Posts Tagged ‘Justice’

Why Do 95% of Defendants Accept Plea Offers?

February 21, 2018

This article is based on an article in by Jeffrey D. Stein titled, “Why an innocent person would accept a plea deal” in the Outlook section of the 14 April 2017 issue of the Washington Post. Jeffrey Stein is a public defender. He writes that his conversation with his clients almost always begins in jail. Usually the prosecution extends a plea offer within a few days and tells the suspect that the offer will expire in a week. A week is rarely a sufficient amount of time to conduct the necessary research about the crime.

He writes that he lays out options for the client. He could go to trial, but that might mean waiting in jail for months, if not years, before a jury hears the case. Of course, if the client can post bail, then he would not need to wait in jail. The other option is to accept the plea offer. Stein notes that in some cases the sentencing difference between accepting and losing at trial can be a matter of decades. This reality answers the question in the title of this post.

But does plea bargaining affect the correct administration? According Registry of Exonerations, 15% of all exonerates, people convicted of crimes later proved to be innocent—originally pleaded guilty. That share rises to 49% for people exonerated for manslaughter, and 66% for those exonerated of drug crimes.

He writes, “The final stage happens in court. Your client has signed the paperwork admitting to something you believe in your gut that he did not do. Maybe he acted in self-defense. Maybe he was standing near the actual perpetrator and were presumed guilty by association because of the color of his skin. Maybe he was the victim of an honest misidentification.”

“The judge turns to you and asks, ‘Does either counsel know of any reason that I should not accept the defendant’s guilty plea?” You hesitate. You want to shout:’Yes, your honor! This plea is the product of an extortive system system of devastating mandatory minimums and lopsided access to evidence. My client faced an impossible choice and is just trying to avoid losing his life in prison.”

“But you stand by your client’s decision, which was made based on experiences and emotions only they can know: You reply: ’No’ your honor.’”

Obviously, the author of this article is a conscientious public defender who has adequate time to work for the client. However, even conscientious public defenders are usually overworked and have neither the time nor the resources to provide the defense they would like to provide.

So, it is usually better to provide your own attorney even if it forces you into debt and perhaps even bankruptcy. That is the price of justice.

Frequently during the police interrogation innocent defendants will confess their guilt. Interrogations can go on for extremely long periods of time even if they are not physically abusive. To get out of the interrogation, the person confesses guilt, knowing he is not guilty and assuming this will come out during the investigation. This is not very likely to happen.

So, as has been frequently mentioned in this blog, the primary problem with the legal system, is that it provides little justice.

© Douglas Griffith and, 2018. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Douglas Griffith and with appropriate and specific direction to the original content.

Why False Confessions Trump Evidence

June 30, 2015

Perhaps the most blatant example of the title  is the case of the Central Park Five.  This case attracted enormous attention as it supposedly characterized “wildings”  that were taking place.  Here five black men were convicted of raping and brutalizing a young woman.  There is a video piece on this that I encourage you to watch should you get the opportunity. You will see how the police interrogated these suspects, not with the hope of getting at the truth, but rather at getting them to confess, which they did.  However, it was quite clear from the physical evidence that the police were intent on getting confessions rather than seeking the truth.  The physical evidence at the scene indicated that this was not a gang rape.  And the DNA evidence, which is regarded as close to a gold standard as one can find for legal proceedings, completely exonerated these five men.

One of the reasons that confessions are regarded so highly is that juries ask themselves “Why would individuals incriminate themselves?  Don’t they know about their Fifth Amendment rights?
If you have viewed or get the opportunity to view the interrogations of the Central Park Five  you will see the extreme pressure these individuals are placed under in uncomfortable conditions for prolonged periods of time.  Moreover, there is psychological research showing that people can be falsely convinced that they did actually commit the crime (see the healthy memory blog post “False Memories Leading to Confessions” ).  And they are told that the investigation will continue, so being desperate or wrongly convinced, they reason that eventually truth will out and that they will be exonerated.

