Posts Tagged ‘identification’

Extending the Right to Counsel?

Thursday, March 3rd, 2016

In the “class participation” section of my comic, commenter G. T. Bogosian this morning asked:

Why does the supreme court keep guaranteeing that we have a right to counsel, but only in situations that almost never come up in real life? Is there some guiding constitutional interpretive philosophy that explains all or most of this? Or does the supreme court just really want to sound like they are pro-defendants’ rights without actually jeopardizing law-enforcement?

To which I hastily replied over my morning coffee:

They just haven’t extended the rule far enough yet.

Originally, the right-to-counsel clause of the Sixth Amendment was intended to allow you have a defense attorney. It was a reaction to the English rule prohibiting defense counsel.

The English prohibition started out as a well-intentioned policy. Originally, criminal trials didn’t involve lawyers on either side. The victim or his family presented their case, and the defendant defended himself. A criminal trial was a “battle of amateurs,” and so judges would strictly enforce the prohibition on defense counsel to be fair. Lawyers were also seen as an impediment, preventing the court from getting all the evidence it could have heard.

But by the time of the American Revolution, the rule had become unfair. Defendants had to deal with the intricacies of procedure, complexities of law, and now the government was using lawyers to prosecute cases. The Sixth Amendment was meant to fix that unfairness.

But the focus then was only on the trial itself. The framers of the Bill of Rights were really only thinking about trial. The Amendment’s rights apply “in all criminal prosecutions,” and at the time, that meant “at trial.”

Over time, however, prosecutions got longer, and more procedures came to be seen as being part of the case. Defendants had to face professional lawyer adversaries earlier and earlier, and confront witnesses at pretrial and preliminary hearings. The Supreme Court responded by extending the right to counsel, letting it take effect sooner.

The rule became that the right to counsel “attaches” at all “critical stages” of a prosecution before trial.

And that’s what the Court was thinking when it talked about interrogations and lineups. The Court was trying to be expansive, to say these investigative procedures were in fact “critical stages” of a prosecution, requiring the assistance of counsel.

But the right is still only about “criminal prosecutions.” And there is no prosecution until the defendant has been formally charged. A prosecution does not begin with a police investigation. A prosecution does not begin with an arrest. It begins with arraignment in court on a complaint, an indictment by a grand jury, and similar court procedures formally accusing the defendant of a crime.

It would be a leap of language — but not of logic — to extend the rule of the Sixth Amendment sooner, to extend it to police investigations. Remember, police weren’t a thing when the Sixth Amendment was written. They have since become an important part of the government’s prosecution of a case. The Court already recognizes that the investigative stage is a critical stage of the prosecution; it just hasn’t recognized that the investigative stage precedes the filing of an accusatory instrument.

Right now, however, that is where they’ve drawn the line. They’ve adhered to the words of the Amendment rather than the principle they’ve recognized. And this rule has become “well-settled” by the passage of time.

So the short answer to your question is they’re trying to protect defendants, but haven’t yet seen that to do that they need to extend the meaning of “criminal prosecution” to include police investigations.

It’s not impossible. They did that with self-incrimination, as we saw in the previous chapter, extending the right to pre-prosecution interrogations. Nevertheless, challenge to get the Court to extend the right to counsel meaningfully would have to overcome the inertia of stare decisis, would have to present a powerfully principled argument, and would have to rigorously unknot the Court’s perpetual confusion over what to do about police given (also covered in the previous chapter) that the law never contemplated the roles that police have taken on.

But now it’s later in the morning, I’m at work, having a coffee break, and I’m pondering a couple of things. My thoughts are disjointed, and perhaps writing them down will bring clarity.

We’ve already extended the right to counsel beyond the charging instrument to the police investigation, in the self-incrimination context. Is there really much of an obstacle to applying the same reasoning to other contexts where the Court recognizes the need for counsel’s protection? Would a rule like Miranda work in something like eyewitness identifications?

I don’t think it’s that much of a stretch. Yes, there are very different policies in play, but as a practical matter the rule would seem to work.

