Posts Tagged ‘confessions’

Today’s New York Time’s has an op-ed article by Professor Jennifer Mnookin of UCLA, “Can a Jury Believe What It Sees?  Videotaped Confessions Can Be Misleading”  Prof. Mnookin was a member of the group that helped produced the National Academy of Sciences 2009 report, “Strengthening Forensic Science in the United States: A Path Forward,” which took a skeptical view of non-DNA forensic sciences.  In this article, Prof. Mnookin trains her skepticism on one of the chief reforms advocated by those wanting to avoid wrongful convictions: recording interrogations.  Prof. Mnookin says advocates should be careful what they wish for: recording interrogations could prove misleading.

Mnookin begins by conceding that support for electronic recording of interrogations is growing in law enforcement; “firsthand experience with recording tends to turn law enforcers into supporters.”  And recording benefits defendants as well, “because the very presence of the camera is likely to reduce the use of coercive or unfair tactics in interrogation.”  But here’s her concern:

[A]ccording to recent research, interrogation recording may in fact be too vivid and persuasive. Even seemingly neutral recordings still require interpretation. As advertisers and Hollywood directors know well, camera angles, close-ups, lenses and dozens of other techniques shape our perception of what we see without our being aware of it….When the interrogator isn’t shown on camera, jurors are significantly less likely to find an interrogation coercive, and more likely to believe in the truth and accuracy of the confession that they hear — even when the interrogator explicitly threatens the defendant.

First thing to notice: Professor Mnookin is not saying that recording interrogations is a bad idea — quite the opposite.  She says, correctly, that recording helps both law enforcement and defendants.

Second, Mnookin says that even recording interrogations under the best protocol imaginable does not guarantee the elimination of false confessions.  Remember that the (false) confessions of the Central Park Five were recorded.  Recording won’t cure all ills.

Third, the research she points to that describes the problem of “camera perspective bias” contains the solution: a requirement that the recording must include both the interrogator and the suspect in the picture.

The take away: recording interrogations represents a positive development, but we can’t just flip on the recording equipment.  We need to have proper protocols for this practice.  For example, we must require recording the whole interrogation, not just the last part in which  the suspect confesses.  (I’ve made that argument  here.)  Adding a requirement to record both interrogator and suspect makes all the sense in the world.

 

 

 

On May 28, 2014, the Pennsylvania Supreme Court published two opinions about whether juries could hear from experts.  In Commonwealth v. Walker, the Court said an expert could tell the jury about the traps and weaknesses involved in eyewitness witness testimony.   But in Commonwealth v. Alicia, the Court  said an expert could not tell the jury about problems with the truthfulness of confessions.   Each opinion featured a different 4-2 vote among six of the Court’s Justices.

This juxtaposition seems so bizarre that the press in our state has noticed.  How does one court, on one day, publish two opinions on virtually the same issue, and end up facing in two completely opposite directions?

The explanation that jumps out from the opinions is the recognition of research and science.    In the Walker majority opinion, Justice Debra Todd discusses how much scientific work on eyewitness testimony has taken place in the last twenty years, since the Court last examined the issue.  In those decades, she says, “advances in scientific study have strongly suggested that eyewitnesses are apt to erroneously identify a person…when certain factors are present, ” and she cites the 2011 opinion of the New Jersey Supreme Court in New Jersey v. Henderson, widely regarded as one of the leading cases on the subject.  The scientific consensus is strong:  “it is beyond serious contention that the statistical evidence on eyewitness inaccuracy is substantial…”  Over the course of the last thirty years, forty-four states have recognized this scientific work and decided that trial courts may allow experts to testify about the problems of eyewitness identification.  Ten of the eleven U.S. Courts of Appeals have done so as well.  (False eyewitness identifications have occurred in almost seventy-five percent of all DNA-based reversals of wrongful convictions.)  Thus Justice Todd and the other Justices in the majority in Walker said that Pennsylvania must recognize the evidence that science has brought to bear.

In contrast, what does the Alicia opinion say about the science on the interrogation of suspects, and how various interrogation techniques may lead to false confessions? (False confessions have occurred in about twenty-five percent of all DNA-based reversals of wrongful convictions.)   Considerable scientific consensus exists on these issues as well; the leading scientists who work on the issue of false confessions published a standard-setting white paper, “Police-Induced Confessions: Risk Factors and Recommendation”  for the journal Law and Human Behavior five years ago. Somehow, this scientific work never even comes up in the Alicia opinion.  It is as if the research on false identifications simply does not exist.

