1 1 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 2 IN AND FOR THE COUNTY OF MENDOCINO 3 4 HONORABLE HENRY K. NELSON COURTROOM H 5 PEOPLE OF THE STATE OF CALIFORNIA, 6 PLAINTIFF, 7 VS 8 JOHANN S. SCHMIDT, 9 DEFENDANT. 10 __________________________________/ NO. SCUKCRCR-01-44321 11 12 13 PROCEEDINGS 14 15 HELD AT THE MENDOCINO COUNTY COURTHOUSE, UKIAH, 16 CALIFORNIA, ON THURSDAY, AUGUST 1, 2002. 17 18 19 APPEARANCES OF COUNSEL 20 FOR THE PLAINTIFF: KEITH FAULDER 21 DEPUTY DISTRICT ATTORNEY MENDOCINO COUNTY COURTHOUSE 22 UKIAH, CALIFORNIA 95482 23 FOR THE DEFENDANT: RICHARD PETERSEN 24 JUSTIN PETERSEN ATTORNEYS AT LAW 25 308 SOUTH SCHOOL STREET UKIAH, CALIFORNIA 95482 26 27 28 2 1 I N D E X 2 3 WITNESS: PAGE 4 LEO, RICHARD DIRECT BY MR. J. PETERSEN 5 5 CROSS BY MR. FAULDER 74 REDIRECT BY MR. J. PETERSEN 139 6 7 - - - 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 1 THURSDAY, AUGUST 1, 2002 UKIAH, CALIFORNIA 2 - - - 3 THE COURT: WE'RE ON THE RECORD IN PEOPLE VERSUS 4 SCHMIDT. MR. SCHMIDT IS PRESENT. HIS COUNSEL, MR. JUSTIN 5 PETERSEN AND RICHARD PETERSEN ARE PRESENT. MR. FAULDER'S 6 PRESENT FOR THE PEOPLE. 7 MR. FAULDER: GOOD MORNING, YOUR HONOR. 8 MR. J. PETERSEN: GOOD MORNING. 9 THE COURT: I CALLED MR. PETERSEN INTO CHAMBERS 10 REGARDING AN EX PARTE REQUEST FOR MONEY THAT I HAD SOME 11 QUESTIONS ABOUT. 12 MR. FAULDER: YOUR HONOR, I WAS POKING BEHIND THE 13 SCENES AND FOUND THAT OUT, JUST THE CURIOSITY GOT TO ME. 14 THE COURT: ALL RIGHT. I CAN UNDERSTAND. 15 ALL RIGHT. THIS MATTER COMES ON FOR THE DEFENSE 16 MOTION TO SUPPRESS THE DEFENDANT'S CONFESSION HEARING 17 THEREON. ARE BOTH SIDES READY? 18 MR. FAULDER: PEOPLE ARE READY, YOUR HONOR. 19 MR. J. PETERSEN: YES. 20 THE COURT: CALL YOUR WITNESS. 21 ALSO, THE RECORD SHOULD REFLECT YESTERDAY I DID 22 REVIEW THE TAPED ALLEGED CONFESSION AND FOLLOWED THE 23 TRANSCRIPT. 24 MR. J. PETERSEN: THEN WHAT WE'LL DO IS I WILL 25 CALL OUR EXPERT WITNESS DR. RICHARD LEO TO THE STAND. 26 THE COURT: SIR, STEP FORWARD PLEASE. RAISE YOUR 27 HAND RIGHT AND BE SWORN: 28 - - - 4 1 RICHARD LEO, 2 HAVING BEEN FIRST DULY SWORN, TESTIFIED AS FOLLOWS: 3 - - - 4 THE CLERK: THANK YOU. PLEASE BE SEATED. 5 STATE YOUR FULL NAME SPELLING YOUR LAST NAME FOR 6 THE RECORD. 7 THE WITNESS: RICHARD ANGELO LEO, L-E-O. 8 THE COURT: DIRECT. 9 MR. FAULDER: YOUR HONOR, BEFORE DIRECT BEGINS, 10 COULD WE HAVE THE RECORD REFLECT THAT THE TWO VIDEOTAPES 11 THAT WERE PRESENTED TO THE COURT HAVE BEEN MARKED? 12 THEY'VE BEEN MARKED EXHIBIT 1 AND EXHIBIT 2. I DON'T 13 THINK THAT WAS DONE ON THE RECORD. I DID TALK TO RICHARD 14 PETERSEN, SHOWED HIM THE TAPE AND TOLD HIM I WOULD BE 15 THEM BRINGING TO THE COURT; BUT THEY WERE MARKED AND I'D 16 ASK THEY BE INTRODUCED. 17 THE COURT: AS EVIDENCE? 18 MR. FAULDER: YES. 19 THE COURT: ANY OBJECTION? 20 MR. J. PETERSEN: NO, YOUR HONOR, SO LONG AS THAT 21 WAS REVIEWED WITH RICHARD PETERSEN, I THINK THAT'S FINE. 22 THE COURT: THEY'LL BE RECEIVED. 23 MR. FAULDER: THANK YOU, YOUR HONOR. 24 (EXHIBITS 1 AND 2 WERE RECEIVED IN 25 EVIDENCE.) 26 THE COURT: WE SHOULD ALSO MARK THE TRANSCRIPT 27 COURT EXHIBIT A. 28 MR. FAULDER: PLEASE, YOUR HONOR. THANK YOU. I 5 1 CAN MAKE ANOTHER COPY OF THE TRANSCRIPT. THE TRANSCRIPT I 2 PROVIDED TO THE COURT WAS ATTACHED TO THE PEOPLE'S 3 RESPONSE TO DEFENDANT'S MOTION IN LIMINE. 4 THE COURT: YES, IF YOU WILL PLEASE. 5 MR. FAULDER: I'LL DO THAT, YOUR HONOR. 6 (COURT EXHIBIT A WAS MARKED FOR 7 IDENTIFICATION.) 8 THE COURT: DIRECT? 9 MR. J. PETERSEN: DOES THE COURT HAVE ITS COPY OR 10 A COPY OF THE TRANSCRIPT BEFORE YOU THOUGH? YOU MIGHT 11 FIND THAT USEFUL. 12 THE COURT: YES, I DO. 13 MR. J. PETERSEN: OKAY. WHAT I'D LIKE TO DO 14 INITIALLY IS GO AHEAD AND HAVE THE C.V. MARKED, IF I MAY. 15 THE CLERK: MARKED AND IDENTIFIED AS A. 16 THE COURT: ALL RIGHT. DEFENSE A. 17 (EXHIBIT A WAS MARKED FOR 18 IDENTIFICATION.) 19 MR. J. PETERSEN: MAY I APPROACH? 20 THE COURT: YES. 21 DIRECT EXAMINATION 22 Q (BY MR. J. PETERSEN) DR. LEO, WHAT I'D LIKE TO 23 DO IS APPROACH AND PROVIDE A DOCUMENT AND SEE IF YOU 24 RECOGNIZE IT. 25 A YES. THIS IS MY CURRICULUM VITAE TO MARCH OF 26 2002. 27 Q AND AS WE GO ALONG, WHAT I'D LIKE YOU TO DO IS 28 TELL ME WHAT PAGE OF THE C.V. WE'RE TALKING ABOUT. THAT 6 1 WILL MAKE IT A LITTLE CLEARER FOR THE RECORD. 2 LET'S START WITH YOUR EDUCATIONAL BACKGROUND. DO 3 YOU HAVE A B.A. IN SOMETHING? 4 A YEAH, I HAVE A B.A. IN SOCIOLOGY FOR U.C. 5 BERKELEY AND THIS IS ON PAGE TWO OF THE C.V. I RECEIVED 6 THAT IN 1985. 7 Q DID YOU GO ON WITH YOUR SCHOOLING FROM THERE? 8 A I DID. I RECEIVED A MASTER'S IN SOCIOLOGY FROM 9 THE UNIVERSITY OF CHICAGO IN 1989, AND BOTH J.D. AND PH.D 10 IN 1994 FROM U.C. BERKELEY. 11 Q AND THE DUAL DEGREES YOU GOT FROM U.C. BERKELEY, 12 WAS THAT PART OF SOME SPECIALIZED PROGRAM? 13 A IT WAS. IT WAS FROM THE JURISPRUDENCE IN SOCIAL 14 POLICY AT BOALT HALL WHICH IS SPECIALIZED LAW AND SOCIAL 15 SCIENCE PROGRAM, SO DIFFERENT SOCIAL SCIENCE DISCIPLINES, 16 ECONOMICS, POLITICAL SCIENCE, HISTORY, SOCIOLOGY, 17 PSYCHOLOGY, CRIMINOLOGY, ALL STUDY THE LEGAL FIELD FROM 18 THEIR VANTAGE POINT. SO STUDENTS GRADUATE AND CAN GET 19 TRACKED INTO ONE OR MORE OF THOSE SOCIAL SCIENCES AND 20 STUDY. IN MY CASE I SPECIALIZED IN SOCIOLOGY AND SOCIAL 21 PSYCHOLOGY AND CRIMINAL AND AS IT APPLIED TO THE CRIMINAL 22 SYSTEM TO POLICE WORK. 23 Q YOU DO A DISSERTATION AS PART YOUR POLICE WORK TO 24 GET YOUR PH.D IN BERKELEY? 25 A YES. PH.D IS REQUIRED FOR ALL DISSERTATION. THE 26 DISSERTATION IS REQUIRED FOR ALL PH.D AS ADVANCED RESEARCH 27 PROGRAMS. I WROTE MY RESEARCH AND WROTE IT ON THE SUBJECT 28 OF POLICE INTERROGATION AND CONFESSIONS FROM A KIND OF 7 1 HISTORICAL AS WELL AS CONTEMPORARY STANDPOINT, FOCUSING ON 2 THE PSYCHOLOGY AND THE LAW POLICY ISSUES AND THE STUDY OF 3 POLICE INTERROGATIONS. 4 Q YOU DO FIELD AND RESEARCH AS PART OF THAT 5 DISSERTATION? 6 A YES. DISSERTATION THAT'S TO BE BASED ON ORIGINAL 7 RESEARCH AND PRIMARILY, BUT NOT ONLY MY RESEARCH INVOLVED 8 SITTING IN AND OBSERVING 122 INTERROGATIONS IN THE OAKLAND 9 POLICE DEPARTMENT IN OAKLAND, CALIFORNIA, IN THE BAY AREA 10 FROM 1992 TO 1993. IN ADDITION TO OBSERVING THOSE 122 11 INTERROGATIONS, I WAS ALSO ALLOWED TO OBSERVE VIDEOTAPES 12 OF TWO OTHER POLICE DEPARTMENTS IN THE BAY AREA, HAYWARD 13 AND VALLEJO. THEY GAVE ME THEIR TAPES THAT THEY HAD 14 FOR -- TOGETHER WOULD BE 60 CASES, SO I OBSERVED EITHER IN 15 PERSON OR BY VIDEOTAPE THOSE THREE DEPARTMENTS 182 16 INTERROGATIONS. AND THAT WAS THE FIELD RESEARCH -- PART 17 OF THE FIELD RESEARCH. I DID OTHER RESEARCH AS WELL. 18 Q DID YOU ALSO ATTEND SOME POLICE INTERROGATION 19 TRAINING COURSE? 20 A YES. I ATTENDED A NUMBER OF POLICE INTERROGATION 21 TRAINING COURSES. THE FIRST WAS IN-HOUSE INTERROGATION 22 TRAINING COURSE PUT ON BY THE OAKLAND POLICE DEPARTMENT. 23 FROM THERE I ATTENDED AND PARTICIPATED TWO- AND THREE-DAY 24 INTERROGATION COURSES, ONE INTRODUCTORY, ONE ADVANCED, PUT 25 ON BY REID AND ASSOCIATES, R-E-I-D, NATIONAL TRAINING 26 FIRM. 27 AND THEN AFTER THAT, I TOOK A WEEK-LONG COURSE AT 28 THE SAN MATEO COMMUNITY COLLEGE, ADMINISTRATION OF JUSTICE 8 1 DEPARTMENT. THE LAST ONE I ATTENDED BY INVITATION WAS 2 FEDERAL LAW ENFORCEMENT TRAINING CENTER IN GLYNCO, 3 G-L-Y-N-C-O, GEORGIA. IT WAS ADVANCED INTERROGATION 4 COURSE. AND THAT'S WHERE ALL FEDERAL AGENTS WITH THE 5 EXCEPTION OF THE FBI RECEIVED TRAINING. 6 Q AND DID YOU PARTICIPATE IN THOSE TRAINING 7 CLASSES JUST AS ANY OTHER PARTICIPANT DID? 8 A I DID. I BELIEVE THAT I WAS THE ONLY CIVILIAN. 9 MANY OF THE COURSES HAD PRIVATE LAW ENFORCEMENT OR POSTAL 10 INSPECTION OR FEDERAL LAW ENFORCEMENT THAT DON'T WEAR 11 UNIFORMS. I PARTICIPATED AS IF I WERE ONE OF THEM. I DID 12 THE ROLE-PLAYING EXERCISES. I TOOK EXAMINATIONS. I 13 RECEIVED A CERTIFICATE. IT WAS JUST AS IF I WAS ONE OF 14 EVERYBODY ELSE. 15 Q AND YOU MENTIONED THE REID AND ASSOCIATES CLASS. 16 IS THAT BASED ON A PUBLICATION BY TWO INDIVIDUALS NAMED 17 REID AND BINBAU? 18 A THIS PUBLICATION GOING TO 1992, IT WAS ONE OF 19 THE FIRST INTERROGATION TRAINING MANUALS IN THE COUNTRY. 20 IT'S CALLED CRIMINAL INTERROGATION AND CONFESSIONS. IT'S 21 NOW IN ITS FOURTH EDITION, 2001. THIS IS THE BIBLE OF ALL 22 INTERROGATION TRAINING IN THE UNITED STATES. THAT IS THE 23 STANDARD REFERENCE MANUAL IN AMERICAN POLICING FOR 24 INTERVIEWING AND INTERROGATION OF CRIMINAL SUSPECTS. 25 Q AND IS THAT BINBAU AND REID VOLUME THE BASIS OF 26 ALL THESE POLICE TRAINING COURSES? 27 A IT IS THE BASIS OF THE POLICE TRAINING COURSES. 28 THEY HAVE, OF COURSE, THEIR OWN UNIQUE PRODUCTS AND 9 1 MANUALS OTHER THAN THE REID METHOD; BUT ALL THE TRAINING 2 THAT I'VE SEEN, ALL THE MANUALS THAT ARE PUBLISHED IN THE 3 UNITED STATES EITHER DRAW ON OR REFERENCE OR QUITE FRANKLY 4 PLAGIARIZE WHAT'S IN THE REID MANUAL. SO WHEN I SAY 5 THEY'RE THE BIBLE, THEY REALLY DEFINE THE LANDSCAPE. AND 6 OTHERS WHO COME ALONG AFTER THAT TAKE FROM THAT METHOD, 7 SOMETIMES QUITE LIBERALLY. 8 Q ASIDE FROM THE CLASSES THAT YOU TOOK AND THE 9 INTERROGATIONS THAT YOU VIEWED, DID YOU TALK TO ANYONE 10 ELSE IN DOING YOUR FIELD RESEARCH? 11 A WELL, I INTERVIEWED PROSECUTORS AND DEFENSE 12 ATTORNEYS AND POLICE INTERROGATORS AND POLICE 13 INTERROGATION TRAINERS, POLICE MANAGERS, CAPTAINS, CHIEFS, 14 LIEUTENANTS. IT'S A -- PART OF THE STUDY WAS BASED ON 15 INTERVIEWS. 16 Q LET'S TALK FOR A MOMENT ABOUT PUBLICATIONS. 17 HAVE YOU BEEN PUBLISHED IN THE AREA OF POLICE 18 INTERROGATION AND COERCION? 19 A YES. I PUBLISHED A NUMBER OF PRIMARILY JOURNAL 20 ARTICLES ON THE SUBJECT OF POLICE INTERROGATION AND 21 COERCION AND CONFESSIONS. 22 Q AND WHEN YOU SAY JOURNAL ARTICLES, IS THAT A 23 CERTAIN TYPE OF ARTICLE? 24 A WELL, AS A PROFESSIONAL, MY PRIMARY 25 RESPONSIBILITY, SINCE I'M EMPLOYED BY RESEARCH 26 INSTITUTION, IS TO PUBLISH IN PEER REVIEW OR LEADING 27 ACADEMIC JOURNALS. SO I WAS REFERRING TO PUBLISHING IN 28 ACADEMIC JOURNALS, SPECIALTY JOURNALS THAT ARE PRIMARILY 10 1 WRITTEN BY RESEARCHERS, LIKE ACADEMICS FOR RESEARCH 2 AUDIENCES. 3 Q ARE THESE PUBLICATIONS SUBJECT TO A TYPE OF PEER 4 REVIEW? 5 A FOR THE MOST PART, YES. PEER REVIEW IS THE 6 QUALITY CONTROL PROCESS WHEREBY THE WORK THAT YOU WRITE UP 7 AND SUBMIT GETS VETTED BEFORE IT GETS PUBLISHED. SO IN 8 TYPICAL PEER REVIEW PROCESS, I WOULD SUBMIT THREE OR FOUR 9 COPIES OF AN ARTICLE. THE EDITOR WOULD EITHER REQUEST OR 10 TAKE OFF THE FACE SHEET. HE OR SHE WOULD THEN IDENTIFY 11 THREE OR FOUR EXPERTS IN THAT AREA OF ACADEMIC STUDY, SEND 12 THEM THE ARTICLES, WRITE THEM A LETTER ASKING THEM TO 13 EVALUATE ON A NUMBER OF DIMENSIONS. THEY WRITE BACK 14 COMMENTS. THE EDITOR, BASED ON REVIEW OF THOSE COMMENTS 15 AND HIS OR HER INDEPENDENT READING OF THE ARTICLE, WILL 16 EITHER ACCEPT IT, REJECT IT, ACCEPT IT CONDITIONALLY 17 SUBJECT TO REVISION AND RESUBMIT. EVENTUALLY THE ARTICLE 18 EITHER GETS ACCEPTED OR REJECTION MAY GET SENT AND GO 19 THROUGH SEVERAL MODIFICATIONS. AND THAT'S WHAT IS MEANT 20 BY THE PEER REVIEW PROCESS. 21 Q AS WELL -- HOW MANY PUBLICATIONS, IF YOU CAN 22 GIVE ME AN ESTIMATE, HAVE YOU AUTHORED WITH RESPECT TO 23 POLICE INTERROGATION PRACTICES? 24 A I'M LOOKING AT PAGES TWO TO FIVE OF THE C.V. AND 25 I WOULD SAY SOMEWHERE BETWEEN 15 AND 30 TOTAL. SOME OF MY 26 PUBLICATIONS ARE NOT DIRECTLY ABOUT POLICE INTERROGATION. 27 THEY'RE MORE BROAD, MAYBE ABOUT THE INSTITUTION OF 28 POLICING OR SOME BROADER ASPECT OF CRIMINAL STUDIES; BUT 11 1 THE VAST MAJORITY ARE INTERROGATION OR CONFESSION. 2 Q HAVE YOU WRITTEN BOOKS AS WELL? 3 A I HAVE PUBLISHED ONE BOOK AND I'M UNDER CONTRACT 4 AND TRYING TO COMPLETE A SECOND BOOK. 5 Q AND DO EITHER OF THESE BOOKS RELATE TO 6 INTERROGATION PRACTICES? 7 A YES. THE FIRST BOOK ON PAGE TWO OF THE C.V. THAT 8 I HAVE IN FRONT OF ME "THE MIRANDA DEBATE: LAW, JUSTICE 9 AND POLICING" IS PRIMARILY ABOUT MIRANDA, BUT ALSO 10 ARTICLES, OR CHAPTERS RATHER IN THERE ABOUT VARIOUS 11 ASPECTS OF POLICE INTERROGATION. 12 THE OTHER ONE THAT I'M CURRENTLY WORKING ON 13 TENTATIVELY ENTITLED "INSIDE THE INTERROGATION ROOM" IS 14 ABOUT THE PRACTICE OF INTERROGATION, THE METHODS, THE 15 PSYCHOLOGY OF INTERROGATION, THE CULTURE OF POLICING IN 16 MODERN AMERICA AND HOW THAT GIVES US A BETTER 17 UNDERSTANDING OF POLICE INTERROGATION PRACTICES AND 18 POLICIES. 19 Q ASIDE FROM BOOKS TO BE PUBLISHED OR AUTHORED BY 20 YOU, HAVE YOU WRITTEN CHAPTERS ON THE SUBJECTS OF POLICE 21 INTERROGATION PRACTICES AND COERCION? 22 A YES. FROM TIME TO TIME, I'D BE INVITED TO WRITE 23 A CHAPTER FOR AN ACADEMIC BOOK. BOOKS TYPICALLY GO 24 THROUGH PEER REVIEW PROCESS BEFORE THE CONTRACT IS 25 SIGNED. THE EDITOR WOULD CONTACT ME. I'VE WRITTEN 26 ABOUT -- LOOKS LIKE FIVE ON THE BOTTOM OF PAGE FOUR OF THE 27 C.V. 28 Q AND HOW ABOUT SHORT PUBLICATIONS -- FIRST OF ALL, 12 1 WHAT IS A SHORT PUBLICATION? 2 A SINCE MOST OF THE PUBLICATIONS THAT I DO ARE 3 ACADEMIC PUBLICATIONS, JOURNAL PUBLICATIONS AND THEY RANGE 4 FROM 30 TO 100 PAGES AND THEY'RE QUITE SERIOUS ACADEMIC 5 WORKS, I DIDN'T WANT TO INFLATE MY C.V. BY PUTTING FIVE 6 PAGES OF ENCYCLOPEDIA ENTRIES ON A CASE UNDER THE SAME 7 HEADING AS ACADEMIC ARTICLES. THESE ARE JUST SHORTER 8 PUBLICATIONS THAT DID NOT TAKE AS MUCH TIME. AND PERHAPS 9 SOME OF THEM MAY -- SOME OF THEM DID GO THROUGH PEER 10 REVIEW. OTHERS DIDN'T. 11 Q HAVE YOU BEING ASKED TO SERVE AS A PEER REVIEWER 12 FOR VARIOUS JOURNALS? 13 A YES. I'VE SERVED MANY TIMES AS A PEER REVIEWER. 14 I BELIEVE THE MANY TIMES ARE LISTED ON PAGE 15 AND 16 OF 15 THE PROFESSIONAL ACTIVITIES. SO IT LOOKS LIKE ABOUT TEN 16 DIFFERENT JOURNALS GOING BACK TO 1995. I'VE REVIEWED MANY 17 JOURNAL ARTICLES THAT HAVE BEEN SUBMITTED TO THOSE 18 JOURNALS. 19 Q AS PART OF PEER REVIEW PROCESS? 20 A YES. I'VE ALSO SERVED ON EDITORIAL BOARD OF LAW 21 AND SOCIETY REVIEW WHICH IS ALSO LISTED ON THERE ON 15, 22 WHICH I BELIEVE IS A LEADING JOURNAL IN THE LAW AND SOCIAL 23 SCIENCE AREA. AND AS AN EDITORIAL BOARD MEMBER, ONE IS 24 CALLED ON MORE FREQUENTLY, FOUR, FIVE, SIX TIMES A YEAR TO 25 REVIEW ARTICLES OR MAKE INPUT ABOUT EDITORIAL DECISION. 26 Q HAVE YOU RECEIVED ANY AWARD OR DISTINCTION IN 27 YOUR FIELD? 28 A I HAVE. THEY ARE LISTED ON PAGE SIX OF THE C.V. 13 1 Q ANY THAT ARE PARTICULARLY GERMANE TO ISSUES WE'RE 2 DEALING WITH TODAY? 3 A WELL, I RECEIVED THREE AWARDS THAT ARE BASED ON 4 MY RESEARCH ON INTERROGATION AND CONFESSION. ONE OF THEM 5 WAS DISTINGUISHED ASSISTANT PROFESSOR AWARD FOR RESEARCH 6 FROM U.C. IRVINE IN THE YEAR 2001. THERE ARE THREE LEVELS 7 AT THE UNIVERSITY ASSISTANT, ASSOCIATE, AND FULL 8 PROFESSOR. AND IT TAKES SEVERAL YEARS TO GET THROUGH EACH 9 ONE. ALTHOUGH I ENDED UP A FULL PROFESSOR IN THE ACADEMIC 10 YEAR 2000 AND 2001, I RECEIVED THE RESEARCH AWARD FOR 11 EVERYBODY WHO IS IN THE CATEGORY OF ASSISTANT PROFESSOR 12 THERE WITHIN THE FIRST SEVEN YEARS. AND THIS WAS BASED ON 13 MY -- PRIMARILY ON MY RESEARCH ON INTERROGATION AND 14 CONFESSION. I'D ALSO RECEIVED A RESEARCH AWARD FOR EARLY 15 CAREER EXCELLENCE AND CONTRIBUTIONS TO PSYCHOLOGY, LAW AND 16 PUBLIC POLICY IN THE YEAR 2000 FROM THE AMERICAN 17 PSYCHOLOGY-LAW SOCIETY. THIS WAS CALLED THE SHALEEM, 18 S-H-A-L-E-E-M, SHAH, S-H-A-H, CAREER ACHIEVEMENT AWARD. 19 ALSO LISTED ON PAGE SIX OF THE C.V. 20 AND THE OTHER OF THE THREE AWARDS WAS GIVEN IN 21 1999 BY THE AMERICAN SOCIETY OF CRIMINOLOGY. THIS IS THE 22 MAIN RESEARCH AND PROFESSIONAL ORGANIZATION FOR 23 CRIMINOLOGISTS. IT WAS CALLED THE RUTH SHONLE, 24 S-H-O-N-L-E, CAVAN, C-A-V-A-N, AWARD FOR SCHOLARLY 25 CONTRIBUTIONS FROM YOUNG SCHOLAR FIELD OF CRIMINOLOGY. 26 ALL THREE OF THESE WERE BASED ON MY RESEARCH TO DATE AT 27 THE TIME AND PRIMARILY ON MY RESEARCH IN INTERROGATION AND 28 CONFESSION, WHICH IS WHAT I'VE PRIMARILY FOCUSED ON. 14 1 Q YOUR AREA OF STUDY I IMAGINE THERE ARE 2 PROFESSIONAL MEETINGS WHERE VARIOUS SCHOLARS GET TOGETHER 3 AND DISCUSS CURRENT DEVELOPMENTS AND THAT SORT OF THING? 4 A CORRECT. THESE WOULD BE PROFESSIONAL MEETINGS. 5 TYPICALLY MANY OF THE ORGANIZATIONS WE AS SCHOLARS BELONG 6 TO HAVE ANNUAL MEETINGS. AND WHAT HAPPENS AT THOSE 7 MEETINGS IS WE PRESENT RESEARCH IN PROGRESS OR SYNTHESIS 8 OF EXISTING RESEARCH AND ONE HAS TO SUBMIT ABSTRACTS OF 9 EITHER EXISTING RESEARCH OR NEW RESEARCH OR SYNTHESIS OF 10 EXISTING RESEARCH. AND THEN IT GOES THROUGH A KIND OF 11 PEER REVIEW PROCESS. SOMETIMES YOU'RE REJECTED, SOMETIMES 12 YOU'RE ACCEPTED. PANELS ARE FORMED AND THEN THERE ARE TWO 13 OR THREE-DAY MEETING WITH FOUR OR FIVE TIME SLOTS 14 THROUGHOUT THE DAY WHERE VARIOUS PANELS OF PEOPLE ON THOSE 15 PANELS WILL PRESENT THEIR RESEARCH. AND SO I HAVE LISTED 16 ON PAGES SIX TO EIGHT OF MY C.V. THE VARIOUS PRESENTATIONS 17 THAT I'VE MADE OF EXISTING RESEARCH AT SCIENTIFIC AND 18 ACADEMIC PROFESSIONAL MEETINGS. 19 Q THESE ARE ALSO SUBJECT, I UNDERSTAND, TO SOME 20 FORM OF PEER REVIEW IF YOU SUBMIT YOUR BOOKS TO MEETINGS 21 IN ADVANCE AND THEY EITHER ACCEPT OR REJECT IT AS PART OF 22 WHAT THEY WILL PRESENT? 23 A CORRECT. SOMETIMES THEY JUST WANT AN ABSTRACT 24 DEFINING WHICH PROFESSIONAL SOCIETY. SOME OF THEM WANT A 25 20-PAGE PAPER DESCRIBING THE RESEARCH. 26 Q HOW MANY TIMES HAVE YOU DONE THAT? GIVEN 27 PRESENTATIONS AT THESE MEETINGS? 28 A I HAVEN'T COUNTED, BUT IT LOOKS TO ME LIKE ABOUT 15 1 TWO DOZEN. 2 Q AND HAS THAT BEEN JUST IN THE STATE OF 3 CALIFORNIA, OR IS THAT ALL OVER? 4 A NO, THESE MEETINGS FOR PROFESSIONAL ORGANIZATIONS 5 LIKE THE AMERICAN SOCIETY OF CRIMINOLOGY OR AMERICAN 6 PSYCHOLOGICAL ASSOCIATION OR THE LAW AND SOCIETY 7 ASSOCIATION, THEY'RE ALL ACROSS THE COUNTRY, SOMETIMES 8 THEY'RE INTERNATIONAL. THEY TYPICALLY ONLY MEET ONCE A 9 YEAR. BUT I HAVE NO CONTROL OVER WHERE THEY MEET. SO 10 MOST OF THE PRESENTATIONS ACTUALLY ARE IN STATES OTHER 11 THAN CALIFORNIA. 12 Q AND HAVE MANY OF THE PRESENTATIONS YOU'VE MADE AT 13 THESE VARIOUS MEETINGS INVOLVED POLICE INTERROGATION 14 PRACTICES AND COERCION? 15 A YES. MANY OF THE PRESENTATIONS HAVE BEEN ABOUT 16 VARIOUS ASPECTS OF MY RESEARCH ON THOSE TOPICS. 17 Q LET'S TALK ABOUT PRESENTATIONS AT UNIVERSITIES. 18 AM I CORRECT IN ASSUMING THAT THESE ARE NOT THE SORT OF 19 THINGS THAT ARE SUBJECT TO PEER REVIEW? 20 A THAT'S CORRECT. THESE ARE TYPICALLY INVITED. 21 THEY'RE LISTED ON PAGES EIGHT THROUGH ELEVEN OF MY C.V. 22 MANY TIMES SOMEBODY AT A UNIVERSITY IN A RELATED 23 DEPARTMENT OR DEPARTMENT CHAIR WILL INVITE A SCHOLAR TO 24 PRESENT THEIR RESEARCH AND IT'S TYPICALLY NOT NEW RESEARCH 25 THAT YOU PRESENT, ALTHOUGH SOMETIMES YOU DO. IT MIGHT BE 26 SYNTHESIS OF EXISTING RESEARCH. AND WHEN ONE GETS THESE 27 INVITATIONS, TYPICALLY THERE'S NO PEER REVIEW PROCESS. 28 Q AND HOW MANY DIFFERENT STATES HAVE YOU GIVEN 16 1 THESE PRESENTATIONS TO VARIOUS UNIVERSITIES? 2 A I HAVEN'T COUNTED. IT LOOKS LIKE AT LEAST HALF A 3 DOES, MAYBE EVEN A DOZEN DIFFERENT STATES, POSSIBLY EVEN 4 MORE THAN THAT. 5 Q HAS IT BEEN RESTRICTED TO THIS COUNTRY? HAVE YOU 6 GIVEN PRESENTATIONS TO UNIVERSITIES ON THESE SUBJECTS 7 OUTSIDE THE U.S. 8 A YEAH. IN 1996 I GAVE SOME LECTURES IN CHINA, SO 9 I HAVE GIVEN LECTURES IN OTHER COUNTRIES AS WELL. 10 Q LET'S TALK ABOUT GRANTS FOR A MOMENT. GRANT IS 11 THAT SOMETHING THAT YOU MUST APPLY FOR FROM SAY 12 UNIVERSITIES IN ORDER TO GET THEM TO FUND A RESEARCH 13 PROJECT THAT YOU HAVE IN MIND? 14 A YEAH. AND I'VE GOTTEN ALL OF MY GRANTS FROM THE 15 UNIVERSITY THAT I'VE WORKED FOR. THERE ARE ALSO OTHER 16 FUNDING INSTITUTIONS OUTSIDE OF UNIVERSITIES THAT FUND 17 DIFFERENT TYPES OF RESEARCH AS WELL. 18 Q AND IS THERE SOME SORT OF REVIEW PROCESS INVOLVED 19 IN THAT OR DO YOU JUST SORT OF ASK FOR MONEY AND THEY GIVE 20 IT TO YOU, OR DO THEY HAVE TO FIND THERE'S MERIT IN YOUR 21 WORKS? 22 A THERE'S A REVIEW PROCESS FOR GRANTS. THERE'S 23 COMMITTEES ASSEMBLED THAT REVIEW THE APPLICATION AND THE 24 WORK THAT'S DEEMED MERITORIOUS WILL GET IT. ALTHOUGH I'M 25 SURE A LOT OF MERITORIOUS WORK ALSO GETS TURNED DOWN. IT 26 MAY ALSO BE A FUNCTION OF THE FUNDING THAT'S AVAILABLE OR 27 THE GUIDELINES OF WHAT THE INSTITUTION IS LOOKING FOR IN 28 TERMS OF WHO IT FUNDS THAT YEAR. 17 1 Q AND HAVE YOU RECEIVED A NUMBER OF GRANTS TO STUDY 2 THE AREA OF POLICE INTERROGATION PRACTICES AND COERCION? 3 A YES. PRIMARILY FROM TWO UNIVERSITIES THAT I'VE 4 BEEN EMPLOYED BY U.C. IRVINE AND THE UNIVERSITY OF 5 COLORADO AT BOULDER. 6 Q LET'S TALK ABOUT PROFESSIONAL ASSOCIATIONS OTHER 7 THAN THE ONES THAT YOU'VE ALREADY TALKED ABOUT. THE ONES 8 YOU BELONG TO. 9 HAVE YOU GIVEN PRESENTATIONS TO THEM? 10 A YES, I'VE GIVEN MANY PRESENTATIONS TO THESE 11 PROFESSIONAL ASSOCIATIONS. IF I UNDERSTAND YOUR QUESTION, 12 YOU'RE TALKING ABOUT LIKE THE AMERICAN SOCIETY OF 13 CRIMINOLOGY OR THE AMERICAN PSYCHOLOGICAL ASSOCIATION. 14 Q THOSE ARE SORTS OF THINGS I'M TALKING ABOUT. I'M 15 TRYING TO GET AT SOMETHING THAT'S DIFFERENT THAN THE ONES 16 WE'VE TALKED ABOUT UNDER SCIENTIFIC AND ACADEMIC MEETINGS, 17 TRYING TO DISTINGUISH BETWEEN THE TWO OF THEM. 18 A I SEE. I WAS A LITTLE CONFUSED. ON PAGE ELEVEN 19 OF MY C.V. I HAVE PRESENTATIONS TO PROFESSIONAL 20 ASSOCIATIONS. AND THESE ARE PRIMARILY ORGANIZATIONS OF 21 ATTORNEYS OR PSYCHOLOGISTS. AND I BELIEVE I MAKE A 22 DISTINCTION IN NEXT SECTION TO LAW ENFORCEMENT. I 23 FREQUENTLY GET INVITED TO PRESENT MY WORK TO ATTORNEYS 24 ORGANIZATIONS AND SOMETIMES TO PSYCHOLOGISTS AND SOMETIMES 25 TO LAW ENFORCEMENT AS WELL. 26 Q HAVE ALL OF THESE PRESENTATIONS OR ALMOST ALL OF 27 THEM RELATED TO THE FIELD OF POLICE INTERROGATION AND 28 COERCION? 18 1 A I BELIEVE THEY ALL HAVE IN ONE WAY OR ANOTHER, 2 YES. 3 Q AND HOW MANY TIMES HAVE YOU GIVEN THESE 4 PRESENTATIONS APPROXIMATELY? 5 A I WOULD SAY MAYBE A DOZEN TO TWO DOZEN IS WHAT IT 6 LOOKS LIKE. 7 Q HAVE YOU GIVEN THESE PRESENTATIONS TO FEDERAL 8 GOVERNMENT AS WELL? 9 A YES, THE MILITARY AND STATE ORGANIZATIONS AS 10 WELL. 11 Q LET'S TALK ABOUT PRESENTATIONS THAT YOU'VE MADE 12 TO LAW ENFORCEMENT ORGANIZATIONS IN PARTICULAR. HOW MANY 13 OF THOSE HAVE YOU DONE? 14 A ON THIS CURRICULUM VITAE I HAVE FIVE LISTED? 15 LAST WEEK I SPENT THREE DAYS IN FORT LAUDERDALE, FLORIDA, 16 GIVING TRAINING SESSIONS TO THE FORT ON BROW REGARD COUNTY 17 SHERIFF'S OFFICE ON INTERROGATION AND CONFESSIONS AND 18 COERCION, WHICH IS NOT LISTED. THIS IS AN OLDER VERSION 19 OF THE C.V. SO THAT WOULD BE SIX. AND THOSE WERE 20 SIX-HOUR TRAINING SESSIONS, THREE DAYS EACH. SIX TIMES 21 THREE. HERE I'VE GOT LISTED TRAINING I DID TO POLICE IN 22 LOUISIANA, AS WELL AS POLICE IN TEXAS. HAYWARD, 23 CALIFORNIA, WAS A LECTURE. AND THEN LECTURE THAT I GAVE 24 IN CHINA, REPUBLIC OF CHINA AND REPUBLIC OF CYPRUS OFF THE 25 COAST OF GREECE. 26 Q I IMAGINE WHEN YOU'RE GOING TO POLICE WHAT 27 THEY'RE TRYING TO GET FROM YOU ARE TECHNIQUES TO AVOID 28 COERCING A CONFESSION; IS THAT RIGHT? 19 1 A THERE ARE THREE AREAS THAT I USUALLY TALK ABOUT 2 WHEN I GIVE PRESENTATIONS TO POLICE ORGANIZATIONS OR 3 TRAINING SESSIONS UNLESS THEY ASK ME TO TALK ABOUT 4 SOMETHING ELSE. THE FIRST IS HOW TO MORE SUCCESSFULLY 5 ELICIT CONFESSIONS. HOW TO USE PSYCHOLOGY AND WHAT WE 6 KNOW FROM THE ACADEMIC STUDY OF PSYCHOLOGY, WHICH IS NOT 7 ALWAYS REFLECTED IN POLICE TRAINING MANUALS. THE IDEA IS 8 TO GET A BETTER UNDERSTANDING OF WHAT IS COERCION AND HOW 9 TO AVOID ELICITING A STATEMENT THAT WILL BE DEEMED COERCED 10 AND EXCLUDED FROM A COURT OF LAW. AND THIRD IS HOW TO 11 AVOID AND PREVENT ELICITING A FALSE OR UNRELIABLE 12 STATEMENTS OR ADMISSIONS. 13 Q DO YOU BELONG TO ANY PROFESSIONAL MEMBERSHIPS? 14 A YES, I BELONG TO A NUMBER OF PROFESSIONAL 15 ORGANIZATIONS LIKE THE ORGANIZATIONS I MENTIONED EARLIER, 16 THE AMERICAN SOCIETY OF CRIMINOLOGY, THE AMERICAN 17 PSYCHOLOGY-LAW SOCIETY, ACADEMY OF CRIMINAL JUSTICE 18 SCIENCES, AMERICAN PSYCHOLOGICAL ASSOCIATION. THERE'S A 19 FEW OTHERS THERE LISTED ON PAGE 17 OF MY VITAE. 20 Q LET'S TALK ABOUT YOUR WORK. 21 CURRENTLY, YOU ARE A PROFESSOR AT U.C. IRVINE; IS 22 THAT CORRECT? 23 A YES, BEEN THERE SINCE JULY OF 1997. I'M AN 24 ASSOCIATE PROFESSOR, AND I AM A PROFESSOR IN TWO DIFFERENT 25 AREAS. MY PRIMARY APPOINTMENT IS IN THE DEPARTMENT OF 26 CRIMINOLOGY. MY SECONDARY APPOINTMENT IS IN THE 27 DEPARTMENT OF PSYCHOLOGY AND SOCIAL BEHAVIOR. 28 Q AND DURING YOUR WORK AS A PROFESSOR HOW MANY 20 1 DIFFERENT COURSES HAVE YOU TAUGHT THAT RELATE TO POLICE 2 INTERROGATION TACTICS AND COERCIVENESS OR POLICE 3 INTERROGATION? 4 A PROBABLY ABOUT HALF A DOZEN DIFFERENT COURSES. 5 SOME OF THEM MANY, MANY TIMES. I THINK ALL THE COURSES 6 THAT I'VE TAUGHT ARE ACTUALLY DISPLAYED ON MY CURRICULUM 7 VITAE ON PAGES FOURTEEN AND FIFTEEN. VIRTUALLY ALL OF 8 THESE CLASSES, LOOKS LIKE ABOUT A DOZEN TOTAL LISTED, HAVE 9 HAD SOME SEGMENT ON INTERROGATION AND CONFESSION 10 COERCION. A FEW OF THE CLASSES HAVE BEEN PRIMARILY JUST 11 ABOUT THAT. 12 Q AND DO YOU HAVE, SAY, AN ACADEMIC SPECIALIZATION 13 IN YOUR WORK? 14 A WELL, I'M BROADLY TRAINED IN SOCIOLOGY AND 15 CRIMINOLOGY AND SOCIAL PSYCHOLOGY. WHEN YOU GET THE PH.D 16 AND GO ON TO BE A RESEARCHER, YOU NARROW YOUR FOCUS IN 17 TERMS OF RESEARCH SPECIALIZATION, UNLESS YOU'RE A 18 GENERALIST. AND IN MY CASE MY AREA OF RESEARCH 19 SPECIALIZATION HAS BEEN WHAT WE'VE BEEN TALKING ABOUT, 20 POLICE INTERVIEWS AND INTERROGATION, COERCIVE INFLUENCE 21 AND PERSUASION, TRUE AND FALSE CONFESSIONS. AN AREA OF 22 STUDY CALLED MISCARRIAGE OF JUSTICE WITHIN THE BROADER 23 FIELD OF CRIMINAL SOCIAL PSYCHOLOGY AND SOCIOLOGY. 