Category Archives: Uncategorized

Night of the living (legally) dead

Talk about your confirmation bias:  Under Ohio law, if three years have passed since the state thought that you had died, showing up to court under your own power, breathing, and having an intelligent conversation with the judge is not enough to prove that you are living.  Maybe they have a zombie problem that we don’t know about.

In 1986, Donald Miller ran away from home.  Eight years later, his wife had an Ohio court declare him dead so that she could collect social security for their children.

In 2005, Miller escaped from his grave (Florida) and went back to Ohio.  He now wants people to treat him as though he were alive.  Amusingly, his wife widow formally objected to his legal resurrection.  (Takes “he’s dead to me” to a whole new level, doesn’t it?)  The judge refused to say that he was alive.

You see, Ohio’s named-with-an-incorrect-apostrophe law, the “Presumed Decedents’ Law,” gives you only three months to be undeclared dead, or, if you prefer, be declared undead.  Ohioans can be in one of several conditions:  living, presumed dead, erroneously presumed to be dead (the presumption of death having been vacated), and dead.  I believe the symbol for “erroneously presumed to be dead” is this:

artist_formerly_known_as_prince

As Lowering the Bar pointed out, being scientifically alive but legally dead puts Miller in quite a quandary.  As Lowering points out, if Ohio considers him dead “for all purposes under the law of [Ohio],” can it charge him with a crime, especially one that requires a state of mind like premeditation, intent, knowledge, or recklessness?  He might have a great defense: “Hey, judge, for purposes of Ohio law I am dead, and therefore could not have intended to take those chickens for my own use.”  Then again, if he tries to appeal his conviction, the appellate court might consider his appeal is moot because once a criminal defendant is dead, there’s not much an appellate court can do for him.

I think that under Ohio law, we can safely say that science is “dead,” at least as it pertains to determining whether a human organism is living.

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Russia recriminalizes libel–Putin says that it will help scientists

I wasn’t surprised to see recently that Russia has recriminalized libel, raising the penalty for it by orders of magnitude (from $100 to $160,000).  Fortunately, though, there is still no penalty of imprisonment for the offense.

What surprised me was Russian President Putin’s statement that the law will be of benefit to scientists.  So I started thinking (despite the advice of my doctors): do legitimate scientists ever sue people for libel?  If so, is it a good idea for scientists to use libel law to protect reputation?

I could not remember an instance of a legitimate scientist suing someone for libel.  A quick search found a big case from a couple of years ago, when a Canadian climate scientist sued a paper and an author for libel.  But I still think it’s unusual (is that just my bias speaking?).

Indeed, libel laws are usually used by hucksters masquerading as legitimate scientists in an attempt to silence legitimate scientists (think British Chiropractic Association and Andrew Wakefield).

In order for science to work and human knowledge to advance, scientists need to be free to criticize each other without fear of lawsuits from other scientists.   That’s why groups like Sense About Science are working to keep libel laws out of science.

What really puzzled me about Putin’s statements, though, was his assurance that ““It is by a definition that a person involved in politics is unlikely to go to a court to accuse someone of libel.”  Of course!  And to think that critics of the new law have said that the law is intended to silence opposition to the government.   Really, when was the last time Russian politicians used the force of law to silence an opponent?  (And Tuesday doesn’t count.)

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Mandatory vaccination laws cause…child prostitution?

I’ll bet that you thought that the purpose of laws requiring children to be vaccinated was to prevent dangerous diseases from maiming and killing our youth.

Silly you.

As it turns out, the purpose of mandatory vaccinations laws is to provide the government with children for prostitution.  Let me explain.

There’s an attorney in Piermont (Rockland County), New York, by the name of Patricia Finn.  She bills herself as an anti-vaccine lawyer.  In fact, the title of her website, which shows up as a link in Google search results for her name, is “Rockland County Vaccine Exemption Lawyers.”  Finn went public with a claim that she had been served with “papers to suspend [her] license to practice law.”  She also claimed that she was “being ordered” to disclose the names of clients of hers who did not vaccinate her children.

Enter our hero, Mike Adams, “The Health Ranger.”  In a post on his blog on his website, naturalnews.com, he predicts that the end result of this will be that the State of New York will sell unvaccinated children into sex slavery:

[The demand for Finn’s client’s names] could serve as the starting point for New York State to dispatch CPS [Child Protective Services] workers to the homes of all of Finn’s clients, where their children might be kidnapped by CPS and sold into sex slavery (this is a common behavior of CPS workers across the country, where low-income children simply “disappear” into the system and suffer ongoing sexual abuse by state workers or even high-paying clients, similar to what happened at Penn State).  I don’t have the space to go into all the evidence that CPS functions as a child kidnapping and sex slavery ring, but the organization isn’t called “Communist Pedophile Services” for no reasons.

Actually, Mr. Ranger, the organization isn’t called “Communist Pedophile Services” at all.  A Google search revealed no uses of that phrase other than your own (and several blogs that copied yours).

So, there you have it.  Mandatory vaccine laws caused Attorney Patricia Finn to be investigated and forced to turn over her client list, which will be given to Child Protective Services so that they can kidnap unvaccinated kids to be sold into sex slavery.

