Sunday, July 8, 2018

The Exoneration of Persons Convicted of Misdemeanors That Were Never Committed

There are a number of ways a person convicted of a crime can be exonerated. It can be proved that the person was not the perpetrator, for example by DNA testing of biological evidence left by the perpetrator of the crime excluding the defendant. There can be proof of an iron clad alibi – such as proof that the defendant was incarcerated or in another country when the crime was committed. It can be be proved that someone else committed the crime, for example by video evidence of the commission of the crime.

One way a person can be exonerated is by proof that the crime was never committed. For example, persons have been convicted of murder only for the supposed decedent to subsequently be proved to still be alive. And, unless one believes in witchcraft, one can safely assume that the 20 persons executed for witchcraft in Salem were convicted and killed by the state for crimes that were never committed.

Most attention to exonerations in the current innocent movement has been focused on persons proved innocent of serious felonies  -- homicides, sex crimes, and assaults – by DNA evidence. But, as described in an important and provocative law review article, THE INNOCENCE MOVEMENT AND MISDEMEANORS, 98 B.U. L. Rev. 779 (June 2018) by Jenny Roberts , the Co-Director of the Criminal Justice Clinic and Associate Dean for Scholarship, American University Washington College of Law, lab tests and video evidence have demonstrated that large numbers of persons have been convicted of misdemeanors, such as drug possession, often by guilty plea, for crimes which were never committed.

For example, lab tests have demonstrated that there were no illicit drugs. Videos have established that the charged crimes were not committed (such as by showing police planting evidence). As the article discusses, given the huge number of person who are arrested and convicted of misdemeanors, and the impact of such convictions, it might be helpful to direct far more resources to both identifying  such cases and dealing with the the police and prosecutorial practices which have enabled them.

I taught a wrongful conviction cause for a decade and, apart from a discussion of the Ramparts scandal at Los Angeles Police Department , did not even discuss the issue of exoneration of people convicted of misdemeanors. I strongly believe that this is article is worth reading as it raises numerous important questions regarding the meaning and significance of such exonerations and how we should respond to them to prevent future convictions of innocent persons.

Saturday, July 7, 2018

Pro se litigant obtains a reversal on appeal

In the "even a blind squirrel finds a nut" category, in the July 6th packet of Appellate Division, Fourth Department decisions, perennial litigant and pretty good jailhouse lawyer Isiah Williams won a reversal of his conviction, pro se.  Mr. Williams was previously acquitted of the possession of two forged checks and convicted of possession of another. After the Fourth Department reversed that conviction, at the retrial the Ontario County Court allowed the prosecutor to introduce evidence of defendant's possession of the checks he had been acquitted of possessing. Unsurprisingly, the Fourth Department found that this was wrong, and reversed defendant's conviction. Good lawyerin' Mr. Williams. Read the decision here.


Friday, July 6, 2018

Monroe County Public Defender's Office 50 year anniversary celebration

Greetings to all alumni/dinosaurs of the Monroe County Public Defender's Office. On September 14, 2018 from 5:30 p.m. - ??? there will be a celebration of 50 years of service for the Monroe County Public Defender's Office at Tournedos at the Inn on Broadway 26 Broadway, Rochester, NY 14607. There will be a cash bar, grazing tables, music, "Get out of Jail" t-shirts and stuff, and lots of present and past PDs. As we firm things up we will pass along more information here as it becomes available; be sure to check back. Please help us reach out to out-of-towners. Don't assume we have reached everyone locally or otherwise. Finally, we will likely ask for deposits as soon as we have a price point to help with expenses (again check back for info on how much and whom). This should be a terrific celebration of you, the office, the mission of the office, its future and the present staff. Please come help us celebrate, have fun, tell war stories and share a few.

Monday, July 2, 2018

How reliable are DWI blood test results? Well, it depends . . .

