1           SUPERIOR COURT OF THE STATE OF CALIFORNIA 
                               IN AND FOR THE COUNTY OF SANTA CLARA
                2                     SOUTH COUNTY FACILITY
                       
                3 

                4      BEFORE THE HONORABLE EDWARD F. LEE

                5      
                       
                6      THE PEOPLE OF THE STATE      )
                       CALIFORNIA,                  )
                7                                   )
                                Plaintiff,          )
                8                                   )
                        vs.                         )Case No. FF301260
                9                                   )
                       AMY MARIE GARVIN,            )
               10                                   )
                                Defendant.          )
               11      _____________________________)
                       
               12 

               13              REPORTER'S TRANSCRIPT OF PROCEEDINGS

               14                        October 6, 2003

               15      

               16      

               17      

               18      APPEARANCES:

               19      For the Plaintiff:     MARK HOOD,
                                              DEPUTY DISTRICT ATTORNEY
               20      
                       
               21      
                       
               22      
                       For the Defendant:     LEONARD CRAVENS,
               23                             KENNETH PINTO,
                                              ATTORNEYS AT LAW
               24                             
                                              
               25      
                       
               26      
                       
               27      
                       
               28      MICHELLE CALDWELL, CSR 9045, Official Reporter
                       



                  
                  
                  
                                                                          1
                1 SAN MARTIN, CALIFORNIA                    OCTOBER 6, 2003
                           
                2 

                3          THE COURT:  Have a seat, Doctor.  As soon as 

                4 you're comfortably settled in, if you would give us your 

                5 full name, please, and spell it for the record.  

                6          THE WITNESS:  Richard Ofshe, O-f-s-h-e.

                7          THE COURT:  Thank you.  Counsel?  

                8                 DIRECT EXAMINATION BY MR. CRAVENS

                9      Q.  Good afternoon, Doctor Ofshe.  

               10      A.  Good afternoon.

               11      Q.  What -- where do you live?

               12      A.  Berkeley.

               13      Q.  That's in California?

               14      A.  Correct.

               15      Q.  And what's your current occupation?

               16      A.  I'm a professor at the University of California 

               17 at Berkeley.  I'm an emeritus professor recalled, and I 

               18 continue to teach and do research.

               19      Q.  What's your area of teaching?

               20      A.  Umm, I'm a social psychologist.  I teach in the 

               21 sociology department.  My area of specialty is social 

               22 psychology.  Within that, my area of research specialty 

               23 and teaching is on the topic of extreme forms of 

               24 influence.

               25      Q.  And could you tell the Court what your -- where 

               26 your training -- in what area of training did you have?

               27      A.  I have a bachelor's degree from Queens College 

               28 of the City of University of New York, master's degree 




                  
                  
                  
                                                                          2
                1 from the same institution, Ph.D from Stanford University.

                2      Q.  And you mentioned social psychology?

                3      A.  Correct.

                4      Q.  What is social psychology?

                5      A.  Specialty area within psychology and sociology, 

                6 taught in both departments.  Just depends on where you 

                7 get your basic training in the field.  I could be in, I 

                8 suppose, either department.

                9      Q.  Are you a member of any professional societies 

               10 or organizations?

               11      A.  I'm -- I think I'm a member of the American 

               12 psychological Society, American Psychological 

               13 Association, American Sociological Association, and 

               14 probably some regional associations if I pay my dues.

               15      Q.  Is there any particular licensing procedures or 

               16 requirements in any of these occupations (sic)?

               17      A.  No.

               18      Q.  Is there any type of certification that you get 

               19 from any governmental agency?

               20      A.  No.

               21      Q.  What about a private agency?

               22      A.  Well, there was a certification committee within 

               23 the American Sociological Association to certified social 

               24 psychologists.  I served on that committee, but it was 

               25 short-lived.  I'm not sure if they even still have one.

               26      Q.  As a result of your work in this particular 

               27 field, have you received any honors or awards?

               28      A.  I was awarded a John Simon Guggenheim Memorial 




                  
                  
                  
                                                                          3
                1 fellowship, which is considered an honor in my field.  I 

                2 was a member of the three-person research and reporting 

                3 group that won a Pulitzer Prize, the gold medal for 

                4 public service which is actually awarded to the 

                5 organization for the work of particular individuals.  So 

                6 we did the work that produced a Pulitzer Prize for the 

                7 Point Reyes Light Newspaper, which is a weekly paper in 

                8 San Marin County.  It was the study of a violent cult 

                9 group by the name of Synanon.

               10      Q.  Have you published any papers in relation to 

               11 your field?

               12      A.  Yes.

               13      Q.  And could you give some of the high points of 

               14 those papers?

               15      A.  Well, over the years, I've published a number of 

               16 books and papers, all in the field of social psychology.  

               17 But on the topic of police interrogation, I started 

               18 publishing in about 1989 and have published a series of 

               19 papers starting in 1989 with a paper called Coerced 

               20 Confessions: The Logic of Seemingly Irrational Action, an 

               21 encyclopedia in my field in 1992.  Also in 1992, another 

               22 paper, Inadvertent Hypnosis During Interrogation.  

               23          And then in 1997, I started publishing a series 

               24 of fairly long papers with my colleague Richard Leo, the 

               25 first one being The Social Psychology of Police 

               26 Interrogation, Theory and Classification of True and 

               27 False Confessions, and then a paper in the Denver 

               28 University Law Review called The Decision to Confess 




                  
                  
                  
                                                                          4
                1 Falsely, Rational Choice and Irrational Action, and then 

                2 The Consequences of False Confessions, Deprivations of 

                3 Liberty in the Age of Psychological Interrogation.  And 

                4 then most recently, The Truth About False Confessions.  

                5          And then also an updated version of the 

                6 encyclopedia, an entry in the encyclopedia of my field 

                7 which included work on police interrogation and 

                8 influence.  

                9          Then there have been a few minor papers as well.  

               10 A lengthy series is now being worked, and hopefully we'll 

               11 have a book that will arise out of these papers within a 

               12 year or so.

               13      Q.  Now, you mentioned these -- some of these papers 

               14 deal with police interrogation.  

               15      A.  The ones I have mentioned do.  There are 30, 40 

               16 papers that deal with other topics in social psychology.  

               17 Since we're here about police interrogation, that's what 

               18 I thought you were asking about.

               19      Q.  Well, if -- would these papers be equally 

               20 applicable if it was a non-police person doing the same 

               21 kind of interrogation?

               22      A.  Sure.

               23          MR. HOOD:  Objection.  Lack of foundation.  I 

               24 don't think Mr. Ofshe's done any studies whatsoever on 

               25 interrogations by non-police officers.

               26          THE COURT:  The Objection is noted and taken 

               27 under submission.

               28          THE WITNESS:  The papers are all on tactics of 




                  
                  
                  
                                                                          5
                1 police interrogation.  And some of the tactics are 

                2 common, used by both law enforcement officers and 

                3 security people.  Often they're taught to use these 

                4 methods at the same training courses.

                5          BY MR. CRAVENS:  Have you -- how long have you 

                6 been publishing in the area of police interrogation and 

                7 the sub-area of false confessions?  

                8      A.  Well, it isn't false confessions.  It's 

                9 influence in police interrogation, which can sometimes 

               10 result in true confessions and sometimes result in false 

               11 confessions.  I've been publishing on tactics of 

               12 influence and interrogation for at least 14 years.

               13      Q.  Have you worked as a consultant with any law 

               14 enforcement agencies, either police or prosecuting or 

               15 defense agencies?

               16      A.  Over the years, I've been a consultant to the 

               17 Marin County Sheriff's Department; the Office of the 

               18 Attorney General of the State of California; the U.S. 

               19 Attorney's office in Los Angeles on two occasions, one 

               20 involving the Delorean case; the Office of the Attorney 

               21 General of the State of Arizona; the U.S. Department of 

               22 Justice, Tax and Criminal Division; the prosecuting 

               23 agency of West Virginia; the L.A. D.A.'s office; the 

               24 Internal Revenue Service; U.S. Attorney's Office in West 

               25 Virginia, Thirston County; Washington; State's Attorney's 

               26 Office in Fort Lauderdale, Florida; Office of the 

               27 Governor of the State of Missouri; the Office of the 

               28 District Attorney in Los Angeles, in connection with the 




                  
                  
                  
                                                                          6
                1 second Menendez Brothers' trial; the prosecuting 

                2 attorney's office in Franklin County, Indiana; and I'm 

                3 currently working on a case at the request of a 

                4 prosecutor from the State's -- the California Attorney 

                5 General's Office.

                6      Q.  So you do work for both prosecutors and defense; 

                7 correct?

                8      A.  I'll look at materials whenever they're provided 

                9 to me.

               10      Q.  Now, have you presented lectures or seminars to 

               11 law enforcement agencies?

               12      A.  Yes.

               13      Q.  What about -- what about attorneys and judges?

               14      A.  All three over the years.  I've spoken before a 

               15 large number of non-social science associations.  

               16 Probably the largest category would be defense attorneys, 

               17 and then a mixed groups of defense attorneys and 

               18 prosecutors.  A special session, for example, of the 

               19 American Bar Association, and it might include both 

               20 prosecutors and defense attorneys.  

               21          I've been requested to lecture to judges on the 

               22 issue of interrogation and confession and have put on 

               23 continuing education courses for judges or a course for 

               24 judges on that subject at the request of the Supreme 

               25 Court of the State of Florida, and I'm scheduled to 

               26 lecture again as part of continuing education for the 

               27 Judiciary in Canada in December.

               28      Q.  Particularly in the area of interrogation and 




                  
                  
                  
                                                                          7
                1 false confessions, have you testified as an expert 

                2 witness before?

                3      A.  Yes.

                4      Q.  And how many -- how many times have you 

                5 testified as an expert witness in those areas?

                6      A.  A hundred and ninety-three times in thirty-one 

                7 states.

                8      Q.  Have you ever testified in California before 

                9 today?

               10      A.  On the subject of influence and police 

               11 interrogation, I've testified in California 64 times.

               12      Q.  With respect to police interrogations, and 

               13 particularly with respect to false confessions, are there 

               14 any recognized studies in the field to support or discuss 

               15 that phenomenon?

               16      A.  False confession in particular?  There are 

               17 probably three benchmark studies.  There are lots of 

               18 small studies about interrogation and confession and 

               19 false confession, particularly false confession.  But as 

               20 far as the major studies, there are three that establish, 

               21 one, that false confessions happen with some regularity; 

               22 and two, say something about how dangerous they are when 

               23 it comes to producing miscarriages of justice.  

               24          The first would be a study done by Professors 

               25 Biddot and Ratliff published in the Stanford Law Review 

               26 on miscarriages of justice in potentially capital cases.  

               27 They studied 350 examples of miscarriages in capital 

               28 cases and concluded in their analysis that 14 percent of 




                  
                  
                  
                                                                          8
                1 the miscarriages were caused by false confession.  Then 

                2 there's a study done at the Center on Wrongful 

                3 Convictions at Northwestern University Law School where 

                4 I'm a fellow of that center but was not involved in the 

                5 study.  This is a study of miscarriages in homicide cases 

                6 in the State of Illinois.  And in that study, slightly 

                7 more than 50 percent of the miscarriages involved a false 

                8 confession.  

                9          Then there's the ongoing work being done by the 

               10 Innocence Project, and I believe the current number is a 

               11 hundred and thirty-eight exonerations arising from DNA 

               12 analysis of people who had been convicted or had pled 

               13 guilty, I suppose, in relation to charges which were then 

               14 shown to be simply wrong.  

               15          Of those, of the 138, I believe it's about 25 

               16 percent of those cases involved false confession of the 

               17 individual who was subsequently shown to be innocent.

               18      Q.  Have you ever not been qualified -- have you 

               19 ever had a court not qualify you to testify as an expert 

               20 witness?

               21      A.  No one has ever felt that I'm not qualified.

               22      Q.  Okay.  As far as your work in false confessions 

               23 in interrogations, can you describe some of the theories 

               24 on what that kind of work is based on?

               25      A.  Well, most of the modern work on interrogation 

               26 and confession and false confession is really based on 

               27 theories of decision making, fundamental rational 

               28 decision making.  And then it's coordinated to the 




                  
                  
                  
                                                                          9
                1 particularities, exactly what goes on in interrogation.  

                2 That brings in the studies of social influence.  Police 

                3 interrogation is simply a method of influence that has 

                4 developed over the years that police are taught to use, 

                5 police and interrogators, interrogators are taught to 

                6 use.  It's not a naturally occurring phenomena.  It's 

                7 something they're typically trained to do.  And because 

                8 the training is fairly -- well, uniform is too strong.  

                9 The training has great similarities.  I tend to see 

               10 examples of the same sort of interrogation literally from 

               11 Miami, Florida to Berel, Alaska.  It's the method that's 

               12 used in the United States.

               13      Q.  And are you familiar with -- are you familiar 

               14 with any particular -- you say there's common methods 

               15 that you see across the country; correct?

               16      A.  Yes.

               17      Q.  Is there any particular method that stands out 

               18 in your mind?

               19      A.  Well, I mean, I can explain how modern 

               20 interrogation works, if that's what you're asking.

               21      Q.  I'm almost there.  

               22      A.  All right.

               23      Q.  Let me back up a little bit.  The body of work 

               24 in false confession and interrogation, are those -- the 

               25 studies you've talked about -- are they generally 

               26 accepted in the scientific community?

               27      A.  I just mentioned the three principal studies.  

               28 The leading textbook reference book basically for 




                  
                  
                  
                                                                         10
                1 professionals in the field is now in its second edition.  

                2 And the bibliography in that text runs to approximately a 

                3 thousand citations.  Those citations go to the literature 

                4 on interrogation, confession, and false confession 

                5 without even touching -- except for a few examples -- the 

                6 fundamental literature on influence and decisionmaking.  

                7 There's a highly specialized literature.  It's pervasive.  

                8          The study of interrogation and confession is a 

                9 specialized topic but well-recognized and a well-accepted 

               10 topic in the field of social psychology.

               11      Q.  Have you participated in any court proceedings 

               12 that discuss the issue of admissibility based on the Fry 

               13 standard?  First of all, let me stop.  Do you know what 

               14 the Fry standard is?

               15      A.  I think so.

               16      Q.  Have you participated in the hearings that 

               17 addressed -- the hearings of the Fry standards regarding 

               18 false confessions?

               19      A.  I've done at least 18 Fry hearings.

               20      Q.  Any in the State of California?

               21      A.  Two.

               22      Q.  Any in this particular county?

               23      A.  I think so, in the main courthouse in San Jose 

               24 in a case called Parelez.  For whatever it's worth, Fry 

               25 hearings are uncommon in California.  In my experience in 

               26 the 60 times, 60 some odd times I've testified, it's only 

               27 come up once or twice.

               28      Q.  In those particular proceedings you testified 




                  
                  
                  
                                                                         11
                1 in, you've gone on to present testimony that's been based 

                2 on your body of work in interrogations and false 

                3 confessions?

                4      A.  Correct.

                5      Q.  And I think you mentioned this earlier.  Is 

                6 there methods and publications that train people how to 

                7 do these kinds of interrogations?

                8      A.  Most interrogators have to be sent to school to 

                9 learn an interrogation method.  It's not a naturally 

               10 occurring phenomena, and people are trained on how to do 

               11 it.

               12      Q.  Okay.  Could you mention -- are you familiar 

               13 with these methods of training?

               14      A.  Somewhat.  I can't claim to be familiar with 

               15 everything that's done, but I'm familiar with the 

               16 principal training organization and its derivatives.  

               17 That would be the Reid organization.  They do more 

               18 training of police and private interrogators than any 

               19 other organization in the U.S.

               20      Q.  And tell us how the interrogation works in the 

               21 modern interrogation methods?

               22      A.  Okay.  For that, to do it efficiently, if I 

               23 could have an easel and something to write with, I could 

               24 explain it.

               25          THE COURT:  Michael, donde esta our easel?  

               26          THE BAILIFF:  I have to fetch another deputy to 

               27 get it, I guess.

               28          THE COURT:  Hold on.  Let me see.  I have a pad 




                  
                  
                  
                                                                         12
                1 of paper.  Let's see if we can find one out here.  

                2          If you want to get started, you can do this, or 

                3 perhaps counsel table, or we can find a flat surface 

                4 while we find the actual easel.

                5          Let's go off the record for a second.  

                6          (A discussion was held off the record.)

                7          THE COURT:  All right.  We've got the easel.  Go 

                8 ahead and proceed.

                9          THE WITNESS:  In order to understand how modern 

               10 interrogation works, I'll simply use this diagram and 

               11 speak in terms of what happens over the course of an 

               12 interrogation.  In this diagram, this axis, running from 

               13 zero to one hundred-percent is intended to denote the 

               14 confidence that a person has that all they need to do is 

               15 say "I didn't do it," and they will get through the 

               16 upcoming -- whether it's called an interrogation or it's 

               17 called an interview.  It's still -- that is, in fact, an 

               18 interrogation.  So they get through the upcoming session, 

               19 whatever it's called, without there being a major change 

               20 in their life circumstances.  

               21          This axis running from zero to X refers simply 

               22 to the length of time that the interrogation goes on.  

               23 Any modern interrogation can be split into two parts.  

               24 The break point comes when the person has been gotten to 

               25 say, "I did it," to make an admission that they have some 

               26 involvement in the crime.  

               27          Everything that happens up to this point, I'll 

               28 refer to as the preadmission phase.  And everything that 




                  
                  
                  
                                                                         13
                1 happens afterwards is the post-admission phase.  An 

                2 interrogator who is trained to do the job properly knows 

                3 that it's the post-admission phase that's crucial.  The 

                4 preadmission phase is like one sees on television.  And 

                5 then when a person breaks, that's when the screen goes 

                6 dark, and there's a break for commercial.  

                7          But this is the important part of the 

                8 interrogation.  Interrogators should be trained, and 

                9 typically are trained, to seek to get a confession to the 

               10 crime; that is, a full and detailed account of the 

               11 person's involvement in the crime that corroborates the 

               12 "I did it" statement.  

               13          The way to do that is to get the person to 

               14 reveal that they have factual knowledge of the 

               15 circumstances of the crime, something that's not 

               16 available to the general public, something that the 

               17 perpetrator would reasonably be expected to know, 

               18 something that has not been told to the person in the 

               19 preadmission phase, not community rumor, so on.  By 

               20 getting a detailed post-admission narrative of the crime, 

               21 that can be compared to the objectively knowable facts of 

               22 the crime for the purpose of weighing a confession.  

               23          It can turn out that obviously a confession, if 

               24 it fits the facts of the crime, if it corroborates the "I 

               25 did it" statement because it describes things that make 

               26 the person at least a witness to the crime, is powerful 

               27 evidence that the "I did it" statement ought to be 

               28 weighed heavily against.  A confession can be almost 




                  
                  
                  
                                                                         14
                1 useless if it's formatted by the interrogator, and the 

                2 person simply agrees, because that doesn't demonstrate 

                3 the person had the knowledge.  It simply demonstrates the 

                4 person has become willing to agree to what the 

                5 interrogator has to say.  

                6          The third circumstance can be that a person can 

                7 actually confess to having committed a crime, give a 

                8 detailed account of the crime which, upon careful 

                9 analysis of the crime, can be evidence supporting the 

               10 assumption that the person is indeed innocent and in fact 

               11 knows nothing about the crime but is simply guessing in a 

               12 matter that would be consistent with what one would 

               13 expect from an individual who was coerced into giving an 

               14 opinion and is, therefore, guessing wrong.  

               15          So it is possible to get to a reasonable answer 

               16 about how to weigh an "I did it" statement by carefully 

               17 analyzing a confession statement in relation to the 

               18 facts; that's a fundament principal, to get corroboration 

               19 to demonstrate the person knows about the crime because 

               20 they were there.  That doesn't tell us how both true and 

               21 false confessions come about.  That's what happens in the 

               22 preadmission phase.  It starts typically with a person 

               23 who is confident, that if they allow the interrogation to 

               24 go forward, they are going to remain okay.  Otherwise, if 

               25 it's a criminal investigation, they may simply invoke 

               26 their right not to take part, and there would be no 

               27 interrogation.  

               28          If someone doesn't believe that they've 




                  
                  
                  
                                                                         15
                1 committed any sort of a crime, they often will be quite 

                2 confident that all they have to do is tell the police or 

                3 the interrogator "I didn't do it" and since they didn't 

                4 do it and they know they didn't do it, they should be 

                5 really at no risk.  

                6          However, interrogation is designed to manipulate 

                7 someone's perception of their situation and to manipulate 

                8 their expectations for the future.  It's that, together 

                9 with the introduction of a motivator that can get someone 

               10 who starts here to eventually get here.  

               11          The way in which it is done is actually very 

               12 simple: There's a stage setting for the interrogation.  

               13 Typically, interrogations are done in a space that's 

               14 controlled by the interrogator as opposed to the 

               15 suspect's comfortable space.  Won't be done at someone's 

               16 home, more likely to be done at a police station or in a 

               17 private area in a private organization.  

               18          The interrogator will appear to be absolutely 

               19 certain about everything that he says.  The interrogator 

               20 will attempt to effect a demeanor that exudes confidence.  

               21 The interrogator will attempt never to let the suspect 

               22 know that they are questioning their own accusations or 

               23 that they are questioning whether the suspect's alibi 

               24 might hold.  The interrogator wants to appear absolutely 

               25 certain of what they're doing.  The stage setting simply 

               26 contributes to the interrogation.  It's not what does the 

               27 job.  What does the job involves first driving the 

               28 person's confidence that they're gonna remain okay from 




                  
                  
                  
                                                                         16
                1 high down to low, for the simple reason that in the 

                2 beginning, if someone is accused of having committed a 

                3 crime, they know they did it, but they don't feel like 

                4 being punished for it, and they simply say "I didn't do 

                5 it."  

                6          To make the admission is a huge step.  It's 

                7 enormously costly.  It's going to change their lives.  

                8 For an innocent person accused of having committed a 

                9 crime, the same analysis exists.  It's hugely costly to 

               10 say "I did it" when I didn't do it, especially when I 

               11 believe all I have to is continue to deny my involvement, 

               12 and I'll be fine.  

               13          The interrogator is trained to introduce a 

               14 series of what I'll refer to as evidence ploys.  Evidence 

               15 ploy is a claim made by an interrogator that I possess 

               16 evidence which, if the claim is true, would tend to link 

               17 you to the crime.  Police interrogators and interrogators 

               18 in general in America use the same rule.  That is, they 

               19 feel that it is appropriate, and it is often legally 

               20 appropriate, for them to invent the existence of evidence 

               21 that they don't have.  They can claim to have 

               22 eyewitnesses.  They can claim -- 

               23          MR. HOOD:  Objection, Your Honor.  I know this 

               24 is a narrative, and that's the quickest way to go.  But I 

               25 feel we should stick to what is relevant in this case.  I 

               26 don't believe there's any evidence of lying or ploys or 

               27 anything like that in this case.  I know the expert does 

               28 have a lot of knowledge about a lot of areas regarding 




                  
                  
                  
                                                                         17
                1 false testimony, but I think we should focus on what's 

                2 relevant to this case, instead of spending so much time 

                3 on examples that don't apply here.

                4          THE COURT:  Response?  It does seem that might 

                5 be helpful in terms of time management.  

                6          MR. CRAVENS:  Your Honor, what we have -- does 

                7 the Court have -- does the Court have the transcript of 

                8 the proceedings between Brandon Greg and -- we also have 

                9 two things for the Court.  Then I think we can -- we can 

               10 speed this up and get to the specific of this case.  I 

               11 think that's what Mr. Hood is trying to do.

               12          THE COURT:  I this so.  For instance, here, if 

               13 there is no evidence of a witnesses -- well, I think he 

               14 was going to get to fingerprints as his third one 

               15 eventually.  But I --

               16          THE WITNESS:  If I might interject, everything 

               17 I'm saying will attach to this case, not the specifics of 

               18 it but the general use of evidence ploys absolutely.  The 

               19 other things I will talk about, absolutely.  That's what 

               20 I'll do next, after giving this general introduction, 

               21 hook this model up to the facts of this particular case.

               22          THE COURT:  Thank you.  Do you have things you 

               23 want me to take a look at?  

               24          MR. CRAVENS:  Yes, Your Honor.

               25          THE COURT:  Let's go ahead and have them marked 

               26 as exhibits.

               27          MR. HOOD:  Your Honor, I'll object to one of the 

               28 exhibits.




                  
                  
                  
                                                                         18
                1          THE COURT:  Okay.  Let's mark it, first, so we 

                2 know what we're objecting to and what we're not.  

                3          How many do you have there?  

                4          MR. CRAVENS:  Two.

                5          THE COURT:  Describe Number 1 for the record.

                6          MR. CRAVENS:  Number 1 is a transcript of an 

                7 interview between Brandon Greg of Ross Stores and Amy 

                8 Marie Garvin, the defendant.

                9          THE COURT:  Exhibit 1.  

               10          Exhibit 2?  

               11          MR. CRAVENS:  Exhibit 2 is a -- a subset or a 

               12 sorted version of the same data, the same words but 

               13 sorted in a matter that makes it easier for the Court and 

               14 for everybody here to determine what the motivators are, 

               15 evidence ploys, and other things that are happening.

               16          THE COURT:  This represents what you believe 

               17 will be a synthesis or subset of the doctor's testimony?  

               18          MR. CRAVENS:  It's a subset of the transcript of 

               19 the interview.

               20          THE COURT:  That will reinforce the anticipated 

               21 expert opinion?  

               22          MR. CRAVENS:  Yes.

               23          THE COURT:  What's the objection?  

               24          MR. HOOD:  With respect to the statements taken 

               25 out of context, they're not relevant.  With respect to 

               26 the statements being bolded, they're not relevant.  

               27 Counsel's trying to take statements out of context, put 

               28 them into blocks where they don't belong, to suggest a 




                  
                  
                  
                                                                         19
                1 statement.  The witness can testify to that.  But to 

                2 submit this conglomeration -- frankly, it's a report 

                3 which is hearsay.  So under hearsay, under 352, it should 

                4 not be admitted.  I have no objection to the transcript.  

                5          THE COURT:  The people's objection to Exhibit 2 

                6 will be noted and under submission.  

                7          Next question of the doctor?  

                8          MR. CRAVENS:  Thank you, Your Honor.  

                9          BY MR. CRAVENS:  Q.  Now, when you talk about -- 

               10 Doctor, when you talk about motivators, what do you mean 

               11 by motivators?  

               12      A.  Let me get to that in one second.  I just want 

               13 to clarify.  An evidence ploy can be a reference to 

               14 evidence that exists or evidence that the interrogator 

               15 wishes existed.  The reason I call it a ploy is it's a 

               16 ploy in the tactical maneuvering of the suspect.  So it 

               17 can be true.  It can be utterly fabricated.  

               18          Now, on the subject of motivators, as an 

               19 interrogator introduced evidence ploys and tries to 

               20 convince the suspect to change his or her perception of 

               21 their situation, going from "I'm gonna be okay if I deny 

               22 it" to "My situation is hopeless: whether I deny or not, 

               23 I'm about to be credited with or arrested for this 

               24 crime."  

               25          If the person can be made to feel hopeless, the 

               26 marginal cost of saying "I did it" is diminished.  It's 

               27 easier.  Doesn't make any difference.  In anticipation of 

               28 being able to convince the person they're hopeless, and 




                  
                  
                  
                                                                         20
                1 that's directed at people who did and did not commit the 

                2 crime, because this is how it's done.  

                3          The interrogator will also typically, early on, 

                4 begin to introduce a motivator and then emphasize the 

                5 motivator as the interrogation progresses through the 

                6 preadmission phase.  That motivator is intended to get 

                7 the person to take that last step and say, "Okay, I did 

                8 it."  The motivator is what interrogators tend to use, 

                9 from low end to high end.  Low ends might or would be 

               10 statements such as, At least admit you did what we know 

               11 you did.  Show you have character; show you're a decent 

               12 person; show that you seem to be a better person from my 

               13 perspective than I'm otherwise gonna think of you; or 

               14 people in general will recognize that you're better.  It 

               15 appeals to self-image.  

               16          Those kinds of interpersonal benefits, those 

               17 kinds of appeals can get someone who, in fact, knows they 

               18 committed a crime, used by a skilled interrogator, to 

               19 say, "Okay, I did it" because there's a rapport that may 

               20 have developed between them, not likely to produce a 

               21 false confession.  I've never seen that happen.  

