is that a gun in your hand or are you just happy to see me?

This incident occurred back in April, but is back in the news with an ACLU press release. The ACLU is representing Anthony Graber…well, you know what? Just watch:

That’s Graber, on the motorbike, and that’s Joseph David Uhler, gun-waving, taking-too-long-to-identify-himself, plain-clothed, unmarked-car-driving, off-duty, state police officer.

Graber got a ticket for speeding, which he gladly accepted, but was then subject to some Apple Gestapo tactics, with police getting a warrant to search his home and seize his computers.

He’s charged with illegally recording the conversation he had with the officer in public and thus violating the officer’s right to have a private conversation while waving a gun at a suspect and yelling at him on the offramp of an exit off the major interstate in the country, which is nonsense code for cops are above the law. Plus the fact that there’s a damn video camera stuck to the guy’s helmet.

Popehat (and the multitude of comments) covered this back in April, with an in-depth analysis. I won’t repeat it here, but I’ll give you this extract:

Allegedly, Graber is being charged with “interception of an oral communication” under Maryland’s “wiretap” law, Md. Cts. & Jud. Proc. §10-402. The law makes it a felony to “intercept” with an “electronic device,” in this case the microphone attached to Graber’s prominent helmet camera, an oral communication in private conversation.

But that isn’t what Graber’s really being prosecuted for.  He’s being prosecuted for contempt of cop.  For embarrassing a cop.  A cop, and a department, that richly deserve the embarrassment they’ve gotten, and the embarrassment they’re going to receive.

Because the charge against Graber is utterly unfounded.  The definition of “oral communication” under Maryland’s wiretap law requires that the conversation be “private,” which is to say that it must be one in which the party being recorded has a reasonable expectation of privacy.  Fearnow v. C & P Telephone Co., 104 Md. App. 1, 33, 655 A.2d 1 (1995), aff’d, 342 Md. 363, 676 A.2d 65 (1996).  According to the Maryland Attorney General’s office, it is not a crime to record a very public conversation, such as a political party meeting, even in secret.

It seems that Graber is not alone in this. Here‘s another recent arrest for the same charge, also in Maryland. Of course, law enforcement types are always good for some lulz:

Remarkably, the state Attorney General has already opined that when police record in public, that is not a private conversation subject to the same laws. In other words, in any public interaction between a police officer and a member of the public in Maryland, it is private for one of them but not the other.

I know most law enforcement agencies are opposed to videotaping interrogations, but this is a little ridiculous.

Today, at 5:00pm, the Judiciary Committee of the state legislature closed for business, just like any other day. But today is important for two reasons: 1) It was the last day on which the committee could vote on bills; 2) This marked the first year that the eyewitness identification reform bill passed and will now head to the legislature for a full vote.

There are several bills I’ve been tracking for a while now, of interest to me and the regular reader. We now know the fate of all those bills (here’s a list of all bills voted out of committee and here’s a list of those that were on the agenda).

Good news:

The biggest news, in my opinion, is that the eyewitness identification reform bill received enough votes to make it out of committee (it died in committee last year). This is a tremendous step forward in the quest for adoption of best practices in lineups and photo arrays.

In addition, the sex offender residency restriction bill was never called to vote, and so unless it’s added as an amendment to a bill that did pass, it has died. (My problems with this bill were documented in this post.)

Another year and another assault on the dignity of The Great Writ has been turned away. The habeas corpus “reform” bill also died in committee, never being called to a vote.

For the second year in a row, the Adam Walsh fearmongering and bleeding money Act also failed to make it out of committee.

The innocuously titled “Act Concerning Subpoenas for Property” also wasn’t called to a vote and went away quietly. Don’t get fooled by the title. This was a very, very dangerous investigative subpoena bill, essentially granting the state to subpoena whatever the hell they wanted from whomever they wanted, even in the absence of a pending criminal prosecution/investigation. It essentially spat in the face of the Fourth Amendment.

An act seeking to create a mandatory-minimum sentence for assault of a public safety officer made it out of committee, but if I recall correctly, without the mandatory minimum.

Three bills hell bent on pushing Connecticut closer to fulfilling Orwell’s prophecy, one to remove the statute of limitations on perjury in murder cases; one to remove the statute of limitations for hindering murder prosecutions and one making it a crime to fail to report a “serious crime” against a child.

The “sexting” bill made it out of committee. But that could be a good or bad thing depending on your point of view. Me, personally? I don’t care either way.