In a recent DWI prosecution, ETKS associate Paul Meabon moved to preclude the introduction of the results of a sample taken by a registered nurse at the direction of a Rochester Police officer pursuant to Vehicle and Traffic Law § 1194(4)(a)(1)(I), which provides, in relevant part that “[a]t a police officer’s request … a physician, a registered professional nurse, a registered physician assistant, a certified nurse practitioner, or an advanced emergency medical technician as certified by the department of health” may withdraw blood to determine the blood’s alcoholic or drug content.
Mr. Meabon argued that because the discovery provided revealed that the sample had not been properly collected or stored, any test results relating to that sample would unreliable and therefore irrelevant.
In New York, a blood draw must be “safe, reliable” and “impose no more physical discomfort than is reasonably necessary” (Matter of Abe A., 56 NY2d 288, 297-98 [1982]). Reliable methods fall within “accepted medical standards” including, for example, the application of an “aqueous solution of a nonvolatile antiseptic” on the area of skin where blood is drawn (see id., referencing Schmerber v California, 384 US 757, 771-772 [1966]; 10 NYCRR 59.2[d]). A blood sample collected outside statutory guidelines must be suppressed (see People v Olmstead, 233 AD2d 837 [4th Dept 1996]; People v Ebner, 195 AD2d 1006, 1007 [4th Dept 1993]).
Along with the method of its collection, a blood sample’s reliability depends on the sample’s storage. In Mr. Meabon’s case, the nurse stored each blood sample in a NIK Public Safety, Inc. vacutainer tube containing chemicals to safeguard the sample’s integrity.
One chemical contained in the tube, 20 milligrams of potassium oxalate, is a powdered anticoagulant that hinders blood’s production of thrombin, an enzyme that stimulates clotting (Peter Gerstenzang & Eric H. Sills, Handling the DWI Case in New York § 38:10 [2015-2016 ed.]; see 10 NYCRR § 59.2[c][4][ii] [“blood shall be deposited in a clean container containing a solid anticoagulant”]). Clotting in a blood sample concentrates alcohol in the sample’s liquid, the portion tested to determine blood alcohol content, causing an erroneously high result (see People v Boyst, 177 AD2d 962 [4th Dept 1991] [blood sample without anticoagulant admissible given laboratory’s use of clotting conversion factor]).
A second chemical, sodium fluoride, is a preservative staving off fermentation as a sample decays (Handling the DWI Case in New York, supra at § 38.11). A blood sample without a preservative ferments during storage (even while refrigerated) and, in some cases, raises a sample’s alcohol content 0.25% or higher (id.).
Some careful attention to a critical variance between the instructions for the blood draw kit and the procedures followed presented an issue.
Because clotting and fermentation undermine a blood sample’s test results, the blood draw kit used instructs the nurse to “slowly invert the tubes at least five times immediately after blood collection” (see id. at § 38:8). Likewise, the kit instructs the officer supervising the blood draw, to “INVERT [the tube] slowly and completely at least 20 times” to “ensure proper mixing with the anticoagulant powder” (see id.)
In Mr. Meabon’s case, however, neither the nurse nor officer inverted the tubes as directed before sealing the tubes in the kit’s mailer box. As a consequence, the anticoagulant and blood were not properly mixed and the blood could have clotted before testing. From the test results provided, it was unclear whether the testing laboratory factored clotting into the test results (see Boyst, supra). Furthermore, the test results provided failed to indicate how the laboratory stored the tubes, whether the tubes contained sodium fluoride, or whether any preservative worked to stave off fermentation during the blood sample’s pre-testing decay.
Some issues to consider in your next blood draw DWI case.

Wednesday, December 20, 2017

Mandatory Jury Instruction in Cross-Racial Identification Cases

by Jill Paperno,



Last week the Court of Appeals issued a decision requiring that if requested, a jury charge must be given on the potential lack of reliability of identification evidence in cross-racial identification cases.  People v. Boone, 2017 N.Y. Lexis 1722.    Notably, the Court did not require expert testimony on cross-racial identification, or even cross-exam of the witness, for the charge to be given.   The Court stated:

In light of our discussion of the cross-race effect, which has been accepted by a near consensus in the relevant scientific community of cognitive and social psychologists, and recognizing the very significant part that inaccurate identifications play in wrongful convictions, we reach the following holding: in a case in which a witness's identification of the defendant is at issue, and the identifying witness and defendant appear to be of different races, a trial court is required to give, upon request, during final instructions, a jury charge on the cross-race effect, instructing (1) that the jury should consider whether there is a difference in race between the defendant and the witness who identified the defendant, and (2) that, if so, the jury should consider (a) that some people have greater difficulty in accurately identifying members of [*18]  a  [**8]  different race than in accurately identifying members of their own race and (b) whether the difference in race affected the accuracy of the witness's identification. The instruction would not be required when there is no dispute about the identity of the perpetrator nor would it be obligatory when no party asks for the charge.