               22          If that doesn't work, and the interrogator is 

               23 committed to try to get the person to make that last move 

               24 across that line, they may start talking about how the 

               25 system works and try to get the person to believe that 

               26 they will be better off if they confess than if they 

               27 deny, by really posing problems to them, saying things 

               28 such as Now's the time for you to show remorse; now's the 




                  
                  
                  
                                                                         21
                1 time for you to tell your side of the story, the idea 

                2 being to get the person to think about the future and 

                3 reason without the interrogator suggesting it, that you 

                4 will be better off in the future, to reach that 

                5 conclusion by giving them a very simple puzzle to solve.  

                6          This is a sort of gray area because somewhere in 

                7 here, if the interrogator keeps going up the scale, the 

                8 interrogator will cross a line and now begin to introduce 

                9 what I'll refer to as psychologically coercive 

               10 motivators.  The definition that I'm using for 

               11 psychologically coercive motivator is a motivator in 

               12 which the two alternatives of confession or denial are 

               13 linked up to consequences.  It's a consequence of -- 

               14 confessing is linked up to minimum punishment.  

               15          The consequence of denial is linked up to 

               16 maximum punishment in its most blatant form.  An 

               17 interrogator might say, If you continue to deny you did 

               18 this, I'll make sure you get the death penalty, and you 

               19 know that this is a capital state, and you will go to the 

               20 gas chamber.  That's as blatant as it can get.  The 

               21 denial -- I'm sorry, that was denial.  

               22          If you confess -- and very often what they will 

               23 do at this point is introduce a scenario for the crime 

               24 and often change the facts of the crime to make it a much 

               25 less serious crime.  They may suggest, This may look like 

               26 a premeditated murder, but in fact I think it's actually 

               27 self-defense, and then they'll lay out a scenario that 

               28 fits a self-defense description, endorsing the idea it's 




                  
                  
                  
                                                                         22
                1 self-defense, making it seem they're willing to accept 

                2 self-defense and may even say, If this is self-defense, 

                3 you can go home at the end of the day, if it's being 

                4 blatant.  

                5          Or that can be done, the connecting of 

                6 consequence for confession and denial, can be done 

                7 through a series of suggestions which are less than 

                8 blatant.  But the totality of the suggestions, when you 

                9 look at everything that is said by the interrogator over 

               10 the course of the interrogation that is corrected at 

               11 motivating the suspect, makes -- succeeds in 

               12 communicating the idea that if you confess, you'll get 

               13 minimum punishment whereas if you deny, you'll get 

               14 maximum punishment.  

               15          The typical pattern is these suggestions are 

               16 given in the most subtle form in the beginning.  And then 

               17 over the course of the delivery of the motivator, because 

               18 the suspect is resisting, may get more blatant.  So one 

               19 can identify, over the course of an interrogation if one 

               20 has a recording of it, every statement made by the 

               21 interrogator that could be categorized as part of the 

               22 delivery of the motivator and see, step-by-step, the way 

               23 in which the motivator is being introduced, the way in 

               24 which the interrogator is trying to get the person to say 

               25 "I did it."  

               26          The problem is -- one of the many problems is if 

               27 the interrogator continues to go up the scale and starts 

               28 introducing psychologically coercive motivators, those 




                  
                  
                  
                                                                         23
                1 motivators can produce true confessions from people who 

                2 know they committed the crime.  But the same 

                3 psychologically motivator can induce false confessions 

                4 because the person believing their situation is hopeless 

                5 is offered the way out.  The way out is so powerfully 

                6 attractive because of what happens if you deny or what 

                7 happens if you confess, that it may turn out that an 

                8 innocent person, upset by the fact they're being 

                9 interrogated, pressured, offered a way out, may elect to 

               10 give a false confession.  Or a person who knows they're 

               11 guilty may decide to take the deal and give a coerced but 

               12 nevertheless reliable confession.  

               13          So the motivator doesn't tell you, whether at 

               14 the confession or the preadmission phase, doesn't tell 

               15 you whether the confession is true or false, only tells 

               16 you about how it was elicited.  And that's what I think 

               17 we're here to talk about today.

               18          THE COURT:  All right.  Thank you.  Next 

               19 question.

               20          BY MR. CRAVENS:  Yes.  At this time, I would 

               21 like to offer this witness as an expert witness in the 

               22 areas of interrogation and false confessions.

               23          MR. HOOD:  Objection.  Relevancy.  There's been 

               24 no showing whatsoever that there's any false confession 

               25 here.  There's no evidence presented that it is false 

               26 confession, and testimony on whether this is a false 

               27 confession requires admissible evidence that there is 

               28 such.




                  
                  
                  
                                                                         24
                1          THE COURT:  The ultimate question I'm asked to 

                2 decide isn't whether or not the confession is true or 

                3 false.  While I was listening to the professor explain 

                4 what he just has, it occurred to me that even a 

                5 psychologically coercive interrogation, of course, can 

                6 produce true confessions because they can contain ample 

                7 amounts of witness specific facts at the post-admission 

                8 stage, that kind of stuff.  All of that is good and fine, 

                9 but that's not my job.  My job isn't to decide whether 

               10 it's true or false.  The jury may get to do that, if they 

               11 hear that and the rest of the evidence.  My job is to 

               12 determine whether it is voluntary or not.

               13          MR. CRAVENS:  I don't mean to interrupt -- 

               14          THE COURT:  I -- 

               15          MR. CRAVENS:  There's been no objection to 

               16 Exhibit 1.  I guess I should lay a foundation to it at 

               17 this point.  My next question was -- 

               18          THE COURT:  I'm dealing with an objection of 

               19 relevance as to this expert witness qualifying as an 

               20 expert.  I'll overrule the relevance objection because 

               21 ultimately, I think the sole issue he's here to help me 

               22 on is whether or not the particular confession in this 

               23 case is voluntary or not under the federal standards.

               24          MR. HOOD:  That was -- I should have gone 

               25 further into my objection.  He was offered as an expert 

               26 into false confessions.  That's not the question before 

               27 the Court.  The question was whether or not this was 

               28 voluntary.  There's been no showing he's an expert in 




                  
                  
                  
                                                                         25
                1 determining whether this statement was voluntary or not.  

                2          Secondly, Your Honor, beyond that objection, I 

                3 do have voir dire.  If the Court is going to overrule 

                4 that objection, I do have some voir dire.

                5          THE COURT:  Yes.  It may be that I'm not sure 

                6 that the professor would label his field of expertise as 

                7 false confessions or not, because that begs a question 

                8 that isn't the question we're here for.  

                9          I'll overrule the objection.  I haven't 

               10 qualified him yet.  You wish to voir dire?  

               11          MR. HOOD:  Yes, thank you.  

               12                 VOIR DIRE EXAMINATION BY MR. HOOD

               13      Q.  You were offered as an expert in the California 

               14 case of People versus Sunn?  

               15      A.  Yes.  Actually, I don't -- I was set to testify 

               16 in that case.  I don't know that there was any hearing 

               17 about -- I know there was no hearing about 

               18 qualifications.  All I know is I was set to testify and 

               19 was down in San Diego.  

               20      Q.  The Court stated your expert testimony was 

               21 unnecessary.  

               22      A.  That seems to be what the judge thought.

               23      Q.  Okay.  So you did not qualify in that case to 

               24 testify; is that correct?

               25      A.  There was no finding that I was not qualified.  

               26 The judge decided it wasn't relevant, apparently.

               27      Q.  Then didn't the Court find there was no evidence 

               28 presented that the police engaged in any tactics wearing 




                  
                  
                  
                                                                         26
                1 down the defendant, Mr. Sunn?  

                2      A.  I don't know.  I never entered the courtroom, 

                3 and there was never any hearing, and my testimony was 

                4 never proffered.

                5      Q.  U.S. versus Barchee.  That was, I think, an 

                6 Oregon case.  Was that an Oregon case or a Florida case?

                7      A.  It's an Oregon case, I think.

                8      Q.  What happened in that case?

                9      A.  I don't know.  I was contacted by an attorney 

               10 defending Ms. Barchee, and I don't think I made a report.  

               11 I don't believe -- I know I did not appear at any 

               12 hearing, so I have no idea what if anything the attorney 

               13 did.

               14      Q.  In the Barchee case, wasn't your testimony moved 

               15 to be excluded because it was unscientific, unreliable, 

               16 confusing to the jury, and failed to meet the standards 

               17 of admissibility under the Rules of Evidence?

               18      A.  I have no idea what the prosecutor argued or 

               19 suggested in that case.  I do know there was never any 

               20 hearing.  I never testified in that case.  So whatever 

               21 moving papers the prosecutor filed are outside my 

               22 knowledge, never having seen them.

               23      Q.  Okay.  So when you say you have never been not 

               24 qualified, you are admitting, in fact, there are cases 

               25 that you were supposed to testify that you were not 

               26 permitted to testify?

               27      A.  I said no one has ever found that I was not 

               28 qualified.




                  
                  
                  
                                                                         27
                1      Q.  Okay.  Listen to my question.  My question is:  

                2 Were there cases you were supposed to testify in that you 

                3 were not permitted to testify?

                4          THE COURT:  Mr. Hood, let me interrupt.  I don't 

                5 know that that's helpful to me.  We have no idea of the 

                6 facts of the other cases.  I just don't know the fact 

                7 that he didn't testify, for whatever reason, is going to 

                8 be helpful to me.  

                9          MR. HOOD:  One more case, Your Honor.

               10          THE COURT:  Sure.  Take your time.  

               11          MR. HOOD:  There's a bit too much information on 

               12 this expert.  I've got to go through it rather quickly.  

               13          THE COURT:  Take a minute if you need it.  

               14          BY MR. HOOD:  Q.  Now, in Nathan Brinkley, 

               15 Florida case, are you familiar with that case?  

               16      A.  Brinkley?  Sure.

               17      Q.  And you testified in that case?

               18      A.  I testified at the suppression hearing, and then 

               19 I testified at trial.

               20      Q.  Now, you indicated other -- 

               21          MR. HOOD:  I'll save everything.  I'll move on.  

               22 No further questions.

               23          THE COURT:  Is it submitted then?  

               24          MR. HOOD:  Yes.

               25          THE COURT:  All right.

               26          MR. HOOD:  Just so I can have some 

               27 clarification, Your Honor, what is the Court considering 

               28 him as an expert in?  




                  
                  
                  
                                                                         28
                1          THE COURT:  I thought I was going to phrase it 

                2 in terms of interviews and interrogations.

                3          MR. HOOD:  So is the Court indicating that any 

                4 witness who qualifies as an expert in interviews and 

                5 interrogations would be relevant to this, such that I can 

                6 bring in a police officer?  I know that is generally not 

                7 appropriate.  It's not relevant what goes on in other 

                8 interrogations.

                9          THE COURT:  Again, I think you all are ahead of 

               10 me on this in that I haven't seen this transcript.  I'm 

               11 not entirely sure what may be relevant.  It may be I 

               12 won't find the expert's opinion helpful.  It may be he'll 

               13 be spot on, and I'll be so thankful that he was here.  

               14          What I was told, I think, was this expert will 

               15 be able to assist me in spotting otherwise subtle 

               16 coercive measures that might not be apparent to me had I 

               17 not had the benefit of this expert.  He seems to have 

               18 some qualifications that might bear on that.  Whether I 

               19 give much credit to his testimony is something I won't do 

               20 until I've heard all of it, and counsel have the 

               21 opportunity to present additional evidence.

               22          MR. HOOD:  I'll submit it on the Court's basis 

               23 of his expertise for this motion only, Your Honor.

               24          THE COURT:  So noted.  Thank you.

               25          BY MR. CRAVENS:  Q.  Doctor, have you examined 

               26 the transcript of a conversation between an investigator 

               27 named Brandon Greg and the defendant, Amy Garvin?  

               28      A.  Yes.




                  
                  
                  
                                                                         29
                1      Q.  And Doctor, have you identified any of these 

                2 motivators that you talked about earlier in determining 

                3 how that -- how that confession went?  Was there any 

                4 motivators in that particular confession?

                5      A.  Yes.  What I did was analyze the transcript of 

                6 the interrogation and isolate all the statements made by 

                7 the interrogator that I would categorize as contributing 

                8 to delivering the motivator starting from the very first 

                9 statement, which occurs on Page 3, running through to the 

               10 conclusion of the interrogation.  

               11          As I indicated, these motivational -- this 

               12 motivational message is often delivered in a series of 

               13 statements.  In an interrogation, I've analyzed it and 

               14 run through as many as 40, 50 statements.  It's a theme 

               15 developed over the course of the interrogation.  And by 

               16 isolating each statement that contributes to the 

               17 development of that theme, each particular statement can 

               18 be looked at.  Someone can agree with my categorization 

               19 as this having a motivator or not.  One can look at the 

               20 series of statements that are, in my opinion, the 

               21 implementation of the motivational tactic.

               22      Q.  Did you prepare a -- did you prepare a report or 

               23 a -- let's call it a report of those things that you 

               24 thought were motivators?

               25      A.  I prepared 12 pages of excerpts from the 

               26 interrogation in sequence, marking the page number from 

               27 which each excerpt comes, and putting in bold the 

               28 particular statements within the statement made by the 




                  
                  
                  
                                                                         30
                1 interrogator that I categorize as making a contribution 

                2 to the psychologically coercive motivator which, in my 

                3 opinion, was in play in this interrogation.

                4      Q.  Okay.  And in your analysis, how many times -- 

                5 how many times in your opinion did the interrogator give 

                6 one of these motivators?

                7      A.  The interrogator first lays foundation for it.  

                8 And then as it develops, it makes particular statements 

                9 which in fact do the linking up.  But to understand the 

               10 entire strategy, one should start in the beginning and 

               11 watch it develop over time because it's a strategy that 

               12 interrogators are trained to use.  They understand what 

               13 they're doing.  When they're laying foundation, they know 

               14 they're laying foundation.  They lay the foundation, they 

               15 build on it, they develop it.  And sometimes if they meet 

               16 resistance, they may become very explicit in the linking 

               17 up.  

               18          It's not just the last linking-up statements 

               19 that are significant.  It's the entire process 

               20 culminating in either an explicit linking up or in a 

               21 series of statements which do the work of communicating 

               22 to the suspect that if you cooperate, if you confess, you 

               23 will receive leniency.  Whereas if you continue to deny, 

               24 you will receive the harshest possible treatment, setting 

               25 it up so that there's a benefit for confessing and a 

               26 punishment for denying.

               27      Q.  And did you see these either benefits or 

               28 punishments as noted in the transcript of the interview 




                  
                  
                  
                                                                         31
                1 between Brandon Greg and Amy Garvin?

                2      A.  Yes.  I saw the interrogator using a coherent 

                3 strategy of introducing and delivering threats and offers 

                4 of leniency starting, as I said, on Page 3 and 

                5 culminating on Page 36.

                6      Q.  Okay.  

                7      A.  Oh, 37, actually.

                8      Q.  Excuse me, Doctor.  Let's start with Page 3.  

                9 Page 3.  This is on the Page 1 of the Court's Exhibit 

               10 Number 2.  

               11      A.  Correct.

               12      Q.  Could you explain -- when you bolded something 

               13 in this report, let's get that straight, what does that 

               14 mean?

               15      A.  That means that that is -- the particular things 

               16 that I bolded are the things to which I wish to draw 

               17 attention.

               18      Q.  Okay.  The first thing that I see bolded, it 

               19 starts with I sit down.  It says Greg.  Could you explain 

               20 what kind of motivator is there?

               21      A.  In that first passage, the interrogator is 

               22 beginning to lay foundation, open up the idea that at 

               23 Ross, they take an enlightened view of theft and that if 

               24 associates are making mistakes, if they can fix it, they 

               25 will.  He's also introducing the idea that there are 

               26 different ways that they can go.  Again, laying 

               27 foundation for things that will become a lot clearer as 

               28 he makes continued reference to the initiating ideas.  




                  
                  
                  
                                                                         32
                1      Q.  So in this first Page 3 example that you use, 

                2 are these motivators or just laying foundation?

                3      A.  This is introducing the terms and setting up the 

                4 categories that he will use.  It's part of delivering the 

                5 motivator, but it starts off with these kinds of 

                6 statements.

                7      Q.  Now, the next thing you have highlighted is 

                8 Pages 6 through 7.  You have something bolded starting at 

                9 the beginning.  Could you tell the Court if this is 

               10 foundation or motivator or some other thing?

               11      A.  He's again repeating the refrain that here at 

               12 Ross, we have a mediator, and we want to find out why 

               13 these things are happening, so we can fix them.  He has 

               14 not yet been very specific about how here at Ross, we fix 

               15 these things.  But up to this point, he's indicated there 

               16 are a number of different things that can happen.  He's 

               17 playing a mediator roll, that they're really interested 

               18 in finding out the cause of the problem and in fixing the 

               19 problem.  The definitions of these things will get 

               20 clearer as he continues to develop the theme.

               21      Q.  On the next page, Page 2 of this exhibit, you 

               22 have bolded -- it starts, You know she wasn't prepared 

               23 for it.  Explain what this is.  

               24      A.  He's talking about an employee who was caught 

               25 stealing.  She was afraid she would go to jail, so he 

               26 reports -- that's the first introduction of jail as a 

               27 possibility.  He's pointing out, and I quote, no, that's 

               28 not my job.  I'm not here to judge.  I'm not here to hire 




                  
                  
                  
                                                                         33
                1 or fire.  I don't even have that power.  

                2          He's indicating he's here to find out why.  But 

                3 the idea of jail as a possibility has been introduced by 

                4 the interrogator.  The idea of hiring or firing has been 

                5 mentioned by the interrogator.  And he's also introduced 

                6 the idea that there's a decisionmaker who will handle 

                7 these decisions based on what comes out of this session.  

                8      Q.  Now, further on down the page, Obviously I hear 

                9 this all the time.  What kind of statement is that?

               10      A.  Well, he goes on to say that we're not here to 

               11 get them in trouble for giving out the discounts, for 

               12 making small mistakes.  Again, he's introducing the idea 

               13 that this is an enlightened employer, if you will, an 

               14 employer who is not seeking to be punitive to employees, 

               15 an employer who wants to fix problems and isn't even 

               16 terribly upset by the fact that the employee is giving 

               17 out discounts improperly.  

               18      Q.  Now, on the scale of the motivators you have on 

               19 this chart, where does this go on the scale between low 

               20 and high, if you will?

               21      A.  He's still laying the foundation for the 

               22 delivery of an entire tactic, which will become clearer 

               23 as this develops.  There's no sense in trying to 

               24 categorize each and every statement, although some of the 

               25 statements towards the end could be categorized on that 

               26 scale on their own.  Right now I'm talking about the use 

               27 of the tactic throughout the entirety of the 

               28 interrogation.  As I suggested, these tactics continued 




                  
                  
                  
                                                                         34
                1 to be used in interrogation.

                2      Q.  Next page, Page 3.  You've got something bolded 

                3 that starts with I'm looking for -- 

                4      A.  He's making it clear what the standard is, what 

                5 he seeks to obtain, supposedly, from the suspect.  He 

                6 wants a statement, I made a mistake; I want to fix it.  

                7 So in other words, an admission of having done the 

                8 mistake which turns out to be theft later.  But he wants 

                9 an admission to having done the theft and also a plea for 

               10 leniency.

               11      Q.  Now, Doctor, I want to step back a second.  

               12 There was a question I forgot to ask.  Can you -- in 

               13 your -- when you're testifying, you sometimes say 

               14 admission, and you sometimes say confession.  Is there a 

               15 difference in the meaning that you attach to each of 

               16 those two words?

               17      A.  As I use the terms, an admission is a statement 

               18 that tends to show the person committed the crime.  A 

               19 confession is a detailed account of the person's carrying 

               20 out of the crime.

               21      Q.  So at this point, is he wanting an admission, 

               22 confession or what?  In your opinion, what is he trying 

               23 to get here?

               24      A.  At this point, he's making it clear one of the 

               25 things you have to do is admit you did the crime and also 

               26 plead for leniency, and somehow that will feed into the 

               27 Ross system which supposedly is to fix problems rather 

               28 than punish people.




                  
                  
                  
                                                                         35
                1      Q.  Okay.  On the next -- the bottom part, Page 10, 

                2 you have things bolded.  Explain what's going on here, in 

                3 your opinion.  

                4      A.  He's trying to -- he's introduced in this 

                5 passage the idea that there's another decisionmaker to 

                6 whom he's going to bring the result of this interrogation 

                7 and whether or not Ms. Garvin cooperates will have an 

                8 impact on the decision of the third party, the human 

                9 relations or his boss, I guess the loss prevention boss, 

               10 and the human relations department boss.  And they will 

               11 make the decision about which way to go, as it's been 

               12 undetermined up to this point.  And of course he's making 

               13 it clear it makes a difference whether Ms. Garvin 

               14 cooperates or if she wasn't cooperating.  Cooperating 

               15 means admitting to having committed the thefts.

               16      Q.  Are we still in the laying foundation here?

               17      A.  He's still laying foundation.

               18      Q.  Next page, Page 4.  And it talks -- this is Greg 

               19 talking.  It starts in the bold, But like I said.  What 

               20 is he doing here?  

               21      A.  He's beginning to introduce the idea that there 

               22 are two very different courses of action that will 

               23 eventually be revealed.  They can go different ways.  

               24 He's making it clear in the second bolded statements in 

               25 that passage that this is a chance for you to get a fresh 

               26 start.  So you can wipe out the prior transgression.  

               27 Again, he's emphasizing leniency but also introducing -- 

               28 he's also constantly making reference to the fact that 




                  
                  
                  
                                                                         36
                1 things don't have to go that way, and there is another 

                2 alternative, a punitive alternative.

                3      Q.  And the next thing you have noted is Pages 15 

                4 through 16 and Mr. Greg -- the first bold starts, Listen, 

                5 I know why it's happening, et cetera.  What's going on 

                6 here?

                7      A.  Standard interrogation technique to report to 

                8 the suspect that there's no question that you committed 

                9 this crime.  I'm only here to find out why you did it, 

               10 and thereby try to -- to focus on getting an explanation 

               11 for why the crime was committed.  And of course in giving 

               12 that explanation, the person is also admitting to having 

               13 done the crime.  So it's just a little tactic that one 

               14 sees in interrogation all the time. 

               15      Q.  Is this a motivator or just a tactic?

               16      A.  Well, it's a tactic to say we're past the point 

               17 at which there's any question that you committed the 

               18 crime.  You have to understand that interlaced in all of 

               19 this will be constant, as I indicated in the diagram, 

               20 introduction of evidence ploys.  We have this evidence.  

               21 We have a videotape of your stealing things.  We have 

               22 computer records of your I.D. being on bogus returns and 

               23 things like that.  

               24          All of those evidence ploys are being introduced 

               25 as this theme is being developed.  That's why I pulled 

               26 this out.  Because otherwise, unless one is well-versed 

               27 in breaking down an interrogation, it can look like a 

               28 bowl of spaghetti.  




                  
                  
                  
                                                                         37
                1      Q.  I.E., it can be very confusing; is that what 

                2 you're saying?

                3      A.  I hope I got it across the other way, but yes, 

                4 you're right.

                5      Q.  On Page 5, continuing with this, the 

                6 interrogator starts, Look -- let me back up.  

                7          Ms. Garvin says, Show me the tape.  Mr. Greg 

                8 says, Listen, tapes aren't for showing right now.  

                9          What's going on here in this dialogue?  

               10      A.  You'll notice he also says, Before we can go in 

               11 that direction, that's when you go to court.  Okay?  Now, 

               12 she has just asked, and that's quoted, Show me the tape.  

               13 This is a reference to the tape of her allegedly having 

               14 stolen some goods from the store.  She wants to see the 

               15 evidence that he has referred to.  That's the evidence 

               16 ploy.  

               17          He is now telling her that he doesn't want to 

               18 show it to her unless they're going in the direction of 

               19 going to court, which of course means bringing in the 

               20 police and so on.  What he's playing on is, again, this 

               21 constant reference to one alternative which is very 

               22 punitive, and the other alternative which is very 

               23 lenient.  

               24      Q.  Okay.  

               25      A.  He says at the conclusion, because we wants to 

               26 settle it, bottom line, okay.  

               27      Q.  Now -- and is this line, is this a motivator, a 

               28 tactic, or is he still laying foundation?




                  
                  
                  
                                                                         38
                1      A.  Part of the delivery of the motivator.  It is 

                2 constant reference back to the two alternatives, 

                3 constantly making it clear to her that one alternative 

                4 can lead to court.  Later in these passages, he'll 

                5 mention police again explicitly, or he will even develop 

                6 explicitly the idea that there are other positions in the 

                7 store that you could be given if you simply cooperate.  

                8 All of these things are to come.

                9      Q.  Now, moving down still on the same page, Pages 

               10 19 through 20, what is going on here?  

               11      A.  He's saying that a decision will be made, and 

               12 he's pointing out that he cannot give his bosses the 

               13 input that she's not being cooperative, that they're not 

               14 gonna be happy with that input.  In other words, that's 

               15 an unsatisfactory result for her, and that unsatisfactory 

               16 result is going to be linked up with the police being 

               17 called, whereas if she cooperates, if she confesses, she 

               18 will then qualify for a different job in the store.

               19      Q.  So I want to back up just a little bit, because 

               20 I'm a little hazy on when you talk about the motivators 

               21 versus linking up the motivators.  Could you explain how 

               22 that works or what happens?

               23      A.  He's introducing -- all of these statements are 

               24 about introducing a high/low: High punishment if you 

               25 deny, low punishment if you confess.  He can do that 

               26 first through these suggestions, which are setting up 

               27 categories and later in a more explicit way.  All of 

               28 these statements are part of introducing this theme, 




                  
                  
                  
                                                                         39
                1 developing this theme, acquainting Ms. Garvin with the 

                2 alternatives before her, acquainting her with how her 

                3 conduct during the session will be linked up to the harsh 

                4 outcome or the lenient outcome.  And the conduct is, Does 

                5 she confess?  Yes or no?  

                6      Q.  On Page 22, and then it turns to Page 26 on 

                7 Exhibit 2, Brandon says, We're trying to start it now.  

                8 What's going on here?

                9      A.  He's saying I'm not trying to get you in 

               10 trouble.  I'm trying to, you know, get you -- I'm trying 

               11 to figure out why this happened.  So he's making clear 

               12 the trouble for her is one alternative.  His job is not 

               13 to get her in trouble, but of course he's reminding her 

               14 that trouble is a possibility.  What he's trying to do, 

               15 and you have to understand this is in the context of her 

               16 resisting, and her constantly reporting she didn't steal 

               17 anything, she didn't do any phoney returns.  So she's 

               18 resisting.  And as she's resisting, again, something I 

               19 had not tracked but it's going on in the same way the 

               20 presentation of the evidence ploy is going on, as she's 

               21 resisting, his conduct is changing.  I'm focusing on what 

               22 he says in pulling out these excerpts.

               23      Q.  On Page 23, Brandon Greg, I'm gonna go use the 

               24 phone.  What's going on here?

               25      A.  Well, he continues on in that very statement, 

               26 and he says that a lot of things can happen with this, 

               27 okay?  You can be verbally warned, you can be written up, 

               28 you can be terminated, and even an outside agency can be 




                  
                  
                  
                                                                         40
                1 called.  So now he has clearly defined the different ways 

                2 that we can go.

                3      Q.  And -- and is this in the introduction of a 

                4 motivator at this point?

                5      A.  It's continuing to develop the motivational 

                6 theme.

                7      Q.  Page 23, continuing.  He says, I mean, I'm not 

                8 gonna BS you here.  There are things that are gonna 

                9 happen, okay?  Then he goes on.  But I want you to be 

               10 aware of these things.  

               11          What's happening here.

               12      A.  After that, he says you know, this is the 

               13 direction you can take, and it all depends on your 

               14 cooperation and how you want to fix it.  Now he's making 

               15 an explicit connection between if you cooperate, which 

               16 means confess, admit you did it, then you will determine 

               17 the direction that this takes.  And the direction is 

               18 either call the police or, at the other end of the 

               19 continuum, you can be verbally warned.  And he will 

               20 identify other less punitive alternatives as we continue.  

               21 But the range is verbal warning or police called, depends 

               22 on whether you confess or not.

               23      Q.  Is this what you -- what you were referring to 

               24 earlier, what you referred to as linking up the 

               25 motivator?

