
American justice system ignores science in the pursuit of convictions - oftenwrong
https://www.nbcnews.com/news/us-news/we-are-going-backward-how-justice-system-ignores-science-pursuit-n961256
======
kstenerud
In jury trials, prosecutors have not only a huge advantage, but also a
perverse incentive to lie and cheat. They know that the jurors are not going
to be experienced enough in criminal law to sniff out procedural bullshit or
"expert witness" gambits or bullshit science, much like a novice is unlikely
to win at poker against a professional player.

And therein lies the problem. In every trial, you have professionals (lawyers)
playing against novices (jurors), and since the prosecution automatically
gains special believability status in the eyes of jurors, they hold the upper
hand. To make matters worse, prosecutors have the automatic full cooperation
of police, whereas the defense has no such guarantees. And since prosecutors
are gauged by their wins, and high ranking prosecutors are the most likely to
be voted/appointed into coveted judge seats, there is a perverse incentive to
prosecute the innocent.

But since the system operates on the fiction that all members are equal (much
like all sides are equal in a game of poker), it's easy to brush aside the
reality that they are most certainly not equal, and that the more experienced
has such a huge advantage that it's laughable to even call it fair.

In a system with professional judges, that wouldn't fly, as the trained judge
would see through their shenanigans and rebuke them.

~~~
pmoriarty
_" In jury trials, prosecutors have not only a huge advantage, but also a
perverse incentive to lie and cheat."_

The prosecutorial advantage is even bigger in grand juries (ie. the juries
that decide whether the suspect will be charged or "indicted" with a crime),
where only the prosecution's side is heard and the standard used to indict is
much lower than the _" beyond a reasonable doubt"_ standard used in a real
trial. The running joke being that a good prosecutor could indict a ham
sandwich.

It's after indictment but before trial that the prosecution pressures the
defendant to take a plea deal (ie. plead guilty to reduced charges) to avoid
risking going to jail for a much longer time and bearing the insane expenses
of a trial.

To my memory, in the US only something like 6% of indictments actually go to
trial, where (as you point out) the prosecutors have a huge advantage. 94% of
the time inicted defendants plead guilty and never actually get a trial. In
some cases, like with Aaron Swartz, they commit suicide.

So for the overwhelming majority of cases, it's not what happens at trial that
matters (as they never get a trial), but rather what happens in the even more
skewed for prosecutorial advantage grand jury that matters -- a grand jury
where defendants and defense attorneys are not even present and where their
side is not heard.

~~~
gamblor956
Former public defender here.

>90% percent of defendants plead guilty before trial because 90%+ of
defendants are actually guilty of the crimes they've been charged with. In
most cases, the defendants accept their guilt and are simply trying to get the
best deal (i.e., least prison/jail time) as they can.

~~~
metalens
>>90% percent of defendants plead guilty before trial because 90%+ of
defendants are actually guilty of the crimes they've been charged with. In
most cases, the defendants accept their guilt and are simply trying to get the
best deal (i.e., least prison/jail time) as they can.

Except that a disproportionate percentage of poor defendants (who can't afford
expensive lawyers) plead guilty before trial because their overworked and
underpaid public defenders advise them to.

Logic is that pleading guilty before trial gets you a shorter sentence than
going to trial. The alternative is going to trial and being incorrectly found
guilty and getting a larger sentence for a crime you didn't commit (your
public defender has limited time/resources to make a great case for you).

The American Justice system is particularly unjust to the poor.

Edited for clarity

~~~
gamblor956
_Except that a disproportionate percentage of poor defendants (who can 't
afford expensive lawyers) plead guilty before trial because their overworked
and underpaid public defenders advise them to._

No, a disproportionate percentage of poor defendants plead guilty because
they're actually guilty and their underpaid public defenders have advised them
its not worth the effort to fight the charges--for the PD or the defendant.

Especially since, as you helpfully pointed out, the DA is less willing to give
shorter sentences to guilty defendants who demand a trial. In this context,
"shorter" meaning shorter than the likely sentence imposed by the judge after
trial, usually even shorter than the statutory range imposed if the defendant
is found guilty at trial. This is why defendants plead before trial--in many
jurisdictions its the only way you can get a sentence less than the range
unless you have a fantastically expensive lawyer (like the lawyer for Brock
Turner, the Stanford Student Rapist).

