1 1 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 2 IN AND FOR THE COUNTY OF MENDOCINO 3 4 HONORABLE HENRY K. NELSON COURTROOM H 5 PEOPLE OF THE STATE OF CALIFORNIA, 6 PLAINTIFF, 7 VS 8 JOHANN S. SCHMIDT, 9 DEFENDANT. 10 __________________________________/ NO. SCUKCRCR-01-44321 11 12 13 PROCEEDINGS 14 15 HELD AT THE MENDOCINO COUNTY COURTHOUSE, UKIAH, 16 CALIFORNIA, ON THURSDAY, AUGUST 1, 2002. 17 18 19 APPEARANCES OF COUNSEL 20 FOR THE PLAINTIFF: KEITH FAULDER 21 DEPUTY DISTRICT ATTORNEY MENDOCINO COUNTY COURTHOUSE 22 UKIAH, CALIFORNIA 95482 23 FOR THE DEFENDANT: RICHARD PETERSEN 24 JUSTIN PETERSEN ATTORNEYS AT LAW 25 308 SOUTH SCHOOL STREET UKIAH, CALIFORNIA 95482 26 27 28 2 1 I N D E X 2 3 WITNESS: PAGE 4 LEO, RICHARD DIRECT BY MR. J. PETERSEN 5 5 CROSS BY MR. FAULDER 74 REDIRECT BY MR. J. PETERSEN 139 6 7 - - - 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 1 THURSDAY, AUGUST 1, 2002 UKIAH, CALIFORNIA 2 - - - 3 THE COURT: WE'RE ON THE RECORD IN PEOPLE VERSUS 4 SCHMIDT. MR. SCHMIDT IS PRESENT. HIS COUNSEL, MR. JUSTIN 5 PETERSEN AND RICHARD PETERSEN ARE PRESENT. MR. FAULDER'S 6 PRESENT FOR THE PEOPLE. 7 MR. FAULDER: GOOD MORNING, YOUR HONOR. 8 MR. J. PETERSEN: GOOD MORNING. 9 THE COURT: I CALLED MR. PETERSEN INTO CHAMBERS 10 REGARDING AN EX PARTE REQUEST FOR MONEY THAT I HAD SOME 11 QUESTIONS ABOUT. 12 MR. FAULDER: YOUR HONOR, I WAS POKING BEHIND THE 13 SCENES AND FOUND THAT OUT, JUST THE CURIOSITY GOT TO ME. 14 THE COURT: ALL RIGHT. I CAN UNDERSTAND. 15 ALL RIGHT. THIS MATTER COMES ON FOR THE DEFENSE 16 MOTION TO SUPPRESS THE DEFENDANT'S CONFESSION HEARING 17 THEREON. ARE BOTH SIDES READY? 18 MR. FAULDER: PEOPLE ARE READY, YOUR HONOR. 19 MR. J. PETERSEN: YES. 20 THE COURT: CALL YOUR WITNESS. 21 ALSO, THE RECORD SHOULD REFLECT YESTERDAY I DID 22 REVIEW THE TAPED ALLEGED CONFESSION AND FOLLOWED THE 23 TRANSCRIPT. 24 MR. J. PETERSEN: THEN WHAT WE'LL DO IS I WILL 25 CALL OUR EXPERT WITNESS DR. RICHARD LEO TO THE STAND. 26 THE COURT: SIR, STEP FORWARD PLEASE. RAISE YOUR 27 HAND RIGHT AND BE SWORN: 28 - - - 4 1 RICHARD LEO, 2 HAVING BEEN FIRST DULY SWORN, TESTIFIED AS FOLLOWS: 3 - - - 4 THE CLERK: THANK YOU. PLEASE BE SEATED. 5 STATE YOUR FULL NAME SPELLING YOUR LAST NAME FOR 6 THE RECORD. 7 THE WITNESS: RICHARD ANGELO LEO, L-E-O. 8 THE COURT: DIRECT. 9 MR. FAULDER: YOUR HONOR, BEFORE DIRECT BEGINS, 10 COULD WE HAVE THE RECORD REFLECT THAT THE TWO VIDEOTAPES 11 THAT WERE PRESENTED TO THE COURT HAVE BEEN MARKED? 12 THEY'VE BEEN MARKED EXHIBIT 1 AND EXHIBIT 2. I DON'T 13 THINK THAT WAS DONE ON THE RECORD. I DID TALK TO RICHARD 14 PETERSEN, SHOWED HIM THE TAPE AND TOLD HIM I WOULD BE 15 THEM BRINGING TO THE COURT; BUT THEY WERE MARKED AND I'D 16 ASK THEY BE INTRODUCED. 17 THE COURT: AS EVIDENCE? 18 MR. FAULDER: YES. 19 THE COURT: ANY OBJECTION? 20 MR. J. PETERSEN: NO, YOUR HONOR, SO LONG AS THAT 21 WAS REVIEWED WITH RICHARD PETERSEN, I THINK THAT'S FINE. 22 THE COURT: THEY'LL BE RECEIVED. 23 MR. FAULDER: THANK YOU, YOUR HONOR. 24 (EXHIBITS 1 AND 2 WERE RECEIVED IN 25 EVIDENCE.) 26 THE COURT: WE SHOULD ALSO MARK THE TRANSCRIPT 27 COURT EXHIBIT A. 28 MR. FAULDER: PLEASE, YOUR HONOR. THANK YOU. I 5 1 CAN MAKE ANOTHER COPY OF THE TRANSCRIPT. THE TRANSCRIPT I 2 PROVIDED TO THE COURT WAS ATTACHED TO THE PEOPLE'S 3 RESPONSE TO DEFENDANT'S MOTION IN LIMINE. 4 THE COURT: YES, IF YOU WILL PLEASE. 5 MR. FAULDER: I'LL DO THAT, YOUR HONOR. 6 (COURT EXHIBIT A WAS MARKED FOR 7 IDENTIFICATION.) 8 THE COURT: DIRECT? 9 MR. J. PETERSEN: DOES THE COURT HAVE ITS COPY OR 10 A COPY OF THE TRANSCRIPT BEFORE YOU THOUGH? YOU MIGHT 11 FIND THAT USEFUL. 12 THE COURT: YES, I DO. 13 MR. J. PETERSEN: OKAY. WHAT I'D LIKE TO DO 14 INITIALLY IS GO AHEAD AND HAVE THE C.V. MARKED, IF I MAY. 15 THE CLERK: MARKED AND IDENTIFIED AS A. 16 THE COURT: ALL RIGHT. DEFENSE A. 17 (EXHIBIT A WAS MARKED FOR 18 IDENTIFICATION.) 19 MR. J. PETERSEN: MAY I APPROACH? 20 THE COURT: YES. 21 DIRECT EXAMINATION 22 Q (BY MR. J. PETERSEN) DR. LEO, WHAT I'D LIKE TO 23 DO IS APPROACH AND PROVIDE A DOCUMENT AND SEE IF YOU 24 RECOGNIZE IT. 25 A YES. THIS IS MY CURRICULUM VITAE TO MARCH OF 26 2002. 27 Q AND AS WE GO ALONG, WHAT I'D LIKE YOU TO DO IS 28 TELL ME WHAT PAGE OF THE C.V. WE'RE TALKING ABOUT. THAT 6 1 WILL MAKE IT A LITTLE CLEARER FOR THE RECORD. 2 LET'S START WITH YOUR EDUCATIONAL BACKGROUND. DO 3 YOU HAVE A B.A. IN SOMETHING? 4 A YEAH, I HAVE A B.A. IN SOCIOLOGY FOR U.C. 5 BERKELEY AND THIS IS ON PAGE TWO OF THE C.V. I RECEIVED 6 THAT IN 1985. 7 Q DID YOU GO ON WITH YOUR SCHOOLING FROM THERE? 8 A I DID. I RECEIVED A MASTER'S IN SOCIOLOGY FROM 9 THE UNIVERSITY OF CHICAGO IN 1989, AND BOTH J.D. AND PH.D 10 IN 1994 FROM U.C. BERKELEY. 11 Q AND THE DUAL DEGREES YOU GOT FROM U.C. BERKELEY, 12 WAS THAT PART OF SOME SPECIALIZED PROGRAM? 13 A IT WAS. IT WAS FROM THE JURISPRUDENCE IN SOCIAL 14 POLICY AT BOALT HALL WHICH IS SPECIALIZED LAW AND SOCIAL 15 SCIENCE PROGRAM, SO DIFFERENT SOCIAL SCIENCE DISCIPLINES, 16 ECONOMICS, POLITICAL SCIENCE, HISTORY, SOCIOLOGY, 17 PSYCHOLOGY, CRIMINOLOGY, ALL STUDY THE LEGAL FIELD FROM 18 THEIR VANTAGE POINT. SO STUDENTS GRADUATE AND CAN GET 19 TRACKED INTO ONE OR MORE OF THOSE SOCIAL SCIENCES AND 20 STUDY. IN MY CASE I SPECIALIZED IN SOCIOLOGY AND SOCIAL 21 PSYCHOLOGY AND CRIMINAL AND AS IT APPLIED TO THE CRIMINAL 22 SYSTEM TO POLICE WORK. 23 Q YOU DO A DISSERTATION AS PART YOUR POLICE WORK TO 24 GET YOUR PH.D IN BERKELEY? 25 A YES. PH.D IS REQUIRED FOR ALL DISSERTATION. THE 26 DISSERTATION IS REQUIRED FOR ALL PH.D AS ADVANCED RESEARCH 27 PROGRAMS. I WROTE MY RESEARCH AND WROTE IT ON THE SUBJECT 28 OF POLICE INTERROGATION AND CONFESSIONS FROM A KIND OF 7 1 HISTORICAL AS WELL AS CONTEMPORARY STANDPOINT, FOCUSING ON 2 THE PSYCHOLOGY AND THE LAW POLICY ISSUES AND THE STUDY OF 3 POLICE INTERROGATIONS. 4 Q YOU DO FIELD AND RESEARCH AS PART OF THAT 5 DISSERTATION? 6 A YES. DISSERTATION THAT'S TO BE BASED ON ORIGINAL 7 RESEARCH AND PRIMARILY, BUT NOT ONLY MY RESEARCH INVOLVED 8 SITTING IN AND OBSERVING 122 INTERROGATIONS IN THE OAKLAND 9 POLICE DEPARTMENT IN OAKLAND, CALIFORNIA, IN THE BAY AREA 10 FROM 1992 TO 1993. IN ADDITION TO OBSERVING THOSE 122 11 INTERROGATIONS, I WAS ALSO ALLOWED TO OBSERVE VIDEOTAPES 12 OF TWO OTHER POLICE DEPARTMENTS IN THE BAY AREA, HAYWARD 13 AND VALLEJO. THEY GAVE ME THEIR TAPES THAT THEY HAD 14 FOR -- TOGETHER WOULD BE 60 CASES, SO I OBSERVED EITHER IN 15 PERSON OR BY VIDEOTAPE THOSE THREE DEPARTMENTS 182 16 INTERROGATIONS. AND THAT WAS THE FIELD RESEARCH -- PART 17 OF THE FIELD RESEARCH. I DID OTHER RESEARCH AS WELL. 18 Q DID YOU ALSO ATTEND SOME POLICE INTERROGATION 19 TRAINING COURSE? 20 A YES. I ATTENDED A NUMBER OF POLICE INTERROGATION 21 TRAINING COURSES. THE FIRST WAS IN-HOUSE INTERROGATION 22 TRAINING COURSE PUT ON BY THE OAKLAND POLICE DEPARTMENT. 23 FROM THERE I ATTENDED AND PARTICIPATED TWO- AND THREE-DAY 24 INTERROGATION COURSES, ONE INTRODUCTORY, ONE ADVANCED, PUT 25 ON BY REID AND ASSOCIATES, R-E-I-D, NATIONAL TRAINING 26 FIRM. 27 AND THEN AFTER THAT, I TOOK A WEEK-LONG COURSE AT 28 THE SAN MATEO COMMUNITY COLLEGE, ADMINISTRATION OF JUSTICE 8 1 DEPARTMENT. THE LAST ONE I ATTENDED BY INVITATION WAS 2 FEDERAL LAW ENFORCEMENT TRAINING CENTER IN GLYNCO, 3 G-L-Y-N-C-O, GEORGIA. IT WAS ADVANCED INTERROGATION 4 COURSE. AND THAT'S WHERE ALL FEDERAL AGENTS WITH THE 5 EXCEPTION OF THE FBI RECEIVED TRAINING. 6 Q AND DID YOU PARTICIPATE IN THOSE TRAINING 7 CLASSES JUST AS ANY OTHER PARTICIPANT DID? 8 A I DID. I BELIEVE THAT I WAS THE ONLY CIVILIAN. 9 MANY OF THE COURSES HAD PRIVATE LAW ENFORCEMENT OR POSTAL 10 INSPECTION OR FEDERAL LAW ENFORCEMENT THAT DON'T WEAR 11 UNIFORMS. I PARTICIPATED AS IF I WERE ONE OF THEM. I DID 12 THE ROLE-PLAYING EXERCISES. I TOOK EXAMINATIONS. I 13 RECEIVED A CERTIFICATE. IT WAS JUST AS IF I WAS ONE OF 14 EVERYBODY ELSE. 15 Q AND YOU MENTIONED THE REID AND ASSOCIATES CLASS. 16 IS THAT BASED ON A PUBLICATION BY TWO INDIVIDUALS NAMED 17 REID AND BINBAU? 18 A THIS PUBLICATION GOING TO 1992, IT WAS ONE OF 19 THE FIRST INTERROGATION TRAINING MANUALS IN THE COUNTRY. 20 IT'S CALLED CRIMINAL INTERROGATION AND CONFESSIONS. IT'S 21 NOW IN ITS FOURTH EDITION, 2001. THIS IS THE BIBLE OF ALL 22 INTERROGATION TRAINING IN THE UNITED STATES. THAT IS THE 23 STANDARD REFERENCE MANUAL IN AMERICAN POLICING FOR 24 INTERVIEWING AND INTERROGATION OF CRIMINAL SUSPECTS. 25 Q AND IS THAT BINBAU AND REID VOLUME THE BASIS OF 26 ALL THESE POLICE TRAINING COURSES? 27 A IT IS THE BASIS OF THE POLICE TRAINING COURSES. 28 THEY HAVE, OF COURSE, THEIR OWN UNIQUE PRODUCTS AND 9 1 MANUALS OTHER THAN THE REID METHOD; BUT ALL THE TRAINING 2 THAT I'VE SEEN, ALL THE MANUALS THAT ARE PUBLISHED IN THE 3 UNITED STATES EITHER DRAW ON OR REFERENCE OR QUITE FRANKLY 4 PLAGIARIZE WHAT'S IN THE REID MANUAL. SO WHEN I SAY 5 THEY'RE THE BIBLE, THEY REALLY DEFINE THE LANDSCAPE. AND 6 OTHERS WHO COME ALONG AFTER THAT TAKE FROM THAT METHOD, 7 SOMETIMES QUITE LIBERALLY. 8 Q ASIDE FROM THE CLASSES THAT YOU TOOK AND THE 9 INTERROGATIONS THAT YOU VIEWED, DID YOU TALK TO ANYONE 10 ELSE IN DOING YOUR FIELD RESEARCH? 11 A WELL, I INTERVIEWED PROSECUTORS AND DEFENSE 12 ATTORNEYS AND POLICE INTERROGATORS AND POLICE 13 INTERROGATION TRAINERS, POLICE MANAGERS, CAPTAINS, CHIEFS, 14 LIEUTENANTS. IT'S A -- PART OF THE STUDY WAS BASED ON 15 INTERVIEWS. 16 Q LET'S TALK FOR A MOMENT ABOUT PUBLICATIONS. 17 HAVE YOU BEEN PUBLISHED IN THE AREA OF POLICE 18 INTERROGATION AND COERCION? 19 A YES. I PUBLISHED A NUMBER OF PRIMARILY JOURNAL 20 ARTICLES ON THE SUBJECT OF POLICE INTERROGATION AND 21 COERCION AND CONFESSIONS. 22 Q AND WHEN YOU SAY JOURNAL ARTICLES, IS THAT A 23 CERTAIN TYPE OF ARTICLE? 24 A WELL, AS A PROFESSIONAL, MY PRIMARY 25 RESPONSIBILITY, SINCE I'M EMPLOYED BY RESEARCH 26 INSTITUTION, IS TO PUBLISH IN PEER REVIEW OR LEADING 27 ACADEMIC JOURNALS. SO I WAS REFERRING TO PUBLISHING IN 28 ACADEMIC JOURNALS, SPECIALTY JOURNALS THAT ARE PRIMARILY 10 1 WRITTEN BY RESEARCHERS, LIKE ACADEMICS FOR RESEARCH 2 AUDIENCES. 3 Q ARE THESE PUBLICATIONS SUBJECT TO A TYPE OF PEER 4 REVIEW? 5 A FOR THE MOST PART, YES. PEER REVIEW IS THE 6 QUALITY CONTROL PROCESS WHEREBY THE WORK THAT YOU WRITE UP 7 AND SUBMIT GETS VETTED BEFORE IT GETS PUBLISHED. SO IN 8 TYPICAL PEER REVIEW PROCESS, I WOULD SUBMIT THREE OR FOUR 9 COPIES OF AN ARTICLE. THE EDITOR WOULD EITHER REQUEST OR 10 TAKE OFF THE FACE SHEET. HE OR SHE WOULD THEN IDENTIFY 11 THREE OR FOUR EXPERTS IN THAT AREA OF ACADEMIC STUDY, SEND 12 THEM THE ARTICLES, WRITE THEM A LETTER ASKING THEM TO 13 EVALUATE ON A NUMBER OF DIMENSIONS. THEY WRITE BACK 14 COMMENTS. THE EDITOR, BASED ON REVIEW OF THOSE COMMENTS 15 AND HIS OR HER INDEPENDENT READING OF THE ARTICLE, WILL 16 EITHER ACCEPT IT, REJECT IT, ACCEPT IT CONDITIONALLY 17 SUBJECT TO REVISION AND RESUBMIT. EVENTUALLY THE ARTICLE 18 EITHER GETS ACCEPTED OR REJECTION MAY GET SENT AND GO 19 THROUGH SEVERAL MODIFICATIONS. AND THAT'S WHAT IS MEANT 20 BY THE PEER REVIEW PROCESS. 21 Q AS WELL -- HOW MANY PUBLICATIONS, IF YOU CAN 22 GIVE ME AN ESTIMATE, HAVE YOU AUTHORED WITH RESPECT TO 23 POLICE INTERROGATION PRACTICES? 24 A I'M LOOKING AT PAGES TWO TO FIVE OF THE C.V. AND 25 I WOULD SAY SOMEWHERE BETWEEN 15 AND 30 TOTAL. SOME OF MY 26 PUBLICATIONS ARE NOT DIRECTLY ABOUT POLICE INTERROGATION. 27 THEY'RE MORE BROAD, MAYBE ABOUT THE INSTITUTION OF 28 POLICING OR SOME BROADER ASPECT OF CRIMINAL STUDIES; BUT 11 1 THE VAST MAJORITY ARE INTERROGATION OR CONFESSION. 2 Q HAVE YOU WRITTEN BOOKS AS WELL? 3 A I HAVE PUBLISHED ONE BOOK AND I'M UNDER CONTRACT 4 AND TRYING TO COMPLETE A SECOND BOOK. 5 Q AND DO EITHER OF THESE BOOKS RELATE TO 6 INTERROGATION PRACTICES? 7 A YES. THE FIRST BOOK ON PAGE TWO OF THE C.V. THAT 8 I HAVE IN FRONT OF ME "THE MIRANDA DEBATE: LAW, JUSTICE 9 AND POLICING" IS PRIMARILY ABOUT MIRANDA, BUT ALSO 10 ARTICLES, OR CHAPTERS RATHER IN THERE ABOUT VARIOUS 11 ASPECTS OF POLICE INTERROGATION. 12 THE OTHER ONE THAT I'M CURRENTLY WORKING ON 13 TENTATIVELY ENTITLED "INSIDE THE INTERROGATION ROOM" IS 14 ABOUT THE PRACTICE OF INTERROGATION, THE METHODS, THE 15 PSYCHOLOGY OF INTERROGATION, THE CULTURE OF POLICING IN 16 MODERN AMERICA AND HOW THAT GIVES US A BETTER 17 UNDERSTANDING OF POLICE INTERROGATION PRACTICES AND 18 POLICIES. 19 Q ASIDE FROM BOOKS TO BE PUBLISHED OR AUTHORED BY 20 YOU, HAVE YOU WRITTEN CHAPTERS ON THE SUBJECTS OF POLICE 21 INTERROGATION PRACTICES AND COERCION? 22 A YES. FROM TIME TO TIME, I'D BE INVITED TO WRITE 23 A CHAPTER FOR AN ACADEMIC BOOK. BOOKS TYPICALLY GO 24 THROUGH PEER REVIEW PROCESS BEFORE THE CONTRACT IS 25 SIGNED. THE EDITOR WOULD CONTACT ME. I'VE WRITTEN 26 ABOUT -- LOOKS LIKE FIVE ON THE BOTTOM OF PAGE FOUR OF THE 27 C.V. 28 Q AND HOW ABOUT SHORT PUBLICATIONS -- FIRST OF ALL, 12 1 WHAT IS A SHORT PUBLICATION? 2 A SINCE MOST OF THE PUBLICATIONS THAT I DO ARE 3 ACADEMIC PUBLICATIONS, JOURNAL PUBLICATIONS AND THEY RANGE 4 FROM 30 TO 100 PAGES AND THEY'RE QUITE SERIOUS ACADEMIC 5 WORKS, I DIDN'T WANT TO INFLATE MY C.V. BY PUTTING FIVE 6 PAGES OF ENCYCLOPEDIA ENTRIES ON A CASE UNDER THE SAME 7 HEADING AS ACADEMIC ARTICLES. THESE ARE JUST SHORTER 8 PUBLICATIONS THAT DID NOT TAKE AS MUCH TIME. AND PERHAPS 9 SOME OF THEM MAY -- SOME OF THEM DID GO THROUGH PEER 10 REVIEW. OTHERS DIDN'T. 11 Q HAVE YOU BEING ASKED TO SERVE AS A PEER REVIEWER 12 FOR VARIOUS JOURNALS? 