Monday, December 2, 2013

Do Police Interrogation Techniques Produce False Confessions?

In “The Interview” (p. 40), Douglas Starr examines the Reid Technique of interrogation, and investigates whether it can prompt innocent people to confess to crimes they didn’t commit. The Reid Technique, Starr writes, “has influenced nearly every aspect of modern police interrogations, from the setup to the interview room to the behavior of detectives.” Police forces, the military, the F.B.I., the C.I.A., the Secret Service—“almost anyone whose job involves extracting the truth from those less than willing to provide it”—have been trained in the method. John E. Reid & Associates, named for the method’s founder, claims that its trainees can get suspects to confess eighty per cent of the time. “A growing number of scientists and legal scholars, though, have raised concerns about Reid-style interrogation,” Starr writes. “Of the three hundred and eleven people exonerated through post-conviction DNA testing, more than a quarter had given false confessions—including notorious cases, such as the Central Park Five.” The full extent of the problem is unknown—there is no national database of wrongful convictions. “But false confessions, which often lead to these convictions, are not rare,” Starr writes, “and experts say that Reid-style interrogations can produce them.” 

The Reid Technique begins with an interview based on the questioning style of polygraph testing. If a suspect is thought to be lying, the interrogator proceeds to the method’s second phase, in which he seeks to present the accused’s guilt—bluffing about evidence, if need be—to garner a confession. The leading expert on false confessions, Saul Kassin, “believes that the Reid Technique is inherently coercive,” Starr writes. “The interrogator’s refusal to listen to a suspect’s denials creates feelings of hopelessness,” and the confession becomes an escape hatch. One former homicide detective, who used the Reid Technique for years, began to doubt its credibility after he led an investigation that resulted in an innocent woman confessing to being an accomplice to murder. He was mystified, but when he reviewed the tapes later he discovered ways in which he and his partners fed incriminating details to the suspect. His subsequent research into false confessions led him to an alternative to Reid-style interrogations, called the PEACE technique, widely used in Britain, which instructs police not to seek confessions at all but, rather, to gather evidence and information, almost as a journalist would. Bluffing is prohibited. “I think the Reid Technique was a child of its time,” one of the psychologists who developed the PEACE technique says, noting that science has moved on. Starr reports that “some American law-enforcement officers are trying to develop approaches similar to PEACE.” While Kassin—who has spoken to many police departments and prosecutors’ offices—notes that interrogation can be improved in the U.S., he holds out little hope that it can be overhauled entirely. Starr writes, “The culture of confrontation, he feels, is too embedded in our society.” Please see this link; A PDF is attached:

How DNA contamination can affect court cases

How DNA contamination can affect court cases is the title of this important article published in 2012.

Wednesday, November 27, 2013

Review by Sara Mayeux of Fighting for Their Lives: Inside the Experience of Capital Defense Attorneys.

Susannah Sheffer.  Fighting for Their Lives: Inside the Experience of Capital 
Defense Attorneys.  Nashville  Vanderbilt University Press, 2013.  224 pp.  
$27.95 (paper), ISBN 978-0-8265-1911-5.

Reviewed by Sara Mayeux
Published on H-Law (November, 2013)
Commissioned by Craig Scott

I should alert H-Law readers at the outset that this book is not a conventional 
work of legal scholarship. It is, rather, a conversational collective portrait 
of veteran capital habeas lawyers, written by an activist in the field--Susannah 
Sheffer, a staffer at the anti-death penalty organization Murder Victims' 
Families for Human Rights. Seeking to illuminate the "emotional experience" of 
attorneys in this isolating line of legal work (p. 4), Sheffer presents an often 
moving account of the psychological and even physical toll of representing death 
row prisoners.

The book is organized topically, with Sheffer's own observations interwoven with 
attorney reflections about such subjects as why they got into death penalty 
work; how they maintain the motivation to continue; how they define their role; 
and what strategies they use for coping, or not, with the pressures of their 
uniquely high-stakes, low-success job. In the anecdotes they recount, these 
attorneys cycle through rage, fear, anxiety, guilt, helplessness, and numbness; 
they fall into ruts of depression; they work all night, drink too much, and 
flail through nightmares.

