1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 4 _____________________________ ) 5 STEPHEN CROWE, et al., ) ) 6 Plaintiffs, ) ) 7 vs. ) 99-CV-0241-R(RRB) ) 8 COUNTY OF SAN DIEGO, et al., ) ) 9 Defendants. ) _____________________________) 10 ) AARON HOUSER, et al., ) 11 ) Plaintiffs, ) 12 ) vs. ) 13 ) CITY OF ESCONDIDO, et al., ) 14 ) Defendants. ) 15 _____________________________) ) 16 MICHAEL LEE TREADWAY, et al.,) ) 17 Plaintiffs, ) ) 18 vs. ) ) 19 CITY OF ESCONDIDO, et al., ) ) 20 Defendants. ) _____________________________) 21 22 DEPOSITION OF RICHARD LEO, PH.D. 23 SAN DIEGO, CALIFORNIA 24 FEBRUARY 5, 2003 25 26 REPORTED BY SHELLEY LYNN SCHNIEPP, CSR NO. 5487 27 28 Peterson & Associates Court Reporting, Inc. 1 1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 _______________________________ 4 ) STEPHEN CROWE, et al., ) 5 ) Plaintiffs, ) 6 ) vs. ) 99-CV-0241-R(RRB) 7 ) COUNTY OF SAN DIEGO, et al., ) 8 ) Defendants. ) 9 _______________________________) ) 10 AARON HOUSER, et al., ) ) 11 Plaintiffs, ) ) 12 vs. ) ) 13 CITY OF ESCONDIDO, et al., ) ) 14 Defendants. ) _______________________________) 15 ) MICHAEL LEE TREADWAY, et al., ) 16 ) Plaintiffs, ) 17 ) vs. ) 18 ) CITY OF ESCONDIDO, et al., ) 19 ) Defendants. ) 20 _______________________________) 21 22 DEPOSITION OF RICHARD LEO, PH.D., 23 taken by the Defendants, commencing at the hour of 24 9:00 a.m., on February 5, 2003, at 530 "B" Street, Suite 25 350, San Diego, California, before Shelley Lynn Schniepp, 26 Certified Shorthand Reporter in and for the State of 27 California. 28 Peterson & Associates Court Reporting, Inc. 2 1 APPEARANCES 2 For the Plaintiff Houser: 3 SCHOVILLE & ARNELL BY: LOUIS ARNELL 4 1230 Columbia Street, Suite 800 San Diego, California 92101 5 6 For the Plaintiff Treadway: 7 CASEY, GERRY, REED & SHENK BY: CHRISTOPHER TAYLOR 8 -and- BY: JEREMY ROBINSON 9 110 Laurel Street San Diego, California 92101 10 11 For the Defendant National Institute for Truth Verification: 12 HORTON & RYAN 13 BY: MINA MISERLIS 225 Broadway, Suite 1400 14 San Diego, California 92101 15 For the Defendants City of Oceanside and Chris 16 McDonough: 17 FERGUSON, PRAET & SHERMAN BY: DIANA L. FIELD 18 1631 East 18th Street Santa Ana, California 92075 19 20 For the Defendant City of Escondido: 21 OFFICE OF THE CITY ATTORNEY BY: MARK A. WAGGONER 22 DEPUTY CITY ATTORNEY CITY OF ESCONDIDO 23 201 North Broadway Escondido, California 92025 24 25 For the Defendant Laurence Blum, M.D.: 26 MURCHISON & CUMMING BY: SCOTT LOEDING 27 750 "B" Street, Suite 2550 San Diego, California 92101 28 Peterson & Associates Court Reporting, Inc. 3 1 I N D E X 2 WITNESS: RICHARD LEO, PH.D. 3 4 EXAMINATION PAGE 5 By Mr. Waggoner 5 6 By Ms. Field 144 7 By Ms. Miserlis 184 8 By Mr. Loeding 214 9 E X H I B I T S 10 FOR THE DEFENDANTS MARKED 11 139 Dr. Leo's file 114 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Peterson & Associates Court Reporting, Inc. 4 1 RICHARD LEO, PH.D., 2 having been duly sworn, testified as follows: 3 4 EXAMINATION 5 BY MR. WAGGONER: 6 Q. Good morning, sir. 7 A. Morning. 8 Q. My name is Mark Waggoner. I represent the City 9 of Escondido and various individual defendants in the 10 litigation entitled Crowe versus the City of Escondido, et 11 al. 12 My understanding is you have been retained by 13 the plaintiffs to offer expert opinions in this case and 14 we're here to take your deposition relative to that 15 designation. 16 Is that your understanding? 17 A. Yes. 18 Q. Would you please state your full name for the 19 record and spell your last name. 20 A. Richard Angelo Leo, L-e-o. 21 Q. How are you employed? 22 A. I'm currently an associate professor at the 23 University of California Irvine. I have an appointment in 24 the criminology law and society. That's my primary 25 appointment. 26 I have a joint appointment with the department 27 of psychology and social behavior also as an associate 28 professor. Peterson & Associates Court Reporting, Inc. 5 1 Q. How many times in the past have you testified? 2 A. I have testified 82 times in a court of law. 3 That doesn't including depositions, suppression motions, 4 pretrial hearings or post-conviction hearings. 5 Q. Approximately how many times have you testified 6 in a deposition? 7 A. Eight times. 8 Q. Unless you think you need it, I'll dispense 9 with going through the admonitions of a deposition and 10 what the rules of the procedure are. 11 However, I will admonish you, you have taken an 12 oath, the same oath as if you were testifying in court 13 with the judge and jury present. You are under penalty of 14 perjury. 15 Do you understand that? 16 A. Yes. 17 Q. Do you have any questions about the deposition 18 procedure? 19 A. No -- actually, I do have one question. 20 Q. Certainly. 21 A. Are there going to be multiple attorneys 22 deposing me or is it going to be you or perhaps they could 23 introduce themselves at this time. 24 Q. There will be because I represent only certain 25 of the defendants in this case. There are other 26 defendants besides my clients and they have a right to 27 depose you as well. 28 MS. FIELD: My name is Diana Field. I Peterson & Associates Court Reporting, Inc. 6 1 represent the City of Oceanside and Detective Chris 2 McDonough. 3 MR. LOEDING: Scott Loeding. I represent 4 Dr. Lawrence Blum. 5 MS. MISERLIS: Mina Miserlis on behalf of 6 defendant NITV. 7 THE WITNESS: That raises the next question. 8 I'm obviously going to send the bill to somebody for my 9 time. Is that going to be you? 10 BY MR. WAGGONER: 11 Q. Yes. 12 A. So you will get me a card? 13 Q. We've been given a report from Mr. Silverman's 14 office dated November 30th, 2002 that purports to be a 15 report of your work on this case and then we also have -- 16 I don't know if you want to call it a report or a letter 17 from you dated December 31st, 2002 to Milt Silverman. 18 Do those two documents compromise all of the 19 written reports that you've generated so far in your work 20 on this case? 21 A. Yeah. They comprise all the written reports, 22 correct. 23 Q. In the first one, you list materials you have 24 reviewed at least as of the date of that report, 25 November 30, 2002. 26 Have you reviewed anything other than what is 27 listed in that section of your report dated November 30, 28 2002? Peterson & Associates Court Reporting, Inc. 7 1 A. Yes, I have. 2 Q. What is that? 3 A. The materials referred to in the first 4 paragraph of the December 31st report, supplement to 5 Milt Silverman, which would include Jack Jamarca's report 6 dated December 23, 2002 and Dr. Lawrence Blum's deposition 7 dated October 15, 2002. 8 I've also reviewed Dr. Sarah Wech's report, 9 Dr. John Thornton's report, Victor Cestaro's report. I 10 didn't write dates next to these. Dr. Calvin Calaruso's 11 report, Joseph Buckley's report, Patrick Flood's report, 12 Gregg McCrary's report, Joel Cary's report, a few pages of 13 Gary Hoover's deposition and Judge Thompson's decision 14 dated 12/17/98. 15 Q. Do you have pages listed from Hoover's depo? 16 A. No. I believe it was Pages 110 to 111 or 112, 17 maybe 113. Right around there. 18 Q. So it was less than five pages? 19 A. Yes. 20 Q. Is your November 30, 2000 report as 21 supplemented by the letter to Mr. Silverman dated 22 December 31st, 2002 an attempt by you to comprehensively 23 state what your opinions and conclusions are in this case? 24 A. To that point, yes. 25 Q. Have you, after reviewing the subsequent 26 materials you just listed today, modified or changed any 27 of your opinions from your earlier reports? 28 A. No. Peterson & Associates Court Reporting, Inc. 8 1 Q. Have you supplemented those opinions with 2 additional opinions or additional conclusions? 3 A. No. 4 Q. The document that you listed as the decision of 5 Judge Thompson, was that a minute order or was that a 6 transcript of his verbal rendering of his rulings after 7 the motion to suppress? 8 A. My recollection was that it was not a minute 9 order. It was a transcript of his rendering of the basis 10 of his decision and what the decision was. 11 Q. You have listed videotapes and transcript of 12 the interrogations of Michael Crowe, Joshua Treadway and 13 Aaron Houser. What transcripts were those? 14 A. I wasn't aware that there were different 15 versions of the transcript. They were the transcripts 16 that were provided to me by Mr. Silverman's office and 17 they were transcripts that appeared to be verbatim 18 renditions or transcriptions of the actual interrogation 19 tapes that I reviewed. 20 Q. Do you have any of those with you? 21 A. No, I don't. 22 Q. Do you recall whether on the cover it indicated 23 that they were prepared by a court reporting firm so they 24 looked like a regular deposition transcript with the label 25 of the court reporting firm on the front? 26 A. I don't recall. There was a label that had the 27 times and the dates so it appeared to me that they were 28 prepared by somebody. In my experience, attorneys don't Peterson & Associates Court Reporting, Inc. 9 1 make those designations. 2 Q. During the criminal proceeding, the district 3 attorney's office had transcripts made. The process by 4 which they did pretty much guaranteed that they were 5 fairly inaccurate. 6 For the civil case, we hired a court reporting 7 firm to sit down with a court reporter and a videotape and 8 transcribe it off the videotape. Those are the 9 transcripts which I believe you have probably reviewed 10 because we gave those to Mr. Silverman. I'm just trying 11 to confirm that. 12 A. We would have to ask Mr. Silverman, but that 13 would be my educated guess, because as I went through, I 14 didn't notice many errors. 15 Q. Have you reviewed anything that would inform 16 you of the times of day that a given interrogation began 17 and ended? 18 A. No, only to the extent that that was 19 memorialized on the transcript and mentioned during the 20 actual videotaped interrogation. Otherwise, I don't 21 believe I have. If I have, I don't recall at this point. 22 Q. Did you yourself attempt to make any type of 23 time lines or recreate how long the interrogations were 24 going before a given break occurred, that kind of thing? 25 A. No. 26 Q. In your report where you say you have reviewed 27 the videotapes and transcripts of the interrogations, did 28 you read the transcripts from end to end? Peterson & Associates Court Reporting, Inc. 10 1 A. I read the transcripts as I observed the actual 2 interrogations so, yes, but I didn't read them 3 separately. I was watching the interrogation, reading the 4 transcript, watching. 5 Q. Did you ever put the transcripts aside and just 6 watch the interrogations without looking at the 7 transcript? 8 A. No. 9 Q. How many times did you go through any given one 10 of the videotapes and transcripts? 11 A. Each of them one time. 12 Q. Did you watch the videotapes from end to end? 13 A. Yes. 14 Q. Each videotape on each interrogation of 15 Michael Crowe, Aaron Houser and Joshua Treadway? 16 A. Yes. 17 Q. As I understand, from your report, it's your 18 opinion that the interrogation of Michael Crowe, at least 19 by the time it concluded on January 23rd, 1998, produced a 20 coerced, persuaded confession; is that correct? 21 A. Correct. I would say coerced, persuaded, false 22 confession. 23 Q. That was going to be my next question. 24 Are you going to render an opinion that the 25 coerced, persuaded confession was actually false versus 26 just a coerced, persuaded confession that could either be 27 false or true? 28 A. I would, of course, offer questions that I was Peterson & Associates Court Reporting, Inc. 11 1 allowed to ask and, in fact, asked. If I were asked 2 whether or not it was my opinion this was a coerced, 3 persuaded, true or false confession, it's my opinion it's 4 a coerced, persuaded, false confession. 5 Q. It's my understanding from your testimony in 6 prior cases and your writings that the method by which you 7 purport to determine whether a coerced confession is false 8 or true is to analyze the post-confession narrative or the 9 post-admission narrative and look at how well it fits the 10 facts of the crime as those are determined from the 11 objective evidence; is that correct? 12 A. Correct. So what we would want to do is look 13 at the post-admission narrative. We use that term rather 14 than confession narrative. Everything the suspect says 15 after saying the words, I did it, and see whether or not 16 that post-admission narrative demonstrates independent 17 knowledge, the kind of knowledge that you would expect 18 somebody who committed the crime to know, not just with 19 regard to the dramatic details, but also mundane details. 20 Whether that post-admission narrative, absent 21 contamination or suggestion or prior knowledge fits the 22 crime scene facts, leads to new or missing evidence, 23 explains away abnormalities, tells police things they 24 didn't already know or you would expect the perpetrator to 25 know absent contamination or suggestion or prior 26 knowledge, whether or not it's corroborated by reliable 27 medical and physical and other credible evidence. 28 In many cases where a crime has occurred, Peterson & Associates Court Reporting, Inc. 12 1 particularly a violent crime or homicide and there's 2 physical evidence left at the crime scene, there's a 3 question whether or not that physical evidence left by the 4 perpetrator matches to the confessor. If it doesn't, 5 that's a red flag. 6 Obviously if the confessor's post-admission 7 narrative is in error, reveals ignorance, lack of 8 knowledge of the true crime facts, is contradicted by 9 other physical and medical evidence, that would all be 10 consistent with a false confession. 11 Q. So in order to make that analysis, you would 12 have to know what the true crime facts are; correct? 13 A. Correct. 14 Q. What have you done to appraise yourself with 15 what the true crime facts are with respect to the murder 16 of Stephanie Crowe? 17 A. I've reviewed these materials, the materials 18 that are enumerated here as well as in the December 31st 19 report. 20 The additional materials that I told you about 21 earlier in response to an earlier question. The case was 22 initially a criminal case, as you know, and for the 23 criminal case, I was retained by Don McInnis. I believe 24 this was in 1998, maybe '99. I think it was 1998. 25 I was retained by Don McInnis at that time on 26 behalf of Aaron Houser. I was provided materials at that 27 time. I studied the case carefully. I followed media 28 reports. I had been interviewed about the case. Peterson & Associates Court Reporting, Inc. 13 1 Over the years, in addition to these materials, 2 I've reviewed other materials and have tried to become 3 familiar with the case. 4 Q. Do you have any documentation of what materials 5 you were provided by Don McInnis when you were working on 6 the case with him? 7 A. Yes, not with me, but I could look at the file 8 and let you know which materials I've been provided. 9 Q. Are you relying on knowledge from those 10 materials in making your opinions on this case today? 11 A. I haven't parsed out what particular materials 12 I am or am not relying on. In general, no, the materials 13 that I'm relying on are these materials. 14 I guess what I mean to say, I don't know if any 15 of my knowledge about this case comes from materials that 16 aren't provided here. I think these materials are 17 comprehensive. 18 I think all my knowledge of this case is 19 included in these documents, but since I knew about this 20 case quite extensively prior to reviewing these materials, 21 some of which I reviewed before, I simply don't know the 22 answer to your question. 23 MR. ARNELL: When you talk about "These 24 materials," you're referencing materials you reviewed in 25 connection with this case? 26 THE WITNESS: Correct. For the record, the 27 materials that are enumerated on the two reports as well 28 as the materials that I enumerated in response to an Peterson & Associates Court Reporting, Inc. 14 1 earlier question. 2 Prior to being retained on this case, I already 3 had a great deal of knowledge about this case, but I 4 believe all the important information is contained in the 5 materials I've reviewed. I may be wrong. 6 MR. WAGGONER: Given that answer, Counsel, it 7 would be my position that we'll need the witness to list 8 for us the other materials that he has reviewed. I don't 9 think they probably need to be produced because I'm sure 10 most of it is stuff we have. We at least need a list of 11 the other materials the witness has reviewed, and if 12 there's something significant in there, it may cause a 13 need to redepose on that issue. 14 MR. ARNELL: That's something we can certainly 15 talk about. 16 MR. WAGGONER: At the very least, I believe 17 we're entitled to the list of what he reviewed earlier. 18 BY MR. WAGGONER: 19 Q. If a suspect doesn't actually give a 20 post-narrative or a post-admission narrative, in other 21 words, he basically stops at the words, "I did it," 22 doesn't add anything into that other than I don't recall 23 anything about how I did it or I just did it, then how do 24 you know since you can't compare the post-admission 25 narrative to the crime facts because he hasn't given you a 26 post-admission narrative? 27 How do you know whether that is a false 28 confession or true, whether it's coerced or not? Peterson & Associates Court Reporting, Inc. 15 1 A. You would want to look at the crime evidence. 2 You would want to see -- you would want to ask a number of 3 questions. For example, is there any evidence that a 4 crime occurred. There are times when people say they 5 committed crimes and there's no crime that occurred. I'm 6 giving you a general answer. Obviously in this case a 7 crime did occur. 8 There are also times when people admit to 9 crimes and it was physically impossible for them to have 10 committed that crime. One would want to ask that question 11 as well. 12 For example, somebody is in jail at the time 13 the crime occurs. It would be physically impossible for 14 them to have committed the crime. 15 One would want to look at scientific evidence, 16 evidence that could definitively or dispositively 17 exonerate or inculpate the individual such as blood, 18 fingerprint, DNA evidence. We know now that numerous 19 individuals have been exonerated through DNA. Not all of 20 them have confessed. 21 Of course, if the true perpetrator of a crime 22 is identified or confesses or convicted, that would be 23 independent evidence as well that the confession was 24 false. 25 I would want to ask all those questions, and I 26 would want to focus on what the physical evidence tells 27 you about who did or did not commit the crime. 28 Q. In your working life, have you ever worked as a Peterson & Associates Court Reporting, Inc. 16 1 police detective? 2 A. No. 3 Q. Have you ever worked for a police department at 4 all in the capacity as an officer? 5 A. No. 6 Q. Have you ever undergone any particular training 7 or taken any classes on the subject of criminal 8 investigation, crime scene investigation, anything that 9 would give you experience in investigating the crime scene 10 facts? 11 A. I need clarification. I think the question is 12 no. I have taken a number of police interviewing and 13 interrogation classes, but no classes just on crime scene 14 investigation or analysis. 15 Q. Is there anything in your education, 16 experience, training or background that qualifies you to 17 label yourself as an expert in performing the analysis as 18 to whether or not a post-admission narrative fits the 19 crime scene facts? 20 A. Well, part of my education, training and 21 experience has to do with studying the interrogation 22 process. The training is academic training, but it's 23 training to become a professor and researcher and I also 24 do training of others. 25 I've studied hundreds of interrogations. I 26 teach classes. I give classes to police. I'm regarded as 27 an expert in the analysis of interrogation. Not just the 28 causes of psychology of interrogation to confession, but Peterson & Associates Court Reporting, Inc. 17 1 also the analysis of the reliability or unreliability of 2 interrogation-induced statements. 3 So I would say that the sum total of my 4 educational training as well as my police training, the 5 research and publication and training that I do qualifies 6 me in the eyes of others to evaluate the fit between 7 post-admission narrative and crime scene facts and to 8 evaluate the reliability of whether an interrogation 9 induced statement -- whether they're likely reliable or 10 not. 11 The analysis of the post-admission narrative, 12 the analysis of reliability is inevitably based on 13 documents or opinions provided by others which are 14 incorporated into the analysis by any interrogation 15 expert. 16 For example, I don't conduct an autopsy, but in 17 that analysis, I might rely on an autopsy report. 18 I don't obviously conduct DNA tests or 19 fingerprint analyses, but I might rely on an analysis on 20 those documents and so it goes. 21 Q. Have you ever taken a class or been instructed 22 in some manner on the topic of how one goes about 23 analyzing the fit and how well a post-admission narrative 24 fits actual crime scene facts? 25 Have you taken any specialized training or 26 classes on that topic? 27 A. I did take a course in graduate school that was 28 on police interrogations specifically which included that Peterson & Associates Court Reporting, Inc. 18 1 as one aspect of it. 2 I believe I took a couple seminars on policing 3 and detective work and investigation that also included 4 that. 5 I've taught classes about that or have included 6 that. I've not taken a class just on that topic, 7 analyzing the reliability of interrogation-induced 8 statements or admissions or confessions, but that has been 9 included in classes that I've taken as well as in 10 materials that I've studied, reviewed, written about, 11 published. 12 Q. Have you ever worked in any type of a capacity 13 where your analysis of how well a post-admission narrative 14 fits the crime scene facts in a given case is then 15 reviewed by a supervisor? 16 A. No -- I should say not to my knowledge. The 17 reason why I say that is because in the summer, last 18 summer, July of 2002, I gave a three-day training session 19 to Brower County sheriff's office which I lectured for six 20 hours, three days in a row, to their felony investigations 21 about the problem with coercion and false confession. 22 As part of that training session, I went 23 through a number of cases that were false confessions and 24 the post-admission narrative of those cases. 25 It's possible that that was reviewed by a 26 supervisor after I left, but I was never told about that. 27 To my knowledge, the answer is no. 28 Q. You've certainly never been reviewed by a Peterson & Associates Court Reporting, Inc. 19 1 supervisor for whom you work; correct? 2 A. Correct. Again, let me issue a qualification 3 here. The research and publication that I do is reviewed 4 internally by my department, my chair, my dean and 5 ultimately an academic personnel committee and then a vice 6 chancellor in each stage of the merit promotion process. 7 No one has told me they specifically reviewed 8 my analysis of post-admission fit or unreliability of 9 particular confessions, but the body of my scholarship and 10 my service is reviewed by peers and superiors at the 11 university. 12 Q. You mentioned perhaps three courses where there 13 was training or at least discussion in the course of how 14 one performs the analysis to determine whether 15 post-admission narrative fits the crime scene facts. 16 Would you tell me the number of hours you think 17 between those three, number of hours instruction was 18 devoted to that topic. 19 A. It would have to be an educated guess. The 20 ideas are relatively straightforward, so the time that it 21 would be devoted to would be applying in practice or 22 studying cases where that analysis was involved. Maybe 10 23 hours, maybe 20 hours, maybe 50 hours. I don't know. It 24 would just depend. 25 There also would be the in-class -- you're 26 calling it training. I would just call it 27 lecture/discussion/analysis, and then the time spent 28 outside of class working on papers, reviewing materials, Peterson & Associates Court Reporting, Inc. 20 1 performing the analysis on my own, discussing it in class 2 subsequently. So I don't know. Anywhere from 10 to 50 3 hours, maybe. 4 Q. How long were those? 5 A. Three classes. 6 Q. How long were those three courses total? 7 A. The three courses would be 15 weeks on the 8 semester system. I don't remember if they were 3- or 9 4-hour classes per week. That would mean that there would 10 be 45 hours to 60 hours per class. Three times 45 to 60 11 is 135 to 180, so I suspect that the amount of time spent 12 on reliability or post-admission narrative issues in those 13 three classes would be closer to the 10 than the 50 hour 14 estimate. 15 Q. In your opinion, did Michael Crowe provide a 16 post-admission narrative? 17 A. My recollection of the interrogation on the 18 23rd is that he did make some statements. He repeatedly 19 said he didn't know, but they wouldn't accept that. 20 I do recall that he was asked how many times he 21 stabbed her and I believe he said three, but he couldn't 22 provide any specific details which is significant in the 23 evaluation of the post-admission narrative. 24 Q. My question remains. In your opinion, did 25 Michael Crowe provide what you would term a post-admission 26 narrative? 27 A. My answer would be yes. 28 Q. What did he say in that post-admission Peterson & Associates Court Reporting, Inc. 21 1 narrative? What information did he provide? 2 MR. ARNELL: Or not provide as his previous 3 answer reflects. 4 MR. WAGGONER: No. 5 BY MR. WAGGONER: 6 Q. My question is, what information did 7 Michael Crowe provide in his post-admission narrative that 8 you opined that he gave? If counsel wants to ask the 9 other question later, he may, but I want you to answer my 10 question. 11 A. Everything he says after the words, "I did it" 12 or what can be construed as, "I did it," including what he 13 writes in that letter that he's told to write to his dead 14 sister would comprise the post-admission narrative. 15 That's all in the transcript and on tape. 16 We could go back to that and isolate that 17 portion as the post-admission narrative portion of the 18 interrogation. I don't have a specific recollection of 19 everything he says. 20 I do recall that he makes the guess that's 21 erroneous about the number of times she was stabbed. I do 22 recall he repeatedly saying he doesn't remember, he 23 doesn't know, he must have done it. 24 The admission of ignorance that -- the 25 statements of ignorance, the inability to provide 26 information is also, technically speaking, part of the 27 post-admission narrative. 28 Q. Correct me if my recall is wrong or if you Peterson & Associates Court Reporting, Inc. 22 1 don't remember, just say that. 2 My memory of the point where he talked about 3 how many times he stabbed her was at the same time that he 4 was basically telling the officers, I'm going to tell you 5 a story now. I'm going to lie. And he tells a story and 6 says he stabbed her three times, and then at the same time 7 he's telling them, this is just a story I'm making up. 8 Then they go on from there. 9 Is that your recall, that's the point when that 10 statement was made about the three times stabbing? 11 A. Yeah. I don't think I would characterize it 12 the same way you did because they were telling him to use 13 his imagination and pressuring him and they broke him 14 down. 15 I would say it was in response to what they 16 were saying. It didn't just come up spontaneously but, 17 yes, he did say that. That's my recollection. 18 Q. He said it in the context of a statement that, 19 as he was saying it, he was telling the officers this is 20 not the truth, I'm making up a story here, and now as I'm 21 making up the story, I'm going to tell you I stabbed her 22 three times, and he says he stabbed her three times. 23 A. In response to what they were saying, yes. 24 Q. So setting that aside, what other information 25 can you recall as you sit here today that Michael Crowe 26 gave the officers during the post-admission narrative? 27 A. There's the information in the letter that he 28 writes out. There's information about how he said at that Peterson & Associates Court Reporting, Inc. 23 1 point or later in the interrogation how he felt about his 2 sister. 3 If I recall, he continued to guess or he 4 continued to say he had no memory, he didn't know how -- 5 he didn't talk about his fears. That whole discussion 6 after the letter I would characterize starting with -- if 7 my memory is accurate today, would all be a post-admission 8 phase, but the details beyond that, I don't specifically 9 recall at this moment. 10 Q. Let me ask you this and we'll get back to that, 11 but a foundational question. 12 When did you physically sit down and review the 13 tapes with the transcripts? 14 A. It would be in the month of November. 15 Q. Sometime immediately prior to writing your 16 report? 17 A. Correct. 18 Q. You haven't rereviewed them since? 19 A. Correct. 20 Q. Let me try this. You can disagree if you want 21 to, but if I were to adopt your own vernacular, your own 22 analysis and step into your shoes for a moment, I would 23 say that there isn't a post-admission narrative by Michael 24 Crowe, that what you really have is just a protracted 25 admission, just a repeated admission. 26 I did it, I did it, and each time he throws 27 different verbiage in with it, but he never really engages 28 in a post-admission narrative. Peterson & Associates Court Reporting, Inc. 24 1 You simply have a protracted admission. Don't 2 you think that's more accurate of a description of what 3 happened with Michael Crowe's interrogation? 4 A. No. I would disagree. 5 Q. Why? 6 A. The reason why I would disagree is that 7 Michael Crowe struggles to find the memory. He doesn't 8 have the memory. He's convinced he must have done it. He 9 responds to the lies and pressure and threats the way 10 they've broken him down over that time period of the 11 interrogation. 12 He struggles to make sense of it, to come up 13 with an account, and he can't because he doesn't have that 14 memory even though they convinced him he must have done 15 this or he likely did this. 16 So he's simultaneously denying as he's 17 admitting, confused, trying to find the memory. I think 18 he says in the letter. The only reason I'm saying this, 19 they said I did it or later in the interrogation, I think 20 the evidence shows it. So I think what you have is 21 someone who is struggling to find a nonexistent memory and 22 actively guessing, which is what he's being encouraged to 23 do using his imagination. 24 But, ultimately, he can't find the details 25 because he lacks the knowledge or memory of having 26 committed the crime because he didn't commit the crime and 27 was unable to regard what I understand to provide 28 post-narrative admission, a detailed and elaborate story Peterson & Associates Court Reporting, Inc. 25 1 about how he did or could have committed the crime. 2 Nevertheless, I think that everything he 3 provides is itself a narrative. It's a failed narrative. 4 It's an incomplete narrative. It's an equivocating, 5 hesitating narrative. It's a narrative based on 6 speculation, frustration, inability to provide any details 7 because he doesn't know them. 8 Q. What information in that narrative is there 9 that he provided that you could take and compare to the 10 crime scene to perform the analysis as to whether or not 11 that narrative fits this crime scene? 12 A. Again, I would have to review it. My 13 recollection at this point is the stabbing. He stabbed 14 her three times. 15 My understanding is that she wasn't stabbed 16 three times. If, in fact, he had stabbed her, presumably 17 there would be evidence -- given the violent manner in 18 which she died, there would be evidence linked to him 19 which my understanding there is none. 20 Q. Now you're going outside the question. The 21 question is not what there would be out there and what the 22 crime scene would have. 23 The question is focusing on the content of the 24 post-admission narrative. You established one thing, one 25 piece of information in the post-admission narrative you 26 could take and go to the crime scene, if imperative, in 27 the number of times the victim was stabbed. 28 I want to ask you, can you identify any other Peterson & Associates Court Reporting, Inc. 26 1 piece of information in Michael Crowe's post-admission 2 narrative that you could go to the crime scene and compare 3 the accuracy of that piece of information? 4 A. Well, I think we may have a different 5 understanding of crime scene. The post-admission 6 narrative was compared to crime scene facts. Of course 7 the crime scene is his home and he has shoes and clothes 8 in his home, and so if he says he stabbed her in the 9 post-admission narrative, we can compare that to physical 10 evidence at the crime scene at the home such as his 11 clothes and anything you would expect to be evidence of 12 the fact that he stabbed her, and there is none. 13 I thought I was actually inside the question, as I 14 understood it. 15 Q. It sounds to me like you're going ahead and 16 making the comparison between his statement, "I stabbed 17 her three times," and the crime scene facts. 18 I understand, but I'm not interested in making 19 that comparison right now. What I'm interested in knowing 20 is the universe of items of information that we're going 21 to be comparing when making this analysis. 22 So far in that universe I hear you to include 23 his statement that he stabbed her three times. 24 I want to know if there is anything else in the 25 post-admission narrative that is a piece of admission that 26 can be compared to the crime facts. 27 A. I would have to go through it again to tell you 28 what else. I'm telling you, that's all I recall. There Peterson & Associates Court Reporting, Inc. 27 1 may be other information. That specific statement about 2 stabbing her, but it's not -- not just that statement, but 3 it's everything else that he says that can be compared 4 that would be within the universe. 5 Q. That's what I want you to identify for me. 6 What other things did he say that are in that universe? 7 My understanding is you're saying you can't recall 8 anything else about this one statement about how many 9 times he stabbed her; is that correct? 10 A. At the moment, that's right, but if somebody 11 were to provide me the post-admission portion of his 12 interrogation at a break and I were able to review it, I 13 might be able to identify other specific points of 14 comparison as well, if I understand your question 15 correctly. 16 Q. But you understood that you were to be prepared 17 to offer your opinions and testify about this case as of 18 today, the date of your deposition; correct? You knew 19 that before you came in here? 20 MR. ARNELL: There's a mountain of paperwork in 21 this case and no witness can be expected to pull every 22 fact, not knowing your questions ahead of time, out of 23 thin air. 24 If you have a document you want him to review 25 to get more information that's been marked as an exhibit, 26 why don't we show it to him. 27 MR. WAGGONER: Counsel, if you want to make an 28 objection, make your objection. Peterson & Associates Court Reporting, Inc. 28 1 MR. ARNELL: That's my objection. 2 MR. WAGGONER: That's not an objection. 3 MR. ARNELL: It's overbroad, calls for 4 speculation without showing him any document you want him 5 to talk about. 6 MR. TAYLOR: It's argumentative. 7 THE WITNESS: As I mentioned earlier, I've been 8 deposed eight times before so I've been through this 9 process. 10 In my experience in depositions, at least in 11 civil cases, usually there are particular questions about 12 the report that I've written, but it's not my 13 understanding that I have to master all the key details 14 and all the documents that may have been provided to me. 15 If I had been provided with interrogatories and 16 had time to know exactly which questions you were asking, 17 needless to say, I could have gone through a particular 18 document. 19 BY MR. WAGGONER: 20 Q. When I asked you earlier about the extent of 21 your opinions, you said your opinion is not only that, in 22 your vernacular, Michael Crowe's interrogation produced a 23 coerced, persuaded confession, but it produced a coerced, 24 persuaded, false confession. 25 What I want you to do is tell me what is the 26 basis for that portion of that label that you're putting 27 on that interrogation that says it's false -- 28 A. I'm just going to get some water. Peterson & Associates Court Reporting, Inc. 29 1 Q. Let me finish -- as opposed to a coerced, 2 persuaded, true admission. You admit you can have a 3 coerced, persuaded confession that is either true or 4 false; correct? 5 A. I think you can have a coerced confession that 6 is either true or false. I don't know that it's logically 7 possible to have a coerced -- maybe it is logically 8 possible, but highly unlikely to have a coerced -- it's 9 possible to have a coerced, true confession and a coerced, 10 false confession. 11 Q. What I want to focus on is not -- in response 12 to this particular question, I'm not interested in 13 focusing on why you believe it's coerced, but why you 14 believe that coercion produced a false confession as 15 opposed to a true confession. We can take a break. 16 A. We don't need to take a break if I can grab 17 water real quick. 18 As I understand your question, you want me to 19 tell you what the basis is for my opinion that 20 Michael Crowe's confession is false, and there are a 21 number of reasons why I believe this is a false 22 confession. 23 The primary reason is because there was 24 absolutely no physical evidence linking him to the crime 25 as you would expect there to be if, in fact, he committed 26 this crime and, yet, there was substantial evidence, in my 27 opinion, linking somebody else to the crime, dispositive 28 evidence, by Richard Tuite. Peterson & Associates Court Reporting, Inc. 30 1 So the blood of the victim, Stephanie Crowe, 2 was found on Richard Tuite's shirt, which I think is the 3 most significant fact in any analysis of whether this is a 4 true or a false confession. 5 Two experts' reports that I've read -- I should 6 say one expert's report, Dr. Thornton -- I'm aware of 7 another, Dr. Blake. Both believe that blood wasn't an 8 airborne spatter pattern which would be consistent with 9 Richard Tuite having killed Stephanie Crowe. 10 If one looks at the accounts given by Crowe and 11 primarily Treadway, there are a number of things that you 12 would expect. 13 There's no blood in the sink. There's no blood 14 in the kitchen. There's no blood on the Best Defense 15 knife. There's no blood on anyone's clothing. All of 16 these things should be true if those confessions or 17 admissions are true. 18 There is the error that I mentioned earlier. 19 The guessing of three stabs as opposed to nine stabs 20 establishes the fact that Michael Crowe does not -- seems 21 to know very little about how the crime actually occurred, 22 that he can tell them nothing. His post-admission 23 narrative is mostly about the ignorance of the crime scene 24 facts. 25 There's also time of death issues, but that 26 really goes more to Treadway. I would say these are my 27 primary reasons and emphasize the evidence linking 28 Richard Tuite, who I understand even admitted being in the Peterson & Associates Court Reporting, Inc. 31 1 house and was sighted by neighbors being in the area and 2 of course has a criminal history of violence. 3 All of these factors would be the basis for my 4 opinion, but primarily the blood of the victim found on 5 Richard Tuite's shirt. 6 Q. You mentioned the lack of blood in the sink. 7 What sink are you referring to? 8 A. The kitchen sink. 9 Q. Why would the lack of blood in the kitchen sink 10 have anything whatsoever to do with determining the truth 11 of Michael Crowe's confession? 12 A. It would go to Joshua Treadway's. 13 Q. So Michael Crowe never said anything about 14 blood that would indicate there should be blood in the 15 kitchen sink; correct? 16 A. Correct. 17 Q. You mentioned blood on the knife. What knife 18 were you referring to? 19 A. The Best Defense knife. 