People v Boone, 2017 N.Y. LEXIS 3722, *17-18, 2017 NY Slip Op 08713, 7-8

Jury charges usually used by judges can be found on the Office of Court Administration website here http://www.nycourts.gov/judges/cji/index.shtml.  Charges are divided into charges of general applicability and penal law charges.  Browse them sometime; you might be surprised at what is in there - especially the charges of general applicability.  You can download them in pdf or wordperfect.  If you have a mobile device and a file sorting app like Goodreader  you can download them in pdf and sort them and have them easily available for trial.  You should always be reviewing the jury charges in any case you are litigating well in advance of trial.

The jury charges on the OCA website do not contain mandatory language, but instead suggested language.  That means a charge may be flawed in general, or as it applies to your particular case.  You can always submit your own jury charges too, if there are particular legal or factual issues that warrant a unique charge.  Remember, if you don't get a charge you want, or the judge reads a charge you believe is improper, you must object after the charge when the judge asks if there are any "exceptions to the charge" or if the judge asks if you have any requests following the charge.  That is usually done by approaching the bench.  Make sure your requests are on the record.  Also, if you've submitted written charges, make sure they are marked as court or defense exhibits so they are made part of the record.  (Documents not marked as exhibits and made part of the record do not exist for purposes of appeal.  So mark them and note what they are verbally on the record.)

If you have a one witness ID case and there is no confession or other evidence, you may be entitled to what is referred to as the "Expanded Identification Charge."  It's a good one.  Here it is:  http://www.nycourts.gov/judges/cji/1-General/CJI2d.Identification-One_Witness.pdf  I'd suggest given the growing body of information about eyewitness identification, you may want to request the expanded charge even if it's a two witness ID case with no other evidence.

The Court of Appeals in Boone included the cross-racial language from the one-witness jury charge in its decision:

 "You may consider whether there is a difference in race between the defendant and the witness who identified the defendant, and if so, whether that difference affected the accuracy of the witness's identification. Ordinary human experience indicates that some people have greater difficulty in accurately identifying members of a different race than they do in identifying members of their own race. With respect to this issue, you may consider the nature and extent of the witness's contacts with members of the defendant's race and whether such contacts, or lack thereof, affected the accuracy of the witness's identification. [*17]  . . ." (CJI 2d [NY] Identification [One Witness]; CJI 2d [NY] Identification [Witness Plus]).

People v Boone, 2017 N.Y. LEXIS 3722, *16-17, 2017 NY Slip Op 08713, 7


That means that even if it's not a one witness case, you can still request this language (or stronger if you craft your own) be used in your request to charge on cross-racial identification.   My understanding is that there are efforts underway to create a cross-racial identification charge even as we speak (or write).

Friday, October 27, 2017

Ch…Ch…Ch…Changes (in the law of identification evidence)

by Jill Paperno,
Author of "Representing the Accused: A Practical Guide to Criminal Defense"

As you may know, there are several new statutes that were passed or amended this year which will have a major impact on criminal practice.  They include statutes which raise the age for criminal responsibility and change courts in which cases of youths to whom the statutes apply are handled, statutes which require recording of interrogation in some cases, and changes in the law relating to identification evidence. 
The newly written statutes are dense and awkward, and it takes a few reads (and perhaps some additional interpretation and a drink or two) to understand what they are saying.  The following comments about the changes in statutes relating to identification evidence are an effort to make this muddy mess a bit clearer. 