               26      A.  He's now beginning to explicitly connect 

               27 confession and minimum punishment, denial and maximum 

               28 punishment.  She's been resisting now for 23 pages.  So 




                  
                  
                  
                                                                         41
                1 what one sees, and of course the interrogation would be 

                2 over, my analysis would be, over at the moment she 

                3 confesses.  So you got 23 pages of her resistance.  Over 

                4 the course of her resistance, he's getting more and more 

                5 obvious, more and more heavy-handed.

                6      Q.  Now, Pages 26 through 27, he starts, and I want 

                7 you to think about this because obviously, et cetera.  

                8          What's going on there.

                9      A.  I'm looking at Page 24, next at the top of Page 

               10 7.

               11      Q.  Oh, okay.  That's right.  I'm sorry.  I'm sorry.  

               12 Let me -- let me skip back up there because I did miss 

               13 something.  

               14          It says Greg, you're not in trouble.  It's just, 

               15 et cetera.  

               16          What's he doing there?  

               17      A.  He's telling her there's still an option for her 

               18 to fix this.  If you go in that direction we don't want 

               19 to take it -- he's -- this is again in the context of her 

               20 resisting.  He's telling her, you're not in trouble.  But 

               21 if you don't cooperate, we could go in the direction of 

               22 calling the police, which he's already now defined.  The 

               23 outside agency is what he's talking about when he says, 

               24 you know, we can call in -- the outside agency that he's 

               25 talking about is indeed the police.

               26      Q.  Now, on Page 27 at the beginning at the top of 

               27 Page 7 at the top of Exhibit 2 -- strike that.  

               28          Pages 26 through 27, you pick out, and it starts 




                  
                  
                  
                                                                         42
                1 with, and I want you to think about this because 

                2 obviously these mistakes, et cetera.  

                3          What's going on here?  

                4      A.  Well, he's introducing -- at he beginning, he 

                5 wants her to think about something.  And then at the end, 

                6 he gives her what he wants her to think about.  And he 

                7 repeats, just think about it, okay?  Because like I said, 

                8 things can come from this.  And I really don't want to go 

                9 in that direction.  And I know why.  And I know -- and I 

               10 know how.  You know what?  I know how my boss is, and I 

               11 know what he's gonna say.  He's gonna say to call 

               12 somebody else.  Let them deal with it.  All right?  And 

               13 you're pretty cool up front.  We don't usually talk to 

               14 associates too much.  They come in, they come and go, but 

               15 I don't want to -- you know, I don't want to have to go 

               16 in that direction.  

               17          He's telling her if she doesn't confess, he's 

               18 going to tell her boss she hasn't confessed.  And her 

               19 boss, who's the meanest guy in town is the idea of this, 

               20 is gonna, say, throw her to the police as opposed to give 

               21 her the lenient treatment we know as good Ross employees, 

               22 is available to associates who just confess.  That's what 

               23 he's been developing and will continue to develop.

               24      Q.  Now, on the top of the next page, Page 8, it 

               25 talks about -- he leaves to call his boss.  He says well, 

               26 I talked to the boss.  

               27          What happened here.

               28      A.  He's reporting back what he told the boss he's 




                  
                  
                  
                                                                         43
                1 disappointed, and the consequence of the boss' being 

                2 disappointed is the likelihood that the police will be 

                3 called in, as opposed to her getting the lenient 

                4 treatment of maybe the verbal warning which has been 

                5 mentioned.  He'll mention other lenient alternatives to 

                6 calling in the police before this is over.  He even goes 

                7 on to say -- to list the things that she's afraid of.  

                8          You're scared of -- that's all you're scared of, 

                9 not being arrested.  You're not scared of getting written 

               10 up, you're just scared of losing your job.  Is that 

               11 pretty much it?  That's what she's been saying, she's 

               12 scared of losing her job.  He brings it in.  And he's 

               13 mentioned it again.  And now he uses the word arrest.  

               14          So we've gone from calling some vague, outside 

               15 agency, to going to court, and now he's talking directly 

               16 about arrest as a possibility.  

               17          And he continues on in that passage at the 

               18 bottom.  You want me to reassure you that the direction, 

               19 you know, like I told you before, that we take on this 

               20 depends on you.  And right now, from the store level, 

               21 from where we're sitting right now, we can decide to call 

               22 someone, or let's put her back on the floor, okay?  Like 

               23 I said at the very beginning, it all comes down to your 

               24 cooperation.  

               25          There is the explicit link between the 

               26 categories that he's been setting up, and it depends on 

               27 your cooperation which, as set up, means confessing.  We 

               28 can call somebody in, and the somebody is the police.  




                  
                  
                  
                                                                         44
                1 And if we call the police in, you're gonna be arrested, 

                2 and you're gonna go to court, or we can put her back on 

                3 the floor.  In other words, we can forget about this and 

                4 go on with your employment if you just confess, is what 

                5 he is promising her.

                6      Q.  Now, on Page 29 through 30, Page 9 of Exhibit 2, 

                7 Brandon says but with Ross, this is what's bolded out.  

                8          What's going on here.

                9      A.  With Ross, we sit down with an associate, and we 

               10 talk, okay?  Once we get past the point of yes I made the 

               11 mistake, I'm sorry, the things he asked for in the 

               12 beginning, you know, what we can do, we have the power to 

               13 fix it now.  And fixing it, as he's been using it, means 

               14 continue your employment.  He will define that there are 

               15 other positions in the store that you could be given 

               16 where you're not handling money.  That's what he means by 

               17 fix it.  You can keep your job and not get arrested.

               18      Q.  So this is one of the -- in your opinion, would 

               19 this be, say, a leniency motivator?

               20      A.  He's promising her, as he did on Page 28, that 

               21 if you cooperate, we won't call the police.  We'll put 

               22 you back on the floor.  He's reemphasizing on Pages 29 

               23 and 30 that what you have to do is confess, say you're 

               24 sorry, and then we'll fix the problem.  

               25          And then he goes on to say, in the second bolded 

               26 part of that statement passage, you know what we can do, 

               27 we can put them in the fitting room.  We can put them in 

               28 departments that we're putting the stock in, that way the 




                  
                  
                  
                                                                         45
                1 temptation is not there anymore.  He's illustrating what 

                2 the fix can be if she just confesses.  

                3          And then he goes on to say that she's a good 

                4 employee, that she's a hard worker, that -- and he 

                5 concludes with, after listing all of her sterling 

                6 attributes, he says we want those kind of people, okay?  

                7 And the price for staying in the fold is simply 

                8 confessing to having done the thefts, is the message he's 

                9 delivering.

               10      Q.  Now on the top of Page 10, he's saying I also 

               11 know what happened here.  

               12          What's happening there?  

               13          THE COURT:  I'm sorry, where are you?  

               14          MR. CRAVENS:  Top of Page 10 of Exhibit 2, Your 

               15 Honor.

               16          THE COURT:  There I am.  Okay.  

               17          THE WITNESS:  He's again reemphasizing the 

               18 common tactic of saying the fact of what you did is no 

               19 longer at issue.  The evidence of what you did is 

               20 overwhelming.  And bear in mind, this is all in the 

               21 context text of having told her they have observations, 

               22 videotapes, computer records, they have all sorts of 

               23 stuff that shows that she supposedly committed these 

               24 crimes.  Therefore, that's not a question, about whether 

               25 she did it or not.  

               26          All he wants to do is sit down here and try to 

               27 fix it with her, and he's defined what "fix it" means.  

               28 He's defined what she has to do to get the fix.  




                  
                  
                  
                                                                         46
                1          And then he continues, in the second bolded 

                2 portion of that statement, and says in situations where 

                3 associates don't want to work with us, then we just give 

                4 them to someone else and say you deal with it, and that's 

                5 what my boss wants to do, and obviously we don't want to 

                6 do that.  I don't really want to do that because that 

                7 means a whole bunch of other junk for me.  

                8          He's again reemphasizing if you don't confess, 

                9 we'll turn you over to the police, and we'll see about 

               10 going to court.  But he doesn't want to do that, although 

               11 the boss wants to do it.  The reason the boss is unhappy, 

               12 he's told her before, is that you haven't confessed.  It 

               13 could not be clearer.  

               14          He goes on in the final bolded portion of that 

               15 statement and says, you know, you were doing it, and it's 

               16 a simple mistake.  If you add it all up, it can be 

               17 corrected easily.  Like I said, there are positions in 

               18 the store where you can still work as hard as you do.  

               19 And then she says, Then why don't you put me there?  And 

               20 he says, Because we need to clear this up first.  

               21          The price of getting leniency is confession.  

               22      Q.  On Page 11, the bold that starts that's my boss, 

               23 the H.R. manager -- 

               24      A.  He says these people make the decision, but what 

               25 they make the decision on is what you tell me here today, 

               26 my opinion and obviously this stuff.  They're going to 

               27 make the decision about whether to call the police in or 

               28 give you another job in the store.  And they'll make that 




                  
                  
                  
                                                                         47
                1 decision on what you do here today, confess or don't 

                2 confess.

                3      Q.  In all of this, did you see -- in your opinion, 

                4 was there any urgency in wanting her to confess?  Do you 

                5 see any of that?

                6      A.  The whole purpose of doing an interrogation is 

                7 to get an admission and confession.  You don't start 

                8 interrogating someone, accuse them for doing something 

                9 wrong for interviewing them.  Interrogation is not an 

               10 interview.  Interview is about getting information.  You 

               11 ask questions and note the answers.  Interrogation is 

               12 about getting someone to admit they committed a crime and 

               13 confess to it and nothing less than that.  

               14      Q.  Let's see.  On Page 12, you've got some things 

               15 bolded where it says there's a certain, and it's 

               16 inaudible, who work here, and then there's the same 

               17 thing.  

               18          What's going on here?  

               19      A.  Look at what he's saying.  There's a certain, 

               20 and I'll guess that what's inaudible is kind of associate 

               21 who works here today that do the same thing with me, and 

               22 they're still working here, okay?  And then she says, 

               23 There are other associates?  And he says, They aren't 

               24 here.  Those associates are in jail.  I'm not gonna joke 

               25 around with you.  It all depends on the associate, how 

               26 well they're working.  And now it's inaudible how he 

               27 finishes that.  

               28          He goes on to say that I know you tried to work 




                  
                  
                  
                                                                         48
                1 with me, which might suggest what's missing, but you just 

                2 haven't crossed that boundary because you're scared, 

                3 because you're nervous.  You don't want to lose your job.  

                4 You -- you don't want to go to jail.  Now he's setting 

                5 out the two negative alternatives.  You can work with me.  

                6 I can sit here right now and work with you on planning 

                7 something out.  I promise you I will, okay?  But we 

                8 really need to get past that part of why, okay?  

                9          He's promising, explicitly promising her they'll 

               10 sit there and work something out.  He's made clear the 

               11 working out involves another job in the store, and he's 

               12 telling her in no uncertain terms that it all depends on 

               13 whether you confess or not.  If you don't confess, you'll 

               14 be like the other associates, and you'll be in jail.  

               15      Q.  Now, the interrogation technique that you saw 

               16 here, is -- is this one you've seen in other cases?

               17      A.  This is classic psychological coercion.  I've 

               18 seen this technique used in other private security cases 

               19 before.  He's hooking up the option of leniency from the 

               20 store versus throwing you to the dogs, the police, the 

               21 jail, and the price is simply confessing.

               22      Q.  Now, when you say psychological coercion, could 

               23 you give us a definition?

               24      A.  Definition is seeking to motivate someone 

               25 through threats of harm or offers of benefit or leniency.  

               26 In my opinion, he's threatening her with harm and 

               27 offering her leniency.  That's the theme that is 

               28 developed over this series of statements, culminating in 




                  
                  
                  
                                                                         49
                1 explicit linkage between confession and leniency, and 

                2 punishment and denial and maximum punishment.

                3      Q.  And Doctor, just for the record, do these kind 

                4 of interrogations elicit true confessions?

                5      A.  They can.

                6      Q.  And can they elicit false confessions?

                7      A.  They can.

                8      Q.  And do you have any experience or know an 

                9 approximate percentage of confessions that would be false 

               10 confessions by using this particular method of 

               11 interrogation?

               12      A.  No one in the world knows.  No one knows how 

               13 many interrogations result in confession of any sort.  No 

               14 one knows how many interrogations result in true 

               15 confessions, how many interrogations result in false 

               16 confessions because no statistics are kept that are 

               17 adequate to allow one to say that here is the -- here is 

               18 the probability that an interrogation will result in true 

               19 or false confession.

               20      Q.  What kinds of people come to ask for your 

               21 services?

               22      A.  People -- 

               23          MR. HOOD:  Objection.  Relevance.

               24          THE COURT:  Sustained.  

               25          MR. CRAVENS:  No further questions at this time.

               26          THE COURT:  Cross examination?  

               27          MR. HOOD:  I will not finish.

               28          THE COURT:  I don't think we're going to finish 




                  
                  
                  
                                                                         50
                1 today.  I sure hope -- 

                2          MR. HOOD:  Well, let me go into one area if I 

                3 could.

                4          THE COURT:  All right.

                5               CROSS EXAMINATION BY MR. HOOD

                6      Q.  You prepared this report?

                7      A.  Correct.  Correct.

                8      Q.  Did you prepare any other reports?

                9      A.  No.

               10      Q.  Why did you interview the defendant in this 

               11 case?

               12      A.  To find out what happened off the tape.

               13          MR. CRAVENS:  Your Honor, at this time -- 

               14          MR. HOOD:  Excuse me.  

               15          BY MR. HOOD:  Q.  And that helped you in your 

               16 opinions about the motivator -- motivating or lack of 

               17 motivating things?  

               18      A.  Everything I've said today -- 

               19          MR. CRAVENS:  Objection, Your Honor.  We would 

               20 object on the attorney-client privilege issue.  There was 

               21 a report that was handed to Mr. Hood that was handed to 

               22 him in mistake -- by a mistake, and I guess this is 

               23 probably the time to deal with that.

               24          THE COURT:  The objection or the inadvertent 

               25 discovery?  

               26          MR. CRAVENS:  The inadvertent discovery, Your 

               27 Honor.

               28          THE COURT:  I'm not sure it is time to deal with 




                  
                  
                  
                                                                         51
                1 that.  I'd like to deal with the objection and the 

                2 examination of the witness.

                3          MR. CRAVENS:  The objection is based on 

                4 attorney-client privilege.  May we approach?  If you 

                5 would like us to approach, we can do that.

                6          THE COURT:  Why would you approach?  

                7          MR. CRAVENS:  Your Honor, there was some 

                8 inadvertent -- there was inadvertent discovery.  I don't 

                9 believe the prosecutor should be going into this area 

               10 because of attorney-client privilege.  I apologize for 

               11 the speaking objection.

               12          THE COURT:  I asked you, and you're answering.  

               13 It's mostly in front of jurors that I have a hard time 

               14 with that.  

               15          The objection to the question is overruled.  I 

               16 think Doctor Ofshe had partially answered the question.  

               17 Perhaps we should re-ask it and get a full answer.

               18          BY MR. HOOD:  Q.  Okay.  Let's start from the 

               19 beginning.  

               20          You interviewed the defendant in this case?  

               21      A.  Correct.

               22      Q.  And it was in relation to her interview with 

               23 Mr. Greg?

               24      A.  Correct.

               25      Q.  And you asked her about the circumstances 

               26 surrounding that interview?

               27      A.  I asked her about what happened off the tape.  

               28 That was not the parts -- that was the parts that were 




                  
                  
                  
                                                                         52
                1 not recorded.

                2      Q.  Did you ask her about what happened off the tape 

                3 about the interview?

                4      A.  Correct.

                5      Q.  Your interview was principally, if not 

                6 completely, related to her interview with Mr. Greg?

                7      A.  It was related to that part of the interview of 

                8 Mr. Greg that was not recorded.

                9      Q.  Okay.  And you interviewed her because you felt 

               10 it was important?

               11      A.  I interviewed her because there were parts of 

               12 the interrogation that were not recorded, and I wanted to 

               13 find out what happened.

               14      Q.  Okay.  And you wanted to find out what happened?

               15          MR. CRAVENS:  Objection, Your Honor, 

               16 attorney-client privilege.  Just a continuing objection 

               17 to this line of question.

               18          MR. HOOD:  I still have not asked for the 

               19 content.  

               20          THE COURT:  I'm not sure the fact of the 

               21 interview is privileged, unless you have some theory as 

               22 to whether or not he interviewed her is privilege.

               23          MR. CRAVENS:  I know we'll get there eventually.

               24          THE COURT:  I'm on notice it may come.  Thank 

               25 you.  

               26          Mr. Hood, you may continue.

               27          BY MR. HOOD:  Q.  And you wanted to find out 

               28 what happened during that interview?  




                  
                  
                  
                                                                         53
                1      A.  I wanted to get more information about the 

                2 totality of the interrogation, correct.

                3      Q.  Because the totality of the interview was 

                4 important to you?

                5      A.  Not necessarily for different purposes.  For the 

                6 purpose of my testimony today, I relied entirely on what 

                7 was in the recorded part of the interrogation.  And 

                8 you'll notice that all of my analysis is of what Mr. Greg 

                9 said that was recorded.  And that analysis leads me to 

               10 the conclusion that I stated.

               11      Q.  But your analysis about what Mr. Greg said is 

               12 only relevant insofar as it affects her; correct?

               13          MR. CRAVENS:  Objection.  Calls for a legal 

               14 conclusion.

               15          THE COURT:  Sustained.  

               16          BY MR. HOOD:  Q.  Your analysis of what he said 

               17 to her, your saying this is a motivating factor or this 

               18 is coercion, would only be relevant if, in fact, she felt 

               19 coerced?

               20          MR. CRAVENS:  Same objection, Your Honor.

               21          THE COURT:  Same ruling.  

               22          BY MR. HOOD:  Q.  In interviewing her, you 

               23 wanted to determine if, in fact, her subsequent 

               24 confession was voluntary or involuntary?  

               25      A.  That's your theory.  I know why I interviewed 

               26 her, and that was not the reason.

               27      Q.  Your reason was so you understood the full 

               28 interview?  




                  
                  
                  
                                                                         54
                1      A.  My reason was that I wanted to find out what if 

                2 anything Mr. Greg said beyond what was in the recorded 

                3 part of the interrogation.

                4      Q.  During -- okay.  

                5          But you're still interviewing her about that 

                6 interview; correct?  

                7      A.  I'm interviewing her about the events that 

                8 happened during the portion of the interview that was not 

                9 recorded, prior to her making the written so-called 

               10 confession statement.  So there is a gap in the record.  

               11 I was interviewing her about the events in that gap.  The 

               12 record -- what I testified about today was the record 

               13 that is available through the tape recording.

               14      Q.  Why was it important for you to interview her 

               15 regarding that?

               16      A.  Well, because things might come up about his 

               17 having said things that were even beyond, perhaps, what 

               18 he had said in the recorded part.  I don't know what 

               19 happened.  There may be other purposes that my testimony 

               20 might be used for or useful about that I was seeking to 

               21 gain information on.  For the purpose of this hearing, I 

               22 was asked to analyze the recorded part of the 

               23 interrogation and testify about that, which is what I 

               24 did.

               25      Q.  And nothing she said in your interview in any 

               26 way affected your opinion; is that what you're telling 

               27 us?

               28      A.  That's correct.




                  
                  
                  
                                                                         55
                1      Q.  You didn't consider what she told you about that 

                2 interview at all?

                3      A.  I didn't review it.  I did the interview, 

                4 reviewed it at some point.  But in preparing my testimony 

                5 for today, it's based on what's there, although -- well, 

                6 I'll hold it at that.

                7      Q.  Go ahead and finish.  

                8      A.  No thanks.

                9      Q.  So you interviewed her about Mr. Greg's 

               10 interview, and yet you -- 

               11          THE COURT:  Let's just go ahead and call it a 

               12 day.

               13          MR. CRAVENS:  Thanks, Your Honor.

               14          THE COURT:  And Doctor Ofshe is ordered to 

               15 return tomorrow morning at 9 o'clock, as are counsel and 

               16 the defendant.

               17          THE WITNESS:  Your Honor, I have a problem.

               18          THE COURT:  What's up?  

               19          THE WITNESS:  I teach at 8 o'clock in the 

               20 morning until 9:30, and then noon until 2.

               21          THE COURT:  I'm open to suggestions, one of 

               22 which is not being dark tomorrow.  

               23          MR. HOOD:  Your Honor, I don't have a 

               24 suggestion.

               25          THE COURT:  Let's go off the record and have 

               26 counsel approach.  We'll try to work this out so some 

               27 combination of students and this Court don't get hosed, 

               28 to use the legal term.  




                  
                  
                  
                                                                         56
                1          (Whereupon a discussion was held off the 

                2 record.)

                3          THE COURT:  All right.  After a brief discussion 

                4 at the bench, and I again appreciate the tolerance of the 

                5 staff and others involved, it appears that we have other 

                6 items in limine we can work on tomorrow morning while the 

                7 doctor is teaching his class.  And also, we can start 

                8 selecting a jury tomorrow afternoon if we're done.  

                9          I'll order that the doctor return Wednesday 

               10 morning at 9 o'clock to continue this.  He is, therefore, 

               11 excused for now, and I guess I'll see counsel tomorrow 

               12 morning at nine.  And we better have evidence and things 

               13 to do to keep us busy, guys.  

               14          All right.  See you tomorrow morning at nine.  

               15 As a matter of fact, let me see counsel in chambers now.  

               16          We're in recess.  

               17 
                  
               18 
                  
               19 
                  
               20 
                  
               21 
                  
               22 
                  
               23 
                  
               24 
                  
               25 
                  
               26 
                  
               27 
                  
               28 




                  
                  
                  
                                                                         57
                1 STATE OF CALIFORNIA      )
                                           )
                2 COUNTY OF SANTA CLARA    )
                       
                3      
                       
                4 

                5      

                6      I, Michelle Caldwell, CSR 9045, in and for the State 

                7 of California, County of Santa Clara, do hereby certify 

                8 that I was appointed by the Court to act as court 

                9 reporter in the above-entitled action; that I reported 

               10 the same into typewriting as appears by the foregoing 

               11 transcription; that said transcript is a full, true and 

               12 correct statement of the proceedings to the best of my 

               13 ability.

               14      

               15      

               16      Dated this 25th day of November, 2003.

               17      

               18      

               19      
                       
               20      ____________________________________
                       Michelle Caldwell
               21      Certified Shorthand Reporter No. 9045
                       
               22      
                       
               23      
                       
               24      
                       
               25      
                       
               26      
                       
               27      
                       
               28      



                  
                  
                  
                                                                         58
                1 SUPERIOR COURT OF THE STATE OF CALIFORNIA 

                2              IN AND FOR THE COUNTY OF SANTA CLARA
                                      SOUTH COUNTY FACILITY
                3      

                4      BEFORE THE HONORABLE EDWARD F. LEE

                5      
                       
                6      THE PEOPLE OF THE STATE      )
                       CALIFORNIA,                  )
                7                                   )
                                Plaintiff,          )
                8                                   )
                        vs.                         )Case No. FF301260
                9                                   )
                       AMY MARIE GARVIN,            )
               10                                   )
                                Defendant.          )
               11      _____________________________)
                       
               12 

               13              REPORTER'S TRANSCRIPT OF PROCEEDINGS

               14                        October 6, 2003

               15      

               16      

               17      

               18      APPEARANCES:

               19      For the Plaintiff:     MARK HOOD,
                                              DEPUTY DISTRICT ATTORNEY
               20      
                       
               21      
                       
               22      
                       For the Defendant:     LEONARD CRAVENS,
               23                             KENNETH PINTO,
                                              ATTORNEYS AT LAW
               24                             
                                              
               25      
                       
               26      
                       
               27      
                       
               28      MICHELLE CALDWELL, CSR 9045, Official Reporter.
                       



                  
                  
                  
                                                                          1
                1 SAN MARTIN, CALIFORNIA                    OCTOBER 8, 2003
                           
                2 

                3           SUPERIOR COURT OF THE STATE OF CALIFORNIA 
                               IN AND FOR THE COUNTY OF SANTA CLARA
                4                     SOUTH COUNTY FACILITY
                       
                5 

                6      BEFORE THE HONORABLE EDWARD F. LEE

                7      
                       
                8      THE PEOPLE OF THE STATE      )
                       CALIFORNIA,                  )
                9                                   )
                                Plaintiff,          )
               10                                   )
                        vs.                         )Case No. FF301260
               11                                   )
                       AMY MARIE GARVIN,            )
               12                                   )
                                Defendant.          )
               13      _____________________________)
                       
               14 

               15              REPORTER'S TRANSCRIPT OF PROCEEDINGS

               16                        October 8, 2003

               17      

               18      

               19      

               20      APPEARANCES:

               21      For the Plaintiff:     MARK HOOD,
                                              DEPUTY DISTRICT ATTORNEY
               22      
                       
               23      
                       
               24      
                       For the Defendant:     LEONARD CRAVENS,
               25                             KENNETH PINTO,
                                              ATTORNEYS AT LAW
               26                             
                                              
               27      
                       
               28      
                       



                  
                  
                  
                                                                          2
                1      
                       
                2      MICHELLE CALDWELL, CSR 9045, Official Reporter
                       
                3 SAN MARTIN, CALIFORNIA                    OCTOBER 8, 2003
                           
                4 

                5          THE COURT:  We're back on the record in the 

                6 Garvin matter.  The defendant is present.  All three 

                7 attorneys are present.  We're outside of the presence of 

                8 the jury.  

                9          Professor Ofshe is on the stand.  We're 

               10 partially through cross-examination.  

               11          Mr. Hood?

               12          BY MR. HOOD:  Q.  Now, approximately how many 

               13 cases involving false confessions have you worked 

               14 yourself as an expert, either as reviewing or testifying 

               15 in the last three years?  

               16      A.  Last three years?  I've -- I don't keep track of 

               17 the number of cases I work on annually.  It would -- I 

               18 would be guessing if I told you.  The number is 

               19 significant, but it would be guessing.

               20      Q.  Why don't you estimate?

               21      A.  Whether you call it a guess or an estimate, I 

               22 don't have a basis for doing it.  It's a significant 

               23 number: Fifty?  A hundred?  A hundred and fifty?  Two 

               24 hundred?  Two hundred and fifty?  I couldn't tell you.

               25      Q.  Approximately how many cases do you review a 

               26 year?

               27      A.  Since I don't keep track of how many cases I 

               28 review a year, I can't answer that question.




                  
                  
                  
                                                                          3
                1      Q.  Is it between 50 and 150?

                2      A.  Could be between 50 and 250.  I don't know.

                3      Q.  How many cases have you testified to where you 

                4 have been called as a witness in the last three years?

                5      A.  I don't keep it by year.  I testified before 

                6 that I think the number is about 193 in toto on the 

                7 subject of interrogation, and that's over the ten, twelve 

                8 years I've been doing this, at least.  Maybe longer.

                9      Q.  Okay.  

               10      A.  Fifteen years probably.

               11      Q.  Of those 193 cases that you testified on, how 

               12 many of them involved civilian interrogators?

               13          MR. CRAVENS:  You know what?  Excuse me, Your 

               14 Honor.  Objection, relevance unless -- objection, 

               15 relevance.  

               16          THE COURT:  The objection is overruled.  

               17          THE WITNESS:  I can think of two in particular.

               18          BY MR. HOOD:  Q.  All right.  And those two, 

               19 what was the focus of your testimony?  

               20      A.  On the techniques that were used to elicit the 

               21 statement.

               22      Q.  Okay.  The techniques that were used in those 

               23 two, were the techniques proper or improper?

               24          MR. CRAVENS:  Objection.  Vague.

               25          THE COURT:  Do you understand the question, 

               26 Professor?  

               27          THE WITNESS:  Yes.

               28          THE COURT:  You may answer it.




                  
                  
                  
                                                                          4
                1          THE WITNESS:  Techniques were techniques that 

                2 involve the use of psychological coercion.  And as given 

                3 my understanding of what's permissible, they would have 

                4 to be considered improper.

                5          BY MR. HOOD:  Q.  In your opinion?  

                6      A.  Given my understanding of what's permissible, 

                7 they would be considered improper.

                8      Q.  Okay.  And those -- so those two cases involved 

                9 coercive techniques?

               10      A.  Those are techniques -- those are cases, the two 

               11 that I recall, in which I actually testified that 

               12 involved the use of psychological coercion.  And as I 

               13 define psychological coercion, my understanding is that 

               14 they would be considered improper.

