1                  UNITED STATES DISTRICT COURT

 2                SOUTHERN DISTRICT OF CALIFORNIA

 3

 4   _____________________________
                                  )
 5   STEPHEN CROWE, et al.,       )
                                  )
 6                 Plaintiffs,    )
                                  )
 7          vs.                   )  99-CV-0241-R(RRB)  
                                  )
 8   COUNTY OF SAN DIEGO, et al., )
                                  )                      
 9                 Defendants.    )
     _____________________________)
 10                                )
     AARON HOUSER, et al.,        )
 11                                )
                   Plaintiffs,    )
 12                                )
            vs.                   )
 13                                )
     CITY OF ESCONDIDO, et al.,   )
 14                                )
                   Defendants.    )
 15   _____________________________)
                                  )
 16   MICHAEL LEE TREADWAY, et al.,)
                                  )
 17                 Plaintiffs,    )
                                  )
 18          vs.                   )
                                  )
 19   CITY OF ESCONDIDO, et al.,   )
                                  )
 20                 Defendants.    )
     _____________________________)    
 21

 22
                  DEPOSITION OF RICHARD LEO, PH.D. 
 23
                       SAN DIEGO, CALIFORNIA
 24
                          FEBRUARY 5, 2003
 25

 26        REPORTED BY SHELLEY LYNN SCHNIEPP, CSR NO. 5487

 27

 28

     Peterson & Associates Court Reporting, Inc.               1




 1                  UNITED STATES DISTRICT COURT

 2                SOUTHERN DISTRICT OF CALIFORNIA

 3
     _______________________________
 4                                  )
     STEPHEN CROWE, et al.,         )
 5                                  )
                  Plaintiffs,       )
 6                                  )
              vs.                   ) 99-CV-0241-R(RRB)
 7                                  )
     COUNTY OF SAN DIEGO, et al.,   )
 8                                  )
                  Defendants.       )
 9   _______________________________)
                                    )
 10   AARON HOUSER, et al.,          )
                                    )
 11                Plaintiffs,       )
                                    )
 12            vs.                   )
                                    )
 13   CITY OF ESCONDIDO, et al.,     )
                                    )
 14                Defendants.       )
     _______________________________)
 15                                  )
     MICHAEL LEE TREADWAY, et al.,  )
 16                                  )
                  Plaintiffs,       )
 17                                  )
              vs.                   )
 18                                  )
     CITY OF ESCONDIDO, et al.,     )
 19                                  )
                  Defendants.       )
 20   _______________________________)

 21

 22               DEPOSITION OF RICHARD LEO, PH.D.,

 23   taken by the Defendants, commencing at the hour of

 24   9:00 a.m., on February 5, 2003, at 530 "B" Street, Suite 

 25   350, San Diego, California, before Shelley Lynn Schniepp, 

 26   Certified Shorthand Reporter in and for the State of 

 27   California.

 28

     Peterson & Associates Court Reporting, Inc.               2




 1   APPEARANCES

 2        For the Plaintiff Houser:

 3                SCHOVILLE & ARNELL
                  BY:  LOUIS ARNELL
 4                1230 Columbia Street, Suite 800
                  San Diego, California  92101 
 5

 6        For the Plaintiff Treadway:

 7                CASEY, GERRY, REED & SHENK
                  BY:  CHRISTOPHER TAYLOR
 8                      -and-
                  BY:  JEREMY ROBINSON
 9                110 Laurel Street
                  San Diego, California  92101
 10

 11        For the Defendant National Institute for Truth
          Verification:       
 12
                  HORTON & RYAN
 13                BY:  MINA MISERLIS
                  225 Broadway, Suite 1400
 14                San Diego, California  92101

 15
          For the Defendants City of Oceanside and Chris
 16        McDonough:

 17                FERGUSON, PRAET & SHERMAN
                  BY:  DIANA L. FIELD
 18                1631 East 18th Street
                  Santa Ana, California  92075
 19

 20        For the Defendant City of Escondido:

 21                OFFICE OF THE CITY ATTORNEY
                  BY:  MARK A. WAGGONER
 22                DEPUTY CITY ATTORNEY
                  CITY OF ESCONDIDO
 23                201 North Broadway
                  Escondido, California  92025
 24

 25        For the Defendant Laurence Blum, M.D.:

 26                MURCHISON & CUMMING
                  BY:  SCOTT LOEDING
 27                750 "B" Street, Suite 2550
                  San Diego, California  92101
 28

     Peterson & Associates Court Reporting, Inc.               3




 1                           I N D E X

 2   WITNESS:  RICHARD LEO, PH.D.

 3

 4   EXAMINATION                                   PAGE

 5   By Mr. Waggoner                                 5     

 6   By Ms. Field                                  144

 7   By Ms. Miserlis                               184

 8   By Mr. Loeding                                214

 9
                          E X H I B I T S
 10
     FOR THE DEFENDANTS                           MARKED
 11
     139        Dr. Leo's file                      114
 12

 13

 14

 15

 16

 17

 18

 19

 20

 21

 22

 23

 24

 25

 26

 27

 28

     Peterson & Associates Court Reporting, Inc.               4




 1                      RICHARD LEO, PH.D.,

 2         having been duly sworn, testified as follows:

 3

 4                          EXAMINATION

 5   BY MR. WAGGONER:

 6        Q.    Good morning, sir.

 7        A.    Morning.

 8        Q.    My name is Mark Waggoner.  I represent the City 

 9   of Escondido and various individual defendants in the 

 10   litigation entitled Crowe versus the City of Escondido, et 

 11   al.

 12              My understanding is you have been retained by 

 13   the plaintiffs to offer expert opinions in this case and 

 14   we're here to take your deposition relative to that 

 15   designation. 

 16              Is that your understanding?

 17        A.    Yes.

 18        Q.    Would you please state your full name for the 

 19   record and spell your last name.

 20        A.    Richard Angelo Leo, L-e-o.

 21        Q.    How are you employed?

 22        A.    I'm currently an associate professor at the 

 23   University of California Irvine.  I have an appointment in 

 24   the criminology law and society.  That's my primary 

 25   appointment.

 26              I have a joint appointment with the department 

 27   of psychology and social behavior also as an associate 

 28   professor.

     Peterson & Associates Court Reporting, Inc.               5




 1        Q.    How many times in the past have you testified?

 2        A.    I have testified 82 times in a court of law.  

 3   That doesn't including depositions, suppression motions, 

 4   pretrial hearings or post-conviction hearings.

 5        Q.    Approximately how many times have you testified 

 6   in a deposition?

 7        A.    Eight times.

 8        Q.    Unless you think you need it, I'll dispense 

 9   with going through the admonitions of a deposition and 

 10   what the rules of the procedure are. 

 11              However, I will admonish you, you have taken an 

 12   oath, the same oath as if you were testifying in court 

 13   with the judge and jury present.  You are under penalty of 

 14   perjury.

 15              Do you understand that?

 16        A.    Yes.

 17        Q.    Do you have any questions about the deposition 

 18   procedure?

 19        A.    No -- actually, I do have one question.

 20        Q.    Certainly.

 21        A.    Are there going to be multiple attorneys 

 22   deposing me or is it going to be you or perhaps they could 

 23   introduce themselves at this time.

 24        Q.    There will be because I represent only certain 

 25   of the defendants in this case.  There are other 

 26   defendants besides my clients and they have a right to 

 27   depose you as well. 

 28              MS. FIELD:  My name is Diana Field.  I 

     Peterson & Associates Court Reporting, Inc.               6




 1   represent the City of Oceanside and Detective Chris 

 2   McDonough.

 3              MR. LOEDING:  Scott Loeding.  I represent

 4   Dr. Lawrence Blum.

 5              MS. MISERLIS:  Mina Miserlis on behalf of 

 6   defendant NITV.

 7              THE WITNESS:  That raises the next question.  

 8   I'm obviously going to send the bill to somebody for my 

 9   time.  Is that going to be you?

 10   BY MR. WAGGONER:

 11        Q.    Yes.

 12        A.    So you will get me a card?

 13        Q.    We've been given a report from Mr. Silverman's 

 14   office dated November 30th, 2002 that purports to be a 

 15   report of your work on this case and then we also have -- 

 16   I don't know if you want to call it a report or a letter 

 17   from you dated December 31st, 2002 to Milt Silverman. 

 18              Do those two documents compromise all of the 

 19   written reports that you've generated so far in your work 

 20   on this case?

 21        A.    Yeah.  They comprise all the written reports, 

 22   correct.

 23        Q.    In the first one, you list materials you have 

 24   reviewed at least as of the date of that report,

 25   November 30, 2002. 

 26              Have you reviewed anything other than what is 

 27   listed in that section of your report dated November 30, 

 28   2002?

     Peterson & Associates Court Reporting, Inc.               7




 1        A.    Yes, I have.

 2        Q.    What is that?

 3        A.    The materials referred to in the first 

 4   paragraph of the December 31st report, supplement to

 5   Milt Silverman, which would include Jack Jamarca's report 

 6   dated December 23, 2002 and Dr. Lawrence Blum's deposition 

 7   dated October 15, 2002. 

 8              I've also reviewed Dr. Sarah Wech's report, 

 9   Dr. John Thornton's report, Victor Cestaro's report.  I 

 10   didn't write dates next to these.  Dr. Calvin Calaruso's 

 11   report, Joseph Buckley's report, Patrick Flood's report,  

 12   Gregg McCrary's report, Joel Cary's report, a few pages of 

 13   Gary Hoover's deposition and Judge Thompson's decision 

 14   dated 12/17/98.

 15        Q.    Do you have pages listed from Hoover's depo?

 16        A.    No.  I believe it was Pages 110 to 111 or 112, 

 17   maybe 113.  Right around there.

 18        Q.    So it was less than five pages?

 19        A.    Yes.

 20        Q.    Is your November 30, 2000 report as 

 21   supplemented by the letter to Mr. Silverman dated

 22   December 31st, 2002 an attempt by you to comprehensively 

 23   state what your opinions and conclusions are in this case?

 24        A.    To that point, yes.

 25        Q.    Have you, after reviewing the subsequent 

 26   materials you just listed today, modified or changed any 

 27   of your opinions from your earlier reports?

 28        A.    No.

     Peterson & Associates Court Reporting, Inc.               8




 1        Q.    Have you supplemented those opinions with 

 2   additional opinions or additional conclusions?

 3        A.    No.

 4        Q.    The document that you listed as the decision of 

 5   Judge Thompson, was that a minute order or was that a 

 6   transcript of his verbal rendering of his rulings after 

 7   the motion to suppress?

 8        A.    My recollection was that it was not a minute 

 9   order.  It was a transcript of his rendering of the basis 

 10   of his decision and what the decision was.

 11        Q.    You have listed videotapes and transcript of 

 12   the interrogations of Michael Crowe, Joshua Treadway and 

 13   Aaron Houser.  What transcripts were those?

 14        A.    I wasn't aware that there were different 

 15   versions of the transcript.  They were the transcripts 

 16   that were provided to me by Mr. Silverman's office and 

 17   they were transcripts that appeared to be verbatim 

 18   renditions or transcriptions of the actual interrogation 

 19   tapes that I reviewed.

 20        Q.    Do you have any of those with you?

 21        A.    No, I don't.

 22        Q.    Do you recall whether on the cover it indicated 

 23   that they were prepared by a court reporting firm so they 

 24   looked like a regular deposition transcript with the label 

 25   of the court reporting firm on the front?

 26        A.    I don't recall.  There was a label that had the 

 27   times and the dates so it appeared to me that they were 

 28   prepared by somebody.  In my experience, attorneys don't 

     Peterson & Associates Court Reporting, Inc.               9




 1   make those designations.

 2        Q.    During the criminal proceeding, the district 

 3   attorney's office had transcripts made.  The process by 

 4   which they did pretty much guaranteed that they were 

 5   fairly inaccurate. 

 6              For the civil case, we hired a court reporting 

 7   firm to sit down with a court reporter and a videotape and 

 8   transcribe it off the videotape.  Those are the 

 9   transcripts which I believe you have probably reviewed 

 10   because we gave those to Mr. Silverman.  I'm just trying 

 11   to confirm that.

 12        A.    We would have to ask Mr. Silverman, but that 

 13   would be my educated guess, because as I went through, I 

 14   didn't notice many errors.

 15        Q.    Have you reviewed anything that would inform 

 16   you of the times of day that a given interrogation began 

 17   and ended?

 18        A.    No, only to the extent that that was 

 19   memorialized on the transcript and mentioned during the 

 20   actual videotaped interrogation.  Otherwise, I don't 

 21   believe I have.  If I have, I don't recall at this point.

 22        Q.    Did you yourself attempt to make any type of 

 23   time lines or recreate how long the interrogations were 

 24   going before a given break occurred, that kind of thing?

 25        A.    No.

 26        Q.    In your report where you say you have reviewed 

 27   the videotapes and transcripts of the interrogations, did 

 28   you read the transcripts from end to end?

     Peterson & Associates Court Reporting, Inc.               10




 1        A.    I read the transcripts as I observed the actual 

 2   interrogations so, yes, but I didn't read them 

 3   separately.  I was watching the interrogation, reading the 

 4   transcript, watching.

 5        Q.    Did you ever put the transcripts aside and just 

 6   watch the interrogations without looking at the 

 7   transcript?

 8        A.    No.

 9        Q.    How many times did you go through any given one 

 10   of the videotapes and transcripts?

 11        A.    Each of them one time.

 12        Q.    Did you watch the videotapes from end to end?

 13        A.    Yes.

 14        Q.    Each videotape on each interrogation of

 15   Michael Crowe, Aaron Houser and Joshua Treadway?

 16        A.    Yes.

 17        Q.    As I understand, from your report, it's your 

 18   opinion that the interrogation of Michael Crowe, at least 

 19   by the time it concluded on January 23rd, 1998, produced a 

 20   coerced, persuaded confession; is that correct?

 21        A.    Correct.  I would say coerced, persuaded, false 

 22   confession.

 23        Q.    That was going to be my next question.

 24              Are you going to render an opinion that the 

 25   coerced, persuaded confession was actually false versus 

 26   just a coerced, persuaded confession that could either be 

 27   false or true?

