Posts Tagged ‘criminal justice reform’

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.

 

In my last post, I discussed the significance of the new US DOJ policy, effective July 11, that creates a presumption that all federal law enforcement agencies — the FBI, the DEA, ATF, and all the rest, will record interrogations of suspects.  This will put these federal agencies on par with the several states and many hundreds of state and local departments that have recorded interrogations for years, as a matter of course.

I commented that, without access to the DOJ memorandum itself, there was no way to know whether the new policy would require recording of the whole interrogation, or just part of it (usually, the part that shows a confession, but not what lead up to it).  I promised to post again when I had more information.

The full DOJ memorandum is now public, and it requires that the agency records the full interrogation: not just the confession, but the whole session.  Here’s what the memorandum says:

I. g.   Scope of Recording.  Electronic recording will begin a soon as the subject enters the interview area or room and will continue until the interview is completed.

For proponents of recording interrogation, this is good news.   A partial recording could only give a partial picture of what went on in the interrogation room.  At worst, a partial recording could be downright misleading; at the very least, a recording that only contained the confession at the end of the interrogation would tell us nothing about the context — about how the police obtained the interrogation.  So the Scope of Recording requirement is a very important part of an effective recording system.

According to reports this morning by the Arizona Republic, National Public Radio, and other outlets, the U.S. Department of Justice has decided that federal law enforcement agencies, including the FBI, will electronically record interrogations of people in custody.  This will bring the FBI, DEA, ATF and other federal law enforcement agencies into line with the best practices in law enforcement that have been adopted (in whole or in part) in 20 states and hundreds of individual U.S. police departments, as well as a number of other countries.

Former members of federal law enforcement call this change a “radical departure” and the end of  “an insane policy.”   These descriptions seem correct, since the FBI has been one of the law enforcement agencies most resistant in the U.S. to change on this issue.  The new policy — a presumptive requirement, with exceptions for imminent, life-threatening danger and for national security intelligence-gathering interviews — will take effect on July 11.

(One important fact to note: the information available so far does not indicate whether the new policy will require recording of the entire interrogation — that is, beginning with the administration of Miranda warnings and continuing through to the end of the interrogation.  This requirement is absolutely necessary, because without it, interrogations will contain only the confession of the suspect at the end, without showing its full context.  I am looking for more information on this now and will post again when I learn something about it.)

 

As recently as 2006, the FBI said in a confidential memorandum that agents could not record interrogations without the express permission of a senior supervisor.  According to the memorandum, agents should generally not record interrogations for several reasons, among them:

[T]he presence of recording equipment may interfere with and undermine the successful rapport building interviewing technique which the FBI practices…[Additionally,] perfectly lawful and acceptable interviewing techniques do not always come across in recorded fashion to lay persons as proper means of obtaining information from defendants.

As to the first idea, there is no evidence to support the idea that recording would interfere with interrogations.  According to a 2004  study by Thomas Sullivan, former United States Attorney for the Northern District of Illinois, and his colleagues, none of the hundreds of law enforcement agencies surveyed reported that recording interfered with officers’ ability to interrogate suspects.   As for the idea that certain “perfectly lawful…techniques do not always come across” to jurors as proper, that may be because, lawful or not, any juror can see how these techniques — for example,  lying to suspects about the result of supposedly iron-clad forensic evidence or polygraph results — smack of deep unfairness and exert a degree of pressure that may — and sometimes does — resulted in false confessions.

As readers of my book Failed Evidence and this blog know, recording suspect interrogations is one of the most important safeguards against wrongful convictions and abuse during interrogations.  And law enforcement agencies that have the longest experience with recording back it enthusiastically.  For example, Minnesota has required recording of interrogations since 1994.   In a 2002 article that appeared in the Washington Post, U.S. Senator Amy Klobuchar, who was then the elected prosecutor of Hennepin County, Minnesota, argued that “videotaped interrogations have strengthened the ability of police and prosecutors to secure convictions against the guilty.  At the same time, they have helped protect the rights of suspects…”

The DOJ changed the policy with no fanfare — indeed, without even any announcement.  Nevertheless, it represents an undeniable step in the right direction.  The facts of any recorded interrogation will mostly be beyond dispute.  Needless litigation and motions will be avoided, and cases will move through the system (and usually toward guilty pleas) more rapidly.  The worst abuses will be curbed, and a better system will result.