13 A YES. I'VE SERVED MANY TIMES AS A PEER REVIEWER. 14 I BELIEVE THE MANY TIMES ARE LISTED ON PAGE 15 AND 16 OF 15 THE PROFESSIONAL ACTIVITIES. SO IT LOOKS LIKE ABOUT TEN 16 DIFFERENT JOURNALS GOING BACK TO 1995. I'VE REVIEWED MANY 17 JOURNAL ARTICLES THAT HAVE BEEN SUBMITTED TO THOSE 18 JOURNALS. 19 Q AS PART OF PEER REVIEW PROCESS? 20 A YES. I'VE ALSO SERVED ON EDITORIAL BOARD OF LAW 21 AND SOCIETY REVIEW WHICH IS ALSO LISTED ON THERE ON 15, 22 WHICH I BELIEVE IS A LEADING JOURNAL IN THE LAW AND SOCIAL 23 SCIENCE AREA. AND AS AN EDITORIAL BOARD MEMBER, ONE IS 24 CALLED ON MORE FREQUENTLY, FOUR, FIVE, SIX TIMES A YEAR TO 25 REVIEW ARTICLES OR MAKE INPUT ABOUT EDITORIAL DECISION. 26 Q HAVE YOU RECEIVED ANY AWARD OR DISTINCTION IN 27 YOUR FIELD? 28 A I HAVE. THEY ARE LISTED ON PAGE SIX OF THE C.V. 13 1 Q ANY THAT ARE PARTICULARLY GERMANE TO ISSUES WE'RE 2 DEALING WITH TODAY? 3 A WELL, I RECEIVED THREE AWARDS THAT ARE BASED ON 4 MY RESEARCH ON INTERROGATION AND CONFESSION. ONE OF THEM 5 WAS DISTINGUISHED ASSISTANT PROFESSOR AWARD FOR RESEARCH 6 FROM U.C. IRVINE IN THE YEAR 2001. THERE ARE THREE LEVELS 7 AT THE UNIVERSITY ASSISTANT, ASSOCIATE, AND FULL 8 PROFESSOR. AND IT TAKES SEVERAL YEARS TO GET THROUGH EACH 9 ONE. ALTHOUGH I ENDED UP A FULL PROFESSOR IN THE ACADEMIC 10 YEAR 2000 AND 2001, I RECEIVED THE RESEARCH AWARD FOR 11 EVERYBODY WHO IS IN THE CATEGORY OF ASSISTANT PROFESSOR 12 THERE WITHIN THE FIRST SEVEN YEARS. AND THIS WAS BASED ON 13 MY -- PRIMARILY ON MY RESEARCH ON INTERROGATION AND 14 CONFESSION. I'D ALSO RECEIVED A RESEARCH AWARD FOR EARLY 15 CAREER EXCELLENCE AND CONTRIBUTIONS TO PSYCHOLOGY, LAW AND 16 PUBLIC POLICY IN THE YEAR 2000 FROM THE AMERICAN 17 PSYCHOLOGY-LAW SOCIETY. THIS WAS CALLED THE SHALEEM, 18 S-H-A-L-E-E-M, SHAH, S-H-A-H, CAREER ACHIEVEMENT AWARD. 19 ALSO LISTED ON PAGE SIX OF THE C.V. 20 AND THE OTHER OF THE THREE AWARDS WAS GIVEN IN 21 1999 BY THE AMERICAN SOCIETY OF CRIMINOLOGY. THIS IS THE 22 MAIN RESEARCH AND PROFESSIONAL ORGANIZATION FOR 23 CRIMINOLOGISTS. IT WAS CALLED THE RUTH SHONLE, 24 S-H-O-N-L-E, CAVAN, C-A-V-A-N, AWARD FOR SCHOLARLY 25 CONTRIBUTIONS FROM YOUNG SCHOLAR FIELD OF CRIMINOLOGY. 26 ALL THREE OF THESE WERE BASED ON MY RESEARCH TO DATE AT 27 THE TIME AND PRIMARILY ON MY RESEARCH IN INTERROGATION AND 28 CONFESSION, WHICH IS WHAT I'VE PRIMARILY FOCUSED ON. 14 1 Q YOUR AREA OF STUDY I IMAGINE THERE ARE 2 PROFESSIONAL MEETINGS WHERE VARIOUS SCHOLARS GET TOGETHER 3 AND DISCUSS CURRENT DEVELOPMENTS AND THAT SORT OF THING? 4 A CORRECT. THESE WOULD BE PROFESSIONAL MEETINGS. 5 TYPICALLY MANY OF THE ORGANIZATIONS WE AS SCHOLARS BELONG 6 TO HAVE ANNUAL MEETINGS. AND WHAT HAPPENS AT THOSE 7 MEETINGS IS WE PRESENT RESEARCH IN PROGRESS OR SYNTHESIS 8 OF EXISTING RESEARCH AND ONE HAS TO SUBMIT ABSTRACTS OF 9 EITHER EXISTING RESEARCH OR NEW RESEARCH OR SYNTHESIS OF 10 EXISTING RESEARCH. AND THEN IT GOES THROUGH A KIND OF 11 PEER REVIEW PROCESS. SOMETIMES YOU'RE REJECTED, SOMETIMES 12 YOU'RE ACCEPTED. PANELS ARE FORMED AND THEN THERE ARE TWO 13 OR THREE-DAY MEETING WITH FOUR OR FIVE TIME SLOTS 14 THROUGHOUT THE DAY WHERE VARIOUS PANELS OF PEOPLE ON THOSE 15 PANELS WILL PRESENT THEIR RESEARCH. AND SO I HAVE LISTED 16 ON PAGES SIX TO EIGHT OF MY C.V. THE VARIOUS PRESENTATIONS 17 THAT I'VE MADE OF EXISTING RESEARCH AT SCIENTIFIC AND 18 ACADEMIC PROFESSIONAL MEETINGS. 19 Q THESE ARE ALSO SUBJECT, I UNDERSTAND, TO SOME 20 FORM OF PEER REVIEW IF YOU SUBMIT YOUR BOOKS TO MEETINGS 21 IN ADVANCE AND THEY EITHER ACCEPT OR REJECT IT AS PART OF 22 WHAT THEY WILL PRESENT? 23 A CORRECT. SOMETIMES THEY JUST WANT AN ABSTRACT 24 DEFINING WHICH PROFESSIONAL SOCIETY. SOME OF THEM WANT A 25 20-PAGE PAPER DESCRIBING THE RESEARCH. 26 Q HOW MANY TIMES HAVE YOU DONE THAT? GIVEN 27 PRESENTATIONS AT THESE MEETINGS? 28 A I HAVEN'T COUNTED, BUT IT LOOKS TO ME LIKE ABOUT 15 1 TWO DOZEN. 2 Q AND HAS THAT BEEN JUST IN THE STATE OF 3 CALIFORNIA, OR IS THAT ALL OVER? 4 A NO, THESE MEETINGS FOR PROFESSIONAL ORGANIZATIONS 5 LIKE THE AMERICAN SOCIETY OF CRIMINOLOGY OR AMERICAN 6 PSYCHOLOGICAL ASSOCIATION OR THE LAW AND SOCIETY 7 ASSOCIATION, THEY'RE ALL ACROSS THE COUNTRY, SOMETIMES 8 THEY'RE INTERNATIONAL. THEY TYPICALLY ONLY MEET ONCE A 9 YEAR. BUT I HAVE NO CONTROL OVER WHERE THEY MEET. SO 10 MOST OF THE PRESENTATIONS ACTUALLY ARE IN STATES OTHER 11 THAN CALIFORNIA. 12 Q AND HAVE MANY OF THE PRESENTATIONS YOU'VE MADE AT 13 THESE VARIOUS MEETINGS INVOLVED POLICE INTERROGATION 14 PRACTICES AND COERCION? 15 A YES. MANY OF THE PRESENTATIONS HAVE BEEN ABOUT 16 VARIOUS ASPECTS OF MY RESEARCH ON THOSE TOPICS. 17 Q LET'S TALK ABOUT PRESENTATIONS AT UNIVERSITIES. 18 AM I CORRECT IN ASSUMING THAT THESE ARE NOT THE SORT OF 19 THINGS THAT ARE SUBJECT TO PEER REVIEW? 20 A THAT'S CORRECT. THESE ARE TYPICALLY INVITED. 21 THEY'RE LISTED ON PAGES EIGHT THROUGH ELEVEN OF MY C.V. 22 MANY TIMES SOMEBODY AT A UNIVERSITY IN A RELATED 23 DEPARTMENT OR DEPARTMENT CHAIR WILL INVITE A SCHOLAR TO 24 PRESENT THEIR RESEARCH AND IT'S TYPICALLY NOT NEW RESEARCH 25 THAT YOU PRESENT, ALTHOUGH SOMETIMES YOU DO. IT MIGHT BE 26 SYNTHESIS OF EXISTING RESEARCH. AND WHEN ONE GETS THESE 27 INVITATIONS, TYPICALLY THERE'S NO PEER REVIEW PROCESS. 28 Q AND HOW MANY DIFFERENT STATES HAVE YOU GIVEN 16 1 THESE PRESENTATIONS TO VARIOUS UNIVERSITIES? 2 A I HAVEN'T COUNTED. IT LOOKS LIKE AT LEAST HALF A 3 DOES, MAYBE EVEN A DOZEN DIFFERENT STATES, POSSIBLY EVEN 4 MORE THAN THAT. 5 Q HAS IT BEEN RESTRICTED TO THIS COUNTRY? HAVE YOU 6 GIVEN PRESENTATIONS TO UNIVERSITIES ON THESE SUBJECTS 7 OUTSIDE THE U.S. 8 A YEAH. IN 1996 I GAVE SOME LECTURES IN CHINA, SO 9 I HAVE GIVEN LECTURES IN OTHER COUNTRIES AS WELL. 10 Q LET'S TALK ABOUT GRANTS FOR A MOMENT. GRANT IS 11 THAT SOMETHING THAT YOU MUST APPLY FOR FROM SAY 12 UNIVERSITIES IN ORDER TO GET THEM TO FUND A RESEARCH 13 PROJECT THAT YOU HAVE IN MIND? 14 A YEAH. AND I'VE GOTTEN ALL OF MY GRANTS FROM THE 15 UNIVERSITY THAT I'VE WORKED FOR. THERE ARE ALSO OTHER 16 FUNDING INSTITUTIONS OUTSIDE OF UNIVERSITIES THAT FUND 17 DIFFERENT TYPES OF RESEARCH AS WELL. 18 Q AND IS THERE SOME SORT OF REVIEW PROCESS INVOLVED 19 IN THAT OR DO YOU JUST SORT OF ASK FOR MONEY AND THEY GIVE 20 IT TO YOU, OR DO THEY HAVE TO FIND THERE'S MERIT IN YOUR 21 WORKS? 22 A THERE'S A REVIEW PROCESS FOR GRANTS. THERE'S 23 COMMITTEES ASSEMBLED THAT REVIEW THE APPLICATION AND THE 24 WORK THAT'S DEEMED MERITORIOUS WILL GET IT. ALTHOUGH I'M 25 SURE A LOT OF MERITORIOUS WORK ALSO GETS TURNED DOWN. IT 26 MAY ALSO BE A FUNCTION OF THE FUNDING THAT'S AVAILABLE OR 27 THE GUIDELINES OF WHAT THE INSTITUTION IS LOOKING FOR IN 28 TERMS OF WHO IT FUNDS THAT YEAR. 17 1 Q AND HAVE YOU RECEIVED A NUMBER OF GRANTS TO STUDY 2 THE AREA OF POLICE INTERROGATION PRACTICES AND COERCION? 3 A YES. PRIMARILY FROM TWO UNIVERSITIES THAT I'VE 4 BEEN EMPLOYED BY U.C. IRVINE AND THE UNIVERSITY OF 5 COLORADO AT BOULDER. 6 Q LET'S TALK ABOUT PROFESSIONAL ASSOCIATIONS OTHER 7 THAN THE ONES THAT YOU'VE ALREADY TALKED ABOUT. THE ONES 8 YOU BELONG TO. 9 HAVE YOU GIVEN PRESENTATIONS TO THEM? 10 A YES, I'VE GIVEN MANY PRESENTATIONS TO THESE 11 PROFESSIONAL ASSOCIATIONS. IF I UNDERSTAND YOUR QUESTION, 12 YOU'RE TALKING ABOUT LIKE THE AMERICAN SOCIETY OF 13 CRIMINOLOGY OR THE AMERICAN PSYCHOLOGICAL ASSOCIATION. 14 Q THOSE ARE SORTS OF THINGS I'M TALKING ABOUT. I'M 15 TRYING TO GET AT SOMETHING THAT'S DIFFERENT THAN THE ONES 16 WE'VE TALKED ABOUT UNDER SCIENTIFIC AND ACADEMIC MEETINGS, 17 TRYING TO DISTINGUISH BETWEEN THE TWO OF THEM. 18 A I SEE. I WAS A LITTLE CONFUSED. ON PAGE ELEVEN 19 OF MY C.V. I HAVE PRESENTATIONS TO PROFESSIONAL 20 ASSOCIATIONS. AND THESE ARE PRIMARILY ORGANIZATIONS OF 21 ATTORNEYS OR PSYCHOLOGISTS. AND I BELIEVE I MAKE A 22 DISTINCTION IN NEXT SECTION TO LAW ENFORCEMENT. I 23 FREQUENTLY GET INVITED TO PRESENT MY WORK TO ATTORNEYS 24 ORGANIZATIONS AND SOMETIMES TO PSYCHOLOGISTS AND SOMETIMES 25 TO LAW ENFORCEMENT AS WELL. 26 Q HAVE ALL OF THESE PRESENTATIONS OR ALMOST ALL OF 27 THEM RELATED TO THE FIELD OF POLICE INTERROGATION AND 28 COERCION? 18 1 A I BELIEVE THEY ALL HAVE IN ONE WAY OR ANOTHER, 2 YES. 3 Q AND HOW MANY TIMES HAVE YOU GIVEN THESE 4 PRESENTATIONS APPROXIMATELY? 5 A I WOULD SAY MAYBE A DOZEN TO TWO DOZEN IS WHAT IT 6 LOOKS LIKE. 7 Q HAVE YOU GIVEN THESE PRESENTATIONS TO FEDERAL 8 GOVERNMENT AS WELL? 9 A YES, THE MILITARY AND STATE ORGANIZATIONS AS 10 WELL. 11 Q LET'S TALK ABOUT PRESENTATIONS THAT YOU'VE MADE 12 TO LAW ENFORCEMENT ORGANIZATIONS IN PARTICULAR. HOW MANY 13 OF THOSE HAVE YOU DONE? 14 A ON THIS CURRICULUM VITAE I HAVE FIVE LISTED? 15 LAST WEEK I SPENT THREE DAYS IN FORT LAUDERDALE, FLORIDA, 16 GIVING TRAINING SESSIONS TO THE FORT ON BROW REGARD COUNTY 17 SHERIFF'S OFFICE ON INTERROGATION AND CONFESSIONS AND 18 COERCION, WHICH IS NOT LISTED. THIS IS AN OLDER VERSION 19 OF THE C.V. SO THAT WOULD BE SIX. AND THOSE WERE 20 SIX-HOUR TRAINING SESSIONS, THREE DAYS EACH. SIX TIMES 21 THREE. HERE I'VE GOT LISTED TRAINING I DID TO POLICE IN 22 LOUISIANA, AS WELL AS POLICE IN TEXAS. HAYWARD, 23 CALIFORNIA, WAS A LECTURE. AND THEN LECTURE THAT I GAVE 24 IN CHINA, REPUBLIC OF CHINA AND REPUBLIC OF CYPRUS OFF THE 25 COAST OF GREECE. 26 Q I IMAGINE WHEN YOU'RE GOING TO POLICE WHAT 27 THEY'RE TRYING TO GET FROM YOU ARE TECHNIQUES TO AVOID 28 COERCING A CONFESSION; IS THAT RIGHT? 19 1 A THERE ARE THREE AREAS THAT I USUALLY TALK ABOUT 2 WHEN I GIVE PRESENTATIONS TO POLICE ORGANIZATIONS OR 3 TRAINING SESSIONS UNLESS THEY ASK ME TO TALK ABOUT 4 SOMETHING ELSE. THE FIRST IS HOW TO MORE SUCCESSFULLY 5 ELICIT CONFESSIONS. HOW TO USE PSYCHOLOGY AND WHAT WE 6 KNOW FROM THE ACADEMIC STUDY OF PSYCHOLOGY, WHICH IS NOT 7 ALWAYS REFLECTED IN POLICE TRAINING MANUALS. THE IDEA IS 8 TO GET A BETTER UNDERSTANDING OF WHAT IS COERCION AND HOW 9 TO AVOID ELICITING A STATEMENT THAT WILL BE DEEMED COERCED 10 AND EXCLUDED FROM A COURT OF LAW. AND THIRD IS HOW TO 11 AVOID AND PREVENT ELICITING A FALSE OR UNRELIABLE 12 STATEMENTS OR ADMISSIONS. 13 Q DO YOU BELONG TO ANY PROFESSIONAL MEMBERSHIPS? 14 A YES, I BELONG TO A NUMBER OF PROFESSIONAL 15 ORGANIZATIONS LIKE THE ORGANIZATIONS I MENTIONED EARLIER, 16 THE AMERICAN SOCIETY OF CRIMINOLOGY, THE AMERICAN 17 PSYCHOLOGY-LAW SOCIETY, ACADEMY OF CRIMINAL JUSTICE 18 SCIENCES, AMERICAN PSYCHOLOGICAL ASSOCIATION. THERE'S A 19 FEW OTHERS THERE LISTED ON PAGE 17 OF MY VITAE. 20 Q LET'S TALK ABOUT YOUR WORK. 21 CURRENTLY, YOU ARE A PROFESSOR AT U.C. IRVINE; IS 22 THAT CORRECT? 23 A YES, BEEN THERE SINCE JULY OF 1997. I'M AN 24 ASSOCIATE PROFESSOR, AND I AM A PROFESSOR IN TWO DIFFERENT 25 AREAS. MY PRIMARY APPOINTMENT IS IN THE DEPARTMENT OF 26 CRIMINOLOGY. MY SECONDARY APPOINTMENT IS IN THE 27 DEPARTMENT OF PSYCHOLOGY AND SOCIAL BEHAVIOR. 28 Q AND DURING YOUR WORK AS A PROFESSOR HOW MANY 20 1 DIFFERENT COURSES HAVE YOU TAUGHT THAT RELATE TO POLICE 2 INTERROGATION TACTICS AND COERCIVENESS OR POLICE 3 INTERROGATION? 4 A PROBABLY ABOUT HALF A DOZEN DIFFERENT COURSES. 5 SOME OF THEM MANY, MANY TIMES. I THINK ALL THE COURSES 6 THAT I'VE TAUGHT ARE ACTUALLY DISPLAYED ON MY CURRICULUM 7 VITAE ON PAGES FOURTEEN AND FIFTEEN. VIRTUALLY ALL OF 8 THESE CLASSES, LOOKS LIKE ABOUT A DOZEN TOTAL LISTED, HAVE 9 HAD SOME SEGMENT ON INTERROGATION AND CONFESSION 10 COERCION. A FEW OF THE CLASSES HAVE BEEN PRIMARILY JUST 11 ABOUT THAT. 12 Q AND DO YOU HAVE, SAY, AN ACADEMIC SPECIALIZATION 13 IN YOUR WORK? 14 A WELL, I'M BROADLY TRAINED IN SOCIOLOGY AND 15 CRIMINOLOGY AND SOCIAL PSYCHOLOGY. WHEN YOU GET THE PH.D 16 AND GO ON TO BE A RESEARCHER, YOU NARROW YOUR FOCUS IN 17 TERMS OF RESEARCH SPECIALIZATION, UNLESS YOU'RE A 18 GENERALIST. AND IN MY CASE MY AREA OF RESEARCH 19 SPECIALIZATION HAS BEEN WHAT WE'VE BEEN TALKING ABOUT, 20 POLICE INTERVIEWS AND INTERROGATION, COERCIVE INFLUENCE 21 AND PERSUASION, TRUE AND FALSE CONFESSIONS. AN AREA OF 22 STUDY CALLED MISCARRIAGE OF JUSTICE WITHIN THE BROADER 23 FIELD OF CRIMINAL SOCIAL PSYCHOLOGY AND SOCIOLOGY. 24 Q LET'S TALK ABOUT YOUR PRIOR TESTIMONY IN CASES 25 RELATING WHERE YOU WERE ASKED TO TESTIFY ABOUT POLICE 26 INTERROGATION PRACTICES AND COERCIVENESS. 27 HOW MANY TIMES WOULD YOU SAY YOU'VE TESTIFIED IN 28 THIS AREA? 21 1 A I'VE TESTIFIED IN THIS AREA I BELIEVE 72 TIMES. 2 I DIDN'T BRING MY LITTLE STAT SHEET WITH ME. GOING BACK 3 TO 1997, I FIRST TESTIFIED I BELIEVE IN 1997, I'VE 4 TESTIFIED IN 17 DIFFERENT STATES PRIMARILY IN THE STATE OF 5 CALIFORNIA. I'VE TESTIFIED IN STATE COURTS PRIMARILY, BUT 6 ALSO IN FEDERAL AND MILITARY COURTS. 