False confessions are a strange animal. Most people just can’t conceive of why anyone would ever confess to a crime they didn’t commit, particularly serious crimes like homicide or rape. But when you look closely at the many cases where exactly that has happened, you see a familiar recurring pattern: defendants in custody are simply worn down after marathon interrogations by teams of police officers and eventually they just yield to end the torture. It’s a well documented phenomenon and it could be avoided completely by simply recording the interrogation for independent review.

A blue-ribbon panel in California has been studying the issue and has just issued its findings, joining the many others who have looked at the matter and come to the same conclusion that technology can help. I’ve written on this topic before and, unlike that bill in Florida that was opposed by cops who were concerned that it wouldn’t be sufficiently funded by the legislature, this time no one is opposing the idea.

Testifying before the panel were two people who falsely confessed to crimes they could not have committed and together did over 30 years in prison as a result. Their stories are typical of others who could not resist the force of coercive custodial interrogations at the hands of interrogators more interested in closing cases then catching bad guys. It’s about time someone started reviewing their “work”.

Read the California Commission on the Fair Administration of Justice’s Tentative Recommendations Regarding False Confessions here.

Read the full story here.

RP

If you don’t yet believe that individual liberties are being continually eroded, wait till you hear this one. The United States Court of Appeals for the District of Columbia (otherwise known as the Future Supreme Court Justices of America), in its infinite wisdom, recently upheld an FCC regulation that requires providers of Voice Over IP (VOIP) technology to offer mechanisms to allow law enforcement to trace their phone calls.

VOIP is a technology that was just bound to happen. The idea is to bypass traditional phone lines and use the worldwide Internet infrastructure to place phone calls. It’s a remarkable paradigm shift since there is no notion of “long distance” over the Internet, it costs the same for a New Yorker to browse a web site in Boston as a site in Sydney, Australia. Similarly, when you’re using VOIP it costs the same to place a phone call to Kansas or to Uganda. You can imagine what traditional long distance carriers think about that idea.

Currently, there is no traditional method available for tracing phone calls made using VOIP, since the Internet uses a completely different technology for routing data packets. Phone switches know a lot about the data that they’re routing, and that information is easy to hand over to the police. That’s why it’s so easy for phone calls to be traced. Internet routers aren’t that smart. Enter law enforcement. In order to make sure they’re able to listen in on ALL our phone calls, the government recently got the FCC to implement the regulation requiring VOIP providers to have call traceability in place by 2007. The problem is, any system that makes it easy to conduct surveillance on VOIP calls means that it’s going to be just as easy to monitor everyone’s Internet traffic. This is a really bad idea for two reasons. First, it will crush VOIP providers who will be forced to spend huge sums of money researching new technologies that will allow easy tracing of Internet-routed packets. But the bigger problem in my view is what this means for the Internet. All Internet usage will be traceable, just like your phone calls. And that means that the government will also be “listening in” on your browsing.

Adding to this problem is the reality that the Internet is global, it’s not a U.S. institution. How can the U.S. require global VOIP providers to comply? They can’t. The result will be that all VOIP business will go to international firms located in countries not stupid enough to do what we’re doing. All U.S. VOIP companies (e.g., Cisco, Vonage) will lose this business.

Smart, eh?

And in the event the NSA doesn’t find any terrorists using VOIP, don’t worry, the effort won’t be wasted. It won’t be long before police are using this development to monitor all Internet usage in order to find out who’s browsing pornography.

One critic of this development is Vinton Cerf, one of the people credited with creating TCP/IP, the protocol that drives the Internet. Cerf recently spoke out against the FCC provision, citing huge security concerns. I was struck by what was missing in his criticism: any complaint that our individual privacy rights are deteriorating.

But I guess that train left the station long ago.

Read the story here.

RP

I was asked recently to write an article on Fingerprints and while doing research I came across the story of Victor Reyes, a Florida man who was put on trial for murder based on a fingerprint found at the scene and ultimately linked to him. What caught my eye was the fact that the latent print used against Reyes was digitized by police and “enhanced” with a couple of image manipulation software programs. Adobe PhotoShop is perhaps the most well-known imaging software in the world; the other product, MoreHits, is less well known but has tremendous presence in the law enforcement latent print examiner community.

