Dr. Ofshe's Testimony

In the Circuit Court of the Sixth Judicial Circuit of the State of Florida in and for Pinellas County Criminal Division State of Florida - CASE NO.: CRC99-18956CFANO Division: M - Nathan Brinkle - SPN: 01659274; Defendant. Order Denying Defendant's Motion to Suppress #3, Motion to Suppress #4, and Amended Motion to Suppress #4 (Heard February 14, 2002, April 18,2002, and May 10, 2002)....Dr. Ofshe's Testimony - After carefully listening to his testimony offered at the May 10, 2002 hearing, the court specifically declines to adopt any of the expert testimony offered by Dr. Ofshe. As explained below, the court found his testimony to lack credibility. First, the court specifically finds that Dr. Ofshe's testimony on cross-examination, in a few critical areas, was wholly inconsistent with his testimony on direct-examination....

This observation leads the court to discuss another area of concern about Dr. Ofshe. It is clear to the court, after reading the transcript of the interview conducted at the Pinellas County Jail, that Dr. Ofshe did, in fact, ask the defendant numerous leading questions, and that he did indeed suggest to the defendant that he was bated, coerced, and improperly motivated during the interview (e.g., page 26, line 15:

Dr Ofshe: "You have to understand that they're playing a game with you."). During the interview, Dr. Ofshe repeatedly suggested and even told the defendant that he was manipulated and coerced, after which the defendant then stated: Okay. Now I'm catching on to what's going on here.... For hours I was kind of lost before. I know she [defense counsel] told me what you was coming to really do, but, you know, until you get into it, until I get into it, you know, it really then- it's really not dawned on me. [Transcript of Interview at Pinellas County Jail: pages 20-21 ].

That the defendant was ill prepared for the interview does not, in the court's opinion justify a blatant attempt to "coach" the defendant or convince him that he was psychologically coerced. Although this arguably goes to the defendant's theory of the case and the preparation thereof, it is a factor that the court can consider as the fact-finder to determine the expert witness' credibility. For all of the reasons listed above, the court rejects the testimony of Dr. Ofshe, finding him to lack credibility. In deciding to reject his testimony for purposes of these pretrial motions, the court makes no comment on the admissibility of Dr. Ofshe's testimony at trial or whether he is qualified as an expert to testify at trial. Boyer v. State, 2002 WL 925015, 27 Fla. L. Weekly D 1113 (Fla. 5-th DCA 2002) (holding that the trial court erred in excluding Dr. Ofshe's testimony at trial after finding him qualified to testify as an expert where Dr. Ofshe's testimony went to the defendant's main defense).

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