7 Q AND OUT OF THOSE TIMES THAT YOU'VE TESTIFIED, 8 WHAT PERCENTAGE OF CASES DO YOU TESTIFY IN WHERE YOU'VE 9 BEEN ASKED TO REVIEW A CASE? 10 A WELL, I'VE BEEN ASKED TO REVIEW ABOUT 350 CASES 11 OR COME ON AS CONSULTANT AND CONSULT ON THOSE CASES. AND 12 MANY OF THE CASES I CAN -- SIMPLY CAN'T HELP THE DEFENSE 13 ATTORNEY WHO CONTACTS ME OR THE ATTORNEY WHO CONTACTS ME. 14 MAYBE A CIVIL ATTORNEY. AND IF I TESTIFIED 72 SOME-ODD 15 TIMES AND CONSULTED ON 350 CASES APPROXIMATELY, IT'S ABOUT 16 ONE IN FIVE. SO I TESTIFIED TYPICALLY IN ONE OUT OF EVERY 17 FIVE CASES THAT I'M ASKED TO REVIEW MATERIALS FOR. 18 Q WOULD IT BE FAIR TO GUESS OR PRESUME THAT THE 19 OTHER FOUR OUT OF FIVE YOU'VE HAD TO TELL THE ATTORNEY, 20 POSSIBLY DEFENSE ATTORNEY, THAT YOU JUST CAN'T HELP THEM 21 IN THAT CASE? 22 A I THINK MANY OF THOSE, NOT ALL. SOME RESOLVE 23 BEFORE THEY WOULD CALL ME TO TESTIFY. SAY IF THEY WANT ME 24 TO TESTIFY AT TRIAL, THE CASE RESOLVES BY PLEA BARGAIN; 25 BUT A GREAT MAJORITY I CAN'T GIVE ASSISTANCE TO THE 26 DEFENSE OR CIVIL ATTORNEY. 27 Q HAVE YOU EVER TESTIFIED FOR THE PROSECUTION? 28 A NO. 22 1 Q IS THERE A REASON FOR THAT FROM YOUR PERSPECTIVE? 2 A YES, THERE IS A REASON FOR THAT. AND THE REASON 3 IS THAT THE PROSECUTION NEVER CONTACTS ME. I'VE ONLY BEEN 4 CONTACTED A COUPLE TIMES BY THE PROSECUTION. ONCE WAS A 5 CASE THAT HAD TO DO WITH JURIES AND THAT WAS OUTSIDE MY 6 AREA OF SPECIALIZATION. AND THE OTHER TIME THERE WAS A 7 CONFLICT OF INTEREST. A RESEARCHER WHO I WAS WRITING 8 ARTICLES WITH HAD BEEN RETAINED BY THE DEFENSE ATTORNEY. 9 AFTER I FOUND THAT OUT, I DIDN'T FEEL ETHICALLY 10 COMFORTABLE PARTICIPATING IN THE CASE. ALTHOUGH HAD THERE 11 NOT BEEN THE CONFLICT, I WOULD HAVE BEEN HAPPY TO REVIEW 12 MATERIALS. 13 AND THE REASON I DON'T WORK FOR PROSECUTORS OR 14 CONSULT WITH PROSECUTORS OR TESTIFY ON THEIR BEHALF IS NOT 15 BECAUSE I HAVE A BIAS AGAINST PROSECUTORS. I'VE GIVEN 16 PRESENTATIONS TO PROSECUTORS. IT'S BECAUSE THEY DON'T 17 CONTACT ME, PRESUMABLY GIVEN MY AREA OF EXPERTISE. 18 Q WERE YOU CONTACTED BY FEDERAL PROSECUTORS IN AN 19 EFFORT TO TRY AND GET YOU TO ASSIST THEM IN THE OKLAHOMA 20 CITY BOMBING CASE? 21 A THAT WAS THE CASE THAT I WAS REFERRING TO WHERE 22 THEY CONTACTED ME ABOUT A JURY ISSUE, A JOINDER ISSUE. 23 AND AT THE TIME I WAS PROFESSOR AT THE UNIVERSITY OF 24 COLORADO. AND THEIR PROFESSOR THERE IS ONE OF THE LEADING 25 JURY EXPERTS IN THE COUNTRY AND I REFERRED THEM TO HIM. 26 Q WE'VE TALKED A BIT ABOUT PEER REVIEW. LET'S TALK 27 FOR A MOMENT ABOUT THE SCIENTIFIC METHOD. 28 IS THERE SOMETHING CALLED THE SCIENTIFIC METHOD? 23 1 A THE SCIENTIFIC METHOD, YES, REFERS TO RESEARCH 2 METHODS IN SCIENCE AND SOCIAL SCIENCE, THE GOAL OF WHICH 3 IS TO PROVIDE VALID AND RELIABLE KNOWLEDGE. 4 Q AND WOULD YOU SAY THAT CRIMINOLOGY IS A 5 RECOGNIZED AREA OF SCHOLARLY ENDEAVOR? 6 A YES. AND IT'S RECOGNIZED BECAUSE EVERY MAJOR 7 UNIVERSITY IN THE COUNTRY HAS EITHER A CRIMINOLOGY 8 DEPARTMENT OR THEY HAVE A SOCIOLOGY DEPARTMENT THAT AS 9 CRIMINOLOGY AS A MAJOR FOCUS. 10 I WOULD SAY IT'S A RECOGNIZED SOCIAL SCIENCE 11 DISCIPLINE IN UNIVERSITIES AND PROFESSIONAL ORGANIZATIONS 12 ACROSS THE COUNTRY AND HAS BEEN FOR OVER 100 YEARS. 13 Q AND IS THE STUDY DONE IN THE AREA OF CRIMINOLOGY 14 BROKEN DOWN INTO DIFFERENT FIELDS OR SUB-CATEGORIES? 15 A CORRECT. THE PRIMARY DISTINCTION IS BETWEEN THE 16 CAUSES OF JUVENILE DELINQUENCY OR DEVIANCE OR CRIME OR 17 OFFENDING, A LOT OF PEOPLE FOCUS ON THAT ASPECT, WHAT 18 MOTIVATES PEOPLE TO DO THINGS AND HOW THEY GET CAUGHT UP 19 IN THINGS. AND THE OTHER ASPECT IS STUDYING THE CRIMINAL 20 JUSTICE SYSTEM AND HOW IT RESPONDS TO CRIME OR ACTS OF 21 DEVIANCE OR ALLEGATIONS OF CRIME. AND WITHIN THAT THERE'S 22 SPECIALIZATION OF DIFFERENT INSTITUTIONS OF CRIMINAL 23 JUSTICE FROM POLICE TO PROSECUTION, ALL THE WAY TO 24 SENTENCING AND PROBATION, PAROLE. 25 MY AREA OF SPECIALIZATION WITHIN THE FIELD OF 26 CRIMINOLOGY IS THE STUDY OF POLICING AND IN PARTICULAR 27 CRIMINAL INVESTIGATION AND POLICE INTERROGATION. 28 Q NOW THE STUDY OF POLICE INTERROGATION, IS THAT A 24 1 WELL-ESTABLISHED FIELD OF STUDY WITHIN THE CRIMINOLOGY 2 FIELD? 3 A YES, MORE OF A SUB-FIELD OF STUDY. IT'S 4 RECOGNIZED AS ONE AREA OF STUDY. THERE'S BEEN A GREAT 5 DEAL OF SCHOLARSHIPS IN THE FIELD IN THE 20TH CENTURY AND 6 INTO THE 21ST CENTURY, SO IT'S A RECOGNIZED SUB-AREA OF 7 STUDY WITHIN THE BROADER DISCIPLINE OF CRIMINOLOGY. 8 Q WHEN DID STUDY IN THIS AREA, THE STUDY THAT -- 9 THE SCHOLARLY WORK IN THAT AREA, WHEN DID THAT FIRST START 10 TO APPEAR? 11 A THE FIRST STUDY -- APPLIED STUDY IN THE AREA OF 12 INTERROGATION THAT I'VE BEEN ON AND OTHERS HAVE BEEN DATED 13 TO DATE IS 1908. IT WAS QUITE PRIMITIVE BACK THEN. THE 14 FIELD HAS REALLY TAKEN OFF IN THE 1960S AND '70S. AND 15 THEN AS ALL SCIENTIFIC AREAS, SORT OF EVERY DECADE YOU GET 16 MORE SCHOLARSHIPS. LIKE IN THE PREVIOUS DECADE, 1990S, 17 THERE'S REALLY QUITE A LOT OF LITERATURE IN THIS AREA. 18 Q IS THE STUDY OF POLICE INTERROGATION SOMETHING 19 ONLY DONE IN THE UNITED STATES OR IS THERE MORE OF A 20 WORLD-WIDE AREA OF STUDY? 21 A IT'S STUDIED ACROSS THE WORLD BY CRIMINOLOGISTS 22 AS WELL AS SOCIOLOGISTS AND PSYCHOLOGISTS. THE PRIMARY 23 TWO COUNTRIES, THERE ARE ENGLAND AND UNITED STATES, AND 24 THERE'S A GREAT DEAL OF SCHOLARSHIPS IN BOTH THOSE 25 COUNTRIES ABOUT POLICE INTERROGATIONS AND PRACTICES AND 26 CONCESSIONS. 27 Q YOU MENTIONED EARLY STUDIES IN 1908 ARE SOMEWHAT 28 PRIMITIVE? 25 1 A BY TODAY'S STANDARDS. 2 Q HAVE THERE BEEN STUDIES IN THIS AREA THAT HAVE 3 FOLLOWED THE SCIENTIFIC METHOD? 4 A YES. THERE ARE IN THE SOCIAL SCIENCES FIVE 5 DIFFERENT METHODS THAT PEOPLE USE, ALL OF WHICH ARE 6 SCIENTIFIC, ALL OF WHICH HAVE ADVANTAGES AND 7 DISADVANTAGES, SOME OF WHICH MAY BE APPROPRIATE MORE SO IN 8 ONE TYPE OF SITUATION OR ONE TYPE OF STUDY THAN ANOTHER. 9 AND THESE WOULD BE EXPERIMENTAL METHOD, THE OBSERVATIONAL 10 METHOD, INTERVIEWING AS A METHOD, PUBLIC SURVEYS OR 11 SURVEYS, AND THEN ANALYSIS OF DOCUMENTS, OR HISTORICAL OR 12 ARCHIVAL ANALYSIS. 13 AND EACH OF THESE METHODS HAVE BEEN USED IN THIS 14 AREA, SOME WITH MORE OR LESS SUCCESS. AND THEY'RE ALL 15 REGARDED AS SCIENTIFIC METHODS, THOUGH NO METHOD IS 16 PERFECT. AND SOME METHODS ARE MORE GEARED TOWARD 17 PARTICULAR TYPES OF QUESTIONS OR AREAS OF STUDY THAN 18 OTHERS. 19 Q STILL TALKING ABOUT THE AREA OF STUDY INCLUDING 20 POLICE INTERROGATION AND COERCION, HAVE THERE BEEN 21 PUBLISHED PEER REVIEWED STUDIES ON THAT PARTICULAR TOPIC? 22 A YES, MORE BROADLY ON INTERROGATION AND CONFESSION 23 DEALING WITH ASPECTS OF COERCION; BUT, YES, THERE'S A 24 GREAT DEAL OF LITERATURE ON THIS TOPIC. THERE'S A 25 TEXTBOOK, COUPLE OF THEM, BUT THE LEADING ONE PUBLISHED IN 26 1992 AND THE SECOND EDITION OF WHICH IS GOING TO COME OUT 27 ANY MONTH NOW HAS A BIBLIOGRAPHY OF ALMOST 1,000 ARTICLES. 28 WHEN THE NEW EDITION COMES OUT NOW TEN YEARS LATER, I'M 26 1 SURE IT WILL COME OUT THIS YEAR SOMETIME OR EARLY NEXT 2 YEAR, IT MAY HAVE MORE ARTICLES IN THE BIBLIOGRAPHY. 3 Q IS THE STUDY OF POLICE INTERROGATION AND 4 CONFESSION CONSIDERED TO BE A VALID AND LEGITIMATE 5 SUB-FIELD OF STUDY WITHIN THE SOCIAL SCIENCES? 6 A IT IS. THAT'S WHY PEOPLE DO RESEARCH ON IT AND 7 PEOPLE TEACH CLASSES ON IT. THAT'S WHY TEXTBOOKS ARE 8 WRITTEN AND ENCYCLOPEDIAS ARE WRITTEN, ARTICLES ARE 9 PUBLISHED, PRESENTATIONS ARE MADE. SO IT'S A VALID AND 10 LEGITIMATE AREA OF STUDY, ACADEMIC SPECIALIZATION. 11 Q NOW I IMAGINE, AS IN ANY FIELD OF STUDY, THERE 12 ARE SOME EXPERTS WHICH ARE THE BEST, MOST EDUCATED, MOST 13 KNOWLEDGEABLE EXPERT IN THAT FIELD; WOULD YOU AGREE? 14 A TYPICALLY, YEAH, OR THE MOST VISIBLE EXPERTS, 15 SOME WHO HAVE PUBLISHED MORE THAN OTHERS, CORRECT. 16 Q ARE THERE TWO EXPERTS IN YOUR FIELD THAT ARE THE 17 PREEMINENT EXPERTS -- 18 MR. FAULDER: OBJECTION. RELEVANCE. 19 MR. J. PETERSEN: IT GOES TO QUALIFICATION. 20 MR. FAULDER: HOW DOES IT GO TO HIS QUALIFICATION 21 IF THERE ARE OTHER EXPERTS? 22 THE COURT: OBJECTION'S SUSTAINED. 23 MR. J. PETERSEN: OKAY. I'LL ASK IT ANOTHER WAY. 24 Q (BY MR. J. PETERSEN) ARE YOU ONE OF THE TWO 25 EXPERTS IN YOUR FIELD OF STUDY? 26 MR. FAULDER: OBJECTION, YOUR HONOR. 27 THE COURT: IT'S OVERRULED. 28 THE WITNESS: I WOULD SAY I'M ONE OF THE THREE 27 1 LEADING EXPERTS. THE OTHER TWO BEING RICHARD OFSHE, 2 O-F-S-H-E, WHO'S A PROFESSOR OF SOCIOLOGY AT U.C. BERKELEY 3 AND THEN SAUL KASSIN, K-A-S-S-I-N, WHO IS A PROFESSOR OF 4 PSYCHOLOGY AT WILLIAMS COLLEGE IN MASSACHUSETTS. 5 Q (BY MR. J. PETERSEN) AND LET'S TALK ABOUT 6 CONFESSIONS AND VOLUNTARINESS. IS THERE ANY SERIOUS 7 DISPUTE THAT CERTAIN POLICE INTERROGATION PRACTICES CAN 8 AND DO PRODUCE INVOLUNTARY CONFESSIONS? 9 A NO. 10 Q AND IS THIS SOMETHING THAT IS UNIVERSALLY 11 ACCEPTED BY THOSE SCHOLARS WHO DO STUDY POLICE 12 INTERROGATION AND COERCION? 13 A YES. TO MY KNOWLEDGE, THERE'S NO DISPUTE ABOUT 14 THIS. 15 Q AND IF THERE'S NO DISPUTE WHAT ARE THE STUDIES 16 THAT ARE DONE IN THIS AREA ABOUT? IF EVERYONE AGREES TO 17 THAT, WHAT ARE THE STUDIES FOR? 18 A THE STUDIES ARE TO BETTER UNDERSTAND HOW 19 INTERROGATION WORKS AS A PSYCHOLOGICAL PROCESS, THE 20 TECHNIQUES THAT ARE USED, WHY THEY'RE EFFECTIVE OR NOT 21 EFFECTIVE, HOW THEY INDUCE CONFESSIONS AND COMPLIANCE, GET 22 PEOPLE TO SAY THINGS THAT ARE AGAINST THEIR SELF 23 INTEREST. SOME STUDIES MAY BE MORE HISTORICAL, SOME MORE 24 PSYCHOLOGICAL, SOME MAY BE MORE FOCUSED ON THE RULES LIKE 25 MIRANDA, OTHERS TO ACTUAL BEHAVIOR AND INTERACTION. SO 26 IT'S -- THE STUDIES ARE ABOUT THE PROCESS AND THE 27 PSYCHOLOGICAL PROCESS IN PARTICULAR OF INTERROGATION AND 28 HOW WE MOVE PEOPLE OR HOW PEOPLE GET MOVED FROM DENIAL TO 28 1 ADMISSION, ARE MADE TO MAKES CONFESSIONS, VOLUNTARY AS 2 WELL AS INVOLUNTARY, AS WELL AS TRUE AND FALSE. 3 Q FOCUSING ON INVOLUNTARY CONFESSIONS, ARE SOME OF 4 THE INVOLUNTARY CONFESSIONS TRUE? 5 A YES. 6 Q WHAT IS CONFESSED TO IS TRUE? 7 A YES. 8 Q WHETHER OR NOT AN INTERROGATION IS COERCIVE AND 9 WHETHER OR NOT THE RESULTING STATEMENT IF ONE IS MADE IS 10 INVOLUNTARY, IS AN INDEPENDENT -- FROM A RESEARCHER'S 11 POINT OF VIEW, INDEPENDENT QUESTION FROM WHETHER OR NOT 12 IT'S RELIABLE OR FALSE? 13 A YOU CAN HAVE A COERCIVE INTERROGATION PROCEEDING 14 BOTH RELIABLE AS WELL AS UNRELIABLE, TRUE AS WELL AS 15 FALSE, OR A NON-COERCIVE INTERROGATION AS WELL. 16 Q NOW, THE OPPOSITE WOULD ALSO BE TRUE, THAT SOME 17 INVOLUNTARY CONFESSIONS ARE ALSO FALSE, SOME TRUE, SOME 18 FALSE, JUST THAT'S AN INDEPENDENT AREA OF CONSIDERATION? 19 A CORRECT. THEY MAY BE RELATED IN THAT COERCIVE 20 POLICE METHODS MAY HAVE BEEN THE CAUSE OF EITHER RELIABLE 21 OR UNRELIABLE STATEMENTS, CAUSING THE PERSON TO SAY WHAT 22 HE OR SHE DID, BUT THEY ARE DISTINCT. 23 Q DOES THE COERCIVENESS OF AN INTERROGATION -- I'LL 24 WITHDRAW THAT QUESTION. 25 ARE THERE -- AGAIN FOCUS ON THE AREA OF STUDY OF 26 POLICE INTERROGATION PRACTICES AND COERCION, ARE THERE 27 ESTABLISHED FACTORS WHICH ARE KNOWN TO INFLUENCE THE 28 DECISION-MAKING OF A SUSPECT? 29 1 A YES, THERE ARE ESTABLISHED TECHNIQUES AND 2 ANALYSES OF THOSE TECHNIQUES, PSYCHOLOGICAL ANALYSES 3 ANALYZING WHICH ONES WORK AND WHERE THEY WORK AND HOW THEY 4 WORK AND WHAT THE PROCESS IS MEANT TO ACCOMPLISH THROUGH 5 THE USE OF THESE TECHNIQUES AND FACTORS. 6 Q AND THERE'S A GENERAL AGREEMENT AMONG THE 7 SCHOLARS IN YOUR FIELD AS TO WHAT THESE FACTORS ARE? 8 A YES. 9 Q AND IS THERE ANY SERIOUS DISPUTE THAT THESE 10 FACTORS DO IN FACT LEAD TO COERCED CONFESSIONS? 11 A THERE'S NO DISPUTE THAT SOME INTERROGATION 12 TECHNIQUES CAN LEAD TO COERCED AND INVOLUNTARY STATEMENTS 13 OR CONFESSIONS, YES. NOT THAT THE INTERROGATION'S 14 NECESSARILY COERCIVE OR THAT ALL TECHNIQUES ARE COERCIVE, 15 BUT THAT SOME TECHNIQUES IN PARTICULAR ARE COERCIVE AND 16 REASONS WHY THEY'RE COERCIVE AND CAN LEAD TO INVOLUNTARY 17 STATEMENTS. 18 Q LET'S TALK FOR A MOMENT ABOUT THE INTERROGATION 19 PROCESS. 20 NOW IS THERE A CERTAIN PROCESS THAT IS SORT OF 21 THE FORMULA FOR CONDUCTING AN INTERROGATION? 22 A THE GOAL OF AN INTERROGATION IS TO MOVE A SUSPECT 23 WHO THE POLICE BELIEVE ARE GUILTY OF A CRIME FROM DENIAL 24 WHICH THEY ANTICIPATE SINCE IT'S NOT IN THE SELF INTEREST 25 OF THE SUSPECT TO CONFESS TO ADMISSION. AND SO THE 26 PROCESS IS GEARED TOWARD CHANGING A SUSPECT'S PERCEPTION 27 OF HIS SITUATION AND WHAT'S IN HIS SELF INTEREST TO 28 OVERCOME OR BREAK THE SUSPECT'S RESISTANCE AND DENIAL AND 30 1 GET THE SUSPECT TO MAKE THE ADMISSION THAT THE 2 INTERROGATOR IS LOOKING FOR WHICH IS THOUGHT TO BE AGAINST 3 THE SUSPECT'S SELF INTEREST. 4 THE PSYCHOLOGICAL PROCESS FROM A SCHOLAR'S POINT 5 OF VIEW SIMPLIFIED BREAKS DOWN TO TWO CONCRETE STEPS AND 6 ALL THE TECHNIQUES OF INTERROGATION -- MAJOR TECHNIQUES 7 FIT INTO ONE OF THESE TWO STEPS. THE FIRST IS TO CONVINCE 8 A SUSPECT THAT THEY'RE CAUGHT, THEIR SITUATION IS HOPELESS 9 AND NO POINT OF RESISTING THE ACCUSATION THAT THEY 10 COMMITTED THIS CRIME. AND IF THAT IS SUCCESSFUL, THE 11 SUSPECT SHOULD NO LONGER BE CONFIDENT IN ASSERTIONS OR 12 DENIALS. 13 AND THE SECOND STEP IS TO OFFER THE SUSPECT 14 INDUCEMENTS OR REASONS WHY IT'S IN THEIR SELF INTEREST TO 15 CONFESS WHY THEY WOULD BE BETTER OFF CONFESSING AS TO NOT 16 CONFESSING, DENYING, REMAINING SILENT, WHATEVER THEY'RE 17 SAYING OR DOING THAT'S NOT MAKING AN ADMISSION. AND SO 18 TYPICAL INTERROGATION MOVES THROUGH TECHNIQUES WHOSE 19 PURPOSE ARE TO CONVINCE THEM THAT THEY'RE CAUGHT, NO WAY 20 OUT, YOU'RE STOPPED, YOU'RE POWERLESS. AND, SECONDLY, 21 GIVEN THIS STATE OF AFFAIRS WITH ALL THIS EVIDENCE AGAINST 22 YOU, FOR EXAMPLE, YOU'RE BETTER OFF BY CONFESSING HERE, 23 ARE ALL THE REASONS WHY YOU'RE BETTER OFF, WHY IT'S IN 24 YOUR SELF INTEREST. 