Study: U.S. Police Interrogation Methods Flawed

July 3, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Bigfoot… UFOs… False confessions…  all three concepts are far-fetched nutty theories any police officer or prosecutor will tell you doesn’t exist (normally as they roll their eyes).

This article, “Interviewing suspects: Practice, science, and future directions” published by the British Psychological Society, however, shows the topic is no laughing matter.  Not only do false confessions exist, but American law enforcement recklessly, intentionally, or obliviously utilizes pressure tactics proven to alarmingly raise the chances an innocent person questions their own innocence or attempts to extricate themselves from a psychologically terrifying situation and ultimately admits to a crime they didn’t commit.

The contributing factors according to the article include (but aren’t limited to) (1) a presumption of guilt by the interrogator; (2) focusing on traits of deceitfulness rather than traits of truthful responses; (3) unreliability of traits associated with being deceitful; (4) presenting the accused with false evidence or bluffing about unknown evidence; (5) minimizing or distorting the degree of the crime (implied leniency); (6) sleep deprivation and/or isolation; and (7) the psychological profile of the person confessing (whether factors such as susceptibility to anxiety, age, or cognitive ability play a role).

The article is obviously far more comprehensive than any editorial or summary I could write on the topic.  One of the most striking studies the paper cites is the “forbidden key” study where people are told that hitting a particular “forbidden” key on a keyboard will cause a computer to crash.  As the study goes, the computer used crashes and the person is blamed for hitting the forbidden key even though they were known not to have.  Though the tests were varied several different ways, techniques such as minimization, alleging of false evidence, or even bluffing that incriminating evidence would likely be found later all dramatically increased and in some instances doubled the false confession rate as high as 94% — the subjects internalizing and questioning their own innocence.  And as a scary afterthought — the article also discusses how judges and juries are very inadequate safeguards to bad confessions.

The article ultimately discusses the use of a British technique designed to be more open-ended and less judgmental in nature than the techniques used in the U.S.

It is a fascinating topic for anyone who wants to clinically study the psychology behind police work and behind a person confessing.

*Jeremy Rosenthal is an attorney licensed to practice in Texas.  Nothing in this article is intended to be legal advice.  Communications sent through this forum are not privileged and do not create an attorney-client relationship.  For any specific legal situation you should consult an attorney directly.


Can I Recant a Police Statement?

June 20, 2012

By Collin County Criminal Defense Attorney Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

Generally speaking a statement made to police in the course of an investigation can be considered by the police, a judge, or a jury for it’s full meaning.  Recanting the statement might call the original statement into question… then again it might not.

Who Made the Statement?

Statements of the Accused

Important in the analysis is who made the statement, what role that person plays in the proceedings, and the timing of the statement or statements.

A statement by an accused is referred to as an admission by a party opponent under Tex.R.Evid. 801(e)(2).  If the statement is relevant to a jury then it’s fully admissible.  The person or person(s) the statement was made to can testify to what was said by the accused or can have a written statement admitted.

Practically speaking, an accused and his or her lawyer would have to explain their reason for recanting such a statement although the burden of proof never shifts to the defendant under any circumstance.  Many judges and jurors would be naturally skeptical — and police tend to believe statements which fit their theory of the case.

Witness Statements

A statement by a witness or an alleged victim is a different and far more complicated matter.  The defendant in a case has the right to confront accusers in open court.  A witness who gives inconsistent statements to police — or attempts to recant a previous statement to police could be impeached or cross examined on the inconsistent statements before a judge or jury.

Suppressions of Statements

An accused’s remedy to have a prior statement nullified is usually a motion to suppress.  This would be in a situation where the original statement was taken illegally in violation of Miranda rights (or in Texas known as Tex.Code.Crim.P. Art. 38.22).  Those provisions do not apply to statements made prior to custodial interrogation (arrest).

Warnings about Inconsistent, Changed, or Recanted Statements to Law Enforcement

Depending on the situation — a person might not have a duty to cooperate with law enforcement.  An accused person, for example, always has the right to remain silent.  If you are cooperating with law enforcement, however, you have the legal duty to do so honestly.  Making inconsistent statements or admitting that previous statements were false could result in a person being prosecuted for criminal offenses of making false statements to law enforcement, obstruction of justice, or even perjury in some circumstances.