24 Q LET'S TALK ABOUT YOUR PRIOR TESTIMONY IN CASES 25 RELATING WHERE YOU WERE ASKED TO TESTIFY ABOUT POLICE 26 INTERROGATION PRACTICES AND COERCIVENESS. 27 HOW MANY TIMES WOULD YOU SAY YOU'VE TESTIFIED IN 28 THIS AREA? 21 1 A I'VE TESTIFIED IN THIS AREA I BELIEVE 72 TIMES. 2 I DIDN'T BRING MY LITTLE STAT SHEET WITH ME. GOING BACK 3 TO 1997, I FIRST TESTIFIED I BELIEVE IN 1997, I'VE 4 TESTIFIED IN 17 DIFFERENT STATES PRIMARILY IN THE STATE OF 5 CALIFORNIA. I'VE TESTIFIED IN STATE COURTS PRIMARILY, BUT 6 ALSO IN FEDERAL AND MILITARY COURTS. 7 Q AND OUT OF THOSE TIMES THAT YOU'VE TESTIFIED, 8 WHAT PERCENTAGE OF CASES DO YOU TESTIFY IN WHERE YOU'VE 9 BEEN ASKED TO REVIEW A CASE? 10 A WELL, I'VE BEEN ASKED TO REVIEW ABOUT 350 CASES 11 OR COME ON AS CONSULTANT AND CONSULT ON THOSE CASES. AND 12 MANY OF THE CASES I CAN -- SIMPLY CAN'T HELP THE DEFENSE 13 ATTORNEY WHO CONTACTS ME OR THE ATTORNEY WHO CONTACTS ME. 14 MAYBE A CIVIL ATTORNEY. AND IF I TESTIFIED 72 SOME-ODD 15 TIMES AND CONSULTED ON 350 CASES APPROXIMATELY, IT'S ABOUT 16 ONE IN FIVE. SO I TESTIFIED TYPICALLY IN ONE OUT OF EVERY 17 FIVE CASES THAT I'M ASKED TO REVIEW MATERIALS FOR. 18 Q WOULD IT BE FAIR TO GUESS OR PRESUME THAT THE 19 OTHER FOUR OUT OF FIVE YOU'VE HAD TO TELL THE ATTORNEY, 20 POSSIBLY DEFENSE ATTORNEY, THAT YOU JUST CAN'T HELP THEM 21 IN THAT CASE? 22 A I THINK MANY OF THOSE, NOT ALL. SOME RESOLVE 23 BEFORE THEY WOULD CALL ME TO TESTIFY. SAY IF THEY WANT ME 24 TO TESTIFY AT TRIAL, THE CASE RESOLVES BY PLEA BARGAIN; 25 BUT A GREAT MAJORITY I CAN'T GIVE ASSISTANCE TO THE 26 DEFENSE OR CIVIL ATTORNEY. 27 Q HAVE YOU EVER TESTIFIED FOR THE PROSECUTION? 28 A NO. 22 1 Q IS THERE A REASON FOR THAT FROM YOUR PERSPECTIVE? 2 A YES, THERE IS A REASON FOR THAT. AND THE REASON 3 IS THAT THE PROSECUTION NEVER CONTACTS ME. I'VE ONLY BEEN 4 CONTACTED A COUPLE TIMES BY THE PROSECUTION. ONCE WAS A 5 CASE THAT HAD TO DO WITH JURIES AND THAT WAS OUTSIDE MY 6 AREA OF SPECIALIZATION. AND THE OTHER TIME THERE WAS A 7 CONFLICT OF INTEREST. A RESEARCHER WHO I WAS WRITING 8 ARTICLES WITH HAD BEEN RETAINED BY THE DEFENSE ATTORNEY. 9 AFTER I FOUND THAT OUT, I DIDN'T FEEL ETHICALLY 10 COMFORTABLE PARTICIPATING IN THE CASE. ALTHOUGH HAD THERE 11 NOT BEEN THE CONFLICT, I WOULD HAVE BEEN HAPPY TO REVIEW 12 MATERIALS. 13 AND THE REASON I DON'T WORK FOR PROSECUTORS OR 14 CONSULT WITH PROSECUTORS OR TESTIFY ON THEIR BEHALF IS NOT 15 BECAUSE I HAVE A BIAS AGAINST PROSECUTORS. I'VE GIVEN 16 PRESENTATIONS TO PROSECUTORS. IT'S BECAUSE THEY DON'T 17 CONTACT ME, PRESUMABLY GIVEN MY AREA OF EXPERTISE. 18 Q WERE YOU CONTACTED BY FEDERAL PROSECUTORS IN AN 19 EFFORT TO TRY AND GET YOU TO ASSIST THEM IN THE OKLAHOMA 20 CITY BOMBING CASE? 21 A THAT WAS THE CASE THAT I WAS REFERRING TO WHERE 22 THEY CONTACTED ME ABOUT A JURY ISSUE, A JOINDER ISSUE. 23 AND AT THE TIME I WAS PROFESSOR AT THE UNIVERSITY OF 24 COLORADO. AND THEIR PROFESSOR THERE IS ONE OF THE LEADING 25 JURY EXPERTS IN THE COUNTRY AND I REFERRED THEM TO HIM. 26 Q WE'VE TALKED A BIT ABOUT PEER REVIEW. LET'S TALK 27 FOR A MOMENT ABOUT THE SCIENTIFIC METHOD. 28 IS THERE SOMETHING CALLED THE SCIENTIFIC METHOD? 23 1 A THE SCIENTIFIC METHOD, YES, REFERS TO RESEARCH 2 METHODS IN SCIENCE AND SOCIAL SCIENCE, THE GOAL OF WHICH 3 IS TO PROVIDE VALID AND RELIABLE KNOWLEDGE. 4 Q AND WOULD YOU SAY THAT CRIMINOLOGY IS A 5 RECOGNIZED AREA OF SCHOLARLY ENDEAVOR? 6 A YES. AND IT'S RECOGNIZED BECAUSE EVERY MAJOR 7 UNIVERSITY IN THE COUNTRY HAS EITHER A CRIMINOLOGY 8 DEPARTMENT OR THEY HAVE A SOCIOLOGY DEPARTMENT THAT AS 9 CRIMINOLOGY AS A MAJOR FOCUS. 10 I WOULD SAY IT'S A RECOGNIZED SOCIAL SCIENCE 11 DISCIPLINE IN UNIVERSITIES AND PROFESSIONAL ORGANIZATIONS 12 ACROSS THE COUNTRY AND HAS BEEN FOR OVER 100 YEARS. 13 Q AND IS THE STUDY DONE IN THE AREA OF CRIMINOLOGY 14 BROKEN DOWN INTO DIFFERENT FIELDS OR SUB-CATEGORIES? 15 A CORRECT. THE PRIMARY DISTINCTION IS BETWEEN THE 16 CAUSES OF JUVENILE DELINQUENCY OR DEVIANCE OR CRIME OR 17 OFFENDING, A LOT OF PEOPLE FOCUS ON THAT ASPECT, WHAT 18 MOTIVATES PEOPLE TO DO THINGS AND HOW THEY GET CAUGHT UP 19 IN THINGS. AND THE OTHER ASPECT IS STUDYING THE CRIMINAL 20 JUSTICE SYSTEM AND HOW IT RESPONDS TO CRIME OR ACTS OF 21 DEVIANCE OR ALLEGATIONS OF CRIME. AND WITHIN THAT THERE'S 22 SPECIALIZATION OF DIFFERENT INSTITUTIONS OF CRIMINAL 23 JUSTICE FROM POLICE TO PROSECUTION, ALL THE WAY TO 24 SENTENCING AND PROBATION, PAROLE. 25 MY AREA OF SPECIALIZATION WITHIN THE FIELD OF 26 CRIMINOLOGY IS THE STUDY OF POLICING AND IN PARTICULAR 27 CRIMINAL INVESTIGATION AND POLICE INTERROGATION. 28 Q NOW THE STUDY OF POLICE INTERROGATION, IS THAT A 24 1 WELL-ESTABLISHED FIELD OF STUDY WITHIN THE CRIMINOLOGY 2 FIELD? 3 A YES, MORE OF A SUB-FIELD OF STUDY. IT'S 4 RECOGNIZED AS ONE AREA OF STUDY. THERE'S BEEN A GREAT 5 DEAL OF SCHOLARSHIPS IN THE FIELD IN THE 20TH CENTURY AND 6 INTO THE 21ST CENTURY, SO IT'S A RECOGNIZED SUB-AREA OF 7 STUDY WITHIN THE BROADER DISCIPLINE OF CRIMINOLOGY. 8 Q WHEN DID STUDY IN THIS AREA, THE STUDY THAT -- 9 THE SCHOLARLY WORK IN THAT AREA, WHEN DID THAT FIRST START 10 TO APPEAR? 11 A THE FIRST STUDY -- APPLIED STUDY IN THE AREA OF 12 INTERROGATION THAT I'VE BEEN ON AND OTHERS HAVE BEEN DATED 13 TO DATE IS 1908. IT WAS QUITE PRIMITIVE BACK THEN. THE 14 FIELD HAS REALLY TAKEN OFF IN THE 1960S AND '70S. AND 15 THEN AS ALL SCIENTIFIC AREAS, SORT OF EVERY DECADE YOU GET 16 MORE SCHOLARSHIPS. LIKE IN THE PREVIOUS DECADE, 1990S, 17 THERE'S REALLY QUITE A LOT OF LITERATURE IN THIS AREA. 18 Q IS THE STUDY OF POLICE INTERROGATION SOMETHING 19 ONLY DONE IN THE UNITED STATES OR IS THERE MORE OF A 20 WORLD-WIDE AREA OF STUDY? 21 A IT'S STUDIED ACROSS THE WORLD BY CRIMINOLOGISTS 22 AS WELL AS SOCIOLOGISTS AND PSYCHOLOGISTS. THE PRIMARY 23 TWO COUNTRIES, THERE ARE ENGLAND AND UNITED STATES, AND 24 THERE'S A GREAT DEAL OF SCHOLARSHIPS IN BOTH THOSE 25 COUNTRIES ABOUT POLICE INTERROGATIONS AND PRACTICES AND 26 CONCESSIONS. 27 Q YOU MENTIONED EARLY STUDIES IN 1908 ARE SOMEWHAT 28 PRIMITIVE? 25 1 A BY TODAY'S STANDARDS. 2 Q HAVE THERE BEEN STUDIES IN THIS AREA THAT HAVE 3 FOLLOWED THE SCIENTIFIC METHOD? 4 A YES. THERE ARE IN THE SOCIAL SCIENCES FIVE 5 DIFFERENT METHODS THAT PEOPLE USE, ALL OF WHICH ARE 6 SCIENTIFIC, ALL OF WHICH HAVE ADVANTAGES AND 7 DISADVANTAGES, SOME OF WHICH MAY BE APPROPRIATE MORE SO IN 8 ONE TYPE OF SITUATION OR ONE TYPE OF STUDY THAN ANOTHER. 9 AND THESE WOULD BE EXPERIMENTAL METHOD, THE OBSERVATIONAL 10 METHOD, INTERVIEWING AS A METHOD, PUBLIC SURVEYS OR 11 SURVEYS, AND THEN ANALYSIS OF DOCUMENTS, OR HISTORICAL OR 12 ARCHIVAL ANALYSIS. 13 AND EACH OF THESE METHODS HAVE BEEN USED IN THIS 14 AREA, SOME WITH MORE OR LESS SUCCESS. AND THEY'RE ALL 15 REGARDED AS SCIENTIFIC METHODS, THOUGH NO METHOD IS 16 PERFECT. AND SOME METHODS ARE MORE GEARED TOWARD 17 PARTICULAR TYPES OF QUESTIONS OR AREAS OF STUDY THAN 18 OTHERS. 19 Q STILL TALKING ABOUT THE AREA OF STUDY INCLUDING 20 POLICE INTERROGATION AND COERCION, HAVE THERE BEEN 21 PUBLISHED PEER REVIEWED STUDIES ON THAT PARTICULAR TOPIC? 22 A YES, MORE BROADLY ON INTERROGATION AND CONFESSION 23 DEALING WITH ASPECTS OF COERCION; BUT, YES, THERE'S A 24 GREAT DEAL OF LITERATURE ON THIS TOPIC. THERE'S A 25 TEXTBOOK, COUPLE OF THEM, BUT THE LEADING ONE PUBLISHED IN 26 1992 AND THE SECOND EDITION OF WHICH IS GOING TO COME OUT 27 ANY MONTH NOW HAS A BIBLIOGRAPHY OF ALMOST 1,000 ARTICLES. 28 WHEN THE NEW EDITION COMES OUT NOW TEN YEARS LATER, I'M 26 1 SURE IT WILL COME OUT THIS YEAR SOMETIME OR EARLY NEXT 2 YEAR, IT MAY HAVE MORE ARTICLES IN THE BIBLIOGRAPHY. 3 Q IS THE STUDY OF POLICE INTERROGATION AND 4 CONFESSION CONSIDERED TO BE A VALID AND LEGITIMATE 5 SUB-FIELD OF STUDY WITHIN THE SOCIAL SCIENCES? 6 A IT IS. THAT'S WHY PEOPLE DO RESEARCH ON IT AND 7 PEOPLE TEACH CLASSES ON IT. THAT'S WHY TEXTBOOKS ARE 8 WRITTEN AND ENCYCLOPEDIAS ARE WRITTEN, ARTICLES ARE 9 PUBLISHED, PRESENTATIONS ARE MADE. SO IT'S A VALID AND 10 LEGITIMATE AREA OF STUDY, ACADEMIC SPECIALIZATION. 11 Q NOW I IMAGINE, AS IN ANY FIELD OF STUDY, THERE 12 ARE SOME EXPERTS WHICH ARE THE BEST, MOST EDUCATED, MOST 13 KNOWLEDGEABLE EXPERT IN THAT FIELD; WOULD YOU AGREE? 14 A TYPICALLY, YEAH, OR THE MOST VISIBLE EXPERTS, 15 SOME WHO HAVE PUBLISHED MORE THAN OTHERS, CORRECT. 16 Q ARE THERE TWO EXPERTS IN YOUR FIELD THAT ARE THE 17 PREEMINENT EXPERTS -- 18 MR. FAULDER: OBJECTION. RELEVANCE. 19 MR. J. PETERSEN: IT GOES TO QUALIFICATION. 20 MR. FAULDER: HOW DOES IT GO TO HIS QUALIFICATION 21 IF THERE ARE OTHER EXPERTS? 22 THE COURT: OBJECTION'S SUSTAINED. 23 MR. J. PETERSEN: OKAY. I'LL ASK IT ANOTHER WAY. 24 Q (BY MR. J. PETERSEN) ARE YOU ONE OF THE TWO 25 EXPERTS IN YOUR FIELD OF STUDY? 26 MR. FAULDER: OBJECTION, YOUR HONOR. 27 THE COURT: IT'S OVERRULED. 28 THE WITNESS: I WOULD SAY I'M ONE OF THE THREE 27 1 LEADING EXPERTS. THE OTHER TWO BEING RICHARD OFSHE, 2 O-F-S-H-E, WHO'S A PROFESSOR OF SOCIOLOGY AT U.C. BERKELEY 3 AND THEN SAUL KASSIN, K-A-S-S-I-N, WHO IS A PROFESSOR OF 4 PSYCHOLOGY AT WILLIAMS COLLEGE IN MASSACHUSETTS. 5 Q (BY MR. J. PETERSEN) AND LET'S TALK ABOUT 6 CONFESSIONS AND VOLUNTARINESS. IS THERE ANY SERIOUS 7 DISPUTE THAT CERTAIN POLICE INTERROGATION PRACTICES CAN 8 AND DO PRODUCE INVOLUNTARY CONFESSIONS? 9 A NO. 10 Q AND IS THIS SOMETHING THAT IS UNIVERSALLY 11 ACCEPTED BY THOSE SCHOLARS WHO DO STUDY POLICE 12 INTERROGATION AND COERCION? 13 A YES. TO MY KNOWLEDGE, THERE'S NO DISPUTE ABOUT 14 THIS. 15 Q AND IF THERE'S NO DISPUTE WHAT ARE THE STUDIES 16 THAT ARE DONE IN THIS AREA ABOUT? IF EVERYONE AGREES TO 17 THAT, WHAT ARE THE STUDIES FOR? 18 A THE STUDIES ARE TO BETTER UNDERSTAND HOW 19 INTERROGATION WORKS AS A PSYCHOLOGICAL PROCESS, THE 20 TECHNIQUES THAT ARE USED, WHY THEY'RE EFFECTIVE OR NOT 21 EFFECTIVE, HOW THEY INDUCE CONFESSIONS AND COMPLIANCE, GET 22 PEOPLE TO SAY THINGS THAT ARE AGAINST THEIR SELF 23 INTEREST. SOME STUDIES MAY BE MORE HISTORICAL, SOME MORE 24 PSYCHOLOGICAL, SOME MAY BE MORE FOCUSED ON THE RULES LIKE 25 MIRANDA, OTHERS TO ACTUAL BEHAVIOR AND INTERACTION. SO 26 IT'S -- THE STUDIES ARE ABOUT THE PROCESS AND THE 27 PSYCHOLOGICAL PROCESS IN PARTICULAR OF INTERROGATION AND 28 HOW WE MOVE PEOPLE OR HOW PEOPLE GET MOVED FROM DENIAL TO 28 1 ADMISSION, ARE MADE TO MAKES CONFESSIONS, VOLUNTARY AS 2 WELL AS INVOLUNTARY, AS WELL AS TRUE AND FALSE. 3 Q FOCUSING ON INVOLUNTARY CONFESSIONS, ARE SOME OF 4 THE INVOLUNTARY CONFESSIONS TRUE? 5 A YES. 6 Q WHAT IS CONFESSED TO IS TRUE? 7 A YES. 8 Q WHETHER OR NOT AN INTERROGATION IS COERCIVE AND 9 WHETHER OR NOT THE RESULTING STATEMENT IF ONE IS MADE IS 10 INVOLUNTARY, IS AN INDEPENDENT -- FROM A RESEARCHER'S 11 POINT OF VIEW, INDEPENDENT QUESTION FROM WHETHER OR NOT 12 IT'S RELIABLE OR FALSE? 13 A YOU CAN HAVE A COERCIVE INTERROGATION PROCEEDING 14 BOTH RELIABLE AS WELL AS UNRELIABLE, TRUE AS WELL AS 15 FALSE, OR A NON-COERCIVE INTERROGATION AS WELL. 16 Q NOW, THE OPPOSITE WOULD ALSO BE TRUE, THAT SOME 17 INVOLUNTARY CONFESSIONS ARE ALSO FALSE, SOME TRUE, SOME 18 FALSE, JUST THAT'S AN INDEPENDENT AREA OF CONSIDERATION? 19 A CORRECT. THEY MAY BE RELATED IN THAT COERCIVE 20 POLICE METHODS MAY HAVE BEEN THE CAUSE OF EITHER RELIABLE 21 OR UNRELIABLE STATEMENTS, CAUSING THE PERSON TO SAY WHAT 22 HE OR SHE DID, BUT THEY ARE DISTINCT. 23 Q DOES THE COERCIVENESS OF AN INTERROGATION -- I'LL 24 WITHDRAW THAT QUESTION. 25 ARE THERE -- AGAIN FOCUS ON THE AREA OF STUDY OF 26 POLICE INTERROGATION PRACTICES AND COERCION, ARE THERE 27 ESTABLISHED FACTORS WHICH ARE KNOWN TO INFLUENCE THE 28 DECISION-MAKING OF A SUSPECT? 29 1 A YES, THERE ARE ESTABLISHED TECHNIQUES AND 2 ANALYSES OF THOSE TECHNIQUES, PSYCHOLOGICAL ANALYSES 3 ANALYZING WHICH ONES WORK AND WHERE THEY WORK AND HOW THEY 4 WORK AND WHAT THE PROCESS IS MEANT TO ACCOMPLISH THROUGH 5 THE USE OF THESE TECHNIQUES AND FACTORS. 6 Q AND THERE'S A GENERAL AGREEMENT AMONG THE 7 SCHOLARS IN YOUR FIELD AS TO WHAT THESE FACTORS ARE? 8 A YES. 9 Q AND IS THERE ANY SERIOUS DISPUTE THAT THESE 10 FACTORS DO IN FACT LEAD TO COERCED CONFESSIONS? 11 A THERE'S NO DISPUTE THAT SOME INTERROGATION 12 TECHNIQUES CAN LEAD TO COERCED AND INVOLUNTARY STATEMENTS 13 OR CONFESSIONS, YES. NOT THAT THE INTERROGATION'S 14 NECESSARILY COERCIVE OR THAT ALL TECHNIQUES ARE COERCIVE, 15 BUT THAT SOME TECHNIQUES IN PARTICULAR ARE COERCIVE AND 16 REASONS WHY THEY'RE COERCIVE AND CAN LEAD TO INVOLUNTARY 17 STATEMENTS. 18 Q LET'S TALK FOR A MOMENT ABOUT THE INTERROGATION 19 PROCESS. 20 NOW IS THERE A CERTAIN PROCESS THAT IS SORT OF 21 THE FORMULA FOR CONDUCTING AN INTERROGATION? 22 A THE GOAL OF AN INTERROGATION IS TO MOVE A SUSPECT 23 WHO THE POLICE BELIEVE ARE GUILTY OF A CRIME FROM DENIAL 24 WHICH THEY ANTICIPATE SINCE IT'S NOT IN THE SELF INTEREST 25 OF THE SUSPECT TO CONFESS TO ADMISSION. AND SO THE 26 PROCESS IS GEARED TOWARD CHANGING A SUSPECT'S PERCEPTION 27 OF HIS SITUATION AND WHAT'S IN HIS SELF INTEREST TO 28 OVERCOME OR BREAK THE SUSPECT'S RESISTANCE AND DENIAL AND 30 1 GET THE SUSPECT TO MAKE THE ADMISSION THAT THE 2 INTERROGATOR IS LOOKING FOR WHICH IS THOUGHT TO BE AGAINST 3 THE SUSPECT'S SELF INTEREST. 4 THE PSYCHOLOGICAL PROCESS FROM A SCHOLAR'S POINT 5 OF VIEW SIMPLIFIED BREAKS DOWN TO TWO CONCRETE STEPS AND 6 ALL THE TECHNIQUES OF INTERROGATION -- MAJOR TECHNIQUES 7 FIT INTO ONE OF THESE TWO STEPS. THE FIRST IS TO CONVINCE 8 A SUSPECT THAT THEY'RE CAUGHT, THEIR SITUATION IS HOPELESS 9 AND NO POINT OF RESISTING THE ACCUSATION THAT THEY 10 COMMITTED THIS CRIME. AND IF THAT IS SUCCESSFUL, THE 11 SUSPECT SHOULD NO LONGER BE CONFIDENT IN ASSERTIONS OR 12 DENIALS. 13 AND THE SECOND STEP IS TO OFFER THE SUSPECT 14 INDUCEMENTS OR REASONS WHY IT'S IN THEIR SELF INTEREST TO 15 CONFESS WHY THEY WOULD BE BETTER OFF CONFESSING AS TO NOT 16 CONFESSING, DENYING, REMAINING SILENT, WHATEVER THEY'RE 17 SAYING OR DOING THAT'S NOT MAKING AN ADMISSION. AND SO 18 TYPICAL INTERROGATION MOVES THROUGH TECHNIQUES WHOSE 19 PURPOSE ARE TO CONVINCE THEM THAT THEY'RE CAUGHT, NO WAY 20 OUT, YOU'RE STOPPED, YOU'RE POWERLESS. AND, SECONDLY, 21 GIVEN THIS STATE OF AFFAIRS WITH ALL THIS EVIDENCE AGAINST 22 YOU, FOR EXAMPLE, YOU'RE BETTER OFF BY CONFESSING HERE, 23 ARE ALL THE REASONS WHY YOU'RE BETTER OFF, WHY IT'S IN 24 YOUR SELF INTEREST. 25 NOW SOMETIMES AN INTERROGATION ISN'T AS CLEAN AS 26 THE ANALYTICAL MODEM I'VE JUST PUT FORWARD SUGGESTS. THE 27 INTERROGATOR JUMPS AROUND OR SOME OF THE TECHNIQUES ARE -- 28 INVOLVE THE FIRST STEP. AND THE SECOND STEP THERE'S FEWER 31 1 OF THEM, BUT THIS IS ANALYTIC OR PSYCHOLOGICAL MODEM OF 2 HOW TO UNDERSTAND THE PSYCHOLOGY OF INTERROGATION IN A 3 MINUTE OR LESS. 4 Q AND WHEN YOU ARE STUDYING INTERROGATION AND 5 COERCION, IS IT PART OF WHAT YOU DO AS A SOCIAL SCIENTIST 6 TO MAKE JUDGMENTS AS -- LIKE THIS IS A TECHNIQUE THAT IS 7 GOOD OR THIS IS A TECHNIQUE THAT IS BAD? DO YOU MAKE 8 MORAL JUDGMENTS LIKE THAT? 9 A I TRY NOT TO MAKE MORAL JUDGMENTS, NO. AS SOCIAL 10 SCIENTIST WHAT I'M INTERESTED IN KNOWLEDGE AND STUDY OF 11 BEHAVIOR AND WHAT WORKS AND WHAT DOESN'T WORK. SOMETIMES 12 PEOPLE THINK I'M MAKING MORAL JUDGMENTS. I'M NOT. I 13 THINK INTERROGATION IS LEGITIMATE AND IMPORTANT. AND 14 SOMETIMES IN MY RESEARCH I'LL WRITE ABOUT COERCIVE OR 15 IMPROPER TECHNIQUES, AND I DON'T MEAN TO BE MAKING A MORAL 16 JUDGMENT THERE SO MUCH AS DESCRIBING WHAT TECHNIQUES WERE 17 USED AND WHY THEY MIGHT HAVE ACCOMPLISHED CERTAIN ENDS. 18 OTHER TIMES I'LL BE CALLED TO TESTIFY EITHER AT A 19 PRETRIAL HEARING OR TRIAL OR POST-TRIAL ON POST CONVICTION 20 PROCEEDINGS AND MIGHT BE ASKED TO MAKE CERTAIN JUDGMENTS 21 ABOUT A PARTICULAR INTERROGATION. BUT GENERALLY NO. I 22 DON'T SEE MY ROLE AS MAKING MORAL JUDGMENTS SO MUCH AS 23 DOING RESEARCH AND TRYING TO COME TO AN UNDERSTANDING OF 24 HOW A PARTICULAR PROCESS, IN MY CASE, INTERROGATION AND 25 CONFESSION WORK. 26 Q AND THROUGH THE COURSE OF YOUR STUDY, HAVE YOU 27 DEVELOPED ANY PERSONAL FEELINGS ABOUT THE PROCESS OF 28 INTERROGATION? 32 1 A WELL, I'VE TRIED TO BE PROFESSIONAL AND 2 OBJECTIVE. I MEAN THERE ARE TIMES WHEN I REVIEW 3 INTERROGATIONS WHETHER FOR RESEARCH WHEN, YOU KNOW, I 4 MIGHT GET UPSET OR MIGHT BE SURPRISED OR I MIGHT BE 5 IMPRESSED. SO THERE ARE TIMES WHEN I DO HAVE PERSONAL 6 REACTIONS TO WHAT I STUDY OR I REVIEW, BUT I DON'T SEE 7 MYSELF AS PRO OR ANTI INTERROGATION. I DESCRIBED EARLIER 8 I JUST GOT BACK FROM THREE DAYS OF TRAINING AT A SHERIFF'S 9 OFFICE IN FLORIDA. EVERY TIME I'VE BEEN ASKED TO HELP OUT 10 LAW ENFORCEMENT, I HAVE. OBVIOUSLY I DO A LOT OF OR -- I 11 HAVE TESTIFIED A NUMBER OF TIMES IN COURT, TYPICALLY FOR 12 THE DEFENSE, BUT I DON'T SEE MYSELF AS TAKING ONE SIDE OR 13 ANOTHER SIDE. 14 Q YOU MENTIONED THAT THE INTERROGATION PROCESS IS A 15 TWO-STAGE PROCESS AND YOU TOLD US BASICALLY THE FIRST 16 STAGE IS TO MAKE A PERSON FEEL THAT THEY ARE HOPELESS, 17 THAT THEY'RE -- 18 A THAT THEY'RE CAUGHT. THEY'RE CAUGHT AND THERE'S 19 NO WAY OUT. AND RESISTANCE IS POINTLESS, THAT THEIR 20 SITUATION IS HOPELESS. TYPICALLY BECAUSE THERE'S SOME OF 21 EVIDENCE AGAINST THEM BECAUSE THE INTERROGATOR IS NOT 22 BUYING OR WILL NOT ACCEPT DENIALS OR THEIR ASSERTION OF AN 23 ALIBI. 24 Q THE SECOND STAGE IS BASICALLY OFFERING THEM 25 INDUCEMENTS OR THREATS TO GET THEM TO DO WHAT THE OFFICER 26 WANTS THEM TO DO, WHICH IS SAY WHAT THE OFFICER THINKS IS 27 WHAT HAPPENED? 28 MR. FAULDER: OBJECTION. MISSTATES THE EVIDENCE. 33 1 MR. J. PETERSEN: YOUR HONOR, HE'S AN EXPERT. I 2 BELIEVE IT'S A LEGITIMATE QUESTION TO AN EXPERT. 3 MR. FAULDER: YOU CAN'T MISSTATE THE EVIDENCE. 4 MR. J. PETERSEN: YOUR HONOR, AS AN EXPERT, IF 5 I'M WRONG, HE CAN TELL ME. 6 THE COURT: WELL, IS IT IN THE FORM OF A 7 HYPOTHETICAL? 8 MR. FAULDER: IT DIDN'T SOUND LIKE IT. 9 MR. J. PETERSEN: I CAN REPHRASE. IT'S NOT 10 IMPORTANT. 11 THE COURT: ALL RIGHT. 12 Q (BY MR. J. PETERSEN) THE SECOND STAGE, IF YOU 13 COULD BRIEFLY DESCRIBE THAT IN ONE SENTENCE AGAIN. 14 A IT WOULD BE OFFERING OR PERSUADING A SUSPECT THAT 15 IT'S IN THEIR SELF INTEREST TO CONFESS, THAT THE BENEFITS 16 OF CONFESSING OUTWEIGH THE CONSEQUENCES, TYPICALLY THROUGH 17 USING WHAT RESEARCHERS CALL INDUCEMENTS OR INCENTIVES TO 18 CONFESS. 19 Q AND IS THERE -- ASIDE FROM INDUCEMENTS, IS THERE 20 ANOTHER SIDE, A FLIP SIDE TO INDUCEMENTS? DO WE SOMETIMES 21 OFFER THREATS, FOR INSTANCE? 22 A YEAH. WELL, THE WAY WE CHARACTERIZE -- CLASSIFY 23 INDUCEMENTS IS ALONG A CONTINUUM FROM MAYBE THE LOW END OF 24 KIND OF INDUCEMENTS BEING SUGGESTED THAT ARE NOT TANGIBLE, 25 MAYBE APPEALS TO RELIGION OR IT'LL MAKE YOU FEEL BETTER, 26 THE TRUTH WILL SET YOU FREE. AND AS YOU MOVE ALONG THE 27 CONTINUUM TO A POLICY THAT FOCUSES ON THE CRIMINAL JUSTICE 28 SYSTEM AND THE FACT THAT THE SUSPECT IS BEING PROCESSED IN 34 1 THE CRIMINAL JUSTICE SYSTEM AND CONSEQUENCE TO COOPERATION 2 OR AT LEAST DENIALS OR REMORSE OR ACCEPTING 3 RESPONSIBILITY. 4 AND THEN TO THE FAR END OF THE CONTINUUM, THE 5 MOST TANGIBLE INDUCEMENTS WOULD BE EITHER IMPLIED OR 6 EXPLICIT THREATS OR PROMISES OR ATTEMPTS TO NEGOTIATE 7 BETTER OUTCOME FOR THE SUSPECT OR MAKE A SUSPECT THINK 8 THERE'S A BETTER OUTCOME IF HE COOPERATES WITH THE POLICE 9 AND CONFESSES AND, CONVERSELY, A WORSE OUTCOME IF HE FAILS 10 TO COOPERATE AND CONTINUES TO DENY ANY INVOLVEMENT IN THE 11 CRIME. 12 Q NOW, THE FIRST STAGE THAT YOU MENTIONED, THE 13 DEVELOPMENT OF HOPELESSNESS, IS THAT A PROCESS THAT IN 14 YOUR OPINION PRODUCES COERCED CONFESSIONS? 15 A TYPICALLY NOT. THE TECHNIQUES INVOLVED IN THAT 16 STAGE OF INTERROGATION ARE PRIMARILY ACCUSATION, CUTTING 17 OFF OF DENIALS, ATTACKING THE SUSPECT'S ALIBI AND 18 PRESENTING EITHER TRUE OR FALSE EVIDENCE OF THE PERSON'S 19 GUILT AND TRYING TO CONVINCE THEM THAT THEIR ASSESSMENT OF 20 THE SITUATION IS WRONG AND NO WAY OF ESCAPING THE FACT 21 THAT EVERYBODY IS GOING TO BELIEVE THEY'RE GUILTY. 22 TYPICALLY IN THAT STAGE, THEY'RE JUST CONVINCING SOMEBODY 23 THEIR SITUATION IS HOPELESS. NOTHING ABOUT THAT IS 24 TYPICALLY REGARDED AS COERCIVE. I SUPPOSE IT COULD BE, 25 BUT THEY AREN'T TECHNIQUES I WOULD IDENTIFY IN THAT STAGE. 26 Q IS LYING TO A SUSPECT ABOUT HIS FATE OF THE 27 EVIDENCE, LIKE SAYING FOR INSTANCE SAY WE'VE GOT YOUR 28 FINGERPRINTS OR WE FOUND YOUR SEMEN OR WE FOUND YOUR HAIR, 35 1 IS THAT PART OF THE FIRST STAGE OR IS THAT PART OF SOME 2 OTHER STAGE? 3 A YES, THAT AGAIN GOES TO GOAL OF CONVINCING 4 SOMEBODY THEY'RE CAUGHT AND THEIR SITUATION IS HOPELESS 5 AND NO WAY OUT. AND, OF COURSE, LYING ABOUT EVIDENCE IS 6 LEGAL. AND IT'S AGAIN MEANT TO CONVINCE THE SUSPECT THAT 7 THERE'S NO POINT IN RESISTING, TO BREAK THEIR CONFIDENCE 8 IN MAKING DENIALS TO THESE ASSERTIONS. 9 Q NOW THE SECOND STAGE. YOU'VE DESCRIBED SOME OF 10 THE THINGS THAT HAPPENED IN THE FIRST STAGE, SOME OF THE 11 TECHNIQUES THAT ARE USED. UNDERMINING A SUSPECT'S ALIBI, 12 FOR INSTANCE? 13 A CORRECT. 14 Q CUTTING OFF DENIALS. YOU GAVE US SORT OF A SHORT 15 LAUNDRY LIST. IS THERE A LIST THAT WOULD HAPPEN IN THE 16 SECOND STAGE? 17 A I THINK I'VE DESCRIBED THE SECOND STAGE INVOLVES 18 INDUCEMENTS WHERE APPEALS -- I THINK I DESCRIBED THE THREE 19 CATEGORIES TYPICALLY APPEALS TO MORALITY OR CONSCIENCE OR 20 THE BENEFITS OF TELLING THE TRUTH TO THE SOUL, OR 21 PERSONALITY, OR THE COMMUNITY; AND THEN THE SECOND SET OF 22 APPEALS AND THERE'RE ENDLESS VARIATIONS UNDER THESE 23 CATEGORIES, WOULD BE FOCUSING SOMEBODY ON THE FACT THAT 24 THEY'RE PART OF THE CRIMINAL JUSTICE SYSTEM AND THERE ARE 25 OTHER FACTORS IN THAT SYSTEM, POLICE, PROSECUTORS, JUDGES, 26 JURIES, AND THAT THEY MAY RECEIVE IN A GENERAL WAY MORE 27 FAVORABLE CONSIDERATION OR LESS FAVORABLE CONSIDERATION OR 28 MAY BE PERCEIVED AT A CERTAIN WAY DEPENDING WHETHER THEY 36 1 ADMIT OR DENY, SHOW REMORSE, FAIL TO SHOW REMORSE, 2 COOPERATE OR NOT. 3 AND, FINALLY, THE CATEGORY THAT I WAS REFERRING 4 TO EARLIER, THE IMPLICIT OR EXPLICIT DEAL-MAKING OR 5 NEGOTIATION OR WHAT IN LAW WOULD BE CALLED PROMISES OF 6 LENIENCY AND THREATS OF HARM. OR SOME INDUCEMENTS MIGHT 7 SUGGEST AN EXPLICIT BENEFIT IN TERMS OF A LOWER CHARGE, A 8 LIGHTER SENTENCE, BEING ABLE TO LEAVE AN INTERROGATION 9 VERSUS NOT BEING ABLE TO LEAVE, GOING TO JAIL OR NOT 10 GETTING A PARTICULAR SENTENCE VERSUS NOT GETTING A 11 PARTICULAR SENTENCE. SO YOU SEE THESE INDUCEMENTS RUN THE 12 GAMUT IN THOSE THREE CATEGORIES. 13 Q IS THERE A CATEGORY OF INDUCEMENTS CALLED 14 SYSTEMIC INCENTIVES? 15 A THAT WAS THE MIDDLE CATEGORY THAT I WAS TALKING 16 ABOUT. 17 Q THE ONE TALKING TO THE PERSON ABOUT THEIR 18 POSITION IN THE CRIMINAL JUSTICE SYSTEM AND IMPLYING 19 THROUGH WHATEVER STATEMENTS THEY WILL RECEIVE SOME SORT OF 20 BENEFIT DOING WHAT THE OFFICER WANTS THEM TO DO? 21 A YEAH, IN VERY GENERAL WAYS. IF YOU DON'T SAY 22 THIS, I CAN'T TESTIFY ON YOUR BEHALF. OR IF YOU -- WHAT'S 23 THE JUDGE AND JURY GOING TO THINK IF YOU CONTINUE TO LIE. 24 THEY'RE MEANT TO FOCUS THE SUSPECT ON THE FACT 25 THAT HIS CASE WILL GO THROUGH A PROCESS, THE CRIMINAL 26 JUSTICE PROCESS, AND PEOPLE WILL BE FORMING JUDGMENTS AND 27 PERCEPTIONS, PEOPLE LIKE JUDGES AND JURIES AND 28 PROSECUTORS. ALTHOUGH, TYPICALLY, THE SYSTEMIC INCENTIVES 37 1 ARE NOT EXPLICIT ABOUT WHAT PEOPLE WILL SAY OR DO, JUST 2 MEANT TO GET THE SUSPECT TO THINK THERE ARE CONSEQUENCES 3 TO WHAT I'M SAYING AND I MIGHT WANT TO IMPRESS THE PEOPLE 4 DOWN THE LINE WHO ARE GOING TO MAKE JUDGMENTS ABOUT ME. 5 Q JUDGMENTS ABOUT HIM THAT WILL AFFECT HIS ULTIMATE 6 OUTCOME? 7 A CORRECT. 8 Q AND IS THERE SORT OF A MORAL APPEALS, AGAIN WE'RE 9 IN THE SECOND STAGE -- I THINK YOU CALL IT A SECOND 10 STAGE -- YEAH, INCENTIVE STAGE, MORAL APPEALS AT THE LOW 11 END AND SYSTEMIC INCENTIVES AND SOMETHING ELSE CALLED A 12 HIGH-END INCENTIVE? 13 A CORRECT. THIS IS A LONG -- A CONTINUA OF TYPES 14 OF APPEALS OR INDUCEMENTS THAT THEY USE FROM THE MORAL TO 15 MORAL FOCUS ON CRIMINAL JUSTICE SYSTEM GENERALLY TO THEN 16 THE HIGH END WHICH I WAS REFERRING TO EARLIER AS EXPLICIT 17 NEGOTIATIONS OR IMPLICIT NEGOTIATIONS ABOUT PUNISHMENT OR 18 CHARGING OR SENTENCING OR BEING ABLE TO GO HOME VERSUS NOT 19 GO HOME, WHERE THE IMPLICATION OR EXPLICIT TECHNIQUE IS TO 20 GET THE SUSPECT TO BELIEVE THEY'RE GOING TO RECEIVE SOME 21 KIND OF POLICE OR PROSECUTORIAL OR JUDICIAL LENIENCY OR 22 LIGHTER CHARGE OR SENTENCE OR PUNISHMENT IN EXCHANGE FOR 23 COOPERATION. AND IF THEY FAIL TO COOPERATE, THEY FAIL TO 24 MAKE THE ADMISSION, THEY WILL CONVERSELY RECEIVE HIGHER 25 CHARGE OR LONGER SENTENCE OR HARSHER TREATMENT OR WON'T BE 26 ABLE TO GO HOME. OR THEY'RE ALLEGED CRIME WILL BE FRAMED 27 IN A WAY THAT WILL CAUSE PEOPLE TO BE MORE PUNITIVE WHEN 28 SENTENCING THEM OR MAKING DECISIONS ABOUT THEIR FUTURE. 