Chief Justice Ronald Castille is at least consistent in these two cases: he wants no experts in court on either eyewitness identifications or confessions, so he dissented in Walker and joined the majority in Alicia.  Castille’s dissenting opinion in the Walker case gives us some insight into the thinking of those who want none of this science before the jury.  In his dissent, Chief Justice Castille scorns the very idea that there could be real scientific work on these subjects.  Indeed, he puts the words science or scientific in derisive quotation marks eight times in just the first three pages of his opinion.  While he admits that “a properly trained chemist can usually reliably explain the chemical composition of a substance,” science about human beings cannot claim any reliability: “studies of human beings, human nature, human perception, and human recollection inevitably have a heavy dose of subjectivity.”   Justice Castille’s position betrays a strong misunderstanding of what science is, and of the process of doing scientific work and of using the scientific method to test a hypothesis.  The real question is not whether we are dealing with so called “hard science” — work done with beakers and bunsen burners.  Rather, the question is whether the work is done reliably and rigorously, according to the scientific method, and in accord with principles and protocols that protect against human biases in the laboratory.  So for now, juries in Pennsylvania will have to do without the best scientific knowledge on why we might have false confessions.

But, even more important, the issue of whether experts can testify on these subjects is not a new one; courts in most jurisdictions resolved this issue years ago.  Instead, every institution that forms part of our criminal justice system in PA should be focused on prevention: establishing protocols for police to follow that will keep dangerous mistakes  eyewitness testimony and interrogation from happening in the future.   The research is there; the best practices are known.  Nevertheless, we remain stuck in the past, arguing about expert witnesses.

 

Of the 311 cases of wrongful convictions documented by The Innocence Project, about 25 percent include a false confession or false statement of guilt.  Yet false confessions remain the least understood type of justice system error.  Most people still ask, “why would anyone confess to a serious crime he did not commit, without physical abuse, a mental handicap or lack of sobriety?  I know I would never do that.”   Twenty years ago, I would have said the same thing.

Well, if you want to know how false confessions happen — how an innocent person could confess, even supplying details of how the crime was committed that only the perpetrator would know — and if you want to know how this could happen with a fine police detective operating according to the rules — you must listen to the latest episode of the radio show This American Life, called “Confessions.”  Here is the link to the show.  The story (one of several on the theme of confessions) runs approximately 28 minutes

A very brief summary, without giving anything away: A Washington, D.C. detective investigating a murder participated in the interrogation of the main suspect.  The woman denies any involvement at first, but after seventeen hours of questioning, she finally admits to participating in the crime, and supplies many incriminating details.  After the suspect is charged but before her case goes to trial, follow up investigation by police causes the case to fall apart, and a judge orders her released from jail after nine months.  The case is never solved.  Some years later, the same detective is assigned to a cold case unit, and he begins to look into the case again by watching a video tape of the interrogation.  What he sees reveals what went wrong, and it lays out an incredible lesson in exactly how the false confessions come to be.  And we learn that the video tape recording of the full interrogation was actually made just by chance; in the usual course of things, there would have been no recording, and none of this would have been discovered.

For anyone interested in police interrogation, for anyone still asking how an innocent person could ever confess, I cannot recommend this program more highly.  And it’s yet another endorsement of the idea that we must record interrogations if we are ever to solve this problem.

According to an article from the Syracuse Post Standard and syracuse.com, New York State has announced it will offer grants to law enforcement agencies for the purchase of equipment need to record police interrogations.  Governor Andrew Cuomo’s office announced the availability of the funding on July 15.  Recording interrogations, the Governor said, would prevent wrongful convictions and protect officers from false accusations.  In his words:

“Fairness and integrity form the foundation of our justice system and New York state is committed to providing local law enforcement with the resources necessary to improve the effectiveness of the process,” Cuomo said in a news release. “Wrongful convictions not only harm the innocent, but they allow the actual perpetrators of crime to remain free. The new equipment that will result from this funding will improve the strength of New York’s criminal justice system, making all New Yorkers safer as a result.”

What’s interesting to notice is how the issue is framed in terms of public safety and the integrity of the system.  Yes, recording will prevent the catastrophe of convicting the innocent, but at least as important, convicting an innocent person leaves the real predator on the street, able to kill or rape again.  And the thrust of the idea is to bolster the “fairness and integrity” of the system, because wrongful convictions eat away at both.