               15      Q.  Okay.  Now, you yourself have done your own 

               16 studies on false confessions; is that correct?

               17      A.  Yes.

               18      Q.  Okay.  And in your -- probably your main 

               19 studies, you looked at -- 

               20          MR. CRAVENS:  Objection, vague as to what main 

               21 study means.

               22          MR. HOOD:  That's why I'm looking on my paper 

               23 for the name of the study.

               24          MR. CRAVENS:  Thank you.  

               25          BY MR. HOOD:  Q.  Consequences of false 

               26 confessions, and it's a long title, 1998.

               27      A.  That's not the main study that I've done, but 

               28 that is one of the publications that I've done.




                  
                  
                  
                                                                          5
                1      Q.  Okay.  And in that article, you studied -- you 

                2 looked for or looked at what you consider to be false 

                3 confessions; is that correct?

                4      A.  We took a collection of 60 cases, of the 

                5 hundreds of cases that we were aware of in which false 

                6 confessions were quite possible.  We analyzed those 60 

                7 cases.  We categorized those 60 cases in terms of the 

                8 likelihood that -- that it was a false confession, 

                9 running from essentially very strong in our conclusion 

               10 that this was a false confession to absolutely certain.  

               11 Then we analyzed the consequences for an individual of 

               12 working their way through the criminal justice system 

               13 with a confession statement attached to their case.

               14      Q.  Let me see if we can speed these things up.  

               15 I'll try and narrow my questions, okay?  

               16          You indicate you looked at what you thought were 

               17 hundreds of cases of potential false confessions; 

               18 correct?  

               19      A.  We have hundreds of cases of -- that are 

               20 reported as false confessions.  Not all of them have we 

               21 investigated.

               22      Q.  Okay.  And of those, you looked at 60?  

               23      A.  We took 60 of the ones available to us at the 

               24 moment.

               25      Q.  And these are ones that you thought were false 

               26 confessions prior to your study?

               27      A.  We categorized those statements into -- 

               28          MR. CRAVENS:  Actually, objection.  




                  
                  
                  
                                                                          6
                1 Argumentative.

                2          THE COURT:  The objection is overruled.  

                3          Doctor, you may finish.

                4          THE WITNESS:  We put those cases into categories 

                5 that all of the cases were cases we had concluded were 

                6 probably false confessions.  We put them into categories 

                7 of proven false confession versus virtually certain or 

                8 strongly likely -- very, very strong likelihood that they 

                9 were indeed false confessions.  So we did a 

               10 categorization of those 60 cases.  

               11          BY MR. HOOD:  Q.  And of those 60 cases, you 

               12 came to the opinion that only 34 of those were actual 

               13 proven false confessions?

               14      A.  Given the standards that we used, 34 fell into 

               15 the category where we could say because the murder victim 

               16 turned up alive, we are absolutely certain that the 

               17 person falsely confessed to having murdered that 

               18 individual or because the person was proven to be in 

               19 another city or in jail, or the real killer shows up and 

               20 confesses and proves that they committed the crime, or 

               21 the DNA exonerates and points to somebody else, or other 

               22 reasons of that gold standard that we could say these are 

               23 proven false confessions.

               24      Q.  Okay.  Again, you only determined 34 of the 60 

               25 cases were indeed false; correct?

               26          MR. CRAVENS:  Objection.  Argumentative.

               27          THE COURT:  The objection is overruled.  

               28          THE WITNESS:  Given the standards that we used, 




                  
                  
                  
                                                                          7
                1 that's the conclusion we came to.

                2          BY MR. HOOD:  Q.  Thank you.  

                3          Every single one of those involved a homicide; 

                4 correct?  

                5      A.  Probably.  I don't recall for every single one.

                6      Q.  You wrote the article, didn't you?

                7      A.  Yeah.  But unfortunately, I don't have total 

                8 recall of everything I've ever done in my life.  I'm 

                9 giving you the answer that reflects my state of 

               10 knowledge.  I said probably.

               11      Q.  Okay.  And in all of those 34 of those cases, 

               12 the police were under pressure to solve those murder 

               13 cases?

               14      A.  Possibly.

               15          MR. CRAVENS:  Objection.  Relevance.

               16          THE COURT:  The objection is overruled, but I'm 

               17 hoping the D.A. will get to the point quickly.

               18          BY MR. HOOD:  Q.  In looking at those cases, you 

               19 determined there was common characteristics of each of 

               20 those 34 cases; correct?  

               21      A.  I don't think we went through and formally did 

               22 that.  I certainly have an opinion about the 

               23 circumstances that are likely to produce a sufficiently 

               24 intensive interrogation method, that it might produce a 

               25 false confession.  I've noted a similarity in some of the 

               26 cases, and I've commented on that.

               27      Q.  Okay.  Those similarities that you noticed in 

               28 those, they were all murder, they all involved police 




                  
                  
                  
                                                                          8
                1 pressure to solve the case, the police were unable to 

                2 identify the suspect without physical evidence, the 

                3 police relied on hunches and gut instincts, and there was 

                4 little or no credible evidence against the suspect?

                5      A.  That sounds right.

                6      Q.  If that's a character common of false 

                7 confession, just the opposite would be the character of a 

                8 true confession?

                9      A.  Wrong.

               10      Q.  Okay.  The interrogation you looked at, the 

               11 interview you looked at, could you show me in that 

               12 interview where the defendant confessed?

               13      A.  I don't think it's contained in that interview.  

               14 I think it's contained in the written statement.

               15      Q.  So what you're looking for in what you consider 

               16 improper methods, is to see an improper method that 

               17 overcomes an innocent person's will to say I didn't do 

               18 this crime?  

               19      A.  Wrong again.

               20      Q.  What are you looking for?

               21      A.  What I'm looking for are the tactics that the 

               22 interrogator introduces that bring into the interrogation 

               23 a connection between confessing and receiving lenient 

               24 treatment, and denying and receiving the worst possible 

               25 outcome.

               26      Q.  Okay.  

               27      A.  It's the interrogator's conduct I'm looking at, 

               28 and whether or not the interrogator has introduced these 




                  
                  
                  
                                                                          9
                1 psychologically coercive elements into the interrogation.

                2      Q.  Okay.  And many of these techniques are, in 

                3 fact, proper?

                4      A.  Wrong.  I'm talking about psychologically 

                5 coercive, where I define psychologically coercive as 

                6 linking the decision to confess to receiving leniency, 

                7 and linking the decision to continue to deny and maintain 

                8 I did not commit the crime to the worst possible outcome.  

                9 That, in my understanding, is not proper.  That's what 

               10 I'm talking about.  

               11          The other things that often appear in 

               12 interrogation which will appear in interrogations that 

               13 also include psychological coercion may very well be 

               14 proper.

               15      Q.  Okay.  And in order to see if there's 

               16 psychological coercion, you have to look at whether the 

               17 person is susceptible to that coercion?

               18      A.  Wrong.

               19      Q.  Okay.  I mean, you just have to say "wrong" to 

               20 me?

               21      A.  Because you are, in fact, wrong.

               22      Q.  Why don't you just correct it?

               23      A.  Because I'm answering your question.  I'm not 

               24 volunteering.  I'm not going to teach you.  I'm just 

               25 answering your question.

               26          THE COURT:  All right, all right, all right.  

               27 Folks, we have time pressures here.  

               28          If it's helpful to the attorneys, it's not 




                  
                  
                  
                                                                         10
                1 helpful to me to hear the two of you argue.  

                2          If you think I need information, ask further 

                3 questions on cross examination.  If you don't, you don't 

                4 have to.

                5          BY MR. HOOD:  Q.  Okay.  So you look at what -- 

                6 the word susceptibility.  What do you mean by that?  

                7      A.  There are some people, or there are some 

                8 characteristics of individuals that would make them more 

                9 likely to respond to interrogation pressures than other 

               10 individuals.

               11      Q.  And susceptibility is an important factor?

               12      A.  Not necessarily.

               13      Q.  When is it important?

               14      A.  It is important if you want to explain why a 

               15 particular individual has responded to these 

               16 interrogative tactics.  Sometimes there are -- there in 

               17 fact are individuals who are so susceptible, so 

               18 vulnerable, sometimes because they're so damaged that 

               19 even ordinary, otherwise legitimate interrogation tactics 

               20 can lead them to comply and give false confessions.  

               21          The most prominent example are people 

               22 intellectually handicapped, mentally retarded and so on.  

               23 That's a vulnerability factor.  It tells you what the 

               24 individual is likely to do in reaction to a particular 

               25 interrogative strategy.

               26      Q.  So you would agree that some people are more 

               27 vulnerable to susceptibility than others; is that 

               28 correct?




                  
                  
                  
                                                                         11
                1      A.  That's correct.

                2      Q.  Okay.  And oftentimes you look at whether there 

                3 is a mental illness or a mental attribute such as, for 

                4 example, the person suffers anxiety attacks?

                5      A.  That's a character of an individual which may be 

                6 present.  That characteristic doesn't necessarily feed 

                7 into the analysis of the behavior of the interrogator.  

                8 It may have to do with an overall evaluation of what 

                9 happened between this individual and the interrogative 

               10 experience.  But that's a different question than looking 

               11 at the tactics that are used to motivate a person to give 

               12 a statement.

               13      Q.  Well, in looking at the tactics used, you have 

               14 to determine whether or not they're effective; correct?

               15      A.  Not necessarily.

               16      Q.  So whether or not they're effective is not 

               17 relevant to you?

               18      A.  I didn't say that.  I said you don't have to.  

               19 What I said was, and what I meant was, that one can look 

               20 at the conduct of the interrogator, and one can see 

               21 whether or not the interrogator introduced 

               22 psychologically coercive motivators into the 

               23 interrogation.

               24      Q.  All right.  

               25      A.  If one is then asked the question were they 

               26 effective, then you proceed and look at other things.

               27      Q.  Okay.  So you look at a case, there are coercive 

               28 tactics used.  You, without knowing more about the 




                  
                  
                  
                                                                         12
                1 individual, don't know whether they were effective or 

                2 not; correct?

                3      A.  Not necessarily.  In fact, wrong.

                4      Q.  Okay.  Do you want to explain that?

                5      A.  For example, one can have an interrogation that 

                6 introduces psychological coercion.  The person can then 

                7 offer a statement.  There's no other explanation 

                8 available for why the person offered a statement that 

                9 they committed a crime but turns out to be wrong, 

               10 inaccurate, false, because there's objective evidence 

               11 that shows up, such as the victim turns up alive.  

               12          So now we have a situation in which we have a 

               13 record of an interrogation in which psychological 

               14 coercion has been introduced.  The person has confessed, 

               15 but they've confessed to something that's demonstrably 

               16 wrong.  One can look at what happened in the 

               17 interrogation even, even the characteristics of the 

               18 individual, but just looking at the characteristics of 

               19 the interrogation, there is no other viable hypothesis 

               20 for why they confessed.  

               21          One might then want to look at the 

               22 characteristics of the individual to see if a coercive 

               23 interrogation was directed at a child, was directed at 

               24 someone who was mentally ill, was directed at someone who 

               25 was intellectually impaired, or directed at someone who 

               26 happens to be so vulnerable to pressure that they are 

               27 hypervulnerable.  

               28          That doesn't change the fact that what was 




                  
                  
                  
                                                                         13
                1 present in the interrogation is psychological coercion, 

                2 if the interrogator introduces it.

                3      Q.  Just because there's psychological coercion 

                4 doesn't make it a false confession; correct?

                5      A.  Correct.

                6      Q.  But in this case, you have no idea whatsoever 

                7 whether the defendant was susceptible any more or any 

                8 less than any other person?

                9      A.  The issue of the defendant's susceptibility in 

               10 this case is not an issue that I addressed, because I was 

               11 asked to address the properties of the interrogation.

               12      Q.  Okay.  But you indicated you would want to, in 

               13 some cases, look at the susceptibility of the person?

               14      A.  Depends on what I'm trying to accomplish.  It 

               15 depends on how broad the analysis of the interrogation 

               16 is, and perhaps even the result of the case.  Depends on 

               17 whether I'm doing it for the purpose of coming into court 

               18 to testify at a pretrial suppression hearing, where a 

               19 limited set of issues are significant, or I'm doing 

               20 something that contributes to an article to be published 

               21 in a professional journal that has an entirely different 

               22 purpose.  Different strokes under different conditions.  

               23      Q.  Under some circumstances, you use the scientific 

               24 method?

               25      A.  I didn't say that.

               26      Q.  I'm asking.  

               27      A.  No.  I'm saying depending on what I'm trying to 

               28 accomplish, I study different things.




                  
                  
                  
                                                                         14
                1      Q.  Okay.  A variable would be their susceptibility 

                2 to consider; correct?

                3      A.  Correct.

                4      Q.  You did not consider that variable in this case?

                5      A.  Because I am not analyzing whether this is a 

                6 true or false confession.  I'm analyzing the techniques 

                7 used in order to elicit the statement that was initially 

                8 denied.  I'm analyzing how the change was brought about, 

                9 through the conduct of the interrogator.  

               10          Now, bringing about that change might be easier 

               11 with some people than with other people.  But I'm 

               12 looking, for the purpose of my testimony here, at what 

               13 happened, how the person was motivated, what tactics the 

               14 interrogator used.

               15      Q.  So your answer is no?  

               16      A.  I don't remember what your question was.  My 

               17 answer is what I said.

               18      Q.  Let me ask you the question.  

               19          MR. HOOD:  Can the court reporter read back the 

               20 question?  

               21          THE COURT:  Sure.  

               22          (Whereupon the record was read.)

               23          THE COURT:  I think that answer is referring to 

               24 susceptibility. 

               25          BY MR. HOOD:  Q.  Did not consider 

               26 susceptibility?  

               27      A.  It was not relevant to the work I was doing.

               28      Q.  So you did not consider it?




                  
                  
                  
                                                                         15
                1      A.  I did not consider it because it was not 

                2 relevant to the task that I had.

                3      Q.  And when you say the task that you had, you were 

                4 told what to look at -- 

                5      A.  No.

                6      Q.  -- correct?

                7      A.  No one tells me what to look at.

                8      Q.  But you specifically did not look at her 

                9 susceptibility; correct?

               10      A.  I specifically prepared for this hearing today 

               11 and prepared for it in the way that I think is 

               12 appropriate.

               13      Q.  Whether that considers all variables or not?

               14      A.  I considered the variables I think are important 

               15 in preparing for the testimony that I was prepared to 

               16 give and gave here.

               17      Q.  Okay.  You have previously indicated that a 

               18 person's susceptibility to the coercive tactics is an 

               19 important consideration to see if those tactics were 

               20 effective; correct?

               21      A.  I didn't say that.  I said sometimes the 

               22 person's vulnerability can be extremely important.

               23      Q.  Okay.  So it can be extremely important in some 

               24 cases; correct?

               25      A.  If you're trying to figure out whether or not it 

               26 is a true or false confession, then that's something that 

               27 you would want to possibly eliminate, if there's a reason 

               28 to even consider it.




                  
                  
                  
                                                                         16
                1      Q.  Or -- 

                2      A.  One doesn't necessarily consider the 

                3 vulnerability factor, unless there's a reason to.  If 

                4 someone has a history of mental retardation, you want to 

                5 know about that.  If someone is depressed, suicidally 

                6 depressed, you want to know about that.  

                7          THE COURT:  Excuse me for just a moment, Doctor.  

                8          Mr. Hood, do remember the scope of this hearing, 

                9 which is whether or not this is a voluntary confession.

               10          MR. HOOD:  Correct.

               11          THE COURT:  Not whether or not it's true or 

               12 false.

               13          MR. HOOD:  And one of the areas of voluntariness 

               14 relates, if I may speak, whether there was offers of 

               15 leniency.  

               16          An offer of leniency must be accepted by the 

               17 defendant, and the defendant must act on that offer.  

               18 Now, I'm trying to find out if she acted on offers of 

               19 leniency.  If this witness didn't look into whether she's 

               20 susceptible to the offers, that's very relevant.

               21          THE COURT:  I don't know how susceptibility is 

               22 helpful to whether or not she acted on it.  She either 

               23 did or she didn't.  And so far, actually, no one has 

               24 given me evidence that she actually confessed.  So far, 

               25 all the professor has testified to is a portion of the 

               26 hearing wherein she did not confess.  

               27          MR. HOOD:  Correct.

               28          THE COURT:  So I'm suggesting to you that the 




                  
                  
                  
                                                                         17
                1 current argument doesn't seem helpful to me in the 

                2 analysis I'm being called upon to make.  That's as big a 

                3 hint as a judge knows how to give to an attorney.  

                4          BY MR. HOOD:  Q.  Now, people can confess 

                5 because they've been offered leniency or because 

                6 truthfully or untruthfully, they can confess because 

                7 they're afraid, they're suffering from a mental illness, 

                8 they've been threatened; is all that true?  

                9      A.  Those are possible reasons for eliciting a 

               10 confession.

               11      Q.  Okay.  And those officers or interrogators use 

               12 different tactics.  

               13      A.  Correct.

               14      Q.  Would you consider a powerful tactic to get a 

               15 person to confess, or an effective tactic to get a person 

               16 to confess, is to show them the evidence?

               17          MR. CRAVENS:  Objection.  Compound and vague as 

               18 to powerful, vague as to effective.

               19          THE COURT:  The objection is overruled.  

               20          You may answer, sir.

               21          THE WITNESS:  As I said yesterday, or the day 

               22 before yesterday, one of the contributing factors to 

               23 setting up the effective use of a motivator is to first 

               24 convince the person there's overwhelming evidence linking 

               25 them to the crime.  That's a standard part of 

               26 interrogation, and one of the necessary conditions to 

               27 elicit a confession.

               28          THE COURT:  I think the diagram referred to that 




                  
                  
                  
                                                                         18
                1 with the letters EP, if I recall correctly.

                2          BY MR. HOOD:  Q.  Would you say that it would be 

                3 considered very effective in getting a person to confess 

                4 to lay out very strong evidence in front of them?  

                5      A.  That's one of the things that's typically done.  

                6 And the research shows that it is effective in concert 

                7 with other things.

                8      Q.  In fact, you wouldn't even consider it part of 

                9 an interrogation to lay out, you know, here's physical 

               10 evidence; here's your bloody handprint on the wall; 

               11 here's a videotape of you killing the victim.  

               12      A.  Of course I would consider it part of an 

               13 interrogation.

               14      Q.  Would you consider it -- it's not a question to 

               15 lay out the physical evidence.  Would you consider it 

               16 interrogation to show the suspect, Here's the evidence?

               17      A.  It's the -- one of the major steps in moving a 

               18 person from "I didn't do it" to preparing them to make 

               19 the admission.  

               20      Q.  Okay.  In laying out the evidence, you wouldn't 

               21 consider laying out a piece of physical evidence -- would 

               22 you consider that coercive?

               23      A.  No.

               24      Q.  Would you consider it improper?

               25      A.  No.

               26      Q.  Would you admit that when a person sees the 

               27 actual evidence against them that it can, in fact, cause 

               28 them to finally reach that breaking point?




                  
                  
                  
                                                                         19
                1      A.  It's possible.

                2      Q.  Isn't it often the case?

                3          MR. CRAVENS:  Objection.  Vague.  

                4          THE COURT:  Sustained.  

                5          BY MR. HOOD:  Q.  In this case, when did the 

                6 defendant confess?  

                7      A.  The -- there's a written statement that the 

                8 defendant wrote in order to satisfy the demands of the 

                9 interrogator.  That's the statement.

               10      Q.  "Satisfy the demands"?

               11      A.  Yeah.

               12      Q.  What do you mean by that?

               13      A.  Well, you may recall that Mr. Greg told her 

               14 repeatedly that if you don't cooperate, we are going to 

               15 call the police.  Whereas if you do cooperate, you can 

               16 receive leniency, you can perhaps keep your job, maybe be 

               17 moved to another position.  It all depends on whether you 

               18 cooperate or not.  That's what's being determined here.  

               19 Responsive to that, she wrote out the statement.

               20      Q.  Okay.  I didn't see anywhere where he said, I 

               21 demand that you do that.  

               22      A.  He told her that either we're going to call the 

               23 police, or you're going to get moved to another job.  It 

               24 depends on what you do here and now, whether or not you, 

               25 in effect, confess.

               26      Q.  Those are your words, he demanded?

               27      A.  That's my characterization of the following:  

               28 Let me just find it for you.  




                  
                  
                  
                                                                         20
                1      Q.  My question is -- 

                2      A.  Can I finish, please?  Thank you.

                3          THE COURT:  No, you may not finish.  

                4          I'd like you to move on to a new area, Mr. Hood.  

                5 It is just not helping me here.

                6          BY MR. HOOD:  Q.  There's two parts -- would you 

                7 agree there was two parts to the confession or admission, 

                8 written and then the statements after that.  Would you 

                9 agree with that?  

               10      A.  No.

               11      Q.  Okay.  How many parts to the confession were 

               12 there?

               13      A.  There was an interrogation process that started 

               14 from the time she goes into the room and finishes to the 

               15 time she walks out of the room and leaves the store.

               16      Q.  Okay.  Are there two points or one point, if you 

               17 will?  I'm looking for your characterization, your words, 

               18 so I can go from there of -- did she admit?  Confess?  

               19 Make statements on one occasion?  Two occasions?  For 

               20 example, I'm breaking it down to the written part and the 

               21 oral part after the written, just so we're on the same 

               22 page.  

               23      A.  Why don't I get the written -- the statement 

               24 that she wrote or the statement she signed.

               25      Q.  Okay.  You are -- have you read all the reports 

               26 in this case?

               27      A.  I read everything that was supplied to me.

               28      Q.  Okay.  I'm sorry.  Let's take a step back.  




                  
                  
                  
                                                                         21
                1          Did you read the police reports in this case?  

                2 Well, can I see what you -- 

                3      A.  Sure.

                4      Q.  -- are referring to?  

                5      A.  Here?  This?  Is that what you're talking about?  

                6      Q.  I'd like your whole pile of papers real quick.  

                7          Okay.  I have the complaint.  It appears you 

                8 have the Morgan Hill police report.  I'm assuming you 

                9 read everything here.  

               10      A.  I've read everything there.

               11      Q.  Okay.  You have Lynett Beard's statement.  

               12 You've read that.  You have an interview.  You have Ross' 

               13 reports; correct?

               14      A.  Correct.

               15      Q.  Ross' store apprehension report.  You've read 

               16 that.  

               17          And at some point, I'm going to want a copy of 

               18 some of these things here because it doesn't look like I 

               19 have them.  I don't want to slow things down now.  

               20          So there is the written part, and then there's 

               21 an oral admission after the written part; is that 

               22 correct?  

               23      A.  Seems to be correct.

               24      Q.  Okay.  Thank you.  The -- isn't it correct that 

               25 immediately preceding her written confession, immediately 

               26 preceding, a videotape was shown to her?

               27      A.  That's my understanding.

               28      Q.  Okay.  And a videotape of one of the crimes is 




                  
                  
                  
                                                                         22
                1 your understanding of what was shown to her?

                2      A.  Videotape of her walking out of the store was 

                3 shown to her.

                4      Q.  Which is alleged as one of the crimes?

                5      A.  Oh, you're adding "alleged" now.

                6      Q.  Counsel (sic), do you understand the question?

                7      A.  I understand that you changed the question from 

                8 the way you said it the first time -- 

                9      Q.  Doctor, I mean.  

               10      A.  -- to the way you just said it the second time.

               11      Q.  Was she shown a videotape of her walking out of 

               12 the store?

               13      A.  Yes.

               14      Q.  Okay.  And was it just then -- immediately after 

               15 that is when she confessed; correct?

               16      A.  My recollection is that that -- 

               17          MR. CRAVENS:  I'll object on speculation, unless 

               18 he knows.  It also calls for hearsay.

               19          THE COURT:  Sustained.

               20          BY MR. HOOD:  Q.  Based upon your review of the 

               21 reports, based upon your understanding, based upon the 

               22 timing of when she confessed, based upon everything you 

               23 read, it is your understanding the event immediately 

               24 preceding her written confession was a showing of that 

               25 videotape; correct?  

               26      A.  I don't believe so.

               27      Q.  Okay.  What was the event immediately preceding?

               28      A.  My understanding is that after Mr. Greg turned 




                  
                  
                  
                                                                         23
                1 off the tape recorder -- I'm trying to -- my recollection 

                2 is that there was a break in the interrogation when she 

                3 was shown the tape.

                4      Q.  Correct.  

                5      A.  My understanding is that it went back on the 

                6 record -- back on tape after she was shown the tape.  

                7 It's my understanding that subsequent to that, 

                8 Mr. Brandon turned off the tape recorder, and then there 

                9 was exchange between them, and then she wrote the written 

               10 statement.

               11      Q.  You lost me.  Where -- where was she shown the 

               12 videotape?

               13      A.  I thought there was -- my recollection as I'm 

               14 sitting here now is that there was a break in the 

               15 recording at a time when she was shown the tape.  And 

               16 then there was more recording, and then the tape recorder 

               17 was turned off.

               18      Q.  If -- I'm gonna ask you to assume facts 

               19 differently.  

               20      A.  Okay.

               21      Q.  Assume that it was after the tape was turned 

               22 off.  

               23      A.  Okay.

               24      Q.  She was then taken to another room where there 

               25 was a VCR and a television.  

               26      A.  Right.

               27      Q.  Assume those facts.  She was then shown the tape 

               28 of her leaving Ross on that night in question.  




                  
                  
                  
                                                                         24
                1      A.  Right.

                2      Q.  Have you seen that videotape?

                3      A.  No.

                4      Q.  So you have no idea the effect of that 

                5 videotape?

                6          MR. CRAVENS:  Objection.  Relevance on this line 

                7 of questioning.

                8          MR. HOOD:  Your Honor -- 

                9          THE COURT:  The objection is overruled.  

               10          THE WITNESS:  I haven't seen the tape.

               11          BY MR. HOOD:  Q.  Okay.  You don't think looking 

               12 at the evidence that was shown to her during the 

               13 interrogation would be important to determine why she 

               14 confessed?  

               15      A.  I'm not determining why she confessed.  I 

               16 haven't been asked to do that.  What I have been asked to 

               17 do is analyze the tactics that were used and the fact 

               18 that at a certain point in this interrogation, after 

               19 being exposed to highly psychologically coercive tactics, 

               20 she is then shown the videotape of her walking out, is 

               21 merely another part of the interrogation.  I was aware of 

               22 that, and I was aware she wrote the written statement 

               23 after that.

               24      Q.  All right.  

               25      A.  Perhaps I misremembered where that happened.  

               26 But the point is, it's all one process.  The deal was 

               27 offered.  The deal was on the table.  The additional 

               28 evidence she'd asked to see before was finally shown to 




                  
                  
                  
                                                                         25
                1 her.  There was another exchange off the tape, and then 

                2 she confessed.  No one has informed me that the deal was 

                3 ever withdrawn.

                4      Q.  Okay.  Let's ask you some questions on that.  

                5 Are you expressing an opinion as to whether certain 

                6 conduct during that interrogation caused her to confess?

                7      A.  I'm expressing an opinion that the interrogator 

                8 introduced psychologically coercive factors into this 

                9 interrogation, and I see no other explanation for why she 

               10 elected to write the statement.

               11      Q.  Okay.  But you yourself have said showing a 

               12 suspect physical evidence can, in fact, cause a person to 

               13 confess; correct?

               14          MR. CRAVENS:  Objection.  Relevance.

               15          THE COURT:  More important, it's been asked and 

               16 answered.  Please move on.  

               17          BY MR. HOOD:  Q.  You never looked at a tape 

               18 that was shown to the defendant immediately -- 

               19          THE COURT:  He already told us that, Counsel.  

               20 Next question.

               21          BY MR. HOOD:  Q.  Would looking at that tape you 

               22 consider relevant in your opinion?  

               23      A.  No.  I'm aware of the existence of the tape.  

               24 I'm aware of what was on the tape.  

               25      Q.  But it's not relevant?

               26      A.  Looking at it doesn't necessarily tell me 

               27 anything more than I already knew.

               28      Q.  The type of room she's in, is that relevant?




                  
                  
                  
                                                                         26
                1      A.  Not particularly.  There are standards set up, 

                2 tactics for the interrogations, usually done in private.  

