Recent Study Suggests Older Jurors Are More Likely To Convict

I saw that the folks at The Jury Room blogged today about a study from 2012 examining how age affects one’s likelihood to convict. Unsurprisingly, the authors found that a jury with an average age over 50 were more likely to convict. From what I can tell, the researchers ran stats on actual juries and their verdicts…which necessarily precludes the ability to control for the “strength” of the prosecution’s case. But it seems worth a closer look. I’m traveling for Christmas so hopefully I’ll have some time to review the article and follow up in a few days with a full commentary.

Merry Christmas and Happy New Year in advance!

-Zachary Cloud

Do We Need Specialty Licenses in Law?

Houston Criminal Defense Lawyer Mark Bennett recently posted about a baby lawyer—less than 1 year practicing—who has taken a paying client’s death penalty case. In response, I think blogger Grits for Breakfast raises a fascinating and very accurate point: “Ironically, if the defendant were indigent, he’d be entitled to a better lawyer.”

This is true, Grits points out, because Texas rules governing appointment of counsel in capital cases require any court-appointed attorney taking a death penalty case to have significant experience. For the sake of precision, when I say “appointed” I mean that the defendant cannot afford to hire an attorney and so the court appoints one who is reimbursed by the government. The attorney might be a full-time public defender or a private lawyer who has agreed to do some court-appointed work.

In contrast to those who are appointed by the court, private attorneys don’t generally have to do anything beyond pass the bar in order to take whatever work they like. If a tax lawyer’s client wants to retain him to defend a criminal case, the tax lawyer is allowed to do that.

This is not a new problem. As the California Court of Appeal noted back in the 70s:

It is almost a truism that a criminal defendant would rather have the most inept private counsel than the most skilled and capable defender. Often the arraigning judge appoints the public defender only to watch in silent horror as the defendant’s family, having hocked the family jewels, hire a lawyer for him, sometimes a marginal misfit who is allowed to represent him only because of some ghastly mistake on the part of the Bar Examiners … .

People v. Huffman, 71 Cal. App. 3d 63, 72 n.2 (1977).

In reality, the problem here is one of backward-looking rules. A private counsel is not technically allowed to take a case he or she is not prepared to handle but the rules on this only punish after the fact rather than acting as a barrier to taking the case in the first place. I’m referring to the rules of professional conduct, which require the private attorney to “provide competent representation to a client.” In other words, having “the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.” See ABA Model Rule of Professional Conduct 1.1. The thing is, you can be punished by having your law license suspended or by disbarment if you violate the rules but the rules are not a barrier to entry. You can still take a paying client’s case without proving that you have the competence required by Rule 1.1. It’s only if you mess up and are reported that the rule comes into play—after the damage is done.

Now let’s consider attorneys who want to be court appointed to represent defendants who cannot pay. As an example, in Massachusetts, the Committee for Public Counsel Services (CPCS) requires any attorney to go through their training and be licensed to take court appointed work. In fact, CPCS has different levels of certification; some attorneys are only certified to take lower-level, district court cases whereas some attorneys are certified to take murder cases. Unless you are properly certified, you cannot just walk in to court and take a poor person’s criminal case.

Many states do this to varying degrees, as does the federal system. Especially in jurisdictions where the death penalty exists, there are barriers to taking a court-appointed case from the outset. This seems wholly appropriate. We want to ensure a minimum standard of quality. It is not enough to have a backward-looking rule that punishes those who were not up to the challenge—we need rules that prevent harm from occurring in the first place. That is called consumer protection…and it’s supposed to be the whole point of law licensing.

As far as I know, states don’t place such barriers to entry on private counsel with paying clients. I get the general notion that a person should be free to pay whichever lawyer he wants because it is, after all, his money and his decision. Indeed, I’m generally skeptical of regulation and trying to play “parent” to consumers. However, I acknowledge that there are some fields where consumers are not in the best position to size up the quality of their choice. As one example, regulations on prescription drugs are useful to me because I don’t have the time or expertise to separate the wheat from the chaff. Or look at the medical profession: not all doctors are qualified to perform heart surgery and I am not the best person to evaluate that.

We in the legal profession should employ some sort of barrier to entry that assures private counsel are minimally competent in the field of representation. Anybody who has graduated law school and passed the bar exam knows that this is not enough to prepare you for actual practice. The bar exam didn’t test my ability to argue bail, do a jury trial, represent a client who is facing immigration consequences, use a motion to suppress as a discovery tool, negotiate with prosecutors, maintain good records, deal with family members that want me to disclose confidential information, the list goes on… These are skills I’ve learned through internships and job training.  Nor do I have any doubt that I am woefully unprepared to develop an estate plan or advise someone on their liability under securities law. I could probably learn how to if I put my mind to it and was appropriately mentored…but the fact that I am a licensed attorney, by itself, does not make me qualified to do either.

