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A man who was jailed on the fantasy evidence of a single hair (theguardian.com)
249 points by ghosh on June 24, 2015 | hide | past | web | favorite | 180 comments

Thankfully not as severe as this, but a few years police came to my door and arrested me on suspicion of robbery. I was told they had a forensic evidence that I was involved in it.

As part of UK Visa procedures, I had to provide my biometric details. They had found my finger prints on a phone book and concluded that I must have done the robbery. They had no other evidence, they hadn't done any background checks or found a motive. The phone book was one of the ones my mom was distributing in her small van. I had helped her loading them up the van. I explained this, they checked with the distribution company and I was freed. But the thought that I had been incredibly lucky to have an explanation never left me. Just imagine a situation like this, maybe you go into a shop, pick up an item and put it back. Someone somewhere gets killed and your forensic information is left on an item in the murder scene.

What happened to this guy is terrifying. And I'm sure there are thousands of innocent people in jails because since the introduction of forensics, law enforcements and the courts have become too lazy to analyse the situation. "Evidence is there, must be guilty" mentality.

It sounds like you would have been saved a lot of stress, indignation and hassle if they had simply asked you, and spent five minutes checking up on your answer, before arresting you.

Considering the number of fingers that may have touched a telephone book during its manufacture and distribution (surely the cops have phone books and knew they weren't sent in the post, or if they had found a post worker's fingerprints on a piece of mail they wouldn't have arrested the postal worker) it seems to me that they may have been reckless in their conclusion.

This happens because the police aren't intelligent people.

In a Sherlock Holmes story, the protagonist uses forensic evidence but he thinks about what the evidence means.

The police, on the other hand, want a magic oracle device that spits out names and current addresses, and they treat forensics like it was such.

In the United States, having a valid explanation for why your fingerprints were on some object wouldn't necessarily get you freed, it wouldn't necessarily prevent prosecution. Some asshole DAs here would take that to trial (or extort you into a plea bargain, at least).

>The police, on the other hand, want...

someone to get arrested so it looks like they are doing a good job so the chief gets off their back, the chief wants this because re-election is coming soon and doesn't want to look weak on crime. Neither one of them can go pick up some random black guy for the crime any longer without too much media attention so 'forensic' evidence is what they try to use today.

I'm sure many police are not like this, but they also want the power trip. I was once pulled over by a cop who was driving incredibly recklessly on icy roads to get behind me fast (when I saw him swerving in my mirror I actually thought he must be on his way to an active shooter situation or something). He yelled at me to give him my license, and then ordered me to get out of the car and sit on the curb because he thought it was a fake. When it turned out to be authentic, he politely informed me that one of the lights illuminating my license plate were out and that my registration was expired. He wrote me a ticket. My registration was not expired, and I fixed the light the next day. The judge was laughing his head off at the ticket and called people in from the hallway to see how silly it was. But my complaint about the officer was just "noted".

I was pulled over by a cop because I essentially "cut him off" at an intersection, pulling from my complete stop at a stop sign across the intersection while he, further behind but with no stop sign, was turning into the same road: he therefore couldn't keep so much of his momentum but once he got into the road he needed to slow way down to match my speed.

Fortunately, I had a tail light out -- not a brake light, just the ones that idle on when the car is running. When he asked "do you know why I pulled you over?" I said "Because I have this tail light out: but the brake lights are fine, I have this appointment to fix them tomorrow, and here is this warning that this other officer gave me about the problem, which clearly says that it has to be fixed by the end of the week."

He said out-right "no, that's not why I pulled you over, you ran that stop sign," and I said, "no, I came to a complete stop, I always do, it's one of those disciplines I have that really annoys my girlfriend..." and such. Probably I shouldn't have even tried to argue it? But I did.

In the end, he came back with a ticket for "driving a defective vehicle" -- because the tail light was out, and despite the fact that he should have ideally deferred to the earlier warning. I asked him about it and he said, "you didn't fix it fast enough!" brusquely. Probably he wanted to lean on my immediate statement of "this is broken but I am fixing it tomorrow" in any trial, like, "he immediately confessed to the crime."

This turn of events was quite fortunate as when the county prosecutor saw both pieces of paper side-by-side (the warning, "fix by the 9th", and the ticket issued on the 7th, or whatever), she agreed to drop the case before it went to trial. (I had also been told by a police clerk that the judge was pretty lenient about traffic violations, so that may have also been in her mind.)

"I was pulled over by a cop because I essentially "cut him off" at an intersection, pulling from my complete stop at a stop sign across the intersection while he, further behind but with no stop sign, was turning into the same road: he therefore couldn't keep so much of his momentum but once he got into the road he needed to slow way down to match my speed."

Apropos of anything else - you DID cut him off, and you did fail to yield (Stop signs are also Yields). His argument about you running the stop sign is invalid, sure, if you were at a complete stop, but if you're forcing someone who did not have to yield to, by your own words, 'slow way down' to match you pulling out in front of them, then you were in the wrong.

I did cut him off. That's not a crime, but it was definitely a dick move. It was 2 AM and had it not been so late I'd probably have been nicer and just waited. (He might have been hoping that he'd caught a drunk driver?)

I don't think I 'failed to yield' to him because I exited the intersection before he entered it: he only really had to slow down once he got into the road I was in. But had he given me a ticket for that, I might have just taken responsibility and paid the fine. I mean, I think I could plausibly argue the case in court because I "made it" well ahead of him. But then again, he may have started slowing down much sooner, and it could be a thorny argument.

What interested me most about it at the time was: it was a 3-way T-shaped intersection formed by taking a 4-way intersection and blocking off the North end with construction work. So the North-South road had no signs, but the general rule for such intersections (and I think it's explicitly written down in most states, but I'm not sure) would be that the South traffic has to yield to East/West traffic: in other words, in combination with the East/West stop signs, I think the law-books would imply that the road should have implicitly become an all-way stop.

Probably he wanted to lean on my immediate statement of "this is broken but I am fixing it tomorrow" in any trial, like, "he immediately confessed to the crime."

That's precisely why he asked the question in the first place. Never admit to anything.

A few years ago, I got a ticket for driving with an expired inspection sticker. I knew it was expired and it was my fault so I wasn't going to try to argue my way out of it but when the officer asked if I knew why he pulled me over, I said "I have a pretty good idea, officer but I'm not going to say it out loud."

