Category Archives: confessions

The Cost of Tsarnaev: the inexorable march toward totalitarianism

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I'm just a man with a bag. Blog? Blag?

I’m just a man with a bag. Blog? Blag?

Consider:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, [...]; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; [...].

Fifth Amendment to the Constitution of the United States; and add to it:

The circumstances surrounding in-custody interrogation can operate very quickly to overbear the will of one merely made aware of his privilege by his interrogators. Therefore, the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege under the system we delineate today. Our aim is to assure that the individual’s right to choose between silence and speech remains unfettered throughout the interrogation process.

…

If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked. If the individual states that he wants an attorney, the interrogation must cease until an attorney is present.

Miranda v. Arizona, while leads to:

We now hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.

Edwards v. Arizona (why is it always Arizona?) and explain how we come to:

Tsarnaev had been responding to the interagency High Value Detainee Interrogation Group, including admitting his role in the bombing, authorities said. A senior congressional aide said Tsarnaev had asked several times for a lawyer, but that request was ignored since he was being questioned under the public safety exemption to the Miranda rule.

L.A. Times, 4/25/13.

Tsarnaev, a citizen of These United States, “asked” for a lawyer. His lawyer. His right to a lawyer under the Fifth Amendment to the Constitution of the United States of America as explained by Miranda v. Arizona and Edwards v. Arizona. Your right to a lawyer. My right to a lawyer. A right. Not a request, not a variance, not an indulgence. A Right. Fundamental Right in the Pursuit of Life, Liberty and Justice and the American Dream. An inimical right. A right that cannot be taken away without amending the Constitution by approval from 75% of these united States.

And yet. And yet. That Right was ignored. Because we don’t like the guy asserting the right. Good thing we’re all in the law’s good graces. Good thing we’ve never done anything the law didn’t like.

The putative explanation – the “public safety exemption (note how it’s no longer an exception, but an exemption) to the Miranda rule”, which as has been covered here there and everywhere, is not exactly applicable.

But even if it were applicable, as explained here, there and everywhere, it is an exception to telling someone of their rights. It cannot make that right disappear. The Quarles exception says “we don’t have to tell you of your rights”, but those rights still exist. As far as I know, there’s no 48 hour exception to the existence of the Constitution. But I’ve been wrong before.

They exist because they are there. They are in the Constitution and the the last time I checked the Constitution couldn’t be amended by Executive Fiat. And just because Eric Holder says they can be, doesn’t make it true.

The outrage emanating from every corner of this great nation should be deafening. We should be pounding down the doors of our elected representatives, demanding that they pledge never to so abuse our rights again. Because if we don’t today, tomorrow they’ll take away more. If today, it’s okay to pretend like my right to counsel doesn’t exist, then maybe tomorrow my right to free speech doesn’t exist. Maybe tomorrow the government will have license to spy on me wherever I go, without my permission; reading my text messages and my e-mails because terrorism. Maybe tomorrow a high profile, well-respected and intelligent Federal Circuit Court of Appeals judge will suggest that we give up a little more privacy for perhaps a little more security. Maybe. Oh wait. That’s not tomorrow. That’s today:

I am not suggesting that privacy laws be repealed. I don’t think that they do much harm, and they do some good, as just indicated. But I don’t think they serve the public interest as well as civil libertarians contend, and so I don’t think that such laws confer social benefits comparable to those of methods of surveillance that are effective against criminal and especially terrorist assaults.

More than effective: indispensable. How much more havoc might the two Boston Marathon bombers have wreaked had they remained unidentified for weeks? The critics of surveillance cameras invoke the specter of the telescreen, a two-way television that thus operates as a surveillance camera, which figures in George Orwell’s great novel “Nineteen Eighty-Four.”

But the critics miss two important distinctions. The first is that the telescreen is inside people’s homes — in every room, and monitored by state security personnel (“Big Brother is watching you”). The second distinction is that the nation in Orwell’s novel — “Airstrip One” (actually England) — is a Soviet-style totalitarian dictatorship. (Coincidentally, England today apparently has more surveillance cameras than any other nation, some 4 million.)