If you’re in the situation where you are considering in good faith recanting or amending a statement to law enforcement — you should have an attorney involved to counsel you.

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article is intended to be legal advice.  For legal advice about this or any circumstance you should contact an attorney directly.  Contacting the attorney through this forum does not create an attorney-client relationship nor are communications or postings in this forum privileged.


What to Do When Someone is Arrested

June 19, 2012

By Collin County Criminal Lawyer Jeremy Rosenthal

(214) 724-7065 (jail release line)

www.rosenthalwadas.com

Here are the steps to getting someone out of jail (I’m a Collin County, Texas Lawyer so these are based on Texas law):

1.  Find out where they are.  This might be much harder than it sounds if the arrestee didn’t tell you for whatever reason.  There is currently no centralized database accessible to the public to find a person in jail.  Sometimes you’d have to call every individual municipality and/or county to see if your arrestee is there.  If I ever learn of a shortcut — I’ll post it.

2.  Find out what they have been charged with.  The arrestee should have been told, but there’s often a communication gap because either your friend/ loved one didn’t understand what they were told due to the excitement of the situation or the police weren’t very clear.  Usually the police are nice enough to tell you what the charges are because they normally want their jail cleared out (running a jail is money losing proposition for the city and/or county).

In some cases, the police may drag their feet in dealing with you or not want to give you information if their investigation is ongoing and your arrestee is being interviewed.  Never interfere with a police investigation or be hostile to people working at the police station.  If you suspect your arrestee is being interviewed or an investigation is ongoing —  a lawyer should be involved immediately.  I’m not aware of any law in Texas which keeps arrest information secret or confidential.

3.  Find out the Bond Amount:  A bond is a payment kept by the County while the arrestee’s case goes to court — usually months after the arrest.  When the case is over, the bond is returned to the arrestee.  If bond has been set then getting the arrestee out of jail is as simple as finding the proper place to pay the bond (usually the County Sheriff’s office — or municipal jails if the charges are class c misdemeanors.)

4.  If No Bond is Set, Find Out When that will Happen:  Magistrate judges normally set bonds.  Every county has their own way of doing this.  Some counties, like Dallas, have 24-hour magistrates that constantly arraign defendants.  In Collin County, most cities and the county itself bring in a magistrate around 8 or 9 every morning to see all of the arrestee’s from the previous day.  State law requires misdemeanors be set within 24-hours of arrest and felonies within 48-hours.

5.  If No Bond is Set on Collin or Dallas County Misdemeanors:  Dallas and Collin Counties allow writ bonds to be filed.  If your arrestee qualifies for jail release on a writ, you can call our 24-hour jail release at (214) 724-7065 or (972) 369-0577.

6.  If the Bond is High:  You have two options to help pay a high bond.  First is that you can go to a bail bondsman who can post a surety with the county in exchange for a fee.  The bondsman should have an account with the county that allows them to do this.  You can check with the county to see if your bondsman is reputable and in good standing.  The bondsman will have a financial interest in making sure the arrestee comes to court and resolving the case — so many require checking in and being informed about the case.  A bondsman reserves the right to have you re-arrested in the event they think the arrestee won’t come to court.  Bondsman cannot refer you to lawyers nor can they file writs to have bond set.  Only lawyers can do that.

A second option if the bond is too high is having a bond reduction hearing.  This would be done through a lawyer but it would need to be done during normal court hours (which means if the arrest was after-hours or on a weekend, the arrestee is stuck waiting).  Bond is legally designed to insure the person re-appears in Court and should not be used as a tool of early punishment or oppression.  Often there are other legal and strategical considerations with bond reduction hearings.

*Jeremy Rosenthal is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice about any situation you should contact a lawyer directly.  Communications through this forum are not privileged and do not create an attorney-client relationship.


What is a Mistrial?

April 20, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

A mistrial is a declaration the judge makes to immediately halt and end a trial in progress.  Normally a mistrial is declared when a circumstance arises that taints the process beyond repair.  In certain situations, a mistrial can also result in an acquittal of a criminal defendant due to the concept of double jeopardy, but most merely result in the case being reset to a new trial status as if the mistrial had never taken place.