20 Q. What about Michael Crowe's confession would 21 lead you to believe there should be blood on that knife? 22 A. My recollection is nothing because he didn't 23 mention that knife specifically. If my recollection is 24 accurate, it would just be Joshua Treadway's 25 interrogation. 26 Q. Those pieces of information don't have any 27 relevance to establishing the veracity or the truth of 28 Michael Crowe's confession; isn't that correct? Peterson & Associates Court Reporting, Inc. 32 1 A. Well, I think yes. If one infers 2 Michael Crowe's guilt from things that were said by 3 Joshua Treadway, that would be where they're relevant. 4 If one just looks at Michael Crowe's statements 5 in isolation, correct. 6 Q. You're not an expert on blood spatter 7 interpretation? 8 A. Correct. 9 Q. You're not an expert in any field that would 10 give you an ability to opine whether or not a weapon 11 should or shouldn't have blood on it after it's been used 12 in a given fashion? 13 A. Correct. I rely on the opinions of other 14 experts. 15 Q. Have you reviewed the depositions of these 16 other experts that you've relied on, such as Dr. Thornton? 17 A. No. 18 MR. ARNELL: I don't believe it's available 19 yet, for the record. 20 BY MR. WAGGONER: 21 Q. Have you reviewed any of the reports of experts 22 hired by the civil defense attorneys in opposition to 23 these experts that you've reviewed? 24 A. No. The only reports that I've reviewed are 25 the ones that I mentioned. I believe Mr. Buckley's 26 report, and if I recall correctly, Mr. Cary's report, but 27 those don't go to physical evidence that you're speaking 28 of. Peterson & Associates Court Reporting, Inc. 33 1 Q. As a general proposition, when you're making 2 the analysis of how well a post-admission narrative fits 3 the crime scene facts, how close does the fit have to be 4 before you decide, yes, this one is a true confession or 5 how far off does it have to be before one decides yes, 6 this confession is false? Where along that continuum is 7 the dividing -- 8 A. One can determine -- let me start with the end 9 of the question and work back. 10 With regard to a false confession or a false 11 admission, that the admission is false in the absence of a 12 post-admission narrative, if external evidence, like I 13 mentioned earlier dispositively identifies or proves that 14 another person did the crime. So you could determine that 15 a confession or admission is false independent of the 16 post-admission narrative. 17 With regard to whether a confession is false, 18 it's not always the case that the facts of the case will 19 allow for that. There's no mathematical formula when you 20 apply the post-admission narrative, but there's some 21 obvious general principles involved. This is responsive 22 to your question. 23 What you want to know, you want to look at the 24 details of the post-admission narrative that were not 25 suggested to the person or they did not previously know 26 and the likelihood of guessing those by chance, how 27 probable or improbable they were. 28 If you ask somebody whether or not the body is Peterson & Associates Court Reporting, Inc. 34 1 up or face down, you can guess. If somebody leads you to 2 the murder weapon or to a buried body or describes a 3 killing or crime that occurred in a very idiosyncratic way 4 and there's no way somebody would know on their own that 5 one key fact, if uncontaminated or not the product of 6 suggestion or prior knowledge could be enough to make a 7 post-admission narrative that was consistent with guilt. 8 So to think of it in terms of false confession 9 and true confession or what's consistent with a true 10 confession, what's consistent with a false confession, if 11 the confessor provides detail that could not have been 12 guessed by chance or would have been one in a million, one 13 in ten million, one significant detail that could be not a 14 guess by chance, was not the product of contamination or 15 prior suggestion or prior knowledge, that might be enough 16 to reach the conclusion that the post-admission narrative 17 is consistent with a reliable confession. 18 If you have a number of errors -- moving to 19 what's consistent with an unreliable or false 20 confession -- if you have a number of errors and no 21 demonstration of independent knowledge, that is consistent 22 with an unreliable confession or admission, but there is 23 no point at which the lack of fit in the post-admission 24 narrative can absolutely prove the confession is false. 25 It can only be consistent with a false confession, 26 strongly consistent, overwhelmingly consistent. 27 The only way you can prove to 100 percent 28 certainty that confession is false is if you can show that Peterson & Associates Court Reporting, Inc. 35 1 no crime occurred, that it was physically impossible for 2 the confessor to have committed the crime. That 3 scientific evidence dispositively absolves or exonerates 4 the defendant, which I believe occurred here, or if the 5 true perpetrator was identified, as I also believe 6 occurred. 7 Q. If there is a mixed bag, so to speak, where the 8 post-admission narrative has some facts that one could 9 argue fit the crime scene facts and some that don't, what, 10 in your training, experience, education makes you an 11 expert at determining at what point do we now decide that 12 this one is true or false, that the facts have lined up 13 sufficiently or they haven't lined up sufficiently? 14 A. I answered earlier about the education and the 15 research and the training where I studied and taught and 16 applied and have written about post-admission narratives. 17 So I would just, with regard to part of the 18 answer to the question, I would say all of that makes me 19 an expert in this area: the study of interrogation, 20 coercion and false confession, one part which is the 21 post-admission narrative. 22 There are three possibilities when you evaluate 23 a post-admission narrative: that the statement is 24 consistent with a reliable and true confession; that 25 there's no way of telling because it's a badly 26 contaminated post-admission narrative or the interrogation 27 is not preserved and there's no way of knowing what part 28 of the suggestion came from the confessor and what came Peterson & Associates Court Reporting, Inc. 36 1 from outside sources or perhaps no way of knowing prior 2 knowledge. 3 Then the determination that it's consistent 4 with a reliable and -- unreliable, rather, confession. 5 I can't give you a mathematical formula. I 6 can't tell you precisely at what point one might make one 7 judgment as to another. I can only tell you general 8 principles and then apply them to a particular case. I 9 laid out the general principles in an earlier answer. 10 If, as you say in this question, you had a 11 mixed bag, you had some hits and some misses in that 12 post-admission narrative, the first question that you want 13 to know is, what came from the interrogator and what was 14 the prior knowledge of the suspect. 15 If the suspect had no prior knowledge through 16 media exposure or gossip or personal knowledge of the 17 crime or its participants -- if the confessor had no prior 18 knowledge, and if you can demonstrate that there was no 19 suggestion, no contamination, and if in that grab bag of 20 details that there were accurate and details that were 21 inaccurate, the details that were accurate were highly 22 unlikely to be guessed at by chance, such as leading to or 23 saying where implements at remote locations were buried in 24 difficult to find ways, for example, then I think one 25 would go to the conclusion that that's consistent with a 26 reliable post-admission narrative. 27 If on the other hand there is a mix and one can 28 demonstrate that the person is only repeating knowledge Peterson & Associates Court Reporting, Inc. 37 1 that he had in the accurate details, repeating knowledge 2 that he knew previous to the interrogation or that he 3 could have easily guessed at by chance or that they are 4 the product of feeding and leading suggestions by the 5 interrogator or police or interrogators, then that would 6 lead to the opposite judgment, that it's not probative, 7 the correct details, and the errors are more probative 8 than that. They would be more consistent with an 9 unreliable or false confession. 10 MR. LOEDING: I would object that that response 11 is nonresponsive to the question which I think is what 12 makes you an expert in terms of analyzing evidence in 13 determining whether a confession is true or false. I 14 don't remember the question. 15 BY MR. WAGGONER: 16 Q. Is that the question you were trying to 17 answer? I think he stated it correctly. 18 MR. ARNELL: I think it was responsive to the 19 question. If you have anything to add to that answer, 20 feel free. 21 THE WITNESS: My understanding, to answer your 22 question, that was not the question that he asked. 23 The question, and I could be wrong -- it's on 24 the record. The question he (indicating) remembers was 25 asked earlier. I think you asked a compound question so 26 you asked not only a question you asked earlier about my 27 expertise, but you also hypothesized a scenario where 28 there was a grab bag, true/false, how do you do it. I Peterson & Associates Court Reporting, Inc. 38 1 thought I was answering both questions. 2 BY MR. WAGGONER: 3 Q. You said you reviewed Judge Thompson's ruling. 4 What was your understanding of his ruling about the 5 confessions in this case? 6 A. My understanding of his ruling was that 7 Michael Crowe's interrogation was coercive. His 8 statements were, therefore, involuntary and had to be 9 suppressed. 10 Joshua Treadway's first interrogation on the 11 27th and 28th were coercive, the statements were 12 involuntary, they had to be suppressed. 13 Joshua Treadway's second interrogation on 14 February 10th, the statements were voluntary on the 14th 15 amendment analysis, but had to be suppressed up to the 16 last two hours because no Miranda warnings were given and 17 so only the last two hours or so after the Miranda 18 warnings were given were admissible. 19 Then, finally, turning to Aaron Houser, the 20 statements were voluntary, but inadmissible because of 21 Miranda violations. That's my recollection. 22 Q. I hope I'm not confusing you with someone else. 23 You have a Ph.D. and a J.D.; correct? 24 A. Correct. 25 Q. What law school did you go to? 26 A. Bolt, UC Berkeley. 27 Q. Have you ever practiced as an attorney? 28 A. No. I've never taken the bar or practiced. Peterson & Associates Court Reporting, Inc. 39 1 Q. Do you have an understanding from your law 2 school education of why the judge would be making the 3 ruling on the February 10th statements of Joshua Treadway, 4 the pre-Miranda statements, as to whether or not they were 5 voluntary if he's going to rule that they're inadmissible 6 because of lack of Miranda anyway? Why does he go ahead 7 and make the ruling that they're voluntary? 8 MR. TAYLOR: I'll object. It's outside the 9 scope of his expertise. 10 MR. ARNELL: I'll join. Also calls for 11 speculation. 12 MR. WAGGONER: Gosh, I hope it's not 13 speculative from a graduate of Bolt Hall. 14 MR. ARNELL: It's speculative as to what the 15 judge was thinking when he made his rulings. 16 MR. WAGGONER: I'm still hoping someone from 17 Bolt Hall can give us a good answer to that. 18 THE WITNESS: I think I can answer generally. 19 I would just say that I did not read the motions prepared 20 by the defense in the criminal case on the multiple 21 grounds or the grounds on which they were trying to 22 suppress a confession. 23 As a general matter, though, defense attorneys 24 sometimes will try to suppress the confession on multiple 25 grounds: violations of the 5th and 14th, primarily, 26 sometimes the 6th amendment. 27 It may have been that the defense in that case 28 was trying to get the confession suppressed both with Peterson & Associates Court Reporting, Inc. 40 1 regard to the 5th amendment Miranda violations and due 2 process violations and that the judge had to make those 3 separate determinations, and in the judge's opinion, there 4 wasn't a 14th amendment violation, but there was a 5th 5 amendment violation. 6 Once that 5th amendment violation was 7 attenuated, in the opinion, by the giving of the Miranda 8 warnings, there was no longer a 5th amendment violation. 9 BY MR. WAGGONER: 10 Q. Do you recall from law school or from your 11 reading sense that there is U.S. Supreme Court case law 12 that says, if there is a violation of Miranda, that is, 13 simply a violation of Miranda, but that there is, 14 nevertheless, a voluntary statement obtained from the 15 suspect such that Miranda causes that statement to be 16 inadmissible but it's, nevertheless, a voluntary 17 statement, one that is voluntarily made, that in that 18 case, although because of Miranda and its inadmissibility, 19 the prosecution cannot introduce that statement in its 20 case-in-chief? 21 The U.S. Supreme Court has said, in that 22 situation, nevertheless, if that person takes the stand, 23 the prosecution agrees to impeach that suspect. Do you 24 recall that law? 25 A. Yes, I do. New York -v- Harris, 1971 case, I 26 think. It establishes the impeachment exception. 27 Q. It would be consistent with the judge's duty to 28 let the prosecution know that they can use Peterson & Associates Court Reporting, Inc. 41 1 Joshua Treadway's February 10th statement pre-Miranda as 2 impeachment material if he takes the stand for him to go 3 ahead and make that finding that that pre-Miranda portion 4 of his statement is voluntary; isn't that right? 5 MR. TAYLOR: Again, I think this is outside 6 his area of expertise. 7 THE WITNESS: I was a little confused by the 8 way you worded that question. I think the answer is yes, 9 but I'm a little bit confused by the question because, as 10 I understand it, the judges don't have obligations to 11 inform prosecutors or defense attorneys how to litigate 12 their cases, and judges respond to motions that are 13 brought before them, and the presumption is, of course, 14 prosecutors and defense attorneys will know the law. 15 I think that is an important fact in a 16 suppression hearing. If there is a Miranda violation, 17 there is also a 14th amendment due process violation 18 because the impeachment exception that applies to Miranda 19 does not apply to the 14th amendment. 20 So if a judge finds hypothetically there is a 21 Miranda violation and there is a due process voluntary 22 violation, if the person takes the stand, presumably they 23 couldn't be impeached. 24 BY MR. WAGGONER: 25 Q. Do you understand from Judge Thompson's rulings 26 that in ruling that Joshua Treadway's statements 27 throughout the day on February 10th were uncoerced and 28 were not the product of any coercion that had occurred Peterson & Associates Court Reporting, Inc. 42 1 back on the 27th and 28th of January, that in that ruling, 2 he is in stark disagreement with your opinion that that 3 statement of Joshua Treadway on February 10th is the 4 product of coercion? 5 A. Yes. My opinion differs from Judge Thompson's 6 opinion. 7 Q. You have a copy of your November 30th, 2002 8 report; correct? 9 A. I believe that I do. Yes, I do. 10 Q. Attached to that report near the back of it is 11 a portion labeled Dr. Richard Leo's court testimony and 12 deposition testimony from November '98 to November 2002. 13 Do you have that portion? 14 A. I do not have that with me, no. 15 Q. Hopefully you can -- 16 A. I inadvertently forgot to bring that. 17 Q. I'm going to ask you questions about that and 18 we can share this. 19 Otherwise, you list the various cases that 20 you've testified in. The first one is State of California 21 versus Phillip Kendrick; is that correct? 22 A. Correct, in that four-year period. 23 Q. Do you recall what that case was about? I just 24 want a yes or no response. 25 A. I recall some aspects of the case, not a lot. 26 Q. Do you recall, when you testified, that was a 27 judge trial or a jury trial? 28 A. My recollection is I testified at the Peterson & Associates Court Reporting, Inc. 43 1 suppression motion. I didn't testify at that trial. 2 Actually, it may not have been a suppression 3 motion. It may have been a motion in limine. It may have 4 been a preliminary hearing. It was a pre-trial motion. 5 The effort was being made by the defense to suppress the 6 confession. 7 Q. Was the subject of your testimony an opinion by 8 you that the defendant in that case had been coerced into 9 providing a false confession? 10 A. That's not my recollection. Of course, if the 11 transcript exists, then that could answer the question, 12 but my recollection is that the testimony at this 13 preliminary hearing was not about reliability issues. It 14 was not about whether it was a false or unreliable 15 confession. It was about the techniques used by the 16 interrogator and whether those techniques were coercive or 17 not, but there was a lot of general testimony about the 18 Reid method and about police interrogations, psychological 19 process, what the techniques are, how they work, when, 20 why, whether they're coercive, that sort of thing. 21 Q. You said the Reid method? 22 A. Spelled R-e-i-d, yes. 23 Q. So your testimony, other than -- I realize it 24 had a lot of general information in it as well, but 25 basically the conclusion of your testimony in that case 26 was that the defendant's confession was coerced, but you 27 didn't go beyond that as to whether or not it was false or 28 true. Is that a fair statement? Peterson & Associates Court Reporting, Inc. 44 1 A. Yes, I think so, with this qualification. 2 Sometimes at these pretrial hearings on the issue of 3 coercion or volunteeringness, the judge elicits or 4 permits my opinion on whether or not I think it's coercive 5 and sometimes the judge just wants general information. 6 I do not recall specifically in this case I 7 just talked generally about coercion and interrogation, 8 psychology of interrogation and confession or whether I 9 was asked specifically to opine about the particular case. 10 Q. Do you have an understanding of why, in some 11 cases, a judge would limit your testimony to the simple 12 concepts about coercion and interrogations, in general, 13 and not allow you to go forward and opine about whether or 14 not this particular confession was coerced or whether or 15 not a particular tactic was, in fact, coerced? 16 A. Yes. 17 Q. What's your understanding of that? 18 A. My understanding is that prosecutors often make 19 the argument it would invade the province of the jury to 20 let the expert opine about whether the interrogation was 21 coercive or true or false. In pretrial hearings, the 22 issue is usually not whether the confession was true or 23 false. 24 So in my experience, prosecutors will make that 25 argument. In my experience, usually the judge will reject 26 it in the pretrial hearing. They will want to know 27 whether or not it's coercive or improper. But at the 28 trial, when the same argument is made, the judge will Peterson & Associates Court Reporting, Inc. 45 1 usually accept it. 2 Q. Have you kept records of how many times in all 3 this previous testimony you've actually been allowed to 4 testify to a jury or to a judge during the trial, not 5 during the pretrial, on the issue of whether or not the 6 subject confession was, in fact, coerced and/or false or 7 true? 8 A. Well, I have kept records on the times that 9 I've been permitted to testify or have testified, but the 10 second part of your question, I have not kept specific 11 records on what I've been permitted to testify or 12 qualified in. 13 Each case presents unique case facts and 14 sometimes I'm qualified differently and asked different 15 questions, but yes, I do have a breakdown of the number of 16 times that I've testified before a jury and/or bench trial 17 as well as suppression hearings or pretrial hearings as 18 well as post-conviction hearings. 19 Q. That's a document that we haven't been 20 provided? 21 A. Correct. It wasn't my understanding that you 22 asked for this document, but I have no problem providing 23 the document as long as I get it back. 24 Q. Admitting that you don't have this document, 25 can you give me an estimate of the percentage of times 26 you've testified, not pretrial, but during a trial, 27 whether judge or jury -- can you give me an estimate of 28 the percentage of times that in that testimony you've Peterson & Associates Court Reporting, Inc. 46 1 actually been allowed to opine as to whether or not the 2 subject confession was, in fact, coerced? 3 MR. ARNELL: Are you talking criminal cases or 4 criminal and/or civil or the entire universe? 5 MR. WAGGONER: The entire universe. 6 THE WITNESS: The number -- I've testified 47 7 times at jury or bench trials. I was thinking as you 8 asked the question. I want to make sure I recall the 9 question. 10 The number of times that I've been permitted to 11 opine at trial that the confession was coerced? 12 BY MR. WAGGONER: 13 Q. Was or was not coerced, either way. 14 MR. ARNELL: I think you asked for the 15 percentage. 16 THE WITNESS: I don't know the percentage of 17 cases in which I would have been able to opine that. 18 BY MR. WAGGONER: 19 Q. Would it help you provide an estimate if you 20 were asked whether the number of times or percentage of 21 times -- it doesn't matter to me -- can you give me any 22 estimate at all? 23 A. I really don't recall. It would have to be a 24 complete guess, but I would say a very small percentage of 25 cases where the judge would permit me to opine whether or 26 not the actual interrogation itself was coerced. Possibly 27 none of the cases. 28 Questions may have been asked hypothetically, Peterson & Associates Court Reporting, Inc. 47 1 if they did this, this and this, was that coerced which is 2 based on what occurred in the interrogation. 3 Q. The second question, basically, how many times 4 out of that total number of times you've testified at 5 trial, how many times, expressed as a number or 6 percentage, have you been permitted to testify that the 7 subject confession was or was not false? 8 A. I don't think I've ever been permitted to 9 testify as to that. 10 Q. Let's go back to State of California versus 11 **Kendrick. You said you testified, as you recall, in 12 some type of a pretrial motion hearing; correct? 13 A. Yes. After you asked me that question, 14 Mr. Arnell provided me with the actual document that 15 you're referring to. It says testified at preliminary 16 hearing. If the document is accurate, it was a 17 preliminary hearing. If not, it was some other pretrial 18 hearing. 19 Q. Do you recall as you sit here today what your 20 opinion was as to the confession that was the subject of 21 that preliminary hearing -- did you have an opinion 22 whether it was a coerced confession or a false confession 23 or a non-coerced confession? 24 A. My recollection which is vague at this point is 25 that I was not asked to opine about whether or not it was 26 a false confession. 27 My opinion was that there were coercive 28 techniques used in the interrogation or interrogations Peterson & Associates Court Reporting, Inc. 48 1 that produced that confession. 2 Q. The coercive techniques that you opined that 3 were used in that interrogation were employed by police 4 officers; correct? 5 A. Police interrogators is my recollection. 6 Q. It was some law enforcement officer? 7 A. Correct. 8 Q. Do you know whether the confession was or was 9 not suppressed in that case? 10 A. No, I don't. 11 Q. You don't know what the ultimate ruling was? 12 A. No. 13 Q. In the State of California versus **Rodelio 14 Lopez, it says you testified there in a motion in limine; 15 is that correct? 16 A. I believe that's correct. 17 Q. The motion was to suppress the defendant's 18 confession; correct? 19 A. Correct. 20 Q. Do you recall, was it your opinion that that 21 confession was a coerced confession? 22 A. That is my recollection, yes. 23 Q. That's what you testified? 24 A. I don't know that I was permitted to give that 25 specific opinion. I may have given that specific opinion, 26 but I believe I testified, at least generally, about 27 coercion and coerced confessions. I may have testified 28 about the techniques in that confession and why they were Peterson & Associates Court Reporting, Inc. 49 1 coercive. 2 Q. Do you know what the results were as to the 3 judge's ruling? Was that confession suppressed or not? 4 A. My recollection was I was told by the defense 5 attorney subsequent to the hearing that it was suppressed. 6 Q. State of California versus **Louis Peoples. It 7 says you testified at a motion to suppress hearing; is 8 that correct? 9 A. Correct. 10 Q. Was it your opinion in that case that that 11 confession had been coerced? 12 A. It was my opinion. I don't know whether I was 13 permitted to state that opinion at the suppression 14 hearing, but that was my opinion. 15 Q. Did you learn of the results of that motion to 16 suppress? 17 A. I learned of the results of the case. I 18 believe that the defense attorney told me, if my 19 recollection is accurate, the confession was not 20 suppressed. 21 Q. Was it Mr. Peoples' confession you were talking 22 about or somebody else's? 23 A. Yes, Mr. Peoples' confession. 24 Q. Was he ultimately convicted? 25 A. Yes. 26 Q. Of the crime that he had confessed to? 27 A. Yes. 28 Q. Going back to Mr. Lopez. Do you know what the Peterson & Associates Court Reporting, Inc. 50 1 result was as to whether or not he was convicted of the 2 crime that he had confessed to? 3 A. My recollection is that the case was dismissed 4 because the only evidence was the coerced confession. 5 Q. As to Mr. Kendrick, do you know whether or not 6 he was convicted of the crime that he confessed to? 7 A. I believe that he was convicted. I don't know 8 whether he was convicted of the crime he confessed to 9 specifically, but I believe he was convicted. I'm not 100 10 percent sure, but that's my vague recollection. 11 Q. No. 4, State of Washington versus Javier De 12 Leon. 13 MR. WAGGONER: For the record, I'll make a copy 14 so you can get these names spelled correctly. 15 BY MR. WAGGONER: 16 Q. You testified at a 3.5 hearing, then in 17 parentheses, (pretrial suppression hearing), so I take it 18 that's what they call a pretrial suppression hearing in 19 the State of Washington? 20 A. That's my understanding, yes. 21 Q. So you did testify at a pretrial suppression 22 hearing in that case? 23 A. Correct. 24 Q. Did you testify that Mr. De Leon's confession 25 was coerced? 26 A. I don't recall whether I was permitted to give 27 that specific opinion or whether it was general testimony. 28 Q. Was it your opinion that his confession was Peterson & Associates Court Reporting, Inc. 51 1 coerced? 2 A. I have very little recollection of what 3 occurred during that interrogation so I would assume so, 4 but I don't recall. I don't recall at this point. 5 Q. It's unlikely the criminal defense lawyer would 6 call you to the stand in a case where you did not think 7 his client's confession was coerced; is that correct? 8 A. Correct. 9 Q. Do you recall the results of that suppression 10 hearing, whether or not Mr. De Leon's confession was 11 suppressed? 12 A. No, I don't recall. 13 Q. Do you know whether or not he was convicted of 14 the crimes he confessed to? 15 A. I know I had a conversation with the attorney 16 at some point. I don't recall whether he took a plea 17 bargain or was convicted. Possibly he was aquitted. I 18 think he probably -- 19 MR. ARNELL: Don't guess. 20 THE WITNESS: I have a vague recollection. I 21 don't know. 22 BY MR. WAGGONER: 23 Q. Your best vague recollection is he was 24 convicted in some way? 25 A. My best guess would be that he was convicted. 26 Q. No. 5, State of Indiana versus Howard Allen. 27 You testified at a post-conviction evidentiary hearing? 28 A. Correct. Peterson & Associates Court Reporting, Inc. 52 1 Q. Do you recall what the nature of your testimony 2 was in that case? 3 A. No, I don't. 4 Q. How was it that your testimony would be 5 relevant in a post-conviction setting, just in general? 6 A. It depends on the issues that are being argued 7 on appeal. Sometimes there are Miranda issues and I'm 8 asked about Miranda issues. 9 As a general answer, there may be issues about 10 ineffective assistance of counsel and failure to call an 11 expert such as myself, or failure to make an argument the 12 statements were voluntary and should have been 13 suppressed. I might be asked to review a record and 14 comment whether it was coercive or there were Miranda 15 violations or what an expert such as myself would have 16 said, such as an expert who would have been called in that 17 particular case. 18 Q. You don't recall what the nature of your 19 testimony was in this particular post-conviction hearing? 20 A. Specifically, no. 21 Q. It's safe to say, since it's a post-conviction 22 hearing, Mr. Allen was convicted? 23 A. Prior to my involvement in the case he had been 24 convicted, correct. 25 Q. Was it your opinion that he had given a coerced 26 confession or do you recall? 27 A. I don't recall specifically, no. 28 Q. Do you know what the result was of the Peterson & Associates Court Reporting, Inc. 53 1 post-conviction hearing? Was the conviction overturned in 2 any way? 3 A. I don't think the conviction was overturned. 4 That's my recollection. 5 Q. No. 6, State of California versus Peter 6 Gonzales. You testified at a pretrial suppression 7 hearing; correct? 8 A. Correct. 9 Q. Was it your opinion that Mr. Gonzales had given 10 a coerced confession? 11 A. I don't recall his interrogation, so I don't 12 know whether today as we speak that was my opinion. 13 Q. Do you recall what you testified about in that 14 case? 15 A. No. 16 Q. Do you recall whether or not Mr. Gonzales was 17 convicted? 18 A. I don't recall even the attorney that I worked 19 with on that case. I suspect they didn't contact me after 20 the pretrial suppression. 21 Q. State of California versus **Tran Vu. You 22 testified at trial? 23 A. Yes. 24 Q. Do you recall that testimony? 25 A. Specifically, no. 26 Q. Do you recall whether or not you had an opinion 27 that Mr. Vu had given a coerced confession? 28 A. No, I don't. I don't recall the details of Peterson & Associates Court Reporting, Inc. 54 1 this interrogation or confession. 2 Q. Do you know whether or not or do you recall 3 whether or not Mr. Vu was convicted? 4 A. Again, I think in this case, the attorney did 5 call me and tell me he was convicted, but that's my best 6 recollection. 7 Q. No. 8, United States versus **Traun. 8 A. Correct. 9 Q. You testified at trial? 10 A. Correct. 11 Q. That was at an Air Force court marshall? 12 A. It was at an Air Force trial. If they're 13 called court marshalls, this was a court marshall. 14 Q. Do you recall that testimony? 15 A. Yes, I do. 16 Q. Was it your opinion that Mr. Traun had given a 17 coerced confession? 18 A. Ms. Traun. 19 MR. WAGGONER: Why don't we take a five-minute 20 break. 21 (Recess taken.) 22 BY MR. WAGGONER: 23 Q. I believe we're up to -- I don't remember the 24 conclusion on No. 8, so I guess I'll start there. 25 It says on No. 9 you testified at trial; 26 correct? 27 A. No. 8, correct. 28 Q. Was it your testimony that Ms. Truan's Peterson & Associates Court Reporting, Inc. 55 1 confession was coerced? 2 A. My recollection is my testimony was general 3 about coercive interrogation and false confessions, among 4 other topics. 5 Q. I meant to ask, was it your opinion that 6 Ms. Traun's confession was coerced? 7 A. Yes. 8 Q. Do you recall whether your testimony went 9 beyond just general testimony about interrogation tactics? 10 A. My recollection is it was only general 11 testimony about interrogation, coercion, false confession. 12 Q. You were not permitted to testify that this 13 particular confession was coerced or false? 14 A. That's my recollection, correct. 15 Q. Was that a bench trial or a jury trial? 16 A. It was a jury trial. 17 Q. Then do you know what the result was as to 18 whether or not Ms. Traun was convicted? 19 A. Yes, she was convicted. 20 Q. I assume in those cases where you're testifying 21 at trial, the confession has been admitted; is that 22 correct? 23 A. Correct. 24 Q. And despite the fact that it's been admitted 25 you're, nevertheless, being called to talk about it having 26 been or the tactics leading to coercion? 27 A. It depends what I'm called on. Every case is 28 different, so there may be a case where I'm, for example, Peterson & Associates Court Reporting, Inc. 56 1 called to testify about issues of reliability, nothing 2 having to do with coercion or it may be the defense argues 3 the issue of coercion for the jury. 4 In rare cases, it may also be the case that the 5 confession was excluded or suppressed, but the defense 6 wishes to introduce the confession and calls me. 7 Q. It's been probably 18 years since I tried a 8 criminal case. Either I'm not remembering something -- it 9 just seems really odd to me a judge would make a decision 10 that a confession can be admitted to the point where 11 you're now testifying in trial that the defense at that 12 point would be allowed to reargue to the jury whether or 13 not that confession was coerced. 14 A. My understanding of California law is that's 15 exactly what's permitted. At a pretrial suppression 16 hearing, the judge has to make a finding as a matter of 17 law whether or not the statement is coercive, the 18 statement is suppressed or not, but the defense is 19 entitled to reargue that case before a jury which 20 ultimately has to make a finding of fact about the 21 person's innocence or guilt. 22 And in making that finding, can choose whether 23 to discard the confession if they feel that it's 24 involuntary coerced and, if not, what weight to put on the 25 confession or confession evidence. 26 Q. Then your recollection is Ms. Traun was 27 convicted? 28 A. Correct. Peterson & Associates Court Reporting, Inc. 57 1 Q. No. 9, State of Washington versus Doris Green. 2 You testified at a post-conviction reference hearing; 3 correct? 4 A. Correct. 5 Q. What is a post-conviction reference hearing? 6 A. They call it a reference hearing. It's a 7 post-conviction hearing. My recollection is that 8 Doris Green was convicted and her case was appealed and 9 there was some procedural errors at the trial, according 10 to the appellate judges and so the appellate judges 11 reviewing the conviction ordered an appellate hearing to 12 gather evidence on a couple of issues, one of which was 13 whether or not the interrogation was coerced and likely 14 false. 15 So the post-conviction reference hearing was to 16 gather that information which was then my understanding 17 presented back to the appellate court which made a 18 decision about whether or not to sustain or overturn the 19 conviction. In the end, they did overturn the 20 conviction. She was released. 21 Q. Was it your opinion that Doris Green's 22 confession was coerced? 23 A. Yes. 24 Q. Were you actually permitted to testify that her 25 confession was coerced or did you just give general 26 testimony? 27 A. I don't recall specifically, but I may have 28 been permitted to do that since it was a post-conviction Peterson & Associates Court Reporting, Inc. 58 1 hearing where, typically, I'm given a lot more lag time. 2 Q. Was the overturning of the conviction based, in 3 whole or at least in part, upon a finding by the court 4 that Doris Green's confession was coerced? 5 A. I believe so. Coerced and/or false, yes. 6 Q. Do you know if that resulted in a published 7 court opinion? 8 A. I do not know whether it resulted in a 9 published court appellate opinion. It may have, but I 10 don't know. 11 Q. No. 10, United States Military versus Patrick 12 Willingham. You testified at a pretrial suppression 13 hearing? 14 A. Correct. 15 Q. Was it your opinion that Mr. Willingham had 16 given a coerced confession? 17 A. I don't recall the specifics of that. I don't 18 recall. I would have to go back and look at my notes. 19 Q. Do you recall whether or not Mr. Willingham was 20 convicted? 21 A. My vague recollection is the confession was 22 suppressed and he was not convicted. I would have to 23 confirm that. 24 Q. No. 11, Bernard Rhodes versus State of 25 Missouri. You testified at a post-conviction suppression 26 hearing? 27 A. Correct. 28 Q. Was it your opinion that -- I don't know who Peterson & Associates Court Reporting, Inc. 59 1 the defendant would be on that. It wouldn't be Rhodes, 2 would it? 3 A. That's who I understood to be the defendant. I 4 think I was taking the caption from either what the 5 defense attorney told me or what was on the motions that I 6 may have been provided. 7 Q. This may have been some type of writ hearing 8 where his name would be first. 9 So was it your opinion that Mr. Rhodes had 10 given a coerced confession? 11 A. I don't recall. I think -- I'd have to 12 confirm, but I think these were about Miranda issues, not 13 about coercion issues, and my testimony was about Miranda 14 issues. 15 Q. Do you know whether Mr. Rhodes' conviction was 16 in any way overturned? 17 A. I don't recall that it was or that I was told 18 that it was. 19 Q. No. 12, State of California versus De Weaver. 20 You testified at a pretrial suppression hearing? 21 A. Correct. 22 Q. Was it your opinion that Mr. De Weaver had 23 given a coerced confession? 24 A. I don't recall specifically if I formed an 25 opinion about whether or not his confession was coerced. 26 Q. Do you know whether or not Mr. De Weaver was 27 convicted? 28 A. That is my recollection. Yes, he was Peterson & Associates Court Reporting, Inc. 60 1 convicted. 2 Q. Do you know whether or not his confession was 3 suppressed? 4 A. I do not believe it was suppressed. 5 Q. No. 13, State of Connecticut versus Travis 6 Wright. 7 You testified at a pretrial suppression 8 hearing; correct? 9 A. Correct. 10 Q. Was it your opinion that Mr. Wright had given a 11 coerced confession? 12 A. I believe so. 13 Q. Do you know what the results were of the 14 pretrial suppression hearing? 15 A. I believe the confession was admitted and he 16 was later convicted. 17 Q. No. 14, State of California versus Kenneth 18 Cowling. You testified at trial? 19 A. Yes. 20 Q. Was it your opinion that Mr. Cowling had given 21 a coerced confession? 22 A. A false confession, yes, in response to coerced 23 police procedures. 24 Q. Your opinion was it was a coerced, false 25 confession? 26 A. Correct. 27 Q. Do you recall what you were permitted to 28 testify about? Peterson & Associates Court Reporting, Inc. 61 1 A. My recollection is it was general testimony 2 about interrogation, psychology, interrogation, 3 confession, false confessions, causes, fact, inditia of 4 false confessions. Not specific testimony. 5 Q. Just for shorthanding this, I'll ask you if you 6 can agree to this terminology and maybe we can short 7 circuit some of the length of this. 8 When I ask these questions and I ask, were you 9 allowed to testify just in general, what I'm asking is the 10 information you just conveyed as to what you mean by 11 general testimony. If you just say yes, we'll presume it 12 adopts the answer you just gave as to what general 13 testimony is. 14 A. Okay. 15 Q. And then if I ask were you specifically allowed 16 to testify whether a given confession was coerced or 17 false, that would be a separate question. 18 I understand your answer on this one was, when 19 you say not specific testimony, you were not allowed to 20 say that this particular confession was coerced or false; 21 is that correct? 22 A. That's my recollection, yes. 23 Q. Would you agree with me we can adopt that 24 terminology and proceed quicker? 25 A. I'll do my best. 26 Q. Did you have an opinion that Mr. Cowling had 27 given a coerced, false confession? 28 A. Yes. Peterson & Associates Court Reporting, Inc. 62 1 Q. Do you know what the result was of this trial? 2 Was he convicted? 3 A. No. He was acquitted. 4 Q. No. 15, United States Military versus Special 5 Airman John Ford. You testified at trial? 6 A. Correct. 7 Q. Did you have an opinion that Special Airman 8 John Ford had given a false, coerced confession? 9 A. My recollection is that there was no confession 10 in this case. The dispute was whether or not what he told 11 investigators constituted a confession. That was the 12 issue. 13 Q. Did you have an opinion that what he told the 14 investigators, just the statements that he made, whether 15 they are a confession or not, those statements were the 16 product of coercion? 