West Memphis Three Trials:
The Jesse Misskelley Trial (January 26 - February 4, 1994)

Richard Ofshe
Witness for the Defense
February 2, 1994

Misskelley Trial - Defense's Opening Statement - January 26, 1994 Misskelley Trial - Testimony of Bryn Ridge - January 26, 1994 Misskelley Trial - Testimony of Victoria Hutcheson - January 28, 1994 Misskelley Trial - Testimony of Marty King - February 1, 1994 Misskelley Trial - Testimony of Warren Holmes - February 1, 1994 Misskelley Trial - Testimony of Dr. Richard Ofshe - February 2, 1994 DOCTOR RICHARD OFSHE
having been first duly sworn to speak the truth, the whole truth, and nothing but the truth, then testified as follows:

Q. Please state your name for the Court.

A. Richard Ofshe.

Q. And what do you do for a living, Mr. Ofshe?

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

Q. Okay. Can you tell the Court and the jury a little about about your education and background?

A. I received a Bachelor's Degree in psychology from Queens College of the City University of New York, and then a Master's Degree in sociology from the same institution, and then a Ph.D. in the sociology department of Stanford University with a specialty in a sub-field called social psychology.

Q. Would you explain to the Court and the Jury what social psychology is?

A. Social psychology is a specialty area that is found both within psychology and within sociology. It has to do principally and particularly the part that I specialize in -- it has to do with influence, decision making, belief, and attitude change, techniques of pressure and coercion and I specialize particularly extraordinary techniques control and influences.

Q. Do you have any experience or training in the area of influence and more specifically in the area of influence with regard to police interrogation?

A. All my work for the last thirty years or more has been on the subject of influence starting out doing work in traditional problems -- excuse me -- traditional problems in social psychology having to do with decision making, group influence, interpersonal influence.  Then starting about the early part of the nineteen seventies I became interested in complex real world systems of influence. That is to say not laboratory research, but rather studying on-going very complicated influence environments and particularly those kinds of environments that have massive effects on individuals.  So initially I did a lot of work for about ten or twelve years studying what are called cult groups. That is to say groups that are very strongly organized, that exert enormous pressure on individuals and that can lead individuals to change the way in which they see the world and be willing to take part in activities that they otherwise would ordinarily not take part in.  During -- and I specialized in studying cult groups that generate violence. During that period of time I did a great deal of work often involving the analysis of groups that led their followers to commit murders. I did a lot of work for prosecutorial agencies, analyzing and prosecuting such crimes.  Then my interest in influence continued and I began to become interested in the study of police interrogation. Ah, police interrogation is the root of -- out of which various studied round the world procedures of influence groups -particularly techniques that have to do with coercing confessions from individuals and generally manipulating them in extraordinary ways.  And that work began in the late nineteen eighties and since then I've done a great deal of work and written about police interrogation tactics, in particular police interrogations that can and does lead to coerced and/or false confessions.

Q. Has any of your work been published, Doctor Ofshe?

A. Yes. I've published four or five books, and thirty or more articles in scientific journals, and presented papers at dozens of conferences over the years. The work on all of these subjects have been published.

Q. Are you familiar with a Doctor Gudjonsson?

A. Yes, I am.

Q. And how are you familiar with his work?

A. He's one of the other people who is a specialist in techniques of interrogation and influencing police interrogations.

MR. DAVIS: Your Honor, at this time if I may interrupt, as I understood it he is qualifying him as -or in the process of qualifying him as an expert. They're moving on to another area and I'd ask that I'd have an opportunity to voir dire the witness regarding his special qualifications.

THE COURT: Well---

MR. STIDHAM: Your Honor, I asked him about what has been published.

THE COURT: You're-asking about somebody else's work.

MR. STIDHAM: Your Honor, I was---

THE COURT: Right now if you're' qualifying him, then-- then go through his qualification, his vitae, and then pass him, and then if they've got any questions, then I'm going to allow them to voir dire.

MR. STIDHAM: I think my next question will clear this up, your Honor.

THE COURT: All right.


Q. Are you mentioned in Doctor Gudjonsson's book, "The Psychology of Interrogations, Confessions, and Testimony"?

A. My work is discussed in that book, yes.

Q. Did you contribute to the book in any form or fashion?

A. Well, he asked me to review certain chapters of the book and I reviewed them, and made comments, and then he thanked me in the introduction for doing that, and then he also discusses my work in the substance of the book.

Q. I also understand, Doctor Ofshe, that you've won a Pulitzer Prize?

A. I shared in the nineteen seventy-nine Pulitzer Prize for public service, yes.

Q. And what was that for-- I mean, what was the subject of your---

A. That was for work I did with the publisher of small weekly newspaper in West Marin County, California. We did an expose of a group called Synanon which started out as a drug rehabilitation. organization and. turned into a violent cult group that was assaulting and attempting to murder people in the immediate area. It became quite a major subject and that year we were lucky enough to be awarded a Pulitzer Prize.

Q. Are you a member of any professional associations?

A. Yes. I'm a member of the American Psychological Association, the American Sociological Association, the American Psychological Society, the Sociologic Practice Association, and the Pacific Sociologic Association.

Q. Have you ever served as a consultant to any law enforcement agencies?

A. Oh, yes, I have. Starting in nineteen seventy-nine I served as consultant to Marin County Sheriff's Department and then subsequent to that the office of the Attorney General of the State of California, the office of the Attorney General of the state of Arizona, the United States Department of Justice -- both the tax division and the criminal division -- the Prosecuting Attorney of Jefferson County, West Virginia, the Los Angeles District Attorney's office, the Internal -- that's not a law enforcement agency, I guess. The United States Attorney's office in West Virginia, the Thurston County, Washington, prosecutor's office, currently the State's Attorney's office in Fort Lauderdale, Florida, and again for the United States Attorney's office in West Virginia'

Q. Have you ever testified on behalf of the prosecution in a criminal case?

A. I don't believe -- I'll have to look at the list of cases in which I've testified.

Q. Well, I'll go on to the next question.  Do you lecture to groups regarding the influence of police tactics in false confessions?

A. Yes, I do. I'm -- in fact I've been asked to -- in May of this year to -- at the request of the Supreme Court of the State of Florida -- been asked to address for a half day a judicial conference in Florida on the subject of false confessions.

Q. Have you been involved in both civil and criminal cases dealing with false confessions and confessions in general?

A. Yes, I have.

Q. How many -- excuse me -- how many cases dealing with confessions have you been involved in?

A. Confessions specifically thirteen -- I've testified thirteen separate times. I've been involved in many more cases. Much of the work that I do is consulting work that doesn't necessarily culminate in testimony. That's why I wasn't certain whether I had actually testified in this criminal matter. I'm scheduled to the week after next, but I can't at this moment think of another example where I already have.

Q. Okay. Have you testified in court with regard to any confessions taken on the defense side? ....

A. Yes. Most -- most of the confession cases in which I've testified have been cases involving coerced or coerced false confessions and, therefore, my testimony has been principally for the defense in those cases.

Q. How many times have you been qualified as an expert in the area of influence and police interrogation? A. Twenty-five times.

Q. Twenty-five times? In both state and federal courts?

A. Yes, sir.

MR. DAVIS: Your Honor, if I might -- the question was: Qualified as an expert in the area of influence and police interrogations -- can we break that down? I didn't hear anything in the background as far as police interrogation.

THE COURT: Can you break it down?

Q. Have you been qualified as a expert by any court in the area of police interrogation tactics and influence on individuals during police interrogations tactics?

A. Yes. On influence in police interrogation in particular I've qualified and testified thirteen times. On influence in general I've been qualified and testified an additional twelve times making a total of twenty-five.

Q. Okay. Have these been in both state and federal courts?

A Yes, they have.

Q. Have you ever testified in the State of Arkansas?

A. Yes, I have.

Q. And where was that at?

A. In Fort Smith in federal court in a case brought by a young man and his family against a person named Tony Alamo who ran a cult group located in Fort Smith, and the case had to do with the beating of this child.

MR. STIDHAM: Your Honor, at this time we would ask that the witness be qualified as an expert in the area of police interrogation tactics and influence of people involved in police interrogations.

MR. DAVIS: Whether or not he's qualified as a expert is what we would like to address in voir dire.

THE COURT: All right.


Q. Doctor Ofshe, you are a social science professor at the University of California at Berkeley. Is that correct?

A. I'm a professor in the sociology department.

Q. Okay. And what-- so you teach sociology. Is that right?

A. I teach specifically courses in social psychology and courses on extreme techniques of influence including police interrogation.

Q. You are not a licensed psychologist, correct?

A. Ah, that's correct.

Q. Okay. You can't practice psychology in California or any other state, can you?

A. Ah --no, I don't practice clinical psychology which is -- what is generally licensed.

Q. Okay. And would it be a fair statement to say that psychology is different from social -- sociology in that sociology deals with group activities?

A. No, that's a very general and unhelpful definition. Social psychology which is an area that I work in is an area that's represented in both disciplines and I'm a member of the professional association of both disciplines. Both disciplines maintain sub-sections called social psychology and social psychology deals with a very special set of topics that has to do with influence on individuals, decision making, attitude change, interpersonal and group pressure.

Q. Are you a licensed social psychologist?

A. It's not necessary to be licensed to be a social psychologist because I don't treat anyone.

Q. Is there such a thing as a licensed social psychologist?

A. NO.

Q Okay. In other words---

A. Because it does not engage in the treatment of people it's generally not licensed ....

Q. Okay. So there are sociologists and there are people that hold themselves out to be social psychologists, correct?

A. People who are members of the requisite professional associations and members of the sub-sections that are specialties in social psychology and I'm a member of both and in each case as a social psychologist.

Q. How many states and how many courts have refused to accept you as an expert in this work?

A. No state has ever refused to accept me as an expert.

Q. How many courts?

A. There's one case in which a line of testimony to which my testimony would have been foundational was rejected. It has to do with whether or not a certain theory---

Q. Where was that?

A. That was in California.

Q. Okay.

A. That had to do with whether or not a certain line of testimony was appropriate for the insanity defense and in that case the judge barred that line of testimony.

Q. As far as -- what is it that you studied in relationship to this case?

A. In this case in particular I have studied the following materials: The police reports and notes of Detectives Gitchell, Ridge, and Durham, the transcript of the first tape recorded interrogation of Jessie Misskelley, the transcript of the second tape recorded interrogation of Jessie Misskelley. I've listened to the tape recordings of both interrogations. I studied the transcript and the video recording of an interview of Buddy Lucas. I've studied the treatment records of Jessie Misskelley at East Arkansas Mental Health Center. The transcript of a hearing in which Detective Ridge sought his search warrants from Judge Rainey. I attended a hearing in this case on January the thirteenth, nineteen ninety-four at which I heard and saw the testimony of Detectives Allen, Durham Ridge, and Gitchell with respect to what occurred during the interrogation. And I subsequently reviewed the transcripts of that hearing and then I interviewed Jessie Misskelley on December the fifteenth, nineteen ninety-three, and have subsequently carefully reviewed, and studied, and analyzed the transcript of that interview.

Q. How long was that interview?

A. Three hours, more or less. It may have a bit more. It may have been a bit less. I don't have the -- I don't have that -- it might be helpful. It worked out to an eighty-seven page transcript.

Q. You talked with Jessie Misskelley for three hours. Is that right?

A. No. I talked with Jessie Misskelley for the length of time it took to produce this transcript here.

Q. And you reviewed testimony of the police officers?

A. I reviewed their reports. I reviewed the actual transcript of the one part of the interrogation that -- or the two parts of the interrogation that were tape recorded, I studied and analyzed their notes, studied and analyzed their testimony.

Q And what scientific basis is it that you intend to give an opinion on?

A. Well, the first thing that's necessary is to try to get a clear picture of the history of the interrogation of exactly what happened step-by-step. Subsequently, that---

Q if you could---

A. Yes.

Q What scientific basis and what scientific tests are you basing your opinion on that you-- that the defense is proposing that you testify to?

A. It is based on the literature on the subject of influence, and particularly what is known about techniques of influence, the conditions that lead up to coerced confessions. The analysis that I will do on this involves specifying the pattern, what happened during the interrogation---

Q. --What scientific basis is it based on? Not what your procedure is, but what scientific basis is your opinion grounded in?

A. The opinion is grounded in the research on what is known about the conditions that lead up to coerced confessions. There are patterns of conduct that are known to lead to coerced confessions. There are consequences that follow from those patterns that are generally used to identify a coerced confession. There are criteria that are used to judge whether or not a confession is coerced or is not coerced, and whether it is a confession that appears to be the product of influence or appears to be the product of memory.