Use of such image enhancing products raises tough questions about chain of custody issues and preservation of evidence. Police using these products swear that they’re not altering the image in any significant way, just “enhancing” it to make it more “readable”. But how can we know this? Moreover, once it’s accepted that they’ve altered the image in the first place, how can we know how far they went with their alteration? What record is there? What kind of audit trail is there detailing what transformations the image has taken while in police custody?

The digital forensic fingerprint community is trying to address these problems with things like log files that track changes made and digitally encrypted original images that are preserved while enhancements are made to copies. These changes are welcome, but I don’t believe they’re enough. The problem is that latent fingerprint identification is inherently a subjective process where human judgment is called upon to compare minutiae in one set of ridgelines to another, and the degrees of difference are sometimes very subtle. After all, the top FBI experts in the Brandon Mayfield case declared a “100% match” between the latent recovered in Madrid, and Mayfield’s prints, and even his own defense expert agreed that it was a 100% match. And they were all wrong. With this much subjectivity affecting the process, it’s not clear what good it will do to preserve the original, unedited images without a better understanding of why examiners come up with identifications in the first place. Adding “enhancements” to the mix just clouds the issues further by introducing new ways to affect the subjective judgment without any understanding of how. What effect will we see from these “small enhancements”, and which way will they cut? In favor of more false positives? Fewer false positives? No one knows.

As for Reyes? He was aquitted. When asked about the verdict, the jury foreman (who was himself a computer imaging software engineer) expressed the jury’s unanimous skepticism of the technology employed by police. There’s that CSI effect again.

Read about the Reyes case here.

RP

An interesting new case out of Pennsylvania portends some real conflict ahead. When a Pennsylvania man was tried for murder, prosecutors created a Computer-Generated Animation (CGA) movie depicting their version of the murder. The short film was generated with software commonly used by animators and was based on actual forensic evidence offered at the trial. The defendant objected to the admissibility of the evidence and after being convicted by the jury, assigned this as error on appeal.

The Supreme Court of Pennsylvania disagreed and affirmed the conviction, stating:

Society has become increasingly dependent upon computers in business and in our personal lives. With each technological advancement, the practice of law becomes more sophisticated, and commensurate with this progress, the legal system must adapt. Courts are facing the need to shed any technophobia and become more willing to embrace the advances that have the ability to enhance the efficacy of the legal system….This is, after all, the twenty-first century.”

This doesn’t just “enhance the efficacy of the legal system”, it “enhances the position of he who puts the CGA in front of the jury”.

The defense had argued strenuously that the CGA unduly influenced the jury because of its visual impact. The court rejected this argument based on a rather casual acceptance of a study finding that when nothing new is presented, the CGA would have little impact. I’ll admit straight away that I haven’t done or seen any studies, but my intuitive reaction is that this is flat-out wrong. The state’s CGA depicted *their* version of a disputed self-defense killing, and showed the defendant placing the body near a knife on the floor, and showing the defendant shooting his wife in the back. These aspects of the case were hotly disputed and I just can’t help thinking that the visual images presented by the prosecution kept reverberating over and over again in the minds of the jury as they deliberated. How could they not?

Sure, the CGA did not depict anything *new*, the evidence was testified to in court and all this did was reflect it. More like amplified it, if you ask me. Can anyone really question the proposition that as the jurors sat in the jury room deliberating what happened, the CGA images of what the state said happened were locked in their minds as a reality of its own?

The real lesson from this case is not that the defense is ever going to win arguments like this, but rather that defense attorneys everywhere need to counter this kind of play with their own technology counterpunch and produce their *own* CGA videos. Resourceful (i.e., wealthy) defendants everywhere are going to have to meet this new standard of demonstrative evidence, or yield the advantage to the prosecution.

Kudos to the prosecutors for being smart enough to see the obvious advantage inherent in locking down the visual language of the case. Boos for the court that wasn’t able to grasp the real significance of this case and dismissed it with platitudes about the 21’st century. (boggle)

Read the story here.