17 A. They were the product of interrogation. I 18 don't recall if they were the product of coercion. 19 Q. Do you recall whether he was convicted? 20 A. He was aquitted. 21 Q. In that trial, do you recall whether you were 22 permitted to testify beyond the general matters? 23 A. No. 24 Q. I'm sorry. It was a bad question. No, you 25 don't recall, or, no, you weren't permitted to testify 26 beyond general matters? 27 A. I don't recall. 28 Q. No. 16, State of New York versus Michelle Peterson & Associates Court Reporting, Inc. 63 1 Davis. 2 You testified at a pretrial suppression 3 hearing? 4 A. Correct. 5 Q. Was it your opinion that Michelle Davis had 6 given a coerced, false confession? 7 A. Yes. It was my opinion she had given a coerced 8 confession. I don't know if I was asked to opine whether 9 it was true or false. I may have. I just don't recall. 10 Q. Do you know what the results of the suppression 11 hearing were? 12 A. I believe the statements were admitted. 13 Q. Do you know if Ms. Davis was convicted? 14 A. Yes. 15 Q. Was she convicted? 16 A. Yes -- she took a plea bargain. 17 Q. No. 17, State of California versus Trent Fouts. 18 You testified at trial? 19 A. Correct. 20 Q. Was it your opinion that Trent Fouts had given 21 a coerced confession? 22 A. I don't recall. 23 Q. Do you recall whether your testimony went 24 beyond general matters? 25 A. I don't recall that, either. 26 Q. Do you recall whether or not Mr. Fouts was 27 convicted? 28 A. Yes, he was convicted. Peterson & Associates Court Reporting, Inc. 64 1 Q. No. 18, State of Colorado versus Rhonda Pitts. 2 You testified at trial? 3 A. Correct. 4 Q. Do you recall whether your opinion was that 5 Rhonda Pitts had given a coerced confession? 6 A. I do not recall the facts of this case 7 specifically. 8 Q. On those that you don't recall, what is the 9 likelihood that you would be called in a case of this 10 nature, a criminal case, where you did not have an opinion 11 that the subject confession was coerced? 12 A. Do you mean a trial or a confession at a 13 suppression hearing? 14 Q. If it's different, then make the distinction. 15 A. It's unlikely that I would be called to testify 16 at a suppression hearing if I had reviewed documents in a 17 case and I had come to the conclusion that I did not think 18 it was a coercive interrogation. 19 It's possible, though, the attorney would just 20 want to elicit -- either would not have had me review the 21 documents and just wanted to elicit general testimony or 22 there may be some other issue that's a little off of 23 coercion that he or she wants me to talk about. 24 With regard to trial, the issue typically has 25 to do with reliability and there may be statements that 26 were induced that were not coercive, but nevertheless, the 27 defense is arguing or I may have come to the conclusion 28 privately, likely false, and so I may be called to testify Peterson & Associates Court Reporting, Inc. 65 1 in that kind of a case at trial. 2 I would believe that the majority of the cases 3 that I testified at trial, if I reviewed the materials, 4 I've come to the conclusion that it's likely a false 5 confession or, in my opinion, it is a false confession. 6 Q. Do you know if Ms. Pitts was convicted? 7 A. I do not recall. 8 Q. No. 19, State of Connecticut versus LaPointe. 9 You testified at a post-conviction, state 10 habeas hearing? 11 A. Correct. 12 Q. Was it your opinion that Mr. LaPointe's 13 confession was a coerced confession? 14 A. Yes. 15 Q. Do you recall, was your testimony beyond 16 general matters? 17 A. I think there was specific testimony in this 18 post-conviction state habeas hearing. 19 Q. Was it specific testimony that it was your 20 opinion that his confession was a coerced, false 21 confession? 22 A. Correct. 23 Q. What were the results of the post-conviction 24 habeas hearing? 25 A. I think the defense motion was denied. 26 Q. So Mr. LaPointe had been convicted and this 27 hearing did not alter that status; correct? 28 A. Correct. Peterson & Associates Court Reporting, Inc. 66 1 Q. No. 20, State of Kansas versus Hartis Cobb. 2 You testified at trial? 3 A. Correct. 4 Q. Was it your opinion Mr. Cobb had given a 5 coerced, false confession? 6 A. I believe my opinion was his confession was 7 likely false. I don't recall whether I had an opinion 8 whether it was coerced or not. 9 Q. Did your testimony go beyond general matters? 10 A. I don't think it did. 11 Q. Was Mr. Cobb convicted? 12 A. I may be wrong about that or whether it would 13 be general matters. 14 Yes, he was convicted. 15 Q. State of Colorado versus Robert Edwards. 16 You testified at trial? 17 A. Correct. 18 Q. Was it your opinion Mr. Edwards had given a 19 coerced, false confession? 20 A. I believe it was my opinion that he had given a 21 confession that was very likely false. I don't recall 22 whether I had an opinion about whether it was coerced. 23 Q. Do you know if your testimony went beyond 24 general matters? 25 A. I do not recall. 26 Q. Was Mr. Edwards convicted? 27 A. He was aquitted. 28 Q. No. 22, State of Texas versus William Peterson & Associates Court Reporting, Inc. 67 1 Ethridge-Hill. 2 You testified at a pretrial suppression 3 hearing? 4 A. Yes. 5 Q. Was it your opinion that Mr. Hill had given a 6 coerced, false confession? 7 A. A coerced confession, yes. I don't recall 8 whether I formed an opinion about whether it was false. 9 Q. Did your testimony go beyond general matters? 10 A. I don't recall. 11 Q. Do you know what the result was of that 12 suppression hearing? 13 A. The statements were admitted. 14 Q. Was Mr. Hill convicted? 15 A. That's my understanding. 16 Q. No. 23, State of California versus Donald 17 Perry. 18 You testified at trial? 19 A. Correct. 20 Q. Was it your opinion that Mr. Perry had given a 21 false, coerced confession? 22 A. I don't recall the facts of this case, 23 specifically the facts of this interrogation. 24 Q. Do you recall whether or not your testimony 25 went beyond general matters? 26 A. No. 27 Q. Was Mr. Perry convicted? 28 A. I believe he was. Peterson & Associates Court Reporting, Inc. 68 1 Q. No. 24, State of California versus Alan 2 Weatherspoon. 3 You testified at the pretrial suppression 4 hearing? 5 A. Correct. 6 Q. Did you have an opinion that Mr. Weatherspoon 7 had given a coerced, false confession? 8 A. I don't recall what my opinion was in that case 9 specifically. 10 Q. Do you know what the result was of the 11 suppression hearing? 12 A. I do not. 13 Q. Do you know whether or not Mr. Weatherspoon was 14 convicted? 15 A. I do not. 16 Q. State of California versus Michael Green. 17 You testified at trial? 18 A. Correct. 19 Q. Was it your opinion that Mr. Green had given a 20 coerced, false confession? 21 A. Yes. 22 Q. Did your testimony go beyond general matters? 23 A. I don't think so. 24 Q. Was Mr. Green convicted? 25 A. He was convicted on one count and acquitted on 26 the other. 27 Q. On the count that he was convicted of, was that 28 a count that included something that he had confessed to? Peterson & Associates Court Reporting, Inc. 69 1 A. Yes. 2 Q. 26, State of California versus Luna. 3 You testified at trial? 4 A. Correct. 5 Q. Was it your opinion that Mr. Luna had given a 6 coerced, false confession? 7 A. Yes. 8 Q. Was your testimony beyond general matters? 9 A. I don't believe so. 10 Q. Was he convicted? 11 A. Yes. 12 Q. No. 27, State of California versus Kevin 13 Boise. 14 You testified at trial? 15 A. Correct. 16 Q. Was it your opinion that Mr. Boise had given a 17 coerced, false confession? 18 A. I don't recall. 19 Q. Did your testimony go beyond general matters? 20 A. I don't recall. 21 Q. Was he convicted? 22 A. I don't recall. 23 Q. United States of America versus Nigeman. 24 You testified at trial? 25 A. Correct. 26 Q. Was it your opinion that Mr. Nigeman had given 27 a coerced, false confession? 28 A. He had given a false confession. I don't Peterson & Associates Court Reporting, Inc. 70 1 recall if it was my opinion if it was coerced. 2 Q. Did your testimony go beyond general matters? 3 A. I don't think so. 4 Q. Was he convicted? 5 A. I think it was a hung jury. 6 Q. Do you know whether he was ever retried? 7 A. No. I ran into a law clerk sometime after that 8 who I think told me that he had accepted a plea bargain to 9 a trivial lesser included and the case had gone away. I 10 don't know whether that's accurate. 11 Q. No. 29, State of California versus Jerry 12 Davis. 13 You testified at trial? 14 A. Correct. 15 Q. Was it your opinion that Mr. Davis had given a 16 coerced, false confession? 17 A. I think coercion is not an issue. I think my 18 opinion was that he very likely had given an unreliable 19 statement. 20 Q. Did your testimony go beyond general matters? 21 A. I do not believe so. 22 Q. Was Mr. Davis convicted? 23 A. I believe so. 24 Q. No. 30, State of Texas versus Richard Lee 25 Franks. 26 You testified at trial? 27 A. Correct. 28 Q. Was it your opinion that Mr. Franks had given a Peterson & Associates Court Reporting, Inc. 71 1 coerced, false confession? 2 A. I don't recall. 3 Q. Did your testimony go beyond general matters? 4 A. I don't believe so. 5 Q. Was Mr. Franks convicted? 6 A. Yes. 7 Q. Thomas Casper versus Combustion Engineering. 8 That was a civil case? 9 A. Correct. 10 Q. You testified at trial? 11 A. Correct. 12 Q. Did your testimony go beyond general matters? 13 A. I don't recall. 14 Q. Was it your opinion that Mr. Casper had given a 15 false, coerced confession? 16 A. Yes, he had. It was my opinion that he had 17 been coerced into making false admissions by private 18 security personnel who had detained him, interrogated him 19 at the behest of his employer, Combustion Engineering. 20 Q. Do you recall what the result was of that civil 21 trial? 22 A. No. 23 Q. State of California versus Rivera. 24 You testified at trial? 25 A. Correct. 26 Q. Was it your opinion that Mr. Rivera had given a 27 coerced, false confession? 28 A. I don't recall. Peterson & Associates Court Reporting, Inc. 72 1 Q. Did your testimony go beyond general matters? 2 A. I don't recall. 3 Q. Do you know whether or not he was convicted? 4 A. I don't recall. 5 Q. No. 33, Beverly Monroe versus State of 6 Virginia. 7 You testified at a post-conviction habeas 8 hearing? 9 A. Correct. 10 Q. That's when you provide more detail in your 11 list. It says you testified about police interrogation 12 training and practices, coercive persuasion and 13 volunteeringness and false confessions. That would be 14 what we termed general testimony? 15 A. Correct. 16 Q. Do you know if it went beyond that? 17 A. I don't recall. 18 Q. Was it your opinion that Beverly Monroe had 19 given a coerced, false confession? 20 A. Yes. 21 Q. I take it that Ms. Monroe had originally been 22 convicted; correct? 23 A. Yes. 24 Q. As a result of the habeas hearing, was her 25 convicted status changed in any way? 26 A. Yes. She was released. Her conviction was 27 overturned. 28 Q. Do you know if that result of her conviction Peterson & Associates Court Reporting, Inc. 73 1 being overturned in any way hinged upon a finding that her 2 conviction had been coerced or false? 3 A. No. 4 Q. Do you know if that resulted in a published 5 court appellate opinion? 6 A. No, I do not know. 7 Q. State of California versus Wyatt. 8 You testified at a pretrial suppression 9 hearing? 10 A. Correct. 11 Q. Was it your opinion that Mr. Wyatt had given a 12 coerced, false confession? 13 A. I don't recall. I don't think I was asked to 14 opine about the issue of a true or false confession. I 15 don't recall my specific opinion in the case. 16 Q. Did your testimony go beyond general matters? 17 A. I don't recall. 18 Q. Do you recall what the result was of the 19 suppression hearing? 20 A. His statements were admitted. 21 Q. Was Mr. Wyatt convicted? 22 A. Yes. 23 Q. State of California versus Marcos Ron Hill. 24 A. Correct. 25 Q. You testified in a pretrial suppression 26 hearing? 27 A. Correct. 28 Q. Was it your opinion that Mr. Ron Hill had Peterson & Associates Court Reporting, Inc. 74 1 given a coerced, false confession? 2 A. I don't believe I was asked to form an opinion 3 whether it was true or false. I don't recall my opinion 4 about whether it was coerced. 5 Q. Did your testimony go beyond general matters? 6 A. I don't recall. 7 Q. What was the result of the suppression hearing? 8 A. I believe the statements were admitted. 9 Q. Was Mr. Ron Hill convicted? 10 A. Yes. 11 Q. State of California versus Verduzco. 12 You testified at trial? 13 A. Correct. 14 Q. Was it your opinion that Mr. Verduzco had given 15 a coerced, false confession? 16 A. I don't know. 17 Q. Did your testimony go beyond general matters? 18 A. I don't believe so. 19 Q. Was Mr. Verduzco convicted? 20 A. I don't know. 21 Q. State of Washington versus Beasley. 22 You testified at a pretrial suppression 23 hearing? 24 A. Correct. 25 Q. Was it your opinion that Mr. Beasley had given 26 a coerced, false confession? 27 A. A coerced confession, yes. I don't recall 28 whether I formed an opinion about whether it was a false Peterson & Associates Court Reporting, Inc. 75 1 confession. 2 Q. Did your testimony go beyond general matters? 3 A. I don't believe so. 4 Q. What was the result of the suppression hearing? 5 A. I believe the statements were admitted. 6 Q. Was Mr. Beasley convicted? 7 A. I think he took a plea bargain at some point. 8 I may be wrong. It may have been a hung jury. I'm not 9 100 percent sure. I think it was a hung jury and then he 10 subsequently took a plea to a reduced, lesser included, 11 but I'm not 100 percent sure. 12 Q. Do you have records somewhere that you could 13 look at to refresh your recollection on these questions 14 I'm asking you about about these various cases? 15 A. I should have records, yes. I can't promise 16 that I've got records in every case, but I should have 17 records to refresh my recollection, if necessary. 18 Q. Do you normally somewhere in the file when you 19 work on a case, after you hear about the results, make a 20 note of what you heard? 21 A. Usually, yes, if I hear about the results or in 22 some cases, if I read about the results in a newspaper 23 clipping, yes. Some cases, I never find out. The 24 attorney doesn't call me or doesn't return my phone calls. 25 MR. WAGGONER: I'll ask now, Counsel, you don't 26 have to answer on the record, think about it and talk with 27 your other lawyers. I expect you might want to. 28 If after the deposition is over, when the Peterson & Associates Court Reporting, Inc. 76 1 witness is reading the transcript, if he could go back and 2 check his records and on these occasions where he has 3 answered he doesn't recall, indicate whether or not his 4 records give him the answer and, if so, what the answer 5 is. 6 MR. ARNELL: That may be very time consuming. 7 I don't know what the state of the records are. We'll 8 have to talk about it and we'll get back to you. 9 BY MR. WAGGONER: 10 Q. No. 38 has the same title as 37. Is that just 11 a repeat of the same thing? 12 A. Yes. The only difference is that I testified 13 at trial in 38 and pretrial in 37, so it's two separate 14 appearances at two stages. 15 Q. Your testimony at trial, was that on general 16 matters? 17 A. That's my recollection, yes. 18 Q. No. 39, State of California versus Wyatt. 19 You testified at trial? 20 A. Correct. 21 Q. Was it your opinion that Mr. Wyatt had given a 22 coerced, false confession? 23 A. This is the same as my answer to 34. It's the 24 same situation where in No. 34, I testified at the 25 pretrial suppression hearing, and No. 39, I testified at 26 the trial. 27 Q. Do you recall whether your testimony at trial 28 went beyond general matters? Peterson & Associates Court Reporting, Inc. 77 1 A. I do not recall. 2 Q. No. 40, State of California versus Bronfield. 3 You testified at trial? 4 A. Correct. 5 Q. Was it your opinion that Mr. Bronfield had 6 given a coerced, false confession? 7 A. Yes. 8 Q. Did your testimony go beyond general matters? 9 A. I do not believe so. 10 Q. Was Mr. Bronfield convicted? 11 A. I think it was a hung jury and I never found 12 out what occurred, whether the prosecution dismissed 13 charges or he was retried. I never found out. 14 Q. No. 41, State of California versus Escobido. 15 You testified at a pretrial suppression 16 hearing? 17 A. Correct. 18 Q. Was it your opinion Mr. Escobido had given a 19 coerced, false confession? 20 A. Coerced confession. 21 Q. Did your testimony go beyond general matters at 22 this suppression hearing? 23 A. My recollection is it did not. 24 Q. Do you know what the result was of the 25 suppression hearing? 26 A. I believe the statements were admitted. 27 Q. Was Mr. Escobido convicted? 28 A. I'm sorry. You're asking me about Escobido? Peterson & Associates Court Reporting, Inc. 78 1 Q. I'm still on No. 41. 2 A. I apologize. I'm answering the wrong 3 question. 4 I have no recollection of Escobido at all, what 5 my opinion was and what happened in the case. I 6 inadvertently was looking at 42, which I do have a 7 recollection of. 8 Q. On No. 42, State of California versus Spawn. 9 Your opinion was that it was a coerced 10 confession? 11 A. Correct. 12 Q. Your testimony did not go beyond general 13 matters? 14 A. Correct. 15 Q. The statement was admitted? 16 A. Correct. It's since been overturned. 17 Q. After the statement was admitted, was Mr. Spawn 18 convicted? 19 A. Yes. 20 Q. Then you say that's since been overturned? 21 A. Correct. 22 Q. Did it result in a published opinion? 23 A. I do not know whether the opinion was 24 published. I believe it was. 25 Q. Do you know what the ground was of the 26 overturning? 27 A. No, I don't recall specifically. 28 Q. Did the court make a finding that the Peterson & Associates Court Reporting, Inc. 79 1 confession of Mr. Spawn was improperly admitted? 2 A. I'm not sure. I don't recall. 3 Q. Do you recall whether or not the appellate 4 court made a finding as to whether or not Mr. Spawn's 5 confession was coerced? 6 A. I don't recall. 7 Q. 43, State of California versus Gonzales. 8 You testified at a pretrial suppression 9 hearing? 10 A. Correct. 11 Q. Was that a male or female? 12 A. Male. 13 Q. Was it your opinion that Mr. Gonzales had given 14 a coerced, false confession? 15 A. I believe a coerced confession. 16 Q. Did your testimony go beyond general matters? 17 A. I do not believe so. 18 Q. What was the result of the suppression hearing? 19 A. The statements were admitted. 20 Q. Was Mr. Gonzales convicted? 21 A. Yes, he was. 22 Q. No. 44, that's the same case as No. 42; 23 correct? 24 A. Correct. 25 Q. This is testimony at trial? 26 A. Correct. 27 Q. Did your testimony at trial go beyond general 28 matters? Peterson & Associates Court Reporting, Inc. 80 1 A. No. 2 Q. No. 45, State of California versus John Ruiz. 3 You testified at a suppression hearing? 4 A. Correct. 5 Q. Was it your opinion that Mr. Ruiz had given a 6 coerced, false confession? 7 A. Coerced confession. The issue of whether it 8 was a false confession was not raised. 9 Q. Did your testimony go beyond general matters? 10 A. I believe it did. 11 Q. Were you permitted to actually testify, in your 12 opinion, he had given a coerced confession? 13 A. I believe I was, yes. 14 Q. What was the result of the suppression hearing? 15 A. The statement was suppressed. 16 Q. Was Mr. Ruiz convicted? 17 A. Yes, I believe he was. 18 Q. Was he convicted of the crime that he had 19 confessed to? 20 A. Yes, or some version of it. 21 Q. State of California versus -- 22 A. That's No. 46 and that's the same as No. 43, 23 same case only testifying at a different stage in the 24 process. 25 Q. Was your testimony at trial beyond general 26 matters? 27 A. No. It was just general testimony. 28 Q. 47, State of South Carolina versus Dillard. Peterson & Associates Court Reporting, Inc. 81 1 You testified in a deposition? 2 A. It was by videotape deposition because of 3 scheduling problems. I was in a room like this. The only 4 difference is there were TVs and I conferenced in so the 5 prosecutor and defense attorney were in a room in the 6 court reporter's office and they were taking live 7 testimony transcribed and that live testimony was then 8 played to the jury. 9 Q. So, although being accomplished by videotape, 10 you were testifying at trial? 11 A. Correct. 12 Q. Was it your opinion that Ms. Dillard had given 13 a coerced, false confession? 14 A. I don't recall. I believe this was just 15 general testimony. 16 Q. Do you know whether Ms. Dillard was convicted? 17 A. I believe she was. 18 Q. No. 48, United States versus Taylor. 19 You testified at trial? 20 A. Correct. 21 MR. LOEDING: Can the record reflect 22 Mr. Christopher Taylor left the deposition. 23 (Discussion off the record.) 24 BY MR. WAGGONER: 25 Q. No. 48, did you reach an opinion that 26 Mr. Taylor gave a coerced, false confession? 27 A. Yes. 28 Q. Was your testimony beyond general matters? Peterson & Associates Court Reporting, Inc. 82 1 A. I don't recall. 2 Q. Was Mr. Taylor convicted? 3 A. He was aquitted. 4 Q. No. 49, State of California versus Kagle? 5 You testified at trial? 6 A. Correct. 7 Q. Was it your opinion Mr. Kagle had given a 8 coerced, false confession? 9 A. It may have been confessions or admission. I'm 10 not. 11 Q. Did your testimony go beyond general matters? 12 A. No. 13 Q. Was Mr. Kagle convicted? 14 A. Yes. 15 Q. No. 50, State of California versus Reynolds. 16 You testified at trial? 17 A. Correct. 18 Q. Was it your opinion that Mr. or Ms. Reynolds 19 had given a coerced, false confession? 20 A. It was Mr. Reynolds, and I don't recall my 21 opinion. He was aquitted. 22 Q. Did your testimony go beyond general matters? 23 A. No, it did not. 24 Q. State of California versus Hernandez. 25 You testified at trial? 26 A. Correct. 27 Q. Was it your opinion that Mr. Hernandez had 28 given a coerced, false confession? Peterson & Associates Court Reporting, Inc. 83 1 A. I don't recall. 2 Q. Did your testimony go beyond general matters? 3 A. I don't believe so. 4 Q. Was Mr. Hernandez convicted? 5 A. I don't recall. 6 Q. No. 52, State of Pennsylvania versus 7 Cornelius. 8 You testified at trial? 9 A. Correct. 10 Q. Was it your opinion that Mr. Cornelius had 11 given a coerced, false confession? 12 A. I think it was my opinion he had given a 13 coerced confession. I didn't have an opinion about 14 whether it was false. 15 Q. Did your testimony go beyond general matters? 16 A. No. 17 Q. Was Mr. Cornelius convicted? 18 A. Yes. 19 Q. No. 53, State of California versus Sergio 20 Torres. 21 You testified at trial? 22 A. Correct. 23 Q. Was it your opinion that Mr. Torres gave a 24 coerced, false confession? 25 A. I don't recall this case. I don't recall what 26 my opinion was or what the outcome was or whether I 27 testified beyond general or specific matters. 28 Q. State of California versus Rivera. Peterson & Associates Court Reporting, Inc. 84 1 You testified at trial? 2 A. Correct. Again, I don't recall anything about 3 this particular case, whether I formed an opinion about 4 any of the questions you asked me about or what I 5 specifically testified to. 6 Q. Or the result? 7 A. Or the result. I don't think I was ever 8 informed. 9 Q. No. 55, State of California versus Franklin 10 Sole. 11 A. Correct. 12 Q. You testified at a suppression hearing? 13 A. Correct. 14 Q. Was it your opinion that Mr. Sole gave a 15 coerced, false confession? 16 A. Yes. 17 Q. Did your testimony go beyond general matters? 18 A. I believe it did at the suppression hearing. 19 Q. Were you specifically allowed to testify that, 20 in your opinion, Mr. Sole had given a coerced, false 21 confession? 22 A. I believe I was permitted to discuss the basis 23 for my opinion that it was a coerced confession at the 24 suppression hearing. 25 Q. What was the result of the suppression hearing? 26 A. The statements were admitted. 27 Q. Was Mr. Sole convicted? 28 A. Yes. Peterson & Associates Court Reporting, Inc. 85 1 Q. No. 56 is the same case; correct? 2 A. Correct. 3 Q. You testified at trial? 4 A. Correct. 5 Q. Did your testimony there go beyond general 6 matters? 7 A. No. It was just general testimony. 8 Q. State of Washington versus Norma Holstrom, 9 No. 57. 10 You testified at a bench trial? 11 A. Correct. 12 Q. Was it your opinion that Ms. Holstrom had given 13 a coerced, false confession? 14 A. Yes. 15 Q. Did your testimony go beyond general matters? 16 A. I don't recall. 17 Q. Was Ms. Holstrom convicted? 18 A. No. She was aquitted. 19 Q. State of California versus Ernest Boone. 20 You testified at trial? 21 A. Correct. 22 Q. Was it your opinion that Mr. Boone had given a 23 coerced, false confession? 24 A. I don't recall. 25 Q. Did your testimony go beyond general matters? 26 A. No. 27 Q. Was Mr. Boone convicted? 28 A. I don't recall. Peterson & Associates Court Reporting, Inc. 86 1 Q. State of California versus Manuel Martinez, 2 No. 59. 3 You testified at trial? 4 A. Yes. 5 Q. Was it your opinion that Mr. Martinez had given 6 a coerced, false confession? 7 A. I don't recall anything about this case. 8 Q. You don't recall whether your testimony was 9 beyond general? 10 A. Correct. 11 Q. Nor do you recall the result? 12 A. Correct. Just to clarify, on these cases where 13 I don't recall anything, it would be highly unlikely the 14 testimony was anything other than general. Otherwise, I 15 would be more likely to recall it. 16 Q. No. 60, State of California versus Joseph 17 Pagadon. 18 You testified at trial? 19 A. Correct. 20 Q. Was it your opinion that Mr. Pagadon had given 21 a coerced, false confession? 22 A. I don't recall. 23 Q. Do you recall whether your testimony went 24 beyond general matters? 25 A. I don't recall. I think it may be an error. 26 It's possible I may have testified at a suppression 27 hearing. I'm not sure if it was a trial or a suppression 28 hearing. Peterson & Associates Court Reporting, Inc. 87 1 Q. Do you recall the result? 2 A. No. 3 Q. State of California versus Ford, No. 61. 4 You testified at trial? 5 A. Correct. 6 Q. Was it your opinion Mr. Ford had given a 7 coerced, false confession? 8 A. I don't recall. 9 Q. Did your testimony go beyond general matters? 10 A. No. 11 Q. What was the result? 12 A. I believe he was convicted. I'd have to 13 double-check, but that's my belief. 14 Q. No. 62, State of California versus Hensley. 15 You testified at trial? 16 A. Correct. 17 Q. Was it your opinion Mr. Hensley had given a 18 coerced, false confession? 19 A. No. I think it was my opinion that -- I don't 20 recall whether he had given -- whether it was my opinion 21 he had given a coerced confession, and it was my opinion 22 that he was possibly giving a false confession. 23 I don't think I had a conclusive opinion about 24 whether it was a true or false confession, although I 25 think some aspects of it were false and he was convicted. 26 It was only general testimony. 27 Q. You lost me on that part of coercion. Your 28 opinion was you thought it was coerced? Peterson & Associates Court Reporting, Inc. 88 1 A. I don't recall. I'd have to go back and look 2 at my notes or the file. I don't recall whether I had an 3 opinion about whether it was coerced. 4 Q. You said he was convicted? 5 A. Correct. 6 Q. No. 63, State versus Mirandez. 7 You testified at trial? 8 A. Correct. 9 Q. Did you have an opinion that Mr. Mirandez had 10 given a coerced, false confession? 11 A. I believe I did. I'd have to go back and 12 look. I don't remember completely. I think that there 13 was reason to believe it may have been false, but I didn't 14 know whether it was false. 15 I don't recall whether I formed an opinion 16 about whether it was coerced or not. I think that there 17 was reason to believe it could have been coerced. 18 Q. Did your testimony go beyond general matters? 19 A. No. 20 Q. Was Mr. Mirandez convicted? 21 A. Yes. 22 Q. No. 64, United States versus Holstrom. 23 A. Correct. 24 Q. You testified at a suppression hearing? 25 A. Correct. 26 Q. I want to call your attention -- it's the same 27 defendant as in No. 57. 28 A. No. 57, she was tried by the State and she was Peterson & Associates Court Reporting, Inc. 89 1 aquitted by a judge at the bench trial before the case was 2 over -- defense presentation was over. 3 She was then retried by the federal government 4 in June of 2002. I testified at the suppression hearing, 5 I believe specifically, and the confession was suppressed 6 and charges were dismissed. 7 Q. Your opinion was that her confession was 8 coerced and false? 9 A. Correct. 10 Q. No. 65, Oregon versus Gannon. 11 You testified at trial? 12 A. Correct. 13 Q. Was it your opinion that Mr. Gannon had given a 14 false confession? 15 A. It was my opinion his description of the 16 interrogation was coercive, unrecorded, and the 17 interrogator's description was incomplete and inplausible 18 and that it may have been a false confession, but I was 19 limited at trial to testifying only about coercion and I 20 was permitted to offer specific opinions at trial about 21 coercion, and he was convicted. 22 Q. No. 66, Yonkay versus Emerald Bay Homeowner's 23 Association. 24 Is this a civil trial? 25 A. Yes. This was a civil trial and it had to do 26 with not police interrogation, but with proper arrest 27 procedures at the jail and in use of force by public 28 police. Peterson & Associates Court Reporting, Inc. 90 1 Q. Did it have to do with a confession? 2 A. No. There was no interrogation or confession 3 in this case. 4 Q. No. 67, State of California versus Johanne 5 Schmidt. 6 You testified at a pretrial hearing? 7 A. Yes. 8 Q. Was it your opinion that Mr. Schmidt had given 9 a coerced, false confession? 10 A. I was not asked to form an opinion about 11 whether it was a false confession, and I believe it was my 12 opinion that it was a coerced confession. 13 Q. Did your testimony go beyond general matters? 14 A. I don't think so, although I'm not 100 percent 15 sure. 16 Q. What was the result of the suppression hearing? 17 A. The statements were admitted. It's very 18 possible that I was allowed to give specific testimony, 19 but I'm not 100 percent sure. 20 Q. Was Mr. Schmidt convicted? 21 A. Yes. 22 Q. No. 68, State of California versus Sachhow. 23 You testified at a pretrial suppression 24 hearing? 25 A. Correct. 26 Q. Was it your opinion that Mr. Sachhow had given 27 a coerced, false confession? 28 A. I think the issue was whether it was a coerced Peterson & Associates Court Reporting, Inc. 91 1 confession. At least that's my recollection. I believe 2 my opinion was it was a coerced confession. 3 Q. Did your testimony go beyond general matters? 4 A. I don't know. I don't recall specifically. 5 Q. What was the result of the suppression hearing? 6 A. I forgot. 7 Q. Do you know whether or not Mr. Sachhow was 8 convicted? 9 A. I'm not sure. 10 Q. No. 69, Colorado versus Bane. 11 You testified at trial? 12 A. Correct. 13 Q. Was it your opinion that Mr. Bane had given a 14 coerced, false confession? 15 A. Yes. I don't recall specifically whether I 16 formed an opinion on coercion, but there was a false 17 confession. 18 Q. Did your testimony go beyond general matters? 19 A. I don't think so. 20 Q. Was Mr. Bane convicted? 21 A. No. He was aquitted. 22 Q. State of California versus Marcus W., No. 70. 23 You testified at trial? 24 A. Correct. 25 Q. Was it your opinion that Marcus W. had given a 26 coerced, false confession? 27 A. Yes. The testimony may have had to do with 28 unreliable issues as well as the testimony there. Peterson & Associates Court Reporting, Inc. 92 1 Q. Did your testimony go beyond general matters? 2 A. Yes, it did because it was a juvenile trial. I 3 think I was asked by the judge to give specific opinions. 4 Q. Was Marcus W. convicted? 5 A. No. He was aquitted. 6 Q. State of California versus Salazar. 7 A. Correct. 8 Q. You testified at a suppression motion? 9 A. Correct. 10 Q. Was it your opinion Mr. Salazar had given a 11 coerced confession? 12 A. He had given coerced statements that were 13 misinterpreted by the prosecution and police as 14 confessions of guilt, even though they were not. 15 Q. Did your testimony go beyond general matters? 16 A. I don't recall. I think it did. 17 Q. Was Mr. Salazar convicted? 18 A. No. He was actually aquitted, but since this 19 was a suppression motion, statements were admitted. I did 20 end up testifying at his trial, No. 73, not to move you 21 ahead. 22 Q. So at the suppression motion, you probably gave 23 specific testimony? 24 A. Correct. 25 Q. And the result of this suppression motion was 26 that the statements were admitted? 27 A. Correct. 28 Q. Skipping ahead to No. 73, which is the same Peterson & Associates Court Reporting, Inc. 93 1 case, at trial, you testified and at that time did you go 2 beyond general matters? 3 A. No. I think it was just general testimony. 4 Q. Then he was aquitted? 5 A. Correct. 6 Q. Back to No. 72. State of California versus 7 Mora. 8 You testified at a suppression motion? 9 A. Correct. 10 Q. Was it your opinion that Mr. Mora had given a 11 coerced, false confession? 12 A. I don't know that I formed an opinion about 13 whether it was false, but he may have given a coerced 14 confession. 15 Q. Did your testimony go beyond general matters? 16 A. No. 17 Q. What was the result of the suppression motion? 18 A. The statements were admitted. 19 Q. Was Mr. Mora convicted? 20 A. My understanding is his case has not yet gone 21 to trial. 22 Q. 74, State of California versus Kinkade. 23 You testified at trial? 24 A. Correct. 25 Q. Was it your opinion that Mr. Kinkade had given 26 a coerced, false confession? 27 A. I don't recall what my specific opinion was. 28 He described an account of the interrogation unrecorded, Peterson & Associates Court Reporting, Inc. 94 1 and if his description was accurate, it could have been a 2 coerced, false confession. 3 Q. Did your testimony go beyond general matters? 4 A. No. 5 Q. Was he convicted? 6 A. I believe so. I should say I think it may have 7 been his description was accurate. It could have been a 8 false confession. It may have been the elements of his 9 narrative may have been inaccurate. 10 Q. That would be the end of your list of court 11 testimony as of when you wrote this document, November 12 2002; correct? 13 A. Correct. 14 Q. Have you testified in any trials or suppression 15 hearings, any court testimony since then? 16 A. Yes. I've testified one time in Alabama. The 17 defendant's name was Medell Banks. This was last month. 18 I testified at a pretrial suppression hearing. 19 Q. Was it your opinion that Mr. Banks had given a 20 coerced, false confession? 21 A. Yes. 22 Q. Did you testify beyond general matters? 23 A. I believe so, yes. 24 Q. Did you testify specifically that it was both 25 coerced and false or just coerced? 26 A. I don't recall. I did believe it was a false 27 confession so if asked, I would have said that and why. I 28 know I at least testified it was a coerced confession and Peterson & Associates Court Reporting, Inc. 95 1 gave my explanation. I don't specifically recall. 2 Q. What was the result of the suppression hearing? 3 A. The statements were admitted. The prosecution 4 ended up dismissing charges and taking a plea to a trivial 5 misdemeanor and Banks was released on time served. 6 Q. From the time of the creation of this document 7 until now, other than your testimony in the Banks matter, 8 have you testified in any other court proceedings? 9 A. I don't think so. I think that was the only 10 one that post-dates this document. 11 Q. In your deposition list, you have, I believe, 12 one criminal matter and the rest are all civil matters to 13 me. 14 A. I believe that's correct. 15 Q. State of Missouri versus Irwin. 16 You testified in a deposition in a criminal 17 case? 18 A. Correct. The State of Missouri, like a few 19 other states, Montana and Florida, allow for depositions 20 in criminal matters, unlike the State of California. 21 Q. Was it your opinion that Mr. Irwin had given a 22 coerced, false confession? 23 A. I believe so, yes. 24 Q. Did your testimony at that deposition go beyond 25 general matters? 26 A. I think so, yes. 27 Q. Has there been a resolution of that criminal 28 case? Peterson & Associates Court Reporting, Inc. 96 1 A. I have to double-check. I think he was 2 aquitted. 3 Q. Do you know if his confession was admitted? 4 A. Yes, I believe it was admitted. I would have 5 to double-check that, but that's my belief. 6 MR. WAGGONER: Is that the right time or what? 7 I got to the end of Page 9 and it's noon. 8 (Lunch recess.) 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Peterson & Associates Court Reporting, Inc. 97 1 EXAMINATION (Resumed) 2 BY MR. WAGGONER: 3 Q. Do you, by any chance, have with you a copy of 4 the notice of deposition? 5 A. No. I was never provided one. 6 Q. The notice of deposition requested that you 7 bring with you everything you reviewed and everything you 8 produced in this case. I take it you have given us 9 everything you produced in the case by way of the November 10 and the December reports. 11 Did you bring the materials that you reviewed 12 in this case? 13 A. No. 14 Q. One of the things you reviewed was the 15 testimony of Richard Ofshee in this case; is that correct? 16 A. Correct. 17 Q. At one point in his transcript, he testified 18 that the use of evidence ploys is not a coercive tactic. 19 Do you recall that testimony? 20 A. Not specifically. It's possible he did testify 21 to that in the transcript that I read. 22 I think, just to clarify, Professor Ofshee 23 testified twice, two days in succession, and I was only 24 provided initially with the first day of testimony. 25 I think I've received the second day, but I 26 haven't read it, so he may have testified at the second 27 day, if this is accurate, or it may just be that it was 28 not something that stood out in my mind in the first day's Peterson & Associates Court Reporting, Inc. 98 1 testimony. 2 Q. Would you agree that that is a true statement, 3 that evidence ploys are not a coercive tactic? 4 MR. ARNELL: It's an incomplete hypothetical, 5 overbroad. 6 THE WITNESS: I would agree that evidence ploys 7 are not inherently coercive. They can be coercive and 8 it's important to understand the context and message. 9 Yes, I would agree, in and of themselves, they 10 are not inherently coercive. 11 BY MR. WAGGONER: 12 Q. On Page 5 of your November report, the second 13 paragraph, you state that, "McDonough, Claytor and Wrisley 14 also lied to Michael when they told him his blood was in 15 Stephanie's room; when they told him that she had his hair 16 in her hand; when they told him the door to her bedroom 17 was open; when they told him the doors and windows in the 18 house were locked; when they told him Stephanie's blood 19 was all over his clothes; and when they claimed that 20 science was on their side; 50 experts were going to bury 21 him with an avalanche of evidence." 22 Have I read that accurately? 23 A. Yes. 24 Q. What is the basis of your opinion that it was a 25 lie to Michael when he was told that his blood was in 26 Stephanie's room? 27 A. I don't recall where I read that or whether I 28 was told that by Mr. Silverman. I don't recall where I Peterson & Associates Court Reporting, Inc. 99 1 learned that fact. 2 Q. Do you recall where in the transcript, such as 3 what page, what line it is where Michael is supposedly 4 told that his blood is in Stephanie's room? 5 A. No. 6 Q. Do you recall which officer told him that? 7 A. No. 8 Q. Did you make notes on your copies of the 9 transcripts or do you have notes somewhere that would 10 allow you to take various statements like this out of your 11 report and tie them to a particular page and line on the 12 transcript? 13 A. I don't think so, no. I may have notations on 14 the transcripts and underlinings, but I don't think I have 15 separate notes on that transcript. 16 Q. So you don't think you have an addition to your 17 report that would in some way have footnotes or in some 18 other way references included in the report that would 19 tell you where a given factual statement that you're 20 making can be found in the materials that you've reviewed? 21 A. Correct. 22 Q. Do you recall where it was that you believe 23 they told him that she had his hair in her hand? 24 A. Specifically, no. Off the top of my head, I 25 couldn't tell you what page and line number. 