAINST EVERYTHING 12 ELSE. AVOIDED 4 BUT 13 THE COURT: I UNDERSTAND THAT, BUT HE'S 14 AGREEING WITH YOU. WHAT HE SAID IS, THAT'S PART OF IT, 15 THERE'S MORE. OKAY? SO I'VE JUST GOT TO HEAR THE WHOLE 16 THING. 17 ALL RIGHT, GO AHEAD, MR. DANIS. 18 DIRECT EXAMINATION BY MR. DANIS: (RESUMED) 19 BY MR. DANIS: WHERE BEEN 20 Q. LET'S SEE IF WE CAN GET BACK ON THE TRAIN, DOCTOR, 21 WE WERE, AND I THINK THE STATION WE WERE AT WAS, YOU HAD 22 DESCRIBING HOW YOU GO ABOUT ANALYZING AND EVALUATING AN ADMISSION ABOUT ADMISSION 23 INTERROGATION SESSION, AND YOU TOLD US ABOUT THE PRE- 24 PHASE AND YOU WERE, I BELIEVE, IN THE MIDDLE OF TALKING 25 A SECOND PHASE OF THE INTERROGATION CALLED THE POST ~-- <<< Page 26 >>> 910 OFSHE - DIRECT\DANIS

30 1 NARRATIVE. 2 WHAT IS THE SIGNIFiCANCE THE POST-ADMISSION -- WHAT 3 Is THE POST-ADMISSION NARRATIVE AND WHAT IS ITS SIGNIFICANCE? 4 A. THE POST-ADMISSION NARRATIVE IS THAT PART OF THE 5 INTERROGATION, OR THE COLLECTING OF IT, IS THAT PART OF THE 6 INTERROGATION AFTER THE PERSON HAS SAID, "ALL RIGHT, I DID 7 IT," PRESUMABLY HAS NOW MADE A VOLUNTARY ADMISSION. 8 NOW, THE TASK OF AN INTERROGATOR IS TO GAIN AS 9 COMPLETE AND ACCURATE A DESCRIPTION OF THE CRIME FACTS AS IS 10 POSSIBLE; TO MAKE SURE TO INCLUDE IN THAT COLLECTION OF 11 INFORMATION, INFORMATION THAT GOES BEYOND THAT WHICH THE 12 SUSPECT HAS BEEN CONTAMINATED WITH DUE TO THE INTERROGATION, 13 BECAUSE OFTEN DURING INTERROGATION ASPECTS OF THE CRIME ARE 14 NECESSARILY DISCUSSED. 15 IDEALLY, THE POST-ADMISSION NARRATIVE THAT ARISES 16 HAS A CERTAIN FACE VALIDITY TO IT. IT MAKES SENSE AS AN 17 ACCOUNT OF HOW THIS CRIME WAS PLANNED, EXECUTED, AND WHAT 18 FOLLOWED. 19 AND THEN CERTAINLY, THERE ARE INNUMERABLE 20 OPPORTUNITIES TO OBTAIN INDEPENDENT CORROBORATION OF THE 21 ACCOUNT THAT THE PERSON GIVES. THAT INDEPENDENT CORROBORATION 22 CAN COME IN THE FORM OF INFORMATION THAT WAS NOT COMMUNICATED 23 BY THE POLICE, INFORMATION UNKNOWN TO THE POLICE, INFORMATION 24 THAT IS OF AN APPARENTLY GREAT SIGNIFICANCE, SUCH AS WHERE'S 25 THE MISSING MURDER WEAPON, WHERE IS THE MISSING LOOT, <<< Page 27 >>> 911