 28        A.    I would, of course, offer questions that I was 

     Peterson & Associates Court Reporting, Inc.               11




 1   allowed to ask and, in fact, asked.  If I were asked 

 2   whether or not it was my opinion this was a coerced, 

 3   persuaded, true or false confession, it's my opinion it's 

 4   a coerced, persuaded, false confession.

 5        Q.    It's my understanding from your testimony in 

 6   prior cases and your writings that the method by which you 

 7   purport to determine whether a coerced confession is false 

 8   or true is to analyze the post-confession narrative or the 

 9   post-admission narrative and look at how well it fits the 

 10   facts of the crime as those are determined from the 

 11   objective evidence; is that correct?

 12        A.    Correct.  So what we would want to do is look 

 13   at the post-admission narrative.  We use that term rather 

 14   than confession narrative.  Everything the suspect says 

 15   after saying the words, I did it, and see whether or not 

 16   that post-admission narrative demonstrates independent 

 17   knowledge, the kind of knowledge that you would expect 

 18   somebody who committed the crime to know, not just with 

 19   regard to the dramatic details, but also mundane details. 

 20              Whether that post-admission narrative, absent 

 21   contamination or suggestion or prior knowledge fits the 

 22   crime scene facts, leads to new or missing evidence, 

 23   explains away abnormalities, tells police things they 

 24   didn't already know or you would expect the perpetrator to 

 25   know absent contamination or suggestion or prior

 26   knowledge, whether or not it's corroborated by reliable 

 27   medical and physical and other credible evidence. 

 28              In many cases where a crime has occurred, 

     Peterson & Associates Court Reporting, Inc.               12




 1   particularly a violent crime or homicide and there's 

 2   physical evidence left at the crime scene, there's a 

 3   question whether or not that physical evidence left by the 

 4   perpetrator matches to the confessor.  If it doesn't, 

 5   that's a red flag. 

 6              Obviously if the confessor's post-admission 

 7   narrative is in error, reveals ignorance, lack of 

 8   knowledge of the true crime facts, is contradicted by 

 9   other physical and medical evidence, that would all be 

 10   consistent with a false confession.

 11        Q.    So in order to make that analysis, you would 

 12   have to know what the true crime facts are; correct?

 13        A.    Correct.

 14        Q.    What have you done to appraise yourself with 

 15   what the true crime facts are with respect to the murder 

 16   of Stephanie Crowe?

 17        A.    I've reviewed these materials, the materials 

 18   that are enumerated here as well as in the December 31st 

 19   report. 

 20              The additional materials that I told you about 

 21   earlier in response to an earlier question.  The case was 

 22   initially a criminal case, as you know, and for the 

 23   criminal case, I was retained by Don McInnis.  I believe 

 24   this was in 1998, maybe '99.  I think it was 1998. 

 25              I was retained by Don McInnis at that time on 

 26   behalf of Aaron Houser.  I was provided materials at that 

 27   time.  I studied the case carefully.  I followed media 

 28   reports.  I had been interviewed about the case. 

     Peterson & Associates Court Reporting, Inc.               13




 1              Over the years, in addition to these materials, 

 2   I've reviewed other materials and have tried to become 

 3   familiar with the case.

 4        Q.    Do you have any documentation of what materials 

 5   you were provided by Don McInnis when you were working on 

 6   the case with him?

 7        A.    Yes, not with me, but I could look at the file 

 8   and let you know which materials I've been provided.

 9        Q.    Are you relying on knowledge from those 

 10   materials in making your opinions on this case today?

 11        A.    I haven't parsed out what particular materials 

 12   I am or am not relying on.  In general, no, the materials 

 13   that I'm relying on are these materials. 

 14              I guess what I mean to say, I don't know if any 

 15   of my knowledge about this case comes from materials that 

 16   aren't provided here.  I think these materials are 

 17   comprehensive.

 18              I think all my knowledge of this case is 

 19   included in these documents, but since I knew about this 

 20   case quite extensively prior to reviewing these materials, 

 21   some of which I reviewed before, I simply don't know the 

 22   answer to your question.

 23              MR. ARNELL:  When you talk about "These 

 24   materials," you're referencing materials you reviewed in 

 25   connection with this case? 

 26              THE WITNESS:  Correct.  For the record, the 

 27   materials that are enumerated on the two reports as well 

 28   as the materials that I enumerated in response to an 

     Peterson & Associates Court Reporting, Inc.               14




 1   earlier question. 

 2              Prior to being retained on this case, I already 

 3   had a great deal of knowledge about this case, but I 

 4   believe all the important information is contained in the 

 5   materials I've reviewed.  I may be wrong.

 6              MR. WAGGONER:  Given that answer, Counsel, it 

 7   would be my position that we'll need the witness to list 

 8   for us the other materials that he has reviewed.  I don't 

 9   think they probably need to be produced because I'm sure 

 10   most of it is stuff we have.  We at least need a list of 

 11   the other materials the witness has reviewed, and if 

 12   there's something significant in there, it may cause a 

 13   need to redepose on that issue.

 14              MR. ARNELL:  That's something we can certainly 

 15   talk about.

 16              MR. WAGGONER:  At the very least, I believe 

 17   we're entitled to the list of what he reviewed earlier.

 18   BY MR. WAGGONER:

 19        Q.    If a suspect doesn't actually give a 

 20   post-narrative or a post-admission narrative, in other 

 21   words, he basically stops at the words, "I did it," 

 22   doesn't add anything into that other than I don't recall 

 23   anything about how I did it or I just did it, then how do 

 24   you know since you can't compare the post-admission 

 25   narrative to the crime facts because he hasn't given you a 

 26   post-admission narrative?

 27              How do you know whether that is a false 

 28   confession or true, whether it's coerced or not?

     Peterson & Associates Court Reporting, Inc.               15




 1        A.    You would want to look at the crime evidence.  

 2   You would want to see -- you would want to ask a number of 

 3   questions.  For example, is there any evidence that a 

 4   crime occurred.  There are times when people say they 

 5   committed crimes and there's no crime that occurred.  I'm 

 6   giving you a general answer.  Obviously in this case a 

 7   crime did occur. 

 8              There are also times when people admit to 

 9   crimes and it was physically impossible for them to have 

 10   committed that crime.  One would want to ask that question 

 11   as well. 

 12              For example, somebody is in jail at the time 

 13   the crime occurs.  It would be physically impossible for 

 14   them to have committed the crime. 

 15              One would want to look at scientific evidence, 

 16   evidence that could definitively or dispositively 

 17   exonerate or inculpate the individual such as blood,

 18   fingerprint, DNA evidence.  We know now that numerous 

 19   individuals have been exonerated through DNA.  Not all of 

 20   them have confessed. 

 21              Of course, if the true perpetrator of a crime 

 22   is identified or confesses or convicted, that would be 

 23   independent evidence as well that the confession was 

 24   false.

 25              I would want to ask all those questions, and I 

 26   would want to focus on what the physical evidence tells 

 27   you about who did or did not commit the crime.

 28        Q.    In your working life, have you ever worked as a 

     Peterson & Associates Court Reporting, Inc.               16




 1   police detective?

 2        A.    No.

 3        Q.    Have you ever worked for a police department at 

 4   all in the capacity as an officer?

 5        A.    No.

 6        Q.    Have you ever undergone any particular training 

 7   or taken any classes on the subject of criminal 

 8   investigation, crime scene investigation, anything that 

 9   would give you experience in investigating the crime scene 

 10   facts?

 11        A.    I need clarification.  I think the question is 

 12   no.  I have taken a number of police interviewing and 

 13   interrogation classes, but no classes just on crime scene 

 14   investigation or analysis.

 15        Q.    Is there anything in your education, 

 16   experience, training or background that qualifies you to 

 17   label yourself as an expert in performing the analysis as 

 18   to whether or not a post-admission narrative fits the 

 19   crime scene facts?

 20        A.    Well, part of my education, training and 

 21   experience has to do with studying the interrogation 

 22   process.  The training is academic training, but it's 

 23   training to become a professor and researcher and I also 

 24   do training of others. 

 25              I've studied hundreds of interrogations.  I 

 26   teach classes.  I give classes to police.  I'm regarded as 

 27   an expert in the analysis of interrogation.  Not just the 

 28   causes of psychology of interrogation to confession, but 

     Peterson & Associates Court Reporting, Inc.               17




 1   also the analysis of the reliability or unreliability of 

 2   interrogation-induced statements. 

 3              So I would say that the sum total of my 

 4   educational training as well as my police training, the 

 5   research and publication and training that I do qualifies 

 6   me in the eyes of others to evaluate the fit between 

 7   post-admission narrative and crime scene facts and to 

 8   evaluate the reliability of whether an interrogation 

 9   induced statement -- whether they're likely reliable or 

 10   not. 

 11              The analysis of the post-admission narrative, 

 12   the analysis of reliability is inevitably based on 

 13   documents or opinions provided by others which are 

 14   incorporated into the analysis by any interrogation 

 15   expert. 

 16              For example, I don't conduct an autopsy, but in 

 17   that analysis, I might rely on an autopsy report. 

 18              I don't obviously conduct DNA tests or 

 19   fingerprint analyses, but I might rely on an analysis on 

 20   those documents and so it goes.

 21        Q.    Have you ever taken a class or been instructed 

 22   in some manner on the topic of how one goes about 

 23   analyzing the fit and how well a post-admission narrative 

 24   fits actual crime scene facts?

 25              Have you taken any specialized training or 

 26   classes on that topic?

 27        A.    I did take a course in graduate school that was 

 28   on police interrogations specifically which included that 

     Peterson & Associates Court Reporting, Inc.               18




 1   as one aspect of it.

 2              I believe I took a couple seminars on policing 

 3   and detective work and investigation that also included 

 4   that. 

 5              I've taught classes about that or have included 

 6   that.  I've not taken a class just on that topic, 

 7   analyzing the reliability of interrogation-induced 

 8   statements or admissions or confessions, but that has been 

 9   included in classes that I've taken as well as in 

 10   materials that I've studied, reviewed, written about, 

 11   published.

 12        Q.    Have you ever worked in any type of a capacity 

 13   where your analysis of how well a post-admission narrative 

 14   fits the crime scene facts in a given case is then 

 15   reviewed by a supervisor?

 16        A.    No -- I should say not to my knowledge.  The 

 17   reason why I say that is because in the summer, last 

 18   summer, July of 2002, I gave a three-day training session 

 19   to Brower County sheriff's office which I lectured for six 

 20   hours, three days in a row, to their felony investigations 

 21   about the problem with coercion and false confession.

 22              As part of that training session, I went 

 23   through a number of cases that were false confessions and 

 24   the post-admission narrative of those cases. 

 25              It's possible that that was reviewed by a 

 26   supervisor after I left, but I was never told about that.  

 27   To my knowledge, the answer is no.

 28        Q.    You've certainly never been reviewed by a 

     Peterson & Associates Court Reporting, Inc.               19




 1   supervisor for whom you work; correct?

 2        A.    Correct.  Again, let me issue a qualification 

 3   here.  The research and publication that I do is reviewed 

 4   internally by my department, my chair, my dean and 

 5   ultimately an academic personnel committee and then a vice 

 6   chancellor in each stage of the merit promotion process.   

 7              No one has told me they specifically reviewed 

 8   my analysis of post-admission fit or unreliability of 

 9   particular confessions, but the body of my scholarship and 

 10   my service is reviewed by peers and superiors at the 

 11   university.

 12        Q.    You mentioned perhaps three courses where there 

 13   was training or at least discussion in the course of how 

 14   one performs the analysis to determine whether 

 15   post-admission narrative fits the crime scene facts.       

 16              Would you tell me the number of hours you think 

 17   between those three, number of hours instruction was 

 18   devoted to that topic.

 19        A.    It would have to be an educated guess.  The 

 20   ideas are relatively straightforward, so the time that it 

 21   would be devoted to would be applying in practice or 

 22   studying cases where that analysis was involved.  Maybe 10 

 23   hours, maybe 20 hours, maybe 50 hours.  I don't know.  It 

 24   would just depend. 

 25              There also would be the in-class -- you're 

 26   calling it training.  I would just call it 

 27   lecture/discussion/analysis, and then the time spent 

 28   outside of class working on papers, reviewing materials, 

     Peterson & Associates Court Reporting, Inc.               20




 1   performing the analysis on my own, discussing it in class 

 2   subsequently.  So I don't know.  Anywhere from 10 to 50 

 3   hours, maybe.

 4        Q.    How long were those?

 5        A.    Three classes.

 6        Q.    How long were those three courses total?

 7        A.    The three courses would be 15 weeks on the 

 8   semester system.  I don't remember if they were 3- or 

 9   4-hour classes per week.  That would mean that there would 

 10   be 45 hours to 60 hours per class.  Three times 45 to 60 

 11   is 135 to 180, so I suspect that the amount of time spent 

 12   on reliability or post-admission narrative issues in those 

 13   three classes would be closer to the 10 than the 50 hour 

 14   estimate.

 15        Q.    In your opinion, did Michael Crowe provide a 

 16   post-admission narrative?

 17        A.    My recollection of the interrogation on the 

 18   23rd is that he did make some statements.  He repeatedly 

 19   said he didn't know, but they wouldn't accept that.

 20              I do recall that he was asked how many times he 

 21   stabbed her and I believe he said three, but he couldn't 

 22   provide any specific details which is significant in the 

 23   evaluation of the post-admission narrative.

 24        Q.    My question remains.  In your opinion, did 

 25   Michael Crowe provide what you would term a post-admission 

 26   narrative?

 27        A.    My answer would be yes.

 28        Q.    What did he say in that post-admission 

     Peterson & Associates Court Reporting, Inc.               21




 1   narrative?  What information did he provide?

 2              MR. ARNELL:  Or not provide as his previous 

 3   answer reflects.

 4              MR. WAGGONER:  No.  

 5   BY MR. WAGGONER:

 6        Q.    My question is, what information did

 7   Michael Crowe provide in his post-admission narrative that 

 8   you opined that he gave?  If counsel wants to ask the 

 9   other question later, he may, but I want you to answer my 

 10   question.