Bad news:

I’ve always viewed the eyewitness ID bill and the videotaping of interrogations bill as two peas in a pod. Fraternal twins, if you will. Where one goes, so should the other. Unfortunately that wasn’t the case today. I’m not even sure the videotaping of interrogations bill was called for a vote. One step at a time, I guess. There’s always next year (says he, sounding awfully like a Red Sox fan. I need a shower).

The big-ticket news item of the day is the passage of the bill eliminating the statute of limitations for civil suits in child sexual assault cases. It’s not criminal, per se, but a stupid idea nonetheless.

A statewide ban the box proposal was called for a vote, but derailed and then “held”, which is lege-speak for killed.

For the second year, a bill seeking to reduce the zone around schools within which drug offenses triggered an enhanced penalty from 1500 feet to 200 feet. In addition, the penalty would have been triggered only for sales made within school hours. This was a much needed bill and I’m sad that it died.

I’m sure there are others that I’ve missed. Which bill did you want to see make it out of committee and which bill are you glad/mad didn’t?

So here we go again.

Tomorrow, the judiciary committee is set to conduct public hearings on three very important bills:

S.B. No. 230 (RAISED) AN ACT CONCERNING THE VIDEOTAPING OF CUSTODIAL INTERROGATIONS.

H.B. No. 5273 (RAISED) AN ACT CONCERNING EYEWITNESS IDENTIFICATION.

H.B. No. 5445 (RAISED) AN ACT CONCERNING THE DEATH PENALTY.

The bills seem to fall under the umbrella of “fixing the death penalty” and in some sense they may do so. But the real action in these bills is the adoption of best practices when it comes to interrogations and identifications. The death penalty bill also has some very interesting proposals. But let’s start at the very beginning. The interrogations bill is a hoot to read:

First, it applies only to those accused of a capital felony or Class A or Class B felonies. Second, any statement made by such person is presumed inadmissible unless 1) recorded and 2) the recording is not substantially altered. The bill then lists 9 exceptions pursuant to which a non-recorded statement is made admissible, but squarely places the burden on the state to prove by a preponderance that the exception is met. But there’s this odd subsection, which in my opinion, seeks to invalidate the entire bill:

(h) The presumption of inadmissibility of a statement made by a person at a custodial interrogation at a place of detention may be overcome by a preponderance of the evidence that the statement was voluntarily given and is reliable, based on the totality of the circumstances.

Since there is no further clarifying information, one must assume that this reverts back to the current standard for admissibility of statements: that they are reliable given the totality of circumstances. What, then, is the purpose of the bill requiring videotaping of interrogations? Am I reading this wrong?

The eyewitness identification bill is the standard bill that has been introduced for the last few years, so there’s nothing really to remark on. It is the death penalty bill that is the piece de resistance in this trifecta.

The bill starts tepidly enough and one might even confuse it for a bill proposed by a Republican to further limit the rights of criminal defendants in death penalty cases (oh wait, that’s exactly what it was…). But then it just takes off into neverneverland in a delightful way.

The bill first mandates that all relevant agencies must maintain exact records of the expenses incurred in pursuing and defending the death penalty. Some of you might recall how last year the public defender’s office was able to provide a dollar amount for the money spent, but the State “didn’t keep such records”.

But wait, it gets better. And how:

Sec. 4. (NEW) (Effective October 1, 2010) The Chief Public Defender, the Chief State’s Attorney and the Chief Court Administrator, or their designees, shall develop and implement a plan for the collection and maintenance of information on all homicide cases that could be charged and prosecuted as capital felonies, notwithstanding that any such homicide case is not charged, prosecuted or disposed of as a capital felony. Such information shall include, but not be limited to: (1) Information on the race, ethnicity, gender, religion, sexual orientation, age and socioeconomic status of the defendant or defendants and the victim or victims, (2) information on the geographic area where the offense occurred and where the offense was prosecuted, (3) the nature and circumstances of the offense, (4) the offense or offenses for which the defendant was charged, (5) the offense or offenses for which the defendant was prosecuted, (6) if the case was tried by a jury, the race, ethnicity and gender of the persons who served on the jury and the persons who were excused from serving on the jury, (7) the offense or offenses for which the defendant was convicted or acquitted, (8) the sentence sought by the prosecution, and (9) if the defendant was convicted, whether such conviction was the result of a trial or a plea, and the sentence imposed.

Sec. 5. (NEW) (Effective October 1, 2010) (a) No person shall be subject to a sentence of death or sentenced to death if such sentence was sought on the basis of the race, ethnicity, gender, religion or sexual orientation of the defendant or the victim.

