Jury Expert: Timely focus on false confessions

"Why on earth would anyone, anywhere, ever confess to a serious crime they did not commit? Especially something like murder? Seriously? Mock jurors find this hard to believe." In the latest issue of the Jury Expert, two trial consultants present the research on why people falsely confess and the cascade of errors that follow a false confession.

The release of the documentary The Central Park Five makes Douglas Keene and Rita Handrich's overview, "Only the Guilty Would Confess to Crimes": Understanding the Mystery of False Confessions, especially timely. The consultants provide a concise summary of current research findings and references, making it an excellent resource for criminal attorneys, investigators, judges, law enforcement officials, students of law and public policy and, of course, forensic professionals. It is followed by commentaries from widely renowned false confession expert Saul Kassin and three others, including your blogger.

My essay, "Disputed confessions: The many hats of the expert witness," may be of special interest to this blog's readers, as it details the role of the expert witness in cases involving disputed confessions. I discuss the distinctions between "pure" academic research and clinical assessment, and the role of the forensic expert in evaluating both psychological vulnerabilities that might contribute to an unreliable confession and the separate issue of a suspect's comprehension of the mandatory Miranda rights waiver.

In an accompanying feature in the November/December issue, jury consultant Diane Wiley of the National Jury Project provides a supplemental jury questionnaire covering the issues attorneys need to address in a false confessions case.

And there's even more on the confessions topic in the new issue, hot off the press today: Rita Handrich reviews the 2010 volume, Police Interrogations and False Confessions: Current Research, Practice, and Policy Recommendations, edited by well-known scholars Daniel Lassiter and Christian Meissner.

The main feature (with accompanying essays) is HERE; my essay is HERE, and the entire current issue and back issues of the always-excellent Jury Expert can be accessed HERE. For you tweeters, the Jury Expert's Twitter feed is HERE.

Another one bites the dust: Hollow SVP prosecution no match for jurors' common sense

15 minutes.

After a five-week trial, that's how long it took a jury in a rural Northern California county to decide that an openly gay man who had served two years in prison for a forcible oral copulation of an acquaintance back in 2003 did not merit civil commitment as a sexually violent predator.

The prosecution's case featured a lone government psychologist whose opinion rested on a hollow combination of homophobia, bogus psychiatric diagnoses and trumped-up risk estimates. The psychologist cited archaic (and discredited) Freudian theory to claim that the ex-offender's crime at age 23 was evidence of an "oral incorporation" fixation caused by a domineering mother and an absent biological father. As a legal basis for civil commitment, he cited the bogus disorder of "paraphilia not otherwise specified-nonconsent,” and he used the Static-99R actuarial tool to present a highly inflated estimate of risk.

Testifying for the defense were four psychologists, including two retained by the defense, a government evaluator who had changed her mind (or "flipped," in the current parlance) and the man's treating psychologist at Coalinga State Hospital, who testified in no uncertain terms that "Mr. Smith," as I will call him, is neither mentally disordered nor likely to reoffend.

The defense team had barely left the courthouse when the court clerk summoned them back, saying the jury had reached a verdict. Their astonishingly fast decision hints that the jurors agreed that this case was an egregious example of overzealous prosecution and a waste of their valuable time.

Prior to being screened for possible civil commitment, Mr. Smith had been on parole in the community for 14 months without getting into any trouble whatsoever. Indeed, he was busy doing good works. His sexually violent predator screening stemmed from an entirely accidental parole violation connected with his charity work for a local gay rights organization. He had a special parole condition forbidding any contact with children. When a fellow member of the executive board brought his child to an awards ceremony, Mr. Smith was exposed to "incidental contact as one might have while shopping at a market," in the words of the parole hearing officer. Unfortunately for Mr. Smith, this was just one month after California voters enacted Jessica's Law, which allows for civil commitment of sex offenders who have only one qualifying victim rather than the previous minimum of two.

The prosecutor's strategy, as is typical in weak cases, was to hurl as many prejudicial, pseudoscientific labels as possible in Mr. Smith's direction, and hope a few might stick and scare jurors into voting for civil commitment: Psychopath, antisocial, homosexual, paraphilic, high risk, etc.

While licensed as a psychologist, the government's expert had not done what clinical psychologists are trained to do: Psychological testing, individualized case formulation, etc. Rather, as he boldly admitted on the witness stand, he relied on an assistant to cull through Mr. Smith's hospital records and pull out negative behavioral reports for him to review. Wow! Can you spell B-I-A-S?

In my testimony, which stretched over the course of three days, I stressed that Mr. Smith was neither sexually deviant nor likely to reoffend. His risk of sexual reoffense, I testified, was no greater than that of any other garden-variety sex offender. (The base rate of sexual recidivism among convicted sex offenders in California -- similar to the rest of the United States -- hovers around 6 percent or less.) I explained how growing up gay in a homophobic family and community causes sexual identity confusion that can lead to sexual acting out and other delinquent behavior in adolescence and early adulthood, and how Mr. Smith had changed as he matured and accepted his sexuality. I further debunked the accuracy of the Static-99R "actuarial" risk estimates assigned in this case, and the pretextually applied diagnoses of "paraphilia not otherwise specified-nonconsent" (which I've blogged about repeatedly) and antisocial personality disorder, a red herring that was invoked despite Mr. Smith's exceptionally good conduct in the community and while in prison.