Why would CPS go to all of this trouble to obtain sex slaves if they just go around kidnapping kids anyway?  Do unvaccinated kids make better sex slaves than vaccinated kids?

I tried to obtain official information on the investigation into Ms. Finn, but, as I expected, officials in New York could not share any information.  Under New York law, all documents and information relating to the investigation are confidential unless and until the courts find that the allegations (whatever they are) are true and imposes some disciplinary action.  I will be emailing Patricia Finn to ask her for copies of the documents with which she was served.  Mike Adams claims to have seen them, so they must exist.  Anybody want to enter into a friendly wager on whether she will share the documents with skeptics?

A big thanks to Skewed Distribution for the information on these developments.

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Why the Australian Court’s judgment in favor of the Australian Vaccination Network doesn’t bother me

The Supreme Court of New South Wales, Australia, the highest court of that state, has issued a judgment (decision) declaring that the state’s Health Care Complaints Commission (HCCC) had no authority to issue its Public Warning about the Australian Vaccination Network’s (AVN) website.   The HCCC found that the website

  • provides information that is solely anti-vaccination
  • contains information that is incorrect and misleading
  • quotes selectively from research to suggest that vaccination may be dangerous.

After that, the New South Wales Office of Liquor, Gaming & Racing (OLGR) (perhaps my favorite public agency name ever) revoked the licence (spelled the Australian way) of the AVN to engage in charitable fundraising.

The AVN sued, apparently claiming that the HCCC had no jurisdiction, or power, to investigate the complaints against it that resulted in the warning.

A warning of my own before I go any further: I am a U.S. lawyer.  I don’t know a heck of a lot about Australian law.  But both U.S. and Australian law are based on English law, and the Australian judgment seems to be written in a language approximating the English language with which I am familiar.  Therefore, I am going to take a stab at interpreting it.  But don’t rely on my explanations here in the conduct of any of your personal affairs.

I’ve got four reasons why this decision really doesn’t bother me, as much as I hate people who try to turn parents away from vaccinating their children:

Reason # 1:  The court did not find that the AVN was truthful, correct, or unbiased.

The court concluded that the HCCC didn’t have the legal power to investigate the initial complaints against it (which were made by two or three apparently caring citizens).  It did not, in any way, shape or manner whatsoever, find that (1) the complaints were unjustified, (2) the HCCC’s conclusions were incorrect, or (3) that the AVN was justified in doing what it did.  This was a decision based solely on the failure of the evidence to establish some facts that were necessary for the HCCC to exercise its powers.

The key fact that the court said would be necessary for the HCCC to exercise its powers is that a particular person was affected by the AVN’s statements.  The court said that there would have to be evidence that there was an identifiable person who did not receive vaccinations because of the AVN’s statements or actions before the HCCC could act.  The only evidence presented, however, was general information about vaccination rates.

Reason # 2: The decision doesn’t permanently prevent action by the HCCC

I think, then, that if a complainant could show that there was an identifiable person who was unvaccinated because of the AVN’s website, a new complaint making the same allegations could be investigated.  As far as I can tell from what I have read, the complaint doesn’t have to come from the unvaccinated person.  Any resident of New South Wales who hears about a parent who did not vaccinate a child because of what the AVN says should be able to complain to the HCCC and begin a new investigation that avoids this problem.  Hopefully some accurate publicity in New South Wales will result in a new complaint.

And I have seen reports that the HCCC intends to appeal.  It’s too early to tell, or even to rely on a party’s announcement of an intent to appeal so quickly after a court decision.   Frankly, I’m not sure that it’s worth the while of the HCCC to appeal.  I think their resources would be better spent investigating complaints against health care providers.

Reason # 3: The Streisand Effect might actually result in some public education

An often-unforseen consequence of seeking the assistance of courts is that your dirty laundry can become very public, especially as you get to appeals courts, whose decisions are often published and picked up by the media.  The court’s decision will serve to remind the public about the finding by the HCCC against the AVN.  Remember, the court did not say that what the HCCC said was factually wrong.  It just said that the HCCC didn’t have the authority to say anything about the AVN.

The few examples of media reports that I have found seem to be fairly accurate.  They all repeat the HCCC’s finding that the AVN was misleading, and a couple say that the AVN is a danger to public health.  Most seem to accurately report that the court’s conclusion was only that the HCCC didn’t have the authority to issue the statement, not that the HCCC’s conclusions were inaccurate in any way.  The Sydney Morning Herald article even starts and ends with strong statements about the AVN’s nonsense and the resulting danger to public health.

Overall, I think–or maybe I’m just hoping here–that the court decision will only serve to impress upon the public that the AVN is not to be trusted.

On the other hand, doctors, scientists, skeptics, and public health officials ought to be careful about talking about the AVN too much, lest they inadvertently lead the public to the misleading information.