 11        A.    Everything he says after the words, "I did it" 

 12   or what can be construed as, "I did it," including what he 

 13   writes in that letter that he's told to write to his dead 

 14   sister would comprise the post-admission narrative.  

 15   That's all in the transcript and on tape.

 16              We could go back to that and isolate that 

 17   portion as the post-admission narrative portion of the 

 18   interrogation.  I don't have a specific recollection of 

 19   everything he says.  

 20              I do recall that he makes the guess that's 

 21   erroneous about the number of times she was stabbed.  I do 

 22   recall he repeatedly saying he doesn't remember, he 

 23   doesn't know, he must have done it. 

 24              The admission of ignorance that -- the 

 25   statements of ignorance, the inability to provide 

 26   information is also, technically speaking, part of the 

 27   post-admission narrative.

 28        Q.    Correct me if my recall is wrong or if you 

     Peterson & Associates Court Reporting, Inc.               22




 1   don't remember, just say that. 

 2              My memory of the point where he talked about 

 3   how many times he stabbed her was at the same time that he 

 4   was basically telling the officers, I'm going to tell you 

 5   a story now.  I'm going to lie.  And he tells a story and 

 6   says he stabbed her three times, and then at the same time 

 7   he's telling them, this is just a story I'm making up. 

 8   Then they go on from there.  

 9              Is that your recall, that's the point when that 

 10   statement was made about the three times stabbing?

 11        A.    Yeah.  I don't think I would characterize it 

 12   the same way you did because they were telling him to use 

 13   his imagination and pressuring him and they broke him 

 14   down.

 15              I would say it was in response to what they 

 16   were saying.  It didn't just come up spontaneously but, 

 17   yes, he did say that.  That's my recollection.

 18        Q.    He said it in the context of a statement that, 

 19   as he was saying it, he was telling the officers this is 

 20   not the truth, I'm making up a story here, and now as I'm 

 21   making up the story, I'm going to tell you I stabbed her 

 22   three times, and he says he stabbed her three times.

 23        A.    In response to what they were saying, yes.

 24        Q.    So setting that aside, what other information

 25   can you recall as you sit here today that Michael Crowe 

 26   gave the officers during the post-admission narrative?

 27        A.    There's the information in the letter that he 

 28   writes out.  There's information about how he said at that 

     Peterson & Associates Court Reporting, Inc.               23




 1   point or later in the interrogation how he felt about his 

 2   sister.

 3              If I recall, he continued to guess or he 

 4   continued to say he had no memory, he didn't know how -- 

 5   he didn't talk about his fears.  That whole discussion 

 6   after the letter I would characterize starting with -- if 

 7   my memory is accurate today, would all be a post-admission 

 8   phase, but the details beyond that, I don't specifically 

 9   recall at this moment.

 10        Q.    Let me ask you this and we'll get back to that, 

 11   but a foundational question. 

 12              When did you physically sit down and review the 

 13   tapes with the transcripts?

 14        A.    It would be in the month of November.

 15        Q.    Sometime immediately prior to writing your 

 16   report?

 17        A.    Correct.

 18        Q.    You haven't rereviewed them since?

 19        A.    Correct.

 20        Q.    Let me try this.  You can disagree if you want 

 21   to, but if I were to adopt your own vernacular, your own

 22   analysis and step into your shoes for a moment, I would 

 23   say that there isn't a post-admission narrative by Michael 

 24   Crowe, that what you really have is just a protracted 

 25   admission, just a repeated admission.

 26              I did it, I did it, and each time he throws 

 27   different verbiage in with it, but he never really engages 

 28   in a post-admission narrative.

     Peterson & Associates Court Reporting, Inc.               24




 1              You simply have a protracted admission.  Don't 

 2   you think that's more accurate of a description of what 

 3   happened with Michael Crowe's interrogation?

 4        A.    No.  I would disagree.

 5        Q.    Why?

 6        A.    The reason why I would disagree is that

 7   Michael Crowe struggles to find the memory.  He doesn't 

 8   have the memory.  He's convinced he must have done it.  He 

 9   responds to the lies and pressure and threats the way 

 10   they've broken him down over that time period of the 

 11   interrogation.

 12              He struggles to make sense of it, to come up 

 13   with an account, and he can't because he doesn't have that 

 14   memory even though they convinced him he must have done 

 15   this or he likely did this. 

 16              So he's simultaneously denying as he's 

 17   admitting, confused, trying to find the memory.  I think 

 18   he says in the letter.  The only reason I'm saying this, 

 19   they said I did it or later in the interrogation, I think 

 20   the evidence shows it.  So I think what you have is 

 21   someone who is struggling to find a nonexistent memory and 

 22   actively guessing, which is what he's being encouraged to 

 23   do using his imagination.

 24              But, ultimately, he can't find the details 

 25   because he lacks the knowledge or memory of having 

 26   committed the crime because he didn't commit the crime and 

 27   was unable to regard what I understand to provide 

 28   post-narrative admission, a detailed and elaborate story 

     Peterson & Associates Court Reporting, Inc.               25




 1   about how he did or could have committed the crime. 

 2              Nevertheless, I think that everything he 

 3   provides is itself a narrative.  It's a failed narrative.  

 4   It's an incomplete narrative.  It's an equivocating, 

 5   hesitating narrative.  It's a narrative based on 

 6   speculation, frustration, inability to provide any details 

 7   because he doesn't know them.

 8        Q.    What information in that narrative is there 

 9   that he provided that you could take and compare to the 

 10   crime scene to perform the analysis as to whether or not 

 11   that narrative fits this crime scene?

 12        A.    Again, I would have to review it.  My 

 13   recollection at this point is the stabbing.  He stabbed 

 14   her three times.

 15              My understanding is that she wasn't stabbed 

 16   three times.  If, in fact, he had stabbed her, presumably 

 17   there would be evidence -- given the violent manner in 

 18   which she died, there would be evidence linked to him 

 19   which my understanding there is none.

 20        Q.    Now you're going outside the question.  The 

 21   question is not what there would be out there and what the 

 22   crime scene would have.

 23              The question is focusing on the content of the 

 24   post-admission narrative.  You established one thing, one 

 25   piece of information in the post-admission narrative you 

 26   could take and go to the crime scene, if imperative, in 

 27   the number of times the victim was stabbed.

 28              I want to ask you, can you identify any other 

     Peterson & Associates Court Reporting, Inc.               26




 1   piece of information in Michael Crowe's post-admission 

 2   narrative that you could go to the crime scene and compare 

 3   the accuracy of that piece of information?

 4        A.    Well, I think we may have a different 

 5   understanding of crime scene.  The post-admission 

 6   narrative was compared to crime scene facts.  Of course 

 7   the crime scene is his home and he has shoes and clothes 

 8   in his home, and so if he says he stabbed her in the 

 9   post-admission narrative, we can compare that to physical 

 10   evidence at the crime scene at the home such as his 

 11   clothes and anything you would expect to be evidence of 

 12   the fact that he stabbed her, and there is none. 

 13   I thought I was actually inside the question, as I 

 14   understood it.

 15        Q.    It sounds to me like you're going ahead and 

 16   making the comparison between his statement, "I stabbed 

 17   her three times," and the crime scene facts. 

 18              I understand, but I'm not interested in making 

 19   that comparison right now.  What I'm interested in knowing 

 20   is the universe of items of information that we're going 

 21   to be comparing when making this analysis.

 22              So far in that universe I hear you to include 

 23   his statement that he stabbed her three times.

 24              I want to know if there is anything else in the 

 25   post-admission narrative that is a piece of admission that 

 26   can be compared to the crime facts.

 27        A.    I would have to go through it again to tell you 

 28   what else.  I'm telling you, that's all I recall.  There 

     Peterson & Associates Court Reporting, Inc.               27




 1   may be other information.  That specific statement about 

 2   stabbing her, but it's not -- not just that statement, but 

 3   it's everything else that he says that can be compared 

 4   that would be within the universe.

 5        Q.    That's what I want you to identify for me.  

 6   What other things did he say that are in that universe?  

 7   My understanding is you're saying you can't recall 

 8   anything else about this one statement about how many 

 9   times he stabbed her; is that correct?

 10        A.    At the moment, that's right, but if somebody 

 11   were to provide me the post-admission portion of his 

 12   interrogation at a break and I were able to review it, I 

 13   might be able to identify other specific points of 

 14   comparison as well, if I understand your question 

 15   correctly.

 16        Q.    But you understood that you were to be prepared 

 17   to offer your opinions and testify about this case as of 

 18   today, the date of your deposition; correct?  You knew 

 19   that before you came in here?

 20              MR. ARNELL:  There's a mountain of paperwork in 

 21   this case and no witness can be expected to pull every 

 22   fact, not knowing your questions ahead of time, out of 

 23   thin air.

 24              If you have a document you want him to review 

 25   to get more information that's been marked as an exhibit, 

 26   why don't we show it to him.

 27              MR. WAGGONER:  Counsel, if you want to make an 

 28   objection, make your objection.

     Peterson & Associates Court Reporting, Inc.               28




 1              MR. ARNELL:  That's my objection.

 2              MR. WAGGONER:  That's not an objection.

 3              MR. ARNELL:  It's overbroad, calls for 

 4   speculation without showing him any document you want him 

 5   to talk about.

 6              MR. TAYLOR:  It's argumentative. 

 7              THE WITNESS:  As I mentioned earlier, I've been 

 8   deposed eight times before so I've been through this 

 9   process.

 10              In my experience in depositions, at least in 

 11   civil cases, usually there are particular questions about 

 12   the report that I've written, but it's not my 

 13   understanding that I have to master all the key details 

 14   and all the documents that may have been provided to me.   

 15              If I had been provided with interrogatories and 

 16   had time to know exactly which questions you were asking, 

 17   needless to say, I could have gone through a particular 

 18   document.

 19   BY MR. WAGGONER:

 20        Q.    When I asked you earlier about the extent of 

 21   your opinions, you said your opinion is not only that, in 

 22   your vernacular, Michael Crowe's interrogation produced a 

 23   coerced, persuaded confession, but it produced a coerced, 

 24   persuaded, false confession.  

 25              What I want you to do is tell me what is the 

 26   basis for that portion of that label that you're putting 

 27   on that interrogation that says it's false -- 

 28        A.    I'm just going to get some water.

     Peterson & Associates Court Reporting, Inc.               29




 1        Q.    Let me finish -- as opposed to a coerced, 

 2   persuaded, true admission.  You admit you can have a 

 3   coerced, persuaded confession that is either true or 

 4   false; correct?

 5        A.    I think you can have a coerced confession that 

 6   is either true or false.  I don't know that it's logically 

 7   possible to have a coerced -- maybe it is logically

 8   possible, but highly unlikely to have a coerced -- it's 

 9   possible to have a coerced, true confession and a coerced, 

 10   false confession.

 11        Q.    What I want to focus on is not -- in response 

 12   to this particular question, I'm not interested in 

 13   focusing on why you believe it's coerced, but why you 

 14   believe that coercion produced a false confession as 

 15   opposed to a true confession.  We can take a break.

 16        A.    We don't need to take a break if I can grab 

 17   water real quick.

 18              As I understand your question, you want me to 

 19   tell you what the basis is for my opinion that

 20   Michael Crowe's confession is false, and there are a 

 21   number of reasons why I believe this is a false 

 22   confession.

 23              The primary reason is because there was 

 24   absolutely no physical evidence linking him to the crime 

 25   as you would expect there to be if, in fact, he committed 

 26   this crime and, yet, there was substantial evidence, in my 

 27   opinion, linking somebody else to the crime, dispositive 

 28   evidence, by Richard Tuite. 

     Peterson & Associates Court Reporting, Inc.               30




 1              So the blood of the victim, Stephanie Crowe, 

 2   was found on Richard Tuite's shirt, which I think is the 

 3   most significant fact in any analysis of whether this is a 

 4   true or a false confession. 

 5              Two experts' reports that I've read -- I should

 6   say one expert's report, Dr. Thornton -- I'm aware of 

 7   another, Dr. Blake.  Both believe that blood wasn't an 

 8   airborne spatter pattern which would be consistent with

 9   Richard Tuite having killed Stephanie Crowe.

 10              If one looks at the accounts given by Crowe and 

 11   primarily Treadway, there are a number of things that you 

 12   would expect.

 13              There's no blood in the sink.  There's no blood 

 14   in the kitchen.  There's no blood on the Best Defense

 15   knife.  There's no blood on anyone's clothing.  All of 

 16   these things should be true if those confessions or 

 17   admissions are true. 

 18              There is the error that I mentioned earlier.  

 19   The guessing of three stabs as opposed to nine stabs 

 20   establishes the fact that Michael Crowe does not -- seems 

 21   to know very little about how the crime actually occurred, 

 22   that he can tell them nothing.  His post-admission 

 23   narrative is mostly about the ignorance of the crime scene 

 24   facts. 

 25              There's also time of death issues, but that 

 26   really goes more to Treadway.  I would say these are my 

 27   primary reasons and emphasize the evidence linking

 28   Richard Tuite, who I understand even admitted being in the 

     Peterson & Associates Court Reporting, Inc.               31




 1   house and was sighted by neighbors being in the area and 

 2   of course has a criminal history of violence.

 3              All of these factors would be the basis for my 

 4   opinion, but primarily the blood of the victim found on 

 5   Richard Tuite's shirt.

 6        Q.    You mentioned the lack of blood in the sink.  

 7   What sink are you referring to?

 8        A.    The kitchen sink.

 9        Q.    Why would the lack of blood in the kitchen sink 

 10   have anything whatsoever to do with determining the truth 

 11   of Michael Crowe's confession?

 12        A.    It would go to Joshua Treadway's.

 13        Q.    So Michael Crowe never said anything about 

 14   blood that would indicate there should be blood in the 

 15   kitchen sink; correct?

 16        A.    Correct.

 17        Q.    You mentioned blood on the knife.  What knife 

 18   were you referring to?