Stacking the deck

The prosecutor tried to stack the deck by striking from the jury all gay people or those who admitted having relatives or close friends who are gay; he also challenged those with advanced educational degrees. I guess he thought it would be easier to pull the wool over the eyes of an uneducated jury. It just goes to show that times have changed: Even in a rural county, antigay discrimination is no longer considered acceptable, and jurors don't need PhD's to recognize bias and pseudoscience when they hear it.  

The verdict was likely a bitter-sweet moment for Mr. Smith, who had spent more than four years incarcerated at Coalinga awaiting trial. Luckily, he has close friends to stay with while getting on his feet.

This is my third SVP case in a row that evaporated when finally exposed to the light of day. Like Mr. Smith's case, one of the other two also featured prominent antigay bias; the other targeted an immigrant. In neither case were the men either pedophiles or rapists.

I suppose I should feel pleased to see such gross miscarriages of justice thwarted. Instead, I find myself horrified by the unfettered power wielded by rogue psychologists, assigned to a case by luck of the draw. Whereas many government evaluators reserve "positive" findings for the rare sex offenders who are truly deviant and at high risk to reoffend, others are just hacks who are raking in obscene amounts of public funds while making little effort to truly understand these men, their motivations, their circumstances, or their pathways to desistance.

Especially frightening is the unconscious bias that creeps into SVP prosecutions. The constructs of "mental disorder" and "risk for reoffense" are malleable, lending themselves to use as pretextual weapons of prejudice wielded against gay men, racial minorities (especially African American men) and immigrants.

Clearly, people shouldn't get away with sexual misconduct. But none of these men had. All had pleaded guilty and served their time, only to be ambushed at the end of their prison terms with misguided efforts to indefinitely detain them based on purported future risk.

As it turned out, each case was about as solid as a house of cards. It didn't take gale-force winds like Hurricane Sandy's to flatten them.

Evaluators flipping like pancakes

The "flipping" of government evaluators illustrated this weak foundation. In two of the three cases, after reading the more thorough and individualized reports of the defense-retained experts, government psychologists abruptly changed their minds and decided that their previously proffered diagnoses of "paraphilia not otherwise-nonconsent" were invalid.

On the one hand, I applaud the openness and ethical backbone such a change of heart signals. But these "flips" also demonstrate the whimsical, nonscientific nature of the commitment process. The longer I work in these trenches, the more I realize that the random assignment of evaluators and attorneys (on both sides) exerts as much influence on the outcome as does the true level of future risk to the community that an ex-offender poses.

Indeed, the real reason Mr. Smith -- clearly not a sexual predator to anyone with a whit of commons sense -- was taken to trial, at a total cost to the citizenry of hundreds of thousands of dollars, was not because of his high risk, but because of a rigid prosecutor who was blind to the writing on the wall.

In contrast, the government dismissed the other two cases (one in the Midwest and one in the South) on the eve of trial. One case involved a gay man who had a brief sexual interlude with a teenage male relative; the other involved an immigrant who had gone on two dates with an underage teen girl he met on an online dating site (his misconduct never went beyond petting). Both had served substantial prison terms. But, again, garden-variety sex offenders, not the depraved, sex-crazed monsters likely envisioned by jurors when they are told they will be deciding a "sexually violent predator" case.

Bottom line: Should a random clinical psychologist, earning hundreds of thousands of dollars a year churning out boilerplate pseudoscientific garbage, be allowed to decide the fates of others?

At least in this one case, 12 discerning and conscientious jurors answered that question with a resounding "NO."


ON OTHER,TOTALLY UNRELATED NOTES: If you're looking for an intelligent movie in theaters now (always a challenging search), ARGO earns a qualified thumbs-up from me; my review is HERE. (If you find the review helpful, please click on "yes" at the bottom.) I've also just finished reading a thoroughly researched and well-written cultural biography of John Brown, Midnight Rising, that positions his raid on Harper's Ferry as a seminal moment in the lead-up to the Civil War. Tony Horwitz previously wrote Conservatives in the Attic, which -- as the descendant of Southerners -- I found spot-on.

The taint of a false confession

Ripple effects bias parties, contaminate "independent" evidence 

Michael Crowe, age 14, falsely confessing to murdering his sister

With the recent tidal wave of scholarly research into false confessions, informed forensic psychologists are by now tuned in to the phenomenon. We know, for example, that they played a role in one out of four DNA exoneration cases. We are aware of their compelling nature, and can cite examples such as the Central Park Jogger case in which they produced profound miscarriages of justice.

But let's take it one step further. What if, once police elicit a false confession from a suspect, it contaminates everything and everyone in touches -- from the prosecutor, the judge, and even the suspect's own attorney all the way to the fingerprint identification and even, perhaps, the DNA match?

That is the troubling thesis raised by Saul Kassin, a pioneer in the psychological study of false confessions, in an article in the current issue of the American Psychologist.

  

"Corroboration inflation"

Research shows us that such a contaminating effect is plausible. For example:

• Fingerprint experts who were told the suspect had confessed were more likely to change their opinion and make an incorrect match, as compared with experts who were told the suspect was already in custody at the time of the crime. (1)

• Polygraph examiners were significantly more likely to opine that an inconclusive chart showed deception when they were told the suspect had confessed. (2)

Bizarre case of multiple false confessions and prosecutions

Such findings may extend to other forensic science that requires subjective judgments, Kassin argues, including comparative analyses of ballistics, hair and fiber, shoeprints, tire tracks, handwriting and even DNA. Although CSI-style TV shows portray such evidence as infallible, a 2009 study by the National Academy of Sciences found widespread errors and bias in the collection and analysis of evidence.