31 OFSHE - DIRECT\DANIS 1 SOMETHING UNKNOWN TO THE POLICE BUT PRESUMABLY KNOWN TO THE 2 PERPETRATOR, OR IT CAN COME IN THE FORM OF DETAILS ABOUT THE 3 CRIME THAT WOULD NECESSARILY BE KNOWN TO THE PERPETRATOR, BUT 4 ARE OF NOT ANY GREAT SIGNIFICANCE EXCEPT THEY DEMONSTRATE THAT 5 THE PERSON HAS ACTUAL KNOWLEDGE OF THE CRIME. 6 THAT'S THE TASK OF THE POST-ADMISSION NARRATIVE 7 PHASE, BECAUSE IT IS THE POST-ADMISSION NARRATIVE, THE QUALITY 8 OF IT, THAT DISTINGUISHES BETWEEN A RELIABLE "I DID IT" 9 STATEMENT AND AN UNRELIABLE "I DID IT" STATEMENT, SINCE IT'S 10 POSSIBLE TO ELICIT FALSE "I DID IT" STATEMENTS THROUGH THE 11 TACTICS OF INTERROGATION. SIMPLY KNOWING THAT SOMEONE HAS 12 SAID, "I DID IT," DOES NOT ALLOW ONE TO KNOW WHETHER THAT IS A 13 RELIABLE OR AN UNRELIABLE STATEMENT, AND THAT'S THE DILEMMA OF 14 POLICE INTERROGATION. 15 Q. DO FALSE CONFESSIONS HAPPEN? 16 A. YES. 17 Q. AND WHAT EVIDENCE DO YOU KNOW OF THAT FALSE CONFESSIONS 18 HAPPEN? 19 A. WELL, PERIIAPS THE BENCHMARK STUDY ON THE SUBJECT IS 20 PUBLISHED IN THE STANFORD LAW REVIEW, 1987 NOVEMBER, BY HUGO 21 ADAM BEDAU AND MICHAEL RADELET, AND IT'S AN ARTICLE THAT RAN 22 TO, I THINK, A HUNDRED AND NINETY SOME-ODD PAGES, ON 23 MISCARRIAGES OF JUSTICE IN POTENTIALLY CAPITAL CASES IN 24 AMERICAN HISTORY, AND IN THAT STUDY BEDAU AND RADELET 25 IDENTIFIED 350 EXAMPLES OF POTENTIAL MISCARRIAGES, THAT IS, <<< Page 28 >>>

32 912 OFSHE - DIRECT\DANIS CASES 1 CASES IN WHiCH SOMEONE HAD BEEN CONVICTED, AND IN SOME 2 IMPRISONED FOR A PERIOD OF TIME, OR EXECUTED~ AND WERE 3 SUBSEQUENTLY PROVEN TO BE INNOCENT. IDENTIFIED IN 4 BASED ON THAT STUDY, THREE VARIABLES WERE 5 AS THE MOST LIKELY CONTRIBUTORS TO MISCARRIAGES OF JUSTICE 6 CAPITAL CASES. THE FIRST MOST LIKELY WAS EYEWITNESS 7 MISIDENTIFICATION, THE SECOND MOST LIKELY WAS PERJURED THE 8 TESTIMONY AND THE THIRD MOST LIKELY, IN THE ABSOLUTE, AND 9 MOST LIKELY CAUSE OF A MISCARRIAGE ATTRIBUTABLE TO POLICE FOR 10 ERROR, WAS ELICITING A FALSE CONFESSiON. THAT ACCOUNTED PERCENT OF THE TOTAL NUMBER OF MISCAI~RIAGES THAT THEY 12 STUDIED. ( 13 IN ADDITION TO THAT, I'VE ALSO DIRECTLY PARTICIPATED WERE 14 IN A NUMBER OF CASES IN WHICH PROVEN FALSE CONFESSIONS 15 TAKEN. 16 Q. HAVE YOU PARTICIPATED IN CASES WHERE YOU YOURSELF HAVE 17 RENDERED AN OPINION THAT A CONFESSION WAS FALSE AND IT WAS 18 THEREAFTER SHOWN, THERE WAS PHYSICAL EVIDENCE OR WHATEVER, 19 THAT, INDEED, IT WAS A FALSE CONFESSION? 20 A. YES