25 NOW SOMETIMES AN INTERROGATION ISN'T AS CLEAN AS 26 THE ANALYTICAL MODEM I'VE JUST PUT FORWARD SUGGESTS. THE 27 INTERROGATOR JUMPS AROUND OR SOME OF THE TECHNIQUES ARE -- 28 INVOLVE THE FIRST STEP. AND THE SECOND STEP THERE'S FEWER 31 1 OF THEM, BUT THIS IS ANALYTIC OR PSYCHOLOGICAL MODEM OF 2 HOW TO UNDERSTAND THE PSYCHOLOGY OF INTERROGATION IN A 3 MINUTE OR LESS. 4 Q AND WHEN YOU ARE STUDYING INTERROGATION AND 5 COERCION, IS IT PART OF WHAT YOU DO AS A SOCIAL SCIENTIST 6 TO MAKE JUDGMENTS AS -- LIKE THIS IS A TECHNIQUE THAT IS 7 GOOD OR THIS IS A TECHNIQUE THAT IS BAD? DO YOU MAKE 8 MORAL JUDGMENTS LIKE THAT? 9 A I TRY NOT TO MAKE MORAL JUDGMENTS, NO. AS SOCIAL 10 SCIENTIST WHAT I'M INTERESTED IN KNOWLEDGE AND STUDY OF 11 BEHAVIOR AND WHAT WORKS AND WHAT DOESN'T WORK. SOMETIMES 12 PEOPLE THINK I'M MAKING MORAL JUDGMENTS. I'M NOT. I 13 THINK INTERROGATION IS LEGITIMATE AND IMPORTANT. AND 14 SOMETIMES IN MY RESEARCH I'LL WRITE ABOUT COERCIVE OR 15 IMPROPER TECHNIQUES, AND I DON'T MEAN TO BE MAKING A MORAL 16 JUDGMENT THERE SO MUCH AS DESCRIBING WHAT TECHNIQUES WERE 17 USED AND WHY THEY MIGHT HAVE ACCOMPLISHED CERTAIN ENDS. 18 OTHER TIMES I'LL BE CALLED TO TESTIFY EITHER AT A 19 PRETRIAL HEARING OR TRIAL OR POST-TRIAL ON POST CONVICTION 20 PROCEEDINGS AND MIGHT BE ASKED TO MAKE CERTAIN JUDGMENTS 21 ABOUT A PARTICULAR INTERROGATION. BUT GENERALLY NO. I 22 DON'T SEE MY ROLE AS MAKING MORAL JUDGMENTS SO MUCH AS 23 DOING RESEARCH AND TRYING TO COME TO AN UNDERSTANDING OF 24 HOW A PARTICULAR PROCESS, IN MY CASE, INTERROGATION AND 25 CONFESSION WORK. 26 Q AND THROUGH THE COURSE OF YOUR STUDY, HAVE YOU 27 DEVELOPED ANY PERSONAL FEELINGS ABOUT THE PROCESS OF 28 INTERROGATION? 32 1 A WELL, I'VE TRIED TO BE PROFESSIONAL AND 2 OBJECTIVE. I MEAN THERE ARE TIMES WHEN I REVIEW 3 INTERROGATIONS WHETHER FOR RESEARCH WHEN, YOU KNOW, I 4 MIGHT GET UPSET OR MIGHT BE SURPRISED OR I MIGHT BE 5 IMPRESSED. SO THERE ARE TIMES WHEN I DO HAVE PERSONAL 6 REACTIONS TO WHAT I STUDY OR I REVIEW, BUT I DON'T SEE 7 MYSELF AS PRO OR ANTI INTERROGATION. I DESCRIBED EARLIER 8 I JUST GOT BACK FROM THREE DAYS OF TRAINING AT A SHERIFF'S 9 OFFICE IN FLORIDA. EVERY TIME I'VE BEEN ASKED TO HELP OUT 10 LAW ENFORCEMENT, I HAVE. OBVIOUSLY I DO A LOT OF OR -- I 11 HAVE TESTIFIED A NUMBER OF TIMES IN COURT, TYPICALLY FOR 12 THE DEFENSE, BUT I DON'T SEE MYSELF AS TAKING ONE SIDE OR 13 ANOTHER SIDE. 14 Q YOU MENTIONED THAT THE INTERROGATION PROCESS IS A 15 TWO-STAGE PROCESS AND YOU TOLD US BASICALLY THE FIRST 16 STAGE IS TO MAKE A PERSON FEEL THAT THEY ARE HOPELESS, 17 THAT THEY'RE -- 18 A THAT THEY'RE CAUGHT. THEY'RE CAUGHT AND THERE'S 19 NO WAY OUT. AND RESISTANCE IS POINTLESS, THAT THEIR 20 SITUATION IS HOPELESS. TYPICALLY BECAUSE THERE'S SOME OF 21 EVIDENCE AGAINST THEM BECAUSE THE INTERROGATOR IS NOT 22 BUYING OR WILL NOT ACCEPT DENIALS OR THEIR ASSERTION OF AN 23 ALIBI. 24 Q THE SECOND STAGE IS BASICALLY OFFERING THEM 25 INDUCEMENTS OR THREATS TO GET THEM TO DO WHAT THE OFFICER 26 WANTS THEM TO DO, WHICH IS SAY WHAT THE OFFICER THINKS IS 27 WHAT HAPPENED? 28 MR. FAULDER: OBJECTION. MISSTATES THE EVIDENCE. 33 1 MR. J. PETERSEN: YOUR HONOR, HE'S AN EXPERT. I 2 BELIEVE IT'S A LEGITIMATE QUESTION TO AN EXPERT. 3 MR. FAULDER: YOU CAN'T MISSTATE THE EVIDENCE. 4 MR. J. PETERSEN: YOUR HONOR, AS AN EXPERT, IF 5 I'M WRONG, HE CAN TELL ME. 6 THE COURT: WELL, IS IT IN THE FORM OF A 7 HYPOTHETICAL? 8 MR. FAULDER: IT DIDN'T SOUND LIKE IT. 9 MR. J. PETERSEN: I CAN REPHRASE. IT'S NOT 10 IMPORTANT. 11 THE COURT: ALL RIGHT. 12 Q (BY MR. J. PETERSEN) THE SECOND STAGE, IF YOU 13 COULD BRIEFLY DESCRIBE THAT IN ONE SENTENCE AGAIN. 14 A IT WOULD BE OFFERING OR PERSUADING A SUSPECT THAT 15 IT'S IN THEIR SELF INTEREST TO CONFESS, THAT THE BENEFITS 16 OF CONFESSING OUTWEIGH THE CONSEQUENCES, TYPICALLY THROUGH 17 USING WHAT RESEARCHERS CALL INDUCEMENTS OR INCENTIVES TO 18 CONFESS. 19 Q AND IS THERE -- ASIDE FROM INDUCEMENTS, IS THERE 20 ANOTHER SIDE, A FLIP SIDE TO INDUCEMENTS? DO WE SOMETIMES 21 OFFER THREATS, FOR INSTANCE? 22 A YEAH. WELL, THE WAY WE CHARACTERIZE -- CLASSIFY 23 INDUCEMENTS IS ALONG A CONTINUUM FROM MAYBE THE LOW END OF 24 KIND OF INDUCEMENTS BEING SUGGESTED THAT ARE NOT TANGIBLE, 25 MAYBE APPEALS TO RELIGION OR IT'LL MAKE YOU FEEL BETTER, 26 THE TRUTH WILL SET YOU FREE. AND AS YOU MOVE ALONG THE 27 CONTINUUM TO A POLICY THAT FOCUSES ON THE CRIMINAL JUSTICE 28 SYSTEM AND THE FACT THAT THE SUSPECT IS BEING PROCESSED IN 34 1 THE CRIMINAL JUSTICE SYSTEM AND CONSEQUENCE TO COOPERATION 2 OR AT LEAST DENIALS OR REMORSE OR ACCEPTING 3 RESPONSIBILITY. 4 AND THEN TO THE FAR END OF THE CONTINUUM, THE 5 MOST TANGIBLE INDUCEMENTS WOULD BE EITHER IMPLIED OR 6 EXPLICIT THREATS OR PROMISES OR ATTEMPTS TO NEGOTIATE 7 BETTER OUTCOME FOR THE SUSPECT OR MAKE A SUSPECT THINK 8 THERE'S A BETTER OUTCOME IF HE COOPERATES WITH THE POLICE 9 AND CONFESSES AND, CONVERSELY, A WORSE OUTCOME IF HE FAILS 10 TO COOPERATE AND CONTINUES TO DENY ANY INVOLVEMENT IN THE 11 CRIME. 12 Q NOW, THE FIRST STAGE THAT YOU MENTIONED, THE 13 DEVELOPMENT OF HOPELESSNESS, IS THAT A PROCESS THAT IN 14 YOUR OPINION PRODUCES COERCED CONFESSIONS? 15 A TYPICALLY NOT. THE TECHNIQUES INVOLVED IN THAT 16 STAGE OF INTERROGATION ARE PRIMARILY ACCUSATION, CUTTING 17 OFF OF DENIALS, ATTACKING THE SUSPECT'S ALIBI AND 18 PRESENTING EITHER TRUE OR FALSE EVIDENCE OF THE PERSON'S 19 GUILT AND TRYING TO CONVINCE THEM THAT THEIR ASSESSMENT OF 20 THE SITUATION IS WRONG AND NO WAY OF ESCAPING THE FACT 21 THAT EVERYBODY IS GOING TO BELIEVE THEY'RE GUILTY. 22 TYPICALLY IN THAT STAGE, THEY'RE JUST CONVINCING SOMEBODY 23 THEIR SITUATION IS HOPELESS. NOTHING ABOUT THAT IS 24 TYPICALLY REGARDED AS COERCIVE. I SUPPOSE IT COULD BE, 25 BUT THEY AREN'T TECHNIQUES I WOULD IDENTIFY IN THAT STAGE. 26 Q IS LYING TO A SUSPECT ABOUT HIS FATE OF THE 27 EVIDENCE, LIKE SAYING FOR INSTANCE SAY WE'VE GOT YOUR 28 FINGERPRINTS OR WE FOUND YOUR SEMEN OR WE FOUND YOUR HAIR, 35 1 IS THAT PART OF THE FIRST STAGE OR IS THAT PART OF SOME 2 OTHER STAGE? 3 A YES, THAT AGAIN GOES TO GOAL OF CONVINCING 4 SOMEBODY THEY'RE CAUGHT AND THEIR SITUATION IS HOPELESS 5 AND NO WAY OUT. AND, OF COURSE, LYING ABOUT EVIDENCE IS 6 LEGAL. AND IT'S AGAIN MEANT TO CONVINCE THE SUSPECT THAT 7 THERE'S NO POINT IN RESISTING, TO BREAK THEIR CONFIDENCE 8 IN MAKING DENIALS TO THESE ASSERTIONS. 9 Q NOW THE SECOND STAGE. YOU'VE DESCRIBED SOME OF 10 THE THINGS THAT HAPPENED IN THE FIRST STAGE, SOME OF THE 11 TECHNIQUES THAT ARE USED. UNDERMINING A SUSPECT'S ALIBI, 12 FOR INSTANCE? 13 A CORRECT. 14 Q CUTTING OFF DENIALS. YOU GAVE US SORT OF A SHORT 15 LAUNDRY LIST. IS THERE A LIST THAT WOULD HAPPEN IN THE 16 SECOND STAGE? 17 A I THINK I'VE DESCRIBED THE SECOND STAGE INVOLVES 18 INDUCEMENTS WHERE APPEALS -- I THINK I DESCRIBED THE THREE 19 CATEGORIES TYPICALLY APPEALS TO MORALITY OR CONSCIENCE OR 20 THE BENEFITS OF TELLING THE TRUTH TO THE SOUL, OR 21 PERSONALITY, OR THE COMMUNITY; AND THEN THE SECOND SET OF 22 APPEALS AND THERE'RE ENDLESS VARIATIONS UNDER THESE 23 CATEGORIES, WOULD BE FOCUSING SOMEBODY ON THE FACT THAT 24 THEY'RE PART OF THE CRIMINAL JUSTICE SYSTEM AND THERE ARE 25 OTHER FACTORS IN THAT SYSTEM, POLICE, PROSECUTORS, JUDGES, 26 JURIES, AND THAT THEY MAY RECEIVE IN A GENERAL WAY MORE 27 FAVORABLE CONSIDERATION OR LESS FAVORABLE CONSIDERATION OR 28 MAY BE PERCEIVED AT A CERTAIN WAY DEPENDING WHETHER THEY 36 1 ADMIT OR DENY, SHOW REMORSE, FAIL TO SHOW REMORSE, 2 COOPERATE OR NOT. 3 AND, FINALLY, THE CATEGORY THAT I WAS REFERRING 4 TO EARLIER, THE IMPLICIT OR EXPLICIT DEAL-MAKING OR 5 NEGOTIATION OR WHAT IN LAW WOULD BE CALLED PROMISES OF 6 LENIENCY AND THREATS OF HARM. OR SOME INDUCEMENTS MIGHT 7 SUGGEST AN EXPLICIT BENEFIT IN TERMS OF A LOWER CHARGE, A 8 LIGHTER SENTENCE, BEING ABLE TO LEAVE AN INTERROGATION 9 VERSUS NOT BEING ABLE TO LEAVE, GOING TO JAIL OR NOT 10 GETTING A PARTICULAR SENTENCE VERSUS NOT GETTING A 11 PARTICULAR SENTENCE. SO YOU SEE THESE INDUCEMENTS RUN THE 12 GAMUT IN THOSE THREE CATEGORIES. 13 Q IS THERE A CATEGORY OF INDUCEMENTS CALLED 14 SYSTEMIC INCENTIVES? 15 A THAT WAS THE MIDDLE CATEGORY THAT I WAS TALKING 16 ABOUT. 17 Q THE ONE TALKING TO THE PERSON ABOUT THEIR 18 POSITION IN THE CRIMINAL JUSTICE SYSTEM AND IMPLYING 19 THROUGH WHATEVER STATEMENTS THEY WILL RECEIVE SOME SORT OF 20 BENEFIT DOING WHAT THE OFFICER WANTS THEM TO DO? 21 A YEAH, IN VERY GENERAL WAYS. IF YOU DON'T SAY 22 THIS, I CAN'T TESTIFY ON YOUR BEHALF. OR IF YOU -- WHAT'S 23 THE JUDGE AND JURY GOING TO THINK IF YOU CONTINUE TO LIE. 24 THEY'RE MEANT TO FOCUS THE SUSPECT ON THE FACT 25 THAT HIS CASE WILL GO THROUGH A PROCESS, THE CRIMINAL 26 JUSTICE PROCESS, AND PEOPLE WILL BE FORMING JUDGMENTS AND 27 PERCEPTIONS, PEOPLE LIKE JUDGES AND JURIES AND 28 PROSECUTORS. ALTHOUGH, TYPICALLY, THE SYSTEMIC INCENTIVES 37 1 ARE NOT EXPLICIT ABOUT WHAT PEOPLE WILL SAY OR DO, JUST 2 MEANT TO GET THE SUSPECT TO THINK THERE ARE CONSEQUENCES 3 TO WHAT I'M SAYING AND I MIGHT WANT TO IMPRESS THE PEOPLE 4 DOWN THE LINE WHO ARE GOING TO MAKE JUDGMENTS ABOUT ME. 5 Q JUDGMENTS ABOUT HIM THAT WILL AFFECT HIS ULTIMATE 6 OUTCOME? 7 A CORRECT. 8 Q AND IS THERE SORT OF A MORAL APPEALS, AGAIN WE'RE 9 IN THE SECOND STAGE -- I THINK YOU CALL IT A SECOND 10 STAGE -- YEAH, INCENTIVE STAGE, MORAL APPEALS AT THE LOW 11 END AND SYSTEMIC INCENTIVES AND SOMETHING ELSE CALLED A 12 HIGH-END INCENTIVE? 13 A CORRECT. THIS IS A LONG -- A CONTINUA OF TYPES 14 OF APPEALS OR INDUCEMENTS THAT THEY USE FROM THE MORAL TO 15 MORAL FOCUS ON CRIMINAL JUSTICE SYSTEM GENERALLY TO THEN 16 THE HIGH END WHICH I WAS REFERRING TO EARLIER AS EXPLICIT 17 NEGOTIATIONS OR IMPLICIT NEGOTIATIONS ABOUT PUNISHMENT OR 18 CHARGING OR SENTENCING OR BEING ABLE TO GO HOME VERSUS NOT 19 GO HOME, WHERE THE IMPLICATION OR EXPLICIT TECHNIQUE IS TO 20 GET THE SUSPECT TO BELIEVE THEY'RE GOING TO RECEIVE SOME 21 KIND OF POLICE OR PROSECUTORIAL OR JUDICIAL LENIENCY OR 22 LIGHTER CHARGE OR SENTENCE OR PUNISHMENT IN EXCHANGE FOR 23 COOPERATION. AND IF THEY FAIL TO COOPERATE, THEY FAIL TO 24 MAKE THE ADMISSION, THEY WILL CONVERSELY RECEIVE HIGHER 25 CHARGE OR LONGER SENTENCE OR HARSHER TREATMENT OR WON'T BE 26 ABLE TO GO HOME. OR THEY'RE ALLEGED CRIME WILL BE FRAMED 27 IN A WAY THAT WILL CAUSE PEOPLE TO BE MORE PUNITIVE WHEN 28 SENTENCING THEM OR MAKING DECISIONS ABOUT THEIR FUTURE. 38 1 Q IS THERE -- I UNDERSTAND IT'S ALONG A CONTINUA, 2 SORT OF THE SYSTEMIC INCENTIVE WILL BLEND INTO THE HIGH 3 END OF -- IS THERE A WAY TO DISTINGUISH THEM? SEEMS MORAL 4 APPEALS ARE FAIRLY EASY. I HAVE DIFFICULTY DISTINGUISHING 5 THE SECOND TWO. 6 A I THINK THEY BLUR INTO ONE ANOTHER, BUT I WOULD 7 SAY THE DISTINCTION IS THE HIGH END INCENTIVE, THE 8 TECHNIQUES ARE REALLY ABOUT A DEAL ON THE TABLE. AND SO 9 THE SYSTEMIC APPEALS ARE TO FOCUS THE SUSPECT ON THEIR 10 PART OF THE JUSTICE CRIMINAL SYSTEM AND BENEFIT TO ONE ACT 11 OR ANOTHER, BUT IT'S NOT REALLY. YOU GET THE IDEA THERE'S 12 A DEAL ON THE TABLE AND IF YOU TAKE -- IF YOU CONFESS, YOU 13 GET THE BENEFITS OF THE DEAL. IF YOU DON'T, YOU DON'T GET 14 THE BENEFITS OF THE DEAL. 15 AND THAT'S THE DISTINCTION. THE HIGH END 16 INCENTIVES ARE ABOUT IMPLICIT OR EXPLICIT DEALMAKING AND 17 TANGIBLE BENEFITS IN TERMS OF MORE OR LESS PUNISHMENT OR 18 HIGHER OR LOWER CHARGING OR BEING ABLE TO GO HOME AND NOT 19 BEING ABLE TO GO HOME, BEING FREE VERSUS BEING DETAINED. 20 WHERE THE SYSTEMIC INDUCEMENTS ARE GENERALLY FOCUSING A 21 PERSON GENERALLY ON THE CRIMINAL JUSTICE SYSTEM. 22 Q ARE ALL SYSTEMIC INCENTIVES -- ALL OF THOSE BE 23 CONSIDERED COERCIVE? 24 A NO. TYPICALLY NOT UNLESS THEY COMMUNICATE THE 25 MESSAGE THAT THERE'S A PROMISE OR OF LENIENCY OR THREAT OF 26 HARM. TYPICALLY SYSTEMIC INDUCEMENTS ARE NOT. THEY'RE 27 VAGUELY STATED. THEY'RE NOT REGARDED AS COERCIVE. IT'S 28 WHEN WE'RE MOVED TO WHAT'S CALLED HIGH END INCENTIVES THE 39 1 IMPLICIT OR EXPLICIT NEGOTIATIONS OR HIGHER OR LOWER 2 CHARGING, HARSHER OR LESS HARSH PUNISHMENT, MORE OR LESS 3 SENTENCING, FREEDOM VERSUS CONTINUED DETENTION. THAT'S 4 WHAT RESEARCHERS TYPICALLY REGARD AS COERCIVE, NOT 5 TYPICALLY THE SYSTEMIC INDUCEMENTS. 6 Q IS THERE A TECHNIQUE KNOWN AS A THEME OR 7 MINIMIZATION, MAXIMIZATION? 8 A A THEME IS A TECHNIQUE THAT COMES OUT THE REID 9 METHOD WHICH I DISCUSSED EARLIER. IT'S CENTRAL TO ALL 10 POLICE INTERROGATION. AND WHAT IT MEANS IS INVENTING A 11 SCENARIO TO JUSTIFY OR EXCUSE THE ACTION. AND SO WHAT 12 POLICE DO AS PART OF INTERROGATION, THEY PORTRAY A 13 PARTICULAR EVENT, WHETHER IT'S A ROBBERY OR EMBEZZLEMENT 14 OR BURGLARY OR ARSON, IN WAYS THAT ARE -- EITHER MINIMIZE 15 THE SUSPECT'S CULPABILITY OR MAKE IT APPEAR LESS SERIOUS. 16 AND THAT'S WHAT THEME IS AND A VERY COMMON TECHNIQUE THAT 17 POLICE USE. AND IT'S ESSENTIALLY A KIND OF INDUCEMENT, 18 DEPENDING ON HOW THEY USE IT, WHAT THEY USE TO IMPLORE THE 19 SUSPECT TO CONFESS, TO MAKE THE SUSPECT EITHER THINK THAT 20 THERE AREN'T VERY SERIOUS CONSEQUENCES TO CONFESS, OR IF 21 THE SUSPECT IS BETTER OFF TO CONFESS AS OPPOSED TO DENYING 22 THE ACCUSATION. 