Hmm, I wouldn't try that again.

  Prosecutor: In Officer Wiggum's evidence he stated that you said you had a
  "pretty good idea" why he pulled you over.  Is that correct?
  You: I guess.
  Prosecutor: And what was that idea?

I could respond to that with "I'm going to assert my 5th amendment right and not answer that question" or "That was several months ago, I don't recall exactly what I thought" or "Because it was near the end of the month and I believe that officers have quotas to meet" or "Because I'm black".

All of that is moot. Where I live, there's no prosecutor involved for traffic tickets.

That idea, was that I am a wax tadpole. Was that also your idea?

Every law enforcement officer I've talked with at length has been an intelligent person.

I think we all want tools that help us do our jobs quickly and more reliably. Forensic science is, in aggregate, a tool for discovering what's true. Improvements in forensic science are, on balance, a net positive.

In the United States, nothing prevents prosecution. The state can bring whatever charges it wants. The bulwarks of our freedom are in the courts, the ballot box, and in the enumerated Bill of Rights.

It's the jury of our peers and a speedy trial that check the ability of prosecutors to do us individual harm. As a society, it's our power at the ballot box that determines who we admit into the job of prosecution.

The intelligence of individual officers is not the issue even though smart candidates are actively discriminated against in some locations (see: http://abcnews.go.com/US/court-oks-barring-high-iqs-cops/sto...). Prosecutors control the entire process and have largely negated trial by jury through the use of multiple charges and plea bargains (see: http://criminal.findlaw.com/criminal-procedure/plea-bargain-...). Many prosecutors are not directly elected, so the ballot box does not provide a direct path to a solution. Furthermore, I doubt many voters vote for candidates based on who they will appoint as a prosecutor.

> I think we all want tools that help us do our jobs quickly and more reliably.

I can't help but feel there's something vital missing from police, DA, etc training. I'm reminded very distinctly of my ethics class (which was required for graduation), where we were told the horror story of the THERAC-25. Even now, when I work on software for the military, I am very conscious of what my decisions may cost. Why aren't police, judges, district attorneys and forensic scientists required to take classes that tell them of stories like this one? I feel that juries aren't enough, especially when they are surrounded by those with much more experience and comfort in the courtroom.

"Every law enforcement officer I've talked with at length has been an intelligent person."

This could be selection bias at work. Perhaps you terminate conversations with less intelligent officers earlier, without realising the reason you do so. So, these less intelligent ones are forgotten, or removed from your sample because the conversation was not long enough to find strong evidence about intelligence.

> Every law enforcement officer I've talked with at length has been an intelligent person.

No. He's just poor at judging intelligence, like everyone else.

If they are polite and don't raise their voice and there are no obvious deficiencies in their vocabulary or pronunciation, and they seem to be minimally informed on current events and trends, you couldn't tell an idiot from a genius. You have no ability to see their thought processes, and you've never really bothered to try to infer them.

Studies even suggest you don't know what's going on in your own brain either. This despite the fact that you are actually privy to at least some of your own thought process.

> Studies even suggest

[citation needed]

Eric Schwitzgebel specializes in papers about studies about this: http://www.faculty.ucr.edu/~eschwitz/

The citations will probably be helpful for you to find the studies and similar ones.

My favorites:

Why did we think we dreamed in black and white?


How well do we know our own conscious experience? The case of human echolocation.


edit: here's an interview - http://www.3ammagazine.com/3am/the-splintered-skeptic/

Tor Nørretranders (1998). The User Illusion: Cutting Consciousness Down to Size. Viking. ISBN 0-670-87579-1.

Would a DA take you to trial based on a single fingerprint on a phonebook? Even in the article at issue, an example of justice system at its worst, the prosecution was based on an eye-witness identification in addition to the tenuous forensic evidence.

I read an article a year or so ago about a prosecutor who, once DNA evidence revealed that the defendant (convicted prior) was innocent started theorizing that he was one of two rapist, but wore a condom.

So yeh. There are no limits and no meaningful rules as to what they can and will do. Certainly many feel no moral or ethical constraints on their actions.

And what actually ended up happening in that situation? Did the DA take the defendant to trial under that theory?

I think he's referring to the case of Roy Criner. What was ridiculous is that I remember watching a documentary that focused in part about this case and they interviewed the district attorney who was denying an appeal of the case after the DNA analysis of the semen confirmed that it didn't belong to Roy Criner. The DA was adamant that he was obviously guilty because he was given a fair trial and that the DNA evidence just meant that the victim also had sex with someone else recently before she was raped and murdered by Criner.

http://www.law.northwestern.edu/legalclinic/wrongfulconvicti... http://www.pbs.org/wgbh/pages/frontline/shows/case/etc/updat...

I was surprised by their conclusion. The only item with finger prints on it was the phone book. So I asked them, would a burglar go about stealing things, then just as he's about to leave the home, he takes off his gloves and checks out a phonebook? And then puts the gloves back on to open the door to leave?

Isn't that sort of like poking a finger in the lion's eye without being able to run away? You're absolutely right, but while that's logical, it's also the sort of thing that a detective already fixated on you might think of as gloating. Insert new theory of the crime: you weren't helping your mother out of the goodness of your heart, but so you could scope out potential victims. And maybe you did touch the phone book during the crime for the adrenaline rush, content in the belief that it's the last place the police would think to dust for prints. All theories made less crazy because the detective thinks you were a smug SOB.

You mentioned that you felt lucky; sad to say, I think you're probably right. What a nightmare of an experience.

Indeed. "Ah ha! How could you know the burglar was wearing gloves if you weren't at the scene of the crime?" No winning there.

Never talk to police without a lawyer is good advice, but that advice literally translates to "Never talk to police without paying someone $300 per hour to do it." Meanwhile, police, at no additional cost to themselves, can essentially compel you to talk to them any time they want. So it's pretty easy to push people around with that dynamic, yet most people I talk to seem to bury their head in the sand on the issue.

I'm reminded of:

George Aaronow: When I talk to the police I get nervous.

Ricky Roma: Yes. You know who doesn't?

George Aaronow: Who?

Ricky Roma: Thieves.

It's not that much. That lawyer then would spend those money staying at one of your hotels or such. What goes around comes around.