Reason # 4: AVN still can’t raise funds

Perhaps most importantly, the court declined to enter any order affecting the OLGR’s revocation of AVN’s license to raise funds.  (A personal appeal on a grammatical pet peeve of mine: please avoid using the “word” fundraise.)  The OLGR’s database shows that AVN’s license is still “expired,” so AVN can’t legally raise funds.  And it can’t accept any new members.  That might stop it from doing anything too bad.  It’s website seems to have been updated last in 2010 (except for what appear to be automatic displays of tweets), and the “News” page only has news up to 2008.

Other commentary on the decision

Thanks to The Drunken Madman, Jason Brown (Twitter: @drunkenmadman), for leading me to the decision itself so that I could read it.  The decision itself was posted by Dave the Happy Singer before the court posted it.  Both of their posts are definitely worth reading.

I was happy to see that another post by The Drunken Madman pointed to a portion of the decision that caused me to chuckle.  The decision basically said that there was no evidence that, as hard as the AVN tried, there was no evidence that it was successful in changing anyone’s mind about vaccination.

Lastly, if you want to keep up with this, The Drunken Madman (he really has to cut down on his bad habits) has started a wiki of info relating to the decision.

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Can parents be liable for falsifying vaccination records?

Todd W. of Harpocrates Speaks asked me and Popehat (my favorite law-related blog) to comment on a heartwarming story that he posted on his blog. Popehat said that it wasn’t his area of law, and that he’d have to research it. Unlike Popehat, I have no qualms about recklessly stabbing in the dark to come up with comments on something in which I have little expertise and on which I have done little research. To be fair to myself, though, I actually have some expertise in child abuse and neglect, and I currently work in a position where I deal with a very wide variety of legal topics.

So the story goes like this: A couple of months ago, at a day care far, far away (Todd does not say where), four children came down with chicken pox. Three of the children were above the age for vaccination, and one 6-month-old child, too young to be vaccinated, also came down with the disease. Two women on the staff at the daycare were pregnant, putting them and their unborn children at risk, especially since one of them did not know if she had been vaccinated against the disease.

Apparently, the day care required that all children be immunized, and the parents of the infected children had reported that the children were immunized, even providing documentation of the vaccinations. Todd says that the parents “faked” the vaccination records of their children to get them into the daycare, and that the daycare was not too careful about verifying the records.

A commenter then asked, “Could there be some kind of legal action taken against the parents who faked the immunization record?” We’ll take a look at criminal and civil liability here. I’m going to limit my answer to the question that was asked, which focuses on the faked immunization record. For an examination of the possible liability that parents face for failing to immunize their child if the child then gets sick and infects someone else, see Jann Bellamy’s post on Science-Based Medicine a year and a half ago.

Because laws differ from state to state in the U.S., I’m going to have to discuss this very generally, especially since Todd wouldn’t say where the day care was. Lawyers reading this will probably be saying to themselves, or shouting out loud, “No! Wrong! That’s not the whole story!” I know; I’m trying to simplify things here. As always, don’t take what I’m saying as legal advice.  If you face a similar situation yourself, go see a lawyer.

Civil Claims

The tort, or private/civil wrong, that the parents may be liable for is intentional misrepresentation or fraud. To win a case for intentional misrepresentation or fraud, the plaintiff basically has to prove that the defendant knowingly made a false statement for the purpose of getting the listener/reader of the statement to rely on it, that the listener/reader reasonably relied on the statement, and that the listener/reader suffered some harm/injury to person or property as a result.

I think that here the day care, but not other parents or day care staff, may have a shot at winning on a fraud claim against the non-vaccinating parents. The facts that we have say that the parents knowingly made false statements–the false documents showing vaccination–to the day care that their children were vaccinated. They did it in order to have the day care accept their children into the program. If the fake documents were realistic enough, then the day care probably reasonably relied on the statements. If the day care suffers any loss as a result, they should be able to recover those damages from the parents. To tell the truth, I can’t really imagine that the day care would suffer much loss from this. Perhaps they would have to hire subs for sick workers, or will be liable to the parents of any other kids who contracted the infection, but I doubt it (for reasons that I don’t have time to get into here). The day care would not be liable in any lawsuit by its workers; workers’ compensation laws would cover any illnesses or injuries by the workers and the day care would be immune from suit by its employees.

I don’t think that the parents would have any liability to other parents for the false statements, because the parents didn’t make any statements to the other parents. They made the statements only to the day care.

I can’t think of any other basis for a lawsuit by anyone for the parents’ act of falsifying the vaccination documents. If anybody has any other ideas, I’d love to hear them.

Criminal liability

Again, it depends greatly on what state we’re in whether the parents might have committed some crime here. State laws are surprisingly different when it comes to crimes. Just for fun, I randomly picked a few states and took a quick gander (I mean a casual look, not a fast male goose; I would never steal a goose) at their criminal laws to see if there was anything I could find.

The type of crime I was looking for was fraud or criminal misrepresentation of some sort, perhaps including forgery offenses. I’m sure that the vaccination documents are not sworn, so I didn’t bother to check for perjury offenses.

New York, in section175.05 of its penal law, defines the crime of “falsifying business records in the second degree” to include when a person, “with intent to defraud . . . [m]akes or causes a false entry in the business records of an enterprise.” From the definitions earlier in the penal law, I think the day care would be an “enterprise,” and I think the parents might be liable for “causing” the false entry in the day care’s records.

