primitivefuture
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Also, Burnett ruled against the defense on the following issue during Ofshe's testimony. This is the day after ruling for the prosecution on essentially the same line of questioning during Holmes' testimony, if I'm reading it correctly. I have the bit from the Holmes testimony posted below as well.
(Fingers crossed that I get it right on my first attempt at bolding portions of the text.)
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Stidham: Doctor, is it possible for police interrogation tactics to produce a false confession?
Ofshe: 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---
BY THE WITNESS:
Ofshe: ---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.
(THE FOLLOWING DISCUSSION WAS HELD AT THE BENCH OUT OF THE HEARING OF THE JURY. )
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.
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---
MR. CROW: No.
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.
(RETURN TO OPEN COURT. )
THE COURT: Objection sustained.
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During the Misskelley trial, Davis is questioning Warren Holmes and there is this exchange:
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Q: Now, theres certainly nothing unusual about a defendant recanting a confession, is there?
A: No.
Q: In fact, wouldnt you agree that in 99% of the cases where a defendant has confessed to a crime and they then recanted, in 99% of those cases, the defendant is guilty?
A: Yes.
Q: And, in fact, you teach in your seminars, dont you, that you dont expect defendants to keep reiterating their confessions?
A: True.
Q: In other words, once somebody tells their involvement in a crime, then you dont expect them to come back and tell other people, correct?
A: Correct.
Q: And, in fact, it would be the rare exception if they did that, correct?
A: Correct.
Q: So, in this case, this defendant recanting his confession .
Crow: [interrupting] Im going to object, your Honor. Can we approach the bench?
Bench Conference:
Crow: I dont care what the percentages are as to what other peoples [unintelligible] guilt or innocence. Thats showing other peoples innocence---guilt or innocence to infer that this clientthis individual is guilty [unintelligible].
Davis: Hes indicated his opinion.
Crow: Yes, your Honor [unintelligible] can not be shown [unintelligible] guilt of Mr. Misskelley. Just like thejust like evidence of a crime that afternoon can not show guilt or innocence of Mr. Misskelley. I think [unintelligible] its the exact same thing, your Honor [unintelligible] we have a rule.
The Court: Well, I mean I dont think hes capable of testifying whether or not the statement was true or false.
Crow: [interrupting] Right, your Honor.
The Court: [continuing] or whether or not Mr..Mr. Misskelley is guilty or innocent, if thats what youre saying.
Crow: Yes, your Honor but I dont want like him testifying unless the response is [unintelligible] other people are or not, its not the issue in this court, your Honor.
The Court: Well, but the issue here is thisthis guy is an expert in interrogation and interrogation techniques and the issue that youve raised is a false confession
Crow: [interrupting] Yes, your Honor
The Court: [continuing] an untrue confession and Im not really sure you raised that but, at least, a coerced confession.
Stidham: Its certainly outside the scope of direct.
The Court: I dont think so. I thinkdont, dont go too far in that area but Im going to allow you to pursue it.
Crow: [unintelligible]not the right rule in my mind but is it 404 [unintelligible]?
The Court: 404? 404b? Thats in
Crow: [interrupting] [unintelligible] maybe Ive the wrong one
The Court: Ive got it right here. I think its 405.
Crow: It may be, your Honor. [Pause]. Thats not it.
The Court: Thats 404.
Crow: Its just like evidence of a crime whether it be of this defendant or another defendant, your Honor, are not admissible to prove guilt or innocence butbut only--only admissible to prove whats in the rule, the guilt or innocence of other individuals in Mr. Holmes career. Hes---whats hes proffering the question--the way hes proffering
The Court: [interrupting] But this isnt character evidence.
Crow: I understand that. The way hes proffering the question is 99% of the people who confess are guilty. Now thats .
Davis: [interrupting] This guys an expert in the field.
Crow: Yes, but a lot of people are, doesnt mean [unintelligible].
Fogleman: [unintelligible] Listen, hes trying to testify
The Court: [interrupting] Im going to allow you to pursue that line of questioning but I dont want you to attempt to elicit from him whether or not the statement was true or false and whether or not the defendant was guilty or innocent and Ill sustain an objection on those points.
Stidham: Thank you, your Honor.
The Court: You're welcome.
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Initially, it appears that Burnett is agreeing with the defense, but then he goes ahead and allows the prosecution to pursue the same line of questioning again, overruling when defense makes the same objection again.
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Q: In your lectures to law-enforcement officers, you specifically address that area regarding matters that are unresolved or that are inconsistent concerning statements by witnesses, do you not?
A: Thats the nature of our existence. Theres always something you cant resolve. Theres always the inexplicable.
Q: And, isnt it true that in instances where a defendefendant makes incriminating admissions regarding his involvement, that its your opinion that 99% of the time those people are guilty?
Crow: Your Honor, Im going to raise the same objection. I feel thats a totally improper question.
Davis: Your Honor, ImIm asking him hishis opinion regarding that.
Stidham: Your Honor, he should ask him his opinion regarding the defendant.
The Court: I know
Fogleman: [interrupting] The Courts already ruled thats improper.
The Court: Go ahead. Im going to allow it. Overruled.
Holmes: I agree.
By Davis:
Q: So you would agree that if people make incriminating admissions regarding their involvement, then 99% of the time theyre guilty?
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Good grief. I posted that all from my phone and it was a pain. I hope the way I presented it makes sense. I'm new and still don't know how to separate portions into those nifty grey boxes. If someone could let me know how to do that from my phone, I'd appreciate it. Thank you.
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