After I had my home broken into the guy taking fingerprints explained to me that fingerprints don't really work like that. You're lucky to pull one single print out of an entire house, regardless of how careful a burglar was.

So I suspect that finding one good print and extrapolating a suspect from it is probably pretty common. Flawed obviously, but common.

>> Considering the number of fingers that may have touched a telephone book during its manufacture and distribution (surely the cops have phone books and knew they weren't sent in the post, or if they had found a post worker's fingerprints on a piece of mail they wouldn't have arrested the postal worker) it seems to me that they may have been reckless in their conclusion.

That's why such evidence is supposed to be supportive of a larger case. Of course there will be a fingerprint on almost any given item. If you have a complete biometric database of every person in the country you will be able to match it, but that doesn't mean anything at all. If the person matched happens to be local it still doesn't mean anything by itself. In this case there was a plausible innocent explanation of how it got there, but in most cases people won't know how they spread their prints or DNA.

At which point he could have disposed of evidence, refused to be interviewed, etc etc.

This is exactly how the legal system in the UK works - you arrest people at a relatively low burden of proof, and that gives you the power to detain them for a few hours while you question them, search for evidence, etc. You can't do any of that if you go over and "ask"

I'm glad things ended well for you, but please realize that you were freed thanks to luck and not because you were actually innocent.

Don't ever talk to police. DON'T EVER TALK TO POLICE.

Call a lawyer and allow him to explain the mistake. There's just as much chance that the police could have used your explanation against you if they thought you were lying and you would be in jail right now, wrongfully convicted because you misremembered a small detail in your story.


"Please don't use uppercase for emphasis. If you want to emphasize a word or phrase, put asterisks around it and it will get italicized."


Thanks! I'm guilty as charged. Will reform.

I think that was a justified breaking of the rules.

Commenting with emphasis in all caps is the textual equivalent of grabbing someone by the collar and screaming in their face.

Everyone who does so feels it's justified, but the effect is always obnoxious and it never conveys more information or meaning, only an insistence that the commenter is especially important and needs to be paid attention to.

Very common way people try and "win" on the Internet is by arguing a point not made by the parent. It wasn't all in upper case; your comment is invalid.

It's been considered rude since the days of Usenet and probably before, and whether or not the comment was entirely in all caps is irrelevant.

Hi dang, this is unrelated (feel free to remove this reply) but it seems that my post at https://news.ycombinator.com/item?id=9774037 has disapeared? Could you look into it?

Comments by new accounts are autokilled if they trip certain filters that we have in place because of past abuse by spammers and trolls. I've unkilled your comment and marked your account legit so it won't happen again.

Soon, everyone will be able to contribute to unkilling good comments, so fixing these will no longer block on moderator attention. In the future, though, everyone: please send issues like this to hn@ycombinator.com. It's too random whether we'll see it on HN itself! Not to mention off topic.

Honest question: is everyone supposed to have a lawyer on standby? Who exactly am I supposed to call if I need one in this kind of emergency situation? Do I just look in a phone book for "lawyers"?

That, or calling your local bar association's referral line. Some cities and courts have low cost legal assistance either through government agencies or via nonprofits.

Better yet, spend 30 minutes on that exercise now, rather than when you're stuck in the situation for real.

How can you say this, and not include a link to the video about it: https://www.youtube.com/watch?v=6wXkI4t7nuc

This video explains perfectly why even if you are innocent, you should not talk to the police.

Might want to edit your post.

I think you may be thinking of the US? In the UK it's pretty rare to prosecute the innocent. If anything things are a bit lenient with a quite a few criminals getting off free.

> In the UK it's pretty rare to prosecute the innocent.


When i did jury duty, probably about a third of the charges i heard were pretty obviously groundless.

As Thomas Jefferson once wrote, "Better a hundred guilty men go free, than one innocent man is prosecuted without due process of law." Oh, wait....

I don't think human nature changes drastically between politically defined boundaries. Besides, a simple google search shows roughly the same proportion of innocents convicted per trial.

Bear in mind that those statistics are enormously skewed by plea bargaining, for both good and bad reasons. Good plea bargaining is where the evidence is extremely strong and the defendant has little criminal history, so admitting guilt and serving a minimal sentence is in everyone's interest. The bad kind is where prosecutors have a weak case but bring so many charges that defendant is facing a horrendously long time in prison, and pleads guilty to a crime that wasn't committed rather than take the risk of extended incarceration.

Human nature's probably much the same but the systems and their incentives seem pretty different.

But that is how arresting in England and Wales is supposed to work. The standard of suspicion to arrest someone is pretty low because it affords the police time to question a suspect, obtain DNA and fingerprint samples, search your house etc.

The problem we have is when the investigating officer gets focused on a suspect thanks to forensic evidence to the exclusion of other suspects. The CSI effect is real and strong, in reality in many cases there is little to no useful forensic evidence at all.

How long can they hold you while fishing for evidence?

In England the justification has to be approved by a Custody Sgt initially that gives up to 24 hours. A more senior officer has to review the continued detention from the 6 hour mark up to 24. A Superintendent or above can authorise up to 36 hours. Beyond that a Magistrate can authorise up to 96 hours in 36 hour blocks. During this time the individual has access to legal advice, where the reasons for continued detention have to be provided and the evidence thus far collected explained (again unless a very senior signs off on why not).

Unless you're been arrested for a very serious crime, in which case you're going to be defended for free by a very experienced QC who will tear apart dodgy process, you are likely to be arrested for a handful of hours. The exceptions would be being held overnight, if you're drunk/high and thus incapable of being interviewed etc.

Things are slightly different in Scotland where you get detained not arrested, but the principles are broadly the same. UK policing as a whole has been through periods of dodgy processes and huge reforms in the wake of them. There are likely to be very few criminal justice systems in the world I'd rather interact with than the UK one, especially if I were accused of a serious crime.

Edit to add - plus the premise of "fishing" implies there is no existing evidence. The initial justifications for the arrest have to be supplied at the start, and "it might have been him" won't pass muster.

> plus the premise of "fishing" implies there is no existing evidence.

