We started the Yolo Judicial Watch project at the beginning of this year believing that there were fundamental problems in the Yolo County Judicial System. Having observed and attended hearings and trials for nine months now, if anything, I think things are a lot worse than I had envisioned.
I think it is important to remember however, that these problems are often not exclusive to Yolo County. That can provide comfort or disquiet. I hear that point all of the time, in response to articles that these individuals were convicted by a jury. I understand that point of view, but I think even a jury finding must be treated with some skepticism. Two recent studies may even suggest that they should be treated with alarm.
What really ought to alarm people is that most of the cases, where we now know the convicted defendant was innocent, have exonerations based simply on DNA evidence, and DNA evidence only exists in a small percentage of cases. That would suggest the number of wrongly convicted people is far higher than what we have discovered so far.
The Times reports, “At trial, the jury heard details that prosecutors insisted only the rapist could have known, including the fact that the rapist hit the 75-year-old victim in the head with the handle of a silver table knife he found in the house. DNA evidence would later show that another man committed the crime.”
“I beat myself up a lot” about having confessed, Mr. Lowery told the Times in a recent interview. “I thought I was the only dummy who did that.”
The Times reports that at least 40 others have confessed since 1976, where DNA evidence has later shown the confessions to be be false, according to research by Grandon Garrett, a law professor at the University of Virginia.
Professor Garrett has an article that demonstrates how various incriminating facts can get into confessions, leading the police and prosecutors to conclude that the individual knew facts only the individual at the crime scene could know. Often the police were the ones who introduced these facts. Sometimes they were unintentional, other times they appear intentional. Sometimes, they even introduced facts that turned out to be false, and they still were not caught.
Professor Garrett writes, “Scholars increasingly examine the psychological techniques that can cause people to falsely confess and document instances of known false confessions. This article takes a different approach, by examining the substance of false confessions, including what was said during interrogations and how the confession statements were then litigated at trial and postconviction. Doing so sheds light on the phenomenon of confession contamination. Not only can innocent people falsely confess, but all except two of the exonerees studied were induced to deliver false confessions with surprisingly rich, detailed, and accurate information.”
“We now know that those details could not have likely originated with these innocent people, but rather must have been disclosed to them, most likely during the interrogation process,” the Professor continues. “However, our constitutional criminal procedure does not regulate the postadmission interrogation process, nor do courts evaluate the reliability of confessions.”
According to the Times article, the new research is opening eyes of defense lawyers. “In the past, if somebody confessed, that was the end,” said Peter J. Neufeld, founder of the Innocence Project, to the Times. “You couldn’t imagine going forward.”
The notion that such detailed confessions might be deemed voluntary because the defendants were not beaten or coerced suggests that courts should not simply look at whether confessions are voluntary, Mr. Neufeld told the New York Times. “They should look at whether they are reliable.”
Professor Garrett told the NY Times he was surprised by the complexity of the confessions he studied. “I expected, and think people intuitively think, that a false confession would look flimsy,” like someone saying simply, “I did it,” he said.
Instead, he said, “almost all of these confessions looked uncannily reliable,” rich in telling detail that almost inevitably had to come from the police. “I had known that in a couple of these cases, contamination could have occurred,” he said, using a term used in police circles for introducing facts into the interrogation process. “I didn’t expect to see that almost all of them had been contaminated.”
Professor Garrett’s study found that more than half were mentally disabled, under 18, or both. None of these individuals had a lawyer present, which ought to be a regulation necessary for a confession. About half of them were taken to the crime scene.
One of the scary findings is that eight of the defendants in Professor Garrett’s study were actually cleared before trial by DNA evidence, and yet convicted anyway.
The Times cites the example of an individual who spent 16 years in prison for a murder in Pennsylvania. Writes the Times, “prosecutors argued that the victim may have been sexually active, and so the DNA evidence may have come from another liaison she had. The prosecutors asked the jury to focus on Mr. Deskovic’s highly-detailed confession and convict him.”
Steven A. Drizin, the director of the Center on Wrongful Convictions at the Northwestern University School of Law, stated to the New York Times in their article that the significance of contamination “could not be understated.” “While errors might lead to wrongful arrest,” he told the Times, “it’s contamination that is the primary factor in wrongful convictions. Juries demand details from the suspect that make the confession appear to be reliable — that’s where these cases go south.”
“Jim Trainum, a former policeman who now advises police departments on training officers to avoid false confessions, explained that few of them intend to contaminate an interrogation or convict the innocent,” The Times reports. “You become so fixated on ‘This is the right person, this is the guilty person’ that you tend to ignore everything else,” he said. The problem with false confessions, he said, is “the wrong person is still out there, and he’s able to reoffend.”
According to the article, Mr. Trainum argues in favor of videotaping entire interrogations. “Requirements for recording confessions vary widely across the country. Ten states require videotaping of at least some interrogations, like those in crimes that carry the death penalty, and seven state supreme courts have required or strongly encouraged recording.”
But I would argue that unless the prosecutors and jurors are versed in such expertise, that might not be enough. The scary thing to an expert like Professor Garrett is that he said that almost all the confessions look reliable. If that is the case, then a videotape may not be enough.
That puts tremendous pressure on the Prosecutor, the Juror and the defense attorney. To me it seems logical to put protections into a confession and require the presence of an attorney who would be able to prevent a false confession.
That leads to a separate problem, one that the Innocence Project examines in their analysis of their first 255 DNA-exonerated cases. Their report argues that a huge problem is one of ineffective counsel.
“The Supreme Court has established that all Americans have the right to effective assistance of counsel. This right to effective counsel places a necessary heavy financial responsibility on states and local counties to create and sustain a working system for representing indigent defendants,” writes Dr. Emily West, Director of Research for the Innocence Projection in a study released in September 2010. “Unfortunately, the lack of national standards for creating and funding such a system has left most states with inadequate, underfunded systems. This problem has led to overburdened and sometimes incompetent defense lawyers and a lack of funding for the investigative process, all of which can contribute to inadequate defense, and in some cases, wrongful convictions.”
She goes on to argue that the standard set by the courts has created a very high burden to allow the defendant to establish ineffectiveness in that “the counsel’s representation must fall below an objective standard of reasonableness, and there must be reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
“Review studies of post-conviction appeals have demonstrated that ineffective assistance of counsel is the most commonly raised issue. One study by NCSC, reviewing Habeas Corpus claims, found that while nearly half of the stated claims involved allegations of ineffective assistance of counsel, only eight percent found relief,” she continues.
