Summary: Here’s another post about our broken criminal justice system by someone who .understands its weaknesses –Hon. Alex Kozinski, a judge on the Ninth Circuit. His description has little resemblance to what we see on TV in CSI and NCIS, or to what our peers experience in Europe or Japan. {1st of 2 posts today.}
Excerpt from “Criminal Law 2.0“
by Hon. Alex Kozinski (Ninth Circuit judge)
Georgetown Law Journal, 2015
.
Preface to the 44th Annual Review of Criminal Procedure
Section I (footnotes omited)
… In fact, much of the so-called wisdom that has been handed down to us about the workings of the legal system, and the criminal process in particular, has been undermined by experience, legal scholarship and common sense. Here are just a few examples:
(1) Eyewitnesses are highly reliable.
This belief is so much part of our culture that one often hears talk of a “mere” circumstantial case as contrasted to a solid case based on eyewitness testimony. In fact, research shows that eyewitness identifications are highly unreliable, especially where the witness and the perpetrator are of different races. Eyewitness reliability is further compromised when the identification occurs under the stress of a violent crime, an accident or catastrophic event — which pretty much covers all situations where identity is in dispute at trial.
In fact, mistaken eyewitness testimony was a factor in more than a third of wrongful conviction cases. Yet, courts have been slow in allowing defendants to present expert evidence on the fallibility of eyewitnesses; many courts still don’t allow it. Few, if any, courts instruct juries on the pitfalls of eyewitness identification or caution them to be skeptical of eyewitness testimony.
(2) Fingerprint evidence is foolproof.
Not so. Identifying prints that are taken by police using fingerprinting equipment and proper technique may be a relatively simple process, but latent prints left in the field are often smudged and incomplete, and the identification process becomes more art than science. When tested by rigorous scientific methods, fingerprint examiners turn out to have a significant error rate. Perhaps the best-known example of such an error occurred in 2004 when the FBI announced that a latent print found on a plastic bag near a Madrid terrorist bombing was “a 100% match” to Oregon attorney Brandon Mayfield. The FBI eventually conceded error when Spanish investigators linked the print to someone else.
(3) Other types of forensic evidence are scientifically proven and therefore infallible.
With the exception of DNA evidence (which has its own issues), what goes for fingerprints goes double and triple for other types of forensic evidence:
Spectrographic voice identification error rates are as high as 63%, depending on the type of voice sample tested. Handwriting error rates average around 40% and sometimes approach 100%. False-positive error rates for bite marks run as high as 64%. Those for microscopic hair comparisons are about 12% (using results of mitochondrial DNA testing as the criterion).
… Some fields of forensic expertise are built on nothing but guesswork and false common sense. Many defendants have been convicted and spent countless years in prison based on evidence by arson experts who were later shown to be little better than witch doctors. …
(4) DNA evidence is infallible.
This is true to a point. DNA comparison, when properly conducted by an honest, trained professional will invariably reach the correct result. But the integrity of the result depends on a variety of factors that are, unfortunately, not nearly so foolproof: the evidence must be gathered and preserved so as to avoid contamination; the testing itself must be conducted so that the two samples being compared do not contaminate each other; the examiner must be competent and honest. …
(5) Human memories are reliable.
Much of what we do in the courtroom relies on human memory. When a witness is asked to testify about past events, the accuracy of his account depends not only on his initial perception, but on the way the memories are recorded, stored and retrieved. For a very long time, it was believed that stored memories were much like video tape or film — an accurate copy of real-word experience that might fade with the passage of time or other factors, but could not be distorted or embellished.
Science now tells us that this view of human memory is fundamentally flawed. The mind not only distorts and embellishes memories, but a variety of external factors can affect how memories are retrieved and described. …
(6) Confessions are infallible because innocent people never confess.
We now know that this is not true. Innocent people do confess with surprising regularity. Harsh interrogation tactics, a variant of Stockholm syndrome, the desire to end the ordeal, emotional and financial exhaustion, family considerations and the youth or feeble-mindedness of the suspect can result in remarkably detailed confessions that are later shown to be utterly false. …
(7) Juries follow instructions.
