Category Archives: investigations and investigation techniques

Brain-scan lie detectors don’t work, study finds

Here’s an excellent story from Pacific Standard magazine:

June 10, 2013 • By Lauren Kirchner

It sounds just like something out of a sci-fi police procedural show—and not necessarily a good one.

In a darkened room, a scientist in a white lab coat attaches a web of suction cups, wires, and electrodes to a crime suspect’s head. The suspect doesn’t blink as he tells the detectives interrogating him, “I didn’t do it.”

The grizzled head detective bangs his fist on the table. “We know you did!” he yells.

The scientist checks his machine. “Either he’s telling the truth … or he’s actively suppressing his memories of the crime,” says the scientist.

“Dammit,” says the detective, shaking his head, “this one’s good.”

But it isn’t fiction. Some law enforcement agencies really are using brain-scan lie detectors, and it really is possible to beat them, new research shows.

The polygraph, the more familiar lie detection method, works by “simultaneously recording changes in several physiological variables such as blood pressure, pulse rate, respiration, electrodermal activity,” according to a very intriguing group called the International League of Polygraph Examiners. Despite what the League (and television) might have you believe, polygraph results are generally believed to be unreliable, and are only admitted as evidence in U.S. courts in very specific circumstances.

The brain-scan “guilt detection test” is a newer technology that supposedly measures electrical activity in the brain, which would be triggered by specific memories during an interrogation. “When presented with reminders of their crime, it was previously assumed that their brain would automatically and uncontrollably recognize these details,” explains a new study published last week by psychologists at the University of Cambridge. “Using scans of the brain’s electrical activity, this recognition would be observable, recording a ‘guilty’ response.”

Law enforcement agencies in Japan and India have started to use this tool to solve crimes, and even to try suspects in court. These types of tests have not caught on with law enforcement in the U.S., though they are commercially available here. That’s probably a good thing; the researchers of this study found that “some people can intentionally and voluntarily suppress unwanted memories.”

The experiment was pretty straightforward, and the participants were no criminal masterminds. Ordinary people were asked to stage mock crimes, and then were asked to “suppress” their “crime memories,” all while having their brains scanned for electric activity. Most people could do it, the researchers found: “a significant proportion of people managed to reduce their brain’s recognition response and appear innocent.”

Not everyone could, though. “Interestingly, not everyone was able to suppress their memories of the crime well enough to beat the system,” said Dr. Michael Anderson, of the Medical Research Council Cognition and Brain Sciences Unit in Cambridge. “Clearly, more research is needed to identify why some people were much more effective than others.”

Separate studies on guilt-detection scans, conducted by cognitive neuroscientists at Stanford University, had similar findings. Anthony Wagner at Stanford’s Memory Lab had study participants take thousands of digital photos of their daily activities for several weeks. Wagner and his colleagues then showed sequences of photos to the participants, and measured their brain activity while the participants saw both familiar and unfamiliar photos.

The researchers could identify which photos were familiar to the participants and which ones were not, with 91 percent accuracy, Wagner said. However, when the researchers told the participants to try to actively suppress their recognition of the photos that were theirs—to “try to beat the system”—the researchers had much less success.

Scientists still don’t know how this “suppression” actually works; like so many questions about the inner workings of the human brain, it remains a mystery. But the fact that so many test subjects could, somehow, do it on command, led the authors of both the Cambridge and Stanford studies to come to the same conclusions.

In short, brain-scan guilt-detection type tests are beatable, their results are unreliable, and they shouldn’t be used as evidence in court. Except on television.

Attacks on experts who testify for the defense keep on coming

One of the best ways end the scourge of wrongful convictions is to prevent them from occurring in the first place. That starts with competent defense teams backed by expert witnesses and unbiased news coverage. But that doesn’t always happen.

Phil Locke reported here how vicious social media attacks on an experienced expert witness for the defense in the heated Jodi Arias murder trial put her in the emergency room for anxiety attacks and palpitations. Experts asked to testify for the defense in controversial trials undoubtedly take note.

Now The Seattle Times has been rebuked by the independent Washington News Council for inaccurately and unfairly representing the work of a forensic psychologist who testifies for defense attorneys in its investigative series on the state’s sexually violent predator program. Relying on prosecution sources, the council said, reporter Christine Willmsen unfairly portrayed Richard Wollert as a hack who promulgated unorthodox theories in order to line his own pockets, quoting detractors who called him an “outlier” who spoke “mumbo jumbo.”