The circumstances which could cause a mistrial are seemingly endless.  More common reasons for mistrials are hung juries (meaning the jury couldn’t decide a case unanimously after a lengthy deliberation), or what is known as a “busted panel” which means after jury selection there were not enough qualified jurors to form a complete jury.  Other common reasons are improper arguments by a party, unexpected or improper comments from a witness, and on some occasions juror misconduct.

A judge has wide discretion to declare a mistrial if there is a “manifest necessity” to declare a mistrial.  Mistrials can be granted sua sponte (the judge declaring the mistrial without either party asking for it), or by either of the parties.

It is legally complex in situations where the Defendant requests a mistrial based on a prosecutor’s conduct during the trial as to whether double-jeopardy will bar retrial.  This is because, as a general rule, courts consider requesting a mistrial as a waiver of double-jeopardy.

The standard today for whether a mistrial requested by the defense should also cause a double-jeopardy bar is from the U.S. Supreme Court case of Oregon v. Kennedy, 456 U.S. 667 (1982) which holds that where the prosecutor baits or goads the defense into requesting a mistrial — then the defendant doesn’t waive double jeopardy by requesting a mistrial.

The easiest way to think about a mistrial triggering a double jeopardy dismissal is like an intentional foul in a basketball game.  One team has the ball and has a clear path to the basket.  In order to prevent an easy basket or layup, the other team fouls.  A prosecutor, thinking they have lost the case, makes a flagrant comment, asks an inappropriate question, or takes some other action to force defendant to request a mistrial so they can have another shot at prosecuting the defendant.  Courts in this situation can end the trial right there and bar the state from re-prosecution (essentially acquitting the accused).

*Jeremy Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article is intended to be legal advice. For legal advice about any situation, you should contact an attorney directly.  Posts made to this blog and/or communications sent through this forum are not confidential nor subject to the attorney client privilege.  Contacting the author through this forum does not create an attorney-client relationship.


Video of a Textbook Illegal Search

April 6, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Today I’m posting a video created by a guy driving home from a Star Trek convention with a buddy who was stopped by a police officer for an alleged minor traffic offense.  He and his friend spend the better part of an hour being harassed, manipulated and badgered by the officer.  It’s a textbook example of when an unsuspecting fly gets tangled in the web of a nasty spider and can’t get away.

You can watch the video here.  

As a Criminal Defense Lawyer having dealt with many bad searches, here are a few things I think are important to point out about this stop/ video.

Situations Like This Rarely Come to Light in the First Place

The reason this type of harassment of citizens never really comes to light is because these guys are completely innocent.  They’ve got no reason to ever acquire, watch, or publish this video.  In fact, most people who go through something like this either just want to forget that it ever happened or were so intimidated by the experience that they simply walk away.

Another reason why this situation is seldom exposed is because when an officer does profile correctly and find marijuana, cocaine or methamphetamine — the citizens regard all the singing, dancing, and acting he did to get into the car as “great police work.”  Obviously what is ultimately found, if anything, doesn’t suddenly validate the illegality of the search.

This is an Extreme (but not unheard of) Scenario

This situation is extreme.  It’s very common to see stops for very thin reasons, and very common to see cops play delay games like “the computer is slow today”.  Getting a k-9 to give a false hit (if that’s really what happened) would be highly uncommon, and simply making up a reason altogether for the stop (if that is what really happened) would also be well out-of-bounds.  Police often reach or stretch for reasons to detain someone, but normally it’s based on at least a smidgen of good faith.

Why this Search Was Illegal

Courts have long struggled with these types of police games.  In United States v. Shabazz, 993 F.2d 431 (5th Cir. 1993) citing United States v. Guzman, 864 F.2d 1512, (10th Cir. 1988) the Fifth Circuit stated:

“An officer conducting a routine traffic stop may request a driver’s license and vehicle registration, run a computer check, and issue a citation. When the driver has produced a valid license and proof that he is entitled to operate the car, he must be allowed to proceed on his way, without being subject to further delay by police for additional questioning. In order to justify a temporary detention for questioning, the officer must also have reasonable suspicion of illegal transactions in drugs or of any other serious crime.”