A recurrent theme is the disconnect between their professional identity and 
training in the law, with its bourgeois conventions and rules, and the horrific 
dysfunction and suffering to which their work exposes them. However well 
prepared for the intellectual challenges of crafting a federal habeas petition, 
they were never taught how to comfort a condemned man's mother in a prison 
parking lot, or to square their friendships with their clients with compassion 
for the victims of their clients' crimes. As one lawyer tells Sheffer, "there's 
no course in law school in bedside manner at an execution"
(p. 88).

_Fighting for Their Lives_ would make good companion reading for a criminal law 
clinic or externship; excerpts might also be used to spark discussion in legal 
ethics courses. Some chapters are meatier than others. I found most thought 
provoking chapters 5 and 6, which grapple with the psychological fallout of 
capital representation and the relative dearth of support mechanisms within the 
legal profession--particularly in comparison to other fields (such as policing 
or medicine) that regularly expose professionals to traumatic situations--and 
chapter 8, on capital defenders' sometimes volatile relationships with their 

For legal historians, however, the book's format tempers its incidental value as 
a quasi-primary source in the history of the modern American death penalty. Many 
of Sheffer's sources were in college or law school during the punitive turn of 
the 1980s and '90s.
Their memories could add depth to our understanding of the day-to-day operations 
of what Justice Harry Blackmun called "the machinery of death,"[1] forming a 
more personal, ground-level complement to big-picture sociological and 
historical works like David Garland's _Peculiar Institution: America's Death 
Penalty in an Age of Abolition
_(2010) and James Q. Whitman's _Harsh Justice: Criminal Punishment and the 
Widening Divide between America and Europe_ (2005) that ask why capital 
punishment has persisted in (parts of) the United States beyond its abolition in 
other Western democracies.

But Sheffer reveals little about the identity or background of the twenty 
attorneys whom she interviewed. The reader learns that they average nineteen 
years' experience and are "highly regarded"--the sort of lawyers who are 
"invited to speak at conferences and to consult on others' cases" (pp. 5-7, 
138). Not surprisingly given the geography of the modern death penalty, they 
work primarily though not exclusively in the Deep South. That's about it. 
Sheffer does not tell their ages, class or racial or sexual or religious or 
political identities, or even where exactly they live and practice. Their 
reasons for entering death penalty work are sketched in generic outlines, such 
as being "a good Samaritan" or "tak[ing] the side of the underdog" (pp. 17-18). 
This lack of personal detail blends the individuals interviewed into a sort of 
amalgamated ur-defender.

Sheffer's effort to protect her sources' confidentiality, although perhaps 
necessary to secure interviews delving into sensitive topics, means that 
_Fighting for Their Lives_ furnishes little of the raw material that historians 
would need to trace change over time or variations from place to place. As I 
hope is evident, I offer that observation only in the spirit of a public service 
announcement, and not as a criticism, since aiding historians is not, of course, 
the book's goal. On its own terms, the book succeeds, highlighting emotional 
dimensions of lawyers' work that are often overlooked in legal scholarship and 


[1]. _Callins v. Collins_, 510 U.S. 1141 (1994).

Citation: Sara Mayeux. Review of Sheffer, Susannah, _Fighting for Their Lives: 
Inside the Experience of Capital Defense Attorneys_.
H-Law, H-Net Reviews. November, 2013.

Sunday, November 10, 2013

Reference Manual on Scientific Evidence

     Professor Charles Ehrhardt gave a recent lecture about the Daubert standard. During the lecture he said that the best source is The Reference Manual on Scientific Evidence. This manual is designed to assist judges in managing cases involving complex scientific and technical evidence.
     The manual can be found here.

Wednesday, October 23, 2013

Preparing and Litigating Motions to Suppress Statements and Confessions

1.  Be aware of the psychological impact of confessions
    --The mere mention of the word changes the attitudes of judges, prosecutors, jurors and defense lawyers. “Confessions” destroy the adversarial process.
     --A large percentage of confessions are false, in whole or in part.