The statutes amended and/or created include CPL 60.25, CPL 60.30, CPL 710.20, CPL    710.30, Executive Law 837 and the Family Court Act statutes relating to identification.  In addition, a model policy was created (as discussed below).  The thrust of most of these statutes is to make photo identifications admissible at trial IF they were done in a way that is deemed to be less suggestive – methods described as either “blind” or “blinded.”  The statutes also ensure that even if a photo or video identification was not “blind” or “blinded”, there may be an in-court identification so long as the procedure complied with constitutional requirements.  We usually take that to mean that the procedure was not unduly suggestive, which would implicate due process issues, but I’d like to suggest that we broaden our view of what due process requires and start thinking about whether a procedure affected reliability.  And I’d encourage you to read a recent Fourth Department decision, People v. Reeves, 152 AD3d 1173 (Fourth Dept. July 2017).

Please note – I have not yet practiced under these statutes, so I cannot foresee the problems within the statutes

1.  Vocabulary

The statutes repeatedly refer to “Pictorial, photographic, electronic, filmed or video recorded reproduction.”  This phrase is used to include photos and videos that may be used during identification proceedings.  I believe it is intended to be as broad as possible so that we will not argue that certain kinds of pictorial representations are not within the statute, and therefore not admissible at trial.

Blind – According to the Division of Criminal Justice Services Model Policy (more on this below) a blind procedure is “An identification procedure where the administrator does not know the identity of the suspect.”  A “blind” procedure is one in which the person administering it (usually a member of law enforcement) does not know who the suspect is.  In other words, the administering officer does not know which of the photos is the suspect.  A blind procedure theoretically requires two officers – one to select the suspect’s photo and then place fillers in the array, and another who DOES NOT KNOW who the suspect is to display the array to the witness.

Blinded – According to the DCJS Model Policy, a blinded procedure is “an identification procedure where the administrator may know who the suspect is, but by virtue of the procedure’s administration, the administrator does not know where the suspect is in the array.”  This can be done by creating a few folders with arrays, with the suspect in different places in each folder, and then having the witness select one photo for use during the procedure. 

The goal of these procedures is to prevent the administering officer, either intentionally or unintentionally, through words or actions, from suggesting to the witness which person should be selected during an identification procedure.  Neither blind nor blinded are best practices.  “Double blind”, in which the administrator does not even know if the suspect is in the array, is a better practice.

2.  History

Through the course of the evolution of New York law on identifications, it has been traditionally held that absent some unusual circumstances, identifications based on photographs would be inadmissible at trial, both due to the possibility that a photo could be altered or distorted, and that the photo in possession of the police would imply that the defendant had a criminal record and the photo was a mug shot.  (See People v. Perkins, 15 NY3d 200 (2010).

In recent years, the Court of Appeals also concluded that because photos were not admissible at trial, CPL 710.30 did not require notice of photo arrays. 

3.  CPL 60.25 – A witness who cannot identify at trial

CPL 60.25 existed before the new identification law came into effect.  That law permitted a witness who is unable to identify the defendant at trial to testify to the witness’s viewing of the defendant during the incident or at some time related to the incident, and then at a later identification proceeding.  Another witness, usually a police officer, would then link that identification to the defendant –

“And who was the person the witness selected in position number six at the lineup?”

“The person the witness selected in that lineup proceeding was John Doe.”

 “Do you see John Doe here in court today?”

 “Yes, I do.”  “Where is he?”  “He’s sitting at the table over there (pointing to the defendant).”

Historically, prior photo arrays could not be used to establish identification by a witness who is unable to presently identify.  Under the amended statute, if the prior identification was “blind” or “blinded,” the prior procedure is now admissible even if it involved photos.

CPL 60.25(c) states that the failure of a public servant to use blind or blinded procedures will result in preclusion of the testimony of the identification procedure as evidence in chief, but shall not lead to suppression under CPL 710.20(6) which bars identification evidence obtained as a result of an “improperly made previous identification of the defendant.”  (Our usual Wade reasons – suggestiveness, due process violations, unreliability of the identification.)   What this seems to mean is that the prior ID procedure may not be admissible AS EVIDENCE IN CHIEF if it has not been blind or blinded, but if, as a result of a Wade hearing, the Court concludes there were no constitutional violations, the witness may make an in-court identification.  The weird thing here is that this statute addresses when a witness cannot make an in-court identification based on inability to presently identify, so I’m not sure about what the goal of this piece of legislation is.  Although it may be to make the procedure admissible if not used as evidence in chief.  Perhaps if the door is opened? 