I'm not sure where you get that from. I would assume you fish where you expect to find something, and my interpretation of the many places "fishing" is used (or even "phishing" to a lesser degree), is that it's done where you expect some payoff. Maybe you're thinking of the phrase "he's just fishing", which while often used by people to describe someone searching for something, often fruitlessly, generally the person searching is doing it with the expectation they will find something.

In a legal context there is the concept of a "fishing expedition" which is more of a looking for evidence when there isn't sufficient underlying evidence to justify the intrusive methods being asked for.

Ah, you meant "existing evidence" as in "currently existing evidence", while I interpreted it as "there exists evidence".

They kept me for about 6 hours. Mainly because I phoned up a lawyer and told them I wouldn't be speaking to them unless he arrived. Took the lawyer a few hours to get there.

Years, according to the New York City Department of Corrections.

It's not really fishing. They had forensic evidence for a specific crime, used it to find him (the suspect), conducted their investigation, cleared him of that crime, and let him go.

Fishing is where you pick someone first, then go looking for evidence of any crime.

It's still fishing if the forensic evidence does not justify the investigation. For example, a thumb print on a telephone book, but not on a doorknob or anywhere else that might suggest there's a reason to think the thumb print was any less than casual/innocent.

24 hours. Can apply for up to 96 hours for a serious crime. Or 14 days under the Terrorism Act

Did they actually tell you they had concluded you conducted the robbery? Or did they simply treat you as a suspect or person of interest and wanted to discuss it with you?

That's two different things.

Seems the system worked in your case. You had a plausible reason for the existence of your fingerprint at the scene of the crime. I would imagine they also ran your background information without bothering to inform you and regular police officers don't care about motive. Detectives do when investigating a case but street cops showing up at your door (assuming that's what happened) probably don't. You apparently didn't even have to go to court to explain all this and be set free.

Curious, do you know if they caught who actually committed the robbery?

They were suited up detectives. They arrested me on suspicion of robbery. One of them was about to handcuff me but I kindly asked that he shouldn't and he accepted. They then transported me to the police station while my neighbours watched. Standard police stuff then on...

I don't know your local police procedures, but did they "book" you or just take you in for questioning? I apologize for the questioning but I'm interested in your treatment in all this. I find it really interesting that they were willing to not cuff you as they took you away.

They booked me and detained me in a cell for a few hours. They gave a cup of tea though.

I'm assuming you now have an arrest record because of this? If you do, then that's really screwed up.

Yes indeed, an enhanced CRB check will reveal arrests...

Is there no procedure to get it expunged?

How did they have your fingerprints to cross reference in the first place?

"As part of UK Visa procedures, I had to provide my biometric details."

Lsmod answers your question, but on top of that the English police force has an extensive fingerprint and DNA database. People who are arressted will have their fingerprints and DNA taken and that's held on file even if the case does not go to court (or goes to court and the defendant is found not guilty).

The National Academy of Sciences report mentioned in the article is pretty damning about the whole field of "forensic science." https://www.ncjrs.gov/pdffiles1/nij/grants/228091.pdf.

Pretty much only DNA analysis rises above shamanism,[1] and juries and judges have incorrect perceptions about the accuracy of those tests. While the often-quoted false random match probability is astronomically low, that error rate is dominated by lab error, which can rise to 1-2%.

As an aside, the Innocence Project has a better description of the details of what happened: http://www.innocenceproject.org/cases-false-imprisonment/kir...

[1] See also: http://lst.law.asu.edu/FS09/pdfs/Koehler4_3.pdf.

The biggest scandals are fingerprint analysis and eyewitness testimony. The New Yorker had a big article on fingerprint analysis years ago and little has improved.

In essence, FBI and other "experts" have frequently attested to partial matches being reliable when they're pretty much subjective. Similarly, the FBI would claim matches based on far fewer points than other countries deem acceptable.


Meanwhile, the unreliability of eyewitness testimony is legion, and it falsely convicts more people than anything else.


Forensic Science is basically a fiction, one which unfortunately has great power to ruin the lives of the people it touches.

The glorification and exaggeration of the CSI television franchise doesn't help the matter either.

Anything that Sir Arthur Conan Doyle glorified (Sherlock) is guaranteed to be soft-headed thinking—the man was infamous for it. Houdini had a long-standing "feud" with his good friend Doyle, because Doyle would popularize all of these crank theories & practices.

That report's really long. Is there any suggestion that, besides using validated techniques, the forensic investigators themselves be cross-validated -- where they don't know if they're getting cases from the "training set" or the "test set"? (And neither do the people they're directly in contact with.)

If it's justified for machine learning for ad systems, I fancy that sort of check is justified for justice, too.

A lot of stories like this are coming out, and it really leads me to wonder: Why do the FBI, the courts, and prosecutors have such strong incentives to convict someone?

This story elucidates a lot of problems: Poor standards on the part of the FBI for determining what kind of test produces accurate results, poor scientific literacy and critical thinking skills on the part of the jury, a belief in forensic technology that treats it as basically voodoo magic.

But what strikes me as most problematic is that it seems like people in this story, prosecutors, the investigator, etc., simply need to convict someone more than they need to find the truth, and face no consequences for getting it wrong, even though it ruins lives in a really serious way.

Whether it's a systemic career incentive or simply confirmation bias for the first suspect they get combined a desire to see "justice served", something about the way crimes are prosecuted is horribly broken, and bad science being used to justify locking people up is just a symptom.

Because the number of convictions is a simple metric and superiors love simple metrics to evaluate their inferiors on.

It is much simpler than admitting that performance in a job is a multi-faceted thing and cannot be dumbed down to a single number...

I have never been on a list for consideration to sit in a jury, but my impression of the process is not very high: I am led to believe that successful, intelligent people more likely to be excused by virtue of having something to do (my family/business depends on me being productive and not in court) but also that anyone with relevant experience related to the matters at issue will be excused on the basis that they are not 'impartial.' With the recent popularity of stories about false convictions and bad evidence, I wonder how it would be different if we could make sure that a jury included a scientist, medical doctor or lab technician in cases where someone from those professions was to be asked for his conclusions in court. I would be surprised if my view that winning a jury trial is all about showmanship is in the minority.

Both of your impressions are generally wrong. Having something important to do with very few narrow exceptions justified, at least in California, a deferral of service to a specified future date, not an excuse; relevant experience usually doesn't justify a for-cause challenge, but may be the basis for a peremptory challenge. Though, even there, I think it's a lot less so than popular, entertainment media driven, perceptions would suggest.