38 1 Q IS THERE -- I UNDERSTAND IT'S ALONG A CONTINUA, 2 SORT OF THE SYSTEMIC INCENTIVE WILL BLEND INTO THE HIGH 3 END OF -- IS THERE A WAY TO DISTINGUISH THEM? SEEMS MORAL 4 APPEALS ARE FAIRLY EASY. I HAVE DIFFICULTY DISTINGUISHING 5 THE SECOND TWO. 6 A I THINK THEY BLUR INTO ONE ANOTHER, BUT I WOULD 7 SAY THE DISTINCTION IS THE HIGH END INCENTIVE, THE 8 TECHNIQUES ARE REALLY ABOUT A DEAL ON THE TABLE. AND SO 9 THE SYSTEMIC APPEALS ARE TO FOCUS THE SUSPECT ON THEIR 10 PART OF THE JUSTICE CRIMINAL SYSTEM AND BENEFIT TO ONE ACT 11 OR ANOTHER, BUT IT'S NOT REALLY. YOU GET THE IDEA THERE'S 12 A DEAL ON THE TABLE AND IF YOU TAKE -- IF YOU CONFESS, YOU 13 GET THE BENEFITS OF THE DEAL. IF YOU DON'T, YOU DON'T GET 14 THE BENEFITS OF THE DEAL. 15 AND THAT'S THE DISTINCTION. THE HIGH END 16 INCENTIVES ARE ABOUT IMPLICIT OR EXPLICIT DEALMAKING AND 17 TANGIBLE BENEFITS IN TERMS OF MORE OR LESS PUNISHMENT OR 18 HIGHER OR LOWER CHARGING OR BEING ABLE TO GO HOME AND NOT 19 BEING ABLE TO GO HOME, BEING FREE VERSUS BEING DETAINED. 20 WHERE THE SYSTEMIC INDUCEMENTS ARE GENERALLY FOCUSING A 21 PERSON GENERALLY ON THE CRIMINAL JUSTICE SYSTEM. 22 Q ARE ALL SYSTEMIC INCENTIVES -- ALL OF THOSE BE 23 CONSIDERED COERCIVE? 24 A NO. TYPICALLY NOT UNLESS THEY COMMUNICATE THE 25 MESSAGE THAT THERE'S A PROMISE OR OF LENIENCY OR THREAT OF 26 HARM. TYPICALLY SYSTEMIC INDUCEMENTS ARE NOT. THEY'RE 27 VAGUELY STATED. THEY'RE NOT REGARDED AS COERCIVE. IT'S 28 WHEN WE'RE MOVED TO WHAT'S CALLED HIGH END INCENTIVES THE 39 1 IMPLICIT OR EXPLICIT NEGOTIATIONS OR HIGHER OR LOWER 2 CHARGING, HARSHER OR LESS HARSH PUNISHMENT, MORE OR LESS 3 SENTENCING, FREEDOM VERSUS CONTINUED DETENTION. THAT'S 4 WHAT RESEARCHERS TYPICALLY REGARD AS COERCIVE, NOT 5 TYPICALLY THE SYSTEMIC INDUCEMENTS. 6 Q IS THERE A TECHNIQUE KNOWN AS A THEME OR 7 MINIMIZATION, MAXIMIZATION? 8 A A THEME IS A TECHNIQUE THAT COMES OUT THE REID 9 METHOD WHICH I DISCUSSED EARLIER. IT'S CENTRAL TO ALL 10 POLICE INTERROGATION. AND WHAT IT MEANS IS INVENTING A 11 SCENARIO TO JUSTIFY OR EXCUSE THE ACTION. AND SO WHAT 12 POLICE DO AS PART OF INTERROGATION, THEY PORTRAY A 13 PARTICULAR EVENT, WHETHER IT'S A ROBBERY OR EMBEZZLEMENT 14 OR BURGLARY OR ARSON, IN WAYS THAT ARE -- EITHER MINIMIZE 15 THE SUSPECT'S CULPABILITY OR MAKE IT APPEAR LESS SERIOUS. 16 AND THAT'S WHAT THEME IS AND A VERY COMMON TECHNIQUE THAT 17 POLICE USE. AND IT'S ESSENTIALLY A KIND OF INDUCEMENT, 18 DEPENDING ON HOW THEY USE IT, WHAT THEY USE TO IMPLORE THE 19 SUSPECT TO CONFESS, TO MAKE THE SUSPECT EITHER THINK THAT 20 THERE AREN'T VERY SERIOUS CONSEQUENCES TO CONFESS, OR IF 21 THE SUSPECT IS BETTER OFF TO CONFESS AS OPPOSED TO DENYING 22 THE ACCUSATION. 23 Q IS THE USE OF THE THEME TECHNIQUE -- THAT'S 24 SOMETHING THAT IS REGARDED BY THOSE IN THE FIELD OF STUDY 25 OF INTERROGATION PRACTICES AS COERCIVE? 26 A NOT NECESSARILY. MANY THEMES -- IN FACT MOST 27 THEMES I'VE SEEN ARE NOT COERCIVE. IT WOULD BE COERCIVE 28 IF IT SENT A MESSAGE, IF IT COMMUNICATED TO THE SUSPECT 40 1 THAT HE WILL RECEIVE A DEAL, A BENEFIT, LOWER CHARGE, 2 LOWER SENTENCE, LOWER PUNISHMENT IN EXCHANGE; AND THEN IF 3 HE FAILS TO CONFESS, A HARSHER PUNISH, HIGHER CHARGE, 4 LENGTHIER SENTENCE, DETENTION AS OPPOSED TO FREEDOM. WHEN 5 IT COMMUNICATES EITHER IMPLICITLY OR EXPLICITLY THAT 6 MESSAGE OF LENIENCY OFFER OR HARSHER TREATMENT THAT 7 RESEARCHERS REGARD IT TO BE COERCIVE. 8 Q THEME MIGHT FALL INTO SYSTEMIC AREA OF HIGH END, 9 DEPENDING ON HOW IT'S USED? 10 A IT DOES FALL INTO THE LOWER END, THERE IS A THEME 11 ABOUT YOU'LL FEEL BETTER BECAUSE GOD WILL FORGIVE YOU AND 12 GET THIS OFF YOUR CHEST AND PEOPLE WILL UNDERSTAND. SO IT 13 COULD BE ANYWHERE ALONG THE CONTINUA THAT I DISCUSSED 14 EARLIER OF INDUCEMENTS TO CONFESSION. 15 Q NOW, IS THERE ANY DISPUTE IN YOUR AREA OF 16 STUDIES, THE SCHOLARS IN THAT AREA, IS THERE ANY DISPUTE 17 AMONG THEM THAT THE HIGH END INCENTIVES THAT ARE OFFERED 18 DURING INTERROGATION RESULT IN COERCED CONFESSIONS? 19 A NO. HIGH END INDUCEMENTS ARE REGARDED AS 20 COERCIVE, PSYCHOLOGICALLY COERCIVE. 21 Q I UNDERSTAND. LET'S TALK ABOUT THE THEME IS 22 PROBABLY THE TECHNIQUE THAT IS MOST GERMANE TO WHAT WE'RE 23 TALKING ABOUT TODAY, BUT IS THERE -- ARE THERE OTHER 24 TECHNIQUES ASIDE FROM A THEME THAT ARE USED IN THE HIGH 25 END INCENTIVE CATEGORY? 26 A THERE MIGHT BE EXPLICIT PROMISES OR EXPLICIT 27 THREATS OR EXPLICIT DEALMAKING GOING ON. ESSENTIALLY BE 28 THE THING THAT LEADS A SUSPECT TO THINK THAT HE'S GOING TO 41 1 RECEIVE MORE OR LESS PUNISHMENT. 2 Q NOW, IF YOU HAVE A SITUATION OR A CASE IN WHICH 3 THERE IS MORE THAN ONE DIFFERENT INTERROGATION TECHNIQUE 4 USED OR COERCIVE TECHNIQUE USED, IS THAT GOING TO HAVE AN 5 ADDITIVE EFFECT OR WHAT KIND OF EFFECT, IF THERE'S 6 REPEATED USE OF COERCIVE TACTICS? 7 A PROBABLY HAVE A CUMULATIVE EFFECT ESPECIALLY THE 8 LONGER THE INTERROGATION. INTERROGATION IS KIND OF 9 GRADUAL AND INCREMENTAL, AND SOMETIMES VERY LONG PROCESS 10 WHERE WHAT HAPPENS IN AN EARLIER PART OF THE INTERROGATION 11 OR LATER PART MAY BUILD ON SOMETHING THAT HAPPENED 12 EARLIER. SO IT IS KEY IF THE LONGER IT GOES AND THE MORE 13 PARTICULAR TECHNIQUES, ESPECIALLY IF THEY'RE COERCIVE 14 TECHNIQUES OR OVERBEARING TECHNIQUES, ARE REPEATED. 15 Q CAN YOU HAVE -- CAN YOU HAVE A COERCED CONFESSION 16 IN A SITUATION WHERE SORT OF MORE MILD FORMS OF COERCION 17 ARE USED BUT THEY'RE USED IN SERIES, PILED ONE UPON 18 ANOTHER? WILL THAT GET YOU TO A STATE OF COERCED 19 CONFESSION OR NOT? 20 A THAT COULD, YES. 21 Q AND IF YOU USE THE SAME COERCIVE TECHNIQUE AND 22 YOU REPEAT IT OVER AND OVER AGAIN IN AN INTERROGATION, IS 23 THAT GOING TO HAVE A CUMULATIVE EFFECT OR IS THAT GOING TO 24 HAVE A SYNERGISTIC EFFECT? 25 A IF THE SUSPECT UNDERSTANDS IT, IT SHOULD HAVE A 26 CUMULATIVE EFFECT. A LOT OF INTERROGATION IS ABOUT 27 REPETITION, NON-COERCIVE INTERROGATION, REPETITION, 28 AGGRESSIVENESS, SOMETIMES COERCIVE TECHNIQUES ARE REPEATED 42 1 OR REUSED IN COMBINATION. 2 Q AND IS THE REASON FOR THE REPETITION SOMETIMES TO 3 MAKE SURE THAT THE SUSPECT UNDERSTANDS THE DEAL BEING 4 OFFERED? 5 A IN TERMS OF HIGH END INDUCEMENT, TYPICALLY YEAH, 6 THE UNDERSTANDING THE DEAL AND GRAVITY OF THE SITUATION. 7 AND OFTENTIMES THE CONTEXT OF THAT IS IF YOU DON'T GO FOR 8 THIS DEAL OR FRAMING OF HOW I, THE INTERROGATOR, I'M 9 SAYING THIS OCCURRED WHICH HAS THE BENEFIT OF LESS 10 PUNISHMENT OR IT ALLOWS YOU TO BE FREE AND GO HOME. IF 11 YOU DON'T GO FOR THAT AND MAKE THE ADMISSION, EVERYBODY 12 ELSE IS GOING TO THINK THIS, PARTICULARLY PEOPLE THAT HAVE 13 GOT POWER AND YOU'RE GOING TO GET ARRESTED AND CHARGED AND 14 WHATNOT. 15 Q NOW, LET'S TALK ABOUT THIS PARTICULAR CASE, THE 16 CASE OF JOHANN SCHMIDT. CAN YOU TELL ME WHAT MATERIALS 17 YOU REVIEWED IN PREPARATION FOR YOUR TESTIMONY HERE TODAY? 18 A I REVIEWED A NUMBER OF MATERIALS, INCLUDING 19 POLICE REPORTS, NOTES AND QUESTIONS THAT WERE WRITTEN OUT 20 FROM THE POLICE REPORTS, THE CHARGING INFORMATION, THE 21 INTERVIEWS OF AMY ANDREWS AND INTERROGATION. THE 22 INTERROGATION, TWO VIDEOTAPES, INTERROGATION OF JOHANN 23 SCHMIDT, VIDEOS OF CRIME SCENE WALK-THROUGHS BY BOTH OF 24 THEM. THE VIDEO OF DR. PODBOY, AND THEN ALSO THE REPORT 25 OF DR. PODBOY. AND I THINK THAT'S IT. 26 Q SO FOCUSING YOUR ATTENTION ON THE INTERROGATION 27 WITH DEPUTY POMA AND FLETCHER, DID YOU REVIEW BOTH THE 28 VIDEOTAPE AND THE TRANSCRIPT OF THAT? 43 1 A CORRECT, TOGETHER. SO I WATCHED THE VIDEOTAPES 2 AS I WAS REVIEWING THE TRANSCRIPT AND FOLLOWING ALONG AND 3 THEN SUBSEQUENT REVIEW OF THE TRANSCRIPT BY ITSELF. 4 Q IS THERE ANY -- OF ALL THE THINGS THAT YOU'VE 5 REVIEWED IN PREPARATION FOR YOUR TESTIMONY, IS THERE ANY 6 ONE THING THAT REALLY STANDS OUT TO YOU AS THE PRIMARY 7 SOURCE THAT YOU RELY ON FOR YOUR OPINIONS? 8 A IT WOULD BE THE INTERROGATION TRANSCRIPT. THAT'S 9 PRIMARILY WHAT I RELY ON. FORTUNATELY IN THIS CASE, 10 THERE'S A RECORD. THERE'S AN OBJECTIVE RECORD OF THE 11 INTERROGATION THAT WENT ON AND SO THERE'S NO NEED FOR ME 12 TO TRY TO RECONSTRUCT THAT RECORD. AND THIS IS WHAT -- 13 THIS IS WHERE I IDENTIFY THE TECHNIQUES AND BASE MY 14 JUDGMENT FOR WHATEVER CONCLUSIONS I COME TO ABOUT ANY 15 QUESTION THAT I'M ASKING ABOUT THE INTERROGATION. 16 Q I'M ASSUMING IT'S GOING TO BE EASIER FOR YOU IF 17 WE GO THROUGH THIS TO USE, INSTEAD OF THE VIDEOTAPE, USE 18 THE TRANSCRIPT; IS THAT RIGHT? 19 A CORRECT. 20 Q AND YOU HAVE THAT WITH YOU THERE? 21 A CORRECT. 22 THE COURT: WE'RE NOW APPROACHING THE NOON HOUR. 23 MAYBE THIS WOULD BE A GOOD TIME TO TAKE THE LUNCH TIME. 24 MR. J. PETERSEN: I THINK IT WOULD BE A VERY GOOD 25 TIME. 26 THE COURT: THANK YOU, SIR. YOU CAN STEP DOWN. 27 WHY DON'T WE RECONVENE AT 1:30 THIS AFTERNOON. 28 WE'LL BE IN RECESS. 44 1 (RECESS TAKEN FROM 11:59 A.M. TO 1:37 P.M.) 2 THE COURT: WE'RE BACK ON THE RECORD IN PEOPLE 3 VERSUS SCHMIDT. MR. SCHMIDT IS PRESENT. ALL COUNSEL ARE 4 PRESENT. WITNESS HAS RESUMED THE STAND. 5 CONTINUING WITH DIRECT. 6 MR. J. PETERSEN: THANK YOU, YOUR HONOR. I THINK 7 WE'RE READY AT THIS POINT TO -- I'M GOING TO OFFER THE 8 C.V. INTO EVIDENCE. I THINK CLERK HAS THAT. 9 THE CLERK: EXHIBIT A MARKED AS EVIDENCE. 10 THE COURT: IS THE MOTION -- 11 MR. J. PETERSEN: I DIDN'T HEAR WHETHER OR NOT 12 THERE WAS GOING TO BE OBJECTION. I DON'T KNOW IF 13 MR. FAULDER HEARD WHAT'S GOING ON. I WAS OFFERING THIS 14 INTO EVIDENCE. 15 MR. FAULDER: I HEARD. THERE'S NO OBJECTION, 16 YOUR HONOR. THANK YOU. 17 THE COURT: IT WILL BE RECEIVED. 18 MR. J. PETERSEN: MAY I GIVE THIS TO YOU NOW? 19 THE COURT: YES. 20 (EXHIBIT A WAS RECEIVED IN 21 EVIDENCE.) 22 Q (BY MR. J. PETERSEN) LET'S GET DOWN TO BUSINESS 23 AND TALK ABOUT THIS CASE, WHAT YOU DID IN THIS CASE. 24 WE'VE TALKED ABOUT THREE DIFFERENT LEVELS ALONG A 25 CONTINUA OF TECHNIQUES THAT CAN BE USED BY LAW 26 ENFORCEMENT, STARTING WITH MORAL APPEALS AND HIGH END 27 INDUCEMENTS. DID YOU FIND ANYTHING LIKE THAT IN THIS 28 CASE? 45 1 A YES. 2 Q AND IS THERE -- I THINK PROBABLY THE EASIEST WAY 3 IS TO GO THROUGH THE TRANSCRIPT. AND WHEN I SAY 4 TRANSCRIPT, I MEAN THE TRANSCRIPT OF THE INTERVIEW OF 5 JOHANN SCHMIDT BY DETECTIVES POMA AND FLETCHER. AND DO 6 YOU HAVE THAT IN FRONT OF YOU? 7 A THERE ARE TWO TRANSCRIPTS. YES, I HAVE THEM BOTH 8 IN FRONT OF ME. 9 Q AND WHAT PAGE SHOULD WE START WITH? WHAT WAS THE 10 FIRST PAGE YOU FOUND SOMETHING NOTEWORTHY ON? 11 A THERE'S A LOT OF DISCUSSION THROUGHOUT THE FIRST 12 INTERROGATION TRANSCRIPT ABOUT EVIDENCE ON MR. SCHMIDT AND 13 HOW THAT EVIDENCE GOT ON MR. SCHMIDT AND A DISPUTE THAT HE 14 SAYS HE HAD WITH SOMEBODY, DESCRIBED IN VERY VAGUE TERMS 15 WITH A PERSON WHO'S UNNAMED. 16 BUT IN TERMS OF THE INDUCEMENTS THAT I WAS 17 TALKING ABOUT AND YOU ASKED ME ABOUT, I THINK WHERE THE 18 PLACE TO REALLY BEGINNING IS THE SECOND INTERROGATION 19 TRANSCRIPT AROUND PAGE ELEVEN. ALTHOUGH PRIOR TO PAGE 20 LEVER, THEY'RE QUESTIONING ABOUT BLOOD ON PANTS, BLOOD ON 21 HIM, FINGERPRINTS ON THE KNIFE. THEY'RE CLEARLY 22 SUGGESTING OR CONFRONTING HIM WITH EVIDENCE THAT SUGGESTS 23 HE'S INVOLVED IN A CRIME. 24 IT'S REALLY AROUND PAGE ELEVEN WHEN THEY TELL HIM 25 ON LINE 16 OR 17 THAT HE MUST BE UNLUCKIEST PERSON IN THE 26 WORLD THAT THEY -- THAT THE INTERROGATION PROPER SO TO 27 SPEAK BEGINS, WHERE THEY TELL HIM THAT HE TOOK A CAR FROM 28 A LADY THAT'S BEEN KILLED. AND THE INCENTIVE -- THE 46 1 APPEALS OR INDUCEMENTS THAT I TALK ABOUT, I MENTIONED 2 BEFORE LUNCH, REALLY BEGIN ON PAGE TWELVE, THE BOTTOM OF 3 PAGE 12, LINE 26 AND 27, WHERE THEY SAY "JOHANN, I THINK 4 YOU NEED TO HELP YOURSELF OUT." AND THEN CONTINUING ONTO 5 PAGE 13, "IF SHE CAME AT YOU AND YOU JUST DEFENDING 6 YOURSELF, I NEED TO KNOW THAT; BUT YOU'RE SITTING THERE 7 DRIVING AROUND A LADY'S CAR THAT WAS MURDERED. OKAY? IF 8 IT HAPPENED -- IF IT WAS A SELF-DEFENSE TYPE THING, THEN 9 LET ME KNOW." 10 THAT IS REALLY THE FIRST SIGNIFICANT POINT IN MY 11 ANALYSIS OF THIS. 12 Q OKAY. NOW, LET ME SORT OF SET THE STAGE, IF I 13 CAN, A LITTLE BIT. THE FIRST TRANSCRIPT, IS IT CORRECT TO 14 SAY THAT THERE IS SORT OF PART OF THE INTERROGATION THAT 15 YOU WOULD DESCRIBE AS TRYING TO BUILD THE FEELING OF 16 HOPELESSNESS IN MR. SCHMIDT, THAT HE'S CAUGHT, NO WAY OUT 17 AND CONFRONT WITH -- 18 MR. FAULDER: OBJECTION. THAT'S LEADING. 19 THE COURT: IT'S WHAT? 20 MR. FAULDER: IT'S LEADING. WITH AN EXPERT 21 THAT'S LEADING ON FACTS RATHER THAN A CONCLUSION OR AN 22 AREA OF EXPERTISE. 23 MR. J. PETERSEN: I'M HAPPY TO REPHRASE IT IF IT 24 BOTHERS MR. FAULDER. 25 THE COURT: ALL RIGHT. 26 Q (BY MR. J. PETERSEN) THE FIRST TAPE, IS THE 27 INTERROGATION ON THE FIRST TAPE TYPICAL INTERROGATION THAT 28 YOU WOULD SEE AS PART OF AN EFFORT TO BUILD A SENSE OF 47 1 HOPELESSNESS IN THE INTERROGATEE? 2 A IT'S A LITTLE BIT MORE INDIRECT THAN THIS 3 INTERROGATION THAT I'VE SEEN. THEY ARE ASKING HIM ABOUT 4 THIS EVIDENCE THAT APPEARS HIGHLY INCRIMINATING. AND HE'S 5 TELLING THE STORY ABOUT IT AND YOU DON'T GET -- I DON'T 6 GET THE SENSE THAT THEY REALLY SORT OF POUNCE UNTIL THE 7 SECOND INTERROGATION; BUT I THINK THEY ARE SETTING THE 8 STAGE BY GETTING THESE VARIOUS PIECES OF EVIDENCE THAT ON 9 THEIR FACE SEEM HIGHLY INCRIMINATING. 10 Q AND IN THE FIRST TAPE, IS IT -- IS MR. SCHMIDT 11 CONFRONTED WITH THE FACT THAT HE'S GOT BLOOD ON HIS PANTS? 12 A THEY ASK HIM, YES. 13 Q AND ON HIS HANDS? 14 A HE'S GOT A CUT ON HIS HAND, BLOOD ON HIM, BLOOD 15 ON HIS HANDS, YEAH. 16 Q ALSO HE'S IN SOMEONE ELSE'S CAR? 17 A I BELIEVE SO. 18 Q AND DOES MR. SCHMIDT HAVE AN EXPLANATION THAT HE 19 HAD GOTTEN INTO -- I FORGET THE WORD HE USED -- BUT INTO 20 SOME SORT OF DISAGREEMENT WITH AN OLD HIGH SCHOOL FRIEND 21 IN EXPLANATION FOR THE CONDITION OF HIS HANDS AND PANTS? 22 MR. FAULDER: AGAIN, OBJECTION. IT'S LEADING. 23 THE DEFENSE ATTORNEY IS TESTIFYING RATHER THAN ASKING A 24 QUESTION. 25 THE COURT: BUT HE CAN WITH AN EXPERT. 26 MR. FAULDER: HE CAN LEAD TO A CERTAIN EXTENT, 27 BUT THIS IS GOING BEYOND WHAT I THINK AN EXPERT IS 28 ALLOWED -- HOW AN EXPERT IS TO BE LED. HE'S SUMMARIZING 48 1 TESTIMONY THAT HAS NOT BEEN SUBMITTED INTO EVIDENCE. 2 MR. J. PETERSEN: YOUR HONOR, THE COURT HAS THE 3 TAPE. 4 THE COURT: THE OBJECTION'S OVERRULED. 5 THE WITNESS: MY RECOLLECTION IS THAT THE -- HE 6 USES THE WORD DISPUTE IN THE FIRST INTERROGATION THAT HE 7 HAD, AND THAT THE REFERENCE TO HIGH SCHOOL FRIEND WAS IN A 8 POLICE REPORT AND THAT'S HIS EXPLANATION FOR -- AT THIS 9 POINT IN THE INTERROGATION, THE FIRST VIDEOTAPE -- HOW HE 10 HAS THIS BLOOD ON HIM AND THIS CUT. 11 Q (BY MR. J. PETERSEN) DID YOU REVIEW AS PART OF 12 YOUR REVIEW OF MATERIALS IN THIS CASE A REPORT BY AN 13 OFFICER HEIKEN IN WHICH SCHMIDT IS REPORTED TO HAVE TOLD 14 THE OFFICER WHO STOPPED THE CAR THAT MR. SCHMIDT WAS 15 DRIVING, MR. SCHMIDT SAID -- QUOTE, "SCHMIDT ADVISED ME 16 THAT HE HAD GOTTEN THE BLOOD FROM THE ALTERCATION WITH A 17 HIGH SCHOOL FRIEND OF HIS"? 18 MR. FAULDER: YOUR HONOR, IT'S THE SAME 19 OBJECTION. HE'S READING TESTIMONY INTO THE RECORD -- HE'S 20 READING EVIDENCE INTO RECORD. THIS POLICE REPORT IS NOT 21 IN EVIDENCE. AND IF HE'S ASKING THE WITNESS IF HE READ 22 THE POLICE REPORT, THAT'S ONE THING; BUT TO READ IT INTO 23 THE RECORD AS IF IT'S EVIDENCE IS INAPPROPRIATE. 24 MR. J. PETERSEN: I CAN READ IT INTO -- I'M NOT 25 READING IT INTO EVIDENCE. WHAT I'M TRYING TO DO IS READ 26 THE RELEVANT PORTION SO I CAN REMIND THE DOCTOR AND SEE IF 27 IT REFRESHES RECOLLECTION AS TO WHETHER HE REVIEWED THIS 28 REPORT. 49 1 THE COURT: IF THAT'S WHAT IT'S BEING USED FOR -- 2 MR. FAULDER: THERE'S NO STATEMENT FROM THIS 3 WITNESS THAT HE DOES NOT RECOLLECT, THAT HIS RECOLLECTION 4 NEEDS TO BE REFRESHED. IT'S IMPROPER REFRESHING OF 5 RECOLLECTION. 6 THE COURT: I'LL SUSTAIN THE OBJECTION. 7 MR. J. PETERSEN: OKAY. I'LL STEP BACK ONE 8 STEP. 9 Q (BY MR. J. PETERSEN) DO YOU RECALL THE OFFICER 10 HEIKEN REPORT DATED 7/7/01? 11 A I READ A NUMBER OF REPORTS THAT WAS PROVIDED, A 12 VERY THICK STACK. I DON'T RECALL THAT SPECIFICALLY. 13 Q SURE. AND DO YOU RECALL READING A REPORT, 14 WITHOUT SPECIFICALLY REFERRING TO THE NAME HEIKEN, IN 15 WHICH MR. SCHMIDT ADVISES AN OFFICER THAT HE GOT THE BLOOD 16 ON HIM FROM AN ALTERCATION WITH A HIGH SCHOOL FRIEND? 17 A I RECALL IT COMING UP LATER IN DISCUSSION, AND I 18 THINK IT I DID READ THAT REPORT; BUT I DON'T RECALL 19 SPECIFICALLY READING THAT REPORT. 20 MR. J. PETERSEN: YOUR HONOR, MAY I APPROACH TO 21 SHOW THE WITNESS THE REPORT? 22 THE COURT: YES. 23 MR. J. PETERSEN: IT MAY HELP REFRESH HIS 24 RECOLLECTION. I'M NOT SURE. 25 THE WITNESS: YES. OKAY. 26 Q (BY MR. J. PETERSEN) IS THAT SOMETHING YOU 27 REVIEWED? 28 A YES. 50 1 Q AND DOES THAT STATEMENT MADE TO OFFICER -- WELL, 2 I GUESS IT DOESN'T DO ANY GOOD TO USE THE NAMES -- TO THE 3 OFFICER THAT MADE THE STOP FIT RIGHT IN WITH THE STATEMENT 4 MADE A LITTLE LATER AT THE STATIONHOUSE WITH THE TWO 5 DETECTIVES ABOUT HAVING GOTTEN INTO AN ALTERCATION WITH 6 SOMEONE AND THAT'S HOW THE BLOOD GOT ON HIM? 7 A I BELIEVE SO, YES. 8 Q AND AT SOME POINT THEN WE MOVE TO TAPE TWO AND 9 THE TONE OF THE INTERROGATION CHANGES A BIT; DOES IT NOT? 10 MR. FAULDER: OBJECTION. LEADING. 11 THE COURT: WELL, ONCE AGAIN, HE CAN ASK LEADING 12 QUESTIONS. IT'S OVERRULED. 13 THE WITNESS: YEAH, I BELIEVE THEY BECOME MORE 14 DIRECT, LIKE I SAID, AROUND PAGE 11 WHEN THEY TELL HIM 15 HE'S THE UNLUCKIEST PERSON, THIS IS WHERE THEY BECOME MORE 16 DIRECTLY ACCUSATORIAL ABOUT HIS ROLE IN THIS CRIME. 17 Q (BY MR. J. PETERSEN) AND THEN WHAT IS THE NEXT 18 PAGE UPON WHICH YOU FOUND SOMETHING THAT -- SAID SOMETHING 19 TO YOU AS AN EXPERT ALONG INTERROGATION PRACTICES? 20 A WELL, THE -- WHAT I JUST REFERENCE ON BOTTOM OF 21 PAGE 12 AND TOP OF PAGE 13, WHAT YOU SEE IS A THEME OF YOU 22 NEED TO HELP YOURSELF OUT. I DISCUSSED THE THEMES 23 EARLIER. AND THEN THE APPEAL TO A -- WAS THIS JUST A 24 SELF-DEFENSE THING. AND THAT'S VERY SIGNIFICANT BECAUSE 25 THAT RECURS. AND SO WE SEE THIS AGAIN ON THE BOTTOM OF 26 PAGE 14 WHERE ONE OF THE INTERROGATING DETECTIVES BY THE 27 INITIALS OF DP SAYS ON LINE 25, "I'M JUST SAYING IF THERE 28 WAS SELF-DEFENSE AT THE HOUSE, HELP US OUT. IT'S TIME TO 51 1 START HELPING YOURSELF OUT." 2 RECALL I SAID EARLIER THAT THE SECOND PART OF THE 3 INTERROGATION IS ABOUT CONVINCING SOMEBODY THAT IT'S IN 4 THEIR SELF INTEREST TO CONFESS, THAT THEY'RE BETTER OFF IF 5 THEY CONFESS THAN IF THEY DENY. AND SO THERE'S A 6 TWO-PRONG APPROACH HERE. ONE IS TO SUGGEST HE NEEDS TO 7 HELP HIMSELF OUT, HE'S GOING TO BENEFIT IMPLICITLY. AND 8 THE OTHER IS TO SUGGEST THAT THIS ACT CAN BE PORTRAYED AS 9 SELF-DEFENSE WHICH WE THEN SEE AGAIN ON THE TOP OF THE 10 NEXT PAGE, PAGE 15, LINE THREE, "IF SOMETHING HAPPENED 11 THERE AND YOU WERE HAVING TO DEFEND YOURSELF AGAINST HER, 12 THEN LET US KNOW." EIGHT AND NINE, "I JUST WANT YOU TO 13 HELP YOURSELF OUT." FIFTEEN, "YOU HAD A DISAGREEMENT, SHE 14 CAME AT YOU. SHE HIT YOU AND, YOU KNOW, SLASHED HER A 15 COUPLE TIMES AND SHE DIED AS A RESULT AND THAT'S -- YOU 16 KNOW, YOU HAVE THE RIGHT TO DEFEND YOURSELF." 17 SO WE SEE BOTH OF THESE THEMES OR INDUCEMENTS 18 PLAYED OUT. WHAT'S GOING ON HERE IS CONSISTENT WITH WHAT 19 I TALKED ABOUT IN THE SECOND STAGE OF INTERROGATION. 20 FRAMING IT AS SELF-DEFENSE IS MINIMIZING THE CULPABILITY 21 OF THE DEFENDANT. THAT'S PART OF THE APPEAL OF THE 22 TECHNIQUE AND WHY IT MIGHT WORK. 23 Q IS THIS A FAIRLY COMMON TECHNIQUE TO SORT OF 24 RECAST THE ACT AS THE OFFICER BELIEVES IT REALLY OCCURRED 25 SO THAT HE CAN GET THE INTERROGATEE TO SEE, OR THE 26 INTERROGATEE TO AGREE TO THESE FACTS THAT WOULD IMPLY A 27 LESSER CULPABILITY? 28 A I DO -- YEAH, THIS IS NOT UNCOMMON. THE 52 1 SELF-DEFENSE THEME -- I MEAN THERE ARE OTHER MINIMIZATION 2 THEMES THAT ONE SEES SELF-DEFENSE IS ONE TYPE, 3 PARTICULARLY IN A MURDER CASE; BUT IT'S NOT AN UNCOMMON 4 TECHNIQUE OR EXAMPLE OF THAT TECHNIQUE. 5 Q WHAT'S THE NEXT PAGE THAT YOU FOUND TO BE 6 IMPORTANT TO YOU AS AN EXPERT IN THIS AREA? 7 A WELL, AGAIN, I'M FOCUSING ON THE INDUCEMENTS. 8 THERE IS A LOT OF DISCUSSION ABOUT THE EVIDENCE AGAINST 9 HIM; BUT AGAIN THE INDUCEMENTS ARE WHAT GO INTO MY 10 DETERMINATION OF WHETHER OR NOT SOMETHING WOULD BE 11 COERCIVE. AND HE SAYS AT THE TOP OF PAGE 24, "I'M JUST 12 TRYING TO FIGURE OUT IF IT'S SELF-DEFENSE. IF IT'S NOT 13 SELF-DEFENSE THEN" -- AND THE BOTTOM OF PAGE 25, "PEOPLE 14 CAN KILL IN SELF-DEFENSE AND PEOPLE CAN KILL OUT OF 15 ANGER", AND THEN THE TOP OF PAGE 26, "WELL, THAT'S WHAT 16 I'M SAYING. DID YOU GET THREATENED OR AGGRAVATED TODAY BY 17 CHRISTA AND SOMETHING HAPPENED?" 18 Q LET ME BACK YOU UP FOR A SECOND. ON PAGE 16, IS 19 THERE ANOTHER REFERENCE TO HELPING HIMSELF OUT? 20 A YEAH, PAGE 16, LINE 24 HE'S -- THE OFFICER WITH 21 THE INITIALS DP IS IMPLORING JOHANN TO HELP HIMSELF OUT. 22 HE JUST SAYS IT DIRECTLY. 23 Q NOW IS THE IMPLICATION THE OFFICER'S MAKING THAT 24 IF HE, BEING JOHANN, STATES THAT THIS WAS SELF-DEFENSE -- 25 IN OTHER WORDS, THE DECEDENT HAD ATTACKED HIM OR ASSAULTED 26 HIM AND HE WAS MERELY FENDING OFF THAT ATTACK, THAT THERE 27 WOULD BE NO PUNISHMENT? IS THAT THE WAY A THEME WORKS IN 28 THIS CASE? 53 1 A THE WAY A THEME IS SUPPOSED TO WORK IN THEORY IS 2 GIVE A SUSPECT A FACE-SAVING OUT. SUPPOSED TO MINIMIZE 3 THE -- MORE OR LESS THE IMPORTANCE OR SERIOUSNESS OF THE 4 CRIME IN THE SUSPECT'S MIND. IT'S NOT SUPPOSED TO CONVEY 5 A PROMISE OR SUGGESTION OF MORE LENIENT TREATMENT OR NO 6 CRIMINAL PUNISHMENT IF YOU ADMIT TO A CERTAIN VERSION OF 7 THE EVENTS. SO THERE IS A KIND OF MINIMIZATION GOING ON, 8 BUT THAT'S NOT THE WAY A PROPER THEME IS SUPPOSED TO WORK 9 IN TERMS OF MINIMIZING LEGAL CULPABILITY OR PROMISING OR 10 SUGGESTING LENIENCY. 11 Q WHEN YOU SAY THAT'S NOT THE WAY THINGS ARE 12 SUPPOSED TO WORK, WHAT YOU'RE SAYING IS THAT OFFICERS -- 13 IS WHAT YOU'RE SAYING IS OFFICERS ARE TRAINED TO USE 14 THEMES BUT TO USE THEM IN THE WAY THEME INCLUDES ONLY 15 MORAL ADVANTAGES OR IN WAYS THAT DO NOT INCLUDE WHAT WOULD 16 BE CALLED HIGH END INDUCEMENTS LIKE LESSER PUNISHMENT? 17 A CORRECT. THEY'RE TRAINED TO AVOID PROMISE OF 18 LENIENCY SO THEY'RE TRAINED TO USE THEMES THAT DON'T 19 COMMUNICATE LEGAL LENIENCY IF THE SUSPECT GOES -- IF THE 20 SUSPECT AGREES WITH THE THEME. 21 Q HOW DOES SELF-DEFENSE -- THE OFFICER'S SUGGESTING 22 WELL, IF IT'S SELF-DEFENSE, TELL ME, HOW DOES THAT CONVEY 23 TO MR. SCHMIDT THAT THERE'S GOING TO BE LESSER 24 CULPABILITY? 25 A WELL, TYPICALLY SELF-DEFENSE IS AN EXCUSE OR 26 JUSTIFICATION. AND THE IDEA BEHIND USING SELF-DEFENSE 27 THEME IS THAT THE PERSON WHO KILLED IN SELF-DEFENSE WAS 28 JUSTIFIED, THAT SELF-DEFENSE IS NOT A CRIME, IT'S A 54 1 JUSTIFIABLE OR EXCUSABLE ACT. AND THE IMPORTANT THING FOR 2 A PSYCHOLOGIST IN STUDYING THIS IS THE MESSAGE THAT'S 3 GETTING COMMUNICATED BY THE TECHNIQUE, WHETHER IT'S 4 LEGALLY ACCURATE OR NOT. AND WHAT THE SUSPECT WHO'S 5 RECEIVING THE MESSAGE IS UNDERSTANDING. 6 AND WHAT YOU SEE HERE IS THE KIND OF CONTRAST, 7 FOR EXAMPLE, PAGE 25, LINE 22, I THINK I READ THERE JUST A 8 MOMENT AGO PEOPLE CAN KILL IN SELF-DEFENSE AND PEOPLE CAN 9 KILL OUT OF ANGER, SO TWO TYPES OF KILLING. AND THEN TOP 10 OF NEXT PAGE, YOU GET THREATENED OR AGGRAVATED. 11 Q WHEN YOU SAY -- ARE WE ON 26 NOW? 12 A 26, LINE ONE. YEAH. SO SELF-DEFENSE THE 13 SELF-DEFENSE THEME IS TYPICALLY WHEN IT'S USED, CONTRASTED 14 WITH A DIFFERENT VERSION OF THE KILLING AND IT'S CONVEYED 15 AS A RIGHTEOUS OR EXCUSABLE OR UNDERSTANDABLE ACT THAT MAY 16 NOT CARRY ANY PUNISHMENT ON THE ONE HAND. AND IT'S 17 TYPICALLY CONTRASTED WITH AGGRAVATED OR FIRST DEGREE OR 18 PREMEDITATED KILLING. 19 AND SO THE MESSAGE THAT'S OFTEN COMMUNICATED WITH 20 THIS TECHNIQUE IS THAT IF YOU ADOPTED THE SELF-DEFENSE 21 THEME, YOU'LL BE BETTER OFF, YOU MAY NOT GET PUNISHED, YOU 22 MAY BE ABLE TO GO HOME, YOU MAY GET A REDUCTION IN CHARGE, 23 YOU MAY NOT GET CHARGED AT ALL. IN MOST CIRCUMSTANCES 24 SELF-DEFENSE WOULD NOT BE A CRIME, IT WOULD NOT RESULT IN 25 A CRIMINAL CHARGE, SINCE UNDER LAW IT'S AN EXCUSE OR 26 JUSTIFICATION. IN MOST CIRCUMSTANCES. 27 Q NOW UP TO PAGE 25 THERE IS TALK ABOUT 28 SELF-DEFENSE, BUT IS 25 THE FIRST PAGE WHERE THE 55 1 SELF-DEFENSE THEME IS CONTRASTED WITH ANOTHER THEME, 2 SAYING -- SAY THE BOTTOM -- LOOK AT LINE 22 AND DOWN. 3 A THAT'S WHERE HE SAYS PEOPLE, PEOPLE CAN KILL IN 4 SELF-DEFENSE AND PEOPLE CAN KILL OUT OF ANGER. 5 Q SO WE'VE GOT -- WOULD IT BE ACCURATE TO SAY WE'VE 6 GOT SELF-DEFENSE THEME CONTRASTED WITH KILLING IN ANGER 7 WHAT WOULD BE A MURDER THEME? 8 A I DON'T THINK IT'S FULLY DEVELOPED THERE, BUT I 9 THINK THAT'S ACCURATE. I THINK THAT YOU'RE RIGHT. 10 EARLIER HE'S MENTIONED SELF-DEFENSE, HAS A RIGHT TO 11 PROTECT HIMSELF; BUT IT'S NOT CREDITED EXPLICITLY WITH A 12 DIFFERENT MOTIVE FOR KILLING. 13 Q SO WHEN WE GET UP TO PAGE 25 -- 14 A ACTUALLY, I WANT TO CORRECT MYSELF. ON PAGE 24, 15 LINE ONE, HE SAYS "I'M JUST TRYING TO FIGURE OUT IF THIS 16 IS SELF-DEFENSE. IF IT'S NOT SELF-DEFENSE" -- THEN HE 17 IMPLIES THAT THERE'S AN ALTERNATIVE FRAMING OF IT, SO HE 18 DOESN'T EXPLICITLY STATE IT, THE INTERROGATOR WITH THE 19 INITIALS DP. 20 Q AND THAT'S DEVELOPED MORE ON 25? 21 A CORRECT, LINES 22 AND 23. 