4.Offer of Proof and Ruling on Armentrout's Rebuttal Testimony
48 lines(Jury out at 1:54 p.m.)
THE COURT: All right. You may be seated. Mr. Kratz, it's my understanding that the prosecution proposes introducing some rebuttal testimony this afternoon; is that correct?
MR. KRATZ: Yes.
THE COURT: And I -- we have discussed this briefly in chambers before coming here, all counsel, uh, together with the Court, uh, and I said to you that before rebuttal testimony would be permitted, I would have to hear from you an offer of proof as to who was going to testify and, uh, specifically, on what particular issues was he or she going to testify.
The general rule is that rebuttal may meet only new material, or new testimony, new facts, put in by the defendant. Uh, essentially, it's -- the Court has a fair amount of discretion in permitting or rejecting rebuttal testimony. Uh, with that said, Mr. Kratz, are you prepared to make an offer of proof?
MR. KRATZ: I can either do that orally or I can do that by question and answer, Judge. I think if I do it orally, that would, uh -- that would suffice. But, uh, if you want a more detailed version, we can do that. How about I try it orally first, and then --
THE COURT: Please.
MR. KRATZ: -- then we'll see. We do intend to call, uh, James Armentrout, clinical, uh, psychologist. Uh, that CV was provided to Mr. Fremgen this morning. It was sent over the evening hours to the D.A's Office here, and I provided it, as the Court, uh, wished.
Dr. Armentrout has brought with him, uh, his original CV, and I believe he will be, unm, recognized as a -- an expert, given his clinical psychology background, as well as the number of times he's been accepted in, uh, this and other states as an expert.
The new testimony, Judge, that's been presented by Dr. Gordon, are on the issues of suggestibility. Uh, and, specifically, uh, whether or not, uh, psychologists, whether forensic or clinical, uh, psychologists, um, render opinions in an expert capacity in that area. Uh, specifically, the issue of whether, uh, suggestibility is a specialty or sub-specialty, uh, is of issue in this case, and I believe Dr. Armentrout can testify about that.
More importantly, however, Dr. Armentrout is familiar, because of the discovery provided by Mr. Fremgen, with the tests, reports and opinions, uh, which have been completed by Dr., uh, Gordon. Uh, Dr. Armentrout is prepared to comment as to, uh, those reports, as to each of the specific tests, how they were administered, uh, and, again, perhaps, most importantly, the opinions that, uh, may be drawn, uh, therefrom.
Uh, Dr. Armentrout, specifically, and finally, uh, will give, um, uh, an opinion, uh, regarding the, uh, ultimate opinion rendered by, uh, Dr., uh, Gordon, uh, and may, in fact, disagree that the test results, um, at least from his review of those same materials that Dr. Gordon has provided, uh, may lead to that result.
I anticipate the rebuttal testimony, uh, to be a half an hour or less. Uh, will, ina very strict sense, be rebuttal. That is only what Dr. Gordon, uh, has testified about, and we are prepared to proceed in that fashion.
THE COURT: Before I -- I get to Mr. Fremgen, I'm just reviewing my notes, haphazard as they are, but, uh, it was my recollection that Dr. Gordon claimed that, uh, false confessions and suggestibility was neither a specialty nor a sub-specialty. Did I miss that?
MR. KRATZ: That it -- it remains, uh -- it remains an issue, Judge. Uh, whether, uh, this -- whether Dr. Gordon, um, believes he, or any other psychologist, is, um, qualified or capable to render an opinion as to suggestibility, uh, is very much at issue. Dr. Armentrout has an opinion about that and I intend to ask him about that.
Uh, he will describe, specifically, what suggestibility is, and is familiar not only with the practice of, uh, clinical and forensic, uh, psychology, um, but also, uh, trial or courtroom, uh, testimony. Uh, and that the, uh, opinions, um, reached by Dr., uh, Gordon, uh, he, I believe, will opine, uh, is, uh, nothing more, uh, than a combination or culmination of descriptive terms, and do not, in fact, uh, rise to the level of, uh, an expert opinion that can, in fact, be reached by a psychologist, whether forensic or clinical.
THE COURT: That's a good answer, but it wasn't to the question that I asked of you. Namely, that, uh, it was my understanding, based on Dr. Gordon's testimony, that he did -- was unclaiming either sub-specialty or specialty status for, uh, the suggestibility. I -- and I'm asking, did I -- did I misunderstand?
MR. KRATZ: No. It's -- it's -- it's as to whether or not an expert opinion that is within the field of forensic or clinical psychology, uh, whether this is a recognized, uh, area of expert opinion. He will say, no. And this jury, uh, who has, uh, been led to believe that, uh, it is, uh, by Dr., uh, Gordon, and I understand that might be a question of fact, but I guess that's the point, Judge, it's as to whether or not, uh, this jury should be, uh, left with the unchallenged, uh, position that, uh, in fact, this is somehow sanctioned by the psychological community. The fact of the matter is, it is not, and I should be able to, uh, go into that line of questioning.
THE COURT: Mr. Fremgen.
