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Preventing False Confessions: A Step Forward

Confession_(1918)_-_1Recently, Wicklander-Zulawski & Associates announced it will stop training United States police departments on the Reid technique, a method of police interrogation, due to the risk of false confessions the technique presents.  For those of us who have worked in the criminal justice system on behalf of defendants for more than about 5 minutes, this is welcome news.  For those who are unfamiliar with how false confessions occur, some background is in order.

Why Would Anyone Confess to a Crime They Didn’t Commit?

Fair question.  And one prosecutors have been posing to juries in closing arguments since the dawn of time.  The answer, if you’ve been following this blog for any length of time, should not surprise you. . . it’s based in data and research and, well, science.  Studies have shown certain interrogation tactics increase the likelihood of a false confession.

Alternate Interrogation Techniques

Wicklander-Zulawski & Associates will now focus on other interrogation techniques, stating, “Confrontation is not an effective way of getting truthful information.”  The Agency also credited a host of academic research which establishes other interrogation styles “are far less risky.”  Instead, Wicklander-Zulawski & Associates will now address the Reid Technique only to “educate police on the risk and reality of false confessions.”

The Response from John E. Reid & Associates

Joseph P. Buckley, president of John E. Reid & Associates, which licenses the Reid Technique, offered the following in response:

  • The technique has consistently held up in court; and
  • That it is not “confrontational” except when evidence already suggests the suspect’s guilt.

Here’s a full version of their response .

A Word of Caution

The response from John E. Reid & Associates contains at least some misstatements or overstatements to support their position.  For example, the response includes an assertion Steve Drizin and Laura Nirider gave a presentation for the National Association for Criminal Defense Lawyers, favorable towards the technique.  Reid’s statement includes the sentence, “In their presentation they stated that Reid is the gold standard on proper procedures, and that they regularly review reid.com and our materials to establish best practices and to point out what other investigators did that was improper.”

One Response to the Response

The record should be very clear.  This is, at best, a misunderstanding of the presentation.  To correct the record, Steve Drizin and Laura Nirider have issued a statement of their own, found here.  The short version of their response is twofold:  1.  We do not endorse the Reid Technique, nor do we consider it a model for proper procedures or best practice; and 2. For more information on a juvenile interrogation protocol that we do consider to be a model for best practices, please visit the International Association of Chiefs of Police’s website.

Commentary

The fact a technique or method has “consistently held up in court” is not proof a method works; is safe and fit for purpose; does not have an error rate; or the method was applied effectively in the case at hand.  Our criminal justice system is rife with examples of methods “consistently held up in court” which have no basis in science.  See, for example, hair analysiscomparative bullet lead analysis, and bitemarks.  This is not a valid argument for the efficacy, suitability, or validity of a method.

The assertion the method is not confrontational “except when evidence already suggests that the suspect’s guilt” is dangerously deceptive.  On its face, this seems to suggest a certain amount of caution, since they are “only” confrontational with people who are probably guilty.  First, as a general rule, people don’t become suspects unless there is some evidence which suggests their guilt.  Thus, by their own standards, confrontational methods are appropriate for everyone.  Second, we know people who are guilty sometimes confess, and people who are not guilty sometimes confess.  The use of confrontational techniques will yield both true confessions and false confessions.

By understanding false confessions are always a risk in an interrogation, and by seeking to teach methods less likely, according to scientific studies, to induce a false confession, Wicklander-Zulawski & Associates has taken steps which should keep all of us safer – safer from false confessions, wrongful convictions, and, by virtue of same, guilty people remaining on the streets, free to cause more damage to society.

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Massachusetts Supreme Judicial Court Rules on “Dookhan Defendants”

Massachusetts Court Again Addresses Dookhan Defendants’ Plight

“We once again confront the tragic legacy of the misconduct of Annie Dookhan when she was employed as a chemist at the William A. Hinton State Laboratory Institute.”  So begins a recent opinion, referred to as “Bridgman II” issued by the Massachusetts Supreme Judicial Court.  The court is wading through the mess of 24,000 criminal convictions based on the test results produced by Annie Dookhan.

Ms. Dookhan intentionally and deliberately tampered with evidence, adding known

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credit, By Jeff Dahl – Own work, CC BY-SA 3.0

controlled substances to samples which were otherwise not illegal.  Ms. Dookhan also created reports indicating the presence of a controlled substance without actually performing the test (a process known as “dry labbing”).  In 2013, Ms. Dookhan pled guilty to 27 counts, including tampering with evidence, filing false reports, and misleading investigators, while a drug analyst at the Hinton, Massachusetts Lab.  She has served 3 years in prison for her misconduct.

 

Prosecutors Resist Addressing the Problem

The state of Massachusetts continues to grapple with what to do with those convicted based on Ms. Dookhan’s lab reports.  Inexplicably, despite general consensus that Ms. Dookhan did indeed tamper with evidence in a number of ways, prosecutors resist requests to dismiss all cases worked on by Ms. Dookhan.  Over the years, prosecutors offered a variety of excuses for their failure to actively seek justice, including:

  • Prosecutors have no obligation to notify convicted defendants of their possible innocence;
  • Convicted defendants “might be too poor or busy dealing with more pressing issues”; and
  • Defendants lack interest in “reopening a closed chapter in their lives.”

The Massachusetts Supreme Judicial Court acknowledged, given the extent of the misconduct, “only poor alternatives” exist to remedy the situation.  The Court further expressed frustration with “the unacceptably glacial systemic response to date.” Additionally, the Court expressed dismay prosecutors failed to notify defendants many of them are entitled to a favorable legal presumption.  A previous court ruling entitles certain defendants to a presumption the analysis performed was “tainted by egregious government misconduct.”  The Court called upon prosecutors to dismiss with prejudice “a truly significant number” of the Dookhan cases.

A Method for Dealing with the Problem

The Court ordered District Attorneys to review all Dookhan cases individually.  Prosecutors must determine whether enough evidence exists to secure a conviction, in light of the Dookhan misconduct.  The Court declared mid-April the deadline for the review.  Of those cases wherein the prosecution maintains the belief a conviction is obtainable, they have 30 days to notify the defendant of certain rights.  These include:

  • The right to a new trial on the charge;
  • A promise not to recharge counts previously dismissed; and
  • The assurance of a sentence no longer or more severe than the original sentence, should the government prevail at trial.

 

A Caution

In a concurring opinion, Justice Lenk expresses frustration regarding the fewer than 2,000 cases addressed in the past 5 years.  “We cannot go on this way.”  People with drug convictions find themselves struggling to obtain jobs, housing, professional licenses, obtain student loans, attend college, receive government benefits they would otherwise be entitled to, and even face deportation.  Justice Lenk notes the measures announced by the majority appear “promising” but only if implemented in observance of the timelines put forth.   Further, Lenk called upon prosecutors to aggressively dismiss cases.  “At a minimum,” the concurrence called for dismissal of cases involving “simple possession” where defendants already completed their sentence.  “Only this will forestall the need for a ‘Bridgeman III’ and different measures.”