                3 I satisfied myself that that was the case here.  It 

                4 wasn't done in the middle of the store, wasn't done in 

                5 her living room.  It was done in the privacy of the 

                6 store.

                7      Q.  So whether or not she was shown actual physical 

                8 evidence is not relevant to determine her reasons for 

                9 confessing?

               10      A.  The existence of the videotape was discussed 

               11 during the recorded part.  She asked to see it during the 

               12 recorded part.  She was told that that only happens when 

               13 you're on your way to court.  That was a factor that was 

               14 part of the interrogation from early on.  I was well 

               15 aware of the fact that she was shown the tape and that 

               16 that preceded her writing the statement.

               17      Q.  Would factors you would consider be whether the 

               18 defendant has knowledge that the police didn't have and 

               19 mentioned it in the confession?

               20          MR. CRAVENS:  Objection.  It calls for 

               21 speculation on what the cops might have known.  

               22          THE COURT:  And of course there were no "cops" 

               23 in this case.  But I think the question is not helpful 

               24 for the purpose for the witness' testimony.

               25          MR. HOOD:  At this point, this testimony, you're 

               26 correct, Your Honor.  I'm going on to phase two.  I will 

               27 withdraw the question.  

               28          BY MR. HOOD:  Q.  There were, as far as you 




                  
                  
                  
                                                                         27
                1 know, no false accusations or lies in this interrogation 

                2 by the interviewer?  

                3      A.  I haven't been provided with any information 

                4 that tells me the true status of the evidence ploys that 

                5 were introduced.

                6      Q.  So the answer to the question is, as far as you 

                7 know, there were no false accusations or lies by the 

                8 interviewer; is that correct?

                9      A.  I don't know whether they were true or false.  I 

               10 just know they were introduced.

               11      Q.  False accusations and lies, you know were 

               12 introduced?

               13      A.  I know statements were introduced.  I don't know 

               14 the true status of those statements.

               15      Q.  Thank you.  I thought I misheard you.  

               16          I apologize.  I don't know if we actually 

               17 finished that hypothetical.  I may be going back into it.  

               18 I apologize if I am.  

               19          Assuming, because you have one understanding of 

               20 when the videotape was shown and I have another, and 

               21 we'll present other witnesses that the videotape was 

               22 shown, it was shown in a separate room, and it was 

               23 immediately after the showing of the videotape, and we 

               24 both know what videotape we're talking about, right?  

               25      A.  Correct.

               26      Q.  Would you think -- 

               27          MR. CRAVENS:  Objection.  Calls for facts that 

               28 are not in evidence.




                  
                  
                  
                                                                         28
                1          THE COURT:  The objection is overruled.  

                2          BY MR. HOOD:  Q.  Would you consider that, if 

                3 the confession occurs right after, that that showing of 

                4 the evidence played a role in the confession?  

                5      A.  I've always assumed that confronting someone 

                6 with what purports to be evidence of their involvement in 

                7 the crime is a factor that contributes to someone 

                8 deciding to confess.  It's part of my basic analysis.  

                9 What you're adding in doesn't change anything.

               10      Q.  Okay.  Okay.  And don't you often look at what 

               11 happened immediately before the confession, what was the 

               12 breaking point?

               13      A.  No.  Because in my work on this subject, I've 

               14 learned that what happens, particularly in cases in which 

               15 innocent people confess, is that often an interrogator 

               16 will make a deal offer, put it on the table, so to speak.  

               17 The innocent person, not wanting to confess to something 

               18 they didn't do under any circumstances, doesn't 

               19 immediately respond to the deal offer.  But the deal 

               20 offer remains on the table.  

               21          The interrogation continues up to the point at 

               22 which the person has now given up on any possibility of 

               23 ever convincing the interrogator that they didn't commit 

               24 the crime.  The deal offer remains sitting in the middle 

               25 of the table.  The person, now despairing of their 

               26 ability to prove their innocence to the intransigent 

               27 interrogator, now decides to accept the deal.  The person 

               28 may or may not verbalize that at that point.  




                  
                  
                  
                                                                         29
                1          But if you asked them about it, as I often do, I 

                2 find out that they in fact at that moment decided to 

                3 accept the deal which was available to them from the time 

                4 it was put on the table.  It's only when they become so 

                5 dispirited by their inability to extricate their self 

                6 from the situation that is getting worse and worse that 

                7 they decide to accept the deal that's been there for 

                8 quite a while.  

                9          So that's what I find sometimes happens when I 

               10 study carefully and fully the whole process of witnessing 

               11 a false confession from someone who is innocent.  It may 

               12 also happen, and I've had experience with this as well, 

               13 someone who in fact committed a crime is made aware of a 

               14 deal.  They don't want to accept it.  At a later point, 

               15 they decide the deal is the best thing for them to do.  

               16 Then they act on accepting the deal.  

               17          Now, what immediately preceded the decision to 

               18 accept the deal may not be very important because the 

               19 deal was on the table.  The deal was never withdrawn.  It 

               20 was always available.  And at some later point, they 

               21 decide to act on it.  It's sort of like a sale that's 

               22 going on until Thursday afternoon at noon.  You've got 

               23 until that time to get there, until the sale closes.

               24      Q.  You have no idea in this case whether she acted, 

               25 in other words she confessed, because of the 

               26 interrogation techniques or because of finally seeing the 

               27 videotape?  

               28      A.  It's not how she described it to me.




                  
                  
                  
                                                                         30
                1      Q.  You have no idea?

                2      A.  I interviewed her.

                3      Q.  Prior to interviewing her, you mean you're 

                4 assuming what she tells you is the truth?  

                5      A.  You're assuming it's not.

                6      Q.  My question is, you're assuming what she tells 

                7 you is the truth; correct?

                8      A.  I'm assuming it's what she told me.

                9      Q.  You don't know whether -- you just assume it's 

               10 true; correct?

               11      A.  I'm assuming it -- it's what she told me, and it 

               12 happens to square very nicely with the objective evidence 

               13 in this case.

               14      Q.  Okay.  So is that that you assume it's true?

               15      A.  I'm assuming it squares nicely and is consistent 

               16 with the evidence of the way in which she was exposed to 

               17 psychological coercion in the objectively provable part 

               18 of the record of this interrogation.

               19      Q.  Did the viewing of that videotape have any 

               20 effect on whether or not she confessed?

               21      A.  Not that I know of.

               22      Q.  Don't you think it odd that the confession 

               23 occurred right after she viewed it?

               24      A.  Not in the least.

               25          MR. CRAVENS:  Objection.  Argumentative.

               26          THE COURT:  That objection is overruled.  

               27          Let me sustain my own relevance objection.  

               28 Whether it's odd or not isn't going to help me.  Let's 




                  
                  
                  
                                                                         31
                1 just get going, Mr. Hood.  

                2          BY MR. HOOD:  Q.  Nowhere in that interview that 

                3 you read, and you're talking about these tactics or 

                4 coercive tactics, did she confess to any of those?  

                5      A.  Correct.

                6          MR. HOOD:  Nothing further, Your Honor.

                7          THE COURT:  Is there to be redirect?  

                8          MR. CRAVENS:  Just very briefly.  

                9                REDIRECT EXAMINATION BY MR. CRAVENS

               10      Q.  Doctor Ofshe, in the area of false confession, 

               11 does your theories and methods and your hypothesis change 

               12 because it's a murder case versus some other kind of 

               13 case, like a theft case?

               14      A.  No.

               15      Q.  So you're -- so it has -- so it has nothing to 

               16 do with the type of crime?

               17      A.  No.  It has to do with the type of tactics that 

               18 the interrogator uses.  If the interrogator uses the 

               19 standard set of tactics, there's no reason to change the 

               20 analysis, because the interrogator is practicing the same 

               21 interrogation directed at a different crime.

               22      Q.  And have you ever actually done another theft 

               23 case?

               24      A.  Oh, yes.

               25      Q.  Could you tell us how many theft cases you've 

               26 done, if you know?

               27      A.  I couldn't tell you the number.  I can think of 

               28 three or four examples.




                  
                  
                  
                                                                         32
                1      Q.  Could you give us some example of a theft case 

                2 you've done, the last theft case that you have done that 

                3 you can remember?

                4      A.  The last one I worked on, I never testified.

                5          MR. HOOD:  Objection, Your Honor.  This is 

                6 getting far afield and irrelevant.

                7          THE COURT:  I'll sustain the relevance 

                8 objection.

                9          BY MR. CRAVENS:  Q.  And is it a common 

               10 technique of an interrogator to ask the person being 

               11 interrogated to prove that they're innocent?  

               12      A.  In effect, that's what happens.

               13      Q.  And in your experience, is it possible for a 

               14 person that's pulled into a room to legitimately prove 

               15 their innocence?

               16          MR. HOOD:  Objection.  I don't -- well, if the 

               17 witness understands the question.  I don't.  Objection, 

               18 vague.  

               19          THE COURT:  Again, Counsel, it's just not 

               20 helpful to me in the decision that I need to make 

               21 considering the voluntariness.  The professor brings a 

               22 great deal of expertise.  Whether someone can prove their 

               23 innocence in a closed room, I don't think, is within his 

               24 expertise.  

               25          So please, let's move on.

               26          MR. CRAVENS:  No further questions, Your Honor.

               27          THE COURT:  Anything, Mr. Hood?  

               28          MR. HOOD:  No.




                  
                  
                  
                                                                         33
                1          THE COURT:  Doctor, you can step down.

                2          THE WITNESS:  Thank you, Your Honor.

                3 

                4 

                5 

                6 

                7 

                8 

                9 

               10 

               11 

               12 

               13 

               14 

               15 

               16 

               17 

               18 

               19 

               20 

               21 

               22 

               23 

               24 

               25 

               26 

               27 

               28 





                  
                  
                  
                                                                         34

                1 STATE OF CALIFORNIA      )
                                           )
                2 COUNTY OF SANTA CLARA    )
                       
                3      
                       
                4 

                5      

                6      I, Michelle Caldwell, CSR 9045, in and for the State 

                7 of California, County of Santa Clara, do hereby certify 

                8 that I was appointed by the Court to act as court 

                9 reporter in the above-entitled action; that I reported 

               10 the same into typewriting as appears by the foregoing 

               11 transcription; that said transcript is a full, true and 

               12 correct statement of the proceedings to the best of my 

               13 ability.

               14      

               15      

               16      Dated this 7th day of November, 2003.

               17      

               18      

               19      
                       
               20      ____________________________________
                       Michelle Caldwell
               21      Certified Shorthand Reporter No. 9045
                           
               22 

               23          

               24          

               25          

               26          

               27          

               28          




                  
                  
                  
                                                                         35
                                                                                         1          SUPERIOR COURT OF THE STATE OF CALIFORNIA .
                               IN AND FOR THE COUNTY OF SANTA CLARA
                2                     SOUTH COUNTY FACILITY
                       
                3 

                4      BEFORE THE HONORABLE EDWARD F. LEE

                5      
                       
                6      THE PEOPLE OF THE STATE      )
                       CALIFORNIA,                  )
                7                                   )
                                Plaintiff,          )
                8                                   )
                        vs.                         )Case No. FF301260
                9                                   )
                       AMY MARIE GARVIN,            )
               10                                   )
                                Defendant.          )
               11      _____________________________)
                       
               12 

               13              REPORTER'S TRANSCRIPT OF PROCEEDINGS

               14                        October 15, 2003

               15      

               16      

               17      

               18      APPEARANCES:

               19      For the Plaintiff:     MARK HOOD,
                                              DEPUTY DISTRICT ATTORNEY
               20      
                       
               21      
                       
               22      
                       For the Defendant:     LEONARD CRAVENS,
               23                             KENNETH PINTO,
                                              ATTORNEYS AT LAW
               24                             
                                              
               25      
                       
               26      
                       
               27      
                       
               28      MICHELLE CALDWELL, CSR 9045, Official Reporter
                       



                  
                  
                  
                                                                          1
                1 SAN MARTIN, CALIFORNIA                   OCTOBER 15, 2003
                           
                2 

                3          MR. CRAVENS:  Yes, Your Honor.  The defense 

                4 calls Doctor Richard Ofshe to the witness stand, please.  

                5          THE COURT:  As soon as you're seated with the 

                6 microphone pointed directly at your chin, if you would 

                7 give us your full name, please, and spell it for the 

                8 record.

                9          THE WITNESS:  Richard J. Ofshe, O-f-s-h-e.

               10          THE COURT:  Counsel?  

               11          MR. CRAVENS:  Good morning, Your Honor.

               12                 DIRECT EXAMINATION BY MR. CRAVENS

               13      Q.  Good morning, Doctor Ofshe.  

               14          What city do you reside in?  

               15      A.  Berkeley, California.

               16      Q.  And what is your current occupation?

               17      A.  I'm an emeritus professor at the University of 

               18 California at Berkeley, although I've been recalled and 

               19 continue to teach and research.

               20      Q.  How long have you been on the faculty at Cal 

               21 Berkeley?

               22      A.  Since 1968, I believe.

               23      Q.  And what is your position there at the 

               24 university?

               25      A.  Professor in the department of sociology.

               26      Q.  Is that a full professor?

               27      A.  Yes.

               28      Q.  And do you have tenure at the university?




                  
                  
                  
                                                                          2
                1      A.  Yes.  I've had tenure since 1969 or 1970.

                2      Q.  How long -- approximately how long did it take 

                3 you to get tenured?

                4      A.  Two years.

                5      Q.  What's the normal time it takes for a professor 

                6 to get tenured at a university such as Cal Berkeley?

                7      A.  Seven.

                8      Q.  What's your area of teaching at Cal Berkeley?

                9      A.  Social psychologist.  I teach and do research in 

               10 that specialty area, which is common to both psychology 

               11 and sociology.  My work is on that part of social 

               12 psychology that deals with influence and decisionmaking 

               13 and, more particularly, with extreme forms of influence.  

               14 That's been my specialty for the last 25 years at least.

               15      Q.  And what is your -- what areas have you been 

               16 trained in?

               17      A.  Trained in psychology, trained in sociology.  

               18 Initially in my career, I did micro economics, 

               19 mathematical models of decisionmaking, lab research, 

               20 field research methods, everything that's relevant to the 

               21 kind of research and teaching I do.  

               22      Q.  What exactly is social psychology?

               23      A.  It's a sub-field common to both psychology and 

               24 sociology.  It studies really the relationship between a 

               25 person and an environment, a setting.  So it deals with 

               26 decisionmaking.  It deals with influence in different 

               27 social settings.  And in my part of it, I focus on 

               28 influence in extraordinary social settings capable of 




                  
                  
                  
                                                                          3
                1 eliciting extraordinary conduct from people.

                2      Q.  What areas do you specialize in?

                3      A.  I specialize in the study of extreme forms of 

                4 influence.  Particularly, over the years, I've worked on 

                5 three applied problems, three areas: One had to do with 

                6 the way in which people would be recruited, manipulated, 

                7 and made to be willing to engage in violence or suffer 

                8 high levels of exploitation in what would be called a 

                9 high controlled group, otherwise known as a cult group, 

               10 the way in which ordinary people can be gotten to do very 

               11 extraordinary things.  That was the first area that I 

               12 worked in.  

               13          The second area had to do with the way in which 

               14 poorly trained psychotherapists misusing techniques of 

               15 influence could lead people to come to sincerely believe 

               16 they had suddenly recovered memories of sexual abuse that 

               17 may have gone on for ten, fifteen years that they didn't 

               18 know about until they entered psychotherapy.  This was a 

               19 recovered memory problem.  It was a public health problem 

               20 that arose in the late eighties and into the mid 

               21 nineties.  I did a lot of work on the way in which people 

               22 could be gotten to mistake usually hypnotically created 

               23 imagery and classify that imagery as memory and, 

               24 therefore, be made to believe that their parents, 

               25 neighbors, teachers had been sexually abusing them for 

               26 decades, and they didn't know it, or that they were 

               27 kidnapped by space aliens or had suffered trauma in a 

               28 past life, any of the things that depend on creating a 




                  
                  
                  
                                                                          4
                1 belief about something that didn't happen.  

                2          And then the third area, the one that's been my 

                3 principal focus for the last 15 plus years, has been the 

                4 study of police interrogation, the techniques and tactics 

                5 of influence that police bring to bear, police or 

                6 interrogators in general, bring to bear on an individual 

                7 for the purpose of getting that person to admit to having 

                8 committed a crime and then to give a confession, which is 

                9 a detailed account of the crime.  And I study the tactics 

               10 that are used and the way in which such tactics can 

               11 produce both true and false confessions.  

               12      Q.  Doctor, in the area of cults, are you considered 

               13 a leading figure in that area as far as influence goes?

               14      A.  When I was working in that area, I was regarded 

               15 as one of the principal people working in the area.  

               16 During the period that I was working in that area, I 

               17 shared in the award of a Pulitzer Prize to the Point 

               18 Reyes Light Newspaper for an exposé of a violent group 

               19 called Synanon, which started out as a drug rehab 

               20 organization.  

               21          And my work on that got a lot of attention.  

               22 Then I worked on issues involving other violence 

               23 generating cult groups.

               24      Q.  In the area of recovery memory syndrome, are you 

               25 considered a leading figure in that area?

               26      A.  I think that's also fair to say.  The book that 

               27 I wrote about that was called Making Monsters, which was 

               28 a contributor to bringing the problem to an end.  




                  
                  
                  
                                                                          5
                1          I was awarded a prize for the best paper on 

                2 clinical hypnosis of the year in 1994 by the 

                3 International Society for the Study of Clinical and 

                4 Experimental Hypnosis.  

                5          Probably the most well-known of the cases that I 

                6 worked on eventually became a movie in which I was played 

                7 by William Devane.  That gives you a certain notoriety as 

                8 well.

                9      Q.  In the area of interrogations, are you 

               10 considered a leading figure?

               11      A.  I think I'm probably considered the leading 

               12 person in the United States.

               13      Q.  Could you explain how -- what happened to get 

               14 you there?

               15      A.  I began studying police interrogation, began 

               16 writing about it, published a series of articles, long 

               17 treatises, sometimes in law reviews, reporting the 

               18 research my colleague Richard Leo and I were doing.  

               19 Those papers, I think, have been fairly influential.  And 

               20 I also did a lot of the fundamental work that has brought 

               21 this area of research into courtrooms all over the United 

               22 States and worked on some of the most widely known false 

               23 confession cases in recent American history.

               24      Q.  And have you worked on any well-known cases in 

               25 the area of police interrogation?

               26      A.  Yes.

               27      Q.  Could you name just a few?

               28      A.  I'm currently working on the Central Park jogger 




                  
                  
                  
                                                                          6
                1 case, the new version of it, where the young men who 

                2 falsely confessed have now been exonerated.  I was the 

                3 person who worked on what's called the Phoenix temple 

                4 murder case in which nine Buddhists, seven of them monks, 

                5 were killed at a Buddhist temple just outside Phoenix.  

                6 And three young men who were identified supposedly as 

                7 having been participants in the crime, but indeed had 

                8 nothing to do with it, were made to falsely confess to 

                9 mass murder.  

               10          I've also worked on, for the prosecution, the 

               11 second Menendez' brothers trial having to do with the 

               12 issues of the confession that they gave to their 

               13 psychologist; some of the Innocence Project cases, cases 

               14 in which individuals have been exonerated of crimes 

               15 because their DNA was found to be present and exonerated 

               16 them, but they had confessed.  And so after the original 

               17 convictions were thrown out, the state was threatening to 

               18 retry them based on the confession.  Then I would work on 

               19 those projects in connection with the Innocence Project.

               20      Q.  Hey, Doctor, could you explain to the jury what 

               21 your education is?

               22      A.  I have a bachelor's degree in psychology, 

               23 masters in sociology, Ph.D in the sociology department, 

               24 with all of my work in social psychology, from Stanford.  

               25      Q.  Did you get any other specialized training while 

               26 you've been getting your education?

               27      A.  Not specialized training while I was getting my 

               28 education.




                  
                  
                  
                                                                          7
                1      Q.  Are you a member of any professional societies 

                2 or organizations?

                3      A.  I'm a member of the American Psychological 

                4 Association, the American Psychological Society, the 

                5 American Sociological Association.

                6      Q.  Do any of those organizations have any special 

                7 licensing procedures or requirements?

                8      A.  The organizations don't.  If you're a certain 

                9 kind of psychologist, you need to be licensed, if you're 

               10 a clinical psychologist.  I'm not, so there's no 

               11 licensing requirement that applies to me.

               12      Q.  Do any of the areas that you work in require 

               13 licensing?

               14      A.  No.

               15      Q.  As a result of your work in this field, in this 

               16 particular field, have you received any awards or honors 

               17 besides what you already mentioned?

               18      A.  I was awarded a John Simon Guggenheim Foundation 

               19 Fellowship early in my career.  That's considered an 

               20 honor in my field.  I mentioned my work with Point Reyes 

               21 Light, and then also the award for the best paper on 

               22 clinical hypnosis.  So those are the principal awards.

               23      Q.  Okay.  And are you published in your field?  And 

               24 could we please keep this brief, because I suspect you 

               25 have a lot.  

               26      A.  I published a number of books and five or six 

               27 pages worth of articles.  But since we're talking about 

               28 interrogation, I published -- since 1989, a long series 




                  
                  
                  
                                                                          8
                1 of papers on the subject of police interrogation and true 

                2 and false confession, as I said, beginning in 1989, a 

                3 series.  Currently, we are turning that series into a 

                4 book which hopefully will be done in maybe a year.  And 

                5 the book is called Confessions of the Innocent.

                6      Q.  And you're working on that right now?

                7      A.  Correct.

                8      Q.  And how long have you been working in the field 

                9 of interrogation in the subarea of false confessions?

               10      A.  Since the mid -- mid 1980s, maybe two-thirds of 

               11 the way through the eighties.

               12      Q.  Have you worked as a consultant with any law 

               13 enforcement agencies, either police or prosecuting or 

               14 defending?

               15      A.  Yes.  Over the years, I've been a consultant to 

               16 the Marin County Sheriff's Department; Office of the 

               17 Attorney General; United States Attorney's Office in Los 

               18 Angeles on two occasions, one involving the Delorian 

               19 case; the Office of the Attorney General of the State of 

               20 Arizona; the United States Department of Justice, both 

               21 the tax division and the criminal division; the 

               22 prosecuting attorney of Jefferson County, West Virginia; 

               23 the L.A. D.A.'s office; the Internal Revenue Service; 

               24 U.S. Attorney's Office in West Virginia, Thirston County; 

               25 Washington prosecutor's office; state's attorney's office 

               26 in Florida, Fort Lauderdale office; Office of the State 

               27 of Missouri in connection with a pardon of Johnny Lee 

               28 Wilson; L.A. D.A.'s office in connection with the 




                  
                  
                  
                                                                          9
                1 Menendez case; prosecuting attorney of Franklin County, 

                2 Indiana; and I'm currently working with the Attorney 

                3 General's Office in the State of California in 

                4 preparation for a trial that should happen later this 

                5 year.  

                6      Q.  So in short, you have testified and consulted 

                7 with both prosecuting- and defense-type people; correct?

                8      A.  Certainly.

                9      Q.  Particularly in the area of interrogation, false 

               10 confessions, have you testified as an expert before?

               11      A.  Yes.

               12      Q.  Could you tell the jury how many times that you 

               13 testified, if you know?

               14      A.  On the subject of police interrogation, 

               15 influence in police interrogation or interrogation in 

               16 general, 194 times.

               17      Q.  And -- and could you describe the circumstances 

               18 in just a couple of those?

               19      A.  Typically, the cases that I'm involved in are 

               20 cases in which one of two things has happened: Either the 

               21 police have elicited a confession improperly using 

               22 techniques that are prohibited, and the issue will come 

               23 up whether the interrogation -- how the interrogation 

               24 should be treated.  And so I might testify at a hearing 

               25 on that subject.  

               26          And then I've testified numerous times in 31 

               27 different states at trials involving the confessions of 

               28 people that are arguably, if not certainly, false 




                  
                  
                  
                                                                         10
                1 confessions.

                2      Q.  Doctor, how many times have you testified in the 

                3 State of California?

                4      A.  Sixty-four times.

                5      Q.  With respect to interrogations, and particularly 

                6 with respect to false confessions, are there any 

                7 recognized studies in the field that support or discuss 

                8 this phenomenon?

                9      A.  There are.  On the subject of false confession 

               10 in particular, there are numerous studies, numerous 

               11 publications, but three principal publications.  The 

               12 first is a study by Professors Biddot and Ratliff 

               13 published in the Stanford Law Review in 1987, and the 

               14 title was Miscarriages of Justice in Potentially Capital 

               15 Cases.  

               16          They studied 350 miscarriages, cases in which 

               17 the innocent were convicted, and found that in 49 of 

               18 those cases, that is 14 percent, the principal cause, the 

               19 cause of the miscarriage of justice was the person had 

               20 been made to falsely confess.  

               21          The second principal study was done at the 

               22 Center on -- was done at the Center on Wrongful 

               23 Convictions at Northwestern University Law School.  

               24 That's a study of homicide, miscarriages in the State of 

               25 Illinois.  And in that one, slightly more than 50 percent 

               26 of the miscarriages of justice that were identified 

               27 were -- there was a false confession, and that's presumed 

               28 to be the principal cause of the miscarriage.  




                  
                  
                  
                                                                         11
                1          The third study on the issue of how significant 

                2 a problem false confessions are comes from the Innocence 

                3 Project, the project that is ongoing today looking at DNA 

                4 in connection with, usually, crimes that have happened a 

                5 long time ago.  There have now been something slightly 

                6 more than, I think, 130 exonerations of people who had 

                7 previously been convicted, based on DNA analysis which is 

                8 now available that was not available at the time they 

                9 were tried.  And of those, more than 25 percent were 

               10 individuals who had been made to falsely confess to the 

               11 crimes they were convicted of.  

               12          What that tells us is that false confession is a 

               13 very significant contributor to the phenomenon of 

               14 convicting the innocent.  Doesn't tell us how frequently, 

               15 but it --

               16          MR. HOOD:  Objection, Your Honor.  This does not 

               17 appear to be responsive to the question.

               18          THE COURT:  Sustained.  

               19          BY MR. CRAVENS:  Q.  Can you describe for the 

               20 jury what some of the theories on which your body of work 

               21 is based on?  

               22      A.  The work principally comes from the study of 

               23 rational decisionmaking.  Interrogation is an influence 

               24 method that is designed to be applied to someone who is a 

               25 rational individual, who's not mentally ill, who's not 

               26 mentally impaired, not retarded.  It is a method that has 

               27 to do with manipulating a person's perception of their 

               28 current situation.  




                  
                  
                  
                                                                         12
                1          So it involves the research on the study of 

                2 social perception.  It is a method that involves 

                3 manipulating someone's expectations for what the future 

                4 will bring to them.  So it really studies, again, 

                5 rational choice.  And it's an area that also involves 

                6 dominance, the way in which an interrogator conducts him 

                7 or herself, the impact of these things, how all of this 

                8 affects an individual's decisionmaking coordinated to the 

                9 particular tactics that interrogators are taught to use 

               10 when they conduct an interrogation.  

               11      Q.  The studies you're talking about, is there any 

               12 particular crimes that are being investigated?

               13      A.  The studies that have been published 

               14 particularly will involve serious crimes: Murders, 

               15 rapes -- rapes and murder.  Very, very serious crimes 

               16 where there are huge penalties up for grabs.

               17      Q.  And so what about lesser crimes?

               18      A.  I don't know of any organized studies of lesser 

               19 crimes.  It's generally accepted in the field that the 

               20 bigger the issue, the more difficult it is to get 

               21 somebody to falsely confess.  And so for a lesser crime, 

               22 the consensus in the field would be that it's probably 

               23 easier to accomplish.

               24      Q.  Are these principals and studies, are they 

               25 reliable, accurate, and generally accepted in the 

               26 scientific community?

               27      A.  Yes.

               28      Q.  And have you participated in any court 




                  
                  
                  
                                                                         13
                1 proceedings that discuss the issue of admissibility based 

                2 on the Fry standard?

                3      A.  Yes.

                4          MR. HOOD:  Objection.  Relevance.

                5          THE COURT:  Sustained.  

                6          MR. CRAVENS:  Moment, Your Honor.  

                7          Your Honor, at this time we would like to offer 

                8 Doctor Ofshe as an expert in the area of interrogation 

                9 and false confessions.