Your view may or may not be in the minority, but even if it isn't that doesn't make it correct, just popular.

I wish he would see your response, because you are 100% correct (at least in California.) I've been called for jury duty in two different counties and every time we get into a courtroom the people who have flimsy "sob" stories are usually told to buck up and aren't excused.

You have the power of jury nullification. That alone is a good reason to attend if given the opportunity.


Fortunately, I am paid a salary. If I get jury duty, I still get paid. I wouldn't try to avoid it for financial reasons.

The state has the power to take someone's freedom, their assets and their life. The only mitigation of this is the jury. Never cede that power to anyone for any reason.

Juror nullification not permitted in many states. In California, you will be found in contempt of court for doing so, or at best be removed from the jury for misconduct. Also, essentially zero federal judges will permit any open discussion of law nullification.

While I see how discussion can be prevented, but how actually juror can be stopped from nullifying the law? From my understanding this is catch-22 - you should follow law but juror can not be prosecuted for not following it.

I don't know if this is actually what happens, but I think in theory it could work like this:

1) They ask you during selection, while under oath, questions which amount do "are you aware of jury nullification, and/or, are you willing to apply the law"

2) You lie, and answer those questions with the answers they want, and get selected.

3) You refuse to convict, despite overwhelming evidence, because you're into the idea of nullification.

4) They somehow prove that you lied during step 2, while under oath.

How that 4th one works, I don't know. Does anybody have any examples of it happening?

From my understanding, judges/prosecutors are trying to make no mention whatsoever about nullification. Probably because then juror might actually consider it.

But I am not citizen and never been juror or witnessed one :) just read some wiki pages.

My understanding is that they absolutely will not mention it by name, or even elude to it, but will instead ask questions which would cover it.

For instance something like, "Are you willing to carry out the law as it is written?" or "Are you willing to decide this case based on the facts presented to you." or something else to that effect. If you know of and believe in jury nullification, the honest answer to those questions is "No." That might not be exactly what they ask, but I think it's something like that at least.

I can retroactively justify an answer of "yes" to those questions. Also presumably I wouldn't explicitly state I was using jury nullification, as I am only required to return a verdict.

>Are you willing to carry out the law as it is written?

Yes. As written, I can deliver whatever verdict I want and the law says I cannot be prosecuted for it.

>Are you willing to decide this case based on the facts presented to you

Yes. With the facts given to me, I choose not to convict this person.

I understand the pedantic nerd impulse to explain everything to everyone and prove who's right (I've had to master that urge myself). This is a case where you should keep these thoughts to yourself.

If you believe the law or case to be unjust then convince your fellow jurors by poking holes in the case, or if need be just vote to acquit and refuse to explain why.

Which will result in a mistrial, then a new trial, then a new jury who doesn't have a lying jerk amongst them. You will have accomplished nothing but being a lying jerk. Before being put on a jury, you would have sworn an oath to decide the case based on the evidence provided during trial. If you decide that you don't want to do that and lie to get on the jury anyway, you've wasted everybody's time because you felt like being a jerk. Way to go, hero.

Surely it only results in a mistrial if you don't get the rest of the jury to go along with you?

Or are there cases where the whole jury comes back with "not guilty", and a mistrial is declared because they didn't say "guilty"?

> "If you decide that you don't want to do that and lie to get on the jury anyway, you've wasted everybody's time because you felt like being a jerk. Way to go, hero."

Arguably wasting everybody's time is a form of civil protest. If every drug charge went through several mistrials before they managed to obtain a conviction, then DA's might be more hesitant to bring less egregious cases to trial.

Do you think that the act of nullification in general makes you a jerk? Or only when used in certain circumstances? Were Northerners who nullified for escaped slaves being jerks?

Your civil protest could cost other people thousands of dollars in legal and other costs, result in other people spending more time incarcerated, and the like, without their consent.

The consequence for you is a few days spent feeling like a hero. The consequences for others can be much greater.

Maybe the rights of the accused are more important than efficiency of punishing the innocent.

Okay, since you've only responded with a pathetic ethical objection to a very narrow part of my post, I take it that you concede that his post was full of absolute horseshit.

First - breaking an oath is no big deal.

Second - you don't have to lie. If you put for yourself the beyond reasonable doubt bar in nonviolent drug crime to be 1/10^14 who is there to disprove you.

With 7000000000 people on earth and creative misinterpretation of the Bayesian statistics you could be totally right for yourself.

breaking an oath is no big deal.

Agreed. It sounds like a lot of prosecutors do so, and the FBI labs people certainly did.

My opinion of juries did take a bit of a nosedive when I was dismissed from a jury pool after sharing only my age, residence, name, and profession (engineer). In favor of other jurors who had glaringly obvious conflict-of-interest risks, like the juror whose entire family was police officers, for a case that had significant police testimony.

(sorry I think I meant moral hazards, not conflict of interest)

So, you haven't actually been on a jury but you know all about the people on juries? Must be nice to be psychic.

I've talked to many people who have sat on a jury, supported a girlfriend through law school, and have a few practicing attorneys in my social circle. So I haven't formed my opinions from Hollywood or even news/magazine articles where the topic is a miscarriage of justice. Wrt this article, it seems like the jury was fed a big steamy plate of you know what and they ate it up.

It's not actually unreasonable to learn about things that you have not personally experienced.

"Having performed thousands of similar hair examinations over the previous 10 years, the FBI agent told the court, there had been only eight or 10 times when hairs from two different people were so similar that he could not tell them apart"

At worst this is a 1% error rate, at best 0.1%. Scientific validity aside, I find it unbelievable this was not considered reasonable doubt.

> At worst this is a 1% error rate

If those 1000 pairs of hairs really were from different, randomly choosen people. But we don't know the quality of that sample. Maybe the examiner looked at 1000 pairs of hairs, 10 looked similar to him and those 10 were from different heads, while the 990 that looked different were from the same head. That would give an error rate of 100%.

Even if we assume there were no errors in the sample, then we still don't know anything about the correlation between the judgement of the examiner and reality. Maybe he randomly considers one in 100 pairs of hairs to look similar. So while yes, the error rate would be 1%, his judgement would have absolutely no informative value. It would be as good as throwing dice.