During a June 1 hearing, Wollert said the Times series had “tainted the Washington jury pool” by implying that psychologists who testify for the defense are not credible, damaged his professional reputation and caused his income to plummet.

“By relying almost exclusively on prosecution sources,” forensic psychologist Karen Franklin wrote in her In the News blog, “Willmsen became nothing more than a mouthpiece for government efforts to discredit and silence experts who present judges and juries with information that they don’t like.” She added:

“The main theme of the series was that defense-retained experts were gouging the state. Willmsen wrote that Wollert made more than $100,000 on one SVP case; in a video from the series, Wollert is shown testifying that he earned $1.2 million from sexually violent predator cases in Washington and other states over a two-year period. That’s a big chunk of taxpayer money, and the revelation undoubtedly caused public outrage against defense attorneys and their experts.

“Willmsen wrote that government experts were not paid that much. However, this is patently false. While Willmsen was researching the series, a California psychiatrist who is popular with Washington prosecutors was charging $450 per hour (the average among forensic psychologists being about half that) and — like Wollert — had billed more than $100,000 in a single case. His name does not show up anywhere in the series.

“Following publication of the series, Washington capped the fees of defense-retained SVP experts at $10,000 for evaluations, a fee that includes all travel expenses, and $6,000 for testifying (including preparation time, travel, and deposition testimony). There is no legal cap on the fees of prosecution-retained experts.”

That was a big victory for prosecutors, with an assist from the press, and a big loss for those trying to protect the potentially innocent.

Technical glitch raises more questions about polygraphs

Morrison Bonpasse has encouraged discussion on this blog of his study, “Polygraphs and Exonerations — A Promising Relationship,” on which he made a presentation at last month’s Innocence Network Conference. Bonpasse and I had several exchanges as he finalized his study, and he made some corrections and adjustments as a result.

After his presentation, Bonpasse said in an email that “the facts in my article speak for themselves” about the value of the polygraph in innocence investigations. But do they?

One key fact Bonpasse uses in his paper, which is available here, says that ”the 2003 National Research Council report, The Polygraph and Lie Detection, found an 86% accuracy rate for polygraphs on single issue testing.” But in an analysis of the polygraph’s reliability by a U.S. District Court judge in Atlanta in the case U.S. v. Ricardo C. Williams, the judge took issue with that 86% accuracy claim. It noted that the Research Council went on to say that the quality of the polygraph studies it reviewed “falls far short of what is desirable” and that the accuracy rates that resulted are “highly likely to overestimate real-world polygraph accuracy.”

Part of the problem with many polygraph studies is that they are conducted by people who directly or indirectly are on the payroll of the polygraph industry, whose first interest is profit, not truth.

McClatchy Newspapers Washington bureau reporter Marisa Taylor provided a good example of that in May 20 article here. The article reported that “police departments and federal agencies across the country are using a type of polygraph despite evidence of a technical problem that could label truthful people as liars or the guilty as innocent” because they haven’t been notified of the issue.

Taylor said the technical glitch in question produced errors in the computerized measurements of sweat in one of the most popular polygraphs, the Lafayette Instrument Co’s LX4000. “Although polygraphers first noticed the problem a decade ago, many government agencies hadn’t known about the risk of inaccurate measurements until McClatchy recently raised questions about it,” Taylor wrote.

The story noted that polygraphs, unlike medical or other computerized equipment, aren’t required to meet any independent testing standards to verify the accuracy of their measurements.

Although the LX4000′s problem has long been known, the article said, the experts or decision makers who should have been spreading the word or acting on it didn’t. One reason for that, Taylor reported in a separate story , might be that those experts — including full-time law-enforcement officers — are being paid by the machine’s manufacturer as consultants or dealers.

This can lead to serious conflicts of interest. Consider the two experts who developed the American Polygraph Association’s highly critical response to McClatchy’s findings about Lafayette’s LX4000, which accused McClatchy of exaggerating the problem and working for a competitor. McClatchy said both experts are on Lafayette’s payroll. While Lafayette’s competitors have used the LX4000′s problems to their advantage, they have done it quietly, lest someone start taking a closer look at potential flaws in their own instruments or raise more questions about the polygraph in general.