 19        A.    The Best Defense knife.

 20        Q.    What about Michael Crowe's confession would 

 21   lead you to believe there should be blood on that knife?

 22        A.    My recollection is nothing because he didn't 

 23   mention that knife specifically.  If my recollection is 

 24   accurate, it would just be Joshua Treadway's 

 25   interrogation.

 26        Q.    Those pieces of information don't have any 

 27   relevance to establishing the veracity or the truth of 

 28   Michael Crowe's confession; isn't that correct?

     Peterson & Associates Court Reporting, Inc.               32




 1        A.    Well, I think yes.  If one infers

 2   Michael Crowe's guilt from things that were said by

 3   Joshua Treadway, that would be where they're relevant. 

 4              If one just looks at Michael Crowe's statements 

 5   in isolation, correct.

 6        Q.    You're not an expert on blood spatter 

 7   interpretation?

 8        A.    Correct.

 9        Q.    You're not an expert in any field that would 

 10   give you an ability to opine whether or not a weapon 

 11   should or shouldn't have blood on it after it's been used 

 12   in a given fashion?

 13        A.    Correct.  I rely on the opinions of other 

 14   experts.

 15        Q.    Have you reviewed the depositions of these 

 16   other experts that you've relied on, such as Dr. Thornton?

 17        A.    No.

 18              MR. ARNELL:  I don't believe it's available 

 19   yet, for the record.

 20   BY MR. WAGGONER:

 21        Q.    Have you reviewed any of the reports of experts 

 22   hired by the civil defense attorneys in opposition to 

 23   these experts that you've reviewed?

 24        A.    No.  The only reports that I've reviewed are 

 25   the ones that I mentioned.  I believe Mr. Buckley's 

 26   report, and if I recall correctly, Mr. Cary's report, but 

 27   those don't go to physical evidence that you're speaking 

 28   of.

     Peterson & Associates Court Reporting, Inc.               33




 1        Q.    As a general proposition, when you're making 

 2   the analysis of how well a post-admission narrative fits 

 3   the crime scene facts, how close does the fit have to be 

 4   before you decide, yes, this one is a true confession or 

 5   how far off does it have to be before one decides yes, 

 6   this confession is false?  Where along that continuum is 

 7   the dividing -- 

 8        A.    One can determine -- let me start with the end 

 9   of the question and work back. 

 10              With regard to a false confession or a false 

 11   admission, that the admission is false in the absence of a 

 12   post-admission narrative, if external evidence, like I 

 13   mentioned earlier dispositively identifies or proves that

 14   another person did the crime.  So you could determine that 

 15   a confession or admission is false independent of the 

 16   post-admission narrative.

 17              With regard to whether a confession is false,  

 18   it's not always the case that the facts of the case will 

 19   allow for that.  There's no mathematical formula when you 

 20   apply the post-admission narrative, but there's some 

 21   obvious general principles involved.  This is responsive 

 22   to your question. 

 23              What you want to know, you want to look at the 

 24   details of the post-admission narrative that were not 

 25   suggested to the person or they did not previously know 

 26   and the likelihood of guessing those by chance, how 

 27   probable or improbable they were.

 28              If you ask somebody whether or not the body is 

     Peterson & Associates Court Reporting, Inc.               34




 1   up or face down, you can guess.  If somebody leads you to 

 2   the murder weapon or to a buried body or describes a 

 3   killing or crime that occurred in a very idiosyncratic way 

 4   and there's no way somebody would know on their own that 

 5   one key fact, if uncontaminated or not the product of 

 6   suggestion or prior knowledge could be enough to make a 

 7   post-admission narrative that was consistent with guilt. 

 8              So to think of it in terms of false confession 

 9   and true confession or what's consistent with a true 

 10   confession, what's consistent with a false confession, if 

 11   the confessor provides detail that could not have been 

 12   guessed by chance or would have been one in a million, one 

 13   in ten million, one significant detail that could be not a 

 14   guess by chance, was not the product of contamination or 

 15   prior suggestion or prior knowledge, that might be enough 

 16   to reach the conclusion that the post-admission narrative 

 17   is consistent with a reliable confession. 

 18              If you have a number of errors -- moving to 

 19   what's consistent with an unreliable or false 

 20   confession -- if you have a number of errors and no 

 21   demonstration of independent knowledge, that is consistent 

 22   with an unreliable confession or admission, but there is 

 23   no point at which the lack of fit in the post-admission 

 24   narrative can absolutely prove the confession is false.  

 25   It can only be consistent with a false confession, 

 26   strongly consistent, overwhelmingly consistent. 

 27              The only way you can prove to 100 percent 

 28   certainty that confession is false is if you can show that 

     Peterson & Associates Court Reporting, Inc.               35




 1   no crime occurred, that it was physically impossible for 

 2   the confessor to have committed the crime.  That 

 3   scientific evidence dispositively absolves or exonerates 

 4   the defendant, which I believe occurred here, or if the 

 5   true perpetrator was identified, as I also believe 

 6   occurred.

 7        Q.    If there is a mixed bag, so to speak, where the 

 8   post-admission narrative has some facts that one could 

 9   argue fit the crime scene facts and some that don't, what, 

 10   in your training, experience, education makes you an 

 11   expert at determining at what point do we now decide that 

 12   this one is true or false, that the facts have lined up 

 13   sufficiently or they haven't lined up sufficiently?

 14        A.    I answered earlier about the education and the 

 15   research and the training where I studied and taught and 

 16   applied and have written about post-admission narratives.  

 17              So I would just, with regard to part of the 

 18   answer to the question, I would say all of that makes me 

 19   an expert in this area:  the study of interrogation, 

 20   coercion and false confession, one part which is the 

 21   post-admission narrative. 

 22              There are three possibilities when you evaluate 

 23   a post-admission narrative:  that the statement is 

 24   consistent with a reliable and true confession; that 

 25   there's no way of telling because it's a badly 

 26   contaminated post-admission narrative or the interrogation 

 27   is not preserved and there's no way of knowing what part 

 28   of the suggestion came from the confessor and what came 

     Peterson & Associates Court Reporting, Inc.               36




 1   from outside sources or perhaps no way of knowing prior 

 2   knowledge. 

 3              Then the determination that it's consistent 

 4   with a reliable and -- unreliable, rather, confession. 

 5              I can't give you a mathematical formula.  I 

 6   can't tell you precisely at what point one might make one 

 7   judgment as to another.  I can only tell you general 

 8   principles and then apply them to a particular case.  I 

 9   laid out the general principles in an earlier answer. 

 10              If, as you say in this question, you had a

 11   mixed bag, you had some hits and some misses in that 

 12   post-admission narrative, the first question that you want 

 13   to know is, what came from the interrogator and what was 

 14   the prior knowledge of the suspect.

 15              If the suspect had no prior knowledge through 

 16   media exposure or gossip or personal knowledge of the 

 17   crime or its participants -- if the confessor had no prior 

 18   knowledge, and if you can demonstrate that there was no 

 19   suggestion, no contamination, and if in that grab bag of 

 20   details that there were accurate and details that were 

 21   inaccurate, the details that were accurate were highly 

 22   unlikely to be guessed at by chance, such as leading to or 

 23   saying where implements at remote locations were buried in 

 24   difficult to find ways, for example, then I think one 

 25   would go to the conclusion that that's consistent with a 

 26   reliable post-admission narrative. 

 27              If on the other hand there is a mix and one can 

 28   demonstrate that the person is only repeating knowledge 

     Peterson & Associates Court Reporting, Inc.               37




 1   that he had in the accurate details, repeating knowledge 

 2   that he knew previous to the interrogation or that he 

 3   could have easily guessed at by chance or that they are 

 4   the product of feeding and leading suggestions by the 

 5   interrogator or police or interrogators, then that would 

 6   lead to the opposite judgment, that it's not probative, 

 7   the correct details, and the errors are more probative 

 8   than that.  They would be more consistent with an 

 9   unreliable or false confession.

 10              MR. LOEDING:  I would object that that response 

 11   is nonresponsive to the question which I think is what 

 12   makes you an expert in terms of analyzing evidence in 

 13   determining whether a confession is true or false.  I 

 14   don't remember the question.

 15   BY MR. WAGGONER:

 16        Q.    Is that the question you were trying to 

 17   answer?  I think he stated it correctly.

 18              MR. ARNELL:  I think it was responsive to the 

 19   question.  If you have anything to add to that answer, 

 20   feel free. 

 21              THE WITNESS:  My understanding, to answer your 

 22   question, that was not the question that he asked. 

 23              The question, and I could be wrong -- it's on 

 24   the record.  The question he (indicating) remembers was 

 25   asked earlier.  I think you asked a compound question so 

 26   you asked not only a question you asked earlier about my 

 27   expertise, but you also hypothesized a scenario where 

 28   there was a grab bag, true/false, how do you do it.  I 

     Peterson & Associates Court Reporting, Inc.               38




 1   thought I was answering both questions.

 2   BY MR. WAGGONER:

 3        Q.    You said you reviewed Judge Thompson's ruling.  

 4   What was your understanding of his ruling about the 

 5   confessions in this case?

 6        A.    My understanding of his ruling was that

 7   Michael Crowe's interrogation was coercive.  His 

 8   statements were, therefore, involuntary and had to be 

 9   suppressed. 

 10              Joshua Treadway's first interrogation on the 

 11   27th and 28th were coercive, the statements were 

 12   involuntary, they had to be suppressed. 

 13              Joshua Treadway's second interrogation on 

 14   February 10th, the statements were voluntary on the 14th 

 15   amendment analysis, but had to be suppressed up to the 

 16   last two hours because no Miranda warnings were given and 

 17   so only the last two hours or so after the Miranda 

 18   warnings were given were admissible. 

 19              Then, finally, turning to Aaron Houser, the 

 20   statements were voluntary, but inadmissible because of 

 21   Miranda violations.  That's my recollection.

 22        Q.    I hope I'm not confusing you with someone else.  

 23   You have a Ph.D. and a J.D.; correct?

 24        A.    Correct.

 25        Q.    What law school did you go to?

 26        A.    Bolt, UC Berkeley.

 27        Q.    Have you ever practiced as an attorney?

 28        A.    No.  I've never taken the bar or practiced.

     Peterson & Associates Court Reporting, Inc.               39




 1        Q.    Do you have an understanding from your law 

 2   school education of why the judge would be making the 

 3   ruling on the February 10th statements of Joshua Treadway, 

 4   the pre-Miranda statements, as to whether or not they were 

 5   voluntary if he's going to rule that they're inadmissible 

 6   because of lack of Miranda anyway?  Why does he go ahead 

 7   and make the ruling that they're voluntary?

 8              MR. TAYLOR:  I'll object.  It's outside the 

 9   scope of his expertise.

 10              MR. ARNELL:  I'll join.  Also calls for 

 11   speculation.

 12              MR. WAGGONER:  Gosh, I hope it's not 

 13   speculative from a graduate of Bolt Hall.

 14              MR. ARNELL:  It's speculative as to what the 

 15   judge was thinking when he made his rulings.

 16              MR. WAGGONER:  I'm still hoping someone from 

 17   Bolt Hall can give us a good answer to that.

 18              THE WITNESS:  I think I can answer generally.  

 19   I would just say that I did not read the motions prepared 

 20   by the defense in the criminal case on the multiple 

 21   grounds or the grounds on which they were trying to 

 22   suppress a confession. 

 23              As a general matter, though, defense attorneys 

 24   sometimes will try to suppress the confession on multiple 

 25   grounds:  violations of the 5th and 14th, primarily, 

 26   sometimes the 6th amendment.

 27              It may have been that the defense in that case 

 28   was trying to get the confession suppressed both with 

     Peterson & Associates Court Reporting, Inc.               40




 1   regard to the 5th amendment Miranda violations and due 

 2   process violations and that the judge had to make those 

 3   separate determinations, and in the judge's opinion, there 

 4   wasn't a 14th amendment violation, but there was a 5th 

 5   amendment violation.

 6              Once that 5th amendment violation was 

 7   attenuated, in the opinion, by the giving of the Miranda 

 8   warnings, there was no longer a 5th amendment violation.

 9   BY MR. WAGGONER:

 10        Q.    Do you recall from law school or from your 

 11   reading sense that there is U.S. Supreme Court case law

 12   that says, if there is a violation of Miranda, that is, 

 13   simply a violation of Miranda, but that there is, 

 14   nevertheless, a voluntary statement obtained from the 

 15   suspect such that Miranda causes that statement to be 

 16   inadmissible but it's, nevertheless, a voluntary 

 17   statement, one that is voluntarily made, that in that 

 18   case, although because of Miranda and its inadmissibility, 

 19   the prosecution cannot introduce that statement in its 

 20   case-in-chief?

 21              The U.S. Supreme Court has said, in that 

 22   situation, nevertheless, if that person takes the stand, 

 23   the prosecution agrees to impeach that suspect.  Do you 

 24   recall that law?

 25        A.    Yes, I do.  New York -v- Harris, 1971 case, I 

 26   think.  It establishes the impeachment exception.

 27        Q.    It would be consistent with the judge's duty to 

 28   let the prosecution know that they can use

     Peterson & Associates Court Reporting, Inc.               41




 1   Joshua Treadway's February 10th statement pre-Miranda as 

 2   impeachment material if he takes the stand for him to go 

 3   ahead and make that finding that that pre-Miranda portion 

 4   of his statement is voluntary; isn't that right?

 5              MR. TAYLOR:  Again, I think this is outside 

 6   his area of expertise. 

 7              THE WITNESS:  I was a little confused by the 

 8   way you worded that question.  I think the answer is yes, 

 9   but I'm a little bit confused by the question because, as 

 10   I understand it, the judges don't have obligations to 

 11   inform prosecutors or defense attorneys how to litigate 

 12   their cases, and judges respond to motions that are 

 13   brought before them, and the presumption is, of course, 

 14   prosecutors and defense attorneys will know the law. 

 15              I think that is an important fact in a 

 16   suppression hearing.  If there is a Miranda violation, 

 17   there is also a 14th amendment due process violation 

 18   because the impeachment exception that applies to Miranda 

 19   does not apply to the 14th amendment. 

