False Evidence, DNA, and Innocence

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Jason Kuznicki

Jason Kuznicki is a research fellow at the Cato Institute and contributor of Cato Unbound. He's on twitter as JasonKuznicki. His interests include political theory and history.

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  1. Avatar Pierre Corneille
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    First of all, I agree that innocent people can and do confess to crimes they didn’t commit, and on some level, I can even understand that. I know, for example, that I can be very suggestible and under the right circumstances can be convinced to say or even believe a large number of things that I know are false.

    Second, and this is only a tangential point to the post but something I’ve wondered about: can DNA evidence really establish innocence? It seems to me that a lack of DNA only proves that there is no biological evidence that the accused was at the scene of the crime; it does not, by itself, counteract other evidence that might suggest he or she was there.

    I don’t bring this up as a way of complaint–I suspect a lot, or maybe even most, people freed by DNA evidence are probably innocent (and I suspect that such evidence is more compelling in some cases, like rape cases, where one might expect the true assailant’s DNA to be present in the exclusion of the innocent person’s). I’m just curious…is there something I’m missing when it comes to DNA evidence and how it is used and what its probative value is?Report

    • Avatar Jason Kuznicki in reply to Pierre Corneille
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      Establishing innocence is never required. Establishing reasonable doubt is all that defendants need to do.Report

    • Avatar North in reply to Pierre Corneille
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      I don’t think they, say, sweep the crime scene and say “Ahah! No DNA evidence of Jethro’s being here, he must be innocent”. But if they do a DNA check of the available evidence and that evidence very strongly suggests that Cletus was involved that is rather difinitive that Jethro was not.

      Also DNA evidence also causes the entire case to be re-reviewed and often on re-review the case against people in situations where DNA suggests an alternative culprit almost always seems to collapse when the wheels are kicked.Report

      • Avatar Rufus F. in reply to North
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        My understanding of it is that it’s also really hard to be in any location and come into contact with anything and not leave behind some DNA evidence. So it does really create doubt when none is found. Also my understanding is there wasn’t any other physical evidence linking them to the scene.Report

        • Avatar Plinko in reply to Rufus F.
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          I am not so sure this is an accurate view of things – or so my daily Balko reading leads me to believe. There is no DNA-testable evidence presented in the larger portion of violent crime cases. I’m sure there’s some semantic issue involved, mainly that it’s uncommon to have evidence that you know belongs to the perpetrator or something like that.

          That’s what gets to disturbing about the exoneration cases where there is evidence to check – the knowledge that there are surely tens or maybe even hundreds of innocent people in prison for every one that DNA evidence clears.Report

  2. Avatar Elias Isquith
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    Good stuff, Jason. Thanks for flagging this story; it’s been going around the office today, hopefully it’s going mainstream.Report

  3. Avatar Tod Kelly
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    That’s two really great posts in a row, JK. And can I just bitch for a bit about the news media?

    Why the fish is it that I can’t get through a day of listing to very little news radio and even less TV news being inundated with sensationalized crime/court stories about guys like Scot Peterson, that go over each tiny little detail of the reporters read of the judges face after the attorney said X…

    and this is the first fishing time I have this story? Seriously, I find that offensive.Report

    • Avatar Mark Thompson in reply to Tod Kelly
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      While we’re venting…..why is it that whenever someone is acquitted or gets a mistrial declared against them, the media’s response is almost universally to blame some combination of: 1. the defense attorney (who, clearly, must be a weasel to defend such heinous criminals, much less try to get them acquitted); 2. the judge (who, clearly, must be more interested in mere technicalities like the rules of evidence and the 4th and 5th Amendments than in making sure justice is done); 3. the jury (clearly uneducated imbeciles); and, of course, 4: the defendant (since he/she is clearly guilty, they must have done SOMETHING underhanded to get away with it!).

      Never, NEVER, do the prosecutors get blamed for bringing a weak case, or for failing to produce admissible (ie, reliable) evidence, or for generally failing to make good legal arguments. To the contrary, such prosecutors get rewarded by the media with jobs as “legal analysts.” And that says nothing about the lack of blame laid upon the police who collected the evidence in a way that either made it legally unreliable (ie, inadmissible) or might have led them to the wrong conclusions.Report

    • Avatar Elias Isquith in reply to Tod Kelly
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      I’d say the reason the news is sensationalistic and devoid of valuable content is because it’s for-profit.Report

      • Avatar Tod Kelly in reply to Elias Isquith
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        I know, but I liked it better when I was growing up and there was at least a shred of illusion that importance was important, if you will.