I couldn’t quickly find any applicable fraud crime in Illinois.  All of the Illinois fraud crimes that I could find involve financial fraud.

Colorado Revised Statues section 18-5-104 says,”A person commits second degree forgery if, with intent to defraud, such person falsely makes, completes, alters, or utters a written instrument” that is not specifically covered by statutes defining other kids of fraud.

The New York and Colorado statutes could be used to prosecute parents who falsify vaccination records.  In other states, like Illinois, there may be no law that specifically prohibits falsifying that kind of document.

I’d be surprised if any prosecuting attorney would take this kind of case.  I could not find any news article of a parent being charged for fraud involving a vaccination record.

Conclusion

As much as I hate to say it, it appears unlikely that the parents who falsified the vaccination records will face any real legal consequences from their fraud.  I can only hope that some brave prosecutor realizes the risk to public health that these parents created and charges the parents accordingly–if they live in a state that has laws that prohibit this kind of fraud in the first place.

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Del Monte engages in legal thuggery against government scientists

When the mafia makes threats, it doesn’t pretend that what it is doing is legal.  Del Monte Fresh Produce, however, apparently likes to pretend that the law is on its side when it engages in thuggery.

For those of you who haven’t heard, Del Monte has sued the FDA after the FDA determined that Del Monte cantaloupes, which are imported from Guatemala, were contaminated with salmonella, and ordered that cantaloupes from Guatemala no longer be imported, at least temporarily.  (Speaking of the mafia, wasn’t there a famous mafioso named Sal Monella?)  Del Monte agreed to a voluntary recall of the product

Del Monte, apparently not satisfied with trying to reverse the official government action, has also threatened to sue an Oregon state epidemiologist for its role in investigating the salmonella outbreak.

The suit against the FDA

In its suit against the FDA (complaint), Del Monte claims that the FDA had insufficient evidence to conclude that cantaloupes, or cantaloupes from Guatemala, were the source of the illnesses.  It claims that the FDA never tested any cantaloupes, and in fact had recently inspected the farm in Guatemala and had not found any salmonella there.  Among its other claims were that one infected  patient denied having eaten cantaloupes, that the retailer who sold the cantaloupes had also sold non-Del Monte cantaloupes, and that contamination may have occurred at the retailer.

Del Monte’s legal claims were that the FDA acted outside of its legal authority, and that it acted based on “rules” that were internal policies that had not been properly subjected to the required public notice and comment period.

I don’t have a problem with the suit against the FDA, which is a request for a court order declaring the FDA’s order illegal, voiding it, and preventing the FDA from enforcing it.  It is perfectly appropriate for a company to seek review by a court of an administrative agency’s judgment and factual findings.  Indeed, Congress has created an entire procedure for review of most government actions, although Del Monte did not use that procedure in this case (I’m not sure why, although it may be that legally that procedure is unavailable to Del Monte in this case).

The threat against Oregon officials

Del Monte has also threatened to sue Oregon officials, including its public health department and an individual epidemiologist in that department.  Although the newspapers describe Del Monte as having made a “threat,” it appears to me that the document was probably a formal notice of a possible lawsuit.  In most, if not all, states, before you can sue the government or a government official, you have to give the government or official notice–often very quickly, like in a matter of a few months–that you are going to do so.  Many times, even after a notice is served, no suit is filed.  We don’t know whether Del Monte will end up suing.

From all reports, it appears that Del Monte is asking for monetary compensation from Oregon for its actions.  It’s not clear exactly what action Oregon took, other than investigating for the FDA and maybe reporting its findings to the FDA.

I don’t necessarily have a problem with the notice, because many times people serve these notices just to preserve rights and to give themselves some time to think about whether to sue.

If Del Monte decides to sue, I will have a huge problem with it.  Scientists who are protecting public health need to be able to do their work without the specter of a lawsuit hanging over their heads.  It’s unlikely that an individual who gets sick will sue an epidemiologist for missing some contamination, and the epidemiologists will therefore be subconsciously biased in favor of food suppliers, who have the resources to sue.

Even if Del Monte is not successful, just putting the epidemiologists through the emotional turmoil of a lawsuit would be enough to affect their judgment in the future.

Fortunately, if Del Monte does file its lawsuit, it appears to have extremely little chance of succeeding.  Government agencies and officials are protected by sovereign, or governmental, immunity for many actions, including (and especially) actions that involve their discretion and professional judgment.  The laws protecting governments from lawsuits for such acts were enacted to prevent the very situation that Del Monte might cause: making government agents afraid to do their jobs, thereby endangering the public.  Public officials owe their duties to the public, and not to individual companies or people.

Like with many other things, I think Del Monte would be better off staying the shadows until this all blows over.  If it does sue government officials who are trying to prevent consumers from getting seriously ill, it will, in my view, seriously hurt its own reputation and any trust that the public has in it.

