Criminal Law

by Joshua Brownlee


Officer Ness: Hello again, Aspasia isn’t it?

Aspasia: Hi Officer Ness, how are you? Are you off duty?

Officer Ness: Yeah, it’s my day off and I felt like having one of those fancy iced coffees.

Aspasia: Care to join me, I was wondering if I could get your opinion on something?

Officer Ness: Sure, although I’m not in a very good place today.

Aspasia: Sorry to hear that, what happened?

Officer Ness: A buddy from the police academy was chasing some burglary suspects through a neighborhood. I guess he caught up with them and they gunned him down.

Aspasia: That’s horrible.

Officer Ness: He was a really good officer, everyone at the precinct is down about it. I’m guessing you wanted to talk about the shooting on the Southside?

Aspasia: No, not anymore. I have a lot of respect for you as an officer and I don’t want to offend you.

Officer Ness: I don’t know what I’m offended by. I just have a lot of strong emotions when it comes to shootings.

Aspasia: I think you’re entitled to feel that way. It’s much easier to deal with both incidents separately instead of at the same time.

Officer Ness: It is, that’s why the news channels only play the one story. Doesn’t matter which one, they pick one and forget the other. I guess I am angry they give more coverage to the police shooting a civilian and his dog instead of the officer gunned down chasing suspects. I’m not saying it’s right to feel that way, but it’s how I feel.

Aspasia: But they were very different situations right?

Officer Ness: It seems that way, but I don’t know, I wasn’t there.

Aspasia: Your friend, why was he chasing the suspects?

Officer Ness: There was a 911 call about a burglary in progress. It seems that he ordered three men who matched descriptions to stop and they ran away. He called in to dispatch and chased after them. At some point they shot him.

Aspasia: Did he ever fire his weapon?

Officer Ness: It doesn’t appear that he did.

Aspasia: If he shot them first, he would still be alive?

Officer Ness: Probably, he was a former military guy and a top marksman.

Aspasia: Why didn’t he shoot them first?

Officer Ness: It was dark and he probably didn’t see a gun.

Aspasia: So he risked being shot in the dark rather than shoot a group of potentially unarmed men?

Officer Ness: Yeah, that sounds like him.

Aspasia: Your friend was a good officer and a brave man. I’m not sure about the officers on the Southside.

Officer Ness: Why do you say that? They had similar facts.

Aspasia: How so?

Officer Ness: The officers were responding to a 911 suspicious person call?

Aspasia: How many officers were there?

Officer Ness: Three.

Apsasia: Did they ever see a suspicious person?

Officer Ness: No, they only had a vague description of a house.

Aspasia: How did they know they had the right house?

Officer Ness: They didn’t. It was a vague description on the 911 call.

Aspasia: Did the officers have a relationship with the caller?

Officer Ness: No, just a stranger calling it in.

Aspasia: What did the officers do when they got there?

Officer Ness: They snuck into the backyard and went into the house through the back door.

Aspasia: Did they have a warrant?

Officer Ness: No, I think they would claim exigent circumstances.

Aspasia: What are those?

Officer Ness: Those are situations which exempt law enforcement from the warrant requirements of the Fourth Amendment. For example if an officer is in hot pursuit of a suspect, saving a person from imminent danger, or keeping evidence from being destroyed.

Aspasia: Which exigent circumstance would apply to that situation?

Officer Ness: Maybe keeping someone from eminent danger. The suspicious person could have been in the house and hurt the people inside.

Aspasia: But without a description or some distinguishing factor how do they know who is supposed to be there and who isn’t?

Officer Ness: They don’t.

Aspasia: Why did they shoot the dog?

Officer Ness: It was a pit bull, so I guess they thought it was attacking them.

Aspasia: Was it barking before they went in the back yard?

Officer Ness: No, apparently it was sitting with the home owner, his wife and their one year old child watching a movie.

Aspasia: So the TV was on?

Officer Ness: Yeah apparently.

Aspasia: So the police didn’t see light from the TV flickering in the windows? Burglars don’t usually sit and watch TV in a house do they?

Officer Ness: No they don’t. It sounds like the police didn’t look.

Aspasia: So the dog wasn’t barking and burglars don’t bring attack dogs to rob a house?

Officer Ness: Not on any burglary case I’ve worked on.

Aspasia: So they shot the dog because it started barking at them when they entered the back yard?

Officer Ness: I think they entered the back door of the house and it started barking. That’s when they shot the dog.

Aspasia: Were there indications of forced entry on the back door showing someone had kicked it in or broke the lock?

Officer Ness: No, the back door was just opened.

Aspasia: What about the home owner?

Officer Ness: Apparently the man went to go check on what the dog was barking at and they shot him.

Aspasia: Was he armed?

Officer Ness: No, thankfully he was unarmed.

Aspasia: Why thankfully?

Officer Ness: Clearly those officers were high strung, if he had been armed I don’t think he would have lived through it.