 

With self-incrimination, the policy is to prevent the government from forcing you to give evidence against yourself. There’s a waiveable right to counsel at a custodial interrogation in the hopes of ensuring that self-incrimination is voluntary. (That’s not how it works, but that’s not the point.)

With identifications, however, the policy is to prevent the government from interfering with a witness’s memory. Not overcoming your free will, but tampering with the evidence. Would a waiveable right to counsel insure against such tampering?

The Court has already recognized the need for counsel at post-indictment lineups and showups, to ensure minimal messing with minds. So it seems easy to extend that protection pre-indictment. (It hasn’t been extended to photo arrays, though, which can be just as dangerous and are much more common. But let’s just pretend those are included, for the sake of argument, and because I can dream, can’t I?)

But when would it attach? At first glance, the “custody” requirement of Miranda doesn’t make sense here. Custody is important to Miranda because it implies compulsion. But compulsion isn’t an issue in IDs.

Still, it couldn’t attach at the outset of a police investigation. Even though that’s arguably when the police can do the most damage to witness memory, by careless questioning and suggestion. Because there’s no suspect yet. Who’s the defense lawyer defending? Plus requiring a lawyer to be looking over the cop’s shoulder during the preliminary stages would be time-consuming, wasteful, and a serious impediment to collecting evidence.

Arrest, on the other hand, is too late. Often, the arrest isn’t made until after the ID procedure we’re trying to protect.

So on second thought, custody seems to be a meaningful bright line to draw. It’s already understood by police and counsel, for one thing. But it’s a workable line between when a lawyer is useful or not. Once the suspect is in custody, there’s someone whose rights can be defended. The preliminary stages of the investigation are over, so a lawyer is less of an impediment.

As showups usually require custody, they would have to wait until counsel could be obtained, unless counsel was waived. That could be a problem. Most showups are quick-and-dirty “did we get the right guy” scenarios shortly after the crime. Requiring counsel would require a lot of delay. In a drive-by ID, I reckon counsel would have to be in the car with the witness and the detective, to make sure nothing too suggestive was said, and that could be physically difficult to arrange. The logistics aren’t insurmountable, but they’re awkward.

But lineups and photo arrays are easy. While the detectives are setting everything up, they bring in the lawyer as well. Logistically not a problem. And even in showups, the lawyer isn’t an impediment. Police actually do want to do these things right, and a lawyer’s role would be to ensure that they do.

If the right’s waiveable, what would the warnings look like? “An eyewitness is going to look at you, to tell us if they recognize you as the person who committed a crime. You have the right to have an attorney present during this procedure. If you cannot afford to hire an attorney, one will be appointed to represent you. Do you wish to have an attorney present at this time?” Again, awkward. But not terribly so.

Would it even be waived? This isn’t like confessions, where suspects often want to tell their story, and will gladly waive their rights in order to do so. A suspect has nothing to gain from waiving here, so I imagine few rational suspects would say “nah, go ahead, I don’t need a lawyer for this.”

As a practical matter, I don’t see it being waived all that often. So a defense lawyer would be required at most ID procedures. In interrogations, invoking the right to counsel simply means “no interrogation.” They don’t go round up a lawyer. Would a right to counsel in identifications essentially mean “no identifications?” I don’t see any court agreeing to that, if that’s the case.

And yet, with both interrogations and identifications, the courts have recognized the great potential for injustice, and have stated that a lawyer’s protection is the remedy. And perhaps the risk of losing identifications isn’t that high. It’s not as if the police would decline to conduct ID procedures just because a lawyer would be watching. It’s not the same as interrogations, where any lawyer would simply advise her client not to answer any questions. Here, a lawyer would only be watching to make sure the police did their job right. It’s a very different dynamic. I imagine that it wouldn’t reduce the number of ID procedures meaningfully.

So to answer my own questions, I’m starting to convince myself that a rule analogous to Miranda might actually work in the ID world. Once a suspect is in custody, he has a waiveable right to an attorney at any ID procedure. It seems doable, and consistent with the way our law’s been trending over the past 75 years or so.

Welp, coffee break’s over. I’m done rambling. It’s been fun, but back to work.