The shame of a baby lawyer taking a capital case that he is not prepared for is merely a reflection on the larger problem that law licensing needs change. The very reason that we require people to pass the bar in order to practice is so that we can protect consumers. We’re not protecting them one bit, though. The bar exam does not test a person’s ability to competently practice in any particular area of law; it merely assess general knowledge across a wide variety of fields…and that’s not enough. State bar authorities should consider creating a system of specialty licensing. At a minimum, voluntary specialty licensing. This could help train new lawyers to actually practice in fields of interest and serve as a verification (a “seal of approval” if you will) that the particular lawyer is capable to do so. And indeed, a voluntary certification scheme might be enough to push consumers toward those attorneys who have taken the time to be so certified.

Or perhaps we should do as they do in England. There, barristers and solicitors must do pupilages and trainee stints with actual firms. These are basically lengthy apprenticeships that give the new lawyer on-the-job training on how to practice in a particular field or fields of law.

But we need to do something because the current system isn’t protecting consumers as intended. For God’s sake, a client just hired a brand new attorney to keep him from being executed. That shows a level of failure that goes beyond the client’s poor judgment.

-Zachary Cloud

“Stop & Search” in the UK

Quickly passing along a notable video and article from The Guardian. For those of us who followed the NYPD Stop & Frisk cases, this will be of particular interest. It’s a look at the equivalent being used by Metropolitan Police in London.

The video runs around 12:00 min but is worth watching.

Stop and search: police battle for control of London’s streets – video

Accompanying article

-Zachary Cloud

Some Interesting Criminal Procedure Cases Before the Supreme Court This Term

I’ve said it many times before, I’m a federal habeas corpus nut. And so, when the good folks at Habeas Corpus Blog previewed the upcoming SCOTUS term, I found myself a little disappointed that there wasn’t more habeas action at the top court. Burt v. Titlow poses some interesting questions and White v. Woodall has potential but that’s the extent of the cases currently scheduled for oral argument. So I went digging to see what other criminal procedure cases might be on the menu. Here are some cases worth following:

Criminal Procedure

First Amendment Issues

McCullen v. Coakley: Is Massachusetts’ “selective exclusion law” preventing people other than employees or agents of abortion clinics from standing on a public way or sidewalk within 35 feet of the clinic a violation of the First Amendment? [ARGUMENT NOT SCHEDULED YET]

Fourth Amendment Issues

Fernandez v. California: does a defendant have to personally present and objecting to law enforcement ask his co-tenant permission to enter the unit or does a previously stated objection suffice to bar consent? [ORAL ARGUMENT ON NOV 13, 2013]

Navarette v. California: If a law enforcement officer receives an anonymous tip regarding a drunken or reckless driver, is he required to corroborate the dangerous driving before stopping the vehicle? [ARGUMENT NOT SCHEDULED YET]

Fifth Amendment Issues

Kansas v. Cheever: Does it violate a defendant’s Fifth Amendment privilege against self-incrimination when, after the defendant introduces expert testimony that he lacked the required mental state to commit murder, the state rebuts with evidence from a court-ordered mental evaluation? [ARGUED OCT 16, 2013]

Civil Forfeiture / Right to Counsel

Kaley v. United States: If the government freezes an individual’s assets after indictment through an ex-parte restraining order and this prevents the defendant from retaining counsel of choice, do the Fifth and Sixth Amendments require a hearing on the underlying charges in which the defendant may challenge the sought restraining order? [ARGUED OCT 16, 2013]

Restitution

Paroline v. United States: What nexus between the defendant’s conduct and the victim’s harm must be shown in order for the victim to be entitled to restitution under 18 U.S.C. § 2259? [ARGUMENT NOT SCHEDULED YET]

Substantive Federal Criminal Law

Armed Career Criminal Act / Mens Rea

Rosemond v. United States: Does the offense of aiding and abetting the use of a firearm require intentional facilitation or encouragement as held by the First, Second, Third, Fifth, Seventh, Eighth, Ninth, and Eleventh circuits or is simple knowledge sufficient, as held by the Sixth, Tenth and DC circuits? [ARGUMENT ON NOV 12, 2013]

United States v. Castleman: Does the defendant’s Tennessee misdemeanor conviction for misdemeanor assault qualify as a misdemeanor crime of domestic violence under 922(g)(9)? [ARUGMENT NOT SCHEDULED YET]

I am particularly interested by McCullen, Fernandez, and Navarette and will be watching them carefully. It’s been a while since I followed any Supreme Court cases on this blog but I think the time is right. Indeed, I may post more on each case as the term progresses and arguments are held on each of them. That’s the docket for now; we’ll see if any new interesting cases are granted cert in the upcoming weeks and months.

-Zachary Cloud

Bronx Defenders Didn’t Invent Holistic Defense—We Did

Okay, I jest a little. I promise this won’t be a Boston v. New York thing. I’m actually a big fan of the way in which Bronx Defenders has integrated representation across criminal, housing, family, and other types of cases. Sometimes, however, I lament the notion that this is a “new” idea.