               10          THE COURT:  Do you wish to voir dire?  

               11          MR. HOOD:  No, Your Honor.

               12          THE COURT:  All right.  Any objection?  

               13          MR. HOOD:  No, Your Honor.

               14          THE COURT:  All right.  We will recognize Doctor 

               15 Ofshe as an expert in that area, which means he'll be 

               16 permitted to give you opinion testimony in that regard.  

               17          Counsel?  

               18          MR. CRAVENS:  Thank you, Your Honor.  

               19          BY MR. CRAVENS:  Q.  Are there -- Doctor Ofshe, 

               20 are there recognized methods that train people how to do 

               21 interrogation?  

               22      A.  Yes.  Interrogation is not a naturally occurring 

               23 phenomenon.  It's not something that arises out of social 

               24 experience.  Interrogation is a method.  Interrogators, 

               25 police or private security interrogators, typically go to 

               26 schools to learn how to do interrogation.  It's a 

               27 collection of tactics and techniques they need to learn.  

               28 They need to learn how to conduct themselves as well as 




                  
                  
                  
                                                                         14
                1 what to direct at the suspect.  I see essentially the 

                2 same interrogation from Miami, Florida to Berel, Alaska 

                3 because the training is so uniform these days.

                4      Q.  And when you say a training, do interrogators 

                5 need to be trained?

                6      A.  They have to be; otherwise, we wouldn't observe 

                7 any coherence; and two, they wouldn't know what they were 

                8 doing.

                9      Q.  Does an interrogator need any set of special 

               10 skills?

               11      A.  An interrogator has to be trained how to be an 

               12 accomplished liar.  An interrogator needs to be able to 

               13 look someone in the eye and lie to them.  I'll explain 

               14 why in a few minutes.  But the interrogator has to learn 

               15 how to conduct their demeanor, how to exude -- appear to 

               16 exude absolute confidence in everything they're saying, 

               17 and how to deliver to someone a bold-faced lie without 

               18 giving any cues to the fact that they doubt what they're 

               19 saying or that they know what they're saying is 

               20 absolutely false.  An interrogator is a performer.  

               21          Those are some of the skills an interrogator 

               22 needs to acquire.

               23      Q.  Can you describe methods that are used for 

               24 training people in interrogation practices?

               25      A.  The usual method is going to school to get the 

               26 basics, and then on-the-job training, sometimes working 

               27 with someone who's been doing it longer or just 

               28 practicing what's been taught in school.  It's actually a 




                  
                  
                  
                                                                         15
                1 fairly simple process.

                2      Q.  Tell us how modern interrogation works.  

                3      A.  Modern interrogation?  The principals of it are, 

                4 one, to manipulate someone's perception of their current 

                5 situation, to manipulate and create particular 

                6 expectations about what will happen in the immediate and 

                7 long-run future and three, to introduce a motivator to 

                8 get them to be willing to say "I did it."  

                9          Interrogation is designed to get confessions 

               10 from people who know they committed the crime.  But a 

               11 poorly done interrogation, one that uses tactics that are 

               12 dangerous, can produce a false confession.

               13      Q.  And Doctor, could you explain to the jury what 

               14 the third degree is?

               15      A.  Third degree is a term of art that refers to 

               16 literally beating the confession out of a suspect.

               17      Q.  And is there anything significant that makes 

               18 modern interrogation different than the third degree?

               19      A.  Well, modern interrogation does not involve the 

               20 use of third degree.  There's a history as to how the 

               21 third degree went away.  And modern interrogation is 

               22 called psychological interrogation because it depends on 

               23 manipulating, the things I was talking about a minute 

               24 ago.  It's not done through the use of physical assault, 

               25 although it is possible to introduce threats.  But 

               26 physical assault is very rare these days, except in 

               27 Chicago.

               28      Q.  Are you familiar with the Reid method?




                  
                  
                  
                                                                         16
                1      A.  Very.

                2      Q.  And could you tell the jury how you know about 

                3 the Reid method?

                4      A.  The Reid organization, which is based in 

                5 Chicago, is the principal training organization for 

                6 training interrogators in the United States.  I believe 

                7 they claim to have trained, over the last 40 years or 

                8 so -- 

                9          MR. HOOD:  Objection, Your Honor, relevancy.

               10          THE COURT:  Sustained.

               11          BY MR. CRAVENS:  Q.  Are you familiar with a 

               12 book, Practical Aspects of Interrogation and Interview 

               13 (sic) by Zulawski and Wicklander?  

               14      A.  Yes.

               15      Q.  Who is Zulawski and Wicklander?  

               16      A.  I believe they're former trainers who went out 

               17 on their own, who started marketing a method that was 

               18 virtually identical to the Reid method.  They were sued 

               19 by the Reid organization for use of their copyright 

               20 materials without permission.  And I believe a settlement 

               21 was finally reached, so they were licensed to deliver the 

               22 training, which is essentially the Reid training.

               23      Q.  And is the Reid or the Wicklander Zulawski 

               24 method a type of psychological interrogation?

               25      A.  Yes.

               26      Q.  And how is it used to get information from 

               27 suspects?

               28      A.  By structuring things as I've described and then 




                  
                  
                  
                                                                         17
                1 carrying out the method.  It's -- it's just a set of 

                2 steps that have to be done in a particular order to 

                3 accomplish particular things.

                4      Q.  Okay.  Now, you had mentioned a little bit 

                5 earlier -- what is an evidence ploy?

                6      A.  An evidence ploy is a term that I use to refer 

                7 to the claim that the interrogator is in possession of 

                8 evidence that would link the person to the crime, if that 

                9 claim were true.  The reason I refer to it as a ploy is 

               10 that in the context of the interrogation, it's done for 

               11 influence purposes, so whether the claim itself is true 

               12 or false.  The reason the interrogator is introducing it 

               13 is to accomplish certain things, which I could explain if 

               14 I could go to the blackboard, the easel.

               15      Q.  Well, thank you.  Now, why don't we just get 

               16 to -- if you could explain to us how psychological 

               17 interrogation goes about getting a confession.  

               18      A.  That's when I need to get over there.

               19      Q.  There should be a pen right in front of you.  

               20      A.  There is.  I'll explain how modern interrogation 

               21 works, using a simple diagram.  

               22          This axis, running from zero to a hundred 

               23 percent, represents the confidence to get through the 

               24 experience that is about to start or is unfolding.  

               25 They're confident that their life is not gonna change if 

               26 they're up in this range.  This axis running from zero to 

               27 X refers to the length of time the interrogation takes.  

               28 It can be anywhere from an hour, hour and a half, to 15, 




                  
                  
                  
                                                                         18
                1 16 hours, 20 hours, any length of time.  

                2          Any modern interrogation can be broken into two 

                3 parts.  The break point comes when the person says or 

                4 acknowledges in some way, I did it.  I'm gonna refer to 

                5 that as an admission.  An admission is different than a 

                6 confession, as I use the terminology.  A confession is 

                7 the full and complete story of the person's involvement 

                8 in the crime, the details of it: When did it start, how 

                9 was it accomplished, what did you do with the loot, what 

               10 did you do with the murder weapon.  It's the full story.  

               11          In any interrogation, this part that I'll call 

               12 the preadmission phase, has to do with getting someone 

               13 who initially says, "I did not commit this crime" to get 

               14 to the point where they said, "I did it."  Interrogators 

               15 are trained that once they've gotten the person to that 

               16 point, to make the admission, then they set about 

               17 collecting the confession itself.  

               18          Interrogation is not really about this section 

               19 of it, going from here to here.  The important part of 

               20 interrogation is what happens from here to here, because 

               21 interrogators are trained to get a confession that will 

               22 link the person to the crime in a way that they can never 

               23 repudiate.  The object is to corroborate the "I did it" 

               24 statement by showing the person has the kind of knowledge 

               25 that would be acquired by somebody who was there, who was 

               26 a participant, and so on, so that they can reveal things 

               27 that make them, in fact, a witness to the crime, 

               28 physically present, that they know what they know because 




                  
                  
                  
                                                                         19
                1 they were there, not because somebody told them.  

                2          So getting the confession is what's important 

                3 because if a person committed a crime, and a 

                4 well-developed confession is elicited from the 

                5 individual, they're never going to be able to repudiate 

                6 that confession.  They may have told the police, for 

                7 example, where is the missing murder weapon, something 

                8 the police didn't know and couldn't have told them.  

                9          It's dramatic.  It's dramatic because it 

               10 involves the murder weapon.  It's important because it 

               11 involves telling the interrogator something the 

               12 interrogator couldn't have possibly have known, and it's 

               13 reasonable to believe the perpetrator of the crime would 

               14 have known.  

               15          So it can be something dramatic, like the murder 

               16 weapon, or it can be something sort of mundane: the room 

               17 in which the crime is committed, the physical description 

               18 of the room, the fact that there was a struggle and the 

               19 coffee table got broken, things that are unusual enough 

               20 that the person's not likely to guess them but reveal 

               21 that the person has the kind of knowledge you would 

               22 expect someone to have if they were there.  

               23          That's the confession.  That's what it's all 

               24 about, because the confession should link the person to 

               25 the crime.  If a false confession is being taken, then 

               26 usually what will happen is even if there's been 

               27 contamination, even if the person has been told a fair 

               28 amount about the crime so that every fact that they are 




                  
                  
                  
                                                                         20
                1 given that comes up in this part is no longer useful in 

                2 figuring out whether they know about the crime because 

                3 they were there or not, you can look at those things that 

                4 they should know that are asked about and see whether 

                5 they're getting those answers correct or incorrect.  

                6          In a false confession, what very often happens 

                7 is the interrogator asks about things that the suspect 

                8 cannot answer because the suspect doesn't know because 

                9 the suspect wasn't there.  So in the course of doing 

               10 that, what can actually occur is that a confession 

               11 statement can turn out to be evidence of a person's 

               12 innocence rather than evidence of their guilt because the 

               13 confession statement can show that this person doesn't 

               14 know something that the perpetrator should know.  

               15          But the dramatic part of an interrogation is 

               16 what happens from here to here.  This is the part that 

               17 you see on television when Sipowicz gets the confession.  

               18 That's when they cut for commercial, because this part is 

               19 relatively boring from here to this part.  

               20          Interrogators are trained in how to accomplish 

               21 the entire process.  It starts with the stage setting.  

               22 Typically, the interrogation will happen in a space that 

               23 the interrogator controls, where the interrogator feels 

               24 comfortable, and the person is aware of the authority of 

               25 the interrogator.  It could happen at a police station, 

               26 in a secure area, or it could happen in a restricted area 

               27 in a private setting, someplace that's been designated as 

               28 the place in which this will occur.  




                  
                  
                  
                                                                         21
                1          The interrogator will appear to be 

                2 authoritative.  The interrogator that will effect a 

                3 demeanor intended to convey absolute certainty in 

                4 everything the interrogator is saying, absolute certainty 

                5 in "I know you committed the crime," absolute certainty 

                6 that "I have this evidence," which I don't necessarily 

                7 have that links you to the crime.  That's a performance 

                8 component.  Those things alone will not produce 

                9 confession, usually true or false.  

               10          Some people, when simply accused of a crime, 

               11 say, "Okay, I did it."  There's really no interrogation 

               12 involved.  There's accusation and agreement that I did 

               13 it.  The interrogation really only begins when the person 

               14 says, "I didn't do this."  Now the game is on.  

               15          We can assume that anyone who allows themselves 

               16 to be interrogated in the beginning is confident that 

               17 they're gonna be okay at the end of the experience; 

               18 otherwise, they would simply refuse to allow the 

               19 interrogation because they would be better off.  

               20          Sometimes people who know -- 

               21          MR. HOOD:  Objection, Your Honor.  Can we go 

               22 back to question and answer, please?  

               23          THE COURT:  I think that's probably the way we 

               24 should do it.  Let's ask a question.

               25          BY MR. CRAVENS:  Q.  Doctor, when you get -- 

               26 when you get the -- when the person is -- when you first 

               27 start, you were talking about the person will either -- 

               28 when they go into there, they're confident they'll come 




                  
                  
                  
                                                                         22
                1 out of the interrogation okay.

                2      A.  Correct.  And that's equally true for someone 

                3 who committed the crime and someone who didn't commit the 

                4 crime.  Person who committed the crime may feel all they 

                5 have to do is continue to deny, and they'll be able to 

                6 out-maneuver the interrogator, and they're okay.  Person 

                7 who didn't commit the crime may very well feel "I don't 

                8 have anything to worry about because I didn't do anything 

                9 wrong so therefore, this conversation," which is all they 

               10 see it as being at that point, "is not a threat to me."

               11      Q.  And after they go into the interrogation, what 

               12 would happen after that?

               13      A.  Interrogation in this part involves three 

               14 different things, or two different things:  It involves 

               15 first driving the person's confidence that they're gonna 

               16 be okay from high down to practically zero.  Let's call 

               17 that creating a sense of hopelessness, that in my current 

               18 situation, I'm in a hopeless position; continuing to deny 

               19 is hopeless.  

               20          The other thing that happens is the interrogator 

               21 will typically lay foundations for a motivator, to get 

               22 the person to make -- to take that last, last step and 

               23 say, "I did it."  The foundation will get introduced 

               24 usually early on.  But as the interrogator delivers the 

               25 tactics that change someone's confidence, they're likely 

               26 to shift and start emphasizing the motivator because 

               27 they're getting close to the point which they think they 

               28 can elicit the "I did it" stage.




                  
                  
                  
                                                                         23
                1      Q.  Let me stop you there.  Can you explain what a 

                2 motivator is?

                3      A.  After I explain what an evidence ploy is.

                4      Q.  Okay.  Let's start with evidence ploy.  

                5      A.  Thank you.  In order to accomplish this change, 

                6 interrogators will introduce evidence ploys.  And 

                7 evidence ploys is a claim that I possess evidence that 

                8 links you to this crime.  Interrogators in America are 

                9 permitted to lie about the existence of evidence.  That's 

               10 not true everywhere in the world, but it is true in 

               11 America.  So interrogators are free to invent all sorts 

               12 of supposed evidence that links the person to the crime:  

               13 We have a videotape of you climbing out of the victim's 

               14 back window because there was a surveillance camera.  Or 

               15 I've actually seen -- there was a satellite flying 

               16 overhead, and we enhanced the photograph.  We have 

               17 biological evidence.  The hair sample you gave me at the 

               18 beginning of this interrogation, I sent down to our super 

               19 lab in the basement.  And an hour later, we get a DNA 

               20 match on that.  Impossible.  We have fingerprint 

               21 evidence.  We have eyewitness evidence.  We have other 

               22 damaging evidence which may or may not exist.  

               23          The interrogator introduces these things.  And 

               24 what would typically happen over the course of the 

               25 interrogation is having introduced it once, the 

               26 interrogator will introduce something else to overcome 

               27 resistance.  As the person keeps saying "I didn't do it, 

               28 I didn't do it," or the person says "I have an alibi," 




                  
                  
                  
                                                                         24
                1 and the interrogator will say, "Oh, no.  You're trying to 

                2 tell me you were with your girlfriend three Thursdays 

                3 ago?  We already talked to her, and she told us that you 

                4 weren't with her that night."

                5          The interrogator may have just made that -- for 

                6 example in the example, did just make that up.  The 

                7 interrogator is free to make up whatever they want.  The 

                8 object is to overcome resistance and make the person feel 

                9 hopeless, feel that no matter what I do, my fate is 

               10 determined.  If I committed the crime, no matter what I 

               11 do, this interrogator is telling me I have so much 

               12 evidence, I don't even need your confession, that I'm 

               13 history.  

               14          The problem is that this same tactic directed at 

               15 someone who did not commit the crime can produce the same 

               16 state of hopelessness.  Being told that we have this 

               17 evidence and that evidence and this evidence and this 

               18 other thing, all of which convinces me, and this is 

               19 typical, it's not a matter of whether you committed this 

               20 crime; I know you committed the crime.  I'm only 

               21 interested in why you committed the crime.  Trying to, as 

               22 a tactical maneuver, to try to foreclose the person's 

               23 denial by saying this isn't on the table any longer.  We 

               24 know you did it.  For the person who committed the crime, 

               25 that can be very powerful.  For the person who did not 

               26 commit the crime, it can contribute to anxiety, 

               27 hopelessness, a sense that they are being railroaded or a 

               28 sense that their world has just turned to mud, and 




                  
                  
                  
                                                                         25
                1 everything is falling apart because the interrogator is 

                2 so good at looking at them and sincerely telling them a 

                3 pack of lies.  And the interrogate really appears to 

                4 believe it, and people are influenced by the demeanor of 

                5 the person who delivers the message.  

                6          So the person starts down this slope.  The 

                7 object is to get the individual here because if you think 

                8 about it, in the beginning, someone accused you of having 

                9 committed a crime.  So to say "Yes, I did it," is a huge 

               10 step.  It makes a tremendous difference.  But if you've 

               11 been made to feel hopeless, it doesn't make a lot of 

               12 difference whether you admit or not because the 

               13 interrogator really doesn't need your confession.  The 

               14 marginal cost of saying "I did it" has gone from great to 

               15 practically nothing.  It just doesn't make any 

               16 difference.  That's setting up an individual to get a 

               17 confession, but they still have to be motivated.  The 

               18 motivators -- 

               19      Q.  Doctor, let me just stop you there.  What 

               20 happens after these evidence ploys are introduced?

               21      A.  Then we can talk about the introduction of the 

               22 motivators, which tends to start early on, tends to 

               23 develop and tends to become used to overcome resistance.  

               24 And in studying the actual step-by-step process of an 

               25 interrogation, one can see the motivator being used to 

               26 move the person, threaten the person, offer the person 

               27 leniency sometimes in order to get them to take the last 

               28 step because they're already feeling hopeless.  So the 




                  
                  
                  
                                                                         26
                1 motivator can start off with some foundational 

                2 suggestions to introduce concepts and introduce ideas, 

                3 then will tend to get more and more emphasis as the 

                4 interrogation goes on.  

                5          Motivators can run from what I'll call low-end 

                6 motivators to high-end psychologically coercive 

                7 motivators.  A psychologically coercive motivator, as 

                8 I'll use the term, refers to trying to motivate a person 

                9 to say "I did it" by threatening them with maximum harm 

               10 or offering them -- and/or offering them leniency if they 

               11 cooperate.  It's psychologically coercive because the 

               12 motivator is threat upon an offer of leniency.  

               13          But that doesn't occur in every interrogation.  

               14 It only occurs in bad interrogations, because it is 

               15 controversial, impermissible and highly dangerous.  In 

               16 order to get a false confession, I have never seen an -- 

               17          MR. HOOD:  Objection, Your Honor.

               18          THE COURT:  What's the objection?  

               19          MR. HOOD:  Narrative, also nonresponsive.  Move 

               20 to strike the last portion.

               21          THE COURT:  The last portion will remain, but it 

               22 is nonresponsive.  

               23          Let's ask another question, please.  

               24          MR. CRAVENS:  Okay.

               25          BY MR. CRAVENS:  Q.  And how are these 

               26 motivators used in -- in connection with the evidence 

               27 ploys?  

               28      A.  The motivators, or if we think as motivators on 




                  
                  
                  
                                                                         27
                1 a scale of low to high, motivators would be statements 

                2 designed to get the person to go along with it because 

                3 it's the right thing to do.  Admit you did this.  We know 

                4 you did it.  We have all of this evidence that shows that 

                5 you did it.  I've treated you decently.  I haven't yelled 

                6 at you.  I haven't screamed at you.  I haven't insulted 

                7 you.  Be a decent person.  Be a man about it.  Admit you 

                8 did what we know you did.  Show yourself to be a better 

                9 person than I will otherwise think of you or the 

               10 community will think of you if you don't admit it.  Just 

               11 kind of -- make yourself out to be, even though you've 

               12 done this crime, make yourself out to be a more 

               13 attractive, if you will, person than I'm otherwise gonna 

               14 think of you if you don't admit it.  

               15          That will sometimes work to permit a true 

               16 confession from someone who knows they committed the 

               17 crime, who feels hopeless.  And if the interrogator has 

               18 developed rapport, that can be the grease that gets them 

               19 to step across the line.  

               20          Why?  Why not?  Well, as to producing a false 

               21 confession, the false confession in this situation is one 

               22 in which the person is saying, I didn't do this.  This 

               23 evidence may be there, my situation may be hopeless, but 

               24 I know I didn't do this.  That person is desperate.  That 

               25 person is not gonna do the right thing by confessing when 

               26 the right thing is maintaining their innocence.  

               27          If low-end motivators don't work and the 

               28 interrogator is being orderly, then what he'll do is 




                  
                  
                  
                                                                         28
                1 start to talk about the system, try to get the person to 

                2 think about the future, think about their situation in 

                3 relation to all this overwhelming evidence that they 

                4 committed the crime and start to make statements designed 

                5 to think about what's going to happen down the road, such 

                6 as now's the time for you to show remorse, without 

                7 telling you why now is the time to do it, because the 

                8 strategy calls for trying to get the person to reason.  I 

                9 will be better off in the future if I show remorse now.  

               10 Or now is the time to get your side of the story out.  

               11 The idea being the interrogator wants the person to think 

               12 about the future, to reason that if I confess, I'm gonna 

               13 get better treatment, lenient treatment later on.  

               14          What the interrogator is attempting to do is 

               15 create a cognitive structure, a set of beliefs in which 

               16 confession is linked to minimum punishment, and 

               17 continuing to deny is linked to maximum punishment.  

               18 That's what the interrogator wants the person to think 

               19 about the future, because if that's the case, it becomes 

               20 rational to confess.  If you know you're gonna be 

               21 arrested or you believe you're gone be arrested, you 

               22 believe you'll be punished, and if you believe you can 

               23 minimize the punishment by falsely confessing, you just 

               24 may do it.  

               25          But there's a problem.  The problem is the more 

               26 obvious these links are, the more inappropriate, 

               27 improper, and dangerous the interrogation is.  Because 

               28 these are the links that create false confessions, and 




                  
                  
                  
                                                                         29
                1 these are the links that interrogators, if they're 

                2 well-trained, know full well that they should not use 

                3 because they are too dangerous.  But some interrogators 

                4 will use them nevertheless.  If the interrogator is 

                5 willing to go higher -- 

                6          MR. HOOD:  Objection, Your Honor.  Can we again 

                7 stick to question-and-answer?  

                8          THE COURT:  Sustained.  Ask a question, please.

                9          BY MR. CRAVENS:  Q.  Doctor Ofshe, if those -- 

               10 can I term it mid-level motivators -- don't work, what 

               11 does the interrogator typically do next?  

               12      A.  If an interrogator continues to continue on, 

               13 they now move up into the range of psychologically 

               14 coercive where they can use two different strategies for 

               15 getting this message across.  One strategy that 

               16 interrogators use is to make it blatant: If you continue 

               17 to deny that you were involved in this crime, you're 

               18 gonna be identified as the shooter, and you're gonna get 

               19 charged with capital murder, and this is a death penalty 

               20 state, and you're going to go to the gas chamber.  

               21          Whereas if this was something that happened by 

               22 accident, or it was self-defense, or it was something 

               23 like that, if you confess, they'll often introduce a 

               24 scenario for the crime that takes the crime and makes it 

               25 far less serious and, therefore, worthy of a far less 

               26 serious punishment.  

               27          If you agree that it was just self-defense, well 

               28 then maybe you can go home at the end of the day.  One 




                  
                  
                  
                                                                         30
                1 doesn't have to be an attorney to recognize that 

                2 confessing to first-degree murder is gonna produce a 

                3 bigger punishment than admitting to having killed someone 

                4 in self-defense, even if you don't know self-defense is a 

                5 legal excuse for having done the killing.  

                6          So the object here is to make very blatant 

                7 connections between these two choices and these two 

                8 outcomes.  The other way to do it is through a series of 

                9 suggestions which are more subtle but are designed to 

               10 communicate this overall picture.  

               11          Typically when that happens, when the 

               12 interrogator is using the more subtle suggestion method, 

               13 if one goes through the record of the interrogation, one 

               14 can find introductory statements introducing a concept, 

               15 beginning to lay out the associations and then more and 

               16 more obvious.  If the person continues to resist, there 

               17 can be threats of harm and offers of leniency occurring 

               18 later in the interrogation.  So sometimes they may get to 

               19 the point where they're being fully blatant at the end or 

               20 close to blatant, but they've been laying foundation and 

               21 returning to this idea for the last hour over and over 

               22 and over again.  

               23          The object is to get the person to recognize:  

               24 Like it or not, I'm gonna be punished; like it or not, 

               25 the police are gonna be called; like it or not, I'm gonna 

               26 lose my job if I don't cooperate; whether I committed the 

               27 crime or not, that's what's gonna happen to me if I don't 

               28 cooperate.  Whereas the interrogator may be telling them 




                  
                  
                  
                                                                         31
                1 if I do cooperate, I will get very lenient treatment.  

                2 Under that circumstance, it becomes rational for an 

                3 innocent person to elect to say, "I did it" when they 

                4 didn't.

                5      Q.  Doctor Ofshe, you mentioned that using evidence 

                6 ploys is dangerous.  What did you mean by that?

                7      A.  Using evidence ploys is only dangerous in 

                8 conjunction with the introduction of psychological 

                9 coercion.  The introduction of the evidence ploys alone 

               10 can be very stressful.  For someone who didn't commit the 

               11 crime, being told that there's a great deal of evidence 

               12 that you committed the crime, is not gonna make you feel 

               13 good.  It's also not gonna make you confess.  So the 

               14 evidence ploys set up a circumstance whereby if something 

               15 else is present, then the undesired result can obtain, 

               16 the undesired result being eliciting a confession from 

               17 someone who is innocent.

               18      Q.  Doctor, and how can a motivator be dangerous?  

               19      A.  If the motivator gets into the psychologically 

               20 coercive range, it transforms the decision situation so 

               21 that it looks to the person as if the only way I'm gonna 

               22 save my life, the only way I'm gonna save my job, the 

               23 only way I'm gonna save the life as I know it is by 

               24 confessing.  

               25          And if the punishment is made so minimal, hey, 

               26 if this was just self-defense, you can go home at the end 

               27 of the day.  Or if you admit you did this, we'll take 

               28 care of you, and everything will be fine.  So then the 




                  
                  
                  
                                                                         32
                1 cost of making the admission appears to be so little, and 

                2 the risk of continuing to tell the truth so great that 

                3 someone who is upset, not thinking clearly, thinking only 

                4 in terms of the things that the interrogator has put on 

                5 the table, not thinking about how the world really works, 

                6 not thinking about their options -- interrogators have 

                7 been trying to focus them on what the interrogator is 

                8 interested in.  That person can make a very bad choice 

                9 and say "I did it" thinking it's the best choice for them 

               10 to make.  

               11      Q.  Doctor, could you explain -- okay.  Let's say 

               12 we're at the mid level on your chart where somebody 

               13 decides to make an admission.  Could you explain how 

               14 that -- how they get there, or how are they -- how do 

               15 they go over the edge?

               16      A.  They go over the edge because they decide either 

               17 that I'm caught, if they know they committed the crime, 

               18 or they decide I better go along with this to minimize 

               19 the punishment I'm gonna get, even though I don't deserve 

               20 it.  

               21      Q.  What about the high -- the high motivator like 

               22 you have in your chart?  In that case, what would be 

               23 pushing them over the edge?

               24      A.  Same thing, the analysis that it is the rational 

               25 thing for me to do.  That presumes the person is thinking 

               26 only about those things the interrogator put on the 

               27 table.  It's like that problem with the dots.  You put 

               28 nine dots in a square, and you have to connect them with 




                  
                  
                  
                                                                         33
                1 four lines, I think, or three lines, some number of 

                2 lines.  If you try to just connect the dots, you can't do 

                3 it.  You have to go outside the box and then come back 

                4 down and then connect them, and then you can do it.  

                5          As long as the person thinks in terms of what 

                6 the interrogator puts on the table, then the logic of 

                7 confessing, truly or falsely, follows.  It just ends up 

                8 that way.  The person has to go outside the box and 

                9 recognize this person is misrepresenting the way in which 

               10 the world works: I know that this evidence doesn't exist, 

               11 and I'm not going to admit to something that I didn't do.  

               12          But in the context of an anxiety-provoking, 

               13 stressful interrogation, people don't necessarily think 

               14 all that clearly.  That's part of the interrogation 

               15 method, to maximize a person's anxiety, talk about the 

               16 things that will be anxiety-provoking for them.  That 

               17 helps muddy their thinking and, therefore, make them 

               18 easier to manipulate.  

