Could you be wrong

This is a question I wish jurors would ask themselves more often.

What I think is often missed, is that if you pick a random person out of a telephone directory, the odds are very high than they are not someone capable of heinous murder.

In any homicide investigation, there are two questions to be considered:

(1) Was it some kind of accident or self-defense, or is it murder.

(2) If it’s murder, who did it.

The first question may sometimes seem trivial, but it’s not. Any number of wrongful convictions arise from situations where an accident or self-defense killing is mistaken for murder.

Unfortunately people are far too easily persuaded there is a crime on uncertain evidence, and forget how unlikely it is that an accused person is guilty, especially when there is no apparent motive for an alleged crime, and the accused has no notable record of physical violence towards others.

Uncertain evidence comes in two varieties:

(1) The evidence itself is uncertain : the source is not reliable, or a mistake may plausibly have occurred. An example is making inferences from an absence of evidence, or eyewitness identifications, which are notoriously unreliable. Or a statement made by a person with a motive to lie.

(2) The inference is uncertain : there is an innocent explanation that cannot be ruled out.

I wish jurors would not vote guilty on uncertain evidence, especially when the innocent explanation is far more probable.

And that’s the memo.

 

Combining facts to eliminate reasonable doubt

A question that often occurs to me is this : can many different “suspicious” facts be combined to arrive at proof beyond a reasonable doubt?

My answer would be “Yes”, but it can be very dangerous, and can easily lead to wrongful convictions.

The reason I say yes, is that DNA evidence actually does just that. DNA is sampled at many different locations, each individual location is only weak evidence, when combined together, strong identification evidence is produced.

It’s impossible to be certain about almost anything. You will have wrongful convictions in any system of justice, because occasionally circumstantial evidence will lead you astray.

However, if you are going to convict on weak circumstantial evidence ( say coincidences that might be random), I would say it’s very important to check first whether there is evidence the OTHER way ( evidence inconsistent with the prosecution case ).

Some examples would be:

• Lack of motive,
• Facts that don’t fit,
• Things that don’t make sense
• Contradictions and Inconsistencies
• Disagreements, battling experts.

These should all be red flags that create reasonable doubt in the mind of a juror.

Distressingly, jurors quite often fail to notice the red flags, resulting in a wrongful conviction.

See also Broken on the Wheel “Voltaire became steeped in the country’s rules of criminal procedure, a labyrinth he found appalling”

The evidence was mostly rubbish – but there was a lot of the rubbish, and in France at the time, even evidence deemed “half-complete” or “imperfect” could convict, by adding fractions of a proof to make a whole.

Causes of wrongful convictions

When studying wrongful convictions, there are many causes. The most routine causes are witnesses who are either mistaken or who have a motive to lie. For example:

• Faulty eyewitness identification
• Guilty parties putting the blame on others
• Incompetent expert witnesses ( liars-for-hire )

Then we have coerced false confessions ( or even confessions that never happened ). I suspect that with recording of suspect interviews, such confessions are now relatively rare.

Next, we have innocent people who lie, which is not exactly a false confession, but can easily cause a wrongful conviction. Examples are self-defense cases where the killing is not immediately reported, lying about being at the scene of a crime.

Then we have cases where there are ambiguous suspicious circumstances. For example a gun being stolen, which might be the murder weapon. A person being a prime suspect ( perhaps simply by being at the scene ). It can be a strange occurrence that has no obvious innocent explanation ( perhaps the Owl attack in the Michael Peterson case ). Or an event that might or might not be an accident (often the death of a child).

Then there is police manipulating evidence, coercing witnesses, suppressing evidence favorable to the accused, or not investigating alternative theories, to get a conviction.

Finally, we have cases where there is some combination of the above causes.

When investigating an alleged wrongful conviction, after establishing the facts, the key is to identify the causes.

… To Be Completed …

Jodi and Debra

Debra Milke took a giant step forward Thursday, when the AZ Appeals Court dismissed the case with prejudice. Prosecutors can still appeal to the AZ Supreme court, but I doubt that will succeed.

And Juan Martinez finally had to concede there was porn on Travis’ laptop, after trying to blame defense attorneys and witnesses.

What a great Thursday. I was at an office party and missed it all!

Sadly though, Amanda Lewis’s 2nd appeal has failed.

Finally, some very good developments for Rodney Lincoln.

Paid experts

Something I came across recently.

Q. And this case, did it come down to an unwillingness of experts to work for the price you were able to pay?

A. Yes, sir, I think it did.

http://www.supremecourt.gov/opinions/13pdf/13-6440_m7ie.pdf

See http://www.eji.org/deathpenalty/innocence/hinton

Price and Prejudice

Some people who comment on cases may not be fully aware of the danger of pride and prejudice to innocent defendants.

Pride

• Pride is dangerous because many people are afraid to admit they were mistaken, for fear of damaging their reputation.
• Some people believe the cure is to simply remain neutral in public and not express any firm opinion.
• For journalists who do not research cases in any detail, this is perhaps the wisest solution.

Prejudice

Prejudice against innocent defendants can occur in many different ways.

(1) Giving ill-advised interviews or being seen by reporters.

Causes:

• Failure to obtain legal counsel
• Existing fame
• Being an attractive woman

(2) Police and/or prosecution leaking incorrect information to the press.

Causes:

• Premature arrest
• Tunnel vision : failure to investigate all suspects
• Failure to identify guilty party

(3) Suppression of evidence

Examples

• Evidence destroyed by police and/or prosecution
• Evidence manufactured by police, prosecution or other parties
• Evidence held to be inadmissible by a court
• Tampering or suppression of trial record / exhibits

(4) Media reports that do not fully disclose defense case

Causes

• Defense case may be withheld for tactical reasons
• Truth remains hidden

Media types

• Newspapers,
• Television or radio broadcasts ,
• “True crime” books
• Websites
• Films

Conclusions

• Be aware of the sources of prejudice listed above
• Be sceptical about any source that seems one-sided
• Be sceptical about police or ex-police sources
• Do not express an opinion on a case without being aware of the prosecution and defense case.
• It may be necessary to consult primary sources, where reliable secondary sources are not available.
• Nothing can be certain, but if all the facts have a clear explanation, you are probably correct.
• Sometimes the required information to draw a firm conclusion may not be available – reasonable doubt.
• If you find discussing a case distressing or are reluctant to look at some new information from a credible source, your conclusion about the case is probably wrong.
• If you are puzzled by some or many aspects of a case, your conclusion (if you have one) is likely wrong due to a combination of pride and prejudice.