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More lessons, this time from the California Science Center

The First Amendment is often inconvenient. But that is besides the point. Inconvenience does not absolve the government of its obligation to tolerate speech.
–Justice Anthony Kennedy (1936 – )

This is going to be a quick post, at least for now, due to my time limitations.

Yesterday, the California Science Center (CSC), a public institution and affiliate of the Smithsonian Institution, settled a lawsuit against it filed by the American Freedom Association (AFA). AFA had claimed that CSC had breached a contract for AFA’s rental of CFC’s IMax theater to show a pro-intelligent-design film. CSC claimed that AFA breached the contract first by falsely publicizing, through the Discovery Institute, that the event was sponsored or endorsed by CSC. AFA, in turn, claimed that it had no control over the Discovery Institute’s publicity of the event. More importantly, AFA claims that the CSC cancelled the showing because of the content of the film, and that it therefore violated AFA’s First Amendment rights.

I can’t express an opinion on the lawsuit itself, since I have not seen any of the court documents, the original rental agreement, the discovery from the lawsuit, or the publicity that was allegedly a breach of the contract. But I do want to correct some misperceptions and answer some questions raised in PZ Meyers’s excellent post (does he have any other kind?) on the topic, and in the comments to that post.  I will add links and references tonight, time permitting.  [Update: I don’t have the time tonight, but I have made some minor edits.]

Pseudo-scientists have just as much right to speak out as skeptics do. The first comment to PZ’s blog suggests that the CSC should simply not rent to organizations like the AFA. That, however, would be a blatant First Amendment violation. If a government institution makes space available to outside organizations to engage in speech, it cannot pick and choose arbitrarily what kinds of organizations it will rent to. There are two levels of First Amendment analysis here. The first level looks at the ability (or inability) of a government organization to choose what it would allow to be shown based on the subject matter of the speech. For instance, if the CSC has made a clear policy that it will only rent its theater to organizations showing films relating to science, it will likely be able to successfully defend any claim that it must require a knitting club to show the movie, “How to Knit a Killer Sweater.” If, however, the CSC simply made its theater available to all non-profits, then it can’t later choose to exclude a film on abortion because it’s squeamish about the subject.

The second level looks at the ability of the government organization to choose the organizations to which it will rent based on the viewpoint of the speech. Another commenter on PZ’s blog asks whether “what Luskin [the Discovery Institute’s lawyer] says about the First Amendment (i.e. that it “forbids government preference for one viewpoint over another”) sound like complete shite…?” No, it’s not baloney. It’s entirely accurate. The worst thing a government institution can do is discriminate on the basis of viewpoint. The CSC cannot say, “We’ll rent to films explaining evolution but not to films arguing against evolution.” Can it refuse to show any films about evolution? Maybe, given its ability to regulate the subject matter to some extent, but if it starts to make policies excluding only controversial science subjects, then the courts will question their purpose in making those policies, and if the intent was to suppress speech with which the CSC did not agree, then the courts may require the CSC to change its policies.

PZ himself asks in the comments,

You can’t have a general license agreement that spells out a list of things you will intentionally discriminate against, without discriminating. I wonder, though, if there aren’t models for exclusion that could be used. If the KKK asked to lease the IMAX theater, would they do so?

Again, this depends on the policies and the purposes behind those policies. If the KKK wanted to show a film arguing that there is scientific evidence that people of African descent have inferior intellect, and the CSC’s policies state that it will rent out the theater to organizations showing films on scientific subject matter, then the CSC would likely have to rent the theater to the KKK. There are “models for exclusion,” as PZ puts it. Public libraries around the country deal with this kind of problem (limiting the use of meeting rooms) all the time, and the American Library Association has some guidance for libraries on its website.

One commenter answers PZ by saying,

KKK is classified as a hate group so if fits into an entirely different legal area.

Obviously, the fix for this is to get these creationist groups categorized as hate groups. Then the museum would be legally backed up in saying they don’t want to associate with homophobic, patriarchal, lying bastards.

Well, not quite.  There is no such legal “category” as “hate groups.”  There are things called hate crimes, but the key is that whatever you’re doing has to be a crime in the first place.  Then the sentence or penalty can be enhanced if your motive was “hate.”  In other words, if you just beat the crap out of someone for fun, then you may only serve up to five years in jail.  But if you beat the crap out of them because they’re gay, then you may spend up to ten years in jail.  But the government can’t treat someone differently just because the person hates gays.

Many comments make the point that the CSC should have allowed the AFA to show the film, but engaged in its own speech to counter the message presented by AFA.  Some commenters suggested holding a lecture before or after AFA’s film, or putting up posters around the theater, or otherwise publicizing that the event was not sponsored or endorsed by the CSC.  I couldn’t agree with these comments more.  People much smarter than I have recognized that the marketplace of ideas will take care of itself.  The best way to counter speech with which you do not agree is to engage in more speech.

Speaking of more speech, I’ll post more later.  I’ve got to get back to work now.

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Court’s application of science of eyewitness identifications: Close but no cigar

 “[T]here is almost nothing more convincing [to a jury] than a live human being who takes the stand, points a finger at the defendant, and says ‘That’s the one!’”