 20              So if a judge finds hypothetically there is a 

 21   Miranda violation and there is a due process voluntary 

 22   violation, if the person takes the stand, presumably they 

 23   couldn't be impeached.

 24   BY MR. WAGGONER:

 25        Q.    Do you understand from Judge Thompson's rulings 

 26   that in ruling that Joshua Treadway's statements 

 27   throughout the day on February 10th were uncoerced and 

 28   were not the product of any coercion that had occurred 

     Peterson & Associates Court Reporting, Inc.               42




 1   back on the 27th and 28th of January, that in that ruling, 

 2   he is in stark disagreement with your opinion that that 

 3   statement of Joshua Treadway on February 10th is the 

 4   product of coercion?

 5        A.    Yes.  My opinion differs from Judge Thompson's 

 6   opinion.

 7        Q.    You have a copy of your November 30th, 2002 

 8   report; correct?

 9        A.    I believe that I do.  Yes, I do.

 10        Q.    Attached to that report near the back of it is 

 11   a portion labeled Dr. Richard Leo's court testimony and 

 12   deposition testimony from November '98 to November 2002.  

 13   Do you have that portion?

 14        A.    I do not have that with me, no.

 15        Q.    Hopefully you can -- 

 16        A.    I inadvertently forgot to bring that.

 17        Q.    I'm going to ask you questions about that and 

 18   we can share this. 

 19              Otherwise, you list the various cases that 

 20   you've testified in.  The first one is State of California 

 21   versus Phillip Kendrick; is that correct?

 22        A.    Correct, in that four-year period.

 23        Q.    Do you recall what that case was about?  I just 

 24   want a yes or no response.

 25        A.    I recall some aspects of the case, not a lot.

 26        Q.    Do you recall, when you testified, that was a 

 27   judge trial or a jury trial?

 28        A.    My recollection is I testified at the 

     Peterson & Associates Court Reporting, Inc.               43




 1   suppression motion.  I didn't testify at that trial.

 2              Actually, it may not have been a suppression 

 3   motion.  It may have been a motion in limine.  It may have 

 4   been a preliminary hearing.  It was a pre-trial motion.  

 5   The effort was being made by the defense to suppress the 

 6   confession.

 7        Q.    Was the subject of your testimony an opinion by 

 8   you that the defendant in that case had been coerced into 

 9   providing a false confession?

 10        A.    That's not my recollection.  Of course, if the 

 11   transcript exists, then that could answer the question, 

 12   but my recollection is that the testimony at this 

 13   preliminary hearing was not about reliability issues.  It 

 14   was not about whether it was a false or unreliable 

 15   confession.  It was about the techniques used by the 

 16   interrogator and whether those techniques were coercive or 

 17   not, but there was a lot of general testimony about the 

 18   Reid method and about police interrogations, psychological 

 19   process, what the techniques are, how they work, when, 

 20   why, whether they're coercive, that sort of thing.

 21        Q.    You said the Reid method?

 22        A.    Spelled R-e-i-d, yes.

 23        Q.    So your testimony, other than -- I realize it 

 24   had a lot of general information in it as well, but 

 25   basically the conclusion of your testimony in that case 

 26   was that the defendant's confession was coerced, but you 

 27   didn't go beyond that as to whether or not it was false or 

 28   true.  Is that a fair statement?

     Peterson & Associates Court Reporting, Inc.               44




 1        A.    Yes, I think so, with this qualification.  

 2   Sometimes at these pretrial hearings on the issue of 

 3   coercion or volunteeringness, the judge elicits or

 4   permits my opinion on whether or not I think it's coercive 

 5   and sometimes the judge just wants general information.

 6              I do not recall specifically in this case I 

 7   just talked generally about coercion and interrogation, 

 8   psychology of interrogation and confession or whether I 

 9   was asked specifically to opine about the particular case.

 10        Q.    Do you have an understanding of why, in some 

 11   cases, a judge would limit your testimony to the simple 

 12   concepts about coercion and interrogations, in general, 

 13   and not allow you to go forward and opine about whether or 

 14   not this particular confession was coerced or whether or 

 15   not a particular tactic was, in fact, coerced?

 16        A.    Yes.

 17        Q.    What's your understanding of that?

 18        A.    My understanding is that prosecutors often make 

 19   the argument it would invade the province of the jury to 

 20   let the expert opine about whether the interrogation was

 21   coercive or true or false.  In pretrial hearings, the 

 22   issue is usually not whether the confession was true or 

 23   false. 

 24              So in my experience, prosecutors will make that 

 25   argument.  In my experience, usually the judge will reject 

 26   it in the pretrial hearing.  They will want to know 

 27   whether or not it's coercive or improper.  But at the 

 28   trial, when the same argument is made, the judge will 

     Peterson & Associates Court Reporting, Inc.               45




 1   usually accept it.

 2        Q.    Have you kept records of how many times in all 

 3   this previous testimony you've actually been allowed to 

 4   testify to a jury or to a judge during the trial, not 

 5   during the pretrial, on the issue of whether or not the 

 6   subject confession was, in fact, coerced and/or false or 

 7   true?

 8        A.    Well, I have kept records on the times that 

 9   I've been permitted to testify or have testified, but the 

 10   second part of your question, I have not kept specific 

 11   records on what I've been permitted to testify or 

 12   qualified in. 

 13              Each case presents unique case facts and 

 14   sometimes I'm qualified differently and asked different 

 15   questions, but yes, I do have a breakdown of the number of 

 16   times that I've testified before a jury and/or bench trial 

 17   as well as suppression hearings or pretrial hearings as 

 18   well as post-conviction hearings.

 19        Q.    That's a document that we haven't been 

 20   provided?

 21        A.    Correct.  It wasn't my understanding that you 

 22   asked for this document, but I have no problem providing 

 23   the document as long as I get it back.

 24        Q.    Admitting that you don't have this document, 

 25   can you give me an estimate of the percentage of times 

 26   you've testified, not pretrial, but during a trial,

 27   whether judge or jury -- can you give me an estimate of 

 28   the percentage of times that in that testimony you've 

     Peterson & Associates Court Reporting, Inc.               46




 1   actually been allowed to opine as to whether or not the 

 2   subject confession was, in fact, coerced?

 3              MR. ARNELL:  Are you talking criminal cases or 

 4   criminal and/or civil or the entire universe?

 5              MR. WAGGONER:  The entire universe. 

 6              THE WITNESS:  The number -- I've testified 47 

 7   times at jury or bench trials.  I was thinking as you 

 8   asked the question.  I want to make sure I recall the 

 9   question. 

 10              The number of times that I've been permitted to 

 11   opine at trial that the confession was coerced?

 12   BY MR. WAGGONER:

 13        Q.    Was or was not coerced, either way.

 14              MR. ARNELL:  I think you asked for the 

 15   percentage.

 16              THE WITNESS:  I don't know the percentage of 

 17   cases in which I would have been able to opine that.

 18   BY MR. WAGGONER:

 19        Q.    Would it help you provide an estimate if you 

 20   were asked whether the number of times or percentage of 

 21   times -- it doesn't matter to me -- can you give me any 

 22   estimate at all?

 23        A.    I really don't recall.  It would have to be a 

 24   complete guess, but I would say a very small percentage of 

 25   cases where the judge would permit me to opine whether or 

 26   not the actual interrogation itself was coerced.  Possibly 

 27   none of the cases. 

 28              Questions may have been asked hypothetically, 

     Peterson & Associates Court Reporting, Inc.               47




 1   if they did this, this and this, was that coerced which is 

 2   based on what occurred in the interrogation.

 3        Q.    The second question, basically, how many times 

 4   out of that total number of times you've testified at 

 5   trial, how many times, expressed as a number or 

 6   percentage, have you been permitted to testify that the 

 7   subject confession was or was not false?

 8        A.    I don't think I've ever been permitted to 

 9   testify as to that.

 10        Q.    Let's go back to State of California versus 

 11   **Kendrick.  You said you testified, as you recall, in 

 12   some type of a pretrial motion hearing; correct?

 13        A.    Yes.  After you asked me that question,

 14   Mr. Arnell provided me with the actual document that 

 15   you're referring to.  It says testified at preliminary 

 16   hearing.  If the document is accurate, it was a 

 17   preliminary hearing.  If not, it was some other pretrial 

 18   hearing.

 19        Q.    Do you recall as you sit here today what your 

 20   opinion was as to the confession that was the subject of 

 21   that preliminary hearing -- did you have an opinion 

 22   whether it was a coerced confession or a false confession 

 23   or a non-coerced confession?

 24        A.    My recollection which is vague at this point is 

 25   that I was not asked to opine about whether or not it was 

 26   a false confession. 

 27              My opinion was that there were coercive 

 28   techniques used in the interrogation or interrogations 

     Peterson & Associates Court Reporting, Inc.               48




 1   that produced that confession.

 2        Q.    The coercive techniques that you opined that 

 3   were used in that interrogation were employed by police 

 4   officers; correct?

 5        A.    Police interrogators is my recollection.

 6        Q.    It was some law enforcement officer?

 7        A.    Correct.

 8        Q.    Do you know whether the confession was or was 

 9   not suppressed in that case?

 10        A.    No, I don't.

 11        Q.    You don't know what the ultimate ruling was?

 12        A.    No.

 13        Q.    In the State of California versus **Rodelio 

 14   Lopez, it says you testified there in a motion in limine; 

 15   is that correct?

 16        A.    I believe that's correct.

 17        Q.    The motion was to suppress the defendant's 

 18   confession; correct?

 19        A.    Correct.

 20        Q.    Do you recall, was it your opinion that that 

 21   confession was a coerced confession?

 22        A.    That is my recollection, yes.

 23        Q.    That's what you testified?

 24        A.    I don't know that I was permitted to give that 

 25   specific opinion.  I may have given that specific opinion, 

 26   but I believe I testified, at least generally, about 

 27   coercion and coerced confessions.  I may have testified 

 28   about the techniques in that confession and why they were 

     Peterson & Associates Court Reporting, Inc.               49




 1   coercive.

 2        Q.    Do you know what the results were as to the 

 3   judge's ruling?  Was that confession suppressed or not?

 4        A.    My recollection was I was told by the defense 

 5   attorney subsequent to the hearing that it was suppressed.

 6        Q.    State of California versus **Louis Peoples.  It 

 7   says you testified at a motion to suppress hearing; is 

 8   that correct?

 9        A.    Correct.

 10        Q.    Was it your opinion in that case that that 

 11   confession had been coerced?

 12        A.    It was my opinion.  I don't know whether I was 

 13   permitted to state that opinion at the suppression 

 14   hearing, but that was my opinion.

 15        Q.    Did you learn of the results of that motion to 

 16   suppress?

 17        A.    I learned of the results of the case.  I 

 18   believe that the defense attorney told me, if my 

 19   recollection is accurate, the confession was not 

 20   suppressed.

 21        Q.    Was it Mr. Peoples' confession you were talking 

 22   about or somebody else's?

 23        A.    Yes, Mr. Peoples' confession.

 24        Q.    Was he ultimately convicted?

 25        A.    Yes.

 26        Q.    Of the crime that he had confessed to?

 27        A.    Yes.

 28        Q.    Going back to Mr. Lopez.  Do you know what the 

     Peterson & Associates Court Reporting, Inc.               50




 1   result was as to whether or not he was convicted of the 

 2   crime that he had confessed to?

 3        A.    My recollection is that the case was dismissed 

 4   because the only evidence was the coerced confession.

 5        Q.    As to Mr. Kendrick, do you know whether or not 

 6   he was convicted of the crime that he confessed to?

 7        A.    I believe that he was convicted.  I don't know 

 8   whether he was convicted of the crime he confessed to 

 9   specifically, but I believe he was convicted.  I'm not 100 

 10   percent sure, but that's my vague recollection.

 11        Q.    No. 4, State of Washington versus Javier De

 12   Leon.

 13              MR. WAGGONER:  For the record, I'll make a copy 

 14   so you can get these names spelled correctly. 

 15   BY MR. WAGGONER:

 16        Q.    You testified at a 3.5 hearing, then in 

 17   parentheses, (pretrial suppression hearing), so I take it 

 18   that's what they call a pretrial suppression hearing in 

 19   the State of Washington?

 20        A.    That's my understanding, yes.

 21        Q.    So you did testify at a pretrial suppression 

 22   hearing in that case?

 23        A.    Correct.

 24        Q.    Did you testify that Mr. De Leon's confession 

 25   was coerced?

 26        A.    I don't recall whether I was permitted to give 

 27   that specific opinion or whether it was general testimony.

 28        Q.    Was it your opinion that his confession was 

     Peterson & Associates Court Reporting, Inc.               51




 1   coerced?

 2        A.    I have very little recollection of what 

 3   occurred during that interrogation so I would assume so,

 4   but I don't recall.  I don't recall at this point.

 5        Q.    It's unlikely the criminal defense lawyer would 

 6   call you to the stand in a case where you did not think 

 7   his client's confession was coerced; is that correct?

 8        A.    Correct.

 9        Q.    Do you recall the results of that suppression 

 10   hearing, whether or not Mr. De Leon's confession was 

 11   suppressed?

 12        A.    No, I don't recall.

 13        Q.    Do you know whether or not he was convicted of 

 14   the crimes he confessed to?

 15        A.    I know I had a conversation with the attorney 

 16   at some point.  I don't recall whether he took a plea 

 17   bargain or was convicted.  Possibly he was aquitted.  I 

 18   think he probably --

 19              MR. ARNELL:  Don't guess. 

 20              THE WITNESS:  I have a vague recollection.  I 

 21   don't know.

 22   BY MR. WAGGONER:

 23        Q.    Your best vague recollection is he was 

 24   convicted in some way?

 25        A.    My best guess would be that he was convicted.

 26        Q.    No. 5, State of Indiana versus Howard Allen.  

 27   You testified at a post-conviction evidentiary hearing?

 28        A.    Correct.

     Peterson & Associates Court Reporting, Inc.               52




 1        Q.    Do you recall what the nature of your testimony 

 2   was in that case?

 3        A.    No, I don't.

 4        Q.    How was it that your testimony would be 

 5   relevant in a post-conviction setting, just in general?