        I’m going to take a shot in the dark that 18 years ago the media was happy to over-cover “Satanic ritual murders.” (I can’t even read that phrase silently without hearing them drawled by Vincent Price.)Report

      • Avatar Mark Thompson in reply to Elias Isquith
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        There is in fact a good amount of truth to this statement I suspect. Then again, the other way of saying the exact same thing is to say “the reason the news is sensationalistic and devoid of valuable content is because it’s what the largest number of people want to see/read.”

        Nor am I certain that the alternatives are necessarily better. First, the distinction between a private non-profit and a private for-profit entity just isn’t as large as we’d like to think (e.g., I can make a pretty good argument that the difference between a BCS school, public or private, and an NFL football team is that the BCS school does a better job maximizing its football profits). Plus, for every BBC (certainly one of the less sensationalistic and more reliable news organizations in the world), I can show any number of state-run propaganda outlets with media monopolies or near-monopolies.Report

    • Avatar ThatPirateGuy in reply to Tod Kelly
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      As a Memphis resident I had thought they had been released a decade ago. I didn’t know they were still there till yesterday.Report

  4. Avatar Patrick Cahalan
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    When Jack gets to be about 10 years old, we’re going to have a long talk about interacting with the police.Report

  5. Avatar Rufus F.
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    Another thing that was pretty astounding about the confession that was basically at the center of the state’s case was that it came from a borderline retarded kid during a twelve hour interrogation session in which only about one and a half hours were actually recorded. For over ten hours of interrogation, there’s no record.Report

  6. Avatar Joe Carter
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    The kid also (allegedly) confessed to a police officer before he was questioned by the detectives.

    The take-away from this is that if you commit a crime and have a low IQ, the optimal strategy is to confess and later recant. The police will then have the burden of proof that they *did not* coerce you and you will instantly have thousands of people (including celebrities!) willing to help exonerate you.

    By the way, the other two were tried separately and Misskelley’s confession was inadmissible. All three were convicted. Upon appeal their convictions were reviewed—and upheld. The only reason they got an additional hearing was because of the “CSI-effect.” Since no DNA evidence was found at the scene of the crime that could be linked to the defendants, they will not go free.Report

    • Avatar Mark Thompson in reply to Joe Carter
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      Since no DNA evidence was found at the scene of the crime that could be linked to the defendants, they will not go free.

      Assuming you meant “they will go free,” this does not sound at all correct. It is not the lack of DNA evidence that exonerates them; it is the presence of DNA evidence pointing at others that does.Report

      • Avatar Joe Carter in reply to Mark Thompson
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        Oops. Yeah, I meant “they will go free.”

        The presence of DNA evidence pointing at others is not what is exonerating them. The people whose DNA was found are not being considered suspects in the case.Report

        • Avatar Jaybird in reply to Joe Carter
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          So only an indictment of Bob Ewell would convince you that Tom Robinson didn’t do it?Report

          • Avatar Jason Kuznicki in reply to Jaybird
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            I hate to repeat myself, but again: We’re not looking for certainty that they didn’t do it. We’re looking for reasonable doubt. I’d say that the many, many prosecutorial errors combined with the lack of DNA evidence are enough.Report

            • Avatar Jaybird in reply to Jason Kuznicki
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              Fair enough and good point.

              The fact that the Prosecution was willing to make the deal at all establishes sufficient reasonable doubt for me.Report

              • Avatar Joe Carter in reply to Jaybird
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                Setting aside the merits of this case, it does provide an intriguing example of information asymmetry. If the Prosecution is willing to make a deal, it means that they think there is a high probability of an acquittal.

                But if the Defense believed that the chances of acquittal were as high as the Prosecution does, shouldn’t they seek a retrial?

                Obviously, the Defense has more to lose. But if it is true that the men are not getting off and could thrown back in prison at any time, shouldn’t they take a chance?Report

              • Avatar Jaybird in reply to Joe Carter
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                But if it is true that the men are not getting off and could thrown back in prison at any time, shouldn’t they take a chance?

                If it were 1993, I might agree with you.

                After 18 years in the clink?Report

              • Avatar Tod Kelly in reply to Joe Carter
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                “But if the Defense believed that the chances of acquittal were as high as the Prosecution does, shouldn’t they seek a retrial?”