Readers, does New York State have mandatory standards, or any standards, for the recording of confessions?  Does your police department record interrogations?  The article states that “345 law enforcement agencies in 58 of the 62 counties statewide video record suspect interrogations, according to the governor’s office,” and supplies a partial list.

I’ve posted here about the ongoing review of cases in the Brooklyn DA’s office, many of them involving confessions taken by one man, now-retired Detective Louis Scarcella.  The  DA’s office has said that it is reviewing all of cases  in which confessions obtained by Scarcella played pivotal roles.  Now comes news that in some of these cases, experts see a disturbing pattern: many of the confessions use very similar phrases at crucial points.  The phrases “you got it right” or “I was there,” or both, recur in at least five of the confessions Scarcella obtained.

According to the Richard Leo, professor of law at the University of San Francisco and one of the foremost experts in the world on false confessions, “[i]t’s hard to imagine all five people used the same exact words…“It almost sounds like a template.”

In unrelated media interviews, Scarcella has uses these very words in a strikingly uncommon way, raising the question of whether the phrases that appear in the confessions came from the defendants, or from him.  According to one article:

In an interview with The New York Post last month, [Detective Scarcella] said he still remembered Mr. Ranta’s confession from a quarter century earlier: “I said: ‘You come from 66th Street. I come from 66th Street. We’re both Italian. Why don’t you tell me the truth?’ So he says, ‘Yeah, you’re right. I was there.’ ”

And talking about a different case during an appearance on the “Dr. Phil” television program in 2007, where he discussed the tactics he used to get suspects to admit their misdeeds, Mr. Scarcella recalled a similar conversation with a suspect. “He says to me, ‘Louis, you were right. I was there, but he kicked me, and I shot him by accident.’ I said, ‘Don’t you feel better now?’ And he’s now doing 37 ½ years to life.”

The review of Scarcella’s cases will continue to unfold, and we need to know whether his knack for getting confessions out of people, some of whom have claimed they never confessed, was due to his uncanny abilities to talk people into truthfully implicating themselves, or whether something else — perhaps something illegal — was going on.

With the news that the District Attorney of Brooklyn is re-examining convictions in 50 cases featuring the work of one particular detective (see stories here and here ), we see two issues that have surfaced on the Failed Evidence blog before: false convictions and Conviction Integrity Units (CIUs).

First, the cases under re-examination all involve retired NYPD Detective Louis Scarcella, who had a penchant for getting confessions out of suspects when other detectives could not. According to Scarcella, “there were cases where suspects talked to one detective and they got nothing, and they called me and I got statements. A lot of guys don’t know how to talk to people.”   Some of these suspects who allegedly confessed said that they had told Scarcella nothing.  Scarcella also relied regularly on testimony from one particular drug-addicted prostitute; among the many times she served as Scarcella’s “go-to witness,” she gave crucial eyewitness testimony in two separate murder cases against the same man.  According to one prosecutor who had the woman testify in two trials, “It was near folly to even think that anyone would believe [her] about anything, let alone the fact that she witnessed the same guy kill two different people.”

But there is also this: the re-examinations are being handled by the Brooklyn DA’s Conviction Integrity Unit (CIU), which I wrote about in connection with the exoneration and release of David Ranta, here.  As readers of the Failed Evidence blog know, CIUs are  dedicated units within prosecutors’ offices, just like  homicide or fraud units, that take on the task of re-opening old convictions now in doubt.  The first CIUs were established by DA Craig Watkins in Dallas and former DA Pat Lykos in Houston, and they have begun to pop up in other places.  In New York, both the Brooklyn DA and the Manhattan DA have established CIUs.

The CIU model for examining possible wrongful convictions isn’t perfect; a CIU is, by its nature, not independent of the DA’s office, and could be stopped in its tracks or dismantled completely just as easily as it could be created.  But as I’ve argued here before, they at least represent a step toward accountability for wrongful convictions, in a field in which too few elected prosecutors will touch prior convictions at all.  We should pay careful attention to how this large-scale investigation by the Brooklyn DA’s CIU works out; it will say a lot about whether CIUs can be part of the solution going forward.