(b) A defendant charged with the commission of a crime punishable by death may raise a claim that considerations of the race, ethnicity, gender, religion or sexual orientation of the defendant or the victim played a significant part in the decision to seek or impose a sentence of death in his or her case. The defendant shall raise such claim at the pretrial conference. The defendant shall state with particularity how the evidence supports such claim.

(c) The court shall schedule a hearing on the claim and shall prescribe a time for the submission of evidence by both parties.

(d) At such hearing, the defendant has the burden of proving by clear and convincing evidence that the race, ethnicity, gender, religion or sexual orientation of the defendant or the victim was the basis of the decision to seek the death penalty. The state may offer evidence in rebuttal of the claims or evidence of the defendant.

(e) Evidence relevant to establish a finding that the race, ethnicity, gender, religion or sexual orientation of the defendant or the victim was the basis of the decision to seek a sentence of death may include statistical evidence or other evidence, or both, that sentences of death were sought significantly more frequently: (1) Upon persons of one race, ethnicity, gender, religion or sexual orientation than upon persons of another race, ethnicity, gender, religion or sexual orientation, or (2) as punishment for offenses punishable by death committed against persons of one race, ethnicity, gender, religion or sexual orientation than as punishment for offenses punishable by death committed against persons of another race, ethnicity, gender, religion or sexual orientation.

(f) A finding that the race, ethnicity, gender, religion or sexual orientation of the defendant or the victim was the basis of the decision to seek a sentence of death may be established if the court finds that the race, ethnicity, gender, religion or sexual orientation of the defendant or the victim was a significant factor in decisions to seek the sentence of death in other cases in this state at the time the sentence of death was sought.

(g) If the court finds that the race, ethnicity, gender, religion or sexual orientation of the defendant or the victim was the basis of the decision to seek the sentence of death, the court shall order that a sentence of death shall not be sought.

McCleskey? What McCleskey? You thought I was done? How wrong you are. The bill further calls for the creation of a committee to which the state must make a request to seek the death penalty in a particular case, just like with the Federal system, grandly titled The Death Penalty Authorization Committee. The attorney for the defendant will have an opportunity to convince the Committee why the death penalty should not be sought in a particular case.

Sadly, these proposals weren’t pulled out of someone’s ass. They are, in fact, the very recommendations of the Connecticut Commission on the Death Penalty, submitted to the legislature a long 7 years ago. [The full report can be found here.]

Astute readers will have by now guessed that the chance any of these bills will become law is next to a negative billion. In fact, the death penalty bill may have the lowest chance of becoming law ever in the history of legislation in the entire world. But someone in the legislature is up to something and this will make the public hearing damn entertaining. Pity I won’t be able to attend, but if you are, use your mobile phones and leave comments tomorrow.

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:

In practice, however, the rule has not worked to screen out false confessions. Because investigators sometimes suggest and incorporate crime  details into a suspect’s confession, whether deliberately or inadvertently, many false confessions appear highly credible to the secondhand observer. Without an electronic recording of the entire interrogation process, courts are thus left to decide a swearing contest between the suspect  and the detective over the source of the details contained within the confession. Moreover, the quantum of corroboration in most jurisdictions that  apply the trustworthiness doctrine is very low, allowing many unreliable confessions to go before the jury (Leo et al., 2006).

In addition, while courts have taken a hard line stance condemning physically abusive tactics during interrogations, their rulings in the area of psychologically abusive tactics can be best seen as condoning the methods. The psychologically abusive tactics can be briefly categorized as: maximization and minimization, false-evidence ploy and other forms of deception (most notably not objected to in Frazier v. Cupp).

When dealing with a case that involves confessions, it is important to know the different types of false confessions and how they are induced. This paper classifies them into three types (drawing on an earlier taxonomy by Kassin): voluntary, coerced-compliant, and coerced-internalized.

Voluntary false confessions

This is where the subject intentionally confesses to a crime he did not commit. The reasons are varied: notoriety, a breakdown in reality monitoring and most frequently to protect the real perpetrator.

Compliant false confessions

These are the types of false confessions one most frequently associates with this concept. Think of it as acquiescing to the color of authority. This is the kind of false confession that also poses the greatest problem for both defense attorneys and jurors. The prevalent thinking is that one would never confess to a crime they did not commit, no matter how persuasive the interrogator and thus if there is a confession, it must be true. Yet the psychology of the human mind stands at odds with this assumption.