Before BxD, there was Neighborhood Defender Service of Harlem (“NDS”). Some may quibble over whether NDS fits into the same category as BxD but I think they share an important core: community-oriented defense.

And long before either organization came to be, a group of young ambitious lawyers in Boston created the Roxbury Defenders. A few months ago, Roderick Ireland, the Chief Justice of the Massachusetts Supreme Judicial Court, penned an article fondly reminiscing on his time working at the Roxbury Defenders. Reading his piece, I was struck by many of the features of community-oriented, holistic defense that the organization exhibited at its inception. The attorneys would hold regular know-your-rights meetings and even did a 1-hour radio show each week where local callers could seek answers to basic legal questions. Moreover, Roxbury Defenders recognized and implemented the importance of social services advocacy, drug treatment, prison outreach, and the like.

Things change over time. Roxbury Defenders still exists but now as a unit of the Committee for Public Counsel Services (“CPCS”). And yet the spirit and commitment to holistic defense is still going strong in our organization and I’m proud to be connected (even if indirectly) to that history.

Sometimes reading through the literature on public defense, you can get the impression that mixing civil and criminal legal services, doing community outreach, and going beyond narrow representation is a brand new invention. It truly is a great goal but there’s nothing new about it. It’s retro, baby. It’s retro.

-Zachary Cloud

Is That High Price Attorney Worth It?

Happy Labor Day! I was reflecting on today, laboring, and the like and decided to post some impromptu thoughts. I count myself among the lucky few in the legal profession who can say that I love the type of work that I do. I didn’t go to law school because I wanted to be rich or because I didn’t know what else to do with my life; I went because I wanted to be a trial lawyer. I also went because I wanted to fight for the voiceless, the little guy, the poor yearning to breath free…

I get to do that now and it’s a pure joy. Along the path to this point in my life, I’ve seen some things that have made me seriously question the wisdom of paying a lot for some private attorney—at least in the context of criminal defense. Let me pass along a couple of anecdotes that help explain.

1. Giving Up The Dismissal

During the summer between my second and third years of law school, I worked as a “student practitioner” at a public defender’s office. Essentially, under state law I was allowed to handle my own cases so long as a licensed attorney in the office supervised me.

One of the cases I got was an 18 year old man charged with possessing alcohol under age. This gentleman had no prior involvement with the criminal justice system and was doing well in school. Moreover, I had enough experience observing and negotiating with the prosecutor assigned to this client’s case that I knew it was highly likely we could negotiate a dismissal, perhaps in exchange for some minor community service requirement. This would be an excellent resolution because my client wouldn’t be pleading guilty or giving up any rights and state law would allow him to have the matter immediately expunged (a.k.a. erased). It’d be as if he’d never been arrested.

When I called up the client a few days before the first pre-trial conference, he told me that his parents had hired a private attorney to handle the case. I thanked him for letting me know and wished him well. A few days later, I was in court when his attorney resolved the case in a manner that was far less favorable. The client pleaded no contest, gave up his rights to trial, and essentially was placed on what amounts to unsupervised probation. His parents probably paid close to $1,000 for a worse outcome than I could have gotten their son for free.

2. A Self-Solving Problem

I was talking with someone who told me that members of their family had fallen on hard times. This person went on to explain that a member of their family had been charged with a fairly serious felony and other family members had spent a lot of money to hire an attorney to “take care of” the case. The case stemmed from a domestic violence charge.

I don’t know very many of the details but I have a fairly good feel for what happened. Domestic violence cases typically happen without other witnesses—only the alleged victim and defendant were present and know what happened. Indeed, many times alcohol or other substances consumed prevent anyone from knowing exactly what happened. Many prosecutors hate domestics because it’s incredibly common for the alleged victim to refuse to cooperate.

As a defense attorney, this opens up an easy way to prevail: the alleged victim will approach the defense team actively seeking to help the defendant or will tell a defense investigator that nothing happened. Now there’s a fifth amendment issue to work with because even if the alleged victim is forced to testify, (s)he can claim the privilege against self-incrimination.

How, you ask? Well, either what the witness told the police was a lie (i.e. filed a false police report) or what the witness will testify to creates a risk of perjury because what they will testify to (their story) has changed since we talked to them. Either way, the witness can typically claim the privilege and validly refuse to testify.

The long story writ short is that domestic violence cases often resolve themselves because the person who called the police recants. In other words, it is not the skill of a high-priced, veteran criminal defense lawyer that makes a positive outcome likely—much of the problem is self-solving and unaffected by what type of lawyer is handing the case.

3. The Out-of-Towner

I sat in the jury box of a small courtroom in my hometown recently, doing a little bit of court watching. For context, my hometown is rural and Appalachian and everybody knows each other…or so it often seems.

As I was watching afternoon pre-trial conferences, one of the defendants came in accompanied by a lawyer who was from a city about an hour and a half away. From what I could tell—admittedly, not much—neither the lawyer nor the defendant had major ties to my town. The charge itself was a license suspension case I believe and, presumably, the defendant was just driving through when he was stopped.