While Bonpasse’s study is interesting and he makes some good recommendations on how to make polygraph testing better, the polygraph still doesn’t pass scientific muster. For that reason, courts are not likely to accept a polygraph exam’s validity, which is what happened in the Ricardo Williams case mentioned above. In fact, in the two cases Bonpasse mentions that he has used the polygraph in an attempt to prove inmates’ innocence, both men remain in prison. So the polygraph is likely to remain a secondary investigative tool at best.

Decision of Conviction Integrity Unit Leaves Many Questions Unanswered

Jon-Adrian Velazquez has received more attention than most inmates who claim innocence. He’s served more than fourteen years of a 25-years-to-life sentence in prison after being convicted of the shooting of retired New York City police officer Albert Ward during a hold-up at an illegal betting parlor allegedly operated by Ward. The case prompted many lingering questions, but an 18-month official review has apparently not provided a broader consensus that justice has been served, nor that a new review initiative will be effective in addressing possible wrongful convictions. Continue reading

NY Conviction Integrity Unit to Review Notable Detective’s Cases; Chicago Urged to Follow

Louis Scarcella, 61, now retired, a gregarious, former New York police detective who was a go-to investigator for the city’s highest profile murder cases, utilized techniques that might euphemistically be called creative or unorthodox. As the New York Times reported (here) on Sunday, Brooklyn District Attorney Charles J. Hynes has ordered a review of 50 murder cases handled by Scarcella in light of growing questions concerning his tactics and mounting concerns about the integrity of the resulting convictions. Today, the Chicago Sun-Times has published an editorial urging the Cook County State Attorney’s Conviction Integrity Unit to pursue a similar review of the cases of another productive investigator, Chicago Police Detective Reynaldo Guevara. Continue reading

BBC article: Problem with using “snitches”

The BBC has put out an interesting article (by Rob Walker) on the problems of using accused/convicted persons as police informants. It focuses on US practice, specifically the plea bargain process and the cutting of prosecutorial deals. However, the article’s observations are also relevant for countries where accused persons may be “incentivised” to provide the police or prosecution with apparently useful information in exchange for a lower sentence.  For example,  2012 amendments to Singapore’s Misuse of Drugs Act, which used to impose a mandatory death sentence for drug trafficking, now gives judges the discretion to impose life imprisonment instead of the death penalty if certain conditions are fulfilled. One of these conditions is that the Public Prosecutor “certifies to any court” that “in his determination” the accused person has “substantively assisted the Central Narcotics Bureau in disrupting drug trafficking activities within or outside Singapore”.  In such situations, the accused person has an incentive to provide the police or prosecution with information even if he/she does not have any. To avoid wrongful convictions based on the manufacture of false information by accused persons, there needs to be clear regulations and an oversight system put in place. These should be accessible to those who may be wrongly accused, so as to enable their defence or requests for review, as well as the general public to ensure continued confidence in the system.

Singapore: DNA results (among others) leads to the quashing of death row inmate’s conviction by the Singapore Court of Appeal

On 11 March 2013, the Singapore Court of Appeal quashed the conviction of a death row inmate. Mervin Singh had been sentenced to death for drug trafficking by the lower court.

Singapore’s Misuse of Drugs Act presumes that a person is possesses a drug for the purpose of trafficking if he or she is found with certain drugs above specified amounts. The said person is then required to rebut this presumption. Singh argued that he had not known that the package he had been found with contained drugs. Rather, he believed that the package held contraband cigarettes. The Court of Appeal accepted Singh’s argument. Among others, the Court of Appeal cast doubt on the narcotics officer’s claims that he had seen Singh opening and looking into the package, highlighting inconsistencies between the officer’s earlier statement and his testimony at trial.

The court also noted that Singh’s DNA had not been found on the box, the newspaper sheets, or the plastic bags containing the drugs.