That's not to mention egregious cases of intentional fraud in forensic laboratories that pop up with alarming regularity, such as a case in Boston, Massachusetts currently garnering headlines. There, a lab worker with allegedly bogus credentials as a chemist intentionally fabricated positive drug test results. Over a 9-year period, Annie Dookhan tested an estimated 60,000 drug samples confiscated from about 34,000 criminal defendants. Dookhan reportedly admitted writing reports listing samples as positive for illicit drugs even though she had never tested them; sometimes, "if a sample tested negative, she would take known cocaine from another sample and add it to the negative sample to make it test positive for cocaine," according to the Huffington Post's account. Dookhan has been arrested and the lab is temporarily shuttered.

Kassin points to an archival study conducted by he and two colleagues which found that, in DNA exoneration cases, false confessions were often accompanied by other errors, including improper forensic science, mistaken eyewitness identifications and/or the testimony of dishonest informants. Importantly, the confession preceded the other case errors in two-thirds of cases, suggesting it may have had a corrupting influence.

Such findings suggest that the legal system's longstanding assumption that independent sources of evidence provide confirmation of a suspect’s guilt may be wrong. Rather, Kassin writes, "confessions can spawn other incriminating evidence, creating an illusion of corroboration":

Amanda Knox, wrongly convicted in Italy

"Supported by 100-plus years of basic psychology and the research reviewed herein, confession-induced corroboration inflation challenges a core premise in law. Both pretrial corroboration requirements and a harmless error analysis on appeal rest on the assumption that the corroborating evidence on record is nonredundant and independent of the confession. It now appears that this assumption is often incorrect, that the other evidence may be tainted by confession, and that the appearances of corroboration at pretrial and the sufficiency of evidence on appeal may be more illusory than real."

"Hollywood productions"

Especially pernicious is the frequent situation in which police -- either intentionally or inadvertently -- feed an innocent suspect information that only a guilty party should know. Taking on the aura of a carefully scripted movie production with the confession as the central plot device, the confession is carefully drawn out of the suspect over hours and even days until in its final version it includes vivid details and plausible motivations.

Such an account proves virtually impossible for a judge or a jury to discount. The scripted confession thus becomes the be-all, end-all of the case, contaminating the minds of all who are exposed to it:

• POLICE close the investigation, deem the case solved, and overlook exculpatory information, even when (as Richard Leo and his colleagues have shown) the confession is internally inconsistent or contradicted by independent evidence.

• PROSECUTORS stubbornly cling to false confession cases, refusing to admit the possibility of their falsity even when DNA testing unequivocally excludes the confessor. (The New York Times Magazine has more on this phenomenon, describing -- in an article titled "The prosecution's case against DNA" -- the improbable arguments manufactured by prosecutors to explain away negative DNA findings.)

• Perhaps most dangerously, even DEFENSE ATTORNEYS succumb to the allure. Individuals who falsely confess are much more likely to be pressured into accepting a guilty plea, which bars future appeals. In an archival study conducted by Kassin and a colleague of 273 DNA exoneration cases, those based on false confessions were three times as likely to involve bad lawyering.

Matias Reyes, the actual rapist
in the Central Park Five jogger
wrongful conviction case

"Taken together," Kassin concludes, "research suggests that judges, juries, and others are doomed to believe the false confessions of innocent people not only because the phenomenon strongly violates common sense but because of corroboration inflation -- a tendency for confessions to produce an illusion of support from other evidence."

All of this suggests that it is essential for courts to allow the testimony of forensic experts who can explain the mechanisms of false confessions, including both what types of police practices are more likely to generate them, and what types of individual vulnerabilities make a person especially prone to cave in under such pressure.

More broadly, this line of analysis suggests the need for changes in police practices, for example an end to the routine practice of lying to suspects about incriminating evidence, and greater government oversight and regulation of police interrogations. Moreover, safeguards on the analysis of supposedly independent evidence, such as evidence technicians being blind to a suspect's confession status, must be implemented in order to ensure that corroborating evidence truly is independent.

The article is: "Why confessions trump innocence." Members of the American Psychological Association may download it for free as part of their member benefits; others may request a copy from the author (HERE).

Related blog posts:

• Police interrogations: AP-LS issues landmark white paper (March 14, 2010)

• Clueless'science' (guest essay by Jennifer L. Mnookin, Feb. 19, 2009)

• Historical review of false confessions (Nov. 8, 2010)

• Damning reconstruction of notorious false confession case of Central Park Five (March 29, 2012)

• Canada: How false confessions occur (Nov. 27, 2007)

• New study on background factors in false confessions (Aug. 25, 2007)

• Guest report: Interrogations and Confessions Conference, El Paso, Texas (Oct. 4, 2007)

For a complete list of my many other posts on the topic of confessions and interrogations, click HERE.

References:

(1)   Dror, I. E., and Charlton, D. (2006). Why experts make errors. Journal of Forensic Identification, 56, 600–616.

(2)   Elaad, E., Ginton, A., and Ben-Shakhar, G. (1994). The effects of prior expectations and outcome knowledge on polygraph examiners' decisions. Journal of Behavioral Decision Making, 7, 279–292.

Hat tip: Tim Derning

Juror’s bad dream becomes defense nightmare

What would you do if you were defending a man accused of bludgeoning someone to death with a baseball bat, and a juror disclosed having a nightmare in which the defendant chased her around with a baseball bat?

You might request that the juror be dismissed.

That’s what happened this week in a murder trial St. Lawrence County, New York.