 

Those of you who follow this blog have read (e.g., here and here) about conviction integrity units (CIUs): small groups of attorneys in a district attorney’s office who have the mission of investigating claims of wrongful  convictions in past cases tried by that same office.  These units, just like homicide units, major crimes units, or others in the DA’s office, are dedicated to one type of work: investigating claims of wrongful conviction.  grity work.

The first conviction integrity unit in the country was established by Dallas DA Craig Watkins, in order to have a regular way to investigate the claims of wrongful convictions that his office already faced, and others that might arise in the future.

I support CIUs.  They assure that the DA’s office has a built-in way to address any substantive claim of wrongful conviction.  They can work in partnership with local innocence projects, which can serve as screeners for claims of innocence, in order to point CIUs to cases with real, tenable claims.  (This was the arrangement between the Dallas DA’s CIU and the Texas Innocence Project when I researched and wrote my book Failed Evidence.)  CIUs are far from a perfect solution; they are, after all, part of the DA’s office that may have made the alleged mistakes being investigated, and so they lack independence.  But without a better alternative — for example, a state-created agency like North Carolina’s Innocence Inquiry Commission – CIUs can do the job, and can be created immediately, on the orders of the DA.

CIUs have begun to spread to DA’s offices across the country.  And with that visibility comes some serious thinking about how best to assure conviction integrity.  A conference will take place this Friday, April 4, and Saturday, April 5, called “A Systems Approach to Conviction Integrity,” sponsored by the Quattrone Center at the University of Pennsylvania Law School in Philadelphia.  The event is free, and will be live streamed on the internet for those (like me) who cannot get to Philadelphia to attend.

Take a look at the description of the conference and the agenda.  It’s designed to help people involved in the criminal justice system learn to use quality control systems from experts in laboratory science, aviation and aeronautics, medicine, public health, transportation and other fields who have created mechanisms and institutional cultures designed to reduce and ferret out errors.  Here’s a sample of the conference statement, just to give everyone a sense:

The problem of quality control pervades many of the systems in our society.  Panelists, each expert in quality control and systems error reduction in a complex, high-risk field, will explore efforts to address quality control in a range of other important areas, such as healthcare, aviation, laboratories, etc., and how maintaining quality in the criminal justice system may be similar to and different from quality control in these other areas.

If you are interested in the problem of reducing wrongful convictions going forward — that is, not just correcting the errors of the past, but avoiding them in the future — I urge you to attend or watch via the web stream.  The conference will be a milestone along the road to a better, more accurate criminal justice system, with a ton of information we can all use.

 

On February 4, the National Registry of Exonerations published its yearly report for 2013.  The Registry, a joint project of the University of Michigan Law School and the Center for Wrongful Convictions at Northwestern University Law School, collects information on exonerations that have occurred since 1989.  The headlines on the new report (from the New York Times to NBC News to the Huffington Post) nearly all focused on one fact: 2013 saw 87 exonerations, the highest yearly total yet in any year since 1989.

This is a significant fact.  But two other things in the report got less notice and deserve more.

First, for most people, “exoneration” is synonymous with “DNA exoneration.”  This is how the world looks, whether on television (think of CSI and its many clones) or in any news source.  But this view doesn’t reflect the real world.  As the report points out, only about 21 percent of the exonerations in 2013 involved DNA (p. 6).  Despite the impression one gets from the media, this has always been the case; of all of the exonerations since 1989, 72 percent were not based on DNA.  And that difference seems to be increasing.  In both 2012 and 2013, non-DNA exonerations increased significantly, while DNA exonerations decreased (p. 12).

The other fact that many in the media did not notice: for the last two years, the percentage of all exoneration cases resolved with the cooperation of the police or prosecutors has risen dramatically.  In 2012, almost half of all the cases featured cooperation of the police or prosecutors in re-examining cases, leading to exoneration; the average percentage in all the years before (1989-2011) did not reach 30 percent.  The trend continued this year, with almost police or prosecutors cooperating in almost 40 percent of all exonerations.  (A few media organizations, such as Fox News, NPR, and the Christian Science Monitor, featured this fact in their headlines and/or stories.)