This is a presumption — actually more of a guess— that we’ve elevated to a rule of law. It is, of course, necessary that we do so because it links the jury’s fact-finding process to the law. In fact, however, we know very little about what juries actually do when they decide cases. Do they consider the instructions at all? Do they consider all of the instructions or focus on only some? Do they understand the instructions or are they confused? We don’t really know. … But we have no convincing reason to believe that jury instructions in fact constrain jury behavior in all or even most cases. …
(8) Prosecutors play fair.
The Supreme Court has told us in no uncertain terms that a prosecutor’s duty is to do justice, not merely to obtain a conviction. … There is reason to doubt that prosecutors comply with these obligations fully. …
(9) The prosecution is at a substantial disadvantage because it must prove its case beyond a reasonable doubt.
Juries are routinely instructed that the defendant is presumed innocent and the prosecution must prove guilt beyond a reasonable doubt, but we don’t really know whether either of these instructions has an effect on the average juror. Do jurors understand the concept of a presumption? … Nor do we know whether juries really draw a distinction between proof by a preponderance, proof by clear and convincing evidence and proof beyond a reasonable doubt. These levels of proof, which lawyers and judges assume to be hermetically sealed categories, may mean nothing at all in the jury room.
… {research suggests that} jurors are persuaded of whatever version of events is first presented to them and change their minds only if they are given very strong reasons to the contrary.
(10) Police are objective in their investigations.
In many ways, this is the bedrock assumption of our criminal justice process. Police investigators have vast discretion about what leads to pursue, which witnesses to interview, what forensic tests to conduct and countless other aspects of the investigation. Police also have a unique opportunity to manufacture or destroy evidence, influence witnesses, extract confessions and otherwise direct the investigation so as to stack the deck against people they believe should be convicted.
And not just small-town police in Podunk or Timbuktu. Just the other day, “[t]he Justice Department and FBI [] formally acknowledged that nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all [of the 268] trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000.” …
(11) Guilty pleas are conclusive proof of guilt.
Many people, including judges, take comfort in knowing that an overwhelming number of criminal cases are resolved by guilty plea rather than trial. Whatever imperfections there may be in the trial and criminal charging process, they believe, are washed away by the fact that the defendant ultimately consents to a conviction.
But this fails to take into account the trend of bringing multiple counts for a single incident — thereby vastly increasing the risk of a life-shattering sentence in case of conviction — as well as the creativity of prosecutors in hatching up criminal cases where no crime exists and the overcriminalization of virtually every aspect of American life.
… And, of course, if the trial process is perceived as highly uncertain, or even stacked in favor of the prosecution, the incentive to plead guilty to some charge that will allow the defendant to salvage a portion of his life, becomes immense. …
(12) Long sentences deter crime.
{It is expensive and doesn’t work. Our sentences are far longer than those in our peers.}
Section II
What I have listed above are some of the reasons to doubt that our criminal justice system is fundamentally just.71 This is not meant to be an exhaustive list, nor is it clear that all of these uncertainties would, on closer examination, be resolved against the current system. But there are enough doubts on a broad range of subjects touching intimately on the integrity of the system that we should be concerned.
… What we have is faith that our system works very well and the errors, when they are revealed, are rare exceptions. Much hinges on retaining this belief: our self image as Americans; the pride of countless judges and lawyers; the idea that we live in a just society; confidence in the power of reason and logic; the certainty that none of us or our loved ones will face the unimaginable nightmare of unjust imprisonment or execution; belief in the incomparable integrity and accuracy of our system of justice; faith that we have transcended medieval methods of conviction and punishment so that only those who are guilty are punished, and their punishment is humane and proportionate. …
But what do we really know?
———————– End excerpt. The rest is worth-while reading. ———————–
For More Information
Click here to see articles about prosecutorial misconduct and our broken system of criminal forensic laboratories.
If you liked this post, like us on Facebook and follow us on Twitter. Also see all posts about America’s system of justice, about our prisons, and especially these…
- Being a third world nation is a state of mind, as we will learn (about prison rape).
- Our prisons are a mirror showing the soul of America. It’s not a pretty picture.
- The Collapse of American Criminal Justice System — Excerpts from The Collapse of American Criminal Justice by William J. Stuntz
- The Disgrace of Our Criminal {in}Justice System, and hints of reform in the air.
- Can We Fix Our Shameful Prisons? Why they should be, and why we might not do so.