 _The alternative is going to trial and being incorrectly found guilty and
getting a larger sentence for a crime you didn 't commit (your public defender
has limited time/resources to make a great case for you)._

You appear to have a Law & Order understanding of how criminal defense works.
In the real world, even private attorneys spend most of a case attacking the
DA's case, not building their own case. The Defendant doesn't need to prove
anything.

~~~
JoeAltmaier
Comes to the same thing. You get all the 'advocacy' you can afford, and the
poor cannot afford any. So they give up early.

------
mchannon
One I'm running into right now is the science of IP addresses.

Unfortunately, 99% of criminal cases are where IP address "science" (if you
can call it that) typically follows the formulaic story where somebody starts
downloading certain graphical images, agents working the pipe or the other end
log the IP, the ISP identifies the IP account's subscriber (after the law
enforcement agency compensates them for their time), and then a search of the
corresponding premises is authorized. Luckily I'm not dealing with that.

But in that case, the IP address forms the Court's idea of probable cause. If
the IP address is a single family home with a single computer and no wi-fi,
seems pretty open-and-shut. If it's a Starbucks or a workplace, and that
actually results in a team of agents descending on it and searching and
seizing the occupants' computers, then I think most would agree it's an abuse
of power.

The challenge the Courts have is that middle category. What if I told you with
a straight face that I believe you did something illegal, I have an IP address
that used to be yours connected with that act, though no proof it was yours at
the time, no proof you were using that location's internet at that time or
even there to use it, and no idea how many other people were using the wifi
there?

That's good enough to convict until US courts rule otherwise.

~~~
jimmy1
> If the IP address is a single family home with a single computer and no wi-
> fi, seems pretty open-and-shut

So say you do have WiFi but you leave it wide open to the public, does that
mean you have plausible deniability in IP-address related cases?

"could have been my neighbor, could have been a guy walking down the street
using my wifi, could have been anyone"

~~~
mchannon
As things stand now, obviously not.

Law enforcement doesn't have to prove you did it before the search and
seizure, merely establish "probable cause". Was it probable it was your
computer doing the downloading?

At trial (in the unlikely event it goes to trial instead of a plea deal), then
it's supposed to be "beyond a reasonable doubt", but by then everybody (except
in the number of cases involving _Brady_ violations) sees everybody's cards.

Except the Court believes the law enforcement officials as to what those cards
say, even when it's not what they say. And that's the trouble: not in evidence
gathering but in convictions.

Network routers and modems are really bad at logging who accessed what from
what MAC address. Mandating that routers start logging would in practice
probably aid civil liberties more than harm them, simply because of the
presumptions out there.

------
oftenwrong
Field tests for Marijuana also seem to regularly be baseless.

A couple had their house raided partially because some loose leaf tea in their
rubbish bin field-tested positive as marijuana:

[https://www.washingtonpost.com/news/the-
watch/wp/2017/12/19/...](https://www.washingtonpost.com/news/the-
watch/wp/2017/12/19/jury-rules-against-family-subjected-to-swat-raid-over-
loose-leaf-tea/)

Police using unproven "drug recognition expert" training to "detect" marijuana
use via body language:

[https://www.11alive.com/article/news/investigations/the-
drug...](https://www.11alive.com/article/news/investigations/the-drug-
whisperer-drivers-arrested-while-stone-cold-sober/85-437061710)

More on faulty drug testing:

[https://www.cacj.org/documents/sf_crime_lab/studies__misc_ma...](https://www.cacj.org/documents/sf_crime_lab/studies__misc_materials/falsepositives.pdf)

~~~
wonderwonder
In Kansas now this is not even relevant. Police just have to claim to 'smell
marijuana' and they can search a home without a warrant. The 4th amendment is
being whittled down to nothing.

[https://www.countable.us/articles/17230-kansas-supreme-
court...](https://www.countable.us/articles/17230-kansas-supreme-court-rules-
smell-pot-justify-police-searching-home)

------
dhh2106
Great and infuriating article. There's also issues with eyewitnesses testimony
and lineups that have been well documented, meaning the rate of wrongful
conviction may be quite high.

"The National Registry of Exonerations has documented 553 cases since 1989 in
which someone was convicted on false or misleading forensic evidence and later
cleared. The growing list of exonerations includes a Texas man whose 1987
murder conviction, based on bite-mark evidence, was thrown out in December,
and an Illinois man declared innocent in January in the retrial of a murder
case that hinged on dubious ballistics evidence.