Q. Again -- is that -- is that based on empirical studies?

A. Oh, yes.

Q. And those empirical studies would have to determine which confessions were coerced and which were not coerced in order for those studies to have any validity, correct?

A Well there are studies of confessions---

Q Would you answer my question, please, sir? You would -- you would, have to determine-- someone would have to determine was a confession coerced or was it voluntary before those studies would have any validity?

A. The studies of confessions are often broken down into---

MR. DAVIS: Your Honor, could you ask him---

THE COURT: Answer yes or no and then -- then I'm going to allow you to explain your answer.


THE COURT: If you can, answer yes or no. If you can't, Just say, "It's not capable of being answered yes or no."

THE WITNESS:. It's not capable of being answered yes or no. I could probably answer your question if you'll allow me to explain why it's not capable.

THE COURT: Well, I don't want to allow a long narrative discourse. If you can answer the question concisely then proceed.

A. The validity -- the truth or falsity of a confession is certainly important and sometimes it's possible to know whether a confession was in fact true or false. There have been studies -- a lot of studies are done on what are called disputed confessions as opposed to undisputed confessions, and the undisputed confessions are more important because it is known whether or not the confession was true or false.

Q. Well, if your studies are based -- is there empirical data that you' re basing your opinion on?

A. Yes.

Q. Okay. Those studies would have to say -- you would have to presume that a confession was coerced for those studies to have any validity, correct?

A. No. Sometimes one knows that a confessional is false and therefore coerced because of -- of independent factors, such as knowing -- eventually identifying who the real killer might be.

Q. But in those studies for those to have any value at all scientifically, somebody has to make a determination that the confessions were coerced or not, correct?

A. Not necessarily because we know the conditions that lead up to confessions that are undisputed where individuals give true confessions and do not recant them, and we know under other circumstances when People give false confessions which are subsequently proven to be false because the perpetrator is in fact caught.

Q. Well, let me ask you this: How would you characterize the situation where you said it was a false confession and a court determined that it was not a false confession, where would you categorize that?

A. I don't know that I've ever said that something was a false confession. I know I've testified as to whether something was coerced or not.

Q. So you -- as far as this talk previously about false confessions you don't deal in that area?

A. No. I -- the question suggested to me, you're asking me about a time when I testified in a court that a confession was false, and it was judged the other way and I don't believe that that's ever occurred.

Q. Have you not testified as to inaccurate contents of confessions in a court and the jury disregarded that and ruled another way?

A. I testified I believe in one case in which I testified that in my opinion a particular confession was coerced and the confession was not suppressed and I've testified in other cases where it is my opinion that a confession was in fact coerced and the court found that way.

Q. Okay. Well---

MR. CROW: May we approach the bench, please?

THE COURT: All right.


MR. CROW: Your Honor, is he qualifying this witness or is he cross examining him?

MR. DAVIS: Your Honor---

THE COURT- Well, I'm going to be honest, gentlemen, I'm real interested in knowing what a sociologist is going to testify to that would aid and benefit the jury and what is the scientific basis of that testimony. It seems to me that you've called this witness to give an opinion that the confession was coerced---

MR. STIDHAM: That is---

THE COURT: ---and that it was involuntary.

MR. STIDHAM: That's exactly right, your Honor.

THE COURT: And I think that -- that's a question for the Jury to decide and I'm not sure I'm going to allow him to testify in that narrow framework. I can see him having value testifying that these are common techniques employed by the police overrides one's free will. I found such and such of these conditions prevailing here and things of that nature, or maybe group dynamics of a cult.

MR. CROW: Your Honor--

THE COURT: But I'm not sure I'm prepared to allow him to testify that in his opinion it's coerced and therefore invalid.

MR. CROW: Your Honor---

THE COURT: I mean, what the hell do we need a jury for?

MR. STIDHAM: He's not going to testify whether or not the confession is false or true or whether the defendant is guilty or innocent. He's going to testify to the voluntary nature of the confession -- statement to the police -- whether or not it was coerced. That's an issue that the jury has to decide and that's what an expert witness is for, to help the jury decide these issues.

MR. DAVIS: No. No, Judge, that's where -- that's the real crux of the matter whether-- the confession was coerced or not, doesn't make -- whether it was the truth. It's whether it was the truth and they're trying to get through the back door what they can't get through the front door.

MR. CROW: Disagree, your Honor. I---

MR. STIDHAM: Your Honor, that's not the correct statement of the law.

MR. CROW: The law recognizes--

THE COURT: No. The -- the -- the -- I mean, of course, I've ruled that it was voluntary. The jury, I guess, could go back and decide that it wasn't. If that's the issue you're talking about

MR. CROW: That is what Arkansas law--

THE COURT: ---but the question of whether or not psychological ploys or tools were used to get a guilty person to give a true statement, now that's another issue.

MR. STIDHAM: Your Honor, that's not what he's going to testify to.

THE COURT: I don't know what you've got him here for. What is he going to testify to? I want to know.

MR. STIDHAM: Your Honor, he has an opinion as to whether or not the statements made by Mr. Misskelley to the West Memphis Police Department were voluntary.

THE COURT: Is that the way you're going to couch the question to him and is that the way he's going give his opinion. In my opinion they were involuntary.

MR. STIDHAM: Yes, your Honor.

THE COURT: That the police used subtle techniques to cause an innocent man to confess-- to confess.

MR. CROW: He's not going to say whether he's innocent or not, your Honor.

MR. STIDHAM: Your Honor, that's for the Jury to decide.

MR. DAVIS: Judge, what we've got -- they're trying to get through the back door what they can't get through the front. It's the same way.

MR. STIDHAM: Your Honor---

THE COURT: Well, unfortunately they might be able to do that under the status of our law.

MR. DAVIS: Your Honor, the concern that I have here is that for there to be any empirical data and for him to actually claim to have any scientific basis, somebody somewhere has to categorize these cases as false confession cases or coercion cases. And what I'm saying is that this man along with his cohorts in the field have -- they label things to -- to back up or substantiate their particular theories, and -- and---

THE COURT: Well, I think all of those go to the weight of his -- weight of his testimony.

MR. STIDHAM: That's what -- that's what experts do. If they want to bring an expert to counter them, they can!.

THE COURT: I think you can call your man to say in his opinion that there was nothing that they did out of the ordinary and that the statement was freely and voluntarily made.

MR. STIDHAM: That's the correct statement of the law, your Honor.

THE COURT: Well, we might as well get on with it. I'm going to let him testify but I'm not about to let him testify that in his opinion Misskelley is innocent--

MR. CROW: No, your Honor.

THE COURT: ---that his confession was a lie and false. I'm not going to allow him to do that.

MR. STIDHAM: He has an opinion as to what--

THE COURT: Don't even try to ask him whether or not he has an opinion whether the confession was true or false, because I'm ruling that he cannot do that.

MR. DAVIS: I want him cautioned before we proceed any further so that he doesn't blurt that out.

MR. CROW: Your Honor, can you give us two minutes?

THE COURT: Okay. Well, do you understand what I'm saying? I'm saying that there are areas where he has expertise that might be of some benefit and that is in the areas of group dynamics, in the area of -- of possibly coercive or -- or techniques that can be employed to make someone testify -- or -- or give a statement. Now, whether or not that statement true or false is another matter.

MR. CROW: That's not what he's testifying about, your Honor.

THE COURT: And I'm not going to allow him to testify that, In my opinion these officers illegally exacted or coerced a confession from his either. I'm not going to allow him to testify to that.

MR. STIDHAM: That's the Court's job, your Honor. That's the jury job.

THE COURT: Well, that's exactly right. So what is he going to testify to?

MR. STIDHAM: He's going to testify as to -- he has an opinion that this -- the statements made by the defendant were involuntary and a result of psychological coercive tactics employed by the West Memphis Police Department.

THE COURT: Were involuntary in what sense?

MR. STIDHAM: That's what he'll testify to.

THE COURT: Well, I want to know. What -- in what sense?

MR. DAVIS: Could we move in chambers?


THE COURT: All right, ladies and gentlemen, you can have about a fifteen minute recess with the usual admonition not to discuss the case.


THE COURT: All right, court will be in session. All right, ladies and gentlemen, you have heard a number of persons testify that have been presented and characterized as expert witnesses and perhaps will hear some more, and in that regard I'm going to give you an instruction of law that you should consider and it will again be read to you at the time all of the instructions are given.  An expert witness is a person who has special knowledge, skill, experience, training, or education on the subject to which his testimony relates. An expert witness may give his opinion on questions and controversies. You may consider his opinion in the light of his qualifications and credibility, the reasons given for his opinion, and the facts and other matters upon which his opinion is based. You are not bound to accept an expert opinion as conclusive, but you should give it whatever weight you think it should have. You may disregard any opinion testimony if you find it to be unreasonable.  All right, gentlemen, let's proceed.

MR. STIDHAM: Your Honor, may I approach the bench?



MR. STIDHAM: I assume that the witness has now been qualified and I can go on with my questioning?

THE COURT: Again, I never make that statement. I Just tell you to proceed.

MR. STIDHAM: Thank you.


THE COURT: Do you have any additional voir dire?

MR. DAVIS: No, sir, your Honor, not at this time. We'll reserve it for cross examination.

THE COURT: All right. All right, you may proceed.

MR. STIDHAM: Thank you, your Honor.

Q. How many confessions has you analyzed, Doctor?

A. I've been requested to analyze a total of forty-eight separate interrogations leading to confessions.

Q. Okay. Have you ever taken a coerced confession or a false confession from someone?

A. Yes, I have.

Q. Can you give us an example of that?

A. In one particular case I was called in by the prosecution with the putting together the investigation of what was believed to be a multiple murder and sex abuse crime case. In the course of my work on that case -- again at the request of the prosecution -- I had access to an individual who was confessing to all manner of heinous crimes.  In the course of my interviewing of him I began to become suspicious as to the validity of the confessions that he had been giving now for five months on a series of subjects. At that point after hearing from him what happened during the interrogation and certain other things about his reactions to the interrogation, I determined that there was a possibility that he had been falsely confessing and I determined to run an experiment.  I then invented a crime on the spot and told him that one of his sons and one of his daughters had said that he had done something in particular to them, and asked him if he could remember it. Initially he said, "No." He then started using the techniques that he had been using to try to remember these events and I simply allowed him to do that -- in fact, sent him away and asked him to continue doing this alone and within twenty-four hours using the techniques that he had learned in the course of his five month long interrogations, he produced for me the next day a three page written detailed confession including dialogue that supposedly happened during the crime -- to a crime that never happened that I invented and daughter who was supposedly involved in it confirmed never happened.   I then concluded that this was a highly suggestible individual because I had now succeeded with very minimal effort in eliciting a false confession from him. 

Q. Have you been ever -- excuse me -- have you been able to break down your work into percentages with regards to analyzing these confessions and the work you've done with confessions?

A. Yes, I have. Of the forty-eight separate interrogations I have been asked to analyze, fifty-five percent of the time my conclusion has been that the statement that was made was voluntary or it was impossible for me to make a determination and forty-five percent of the time that the particular statement that was elicited was either what's called a coerced compliant confession or what's called a coerced internalized confession -- these are two different types of confessions generally two different types of false confessions.

Q. Could you tell the jury the difference between these types of confessions?

A. In the literature on interrogation and confession it was recognized that there are two kinds of involuntary and false confessions. One kind is called coerce compliant. This is a an-- inaccurate -- that is to say false statement -- that comes about because an individual no longer stand the strain of the interrogation and knowingly gives a statement that they know to be untrue.  The other kind is much more complicated. It's called: a coerced internalized confession and this kind of statement arises when an individual actually becomes convinced that he or she has committed a crime that they had nothing to do with.  The second kind of confession comes about out of the use of very special or very extraordinary influence techniques that operate in a particular way. It can occur by accident in the course of an ordinary police interrogation, but if it occurs certain things have to be present in the interrogation and they have to happen in a certain sequence in order to persuade someone that they've committed a crime of which they are innocent.  The far more common kind of coerced statement is the coerced compliant statement when the individual simply gives up and agrees to say whatever they need to say because they can no longer stand the strain of what's going on.