26 Q. Do you recall what officer said it? 27 A. No. 28 Q. Would the answers to those questions be the Peterson & Associates Court Reporting, Inc. 100 1 same for each of these factual assertions I read in this 2 paragraph? 3 A. Yeah, it would because, absent a transcript, I 4 don't have a photographic memory of page and line. 5 Q. What do you base your opinion on that it was a 6 lie when Michael was informed that the door to Stephanie's 7 bedroom was open? 8 A. I don't know, when I wrote this report, what 9 that was based on. I know that it's been discussed 10 subsequently in the materials that I've reviewed. It may 11 have been Dr. Thornton's report. I'm not sure. 12 I don't recall specifically when I wrote this 13 what I was basing that on. It may have been something 14 that was communicated to me by Mr. Silverman. 15 Q. Do you recall what it is that you were basing 16 your opinion on that it was a lie when he was told that 17 the doors and windows in the house were locked? 18 A. I think I was basing that on the trial brief 19 that I had been provided by Mr. Silverman. 20 Q. Did that trial brief include a discussion of 21 the statements by Michael Crowe's grandmother, 22 Mrs. Kennedy? 23 A. Not to my recollection. I think they were 24 Officer Walters' statements, and there may have been 25 statements as well of another officer who had been 26 deposed. 27 Q. Have you been provided materials that would 28 include both the officers and Michael Crowe's father, Peterson & Associates Court Reporting, Inc. 101 1 Mr. Crowe's testimony, that Mrs. Kennedy said that she 2 checked the doors to the house before she went to bed and 3 they were locked? 4 MR. ARNELL: Objection; misstates the 5 testimony, misstates the evidence. 6 THE WITNESS: Unless it's referenced in the 7 trial brief, no. 8 BY MR. WAGGONER: 9 Q. Was it referenced in the trial brief that 10 Mrs. Kennedy on her death bed deposition testified that it 11 was her custom and habit to check the doors and windows 12 every night before she went to bed and make sure they were 13 locked? 14 A. That's not my recollection, but it may be there 15 buried in a footnote. It's not my recollection. 16 Q. Did the factual material that you reviewed 17 include any reference to statements by Stephen Crowe that 18 both of the doors that he exited at various times on the 19 morning that the body was found were locked before he 20 exited -- locked from the inside? 21 A. Not to my recollection. 22 Q. Do you have any specific recall of when it is 23 that you believe the officers told Michael that 24 Stephanie's blood was all over his clothes? 25 A. No. 26 Q. We talked earlier about the component of your 27 opinion that Michael Crowe's confession was a false 28 confession in addition to being a coerced confession. Now Peterson & Associates Court Reporting, Inc. 102 1 I want to focus a little bit on the component of coercion. 2 Would you agree that it's true that a person 3 can make inculpatory statements even in an environment 4 where coercive tactics are being used, but that the 5 motivation for making those statements can be wholly 6 independent and unrelated to the use of the coercive 7 tactics? 8 A. That's certainly possible. 9 Q. For instance, the person could simply steal 10 themselves to the affects of the coercive tactics, but 11 then wind up making inculpatory statements motivated by 12 extreme mental anguish caused by the feelings of guilt 13 because he's guilty; correct? 14 A. That's possible. I was thinking of a situation 15 perhaps where somebody makes coercive threats, but the 16 person is hard of hearing and they don't hear them. What 17 you say is certainly possible, perhaps not likely, but 18 possible. 19 Q. The question, then, when you are assessing a 20 case like this, how do you determine whether the 21 statements being made by the individual are being 22 motivated by the coercive tactics or some other mechanism? 23 A. Sometimes in the record, there will be a 24 description of what's motivating the statements. The 25 person might say repeatedly that they're scared or if 26 they're being threatened with no punishment, if they 27 comply, versus harsh punishment if they don't. Then they 28 say that that's what's motivating their decision. Peterson & Associates Court Reporting, Inc. 103 1 They may make reference to their fears or 2 what's motivating their decision throughout the transcript 3 and, otherwise, one would have to evaluate the totality of 4 the circumstances and make the best interpretation based 5 on what's in the record. 6 Q. What, in your training and background, enables 7 you to perform that analysis any better than a person off 8 the street? 9 A. Presumably -- 10 Q. The first analysis is you look at what the 11 person said. Anybody could look at what the person said 12 and see if they actually said I'm scared of going to jail 13 and that's why I'm confessing or something of that nature. 14 A. It may not be that explicit. The answer to 15 your question is that I've extensively researched and 16 studied this area for over a decade. I've studied over 17 1,000 interrogations in that time period. I've worked on 18 a number of cases. I've written lots of articles. I'm 19 regarded as an expert in the area. 20 To the extent that that experience is relevant 21 in making these judgments and understanding the structure 22 and process of interrogations and what motivates 23 confessions, that would be the answer. 24 Q. In what way, if any, has it ever been 25 determined whether, when you make these judgments, you are 26 typically accurate or inaccurate? 27 A. The judgment you're asking about is whether or 28 not a particular coercive technique led to a statement Peterson & Associates Court Reporting, Inc. 104 1 motivating the inculpatory statement? 2 Q. Right. 3 A. Well, in the academic world, there are layers 4 of quality control. Typically when one is going through 5 graduate school, one has to pass exams and be supervised 6 by professors and ultimately the research has to be 7 approved and signed off on. 8 At the professorial level, the research that I 9 do typically goes through peer review so there will be 10 outside reviews, and if errors are there, that will be one 11 check on the possibility of errors. 12 Anytime I publish an article, it is a published 13 document and others can comment on it or challenge it, and 14 anytime I work on a case or testify in a case that, too, 15 is a public hearing and a public setting and typically 16 involves adversaries, but other than that, I wouldn't 17 know. I don't know what else to add to the answer. 18 Q. Even given that, would you not concede that 19 there is no empirical review that can establish whether or 20 not you're correct in your judgment when you say a given 21 confession was motivated by these coercive tactics or it 22 wasn't? 23 There's no empirical method whereby someone is 24 reviewing those judgments and determining whether, in 25 fact, this suspect did make this confession for the reason 26 you say that he did and they can prove that with some 27 statistical analysis. 28 A. Well, if there's a transcript of the Peterson & Associates Court Reporting, Inc. 105 1 interrogation, then there are statements in the transcript 2 about what's motivating the confession. I think a third 3 party could evaluate the accuracy of my or anybody else's 4 interpretations. 5 That's not the only way. I wrote this report 6 and then afterwards, just in the last couple weeks, I read 7 Dr. Calaruso's report, the psychiatrist, and he interviews 8 Michael and Michael says exactly why he confessed there in 9 an interview that corroborates what he says on tape and in 10 my analysis. 11 More generally, outside of this case, to the 12 extent that the documents or materials exist, they can 13 always be obtained, they can verify interpretations. 14 It may be possible in some instances that the 15 interpretations are based on ambiguous evidence or that 16 the people making the interpretations can't be as 17 authoritative or conclusive depending on underlying 18 materials, but I don't agree with the proposition of your 19 question. 20 Q. How can, by someone reading your materials -- 21 what process would they have to engage in in your mind to 22 go back and determine whether you are accurate when you 23 assign a given motive to a person's statements? 24 A. To review the record that exists, the 25 documentary record in the first instance. 26 Secondly, to -- the documentary record not only 27 with regard to a transcript and a taped interrogation, if 28 it exists, but also anything where the individual is Peterson & Associates Court Reporting, Inc. 106 1 interviewed, whether by the police or a psychiatrist or 2 the media or whomever and, if possible, at least in an 3 academic context, interview the individual and others 4 familiar with the case to try to obtain information about 5 what motivated the confession. 6 Q. Have you ever known anyone to review your work 7 in that fashion where they actually went back and talked 8 to the person whose confession you were dealing with and 9 asked them what motivated them to make the statements they 10 made and check that against the results of your 11 determination? 12 A. No, not that I can recall where somebody would 13 interview an individual in the case who I made a 14 determination about what motivated their confession. 15 Q. What statements, if any, do you recall 16 Michael Crowe making which indicate to you that he is 17 revealing the motivation for him making the statements 18 that he's making on January 22nd and January 23rd, 1998 19 when he's being interrogated by Escondido police? 20 A. I recall in the letter he only says he killed 21 her because they're telling him he killed her. 22 I believe there are times in the interrogation 23 where he says he's afraid of going to jail. It may be 24 subsequent to the interrogation that he also mentioned his 25 fear of going to jail and that he wanted to take the good 26 path and avoid the bad path and that's what motivated his 27 confession. 28 Q. You haven't reviewed his deposition? Peterson & Associates Court Reporting, Inc. 107 1 A. My understanding was they're not available. 2 Q. But you haven't reviewed them? 3 A. I have not reviewed them. 4 Q. A statement by him, either in the letter that 5 he wrote to Stephanie or otherwise, "The only reason I'm 6 confessing is because they tell me I did this crime," 7 that's not a reference to a coercive statement by the 8 officer, is it? 9 A. You mean in the letter? I think I understand 10 your question. Yes. 11 Q. Certainly an officer is entitled to look at the 12 person he's interrogating on a murder case and whom he 13 believes is the murderer and say to that person, I believe 14 you're the murderer. That's not coercive, is it? 15 MR. ARNELL: Incomplete hypothetical. 16 THE WITNESS: Correct. 17 BY MR. WAGGONER: 18 Q. The other statements you referenced were 19 statements where Michael might have said something 20 denoting his actual fear, for instance, a fear of going to 21 jail and then also statements where he might have talked 22 about which path he was going to take. 23 Do you recall, as you sit here today, when and 24 if Michael made any statements of that nature? 25 A. I don't recall specifically if I read those 26 statements in the interrogation: "I confess because I 27 wanted to avoid punishment or the threat of homosexual 28 rape in prison and I want to take the good path and get Peterson & Associates Court Reporting, Inc. 108 1 rehabilitation," or if I encountered those statements 2 elsewhere. 3 Q. Do you recall if Michael ever made those 4 statements at all? 5 A. Yes. 6 Q. You do recall him making statements of that 7 nature? 8 A. Yes. 9 Q. What's your best recall of what he said in 10 those types of statements? 11 A. My best recall is that he said -- I believe it 12 was on the Today Show recently. I saw him on a television 13 show. He said that. Then, of course, it's in Calaruso's 14 report, his interview of him. 15 He was convinced his situation was hopeless, 16 they had all of this evidence, he must have done it, he 17 was afraid of going to prison. He was given these two 18 paths and the rational choice was to admit. There was all 19 this evidence. He couldn't remember. He was broken down 20 and avoid the threat of prison and formal punishment and 21 homosexual rape and, instead, receive rehabilitation. 22 Q. So the statements that you're referencing as 23 best you can recall contained the information you just 24 said and were made on the Today Show and in the interview 25 with Dr. Calaruso? 26 A. I saw him interviewed on the Connie Chung show 27 recently. His interview on Connie Chung; his interview on 28 the Today Show; the excerpts of interviews that Peterson & Associates Court Reporting, Inc. 109 1 Dr. Calaruso had done with him that's in Dr. Calaruso's 2 report, and I think that's consistent with statements he 3 made in his interrogation about his fears, but I don't 4 recall whether he explicitly stated what motivated him to 5 make that confession in the interrogation itself. 6 Q. One of the things you talk about often in your 7 vernacular is the concept of contamination; correct? 8 A. Correct. 9 Q. By that, you mean that the suspect's statements 10 can be the subject of contamination in terms of him 11 adopting information he has received not from having been 12 the criminal or done the crime but, rather, information he 13 received from listening to things that interrogators say 14 to him; correct? 15 A. Correct. 16 Q. Contamination is equally possible by 17 conversations with one's attorneys when filing a lawsuit 18 against those officers, don't you think? 19 A. Yes, I think that's possible. But now, I'm 20 looking at notes that I prepared for this deposition on 21 his interrogation, and I have in my notes that he tells 22 them the only reason he is falsely confessing is because 23 of their coercive threats and his fear of going to prison 24 if he does not comply with their demands. 25 So if my notes are accurate, he tells them in 26 the interrogation that was his motive for falsely 27 confessing. If my notes are not accurate, then that's 28 wrong. Peterson & Associates Court Reporting, Inc. 110 1 With regard to the question of contamination, 2 you are right, the possibility exists. When we talk about 3 contamination, we talk about it mostly in the context of 4 the post-admission narrative and the interrogator feeding 5 the details to the suspect -- misleading details that turn 6 out to be erroneous. 7 If somebody were to attribute a motive after 8 the interrogation as the result of what somebody else 9 said, that might be referred to as the product of 10 suggestion, not so much contamination. 11 I personally don't believe that's present here 12 precisely because of what's in my notes. 13 MR. ARNELL: When you say "here," you're 14 referring to the interrogation? 15 THE WITNESS: "Here" is the interrogation of 16 Michael Crowe on the 22nd and 23rd of January, 1998. 17 BY MR. WAGGONER: 18 Q. Do your notes make reference to where in the 19 transcript you're referring to that you believe Michael 20 said those things? 21 A. No, they do not. 22 Q. Those are notes you produced in your work on 23 this case? 24 A. Correct. 25 Q. What I'd like you to do right now is hand to me 26 every single piece of paper that has any information that 27 you've generated while working on this case. 28 A. The papers that I would hand to you, if you Peterson & Associates Court Reporting, Inc. 111 1 asked me questions, I'd like to be able to refer back to 2 them. If you want copies, I hope maybe the court reporter 3 can make them and mail the originals back to me. 4 The papers you're asking for are only the 5 papers I brought which are not all of the papers that I've 6 produced in this case, so I just want to make that very 7 clear. You've got a copy of the report. 8 Q. Hand me the whole file because I want to make 9 it clear for the report so I don't wrongfully mislead you 10 later. 11 This file that you've brought in here with you 12 this morning, does it contain everything that you produced 13 in your work on this case? 14 A. No. 15 Q. What is not included in this file? 16 A. Any notes of contemporaneous conversations that 17 I would have had with Mr. Silverman or Mr. Geile, any 18 notes that I would have taken on Dr. Blum's deposition, 19 any other notes that I might have taken in preparing -- if 20 I did take notes -- in preparing the report that I 21 prepared in this case. I think that's it. 22 Q. Once again, the deposition notice required that 23 you bring with you everything that you've produced in this 24 case as well as everything you've reviewed in this case 25 given -- I'm not saying it's your fault, but you said the 26 notes of deposition were never forwarded to you -- 27 (Interruption.) 28 /// Peterson & Associates Court Reporting, Inc. 112 1 BY MR. WAGGONER: 2 Q. Do you need to take a break? 3 A. We're going to have to talk about this. 4 MR. WAGGONER: Why don't we go off the record. 5 The record should reflect the witness has been 6 handed a note. 7 Given the deposition notice required you bring 8 those materials and those materials are not being produced 9 today, I am not going to be able to complete your 10 deposition today. 11 I will complete it based upon what we have 12 before us, but those materials that were not produced 13 today will have to be produced, particularly the things 14 that you produced as opposed to the things you reviewed. 15 They will have to be produced, and then if we 16 need to do further deposition based upon the review of 17 those notes, we'll do so. 18 Now you want to go off the record to handle 19 that? 20 THE WITNESS: Yeah. I wanted to explain what's 21 going on here. 22 (Discussion off the record.) 23 BY MR. WAGGONER: 24 Q. As to the context of this file, it includes a 25 copy of your December 31st, 2002 correspondence to 26 Mr. Silverman as well as your November 30th, 2002 27 correspondence on this report. It includes a copy of the 28 report by Joseph Buckley dated December 13, 2002; a copy Peterson & Associates Court Reporting, Inc. 113 1 of your curriculum vitae dated January 2003; 2 correspondence from the University of California Irvine 3 that doesn't seem to be particularly related to this case. 4 A. That's not relevant to this case. 5 Q. Those documents I just listed, I will return to 6 you and not make a copy of or mark as an exhibit to this 7 deposition. 8 The remaining documents in your file will be 9 marked as Exhibit 139 collectively. They will be copied 10 and returned to you and you can hold them during the 11 deposition. No problem there. 12 (Defendants' Exhibit 139 was marked.) 13 BY MR. WAGGONER: 14 Q. Is it accurate to say that any handwriting on 15 any of this file marked as 139 is your handwriting? 16 A. Correct. 17 Q. And the typewritten notes, were those prepared 18 by you as well? 19 A. Correct. 20 Q. I'm returning the file to you minus your notes 21 on the February 10 interrogation. In a minute I'm going 22 to ask you some questions about those. 23 I'll hand you that document back as well 24 because it will be more than a few minutes before I get to 25 that. 26 Where are the remaining materials of your file 27 that you listed that you had produced in your work on this 28 case? Where are they physically located right now? Peterson & Associates Court Reporting, Inc. 114 1 A. Most of them are in the hotel where I'm 2 staying. 3 Q. Here in San Diego? 4 A. Correct. 5 Q. Is there some reason why you didn't bring those 6 over here with you? 7 A. I didn't think to bring them. I didn't drive 8 here. Mr. Silverman picked me up and I got a lot of 9 materials. Had I been asked to bring those, I would have 10 brought them. Some materials would also be at my house. 11 Q. You made a couple references to statements 12 where you believe Michael Crowe was threatened with 13 potential homosexual rape in prison? 14 A. Correct. 15 Q. Where was that ever said? 16 A. I don't think it was said explicitly. I think 17 it was implied. I don't know the page and line cite, but 18 it would be in the portion of his interrogation where he 19 was being told what happens to people in prison. You have 20 to take common showers and go to adult prison. You have 21 no privacy and people are looking in. Images were 22 conjured up, my interpretation, of what was being said of 23 the horror of prison life. It's not a long step to infer 24 what happens to young men in prison from what was being 25 said. 26 Q. What was actually said was simply that he would 27 have to take public showers and he would not be alone when 28 you in prison, in the presence of other people virtually Peterson & Associates Court Reporting, Inc. 115 1 throughout your day and all of your basic functions that 2 you have to perform; correct? 3 A. I believe so. There's a record in this case 4 that speaks for itself. There may have been some more 5 details, but I think that is what was explicitly said, 6 yes. 7 Q. Do you have a recall of a fairly substantial 8 break on the tape early on on January 27, 1998 with 9 Joshua Treadway? 10 A. No, not independently. 11 Q. Has anyone ever told you what the chronology 12 was on January 27, 1998 with respect to Joshua Treadway, 13 what happened to him in terms of when he came to the 14 station and then what happened when a break was taken and 15 then when he comes back on camera, given the chronology of 16 what happened and the times? 17 A. No and yes, I think. I know there was a 18 break. I do recall that there was a break on tape because 19 he comes back, if I recall correctly, crying and 20 hysterical and he had not been actually threatened with 21 the murder charge on tape, but he was talking about not 22 being guilty of murder. 23 What I recall, either from the trial brief or 24 from conversations with Mr. Silverman or elsewhere that 25 I'm not recalling, is that Mr. Joshua Treadway was 26 arrested at his house and taken down to the police station 27 on the 27th. 28 Q. What do you recall of what he was arrested for? Peterson & Associates Court Reporting, Inc. 116 1 A. I may be wrong, but I think it was possessing a 2 stolen knife. 3 Q. Do you have a recall of Joshua Treadway during 4 your interrogation on tape ever being told that the 5 officer had a warrant for his arrest? 6 A. I do not recall that on tape, no. 7 Q. But do you refer to statements by 8 Joshua Treadway that he was told he had a warrant out for 9 his arrest in your notes? 10 A. I believe I do. I have to double-check the 11 notes. I believe that I was -- I read that in the trial 12 brief and it came up in conversations with Mr. Silverman. 13 I may also have been previously aware of that allegation. 14 Q. On Page 9 of your report, in the paragraph at 15 the top, you talk about Joshua Treadway and his desire to 16 tell Detective Claytor what he wants to hear, and then 17 later on down the page at the bottom of the second 18 paragraph, you again say that there is an instance where 19 the only way he can help Joshua Treadway is if he tells 20 Detective Claytor the story that Detective Claytor wants 21 to hear. 22 Can you point to any instance on the tape 23 where in an interrogation Joshua Treadway was actually 24 told that he needs to tell the officer what the officer 25 wants to hear? 26 A. No. I can't recall off the top of my head 27 specifically any officer using those words, although it's 28 possible they did. Peterson & Associates Court Reporting, Inc. 117 1 But I think the message was clear. When they 2 said tell us the truth or that's not adding up or that's 3 not the right thing, they had a vision or script of what 4 they believed occurred or want to have occurred and they 5 were trying to move him to that, and he wasn't telling 6 them what they wanted to hear. They continued to assert 7 coercive pressure that was terrifying, among other things. 8 Q. You interpret a statement by an officer to tell 9 me the truth and I don't believe the story you're 10 currently telling me adds up, I think you're lying to me, 11 I want you to tell me the truth -- you would interpret 12 that as being a statement by the officer that he's telling 13 the person, tell me what I want to hear? 14 A. I think in this context there's no other 15 reasonable interpretation because there's a series of lies 16 and threats. They don't let him go to the bathroom. They 17 deny some of his requests for parents. They deny his 18 request for caffeine. They deny his request to see a high 19 school counselor. He's tired and deprived of sleep. 20 I think the message of all these actions are 21 very clear. It's not just tell us the truth. There's a 22 lot more going on there. And, yes, I think the message is 23 tell us what we want to hear if you want to go home. 24 Q. Again, if I ask you if you could cite me to 25 page/line references of where these statements occurred, 26 you wouldn't be able to do that? 27 A. I don't have a specific memory, no, of these 28 exact words being used, but if you asked me to go back Peterson & Associates Court Reporting, Inc. 118 1 into the transcript and provide you references of what I'm 2 talking about, I think I could do that. 3 Q. But not today? 4 A. Unfortunately, not today. Even if I had the 5 materials, possibly not today given the massive volume. 6 MR. ARNELL: When you say, "unfortunately not 7 today," why is that? 8 THE WITNESS: Because I don't have materials 9 with me. 10 MR. ARNELL: I think we have those 11 transcripts. They have been marked as exhibits. 12 MR. WAGGONER: I think you're right. 13 BY MR. WAGGONER: 14 Q. The point is, you would have to thumb through 15 hundreds of pages of transcript to try and locate where it 16 is that these events that you're referring to occurred? 17 A. Correct, and I would have an advantage if I had 18 my own transcripts because I do make notes and 19 underlinings in the margins. 20 Q. For instance, you read Joe Buckley's report; 21 correct? 22 A. Correct. 23 Q. In his report, when he cites actual things that 24 he might have said, he puts in there a page/line reference 25 and your report, not to be pejorative, where it's lacking 26 is that you don't do that so it doesn't enable you to do 27 that. 28 Let's go to Buckley's report. You have read Peterson & Associates Court Reporting, Inc. 119 1 Mr. Buckley's report; correct? 2 A. Correct. 3 Q. In his report, he basically expresses a 4 conclusion that is in agreement with that part of 5 Judge Thompson's decision about the volunteeringness of 6 Joshua Treadway's February 10th, 1998 confession; is that 7 correct? 8 A. That's my recollection, yes. 9 Q. You obviously disagree with that? 10 A. Correct. 11 Q. In fact, in your report on Page 10, you state, 12 "The 12-plus hour interrogation on February 10th was 13 scarcely much better and produced similar results," 14 referring back to the 27th and 28th interrogation; 15 correct? 16 A. Correct. 17 Q. What is it about the February 10th 18 interrogation -- skip that. 19 Going on to Page 11 in your report, you state 20 that, in the middle paragraph, your conclusion on 21 Joshua Treadway. 22 "In my professional opinion, the 12-plus hour 23 interrogation of Joshua Treadway on February 10th, like 24 its predecessor on January 27th and 28th, was improperly 25 and recklessly conducted, premised on fraud and 26 intimidation and highly coercive. Once again, the 27 marathon late night interrogation of Joshua Treadway on 28 February 10th, like its predecessor, resulted in a Peterson & Associates Court Reporting, Inc. 120 1 coerced, compliant confession." 2 Just parenthetically, why do you say it was a 3 late night interrogation? 4 A. I may have been mistaken. I know he appeared 5 extremely tired, and toward the end, he made a request to 6 go to sleep. He wasn't able to, or he told them he was 7 tired and he ended up falling to sleep or it sounded to me 8 listening to the tape he fell asleep on the ground in one 9 of the breaks. 10 I thought at the time I wrote this it was a 11 late night interrogation, but I may have been mistaken. 12 Q. Your notes indicate that event where he falls 13 asleep on the floor is the February 10th tape as opposed 14 to the January 27th/28th tape? 15 A. Yes. 16 Q. What is it about the interrogation of 17 February 10th that was reckless such that you termed it 18 recklessly conducted? 19 A. McDonough -- there's a number of things that I 20 would say in response to that that support my opinion. 21 If he had been told that there was a murder 22 warrant on him and they could call it in at any time, and 23 he was led to believe that if he didn't comply, he would 24 be charged with murder, then it seems to me the 25 interrogation is inherently coercive. That's a reckless 26 and improper basis to conduct an interrogation. 27 You're free, you're out there, and we can 28 arrest you for murder anytime we want so you better Peterson & Associates Court Reporting, Inc. 121 1 cooperate with us. And if you do cooperate with us, you 2 won't get charged with murder which is the flip side of 3 the threat, the implied promise. 4 That is inherently coercive, creates fear and 5 no meaningful choice if you wish to hang on to your 6 freedom, but to cooperate. That would be No. 1. 7 No. 2, this fact is repeated by McDonough in 8 the interrogation that Treadway could be charged with 9 murder and could spend the rest of his life in prison, 10 which is conveying a very potent threat. 11 Treadway says that he's afraid, and then in the 12 interrogation, McDonough suggests that if -- it may have 13 been in response to a question by Treadway but, 14 nevertheless, inappropriate -- whether he gets to leave 15 the interrogation depends on what he tells the 16 investigators creating a straight quid pro quo, 17 reenforcing the inherent threat and coercive promises that 18 are present by virtue of the nature of the circumstances. 19 So I think the specter of being -- the threat 20 of being charged with murder and sentenced to prison for 21 the rest of his life hangs over Treadway. 22 I think the accusations and false evidence 23 ploys and implicit threats in the interrogation reinforce 24 that. 25 I think he's pressured to come up with a story 26 that, though not fed the explicit details, a story that 27 McDonough will buy. 28 I think it's clear from watching that lengthy Peterson & Associates Court Reporting, Inc. 122 1 interrogation that he's terrified. He's afraid. He is 2 trying to be compliant. He's trying to get the approval. 3 One thing he states he's afraid of is 4 displeasing McDonough. I don't think these are 5 appropriate circumstances for an interrogation. 6 I don't think it's surprising that he breaks 7 down and cries several times throughout that 8 interrogation. 9 The basis for my opinion is primarily the 10 threats and promises inherent in the situation and 11 implicit and explicitly stated. 12 Q. Can you point to one single threat made by an 13 officer to Joshua Treadway on the tape in the 14 interrogation on February 10th, 1998? 15 A. I think I can. I have in my notes here -- I 16 don't have any page references, but I have Page 114 of the 17 transcript. McDonough brings up the threat of the D.A. 18 charging Treadway with murder. That's an implicit threat. 19 There's a reference four pages later to the 20 jury. Juries are usually brought in in the context of 21 interrogation to focus the defendant on the consequences 22 of admission, which is the preferred course of action from 23 the interrogator's standpoint versus denial. 24 Jurys are usually invoked to remind the suspect 25 being interrogated that they will be punished and judged 26 more harshly by a judge if they don't give the desired 27 confession. 28 I have in my notes, but without a page Peterson & Associates Court Reporting, Inc. 123 1 reference, McDonough tells Treadway he would be charged 2 with murder and could spend the rest of his life in 3 prison. I don't know that. That could be redundant with 4 Page 114. 5 There may be other implicit threats in the 6 interrogation, but I have to see the transcript. I do see 7 there are several implicit, if not expressed, threats 8 identifiable in that transcript. 9 Q. What do your notes reflect was said regarding 10 the jury? 11 A. I just have the note here of a jury reference, 12 a reference to the jury. I would have to see the 13 transcripts. 14 Q. So from that note, the fact that there's a 15 reference to a jury, how does that tell you that there was 16 anything threatening by virtue of referencing a jury? 17 A. Again, I would have to see -- it doesn't, but 18 typically juries are mentioned in the context of the 19 interrogation to focus the suspect on the threat of 20 punishment if they don't comply. I would need to see the 21 actual interrogation itself. 22 Q. You said you have not read the conclusion of 23 Mr. Ofshee's testimony and he testified at the 707 hearing 24 on this matter. 25 A. I read a very voluminous transcript. I think 26 it was only the first transcript. 27 Q. He noted this same supposed threat by Officer 28 McDonough about spending the rest of his life in prison Peterson & Associates Court Reporting, Inc. 124 1 that you've noted. Do you recall that from his testimony? 2 A. I do recall that he noted threats, but I don't 3 recall whether he specifically noted the threat in the 4 second interrogation of Treadway that we were talking 5 about. It's certainly possible. 6 I know he did talk about threats in the portion 7 of his testimony that I read. 8 Q. In the portion you read, did you see the part 9 where the prosecutor, Summer Stephan, stood up and 10 corrected him on the transcript that it was not McDonough 11 saying that, but it was Treadway saying that? 12 A. I don't recall reading that. I know that on 13 Page 53 of this second interrogation, Treadway discusses 14 the possibility of going to prison regarding what Claytor 15 had told him earlier. If he's referring to that, that 16 would make sense. 17 Q. What does your note in handwriting say about 18 the prospect of being charged with murder? 19 A. "McDonough tells Treadway he would be charged 20 with murder and could spend the rest of his life in 21 prison," and then later on I have, "Detective McDonough 22 breaks down Treadway and causes him to adopt the script 23 that McDonough is seeking of the specter. Detective 24 Claytor's threat of being charged with murder and 25 sentenced to prison for the rest of his life hanging over 26 his head." 27 Q. So if it turns out when you actually review the 28 transcript, McDonough did not say any such thing, but Peterson & Associates Court Reporting, Inc. 125 1 that's a place where words that Treadway spoke are being 2 mistakenly attributed to McDonough, then the only supposed 3 threat that you've identified that an officer said is this 4 reference to a jury; is that right? 5 A. Well, I read you two statements from my notes, 6 and the second one was the one by the specter, Detective 7 Claytor's threat and that is correct, that Detective 8 Claytor's threat -- the first one which I read was 9 McDonough tells Treadway he would be charged with murder 10 and could spend the rest of his life in prison. 11 Unless that's in error, McDonough didn't make 12 that statement which, in my opinion, at least is an 13 implicit threat about what would happen if he didn't 14 provide McDonough with an acceptable account. 15 Q. What I'm asking you is to accept my 16 representation that that is, in fact, a misassertion as 17 far as who said that statement. In fact, those are 18 statements by Joshua Treadway and you've got two separate 19 references in your notes to that, but I believe it's to 20 the same thing and it's Joshua Treadway making the 21 statement. 22 Absent that, isn't it true -- you have to 23 accept my representation -- absent that, isn't it true 24 that the only threat that you can identify an officer 25 making on February 10th, 1998 is a reference on Page 118 26 to a jury? 27 A. According to my notes, if what you're saying is 28 correct, that is true, a specific statement that McDonough Peterson & Associates Court Reporting, Inc. 126 1 made that would be a potential threat or an implicit 2 threat. 3 Q. You testified that it's clear from watching the 4 February 10th interrogation that Joshua was terrified and 5 afraid. What do you base that statement on? 6 A. I base that on my perception of how he was 7 acting and what he was saying in that 10- or 12-hour 8 interrogation, although I don't recall specific page and 9 line cites off the top of my head right now. I do recall 10 there were times when he said he was afraid. 11 Q. Do you recall him attributing that fear to an 12 object, fear of Aaron Houser? 13 A. There were times when he discussed his fear of 14 Aaron Houser as well, but there were independent times 15 when he discussed his fear of going to prison or being in 16 the interrogation. 17 Q. Assuming that you're correct, that at some 18 point he expresses a fear of going to prison, how is that, 19 in your mind, attributable to some threat made by an 20 officer as opposed to being attributable to Joshua's 21 common sense deduction that I've just confessed to being 22 part of the planning and execution of a brutal murder and 23 now I'm scared to death I'm going to prison? 24 A. I think it's important to look at the totality 25 of the circumstances. 26 In the first interrogation, he wouldn't give 27 them what they wanted, he wouldn't give them what they 28 wanted. He finally relented. He was allowed to go home. Peterson & Associates Court Reporting, Inc. 127 1 He made an admission during that interrogation 2 that could have landed him in prison, but it didn't. He 3 had this threat of the murder warrant hanging over his 4 head. He tells them what they want to hear, what he 5 thinks is acceptable and they keep pressuring and 6 pressuring and pressuring. He's trying to make them 7 happy, fear of displeasing them. 8 It's possible what you're saying, but it 9 doesn't fit with my interpretation of the evidence from 10 the totality of the circumstances of what occurred before 11 it, the messages the interrogators were communicating. 12 How when he made the plea that last time, they let him 13 go. 14 I guess what I understand to be his 15 understanding of the situation, that if he tells them what 16 they want to hear, he complies, he's out of there. 17 Q. Don't you recall that his expressions of fear 18 on February 10th don't start manifesting themselves until 19 fairly late in that interrogation? 20 A. I don't recall specifically where he talks 21 about his fear or when he talks about his fear. I do know 22 that there is a section which you may be referring to 23 about his fear of Aaron Houser and Aaron Houser killing 24 his family. If that's the fear you're referring to, I 25 think that's later. 26 Q. I'm talking about any manifestation by verbal 27 statements of Joshua Treadway of fear being fairly late in 28 the interrogation on February 10th, 1998. Peterson & Associates Court Reporting, Inc. 128 1 A. Again, I don't recall specifically at what 2 point in that interrogation he describes his fears. 3 Q. Would you reject this description of the 4 February 10th interrogation of Joshua Treadway, that being 5 that at the beginning of the interrogation of February 6 10th, he's actually quite casual, very relaxed, engages in 7 joking around with Officer McDonough, is very familiar 8 with Officer McDonough, and it isn't until after he's made 9 some admissions that much more deeply implicate him in the 10 murder that he then starts expressing any manifestation of 11 fear and being tense and stress? 12 A. Certainly there is the appearance early in the 13 interrogation he's more relaxed than he is later in the 14 interrogation. 15 Before he's told that he failed the computer 16 voice stress analyzer, before he breaks down and cries, 17 yeah, he does appear more relaxed than he does afterwards. 18 Q. Have you ever engaged in any studies designed 19 at ascertaining and measuring, if possible, what the 20 effect is on a suspect when, after being interrogated, 21 being subjected to coercive tactics by the police, he's 22 then released for a period of 13 days to go home and be 23 free with his family? 24 A. No. This is a unique situation. 25 Q. So then you have no way of stating, based upon 26 any prior research or studies, what one should expect the 27 effect of that 13-day hiatus to be; correct? 28 A. I can't base my opinion on a study with Peterson & Associates Court Reporting, Inc. 129 1 identical circumstances to this case, correct. 2 Q. Or even a study with similar circumstances to 3 this case; correct? 