But the judge denied the defense request, despite a plea from the juror's family that she is emotionally overwhelmed by the case. Besides her nightmare, the juror also told the court that she started crying when she saw her father sitting in a recliner that reminded her of the chair in which the dead man was found.

The ruling shocked the defendant.

"I just about fell over," defendant Wayne T. Oxley Jr told a reporter. "I was pretty shocked she stayed on the jury. I kind of lost my breath."

The prosecuting attorney said it wouldn't be fair to discharge a juror just because of what she dreamed. "Dreams are dreams, you can't make them not happen," said the attorney.

Prominent forensic psychologist Saul Kassin of the John Jay College of Criminal Justice disagreed.

"It's clear she has formed a negative emotional opinion," Kassin told a reporter from the Watertown Daily Times. "If I were on the defense team, that would make me nervous. People often have difficulty separating reality from fantasy."

This is Oxley's third trial. The first ended with a conviction for second-degree murder, later overturned on appeal. A retrial ended in a hung jury. If Oxley is convicted and successfully appeals based on the juror's emotional bias, Judge Jerome J. Richards's ruling could end up a nightmare for him as well.

Appellate court upholds exclusion of SPECT evidence

Yerba Buena Island, San Francisco Bay

On May 22, 2002, the body of Juliette Williamson was found washed up on Yerba Buena Island in the San Francisco Bay. Williamson and her long-time partner Bruce Brooks were well-known street performers known as the Chicago Brother and Sister Blues Band. For years, they had lived together in a purple school bus parked under a freeway.

Within days of Williamson's disappearance, Brooks gave three confessions to friends. He provided graphic details of how he bludgeoned her to death with a hammer after a drunken quarrel. He even took one friend to the location where he had tossed her body into the Bay; there, police later recovered blood samples that matched Williamson's DNA.

The couple’s 16-year relationship had always been tumultuous, but it was deteriorating in the weeks before the killing. Brooks had resumed smoking crack cocaine and had openly threatened to kill Williamson if she left him, according to trial testimony.

Bruce Brooks. Photo credit: M. Macer, S.F. Chronicle

By the time he went to trial six years later, Brooks's story had changed. He testified that Williamson attacked him and knocked him "silly." He saw a fluorescent number three in his mind; the next thing he knew he was dropping Williamson's body over the bridge to bury her at sea. He had no recollection of killing her, but figured he must have.

A defense-retained neuropsychologist, Myla Young, testified that Brooks had frontal lobe damage that might cause him to begin a repetitive act like hitting and not stop until worn out. The impairment also made him prone to amnesia, she said.

But the jury wasn't buying. After three days of deliberations, jurors convicted Brooks of second-degree murder. He was sentenced to 15 years to life.

Appeal: Unfair to exclude SPECT evidence

Brooks appealed, citing the trial judge's exclusion of Single Photon Emission Computed Tomography (SPECT) evidence. He had hoped to introduce the colorful brain scans to convince the jury he had organic brain damage that made it impossible for him to premeditate a murder, or even form a conscious intent to kill. Psychiatrist Daniel Amen was prepared to testify that Brooks' scan, which measures blood flow to certain regions of the brain, looked "very abnormal."

San Francisco trial judge Cindy Lee excluded the SPECT testimony based on concerns about both the method and the messenger.

Daniel Amen promotes his Amen Clinics

Under California's Kelly-Frye standard, for scientific evidence to be admissible in a criminal case, there must be proof that the technique is considered reliable in the scientific community and that the witness is a qualified expert who used correct scientific procedures. The party seeking to introduce the evidence has the burden of proving its admissibility by a preponderance of the evidence.

Regarding the method, the judge ruled that research has not established that SPECT scans can accurately determine cognitive impairment, much less impairment so severe as to preclude the requisite mental states for premeditated murder. While the scans were "pretty glitzy" and "high tech," their colors lacked meaning and had a high potential to confuse the jury, she said.

As to the messenger, the judge had "a 'considerable question' ... as to whether [Amen] is an independent and unbiased expert and truly represents a cross-section of the relevant scientific community," according to a just-issued appellate ruling.

The First District Court of Appeal upheld the trial judge's ruling, endorsing her concerns about both the method and the messenger.

The appellate justices were unable to find any published appellate decision on the issue of whether SPECT evidence is admissible in a criminal trial to support a theory that a defendant's ability to form a specific intent was impaired by organic brain damage. So they conducted their own independent review of the scientific status of SPECT evidence. They were ultimately under-impressed.

[W]e agree with the trial court that defendant failed to establish that SPECT was generally accepted by the scientific community as showing brain injuries that were relevant to the defense theory that he did not form the intent necessary to commit murder. Defendant did not establish a generally accepted correlation between blood flow to a particular part of the brain and any particular behavior…. [A]s the trial court correctly summarized the testimony, "[T]here’s a lack of any testimony that there’s any quantitative percentage of blood flow, specific cognitive functions or other factors that will be impaired or even affected."

Regarding the messenger, the appellate justices said it was within the trial judge's discretion to raise "serious questions about Amen’s qualifications to testify as an expert witness. The court doubted that he could be independent and unbiased in light of his long engagement in significant entrepreneurship activities regarding SPECT via the Amen Clinics and activities as a proponent of the utility of SPECT scan imaging."

Amen's methods questioned

Judge Lee and the appellate panel were not alone in viewing Amen's activities with suspicion.