Demonstrating the form of influence observed in classic studies of social influence (e.g., Asch, 1956; Milgram, 1974), this type of confession is an act of mere public compliance by a suspect who knows that he or she is innocent  but bows to social pressure, often coming to believe that the short-term benefits of confession relative to denial outweigh the long-term costs. Based on a review of a number of cases, Gudjonsson (2003) identified some very specific incentives for this type of compliance—such as being allowed to sleep, eat, make a phone call, go home, or, in the case of drug addicts, feed a drug habit. The desire to bring the interview to an end and avoid additional  confinement may be particularly pressing for people who are young, desperate, socially dependent, or phobic of being locked up in a police station. The pages of legal history are filled with stories of compliant false confessions.

Internalized false confessions

This is third type, where not only does the suspect confess, but also starts to believe that he or she has actually committed the crime in question.

So what causes people to falsely confess? As I mentioned above, it seems incongruous to you and me that a person who knows that he is innocent would nevertheless confess to a crime. The answer begins with basic human psychology: we are highly responsive to reinforcement and subject to the laws of conditioning and of course our behavior is influenced by our perceptions of short-term rather than long-term consequences.

A voluminous body of research has shown that people make choices that they think will maximize their well-being given the constraints they face, making the best of the situation they are in—what Herrnstein has called the ‘‘matching law’’ (Herrnstein, Rachlin, & Laibson, 1997). With respect to a suspect’s response to interrogation, studies on the discounting of rewards and costs show that people tend to be impulsive in their orientation, preferring outcomes that are immediate rather than delayed, with delayed outcomes depreciating over time in their subjective value (Rachlin, 2000).

In addition to the intrinsic factors of human psychology that lead to false confessions, one must also be on the lookout for the external circumstances that can result in these confessions. Kassin breaks them down into two parts, each with subparts: the situational risk factors and the dispositional risk factors.

Situational risk factors include interrogation time, false evidence and minimization. Interrogation time, obviously, is the length of time that a suspect is interrogated. Some fun facts: the average interrogation lasts anywhere from 30 minutes to 2 hours. Interestingly in a 2004 study of 125 proven false confessions,

in cases in which interrogation time was recorded, that 34% lasted 6– 12 hours, that 39% lasted 12–24 hours, and that the mean was 16.3 hours.

When you get into those kinds of numbers, it’s easy to see why one should heed the red flags. Sleep deprivation can lead people to do – and say – almost anything.

False evidence

Once the interrogation has begun, the interrogator will try to convey to the suspect that resistance is futile. Basic psychology tells us that once people see an outcome as inevitable, cognitive and motivational forces conspire to lead people to accept, comply with and even endorse the outcome. Over the years, across a range of subdisciplines, basic research has revealed that misinformation renders people vulnerable to manipulation.

The forensic literature on confessions reinforces and extends this classic point, indicating that presentations of false evidence can lead people to confess to crimes they did not commit

…

That this tactic appears in proven false confession cases makes sense. In self-report studies, actual suspects state that the reason they confessed is that they perceived themselves to be trapped by the weight of evidence  (Gudjonsson & Sigurdsson, 1999; Moston, Stephenson, & Williamson, 1992).

Here’s an example via a study conducted by Kassin:

In one study, Kassin and Kiechel (1996) accused college students typing on a keyboard of causing the computer to crash by pressing a key they were instructed to avoid. Despite their innocence and initial denials, subjects were  asked to sign a confession. In some sessions but not others, a confederate said she witnessed the subject hit the forbidden key. This false evidence nearly doubled the number of students who signed a written confession, from 48 to  94%.

The most famous real-life example of such a confession is that of Marty Tankleff.

Minimization

The final situational risk factor is one we’ve all seen during interrogations: the officer convinces the suspect that confessing is in his best interest. That he is the suspect’s friend and that he can help him if he just confesses; that the judge and prosecutor will understand why he committed the crime, etc. The ultimately exonerated defendants in the Central Park jogger rape case reported feeling that they would be allowed to go home if they just confessed to the crime. Two core psychological phenomena underlie this factor: us being susceptible to reinforcement and and our eschewing long-term consequences in favor of short-term benefits.

Taken together, basic research showing that people are highly influenced by perceived reinforcements and that people process the pragmatic implications of a communication suggests the possibility that suspects infer leniency  in treatment from minimizing remarks that depict the crime as spontaneous, accidental, pressured by others, or otherwise excusable—even in the absence of an explicit promise.

Dispositional risk factors are those that are defendant specific, such as the age and maturity level, the mental and cognitive abilities of a particular defendant and whether the defendant suffers from any psychological disorders. You can easily imagine how any of these (or all) would play a significant role in inducing false confessions.

