Tuesday, September 14, 2010

Justice Meets Science, Justice Loses

The more we know about stuff, the less confident we can have in past decisions in the courts.  DNA has revolutionized the courts, so that we can rule people in and out pretty effectively revealing past miscarriages of justice.
New research shows how people who were apparently uninvolved in a crime could provide such a detailed account of what occurred, allowing prosecutors to claim that only the defendant could have committed the crime.
So, we have people--the mentally ill or impaired, kids, the pressured--confessing to crimes they did not commit.  And they do so believably because the facts of the crime enter the conversation via the police during the interrogation.
Instead, he said, “almost all of these confessions looked uncannily reliable,” rich in telling detail that almost inevitably had to come from the police. “I had known that in a couple of these cases, contamination could have occurred,” he said, using a term in police circles for introducing facts into the interrogation process. “I didn’t expect to see that almost all of them had been contaminated.”
 This again reminds of the disparate outcomes in the US justice system, that whites do far better than African-Americans and that the race of the victims matter a great deal.  We now have some more info to understand these outcomes, as the police might just press suspects more in such situations than white on white or black on black crimes.  And this is where the wealth of the suspect matters as well--defense attorneys that cost $$ are probably going to be better armed to prevent or undermine a confession than a public attorney.  Especially in a place like Texas where the attorneys used to be (and perhaps still are?) appointed by judges who took campaign contributions from the aforementioned attorneys (even Lee Child, the novelist, found this problematic in one of his books).*

Gee, I wonder what would have happened if they had DNA evidence for the OJ trial.  Oh, they did?  Never mind. 

DNA is not a panacea:
Proving innocence after a confession, however, is rare. Eight of the defendants in Professor Garrett’s study had actually been cleared by DNA evidence before trial, but the courts convicted them anyway.
Jim Trainum, a former policeman who now advises police departments on training officers to avoid false confessions, explained that few of them intend to contaminate an interrogation or convict the innocent.
“You become so fixated on ‘This is the right person, this is the guilty person’ that you tend to ignore everything else,” he said. The problem with false confessions, he said, is “the wrong person is still out there, and he’s able to reoffend.”
The key, of course, is getting representation before interrogation is underway.  And another key is better information like this piece about the reality that confessions may not be that much more reliable than witnesses.

The most important lesson: invest in social science--it can save lives.  Ok, that was self-serving but true nonetheless.

*  Indeed, I knew that GW Bush was severely flawed when I found out he vetoed a bill that would have changed how Texas picked its public defenders so you would not have folks who fell asleep in court and put up sham defenses when awake.

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