The important role played by DNA testing in this case is noteworthy. Many studies show how the practice of DNA testing has led to the prevention and overturning of wrongful convictions in many countries. Singh was fortunate on many counts. He was lucky that there was evidence that could be subjected to DNA testing. He was lucky that DNA analysis was conducted. And he was lucky that the Court of Appeal gave sufficient weight to the results of this analysis. This raises a number of points: 1. Sometimes a piece of evidence that could be submitted for DNA analysis may not be available at the time of trial or the said evidence, though available, may not have been tested due to unintentional oversight or mistakes made in good faith; 2. It is necessary to ensure that there are laws or regulations in place that provide for the preservation of evidence, access to evidence, and DNA testing; 3. There should be accessible and transparent procedures that enable convicted persons and their legal representatives to request access to preserved evidence or submit new evidence for DNA testing at a post-conviction stage.

Tuesday’s Quick Clicks…

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  • Ohio’s public records law dies slow death of 1,000 cuts
  • More than 30 years after he was convicted, a Virginia man has been cleared of abducting a woman and her two young children.  The Virginia Supreme Court on Monday granted Garry Lowell Diamond a writ of actual innocence, Virginia Attorney General Ken Cuccinelli said in a news release
  • In the UK, a man jailed in connection with a murder in Chorleywood 18 years ago is to have his case heard at the Court of Appeal.  Kevin Lane was found guilty of using a shotgun to kill Robert Magill while he walked his dog in 1996.  Appeals judges are expected to hear concerns over a Hertfordshire police officer involved in the investigation who was later jailed.  Lane’s solicitor Maslen Merchant told the BBC: “This is a significant development in what has been a long and arduous journey for Kevin and his legal team.”  The case has been reviewed twice by the Criminal Cases Review Commission (CCRC) which refused to refer the case for appeal.  He subsequently applied directly to the Court of Appeal which instructed the CCRC to look at “particular points”.  The announcement comes almost exactly a year after the Innocence Network UK (INUK) listed Lane’s among 45 cases it believes should be heard by the Court of Appeal. 

Federal Magistrate Recommends Granting the Petition in NCIP Arson Case

From the NCIP….

This case has been covered previously here.  Yesterday, the Northern California Innocence Prorjct receive the Report and Recommendation of Magistrate Michael Seng of the U.S. District Court for the Eastern District of California.  The Magistrate recommended that the habeas petition be granted on three of the seven claims:  ineffective assistance of trial counsel for failure to present a fire expert at petitioner’s retrial, ineffective assistance of trial counsel for failure to call additional defense witnesses—after promising the jury in opening statements that he would do so—and cumulative error.  The court did not grant the petition on the ground that false evidence of arson was admitted (all of the “scientific” evidence has been conceded by the state to be unfounded), but noted that it had already found [in its ruling on Schlup—see earlier posting] that if that unreliable evidence had not been admitted at trial, Souliotes would have been acquitted.  The Magistrate really presents a bullet-proof analysis under Strickland.  Now, the AG has two weeks to file objections before the District Court either adopts, rejects, or revises this recommendation.

Notably, the Magistrate recommended that Mr. Souliotes, who is now 71 years old, be released within 30 days if the State does not decide to retry him.  Such a retrial, in light of the stipulated lack of evidence of arson, is pretty much unthinkable.

Would a universal DNA database aid the innocent?

While the U.S. Supreme Court debates whether police should have the right to take DNA samples from all people arrested for crimes, Eric Posner, a professor at the University of Chicago Law School, goes further. He says governments should take DNA from everyone as the best way to prevent wrongful convictions as well as to solve more crimes. You can read his Slate commentary here.

Singapore: Court to Review Conviction Based on New Medical Evidence

The Singapore High Court has decided that it will review a 2011 conviction on rape and aggravated outrage of modesty based on new medical evidence produced by the convicted person to show that he suffered from erectile dysfunction at the time of the 2006 offences.

Read more about the case here:

Missouri Supreme Court Overturns Murder Conviction; AG Intends to Retry Case

Yesterday Missouri’s high court in a unanimous decision overturned the murder conviction and life sentence of Mark Woodworth, 37, in connection with the fatally shooting of Catherine Robertson and the wounding of her husband, Lyndel, as they slept in their home near Chillicothe, a town of less than 10,000 in northern Missouri. The court ruled that prosecutors had withheld evidence that would have been beneficial to Woodworth’s defense and ordered his release within 60 days of the finalized ruling, unless prosecutors file documents to retry him.