4 A. If you're talking about specifically the 13-day 5 hiatus and the effect of a threat, if there was a threat, 6 the answer is yes. 7 Q. Can you cite to any evidence that leads you to 8 believe that the things Joshua Treadway says that are 9 inculpatory on February 10th, 1998 were motivated by any 10 coercion that occurred on January 27/28th? 11 A. You're talking about some explicit document 12 that would say I was motivated to make these false 13 statements by the threat hanging over my head? 14 I haven't read his deposition. I haven't read 15 his father's deposition. I believe it's in the trial 16 brief prepared by Mr. Silverman. 17 Q. There's no statement in his February 10th 18 interrogation that indicates that the reason he's saying 19 what he's saying is because he's still subject to the 20 coercion of January 27/28; is that correct? 21 A. I would have to go back through and look at 22 that. I thought there were places where he said he was 23 afraid. I just can't tell you where they are, and I don't 24 know how explicit he is with regard to what's motivating 25 the statement that he makes. 26 Q. You also state that the February 10th 27 interrogation was premised on fraud and intimidation. 28 Is there anything in particular that you would Peterson & Associates Court Reporting, Inc. 130 1 label as fraud and intimidation that is conduct different 2 than or outside of what you've already listed as being the 3 basis for your opinion that it was recklessly conducted? 4 A. No. I think it would incorporate it. The only 5 thing I would add is that the intimidation comes from what 6 I referred to before. 7 The fraud really comes from the computer voice 8 stress analyzer, the idea that this utterly bogus 9 instrument which purports to measure deception can somehow 10 verify the truth of what he is saying or verify the 11 falseness of it. 12 And so throughout that interrogation, it's 13 actually someone in the interrogation before he actually 14 runs him through and then fails him in a rigged manner on 15 exam. That's where fraud comes in. 16 The belief is that this instrument can prove 17 whether or not he's telling the truth and he's constantly 18 cajoled into saying that's not it. You're going to fail 19 on this test. You got this wrong last time. You're going 20 to get it wrong again as if McDonough is somehow 21 omniscient. 22 Q. Your opinion also states that the February 10th 23 interrogation was highly coercive. 24 Can you cite to any particular conduct that 25 makes you say that it was highly coercive other than the 26 same conduct you already reported on the basis of your 27 opinion that it was recklessly conducted and based on 28 fraud and intimidation? Peterson & Associates Court Reporting, Inc. 131 1 A. The primary basis for my opinion that it was a 2 highly, quote, "coercive interrogation," is what I 3 mentioned before, the inherent threat as well as implicit 4 threats during the interrogation that reinforce the threat 5 of the murder warrant hanging over his head and the 6 ongoing coercion from the prior interrogation. 7 I believe there are other aspects of that 8 interrogation which contribute to the coerciveness of the 9 interrogation. They deny a request for sleep. They deny 10 a request for the use of a bathroom. I think he is given 11 some opportunity to go to the bathroom, but not all. They 12 deny at least one request for a parent. They cause him to 13 break down and cry repeatedly. It's a very long 14 interrogation. 15 Each one piece of that may not be coercive, but 16 when you already have a coercive interrogation and you 17 combine these things in their totality, I think it 18 compounds and adds to the coercion of the interrogation. 19 Q. Did you review the conclusion of the 20 activities on February 10th where a new officer, Officer 21 Wrisley, comes in and does an interrogation of Joshua 22 Treadway and he begins it with the reading of his Miranda 23 rights? 24 A. Yes, I did. 25 Q. When you described these various elements of 26 the February 10th interrogation that you talked about, are 27 you lumping that portion where Wrisley is talking to him 28 after Miranda in with the rest of the February 10th Peterson & Associates Court Reporting, Inc. 132 1 interrogation? 2 A. I believe I was talking about the interrogation 3 as a whole and I hadn't separated those two out. I'm not 4 sure that fully answers your question. 5 Q. Can you point to any particular conduct or 6 statement by Officer Wrisley during the post-Miranda 7 portion of Joshua Treadway's February 10th, 1998 statement 8 which was itself coercive in any way? 9 A. There are a couple points in that interrogation 10 where he asks whether he can go home, and I should have 11 mentioned it in an earlier answer. At one point in my 12 notes, McDonough tells him a decision hasn't been made 13 yet. 14 I would have to double-check, but I believe he 15 also asked the question to Wrisley post-Miranda and they 16 say that's a -- Wrisley says that's a decision they're 17 making right now, implying whether he'll be able to go 18 home depends on what he tells them. 19 Clearly, if I'm right -- I'll have to 20 double-check with the transcript. Wrisley says that -- it 21 suggests a quid pro quo, being able to go home, freedom, 22 leniency in exchange for providing the desired 23 information. 24 I also in my notes suggest there's a reference 25 to the district attorney and the only way that he can help 26 himself, "he" being Treadway, is by being truthful. I 27 would have to look at the transcript specifically to see 28 whether that communicates a threat. Peterson & Associates Court Reporting, Inc. 133 1 Then it's on Wrisley's watch that he's asked 2 to -- he tells him he's real tired and would he be able to 3 go to sleep. He falls asleep essentially when he's laying 4 on the ground during a recess shortly before the 5 interrogation ends. 6 Q. Do you have a note of how many minutes of 7 interrogation come after that point in time where he's 8 lying on the floor? 9 A. No, I don't. I believe it's around Page 350 in 10 the interrogation and the interrogation ends around 370, 11 so the last 15, 20 pages of the interrogation. 12 Q. There would be nothing coercive, would there, 13 therefore, been Mirandized because he's in custody that 14 no, you're not going home? 15 A. In and of itself, no. There would be nothing 16 coercive in saying that. If the interrogator were to 17 communicate the message that you're not going home unless 18 or in exchange for a particular statement, then that would 19 change it. 20 Q. Do you have an opinion that giving a suspect 21 Miranda warnings has any affect at all in dissipating any 22 previous coercion or ameliorating any coercion after the 23 Miranda rights have been given? 24 A. I think coercion predates the Miranda warnings 25 in terms of sequence of an interrogation. I don't think 26 the Miranda warnings dissipate that coercion. I think 27 once there are threats or promises or certain structure of 28 pattern on the table, especially if the interrogation goes Peterson & Associates Court Reporting, Inc. 134 1 many hours. The residual of the well known Miranda 2 warnings may be meaningless. 3 Q. Have you ever done any studies or tried to 4 quantify in any way or measure the effectiveness of 5 Miranda warnings in counteracting previous threats of 6 punishment or promises of leniency? 7 A. Specifically, no. I have in others quantified 8 invocation rate of waiver. Virtually everyone waives. 9 No, the effect of Miranda on dissipating pre-Miranda 10 coercion, no. 11 Q. Are you aware of case law which holds that, if 12 a sufficient lapse of time is given and other conditions 13 such as the material needs of the suspect are tended to 14 and those kinds of things, that the taint of a prior 15 illegally obtained confession can be ameliorated after a 16 sufficient period of time elapses in taking care of those 17 material needs, then reading that person his Miranda 18 rights and reinterrogate him? 19 A. I don't recall a specific case on that point. 20 As a general proposition, I am aware that that issue comes 21 up. I just don't recall the specific case that pertains 22 to it. 23 Q. Your opinion is that's not true and that case 24 law is premised on a wrong premise or based on a wrong 25 premise? 26 MR. ROBINSON: Objection; calls for a legal 27 conclusion. 28 THE WITNESS: It would depend on the specific Peterson & Associates Court Reporting, Inc. 135 1 circumstance. I think I might be able to imagine 2 circumstances in which the giving of a Miranda warning 3 could correct something that came before it, but I think 4 the circumstances would be quite limited and don't pertain 5 to my understanding how these interrogations occurred. 6 BY MR. WAGGONER: 7 Q. Are you aware of the concept in the case law 8 that the court assesses the totality of the circumstances 9 of an interrogation to determine whether or not the 10 suspect's will was overborne in order to determine whether 11 or not it was a coerced confession that is inadmissible? 12 A. Correct. 13 Q. How does one determine whether or not the 14 suspect's will was overborne when trying to decide whether 15 or not a confession is coerced? 16 A. My understanding of the case law, just to 17 respond to the premise of your question and then directly 18 to the question itself -- there are two things. There's 19 the police techniques and then the effect of those 20 techniques. Sometimes coercive techniques are presumed to 21 result in involuntary statements. Sometimes there's an 22 analysis of the individual's will in case law. 23 A social scientist can only study what they 24 observe and it's much easier to make a judgment whether 25 techniques are coerced in the research that exists in my 26 field than it is to get inside somebody's head and make 27 that determination physically whether or not their will 28 was overborne, quote, unquote. Peterson & Associates Court Reporting, Inc. 136 1 The analysis of whether an interrogation is 2 coercive in the first instance from a social scientific 3 perspective, looking at the techniques, what are the 4 techniques, were there promises, threats, deprivation of 5 liberties? Any of the classic techniques that are 6 regarded as coercive. 7 Beyond that, I think it's more an interpretive 8 analysis what the record of the interrogation shows, 9 whether the interrogation techniques and the structure and 10 logic of the psychological interrogation led the suspect 11 to perceive that they had no meaningful choice but to 12 comply with the interrogator's wishes and provide the 13 desired statement. 14 That would be how, as a social scientist, I 15 would go about looking for whether or not the 16 interrogation was coercive and likely produced a voluntary 17 or involuntary statement, a two-step process. 18 Q. In your mind, is the second step of that 19 process that you perform simply trying to determine 20 whether or not the suspect's will was overborne under a 21 different label? 22 A. Yes. Essentially, it's trying to determine 23 whether or not the statements that the suspect made in 24 response to the interrogation techniques were voluntary or 25 not voluntary. I would take that as synonymous with -- 26 with that, synonymous with the legal category of 27 overbearing will or overborne will. 28 Q. If a suspect does not make an admission, Peterson & Associates Court Reporting, Inc. 137 1 wouldn't it be safe to say in that interrogation that his 2 will was not overborne? 3 A. I don't think so necessarily. If you take the 4 hypothetical situation of where somebody was physically 5 beaten, but they never confess, they never make a 6 confession, I don't think, by analogy, you would say that 7 person's will wasn't overborne. They just never made the 8 confession. 9 Q. Wouldn't you say that they endured the beating, 10 but that their will was stronger and it wasn't overborne? 11 A. I misspoke. You wouldn't say the interrogation 12 wasn't coercive, but you would say yes, they have the 13 power to resist, in this hypothetical situation, the 14 physical pressure that was being brought to bear to make a 15 confession. 16 Q. It doesn't make a whole lot of sense to say a 17 person's will was overborne and they were forced to 18 maintain their innocence, does it? 19 A. I'm not sure I understand your question. Maybe 20 you're right. It doesn't matter. I misspoke. One can 21 separate the coercion from volunteeringness and you can't 22 have a situation where the interrogation is coercive by 23 everyone's account, but this person does not make a 24 statement and, therefore, a confession. 25 Therefore, you can't say whether the confession 26 was voluntary or involuntary. Obviously in that kind of 27 situation, the person was able to muster some resources to 28 resist pressure to make the confession, which is brought Peterson & Associates Court Reporting, Inc. 138 1 upon by physical coercion. 2 Q. Isn't it true that Aaron Houser resisted 3 whatever attempts at coercion were made upon him, that his 4 will was not overborne, and that he was successful in 5 maintaining his innocence throughout his interrogation? 6 MR. ARNELL: That's compound. 7 THE WITNESS: At some point, I think we should 8 take a break. 9 Yes, it is true that Aaron Houser ultimately 10 did not make what I would call objectively inculpatory 11 incriminating statements. 12 He did make statements which I think were 13 mistakenly and erroneously taken to be incriminating, even 14 though I don't think they were objectively. 15 So because he did not make a confession or any 16 incriminating statements, you wouldn't say that he made 17 involuntary, incriminating statements or an involuntary 18 confession. 19 Nevertheless, I do think that some very 20 coercive techniques were used in Aaron Houser's 21 interrogation, separating the coerciveness of the 22 techniques from the volunteeringness of any incriminating 23 statements that were made. 24 Q. So then in the two-part analysis we've been 25 working with, what you're saying is, although there were 26 coercive techniques against Aaron Houser, they did not 27 result in his will being overborne; is that correct? 28 A. I guess what I was saying, they didn't result Peterson & Associates Court Reporting, Inc. 139 1 in Aaron Houser making involuntary confessions so, by 2 definition, he didn't make any confessions so how could 3 they be involuntary? 4 The question to ask about the statements that 5 were taken to be inculpatory that Aaron Houser made, how 6 would you hypothetically have killed Stephanie Crowe. 7 The question there has to be whether or not at 8 that point in the interrogation, Aaron Houser, had 9 coercive techniques been used and whether or not he came 10 to perceive at that point he had no meaningful choice but 11 to comply with the questions that were being posed to him. 12 Q. Have you performed that analysis, particularly 13 looked at that issue of whether or not at the time he's 14 answering those hypothetical questions, whether or not, by 15 that point in time, coercive tactics had been used against 16 him? 17 A. No. I have to go back through my notes to 18 analyze when the coercive techniques were used and whether 19 they predated that and piece together what he was saying 20 prior to being asked those questions. 21 Q. I'm going to honor your request for a break. I 22 just want to finish this line and I might be done 23 totally. 24 If you would assume for the moment that there 25 were no coercive tactics engaged in by the officers 26 interrogating Aaron Houser up to the point in time where 27 he is discussing his hypothetical answers to the 28 hypothetical questions and that any coercive tactics that Peterson & Associates Court Reporting, Inc. 140 1 occurred occurred after that, wouldn't it be your 2 conclusion that those coercive tactics did not result in 3 Aaron Houser's will being overborne or, more consistent 4 with your vernacular, did not result in Aaron Houser 5 involuntarily making any statements? 6 A. If the interrogation was -- if there was no 7 coercion in the interrogation or the interrogation was not 8 coercive up to the point he made those statements, yes, 9 those statements would not be the product of coercive 10 interrogation. 11 Q. Those statements, you mean hypothetical 12 statements? 13 A. Hypothetical statements, correct, even though 14 there may have been tremendous -- I'm phrasing this in the 15 hypothetical -- tremendous coercion in that interrogation 16 that I believe there was. If the coercion occurred after 17 and no coercion before, obviously those statements are not 18 the product of coercion. 19 Q. The further conclusion that I'm asking from 20 that analysis would be also true that any statements after 21 those hypothetical answers, even in the context of 22 whatever course of tactics are engaged in by your 23 conclusion, nevertheless, did not result in causing Aaron 24 to make involuntary statements because, after those 25 hypothetical answers were over, from there on, he didn't 26 make any involuntary statements. Everything he said was a 27 denial of any involvement in the murder and statements to 28 the effect he was at home asleep when the murder occurred; Peterson & Associates Court Reporting, Inc. 141 1 isn't that correct? 2 A. I think so. You said involuntary statements. 3 I think you meant incriminating statements in your 4 question. 5 Q. Involuntary or incriminating. 6 A. Well, he may have made involuntary statements 7 that weren't incriminating and, therefore, not significant 8 in the analysis but, nevertheless, were the product of the 9 coercion that followed the hypothetical statements. 10 I just wanted to take a moment to review my 11 report here. I guess I would also want to add that 12 there's a Miranda issue here in Aaron Houser's 13 interrogation, and so from a legal standpoint, because he 14 hadn't been given Miranda warnings, the statements may 15 have been prior to legal compulsion, 5th Amendment, but 16 not coercion per the 14th amendment. 17 Q. Have you been provided the -- first, let me ask 18 you, do you recall that portion of Aaron's interrogation 19 where right after he's finally talked to his dad and his 20 dad has said, go ahead, son, do the CVSA and dad leaves 21 the room, the first thing, McDonough was on camera, hands 22 Aaron a piece of paper and has him read it and sign it and 23 asking if he understands what that means? Do you recall 24 that going on? 25 A. Yes. 26 Q. Have you ever been provided that piece of paper 27 and provided with what it says? 28 A. Not for this case. It's possible it's in my Peterson & Associates Court Reporting, Inc. 142 1 file on a criminal case. I haven't been provided it. 2 My recollection was Judge Thompson decided that 3 waiver is not the equivalent of a Miranda waiver. 4 Q. Would it be surprising to you to learn that the 5 middle two paragraphs of that statement are an exact 6 recitation of the Miranda warning? 7 A. If it was the exact recitation of all the 8 Miranda warnings, not just part of the Miranda warnings, 9 and if any addition to the Miranda, do you understand 10 these rights and having these rights in mind, do you wish 11 to speak to us, it would surprise me because I would be -- 12 why would it say waiver to computer voice stress analyzer 13 as opposed to Miranda rights which is usually what those 14 forms say. 15 Q. Have you been informed of the cut to 16 McDonough's deposition where he testified he had two 17 different forms, one CVSA, not Miranda inclusive? One is 18 a suspect not in custody and the other he uses when he 19 is. Have you been informed of that testimony? 20 MR. ARNELL: Assumes facts not in evidence. 21 Go ahead. 22 THE WITNESS: I haven't read Detective 23 McDonough's deposition. 24 MR. WAGGONER: Let's take that break. 25 (Recess taken.) 26 MR. WAGGONER: I'm reserving my right, based 27 upon the earlier statements about the experts' reports and 28 notes on materials that he has reviewed and other notes Peterson & Associates Court Reporting, Inc. 143 1 that he has produced. 2 I'm reserving my right to continue the 3 deposition once we have those materials secured. I'm done 4 questioning. 5 6 EXAMINATION 7 BY MS. FIELD: 8 Q. I introduced myself this morning. My name is 9 Diana Field and I represent Detective Chris McDonough and 10 the City of Oceanside. 11 During your previous testimony with 12 Mr. Waggoner, you were indicating some statements that you 13 attributed to Detective McDonough with regards to 14 Joshua Treadway asking about going home. 15 Do you recall those statements? 16 A. No. Maybe you could refresh my recollection. 17 Q. That Joshua asked when he was going home and he 18 was told that the decision had not yet been made. 19 A. Which of the two interrogations is this? Would 20 this be the second? 21 Q. In the second interrogation, February 10th 22 interrogation. You were listing that as one of the 23 factors that you used as part of your basis for finding 24 that interrogation coercive. Do you recall that? 25 A. I think I do now, yes. 26 Q. You read it off your notes, I believe. 27 A. Correct. I'm trying to find those now. 28 Q. Are those your notes from January 27 and 28? Peterson & Associates Court Reporting, Inc. 144 1 A. These are longer notes than the other notes. 2 Yes, Treadway asks him if he'll ever be able to go home 3 again in response, McDonough's suggestion that he will not 4 likely be able to go home and McDonough tells him the 5 decision has not been made yet. 6 Q. It's fairly certain in your mind Detective 7 McDonough was the officer that made that statement to 8 Joshua Treadway? 9 A. According to my notes, yes. I think the 10 statement was also made later on -- may have also been 11 made later on by Claytor, which I think I mentioned as 12 well in the question by Mr. Waggoner. 13 Q. This note, is it something that you made 14 contemporaneous with viewing the videotape and reading the 15 transcript? 16 A. No. These notes I made as I was preparing my 17 reports. I had already viewed the transcript -- viewed 18 the videotape prior to that. 19 Q. How long after viewing the videotape did you 20 generate those notes? 21 A. I would estimate a week to two weeks, three at 22 the most. 23 Q. At the time that you made the notes, you did 24 not feel it necessary to go back and rereview the tapes or 25 the transcripts to see who was speaking as you attributed 26 statements to them in your notes? 27 A. Well, I was reviewing the transcripts when I 28 made these notes in preparation of the report, but at that Peterson & Associates Court Reporting, Inc. 145 1 point, I didn't feel it was necessary for me to go back to 2 the videotapes to watch it. 3 Q. I'm going to show you Page 264 from the 4 February 10th interrogation of Joshua Treadway and I've 5 drawn a little arrow with regard to a reference there. Is 6 that the reference that you're talking about? 7 A. I believe it is, but I'm not 100 percent sure. 8 Q. Right where the arrow is drawn, is that a 9 pretty accurate statement of what you read off with 10 regards to what Joshua said, "Will I be able to go home 11 again"? 12 A. I'm not sure I understand your question. This 13 appears to be what I'm referencing in my notes, but I'm 14 not sure, and it appears to be an accurate transcription 15 of the interrogation, but I have no way of knowing. 16 Q. The statement that's referenced there, since 17 you now have it in front of you, can you read it for me? 18 A. "Will I ever be able to go home again." 19 There's some reference about that that you 20 didn't ask me to read about going home. 21 "That decision hasn't been made yet. That is 22 still being discussed, but that is not an issue we need to 23 deal with like right now. We're still kind of in the 24 truth-getting stage here and that is what is really 25 important." 26 Q. The statement that you reference in your notes 27 regarding Joshua's questions reads how? 28 A. "Treadway asks them if he will ever be able to Peterson & Associates Court Reporting, Inc. 146 1 go home again. In response to McDonough's suggestion that 2 he will not likely be able to go home and McDonough tells 3 him a decision has not been made yet." 4 Q. Would you agree that your notes are very 5 consistent with the passage on that page you just read? 6 A. It appears that part of my notes are consistent 7 with this passage and it appears that part of my notes are 8 referring to what precedes this passage. 9 Q. What part of your notes precedes that passage? 10 A. My notes say, "Treadway asks them if he will 11 ever be able to go home again." In parentheses, "In 12 response to McDonough's suggestion he will not likely be 13 able to go home," end parentheses, "and McDonough tells 14 him a decision has not been made yet." 15 So what I infer from my notes is that prior to 16 this, McDonough had suggested he would not likely be able 17 to go home. 18 Q. But you do not have any notation with regards 19 to in the transcript where McDonough allegedly made that 20 statement; is that correct? 21 A. Correct. I don't have the page number where he 22 would have made that statement. 23 Q. In looking at that passage that's marked there 24 that you just read, did you attribute that statement to 25 anybody? 26 A. The answer to Treadway in the statement, the 27 following question to McDonough. 28 Q. I'm going to ask you to look at another page Peterson & Associates Court Reporting, Inc. 147 1 that shows a couple of pages preceding that reference 2 there and ask if it identifies who is conducting the 3 examination. 4 A. Yes, Detective Claytor. 5 Q. In looking at the following page, do you see 6 any break in the examination where McDonough begins to 7 reexamine Mr. Treadway? 8 A. No, I do not. 9 Q. With regard to the statement that you made 10 about a jury being referenced to Mr. Treadway, to whom did 11 you attribute that statement? 12 A. It doesn't say in my notes who made that 13 statement. Since it was only 118 pages into the second 14 interrogation, my assumption is it was Detective 15 McDonough, but we have to look at the interrogation 16 transcript to see whether that assumption is correct. 17 Q. Your recollection is that it's referenced on 18 Page 118 of the second interrogation? 19 A. Correct. 20 Q. It's a specific reference to a jury being 21 present? 22 A. My notes just say jury reference, so there's 23 some reference to the jury, but without having the 24 transcript present, I can't tell you what that reference 25 is by memory. 26 Q. Is it your opinion that a reference to a jury 27 is something that is inherently coercive during the course 28 of an interrogation? Peterson & Associates Court Reporting, Inc. 148 1 A. Not necessarily inherently coercive. It would 2 depend on the context of the reference to the jury and 3 whether or not the interrogator is trying to focus the 4 suspect on the consequences and potential punishment if 5 the suspect doesn't comply with the interrogator's wishes 6 and imply leniency if he does. It depends on how the 7 reference to the jury is used. 8 Q. So if the reference is with regard to 9 punishment, that would be coercive? 10 A. Yes. 11 Q. If the message is that you will get punished by 12 this jury if you don't comply and you will get leniency, 13 the jury will go easy on you if you do comply, I would say 14 that is a coercive technique. 15 Q. In your opinion, is it coercive during the 16 course of an interrogation to advise or urge the suspect 17 to tell the truth? 18 A. No. Of course one wants to understand the 19 context of the interrogation more than strictly one 20 technique. Urging the suspect to tell the truth would not 21 be coercive in and of itself. 22 Q. Would you agree that during the course of an 23 interrogation, law enforcement is entitled to lie to a 24 suspect? 25 A. Well, I guess it depends on what you mean by 26 "entitled to lie." It's certainly legally permissible for 27 law enforcement to lie to a suspect about the evidence so 28 long as their lies to the suspect do not imply a threat or Peterson & Associates Court Reporting, Inc. 149 1 promise or any other kind of coercive inducement. 2 So it's not, per se, a coercive technique. It 3 is a permissible technique. I'm not sure what you mean by 4 entitled. 5 Q. Do you currently do teaching methods of 6 interrogation? 7 A. I teach a class called interrogation confession 8 in the law to the undergraduates, but UC Irvine is a 9 liberal arts college and university and so I don't 10 actually train them how to go out and interrogate, 11 although sometimes in the course I do assign the Reid 12 interrogation training manual so they are taught 13 interrogation training techniques from a liberal arts 14 perspective. 15 I also occasionally go around the union 16 training interrogators how to interrogate or not to 17 interrogate. 18 Q. Why do you assign the Reid manual? 19 A. Because I want the students to get it from the 20 horse's mouth. The Reed technique is the primary 21 technique of interrogation in the country. The Reed 22 school of interrogation trains thousands of interrogators 23 across the country. The Reed interrogation manual has 24 been referred to as the Bible of interrogation. 25 I have assigned other interrogation manuals, 26 but the point is that if they want to see how police are 27 being trained, this is as good a source as any other. 28 It's not because I agree with its conclusions or endorse Peterson & Associates Court Reporting, Inc. 150 1 it. 2 Q. Have you at any time been asked by the Reed 3 Institute -- what's their name? 4 A. The Reed School of Interviewing and 5 Interrogation. 6 Q. Have you been asked by the Reed school to be 7 one of their instructors? 8 A. No. 9 Q. Have you ever been asked by P.O.S.T. to teach 10 any courses on interrogation? 11 A. No. 12 Q. Do you know what P.O.S.T. is? 13 A. Yes. It's the organization that certifies 14 police training in California. It's Police Officers 15 Standards Training. I'm not sure if that's what it stands 16 for. 17 Q. Peace Officers Standards and Training. 18 A. Yes. 19 Q. You indicated that you reviewed the reports of 20 Patrick Flood and Joel Carry? 21 A. Correct. I don't think I brought them, but I 22 reviewed them. 23 Q. Who was it who asked you to review them? 24 A. I think it was Mr. Geile 25 Q. Were you given any task or instruction when you 26 were provided these reports? 27 A. No. I was just provided the reports. 28 Q. Did you provide any feedback to Mr. Geile or Peterson & Associates Court Reporting, Inc. 151 1 any other plaintiff's attorney regarding the information 2 in those two reports? 3 A. No. 4 Q. Let's take them one at a time. With regard to 5 the report by Patrick Flood, do you have any opinion 6 regarding that report that you can express to me today? 7 A. If I recall correctly, he expresses the opinion 8 that nothing McDonough did was improper and nothing was 9 coercive or shocking to the conscience or improper in 10 those interrogations, but it would be easier to know what 11 he said if I had the report in front of me. 12 If that's what he said, I would disagree with 13 the conclusions. 14 Q. You would disagree with the conclusions based 15 on the information that's set forth in your November 30th, 16 2002 report? 17 A. Correct, and all the materials that I've 18 reviewed. 19 Q. Would that include the review of Mr. Buckley's 20 report? 21 A. I guess, strictly speaking, as a logical 22 matter, that is one of the materials I reviewed so it's 23 part of all the materials I've reviewed. 24 Detective -- Mr. Buckley, I disagree with parts 25 of Mr. Buckley's report, so I don't think that 26 Mr. Buckley's report supports my conclusions. I just 27 disagree with it. 28 Q. When you indicate that you disagreed with parts Peterson & Associates Court Reporting, Inc. 152 1 of Mr. Buckley's report, were there parts of it that you 2 then agreed with? 3 A. There might be parts that I agree with. I 4 haven't thought about that. 5 The report that Mr. Buckley makes begins with a 6 series of general statements before laying out the 7 opinions that are expressed. And I disagree with the 8 opinions and it may be I agree with some of the general 9 statements. I have to go through the report to know, but 10 I disagree with the conclusions obviously of Mr. Buckley's 11 report. 12 Q. But as you sit here today, based on what you 13 just told me, you can't say that you disagree with 14 Mr. Buckley's report in its entirety? 15 A. That's correct, although it is possible. 16 Q. Was there anything in Mr. Flood's report that 17 you can recall that you agreed with? 18 A. No, I can't. 19 Q. Do you have an understanding of what he was 20 referring to when he was talking about any actions 21 shocking the conscience? 22 A. I'm familiar with the shocking the conscience 23 standard in American law and the Roachen case where they 24 pump the stomach of somebody in a hospital. If I recall 25 correctly, there's actually a 1959 interrogation case, 26 Span versus New York. Shocking the conscience language 27 was used, though not referenced by Mr. Flood. I may be 28 wrong. Peterson & Associates Court Reporting, Inc. 153 1 But if I recall Mr. Flood's report, he 2 mentions -- again, if I'm wrong, correct me -- the 3 shocking the conscience standard reference refers to the 4 intentional infliction or intentional commission of a 5 wrong upon a victim or a suspect or a defendant. 6 I don't know whether that is legally accurate 7 or inaccurate -- I don't know whether I'm accurately 8 remembering his report. I don't know if that's legally 9 accurate or not as a standard. 10 Q. With regard to Mr. Cary's report, do you have 11 any opinion regarding that report that you can express for 12 me today? 13 A. I would have to refresh my recollection. What 14 I recall generally from that report is that he expressed a 15 series of legal conclusions that had to do with the 16 interrogations not being coercive or improper or the 17 statements being voluntary, but I don't recall it well 18 enough to make any statements about it. 19 Q. Have you had any conversations with any of the 20 plaintiff's attorneys other than Mr. Silverman? 21 A. I've had conversations with Mr. Geile and I've 22 had conversations with Mr. Arnell and Mr. Francavilla and 23 this morning with Mr. Taylor. 24 Q. What did you talk about with Mr. Taylor this 25 morning? 26 A. He introduced himself, and then I believe he 27 said that I would be asked some questions probably about 28 what occurred during the second portion of Treadway's Peterson & Associates Court Reporting, Inc. 154 1 interrogation, and I think he asked me whether I had read 2 some of the depositions of the defendants, and I told him 3 I didn't think they were available -- not the 4 defendants -- depositions of Treadway, Crowe and Houser, 5 the criminal defendants who are not the current 6 defendants, but the plaintiffs. 7 Q. Is this something you anticipate doing? 8 A. Yes, I would anticipate doing that. Of course, 9 I can only read the material that is provided to me, so if 10 it were not provided to me, I would not read it. I 11 anticipate it will be provided and I will read it. 12 Q. In addition to the depositions of 13 Michael Crowe, Joshua Treadway and Aaron Houser, would you 14 anticipate reading any other depositions? 15 A. Not unless plaintiff's counsel felt it 16 necessary for me to read the depositions of Claytor, 17 McDonough, Wrisley or any of the criminalists or forensic 18 scientists. 19 I never had a conversation with them about 20 this, but I assume they do not feel that's necessary and 21 so I will not be provided those unless that changes. 22 Q. So the depositions of any of the officers, 23 that was not something that you asked for or felt that you 24 needed; correct? 25 A. Correct, and was not even aware that there were 26 depositions of these officers until I read 27 Gregg McCrary's report and saw that he was citing things 28 from their depositions. I didn't even know the sequence Peterson & Associates Court Reporting, Inc. 155 1 of depositions. I didn't realize he had been deposed 2 before me. 3 Q. Is McCrary's report the only report that you 4 saw citations to any officer deposition in? 5 A. We could find out by looking at the reports. 6 There may have been some citations in Weck's report to 7 some of those depositions. It may have been to 8 depositions -- Weck's report may have referred to 9 depositions of the forensic scientists. I just don't 10 recall. 11 I do recall specifically McCrary's report 12 citing depositions of some of the officers, but I don't 13 recall whether the other reports did. I think Weck's did, 14 but I'm not sure. 15 Q. So at this point in time, the only other 16 additional work that you would anticipate doing or being 17 asked to do would be to read the depositions of the three 18 boys? 19 A. No. I anticipate that I will also go through 20 all 45 hours of the interrogations of the three plaintiffs 21 one more time and that I will also -- by "work," I will 22 spend more time consulting with attorneys. 23 Q. The purpose of going through the 45 hours of 24 interrogation tapes would be to supplement your report? 25 A. No. 26 Q. Prepare a new report? 27 A. No. 28 Q. What would the purpose be? Peterson & Associates Court Reporting, Inc. 156 1 A. The purpose would be to identify specific 2 places where everything that I say occurs occurs. Not 3 only by page -- 4 Q. Is there some reason you didn't do that 5 initially? 6 A. I wasn't asked to do it initially. 7 Q. Is this something they have since asked you to 8 do? 9 A. Yeah, I've been asked to eventually go through 10 that. Video syncronization, pick out the most important 11 aspects of the interrogations and where they occur. 12 Q. Basically to find the references in the 13 transcripts to what you have in your report? 14 A. I think it's more than that. I think it's to 15 identify all the major techniques where the rapport 16 building occurs, where the lies occur, where the threats 17 occur, where the promises occur, where you can see the 18 effect of the suggestions from one interrogator on one 19 defendant to essentially diagram the major elements or 20 techniques in the interrogation. It would go beyond what 21 is described in the report and then to provide specific 22 page and line references. 23 Q. When were you asked to do this additional 24 review of the tapes and generate the citations to the 25 record? 26 A. To diagram the interrogation. It came up in 27 conversation with Mr. Silverman some time ago. Last 28 Sunday, I was asked specifically to do it. Peterson & Associates Court Reporting, Inc. 157 1 Q. Other than not being asked to do it when you 2 generated your initial report, is there any reason why it 3 could not have been done at that time? 4 A. Well, that exercise and the report are two very 5 different exercises. If what you're asking, is there any 6 reason why I couldn't put page and line citation for each 7 of the insertions I make about the interrogations, no. I 8 wasn't asked. I thought it was unnecessary for that 9 exercise. 10 This has been an immensely time consuming 11 activity. I'm cognizant of the fact my time is very 12 expensive and there's no reason to expend unnecessary 13 time. Because I wasn't asked, I didn't think it was 14 necessary. 15 The other exercise is quite different. It's 16 much broader. 17 Q. Was it also explained to you that we would have 18 the right to redepose you with regard to any additional 19 work you do on this case? 20 A. Yes. 21 Q. Do you have any record of how much time thus 22 far you've spent on this case? 23 A. I have recorded the time that I've spent on 24 this case. It's all in my materials. I keep notes about 25 all the time I spend. Periodically, I centralize those. 26 I think I did that in November, and then I just 27 got scattered notes for the time I've spent since then, so 28 I don't have a precise figure for you. I would estimate Peterson & Associates Court Reporting, Inc. 158 1 around 100 hours so far, possibly less, possibly more. 2 Q. But when you say possibly less or more, are we 3 talking about a difference of maybe 10 hours either way? 4 A. That would be my estimate. It could be 20 5 hours either way. 6 Q. You keep billing records of some type? 7 A. Correct. 8 Q. The billing records, they've been made a part 9 of your expert witness file; is that correct? 10 A. When you say they were made part of my expert 11 witness file, I'm not sure what you mean. 12 Q. The file you would keep on this case in terms 13 of the work that you've performed, would you also keep 14 your billing records with that file? 15 A. Or separately, yes, but I would keep records. 