RP

In a very close decision, the US Supreme Court took the unusual step of overruling the Court of Appeals and granting a deathrow inmate the opportunity to raise new claims of actual innocence through habeas corpus proceedings that the lower court ruled were precluded under existing legal doctrine. Prisoners in such cases are required to make a huge and virtually impossible showing in order to get this type of relief, and even the court majority called it “the rare case”. Justices Roberts, Scalia and Thomas dissented and Alito did not participate, making it a 5-3 decision (that probably would have been 5-4 had Alito participated - just a guess). The case is House v. Bell.

But I think something more important is going on here. The groundswell of public opinion is being felt on the issue of wrongful convictions of innocent people and the role that DNA can play in setting them free. Movies like After Innocence and the outstanding work of the Innocence Project are keeping this issue in the limelight, and it can’t help but ultimately create a national trend of awareness that, yes, innocent people really do get convicted and, in some cases, executed. The pervasiveness of DNA testing and the growing number of resulting exonerations, along with the CSI effect as a result of people being saturated with high tech crime shows glorifying forensics, all add up to an inescapable responsibility of the Court to Do the Right Thing.

Hope and expect to see more of this to come.

Read the Supreme Court opinion here.

RP

I’ve written here about defendants using technology to convict themselves, but this one takes the prize. Justin Barber is on trial in Florida for murdering his wife. He claims that a mugger accosted him and his wife as they walked along a beach, shooting them both. Unfortunately for Mr. Barber, forensic computer experts found evidence on Barber’s laptop computer that on the night of the murder he downloaded a Guns N’ Roses song with the following lyrics:

“I used to love her, but I had to kill her/ I had to put her/ Six feet under/ And I can still hear her complain,”
“I knew I’d miss her/ So I had to keep her/ She’s buried right in my backyard,”

And that wasn’t enough. Barber apparently deleted the song after the murder. Of the 1700 or so songs on his computer, it’s the only song he deleted. And then there were the Google searches for “trauma cases gunshot right chest”, “medical trauma gunshot chest”, and the ever-popular “Florida divorce”. Prosecutors sat smugly as they played the Guns N’ Roses song to the jury, complete with synchronized video lyrics.

Yet more evidence of the impact of technology in the courtroom. You’d think more people would be getting the message that computers leave trails behind users, particularly with the pervasiveness of crime TV reinforcing the point. Apparently not.

Read the full story here.

RP

I’ve written previously about the decline of GSR (Gunshot Residue analysis) as a forensic mainstay here and here, as have other commentators. And now the FBI, operators of the biggest forensic lab in the world, have announced that they will no longer perform GSR analysis in their labs. I have no idea why people are expressing shock at this development, it’s been brewing for some time and the conclusion was inevitable. The truth is, it’s a flawed technology that produces too many false positives and exposes one of the bigger problems in the forensic lab community: rampant contamination.

Of course, the FBI won’t admit that their decision is based on the failure of GSR to produce reliable results, for whatever reason. Their spin follows the trend in declaring that there are other “higher priorities”. Meaning, “we prefer actual science”. I’m not sure what they hope to gain from this spin, because every defense lawyer in the U.S. that’s ever lost a case based on GSR is now preparing their petitions anyway.

Read the story here.

RP

I just finished posting the note about the lawyer in Olympia that got slapped by his client during jury selection when someone brought to my attention news that a defendant in Boston tried to strangle his lawyer in trial. Is this catching or what?

Read about it here.

RP

I know this has nothing to do with technology in the courtroom, but I thought it was good for a laugh anyway. Defense lawyers are used to getting slapped around in court by judges, cops and prosecutors. But … by their clients? Larry Jefferson was still picking a jury for his client Justin Jacobson when Jacobson hauled off and hit him, forcing the judge to declare a mistrial in front of some very startled jurors.

Read this amazing story here.

RP

Hard to believe, but a few dozen law enforcement officials from five Florida counties packed a committee room as a show of opposition to a bill that would require them to record custodial interrogations. The bill (HB 681) would require interrogations to be recorded as a prerequisite to admissibility. Their reason? They claim it’s the lack of funding for equipment that would be required to record interrogations. I suppose I’d give that more credibility if I saw them showing up to protest legislation designed to increase incarcerations despite a lack of funding for new jails.

RP