“DNA-exoneration cases offer a unique perspective on this issue, given that we know the clients in these cases were convicted of crimes they did not commit. However, as this review will demonstrate, DNA exonerees do not seem more likely to find relief on this claim than those in the larger prison population. A review of published appeals among the DNA exonerations reveals that 54 exonerees (about 1 in 5) raised claims of ineffective assistance of counsel and courts rejected these claims in the overwhelming majority of cases,” she concludes.
In their analysis of the cases, problems included failure to present defense witnesses; failure to seek DNA testing; failure to object to prosecutor arguments or to evidence introduced by the state; and failure to interview witnesses in preparation for trial or to cross examine state witnesses. Other problems suggest conflicts of interest, failure to seek experts and failure to investigate.
One of the problems we have noted previously is the relative lack of resources that indigent defense receives, compared to the prosecutor’s office. In our previous report on this matter we found a 3:1 spending advantage for the DA’s office and also an advantage in terms of the number of investigators. Yolo County is probably better off than a lot of other counties in terms of indigent defense, but the caseload in Yolo County is probably still too high.
Both of these studies rely on DNA evidence to provide proof of innocence. The concern has to be that if we are finding this many mistakes in such cases, how many other cases are there that will not have DNA to exonerate.
Some have suggested that what I am seeking is perfection. What I am seeking is to mitigate the possibility that innocent people are incarcerated due to correctable and careless mistakes, on the part of various portions of our legal system designed to prevent those very mistakes.
We have a legal system that allows evidence based on expertise and sciences that really have not been tested. A confession is one example. As I’ve mentioned, there was a special on CNN a few years ago that indicated that many of the forensic science analyses that have been popularized on television shows have no actual basis in science. They have not been tested in scientifically approved, blind tests to determine their reliability and validity.
One such example is bullet-lead analysis, which is completely false but was often used to tie bullets to a particular weapon, out of the assumption that there was a unique quality that could track where the lead came from. Turns out, no basis for that. But that was used for years as scientific and physical evidence.
We rely on eyewitness identification and testimony, even though through psychology we know that such testimony and identification are unreliable at best. And yet, we still rely on it.
And now we know that we probably should not take confessions to mean anything more than basic evidence that may or may not indicate actual guilt or innocence. We have shown in cases where DNA evidence exists that it can be false. But how many people are in prison based also on false evidence?
As someone with a background in methodology and empirical research, I am often amazed by how little research informs assumptions that are made during trials. There is enough research to cast doubt on eyewitness testimony, confessions, and even at times forensic science. The latter is supposed to be based on science, but apparently some of the methods have never been adequately tested.
The argument is made here by some, that by creating a higher standard, more crimes will be committed. I do not know that there is scientific evidence to prove that. If you end up putting a lot of innocent people in prison and allow the actual perpetrators free to commit other crimes, then are you really helping things?
We now know that in Texas a man was put to death for an arson fire that killed his children, despite emerging evidence that new techniques showed there was no arson, which meant there was not crime. He is dead and not coming back. Are we safer because an innocent man is dead?
—David M. Greenwald reporting
This is a shameless promotion I know, but we have a new feature at the top of this article that I want to draw your attention to. Facebook users can hit the “like” button, if you like the article it’s a good way to help promote the Vanguard and share with your facebook friends.
I’d like to share an experience a client of mine had, that is on point with this article. My client was accused of embezzlement. The police came to my client’s office at a time when my client would be completely alone. They insisted my client was guilty of embezzlement and said they had the evidence to prove it. They badgered my client for over two hours, insisting my client was guilty, insisted they had the evidence, insisted if my client didn’t confess it would go hard on my client. The coercive nature of the interview was so pervasive, my client literally devolved into tears and started babbling – and could not even remember exactly what was said by either side.
When my client contacted me, I listened carefully to my client’s rendition of events, and the specifics of the embezzlement issue. It was clear to me from the mechanics of how the money was handled, my client was completely innocent (someone regularly picked up the money in question from my client, and always signed off on it if it was the correct amount). Yet, as my client said to me, “I can’t even remember if I confessed to the crime or not in that interrogation. The officer had me alone, badgered me by insisting they had evidence of my guilt, until I didn’t know what I was saying.” I strongly advised my client to refuse to talk to the police again; explained to my client exactly why my client had to be innocent; and that the police can and do make up any story they want to make anyone think they have evidence they may not have.
The police visited my client once again, but this time my client told them nothing. My client was never charged, but my client was eventually fired from her job (it was terminable at will employment, so there wasn’t much that could be done). We found out later that someone who had friends in higher places had wanted my client’s job, and was indeed hired after my client was fired. It was this slimey person who had reported the alleged “embezzlement” to the police.
Remember 21 year old Monica Lewinsky? No less than 17 FBI agents descended on her, and took her somewhere for questioning. After the fact, when Kenneth Lay was questioned about such questionable tactics in gathering evidence, his answer was that she wasn’t under arrest, she was always free to leave at any time. Now what 21 year old, descended upon by 17 FBI agents, taken somewhere for questioning, is going to think she is “free to leave”?
These kinds of coercive police methods are 1) ethically wrong even if legally permissable; 2) need to be made illegal, bc the evidence they elicit is not going to be necessarily reliable. I have seen some very good police work, in which interviews are videotaped. The police interviewer is very knowledgeable about what he is doing. In a very gentle way he is able to extract a confession in a reasonable manner, that is not coercive. It can be done with good police work.
There is an interesting discussion of the “corroboration rule” on this subject in a recent case U.S. v Brown, which I will post below –
UNITED STATES v. BROWN
UNITED STATES of America, Plaintiff-Appellant, v. David E. BROWN, Defendant-Appellee.
No. 09-5431.
Argued: Aug. 6, 2010. — August 24, 2010
Before: SUTTON and McKEAGUE, Circuit Judges; JONKER, District Judge.*
ARGUED:Christopher D. Poole, Assistant United States Attorney, Chattanooga, Tennessee, for Appellant. Mary Ellen Coleman, Federal Defender Services of Eastern Tennessee, Inc., Chattanooga, Tennessee, for Appellee. ON BRIEF:Debra A. Breneman, Assistant United States Attorney, Knoxville, Tennessee, for Appellant. Mary Ellen Coleman, Federal Defender Services of Eastern Tennessee, Inc., Chattanooga, Tennessee, for Appellee.
OPINION
A jury convicted David Brown of being a felon in possession of a firearm. 18 U.S.C. § 922(g)(1). Brown moved for a post-verdict judgment of acquittal, arguing that the sole evidence presented against him at trial-his confession-could not support the jury’s verdict. Invoking the “corroboration rule,” the district court agreed with Brown and acquitted him. The United States appeals. Because sufficient independent evidence establishes the trustworthiness of Brown’s statements, we reverse.