Correct, but Wrong: SCOTUS on Unreliable Eyewitness Identification

Thursday, January 12th, 2012

In this Information Age, it is hard to grasp sometimes that everybody does not know everything. And yet it is so. It is common knowledge, for example, that dinosaur fossils are the bones of creatures that lived scores of millions of years ago, that terrorist hijackers flew planes into the World Trade Center and the Pentagon, and that eyewitness identification testimony is statistically as reliable as a ’78 Chevy. And yet there are tons of people who sincerely believe that fossils are just a few thousand years old, that the U.S. government conducted 9-11, and that an eyewitness I.D. is the be-all-and-end-all of Truth.

Actually, it’s not fair to lump the I.D. believers in with 9-11 conspiracy theorists, Genesis literalists, truthers and the like. The others are sort of fringe-y. But if you put 12 ordinary citizens in a jury box, of good intelligence and sound common sense, and the victim points dead at the defendant and says “there is no doubt in my mind, THAT is the man who raped me…” you can almost hear all twelve minds slamming shut. They’ve heard all they need to hear. So far as they’re concerned, this case is over.

This despite the fact that study after study after study reinforces the fact that eyewitness testimony sucks.

And innocent people go to jail — or worse — because of it.

So you can imagine how keen the legal world was to get the Supreme Court’s decision in Perry v. New Hampshire, which came down yesterday. Perry, identified by an eyewitness as someone she’d seen breaking into cars, argued that Due Process required a judicial hearing on the reliability of that testimony before it could be admitted at trial.

Which was the exact wrong thing to argue.

Due Process requires that the government makes sure that it does not do things that make its identification procedures unreliable. It does not require that a judge do the jury’s job. Particularly when that job — weighing the reliability of a given bit of testimony — is incredibly fact-specific.

And especially given all the evidence of all the various factors that go into making eyewitness testimony unreliable — racial differences, time lapse, focus of attention, lighting, familiarity, stress, presence of a weapon, etc. — what judge in his right mind is going to want to be the one deciding whether this particular eyewitness’s memory is good enough?

So it’s hardly any surprise that the Supreme Court balked at Perry’s Due Process argument. By a vote of 8-1 (former prosecutor Sotomayor as the lone dissenter, none better to know the power of the EW ID) the Supremes held that, unless law enforcement is alleged to have gotten the I.D. under unnecessarily suggestive circumstances, there’s no Due Process issue and certainly no reason for a pre-trial hearing on reliability.

-=-=-=-=-

No, what Perry could have argued for is either (more…)

Even Worse than Eyewitness IDs: The Police Sketch

Wednesday, June 29th, 2011

Everyone knows that eyewitness identifications are completely reliable — that is, you can count on them to be wrong.  (Everyone does know this, right?)  If the person being identified is a stranger, the chances of a correct I.D. are slim to none.  There are lots of reasons for this.  Eyewitnesses rarely have or take the time to study and memorize a person’s features.  People of one race are awful at identifying people of another race, largely because the parts of the face which differ from person to person are different from race to race — which is why people of another race often “all look alike,” because you’re looking for cues in parts of the face that don’t vary much in that other race.  And people just generally suck at remembering details consistently and accurately.

Still, sometimes an eyewitness description is all you’ve got.  And so what if the eyewitness didn’t see every detail of the face — at least they can describe the parts they did see.  Trained sketch artists take the partial descriptions provided by eyewitnesses, and using sophisticated software they can put together composite sketches that show what the bad guy probably looks like.

We’ve all seen them on the TV news, and various crime dramas would lead one to believe that they’re pretty useful.  And now with IdentiKit software, the details can be adjusted here and there until the witness goes “that’s him!”

But we never hear, after the fact, whether the drawing wound up being all that accurate.  There’s a good reason for this.  The odds of the drawing being accurate are so low, they are below statistical significance.  You’ve probably noticed this yourself, on the rare occasion when a police sketch has later been released with a photo of the culprit — the resemblance even then is usually pretty slim.