Amen, a graduate of the now-defunct Oral Roberts University School of Medicine, has said he was "led by God to pursue this work." And the missionary zeal with which he promotes SPECT for everything from depression and anxiety to aggression and drug abuse has raised concerns among other medical professionals.

In 2005, Amen's unconventional treatments had caught the attention of Quackwatch, an international network dedicated to exposing medical "frauds, myths, fads, fallacies, and misconduct." Three years later, Salon ran a piece by neurologist Robert Burton, criticizing PBS for running Amen's "self-produced infomercial" touting his unproven intervention for Alzheimer's disease:

It’s hard to dismiss the religious undertones of Amen’s work…. And yet Amen’s sense of calling hasn't led him to undertake the high-quality clinical investigations that would lend scientific credence to his claims…. Amen states that he has read more than 40,000 SPECT scans and holds himself up as a world expert. But a brief quote from his TV special quickly reveals a very peculiar method of determining what constitutes a normal SPECT scan…. Using Amen’s figures from his TV program, only 3 percent of those he has studied have been interpreted by himself and his staff as being normal. Put another way, 97 percent of patients who attend Amen’s clinic can expect to be told that their SPECT brain scan is abnormal.

But the controversies surrounding neuroimaging in court go far beyond those swirling around Amen and his SPECT scans. Echoing the trial judge's concerns in the Brooks case, the UK Royal Society just this week warned that jurors may be far too impressed with brain images, not recognizing their limited applicability to real-world legal questions.

POSTSCRIPT: On Feb. 29, 2012, the California Supreme Court denied review of the case. 

Free access to forensic articles

The Journal of Forensic Sciences, published by the American Academy of Forensic Sciences, is offering free access to select articles, including several of potential interest to this blog’s audience. Click on any of the below titles to read (and/or download) the full article.

The CSI Effect and the Canadian and the Australian Jury

By Janne A. Holmgren and Judith Fordham 

Abstract:  Television shows, such as CBS's CSI and its spin-offs CSI: Miami; CSI: Las Vegas; and CSI: New York, have sparked the imagination of thousands of viewers who want to become forensic scientists. The shows' fictional portrayals of crime scene investigations have prompted fears that jurors will demand DNA and other forensic evidence before they will convict, and have unrealistic expectations of that evidence. This has been dubbed the "CSI effect." This phenomenon was explored using results from a Canadian study based on 605 surveys of Canadian college students who would be considered jury-eligible and Australian quantitative and qualitative findings from a study that surveyed and interviewed real posttrial jurors. Information about the way jurors deal with forensic evidence in the context of other evidence and feedback about the way in which understanding such evidence could be increased were gained from both these studies. The comparison provides insights into the knowledge base of jurors, permitting adaptation of methods of presenting forensic information by lawyers and experts in court, based on evidence rather than folklore. While the Canadian juror data showed statistically significant findings that jurors are clearly influenced in their treatment of some forensic evidence by their television-viewing habits, reassuringly, no support was found in either study for the operation of a detrimental CSI effect as defined above. In the Australian study, in fact, support was found for the proposition that jurors assess forensic evidence in a balanced and thoughtful manner.

Understanding Juror Perceptions of Forensic Evidence: Investigating the Impact of Case Context on Perceptions of Forensic Evidence Strength

by Lisa L. Smith, Ray Bull and Robyn Holliday 

Abstract:  The most widely accepted model of juror decision making acknowledges the importance of both the case-specific information presented in the courtroom, as well as the prior general knowledge and beliefs held by each juror. The studies presented in this paper investigated whether mock jurors could differentiate between evidence of varying strengths in the absence of case information and then followed on to determine the influence that case context (and therefore the story model) has on judgments made about the strength of forensic DNA evidence. The results illustrated that mock jurors correctly identified various strengths of evidence when it was not presented with case information; however, the perceived strength of evidence was significantly inflated when presented in the context of a criminal case, particularly when the evidence was of a weak or ambiguous standard. These findings are discussed in relation to the story model, and the potential implications for real juries.

Forensic Identification Science Evidence Since Daubert: Part II—Judicial Reasoning in Decisions to Exclude Forensic Identification Evidence on Grounds of Reliability

by Mark Page, Jane Taylor and Matt Blenkin 

Abstract:  Many studies regarding the legal status of forensic science have relied on the U.S. Supreme Court's mandate in Daubert v. Merrell Dow Pharmaceuticals Inc., and its progeny in order to make subsequent recommendations or rebuttals. This paper focuses on a more pragmatic approach to analyzing forensic science’s immediate deficiencies by considering a qualitative analysis of actual judicial reasoning where forensic identification evidence has been excluded on reliability grounds since the Daubert precedent. Reliance on general acceptance is becoming insufficient as proof of the admissibility of forensic evidence. The citation of unfounded statistics, error rates and certainties, a failure to document the analytical process or follow standardized procedures, and the existence of observe bias represent some of the concerns that have lead to the exclusion or limitation of forensic identification evidence. Analysis of these reasons may serve to refocus forensic practitioners’ testimony, resources, and research toward rectifying shortfalls in these areas.

Additional free articles from the Journal of Forensic Sciences on a variety of forensic topics may be found HERE.

"Kids-for-cash" judge gets 28-year prison term

Mother of a suicide victim confronts crooked judge

In what may be the longest federal prison sentence ever given in a U.S. political corruption case, a juvenile judge who earned millions of dollars by sending kids to private jails has received a 28-year sentence. A second judge, Michael Conahan, has not yet been sentenced.