Here, I need to make a confession. I have no reason to believe this particular attorney got a less favorable result for his client than someone who was local. I don’t practice in the state, I wasn’t privy to the case’s history, and I didn’t see anything that appeared obviously anti-outsider to me. However, one of the advantages to being local is seeing what the “norm” is. Put differently, you start to see what the judge is likely to do, what the other side will typically offer, what police practices are, and even how a jury might react to certain types of cases. Knowing these things is important when advising the client because clients are expecting you to provide information about what is likely to happen. Indeed, knowing what is likely to happen plays a part of providing competent representation by allowing the client to make informed decisions.

My guess is that this out-of-town attorney probably charged more than anyone local. Could he have done a better job than a local lawyer? I admit that I don’t have a definitive answer here. Maybe he’d see some creative motion than local counsel wouldn’t think of or perhaps his lack of connection to the area would allow him to fight more zealously without fear of being ‘punished’ down the road by an unhappy judge or prosecutor. However, the lack of knowledge surrounding local practice/custom could just as easily prevent him to give good advice. Not to mention the possibility that locals prey upon his ignorance—a possibility that leads down a rabbit hole I don’t care to explore right now.

4. What Does It All Mean?

I chose these preceding three examples because I think each shows the fallacy of “you get what you pay for” when it comes to criminal defense. Any bargain hunter out there knows the value of looking beyond the price tag. Can I find this item at an outlet mall? Can I find it online for less money? Is most of the price tag just because of the designer label? Sometimes we buy things precisely because of who made them…we find a value to having the Coach purse or Armani suit that is independent of the item’s quality. It makes us happy, in part, because it announces to the world that we have enough money to blow on such an item.

I wonder if we do the same thing with lawyers subconsciously? Do we see the veteran attorney with the fancy car and seek his representation because we believe he’s qualitatively better than some other attorney? I mean, he’s probably better at taking your money but does he consistently get better outcomes than other attorneys?

I acknowledge that these are questions I’m still working through but I have come to believe that there are plenty of factors most consumers probably don’t take into account when taking out a second mortgage or cleaning out their child’s college fund just to hire a high-priced attorney. Has the attorney regularly practiced where the client’s case is? Has he consistently achieved better results than other attorneys handling the same types of cases? Has he come up with creative arguments in previous cases? What does his written work product (e.g. briefs, motions) look like? How are his trial skills?

I’d want to know these sorts of things and see for myself. I have no problem with a highly skilled attorney earning his fair share but would be leery of those who charge more merely because of how long they have practiced or who they know. The 20 year prosecutor-turned-defense attorney might just be more interested in getting along with his old pals and the judges than he is in zealous advocacy. The exceptional personal injury lawyer may not practice enough criminal defense to do any better than another attorney who charges less. You get the idea… As my anecdotes demonstrate, the outcome of a criminal case turns on more than just how much money you paid for an attorney. There is a lot at work including how well your attorney knows the law, how well he knows local practice, how clever he is, and so on and so forth. Should you ever find yourself in a situation where you’re considering hiring an attorney, think carefully and critically about the choice. And if you’re assigned an attorney for free such as a public defender, don’t be too quick to dismiss the capabilities of those who represent the 75-90% of defendants and are likely the most experienced people you could get. You might be surprised to find that your public defender is the best attorney money can’t buy.

-Zachary Cloud

File Under “It’s About Time”: SDNY Judge Finds Unconstitutional NYPD’s “Stop & Frisk”

I’m on vacation, spending much of my time in places with no cell phone service and doing a lot of work with my hands. It’s been great. But I’m popping in to post about what has been a long time coming. Today, Judge Scheindlin handed down two opinions in the class action suit against the New York Police Department—she has ruled the NYPD’s policy of stopping and frisking people violates the Equal Protection Clause of the Fourteenth Amendmet because of the practice’s disparate impact on racial minorities.

I’ve previously expressed my dismay that the Stop & Frisk program was being carried and—and especially that it was being praised by city officials. You can find the two opinions Judge Scheindlin issued on the Southern District for New York’s webpage. They’re collectively quite long but nevertheless worth a read. I’ll leave you with one of my favorite quotes:

I emphasize at the outset, as I have throughout the litigation, that this case is not about the effectiveness of stop and frisk in deterring or combating crime. This Court’s mandate is solely to judge the constitutionality of police behavior, not its effectiveness as a law enforcement tool. Many police practices may be useful for fighting crime — preventive detention or coerced confessions, for example — but because they are unconstitutional they cannot be used, no matter how effective. “The enshrinement of constitutional rights necessarily takes certain policy choices off the table.”