One other important note about CPL 60.25 generally is that it only applies to circumstances in which the witness cannot identify due to present inability.  Other reasons – death, fear, etc. – are not sufficient to permit a prior ID procedure without present ID to come in.  See People v. Bayron, 66 NY2d 77 (1985), People v. Cwikla, 46 NY2d 434 (1979), People v. Quevas, 81 NY2d 41, People v. Patterson, 93 NY2d 80[TD1] .
If the basis for the witness’s inability to identify is uncertain, you may wish to request a hearing or voir dire of the witness during trial outside the presence of the jury. 

In our practice, it is less common for us to have witnesses who cannot identify the defendant in court, so this statute will be less frequently applied than…

4.  CPL 60.30 – A witness who can identify at trial

The amendments to CPL 60.30 are likely to have a much greater impact on our work.  In the past, CPL 60.30 permitted a witness to testify both about a previous identification procedure in which the defendant was viewed “in the flesh,” such as a lineup or showup, and which procedure was not deemed to have violated constitutional prohibitions, and to identify the defendant at trial.  However, testimony about prior identification procedures that used photographs were not generally admissible.  (For a discussion about identifications of defendants on video during the incident, see People v. Gee 99 NY2d 158 (2002). 

The amendment to this statute now permits a prior identification using photographs or other media made by a witness WHO IS ABLE TO IDENTIFY AT TRIAL to be admitted at trial as long as the procedure was blind or blinded and comports with constitutional requirements.  The language is a bit strange, since in order to say the procedure has to be blind or blinded to be admissible, the statute incorporates by reference the blind or blinded requirement of CPL 60.25, which refers to blind or blinded. 

Although the statute permits this evidence to be admissible, we may still wish to raise arguments about bolstering.  As these statutes are new, we may also want to think about whether there are any constitutional challenges to raise.  (And if so, don’t forget to put the A.G. on notice when raising a constitutional objection to the validity of a statute.)

5.  CPL 710.60

CPL 710.60 was amended to incorporate the photo and other pictorial or video identification procedures.  In addition to specifying that a court may suppress evidence of a prior identification procedure involving photos, videos, etc., based on an improper prior identification, the statute notes that a claim that the prior identification using photos, videos, etc. was not blind or blinded shall not be a basis to suppress evidence. 

So what does this mean?

Here’s my take: 

Under CPL 60.25, if a witness cannot identify at trial, and this is established on the record, if the procedure was blind or blinded and did not violate constitutional rights (suggestiveness, due process violations) the prior procedure comes in.

If the witness cannot identify at trial, and the procedure was not blind or blinded, it does not come in.  Since they can’t identify at trial, I don’t see how the 710.60 concerns come into play.

If they can’t identify at trial, it was blind or blinded, but it violated Wade/due process rights, the prior procedure does not come in. 


Under CPL 60.30 (witness is able to identify at trial)

If the procedure was blind or blinded and did not violate constitutional rights, prior ID and in-court ID permitted.

If not blind or blinded, but did not violate constitutional rights, prior does not come in but in-court ID can be made.

If blind or blinded, but violated constitutional rights, neither comes in.

6.  CPL 710.30(1)

This statute now clarifies the notice requirements of 710.30, muddied by People v. Grajales, supra.

Under the amended version of CPL 710.30(1), the prosecution must provide a 710.30 notice if a witness has engaged in a photo or video identification proceeding previously.

7.  Executive Law 827(21)

The Executive Law was amended to require the DCJS to promulgate “a standardized and detailed written protocol that is grounded in evidence-based principles for the administration of photographic arrays and live lineup identification procedures for police agencies and standardized forms for use by such agencies in the reporting and recording of such identification procedures.”  The statute describes some of the areas to be covered.  While recommended, the policies are model policies and not mandatory, which is a huge disappointment to many who were hoping for law requiring evidence based procedures (and not just gently suggesting them).  Which brings us to:

8.  Model Policy:

In June of this year DCJS released its model policies, based on the requirements of the Executive Law.  While they are not mandatory (and not even necessarily best practices), they are better than what we have seen, and should be used to argue at the hearing and trial about how the police failed to apply better and model policies to their work, and that failure increased the likelihood that the defendant was misidentified. 