Our government is not totalitarian, and surveillance cameras, when indoors (in retail stores for example), are generally invited and controlled by the owner of the premises. The surveillance cameras installed by the government are, by and large, in public areas, mainly streets, where privacy is anyway limited by the fact that one is visible and audible to other people.

I will politely decline Judge Richard Posner’s invitation to build a Panopticon. For a man purportedly so intelligent, Judge Posner’s arguments are presented as so naive and optimistic and thus terribly dangerous. Remember, Oceania has always been at war with Eastasia. Posner, who is not to be confused with – and I was hoping more intelligent than – Eric Posner, is a famed judge who has taken to embedding pictures into his judicial opinions. But, via Glenn Greenwald, I’d like to introduce him to Thomas Paine:

“He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself.”

And of course, John Adams in his infamous defense of the British soldiers. We must be extra vigilant in times like, in the face of gentle nudges in the opposite direction by learned people like Judge Richard Posner (or even the barbaric ham fisted grunts of the ilk of Rep. Louie Gohmert).

I’ll let Greenwald close:

This is not a platitude they were invoking but an undeniable historical truth. Governments know that their best opportunity to institutionalize rights violations is when they can most easily manipulate the public into acquiescing to them by stoking public emotions of contempt against the individual target. For the reasons Paine and Adams explained, it is exactly in such cases – when public rage finds its most intense expression – when it is necessary to be most vigilant in defense of those rights.

We have already seen the cost of Quarles. What will be the cost of Tsarnaev?

 

Perhaps intelligence committee is a misnomer

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The Constitution of The United States of America is a self-executing document. It does not need permission to grant you your rights, nor does it require a magical incantation to appear and shield you with its protections, as if it were a concoction of a fantasy universe created by a now-very-wealthy female author from England.

But people – many people – with purported intelligence and advanced degrees and those who are presumed to have a basic understanding of these simple facts continue, yet again, to exhibit why we are electing a Congress of fools.

Lawmakers in our nation’s capital – albeit mostly ones with an R next to their name – have made an abrupt about face when it comes to the inviolability of the Constitutional guarantees and have now subjected the rights to a matter of convenience.

House Intelligence Committee Chairman Mike Rogers (R., Mich.) said in an interview Thursday. “We have a long-standing tradition that the judiciary does not interfere with investigations. This sets a very dangerous precedent.”

The “this” that he is referring to, is the story that a Magistrate Judge, on Monday, advised Dzhokhar Tsarnaev of his Privilege Against Self-Incrimination at his arraignment [PDF]. We will get to Mike Rogers, who went on to make even more dangerous comments, in a minute. But first some background.

Apparently, the entire Federal Law Enforcement PolitBuro was “surprised” when a “judge and a US attorney” entered the interrogation room. By then, 16 hours had passed, and any semblance of legitimacy for the use of the “public safety exception” in Quarles. The danger of their “surprise” is that law enforcement expected to be able to “interrogate” Tsarnaev indefinitely/longer/for however long they wanted. Because the Constitution explicitly states that these Rightf are Not Enforceable Until At Leaft 48 Hourf Have Paffed And Thou Art Not A Muflim Terrorift. Wait, no it doesn’t? As my buddy Scott Greenfield writes (linked above):

If this is about the public safety exception, than the government has taken a quantum leap into the temporal abyss. But it’s not clear that this has anything to do with the public safety exception, as it’s hard to imagine anyone arguing with a straight face that they needed five hours, ten, 16, more, to find out whether this 19 year old kid, this kid who had been shot, this kid who (for all he knew) was about to disappear in some black hole the government reserves for terrorists, knew anything about another imminent attack.

Indeed one need only look to this compilation of the changing information of the dangerousness of the two Tsarnaevs to realize that law enforcement’s state goal of “public safety’ was nothing more than an excuse for extraction of information from a U.S. citizen in an extra-judicial manner.

But Rep. Rogers, a former FBI agent, apparently has no such concerns because he’s white not a Muslim.

“What I find shocking is that the judiciary proactively inserted itself into this circumstance and the Justice Department so readily acquiesced to the circumstance,” he said. “The court doing this proactively, they may have jeopardized our ability to get public-safety information.”