23 Q IS THE USE OF THE THEME TECHNIQUE -- THAT'S 24 SOMETHING THAT IS REGARDED BY THOSE IN THE FIELD OF STUDY 25 OF INTERROGATION PRACTICES AS COERCIVE? 26 A NOT NECESSARILY. MANY THEMES -- IN FACT MOST 27 THEMES I'VE SEEN ARE NOT COERCIVE. IT WOULD BE COERCIVE 28 IF IT SENT A MESSAGE, IF IT COMMUNICATED TO THE SUSPECT 40 1 THAT HE WILL RECEIVE A DEAL, A BENEFIT, LOWER CHARGE, 2 LOWER SENTENCE, LOWER PUNISHMENT IN EXCHANGE; AND THEN IF 3 HE FAILS TO CONFESS, A HARSHER PUNISH, HIGHER CHARGE, 4 LENGTHIER SENTENCE, DETENTION AS OPPOSED TO FREEDOM. WHEN 5 IT COMMUNICATES EITHER IMPLICITLY OR EXPLICITLY THAT 6 MESSAGE OF LENIENCY OFFER OR HARSHER TREATMENT THAT 7 RESEARCHERS REGARD IT TO BE COERCIVE. 8 Q THEME MIGHT FALL INTO SYSTEMIC AREA OF HIGH END, 9 DEPENDING ON HOW IT'S USED? 10 A IT DOES FALL INTO THE LOWER END, THERE IS A THEME 11 ABOUT YOU'LL FEEL BETTER BECAUSE GOD WILL FORGIVE YOU AND 12 GET THIS OFF YOUR CHEST AND PEOPLE WILL UNDERSTAND. SO IT 13 COULD BE ANYWHERE ALONG THE CONTINUA THAT I DISCUSSED 14 EARLIER OF INDUCEMENTS TO CONFESSION. 15 Q NOW, IS THERE ANY DISPUTE IN YOUR AREA OF 16 STUDIES, THE SCHOLARS IN THAT AREA, IS THERE ANY DISPUTE 17 AMONG THEM THAT THE HIGH END INCENTIVES THAT ARE OFFERED 18 DURING INTERROGATION RESULT IN COERCED CONFESSIONS? 19 A NO. HIGH END INDUCEMENTS ARE REGARDED AS 20 COERCIVE, PSYCHOLOGICALLY COERCIVE. 21 Q I UNDERSTAND. LET'S TALK ABOUT THE THEME IS 22 PROBABLY THE TECHNIQUE THAT IS MOST GERMANE TO WHAT WE'RE 23 TALKING ABOUT TODAY, BUT IS THERE -- ARE THERE OTHER 24 TECHNIQUES ASIDE FROM A THEME THAT ARE USED IN THE HIGH 25 END INCENTIVE CATEGORY? 26 A THERE MIGHT BE EXPLICIT PROMISES OR EXPLICIT 27 THREATS OR EXPLICIT DEALMAKING GOING ON. ESSENTIALLY BE 28 THE THING THAT LEADS A SUSPECT TO THINK THAT HE'S GOING TO 41 1 RECEIVE MORE OR LESS PUNISHMENT. 2 Q NOW, IF YOU HAVE A SITUATION OR A CASE IN WHICH 3 THERE IS MORE THAN ONE DIFFERENT INTERROGATION TECHNIQUE 4 USED OR COERCIVE TECHNIQUE USED, IS THAT GOING TO HAVE AN 5 ADDITIVE EFFECT OR WHAT KIND OF EFFECT, IF THERE'S 6 REPEATED USE OF COERCIVE TACTICS? 7 A PROBABLY HAVE A CUMULATIVE EFFECT ESPECIALLY THE 8 LONGER THE INTERROGATION. INTERROGATION IS KIND OF 9 GRADUAL AND INCREMENTAL, AND SOMETIMES VERY LONG PROCESS 10 WHERE WHAT HAPPENS IN AN EARLIER PART OF THE INTERROGATION 11 OR LATER PART MAY BUILD ON SOMETHING THAT HAPPENED 12 EARLIER. SO IT IS KEY IF THE LONGER IT GOES AND THE MORE 13 PARTICULAR TECHNIQUES, ESPECIALLY IF THEY'RE COERCIVE 14 TECHNIQUES OR OVERBEARING TECHNIQUES, ARE REPEATED. 15 Q CAN YOU HAVE -- CAN YOU HAVE A COERCED CONFESSION 16 IN A SITUATION WHERE SORT OF MORE MILD FORMS OF COERCION 17 ARE USED BUT THEY'RE USED IN SERIES, PILED ONE UPON 18 ANOTHER? WILL THAT GET YOU TO A STATE OF COERCED 19 CONFESSION OR NOT? 20 A THAT COULD, YES. 21 Q AND IF YOU USE THE SAME COERCIVE TECHNIQUE AND 22 YOU REPEAT IT OVER AND OVER AGAIN IN AN INTERROGATION, IS 23 THAT GOING TO HAVE A CUMULATIVE EFFECT OR IS THAT GOING TO 24 HAVE A SYNERGISTIC EFFECT? 25 A IF THE SUSPECT UNDERSTANDS IT, IT SHOULD HAVE A 26 CUMULATIVE EFFECT. A LOT OF INTERROGATION IS ABOUT 27 REPETITION, NON-COERCIVE INTERROGATION, REPETITION, 28 AGGRESSIVENESS, SOMETIMES COERCIVE TECHNIQUES ARE REPEATED 42 1 OR REUSED IN COMBINATION. 2 Q AND IS THE REASON FOR THE REPETITION SOMETIMES TO 3 MAKE SURE THAT THE SUSPECT UNDERSTANDS THE DEAL BEING 4 OFFERED? 5 A IN TERMS OF HIGH END INDUCEMENT, TYPICALLY YEAH, 6 THE UNDERSTANDING THE DEAL AND GRAVITY OF THE SITUATION. 7 AND OFTENTIMES THE CONTEXT OF THAT IS IF YOU DON'T GO FOR 8 THIS DEAL OR FRAMING OF HOW I, THE INTERROGATOR, I'M 9 SAYING THIS OCCURRED WHICH HAS THE BENEFIT OF LESS 10 PUNISHMENT OR IT ALLOWS YOU TO BE FREE AND GO HOME. IF 11 YOU DON'T GO FOR THAT AND MAKE THE ADMISSION, EVERYBODY 12 ELSE IS GOING TO THINK THIS, PARTICULARLY PEOPLE THAT HAVE 13 GOT POWER AND YOU'RE GOING TO GET ARRESTED AND CHARGED AND 14 WHATNOT. 15 Q NOW, LET'S TALK ABOUT THIS PARTICULAR CASE, THE 16 CASE OF JOHANN SCHMIDT. CAN YOU TELL ME WHAT MATERIALS 17 YOU REVIEWED IN PREPARATION FOR YOUR TESTIMONY HERE TODAY? 18 A I REVIEWED A NUMBER OF MATERIALS, INCLUDING 19 POLICE REPORTS, NOTES AND QUESTIONS THAT WERE WRITTEN OUT 20 FROM THE POLICE REPORTS, THE CHARGING INFORMATION, THE 21 INTERVIEWS OF AMY ANDREWS AND INTERROGATION. THE 22 INTERROGATION, TWO VIDEOTAPES, INTERROGATION OF JOHANN 23 SCHMIDT, VIDEOS OF CRIME SCENE WALK-THROUGHS BY BOTH OF 24 THEM. THE VIDEO OF DR. PODBOY, AND THEN ALSO THE REPORT 25 OF DR. PODBOY. AND I THINK THAT'S IT. 26 Q SO FOCUSING YOUR ATTENTION ON THE INTERROGATION 27 WITH DEPUTY POMA AND FLETCHER, DID YOU REVIEW BOTH THE 28 VIDEOTAPE AND THE TRANSCRIPT OF THAT? 43 1 A CORRECT, TOGETHER. SO I WATCHED THE VIDEOTAPES 2 AS I WAS REVIEWING THE TRANSCRIPT AND FOLLOWING ALONG AND 3 THEN SUBSEQUENT REVIEW OF THE TRANSCRIPT BY ITSELF. 4 Q IS THERE ANY -- OF ALL THE THINGS THAT YOU'VE 5 REVIEWED IN PREPARATION FOR YOUR TESTIMONY, IS THERE ANY 6 ONE THING THAT REALLY STANDS OUT TO YOU AS THE PRIMARY 7 SOURCE THAT YOU RELY ON FOR YOUR OPINIONS? 8 A IT WOULD BE THE INTERROGATION TRANSCRIPT. THAT'S 9 PRIMARILY WHAT I RELY ON. FORTUNATELY IN THIS CASE, 10 THERE'S A RECORD. THERE'S AN OBJECTIVE RECORD OF THE 11 INTERROGATION THAT WENT ON AND SO THERE'S NO NEED FOR ME 12 TO TRY TO RECONSTRUCT THAT RECORD. AND THIS IS WHAT -- 13 THIS IS WHERE I IDENTIFY THE TECHNIQUES AND BASE MY 14 JUDGMENT FOR WHATEVER CONCLUSIONS I COME TO ABOUT ANY 15 QUESTION THAT I'M ASKING ABOUT THE INTERROGATION. 16 Q I'M ASSUMING IT'S GOING TO BE EASIER FOR YOU IF 17 WE GO THROUGH THIS TO USE, INSTEAD OF THE VIDEOTAPE, USE 18 THE TRANSCRIPT; IS THAT RIGHT? 19 A CORRECT. 20 Q AND YOU HAVE THAT WITH YOU THERE? 21 A CORRECT. 22 THE COURT: WE'RE NOW APPROACHING THE NOON HOUR. 23 MAYBE THIS WOULD BE A GOOD TIME TO TAKE THE LUNCH TIME. 24 MR. J. PETERSEN: I THINK IT WOULD BE A VERY GOOD 25 TIME. 26 THE COURT: THANK YOU, SIR. YOU CAN STEP DOWN. 27 WHY DON'T WE RECONVENE AT 1:30 THIS AFTERNOON. 28 WE'LL BE IN RECESS. 44 1 (RECESS TAKEN FROM 11:59 A.M. TO 1:37 P.M.) 2 THE COURT: WE'RE BACK ON THE RECORD IN PEOPLE 3 VERSUS SCHMIDT. MR. SCHMIDT IS PRESENT. ALL COUNSEL ARE 4 PRESENT. WITNESS HAS RESUMED THE STAND. 5 CONTINUING WITH DIRECT. 6 MR. J. PETERSEN: THANK YOU, YOUR HONOR. I THINK 7 WE'RE READY AT THIS POINT TO -- I'M GOING TO OFFER THE 8 C.V. INTO EVIDENCE. I THINK CLERK HAS THAT. 9 THE CLERK: EXHIBIT A MARKED AS EVIDENCE. 10 THE COURT: IS THE MOTION -- 11 MR. J. PETERSEN: I DIDN'T HEAR WHETHER OR NOT 12 THERE WAS GOING TO BE OBJECTION. I DON'T KNOW IF 13 MR. FAULDER HEARD WHAT'S GOING ON. I WAS OFFERING THIS 14 INTO EVIDENCE. 15 MR. FAULDER: I HEARD. THERE'S NO OBJECTION, 16 YOUR HONOR. THANK YOU. 17 THE COURT: IT WILL BE RECEIVED. 18 MR. J. PETERSEN: MAY I GIVE THIS TO YOU NOW? 19 THE COURT: YES. 20 (EXHIBIT A WAS RECEIVED IN 21 EVIDENCE.) 22 Q (BY MR. J. PETERSEN) LET'S GET DOWN TO BUSINESS 23 AND TALK ABOUT THIS CASE, WHAT YOU DID IN THIS CASE. 24 WE'VE TALKED ABOUT THREE DIFFERENT LEVELS ALONG A 25 CONTINUA OF TECHNIQUES THAT CAN BE USED BY LAW 26 ENFORCEMENT, STARTING WITH MORAL APPEALS AND HIGH END 27 INDUCEMENTS. DID YOU FIND ANYTHING LIKE THAT IN THIS 28 CASE? 45 1 A YES. 2 Q AND IS THERE -- I THINK PROBABLY THE EASIEST WAY 3 IS TO GO THROUGH THE TRANSCRIPT. AND WHEN I SAY 4 TRANSCRIPT, I MEAN THE TRANSCRIPT OF THE INTERVIEW OF 5 JOHANN SCHMIDT BY DETECTIVES POMA AND FLETCHER. AND DO 6 YOU HAVE THAT IN FRONT OF YOU? 7 A THERE ARE TWO TRANSCRIPTS. YES, I HAVE THEM BOTH 8 IN FRONT OF ME. 9 Q AND WHAT PAGE SHOULD WE START WITH? WHAT WAS THE 10 FIRST PAGE YOU FOUND SOMETHING NOTEWORTHY ON? 11 A THERE'S A LOT OF DISCUSSION THROUGHOUT THE FIRST 12 INTERROGATION TRANSCRIPT ABOUT EVIDENCE ON MR. SCHMIDT AND 13 HOW THAT EVIDENCE GOT ON MR. SCHMIDT AND A DISPUTE THAT HE 14 SAYS HE HAD WITH SOMEBODY, DESCRIBED IN VERY VAGUE TERMS 15 WITH A PERSON WHO'S UNNAMED. 16 BUT IN TERMS OF THE INDUCEMENTS THAT I WAS 17 TALKING ABOUT AND YOU ASKED ME ABOUT, I THINK WHERE THE 18 PLACE TO REALLY BEGINNING IS THE SECOND INTERROGATION 19 TRANSCRIPT AROUND PAGE ELEVEN. ALTHOUGH PRIOR TO PAGE 20 LEVER, THEY'RE QUESTIONING ABOUT BLOOD ON PANTS, BLOOD ON 21 HIM, FINGERPRINTS ON THE KNIFE. THEY'RE CLEARLY 22 SUGGESTING OR CONFRONTING HIM WITH EVIDENCE THAT SUGGESTS 23 HE'S INVOLVED IN A CRIME. 24 IT'S REALLY AROUND PAGE ELEVEN WHEN THEY TELL HIM 25 ON LINE 16 OR 17 THAT HE MUST BE UNLUCKIEST PERSON IN THE 26 WORLD THAT THEY -- THAT THE INTERROGATION PROPER SO TO 27 SPEAK BEGINS, WHERE THEY TELL HIM THAT HE TOOK A CAR FROM 28 A LADY THAT'S BEEN KILLED. AND THE INCENTIVE -- THE 46 1 APPEALS OR INDUCEMENTS THAT I TALK ABOUT, I MENTIONED 2 BEFORE LUNCH, REALLY BEGIN ON PAGE TWELVE, THE BOTTOM OF 3 PAGE 12, LINE 26 AND 27, WHERE THEY SAY "JOHANN, I THINK 4 YOU NEED TO HELP YOURSELF OUT." AND THEN CONTINUING ONTO 5 PAGE 13, "IF SHE CAME AT YOU AND YOU JUST DEFENDING 6 YOURSELF, I NEED TO KNOW THAT; BUT YOU'RE SITTING THERE 7 DRIVING AROUND A LADY'S CAR THAT WAS MURDERED. OKAY? IF 8 IT HAPPENED -- IF IT WAS A SELF-DEFENSE TYPE THING, THEN 9 LET ME KNOW." 10 THAT IS REALLY THE FIRST SIGNIFICANT POINT IN MY 11 ANALYSIS OF THIS. 12 Q OKAY. NOW, LET ME SORT OF SET THE STAGE, IF I 13 CAN, A LITTLE BIT. THE FIRST TRANSCRIPT, IS IT CORRECT TO 14 SAY THAT THERE IS SORT OF PART OF THE INTERROGATION THAT 15 YOU WOULD DESCRIBE AS TRYING TO BUILD THE FEELING OF 16 HOPELESSNESS IN MR. SCHMIDT, THAT HE'S CAUGHT, NO WAY OUT 17 AND CONFRONT WITH -- 18 MR. FAULDER: OBJECTION. THAT'S LEADING. 19 THE COURT: IT'S WHAT? 20 MR. FAULDER: IT'S LEADING. WITH AN EXPERT 21 THAT'S LEADING ON FACTS RATHER THAN A CONCLUSION OR AN 22 AREA OF EXPERTISE. 23 MR. J. PETERSEN: I'M HAPPY TO REPHRASE IT IF IT 24 BOTHERS MR. FAULDER. 25 THE COURT: ALL RIGHT. 26 Q (BY MR. J. PETERSEN) THE FIRST TAPE, IS THE 27 INTERROGATION ON THE FIRST TAPE TYPICAL INTERROGATION THAT 28 YOU WOULD SEE AS PART OF AN EFFORT TO BUILD A SENSE OF 47 1 HOPELESSNESS IN THE INTERROGATEE? 2 A IT'S A LITTLE BIT MORE INDIRECT THAN THIS 3 INTERROGATION THAT I'VE SEEN. THEY ARE ASKING HIM ABOUT 4 THIS EVIDENCE THAT APPEARS HIGHLY INCRIMINATING. AND HE'S 5 TELLING THE STORY ABOUT IT AND YOU DON'T GET -- I DON'T 6 GET THE SENSE THAT THEY REALLY SORT OF POUNCE UNTIL THE 7 SECOND INTERROGATION; BUT I THINK THEY ARE SETTING THE 8 STAGE BY GETTING THESE VARIOUS PIECES OF EVIDENCE THAT ON 9 THEIR FACE SEEM HIGHLY INCRIMINATING. 10 Q AND IN THE FIRST TAPE, IS IT -- IS MR. SCHMIDT 11 CONFRONTED WITH THE FACT THAT HE'S GOT BLOOD ON HIS PANTS? 12 A THEY ASK HIM, YES. 13 Q AND ON HIS HANDS? 14 A HE'S GOT A CUT ON HIS HAND, BLOOD ON HIM, BLOOD 15 ON HIS HANDS, YEAH. 16 Q ALSO HE'S IN SOMEONE ELSE'S CAR? 17 A I BELIEVE SO. 18 Q AND DOES MR. SCHMIDT HAVE AN EXPLANATION THAT HE 19 HAD GOTTEN INTO -- I FORGET THE WORD HE USED -- BUT INTO 20 SOME SORT OF DISAGREEMENT WITH AN OLD HIGH SCHOOL FRIEND 21 IN EXPLANATION FOR THE CONDITION OF HIS HANDS AND PANTS? 22 MR. FAULDER: AGAIN, OBJECTION. IT'S LEADING. 23 THE DEFENSE ATTORNEY IS TESTIFYING RATHER THAN ASKING A 24 QUESTION. 25 THE COURT: BUT HE CAN WITH AN EXPERT. 26 MR. FAULDER: HE CAN LEAD TO A CERTAIN EXTENT, 27 BUT THIS IS GOING BEYOND WHAT I THINK AN EXPERT IS 28 ALLOWED -- HOW AN EXPERT IS TO BE LED. HE'S SUMMARIZING 48 1 TESTIMONY THAT HAS NOT BEEN SUBMITTED INTO EVIDENCE. 2 MR. J. PETERSEN: YOUR HONOR, THE COURT HAS THE 3 TAPE. 4 THE COURT: THE OBJECTION'S OVERRULED. 5 THE WITNESS: MY RECOLLECTION IS THAT THE -- HE 6 USES THE WORD DISPUTE IN THE FIRST INTERROGATION THAT HE 7 HAD, AND THAT THE REFERENCE TO HIGH SCHOOL FRIEND WAS IN A 8 POLICE REPORT AND THAT'S HIS EXPLANATION FOR -- AT THIS 9 POINT IN THE INTERROGATION, THE FIRST VIDEOTAPE -- HOW HE 10 HAS THIS BLOOD ON HIM AND THIS CUT. 11 Q (BY MR. J. PETERSEN) DID YOU REVIEW AS PART OF 12 YOUR REVIEW OF MATERIALS IN THIS CASE A REPORT BY AN 13 OFFICER HEIKEN IN WHICH SCHMIDT IS REPORTED TO HAVE TOLD 14 THE OFFICER WHO STOPPED THE CAR THAT MR. SCHMIDT WAS 15 DRIVING, MR. SCHMIDT SAID -- QUOTE, "SCHMIDT ADVISED ME 16 THAT HE HAD GOTTEN THE BLOOD FROM THE ALTERCATION WITH A 17 HIGH SCHOOL FRIEND OF HIS"? 18 MR. FAULDER: YOUR HONOR, IT'S THE SAME 19 OBJECTION. HE'S READING TESTIMONY INTO THE RECORD -- HE'S 20 READING EVIDENCE INTO RECORD. THIS POLICE REPORT IS NOT 21 IN EVIDENCE. AND IF HE'S ASKING THE WITNESS IF HE READ 22 THE POLICE REPORT, THAT'S ONE THING; BUT TO READ IT INTO 23 THE RECORD AS IF IT'S EVIDENCE IS INAPPROPRIATE. 24 MR. J. PETERSEN: I CAN READ IT INTO -- I'M NOT 25 READING IT INTO EVIDENCE. WHAT I'M TRYING TO DO IS READ 26 THE RELEVANT PORTION SO I CAN REMIND THE DOCTOR AND SEE IF 27 IT REFRESHES RECOLLECTION AS TO WHETHER HE REVIEWED THIS 28 REPORT. 49 1 THE COURT: IF THAT'S WHAT IT'S BEING USED FOR -- 2 MR. FAULDER: THERE'S NO STATEMENT FROM THIS 3 WITNESS THAT HE DOES NOT RECOLLECT, THAT HIS RECOLLECTION 4 NEEDS TO BE REFRESHED. IT'S IMPROPER REFRESHING OF 5 RECOLLECTION. 6 THE COURT: I'LL SUSTAIN THE OBJECTION. 7 MR. J. PETERSEN: OKAY. I'LL STEP BACK ONE 8 STEP. 9 Q (BY MR. J. PETERSEN) DO YOU RECALL THE OFFICER 10 HEIKEN REPORT DATED 7/7/01? 