Research has indicated why these false confessions are so powerfully persuasive.  Common sense informs people that people will not incriminate themselves, these confession contain credible narratives (which often are created during the interrogation process), these narratives corrupt other evidence and undermine the truth-seeking process.

So what can be done about this?  First of all,  people, police, prosecutors, judges, juries, and appeals courts should be made aware of this research and question the reliability of these confessions.  Interrogations should be videotaped and reviewed.  There are recommended procedures for these interrogations and these procedures need to be followed.

The Law and Psychological Science

January 6, 2013

Should I ever be charged with a crime, I shall not be one of those people who say that they will be proven innocence because they have faith in the legal system. Rather I’ll be saying that although I am innocent, I have no faith that I shall be exonerated. In my view there is little in common between the concept of justice and the legal system. At least in the United States, each individual gets the amount of justice that individual can afford. Say I am charged with a crime, and I am innocent. Going with a public defender would most likely increase the probability of either a conviction or some plea bargain to a lesser sentence. If I want to reduce my chances of being wrongfully convicted, I will pay for the best judicial defense I can afford. If I am exonerated, there is a good chance that I have gone into bankruptcy. So, even in that case, can we say that justice has prevailed?

I am annoyed by the instructions the judge provides to the jurors in criminal cases. In a criminal case it is usually to be convinced beyond a reasonable doubt, or some variant thereof. Now what does that mean? There needs to be some trade-off here. How many innocent people would we be willing to convict to prevent a guilty person from going free? Is it one in one hundred? One in twenty? One in ten? One in five? The instructions need to be more specific.

Here are some statistics from an article in Scientific American Mind.1 412 is the number of people exonerated in the U.S. After being implicated by mistaken witness testimony as of September 2012. 137 is the number of people exonerated in the U.S. after being implicated by false confessions as of September 2012. All too frequently we read about prisoners being released from prison on the basis of DNA evidence. Often this occurs after they have spent many years in prison.

What is infuriating is that even when there is compelling evidence, such as DNA evidence, that someone has been wrongfully imprisoned, the so-called justice system is reluctant to release the individual. This supports the idea that lawyers, both defenders and prosecutors, are not interested in justice; they are interested winning.

So what does psychological science have to offer the legal system if it does want to pursue justice? Psychological science studies how we perceive, think, solve problems, make decisions, how we process information and how our memories work. I think the relevance should be obvious here. We know that we have two systems for processing information: System One which is fast and does the initial processing of information. System Two is slow and deliberative, and has the responsibility for checking the accuracy of System One output. Our default when we encounter new information, absent cues to the contrary is to believe it. If it is wrong, the hope is that it will eventually be corrected by System Two. So when judges inform jurors that they are to disregard something said or introduced in court, research has shown that it is unlikely to be disregarded just because the judge said so. Research has indicated that a short and to the point explanation as to why the information should be ignored is effective (See the healthymemory blog post, “Solutions and Good Practices for Misinformation”).

Extensive research has been done showing that eyewitness testimony is highly unreliable, yet courts and jurors have historically weighted it highly. Although it is true that recognition is worse for people of differing ethnic or racial groups, it remains unreliable even within the same group. The Innocence Project, a national organization focused on correcting wrongful convictions through DNA testing and judicial reform, has freed 301 individuals on the basis of DNA testing. In about 75% of these cases, a principal cause of the erroneous guilty verdict was faulty eyewitness testimony. In about 35% of these cases the testimony stemmed from two or more incorrect observers. This demonstrates that consistency should not be confused with correctness. That is, reliability is not necessarily validity. The method for doing facial recognition is extremely important. Rather than present pictures together in groups, they should be presented individually. Moreover, there should be no guarantee or suggestion that the guilty party is one of the photographs shown. And the officers, themselves, should be blind regarding the identity of the suspect. The same procedure applies to line-ups, that they should be done individually with no guarantee or suggestion that the suspect is there.