MR. FREMGEN: Well, I -- I think that line of question should have been addressed to Dr. Gordon, first, before he brings in rebuttal. And I al -- also agree with the Court. My recollection is, specifically, the doctor said that the suggestibility is not a sub-specialty. In fact, I think he said forensic and clinical are sub-specialties of general psychology.
I don't understand how that's even an issue. Um, it seems, also, to be somewhat more directed towards the ad -- admissibility issue that we've already addressed previously.
Um, I -- at this point, I guess I don't have any problems if Dr. Armentrout testifies about tests, his opinions about these tests. Uh, but as to rebutting his -- the conclusions, and, suppose, we'd have to hear more, I recall when I offered my proof -- the offer of proof to the Court, we offered, also, as much detail, as you possibly could, into Dr. Gordon's, um, understanding of the issue of suggestibility and the research in that field.
Dr. Armentrout's, um, Curriculum Vitae essentially indicates he has a Ph.D in child psychology. Many of his, uh -- in fact, almost all but possibly three or four of his papers or publications deal with, primarily, families, parents and children. And his current, uh, position with the Department of Community -- or Human Services in Calumet County, and vocational rehabilitation, SSI -- or excuse me -- social security determination, um, none of it shows any significant or any -- or, actually, none of it shows any, uh, involvement in any sort of forensic type of, uh, uh, expertise.
So, I -- I -- I question whether he even has the ability to -- to answer, directly, other than to simply say whatever the State asks him to say.
THE COURT: Response?
MR. KRATZ: Uh, Dr. Gordon's published, uh, papers are on Rorschach tests and abortion. That because -- and I think it points out, Judge, because this is the first time, at least that we've seen, that this area, uh, is being ventured into, I wouldn't expect there to be a lot of publications or a lot of testimony on this issue.
I think it's recognized, at least in this area, certainly before this Court, and the first time that, uh, myself or Mr. Fremgen have addressed this, that this area has been allowed in trial testimony.
Uh, as far as Walstad goes, this doctor, uh, I believe to be, uh, able to render relevant, rebuttal testimony as to the last.
THE COURT: Mr. Fremgen, anything else?
MR. FREMGEN: No, Judge.
THE COURT: Uh, the Court is going to permit Dr. Armentrout to testify as a rebuttal witness. I'm going to limit the testimony to the tests, the interpretation of those tests, and, assuming that a foundation is -- sufficient foundation is laid, and, again, I haven't seen his CV, nor have I seen a written proffer of what it is he's going to say, but assuming a sufficient foundation has been laid, he can give testimony as to the opinions of Dr. Gordon.
Uh, I'm not interested in hearing whether he believes, uh, suggestibility or the GSS is a specialty or sub-specialty of -- of, uh, psychology or forensic psychology. Now, with that said, uh --
MR. KRATZ: The GSS is a test. I assume he can talk about that?
THE COURT: Assuming he -- assuming he can lay a foundation, yeah. The Gudjonsson Suggestibility Scales.
MR. KRATZ: Yeah.
THE COURT: As long as there's a foundation, he can talk about it, yeah. Because that's -- that is one of the tests, apparently, that you wish him to comment on.
MR. KRATZ: I do.
THE COURT: All right. Are you prepared to -- what --
MR. KRATZ: If I could have 30 seconds to -- to -- to frame -- or at least to talk to Dr. Armentrout about that --
THE COURT: That's fair. But, before you do, uh, prior -- one item -- minor item of unfinished business, uh, Mr. Fremgen, over the lunch hour, was going to review his file to determine whether or not there were any -- any other pieces of information that you were entitled to under the discovery order, under nine seventy-one twenty-three, and if there weren't, uh, we would let the matter pass. Has he done that?
MR. KRATZ: He has. Uh, Mr. Fremgen has explained why I didn't get the, uh, information that Dr. Gordon, um --
MR. FREMGEN: It was my fault, Judge, not Dr. Gordon.
MR. KRATZ: Correct. Correct. If I can finish.
MR. FREMGEN: Actually, it was Ray's fault.
THE COURT: Let -- let's -- let Mr. Kratz finish, please.
MR. KRATZ: He explained why it was that the discovery order was not complied with. I find that to be, uh, a reasonable explanation and I have no further, um, uh, comment to make to the Court. I'm satisfied with Mr. Fremgen's representation.
THE COURT: All right. The matter --
MR. KRATZ: And I don't blame Ray, like Mr. Fremgen.
THE COURT: Matter is dropped, then. How much time do you need, Mr. Kratz?
MR. KRATZ: Just a minute, Judge.
THE COURT: Okay.
(Recess had)
THE COURT: You may proceed, Mr. Kratz.
MR. KRATZ: Don't we need the jury?
THE COURT: Oh, that's true. We could use them.
(Reconvened at 2:10 p.m. Jury in)
THE COURT: Be seated. Before we proceed, uh, Mr. Fremgen, I take it you've rested at this point?
MR. FREMGEN: Yes.
THE COURT: On the record?
MR. FREMGEN: Yes.
THE COURT: Okay. You may now proceed.
MR. KRATZ: Thank you, Judge. The State will call James Armentrout to the stand.