I love it! I will probably be sitting down in the next few days to write up a post about the continual revelations regarding NSA data collection/inspection and perhaps a post about encryption. Since I learned of the telephony metadata, PRISM, and attendant surveillance programs, I have made it a major hobby to get up to speed on everything related to encryption and I have some observations you might find worthwhile. Until the next post…

-Zachary Cloud

No New Posts Till After The Bar Exam

With just a little over a week left until the bar exam, I have no free time to post. I’ll be back soon though!

-Zachary Cloud

Psychology Weekends: What Does “Reasonable Doubt” Really Mean to a Jury?

There are some concepts in the law that are frustratingly amorphous. One of those principles is “proof beyond a reasonable doubt.” What does that even mean? Jury instructions purport to explain it but have the tendency to just complicate the matter. We know from past precedent that it can’t be quantified into some percentage of certainty and that it’s not a requirement of absolute, 100% certainty. But that’s about it…leaving one to wonder how jurors grapple with the concept and apply it in actual criminal trials.

Today, I’m gonna tell you how.

1. Jury Instructions Lower The Amount of Certainty Jurors Need to Feel When Deciding to Convict

There are two pieces of research that we should look at. The first, by Daniel Wright and Melanie Hall, is an interesting attempt to determine what level of confidence may actually be the threshold for reasonable doubt in the real world. The design of the study is fairly simple: have participants read a fact pattern and make a decision about the criminal defendant’s guilt. Next, have the individual rate his or her level of confidence in the guilt. Finally, determine the confidence “point” at which 50% or more of participants will vote to convict. Essentially, this is applying statistical methods most common to pharmacology and biochemistry in general—we look to see what the “LD-50” or lethal dose for which 50% of the population would die.

The study examines a far more intriguing question. Namely, can a judge’s instructions defining reasonable doubt have an effect on the belief of guilt itself? Or, put a different way: would a jury that’s been given no definition of reasonable doubt tend to have a different threshold for what’s enough evidence than a jury instructed on the concept? The researchers theorized that jury instructions telling jurors that they didn’t need to be absolutely certain would have the effect of increasing conviction rate.

To investigate this inquiry, the researchers conducted 2 experiments. In the first one, participants were put into two conditions: no jury instruction given and jury instruction given. Half of the participants were told only to find the fictitious defendant in a fact pattern guilty if they believed him guilty beyond a reasonable doubt. The other half of participants were told this and then given a jury instruction clarifying that “beyond a reasonable doubt” does not require 100% certainty. Lastly, participants rated their confidence in their decision and provided a brief, written explanation for why. The second experiment used the same methods as the first experiment but a substantially larger group of participants.

Some interesting results came out of the experiments. There was not statistically significant evidence to support the theory that detailed jury instructions will make people more likely to convict. However, the instruction did affect the “LD50” for how much proof is needed. That is, when jury instructions were given that told people they needn’t be absolutely certain of guilt, the confidence level at which 50% of jurors chose to convict decreased.

This is both an intuitive and remarkable finding if you think about it. The results tell us that when people are given a jury instruction saying that total certainty isn’t necessary, people will convict on a 63% level of confidence. However, when no jury instruction is given explaining reasonable doubt, people will not convict unless they are 77% convinced of guilt.

How do we square this what I said earlier—that jury instructions don’t make people more likely to convict? It’s a little tricky but the authors explain it as follows: “[A]lthough the instruction lowered the threshold for a guilty verdict, because belief in guilt was also lowered, there was no significant effect on the number of guilty verdicts.” (Wright & Hall, 2007: 96).

This study, like so many others, has a downside in that it relies upon students for its group of participants. It also has the limitation of occurring in settings remarkably different from an actually jury—these were participants in a university setting rather than a group of jurors who were assembled in a courtroom. Further still, this study assess how a juror would make decisions prior to group deliberation and the power of group dynamics for altering one’s perspectives can be strong. However, the limitations of this study can simultaneously be assets. Its crisp, simple design lets us have more certainty that the results are due to the variables manipulated rather than intervening or moderating variables. It also is worth remembering that every jury is a group of jurors who sat down, watched a trial, heard judicial instructions about the law, and formed an opinion before deliberations. Understanding how people form their individuals opinions that they ten take with them into the deliberations is quite important in and of itself.

2. Alternative Explanations for What Happened Tend to Decrease Likelihood of Conviction

That jury instructions may actually cause people to convict under lower certainty is alarming—at least to a practitioner and believer in a high burden of proof. Is there anything we can do to counteract this effect?

Thankfully, yes.

Researchers at University of Virginia and Georgetown University considered whether creating an alternate narrative could reduce the likelihood of conviction. You see, in the early ‘90s, Nancy Pennington and Reid Hastie suggested the “Story Model” of jury deliberations. I talked a little bit about it here. A quick recap is that jurors work to build a story of what happened rather than performing a surgical breakdown of proof by each legal element.

The theory makes sense and is intuitive enough; one of its implications is that, where jurors are not sure which of two stories is the right one, there should probably be reasonable doubt. For example, if prosecutors allege a defendant committed a crime and the defendant presents credible evidence that it had to be someone else because he wasn’t at the scene, a jury should acquit. In fact, unless the jury decides that the defendant’s “story” is lacking in believability, they should acquit. But does this work in practice?