                No way, or at least not if it was me. Walk now with time served on lesser charges, or wait to see if i go back on death row or life behind bars? I totally take that, guilty or innocent.Report

              • Avatar Joe Carter in reply to Tod Kelly
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                That’s a good point. I had forgotten that two of them were on death row. If the choice is between a conditional freedom or a possibility to be put to death, I’d definitely choose the former too.Report

              • Avatar Mark Thompson in reply to Joe Carter
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                Not necessarily, no. Taking a chance most likely means “remain in prison pending completion of re-trial.” Moreover, it is a fairly rare case where the benefits of an acquittal outweigh the risks of prison, however small those risks. You’d be surprised how easily a blatantly, provably innocent person can be convinced to take a plea deal for time served. I’ve seen it in person, and the fact is that it takes precious little.

                Rarer still is the case, civil or criminal, where standing on principle is a good reason to fight on.

                Additionally, we’re dealing with a high-profile case here. Whether the defendants need to check a box on an employment application is basically meaningless to them – in all likelihood, just about anyone who might employ them post-release is going to know their story or find it readily. Even if they don’t know that story, a nearly two-decade hole in one’s resume can’t be easily hidden.

                Fact is, jury trials are partially a crapshoot. The odds of any side winning before a jury may not always be a coin flip, but they’re also not completely aligned with the proper weight of the evidence in a given case.Report

  7. Avatar DensityDuck
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    Please do not describe this situation as “the men went free”. They’re “going free” in the sense that anyone who is released on parole “goes free”.

    They are not being declared innocent.

    They are not being given a new trial (and, in fact, one of the terms of their “agreement” is that they won’t seek a new trial and won’t sue in civil court.)

    They are, henceforth, required to put “yes” in the box that asks “have you ever been convicted of a felony crime?”

    They won’t receive any kind of restitution for the 18 years they spent in prison.

    And, in fact, the state reserves the right to throw them back in prison any time it wants to.

    This whole thing is fucked up. The prosecutor himself said “if we gave them another trial they’d probably be acquitted, so we rushed this whole thing through.” I did like how, in his statement, he was very careful to make no claim as to the men’s guilt or innocence; only whether or not The State Could Be Proven Wrong.Report

    • Avatar wardsmith in reply to DensityDuck
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      he was very careful to make no claim as to the men’s guilt or innocence; only whether or not The State Could Be Proven Wrong.

      Lawyers are trained to think and speak this way. Should they start concerning themselves with esoteric concepts like innocence and justice – there lies insanity…

      Notice what Jason keeps saying above, “beyond reasonable doubt”. That’s the bar and given the maladroit nature of our legal system (OJ Simpson) /proving/ guilt is virtually impossible, unless of course the criminal was kind enough to videotape himself while giving a complete running commentary, AND a confession, AND sworn statements from his psychiatrists that he is and was perfectly sane at all times. Even then, a little old lady from Pasadena would happily set him free because he reminds her of her grandson.Report

      • Avatar Joe Carter in reply to wardsmith
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        Great point! I wonder if it wasn’t easier for justice to be done prior to the days of TV and film. We’ve now seen so many police procedurals, CSI shows, and movies about trials that we have a false sense of how the process is supposed to work. “Reasonable doubt” is not longer so reasonable.Report

        • Avatar Joe Carter in reply to Joe Carter
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          Aargh. *no* longer so reasonable.

          I always notice my typos just as my finger is hitting the “send” button. Never fails.Report

        • Avatar Tod Kelly in reply to Joe Carter
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          I’m not sure this is true. I think that the same fallibility that makes humans commit crimes makes it hard to truly mete out justice the way we like to think we do (or did).

          I think we tend to think that we are always choosing between convicting the innocent vs. letting the guilty walk, but I suspect that some measure of each occurs regardless of the times.Report

      • Avatar DensityDuck in reply to wardsmith
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        Take it easy, there, Batman.Report

      • Avatar Chris in reply to wardsmith
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        Strange, then, the number of people in our prisons.Report

        • Avatar Chris in reply to Chris
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          I should have added: must be a whole hell of a lot of people video taping their crimes.Report

        • Avatar Joe Carter in reply to Chris
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          How many people in prison do you think went to trial? I’ve never seen statistics on the matter, but I would suspect that the vast majority plea-bargained their way into jail. I wonder if we’d have the same incarceration rate if every person accused had to actually receive a trial by a jury of their peers?