Q. Doctor, is it possible for police interrogation tactics to produce a false confession?

A. Yes. I don't know of any -- any researcher, any scholar in this area -- who works in this area who does not acknowledge that false confessions come about in the course of police interrogation, and in fact, a few years ago there was a landmark study of miscarriages of Justice in capital cases in American history. A study done by Professors Bideau (phonetic) of the University of Michigan and Ratalid (phonetic) of the University of Florida published in the Stanford Law Review.  In this study they identified three hundred and fifty examples of miscarriages -- false convictions in capital cases in American history. And using the standards that they developed to judge whether or not a particular conviction was a miscarriage of justice -- in other words an improper conviction -- they identified three hundred and fifty examples in which by their criteria, which often had to do with the real killer being found, the person ultimately being pardoned -- standards of that sort -- they identified three hundred and fifty examples where the jury had found someone guilty who was in fact innocent.  In that study nineteen percent of the miscarriages were caused by false confessions given by---

MR. DAVIS Your Honor---

A. ---the suspects.

MR. DAVIS: ---I have an objection to make and I think it would be more appropriate if I made it at the bench rather than---

THE COURT: All right.


MR. DAVIS: The Court laid down certain ground rules and now we're talking about percentages in terms of false -- false confessions. We aren't talking about opinion.

THE COURT: I'm interpreting this as an -- as an attempt to -- to use coercive techniques on the jury to suggest to them that this is a false confession and that there is danger on their considering the confession and that it suggests to them that they have to be very careful not to make a three hundred and fifty error ,whatever the percentages were.

Gentlemen, that's -- that's a -- I'm---

MR. FOGLEMAN: I thought this would -- what they did is exactly what the Court had told them not to do.

MR. STIDHAM: No, your Honor, I asked the witness if there were empirical scientific studies and he was simply relating those to the jury.

THE COURT: Well, I don't care. You're still making inferences that by these statements that this particular statement was false and untrue.

MR. CROW: Your Honor, if I can interject. Yesterday I objected to questions that -- where Mr. Holmes stated that ninety-nine percent were real or something like that. That's empirical data that now the shoe is on the other foot.

THE COURT: Well, no, in that particular case I think you offered it or it came up through your all's testimony and he brought it out---


THE COURT: ---is the way I recall it.

MR. CROW: I don't think that's correct, your Honor.

THE COURT: Well, I may be wrong on that. This is totally different. This has done just exactly what I indicate I wasn't going to allow.

MR. DAVIS: Judge, and that's what's going to happen because of this witness as you surmised. He's very astute. He's very smart, and he's going -- he's going to slip around the ground rules and we're sitting here talking to jury in terms of percentages of cases in which there's been a false confession.

THE COURT: I'm going to sustain the objection.


THE COURT: Objection sustained.

MR. DAVIS: Your Honor, could we ask the jury to disregard this last -- to be admonished to disregard---

MR. STIDHAM. Your Honor, I would object to an instruction of that nature. The witness is merely relating scientific studies and empirical studies with regard to that issue.

MR. DAVIS: In an area---

MR. STIDHAM: I would be happy to move on and ask him about how he analyzes the---

MR. DAVIS: The concern we have, Judge, is we understood he was relating things that are outside the area of his expertise.

MR. STIDHAM: That's not at all the case, your Honor.

THE COURT: Go ahead. Move on to something else and I'll see.


Q. Doctor Ofshe, are certain individuals more susceptible to coercive police tactic than others?

A. Generally, it's been found that individuals who are lacking in self-confidence, low self-esteem are more persuadable and also more likely to respond to coercive tactics. Individuals who are mentally handicapped are also at risk to responding to coercive and overly persuasive tactics.

Q. Can you tell the jury what it is that you do when you analyze a `confession?

A. Ah, that -- that starts with determining whether or not the interrogation has been tape recorded, if the interrogation has been tape recorded in its entirety, then the analysis of the influence process during the interrogation is time consuming and -- is time consuming, but is fairly straightforward. When police agencies have not tape recorded the interrogation, the problem becomes much more complicated because it becomes necessary to try to reconstruct the events of the interrogation from the available information. So that in a case such as this case in which part of the interrogation was recorded and most of it was not, it becomes necessary to first try to identify what actually happened in the interrogation and the order in which things happened to then relate that to the statements that are undisputed. That is to say that parts of the interrogation which are recorded so that one can hook up the analysis or hook up the history of the interrogation as it occurred in the unrecorded part but as reported on by the police officers involved as well as the suspect, in order to try to rebuild and get a picture of how the interrogation progressed from start to step-by-step-by-step, and the changes that occurred over the course of the interrogation.  Now, in this particular case this culminates in the two recorded statements which give us a great deal of information about what happened during the interrogation and illustrate certain things about the tactics that were used and the suggestibility of the suspect in terms of how he responded to particular tactics that are -- that are simply captured in the recorded part of the interrogation.  Then because it is -- has been reported on in the literature as to the kinds of ideas that develop people's minds in response to extremely pressured interrogations, I usually---

MR. DAVIS: Your Honor, at this time, if I may-- first enter an objection. He keeps referring to "as reported in the literature". Can he be more specific about what he's referring to? I don't know if these are books he's written or if it's something from other sources.

MR. STIDHAM: Judge, that's exactly what I was trying to elicit from the witness before when he objected.

MR. DAVIS: Your Honor--

MR. STIDHAM: The scientific studies in this area that's what he was trying to testify about when the prosecutor objected.

MR. DAVIS: Your Honor, the -- if I may explain. The reason I objected was because he was going into scientific literature which as I understood it the Court has ruled was beyond his area of expertise and that's exactly why I wanted him to -- to be more specific because he keeps referring to the literature and if I don't know what it is, I don't know whether that literature is valid literature. I don't know if it's something he has expertise in, or I don't know if it's a

THE COURT: Okay, I think my ruling was that it invaded the province of the jury and that it was an ultimate question for the jury that exceeded the scope of his capabilities. That was my ruling. But that was to a narrow portion of it.  I think what you're raising now -- if you're asking about the underlying data or information or scientific research that he -- he's utilizing, I think you're entitled to know that.

MR. STIDHAM: I'd be happy to:

THE COURT: However, I think you're entitled to bring that out on cross examination. So I'm going to let you develop it on cross examination. You might have him refer to any treatise or any scientific journal or -- that he's referring to and when he says "literature", and then you can develop it further.

MR. DAVIS: Judge, one other thing. He -- he indicated -- as I understood it -- that his analysis would be based on a reconstruction of the period prior to the taped confession, and it's my understanding that that reconstruction would require him to presume facts not in evidence and to base that upon speculation and upon statements -- out of court statements made by other individuals and we would strenuously object to him being able to give an opinion or to "reconstruct" something based on such speculative premises.

MR. STIDHAM: Your Honor, there's nothing speculative about it. In fact the rule is very clear that he can base his opinion on such things. We discussed that earlier.

THE COURT: I'm not sure I'm going to allow him to reconstruct, if that's what you're referring to. I'm going to allow him to testify based upon his learning, education, publications, and so forth an the field of social -- what was the field, Doctor?

THE WITNESS: Social psychology.

THE COURT: Social psychology, Okay, and I'm not real sure what that is, but I am real sure about what I told you I wasn't going to let in because that's for the jury to decide, and I'm not going to substitute this witness's opinion for theirs.  All right, so let's proceed. You all know where we stand.

Q. Let's back up to the scientific studies in this area, Doctor Ofshe, that you're familiar with regard to influence in police interrogation tactics. .... You mentioned the Stanford Law Review article. Are there any other treatises or studies you can refer to?

A. Yes. The book you held up before is perhaps the authoritative work in the area at this point by Professor Gudjonsson and he cites numerous studies by himself by hundreds of other people that all contributes to the analysis of police interrogation.

Q. Are these theories and empirical studies commonly accepted by professionals in your field?

A. Yes.

THE COURT: Are they in universal acceptance?

THE WITNESS: The empirical studies are research based studies that people don't dispute the honesty of the researchers. They provide data. I think the data is accepted. The theories are not particularly esoteric, so that these are very data based studies. They have to do with studying the conditions, for example, under which individuals make the decision to confess when in fact they committed a crime. In other words, when interrogation is effective and when it elicits certain sorts of decisions, and they have to do with conditions that lead to statements that are coerced statements and in particularly---

MR. FOGLEMAN: Your Honor, I would like to object to this speech that he's making, It's not responsive to what the Court's question was which is whether this is universally accepted and he never said yes or no, he just---

THE COURT: Well, I think I understand what he's saying, but I guess you're right. He didn't---

MR. FOGLEMAN: I didn't -- I didn't get -- I didn't catch him saying that, yes, it was universally accepted. I think he's being evasive.

THE COURT: Well, that might have been a real general question, too.  Can you answer yes or no and then continue with your explanation?

THE WITNESS: Yes, your Honor, they' re universally accepted in the sense that they are data based and no one disputes the honesty of the researchers who report the data. The data is accepted. I then tried to go on to explain that the theories are not particularly esoteric arise from the data. So this is a very empirically grounded line of work.

THE COURT: Is there contrary work?


THE COURT: Are there contrary theories and contrary empirical data?

THE WITNESS: The -- the disputes would be about explaining why something happens rather than whether or not it happens. So that there might be different theories about the impact. For example, how much is attributable to personality or how much is attributable to something else. But there are hair-splitting disputes if everyone agrees to the basic -- that the basic phenomena exists.

THE COURT: All right. Go ahead.

Q. Doctor, I believe you stated earlier what you had to look at in this case with regard to Jessie Misskelley?

A. Yes, I did.

Q. You read the transcripts of his statement to the police -- both statements?

A. Yes, I did.

Q. You've listened to the tapes?

A. Yes.

Q. You've also heard the officers testify at a previous hearing?

A. Yes, I did.

Q. Have you formed an opinion with regard to the specific issue of the voluntary nature of the defendant's statements to the police?

A. Yes, I have.

Q. And what is that opinion?

THE COURT: Wait just a minute. Approach the bench.


THE COURT: I'm not sure that's an appropriate question.

MR. CROW: I thought that's---

MR. STIDHAM: I thought that's what we--

THE COURT: No. I mean, are we going to start calling sociologists and psychologists to second guess a court?

MR. CROW: How about, your Honor---

THE COURT: Are we going -- are we going -- I mean, that -- I've already ruled it was voluntary. Now, am I going to let a witness get up here and contradict my ruling?

MR. STIDHAM: Kagebein versus State, your Honor.

THE COURT: That's not what Kagebein holds---

MR. STIDHAM: Your Honor---

THE COURT: And that is a jury issue granted.

MR. STIDHAM: Yes, sir.

MR. DAVIS: And the question is, obviously the Court's given an expert opinion regarding that and we can't bring that out to the Jury.


MR. DAVIS: And it's based on the same thing. It's based on your review of those facts and evidence and we can't bring that out.

MR. CROW: Your Honor, if I -- would the question be allowed, have you reached an opinion as to whether the statement was coerced.

MR. DAVIS: That's the same---

MR. CROW: That's one of the two things we were talking about awhile ago. I'm just trying to figure out what's going to work here, your Honor.

THE COURT: Well, my notion of his testimony is that he can -- he can testify as to recognizable areas of--of -- of influence, of suggestion, but to give an opinion that would totally supplant the jury's function in making that decision, I'm not going to allow it.

MR. STIDHAM: Judge, didn't we talk about this issue a minute ago when you said you would allow him to testify as to whether or not the statements were voluntary?

THE COURT: No. If I said that I didn't mean it because -- I don't think I did.

MR. CROW: Your Honor, it would appear to me -- I just want to make sure I understand what the Court appears to be saying -- is that he can lay out what he bases his opinion on, but not give his opinion. I mean---

MR. DAVIS: Your Honor, we were clear on this.

THE COURT: Well, I think that's what he can do. I think he can talk about the general principles that are applied, the general notion or concepts in that area in that field, but I-- I -- to allow him to testify that, in my opinion the confession was involuntary does two things.  It -- one, it -- it goes to the issue that the jury will have to decide. Two, it directly refutes the ruling the Court's already made.

MR. STIDHAM: Your Honor, an expert in a medical malpractice case testifies as to whether or not there was negligence on the part of the treating physician.

THE COURT: That's a little bit different.

MR. STIDHAM: Well, I don't see any difference at all, your Honor.

MR. DAVIS: It is very analogous to a child abuse situation where a doctor can testify, I found these factors and these factors, they sometimes exist when this happens, but they can't say, in my opinion sexual abuse occurred.

THE COURT: It's just like the Johnson case on the rape of that child. I'm going to allow him to testify right up to the point of where he's giving an opinion or inference that it was involuntary -- that it was coerced.

MR. STIDHAM: Can he use that word coercive?

THE COURT: It's the same thing.