22 Q SO THAT POINT THE OFFICER WHO DID NOT STATE WHAT 23 ALTERNATIVE THEORY WOULD BE ON TOP OF PAGE 24, HE THEN 24 FILLS IN THE BLANK ON 25 AND TELLS OR RELATES TO 25 MR. SCHMIDT WHAT THAT ALTERNATIVE THEORY IS? 26 A OR AT LEAST AN ALTERNATIVE, YEAH, KILLING IN 27 SELF-DEFENSE VERSUS KILLING OUT OF ANGER. AND TOP OF THE 28 NEXT, GET THREATENED VERSUS BEING AGGRAVATED. 56 1 ACTUALLY, I TAKE THAT BACK. THAT'S -- THREATEN 2 OR AGGRAVATE IS THE SAME THING ON TOP OF PAGE 26. 3 Q PAGE 25 IS THERE ANY INDICATION THAT -- AS TO 4 WHETHER OR NOT MR. SCHMIDT IS SORT OF PICKING UP ON THE 5 DICHOTOMY BEING LAID OUT BY THE OFFICER BETWEEN A KILLING 6 OF ANGER, A MURDER VERSUS SELF-DEFENSE? 7 A IT WOULD APPEAR THAT WAY, BECAUSE FOLLOWING THE 8 KILLING IN SELF-DEFENSE VERSUS KILLING IN ANGER REFERENCE 9 BY INTERROGATOR WITH THE INITIALS DP ON LINE 22 AND 10 MR. SCHMIDT APPEARS TO REPEAT THAT, 25 AND 26, "YES, 11 PEOPLE CAN KILL OUT OF ANGER AND PEOPLE CAN KILL OUT OF 12 SELF-DEFENSE IF THEY GET THREATENED OR IF SOMETHING" AND 13 IT'S "(INAUDIBLE) ANGRY." 14 Q SO ON 25 WE HAVE -- WELL, LET'S MOVE ON. SO ON 15 26, DO THE OFFICERS IN ANY WAY SORT OF EXPAND UPON THIS 16 SELF-DEFENSE THEORY AT THIS POINT OR WHAT'S GOING ON HERE 17 ON 26? YOU SPED THROUGH IT BEFORE AND YOU LOST ME IS WHAT 18 I'M SAYING. 19 A THE OFFICER FOLLOWS UP, DP ON TOP OF 26 WITH "DID 20 YOU GET THREATENED OR AGGRAVATED TODAY BY CHRISTA AND 21 SOMETHING HAPPENED?" MR. SCHMIDT ASKED A QUESTION. THE 22 OFFICER WITH INITIALS DP SAYS HE'S THE LUCKY ONE BECAUSE 23 HE DEFENDED HIMSELF BECAUSE HE CAME OUT ALIVE. 24 MR. SCHMIDT THEN ASKED THE OFFICER WHAT THE CONSEQUENCES 25 OF THAT ARE, AND THE OFFICER DP SAYS "IF IT'S JUSTIFIABLE, 26 THERE IS NO CONSEQUENCES." MR. SCHMIDT SAID, "OH, THERE'S 27 NO CONSEQUENCES?" THE OFFICER SAYS, "FOR JUST DEFENDING 28 YOURSELF? NO, THERE'S NOT." 57 1 Q IS THE THEME FAIRLY WELL-DEVELOPED AT THIS POINT 2 THAT MR. SCHMIDT IF HE WAS -- IF THE KILLING WAS IN 3 RESPONSE TO AN ATTACK BY THIS DECEDENT, THAT THERE WOULD 4 BE, IN THE WORDS OF THE OFFICER, NO CONSEQUENCES? 5 A I THINK THIS IS FAIRLY DIRECT. HE'S ESPECIALLY 6 SAYING IF YOU ADMIT TO SELF-DEFENSE, THERE ARE NO 7 CONSEQUENCE. ALTHOUGH HE'S PRESENTING IT ABSTRACTLY. IF 8 ONE ADMITS TO SELF-DEFENSE, IT'S JUSTIFIABLE, THERE'S NO 9 CONSEQUENCE. 10 Q NOW, OF COURSE, IN THIS CASE THAT WOULD BE 11 COMPLETELY UNTRUE BECAUSE OF FELONY MURDER RULE. I 12 UNDERSTAND THAT'S -- 13 MR. FAULDER: OBJECTION, YOUR HONOR. 14 THE COURT: OBJECTION BASED ON WHAT? 15 MR. FAULDER: WELL, HE'S TESTIFYING, FIRST OF 16 ALL. HE'S NOT ASKING THE WITNESS A QUESTION. HE'S 17 TESTIFYING. 18 MR. J. PETERSEN: YOUR HONOR, I THINK WE ALL KNOW 19 THAT THAT'S FELONY MURDER RULE. 20 THE COURT: IT'S OVERRULED. 21 THE WITNESS: I'M -- SO WAS THIS OVERRULED? 22 MR. J. PETERSEN: YES. 23 THE WITNESS: OKAY. YEAH, THAT MY UNDERSTANDING 24 OF THE LAW, THE ANSWER TO YOUR QUESTION WOULD BE YES. 25 Q (BY MR. J. PETERSEN) SO EVEN IF IT'S 26 SELF-DEFENSE, MR. SCHMIDT IS STILL ON THE LINE FOR FIRST 27 DEGREE MURDER? 28 MR. FAULDER: THIS WITNESS HAS NOT BEEN QUALIFIED 58 1 AS AN EXPERT IN FELONY MURDER RULE OR ANY OTHER LEGAL 2 THEORY. 3 MR. J. PETERSEN: HE'S GOT A J.D. FROM BOALT HALL 4 IN 1994. 5 MR. FAULDER: IT DOESN'T MAKE HIM AN EXPERT IN 6 CRIMINAL LAW AND HAS NOT BEEN OFFERED -- 7 MR. J. PETERSEN: I ASK THE COURT TAKE JUDICIAL 8 NOTICE OF THAT FACT. IT'S NOT BEYOND DISPUTE. IF A 9 KILLING OCCURRED DURING THE COURSE OF A BURGLARY, WHICH IS 10 WHAT IS ALLEGED, THERE IS NO WAY OUT THROUGH SELF-DEFENSE, 11 FOR SOMEONE WHO KILLS IN THE PROCESS OF THAT BURGLARY. 12 THE COURT: OBJECTION'S OVERRULED. 13 THE WITNESS: YES, MY UNDERSTANDING WOULD BE 14 BECAUSE OF THE FELONY MURDER RULE, IF YOU COMMIT A FELONY 15 AND THERE'S A DEATH AS A RESULT OR IN THE COMMISSION OF A 16 FELONY, YOU CAN BE CHARGED WITH FELONY MURDER. AND SO 17 ADMITTING TO SELF-DEFENSE WHERE AN INDIVIDUAL COMMITTED 18 ANOTHER -- COMMITTED A FELONY AND THERE'S A DEAD BODY WILL 19 NOT GET YOU OUT, WILL NOT LET THAT PERSON AVOID PUNISHMENT 20 FOR THAT, WHICH IS BEING SUGGESTED BY THE INTERROGATOR 21 HERE. 22 Q (BY MR. J. PETERSEN) WHAT'S ESSENTIALLY BEING 23 OFFERED OR BEING IMPLIED BY THE OFFICER IS THAT IF YOU -- 24 IF YOU, JOHANN, AGREED WITH OUR SELF-DEFENSE THEORY THAT 25 WE'RE OFFERING UP HERE, YOU'RE GOING TO -- THERE ARE GOING 26 TO BE NO CONSEQUENCES. OF COURSE, THAT'S ABSOLUTELY 27 UNTRUE BECAUSE THAT WOULD MAKE HIM -- IF HE DID CHOOSE TO 28 ADMIT TO THE THEORY BEING OFFERED BY THE INTERROGATOR, 59 1 THEN HE'S GUILTY OF MURDER ONE, RIGHT? IS THAT CORRECT? 2 A CERTAINLY, IT'S NOT TRUE. THERE ARE 3 CONSEQUENCES. AND IF HE DOES ADMIT TO THAT, I THINK HE 4 CAN BE CHARGED AND PROSECUTED FOR MURDER. CORRECT. 5 Q IF THOSE FACTS WERE TO BE PROVEN LATER? 6 A CORRECT. 7 Q ALL RIGHT. SO, LET ME SEE IF THERE WAS ANYTHING 8 ELSE I WANTED TO ASK YOU ABOUT ON 26. 9 IS THERE ANYTHING ON 27? 10 A WELL, I THINK ON 27 AT THE TOP THE INVESTIGATOR 11 DP SAYS YOU LOST US IN RESPONSE TO KIND OF A RAMBLING 12 RESPONSE BY MR. SCHMIDT AND TRIES TO BRING HIM BACK TO 13 WHAT THEY WERE DISCUSSING. AND ON LINE TEN, MR. SCHMIDT 14 SAYS "WHAT DOES THAT MAKE THAT PERSON? DOES THAT PERSON 15 THAT DEFENDED MAKE THAT A MURDERER?" 16 THAT'S BAD GRAMMAR OR BAD TRANSCRIPTS, BUT HE 17 APPEARS TO BE ASKING WHETHER SOMEBODY WHO KILLS IN 18 SELF-DEFENSE IS MURDER, GIVEN HE'S JUST BEEN TOLD ON THE 19 PREVIOUS PAGE THERE'S NO CONSEQUENCES. AND THEN THE 20 INVESTIGATOR DP SAYS, "YOU HAVE THE RIGHT TO DEFEND 21 YOURSELF." TO WHICH MR. SCHMIDT ASKS THE QUESTION MORE 22 DIRECTLY, "DOES THAT PERSON MAKE A MURDERER." "NO". SO 23 HE'S BEEN TOLD THAT IF YOU KILL IN SELF-DEFENSE, THAT 24 DOESN'T MAKE YOU A MURDERER. AND MR. SCHMIDT THEN 25 APPEARS, ALTHOUGH THERE'S AN INAUDIBLE MARK ON LINE 26 EIGHTEEN, TO ASK IF SOMEBODY WHO DEFENDS THEMSELVES, KILLS 27 IN SELF-DEFENSE GETS PRISON. AND INVESTIGATOR DP SAYS 28 "THERE ARE NO PUNISHMENTS IF YOU GET SELF-DEFENSE." 60 1 Q SO HERE WHAT WE SEE IS ON THE ONE HAND 2 SELF-DEFENSE SCENARIO BEING THAT MR. SCHMIDT, IF HE WAS 3 DEFENDING HIMSELF IN THE COURSE OF THIS ACT AND THAT'S HOW 4 THE DECEDENT WAS KILLED, WOULD NOT GO TO PRISON AND THERE 5 WOULD BE NO CONSEQUENCES; IS THAT RIGHT? 6 A THAT IS CORRECT. HE'S BEING TOLD THAT SOMEBODY 7 WHO KILLS IN SELF-DEFENSE IS NOT A MURDERER. HE'S BEING 8 TOLD HE HAS THE RIGHT TO DEFEND HIMSELF. HE'S BEING TOLD 9 THERE'S NO CONSEQUENCES. AND, FINALLY, I THINK THE MOST 10 BALD STATEMENTS IS LINE 19 HERE, "THERE ARE NO PUNISHMENTS 11 IF YOU GET SELF-DEFENSE." TO ME THE PLEDGE ALSO CLEARLY 12 SENDING, IF I ADOPT THE SELF-DEFENSE SCENARIO AND SAY I 13 DID IT IN SELF-DEFENSE, AS YOU THE INVESTIGATOR ARE 14 SUGGESTING, I WILL NOT BE PUNISHED. ESPECIALLY SINCE HE 15 JUST ASKED IF THERE WAS ANY PRISON TIME OR PRISON FOR A 16 PERSON WHO KILLS, DEFENDS HIMSELF KILLING IN 17 SELF-DEFENSE. SEEMS TO ME EXPLICITLY SUGGESTS THAT IF YOU 18 ADMIT TO THIS, YOU WILL NOT BE PUNISHED. THERE ARE NO 19 CONSEQUENCES. AND SEEMS TO ME TO BE A CLEAR SUGGESTION OR 20 PROMISE OF LENIENCY IN EXCHANGE FOR AN ADMISSION TO A 21 PARTICULAR SCENARIO, SCENARIO INVOLVING SELF-DEFENSE. 22 Q IS THIS A TACTIC THAT YOU WOULD DESCRIBE AS A 23 HIGH END INDUCEMENT OR SYSTEMIC INDUCEMENT OR LOW END 24 INDUCEMENT? 25 A I WOULD SAY THIS IS AT THE HIGH END. I WOULD SAY 26 THE INVESTIGATOR HERE IS CLEARLY COMMUNICATING THE KIND OF 27 DEAL -- TO SOME EXTENT IT'S IMPLICIT, BUT IT'S ALSO PRETTY 28 DIRECT IN THAT THERE ARE NO PUNISHMENTS IF YOU GET 61 1 SELF-DEFENSE. IF YOU ADMIT TO THIS KILLING IN 2 SELF-DEFENSE, NO CONSEQUENCES, NO PUNISHMENT. THE CLEAR 3 IMPLICATION IS YOU WILL GO HOME, YOU WILL NOT GET 4 ARRESTED, YOU WILL NOT GET CHARGED, YOU WILL NOT GET 5 PROSECUTED, YOU WILL NOT GET CONVICTED, NOT GET SENTENCED. 6 Q AND YOU WILL NOT GO TO PRISON? 7 A AND YOU WILL NOT GO TO PRISON. 8 Q AFTER THERE'S A STATEMENT BY ONE OF THE 9 OFFICERS. SO LINE FIFTEEN JOHANN SAYS SOMETHING ABOUT 10 SELF-DEFENSE FOR THAT PERSON UNDER THE SELF-DEFENSE 11 SCENARIO, THE OFFICER SAYS IF YOU'RE DEFENDING YOURSELF. 12 JOHANN SCHMIDT SAYS PRISON FOR THAT PERSON. OFFICER, 13 THERE ARE NO PUNISHMENTS IF YOU GET SELF-DEFENSE. JOHANN, 14 OKAY, BUT -- AND THEN THE OFFICER, THAT'S WHAT I'M TRYING 15 TO SAY. 16 SO CAN IT REALLY BE MORE CLEAR THAN THAT? 17 A THIS IS A PRETTY CLEAR STATEMENT OF IT. I THINK 18 IT'S BEEN DEVELOPED IN THE LAST -- FROM FIRST REFERENCE 19 ABOUT PAGE 13 TO 27, AND I THINK IT'S BEEN MORE DEVELOPED 20 EXPLICITLY BECAUSE THE DEFENDANT DOESN'T GO FOR IT ALL THE 21 WAY. HE'S ASKING FOR SPECIFIC QUESTIONS ABOUT PRISON AND 22 WHETHER SOMEBODY WHO KILLS IN SELF-DEFENSE IS A MURDERER. 23 IT GET DEVELOPED MORE EXPLICITLY. USUALLY IN MY 24 EXPERIENCE, THE TECHNIQUE IS NOT STATED THIS BALDLY WHEN 25 IT'S USED AS SELF-DEFENSE SCENARIO. 26 Q OFFICERS ARE TRAINED AND -- WHAT THEY'RE TRYING 27 TO DO IS OFFER VAGUE ENOUGH INDUCEMENTS SO THAT THEY WILL 28 NOT BE IN VIOLATION OF LAW, BUT ALSO GET THE SUSPECT TO 62 1 TELL THEM WHAT THEY THINK THE FACTS -- WHAT THE OFFICER -- 2 GET THEM TO AGREE WITH FACTS THE OFFICER BELIEVES TO BE 3 THE FACTS; IS THAT TRUE? 4 A I BELIEVE THAT'S TRUE. I BELIEVE THE OFFICERS, 5 IN GENERAL, WORK IN GOOD FAITH AND THEY WANT TO USE THE 6 TECHNIQUES THAT LAW PERMITS THEM, THAT THEY'RE TRAINED IN. 7 AND THEY DON'T WANT TO DO OR SAY ANYTHING THAT WOULD BE 8 INTERPRETED BY A COURT AS PROMISE OF LENIENCY OR THREAT. 9 SO I THINK SOMETIMES THEY OVERSTEP, BUT I DON'T BELIEVE 10 THEY INTENTIONALLY OVERSTEP. 11 Q AND WHEN -- IS IT COMMON IN YOUR EXPERIENCE 12 HAVING REVIEWED THOUSAND CASES INVOLVING INTERROGATIONS 13 THAT IF THE OFFICERS INITIAL VAGUE OFFERS OF LENIENCY THAT 14 MIGHT BE LEGAL ARE NOT UNDERSTOOD OR NOT -- YOU KNOW, THE 15 INTERROGATEE DOESN'T GO FOR THOSE, ADOPT THOSE AS THE 16 FACTS, DOES IT -- DOES THE OFFICER INVOLVED TEND TO MAKE 17 IT MORE AND MORE AND MORE EXPRESS BY INCREMENTS UNTIL THE 18 PERSON DOES UNDERSTAND AND/OR DOES GO FOR IT? 19 A THAT DOES HAPPEN IN MANY CASES, PARTICULARLY IN 20 MURDER CASES. IT DOESN'T HAPPEN IN ALL CASES. IT DEPENDS 21 ON A NUMBER OF THINGS, INCLUDING THE LENGTH OF TIME, THE 22 PRESSURE TO SOLVE THE CASE, THE PARTICULAR OFFICER 23 INVOLVED. BUT I HAVE SEEN THAT HAPPEN MANY TIMES, THAT 24 THE THEMES OR SCENARIOS WILL BE MADE MORE AND MORE 25 EXPLICIT, KIND OF EVOLUTION THAT GOES ON THROUGH THE 26 INTERROGATION. 27 Q AND THAT'S WHAT HAPPENS IN THIS CASE? 28 A YES. I THINK THAT DOES HAPPEN FROM PAGES 13 TO 63 1 PAGE 27. I THINK IT CONTINUES TO HAPPEN AFTER THAT AS 2 WELL WHERE -- 3 Q DIRECT ME TO A PAGE. ARE WE DONE WITH 27? IS 4 THERE ANYTHING ELSE THAT YOU FOUND NOTEWORTHY IN YOUR 5 EXPERTISE ON 27? 6 A I THINK 27 IS PERHAPS THE MOST BALD STATEMENT OR 7 CULMINATION OF THIS TECHNIQUE. NO PUNISHMENTS IF YOU GET 8 SELF-DEFENSE, HAVING JUST SAID NO CONSEQUENCES, I THINK IS 9 A CLEAR STATEMENT OF THE OFFER OF LENIENCY IF HE ADMITS TO 10 SELF-DEFENSE SCENARIO. BUT I THINK IT CONTINUES -- THAT 11 CONTRAST BETWEEN KILLING IN SELF-DEFENSE VERSUS NOT 12 KILLING IN SELF-DEFENSE CONTINUES ON PAGE 28. 13 Q IS THERE A PLACE ON 28 WHERE THE OFFICER RELATES 14 TO MR. SCHMIDT WHAT THE -- OR CONTRASTS I THINK WOULD BE A 15 BETTER WAY TO SAY IT -- PLACE ON 28 WHERE THERE'S A 16 CONTRAST BETWEEN ADOPTING SELF-DEFENSE OFFER ADOPTED BY 17 THE OFFICER AND NOT -- 18 A YES, IF YOU LOOK AT -- I WAS TRYING TO DO THAT 19 STARTING AT LINE 17 AND THEN GOING DOWN TO LINE 26, THE 20 OFFICER SEEMS TO BE SAYING IN THIS FROM LINE 17 TO 20. 21 Q IF COULD YOU READ THE LANGUAGE YOU'RE TALKING 22 ABOUT, IT WILL BE EASIER ON THE RECORD. 23 A LINE 17, "OKAY. INAUDIBLE, JOHANN, THAT'S WHAT 24 I'M SAYING. IF I DO ALL THAT AND I PROVE THAT YOU WERE IN 25 THAT HOUSE, THAT YOU SAT HERE AND SAY DENY, DENY, DENY, 26 YOU HAVE LIED TO ME AND NOT TOLD THE TRUTH AND SO THEN YOU 27 ARE A MURDERER. BUT YOU DID THIS AND YOU GUYS HAD AN 28 ARGUMENT." 64 1 AND JOHANN SAYS, "BUT I DIDN'T MURDER HER." THE 2 INVESTIGATOR SAYS -- NOW I THINK THERE'S ERROR IN THE 3 TRANSCRIPTS BECAUSE I HAVE IN MY NOTES "NO", BUT THE 4 TRANSCRIPT SAYS "YEAH". AND THEN AFTER THAT, "BUT IF YOU 5 GUYS GOT IN AN ARGUMENT AND SHE CAME AT YOU, THAT'S 6 SELF-DEFENSE." JOHANN SAYS "OKAY". AND INVESTIGATOR 7 SAYS, "OKAY. THEN YOU'RE NOT A MURDERER" 8 SO AGAIN HERE'S A MORE CLEAR STATEMENT OF THE 9 DICHOTOMY BETWEEN KILLING IN SELF-DEFENSE AND BEING A 10 MURDERER, WHEREAS THE PRIOR PAGES THERE WAS MORE EXPLICIT 11 STATEMENTS OF THE CONSEQUENCES OF BEING ON THE 12 SELF-DEFENSE SIDE OF THAT DICHOTOMY, THAT THERE WOULD NO 13 CONSEQUENCES, NO PUNISHMENT. ESSENTIALLY IMPLYING, AS I 14 SAID EARLIER, HE'D BE ABLE TO GO AND WOULDN'T GET 15 PUNISHED. 16 Q IS THERE A CLEAR EXPRESSION BY THE OFFICER HERE 17 THAT -- TO JOHANN, IF YOU DENY, THAT'S A LIE, YOU'RE A 18 MURDERER, IS THAT PRETTY CLEAR? 19 A YES. THERE'S TWO SCENARIOS. IF HE DENIES, 20 BECAUSE THE OFFICER IS SAYING LINE 18, I CAN PROVE YOU 21 WERE IN THE HOUSE, LINE 19, I CAN PROVE YOU LIED, IMPLYING 22 THAT IF YOU DENY KILLING IN SELF-DEFENSE, YOU'RE GOING TO 23 BE PERCEIVED AS, OR I CAN PROVE YOU IN COURT AS BEING A 24 MURDERER. 25 THE COURT: LET'S GO OFF THE RECORD FOR A 26 MOMENT. 27 (OFF THE RECORD.) 28 THE COURT: LET'S GO BACK ON THE RECORD. 65 1 Q (BY MR. J. PETERSEN) DR. LEO, IS THERE ANYTHING 2 ELSE ON 28 THAT WE NEED TO DISCUSS? 3 A I THINK WE'VE COVERED 28. 4 Q AND IS THERE SOMETHING ELSE ON 29? 5 A YES. AT THE TOP OF 29, MR. SCHMIDT ASKS "WHAT 6 DOES THAT PERSON GO THROUGH THEN? WHAT DOES THAT PERSON 7 AND THE OTHER PERSON GO THROUGH? THEY GET TO GO HOME JUST 8 LIKE THAT AND NOTHING HAPPENS?" I INTERPRET WHEN HE SAYS 9 THAT PERSON AND THE OTHER PERSON THAT ONE PERSON IS IN 10 SELF-DEFENSE SCENARIO AND THE OTHER PERSON IN THE MURDER 11 SCENARIO IS MADE EXPLICIT ON THE LAST LINE OF PAGE 28. 12 INVESTIGATOR SAYS WE'RE DOING AN INVESTIGATION. 13 MR. SCHMIDT AGAIN ASKED THE QUESTION WHAT HAPPENS TO THOSE 14 TWO PEOPLE AND THE INVESTIGATOR SAYS IF IT'S SELF-DEFENSE, 15 YOU GO HOME. AND AGAIN THIS IS VERY DIRECT AND IT'S VERY 16 SIGNIFICANT. THIS IS AN ILLUSTRATION IN THE WAY -- 17 CLASSIC ILLUSTRATION OF A HIGH END INDUCEMENT THROUGH A 18 SELF-DEFENSE SCENARIO WHERE HE'S BEING TOLD IF YOU ADMIT 19 TO SELF-DEFENSE SCENARIO, NOT ONLY ARE THERE NO 20 CONSEQUENCES, I DON'T GET PUNISHED, I GET TO GO HOME. IT 21 SEEMS TO BE CLEAR COMMUNICATION IF YOU ADMIT, YOU SAY I 22 DID IT IN SELF-DEFENSE, YOU GET POLICE, PROSECUTORIAL, 23 JUDICIAL AND CRIMINAL JUSTICE SYSTEM LENIENCY BECAUSE YOU 24 GO HOME, YOU DON'T GET PUNISHED, NO CONSEQUENCES. IT'S 25 ABOUT AS DIRECT AS ONE CAN GET WITH THIS TECHNIQUE. 26 Q AND ABOUT AS UNTRUE AS IT CAN GET UNDER THESE 27 TERMS AS WELL; WOULDN'T YOU AGREE? 28 MR. FAULDER: OBJECTION, YOUR HONOR. 66 1 THE COURT: SUSTAINED. 2 Q (BY MR. J. PETERSEN) IS THERE ANYTHING ELSE ON 3 29 THAT WE SHOULD DISCUSS? 4 A ON LINE EIGHT HE REPEATS THAT, DETECTIVE WITH 5 INITIALS DP, "IF IT IS SELF-DEFENSE, YOU HAVE THE RIGHT TO 6 PROTECT YOURSELF." REINFORCING THE IDEA THAT SELF-DEFENSE 7 IS JUSTIFIABLE, AS HE SAID EARLIER. 8 Q EVEN THOUGH SOMEBODY WHO IS COMMITTING A 9 BURGLARY, AS IT'S ALLEGED, WOULD NOT HAVE THAT RIGHT? 10 A EVEN THOUGH WHEN FELONY MURDER RULE APPLIES, 11 SELF-DEFENSE MAY NOT BE JUSTIFICATION OR AN EXCUSE TO A 12 CRIME, EVEN THOUGH IT TYPICALLY IS WHEN THERE ISN'T A 13 FELONY MURDER RULE, AS I UNDERSTAND IT. 14 THERE'S MORE MENTION ON THE BOTTOM OF PAGE 29 OF 15 THE SELF-DEFENSE THEME AS WELL, BUT I THINK IT'S RECYCLING 16 AND JUST REINFORCING WHAT HAS ALREADY BEEN SAID UP TO THAT 17 POINT. 18 THE COURT: LET'S GO OF THE RECORD FOR A MOMENT. 19 MY APOLOGIES. 20 (OFF THE RECORD.) 21 THE COURT: BACK ON THE RECORD IN PEOPLE VERSUS 22 SCHMIDT. MY APOLOGIES ONCE AGAIN. 23 Q (BY MR. J. PETERSEN) DOCTOR, IS THERE ANOTHER 24 PAGE WE SHOULD DISCUSS BEFORE WE CLOSE THE DISCUSSION? 25 A ON PAGE 33, LINE SIX AND SEVEN, THE INVESTIGATOR 26 DP, "SO -- AND IF THIS IS SELF-DEFENSE, JOHANN, THIS IS 27 THE TIME TO HELP YOURSELF OUT." I BELIEVE THAT'S THE LAST 28 EXAMPLE OF THE SELF-DEFENSE SCENARIO THAT I SEE BEFORE WE 67 1 GET THE FIRST ADMISSION. AND THAT TIES TOGETHER THE TWO 2 THEMES THAT STARTED I BELIEVE AROUND PAGE 12 OR 13 THAT I 3 FIRST MENTIONED. SO HELP YOURSELF OUT. IT'S IN YOUR BEST 4 INTEREST TO CONFESS IF THIS IS SELF-DEFENSE, NO 5 CONSEQUENCES, NO PUNISHMENT, YOU GET TO GO HOME. IT'S 6 YOUR RIGHT TO KILL IN SELF-DEFENSE. YOU HAVE THE RIGHT TO 7 PROTECT YOURSELF. SHE CAME AT YOU. 8 SO I THINK THAT TIES IT TOGETHER AND I THINK THAT 9 IS ESSENTIALLY THE INTERROGATION STRATEGY SO FAR AS 10 INDUCEMENTS GOING IN THE INTERROGATION, MOVING FROM DENIAL 11 TO ULTIMATELY ADMISSION. 12 Q IN THE SPECTRUM OF TACTIC THAT YOU SEE, EVEN THE 13 SPECTRUM OF COERCIVE TACTICS THAT YOU SEE, WHERE DOES THIS 14 TACTIC USED IN THIS CASE FALL IN THAT CONTINUUM? 15 A IT FALLS IN THE HIGH END CATEGORY BECAUSE I THINK 16 THE INVESTIGATOR HERE IS COMMUNICATING A DEAL THAT THERE 17 WILL BE NO PUNISHMENT IN EXCHANGE FOR AN ADMISSION TO A 18 SELF-DEFENSE SCENARIO. SO IT'S WHAT IN THE GENERAL 19 TESTIMONY CALL HIGH END INDUCEMENT. I THINK IT'S 20 PSYCHOLOGY, IMPROPER AND COERCIVE COMPARED TO OTHER 21 INTERROGATION WHERE I'VE SEEN THIS. IT'S PRETTY DIRECTLY 22 STATED. IT'S MORE IMPLYING IT THAN IT IS HERE. THIS IS 23 PRETTY BALD. IF IT'S SELF-DEFENSE, YOU GET TO GO HOME, NO 24 CONSEQUENCES, NO PUNISHMENT. IT'S A PRETTY BLUNT 25 STATEMENT OF ESSENTIALLY THE TERMS OF THE DEAL. 26 Q DO YOU HAVE A CONCLUSION THAT CAN YOU DRAW BASED 27 ON TECHNIQUE THAT YOU SEE USED HERE AS TO THE -- WHETHER 28 THE CONFESSION OBTAINED SHORTLY THEREAFTER, AFTER THE LAST 68 1 PAGE WE DISCUSSED, WAS COERCED? 2 A YES. IT WOULD BE MY OPINION, AS I SAY IN THE 3 REPORT, THAT THIS IS A COERCIVE INTERROGATION TECHNIQUE; 4 AND THE ADMISSION, FOR THE REASONS THAT I'VE ARTICULATED 5 BOTH IN THE REPORT AND MORE SPECIFICALLY HERE IN MY 6 TESTIMONY, THIS IS PSYCHOLOGICALLY COERCIVE AND IMPROPER 7 INTERROGATION TECHNIQUE THAT RESULTS IN INVOLUNTARY 8 ADMISSION. 9 Q AND IS THAT OPINION -- AGAIN, I KNOW WE'VE BEEN 10 THROUGH THIS. IS THAT OPINION BASED ON THE THOUSAND 11 INTERVIEWS INTERROGATIONS THAT YOU'VE REVIEWED AND ALL 12 YOUR CASE STUDY IN THIS AREA? 13 A IT WOULD BE BASED ON THE RESEARCH AND EXPERTISE 14 THAT I HAVE IN THIS AREA, BOTH AS A SCHOLAR AS WELL AS THE 15 TRAINING THAT I'VE TAKEN AND THE TRAINING THAT I'VE GIVEN. 16 Q THANK YOU. I HAVE NOTHING FURTHER -- ACTUALLY, 17 I'M SORRY. I HAVE PODBOY'S REPORT THAT I SUPPOSE I MIGHT 18 TRY AND COVER THAT NOW, EVEN THOUGH DR. PODBOY IS NOT HERE 19 TODAY. 20 HAVE YOU REVIEWED PODBOY'S REPORT? 21 A YES. 22 Q AND THE REPORT YOU HAVE, IS THAT DATED JULY 23, 23 2002? 24 A CORRECT. 25 Q AND DID YOU REVIEW THAT REPORT PRIOR TO TAKING 26 THE STAND TODAY AND ARE YOU PREPARED TO DISCUSS THAT 27 REPORT? 28 A YES. 69 1 Q IS THERE -- WHERE IS THE FIRST THING STATED ON 2 DR. PODBOY'S THREE-PAGE REPORT THAT YOU SHOULD ADDRESS? 3 IS THERE ANYTHING YOU DISAGREE WITH? 4 A MOST OF WHAT I WOULD WANT TO TALK ABOUT WOULD BE 5 IN RESPONSE TO WHAT DR. PODBOY WROTE ON PAGE THREE. THERE 6 IS NON SEQUITUR AT THE TOP WHERE HE SAYS -- ON PAGE THREE 7 WHERE SAYS MR. SCHMIDT APPEARED TO HAVE NO DIFFICULTY 8 WHATSOEVER IN DESCRIBING THE LEVEL OF VIOLENCE THAT HE AND 9 HIS GIRLFRIEND INITIATED. THIS IS IN DIRECT CONTRAST TO 10 THE FINDING OF DR. LEO. I DON'T UNDERSTAND WHAT THAT 11 WOULD BE IN DIRECT CONTRAST TO THAT WAS IN MY REPORT WHICH 12 DR. PODBOY REFERENCES HERE. 13 DR. PODBOY THEN THE VERY NEXT LINE AFTER A SPACE 14 ON PAGE THREE GOES ON TO QUOTE ESSENTIALLY, MY ULTIMATE 15 OPINION ABOUT THIS INTERROGATION THAT IT'S PSYCHOLOGICALLY 16 COERCIVE WELL-RECOGNIZED INTERROGATION TECHNIQUE TO 17 COMMUNICATE PROMISE OF LENIENCY IN EXCHANGE FOR COMPLIANCE 18 AND CONFESSION. AND THEN SO I'M NOT SURE WHY HE QUOTES 19 THAT. THEN DR. PODBOY -- BECAUSE IT'S NOT CONTRADICTED BY 20 WHAT IS SAID ABOVE IT. THEN DR. PODBOY SAYS HE, MEANING 21 ME, WENT ON TO MENTION A TECHNIQUE KNOWN AS A THEME, BUT 22 THIS EXAMINER'S REVIEW OF THE AFOREMENTIONED FOUND NO SUCH 23 EVIDENCE. 24 ANYBODY WHO IS AN EXPERT IN THE FIELD OF 25 INTERROGATION, WHETHER THEY ARE AN ACADEMIC EXPERT OR 26 POLICE EXPERT, WOULD ACKNOWLEDGE THAT THEMES ARE USED 27 REPEATEDLY IN THIS INTERROGATION, PARTICULARLY THE 28 SELF-DEFENSE THEME AND THE HELP YOURSELF OUT THEME. SO 70 1 WHEN HE SAYS THAT HE HASN'T SEEN ANY THEME IN THIS 2 INTERROGATION, APART FROM ANY EVALUATION OF WHETHER THE 3 THEMES ARE COERCIVE OR NOT, THAT'S JUST COMPLETELY WRONG. 4 NO ONE WITH ANY TRAINING OR KNOWLEDGE OF THE TOPIC WOULD 5 SAY THAT. 6 Q LET HE STOP YOU RIGHT THERE. DO YOU KNOW THE 7 NAME DR. PODBOY OR DR. JOHN PODBOY? 8 A NO. I'VE NEVER COME ACROSS THAT NAME BEFORE. 9 Q IS HE PART OF YOUR FIELD, THE FIELD OF THE STUDY 10 OF INTERROGATION TECHNIQUES OR -- 11 MR. FAULDER: OBJECTION. NO FOUNDATION. HE SAID 12 HE DOESN'T KNOW DR. PODBOY. 13 THE COURT: SUSTAINED. 14 Q (BY MR. J. PETERSEN) IF HE WERE A FIGURE FROM 15 WITHIN THAT AREA OF STUDY, THE STUDY OF COERCIVE LAW 16 ENFORCEMENT INTERROGATION TECHNIQUES AND CONFESSIONS, 17 WOULD YOU RECOGNIZE THE NAME? 18 A I BELIEVE I WOULD, BECAUSE I'VE READ ALL OF THE 19 LITERATURE ON THIS TOPIC IN THE LAST TWO DECADES. I MAY 20 HAVE MISSED A STRAY ARTICLE HERE AND THERE. I'VE READ ALL 21 THE SIGNIFICANT LITERATURE. IF HE HAD DONE RESEARCH IN 22 THIS AREA AND PUBLISHED THE RESEARCH OR EVEN IF HE HAD 23 PRESENTED IT AT A MAJOR MEETING, I WOULD HAVE ALMOST 24 CERTAINLY 99.9 PERCENT CERTAIN WOULD HAVE COME ACROSS IT 25 AND I WOULD BE FAMILIAR WITH WHO HE IS. 26 Q AND ARE THERE ANY SIGNIFICANT FIGURES -- 27 REGARDLESS OF WHAT THEY MIGHT HAVE PUBLISHED, ARE THERE 28 ANY SIGNIFICANT FIGURES IN THE FIELD THAT IF YOU WERE 71 1 GIVEN THEIR NAME YOU WOULD NOT LIKELY RECOGNIZE AS OPPOSED 2 TO YOUR FAILURE TO RECOGNIZE DR. PODBOY'S NAME? 3 A NO. THE RESEARCH -- I WOULD RECOGNIZE ALL THE 4 RESEARCHERS. THERE IS QUITE A NUMBER OF RESEARCHERS IN 5 ENGLAND AND MANY OF THE ARTICLES HAVE MULTIPLE AUTHORS. 6 SO POTENTIALLY SOMEBODY WHO'S JUST COMING UP IN ENGLAND 7 WHO'S A THIRD OR FOURTH AUTHOR IN AN ARTICLE, I MIGHT NOT 8 RECOGNIZE THEM RIGHT AWAY; BUT ALL THE MAJOR FIGURES IN 9 THIS AREA IN RESEARCH I WOULD RECOGNIZE. 10 Q ALL RIGHT. I THINK WE GOT DOWN TO JUST PAST THE 11 QUOTE THAT HE HAS OF YOUR REPORT IN THIS CASE. IS THERE 12 ANYTHING BEYOND THAT QUOTATION FROM YOUR REPORT THAT YOU 13 WOULD DISAGREE WITH IN DR. PODBOY'S THREE-PAGE LETTER? 14 A WELL, I THOUGHT HE WAS WRONG ABOUT THE THEMES. 15 CLEARLY THERE ARE THEMES USED. HE GUESS ON TO SAY IN THE 16 NEXT PARAGRAPH, IN CONCLUSION, AS SOMEONE WHO EXAMINED 17 MR. SCHMIDT CLOSE IN TIME TO THE PENDING CRIMINAL 18 ALLEGATIONS, IT IS EXTREMELY DIFFICULT FOR THIS EXAMINER 19 TO IMAGINE HOW ANYONE COULD CONCLUDE THAT MR. SCHMIDT WAS 20 SUBJECT TO IMPROPER INTERROGATION TECHNIQUES OR UNDUE 21 COERCION. SINCE THERE IS AN OBJECTIVE, I WOULD DISAGREE 22 WITH THIS SINCE THERE IS OBJECTIVE RECORD OF THE 23 INTERROGATION, TWO VIDEOTAPES WERE TRANSCRIBED. 24 IT'S RELEVANT WHETHER SOMEBODY INTERVIEWED 25 MR. SCHMIDT CLOSE IN TIME TO THE PENDING CRIMINAL 26 ALLEGATIONS. ANY JUDGMENT ABOUT WHETHER THE INTERROGATION 27 IS OR IS NOT COERCIVE SHOULD COME FROM ANALYSIS OF THIS 28 RECORD, THE VIDEOTAPE AND TRANSCRIPT, NOT FROM AN 72 1 INTERVIEW PROXIMATE IN TIME WITH MR. SCHMIDT. AND, OF 2 COURSE, HE SAYS IT'S EXTREMELY DIFFICULT FOR THIS EXAMINER 3 TO IMAGINE HOW ANYONE COULD CONCLUDE THAT MR. SCHMIDT WAS 4 SUBJECTED TO IMPROPER INTERROGATION TECHNIQUES OR UNDUE 5 COERCION. EVEN IF SOMEBODY DISAGREED WITH ME AND THOUGHT 6 THIS WAS NOT IMPROPER INTERROGATION TECHNIQUES OR UNDUE 7 COERCION, IT'S NOT DIFFICULT TO IMAGINE WHY I CAME TO THAT 8 CONCLUSION. AND I'VE ARTICULATED THAT CONCLUSION IN THIS 9 TESTIMONY. SO I THINK IT'S AN EXAGGERATED STATEMENT AND I 10 THINK IT'S WRONG. 11 THE NEXT PARAGRAPH, HE WAS VERY ANXIOUS TO 12 JUSTIFY, MINIMIZE AND RATIONALIZE HIS MISCONDUCT IMPLYING 13 A PRIMITIVE BUT WELL-KNOWN PSYCHOLOGICAL MECHANISM. THE 14 PROBLEM I HAVE WITH THIS, IT PORTRAYS MR. SCHMIDT AS IF 15 HE'S THE ONE WHO'S GENERATING THE JUSTIFICATIONS, THE 16 MINIMIZATION AND RATIONALIZATION, WHEN IN FACT HE BEGINS 17 THE INTERROGATION DENYING, DENYING, DENYING. AND THE 18 TECHNIQUE IS TO GET HIM TO THINK THAT IF HE ADMITS IN 19 SELF-DEFENSE, HE'S JUSTIFIED. HE RATIONALIZED IT. HE 20 WON'T GET PUNISHED. IT'S NOT MISCONDUCT. THERE'S NO 21 CONSEQUENCES. HE GETS TO GO HOME. 22 AND IN MY ANALYSIS OF THIS INTERROGATION, IT'S 23 NOT UNTIL PAGE 35 OF THE SECOND VIDEOTAPE THAT MR. SCHMIDT 24 MAKES THE FIRST ADMISSION. AND -- DIRECT ADMISSION. AND 25 SO IF MR. SCHMIDT WERE, AS DR. PODBOY ALLEGES IN THIS 26 REPORT, ANXIOUS TO JUSTIFY AND MINIMIZE AND RATIONALIZE 27 MISCONDUCT, IT WOULDN'T HAVE BEEN NECESSARY TO HAVE 28 INTERROGATED HIM UP TO THAT POINT, TO HAVE USED THESE 73 1 TECHNIQUES TO REPEATEDLY TRY TO PERSUADE HIM TO CONFESS BY 2 ESSENTIALLY SUGGESTING HE WOULDN'T GET PUNISHED AND GET TO 3 GO HOME. 4 IF WHAT DR. PODBOY IS SAYING IS TRUE, MR. SCHMIDT 5 WOULD HAVE JUST SPONTANEOUSLY AND VOLUNTARILY ADMITTED IT, 6 ALBEIT, AS DR. PODBOY IS SUGGESTING, IN KIND OF A 7 MINIMIZED FASHION; BUT THAT DID NOT OCCUR. SO I THINK 8 DR. PODBOY'S CONCLUSION HERE IS ERRONEOUS AND DISCONFIRMED 9 BY THE RECORD OF THE INTERROGATION AND THE LENGTH OF TIME 10 AND AMOUNT OF TECHNIQUE AND TYPE OF TECHNIQUES THAT WERE 11 NECESSARY TO GET THE CONFESSION. 