–Justice William J. Brennan

I feel the frustration that many scientists report when they read media accounts of scientific studies.  I have finished reading all 132 pages of the New Jersey Supreme Court’s decision yesterday discussing eyewitness identification testimony, that is, eyewitnesses identifying a particular person as being the one whom they saw committing, or at the scene of, the crime.  The New York Times described the decision as issuing “sweeping new rules,” and Scientific Amercian said that the decision was an indication that “the courts seem to be finally catching up with the science.”   But a careful reading of the decision shows that there will be little effect on the admissibility of eyewitness identification testimony in New Jersey.

After two and a half years of careful study and debating, and a ten-day hearing before a special master at which over 200 scientific studies were admitted and seven expert witnesses testified,  the New Jersey Supreme Court determined that there were serious problems with the existing system of determining whether an eyewitness’s identification of a suspect is admissible in a criminal trial and, if it’s admissible, whether expert testimony and jury instructions on its reliability should be provided.  In fact, the court said, as courts and even law enforcement agencies have recognized before, eyewitness misidentification is the leading cause of wrongful convictions across the country.  Nationwide, “more than seventy-five percent of convictions overturned due to DNA evidence involved eyewitness misidentification.”

After finding that the current system was inadequate, the court carefully considered the factors that lead to misidentification, and established a better, but still far from perfect, system of filtering out unreliable eyewitness identification.  After I summarize the opinion, I will describe my concerns with it.

The “current” system

New Jersey’s now-former system, which is similar to other states’ systems, worked like this: The defendant brought to the court’s attention some evidence that the police, in getting an eyewitness to identify the defendant as the perpetrator, were “suggestive” to the witness during the process.  If the court determined that the process was impermissibly suggestive, then, before the state could have the eyewitness identify the defendant as the perpetrator at the trial, the state had to prove to the judge “that the identification[] . . . had a source independent of the police-conducted identification procedures.”  The court used the following five factors in making that determination:

  1. the “opportunity of the witness to view the criminal at the time of the crime”;
  2. “the witness’s degree of attention” to the crime and the perpetrator;
  3. “the accuracy of [the witness’s] prior description of the criminal”;
  4. “the level of certainty demonstrated at the time of the confrontation”; and
  5. “the time between the crime and the confrontation.”

This system, the court astutely noted, “overstate[d] the jury’s inherent ability to evaluate evidence offered by eyewitnesses who honestly believe their testimony is accurate.”  The court described the recent research showing that juries are overly impressed with witnesses who express confidence in their testimony.  The Court said:

We presume that jurors are able to detect liars from truth tellers. But as scholars have cautioned, most eyewitnesses think they are telling the truth even when their testimony is inaccurate, and “[b]ecause the eyewitness is testifying honestly (i.e., sincerely), he or she will not display the demeanor of the dishonest or biased witness.”

The first sentence of that quotation stands in stark contrast to the rest of the opinion in that it provides no scientific basis for its assertion.  (When you don’t have the science, just “presume”!)  I’m pretty sure I remember hearing about recent studies indicating that people can’t tell liars from truth tellers.  But given the shortcomings of human memory, of which this opinion reminded me, I could be wrong about that.  I’ll update this blog post if I can find links to studies showing that people cannot spot a liar.

But the key to this, as the court noted, is that the eyewitnesses don’t realize that their testimony is inaccurate.  Even if they are being honest, the witnesses will be falsely confident, and the jurors will believe them.

The current law is based on a United States Supreme Court case from 1977, Manson v. Brathwaite.  That’s 34 years ago, for those of you without calculators handy.  In the 1970’s, however, there were only four published studies on eyewitness identification, according to the experts who testified in front of the special master.  The research has picked up exponentially since then, though; in the last 30 years, there were over 2000 studies on the subject, according to the special master.  From all of those studies, though, one has to wonder why it took this long to get to this point.

The court gave credit to the New Jersey Attorney General’s office, which, in 2001, had adopted “best practices” for administering lineups, but questioned the office’s position that a failure to follow the guidelines should not result in the inadmissibility of the identification.  (Compare that to the rule that a failure to give Miranda warnings when they are required does result in any statements made by the defendant being inadmissible.)  The court said that the Attorney General’s guidelines were inadequate.

The court decided that given the current science, something had to be done.

The court’s examination of the science

The court undertook a thorough and careful examination of the science, including an analysis of its reliability.   The court determined that the scientific community was in agreement on most of the factors that affect eyewitness identifications.   It discussed the manner in which many of the studies were conducted, and noted that many were double-blinded, controlled laboratory experiments, but others were “real-world” experiments or data analyses.  It recognized the importance of peer review to science, and described the agreement among the experts who testified before the special master.

I won’t go into the descriptions of the specific studies and findings specifically, but that section of the opinion is a good read.

The court then made specific findings as to several factors that the studies described that lead to reliability, or unreliability, of eyewitness identifications.  Those factors were divided into two types: “system variables” and “estimator variables.”  “System variables” are those arising from the process law enforcement uses to obtain the identification from the witness.  “Estimator variables” are “factors related to the witness, the perpetrator, or the event itself — like distance, lighting, or stress — over which the legal system has no control.”