2. Discover the statements: “The state was obligated to disclose to Mason any statement that Mason made. See Fla.R.Crim.P. 3.220(b)(1)(C). The fact that the witness was on the state's witness list and Mason failed to depose him does not vitiate the state's discovery violation.” Mason v. State, 654 So.2d 1225 (2d 1995)

3. A motion to suppress statements can be filed at any time before trial, or even during trial. Fla. R. Crim. Pro. 3.190(i)

4. The key question: Was the statement voluntarily made? The requirement of the Fourteenth Amendment is that the trial judge make a determination that a confession was freely and voluntarily given before it is to be considered by a jury. Jackson v. Denno, 378 U.S. 368 Finding must be made with “unmistakable clarity.”

 a) Promises: Confessions are not deemed freely and voluntarily given if they have been elicited by direct or implied promises of leniency. State v. Walter, 970 So. 2d 848, 851 (Fla. 2d DCA 2007). Thus where an officer offers to “help” or “fix things” without clarification on the limits of the officer's authority, courts have found that a defendant's resulting confession was involuntary. See Day v. State, 29 So. 3d 1178, 1181 (Fla. 4th DCA 2010); Ramirez v. State, 15 So. 3d 852, 856 (Fla. 1st DCA 2009).    Dermio 112 So.3d 551 (2d DCA 2013)
Better case: Day v. State, 29 So. 3d 1178   4th Dist. 2010

b) Threats or Coercion: “Once it is established that there were coercive influences attendant upon an initial confession, the coercion is presumed to continue "unless clearly shown to have been removed prior to a subsequent confession." State v. Outten, 206 So. 2d 392, 396 (Fla. 1968)
5.    Miranda issues:
       Whether the defendant was "in custody"? (if so, why? Illegal arrest/detention = suppression: B.S. v. State, 548 So.2d 838 (3rd 1989) (police station confession was improperly admitted as the product of a non-consensual confinement)
       Where the statements in response to "interrogation?" "Interrogation takes place ... when a person is subjected to express questions, or other words or actions, by a state agent, that a reasonable person would conclude are designed to lead to an incriminating response." Traylor, 596 So.2d at 966
       If the defendant was in custody and in response to interrogation, then were the Miranda warnings properly given?
       If so, did the defendant make a intelligent, voluntary and knowingly waiver?: To determine if a waiver is valid a court must make two inquiries. First, the court must determine if the waiver was voluntary in the sense that it was the product of free and deliberate choice rather than intimidation, coercion, or deception. Second, the court must determine whether the waiver was executed with a full awareness of the nature of the rights being abandoned and the consequences of their abandonment., the State has the burden of proving the waiver is valid by a preponderance of the evidence. “State v. Sliney, 699 So.2d 662, 668 (Fla. 1997)
       Waiver of Miranda should be in writing Traylor, 596 So.2d 957. 966
       Was statement recorded? If not, is it reliable.

6.  Trial issues:
 --carefully review statement and redact irrelevant, inadmissible portions.
--Be on lookout for Detective confronting Defendant with guilt: Mohr v. State, 927 So.2d 1031 (2nd DCA 2006)(The jury could not reasonably have been expected to disregard the aspersions of guilt created by the detective's word)
--You can litigate voluntariness before the jury, and call expert witnesses on false confessions. Boyer v. State, 825 So.2d 418 (1st DCA 2002)
 -- Jury Instruction:: “A (Defendant’s) statement should always be considered with caution and be weighed with great care to make certain it was freely and voluntarily made.  . . .  If you conclude the defendant’s out of court statement was not freely and voluntarily made, you should disregard it.”

7. What if you want the Defendant’s statement admitted? The State may not be able to resist. But if they do, See Judge Farmer’s dissent in Cotton v. State, 763 So.2d 437, 445-46, or consider whether the statement falls under a hearsay exception/

8. Appeals:
   Orders denying motions to suppress confessions are not dispositive unless stipulated to by the parties. England v. State, 46 So. 3d 127, 129 (Fla. 2d DCA 2010)

    At trial you must renew your objection at the time the statement is admitted.

Tuesday, October 22, 2013

Is 'shaken baby syndrome' shaky science?

 Pamela Jacobazzi of suburban Bartlett has spent the last 14 years in prison for violently shaking 10-month-old Matthew Czapski to death. The 58-year-old former home day care operator is among hundreds of people nationwide convicted in recent decades on the basis of what doctors call "shaken baby syndrome." That diagnosis gained prominence in the 1980s and '90s, as publicity campaigns warned of the dangers of shaking infants.