Interestingly, this paper notes another new and perhaps surprising risk factor: innocence. Yes, it does seem counter intuitive, but apparently recent studies have shown that innocence is a factor that can lead people to falsely confess. This is the “I did nothing wrong, I have nothing to hide” problem which leads innocent people to waive the rights and speak with police, subjecting themselves to the coercive interrogation techniques.

The[...] findings suggest that people have a naive faith in the power of innocence to set them free. This phenomenology was evident in the classic case of Peter Reilly, an 18-year-old who falsely confessed to the murder of his mother. When asked years later why he did not invoke his Miranda rights, Reilly said, ‘‘My state of mind was that I hadn’t done anything wrong and I felt that only a criminal really needed an attorney, and this was all going to  come out in the wash’’ (Connery, 1996, p. 93).

The consequences of false confessions are pretty obvious, starting with police inaction. Once the police obtain a confession from someone they already strongly believe to the be the culprit, they close the investigation, don’t follow up on other leads and ignore exculpatory evidence even if the confession is internally inconsistent, contradicted by external evidence, or the product of coercive interrogation. This, the studies seem to show, spill over onto prosecutors as well, who refuse to accept the idea of false confessions.

But there’s another consequence that is even more troubling for you and I. And that is the effect that a confession has on people’s perception of the remainder of the evidence even when told that the confession was coercively obtained and false! The results of studies in this area are extremely frightening and must be given a lot of though going forward:

In a second study, Hasel and Kassin (2009) staged a theft and took photographic identification decisions from a large number of eyewitnesses who were present. One week later, individual witnesses were told that the person they  had identified denied guilt, or that he  confessed, or that a specific other lineup member confessed. Influenced by this information, many witnesses went on to change their identification decisions, selecting the confessor with  confidence, when given the opportunity to do so.

Mock jury studies show essentially the same results. The fact of a confession may be the single most powerful piece of evidence introduced in a trial to begin with. We learn that people (jurors) may not even fully discount the confession if told that it was coerced (going back to the “why would anyone confess if they didn’t do it, so there must be some reliability or some morsel of truth in it” problem).

For example, Kassin and Sukel (1997) presented mock jurors with one of three versions of a murder trial transcript. In a low-pressure version, the defendant was said to have confessed to police immediately upon questioning. In  a high-pressure version, participants read that the suspect was in pain and interrogated aggressively by a detective who waved his gun in a menacing manner. A control version contained no confession in evidence. Presented with the high-pressure confession, participants appeared to respond in the legally prescribed manner. They judged the statement to be involuntary and said it did not influence their decisions. Yet when it came to the all-important verdict measure, this confession significantly increased the conviction rate. This increase occurred even in a condition in which subjects were specifically admonished to disregard confessions they found to be coerced.

There are several reasons for this – three, primarily:

1. that people still have a hard time believing that even coercive techniques result in false confessions because they are more likely to take behavior at face value than to account for situational factors;
2. that people are terrible at deception detection: both cops and laypeople exhibit accuracy rates that range between 42 and 64% – no better than chance.
3. that confessions often include content cues presumed to be associated with truthfulness.

As Kassin concludes: Uninformed, however, this spectator mistakes illusion for reality, not realizing that the taped confession is scripted by the police theory of the case, rehearsed during hours of unrecorded questioning,  directed by the questioner, and ultimately enacted on paper, tape, or camera by the suspect.

So what is the solution? How do we prevent false confessions from occurring, from being entered into evidence and from jurors continuing to be deceived  by them? The single most important reform is videotaping of all custodial interrogations (which I’ve argued for before). Videotaping not only permits an entirely accurate record of everything to be maintained, it permits the jury to see how the confession was obtained, not just the content of the confession itself. It also deters interrogators from using the most blatant and obvious methods of coercion.

While initially meeting with resistance, the police departments whose jurisdictions have adopted videotaping are now strongly in support of it:

Among the collateral benefits they often cited were that recording permitted detectives to focus on the suspect rather than take copious notes, increased accountability, provided an instant replay of the suspect’s statement that  sometimes revealed incriminating comments that were initially overlooked, reduced the amount of time detectives spent in court defending their interrogation practices, and increased public trust in law enforcement.

In addition to the videotaping of interrogations, Kassin proposes several others reforms in the method of interrogations: limiting the time of such interrogations, a ban on fabricated evidence but not false assertions (as a compromise), moving from a “confession” model to a “fact finding” model of interviewing suspects and eliminating the use of legal consequence minimization in interrogations.