MR. STIDHAM: Your Honor, the Jury is here to decide the voluntariness---

THE COURT: That's exactly right and he's not, and that's my ruling. . .

MR. STIDHAM: This expert is here to offer an opinion with regard to that issue. It will assist the trier of fact in determining that issue. It's for the jury.

THE COURT: I'm not going to allow him to testify on that opinion. You can make an offer of proof if you want.

MR. STIDHAM: Your Honor, please -- please tell me what it was that I could ask him a few minutes ago that I don't understand I can ask him now.

THE COURT: I just told you.

MR. STIDHAM: I can ask him what?

THE COURT: You can ask him to talk about the facts and circumstances, the conditions that he observed and that he saw these factors for what the police did, that they -- that they're suggestive techniques. Those are the kinds of things I'm going to allow him to testify to. But I'm not going to allow him to give that ultimate opinion, an I know what the rules say, and I'm saying that our Court will adopt the modification that the federal court made, and that you're trying to get this witness to supplant the Jury and to become the jury on that issue. I'm not going to allow it.

MR. DAVIS: Judge, another thing for the record his opinion on that is based in large part on what the defendant told him.

THE COURT: I understand that. That's another basis for it.

MR. STIDHAM: Your Honor, will you note our objection and allow us to--


MR. STIDHAM: ---make an offer of proof?

THE COURT: Yes. You're making a record now.

MR. CROW: In that case if this is our offer, it needs to be shown on the record that his opinion would be that it was -- however the question was worded either involuntary confession or coerced confession -- that is how he would testify.

MR. STIDHAM: I want to make sure I'm crystal clear. I want to follow the Court's order to a tee. Can I ask this witness whether or not any of the tactics employed by the police in this interrogation were coercive or psychologically overbearing?

MR. DAVIS: Based on what he heard in their testimony.

THE COURT: Yes, I'll let you ask those questions. .... But the difference is you're asking him whether or not this was involuntary and allow him to say, In my opinion it was involuntary well, what does involuntary mean? Does that mean the State --or the officers did something impermissible, illegal -- there are a number of things in the psychological area and the sociological area that the police could do that are perfectly permissible. Psychological techniques are not necessarily improper or wrong. From a psychologist' s standpoint, he might say, Well, by using these subtle techniques they caused him to -- to confess. That doesn't mean that they're involuntary. It means that they're good techniques. So it means a lot of different things, and I'm not---

MR. STIDHAM: Am I allowed to ask the question---

MR. FOGLEMAN: Your Honor, for the record, what this person is saying from a standpoint of a psychologist it might be involuntary in the sense that the person didn't want to say it, but it doesn't mean in a legal sense that it's involuntary, and for that reason we would also---

THE COURT: Well, that's what I was trying to enunciate just a minute ago.

MR. STIDHAM. Your Honor, after I ask that question we would like to make an offer of proof.

THE COURT: I told you I would let you ask that last question.

MR. DAVIS: Judge, that is premised on what he's read in their transcript of that -- read or heard him testify to.

THE COURT: Yes, that's correct.

MR. STIDHAM:: That's what I just asked him Judge.

THE COURT: All right. I'll allow that.


Q. Doctor Ofshe, I need to rephrase the question for you. Do you have an opinion as to whether or not some of the interrogation tactics employed by the police against Mr. Misskelley were coercive in nature or overborne his will?

A. Yes, I do.

Q. Could you tell the jury what that opinion is?

MR. DAVIS: Your Honor, I -- wait -- wait -- wait. We -- I hate to object and I apologize for this, but the Court just told Mr. Stidham---

MR. STIDHAM: That I could ask that question.

THE COURT: Well---

MR. DAVIS: He knows---

THE COURT: ---I think the question grew, but---

MR. DAVIS: It sure did. Your Honor, we would object to that question and we would object to that response. He knew what the question was and he went ahead and extended it further beyond what the Court has instructed.

MR. STIDHAM: I -- I asked Your Honor if I could ask that question and I understood that Your Honor said I could ask that question.

THE COURT: Well, you lengthened it to some extent, but I'm not going to comment any further on that. I don't need to.

All right, ladies and gentlemen, you're going to be instructed to disregard the last question and the last answer.

And, gentlemen, my ruling is that this witness will not be allowed to testify as to the ultimate jury issue. That's solely and only the province of the jury. He may testify as to scientific tools, methods, notions that he may possess and it will be limited to that. I think we've outlined that enough up here that I don't need to go on any further.

MR. STIDHAM: Your Honor, can I write the question down and ask your Honor to approve it before I ask it?

THE COURT: Write it down and see if they agree to it and then give it to me, then we'll get on with it.

MR. STIDHAM: May I have a moment, your Honor?


MR. STIDHAM: I can write better sitting down. Your Honor, may I approach the bench.



MR. STIDHAM: I hope you can read my writing.


THE COURT: (EXAMINING.) I'll struggle through. I think I'll go along with that.

MR. STIDHAM: Thank you.

THE COURT: Have you got any objection to that?

MR. FOGLEMAN: Your Honor, that's exactly what you told him not to.

THE COURT: Well, not really. Let me -- just a minute. Let me see what I can come up with. Let's take a ten minute recess, ladies and gentlemen, with the admonition not to discuss the case.



THE COURT: Let the record reflect this is out of the hearing of the jury and it's for a proffer of proof.

MR. DAVIS: While we're here, can we see that seventy-eight page confess -- or statement that he has that's never been provided to us through discovery?

THE COURT: Well, I thank you're entitled to it, yes -- if it's going to be used.

MR. STIDHAM: Your Honor, we would object to that. It's not going to be used. The Court ruled that it wouldn't be used.

THE COURT: It will be used if he's going to use it. If he's going to refer to it and relate to it.

MR. DAVIS: Well -- well---

MR. STIDHAM: It won't be for the Jury to see and have reference to.

THE COURT: Well, I don't know.

MR. FOGLEMAN: It's part of the basis of the defense.

MR. STIDHAM: This is a proffer, your Honor, an offer of proof.

MR. CROW: The Court---

MR. STIDHAM: But the jury's not going to see it.

MR. CROW: I believe the Court ruled that he would -- basically his opinion is based on the undisputed things these officers said. So if anything ---

MR. FOGLEMAN: Well, if that's the case, if it's only on the undisputed things he's not going to have anything coercive there to do. Isn't that right, Mr. Ofshe?

THE WITNESS: No, I think you ruled -- as I remember -- you ruled that this is part of the basis for my opinion -- the interview I did with Jessie.

THE COURT: Yes, that's what I---

MR. FOGLEMAN: Mr. Ofshe, could I ask a question? Isn't it true that if you exclude what the defendant told you that you don't find anything coercive, do you?

THE WITNESS: Not true.

THE COURT: Okay. Let's -- let's do this in some order. Go ahead if you want to make a proffer of proof and let's be sure that I know what I'm excluding and what -- that I know what you're attempting to put in and then maybe it'll change my opinion. I don't know.

Q. Doctor, have you formed any opinions with regard to this case?

A. Yes, I have.

Q. Could you tell the Court your opinion?

A. That the statement made by Jessie Misskelley was a product of the influence tactics brought to bear on him, and that it overbore his initial stated intention to maintain that he had nothing to do with this crime and was not there, and that it was a process of influence brought to bear represented by the interrogation tactics that progressively changed his statements about that subject.

Q. Okay. Were there any other tactics in particular that -- that you thought were important?

A. The interrogation forms a process in which one step builds on the preceding step. And so, for example, the interrogation changes dramatically prior to and then after the polygraph -- I assume it's all right at this point for me to discuss the polygraph.

THE COURT: Yes, since we're outside the presence of the Jury.

A. The poly -- the polygraph as used in this interrogation---

Q. First of all, Doctor, are you familiar with Mr. Holmes' report on the polygraph?

A. Yes, I am.

Q. Okay.

A. The polygraph as used in this interrogation has two effects. One based on the opinion formed by the polygrapher -- which as I'm aware Mr. Holmes says was an inappropriate opinion -- that Mr. Misskelley was "lying his ass off." That that created the circumstances under which the interrogators could shift to a -- an accusatory interrogation, one in which maximum pressure is brought to bear on the suspect and they then did precisely that.  The second effect of the polygraph is that Mr. Misskelley was told that there existed this machine -- scientific machine that was recording that he had done something that he knew he had not done. While Mr. Misskelley reported to me that he did not believe the polygraph the fact that -- the fact that he was told that contributed to his sense of helplessness that he had which developed over the course of the interrogation.  In conjunction with the other tactics and the other procedures of the interrogation the polygraph played an important role in swaying the influence process that was the entire interrogation and culminated with the two recorded statements.

Q. What effect did the diagram -- the circle diagram, the photographs of the body and the playing of the tapes have in your analysis?

A. Those particular techniques as testified to by the police officers and as I would understand them to fit in police interrogations so far as I -- I understand police interrogations and have studied them -- the technique of using the circle is an important technique because in this particular interrogation and consistent with what the officers say, that the technique was not being used to try to suggest that Jessie Misskelley that he was a suspect who was believed to be culpable but rather than he possessed information that was vital to the case and that the offer that was communicated through that was an offer to join the police.  Mr. Misskelley in my interview with him when I asked him about the impact of the circle technique, did not fully comprehend what would follow if you could not get out of circle. He simply did not understand what the consequences would be. The extent to which he could understand that was characterized by him in the interview I did. He knew that it was bad. He knew that it was a place where he did not want to be. And he knew that if he simply conformed -- and that is to say to agree with the police -- that they would take him out from the center of the circle and they could join him.  Over the course of the interrogation as the interrogation became accusatory and the offer for safe harbor was made using the circle technique as what then happened after the circle technique was used and based on my analysis of the sequence of the interrogation, based on the notes -- the contemporaneous notes of the interrogation by Detective Ridge together with the testimony of the police officers -- it's my opinion that that circle technique probably occurred early in the interrogation. It was then followed by an hour and a half of intense pressure brought to bear on Mr. Misskelley in which he was told repeatedly when he said -- first he would often say that he wanted to go home and he was told he could not go home, that's what Mr. Misskelley reports, which for my purposes contributed to the sense of helplessness that there was no way to escape these pressures.  Over the course of this hour and a half we have Detective Ridge's notes which. indicate that Mr. Misskelley was now beginning to talk about the existence of a satanic cult, was giving the detective the kinds of statements that would implicate Damien and Jason which it is my opinion that the purpose of the entire interrogation and particularly the use of the circle technique. The contemporaneously notes illustrate the statement that Mr. Misskelley was successively giving that were statements that were damning to Damien and Jason. This according to Mr. Misskelley was coupled with repeatedly being asked questions about the facts of the crime and every time he would guess something and it would be an incorrect guess even what was known about the facts of the crime, Detective Ridge would be sitting there shaking his head no indicating that this was the wrong answer.  This was repeated on several subjects and Mr. Misskelley was continually pressured in this way. Mr. Misskelley describes that what he learned to do was to feed back to the interrogators what they were telling him happened and he sought to avoid making mistakes because when he made mistakes they would make him go back through the entire story and they would not believe him when he repeatedly told them that he was working with Rickey Deese that day and he knew nothing about the crime.  Those repeated refusals to believe his statements about where he was contributed again to his sense of helplessness. Then the picture technique and the tape recording was used. According to the testimony of Detective Gitchell and Detective Ridge the purpose of using -- at least Detective Gitchell on this point -- the purpose of using the picture was to get a response from Mr. Misskelley. The object in the course of an interrogation would have been -- and this is still at this point -- for someone whose principal interest to the interrogators to obtain statements against another, the -- the technique is showing a group of photographs of a murdered boy was designed to put additional pressure on Mr. Misskelley and it succeeded and there are descriptions in the testimony of Detective Gitchell and Detective Ridge and the description that I obtained from Mr. Misskelley about his reactions to the use of the picture. All of those descriptions include Mr. Misskelley's becoming transfixed, terribly upset by the picture, staring at it, not responding to other questions, Mr. Misskelley adds that it was a horrible picture and he began to cry. He became increasingly upset in immediate response to the use of the picture. That was followed by the audio tape of a little boy's voice saying the words that the little boy said.  Subsequent to that, Mr. Misskelley stated that -- in effect he stated -- and the very words are quoted by Detective Gitchell and similar words are used by Detective Ridge -- "I want out." I have the exact quote and what I just quoted is not exact either, but the statement that was made, was the statement 'I want out." A reference to the offer contained in the circle that, I'll do what you want in order to escape this continuing relentless pressure of the interrogation.  Subsequent to that and immediately following that according to Detective Gitchell he got the tape recorder and would get the first recorded statement. The person -- it's possible now to analyze the influence process contained in the first recorded statement. We now have the first undisputed record in the case and in that part of the interrogation it's possible to demonstrate how relentless, the leading, suggestions, and an unwillingness to accept anything other than what the police knew the facts of the crime to be. This was continually suggested to Mr. Misskelley and we can chart his moving step-by-step-by-step from an inaccurate statement to a statement that was put in his mouth by the police and the tape recorded part of it illustrates that. And I'm prepared to go through that step-by-step to illustrate how that happened.  Even then there were still gross inaccuracies in the statement. The next thing that happened is that Mr. Misskelley is left alone and Detective Gitchell meets with Prosecutor Fogleman and some of the specific gross inaccuracies in the -- the recorded statement are now discussed and according to Detective Gitchell's statement, Prosecutor Fogleman sends him back in to work on these particular statements.  And then we can look at the second statement and show how precisely that happened and how again Jessie Misskelley is conforming to the demand placed on him and is changing his statement from direct response to suggestions and direct instructions by Detective Gitchell. There are illustrations of interrogation tactics in the second part of the statement that illustrate what I'm talking about and also illustrates Mr. Misskelley's strategies of simply parroting back to the police what they told him in order not to displease them and not to be subject to additional questions.  That's the outline of my testimony and analysis of the process of influence in this interrogation.