A sitting United States Congressman has just stated that the judiciary should not interfere with the administration of law and our rights and that determination of those rights depends entirely on the goodwill of law enforcement agents.

If this were the McCarthy era, or 1984, and I had to give up people I suspected as Communist sympathizers, the first name out of my mouth would be Rep. Mike Rogers of Michigan.

It gets worse.

The revelation about the judge’s role came late Wednesday at a briefing before the House Intelligence Committee. One lawmaker in the meeting asked FBI Deputy Director Sean Joyce why the FBI didn’t raise objections, according to another U.S. official. Mr. Joyce said in essence it wasn’t the FBI’s role to object to such a determination, the official said.

It came as a surprise to the nation’s lawmakers that it was not law enforcement’s role to intercede in the judiciary doing its job. In other words, something as basic and simple as the separation of powers, the administration of justice and due process elude these people who sit on the “Intelligence Committee”.

Let me repeat: the Constitution is self-executing. The rights exist, whether you like them or not, whether you say the magic words or not. The rights enumerated therein do not require the grace and goodwill of lawmakers like Mike Rogers of Michigan to “activate”. Do you want your Constitutional rights to be subject to the permission of Mike Rogers of Michigan?

Let Jon Stewart take it away:

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Give an inch and now they’re suggesting forced interrogations

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herr-flick

See, this is the problem with budging on absolute protections of the Constitution. Once you start saying “everyone has the right, except…”, the “except” becomes the target of rapid bombardment to see how far that hole will go. Once you give an inch, law professors like Akhil Amar and Eric Posner show up to argue how that inch really is a mile, because it’s law and you’re terrible at math.

“Immediate danger” from the public safety exception becomes “civilized compulsory interrogations”. I can’t even type those words without images of the German secret police swirling through my head.

Before we get into the nitty-gritty of these proposals, let’s start where it’s always the simplest, at the beginning. The Fifth Amendment to the United States Constitution provides:

No person shall be compelled in any criminal case to be a witness against himself

Plainly interpreted, this means that no can be required/forced/compelled to answer questions by law enforcement that would show that the person being question was involved in/guilty of a crime. In Miranda, it’s been popularized as “the right to remain silent”, but legally, it’s “the privilege against self-incrimination”. The punishment for violating one’s Constitutional Right is that the Government cannot then use that information or evidence obtained because of that information to then turn around and convict you.

But what if they have no interest in prosecuting you? What if you’re nothing but a small fish and they want someone else? What if they just want the information you have and are willing to forgo prosecuting you in exchange?

Some are suggesting just that, and more. So first Amar, who proposes the following:

The best solution would simply be for the Supreme Court to change course and allow the admission of all evidence gathered as a result of a civilized compulsory interrogation.

Under current law, a suspect can be forced to hand over a blood sample or a fingerprint, because these items are reliable physical evidence, and they don’t violate Fifth Amendment, because blood and prints are not “witnesses,” strictly speaking, and because they are reliable in a way that pure words are not. The same logic holds for admitting all fruit and leads generated by compelled interrogation.

But even if the court won’t go that far, it should hold that in compelled interrogations involving serious and ongoing threats to public safety, evidence and leads obtained by interrogation of the suspect should always be admissible.

Let’s bring coffee, donuts, and yes, lawyers, into the interrogation room. But the law should also require the suspect to answer all questions under pain of contempt—meaning he can be jailed if he refuses—and under penalty of perjury.

His lawyer should understand that her job is not to aid the suspect in lying or stonewalling. Suspects will of course be tempted to lie in some situations. But even lies can often provide cues and clues to trained investigators, and interrogators should also be able to give lie-detector tests with the oversight of a judge.

This is the right balance for public safety and a defendant’s rights—and the Fifth Amendment, properly understood, allows it.

Did you get that? Amar is proposing that any time there is “ongoing threat to public safety”, which he neglects to define, the police get to question you, no limits, no safeguards, no restrictions. They ask you questions and you must answer. Because only guilty people are ever questioned and only guilty people are ever apprehended and Amar is lawprof who’s never set foot in a courtroom representing an actual defendant whose Life and Liberty are on the line.