The comments section adds an interesting counterpoint to the Guardian's spin: he was also jailed on the evidence of the victim identifying his photograph, picking him out of an identity parade based on appearance and voice and testifying against him in court.

Whilst DNA evidence has subsequently exonerated him, there were pretty good reasons for the jury at the time to consider the case proven beyond reasonable doubt that didn't involve placing too much faith in dubious "expert witness" testimony about hairs.

Isn't eye witness testimony even more dubious?

It's possible the jury wouldn't have convicted him on eye witness testimony alone, but the fact that the physical "scientific" evidence agreed made it seem more legitimate.

Eye witness testimony, especially for cross-racial identification, is very dubious: https://en.wikipedia.org/wiki/Cross-race_effect#Cross-race_i...

>The victim had seen her assailant only fleetingly and in the dark, and the composite drawing that had been based on her description – the one that the police officer had thought looked just like him – referred to a black male of “medium complexion” when Odom’s skin is very dark.

Interesting that you get downvoted for saying that.

There are good grounds to be somewhat suspicious of forensic evidence; however, my understanding is that technical evidence like this is usually far, far more reliable than e.g. eyewitness statements. Those are horribly unreliable, and experienced investigators (or should we say "investigators") are able to convince their witnesses of having seen things that did not really happen at all.

Eyewitness statements aren't reliable (hell, I've given an eyewitness description that wasn't that reliable, judging by the reaction of the police officer who had just taken a statement from somebody else), but I'd see it quite hard for a court in a pre-DNA testing era not to have convicted when a reasonably certain and consistent testimony from a rape victim is supported by the supposed forensic experts at the time, especially not if the chief argument for the defence was a weak alibi offered by the accused's mother.

Though since they've had DNA techniques sufficient to overturn the expert witness evidence for rather a long time now it's surprising it took this long to overturn.


That's from the article. Parent is referring to the evidence that wasn't mentioned in the article.

So take two people, take two hairs of each, pick two random hairs of those two, and compare them. I guess this could work out quite well. Do this for 1000 pairs of two different people, and 10 will fail, so that is 1%.

This is how I understand it now. It's not that he says that he compares one hair to those 1000, and then still was sure to be able to keep them apart. That was how I first read it.

For a good comparison, he should have used a line-up. Take one hair from 100 persons with similar hair color and use that as test sample. If he was still able to tell which was from the same person, he would have a case.

Kirk Odom notwithstanding, presumably they were only doing hair anlysis of suspects that were already presumed guilty. This is not a random sample.

1% chance a person is innocent is probably roughly around the reasonable doubt standard.

The problem is courts often misapply statistics. Prosecutors will often say in a case like this that there is a 100:1 chance that he did it because of the error rate.

But they aren't applying Bayes Theorem.

Well, scientists are like priests: their word is gospel to the unwashed masses. I suppose the defendant didn't have a scientist on his side who could identify and challenge the bullshit.

I do like how they double down on the pseudoscience and had Odom performing regular lie detector tests.

The US is a world leader in bureaucratic use of pseudoscience.


I was astounded to learn how widely the Polygraph is used in the US, despite it being described as only about "90% reliable" by its proponents!


Polygraph interviews have at least 2 important functions.

1) The polygraph is a pretty decent prop. At least some people become more truthful, or at least worse liars, when they believe lie detection is happening.

2) Even if the truth of something cannot be ascertained at the time, if it ever comes out later, you have a very simple path to firing/imprisoning/otherwise destroying the person: they lied to a federal agent. This is a sigificantly easier bar to clear than actually proving they committed a crime. For this the polygraph is not actually important, but the interview itself is.

In your arguments; how is a polygraph different from a federal agent?

A federal agent can be trained to detect lies, and therefore function as a lie detector. The polygraph is superfluous.

Tests are never perfect. And false positives are not critical in many applications. For instance, filtering folks for a job - you can reject extra candidates if you have plenty of candidates or a strict criterion that must not be violated.

When I interview candidates, I take half of the resumes we receive and throw them in the trash. I don't want to hire unlucky people. /s

I have a sneaking suspicion that the polygraph is often just cover for implementing an arbitrary hiring process based upon the feelings of the interviewer. For example, let's say you're hiring police officers, let's also say that you're also a bit of a racist, now you can reject women and minorities and still have an "objectively fair" hiring process, since every candidate had to undergo the same process.

You're absolutely correct about the arbitrariness of polygraph interviews. Any operator who tells you they're used to detect truth is flat-out lying. They're used to put psychological pressure on candidates in order to elicit disclosures. The more honest operators will admit to this. What they won't admit is that they're also used by law enforcement as a smokescreen to obfuscate their terrifyingly inept hiring practices. They work hard to ensure that they maintain a specific departmental culture, and it's very easy for operators to fail a candidate who they think will bring in too much diversity. And I'm not talking about skin color, though I'm sure that happens sometimes too.

Basically using polygraphs lets LE continue to hire meatheads. When one of them ends up on the news for acting like a meathead they wave their hands and bluster about "strict hiring practices", and that's the end of it.

Sure you do - by not ever collecting them to begin with. Probably more like 99%.

We can make up things about racist police hiring, but that's not the same as facts.

It was an allegory, and a well worn joke. I even marked it "/s". Do you also get confused by Onion headlines?

>We can make up things about racist police hiring, but that's not the same as facts.

Yeah, I was just kidding, there are probably no racists running police departments. I mean, what are the odds?

Sorry, it must be humorless Wednesday for me.

If a polygraph is misused, that's sad and wrong. But it can also be used as an interview technique, to put folks under pressure and get more authentic answers to important questions. Maybe its all psychological, but that's fine. As long as it helps screen, and does more good than harm.

Fair enough. Humor isn't always easy in text anyway.

The polygraph is a confidence game. It is 100% psychological. If you're honest and you try hard, you'll still harm some people arbitrarily. It has immense potential for abuse though, and I would reject its use for that reason; even if it didn't suffer from the other problem.

I guess I'd repeat the point: some hiring isn't about being fair to the candidates. Any harm to them (unfairly excluding a good candidate) is mitigated if the process keeps out disastrously inappropriate candidates.

And if the polygraph operator is independent, then abuse would have to be systematic somehow. Which may not be a lot different from any other interview technique.