To find out, the authors designed an experiment where participants read a trial transcript. The prosecution case was designed to make it appear virtually certain that the defendant was guilty and the defense transcript introduced evidence that suggested another individual was actually the culprit. The experimenters varied the specifics of the alternate story such that some participants received a greater number of potential alternatives. Participants read the trial transcript for their assigned condition, then read a description of “beyond a reasonable doubt,” and finally made determinations of guilt. Notably, participants were asked to indicate their level of confidence in the guilt of the defendant and, where applicable, of any other suspects that the defense suggested.

The results show that an “alternative story” does indeed increase the likelihood of acquittal. It’s worth pointing out that participants who chose to acquit didn’t merely feel “less certain” of guilt but actually felt more certain in innocence. This effect is not a minor one—the researchers found a sizeable change in confidence when an alternative story was provided to jurors.

Hold your horses, because there’s more. Although an alternate story where the defense provides additional suspects beyond the defendant decreased likelihood of conviction, jurors still found the defendant as “more likely” to be guilty than the other suggested perpetrators. This is quite an important point because it highlights that jurors actually were operating on the principles of “beyond a reasonable doubt.” They may have felt the defendant was most likely out of a group of suspects but they didn’t feel convinced enough to convict. That’s justice as it should be.

This research is seemingly common-sense. After all, providing juries with another story should, if believed, cause them to be less clear on the prosecution’s theory. Some might say this research just goes to confirm what we already know…and yet, I’m not sure I’d agree. First of all, research can be valuable merely for providing empirical support for what we assume to be true. Secondly and more importantly, this disconfirms a concern that I’ve had for some time: that jurors see all defense attorneys as just out to trick them or manufacture reasonable doubt. If jurors felt that way, they would pay no heed to an alternative theory or explanation. Accordingly, this gives me some encouragement that jurors take their jobs seriously and aren’t out just to convict.

3. Final Thoughts

These two pieces of research show us interesting things about juries. They show us that jury instructions on reasonable doubt can actually lower an individual’s threshold for the amount of certainty he or she needs to feel in order to convict. On the other hand, they also show us that jurors are willing to examine a defense’s contentions rather than flatly rejecting them or tending to presume guilt. If there are any take-home points, they would be: (1) push for a jury instruction that does not overly emphasize the nature of “beyond a reasonable doubt” as a lower standard than complete certainty, and (2) build your theory of the case to explain why the prosecution’s story is the incorrect one. Those two methods appear to have an impact on how juries process and evaluate their confidence in guilt.

The concept of proving something “beyond a reasonable doubt” has a long history of evading any real meaning. Judges who have tried to come up with concrete jury instructions have sometimes been reversed on appeal or otherwise criticized for meddling with the standard. Legally speaking, no one really knows exactly what it means. In truth, that’s probably no accident. For example, the law often uses a “reasonable standard” or a “Totality of the Circumstances” test to avoid bright line rules and make the determination of some legal issue rest on its facts. It is a way of turning fact-finders into legal decision makers. It is a way of building flexibility into the system. This is both a blessing and a curse because it allows for flexibility and equity while simultaneously removing any guidance. Jurors are almost always lay persons who don’t practice law for a living and would probably very much like more guidance and clarity they receive. Yet the law refuses to tell them what to do with a detailed definition or explanation of “beyond a reasonable doubt.” Essentially, the law tells them: “use your best judgment based on what you understand this legal concept to mean.” In the face of such an instruction, jurors have worked hard to comply. And as the research presented here tends to show, those jurors tend to be doing a decent job.

-Zachary Cloud

References

Tenney, E.R., Cleary, H. M. D., & Spellman, B. A. (2009). Unpacking the Doubt in “Beyond a Reasonable Doubt”: Plausible Alternative Stories Increase Not Guilty Verdicts. Basic and Applied Social Psychology, 31, 1-8.

Wright, D.B. & Hall, M. (2007). How a “Reasonable Doubt” Instruction Affects Decisions of Guilt. Basic and Applied Social Psychology, 29, 91-98

Psychology Weekends: Ways Police Trick You Into Giving Up Your Rights

I want to do something different this week. The past couple of weekends, I’ve looked at current or recent research and critiqued it. I’ve also examined empirical bases for a theory or two  but this time around, I am going to forego getting technical or merely doing a lit review of sorts. Instead, I want to write about some observations about tactics the police in America often use to get people to give up their rights.

We need to get a couple of things straight right up front. First, I’m not a cop and never have been. The things I’m saying here aren’t based on some insider, I-learned-this-in-a-training-program set of knowledge. I say that because I don’t want you to think that there’s necessarily some uniform set of skills new cops are being trained on or that all of these little tricks are even intentional. Some police may use certain techniques without realizing or meaning to. The things I share here are derived from personal observations, watching lots of police footage from shows like COPS and Youtube clips of police-citizen encounters, interactions with police that friends and family have had, and from what clients have relayed to me during my past work experiences.