12 Q THE FACT IF YOU -- WE REVIEWED A COMMENT BY ONE 13 OF THE OFFICERS IN THIS TAPE TWO TRANSCRIPT WHERE THE 14 OFFICER IS SAYING IF YOU CONTINUE TO DENY, DENY, DENY, 15 YOU'RE GOING TO BE A LIAR AND YOU'RE GOING TO BE A 16 MURDERER. DO YOU REMEMBER THAT COMMENT? 17 A YEAH. IT WOULD BE ON PAGE 28, LINE 19, WHERE HE 18 SAYS, IF "YOU SAT HERE AND SAY DENY, DENY, YOU HAVE LIED 19 TO ME AND NOT TOLD THE TRUTH AND SO THEN YOU ARE A 20 MURDERER." CORRECT. 21 Q WOULD THAT COMMENT FROM THE OFFICER MAKE ANY 22 SENSE AT ALL IF MR. SCHMIDT HAD NOT BEEN DENYING, DENYING, 23 DENYING, AND HAD TO BE CONVINCED BY GIVING THIS UNTRUE 24 SELF-DEFENSE SCENARIO? 25 A NO. I THINK THE ANSWER IS TRANSPARENTLY NO. IT 26 WOULDN'T BE NECESSARY TO USE THIS TECHNIQUE OR SAY THESE 27 THINGS IF WHAT DR. PODBOY IS SAYING WERE ACCURATE. 28 MR. J. PETERSEN: ONE MOMENT PLEASE. 74 1 (PAUSE.) 2 Q (BY MR. J. PETERSEN) IN FACT AFTER THIS 3 TECHNIQUE IS USED WHERE THE OFFICER OR OFFICERS OFFER THIS 4 FALSE THEME OF SELF-DEFENSE, DOESN'T MR. SCHMIDT THEN 5 ADMIT UNDER THE THEORY THE OFFICERS OFFERED HIM, DOESN'T 6 HE GO AHEAD AND CONFESS UNDER THIS PHONY SELF-DEFENSE 7 THEORY THAT DOESN'T WORK IN THESE CASES? 8 A THAT IS MY RECOLLECTION, YES. 9 Q SO WOULD IT BE TRUE THAT HE EVENTUALLY DOES ADOPT 10 THE DEFENSE OFFERED TO HIM OR THE PHONY DEFENSE OFFERED TO 11 HIM BY THE OFFICER? 12 A IT IS TRUE THAT HE EVENTUALLY ADOPTS THE 13 SELF-DEFENSE SCENARIO AND ADMITS TO IT, YES. 14 (PAUSE.) 15 THE COURT: DO THE PARTIES WISH TO TAKE A RECESS? 16 MR. R. PETERSEN: YEAH. 17 THE COURT: LET'S BE IN RECESS. 18 (RECESS TAKEN AT 2:46 P.M.) 19 THE COURT: BACK ON THE RECORD. THE WITNESS HAS 20 RESUMED THE STAND. 21 ARE WE READY WITH CROSS? 22 MR. J. PETERSEN: I'M HOPING WE'RE READY, YOUR 23 HONOR. I'M DONE. 24 MR. FAULDER: I'M READY TO CROSS. THANK YOU. 25 THE COURT: CROSS. 26 CROSS-EXAMINATION 27 Q (BY MR. FAULDER) GOOD AFTERNOON. 28 A GOOD AFTERNOON. 75 1 Q DR. LEO, WE'VE TALKED ABOUT QUITE A BIT HERE THIS 2 AFTERNOON AND, UNFORTUNATELY, I HAVE TO TAKE YOU BACK 3 SOMEWHAT TO THE BEGINNING AND TALK TO YOU ABOUT YOUR 4 CREDENTIALS AGAIN. I DO HAVE A FEW QUESTIONS. 5 A OKAY. 6 Q I NOTICED THAT THE C.V. THAT WAS PRESENTED IN 7 EVIDENCE TODAY WAS FROM MARCH OF 2002. AND I DOWNLOADED 8 YOUR RECENT C.V. FROM THE INTERNET FROM YOUR WEBSITE AND 9 THAT WAS DATED JUNE OF 2002. 10 IS THERE ANY SIGNIFICANT DIFFERENCE BETWEEN THOSE 11 TWO C.V.'S THAT WE SHOULD KNOW ABOUT? 12 A OFF THE TOP OF MY HEAD, NO. I CAN'T THINK OF 13 ANYTHING. I TYPICALLY UPDATE MY C.V. FROM MONTH TO 14 MONTH. AND I JUST PRESENTED THE JUNE C.V. TO THE WEBSITE. 15 Q THE JUNE C.V. IS UPDATED MORE THAN THE MARCH 16 ONE? 17 A CORRECT. 18 Q DR. LEO, YOU RECEIVED YOUR PH.D IN AUGUST 1994 19 AND YOUR J.D. IN MAY OF 1994; IS THAT CORRECT? 20 A THAT'S MY RECOLLECTION, YEAH. 21 Q YOU HAVE NOT PASSED ANY STATE BAR IN THE UNITED 22 STATES; IS THAT CORRECT? 23 A I'VE NEVER TAKEN THE STATE BAR. 24 Q YOU'RE NOT A LAWYER? 25 A CORRECT. A PRACTICING LAWYER. 26 Q AND ACCORDING TO YOUR WEBSITE, YOU'VE BEEN AN 27 ASSOCIATE PROFESSOR OF CRIMINOLOGY AT THE UNIVERSITY OF 28 CALIFORNIA IRVINE SINCE JULY OF 2001? 76 1 A I THINK THAT'S WHEN TENURE WENT THROUGH. 2 Q JUST ABOUT A YEAR YOU'VE BEEN AN ASSOCIATE 3 PROFESSOR OF CRIMINOLOGY? 4 A CORRECT. AND ALSO ASSOCIATE PROFESSOR OF 5 PSYCHOLOGY AND SOCIAL BEHAVIOR. 6 Q I WANTED TO GET TO THAT. I WANTED TO SHOW YOU 7 WHAT'S BEEN PREVIOUSLY MARKED PEOPLE'S NUMBER 3 AND THEN 8 AFTER THAT I'LL SHOW YOU PEOPLE'S EXHIBIT NUMBER 4. 9 I NEED A POINT OF CLARIFICATION ON THAT. SO WHEN 10 THE DEFENSE HAS A CHANCE TO REVIEW THOSE, I'LL SHOW THEM 11 TO YOU. 12 (PAUSE.) 13 Q (BY MR. FAULDER) SHOWING YOU, DR. LEO, WHAT'S 14 FIRST BEEN MARKED EXHIBIT NUMBER 3, CAN YOU IDENTIFY WHAT 15 THAT IS FOR THE RECORD? 16 A YEAH. THIS LOOKS LIKE A PRINTOUT OF THE WEB PAGE 17 THAT THE UNIVERSITY MAINTAINS FOR ME. 18 Q CAN YOU TELL THE COURT FOR THE RECORD WHAT 19 PEOPLE'S EXHIBIT NUMBER 4 IS? IDENTIFY THAT PLEASE. 20 A THIS LOOKS LIKE THE WEBSITE FOR THE PSYCHOLOGY 21 AND SOCIAL -- PSYCHOLOGY AND SOCIAL BEHAVIOR WEBSITE. AND 22 THEY HAVE ME LISTED AS AFFILIATE SOCIAL ECOLOGY FACULTY ON 23 PAGE FOUR OF FOUR. 24 Q YOU'RE ANSWERING QUESTIONS I HAVEN'T ASKED YET. 25 THE PSYCHOLOGY WEBSITE DOESN'T HAVE YOU LISTED AS 26 AN ASSOCIATE PROFESSOR, DOES IT? 27 A IT HAS ME LISTED AS AFFILIATE SOCIAL ECOLOGY 28 FACULTY. 77 1 Q THERE'S A LIST OF ASSOCIATE PROFESSORS ON THAT 2 PRINTOUT, CORRECT? 3 A THERE IS A LIST OF PEOPLE WHOSE PRIMARY 4 APPOINTMENT IS IN THE PSYCHOLOGY DEPARTMENT, SOME OF WHOM 5 ARE ASSOCIATE PROFESSORS. 6 Q AND YOU'RE LISTED NOT AS AN ASSOCIATE PROFESSOR 7 BUT IN THE AFFILIATE SOCIAL ECOLOGY FACULTY, CORRECT? 8 A YEAH. THEY'VE GOT THE FACULTY WHICH MEANS 9 PRIMARY APPOINTMENT; AFFILIATE SOCIAL ECOLOGY, WHICH MEANS 10 SECONDARY APPOINTMENT. AND I'M LISTED THERE. THEY DON'T 11 HAVE A CATEGORY OF ASSOCIATE PROFESSOR FACULTY. THE ONES 12 IN THE FACULTY ARE LISTED AS ASSOCIATE PROFESSORS. 13 Q IN PSYCHOLOGY, THERE ARE ASSOCIATE PROFESSORS 14 LISTED IN THERE, CORRECT? 15 A CORRECT. 16 Q YOU'RE NOT LISTED AS ASSOCIATE PROFESSOR IN THAT 17 PSYCHOLOGY DEPARTMENT? 18 A UNDER WHERE IT SAYS THE FACULTY, CORRECT. I'M 19 LISTED INSTEAD UNDER AFFILIATE SOCIAL ECOLOGY FACULTY, 20 CORRECT. 21 Q SO WE'VE GOT THAT STRAIGHTENED OUT, THAT MEANS 22 THAT, FIRST OF ALL, GOING BACK TO ASSOCIATE PROFESSORS OF 23 PSYCHOLOGY WHO ARE LISTED, THEY HAVE THEIR DEGREES IN 24 PSYCHOLOGY, CORRECT? 25 A CORRECT. 26 Q AND YOU DO NOT HAVE YOUR DEGREE IN PSYCHOLOGY? 27 A CORRECT. 28 Q AND IT'S YOUR OPINION THAT YOU'RE ONE OF THE 78 1 THREE LEADING EXPERTS IN THE COUNTRY, AT LEAST IN SOCIAL 2 PSYCHOLOGY? 3 A NO. I THINK THAT MISSTATES WHAT I SAID. 4 Q OKAY. 5 A MY OPINION THAT IN THE AREA OF RESEARCH ON POLICE 6 INTERROGATION COERCION AND CONFESSIONS THAT I AM ONE OF 7 THE THREE LEADING SCHOLARS IN TERMS OF VISIBILITY AND 8 PUBLICATION AND CITATION. 9 Q OKAY. I WOULD LIKE TO TALK TO YOU ABOUT SOME OF 10 YOUR PUBLICATIONS. I'M ALSO GOING TO GO OVER ALL OF THEM, 11 ALTHOUGH I BELIEVE I'VE READ ALL OF THEM SO FAR. I MAY 12 HAVE MISSED A COUPLE OF THEM, BUT WE HAVE TO GO BACK A 13 LITTLE BIT TO THE TERM PEER REVIEW. WE'LL GET INTO SOME 14 OF YOUR PUBLICATIONS. AND AGAIN I'M NOT GOING TO BELABOR 15 THIS POINT, BUT A CRITICAL REVIEW BY OTHER PROFESSIONALS 16 OF YOUR WORK, AND CRITICAL IN THE NEUTRAL TERM IS WHAT 17 PEER REVIEW IS ALL ABOUT; IS THAT CORRECT? 18 A NO, I DON'T THINK THAT'S RIGHT. I DON'T KNOW 19 WHAT YOU MEAN WHEN YOU SAY CRITICAL IN THE NEUTRAL TERM. 20 PEER REVIEW IS A PRE-PUBLICATION REVIEW BY OTHERS, SO IT'S 21 PRE-PUBLICATION. SO IF SOMEBODY HAS CRITICIZED ME AFTER 22 PUBLICATION, THAT'S NOT WHAT IS MEANT. 23 Q CRITIQUING YOUR WORK AND MAKING SURE THAT THE 24 QUALITY IS THERE BEFORE IT IN FACT GETS PUBLISHED; IS THAT 25 CORRECT? 26 A THAT'S THE THEORY, YES. 27 Q AND AS YOU STATED, PEER REVIEW OCCURS BEFORE 28 PUBLICATION? 79 1 A CORRECT. 2 Q AND THAT'S DIFFERENT FROM THE LAW REVIEW ARTICLES 3 WHICH ARE STUDENT PUBLICATIONS, CORRECT? 4 A IT DEPENDS ON WHAT LEVEL OR TYPE, IF ANY, OF PEER 5 REVIEW. SOME LAW REVIEWS ARE TOTALLY STUDENT RUN, SOME 6 LAW REVIEWS HAVE FACULTY SPONSORS WHO HAVE SAT FOR PEER 7 REVIEW, AND SOME LAW REVIEWS HAVE ACTUAL BOARDS WITH 8 FACULTY ACROSS THE COUNTRY WHO ARE SENT ARTICLES AND MADE 9 COMMENTS ABOUT WHETHER THEY SHOULD BE ACCEPTED OR 10 REJECTED. 11 Q I SEE. IN GENERAL, THOUGH, LAW REVIEW 12 PUBLICATIONS ARE STUDENT PUBLICATIONS? 13 A THEY'RE STUDENT EDITED, YES. 14 Q AND USUALLY NOT SUBJECT TO THE SAME TYPE OF 15 PRE-PUBLICATION ANALYSIS THAT YOU GET IN ANOTHER PUBLISHED 16 WORK? 17 A USUALLY NOT, CORRECT. 18 Q GOING THROUGH SOME OF THE PUBLICATIONS YOU'VE 19 TALKED ABOUT ALREADY, THE 2001 PUBLICATION OF QUESTIONING 20 THE RELEVANCE OF MIRANDA IN THE TWENTY-FIRST CENTURY, 21 THAT'S A LAW REVIEW ARTICLE, CORRECT? 22 A CORRECT. 23 Q AND THAT WAS SOMETHING THAT WAS SUBMITTED AS A 24 PART OF A SYMPOSIUM THAT YOU PRESENTED EARLIER; ISN'T THAT 25 CORRECT? 26 A IT WAS INVITED AS PART OF SYMPOSIUM, CORRECT. 27 Q AND THAT WAS NOT SUBJECT TO PEER REVIEW BEFORE 28 PUBLICATION? 80 1 A NOT IN THE TRADITIONAL SENSE, CORRECT. 2 Q AND THE SAME WITH 1999 PUBLICATION "ADAPTING TO 3 MIRANDA: MODERN INTERROGATORS' STRATEGIES FOR DEALING WITH 4 OBSTACLES POSED BY MIRANDA"? 5 A CORRECT. THAT WAS PUBLISHED AND DID NOT GO 6 THROUGH TRADITIONAL FORM OF REVIEW. 7 Q AND THAT IS CO-WRITTEN? 8 A CORRECT. 9 Q YOU'VE PUBLISHED A COUPLE OF THINGS IN LAW REVIEW 10 WITH AT LEAST NORTHWEST LAW REVIEW WITH RICHARD OFSHE; IS 11 THAT CORRECT? 12 A I DON'T THINK THAT'S CORRECT. IT'S THE JOURNAL 13 OF CRIMINAL LAW AND CRIMINOLOGY WHICH IS RUN THROUGH 14 NORTHWESTERN UNIVERSITY IN CHICAGO, BUT IS A HYBRID SOCIAL 15 SCIENCE LAW REVIEW. AND EVERYTHING THAT I PUBLISHED IN 16 THE JOURNAL OF CRIMINAL LAW AND CRIMINOLOGY DID GO THROUGH 17 TRADITIONAL PEER REVIEW. 18 Q NORTHWEST UNIVERSITY SCHOOL OF LAW? 19 A THEY ARE THE ULTIMATE PUBLISHER OF IT, YES. 20 Q AND THERE ARE TWO '98 PUBLICATIONS THAT YOU 21 COLLABORATED ON WITH MR. OFSHE; IS THAT CORRECT? 22 A CORRECT. 23 Q "USING THE INNOCENT TO SCAPEGOAT MIRANDA" AND 24 "THE CONSEQUENCES OF FALSE CONFESSION"? 25 A CORRECT. 26 Q AND JUST SO WE'RE CLEAR, WE'RE NOT TALKING ABOUT 27 FALSE CONFESSION IN THIS CASE, ARE WE? 28 MR. J. PETERSEN: BEYOND THE SCOPE, YOUR HONOR. 81 1 THE COURT: OVERRULED. 2 THE WITNESS: I'M SORRY. WAS THAT OVERRULED? 3 THE COURT: YES. 4 THE WITNESS: I BELIEVE I WAS NOT ASKED A 5 QUESTION ABOUT FALSE CONFESSION IN MY DIRECT EXAMINATION. 6 Q (BY MR. FAULDER) YOU HAVE A 1996 PUBLICATION I 7 WANT TO ASK YOU ABOUT, "INSIDE THE INTERROGATION ROOM." 8 ARE YOU FAMILIAR WITH THAT? 9 A CORRECT. 10 Q ISN'T IT TRUE THAT THAT '96 PUBLICATION "INSIDE 11 THE INTERROGATION ROOM" WAS REALLY A STATEMENT OF YOUR -- 12 OR RE-STATEMENT OF YOUR FIELD WORK FOR YOUR THESIS? 13 A WHEN YOU SAY RE-STATEMENT, I'M NOT SURE WHAT YOU 14 MEAN. 15 Q HOW ABOUT REWRITING? IS THAT A BETTER WAY TO PUT 16 IT? 17 A YEAH. WHEN SOMEBODY DOES A DISSERTATION, THEY 18 SOMETIMES TAKE PARTS OF THE DISSERTATION DRAFTS AND 19 REWRITE THEM, EXTEND THEM FOR PUBLICATION AND THAT DID 20 GROW OUT OF MY DISSERTATION RESEARCH, BUT NOT PREVIOUSLY 21 PUBLISHED. 22 Q AND THEN THE ONLY BOOK THAT YOU'VE PUBLISHED AS 23 OF TODAY, YOU CO-WROTE WITH GEORGE THOMAS, III; IS THAT 24 RIGHT? 25 A CORRECT. 26 Q IN 19 -- 27 A I THINK IT WAS '98. 28 Q IT IS '98. I'M SORRY. "THE MIRANDA DEBATE"? 82 1 A CORRECT. 2 Q I'M GOING TO GET BACK TO THAT LATER ON "INSIDE 3 THE INTERROGATION ROOM", BECAUSE I THINK THERE'S IMPORTANT 4 THINGS IN THAT WE NEED TO TALK ABOUT. BUT I WANT TO GET 5 TO SOME OF THE PROFESSIONAL MEMBERSHIPS YOU'VE LISTED IN 6 YOUR C.V. 7 YOU WRITE THAT YOU'RE A MEMBER OF AMERICAN 8 SOCIETY OF CRIMINOLOGY; IS THAT BERKELEY, CALIFORNIA? 9 A NO. AMERICAN SOCIETY OFFICES I THINK ARE IN 10 COLUMBUS, OHIO. IT'S A NATIONAL ORGANIZATION. 11 Q ACCORDING TO THE WEBSITE THE AMERICAN SOCIETY OF 12 CRIMINOLOGY WAS FOUNDED IN BERKELY THEN? 13 A IT MAY HAVE FOUNDED IN BERKELY IN THE EARLY 20TH 14 CENTURY. 15 Q TELL THE COURT WHAT DIVISION OF THAT SOCIETY 16 YOU'RE A MEMBER. 17 A I'M JUST A GENERAL MEMBER, NOT A MEMBER OF ANY 18 PARTICULAR DIVISION. 19 Q AND IT'S TRUE THAT IN ORDER TO BE A MEMBER OF 20 THAT SOCIETY, ALL YOU HAVE TO DO IS PAY DUES, CORRECT? 21 A CORRECT. 22 Q AND SAME WITH THE LAW AND SOCIETY ASSOCIATION 23 LOCATED IN MASSACHUSETTS, THE ONLY REQUIREMENT FOR 24 MEMBERSHIP IS TO PAY DUES; IS THAT CORRECT? 25 A I PRESUME SO, YES. 26 Q AND THE AMERICAN SOCIOLOGICAL ASSOCIATION, THAT'S 27 WASHINGTON, D.C., THE ONLY REQUIREMENT IS TO PAY DUES, 28 CORRECT? 83 1 A YOU KNOW, I ASSUME THE ANSWER TO ALL THESE 2 QUESTIONS IS YES, BUT THEY USUALLY HAVE YOU CHECK BOXES IF 3 YOU'RE A STUDENT OR A PROFESSOR AND WHAT LEVEL OF 4 PROFESSOR AND WHAT ALL THESE THINGS ARE. I ASSUME THE 5 ANSWER IS YES, BUT I'M NOT 100 PERCENT SURE. 6 Q YOU DON'T HAVE TO HAVE ANY SPECIAL EXPERTISE TO 7 BE A MEMBER OF ANY OF THOSE ORGANIZATIONS HOWEVER? 8 A SEE, I JUST DON'T KNOW. I ASSUME THE ANSWER IS 9 YES, BUT IT'S POSSIBLE THAT IF I WERE A LAYPERSON TRYING 10 TO JOIN THEY WOULD DENY MY APPLICATION; BUT I'VE JUST 11 FILLED OUT THE APPLICATION AND SENT IN MONEY. 12 Q THAT'S HOW YOU DID IT, FILLED OUT THE APPLICATION 13 AND SENT IN THE MONEY AND YOU BECAME A MEMBER? 14 A CORRECT. 15 Q OKAY. THERE'S A DIFFERENT ONE THOUGH, THE 16 AMERICAN PSYCHOLOGICAL ASSOCIATION. WHAT TYPE OF 17 MEMBERSHIP DO YOU HAVE IN THAT GROUP? 18 A I'VE A GENERAL MEMBERSHIP IN THAT ORGANIZATION 19 AND ALSO I BELONG TO DIVISION 41 WHICH IS THE AMERICAN 20 PSYCHOLOGY-LAW SOCIETY. 21 Q THAT'S SOMETHING I WANTED TO ASK YOU ABOUT ALSO. 22 THEY'RE THE SAME ORGANIZATION, CORRECT? JUST THE 23 PSYCHOLOGY-LAW SOCIETY IS A SUBDIVISION OF THE AMERICAN 24 PSYCHOLOGY ASSOCIATION, CORRECT? 25 A THEY HAVE SEPARATE MEETINGS AND THEY HAVE 26 SEPARATE -- THERE'S A BOARD OF TRUSTEES FOR BOTH, 27 PRESIDENT, VICE-PRESIDENT, SEPARATE NEWS LETTERS. SO EVEN 28 THOUGH ONE IS PART OF THE OTHER, THEY'RE SEPARATE. 84 1 Q I WENT ON THE INTERNET AND GOT THEIR APPLICATION. 2 AND ACCORDING TO THE APPLICATION, YOU HAVE TO BE A 3 PSYCHOLOGIST TO BE A MEMBER OF AMERICAN PSYCHOLOGICAL 4 ASSOCIATION UNLESS YOU'RE A STUDENT OR ASSOCIATE. SO 5 WHICH OF THOSE TWO ARE YOU? 6 A I'M A RESEARCH PSYCHOLOGIST. 7 Q WITHOUT A PSYCHOLOGY DEGREE? 8 A WITHOUT A FORMAL DEGREE IN PSYCHOLOGY. I TEACH 9 CLASSES IN PSYCHOLOGY. I TRAIN GRADUATE STUDENTS. I HAVE 10 AN APPOINTMENT IN THE PSYCHOLOGY DEPARTMENT. 11 Q SO IT'S YOUR REPRESENTATION THAT THEY ACCEPTED 12 YOU WITHOUT A PSYCHOLOGY DEGREE? 13 A CORRECT. 14 Q CAN YOU TELL THE COURT JUST BRIEFLY ABOUT HOW 15 MUCH TRAINING OR EDUCATION YOU'VE HAD TO GET YOUR PH.D AND 16 YOUR J.D.? 17 A WELL, I SPENT SIX YEARS IN GRADUATE SCHOOL, TWO 18 AT THE UNIVERSITY OF CHICAGO IN SOCIOLOGY AND FOUR AT 19 BERKELEY DOING BOTH PH.D AND THE J.D. THE TWO YEARS AT 20 UNIVERSITY OF CHICAGO WERE FULL-TIME COURSE WORK FOR THE 21 ENTIRE -- THEY'RE ON QUARTER SYSTEM, SIX QUARTERS. SO IT 22 WOULD HAVE THREE CLASSES A QUARTER, SOMETHING LIKE 23 EIGHTEEN COURSES. 24 Q HOW MANY TOTAL NUMBER OF YEARS? JUST ROUND IT 25 OFF. 26 A SIX YEARS, TWO FOR MASTER'S IN CHICAGO AND FOUR 27 AT BERKELEY. 28 Q OKAY. THANK YOU. NOW, YOU HAVE NO FORMAL LAW 85 1 ENFORCEMENT TRAINING, CORRECT? 2 A NO, THAT'S INACCURATE. I DO HAVE LAW ENFORCEMENT 3 TRAINING. IT'S LISTED ON A COUPLE PAGES OF THE C.V. AS 4 LAW ENFORCEMENT TRAINING THAT I MENTIONED ON DIRECT, ALL 5 THE INTERVIEWING INTERROGATIONS. 6 Q YOU DO HAVE FORMAL INTERROGATION TRAINING, BUT NO 7 FORMAL LAW ENFORCEMENT TRAINING? 8 A THAT IS PART OF LAW ENFORCEMENT. OTHER THAN 9 THAT, IF THAT'S THE QUESTION YOU'RE ASKING, THEN NO, I 10 HAVE NO LAW ENFORCEMENT TRAINING OUTSIDE OF INTERVIEWING 11 AND INTERROGATION. 12 Q IN 1993 YOU SPENT A WEEK IN SCHOOL AT THE FORMAL 13 INTERROGATION SCHOOL, CORRECT? 14 A THAT WAS ONE OF FIVE, YES. 15 Q THAT'S THE ONLY LAW ENFORCEMENT TRAINING YOU'VE 16 EVER HAD, CORRECT? 17 A NO. INACCURATE. 18 Q WHAT OTHER LAW ENFORCEMENT TRAINING HAVE YOU HAD 19 OUTSIDE OF THAT ONE WEEK IN 1993? 20 A WELL, MAYBE WE'RE TALKING PAST EACH OTHER, BUT 21 ALL THE LAW ENFORCEMENT TRAINING I'VE HAD ON POLICE 22 INTERROGATION IS LISTED ON THE C.V., STARTING IN DECEMBER 23 OF 1990 AT THE OAKLAND POLICE DEPARTMENT. AND ASSOCIATED 24 TRAINING IN 1991. AND THEN THE TRAINING AT SAN MATEO 25 COMMUNITY COLLEGE IN 1992 OR 1993. ALL OF WHICH, IF YOU 26 GIVE ME JUST A SEC HERE, IS LISTED ON PAGE 15 OF THE MARCH 27 2002 C.V. 28 Q PERHAPS IT IS A PROBLEM WITH SEMANTICS. I THINK 86 1 WHAT YOU'RE TALKING ABOUT IS FORMAL INTERROGATION TRAINING 2 RATHER THAN TRAINING IN LAW ENFORCEMENT. 3 A YES, BUT LAW ENFORCEMENT RECEIVED THIS TRAINING, 4 TOO. WHEN YOU SAY LAW ENFORCEMENT TRAINING, I THINK THIS 5 IS LAW ENFORCEMENT TRAINING IN ONE OF THE MOST SIGNIFICANT 6 AREAS OF CRIMINAL INVESTIGATION. 7 Q SO YOU DID THE ONE WEEK IN 1993, CORRECT? 8 A CORRECT. 9 Q AND YOU DID ONE WEEK AT COMMUNITY COLLEGE IN 10 1993? 11 A THIS WAS PUT ON IN 1992, JANUARY OF 1992. THE 12 ADMINISTRATION OF CRIMINAL JUSTICE AT SAN MATEO COMMUNITY 13 COLLEGE. 14 Q OTHER THAN THOSE TWO WEEKS, YOU ATTENDED A 15 TWO-DAY SEMINAR PUT ON BY REID AND ASSOCIATES PRIVATE 16 SEMINAR? 17 A ADVANCE INTERROGATION TRAINING IN NOVEMBER OF 18 1991. 19 Q THAT WAS NOT SPONSORED BY LAW ENFORCEMENT, THAT 20 WAS PRIVATE, RIGHT? 21 A THAT WAS A PRIVATE SEMINAR, THAT'S TRUE. BUT 22 THEY GO AROUND TRAINING LAW ENFORCEMENT HOW TO DO 23 INTERROGATION. IT IS REGARDED AS LAW ENFORCEMENT TRAINING 24 IN THE FIELD OF INTERROGATION. 25 Q IT WASN'T DONE FOR YOU BY LAW ENFORCEMENT? 26 THAT'S ALL I'M TRYING TO GET AT. 27 A IT WASN'T DONE FOR A FORMAL POLICE AGENCY, THAT'S 28 CORRECT. 87 1 Q THAT'S TRUE ALSO WITH THE OTHER THREE DAYS YOU 2 SPENT IN 1991, THAT ALSO WAS A PRIVATE SEMINAR NOT DONE BY 3 LAW ENFORCEMENT? 4 A CORRECT. REID AND ASSOCIATES, THE LEADING 5 TRAINING OF LAW ENFORCEMENT IN INTERROGATION IN THIS 6 COUNTRY. 7 Q AND ONE DAY IN 1990, CORRECT? 8 A CORRECT. 9 Q AT THE OAKLAND POLICE DEPARTMENT. TOTAL OF 16 10 DAYS IN FORMAL INTERROGATION TRAINING? 11 A I BELIEVE THAT'S RIGHT. THE ONE IN GLYNCO, 12 GEORGIA MAY HAVE BEEN SEVEN ACTUAL DAYS, BUT I BELIEVE IT 13 WAS FIVE. SO THAT WOULD BE 16 FULL DAYS, IF YOU ADD UP 14 ALL THE COURSE WORK OF FORMAL POLICE INTERROGATION 15 TRAINING. 16 Q THANK YOU. SIXTEEN DAYS OF TOTAL FORMAL 17 INTERROGATION TRAINING? 18 A CORRECT. 19 Q ALL OF THAT WAS BEFORE YOU HAD YOUR PH.D OR YOUR 20 J.D., CORRECT? 21 A CORRECT. 22 Q ALL OF THAT -- THE LAST FORMAL TRAINING YOU HAD 23 WAS ALMOST TEN YEARS AGO, CORRECT? 24 A CORRECT. AND I ASSUME -- YEAH, THE LAST TRAINING 25 I'VE HAD WAS ALMOST TEN YEARS AGO, CORRECT. 26 Q THANK YOU. I HAVE TO ASK YOU SOME OF THESE 27 QUESTIONS ABOUT YOUR TESTIMONY HERE TODAY AND PAYMENT FOR 28 YOUR TESTIMONY TODAY. SO THAT'S WHAT I'M GOING TO ASK YOU 88 1 ABOUT NOW. 2 CAN YOU TELL THE COURT HOW YOU'RE BEING PAID FOR 3 THIS CASE? 4 A HOPEFULLY BY CHECK. 5 Q MAYBE YOU MISUNDERSTAND. 6 A YOU'RE NOT LETTING ME FINISH MY ANSWER. 7 Q IS IT BY THE HOUR OR SET FEE? 8 A IF YOU'D LET ME FINISH, THE WORK THAT I DO IS 9 TYPICALLY BROKEN DOWN INTO CONSULTATION, CASEWORK AND/OR 10 EXPERT WITNESS TESTIMONY, IF IT GOES THAT FAR. I'VE 11 SUBMITTED A BILL FOR TIME I SPENT CONSULTING. I TYPICALLY 12 BILL 250 AN HOUR. THE BILL CAME TO SOMEWHERE AROUND 2,800 13 OR $3,000. I DON'T REMEMBER EXACTLY WHAT IT IS. IT HAS 14 YET TO BE PAID. I WAS THEN AUTHORIZED FOR $5,000 FOR THIS 15 PRETRIAL TESTIMONY. WITH THE TRAVEL TIME, IT MAY EXCEED 16 20 HOURS OF TIME. I DON'T KNOW. BUT THE CAP I UNDERSTAND 17 IS AT 5,000. SO I BILL 250 AN HOUR FOR MY TIME. 18 Q AND NUMBER OF HOURS SO FAR ON THIS CASE? 19 A I HAVEN'T ADDED THEM UP. I SUBMITTED A BILL FOR 20 THE TIME PRIOR TO THIS AND THEN I HAVEN'T ADDED UP THE 21 TRIP YET BECAUSE I'M NOT BACK. 22 Q SOMEWHERE IN THE NEIGHBORHOOD OF $7,500 TOTAL? 23 A UNLESS THE BILL FOR THIS TRIP COMES OUT TO LESS 24 THAN 4,500, YES. 25 Q AND WHAT PERCENTAGE OF YOUR INCOME IS DOING 26 DEFENSE TESTIMONY OR CASE PREPARATION? 27 A WELL, SOMETIMES I GET INVOLVED IN SIMILAR CASES 28 WHERE I WORK FOR PLAINTIFFS. AND THE WAY THIS IS 89 1 CATEGORIZED BY THE UNIVERSITY IS OUTSIDE PROFESSIONAL 2 WORK, WHICH ALSO INVOLVES GETTING PAID FOR TALKS OR 3 ANYTHING THAT'S NOT ACADEMIC WORKS. AND THE AMOUNT 4 VARIES, TYPICALLY FROM A THIRD TO TWO-THIRDS OF MY INCOME 5 FOR OUTSIDE PROFESSIONAL WORK, WHICH WOULD INCLUDE 6 CONSULTATION AND CASEWORK AND/OR EXPERT WITNESS TESTIMONY, 7 AS WELL AS OTHER OUTSIDE PROFESSIONAL ACTIVITIES. 8 Q ONE-THIRD TO TWO-THIRDS OF YOUR TOTAL INCOME IS 9 INVOLVED IN THESE OUTSIDE PROFESSIONAL JOBS? 10 A TYPICALLY, CORRECT. 11 Q AND THAT STARTED FOR YOU AROUND 1997; IS THAT 12 CORRECT? 13 A WELL, I FIRST -- YEAH, I FIRST TESTIFIED I 14 BELIEVE AUGUST OF '97. I HAD BEEN CONSULTED PROBABLY 15 FIRST TIME 1995. AND SOME OTHER OUTSIDE PROFESSIONAL 16 ACTIVITIES HAD STARTED BEFORE THEN IN 1984. 17 Q WE'VE COVERED THIS IS A LITTLE BIT ON DIRECT. I 18 THINK TO GIVE THE COURT A LITTLE MORE DETAIL ABOUT THIS 19 OTHER OUTSIDE PROFESSIONAL WORK, ESPECIALLY HOW IT RELATES 20 TO PRESENTATION TO OR PROFESSIONAL SEMINARS, YOU'VE LISTED 21 IN YOUR C.V., PROFESSIONAL SEMINARS THAT YOU'VE PROVIDED 22 OVER THE LAST FEW YEARS, CORRECT? 23 A I BELIEVE THE PRESENTATIONS ARE BROKEN DOWN INTO 24 DIFFERENT GROUPS. AND I THINK YOU'RE REFERRING TO ONE -- 25 WHAT I HAVE LISTED AS PROFESSIONAL ASSOCIATIONS. 26 Q RIGHT. AND IT GOES FROM 1997 TO 2001, CORRECT? 27 A YOU HAVE A JUNE OF 2002 C.V. AND IT GOES TO 28 2001? 90 1 Q YES. 2 A IT SHOULD GO TO 2002. 3 Q THE ONE FROM JUNE OF 2002 STARTS IN 1997 AND GOES 4 TO NOVEMBER OF 2001. 5 A THERE WAS A MARCH PRESENTATION OF 2002 TO 6 MILITARY PROSECUTORS WHICH SHOULD BE ON THERE. 7 Q BUT IN NOVEMBER OF 2001 YOU GAVE A PRESENTATION 8 TO ANNUAL TRIAL DEFENSE SERVICES CONFERENCE? 9 A UNITED STATES ARMY, CORRECT. 10 Q OCTOBER OF 2001, YOU GAVE A MEETING OR 11 PRESENTATION TO THE FEDERAL DEFENDERS PROGRAM AND THE 12 ILLINOIS ASSOCIATION OF CRIMINAL DEFENSE LAWYERS, CORRECT? 13 A CORRECT. 14 Q AND OCTOBER OF 2001, WISCONSIN PUBLIC DEFENDER 15 CONFERENCE? 16 A CORRECT. 17 Q AND AUGUST OF 2001, ANNUAL MEETING OF THE 18 NATIONAL ASSOCIATION OF CRIMINAL DEFENSE ATTORNEYS, 19 CORRECT? 20 A CORRECT. 21 Q JULY OF 2001, NEW MEXICO CRIMINAL DEFENSE LAWYERS 22 ASSOCIATION SEMINAR? 23 A CORRECT. 24 Q JUNE OF 2001, LOS ANGELES PUBLIC DEFENDER'S 25 OFFICE, CORRECT? 26 A CORRECT. 27 Q MARCH OF 2001, POLICE INTERROGATION TECHNIQUES 28 AND FALSE CONFESSIONS TO UNITED STATES AIR FORCE WESTERN 91 1 CIRCUIT WORKSHOP? 2 A YEAH. 3 Q THE NEXT ONE, FEBRUARY OF 2001, TO CALIFORNIA 4 PUBLIC DEFENDER'S ASSOCIATION PROVING YOUR CLIENT'S 5 CONFESSION IS FALSE OR COERCED, CORRECT? 6 A CORRECT. 7 Q AND THAT WAS AT THE CALIFORNIA PUBLIC DEFENDER'S 8 ASSOCIATION ANNUAL CAPITAL CASE DEFENSE SEMINAR, CORRECT? 9 A CORRECT. 10 Q BEFORE THAT, IN NOVEMBER OF 2000, SAN DIEGO 11 PUBLIC DEFENDER'S OFFICE, CORRECT? 12 A CORRECT. 13 Q NOVEMBER OF 2000, AGAIN ORANGE COUNTY PUBLIC 14 DEFENDER'S TRAINING SEMINAR, CORRECT? 15 A CORRECT. 16 Q JUNE OF 2000, WEST VIRGINIA ANNUAL PUBLIC 17 DEFENDER'S CONFERENCE, CORRECT? 18 MR. J. PETERSEN: IF I MAY MAKE A SUGGESTION? I 19 THINK THE C.V. SPEAKS FOR ITSELF. THE COURT HAS A COPY OF 20 THE C.V. I THINK YOU'VE PROBABLY ALREADY -- 21 MR. FAULDER: ALL GOES TO BIAS, YOUR HONOR. 22 THE COURT: HOW DOES IT GO TO BIAS? 23 MR. FAULDER: YOUR HONOR, AS THE COURT WILL FIND 24 OUT, GOING THROUGH ALL THE PRESENTATIONS SINCE 1997, WHEN 25 MR. LEO BEGAN TO MAKE A THIRD TO TWO-THIRDS OF HIS INCOME, 26 IT WAS ALL TO PRESENT SEMINARS AND TESTIMONY TO DEFENSE 27 ORGANIZATIONS AND FOR DEFENSE CLIENTS. 28 THE COURT: HE HAS A RIGHT TO MAKE A RECORD, 92 1 MR. PETERSEN. IT'S OVERRULED. 2 MR. J. PETERSEN: YOUR HONOR, WE HAVE THE C.V. IN 3 EVIDENCE. 4 THE COURT: I KNOW. IT'S OVERRULED. 5 Q (BY MR. FAULDER) AND THEN IN JUNE OF 2000 -- I'M 6 SORRY, MAY OF 2000, MISSISSIPPI PUBLIC DEFENDER'S SPRING 7 SEMINAR, CORRECT? 8 A CORRECT. 9 Q WOULD IT BE FAIR TO SAY, SO WE CAN MAYBE CUT THIS 10 A LITTLE BIT SHORTER, THAT OF THE 22 SEMINARS YOU 11 PRESENTED 20 OF THOSE WERE TO PUBLIC DEFENDERS OR DEFENSE 12 ASSOCIATIONS? 13 A YEAH, I THINK THAT'S FAIR. I DON'T KNOW WHY THE 14 ONE TO PROSECUTORS WAS NOT LISTED ON THE C.V. IT SHOULD 15 HAVE BEEN. AND THERE'S A COUPLE -- THERE'S TWO OTHERS. 16 SO IF THERE'S 23 THERE SHOULD BE 20 OF THE 23 WOULD BE TO 17 DEFENDER ORGANIZATIONS AND PUBLIC DEFENDER'S OFFICES OR 18 ATTORNEY GROUPS FOR CRIMINAL DEFENSE ATTORNEYS, CORRECT. 19 Q AND I BELIEVE YOUR TESTIMONY WAS THAT SINCE 1977 20 YOU'VE TESTIFIED 72 TIMES IN CRIMINAL CASES? 21 A NO, 1997. AND I THINK I WAS ASKED IF I TESTIFIED 22 ON CASES INVOLVING INTERROGATION AND THE ANSWER WAS 72 23 TIMES. I'VE ALSO ESSENTIALLY TESTIFIED IN A CIVIL CASE 24 INVOLVING IMPROPER ARREST PROCEDURES. SO 73 TOTAL TIMES 25 SINCE 1997. 26 Q I MEANT '97. I'M SORRY IF I SAID ANOTHER TIME. 27 OTHER THAN THE CIVIL CASE, ALL 72 TIMES WERE FOR 28 CRIMINAL DEFENSE ATTORNEYS? 93 1 A WELL, NO. ONE OF THE 72 CASES WAS A CIVIL 2 ATTORNEY, SO IT WAS PLAINTIFF'S ATTORNEY. 3 Q I SAID OTHER THAN THAT ONE, THE OTHER 72 YOU'VE 4 TESTIFIED ON BEHALF OF THE DEFENSE? 