One study indicated that 63 percent of the respondents believe that “memory works like a video camera.” Research has shown that nothing could be further from the truth. Memory is fallible and is easily influenced by suggestions and contexts. Moreover, each time we recall information, there are changes. Questioning by investigators, even if not intended, can lead to faulty recall and erroneous convictions. The cognitive interview is a procedure that has been developed by psychologists that might lead to more accurate eyewitness testimony. It relies on techniques derived from scientifically supported principles of memory. It asks open-ended rather than suggestive question. It reminds witnesses of the context of the crime and offers them reminders of the crime, and discourages them from guessing.

Confessions should not be regarded as conclusive. There were 200 people who confessed to the kidnapping of Charles Lindbergh‘s baby. The Innocence Project found that up to 27% of individuals initially found guilty but later cleared by DNA evidence had confessed in spite of their clean hands.

This indicates that the videotaping of interrogations is essential. It is also important to videotape the interrogators as well as the suspect.

Psychologists are also skilled in designing experiments and research projects to minimize bias. Correct sampling procedures are essential. This is true for juries. It is not surprising that mixed -race juries are fairer to black defendants. It also appears that diversity improves the accuracy and critical thinking of jurors. Perhaps you do not need training in psychology to know realize this. It would appear to be a matter of common sense. The legal system has been slow to realize this.

In the United States, the Supreme Court sits atop the legal system. There are different approaches to interpreting the Constitution of the United States. There is a progressive view that the Constitution is to be viewed as a living document, and is to be interpreted in the view of new knowledge. The competing view is the Strict Constructionist view. According to this view the Constitution is to be viewed as the original writers intended. Remember that at the time the Constitution was written, slavery was legal and thrived in the southern states. Black people were regarded as being three-fifths of a human being. Women could not vote. At that time Benjamin Franklin was one of the most knowledgeable scientists in the world. Today a high school science student knows much more science than Benjamin Franklin ever did. Currently five of the nine justices on the Supreme Court are regarded as strict constructionists. This might account for some of their decisions and for some of the difficulties the United States currently finds itself.

1Lilienfeld, S.O., & Byron, R. (2013). Your Brain on Trial, Scientific American Mind, January/February, p.7 & pp.44-53.

© Douglas Griffith and, 2012. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Douglas Griffith and with appropriate and specific direction to the original content.

The Prosecutor’s Fallacy

June 2, 2010

There are 175 accredited law schools in the United States. Only one of these schools requires a basic course in statistics or research methods.1 This is unfortunate as this deficiency in education has had adverse effects on justice. Prosecutors have even had a statistical fallacy named after them, the Prosecutor’s Fallacy. Here is the Prosecutor’s Fallacy:

p(match) is mistaken for p(not guilty|match).

 Suppose that you have been charged with first degree murder, a capital offense. You undergo DNA testing. Your DNA is found to match a DNA sample taken from the scene of the crime. The expert witness testifies that only one person in 100,000 would be able to match the DNA sample. You might conclude that it is all over for you. Many prosecutor’s would conclude that they had an open and shut case. But suppose that you lived in New York City and that the crime took place in New York. I believe that the population of the metropolitan New York is around eight million. So within the metropolitan New York area there are about eighty other individuals who could provide matching samples. So, given no other evidence against you, the probability is only 1/80 (0.0125) that you are the murderer.

DNA evidence can be more beneficial to the defense than than to the prosecution. For example, if the DNA from the semen sample taken from a rape victim does not match that of the accused, it is fairly certain that the accused is not guilty. It is difficult to understand how judges, if they are truly interested in justice, would ever deny DNA tests for rapists convicted before DNA testing had advanced to its present state.