But the bulwark against false confessions remains the recording of interrogations. While most states do not require the videotaping (only 2 do), several others have lately indicated that such videotaping would be a good idea. In addition to Alaska (Stephan v. State, 1985) and Minnesota (State v. Scales, 1994), seven additional jurisdictions—Illinois, Maine, New Mexico, New Jersey, Wisconsin, North Carolina, and the District of Columbia— have joined in  requiring recordings of custodial interrogations in some circumstances (Robertson, 2007; Sullivan, 2004). In several other states, supreme courts have stopped short of requiring recording but either have issued strongly  worded opinions endorsing recording—e.g., New Hampshire (State v. Barnett, 2002) and Iowa (State v. Hajtic, 2007)—or, in the case of Massachusetts, held that where law enforcement officers have no excuse for the failure to  record interrogation, defendants are entitled to a strongly worded instruction admonishing jurors to treat unrecorded confessions with caution (Commonwealth v. DiGiambattista, 2004).

In Connecticut, however, there is no such requirement. Our Supreme Court recently heard oral argument in State v. Julian Lockhart, in which it is being asked to hold that videotaping interrogations is required under the State constitution. I’m not holding my breath.

In the meantime, however, I strongly urge you to read the entire paper by Kassin and every time you have a case that involves a confession, look closely for the presence of these risk factors. I might even go so far as to say that one should make it a practice to consult with an expert in cases involving confessions.

So, in honor of Good Friday (no, not really, don’t get mad at me and leave a 1000 comments), here are three Good Bills that died this year in committee, and two “it’s Good these Bills died in committee”:

These Good Bills Died:

• Videotaping of custodial interrogations
• An Act Concerning Eyewitness Identifications
• An Act Concerning the Rescission of Probation

It’s Good These Bills Died:

• An Act Implementing The Adam Walsh Act
• An Act Concerning the gutting of habeas corpus reform

Of course, a straight-up abolition bill was proposed but there was no public hearing. I’ll have a post on the good bills that passed and the bills that shouldn’t have passed coming up soon.

It’s absolutely disgusting. There are two cops talking to this child, without the presence of a parent, guardian or lawyer.

They repeatedly ask him if he’s lying and whether he was home before he says he was. He steadfastly maintains his version of events and denies being involved. He even describes with some detail a car he saw driving away from the house.

Obviously, this is not the part of the video where he “confesses”. Just listen to the voice of the 8 year old boy. It’s disgusting that they’re doing this.

I am quite curious about the prosecutor’s motive in releasing this truncated video. Any thoughts on that? It seems like a PR ploy, but I can’t quite figure out their angle. Are they bowing to media pressure? Are they trying to show the public that this was a conniving young boy? Portray him as a liar?

Whatever their motives may be, the bottom line is that the police should not have interrogated him for hours without the presence of an adult.

Sometimes cops are too eager to “solve” a crime and do so at the expense of Constitutional rights. This also strikes me as a situation where they have blinders on and are now committed to their theory that the boy did it, while other legitimate avenues of investigation are going cold.

I would be rather surprised if a judge admits this confession at a trial – and if by some miracle it is admitted – I would be even more shocked if an appellate court permitted the conviction to stand.

A shame, really, that this kind of shit still goes on.

An AP report with some clips of the video is below; the full raw feed is at this link.

[youtube]http://www.youtube.com/watch?v=OuZ0AkqSILM[/youtube]

In the end, it looks like the system worked. A jury returned not guilty verdicts yesterday on all counts. Wells-Jordan was charged with being an accessory to assault, robbery in the first degree and conspiracy to commit robbery. The victim, Herbert Fields, was shot dead during this robbery by another man, who plead guilty to murder.

The recantation and coercion:

But when Johnson [the co-d] testified during the Wells-Jordan trial, he recanted his police statement. Michael Holmes, who police believed was the third person involved in the robbery but was not charged, also contradicted his taped statement.

Wells-Jordan did not testify on his own behalf, but his aunt and legal guardian, Julia Sykes, testified she and her nephew underwent lengthy, high-pressure interrogations in September 2006 and two months later, the day he was arrested.

Skyes, Johnson and Holmes said [now retired, but still embroiled in scandal police officer] Willoughby told the three teenagers a lie in an effort to get them to confess: that their handprints were on Fields’ car. That handprint really belonged to [someone else].