I’m sorry; I didn’t warn you before the last blockquote. I won’t be so foolish as to ignore the warning now. Warning: this next blockquote will make you want to throw things at your computer screen or perhaps mutilate a soft toy. Please resist the urge to do either, in the name of decency.

Amar’s companion/counterpart/coincidental comrade, Eric Posner offers the following suggestions:

There is a better approach. Imagine a law that grants police broad but temporary detention and interrogation powers in the aftermath of a mass killing in a public location—in other words, any potentially terrorist shooting or bombing.

The police must first seek permission from a judge who will determine whether the act of violence satisfies the criteria, spelled out in the law, about the magnitude and circumstances of the attack.

The police may then detain for one week, say, those whom they reasonably believe responsible for the attack, and interrogate them without informing them of their Miranda rights. Perhaps, the term can be renewed for good cause.

The government would provide these detainees with lawyers who would not be allowed to meet with them, but could appeal the initial judicial order, and examine and challenge before a judge the government’s evidence that the detainee is responsible for the attack.

The judge would have the power to revoke the detention power if it is no longer necessary, and to order the release of the detainees if they cannot be tied to the attack.

Statements obtained from the detainee could be used against him in trial, unless they were obtained through coercion, intimidation, or deception. Conviction would require corroborating evidence.

“Ve vill ask ze qvestions and you vill answer ze qvestions. Do we understand each other, hmm?” he might as well have said. I can imagine, Mr? Prof? Posner a law where a terrorist attack is so broadly defined that it might well cover any allegation of any criminal activity. I can imagine a law where you have simultaneously rendered useless both the Fifth and Sixth Amendments to the United States Constitution (remember, there is that Sixth Amendment right to counsel). I can imagine an “age of terror” as you put it, in which who is a terrorist is dependent entirely on the whims of those who wield the power to make that decision. As Sensei Mark Bennett puts it:

[W]hen the gov­ern­ment talks about “ter­ror­ists,” they’re talk­ing about the peo­ple who they can claim are ter­ror­ists. And when they are talk­ing about the peo­ple who they can claim are ter­ror­ists, they are talk­ing about you and me.

And you and me are people they may decide they don’t like anymore.

What they’re proposing, when it comes down to it, is to grant the entire law enforcement community and the military industrial complex in America the authority to detain any person in the United States, regardless of their citizenship, for a period of time up to a week or longer, for whom there is a hunch – a suspicion? it’s not really clear – that there is involvement in “terrorist” activity. During that detention, that person can be interrogated – civilly, of course – without lawyers, forced to answer and then have those answers used against them in court.

I wrote last week about two eerily similar things: the desire of the State to be able to stop anyone on the street and question them and their desire to possess the power of the investigative subpoena.

You give them an inch on the Constitution; they want to take the whole thing away. You better familiarize yourself with Herr Flick up there.

—

Lest you think the entire world has gone mad, read this post by Greenfield and this roundup at DailyKos for more intelligent reactions.

H/T: InnocentPete

—

Image of Richard Gibson as Herr Otto Flick, of the Gestapo, from here.

Judge finds Reid method oppressive

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In other news, scientist finds that the sun is really, really, hot and sports commentator opines that in order to win you have to score more than the opponent. Honestly, I wish the headline of this post, which is a version of the headline of this news story, was an Onion article. It’s not. Also, this is from Canada, so your mileage may vary.

The Reid method, for those who don’t know, is a classic police interrogation interview technique which is used to wrangle and coerce confessions from suspects. A simple Google search reveals much about the Reid technique, which you should peruse at your own leisure, preferably after you’re done reading this post. But since I know you’re lazy, here’s a link to the technique’s “Nine Steps“. You can see how coercive and insidious they are.

The Reid technique, despite its flaws and criticism about its tendency to produce false confessions, has been the standard method of conducting interviews across North America for near 20 years now. It’s routinely used – and defended – by law enforcement organizations. Courts have upheld the use of these coercive tactics time and again.

So leave it to a Canadian judge to unequivocally declare that this technique is improper and dangerous. In Regina v. Chapple [PDF], the Honorable M.C. Dinkle. The judge does a wonderful job of outlining the tactics employed by the police officers in this case:

Dinkel said Calgary police subjected Christa Lynn Chapple to an eight-hour interview and interrogation that “had all the appearances of a desperate investigative team that was bent on extracting a confession at any cost.”

