Newsgroups: misc.consumers,talk.politics.medicine,sci.med,alt.true-crime
Subject: Re: Eyewitness Testimony and Injustice
From: kfl@clark.net (Keith Lynch)
Date: Sat, 29 May 1999 21:57:53 GMT

In article <7ianac$2oo@dfw-ixnews6.ix.netcom.com>,
Steven B. Harris <sbharris@ix.netcom.com> wrote:
> ... the law allows conviction of people of major crimes, even
> capital crimes, without any physical evidence whatsoever-- but
> rather on eyewitness testimony alone.  And that is what nearly all
> these cases of unjust conviction have in common, if you look at them.

That's certainly one major cause of false convictions.  But there are
at least nine others.  I speak as someone who was falsely convicted
and imprisoned.  (See http://www.clark.net/pub/kfl/prison.html for
details of my case.)

1) Reliance on testimony from criminals who are rewarded for their
   testimony:

   a. The classical "prisoner's dilemma" problem.  There are two
      suspects, and each is told they'll receive a shorter sentence
      if they finger the other guy before he fingers them.  This can
      result in the wrong person being convicted, or even in both of
      them being convicted even if both are innocent.

   b. Cell-mate testimony.  Everyone in jail knows that they can receive
      preferential treatment if they "happen to overhear" a confession
      by a cell-mate, and are willing to testify to it.  Prosecutors
      typically neither know nor care whether the testimony is honest.

2) Police forgery of evidence:

Police usually believe they have an infallible built-in lie detector.
In many cases, if they're unable to find incriminating evidence on
someone they are certain is guilty, they'll manufacture it.  For
instance when they raid an apartment being used as a crack house and
find no drugs, perhaps because the drugs were quickly drawn up into
the upstairs apartment on a trap-door platform, there's no way to
find the drugs without getting simultaneous search warrants for both
upstairs and downstairs apartments.  It's much easier, if the police
are absolutely certain it's a crack house, to simply plant some drugs.

Fine, except sometimes they're wrong, and it ISN'T a crack house.
But try convincing a jury of that, when the police testify under
oath that they found cocaine, and can show the jury the cocaine.

3) Jury belief in hidden incriminating evidence:

There's a widespread belief that lots of incriminating evidence is
kept hidden from juries.  Sadly, this belief does have some truth
behind it.  Juries often compensate by assuming that if an obviously
weak case is brought, the prosecutors, who have access to ALL the
evidence, are certain of the defendant's guilt, and thus that the
defendant is guilty.

4) Police lie during interrogations:

Many falsely accused people believe that police are good guys, and
that good guys never lie, at least not about anything serious.  And
that the police have made an honest mistake and will let him free
momentarily once he convinces them of this.  And that if he remains
silent, he will be presumed guilty and have to spend lots of
unnecessary time and money fighting the charges.  (Only the last
of those three sentences is true.)

The defendant is asked for explanations of various facts.  First
totally inoccuous ones.  But then...

If the defendant is assured that the prints of the shoes he was
wearing were found at the scene of the crime, and an explanation
is repeatedly demanded, he is likely to say "that's completely
impossible, you must be mistaken".  If assured that the police are NOT
mistaken, or if asked to assume for the moment that they aren't, he's
likely to come up with an explanation such as "the only way that could
possibly be true is if the criminal stole my shoes and later returned
them".

In court, this and other strained explanations will be used against
the defendant out of context.  "When we questioned him, the defendant
claimed that he was innocent, but that the true criminal stole his
shoes, committed the crime while wearing them, and then later returned
them, without the defendant ever noticing the break-ins, or that his
shoes were ever missing".  This certainly makes the defendant sound
guilty.

5) Court-appointed defense lawyers:

If the defendant can't afford a lawyer, the state will appoint one for
him.  The lawyer will be paid a very small amount.  The same amount
whether he wins or loses, and no matter how much or how little time it
takes.  Except for a tiny number of independantly wealthy altruistic
idealists, the only lawyers who will take this offer are ones who are
desperate.  Ones whose skills are so poor they can't earn that much in
private practice.  And if they DO fight for their client, the state
will simply never call on them again, while the cooperative ones are
granted all the cases they want.

As such, court-appointed attorneys usually work AGAINST their client's
interest, lying to him about the nature of the case, the law, and the
evidence, and convincing them that the case is hopeless.  The lawyer
will say that fighting the charges would result in years in jail even
before and during the trials, and in very harsh sentences after.  But
that a plea bargain would get them a short probation.  The lawyer may
even threaten to withdraw from the case if the defendant isn't willing
to plead guilty to anything.