I.
In April 2006, Jason Helms reported that someone had stolen a Glock .40 caliber pistol and a silver necklace from his home in Cleveland, Tennessee. Helms suspected that an acquaintance, David Brown, might be the culprit. He relayed his suspicion to Detective Robert Harbison, who learned that Brown was staying at his cousin’s house and eventually found Brown sleeping on the couch there. Harbison woke Brown, identified himself, explained the reason for his visit and asked to speak with him. Brown consented and the two men went outside, where Helms stood waiting. Helms and Harbison explained that they did not “want [Brown] to go to jail,” that Helms “just wanted his gun back” and that, if Brown “[gave] the gun to Mr. Helms,” he could “go back in[side] and go to sleep.” R.78, 5. Brown responded that he had traded the gun for methamphetamine in a neighboring county and that he “[could] get the gun back.” R.78, 5. He refused to divulge to whom he traded the gun or where it might be.
Harbison took Brown to the police station for further questioning. Once there, Harbison read Brown his Miranda rights, and Brown waived them. Brown gave a tape-recorded confession, saying that he entered Helms’ house and stole the Glock .40 and the silver necklace. He refused once again, however, to disclose who had the gun, pledging only that he would get it back. Several days later, Brown’s mother called Harbison with a similar promise: She would get the gun and return it. The gun was never recovered.
Two months later, a federal grand jury indicted Brown for being a felon in possession of a firearm on the basis of Brown’s confession that he had taken-and therefore possessed-Helms’ gun. 18 U.S.C. § 922(g)(1). Detective Carl Maskew arrested Brown and brought him to the county jail, where he again administered Brown his Miranda rights. Brown again agreed to speak with Maskew and signed another waiver form.
This time, Brown’s story changed. He said that he knew nothing about the stolen gun. During his prior confession, he explained, he was confused as to which gun Harbison was asking him about. The gun that he traded for methamphetamine, he now insisted, was not Helms’ Glock .40, but a Glock .22 that he received as payment for some landscaping work.
Minutes later, Brown revised his story again. Two acquaintances, he said, broke into Helms’ house and stole the gun and the necklace. They gave Brown the Glock .40 a day or so after the burglary. Brown traded the gun to his cousin Jimmy Chambers for 30 to 40 dollars’ worth of methamphetamine. He told Maskew that “if possible” he “[would] help try to find” the missing gun. R.78, 25.
Brown went to trial on the felon-in-possession charge. He stipulated that he was a convicted felon and that the gun at hand had traveled in interstate commerce, leaving the government to prove that Brown knowingly possessed it. United States v. Campbell, 549 F.3d 364, 374 (6th Cir.2008). The government played Brown’s tape-recorded confession for the jury and offered the testimony of Detectives Harbison and Maskew, who both described their conversations with Brown. Brown testified. He recanted his confession to Harbison, blaming it on a methamphetamine and morphine binge and insisting that he could not remember speaking with Harbison. He also disclaimed making any statements to Maskew and denied that he ever possessed a gun, be it Helms’ Glock .40 or the Glock .22 he referenced during his interview with Maskew. The jury found him guilty.
After his conviction, Brown renewed his motion for a judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure. He argued that the only thing linking him to the crime was his uncorroborated confession, which by itself could not sustain the verdict. The district court agreed and acquitted Brown.
II.
A dusty doctrine of criminal law-the “corroboration rule”-lies at the heart of this appeal. Rooted in English common law and embraced by the United States Supreme Court in the 1950s, the rule says that no one may be convicted of a crime based solely on his uncorroborated confession. Opper v. United States, 348 U .S. 84, 89, 93 (1954); see also Smith v. United States, 348 U.S. 147, 156 (1954); United States v. Calderon, 348 U.S. 160, 165 (1954). Early versions of the rule developed in 17th-century England when a series of suspects confessed to murders, only to have their alleged victims turn up-alive and well-long after the suspects were imprisoned (or, worse, executed) for the fictitious crimes. See Thomas A. Mullen, Rule Without Reason: Requiring Independent Proof of the Corpus Delicti as a Condition of Admitting an Extrajudicial Confession, 27 U.S.F. L.Rev. 385, 399-401 (1993) (citing Perry’s Case, 14 How. St. Tr. 1311 (1600)). First known as the corpus delicti, or “body of a crime,” rule, the doctrine guarded against convictions for imaginary crimes by requiring prosecutors to demonstrate through independent evidence that the crime occurred before they could use an accused’s own statements to establish guilt. Smith, 348 U.S. at 153-54; see also United States v. Sterling, 555 F.3d 452, 456 (5th Cir.2009).
Today’s corroboration rule differs from its predecessor in form but not in function. Wary that “[the] weakness of the accused under the strain of suspicion” may cause the accused to give a false, even if voluntary, confession, Opper, 348 U.S. at 90, the Supreme Court in 1954 embraced a variation on the rule to prevent “errors in convictions based upon untrue confessions alone,” Smith, 348 U.S. at 153. Unlike the corpus delicti rule, the government need not introduce evidence independent of the accused’s confession to establish that the crime occurred. Opper, 348 U.S. at 93. The government instead generally may satisfy the rule if it introduces “substantial independent evidence which would tend to establish the trustworthiness of the statement,” id. (emphasis added), an approach that has the virtue of ensuring that these trustworthiness considerations extend to all confessions, including those in which no one doubts a crime occurred, only who committed it.
The corroboration requirement, it bears adding, differs from another requirement-that the confession be voluntary. Voluntariness goes to admissibility, while corroboration goes to sufficiency. See Smith, 348 U.S. at 153. Federal courts thus may admit confessions into evidence as voluntary, then later reject them as uncorroborated on the theory that even voluntary “inculpatory confessions ․ are frequently unreliable,” and jurors ought not “vote to convict based upon such statements alone.” United States v. Bryce, 208 F.3d 346, 355 (2d Cir.1999).
Throughout its tenure, the corroboration rule has received mixed reviews in the federal courts. As far back as 1918, Judge Learned Hand doubted whether the rule had “any substantial necessity in justice” but did “not feel at liberty to disregard a principle so commonly accepted.” Daeche v. United States, 250 F. 566, 571 (2d Cir.). A panel of our court expressed a similar sentiment two decades later, saying it did not “feel free to cast [the rule] aside” “because of the fixed rule of most courts that corroboration of a confession is necessary,” even though it “kn[ew] of no good reason why [properly obtained confessions] need corroboration.” Anderson v. United States, 124 F.2d 58, 65 (6th Cir.1941), rev’d on other grounds, 318 U.S. 350 (1943). Even the Supreme Court did not adopt the rule without reservation. Because the rule “infringe[s] on the province of the primary finder of facts,” the Court cautioned, “its application should be scrutinized lest the restrictions it imposes surpass the dangers which gave rise to them.” Smith, 348 U.S. at 153.