5 A RIGHT. AND MY ANSWER IS THE SAME. THERE'S 72 6 CASES IN WHICH I'VE TESTIFIED ON ISSUES RELATED TO 7 DISPUTED INTERROGATION -- THAT DOESN'T INCLUDE THE CASE 8 INVOLVING WRONGFUL ARREST, SO 72 CASES. OF THOSE 72 9 CASES, ONE OF THEM WAS A CIVIL. I WAS RETAINED BY THE 10 PLAINTIFF'S ATTORNEY IN THAT CASE. IN THE OTHER 71 CASES, 11 I TESTIFIED FOR CRIMINAL DEFENSE ATTORNEYS. IN THOSE 12 CASES SOME WERE ACTUALLY HABEAS HEARINGS, SO TECHNICALLY 13 CIVIL CASES OR QUASI CIVIL CASES. 14 Q AND YOU HAVE NEVER TESTIFIED IN ANY OF THOSE 15 TIMES THAT A CONFESSION WAS TRUE OR FALSE, CORRECT? 16 A USUALLY THE ISSUE OF WHETHER CONFESSION IS TRUE 17 OR FALSE GOES BEFORE A JURY. IT'S THE ULTIMATE ISSUE AND 18 I WOULD NOT TESTIFY ABOUT THAT AT TRIAL. I MIGHT TALK 19 ABOUT WHETHER THE STATEMENT IS CONSISTENT -- I DON'T 20 RECALL SAYING TO A JURY THIS STATEMENT IS TRUE OR THIS 21 STATEMENT IS FALSE. 22 Q WHEN I ASKED YOU IF YOU'VE EVER TESTIFIED THAT A 23 CONFESSION WAS FALSE, THE ANSWER IS NO THAT YOU'VE NEVER 24 TESTIFIED A CONFESSION WAS FALSE? 25 A I DON'T RECALL TESTIFYING -- BEING ASKED THE 26 ULTIMATE QUESTION AND TESTIFYING TO THE ULTIMATE QUESTION. 27 Q YOU'VE ALSO PERSONALLY OBSERVED 122 28 INTERROGATIONS? 94 1 A THAT WAS FOR THE DISSERTATION AT THE OAKLAND 2 POLICE DEPARTMENT, CORRECT. 3 Q AND YOU'VE NEVER TESTIFIED -- I'LL TAKE THAT 4 BACK. 5 I DO WANT TO MOVE NOW TO YOUR SPECIFIC REPORT. 6 A OKAY. 7 Q AND YOUR REPORT IS A PAGE AND A HALF? 8 A CORRECT. 9 Q YOU DID REVIEW THE TWO TAPES OF THE INTERVIEW 10 BETWEEN DETECTIVE POMA AND DETECTIVE FLETCHER AND 11 MR. SCHMIDT, CORRECT? 12 A YEAH. I WOULD CHARACTERIZE IT AS AN 13 INTERROGATION NOT AN INTERVIEW. 14 Q BUT YOU -- AND YOU'VE SPOKEN WITH MR. SCHMIDT'S 15 ATTORNEY ABOUT THIS CASE AND WHAT ISSUES WERE IMPORTANT TO 16 HIM IN TERMS OF THIS PARTICULAR CONFESSION, CORRECT? 17 A I HAVE SPOKEN TO THEM, CORRECT. 18 Q YOU'VE NEVER INTERVIEWED DETECTIVE POMA ABOUT 19 THIS CASE BEFORE TODAY, HAVE YOU? 20 A CORRECT. THERE WOULD BE NO NEED TO. 21 Q AND YOU NEVER INTERVIEWED DETECTIVE FLETCHER? 22 A CORRECT. 23 Q YOU NEVER INTERVIEWED JOHANN SCHMIDT BEFORE YOU 24 PREPARED YOUR REPORT OR TESTIFIED, CORRECT? 25 A CORRECT. 26 Q WOULD IT BE FAIR TO SAY -- FIRST OF ALL, YOU'RE 27 NOT A CLINICAL PSYCHOLOGIST; WE'VE ESTABLISHED THAT 28 ALREADY, CORRECT? 95 1 A CORRECT. 2 Q AND YOU'RE NOT LICENSED TO DO WHAT CLINICAL 3 PSYCHOLOGISTS WOULD DO? 4 A CORRECT. I'M RESEARCH PSYCHOLOGIST, NOT 5 CLINICAL. 6 Q WOULD IT BE FAIR TO SAY THAT CLINICAL 7 PSYCHOLOGISTS FOCUS ON THE PERSON WHO'S BEING INTERROGATED 8 AND HAVING TO DO WITH THE PERSONALITY CHARACTERISTICS OR 9 MAKEUP OF THE SUBJECTS OF THAT INTERROGATION? 10 A CORRECT. CLINICAL PSYCHOLOGISTS FOCUS ON THOSE 11 ASPECTS OF AN INDIVIDUAL. 12 Q YOU INSTEAD FOCUS ON THE PERSON WHO'S DOING THE 13 INTERROGATING, CORRECT? 14 A NO. I FOCUS ON THE INTERROGATION SITUATION. THE 15 ENVIRONMENT, THE TECHNIQUES, THE PRESSURES, HOW 16 INTERROGATION IS -- PSYCHOLOGICAL PROCESS IS STRUCTURED, 17 THE SOCIAL PSYCHOLOGY OF THE INTERROGATION. 18 Q YOU DO NOT FOCUS ON THE PERSON BEING INTERROGATED 19 BUT THE CONDUCT OR BEHAVIOR OF THE PEOPLE WHO ARE DOING 20 THE INTERROGATION? 21 A YEAH, BUT IN ANY EVALUATION, I'M GOING TO FOCUS 22 ON BOTH MY EXPERTISE IN SOCIAL PSYCHOLOGY OF IT, BUT IN 23 ANY EVALUATION IF THERE'S RELEVANT INFORMATION ABOUT THE 24 INDIVIDUAL, THAT MAY AFFECT MY FINDING OR MY EVALUATION; 25 BUT THAT'S NOT MY SPECIALTY. I'M NOT A CLINICAL 26 PSYCHOLOGIST. 27 Q AND YOU DIDN'T IN THIS CASE BECAUSE YOU DIDN'T 28 INTERVIEW MR. SCHMIDT, CORRECT? 96 1 A CORRECT. AND THERE WAS NO NEED TO FOCUS ON 2 ANYTHING OTHER THAN THE RECORD IN TERMS OF WHY I WAS 3 RETAINED. 4 Q I UNDERSTAND YOU DIDN'T THINK THERE WAS A NEED. 5 NOW, THE THEME THAT YOU'VE IDENTIFIED IN THIS 6 CASE -- OR, YOU'VE IDENTIFIED THERE IS A THEME IN THIS 7 CASE FROM YOUR POINT OF VIEW; IS THAT CORRECT? 8 A YEAH, AT LEAST TWO. THAT ARE USED REPEATEDLY. 9 Q AND YOUR DEFINITION OF A THEME IS A PSYCHOLOGICAL 10 OR MORAL EXCUSE OR JUSTIFICATION THAT IS INTENDED TO MAKE 11 IT EASIER FOR THE SUSPECT TO CONFESS? 12 A YES. 13 Q DID I GET THAT RIGHT? 14 A THAT'S RIGHT. IT'S SOMETIMES ALSO CALLED 15 FACE-SAVING OUT. 16 Q NOW, IN YOUR EXPERIENCE IN VIEWING 122 17 INTERROGATIONS PERSONALLY AND I BELIEVE ANOTHER 60 18 VIDEOTAPED INTERROGATIONS, IT'S TRUE THAT SOMETIMES THE 19 SUBJECT OF THE INTERROGATION ALREADY COMES UP WITH A 20 WELL-DEVELOPED THEME IN HIS OWN HEAD, CORRECT? 21 A IT'S CERTAINLY POSSIBLE, YEAH, THAT THEY COULD 22 COME IN WITH THEIR OWN -- YOU COULDN'T CALL IT A THEME, 23 BUT THEY MIGHT HAVE A RATIONALIZATION OR A STORY OR -- 24 ACCOUNT, THAT WOULD BE A BETTER WORD. 25 Q WHATEVER WE CALL IT, THE SUBJECT MAY ALREADY HAVE 26 IN HIS HEAD A PSYCHOLOGICAL OR MORAL EXCUSE OR 27 JUSTIFICATION THAT IS INTENDED TO MAKE IT EASIER FOR THE 28 SUSPECT TO CONFESS? 97 1 A IT'S CERTAINLY POSSIBLE. 2 Q OKAY. SAME DEFINITION THEN COULD APPLY EITHER TO 3 THE PERSON WHO'S THE SUBJECT OF THE INTERROGATION OR THE 4 PERSON WHO'S CONDUCTING THE INTERROGATION? 5 A IT COULD. IT WOULD JUST BE ODD TO CALL IT A 6 THEME. I THINK YOU'D CALL IT AN ACCOUNT, BECAUSE THEME 7 HAS SPECIFIC MEANING IN TERMS OF INTERROGATION TECHNIQUES; 8 BUT THE SAME IDEA COULD APPLY. 9 Q DIFFERENT TERM OF ART, BE HELPFUL TO AVOID 10 CONTUSION, BUT THE DEFINITION WOULD BE THE SAME? 11 A WHAT I'M SAYING, IT'S POSSIBLE SOMEBODY COULD 12 COME IN AND DO THAT. 13 Q TO DISTINGUISH THE TWO, TO CALL A THEME A THEME 14 AND THE ACCOUNT SOMETHING YOU CALL IT DIFFERENT WHEN 15 YOU -- FROM YOUR POINT OF VIEW, IN ORDER FOR AN 16 INTERROGATION TECHNIQUE TO ACTUALLY BE A THEME, THEN IT 17 MUST BE INITIATED BY THE POLICE OR THE INTERROGATORS? 18 A THAT'S THE WAY THEY'RE DESCRIBED IN INTERROGATION 19 TRAINING MANUALS IN THE INDUSTRY. IT'S SOMETHING THAT 20 COMES FROM THE INTERROGATOR. 21 Q OKAY. I TOLD YOU WE'D TALK ABOUT YOUR BOOK THAT 22 YOU WROTE BACK -- OR YOUR ARTICLE YOU WROTE BACK IN 1996, 23 "INSIDE THE INTERROGATION ROOM." DO YOU HAVE A COPY OF 24 THAT WITH YOU? 25 A NO, I DON'T. 26 Q IN THAT BOOK OR IN THAT ARTICLE DO YOU RECALL 27 MAKING A LIST OF INTERROGATION THEMES? 28 A NO, I DO NOT. 98 1 Q DO YOU RECALL MAKING A LIST OF INTERROGATION 2 TECHNIQUES? 3 A I MAY HAVE MADE A LIST OF INTERROGATION 4 TECHNIQUES. 5 Q IN YOUR STUDY OF THE 122 INTERROGATIONS BACK IN 6 1996 OR AT LEAST THE SUBJECT OF THAT 1996 ARTICLE, YOU 7 ATTEMPTED TO CATEGORIZE CERTAIN INTERROGATIONS AS COERCED 8 OR UNCOERCED, CORRECT? 9 A I THINK IT WAS 182 INTERROGATIONS IN THAT 1996 10 ARTICLE. 11 Q OKAY. AND TO DO THAT YOU HAD ESTABLISHED OR 12 CAPTURED A SET OF POLICE BEHAVIOR OR INTERROGATION 13 PRACTICES THAT YOU COULD LABEL AS COERCIVE PRACTICES? 14 A YEAH, I THINK I DID IN THAT ARTICLE. 15 Q THERE WERE TEN SEPARATE CONDITIONS THAT WERE 16 PRESENT IN ORDER FOR -- AT LEAST ONE OF THOSE HAD TO BE 17 PRESENT IN ORDER FOR AN INTERROGATION TO BE COERCIVE? 18 A I BELIEVE SO, BUT I DON'T HAVE THE ARTICLE IN 19 FRONT OF ME. 20 Q ONE OF TEN WAS THE DETECTIVE FAILED TO READ THE 21 MIRANDA WARNINGS? 22 A YES, CLEARLY THAT WOULD BE COERCIVE. 23 Q THAT'S NOT PRESENT IN THIS CASE, CORRECT? 24 A CORRECT. THERE WAS READING OF MIRANDA WARNINGS. 25 Q TWO, SUSPECT WAS NOT PERMITTED TO INVOKE HIS 26 MIRANDA, RIGHTS? 27 A THAT'S CORRECT. 28 Q CONDITION THAT YOU IDENTIFIED? 99 1 A CORRECT. 2 Q THAT'S NOT TRUE IN THIS CASE? 3 A WELL, I THINK THERE'S ARGUMENT ABOUT WHETHER 4 THAT'S TRUE IN THIS CASE. 5 Q THE THIRD WAS THE DETECTIVE TOUCHED THE SUSPECT 6 IN AN UNFRIENDLY MANNER. THAT'S NOT TRUE IN THIS CASE? 7 A I DON'T RECALL THAT. CORRECT. 8 Q THE SUSPECT WAS IN OBVIOUS PHYSICAL OR 9 PSYCHOLOGICAL PAIN, WHETHER OR NOT RELATED TO THE 10 DETECTIVE'S ACTIONS. AND THAT'S NOT TRUE IN THIS CASE? 11 A CORRECT. 12 Q THE DETECTIVE THREATENED THE SUSPECT WITH 13 PHYSICAL OR PSYCHOLOGICAL HARM. THAT'S NOT TRUE IN THIS 14 CASE? 15 A THE DETECTIVE IMPLIED THAT THE -- IF HE DIDN'T 16 TAKE THE SELF-DEFENSE SCENARIO, HE'D GET TAGGED AS A 17 MURDERER AND THE IMPLICATION WAS HE WOULD GET -- HE'D GET 18 PUNISHED BY THE CRIMINAL JUSTICE SYSTEM IN A WAY HE 19 WOULDN'T IF HE WENT FOR THE SELF-DEFENSE THEME. SO I 20 THINK THERE IS A THREAT. I THINK IT'S AN IMPLICIT THREAT, 21 BUT I THINK IT'S THERE. 22 Q THE DETECTIVE DIDN'T THREATEN THE SUSPECT IN THIS 23 CASE WITH PHYSICAL HARM? 24 A CORRECT. I THINK THERE'S THREAT OF HARM BY THE 25 SYSTEM. WASN'T ABOUT PHYSICAL VIOLENCE, THAT THE 26 DETECTIVE WOULD HIT HIM OR STICK HIM OUT A WINDOW AND DROP 27 HIM. 28 Q IT'S YOUR POSITION NOW THERE WAS THREAT OF 100 1 PSYCHOLOGICAL HARM BY WHAT? 2 A THERE IS PROMISE OF LENIENCY WHICH I DESCRIBED IN 3 MY DIRECT AND IN THE WAY THIS TECHNIQUE WAS SET UP AND THE 4 OBVIOUS AND IMPLIED CONVERSE AND ANY PROMISE OF LENIENCY 5 IS THE THREAT, IF YOU DON'T AGREE TO A PROMISE OF 6 LENIENCY, YOU'RE THREATENED WITH PUNISHMENT. AND THE 7 PUNISHMENT WAS GETTING TAGGED AS A MURDERER AND IMPLICATE 8 THAT THERE WOULD BE CONSEQUENCES AND HE WOULDN'T BE ABLE 9 TO GO HOME. 10 Q SO THAT'S YOUR DEFINITION OF A THREAT OF 11 PSYCHOLOGICAL HARM THAT WAS PRESENT IN THIS CASE? 12 A I DON'T KNOW, I WOULDN'T CALL IT PSYCHOLOGICAL 13 HARM. I WOULD SAY IT WAS THREAT OF PUNISHMENT. I THINK 14 THAT QUALIFIES THREAT OF HARM EVEN THOUGH IT'S NOT A 15 DIRECT THREAT OF PHYSICAL HARM BY THE INVESTIGATOR. 16 Q I'M CONFUSED. YOU JUST SAID YOU DIDN'T THINK IT 17 WAS A THREAT OF PSYCHOLOGICAL HARM AND YOU AGREED IT'S NOT 18 A THREAT OF PHYSICAL HARM? 19 A IT'S A THREAT OF HARM. I DON'T KNOW WHETHER YOU 20 WANT TO CALL IT PSYCHOLOGICAL OR PHYSICAL. IT'S A THREAT 21 OF PUNISHMENT WHICH IS A BROADER CATEGORY OF THREAT OF 22 HARM. IT'S A THREAT YOU WILL GET ARRESTED, CONVICTED AND 23 PUNISHED. IT'S A PRETTY CLEAR THREAT. 24 Q BUT YOU'VE IDENTIFIED A SPECIFIC CONDITION AS 25 COERCIVE WHERE A DETECTIVE THREATENS THE SUSPECT WITH 26 PHYSICAL OR PSYCHOLOGICAL HARM. WE AGREE THAT THERE 27 WASN'T PHYSICAL HARM THREATENED TO MR. SCHMIDT DURING THE 28 INTERROGATION OF HIM BY DETECTIVE POMA OR FLETCHER? 101 1 A THAT HE WOULDN'T PHYSICALLY HARM HIM, CORRECT. 2 Q AND YOU'VE ALREADY AGREED I BELIEVE SOMEWHAT THAT 3 THE DETECTIVES DIDN'T THREATEN MR. SCHMIDT WITH 4 PSYCHOLOGICAL HARM? 5 A THAT HE DIDN'T THREATEN HIM WITH PSYCHOLOGICAL 6 HARM; NEVERTHELESS, THERE WAS THREAT OF HARM. 7 Q YOU ALSO IDENTIFIED A CONDITION OF COERCION AS A 8 DETECTIVE DEPRIVING THE SUSPECT OF ESSENTIAL NECESSITY, 9 SUCH AS FOOD, WATER OR ACCESS TO THE BATHROOM. THAT 10 DIDN'T HAPPEN IN THIS CASE? 11 A CORRECT. THAT'S MY RECOLLECTION. 12 Q EIGHTH CONDITION IS THAT THE QUESTIONING MANNER 13 WAS UNRELENTING, BADGERING OR HOSTILE. THAT DIDN'T HAPPEN 14 IN THIS CASE? 15 A THAT'S MY RECOLLECTION. CORRECT. 16 Q THE NINTH CONDITION THAT YOU LABEL AS COERCIVE IS 17 WHEN THE INTERROGATION LASTS AN UNREASONABLE AMOUNT OF 18 TIME, WHICH YOU IDENTIFY AS MORE THAN SIX HOURS. THAT 19 DIDN'T HAPPEN IN THIS CASE? 20 A CORRECT. 21 Q AND, FINALLY, THE SUSPECT'S WILL APPEARED TO BE 22 OVERBORNE BY SOME OTHER FACTOR OR COMBINATION OF FACTORS. 23 A I THINK IT WAS. I THINK HE WAS MANIPULATED INTO 24 CONFESSING BECAUSE OF THIS PROMISE OF LENIENCY AND IMPLIED 25 CONVERSE THREAT. I THINK THAT'S COERCIVE INTERROGATION. 26 Q SO YOUR FINAL OPINION THAT HIS WILL WAS OVERBORNE 27 BY PROMISE OF LENIENCY? 28 A YES, THAT WAS INVOLUNTARY STATEMENTS. A PROMISE 102 1 OF LENIENCY AS A RESULT OF TECHNIQUES THAT I DISCUSSED ON 2 DIRECT THAT IMPLIED A THREAT OF HARM BY THE SYSTEM IF HE 3 DIDN'T COOPERATE. 4 Q DO YOU REMEMBER WRITING THAT "COERCION IN THE 5 CONTEXT OF INTERROGATION IS NOT AN EXTERNAL THING ONE CAN 6 INDEPENDENTLY OBSERVE OR SOMETHING WHOSE EXISTENCE ONCE 7 CAN OBJECTIVELY VERIFY, BUT RATHER A CONCEPT THAT COURTS 8 ATTACH TO A VARIABLE AND SOMETIMES QUITE AMORPHOUS SET OF 9 POLICE BEHAVIORS"? 10 A YES. 11 Q THESE TEN CONDITIONS THAT WE'VE JUST GONE THROUGH 12 WERE THINGS THAT YOU PERSONALLY HAVE DECIDED ARE COERCIVE 13 CONDITIONS WHICH MAY OR MAY NOT EXIST IN A PARTICULAR 14 INTERROGATION? 15 A YES. AND WHAT I WAS SAYING THERE, FOR EXAMPLE, 16 BEFORE 1936 PHYSICAL VIOLENCE WASN'T CONSIDERED COERCIVE, 17 SO LEGAL NOTIONS, COURTS NOTIONS OF WHAT IS COERCIVE 18 CHANGE OVER TIME, BUT I BASED THAT ON MY READING AND 19 KNOWLEDGE OF WHAT CASE LAW WAS. 20 Q SO REASONABLE MIND WOULD JUST AGREE WITH YOUR 21 LIST OF TEN CONDITIONS THAT MAY OR MAY NOT RESULT IN 22 COERCIVE -- OR DEFINITION OF COERCIVE INTERROGATION? 23 A I THINK THE DISAGREEMENT WOULD BE AT THE MARGINS. 24 I DON'T THINK ANYBODY WOULD DISAGREE WITH MOST OF WHAT'S 25 ON THAT LIST. 26 Q HOWEVER, YOU WROTE FURTHER THAT YOU BELIEVE THAT 27 YOU ERRED ON THE SIDE OF RULING AS COERCIVE QUESTIONING 28 METHODS THAT MANY CONTEMPORARY TRIAL AND APPELLATE COURTS 103 1 WOULD OTHERWISE DEEM TO BE NON-COERCIVE AND THUS, YOUR 2 CRITERIA FOR COERCIVE TACTICS GENERALLY RESOLVE ANY DOUBTS 3 IN FAVOR OF THE SUSPECT, NOT THE POLICE? 4 A IF THAT'S WHAT I WROTE, THAT'S WHAT I WROTE. 5 Q THAT'S WHAT YOU WROTE. 6 A OKAY. 7 Q WE HAVE TO NOW I THINK GET TO THE DETAILS OR THE 8 NUTS AND BOLTS OF THE INTERVIEW OR INTERROGATION OF 9 MR. SCHMIDT BY DETECTIVE POMA AND DETECTIVE FLETCHER. 10 A OKAY. 11 Q I WOULD LIKE TO DO THAT BY STARTING WITH YOUR 12 SUMMARY AGAIN. I THINK DR. PODBOY HAD IT SUMMARIZED ALSO; 13 BUT LET'S START WITH YOUR REPORT IN THE EXACT LANGUAGE IN 14 YOUR REPORT SO WE DON'T GET IT CONFUSED WITH ANYONE ELSE'S 15 OPINION. 16 IT'S YOUR BELIEF THAT DETECTIVE POMA OR DETECTIVE 17 FLETCHER, ONE OF THE TWO DETECTIVES WHO WERE PRESENT, 18 IMPLICITLY AND EXPLICITLY SUGGESTED THAT IF MR. SCHMIDT'S 19 ACTIONS CAN BE PORTRAYED AS SELF-DEFENSE, THEN HE WILL 20 RECEIVE NO PUNISHMENT AND IN EFFECT BE ABLE TO GO HOME 21 AFTER THE INTERROGATION TERMINATES, AND COMMUNICATING THAT 22 MR. SCHMIDT WILL RECEIVE PROSECUTORIAL LENIENCY WITH 23 REGARD TO BOTH THE CHARGE AND THE SENTENCE IF HE COMPLIES 24 WITH INTERROGATOR REQUEST FOR CONFESSION. THAT'S TRUE SO 25 FAR? 26 A CORRECT. HE TELLS HIMSELF THERE'S NO 27 CONSEQUENCES, YOU WON'T GET PUNISHED, YOU WILL GET TO GO 28 HOME. 104 1 Q WE'RE GOING TO BREAK THAT DOWN, TOO, BECAUSE I'M 2 SURE AS A RESEARCHER YOU AGREE THAT A CONCLUSION IS ONLY 3 AS GOOD AS THE PREMISE UPON WHICH IT RELIES, CORRECT? 4 A AND THE INFORMATION REVIEWED, CORRECT. CAN YOU 5 TELL ME -- JUST POINT TO ME WHERE, WHEN YOU'RE QUOTING 6 FROM MY REPORT SO I CAN FOLLOW YOU? 7 Q SURE. IT'S ONLY A PAGE AND A HALF. AND, 8 UNFORTUNATELY, IT'S NOT NUMBERED ANYWHERE. BUT THAT WAS 9 IN THE SECOND PARAGRAPH ON THE FIRST PAGE. 10 A OKAY. 11 Q CAN YOU TELL THE COURT WHERE IN THE TRANSCRIPT 12 EITHER DETECTIVE DURING THE INTERVIEW OF MR. SCHMIDT SAID 13 EITHER EXPLICITLY OR IMPLICITLY OR SUGGESTED IN EXPLICITLY 14 OR IMPLICIT MR. SCHMIDT WILL RECEIVE PROSECUTORIAL 15 LENIENCY WITH REGARD TO THE CHARGE? 16 A THIS JUST REPEATS EVERYTHING I SAID ON MY DIRECT 17 TESTIMONY. THE CLEAR MESSAGE IS -- TO ANSWER YOUR 18 QUESTION, START WITH PAGE 28. 19 Q WE'RE TALKING PROSECUTORIAL LENIENCY WITH REGARD 20 TO THE CHARGE IN THIS CASE? 21 A I SUGGESTED I THINK THE IMPLICATION IS CLEAR. HE 22 DOESN'T USE THOSE WORDS, BUT IT'S VERY CLEAR HE'S 23 PROMISING LENIENCY WHEN HE SAYS ON PAGE 27, LINE 19, THERE 24 ARE NO PUNISHMENTS IF YOU GET SELF-DEFENSE. ANY 25 REASONABLE PERSON WOULD UNDERSTAND THAT WHEN YOU TELL A 26 SUSPECT IN AN INTERROGATION, ESPECIALLY AN OFFICER WHO'S 27 BEEN TRAINED TO AVOID PROMISE OF LENIENCY, TRAINED IN 28 COERCIVENESS, THERE WILL BE NO PUNISHMENT, IF YOU SAY X OR 105 1 IF YOU GET X. SO WHEN HE SAYS ON LINE 27 -- PAGE 27, LINE 2 19, THERE ARE NO PUNISHMENTS IF YOU GET SELF-DEFENSE, THIS 3 IS A CLEAR, BALD STATEMENT THAT YOU WILL NOT GET 4 PROSECUTED IF YOU GET SELF-DEFENSE. THIS IMPLIES AND 5 SUGGESTS PROSECUTORIAL LENIENCY, JUDICIAL LENIENCY. 6 Q I UNDERSTAND THAT YOU THINK -- 7 A IT'S PART OF -- IT'S PART -- TO CONTINUE 8 ANSWERING YOUR QUESTION, HE SAYS ON PAGE 26, LINE NINE, 9 THERE IS NO CONSEQUENCES. AND HE SAYS ON LINE FIVE, PAGE 10 29, IF IT'S SELF-DEFENSE, YOU GO HOME. I DON'T THINK 11 THERE'S ANY OTHER REASONABLE WAY TO READ THOSE STATEMENTS, 12 AND THE OTHER ONES I MENTIONED ON DIRECT, AS SUGGESTING 13 POLICE, PROSECUTORIAL AND JUDICIAL LENIENCE. 14 Q DR. LEO, NOWHERE IN THE REPORT OR TRANSCRIPT DOES 15 EITHER DETECTIVE EXPLICITLY PROMISE PROSECUTORIAL LENIENCY 16 WITH REGARD TO THE CHARGE? 17 A HE DOESN'T USE THOSE WORDS, BUT I THINK HE DOES 18 IMPLY, COMMUNICATE AND TRANSMIT THAT IDEA. 19 Q SO WE CAN TAKE EXPLICITLY OUT OF YOUR CONCLUSION 20 THEN AND SAY IMPLICITLY SUGGESTS? 21 A I THINK IT'S EXPLICIT. HE DOESN'T USE THAT WORD, 22 BUT HE COMMUNICATED THAT IDEA EXPLICITLY. IT'S NOT 23 VERBATIM, BUT IT'S THERE. IT'S NOT A MATTER OF INFERRING. 24 IT'S BALD. IT'S RIGHT THERE ON THE TABLE. 25 Q DR. LEO, AT THAT POINT MR. SCHMIDT THROUGHOUT 26 THIS INTERVIEW HAD ONLY BEEN CHARGED WITH DRIVING WITHOUT 27 A LICENSE, CORRECT? 28 A I DON'T KNOW. 106 1 Q YOU SAID THAT HE WAS -- HE WOULD RECEIVE 2 PROSECUTORIAL LENIENCY WITH REGARD TO THE CHARGE. HE WAS 3 ONLY CHARGED OR ARRESTED FOR DRIVING WITHOUT A LICENSE AT 4 THAT POINT, CORRECT? 5 A THAT MAY HAVE BEEN CORRECT, I JUST DON'T KNOW. 6 Q HE WASN'T CHARGED WITH ANYTHING OTHER THAN -- 7 WITH ANYTHING YET. HE WAS ARRESTED FOR DRIVING WITHOUT A 8 LICENSE, CORRECT? 9 A CORRECT. 10 Q I HAD THIS QUESTION PREPARED FOR 11 CROSS-EXAMINATION. WHERE DID EITHER DETECTIVE EXPLICITLY 12 OR IMPLICITLY SUGGEST, IF EVER, TO MR. SCHMIDT HIS ACTIONS 13 CAN BE PORTRAYED AS SELF-DEFENSE AND NOT AN INTENTIONAL 14 KILLING. AND I BELIEVE THAT YOU GAVE THAT ANSWER AS PAGE 15 12 OF THE SECOND TAPE, STARTING AT LINES 26 THROUGH 27, 16 THE FIRST EVIDENCE OF ANY INDUCEMENT. 17 DO I HAVE THAT INFORMATION CORRECT? 18 A I BELIEVE THAT IS WHAT I TESTIFIED TO. GOING TO 19 LINE ONE ON PAGE 13. 20 Q THAT'S PAGE 12, 26 THROUGH 27 OF THE SECOND TAPE? 21 A CORRECT. 22 Q DR. LEO, I'LL ASK YOU TO GO TO THE FIRST 23 TRANSCRIPT OF THE TAPE AND GO TO PAGE EIGHT AT LINE SIX? 24 A OKAY. 25 Q IT'S AT THAT POINT THAT MR. SCHMIDT TELLS THE 26 DETECTIVES, "OKAY. LOOK, WE'LL GET TO THE POINT 27 GENTLEMEN. BECAUSE I DON'T LIKE PLAYING GAMES. I'M A 28 PERSON WHO HAS A GERMAN EDUCATION AND I LIKE THINGS LIKE 107 1 THIS." IF YOU SAW THE VIDEO, HE SNAPPED HIS FINGERS. 2 OKAY? 3 A OKAY. 4 Q "LET'S GET GOING WITH THE QUESTIONS AND LET'S HIT 5 IT THE RIGHT WAY." 6 A OKAY. 7 Q DO YOU RECALL READING THAT? 8 A YES. 9 Q DOES IT SOUND TO YOU LIKE A PERSON WHO WANTS TO 10 TALK TO THE POLICE? 11 A IT SOUNDS TO ME LIKE A PERSON THAT WANTS TO GET 12 OUT OF THE ROOM AND DOESN'T FULLY UNDERSTAND THE 13 SERIOUSNESS OF THE SITUATION AND SUBSEQUENTLY GOES ON TO 14 DESCRIBE WHY HE THINKS HE'S THERE AND DOESN'T DESCRIBE 15 BEING THERE TO BE INTERROGATED ABOUT A MURDER CHARGE. 16 Q THAT'S A GOOD SEGUE FOR ME. WHEN DETECTIVE POMA 17 SAYS, "OKAY. WHY DO YOU THINK YOU'RE -- WHY DO YOU THINK 18 WE'RE HERE" AND HE SAYS, "I THINK YOU'RE HERE TO ASK ME 19 QUESTIONS." 20 A CORRECT. 21 Q SO IT DOES SHOW THAT MR. SCHMIDT KNEW EXACTLY WHY 22 HE WAS THERE AND THAT WAS TO ANSWER THE DETECTIVES 23 QUESTIONS, CORRECT? 24 A YEAH, BUT I THINK THE WAY YOU SAY THAT IS 25 MISLEADING, BECAUSE WHEN IT GOES TO LINE FIFTEEN, HE'S 26 TALKING ABOUT A WEAPONS CHARGE, NOT HAVING A DRIVER'S 27 LICENSE, DRIVING UNDER THE INFLUENCE OF ALCOHOL. SO I 28 THINK ONE CAN REASONABLY INFER FROM THE CONTEXT, WHICH YOU 108 1 DIDN'T MENTION, THAT HE THINKS HE'S THERE TO ANSWER 2 QUESTIONS ABOUT FAR LESS SERIOUS CHARGES THAN WHAT HE'S 3 ULTIMATELY INTERROGATED ABOUT. 4 Q I NEVER MENTIONED ANYTHING ABOUT CHARGES OR ABOUT 5 A SUBJECT. I JUST ASKED YOU IF HE'S THERE TO ANSWER 6 QUESTIONS. 7 A AND I EXPLAINED WHY I THOUGHT IT'S MISLEADING FOR 8 ME TO AGREE WITH YOUR QUESTION. 9 Q THAT HE'S THERE TO TALK TO POLICE AND ANSWER 10 QUESTIONS, YOU THINK THAT'S MISLEADING? 11 A YEAH, BUT IT'S MISLEADING THE WAY YOU STATED IT. 12 HE KNEW HE'S THERE TO ANSWER QUESTIONS, BUT THE REASON HE 13 SAYS GET TO THE POINT, IN MY OPINION, IS BECAUSE HE WANTS 14 TO GET OUT OF THERE, AND HE THINKS HE'S GOING TO ANSWER 15 QUESTIONS ABOUT FAR LESS SERIOUS CHARGES -- 16 Q I SEE. 17 A -- THAN A MURDER INVESTIGATION. 18 Q I HAVEN'T ASKED ANYTHING ABOUT A MURDER 19 INVESTIGATION, NEITHER HAVE THE DETECTIVES; BUT IT'S YOUR 20 TESTIMONY THEN THAT YOU'RE INFERRING FROM MR. SCHMIDT'S 21 STATEMENT "I THINK YOU'RE HERE TO ASK ME QUESTIONS" THAT 22 HE'S NOT THERE TO ANSWER SERIOUS QUESTIONS? 23 A NO, I DIDN'T SAY THAT. I THINK THAT MISSTATES MY 24 TESTIMONY. 25 Q CERTAINLY YOU READ THIS PAGE BEFORE YOU GOT TO 26 PAGE 12, LINES 26 THROUGH 27, AND THE POLICE OFFICERS 27 FINALLY ASKING QUESTIONS ABOUT THE OFFENSE, CORRECT? 28 A CORRECT, I READ THE WHOLE THING AND WATCHED THE 109 1 VIDEO. 2 Q ALL RIGHT. GOING TO PAGE NINE, JUST THE NEXT 3 PAGE, LINE 22, DETECTIVE FLETCHER ASKS MR. SCHMIDT "HOW 4 DID YOU GET THE BLOOD ON THERE", TALKING ABOUT THE BLOOD 5 ON HIS HANDS, CORRECT? 6 A CORRECT. 7 Q AND MR. SCHMIDT SAYS HE HAD A PROBLEM AND HE HAD 8 TO GET A LITTLE BIT PHYSICAL, CORRECT? 9 A YES. 10 Q AND THAT HE HAD A MISUNDERSTANDING WITH A FRIEND, 11 CORRECT? 12 A YEAH, HE SAYS THAT, CORRECT, LINE SIX. 13 Q WOULD YOU AGREE AT THIS POINT MR. SCHMIDT IS NOT 14 TELLING -- IS TELLING THE POLICE THAT BLOOD ON HIS HAND 15 DIDN'T COME FROM SOME KIND OF ACCIDENT BUT SOME SORT OF 16 PHYSICAL ALTERCATION WITH A THIRD PERSON -- OR A SECOND 17 PERSON, I'M SORRY. 18 A THAT IS WHAT HE'S SAYING. HE'S NOT SAYING IT 19 DIDN'T COME FROM AN ACCIDENT. HE'S SAYING IT CAME FROM A 20 MISUNDERSTANDING WITH A FRIEND, CORRECT. HE WASN'T ASKED 21 WHETHER IT CAME FROM AN ACCIDENT IS MY RECOLLECTION. 22 Q GOING DOWN TO -- ON PAGE 10 AND PAGE 11, IT'S 23 CLEAR THAT THE INVESTIGATORS OR THE DETECTIVES AT THIS 24 POINT ARE TRYING TO CLARIFY THE NATURE OF THE 25 MISUNDERSTANDING THAT MR. SCHMIDT HAD WITH HIS FRIEND AND 26 THE NATURE OF THE DISPUTE THAT RESULTED IN MR. SCHMIDT 27 GETTING BLOOD ON HIS HANDS, CORRECT? 28 A I THINK THEY'RE TRYING TO GET INFORMATION FROM 110 1 HIM ABOUT THAT, YES. 2 Q SPECIFICALLY GOING TO PAGE 12, LINE EIGHT, "HOW'D 3 YOU GET BLOOD ON YOUR HAND AS A RESULT OF THIS DISPUTE 4 FROM TWO MONTHS AGO?" AND THEN MR. SCHMIDT AT LINE 5 FOURTEEN SAYS THAT THERE WAS A STRUGGLE AND THAT'S HOW HE 6 GOT THE BLOOD ON HIS HANDS? 7 A LINE FIFTEEN, YEAH. 8 Q SO AT THIS POINT YOU WOULD BE IN AGREEMENT THAT 9 MR. SCHMIDT HAS TOLD THE OFFICERS HE HAS BLOOD ON HIS 10 HANDS AND CAME FROM A STRUGGLE WITH ANOTHER PERSON? 11 A CORRECT. 12 Q BEFORE WE LEAVE PAGE 12, AS THE DETECTIVES ARE 13 ASKING MR. SCHMIDT ABOUT THE STRUGGLE DETECTIVE POMA ASKED 14 "WHERE DID YOU GET THE GUNS IN THE CAR?" DO YOU SEE THAT 15 ON THE BOTTOM OF THE PAGE? 16 A YES. 17 Q AND MR. SCHMIDT SAYS "SEE, NOW, WE'RE GOING TO 18 GET TO THAT. WE'RE GOING TO GET TO THAT." AND HE STARTS 19 TALKING ABOUT A DISPUTE AND HOW HE GOT THE BLOOD ON 20 HIMSELF, CORRECT? 21 A THAT IS WHAT IT APPEARS, YES. 22 Q YOU WOULD AGREE AT THAT POINT MR. SCHMIDT'S THE 23 ONE THAT'S IN CONTROL OF THAT PART OF THE CONVERSATION? 24 A NO, I WOULDN'T AGREE MR. SCHMIDT'S IN CONTROL OF 25 THAT PART OF THE CONVERSATION. IT DEPENDS ON WHAT YOU 26 MEAN BY CONTROL. 27 Q YOU WOULD AGREE HE'S NOT GOING TO ANSWER THE 28 POLICE OFFICERS' QUESTIONS. HE JUST ASKED -- BASICALLY 111 1 WANTS TO TALK ABOUT SOMETHING ELSE? 2 A HE SAYS "SEE, NOW WE'RE GOING TO GET TO THAT." 3 YOU NEED MORE INFORMATION TO FIGURE OUT WHETHER HE WANTS 4 TO TALK ABOUT SOMETHING ELSE. 5 Q IT'S CLEAR HIS WILL IS NOT OVERBORNE IN ANY WAY? 6 A IT MAY BE, YES. 7 Q YOU SAID -- 8 A YES, HIS WILL IS NOT OVERBORNE. I DIDN'T MEAN TO 9 BE CONFUSING. 10 Q WE'LL GET IN MORE SPECIFIC DETAIL ON PAGE 14, 11 LINES FOUR THROUGH 28. 12 A OKAY. 13 Q WHAT MR. SCHMIDT DESCRIBES TO DETECTIVES IS THAT 14 SOMEONE GOT AGGRESSIVE WITH HIM AND HIT HIM IN THE 15 STOMACH, CORRECT? 16 A YEAH, CORRECT. 17 Q AND THAT GOING DOWN TO THE BOTTOM OF THE PAGE HE 18 GOT HIT, HE FELL TO THE GROUND, HE GOT BACK UP AND HE HIT 19 BACK, CORRECT? 20 A THAT'S WHAT IT APPEARS LIKE TO ME, YES. 21 Q YOU WOULD AGREE THAT AT THIS POINT WHAT 22 MR. SCHMIDT IS DESCRIBING TO THE DETECTIVES IS A 23 SELF-DEFENSE SCENARIO? 24 A HE DOESN'T USE THOSE WORDS. 25 Q I REALIZE THAT. BUT -- YOU WERE IMPLYING THINGS 26 BEFORE FROM THINGS HE SAID. ISN'T IT PRETTY OBVIOUS JUST 27 FROM THIS DESCRIPTION THAT THAT'S WHAT HE'S DESCRIBE IS A 28 SELF-DEFENSE SCENARIO? HE GOT HIT, HE FELL TO THE GROUND, 112 1 HE GOT BACK UP AND HE HIT BACK? 2 A YES, BUT HE'S NOT DESCRIBING THE MURDER. 3 Q I AGREE. 4 A SO WHEN YOU SAY SELF-DEFENSE SCENARIO, IT'S 5 IMPORTANT TO MAKE DISTINCTION BETWEEN DESCRIBING 6 SELF-DEFENSE IN AN ALTERCATION AS OPPOSED TO SELF-DEFENSE 7 SCENARIO POLICE USE TO GET A MURDER CONFESSION. 8 Q I AGREE IT'S UNFAIR TO TAKE BITS AND PIECES FROM 9 AN ENTIRE CONFESSION AND SAY THAT IT MEANS JUST ONE THING. 10 YOU DO HAVE TO TAKE THE ENTIRE CONFESSION TOGETHER, AND 11 THAT'S WHAT I'M LEADING UP TO. 12 A THAT WASN'T THE POINT I WAS MAKING, SO YOU'RE 13 AGREEING WITH YOURSELF. SO I -- 14 Q I DO THAT SOMETIMES, TOO. 15 A THE POINT I WAS TRYING TO MAKE IS THAT THIS IS 16 VERY DIFFERENT FROM THE USE -- THE WAY I USED THE TERM 17 SELF-DEFENSE SCENARIO IN MY EARLIER TESTIMONY. HE'S 18 DESCRIBING DEFENDING HIMSELF IN RESPONSE TO AN ATTACK. 