16 Q. Do you know what percentage of your income is 17 derived from expert witness services? 18 A. It varies. The income I receive as a 19 consultant varies, and I presume you mean income received 20 as a consultant and/or expert witness not just as an 21 expert witness because there's cases I'm not designated as 22 an expert witness. 23 For clarification, do you mean -- 24 Q. Consultant and expert. 25 A. I think in recent years it's varied from a 26 third to two-thirds, maybe even as high as three-quarters 27 of my income. I have to go back and check precisely, but 28 it does vary. Peterson & Associates Court Reporting, Inc. 159 1 Q. With regard to the 100 hours that you've spent 2 thus far in this case, is that above what you usually 3 spend on a case, somewhere consistent with what you spend 4 on a case, or less than what you usually spend on a case? 5 A. First of all, I said it could be 80 hours, it 6 could be 75. I'm estimating it's 100. First of all, most 7 cases that I get involved in are criminal cases and so I 8 usually spend far less time on the case. 9 There are cases where I travel to testify and 10 it may be that I spend a significant amount of time, 20, 11 40 hours on the case because of travel and testimony. 12 This is probably one of the most time consuming 13 complicated cases I've worked on. It's highly untypical I 14 would spend that much time on a case. 15 MR. WAGGONER: The 75 to 120 hours that you're 16 estimating you have spent, is that just on the civil case 17 or does that include the time you previously spent on the 18 criminal case? 19 THE WITNESS: This would just be the civil 20 case, 45 hours which were working with the tapes -- it may 21 have been a little bit more than 45 hours. 22 BY MS. FIELD: 23 Q. When you were reviewing the tapes, did you 24 follow with the transcript as you were looking at the 25 tapes? 26 A. Correct. 27 Q. You said you made notes in the margins? 28 A. Correct. Peterson & Associates Court Reporting, Inc. 160 1 Q. Did you find you had to turn on and off the 2 VCR? 3 A. Occasionally. That's why I said more than 45 4 hours. On occasion where there's dead space, I forwarded 5 through the dead space. 6 Q. During your review of the tapes, you did not 7 generate for yourself any type of diagram of who was 8 interrogating which boy and for what amount of time? 9 A. No, I did not. Of course it was typically on 10 the transcript who was interrogating them, but it wasn't 11 how much time. 12 Q. With regards to the notes that you made in the 13 margins of the transcripts, in your estimation, did you 14 take a lot of notes? Are we going to find them on every 15 other page, every ten pages? 16 A. I would say every ten pages is more likely. 17 Possibly even less than that. I wouldn't say I took a lot 18 of notes. 19 The places where I recall at this moment taking 20 a lot of notes were particularly in the Michael Crowe 21 interrogation because what we see in the second part of 22 the Michael Crowe interrogation, the second day, there are 23 a lot of places in that interrogation where he cries, he's 24 visibly distressed, he hits his head against the wall, 25 upright fetal position. He shrieks, he's crying out, 26 "God, why are they doing this? Why are they doing that?" 27 All of that is not represented on the 28 transcript itself, so I remember furiously scribbling and Peterson & Associates Court Reporting, Inc. 161 1 stopping it to make sure that that transcript reflected 2 what I saw, particularly the crying that was not reflected 3 on the transcript. 4 Q. So you have a distinct recollection of 5 Michael Crowe being interrogated on two separate days? 6 A. Yes. 7 Q. The conduct that you just described occurred on 8 the second day? 9 A. It may have occurred on the first too, but I 10 think it was more pronounced on the second. 11 Q. With regard to the second day what, if 12 anything, can you tell me Detective McDonough did that, in 13 your opinion, was coercive? 14 A. The second day of Michael Crowe's 15 interrogation -- unfortunately, my notes do not indicate 16 in Michael's interrogation -- do not indicate who said 17 what so I would have to go back through the interrogation 18 and parse out McDonough's portion to answer your question. 19 Q. So you do have a recollection that McDonough 20 was involved in the second day of Michael Crowe's 21 interrogation? 22 A. I believe he was unless I'm mistaken. 23 Q. Do you generate any training material that is 24 circulated on a regular basis to law enforcement agencies 25 in California as training on interrogation? 26 A. Not to my knowledge, no. 27 Q. Do you have any opinion with regards to whether 28 or not a law enforcement officer can use a device like a Peterson & Associates Court Reporting, Inc. 162 1 polygraph during the course of an interrogation? 2 A. The polygraph is frequently used during an 3 interrogation and it is legally permissible to be used 4 during an interrogation. 5 The polygraph, in my opinion, is primarily, at 6 least in the interrogation, an interrogation technique. 7 It's not a truth verification instrument. 8 It's typically used when the accusations and 9 the presentation of evidence, whether true or false 10 evidence, will not break down the suspect's denials and 11 the suspect is offered or told they're being offered the 12 opportunity to clear themselves, and if they clear 13 themselves, they can go home. 14 Then they take the polygraph and are told they 15 fail the polygraph and that's used as an evidence ploy to 16 argue that they have to come clean and tell the truth. 17 That interrogation technique is not illegal or inherently 18 coercive. 19 Q. So law enforcement can use a polygraph to 20 interrogate a suspect and advise the suspect they failed 21 it and now they need to come clean? 22 A. By itself, it's not inherently permissible or 23 coercive. The courts have decided that's a valid 24 technique. 25 Q. Do you have any information to lead you to 26 believe that the CVSA has been treated in any other 27 fashion other than what you've just described for the 28 polygraph? Peterson & Associates Court Reporting, Inc. 163 1 A. No. The CVSA is really an offshoot of the 2 polygraph. 3 Q. So is a polygraph a pre-rigged interrogation 4 technique invoking the authority and supposed 5 infallibility of modern science and computer technology? 6 A. It typically is. The interrogation is 7 typically a stressful event and these interrogations were 8 intensely stress inducing, and polygraphs, even if you 9 believe the theory espoused by their supporters 10 are not supposed to be used where the person who is being 11 tested is tested under extreme conditions of stress in the 12 context of the interrogation. 13 Q. Is it your opinion an interrogation has to be 14 completely stress free to be noncoercive? 15 A. No. There's some amount of stress that is 16 legally permissible in non or subcoercive. 17 Q. With regard to the list of cases that 18 Mr. Waggoner went over this morning with you involving 19 your opinions on various confessions, do you recall how 20 many of those involved the use of some type of device like 21 a polygraph or a CVSA? 22 A. No, I don't recall the specific number. I 23 can't tell you what number it is, but many of the cases 24 that I've been involved in have involved a polygraph and a 25 few have involved the computer voice stress analyzer. 26 Q. If you were to look at that list of cases 27 again, would you be able to identify the ones that 28 involved the CVSA? Peterson & Associates Court Reporting, Inc. 164 1 A. I could certainly try. I know that -- I can 2 tell you right off the top of my head, one of those cases 3 did involve the computer voice stress analyzer, and that 4 would be the case of Michael Green. I need to see that 5 list again. 6 Q. If you can give me the name and number on the 7 list. 8 A. No. 25, State of California versus Michael 9 Green. I recall that there was a computer voice stress 10 analyzer in that case. 11 Q. Do you recall which agency utilized it? 12 A. No, only that it was in Riverside County. I 13 don't recall which agency in Riverside County used it. As 14 I look at these cases, I can't off the top of my head 15 recall any other cases that used the computer voice stress 16 analyzer by name, although I'm sure there have been at 17 least a few others. 18 Q. But the Green case is the only one that you can 19 recall with any certainty that involved the use of the 20 CVSA? 21 A. Correct. 22 Q. Of the 74 cases that are listed on here, do you 23 have any estimate in terms of how many involve the use of 24 a polygraph? 25 A. I would just have to estimate. I would 26 probably say a quarter to a half. It's a very common 27 technique in the cases I've been involved in. Maybe as 28 low as 20 percent, but 20 percent to 50 percent. Peterson & Associates Court Reporting, Inc. 165 1 Q. In any of those cases, your courtroom testimony 2 or your testimony at any hearing, it did not address the 3 validity of the use of the polygraph, did it? 4 A. I can't recall a specific case in which I 5 talked about the validity of the polygraph. Typically, 6 I'm expressly told not to mention the polygraph was used. 7 It's completely excised from the case, presumably from a 8 case that would be prejudicial to a jury in a criminal 9 case. 10 I think that I may have discussed it one or two 11 times with the consent of both parties, but I can't recall 12 specifically. 13 Q. That would have been where the two parties had 14 stipulated to the results of the polygraph? 15 A. Where the two parties, and it may not be two 16 parties -- where the two parties consented to the 17 discussion of the polygraph at trial. 18 For example, if the defendant took the stand, 19 he might or she might want to discuss the polygraph and 20 its effect on leading them to feel or being coerced in 21 making a false confession. 22 If the judge permitted the defense to mention 23 it, the judge may have permitted me to mention it, but 24 that's not typically the way it goes. 25 Q. Of the 74 cases that are listed on there, from 26 my review of it, it looks like only one involved a minor; 27 is that correct? 28 A. I believe that is correct, No. 70, State of Peterson & Associates Court Reporting, Inc. 166 1 California versus Marcus W. 2 Q. Do you recall how soon after you viewed the 3 tapes and read the transcripts you generated your 4 November 30th report? 5 A. I recall beginning my review of those tapes and 6 transcripts somewhere around the 5th, and I think it took 7 a week or two weeks for me to get through them, so it 8 would have been shortly thereafter. 9 Q. Was the report generated after you generated 10 the notes on the interrogations that you referred to 11 during this deposition? 12 A. I have to make a distinction. The answer is 13 yes and no. Here is a different set of notes. I have one 14 set of notes on the Treadway interrogation which was the 15 lengthiest. 16 Q. Which one? 17 A. It's entitled on top Treadway interrogation. 18 And then it says 1/27/98 and this is a a six-page 19 document, unnumbered, and halfway through Page 4, it says 20 February 10th, 1998, and these are notes on both of the 21 interrogations. 22 These notes were prepared by me as I was going 23 back over the Treadway transcript while I was preparing 24 the report. These notes were prepared by me in 25 November -- presumably late November of last year. 26 In preparation for today's testimony, I 27 prepared four sets of shorter notes. One set of notes is 28 three pages long and this is on the Michael Crowe Peterson & Associates Court Reporting, Inc. 167 1 interrogation. 2 Another set is on the notes of the 3 interrogation of Joshua Treadway, January 27/28. This is 4 three pages long. 5 Another set of notes is on the Joshua Treadway 6 interrogation of February 10th. It is two pages long. 7 There's a portion at the top of the second page 8 which is scratched out which doesn't refer to this 9 interrogation. It's a duplicate of the Crowe 10 interrogation, but I scratched that page out and wrote on 11 the bottom of it. 12 Then, finally, there is four pages of notes 13 that I prepared on the Aaron Houser interrogation entitled 14 Aaron Houser interrogation, February 11th. All four sets 15 of these were prepared yesterday. 16 Q. What, if anything, did you review to prepare 17 those notes? 18 A. The report. 19 Q. Just the report? 20 A. Just the report. I may also have reviewed the 21 notes in my file from conversations that I had with 22 plaintiff's counsel and the trial brief prepared by, I 23 presume, Mr. Silverman's office. 24 Q. Since you prepared those notes just yesterday, 25 can you tell me, did you also look at notes in the file? 26 A. I looked through my file, and what I don't 27 recall is whether I took anything from that file 28 specifically that went here, but I do remember looking Peterson & Associates Court Reporting, Inc. 168 1 through my file and my various notes and that most of what 2 is in these comes directly from my November 30th report. 3 Q. Did you have Mr. Silverman's trial brief when 4 you prepared that report? 5 A. Yes. 6 Q. To what extent did you rely upon the 7 information or the facts as set forth in that trial brief 8 when you prepared that report? 9 A. Now, you're pointing to the supplement, 10 December 31st, but I think you're talking about the 11 November 30th report. 12 Q. Yes. 13 A. I think my reliance on Mr. Silverman's brief 14 was minor in this report. The primary value of me to have 15 Mr. Silverman's brief is not what it says about the 16 interrogations since I studied those interrogations 17 intensively by reviewing the transcript -- reviewing the 18 tapes and reading the transcripts and then rereviewing the 19 transcripts since this is, after all, my area of 20 expertise. 21 But the surrounding case facts, what was going 22 on prior to the interrogations, what was going on after 23 the interrogations, how that's relevant to the likely -- 24 the factual innocence of the plaintiffs and the analysis 25 of why they're factually innocent and the analysis of 26 coercion. 27 Q. You, yourself, indicated before you can cite to 28 any portion of the transcript, you're going to have to Peterson & Associates Court Reporting, Inc. 169 1 review the tapes and the transcripts again; correct? 2 A. Yeah. To tell you page and line cites, I would 3 need to review the transcripts. To give you time cites, I 4 have to review the tapes. 5 Q. Was any draft of your report sent to any 6 plaintiff's attorney prior to sending the final? 7 A. No. Actually, I do think that an earlier draft 8 of this was sent to plaintiff's attorneys, the report on 9 Dr. Blum. 10 Q. Was it sent back to you with any revisions? 11 A. No, it was not sent back with any revisions. I 12 believe that I made some additions based on questions that 13 were posed to me, but there were no revisions. 14 Q. Were suggestions provided to you with regard to 15 information that should be placed in the supplemental 16 report regarding Blum? 17 A. No, not explicitly, but there was -- I believe 18 that when I first drafted this report, it was all about 19 Crowe, and that there were some issues related to 20 Dr. Blum's involvement raised with Treadway and Houser and 21 so I was asked the address those issues. I was not told 22 what to say. 23 No modifications were suggested or corrections, 24 anything of that sort. Only that the report was 25 incomplete and I didn't know that they wished to have 26 questions addressed with regard to Treadway and Houser. 27 Q. Regarding the CVSA, have you had any 28 conversations with any California law enforcement agencies Peterson & Associates Court Reporting, Inc. 170 1 regarding its use? 2 A. Not that I can recall. 3 Q. Have you taken the course offered by NITV to 4 become a certified CVSA operator? 5 A. No, I have not. 6 Q. Have you, yourself, conducted any research with 7 regards to the use of the CVSA? 8 A. It depends on what you mean by "research." 9 I've reviewed documents and analyses of the CVSA, but I 10 haven't written any papers where I've gathered data on it. 11 Q. What documents and analyses have you reviewed 12 regarding the CVSA? 13 A. There's a University of Minnesota psychology 14 professor who is the authority on defection, 15 Lykken, David. He's written what is regarded as the 16 authoritative book on lie detection, detection of 17 deception in psychology. It's called "A Tremor in the 18 Blood." The first edition came out in 1981. 19 I believe it did not mention the CVSA although 20 I think the psychological stress evaluator was a precursor 21 to the CVSA. 22 The second edition came out in 1998, has an 23 entire chapter on the CVSA, reviewing studies on the CVSA 24 and essentially concluding the CVSA is complete junk 25 science, which is the generally accepted finding in the 26 field. 27 Q. How do you know it's the generally accepted 28 finding? Peterson & Associates Court Reporting, Inc. 171 1 A. I've seen others refer to it in the field. 2 What I mean by "the field" is the field of similar 3 academic psychologists who study the detection of 4 deception. At least that's my understanding. I should 5 qualify that. 6 I believe I've reviewed training materials on 7 the CVSA in a couple of the cases that I've been involved 8 in as an expert witness or consultant, though not 9 recently. 10 Q. Do you have any understanding with regards to 11 how NITV represents that the computer voice stress 12 analyzer works? I mean in terms of mechanically how it 13 works. 14 A. If I've reviewed NITV materials in connection 15 with prior cases, I don't specifically remember. I don't 16 know whether the materials I reviewed were from NITV so I 17 can't tell you specifically how NITV represents the 18 computer voice stress analyzer. I am aware generally of 19 how proponents of the CVSA have represented it. 20 Q. What is your understanding? 21 A. That the CVSA purports to measure micro tremors 22 in the voice that are on a.m. or p.m. frequency. 23 MR. ARNELL: AM or FM? 24 THE WITNESS: AM or FM. Supposedly some of 25 the micro tremors, if you're telling the truth and if 26 you're lying, this computer voice stress analyzer produces 27 these printouts that look like Christmas trees, sometimes 28 blobs look like nothing but scribbles and that from that, Peterson & Associates Court Reporting, Inc. 172 1 in theory, the detective can infer whether or not the 2 subject is lying or telling the truth. 3 BY MS. FIELD: 4 Q. Have we exhausted your list of documents and 5 analyses that you've reviewed on the CVSA? 6 A. I believe so. I may have reviewed at some 7 point some academic studies that were about the polygraph 8 that also mentioned or involved the CVSA. 9 I reviewed a report in this case, Victor 10 Cisteros' report that discusses the CVSA. I've read many 11 newspaper articles about the CVSA, but that doesn't form 12 my opinion on the CVSA. 13 Q. You haven't actually talked to any California 14 law enforcement agency that actually uses the device in 15 real criminal interrogations with the threat of jeopardy; 16 correct? 17 A. I don't recall interviewing anybody who has 18 used it about their use of it, correct. 19 Q. Can you please tell me what your basis was for 20 making the statement in your report that Detective 21 McDonough pretended to be a neutral party. 22 A. You would have to tell me where I made that 23 statement. 24 Q. Page 5 of your report, the middle of the first 25 paragraph. 26 A. Based on the materials I reviewed, I came to 27 the conclusion that Detective McDonough's purpose was to 28 get a confession from Michael Crowe. Peterson & Associates Court Reporting, Inc. 173 1 His purpose was not to be a neutral party and 2 administer an exam to somehow decide Crowe was telling the 3 truth or not. The CVSA is an interrogation technique. 4 Its purpose was to manipulate or intimidate Michael Crowe 5 into confessing or it represented infallible scientific 6 evidence of his guilt. 7 Q. You haven't read Detective McDonough's 8 deposition; correct? 9 A. Correct. 10 Q. You haven't interviewed him; correct? 11 A. Correct. 12 Q. And as you sit here today, you can't say that 13 you know what was in his mind as he was talking with 14 Michael Crowe; is that correct? 15 A. Yeah. I can't presume obviously to read his 16 mind. I do recall a newspaper article written by John 17 Wilkens and possibly Mark Sauer in the San Diego 18 Union-Tribune that was just on the computer voice stress 19 analyzer, in which they had interviewed Detective 20 McDonough and he had made a comment to the effect it 21 doesn't matter what it is. If it was a spaghetti 22 strainer, you put it over your head. All I care is 23 whether you get the confession. That was not an interview 24 that I conducted of Detective McDonough. 25 Q. This is something you read in the newspaper? 26 A. Correct. 27 Q. Would it be fair to say that not everything 28 printed in the newspaper is true? Peterson & Associates Court Reporting, Inc. 174 1 A. Correct, and I never said it was true. I was 2 just trying to answer your question exhaustively. 3 I might also add, though, Mark Sauer and John 4 Wilkens did come to one of my classes last year, my 5 interrogation confession in the law class. They were 6 guest lecturers and John Wilkens did discuss in some depth 7 his interactions with Detective McDonough and the computer 8 voice stress analyzer before the entire class. 9 Q. Did they come there at your invitation? 10 A. Yes. 11 Q. Did you invite Detective McDonough to present a 12 rebuttal position? 13 A. No. I'm sorry for laughing. That actually 14 would make for a very interesting academic exercise. I 15 assume he would have said no. I hadn't thought about 16 that, but it would make for an interesting exercise. I 17 did not mean in any way to ridicule your suggestion. 18 MR. LOEDING: I think your assumption is 19 mistaken based upon what I know of Detective McDonough. 20 BY MS. FIELD: 21 Q. When Detective McDonough interviewed 22 Michael Crowe, you don't have any information with regards 23 to what information Detective McDonough knew about the 24 crime up to that point? 25 A. Correct. 26 Q. So, basically, your statement with regards to 27 him pretending to be a neutral party was gleaned from 28 information that you got from a newspaper article? Peterson & Associates Court Reporting, Inc. 175 1 A. No. 2 MR. ARNELL: Misstates the testimony. 3 THE WITNESS: The computer voice stress 4 analyzer, like the polygraph, is an interrogation 5 technique. It's broadened not to verify the way the 6 technique is generally used, not to clarify whether the 7 suspect is telling the truth but to set them up for 8 failure and then invoke the supposed authority of the 9 scientific instrument as an evidence ploy when there is no 10 real evidence as a false evidence ploy and then try to 11 manipulate the suspect into confessing by convincing him 12 he has no choice but to agree with the scientific 13 conclusion that all the evidence shows they're caught. 14 What I observed in the interrogation 15 transcript, tapes and read in the transcript and read 16 about the case in the trial brief and other documents that 17 I've reviewed is completely consistent with that. 18 It's my opinion that McDonough is using this 19 interrogation technique, which is what the CVSA really is, 20 an interrogation, which is the only context in which I've 21 ever seen it used to elicit the confession. This is part 22 of the ruse. 23 BY MS. FIELD: 24 Q. Given you haven't read his deposition and you 25 haven't talked to him about his understanding and use and 26 belief in the CVSA, other than what you read in a 27 newspaper article, do you have any information to lead you 28 to believe that he does not hold the belief that the CVSA Peterson & Associates Court Reporting, Inc. 176 1 works? 2 A. Well, I would say that I don't know what he 3 believes other than what John Wilkens has stated, so I 4 don't know what his personal beliefs are and what 5 John Wilkens wrote in that newspaper article. 6 But I think that's irrelevant to the 7 technique. The technique, if he was using the technique 8 in the way that it's typically used, then what I've said 9 here is accurate. 10 Q. You've testified previously that the technique 11 used and you pointed that out with regards to a polygraph 12 is an acceptable law enforcement technique during an 13 interrogation? 14 A. Correct. It's accepted by the courts. 15 Q. Do you have any information or reason to 16 believe that Detective McDonough was present during the 17 portion of Michael Crowe's interrogation where he wrote 18 the letter to Stephanie? 19 A. I have to go back and look at that portion of 20 the interrogation transcript to see if he was present. I 21 know in some of those interrogations, some of the 22 detectives would come and go. I don't recall the specific 23 portion of the interrogation in which he was present. 24 Q. With regard to the interrogation of 25 Michael Crowe, what threats, if any, did Detective 26 McDonough make to Michael Crowe? 27 A. My notes don't indicate who said what so I 28 could tell you what threats were made to Michael Crowe, Peterson & Associates Court Reporting, Inc. 177 1 but I can't tell you if Detective McDonough made those 2 unless I looked at the transcript. 3 Q. Are those the ones you've already gone over 4 with regard to leniency, threat of homosexual rape, going 5 to prison? 6 A. The two paths. It's all enumerated in the 7 report. 8 Q. Given you do not have any citations to any 9 portion of the transcripts, if I ask you that same 10 question with regards to Aaron Houser and Joshua Treadway, 11 what threats, if any, did Detective McDonough make to 12 either of them, would your answer be the same? 13 A. Not necessarily. I would have to look at my 14 notes to see whether or not I identified them in the 15 notes, the Treadway and Houser interrogations, whether 16 Detective McDonough was involved in the statements. 17 I'm looking at my short notes for the 27th and 18 28th, the interrogation of Joshua Treadway. I do not see 19 where they specifically indicate that McDonough made a 20 threat. Just give me one moment. 21 My notes of that interrogation do not indicate 22 whether McDonough made any threats. 23 Q. Which one was that? 24 A. That was the first interrogation of 25 Joshua Treadway. 26 The second interrogation of Joshua Treadway, I 27 think we went over this in the question by Mr. Waggoner. 28 The interrogation of Aaron Houser, I think, is different. Peterson & Associates Court Reporting, Inc. 178 1 I'm not talking about the 27th, but I'm talking about the 2 11th. 3 What I recall and I have this written down, 4 McDonough did make specific threats about Houser -- I 5 think this was after Houser tried to invoke his Miranda 6 rights and Claytor left the room. 7 I have in my notes McDonough threatens Houser 8 with harsher punishment, suggests Houser will be treated 9 more punitively and held for a longer time if he continued 10 to deny the accusations than if he remorsefully admitted 11 them, tells Houser the suffering he will be putting his 12 mother through by failing to acknowledge he committed this 13 murder. I don't know whether Claytor left the room when 14 McDonough made those statements. 15 Hold on. There may be more. Later in the 16 interrogation, I have in my notes, he had left and then 17 Detective McDonough returns. In my notes Claytor and 18 McDonough issue additional threats. It doesn't 19 specifically say there. 20 Then I do have some specific notes, McDonough 21 repeats the threat that by forcing the detectives and the 22 system to prove Houser's guilt, he will receive more 23 punishment. 24 McDonough repeats the promise of leniency, that 25 by admitting to the murder, Houser could mitigate his 26 culpability and be treated more leniently by the system, 27 blatently threatening Houser. 28 McDonough tells Houser Claytor had given him a Peterson & Associates Court Reporting, Inc. 179 1 way out of the high end of the low or mitigating end of 2 the punishment scale by admitting to participating in the 3 murder, but once the detectives were done questioning 4 Houser, the case against him would be set in stone. 5 Unfortunately, I do not have any page cites for these. 6 Q. Those passages you just read from your notes, 7 do they reflect actual words that were spoken by McDonough 8 or did you take other words and paraphrase them? 9 A. They're paraphrases. I think they capture what 10 McDonough is saying accurately in terms of the message and 11 substance of what he's saying. They're not verbatim. 12 Q. So you took his words from the transcript and 13 paraphrased it into those words on your note? 14 A. Right. These are my notes describing what I 15 see going on in that interrogation. 16 Q. Is it your recollection that this occurred 17 during the portion of the interrogation where Detective 18 McDonough is asking Aaron what am I supposed to tell your 19 father? 20 A. I don't recall what portion that would be. I 21 would have to go through and look at the interrogation. I 22 recall that most of these threats occurred toward the end 23 of the interrogation, but I don't know specifically when 24 that occurred in the interrogation. 25 Q. What was it that you saw in Aaron Houser's 26 interrogation that would lead you to believe he was 27 terrified? 28 A. I thought that at some point, Aaron Houser Peterson & Associates Court Reporting, Inc. 180 1 actually told me that he was scared. My notes say that, 2 nervous and shaking, Houser responds by telling Detective 3 McDonough he is terrified and stressed out in the face of 4 these accusations. 5 Prior to that, McDonough told Houser that Crowe 6 and Treadway had betrayed him, that they told authorities 7 he helped kill Stephanie Crowe. If they would put him on 8 a computerized stress analyzer, he would bomb it. 9 Q. In reviewing the tapes of Aaron Houser's 10 February 11th interrogation, did you also observe him 11 laying on the floor reading a book? 12 A. I may have. I don't recall specifically. 13 Q. But you would agree that at no time during the 14 February 11th interrogation of Aaron Houser did he confess 15 to any crime? 16 A. Correct. 17 Q. When is it that you plan to do the additional 18 work that you have been requested to do by Mr. Silverman 19 on this case? 20 A. I really don't know. Probably sometime in 21 March. 22 Q. Were you given a deadline? 23 A. I think by the middle of April. 24 Q. Were you requested to generate an additional 25 written work product from the second review? 26 A. Yes. At least that was my understanding. 27 Q. When were you first contacted by any 28 plaintiff's attorney regarding serving as an expert Peterson & Associates Court Reporting, Inc. 181 1 witness in this case? 2 A. I don't recall specifically. My best estimate 3 would be sometime around maybe September, maybe sometime 4 in late summer, possibly earlier. I was contacted by 5 Mr. Silverman. 6 Q. Did he tell you how he had acquired your name? 7 A. No, I don't recall that he told me. 8 Q. Do you advertise your expert witness services 9 anywhere, a web site or any of the expert witness 10 directories? 11 A. No. 12 Q. Are you a tenured professor at UC Irvine? 13 A. Yes. 14 Q. When did you become tenured? 15 A. July of 2001. 16 Q. Your position is as an associate professor? 17 A. Correct. 18 Q. Is there some type of pecking order in terms 19 of -- I assume there's a department head and the other 20 instructors fall somewhere under the department head? 21 A. There's a department chair, and in my 22 department, the department chair is also an associate 23 professor. In general, there are three levels. There's 24 the assistant professor, which is a professor, but 25 typically within your first seven years, you're given -- 26 if you get tenure, you're promoted, have lifetime job 27 security and you become an associate professor. 28 Most people stay in the ranks of associate Peterson & Associates Court Reporting, Inc. 182 1 professor around seven years and then they make the 2 promotion to full professor. Those are really the three 3 levels. Some professors go on to assume administrative 4 positions or dean, but that has nothing to do with how far 5 along the ranks of the professorship one has progressed. 6 Q. So in terms of the pecking order, you fall in 7 the middle? 8 A. That might be one way of putting it. Yeah, I'm 9 at the second of the three stages, correct. 10 Q. What do you need to do or accomplish before you 11 become a full professor? 12 A. It's just a matter of time. As long as we're 13 productive in terms of one's research and it's well 14 received, one typically promotes through the system. 15 Probably in three or four years, my file will go up to -- 16 I'll be -- my file will be put up for full professor and 17 I'll get that promotion. It's possible I'll get it 18 sooner. 19 Q. Is it your hope and desire to stay at UC 20 Irvine or within the UC system? 21 A. I think it's a very good system. It's my hope 22 and desire to stay at Irvine. It's a very good job, but 23 it's possible that I may leave for another academic job if 24 that opportunity becomes available at some point. 25 MS. FIELD: Thank you. I have nothing 26 further. 27 /// 28 /// Peterson & Associates Court Reporting, Inc. 183 1 EXAMINATION 2 BY MS. MISERLIS: 3 Q. We met earlier. As you know, I represent NITV 4 which manufactures the CVSA. 5 On Page 5 of your November report, about midway 6 through the first paragraph, you indicate, quote, "In 7 fact, the computer voice stress analyzer was not a true 8 verification instrument." 9 Can you tell me what you base that opinion on. 10 A. I base that opinion on everything I've read, 11 all the academic studies I've read about the computer 12 voice stress analyzer, both in the context of -- well, the 13 context of the interrogation as well as just descriptions 14 of the computer voice analyzer. 15 The David Lykken book I referenced; the 16 computer voice stress analyzer has been written about in 17 academic articles, I believe, as one of many forms of lie 18 detection. This is the general understanding: it's not a 19 truth verification instrument. 20 Q. Do you sort of group the CVSA with those 21 other -- what did you call them -- investigative 22 techniques? 23 A. Lie detection. They're essentially lie 24 detection technologies. 25 Q. In terms of your opinion it's not a truth 26 verification instrument, do you categorize all those, 27 quote, unquote, "lie detector technologies" in that 28 opinion? Do you have a different opinion for different Peterson & Associates Court Reporting, Inc. 184 1 ones? 2 A. In the context of interrogation, they are not 3 about truth verification. Interrogation only occurs when 4 you presume the guilt of a suspect. The goal is to get a 5 confession, not the truth necessarily, although ideally 6 the confession and truth would be the same thing. 7 In the context of an investigation 8 interrogation, it would contradict the goal of the 9 interrogation to be anything other than a rig technique. 10 I've never seen the computer voice stress 11 analyzer used outside the context of interrogation. It's 12 new technology, not as common as the polygraph. 13 I have seen the polygraph used outside of 14 interrogation and I have talked over the years to many 15 police officers about the polygraph, some of whom actually 16 believe the polygraph is about the detection of deception 17 and it works for that purpose, many of whom do not. 18 Many of them believe it's an interrogation 19 technique. The polygraph, I have seen it used outside the 20 context of interrogation. I have seen it used for truth 21 verification. I have talked to police officers who have 22 told me they believe it is a truth verification 23 instrument. I have never seen any of that or heard any of 24 that with regard to the computer voice stress analyzer. 25 Q. Is it your opinion that, when used in the 26 context of an interrogation, all of those devices have the 27 same effect? 28 A. Not necessarily. The computer voice stress Peterson & Associates Court Reporting, Inc. 185 1 analyzer may have a more powerful effect on the polygraph. 2 What I've seen on several occasions is the 3 computer voice stress analyzer, the person who is using it 4 says that this was developed at Johns Hopkins laboratory 5 and applied physics department. This is what the 6 department of defense uses, is used to catch spies, 7 cutting edge. Nobody can fool this machine. I've seen 8 stronger representations about the infallibility and the 9 cutting edge sophistication of the computer voice stress 10 analyzer than I've seen about the traditional polygraph. 11 That doesn't mean it's any more influential in 12 moving a suspect from denial to admission. It may be. I 13 don't know. It depends on the case. 14 Q. Where have you seen those representations? 15 A. In cases that I've worked on or read about. 16 The Michael Green case that I referred to earlier I think 17 is one such case, but I don't recall the other cases. No. 18 25 on the list. 19 Q. You said the author was L-y-k-k-e-a? 20 A. L-y-k-k-e-n. 21 Q. Other than his book, what other publications 22 have you read regarding the CVSA? 23 A. I can't name them off the top of my head. I 24 think there are a few more articles that I've read that -- 25 see, I don't recall as I sit here today any article or any 26 other book that I've read just about the CVSA. 27 I have read a number of articles about the 28 polygraph which may have incorporated the CVSA, and of Peterson & Associates Court Reporting, Inc. 186 1 course I've read many articles about interrogation and 2 interrogation techniques and psychology interrogation 3 which may also mention CVSA, but I can't recall 4 specifically which ones would have mentioned it. It would 5 only have been briefly. There's no article that's the 6 central. 7 Q. So then is the Lykken book the only publication 8 that you've seen that dealt specifically with the CVSA? 9 A. That's the only publication that I've read 10 where it's been that prominently featured. It's an entire 11 chapter in the book that I can recall today. 12 As I mentioned, I think that book is regarded 13 academically as the authoritative book on the flaws -- 14 subtitle in the case, "Abuses of a Lie Detector." 15 Q. Do you recall as you sit here how that book 16 came to the conclusion as you indicated that the CVSA was 17 junk science? 18 A. Yes. My recollection is Lykken has -- he's a 19 very prominent individual, president of numerous 20 psychological societies. 21 My recollection is he reviewed the several 22 thousand studies that have been done on behavioral lie 23 detection, polygraphy and the studies also done on the 24 CVSA. 25 The book is a critique of the flawed theory of 26 behavioral lie detection with regard to polygraph, the 27 CVSA, as well as other forms of lie detection as well as 28 the flawed studies that are presented on behalf of these Peterson & Associates Court Reporting, Inc. 187 1 various forms of lie detection. 2 It's a thorough critique about both the theory 3 and the empirical study of the various lie detection 4 technologies. 5 Q. So Lykken doesn't actually conduct his own 6 studies, he just reviews studies? 7 A. I think he does conduct his own studies. I 8 don't know whether he's conducted studies about the 9 computer voice stress analyzer. I know he has conducted 10 specific studies of the polygraph -- various types of 11 polygraphs. 12 Q. You indicated that an interrogation only occurs 13 when it's presumed that the suspect is guilty? 14 A. Yes. 15 Q. What do you base that opinion on? 16 A. The way police are trained, and my observation, 17 others' observation and practice is that there's a 18 difference between an interview and an interrogation. You 19 interview somebody if there's a victim or a witness or 20 potential suspect in a non-accusatorial manner, typically 21 ask open-ended questions, nonsuggestive. The purpose is 22 to get the truth and to develop investigative leads and 23 try to put the bigger picture together. 24 That's very different than interrogation. 25 Interrogation is typically accusatorial and you only 26 interrogate a suspect, a suspect whose guilt you presume. 27 The reason they're very sophisticated, 28 psychologically manipulative and deceptive and sometimes Peterson & Associates Court Reporting, Inc. 188 1 coercive interrogation techniques is to bring to bear 2 pressure on the individual who you presume to be guilty to 3 overcome their anticipated denial and move them from that 4 denial to admission, to break down the resistance and 5 elicit the "I did it" statement in an accompanying 6 fashion. 