The passage of time has not diminished ambivalence about the rule. False confessions, on the one hand, have not disappeared, and they provide a modern justification for continuing to respect the rule. The emergence of several new criminal procedure protections over the last several decades, on the other hand, has altered the role of the rule. Since 1954, the Court has constitutionalized several areas of criminal law, many to the end of preventing false and uncounseled confessions. Not the least of these are the requirement that law enforcement read custodial suspects their rights before interrogating them, Miranda v. Arizona, 384 U.S. 436 (1966), the requirement that interrogations cease upon a suspect’s request for an attorney, Edwards v. Arizona, 451 U.S. 477, 484-85 (1991), and the multi-factor inquiry courts undertake to ensure the voluntariness of confessions, see, e.g., Withrow v. Williams, 507 U.S. 680, 689 (1993).
In the aftermath of these developments, some question whether the corroboration rule has outlived its utility and ought to be treated as a quaint, though now irrelevant, reminder of the Court’s pre-Miranda days. See, e.g., United States v. Dalhouse, 534 F.3d 803, 806 (7th Cir.2008) ( “What the rule accomplishes is open to debate.”); United States v. Dickerson, 163 F.3d 639, 641 & n .2 (D.C.Cir.1999) (“[We are] doubtful” “that the Supreme Court would today rule as it did in 1954.”); see also 1 McCormick on Evidence § 145 (6th ed.) (“[T]he development of ․ Fifth Amendment protections” has diminished “concerns regarding ․ interrogation practices” as well as “support for the corroboration requirement.”); 7 Wigmore, Evidence § 2070 p. 510 (Chadbourn rev. 1978) (False confessions of guilt are “exceedingly rare” and the corroboration rule is often an “obstruction to the course of justice.”); Mullen, supra, at 418 (“[T]he corroboration requirement” “should be abolished.”). Others say that the rule continues to provide a real-and necessary-check on false confessions. See Saul M. Kassin, et al., Police-Induced Confessions: Risk Factors and Recommendations, 34 Law & Hum. Behav. 3 (2010); Talia Fisher & Issachar Rosen-Zvi, The Confessional Penalty, 30 Cardozo L.Rev. 871 (2008). Through it all, the Supreme Court has not revisited the rule since 1954.
Developments in interrogation law provide one source of uncertainty about the modern role of the rule. Another source is the development of modern sufficiency-ofthe-evidence rules. Years after adopting the corroboration rule, the Supreme Court recognized that criminal defendants have a due process right to have their convictions supported by evidence that leaves no reasonable doubt about their guilt. Jackson v. Virginia, 443 U.S. 307, 316-17 (1979); In re Winship, 397 U.S. 358, 364 (1970). “[V]iewing the evidence in the light most favorable to the prosecution,” the federal courts now must ensure that the prosecution meets its burden of establishing sufficient evidence from which “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319 (emphasis omitted). There is some tension between Jackson and the corroboration rule. If viewed in the light most favorable to the prosecution, most confessions by themselves would seem to meet the Jackson standard, yet a reviewing court nonetheless would have to invalidate the conviction if no corroborating evidence supported it. Adding to the puzzle is the reality that the corroboration rule is thought of as a non-constitutional rule. See Jackson, 443 U.S. at 330 n.1 (Stevens, J., concurring); Williams v. Chapleau, No. 97-6015, 2000 U.S.App. Lexis
195, at *10 (6th Cir. Jan. 4, 2000) (declining to apply the rule to a habeas claim). Perhaps that is right, and the common law rule merely builds on the due process constitutional floor (later) established by Jackson. Or perhaps the venerability of the rule is a constitutional virtue, not just a common law one, making it a component of the due process protections provided by the Fifth and Fourteenth Amendments. Either way, there is no getting around the reality that there is tension between the corroboration common law rule and the Jackson constitutional rule.
All of this may suggest that the modern justifications for the rule and the scope of it warrant a reassessment. But, for now, none of this alters our obligation to follow it.
III.
It is one thing to state the corroboration rule (and the purposes it serves) and another to apply it. Here are the ground rules:
• The independent corroborating evidence “does not” by itself “have to prove the offense beyond a reasonable doubt, or even by a preponderance.” Smith, 348 U.S. at 156. Nor does it have to prove “each element of the offense charged.” United States v. Trombley, 733 F.2d 35, 37 (6th Cir.1984). Rather, “[t]he purpose of corroboration is” merely “to ensure the reliability of the confession or admission of the accused.” Id.
• When an accused confesses to a crime involving “physical damage to person or property,” the independent corroborating evidence need only show that the crime occurred. Wong Sun v. United States, 371 U.S. 471, 489-90 n.15 (1963). The prosecution need not show that the independent evidence ties the accused to the crime. Id.; see also United States v. Daniels, 528 F.2d 705, 707-08 (6th Cir.1976) (When a suspect confesses to a bank robbery, showing that a bank robbery occurred satisfies the corroboration requirement.).
• But when an accused confesses to a crime for which there is “no tangible injury” and “it cannot be shown that [a] crime has been committed without identifying the accused,” Smith, 348 U.S. at 154, “the corroborative evidence must implicate the accused,” Wong Sun, 371 U.S. at 489-90 n.15 (citations omitted); see also United States v. Shunk, 881 F.2d 917, 920-21 (10th Cir.1989) (Statement of gun seller that defendant bought a gun from him is sufficient corroborating evidence to convict the defendant of being a felon in possession of a firearm.).
• And for either type of crime, “one available mode of corroboration is for the independent evidence to bolster the confession itself and thereby prove the offense ‘through’ the statements of the accused.” Smith, 348 U.S. at 156. If, for example, a defendant admits that he drove a car that had an illegal sawed-off shotgun in its trunk, it is sufficient for the independent corroborating evidence to show that he drove that particular car. Cf. United States v. Davis, 459 F.2d 167, 171 (6th Cir.1972).