A thorough study of composite sketches by Charlie Frowd, of the University of Stirling in Scotland, had participants study a photograph of an individual for a full minute, then describe the face for a trained police sketch artist.  How well could people then recognize the faces in these sketches?  The recognition rate was as low as 3%.

Three percent.

MIT scientists Pawan Sinha, Benjamin Balas, Yuri Ortrovsky and Richard Russell have a great article here that describes problems with composite sketches and ways to make the software better.

The image above was taken from that article.  A trained and experienced IdentiKit officer was given actual photographs of celebrities with distinctly recognizable faces.  He was given all the time in the world — no pressures — and worked directly from the photos themselves instead of having to rely on another person’s descriptions.  And those sketches you see up there are the best the software could do.

Well, maybe the problem is with what the IdentiKit tries to do.  After all, it just works on individual features one at a time.  The eyes, nose, mouth, etc. are worked on in isolation.  Humans don’t look at features in isolation, though.  So there’s another kit out there called EvoFit, that’s more like a photo array that gets to evolve.  The witness is shown 72 random faces.  She picks out the six that most resemble the culprit.  The facial features of those six are then scrambled and recombined to make 72 new pictures.  The witness then picks out, again, the six who most resemble the culprit.  The process is repeated once more to get an image that pretty much matches what the witness saw in her mind.

Now, there are tons of problems with this method.  The suggestivity of showing pictures is pronounced — when witnesses choose photos from an array, they often choose not the one that closest resembles the culprit, but instead pick the one that looks different from the rest — and when a picture has been chosen, that image often replaces the image in the witness’ memory.  She now remembers that face as being the face of her attacker, even though it wasn’t.  This method of scrambling digital faces poses the same problems.

Still, it is more reliable than the IdentiKit.  Instead of a 3% recognition rate, the EvoKit attains a whopping 25% recognition rate.

One in four.

-=-=-=-=-

People suck at identifying strangers.  Period.  And yet in-court eyewitness identifications are the nuclear bombs of trial.  The victim points at the defendant and says he’s the one what done it, and you can see the jurors’ minds turning off.  So far as they’re concerned, this trial’s over.  The defense lawyer’s got a lot of work to do, now, to overcome that.

What would be just and fair, of course, would be to allow some evidence of the unreliability of eyewitness identifications in general, and the reasons why IDs can be wrong, so that the defense can tie them to specific testimony by the eyewitness to show that she made the same mistakes.  Not asking the jury to make a logical fallacy that, because it happens a lot in general, it must have happened here as well.  But actually drawing the jury’s attention to specific reasons why this particular testimony is not trustworthy, supported by expert testimony on the unreliability of IDs.

Don’t hold your breath waiting for that to happen, though.

Mandatory DNA Sampling Constitutional. Expect Ruling to be Upheld.

Friday, May 29th, 2009

dna.png

In a decision sure to be fought before the 9th Circuit, a federal judge in the Eastern District of California yesterday upheld mandatory DNA collection from people merely arrested for federal felonies, regardless of the nature of the crime charged.

Obviously, this raises eyebrows in certain circles. Taking DNA from people who haven’t even been convicted yet? Taking DNA from people who aren’t suspected of committing crimes where DNA would even be relevant? Doesn’t this violate basic principles of our jurisprudence?

Well… and this is a defense attorney talking here… no.

The case is U.S. v. Pool, decided by Judge Gregory G. Hollows. The defendant was charged with possession of child porn, and was released on bond. One of the conditions of release was that he provide a DNA sample.

This requirement was mandatory under two federal laws: the Bail Reform Act, 18 U.S.C. § 3142(b) and (c)(1)(A), which mandates it for pre-trial release; and the DNA Fingerprinting Act of 2005, 42 U.S.C. § 14135a, which mandates it for everyone arrested on a federal felony charge.

DNA is usually collected by dabbing a cotton swab in the person’s mouth or something similar. Rarely, it is collected by a blood test. The DNA is to be used solely by law enforcement for identification purposes.

Pool argued that this warrantless DNA sampling violates the Fourth Amendment. It’s a search, there’s no warrant, and there’s no special need for the testing for nonviolent arrestees.

