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 Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of 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.


Collin County Pre-Trial Diversion Update (June, 2012)

June 22, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.thecollincountylawyer.com

It’s been a while since I’ve written about the Collin County Pre-Trial Diversion program.

As a refresher, the pre-trial diversion program is a less formal probation offered under Tex.Code.Crim.P. 42.12.  In Collin County, a first-time offender may be offered the opportunity to enter the pre-trial diversion program which would result in the underlying charges to be dismissed and eventually expunged.

The Collin County District Attorney’s Office has made this alternative more available in the past few years for certain categories of cases.  Most qualifying cases tend to be misdemeanor theft and drug cases though those charges are not exclusively considered.  While the diversion program is available for felonies, selection of felony cases for diversion has been extremely selective. Diversion is not offered for DWI or DUI charges.

The program has endured some growing pains but remains an excellent avenue towards clearing one’s record.  The current process is that a defendant’s attorney must first apply and be approved by the District Attorney’s Office.  After receiving approval from the DA’s office, a candidate is sent paper-work to be reviewed with their attorney.  The candidate is then required to personally make an appointment with the probation officer who conducts a final interview and decides if the candidate is admitted into the pre-trial diversion program.

Generally speaking a candidate is usually accepted into the program at the interview — but not always (a point they make repeatedly).  The interviewer, however, can reject the application.  The criterion for such rejection can be rather vague but probably hinges on the needs of the person entering the program in relation to the current load of the program.

The program isn’t perfect, but from a practitioner’s standpoint seems to have a high success rate for those who are accepted and remains a useful option.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any situation you should contact 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 Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court 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.


America’s Imprisonment Crisis

April 22, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Today I’m going to share a great piece I saw this morning on CBS Sunday Morning called “Incarceration Nation“.  The stats are stunning.  America jails a higher percentage of it’s population than any other country on the planet.  We account for 5% of the worlds population but 25% of the worlds inmates.  It’s even more puzzling when our national crime rate has dropped by more than 40% over the last 20 years.

The story will make you think twice the next time you hear a politician trying to score cheap points by being “tough on crime.”  The Texas legislature has made a push in recent years to alleviate the burden drug cases cause the system, yet the legislature continues to toughen it’s vice grip on other crimes with harsh mandatory minimum sentences and eliminating parole opportunities.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court 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 nor privileged.


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 Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court 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.