As I blogged about in 2009 ("Evil lurked in Luzerne County"), Pennsylvania Judge Mark Ciaverella Jr. got kickbacks for sending children to the private lock-up. He even shut down the public juvenile hall so all minors would have to go to the new detention center. He sold children down the river for crimes as minor as writing a prank note or possessing drug paraphernalia.

Investigation of the so-called "kids for cash" scheme led to 4,000 juvenile convictions being overturned. Although 28 years sounds like a long time, if you do the math it's less than three days per juvenile case.

Pornography sentence unconstitutionally cruel, judge rules

A must-read case for forensic psychologists  

"C.R." grew up in a chaotic, highly conflictual home. He was immature, socially klutzy, anxious and depressed. Friends introduced him to online pornography, readily accessible for free via peer-to-peer file sharing. He took to smoking marijuana and escaping into sexual fantasy. Between the ages of 15 and 19, he downloaded pornography, much of it involving boys ages 10-12, and shared files with other users.

When he was 19 years old, the FBI ensnared him in a sting and the world came crashing down. Under federal law, “C.R.” faced a statutory minimum of five years in prison.

Until Judge Jack B. Weinstein intervened, ruling that the 5-year minimum is unconstitutional in C.R.’s case, due to the youth’s age and immaturity.

The ruling is part of a crusade by Weinstein, one of the United States' most accomplished and respected jurists, against what he calls “the unnecessary cruelty of the law.” Previously, the 89-year-old federal judge in the Eastern District of New York led a similar campaign against rigid drug sentencing. 

Weinstein’s 401-page tome in United States v. C.R. should be on the required reading list of every forensic psychologist, tackling as it does many of the front-burner issues and controversies currently facing the field:

• Adolescent brain development and immaturity
• Risk for hands-on offending among pornography offenders
• The misuse of risk assessment instruments (including the circular reasoning involved in assigning an offender to the “high risk” group on the Static-99)
• The bogus disorder of “hebephilia” that you've heard about here
• Morality and prejudice masquerading as science

Before sentencing C.R., Weinstein ordered an evidentiary hearing that would enable him to determine how best to protect the community while not unnecessarily destroying the young man’s life. Well-known experts including Robert Prentky and Meg Kaplan testified about C.R.’s low risk of recidivism, the likelihood he would face abuse in prison, and the impact of adolescent immaturity on youths’ judgment.They are quoted at length, as is a prosecution psychologist who found C.R. to be at high risk based in part upon factually erroneous information (that C.R. had visited gay "glory holes").

Ultimately, the judge still imposed a prison sentence, but cut it in half to 30 months. A longer term "lacks any legitimate penological justification" and violates the 8th Amendment’s bar on cruel and unusual punishment, he wrote:

This case illustrates some of the troubling problems in sentencing adolescents who download child pornography on a file-sharing computer service. Posed is the question: To protect the public and the abused children who are shown in a sexually explicit manner in computer images, do we need to destroy defendants like C.R.? ... C.R. should be prepared to assume a useful law-abiding life rather than one of a broken and dangerous, ex-prisoner deviant. Were it not for Congress‘s strongly expressed preference for incarceration in these cases, the court would have imposed a long term of supervised release with medical treatment outside of prison.

Weinstein echoed the reasoning of the U.S. Supreme Court in two recent back-to-back cases involving juveniles. One (Roper v Simmons) invalidated the death penalty for juveniles; the other (Graham v Florida) held that juveniles could not be sentenced to life without the possibility of parole for crimes other than homicide.

This is not Weinstein's first foray into the thicket of child pornography sentencing. Last year, he vacated the conviction of Pietro Polizzi on the grounds that the jury had a right to know what punishment a guilty verdict would produce. Several jurors told the judge they might not have convicted the married father of five had they known he would have gone to prison for at least five years.

"I don’t approve of child pornography, obviously,” Judge Weinstein told the New York Times at the time. But he also said he did not believe that those who merely view images, as opposed to producing or selling them, present a significant threat to children. “We’re destroying lives unnecessarily. At the most, they should be receiving treatment and supervision.”

Although Weinstein is more outspoken than some, an increasing number of judges are balking at giving pornography viewers longer prison terms than actual child molesters and rapists often get. “Across the country, an increasing number of federal judges [are] criticizing changes to sentencing laws that have effectively quadrupled their average prison term over the last decade,” noted the Times report.

In his erudite, data-rich dissection of pornography and risk, Weinstein cites everyone from Malcolm Gladwell to Alex Kotlowitz (long one of my favorite authors) and Laurence Steinberg, and to our very own forensic psychology colleagues John Monahan, Jennifer Skeem, and Charles Patrick Ewing (whose newest book is another must-read).

Weinstein, by the way, has had a fascinating and colorful career. He put himself through Brooklyn College by working on the docks in New York Harbor before forging multiple and overlapping careers as a teacher, lawyer, and public servant. Back in his early days of lawyering, he helped the NAACP with the landmark desegregation case of Brown v. Board of Education. As a jurist, he’s handled many of the biggest mass tort cases in the United States, involving Agent Orange, asbestos, tobacco, breast implants, DES, Zyprexa, and handguns. More on Judge Weinstein’s interesting life and career is HERE.

I have made the case of United States v. C.R. available for download HERE. Again, I recommend that you read it for yourself. It's a great primer, packed full of useful information and references -- many of them available online.