Judge Hollows rejected that argument, stating that every Circuit to consider the issue has held there to be no Fourth Amendment violation here, and that the criterion is not “special need” but rather the “totality of the circumstances.” The reasonableness “is determined by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy, and on the other, the degree to which it is needed for the promotion of legitimate governmental interests.”

Pool argued that pre-conviction sampling is improper, based on the Supreme Court cases Ferguson v. City of Charleston, 532 U.S. 67 (2001)(unconstitutional search for law enforcement to use hospital’s diagnostic test of pregnant patient to obtain evidence of drug use), and City of Indianapolis v. Edmond, 531 U.S. 32 (2000)(vehicle checkpoint unconstitutional when primary purpose was to detect evidence of drug trafficking). Those cases relied on the “special need” analysis he suggested.

Judge Hollows rejected that as well, as those searches involved police fishing for evidence, before anyone was formally charged with a crime. The statutes at issue here subject people to DNA testing after a finding of probable cause by a judge or grand jury. After someone’s been indicted, courts can impose all kinds of restrictions on liberty. The situation is much more like that of people who have been convicted, than of people who have not yet been charged with anything, and so the “totality of the circumstances” test is more appropriate.

For more than 45 years, it’s been well-settled that someone who’s been arrested has a diminished expectation of privacy in his own identity. He can be compelled to give fingerprints, have his mug shot taken, and give ID information. DNA is no different than fingerprints — a unique identifier that helps law enforcement find the right suspect, and eliminate the wrong suspect. In fact, DNA is more precise than photos or fingerprints, so the government interest in obtaining it is even stronger.

Meanwhile, the invasiveness is minimal. Even blood tests are considered “commonplace, safe, and do not constitute an unduly extensive imposition on an individual’s privacy and bodily integrity.” Oral swabs are considered no more physically invasive than taking fingerprints.

The judge also rejected arguments that DNA evidence, once taken, might possibly be stolen and put to an impermissible use. That risk applies to everything, and there are criminal penalties to deter it. Just because someone might break the law doesn’t mean the setup is improper.

Judge Hollows pointed out that all the same concerns being raised about DNA were raised in the early part of the 20th Century with respect to fingerprints. And since at least 1932 it’s been understood that the public interest far outweighs the minimal burden to the individual being fingerprinted. The same reasons that justify post-arrest fingerprinting without a warrant justify post-arrest DNA sampling without a warrant.

Pool also argued that this violates Fifth Amendment procedural due process, because it’s mandatory, and thus precludes an opportunity to be heard. But that only applies if the defendant’s privacy rights outweigh the government interest, and it’s the other way around here. Pool argued that there is a risk of erroneous deprivation of his privacy interest, for arrestees who are not ultimately convicted. But the system is set up to expunge DNA records if the person is exonerated or the charges are dismissed. So the risks are minimal, and the government interests are compelling, and that means there is no procedural due process problem.

Pool also argued that this violates the Eighth Amendment protection against excessive bail. Bail conditions have to be proportionate to the perceived government need requiring the condition. But the Supreme Court case that set this rule, U.S. v. Salerno, 481 U.S. 739 (1987), specifically rejected any idea that this “categorically prohibits the government from pursuing other admittedly compelling interests through regulation of pretrial release.” This being nothing more than a booking procedure, and not comparable to conditions of release that actually have to do with the concerns arising from letting someone out on bail, there’s no reason to consider it excessive.

Pool also argued that the statutes violate the Separation of Powers, as Congress has intruded on judicial decision-making in the setting of bail conditions. But here, Congress didn’t direct any judicial findings. It merely directs what the judge needs to do after a certain finding has been made. That’s what Congress is supposed to do. There’s no problem there.

Poole finally argued that this is an unconstitutional extension of power, because the Commerce Clause doesn’t authorize DNA sampling. But the Commerce Clause lets the government make conduct a federal crime. The resulting government powers, such as incarceration and terms of release, have nothing to do with it, and don’t need to be independently authorized under the Commerce Clause.

* * * * *

What to make of this?