The court made the following findings as to the “system variables”:

  1. The identification “may be” unreliable if the lineup is not administered by a blinded administrator.  In other words, the police officer asking the witness to identify which picture in a lineup was the suspect should not know which picture is the suspect (or even if the suspect’s picture is among the pictures in the lineup).
  2. Pre-lineup instructions are necessary to inform the witness that the suspect may not even be in the lineup, and that the witness should not feel compelled to select one of the pictures.  Without these instructions, witnesses may choose the “best” match to their memory, which will lead to an unreliable identification.
  3. The witness’s choice in a lineup is unreliable unless (a) the pictures are taken and arranged such that the suspect does not stand out; (b) there is a minimum number of “fillers,” or known non-suspects, in the lineup; and (c) the lineup features only one suspect.
  4. “Information received by witnesses both before and after an identification can affect their memory. Confirmatory feedback can distort memory. As a result, to the extent that the witness’s confidence in his or her choice may be relevant in certain circumstances, it must be recorded in the witness’ own words before any possible feedback.”  (But if the administrator is blinded, feedback would be impossible anyway.)
  5. Viewing a suspect more than once during an investigation can affect the reliability of the later identification.  Successive views of the same person can make it difficult to know whether the later identification stems from a memory of the original event or a memory of the earlier identification procedure.
  6. The evidence is insufficient to express any preference between simultaneous lineups, in which the pictures are all shown to the witness at once, or sequential lineups, in which the witness views one picture at a time.
  7. Composite drawings, whether created by a sketch artist or computer, “produce poor results.”  “It is not clear, though, what effect the process of making a composite has on a witness’ memory — that is, whether it contaminates or confuses a witness’ memory of what he or she
    actually saw.”
  8. “Showups,” in which only the suspect is shown to the witness, without any “filler” non-suspect pictures, are inherently unreliable unless they are performed within a couple of hours after the crime.

The court then analyzed the “estimator” variables as follows:

  1. Even under the best viewing conditions, high levels of stress can diminish an eyewitness’ ability to recall and make an
    accurate identification.
  2. “When a visible weapon is used during a crime, it can distract a witness and draw his or her attention away from the culprit. ‘Weapon focus’ can thus impair a witness’ ability to make a reliable identification and describe what the culprit looks like if the crime is of short duration.”
  3. “[T]he amount of time an eyewitness has to observe an event may affect the reliability of an identification.”
  4. “[A] person is easier to recognize when close by, and that clarity decreases with distance.  We also  know that poor lighting makes it harder to see well. . . . Scientists have refined those common-sense notions . . . .”
  5. Being older or under the influence of drugs, or both, “can affect the reliability of an identification.”  Additionally, witnesses are better at recognizing people of their own age than people older or younger than they are.
  6. A perpetrator’s changes in appearance, or disguises worn during the crime, can affect a witness’ ability to remember and identify a perpetrator.  “Disguises as simple as hats have been shown to reduce identification accuracy.”
  7. “Memories fade with time.”
  8. Witnesses have more trouble identifying persons of a race different from their own.
  9. Witnesses’ exposure to opinions, descriptions, or identifications by others relating to the crime or the perpetrator can affect the accuracy of an identification.
  10. Laboratory results are mixed as to whether an identification is more reliable the sooner after a crime it is made.

The Court then examined studies that attempted to determine whether the public and prospective jurors had accurate perceptions of the science relating to eyewitness identifications.  The court concluded that there was no definitive proof regarding what jurors know, but that generally “people do not intuitively understand all of the relevant scientific findings.”


The new rules

The court ended by setting out new rules, and a new system, for determining whether an eyewitness identification is reliable enough to be presented to a jury, and for instructing the jury how to analyze any eyewitness identification.

The court gave a step-by-step guide to its new procedure:

First, to obtain a pretrial hearing, a defendant has the initial burden of showing some evidence of suggestiveness that could lead to a mistaken identification. . . .  That evidence, in general, must be tied to a system — and not an estimator — variable.

Second, the State must then offer proof to show that the proffered eyewitness identification is reliable — accounting for system and estimator variables — subject to the following: the court can end the hearing at any time if it finds from the testimony that defendant’s threshold allegation of  suggestiveness is groundless.

Third, the ultimate burden remains on the defendant to prove a very substantial likelihood of irreparable misidentification. To do so, a defendant can cross-examine eyewitnesses and police officials and present witnesses and other relevant evidence linked to system and estimator variables.

Fourth, if after weighing the evidence presented a court finds from the totality of the circumstances that defendant has demonstrated a very substantial likelihood of irreparable misidentification, the court should suppress the identification evidence. If the evidence is admitted, the court should provide appropriate, tailored jury instructions . . . .

If some actual proof of suggestiveness remains, courts should consider the above system variables as well as . . . estimator variables to evaluate the overall reliability of an identification and determine its admissibility. . . .