The curious story of 'a reasonable degree of professional certainty'

I recently had a strange experience: An opposing attorney made a motion to exclude my report in a legal case, because I had not written that I held my expressed opinions "to a reasonable degree of psychological certainty." The attorney who had retained me was forced to scramble to obtain a written declaration from me, stating that I did indeed hold my opinions to this level of certitude. I typically do not include this magic phrase in reports, finding it rather obtuse and, frankly, pompous-sounding. So, when my colleague Dr. Worthen expressed knowledge about the phrase, I prevailed upon him to write this guest post. 

Guest post by Mark D. Worthen, Psy.D.*

Expert witnesses who testify based on their medical, psychological, or other scientific training and expertise, are often asked to express their opinions "to a reasonable degree of medical (or psychological or scientific) certainty." But what does this phrase mean and why is it used in legal proceedings?

Before exploring what the phrase means, let's first examine why the phrase is used in courts of law. As it turns out, the "reasonable degree of medical certainty" phrase developed almost by accident and has no clear rationale for its almost universal use. After conducting exhaustive research, law professor Jeff L. Lewin traces the origins of the phrase to Chicago, Illinois sometime between 1915 and 1930 [1]. Professor Lewin notes:

While the phrase was generated by the efforts of Illinois attorneys to comply with legal doctrine, litigators in other states adopted this curious phrase through unreflective imitation of models provided in a best-selling manual on trial technique. The phrase was then incorporated into legal doctrine through the judiciary's uncritical acceptance of this attorney usage. The judicial response to the phrase thus exemplifies the generation of legal rules by chance instead of by deliberate judicial choice.

In addition to lacking a clear rationale for its usage, the "reasonable degree of medical certainty" phrase also lacks a consistent definition.

Many professionals who use the phrase in their testimony have their own understandings of the phrase's meaning. For example, some assume that the phrase means that there is a preponderance of the evidence in support of their opinion, or that their opinion is "more likely than not" to be correct. Other professionals require more evidence: They assume that the phrase means that they possess "clear and convincing" evidence for their opinion or even that their opinion is accurate "beyond a reasonable doubt." On the other hand, most testifying experts probably do not have a pre-determined definition for the phrase and utter it simply because they know it is expected.

Although the phrase is not routinely used in the practice of medicine, psychology, or other scientific disciplines (have you ever seen a journal article that concluded, "To a reasonable degree of psychological certainty" we found that X caused Y?), textbooks written to provide guidance to professionals who testify in legal proceedings have offered various definitions. For example, the authors of Effective Medical Testifying: A Handbook for Physicians assert that the phrase means "more likely than not", i.e., 51% probability or more.

Black's Law Dictionary defines the phrase similarly: “A standard requiring a showing that the injury was more likely than not caused by a particular stimulus, based on the general consensus of recognized medical thought.”

However, courts have not always agreed with this definition. For example, the Superior Court of Pennsylvania in Griffen v. University of Pittsburgh ruled that a doctor who indicated that there was a 51% chance that a certain action caused an injury did not provide a sufficient basis for testifying to a reasonable degree of medical certainty. In declaring that 51% certainty was not certainty for the purposes of the law, the Court did not indicate what percentage of certainty is required.

In other cases, it seems that the courts don't care how confident an expert may be about his or her opinion. What matters is that they use the "magic phrase" during their testimony. For example, in a Missouri case:

... a medical doctor testified that he was ninety percent certain as to the causality of a condition. See Bertram v. Wunning, 385 S.W.2d 803, 807 (Mo. Ct. App. 1965), appeal after remand, 417 S.W.2d 120 (Mo. Ct. App. 1967). However, despite giving this high probability, he later retreated when asked to testify as to causation of the condition with “reasonable medical certainty.” In the end, notwithstanding the strong and “practically certain” testimony of the doctor, the Missouri court found the testimony to be insufficient because it lacked the “reasonable certainty” stamp of approval. [2]

Frustration with the inexactness of the phrase has led some to call for a clear-cut, agreed-upon definition.

The American Law Institute (ALI) declared, in its Restatement (Third) of Torts: Liability for Physical and Emotional Harm (§ 28, Comment e, 2010), that the phrase should be specifically defined to mean that an expert's opinion is "more likely than not" accurate. The ALI reasoned that the standard for "reasonable degree of medical certainty" should not exceed the standard of proof considered by juries in tort cases, i.e., a preponderance of the evidence.

Attorneys James M. Beck and Mark Herrmann argue that the ALI standard "dumbs down" expert witness testimony and that the reasons for the proposed changes are faulty in many respects. They argue that the use of "reasonable medical certainty" should be retained and that its meaning should come from the standards for decision-making commonly used in the expert's profession.

Attorney Nathan Schachtman also argues for continued use of the phrase:

Surely, however, the phrase is not semantically empty. “Certainty” has clear epistemic connotations and implications for the witness’s opinion, both in terms of his own state of mind, and in terms of the empirical support the witness has for his opinion in the form of reasonably relied upon data, and sound inferences to a reliable conclusion. Subjectively, the witness who utters the phrase acknowledges that he is not speculating and that he believes that his opinion satisfies professional standards for claims of knowledge. A witness who qualifies his opinion with these “magic words” communicates his willingness to put his professional reputation on the line, and to defend the opinion before his peers. Objectively, the phrase conveys the notion of reliable knowledge. To be sure, human beings may not enjoy “certainty” in their knowledge of empirical propositions, but the “reasonable” qualifier makes the entire phrase meaningful and important.

While the debate over the definition of the phrase and whether or not it should be used at all will no doubt continue, individual experts might rightly ask, "Well, what should I do if asked to give an opinion to a reasonable degree of professional certainty?"