33 24 25 (CONTINUED ON FOLLOWING PAGE. NOTHING OMITTED.) <<< Page 29 >>> 913 OFSHE - DIRECT/DANIS 1 Q. (BY MR. DANIS) LET'S TALK ABOUT THE PREADMISSION PHASE OF 2 AN INTERROGATION, WHICH YOU SAID IS -- THE GOAL IS TO ELICIT 3 THE STATEMENT, "I DID IT." 4 HOW IS THAT POLICE -- WHAT TACTICS DO POLICE USE TO 5 ELICIT THE "I DID IT" STATEMENT? 6 A. THERE ARE A NUMBER OF ELEMENTS TO INTERROGATION WHICH 7 COULD BE CONSIDERED TACTICS THAT REALLY SET THE FOUNDATION, 8 THE STAGE, ON WHICH THE INTERROGATION GOES FORWARD. 9 THIS WOULD HAVE TO DO WITH THE SETTING OF THE 10 INTERROGATION. TYPICALLY, THIS WOULD BE DONE IN A SETTING 11 THAT THE POLICE CONTROL, A SETTING THAT MAXIMIZES THE 12 APPEARANCE OF POWER OF THE POLICE, MINIMIZES THE SUSPECT'S 13 SENSE OF THEIR ABILITY TO CONTROL THE WORLD AROUND THEM. 14 IN OTHER WORDS, SET IT UP SO THAT THE HIGH GROUND, 15 IF YOU WILL, IS HELD BY THE INTERROGATORS IN ORDER TO MAKE 16 THEIR MANIPULATIONS MORE EFFECTIVE. THAT'S A BASE LINE 17 CONDITION. 18 SECOND, THERE IS THE DEMEANOR OF THE INTERROGATORS. 19 THE INTERROGATORS WILL EFFECT A DEMEANOR IN WHICH THEY APPEAR 20 TO BE ABSOLUTELY CERTAIN THAT THE PERSON IS GUILTY PERSONALLY. 21 THEY AVOID SHOWING ANY INDICATION OF DOUBT IN THEIR MINDS.

34 22 THEY REPRESENT THAT THE EVIDENCE IS SUFFICIENT THAT THEY ARE 23 ABSOLUTELY CONVINCED PERSONALLY THAT THE PERSON COMMITTED THE 24 CRIME THAT THERE IS A DEMEANOR COMPONENT TO THE JUDITH N. DUDECK - OFFICIAL REPORTER - USDC <<< Page 30 >>> 914 OFSHE - DIRECT/DANIS 1 INTERACTION IN WHICH THE INTERROGATE EFFECTS AN AUTHORITATIVE 2 STANCE, CLAIMING TO KNOW THE TRUTH, CLAIMING OR SIGNIFYING 3 THAT OBJECTIONS ARE USELESS BECAUSE THEY SIMPLY HAVE THE GOODS 4 ON THE PERSON. 5 WITH ALL OF THAT IN PLACE, THE INTERROGATION 6 ESSENTIALLY BEGINS. 7 Q. IS IT THE CASE THAT IN ATTEMPTING TO ELICIT AN "I DID IT't 8 STATEMENT, THE GOAL IS TO DRIVE A SUSPECT'S CONFIDENCE DOWN? 9 A. YES. THE EASIEST WAY TO THINK ABOUT IT IS AT THE 10 BEGINNING OF AN INTERROGATION -- CERTAINLY, AT THE BEGINNING 11 OF AN INTERROGATION AS CONDUCTED IN THIS COUNTRY WHERE A 12 SUSPECT HAS THE RIGHT TO REFUSE INTERROGATION -- THE FIRST 13 PROBLEM IS TO GET THE SUSPECT TO BE WILLING TO TAKE PART IN 14 THE INTERROGATION THAT THE OBJECT IS TO -- IN THIS COUNTRY TO BEGIN 16 THE INTERROGATION BY ENSNARING THE SUSPECT, BY GETTING THEM TO 17 BE WILLING TO TAKE PART, BY ALLOWING THEM TO BELIEVE THAT THEY 18 WILL BE ABLE TO SURVIVE THE INTERROGATION WITHOUT BEING 19 ARRESTED, WITHOUT BEING CONVICTED. THIS IS IN THE EARLY