The other thing that we need to get straight is that I’m not giving you legal advice. No doubt, I’m gonna lay a tiny bit of federal constitutional law down as a foundation here and there so I can illustrate my points. That does not mean that this is the be-all, end-all regarding your rights. Some states provide protections above and beyond the minimum federal constitutional requirements. I may illustrate points with some hypothetical here but reading my post won’t teach you what you need to know about the law and you shouldn’t rely on what I might explain because each case is different. Want legal advice? Look elsewhere.

On the other hand, if what you want are some insights into the psychology of the police-citizen encounter, do read on…

1. Police Stops of Pedestrians

I could have jumped right to something like interrogations, which is fun and intense but not very familiar for must of us. Something that is familiar is the general police encounter. As we go about our day, we might come across police in a variety of places. In the coffee shop, directing traffic, standing guard outside of a incident scene, etc… For the most part, we all go about our separate ways and nobody’s bothered.

But sometimes police may want to talk to you. And they may approach you. And here’s where the first tactic I see starts to come into play. As a general rule, there are three types of police encounters you can have: (1) consensual ones, (2) investigatory stops (aka Terry stops), and (3) arrests. See, e.g., United States v. Ford, 548 F.3d 1, 4 (1st Cir. 2008). A police officer is certainly allowed to approach you and ask you questions…so what?

A hypo to illustrate how this works: Jane is walking along in a rough part of town. A police officer sees her and has a hunch that she might be possessing some sort of drug. He walks up to her and says “Hang on, where are you headed? What are you doing here?”

This is not an investigatory stop. It’s not an arrest. Jane isn’t being detained and she certainly doesn’t have to answer the police officer if she doesn’t want to. This is an officer’s request for a consensual conversation. She doesn’t have to agree to it…but I’ll almost guarantee you that she will…and that you would too if you were in the same situation. What’s going on here is simple. The officer has a mere hunch that Jane might be doing something illegal but he doesn’t have the amount of suspicion required to actually conduct an investigatory stop nor does he have a basis to search. So, what he’s going to do is try to get to his goal by an alternate route.

How does he do that? A couple tricks are working together. For starters, he’s put her on the defensive by asking her what she’s doing there. This conjures up a desire to explain that we just naturally have. It’s instinctive. When someone accuses you and you’re not doing something wrong, you feel the need to explain. And, when someone accuses you and you are doing something wrong, you will still try to explain. You might well get defensive. This is a chess match of sorts because if Jane starts to act odd or evasive, that might give rise to specific articulable facts that could allow for detention.

2. Stop and Frisk

This point ties nicely to my first one above. I’ve read a lot lately about the NYPD Stop and Frisk policy as well as some equivalent policy in England. I could go off on some long tangent about this topic because I think it’s essentially government-endorsed rights violations. More troubling still is that many in the general public seem to be okay with this…which perhaps explains why there hasn’t been more of an outcry about the NSA’s data collection.

See, I’m digressing.

First of all, a couple of basic legal principals. Police cannot randomly pat people down because they feel like it or have a hunch that someone is breaking the law. I really don’t want to go off on a tangent here but I just have to make sure we’re all up on what the law actually allows. The foundation was set down in Terry v. Ohio, 392 U.S. 1 (1968). A police officer may only conduct a protective frisk (colloquially, a Terry frisk) when he or she has specific articulable facts that suggest the person may pose a danger to the officer or others nearby. In theory, the NYPD policy purports to conduct stops only when these legal criteria are met. In practice, there’s plenty of reason to doubt that. This troubling video gives a first-hand look at what I mean.

However, it gives me a segue to explain another tactic police will use. Consider this hypo: John is walking down the street quickly when an officer sees him and recognizes him from a wanted poster. He detains John and runs a database check, which reveals that there are no outstanding warrants for John’s arrest. He asks John “you don’t have anything illegal on you do you?” John, looking nervous, replies “No officer.” The officer replies, “you know, it’ll be a lot better for you if you’re honest with me. If I’m gonna find something on you, you should let me know now.”

Okay, let’s do a play by play here. The initial stop is valid and the officer may detain John. He has reasonable suspicion that John is wanted and he can stop him temporarily to do a warrant check. So far so good. The officer then learns that John’s in the clear—he doesn’t have any outstanding warrants. This is where the stop should end but it doesn’t…and it won’t. The officer doesn’t have the legal authority to pat down John unless there’s some specific, observable facts that could point to John posing a safety risk. Because the officer can’t just pat him down, he uses a clever trick to try and work around that.

The officer is playing on what he perceives to be a fear of getting caught. He offers what seems to be a solution (come clean now or it’ll be worse for you). Problem is, this is illusory. If John admits to having drugs or something illegal on his person, he’ll get arrested and searched and he’ll be charged. How can admitting to anything help?