This is a very welcome and important development.  While some exonerations have always come about with law enforcement cooperation, this was not the trend.  Despite assurances from Scott Burns, executive director of the National District Attorneys Association that “we always did that, we just didn’t” have a name for the process (see his quote here), the data on the last two years do show a greater willingness to re-examine old cases than in years past.  According to Samuel Gross of the University of Michigan Law School, who edits the Registry, “the sharp, cold shower that DNA gave to the criminal justice system has made us realize that we have to re-examine” closed cases whether with DNA or not.  That idea appears to be sinking on a much wider basis.  And that is all to the good.

 

Following up on my last post, in which I asked why there were still no national standards for forensic science five years after the National Academy of Sciences’2009 report Strengthening Forensic Science in the United States, and with scandal after scandal in U.S. crime labs all over the country, there may be light on the horizon.  On January 10, the U.S. Department of Justice (DOJ)  and the National Institute for Standards and Technology (NIST) announced the formation of the National Commission on Forensic Science.

According to the announcement issued by DOJ and NIST:

Members of the commission will work to improve the practice of forensic science by developing guidance concerning the intersections between forensic science and the criminal justice system. The commission also will work to develop policy recommendations for the U.S. Attorney General, including uniform codes for professional responsibility and requirements for formal training and certification.

John P. Holdren, Assistant to the President for Science and Technology and Director of the White House Office of Science and Technology Policy, said that the Commission “will help ensure that the forensic sciences are supported by the most rigorous standards available—a foundational requirement in a nation built on the credo of ‘justice for all.’ ”

The formation of the Commission could be the a significant milestone in the march toward the use of real science and defensible national standards in forensic labs.  But it may be limited in what it can achieve just by its creation and structure: it is not a body created by Congress with power to come up with and implement standards or to regulate anything.  Rather it is a federal advisory committee, formed under the Federal Advisory Committee Act of 1972.  (A quick primer on the Act is here.)   It investigates and debate designated topics, and then reports its recommendations to the relevant federal department(s) that formed it (in this case, the DOJ and NIST).  Those agencies could choose to embrace and follow, or could choose to reject, some, all, or none of the Commission’s suggestions.

Still, this is a hopeful sign that we might be heading in the right direction.  At the very least, we will see a national conversation between the very large number of Committee members; they come from a variety of backgrounds in government, science, the legal system, and elsewhere.  See the list of more than thirty Commission members at the bottom of this announcement.

I hope readers will weigh in on the following question: realistically, what will come from the Committee?  Will the government adopt these recommendations?  Will the recommendations include national standards to regulate forensic testing, assure quality control, and the like? In the end, will the work that you foresee coming from the Commission improve the U.S.’s largely unregulated system?

Here we are, more than a month after chemist Annie Dookhan, formerly of the Massachusetts State Drug Laboratory, entered a guilty plea to producing fraudulent forensic testing results, and went to prison.  The scandal, potentially involving tens of thousands of cases, has resulted in the release of hundreds of convicted persons. All of this has reportedly cost the state of Massachusetts more than 8 million dollars, and the state has budgeted almost 9 million more for the continuing damage.    Readers have seen coverage of the Massachusetts scandal, and several others, here and here and here.

But Dhookan and the Massachusetts Drug Laboratory are far from alone.  According to a report by National Public Radio, there have been  twelve major crime lab scandals in the U.S. in just the last two years.  With all of this damage  — to individual cases and defendants, to state and local budgets, and to the public trust — occurring all over the country, how have policy makers at the national level responded?

Well, they haven’t.  At least not yet.

Almost five years after the release of the National Academy of Sciences’ report “Strengthening Forensic Science in the U.S.: A Path Forward,” which recommended (among other things) the establishment of national industry standards for forensic labs and a National Institute of Forensic Science,  as well as the independence of every crime lab from police agencies and prosecution offices, none of this has happened.  Nor is accreditation of laboratories required.

According to National Public Radio, Senators John Cornyn of Texas and Patrick Leahy of Vermont “are working to introduce legislation this year” which could address some of these problems.  But nearly five years after the NAS report, and with the parade of crime lab scandals  continuing without let up, why has it taken five years to get to this very preliminary point?

Readers, would mandatory national standards help?  Are they appropriate?  What about requiring accreditation?

If you are from outside the U.S., does your country set mandatory national standards for crime labs?  Is accreditation required?

The time has long since passed for us to do something about this set of problems in the U.S.  We just can’t afford the damage to the credibility of our criminal justice system and the costs of  reviewing cases and releasing convicted prisoners — some of whom may very well be guilty, but whose cases are tainted.