Did “substantial independent evidence” corroborate Brown’s confession? Brown confessed on two separate occasions to possessing Helms’ Glock .40, saying to Harbison that he obtained the gun by robbing Helms’ house and to Maskew that two acquaintances gave him the gun after they robbed Helms’ house. Despite Brown’s wavering over who committed the robbery, both statements have several unifying themes: (1) Helms’ Glock .40 had been stolen from Helms’ house, along with a silver necklace; (2) Brown at some point acquired the Glock .40; and (3) Brown sold the Glock .40 for methamphetamine. Independent evidence-Harbison’s testimony about the police report-corroborates point one: A Glock .40 and a silver necklace were stolen from Helms’ house. R.78, 2, 8 (Helms “filed an offense report reporting that his residence had been broke[n] into,” and “a Glock .40 caliber pistol was taken, and, also, a chain, some kind of jewelry.”). And independent corroboration of one part of the statement may corroborate the entire statement, including the part in which Brown admits possessing a firearm. See Smith, 348 U.S. at 156; United States v. Deville, 278 F .3d 500, 506 (5th Cir.2002); Trombley, 733 F.2d at 37-38. The independently established fact that certain specified items were stolen from Helms’ house thus lends support to Brown’s confession that he possessed the gun.
Brown takes issue with the corroborating effect of the independent evidence establishing the robbery at Helms’ house, saying that “proof that the burglary occurred” would corroborate his statements only if “Brown [had] been charged with burglary.” Brown Br. 13. Not so. Independent proof that the burglary occurred, it is no doubt true, would corroborate Brown’s confession to burglary. But that is not all. The same independent proof also corroborates Brown’s statement as a whole, including his admission to possessing a firearm. Smith, 348 U.S. at 156; Opper, 348 U.S. at 93. Viewing the evidence in the light most favorable to the prosecution, a rational juror reasonably could accept Brown’s first Mirandized statement, in which he confessed to robbing Harbison’s home and to stealing the gun, as truthful and reject his second, more convoluted confession as unreliable. Once a rational juror accepted the truth of Brown’s confession to
the burglary-a part of the confession that all agree was adequately corroborated by the reality that the burglary occurred-it takes but a small step to conclude that Brown possessed the firearm. Brown offers no explanation how he could steal something yet never “possess” it. Nor can we think of one, at least when it comes to thefts committed by a single robber.
United States v. Calhoun, No. 92-2011, 1993 WL 280324 (6th Cir. July 26, 1993), is not to the contrary. In an unpublished, per curiam decision, Calhoun held that, when a defendant confesses to drug possession as well as to drug conspiracy, independent corroboration of one crime (possession) does not by itself “permit[ ] the use of the confession to prove” another crime (conspiracy). Id. at *3. Yet the corroborating evidence there-that the police found a “small amount” of drugs near Calhoun-did not indicate that Calhoun was also involved in a conspiracy, as opposed to merely being a recent purchaser of drugs. Id. Here, the corroborating evidence-that the type of gun stolen from Helms’ house was the type Brown admitted to possessing-“implicate[s]” Brown in the charged crime. Wong Sun, 371 U.S. at 489-90 n.15. The independent evidence provided sufficient corroboration.
IV.
For these reasons, we reverse the district court’s judgment of acquittal and remand the case for further proceedings.
Sorry for such a long post, and I have no idea why parts of it came out underlined. This is a recent case (2010) which was so on point with this discussion, I felt it important enough to post, altho in hind sight it might have just been better to provide the link to the case! My apoligies…
Correction: apologies
Here is link to case:
http://caselaw.findlaw.com/us-6th-circuit/1535976.html
To E Roberts Musser:
Thank you for all the information and about Monica Lewinsky in particular. I never thought about that happening to her.
Also, though I know you don’t have much tolerance for alleged gang members, this all reminds me of how people are served in West Sacramento under the gang injunction. I’ve heard accounts where multiple officers in vans and squad cars will show up unannounced, sometimes at the person’s workplace, and stand there and tell you you’re served. Sometimes, they get the SWAT team to go with them, close off a block and get a helicopter to circle overhead. The people in these examples had childhood friends or relatives who were named as gang members. But just imagine, how could you think straight with that kind of intimidation?
I once had a roommate here in Davis who was working without a valid work permit. One day, the immigration dept visited his workplace and caught him. A few minutes later, I opened my front door and thought the six people there were Jehova’s Witnesses or something. The guy said “Can we come in?” I said that I was a little busy at the moment. Then he flips his badge out and says “We’re from the Department of Homeland Security.” I was half a sleep but that woke me up. The six of them came in, took me to a separate room, checked my papers and then questioned me about my roommate. I was too much in disbelief to assert my rights. I never occurred to me that I didn’t have to show them anything or answer any questions.
There is a law that specifically encourages cops and DAs to get confessions. It goes something like “any statements against penal interest by a suspect are deemed to be true since a reasonable person would not make false statements that would adversely hurt them”.
So the DA Reisig loves it when a cop gets a confession since it puts the burden of proof back on the suspect or his over worked defense attorney. Who cares if it was coerced, it is up the suspect to prove it. Cops are taught in the academy and by DAs that as long as you don’t handcuff a guy and tell him he is free to leave you can do just about anything else and the statement will not be considered “coerced”.
Years ago the system worked since DA’s were considered to be above doing sneaky tricks just to get a conviction or headlines. A ethical DA with integrity would never do anything that he thought might put an innocent guy in jail. Not the case now, excuses from the DA like “It is not our job to do the defense work” or “that is why he has an attorney, not our problem if he missed this”. Very unethical and corrupt way of doing business, but what is the downside for DA? Not much, he gets no negative press, he gets to put out all his wins in his mandatory print press releases and by the time someone fights and wins, it is old news and people don’t really care.
It is very common for cops to tell a suspect if they cooperate it will be better for them. This is accepted and the DA will never charge or go after a cop for doing this since it helps the DA get convictions.
Other things and tricks cops and DAs use to get confessions is threatening parents with losing their child, telling parents they will call CPS if they don’t cooperate, telling people they will lose their public assistance if they don’t cooperate, saying cops will visit a person at work and embarrass them if they don’t cooperate, threatening to tell a spouse of their crime, threatening to do lots of probation or parole searches if the person does not cooperate, saying the DA will consider their help and it will help them, and many others. Depending on how this is said it can be justified later as being accurate and the context was not threatening or coercive and if the person took it that way, that is was their fault.
When there is no separation of powers, you get more corruption, since the checks and balances are removed. The cops are scared to upset the DA so they “cooperate” with him even if they know they are crossing the line, the County supports and protects the DA since they don’t want to get sued if they tell the facts, the new media is afraid to get cut off so they don’t cross the DA, other politicians want the DA to endorse them in their campaigns so they do want to stay on the good side, so where is the checks? Some will say DOJ or the FBI would investigate, not so, the DA supports and works closely with both, the DA gets money from the FEDS and the State in the form of grants and task force help so they need and depend on each other, neither wants the other to look bad since they are in bed and work so closely. So where is the checks?