 

In my previous post, I included a link to Psychology Today’s Shadow Boxing blog, which carried a brief interview in which I was critical of the Reid Technique, the most commonly used technique for interrogation taught in American police training.  This prompted an email to me from Joseph Buckley, the President of John T. Reid and Associates, Inc., in which he defended the Reid Technique.  I advised Mr. Buckley that I could not include his entire missive, but would be glad to include some of it.  He said, in part:

False confessions are not caused by the application of the Reid Technique, they are usually caused by interrogators engaging in improper behavior that is outside of the parameters of the Reid Technique – using improper interrogation procedures – engaging in behavior that the courts have ruled to be objectionable, such as threatening inevitable consequences; making a promise of leniency in return for the confession; denying a subject their rights; conducting an excessively long interrogation; etc.

Mr. Harris suggested that the goal of the Reid Technique is to get a confession – that is not correct; it is to learn the truth.

On page 4 of our training manual and page 5 of Criminal Interrogation and Confessions (5th ed, 2011) we state that the objective of an interrogation is to elicit the truth from a subject, not a confession.

In a subsequent email, Mr. Buckley suggested this link to his web page,  particularly the entry for March 11, 2012.

For my part, I stand by what I told Shadow Boxing, and I stand by everything I said about the Reid Technique in my book, Failed Evidence: Why Law Enforcement Resists Science.

For starters, I did say that the goal of the Reid Technique is to get a confession.  Mr. Buckley says that isn’t true.  What he doesn’t say is that until 2011’s fifth edition — through all of the previous editions — what the book said was “an interrogation is conducted only when the investigator is reasonably certain of the suspect’s guilt” (or words to that effect). This statement was changed after many commentators quoted it as perfectly descriptive of the Reid Technique’s reliance on an underlying assumption of guilt for all interrogations.  But even after changing the statement, the presumption of guilt underlying the whole process did not change.

But to me, what this comes down to is which side, Mr. Buckley or his many critics, have the science behind them.  On this dimension, it’s not a close call.  Rather than pull all of this out here, take a look at an excellent article by Keith Findley and Michael Scott, “The Multiple Dimensions of Tunnel Vision in Criminal Cases.”  (The link is to the abstract; you can then download the article for free.) Go right to page 333–340, where the authors lay out the case against the Reid Technique and (unlike Reid’s own materials) support their arguments with a vast amount of research literature.  Here’s a small slice (with footnotes omitted):

[T]he process of assessing an interview is likely to produce misjudgments about the suspect’s veracity and guilt. Police are trained to look for signs of deceit in the interview process to help them determine whether to shift from an interview to an interrogation. Police also use their interpretations of guilty responses to help them shape the remainder of their interrogation, and the content of their testimony at trial. Yet, considerable research indicates that people are poor intuitive judges of truth and deception.  In clinical studies, people consistently perform at only slightly better than chance levels (with typical accuracy rates of about 45 to 60 percent, when chance is 50 percent) at distinguishing lies from truth…Indeed, most studies indicate that trained detectives and others with relevant on-the-job experience “perform only slightly better than chance, if at all,” and do not perform more reliably than untrained individuals…Additionally, the signs that police officers are trained to believe indicate lies are not empirically related to lie detection…Research confirms that most police officers rely on such indicators.  But research also convincingly shows that such cues are not indicative of fabrication, and can actually reduce accuracy.

Read and evaluate.  You decide.

In another sign that resistance to better, science-based practices will eventually have to yield, a news report indicates that a member of the South Carolina has  introduced a bill that would require police to record interrogations of suspects.

The bill, proposed by Rep. Todd Rutherford of Columbia, “would require judges to instruct jurors that they could ‘draw an adverse inference’ if a law enforcement officer failed to record the questioning of a suspect unless there was an equipment failure.”  That required instruction would effectively require that the police record interrogations, because jurors would hear from the court that the interrogation might be suspicious.

Even if the bill does not pass, the significance of the proposal is hard to miss.  An increasing number of states and jurisdictions require recording of interrogations under various circumstances (see the Innocence Project’s map here), and the research shows that the recording requirement does not harm the investigation process.  In fact, recording turns out to be a great help to the police overall.  The research of Thomas Sullivan on the practical effects of recording has been particularly insightful and helpful on this issue, and academics such as Richard Leo, Saul Kassin, and Richard Ofshe have made tremendous contributions in the area of false confessions and why recording can help.

More to the point, South Carolina would not be viewed by anyone as a jurisdiction that has been particularly favorable to defendants on criminal justice issues.  The fact that the legislature in South Carolina now has a proposal to consider on recording interrogations means that, little by little, we are nearing a tipping point, which will bring us closer to what the scientific research shows us.