Q. And you are prepared to go through step-by-step and cite page numbers of the statement to demonstrate this?

A. Page numbers of every statement, on every point, statements made by the police officers, statements made by Mr. Misskelley. These are the facts that I deal with.

Q. Have you also formed an opinion as to the classification of his confession?

A. I would classify this confession as a coerced compliant confession and for a number of other reasons having to do with other specific statements in the confession statement and gross inaccuracies in the scenario that Mr. Misskelley produces, I would reach the opinion that this interrogation was far more -- these statements are far more likely product of influence than they are based on any memory that Mr. Misskelley has of the crime.

THE COURT: You want to ask him more?

MR. STIDHAM: Yes, your Honor, I---

THE COURT: Go ahead.

Q. Are there any other opinions you have, Doctor, with regard to the interrogation itself?

A. I don't believe so. I have a lot of specific illustrations that I've been talking about.

Q. I understand that you also have some experience and training with regard to cult---

A. Yes, I do.

Q. ---and you won a Pulitzer Prize with regard to working in cults?

A. Yes, I did. I shared one, yes.

Q. And is it true that you have worked internationally with regards to satanic cult homicides or -- or let me rephrase that -- to allegations of satanic ritualistic abuse or homicides?

A. I've consulted internationally, if Canada counts, ah, specifically on an occult inspired murder which was a real occult inspired murder.  I've consulted on other cases in which there had been allegations of the existence of a baby murdering satanic cult of the sort that is based on all the available evidence, based on the studies done by the F. B. I., appear to be totally without foundation insofar as there have now been over three hundred separate investigations of allegations of child murdering, child sexual abusing, secret satanic cults. None of these allegations have resulted in any evidence that suggests that these groups exist. This is a conclusion by Kenneth Lanning of the F. B. I.  On the other hand, there are in my experience what I would call youth culture groups that get interested in the occult and these are the groups that are responsible for graffiti, responsible for the undisputed animal mutilations that sometimes occur.  The dividing line is between the murderous baby killing satanic cults and the youth culture groups and the occasional occult inspired criminal groups that in fact do exist. So there's both a reality to it and then there's a mythical level to it.

Q. Have you -- do you have an opinion of whether or not the homicides in question Mr. Misskelley is charged with or have anything to do with satanic rituals or anything of the occult?

A. As far as I am able to tell from what I know of the evidence, there is no evidence that suggests that there is an occult element to this and as far as the satanic panic tips that are given to the police, my understanding is that none of them have panned out. None of them has produced corroboration and that they have been investigated and this is what one would expect if this is an example of a satanic hysteria that it's picked up by the police. This sort of thing happens, when it happens, when there is a particularly heinous crime for which there is no obvious explanation. This is when these sorts of allegations are likely to surface.

Q. What are you basing your opinion on in this case -- that opinion with regards to this not being a cult killing?

A. What I know about the follow-up, the lead that suggested that there existed some cult, that Jessie Misskelley or anyone else was a member of. For example, during his interrogation, Mr. Misskelley provided a list of people who were supposedly members of the cult, and according to the testimony of Detective Ridge who followed that up was knowledgeable at the time of the deaths, none of those people confirmed the existence of a cult.  Apparently there is one individual who claims to have attended a cult meeting. Apparently her testimony also -- or her report is equally unconfirmed. As far as I can tell there is an absence of hard information suggesting that such a satanic cult exists in this area and in addition, I know of nothing about the crime scene that suggests that this is an occult ritual killing.

Q. Thank you, Doctor.

THE COURT: Do you want to add anything?

MR. DAVIS: Judge, my concern at this point and I got lost in that monologue there---

THE COURT: Don't feel too bad.

MR. DAVIS: ---Okay. I got lost back there about the time he got to the first taped confession, but at least prior to that time what I heard was Mr. Ofshe talking about what Jessie told him in a statement. And, Judge, there are two things about that.  Number one, what he has done is taken these-- a statement that we've never seen, we weren't privy to, and he is now going to paraphrase that statement -- or so-called statement -- to the jury coming from a so-called expert in some official capacity to be the basis for why he finds police coercion.  Now, number one, we -- we objected to him coming in as an expert in the first place, but assuming he is an expert, if he can limit his -- his testimony to what he heard the officers say in their testimony, of what he read in a transcript about what the officers said, but when he starts saying, "Jessie told me at this point the officer really bore down on him and they spent another hour and a half with him. This made him increase his feelings of helplessness."  Now, your Honor, we can't cross examine Jessie if his voice is coming through the body of Doctor Ofshe, and that's what they're basically trying to do and that's clearly inappropriate. He -- there is no possible way that a person in his position can rely on a statement he took from a person and then paraphrase it and translate it to a jury. That's hearsay. It doesn't matter whether it comes from him or whether it comes from someone else. That's hearsay testimony.  He can say what he observed. He can testify how that affects his opinion. He can list the facts that indicate coercion. If he goes beyond that, your Honor, the State feels that he's clearly gotten into a province that's -- that's the sole province of the jury -- in the area that's the sole province of the jury. 

THE COURT: All right, I've heard the proffer of proof and it can be submitted as a proffer of proof, and it would be my finding that the information elicited and the testimony proffered not only embraces the ultimate issue or facts for the jury to consider, that it in effect tells the jury what their finding should be.  And I'm -- I'm going to apply the rule in Gramling versus Jennings, 274 Ark. 346. I'm going to apply the additional phrasing adopted by Congress in nineteen eighty-four to Rule Eight Oh Four that says explicitly, "No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or a defense thereof."  And I think that applies here and I think the term -- just reading Rule 704 alone, it says, "Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of the fact."  The question is: What does embrace mean and our court tried to define it in two or three cases. One of them was that Gramling case. Another one is Aetna Casualty -- that was a civil case.  I just think under the facts and circumstance of this case, to allow him to testify in the fashion tendered would be eliminating the jury and accepting an expert's opinion. So the opinion of the jury is what's significant to me.  There are some things that he testified to such as the occult activity that he might properly testify to. There are other things that I would allow him to testify to that would be in the general nature of his expert knowledge, but to give that final and conclusive opinion in -- in the fashion that it's elicited -- says, Jury, you must find this way - and I'm not going to allow it.

THE COURT: I -- I -- everything -- everything you've just said, however, I submit would be an appropriate argument that you may make to the jury at the proper time, and that an expert in his capacity normally is employed to consult with and discuss trial strategies and techniques with counsel. And if I allowed him to testify based upon a -- you say a seventy-five page statement taken from the defendant would be doing just exactly what the prosecutor says -- allowing him to testify as a surrogate.

MR. STIDHAM: That's why we did it as a proffer, your Honor.

THE COURT: Yes Well, I'm not going to allow that.

MR. STIDHAM: Your Honor, I understand your ruling and we would just ask the Court to note our objections pursuant to Rule Seven Oh Four with regard to our interpretation as we discussed earlier with regard to Rule Seven Oh Four.

THE COURT: We just made a record.

MR. STIDHAM: Thank you, your Honor.

MR. CROW: Thank you, your Honor.

MR. FOGLEMAN: Your Honor, we would like to make as a part of the record State versus Luff, 621, N.E. 2d 493, which is an Ohio case in which the defendant (sic) was found not qualified to testify and also United States versus Fishman it' s---

THE REPORTER: You said, "defendant." Did you mean witness?

MR. FOGLEMAN: He was found not qualified to testify as a witness, right. And also State versus Fishman, which is in the Northern District of California 743 F. Supp. 713.


MR. STIDHAM: Your Honor, likewise, we would like to offer two examples of when Doctor Ofshe was allowed to testify as an expert in this exact area and we would like to submit those exhibits.

THE COURT: All right, they may be received.



MR. STIDHAM: I'm going to make some copies and have---

THE COURT- Sure, you can do that later if you want to.

MR. STIDHAM: Thank you, your Honor.

THE COURT: Where do we stand now?

MR. STIDHAM: Your Honor, I think that we're at the point where I can -- we can ask the Jury to come back in and I can read the question that -- that the Court permitted. At least that's my understanding of where we're at .

MR. FOGLEMAN: Your Honor, my only concern is whether or not this gentleman is going to base his opinion on -- on what this defendant told him because from what he testified to in the proffer he adopted the defendant's version versus the officers' version.

THE COURT: I think that's what he said.

MR. FOGLEMAN: All right, and I think that that's an improper basis of his opinion and if he's going to purport to testify now about coercive tactics and adopt what this defendant's told him and say things that aren't in accordance with the evidence, I think the jury is going to be---

THE COURT: I don't think that's the way I worded it. I -- I allowed him to ask a question using the two statements, the files and testimony that he reviewed and whether or not he had an opinion as to whether or not the tactics employed were suggestive or that would lead Misskelley to make a statement.

MR. STIDHAM: And the basis of his opinion is the statements and tapes that he's heard of the defendant's statements to the police.

THE COURT: I'm going to allow him to do that. And, of course, everything he just said you may use in an argument to your jury if you want to.

MR. STIDHAM: Thank you.

MR. CROW: Thank you, your Honor.

MR. DAVIS: But the question would be restricted and would not include whatever statements -- his opinion would have to be based on everything except those statements he received from the defendant.

THE COURT: I think he said he could do that.

MR. DAVIS: I want to be sure of that because then in cross examination when I ask what specific police misconduct or police coercive tactics are you talking about, I don't want him to go back and say, Well, Jessie told me -- or -- or even through the back door because, your Honor, at least the last few hours I've come to respect the witness. I know he can certainly catch you when you make questions that give---

THE COURT: Tricky, isn't he.

MR. DAVIS: ---give him an opportunity to answer, and--

THE COURT: He's an expert, you know.

MR. DAVIS: If he doesn't understand very clearly that he is not to refer to that statement as a basis of his opinion, then I think we're going to end up getting it in one form or another.

MR. STIDHAM: Do you understand, Doctor Ofshe, that you're not to refer to the defendant's statement.

THE WITNESS: I understand.


MR. STIDHAM: May I proceed, your Honor?


Q. Doctor Ofshe, do you have an opinion based on the transcription of the statements made by this defendant to the West Memphis Police Department and listening to those tapes of the statements made to The West Memphis Police Department by the defendant or the testimony of the officers that you've heard as to whether any of the interrogation tactics used by the police against the defendant, Jessie Misskelley, were suggestive or led Misskelley to make that statement?

A. Yes. I would add to that that I would also rely on the notes that were produced by the officers and also certain other facts I've been informed have been testified to by various witnesses in this courtroom.

Q. So if I understand your testimony it is your opinion that those tactics did---

MR. FOGLEMAN: Your Honor---

THE COURT: If he's talking about testimony, that's fine.

MR. FOGLEMAN: Was he here to hear this testimony in the courtroom?

THE COURT: Well, if it was made known to him, he doesn't have to be here.

MR. FOGLEMAN: But how do we know it was made known to him accurately, your Honor? If somebody told him that so and so testified---

MR. STIDHAM: Judge, I asked the Court Reporter to give me a transcript and that's what he looked at.

THE COURT: All right.

MR. FOGLEMAN: Well, if that's the case, that's all right.

THE COURT: All right. Is that the case?

MR. FOGLEMAN: Is that the case?