11 A I READ A NUMBER OF REPORTS THAT WAS PROVIDED, A 12 VERY THICK STACK. I DON'T RECALL THAT SPECIFICALLY. 13 Q SURE. AND DO YOU RECALL READING A REPORT, 14 WITHOUT SPECIFICALLY REFERRING TO THE NAME HEIKEN, IN 15 WHICH MR. SCHMIDT ADVISES AN OFFICER THAT HE GOT THE BLOOD 16 ON HIM FROM AN ALTERCATION WITH A HIGH SCHOOL FRIEND? 17 A I RECALL IT COMING UP LATER IN DISCUSSION, AND I 18 THINK IT I DID READ THAT REPORT; BUT I DON'T RECALL 19 SPECIFICALLY READING THAT REPORT. 20 MR. J. PETERSEN: YOUR HONOR, MAY I APPROACH TO 21 SHOW THE WITNESS THE REPORT? 22 THE COURT: YES. 23 MR. J. PETERSEN: IT MAY HELP REFRESH HIS 24 RECOLLECTION. I'M NOT SURE. 25 THE WITNESS: YES. OKAY. 26 Q (BY MR. J. PETERSEN) IS THAT SOMETHING YOU 27 REVIEWED? 28 A YES. 50 1 Q AND DOES THAT STATEMENT MADE TO OFFICER -- WELL, 2 I GUESS IT DOESN'T DO ANY GOOD TO USE THE NAMES -- TO THE 3 OFFICER THAT MADE THE STOP FIT RIGHT IN WITH THE STATEMENT 4 MADE A LITTLE LATER AT THE STATIONHOUSE WITH THE TWO 5 DETECTIVES ABOUT HAVING GOTTEN INTO AN ALTERCATION WITH 6 SOMEONE AND THAT'S HOW THE BLOOD GOT ON HIM? 7 A I BELIEVE SO, YES. 8 Q AND AT SOME POINT THEN WE MOVE TO TAPE TWO AND 9 THE TONE OF THE INTERROGATION CHANGES A BIT; DOES IT NOT? 10 MR. FAULDER: OBJECTION. LEADING. 11 THE COURT: WELL, ONCE AGAIN, HE CAN ASK LEADING 12 QUESTIONS. IT'S OVERRULED. 13 THE WITNESS: YEAH, I BELIEVE THEY BECOME MORE 14 DIRECT, LIKE I SAID, AROUND PAGE 11 WHEN THEY TELL HIM 15 HE'S THE UNLUCKIEST PERSON, THIS IS WHERE THEY BECOME MORE 16 DIRECTLY ACCUSATORIAL ABOUT HIS ROLE IN THIS CRIME. 17 Q (BY MR. J. PETERSEN) AND THEN WHAT IS THE NEXT 18 PAGE UPON WHICH YOU FOUND SOMETHING THAT -- SAID SOMETHING 19 TO YOU AS AN EXPERT ALONG INTERROGATION PRACTICES? 20 A WELL, THE -- WHAT I JUST REFERENCE ON BOTTOM OF 21 PAGE 12 AND TOP OF PAGE 13, WHAT YOU SEE IS A THEME OF YOU 22 NEED TO HELP YOURSELF OUT. I DISCUSSED THE THEMES 23 EARLIER. AND THEN THE APPEAL TO A -- WAS THIS JUST A 24 SELF-DEFENSE THING. AND THAT'S VERY SIGNIFICANT BECAUSE 25 THAT RECURS. AND SO WE SEE THIS AGAIN ON THE BOTTOM OF 26 PAGE 14 WHERE ONE OF THE INTERROGATING DETECTIVES BY THE 27 INITIALS OF DP SAYS ON LINE 25, "I'M JUST SAYING IF THERE 28 WAS SELF-DEFENSE AT THE HOUSE, HELP US OUT. IT'S TIME TO 51 1 START HELPING YOURSELF OUT." 2 RECALL I SAID EARLIER THAT THE SECOND PART OF THE 3 INTERROGATION IS ABOUT CONVINCING SOMEBODY THAT IT'S IN 4 THEIR SELF INTEREST TO CONFESS, THAT THEY'RE BETTER OFF IF 5 THEY CONFESS THAN IF THEY DENY. AND SO THERE'S A 6 TWO-PRONG APPROACH HERE. ONE IS TO SUGGEST HE NEEDS TO 7 HELP HIMSELF OUT, HE'S GOING TO BENEFIT IMPLICITLY. AND 8 THE OTHER IS TO SUGGEST THAT THIS ACT CAN BE PORTRAYED AS 9 SELF-DEFENSE WHICH WE THEN SEE AGAIN ON THE TOP OF THE 10 NEXT PAGE, PAGE 15, LINE THREE, "IF SOMETHING HAPPENED 11 THERE AND YOU WERE HAVING TO DEFEND YOURSELF AGAINST HER, 12 THEN LET US KNOW." EIGHT AND NINE, "I JUST WANT YOU TO 13 HELP YOURSELF OUT." FIFTEEN, "YOU HAD A DISAGREEMENT, SHE 14 CAME AT YOU. SHE HIT YOU AND, YOU KNOW, SLASHED HER A 15 COUPLE TIMES AND SHE DIED AS A RESULT AND THAT'S -- YOU 16 KNOW, YOU HAVE THE RIGHT TO DEFEND YOURSELF." 17 SO WE SEE BOTH OF THESE THEMES OR INDUCEMENTS 18 PLAYED OUT. WHAT'S GOING ON HERE IS CONSISTENT WITH WHAT 19 I TALKED ABOUT IN THE SECOND STAGE OF INTERROGATION. 20 FRAMING IT AS SELF-DEFENSE IS MINIMIZING THE CULPABILITY 21 OF THE DEFENDANT. THAT'S PART OF THE APPEAL OF THE 22 TECHNIQUE AND WHY IT MIGHT WORK. 23 Q IS THIS A FAIRLY COMMON TECHNIQUE TO SORT OF 24 RECAST THE ACT AS THE OFFICER BELIEVES IT REALLY OCCURRED 25 SO THAT HE CAN GET THE INTERROGATEE TO SEE, OR THE 26 INTERROGATEE TO AGREE TO THESE FACTS THAT WOULD IMPLY A 27 LESSER CULPABILITY? 28 A I DO -- YEAH, THIS IS NOT UNCOMMON. THE 52 1 SELF-DEFENSE THEME -- I MEAN THERE ARE OTHER MINIMIZATION 2 THEMES THAT ONE SEES SELF-DEFENSE IS ONE TYPE, 3 PARTICULARLY IN A MURDER CASE; BUT IT'S NOT AN UNCOMMON 4 TECHNIQUE OR EXAMPLE OF THAT TECHNIQUE. 5 Q WHAT'S THE NEXT PAGE THAT YOU FOUND TO BE 6 IMPORTANT TO YOU AS AN EXPERT IN THIS AREA? 7 A WELL, AGAIN, I'M FOCUSING ON THE INDUCEMENTS. 8 THERE IS A LOT OF DISCUSSION ABOUT THE EVIDENCE AGAINST 9 HIM; BUT AGAIN THE INDUCEMENTS ARE WHAT GO INTO MY 10 DETERMINATION OF WHETHER OR NOT SOMETHING WOULD BE 11 COERCIVE. AND HE SAYS AT THE TOP OF PAGE 24, "I'M JUST 12 TRYING TO FIGURE OUT IF IT'S SELF-DEFENSE. IF IT'S NOT 13 SELF-DEFENSE THEN" -- AND THE BOTTOM OF PAGE 25, "PEOPLE 14 CAN KILL IN SELF-DEFENSE AND PEOPLE CAN KILL OUT OF 15 ANGER", AND THEN THE TOP OF PAGE 26, "WELL, THAT'S WHAT 16 I'M SAYING. DID YOU GET THREATENED OR AGGRAVATED TODAY BY 17 CHRISTA AND SOMETHING HAPPENED?" 18 Q LET ME BACK YOU UP FOR A SECOND. ON PAGE 16, IS 19 THERE ANOTHER REFERENCE TO HELPING HIMSELF OUT? 20 A YEAH, PAGE 16, LINE 24 HE'S -- THE OFFICER WITH 21 THE INITIALS DP IS IMPLORING JOHANN TO HELP HIMSELF OUT. 22 HE JUST SAYS IT DIRECTLY. 23 Q NOW IS THE IMPLICATION THE OFFICER'S MAKING THAT 24 IF HE, BEING JOHANN, STATES THAT THIS WAS SELF-DEFENSE -- 25 IN OTHER WORDS, THE DECEDENT HAD ATTACKED HIM OR ASSAULTED 26 HIM AND HE WAS MERELY FENDING OFF THAT ATTACK, THAT THERE 27 WOULD BE NO PUNISHMENT? IS THAT THE WAY A THEME WORKS IN 28 THIS CASE? 53 1 A THE WAY A THEME IS SUPPOSED TO WORK IN THEORY IS 2 GIVE A SUSPECT A FACE-SAVING OUT. SUPPOSED TO MINIMIZE 3 THE -- MORE OR LESS THE IMPORTANCE OR SERIOUSNESS OF THE 4 CRIME IN THE SUSPECT'S MIND. IT'S NOT SUPPOSED TO CONVEY 5 A PROMISE OR SUGGESTION OF MORE LENIENT TREATMENT OR NO 6 CRIMINAL PUNISHMENT IF YOU ADMIT TO A CERTAIN VERSION OF 7 THE EVENTS. SO THERE IS A KIND OF MINIMIZATION GOING ON, 8 BUT THAT'S NOT THE WAY A PROPER THEME IS SUPPOSED TO WORK 9 IN TERMS OF MINIMIZING LEGAL CULPABILITY OR PROMISING OR 10 SUGGESTING LENIENCY. 11 Q WHEN YOU SAY THAT'S NOT THE WAY THINGS ARE 12 SUPPOSED TO WORK, WHAT YOU'RE SAYING IS THAT OFFICERS -- 13 IS WHAT YOU'RE SAYING IS OFFICERS ARE TRAINED TO USE 14 THEMES BUT TO USE THEM IN THE WAY THEME INCLUDES ONLY 15 MORAL ADVANTAGES OR IN WAYS THAT DO NOT INCLUDE WHAT WOULD 16 BE CALLED HIGH END INDUCEMENTS LIKE LESSER PUNISHMENT? 17 A CORRECT. THEY'RE TRAINED TO AVOID PROMISE OF 18 LENIENCY SO THEY'RE TRAINED TO USE THEMES THAT DON'T 19 COMMUNICATE LEGAL LENIENCY IF THE SUSPECT GOES -- IF THE 20 SUSPECT AGREES WITH THE THEME. 21 Q HOW DOES SELF-DEFENSE -- THE OFFICER'S SUGGESTING 22 WELL, IF IT'S SELF-DEFENSE, TELL ME, HOW DOES THAT CONVEY 23 TO MR. SCHMIDT THAT THERE'S GOING TO BE LESSER 24 CULPABILITY? 25 A WELL, TYPICALLY SELF-DEFENSE IS AN EXCUSE OR 26 JUSTIFICATION. AND THE IDEA BEHIND USING SELF-DEFENSE 27 THEME IS THAT THE PERSON WHO KILLED IN SELF-DEFENSE WAS 28 JUSTIFIED, THAT SELF-DEFENSE IS NOT A CRIME, IT'S A 54 1 JUSTIFIABLE OR EXCUSABLE ACT. AND THE IMPORTANT THING FOR 2 A PSYCHOLOGIST IN STUDYING THIS IS THE MESSAGE THAT'S 3 GETTING COMMUNICATED BY THE TECHNIQUE, WHETHER IT'S 4 LEGALLY ACCURATE OR NOT. AND WHAT THE SUSPECT WHO'S 5 RECEIVING THE MESSAGE IS UNDERSTANDING. 6 AND WHAT YOU SEE HERE IS THE KIND OF CONTRAST, 7 FOR EXAMPLE, PAGE 25, LINE 22, I THINK I READ THERE JUST A 8 MOMENT AGO PEOPLE CAN KILL IN SELF-DEFENSE AND PEOPLE CAN 9 KILL OUT OF ANGER, SO TWO TYPES OF KILLING. AND THEN TOP 10 OF NEXT PAGE, YOU GET THREATENED OR AGGRAVATED. 11 Q WHEN YOU SAY -- ARE WE ON 26 NOW? 12 A 26, LINE ONE. YEAH. SO SELF-DEFENSE THE 13 SELF-DEFENSE THEME IS TYPICALLY WHEN IT'S USED, CONTRASTED 14 WITH A DIFFERENT VERSION OF THE KILLING AND IT'S CONVEYED 15 AS A RIGHTEOUS OR EXCUSABLE OR UNDERSTANDABLE ACT THAT MAY 16 NOT CARRY ANY PUNISHMENT ON THE ONE HAND. AND IT'S 17 TYPICALLY CONTRASTED WITH AGGRAVATED OR FIRST DEGREE OR 18 PREMEDITATED KILLING. 19 AND SO THE MESSAGE THAT'S OFTEN COMMUNICATED WITH 20 THIS TECHNIQUE IS THAT IF YOU ADOPTED THE SELF-DEFENSE 21 THEME, YOU'LL BE BETTER OFF, YOU MAY NOT GET PUNISHED, YOU 22 MAY BE ABLE TO GO HOME, YOU MAY GET A REDUCTION IN CHARGE, 23 YOU MAY NOT GET CHARGED AT ALL. IN MOST CIRCUMSTANCES 24 SELF-DEFENSE WOULD NOT BE A CRIME, IT WOULD NOT RESULT IN 25 A CRIMINAL CHARGE, SINCE UNDER LAW IT'S AN EXCUSE OR 26 JUSTIFICATION. IN MOST CIRCUMSTANCES. 27 Q NOW UP TO PAGE 25 THERE IS TALK ABOUT 28 SELF-DEFENSE, BUT IS 25 THE FIRST PAGE WHERE THE 55 1 SELF-DEFENSE THEME IS CONTRASTED WITH ANOTHER THEME, 2 SAYING -- SAY THE BOTTOM -- LOOK AT LINE 22 AND DOWN. 3 A THAT'S WHERE HE SAYS PEOPLE, PEOPLE CAN KILL IN 4 SELF-DEFENSE AND PEOPLE CAN KILL OUT OF ANGER. 5 Q SO WE'VE GOT -- WOULD IT BE ACCURATE TO SAY WE'VE 6 GOT SELF-DEFENSE THEME CONTRASTED WITH KILLING IN ANGER 7 WHAT WOULD BE A MURDER THEME? 8 A I DON'T THINK IT'S FULLY DEVELOPED THERE, BUT I 9 THINK THAT'S ACCURATE. I THINK THAT YOU'RE RIGHT. 10 EARLIER HE'S MENTIONED SELF-DEFENSE, HAS A RIGHT TO 11 PROTECT HIMSELF; BUT IT'S NOT CREDITED EXPLICITLY WITH A 12 DIFFERENT MOTIVE FOR KILLING. 13 Q SO WHEN WE GET UP TO PAGE 25 -- 14 A ACTUALLY, I WANT TO CORRECT MYSELF. ON PAGE 24, 15 LINE ONE, HE SAYS "I'M JUST TRYING TO FIGURE OUT IF THIS 16 IS SELF-DEFENSE. IF IT'S NOT SELF-DEFENSE" -- THEN HE 17 IMPLIES THAT THERE'S AN ALTERNATIVE FRAMING OF IT, SO HE 18 DOESN'T EXPLICITLY STATE IT, THE INTERROGATOR WITH THE 19 INITIALS DP. 20 Q AND THAT'S DEVELOPED MORE ON 25? 21 A CORRECT, LINES 22 AND 23. 22 Q SO THAT POINT THE OFFICER WHO DID NOT STATE WHAT 23 ALTERNATIVE THEORY WOULD BE ON TOP OF PAGE 24, HE THEN 24 FILLS IN THE BLANK ON 25 AND TELLS OR RELATES TO 25 MR. SCHMIDT WHAT THAT ALTERNATIVE THEORY IS? 26 A OR AT LEAST AN ALTERNATIVE, YEAH, KILLING IN 27 SELF-DEFENSE VERSUS KILLING OUT OF ANGER. AND TOP OF THE 28 NEXT, GET THREATENED VERSUS BEING AGGRAVATED. 56 1 ACTUALLY, I TAKE THAT BACK. THAT'S -- THREATEN 2 OR AGGRAVATE IS THE SAME THING ON TOP OF PAGE 26. 3 Q PAGE 25 IS THERE ANY INDICATION THAT -- AS TO 4 WHETHER OR NOT MR. SCHMIDT IS SORT OF PICKING UP ON THE 5 DICHOTOMY BEING LAID OUT BY THE OFFICER BETWEEN A KILLING 6 OF ANGER, A MURDER VERSUS SELF-DEFENSE? 7 A IT WOULD APPEAR THAT WAY, BECAUSE FOLLOWING THE 8 KILLING IN SELF-DEFENSE VERSUS KILLING IN ANGER REFERENCE 9 BY INTERROGATOR WITH THE INITIALS DP ON LINE 22 AND 10 MR. SCHMIDT APPEARS TO REPEAT THAT, 25 AND 26, "YES, 11 PEOPLE CAN KILL OUT OF ANGER AND PEOPLE CAN KILL OUT OF 12 SELF-DEFENSE IF THEY GET THREATENED OR IF SOMETHING" AND 13 IT'S "(INAUDIBLE) ANGRY." 14 Q SO ON 25 WE HAVE -- WELL, LET'S MOVE ON. SO ON 15 26, DO THE OFFICERS IN ANY WAY SORT OF EXPAND UPON THIS 16 SELF-DEFENSE THEORY AT THIS POINT OR WHAT'S GOING ON HERE 17 ON 26? YOU SPED THROUGH IT BEFORE AND YOU LOST ME IS WHAT 18 I'M SAYING. 19 A THE OFFICER FOLLOWS UP, DP ON TOP OF 26 WITH "DID 20 YOU GET THREATENED OR AGGRAVATED TODAY BY CHRISTA AND 21 SOMETHING HAPPENED?" MR. SCHMIDT ASKED A QUESTION. THE 22 OFFICER WITH INITIALS DP SAYS HE'S THE LUCKY ONE BECAUSE 23 HE DEFENDED HIMSELF BECAUSE HE CAME OUT ALIVE. 24 MR. SCHMIDT THEN ASKED THE OFFICER WHAT THE CONSEQUENCES 25 OF THAT ARE, AND THE OFFICER DP SAYS "IF IT'S JUSTIFIABLE, 26 THERE IS NO CONSEQUENCES." MR. SCHMIDT SAID, "OH, THERE'S 27 NO CONSEQUENCES?" THE OFFICER SAYS, "FOR JUST DEFENDING 28 YOURSELF? NO, THERE'S NOT." 57 1 Q IS THE THEME FAIRLY WELL-DEVELOPED AT THIS POINT 2 THAT MR. SCHMIDT IF HE WAS -- IF THE KILLING WAS IN 3 RESPONSE TO AN ATTACK BY THIS DECEDENT, THAT THERE WOULD 4 BE, IN THE WORDS OF THE OFFICER, NO CONSEQUENCES? 5 A I THINK THIS IS FAIRLY DIRECT. HE'S ESPECIALLY 6 SAYING IF YOU ADMIT TO SELF-DEFENSE, THERE ARE NO 7 CONSEQUENCE. ALTHOUGH HE'S PRESENTING IT ABSTRACTLY. IF 8 ONE ADMITS TO SELF-DEFENSE, IT'S JUSTIFIABLE, THERE'S NO 9 CONSEQUENCE. 10 Q NOW, OF COURSE, IN THIS CASE THAT WOULD BE 11 COMPLETELY UNTRUE BECAUSE OF FELONY MURDER RULE. I 12 UNDERSTAND THAT'S -- 13 MR. FAULDER: OBJECTION, YOUR HONOR. 14 THE COURT: OBJECTION BASED ON WHAT? 15 MR. FAULDER: WELL, HE'S TESTIFYING, FIRST OF 16 ALL. HE'S NOT ASKING THE WITNESS A QUESTION. HE'S 17 TESTIFYING. 18 MR. J. PETERSEN: YOUR HONOR, I THINK WE ALL KNOW 19 THAT THAT'S FELONY MURDER RULE. 20 THE COURT: IT'S OVERRULED. 21 THE WITNESS: I'M -- SO WAS THIS OVERRULED? 22 MR. J. PETERSEN: YES. 23 THE WITNESS: OKAY. YEAH, THAT MY UNDERSTANDING 24 OF THE LAW, THE ANSWER TO YOUR QUESTION WOULD BE YES. 25 Q (BY MR. J. PETERSEN) SO EVEN IF IT'S 26 SELF-DEFENSE, MR. SCHMIDT IS STILL ON THE LINE FOR FIRST 27 DEGREE MURDER? 28 MR. FAULDER: THIS WITNESS HAS NOT BEEN QUALIFIED 58 1 AS AN EXPERT IN FELONY MURDER RULE OR ANY OTHER LEGAL 2 THEORY. 3 MR. J. PETERSEN: HE'S GOT A J.D. FROM BOALT HALL 4 IN 1994. 5 MR. FAULDER: IT DOESN'T MAKE HIM AN EXPERT IN 6 CRIMINAL LAW AND HAS NOT BEEN OFFERED -- 7 MR. J. PETERSEN: I ASK THE COURT TAKE JUDICIAL 8 NOTICE OF THAT FACT. IT'S NOT BEYOND DISPUTE. IF A 9 KILLING OCCURRED DURING THE COURSE OF A BURGLARY, WHICH IS 10 WHAT IS ALLEGED, THERE IS NO WAY OUT THROUGH SELF-DEFENSE, 11 FOR SOMEONE WHO KILLS IN THE PROCESS OF THAT BURGLARY. 12 THE COURT: OBJECTION'S OVERRULED. 