7 That is in the interrogation training industry 8 as well as in the academic studies of interrogation 9 practice. That is the goal of interrogation: to move a 10 suspect from anticipated denial to admission and to elicit 11 incriminating statements. 12 The goal of interrogation is not necessarily to 13 get the truth. It's often said that if you can't -- 14 within police training and police culture, if you can't 15 get a confession, the next best thing is to get a bunch of 16 lies and, of course, the reason that is said is because a 17 bunch of lies might incriminate the suspect, which is 18 ultimately the goal of the interrogation, to incriminate 19 the suspect and hand over a case to the prosecution. 20 But to get back to the central part of your 21 question, you only interrogate somebody if you believe 22 they're guilty. It makes no sense to use the techniques 23 of interrogation unless you believe they're guilty. 24 Q. It is your opinion that in this case, the CVSA 25 was used with all three plaintiffs as part of an 26 interrogation? 27 A. Technique, correct, the purpose of which was to 28 get confessions from the three suspects. Peterson & Associates Court Reporting, Inc. 189 1 Q. How do you come to the conclusion it's used as 2 an interrogation versus an interview? 3 A. All of these individuals were interrogated. 4 Other interrogation techniques were used on them, and it's 5 clear that in these interrogations, the goal of the 6 interrogators, including McDonough, is to get confessions. 7 Q. How is that clear? 8 A. I watched 45 hours of tape. There are many 9 standard as well as some nonstandard interrogation 10 techniques in all of these interrogations, and the 11 structure of the interrogation follows the same structure 12 of most interrogations: a rapport building phase, an 13 accusatorial phase, attacking the suspect's denials, not 14 crediting their assertions of innocence, confronting them 15 with evidence, repeating the accusation, trying to 16 convince the suspect that they're caught and there's no 17 way out, offering inducements or motivators to suggest the 18 suspect will be better off if they admit to the crime 19 versus continue to hold to their denials. 20 The techniques are there of the interrogation 21 standards as well as nonstandard. The structure and logic 22 and goals of interrogation are there. In every way, all 23 three of these look like, in some ways, extreme examples, 24 but they look like interrogations and no one -- I can't -- 25 I don't believe anybody would dispute -- that any expert 26 would dispute that these are interrogations and the goal 27 is to get confessions. 28 Q. You're stating that specifically with regard to Peterson & Associates Court Reporting, Inc. 190 1 use of the CVSA with each of the plaintiffs; correct? 2 A. I was making -- I was answering your general 3 question. 4 Q. The specific question was, was it your opinion 5 that the CVSA was used as part of an interrogation of all 6 the plaintiffs? 7 A. Yes. 8 Q. What is the basis of that opinion? 9 A. The basis of the opinion that the CVSA was part 10 of an interrogation -- I'm not sure exactly what you're 11 looking for, but -- I don't know if to answer the question 12 by saying it's based on my general training, knowledge, 13 studies of interrogation. 14 It's based on the fact that the 45 hours that I 15 reviewed were classic interrogations. Whether it's to say 16 that it's based on my analysis and review of all the 17 materials in this case -- I think maybe that answers the 18 more specific question. 19 Q. With respect to the opinion that the computer 20 voice stress analyzer was not a truth verification 21 instrument, have you stated all of the bases for that 22 opinion? 23 A. Yes. 24 Q. Did you rely on consultation or reports of any 25 other experts in coming to that opinion? 26 A. I didn't consult with any experts on this case 27 in person. I did read the first day of Professor Ofshee's 28 testimony at the 707 hearing. I don't recall specifically Peterson & Associates Court Reporting, Inc. 191 1 whether he references the CVSA as an interrogation 2 technique. I believe he did, but I would have to go back 3 to make sure. 4 Of course I did talk to John Wilkens in one of 5 my classes who said he had interviewed -- 6 Q. Who is John Wilkens? 7 A. He's a journalist at the San Diego 8 Union-Tribune. I think he interviewed Detective McDonough 9 for a story. 10 Q. When did you first learn of him? 11 A. I don't know when I first learned of him. 12 Probably in 1998 or 1999. He and Mark Sauer did a 13 six-part series together on the Crowe case which I 14 assigned for some of my undergraduate classes. 15 The first time I met John Wilkens was in 16 November when he and Mark Sauer who I had met previously 17 came to give a talk to my class. That was the first time 18 I talked to John Wilkens. 19 Q. You indicated that he had written a six-part 20 series. What was that about? 21 A. It was a six-part series in the San Diego 22 Union-Tribune. I think it was 1998. He and Mark Sauer 23 had co-written the series and it was just chronology of 24 everything that occurred in the Crowe case. 25 Q. Did it indicate anything regarding the CVSA? 26 A. I don't recall specifically. I did answer 27 earlier that he had written, I think, a separate article 28 which he has shown me. I think the six-part series did Peterson & Associates Court Reporting, Inc. 192 1 mention the CVSA. I don't recall how prominently. 2 Q. As part of the class that you assign to them, 3 do you teach anything regarding the CVSA? 4 A. Well, I do assign the Lykken book in that class 5 and I think I assign the CVSA chapter. The chapter is 6 essentially on the CVSA and then it comes up in the 7 context of particular cases we study in class including 8 the Crowe case. 9 Q. Is there a particular way you teach the CVSA? 10 Do you have a particular format that you discuss the CVSA? 11 A. I typically these days use Power Point, so I 12 have Power Point slides to organize my lectures. That 13 would be the format. I don't spend a lot of time on the 14 CVSA. 15 What I focus on is the theory of lie detection, 16 whether it's polygraph or the CVSA or any other technology 17 that law enforcement purports to use to infer deception 18 from behavior. 19 So we go through the theory and why the theory 20 is flawed and then we go through the empirical evidence 21 and why the empirical evidence doesn't support the 22 technology and then we go through how and why it was used 23 as an interrogation technique. 24 Q. When you go through the empirical evidence, are 25 you referring back to Lykken again? 26 A. Yes. The Lykken book is the comprehensive book 27 about that subject. 28 Q. Are you referring to anything else when you're Peterson & Associates Court Reporting, Inc. 193 1 going through empirical evidence other than Lykken? 2 A. There are a number of other studies, but I 3 don't assign them. I did assign a study by Kassin on the 4 ability of Reid trained interrogators to -- Reid trained 5 individuals to infer deception from behavior, but that's 6 not about the CVSA. 7 I think those are -- the week that I spend on 8 behavioral lie detection, I assign most or much of the 9 Lykken book and that one Kassin article, not about the 10 CVSA, and we move on to other topics. 11 Q. So there's not any other empirical studies 12 that you refer to in your class other than the Lykken 13 study with regard specifically to the validity of the CVSA? 14 A. Correct. 15 Q. Have you conducted any tests or studies to 16 confirm the validity of the CVSA, whether the CVSA works? 17 A. No. 18 MR. ARNELL: When you say "works," what do you 19 mean by "works"? 20 MS. MISERLIS: Whether the CVSA is a truth 21 verification instrument. 22 THE WITNESS: No, I have not conducted any such 23 studies because it's my belief that the CVSA is 24 theoretically flawed. There would be no reason why I 25 would attempt to conduct that type of study. 26 BY MS. MISERLIS: 27 Q. Can you clarify that answer in terms of your 28 opinion that it's theoretically flawed? Peterson & Associates Court Reporting, Inc. 194 1 A. The problem that all truth detection 2 technologies have which the CVSA also has theoretically is 3 that there is no unique -- no empirically demonstrated 4 unique behavioral response that indicates deception. 5 Unlike Pinocchio, our noses don't grow longer. 6 There's absolutely no empirical proof about this AM/FM 7 frequency. So the problem theoretically for all the 8 behavioral lie detection technologies is it's never been 9 demonstrated and there is no reason to believe there's a 10 unique physiological response when people lie as to when 11 they tell the truth. You can never know any particular 12 physiologic response is the product of deception. 13 The only way you could have a meaningful 14 device for lie detection technology is if you could first 15 show some behaviors unique only to when an individual is 16 lying. Then you could develop the technology that would 17 identify when that unique behavior is occurring. 18 There is no demonstration or clear theoretical 19 reason -- there's no demonstration that has occurred. 20 There's no reason to believe it ever will occur. 21 (Recess taken.) 22 BY MS. MISERLIS: 23 Q. Can you tell me what your background is in 24 physiological responses to lying? 25 A. I have no background in the study of 26 physiology. 27 Q. So where do you get the information that there 28 is no universal physiological response to lying? Peterson & Associates Court Reporting, Inc. 195 1 A. From my study of lie detection from the books 2 and articles on the subject that I've reviewed as part of 3 my study in interrogation and confession. 4 Q. Other than the Lykken book, are there any other 5 articles or books that you've relied on? 6 A. There are numerous books and articles that are 7 about it or mention it. I've got a whole drawer full of 8 articles. 9 Q. Specifically to the issue of whether there's a 10 physiological response to lying? 11 A. Specifically about the issue of behavioral lie 12 detection. There's no article just about that. That's an 13 obvious fact that's just given in which that had been 14 mentioned. 15 Q. I'm sorry. You said what's an obvious fact? 16 A. That nobody has ever demonstrated a unique 17 physiological response in the human body to deception or 18 unique physiological response when somebody is being 19 deceptive. 20 Q. You know that because you've read books on lie 21 detection? 22 A. Books and articles, yes. 23 Q. So my question is, other than Lykken, which 24 other ones have you read? 25 A. Numerous ones. I don't recall the specific 26 names and titles, but there are numerous articles. 27 Q. Can you recall any of them? 28 A. Paul Ekman, a professor at UC San Francisco has Peterson & Associates Court Reporting, Inc. 196 1 written a number of articles including a book. 2 Q. Do you remember the name of the book? 3 A. I think it's called "Telling Lies." 4 Q. I'm sorry. What was it called? 5 A. "Telling Lies." There's a female -- there's a 6 woman psychology professor at the University of Virginia, 7 Dapulo. Like Ekman, she's written numerous articles on 8 lie detection. 9 I think there's a psychologist named Benjamin 10 Kleinnuntz. He's written articles on lie detection. 11 There's a professor in Europe. His name is 12 Aldert Vrij. He's written a book as well as numerous 13 articles on lie detection. 14 Q. Do you recall the name of the book? 15 A. I think it's called "Detecting Deception." I'm 16 not sure if that's the title. It's a recent book. 17 There are numerous others whose names I don't 18 recall, authors I don't recall the names of. There are 19 also scholars of interrogation who write about lie 20 detection and the use of lie detection. 21 I referenced an article by Kaslin. Gisli 22 Gudjonsson has written about the role of the polygraph in 23 lie detection in interrogation. I don't know whether he's 24 specifically written about the CVSA. This is a topic I'm 25 familiar with and it's been written about by a number of 26 individuals in a number of contexts. 27 Q. Is it a topic that you've either taken a whole 28 course on or -- strike that. Peterson & Associates Court Reporting, Inc. 197 1 Is it a topic you've taken courses on or is it 2 just something that comes up in the context of your 3 education? 4 A. I haven't taken a specific course on behavioral 5 lie detection. The Reid method teaches that you can read 6 the suspect's body language, essentially what they call 7 verbal and nonverbal indicators of guilt, truth telling. 8 So the part of the Reid method of training and 9 interviewing in an interrogation is to train the 10 interrogator how to read the suspect's verbal and 11 nonverbal behavior in terms of whether they're telling the 12 truth or not telling the truth which is essentially 13 training or purporting to train the interrogators on how 14 to be human lie detectors. 15 I've taken two courses from Reid and Associates 16 as well as other interrogation training courses, but never 17 anything specifically on a computer voice stress analyzer. 18 Q. Have you ever taught a course specifically on 19 that issue? 20 A. The interrogation confession in the law 21 undergraduate course, I spend a whole week on the issue, 22 but I wouldn't teach anybody how to detect deception 23 because I think that's a fundamental flaw in its core, 24 whether it's nonverbal or verbal behavior, whether it's 25 the polygraph or whether it's the computer voice stress 26 analyzer. 27 Q. Did you rely on Victor Cistaros' report in 28 coming to the opinion that this CVSA is not a truth Peterson & Associates Court Reporting, Inc. 198 1 verification instrument? 2 A. No. I held that opinion before reading his 3 report. I read his report in the last week or so, well 4 after I produced my own report. 5 Q. Have you stated all of the bases on which you 6 came to the conclusion that the CVSA is not a truth 7 verification instrument? 8 A. I believe so. I expressed some bewilderment at 9 how to give you the answer you were looking for, but the 10 bases are my education, my research, my training, my 11 knowledge, my expertise in this area. 12 And I believe in this report, even though I've 13 reviewed materials since this report, I believe this 14 report comprehensively contains my opinion about that and 15 the sources for my opinion about it. 16 Q. Back to Page 5 of the report. Right after that 17 statement, you continue with, quote, "The CVSA is a 18 pre-rigged interrogation technique." 19 A. Yes. 20 Q. What did you mean by that? 21 A. It was set up to make Michael fail. There was 22 no genuine attempt to determine whether or not Michael 23 Crowe was telling the truth or lying, that McDonough would 24 have known ahead of time that he was going to tell Michael 25 he failed, just like he told Treadway he failed, just like 26 he told Houser he failed. 27 Just like in every instance that I've ever seen 28 the computer voice stress analyzer used in an Peterson & Associates Court Reporting, Inc. 199 1 interrogation. You tell them it can help prove innocence, 2 objective exam, doesn't make mistakes except in rare 3 explainable situations that don't apply here. 4 You run them through the exam and you tell them 5 they failed and repeat the accusation of guilt and try to 6 trap them. That's what happened here. 7 Q. Is it your opinion, then, that McDonough or 8 actually -- strike that. 9 Is it your opinion that anybody who uses the 10 CVSA goes into it with that framework of what's going to 11 be done with it? 12 A. If they are following the standard, yeah. If 13 they are following interrogation protocol, if they use a 14 CVSA in the context of an interrogation, they are dealing 15 with that framework. 16 Again, the point of the interrogation is not to 17 figure out whether the suspect is, in the mind of the 18 investigator, innocent or guilty. That's been done well 19 before the interrogation. 20 The only context in which it would make sense 21 to use the CVSA or the polygraph as a truth verification 22 instrument as opposed to an interrogation technique is if 23 it was used prior to interrogation. 24 Q. You indicated that you recall specifically one 25 case on that list where the CVSA was used, but how many 26 cases of those are cases where the CVSA was used? 27 A. I don't know the specific number. I would have 28 to estimate. Maybe half a dozen, maybe up to a dozen. Peterson & Associates Court Reporting, Inc. 200 1 These cases, of course, are only the cases that I 2 testified in in the last four years to the day of the 3 report. 4 I've testified in a few more cases prior to 5 before your cut off, and also I've worked on several 6 hundred cases that I never testified where the CVSA also 7 may have been used. 8 Q. Of all the cases you've worked on, regardless 9 of whether you specifically testified or whatnot, in how 10 many of those cases did you see the CVSA being used? 11 A. I haven't counted, so I can't give you a 12 precise count. I would say I've worked on almost 400 13 cases. I would estimate that maybe a dozen to two dozen, 14 possibly higher. That's just my best estimate. 15 Q. Is it your testimony that in every single case 16 in which you've seen the CVSA used, the suspect has been 17 told that they failed the CVSA? 18 A. Yes, and that the CVSA has been administered as 19 part of the interrogation. 20 Q. Do you have an opinion regarding who the CVSA 21 is, quote, unquote, pre-rigged by? 22 A. By the interrogator. It's a technique that is 23 used by the interrogator in any particular interrogation 24 where the suspect is set up for failure. That's what I 25 meant by pre-rigged in this interrogation. It was a 26 pre-rigged interrogation technique meant to convince 27 Michael used here by Detective McDonough. 28 Q. Is it your opinion that the individuals who use Peterson & Associates Court Reporting, Inc. 201 1 the CVSA do not ever read the voice prints that come out 2 of the CVSA and try to come up with an analysis of these 3 voice prints? 4 A. No. I've seen them read the voice prints. 5 I've never seen an interrogator or a detective employ of 6 the CVSA and say this shows you're telling the truth. 7 Never, ever seen that in any of the cases I've studied. 8 As I mentioned, it would be inconsistent with 9 how they are trained and why they interrogate to use the 10 CVSA as a truth verification instrument in the course of 11 an interrogation. 12 It may be that there are some police officers 13 out there who genuinely believe in and use the computer 14 voice stress analyzer as a truth verification technique. 15 I've never seen it and it would have to be prior to the 16 interrogation if that were the true goal of the technique. 17 Q. I guess my question is, do you believe, then, 18 that the individuals who are reviewing these voice prints 19 are just sort of making up information as they're 20 reviewing it? 21 A. If it's used as an false evidence ploy, yes. 22 They're essentially reading tea leaves and interpreting 23 the tea leaves as indicative of the guilt of the suspect. 24 I have never seen an interrogation in which I 25 believe the interrogator made a good faith attempt to 26 determine whether or not the suspect was telling the truth 27 based on the computer voice stress analyzer. 28 In all the interrogations that I have studied, Peterson & Associates Court Reporting, Inc. 202 1 it's my interpretation in each one, the interrogator knew 2 ahead of time that he was going to fail the suspect or 3 tell the suspect that, and everything they said about 4 whether it was a Christmas tree or a block or a mangled 5 Christmas tree or whatever these indecipherable 6 scribblings mean, was meant to lie to the suspect. There 7 was no -- as far as I could tell, no attempt to use it as 8 a truth verification instrument. 9 Q. I know you indicated you hadn't actually gone 10 to any of the training courses with regard to the CVSA, 11 but do you know anything about what is contained in that 12 training? 13 A. I believe I've read about the training or heard 14 about the training. It was a six-day training or 15 something like that. I don't recall any specific 16 conversations. 17 My understanding would be they're trained how 18 to use the computer voice stress analyzer, the logic and 19 application of it, but I have no specific knowledge of 20 what goes on in those training sessions. 21 Q. Is that the extent, to your knowledge, what 22 you've indicated regarding the training? 23 A. That would be -- yeah, that would be my best -- 24 I may have talked about it with John Wilkens who for his 25 story may have reviewed training. 26 I was contacted by a Bakersfield journalist who 27 reviewed some training materials. I may have been sent 28 some training materials at some point. I've encountered Peterson & Associates Court Reporting, Inc. 203 1 presumably training materials in some of the cases I've 2 worked on, but I don't recall specifically what those 3 materials said or what the training consists of. 4 Q. Do you have an opinion regarding whether the 5 manufacturer of the CVSA, quote, unquote, "pre-rigs" the 6 device? 7 A. No, I don't have an opinion. I don't know if 8 pre-rigs is really the right word. I'll answer and you 9 can tell me if I'm wrong. 10 I do not have an opinion about whether or not 11 the manufacturer of the device genuinely believes in its 12 ability to detect deception. I do not know the 13 motivations. I don't know what the beliefs of the 14 manufacturer are about the instrument. 15 Q. Other than the cases that you've seen where the 16 CVSA is used, what else do you base your opinion on that 17 the CVSA is a quote, unquote, "pre-rigged interrogation 18 instrument"? 19 MR. ARNELL: It's been asked and answered. 20 THE WITNESS: I thought I answered that 21 question. It would be on the materials I've read, some of 22 which I've detailed in the lie detection material as well 23 as in the -- 24 BY MS. MISERLIS: 25 Q. Are those the same materials we've been 26 discussing? 27 A. The CVSA is one of several lie detection 28 technologies. They all have the same purpose in the Peterson & Associates Court Reporting, Inc. 204 1 context of an interrogation and they all follow the same 2 logic. 3 Q. Are you referring to the same materials that 4 you were discussing when we were talking about your 5 opinion that the CVSA is not a truth verification 6 instrument? 7 A. Yes. 8 Q. Anything else that you base your opinion that 9 the CVSA is pre-rigged? 10 A. All of the materials that I've read, the 11 academic studies that mentioned it or were about the use 12 of it behavioral lie detection technologies in the 13 interrogation setting. 14 Q. In that same paragraph on Page 5, you go on to 15 state that the CVSA was meant to convince Michael by 16 invoking the authority and supposed infallibility of 17 modern science and computer technology that his guilt had 18 been assigned with certainty. 19 When you use the word "meant," who are you 20 referring to? 21 A. Detective McDonough. 22 Q. Did you base your opinions regarding the CVSA 23 in this matter on any of the statements made to you by 24 plaintiff's attorneys? 25 A. No. 26 Q. In those cases in which you have seen the CVSA 27 used, have you done any sort of study or published any 28 article regarding how the CVSA was used in those cases? Peterson & Associates Court Reporting, Inc. 205 1 A. I don't believe so. 2 Q. Did you have any opinions regarding the use of 3 the CVSA when you were retained previously in the criminal 4 matter? 5 A. It would have been the same opinion that I have 6 now. 7 Q. Did you ever have occasion to testify regarding 8 that opinion or put that opinion in your report at any 9 time? 10 A. No. The case was dismissed before my testimony 11 would have been given. 12 Q. You didn't put it into any sort of report for 13 that case? 14 A. Correct. In criminal cases, it's rare to write 15 a report. 16 Q. Have you stated all of the opinions that you 17 intend to offer at the time of trial regarding the CVSA in 18 this matter? 19 A. I believe so. There's always the possibility 20 that I'll be given new information or some new 21 development. Sometimes experts will say in the reports 22 they reserve the right to change the opinion or modify it 23 if provided new information. I assume it goes without 24 saying, so I don't say that. 25 Based on what I know today, I don't expect 26 there are any things that would change or be added, but 27 it's certainly possible if information is presented. 28 MR. ARNELL: You're referring to your report as Peterson & Associates Court Reporting, Inc. 206 1 well? 2 THE WITNESS: The report of November 30, 2002. 3 BY MS. MISERLIS: 4 Q. If you change any of your opinions or add any 5 opinions regarding the CVSA, you will notify your attorney 6 of that? 7 A. Yes. 8 Q. What is the case that you're testifying in 9 tomorrow? 10 A. It's a murder case. The defendant's name is 11 Adella Contreras. My understanding is that I'm going to 12 offer general testimony about interrogation and false 13 confessions. Many months ago, I reviewed -- probably a 14 year ago, I reviewed some documents in the case and I 15 think at that point the attorney made the decision to just 16 solicit general testimony, and we haven't really talked 17 about the specific facts of the case. I don't remember 18 the specific facts of the case. It's a trial. 19 Q. Are you planning on giving any specific 20 opinions regarding whether a confession was coerced in 21 that matter? 22 A. No. It would be general testimony about police 23 interrogation training, psychology of interrogation, 24 particular techniques and methods and how coercive 25 techniques can lead to false confessions, what we know 26 about false confessions, both causes and the indicia of 27 it. 28 Q. Are you retained by the defense in that case? Peterson & Associates Court Reporting, Inc. 207 1 A. Yes. I think he works for the public 2 defender's office here in San Diego. Maybe the alternate 3 public defender's office. 4 Q. In all of the criminal trials that you 5 testified in, it's been on behalf of the defendant; is 6 that correct? 7 A. Correct. 8 Q. Have you ever been retained in a criminal 9 matter by anyone other than the defendant? 10 A. No. 11 Q. Do you have any engineering training? 12 A. No. 13 Q. In the Green case that you referred to, did you 14 offer an opinion regarding the use of the CVSA in that 15 case? 16 A. I may have offered general opinions about how 17 the CVSA is used in general. I don't recall if I had 18 specific opinions. 19 Q. Would that be similar to the opinion that 20 you're giving in this case regarding the CVSA? 21 A. Correct. 22 Q. You may have already testified to this, but in 23 the Green case, was the suspect informed of the CVSA 24 results showing that he or she was lying? 25 A. My recollection is that the person who was 26 performing the CVSA was interrogating the suspect as he 27 was doing the CVSA and ended up getting a confession 28 before he completed the CVSA exam. So it was never Peterson & Associates Court Reporting, Inc. 208 1 completed. 2 Q. So it was your understanding that the person 3 who was giving the CVSA never told the suspect what the 4 results were? 5 A. He told them in the beginning you're lying so 6 we're going to do this exam, but I know you're lying and 7 proceeded to get a confession through standard 8 interrogation techniques at the time he was administering 9 the exam. 10 Q. Is Green a male or female? 11 A. Mr. Green. He never showed Mr. Green a 12 printout. 13 Q. Did he ever tell him the results of the 14 printout, his reading of the printout? 15 A. I don't think he ever did a printout because he 16 was taking questions as he was interrogating him and at 17 some point in the interrogation -- you see what happens 18 when computers are not being used, the screen -- 19 Q. The sleeve mode? 20 MR. WAGGONER: Screen saver. 21 THE WITNESS: Screen saver. 22 As he gets into the interrogation, he stops 23 paying attention to the CVSA. He did tell him, if he 24 lied, he would fail. 25 BY MS. MISERLIS: 26 Q. That he would fail or he was failing? 27 A. That he would fail. 28 Q. Was the person who was giving the CVSA telling Peterson & Associates Court Reporting, Inc. 209 1 the suspect that the results of the CVSA were this? 2 A. I don't recall that he told him what the actual 3 results were because he never completed the exam, but he 4 would challenge the answers that the individual was 5 giving. He may not have told him that they would fail, 6 but he was attacking the suspect's denials and accusing 7 him of lying about the alleged crime, which in that case 8 was child sexual abuse. 9 Q. Have you ever been retained as an expert to 10 give an opinion regarding the use of the CVSA in a 11 criminal investigation other than in this case? 12 A. No. I've been retained to give opinions in 13 cases that involve the CVSA as I mentioned, but not 14 specifically about the CVSA. 15 Q. In your curriculum vitae that you've provided, 16 do any of your accreditations, your books, address the 17 use of the CVSA? 18 A. In some of the articles there may be particular 19 mention, where the CVSA is mentioned. I would have to go 20 through them, particularly false confessions. 21 There's two 1997 articles with Richard Ofshee. 22 They may or may not mention the CVSA. The first is called 23 "The Decision to Confess Falsely." The second is called 24 "The Social Psychology of Police Interrogation." 25 There may be mention of the computer voice stress 26 analyzer in passing in the 1998 article, "The Consequences 27 of False Confessions" also with Richard Ofshee. If 28 there's any discussion of the CVSA, that's where it would Peterson & Associates Court Reporting, Inc. 210 1 be. 2 Q. I'm sorry. So there are two articles and then 3 was there an additional article? 4 A. Three articles, but what you have to understand 5 is the CVSA is one example of the lie detection 6 technology. We talked about lie detection as an 7 interrogation technique. I don't recall if it 8 specifically was the CVSA. 9 Q. In any of the publications, do you refer 10 generally to the lie detection technique? 11 A. I believe in several of the publications -- I 12 think the three that I just mentioned. There's a book 13 chapter, 2001 book chapter called "False Confessions, 14 Causes, Consequences and Solutions." It's on Page 4 of 15 the January 2003 CV, which is a more recent version than 16 what you may have. I believe that refers to lie 17 detection. 18 There's a 1996 article, "Inside the Police 19 Interrogation Room" that may refer to it. There's a 1996 20 article called "Miranda's Revenge." That may refer to it. 21 There's a 1994 article called "Police 22 Interrogation and Social Control." That may refer to it. 23 There's a 1992 article called "From Coercion to 24 Deception." That may refer to it. 25 There's a 1992 article called "The Ethics of 26 Deceptive Interrogation." That may refer to it. 27 There's several articles that I think refer in 28 some places to lie detection technology, probably the Peterson & Associates Court Reporting, Inc. 211 1 polygraph, possibly the CVSA. 2 Q. Other than the one week portion of your 3 interrogation course, are there any other courses that 4 address the use of the lie detection devices or the CVSA? 5 A. The other interrogation training course that 6 I've taken, particularly a week-long training course at 7 the San Mateo Community College. 8 Q. I think you might have misunderstood my 9 question. I'm asking what courses you feature. You 10 indicated you had a one-week course you teach as part of 11 your interrogation class. 12 Other than that course, do you have any other 13 courses that you teach that address first the CVSA? 14 A. No. 15 Q. What about lie detection techniques? 16 A. No. I do teach a class called 17 "Mischaracterizations of Justice," why people can get 18 wrongfully convicted and what we can do. There is a week 19 on interrogation and false confessions. In that week, I 20 probably do mention briefly in passing lie detection 21 technologies, their use in interrogation and how they can 22 be involved in the elicitation of a false confession from 23 an innocent person. 24 Q. I interrupted you in that last question. You 25 started to tell me about another course you had taken. 26 A. I've taken two other interrogation training 27 courses that were week long. One was at the San Mateo 28 Community College. I believe it was in 1992 and one was Peterson & Associates Court Reporting, Inc. 212 1 at the federal law enforcement training center in Georgia 2 in 1993 where federal police are trained. That one was an 3 advanced course. 4 In both of those courses, I believe they talked 5 about how to psychologically evaluate whether someone is 6 lying, not behavioral lie detection in the sense of an 7 instrument like the polygraph or CVSA, but rather in the 8 same sense that Reid and Associates trains detectives to 9 detect lie detection based on verbal and nonverbal 10 behavior. 11 Q. Have you ever taken any training in 12 administering the polygraph test? 13 A. No. 14 Q. Of the documents that you reviewed in this 15 case, which of those documents did you rely on for your 16 opinion about the CVSA and how it was used in this matter? 17 A. In this particular case, it would be the 18 interrogation transcripts and videotapes in the Michael 19 Crowe, Joshua Treadway and Aaron Houser interrogations. 20 Q. Is there a reason why you left out -- did you 21 say Aaron Houser? 22 A. I think I did. 23 MR. ARNELL: He did. 24 BY MS. MISERLIS: 25 Q. Have you had any discussions with any of the 26 plaintiff's attorneys regarding the CVSA? 27 A. Specifically, no. 28 Q. Have you spoken with any of the plaintiffs in Peterson & Associates Court Reporting, Inc. 213 1 this matter? 2 A. You mean Houser, Treadway or Crowe? No, I've 3 never spoken to any of them. 4 Q. Actually any of the plaintiffs. Have you 5 spoken with any plaintiffs in this matter? There's more 6 than -- parents? 7 A. Their parents as well. No, I haven't spoken -- 8 I've never met or spoken to any of the parents in this 9 case. 10 Q. Do you know what the plaintiff's costs to date 11 are for your expert fees? 12 A. Did you say costs? 13 Q. Costs. 14 A. No, but if my estimate of 100 hours is 15 accurate, my hourly rate is $250 an hour, so that would be 16 $25,000, approximately, to date. 17 Q. Have you sent any bills yet? 18 A. No. 19 Q. Did you charge a retainer in this matter? 20 A. No. 21 MS. MISERLIS: That's all I have for now. 22 23 EXAMINATION 24 BY MR. LOEDING: 25 Q. Dr. Leo? 26 A. You can call me whatever you like. 27 Q. I'll call you Dr. Leo. I'm Scott Loeding. I 28 represent Dr. Lawrence Blum. Peterson & Associates Court Reporting, Inc. 214 1 You've written a separate report regarding him, 2 so I'm going to ask you some questions regarding that and 3 background. 4 Have you ever conducted an interrogation? 5 A. No. 6 Q. Have you ever participated in an interrogation? 7 A. That depends on what you mean by participate. 8 As part of my doctoral dissertation in research, I sat in 9 on 122 live interrogations at the Oakland Police 10 Department in 1992 and 1993. I made it a point to be a 11 neutral observer, to be out of the way. 12 There were occasions in those interrogations 13 when I was asked a question by the interrogators. 14 Typically, it's if they had said they said something 15 earlier and the suspect said no, you didn't. They would 16 look at me and say what did I say. 17 If that's participating in an interrogation, I 18 participated. But never directly and never in the role of 19 the interrogator or with the goal or intent to get a 20 confession. 21 Q. Have you ever rendered any expert advice to any 22 law enforcement officer conducting an interrogation? 23 A. Not as an interrogation was being conducted. I 24 have given lectures and training courses, but I never 25 actually have given advice during an interrogation. 26 Q. Back in 1998 or 1999, when Attorney McInnis 27 asked you to assist in this case, did you form an opinion 28 that Michael Crowe's confession was coerced? Peterson & Associates Court Reporting, Inc. 215 1 A. I understood that to be Don McInnis' opinion 2 and I was familiar at that point with the Crowe and 3 Treadway case through media reports. 4 I may also have discussed the case with 5 Richard Ofshee who had been retained by Mary Ellen 6 Attridge and Peter Blake, the attorneys for Crowe and 7 Treadway. 8 But McInnis did not have me view or read the 9 interrogation tapes or transcripts, so I don't believe 10 that I had formed an opinion about Crowe or Treadway 11 interrogations. 12 Q. Did anybody involved with the criminal process 13 ever discuss Dr. Blum with you? 14 A. At that time, I don't believe so. 15 Q. Did you have an understanding of Dr. Blum's 16 role in this case prior to writing your November 30th, 17 2002 report? 18 A. I was aware, I think, through the trial brief 19 prepared by Milt Silverman and through conversations with 20 Milt Silverman that Dr. Blum was involved in the 21 investigation of Crowe, Treadway and Houser and had been 22 present at the station and had studied some materials, but 23 I didn't know specifically what. 24 Q. Why didn't you mention Dr. Blum in your 25 November 30th, 2002 report? 26 MR. ARNELL: It may call for a legal 27 conclusion. 28 Go ahead. Peterson & Associates Court Reporting, Inc. 216 1 THE WITNESS: The report that I prepared, 2 November 30th, 2002, gives the opinions that I have about 3 the general and specific, about the issues that I thought 4 the attorneys were looking for in this case. 5 I may have overlooked the issue of Dr. Blum. I 6 didn't realize at that time that they were interested in 7 my opinion about his participation, and I had also not 8 been provided materials such as Jack Tramarco's report or 9 Dr. Blum's deposition prior to November 30th. 10 BY MR. LOEDING: 11 Q. Are you comfortable rendering opinions 12 regarding Dr. Blum's role in this case without reviewing 13 any of the depositions of the police detectives who were 14 involved with the interrogations of the three boys? 15 A. I have, in effect, rendered opinions about 16 Dr. Blum without reviewing the depositions of the police 17 detectives. I believe I've discussed some of what's in 18 those depositions with plaintiff's counsel. 19 Q. Which plaintiff's counsel have you discussed 20 Dr. Blum with? 21 A. I believe I discussed it with Mr. Francavilla 22 and Mr. Arnell. I may have also discussed it briefly with 23 Mr. Geile. 24 Q. What has Mr. Francavilla told you about his 25 theory why Dr. Blum is responsible for anything that 26 occurred during Joshua Treadway's interrogations? 27 A. Well, I don't recall who told me what, but I 28 think the discussion was that they wanted me to review Peterson & Associates Court Reporting, Inc. 217 1 these materials and write a report. 2 I don't recall specifically what 3 Mr. Francavilla would have said. I think at that time I 4 had spoken very briefly to Mr. Francavilla and very 5 briefly to Mr. Arnell, telling them what they thought so 6 much as getting me to write this report. I may have had a 7 longer discussion with Bob Geile and I don't know if you 8 want to ask me about that. 9 Q. Mr. Francavilla has never discussed Dr. Blum's 10 role with respect to Joshua Treadway's interrogations with 11 you? 12 A. I spoke to Mr. Francavilla briefly, and I 13 believe he may have mentioned in that conversation that he 14 thought that Dr. Blum had an impact on what occurred 15 during Joshua Treadway's interrogations, but I don't think 16 we discussed it specifically in any depth. He may have 17 made that comment. 18 Q. What did he tell you about why he believed 19 that? 20 A. I don't recall. 21 Q. Has any other attorney discussed with you 22 whether Dr. Blum had any type of impact on 23 Joshua Treadway's interrogations? 24 A. I may have discussed with -- do you mean 25 Mr. Arnell? 26 Q. Any others. 27 A. With Mr. Arnell, I may have discussed this 28 comment about Aaron Houser being a Manson wanna-be very Peterson & Associates Court Reporting, Inc. 218 1 briefly, but I don't recall any more conversation than 2 that, and that may have had some effect in the 3 investigation of Aaron Houser. 4 Q. Mr. MR. ARNELL told you that he believed that 5 Dr. Blum's Charles Manson comment may have had some effect 6 in Aaron Houser's investigation? 7 A. That may have been made in passing. I don't 8 recall any specific statements about what effect it would 9 have had. Again, the conversations I had with Mr. 10 Francavilla, at least my recollection, and Mr. Arnell were 11 very brief. 