Attorney General Chris Koster indicated through a spokesperson later in the day that his office would retry Woodworth. Continue reading

Barbados rape scandal grows with Police Commissioner statement.

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Further to my 22nd November post:

Victims try to prevent a wrongful conviction in Barbados

the story continues to develop. While the two victim’s efforts appear to have prevented an innocent man from being wrongly convicted of rape, the Police Commissioner of Barbados has now spoken out to claim that he is ‘happy’ with the investigation, and will not be losing any sleep over it. The real rapist is yet to be caught. Derick Crawford maintains that he was forced to confess, and there is no other evidence to link Crawford with the two separate rapes.See news items here:

Barbados rapes: Case against Derick Crawford dismissed

Barbados rapes: Derick Crawford thanks women who fought to clear him

Barbados rapes: Victims Rachel Turner and Diane Davies’ anger at police

 

The Dark Side of Crime Stoppers – False Information and Police Tunnel Vision

CS LogoYou’re probably familiar with Crime Stoppers.  Crime Stoppers first began in Albuquerque, NM during July 1975.  Two weeks after a fatal shooting, the police had no information, when out of desperation, Detective Greg MacAleese approached the local television station requesting a reconstruction of the crime. The re-enactment offered $1,000 for information leading to the arrest of the killers.  Within 72 hours, a person called in identifying a car leaving the scene at high speed, and he had noted its registration. The person calling said that he did not want to get involved, so he had not called earlier. Detective MacAleese then realized that fear and apathy were the primary reasons why the public tended not to get involved. So he helped establish a system where the public could anonymously provide details of crime events that offered cash rewards for information leading to an arrest and/or conviction.  Since its first chapter was officially formed in Albuquerque in 1976, Crime Stoppers has spread across the United States, and has been responsible for more than half a million arrests and more than $4 billion in recovered property.

This all sounds very good, and I support the organization, but let’s dig deeper into the motivational aspects of why someone would phone in an anonymous tip to Crime Stoppers.  Someone who really wanted to do their “civic duty” would go directly to the police, and if they’re afraid of “involvement” or retribution, they can still remain anonymous.  Given that anyone can provide an anonymous tip directly to the police, the real attraction of Crime Stoppers is the cash.  Here are some examples from Crime Stoppers organizations across the country.  The payouts are all conditioned upon either an arrest or an indictment or both.

This from the Topeka, KS Crime Stoppers website:
Topeka Crimestoppers

And  here is a random sampling of the rewards offered by Crime Stoppers organizations across the country:

Crime Stoppers of Michigan$1,000

Texas Crime Stoppers – $50,000

Crime Stoppers of Tampa Bay$1,000

NYPD Crime Stoppers – $10,000, $2,000, $1,000, or $500 – depending on the crime

The problem here is that people can be tempted to provide information, even if it’s false, just to get the payout.  It happens – just like jailhouse snitches will provide false information to get a deal from the prosecutor.

Continue reading

Compromised Justice? Selling Case Details to Would-be Snitches

A must-read USA Today report published on December 14 (here) places a spotlight on a process rarely revealed to those outside the justice system: The role of the snitch in making federal cases…and in reducing sentences. While DNA proven wrongful convictions have shown that snitches can be a questionable source for information, the use of snitches continues to be widespread. So much so that credible case information is a currency for getting out of jail sooner.

Imprisoned bank robber Marcus Watkins is not the first to recognize that there could be a profitable business in selling case details to defendants and convicts desperate to reduce their sentences. Continue reading

Singapore: Court to Review 2011 Conviction Based on New Medical Evidence

The Singapore High Court has ordered a review of a 2011 conviction against C. Bala Murugan for the offences of rape and aggravated outrage of modesty based on new medical evidence produced by the convicted person to show that he suffered from erectile dysfunction at the time of the 2006 offences.

Victims try to prevent a wrongful conviction in Barbados

ImageTwo women from the UK are trying to prevent the conviction of a man in Barbados for their sexual assaults. Both victims are ‘absolutely convinced’ that the Barbados police have got the wrong man. The man ‘confessed’ to the crime, a confession he has now retracted. The Barabados police claim that there is a lot of other evidence to support the prosecution of the man for the attacks, but in the last 18months, have failed to reveal this other evidence. Both women are speaking out and have revealed their identities in the desperate hope that they can prevent this wrongful conviction. Read the full shocking story here….

