Saturday, July 26, 2014

Would You Confess to a Crime You Did Not Commit?

The purpose of the legal system is to find out the truth. In the American system of justice, the search for truth is entrusted to competing advocates who argue the opposite side of a question. The assumption is that these dueling advocates are more or less equal in skill, abilities, and resources, so the outcome of their confrontation will be dictated by who has the better case — in other words, the better claim to the truth. Sometimes, however, the scales of justice are not so evenly balanced.

In a justice system that relies so heavily on the skills and abilities of lawyers to argue for their clients and persuade skeptical third-parties of the truth, the story of Michael Philips shouldn’t come as too much of a surprise. The Washington Post reports:
In 1990, Michael Phillips was convicted of raping a 16-year-old girl at a motel in Dallas, Tex., where they both lived. Phillips pleaded guilty because, he said later, his attorney told him that as a black man who had been accused of raping a white teenager, he should try to avoid a jury trial. He went to prison for a dozen years and, after his release, spent another six months in jail after failing to register as a sex offender.
According to the Post’s report, a quarter century after the attack, DNA evidence conclusively has demonstrated that Phillips was not the rapist, too late to save Phillips from serving time for a crime he did not commit, but another sobering reminder that the legal system is not free from mistakes.

What evidence did Philips face that convinced him it was better to confess to a crime he did not commit than to try to prove his innocence in court? The eyewitness identification of the victim. According to the Post:
The woman who was raped partially pulled up the ski mask on her attacker, and she said she recognized Phillips. She also picked a photo of him out of a lineup.
Eyewitness identifications are notoriously unreliable. They are also devastatingly persuasive. Combine that with the charged background of race relations and extremely long sentences for people accused of crimes who exercise their right to test prosecutor’s cases in court, and Michael Phillips’ decision to accept a dozen years in prison over much harsher alternatives if the dice did not fall his way makes chilling sense.

From the safety and security of our homes, it is easy to say that we would never confess to a crime we did not commit, but Michael Phillips’ story should give us pause. It is nice to think that truth prevails, but that is not always how things turn out, and sometimes an innocent man serves someone else’s time while the true perpetrator goes free.

Tuesday, February 11, 2014

Exonerations in 2013

According the University of Michigan’s National Registry of Exonerations (website), “2013 was a record-breaking year for exonerations,” with 87 people found to be innocent of the crimes for which they were sent to prison.

According to the report, on average, these innocent people spent more than 12 years in prison before they were exonerated.

The most astonishing number is that 15 of the 87 exonerations recorded in the registry last year were in cases where the accused had pleaded guilty. This is worth thinking about. Fifteen people confessed to crimes that they did not commit. They went to prison, served time, and were only released many years later when their own confessions were proven to be false.

In the opinion of the authors of the report, the greater number of exonerations demonstrates that the criminal justice system is becoming increasingly willing to consider the possibility that the system sometimes makes mistakes:
The pattern of exonerations in 2013 suggests that we are increasingly willing to consider and act on the types of innocence claims that are often ignored: those without biological evidence or with no actual perpetrator; cases with comparatively light sentences; judgments based on guilty pleas by defendants who accepted plea bargains to avoid the risk of extreme punishment after trial.
The report is interesting throughout, and you can read the whole thing here.

Thursday, January 23, 2014

Peremptory Challenges

Picking a jury is an important moment in a lawsuit. The jurors will decide the outcome of the case, but jurors are not legal professionals, and they come to court with the full array of biases and prejudices that exist in the world.

In most cases, the lawyers for the parties to the lawsuit will be able to ask prospective jurors some brief questions in a process called voir dire. The judge will remove anyone who says that they are biased, but with their fates in the hands of inexperienced strangers, litigants often worry that one or more potential jurors might harbor a bias that is not expressed.

For this, the law allows each side in a lawsuit a fixed number of peremptory challenges. A peremptory challenge is the right of a party to a lawsuit to remove a potential juror without giving a specific reason.

For the parties, peremptory challenges can help them feel more confident that their case will be decided based on the evidence and not bias or prejudice.

But peremptory challenges come with a cost. First, it is not clear that parties can reliably predict who is biased and who is not, and therefore, it may be the litigants who are relying on their own biases and prejudices to exclude fair-minded people from jury service .