Even though the accused asserted at least 24 times that she wanted to remain silent, Detective Karla Malsam-Dudar disregarded that right, continuing to prolong the interview with lengthy monologues, constant interruptions and persistent questioning.

The accused’s free will was overborne to the point where she told police what they wanted to hear, the judge concluded.

But more notable than the specific facts of this case was the overall condemnation of the technique itself, which the judge called “a guilt presumptive technique” designed to “extract confessions from the accused”. He further excoriates:

Innocence is not an option with the  Reid Technique. Those who defend the Reid Technique may suggest that the problem lies with  the interrogators who misuse the technique and not the technique itself. They may also say that  the technique is intended to be used only in circumstances where the police are sure of an  accused’s guilt. These factors are of little solace to me and of no assistance to those innocent  individuals who have given false confessions over the years at the hands of Reid Technique  interrogators.

The judge notes, with some disappointment, that even years after other judges first began to question the use of this technique, it is still widely in service today. False confessions were recorded in approximately 25% of the exonerations cataloged by the Innocence Project. The dangers of using such a coercive technique should be obvious to those whose stated goal is the pursuit of truth and justice, yet more often than not, it is used to achieve precisely the opposite result and serves as nothing more than confirmation of their bias and tunnel-vision. The goal isn’t the truth, it’s an arrest, a confession and a conviction, truth be damned.

 

H/T: Lisa Steele for the pointer and The Trial Warrior for providing a link to the opinion.

The child abuse exception to [privilege]

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If the law were a series of Hollywood blockbusters, undoubtedly the highest grossing series of movies of all time would be the ones that featured the exceptions carved out in long-standing law to accommodate the prosecution of alleged child abusers. You’d start with the original, “The Child Abuse Exception to Confrontation”, with which the writers judges hit a goldmine. Then I’d recommend moving to “The Child Abuse Exception to Prior Bad Acts”, and by now with a well-worn formula that keeps the entire plot intact but simply changes the name, a la The Hangover 2, The Child Abuse Exception to Privilege. There’s a rumor that there is a madlibs game in the works “The Child Abuse Exception to _____”. Ultimately, the plan is to release a director’s cut box set compendium under the title “The Child Abuse Exception to The Law”.

This most recent iteration, which can be viewed on a screen near you, is also known by its working title of State v. Mark R., in which the court goes to great lengths to explain why it is perfectly legal for a psychiatric counselor to not only disclose suspected child abuse to authorities – as a mandated reporter – but also to testify as to the private communications between the counselor and patient.

The relevant facts are thusly: Man allegedly fondles step-daughter. Step-daughter and mother confront man with assistance of priest in priest’s office. Man reluctantly admits said fondling, apologizes. Priest then informs mother that either she or he will have to report said abuse to law enforcement within 24 hours, as he is also a mandated reporter (gotcha!).

Two weeks later, suffering emotional stress from the step-daughter’s accusations and impending criminal prosecution, the man goes to seek counseling at a clinic. During a confidential intake interview, man again (yes, I know) admits said fondling. Counselor has to report said suspected child abuse.

Both priest and counselor testify at man’s trial about his confessions. Man is convicted and spends many years in jail; appeal follows.

In Connecticut, the privilege statute is 52-146s, which states:

(b) Except as provided in subsection (c) of this section, a professional counselor shall not disclose any such communications unless the person or the authorized representative of such person consents to waive the privilege and allow such disclosure. The person or the authorized representative of such person may withdraw any consent given under the provisions of this section at any time in writing addressed to the individual with whom or the office in which the original consent was filed. The withdrawal of consent shall not affect communications disclosed prior to notice of the withdrawal.

(c) Consent of the person shall not be required for the disclosure of such person’s communications:

(6) If child abuse, abuse of an elderly individual or abuse of an individual who is disabled or incompetent is known or in good faith suspected;

So it is pretty clear that the counselor is permitted to violate the privilege in order to report the suspected child abuse. The question then becomes, does the privilege continue to not exist once the disclosure has been made? The court says yes:

Once a client makes such an admission to a counselor, there is no indication, in either the text of the statute or its legislative history, that the counselor must obtain his consent  for any subsequent disclosures.

