Posts Tagged ‘failed evidence’

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.

 

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.

 

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?

The International Association of Chiefs of Police (IACP) is one of the leading organizations for law enforcement professionals in the U.S. and around the world.  I regularly turn to their model policy and training documents when working on those issues for police agencies.  So it’s a big deal to see their new report, prepared in conjunction with their partner, the U.S. Department of Justice Office of Justice Programs, announcing that their new effort in which they will play a leading role in fixing the problems in police investigation that cause wrongful convictions.

The report, titled, “National Summit on Wrongful Convictions: Building a Systemic Approach to Prevent Wrongful Convictions,” takes a full view of the issues that must be addressed to avoid convicting the wrong people, and announces a series of recommendations designed to bring the goal within reach.  It is based on work at a summit of people from IACP, DOJ, and a host of experts.  In a preliminary statement in the report, the President of the IACP and the Assistant Attorney General for the Office of Justice Programs, outlined how the report came to be and what it does.

This event gathered 75 subject matter experts from all key disciplines to address and examine the causes of and solutions to wrongful convictions across the entire spectrum of the justice system. Summit participants worked diligently during this one-day intensive event to craft 30 focused policy recommendations that guide the way to our collective mission to continually improve the criminal justice system. The summit focused on four critical areas: (1) making rightful arrests, (2) correcting wrongful arrests, (3) leveraging technology and forensic science, and (4) re-examining closed cases. The 30 resulting recommendations directly address these areas and lay a critical foundation for required changes in investigative protocols, policies, training, supervision, and assessment.

The report makes thirty recommendations on a number of topics: eyewitness identifications, false confessions, preventing investigative bias, improving DNA testing procedures, CODIS, correcting wrongful arrests, leveraging technology and forensic science, and re-examining closed cases with an openness to new information.

The report is absolutely essential reading for anyone interested in wrongful convictions and what can be done to correct them.  Readers of my book Failed Evidence will also recognize that the emergence of this consensus at the top of the law enforcement profession is exactly what I have called for: “Police and Prosecutors Must Lead the Effort” (pp. 158-159).

For those in the Chicago area, I’ll be speaking about my book “Failed Evidence: Why Law Enforcement Resists Science” on Wednesday, October 16, at 5 p.m. at Gage Gallery, 18 S. Michigan Avenue.  The event is free and open to the public.  The event is sponsored by Roosevelt University’s Joseph Loundy Human Rights Project, and is part of their annual speaker series.  The link to the event is here.

The next public event for “Failed Evidence” will be in Pittsburgh on November 6, at noon at the Harvard Yale Princeton Club, 619 William Penn Place, The talk will be sponsored by the Allegheny County Bar Association and the Pitt Law Alumni Association.  More details to follow.

With the trial of George Zimmerman for the killing of Travon Martin now underway, we can see that most of what is happening in the trial is not that different from most other murder trials one could see on an average day in any Florida courthouse.

But this week, we have seen that there is one big difference.  In this case, the jury has the opportunity to know what Zimmerman said, from an actual recording of the actual police interrogation.  They can see the questions police asked, the answers Zimmerman gave, and his tone and demeanor when he gave the answers .  The jurors will know Zimmerman’s exact words, and whether he hesitated or seemed confident he gave an answer.  They will know all of this for themselves, without it being filtered through a police officer’s memory or note taking.  (In fact, we can all experience this first-hand evidence; use the link above to pull the interrogation up on YouTube.  You can also find a recording of Zimmerman’s re-enactment of the shooting for police. )

That’s the difference: in Florida, the usual case wouldn’t necessarily include a recording  of the interrogation, because Florida  does not require recording of interrogations.  Even in murder cases, state law does not mandate electronic recording of the interrogation process.   Twenty states require recording of interrogations in at least some cases under their laws, but Florida is not one of them.

I’m not taking a position here on what’s in the recordings, or whether the jury should believe Zimmerman or not.  What I am saying is that the jury can make up its own mind about what was said, under what conditions, and whether it represents the truth.  That’s what recording of interrogations does for the trial process: it improves the quality of evidence that the jury sees, and it means that bogus claims — whether they come from the defendant or from the police — have much less traction.

In  Zimmerman’s case, there are other recordings too, and the jury can see those as well.  But in most serious cases in Florida, the jury will have to rely on the imperfect recollections and notes of a detective who was involved in the interrogation.  And that’s just not good enough, with the stakes so high.