“Who cares anyway, it is just crooks going to jail and even if they are innocent of this crime there are probably many others crimes that they got a away with before, so they deserve to go to jail anyway” – a common belief with many DAs and cops.
DarkAges: “Also, though I know you don’t have much tolerance for alleged gang members, this all reminds me of how people are served in West Sacramento under the gang injunction.”
Actually, you really don’t know how I feel about alleged gang members. I often disagree with some of the viewpoints stated in the articles appearing in the Vanguard for various reasons, so I play Devil’s adovocate. I think it is important to realize the problems law enforcement/DA have in prosecuting cases. I don’t believe in tarring a DA with the accusation of “corruption” if the issue is endemic to the legal system as a whole. It is intellectually dishonest to self-servingly cherry pick evidence to bolster a preconceived agenda, and not view the various sides of an issue in fairness. But that does not mean I am not troubled by some things that have gone on in Yolo County, and it does not mean I necessarily like some of the practices that are tolerated in our legal system.
As I’ve noted above, I don’t care for the practice of law enforcement intimidating/coercing confessions from defendants through the use of isolation, intimidation tactics, bald-faced lies used for the purpose of intimidation, and the like. Confessions induced in this way are not reliable and do not get at the truth. Nor am I particularly comfortable with the plea bargaining process, even though it probably is a necessary evil. Public defenders need to have sufficient time to become familiar with their cases, and need sufficient resources to accomplish basic investigative work, such as a simple DNA test if relevant.
As for the gang injunction itself, I’m not really sure where I stand on that issue. I’m waiting for the DA to produce the witnesses requested by the judge – actual residents who have been harmed by the alleged “Broderick Boys gang”, if there is one. I’m troubled by the DA’s practice of negotiating plea deals where the defendant may or may not be coerced into admitting gang affiliation in exchange for little or no jail time.
Do I have much tolerance for gang members? I don’t care one way or the other whether someone is in a gang. It is the behavior of that person that bothers me. My son was the victim of gang violence, from a gang that operated right here in Davis. The gang was “headquartered” in West Davis, the leader lived in the house of the DHS Vice Principal. My son was beaten up on graduation day, by a member of the gang at the direction of its cowardly female leader, who got her posse to do her dirty work for her. She was caught with a knife at school within a few days of an altercation with my son, so I have no doubt the knife was intended to end up in my son’s gut/back.
This gang leader singled out innocent victims, got her posse to bedevil/bully the victim into reacting, then the posse member and the victim were suspended – but not the gang leader. Sometimes she did her own dirty work, which she did in the case of my son, bc he was so small for his age. Unfortunately for her, she went too far one day and shoved my son in the classroom in full view of the teacher, and my son was goaded into beating the living tar out of her, my son having had enough taunting (which had been going on the entire day). By the way, the teachers/administration would do nothing, which was no surprise since the leader lived with the Vice Principal. No conflict of interest there (being sarcastic)!
But the incident on my son’s graduation day took place right after the gang jumped a drunk college student the night before. The college student ended up in the hospital with serious injuries. The posse member who hit my son went to jail, and eventually so did the gang leader. It took some solid police work from a very dedicated Davis police officer, who really understood what was going on. The gang leader was well known by the DPD, and they were determined to put a stop to this gang and its nefarious activity. DHS, on the other hand, had its hands dirty by housing this female punk and believing every sob story she told them about how difficult her home life was. What a joke – her own brother was a darling boy and the exact opposite of his sister – yet he came from the same supposedly dysfunctional family life. This gang leader had every excuse in the book for her bad behavior, and DHS aided and abetted the situation by housing/supporting her.
Roger Rabbit: “There is a law that specifically encourages cops and DAs to get confessions. It goes something like “any statements against penal interest by a suspect are deemed to be true since a reasonable person would not make false statements that would adversely hurt them”.”
This is not quite correct. There is an exception to the hearsay rule, which is known as an “admission against interest” or “admission against penal interest”. Normally, what someone else says is not admissable in court, as inherently unreliable hearsay. For instance, a police officer cannot normally testify “so and so said this or that happened”. Generally, the witness must tell the court in person what s/he actually saw/heard. But if someone utters a statement that is against their own interest, such as “I committed the crime”, the courts deem the statement itself reliable as to the truth of the matter asserted because why would anyone utter an admission s/he actually committed a crime? Therefore the police officer can tell the court “The defendant admitted s/he committed the crime, and signed a statement to that effect.” Even though the statement is hearsay (what someone else said offered for the truth of the matter asserted), it is admissable at trial.
Unfortunately, as the previous discussion has shown, such admissions are not always given free of coercion/intimidation, which can definitely be a problem.
Roger Rabbit: “Cops are taught in the academy and by DAs that as long as you don’t handcuff a guy and tell him he is free to leave you can do just about anything else and the statement will not be considered “coerced”.”
I really don’t know what law officers are taught in the police academies, but certainly most lay people are not aware/do not believe they are free to leave when stopped by a police officer, let alone 17 of them.
Roger, “Cops are taught in the academy and by DAs that as long as you don’t handcuff a guy and tell him he is free to leave you can do just about anything else and the statement will not be considered ‘coerced’.”
There are a few problems with this. Every person is protected from unreasonable searches and seizures under the fourth amendment. Law enforcement officers are to know (to be trained at academy and by their FTO) when they can detain a person and when they cannot. A law enforcement officer doesn’t necessarily have to tell a contacted person that they are “free to leave.” However, if the officer doesn’t have articulable suspicion he cannot hinder that person’s freedom of movement, command that person to stop or anything else in which a reasonable person would feel they are no longer free to end the contact or continue on their way (IOW, detained).
If an officer doesn’t violate the contacted person’s right to be protected from unreasonable searches or seizures, then whatever that person says is not ‘coerced.’ It’s not the officer’s obligation to explain to a contacted person all of their fourth amendment rights from the onset.
Roger Rabbit: “Years ago the system worked since DA’s were considered to be above doing sneaky tricks just to get a conviction or headlines.”
This sort of thing has gone on for years and years. I can remember a famous case involving the FBI, who knowingly put a father of 4 in jail knowing he was innocent to protect an informant. The informant went on to kill 3 people, and the father of 4 served 25 years in jail before he was finely exonerated of the crime he never committed. When the FBI agent involved in the case was called to testify before a Congressional oversight committee, and was forced to face the innocent man he was responsible for putting in jail, he did not have one word of apology to give. The FBI agent still doggedly held to the belief that what he had done was for the “greater good”. Nor was there any disciplinary action taken against this FBI agent, as far as I know. I will never forget that case as long as I live…
Roger, “Years ago the system worked since DA’s were considered to be above doing sneaky tricks just to get a conviction or headlines. A ethical DA with integrity would never do anything that he thought might put an innocent guy in jail.”