Here are some suggestions:

1. Ask the attorney you're working with if he or she plans to use the phrase in his or her direct examination of you. If so, ensure that each of you understand what you mean by the phrase, so that you'll be ready in the event that opposing counsel or the court asks you to define what you mean by "reasonable professional certainty." It's unlikely that you will be asked to define the phrase but it's better to be prepared with an answer than to stumble and mumble.

2. Make sure that your definition comports with relevant case law in your jurisdiction. For example, in Pennsyvania, you would not want to say, "It means that it's more likely than not" (see above).

3. In terms of how to define the phrase, consider how your profession determines "reasonable certainty." For example, when do you consider an opinion certain enough to proceed with a given treatment (medicine or psychology) or to proceed with a certain construction plan (architecture or engineering)?

4. If you give a numerical representation of your confidence in your opinion, a savvy attorney might challenge you on your ability to determine your own level of confidence with accuracy, citing research on the overconfidence effect. Your best bet is to be familiar with this research and to err on the side of underestimating your confidence.

5. Better yet, avoid numerical representations of confidence and focus on the evidence for your opinion, rather than your confidence in your opinion. Think about it this way: Are jurors or judges more likely to be persuaded by explanation #1 or #2:

• Explanation #1: " 'Reasonable degree of psychological certainty' means that I am 75% sure of my opinion." 

• Explanation #2: " 'Reasonable degree of psychological certainty' means that I found clear and convincing evidence for my opinion."

6. Focusing on the evidence for your opinion is an important distinction because it redirects the trier of fact to the strenth of your argument, namely, the scientific methods and research evidence for your conclusions.

FOOTNOTES
 

1. The Genesis and Evolution of Legal Uncertainity About "Reasonable Medical Certainty," Maryland Law Review, 57, pp. 380-504, 1998.

2. From "An Enigmatic Degree of Medical Certainty" by Nelson Abbott and Landon Magnusson, Utah Bar Journal, July/August 2008 (Vol. 21 No. 4).

*Guest author Mark D. Worthen, Psy.D. is a clinical and forensic psychologist in Asheville, North Carolina. Visit him on the web at DrWorthen.net.

Special journal issue on psychology-law available for free!

A special issue of Current Directions in Psychological Science showcasing the latest psychological research applied to the legal system has received enormous interest. As a result, the editors and Sage Publications are making the full contents available free to the public through June 15, 2011. The articles cover a wide range of topics of interest to my readers, including competency, violence risk assessment, profiling, false confessions, eyewitness evidence, and jury decision making. You are encouraged to download these articles for later reading, and to freely share these links with colleagues. 

  FULL CONTENTS - CLICK ON BELOW LINKS TO DOWNLOAD  

Comment From the Editor
Randall W. Engle
 
Editor's Introduction: Special Issue on Psychology and Law
Ronald P. Fisher
 
Resolving the Offender "Profiling Equations" and the Emergence of an Investigative Psychology  
David V. Canter
 
Forensic Interviewing Aids: Do Props Help Children Answer Questions About Touching?
Debra Ann Poole, Maggie Bruck, and Margaret-Ellen Pipe
 
Interviewing Cooperative Witnesses
Ronald P. Fisher, Rebecca Milne, and Ray Bull
 
Current Issues and Advances in Misinformation Research
Steven J. Frenda, Rebecca M. Nichols, and Elizabeth F. Loftus
 
Eyewitness Identification
Neil Brewer and Gary L. Wells
 
Outsmarting the Liars: Toward a Cognitive Lie Detection Approach
Aldert Vrij, Pär Anders Granhag, Samantha Mann, and Sharon Leal
 
Suspect Interviews and False Confessions
Gisli H. Gudjonsson and John Pearse
 
Current Directions in Violence Risk Assessment
Jennifer L. Skeem and John Monahan
 
Future Directions in the Restoration of Competency to Stand Trial  
Patricia A. Zapf and Ronald Roesch
 
The Utility of Scientific Jury Selection: Still Murky After 30 Years
Joel D. Lieberman
 
Expert Psychological Testimony  
Brian L. Cutler and Margaret Bull Kovera
 
The Psychology of Trial Judging  
Neil Vidmar
 
Jury Decision Making: Implications For and From Psychology
Brian H. Bornstein and Edie Greene

Feed that hungry judge!

Photo credit: vistavision (Creative Commons)

Attorneys: If you want your client released from jail, make sure the judge just had a bite to eat.

That is the take-home message from a new study of experienced judges in Israel. Judges were much more likely to grant parole right after they had a lunch or snack break:

The team studied more than 1,000 parole decisions made by eight experienced judges in Israel over 50 days in a ten-month period. After a snack or lunch break, 65 percent of cases were granted parole. The rate of favorable rulings then fell gradually, sometimes [to] as low as zero, within each decision session and would return to 65 percent after a break.

Jonathan Levav, a professor at Columbia Business School who co-authored the study, said the more rulings a judge makes, the greater the tendency to “rule in favor of the status quo,” but a snack break can interrupt that tendency.

The current study left unsettled the issue of whether it was the food itself or the rest period that came with it that improved the judges' dispositions toward the hopeful convicts. Previous research has shown that both glucose and mental breaks can restore mental functioning.

The study adds to a growing body of evidence on psychological bias in judicial decision-making.

• The study, "Extraneous factors in judicial decisions" by Shai Danziger, Jonathan Levav and Liora Avnaim-Pesso, was just published online by the Proceedings of the National Academy of Sciences. A press release with additional information on the study and its authors is HERE.