A related fallacy in statistical reasoning can be found in the O.J. Simpson case. Simpson’s lawyer, Alan Dershowitz presented the data that as many as four million women are battered annually by husbands and boyfriends in the United States in 1992. In 1992 913 women were killed by their husbands and 519 were killed by boyfriends. So out of these four million cases of abuse, there were only1,432 homicides. From this Dershowitz concluded that there is less than 1 homicide per 2,500 cases of abuse. If you do the computations, you will find that this is still a conservative estimate. Although this is a conservative estimate, it is the wrong statistic. What we need to know is of the battered, murdered women, how many were killed by someone other than their husband or boyfriend. When this is considered we find that 89% of these women were murdered by their husband or boyfiend and only 11% by someone else. This statistic casts a dramatically different light on the probability of Simpson’s guilt. Yet the prosecution let this past without offering this relevant statistic.

Courts are frequently given the responsibility of determining whether violent people should be released back into the community. Psychiatrists are given a difficult task when they need to render an opinion as to whether a violent or potentially violent person should be released. The American Psychiatric Association provided this statement to the Supreme Court of the United States: “our best estimate is that two out of three predictions of long-term future violence are wrong.” Still the Supreme Court of the United States has ruled that such testimony is legally admissible as evidence. Here is their reasoning, “mental health professionals are not always wrong…only most of the time.”

1Faigman, D. L. (1999). Legal Alchemy: The Use and Misuse of Science in the Law. New York: Freeman and Co.

Transactive Memory and the Legal System

January 14, 2010

A recent article, “Social Networking Among Jurors is Trying Judges’ Patience” (The Washington Post, Saturday January 9:C01, or search for the tag, “Transactive Memory” on presents the story of a juror on a murder trial of a 23 year-old charged with murdering a homeless man. The juror was confused by the word “lividity” and what role it might have played in explaining the circumstances of the beating death. To clear up this confusion, the juror, a retired engineer, took recourse to transactive memory and looked up the definition in the online encyclopedia Wikipedia. The result of his action was for an appeals court to throw out the defendant’s first-degree murder conviction and order a new trial. The court ruled that this inquiry into Wikipedia violated the judge’s order prohibiting jurors from researching the case.

The article proceeds to discuss the judge’s concern with how this technology is interfering with the “legal process.” This is part of a larger judicial effort to enforce ignorance among jurors. Jurors are instructed to avoid reading about the trial, to not conduct any research on their own, and to not discuss the case among themselves outside formal deliberations. So jurors are precluded against recourse to any form of transactive memory, be it human or technical. The objective is to ensure that jurors contemplate only the evidence admitted at trial and at the appropriate time.

A key question here is what is the justification for this objective. Is there empirical evidence supporting this policy that indicates such a policy results in higher conviction of the guilty and fewer convictions of the innocent? The answer is no because the law is predicated primarily on legal precedents. For a cynic, such as myself, this precedent is likely based on a preference of lawyers for arguing their cases in front of relatively unsophisticated juries because they are easier to manipulate. Lawyers usually do not accept jurors with advanced degrees or specialized knowledge. There is a distinct preference to dumb down juries.

The technological age in which we are privileged to live is based upon science and empiricism. The beginnings of our legal system began prior to the development and acceptance of scientific empiricism as being the preferred standard of truth. The legal system is preoccupied with procedure for procedure’s sake, rather than trying to establish which procedures are more likely to lead to accurate outcomes.

Consider the alarming number of people who have been released from prisons and death row for convictions that have been overturned on the basis of DNA evidence. Fortunately, the scientific standard of DNA was allowed to prevail in these cases, but what about the validity of the procedures that led to these false convictions? Heavy reliance has been placed on eyewitness testimony in spite of strong empirical evidence that eyewitness testimony is highly unreliable.

Rather than fearing this new technology, courts should embrace it. It is more likely to lead to truth and more accurate court decisions. So not only should jurors be given access to all relevant technology, they should also be encouraged to discuss the case among themselves throughout the trial. They should also be given access to “lifelines” outside the court.

If the legal system is interested in the pursuit of justice, it should become preoccupied with the pursuit of truth rather than the pursuit of procedure.

© Douglas Griffith and, 2009. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Douglas Griffith and with appropriate and specific direction to the original content.