How do you know his predecessor, or any of his deputies, never did the same? How do you know that DA Reisig is prosecuting people he knows are innocent?
Roger,
“It is very common for cops to tell a suspect if they cooperate it will be better for them. This is accepted and the DA will never charge or go after a cop for doing this since it helps the DA get convictions.”
Law enforcement officers can’t tell someone that they will get a specific outcome if they cooperate, but they can suggest that they could possibly help them in consideation of the suspects cooperation, right? What would the cop get charged with?
[quote]Law enforcement officers can’t tell someone that they will get a specific outcome if they cooperate, but they can suggest that they could possibly help them in consideration of the suspects cooperation, right? What would the cop get charged with? [/quote]
Cops take an oath to defend and follow the constitution, knowingly violating a person’s civil rights, knowing bending the rules to get a false confession and being a part of putting an innocent person in jail is crime (both legal and morale). I know, how do you know it is false, if you don’t hide or sneak or try and trick, then you are not vested to win, a cop and DA’s duty should be to find and seek the truth, not to win, get a conviction, or take advantage of someone for their lack of knowledge of their rights.’
[quote]How do you know his predecessor, or any of his deputies, never did the same? How do you know that DA Reisig is prosecuting people he knows are innocent? [/quote]
You never had the accusations and constant scandal with the prior DA as you do with this DA, where there is smoke there is fire. As for knowing a person is innocent, this is just legal term for lawyers to use and manipulate, how do you know, it does not matter what you know, it only matters what you can prove, DA Reisig believes that he does not have to know or care about innocence, if he can get a conviction, then he can blame the court, the Def Attorney, the jury or suspect for not proving they were innocent. Omission of the truth is lie, DA Reisig omits information from the press and the courts routinely and legally (according to people that work in that office) and he justifies these omissions as “it is not his job do the the Defenses work” or the information is not “discoverable or exculpatory” therefore “legally” he does not have to say it or tell it. It is dirty, unfair and not what the intent of the law or our justice system was designed for.
[quote]This sort of thing has gone on for years and years.[/quote]
It does not make it right or justifies it. Bad behavior should not justify bad behavior. That is the problem, the supposedly good guys (cops and DAs) tend to fall into since the crooks get away with so much that over time they develop the attitude that everyone is guilty or lying so then they justify bending the rules or stepping over the line to get the bad guy. That is when the system breaks down. Cops can’t do this without a DA that supports this and looks the other and actually promotes this behavior. This is the problem in Yolo.
Roger Rabbit: “You never had the accusations and constant scandal with the prior DA as you do with this DA…”
Not true…
Roger,
“Cops take an oath to defend and follow the constitution, knowingly violating a person’s civil rights, knowing bending the rules to get a false confession and being a part of putting an innocent person in jail is crime (both legal and morale). I know, how do you know it is false, if you don’t hide or sneak or try and trick, then you are not vested to win, a cop and DA’s duty should be to find and seek the truth, not to win, get a conviction, or take advantage of someone for their lack of knowledge of their rights.’ “
Yes, law enforcement/prosecutors knowingly violating a person’s rights or committing criminal acts are all grounds for concern as well as getting charges dropped, disciplinary action taken and even the filing of criminal charges in some cases. However, the example for which you based your remark was not an example of said behavior. A LEO suggesting, in no specific terms, to a suspect that it’s in their best interest to cooperate with them (no matter if that turns out to be the case), is not unlawful or a violation of the suspect’s rights. Do you believe otherwise?
I know you take issue with the discretion of law enforcement and prosecutors, but you must concede that they have an array of tactics (including tricking suspects, saying “you’re better off…”, consensual contacts, etc.), many of which when challenged have been upheld under the court’s scrutiny. I may not like it, you clearly don’t like it, but can you blame them for using every tool in their bag to execute their duties?
I agree, their job should be one of finding and seeking the truth. The problem is…sometimes they make mistakes or are inept, corrupt, misguided, zeroed-in on the wrong guy, overly ambitious to the point in which justice is not fully served and so forth. Taking advantage of someone as a result of their unfamiliarity with the law or their rights is how many a case is made. We all could take the time to learn them, I suppose…
“You never had the accusations and constant scandal with the prior DA as you do with this DA, where there is smoke there is fire…”
Didn’t the Vanguard launch the same year DA Reisig took office? That increased the level of scrutiny and coverage of the DA dramatically, seeing as the local print media tends to either shy away from certain “controversial” stories or don’t have the resources available to cover them. Just to be clear, I’m not suggesting his predecessor has engaged in an unprofessional or unethical manner, just that he was way more low-key (perhaps Reisig should have taken note) and sites like the Vanguard weren’t putting his office under a microscope.
Also, as ERM mentioned, I don’t know that your right about there being NO accusations and scandals with previous DA’s or their deputies.
“DA Reisig believes that he does not have to know or care about innocence, if he can get a conviction, then he can blame the court, the Def Attorney, the jury or suspect for not proving they were innocent.”
If he has serious doubts about a suspect or defendant’s guilt, I would prefer he didn’t risk putting this possibly innocent person’s life in the wind. That said, it is also up to the defense, judge and jury to sort out the facts re: innocence or guilt. The problem is that we obviously have a fallible CJS and those safeguards don’t always result in an innocent man on trial being set free come verdict.
“Omission of the truth is lie, DA Reisig omits information from the press and the courts routinely and legally (according to people that work in that office)”
It is obvious that the DA’s press releases include omissions, but is it their (his) job to explain to the public everything that happened, such as which charges a defendant was found not guilty? The DA’s office is, in effect, a public safety agency and the DA is an elected official. First, he feels duty-bound to inform the public of how his office is combating crime and prosecuting criminals. Secondly, he is a politician and his reelection is a top priority, so of course he’s not going willingly release information to the public that would reflect poorly on his office and him.
Good points Superman! 🙂
I still think the DA should held to a higher standard and should be above reproach and very clear to not “give the impression of improprieties” Any hint of dishonesty should be explained very clearly to avoid from causing people to lose faith in the system and to distrust the system.
As I said before “those who have nothing to hide – hide nothing”, this DA is surrounding in secrecy, deception, controlled press releases, lack of openness, refuses to take questions or give interviews and refuses to explain his actions or decisions and runs his office like a enclosed dictatorship, where most of what goes on is concealed, hidden and refuses public access. Out of all the issues with his office he has never held a press release to take questions, he has never apologized for making a mistake and just blames others and insist he is prefect and does not need to justify his actions to any small little people below him. A very arrogant attitude, but consistent with his lack of experience and age, I am not sure he is even 40 yet and when he was elected he just a few years over 30.