There were two interviews between Wells-Jordan, his aunt and the police, the latter resulting in the false confession. The circumstances surrounding the confessions involved the usual “we know what’s best for you, so if you tell us you did it, you won’t be a defendant” spiel.

The expert:

Dr. Solomon Fulero, the defense expert, testified about – among other things – the Reid Nine Step [Liar, Liar: Norm].

Fulero said police across America, including in New Haven, regularly use psychological techniques to elicit confessions by suspects, true and false.

“The goal is to get somebody to the place where (they believe that) for them to say they did something is better for them than to say they didn’t,” Fulero testified, “even if they didn’t do it.” Fulero said police use “the evidence ploy” in which a suspect is falsely told of evidence against him. “This makes the person think his situation is hopeless and denials will be useless.”

Fulero also said studies show juveniles are more vulnerable to giving false confessions.

The almost-fight:

When Johnson came to Superior Court last Thursday as a prosecution witness, he and Assistant State’s Attorney James Clark became embroiled in increasingly tense question-and-answer exchanges.

After Johnson turned to Judge Bruce Thompson and muttered he couldn’t take much more of Clark and added, “I’m about to hit him,” Clark quickly took several steps toward Johnson and said, “Go ahead, I’m here.”

Thompson immediately asked jurors to leave the room. When they returned, Johnson’s testimony resumed without Thompson saying anything to the jury about what had occurred.

Defense attorney Diane Polan asked for a mistrial, but the judge declined, instead issuing a curative instruction.

The embattled cop:

Former police Detective Clarence Willoughby’s alleged aggressive interrogation techniques were described in Superior Court testimony Tuesday, but he again won the right not to be forced to testify in the trial of Kwame Wells-Jordan.

[Judge] Thompson had previously ruled Willoughby is entitled to use Fifth Amendment protection, but Polan wanted jurors to at least see him exercise that right. The judge agreed with Willoughby’s lead attorney, Norman A. Pattis, that Willoughby’s testimony could jeopardize his own legal case. He is charged with forgery, larceny and making a false statement after allegedly stealing from a fund for confidential informants. He has pleaded not guilty.

The judge sided with Willoughby.

In the end, Attorney Polan’s argument was simple: She told jurors in her closing argument that police didn’t bother to “connect the dots” leading to the real perpetrators because they already had the teenagers’ statements. This is now becoming a familiar refrain, with New Haven Public Defender Tom Ullmann’s charge a few weeks ago.

I bet Law and Order couldn’t come up with a storyline this good.

“The police are waking up to the fact that this is not the enemy, that it can be their best friend,” [Judge Kevin P.] McMahon said.

The police have long resisted being compelled to videotape interviews but apparently are seeing good results when they participate voluntarily.

“There has been, for quite a while, a positive reaction to it, but a recognition that we have to be careful and do it right,” said Kevin T. Kane, chief state’s attorney. Kane said there are many issues yet to be resolved, such as creating transcripts of the interviews, preserving the records and training investigators. He said one consideration will be whether the camera inhibits suspects from talking or investigators from using normal or lawful investigative techniques, two reasons police had resisted videotape in the past.

So how are some departments feeling about this?

The time for videotaping has come, said detective Lt. John Varone of the Groton Town Police Department. His department will be included in the second wave of the pilot program and will share its resources with departments east of the Thames River. In the home invasion/murder case, which Varone declined to discuss specifically, police used a camcorder. Eventually, the department’s interview room will be revamped to accommodate state-of-the-art video equipment.

“I think some of the defense attorneys are in for a huge, huge letdown when we do this,” Varone said. “Now they’re not going to be able to challenge us and say we tricked them (the suspect).”

Ugh. This is not a game of Gotcha!, Lt. Varone. I don’t wake up every morning hoping that some cop tricked my client somewhere so I can challenge the confession. We want transparency. The point of videotaping interrogations is precisely to see what cops are doing and to make sure that they don’t get a false confession because they’ve got your sights set on one man and can’t look beyond their nose.

Defense attorneys have long called for mandatory recording of interrogations.

“I think it adds transparency to the process that benefits everybody, both the defense and the state,” said New London attorney Matthew G. Berger. “It removes doubt about what happened.”

Public Defender extraordinaire Tom Ullmann wants to videotape interviews with witnesses.

“Juries are not stupid,” he said. “They don’t understand why this stuff can’t be taped. And from a police perspective, if you did the job correctly and you’ve got someone making a statement and have the whole interview process recorded, it’s going to be reliable.”