THE WITNESS: I have not seen a transcript of this hearing. I've seen a transcript of a prior hearing and was informed as to certain specific testimony given and presented by the medical examiner and I'll identify the particular facts that I'm using if that would be helpful.

O. Well, if I understand your testimony, it is that the tactics used by the police were suggestive and led the defendant to make a statement?

A. Yes, and that the statement- the contents of the statement was shaped by these techniques.

Q. Now, Mr. Ofshe, earlier in your testimony you referred about -- you were telling us about this scenario where you have claimed to have obtain a false confession in a case you worked on?

A. That's correct.

Q. Is that the case out in Washington State?

A. That's right.

Q. Okay, and in that case the scenario you presented to the defendant in that case that you said you created and he -- he agreed with, that scenario was similar to the allegations in the actual case, correct?

A. No. The scenario was specifically designed to be different from any of the allegations in the case. I invented it to make it in the same area, otherwise it would be meaningless, but I made it specifically different from any allegations in the case and then I verified with one of the people who was supposedly involved in it that in fact it never happened just to double check that in fact it did not happen.

Q. Well, isn't it true that in both instances the allegations involved child sexual abuse?

A. This was a case about child sexual abuse and when I told him the specifics as to a particular event which I made up -I made up peculiar circumstances for that event and he then produced a very detailed confession specific to that event including dialogue and then I verified from one of the victims that no such event had ever occurred.

Q. And isn't it true that in that particular scenario that both daughters of that defendant had testified he had sexually abused them?

A. I don't believe they ever testified to that. I believe they made allegations as to that effect. I don't think their formal testimony was ever taken. They also made allegations to the fact that their bodies were covered with scars which were then subject to examination and -- a court ordered medical examination and there were no scars on their bodies. So they made a lot of allegations, none of which proved empirically correct.

Q. Those were two adult daughters, correct?

A. That's correct.

Q. Okay, and also the wife also made allegations that he sexually abused the daughters, correct?

A. The wife was being threatened with having her-

MR. DAVIS: Your Honor, could you ask him -- if he has an explanation we can hear that, but would he answer the question on the front end before we go through the five minute---

THE COURT: --Try to answer yes or no and then -then if you need to explain, I'm going to let you.

THE WITNESS: Thank you, your Honor.

A. Yes. The wife during the period when she was being pressured by the police and threatened with having her one remaining child taken away from her if she did not come up with accusations against her husband, proceeded to come up with such accusations and some of those accusations included being present at a satanic cult ceremony where blood flowed out of a book and flowed uphill over her arms -- over her body.  I was asked to evaluate her by the prosecution to help them make a determination as to whether or not to charge her or whether or -- or -- whether or not to charge her and it was my recommendation not to charge her.

Q. And in fact her husband had pled guilty to these sexual abuse charges, correct?

A. No. In fact her husband pled guilty to six counts of third degree -- entered pleas to six counts of third degree rape when he was told that if he did not enter that plea---

MR. DAVIS: Your Honor, would he be responsive to the question?

Q. Did he enter a plea of guilty to charges of rape or sexual abuse?

A. He entered -- yes -- he entered a plea to six counts of third degree rape.

Q. Did he maintain his guilt for a period of five months prior to entering that plea of guilty?

A. Oh, yes.

Q. Okay, and isn't it true, Doctor, that he did not decide that he was not guilty until he talked with you?

A. After he talked---

MR. DAVIS: Your Honor, could he be asked to respond yes or no?

THE COURT: Yes or no and then---

A. Yes, that's technically correct. However, the discussion that I had with him which was tape recorded was not a discussion that precipitated his changing his mind. He changed his mind subsequent to that after he independently began to look at the things that he had confabulated and after the pressures that he had been under during this five month period were withdrawn, after which he had been gotten to enter a guilty plea. So his decision -- his realization that he in fact committed none of these things -- was done independent of any conversation I had with him.

Q. And despite your opinion that his confession was coerced or involuntary in that case, the jury and the court found otherwise, correct -- or the court did?

A. The court found based on statements made prior to the statements that I analyzed -- found that it was sufficient to accept -- or not to accept his request to withdraw his guilty plea and go to trial.

Q. So in that scenario with the husband saying for five months he's guilty, with the wife saying that he's guilty, and the two daughters giving statements as to his guilt, you met with him and convinced him that he was not guilty, correct?

A. Incorrect.

O. Well, after you met with him is when he. decided that he was not guilty, correct?

A. A month after he met with me after going through his own analysis of what happened -- after he was no longer being constantly coached by the interrogators, by the psychologists, and by his minister, he realized that the beliefs that he had formed made no sense whatsoever and he realized that he -- he had come to believe something that was not true.  What he came to believe was that he was the leader of a satanic cult that had been in operation for seventeen years, that had killed hundreds of children for which there was no evidence. That's what he came to realize made no sense.

Q. And you testified in his behalf in a hearing designed to get that guilty plea set aside, correct?

A. I test -- that's correct, and the result of that was that the judge chose to maintain the guilty plea based on statements that he had made prior to the matter that I testified about, and that was the justification for not allowing him a trial.

Q. What exactly -- based on the testimony that you heard from the officers at the prior hearings and based upon your examination of those taped statements -- what coercive tactics do you allege that the police made in this case -- or did? .

A. In order to answer your question, first I need to break the interrogation down into its component part so that I can cut out parts of it and focus on a particular part.

Q. Well, one thing I want you to assure me, Doctor, is that you're referring to either testimony you've heard, or to the taped statements of the---

A. That's correct, and the notes.  First---

Q. When you say "the notes", what notes are you talking about?

A. The detectives' handwritten notes and typed notes and also I may refer to a fact I've been informed that was testified in this courtroom and I'll specify exactly what that was when I do.

Q. Let me -- let me back up just a minute. Did you find any evidence in any of those things you refer to as to physical coercion.

A. No, I did not.

Q. Did you find anything in any of that evidence to indicate that any of the officers yelled or used a loud voice or were degrading to the defendant in those tapes or in that testimony that you reviewed?

A. No, the officers testified they did not do that.

Q. Okay, and in those tapes that you observed, you didn't hear anything of that nature, did you?

A. No, I did not.

Q. Okay, and there is nothing in the notes prior that would indicate there was any undue influence, pressure, or loud voices and demands made on the defendant, was there?

A. Not in the limited set of materials you're allowing me to testify on.

Q. So as far as those type of tactics you would have to agree that what you reviewed is devoid of any evidence of that, correct?

A. I would have to agree that based on the set of materials on which I am now testifying, I can find no example of that.

Q. And those things that you refer to that you're testifying to are based on your review of testimony and your observance of that confession? You've read it and listened to it, correct?

A. That's correct.

Q. And is what you term or what you find in there coercive that the officers asked at times, leading questions -- is that one of the things?

A. The questions were more than leading. The questions were very directly specifying what the answers should be.

Q. Did you find anything in your review of the officers' testimony, in your review of the statement of the defendant or either of the statements of the defendant to indicate that the officers gave him the information about which boy was castrated?

A. In their statements? No.

Q. And in their notes?

A. In their notes? No.

Q. In the taped confession?

A. Other than I seem to recall that he was being shown a picture of one of the boys and that happened to be the boy that was castrated and I believe that, if memory serves, that he then identified that boy as the one that was castrated, but I believe -- and perhaps I'm wrong -- but I believe that he was being shown a picture of that boy at the time.

Q. Do you know where that is in the transcript?

A. No, that's not something I'm sure of at this point.

Q. And if that turns out to be inconsistent with what the testimony at trial has been, then you certainly wouldn't disagree with that?

A. My memory may be defective on that.

Q. And those facts that -- in fact -- let -- let ask you this: In fact after this defendant makes the statement and identifies the one that's castrated, the next question is, "Are you absolutely certain that's the one?" Isn't that the next question in the interview?

A. Can you direct me to that?

Q. Yes, sir. It's in the first statement. It's on page seven. Let me see which statement you have. (EXAMINING.) Okay, it's that transcript on page seven.


Q. Down at he bottom of the page. Where the officer asked, "Which boy was that?"  And the defendant said, "That one right there"  And Officer Gitchell said, "You're talking about the Byers boy again?"  And the defendant said, "Yes."  Then what was the next question that Officer Ridge asked?

A. (EXAMINING.) "Are you sure that he was the one that was cut?"

Q. Okay. Now, Mr. Ofshe, if the police are coercing him when he has just given them the accurate information and has just told them the Byers boy is the one who was castrated, are you saying that it's coercive for Officer Ridge to then ask, "Are you sure that he was the one that got cut?'

A. Well, judging from this statement apparently there was a photograph of the Byers boy because he was able to say, "That one right there."

Q. So you're presuming those facts?

A. I think -- it says, "Which boy was that?" And then Mr. Misskelley responds, "That one right there." I read that as indicating he is identifying some representation of that boy right there.

Q. Okay, an do you know how many photographs were there?

A. No, I don't, and I don't know how those photographs were being manipulated at the time.

Q. But---

A. I'm just pointing out that that's a possibility.

Q. You don't know anything as far as from the testimony or from the taped confessions and anything to indicate that those photos were manipulated, do you?

A. No, I don't.

Q. Okay, so you would have to presume that fact if you were not to take some -- place some significance on that particular statement, correct?

A. It's a possibility. If the record is not clear as to one way or the other as to whether or not this is being suggestive. This is an area that in my mind is unclear.

Q. Well, explain to me how it's suggestive or if -- if the police are trying to coerce someone into giving them incorrect or a specific scenario, why would they go back and ask them, "Are you sure that he was the one that was cut?' Why wouldn't they leave it alone when they had the answer they wanted?

A. Because when they got the answer that they wanted, then they emphasize it in order to stabilize that so that when you get somebody here you want them, you emphasize that's what you're trying to do.  Now, I can show you other examples of very direct leading suggestions that shows that in the course of this interrogation these officers were capable of doing that and I know there was a picture there and it may have happened that they indicated which picture should be selected.

Q. Well, gee, Doctor, to say it may have happened you would have to assume and presume certain inappropriate police conduct, wouldn't you?

A. I would have to assume there are other inappropriate police conduct which I can specify might also have expressed itself here and I might point out that you brought up this point, I didn't. This is not one of my examples. This is something that I would judge to be unclear.

Q. And that's why the answer to that -- is that not clear to you that when the officers have the answer that's consistent with the evidence and they keep on going and they say, 'Are you certain that's the one?" Doesn't that indicate to you that those officers are trying to get an accurate statement rather than coerce him into saying something?

A. Well, if we -- we're looking at an interrogation that was free of the kind of gross leading and suggestion that characterizes this interrogation---

Q. Is -- wait, let me -- let me stop you. The question, "Are you certain that is the one?" -- are you characterizing that as a gross leading statement?

A. I'm suggesting that if---

Q. Could you answer that question for me, please?

MR. STIDHAM: Your Honor, he's trying to answer the question and the prosecutor won't let him.

THE COURT: Answer the question.

A. Under some circumstances that could be and that would be under some circumstances a gross leading suggestion if it were done in a particular way.

Q. Do you have any actual facts or knowledge from that transcript and those tapes and you're hearing the officer testify that there was anything that would contribute with that statement to make it a gross leading statement?

A. As I said, this is your example I think it's unclear because I don't -- I don't believe the record is clear in my mind as to the circumstances under which this occurred and I'm simply pointing out that there are other examples of gross leading, highly suggestive, if not demanding statements on other points that illustrate that as an operating procedure this is present in this interrogation and, therefore, there is a possibility -- and I don't know the particular circumstances of this particular presentation of the photograph. You brought it up, I didn't.

Q. Okay. When you say, "It's my example", it's his voice, isn't it true, Doctor? I mean, you heard the tape.

A. It's also -- yes, it is his voice. It is also his voice that says that he arrives at the scene at nine-o'clock in the morning, which is the very first statement that he makes about the time that this all began, and that statement is a statement that because it is not the statement as I analyze the influence process of this interrogation, because it is not the statement that fits with the facts. The statement about the time at which this crime occurred is a statement that comes up and is manipulated eight different times over the course of this interrogation and over the course of those eight manipulations one sees a pattern of unrelenting pressure on Mr. Misskelley.

Q. When you talk in terms of general valid---

A. May --may I finish?

Q. Mr. Ofshe, when you talk in terms of generality--

MR. STIDHAM: Your Honor, may the witness finish answering the question?

MR. DAVIS: Your Honor, he hasn't answered my question yet.

MR. STIDHAM: He hasn't answered the question the way he wants him to.