I know and talk to people who work close with him and the stories they tell me all corroborate what I believe, yet you have people defending him that have never met him and only judge him by his press releases.
Not many past employees that have worked with Mr Reisig, have many good things to say about Jeff Reisig. I have not met one yet and the predictor of future behavior is prior behavior.
Seems like audio-taping the entire interrogation (for station and later interrogations) from start to finish is a good requirement for all crimes.
Is this the law in California?
Also video-taping for the most serious crimes (murder, home invasion, etc.)
At the arrest scene, after the defendant is read his rights, why should not the defendant should be allowed to confess if he wants to, without a lawyer present?
At the arrest scene, a high-pressure interrogation should not be allowed (is it allowable now?),
the amount of pressure applied should be lower than that allowed for station and later interrogations.
How about if the level of pressure allowable is reduced if a lawyer is not present; but higher if the defense lawyer is present?
Jim, you ask, “At the arrest scene, after the defendant is read his rights, why should not the defendant should be allowed to confess if he wants to, without a lawyer present? ” and then go to say, “At the arrest scene, a high-pressure interrogation should not be allowed (is it allowable now?), the amount of pressure applied should be lower than that allowed for station and later interrogations. How about if the level of pressure allowable is reduced if a lawyer is not present; but higher if the defense lawyer is present?”
The lawyer is there to protect the rights of the individual to ensure that they are not pressured into a confession and the problem with being pressured into a confession is that the confession may not be valid. The police have conducted these types of interviews in the past out of the belief that they were obtaining something real (or not caring if they didn’t). A video tape might not be sufficient because unless you are an interrogation expert you might not be able to figure out if it is a false confession. Even the researcher said the confessions looked valid.
Videotaping arrests, and confessions would at least eliminate the business of getting a suspect “alone” and using high pressure tactics to coerce confessions. Videotaping is not a panacea, but it certainly would help in cutting down on coerced confessions. In some states, videotaping of arrests is mandatory and cameras are mounted on the squad cars as a protective measure. It protects both the defendant (from abusive behavior a la the Rodney King beating) and the police (from accusations of police brutality).
RR, “As I said before “those who have nothing to hide – hide nothing”, this DA is surrounding in secrecy, deception, controlled press releases, lack of openness, refuses to take questions or give interviews and refuses to explain his actions or decisions and runs his office like a enclosed dictatorship, where most of what goes on is concealed, hidden and refuses public access.”
You are making quite a few allegations here, can you offer up any proof?
RR, “Out of all the issues with his office he has never held a press release to take questions, he has never apologized for making a mistake…”
Did you mean to say press “conference?” I believe he has taken questions or at least spoke at press conferences or had his representatives there. It’s not uncommon for a department head or public official to have his or her underlings speak on behalf of the office. Apologized for what, exactly? Is the public owed an apology for some wrongdoing in which his office was responsible for?
RR, “A very arrogant attitude, but consistent with his lack of experience and age, I am not sure he is even 40 yet and when he was elected he just a few years over 30.”
The article I read in the Bee this year mentioned that he was 40 at the time. So that would make him around 36 when he won this seat four years ago. Sure, he had no managerial experience, which is problematic when you’re going to be running an entire office. If memory serves, his opponent, Mrs. Lenzi, didn’t have any managerial experience either, so they were both lacking in that department. This time around, no one decided to take him on, which was probably the best chance anyone is going to have unseating him, unless he royaly screws up…but even then, that’s not a sure thing.
One of the main purposes of taping all interrogations would be to check, if a confession is made, if the interrogators had inadvertantly provided details of the crime at some point in the interrogation prior to the confession. This would remove the question of “how could the defendant have known these details of the crime if he was not involved with it?” and would also have the benefit of holding the interrogators to a higher standard to use more care not to do this!
jimt: “One of the main purposes of taping all interrogations would be to check, if a confession is made, if the interrogators had inadvertantly provided details of the crime at some point in the interrogation prior to the confession. This would remove the question of “how could the defendant have known these details of the crime if he was not involved with it?” and would also have the benefit of holding the interrogators to a higher standard to use more care not to do this!”
Very good point.
This article has an inaccuracy that needs to be addressed.
Re: “One such example is bullet-lead analysis, which is completely false but was often used to tie bullets to a particular weapon, out of the assumption that there was a unique quality that could track where the lead came from. Turns out, no basis for that.”
Bullet lead analysis or compositional analysis of bullet lead (CABL) was never used to tie bullets to a particular weapon. CABL was used to determine if two bullets were statistically indistinguishable in the analysis of each of the elemental (arsenic (As), antimony (Sb), tin (Sn), copper (Cu), bismuth (Bi), silver (Ag), and cadmium (Cd)) concentration means in the bullet metal. The result of which would be that the two bullets probably came from the same “source.” Typically a bullet from a potential crime would be compared to ammunition in a suspect’s possession. This type of analysis could occur if no weapon was found. The National Academy of Sciences / National Research Council (NRC), at the request of the FBI, studied the FBI’s use of CABL and published its results in its 2004 publication Forensic Analysis: Weighing Bullet Lead Evidence. The NRC did not find that CABL was “completely false.” The NRC found that CABL is sufficiently reliable to support testimony that bullets from the same compositionally indistinguishable volume of lead (CIVL) are more likely to be analytically indistinguishable than bullets from different CIVLs. An examiner may also testify that having CABL evidence that two bullets are analytically indistinguishable increases the probability that two bullets came from the same CIVL, versus no evidence of match status. The NRC went on to say that, in many cases, CABL is a reasonably accurate way of determining whether two bullets could have come from the same CIVL. It may thus in appropriate cases provide additional evidence that ties a suspect to a crime, or in some cases evidence that tends to exonerate a suspect. It is possible, however, that individual analysts have testified beyond the limits of the analysis. In September 2005, the FBI discontinued the use of CABL. They cited that neither scientists nor bullet manufacturers are able to definitively attest to the significance of an association made between bullets in the course of a bullet lead examination. The FBI Laboratory still firmly supported the scientific foundation of bullet lead analysis, but given the costs of maintaining the equipment, the resources necessary to do the examination, and its relative probative value, the FBI Laboratory decided that it will no longer conduct this exam. Since the FBI lab was the only lab in the United States offering this service, CABL is no longer done in the United States.
George Schiro, MS, F-ABC
Forensic Scientist
http://www.forensicscienceresources.com