Second, to accommodate peremptory challenges, courts must call more potential jurors to make sure that after each side exhausts its challenges, enough people remain to fill out the jury. This wastes the time of people who wouldn’t have to be called to jury service if the courts didn’t need the extra bodies to use up the parties’ the peremptory challenges.

California is now considering reducing the number of peremptory challenges in some criminal cases. Currently, for felony cases, the prosecution and the defense each get 10 peremptory challenges, and for cases involving punishment by death or life in prison, each side gets 20.

For misdemeanors in California (cases where the potential punishment is one year in jail or less), under current law the prosecution and the defense each get 10 peremptory challenges, the same number as for felony cases. The San Francisco Chronicle reports that California is considering reducing the number of challenges for misdemeanor cases from 10 to five.

Potentially, this small change could save a lot of money. According to the San Francisco Chronicle:

The California Judges Association, SB794’s sponsor, says it would save at least $1.2 million a year for the courts and $30 million or more for prospective jurors, their employers and their communities by reducing the number of jurors called for service and the time they spend in court. About 1.5 million Californians report for jury duty each year.

Prosecutors and defense attorneys, however, are united in their opposition to the move. They believe that fewer peremptory challenges would mean more biased juries.

Peremptory challenges are controversial because it is not clear whether they really reduce bias or rather simply waste money and people’s time. If California goes through with the reduction in peremptory challenges, it will be very interesting to see what effect, if any, it has on misdemeanor trial results.

Friday, January 10, 2014

Reasonable Suspicion

Liam Dillon at Voice of San Diego has an illuminating article on when the police can and can’t pull you over when you’re driving:

The cops can pull you over when they believe you’ve done something wrong….

The technical term for this is that police have to have “reasonable suspicion” you’re violating the law. Reasonable suspicion has no precise definition, but it has to be something supported by a collection of facts and not just an officer’s hunch. An officer witnessing you swerving could be reason enough to pull you over for a minor vehicle code violation – or to check if you’re drunk. An officer not liking the color of your car would not count.

The legal system is riddled with questions like what constitutes “reasonable suspicion.” The legal test is framed in abstract terms but must be applied to specific facts and circumstances. In many cases, this leaves drivers and police officers guessing as to when reasonable suspicion exists and when it doesn’t—at least until a court rules on the situation and gives definitive guidance.

Thursday, January 9, 2014

Same Word, Different Meanings

One of the fundamental challenges people face in understanding and applying the law is that the same word can mean different things to different people. Eugene Volokh has an excellent post today about how Abraham Lincoln in the midst of the Civil War made this very same point.

Everyone is for liberty, but not everyone agrees what liberty is. In Lincoln's day, some people thought liberty meant freedom of slaves from bondage, but others argued that liberty meant the freedom to hold slaves if they wanted.

Here is what Lincoln said:

The world has never had a good definition of liberty, and the American people, just now, are much in need of one. We all declare for liberty; but in using the same word we do not all mean the same thing. With some the word liberty may mean for each man to do as he pleases with himself, and the product of his labor; while with others the same word may mean for some men to do as they please with other men, and the product of other men’s labor. Here are two, not only different, but incompatible things, called by the same name — liberty. And it follows that each of the things is, by the respective parties, called by two different and incompatible names — liberty and tyranny.
The shepherd drives the wolf from the sheep’s throat, for which the sheep thanks the shepherd as a liberator, while the wolf denounces him for the same act as the destroyer of liberty, especially as the sheep was a black one. Plainly the sheep and the wolf are not agreed upon a definition of the word liberty; and precisely the same difference prevails today among us human creatures, even in the North, and all professing to love liberty. Hence we behold the processes by which thousands are daily passing from under the yoke of bondage, hailed by some as the advance of liberty, and bewailed by others as the destruction of all liberty.
Words are often more ambiguous than most of us realize. Debates and disagreements over the meaning of words can lead to conflict, sometimes violent conflict, and sometimes, as in Lincoln's day, a long and bloody civil war.

Wednesday, January 8, 2014

Take Constitutional Law from Yale Law Professor Akhil Amar

Yale Law School Professor Akhil Amar is one of the country's leading scholars on constitutional law, and he will be teaching a *free* course on Constitutional Law later this month. This is a great opportunity to learn from a leading legal mind. The course starts on January 24, 2014 and is distributed through Coursera. If you have time, you should consider checking it out.