35 20 PHASE. THIS IS TO SET IT UP AND TO BEGIN THE PROCESS OF 21 INTERACTING WITH THE SUSPECT. 22 IN A DIFFERENT SITUATION IN WHICH THE POLICE HAVE 23 THE RIGHT TO INTERROGATE OVER THE OBJECTIONS OF A SUSPECT, 24 THAT NEED NOT BE DONE. 25 BUT IN THE USUAL CASE, INITIALLY, THE OBJECT, WE JUDITH N. DUDECK - OFFICIAL REPORTER - USDC <<< Page 31 >>> 915 OFSHE - DIRECT/DANIS 1 ASSUME THAT THE SUSPECT IS WILLING TO UNDERGO THE 2 INTERROGATION BECAUSE THEY BELIEVE THAT THEY CAN SUCCESSFULLY 3 SURVIVE IT. SO WE CAN CHARACTERIZE THEIR CONFIDENCE INITIALLY 4 BEFORE THEY KNOW WHAT THE POLICE HAVE AS REASONABLY HIGH. 5 Q. WHAT IS DONE AFTER -- BEYOND THE SETTING AND THE DEMEANOR 6 OF THE INTERROGATORS TO THEN DRIVE A PERSON'S CONFIDENCE LEVEL 7 DOWN? 8 A. OVER THE COURSE OF THE INTERROGATION, WHAT WILL TEND TO 9 HAPPEN IS THE POLICE WILL REVEAL THE EVIDENCE THAT THEY HAVE 10 OR THE EVIDENCE THAT THEY CLAIM THAT LINKS THE PERSON TO THE 11 CRIME. AND THE PROCESS OF REVEALING THAT EVIDENCE IS THE 12 INTERROGATION ITSELF. 13 IT IS TYPICALLY REVEALED SLOWLY. THE SUSPECT IS 14 ALLOWED TO DENY IT. THE OBJECT IS TO COUNTER THE DENIALS, TO 15 NEGATE THE DENIALS, AND TO ADD ADDITIONAL EVIDENCE. 16 THE OBJECT IS TO CREATE A PERCEPTION IN THE MIND OF 17 THE SUSPECT THAT THE EVIDENCE AGAINST HIM OR HER IS

36 18 OVERWHELMING, THAT THE POLICE HAVE MORE THAN ENOUGH EVIDENCE 19 TO BE PERSONALLY CONVINCED THAT THE PERSON COMMITTED THE 20 CRIME, MORE THAN ENOUGH EVIDENCE TO CONVINCE A TRIER OF FACT 21 THAT THE PERSON COMMITTED THE CRIME OFTEN IN THE COURSE OF THIS, THE SUSPECT WILL BE 23 ENCOURAGED TO THINK ABOUT WHAT THIS IS GOING TO LOOK LIKE IN 24 COURT -- "WHEN IN COURT WE REVEAL THAT YOUR FINGERPRINTS ARE 25 FOUND AT THE CRIME SCENE; THE HAIR SAMPLE WE TOOK FROM YOU JUDITH N. DUDECK - OFFICIAL REPORTER - USDC <<< Page 32 >>> 916 OFSHE - DIRECT/DANIS 1 MATCHES A HAIR FOUND ON THE VICTIM; YOUR SEMEN IS A DNA 2 MATCH," AND SO ON AND SO FORTH THAT WHAT -- THE INTENTION IS TO CHANGE THE 4 SUSPECT'S PERCEPTIONS OF THE LIKELIHOOD OF HIS NOT BEING 5 ARRESTED INTO A CERTAINTY OF BEING ARRESTED, AND NOT ONLY 6 BEING ARRESTED BUT BEING TRIED AND CONVICTED AND SEVERELY 7 PUNISHED. 8 Q. ALL RIGHT. DO THE SUCCESS OF THESE TACTICS THAT INCLUDE 9 WHAT YOU HAVE JUST DESCRIBED AND THE SETTING AND THE 10 DEMEANOR -- SUCCESS IN ELICITING AN "I DID IT" STATEMENT 11 DEPEND ON A PERSON BEING GUILTY? 