          Of course, if that were the process, juries would eventually see so many obviously guilty people (assuming that if they were willing to cop a plea that they knew the evidence was against them) that they might swing the other way and be harsher, rather than lenient. That’s probably not the optimal outcome either.Report

          • Avatar Chris in reply to Joe Carter
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            If I remember correctly, the conviction rate for felonies in the U.S. for cases that go to trial is still over 70%. I think it’s higher for bench trials than jury trials, but not so much higher that you’d think there’s a huge CSI effect. Seventy percent is pretty high for the western world. It’s no Japan, but it looks a lot like Western Europe. Also, and I’m stating this from memory, so I could be wrong, if charged with a felony, you’re more likely to be convicted of one if you go to trial than if you plead. What’s more, your penalties are likely to be significantly stiffer for the same crime if you go to trial.

            All this CSI effect nonsense sounds to me like the “ooh, crime” scare tactics of the 80s and 90s.Report

            • Avatar wardsmith in reply to Chris
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              Cross-post from sub blog on right:
              @Mark, Actually I believe I mentioned previously that I’m friends with the local prosecutor. The ‘current’ CSI effect is quite the opposite. Because of the series, everyone assumes armies of brilliant qualified scientists are swarming every scene finding every scintilla of evidence, re-enacting shootings with laser beams, allowing pig carcasses to rot so bugs can be examined, the whole shebang. The harsh reality is that no one but a highly successful and profitable tv show could afford this, the local CSI person!! is shared across 5 counties and DNA evidence is sent to the state lab where there is a 5 month backlog, well longer than most cases that go to trial. This is the reality in one of the wealthier states in this country, Arkansas doesn’t qualify in the top 40.

              It would be wonderful if we all had world-class CSI investigation capabilities. The sad truth is it doesn’t even exist – anywhere.Report

      • Avatar Rev.Blue Moon in reply to wardsmith
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        wardsmith, are you serious about this? Even though the Casey Anthony case was one of the weakest I have seen as a professional, I still had my Facebook feed blowing up about how “outrageous” that verdict was. People do not understand what “beyond a reasonable doubt” means, but not in a way that buttresses your point.Report

    • Avatar Jason Kuznicki in reply to DensityDuck
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      These are fair points all around.Report

  8. Avatar Jason Kuznicki
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    I am surprised how much attention has been given to the West Memphis Three, and how little to the not-entirely-related point about false evidence and other forms of extracting confessions from people who turn out not to be guilty.

    What do folks here think? Is it actually okay for prosecutors to lie to get confessions? Not saying they did it in West Memphis, mind you, because with the poor recordkeeping, we may never know. But still — thou shalt not lie? Or does necessity demand it here?Report

    • Avatar Jaybird in reply to Jason Kuznicki
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      Innocent of what?

      If they didn’t do this crime, they did a different one. The important thing is to get them off of the street.

      What about the guy who did this one then? Well, we’ll get him sooner or later and put him away too.Report

    • Avatar DensityDuck in reply to Jason Kuznicki
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      Do you honestly expect anyone who comes here to post in favor of prosecutorial misconduct?Report

      • Avatar Plinko in reply to DensityDuck
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        But according to current case lay, it’s NOT misconduct, it’s not even questionably legal. It’s straight up OK for them to completely fabricate facts in an interrogation.

        On Jason’s question, I can’t come up with a reason why it’s OK for officers to use lies to get confessions. The practice disgusts me. Even if they didn’t have that tool, they have more than enough coercive tactics in the box to pull out as it is.Report

      • Avatar Jason Kuznicki in reply to DensityDuck
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        Do you honestly expect anyone who comes here to post in favor of prosecutorial misconduct?

        I try never to be surprised by what people favor around here. And those posting in favor of false evidence claims would surely not frame them as “misconduct.”Report

    • Avatar Patrick Cahalan in reply to Jason Kuznicki
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      This is a hard question. Really good interrogators probably don’t need to rely on false representation any more than they need to rely upon torture.

      But there’s probably not enough really good interrogators to go around.

      This is one of those sticky real-world problems that even practicaltarians have problems resolving.

      In practice, I think everyone should shut the hell up and say “I need to speak to my attorney” and nothing else if confronted by a law enforcement person. But like I pointed out on the thread on bankers and rioters, just because I think somebody “should” act a certain way is not a good reason to assume that they “will” act that way. Because demonstrably, people talk to the police (just like demonstrably, they’re bad at math).

