Let’s Pretend The Truth Is Important (For Just A Minute, Anyway).

Kids who may be victims of abuse are put through something called a “victim sensitive interview.” Since children, in theory, don’t necessarily want to talk about being abused the entire interview process is a staged affair with few onlookers (that the child knows about, anyway) in a comfortable setting.  These interviews are (or should be) conducted by investigators with lots of training as conducting them wrong runs the potential double-hazard of either not getting enough information from the child, or getting suggested (ie. unreliable) information from the child.

We spend millions of dollars each year in an attempt to get objectively genuine information from children who may not know how or may not want to discuss what happened.We want the truth from those kids and we want it in a way that it can’t be questioned.

That makes sense.

There is no shortage of studies explaining both best techniques to produce the most reliable information as well as the techniques that produce garbage information. There are experts who have dedicated their careers to the study and even set up labs to test the suggestibility of interviewed subjects.

There’s a lot of time, money, and effort spent ensuring the truth comes out- after all, if the interviewer screws it up the consequence may be failing the most frail and vulnerable of people.

Potential abusers go through interviews, too. They’re not called “victim sensitive interviews” because they aren’t anything like the “victim sensitive” process. They’re called “interrogations.”

Since potential defendants, in theory, don’t necessarily want to talk about being abusers the entire interrogation is a staged affair.  It typically takes place in a spartan room devoid of comfort which may have a couple of investigators and who knows how many more watching over a video monitor.

These interviews are conducted by a trained investigator using a psychologically suggestive technique called the Reid Technique. Like the victim sensitive interview techniques, the Reid method has been studied and analyzed for years yielding no shortage of people who’ve acquiesced to the psychological games and confessed to crimes (even murder) that they factually did not commit.

While it can be reliable it also can be extremely unreliable- with the difference often not being in the training of the interrogator, but rather the interrogator’s preconceived belief of what the defendant should be saying.

If the risk of a poor child sensitive interview technique is an abuser going free, decades of exoneration have shown us that the risk of poor Reid Technique is caging up people that the police have already determined are guilty even when they aren’t.

Notwithstanding the number of both practical (ie. Numbers of “confessed” criminals being declared actually innocent in post-trial proceedings) and scholarly negative review of interrogations done with Reid, it’s still commonplace in interrogations throughout the country. You’d think that a system which so poorly distorts the truth might be jettisoned in favor of something more reliable but, sadly, the system is focused only on “proof beyond a reasonable doubt” (and not truth).

Both victim sensitive interviews and interrogations use well-researched methods to try and convince people who’d remain quiet to tell their deepest secrets to strangers.  The stark contrast in reliability between the two has less to do with the subject of the interaction than it does the beliefs and leading nature of person conducting the interview.  This is troubling.

What actually happened or what was actually in somebody’s mind should be more important than the beliefs of the interviewer, and it only makes sense that we should be constantly working on better and more objective ways to get at that information.

Of course, we would only do that if the truth really matters. Which, with respect to the criminally accused, it likely never will.

 

Before We Kill Dylann Roof Let’s At Least Pretend To Give Him A Fair Process.

I don’t want Dylann Roof to die. I know that if anybody in the country right now deserves to die, it’s probably Dylann Roof.

However, killing him is putting a seal-of-approval on the legal journey that led him to death row. From the police investigation, to the pretrial motions, trial and death sentencing hearing, we shouldn’t give ourselves the power to kill people if they haven’t had the benefit of an accurate and precise system at every step of the way. Continue reading “Before We Kill Dylann Roof Let’s At Least Pretend To Give Him A Fair Process.”

Saying Nice Things (about Dylann Roof).

It might not have been the first day I started at the Public Defender’s office, but it certainly wasn’t long after.  I knew nothing about the day-to-day operations of a criminal defense attorney (law schools don’t teach such things). I was about to be turned loose into the confusing, complicated, chaotic world of juvenile delinquency court and my new boss was trying to boil my role down to terms my inexperienced self could easily grasp.

“Sometimes,” he said, “your job is to be the only person in that courtroom willing to say something nice about a kid.”

Continue reading “Saying Nice Things (about Dylann Roof).”

I’d Rather Be Good Than Lucky.

I once represented a kid who did dumb kid stuff. I still represent kids who do dumb kid stuff, but this kid was different. He did some really dumb kid stuff. Felony dumb.  Like too many of these dumb-kid felony stories, this one involved a kid from a decent home in a decent neighborhood.  He’d clearly watched Scarface after drinking one too many Red Bulls and thought that the only way out of the “mean” suburbs was his balls and his word.