Aspasia: So police can break into your house without a warrant, shoot your dog, and then shoot you in front of your family. No consequences?

Officer Ness: No way there will be consequences. There could very well be criminal charges and most likely a civil case against the officers.

Aspasia: Do you think your friend would have done the same thing?

Officer Ness: No way.

Aspasia: Why?

Officer Ness: He would always put himself at risk before a citizen. Hell, he probably wouldn’t even shoot the dog if he realized he was in the wrong house. Knowing him, he would have let the dog bite him because he was in the wrong. Come to think of it, I don’t see him being in that situation in the first place. He knew when exigent circumstances applied and when they didn’t.

Aspasia: How come he knew but the officers on the Southside didn’t?

Officer Ness: Partly because of the character of the officer and partly because of how cases are brought in our jurisdiction.

Aspasia: What does criminal procedure have to do with it?

Officer Ness: In our jurisdiction prosecutors and judges don’t penalize defendants for bringing cases to trial or motions hearings. This means defendants aren’t forced to plea out their case.

Aspasia: I’m still not following.

Officer Ness: At a motion to suppress hearing or a criminal trial, an officer has to take the stand and justify his or her actions under oath on public record in front of a judge. Those hearings teach officers, especially young ones, the functional application of exigent circumstances. If they screw up the judge and defense attorney jump down their throat.

Aspasia: I see, isn’t there a less humiliating way to do it?

Officer Ness: Maybe, but training and manuals can only do so much. Young officers need to be in the field and have their police work scrutinized. When criminal cases are rarely challenged in court bad practices go unnoticed and get worse over time.

Aspasia: So why doesn’t the criminal justice system do that?

Officer Ness: There aren’t enough judges, prosecutors, and public defenders to handle the current cases. So incentives are put in place for defendants who resolve their cases quickly and penalties in the form of increased sentences for those that challenge the state’s case.

Aspasia:  But doesn’t that help get rid of people that know they are guilty?

Officer Ness: Sure, but sometimes you get a kid who is caught with weed but the search is bad or unconstitutional. The prosecutor or judge may have a policy of doubling the sentence if the case goes to trial or motion to suppress hearing. Defendant ends up entering a plea at arraignment rather than taking a risk and the officer never gets called on making a bad search. The bad habits continues year after year.

Aspasia: So judicial efficiency isn’t always a good thing?

Officer Ness: It makes my job easier and saves the tax payers from hiring more judges, prosecutors, and public defenders. I guess it depends on the community, it’s definitely a messy issue. Most people are like the news channels, they only want to tell one story at a time.

Aspasia: I’ll pray for your friend’s family.

Officer Ness: Thanks.

For the last few decades there has been a growing cultural phenomenon among jurors regarding forensic evidence. Reasonable and intelligent people confuse what’s on TV with what is physically in front of them. Unfortunately these assumptions have dramatic consequences every day in court rooms across the country. The phenomenon comes from the endless barrage of criminal investigation series on television. Shows like C.S.I., N.C.I.S., Criminal Minds, Law and Order, Bones, and Dexter all revolve around clever investigators who are able to catch horrible criminals by using almost magical scientific abilities. The phenomenon also called the “C.S.I. effect” is the belief that all the hocus pocus in daytime TV actually exists and is readily accessible to modern law enforcement agencies. At its core, the “C.S.I. effect” comes from everyday citizens blindly believing that accurate scientific methods exist to identify everything from ballistics (firearms and bullets), hair, fingerprints, blood spatter, breath tests, field sobriety tests, and even DNA evidence without knowing how these disciplines actually come to their conclusions. The “C.S.I. effect” is nurtured by real world forensic analysts and law enforcement with over confidence and biased data.

Let’s take fingerprint identification as an example. It’s assumed by the public that finger prints are unique to an individual and that a match is conclusive evidence of placing someone at a crime scene. In actuality, there is a great deal of disagreement on how many points of similarity should be observed before a match is declared. There is also disagreement as to whether fingerprints are unique, but let’s take that assumption at face value. In fingerprint identification matches are made by finding similar points (the little squiggly curves and lines in your finger print) in a print taken from a crime scene with an already existing sample from a suspect. The first issue, how many points of similarity do we need? Do we need 5, 9, 14, or 21 points of similarity to get a clear match? Forensic scientists can’t seem to agree. The logical question is then: why don’t they just check 30 points to be sure? Unlike TV, most forensic labs have only a few people qualified to test samples. Most forensic labs also have large jurisdictions sometimes covering an entire state or region. Agencies are handling large numbers of samples with limited staff. Given that reality, it’s easy to see why law enforcement and forensic labs would be content to have a reduced number of points to make an identification. When called into trial, analysts testify they have so many hours of training or went to some institute of forensic science. They’ll discuss the procedures of their lab and how it’s double checked with other forensic scientists. The word science is thrown in as much as possible. In truth most forensic disciplines are not peer reviewed by outside groups and more importantly, neither is the data they rely on. Studies that back forensic research are often paid for and conducted by law enforcement agencies or labs that have a clear law enforcement bias. When cornered on inconsistencies the response is usually “well it’s an applied science and experts get better with more experience”. That kind of phrase is a red flag. Scientific results shouldn’t depend on subjective experiences. Once a method is known, a student and teacher should have the same statistical results using the same method. It’s not to say that there is no place for forensic studies. It is fair to say that forensics is more of an art than a science. So analysts who testify in court about fingerprints are making educated guesses that two pictures have similar points.