The defendant in the present case contends that Orr controls the result here. He argues that, as with the social worker statute, the professional counselor statute only  contemplates an initial disclosure of a client’s admissions of child abuse, and only to the extent required by law and necessary to secure the safety of the child, and therefore  the statute does not permit a counselor subsequently to testify against her client at trial. We disagree.

The court then goes into a somewhat limited analysis of why they disagree, mostly revolving around the fact that some other statutes mention that reporters shall be immune from criminal prosecution and that their names shall be disclosed to all necessary parties in said prosecution. Thus, it concludes:

Taken together, these provisions demonstrate a clear legislative intent that any mandatory report of child sexual abuse be channeled simultaneously into: (1) a child protection  investigation, spearheaded by the department, to prevent future abuse; and (2) a criminal investigation, spearheaded by local law enforcement, to address past abuse. Unlike  the imminent risk exception in § 52-146q (c) (2), the child abuse exception contained in § 52-146s (c) (6) is in part remedial. Accordingly, we discern no basis for reading into §  52-146s an implied distinction between disclosure of confidential communications for purposes of child protection and criminal prosecution.

The court also dismisses the argument that this decision will have a chilling effect on people seeking therapeutic treatment because any disclosure results in a criminal investigation, so the prospect of having his statement admitted through his counselor isn’t much of a deterrent. I suppose it’s been a long time since any of the justices practiced in a criminal court – if at all – but I’d like to take this opportunity to remind them that the number one factor leading to convictions is a confession.

In addition, I think there’s a significant distinction between this case and any other hypothetical case involving the disclosure to a psychiatric counselor: the fact that the suspected child abuse had already been disclosed a few weeks prior, by the priest.

The reason he went to the clinic and spoke to the counselor in the first place was the stress he experienced following the accusations made against him by the step-daughter. I understand that we need to protect children and that is the main goal, but a subsidiary one has to be the rehabilitation of people who commit these crimes and the first step in that process starts with therapy.

Imagine the therapy session that starts: “I must warn you that I can’t help you unless you talk freely and honestly about what you did and why, but if you do that, I will have to report you and testify against you in court”.

Yeah, no chilling effect, for sure.

The fruit of the poisonous confession

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fruit of the poisono---oh nevermind

We at this blog, and as a consequence you as an observant reader, have known for quite some time now that false confessions are an underrated scourge in the world of wrongful convictions. Some 15-20% of all exonerations have seen the original convictions brought about by these false confessions. The causes of false confessions have been explored before: mental acuity, extremely long interrogations, psychological manipulation and outright lies.

A new paper soon to be published by Saul Kassin – one of the leading experts on false confessions – and others does a tremendous job of highlighting the history of the law on confessions, their admissibility and challenges to these confessions in US and UK courts. The paper is notable for three reasons: 1) It lays out this legal history, the current state of the research and the history of the development of this research in detail, 2) It offers some reform proposals and most interestingly 3) it posits that a false confession can have an adverse effect on how the jury perceives the remaining evidence in a case. For all of these reasons, it is an absolute must read for all criminal defense lawyers and even those prosecutors who are driven by the interests of justice.

What I want to do in this (extremely lengthy) post is to highlight some of the important and relevant points of the paper, but let me assure you: nothing I write here will be an adequate substitute for you actually reading the paper. It is that good and that important.

The problem with confessions using our current models starts at the beginning: with police interrogation. As opposed to the UK, which uses a “fact-finding” model of interviewing suspects, US police departments for the most part use the “confession” model. The goal of most interrogations in the US is to confirm the suspicion of the interrogator by obtaining a confession. These “trained” interviewers rely essentially on hunches, which are based on flawed beliefs of body language:

Often, however, it is based on a clinical hunch formed during a preinterrogation interview in which special ‘‘behavior-provoking’’ questions are asked (e.g., ‘‘What do you think should happen to the person who committed this crime?’’) and changes are observed in aspects of the suspect’s behavior that allegedly betray lying (e.g., gaze aversion, frozen posture, and fidgety movements). Yet in laboratories all over the world, research  has consistently shown that most commonsense behavioral cues are not diagnostic of truth and deception (DePaulo et al., 2003). Hence, it is not surprising as an empirical matter that laypeople on average are only 54% accurate at distinguishing truth and deception; that training does not  produce reliable improvement; and that police investigators, judges, customs inspectors, and other professionals perform only slightly better, if at all—albeit with high levels of confidence (for reviews, see Bond & DePaulo, 2006; Meissner & Kassin, 2002; Vrij, 2008).