MR. DAVIS: Well, your Honor, I asked him the question about part of the statement and he starts off talking about something that's on page twenty-four.

THE COURT: All right, answer yes or no and then if you need to explain I'm going to permit it.

THE WITNESS: May I have the question again, please?


Q. I don't know what the terminology is in Berkeley, California, but is it different when somebody says, "Are you sure that he was the one that was cut?" Is that a leading statement in California?

A. No, it's not a leading statement in California and may I explain?

Q. Is it a leading statement in Arkansas?

A. If it is a state -- I never said it was a leading statement. I think what I tried to explain and what I would like to explain is---

Q. Well, are you -- are you going to confine your remark to that statement, Doctor, or are we going to roam around the entire tape recording?

MR. STIDHAM: Your Honor---


MR. STIDHAM: He's asking questions and he didn't get the right answer he wanted---

THE COURT: You're making a statement. Make an objection if you've got one.

MR. STIDHAM: Your Honor, my objection is that the witness should be allowed to answer the question and explain his answer.

THE COURT: All right, I'm going to allow him to answer the question yes or no and then give your explanation. Were you through?

A. No, that is not a leading statement in California and I think the point I was trying to make was if following manipulating a suspect to a statement that the interrogator likes, the interrogator is likely at that point to try to reinforce that particular statement and will, therefore, because it's very likely that if the person has immediately said, "That's the one," however, that was accomplished.  To stabilize that, one would then reinforce it by allowing the person to restate it, yes, I'm sure, because it's a very very low likelihood that the person is not going to immediately continue. That's a good tactic for stabilizing an answer that you like.

THE COURT: Doctor, excuse me, are you assuming that a single photograph of one individual was exhibited?

THE WITNESS: No. I am -- I am assuming that I don't know how the photographs were placed, that I don't know what prominence it might have been given, and I don't know what indication might or might not have been given, and therefore, I don't know what surrounds that is not included in this record in this particular choice---

THE COURT: --Have you read the officer's description of the showing or viewing of the photographs or photograph?

THE WITNESS: Yes, I have.

THE COURT: Have you seen the photographs or photograph?

THE WITNESS: No, I have not.

THE COURT: Show them to him.

MR. DAVIS: Your Honor, for the record I believe it's marked as State's Exhibit Number One Oh Five.



Q. Doctor, if that -- if that -- if those three photographs are laid out on the table and he makes the statement that one of them was cut on his bottom and is pointing to his private parts at the time he does that and the officer says, "Which boy was that?" and he points to the picture and says, "That boy right there," are you saying that that's unduly suggestive?

A. Or if he responds to an officer whose finger is on the picture and says, "That one there." If that happened, that would be a way of accomplishing that identification.

Q. But we're in a court of law and we deal with evidence and if there's no testimony or evidence in the record or in anything you've looked at to indicate that that happened, then there's nothing suggestive about that question or there's nothing that indicates that that response was coerced, is there?

A. And all I said was, "That's a possibility. I don't know all the facts."

Q. Okay. But you have to presume facts or assume things in order for you to reach the conclusion that that indicates coercion, isn't that correct, Doctor?

A. If I were to reach that conclusion about that particular statement, I would agree with you. If I say, "I don't know" on that particular statement, then I'm trying to say I don't know.

Q. And, also, on that same page the defendant indicates that one of the boys was being cut in the face. Isn't that correct? Page seven.

A. Yes.

Q. And the question before that was, "Where did he' cut him at?" And Jessie's response was, "He was cutting him in the face." Is there anything coercive or suggestive about the question, "Where did he cut him at?"

A. No, my Judgment is indeterminate because I don't know the facts surrounding it.

Q. So when the defendant identified who it was who was castrated and he indicated that one of the boys was cut in the face, you don't know and you can't give an opinion that any of those questions were coercive in nature, can you?

A. And the record -- no, I can't because the record that we are dealing with is very incomplete because this part of the record is preceded and everyone agrees by over two hours of interrogation in which many subjects were discussed and in which we do not know what was said on the subjects because we have two hours of interaction about this for which we have no record.

Q. And your speculation on what might have happened during that time and your guess as to what occurred and what transpired and what happened after reading this testimony, you can't speculate any better than any of these people can, can you?

A. Not on this particular point, no. There are other points about which the record is quite clear, about which I'm happy to be helpful.

Q. How many cases in the past twelve months have you provided expert testimony on?

A. Perhaps five or six.

Q. What percentage of your income last year was derived from the providing of expert testimony?

A. I don't know what the percentage was. I can tell you the number if you'd like.

Q. What' s that number?

A. In my -- I -- I earned Forty Thousand Dollars last Year out of this part of my professional life for which I take half time leave from the university every year to free up my time to do it.

Q. And is your going rate---

A. Half time unpaid leave from the university.

Q. Is your going rate approximately Three Hundred Dollars an hour?

A. No, it is not.

Q. What is it?

A. My rate is a hundred and fifty dollars an hour for consultation and Three Hundred Dollars an hour for time spent in court or in depositions.

Q. Okay. So---

A. Because time spent in court or depositions is very, very hard work.

Q. Okay. I will agree with that, Doctor.  So it's Three Hundred Dollars per hour in court and you're asked -- when you're initially asked to evaluate a case, you don't get the Three Hundred Dollars an hour unless you give an opinion that's consistent with what the person asking you wants to hear. If they don't call you as a witness, you don't get your Three Hundred Dollars an hour, correct?

MR. STIDHAM: Judge, that's a ridiculous question. It has an inference that---

THE COURT: --Are you -- again, you're making a statement. How many times have I got to tell you, Dan. Stand up first of all and say, "I object", okay?

MR. STIDHAM: I object, your Honor.

THE COURT: All right. What is your objection?

MR. STIDHAM: My objection is it's not a proper way to impeach the witness. It's very -- it's -- it's speculation and it's -- the witness has testified, your Honor, that he is a consultant--

THE COURT: Well---

MR. STIDHAM: ---to the prosecuting attorney's office in several areas throughout the United States.

MR. DAVIS: Your Honor---

THE COURT: Okay. Again, that gets into statement. My -- my ruling on your objection is it's common and customary practice to ask an expert what their compensation for their testimony is, and I'm going to allow it to that extent.

MR. STIDHAM: To ask him -- if he doesn't say what he's supposed to say he's not going to get paid? That's what the prosecutor asked him.

THE COURT: Well, I'll let you rehabilitate him then, although I think he don't needs much help.

MR. STIDHAM: Thank you, your Honor.

Q. Isn't it true, Mr. Ofshe, that you actually formulated an opinion before you ever heard or examined any testimony from the police officers?

A. No. I -- I had an idea about what might have happened, but I needed to hear the testimony from the officers to find out much more information about what did happen. In fact in order to try to get that information I tra -- I tried to travel to Memphis to meet with the officers to interview them about what happened so that I could have a fuller basis for it, but that meeting was in part unscheduled because of the airplane problems and in part apparently because they were going to refuse to talk to me in any case.  And so at the hearing that I attended, I observed the officers and listened to their testimony and in fact my opinions changed very substantially because of the testimony that I heard.

Q. Isn't it true that you had advised Mr. Stidham that you had an opinion as to the coercion that was used in this case prior to the time you ever heard the police officers testify?

A. Uh -- the opinion that I had at that point was based on the materials available to me which included my having interviewed Jessie Misskelley.

Q. Well, my question I have for you is: Didn't you formulate an opinion before you ever heard the officers? And you just indicated, "My opinion was" so you had formulated an opinion, correct?

A. I had formulated a tentative opinion and I was aware that there was much that I wanted to know about the interrogations that I could not know from just the records, and so the hearing that I attended was an opportunity to hear answers to specific questions that I wanted to know from the officers which allowed me to refine my opinion about what happened.

Q. Was your opinion before that that the officers had not coerced anyone?

A. Well, the opinion that Mr. Misskelley's statement was a coerced statement can be supported from the records that were available---

MR. DAVIS: --Doctor -- your Honor, would he--would you ask him to answer the question?

THE COURT: Answer yes or no and then if you need to explain you're going to be permitted to.

A. Could you repeat the question, please?

Q. Prior to hearing the police officers testify or either reviewing their testimony in the form of a transcript, was your opinion at that point that the police -- that the police officers didn't coerce anybody?

A. No, that was not my opinion.

Q. Okay, so your opinion prior to that -- granted tentative but before you even heard or sat -- saw or read anything about what the police officers did -- you already formulated an opinion that this was -- this confession was coercive in nature, correct?

A. That is correct because there is adequate evidence as to the coercive nature of it contained in the materials that I already saw, but there were many questions that I had about the specifics of it that were very unclear until I heard the officers and what they said caused me to modify substantially my analysis of what led to the materials that I already had seen.

Q. How many cases in the last twelve months have you testified to and indicated that there was coercion on the part of police in obtaining a confession?

A. I can recall one that I testified to that most of my work consists of evaluating the interrogation and feeding back opinions to attorneys and, more than half the time those opinions do not lead me back into the courtroom because I tell the attorneys there is nothing for me to testify about because I don't find in materials that have been provided to me suggesting that there is coercion.

Q. How many times have you testified at the rate of Three Hundred Dollars an hour that a confession was coerced?

A. To the best of my knowledge, never.

Q. How many times have you testified for hire and testified that a confession was coerced or as a result of police coercion?

A. I think that number is -- over the years I've. done this -- I've testified -- I've testified to coercion thirteen times. Of those thirteen times at least once I was testifying without fees and in no case was I paid Three Hundred Dollars an hour because -- while that's my standard fee, to the best of my recollection all of the other cases involved indigent defendants and the State rarely pays very much money for one's time to do this work.  So in no case has anyone ever paid me my customary rate and I do it for whatever rate is appropriate once I reach the conclusion that this is what the facts tell me and I have done it for nothing and would do it for nothing again.

Q. But the truth of the matter is that the more you do it and the more high profile cases you do it in, the more attention you get, correct?

A. The more what?

Q. Attention. --

A. I suppose.

Q. If it's my understanding, Doctor, you didn't find anything coercive about the statement that Jessie Misskelley made about the injuries of Stevei -- or of Christopher Byers. Is that correct?

A. No, that is not correct. I didn't reach any conclusion about those statements because I don't believe that the record is sufficient for me to reach a conclusion one way or the other.

Q. And the remainder of it is basically because you found some questions that you determined to be leading?

A. Oh, no, not at all.

Q. Is that not what your testimony was earlier?

A. I don't believe I said that the remainder of it was because I merely found the questions to be leading. My recollection of my testimony was that it was much more than that which I would be happy to explain to you.

MR. DAVIS: Your Honor, wait just a second. Your Honor, we'll pass the witness.

Q. Doctor Ofshe, you mentioned that sometimes you will testify for indigent defendants. Is that correct?

A. I believe every time I've testified in a confession case it has been for an indigent defendant.

Q. Were you told that this particular defendant over at counsel table was indigent?

A. I believe so.

Q. Have you received any money in this case so far?

A. I haven't even received my expenses for the three trips I've made to Arkansas. No, I haven't received any money.

Q. Do police officers usually yell at suspects when the tape recorder is on?

MR. DAVIS: Your Honor, I would object to that question because this individual doesn't have any expertise in the field of police interrogations as far as his personal experience of being there to make that determination.

MR. STIDHAM: I'm not sure I understand his objection.

THE COURT: Well, I'm not sure it takes an expert to answer that question, so I'm going to allow him to answer it.

MR. STIDHAM: Thank you, your Honor.

A. No, when the tape recorder is on, one gets behavioral statements that are tailored to the fact that the tape recorder is there and so one would, not expect the yelling to happen.  In my experience the yelling and the other improper activities happen when the tape recorder is off.

Q. Is there any difference between cops yelling at people in Los Angeles or Corning, Arkansas, when the tape recorder is on or off?

A. I don't see why.

Q. The prosecutor kept wanting you to ask question -- or asked you questions about the coercive nature of the statements on -- the questions and answers on page seven that he pointed out to you on the transcript, and I kind of got the impression when I was sitting over there in that chair that you wanted to talk about other examples of leading and suggestion that was employed by the police. Would you like to talk about those?

A. Yes, I would.

THE COURT: How long are we going to be talking about them?

MR. STIDHAM: We're all tired and we know you're tired and the jury looks tired---

MR. FOGLEMAN: Your Honor---

MR. STIDHAM: ---so we won't be long.

MR. FOGLEMAN- ---we don't mind Mr. Stidham asking questions but to try to elicit some narrative, we don't think that's proper.