The court rejected an approach recommended by the special master that would have been more favorable to defendants.  That approach would have allowed the defendant to use both system and estimator variables to obtain the pretrial hearing.  The court reasoned that (1) a court would not likely suppress an eyewitness identification solely because of estimator variables (what is “too dark” to see a suspect?); (2) courts cannot affect estimator variables; (3) “suggestive behavior can distort various other factors that are weighed in assessing reliability[, which] warrants a greater pretrial focus on system variables”; and (4) with the recommended approach, there would be a lot more pretrial hearings, and those hearings would be more “intricate,” and that’s just too much of a pain in the ass.  (OK, that last clause is my phrasing, not the court’s.)

The court then stated that instructions to juries in criminal cases should be uniform and should explain the relevant factors that effect the reliability of the identifications.  It asked a committee to draft proposed revisions to the state’s model jury instructions, which the court will review.  The court will then adopt new standard instructions (which may be modified in each case to fit the case’s specifics).

The shortcomings of the new system

Although this is a good start, I don’t consider it a major breakthrough or vast improvement over the past, for several reasons.  First, the procedure for the judge’s review of the eyewitness identification before it gets to the jury gives short shrift to the science.  After discussing how unreliable eyewitness testimony is, the court still requires the defendant to show some suggestiveness in the administration of the lineup (the “system variables”) in order to even have the court begin to consider whether the eyewitness testimony might be reliable.   This can mean that the state may be able to have admitted into evidence the testimony of a witness where the science says that it is very unlikely that the testimony will be reliable, as long as the lineup was performed correctly.

As an extreme example, if a witness was on the 20th floor of a building 200 feet from a crime on the street, at night, and the perpetrator was wearing a ski mask, but then in a well-run lineup the witness identifies the suspect as the perpetrator, the court’s decision leaves no procedure for the defendant to challenge the reliability or admissibility of the eyewitness identification.  Only after the eyewitness has pointed to the defendant in the courtroom and said to the jury, “That’s the guy!” will the defendant be able to cross-examine the witness to attempt to show the unreliability of that testimony.

This procedure is at odds with the science that holds that the eyewitness identification is likely unreliable to begin with, whether or not there is some lineup and whether or not any lineup is performed using the most recent science.

Second, the procedure puts the ultimate burden on the defendant to show that the identification is unreliable.  In fact, the court requires the defendant to show “a very substantial likelihood of irreparable misidentification.”  One has to wonder how a misidentification would ever be repaired given the science that (1) memories get worse, not better, with time, and (2) outside influences on a person make memories less reliable.  If eyewitness identification is as troublesome as the court describes, and if it has caused so many wrongful convictions, then how does the court justify what boils down to a presumption that the eyewitness testimony is reliable?  Shouldn’t it be up to the state to show that the identification is reliable before it is admissible?

Third, and perhaps most telling, is this statement by the court:

We also expect that in the vast majority of cases, identification evidence will likely be presented to the jury.   The threshold for suppression remains high. Juries will therefore continue to determine the reliability of eyewitness identification evidence in most instances, with the benefit of cross-examination and appropriate jury instructions.

In other words, not much will change.  Oh, the juries may hear from the judge all about how the eyewitness identification may be affected by all of these factors, but the opinion does not cite any science that shows that the jury instructions will have the desired effect of accurately weeding out unreliable eyewitness identifications.   I doubt that the jury instructions will undo the scientifically-proven effects of a confident witness’s testimony that the guy sitting at the defense table was the one whom the witness saw stab that poor old lady who was just minding her own business.

Conclusion

Don’t get me wrong; I’d rather be a defendant under the new system than under the old, and I’d rather be a member of the society that uses the new rules than the old.  I wouldn’t say, for instance, that this opinion stinks like the stretch of the New Jersey Turnpike that goes through the City of Elizabeth.  (Sorry, had to work that in somewhere.)  I also have the give the court credit for acknowledging that the science will continue to change, and that the police and the courts must adapt to that change.

I just think the court was a little wimpy in adopting its new procedures, and that the new procedures don’t effectively resolve the problems with eyewitness identification testimony that the court has raised.  After all, as the court said, ” At stake is the very integrity of the criminal justice system and the courts’ ability to conduct fair trials.”

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Quickie News: Town gets sued for banning psychics

This post introduces a new feature of this blog: “Quickie News.”  Because I’m a lawyer and have to be precise with my language, I should explain that by “Quickie News” I mean a very brief post to inform my readers of some science/skeptical/legal news when I don’t have time for a lengthy, explanatory post.  I don’t mean news about couples engaging in short-lived coitus.

For some of the Quickie News posts, I’ll try to write a full, explanatory post later on.  I may, as I will do here, add a “quickie analysis” just to get things going.

The honorable subject of my first Quickie News is the town of Hattiesburg, Mississippi, which is being sued for prohibiting psychics from plying their trade within the town limits.

Quickie analysis: The psychics have a good case, especially as to the “prior restraint” on their speech.  It’s almost impossible for the government to legally prohibit (enjoin) speech before it happens, as was famously described in the Pentagon Papers case.  Authorities would have a much better shot at charging the psychics with a crime or violation of their state’s unfair trade practices law, if they have one.

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