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!
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!
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?
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.
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
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.
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:
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.