 

An article titled “Lawyers, Saying DNA Cleared Inmate, Pursue Access to Data” tells the story of the case of Joseph Buffey, a man imprisoned in West Virginia for 70 years for rape.  And Buffey’s story tells us something disturbing: control of DNA evidence in most states is in the hands of law enforcement.  Unfortunately, this can block defense efforts to get at the truth.

Buffey’s case features something common to more than a quarter of DNA exonerations: he confessed, and later entered a guilty plea and apologized, at the urging of his lawyer.    But Buffey then recanted his confession and maintained his innocence.  Years later, defense lawyers got the physical evidence tested, and the DNA did not belong to Mr. Buffey.

Defense lawyers then asked the state to run the sample against the state’s DNA database (known as CODIS, which stands for Combined DNA Index System).  The idea, of course, was that the DNA might have come from a person whose DNA was already in the database.

The state of West Virginia’s reaction: no thanks.  According to the article, the authorities in West Virginia said that “the state does not believe such testing will or can prove the defendant’s innocence after his guilty plea.”  West Virginia is one of the other thirty-one that do not give a defendant the right to have the sample run through the DNA database.

After 18 months of legal wrangling, West Virginia agreed to the test.  The result: the DNA belongs to a man incarcerated in another state prison with a history of assaulting women.

Naturally, Buffey’s lawyers are now working to get him out of prison.  But the more important thing to notice is that in West Virginia, as in most other states, DNA databases, constructed at great public expense, remain in control of one party to criminal cases: the prosecution.  They, and they alone, decide whether testing will be done, and under what circumstances.  And while we can certainly hope that requests to run DNA through the database will be granted, it can also be withheld when the state simply decides that this is not in its interest.

But the article contains something I had not seen before.  Scott Burns, executive director of the National District Attorneys Association is quoted as saying that he sees the failure to run DNA samples through CODIS as a problem that must be solved.

We, as law enforcement and prosecutors, are obligated to seek the truth and follow the evidence, and DNA should be entered into Codis,” said Burns.  “It seems like there should be laws for it, and I agree that the defense should be given the information.

Hats off to Mr. Burns and the NDAA if this is their official position.  (I say “if” because they have not always been open to such changes.)  In the next few days, I will attempt to confirm that the impression given by the story — that the organization would join in an effort to assure that DNA in a case like Buffey’s should be run — is correct.

There is more talk than ever about how to safegaurd the criminal justice system against false confessions.  One reform that can help avoid these catastrophic errors is for police to record in-custody confessions.  With a recording of the entire interrogation (not just the part where the subject admits his or her involvement), the worst abuses are curbed, the jury or judge can see and hear exactly what happened, and there are many fewer legal issues about whether Miranda warnings were properly given.  The results, according to the police departments that have been required under state law to do this for years (most notably, Minnesota since 1994 and Alaska even earlier) have been almost uniformly positive.

Thus I was encouraged by a news item I saw from Pennsylvania, my home state, in which a county prosecutor seemed to take a forward-looking stance: she was launching a pilot program in which county detectives will record interrogations of murder suspects:

“Police and prosecutors need to be on the front lines of making sure we are doing things the right way … It’s up to us to do our jobs with integrity and maintain integrity in our investigations,” Montgomery County District Attorney Risa Vetri Ferman said…[S]he said she was drawn to the issue after serving as a member of the Joint State Government Commission’s advisory committee on wrongful convictions. The committee issued a report in the fall of 2011.

Applause for Ms. Fermin…except for one thing.  She is against any requirement that recording  be mandatory.  Rather, police and prosecutors should get to decide for themselves whether they want to do this.

“When you’re working in law enforcement and you’re working on the street … you learn there are any number of ways to do” things, Ms. Ferman said. “Why would you try to hamstring police? The goal should be: do it right, do it properly, do it with integrity and do it fairly.”

I can’t agree.  First, police and prosecutors in Pennsylvania have the power, right now, to decide to make recording of interrogations standard practice.  Despite the fact that it is universally applauded by law enforcement in every jurisdiction in which it is required — see the many comments here and in Failed Evidence from police and prosecutors experienced with recording — most agencies still don’t do it.  Second, recording really does make for better law enforcement and better outcomes and fewer false confessions. So there comes a time when those resisting should not get to continue to resist, just because they think they know better.

If a doctor wanted to keep using leeches because he thought he knew better, would we let that continue?