I don't agree that employers, especially government employers, are entitled to treat job candidates unfairly.

In an ideal world. But on the other hand, who would agree that we should make NO attempt to exclude certain personalities from being police officers? Sometimes the cost of wrong hiring is much, much larger than the cost of unfairness.

The bigger problem is that it just doesn't work Even if we posit that we can be extra-rough in screening because we need the best for $GOOD_ENOUGH_REASON.

The "bad guys" know that the polygraph is nearly worthless. They know what's theatre and what's not. So you don't apply any pressure to them. They know that placating you with your pat questions is the solution and they calmly work toward that. So your chance of success against anyone "worth worrying about" is nearly zero.

But the people who will crack, and probably have a nearly unending closet of real and semi-real stories, are the innocent people. This isn't just collateral damage, but now you're wasting time investigating people who are almost certainly not the bad guys. And reducing your labor pool...

Many police departments administer an IQ test, on which scoring too high is grounds for exclusion. Given that, I'm willing to say maybe we really should deny the police forces a personality filter. The filter they have chosen is terrible.

Maybe because often when we are wrong we don't ruin someone's life in the process, so it's ok. Here is not, I wonder what you would say if you were the one in jail.

Of course I would bitch and moan if I were the one in jail. That's a respected part of our judicial process - advocacy. Everybody pitches for their team; a judge makes the best decision they have with the info available.

Its a terrible process, only a little better than everything else that's been tried.

Of the over 200 sovereign states with unique judicial processes, which one of them is specifically is better than all the judicial processes that have ever been tried?

If you are saying it is the US, I'm not seeing what evidence you've offered that suggests that to be true. It just seems an odd statement to make without supporting evidence.

Advocacy. That process. Not unique to the USA.

Do you think this "expert" should get 22 years in prison? And maybe his boss too

I'd rather see his expression if he ever found himself face to face with someone his false testimony put away for a couple decades... the majority of the prime of someone's life gone in a flash because of such incompetence... it's hard to fathom.

The FBI expert doesn't want to accept the truth, preferring to see himself as the victim of false scientific claims. He says:

> about the nationwide inquiry that is under way into the FBI’s use of hair analysis: “It’s all a bunch of baloney,” he said. “It’s all a bunch of poppycock.

His bosses too.

> A senior manager from the FBI laboratory, Harold Deadman, told his global partners: “We are believers in hair comparisons.”

They are BELIEVERS. You can't challenge men of faith.

I'd rather see his expression if he ever found himself maliciously prosecuted and placed behind bars based on his own specious arguments.

They should all be tried for perjury.

Edit: And it's too bad that civil suits aren't an option.

Yes, perjury should be considered in the first place. He testified it's very very unlikely for hairs of two people to be so similar, which (according to the article) is false.

For convenience, here is a quote from the article, describing what the expert said:

  Having performed thousands of similar hair examinations
  over the previous 10 years, the FBI agent told the court,
  there had been only eight or 10 times when hairs from two
  different people were so similar that he could not tell
  them apart – suggesting the firm probability that the
  rapist’s hair and Odom’s hair had come from the same scalp.
I think it's worth to address the

  suggesting the firm probability that the
  rapist’s hair and Odom’s hair had come from the same scalp.
as a lie. He said this is supported by thousands of experiments, but didn't give enough information to the court about the methodology of the experiments, so we address only this conclusion he provided. He should not escape by saying - "I told the court the numbers and they should have calculated probability themselves".

But in addition it's worth asking about those thousands of experiments. Did he really perform the experiments? What was the methodology? And if the experiments were organized so that they obviously do _not_ support his conclusion, then it's an additional evidence of lie - he knew these experiments do not suggest any firm probability.

Also, was he instructed by his superiors to testify in that form?

It was pseudoscience, with a veneer of misapplied statistics.

I do get that it's hard to prove perjury by expert witnesses. They're allowed to testify about their opinions. Witnesses can otherwise only testify about "facts". Those are arguably opinions too, about what they remember, but that's another matter. Anyway, I believe that expert witnesses are safe, as long as they don't lie about "facts".

But they should still be tried. Maybe for conspiracy or whatever. Even for following orders without disclosing that fact. Get some smart prosecutors on it.

Expert are allowed to express opinions, but are they allowed to express knowingly false opinions?

For example, somebody uploaded an image promoting inter-racial hate. I'am invited to the court as an expert, and asked "Here is the HTTPS log with the IP address of the defendant, his client certificate (he authorized with client certificate). Does it prove that the defendant uploaded this image?".

And I testify: HTTPS is secure hyper TEXT transfer protocol, but we have an image here, not text. Image can not be uploaded with hyper TEXT transfer protocol.

Is it a perjury?

Yes, it's arguably perjury. And for something as obvious as this, it would be hard to claim that it's just a difference of opinion.

But for expert opinions that involve substantial interpretation of evidence, it's hard enough to exclude under the Daubert standard, let alone to make a case for perjury.

I would like to note the Daubert standard applies to how a court actions (how it accept or reject expert opinion). While our subject is not court actions, but the expert actions - was he committing a perjury. It's a different topic.

But I understand the difficulties, it's a subtle issue. I even admit it could be just ignorance of the "expert", without intentions - just and accident.

I do not pretend to provide a correct and well formulated accusation, I mean there are ways to explore. It would of course require time and efforts (collect facts, speak with the ex-prisoner, reading the case materials, questioning the "expert").

Did the "expert" have motives? Was he instructed by superiors how to testify? Did he really perform those thousands of tests - according to the article this phrase was a common cliche circulating between FBI agents, so probably he didn't really perform the experiments.

There might be facts allowing to differentiate this case either as a intended pejury, criminal negligence or an accident.

BTW, another surprising thing in this article is how little care the court gives to the fate of this guy. They were just told about 8 to 10 cases when similar hairs were from different people, and nevertheless sentenced the guy without any other reliable evidence.

Why civil suites aren't an option?

In the US, federal agents have qualified immunity from civil suits.[0] So one must sue the federal government, and federal courts have jurisdiction.[1] It's a hard slog.

[0] http://www.justice.gov/usam/civil-resource-manual-33-immunit...