Another problem with fingerprints is the lack of data on how frequent certain characteristics are in a given population. For example, human beings look different. To find an individual we need to identify certain traits that identify that person from the rest of the species. So let’s take 7 individual factors to make an identification. The factors are: height, hair color, eye color, skin color, foot size, number of teeth, and number of fingers on each hand. There are some variances in these points of identification but many are so common they are not reliable for blind match. It may help an investigation, but does it really close the case to know a 5’9, brown haired, blue eyed, white person with 32 teeth, 10 fingers, and size 10 shoe may have been at the scene? Notice the sex of the suspect wasn’t even identified. This is called frequency testing. Much of the controversy revolving around forensic analysts is due to a lack of frequency testing.

Even for respected peer review sciences like genetic identification with DNA evidence, where frequency testing is supposed to be part of the process there are still problems. Ideally analysts can run allele frequency testing to see how common a particular allele is in a population. But the analyst will only check frequency if it’s requested. Law enforcement agencies will often not request DNA frequency testing because they assume (as do many jurors) that a match of alleles is a solid DNA identification. When law enforcement forget to ask for frequency testing we end up with DNA alleles matching but without an indication of whether an allele has a 99.99% chance of being unique to the individual or if the allele identified is extremely common and could match any sample from any person in the court room.

So why don’t defense attorneys just say all this to the jurors? They do, but one of the most difficult things to overcome when discussing these issues is the blind trust and romantic fascination people have for the Federal and State agencies that analyze samples. Jurors see the expert and think of Ducky from N.C.I.S., Dexter, or that lady from Bones. Now the defense attorney has the difficult job of telling 12 people that’s just a fictional story. The result, silent broken hearts in the jury box (for some people this is like being told about Santa Claus and the Easter Bunny), and the defendant is often blamed. It makes sense. What if Dexter or Ducky from N.C.I.S. were just using junk science to determine a fact? The good guys go from being educated investigators to mystic gamblers fighting crime. The certainty of being right is gone. Dexter isn’t as romantic if he’s torturing innocent people based on a hunch. To be fair, most forensic analysts are trying to do their part in a criminal investigation and generally have good intentions. That being said, good intentions don’t equate to reliable results or remove subjective inaccuracies.  The Washington Post recently ran a story about F.B.I. analysts exaggerating testimony about hair identification. The story stated “Of 28 examiners with the FBI Laboratory’s microscopic hair comparison unit, 26 overstated forensic matches in ways that favored prosecutors in more than 95 percent of the 268 trials reviewed so far.”

We may be tempted to think law enforcement still got the right guy because of other evidence, but already 4 cases have been exonerated. This means there is uncertainty, one may even say reasonable doubt in these identifications. The Washington Post also states “cases include those of 32 defendants sentenced to death. Of those, 14 have been executed or died in prison.” Hopefully there was other evidence to convict, but now a society that values justice and fairness must spend millions of dollars reinvestigating hundreds of cases across the country. Those resources don’t come out of thin air. Scandals like the F.B.I. hair analyst story are uncovered every few years and yet society still clings to the magic of forensic science. We can make reasonable fixes that both support law enforcement and protect defendants from voodoo methods of identification:

  • If an area claims to be science, open all the data to the public and let it be peer reviewed by the scientific community as a whole.
  • Teach scientists who are not obligated to law enforcement these techniques and see if their conclusions are statistically reliable.
  • Hire scientists (people that understand statistics, biology, and chemistry) not analysts to conduct these tests (some forensic specialists have only a high school diploma). When a Defendant is evaluated for competency to stand trial in a criminal hearing a Doctor does the evaluation. Imagine if we let a high school graduate with a few classes in psychology determine a competency evaluation?
  • Finally, if the government and law enforcement agencies want to use these methods let’s stop over working and under paying staff poorly trained analysts. Instead, let’s use some of that forfeiture money to properly hire the right number of people who have biology, chemistry, and statistical backgrounds to conduct these scientific tests.

Everyday forensic evidence is being used to convict people in the criminal justice system from in cases ranging from D.U.I. and drugs to rape and murder. Let’s do it right the first time so society doesn’t have to say “sorry, we destroyed your life, we weren’t as sure as we thought.”

Joshua Brownlee

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