13 THE WITNESS: YES, MY UNDERSTANDING WOULD BE 14 BECAUSE OF THE FELONY MURDER RULE, IF YOU COMMIT A FELONY 15 AND THERE'S A DEATH AS A RESULT OR IN THE COMMISSION OF A 16 FELONY, YOU CAN BE CHARGED WITH FELONY MURDER. AND SO 17 ADMITTING TO SELF-DEFENSE WHERE AN INDIVIDUAL COMMITTED 18 ANOTHER -- COMMITTED A FELONY AND THERE'S A DEAD BODY WILL 19 NOT GET YOU OUT, WILL NOT LET THAT PERSON AVOID PUNISHMENT 20 FOR THAT, WHICH IS BEING SUGGESTED BY THE INTERROGATOR 21 HERE. 22 Q (BY MR. J. PETERSEN) WHAT'S ESSENTIALLY BEING 23 OFFERED OR BEING IMPLIED BY THE OFFICER IS THAT IF YOU -- 24 IF YOU, JOHANN, AGREED WITH OUR SELF-DEFENSE THEORY THAT 25 WE'RE OFFERING UP HERE, YOU'RE GOING TO -- THERE ARE GOING 26 TO BE NO CONSEQUENCES. OF COURSE, THAT'S ABSOLUTELY 27 UNTRUE BECAUSE THAT WOULD MAKE HIM -- IF HE DID CHOOSE TO 28 ADMIT TO THE THEORY BEING OFFERED BY THE INTERROGATOR, 59 1 THEN HE'S GUILTY OF MURDER ONE, RIGHT? IS THAT CORRECT? 2 A CERTAINLY, IT'S NOT TRUE. THERE ARE 3 CONSEQUENCES. AND IF HE DOES ADMIT TO THAT, I THINK HE 4 CAN BE CHARGED AND PROSECUTED FOR MURDER. CORRECT. 5 Q IF THOSE FACTS WERE TO BE PROVEN LATER? 6 A CORRECT. 7 Q ALL RIGHT. SO, LET ME SEE IF THERE WAS ANYTHING 8 ELSE I WANTED TO ASK YOU ABOUT ON 26. 9 IS THERE ANYTHING ON 27? 10 A WELL, I THINK ON 27 AT THE TOP THE INVESTIGATOR 11 DP SAYS YOU LOST US IN RESPONSE TO KIND OF A RAMBLING 12 RESPONSE BY MR. SCHMIDT AND TRIES TO BRING HIM BACK TO 13 WHAT THEY WERE DISCUSSING. AND ON LINE TEN, MR. SCHMIDT 14 SAYS "WHAT DOES THAT MAKE THAT PERSON? DOES THAT PERSON 15 THAT DEFENDED MAKE THAT A MURDERER?" 16 THAT'S BAD GRAMMAR OR BAD TRANSCRIPTS, BUT HE 17 APPEARS TO BE ASKING WHETHER SOMEBODY WHO KILLS IN 18 SELF-DEFENSE IS MURDER, GIVEN HE'S JUST BEEN TOLD ON THE 19 PREVIOUS PAGE THERE'S NO CONSEQUENCES. AND THEN THE 20 INVESTIGATOR DP SAYS, "YOU HAVE THE RIGHT TO DEFEND 21 YOURSELF." TO WHICH MR. SCHMIDT ASKS THE QUESTION MORE 22 DIRECTLY, "DOES THAT PERSON MAKE A MURDERER." "NO". SO 23 HE'S BEEN TOLD THAT IF YOU KILL IN SELF-DEFENSE, THAT 24 DOESN'T MAKE YOU A MURDERER. AND MR. SCHMIDT THEN 25 APPEARS, ALTHOUGH THERE'S AN INAUDIBLE MARK ON LINE 26 EIGHTEEN, TO ASK IF SOMEBODY WHO DEFENDS THEMSELVES, KILLS 27 IN SELF-DEFENSE GETS PRISON. AND INVESTIGATOR DP SAYS 28 "THERE ARE NO PUNISHMENTS IF YOU GET SELF-DEFENSE." 60 1 Q SO HERE WHAT WE SEE IS ON THE ONE HAND 2 SELF-DEFENSE SCENARIO BEING THAT MR. SCHMIDT, IF HE WAS 3 DEFENDING HIMSELF IN THE COURSE OF THIS ACT AND THAT'S HOW 4 THE DECEDENT WAS KILLED, WOULD NOT GO TO PRISON AND THERE 5 WOULD BE NO CONSEQUENCES; IS THAT RIGHT? 6 A THAT IS CORRECT. HE'S BEING TOLD THAT SOMEBODY 7 WHO KILLS IN SELF-DEFENSE IS NOT A MURDERER. HE'S BEING 8 TOLD HE HAS THE RIGHT TO DEFEND HIMSELF. HE'S BEING TOLD 9 THERE'S NO CONSEQUENCES. AND, FINALLY, I THINK THE MOST 10 BALD STATEMENTS IS LINE 19 HERE, "THERE ARE NO PUNISHMENTS 11 IF YOU GET SELF-DEFENSE." TO ME THE PLEDGE ALSO CLEARLY 12 SENDING, IF I ADOPT THE SELF-DEFENSE SCENARIO AND SAY I 13 DID IT IN SELF-DEFENSE, AS YOU THE INVESTIGATOR ARE 14 SUGGESTING, I WILL NOT BE PUNISHED. ESPECIALLY SINCE HE 15 JUST ASKED IF THERE WAS ANY PRISON TIME OR PRISON FOR A 16 PERSON WHO KILLS, DEFENDS HIMSELF KILLING IN 17 SELF-DEFENSE. SEEMS TO ME EXPLICITLY SUGGESTS THAT IF YOU 18 ADMIT TO THIS, YOU WILL NOT BE PUNISHED. THERE ARE NO 19 CONSEQUENCES. AND SEEMS TO ME TO BE A CLEAR SUGGESTION OR 20 PROMISE OF LENIENCY IN EXCHANGE FOR AN ADMISSION TO A 21 PARTICULAR SCENARIO, SCENARIO INVOLVING SELF-DEFENSE. 22 Q IS THIS A TACTIC THAT YOU WOULD DESCRIBE AS A 23 HIGH END INDUCEMENT OR SYSTEMIC INDUCEMENT OR LOW END 24 INDUCEMENT? 25 A I WOULD SAY THIS IS AT THE HIGH END. I WOULD SAY 26 THE INVESTIGATOR HERE IS CLEARLY COMMUNICATING THE KIND OF 27 DEAL -- TO SOME EXTENT IT'S IMPLICIT, BUT IT'S ALSO PRETTY 28 DIRECT IN THAT THERE ARE NO PUNISHMENTS IF YOU GET 61 1 SELF-DEFENSE. IF YOU ADMIT TO THIS KILLING IN 2 SELF-DEFENSE, NO CONSEQUENCES, NO PUNISHMENT. THE CLEAR 3 IMPLICATION IS YOU WILL GO HOME, YOU WILL NOT GET 4 ARRESTED, YOU WILL NOT GET CHARGED, YOU WILL NOT GET 5 PROSECUTED, YOU WILL NOT GET CONVICTED, NOT GET SENTENCED. 6 Q AND YOU WILL NOT GO TO PRISON? 7 A AND YOU WILL NOT GO TO PRISON. 8 Q AFTER THERE'S A STATEMENT BY ONE OF THE 9 OFFICERS. SO LINE FIFTEEN JOHANN SAYS SOMETHING ABOUT 10 SELF-DEFENSE FOR THAT PERSON UNDER THE SELF-DEFENSE 11 SCENARIO, THE OFFICER SAYS IF YOU'RE DEFENDING YOURSELF. 12 JOHANN SCHMIDT SAYS PRISON FOR THAT PERSON. OFFICER, 13 THERE ARE NO PUNISHMENTS IF YOU GET SELF-DEFENSE. JOHANN, 14 OKAY, BUT -- AND THEN THE OFFICER, THAT'S WHAT I'M TRYING 15 TO SAY. 16 SO CAN IT REALLY BE MORE CLEAR THAN THAT? 17 A THIS IS A PRETTY CLEAR STATEMENT OF IT. I THINK 18 IT'S BEEN DEVELOPED IN THE LAST -- FROM FIRST REFERENCE 19 ABOUT PAGE 13 TO 27, AND I THINK IT'S BEEN MORE DEVELOPED 20 EXPLICITLY BECAUSE THE DEFENDANT DOESN'T GO FOR IT ALL THE 21 WAY. HE'S ASKING FOR SPECIFIC QUESTIONS ABOUT PRISON AND 22 WHETHER SOMEBODY WHO KILLS IN SELF-DEFENSE IS A MURDERER. 23 IT GET DEVELOPED MORE EXPLICITLY. USUALLY IN MY 24 EXPERIENCE, THE TECHNIQUE IS NOT STATED THIS BALDLY WHEN 25 IT'S USED AS SELF-DEFENSE SCENARIO. 26 Q OFFICERS ARE TRAINED AND -- WHAT THEY'RE TRYING 27 TO DO IS OFFER VAGUE ENOUGH INDUCEMENTS SO THAT THEY WILL 28 NOT BE IN VIOLATION OF LAW, BUT ALSO GET THE SUSPECT TO 62 1 TELL THEM WHAT THEY THINK THE FACTS -- WHAT THE OFFICER -- 2 GET THEM TO AGREE WITH FACTS THE OFFICER BELIEVES TO BE 3 THE FACTS; IS THAT TRUE? 4 A I BELIEVE THAT'S TRUE. I BELIEVE THE OFFICERS, 5 IN GENERAL, WORK IN GOOD FAITH AND THEY WANT TO USE THE 6 TECHNIQUES THAT LAW PERMITS THEM, THAT THEY'RE TRAINED IN. 7 AND THEY DON'T WANT TO DO OR SAY ANYTHING THAT WOULD BE 8 INTERPRETED BY A COURT AS PROMISE OF LENIENCY OR THREAT. 9 SO I THINK SOMETIMES THEY OVERSTEP, BUT I DON'T BELIEVE 10 THEY INTENTIONALLY OVERSTEP. 11 Q AND WHEN -- IS IT COMMON IN YOUR EXPERIENCE 12 HAVING REVIEWED THOUSAND CASES INVOLVING INTERROGATIONS 13 THAT IF THE OFFICERS INITIAL VAGUE OFFERS OF LENIENCY THAT 14 MIGHT BE LEGAL ARE NOT UNDERSTOOD OR NOT -- YOU KNOW, THE 15 INTERROGATEE DOESN'T GO FOR THOSE, ADOPT THOSE AS THE 16 FACTS, DOES IT -- DOES THE OFFICER INVOLVED TEND TO MAKE 17 IT MORE AND MORE AND MORE EXPRESS BY INCREMENTS UNTIL THE 18 PERSON DOES UNDERSTAND AND/OR DOES GO FOR IT? 19 A THAT DOES HAPPEN IN MANY CASES, PARTICULARLY IN 20 MURDER CASES. IT DOESN'T HAPPEN IN ALL CASES. IT DEPENDS 21 ON A NUMBER OF THINGS, INCLUDING THE LENGTH OF TIME, THE 22 PRESSURE TO SOLVE THE CASE, THE PARTICULAR OFFICER 23 INVOLVED. BUT I HAVE SEEN THAT HAPPEN MANY TIMES, THAT 24 THE THEMES OR SCENARIOS WILL BE MADE MORE AND MORE 25 EXPLICIT, KIND OF EVOLUTION THAT GOES ON THROUGH THE 26 INTERROGATION. 27 Q AND THAT'S WHAT HAPPENS IN THIS CASE? 28 A YES. I THINK THAT DOES HAPPEN FROM PAGES 13 TO 63 1 PAGE 27. I THINK IT CONTINUES TO HAPPEN AFTER THAT AS 2 WELL WHERE -- 3 Q DIRECT ME TO A PAGE. ARE WE DONE WITH 27? IS 4 THERE ANYTHING ELSE THAT YOU FOUND NOTEWORTHY IN YOUR 5 EXPERTISE ON 27? 6 A I THINK 27 IS PERHAPS THE MOST BALD STATEMENT OR 7 CULMINATION OF THIS TECHNIQUE. NO PUNISHMENTS IF YOU GET 8 SELF-DEFENSE, HAVING JUST SAID NO CONSEQUENCES, I THINK IS 9 A CLEAR STATEMENT OF THE OFFER OF LENIENCY IF HE ADMITS TO 10 SELF-DEFENSE SCENARIO. BUT I THINK IT CONTINUES -- THAT 11 CONTRAST BETWEEN KILLING IN SELF-DEFENSE VERSUS NOT 12 KILLING IN SELF-DEFENSE CONTINUES ON PAGE 28. 13 Q IS THERE A PLACE ON 28 WHERE THE OFFICER RELATES 14 TO MR. SCHMIDT WHAT THE -- OR CONTRASTS I THINK WOULD BE A 15 BETTER WAY TO SAY IT -- PLACE ON 28 WHERE THERE'S A 16 CONTRAST BETWEEN ADOPTING SELF-DEFENSE OFFER ADOPTED BY 17 THE OFFICER AND NOT -- 18 A YES, IF YOU LOOK AT -- I WAS TRYING TO DO THAT 19 STARTING AT LINE 17 AND THEN GOING DOWN TO LINE 26, THE 20 OFFICER SEEMS TO BE SAYING IN THIS FROM LINE 17 TO 20. 21 Q IF COULD YOU READ THE LANGUAGE YOU'RE TALKING 22 ABOUT, IT WILL BE EASIER ON THE RECORD. 23 A LINE 17, "OKAY. INAUDIBLE, JOHANN, THAT'S WHAT 24 I'M SAYING. IF I DO ALL THAT AND I PROVE THAT YOU WERE IN 25 THAT HOUSE, THAT YOU SAT HERE AND SAY DENY, DENY, DENY, 26 YOU HAVE LIED TO ME AND NOT TOLD THE TRUTH AND SO THEN YOU 27 ARE A MURDERER. BUT YOU DID THIS AND YOU GUYS HAD AN 28 ARGUMENT." 64 1 AND JOHANN SAYS, "BUT I DIDN'T MURDER HER." THE 2 INVESTIGATOR SAYS -- NOW I THINK THERE'S ERROR IN THE 3 TRANSCRIPTS BECAUSE I HAVE IN MY NOTES "NO", BUT THE 4 TRANSCRIPT SAYS "YEAH". AND THEN AFTER THAT, "BUT IF YOU 5 GUYS GOT IN AN ARGUMENT AND SHE CAME AT YOU, THAT'S 6 SELF-DEFENSE." JOHANN SAYS "OKAY". AND INVESTIGATOR 7 SAYS, "OKAY. THEN YOU'RE NOT A MURDERER" 8 SO AGAIN HERE'S A MORE CLEAR STATEMENT OF THE 9 DICHOTOMY BETWEEN KILLING IN SELF-DEFENSE AND BEING A 10 MURDERER, WHEREAS THE PRIOR PAGES THERE WAS MORE EXPLICIT 11 STATEMENTS OF THE CONSEQUENCES OF BEING ON THE 12 SELF-DEFENSE SIDE OF THAT DICHOTOMY, THAT THERE WOULD NO 13 CONSEQUENCES, NO PUNISHMENT. ESSENTIALLY IMPLYING, AS I 14 SAID EARLIER, HE'D BE ABLE TO GO AND WOULDN'T GET 15 PUNISHED. 16 Q IS THERE A CLEAR EXPRESSION BY THE OFFICER HERE 17 THAT -- TO JOHANN, IF YOU DENY, THAT'S A LIE, YOU'RE A 18 MURDERER, IS THAT PRETTY CLEAR? 19 A YES. THERE'S TWO SCENARIOS. IF HE DENIES, 20 BECAUSE THE OFFICER IS SAYING LINE 18, I CAN PROVE YOU 21 WERE IN THE HOUSE, LINE 19, I CAN PROVE YOU LIED, IMPLYING 22 THAT IF YOU DENY KILLING IN SELF-DEFENSE, YOU'RE GOING TO 23 BE PERCEIVED AS, OR I CAN PROVE YOU IN COURT AS BEING A 24 MURDERER. 25 THE COURT: LET'S GO OFF THE RECORD FOR A 26 MOMENT. 27 (OFF THE RECORD.) 28 THE COURT: LET'S GO BACK ON THE RECORD. 65 1 Q (BY MR. J. PETERSEN) DR. LEO, IS THERE ANYTHING 2 ELSE ON 28 THAT WE NEED TO DISCUSS? 3 A I THINK WE'VE COVERED 28. 4 Q AND IS THERE SOMETHING ELSE ON 29? 5 A YES. AT THE TOP OF 29, MR. SCHMIDT ASKS "WHAT 6 DOES THAT PERSON GO THROUGH THEN? WHAT DOES THAT PERSON 7 AND THE OTHER PERSON GO THROUGH? THEY GET TO GO HOME JUST 8 LIKE THAT AND NOTHING HAPPENS?" I INTERPRET WHEN HE SAYS 9 THAT PERSON AND THE OTHER PERSON THAT ONE PERSON IS IN 10 SELF-DEFENSE SCENARIO AND THE OTHER PERSON IN THE MURDER 11 SCENARIO IS MADE EXPLICIT ON THE LAST LINE OF PAGE 28. 12 INVESTIGATOR SAYS WE'RE DOING AN INVESTIGATION. 13 MR. SCHMIDT AGAIN ASKED THE QUESTION WHAT HAPPENS TO THOSE 14 TWO PEOPLE AND THE INVESTIGATOR SAYS IF IT'S SELF-DEFENSE, 15 YOU GO HOME. AND AGAIN THIS IS VERY DIRECT AND IT'S VERY 16 SIGNIFICANT. THIS IS AN ILLUSTRATION IN THE WAY -- 17 CLASSIC ILLUSTRATION OF A HIGH END INDUCEMENT THROUGH A 18 SELF-DEFENSE SCENARIO WHERE HE'S BEING TOLD IF YOU ADMIT 19 TO SELF-DEFENSE SCENARIO, NOT ONLY ARE THERE NO 20 CONSEQUENCES, I DON'T GET PUNISHED, I GET TO GO HOME. IT 21 SEEMS TO BE CLEAR COMMUNICATION IF YOU ADMIT, YOU SAY I 22 DID IT IN SELF-DEFENSE, YOU GET POLICE, PROSECUTORIAL, 23 JUDICIAL AND CRIMINAL JUSTICE SYSTEM LENIENCY BECAUSE YOU 24 GO HOME, YOU DON'T GET PUNISHED, NO CONSEQUENCES. IT'S 25 ABOUT AS DIRECT AS ONE CAN GET WITH THIS TECHNIQUE. 26 Q AND ABOUT AS UNTRUE AS IT CAN GET UNDER THESE 27 TERMS AS WELL; WOULDN'T YOU AGREE? 28 MR. FAULDER: OBJECTION, YOUR HONOR. 66 1 THE COURT: SUSTAINED. 2 Q (BY MR. J. PETERSEN) IS THERE ANYTHING ELSE ON 3 29 THAT WE SHOULD DISCUSS? 4 A ON LINE EIGHT HE REPEATS THAT, DETECTIVE WITH 5 INITIALS DP, "IF IT IS SELF-DEFENSE, YOU HAVE THE RIGHT TO 6 PROTECT YOURSELF." REINFORCING THE IDEA THAT SELF-DEFENSE 7 IS JUSTIFIABLE, AS HE SAID EARLIER. 8 Q EVEN THOUGH SOMEBODY WHO IS COMMITTING A 9 BURGLARY, AS IT'S ALLEGED, WOULD NOT HAVE THAT RIGHT? 10 A EVEN THOUGH WHEN FELONY MURDER RULE APPLIES, 11 SELF-DEFENSE MAY NOT BE JUSTIFICATION OR AN EXCUSE TO A 12 CRIME, EVEN THOUGH IT TYPICALLY IS WHEN THERE ISN'T A 13 FELONY MURDER RULE, AS I UNDERSTAND IT. 14 THERE'S MORE MENTION ON THE BOTTOM OF PAGE 29 OF 15 THE SELF-DEFENSE THEME AS WELL, BUT I THINK IT'S RECYCLING 16 AND JUST REINFORCING WHAT HAS ALREADY BEEN SAID UP TO THAT 17 POINT. 18 THE COURT: LET'S GO OF THE RECORD FOR A MOMENT. 19 MY APOLOGIES. 20 (OFF THE RECORD.) 21 THE COURT: BACK ON THE RECORD IN PEOPLE VERSUS 22 SCHMIDT. MY APOLOGIES ONCE AGAIN. 23 Q (BY MR. J. PETERSEN) DOCTOR, IS THERE ANOTHER 24 PAGE WE SHOULD DISCUSS BEFORE WE CLOSE THE DISCUSSION? 25 A ON PAGE 33, LINE SIX AND SEVEN, THE INVESTIGATOR 26 DP, "SO -- AND IF THIS IS SELF-DEFENSE, JOHANN, THIS IS 27 THE TIME TO HELP YOURSELF OUT." I BELIEVE THAT'S THE LAST 28 EXAMPLE OF THE SELF-DEFENSE SCENARIO THAT I SEE BEFORE WE 67 1 GET THE FIRST ADMISSION. AND THAT TIES TOGETHER THE TWO 2 THEMES THAT STARTED I BELIEVE AROUND PAGE 12 OR 13 THAT I 3 FIRST MENTIONED. SO HELP YOURSELF OUT. IT'S IN YOUR BEST 4 INTEREST TO CONFESS IF THIS IS SELF-DEFENSE, NO 5 CONSEQUENCES, NO PUNISHMENT, YOU GET TO GO HOME. IT'S 6 YOUR RIGHT TO KILL IN SELF-DEFENSE. YOU HAVE THE RIGHT TO 7 PROTECT YOURSELF. SHE CAME AT YOU. 8 SO I THINK THAT TIES IT TOGETHER AND I THINK THAT 9 IS ESSENTIALLY THE INTERROGATION STRATEGY SO FAR AS 10 INDUCEMENTS GOING IN THE INTERROGATION, MOVING FROM DENIAL 11 TO ULTIMATELY ADMISSION. 12 Q IN THE SPECTRUM OF TACTIC THAT YOU SEE, EVEN THE 13 SPECTRUM OF COERCIVE TACTICS THAT YOU SEE, WHERE DOES THIS 14 TACTIC USED IN THIS CASE FALL IN THAT CONTINUUM? 