 6        A.    It depends on the issues that are being argued 

 7   on appeal.  Sometimes there are Miranda issues and I'm 

 8   asked about Miranda issues.

 9              As a general answer, there may be issues about 

 10   ineffective assistance of counsel and failure to call an

 11   expert such as myself, or failure to make an argument the 

 12   statements were voluntary and should have been 

 13   suppressed.  I might be asked to review a record and 

 14   comment whether it was coercive or there were Miranda 

 15   violations or what an expert such as myself would have 

 16   said, such as an expert who would have been called in that 

 17   particular case.

 18        Q.    You don't recall what the nature of your 

 19   testimony was in this particular post-conviction hearing?

 20        A.    Specifically, no.

 21        Q.    It's safe to say, since it's a post-conviction 

 22   hearing, Mr. Allen was convicted?

 23        A.    Prior to my involvement in the case he had been 

 24   convicted, correct.

 25        Q.    Was it your opinion that he had given a coerced 

 26   confession or do you recall?

 27        A.    I don't recall specifically, no.

 28        Q.    Do you know what the result was of the 

     Peterson & Associates Court Reporting, Inc.               53




 1   post-conviction hearing?  Was the conviction overturned in 

 2   any way?

 3        A.    I don't think the conviction was overturned.  

 4   That's my recollection.  

 5        Q.    No. 6, State of California versus Peter 

 6   Gonzales.  You testified at a pretrial suppression 

 7   hearing; correct?

 8        A.    Correct.

 9        Q.    Was it your opinion that Mr. Gonzales had given 

 10   a coerced confession?

 11        A.    I don't recall his interrogation, so I don't 

 12   know whether today as we speak that was my opinion.

 13        Q.    Do you recall what you testified about in that 

 14   case?

 15        A.    No.

 16        Q.    Do you recall whether or not Mr. Gonzales was 

 17   convicted?

 18        A.    I don't recall even the attorney that I worked 

 19   with on that case.  I suspect they didn't contact me after 

 20   the pretrial suppression.

 21        Q.    State of California versus **Tran Vu.  You 

 22   testified at trial?

 23        A.    Yes.

 24        Q.    Do you recall that testimony?

 25        A.    Specifically, no.

 26        Q.    Do you recall whether or not you had an opinion 

 27   that Mr. Vu had given a coerced confession?

 28        A.    No, I don't.  I don't recall the details of 

     Peterson & Associates Court Reporting, Inc.               54




 1   this interrogation or confession.

 2        Q.    Do you know whether or not or do you recall 

 3   whether or not Mr. Vu was convicted?

 4        A.    Again, I think in this case, the attorney did 

 5   call me and tell me he was convicted, but that's my best 

 6   recollection.

 7        Q.    No. 8, United States versus **Traun.

 8        A.    Correct.

 9        Q.    You testified at trial?

 10        A.    Correct.

 11        Q.    That was at an Air Force court marshall?

 12        A.    It was at an Air Force trial.  If they're 

 13   called court marshalls, this was a court marshall.

 14        Q.    Do you recall that testimony?

 15        A.    Yes, I do.

 16        Q.    Was it your opinion that Mr. Traun had given a 

 17   coerced confession?

 18        A.    Ms. Traun.

 19              MR. WAGGONER:  Why don't we take a five-minute 

 20   break. 

 21              (Recess taken.)

 22   BY MR. WAGGONER:

 23        Q.    I believe we're up to -- I don't remember the 

 24   conclusion on No. 8, so I guess I'll start there.

 25              It says on No. 9 you testified at trial; 

 26   correct?

 27        A.    No. 8, correct.

 28        Q.    Was it your testimony that Ms. Truan's 

     Peterson & Associates Court Reporting, Inc.               55




 1   confession was coerced?

 2        A.    My recollection is my testimony was general 

 3   about coercive interrogation and false confessions, among 

 4   other topics.

 5        Q.    I meant to ask, was it your opinion that

 6   Ms. Traun's confession was coerced?

 7        A.    Yes.

 8        Q.    Do you recall whether your testimony went 

 9   beyond just general testimony about interrogation tactics?

 10        A.    My recollection is it was only general 

 11   testimony about interrogation, coercion, false confession.

 12        Q.    You were not permitted to testify that this 

 13   particular confession was coerced or false?

 14        A.    That's my recollection, correct.

 15        Q.    Was that a bench trial or a jury trial?

 16        A.    It was a jury trial.

 17        Q.    Then do you know what the result was as to 

 18   whether or not Ms. Traun was convicted?

 19        A.    Yes, she was convicted.

 20        Q.    I assume in those cases where you're testifying 

 21   at trial, the confession has been admitted; is that 

 22   correct?

 23        A.    Correct.

 24        Q.    And despite the fact that it's been admitted 

 25   you're, nevertheless, being called to talk about it having 

 26   been or the tactics leading to coercion?

 27        A.    It depends what I'm called on.  Every case is 

 28   different, so there may be a case where I'm, for example, 

     Peterson & Associates Court Reporting, Inc.               56




 1   called to testify about issues of reliability, nothing 

 2   having to do with coercion or it may be the defense argues 

 3   the issue of coercion for the jury. 

 4              In rare cases, it may also be the case that the 

 5   confession was excluded or suppressed, but the defense 

 6   wishes to introduce the confession and calls me.

 7        Q.    It's been probably 18 years since I tried a 

 8   criminal case.  Either I'm not remembering something -- it 

 9   just seems really odd to me a judge would make a decision 

 10   that a confession can be admitted to the point where 

 11   you're now testifying in trial that the defense at that 

 12   point would be allowed to reargue to the jury whether or 

 13   not that confession was coerced.

 14        A.    My understanding of California law is that's 

 15   exactly what's permitted.  At a pretrial suppression 

 16   hearing, the judge has to make a finding as a matter of 

 17   law whether or not the statement is coercive, the 

 18   statement is suppressed or not, but the defense is 

 19   entitled to reargue that case before a jury which 

 20   ultimately has to make a finding of fact about the 

 21   person's innocence or guilt.

 22              And in making that finding, can choose whether 

 23   to discard the confession if they feel that it's 

 24   involuntary coerced and, if not, what weight to put on the 

 25   confession or confession evidence.

 26        Q.    Then your recollection is Ms. Traun was 

 27   convicted?

 28        A.    Correct.

     Peterson & Associates Court Reporting, Inc.               57




 1        Q.    No. 9, State of Washington versus Doris Green.  

 2   You testified at a post-conviction reference hearing; 

 3   correct?

 4        A.    Correct.

 5        Q.    What is a post-conviction reference hearing?

 6        A.    They call it a reference hearing.  It's a 

 7   post-conviction hearing.  My recollection is that

 8   Doris Green was convicted and her case was appealed and 

 9   there was some procedural errors at the trial, according 

 10   to the appellate judges and so the appellate judges 

 11   reviewing the conviction ordered an appellate hearing to 

 12   gather evidence on a couple of issues, one of which was 

 13   whether or not the interrogation was coerced and likely 

 14   false. 

 15              So the post-conviction reference hearing was to 

 16   gather that information which was then my understanding 

 17   presented back to the appellate court which made a 

 18   decision about whether or not to sustain or overturn the

 19   conviction.  In the end, they did overturn the 

 20   conviction.  She was released.

 21        Q.    Was it your opinion that Doris Green's 

 22   confession was coerced?

 23        A.    Yes.

 24        Q.    Were you actually permitted to testify that her 

 25   confession was coerced or did you just give general 

 26   testimony?

 27        A.    I don't recall specifically, but I may have 

 28   been permitted to do that since it was a post-conviction 

     Peterson & Associates Court Reporting, Inc.               58




 1   hearing where, typically, I'm given a lot more lag time.

 2        Q.    Was the overturning of the conviction based, in 

 3   whole or at least in part, upon a finding by the court 

 4   that Doris Green's confession was coerced?

 5        A.    I believe so.  Coerced and/or false, yes.

 6        Q.    Do you know if that resulted in a published 

 7   court opinion?

 8        A.    I do not know whether it resulted in a 

 9   published court appellate opinion.  It may have, but I 

 10   don't know.

 11        Q.    No. 10, United States Military versus Patrick 

 12   Willingham.  You testified at a pretrial suppression 

 13   hearing?

 14        A.    Correct.

 15        Q.    Was it your opinion that Mr. Willingham had 

 16   given a coerced confession?

 17        A.    I don't recall the specifics of that.  I don't 

 18   recall.  I would have to go back and look at my notes.

 19        Q.    Do you recall whether or not Mr. Willingham was 

 20   convicted?

 21        A.    My vague recollection is the confession was 

 22   suppressed and he was not convicted.  I would have to 

 23   confirm that.

 24        Q.    No. 11, Bernard Rhodes versus State of 

 25   Missouri.  You testified at a post-conviction suppression 

 26   hearing?

 27        A.    Correct.

 28        Q.    Was it your opinion that -- I don't know who 

     Peterson & Associates Court Reporting, Inc.               59




 1   the defendant would be on that.  It wouldn't be Rhodes, 

 2   would it?

 3        A.    That's who I understood to be the defendant.  I 

 4   think I was taking the caption from either what the 

 5   defense attorney told me or what was on the motions that I 

 6   may have been provided.

 7        Q.    This may have been some type of writ hearing 

 8   where his name would be first. 

 9              So was it your opinion that Mr. Rhodes had 

 10   given a coerced confession?

 11        A.    I don't recall.  I think -- I'd have to 

 12   confirm, but I think these were about Miranda issues, not 

 13   about coercion issues, and my testimony was about Miranda 

 14   issues.

 15        Q.    Do you know whether Mr. Rhodes' conviction was 

 16   in any way overturned?

 17        A.    I don't recall that it was or that I was told 

 18   that it was.

 19        Q.    No. 12, State of California versus De Weaver.  

 20   You testified at a pretrial suppression hearing?

 21        A.    Correct.

 22        Q.    Was it your opinion that Mr. De Weaver had 

 23   given a coerced confession?

 24        A.    I don't recall specifically if I formed an 

 25   opinion about whether or not his confession was coerced.

 26        Q.    Do you know whether or not Mr. De Weaver was 

 27   convicted?

 28        A.    That is my recollection.  Yes, he was 

     Peterson & Associates Court Reporting, Inc.               60




 1   convicted.

 2        Q.    Do you know whether or not his confession was 

 3   suppressed?

 4        A.    I do not believe it was suppressed.

 5        Q.    No. 13, State of Connecticut versus Travis 

 6   Wright.

 7              You testified at a pretrial suppression 

 8   hearing; correct?

 9        A.    Correct.

 10        Q.    Was it your opinion that Mr. Wright had given a 

 11   coerced confession?

 12        A.    I believe so.

 13        Q.    Do you know what the results were of the 

 14   pretrial suppression hearing?

 15        A.    I believe the confession was admitted and he 

 16   was later convicted.

 17        Q.    No. 14, State of California versus Kenneth 

 18   Cowling.  You testified at trial?

 19        A.    Yes.

 20        Q.    Was it your opinion that Mr. Cowling had given 

 21   a coerced confession?

 22        A.    A false confession, yes, in response to coerced 

 23   police procedures.

 24        Q.    Your opinion was it was a coerced, false 

 25   confession?

 26        A.    Correct.

 27        Q.    Do you recall what you were permitted to 

 28   testify about?

     Peterson & Associates Court Reporting, Inc.               61




 1        A.    My recollection is it was general testimony 

 2   about interrogation, psychology, interrogation, 

 3   confession, false confessions, causes, fact, inditia of 

 4   false confessions.  Not specific testimony.

 5        Q.    Just for shorthanding this, I'll ask you if you 

 6   can agree to this terminology and maybe we can short 

 7   circuit some of the length of this. 

 8              When I ask these questions and I ask, were you 

 9   allowed to testify just in general, what I'm asking is the 

 10   information you just conveyed as to what you mean by 

 11   general testimony.  If you just say yes, we'll presume it 

 12   adopts the answer you just gave as to what general 

 13   testimony is.

 14        A.    Okay.

 15        Q.    And then if I ask were you specifically allowed 

 16   to testify whether a given confession was coerced or 

 17   false, that would be a separate question.

 18              I understand your answer on this one was, when 

 19   you say not specific testimony, you were not allowed to 

 20   say that this particular confession was coerced or false; 

 21   is that correct?

 22        A.    That's my recollection, yes.

 23        Q.    Would you agree with me we can adopt that 

 24   terminology and proceed quicker?

 25        A.    I'll do my best.

 26        Q.    Did you have an opinion that Mr. Cowling had 

 27   given a coerced, false confession?

 28        A.    Yes.

     Peterson & Associates Court Reporting, Inc.               62




 1        Q.    Do you know what the result was of this trial?  

 2   Was he convicted?

 3        A.    No.  He was acquitted.

 4        Q.    No. 15, United States Military versus Special 

 5   Airman John Ford.  You testified at trial?

 6        A.    Correct.

 7        Q.    Did you have an opinion that Special Airman 

 8   John Ford had given a false, coerced confession?

 9        A.    My recollection is that there was no confession 

 10   in this case.  The dispute was whether or not what he told 

 11   investigators constituted a confession.  That was the 

 12   issue.

 13        Q.    Did you have an opinion that what he told the 

 14   investigators, just the statements that he made, whether 

 15   they are a confession or not, those statements were the 

 16   product of coercion?

 17        A.    They were the product of interrogation.  I 

 18   don't recall if they were the product of coercion.

 19        Q.    Do you recall whether he was convicted?

 20        A.    He was aquitted.

 21        Q.    In that trial, do you recall whether you were 

 22   permitted to testify beyond the general matters?

 23        A.    No.

 24        Q.    I'm sorry.  It was a bad question.  No, you 

 25   don't recall, or, no, you weren't permitted to testify 

 26   beyond general matters?

 27        A.    I don't recall.

 28        Q.    No. 16, State of New York versus Michelle 

     Peterson & Associates Court Reporting, Inc.               63




 1   Davis.

 2              You testified at a pretrial suppression 

 3   hearing?