Lawyers for Jacobazzi argued that her conviction should be set aside because jurors didn't hear evidence of other medical theories on what killed Matthew.
In September, though, DuPage County Judge Robert Kleeman rejected her bid for a new trial. He didn't rule on the validity of shaken baby syndrome. Instead, he said her trial attorneys had possessed all available medical evidence and had presented a reasonable defense.
But a question lingers here and in similar cases across the U.S.: Is shaken baby syndrome based on shaky science?
You may be surprised to hear it after so many years of warnings on this, but there's a fierce medical and legal debate over shaken baby syndrome, known as SBS. Critics argue that research doesn't show that the symptoms commonly associated with the diagnosis — bleeding and swelling in the brain and behind the eyes — can be caused by shaking alone.
"Virtually all the hallowed tenets of shaken baby syndrome have been challenged on the basis of scientific principles and have been found wanting or wrong," Dr. Jan Leestma, a former Lurie Children's Hospital of Chicago neuropathologist, wrote in his 2009 textbook, "Forensic Neuropathology."
Leestma tells us that a raft of biomechanical studies cast doubt on the idea that shaking a baby will generate enough force to seriously injure his or her brain or cause other symptoms of the diagnosis. But SBS proponents tell us that those studies are incomplete; they don't, for instance, adequately account for multiple or repeated shakings over time.
Let's stop right here to make one thing clear: Violently shaking a baby can lead to serious injuries, particularly if there is neck whiplash or the baby's head strikes a wall or floor. No one, including those skeptical of the science underlying this diagnosis, suggests that such conduct is anything but dangerous and wrong.
That said, it's also clear that SBS is among the trickiest diagnoses for doctors to reach. Babies can't tell doctors what happened. Some illnesses and simple accidents can mimic the symptoms. In some cases, there are no outward signs of abuse. Often there are no witnesses to suspected abuse. What's more, injured infants may be lucid after whatever incident caused the injury. On occasion, infants may even be lucid for hours before they collapse and die. That expands the pool of potential causes and, if authorities suspect abuse, of potential perpetrators.
Jacobazzi is due to be paroled in 2015. But many other people are in jail across the country, convicted of shaking infants. Are some of them innocent? This complex but out-of-the-limelight debate will be hashed out in courtrooms and research labs. That's healthy for medical science, and for our justice system.
Decades ago, many doctors believed that if a child suffered from three symptoms — subdural (brain) and retinal bleeding and brain swelling absent a fracture or bruise to indicate an accident or fall — then the injuries likely happened through vigorous shaking.
In 2009, though, the American Academy of Pediatrics expanded its definition of shaken baby syndrome to stress that while shaking can cause injuries, other factors can be just as important, including the blunt impact of a head against a solid surface like a floor or wall. Researchers also stress that accidents, a child's pre-existing medical condition, medical history and genetic disorders can cause injuries that mimic the effects of abuse. The academy, based in suburban Elk Grove Village, suggested a broader term, "abusive head trauma," to describe the array of injuries abuse can cause.
Dr. Cindy Christian of the academy's committee on child abuse and neglect tells us the medical consensus remains strong around the science of SBS. "Some babies are injured by shaking," says Christian, who co-wrote the 2009 report. "Some by blunt impact. Some by a combination of factors." That report "doesn't say shaking is benign. It doesn't say shaking doesn't harm children. And it doesn't say there is no such thing as SBS.''
Expect to hear more about this. Last year the Innocence Network, a group of organizations that provide pro bono legal help for people who claim to be wrongly convicted, brought on a lawyer to pursue claims of innocence in shaken baby cases nationwide. Doctors will continue to refine the SBS diagnosis, evaluating new research and clinical experience.
The stakes here are high: A mistake in judgment can leave an abusive person in charge of a baby. Or it can land an innocent person behind bars.
That should leave us all shaken.

An Editorial from the CHicago Tribune publishes October 21, 2013

Tuesday, September 24, 2013

Affidavit in support of access to a DNA lab file

Some attorneys report to me that they are having trouble gaining access to the laboratory files maintained in DNA cases. I have prepared the affidavit below and perhaps that will of assistance should you run into discovery problems.