The Model Policy can be found here: http://pceinc.org/wp-content/uploads/2015/06/Eyewitness-Identification-Model-Photo-Array-and-Lineup-ID-Procedures.pdf.   And I urge you to scrutinize it, especially as you prepare for hearings and trials involving these issues.  

One of the features of the Model Policy is that it requires confidence statements from a witness, though it discourages numerical assessments (like “I’m 80% sure).  If our departments start using them, it should be interesting to see what witnesses claim about their certainty of the identification.

9.  A few thoughts on practice

First, in every case we get, we may wish to include a motion that “If any witness was involved in an identification procedure required by CPL 60.25 or CPL 60.30 to be blind or blinded, and such procedure was not blind or blinded, defendant moves for an order precluding the use of any such identification by the witness at trial.  Note – this does not substitute for your Wade motion following receipt of an adequate 710.30 notice, or your motion to preclude identification in the absence of sufficient notice.

Additionally, we really have to think about how to expand the scope of our cross-examinations at Wade hearings.  For example, looking at the model protocol, you may wish to question on whether the police have taken the online course, whether they followed procedures for selection of fillers, etc. You will want to address the specifics of how fillers were selected, and whether the description given by the witness was incorporated into selection of the suspect and filler photos. (If the police have ignored the description and gone after “the usual suspects,” isn’t that suggestive?)

Dig into the Model policies and consider all the ways you might use them to expand your cross.  And take a look at People v. Reeves, supra, in considering how to craft your arguments.  For additional discussion of these issues, see Barry Kamins analysis in the New York Law Journal http://www.law.com/newyorklawjournal/almID/1202794793850/?slreturn=20170925153256.

 [TD1]How does one establish this? Voir dire witness outside presence of jury?

Tuesday, August 8, 2017

Challenging the assumption that an innocent person would not plead guilty

I recently challenged on appeal the validity of my client’s guilty plea based on my client’s questionable mental capacity and ability to understand the plea bargaining process. Ignoring the import of my client’s diminished capacity, the prosecutor on appeal (in typical fashion) argued that “one could assume” my client would not have “readily” admitted to the offense in open court if he had not committed it.

It is remarkable that this argument is still being made given the impressive number of wrongful convictions overturned throughout the country involving false confessions and guilty pleas. And I stated just that in my reply brief, while parenthetically citing statistics from the National Registry of Exonerations and the Innocence Project, before making arguments more specific to my client’s case.

The National Registry of Exonerations reported in November 2015 that 15% of the then-known exonerees pleaded guilty and suggested that the actual number of innocent persons who pleaded guilty is significantly higher (National Registry of Exonerations, Innocents Who Plead Guilty, Nov. 24, 2015, http://www.law.umich.edu/special/exoneration/Documents/NRE.Guilty.Plea.Article1.pdf). According to its website 382 of the 2,078 exonerations currently in the in the Registry (18%) pled guilty.

The Innocence Project has a page on its website, entitled “When the Innocent Plead Guilty,” that describes the cases of 31 of its exonerees who pleaded guilty to crimes they did not commit (a shocking number of which were homicides and sex offenses) and served a combined total of more than 150 years in prison before they were exonerated (Innocence Project, When the Innocent Plead Guilty, Jan. 26, 2009, https://www.innocenceproject.org/when-the-innocent-plead-guilty/).