      Given that this is the case, and given that courts and juries are very inconsistent in how they approach confessions and such, it is very difficult for me to say that I think misrepresentation by the police ought to be a permissible form of interrogation.Report

    • Avatar Joe Carter in reply to Jason Kuznicki
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      ***Is it actually okay for prosecutors to lie to get confessions? ***

      I think that question may need to be unpacked a bit. What types of lies are we talking about? If a cop says, “I know the gun is yours” when he doesn’t technically *know* it, does that constitute as a lie?

      I also have a hard time wrapping my head around the false confessions thing. I understand that there is empirical evidence that it happens. But if I knew I was innocent I can’t imagine what sort of lie the cops could tell me to convince me to confess.Report

      • Avatar Jaybird in reply to Joe Carter
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        If you plead guilty, we’ll give you two years, tops (probably probation), and it’ll save you time and hassle and money… because if you plead innocent, we’ll take you to trial, we’ll get a conviction, we’ll send you to the slammer for 10 years, you’ll get raped every day for 3652 days, you’ll get out with AIDS, your wife will have remarried by then, your kids will be married for the first time, and the only skill you’ll remember is how to pass that little virus along.Report

        • Avatar Mike Schilling in reply to Jaybird
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          And you’re going to be particularly susceptible to that if you’ve spent your life seeing the cops act like arbitrary tyrants. (The fact that your overworked PD tells you to strongly consider pleading out helps too.)

          There’s an episode of Homicide where G wants a case solved before suspicion falls on one of his fellow cops. Pembleton browbeats an obviously innocent kid into signing a confession, then throws it it in G’s face and asks “Is this what you wanted?”Report

      • Avatar Chris in reply to Joe Carter
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        There’s a ton of empirical evidence showing not only that it happens, but how and why. And no one thinks they would do it.Report

      • Avatar Patrick Cahalan in reply to Joe Carter
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        > I also have a hard time wrapping my head
        > around the false confessions thing. I understand
        > that there is empirical evidence that it happens.
        > But if I knew I was innocent I can’t imagine
        > what sort of lie the cops could tell me to
        > convince me to confess.

        This reminds me of exactly this comment.Report

        • Avatar Joe Carter in reply to Patrick Cahalan
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          That’s an interesting connection. I’d love to see a post/article on the similarities between false confessions and unaffordable mortgages and how people we presume to have special knowledge can convince us to make irrational choices.Report

          • Avatar Stillwater in reply to Joe Carter
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            The connection is a general ignorance of how a system works coupled with the presence of an Authority who does understand it. People who are unsure of themselves will often defer to authority in these cases. Especially as the pressure is ratcheted up.Report

        • Avatar Jason Kuznicki in reply to Patrick Cahalan
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          I suppose I have a great deal of sympathy for people who are suffering — and they are suffering — during a police interrogation.

          I don’t have any sympathy for people who hope to get something for nothing.

          And no, I don’t find those feelings incompatible in the least.Report

          • Avatar Patrick Cahalan in reply to Jason Kuznicki
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            I see it as a general lack of empathy with people who are working with incomplete information in one case, and empathy with people who are working with incomplete information inside a decidedly unbalanced power relationship in the other.

            You’re focused on the unbalanced power relationship; that’s fair enough, I get that and can see where you’re coming from.

            I’m focused on the incomplete information.

            From that focus, there is a very precise correlation between the unclued-in investor and the unclued-in subject of the interrogation. Both of them are receiving bad information. One may be more cowed by the guy with the uniform and the gun, but the fact remains that authority figures are authority figures, gun or no.

            Indeed, we know that the person being interrogated can *simply clam up and demand to see a lawyer*. Just like we know the investor can simply tell his loan officer to shut up and take the time out to learn more about investment risk before signing on the dotted line.

            And yet, it’s empirically evident that given a large population, lots of people will fail to take the available exit that the system already provides them, and instead screw themselves.Report

            • Avatar wardsmith in reply to Patrick Cahalan
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              Just like we know the investor can simply tell his loan officer to shut up and take the time out to learn more about investment risk before signing on the dotted line.

              The “risk” in those loans was borne by the bank and ultimately the poor schmucks who believed those AAA ratings from S&P and Moody’s on the piles of excrement called CDO’s. Plenty of “signers” got to live rent free in houses far beyond their means – some are still there now, perhaps never to be foreclosed.. The old saw, “If you owe the bank $1000 you have a problem; if you owe the bank $1M, the bank has a problem” holds true.Report

              • Avatar Mike Schilling in reply to wardsmith
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                And the profit was made by the people who sold and packaged the loans. And they knew *exactly* what they were doing. No one ever gets mad at them, though. Capitalism, what a system!Report

              • Avatar Stillwater in reply to Mike Schilling
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                That the ‘market makers’ who repackaged and sold the loans were the ones who shorted them isn’t relevant Mike. It’s the suckers who believed Goldman’s lies that deserve the blame. And Country Wide’s too! I mean, no one held a gun to anyone’s head, right?Report

          • I don’t have any sympathy for people who hope to get something for nothing.