[1] http://federalpracticemanual.org/node/12

Could be more ridiculous. Keith Brown (a UK citizen) was arrested in Dubai on allegations that the authorities had found 0.003 grams of marijuana on the sole of his shoe, and threatened with four years of jail. (Eventually they just shipped him back, though.)

And the Swiss guy who according to the story served 4 years for poppy seeds on his clothes. My conclusion from this is that I never wish to go to Dubai.


Eating the wrong bagel can put a probationer in the states back in jail. Their drug tests are ridiculous, sometimes.

That's so sad. He missed his child growing up on the whim of a police officer and a prosecutor.

People make jokes about the Libertarian practice of repeating "Am I being detained? Am I free to go?" when questioned by a police officer but it would have done this man a lot of good.

I see this as being just as much about the power of police officers to steer an investigation, regardless of where the evidence points as it is about the reliance on pseudoscience and the CSI effect.

> People make jokes about the Libertarian practice of repeating "Am I being detained? Am I free to go?" when questioned by a police officer but it would have done this man a lot of good.

People should very much remember their rights and the distinction between being detained and "voluntarily" cooperating.

The reason why libertarians get made fun of is because they just keep shouting the same thing over and over, even after an answer in the affirmative has been given ("Am I being detained?" "Yes" "Am I being detained?"). They sound like a toddler who thinks they have a get out of jail/trouble free card if they just keep shouting the same phase over and over.

But, sure, teach people their rights and their right to remain silent (and to have a lawyer). But also remind them that shouting some phase over and over again doesn't provide them legal cover or help situations de-escalate. And, yes, they will be made fun of for acting like an idiot.

How is one to know for certain if they are being detained if one does not ask?

The questions are repeated when a noncommittal response is given or when the answer is incongruous with the behavior of the officer(s). For example "I just want to ask you some questions." or "No, you're not being detained. Can you come over here and let me ask you some questions?"

It's done, not because of some belief that it will allow the guilty to go free but because they want to expose the coercive nature of certain police interactions.

Am I being detained? Am I free to go? Am I under arrest?

Police officers only have to give the Miranda warning when someone has been arrested. Any statements made before an arrest are assumed to be voluntary. If an officer has probable cause, they're going to arrest you. Making it clear that you have no interest in cooperating is in your best interest.

There is one phrase that can be stated that does give some legal cover, depending on circumstance. "I do not consent to any searches" will require an officer to prove that he had reasonable suspicion or probable cause to conduct a search as he or she will not be able to claim that the search was with the consent of the suspect.

> "The reason why libertarians get made fun of is because they just keep shouting the same thing over and over, even after an answer in the affirmative has been given ("Am I being detained?" "Yes" "Am I being detained?"). They sound like a toddler who thinks they have a get out of jail/trouble free card if they just keep shouting the same phase over and over."

From what I've seen, that is more a sovereign citizen thing.

People make fun of libertarians for things that sovereigns and anarchists say, because hey, why not? Politics is dirty; if the shit sticks, throw it.

We also make fun of them for being ideologues. Don't forget that part.

By no means was I trying to provide a comprehensive list of reasons that people make fun of libertarians. That would take far too long.

In the American south - bite marks are becoming discredited now.


Hopefully now all other forensic techniques are going to be heavily scrutinized as it should be. It can be a great tool but it should be carefully used.

I wonder if DNA evidence will prove to be subject to the same kind of over-interpretation?

"Low copy number" DNA analysis has had a degree of controversy swirling over it.

I like how they say "the chances of a match with a random chosen person and not the defendant is X"

But people who are genetically related are not randomly distributed.

Also if DNA is the only thing linking the suspect to the crime, it's possible that something like a national DNA database just becomes a way to convict people for having been in places where crimes later occurred. If you have DNA, it's going to "match" some set of people.

Yes, I wonder that too.

Wow the FBI really do act like they still call their headquarters the J. Edgar Hoover building. Celebrating one of the worst american criminals of the 20th century. Is the FBI beyond reform? Should it just be shut down entirely and a wholly new agency set up. The more you find out about what they actually do the worse it gets. It's dumbfounding.

> Wow the FBI really do act like they still call their headquarters the J. Edgar Hoover building.

Don't all of us?


No I don't think all of us celebrate that kind of criminal or want the FBI to be a criminal organisation. At the point you're faking evidence to get convictions on an institutional basis, yeah, it's more than one person agreeing to commit a crime. When it's their policy to repeatedly do so and to abuse whistleblowers, it really is organised crime.

Beyond salvation? Clearly a large number of people at the FBI need to be in jail for breaking very serious laws.

Falsifying evidence "to get convinctions" of the innocent. Yeah. Anyone doing that need to defending their actions in court as the accused.

So what are the real success/failure figures of the technique?

Well that's the problem, no body has studied it so no body knows. And with DNA matching now available, there's little point wasting time and money studying it now. Future cases can use DNA matching, as can historical cases (and if the hair samples are no longer available, even if the technique were studied and found to be valid there is no way to verify that it was applied properly in the first place).

Hair comparison seems questionable on the surface. I can pull two hairs out of my head that look very different. I have some sections of hair that are very fine and lighter and some sections that are thick and darker. My hair has also changed texture over the years which seems common for my family.

Here is another sad story of a man put to death based on pseudoscience


There is also the partial print of the Madrid bomber fiasco... https://en.wikipedia.org/wiki/Brandon_Mayfield

Rand Paul is the strongest candidate regarding the much needed criminal justice reforms. He's also the one best at his current job, senator.

    Did he heck.
I know we are in a different age of journalism. But about two-thirds through the article, a paragraph starts with the above sentence. How does The Guardian let something like this slip by?

A happy-end story to dilute the sore: http://goo.gl/raZTTm

Absolutely repulsive. The people giving this "evidence" should be put in jail and the key thrown away.


-1 Flamebait

Ok, not 22, then 2, or 5 years. They should be responsible for putting arbitrary people into jail just to get better conviction numbers.

Icebraining is not replying to you, but to a comment that has been flagged.

I thought I saw his reply when the flagged comment text was displayed in full, and thought it is my comment. Maybe I am wrong, or maybe it is some HN glitch that his thread separated from my comment. I don't know, but not important.

The layout can get misleading when comments are flagged or deleted. Sorry about that. We've tweaked it a couple times to reduce this problem but obviously not enough.

I was definitively replying to smegel, not your post :)

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