12 A. NO. THE TACTICS THAT INTERROGATORS USE DO NOT EVEN DEPEND 13 ON THE EXISTENCE OF ACTUAL EVIDENCE. 14 NOW, USUALLY IF AN INTERROGATION IS DONE PROPERLY, 15 THERE IS A SUFFICIENT BASIS TO GO TO THE TROUBLE OF DOING AN 16 ACCUSATORY INTERROGATION. IT WOULD BE AN UTTER WASTE OF TIME

37 17 TO SIMPLY RANDOMLY SELECT PEOPLE AND SUBJECT THEM TO 18 ACCUSATORY INTERROGATION. THEY -- THAT PROCEDURE WOULD 19 PRODUCE A CERTAIN NUMBER OF FALSE CONFESSIONS, BUT IT'S HARDLY 20 SEEKING JUSTICE. 21 TYPICALLY, WHEN AN INTERROGATION IS COMMENCED, IT IS 22 BECAUSE -- AND EVEN ACCORDING TO THE POLICE TRAINING 23 MANUALS -- THE INTERROGATOR HAS SUFFICIENT EVIDENCE TO BELIEVE 24 THAT THE SUSPECT IS GUILTY. 25 STARTING WITH THAT, THE INTERROGATOR IS FREE TO ADD JUDITH N. DUDECK - OFFICIAL REPORTER - USDC <<< Page 33 >>> 917 OFSHE - DIRECT/DANIS 1 ADDITIONAL EVIDENCE, WHICH MAY BE WHOLLY MADE UP, IN ORDER TO 2 PRESENT THE APPEARANCE OF A STRONGER CASE. 3 Q. BUT HOW COULD A PERSON WHO HADN'T COMMITTED A CRIME BE 4 BROUGHT TO A STATE WHERE THEY FEEL THAT THEY HAVE NO CHOICE, 5 THAT THEY ARE GOING TO BE CONVICTED IF THEY HAVE AN ALIBI AND 6 THEY KNOW THAT THEY DIDN'T COMMIT IT? 7 A. IF THE PERSON IS SUFFICIENTLY IMPRESSED WITH THE POWER OF 8 THE POLICE, EITHER AT THE MOMENT OR BECAUSE THEY HAVE A LONG 9 HISTORY OF RECOGNIZING THE POWER OF THE POLICE, THEY MAY 10 RECOGNIZE THAT IF IT IS ASSERTED THAT THIS IS WHAT YOUR FUTURE 11 WILL BE, THAT THERE IS SOME LIKELIHOOD THAT THE AUTHORITY 12 FIGURE ASSERTING THAT CAN MAKE THAT HAPPEN. SO THAT'S ONE 13 FACTOR. 14 THE OTHER IS THE PERSON HAS NOW BEEN CONFRONTED WITH

38 15 WHAT APPEARS TO BE INCONTROVERTIBLE EVIDENCE OF THEIR GUILT, 16 THE KIND OF EVIDENCE THAT WOULD CONVINCE ANY FAIR-MINDED 17 OBSERVER OF THE SITUATION, INCLUDING THE PERSON HIMSELF WHEN 18 OBSERVING THE EVIDENCE, WHEN LOOKING AT THE EVIDENCE, THAT 19 THERE IS SUFFICIENT EVIDENCE TO CONVICT ME. 20 Q. OKAY. WOULD THAT INCLUDE A SITUATION WHERE SOMEBODY IS 21 BROUGHT INTO A ROOM TO CONFRONT A SUSPECT AND THAT PERSON 22 SAYS, "YOU DID IT WITH ME"? 