Military Judge finds Dr. Ofshe theory regarding coervice interrogations was not based on rigorous scinetific analysis or even subject to scientific testing but was rather Dr. Osfhe's own subjective review of a group of particularly selected cases.
Written By:
Reid
Aug 12, 2007
In the case of US v Wilson, the U.S. Navy-Marine Corps Court of Appeals upheld the trial judge's decision to exclude Dr. Richard Ofhe's testimony.
In their decision the Court of Appeals stated:
"In essence, the military judge found that Dr. Ofshe's theory regarding coercive interrogations was not based on rigorous scientific analysis or even subject to scientific testing but was rather Dr. Ofshe's own subjective review of a group of particularly selected cases. By way of example, at one point Dr. Ofshe testified that his theory concerning the impact of certain police interrogation techniques on the danger of false confessions was as intuitive as the fact that the sun will come up each day. Essentially he argues that we can't necessarily prove causation but we just know how it works. Id. at 5, Record at 1202.
The military judge's finding that the proffered theory was not scientifically sound was wholly supported by the affidavits of Professor Cassell and LtCol Slicner. Professor Cassell, after noting that he is familiar with Dr. Ofshe's research, opines that Dr. Ofshe's theories "have not been sufficiently tested ... have an unacceptably high rate of error ... depart from accepted standards ... and have not been accepted in the relevant scientific community...." Appellate Exhibit LXVII at 2. LtCol Slicner, opining more generally on research into the causes of false confessions, observes that to her knowledge there are no "scientifically reliable studies" that associate particular personality traits or the nature of the interrogation with false confessions. She opines that one cannot "hold so many unusual and diverse variables constant in order to study the effect of one or more clearly identifying variables." Appellate Exhibit LXVIII at 2.
Having determined that Dr. Ofshe's theory was not based on sufficient scientific rigor to be reliable and that it was not widely accepted within the relevant scientific community, the military judge went on to rule that the witness could testify only to his rather commonsensical opinions that "false confessions do occur" and that "some persons have, after certain techniques have been used, made false confessions." Appellate Exhibit LXXII at 5. The military judge then found, as the appellant asserts, that the opinions Dr. Ofshe could legitimately testify to were not beyond the experience of the average member and therefore of such minimal value as to be substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. The underlying basis for the military judge's decision, however, was that Dr. Ofshe's expert opinion testimony was not scientifically reliable. We find, therefore, that there was ample evidence supporting the inadmissibility of Dr. Ofshe's expert testimony and that the military judge did not abuse his discretion when he excluded it."
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In their decision the Court of Appeals stated:
"In essence, the military judge found that Dr. Ofshe's theory regarding coercive interrogations was not based on rigorous scientific analysis or even subject to scientific testing but was rather Dr. Ofshe's own subjective review of a group of particularly selected cases. By way of example, at one point Dr. Ofshe testified that his theory concerning the impact of certain police interrogation techniques on the danger of false confessions was as intuitive as the fact that the sun will come up each day. Essentially he argues that we can't necessarily prove causation but we just know how it works. Id. at 5, Record at 1202.
The military judge's finding that the proffered theory was not scientifically sound was wholly supported by the affidavits of Professor Cassell and LtCol Slicner. Professor Cassell, after noting that he is familiar with Dr. Ofshe's research, opines that Dr. Ofshe's theories "have not been sufficiently tested ... have an unacceptably high rate of error ... depart from accepted standards ... and have not been accepted in the relevant scientific community...." Appellate Exhibit LXVII at 2. LtCol Slicner, opining more generally on research into the causes of false confessions, observes that to her knowledge there are no "scientifically reliable studies" that associate particular personality traits or the nature of the interrogation with false confessions. She opines that one cannot "hold so many unusual and diverse variables constant in order to study the effect of one or more clearly identifying variables." Appellate Exhibit LXVIII at 2.
Having determined that Dr. Ofshe's theory was not based on sufficient scientific rigor to be reliable and that it was not widely accepted within the relevant scientific community, the military judge went on to rule that the witness could testify only to his rather commonsensical opinions that "false confessions do occur" and that "some persons have, after certain techniques have been used, made false confessions." Appellate Exhibit LXXII at 5. The military judge then found, as the appellant asserts, that the opinions Dr. Ofshe could legitimately testify to were not beyond the experience of the average member and therefore of such minimal value as to be substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. The underlying basis for the military judge's decision, however, was that Dr. Ofshe's expert opinion testimony was not scientifically reliable. We find, therefore, that there was ample evidence supporting the inadmissibility of Dr. Ofshe's expert testimony and that the military judge did not abuse his discretion when he excluded it."