And his drugs, obviously.

He tried to set himself apart in the marketplace with a unique distribution strategy. He was the “Peapod” of narcotics.  He offered a personal delivery Continue reading “I’d Rather Be Good Than Lucky.”

“Criminal” May Be An Entertaining Podcast, But It’s Damn Sure Not Fair.

My client’s name isn’t important so we’ll call him C.H.  He was minding his own business in Pensacola, Florida when he was arrested. The police claim he’d mugged several people in town over the previous week.

C.H.
C.H.

One of the purported victims was peculiar. He wasn’t peculiar by virtue of his long hair or beard. Nor was he peculiar in that he was wandering the dark streets alone at night with no real destination in mind.

He was peculiar because he doesn’t remember being knocked out, he doesn’t know who knocked him out, and he doesn’t know how he was Continue reading ““Criminal” May Be An Entertaining Podcast, But It’s Damn Sure Not Fair.”

Screw you, I’ll vote how I want to (AKA Charles Blow can stick his thoughts where the sun don’t shine).

I’m not comfortable with the idea of Donald Trump as president. On the other hand, I’m not comfortable with the idea of Hillary Clinton as president, either.

I tend to have a different set of priorities than those in the national spotlight.  I’m primarily concerned with issues like putting teeth into the confrontation clause, figuring out how the ancient language of “unreasonable searches” applies in a world not imagined by those who invented the phrase, and wondering if I’m the only one who actually sees the term “excessive bail shall not be required…” to kick off the Eighth amendment. You know, issues of freedom.

That’s not to say that matters of national debate don’t concern me. They just tend to fall lower on the list of pressing things.  Because of that, I tend to vote 3rd party.  It’s been that way since I cast my first vote (for Ross Perot, duh) in 1992.

Continue reading “Screw you, I’ll vote how I want to (AKA Charles Blow can stick his thoughts where the sun don’t shine).”

The Twitter Law Seminar That Never Will Be.

Overblown Moderator’s Intro:

How many of you could use help with the internet? Today we’re happy to have an “expert” that can help you market on the world wide web. He’s an accomplished twitterer with over 11,000 impressive tweets, the back of his head was featured on Huffington Post, and he’s even got his very own web page!  We are pleased to have Matt Haiduk today to tell us how you should market your pracrice on twitter!

The Awkward Ice Breaker

Happy to make it here today, although I know the intro was unnecessary because you saw me tweet about how I’d be here, right? [feigned laughter by 3 polite people]  Show of hands, how many of you here today use twitter in your law practice. [3 people raise hands]  Ok, 3? That’s pretty good. Normally it’s nobody.  How many of you 3 let a marketing company post your tweets? [2 people raise hands] Well, after today that’s going to change!  It’s so simple and easy you won’t want to waste the money. Continue reading “The Twitter Law Seminar That Never Will Be.”

Because I Love It.

“How do you sleep at night putting in toilets for pedophiles?”

-Things nobody ever says to plumbers.

“I could never do what you do… you help drunk drivers save money on taxes so they can buy more beer.”

-Something accountants never hear.

“How does it feel knowing you sell hardware to criminals?”

-Questions the guy at Home Depot doesn’t have to answer at social gatherings.

Continue reading “Because I Love It.”

Making a Murderer: Did Steven Avery Actually Do It?

“What do you think about Making a Murderer?”  By the end of December I had to answer that question several times a week.  The answer was, of course, “I don’t know.”  I hadn’t really planned to watch another criminal trial documentary.

I don’t own the remote, though. I bought the remote. Paid for it with my own money, even.  I don’t get to touch it in any substantive way other than passing it over to The Boss, though.

Now I’ve seen the whole series. People are still asking me what I think about it. I still don’t know if he is “really innocent” or guilty.  I don’t care. It doesn’t matter. Continue reading “Making a Murderer: Did Steven Avery Actually Do It?”

Ponderings on Possession, Part Two.

I’ve struggled with Windypundit’s possession post.  If you’re not keeping pace, last week he brought up an interesting scenario (or two) resulting in people innocently going about their business but somehow obtaining items it’s illegal to possess. I took a stab at giving what I thought would be decent advice based on the scenarios presented (and also tried to explain the reasoning).

It wasn’t particularly easy, but many things in the world of criminal defense aren’t.

The shame of Draughn’s legal problems isn’t really the absurdity of possession crimes, though. While the hypotheticals do a great job highlighting that absurdity, the root of their difficulty is in a  couple of much more pervasive aspects of the system. Continue reading “Ponderings on Possession, Part Two.”