            In an ideal world, if we were angels (and I’ll admit I’m not), I would like to imagine that I would have sympathy for someone who made foolish, even greed-driven choices, and who now has had their comeuppance and is suffering great distress from those decisions.

            Does that mean we need to bail them out or give them a pension or a fresh start? Maybe not and maybe it depends. Still, I’d like to see some sympathy for people who choose poorly.

            But again, I’m no angel myself.Report

            • Avatar Stillwater in reply to Pierre Corneille
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              Still, I’d like to see some sympathy for people who choose poorly.

              What does it mean to ‘choose poorly’? Does it mean that the balance of evidence splits evenly down the middle between buy or not buy, and you flip a coin as the deciding variable? Or is it that people who are in a position of trust present a false picture in order to get you to decide one way or another, and you ‘chose poorly’ by deciding to believe what they told you?Report

              • Avatar Pierre Corneille in reply to Stillwater
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                I meant to put the construction on it least favorable to the one(s) who chose poorly and claim that nevertheless, I’d like to see some sympathy for people who suffer.

                Under the situation you describe–people in a position of trust presenting a false picture, etc.–then of course, I think those people should merit sympathy.

                My comment was aimed at those who have benefited well from life and who do not seem to be able to acknowledge that sometimes people make mistakes and who claim that such people ought be granted “no sympathy,” come what may.

                Forsooth, of course, the “no sympathy” people might make a miscalculation and find themselves on the other side of the fence and find no sympathy, either. Or maybe they’ll never make an error, and then they’ll be able to die rich and happy, muttering “no sympathy” on their death beds.Report

              • Avatar Stillwater in reply to Pierre Corneille
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                My comment was aimed at those who have benefited well from life and who do not seem to be able to acknowledge that sometimes people make mistakes and who claim that such people ought be granted “no sympathy,” come what may.

                Yup. That’s not quite what I thought you were getting at – in fact, categorically different!

                And I agree. This goes back a ways to some of the discussion on luck and deserts, and how to what extent individual outcomes can be justifiably laid on the shoulders of the individual qua individual .

                I think it’s an interesting anthropological question why some people are reflexively opposed to having sympathy for their neighbor, when the factors differentiating the two are slim as a silk thread. Yet the blame and lack of empathy not only exists, but has become – for some people – the defining feature of their world view.Report

              • Avatar Pierre Corneille in reply to Stillwater
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                Thanks for your thoughtful response to my comment. I agree.

                I should say (and this is directed at Mr. Kuzinicki), now that I’ve had time to think over what I wrote above, that I think I was being too personal in my comment and apologize for that.Report

              • Avatar Jason Kuznicki in reply to Stillwater
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                I find it interesting — in the anthropological sense, and possibly in the psychiatric as well — that some people wish so strongly to divorce bad choices from their consequences.

                It’s an interesting question why they want to do this. And often, it’s the defining feature of a worldview.Report

              • Yes, I’m often surprised at how often I catch myself blaming others or “the system” for choices that I made. Still, I think I try to acknowledge when it is I and not someone else who has erred.Report

              • Avatar Mike Schilling in reply to Jason Kuznicki
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                I have less sympathy for con men than for their marks.Report

              • Avatar Jason Kuznicki in reply to Jason Kuznicki
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                I have less sympathy for con men than for their marks.

                And you imagine, preciously, that this distinguishes yourself from Mr. Dalrymple.

                Reading comprehension would take care of that, you know.Report

              • Avatar Mike Schilling in reply to Jason Kuznicki
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                You thought I was talking about Dalrymple? A guy whose name hadn’t appeared in this thread even once? Weird.Report

              • Avatar Stillwater in reply to Jason Kuznicki
                Ignored
                says:

                Jason: do you feel any tension between blaming cops and DAs for deliberately misrepresenting important information and absolving loan officers and ‘market makers’ for deliberately misrepresenting important information, when the purpose in each case is merely to ‘close the deal’?

                Cuz I think there’s a tension here. On your view, what makes the two cases dis-analogous?Report

              • Avatar Jason Kuznicki in reply to Jason Kuznicki
                Ignored
                says:

                You thought I was talking about Dalrymple? A guy whose name hadn’t appeared in this thread even once? Weird.