This is an instance where taking a moment or two to think logically about the situation shows how silly “owning up” for the sake of leniency is. It also requires me to explain a little bit about the mechanics of a criminal case. Let’s suppose John gets illegally searched and busted for having drugs. He’s said nothing despite the officer’s pressure on him to do so. He gets arrested and charged. Eventually, his attorney will fight the stop and has a fighting chance at getting the case dismissed. On the other hand, if John admits possession, he’ll get arrested and the search incident to lawful arrest will turn up that same contraband. He’ll get charged just like when he kept silent but now he has no basis to suppress the evidence. Maybe a prosecutor would give some leniency on his willingness to admit responsibility to the cops but that’s like reading a crystal ball. The police don’t get to deicde what sort of plea bargains to offer, they can’t make enforceable promises of leniency, and ultimately don’t control how the criminal case will get disposed. John was better off keeping his mouth shut.

3. Automobile Stops

My explanation above applies equally well to traffic stops. Another thing that often happens is that police will work hard to get consent.

For example, Mary gets pulled over by a cop for speeding. During the stop, her eyes appear a little blood shot but there is no evidence of alcohol or drugs in the officer’s line of sight. He asks here, “you haven’t been drinking or doing drugs, right?” Mary says, “No.” The cop responds, “you don’t have any drugs with you, do you?” Mary again says no. Now, the cop responds, “then you won’t mind if I look in the trunk…”

This example is another obvious tactic. You’ve heard it  plenty of times before, I’m sure and it could properly be restated “if you have nothing to hide then you shouldn’t mind…” However, this misses the point in a couple of ways. It assumes that innocent people won’t mind giving up their privacy to prove their innocence when, in reality, they shouldn’t have to prove anything because everyone is presumed innocent under the law until proved otherwise. So, to that extent, it plays on our tendency to feel the need to explain and defend ourselves in the face of accusations.

More fundamentally though, this sort of logic should always be a red flag. Police usually do what they lawfully can. In other words, if the law allows them to search your car or home they will just do it rather than asking your permission. A detective with a search warrant won’t ask you if he can search, he will show you the warrant then do it. Similarly, a police officer who actually has the right to search your car (e.g. a drug dog alerts to the presence of narcotics) won’t ask you for permission. He’ll just search.

4. Interrogations

I thought I’d save the best for last here. In my previous examples, I pointed to situations that fall short of arrest. Things change when you’re arrested. You are in “custody” for purposes of Miranda, which means that the stakes are higher for everyone involved. Police think they have probable cause to believe you committed a crime. They want to question you and thus begins a litany of little tricks designed to get you talking.

The first trick is getting you to waive Miranda. As a primary point, you should know that a failure to Mirandize a suspect doesn’t mean a case must get dismissed or that statements can’t be used in any way at all. To the contrary, it has the very limited effect of precluding a prosecutor from introducing your statements in their main “case-in-chief” against you.

Anyway, back to the psychology at play. Police want you to talk and they will often present you with Miranda waiver forms. They’ll go through it as routine and present it to you like it’s paperwork that has to get filed out and you’re presumably going to sign it. If you do, you’re probably without recourse. By treating it like signing the form is standard procedure, the police minimize the significance of what they’re asking and what you’re giving up.

And that’s just the start of things.

When it comes down to the actual substance of an interrogation, police often use what’s known as the Reid Technique. Named after its ‘inventor,’ the technique proposes the following systematic steps to eliciting a confession:

  • Begin with directly confronting the suspect
  • Next, shift blame from the suspect to the circumstances surrounding the incident
  • Discourage the suspect from denying guilt
  • Reinforce your sincerity to make the suspect more receptive to talking
  • Provide the suspect with alternative questions or choices for what happened, one more socially acceptable than the other
  • Get the suspect to repeat an admission of guilt
  • Document the confession

These steps are more carefully and intentionally deployed than some of the others but you’re less likely to encounter them in day to day life. Moreover, there’s a lot more written on the psychological methods used in interrogation settings than other types of police encounters so I won’t spend as much time here. What I will add, however, is that the interrogation feature still shares an important quality with my second topic above. Namely, the indication that admissions will benefit you is illusory and doesn’t make logical sense. If the police have a strong enough case against you to arrest you, it doesn’t make much sense to help them out. Giving a confession may take a case from circumstantial to rock solid. It might just sink the ship and ruin any defense you could have.

4. Concluding Remarks

This isn’t an exhaustive list or empirle study. I might add to this list in a later post if I want to. It’s worth pointing out again that some of these techniques may not even be conscious. That is, officers may be doing them without any calculated desire to wage psychological warfare on you. The point to all of this is that it never hurts to be a critical thinker. You have rights and the pressures that police exhibit in situations such as the examples above can tend to make you stop acting logically. Don’t be too quick to throw rational judgment out the window. It’s probably most important in these sorts of scenarios. After all, they’re your rights…you should be making the informed decision about whether or not to waive them.

-Zachary Cloud