Ullman said juries will now be able to see “what police really did.” The courts have allowed police to use trickery and false statements during interrogations, he said, “but I think there is much more problematic stuff that goes on that would stop, such as (the police) suggesting what photo to pick out of a lineup.” In New Haven, Ullman said, the public defenders had a case where the detective whispered “numero dos” to help the eyewitness pick the correct photo.

I don’t know how The Day got this next bit of information, but it sure is juicy:

Defense attorneys regularly ask judges to suppress statements that are not recorded. On Wednesday, attorneys Richard Emanuel and Douglas Nash filed a brief with the state Supreme Court to overturn the conviction of Julian Lockhart, who was convicted in the beating death of Robert Glidden in Durham in 2002. The attorneys claim in the appeal that “the electronic recording of interrogations, advisements of rights and statements is constitutionally required when the interrogation occurs at a place of detention and recording is otherwise feasible.”

I bet that’s a State Constitution claim.

In my post discussing the demise of Miranda, I approvingly quoted the author’s mention of videotaping confessions as a possible solution. Scott writes today and warns us not to get too invested in videotaped confessions and why they may not be the answer. He is correct in that videotaped confessions are not very helpful and may end up providing the final nail in the coffin of a factually innocent defendant who goes to trial.

Scott’s post seems to focus only on confessions, as opposed to videotaping the entire interrogation(s). That’s the mistake. If we tape the entire interrogation instead, though, these reservations may not exist. Here‘s a report from The Justice Project which argues that entire interrogations must be videotaped. After all, it is the interrogation that Miranda seeks to safeguard. So why should its “replacement” focus only on the confession?

It is the interrogation that needs to be videotaped to provide a complete picture of the voluntariness of a confession. Of what use is a confession only? That is principally the same as a written statement. By that point, the defendant has been broken down and tricked, cajoled or threatened into confessing. If he seems resigned on videotape while delivering his confession, it may be a product either of his guilt overwhelming him or of fatigue and submission.

A google search for videotaped interrogations provides a wealth of information: some as far back as 2002 from Chicago and some more recently from California.

There is, of course, the initial hurdle of resistance from law enforcement to overcome, but as with lineup and ID procedures, the wall is slowly starting to crumble. As of April, 2006, there were 450 law enforcement departments nationwide that required videotaping of interrogations. From Northwestern Law, here [pdf] is a list of agencies in the country today employing some form of videotaping and here [pdf] is a fantastic report (that I intend to read in-depth) from 2004 chronicling police experiences with videotaping interrogations. The New York County Lawyers’ Association has published this report [pdf] calling for interrogations to be videotaped. It analyzes statutes and regulations in various states.

In Connecticut, a pilot program was approved last year for certain jurisdictions. I haven’t heard anything about it or how it is working. Anyone who knows want to chime in? Did any jurisdictions actually sign up for the pilot program? [Previous coverage here and here.]

Once concern from law enforcement is that it may be difficult to videotape interrogations in all circumstances. I don’t think that’s true. If a suspect is arrested in a remote area, cops have two options: (1) use the in-car video system or (2) wait till you get to a police station. What am I missing here?

If the entirety of an interrogation is recorded – videotaped – then it certainly would give the viewer an accurate picture of the voluntariness of an eventual confession.

The only obvious problem that I can see is defining when such a recording must commence. Is “custody” too late in the game? What if there is an audio recording of initial contact and then video recording of an interrogation? I guess the answer will depend on what studies show to be first time that coercive tactics are used. I haven’t done enough research to provide a reasonable answer, but I think it is one that can be answered.

Videotaped interrogations may not be a panacea, but I think they will be a hell of a lot better than what we have now.

photo credit: werewegian

“Electronic recording of interrogations will assure protections to the innocent,” said Amanda Melpolder, a policy advocate for the Innocence Project, which has helped exonerate 198 people since it was established in 1992.”Less than ideal interrogation procedures have contributed to or been the main factor in nearly one in five wrongful convictions of individuals later exonerated through DNA evidence,” Melpolder said. “In each of these cases, the true perpetrator remained at large. … The mandatory recording of interrogations is a reform whose time has come.”

Of course, not all agree, especially law enforcement. Their main concern is that it will “hinder the investigators’ interview techniques”. As opposed to ensuring there are no false confessions.

Public Safety Commissioner John A. Danaher III said in his testimony for a recent legislative hearing on the matter. “Defense attorneys may use the tape in an attempt to divert the focus of the jury’s attention in a criminal trial from the accused to criticism of an investigator’s interrogation techniques.”

Good job by the legislature and I hope the pilot program will convince them that this needs to become law in Connecticut.

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