               19      Q.  Doctor, if an interrogator is poorly trained, 

               20 how would that go about in this model?  Where can a 

               21 poorly trained interrogator make mistakes that could 

               22 possibly lead to false confession?

               23      A.  An interrogator can be so poorly trained, so 

               24 ignorant of the dangers of what they're doing that 

               25 they've never been told that using these methods will 

               26 produce false confessions.  They could be that ignorant.  

               27 Interrogation school takes three to five days, and then 

               28 you go practice it.  An interrogator is not somebody with 




                  
                  
                  
                                                                         34
                1 a Ph.D in police science and has studied interrogation 

                2 for years.  These interrogators, they're somebody who 

                3 can't get a job doing anything else, and they wind up 

                4 going to the school, learn a method, and they run it off 

                5 mechanically.  They've been told not to think about the 

                6 innocence or guilt of the person.  

                7          Once they start an interrogation, it's all about 

                8 producing the result.  They're like those people selling 

                9 a timeshare condo.  They've got a script, they know what 

               10 objections they're gonna get, and they know how to 

               11 overcome the objections.  They want to make the sale.  

               12 They don't think about whether the person can afford the 

               13 timeshare condo, whether it's good for them.  They've got 

               14 a job, and that's to get the confession.  And I think 

               15 that's all they ever think about.

               16      Q.  Doctor, in the training that you know about, in 

               17 these methods, are the people actually trained to detect 

               18 whether or not a confession is true?

               19      A.  No.  That's one of the big problems with 

               20 interrogation training in America.  It would be easy to 

               21 train interrogators to detect false confessions as they 

               22 are taking them.  But interrogation training programs do 

               23 not do that.  The interrogator, therefore, doesn't think 

               24 about it.  The interrogator thinks only about what 

               25 they've been told, and they just run it out.

               26      Q.  Is -- do you know of any safeguards that are 

               27 built into these interrogation programs to prevent a 

               28 false confession?




                  
                  
                  
                                                                         35
                1      A.  Into the training program?  None of the ones 

                2 that I'm familiar with have any safeguards built into 

                3 them.  The Reid method, for example, used to tell people 

                4 that what we teach cannot produce false confessions, 

                5 until the social science community started criticizing 

                6 their methods, along with the supreme court, so severely 

                7 in fact that they finally started backing off.  They 

                8 haven't changed what they teach, only what they say about 

                9 it.

               10          MR. HOOD:  Objection.  Nonresponsive and 

               11 narrative.

               12          THE COURT:  Sustained.

               13          MR. HOOD:  Move to strike the last portion 

               14 regarding the supreme court, Your Honor.

               15          THE COURT:  Granted.  Please disregard the last 

               16 portion of the witness' answer.  

               17          BY MR. CRAVENS:  Q.  Now, in these interrogation 

               18 methods, Doctor, do they teach people to be able to tell 

               19 whether somebody is telling the truth or telling a lie?  

               20      A.  They teach them to believe that they can do 

               21 that.  They teach them to believe that they can read 

               22 someone's demeanor they've never met before and determine 

               23 whether or not the person's obvious distress is because 

               24 they have committed the crime, or they teach them to 

               25 interpret stress, resignation, dejection as evidence that 

               26 they committed the crime for their own purposes.  But 

               27 they don't teach them to discriminate between the 

               28 distress and dejection and hopelessness of someone who's 




                  
                  
                  
                                                                         36
                1 being falsely accused from someone who is being properly 

                2 accused.  And in fact, no one can do that.  

                3          There is a lot of research on the detection of 

                4 deception in demeanor.  And the position of the 

                5 scientific community is it can't be done, or at least 

                6 there's no way to do it now.  You cannot simply read 

                7 someone's demeanor on a subtle point like this, 

                8 especially if you don't know them, just from the obvious 

                9 signs.  You can't tell whether it is upset that their 

               10 life is falling apart, or it is upset they're caught for 

               11 something they did.

               12      Q.  Doctor, I would like to read you some statements 

               13 that an interrogator might say to a suspect.  After I 

               14 read them to you, could you please explain what you think 

               15 those statements are designed to do?

               16          MR. HOOD:  Objection.  Your Honor, may we 

               17 approach?  

               18          THE COURT:  Yes.  

               19          (Whereupon a bench conference was held off the 

               20 record.)

               21          THE COURT:  The objection is sustained.  

               22          MR. CRAVENS:  No further questions at this time, 

               23 Your Honor.

               24          THE COURT:  Thank you.  Is there to be 

               25 cross-examination?  

               26          MR. HOOD:  Yes, there is, Your Honor.  

               27          THE COURT:  You may proceed.

               28                   CROSS EXAMINATION BY MR. HOOD




                  
                  
                  
                                                                         37
                1      Q.  Someone who can't get a job doing something 

                2 else.  Comparing people who do interrogations to 

                3 timeshare condo sellers.  You don't like people who do 

                4 interrogations, do you?

                5      A.  Not true.  I don't dislike them.  I don't know 

                6 many of them, to have a personal opinion.  But the 

                7 qualifications to get a job that then get you trained as 

                8 an interrogator are minimal.

                9      Q.  Someone who can't get a job doing something 

               10 else?  

               11      A.  Could be.

               12      Q.  Is that a negative statement?

               13      A.  Yep.  Could be.

               14      Q.  You don't think you have a slight bias?

               15      A.  I think -- 

               16          MR. CRAVENS:  Objection.  Calls for legal 

               17 conclusion.

               18          THE COURT:  The objection is overruled.  

               19          Professor, answer the question.

               20          THE WITNESS:  I think that, given my experience 

               21 of working all over this country involved in cases in 

               22 which innocent people's lives are at risk, and 

               23 interrogators have cavalierly ignored their rights, 

               24 protections and are willing to extract from them 

               25 confessions that even an idiot would recognize to be a 

               26 false confession, and then go ahead and allow them to be 

               27 prosecuted on it, and that gives me a very low opinion of 

               28 people who would do that.  




                  
                  
                  
                                                                         38
                1          Not all interrogators fit into that category by 

                2 any means.  Those who would be willing to do that, I 

                3 think, are reprehensible, the lowest of the low.

                4          BY MR. HOOD:  Q.  Someone who can't get a job 

                5 doing something else, the lowest of the low, they're 

                6 people who interrogate?

                7      A.  The people who do it wrong, I think that's 

                8 probably true.

                9      Q.  Do you prefer professor or doctor?

               10      A.  Doesn't make any difference.

               11      Q.  Are interrogations useful?

               12      A.  Sure.

               13      Q.  To be encouraged?

               14      A.  Absolutely.  It's a very important tool.  If it 

               15 were done right, it would save money.  It would produce 

               16 reliable results.  It would shorten the length of the 

               17 amount of energy that has to go into solving a particular 

               18 crime and getting a just resolution.  Interrogation is 

               19 quite valuable.  I have no problems with interrogation 

               20 properly done.

               21      Q.  Even though they're by people who can't get a 

               22 job doing anything else?

               23      A.  It's the ones who -- who are willing to use 

               24 illegitimate, dangerous methods and who know how 

               25 illegitimate and dangerous they are who are the truly 

               26 despicable.

               27      Q.  Even interrogators that use, as you call them, 

               28 despicable methods -- 




                  
                  
                  
                                                                         39
                1      A.  What about it?  

                2      Q.  -- get true confessions?

                3      A.  Sometimes you can coerce a true statement.  You 

                4 can coerce a false statement.  If you can't tell the 

                5 difference, you're gonna cause a lot of damage over your 

                6 career.

                7      Q.  Okay.  So even coercive confessions result in 

                8 true confessions?

                9      A.  You can coerce a true confession from someone 

               10 who committed the crime, and you can coerce a false 

               11 confession from someone who did not commit the crime.

               12      Q.  So the answer is yes?  

               13      A.  You can coerce a true confession from someone 

               14 who committed the crime, and you can coerce a false 

               15 confession from someone who did not.

               16      Q.  You've testified a hundred and ninety-four times 

               17 in the United States?

               18      A.  Correct.

               19      Q.  How many cases have you worked on in the last 

               20 three years?

               21      A.  I don't know.  I don't keep track of it.

               22      Q.  Can you estimate?

               23      A.  Well, I've done -- well, I've testified on 

               24 interrogation a total of a hundred and ninety-four times 

               25 in fifteen years at least.  I've worked on lots of cases 

               26 in addition to that.  More than half the cases that are 

               27 presented to me, when I kept exact track of the record, 

               28 more than half the cases presented to me, I've rejected 




                  
                  
                  
                                                                         40
                1 because there was no reason for me to be there.

                2      Q.  Did you understand my question?

                3      A.  Yes.

                4          MR. HOOD:  Can I have it read back, Your Honor?

                5          THE COURT:  Certainly.  

                6          (Whereupon the record was read.)

                7          THE COURT:  How about the question before that.

                8          (Whereupon the record was read.)

                9          THE WITNESS:  I'm estimating.

               10          BY MR. HOOD:  Q.  How many?

               11      A.  I'm estimating that in fifteen years, I've 

               12 testified a hundred and ninety-four times.  And I know 

               13 that when I used to keep track of what happened with 

               14 every file that was presented to me, I rejected more than 

               15 half the files that I was presented with.  So 

               16 therefore -- 

               17      Q.  Excuse me, Professor.  My question was not how 

               18 many you rejected or how many you didn't.  I asked 

               19 nothing about that.  

               20          My question was, how many cases have you worked 

               21 on in the last three years?  Do you understand the 

               22 question?  

               23      A.  I'm trying to estimate it and explain how I'm 

               24 trying to estimate it.

               25      Q.  Can you just estimate?

               26      A.  Maybe fifty, maybe more.

               27      Q.  If you testified a hundred and ninety-four 

               28 times, you've had to work on more than fifty cases.  




                  
                  
                  
                                                                         41
                1      A.  You said the last three years, I believe.

                2      Q.  Right.  So you've only worked on about fifty 

                3 cases in the last three years?

                4      A.  That's an estimate based on the principals I was 

                5 trying to lay out.

                6      Q.  You get paid when you work on cases, for the 

                7 most part?

                8      A.  Yes.

                9      Q.  You have to pay taxes on your income, correct?

               10      A.  Yes.

               11      Q.  You look at your tax return, correct?

               12      A.  Wrong.

               13      Q.  You sign, under penalty of perjury, your tax 

               14 return without looking at it?

               15      A.  That's right.

               16      Q.  Do you know how much money you make?

               17      A.  Nope.

               18      Q.  You don't know how much you get paid from 

               19 Berkeley?

               20      A.  I know how much salary I get paid from Berkeley.

               21      Q.  Then you have income from your testifying in 

               22 cases like this; correct?

               23      A.  Correct.

               24      Q.  You Don't know how much money you made last 

               25 year?

               26      A.  I have income from this.  I have income from 

               27 various businesses that I own.  I have income from 

               28 substantial amounts of property that I own.  I have 




                  
                  
                  
                                                                         42
                1 numerous sources of income, including fees for consulting 

                2 for movies and this and that, all sorts of stuff.  So I 

                3 have multiple sources of income; that's why I don't pay 

                4 any attention to it; that's why I turn it over to an 

                5 accountant, and that's why I sign my tax returns.  I've 

                6 tried to look at it.  It's so complicated, I don't 

                7 understand it.

                8      Q.  You have no idea how much money you made from 

                9 this side business of yours?

               10      A.  Correct.

               11          MR. CRAVENS:  Objection.  Vague.  You know, 

               12 vague, and characterization of side business.

               13          THE COURT:  The objection is overruled.  

               14          Next question, please.

               15          BY MR. HOOD:  Q.  Approximately how many hours 

               16 did you work on these cases?  

               17      A.  I don't know.

               18      Q.  Five to ten hours each time?

               19      A.  I have no idea because sometimes I get a file, I 

               20 look at it, I review what's in the file, and I 

               21 immediately report back to the attorney that I have no 

               22 interest in being involved in it, and you don't need 

               23 this, or you don't want this, and that ends it.  

               24 Sometimes I put a great deal of work into something.  

               25 Sometimes I do it for very little pay.  So all of those 

               26 variables are changing constantly.

               27      Q.  Of the hundred and'94 cases that you testified 

               28 in, how many of them were for the defense?




                  
                  
                  
                                                                         43
                1      A.  Almost all of them.

                2      Q.  How much do you get paid an hour?

                3      A.  Depends on where I'm working.

                4      Q.  This case.  

                5      A.  This case?  $250 an hour.

                6      Q.  Travel time -- 

                7      A.  That's right.

                8      Q.  -- At $250 an hour?

                9      A.  Correct.

               10      Q.  Driving down from Berkeley, you get paid roughly 

               11 $400 just to drive down here?

               12      A.  Depends on how much traffic there is.

               13      Q.  Prep time -- 

               14      A.  Correct.

               15      Q.  -- $250 an hour?

               16      A.  Correct.

               17      Q.  How much is your bill gonna be in this case?

               18      A.  I've already been paid, I believe, about 

               19 $10,000.

               20      Q.  How much is still owing up to this point?  

               21 Obviously we don't know how long you're gonna be on the 

               22 stand.  

               23      A.  Probably another $2000.

               24      Q.  Profitable?

               25      A.  Profitable?  

               26      Q.  It's good money.  

               27      A.  And I'm worth every penny of it.  Of course it's 

               28 profitable.  I have expenses, but they're not great.  




                  
                  
                  
                                                                         44
                1 It's not a manufacturing operation.

                2      Q.  Of all the times you testified, or almost all 

                3 the times you testified, profitably, it was for the 

                4 defense?

                5      A.  Almost all the time I've been asked to go into 

                6 court has been for the defense.  When I am asked to go 

                7 into court for the prosecution, I'm happy to do that as 

                8 well.

                9      Q.  You haven't been asked?

               10      A.  I have.

               11      Q.  Have you testified in court -- 

               12      A.  For the prosecution?  

               13      Q.  -- Of the hundred and ninety-four times, less 

               14 than five?

               15      A.  Probably.  It's a hundred percent of the times 

               16 I've been asked.

               17      Q.  So you get thousands and thousands and thousands 

               18 and thousands from the defense?

               19      A.  I get thousands and thousands -- 

               20          MR. CRAVENS:  Objection, Your Honor.

               21          THE WITNESS:  -- and thousands of dollars 

               22 from --

               23          THE COURT:  Excuse me for a minute, when there's 

               24 an objection made that needs to be ruled upon.

               25          MR. CRAVENS:  Objection.  Irrelevant.

               26          THE COURT:  Overruled.

               27          THE WITNESS:  I get thousands and thousands and 

               28 thousands of dollars.  I put my time where I want to be 




                  
                  
                  
                                                                         45
                1 involved in.  I reject cases where I don't think I should 

                2 be, and I've never been in front of a jury for the 

                3 purpose of deceiving them about anything.

                4          BY MR. HOOD:  Q.  So you do get thousands and 

                5 thousands and thousands of dollars from the defense?  

                6      A.  Correct.  No, actually I get it from courts and 

                7 occasionally from a private client.  Almost everything 

                8 that I do is court appointed.

                9      Q.  Now, you do agree that confessions are useful 

               10 tools?

               11      A.  Yes.

               12      Q.  And evidence ploys are appropriate?

               13      A.  Absolutely, in this country.

               14      Q.  I'm asking for your opinion.  

               15      A.  My opinion?  

               16      Q.  Yes.  

               17      A.  I think evidence ploys are a very valuable tool.  

               18 I think there's a viable debate about whether or not 

               19 police should be permitted to lie, but I recognize that 

               20 evidence ploys are absolutely a powerful tool.  And 

               21 properly controlled, I don't think they would be 

               22 dangerous.

               23      Q.  Okay.  And I notice some of the articles you've 

               24 written.  I've looked at your CV, which is eighteen pages 

               25 long, your resume.  I think on the Web, I noticed some of 

               26 the articles you've written have been responding to your 

               27 critics.  

               28      A.  One.




                  
                  
                  
                                                                         46
                1      Q.  You do have critics who disagree with your 

                2 methodology or conclusions?

                3      A.  One.  One critic.

                4      Q.  Just one?

                5      A.  Yeah.

                6      Q.  Was your article, I don't remember the full 

                7 title, Forest Through the Trees, or something like that?

                8      A.  Yeah.  That was a response to Paul Casell, the 

                9 one critic.

               10      Q.  Only one person has ever disagreed with you?

               11      A.  Only one person has ever published anything that 

               12 attempted to be critical.  That was Paul Casell who is 

               13 not an academic but who is just a former prosecutor.

               14      Q.  Just a prosecutor?

               15      A.  Just a former prosecutor.

               16      Q.  You don't like prosecutors either?

               17      A.  I don't like persecutors.  I have no problems 

               18 with prosecutors.

               19      Q.  What is a persecutor?

               20      A.  Someone who attempts to railroad someone who is 

               21 innocent in a situation in which anyone looking at the 

               22 evidence should recognize that this person is innocent, 

               23 as in the Central Park jogger case where the DNA did not 

               24 match to any of the kids who were convicted 13 years ago, 

               25 and the prosecutors knew it, and the interrogations were 

               26 coerced, and the kids were reporting that they were 

               27 beaten by the police in order to get them to confess, and 

               28 the prosecutors turned a blind eye to that.  Now the New 




                  
                  
                  
                                                                         47
                1 York D.A.'s office, in reviewing everything, is 

                2 indicating they never should have prosecuted these 

                3 people.  That's the kind of questionable prosecutor I'm 

                4 concerned about.  

                5      Q.  Do you have a bias towards me?

                6      A.  I don't know you.  I don't know what you know 

                7 about this case.

                8      Q.  Do you have a bias towards me?

                9      A.  No.

               10      Q.  Do you have an agenda here?

               11      A.  No.

               12      Q.  Let's take a look at your chart.  Can you see 

               13 that from where you're sitting, or do you need to get up?

               14      A.  Tell me what you want to ask about, and I can 

               15 probably remember what's on the chart.

               16      Q.  I'm going to be pointing to the chart.  So 

               17 again, can you see the chart?

               18      A.  No, I can't see the chart.

               19      Q.  Let me see if I can move it so all will be able 

               20 to see.  

               21          THE COURT:  I apologize for the crummy 

               22 courtroom.  That's the best we've got.

               23          BY MR. HOOD:  Q.  I think you're going to have 

               24 to stand up, I'm afraid.  Okay.  This is your -- would 

               25 matrix be a good way to describe this diagram?  

               26      A.  I don't think so.

               27      Q.  Okay.  Give me a word, please.  

               28      A.  Diagram.




                  
                  
                  
                                                                         48
                1      Q.  In this diagram, you have this arch here.  

                2      A.  Correct.

                3      Q.  Okay.  What is going on up here?

                4      A.  The interrogator is starting out dealing with 

                5 someone who is confident, that they can allow the 

                6 interrogation to go forward and is beginning to introduce 

                7 alleged evidence that supposedly links them to the crime, 

                8 what I call evidence ploys. 

                9      Q.  You indicated that on occasion, that at this 

               10 point, some people confess.  Just at the introduction of 

               11 you're accused of a crime, I think you mentioned earlier 

               12 some people confess.  

               13      A.  If someone confesses before they're 

               14 interrogated, they confess to the mere accusation, that 

               15 happens.

               16      Q.  In your review of interrogations, it doesn't 

               17 happen that often?

               18      A.  I don't know about how often.  The cases I see 

               19 would be ones that didn't happen.  They involve the 

               20 full-blown interrogation; otherwise, the attorney 

               21 wouldn't take the trouble to contact me.

               22      Q.  I'm going to ask you to listen to my questions.  

               23 If you don't understand my questions, please tell me you 

               24 don't understand the question.  Please respond only to my 

               25 questions.  Is that okay?

               26      A.  Sure.

               27      Q.  Okay.  Now, in confessions you reviewed, and 

               28 you've reviewed some that you have accepted and some 




                  
                  
                  
                                                                         49
                1 you've rejected, very few confess early on; correct?

                2      A.  Correct.

                3      Q.  Thank you.  Now, what is going on here?  The 

                4 people are denying the crime?  That's common?

                5      A.  Yeah.  That's true.

                6      Q.  People who are guilty and people who are 

                7 innocent deny the crime?

                8      A.  Sure.

                9      Q.  In fact, they can go on denying the crime, both 

               10 true and false confessions, for a period of time through 

               11 evidence ploys, through motivators, correct?

               12      A.  Not every interrogation produces a confession.

               13      Q.  Is that correct?

               14      A.  Correct.

               15      Q.  In these confessions that you have reviewed, 

               16 when we start to get down here to the crossing point, you 

               17 start to see admissions.  Do you often see mitigation 

               18 where the confessor -- let me back up.  

               19          Do interrogators often themselves use a ploy of 

               20 mitigating the crime?  I think you talked about 

               21 self-defense or -- 

               22      A.  The interrogators?  Part of interrogation 

               23 training is often to introduce a theme.  The theme is 

               24 intended to either offer a somewhat more acceptable 

               25 motivation for having committed the crime, such as the 

               26 reason you stole the food was your family is starving.  

               27 Doesn't change the fact the person stole the food, but 

               28 explains why the person did it, and -- 




                  
                  
                  
                                                                         50
                1      Q.  And interrogators?

                2      A.  Can I finish?  

                3          -- whereas other themes are intended to change 

                4 the facts of the crime or change the seriousness of the 

                5 crime.  So by taking what is apparently and obviously a 

                6 premeditated murder scene with all the trappings of that, 

                7 looks like someone broke in, looks like there was an 

                8 attempted robbery, looks like someone woke up in the 

                9 household, looks like the person smashed that person to 

               10 death in the course of the burglary, that looks like a 

               11 premeditated murder scene.  

               12          Interrogator might take, for one reason or 

               13 another, the premeditated murder scene and impose on it a 

               14 scenario for the crime which changes the legal meaning of 

               15 the crime from premeditated murder to an act of 

               16 self-defense, the object being as they're taught to do 

               17 this, to elicit from someone an admission to a crime or 

               18 elicit from someone the admission of yes, I pulled the 

               19 trigger.  But under the circumstances, that would make 

               20 pulling the trigger far less legally serious.  

               21          And then if the interrogator is carrying out the 

               22 strategy entirely, after having gained the admission, 

               23 turning around and attacking the various story that they 

               24 just told, because it doesn't fit the facts of the crime, 

               25 and they're trying to get a true confession.  But the 

               26 object is to elicit an admission by offering a story that 

               27 if the interrogator were to accept that, as the 

               28 interrogate suggested he will, will result in very 




                  
                  
                  
                                                                         51
                1 little, if any, punishment.

                2      Q.  Why don't you take a seat.  I don't think I'll 

                3 be using the diagram anymore.  

                4          So from what you just said, let's see if I can 

                5 summarize it briefly.  An interrogator in premeditated 

                6 murder, he knows it's premeditated, will use a ploy and 

                7 give it a lesser crime to make the person comfortable in 

                8 confessing to a lesser crime, like self-defense or no 

                9 premeditation.

               10      A.  If the interrogator is willing to introduce 

               11 psychologically coercive motivators, they'll elect to 

               12 threaten maximum harm and offer leniency in one form or 

               13 another.  One way to communicate the leniency is by 

               14 suggesting a scenario for the crime which, if the person 

               15 admits to it, naturally leads to little or no punishment.

               16      Q.  Again, to summarize, one of the ploys used is to 

               17 indicate a lesser crime to get the person to accept that 

               18 lesser; correct?

               19      A.  That's not an evidence ploy.

               20      Q.  What is that?

               21      A.  That's a motivational tactic.

               22      Q.  Okay.  One motivational tactic is to use a 

               23 lesser crime than what the investigator believes, to get 

               24 the person to start to accept -- to start to admit to it; 

               25 correct?

               26      A.  To recharacterize the crime in a way that 

               27 carries a less serious punishment in order to get the 

               28 person to believe they can confess to this crime and 




                  
                  
                  
                                                                         52
                1 receive little or no punishment; that is correct.

                2      Q.  And you see in the cases you've reviewed where 

                3 the person will accept that reduction, in other words oh 

                4 you're right it, was self-defense or you're right, it 

                5 wasn't premeditated or you're right, it was because my 

                6 family needed food; correct?

                7      A.  People will often accept scenarios for the crime 

                8 as part of their confession.

                9      Q.  So the answer is yes?

               10      A.  The answer is people will often accept scenarios 

               11 for the crime as part of their confession.

               12      Q.  Will people often blame others?

               13      A.  Not in my experience.

               14      Q.  Would you agree that frequently truthful 

               15 confessions the confessor does not confess to every fact 

               16 that occurred?

               17      A.  That can happen.

               18      Q.  Okay.  In fact, those are your words.  

               19      A.  You're probably talking about the example of 

               20 Richard Allen Davis being willing to confess to 

               21 kidnapping and killing Polly Klaas but resisting 

               22 confessing to having raped her before he killed her as an 

               23 example of the kind of particularly -- particularly 

               24 heinous element to a crime that people will be unwilling 

               25 to confess to, even though they'll confess to other 

               26 parts.

               27      Q.  Actually, I was referring to your testimony in 

               28 the State versus Adams.  




                  
                  
                  
                                                                         53
                1      A.  Which case?  

                2      Q.  State versus Adams.  

                3      A.  Which Adams?  

                4      Q.  I just have the cite for you.  I don't have the 

                5 first name.  You were being questioned by, I assume, a 

                6 assistant district attorney, Mr. Traverso (phonetic).  

                7 Ring a bell?

                8      A.  I think that Adams is a case in. -- 

                9      Q.  I don't need the facts of the case.  I'm just 

               10 asking you.  

               11      A.  You have the facts wrong.  I'm just trying to 

               12 help you.  Adams is a case in Alaska, in Berel, Alaska.  

               13 And Mr. Traverso was the defense attorney.

               14      Q.  Did Mr. Traverso ask you, Doctor Ofshe: Are you 

               15 aware of any truthful confessions in criminal cases where 

               16 the person did not confess to every fact that occurred?  

               17 And you answered: That happens with some frequency.  

               18      A.  Okay.  I'll adopt that.  Doesn't contradict what 

               19 I said.

               20      Q.  Okay.  So it happens with some frequency that a 

               21 true confessor does not admit to all the facts, correct?

               22      A.  Could be.

               23      Q.  Correct?

               24      A.  Correct.  It happens with some frequency.

               25      Q.  How many interrogations have you yourself 

               26 conducted?

               27      A.  One.

               28      Q.  One?




                  
                  
                  
                                                                         54
                1      A.  Correct.

                2      Q.  How many officers have you trained on how to 

                3 conduct interrogations?

                4      A.  I've lectured to a couple of hundred police.

                5      Q.  How many have you trained?

                6      A.  Trained?  I don't do training.

                7      Q.  You're on a mission regarding false confessions, 

                8 and you don't train officers how to do it properly?

                9          THE COURT:  I'll sustain my own objection of 

               10 argumentative.

               11          BY MR. HOOD:  Q.  You do not train officers how 

               12 to conduct what you would consider proper interrogations?  

               13      A.  I'm perfectly willing to do that, agreed to do 

               14 that with ATF, but they never followed up on it.  Anytime 

               15 anyone wants me to do that, I would be happy to do it.  

               16 If you would like me to do it for the Santa Clara County 

               17 police, I would be happy to do it.

               18      Q.  You've never done it?

               19      A.  No, because no one has ever asked me, except the 

               20 ATF guy, and he never followed through.

               21      Q.  You yourself have never received training on how 

               22 to conduct interrogation?

               23      A.  That's correct.  I study the methods.  I have no 

               24 interest in becoming an interrogator.

               25      Q.  Of the cases you've studied, the vast majority 

               26 involve murder suspects?

               27      A.  That's probably fair to say.

               28      Q.  In fact, of the three studies you've cited 




                  
                  
                  
                                                                         55
                1 earlier, two were studies only of murder suspects?

                2      A.  I don't know the range of crimes that produce a 

                3 capital punishment in the Biddot and Ratliff study, but 

                4 probably most were murders in that study.

                5      Q.  And your own article, Missing the Forest for the 

                6 Trees -- is that enough of a title for you to remember 

                7 which one I'm talking about?

                8      A.  I know what you're talking about.

                9      Q.  You wrote that with your colleague, Richard Leo?

               10      A.  Correct.

               11      Q.  He was your graduate student?  

               12      A.  He was.  Not at the time we wrote article, but 

               13 at one time in his life.  