Landmark Singapore Case: Muhammad bin Kadar and another v Public Prosecutor

This is a slightly delayed post on an important 2011 decision by the Singapore Court of Appeal which addresses the duties of investigators and prosecutors, and which will have important implications on the prevention of wrongful convictions.

In the case of Muhammad bin Kadar and another v Public Prosecutor [2011] SGCA 32, the Singapore Court of Appeal overturned the conviction of one of the accused, Ismil Kadar. Among others, the Court found that the investigator had failed to observe legal and administrative procedure without good reason when recording Ismil’s statements.

The Court was also critical of the Prosecution’s conduct, noting that it had failed to provide “vital” pieces of evidence to the Defence and the Court in a timely manner. It highlighted the important role played by the Prosecution:

“[…] the duty of the Prosecution is not to secure a conviction at all costs. Rather, the Prosecution owes a duty to the court and to the wider public to ensure that only the guilty are convicted, and that all relevant material is placed before the court to assist it in its determination of the truth.”

Monday’s Quick Clicks…

  •  Worried about wrongful convictions, High Court in Bombay, India rules that a conviction cannot be based solely on a dying declaration
  • Federal judge criticizes a prosecutor for his role in a wrongful conviction case
  • Honoring the role of defense attorneys in New Zealand
  • Video of John Montgomery’s family thanking the Mid-Atlantic Innocence Project
  • Exoneree Jerry Hobbs’ lawsuit against Chicago area prosecutor continues to move forward
  • State Rep. Jamilah Nasheed urges Missouri AG to drop appeal of exoneration of George Allen
  • Discussion of recent symposium on false confessions held at Temple Law School and sponsored by the Pennsylvania Innocence Project
  • Erie County, New York District Attorney Frank A. Sedita III is looking into the possibility that a man who pleaded guilty six years ago to a double murder on Buffalo’s West Side was wrongfully convicted.  Sedita said he became aware of the possibility about a week ago, when he learned that federal authorities were charging three other men with the murders of Nelson and Miguel Camacho in 2004.  Josue D. Ortiz, the man originally convicted in the killings, has spent the past six years in prison.

Compensation for the Wrongfully Convicted

Studying other legal systems enables us to look back and clearly assess what is wrong with our own system. When I first started working for the Innocence Project Northwest last year, I was shocked to learn that the State of Washington has no law that ensures  compensation to the wrongfully convicted (read the details here). In fact, many of the states in the US still have no compensation law (read the details here).

What about other countries? Here is the situation in Japan.

The Constitution of Japan (which was drafted after the WWII under the US occupation) states in Article 40: ” Any person, in case he is acquitted after he has been arrested or detained, may sue the State for redress as provided by law“.  It ensures one the right to sue the State to get compensation in case he was wrongfully arrested or detained. In response to this Article, the Criminal Compensation Act (1950) specifies the details of the compensation.

Article 4 of the Act provides that the amount of compensation given will be decided by the court. The court shall set the rate of compensation by considering how the person was detained, the length of detention, the person’s loss of property, physical and mental pain he/ she had to suffer, and negligence by the police and prosecutors.  The minimum daily rate is 1,000 yen (12.5 USD) per day he/ she was detained, and the maximum is 12,500 yen (about 155 USD).  See the table below for the amount given to exonerees in past cases.

The wrongfully arrested/ detained can also file a lawsuit against the State under  the State Redress Act (Act No. 125 of 1947).  However, to win the lawsuit, the plaintiff must prove that ”a public officer who exercises the public authority of the State or of a
public entity has, in the course of his/her duties, unlawfully inflicted damage
on another person intentionally or negligently” (Art. 1 of the Redress Act. Emphasis added. Translation by Japanese Law Translation).

It is extremly hard to prove the intention or negligence of the public officer since the State has all the evidence about the case, and the lawsuit takes a lot of time and resources. Only about 6% of the lawsuits under the Redress Act end in favor of the plaintiff. This system needs much reform.

So how much compensation will Govinda Mainali (recent exoneree) get for his 15 years of detention? Here’s an article by Daily Yomiuri Online.

From Daily Yomiuri Online.

Excerpt: Chihiro Iwasaki and Kotaro Kodama / Yomiuri Shimbun Staff Writers