1. My name is Norman Adam Tebrugge. I have been a member of the Florida Bar since May 22, 1985. I became board certified as a criminal trial attorney in 1999. I spent twenty-three years employed as an assistant public defender for the Twelfth Judicial Circuit. For eighteen of those years I was assigned to the capital trials division. For the past five years I have been the owner/operator of Tebrugge Legal in Bradenton, Florida. At Tebrugge Legal I specialize in the defense of serious criminal cases, appeals, post-conviction, and consult with other attorneys on matters concerning DNA and forensic science.

2. In 1991 I represented a Defendant named John W. This case involved the first use of forensic DNA testing in the 12th Judicial Circuit. My co-counsel and I litigated the DNA issues extensively.

3. Since that time I have been involved in the litigation of dozens of serious felony cases involving DNA evidence. I have worked with DNA experts employed by the Florida Department of Law Enforcement (FDLE), the Federal Bureau of Investigation (FBI), Lab Corp of America, and other DNA testing facilities. I have also undergone training on several occasions, including attendance at “DNA for the Defense” sponsored by the National Center for Science, Technology and the Law in cooperation with the National Institute for Justice.

4. I have been called upon to train lawyers throughout the State of Florida about the proper investigation of cases involving DNA. Most recently, on September 19, 2013, I delivered a lecture at the annual capital training conference. The title of the lecture was “Litigating Flawed Forensic Science Cases at Every Stage.” More than 100 capital trial attorneys received continuing legal education credits at this lecture.

5. In ever case involving DNA evidence that I have ever been associated with, I have obtained the complete laboratory file from the agency that performed the testing. This lab file has been voluntarily turned over to me upon request in every instance.

6. The complete laboratory file contains relevant information about the processing of the critical evidence in a DNA case. The typical laboratory file contains documentation of the exact evidence handled, chain of custody, a case tracking form, evidence screening forms, serology, a “STR Summary Sheet” (if STR was the method of testing used), extraction methods, quality control assurances, a statistics report,  and graphic information showing the results that were interpreted by the analyst.

7. I am of the opinion that the minimum standards of professional competence for an attorney handling a case involving DNA evidence requires that the attorney acquire the complete laboratory file. Without this file the attorney is unable to challenge the evidence in a meaningful manner and this can lead to a complete breakdown of the adversarial process.

8. Effective July 1, 2013, before allowing expert testimony, the courts of this state must consider whether:
1.    the testimony is based upon sufficient facts or data;
2.   the testimony is the product of reliable principles and methods; and
3.   the witness has applied the principles and methods reliably to the facts of the case.
     The only way for counsel for the Defendant to consider and determine whether DNA evidence meets this criteria is for the attorney to acquire the complete DNA laboratory file.

Under penalties of perjury, I declare that I have prepared and reviewed this affidavit for accuracy and that the facts stated in it are true.

N. Adam Tebrugge   
Florida Bar # 0473650
Board Certified Criminal Trial Attorney

Tebrugge Legal
520 12th St. W. #203
Bradenton, Fl. 34205
(941) 544-6151

Sunday, September 22, 2013

Daubert Jury Instruction Florida

    This past week I had the honor of making a presentation on scientific evidence at the annual "Life Over Death" conference. One topic of conversation was the impact of Florida becoming a Daubert state as of July 1, 2013. I suggested that attorneys might want to start requesting special jury instructions in light of this change.
     In response, Jacksonville attorney (and all around good person) Teresa Sopp has drafted an initial proposed jury instruction concerning expert witness testimony in criminal cases. I see this as a good starting point:

              NUMBER             AS TO DAUBERT ISSUES

     Expert witnesses are like other witnesses, with one exception -- the law permits an expert to give his/her opinion.
     In determining whether an expert’s opinion is reliable, you should consider the following:

          1.   Whether the opinion testimony based on sufficient facts or data;

          2.   Whether the opinion testimony the product of reliable principles and methods; and

          3.   Whether the witness has applied the principles and methods reliably to the facts of the case.

     Like other witnesses, you may believe or disbelieve all or any part of an expert’s testimony.

                                    Respectfully submitted,