 4        A.    Correct.

 5        Q.    Was it your opinion that Michelle Davis had 

 6   given a coerced, false confession?

 7        A.    Yes.  It was my opinion she had given a coerced 

 8   confession.  I don't know if I was asked to opine whether 

 9   it was true or false.  I may have.  I just don't recall.

 10        Q.    Do you know what the results of the suppression 

 11   hearing were?

 12        A.    I believe the statements were admitted.

 13        Q.    Do you know if Ms. Davis was convicted?

 14        A.    Yes.

 15        Q.    Was she convicted?

 16        A.    Yes -- she took a plea bargain.

 17        Q.    No. 17, State of California versus Trent Fouts.

 18              You testified at trial?

 19        A.    Correct.

 20        Q.    Was it your opinion that Trent Fouts had given 

 21   a coerced confession?

 22        A.    I don't recall.

 23        Q.    Do you recall whether your testimony went 

 24   beyond general matters?

 25        A.    I don't recall that, either.

 26        Q.    Do you recall whether or not Mr. Fouts was 

 27   convicted?

 28        A.    Yes, he was convicted.

     Peterson & Associates Court Reporting, Inc.               64




 1        Q.    No. 18, State of Colorado versus Rhonda Pitts.  

 2              You testified at trial?

 3        A.    Correct.

 4        Q.    Do you recall whether your opinion was that 

 5   Rhonda Pitts had given a coerced confession?

 6        A.    I do not recall the facts of this case 

 7   specifically.

 8        Q.    On those that you don't recall, what is the 

 9   likelihood that you would be called in a case of this 

 10   nature, a criminal case, where you did not have an opinion 

 11   that the subject confession was coerced?

 12        A.    Do you mean a trial or a confession at a 

 13   suppression hearing?

 14        Q.    If it's different, then make the distinction.

 15        A.    It's unlikely that I would be called to testify 

 16   at a suppression hearing if I had reviewed documents in a 

 17   case and I had come to the conclusion that I did not think 

 18   it was a coercive interrogation. 

 19              It's possible, though, the attorney would just 

 20   want to elicit -- either would not have had me review the 

 21   documents and just wanted to elicit general testimony or 

 22   there may be some other issue that's a little off of 

 23   coercion that he or she wants me to talk about. 

 24              With regard to trial, the issue typically has 

 25   to do with reliability and there may be statements that 

 26   were induced that were not coercive, but nevertheless, the 

 27   defense is arguing or I may have come to the conclusion 

 28   privately, likely false, and so I may be called to testify 

     Peterson & Associates Court Reporting, Inc.               65




 1   in that kind of a case at trial. 

 2              I would believe that the majority of the cases 

 3   that I testified at trial, if I reviewed the materials, 

 4   I've come to the conclusion that it's likely a false 

 5   confession or, in my opinion, it is a false confession.

 6        Q.    Do you know if Ms. Pitts was convicted?

 7        A.    I do not recall.

 8        Q.    No. 19, State of Connecticut versus LaPointe.

 9              You testified at a post-conviction, state 

 10   habeas hearing?

 11        A.    Correct.

 12        Q.    Was it your opinion that Mr. LaPointe's 

 13   confession was a coerced confession?

 14        A.    Yes.

 15        Q.    Do you recall, was your testimony beyond 

 16   general matters?

 17        A.    I think there was specific testimony in this 

 18   post-conviction state habeas hearing.

 19        Q.    Was it specific testimony that it was your 

 20   opinion that his confession was a coerced, false 

 21   confession?

 22        A.    Correct.

 23        Q.    What were the results of the post-conviction 

 24   habeas hearing?

 25        A.    I think the defense motion was denied.

 26        Q.    So Mr. LaPointe had been convicted and this 

 27   hearing did not alter that status; correct?

 28        A.    Correct.

     Peterson & Associates Court Reporting, Inc.               66




 1        Q.    No. 20, State of Kansas versus Hartis Cobb.     

 2              You testified at trial?

 3        A.    Correct.

 4        Q.    Was it your opinion Mr. Cobb had given a 

 5   coerced, false confession?

 6        A.    I believe my opinion was his confession was 

 7   likely false.  I don't recall whether I had an opinion 

 8   whether it was coerced or not.

 9        Q.    Did your testimony go beyond general matters?

 10        A.    I don't think it did.

 11        Q.    Was Mr. Cobb convicted?

 12        A.    I may be wrong about that or whether it would 

 13   be general matters. 

 14              Yes, he was convicted.

 15        Q.    State of Colorado versus Robert Edwards.

 16              You testified at trial?

 17        A.    Correct.

 18        Q.    Was it your opinion Mr. Edwards had given a 

 19   coerced, false confession?

 20        A.    I believe it was my opinion that he had given a 

 21   confession that was very likely false.  I don't recall 

 22   whether I had an opinion about whether it was coerced.

 23        Q.    Do you know if your testimony went beyond 

 24   general matters?

 25        A.    I do not recall.

 26        Q.    Was Mr. Edwards convicted?

 27        A.    He was aquitted.

 28        Q.    No. 22, State of Texas versus William 

     Peterson & Associates Court Reporting, Inc.               67




 1   Ethridge-Hill.

 2              You testified at a pretrial suppression 

 3   hearing?

 4        A.    Yes.

 5        Q.    Was it your opinion that Mr. Hill had given a 

 6   coerced, false confession?

 7        A.    A coerced confession, yes.  I don't recall 

 8   whether I formed an opinion about whether it was false.

 9        Q.    Did your testimony go beyond general matters?

 10        A.    I don't recall.

 11        Q.    Do you know what the result was of that 

 12   suppression hearing?

 13        A.    The statements were admitted.

 14        Q.    Was Mr. Hill convicted?

 15        A.    That's my understanding.

 16        Q.    No. 23, State of California versus Donald 

 17   Perry.

 18              You testified at trial?

 19        A.    Correct.

 20        Q.    Was it your opinion that Mr. Perry had given a 

 21   false, coerced confession?

 22        A.    I don't recall the facts of this case, 

 23   specifically the facts of this interrogation.

 24        Q.    Do you recall whether or not your testimony 

 25   went beyond general matters?

 26        A.    No.

 27        Q.    Was Mr. Perry convicted?

 28        A.    I believe he was.

     Peterson & Associates Court Reporting, Inc.               68




 1        Q.    No. 24, State of California versus Alan 

 2   Weatherspoon.

 3              You testified at the pretrial suppression 

 4   hearing?

 5        A.    Correct.

 6        Q.    Did you have an opinion that Mr. Weatherspoon 

 7   had given a coerced, false confession?

 8        A.    I don't recall what my opinion was in that case 

 9   specifically.

 10        Q.    Do you know what the result was of the 

 11   suppression hearing?

 12        A.    I do not.

 13        Q.    Do you know whether or not Mr. Weatherspoon was 

 14   convicted?

 15        A.    I do not.

 16        Q.    State of California versus Michael Green.

 17              You testified at trial?

 18        A.    Correct.

 19        Q.    Was it your opinion that Mr. Green had given a 

 20   coerced, false confession?

 21        A.    Yes.

 22        Q.    Did your testimony go beyond general matters?

 23        A.    I don't think so.

 24        Q.    Was Mr. Green convicted?

 25        A.    He was convicted on one count and acquitted on 

 26   the other.

 27        Q.    On the count that he was convicted of, was that 

 28   a count that included something that he had confessed to?

     Peterson & Associates Court Reporting, Inc.               69




 1        A.    Yes.

 2        Q.    26, State of California versus Luna.

 3              You testified at trial?

 4        A.    Correct.

 5        Q.    Was it your opinion that Mr. Luna had given a 

 6   coerced, false confession?

 7        A.    Yes.

 8        Q.    Was your testimony beyond general matters?

 9        A.    I don't believe so.

 10        Q.    Was he convicted?

 11        A.    Yes.

 12        Q.    No. 27, State of California versus Kevin 

 13   Boise.

 14              You testified at trial?

 15        A.    Correct.

 16        Q.    Was it your opinion that Mr. Boise had given a 

 17   coerced, false confession?

 18        A.    I don't recall.

 19        Q.    Did your testimony go beyond general matters?

 20        A.    I don't recall.

 21        Q.    Was he convicted?

 22        A.    I don't recall.

 23        Q.    United States of America versus Nigeman.

 24              You testified at trial?

 25        A.    Correct.

 26        Q.    Was it your opinion that Mr. Nigeman had given 

 27   a coerced, false confession?

 28        A.    He had given a false confession.  I don't 

     Peterson & Associates Court Reporting, Inc.               70




 1   recall if it was my opinion if it was coerced.

 2        Q.    Did your testimony go beyond general matters?

 3        A.    I don't think so.

 4        Q.    Was he convicted?

 5        A.    I think it was a hung jury.

 6        Q.    Do you know whether he was ever retried?

 7        A.    No.  I ran into a law clerk sometime after that 

 8   who I think told me that he had accepted a plea bargain to 

 9   a trivial lesser included and the case had gone away.  I 

 10   don't know whether that's accurate.

 11        Q.    No. 29, State of California versus Jerry 

 12   Davis.

 13              You testified at trial?

 14        A.    Correct.

 15        Q.    Was it your opinion that Mr. Davis had given a 

 16   coerced, false confession?

 17        A.    I think coercion is not an issue.  I think my 

 18   opinion was that he very likely had given an unreliable 

 19   statement.

 20        Q.    Did your testimony go beyond general matters?

 21        A.    I do not believe so.

 22        Q.    Was Mr. Davis convicted?

 23        A.    I believe so.

 24        Q.    No. 30, State of Texas versus Richard Lee 

 25   Franks.

 26              You testified at trial?

 27        A.    Correct.

 28        Q.    Was it your opinion that Mr. Franks had given a 

     Peterson & Associates Court Reporting, Inc.               71




 1   coerced, false confession?

 2        A.    I don't recall.

 3        Q.    Did your testimony go beyond general matters?

 4        A.    I don't believe so.

 5        Q.    Was Mr. Franks convicted?

 6        A.    Yes.

 7        Q.    Thomas Casper versus Combustion Engineering.  

 8   That was a civil case?

 9        A.    Correct.

 10        Q.    You testified at trial?

 11        A.    Correct.

 12        Q.    Did your testimony go beyond general matters?

 13        A.    I don't recall.

 14        Q.    Was it your opinion that Mr. Casper had given a 

 15   false, coerced confession?

 16        A.    Yes, he had.  It was my opinion that he had 

 17   been coerced into making false admissions by private 

 18   security personnel who had detained him, interrogated him 

 19   at the behest of his employer, Combustion Engineering.

 20        Q.    Do you recall what the result was of that civil 

 21   trial?

 22        A.    No.

 23        Q.    State of California versus Rivera.

 24              You testified at trial?

 25        A.    Correct.

 26        Q.    Was it your opinion that Mr. Rivera had given a 

 27   coerced, false confession?

 28        A.    I don't recall.

     Peterson & Associates Court Reporting, Inc.               72




 1        Q.    Did your testimony go beyond general matters?

 2        A.    I don't recall.

 3        Q.    Do you know whether or not he was convicted?

 4        A.    I don't recall.

 5        Q.    No. 33, Beverly Monroe versus State of 

 6   Virginia.

 7              You testified at a post-conviction habeas 

 8   hearing?

 9        A.    Correct.

 10        Q.    That's when you provide more detail in your 

 11   list.  It says you testified about police interrogation 

 12   training and practices, coercive persuasion and 

 13   volunteeringness and false confessions.  That would be 

 14   what we termed general testimony?

 15        A.    Correct.

 16        Q.    Do you know if it went beyond that?

 17        A.    I don't recall.

 18        Q.    Was it your opinion that Beverly Monroe had 

 19   given a coerced, false confession?

 20        A.    Yes.

 21        Q.    I take it that Ms. Monroe had originally been 

 22   convicted; correct?

 23        A.    Yes.

 24        Q.    As a result of the habeas hearing, was her 

 25   convicted status changed in any way?

 26        A.    Yes.  She was released.  Her conviction was 

 27   overturned.

 28        Q.    Do you know if that result of her conviction 

     Peterson & Associates Court Reporting, Inc.               73




 1   being overturned in any way hinged upon a finding that her 

 2   conviction had been coerced or false?

 3        A.    No.

 4        Q.    Do you know if that resulted in a published 

 5   court appellate opinion?

 6        A.    No, I do not know.

 7        Q.    State of California versus Wyatt.

 8              You testified at a pretrial suppression 

 9   hearing?

 10        A.    Correct.

 11        Q.    Was it your opinion that Mr. Wyatt had given a 

 12   coerced, false confession?

 13        A.    I don't recall.  I don't think I was asked to 

 14   opine about the issue of a true or false confession.  I 

 15   don't recall my specific opinion in the case.

 16        Q.    Did your testimony go beyond general matters?

 17        A.    I don't recall.

 18        Q.    Do you recall what the result was of the 

 19   suppression hearing?

 20        A.    His statements were admitted.

 21        Q.    Was Mr. Wyatt convicted?

 22        A.    Yes.

 23        Q.    State of California versus Marcos Ron Hill.

 24        A.    Correct.

 25        Q.    You testified in a pretrial suppression 

 26   hearing?

 27        A.    Correct.

 28        Q.    Was it your opinion that Mr. Ron Hill had 

     Peterson & Associates Court Reporting, Inc.               74




 1   given a coerced, false confession?

 2        A.    I don't believe I was asked to form an opinion 

 3   whether it was true or false.  I don't recall my opinion 

 4   about whether it was coerced.

 5        Q.    Did your testimony go beyond general matters?

 6        A.    I don't recall.

 7        Q.    What was the result of the suppression hearing?

 8        A.    I believe the statements were admitted.

 9        Q.    Was Mr. Ron Hill convicted?

 10        A.    Yes.

 11        Q.    State of California versus Verduzco.

 12              You testified at trial?

 13        A.    Correct.

 14        Q.    Was it your opinion that Mr. Verduzco had given 

 15   a coerced, false confession?