 

 

When a former high-ranking Justice Department official speaks of a “revolution” in criminal justice, with the whole field turning toward science, could it mean less failed evidence in the future?  What does it mean for those concerned with faulty forensic science?

Laurie Robinson served as Assistant Attorney General in both the Clinton and Obama Justice Departments, where she oversaw the Office of Justice Programs (OJP), the research, statistics and criminal justice assistance arm Justice.  That made her remarks to the Delaware Center for Justice the other day worth noticing.  According to the Wilmington News Journal, “[w]e’re seeing something akin to a revolution in criminal justice in this country,” said Robinson, now on the faculty of George Mason University. “We’re at an important crossroads, one where ideology has taken a back seat, and science and pragmatism have come to the fore.”

Robinson’s web page at George Mason says her tenure at OJP  “was marked by a focus on science and evidence-based programming.”  She was in Delaware to discuss the state’s re-entry programs  and other initiatives to reduce recidivism, and few would disagree that those important programs need scientific and statistical support.   But I wonder whether Robinson would be as optimistic about science’s role in forensic methods, which have played a role in about half of all wrongful convictions across the U.S.  Surely, forensic science needs “science and evidence-based” support and examination — badly.

 It has now been more than four years since the release of the landmark 2009 National Academy of Sciences report Strengthening Forensic Sciences in the United States: A Path Forward, which found that except for DNA and chemical analysis, most of what we think of as forensic science isn’t science at all.  In that time, little seems to have changed; scandals in crime labs continue to pile up in jurisdictions across the country (see my posts about lab scandals just this past year in Massachusetts  and Minnesota,  for example).  In a particularly compelling piece of writing in the Huffington Post, Radley Balko discusses the long-running crime lab scandal in Mississippi, and puts it in context: Mississippi’s scandal “is just the latest in a long, sad line of such stories” that Balko has already chronicled.

What’s to be done?  As a start, I argued in chapter 7 of  Failed Evidence, all federal money that goes to law enforcement should carry with it a requirement for compliance with best practices in police investigation and forensic science.  Not all law enforcement agencies run their own forensic labs (and as the NAS report said in Chapter 6, “Improving Methods, Practice, and Performance in Forensic Science,” labs should be independent of law enforcement.).  But for those that do, compliance with standards that would avoid systematic error, human biases, fraud, and improper scientific testing and testimony should be mandatory.

That would start a revolution right there.  Because what law enforcement agency could afford to just turn down federal funding, in budgetary times like these?

 

It has been almost fifteen years since the National Institute of Justice (NIJ) recommended comprehensive changes to the ways that police conduct identification procedures for witnesses.  Yet USA Today reports that a new NIJ report reveals that 84 percent of U.S. police departments still have no policy to govern how live lineups are conducted.

Readers of Failed Evidence know that almost three quarters of wrongful convictions  overturned through DNA feature incorrect eyewitness identifications; it’s the single largest source of error in these cases.  Readers also know that a growing number of jurisdictions (for example here and here,) have adopted changes to eyewitness identification procedures to eliminate these errors, through blind administration of lineups, use of sequential lineups, and other procedures that decades of research has proven to reduce these errors greatly.

But the NIJ study concludes that most of agencies have no policies for how officers conduct these crucial procedures.  Eighty-four percent of the responding police departments said that they had no policy for live lineups, and sixty-four percent said they had no policy for conducting photo lineups.

The study was conducted for NIJ by the Police Executives Research Forum, “a police research organization and a provider of management services, technical assistance, and executive-level education to support law enforcement agencies.”   PERF surveyed hundreds of U.S. police agencies, large and small, to determine how many had at least taken the step of creating a policy to require officers to use at least some of the recognized best practices for eyewitness identification.  PERF researchers found larger police agencies more likely than smaller ones to have a policy in place, but even among the large agencies, fully twenty-five percent did not have a policy.

For those who follow these issues, as I do, the fact that so much of the law enforcement establishment has failed to make changes in basic investigative procedures is not entirely shocking; the resistance to science and the changes it points to is the central theme of my book Failed Evidence.  But the results of the study are nonetheless disappointing, if only because eyewitness identification reform is one of the areas in which there is the greatest consensus that basic changes are needed; there is also broad consensus one what those changes needed most are: blind lineups, sequential lineups, valid ways of dealing with witness confidence statements, instructions to witnesses, and the like.