Letting the state appoint and pay a defense attorney makes about as
much sense as letting the defendant appoint and pay his own prosecutor.

6) Plea bargains:

People who are found guilty in a trial typically get more than twice
the prison time of someone who plea bargains.  In other words, the
biggest crime of all, in terms of what prison time is actually given
for, is demanding a trial!  If an innocent defendant is convinced
that there's a good chance he'll be found guilty, he is likely to be
coerced into falsely pleading guilty.

7) False confessions:

Believe it or not, many people really do falsely confess after several
hours of interrogation.  Especially (though not exclusively) poorly
educated people.  This is after several hours of tag teams of police
all saying something like "We are really trying to help you, but you
have to cooperate.  We don't want to have to put you in the `population'
along with the killers and rapists who'd just as soon kill you as look
at you.  We know you did it.  All we want is to know exactly HOW you
did it.  Did you do it THIS way or THAT way?  Just tell us which."
And saying it with great sincerity, to the point where the accused
might either come to doubt his memory, or to honestly believe that if
gives them something that they'll let him go.

Police even ask you to speculate on how you would have done it if you
were the crook.  Or how you think the crook might have done it.  Or
they might ask you if perhaps you ever had a dream that resembled the
crime, and if so, to describe it.

8) "Children never lie":

It's often claimed that very young children never lie, and are never
mistaken, at least not if what they are accusing is sufficiently
horrific.  Not even if they are extensively coached, or if they are
rewarded for the "correct" testimony and punished for the "wrong"
testimony.  I don't think so.

9) Really horrible crimes CAN'T go unsolved and unpunished:

I have no reason to doubt that McVeigh is guilty of the Oklahoma City
bombing.  But suppose he had been just a little better at covering
his tracks, such that he was never suspected.  I am certain that they
would have arrested someone, somewhere, somehow.  And very likely
convicted them.  An innocent security guard came very close to being
convicted for the Atlanta Olympics bombing.

I don't claim to have all the solutions.  But certainly the death
penalty should be abolished until such time as nobody is falsely
convicted of any serious crime in the US for at least 20 years.

And the exclusionary rule and state-appointed defense attorneys should
be abolished.  These well-intentioned reforms resulted only in making
existing problems much worse.
--
Keith F. Lynch -- kfl@clark.net -- http://www.clark.net/pub/kfl/
I always welcome replies to my e-mail, postings, and web pages, but
unsolicited bulk e-mail sent to thousands of randomly collected
addresses is not acceptable, and I do complain to the spammer's ISP.

Newsgroups: misc.consumers,talk.politics.medicine,sci.med,alt.true-crime
Subject: Re: Eyewitness Testimony and Injustice
From: kfl@clark.net (Keith Lynch)
Date: Mon, 31 May 1999 18:37:51 GMT

In article <3752918F.8A02F306@mindspring.com>,
Jim  <JDBarron@Mindspring.com> wrote:
> The exclusionary rule protects the innocent because no evidence
> obtained without the prior warning can be used in court.

The exclusionary rule protects the guilty because only searches
(warrantless or otherwise) of the guilty find incriminating evidence.

The excusionary rule refers to evidence found without a warrant, not
without a warning.  You're confusing it with the Miranda warning,
without which confessions are inadmissable.

There are exceptions to both.  For instance searches of places with no
expectation of privacy have never required warrants, nor have searches
for which the owner of the premises gave persmission, nor searches
conducted in certain emergencies.  Confessions made by someone not in
custody have never required Miranda warnings.  And there are exceptions
to these exceptions, etc.

> If the evidence cannot be used in court it cannot "harm" the innocent.

It certainly can, indirectly.  Jurors are aware that incriminating
evidence often can't be used.  Not just results of illegal searches,
but also un-Mirandized confessions, prior convictions for similar
crimes, and flunking a polygraph test.  So they often assume that what
appears to be a weak case isn't really, if they only knew all the
facts that the prosecutors know but aren't allowed to share.  Yes,
I know jurors aren't supposed to do that.

Also, letting people known to be guilty go free on technicalities
increases the crime rate, which decreases tolerance of crime, and of
suspected criminals.  Plenty of people are just plain fed up, and
likely to convict anyone on the flimsiest of evidence.

I think jurors should be shown ALL the evidence, positive and
negative.  Almost nothing should be banned to either side.
--
Keith F. Lynch -- kfl@clark.net -- http://www.clark.net/pub/kfl/
I always welcome replies to my e-mail, postings, and web pages, but
unsolicited bulk e-mail sent to thousands of randomly collected
addresses is not acceptable, and I do complain to the spammer's ISP.