THE COURT: I'll object -- I mean I'll. sustain your objection to the invitation for a narrative. This witness is capable of answering questions in question form and answer rather than a narrative and that objection will be sustained. The Court Reporter is not going to be able to go much longer.

MR. STIDHAM- May I have just a few more minutes, Judge?


Q. Doctor Ofshe, could you point to a few areas of the interrogation which you feel are leading and suggestive?

MR. STIDHAM: Your Honor, may I use the word coercive like the prosecutor used?

THE COURT: I guess that's the goose and the gander thing, isn't it? Go ahead.

Q. Could you give some examples of the police being coercive and leading or suggestive during the course of the interrogation?

A. Yes, I can. Perhaps the most powerful example in my opinion is the example of the eight revisitings of the question of the time at which the crimes occurred.  The first example occurs on page -- in my numbering -eleven -- which I believe is page three -- and this is the point at which Detective Ridges says, "All right, when did you go with them?"  Mr. Misskelley says, 'That morning."  Detective Ridge says, 'Nine o'clock in the morning?"  Jessie says, "Yes, I did. I went with them and then"-- Then they talk about walking. At that point Jessie is now saying he went there at nine o'clock in the morning. I believe that there is a mistyping here. I believe it's Jessie said, "Nine o'clock in the morning." But this transcript does not say that and I'll point that out. That's my recollection.  In any case he agrees or says that it was nine o'clock in the morning. There is no follow-up at that point. The tape recorder is on. Nine o'clock in the morning is grossly inaccurate as everyone knows.  Detective Ridge has testified in hearings that that was the first time that any time for this occurring happened and in his hearing testimony at page ninety-nine of the transcript. The next time the subject of the time at which the events occurred comes up is on page nine of the first transcribed interrogation and, at this point without reading it, I'll just point out that Detective Ridge asked Mr. Misskelley -- he's now revisiting the subject. He asks Mr. Misskelley, "I'm not saying when they called you. I'm saying what time was it that you were actually there in the park?" Mr. Misskelley says, "About noon."  Ridge says, "About noon? -- and it has a question mark.  Jessie says, "Yes."  Ridge now says something that in my opinion was an attempt to manipulate Mr. Misskelley's statement about the time because Detective Ridge now says, "Okay, was it after school had let out?" This is immediately after Jessie saying, "It's at noon." He's now suggesting it must be later by saying, "Is it after school let out?"  Jessie says, "I didn't go to school."  Ridge now has to clarify and say, "These little boys."  Jessie says, "They skipped school."  Ridge says, "They skipped school?" -- with a question mark.  Then there was more discussion about their bikes and so on. Again, there is an error. We know it's impossible for these boys to have been there at noon.  Going on to the third example on page nineteen. Now, it's Detective Gitchell who revisits the question of time still because the time is inaccurate and he raises -- "Now, did you say the boys skipped school that day? These little boys did?" Said in that way, it's a suggestion that you change your answer indicating, I'm displeased with this. This isn't the right answer. Did you really say would be the emphasis on that.  Jessie then answers. He asks -- Gitchell now asks, "What time did you get there?"  Jessie again repeats, "I got there about nine."  Gitchell says, "In the morning?"  Jessie says, "Yes." So Jessie now attempts again to say he got there at nine in the morning.  Now, I am of the belief that there has been testimony that Jessie was roofing that morning. I believe that that was testified to. So that would be an example if I'm correct in that belief that Jessie was somewhere -- says he was somewhere else and someone confirms that and he is now saying he got there at nine o'clock in the morning. Clearly a contradiction.

Q. Doctor Ofshe, is there another example in the second recorded statement?

A. Yes. This goes on and is repeated several times. If I can just illustrate one other point in the first statement.

Q. Certainly.

A. There is a very important example of the way in which the detectives refuse to allow Jessie's inaccurate statement to stand and directly manipulated Jessie's statement through skillful interrogation tactics.  So for example, on page eighteen of the transcript at the conclusion of a discussion about the supposed cult, Detective Ridge now changes the subject. There is nothing that precedes this about the timing, but now for the fourth time revisits the timing and this time Detective Ridge says and I quote "Okay. The night you were in the woods, had you all been in the water?"  Jessie replies, "Yeah, we'd been in the water. We were in it that night playing around in it.  This is the first time in the record according to my analysis of it and according to Detective Ridge's testimony that it is directly suggested to Jessie that the correct answer is, "This happened at night."  Immediately upon that being suggested Jessie is -- responds by accepting and now he starts to use the word "at night", where he had never used it before, where he had consistently said it was during the day. It is in direct response to Detective Ridge's substitution and introduction into the interrogation the correct fact that this happened at night so Jessie now adopts that. That is an influence tactic. It is a way of getting someone to accept something out of pressure and out of suggestion.  Detective Ridge follows up with his victory on page thirty -- page twenty-four of the transcript at the bottom where Detective Ridge now capitalizing in my opinion on his victory at getting night into the story now seeks to do what I was describing before -- stabilize that -- by saying the following -- and again, this is introduced by Ridge and there is nothing preceding it from which this follows. He is choosing to return to this subject and he says, Okay they killed the boys. You decided to go. You went home. How long after you got home before you received the phone, call-- thirty minutes or an hour?"  Now there has been previous testimony about a phone call to Jessie at home at nine P.M. That's what Detective Ridge is referring to. But Detective Ridge now links this up with Jessie going home and gives Jessie the choice of having arrived home either thirty minutes or an hour before the phone call occurred, which would mean he's now suggesting to Jessie and elaborating on the story and getting Jessie to--as he next does -- Jessie says, "Uh" -- there's a silence and then he says, "An hour."  So Ridge had given Jessie a choice. You can either say you got home a half hour before the phone call or you can say you got home an hour before the phone call. Those are the only choices he's got. Jessie now chooses an hour.  Again, that's a tactic of influence. That is posing the question in such a way that you only have two choices. Either one of those choices, I win. Detective Ridge is using that technique.  Then we get to the second interrogation. That's the last time that the time subject comes up in the first interrogation. As we know at two forty-four in the afternoon -- at three-eighteen in the afternoon the first tape was finished. According to Detective Gitchell no one spoke with Jessie between then and the time that Detective Gitchell-- after meeting with the Prosecutor Fogleman-- went back in to get the statement that is labeled "Interview of Jessie Misskelley, Junior, Second Interview Conducted to Clarify Previous Statement."  The last two times you will recall that Jessie said that anything was brought up about time, Jessie had been successfully moved to talk about the events happening in the evening instead of in the morning which is where he started. So now Gitchell comes in and on page one of the second transcript begins with, "Jessie, uh -- when you got with the boys and with Jason Baldwin when you three were in the woods and them little boys come up, about what time was it when the boys come up to the woods?"  Jessie replied, "I would say it was about five or so five or six."  So Jessie is now moving in the direction of later but it's as if there is the original statement that he made about the morning and he's being slowly moved towards the evening but clearly in this statement he has not gone far enough because five or six I gather from what I've been informed about the testimony is too early for the boys to have shown up at the woods.  Now, we have---

MR. FOGLEMAN: Your Honor, I'm going to have to object to that Statement by this witness. There is no basis for him concluding that five or six is too early for this defendant and the defendants to show up in the woods. There is no basis for that.

THE COURT: Well, he's been talking for ten minutes. I guess that's been in response to a question. I don't know. What is your objection?

MR. FOGLEMAN: Your Honor, my objection is that he is testifying on things that are not in the record and have not been testified to.

THE COURT. Doctor, I'm -- I'm assuming that all of your testimony is based upon the testimony you've heard, the statements you've read and listened to, and the notes given by the officers.

THE WITNESS: Absolutely, your Honor, and specifically on this point the transcript says when the little boys come up. It is a specific statement about when the children arrived.

THE COURT.. All right. Mr. Stidham.

Q. Your last example, Doctor?

A. The next after failing to get the time moved to the proper time, Detective Gitchell uses another interrogation tactic. He now says -- and I quote from page one of the second transcript -- "All right, you told me earlier around seven or eight. Which time is it?"  And there are two important things about this. The first one is it's obvious that Detective Gitchell is doing the same thing that Detective Ridge has done earlier -- giving Jessie a choice. Pick one and I win or pick two and I win -- either seven or eight.  Gitchell can live with either answer and he's giving Jessie only those two choices. But what's even more important about this is that nowhere in the record, including the record of what the detectives say, the notes, the specific statements by Detective Ridge, the transcript of the first interrogation, is there any indication that Jessie ever said -- as Detective Gitchell says, "You told me earlier around seven or eight." There is an absolute absence of anything indicating that.  That's extremely important to me because what this illustrates is the legitimate interrogation tactic of making up evidence, of overstating, inaccurately stating the evidence. This is something that happens in police interrogations all the time. It is not something that it is my understanding is improper in police interrogations. It is something I see all the time and it is a tactic for manipulating the suspect and, in this case, based on my review of the evidence there is no place at which Jessie told Ridge ---told Gitchell that they had arrived there at seven or eight, And in fact Detective Ridge in his testimony in the hearing makes very clear that the very first time any time came up was when Jessie said, "Nine o'clock in the morning." And we have a complete record of every utterance from that point forward. So Detective Ridge who was present with Detective Gitchell says prior to the beginning of the tape no time was mentioned and we note every mention of time prior to that.  So it's my opinion that this is a tactic and it's a very effective tactic because Jessie now simply repeats back to Detective Gitchell what Gitchell told him. He says, "It was seven or eight." Jessie doesn't even make a choice. He just tells Gitchell everything that Gitchell told him. That's an indication of someone who is willing to comply and does not want to take any chances of making a mistake and therefore being punished for it through pressure.  Then there's some more discussion of that and -- and it changes again. But that's one example. There are many other examples of -- of illustrations of manipulation on important points throughout this record.

Q. Thank you, Doctor.

MR. STIDHAM: Pass the witness.

Q. Doctor, Just one question. It's certainly option for Jessie Misskelley to make the statement, I wasn't there. I didn't kill anybody. I didn't see anybody killed. I don't know anything about that. That is certainly an option that he could have used in talking to the police officers, is it not?

A. Yes, it is and may I explain?

MR. DAVIS: Your Honor, I -- I have no further questions.

MR. STIDHAM: Your Honor, I would like to give the witness the opportunity to explain that since the prosecutor brought it up.

MR. DAVIS: Your Honor, I don't think that question calls for a response.

MR. STIDHAM: Well, then it wasn't a question.

MR. DAVIS: Other than -- other than a yes or no response.

MR. STIDHAM: Your Honor, may the witness please explain his answer?

THE COURT: What -- what is the -- what explanation is necessary to that -- your answer?

THE WITNESS: The presumption that that's an option presumes that the person does not feel pressure and in fact the scientific literature on the subject of when one gets a coerced compliant confession is when the individual feels that they have no choice, cannot escape the situation---

MR. DAVIS: Your Honor---

THE WITNESS: ---and can no longer resist and therefore simply give up resisting and comply.

MR. STIDHAM: Nothing further, your Honor.



Q. Doctor, just one more time. When the person is being asked questions and they don't know anything about it, and they don't know any of the details, they can always say, I don't know. I don't know anything about it. I don't know the details you're asking me about. They can always say that, can't they?

A. They can and sometimes they get to the point at which they can no longer do that and so they simply give up.

THE COURT: All right, anything else?

MR. STIDHAM: No, your Honor.


THE COURT: Do you have any other witnesses?

MR. STIDHAM: Your Honor---

THE COURT: I'm not asking for it right now. I mean we've---

MR. CROW: Your Honor, we -- we are debating recalling one witness for like one question and we'll---

MR. STIDHAM: Your Honor, if I could have a few minutes with Mr. Crow, I think we can make a decision on that.

THE COURT: You're talking about recalling a witness?

MR. CROW: Somebody who's not here today, so it couldn't be today anyway.

THE COURT: Alright, we're gonna pack up. Alright ladies and gentlemen, we worked past three o'clock for a change. (Laughter) With the usual admonition not to discuss the case among yourselves or with anyone, I'm going to make an additional admonition to you. That you're not to discuss the case at home with your spouse or family. And you should make every effort that your spouses and your family don't discuss the case in the community. I have that problem with an 18-year-old daughter and a wife that are curious. But, it's also important that you give the appearance of impartiality as well as being impartial, so that little extra caution you might mention to them 'cause they're gonna try to talk to you. Tell them the Judge said I can't talk to you about the case, and you're not supposed to talk about it either. Ok? Alright you're free to go until 9:30 in the morning.

Misskelley Trial - State's Opening Statement (Fogleman) - January 26, 1994