                He was the one I quoted approvingly in the other post, which you were most certainly referencing.

                If this is not what you were talking about, then what was it?Report

              • Avatar Jason Kuznicki in reply to Jason Kuznicki
                Ignored
                says:

                Jason: do you feel any tension between blaming cops and DAs for deliberately misrepresenting important information and absolving loan officers and ‘market makers’ for deliberately misrepresenting important information, when the purpose in each case is merely to ‘close the deal’?

                I feel no tension at all on this point, because it has never been my intent to absolve bankers for deliberate misrepresentation. That’s the imaginary Jason in your head, the one you’d clearly prefer to be arguing with.

                I’d say that quite a few bankers are indeed culpable on this point, as I have stated repeatedly, and as you have repeatedly ignored.Report

              • Avatar Stillwater in reply to Jason Kuznicki
                Ignored
                says:

                You said you have no sympathy for people who hope to get something for nothing, right? Was that comment directed at the cops/DAs/closing agents/mortgage repackagers, who are indeed trying to get ‘something for nothing’? Or was it directed at suspects/clients?

                I really don’t see any way to read this except as you shifting the blame onto people who were effectively lied to.Report

              • Avatar Jason Kuznicki in reply to Jason Kuznicki
                Ignored
                says:

                You said you have no sympathy for people who hope to get something for nothing, right? Was that comment directed at the cops/DAs/closing agents/mortgage repackagers, who are indeed trying to get ‘something for nothing’? Or was it directed at suspects/clients?

                I really don’t see any way to read this except as you shifting the blame onto people who were effectively lied to.

                At the time I wrote the comment, I did not have the cops/prosecutors in mind. I do suppose now it applies to them, yes. The people I had most clearly in mind at the time were those who foolishly speculated on the supposition that the housing market would continue to rise forever. Particularly those who took out mortgages that they ought to have known could not be repaid, given their finances as they stood.

                I truly don’t understand why condemning such stupidity entails exonerating dishonest mortgage lenders. It just doesn’t add up.Report

              • Avatar Mike Schilling in reply to Jason Kuznicki
                Ignored
                says:

                I was referring specifically to your #81: in particular, its lack of context for what might have led to the bad choices. Though now that I look again at what you quoted from Dalrymple, it’s pretty silly. Making loans you know to be bad is fraud, and excusing it as “improvidence” is, to use his word, alarming.Report

          • Avatar Mike Schilling in reply to Jason Kuznicki
            Ignored
            says:

            I don’t have any sympathy for people who hope to get something for nothing.

            Like people who want government services without paying taxes to get them? Me too.Report

    • Avatar trizzlor in reply to Jason Kuznicki
      Ignored
      says:

      Trying to play devil’s advocate, I think one way interrogators can use lie-induced confessions effectively is to have the defendant also demonstrate something that would only be of knowledge to the killer, in effect proving the confession. Obviously, if a body is found because of a lie-induced confession that evidence should stand.

      I think I would be comfortable with a compromise where evidence gleaned as a result of such a confession can be used in the trial, but the confession itself cannot be used against the defendant. I think this is the way Miranda works right now – you do not have to Mirandize a suspect to use his statements as evidence, but you cannot use them to incriminate the suspect.

      Obviously, if there was ample scientific evidence that such confessions bring significant lasting mental harm on the suspect, I’d have to re-evaluate such a technique as potentially psychological torture.Report

      • Avatar David Cheatham in reply to trizzlor
        Ignored
        says:

        Yes, I agree completely. I have no problems with all sorts of crazy tricks to get the suspect to reveal facts they don’t know (1), or point to other evidence. I’ll all for any sort of lies and trickery to get that, because someone can’t panic and _falsely_ reveal where they buried the body. If someone blurts that out, it doesn’t matter how we got them to do it. (Barring, obviously, torture, which is such a horrible thing that we would demand they get set free to keep from setting up any sort of torture regime. Or, at least, that’s the theory.)

        However, we have plenty of evidence that people will _confess_ to all sorts of nonsense if you get them in the right psychological state. Frankly, I’m this close to saying ‘No confessions should be allowed, period’. (And certainly no non-documented confessions. I’m sorry, if you’re not recording, the suspect didn’t say it, period.)

        The problem is, of course, the court system is so overburdened and underfunded that, without a huge amount of confessions and pleas, it would immediately fall apart. (Instead of the slow several-decade-long falling apart it’s doing now.)