But the exonerations likely represent only a fraction of the cases in which
faulty forensics sent innocent people to prison, researchers say."

Is there any research estimating how many wrongly convicted people may be
incarcerated? How could that even be estimated?

~~~
darepublic
can we filter by cases with large part of the case resting on forensics? Then
foreach such case see if we can double check the forensics evidence

~~~
SllX
Not without enough people willing to enter the related forensic science labor
pools, to make a point.

Even after you’ve filtered for all the cases you could want, you’re probably
going to end up with a large number. Rechecking all of the evidence in each
case to either reaffirm or exonerate the people in prison because of that
evidence is a labor intensive task.

------
isolli
To be fair, the American justice system is not the only one:

> Clark's first son died suddenly in December 1996 within a few weeks of his
> birth, and in January 1998 her second died in a similar manner. A month
> later, she was arrested and tried for both of the deaths. The prosecution
> case relied on significantly flawed statistical evidence presented by
> paediatrician Professor Sir Roy Meadow, who testified that the chance of two
> children from an affluent family suffering sudden infant death syndrome was
> 1 in 73 million. He had arrived at this figure erroneously by squaring 1 in
> 8500, as being the likelihood of a cot death in similar circumstances. The
> Royal Statistical Society later issued a statement arguing that there was
> "no statistical basis" for Meadow's claim, and expressing its concern at the
> "misuse of statistics in the courts".

[https://en.wikipedia.org/wiki/Sally_Clark](https://en.wikipedia.org/wiki/Sally_Clark)

~~~
mikestew
_who testified that the chance of two children from an affluent family
suffering sudden infant death syndrome was 1 in 73 million._

Even if he's wrong, using just the wrong stats says, well, in a country of
>300 million (such as the U. S.) that's going to happen once in a while. Even
a smaller country like the U. K., my response would be, "so it _could_ happen,
and it wouldn’t be all that outlandish for a case to crop over the course of,
say, decades?"

OTOH, I don't care if the odds are 1 in 73 gazillionbillion, it could happen
and the prosecution still needs to prove otherwise. We're not playing craps
here.

~~~
ip26
Not to mention there's usually hidden patterns we just haven't uncovered. Some
gene or household chemical or simple behavior that skews the odds. Thus at a
population level the aggregate risk might be 1 in 73 million, but for _this_
individual it's 1 in a billion and for _that_ one it's 1 in 10 thousand. We
just don't know it, because we don't know all the risk factors.

It's like insurance. You might be a really safe cautious driver, and your
friend a nutcase. But your insurance doesn't really know who is a nutjob
predisposed to accidents ahead of time.

~~~
rhino369
Exactly, SIDS isn't purely random. There are variables nobody knew about (and
many we still don't know about). Babies were suffocating on blankets, mattress
padding, dolls, etc. There was probably something dangerous about the baby's
crib that was undetectable.

------
ksdale
Over the holidays with the in-laws, we watched one of those Cops type shows
and I was a little incredulous about the use of the drug sniffing dog.

It occurred to me that they could just have the dogs alert basically whenever
they wanted them to.

In practice, they seemed to bring the dogs out when the driver of a vehicle
was very obviously high, so it seems like they may have had probable cause
anyway, but it still seemed alarming that a dog that can so easily be
manipulated is an appropriate way to get into someone’s car.

~~~
pessimizer
> In practice, they seemed to bring the dogs out when the driver of a vehicle
> was very obviously high

In practice, they bring out the dog whenever they don't get consent to search.

This is how street policing works:

1) Have a feeling about a car.

2) Tailgate that car.

3a) If there is an obvious visual justification for a stop, like a broken
taillight, unlit license plate, temporary tags in the window, or tinted
windows, attempt to pull that car over.

3b) If there isn't an obvious visual justification for a stop, follow very
closely for an extended period time until a minor traffic law is broken, or
you get a call over the radio to go somewhere else (in which case, end.) When
someone "rolls past a stop" or forgets to use their turn signal when switching
lanes, speeds by a few mph, or stops short causing you to brake (because you
are half a car-length behind them), pull them over.

3c) If they do nothing, pull them over once you get bored with following them
and say they were driving erratically.

4) Mention to the driver your pretense for pulling them over while looking
them over. If they look poor, give you attitude, or you just don't like them,
ask them for consent to search.

5a) If they give you consent, search.