15 A IT FALLS IN THE HIGH END CATEGORY BECAUSE I THINK 16 THE INVESTIGATOR HERE IS COMMUNICATING A DEAL THAT THERE 17 WILL BE NO PUNISHMENT IN EXCHANGE FOR AN ADMISSION TO A 18 SELF-DEFENSE SCENARIO. SO IT'S WHAT IN THE GENERAL 19 TESTIMONY CALL HIGH END INDUCEMENT. I THINK IT'S 20 PSYCHOLOGY, IMPROPER AND COERCIVE COMPARED TO OTHER 21 INTERROGATION WHERE I'VE SEEN THIS. IT'S PRETTY DIRECTLY 22 STATED. IT'S MORE IMPLYING IT THAN IT IS HERE. THIS IS 23 PRETTY BALD. IF IT'S SELF-DEFENSE, YOU GET TO GO HOME, NO 24 CONSEQUENCES, NO PUNISHMENT. IT'S A PRETTY BLUNT 25 STATEMENT OF ESSENTIALLY THE TERMS OF THE DEAL. 26 Q DO YOU HAVE A CONCLUSION THAT CAN YOU DRAW BASED 27 ON TECHNIQUE THAT YOU SEE USED HERE AS TO THE -- WHETHER 28 THE CONFESSION OBTAINED SHORTLY THEREAFTER, AFTER THE LAST 68 1 PAGE WE DISCUSSED, WAS COERCED? 2 A YES. IT WOULD BE MY OPINION, AS I SAY IN THE 3 REPORT, THAT THIS IS A COERCIVE INTERROGATION TECHNIQUE; 4 AND THE ADMISSION, FOR THE REASONS THAT I'VE ARTICULATED 5 BOTH IN THE REPORT AND MORE SPECIFICALLY HERE IN MY 6 TESTIMONY, THIS IS PSYCHOLOGICALLY COERCIVE AND IMPROPER 7 INTERROGATION TECHNIQUE THAT RESULTS IN INVOLUNTARY 8 ADMISSION. 9 Q AND IS THAT OPINION -- AGAIN, I KNOW WE'VE BEEN 10 THROUGH THIS. IS THAT OPINION BASED ON THE THOUSAND 11 INTERVIEWS INTERROGATIONS THAT YOU'VE REVIEWED AND ALL 12 YOUR CASE STUDY IN THIS AREA? 13 A IT WOULD BE BASED ON THE RESEARCH AND EXPERTISE 14 THAT I HAVE IN THIS AREA, BOTH AS A SCHOLAR AS WELL AS THE 15 TRAINING THAT I'VE TAKEN AND THE TRAINING THAT I'VE GIVEN. 16 Q THANK YOU. I HAVE NOTHING FURTHER -- ACTUALLY, 17 I'M SORRY. I HAVE PODBOY'S REPORT THAT I SUPPOSE I MIGHT 18 TRY AND COVER THAT NOW, EVEN THOUGH DR. PODBOY IS NOT HERE 19 TODAY. 20 HAVE YOU REVIEWED PODBOY'S REPORT? 21 A YES. 22 Q AND THE REPORT YOU HAVE, IS THAT DATED JULY 23, 23 2002? 24 A CORRECT. 25 Q AND DID YOU REVIEW THAT REPORT PRIOR TO TAKING 26 THE STAND TODAY AND ARE YOU PREPARED TO DISCUSS THAT 27 REPORT? 28 A YES. 69 1 Q IS THERE -- WHERE IS THE FIRST THING STATED ON 2 DR. PODBOY'S THREE-PAGE REPORT THAT YOU SHOULD ADDRESS? 3 IS THERE ANYTHING YOU DISAGREE WITH? 4 A MOST OF WHAT I WOULD WANT TO TALK ABOUT WOULD BE 5 IN RESPONSE TO WHAT DR. PODBOY WROTE ON PAGE THREE. THERE 6 IS NON SEQUITUR AT THE TOP WHERE HE SAYS -- ON PAGE THREE 7 WHERE SAYS MR. SCHMIDT APPEARED TO HAVE NO DIFFICULTY 8 WHATSOEVER IN DESCRIBING THE LEVEL OF VIOLENCE THAT HE AND 9 HIS GIRLFRIEND INITIATED. THIS IS IN DIRECT CONTRAST TO 10 THE FINDING OF DR. LEO. I DON'T UNDERSTAND WHAT THAT 11 WOULD BE IN DIRECT CONTRAST TO THAT WAS IN MY REPORT WHICH 12 DR. PODBOY REFERENCES HERE. 13 DR. PODBOY THEN THE VERY NEXT LINE AFTER A SPACE 14 ON PAGE THREE GOES ON TO QUOTE ESSENTIALLY, MY ULTIMATE 15 OPINION ABOUT THIS INTERROGATION THAT IT'S PSYCHOLOGICALLY 16 COERCIVE WELL-RECOGNIZED INTERROGATION TECHNIQUE TO 17 COMMUNICATE PROMISE OF LENIENCY IN EXCHANGE FOR COMPLIANCE 18 AND CONFESSION. AND THEN SO I'M NOT SURE WHY HE QUOTES 19 THAT. THEN DR. PODBOY -- BECAUSE IT'S NOT CONTRADICTED BY 20 WHAT IS SAID ABOVE IT. THEN DR. PODBOY SAYS HE, MEANING 21 ME, WENT ON TO MENTION A TECHNIQUE KNOWN AS A THEME, BUT 22 THIS EXAMINER'S REVIEW OF THE AFOREMENTIONED FOUND NO SUCH 23 EVIDENCE. 24 ANYBODY WHO IS AN EXPERT IN THE FIELD OF 25 INTERROGATION, WHETHER THEY ARE AN ACADEMIC EXPERT OR 26 POLICE EXPERT, WOULD ACKNOWLEDGE THAT THEMES ARE USED 27 REPEATEDLY IN THIS INTERROGATION, PARTICULARLY THE 28 SELF-DEFENSE THEME AND THE HELP YOURSELF OUT THEME. SO 70 1 WHEN HE SAYS THAT HE HASN'T SEEN ANY THEME IN THIS 2 INTERROGATION, APART FROM ANY EVALUATION OF WHETHER THE 3 THEMES ARE COERCIVE OR NOT, THAT'S JUST COMPLETELY WRONG. 4 NO ONE WITH ANY TRAINING OR KNOWLEDGE OF THE TOPIC WOULD 5 SAY THAT. 6 Q LET HE STOP YOU RIGHT THERE. DO YOU KNOW THE 7 NAME DR. PODBOY OR DR. JOHN PODBOY? 8 A NO. I'VE NEVER COME ACROSS THAT NAME BEFORE. 9 Q IS HE PART OF YOUR FIELD, THE FIELD OF THE STUDY 10 OF INTERROGATION TECHNIQUES OR -- 11 MR. FAULDER: OBJECTION. NO FOUNDATION. HE SAID 12 HE DOESN'T KNOW DR. PODBOY. 13 THE COURT: SUSTAINED. 14 Q (BY MR. J. PETERSEN) IF HE WERE A FIGURE FROM 15 WITHIN THAT AREA OF STUDY, THE STUDY OF COERCIVE LAW 16 ENFORCEMENT INTERROGATION TECHNIQUES AND CONFESSIONS, 17 WOULD YOU RECOGNIZE THE NAME? 18 A I BELIEVE I WOULD, BECAUSE I'VE READ ALL OF THE 19 LITERATURE ON THIS TOPIC IN THE LAST TWO DECADES. I MAY 20 HAVE MISSED A STRAY ARTICLE HERE AND THERE. I'VE READ ALL 21 THE SIGNIFICANT LITERATURE. IF HE HAD DONE RESEARCH IN 22 THIS AREA AND PUBLISHED THE RESEARCH OR EVEN IF HE HAD 23 PRESENTED IT AT A MAJOR MEETING, I WOULD HAVE ALMOST 24 CERTAINLY 99.9 PERCENT CERTAIN WOULD HAVE COME ACROSS IT 25 AND I WOULD BE FAMILIAR WITH WHO HE IS. 26 Q AND ARE THERE ANY SIGNIFICANT FIGURES -- 27 REGARDLESS OF WHAT THEY MIGHT HAVE PUBLISHED, ARE THERE 28 ANY SIGNIFICANT FIGURES IN THE FIELD THAT IF YOU WERE 71 1 GIVEN THEIR NAME YOU WOULD NOT LIKELY RECOGNIZE AS OPPOSED 2 TO YOUR FAILURE TO RECOGNIZE DR. PODBOY'S NAME? 3 A NO. THE RESEARCH -- I WOULD RECOGNIZE ALL THE 4 RESEARCHERS. THERE IS QUITE A NUMBER OF RESEARCHERS IN 5 ENGLAND AND MANY OF THE ARTICLES HAVE MULTIPLE AUTHORS. 6 SO POTENTIALLY SOMEBODY WHO'S JUST COMING UP IN ENGLAND 7 WHO'S A THIRD OR FOURTH AUTHOR IN AN ARTICLE, I MIGHT NOT 8 RECOGNIZE THEM RIGHT AWAY; BUT ALL THE MAJOR FIGURES IN 9 THIS AREA IN RESEARCH I WOULD RECOGNIZE. 10 Q ALL RIGHT. I THINK WE GOT DOWN TO JUST PAST THE 11 QUOTE THAT HE HAS OF YOUR REPORT IN THIS CASE. IS THERE 12 ANYTHING BEYOND THAT QUOTATION FROM YOUR REPORT THAT YOU 13 WOULD DISAGREE WITH IN DR. PODBOY'S THREE-PAGE LETTER? 14 A WELL, I THOUGHT HE WAS WRONG ABOUT THE THEMES. 15 CLEARLY THERE ARE THEMES USED. HE GUESS ON TO SAY IN THE 16 NEXT PARAGRAPH, IN CONCLUSION, AS SOMEONE WHO EXAMINED 17 MR. SCHMIDT CLOSE IN TIME TO THE PENDING CRIMINAL 18 ALLEGATIONS, IT IS EXTREMELY DIFFICULT FOR THIS EXAMINER 19 TO IMAGINE HOW ANYONE COULD CONCLUDE THAT MR. SCHMIDT WAS 20 SUBJECT TO IMPROPER INTERROGATION TECHNIQUES OR UNDUE 21 COERCION. SINCE THERE IS AN OBJECTIVE, I WOULD DISAGREE 22 WITH THIS SINCE THERE IS OBJECTIVE RECORD OF THE 23 INTERROGATION, TWO VIDEOTAPES WERE TRANSCRIBED. 24 IT'S RELEVANT WHETHER SOMEBODY INTERVIEWED 25 MR. SCHMIDT CLOSE IN TIME TO THE PENDING CRIMINAL 26 ALLEGATIONS. ANY JUDGMENT ABOUT WHETHER THE INTERROGATION 27 IS OR IS NOT COERCIVE SHOULD COME FROM ANALYSIS OF THIS 28 RECORD, THE VIDEOTAPE AND TRANSCRIPT, NOT FROM AN 72 1 INTERVIEW PROXIMATE IN TIME WITH MR. SCHMIDT. AND, OF 2 COURSE, HE SAYS IT'S EXTREMELY DIFFICULT FOR THIS EXAMINER 3 TO IMAGINE HOW ANYONE COULD CONCLUDE THAT MR. SCHMIDT WAS 4 SUBJECTED TO IMPROPER INTERROGATION TECHNIQUES OR UNDUE 5 COERCION. EVEN IF SOMEBODY DISAGREED WITH ME AND THOUGHT 6 THIS WAS NOT IMPROPER INTERROGATION TECHNIQUES OR UNDUE 7 COERCION, IT'S NOT DIFFICULT TO IMAGINE WHY I CAME TO THAT 8 CONCLUSION. AND I'VE ARTICULATED THAT CONCLUSION IN THIS 9 TESTIMONY. SO I THINK IT'S AN EXAGGERATED STATEMENT AND I 10 THINK IT'S WRONG. 11 THE NEXT PARAGRAPH, HE WAS VERY ANXIOUS TO 12 JUSTIFY, MINIMIZE AND RATIONALIZE HIS MISCONDUCT IMPLYING 13 A PRIMITIVE BUT WELL-KNOWN PSYCHOLOGICAL MECHANISM. THE 14 PROBLEM I HAVE WITH THIS, IT PORTRAYS MR. SCHMIDT AS IF 15 HE'S THE ONE WHO'S GENERATING THE JUSTIFICATIONS, THE 16 MINIMIZATION AND RATIONALIZATION, WHEN IN FACT HE BEGINS 17 THE INTERROGATION DENYING, DENYING, DENYING. AND THE 18 TECHNIQUE IS TO GET HIM TO THINK THAT IF HE ADMITS IN 19 SELF-DEFENSE, HE'S JUSTIFIED. HE RATIONALIZED IT. HE 20 WON'T GET PUNISHED. IT'S NOT MISCONDUCT. THERE'S NO 21 CONSEQUENCES. HE GETS TO GO HOME. 22 AND IN MY ANALYSIS OF THIS INTERROGATION, IT'S 23 NOT UNTIL PAGE 35 OF THE SECOND VIDEOTAPE THAT MR. SCHMIDT 24 MAKES THE FIRST ADMISSION. AND -- DIRECT ADMISSION. AND 25 SO IF MR. SCHMIDT WERE, AS DR. PODBOY ALLEGES IN THIS 26 REPORT, ANXIOUS TO JUSTIFY AND MINIMIZE AND RATIONALIZE 27 MISCONDUCT, IT WOULDN'T HAVE BEEN NECESSARY TO HAVE 28 INTERROGATED HIM UP TO THAT POINT, TO HAVE USED THESE 73 1 TECHNIQUES TO REPEATEDLY TRY TO PERSUADE HIM TO CONFESS BY 2 ESSENTIALLY SUGGESTING HE WOULDN'T GET PUNISHED AND GET TO 3 GO HOME. 4 IF WHAT DR. PODBOY IS SAYING IS TRUE, MR. SCHMIDT 5 WOULD HAVE JUST SPONTANEOUSLY AND VOLUNTARILY ADMITTED IT, 6 ALBEIT, AS DR. PODBOY IS SUGGESTING, IN KIND OF A 7 MINIMIZED FASHION; BUT THAT DID NOT OCCUR. SO I THINK 8 DR. PODBOY'S CONCLUSION HERE IS ERRONEOUS AND DISCONFIRMED 9 BY THE RECORD OF THE INTERROGATION AND THE LENGTH OF TIME 10 AND AMOUNT OF TECHNIQUE AND TYPE OF TECHNIQUES THAT WERE 11 NECESSARY TO GET THE CONFESSION. 12 Q THE FACT IF YOU -- WE REVIEWED A COMMENT BY ONE 13 OF THE OFFICERS IN THIS TAPE TWO TRANSCRIPT WHERE THE 14 OFFICER IS SAYING IF YOU CONTINUE TO DENY, DENY, DENY, 15 YOU'RE GOING TO BE A LIAR AND YOU'RE GOING TO BE A 16 MURDERER. DO YOU REMEMBER THAT COMMENT? 17 A YEAH. IT WOULD BE ON PAGE 28, LINE 19, WHERE HE 18 SAYS, IF "YOU SAT HERE AND SAY DENY, DENY, YOU HAVE LIED 19 TO ME AND NOT TOLD THE TRUTH AND SO THEN YOU ARE A 20 MURDERER." CORRECT. 21 Q WOULD THAT COMMENT FROM THE OFFICER MAKE ANY 22 SENSE AT ALL IF MR. SCHMIDT HAD NOT BEEN DENYING, DENYING, 23 DENYING, AND HAD TO BE CONVINCED BY GIVING THIS UNTRUE 24 SELF-DEFENSE SCENARIO? 25 A NO. I THINK THE ANSWER IS TRANSPARENTLY NO. IT 26 WOULDN'T BE NECESSARY TO USE THIS TECHNIQUE OR SAY THESE 27 THINGS IF WHAT DR. PODBOY IS SAYING WERE ACCURATE. 28 MR. J. PETERSEN: ONE MOMENT PLEASE. 74 1 (PAUSE.) 2 Q (BY MR. J. PETERSEN) IN FACT AFTER THIS 3 TECHNIQUE IS USED WHERE THE OFFICER OR OFFICERS OFFER THIS 4 FALSE THEME OF SELF-DEFENSE, DOESN'T MR. SCHMIDT THEN 5 ADMIT UNDER THE THEORY THE OFFICERS OFFERED HIM, DOESN'T 6 HE GO AHEAD AND CONFESS UNDER THIS PHONY SELF-DEFENSE 7 THEORY THAT DOESN'T WORK IN THESE CASES? 8 A THAT IS MY RECOLLECTION, YES. 9 Q SO WOULD IT BE TRUE THAT HE EVENTUALLY DOES ADOPT 10 THE DEFENSE OFFERED TO HIM OR THE PHONY DEFENSE OFFERED TO 11 HIM BY THE OFFICER? 12 A IT IS TRUE THAT HE EVENTUALLY ADOPTS THE 13 SELF-DEFENSE SCENARIO AND ADMITS TO IT, YES. 14 (PAUSE.) 15 THE COURT: DO THE PARTIES WISH TO TAKE A RECESS? 16 MR. R. PETERSEN: YEAH. 17 THE COURT: LET'S BE IN RECESS. 18 (RECESS TAKEN AT 2:46 P.M.) 19 THE COURT: BACK ON THE RECORD. THE WITNESS HAS 20 RESUMED THE STAND. 21 ARE WE READY WITH CROSS? 22 MR. J. PETERSEN: I'M HOPING WE'RE READY, YOUR 23 HONOR. I'M DONE. 24 MR. FAULDER: I'M READY TO CROSS. THANK YOU. 25 THE COURT: CROSS. 26 CROSS-EXAMINATION 27 Q (BY MR. FAULDER) GOOD AFTERNOON. 28 A GOOD AFTERNOON. 75 1 Q DR. LEO, WE'VE TALKED ABOUT QUITE A BIT HERE THIS 2 AFTERNOON AND, UNFORTUNATELY, I HAVE TO TAKE YOU BACK 3 SOMEWHAT TO THE BEGINNING AND TALK TO YOU ABOUT YOUR 4 CREDENTIALS AGAIN. I DO HAVE A FEW QUESTIONS. 5 A OKAY. 6 Q I NOTICED THAT THE C.V. THAT WAS PRESENTED IN 7 EVIDENCE TODAY WAS FROM MARCH OF 2002. AND I DOWNLOADED 8 YOUR RECENT C.V. FROM THE INTERNET FROM YOUR WEBSITE AND 9 THAT WAS DATED JUNE OF 2002. 10 IS THERE ANY SIGNIFICANT DIFFERENCE BETWEEN THOSE 11 TWO C.V.'S THAT WE SHOULD KNOW ABOUT? 12 A OFF THE TOP OF MY HEAD, NO. I CAN'T THINK OF 13 ANYTHING. I TYPICALLY UPDATE MY C.V. FROM MONTH TO 14 MONTH. AND I JUST PRESENTED THE JUNE C.V. TO THE WEBSITE. 15 Q THE JUNE C.V. IS UPDATED MORE THAN THE MARCH 16 ONE? 17 A CORRECT. 18 Q DR. LEO, YOU RECEIVED YOUR PH.D IN AUGUST 1994 19 AND YOUR J.D. IN MAY OF 1994; IS THAT CORRECT? 20 A THAT'S MY RECOLLECTION, YEAH. 21 Q YOU HAVE NOT PASSED ANY STATE BAR IN THE UNITED 22 STATES; IS THAT CORRECT? 23 A I'VE NEVER TAKEN THE STATE BAR. 24 Q YOU'RE NOT A LAWYER? 25 A CORRECT. A PRACTICING LAWYER. 26 Q AND ACCORDING TO YOUR WEBSITE, YOU'VE BEEN AN 27 ASSOCIATE PROFESSOR OF CRIMINOLOGY AT THE UNIVERSITY OF 28 CALIFORNIA IRVINE SINCE JULY OF 2001? 76 1 A I THINK THAT'S WHEN TENURE WENT THROUGH. 2 Q JUST ABOUT A YEAR YOU'VE BEEN AN ASSOCIATE 3 PROFESSOR OF CRIMINOLOGY? 4 A CORRECT. AND ALSO ASSOCIATE PROFESSOR OF 5 PSYCHOLOGY AND SOCIAL BEHAVIOR. 6 Q I WANTED TO GET TO THAT. I WANTED TO SHOW YOU 7 WHAT'S BEEN PREVIOUSLY MARKED PEOPLE'S NUMBER 3 AND THEN 8 AFTER THAT I'LL SHOW YOU PEOPLE'S EXHIBIT NUMBER 4. 9 I NEED A POINT OF CLARIFICATION ON THAT. SO WHEN 10 THE DEFENSE HAS A CHANCE TO REVIEW THOSE, I'LL SHOW THEM 11 TO YOU. 12 (PAUSE.) 13 Q (BY MR. FAULDER) SHOWING YOU, DR. LEO, WHAT'S 14 FIRST BEEN MARKED EXHIBIT NUMBER 3, CAN YOU IDENTIFY WHAT 15 THAT IS FOR THE RECORD? 16 A YEAH. THIS LOOKS LIKE A PRINTOUT OF THE WEB PAGE 17 THAT THE UNIVERSITY MAINTAINS FOR ME. 18 Q CAN YOU TELL THE COURT FOR THE RECORD WHAT 19 PEOPLE'S EXHIBIT NUMBER 4 IS? IDENTIFY THAT PLEASE. 20 A THIS LOOKS LIKE THE WEBSITE FOR THE PSYCHOLOGY 21 AND SOCIAL -- PSYCHOLOGY AND SOCIAL BEHAVIOR WEBSITE. AND 22 THEY HAVE ME LISTED AS AFFILIATE SOCIAL ECOLOGY FACULTY ON 23 PAGE FOUR OF FOUR. 24 Q YOU'RE ANSWERING QUESTIONS I HAVEN'T ASKED YET. 25 THE PSYCHOLOGY WEBSITE DOESN'T HAVE YOU LISTED AS 26 AN ASSOCIATE PROFESSOR, DOES IT? 27 A IT HAS ME LISTED AS AFFILIATE SOCIAL ECOLOGY 28 FACULTY. 77 1 Q THERE'S A LIST OF ASSOCIATE PROFESSORS ON THAT 2 PRINTOUT, CORRECT? 3 A THERE IS A LIST OF PEOPLE WHOSE PRIMARY 4 APPOINTMENT IS IN THE PSYCHOLOGY DEPARTMENT, SOME OF WHOM 5 ARE ASSOCIATE PROFESSORS. 6 Q AND YOU'RE LISTED NOT AS AN ASSOCIATE PR