23 A. YES. THAT'S A TYPICAL TACTIC, ONE THAT I HAVE SEEN USED 24 OFTEN IN ORDER TO HELP CONVINCE SOMEONE THAT THEIR SITUATION 25 HAS BEEN RADICALLY CHANGED. JUDITH N. DUDECK - OFFICIAL REPORTER - USDC <<< Page 34 >>> 918 OFSHE - DIRECT/DANIS 1 Q. WOULD THAT INCLUDE A SITUATION WHERE A SUSPECT WAS TOLD, 2 "NOT ONLY DID THIS PERSON JUST NAME YOU, BUT WE HAVE GOT 3 SOMEBODY ELSE OUT THERE WHO IS GOING TO NAME YOU IN THIS 4 CRIME"? 5 A. YES. IT'S EFFECTIVE TO NAME ADDITIONAL CO-PERPETRATORS 6 WHO ARE GOING TO ROLE AND TESTIFY OR EYEWITNESSES OR TO CLAIM 7 PHYSICAL EVIDENCE. ANY OF THESE PLOYS CAN BECOME EFFECTIVE 8 TACTICS FOR CHANGING SOMEONE'S PERCEPTION OF THEIR SITUATION. 9 Q. WOULD CHALLENGING THE ALIBI THAT A PERSON PROVIDED BE A 10 PLOY THAT WOULD BE USED TO DRIVE THEIR CONFIDENCE DOWN? 11 A. YES. I HAVE SEEN SITUATIONS IN WHICH SOMEONE OFFERS AN 12 ALIBI, AND THEY ARE TOLD THAT THE PERSON WHO IS THEIR ALIBI 13 WITNESS HAS REPUDIATED THE ALIBI WHEN, IN FACT, THE POLICE

39 14 HAVE SIMPLY NOT EVEN SPOKEN TO THE PERSON OR WOULD SIMPLY 15 REJECT THE ALIBI OR NOT NOTICING, NOT REACTING, WHEN THE 16 PERSON OFFERS THE ALIBI AND SHIFTING BACK AND REFOCUSING THE 17 INTERACTION ON, "WE HAVE THESE THREE PEOPLE WHO SAY YOU WERE 18 THERE," SIMPLY IGNORING IT, NOT GIVING IT ANY CREDIT IN THE 19 INTERACTION BETWEEN THEM. 20 Q. TO ELICIT A STATEMENT FROM EITHER A GUILTY OR AN INNOCENT 21 SUSPECT, IS IT ENOUGH TO SIMPLY DRIVE THEIR CONFIDENCE LEVEL 22 DOWN TO ZERO? I MEAN, WILL THAT PRODUCE A STATEMENT BY ITSELF 23 NORMALLY? 24 A. SOMETIMES FOR SOMEONE WHO IS -- WHO KNOWS THEY ARE GUILTY, 25 WHO KNOWS THEY ARE CAUGHT, THEY MAY SIMPLY GIVE UP AND SAY, JUDITH N. DUDECK - OFFICIAL REPORTER - USDC <<< Page 35 >>> 919 OFSHE - DIRECT/DANIS 1 "OKAY. I DID IT." AND I HAVE SEEN THAT HAPPEN IN 2 INTERROGATIONS AFTER THE STRENGTH OF THE EVIDENCE IS 3 PRESENTED. 4 USUALLY, HOWEVER, IT'S NECESSARY TO OFFER SOME SORT 5 OF INDUCEMENT AT THAT POINT. 6 NOW, THE INDUCEMENT THAT CAN BE USED CAN RUN FROM 7 SOMETHING THAT IS, IN FACT, QUITE MINIMAL. 8 Q. WHAT WOULD BE AN EXAMPLE OF A MINIMAL INDUCEMENT? 9 A. NOW, AFTER HAVING CONVINCED SOMEONE THAT THE EVIDENCE IS 10 OVERWHELMING, AN INTERROGATOR MIGHT SAY, "LOOK, GET IT OFF 11 YOUR CHEST. IT'S THE CHRISTIAN THING TO DO. BE A MAN ABOUT