The most famous of police interrogation techniques is the Reid Nine-step:

A nine-step process then ensues in which an interrogator employs both negative and positive incentives. On one hand, the interrogator confronts  the suspect with accusations of guilt, assertions that may be bolstered by evidence, real or manufactured, and refuses to accept alibis and denials.  On the other hand, the interrogator offers sympathy and moral justification, introducing ‘‘themes’’ that minimize the crime and lead suspects to see confession as an expedient means of escape.

Compounding the problem of these questionable police interrogation techniques is the apparent contradiction in US courts’ treatment of confessions in the criminal justice system: on one hand, courts recognize the awesome power of a confession and yet on the other seem indifferent to the voluminous research that tends to show that most techniques are coercive and unreliable. Originally governed by the corpus delicti rule, confessions are now viewed through the lens of the “trustworthiness” rule, after Opper v. United States (for a CT discussion see State v. Hafford). This rule is intended to permit the admission of only those confessions that can be independently corroborated. However, in practice, the rule doesn’t provide the benefits it seeks to: Continue reading →

The fallacy of the good-hearted informant

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An all too common scene in trials when a jailhouse snitch testifies is the elaborate song and dance performed by said snitch and the prosecutor to convince everyone (a bit too loudly) that there is no quid pro quo.

“Did you talk to anyone from the prosecutor’s office before coming forward with [insert damning piece of evidence]?”

“No, of course not.”

“Did anyone from the prosecutor’s office promise you anything in exchange for your testimony?”

“Not a damn thing.”

“Have you been told you’d get a reduction in your sentence for co-operating truthfully?”

“I wish I had, but no one has been so kind.”

“Is everything you’ve said been the truth?”

“Do I look like a liar?”

“So why did you come to us with this information?”

“Out of the goodness of my heart.”

That is what I shall henceforth call “the fallacy of the good-hearted informant”. You can picture it now, can’t you? The prosecutor winking, the informant nodding, the defendant eye-rolling, the judge snickering. The jury? Well, that’s the important question.

Does a jury buy this? Does anyone seriously believe that an inmate would testify without any expectation of a reward? Is there any inmate foolish enough to testify without an expectation?

Consider this: information is power in the criminal justice system. Not the truth. Information. When an inmate obtains information, there is but one thought on his mind: how do I use this to my advantage? How do I translate this into a lower sentence?

Sure, the prosecutor and the inmate may never actually utter the words “sentence modification”, but it is an unwritten understanding. That’s part of the game. The State knows it, the inmate knows it. If he cooperates, he will get some consideration. No one wants to be in jail, whether it is for 6 months or 60 years, and any little advantage that can be obtained, will be used. And the State has an incentive to offer modifications, too. If they really do stiff an informant and don’t reduce his sentence, the next guy will hear about it and will be more hesitant to come forward.

Confession is king and a confession to someone who is not law enforcement is even better. So you can bet every penny left in your 401K that three weeks after a conviction in this hypothetical trial, a motion for modification of sentence will be filed and the sentence of the informant will be reduced.

A chilling confession to a heinous crime is worth its weight in years. So, the next time you’re a juror in a criminal case and an informant testifies that he has no expectation of a reduction in his sentence, join the defendant in rolling your eyes and then tell the rest of the panel that he’s full of it during deliberations.

As for the defense attorneys (and in an effort to make this post more than just stating the obvious), what tricks do you find work best in countering this charade? Maybe someone should start keeping track of every time an informant has received a reduction in his/her sentence after testifying in a particular courthouse or with the blessings of a particular prosecutor’s office.

[For more posts on other fallacies and legal fictions, click here.]