Hello. This week we’re going to explore criminal law and we’ll address some questions relating to a high profile case recently in the news. We’re speaking with Paul Bergman, a Professor of Law at the UCLA School of Law, and the co-author of The Criminal Law Handbook: Know Your Rights Survive the System form Nolo, a highly-recommended guide to criminal law.
In a recent criminal case, a man, John Mark Karr, confessed to trhe murder of Jon Bent Ramsay, committed over a decade ago. Karr was extradited to the United States where a handwriting analyst stated Karr’s handwriting matched a ransom note in the case. Then, twelve days after his confession, a DNA test revealed that Karr’s DNA did not match DNA found at the crime scene and he was released. We asked Paul Bergman a question that a lot of people are wondering ---Is it a crime to confess to a crime that you did not commit? That is, to make a fraudulent confession.
PAUL BERGMAN: There are statutes certainly in the federal government and in some states which make it a crime to lie to a police officer. And so if an individual makes a false confession to a police officer, then in theory, they might be prosecuted for that crime.
NOLO: If a suspect is lying when they make their confession, why not just give the suspect a lie detector test.
PAUL BERGMAN: Well the police sometimes do use lie detector tests to clear suspects. Generally, the lie detector test results are not admissible as evidence because the courts think the results are too subjective, they depend too much on the subjective judgement of the person running the lie detector test, and some people might be able to affect the results by practicing. So the general rule is that lie detector tests are not admissible in evidence whether the prosecution or defense wants to offer them.
In a number of states, assuming the prosecution and the defense agree before the test is given that the results will be admissible no matter which way they come out, the court in those states will admit the test. Apart from admissibility, police often do administer lie detector tests, just for their own purposes; they tend to have faith in their outcomes. And they may, for example, decide not to pursue further evidence against a potential suspect who passes the lie detector test. And so they might use it as way of clearing particular individuals, for their own purposes, apart from any courtroom use.
NOLO: As most people who watch police shows on TV are aware a police officer arrests someone and often says something like: you have the right to remain silent. If you give up that right, anything you say can and will be used against you in a court of law. You have the right to an attorney and to have an attorney present during questioning. If you cannot afford an attorney, one will be provided to you at no cost. During any questioning, you may decide at any time to exercise these rights, not answer any questions or make any statements. We asked Paul Bergman whether a confession made without these warnings is still admissible in trial.
PAUL BERGMAN: Generally, yes. What people say voluntarily either before or after they’re in custody, is admissible in evidence. The Miranda warnings are required only when the police conduct an interrogation or question a suspect, and if they begin the interrogation without giving the warning, then the confession will probably not be admissible in evidence. But if somebody just starts talking to the police with no interrogation, then no need for Miranda warnings.
NOLO: In the case that’s recently in news, a suspect confessed via email, to someone other than a police officer. We asked Paul Bergman about the admissibility of confession that’s made to someone other than a police officer. Can that be used in court?
PAUL BERGMAN: Sure … the police or state office of some kind is the only person who has to give Miranda warnings. What people say to friends, strangers, in bars, et cetera, is admissible without any kind of restriction at all.
NOLO: Most of us are familiar with the concept of DNA testing from high profile trials and from television shows. We asked Paul Bergman whether a suspect in a criminal case has to agree to DNA testing.
NOLO: Yes if the police have the need for a sample from which they can extract DNA, they have a right to demand it and you have no constitutional privilege to refuse. Now of course if they take the DNA sample in some horrible or inappropriate way -- let’s say given a person’ religious beliefs or something like that -- then the person could demand that the DNA sample be obtained in some more neutral manner. But you have no basic right to refuse to permit a DNA sample to be taken.
There’s a constitutional right that a lot of people are aware of having to do with – you don’t have to incriminate yourself -- but the Supreme Court at least 50 years ago, interpreted that to mean that you don’t have to provide testimony. But that doesn’t mean that you don’t have to provide certain physical evidence coming from your body -- like I think in those days, it was a blood test.
QUESTION: Can you go into a bar and let’s say, after someone used a glass, can you take that glass and get the DNA and use that as DNA evidence?
NOLO: I believe so If you’re talking about whether the police can do it, then you’ve left that in public, they’re not conducting a search for which they would need permission, so yes, they could look at the glass and take it to a lab, and if they could get some usable DNA, then that would be acceptable.
NOLO: Many people are unclear about how DNA is obtained and about how it is used in court. DNA can be obtained from just about any human tissue and its commonly obtained from hair, fingernails, bones, teeth and bodily fluids. There is a well-known DNA database maintained by the FBI commonly used by law enforcement called CODIS, which stands for Combined DNA Index System. CODIS. For example, CODIS contains DNA samples from convicted sex offenders and from many felons. By the way, DNA has one interesting quirk. Identical twins are the only people with identical DNA – that’s because identical twins are created when a fertilized egg splits. That’s not the case for fraternal twins. Identical twins do not have identical fingerprints however. We asked Paul Bergman if DNA is always admissible in court.
PAUL BERGMAN: DNA evidence is generally admissible. I’m not an expert on DNA but I know that DNA sampling has been done on kind of a group- by-group basis. And I could be that, a judge might say that a particular DNA result is not admissible because of the defendant, or the person whose DNA was tested, is from one group, let’s say Caucasian and the DNA results were obtained by looking at a different group, let’s say Hispanics, or African American.
And there may be some novel way of testing for DNA that a court may not yet approve. But as a matter of science, the courts have accepted the science underlying DNA testing, and the results that are generally admissible.
NOLO: Scientific evidence has always been important in criminal cases but during the past 25 years, it has increased, particularly with the use of DNA evidence. Along with that has come considerable media attention, particularly a series of television shows, most prominent of which is CSI, which stands for Crime Scene Investigation. Surprisingly, these shows may have made it harder for prosecutors to obtain convictions., We asked Paul Bergman about the CSI effect.
NOLO: What these television shows tend to do now is to glorify and probably exaggerate the role of forensic scientists in detecting and proving crimes in court. And these shows are quite dramatic and these performers playing scientists have access, apparently, to all sorts of nifty gadgets to catch all sorts of things and come up with evidence that no one could have known about. The problem is that, at least many prosecutors believe, that it’s making it harder to obtain convictions, when they don’t have any of this nifty forensic testimony. And in most cases, it’s not appropriate to have forensic testimony, there’s no need for it. But the jurors, having seen all these CSI shows, are perhaps less likely to convict, because they say, “Well, this guy must not be guilty…we haven’t seen anyone in white coats, with machines, to prove guilt.” So, that’s the CSI effect. It kind of ramps up the pressure on prosecutors to produce the latest scientific gadgets in court, or else a defendant might go free.
NOLO: In movies and TV -- we often see stories like the Fugitive – where a person resists a police office to maintain their innoncence. We asked Paul Bergman whether it’s a crime to resist arrest even if you’re innocent.
PAUL BERGMAN: Sometimes it seems unfair, but somebody who is factually innocent could still be prosecuted for resisting arrest or escaping --- I mean, everyone understand the unfairness of it.
I guess the policy is that these matters ought to be fought out in the courts, where people are less likely to get hurt. If we allow people to take justice into their own hands, that’s vigilante justice…a vigilante may be pursuing somebody who has committed a crime, but we don’t want vigilantes taking the law into their own hands; we want the arrest to be made and for guilt to be determined in court. In the same way, you could say that someone who has been arrested, though innocent --- it may be unfair to charge them with a crime because if they try to escape, the police officer may pull out a gun and shoot him, or the police officer may get hurt, so it’s a better overall policy to have those matters play out in court, not out on the street.