40 12 IT. TELL US THE TRUTH. AT LEAST LET US KNOW THAT YOU HAVE 13 SOME REMORSE." SOME WAY OF SUGGESTING IN A SITUATION IN WHICH 14 THE COST OF NOW ADMITTING WHAT IS OBVIOUS IS MINIMAL. 15 Q. WHAT WOULD BE AN EXAMPLE OF A MORE SEVERE OR MAXIMUM 16 INCENTIVE? 17 A. "IF YOU DON'T CONFESS, IF YOU DON'T DO WHAT I WANT YOU TO 18 DO, I WILL MAKE SURE YOU GET THE DEATH PENALTY, OR I WILL MAKE 19 SURE THAT YOU GET SENTENCED TO LIFE WITHOUT POSSIBILITY OF 20 PAROLE." THAT SORT OF POWERFUL THREAT CAN BE USED TO COERCE 21 AN ADMISSION FROM SOMEONE WHO IS EITHER GUILTY OR SOMEONE WHO 22 IS INNOCENT. 23 Q. ON THIS SPECTRUM BETWEEN MINIMAL AND MAXIMUM INCENTIVES, 24 WHERE WOULD YOU PLACE SOMETHING LIKE THIS? "IF YOU DON'T 25 CONFESS, YOU ARE GOING TO GET 30 YEARS. BUT IF YOU DO JUDITH N. DUDECK - OFFICIAL REPORTER - USDC <<< Page 36 >>> 20 9 OFSHE - DIRECT/DANIS 1 CONFESS, YOU'LL BE OUT IN SEVEN." 2 A. THAT'S A TYPICAL STRATEGY FOR LAYING OUT TWO LEVELS OF LEVEL 3 PUNISHMENT AND ALLOWING THE PERSON TO CHOOSE THE LOWER 4 OF PUNISHMENT. 5 IT IS EFFECTIVELY SAYING, "THERE IS A HARSH 6 PUNISHMENT WHICH I, IN EFFECT, AM GUARANTEEING YOU WILL COOPERATE, 7 RECEIVE IF YOU CONTINUE TO RESIST. WHEREAS, IF YOU

41 8 I WILL HELP YOU. I WILL" -- I HAVE SEEN INTERROGATORS OR COURT YOU IN LOWER 9 HEARD INTERROGATORS SAY, "I WILL BE ABLE TO STAND UP IN 10 WITH YOU AND EXPLAIN TO THE JUDGE AND THE JURY HOW SORRY 11 ARE AND HOW MUCH YOU REGRET HAVING DONE THIS, AND IT WAS 12 SOME SENSE ACCIDENTAL AS WELL. AND THAT WILL LEAD TO A 13 LEVEL OF PUNISHMENT." 14 Q. ARE THERE ANY -- ONCE A PERSON HAS MADE THIS STATEMENT, "I THAT 15 DID IT; I COMMITTED THIS CRIME," ARE THERE ANY INFERENCES 16 CAN BE MADE FROM THAT WITH RESPECT TO WHETHER THEY WERE 17 ACTUALLY INVOLVED OR NOT? 18 A. BASED ON THAT ALONE, ONE CANNOT MAKE A SUFFICIENTLY 19 RELIABLE PREDICTION IN ORDER TO KNOW WHETHER A PARTICULAR 20 PERSON IS MAKING A TRUE OR FALSE STATEMENT. WHETHER 21 Q. WHAT, IF ANYTHING, CAN BE DONE TO TRY TO DETERMINE 22 THE STATEMENT IS TRUE OR FALSE? THOROUGH 23 A. THE ONLY THING THAT CAN BE DONE IS TO COLLECT A 24 POSTADMISSION NARRATIVE OF THE CRIME AND EVALUATE THAT TO 25 DETERMINE WHETHER OR NOT THE PERSON DEMONSTRATES ACTUAL 0 JUDITH N. DUDECK - OFFICIAL REPORTER - USDC <<< Page 37 >>> KNOWLEDGE OF THE CRIME. OFSHE - DIRECT/DANIS