19 Q ADMITTEDLY IT'S STILL EARLY IN TIME. WE HAVEN'T 20 GOTTEN TO THE MURDER PART YET, ANY DISCUSSION OF DEAD 21 BODIES OR ANYTHING, CORRECT? 22 A CORRECT. 23 Q IS THE SCENARIO SO FAR BEING DESCRIBED BY 24 MR. SCHMIDT A SELF-DEFENSE SCENARIO THAT HE'S DESCRIBING? 25 A YEAH, GETTING ATTACKED, DEFENDING HIMSELF. 26 Q OKAY. AND ON PAGE 15 AT LINE FIVE, IN FACT HE 27 MAKES A MOTION, IF YOU RECALL IN THE VIDEO, IN FACT THE 28 DETECTIVE DESCRIBES IT, HE MAKES A MOTION WITH HIS HAND AS 113 1 IF HE'S HOLDING SOMETHING, CORRECT? 2 A YEAH. I DON'T REMEMBER IT SPECIFICALLY. IT 3 LOOKS LIKE THE DETECTIVE DOES DESCRIBE IT. 4 Q AND THE DETECTIVES ON PAGE 15 AT LINE FIVE DOWN 5 TO LINE TWELVE ARE SEEKING TO CLARIFY WHAT IT WAS THAT 6 MR. SCHMIDT HAD IN HIS HAND, CORRECT? 7 A GIVE ME A MOMENT HERE. 8 YEAH, LINES EIGHT TO NINETEEN, THEY'RE ASKING 9 WHAT HE WAS HOLDING A KNIFE, A HAMMER, A BAZOOKA. 10 Q HE WAS HOLDING A KNIFE ON LINE TWELVE, CORRECT? 11 A "A KNIFE I WOULD SAY MAYBE YES." 12 Q YOU'RE READING FROM THE TRANSCRIPT WHEN YOU MAKE 13 THAT STATEMENT? 14 A CORRECT. 15 Q AND THEN AT LINE EIGHTEEN, MR. SCHMIDT SAID HE 16 PULLED OUT THE KNIFE AFTER HE HAD BEEN HIT IN THE STOMACH 17 BY THIS PERSON? 18 A LINE EIGHTEEN DID YOU SAY? 19 Q YES, "WHERE WAS THIS KNIFE BEFORE YOU GOT HIT IN 20 THE STOMACH?" "THE KNIFE, I HAD THE KNIFE." 21 A THAT'S WHAT WAS SAID, CORRECT. 22 Q SO YOU AGREE NOW AT THIS POINT HE'S STILL 23 DESCRIBING SELF-DEFENSE SCENARIO, ALTHOUGH NOW HE PUTS 24 HIMSELF IN POSSESSION OF A KNIFE? 25 A YEAH, HE IS SAYING HE HAD NO KNIFE BEFORE HE GOT 26 HIT IN THE STOMACH, CORRECT. 27 Q MY QUESTION WAS: HE'S STILL DESCRIBING 28 SELF-DEFENSE SCENARIO, ALTHOUGH NOW HE'S PUT HIMSELF IN 114 1 POSSESSION OF A KNIFE? 2 A HE'S DESCRIBING HIS RESPONSE TO AN ALTERCATION 3 WHICH SOUNDS LIKE HE'S DEFENDING HIMSELF, CORRECT. 4 Q AND HE'S PUT HIMSELF IN POSSESSION OF A KNIFE? 5 A HE'S AGREED HE WAS HOLDING A KNIFE, CORRECT. 6 Q OKAY. GOING ON TO PAGE 16, LINES TWO THROUGH 7 FIVE, HE TELLS THE DETECTIVE WHEN HE WAS HIT IN THE 8 STOMACH, HE WENT TO THE GROUND, TOOK THE AIR OUT OF HIM. 9 HE WAS WEAK. AND STARTING AT LINE ELEVEN, HE GOT BACK UP, 10 HE WAS MAD BECAUSE HE WAS BLAMED FOR SOMETHING. HE WAS 11 BLAMED FOR SOMETHING HE DIDN'T DO; IS THAT CORRECT? 12 A YEAH, HE AGREES IN THE BEGINNING THAT HE GOT HIT 13 IN THE STOMACH AND WENT DOWN TO THE GROUND AND EXPLICITLY 14 SAID HE GOT MAD ON LINE ELEVEN FOR BEING BLAMED FOR 15 SOMETHING HE DIDN'T DO, CORRECT. 16 Q GOING TO PAGE 17, LINES ONE THROUGH TEN, HE SAYS 17 WHAT HE DID IS HE SWUNG WITH A KNIFE AND CUT THE PERSON 18 WITH A KNIFE AND CUT THE PERSON WITH A KNIFE IN THE 19 THROAT? 20 A IT LOOKS LIKE -- SOUNDS LIKE HE'S SAYING THAT HE 21 SCRATCHED THE PERSON IN THE FACE. THAT'S WHAT IT SOUNDS 22 LIKE, HIS ACTUAL WORDS. 23 Q AT LINE NINE, IT SAYS THAT MR. SCHMIDT SAYS 24 "RIGHT HERE, RIGHT AROUND HERE." DETECTIVE FLETCHER SAYS 25 "SO YOU'RE SAYING RIGHT AT THE THROAT?" MR. SCHMIDT "YES, 26 RIGHT AROUND HERE, RIGHT AROUND HERE, SCRATCH IT, OR RIGHT 27 HERE IN THE FACE WHERE IT SCRATCH IT." 28 A THAT'S WHAT'S SAID. I THINK DETECTIVE ASKED IF 115 1 IT'S IN THE THROAT, HE AGREES, CLARIFYING IT'S REALLY IN 2 THE FACE. IT'S AMBIGUOUS, IN THE THROAT OR FACE, YES. 3 Q IT DOES GET MORE SPECIFIC AS WE MOVE DOWN THE 4 PAGE IN THE TRANSCRIPT, LINE EIGHTEEN, HE SWUNG IT TWO 5 TIMES AND MADE CONTACT WITH THE BODY, CORRECT? 6 A YES. 7 Q SO UP TO THIS POINT, I THINK WE'RE IN AGREEMENT 8 THAT MR. SCHMIDT'S DESCRIBING SELF-DEFENSE SCENARIO AND 9 THAT HE'S SLASHED SOMEONE WITH THE KNIFE, HITTING THEM IN 10 THE FACE, IN THE THROAT, WITH A KNIFE; WOULD YOU AGREE? 11 A I THINK IT'S MISLEADING TO CALL IT SELF-DEFENSE 12 SCENARIO AND SUGGEST IT'S SIMILAR TO WHAT I WAS TALKING -- 13 Q I WASN'T SUGGESTING IT WAS SIMILAR TO ANYTHING. 14 YOU DESCRIBED, DR. LEO, I THINK THAT'S THE WHOLE POINT OF 15 THIS. AND WE'RE -- I'M NOT SUGGESTING IT'S SOMETHING 16 YOU -- 17 A I WOULD SAY YOUR USE OF THE TERM SELF-DEFENSE 18 SCENARIO IS MISLEADING. 19 Q YOU DON'T THINK WHAT'S BEEN DESCRIBED SO FAR BY 20 MR. SCHMIDT IS AN ACTION THAT HE TOOK IN SELF-DEFENSE? 21 A HE'S RESPONDING, YES, IN SELF-DEFENSE. 22 Q YOU DO AGREE? 23 A I THINK SELF-DEFENSE SCENARIO IS MISLEADING. 24 Q GOING TO PAGE 18, AT LINE FOURTEEN, DETECTIVE 25 FLETCHER ASKS MR. SCHMIDT IF ANYONE WAS WITH HIM, CORRECT? 26 A CORRECT. 27 Q AND THEN MOVING DOWN TO LINE 19, HE SAYS HE 28 STUDIED A LITTLE BIT OF LAW, AND DOWN TO 22, "YOU KNOW, I 116 1 WOULDN'T WANT TO GET A PERSON INVOLVED IN THAT, YOU KNOW 2 WHAT I'M SAYING?" 3 A CORRECT, HE SAYS ALL THOSE THINGS. 4 Q SO YOU WOULD AGREE THEN ALSO AT THIS POINT 5 MR. SCHMIDT'S TRYING TO PROTECT THE PERSON WHO WAS WITH 6 HIM AT THE SCENE? 7 A I THINK THAT'S A REASONABLE INFERENCE. 8 Q OKAY. AND SO WITH THAT REASONABLE INFERENCE, 9 IT'S ALSO A REASONABLE INFERENCE THAT HIS WILL IS NOT 10 OVERBORNE, HE'S STILL IN CONTROL? 11 A AGAIN, IT DEPENDS ON WHAT YOU MEAN BY CONTROL, 12 BUT I WOULD SAY TO THIS POINT HIS WILL -- THERE HAD NOT 13 BEEN THREATS OR PROMISE. 14 Q EVEN AFTER HE DESCRIBES THIS SELF-DEFENSE 15 SCENARIO, ALTHOUGH A DIFFERENT LEVEL THAN THE ONE YOU 16 DESCRIBED? 17 A AFTER HE'S DESCRIBED THIS ALLEGED EVENT, CORRECT. 18 Q GOING TO PAGE 19, THE OFFICERS ARE ASKING 19 MR. SCHMIDT WHAT HAPPENED TO THE PERSON AFTER THEY GOT 20 SLASHED IN THE THROAT. DO YOU SEE THAT AT LINE EIGHT? 21 A YES. 22 Q AND AT LINE SEVENTEEN HE SAYS, "YEAH, THEY CRIED. 23 THAT'S FOR SURE"? 24 A HE SAYS THAT AT LINE SEVENTEEN, CORRECT. 25 Q AND EIGHTEEN, "DID THEY SAY ANYTHING TO YOU?" HE 26 REPLIES, "YEAH, THEY JUST SAID, YOU KNOW -- I MEAN, I 27 MEAN, THEY JUST ASKED ME WHY. I DON'T KNOW WHAT YOU 28 MEAN. YOU KNOW, I'M LIKE WHY, THEY'RE ALL WHY, AND I 117 1 DIDN'T ANSWER BACK. I DIDN'T ANSWER BACK. YOU KNOW, I 2 DIDN'T ANSWER BACK WHY, YOU KNOW." AND THEN LINE 26 HE 3 TELLS YOU WHY, DOESN'T HE? 4 A HE SAYS LINE 26 -- YEAH. 5 Q I WAS JUST TRYING TO DEFEND MYSELF? 6 A RIGHT. 7 Q SO YOU AGREE THAT IT'S MR. SCHMIDT THAT SAYS THAT 8 THIS WAS SELF-DEFENSE, THAT HE WAS THE ONE THAT SLASHED 9 SOMEBODY WITH A KNIFE IN THE THROAT OR IN THE FACE IN 10 SELF-DEFENSE, NOT THE DETECTIVES? 11 YEAH? 12 A I AGREE THAT RIGHT HERE HE'S SAYING HE'S TRYING 13 TO DEFEND HIMSELF IN HIS DESCRIPTION OF SCENARIO, NOT THE 14 DETECTIVES. THAT'S CORRECT. 15 Q THANK YOU. ON PAGE 20, AT LINE 22 OR 23, 16 MR. SCHMIDT FOR THE FIRST TIME ADMITS THAT THE PERSON HE 17 SLASHED WAS A FEMALE? 18 A HE SAYS IT WAS A FEMALE, CORRECT. 19 Q WE GO FOR ANOTHER, LOOKS LIKE -- I'M NOT GOING TO 20 GO THROUGH MORE PAGES ON THE FIRST VIDEO, BUT PAGE 22 TO 21 29, ANOTHER SEVEN PAGES BEFORE WE GET TO THE SECOND VIDEO? 22 A CORRECT. 23 Q AND THEN WITH THE SECOND VIDEO, WE GO THROUGH 24 ANOTHER TWELVE PAGES BEFORE WE GET TO THE PLACE WHERE YOU 25 SAY IS THE FIRST EVIDENCE OF POLICE INDUCEMENT WITH THE 26 SELF-DEFENSE THEORY? 27 A CORRECT. 28 Q WE WENT THROUGH A LOT OF QUESTIONS ON DIRECT 118 1 EXAMINATION ABOUT STATEMENTS THAT WERE MADE BY DETECTIVE 2 POMA OR DETECTIVE FLETCHER TO MR. SCHMIDT INVOLVING THE 3 CONCEPT OF SELF-DEFENSE, CORRECT? 4 A AND CONSEQUENCES ALSO OF ADMITTING TO 5 SELF-DEFENSE SCENARIO. 6 Q AND I WROTE DOWN THE SIGNIFICANT -- THE AREAS 7 THAT YOU BELIEVED WERE SIGNIFICANT. OKAY. 8 SO STARTING ON PAGE 13, DETECTIVE POMA TELLS 9 MR. SCHMIDT THAT HE WAS DRIVING AROUND IN A LADY'S CAR AND 10 THAT LADY HAD BEEN MURDERED. IS THAT AGREED -- WOULD 11 YOU AGREE WITH THAT SUMMARY? 12 A HE MAY SAY THAT; BUT IF YOU'RE ASKING ME WHY I 13 THOUGHT IT WAS -- PAGE 13 WAS SIGNIFICANT, I THINK WHAT I 14 SAID WAS THAT ON THE TOP OF PAGE 12 HE HAD TOLD 15 MR. SCHMIDT TO HELP HIMSELF OUT AND THEN HE SUGGESTS THAT 16 SHE CAME AT HIM AND HE JUST DEFENDED HIMSELF. 17 Q "IF IT HAPPENED -- IF IT WAS A SELF-DEFENSE TYPE 18 THING, THEN LET ME KNOW." THAT'S WHAT HE SAYS TO 19 MR. SCHMIDT, CORRECT? 20 A MAYBE I MISUNDERSTAND YOUR QUESTION. ARE YOU 21 TALKING ABOUT PAGE 13? 22 Q I AM TALKING ABOUT PAGE 13, LINES ONE THROUGH 23 THREE. THAT'S WHERE YOU SAID THE FIRST EVIDENCE OF 24 INDUCEMENT OR SUGGESTION OF A SELF-DEFENSE THEORY BY THE 25 DETECTIVES OCCURRED. 26 A RIGHT. RIGHT. "IF THERE WAS SOMETHING THAT 27 HAPPENED AT THE HOUSE THAT YOU GOT INTO A LITTLE ARGUMENT 28 AND SHE CAME AT YOU AND YOU JUST DEFENDED YOURSELF, I NEED 119 1 TO KNOW THAT." RIGHT. AND LATER, IF IT HAPPENED, IT WAS 2 SELF-DEFENSE TYPE THING -- 3 Q "IF IT WAS SELF-DEFENSE TYPE THING, THEN LET ME 4 KNOW"? 5 A CORRECT. 6 Q HE'S NOT TELLING HIM -- THE DETECTIVE'S NOT 7 TELLING MR. SCHMIDT IT WAS A SELF-DEFENSE THING, CORRECT? 8 HE STARTS IT WITH "IF"? 9 A CORRECT, HE'S SUGGESTING IT'S A POSSIBILITY. 10 Q HE'S ASKING IF THAT'S WHAT HAPPENED? 11 A WELL, HE'S SAYING IF IT HAPPENED, LET ME KNOW. 12 Q RIGHT. 13 A AFTER SAYING I THINK YOU NEED TO HELP YOURSELF 14 OUT. 15 Q SURE. 16 ANOTHER SIGNIFICANT SECTION WAS PAGE 15, LINE 17 THREE, "IF SOMETHING HAPPENED THERE AND YOU WERE HAVING TO 18 DEFEND YOURSELF AGAINST HER, THEN LET US KNOW"? 19 A I THINK I SAID THE NEXT ONE WAS ACTUALLY PAGE 14, 20 LINES 25 AND 26, BEFORE I MENTIONED THE ONE YOU JUST 21 REFERRED TO. 22 Q LINE 25, DETECTIVE POMA SAYS, "I'M JUST SAYING IF 23 THERE WAS SELF-DEFENSE AT THE HOUSE, HELP US OUT"? 24 A "IT'S TIME TO START HELPING YOURSELF OUT", 25 CORRECT. AND LIKE YOU POINTED OUT, THE NEXT ONE ON PAGE 26 15, LINE THREE, HE REFERENCES SELF-DEFENSE AGAIN. 27 Q I SEE. THOSE TWO SECTIONS THEN? 28 A CORRECT. 120 1 Q SO THE DETECTIVES ARE STILL TALKING ABOUT THE 2 SELF-DEFENSE SCENARIO THAT MR. SCHMIDT HIMSELF INVOKED 3 EARLIER IN THE INTERROGATION OR INTERVIEW? 4 MR. J. PETERSEN: MISSTATES THE TESTIMONY. 5 MR. FAULDER: IT'S A QUESTION. 6 MR. J. PETERSEN: IT WASN'T STATE AS A QUESTION. 7 THE COURT: IT'S OVERRULED. 8 THE WITNESS: I'M NOT SURE IF THEY'RE TALKING 9 ABOUT THE SAME THING HERE AS HE WAS TALKING ABOUT THERE. 10 IT SEEMS TO ME THAT THERE HE WAS TALKING ABOUT ALLEGED 11 DISPUTE WITH A FRIEND, AND HERE IS AFTER THE VICTIM 12 CHRISTA HAS BEEN IDENTIFIED. AND SO THEY MAY BE ENTIRELY 13 DIFFERENT INCIDENTS. 14 Q (BY MR. FAULDER) THAT'S A FAIR STATEMENT, 15 DR. LEO; BECAUSE IF YOU'RE NOT SURE, IT'S FAIR TO ASSUME 16 THE DETECTIVES WEREN'T SURE EITHER, CORRECT? 17 A I DON'T KNOW WHAT THE DETECTIVES WOULD HAVE OR 18 WOULD NOT HAVE ASSUMED. 19 Q IT'S REASONABLE FOR THE DETECTIVES TO TRY AND 20 FIND OUT IF THIS IS THE SAME PERSON THAT MR. SCHMIDT 21 ADMITTED SLASHING WITH THE KNIFE TWICE EARLIER IN THE SAME 22 INTERVIEW? 23 MR. J. PETERSEN: IT'S BEYOND THE SCOPE OF 24 EXPERTISE TO KNOW WHAT'S REASONABLE FOR AN OFFICER TO DO. 25 WHAT THIS EXPERT'S TESTIMONY MUST RELATE TO IS WHETHER OR 26 NOT A TACTIC IS COERCIVE. 27 THE COURT: HE'S ASKED HIM IF IT'S REASONABLE TO 28 EXPECT THAT THE OFFICER WOULD WANT TO CLEAR THAT UP. 121 1 MR. J. PETERSEN: OR WHETHER THE -- 2 MR. FAULDER: THAT IS IT, YOUR HONOR. 3 THE COURT: THE OBJECTION'S OVERRULED. 4 MR. FAULDER: THANK YOU. 5 THE WITNESS: THE OFFICER THINKS -- IF THE 6 OFFICER THINKS THAT TWO EVENTS ARE THE SAME AND THIS IS 7 CLARIFYING THAT EVENT, THAT WOULD BE REASONABLE. I SEEM 8 TO REMEMBER THAT THEY WERE ACCUSING HIM OF LYING BEFORE WE 9 GOT TO THE OFFICER'S PRESENTATION OF THE SELF-DEFENSE 10 SCENARIO, WARNING HIM TO HELP HIMSELF OUT. I GOT THE 11 IMPRESSION THE OFFICER DIDN'T BELIEVE THAT INITIAL 12 DESCRIPTION THAT MR. SCHMIDT HAD GIVEN. 13 Q (BY MR. FAULDER) I'M CLEAR IN YOUR IMPRESSION; 14 BUT IT'S STILL REASONABLE FOR OFFICERS TO FOLLOW UP IF 15 THEY ARE AS UNSURE THAT THIS IS THE SAME EVENT AS YOU ARE? 16 MR. J. PETERSEN: YOUR HONOR, MY OBJECTION IS 17 UNREASONABLE HYPOTHETICAL. WE'VE ALREADY HEARD TESTIMONY 18 THAT THE OFFICER ACCUSES HIM OF LYING MULTIPLE TIMES AND 19 SAYS IF IT'S SELF-DEFENSE, LET ME KNOW. IT'S OBVIOUS THE 20 OFFICER DOESN'T BELIEVE HIM. IT'S CLEAR IN THE RECORD. 21 THE COURT: THE OBJECTION'S OVERRULED. THIS IS 22 CROSS. 23 THE WITNESS: I THINK YOU ASKED THE SAME QUESTION 24 AND I WOULD GIVE THE SAME ANSWER, WHICH IS -- I AM JUST 25 REPEATING MYSELF, BUT IT'S THE SAME SINCE YOU ASK THE SAME 26 QUESTIONS. 27 Q (BY MR. FAULDER) MAYBE I MISUNDERSTOOD YOUR 28 ANSWER THEN. I THOUGHT YOU SAID YOU DIDN'T KNOW OR 122 1 WEREN'T SURE? 2 A THE FIRST STORY THAT HE GIVES APPEARS TO BE ABOUT 3 A DISPUTE WITH A FRIEND. IN THAT FIRST INTERROGATION 4 WHERE HE DESCRIBES WHAT YOU'VE MENTIONED AND THE OFFICERS, 5 MY RECOLLECTION IS THEY DON'T BELIEVE HIM, THEY ACCUSE HIM 6 OF LYING. AND WHEN WE GET TO SELF-DEFENSE HERE ON PAGE 15 7 OF THE SECOND VIDEOTAPE, IT'S NOT MY IMPRESSION THAT THEY 8 WERE TRYING TO CLARIFY WHAT WAS SAID ON PAGE EIGHT OR 20 9 OF THE FIRST ONE, BEFORE THEY ESSENTIALLY TURN THE 10 QUESTIONS ACCUSATORIALLY AND ACCUSE HIM OF COMMITTING THIS 11 CRIME. SO, YES, IT WOULD BE REASONABLE IF THE PREMISE -- 12 YOUR PREMISE IS ACCURATE, BUT I DISAGREE WITH YOUR 13 PREMISE. 14 Q WE ASKED AT THE BEGINNING IF A CONCLUSION IS ONLY 15 AS GOOD AS THE PREMISE ON WHICH IT'S BASED. WE AGREED 16 UPON THAT EARLIER? 17 A I DIDN'T AGREE UPON THAT. I SAID AND THE 18 CONFESSION AND THE EVIDENCE. 19 Q SO THE ANSWER, YES, IT WOULD BE REASONABLE FOR 20 THE OFFICERS TO TRY AND CLARIFY WHAT THEY'RE UNSURE ABOUT 21 IN TERMS OF WHETHER OR NOT THIS IS THE SAME PERSON THAT 22 WAS ATTACKED THAT MR. SCHMIDT HAD DESCRIBED EARLIER? 23 A IF THAT'S WHAT THEY WERE REALLY DOING, THAT WOULD 24 BE REASONABLE. I DON'T THINK THAT'S WHAT THEY WERE REALLY 25 DOING. 26 Q THANK YOU. TURNING TO PAGE 15, MAYBE THIS MIGHT 27 HELP YOU IN UNDERSTANDING WHETHER OR NOT THEY WERE ALL 28 ACTUALLY TALKING ABOUT THERE EARLIER -- 123 1 A DID YOU SAY 16? 2 Q I SAID 15. AT LINE TEN. 3 A I'M SORRY, I DIDN'T HEAR. 4 Q THAT'S OKAY. I APOLOGIZE. LINE TEN, DETECTIVE 5 FLETCHER, "YOU'RE TELLING US ABOUT A DISAGREEMENT YOU HAD 6 WITH A PERSON." "AND ALL OF THIS SOUNDS" -- NOW AT 7 FOURTEEN -- "AND I CAN UNDERSTAND IF IT'S CHRISTA, THEN 8 LET US KNOW." 9 DOES THAT SOLVE THE CONFUSION FOR YOU THAT THEY 10 ARE TRYING TO FIND OUT IF IT'S THE SAME PERSON THAT 11 MR. SCHMIDT SAID THAT HE HAD THE DISAGREEMENT WITH AND 12 ENDED UP SLASHING EARLIER IN THE CONVERSATION? 13 A NO. 14 Q "YOU'RE TELLING US ABOUT A DISAGREEMENT YOU HAD 15 WITH A PERSON", AND THEN AT FOURTEEN "AND ALL THIS 16 SOUNDS -- AND I CAN UNDERSTAND IF IT'S CHRISTA, THEN LET 17 US KNOW." TRYING TO FIND OUT IF IT'S CHRISTA AT THAT 18 POINT, CORRECT? 19 A THAT'S WHAT THEY'RE ASKING HIM, YES. 20 Q TO FIND OUT IF IT'S THE SAME PERSON HE HAD THE 21 DISAGREEMENT WITH EARLIER? 22 A I DON'T KNOW IF THAT'S TRUE OR NOT. IT COULD 23 BE. IT COULD NOT BE. I DON'T THINK THIS IS CLEAR. JUST 24 YOUR SUGGESTIONS. 25 Q MAYBE PAGE 16 WILL HELP YOU OUT ON THAT THEN, 26 LINE FOURTEEN. "IS THIS THE PERSON THAT YOU HAD THE 27 DISAGREEMENT WITH?" MR. SCHMIDT, "I HAD A DISAGREEMENT 28 WITH A PERSON, YES." "BUT YOU SAID A FEMALE." 124 1 MR. SCHMIDT, "YES, A FEMALE." "WAS IT THE FEMALE INSIDE 2 THIS HOUSE? WAS IT IN CHRISTA'S HOUSE?" "JOHANN, HELP 3 YOURSELF OUT." DO YOU SEE THAT ON PAGE 16? 4 A YES. 5 Q ISN'T IT CLEAR TO YOU AT THIS POINT THAT THE 6 DETECTIVES ARE TRYING TO FIND OUT IF IT'S THE SAME PERSON 7 THAT MR. SCHMIDT SAID THAT HE SLASHED IN SELF-DEFENSE 8 EARLIER IN THE CONVERSATION? 9 A NO, BECAUSE I THINK THE INTERROGATION HAS 10 CHANGED. IT'S BECOME AN INTERROGATION. AND WHAT'S BEEN 11 INTRODUCED AFTER THAT ARE NOT ONLY THAT, HE'S -- THEY KEEP 12 TELLING HIM HE'S LYING, BUT THEY SAY TO HIM, PAGE 11, THAT 13 YOU TOOK A CAR FROM A LADY THAT'S BEEN KILLED. THAT'S 14 WHAT CHANGES. AND SO THE REFERENCE TO CHRISTA, WHICH 15 OCCURS AT THE END OF VIDEOTAPE ONE, IF I REMEMBER 16 CORRECTLY, IS THEN CARRIED FORWARD AND THEY'RE TALKING 17 ABOUT CHRISTA AND THEY'RE TRYING TO GET HIM TO ADMIT TO 18 KILLING CHRISTA. IT DOESN'T SEEM TO ME THEY'RE TRYING TO 19 GET CLARIFICATION FROM HIS EARLIER DISCUSSION. I THINK 20 THEY'VE MOVED BEYOND THAT. 21 Q I SEE. IT'S YOUR BELIEF THAT WHEN DETECTIVE 22 FLETCHER SAID IS THIS THE PERSON YOU HAD THE DISAGREEMENT 23 WITH, YOU'RE SAYING THAT MR. SCHMIDT -- OR THE DETECTIVES 24 ARE TRYING TO GET HIM TO CONFESS TO KILLING CHRISTA? 25 A YES. ADMIT TO IT, OF COURSE, YES. 26 Q TALKING ABOUT WHETHER OR NOT NOW MR. SCHMIDT'S 27 WILL HAS BEEN OVERBORNE BY THE INTERVIEWER OR 28 INTERROGATOR. 125 1 AND IF YOU TURN TO PAGE 23, STARTING AT LINE 2 EIGHT, DETECTIVE POMA, "WHAT ARE WE SUPPOSED TO THINK? 3 WHAT ARE WE SUPPOSED TO THINK?" MR. SCHMIDT, "YOU'RE 4 SUPPOSED TO THINK, AND I KNOW WHAT YOU THINK, TOO." 5 MR. SCHMIDT, "YOU GUYS ARE THINKING, OKAY, WE'RE GOING TO 6 TRY AND GET THIS GUY TO TELL US THE TRUTH BECAUSE TO SAVE 7 HIMSELF BECAUSE WE ALREADY KNOW THE TRUTH. WE JUST WANT 8 TO HEAR IT FROM HIM. YES OR NO? AND I'M CORRECT." 9 THAT'S WHAT HE SAID, ISN'T IT? 10 A CORRECT, THAT'S WHAT HE SAYS. 11 Q PRETTY CLEAR TO YOU AT THIS POINT MR. SCHMIDT 12 STILL IS IN CONTROL OF HIMSELF AND HAS -- HIS WILL HAS NOT 13 BEEN OVERBORNE BY ANYTHING THE OFFICERS HAVE DONE? 14 A I THINK IT'S A CLOSE CALL. THE SELF-DEFENSE 15 SCENARIO HAS ALREADY BEEN USED, BUT THEY HAVEN'T 16 EXPLICITLY TIED IT TO NO PUNISHMENT THE WAY THEY DO AFTER 17 THAT COMMON THEME JUST QUOTED; SO I WOULD SAY IT DEPENDS 18 ON WHETHER YOU -- ONE CHARACTERIZES THE REFERENCE TO 19 SELF-DEFENSE PRIOR TO THAT AS SUFFICIENTLY COMMUNICATING 20 THE MESSAGE OF LENIENCY IF YOU GO FOR THE SELF-DEFENSE 21 THEME. 22 Q I DON'T KNOW WHAT QUESTION YOU'RE ANSWERING. I 23 WAS ASKING IF YOU BELIEVE AT THIS POINT THAT IT'S TRUE 24 MR. SCHMIDT'S WILL HAS NOT BEEN OVERBORNE AT THIS POINT. 25 A AND THAT'S THE QUESTION I WAS ANSWERING. 26 Q I'M SORRY, I MISUNDERSTOOD. 27 A THE ANSWER WAS I THINK IT'S A CLOSE CALL. AND 28 THE WHETHER OR NOT ONE BELIEVES HIS WILL IS OVERBORNE 126 1 DEPENDS ON WHETHER HE UNDERSTANDS THE MESSAGE AT THAT 2 POINT FOR THE SELF-DEFENSE SCENARIO THEME, AND ITS 3 IMPLICATION OF LENIENCY. AND THAT MESSAGE IS SPELLED OUT 4 MORE EXPLICITLY AFTER WHAT YOU QUOTED. SO IT'S THE SAME 5 ANSWER TO THE SAME QUESTION. 6 Q SO YOU DON'T KNOW IF HIS WILL IS OVER -- YOU 7 DON'T HAVE AN OPINION AS TO WHETHER OR NOT HIS WILL IS 8 OVERBORNE? 9 A MY OPINION AS TO THAT POINT, THIS INTERROGATION 10 IS COERCIVE, IT'S MADE COERCIVE BY THE USE OF SELF-DEFENSE 11 SCENARIO TECHNIQUES. THAT STARTS ON PAGE 13. 12 Q WE'RE TALKING ABOUT WHETHER OR NOT HE'S IN FACT 13 BEEN COERCED, TOO; AREN'T WE? 14 A THEY GO TOGETHER, YES. 15 Q DR. LEO, EVERYTHING ABOUT AN INTERROGATION IS 16 COERCIVE THOUGH, RIGHT? 17 A NO, I DON'T -- WOULDN'T AGREE WITH THAT. 18 Q YOU DON'T THINK IF YOU PUT A SUSPECT IN A LOCKED 19 ROOM WITH TWO DETECTIVES, THAT'S NOT COERCIVE? 20 A I THINK IT DEPENDS ON WHETHER OR NOT THE 21 PERSON -- IT'S A PSYCHOLOGICAL MATTER. DEPENDS ON WHETHER 22 THE PERSON PERCEIVES THEY HAVE CONTROL AND WHETHER OR NOT 23 COERCIVE TECHNIQUES ARE USED ON THEM; BUT, NO, I THINK A 24 PROPERLY CONDUCTED INTERROGATION IS NOT NECESSARILY 25 COERCIVE. 26 Q AREN'T WE TALKING ABOUT IMPROPER AND PROPER 27 LEVELS OF COERCION RATHER THAN JUST THE PRESENCE OR 28 ABSENCE OF ANY COERCION? 127 1 A NO, I WOULD SAY WE'RE TALKING ABOUT PRESENCE OR 2 ABSENCE OF COERCION. I DON'T THINK PROPER LEVELS OF 3 COERCION -- 4 Q OKAY. 5 A I THINK COERCION IS IMPROPER. 6 Q YOU THINK ALL COERCION IS IMPROPER? 7 A CORRECT. AS A MATTER OF LAW, YES. 8 Q IT'S YOUR OPINION THAT AS A MATTER OF LAW 9 COERCION IS IMPROPER? 10 A CORRECT. 11 Q AND THAT'S AS AN EXPERT FROM YOUR J.D. DEGREE? 12 A I THINK YOU CHALLENGED THOSE CREDENTIALS EARLIER. 13 Q I AM JUST ASKING IF THAT'S WHAT YOU'RE BASING IT 14 ON, YOUR J.D. DEGREE? 15 A BASED ON MY LEGAL KNOWLEDGE THAT UNDER THE 14TH 16 AMENDMENT ALL COERCION DURING INTERROGATION, WHETHER 17 PHYSICAL OR PSYCHOLOGICAL, IS LEGALLY IMPROPER. 18 Q IT'S CLEAR TO YOU AT THIS POINT, EVEN THOUGH YOU 19 THINK THIS IS A COERCIVE INTERROGATION BY PAGE 23, THAT 20 MR. SCHMIDT HAS NOT CONFESSED TO KILLING ANYONE IN 21 SELF-DEFENSE? 22 A NOT YET. 23 Q OKAY. SO YOU THINK THAT HE'S COERCED EVEN BEFORE 24 HE CONFESSES TO ANYTHING INVOLVING SELF-DEFENSE? 25 A CORRECT. 26 Q IS IT YOUR BELIEF THAT IT'S A MISSTATEMENT OF THE 27 LAW THAT JUSTIFIABLE SELF-DEFENSE IS A COMPLETE DEFENSE TO 28 HOMICIDES OR TO MURDER? 128 1 A IT IS A DEFENSE UNLESS THERE'S A FELONY MURDER, 2 TO MY KNOWLEDGE. I CAN'T THINK OF ANOTHER SITUATION IN 3 WHICH SELF-DEFENSE WOULD NOT BE JUSTIFIABLE. IT MAY ALSO 4 BE CONSIDERED AN EXCUSE IN SOME PLACES AND NOT A DEFENSE. 5 I DON'T KNOW WHETHER IT'S AN EXCUSE OR JUSTIFICATION. I 6 THINK IT'S A JUSTIFICATION ABSENT FELONY MURDER. I CAN'T 7 THINK OF ANY OTHER CIRCUMSTANCES IN WHICH IT WOULD NOT 8 EITHER BE AN EXCUSE OR JUSTIFICATION. THOUGH YOU MAY 9 CORRECT ME IF I'M WRONG. 10 Q I WOULD ONLY CORRECT YOU IF YOU WERE WRONG. 11 WHAT EVIDENCE DO YOU HAVE THAT THE FELONY MURDER 12 RULE HAD ANYTHING TO DO WITH THE INTERROGATION THAT 13 SELF-DEFENSE BECAME A QUESTION THAT MR. SCHMIDT POSED TO 14 THE DETECTIVE? 15 MR. J. PETERSEN: VAGUE AS TO WHAT THE QUESTION 16 IS. 17 THE COURT: AS TO WHAT MR. FAULDER'S QUESTION IS 18 OR THE QUESTION THAT WAS -- 19 MR. J. PETERSEN: I GUESS WHAT I'M SAYING, I 20 DON'T UNDERSTAND THE QUESTION THAT SAYS WHETHER THE FELONY 21 MURDER RULE HAD ANYTHING TO DO WITH THE INTERROGATION. 22 I'M NOT SURE OF THE QUESTION. 23 THE COURT: THE OBJECTION'S OVERRULED. 24 DO YOU UNDERSTAND THE QUESTION? 25 THE WITNESS: I WASN'T SURE THAT I DID. 26 MR. FAULDER: CAN I ASK THE COURT REPORTER TO 27 READ IT BACK? 28 THE COURT: WOULD THE COURT REPORTER READ IT 129 1 BACK. 2 (RECORD READ.) 3 THE COURT: IT WAS SOMEWHAT AWKWARD, BUT -- DO 4 YOU WANT TO REPHRASE IT? 5 MR. FAULDER: YES, I THINK I SHOULD. 6 Q (BY MR. FAULDER) DR. LEO, WHEN THE DETECTIVES 7 ARE INTERROGATING OR INTERVIEWING MR. SCHMIDT, WHAT 8 EVIDENCE DID YOU HAVE THAT THE FELONY MURDER RULE WAS 9 SOMETHING THAT SHOULD HAVE COME INTO PLAY DURING THAT 10 INTERROGATION? 11 MR. J. PETERSEN: YOUR HONOR, AGAIN MY OBJECTION 12 AS TO WHAT SHOULD COME INTO PLAY, I -- HOW DOES THAT 13 RELATE TO DR. LEO'S CREDENTIALS? 14 THE COURT: BECAUSE THERE'S BEEN A LOT OF TALK 15 ABOUT THE FELONY MURDER RULE. IT'S CHARGED AS -- AS I 16 UNDERSTAND THE TRANSCRIPT, IT WASN'T MENTIONED AT ALL TO 17 THE DEFENDANT DURING THE INTERROGATION PROCESS. 18 I THINK THAT'S KIND OF THE POINT OF THE QUESTION, 19 ISN'T IT? 20 MR. FAULDER: YES, YOUR HONOR. 21 THE COURT: OBJECTION'S OVERRULED. 22 MR. J. PETERSEN: IF I MAY EXPLAIN, THE FACT IT 23 WASN'T MENTIONED IS THE PROBLEM. YOU CAN'T PROVE WHETHER 24 SOMETHING WAS INVOLVED WHEN THE PROBLEM IS IT WASN'T 25 INVOLVED. THAT'S EXACTLY THE DIFFICULTY. THESE OFFICERS 26 ARE TELLING THIS MAN, HEY, YOU KNOW, IF YOU JUST ADMIT 27 UNDER THE FELONY MURDER RULE OR UNDER THE SELF-DEFENSE 28 SCENARIO THAT YOU KILLED THIS WOMAN, YOU CAN GO HOME, YOU 130 1 WON'T GO TO PRISON. AND LOW AND BEHOLD, OF COURSE, WE ALL 2 KNOW IF HE DOES THAT, WHICH IS WHAT HE ULTIMATELY ENDED UP 3 DOING THAT, IS THE FACT THEY DID NOT TELL HIM THAT THEY 4 AFFIRMATIVELY LIED TO HIM ABOUT THAT. THAT IS COERCIVE. 5 THE COURT: HOW DOES IT BECOME A LIE IF IT NEVER 6 WAS RAISED AS AN ISSUE? 7 MR. FAULDER: IF THE DETECTIVES WEREN'T AWARE OF 8 THOSE FACTS, THAT MIGHT GIVE RISE TO THAT. 9 THE COURT: THE OBJECTION'S OVERRULED. 10 THE WITNESS: OKAY. IF I UNDERSTAND THE 11 QUESTION, THERE IS NO EVIDENCE. YOU ASKED WHAT'S THE 12 EVIDENCE THAT THERE IS ANY MENTION EXPLICITLY OF FELONY 13 MURDER RULE IN THIS INTERROGATION. I HOPE I'VE ANSWERED 14 THE QUESTION. I'VE TRIED TO. 15 Q (BY MR. FAULDER) I'M SORRY. I THOUGHT YOU 16 RESTATED THE QUESTION. COULD YOU REPEAT IT AGAIN? 17 A YEAH. I THINK YOU ASKED WHAT IS THE EVIDENCE OF 18 FELONY MURDER RULE IN THIS INTERROGATION, AND MY ANSWER TO 19 YOUR QUESTION IS THERE IS NO EVIDENCE THAT THE FELONY 20 MURDER RULE WAS EXPLICITLY USED IN THIS INTERROGATION. 21 Q THANK YOU. GOING TO PAGE 27 NOW, WHEN DETECTIVE 22 POMA, AT LINE TWELVE, SAYS TO MR. SCHMIDT, "YOU HAVE THE 23 RIGHT TO DEFEND YOURSELF." YOU SEE THAT LINE? 24 A YES. 25 Q NOW, GO UP TO PAGE OR LINE FOUR WHEN MR. SCHMIDT 26 POSES A HYPOTHETICAL. "THEY GO AND CONFRONT THE PERSON, 27 TRY AND WORK IT OUT. THE PERSON DOESN'T WANT TO WORK IT 28 OUT. FIGHT BREAKS OUT OR SOMETHING LIKE THAT, AND THIS 131 1 PERSON GETS TWEAKED OR SOMETHING AND CRAZY AND GETS WACKO 2 OR SOMETHING AND THAT PERSON HAS TO DEPEND THEMSELF." 3 A YEAH. 4 Q ISN'T DETECTIVE POMA ABSOLUTELY RIGHT THAT HE HAS 5 THE RIGHT TO DEFEND HIMSELF TO THAT SCENARIO? 6 A YES, HE'S RIGHT, BUT -- 7 Q THANK YOU. THANK YOU. 8 A IT'S IN RESPONSE TO WHAT THE DETECTIVE SAYS 9 EARLIER IN THERE, BEING NO CONSEQUENCES, SO MR. -- 10 MR. SCHMIDT IS SEEKING CLARIFICATION HERE FROM WHAT THE 11 DETECTIVE BROUGHT UP EARLIER. 12 Q YOU CAN -- 13 A IT'S NOT LIKE HE -- 14 Q YOU CAN SEE WHEN THE DEFENDANT IS SEEKING 15 CLARIFICATION BUT NOT WHEN THE DETECTIVE IS? 16 A WHEN THERE'S ONE PAGE SEPARATING THE TWO, YES. 17 Q SO DETECTIVE POMA IS CORRECT THOUGH IN HIS ANSWER 18 TO MR. SCHMIDT'S HYPOTHETICAL; YOU'RE AGREEING WITH ME ON 19 THAT? 20 A YEAH, BUT I SEEM TO HAVE LOST YOU. YOU TALK 21 ABOUT LINE TWELVE, "YOU HAVE THE RIGHT TO DEFEND 22 YOURSELF." THAT'S WHERE YOU'RE SAYING IS HE CORRECT? 