Pool’s arguments stem from a presumption that a person out on bail is more like a pre-arrest suspect. Judge Hollows’ decision stems from the opposite conclusion, that a person out on bail is more like a person on post-conviction supervised release. Any arguments before the 9th Circuit will have to focus on which it is, and we are inclined to believe that the Circuit will side with Judge Hollows here.

Central to the distinction is the fact that there has already been a judicial determination here, separating the defendant from the class of unarrested individuals. Either a judge or a jury has found that it is more likely than not that a federal felony was committed, and that this person did it. Once that has happened, a person’s rights are substantially changed. Society has an interest in ensuring that they come back to court to be judged. Society has an interest in ensuring that they don’t cause more harm in the meantime. These interests outweigh a defendant’s interests in liberty and property, to varying degree depending on the individual. That’s why we have bail and bail conditions.

What is odd, however, is that Congress made DNA sampling a mandatory bail condition, when it has nothing to do with pre-trial release.

Judge Hollows correctly points out that, conceptually, DNA sampling is no more invasive than fingerprinting, and is used for the same purposes. It’s a booking procedure, not a release consideration. Congress could just as easily have made DNA sampling a mandatory part of post-arrest processing, along with the mug shot and fingerprints. It would have been just as constitutionally sound.

By calling it something that it’s not, Congress subjected DNA sampling to this exact challenge.

Now, the ACLU differs with us, and calls the ruling “an incredible threat to civil liberties.”

“We think this ruling is incorrect,” ACLU attorney Michael Risher told reporters. “It ignores the presumption of innocence and it does not pay enough attention to the protections of the Fourth Amendment.” He also opined that police now have an incentive to make pretext arrests, just to get people’s DNA to help them solve crimes. How this changes things from the already-existing incentive to make pretext arrests to get fingerprints is unclear to this defense attorney. And anyway, police don’t need to arrest someone to get DNA or fingerprints — they can be collected by pretext in any number of ways, without a warrant, and often are.

With respect to the Fourth Amendment, what is clear here is that this is not a search for evidence. The crime has already been charged. It’s very clearly an administrative tool for establishing the identity of the defendant. Evidentiary consequences are merely hypothetical, if the person should somehow commit a violent crime in the future and leave behind DNA that gets compared to the database. That’s no different from mug shots, and unlike mug shots (where the chances of a false positive are unreasonably and embarrassingly high, given their variety and the innate unreliability of eyewitness recognition) DNA has an insignificant risk of identifying the wrong person. Mug shots aren’t a Fourth Amendment issue, neither are fingerprints, and neither is DNA, really.

* * * * *

One issue, however, is when the DNA is being taken for the purpose of gathering evidence, in the investigation of a crime.

That’s not the case here, and it’s sort of off point, but should a warrant even be involved then?

Well, isn’t it a Fifth Amendment violation then? You’re making someone incriminate himself against his will, right?

Wrong. Self-incrimination doesn’t enter into it, because what’s important there, the underlying policy of the right, is that we don’t want the government overriding people’s free will, and making them convict themselves out of their own mouths. We don’t want another Star Chamber. We don’t want the government using its overwhelming power to extort unwilling confessions, whether by thumbscrews, lead pipes, or simple custodial interrogation.

But taking blood samples has been held not to involve the right against compelled self-incrimination. Nobody’s being forced to say “I did it.” All they are being forced to do is provide physical evidence. There is no free will involved in the creation of that physical evidence — it exists whether the person wants to hand it over or not — but there is free will involved in the creation of confessions and incriminating statements.

But that brings us back to the Fourth Amendment. If someone is being compelled to give a swab or blood sample, then the government is seizing pre-existing evidence just as if they were seizing drugs from someone’s home. So shouldn’t a warrant be required after all?

Yes it should. But that’s only when the evidence is being sought as evidence. Constitutional rights really do depend on what’s going on. An administrative requirement is not the same thing as a criminal investigation. A DNA sample for administrative ID purposes is not the same thing as one taken to identify a potential suspect.

That’s the big difference here. And even given the 9th Circuit’s pro-defendant tendencies from time to time, we have a hard time predicting anything but an affirmation of Judge Hollows’ decision when this comes up on appeal.