5b) If they don't give you consent, tell them that you have a reasonable
suspicion because you smell something, and that if they don't give you
consent, they will have to wait at the side of the road for 10-30 minutes for
the dog to come. To avoid that wait, they can just give you consent now.

5b1) If they give you consent, search.

5b2) If they don't, wait for the dog (unless you get bored or get a call),
when the dog comes, tell them the dog alerted. Search.

6a) If you find something, act accordingly.

6b) If you don't find anything, say you're going to let them off with a
warning for the excuse you used to pull them over, get back into car and drive
until you have a feeling about another car.

The pretty sad thing is that this process is pretty obvious on the cinema
verité cop shows, it's such a standard practice that they don't mind doing it
when you're looking. The shameful thing about it is that these shows edit out
the 99% of the time that the person has nothing, and that the dog "alerts" and
they don't find anything. A pretty cool thing with the new "Live PD" show is
that you get to see the dog alerting every single time, and listen to the cop
accusations that "you must have smoked earlier, or you must be letting someone
drive your car, or else my dog that has never not alerted wouldn't have
alerted."

~~~
pmoriarty
They could also just plant something in the car when they do search.

~~~
zxcvbn4038
Here is one incident where police accidentally ran into a parked car with a
man in the passenger seat. They then arrested him for hitting and damaging
their car. He was later exonerated by video from a security camera.

I’ve heard stories like this going back to the ‘60s. I suspect there are an
order more incidents like this that never make a major news outlet, and
probably an order beyond that which end up being citizens word against the
cop’s because there is no video to back it up.

[https://nypost.com/2014/02/21/cops-hit-my-car-then-
arrested-...](https://nypost.com/2014/02/21/cops-hit-my-car-then-arrested-me-
to-cover-it-up-suit/)

------
wonderwonder
In America for the most part if the police and / or prosecution want you to be
convicted you are probably going to be. For police there are almost no
consequences for lying or falsifying data except a law suit that they are not
responsible for paying. Police have almost carte-blanche to do as they will
including resorting to intimidation. The only good defense against being
convicted in a court of law is large amounts of disposable wealth.

------
driverdan
I'm surprised the article gave this a pass:

> Investigators also found a witness who, after being hypnotized, a technique
> sometimes used by law enforcement to enhance memories, said he remembered
> seeing Johnston force the couple into a car.

Hypnosis is not a valid technique to "enhance memories." It is, however, a way
to change memories and create false memories.

------
DataWorker
If you select the right jury it doesn’t matter whether you have solid evidence
anyway. For some cases you might want to remove black jurors, or maybe get rid
of any women. If you get the right mix you get a conviction regardless of the
facts of the case. Outcomes are determined by looks as much, perhaps more than
actual evidence. And we know that and proceed just the same.

~~~
mnw21cam
It boggles the mind that members of the jury can be selected by the
prosecution or defence in this way (or at all, really).

I understand the need to disqualify people if they have severe learning
difficulties, have special knowledge that would disrupt the process, or if
they are incapable of finding one of the possible verdicts, but otherwise the
selection should be a random cross-section of society.

~~~
somebodythere
Why should a juror be excluded for possessing special knowledge? Wouldn't that
be an advantage when it comes to finding facts?

~~~
FireBeyond
Because neither side really has an interest in you as a juror determining
things yourself, they want jurors who can be accepting of their narrative, be
they prosecution or defense.

------
alexhutcheson
I'm glad this is getting more attention.

If you're interested in learning more, the book The Cadaver King and the
Country Dentist[1] is a great in-depth dive into a couple specific cases where
testimony from "experts" resulted in the conviction of innocent people. It
also does a good job explaining the incentives and institutions that make it
hard to stop this.

[1] [https://www.goodreads.com/book/show/33296669-the-cadaver-
kin...](https://www.goodreads.com/book/show/33296669-the-cadaver-king-and-the-
country-dentist)

------
hnuser1234
It is not a "justice" system, it is a legal system.

------
cheez
What I always say to people caught up in the justice system is cop a no-record
plea deal, and if that fails, use dirty tricks to get the people prosecuting
you.

Put a private detective on the prosecutor and their helpers, get some dirt on
them. Catch a police officer or an agent of the court threatening you on a
recording. Etc, etc.

Your lawyer won't like it, but they use the same tricks on you. Fuck 'em.
Threaten to release the dirt (through your lawyer, in a legally vague way) and
watch the charges go away.