In November 2014, United States District Court Judge Jed S. Rakoff (Southern District of New York) wrote an article for The New York Review of Books, entitled “Why Innocent People Plead Guilty” (available at http://www.nybooks.com/articles/2014/11/20/why-innocent-people-plead-guilty/), in which he recognized the shocking prevalence of false guilty pleas and advocated for a pilot program of judicial involvement in the plea bargaining process in an effort to reduce the epidemic. While I’m not sure I agree that judicial involvement would serve as a cure, Judge Rakoff’s observations about false guilty pleas are worth quoting:


[T]he prosecutor-dictated plea bargain system, by creating . . . inordinate pressures to enter into plea bargains, appears to have led a significant number of defendants to plead guilty to crimes they never actually committed. . . . Presumably they did so because, even though they were innocent, they faced the likelihood of being convicted of capital offenses and sought to avoid the death penalty, even at the price of life imprisonment. But other publicized cases, arising with disturbing frequency, suggest that this self-protective psychology operates in noncapital cases as well, and recent studies suggest that this is a widespread problem. . . .
It is not difficult to perceive why this should be so. After all, the typical person accused of a crime combines a troubled past with limited resources: he thus recognizes that, even if he is innocent, his chances of mounting an effective defense at trial may be modest at best. If his lawyer can obtain a plea bargain that will reduce his likely time in prison, he may find it “rational” to take the plea.
* * * *
While, moreover, a defendant’s decision to plead guilty to a crime he did not commit may represent a “rational,” if cynical, cost-benefit analysis of his situation, in fact there is some evidence that the pressure of the situation may cause an innocent defendant to make a less-than-rational appraisal of his chances for acquittal and thus decide to plead guilty when he not only is actually innocent but also could be proven so. Research indicates that young, unintelligent, or risk-averse defendants will often provide false confessions just because they cannot “take the heat” of an interrogation. Although research into false guilty pleas is far less developed, it may be hypothesized that similar pressures, less immediate but more prolonged, may be in effect when a defendant is told, often by his own lawyer, that there is a strong case against him, that his likelihood of acquittal is low, and that he faces a mandatory minimum of five or ten years in prison if convicted . . . —but that, if he acts swiftly, he can get a plea bargain to a lesser offense that will reduce his prison time by many years.

For whatever it’s worth (which may not be much since I have only been in practice for less than two years), I have some thoughts on the practical implications of this problem – many of which are (or should be) obvious.

To start, when a client confesses to the police, we should be open to the possibility that the client did not actually commit the confessed-to offense. While it may be more often the case that a client who initially claims innocence turns out to be guilty, we cannot foreclose the possibility that the opposite may be true. Thus, we should be diligent in asking those clients who confess to describe for us what actually happened, what they told the police, and what the circumstances were surrounding their confession – and not just rely on police reports, recorded-interrogations, and officer testimony to do that job. And we often need to do so more than once, since we all know that it takes time to earn a client’s trust – if we ever earn it at all.

Before we recommend that a client plead guilty, we need to make sure that it is truly in the client’s best interest to do so and not simply more convenient. We need to know whether we are capable of mounting an effective defense and be careful that we are not telling a client that their chances of acquittal are lower than they are. And if we know or suspect that a client has limitations, we need to do our due diligence to make sure that the client understands what a guilty plea connotes and its consequence.

Although these suggestions come across as obvious, we need to honestly ask ourselves how often we fail to take the time to actually put these things into practice.

We also have what I believe is an obligation to educate the public of the prevalence of false confessions and guilty pleas in an effort to change the public’s perception. As Judge Rakoff recognizes in his article,


Americans are notoriously prone to making moral judgments. Often this serves salutary purposes; but a by-product of this moralizing tendency is a punitiveness that I think is not likely to change in the near future. Indeed, on those occasions when Americans read that someone accused of a very serious crime has been permitted to plea bargain to a considerably reduced offense, their typical reaction is one of suspicion or outrage, and sometimes not without reason. Rarely, however, do they contemplate the possibility that the defendant may be totally innocent of any charge but is being coerced into pleading to a lesser offense because the consequences of going to trial and losing are too severe to take the risk.

One cannot assume that an innocent person would not confess, and one cannot assume that an innocent person would not plead guilty.

Defense attorneys, especially those who handle appeals and post-conviction motions, as well as civil rights attorneys who handle wrongful conviction suits, should be prepared to challenge prosecutors, opposing counsel, judges, and members of the general public who try to argue otherwise.  Members of the defense bar also should be careful not to make the same assumptions. Otherwise, in my opinion, we do a disservice to our clients.