        1) Which is why we should _absolutely_ record every moment of an interrogation, so we can say ‘Hey, look, he just said the murder weapon was a shovel, and we’ve only told him and the media it was a blunt object’, and actually have some sort of proof that somewhere in the four hour interrogation that no one _did_ say it was a shovel.Report

        • Avatar trizzlor in reply to David Cheatham
          Ignored
          says:

          I think this gets at a larger point that all interrogation is, essentially, a form of deception. When the interrogator says “I’m just trying to help you out” he’s lying; when he pairs up with another to play good-cop/bad-cop he’s lying; when he attempts to establish a relationship with mutual trust he’s lying. Yet all of these are techniques that we generally consider to be “good” police-work. So distinguishing between a good lie and a bad lie isn’t actually a trivial matter (although, I guess you know it when you see it).Report

    • Avatar Murali in reply to Jason Kuznicki
      Ignored
      says:

      Hell, Horatio Cain gets by with so much shit that its a wonder that he has not been shut down yet.Report

  9. Avatar David Cheatham
    Ignored
    says:

    What I find astonishing is that the police use the fact they lies as part of the justification for not recording all interactions with defendents.

    Apparently, juries really really don’t like it when grab a random suspect, you lie to them, and they confess, and that’s the entire case. They don’t like it at all.

    A lot of the problem with our justice system is that we’ve decided to restrict the information that juries know. I think that juries should have _every_ fact the defendant wants them to hear. Every single ones. The prosecutor, yes, should have to go through a filter and not be allowed to introduce certain evidence, but the defendant should be allowed to present any actually true fact as evidence.

    Otherwise we get evidence that ‘They signed a confession’ and not ‘They signed a confession because of this 10 hour long interrogation, which we will now play for the jury, and see how the jury feels at the end of it.’.

    It also comes into effect in other places, where society considers certain things migrating factors and is hesitate to convict those people. Like someone with unmanageable pain rarely gets convicted of pot smoking even in places without medical marijuana. Solution: The law forbids them from mentioning their medical issues.

    At some point we decided that juries were being too nice, and took way too many things away from them, including knowledge of actual facts.Report

    • Avatar Jason Kuznicki in reply to David Cheatham
      Ignored
      says:

      While I’m sympathetic to this approach, the trouble lies in determining which are the “actual facts.” Often a criminal case turns on precisely which narrative the jury thinks is more factual — the defendant’s or the prosecution’s.

      Still, no assertion of fact has a virgin birth. It would be good to know more about what elicited a confession, or how evidence was gathered, or the like. And yet — where do we draw the boundaries of relevance?Report

      • Avatar David Cheatham in reply to Jason Kuznicki
        Ignored
        says:

        Like I said, I’m of the opinion that the defendant ought to be able to expand the bounds to whatever point he feels like.

        Of course, expanding the boundaries would also mean the prosecution gets those expanded bounds in that case also. If the defendant claims they smoke pot to relieve pain, the prosecution can introduce evidence that they were convicted of possession previously, well before the pain supposedly started. Or that they do not, in fact, have any pain.

        I think to have any sort of legal system, we have to allow defendants to make any sort of arguments they want and prove any sort of thing in court, as long as they actually _can_ prove it. (And as the entire point of court _is_ proving things, I don’t really see the problem there.)

        But, obviously, at the very very very least, the police should have to record interactions with a suspect. I was just pointing out that they oppose doing that because, apparently, juries don’t like the police’s tactics of lying when shown them, and find people not guilty.

        I’m sorry, if apparently people do not like the tactics of the police so much they find people innocent when they learn police do that, perhaps we, as society, shouldn’t be doing that. Seriously.

        This is outside any sort of appeal to ‘justice’ or honesty or anything. The government should not be doing things that people find unpalatable to convict people in a representative society.Report

  10. Avatar Mike Schilling
    Ignored
    says:

    This would never have happened in Teaxs. First, because the falsely convicted would be dead by now. Second, because no state official would have reviewed the case. And third, because of this lovely bit from E.D’s Forbes piece:

    A better approach might be to get a written agreement that all the evidence can be destroyed after the conviction and sentence. Then, there is nothing to test or retest. Harris County regularly seeks such agreements.Report

  11. Avatar superluminar
    Ignored
    says:

    Coming late to this, just wanted to say great post, and excellent comments, it’s been a bit boring online recently so I was glad to find some.decent commentry, cheers JK.Report

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