42 2 Q. WHAT KIND OF INFORMATION WOULD YOU EXPECT TO GET OUT OF A 3 PERSON WHO HAD ACTUAL KNOWLEDGE OF THE CRIME? 4 A. THEY OUGHT TO BE ABLE TO TELL YOU -- TELL THE INTERROGATOR 5 THE HISTORY OF THE CRIME FROM THE TIME IT WAS FIRST THOUGHT OF 6 OR PLANNED, WHAT STEPS WERE TAKEN IN THE PLANNING, THE 7 EXECUTION OF IT. THEIR DESCRIPTION OF THE CRIME, OF THE ACTS 8 OF THE CRIME, OUGHT TO FIT THE PHYSICAL FACTS OF THE CRIME. 9 THEIR DESCRIPTION OF THE CRIME MIGHT BE CORROBORATED 10 BY STATEMENTS GIVEN BY OTHERS, OR THEY MIGHT BE INCONSISTENT 11 WITH STATEMENTS GIVEN BY OTHERS. 12 AND THEY ALSO MIGHT BE ABLE TO LEAD THE POLICE TO, 13 OBVIOUSLY, DRAMATIC, NEW PIECES OF EVIDENCE PREVIOUSLY UNKNOWN 14 TO THEM, THE MISSING LOOP, THE GUN AND SO ON. 15 Q. WHAT IF A PERSON HAD BEEN TOLD BY THE POLICE -- MOST OF 16 THE PRIMARY FACTS OF THE CRIME, WHERE THE -- THEY HAD LEFT 17 FROM, WHERE THEY HAD GONE, SOME OF THE FACTS OF WHAT HAD 18 HAPPENED AT THE SCENE. WOULDN'T YOU EXPECT TO SEE IN THE 19 CONFESSION OR THE STATEMENT OR THE POSTADMISSION NARRATIVE 20 SIMPLY A REPLAY OF THOSE FACTS IF, IN FACT, THE PERSON HAD 21 BEEN INVOLVED? 22 MR. ZANIDES: OBJECTION. 23 THE COURT: I'M SORRY. I JUST DIDN'T UNDERSTAND THE 24 QUESTION. 25 MR. DANIS: OKAY. JUDITH N. DUDECK - OFFICIAL REPORTER - USDC <<< Page 38 >>> 922 OFSHE - DIRECT/DANIS

43 1 Q. (BY MR. DANIS) FOR A PERSON WHO HAD ACTUAL KNOWLEDGE OF 2 THE CRIME BUT HAD BEEN FED THOSE FACTS BY THE POLICE, WHEN 3 THEY GIVE A POSTADMISSION NARRATIVE, WOULDN'T YOU SIMPLY 4 EXPECT TO SEE A REPLAY OF THE FACTS THE POLICE HAD GIVEN THEM? 5 A. YES. YOU WOULD EXPECT THEM TO INCLUDE WHAT THEY HAD BEEN 6 TOLD, BUT YOU WOULD ALSO EXPECT THEM TO INCLUDE A GREAT DEAL 7 MORE. 8 Q. WHAT ELSE MIGHT YOU EXPECT TO FIND? 9 A. A BETTER HISTORY OF THE PLANNING THAN THE POLICE KNOW AND 10 CAN GIVE THEM, THE IDENTIFICATION OF OTHER PEOPLE INVOLVED, AN 11 ACCURATE DESCRIPTION OF THE CRIME FACTS, THE ACTUAL CRIME 12 SCENE. 13 THEY MIGHT, FOR EXAMPLE, BE ABLE TO EXPLAIN 14 ANOMALIES IN THE CRIME SCENE THAT DON'T MAKE SENSE OR APPEAR 15 TO MAKE SENSE WHEN SIMPLY GIVEN THE FORENSIC REPORTS. 16 AND THEN, OF COURSE, THEY MIGHT BE ABLE TO 17 CONTRIBUTE INFORMATION THAT WOULD DEMONSTRATE THEIR KNOWLEDGE 18 BY CORROBORATING THEIR CONFESSION BY IDENTIFYING SOMETHING 19 UTTERLY UNKNOWN, SUCH AS WHERE THE WEAPON IS, WHERE THE LOOT 20 IS. 21 Q. IN YOUR EXPERIENCE, DO YOU NOTICE ANY DIFFERENCE BETWEEN 22 THE POSTADMISS ION NARRATIVES OF PEOPLE WHO HAVE ACTUAL 23 KNOWLEDGE OF A CRIME AS OPPOSED TO THOSE WHO DON'T HAVE ACTUAL 24 KNOWLEDGE OF THE CRIME? 25 A. YES. JUDITH N. DUDECK - OFFICIAL REPORTER - USDC <<< Page 39 >>>