12 Q. Did any attorney provide you with a theory as 13 to why or how Dr. Blum violated Joshua Treadway's rights 14 in this case? 15 A. Not that I recall. 16 Q. Did any attorney provide you with what the 17 theory is as to how Dr. Blum violated Aaron Houser's 18 rights during his interrogation? 19 A. Not that I recall. 20 Q. In your December 31st report -- 21 A. Let me modify that. It may have come up in my 22 conversation. I'm speculating because I don't recall the 23 conversation -- that Dr. Blum's comment encouraged the 24 Escondido police to believe that Aaron Houser was 25 involved. 26 His comment about the Manson wanna-be and it 27 may have come up that his input into the interrogation of 28 Treadway had some impact on the techniques the detectives Peterson & Associates Court Reporting, Inc. 219 1 actually used to elicit statements from Treadway, but I 2 don't recall anything specific. It's possible it came up. 3 Q. What input did Dr. Blum have as to the 4 interrogation of Joshua Treadway? 5 A. I don't recall from the documents that I 6 reviewed any specific evidence of his impact on the 7 Joshua Treadway interrogation. 8 Q. As far as you know, he had absolutely no input 9 or impact on Joshua Treadway's interrogation? 10 A. I just don't know. 11 Q. What imput did Dr. Blum have as to 12 Aaron Houser's interrogation? 13 A. Again, I don't know. His comment that 14 Aaron Houser is a Manson wanna-be might have had some 15 impact, but I don't know. 16 He may also have made statements to the 17 detectives after listening to this tape of the January 28, 18 1998 phone call to Joshua Treadway and Aaron Houser, but I 19 don't know what specifically he would have said or did 20 say. 21 Q. So as far as you know, nothing that Dr. Blum 22 said after listening to this tape recorded telephone 23 conversation had any impact on Aaron Houser's 24 interrogation with the possible exception of the 25 Charles Manson comment? 26 A. Correct. 27 Q. In your report, you said that Dr. Blum advised 28 Detective McDonough; is that right? It's at the end of Peterson & Associates Court Reporting, Inc. 220 1 Paragraph 2 on Page 1. 2 A. Yes. 3 Q. Is it your belief that Detective McDonough used 4 that advice and coerced a false confession from 5 Michael Crowe on January 23rd? 6 A. It is my belief that there was a coerced 7 confession from Michael Crowe, false confession on 8 January 23rd, and that McDonough and Claytor may have 9 relied on the advice that Dr. Blum gave them and likely 10 did rely on the advice. 11 When you get somebody in the police station 12 like a psychologist, you pay them a lot of money and 13 they're an expert on things that the interrogators believe 14 are relevant to the interrogation. It would make no sense 15 to disregard their advice. 16 They're there for a purpose, and if they're 17 giving advice and that advice is implemented, it doesn't 18 mean they have an affect on the outcome of the 19 interrogation. 20 Q. Do you believe Detective McDonough coerced a 21 false confession from Michael Crowe on January 23rd? 22 A. I need to review my documents. My notes don't 23 indicate what part of the interrogation on January 23rd 24 was done by McDonough, what part by Claytor and what part 25 by Wrisley. 26 I believe that Detective McDonough was involved 27 in the coercive interrogation process that did lead to a 28 false confession from Michael Crowe. Peterson & Associates Court Reporting, Inc. 221 1 Q. When did Dr. Blum provide Detective McDonough 2 with advice? 3 A. Presumably on the 23rd. My report indicates 4 he monitored four and a half hours of Michael Crowe's 5 January 23rd interrogation and provided input during that 6 time. 7 Q. Prior to the beginning of Michael Crowe's 8 January 23rd interrogation, what advice did Dr. Blum give 9 to any of the detectives in this case? 10 A. I'm not aware of any advice he did give. 11 Q. Prior to Michael Crowe's January 23rd 12 interrogation, what opinions did Dr. Blum give to any of 13 the detectives as to how they should proceed with the 14 interrogation? 15 A. I'm not aware of any opinions he gave at that 16 time. 17 Q. Prior to the start of the January 23rd 18 interrogation of Michael Crowe, what assistance did 19 Dr. Blum give to any of the detectives in devising a way 20 to maximize the information seeking function of the -- 21 A. Prior to January 23rd? 22 Q. Prior to the interrogation of Michael Crowe 23 beginning on January 23rd. 24 A. I don't know the answer to that question. 25 Q. What was the tactical plan that Dr. Blum 26 devised with the detectives regarding the interrogation of 27 Michael Crowe? 28 A. I don't know what tactical plan he devised. He Peterson & Associates Court Reporting, Inc. 222 1 did apparently, according to his own deposition, tell 2 Claytor that Michael Crowe -- certain things -- that 3 Michael Crowe liked to be alone and, therefore, Claytor 4 should mention he'll be alone with all these guys in the 5 shower. 6 He says he believes Claytor's subsequent 7 technique, which implied prison threat, was influenced by 8 Dr. Blum's advice. That's described on Pages 2 and 3 of 9 the report. 10 Q. Is it your understanding that occurred during 11 Michael Crowe's interrogation? 12 A. That's my understanding. 13 Q. Prior to the beginning of Michael Crowe's 14 interrogation, what tactical plan did Dr. Blum devise with 15 the detectives to interrogate Michael Crowe? 16 A. I don't know which. I don't know the answer to 17 that question. 18 Q. Who believed that Dr. Blum was well known as an 19 expert on interviewing suspects or witnesses? 20 A. If anybody believed it, it would have been 21 Detective Claytor or whomever at the Escondido Police 22 Department retained him to help them interrogate 23 Michael Crowe. 24 Q. You don't know who had that belief? 25 A. No. 26 Q. Where did you get the information that Dr. Blum 27 was approached by the Escondido Police Department because 28 he was believed to be well known among law enforcement as Peterson & Associates Court Reporting, Inc. 223 1 an expert on the interviewing of witnesses and/or suspects 2 especially with sexually violent crimes? 3 A. Which page? 4 Q. First sentence, Paragraph 3, Page 1. 5 A. Either from something that was referenced in 6 his deposition or from conversations with the plaintiff's 7 counsel. 8 Q. Is Dr. Blum well known as an expert on 9 interviewing suspects? 10 A. Not to my knowledge, no. 11 Q. Have you ever seen his CV? 12 A. No, I don't think so. 13 Q. Do you know what he does for a living? 14 A. He said in his deposition, but I forgot. 15 Q. Do you know how many cases he has consulted 16 with law enforcement on concerning interrogations of 17 suspects? 18 A. I do not know the number. I think he said he 19 was in business in the first deposition -- 20 MR. ARNELL: The spring board. 21 BY MR. LOEDING: 22 Q. Referring to Page 2. 23 A. There may have been more. 24 Q. Page 2 of your December 31st report, the first 25 sentence stated that you do not find credible Dr. Blum's 26 claim that he offered no suggestion, no technique or no 27 participation in Michael Crowe's interrogation. 28 Did plaintiff's counsel ask you to comment on Peterson & Associates Court Reporting, Inc. 224 1 the credibility of Dr. Blum? 2 A. Probably. 3 Q. Which one? 4 A. Probably Mr. Geile. I don't remember 5 specifically, but I may have been responding to his 6 request to form an opinion about that. 7 Q. Did Mr. Geile tell you that either he or one of 8 his colleagues felt Dr. Blum was not credible? 9 A. His assertions were not credible. He may have 10 told me that if he did. 11 Q. Do you have any expertise on this particular 12 subject of whether Dr. Blum's claim was credible? 13 A. Depends on what you mean by "expertise." I 14 spent a lot of time in police stations, primarily the 15 police department, and I just cannot imagine why any 16 police department would pay somebody $225 an hour to 17 contemporaneously monitor four and a half hours of an 18 interrogation unless they thought they were going to get 19 something out of it. 20 Police are very pragmatic people and there's 21 reason to believe, apparently referenced here through what 22 Detective Claytor said in his deposition reference which I 23 have not read -- reference to Blum's deposition, he 24 understood Blum to be an expert on interviewing 25 techniques. 26 To me, it strains credibility that Blum would 27 have been there not giving any advice, suggestion or 28 technique, yet collecting $225 an hour for his services Peterson & Associates Court Reporting, Inc. 225 1 from someone who believed that he had this expertise, 2 whether or not, in fact, he did. 3 It makes no sense. Dr. Blum's assertion I did 4 not want them to involve me in any way in this case -- I 5 don't know what I was doing there. That's preposterous. 6 How could you go to a police station, be paid $225 an hour 7 and not know what you're doing there. That's utterly 8 unbelievable. 9 Even if it was the case that he was not 10 assisting in the interrogation, he had to have had some 11 idea what he was doing there. If he didn't, it's 12 irresponsible to charge $225 for just hanging out at a 13 police station not doing anything. 14 Q. What did the police ask Dr. Blum to do in this 15 case? 16 A. Presumably help them with the interrogation. 17 Q. Who spoke to Dr. Blum? 18 A. I don't know who spoke to Dr. Blum. 19 Q. What did they tell him specifically what they 20 wanted him to do? 21 A. I don't know. 22 Q. As far as you know, they just said we need help 23 in an interrogation? 24 A. Well, I guess it was referenced in his 25 deposition that Detective Claytor wanted Dr. Blum to give 26 advice on how to interrogate Michael Crowe, so if 27 Detective Claytor is telling the truth or accurately 28 remembering what occurred, then presumably he was Peterson & Associates Court Reporting, Inc. 226 1 soliciting advice from Dr. Blum. 2 I don't know whether he would have been the one 3 to contact Dr. Blum if this, in fact, occurred or he would 4 have just been the recipient of the advice. 5 Q. What did Detective Claytor tell Dr. Blum that 6 he expected Dr. Blum to do in this case? 7 A. I don't know. 8 Q. Have you ever spoken to any of plaintiff's 9 counsel regarding their opinion as to whether Detective 10 Claytor has accurately recalled certain facts in this 11 case? 12 A. The trial brief alleges -- I forget who -- it 13 may have been Claytor, it may have been Sweeney, but the 14 trial brief alleges that one of the two or possibly both 15 of them knowingly lied about certain things in the 16 investigation of the crime in connection with the 17 interrogation. 18 I may have spoken to Milt Silverman about that 19 or he may have mentioned that to me. 20 Q. Are you willing to leave the issue of Dr. 21 Blum's credibility to the jury or do you have some 22 particular expertise that you feel would assist in 23 evaluating that topic? 24 A. I think ultimately the issue of Dr. Blum's 25 credibility has to be left to the jury. 26 The only thing I can assist them with is, given 27 my knowledge of police interrogation, why police might 28 retain the services of someone like Dr. Blum and what Peterson & Associates Court Reporting, Inc. 227 1 somebody of his status might say or what their purpose 2 might be in an interrogation, but ultimately they have to 3 evaluate the credibility. It's not for me. 4 I can evaluate the credibility of someone's 5 claims based on my knowledge, but his credibility is their 6 province. 7 Q. What knowledge do you have that allows you to 8 evaluate his claims? 9 A. The research, training, experience, teaching, 10 publication on the whole police interrogation confession 11 process. I don't know how I can be more specific to that 12 question. 13 It's atypical to bring in a third party, but I 14 have seen it done before, a third-party psychologist. 15 Q. Do you have any knowledge specific to this case 16 that allows you to render an opinion on Dr. Blum's 17 credibility? 18 A. Credibility with regard to what? 19 Q. Your claim that you do not find him credible, 20 that he offered no suggestion or technique or 21 participation in Michael Crowe's interrogation. 22 A. I don't find that assertion credible. That 23 doesn't mean that I think that every assertion Dr. Blum 24 makes is not credible or that he's not a credible witness 25 more generally, only that I find it extremely hard to 26 believe that he's telling the truth right here. This 27 claim I don't find credible as it states in the report. 28 Q. Is that based upon any testimony that's been Peterson & Associates Court Reporting, Inc. 228 1 rendered by any of the detectives who had contact with 2 Dr. Blum? 3 A. Well, my understanding from reading Blum's 4 deposition is that Claytor testified that Blum gave 5 detectives advice on how to interrogate and I can't 6 understand why Claytor would have intentionally lied about 7 that. He had no motive to or why he would have been 8 misinformed about that. 9 Q. What has Claytor testified to as to what advice 10 Dr. Blum gave him in this case? 11 A. I haven't reviewed the documents that would 12 allow me to be able to answer that question. 13 Q. You're not prepared to answer that at your 14 deposition? 15 A. Correct. 16 Q. You think $225 an hour is an unreasonable fee 17 for Dr. Blum to charge? 18 A. Not necessarily. He may be a very competent 19 and accomplished psychologist within his area of expertise 20 and he may have more business than he possibly can handle 21 and his time may, therefore, be very valuable whether he's 22 doing one thing or another and that may be the going rate, 23 given his experience and reputation. So I don't think 24 that charging that hourly rate is necessarily unreasonable 25 for his time. 26 Q. Do you have any information regarding 27 Dr. Blum's experience and reputation? 28 A. Other than what I gleaned from his deposition Peterson & Associates Court Reporting, Inc. 229 1 and Jack Tramarco's report, no. 2 Q. What do you charge in the criminal cases that 3 you either testify in or consult for? 4 A. I typically charge 250 an hour. I charge 5 public defenders in Orange County, San Diego and Riverside 6 a reduced rate of $200 an hour and I occasionally get 7 involved in cases pro bono. 8 Q. Why do you charge the reduced rate? 9 A. Because they're local and so there's less 10 likelihood that I'm going to have to travel or be 11 inconvenienced. 12 Q. That's just the public defender's office? 13 A. Correct. 14 Q. Do you get a check straight from the State of 15 California? 16 A. I don't know if it's the State of California or 17 County of San Diego or County of Orange. Usually a couple 18 months later I get a check after submitting a bill. 19 On occasion I get stiffed, but usually not by public 20 defenders. 21 Q. Do you have an arrangement with the University 22 of California Irvine regarding the fees you collect for 23 your consulting or expert witness work? 24 A. No. 25 Q. Do you retain all of the fees you collect in 26 that area? 27 A. Yes. If the question is do I give any of the 28 money to the university, the answer is no. Peterson & Associates Court Reporting, Inc. 230 1 Q. Is informing a police officer conducting an 2 interrogation that the young person may be able to 3 effectively communicate more fully verbally as opposed to 4 drawing or speaking coercive? 5 A. Not necessarily. 6 Q. Was it coercive in this case? 7 A. It depends on what was specifically said. You 8 would have to give me the context to evaluate that claim. 9 Q. Anything Dr. Blum said about writing a letter, 10 was that coercive conduct? 11 MR. ARNELL: You're talking about the 12 suggestion to write his dead sister a letter? 13 MR. LOEDING: Anything Dr. Blum said about the 14 letter. 15 THE WITNESS: Not that I'm aware of. It may 16 have been Dr. Blum gave advice to the detectives and then 17 they delivered the coercive threat, but clearly Dr. Blum 18 was not the one to implement any interrogation technique. 19 BY MR. LOEDING: 20 Q. Did Dr. Blum provide the police with any advice 21 as to how long the interrogation should last? 22 A. Not to my knowledge. 23 Q. Did Dr. Blum provide the police with any 24 questions that they should ask of Michael Crowe? 25 A. Not to my knowledge. 26 Q. Did Dr. Blum tell the police detectives that 27 they should treat Michael Crowe in a harsh or unkind 28 manner? Peterson & Associates Court Reporting, Inc. 231 1 A. Not to my knowledge. 2 Q. Did Dr. Blum -- 3 A. Ultimately, I don't know. 4 Q. Did Dr. Blum tell the police that they should 5 confront Michael Crowe with the physical evidence proving 6 his guilt? 7 A. I don't know. 8 Q. Did Dr. Blum tell the police that they should 9 promise him leniency during the interrogation? 10 A. I don't know. 11 Q. Did Dr. Blum tell the police that they should 12 lie or deceive Michael Crowe? 13 A. I don't know. 14 Q. Did Dr. Blum suggest to the police that they 15 discuss the two Michael's segment that appears in the 16 interrogation? 17 A. I don't know. 18 Q. Did Dr. Blum suggest to the police that they 19 discuss with Michael Crowe the two paths that he could 20 travel? 21 A. I don't know. 22 Q. Did Dr. Blum tell the police that they should 23 tell Michael Crowe that he would be using prison showers 24 and restrooms in the presence of inmates or guards? 25 A. I'm sorry. Can you repeat that question. 26 Q. Did Dr. Blum tell the police to discuss with 27 Michael Crowe his using prison showers and restrooms in 28 the presence of other inmates or guards? Peterson & Associates Court Reporting, Inc. 232 1 A. I don't know if he said that specifically. I 2 think they did make a comment to that effect based on -- 3 according to Blum, based on what he said or influenced by 4 what he said about not liking to be alone, but I don't 5 know if those were his exact words. 6 Q. Do you have any information that when the 7 police discussed with Michael Crowe his using showers and 8 restrooms at the prison, that they formulated that through 9 their independent judgment as opposed to Dr. Blum telling 10 them to do that? 11 A. No. I'm only going with what Dr. Blum says in 12 his deposition, which is that he thought he had an impact 13 on that particular statement. I don't know. 14 Q. Do you have any information that the police 15 were the ones who decided to make those statements to 16 Michael Crowe as opposed to Dr. Blum telling them to make 17 those statements? 18 A. No, I don't have any information that the 19 police were the ones to decide initially. 20 Q. Did Dr. Blum tell the police they should 21 discuss with Michael Crowe the possibility he could have 22 committed the murder without remembering it? 23 A. I don't know. 24 Q. Did Dr. Blum discuss with the police that they 25 should ask Michael Crowe to write a letter apologizing to 26 his sister? 27 A. It appears to me that he did, that that 28 suggestion as my report says resulted from at least, in Peterson & Associates Court Reporting, Inc. 233 1 part, the input, suggestions and/or advice of Dr. Blum. 2 That opinion would be based on my reading of Dr. Blum's 3 deposition. I believe he acknowledged something to that 4 effect in his deposition. 5 Q. Did Dr. Blum tell the police that they should 6 have Michael Crowe write a letter apologizing to his 7 sister? 8 A. I don't believe Dr. Blum says that's what he 9 did in his deposition, but that the letter was written 10 sometime after he made a comment about children having a 11 tough time talking and maybe drawing or writing something 12 instead, but I don't know whether he made that specific 13 suggestion to the detectives. 14 Q. What strategies and techniques of Dr. Blum's 15 were used in Joshua Treadway's interrogations? 16 A. I don't know. 17 Q. What strategies or techniques of Dr. Blum's 18 were used in Aaron Houser's interrogation? 19 A. I don't know. 20 Q. What is your opinion as to why the police 21 believed Aaron Houser was involved in Stephanie Crowe's 22 murder? 23 A. I may be wrong, but my opinion would be that 24 when they discovered the knife under Treadway's bed, they 25 traced it to Houser, and that's where Joshua Treadway had 26 gotten it. Once they knew it was Houser's knife, they 27 assumed he was involved in the conspiracy. 28 Q. Anything else? Peterson & Associates Court Reporting, Inc. 234 1 A. Well, Joshua Treadway's interrogations where 2 they get information about Aaron Houser and then there is 3 that controlled phone call with Aaron Houser, but unless 4 I'm not recalling something at this late hour of the 5 deposition, I believe that's the source where Aaron Houser 6 enters the picture. 7 Q. In the first interrogation of Joshua Treadway, 8 he tells the police that Aaron Houser gave him the knife 9 and that the knife was used to kill Stephanie Crowe? 10 A. Correct. 11 Q. That occurred on January 27th and 28th? 12 A. Correct. 13 Q. Which police officer believed that Aaron Houser 14 may have been involved in the murder based upon Dr. Blum's 15 comments regarding Charles Manson? 16 A. I don't know. 17 Q. Is there any police officer who believes 18 Aaron Houser was involved in this murder because of 19 Dr. Blum's comments regarding Charles Manson? 20 A. I don't know. 21 Q. Do you have expertise that would assist the 22 jury in evaluating how Dr. Blum's comments regarding 23 Aaron Houser influenced this investigation? 24 A. Well, I assume that would be for a judge to 25 decide, not me. I would have to know more about the 26 specific about what Dr. Blum did or allegedly did say. 27 Q. If he made a comment to a police detective 28 referring to Aaron Houser as a Charles Manson wanna be, Peterson & Associates Court Reporting, Inc. 235 1 do you have expertise that would allow you to render an 2 opinion regarding that comment? 3 A. I don't know how -- it would depend on what 4 expertise a trier of fact thinks is relevant to that 5 comment. If we imagine hypothetically that that is the 6 only comment that was made and the detectives said it was 7 enormously influential in their decisions and presumptions 8 and led to their interrogation, then I might have 9 expertise that could talk about the general context of the 10 interrogation, how that might fit or not fit into typical 11 interrogation practices. 12 If, on the other hand, the detectives were to 13 say that Blum made that one comment and it had absolutely 14 no affect on anything or if the court were to find that, 15 the detectives might say it might not be true. Presumably 16 my expertise might not be relevant. 17 It depends on, I think, first the findings of 18 fact and what they are and how they relate to the 19 presumptions that were made in the interrogation and in 20 the interrogation strategy. 21 Q. What is your understanding of the influence the 22 Charles Manson comment had on the police detectives' 23 conduct of this investigation? 24 MR. ARNELL: That's the interrogation with 25 Aaron Houser? 26 MR. LOEDING: Any part of this investigation. 27 THE WITNESS: It may have had an affect, but I 28 don't know specifically what impact it had on it. Peterson & Associates Court Reporting, Inc. 236 1 BY MR. LOEDING: 2 Q. What information do you have that it may have 3 had an affect? 4 A. I don't have any information that it did have 5 an affect. It may have had an affect because it was a 6 comment that demonized someone who became accused and 7 involved in the wrongful prosecution, but I don't have any 8 specific knowledge about if, in fact, it did have. I 9 would need to know more. 10 Q. Did you see the useage of the Charles Manson 11 comment by Dr. Blum utilized in any fashion in any of the 12 interrogations? 13 A. Not that I recall. Not a mention of that 14 comment. 15 Q. You're not a psychologist? 16 A. I'm a research psychologist. I'm not a 17 licensed psychologist. I don't practice psychology as a 18 therapist or counselor. 19 Q. Do you have a degree in psychology? 20 A. No. 21 Q. You've been a professor for eight and a half 22 years? 23 A. Correct, since 1994. Since the summer of '94 24 and I am a professor in the psychology department at UCLA. 25 Q. What did you do before that? 26 A. I was a graduate student from 1990 to 1994 and 27 a law student at UC Berkeley. From 1989 to 1990, I was a 28 paralegal in San Francisco. 1987 to 1989, I was a Peterson & Associates Court Reporting, Inc. 237 1 graduate student in the sociology department, University 2 of Chicago where I received the master's degree. 3 From 1985 to 1987, I was a paralegal in Oakland 4 for a small personal injury -- primarily a personal injury 5 law firm. From 1981 to 1985, I was undergraduate at UC 6 Berkeley. Prior to that, I was a student from 7 kindergarten to -- 8 Q. Where did you go to pre-college? Don't give me 9 the schools. Where did you live? 10 A. What is now called Santa Clarita Valley. It's 11 now its own separate city. At the time it was on the 12 northern outskirts of Los Angeles County. It was called 13 Sagus, then Canyon Country, now Santa Clarita. 14 Q. Besides being employed as a professor, expert 15 witness and paralegal, what other employment have you had? 16 A. I've been employed as a receptionist. I've 17 been employed as a research assistant, as an undergraduate 18 a graduate student. As a high school student, I worked in 19 a pharmacy. I worked as a fast food worker at Taco Bell. 20 I think that's it. 21 Q. Where were you employed as a receptionist? 22 A. The California Alumni Association on the UC 23 Berkeley campus, probably 1983 to 1985 part time while I 24 was going to school at Berkeley. 25 Q. Have you discussed this case with 26 Dr. Ofshee? 27 A. I have discussed this case with Dr. Ofshee, but 28 not recently. It's come up in conversation over the Peterson & Associates Court Reporting, Inc. 238 1 years. He was involved in two of the three criminal 2 defendants' cases, now plaintiffs, and I was involved in 3 one. 4 Q. Has Dr. Ofshee told you why he has not been 5 retained as an expert by the plaintiffs in this case? 6 A. No. I haven't talked to Dr. Ofshee. 7 Q. Have any of the attorneys for plaintiffs told 8 you why they have not retained Dr. Ofshee as an expert in 9 this case? 10 A. No. 11 Q. Do you have any understanding as to why 12 Dr. Ofshee was not retained as an expert in this case? 13 A. Well, my guess would be that the plaintiff's 14 attorneys made a decision and they decided to go with me 15 perhaps because I was local or perhaps they had some 16 knowledge that would lead them to prefer me over 17 Dr. Ofshee. I don't know. 18 Dr. Ofshee is a very well regarded expert and 19 it's my understanding he is the expert in the 20 prosecution's case against Richard Tuite and I wouldn't 21 personally, although I don't know the details. I would 22 never interpret a decision not to retain Dr. Ofshee or to 23 retain me instead is anything reflecting on Dr. Ofshee or 24 his many accomplishments. 25 Q. This book you're writing, "Inside The 26 Interrogation Room, The Real World of Police 27 Questioning" -- 28 A. Correct. Peterson & Associates Court Reporting, Inc. 239 1 Q. What is that book about? 2 A. It's about the history and sociology and 3 psychology and law of interrogation and confession 4 primarily in the 20th Century. 5 So what I want to do is look at how 6 interrogation has evolved and changed over time from the 7 old days of the third degree to the development and 8 implementation of the lie detector, interrogation training 9 manuals to the '60s when Miranda was implemented and into 10 the '80s and '90s and early 21st Century when the 11 psychological methods of interrogation have become 12 increasingly sophisticated and into the age of DNA. 13 We've learned definitively there are false 14 confessions and they occur at a higher rate than we 15 otherwise would have guessed. 16 The book, however, is not about false 17 confessions primarily. There's one chapter. It's 18 primarily about the phenomenon in police interrogation in 19 America, how it's evolved and changed and been impacted by 20 historical developments as well as the law. 21 Q. Do you have any plans to discuss this case in 22 that book? 23 A. At the moment, no, I don't have any plans to 24 discuss this case in that book. It's certainly possible 25 that I would discuss this case in that book. 26 As I mentioned, there would only be one chapter 27 on false confessions as the book is currently outlined and 28 progressing. If I did mention this case, it would only be Peterson & Associates Court Reporting, Inc. 240 1 in that context. 2 Q. When you were observing real life 3 interrogations by the Oakland Police Department, when was 4 that? 5 A. That was -- I believe I started in December of 6 1992 and I ended in August of 1993. 7 Q. That was in conjunction with your Ph.D.? 8 A. Correct. That was part of the primary research 9 for the doctoral dissertation. 10 Q. The Oakland Police Department didn't solicit 11 any advice from you as to how they should conduct any of 12 those interrogations? 13 A. The Oakland Police Department didn't. The 14 Hayward Police Department, which was a police department 15 that gave me interrogation videotapes to review after I 16 left the Oakland Police Department in 1993, and they gave 17 me case files on those 30 interrogations and Vallejo had 18 done the same thing. 60 videotaped interrogations. 60 at 19 Hayward and 122 at Oakland. 20 The Hayward Police Department asked me to come 21 give a lecture to their detectives based on what I learned 22 and tell them what I thought they could do differently to 23 improve their interrogation techniques to successfully 24 elicit confessions from reluctant guilty suspects. 25 Q. You did that back in 1993? 26 A. I believe so, yes. 27 Q. Was there any manual or pamphlet or anything 28 that you created with regard to that presentation at the Peterson & Associates Court Reporting, Inc. 241 1 Hayward Police Department? 2 A. No. I may have created notes and, if I did, I 3 don't know whether they're still available, whether I 4 preserved them. It was almost a decade ago, but I would 5 not have created a manual. 6 Q. Entitled "How to More Effectively Elicit 7 Confessions"? 8 A. If that's what it says on the CV, that's 9 correct. 10 Q. What did you tell them with respect to that? 11 A. I don't recall specifically what I told them. 12 I do recall they wanted me to talk about my experience 13 observing Oakland and Vallejo and Hayward, so I think that 14 part of that presentation, if not most of the 15 presentation, would have been just a description of what I 16 observed and I did quantify what I observed, what 17 percentage of suspects invoke the Miranda rights, what 18 percentage waive, what techniques were used. 19 I probably would have described quantitatively 20 or qualitatively and made suggestions about which things I 21 saw that I thought were most effective. 22 But part of the problem was that I didn't 23 complete writing the dissertation until August of 1994 and 24 so it may have been I was giving a talk at that time 25 before I fully analyzed my data and I was in the process 26 of analyzing the data. 27 Q. Of the 122 interrogations you witnessed at the 28 Oakland Police Department, how many of those were Peterson & Associates Court Reporting, Inc. 242 1 coercive? 2 A. Four. At the time, I found four of those to be 3 coercive. I should say that I combined all sources on the 4 data, so I had 122 and 60, so when I counted the cases 5 that were coercive, it was 1 out of 182. I do not know 6 whether those four cases all came from Oakland cases. 7 Probably most of them did, possibly all of them. 8 Q. What did you do with respect to the four 9 coercive interrogations? 10 A. I didn't do anything. I observed them and I 11 coded them. As a researcher who promised confidentiality, 12 I was there as an observer, not as a participant. It 13 would have been inappropriate for me to do anything about 14 that. 15 Q. It's possible the four coercive interrogations 16 were the actual live interrogations you viewed? 17 A. Correct. 18 Q. How many total videotaped interrogations have 19 you seen? 20 A. I can't give you an exact number. 21 Q. Just an estimate. 22 A. I would estimate over 200, maybe 300. 23 Q. I'm not sure it was a lecture or publication 24 regarding false confession, no expert. Does that ring a 25 bell? 26 A. I think it does. There is a forensic 27 newsletter -- what purports to be a forensic newsletter 28 put out by a psychiatrist in New York. His name is Peterson & Associates Court Reporting, Inc. 243 1 Michael Wellner and it's called the Forensic Echo. 2 At one point, he asked me to write a 3 commentary, like a page commentary on a case involving a 4 false confession expert or false confession allegation and 5 I'm trying to find this on my CV. I wrote that one page 6 commentary for his Forensic Echo newsletter and I think 7 that's what you're referring to. 8 Q. The reason I ask you about it is the title. 9 What do you mean by no expert? 10 A. My recollection is that somebody testified in a 11 case purporting to be a false confession expert and they 12 did not know the basics of that false confession research 13 and then there was an appellate court decision that was 14 pillering their expertise and I have to review this. 15 I was essentially saying the person didn't know 16 the field. They weren't appropriate for the case. I may 17 have said what an appropriate witness would talk about or 18 the areas an appropriate witness would know are the 19 following. 20 This is what we do know very briefly since it 21 was maybe a page and, of course, I could provide this to 22 you if you wish. I haven't read it in probably three or 23 four years. 24 Q. That's not necessary. Do you have another 25 publication or presentation regarding an evidentiary 26 privilege for academic researchers? Does that ring a 27 bell? 28 A. Yeah. Peterson & Associates Court Reporting, Inc. 244 1 Q. That's about -- 2 A. That would have been a number of years ago and 3 journalists have a very limited evidentiary privilege. 4 That was my understanding at the time. 5 So if they observed something or conduct an 6 interview and a court wants to get a hold of that, they 7 can be compelled to do it and they will argue that that 8 privilege should shield them from the subpoena and quash 9 the motion. 10 I believe the presentation I was giving was 11 arguing that if we want to have researchers get access to 12 highly controversial settings like police interrogation 13 rooms, we've got to give them an evidentiary privilege 14 because the interrogators could actually be harmed by 15 letting the researcher observe their interrogations if 16 they observe the interrogators break the law or do 17 something improper and then they are compelled in a 18 criminal court to testify about what they observed. 19 They're put in the contradictory situation of 20 having promised the police confidentiality and being 21 compelled by the court to violate that confidentiality. 22 Q. In your view, the person observing the 23 interrogation under those circumstances should not be 24 compelled to come into court and criticize the police 25 officer? 26 A. I was playing with the idea, and that was my 27 view at the time. I haven't given it much time and it was 28 more general, that we have to think how much we value Peterson & Associates Court Reporting, Inc. 245 1 research people in highly controversial settings, and if 2 we value that research and the access that makes that kind 3 of research possible, then we cannot let courts compel 4 those researchers to come in and finger people and violate 5 promises of confidentially. As society, we have to decide 6 which is more important. 7 Q. On Page 16 of your resume, you have a section 8 entitled "Formal Police Interrogation Training"? 9 A. Correct. 10 Q. The last time you received any of that was in 11 1993? 12 A. Correct. 13 Q. Was all of your formal police interrogation 14 training associated with your Ph.D. work? 15 A. Yes. 16 Q. The Federal Law Enforcement Training Center, 17 who sponsored that? 18 A. They actually invited me to attend so I don't 19 know if that's what you mean by sponsored. They had 20 contacted my advisor at the time about an article he and I 21 had written and asked for permission to reprint it and 22 then they found out I was a graduate student, they invited 23 me to attend. 24 Q. Were they training law enforcement personnel at 25 that particular -- 26 A. Yes. It's a massive center and they train all 27 federal police with the exception of the FBI or at least 28 at the time they did. Peterson & Associates Court Reporting, Inc. 246 1 Interrogation is just one of the many things 2 that they trained federal police to do. It was literally 3 a massive compound, probably similar to Quantico, which 4 I've never been to. 5 Q. The San Mateo Community College, was that also 6 training law enforcement? 7 A. Correct. 8 Q. What's your affiliation with the Long Beach 9 Police Department? 10 A. They invited me to be on an advisory committee 11 to the chief which is comprised of academics. They have 12 the philosophy that they want to bring outside academics 13 in, inform them what's going on. It's an extension of 14 criminal policing and get the input. 15 There's professors of business, professors of 16 criminal justice, professors of sociology, professors of 17 psychology from various universities in Southern 18 California, primarily in the Orange County, Los Angeles, 19 Long Beach area. 20 Q. The Long Beach Police Department is the only 21 California law enforcement agency you've given a seminar 22 to in the last nine years? 23 A. That's probably right. Yes, it's the Hayward 24 Police Department. That's correct. 25 Q. Was any member of your family in law 26 enforcement? 27 A. No. 28 Q. In all of your publications -- Peterson & Associates Court Reporting, Inc. 247 1 A. Actually, can I modify that. My mother's 2 husband who I'm not biologically related to worked for the 3 Los Angeles Police Department as a mechanic and then a 4 supervisor of mechanics. He recently retired. 5 Q. In any of your publications, is the Crowe case 6 discussed? 7 A. It's possible. I don't think so. It's 8 possible, but I don't think so. It's possible it was 9 mentioned in passing, but I don't think so. 10 Q. But in your classes that you teach, I think you 11 said that there was some six-part Union-Tribune series on 12 the Crowe case that was presented to your class? 13 A. Correct. 14 Q. And when was this? 15 A. Most recently, this was in the fall of 2002. 16 I've taught using the Crowe case the last three times I've 17 taught it. Either once or twice in 2002 and once or twice 18 in 2001 and each time I have assigned the six-part series 19 that was in the San Diego Union-Tribune in 1999, May. 20 I think I supplemented it with a more recent 21 article by Sauer and Wilkens updating that this year. 22 MR. LOEDING: I'm going to be a man of my 23 word. 24 MR. ARNELL: Better than your word. 25 MR. LOEDING: Thanks, Doctor. 26 (The deposition concluded at 6:55 p.m.) 27 * * * 28 Peterson & Associates Court Reporting, Inc. 248 1 2 3 DECLARATION UNDER PENALTY OF PERJURY 4 5 I, Richard Leo, Ph.D., do hereby certify under 6 penalty of perjury that I have read the foregoing 7 transcript of my deposition taken on February 5, 2003; 8 that I have made such corrections as appear noted herein, 9 in ink, initialed by me; that my testimony as contained 10 herein, as corrected, is true and correct. 11 DATED this _____ day of _____________, 12 2003, at ___________________________, California. 13 14 15 16 17 18 19 ________________________ 20 RICHARD LEO, PH.D. 21 22 23 24 25 26 27 28 Peterson & Associates Court Reporting, Inc. 249 1 STATE OF CALIFORNIA ) 2 :ss. 3 COUNTY OF SAN DIEGO ) 4 5 I, Shelley Lynn Schniepp, Certified Shorthand 6 Reporter, Certificate No. 5487, do hereby certify: 7 That the witness in the foregoing deposition 8 was by me first duly sworn to testify to the 9 truth; that the deposition was then taken before 10 me at the time and place herein named; that said 11 deposition was reported by me in shorthand and 12 transcribed, under my direction; and that the 13 foregoing is a true record of the testimony. 14 I do further certify that I am a 15 disinterested person and am in no way interested 16 in the outcome of this action or connected with or 17 related to any of the parties in this action or to 18 their counsel. 19 In witness, I have set my hand this 3rd day of March, 20 2003. 21 22 23 24 ___________________________ 25 Shelley Lynn Schniepp 26 CSR No. 5487 27 28 Peterson & Associates Court Reporting, Inc. 250