               14      Q.  And your own studies have affected your own 

               15 opinion, correct, in testifying about false confessions?

               16      A.  My studies are the basis for having an opinion.

               17      Q.  Okay.  You indicated three principal studies, 

               18 but your own studies as well?

               19      A.  Sure.

               20      Q.  Okay.  And then isn't it true that in virtually 

               21 all the cases that you have looked at, they involve 

               22 murder?

               23      A.  No, not virtually all.

               24      Q.  Isn't it true that in virtually all, there was 

               25 pressure on the police to solve the crime?

               26      A.  No.

               27      Q.  Isn't it true that in virtually all the cases 

               28 you've looked at, you were unable to -- police were 




                  
                  
                  
                                                                         56
                1 unable to identify suspects with physical evidence?

                2          MR. CRAVENS:  Objection.  Vague as to "virtually 

                3 all".

                4          THE COURT:  The objection is overruled.  

                5          Professor, do you remember the question?  

                6          THE WITNESS:  No.

                7          THE COURT:  Could we have that read back?  

                8          MR. HOOD:  I'll restate it, your Honor.  

                9          THE COURT:  Very well.

               10          BY MR. HOOD:  Q.  In virtually all the cases you 

               11 looked at, wasn't it true that the police were unable to 

               12 identify suspects with physical evidence?  

               13      A.  Virtually all?  I don't understand.  Is that 

               14 ninety percent?  Ninety-five percent?  Ninety-nine 

               15 percent?  What are you talking about?  

               16      Q.  Let's use a majority.  

               17      A.  Majority?  That might be true.

               18      Q.  Okay.  And isn't it true in the majority of 

               19 cases you've studied that the officers were relying on 

               20 hunches and gut instincts and not actual evidence from 

               21 the crime?

               22      A.  Oh, yeah.

               23      Q.  Isn't it true that in -- 

               24      A.  In the innocent person false confession cases, 

               25 yes.  I've studied lots of cases involving interrogations 

               26 of someone who committed the crime.  It wouldn't be true 

               27 in those.

               28      Q.  Isn't it true in the majority of cases, there 




                  
                  
                  
                                                                         57
                1 was little to no credible evidence against the suspect 

                2 who confessed?

                3      A.  In innocent person false confession cases, 

                4 that's true.  In cases of true confession, it's not true.

                5      Q.  Is this a correct statement of your opinion:  In 

                6 virtually all of the cases we have studied, the crime 

                7 under investigation was murder; the police were under 

                8 enormous pressure to solve it; they had not been able to 

                9 identify a suspect based on solid detective work or 

               10 forensic evidence, but instead relied on pseudo 

               11 scientific interpretations of behavior, gut hunches 

               12 and/or the suspect's relationship to the victim; there 

               13 existed little or no credible evidence against the 

               14 suspect either before or after the confession; and police 

               15 resorted to inappropriate and illegal interrogation 

               16 methods such as the maximization, minimization techniques 

               17 to elicit the false statement?

               18      A.  That would be true because we would be talking 

               19 about false confession cases as opposed to mere 

               20 interrogations.

               21      Q.  So that's the common theme you found in false 

               22 confession statements?

               23      A.  That's what we found.

               24      Q.  The statement I read is the third sentence from 

               25 your article, Missing the Forest for the Trees?

               26      A.  It could very well be.

               27      Q.  It is, isn't it?

               28      A.  I don't remember every sentence I've written.  




                  
                  
                  
                                                                         58
                1 It sounds appropriate.  It would refer to false 

                2 confession cases.  And in that context, I have no problem 

                3 with it.

                4      Q.  Okay.  And Mr. Leo conducted a study regarding 

                5 confessions and interrogations in California?

                6      A.  Did his doctoral dissertation on that.

                7      Q.  He was your grad student?

                8      A.  Correct.

                9      Q.  And in that, he went and observed -- is it a 

               10 hundred and eighty-nine or a hundred and ninety-four?

               11      A.  Eighty-four.

               12      Q.  A hundred and eighty-four interrogations.  Isn't 

               13 it true in not one of those did he find a false 

               14 confession?

               15      A.  He wasn't looking for false confessions.  He was 

               16 coding the tactics present.  He never inquired as to 

               17 whether or not a particular confession, if obtained, 

               18 turned out to be true or false.  It wasn't his study on 

               19 that subject.

               20      Q.  Isn't it true that he did not find a single one 

               21 of those confessions?

               22      A.  He didn't find anything that he wasn't looking 

               23 for.  He didn't find evidence of space aliens.  He didn't 

               24 find evidence or trait of someone being a traitor or a 

               25 terrorist, either.  He wasn't looking for any of those 

               26 things.  

               27          THE COURT:  Mr. Hood, would this be an 

               28 appropriate time for our morning recess?  




                  
                  
                  
                                                                         59
                1          MR. HOOD:  Yes, it would, Your Honor.

                2          THE COURT:  Ladies and gentlemen, please 

                3 remember the admonition.  With that, it will be about 15 

                4 minutes.  I'll call for you at just about five of the 

                5 hour in the jury is assembly room.  Thank you.  We're in 

                6 recess.  

                7          (Whereupon a recess was taken.)

                8          THE COURT:  All right.  The 12 jurors and the 

                9 alternate have rejoined us.  Still present are the 

               10 defendant, all three attorneys.  

               11          I think we were partially through 

               12 cross-examination of Doctor Ofshe who is still on the 

               13 stand.  Mr. Hood, you may continue.

               14          MR. HOOD:  Thank you, Your Honor.  

               15          BY MR. HOOD:  Q.  Now, you've indicated that 

               16 interrogators have to be accomplished liars; is that 

               17 accurate?  

               18      A.  Correct.

               19      Q.  And they have to be able to deliver bold-face 

               20 lies?

               21      A.  Correct.

               22      Q.  And you referred to -- I was gonna say correct 

               23 me if I'm wrong, but I'm sure you will.  Is evidence 

               24 ploys where the bold-face lies come in?

               25      A.  Correct.

               26      Q.  And you -- 

               27      A.  At least -- at least at that point.

               28      Q.  Okay.  I just want to understand your 




                  
                  
                  
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                1 terminology.  

                2          When do the -- lying about the evidence, what 

                3 are those called?  

                4      A.  Evidence ploys.  

                5      Q.  Okay, evidence ploys.  

                6      A.  Which can be either true or false.

                7      Q.  Okay.  And in reviewing confessions, I mean, you 

                8 talked quite a bit about these lies about the evidence; 

                9 correct?

               10      A.  I talked about the fact that in this country, 

               11 police can lie about evidence.

               12      Q.  Okay.  In fact, when you review -- these 

               13 bold-faced lies about the evidence can be very coercive?

               14      A.  No.

               15      Q.  Okay.  What effect does a bold-faced lie have on 

               16 a confession?  

               17      A.  It contributes to leading the person to believe 

               18 their situation is hopeless.

               19      Q.  So in reviewing confessions, you looked to see 

               20 if there were any bold-faced lies?

               21      A.  No.

               22      Q.  Do they concern you?

               23      A.  No.

               24      Q.  Are they relevant?

               25      A.  Yes.

               26      Q.  How are they relevant?

               27      A.  They're relevant because they contribute to 

               28 convincing someone their situation is hopeless, that in 




                  
                  
                  
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                1 the actual analysis of whether or not somebody committed 

                2 the crime or not, they're extremely important.  But in 

                3 terms of analyzing the tactics of the interrogation, I 

                4 often don't know whether the claims to evidence are 

                5 factually accurate or entirely invented when I read the 

                6 transcript.

                7      Q.  So it's not relevant to you to consider whether 

                8 the evidence ploys are based upon bold-faced lies or, in 

                9 fact, accurate?

               10      A.  Not for the purpose of analyzing what got a 

               11 person to say I did it.  The evidence ploys can be very 

               12 important in terms of trying to assess, to weigh the 

               13 confession and classify it as either true or false 

               14 confession.  Then knowing what the real evidence is quite 

               15 important.

               16      Q.  Okay.  Now, these evidence ploys are used every 

               17 day, every city, every county, every jurisdiction, every 

               18 state?

               19      A.  To the best of my knowledge, they are.

               20      Q.  Common, appropriate tactic to use?

               21      A.  Appropriate in this country.

               22      Q.  Do you think they're appropriate?  

               23      A.  I think they are a useful tool in interrogation.  

               24 I can easily see why they contribute to getting 

               25 confessions and, without proper safeguards, they can set 

               26 up a circumstance under which they can elicit a false 

               27 confession.  Properly -- properly used, I don't think 

               28 they're dangerous at all.




                  
                  
                  
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                1      Q.  In fact, you would, if you had ever been asked 

                2 to train officers, you would train officers on how to use 

                3 evidence ploy?

                4      A.  It's perfectly legal.  As far as I'm concerned, 

                5 police officers can do whatever is legal.

                6      Q.  You agree that interrogations are an appropriate 

                7 useful tool?

                8      A.  Yes.

                9      Q.  And getting confessions is an appropriate 

               10 endeavor?

               11      A.  Absolutely.

               12      Q.  And using an evidence ploy to get that 

               13 confession would, in fact, be appropriate?

               14      A.  Correct.

               15      Q.  And if that evidence ploy is false, that may 

               16 contribute more likely than not to a false confession as 

               17 opposed to when the evidence ploy is true?

               18      A.  I don't know if I agree with the "more likely 

               19 than not."  The whole process of making someone feel 

               20 hopeless sets up the circumstances under which a deal 

               21 offer may be accepted by someone who is innocent.

               22      Q.  Let me ask you this: In the majority of cases 

               23 that you reviewed, cases you determined were false 

               24 confessions by however means, did you find that the 

               25 evidence ploys in them, in those that were used, were in 

               26 fact false?

               27      A.  In the false confessions cases?  

               28      Q.  Yes.  




                  
                  
                  
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                1      A.  I cannot specifically think of one example in 

                2 which the evidence ploys were even mistaken.  It's 

                3 possible to be mistaken.  One can say I have eyewitness 

                4 testimony, but the police actually have it, but the 

                5 eyewitness in fact is wrong.  So that's mistaken.  I 

                6 can't think of a particular example of even a mistaken 

                7 use of evidence ploys.  By and large, or my recollection 

                8 is that the evidence ploys that I've tended to see have 

                9 been misinterpretations of evidence or boldly false in 

               10 false confession cases.

               11      Q.  So the evidence ploys used in the majority of 

               12 your false confession cases are either mistaken 

               13 assumptions by the officers or actually bold-face lies?  

               14      A.  That's been my experience.

               15      Q.  Now what -- you indicated factors you're looking 

               16 for.  One of the things you look at to see if there's a 

               17 false confession is if the confessor relates things that 

               18 the investigator didn't know.  Is that accurate?

               19      A.  That would be evidence that you should weigh the 

               20 confession strongly in the direction of the person's 

               21 guilt.

               22      Q.  So if the confessor -- 

               23      A.  Accurate things that the interrogator didn't 

               24 know.

               25      Q.  So for example, if the person's -- there's a 

               26 dead body, the confessor says the weapon's over under 

               27 that rock.  Officers go find it, the weapon is under the 

               28 rock and -- 




                  
                  
                  
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                1      A.  That's a big one.

                2      Q.  -- the officers didn't know about it?

                3      A.  Correct.

                4      Q.  Okay.  The type of weapon used: I used a hammer.  

                5 The officers didn't know it was --

                6      A.  Could be very important, sure.

                7      Q.  I worked with somebody else.  I had an 

                8 accomplice that the officers didn't know about:  Again, 

                9 these are -- 

               10      A.  That's not objective proof.  That's a claim 

               11 which needs to be evaluated.  So if they're -- if the 

               12 officers don't know, you've analyzed the crime scene and 

               13 there was no evidence there were two people, there's 

               14 nothing objective that allows anyone to say whether it 

               15 was one or two people present except if the other 

               16 person's identified and can tell a story of the crime 

               17 that matches the evidence of the crime and proved that 

               18 they were there.  But not based on the physical facts of 

               19 the crime by your -- by the very question you asked.

               20      Q.  What about if the officers don't know why the 

               21 crime occurred, and the confessor tells the motive?

               22      A.  Again, it's not objectively provable, 

               23 necessarily.  It's not the same thing as looking at crime 

               24 scene facts and being able to tell the interrogator 

               25 something about the physical facts of the crime that they 

               26 didn't know.  It's -- two people are in a room, they're 

               27 having a discussion.  There's a fight.  One of them winds 

               28 up dead.  The survivor says, We were talking about the -- 




                  
                  
                  
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                1 in Chicago, we were talking about last night's baseball 

                2 game, and we got into a fight, and I killed him.  The 

                3 people think they were discussing the distribution of 

                4 poppy seeds.  How can you tell?  It's a story.  May be 

                5 true.  May not be true.  It's not capable of objectivity.

                6      Q.  It's a -- so motive is nothing in a confession?

                7      A.  Motive?  It can be a component.  It might be a 

                8 component you could eventually evaluate in terms of 

                9 whether it makes sense or not.  Someone talks about 

               10 having stolen to feed their family, and they have no 

               11 family, that tells you something about the validity of 

               12 the motive that they've offered.  It's just another fact, 

               13 but it's not the same thing as telling someone something 

               14 that's objectively provable based on the crime scene 

               15 evidence.  It's just a different sort of thing.

               16      Q.  In the interrogation, is it proper for the 

               17 interrogator to be highly confident, present that image?

               18      A.  That's what they're trained to do.

               19      Q.  Proper to wear down the confidence of the 

               20 person?

               21      A.  That's what they're permitted to do.

               22      Q.  My question is -- you have answered with what 

               23 they're trained to do.  My question is, in your opinion, 

               24 is it proper?  

               25      A.  In my opinion, it is proper to do whatever the 

               26 law permits.

               27      Q.  Each item, I'd like to know your opinion.  

               28          Is it proper for the interrogator, in your 




                  
                  
                  
                                                                         66
                1 opinion, to present very outwardly confident demeanor in 

                2 the interrogation?  

                3      A.  In my opinion, that is a permissible thing to do 

                4 and, therefore, I think it's proper.

                5      Q.  Proper to, in your opinion, wear down their 

                6 confidence?

                7      A.  My opinion, that is permissible to do and, 

                8 therefore, I think it's proper.

                9      Q.  Proper to use evidence ploys?

               10      A.  In my opinion, it is proper to use evidence 

               11 ploys because it's permissible.

               12      Q.  Proper to explain the consequences of the crime?

               13      A.  Possibly, but also very possibly not proper.

               14      Q.  Proper to use low-end motivators?

               15      A.  My opinion, it's legally permissible and, 

               16 therefore, it's proper.

               17      Q.  Examples:  It's the right thing for you to do to 

               18 confess.  Is that is a proper low-end motivator?

               19      A.  As far as can I tell, it is.

               20      Q.  We have evidence against you.  Proper low-end 

               21 motivator?

               22      A.  It's not a low-end motivator.

               23      Q.  What is it?

               24      A.  It's an evidence ploy.

               25      Q.  We've already indicated that those are proper to 

               26 use.  

               27      A.  Correct.

               28      Q.  Now, you indicated when they reach this edge 




                  
                  
                  
                                                                         67
                1 where the two lines intersect, you've used the 

                2 expression, if I can adopt it, they've gone over the 

                3 edge.  

                4      A.  I don't believe I said gone over the edge in 

                5 relation to that.

                6      Q.  Okay.  

                7      A.  If they're going up the scale is where I might 

                8 have used the term over the edge.

                9      Q.  Okay.  I would like a term that talks to the 

               10 point where it's time -- which they've reached the 

               11 conclusion to either truly confess truly or confess 

               12 falsely.  

               13      A.  The point at which they make the admission "I 

               14 did it."

               15      Q.  There's two reasons why they reach that point, 

               16 in your opinion?  

               17      A.  There are two variables that contribute to it, I 

               18 believe.

               19      Q.  Okay.  Well, I'm not talking about the 

               20 variables.  Let me see if I can give you a question.  

               21          They reach that point and at that point, they 

               22 either confess falsely or they, I believe I'm using your 

               23 words, realize that I am caught, and they confess 

               24 truthfully.  Is that accurate?  

               25      A.  The process is different for someone who knows 

               26 they committed the crime versus someone who knows they 

               27 did not commit the crime.  For a person who knows they 

               28 committed the crime, believing that they're caught, 




                  
                  
                  
                                                                         68
                1 believing that it makes no difference that they committed 

                2 the crime, that person can be motivated to say, Okay, I 

                3 did it through the introduction of permissible and 

                4 trivial motivators such as common, to do the right thing.  

                5 I know you did it.  Be a man about it.  Admit you did it, 

                6 and so on.  It's the presentation itself.  

                7          As I said previously, those kinds of inducements 

                8 are not gonna produce a false confession.  In order to 

                9 get a false confession, it's my belief, based on the work 

               10 I've done, it's necessary for a normal individual to 

               11 introduce a psychologically coercive motivator, one that 

               12 connects increased punishment with denial and offers 

               13 leniency if you confess, even though you didn't do it.  

               14          MR. HOOD:  Your Honor, may I have the question 

               15 read back?  

               16          THE COURT:  Yes.

               17          (Whereupon the record was read.)

               18          THE COURT:  Next question, please.  

               19          BY MR. HOOD:  Q.  Now, whether it's a truthful 

               20 confession or a false confession, they reach a point and 

               21 start confessing?  

               22      A.  When there's a confession, there's a point that 

               23 precedes giving of the confession.  That will be true 

               24 when it's a true confession or a false confession.  

               25      Q.  And it is a build up of everything that's 

               26 happened before; correct?

               27      A.  All of it contributes to it.

               28      Q.  Okay.  And would you agree that what immediately 




                  
                  
                  
                                                                         69
                1 precedes the confession is an important, relevant factor 

                2 for you to look at: what did the officer do right before 

                3 this person reached that point?

                4      A.  Not necessarily.

                5      Q.  Did the officer hit them, use a false evidence 

                6 ploy?

                7      A.  No.  In fact, I wouldn't agree to that because 

                8 it often happens that a deal offer is put on the table 

                9 early on, or at some point the innocent person still 

               10 doesn't want to confess to something they didn't do.  

               11 They still persist in trying to get the interrogator to 

               12 understand they didn't commit the crime.  

               13          When they realize that's hopeless, they may then 

               14 decide to accept the deal, and that may be separated in 

               15 time from the point at which the deal is first put on the 

               16 table.  As long as the deal is still on the table, it's 

               17 there.  It's sitting there.  But they don't necessarily 

               18 want to take it because they know they're innocent.  So 

               19 they may resist for a while and then decide, I guess I 

               20 better do that because I'm never gonna convince him I 

               21 didn't do the crime.  If I don't confess, dire 

               22 consequences will follow.  That can be separated in time 

               23 by ten minutes, fifteen minutes, a half hour, an hour.  

               24 Once the deal's on the table, it sits there.

               25      Q.  Okay.  So you're indicating that what happens 

               26 immediately preceding where the person reaches that point 

               27 is not relevant?

               28      A.  I'm not saying that.  I'm saying it varies.  You 




                  
                  
                  
                                                                         70
                1 have to look at the particular interrogation.  You have 

                2 to look at when the deal is put on the table.  You have 

                3 to look at this.  You have to look at that.  I would be 

                4 happy to do it for you.  

                5      Q.  When you review confessions, you always pay 

                6 close attention to what immediately preceded the 

                7 confession?

                8      A.  Sometimes what immediately precedes the 

                9 confession and a direct deal offer.  Sometimes it's 

               10 separated in time.

               11      Q.  But you do look at what immediately preceded the 

               12 confession?

               13      A.  I look at everything.

               14      Q.  Now, you indicated that it was easy to detect 

               15 false confessions.  

               16      A.  I think so.

               17      Q.  Okay.  And the factors you would consider is 

               18 does the defendant's confession fit the crime?  

               19      A.  Does the defendant describe things about the 

               20 crime that have not been introduced by the interrogator, 

               21 which indicate that they have actual knowledge of the 

               22 crime.  So, for example, if one were to say, How did you 

               23 accomplish this crime, and the person goes, I really 

               24 don't know how; I'll say I did it, but I don't know how 

               25 it happened, you got a problem.  

               26          If, on the other hand, you say, How did you 

               27 accomplish this crime, and the person says, Well, I made 

               28 sure to put some tape over the lock on the door to the 




                  
                  
                  
                                                                         71
                1 store so that I could get back into the store, and I 

                2 disabled the burglar alarm system in anticipation of 

                3 that, and then tape is found over the door lock, and the 

                4 burglar alarm system connected to that door has been 

                5 short-wired so that it won't show an opening, and the 

                6 person volunteers all that about the method, that's very 

                7 powerful.  

                8          But if the person committed the burglary, they 

                9 should know that, and an interrogator is actually getting 

               10 a good confession, is going to get that information.

               11      Q.  Would you agree that laying out the evidence, 

               12 the actual evidence against the person right in front of 

               13 their face can be a very effective interrogation tool?

               14      A.  In making someone feel hopeless, absolutely.  

               15 Whether the evidence is true or false, that experience 

               16 can make somebody feel hopeless.

               17      Q.  Is it an effective tool in interrogation?  

               18      A.  In doing what?  I don't understand your 

               19 question.

               20      Q.  Would you agree that laying out the evidence in 

               21 front of the person is an effective tool in interrogation 

               22 to reach a confession?

               23      A.  If properly done, it is a significant component.  

               24 It can contribute to getting a confession.  Improperly 

               25 done, it can actually damage the outcome.

               26      Q.  Okay.  In fact, wouldn't you even agree that 

               27 laying out the evidence is, per se, not an interrogation?

               28      A.  I don't understand your context.  I'm accustomed 




                  
                  
                  
                                                                         72
                1 to seeing that as part of interrogation.  Maybe it 

                2 happens other places, but that's not part of my 

                3 experience.

                4      Q.  Is laying out the physical evidence what you 

                5 would consider an overly coercive tactic?

                6      A.  I wouldn't consider it coercive in the least.  

                7      Q.  Would you agree with this statement: You don't 

                8 have to interrogate him.  Sometimes you can just lay out 

                9 the evidence and say, This is what we know, and that 

               10 person may at that point confess.  If the evidence is 

               11 really strong, that can be a very effective tactic, and 

               12 it's really not an interrogation.  

               13          Do you agree with that statement?  

               14      A.  Sure.  That's the example that I give.  If you 

               15 accuse somebody, and they immediately -- they never say I 

               16 didn't do it, you don't have an interrogation.  

               17 Interrogation, as I said, begins when the person denies 

               18 that they committed it.  So if someone has committed the 

               19 crime, and they know they're caught, it doesn't 

               20 necessarily take a big interrogation.

               21      Q.  So laying out the evidence.  That's exactly what 

               22 I'm talking about.  Laying out the physical evidence in 

               23 front of the person is a very effective tactic, and it's 

               24 really not an interrogation.  Would you agree with that 

               25 statement?

               26      A.  If that's all that's done, and no motivational 

               27 tactic is introduced, and no promises of leniency are 

               28 introduced, and no threats of harm are introduced, and 




                  
                  
                  
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                1 all you're doing is saying, Hey, we have a videotape of 

                2 you leaving the bank, your mask fell off, that's your 

                3 face, bingo, you're caught, if that's all that's done, 

                4 then it's really not much of an interrogation.  

                5          If in the particular session that you're looking 

                6 at there's also the use of a complicated motivator, 

                7 particularly one that introduces psychological coercion, 

                8 now you're talking about a real interrogation and not the 

                9 example you gave.  

               10          So are we talking about one in which that and 

               11 only that is done, or are we talking about one in which 

               12 that plus other things are done?  

               13      Q.  Regardless.  Regardless of what you just said, 

               14 wouldn't you agree that laying out the physical evidence 

               15 in front of the person accused of a crime is an effective 

               16 interrogation tactic?

               17      A.  It is an effective tactic in getting someone to 

               18 feel helpless.

               19      Q.  Which leads to their confession?

               20      A.  If someone has committed the crime and they are 

               21 convinced that they're caught, it sometimes takes very 

               22 little in addition to get them to say okay, I did it.  If 

               23 someone is confronted with evidence that appears to link 

               24 them to the crime, or so it's maintained, and they're 

               25 made to feel hopeless, it's been my experience that you 

               26 also have to experience a psychologically coercive 

               27 motivator in order to get them to confess.

               28      Q.  Confess truly or falsely?




                  
                  
                  
                                                                         74
                1      A.  Falsely.

                2      Q.  But for the true confession?

                3      A.  The true confession?  If someone knows they 

                4 committed the crime, if they know that the evidence that 

                5 you have got links them to the crime, as I said, it often 

                6 doesn't take very much more than that to get them to 

                7 confess.

                8          MR. HOOD:  Nothing further.

                9          THE COURT:  Is there to be redirect?  

               10          MR. CRAVENS:  Moment, Your Honor.  

               11                REDIRECT EXAMINATION BY MR. CRAVENS

               12      Q.  Doctor Ofshe, for the present, does anybody owe 

               13 you money on cases you've already completed?

               14      A.  Oh, sure.

               15      Q.  And Doctor Ofshe, do any -- as far as your 

               16 government -- you do work for public defenders' offices?

               17      A.  All over the country.

               18      Q.  And do any of those type entities owe you money 

               19 on their cases?

               20      A.  Oh, yeah.

               21      Q.  And what -- what do you -- what do you typically 

               22 charge a public defender's office to take a case?  

               23          MR. HOOD:  Objection.  Relevance.

               24          THE COURT:  Sustained.  

               25          BY MR. CRAVENS:  Q.  Would you take a case for 

               26 free?  

               27      A.  Sure.

               28      Q.  Have you ever taken a case for free?  




                  
                  
                  
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                1          MR. HOOD:  Objection.  Relevance.

                2          THE COURT:  Sustained.  

                3          BY MR. CRAVENS:  Q.  Have you reviewed the 

                4 material that's put out by the WZ people?  

                5          MR. HOOD:  Objection.  Exceeds the scope of 

                6 cross.

                7          THE COURT:  Sustained.  

                8          BY MR. CRAVENS:  Q.  Doctor Ofshe, you made a 

                9 lot of testimony about interrogations.  Is there any 

               10 difference on how an interrogation would work between a 

               11 murder than it would work, say, for a theft crime?  

               12      A.  My experience -- 

               13          MR. HOOD:  Objection.  This has been asked and 

               14 answered on direct.

               15          THE COURT:  Overruled.  

               16          THE WITNESS:  My experience, the model that I 

               17 laid out is the model that's used to interrogate, to 

               18 overcome resistance from someone.  So I've seen that used 

               19 for murders.  I've seen it used for thefts.  I've seen it 

               20 used on children, and I've seen it used on witnesses who 

               21 won't say what the particular detective wants them to 

               22 say.  That is the model that I see for overcoming 

               23 resistance and gaining compliance, gaining agreement, 

               24 gaining admissions, gaining confessions, and sometimes 

               25 gaining testimony.  

               26          MR. CRAVENS:  No further questions.

               27          THE COURT:  Anything further?  

               28          MR. HOOD:  Nothing further.




                  
                  
                  
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                1          THE COURT:  Ladies and gentlemen, do you have 

                2 any questions for Doctor Ofshe?  None noted.  

                3          Thank you, Doctor.  You're free to go.  

                4          THE WITNESS:  Thank you, Your Honor.

                5 

                6 

                7 

                8 

                9 

               10 

               11 

               12 

               13 

               14 

               15 

               16 

               17 

               18 

               19 

               20 

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               22 

               23 

               24 

               25 

               26 

               27 

               28 





                  
                  
                  
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                1 STATE OF CALIFORNIA      )
                                           )
                2 COUNTY OF SANTA CLARA    )
                       
                3      
                       
                4 

                5      

                6      I, Michelle Caldwell, CSR 9045, in and for the State 

                7 of California, County of Santa Clara, do hereby certify 

                8 that I was appointed by the Court to act as court 

                9 reporter in the above-entitled action; that I reported 

               10 the same into typewriting as appears by the foregoing 

               11 partial transcription; that said transcript is a full, 

               12 true and correct statement of the proceedings to the best 

               13 of my ability.

               14      

               15      

               16      Dated this 28th day of November, 2003.

               17      

               18      

               19      
                       
               20      ____________________________________
                       Michelle Caldwell
               21      Certified Shorthand Reporter No. 9045
                       
               22      
                       
               23      
                       
               24      
                       
               25      
                       
               26      
                       
               27      
                       
               28      



                  
                  
                  
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