 16        A.    I don't know.

 17        Q.    Did your testimony go beyond general matters?

 18        A.    I don't believe so.

 19        Q.    Was Mr. Verduzco convicted?

 20        A.    I don't know.

 21        Q.    State of Washington versus Beasley.

 22              You testified at a pretrial suppression 

 23   hearing?

 24        A.    Correct.

 25        Q.    Was it your opinion that Mr. Beasley had given 

 26   a coerced, false confession?

 27        A.    A coerced confession, yes.  I don't recall 

 28   whether I formed an opinion about whether it was a false 

     Peterson & Associates Court Reporting, Inc.               75




 1   confession.

 2        Q.    Did your testimony go beyond general matters?

 3        A.    I don't believe so.

 4        Q.    What was the result of the suppression hearing?

 5        A.    I believe the statements were admitted.

 6        Q.    Was Mr. Beasley convicted?

 7        A.    I think he took a plea bargain at some point.  

 8   I may be wrong.  It may have been a hung jury.  I'm not 

 9   100 percent sure.  I think it was a hung jury and then he 

 10   subsequently took a plea to a reduced, lesser included, 

 11   but I'm not 100 percent sure.

 12        Q.    Do you have records somewhere that you could 

 13   look at to refresh your recollection on these questions 

 14   I'm asking you about about these various cases?

 15        A.    I should have records, yes.  I can't promise 

 16   that I've got records in every case, but I should have 

 17   records to refresh my recollection, if necessary.

 18        Q.    Do you normally somewhere in the file when you 

 19   work on a case, after you hear about the results, make a 

 20   note of what you heard?

 21        A.    Usually, yes, if I hear about the results or in 

 22   some cases, if I read about the results in a newspaper

 23   clipping, yes.  Some cases, I never find out.  The 

 24   attorney doesn't call me or doesn't return my phone calls.

 25              MR. WAGGONER:  I'll ask now, Counsel, you don't 

 26   have to answer on the record, think about it and talk with 

 27   your other lawyers.  I expect you might want to. 

 28              If after the deposition is over, when the 

     Peterson & Associates Court Reporting, Inc.               76




 1   witness is reading the transcript, if he could go back and 

 2   check his records and on these occasions where he has 

 3   answered he doesn't recall, indicate whether or not his 

 4   records give him the answer and, if so, what the answer 

 5   is. 

 6              MR. ARNELL:  That may be very time consuming.  

 7   I don't know what the state of the records are.  We'll 

 8   have to talk about it and we'll get back to you.

 9   BY MR. WAGGONER:

 10        Q.    No. 38 has the same title as 37.  Is that just 

 11   a repeat of the same thing?

 12        A.    Yes.  The only difference is that I testified 

 13   at trial in 38 and pretrial in 37, so it's two separate 

 14   appearances at two stages.

 15        Q.    Your testimony at trial, was that on general 

 16   matters?

 17        A.    That's my recollection, yes.

 18        Q.    No. 39, State of California versus Wyatt.

 19              You testified at trial?

 20        A.    Correct.

 21        Q.    Was it your opinion that Mr. Wyatt had given a 

 22   coerced, false confession?

 23        A.    This is the same as my answer to 34.  It's the 

 24   same situation where in No. 34, I testified at the 

 25   pretrial suppression hearing, and No. 39, I testified at 

 26   the trial.

 27        Q.    Do you recall whether your testimony at trial 

 28   went beyond general matters?

     Peterson & Associates Court Reporting, Inc.               77




 1        A.    I do not recall.

 2        Q.    No. 40, State of California versus Bronfield.   

 3              You testified at trial?

 4        A.    Correct.

 5        Q.    Was it your opinion that Mr. Bronfield had 

 6   given a coerced, false confession?

 7        A.    Yes.

 8        Q.    Did your testimony go beyond general matters?

 9        A.    I do not believe so.

 10        Q.    Was Mr. Bronfield convicted?

 11        A.    I think it was a hung jury and I never found 

 12   out what occurred, whether the prosecution dismissed 

 13   charges or he was retried.  I never found out.

 14        Q.    No. 41, State of California versus Escobido.

 15              You testified at a pretrial suppression 

 16   hearing?

 17        A.    Correct.

 18        Q.    Was it your opinion Mr. Escobido had given a 

 19   coerced, false confession?

 20        A.    Coerced confession.

 21        Q.    Did your testimony go beyond general matters at 

 22   this suppression hearing?

 23        A.    My recollection is it did not.

 24        Q.    Do you know what the result was of the 

 25   suppression hearing?

 26        A.    I believe the statements were admitted.

 27        Q.    Was Mr. Escobido convicted?

 28        A.    I'm sorry.  You're asking me about Escobido?

     Peterson & Associates Court Reporting, Inc.               78




 1        Q.    I'm still on No. 41.

 2        A.    I apologize.  I'm answering the wrong 

 3   question.

 4              I have no recollection of Escobido at all, what 

 5   my opinion was and what happened in the case.  I 

 6   inadvertently was looking at 42, which I do have a 

 7   recollection of.

 8        Q.    On No. 42, State of California versus Spawn.    

 9              Your opinion was that it was a coerced 

 10   confession?

 11        A.    Correct.

 12        Q.    Your testimony did not go beyond general 

 13   matters?

 14        A.    Correct.

 15        Q.    The statement was admitted?

 16        A.    Correct.  It's since been overturned.

 17        Q.    After the statement was admitted, was Mr. Spawn 

 18   convicted?

 19        A.    Yes.

 20        Q.    Then you say that's since been overturned?

 21        A.    Correct.

 22        Q.    Did it result in a published opinion?

 23        A.    I do not know whether the opinion was 

 24   published.  I believe it was.

 25        Q.    Do you know what the ground was of the 

 26   overturning?

 27        A.    No, I don't recall specifically.

 28        Q.    Did the court make a finding that the 

     Peterson & Associates Court Reporting, Inc.               79




 1   confession of Mr. Spawn was improperly admitted?

 2        A.    I'm not sure.  I don't recall.

 3        Q.    Do you recall whether or not the appellate 

 4   court made a finding as to whether or not Mr. Spawn's 

 5   confession was coerced?

 6        A.    I don't recall.

 7        Q.    43, State of California versus Gonzales.

 8              You testified at a pretrial suppression 

 9   hearing?

 10        A.    Correct.

 11        Q.    Was that a male or female?

 12        A.    Male.

 13        Q.    Was it your opinion that Mr. Gonzales had given 

 14   a coerced, false confession?

 15        A.    I believe a coerced confession.

 16        Q.    Did your testimony go beyond general matters?

 17        A.    I do not believe so.

 18        Q.    What was the result of the suppression hearing?

 19        A.    The statements were admitted.

 20        Q.    Was Mr. Gonzales convicted?

 21        A.    Yes, he was.

 22        Q.    No. 44, that's the same case as No. 42; 

 23   correct?

 24        A.    Correct.

 25        Q.    This is testimony at trial?

 26        A.    Correct.

 27        Q.    Did your testimony at trial go beyond general 

 28   matters?

     Peterson & Associates Court Reporting, Inc.               80




 1        A.    No.

 2        Q.    No. 45, State of California versus John Ruiz.   

 3              You testified at a suppression hearing?

 4        A.    Correct.

 5        Q.    Was it your opinion that Mr. Ruiz had given a 

 6   coerced, false confession?

 7        A.    Coerced confession.  The issue of whether it 

 8   was a false confession was not raised.

 9        Q.    Did your testimony go beyond general matters?

 10        A.    I believe it did.

 11        Q.    Were you permitted to actually testify, in your 

 12   opinion, he had given a coerced confession?

 13        A.    I believe I was, yes.

 14        Q.    What was the result of the suppression hearing?

 15        A.    The statement was suppressed.

 16        Q.    Was Mr. Ruiz convicted?

 17        A.    Yes, I believe he was.

 18        Q.    Was he convicted of the crime that he had 

 19   confessed to?

 20        A.    Yes, or some version of it.

 21        Q.    State of California versus --

 22        A.    That's No. 46 and that's the same as No. 43, 

 23   same case only testifying at a different stage in the 

 24   process.

 25        Q.    Was your testimony at trial beyond general 

 26   matters?

 27        A.    No.  It was just general testimony.

 28        Q.    47, State of South Carolina versus Dillard. 

     Peterson & Associates Court Reporting, Inc.               81




 1              You testified in a deposition?

 2        A.    It was by videotape deposition because of 

 3   scheduling problems.  I was in a room like this.  The only 

 4   difference is there were TVs and I conferenced in so the 

 5   prosecutor and defense attorney were in a room in the 

 6   court reporter's office and they were taking live 

 7   testimony transcribed and that live testimony was then 

 8   played to the jury.

 9        Q.    So, although being accomplished by videotape, 

 10   you were testifying at trial?

 11        A.    Correct.

 12        Q.    Was it your opinion that Ms. Dillard had given 

 13   a coerced, false confession?

 14        A.    I don't recall.  I believe this was just 

 15   general testimony.

 16        Q.    Do you know whether Ms. Dillard was convicted?

 17        A.    I believe she was.

 18        Q.    No. 48, United States versus Taylor.

 19              You testified at trial?

 20        A.    Correct.

 21              MR. LOEDING:  Can the record reflect

 22   Mr. Christopher Taylor left the deposition.

 23              (Discussion off the record.)

 24   BY MR. WAGGONER:

 25        Q.    No. 48, did you reach an opinion that

 26   Mr. Taylor gave a coerced, false confession?

 27        A.    Yes.

 28        Q.    Was your testimony beyond general matters?

     Peterson & Associates Court Reporting, Inc.               82




 1        A.    I don't recall.

 2        Q.    Was Mr. Taylor convicted?

 3        A.    He was aquitted.

 4        Q.    No. 49, State of California versus Kagle?

 5              You testified at trial?

 6        A.    Correct.

 7        Q.    Was it your opinion Mr. Kagle had given a 

 8   coerced, false confession?

 9        A.    It may have been confessions or admission.  I'm 

 10   not.

 11        Q.    Did your testimony go beyond general matters?

 12        A.    No.

 13        Q.    Was Mr. Kagle convicted?

 14        A.    Yes.

 15        Q.    No. 50, State of California versus Reynolds.    

 16              You testified at trial?

 17        A.    Correct.

 18        Q.    Was it your opinion that Mr. or Ms. Reynolds 

 19   had given a coerced, false confession?

 20        A.    It was Mr. Reynolds, and I don't recall my 

 21   opinion.  He was aquitted.

 22        Q.    Did your testimony go beyond general matters?

 23        A.    No, it did not.

 24        Q.    State of California versus Hernandez.

 25              You testified at trial?

 26        A.    Correct.

 27        Q.    Was it your opinion that Mr. Hernandez had 

 28   given a coerced, false confession?

     Peterson & Associates Court Reporting, Inc.               83




 1        A.    I don't recall.

 2        Q.    Did your testimony go beyond general matters?

 3        A.    I don't believe so.

 4        Q.    Was Mr. Hernandez convicted?

 5        A.    I don't recall.

 6        Q.    No. 52, State of Pennsylvania versus 

 7   Cornelius.

 8              You testified at trial?

 9        A.    Correct.

 10        Q.    Was it your opinion that Mr. Cornelius had 

 11   given a coerced, false confession?

 12        A.    I think it was my opinion he had given a 

 13   coerced confession.  I didn't have an opinion about 

 14   whether it was false.

 15        Q.    Did your testimony go beyond general matters?

 16        A.    No.

 17        Q.    Was Mr. Cornelius convicted?

 18        A.    Yes.

 19        Q.    No. 53, State of California versus Sergio 

 20   Torres.

 21              You testified at trial?

 22        A.    Correct.

 23        Q.    Was it your opinion that Mr. Torres gave a 

 24   coerced, false confession?

 25        A.    I don't recall this case.  I don't recall what 

 26   my opinion was or what the outcome was or whether I 

 27   testified beyond general or specific matters.

 28        Q.    State of California versus Rivera.

     Peterson & Associates Court Reporting, Inc.               84




 1              You testified at trial?

 2        A.    Correct.  Again, I don't recall anything about 

 3   this particular case, whether I formed an opinion about 

 4   any of the questions you asked me about or what I 

 5   specifically testified to.

 6        Q.    Or the result?

 7        A.    Or the result.  I don't think I was ever 

 8   informed.

 9        Q.    No. 55, State of California versus Franklin 

 10   Sole.

 11        A.    Correct.

 12        Q.    You testified at a suppression hearing?

 13        A.    Correct.

 14        Q.    Was it your opinion that Mr. Sole gave a 

 15   coerced, false confession?

 16        A.    Yes.

 17        Q.    Did your testimony go beyond general matters?

 18        A.    I believe it did at the suppression hearing.

 19        Q.    Were you specifically allowed to testify that, 

 20   in your opinion, Mr. Sole had given a coerced, false 

 21   confession?

 22        A.    I believe I was permitted to discuss the basis 

 23   for my opinion that it was a coerced confession at the 

 24   suppression hearing.

 25        Q.    What was the result of the suppression hearing?

 26        A.    The statements were admitted.

 27        Q.    Was Mr. Sole convicted?

 28        A.    Yes.

     Peterson & Associates Court Reporting, Inc.               85




 1        Q.    No. 56 is the same case; correct?

 2        A.    Correct.

 3        Q.    You testified at trial?

 4        A.    Correct.

 5        Q.    Did your testimony there go beyond general 

 6   matters?

 7        A.    No.  It was just general testimony.

 8        Q.    State of Washington versus Norma Holstrom,

 9   No. 57.

 10              You testified at a bench trial?

 11        A.    Correct.

 12        Q.    Was it your opinion that Ms. Holstrom had given 

 13   a coerced, false confession?

 14        A.    Yes.

 15        Q.    Did your testimony go beyond general matters?

 16        A.    I don't recall.

 17        Q.    Was Ms. Holstrom convicted?

 18        A.    No.  She was aquitted.

 19        Q.    State of California versus Ernest Boone.

 20              You testified at trial?

 21        A.    Correct.

 22        Q.    Was it your opinion that Mr. Boone had given a 

 23   coerced, false confession?

 24        A.    I don't recall.

 25        Q.    Did your testimony go beyond general matters?

 26        A.    No