23 Q HE'S CORRECT TO MR. SCHMIDT'S HYPOTHETICAL 24 QUESTION POSED ON LINE FOUR AND GOING THROUGH LINE SEVEN 25 OR EIGHT? 26 A YEAH, BUT THE QUESTION HE'S RESPONDING TO IS ON 27 LINE TEN, "DOES THAT PERSON THAT DEFENDED MAKE THAT A 28 MURDERER." AND ON LINE TWELVE, DETECTIVE POMA SAYS, "YOU 132 1 HAVE THE RIGHT TO DEFEND YOURSELF." SO, YES, I GUESS HE'S 2 RIGHT, BUT I THINK HE'S ANSWERING THE PREVIOUS QUESTIONS 3 NINE, ON TEN, ELEVEN. 4 Q I'M ALMOST DONE HERE, DR. LEO. I THINK WE'RE 5 GETTING SHORT ON TIME. I WANT TO ACTUALLY MAYBE SKIP 6 AHEAD TO PAGE 33, WHICH WAS I THINK WHERE YOU ENDED UP 7 BELIEVING THAT A CONFESSION OR THE -- CERTAINLY THE 8 DEFENDANT'S WILL WAS OVERBORNE BY THAT POINT ACCORDING TO 9 YOUR OPINION; IS THAT CORRECT? 10 A CORRECT. 11 Q AND STARTING AT LINE THREE, DETECTIVE POMA AGAIN 12 TELLS MR. SCHMIDT THAT AMY ANDREWS HAS TOLD HER -- OR TOLD 13 HIM HER STORY. OKAY. AND HERE'S WHAT HE DOES IS HE 14 SUMMARIZES THE EVIDENCE THAT HE KNOWS. "I KNOW YOU HAD AN 15 ARGUMENT WITH A FEMALE. CHRISTA'S A FEMALE. OKAY. I 16 KNOW YOU CUT HER WITH A KNIFE. CHRISTA'S BEEN CUT WITH A 17 KNIFE. EVERYTHING'S KIND OF THERE, JUST THAT YOU'RE NOT 18 SAYING CHRISTA. SO IF THIS IS SELF-DEFENSE, JOHANN, THIS 19 IS THE TIME TO HELP YOURSELF OUT." 20 DO YOU SEE WHAT HIS RESPONSE IS? 21 A YES. 22 Q "WHAT YOU'RE TRYING TO DO IS GET ME IN PRISON AND 23 I WILL NEVER GO TO PRISON. NEVER. NO ONE HAD BEEN BORN 24 YET TO TAKE ME DOWN. NO ONE WILL TAKE ME DOWN. THAT'S 25 THE ONLY THINK I HAVE TO SAY TO THAT." IT SAYS THINK. 26 "BECAUSE NO ONE HAS BEEN BORN YET TO TAKE JOHANN SCHMIDT 27 DOWN." 28 ISN'T THAT A PRETTY CLEAR STATEMENT THAT 133 1 MR. SCHMIDT'S WILL IS NOT OVERBORNE? ISN'T THAT 2 EXPLICITLY CLEAR, TO USE LANGUAGE WE'VE USED EARLIER? 3 A I THINK IT'S A MATTER OF LAW, NO, BECAUSE AS A 4 MATTER OF LAW ONCE YOU USE COERCIVE THREATS OR PROMISES, 5 THE PERSON'S WILL HAS BEEN OVERBORNE. 6 Q YOU'RE NOT FAMILIAR WITH THE REQUIREMENT OF 7 CAUSAL RELATION BETWEEN ANY ALLEGED COERCION AND THE 8 RESULT IN CONFESSION? 9 A YES, I KNOW THAT THERE IS CAUSAL REQUIREMENT, BUT 10 I THINK SOME TECHNIQUES ARE INHERENTLY COERCIVE AND YOU 11 USE THEM AND IF YOU BEAT SOMEBODY AND THAT'S NOT THE CAUSE 12 OF THEIR CONFESSION, THE PERSON'S WILL IS STILL OVERBORNE 13 AND CONFESSIONS STILL MY UNDERSTANDING OF LAW IS IT GETS 14 SUPPRESSED. 15 Q TURNING FURTHER BACK IN THE STATEMENT OR THE 16 VIDEOTAPE, PAGE 67, LINE ONE, DETECTIVE FLETCHER "HAS ANY 17 ONE OF US MADE YOU ANY PROMISES TODAY?" MR. SCHMIDT, 18 "NOBODY HAS MADE ME, YOU KNOW, LIKE ANY -- WHEN THE 19 OFFICERS, YOU KNOW, ARRESTED US, THEY TOOK US IN. THEY 20 JUST SAID, YOU KNOW, BECAUSE OF THE I.D. AND THIS AND 21 THAT, RIGHT." "WE HAVEN'T OFFERED TO HARM YOU OR THREATEN 22 YOU." "NO. I'M JUST SAYING RIGHT NOW, THIS IS MY 23 QUESTION" -- AND I CAN'T READ THE REST. AND "NOW WHEN YOU 24 KNOW THAT YOU KNOW THE TRUTH RIGHT NOW FROM ME, YOU KNOW 25 MY STORY, YOU KNOW AMY'S STORY." THAT'S STARTING PAGE 68, 26 CORRECT? 27 A OKAY. 28 Q SO HE DOESN'T BELIEVE ANY THREATS WERE MADE TO 134 1 HIM, CORRECT? 2 A WELL, HE SAYS NO, BUT NOBODY HAS MADE ME 3 PRESUMEDLY IS IN RESPONSE TO ANY PROMISE RIGHT BEFORE 4 THAT; BUT, OF COURSE, IF SOMEBODY'S BEEN COERCED, THEY MAY 5 LIE AND SAY NO, YOU HAVEN'T THREATENED ME EVEN THOUGH THEY 6 HAVE IN FACT BEEN THREATENED. AND THE REASON THEY MAY DO 7 THAT IS BECAUSE THEY MAY HAVE BEEN MOTIVATED TO COOPERATE 8 WITH THE INTERROGATOR, TO BE GOING ALONG WITH THE 9 INTERROGATOR IS ONE OF THE DEFINITIONS OF COERCION IS YOU 10 FEEL LIKE YOU HAVE NO CHOICE BUT TO COOPERATE. IT'S NOT 11 UNCOMMON FOR SOMEONE WHO IS COERCED OR I BELIEVE IS 12 COERCED TO LIE ABOUT NOT BEING COERCED, OR AT LEAST TO GO 13 ALONG WITH WHAT THE INTERROGATOR IS SAYING. 14 Q IT'S NOT UNCOMMON FOR SOMEONE YOU BELIEVE TO BE 15 COERCED TO LIE AND SAY HE WASN'T COERCED? 16 A I DON'T THINK OTHERS IN MY FIELD WOULD DISAGREE 17 WITH THAT STATEMENT. 18 Q JUST HAVE A COUPLE MORE QUESTIONS DR. LEO. 19 I APOLOGIZE, YOUR HONOR, THERE'S SO MANY PAGES OF 20 TRANSCRIPT. I GOT A LITTLE LOST. 21 PAGE 37, DR. LEO. 22 MR. J. PETERSEN: TAPE TWO? 23 MR. FAULDER: IT IS. 24 THE WITNESS: OKAY. 25 Q (BY MR. FAULDER) PAGE 37, DETECTIVE POMA -- 26 A WHICH LINE. 27 Q STARTING PAGE (SIC) 20, TELLS MR. SCHMIDT WHAT 28 AMY ANDREWS HAD TOLD HIM, TOLD THE DETECTIVE, TOLD HIM IN 135 1 THE PRECEDING PARAGRAPHS -- 2 THE COURT: WHICH PAGE? 3 MR. FAULDER: WE'RE STARTING PAGE 37, LINE 20. 4 THE COURT: LINE 20. 5 THE WITNESS: "THAT STORY IS THE TRUTH", IS THAT 6 WHAT YOU'RE REFERRING TO? 7 Q (BY MR. FAULDER) YES. AND MR. SCHMIDT SAYS "YOU 8 WANT ME TO CONFESS." AND DETECTIVE POMA SAYS "NO, I WANT 9 THE TRUTH." CORRECT? 10 A THAT'S WHAT'S IN THE TRANSCRIPT, CORRECT. 11 Q I WANTED TO END AGAIN WITH SOMETHING YOU HAD 12 WRITTEN IN 1996 WHEN YOU HAD EVALUATED A NUMBER OF, I 13 BELIEVE, 182 INTERROGATIONS, THAT RESULTED IN CONFESSIONS. 14 IS THAT RIGHT, OR THEY JUST INTERROGATIONS? 15 A JUST INTERROGATIONS. 16 Q STARTING -- THIS WAS AFTER YOU SAID THAT YOU 17 GENERALLY RESOLVE ANY DOUBTS IN FAVOR OF THE SUSPECT, NOT 18 THE POLICE. YOU STATED "NEVERTHELESS, IN MY SAMPLE OF 182 19 CUSTODIAL INTERROGATIONS, POLICE QUESTIONING METHODS IN 20 ONLY FOUR, OR 2 PERCENT, OF THE CASES ROSE TO THE LEVEL OF 21 COERCION ACCORDING TO THESE CRITERIA." 22 DO YOU RECALL THAT BEING YOUR RESULT? 23 A YEAH, BUT THE FIRST PART I DIDN'T SAY I GENERALLY 24 RESOLVED DOUBTS IN FAVOR OF THE SUSPECTS. I THINK I SAID 25 IN THAT STUDY -- I THINK YOU'RE GENERALIZING FROM THAT 26 STUDY. BUT, YES, WHAT YOU READ IS ACCURATE, THAT THERE 27 WAS FOUR OF THE 182 AT THAT TIME I RECORDED HAD BEEN 28 COERCIVE. 136 1 Q JUST SO I'M NOT MISQUOTING YOU, "ALTHOUGH SOME 2 MAY DISAGREE WITH WHERE OR HOW I CHOSE TO DRAW THE LINE 3 BETWEEN COERCIVE AND NON-COERCIVE INTERROGATION, I BELIEVE 4 THAT I ERRED ON THE SIDE OF RULING AS COERCIVE QUESTIONING 5 METHODS THAT MANY CONTEMPORARY TRIAL AND APPELLATE COURTS 6 WOULD OTHERWISE DEEM TO BE NON-COERCIVE AND THUS MY 7 CRITERIA FOR COERCIVE TACTICS GENERALLY RESOLVE ANY DOUBTS 8 IN FAVOR OF THE SUSPECT, NOT THE POLICE. NEVERTHELESS, IN 9 MY SAMPLE OF 182 CUSTODIAL INTERROGATIONS, POLICE 10 QUESTIONING METHODS IN ONLY FOUR, OR 2 PERCENT, OF THE 11 CASES ROSE TO THE LEVEL OF COERCION ACCORDING TO THESE 12 CRITERIA." 13 AND THEN YOU DESCRIBE THE FOUR CASES THAT YOU 14 BELIEVED WERE COERCIVE? 15 A CORRECT. 16 Q THOSE FOUR YOU PROVIDE IS A SHORT FACTUAL 17 SUMMARY AND THOSE CASES THE POLICE FAILED TO ACKNOWLEDGE 18 THE SUSPECT'S REPEATED INVOCATION OF SILENCE IN RESPONSE 19 TO THE INITIAL MIRANDA ADMONITION. CLEAR VIOLATION, 20 CORRECT? 21 A CORRECT. 22 Q PROMISED TO RELEASE HIM AS SOON AS HE PROVIDED 23 THEM WITH INFORMATION ABOUT A COUPLE OF ROBBERIES AND THEN 24 IN FACT DID RELEASE HIM, CORRECT? 25 A CORRECT. 26 Q DETECTIVE ANGRILY THREATENED TO PROVIDE THE 27 PROSECUTOR WITH INCRIMINATING INFORMATION THAT WOULD SEND 28 THE SUSPECT TO PRISON, AND THEN HE PROVIDED THE DETECTIVE 137 1 WITH THE INFORMATION. COERCIVE, CORRECT? 2 A CORRECT. 3 Q AND THEN FINALLY, THE DEFENDANT WAS -- OR SUSPECT 4 WAS ARRESTED FOR SELLING DRUGS AND WAS OFFERED EXPLICIT 5 PROMISE OF LENIENCY IF HE BECAME AN INFORMANT AND PROVIDED 6 NAMES OF MORE HIGHLY-PLACED DRUG DEALERS. YOU FOUND THAT 7 TO BE COERCIVE, CORRECT? 8 A I BELIEVE SO, CORRECT. YES. 9 Q CAN YOU, FINALLY, TELL THE COURT IN THIS 10 STATEMENT, THIS VIDEOTAPED STATEMENT, EITHER DURING THE 11 TIME THAT MR. SCHMIDT SPENT WITH DETECTIVE POMA OR 12 DETECTIVE FLETCHER OR EVEN THROUGH THE VIDEO WALK-THROUGH 13 WHEREAFTER MR. SCHMIDT SAYS THAT NOBODY'S GOING TO TAKE 14 HIM DOWN -- YOU REMEMBER THAT COMMENT ON PAGE 33? 15 A CORRECT. 16 Q THAT MR. SCHMIDT SAYS I KILLED CHRISTA AMO IN 17 SELF-DEFENSE? 18 A THAT WAS QUITE A LONG QUESTION. YOU WANT ME TO 19 SAY WHERE HE KILLS HER IN SELF-DEFENSE? 20 Q YES. 21 A ALL RIGHT. SO ON TOP OF PAGE 71, THIS IS AFTER I 22 BELIEVE THE DETECTIVES HAVE LEFT FOR AWHILE, STARTING LINE 23 ONE, HE'S BANGING ON THE WINDOW. HE SAYS "SHIT. I GOT TO 24 GET OUT. GOD DAMN, AMY. SHIT. I GOT TO GET OUT. GOT TO 25 GET THE FUCK OUT OF HERE. GET THE HELL OUT OF THIS 26 (INAUDIBLE). DAMN. SHIT. HOW CAN I GET OUT? DAMN. I 27 HAVE TO GET THE FUCK OUT OF HERE. I'M NOT GOING TO 28 PRISON. IT WAS SELF-DEFENSE." 138 1 Q THE DETECTIVES WEREN'T PRESENT WHEN THAT WAS 2 SAID, CORRECT? 3 A YEAH, BUT YOU ASKED ME, THIS IS WHERE. 4 Q OKAY. WHERE DID HE SAY IT TO THE DETECTIVES? 5 A I DON'T KNOW WHERE HE SAID IT TO THE DETECTIVES. 6 Q THAT'S BECAUSE HE DIDN'T SAY IT TO THE 7 DETECTIVES, CORRECT, DR. LEO? 8 A I DON'T RECALL IF HE DID SAY EXPLICITLY TO THE 9 DETECTIVES. ON PAGE 35, LINE 17, STARTING LINE 11, "THE 10 LADY CAME AT YOU AND PUNCHED, RIGHT?" AND SIX LINES DOWN, 11 17, "LET'S SAY THAT I'VE" -- ACTUALLY, I THINK THAT WAS 12 MISTRANSCRIBED. I THINK IT SAYS "LET'S SAY IT HAPPENED 13 LIKE THAT." 14 Q MR. SCHMIDT'S TALKING, CORRECT? 15 A YEAH. SO ON LINE 11, ONCE AGAIN THEY'RE USING 16 SELF-DEFENSE SCENARIO, AND LINE 17 HE SAYS "LET'S SAY IT 17 HAPPENED LIKE THAT." IN ANSWER TO YOUR QUESTION, I THINK 18 THAT'S WHERE HE SAYS. 19 Q I'M GLAD YOU BROUGHT THAT OUT. ISN'T THAT 20 EXACTLY WHAT MR. SCHMIDT TOLD THE DETECTIVES IN THE FIRST 21 TAPE, THAT SOMEBODY PUNCHED HIM IN THE STOMACH AND HE FELL 22 TO THE GROUND AND HAD THE WIND KNOCKED OUT OF HIM AND HE 23 WAS ON THE GROUND, WEAK, GOT UP WITH A KNIFE AND SLASHED 24 THE PERSON TWICE? 25 A YES. IT'S NOT CLEAR IF HE'S DESCRIBING THE SAME 26 OFFENSE. AND I THINK THERE'S MORE DETAILS HERE, BUT IT'S 27 NOT ENTIRELY DISSIMILAR. 28 MR. FAULDER: THANK YOU, DR. LEO. NO FURTHER 139 1 QUESTIONS. 2 THE COURT: REDIRECT? 3 REDIRECT EXAMINATION 4 Q (BY MR. J. PETERSEN) DR. LEO, IN THE FIRST TAPE, 5 JOHANN DESCRIBES AN INCIDENT -- WELL, AN EXPLANATION OF 6 WHY HE AS THE BLOOD ON HIS PERSON. DOES HE DESCRIBE AN 7 INCIDENT INVOLVING A HIGH SCHOOL FRIEND? 8 A THAT'S MY RECOLLECTION FROM THE POLICE REPORT, 9 YES. 10 Q RIGHT. SO THE HIGH SCHOOL FRIEND DISCUSSION GOES 11 ON THROUGH BASICALLY THE END OF TAPE ONE; IS THAT 12 ACCURATE? 13 A I THINK MY RECOLLECTION THAT'S ACCURATE BECAUSE 14 IT'S AT THE END OF TAPE ONE THAT, IF MY RECOLLECTION IS 15 ACCURATE, CHRISTA IS FIRST MENTIONED. 16 Q RIGHT. AND THE OFFICERS SAY THERE'S A QUESTION 17 ABOUT THE CAR THAT HE'S IN; IS THAT RIGHT? 18 A I BELIEVE SO. 19 Q AND HE SAYS THAT THE PERSON INVOLVED IN THE 20 ALTERCATION WAS NOT THE PERSON WHOSE CAR IT WAS, THIS WAS 21 TAPE ONE; DO YOU RECALL THAT? 22 A I BELIEVE SO. I SEE WHERE HE REFERS TO THE CAR. 23 Q AND ON PAGE 26, TAPE ONE, I GUESS I'LL GO INTO 24 MORE DETAIL. HE SAYS THE PERSON WHOSE CAR IT WAS WAS NOT 25 THE PERSON INVOLVED IN THE ALTERCATION; IS THAT RIGHT? 26 A WHAT LINE DID YOU SAY THAT WAS? 27 Q SURE. LINE NINE, PAGE 26. 28 A YES. HE SAYS "NO, IT WAS FROM A DIFFERENT 140 1 PERSON." OKAY. 2 Q SO THAT PRETTY MUCH WOULD ELIMINATE CHRISTA IF 3 THIS IS CHRISTA'S CAR; IS THAT RIGHT? 4 A THAT WOULD BE A LOGICAL INFERENCE. 5 Q SO THE OFFICERS AT THAT POINT KNOW HE'S NOT 6 TALKING ABOUT CHRISTA, HE'S TALKING ABOUT A HIGH SCHOOL 7 FRIEND; WOULD YOU AGREE? 8 MR. FAULDER: OBJECTION -- 9 THE WITNESS: I THINK THAT'S A LOGICAL 10 INFERENCE. 11 MR. FAULDER: I WON'T OBJECT TO THE ANSWER. I'LL 12 WITHDRAW WHAT I WAS GOING TO SAY. 13 THE COURT: PROCEED. 14 Q (BY MR. J. PETERSEN) AND THEN WE MOVE ON TO 15 DISCUSSIONS OF CHRISTA IN TAPE TWO; IS THAT TRUE? 16 A YES. 17 Q I BELIEVE AFTER PAGE 28 WHEN HE SAYS HER NAME IS 18 CHRISTA, ALL THE DISCUSSION AFTER THAT IS ABOUT CHRISTA 19 AND THEN THE OFFICER'S -- THE DISCUSSION OF THE HIGH 20 SCHOOL FRIEND TO -- THEY TRANSFER THAT ON TO CHRISTA AND 21 START SELLING SCHMIDT THE SELF-DEFENSE AS IT APPLIES TO 22 CHRISTA THEORY. IS THAT BASICALLY HOW THAT HAPPENS? 23 A I DON'T SEE THE CONNECTION BETWEEN THE SORT OF 24 PRE-CHRISTA HIGH SCHOOL FRIEND AND THE CHRISTA, SO I 25 WOULDN'T EVEN SAY THE WORD TRANSFER. I WOULD SAY THEY 26 DROP THAT AND MOVE TO THIS. AND THEY BEGIN WITH, AS I 27 DISCUSSED EARLIER, THE SELF-HELP -- THE HELP YOURSELF 28 THEME AND SELF-DEFENSE SCENARIO THEME WHICH IS 141 1 PROGRESSIVELY DEVELOPED IN RESPONSE TO CHRISTA. 2 Q TO THE POINT WHERE THEY START DISCUSSING CHRISTA, 3 MR. SCHMIDT HAD STUCK WITH THIS HIGH SCHOOL FRIEND 4 SCENARIO; IS THAT RIGHT? 5 MR. FAULDER: YOUR HONOR, IT MISSTATES THE 6 EVIDENCE. THERE WAS NOTHING IN THIS TRANSCRIPT THAT EVER 7 MENTIONED A HIGH SCHOOL FRIEND. THAT CAME THROUGH A 8 POLICE REPORT THAT DID NOT INVOLVE EITHER OF THE 9 DETECTIVES. 10 THE COURT: CAN YOU POINT IN THE TRANSCRIPT WHERE 11 IT DOES? 12 MR. J. PETERSEN: I CAN. THERE'S A REFERENCE TO 13 IT, THE OFFICERS REFER TO EARLIER STATEMENT HE MADE TO THE 14 OTHER OFFICER. IT MAY TAKE A MINUTE THOUGH. 15 MR. FAULDER: ON PAGE TEN, IF IT HELPS, LINE 16 FOUR, MR. SCHMIDT STARTS DESCRIBING A MISUNDERSTANDING, 17 PROBLEM HE HAD WITH A FRIEND, MISUNDERSTANDING WITH A 18 FRIEND. WHAT'S THE NAME OF THE FRIEND? THAT'S A LITTLE 19 PERSONAL, SIR. 20 THE COURT: I DON'T REMEMBER ANYTHING ABOUT A 21 HIGH SCHOOL FRIEND. 22 MR. FAULDER: NO. IT DIDN'T COME UP IN THIS 23 INTERVIEW. 24 MR. J. PETERSEN: SO I SUPPOSE WE'LL CALL 25 DETECTIVE POMA AND FIND OUT IF HE WAS PRIVY TO THAT 26 INFORMATION. 27 Q (BY MR. J. PETERSEN) BUT YOU'RE AWARE FROM YOUR 28 REVIEW OF THE FILE THAT PRIOR TO THIS INTERVIEW 142 1 MR. SCHMIDT HAD TOLD LAW ENFORCEMENT THAT THE ALTERCATION 2 HE HAD HAD THAT GOT THE BLOOD ON HIS CLOTHING WAS WITH A 3 HIGH SCHOOL FRIEND? 4 A CORRECT. 5 Q AND, OF COURSE, WE DON'T KNOW WHETHER COP A TELLS 6 COP B WHAT HE FINDS OUT AT THE SCENE, BUT WE CAN FIND THAT 7 OUT WHEN WE CALL DETECTIVE POMA. 8 LET'S MOVE ON TO TAPE TWO AGAIN. WHEN WE GET 9 INTO A DISCUSSION OF CHRISTA, WHO IS THE FIRST -- DO THE 10 OFFICERS SUGGEST OR DOES SCHMIDT SUGGEST THAT NOW THAT 11 WE'RE DISCUSSING CHRISTA, HE SHOULD USE -- OR THEY SUGGEST 12 A SELF-DEFENSE THEME? 13 A IT COMES FROM THE OFFICERS. IT COMES FROM 14 OFFICERS, AS I SAID EARLIER, ON PAGE 13, TOP OF PAGE 13. 15 MR. FAULDER: IS THAT ON TAPE TWO PLEASE? 16 THE WITNESS: YEAH, TAPE TWO. 17 Q (BY MR. J. PETERSEN) AND IN CONJUNCTION WITH THE 18 SELF-DEFENSE THEME RECOMMENDED BY THE OFFICER, DO THE 19 OFFICERS REPEATEDLY USE THAT IN CONJUNCTION WITH THE 20 STATEMENT THAT MR. SCHMIDT SHOULD HELP HIMSELF OUT? 21 A YES, I BELIEVE THEY USE IT AROUND A HALF A DOZEN 22 TIMES, MAYBE EVEN MORE. 23 Q IS THE THEME OF SELF-DEFENSE WHERE HE'S HELPING 24 HIMSELF OUT CONTRASTED BY THE OFFICERS WITH THE REPEATED 25 LIES THAT WILL RESULT IN HIM BEING LABELED A MURDERER 26 WHERE HE WOULD GO TO PRISON? 27 A YES, IT GETS CONTRASTED ON PAGE 28, THE 28 SELF-DEFENSE BEING TAGGED AS A MURDERER, KILLING OUT OF 143 1 ANGER, ON PAGE 25, KILLING OUT OF SELF-DEFENSE. THERE IS 2 CONTRAST SET UP EXPLICITLY AT LEAST IN THOSE TWO PAGES AND 3 IMPLICITLY ELSEWHERE. 4 Q AND THEY EVEN TALK ABOUT -- THE OFFICERS EVEN 5 TELL MR. SCHMIDT THAT ASSUMING THIS OFFERED SELF-DEFENSE 6 THEME WORKS OR APPLIES TO HIM, THAT HE WILL GO HOME, THERE 7 WILL BE NO CONSEQUENCES? 8 A THEY TELL HIM BOTH. THEY TELL HIM THERE'S NO 9 CONSEQUENCES AND I BELIEVE THAT'S ON PAGE 26. AND ON PAGE 10 29, THEY EXPLICITLY TELL HIM HE'LL GO HOME. 11 Q NOW THE OFFICERS NEVER TELL MR. SCHMIDT THAT 12 THEY'RE GOING TO DO PHYSICAL HARM TO HIM; IS THAT RIGHT? 13 A CORRECT. 14 Q AND THEY NEVER SAY, YOU KNOW, JOHANN, I PROMISE 15 THIS OR I PROMISE THAT? THE WORD "PROMISE" NEVER COMES 16 UP? 17 A CORRECT, AT THE POINT WHEN HE ASKED HIM IF 18 THEY'VE MADE ANY PROMISES. 19 Q RIGHT. AND SO WHEN THEY DO ASK HIM IF THEY MADE 20 ANY PROMISES, IS IT ANY SURPRISE TO YOU FROM WHAT YOU SEE 21 IN THE TRANSCRIPT THAT MR. SCHMIDT OR ANYONE WHO RESPONDS 22 TO THAT AS IF THE QUESTION RELATED TO EXPRESS PROMISES, 23 KIND OF PROMISES THAT WE'RE USED TO IN THE COMMON WORLD? 24 A NO, IT'S NOT A SURPRISE. 25 Q IT'S THE LAW THAT LABELS THESE SORTS OF COERCION 26 TACTICS AS PROMISES, IT'S NOT SOMETHING THAT'S USED IN 27 COMMON PARLANCE OF LAY PEOPLE; WOULD YOU AGREE? 28 A THE WORD "PROMISE" IS A WAY OF CALLING -- 144 1 SOMEBODY'S PROMISE OF LENIENCY HAS A SPECIFIC MEANING. 2 IT'S A TERM THAT'S VERY FAMILIAR IN LAW THAT YOU DON'T 3 HEAR LAY PEOPLE USE IN LAW; BUT THE POINT I WAS MAKING 4 ABOUT THE QUESTION EARLIER WAS THAT IF YOU THINK THERE'S A 5 PROMISE AND YOU RATIONALLY WANT TO CASH IN ON THE PROMISE 6 AND ASKED HAVE I MADE YOU ANY PROMISES, IT WOULD BE 7 RATIONAL TO SAY NO. 8 Q TO BE A COERCIVE TACTIC OF THE -- DOES THE 9 COERCED INDIVIDUAL HAVE TO VIEW IT AS A PROMISE OR SIMPLY 10 ASSAY AN OUTCOME? 11 A I WOULD THINK IT WOULD BE SUFFICIENT TO VIEW IT 12 AS AN OUTCOME, AS AN EXCHANGE OR NEGOTIATION. 13 Q DID THE COERCIVE TACTICS USED BY THE OFFICERS IN 14 THIS CASE PROMISE THAT THEY -- THEY WOULD DO ANYTHING TO 15 HELP HIS CASE OR SIMPLY DID THEY EXPRESS THAT IF YOU AGREE 16 WITH THE SELF-DEFENSE SCENARIO THAT THESE GOOD THINGS WILL 17 HAPPEN, YOU WILL GO HOME, THERE WILL BE NO CONSEQUENCES? 18 A I THINK IN TERMS OF EXPLICIT OR MORE EXPLICIT 19 PROMISES OR SUGGESTIONS, IT WAS JUST THAT THERE WOULD BE 20 NO CONSEQUENCES, THAT HE WOULD NOT GET PUNISHED AND THAT 21 HE WOULD BE ABLE TO GO HOME. THOSE ARE THE MOST EXPLICIT 22 OUTCOMES THEY ESSENTIALLY PROMISE HIM OR SUGGEST TO HIM IF 23 HE AGREES TO ADOPT THE SELF-DEFENSE SCENARIO. 24 Q BUT WHEN THEY'RE ASKING MR. SCHMIDT DID WE 25 PROMISE YOU ANYTHING AND SCHMIDT IS -- EVEN THOUGH HE'S 26 NOT TRYING TO BE OVERLY COOPERATIVE NOW THAT HE'S GOT THE 27 DEAL ON THE TABLE AND HE WANTS TO TAKE IT, EVEN IF HE'S 28 TRYING TO THINK DID THEY REALLY MAKE ME A PROMISE IN THIS 145 1 CASE, EVEN IN LIGHT OF THE COERCIVE TACTICS, IS IT ANY 2 SURPRISE THAT THE ANSWER WOULD BE NO? 3 A THEY DIDN'T EXPLICITLY SAY ANYTIME I AM PROMISING 4 YOU X OR Y. THEY DIDN'T USE THAT LANGUAGE. 5 Q DID THEY MAKE A PROMISE TO THEMSELVES TO DO 6 ANYTHING? 7 A I GUESS NOT. THEY TOLD HIM HE'D GO HOME, THERE 8 WOULD BE NO CONSEQUENCES, OR THERE WERE NO PUNISHMENTS; 9 BUT THEY DIDN'T EXPLICITLY SAY THEY WERE GOING TO DO THAT. 10 AND THEY SUGGESTED THESE OUTCOMES WOULD OCCUR, BUT THEY 11 DIDN'T SAY I PROMISE I WILL MAKE THIS OUTCOME HAPPEN. 12 Q SO THERE WAS NO PROMISE THAT THE OFFICER WOULD DO 13 ANYTHING, BUT THERE WAS AN OUTCOME THAT THEY SAID WOULD 14 OCCUR IF MR. SCHMIDT AGREED TO THEIR SELF-DEFENSE 15 SCENARIO? 16 A THERE WAS NO PROMISE IN THE SENSE THAT THEY 17 DIDN'T SAY I PROMISE VERBATIM, BUT THERE WAS A SUGGESTION 18 WHICH I CALLED A PROMISE OF LENIENCY ABOUT WHAT 19 CONSEQUENCES OR OUTCOMES WOULD FOLLOW IF HE ADOPTED THEIR 20 SCENARIO. 21 Q THE TERM PROMISE OF LENIENCY, THIS'S A TERM OF 22 ART, NOT SOMETHING A LAYPERSON WOULD CONSIDER A PROMISE. 23 MR. FAULDER: ASKED AND ANSWERED, YOUR HONOR. 24 THE COURT: DID YOU HAVE A QUESTION? DIDN'T 25 SOUND TO ME AS THOUGH YOU WERE PHRASING A QUESTION. 26 MR. J. PETERSEN: AND I ENDED IT "WOULD YOU 27 AGREE." 28 Q (BY MR. J. PETERSEN) WOULD YOU AGREE THAT THIS 146 1 SORT OF THING THAT IS CALLED A PROMISE OF LENIENCY IN 2 THESE CASES IS NOT SOMETHING THAT A COMMON LAYPERSON OFF 3 THE STREET WOULD LABEL A PROMISE? 4 MR. FAULDER: ASKED AND ANSWERED, YOUR HONOR. 5 THE COURT: I THINK THAT WAS ASKED AND ANSWERED. 6 SUSTAINED. 7 Q (BY MR. J. PETERSEN) YOU WERE ASKED ABOUT 8 YOUR -- I BELIEVE YOUR BOOK WHERE THERE WAS A CONCLUSION 9 YOU CAME TO THAT FOUR OF THE 182 CASES THAT YOU HAD 10 REVIEWED YOU WOULD CONSIDER COERCIVE? 11 A IN THAT STUDY, CORRECT. 12 Q SURE. IF THIS CASE HAD BEEN PART OF THAT STUDY, 13 WOULD YOU HAVE CONSIDERED IT AND LABELED IT AS COERCIVE 14 JUST AS -- 15 MR. FAULDER: OBJECTION. RELEVANCE. HE'S 16 ALREADY GIVEN HIS OPINION AS TO WHAT HE THINKS ABOUT THIS 17 CASE. WHETHER HE INCLUDED IT IN STUDY IS IRRELEVANT. 18 MR. J. PETERSEN: IT'S NOT IRRELEVANT. 19 THE COURT: I'LL ALLOW IT. 20 THE WITNESS: I THINK I ANSWERED THAT ON DIRECT, 21 THAT THE CRITERIA I HAD THERE FOR PROMISE AND THAT 22 ALTHOUGH HE WAS NOT PROMISED OR -- HE WAS NOT THREATENED 23 DIRECTLY BY THE DETECTIVE ABOUT HIS OWN PHYSICAL OR 24 PSYCHOLOGICAL WELL-BEING, THAT UNDER THAT CRITERIA I WOULD 25 REGARD THIS AS COERCIVE. 26 Q (BY MR. J. PETERSEN) DO YOU REGARD THIS CASE AS 27 A CLOSE CALL? IS THIS ONE OF THOSE CASES WHERE, WELL, 28 MAYBE IT WAS COERCED, MAYBE IT WASN'T COERCED? OR IS THIS 147 1 A CLEAR EXAMPLE OF COERCED CONFESSION? 2 A IF THE INTERROGATION ENDED ON PAGE 15 OR 16 OF 3 THE SECOND VIDEOTAPE, I WOULD SAY IT'S A CLOSE CALL. THE 4 REASON WHY IT'S NOT IN MY OPINION IS BECAUSE ON PAGES -- 5 MR. FAULDER: OBJECTION. IT'S NONRESPONSIVE. 6 MR. J. PETERSEN: IT'S NOT. HE'S EXPLAINING -- 7 THE COURT: SUSTAINED. 8 Q (BY MR. J. PETERSEN) WOULD PLEASE EXPLAIN YOUR 9 PREVIOUS RESPONSE. 10 A I WAS GOING TO BE BRIEF. ON PAGES 26 TO 29, I 11 THINK THIS IS WHAT CLEARLY PUTS IT OVER THE TOP. THE 12 REFERENCE TO IF IT'S JUSTIFIABLE, THERE'S NO CONSEQUENCES 13 FOR JUST DEFENDING YOURSELF, NO, THERE'S NOT. AGAIN 14 THERE'S NO PUNISHMENT IF YOU GET SELF-DEFENSE AND YOU'LL 15 BE ABLE TO GO HOME. AND THESE ARE IN RESPONSE IN PART TO 16 HIS -- MR. SCHMIDT'S CLARIFICATION OF WHAT'S GOING TO 17 HAPPEN TO HIM IN THESE TWO SCENARIOS. IT APPEARS HE 18 UNDERSTANDS. IN HIS QUESTION, THE TWO PEOPLE IN DIFFERENT 19 SCENARIOS, DIFFERENT -- WHAT'S GOING TO HAPPEN TO THEM? 20 DID YOU MEAN THIS? ONE IS NOT A MURDERER. I DON'T THINK 21 IT'S A CLOSE CALL AND THIS IS THE MEAT OF WHY I DON'T 22 THINK IT'S A CLOSE CALL, THESE THREE OR FOUR PAGES. 23 Q BECAUSE THE THREE OR FOUR PAGES MAKE IT VERY 24 CLEAR IF MR. SCHMIDT AGREES TO THIS SCENARIO BEING OFFERED 25 THAT HE WILL NOT BE A MURDERER, HE WILL NOT BE A LIAR AND 26 HE WILL NOT GO TO PRISON AND HE WILL GO HOME; IS THAT -- 27 A CORRECT. 28 Q -- TRUE? 148 1 AND THEN ON THE OTHER HAND, IF HE CONTINUES WITH 2 HIS DENIALS, HE WILL BE -- AND THEY REPEAT DENY, DENY, 3 DENY, THREE TIMES. SO IF HE CONTINUES WITH HIS DENIALS 4 WAS HE NOT TOLD HE WILL BE LABELED A LIAR, WILL BE LABELED 5 A KILLER, A MURDERER AND WILL GO TO PRISON? 6 A HE IS TOLD THAT. I THINK THE DENY, DENY, DENY, 7 THEN YOU'RE A MURDERER IS PAGE 28, LINE 17 TO 19. AND THE 8 SECOND PART OF YOUR QUESTION I THINK IS IMPLIED FROM THE 9 STATEMENTS THAT THE INVESTIGATOR MAKES. 10 Q NOW THE OPINION OR OPINIONS THAT YOU'VE OFFERED 11 IN THIS CASE, ARE THOSE OPINIONS -- WOULD YOU REGARD THOSE 12 AS BEING WITHIN THE HEART OF THE EXPERTISE IN YOUR AREA OF 13 STUDY, THAT IS COERCED CONFESSION OR WOULD YOU SAY IT'S 14 MORE OF A -- LET ME REPHRASE. THAT'S A CRAZY QUESTION. 15 WOULD YOU SAY THAT THE CASE OR THE OPINION THAT 16 YOU'VE OFFERED IN THIS CASE THAT IT IS A COERCED 17 CONFESSION WOULD BE ONE THAT WOULD BE SUBJECT TO BEING 18 CONTESTED BY OTHER EXPERTS IN YOUR FIELD? OR DO YOU THINK 19 THE OTHER EXPERTS IN YOUR FIELD FEEL THAT THIS IS A CLEAR 20 ENOUGH CASE THEY WOULD AGREE? 21 MR. FAULDER: OBJECTION, YOUR HONOR. CALLS FOR 22 SPECULATION. 23 THE COURT: SUSTAINED. 24 MR. J. PETERSEN: I MAY BE DONE. LET ME REVIEW 25 NOTES MY FOR A MOMENT. 26 (PAUSE.) 27 MR. J. PETERSEN: NOTHING FURTHER. 28 THE COURT: FURTHER RECROSS? 149 1 MR. FAULDER: NOTHING NEW CAME UP. THANK YOU. 2 THE COURT: THANK YOU, SIR. YOU CAN STEP DOWN. 3 ANY FURTHER WITNESSES? 4 MR. J. PETERSEN: YES. WE'D CALL DETECTIVE POMA. 5 THE COURT: WELL, IT'S FIVE MINUTES TO FIVE. 6 SHALL WE CONTINUE THIS TO TOMORROW? 7 MR. J. PETERSEN: WE CAN DO IT TOMORROW. I THINK 8 COUNSEL HAD A WITNESS HE WANTED TO PUT ON ON MONDAY. 9 MR. FAULDER: DR. PODBOY IS THE WITNESS THE 10 PEOPLE HAVE SUBPOENAED FOR MONDAY, YOUR HONOR. 11 THE COURT: I WOULD RATHER JUST KEEP IT TO 12 DR. PODBOY ON MONDAY AND CONTINUE THIS TOMORROW SO THAT WE 13 DON'T GET JAMMED. 14 MR. J. PETERSEN: I DON'T HAVE A DISAGREEMENT 15 WITH THAT. 16 THE COURT: ALL RIGHT. 17 MR. J. PETERSEN: IF I COULD -- 18 THE COURT: DO WE HAVE ANYTHING SET FOR 1:30 19 TOMORROW AFTERNOON? 20 THE CLERK: NO. 21 THE COURT: 1:30 TOMORROW AFTERNOON. 22 MR. J. PETERSEN: YOUR HONOR, AND I ALSO 23 SUBPOENAED DETECTIVE FLETCHER TO BE HERE TODAY. 24 MR. FAULDER: DETECTIVE FLETCHER IS HERE. HE'S 25 NOT IN THE COURTROOM. HE ASSUMED THERE WOULD BE AN ORDER 26 EXCLUDING WITNESSES, SO HE SORT OF SELF-IMPOSED THAT ORDER 27 UPON HIMSELF. 28 MR. J. PETERSEN: I'M NOT SAYING IT'S 150 1 UNREASONABLE. I WOULD LIKE THE COURT TO ORDER HIM BACK 2 AND I DON'T KNOW THAT WE CAN DO THAT WITHOUT HIM IN THE 3 ROOM. 4 MR. FAULDER: I DON'T THINK THE COURT WOULD NEED 5 TO ORDER. WE CAN MAKE SURE HE KNOWS TO BE HERE TOMORROW 6 AND WE'LL HAVE HIM HERE AT 1:30. 7 MR. J. PETERSEN: OKAY. 8 THE COURT: I'LL ORDER SERGEANT POMA BACK. 9 MR. J. PETERSEN: THANK YOU. 10 MR. R. PETERSEN: WE'D LIKE TO THANK THE COURT 11 FOR YOUR PATIENCE. 12 THE COURT: IT'S ALL BEEN VERY INTERESTING. 13 MR. J. PETERSEN: IT'S INTERESTING STUFF. 14 (PROCEEDINGS ADJOURNED AT 4:57 P.M.) 15 - - - 16 17 18 19 20 21 22 23 24 25 26 27 28