Also, it’s a well known game to wait for the arrival of a K-9 unit in the event the detaining officer suspects drugs.  

*Jeremy Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article is intended to be legal advice.  For legal advice about any situation you should contact an attorney directly.  Communications sent through this blog are not confidential, privileged, nor do they create an attorney-client relationship.


How Double Jeopardy Works

March 4, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

Double jeopardy comes from the 5th Amendment to the U.S. Constitution which holds in part, “…nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb…”

Double jeopardy can be an extremely complex topic.  The easiest way to think about it is once you are acquitted of a charge, you can’t be prosecuted for the same charge again. The prosecutors who represent the government are like anyone else before the Judge.  They get their day in court — but they don’t get it again and again and again until they win.

What makes the issue so confusing at times are the different concepts behind what constitutes an acquittal for example.  The prosecution may dismiss a case but if they do so before jeopardy is said to “attach” in a particular case (typically when a jury is sworn — or in a trial before a judge — when the trial begins), the prosecution can simply refile the case if they are within their limitations period.

Also many factual circumstances could lend themselves to prosecutions of different offenses.  Crimes have statutory elements which must be proven by the prosecution.  The elements for one crime might be completely different from another crime which arose from the same situation.  Merely because someone was prosecuted and acquitted of one charge doesn’t mean the other charge can’t then be pursued by the state.  Whether subsequent prosecution is precluded by double jeopardy might depend on the over-lapping nature of the elements of given charges.

The vast majority of times double jeopardy issues are simple.  If someone is found not guilty for driving while intoxicated, marijuana possession or assault then virtually always the case is closed.  On occasion double jeopardy issues can arise, though.  When they do it’s best to speak with a lawyer about what the State may or may no do to pursue a particular case.

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas and is Board Certified in Criminal Law.  Nothing in this article is intended to be legal advice.  For legal advice on any issue you should contact an attorney directly.  Contacting the attorney through this blog does not create an attorney-client relationship.  Communications sent through this blog are not considered privileged or confidential.


Tarrant County’s Disappointing Decision to Publish DWI Arrestees Names

January 1, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

Tarrant County decided to publish the list of DWI arrestees over New Year’s weekend.  You can read about their decision here.

According to Richard Alpert, Tarrant County prosecutorial guru for intoxication offenses, the measure is a creative way to make the streets safer.  Alpert reasons, “If the financial cost of being charged with a DWI-related crime and the risk of injury or death is not enough, perhaps the effect of having it known by friends and neighbors will be.”

Mr. Alpert further said he’s motivated to create new efforts to reduce drunk driving because of cases he’s worked on where people have been killed: “The worst photographs that I’ve ever had to look at as a prosecutor are vehicular crashes.”

Point well taken.  Mr. Alpert is highly regarded around the State and he is nothing if not sincere about his beliefs.

Here’s why Mr. Alpert’s decision is disappointing and reveals a common thinking error amongst law enforcement and prosecutorial agencies.  Not everyone is guilty.  In fact, based on past statistics it is inconceivable that all of the arrested people this weekend will be convicted.

Tarrant County’s actions of publishing the names probably means an acquitted person’s name will be on the internet FOREVER as a drunk driver regardless of what a jury says — and even regardless of if and when a District Judge Orders the Tarrant County District Attorney’s Office to take certain names off the list.  Putting something on the internet is writing it in permanent ink.

I wouldn’t expect the public to be too lose sleep over a few unlucky schmos who get tossed on this list because they ran into an angry cop having a bad night… or for some poor mope with a lisp that couldn’t talk an officer out of arresting him for having slurred speech… and I can’t imagine the masterminds of the list would be too bothered either.  After all… even if they beat the rap, they were probably guilty of SOMEthing, right?

Prosecutors have a duty to seek justice.  That duty is worthless where prosecutors assume everyone is guilty… and how do we know they’re making this assumption?  They are intentionally convicting them in the public and they’re not even bothering to read the police reports first.

Scary.

*Jeremy Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article is intended to be legal advice.  For legal advice about any situation, you should contact an attorney directly.  Contacting the attorney through this blog does not create an attorney-client relationship.  Communications through this blog are not confidential.